*3 WEICK,* Judgе, Senior Circuit Before SILER,** Dis JONES, Judge and Circuit Judge. trict WEICK, Judge. Circuit Senior court from to this appealed has Stauffer denying its of the district court order quash an administrative motion to invalid ex parte warrant issued United search EPA to Magistrate, which authorized States inspection pri- pollution conduct an air belonging to property vate commercial Stauffer, located at Mt. namely, plant its Pleasant, Tennessee, inspection to be said employees of made Tennessee, but also EPA and State object- private unauthorized contractors it from protect ed to disclo- by Stauffer proprietary sure of its trade secrets or other others with a competitors information to refused to conflict of interest. Stauffer employ- permit inspection include pri- such private ees of contractors unless signed a nondisclosure vate contractors against agreement Stauffer dis- protect by private contractors Stauffer’s closure re- contractors private trade secrets. The agree- to execute the nondisclosure fused Stauffer prepared ments Stauffer * ** Jr., Siler, Judge, Judge Judge Eugene E. Weick became a Senior Honorable Circuit West- for the Eastern and the close business on District Court December States Kentucky, sitting by designa- ern Districts of tion. to permit prop- parties already litigated refused of its the ques- erty. contempt EPA cited Stauffer with can tion who act as an authorized repre- refusing inspection. court for Stauffer prior sentative of the EPA in a lawsuit in then filed its to quash. motion The con- Wyoming, the federal courts which decid- tempt quash citation and motion to question ed the in favor of Stauffer and together by judge. heard the district He against EPA. Stauffer Chemical Co. v. quash holding denied motion to that the EPA, 14 E.R.C: affirmed 647 F.2d phrase representative” Administrator, as used Section Because agree the Clean Air 42 U.S.C. governed by action is collateral es- 7414(a)(2)1 authorizes the use toppel judicata, and res it is unnecessary in making issues, reach other but we will treat all of *4 inspections such and that was re- Stauffer the issues they because were briefed by quired comply to with the warrant. He parties. both contempt dismissed the citation holding “[bjecause legitimately Stauffer be- I private lieved that contractors were not au- thorized representatives under the Clean Act, The Clean Air 42 U.S.C. 7401 et §§ Act, Air EPA’s motion for is contempt de- seq., up sets a system dual state-federal of If nied. subsequently Stauffer’s refuses Act, air the pollution enforcement. Under to entry its Mt. Pleasant to plant responsible the Administrator is of the EPA representatives of the Administrator for establishing national ambient air quality presenting proper credentials and war- standards. 7409. The U.S.C. states § rant, a contempt citation shall issue.” This responsible are then primarily for enforcing constituted a final appealable order. standards, subject supervision these and opinion
The
of
the district court
approval
the
by the EPA. See 42 U.S.C.
reported
case is
States
7412.
to its
§§
Pursuant
man-
Co.,
Stauffer Chemical
Environmental hold Carolina, nondisclosure signed a suitable North IV, also includes Alabama, team left then Carolina, agreement.2 Flori- Kentucky, harmless South inspection. conducting plant withоut da, Georgia. Hund, negotiations Mr. W. April, John During month On October employed by company scientist carried on between Stauffer an environmental IV, Region PEDCo, Connecticut, Division headquarters Enforcement EPA’s inspec- overview attempt an unannounced a mutu- conducted in an to arrive the EPÁ Company’s ele- agreement. tion Chemical of Stauffer nondisclosure agreeable ally in Mt. plant furnace phosphorus mental with the under contract PEDCo accompanied Pleasant, He Tennessee. was previously admitted had been Division the Tennessee employees of Bow, plant two after Silver Montana Stauffer’s significant A Pollution Control. of Air There- signing agreement. a nondisclosure the number three pollution, air source of fore, copy PEDCo forwarded to Stauffer kiln, not operation was nodulizing used agreement which had been result, pollutants the amount day. As a sug- together some plant, the Montana being representative emitted EPA. requested gested modifications conditions, Mr. Hund so operating normal in- proposal, sent back counter *5 follow-up inspection a decided that suggest- the provisions corporating many necessary. be EPA, adding new also some by ed the but in- proposals, Certain of Stauffer’s ones. was set for follow-up inspection The con- exclusive cluding giving one Stauffer re- day, March 1980.' On that Hund to be plant were over what areas trol Plant, along turned to the Mt. Pleasant the requiring and another one inspected the employee with an Tennessee Division weeks advance to.give two EPA Stauffer ac- of Air Pollution He also Control. deemed unac- any were inspection, notice of companied by this time Ronald Hawks and EPA. Conse- by and the ceptable PEDCo Saunders, Gary employees who were of a agree- they rejected proposed quently, this private company under contract with the Thereafter, par- the May on 1980. ment Environmental, (“PED- EPA, Inc. PEDCo August. contact until ties had no further Co”). brought Hawks were Saunders and had along they on visit because recent- an 7,1980, the EPA submitted August On ly inspection conducted an EPA overview a search war- affidavits for application and phosphorus Stauffer’s elemental furnace inspect plant, the Mt. Pleasant rant to Florida, plant Tarpon thus Springs, and parte. ex magistrate granted which were processes equip- familiar with the and permitted The warrant ment involved. employees duly authorized full-time [of rep- group EPA], accompanying, The ex- and plant arrived and to ... plained EPA Thеy under contract purpose their visit. resentatives [plant] premises were dur- plant manager entry upon informed have by the purr for the operating normal hours objection ing Stauffer had no to an sam- conducting inspection, being an by pose conducted EPA and Tennessee monitoring pursuant to Section employees, contrary pling, state that was but case, employees policy protect in the instant 2. The is to The PEDCo stated reason for Saunders, proprietary previously been ad- trade Hawks and had information as to secrets Tarpon Springs, to, plant might privy to Stauffer’s which outsiders mitted become Florida, being manager, might plant wrong without its which fall into hands and agreement. subject sign damages nondisclosure asked Stauffer to substantial might difficulty that this was unauthorized Stauffer maintains which it have to recover com- policy instance, company plete For and was violation reimbursement. Stauffer permitted. alleges been should also serves as contractor PEDCo competitors. for some of Stauffer’s Act, estoppel par- the Clean Air collateral because the same litigated 7414.... previ- ties have identical issues § ously, resulting in decision in favor of long plant There followed a list of facilities against Stauffеr’s and EPA federal were inspectors and records Wyoming district court in and affirmed have access to. Court of Appeals warrant, with the an inspection Armed Tenth Circuit. Hund, Ms. Carol consisting team EPA’s As noted previously, hearing of Air Donohue the Tennessee Division federal district in the present court case Control, Messrs. Hawks and Pollution was held on be- August Shortly 1980. of PEDCo Mt. Saunders went Stauffer’s that, on fore June the federal plant August They Pleasant district in Wyoming opinion court issued an accompanied attorney. also EPA holding phrase repre- an Again impasse. there was After confer- sentative” in Section ring company headquarters by tele- 7414(a)(2), 42 U.S.C. does not phone, plant inspec- officials informed the contractors, include private particularly tors that state and federal competitors with a conflict of interest an inspection, were free conduct an but that grind axe to who interested in the PEDCo would not be admit- obtaining secrets. re ted Stauffer’s trade In signing agree- without a nondisclosure Company, Stauffer Chemical E.R.C. 1737 again, ment. Once left group without (D.Wyo.1980), conducting (That called I”. inspection. “Stauffer decision was subsequently ap- affirmed on day, petition next filed peal sub nom. Stauffer Chemical Co. v. En- district court to hold in contempt Agеncy, vironmental Protection for its failure to honor the warrant. At the 1981)). time, same quash Stauffer filed a motion to temporary warrant and for a facts Stauffer I were identical to restrain- ing order those in enjoining (The except they its the instant case arose enforcement. *6 latter in a request subsequently plant of Stauffer’s at different loca- withdrawn by agreement.) morning mutual tion. One in 1980 a April A consolidated team of hearing inspectors on both EPA motions was held in the arrived unannounced at District Stauffer’s Leefe Plant Sage, Wyo- Court for the Middle District of near 29, on in August ming, Tennessee order to conduct a Clean Air Act 1980. The court oversight issued 17,1981, inspection. its decision on The team April consisted of holding employees, the term state and EPA representative” employ- two in private ees of a Corpora- contractor GCA Clean Air Act “may willing include tion. private 511 Stauffer was to admit the contractors.” F.Supp. government employees at 746. but not the Accordingly, court re- GCA quash However, personnel, fused to they signed unless first a nondis- warrant. it also agreement. declined to hold in closure and hold contempt, Stauffer harmless finding that EPA team did legitimately agree Stauffer this condition believed conducting and left without inspection. contractors were not authoriz- representatives ed parte EPA then an purposes for obtained ex clean air administra- inspections. tive search Magistrate Execution of warrant from a U. the warrant has S. stayed been pending appeal. authorizing to conduct an through Leefe Plant the use the two employees. GCA When re- inspectors II warrant, plant turned to the with the
COLLATERAL ESTOPPEL Stauffer still refused to admit the GCA A present threshold issue in ap signed they unless agree- peal is Stauffer’s contention refused, that considera ment. This condition was again tion of governed case is the doctrine and the again departed team ac- without
1180 an estoppel, collateral once issue is then Under its mission. Stauffer filed complishing necessarily determined actually temporary restraining for a application an competent jurisdiction, em court of that de- the two GCA EPA and enjoining order subsequent and a termination conclusive executing the warrant from ployees warrant, the dis on cause action suits based a different quash motion litigation. per prior hearing, involving party to the an extensive after court trict Shore, 439 using Hosiery Parklane Co. v. U.S. EPA from GCA enjoined manently 645, 5, n. n. 649 58 companies other 326 99 employees of S.Ct. Scott, EPA, inspec (1970); Collateral Es- with L.Ed.2d contract similar 56 Harv.L.Rev. plant Wyoming toppel by Judgment, Stauffer tions (Second) Upon (1942); 2-3 Restatement of Stauffer. permission without (Tent. Apr. Draft No. Judgments of the district judgment appeal I, 15, 1977) (issue Application preclusion). 647 F.2d at was affirmed. Stauffer court the purpose of both central to doctrines is 1076-77 have been estab- civil courts that, because therefore contends Stauffer lished, the resolution of dis- conclusive I and parties and issues within South- putes jurisdictions. their identical, case were and the Co., R. supra, Pacific 168 U.S. at ern EPA in against were resolved issues 27; Hart Co. Railroad S.Ct. Steel prior litigation, government acting Co., 294, 299, 37 Supply 244 U.S. S.Ct. collaterally es- through agency, its EPA is 506, 507, (1917). pre- To L.Ed. relitigating from in this action the topped contesting parties matters clude repre- be of who can an “authorized issue and fair they oppor- had a full sentative” under Section 114 of Act. litigate tunity to their adversar- protects States, In Montana expense ies from the and vexation at- (1979), S.Ct. L.Ed.2d lawsuits, multiple judi- conserves tending Marshall, who opinion Justice wrote the resources, ju- reliance cial and fosters an unanimous one almost court by minimizing possibility action dicial dissenting opinion stated: of inconsistent decisions. precept A fundamental of common-law Court, judicata, Supreme res As to adjudication, the related doc embodied in recently by opinion delivered Justice judi estoppel trines collateral and res Stores, Rehnquist Department in Federated cata, a “right, question is that or fact Moitie, 394, 398, 101 Inc. v. U.S. distinctly put directly deter issue and (1981) L.Ed.2d stated: mined a court competent jurisdic There is added the doc- little tion ... cannot be disputed in a subse *7 judicata developed trine of res in the quent suit parties between the same or ” judgment of A final case law this Court. privies their .... Pacific R. Southern precludes the on the merits of an action States, 1, 48-49 v.Co. United 168 U.S. [18 relitigating or from parties privies their 18, 27, 42 (1897). S.Ct. Under L.Ed. 355] have been issues that were or could raised judicata, res a final on the mer judgment Sunnen, that action. Commissioner its bars further or by parties claims their 591, 715, 719, 333 U.S. S.Ct. 92 [68 privies based on the cause of action. same (1948); v. County L.Ed. Cromwell of 898] Sac, 351, County Cromwell v. 94 U.S. Sac, 94 U.S. 352-353 L.Ed. [24 195] (1877); L.Ed. Lawlor v. Na [24 195] (1877). tional 349 U.S. Corp., Screen Service 865, 867, parties 99 L.Ed. as well as the S.Ct. Since issues [75 1122] (1955); Moore, IB J. Practice law in the case and present Federal fact and Stauf- 1974) (here identical, 10.405[1], pp. (2d ed. I were there is no valid 621-624 fer reason Moore); a (Second) why they relitigated inafter IB should be second Restatement Judgments (Tent. present brings No. time in the It up Draft case. § 28, 1973) id., (bar). gоvern- (merger); question, many Mar. how times does §
H81 ment have to lose a ease before either the Ill doctrines of estoppel judi- collateral or res A cata applied? dealing are If we were The central issue in this case if not barred private parties rather than the government, estoppel judicata collateral and res is the there would no question about it. If meaning phrase repre- really believed decision of the 114(a)(2) sentative” in section of the Clean Tenth Circuit in Stauffer I wrong, Act,3 7414(a)(2). That sec- could have petitioned Supreme Court provides: tion certiorari, but it did not avail itself of (a) the Administrator or his authorized that remedy, and it is do too late to so now. presentation representative, upon of his EPA cannot collaterally attack the Tenth credentials— Circuit decision in the present case. (A) to, shall a right entry have upon, The court in Montana also addressed the through any premises or person of such or exception questions “unmixed law” which any required records to be main- quoting on 440 page U.S. 99 S.Ct. p. tained paragraph (1) under Moser, 978 from United States v. located, are (1924) S.Ct. L.Ed. (B) may at reasonable have times access as follows: records, to and copy any inspect any mon- itoring equipment required
“Where,
method
un-
a
example,
deciding
court in
paragraph (1),
der
sample any
emis-
law,
a case
has enunciated
rule of
sions
person
required
which such
parties in
subsequent
upon
action
sample
paragraph (1).
different
not estopped
demand are
insisting
otherwise,
merely
law is
date,
To
few
upon
courts have been called
parties
because the
question.
are the same
both
to consider this
In addition to the
fact,
case,
cases.
question
right
But a
lower court in the
dis-
instant
Ninth
tinctly
recently
and Tenth Circuits
adjudged in the
examined
original action
issue, reaching opposite
conclusions.
disputed
subsequent
cannot be
in a
ac-
Company
See Bunker Hill
Lead and Zinc
tion, even though the determination was
Smelter v.
Environmental
reached
an
erroneous view or
Agency,
Protection
the words 1981), the F.2d Agency, bill, op- as the Senate which used as the same result Ninth reached Circuit employees,” “officers or phrase posed to the The court in the case at bar. the district bill, and rеa- in the House used which was plain court reasoned the Bunker Hill ver- adoption of the Senate soned that is representative” of “authorized meaning give a deliberate choice to evidenced sion employees,” than “officers or broader in- authority making broader the EPA Act the Clean and that Water F.2d at meaning of plain because spections weight legislative history was entitled to no than “officers broader “representative” the enactment of it came after because at The F.Supp. 747. employees.” or also at 1284. The court Air Act. Id. Clean reasoning to dif- similar court applied ratified Congress tacitly had found that 114(c) section and the mo- ference between by approv- private contractors EPA’s use of Act, of the provisions tor vehicle use. their Id. ing appropriations 206(c) 208(a), found in sections 7525(c) 7542(a). opposite at Since U.S.C. Tenth Circuit arrived §§ use Chemical Co. phrase latter “officer In Stauffer sections conclusion. F.2d Agency, court employee,” the concluded that Con- Protection Environmental been 1981), which gress have made a deliberate choice must I, held 114(a). the court term to as Stauffer referring use a broader in section Id. “au- cannot be an private contractor 746. that a of the Administra- representative” thorized placed great court district also 114(a)(2). The Tenth Cir- tor under section “officers, weight phrase on the use of the meaning approach, rejected plain cuit employees, representatives” or authorized legislative histo- and relied instead 114(c) Act, speaks of the ry 114(a), which 7414(c). That section allows Admin- Health, and Wel- Department of Education istrator to disclose confidential information (DHEW) (now EPA), “personnel,” and fare 114(a) obtained in the in- course of section are contractor noted spections officers, employees, to “other personnel, not EPA but contractor’s representatives of the at 1078. The court personnel. it. legitimate States” who have need for legislative also the Clean Water Act found As 114(c), repre- used in section noting post- While history persuasive. clearly sentatives” means someone other generally should enactment statements than employees, because otherwise it weight contemporaneous less than accorded Therefore, be redundant. reasoned legislative history, court concluded that court, “authorized must representative” legislative history the Clean Act Water mean someone other than in sec- close because of the should be considered tion 114(a) as well. Id. relationship subject matter between The third the district foundation span time between two acts and short holding court’s was reject its decision addition, holding In them. Id. legisla- non-authoritative a in the statement that, could be authorized private contractors Act, history tive Clean Water representatives 114(a) would under Section Act, after Air to the enacted the Clean unacceptable anomaly create an between per- effect that the Clean Air Act does not Acts, i.e., Clean Water mit be used as “authorized EPA could use contractors to con- representatives.” (This passage Act, will be dis- inspections duct the Clean Air further, cussed infra.) The court admitted but under the even Clean Water troubling, wording that this statement was con- though but two statutes *9 post-enactment virtually cluded that statements of identical. Id. bills, amalgam of the
IV House and Senate I, relating pollution air stationary title to precedents conflicting With these in sources, being derived from the Senate bill mind, outset, At the begin analysis. our II, vehicles, pertaining and title to motor frankly although let us consist- admit bill, coming bill. The House house ency statutory interpretation, a virtue in 17255, consistently phrase H.R. used portions various Air Act are employees” throughout. “officers or Thus other, making not consistent with each it 112(f) of provided: H.R. 17255 impossible entirely satisfy- to arrive at an For purposes of enforcement of this sec- ing Spencer result. See Citizens Save tion, employees duly officers or designat- Environmental County United States ed by Secretary, upon ap- presenting Agency, (D.C. Protection 600 F.2d propriate and a credentials written notice Cir.1979). does The statute itself not define person the owner are charge, or “representative.” See enter, times, authorized to at reasonable noted, As the court below both parties in any establishment which Secretary this case have submitted briefs. excellent has Indeed, reason believe is or be this case is an apt illustration regulations violation of issued under this Chief Justice Marshall’s comment determine any whether such the mind labors discover the “[w]here occurring.... violation design legislature, every- seizes ” thing from which aid be can derived... . Cong., 112(f) H.R. 91st 2d Sess. § Fisher, (2 Cranch) United States v. (1970), reprinted Legislative in A History of 358, 386, 2 (1805). L.Ed. 304 The lower the Clean Air (hereaf- Amendments of 1970 correct, court was also though, saying ter “Air Leg. Hist”) (1974) cited as at 923 there is little that could make the (emphasis added). problem resolution of this easier. bаl- On bill, The hand, Senate on the other used ance, however, we believe Tenth Cir- phrase representative.” position cuit’s is the correct one. 116(a)(3) provided Section of S. 4358 part: The district court and the Ninth
Circuit relied
upon
plain meaning of
For the
...
purpose
making
inves-
any
“representative.”
word
However,
tigation
plain
any building,
under this Act of
meaning
structure,
of statutory
monitoring
language
equipment,
is not al
or other
ways
Overholser,
subject
Lynch
facility
decisive.
air quality
stan-
705, 710,
Secretary
U.S.
dard ...
82 S.Ct.
or his authorized
8 L.Ed.2d
(1962);
representative
right
entry
shall have a
Missouri Pacific Railroad Co. v.
to,
Austin,
upon
through
building,
such
struc-
This is
ture,
facility,
presentation
especially
of his
legislative
true when
history
credentials.
suggests a different interpretation. Cleary
Chalk,
488 F.2d
(D.C.Cir.1973).
Cong.,
S.
91st
2d Sess. §
legislative
Hist,
history
an act must
exam
(1970),
in Air
reprinted
Leg.
at 570
ined in order to
Congressional
ascertain
in
(emphasis added).
tent, even though the statutory language
respective legislative
histories of
appears to be plain.
Kelly,
United States v.
bills
meaning
these two
did not discuss the
ters’ facilities
and
(4th
legislative history shows that no difference
equivalent. Although
uted
sumed that a difference in
flects a
and the Senate’s
tween the House’s
Congress
5374, 5381.
and
and
Conf.Rep.No.91-1783,
EPA’s
which was enacted
Amendments states
investigative
thorized
sonnel,”
bill.
seen,
114(a)
171 (1974); see Holt v.
Cir.
[1970]
great importance
[1970]
legislation
inspection
Id.,
Congress
followed
personnel,
fact
while
1980).
difference in
entry
conference
Although the district court attrib
what motivated the
reprinted
considered
entry
construing legislation
action.
Moore
U.S.Code
intended,
U.S.Code
It is therefore
5379-80.
personnel” and
language
“the
since the
itself
theAs
is not
DHEW
in Air
they are the contractor’s
Senate
“officers or
language of the Senate
report
that the House bill au
contractors are
inspection by
Harris,
DHEW
did
Cong. & Ad.News at
I,
and
Air
91st
to the difference be
Tenth Circuit
it is
meaning,
Cong. &
Am.Jur.2d Statutes
court has
The final
1185 7601(a). enough, U.S.C. That cally provides that in the context of section section § 114(c), representatives” obvi- part “may delegate that the Administrator ously means someone other than officers or or of employee officer the Environ- because it would be otherwise Agency pow- mental Protection such of his agree at 746. We F.Supp. redundant. Act, ers and duties under except only that is the reasonable conclusion that regulations, as he making may of deem 114(c), regard to section but disa- expedient.” necessary (Emphasis or add- gree the use “representatives” that in ed.) argues The EPA that “Ad- word that section controls the use of that word in 114(a)(2) ministrator” in section should be 114(a). section construed mean or employee” “officer interpretation We believe that the of the assumption that the Administrator has word “representative” these various sec- already delegation authority exercised his simply tions is grammar. matter of 301(a), under section and therefore “autho- “Representative” 114(c) in section must rized representative” means someone other mean than or someone other officers em- employees. than or While this in- officers ployees they already because been terpretation ingenious, is we think that a However, employ- mentioned. officers and reading more natural is that “authorized 114(a) ees are not mentioned sections representative” contemplates delеgation (d). apply meaning “repre- To the same which, by 301(a) authorized section sentative” those sections lead to course, is limited to or employees. officers result absurd that the Administra- Moreover, the word “Administrator” tor private contractors 302(a), defined in section 42 U.S.C. pollution inspections, could make and EPA 7602(a), Administrator as “the of the En- § employees could not. Agency.” vironmental Protection The stat- utory of that word is definition therefore Therefore, only logical conclu official, limited to the named and does not sion is “representative” word as include or employees. officers used in section Air 114 of Clean Act means EPA officers or employees, unless Our task is the fact complicated enumerated, are already they latter comparable, that the Air Act has but event, 114(c). are in section In that separate, provisions of motor plain meaning i.e., of “representative,” one vehicle manufacturers’ engines standing acting or through for another del dif plants, provisions and these are worded egated authority, controls. We realize that Act, 206(c) of the ferently. Section leads undesirable result 7525(c), permits “officers or em word U.S.C. “representative” has different mean § ings statute, designated in differеnt the Administra portions ployees duly but we suggest that plants this is one of the tor” to enter the of motor vehicle instances in which one is simply testing forced to conclude purpose manufacturers there is a lack congruence 208(a), between engines. motor or vehicles Section one section the statute and 7542(a), another. The 42 motor vehicle requires U.S.C. § phrase same used in different sections of a pro to maintain records and manufacturers complex act does not necessarily carry the part: vides in meaning same in each context. re Peti In shall, Every re- manufacturer ... tion of Wong, Chin Thloot Har F.Supp. quest des- employee duly of an officer or (S.D.N.Y.1963). Administrator, ignated permit This construction the phrase “authoriz- such or employee officer reasonable times, ed representative” in section copy to have access to and such Act, 301(a) buttressed records.6 208(b), 7542(b),
6. Section
is com-
mits
§
U.S.C.
the Administrator
to disclose confidential
parable
114(c),
7414(c),
officers,
employees,
to section
§
U.S.C.
information to “other
or
regarding
records,
confidentiality
per-
representatives
the United
way
the other.
it one
Sheftic
struing
1970 Clean
Amend-
At the time
(N.D.W.Va.1969).
Boles,
F.Supp. 1347
enacted,
existing
was an
there
ments were
to hоld
illogical and inconsistent
It would be
former
U.S.C.
207(a) of the
use
sec-
the EPA
to the
1857Í-6, comparable
§
stationary
inspections under
to conduct
7542(a), which used
208(a),
tion
Air Act but
the Clean
portion
The 1970 source
employee.”
phrase
“officer
*12
portion of the same
the motor vehicle
from which the
under
bill, H.R.
House
derived, Act.
Act was
II of the
title
retained the
in
tive”
ate version
ty
to
ployee” in former
section
argues, and the
deliberate decision
ited
they
these sections should be construed so that
and,
stationary sources
and
114)
weAs
give
with
using
choice of
harmonize
than for
in
the EPA
EPA officers and
114(a)
regard
enacting
think, preferable
However,
language of
using “authorized
words “officer
seen, Congress chose the Sen-
as
motor vehicles
to
and
broader
district court
opposed
stationary
and
section 114. The
on the
section
entry power
each
it is
motor
inspection
the former statute
representative”
to “officer or em-
employees.
other, i.e.,
part
just
—to
207(a)
sources
vehicles
(sections
agreed,
as
representa-
employee.”
hold that
Congress
for both
logical—
shows
authori-
(section
so that
is
that
lim-
part
208.
authority under section
discussion
der
does not reflect
tory purposes
lish
different
creates an
supra.
cusses
not mention
Ordinarily,
between
Sess.
Cong. &
Conf.Rep.No.91-1783,
section
inference
that
Compare
(1970),
each section of the
Congress
Since
no difference was
section 114 and
things.
Ad.News
of section
Moreover,
206. The conference
inference that
the use of different
reprinted in
is
and
any
negated.
difference
to
However, when the statu
legislative
discussion
conscious
give
the
206, id. at
114 was taken from
114 than it has
final
5379-81 with
legislative
sections 206
Moore v.
91st
Congress meant
[1970]
in phraseology
fact
history
EPA
choice
bill,
section
report dis
Cong.,
5382-84.7
intended,
language
U.S.Code
but
broader
history
Harris,
on the
estab
does
and
un
114
2d
bill
sections 206 and
and
of the same
Senate
portions
Different
bill,
showing a
House
rather than
interpreted
read
from the
statute should be
and
con
it
Congress,
other,
part
choice on the
sistently
avoiding
with each
conflicts.
conscious
likely
product
the final
County v.
that
Spencer
Citizens to Save
seems more
being
the two bills
tacked
was a result of
Agency,
Environmental Protection
States
thought being given
870;
without
supra,
together
F.2d at
United States v.
Toledo,
wording.
in their
Co.,
small difference
Peoria & Western Railroad
hu
must sometimes be made for
F.Supp.
(N.D.Ind.1968);
Allowance
American
leg
Ladd,
drafting
and
Cyanamid
709 man error
inadvertence
F.Supp.
Co.
Spencer County
(D.D.C.1964).
determining
meaning
Citizens to Save
In
islation.
statute,
of a
Environmental Protection
a court must consider the
supra,
8.
pursuit
Section
Clean Water
contractors
with the
of research
1318(a)(B),
development.
U.S.C.
reads
§
as follows:
and
(B) the Administrator
or his authorized
pointed
9. Thedistrict court
the last sentence
representative,
presentation
of his cre-
quoted
regarding
in the
statement
dentials—
that,
103(b)(4)
and found
since
section
to,
(i)
right
entry
upon,
shall have a
Act,
7403(b)(4), permits
Clean Air
42 U.S.C. §
through any premises in
which
effluent
the use of contractors
for
devel
research and
any
source is
located or
which
recоrds
opment,
congruence”
there was a “lack of
be
required
(A)
to be maintained under clause
Acts,
tween the
and
Water
Clean
Clean
located,
this subsection are
making the
of the Clean
Act
relevance
Water
(ii) may at reasonable times have access to
legislative
questionable.
F.Supp.
history
records,
any
copy
inspect
monitoring
747. This overlooks
the fact
that
section
equipment
required
method
clause
Act,
104(b)(4) of
(A),
the Clean Water
33 U.S.C.
sample any
effluents
which
own-
1254(b)(4),
permits
EPA to
operator
required
§
also
contract
er or
source
such
private organizations
sample
research and de
for
under such clause.
velopment.
Report
As stated
the Senate
about Section
authority
to enter is not extended to
Act
shows
308(b)
expressly
Amendments
posal
noted
section
It
that
should also
added
Act,
“representative”
was
the Clean Water
the word
language
1318(b),
specific purpose
covering
tracks
Air Act in permitting
114(c) of the Clean
“the amendment clarifies
contractors:
facilities which
which we
such a
to be
lowed, it
that the
to make
Act,
merly permitted entry
Waste
makes no
ferent
Clean Water
Water
word
struction.
in section 114 of
that courts must consider the
preted
the Administrator
formation to
Air Act and section
Act are in
tion,
Tenth
section
1980, P.L. 96-482.
Solid Waste
which would result from
States.”10 Since
It is instructive to
As we have
but not to make
at
supra, giving
“representative”
Circuit
meanings
“authorized
Disposal Act,
statutes is identical. Such
the same
blatant contradiction into
114,
1079,
EPA could
inspections
sense,
pari
have been
Sheftic
representatives of
permitting
Disposal
Act,
if the
“other
seen, section
recognized
materia, and
lead to the anomalous result
generate
and
in section 308 of the
the Clean Air Act.
reinforces our
way.
even
to reveal confidential
Section 3007 of
representatives”
EPA’s
308 of the Clean Water
use
we
officers, employees, or
under the Clean Air
Boles,
compare
inspections
Act
discussing
though
word
decline to
We
private
U.S.C. §
private
manifest
and
or handle hazard-
interpretation
Amendments
114 of
should be
given
particular
supra.
two
inspection
consequences
the statutes
the United
contractors
interpreta-
under
6927,
the Clean
meanings
introduce
also seen
with
two dif-
the law.
wording
a result
As the
is fol-
I, 647
inter-
Solid
con-
for-
in-
No.96-172,
sentative”
to officers and
“where
reprinted
Air
and took
officers
below reached the same conclusion.
6927 shows
tions, and
Ninth
representative” in section
section
the Administrator
tractors to obtain
as
H.R.Conf.Rep.No.96-1444,
Sess.
of that
F.Supp.
News
er
expand
We
tion
tends
tives
Agency.
regulations
Hill,
logically
Act
Circuit’s position,
authority
Ninth
Senate
handle
inconsistency regrettable, quotes budget is also but a 1977 request it to “obtain least of being has virtue founded contractor assistance to solve non-attain- express language explicit posed differences in ment A problems by Class and Class intent, statements of B Congressional instead emitters.” treating identically-worded statutes dif- Supreme Court has noted ferently. Congressional that ratifications ef argues Congress has ratified its through appropriations fected acts. How use of contractors its failure amend ever, appropriation “the plainly must show 114(a) section in 1977 when it enacted that a purpose authority to bestow the precise year’s (which Clean Air Amendments added Endo, which is Ex claimed.” Parte 114(d)), approving EPA 303 n. 65 S.Ct. n. budget requests which included amounts 243 (1944). opinion, L.Ed. In our it budgeted for use of contractors Clean Air budget doubtful an obscure item enforcement activities. Stauffer counters kind murky language couched there has Congressional been no ratifi- quoted above plainly is sufficient to show cation, only inaction or We agree silence. Congressional ratify intent the EPA’s with the district court that the evidence interpretation representa “authorized way either on ratification is inconclusive. tive,” especially in the of an explicit fact expression of intent to the contrary in 114(d) Section was added the Clean legislative history the Clean Water Air Amendments of P.L. 95-95. EPA Also, supra. discussed appropriation that, argues Congress while was thus provide could be construed to pay amending it could have amend ment of contractors where the statute ed section if it was dissatisfied expressly authorized their such use with the representative” lan development other specif research
guage,
agree
but did not do so. We
with
ic purposes.
conclusion,
the district court’s
511 F.Supp.
appear
does not
that Con
By differing
court,
district
gress
question
considered the
of who is an
denigrate
do not
able opinion,
court’s
*15
representative
аuthorized
at
time.
cogent arguments
can
raised on
be
both
legislative
Neither the
history of
House
sides. The EPA
in the
filed affidavits
court
bill,
enacted,
which was
nor the conference
stating
forbidding
below
to use con-
report
question
discusses the
in
inspections
tractors
Clean Air oversight
representative.
H.R.Rep.No.95-294,
See
hamper
even cripple
program,
or
95th
1st
27
Cong.,
(1977), reprinted
Sess.
that,
might
argued
and it
era
also be
this
[1977]
U.S.Code
Cong.
&
Ad.News
1077,
of government
cutbacks,
it is
preferable
to
1105 and H.R.Conf.Rep.No.95-564, 95th
permit
the EPA to use contractors rather
Cong.,
(1977),
id.,
1st Sess. 135
reprinted in
employees.
than hire more full time
On the
1502,
hand,
1516. “Legislative silence is a
other
search
poor
execution of
war-
beacon to follow in
discerning
proper
traditionally governmental
rants is
func-
Allen,
tion,
statutory route.” Zuber v.
396
other owners
com-
U.S.
168, 185,
314, 323,
90
property
legitimate
S.Ct.
mercial
have
concerns
employees of the
contractors,
would contravene
application
and that when
[its]
in mani
holding
or result
overriding public policy
erred in its
to
court
the district
de
v. E. I.
failing
Tipler
the search
duPont
quash
injustice.”
fest
contrary and
(6th
Co.,
Cir.
improperly permitted access
443 F.2d
Nemours &
warrant which
Frank, 625
employees of
facilities
also
Shimman
Stauffer’s
See
representatives
of the
acting
1980); United States
(6th
PEDCo
Cir.
F.2d
1977),
LaFatch,
EPA.
nom.,
v. MM
sub
LaFatch
cert. denied
is re-
court
judgment
the district
98 S.Ct.
Corp., 435 U.S.
with in-
the cause is remanded
versed and
(1978); Bronson v. Board
L.Ed.2d
to enter
favor
judgment
structions
1975),
Education,
525 F.2d
Stauffer.
1665, 48
denied,
934, 96
S.Ct.
cert.
U.S.
Court, in
Supreme
(1976).
JONES,
L.Ed.2d
Judge,
Circuit
NATHANIEL R.
States, supra, identified
v. United
Montana
concurring.
both of which
following
questions,
two
Judge
I
Although
concur with
Weick’s
favorably
party
to the
must be resolved
separately
opinion,
well-reasoned
I write
the doc
before
asserting
estoppel
collateral
concerning
applica-
articulate
views
my
(1) “whether control
applied:
trine can
tion of
estoppel
collateral
changed
ling
legal principles
facts
my opinion,
application
case.1 In
judgment
pri-
significantly” since the
doctrine
precludes
Court
address-
suit;
cir
(2)
special
“whether other
ing the
Ac-
presented.
merits of the issue
exception
warrant an
cumstances
cordingly,
my
I limit
concurrence
440 U.S.
preclusion.”
rules
normal
opinion.
II of Judge Weick’s
99 S.Ct.
Application of the
of collateral
doctrine
prevent
seeks to
inquiry
The first
estoppel
of three
involves
consideration
in situa-
application
estoppel
of collateral
doctrine,
factors.
a judgment
Under
underlying
legal principles
where the
tions
prior
rendered
law suit between
altered, thus
judgment
have been
initial
parties precludes
relitigation
those
its
nature.
Com-
weakening
conclusive
See
raised,
issues previously
considered and de
599-602,
Sunnen,
333 U.S. at
missioner
subsequent suit,
termined when a
based
720-721. An examination
S.Ct. at
demand,
a different
claim or
there
present case reveals that
rеcord in the
Sunnen,
brought. Commissioner v.
change
legal princi-
has
no such
in the
been
591, 597-98,
1191 over, to use power private identified a of contractors else- this Court has number found even pow- which have been where in the circuit. But EPA’s other circumstances these in its justify exception application inspections er to use individuals See, Holiday illusory impact rule. Hawkins is since the decisis e.g., v. stare Inns, Inc., (6th 1981) (a today, if it holding 57 Cir. the Court’s becomes F.2d final, range expected is in the be to eliminate proofs required broader action); jurisdiction. in in this prior practice Allegheny action than See second NLRB, Frank, supra, (lesser Hospital v. 608 F.2d Shimman burden General short, 1979). proof required subsequent (3d application in the action Cir. In first); imposed estoppel minimally than in the collateral is related LaFatch, supra (overriding public policy to the harm identified. Tipler against bribery officials); of public Judge application Siler also remarks Co., supra I. v. E. duPont deNemours & estoppel improper of collateral where sev (differences require- in purposes cases, issue, legal same involving eral statutory provisions ments being litigated are in different areas and the prior subsequent which actions However, result in inconsistent I decisions. have been prosecuted). generally See position adhere to the articulated in West Kulick, Westwood Chemical Co. v. 656 F.2d A., ern Oil and Gas v. E. P. (6th 1228-32 not Cir. hаs 1980), the court where conclud asserted, reflect, nor does the record ed, think the “we fact of inconsistent deci circumstances identified relevant, always disposi sions is a but not
preceding
present.
cases are
tive,
factor to be considered
the exercise
However,
that,
concurring
I note
in his
refusing
apply
discretion
the doc
[in
opinion, Judge
ease,
apparent
present
Siler identifies two
In the
this factor
trine].”
of injustice
spring
sources
which would
favor
weighs
applying
doctrine.
Initially,
from the
of the rule.
articulating
invocation
The Ninth Circuit in
this rule
he states
“injustice
would result
if
dictum
appearing
relied on
several Su
precluded
EPA were
entering
preme
cases
apparently ap
Court
Tennessee,
plant
practice
Stauffer’s
but
us- prove
agency relitigation.
ing
in entering competi-
Train,
E.
duPont deNemours & Co. v.
See
I.
plant
135 n.26, 97
n.26,
tors’
the same area.”
I
not
am
U.S.
S.Ct.
persuaded.
my opinion,
injustice,
(1977);
In
if
51 L.Ed.2d
Union Electric Co. v.
246, 254-55,
any,
A.,
suffered
whose
P.
plants
E.
U.S.
S.Ct.
pro- 2523-24,
(1976);
and trade secrets in one area will be
United States Court of Circuit. Sixth ORDER No active judge of this court having re- Argued Feb. 1982. quested that a vote be taken on the sugges- tion of the appellee that petition its Decided July rehearing banc, be heard en petition said Rehearing and Rehearing En Banc Denied for rehearing was therefore referred to the panel 11, 1982. for consideration Nov. and determination. Upon consideration petition rehearing, we are of the view that issues in appeal were adequately dealt with in slip our opinion and that the peti- tion lacks merit. appellee has not dem- onstrated that EPA in conducting pollu- tion and search private com- mercial property of Stauffer Chemical Com- pany needs the services of its own employees as well as the employees of the Tennessee, State of but in addition thereto requires the services of a contractor who is a competitor of Stauffer with con-
flicting interests who may have an axe to grind be interested in obtaining trade secrets of Stauffer. petition for rehearing is denied.