Inspections and information gathering

AuthorJeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
Chapter IX:
“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 EPAs 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.
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.

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