Document reOJkXr0drR2d39xqvkd8rvEE

J0UM C. NCLLZA JCAOMC M HSCKMAN CHAAVM M- HKKHAM W1LUAM H. NMHUMI.A, MALCOkW D- MACAMTHUft wavnc w. aukCii maatin w. iteeviei JOHN *. BIJO*CD CAKOUB C. HMM MICMACL. F. HOWtOMC a. xolomon JOHN . OWIICN eMUTINI A. MBAAHCN IIWMT *. FUJU.9TO HIM nw (V(N CTB* C. HHClklt Uimiiet A IIALFWlM aaaown shun tomhca C. OOU*t> UjUMCTT IBWMO ONDtl vktcii a auascn HKILA A. NIMII NVtllU h. roa LU M. WI1NIR TIMOTHT **OW1H ICCMC NtNOCL HIUtN LAW OFFICES Keller and Heckman UOO 17TM STREET, X. W. SUITS lOOO WASHIKOTON, D. C. 90030 (308) 437-UOO ( -------^ Ttuu*in <CfM>Z-T*C CAVIS AOOI*C"*CLMAM " *nri <xct oiai. (202) 457-1116 January 12, 1984 Dr. Roy T. Gottesman The Society of the Plastics Industry, Inc. 355 Lexington Avenue New York, New York 10017 Res United States v. Stauffer Chemical Co. 4 Dear Roy: For some time we have been following the conflicting litigation concerning whether the Environmental Protection Agency (EPA) may employ private contractors to conduct or assist with plant inspections under the Clean Air Act. In particular, the question is whether such private contrac tors are "authorized representatives" under Section^114(a)(2) of the Act. At present, the United States Courts of Appeals for the Sixth and Tenth Circuits have held that EPA may not use contractors to search plants. The Ninth Circuit has upheld EPA's position. The United States Supreme Court agreed to review the Sixth Circuit* s decision. We had hoped that the case would lead to a definitive resolution of the question. However the Court's decision, issued on January 10, 1984, did no^reach the Clean Air Act question. Thus, the privati^contractor question is still open. United States v. Stauffer Chemical Co., No. 82-1448 (Jan, 10, 1984) (copy enclosed.) The Court's decision was based on the doctrine of mutual defensive collateral estoppel. In this case, EPA attempted to use private contractors to inspect a Stauffer's plant in Wyoming. EPA lost that case in the Tenth Circuit. The Agency then attempted to inspect a Stauffer's plant in Tennessee. While Stauffer lost in MB^-239939 Dr. Roy T. Gottesman January 12, 1984 Page Two Keller and Heckman the Tennessee District Court, the Sixth Circuit held that the Clean Air Act did not authorize EPA to use private contractors. Alternately, the Sixth Circuit held that the government was precluded by the doctrine of mutual defensive collateral estoppel from relitigating the same issue already litigated against the same party in another case involving similar facts. The Supreme Court's decision (9-0) focused solely on the collateral estoppel issue and affirmed the Sixth Circuit on this point. While the decision does not resolve the conflicting circuit courts' decisions on the use of private contractors,, it does provide some relief for companies that may face EPA or other federal administrative agencies such as the Occupational Safety and Health Administration (OSHA) or ^ the Internal Revenue Service (IRS) at different locations throughout the country. In the past, we forwarded letters involving this subject to the Legal. Committee and the Manufacturing Practices Committee. You may wish to consider doing so for this case. If you have any comments or questions, please let me know. Cordially yours, Peter L. de la Cruz Enclosure cc: G.. Hunger (w/o enc.) 2:S?94n