Inspections and information gathering

• Author: Jeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
• Pages: 585-653

585

Chapter IX:

INSPECTIONS AND

INFORMATION GATHERING

A. INTRODUCTION

“Information is k nowledge, and knowledge is power. By authorizing the

agency to mount inspections and to collect information from persons and

entities involved with hazardous residues [§3007(a) of the Resource Conser-

vation and Recovery Act (RCRA)] direct ly facilitates the government’s abil-

ity to battle the polluters and the despoilers.” United States v. Charles George

Trucking Co., 823 F.2d 685, 689, 17 ELR 21152 (1st Cir. 1987).

e ability to gather information is critical at all steps in the regulatory

process. Enforcement is an obvious example—it would be impossible without

eective investigative tools. An enforcement agenc y requires information to

identify violations and to successfully prosecute violators. Other aspects of an

agency’s mandate are equally dependent on its ability to gather in formation.

Establishing sta ndards or policy, informally or through the promulgation of

regulations, requires a vast amount of data about the regulated community

and the issues to be resolved. Drafting permits requires detailed and accurate

information about the permit applicant and the nature and consequences of

the activities proposed for permitting.

Most information received by an agency is submitted voluntarily, some-

times eagerly, by the regulated community and the public. e opportunity

to inform the agency is the opportunity to inuence agency decision making.

For example, when the U.S. Environmental Protection Agency (EPA) pro-

poses euent guidelines, industr y, environmental groups, and others volun-

tarily conduct studies and submit comments and information in an attempt

to inuence the outcome of the rulemaking process. Many of the battles over

agency procedure are a struggle by members of the regu lated community

and interested public for a greater opportunity to be heard, i.e., to provide

information to the agency.

On the other hand, the required submission of data by the regulated pub-

lic may entail serious risks. Some information may establish a prima facie

case of a violation or support a motion for summar y judgment. Some infor-

586 Water Pollution Control, 2d Edition

mation regarding permitted discharges may be a public relations liability in

the hands of the public and the press. e loss of trade secrets to competi-

tors may cause nancial ruin. e Freedom of Information Act (FOIA), 5

U.S.C. § 552 (2012), provides broad public access to many records of the

agency, which is of great concern to those who are required to submit sensi-

tive or condential information. Nevertheless, as a practical matter a regu-

lated entity often c annot aord to st rain its relationship with the agency by

contesting dema nds for information, particularly if refusal to comply with

information requests can lead to denial of a requested permit or the imposi-

tion of penalties.

Information is often provided to obtain a desired benet from an agency.

For example, a discharging facility wishing to obtain a national pollutant dis-

charge elimination system (NPDES) permit will “voluntarily” provide sub-

stantial amounts of requested information because failure to do so will result

in a nding that the application is incomplete and a consequent denial of the

permit. e almost limitless power of the agency to force the submission of

information, by withholding a benet other wise available, explains much of

the “voluntary” cooperation the agency receives.

It is sometimes necessary for the agency to c ompel persons to provide

information. e main methods of information gathering are: (1) requiring

members of t he regulated public to gather data, keep records, and report

information to the agency; (2) issuing subpoenas for the attendance a nd tes-

timony of witnesses and the production of documents; and (3) conducting

on-site inspections.

e Administrative Procedure Act (APA) provides very little direction to

agencies in the exercise of their investigative functions. e APA categorizes

agency decision making into three categories: (1) rulemaking; (2) adjudication;

and (3) investigation. See In re FTC Line of Bus. Rep. Litig., 595 F.2d 685, 695

(D.C. Cir. 1978). It establishes rules of procedure applicable to rule making

and adjudication, but only minimal guidance to investigation. See 5 U.S.C.

§555. It does contain one important information-gathering rule, however. As

a general proposition, agencies have no power to compel the submission of

information, absent a grant of statutory power. e “requirement of a report,

inspection, or other investigative act or demand may not be issued, made, or

enforced except as authorized by law.” Id. §555(c) (emphasis added).

e legal issues that arise with regard to EPA’s information-gathering activ-

ity under the Clean Water Act (CWA) fall into several general categories. Is

Inspections and Information Gathering 587

the activity authorized by the enabling statute? Is the activ ity constrained by

any other statute? Is the activity constrained by the Constitution? Are there

constraints on the agenc y’s use of information it gathers? Are the a gency’s

demands enforceable? Insofar as the government gathers information relat-

ing to violations, its information-gathering authorities amount to one-way

pre-litigation discovery by the government. is raises a general question on

the relationship between information gathering authorized by the enabling

statute and discovery authorized by t he Federal Rules of Civil Procedure. It

also raises t he question of whether the regulated public has access to its own

form of pre-litigation discovery.

Each of the environmental regulatory statutes has an information-gath-

ering section. ey are a ll quite similar, based in large part on § 114 of the

Clean Air Act (CA A), 42 U.S.C. §7414. Moreover, the issues raised under

any of those sections are likely to recur under the other sections. erefore

legal precedent from one statute can often be applied under the other statutes.

B. JURISDICTIONAL LIMITS ON CWA

INFORMATION- GATHERING AUTHORITIES

e basic information-gathering authority in CWA is §308. It empow-

ers EPA to: (1) require “owners or operators of any point source” to gather

and report to EPA such information as it may reasonably require; (2) permit

EPA access to copy records; and (3) permit EPA access to inspect and sample

euents. All three activities a re authorized for the purposes of developing

or assisting in the development of any CWA standard or reg ulation and for

enforcing the provisions of the CWA.

e si milar information-gathering provi sion of RCRA, 42 U.S.C.

§6927, requires EPA to prov ide receipts for samples taken during inspec-

tions, together with a copy of the analyt ical results from the samples

“promptly” af ter they are available. Splits of sample s taken during inspec-

tions are to b e given, upon request, to the owner or operator of the facility.

In United States v. White, 766 F. Supp. 873, 22 EL R 20050 (E.D. Wash.

1991), defendants moved to dismiss a criminal ind ictment under RCR A on

the grounds that EPA did not give defendants receipts, did not promptly

give them the results of its analy tical data, a nd did not give them a split

sample— all as required by RCRA . e court denied the motion because

the government ultimately gave defendants the results and its failure to give

receipts wa s not prejudicial.