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

No. 80-2087 (D. Idaho October 15, 1980)

The district court denies the Bunker Hill Company's motion to quash an administrative search warrant directing it to admit both an Environmental Protection Agency (EPA) employee and a non-employee hired by the agency as an independent contractor for purposes of making an inspection of its zinc smelter in Kellogg, Idaho. There is no support in the Clean Air Act for Bunker Hill's claim that it must admit EPA personnel only. On the contrary, § 114(a)(2) of the Act provides that entry must be granted to the Administrator or his "authorized representative," a term which must be construed to include persons other than Agency employees. This interpretation is reinforced by Congress' use, in §§ 206 and 208 of the Act, of the term "officers and employees," a category of persons clearly more restrictive than "authorized representative." The court therefore orders that the previously issued warrant be enforced and that its effective date be extended.

Counsel for Bunker Hill Co.
William F. Boyd
Brown, Peacock, Keane & Boyd
P.O. Box 659, Kellogg ID 83837
(208) 784-1105

Counsel for EPA
M. Karl Shurtliff, U.S. Attorney
Federal Bldg., Rm. 693, 550 W. Fort St., Boise ID 83724
(208) 334-1211

[11 ELR 20558]

McNichols, J.:

This matter having come before the Court upon the United States' Application For An Order To Show Cause Why Bunker Hill Company, Inc., Should Not Be Held In Civil Contempt in Matter No. MS-2310 and the Bunker Hill Company's Motion to Quash Search Warrant Or In The Alternative To Stay Contempt Proceedings And For a Temporary Restraining Order in Civil Case No. 80-2087, and this Court having consolidated Matter No. MS-2310 with Civil Case No. 80-2087 upon the motion of the government, and the parties having fully briefed the issues and having argued the same before the Court on October 8, 1980, and the Court having reviewed the pleadings, affidavits and exhibits and being otherwise fully advised, makes the following Findings of Fact and Conclusions of Law and enters the following Order.

Findings of Fact

1. The United States Environmental Protection Agency (EPA) planned to conduct an inspection of the Bunker Hill Company lead and zinc smelter complex in Kellogg, Idaho, during the week of September 22, 1980, using an EPA employee and a private contractor as a representative of the EPA Administrator under § 114 of the Clean Air Act (42 U.S.C. § 7414). The inspection was intended to determine whether air pollution emissions at Bunker Hill, specifically sulfur dioxide (SO₂) and fugitive particulates, were in compliance with federally enforceable standards.

2. EPA notified Bunker Hill of the planned inspection by telephone on August 7, 1980, and by letter of September 5, 1980. On both occasions EPA informed Bunker Hill of its intention to have a private contractor, Mr. Irwin R. (Bud) Weisenberg, accompany Wayne Grotheer, an EPA employee, on the air compliance inspection.

3. No objection was made until September 19, 1980, two days before Messrs. Grotheer and Weisenberg were scheduled to leave for Kellogg, when Bunker Hill telecopied a letter to EPA setting out its conditions to allowing EPA's representatives to enter its Kellogg complex. These conditions included the requirement that EPA grant Bunker Hill the right to retain custody of any photographic film containing EPA photographs of the Bunker Hill complex at Kellogg, taken during the inspection, and the right to develop such film and return to EPA only those portions of the film not depicting information which the Company claimed to be confidential. Another condition was that EPA representatives verify that they meet OSHA requirements applicable to Bunker Hill employees working in areas EPA representatives would inspect, including evidence of a recent medical examination and results of quantitative fit tests showing that respirators to be worn by EPA representatives fit properly. Further, Bunker Hill attached to this September 19th letter, a "secrecy and hold harmless" agreement it would require Mr. Weisenberg to sign before the Company would consider allowing them on Company premises. The conditions contained in this agreement included the following:

a. Bunker Hill would retain the right to exclude Mr. Weisenberg from any area of the Company complex where processes, techniques, or other information of any kind claimed to be confidential by Bunker Hill could be observed or gathered;

b. Bunker Hill would retain the right to withhold any information of any kind, wherever located, which Bunker Hill in its sole judgment deemed inappropriate for disclosure to Mr. Weisenberg;

c. Mr. Weisenberg would be required to submit to Bunker Hill any reports or documents prepared in connection with his activities at the Company, regardless of whether they contained information claimed confidential by Bunker Hill, at the same time such reports or documents were submitted to EPA;

d. Mr. Weisenberg would be required to return to Bunker Hill any recorded information supplied by the Company, and all copies thereof in his possession, at any time upon Bunker Hill's written request; and

e. Mr. Weisenberg would be required to agree to hold Bunker Hill harmless from any liability based upon property damage or personal injury, including death, occurring to him from his presence on Bunker Hill premises even if the damage or injury were in part caused by Company negligence, unless Bunker Hill's negligence was the sole cause of such damage or injury.

4. In response to Bunker Hill's September 19th letter and proposed "secrecy and hold harmless" agreement, EPA postponed its planned September 22, 1980, compliance inspection.

5. On September 30, 1980, Messrs. Grotheer and Weisenberg traveled to the Bunker Hill complex in Kellog, Idaho, in an attempt to negotiate entry. Bunker Hill agreed to allow Mr. Grotheer to conduct the compliance inspection without undue restriction. However, the Company continued to demand that Mr. Weisenberg enter into the proposed "secrecy and hold harmless" agreement.

6. The contract between EPA and Del Green Associates, Mr. Weisenberg's employer, among other conditions expressly prohibited Del Green Associates and Mr. Weisenberg from disclosing claimed confidential business information to anyone other than [11 ELR 20559] EPA employees without the prior written approval of the EPA Deputy Associate General Counsel for Contracts and General Administration, and expressly prohibited Del Green Associates and Mr. Weisenberg from using any confidential business information obtained during their performance of the contract to compete with any business to which the confidential information relates. The contract also recited that these contractual terms were for the benefit of, and could be enforced by, both EPA and any affected business having a proprietary interest in the information.

7. EPA, through the United States Attorney, obtained an administrative inspection warrant from the United States Magistrate, which authorized Mr. Weisenberg as a duly authorized representative of the EPA Administrator to have access to enumerated areas and records at the Bunker Hill complex in Kellogg. The warrant was based on a finding that Bunker Hill had been selected for inspection on the basis of a neutral administrative scheme by which EPA schedules routine periodic inspections, and authorized entry solely on the basis of § 114 of the Clean Air Act (42 U.S.C. § 7414).

8. The warrant was issued only to EPA's representative, Mr. Weisenberg, and did not name Mr. Grotheer, because Bunker Hill consented to Mr. Grotheer's entry to the Company complex. During the inspection Mr. Weisenberg was to be accompanied, and at all times supervised, by Mr. Grotheer.

9. The administrative warrant was both issued to EPA and served upon Bunker Hill on October 2, 1980. Upon presentation of the warrant, Mr. Weisenberg was again denied entry to the Company premises.

10. On October 3, 1980, the United States filed with the United States Magistrate an application for an order to show cause why the Bunker Hill Company should not be held in civil contempt for failure to allow entry pursuant to the administrative warrant issued by the United States Magistrate. That matter was subsequently transferred to this Court. On October 6, 1980, the Bunker Hill Company filed a complaint naming EPA and Mr. Weisenberg as defendants. The complaint seeks both declaratory and injunctive relief with regards to the inspection of Bunker Hill's complex which the administrative warrant authorizes. Also, on October 6, 1980, the Bunker Hill Company filed a motion to quash the warrant or in the alternative to stay the contempt proceedings and a motion for a temporary restraining order against the EPA and Mr. Weisenberg.

Conclusions of Law

1. The issue of which persons may be "authorized representatives" of the EPA Administrator for purposes of gaining entry under § 114(a)(2) of the Clean Air Act, 42 U.S.C. § 7414, which was raised by Bunker Hill in this proceeding, is an unsettled question of law not previously decided in this circuit. Therefore, the Bunker Hill Company's refusal to honor the administrative warrant issued by the United States Magistrate authorizing entry of EPA's contractor, Irwin R. (Bud) Weisenbeg, does not warrant entry of an order finding the company in civil contempt.

2. Congress did not intend that the right to enter appropriate business premises for the purpose of conduction inspections under § 114(a)(2) of the Clean Air Act be limited only to officers and employees of the Environmental Protection Agency.Section 114(a)(2) entitles cThe Administrator or his authorized representative, upon presentation of his credentials" to enter and inspect premises. The term "authorized representative" plainly means any person whom the Administrator authorizes to be his representative, and may include persons other than officers or employees of the Environmental Protection Agency. The language of the Clean Air Act demonstrates that where Congress intended right of entry to be limited to Environmental Protection Agency officers and employees it said so. See § 208, 42 U.S.C. § 7542. Further, as § 114(c) in the context of generally proscribing disclosure of confidential information allows such disclosure between "officers, employees, or authorized representatives of the United States," this use of the term "authorized representative in the disjunctive with "officers or employees" expresses that Congress intended the former term to refer to individuals other than officers or employees of the United States. The term must be given the same meaning as it is when used in § 114(a)(2). Therefore, where Congress granted a right of entry to "the Administrator or his duly authorized representative" it intended that the right to enter premises for the purpose of conducting § 114 inspections could be delegated by the Administrator to persons other than officers or employees of the Environmental Protection Agency.

3. The legislative history of the Clean Air Act shows that Congress deliberately chose "authorized representatives" in § 114 of the Act over the more restrictive language "officers and employees," as appears in §§ 206 and 208 of the Clean Air Act, 42 U.S.C. §§ 7525 and 7542.

4. 40 C.F.R. § 2.01 et seq., (Subpart B), sets out procedures for asserting confidentiality claims in order to safeguard confidential information obtained by EPA employees and by contractors authorized as representatives of the EPA Administrator pursuant to § 114(a) of the Clean Air Act. These procedures, together with other available remedies, provide adequate protection to the Bunker Hill Company with regard to its claims concerning confidential treatment of information obtained pursuant to § 114 of the Clean Air Act.

5. The United States Environmental Protection Agency is entitled to enforce its authority to conduct inspections under § 114 of the Clean Air Act by obtaining ex parte warrants from United States District Courts.

6. The administrative warrant issued in this case entitled Warrant to Enter, Inspect, Sample, Monitor and Review Records was properly issued by the United States Magistrate based upon the application for that warrant and the affidavits that were filed by the United States therewith.

7. The administrative warrant issued by the United States Magistrate is not impermissibly broad in view of the authority granted to the Environmental Protection Agency to enter premises under § 114(a)(2) of the Clean Air Act.

8. Irwin R. (Bud) Weisenberg, an employee of Del Green Associates, a private contractor under contract to EPA, is an "authorized representative" within the meaning of that term under § 114(a)(2) of the Clean Air Act.

9. Neither the officers or employees of the Environmental Protection Agency nor its private contractors duly authorized as representatives of the EPA Administrator can be required by the Bunker Hill Company to sign its proposed secrecy and hold harmless agreement prior to or as a precondition to obtaining entry under § 114 of the Clean Air Act.

10. The Environmental Protection Agency has authority under § 114 of the Clean Air Act to take photographs of the facilities and equipment it inspects.

11. the Bunker Hill Company cannot require the Environmental Protection Agency or its private contractors duly authorized as representatives of the EPA Administrator to submit film to Bunker Hill for development and screening for possible confidentiality concerns. The Bunker Hill Company may, however, claim that any or all of the information depicted in photographs taken by EPA during a § 114 inspection is confidential, and secure to such photographs the protections provided by 40 C.F.R. § 2.201 et seq.

12. The Bunker Hill Company cannot require the Environmental Protection Agency or its private contractors duly authorized as representatives of the EPA Administrator to provide assurances to Bunker Hill that these contractors or agency employees meet the requirements of all OSHA safety and health regulations as a precondition to entry to the Bunker Hill plant under § 114 of the Clean Air Act.

13. The administrative warrant issued by the United States Magistrate in this matter, entitled Warrant to Enter, Inspect, Sample, Monitor and Review Records, should be extended until the 22nd of October and ordered enforced.

14. The Bunker Hill Company's motion to quash the administrative warrant issued by the United States Magistrate in this matter is without merit and should be denied.

15. The Bunker Hill Company's motion for a temporary restraining order filed in this case is without merit and should be denied.

Order

Based upon the foregoing Findings of Fact and Conclusions [11 ELR 20560] of Law, IT IS HEREBY ORDERED that the Bunker Hill Company's Motion to Quash the Administrative Warrant or in the Alternative to Stay the Contempt Proceedings is denied;

IT IS FURTHER ORDERED that the Bunker Hill Company's Motion for a Temporary Restraining Order is denied;

IT IS FURTHER ORDERED that the United States' Application for an Order to Show Cause Why Bunker Hill Company Should Not Be Held in Civil Contempt is denied;

IT IS FURTHER ORDERED that the Administrative Warrant entitled Warrant to Enter, Inspect, Sample, Monitor and Review Records issued by the United States Magistrate to Irwin J. (Bud) Weisenberg, an authorized representative under contract to EPA, is to be enforced and the effective date of said warrant is extended until October 22, 1980;

IT IS FURTHER ORDERED that execution of the Administrative Warrant is stayed until after the 18th of October 1980, pending the Bunker Hill Company's decision to file a notice of appeal from this decision.