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In re In re Clean Air Act Admin. Inspection of the Bunker Hill Co.

Citation: 11 ELR 21084
No. No. 80-3446, 658 F.2d 1280/16 ERC 1552/(9th Cir., 10/13/1981) Aff'd

Affirming the opinion of the district court, 11 ELR 20558, the Ninth Circuit Court of Appeals holds that under § 114(a)(2) of the Clean Air Act the Environmental Protection Agency (EPA) is authorized to use non-Agency employees in making inspections of stationary sources. Looking to the plain meaning of § 114(a)(2), which refers to the "Administrator or his authorized representative," the court concludes that private contractors hired by the Agency to assist in the making of administrative inspections are representatives and are authorized. Given such support in the text of the statute, EPA's position that it may use non-Agency inspectors is entitled to judicial deference. Moreover, the legislative history of the Act attests to Congress' intent that EPA's enforcement program not be hindered by having to rely solely on Agency personnel. The court notes that a different interpretation of § 114(a)(2) has been rendered by the Tenth Circuit, but finds its reasoning unpersuasive. Finally, the court upholds EPA's authority to obtain ex parte warrants under § 114(a)(2).

[Opinions expressing similar interpretations of § 114 are reported at 11 ELR 20554 and 20555; decisions to the contrary are reported at 11 ELR 20560 and 20562. — Ed.]

Counsel are listed at 11 ELR 20558.

Before SNEED and BOOCHEVER, Circuit Judges, and ROTHSTEIN*, District Judge.