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EPA v. Alyeska Pipeline Servs. Co.

ELR Citation: 18 ELR 20491
Nos. No. 86-4427, 836 F.2d 443/26 ERC 2129/(9th Cir., 01/05/1988) Aff'd

The court holds that the Environmental Protection Agency (EPA) properly issued an administrative subpoena under §11(c) of the Toxic Substances Control Act (TSCA) in connection with its investigation of alleged oil discharges at Alyeska's oil loading terminal in Valdez, Alaska. At the same time that EPA was investigating incidents in which tankers allegedly dumped contaminated tank washings from other ships as ballast at the terminal, the Agency was also processing Alyeska's application for a renewal of its discharge permit under the Federal Water Pollution Control Act (FWPCA). The court initially holds that the appeal of the district court's order enforcing EPA's subpoena is not moot, even though Alyeska has now complied with EPA's requests. The court then rules that whether the district court correctly limited the scope of judicial inquiry in the subpoena enforcement proceeding is a question of law reviewable de novo in this court. The court holds that the district court properly determined that it should enforce the subpoena. Although EPA has no authority to issue administrative subpoenas under the FWPCA, it does have regulatory jurisdiction to investigate the facility under TSCA. Secondly, the procedural requirements for issuing a subpoena were met. Lastly, requests seeking information about any chemical substance, including oil spills, are within the scope of a TSCA investigation, since the Act covers the regulation of all chemical substances. The court holds that the subpoena was not issued for an improper purpose. Although EPA failed to provide evidence that Alyeska was disposing of chemical substances in violation of TSCA, the Agency is authorized to investigate merely on suspicion of violations. EPA is also not required to resort to other statutes for investigative authority before proceeding under TSCA. Finally, the court holds that the district court properly limited the scope of the subpoena.

[The district court's opinion is published at 17 ELR 20650.]

Counsel for Plaintiff-Appellee
Edward J. Shawaker, John T. Stahr
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4010

Counsel for Defendants-Appellants
Robert Sussman
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20044
(202) 662-6000

Before Goodwin and Anderson, JJ.