Admini strative
Law
-------
An IntrodUction to Federal
Ad m i n i st rat.i ye Law Part
I.
I.
The Exercise of Administrative
Power and Judicial Review
\ 1
( :4..\ r
c 1 j ;.MtJ
by William 1. Andreen
-i—- - —— -.
•• w
I
—-.-
Jo ’ernbcr I 989
-------
(Part one of a two-part series; the second
artIcle will áppéar in the January 1990
Alabama Lawyer.)
This century has witnessed the rise of
an enormous federal bureaucracy. The
impact of this bureaucracy on contem-
porary life and affairs is staggering. From
the provision of social security bene its
to the distribution of highway funds to
.the regulation of air and water pollution,
the, presence of the, fede raI gOs rnment
..isf 1t a virtually every conce1 ’able level
of American society. It would be no ex-
aggeration, therefore, tosay that our na-
tion is an administrative state. Moreover,
the most salient feature of that admini-
strative state lies in the sheer number,
power and diversity of federal admihistra-
tive agencies.
• The administrative state, however, did
not suddenly blossom forth during the
20th century Its roots are much older. As
ea ly as 1 , 9, Congress passed two stat-
utes which placed significant administra-
tive responsibility in the hands of federal
agencies Nevertheless, the administrative
branch of the federal government grew
slowly until the pace of industrialization
began to quicken during the latter half
Qf the 19th century. 2 As the need to con-
trol monopolies, protect public health
and regu!ate trade grew, Congr ss in-
creasingly turned to administrative
bodies to which it could delegate author-
ity to care for the day-to-day details of
governing. Thus, the first modern admin-
istrative agency, the Interstate Commerce
Commission, was created in 1887. Build-
ing upon that model, Congress broaden-
ed its regulatory ov rsight during the
early 20th century to include food and
drugs, shipping, unfair competition and
nascent industries such as radio.
The New Deal led to a tremendous ex-
pañsion of regulatory power at the fed-
eral level. Regulation was extended to the
securities markets, labor relations, truck-
ing and the airlines. The 1960s and
1970s, furthermore, saw another leap in
regulatory activity, this time focusing pri-
marily on environmental protection, con-
sumer safety and social welfare. As a re-
suIt of all of these developments, the role
of federal administrative agencies looms
large today in the articulation and imple-
mentation of public policy in the United
States. ‘
Legal theory, however, was rather slow
in responding to the rise of the admini-
strative state. It was not until the Admin-
• istrative Procedure Act (APA) of 1946
that a uniform set of legal principles was•
• adopted for application to federal agen-
cies. The APA has become the founda-
tion on which the field of federal admin-
istrative law stands. From that ba5ic foun-
dation, Congress and the federal Courts
have continued to struggle with the ques-
tion of how to control the vast and perva-
sive authority placed in the hands of ex-
ecutive branch agencies.
This article is the first in a two-part
series on federal administrative law that
is designed as a primer for the general
practit o eçPart I in this series will focus
upon theexercise f rulemaking and ad-
judicatory power by federal agencies and
the standards used by the federal judici-
.ary in reviewing adminisirative decision-
making. Part II, in turn, will discuss the
threshold problems involved in obtain-
ing judicial review of agency action.
I. The exercise of administrative
p iwer
A. The distinction between rulemak-
ing and adjudication
The conventional way to introduce the
methods by which agencies act is to dis-
tinguish administrative rulemaking from
adjudication. Rulemaking is often de-
William L. Andreen currently serves as
professor of law at the University of Ala-
bama School of Law where he special-
izes in environmental law and adminis-
trative law. He received his under-
graduate degree in 1975 from the College
of Wooster and his law degree in 1977
from the Columbia University School of
Law. Prior to joining the law faculty at the
University of Alabama in 1983, Professor
Andreen was assistant regional, counsel
for the U.S. Environmental Protection
Agency in Atlanta.
scribed as quasi-legislative action since
it resembles the manner in which a leg-
islature enacts a statute. Rulemakings’
aimed at developing policy standai
and norms for future application. Tht
procedures for rulemaking therefore are
designed to solicit general facts and a
broad range of opinion. Administrative
adjudication, on the other hand, is com-
monly termed quasi-judicial due to its af-
finity for judicial process. Adjudications
often in Ive a determinatjon of whether
a party acted in accordance with an exist-
ing legal norm and, therefore, are typical-
ly retrospective in nature and accusatory
in flavor.
1. Under the Constitution
Two early Supreme Court decisions in-
dicate, at least in a general way, when an
agency may use quasi-legislative pro-
cedures or must use quasi-adjudicative
procedures. In Londoner v. Denvei a city
agency ordered the paving of a Street and
assessed the cost to the neighboring
landowners. Since some of tI lots were
irregular in shape, the agency was not
able to consistently apply a simple rule
relating cost to front-footage. The agen
however, relied upon a quasi-legislati
model to apportion the costs and th
gave the landowners notice and an op-
portunity to comment only in writing.
Their request for an oral hearing was
denied. 5 Without much analysis, the
Court held that the refusal to grant an
oral hearing constituted a violation of
due process ’ Rather than relying upon
quasi-leg*Iative procedures, the situation
demanded quasi-adjudicative proce-
The Alabama Lawyer
323
-------
dures that would afford the landowners
an opportunity for oral argument and the
presentation of evidence.
On the other hand, 8,-Metallic Invest-
ment Co. v State Board of Equalization’
involved an order by a state agency that
increased the value of all taxable proper-
ty in Denver by 40 percent. Although the
agency gave the taxpayers no opportunity
to be heard and the order clearly
deprived the taxpayers of property
through increased taxation, the Court
found no constitutional infirmity Justice
Holmes distinguished Londoner by say-
ing that in that instance a relatively small
group of persons was involved, who were
affected in individually unique ways 8
The agency, therefore, was actually en-
gaged in adjudicatory action judging dif-
ferent persons on the basis of divergent
and disputed facts. By contrast, B,-
Metallic concerned a general rule that
applied to all landowners in the same
way Thus, the agency was making a
policy-oriented decision which was more
legislative in character.
2. Under the Administrative Proce-
dure Act
Building upon this constitutional dis-
. iction, administrative action under the
dministrative Procedure Act 9 is charac-
erized as either rulemaking or adjudica-
ion. The object of rulemaking, of course,
s the establishment of standards for
uture application rather than the evalua-
ion of a particular person’s past conduct
r eligibility for a license or permit. Con-
equently, the issues in a rulemaking do
not generally relate to specific eviden-
tiary facts, but focus upon policy-type
conclusions which are drawn from a
wide variety of sources. Adjudication, on
the other hand, usually involves a factual-
ly-oriented determination as to whether
a party’s past conduct was lawful or
whether a party is entitled to a permit or
license
B. Rulemaking under the Administra-
tive Procedure Act
1. Informal rulemaking
Informal rulemaking is the most corn-
on way in which regulations are pro-
lgated at the federal level. Informal
lemaking, also known as notice-and-
comment rulemaking, requires an
agency to publish a notice of proposed
rulemaking in the Federal Register setting
forth, Inter alia, the terms or substance
of the proposal. ’° Following this notice,
the agency must “give interested persons
an opportunity to participate in the rule-
making through submission of written
data, views, or arguments with or without
opportunity for oral presentation:” An
agency is under no obligation to hold
oral hearings with regard to an informal
rulemaking, although, in its discretion,
an agency may decide to do so.
After considering the relevant material
presented by the public, the agency must
publish both the final rule and “a con-
cise general statement” of the rule’s basis
and purpose which is generally referred
to as a preamble. 12 In many instances, the
final rule is then subject to judicial
review
Most preambles, in recent years, have
been much more detailed than the words
“concise general Statement” would sug-
gest. This has occurred because the
federal courts during the 1970s began to
demand a reasoned elaboration of an
agency’s thinking to aid the judiciary in
reviewing complicated rulemakings.’
Furthermore, the preamble also must re-
spond to well-supported, material argu-
ments made by the public during the
comment period.’ Thus, the courts can
determine whether an agency is truly
considering the comments made by the
public.
Informal rules promulgated pursuant to
notice-and-comment procedures are sub-
stantive law, binding on agencies, courts
and private parties. 15 However, an agency
may adopt interpretive rules, procedural
rules and general statements of policy
without satisfying the requirements of
notice-arid-comment rulemaking,” Such
rules, though, do not have the force of
law and are not binding”
2. Formal rulemaking
Under the APA, informal rulemaking
procedures apply to all substantive rules
unless a rule is “required by statute to be
made on the record after opportunity for
an agency hearing. ’l8 An agency, there-
fore, must use formal rulemaking pro-
cedures when its enabling statute so
requires.
Formal rulemaking begins the same
way as informal rulemaking—with public
notice of the proposed rule.’ After
notice, however, the requirement for
public comment is replaced with pro-
cedures which are nearly identical to
those called for in a formal adjudica-
tion. 2 ° Thus, the agency, must hold an
evidentiary hearing where- the parties
have the right to present oral and
documentary evidence and cross-
examine witnesses. 2 ’ Unlike most formal
adjudications, however, the agency may
decide to receive all or part of the evi-
dence in written form as long as a party
would not be prejudiced.22 At the con-
clusion of the hearing, the agency must
base its findings and conclusions solely
upon the evidentiary record produced
during the course of the proceeding 23
Formal rulemaking generally involves
broad, complicated questions of policy
which will affect substantial numbers of
people. Formal trial-type procedures,
however, are better designed to resolve
factual disputes between a few parties
rather than to promulgate rules. Hence,
formal rulemakings typically grind on
very slowly with dozens of parties pre-
senting witnesses and dozens of paThes
conducting cross-examination. The e-
quirement of formal rulemaking, thus,
often will result in a procedural morass
and, eventually, the abandonment or re-
laxation of a regulatory program
Perhaps as a reaction to these difficur-
ties, the presumption in rulemaking cases
favors the use of informal procedures
Formal rulemaking, therefore, is triggered
solely by a statutory provision that (1)
refers to a hearing and (2) recites The
words “on the record” or some equiva
lent that clearly reveal the intent of Con-
gress to require formal procedures.24
C. Adjudication under the Administra-
tive Procedure Act
1. Formal adjudication
The APA requires the use of formal ad-
judication only in cases of an “adjudica-
tion required by statute to be determined
on the record after opportunity for an
agency hearing. ’ 25 Affected persons must
be given notice of the hearing, which in-
cludes (1) the time, place and nature of
the hearing, (2) the legal authority for the
hearing, and (3) the matters of law and
fact asserted. 2 ’ Following notice, the op-
posing parties are given a chance to re-
spond by submitting legal arguments and
statements of fact 27
1 )4
November 1989
-------
Formal adjudications are presided over
by the agency one or more members of
the body that comprises the agency or
an Administrative Law Judge (ALJ).28 In
most cases, ho vever, the presiding officer
is an AU. Although ALJs are agency em-
ployees, they possess a great deal of in-
dependence. Their compensation is fix-
ed, not by the agency, but by the Office
of Personnel Management, independent
of agency recommendations ,29 Further-
more, AUJs can be disciplined oniS ’ for
“good cause” by the Merit Systems Pro-
tection Board. 3 ° AUJs are assigned to
cases in rotation and may not perform
duties which are incompatible with their
judicial responsibilities.31 Finally, ALJs
may not be supervised by an agency of-
ficial who has an investigative or prose-
cutorial role.32
A party to a formal adjudication may
appear in person or through counsel 33
and may present oral or documentary
evidence. A party may also cross-
examine opposing witnesses to the ex-
tent required “for a full and fair dis-
closure of the facts” AUJs are not re-
quired, in nost instances, to adhere to
the same rules of evidence which apply
in federal courts The APA, in fact, directs
an AU to receive “ [ amy oral or documen-
tary evidence” as long as it is not “irrele-
vant, immaterial or unduly repetitious:’ 3 ’
Following.th eytdentjajy heariog,.the
AU generally issues an initial decision,
which co na e ndings and tondu
sions, and the reasons or basis therefor,
on all the material issues offact, law or
The initial decision becomes the final
decision of the agency unless an appeal
is taken to the agency 38 On appeal, the
agency has the power to undertake de
novo review of the AU’S initial decision,
2. Informal adjudication
Informal adjudication (or informal ac-
tion) describes all agency decisions not
encompassed by rulemaking or formal
adjudication, It often includes the pro-
cessing of applications and claims, tests
and inspections, advice, and similar rou-
tine decisions. In fact, the vast bulk of
federal decisionmaking can be termed
informal adjudication. Due to the wide
variety of informal administrative deci-
sions, the APA establishes no procedural
framework for informal adjudication The
procedures governing informal adjudica-
tion, therefore, will be those, if any, estab-
lished by statute or by the agency, re-
quired by the Constitution or imposed by
the judiciary.
D. Agency discretion in choosing a
procedural mode
Many agencies often confront a choice
between adopting a substantive rule
through informal rulemaking or an-
nouncing a general principle of law
through formal adjudication Such a
choice only will arise, of course, when
an agency is vested with the statutory
authority to both promulgate substantive
rules and adjudicate cases dealing with
the same subject matter
While the federal courts have ex-
pressed a strong preference for the rule-
making model when it comes to the
creation of law, they recognize that not
every new principle of law can be cast
in the form of a regulation Many prob-
lems, for example, cannot be anticipated
until presented in the context of a real
The programs ask multiple-choice and
fill-in-the-blank questions, and then com-
pose tailored documents in minutes. The
Wills Library (Cat. 4930) prepares sim-
ple and complex wills providing for sepa-
rate dispositions of personal effects
and realty, cash bequests, annu-
ities, the granting and exercise
of po ’ers of appointment.
credit equivalency trusts
with QTIP provisions, man-
tal deduction trusts, charita-
ble remainder trusts, and
other dispositions. ‘The resid-
uary estate may be divided into
equal or unequal shares with each
share being given to one or more
beneficiaries outright, or in a variety
of trusts Trusts may be terminated
or partially distributed at specific
ages, or may last for the life of the
beneficiary. Alternate and successor
beneficiaries may be specified. The
program also prepares living will
declarations, powers of attorney.
family tree affidavits, asset sum-
maries, execution checklists, and
I
case Or an agency may not have had
enough experience with a problem to
establish a rigid rule prior to the adju
cation of a concrete controversy. Cons
quently, the federal courts have not im-
posed any inflexible requirement that
agencies establish general rules of law
solely through rulemaking.4o In short,
agencies have discretion to announce a
new principle by means of rulemaking
or to announce and apply a new princi-
ple via adjudication. ’
II. Judicial review of administrative
decisions
A. Questions of law and policy
The APA clearly states that a reviewing
court shall decide all relevant questions
of 1aw42 Thus, if an agency’s statutory in-
terpretation is inconsistent with the
language of a statute, as viewed in light
of its legislative history and its purposes,
a court must give effect to the intent of
Congress However, if an agency’s inter-
pretation of a statute it administers does
other ancillary documents.
Libraries for Inter Vivos Trusts
(4931), House Sales (4934), Condo
Sales (4 ,35), Com’l Real Estate
Contracts (4937), Office Lease Riders
(4938), Store Lease Riders (4939),
Net Leases (4940). Limited
Partnerships (4946), Sepa-
ration Agreements (4933),
Business Sales (4947), and
Shareholders Agreements
(4948). are available for
Alabama at $200 each
Updates are free the first
year, $10 per disk thereafter
IBM or compatible computers
Specify 5 1/4” or 3 1/2” disk Call
Bernice, Williams, (800) 221-2972
for information on these and other
programs for Alabama.
XceIS1or.LegaI, Inc.
62 White St
New York, NY 10013
(800) 221-2972
FAX (212) 43 1-5 Ill
The Alabama Wills Library
by Attorneys’ Computer Network
ONLY
$200
30-day
money back
guarantee of
satisfaction
The Alabama Lawyer
325
-------
not contradict the statute’s language or
frustrate its purpose, the role of a review-
ing court is limited. The agency’s con-
struction will be upheld if itis sufficiently
reasonable, even if it is not the most rea-
sonable interpretation in the eyes of the
court 44 The amount of deference shown
to an agency’s interpretation increases in
cases where an agency interpretation
was made contemporaneously with the
statute’s passage, has been consistently
adhered to, or involves questions of
scientific or technical expertise 45
The Supreme Court recently articu-
lated one rationale for this principle of
deference. In cases where a statute is
silent or ambiguous with respect to a par-
ticular issue, the Court believes that Con-
gress has delegated to the administrative
agency, rather than the courts, the task
of filling the gap. Thus, the agency must
make a policy choice, and the federal
courts have a duty to respect the legiti-
mate and reasonable policy choices
made by an agency 4 ’
B. Questions of fact and the exercise
of discretion
1. De novo review
De novo review of agency findings of
fact to determine whether they are “un-
warranted” is authorized by 5 U SC.
§706(2)(F) in t vo limited situations. Such
independent judicial factfinding is called
for (1) when an action is adjudicatory and
the agency’s procedures for factfinding
are inadequate, or (2) when new issues
are raised in a proceeding to enforce
nonadjudicatory action. 4 ’
2. Substantial evidence
Reviewing courts will examine an
agency’s factual findings under the sub-
stantial evidence test whenever the
agency acted pursuant to sections 556
and 557 of the APA. 48 It is, therefore, ap-
plied to the review of formal rulemakings
and formal adju ications
The Supreme Court has defined sub-
stantial evidence as “more than a mere
scintilla. It means such relevant evidence
as a reasonable mind might accept as
adequate to support a conclusion’ ° The
)urt later amplified this definition by
)lding that a reviewing court may deter-
..ine whether evidence is substantial
only after examining “whatever in the
record fairly detracts from its weight” 5 ’
A court, therefore, must consider the
record as a whole, taking into account
not only the evidence which supports
the agency’s finding, but any evidence
that conflicts with it
Consistent with the liberal rules of
evidence in agency proceedings, hearsay
evidence is deemed sufficient to Consti-
tute substantial evidence as long as the
hearsay is of a type relied upon by rea-
sonably prudent persons in Conducting
their own affairs
3. The arbitrary/capricious test
In situations where an agency took ac-
tion through informal rulemaking or in-
formal adjudication, the APA requires a
reviewing court to decide whether the
agency’s factual decision was arbitrary,
capricious, or an abuse of discretion 53
This standard of review is, theoretically
at least, the most deferential form of
review. According to the Supreme Court,
a court must consider whether the deci-
sion was based on a
“consideration of the relevant fac-
tors and whether there has been a
clear error of judgment Al-
though this inquiry into the facts is
to be searching and careful, the ul-
timate standard of review is a nar-
row one The court is not em-,
powered to substitute its judgment
for that of the agency. .. “5’
In applying this standard, the “focal
point for judicial review” is the admini-
strative record that was created at the
agency level. 55 Therefore, the validity of
the agency’s determination rests solely
on the administrative record which is
already in existence 5 ’
C. Hard look review and informal
rulemaking in an era of high
technology
During the 1970s, informal notice-and-
comment rulemaking evolved into a
highly visible and significant force in the
administrative process. A host of new
statutes, many of which involved environ-
mental or consumer protection, were
enacted that predicated their regulatory
schemes upon a plethora of standards to
be established through informal rulemak-
ing procedures Those rulemakings ar&
often quite complicated, scientifically
and technically, and likely involve signif-
icant economic and social impacts Re-
acting to this development, the federal
courts have fashioned a rigorous form of
review that is commonly referred to as
a hard look”
The origins of this hard look review
may be traced to Citizens to Preserve
Overton Park, Inc v. VoIpe, 5 which
called for judicial review under the ar-
bitrary and capricious test that would be
“narrow” and yet “searching” While
elaborating upon the nature of this test,
the DC Circuit has stated that, although
the standard is “highly deferential” to
agency findings, it does not require a
court to “rubberstamp the agency deci-
sion”° Thus, especially in highly tech-
nical cases, a reviewing court must probe
deeply into the administrative record to
discern whether the agency has exer-
cised its discretion in reasonable fashion
This heightened type of scrutiny is not
intended to allow the court to supplant
the agency’s technical expertise, but
merely to alIo the Court to understand
whether the agency has based its deci-
sion upon a consideration of the relevant
facto
In order to perform this task, the courts
have required agencies to articulate the
grounds for an informal rulemaking (in
Are You A Lawyer
Opposed To Abortion?
ALAW - LIFE
NEEDS YOU.
Please Get in Touch and
Join Our Efforts to Protect
the Rights of the Unborn.
***
ALAW-LIFE
Alabama Lawyers for Unboro Cl i1dren Inc.
P. 0. Box 130695
Birmingham. Alabama 35213
B irmingham 870-1821
Decatuz3 351-1911
Mobile: 432-2700
November 1989
-------
FOOTNOTES
1 1 Stat 29 (1789) (providing for the coflectiori of im-
port duties). 1 Stat 95 (1789) (dealing with the provision
01 benefits to veterans of the Revolutionary r)
2 See j Landis, The Administrative Process 6-8 (1938)
3 5 USC §5551-559, 701-706 (1982)
4 21Q US 373 (1908)
5 Id at 385-86.
6. Id
7 239 US 441 (1915)
8 Id at 446.
9 5 USC §5 551-559. 701-706 (1962)
10 5 USC 5 553(b)
11 5 USC § 553(c)
12 1d
13 See,eg.AennecouCc , v EPA, 462 F2d 846
850 (DC Cir 1972)
14 See Portland Cement Ass ’n v Ruckeishaus, 486 F 2d
375, 392-95 (DC Cir 1973), cers denied, 417 US. 921
(1974)
15 See. e g, United States v Nixon, 418 U S 683, 695
(1974). Pacific Gas & Electi,c Co. v FPC 506 F2d 33, 38
(DC Cir 1974)
16 5 U SC § 553(b
17 See, eg, General Molors Corp v Ruckelshaus 724
F2d 979, 985 (D.C. Cur 1983), Pacific Gas & Electric Co.
506 F2d at 38-39
18 5 USC § 553(c)
19 5 USC § 553(b).
20.See5USC § 553(c
21 5 USC § 556.
22 5 USC 5 556(d)
23 5 USC §5 556(e), 557
24 United States v Florida East Coast R.ailway Co.. 410
U S. 224. 241 (1973)
25 5 USC. § 554(a)
26. 5 U S.C. 5 554(b)
27 5 USC. 5 554(c)
2&5US.C §556(be
29 5 U S.C. § 5372 (1982)
30. 5 US.C 5 7521 (1982)
31 5 U.S.C. 5 3105 (1982)
32 5US.C S 554(d)
33 5 U S.C. § 555(b)
34 5U5.C. 5556 (d)
35 1d
36. Id
37 5 USC § 557(b). (ci
38. 5 USC § 557(b)
)9 Id
40 See, eg. SEC v Chenery Corp. 332 US 194 (1947)
41 NLRB v Bell Aerospace Co. 416 US 267 (1974)
42 5 U SC § 706 (1982)
43 Chevron USA. Inc v National Resources DeFense
Council. Inc. 467 US 837. 842-43 (1984), National
Wildlife Fed , v Gorsuch , 693 F 2d 156, 170.7) (DC Ci
1982)
44 National Wildlife Fed’n, 693 F2d at 171
45 Id at 182
46 Chevron. 467 U S at 865-66
47 Citizens to Preserve Overson Park. Inc v 1 .blpe , 401
US 402, 415 (1971)
48. 5 USC § 706(2((E)
49 Citizens to Preserve Overton Park, 401 US at 414
50 Consolidated Edison Ca v NLR8. 305 US 197, 229
51 Universal Camera Corp v NLRB, 340 U.S 474, 488
(1951)
52 See Richardson v Perale , 402 U S. 389 (1971)
53 5 USC § 706(2 1(A)
54 Citizens to Preserve Overton Park, Inc v i.k,lpe, 40
US 402. 416
55 Camp v Pstts, 411 U S. 138. 142 (1973)
56 Id at 143
57 See. eg. National Lime Assn v EPA. 627 F2d 4t ,
429-30 (DC Cur 1980)
58 401 US 402 (1971)
59 Id at 416.
60. Ethyl Corp v EPA, 541 F2d 1, 34 (DC Cur 1975), cert
denied, 426 US 941 (1976)
61 541 F 2d at 35-37
62 See. e g. Kennecort Copper Corp v EPA. 462 F 2d 846,
851-52
63 See Industrial Union Department, AFL-CIO v
l-lodgson, 499 F 2d 467, 477 (DC Cir 1974), Lead In-
dustries Ass’n v EPA. 647 F 2d 1130. 1147 (DC Cur 1980).
cert densed...449 US 1042 (1980)
6.4 See, e g, Portland Cement Ass n v Ruckelshaus, 486
F 2d 375, 392-95
65 See Weyerhaeuser Co. v Costle, 590 F 2d 1011, 1028
(D.C Cur 1978)
66. 463 US 29 (1983)
67 Id at 43
ascribed to a difference in view or
the product of agency expertise :” 7
Thus, the judiciary may be seen not only
as a mechanism which guards against the
unauthorized expansion of regulatory
po ver, but also as a bulwark against the
unjustified dilution or eliminat,on’of reg-
ulatory standards.
Conclusion
The final article ifl this series will
dress the various threshold questions t.
confront parties seeking judicial review
of agency action such as obtaining juris-
diction, statutory preclusion of review,
standing and timing.
the preamble) in far more detail than had
been required before 1970,62 The Courts
basically want an agency to explain the
reasons why it chose one course of
action over another, the facts that choice
is based upon, and the considerations
the agency found persuasive.’ 3 In addi-
tion, the courts have held that agencies
possess an obligation to respond to sig-
niftcant Comments made during the
public comment period.’
Potential challengers to agency infor-
mal rulemaking have a concomitant ob-
ligation in the courts’ view. They must
realize that the success of open and par-
ticipatory procedures depends upon
them as well as upon the agencies. Con-
sequently, the courts have required chal-
lengers to make substanttal and good
faith use of the opportunities to com-
ment Therefore, technical, factual or
policy concerns should be raised during
the comment period. If they are not
raised at that time, reviewing courts will
gtve the complatning party rather limited
Iattt& to r ise those issues during the
course of s,i.ibsequent judicial review.’ 5
The hard look doctrine has also ap-
peared in the context of deregulation. In
Motor Vehicle Manufacturers Ass’n v
State Farm Mutual Automobile InSurance
Co ,66 the Supreme Court held that the
Department of Transportation had not
supplied a sufficiently reasoned analysis
for resctnding a rule which required the
installation of passive restraint systems in
all automobiles. In the decision, the
Court summarized the hard look doc-
trine in the following fashion:
“The scope of review under the ‘ar-
bitrary and capricious’ standard is
narrow and a court is not to sub-
stitute its judgment for that of the
agency. Nevertheless, the agency
must examine the relevant data and
articulate a satisfactory explanation
for its action including a ‘rational
connection between the facts
found and the c hoice made:..
Normally, an agency rule would be
arbitrary and capricious if the
agency has relied on factors which
Congress has not intended it to
consider, entirely failed to consider
an important aspect of (he prob-
lem, offered an explanation for its
decision that runs counter to the
evidence before the agency, or is
so implausible that it could not be
Dr. Michael
AUBURN
Expert Witncss Services
Electric Shock . AutoiuiotjvsjAylatjou/pj,rjne
Elect,o.jcs • M.dIcaJ Doyle. Failure.
Cop.tec Syste a. Microwave Nuarda.
Blo djcaJ Sy saa .Huau..Ma chI .e laterface.
Geaurul Eagi. l*g . H —aa s .d Social Sciesces
S. Morse Dr. Thaddeus A. Roppel
(205) 826-6610
237 Pay.. Street, Auburs, AL, 3U30. Lipert Resses Welcome
Th Alish , m, I ,lwver
327
-------
This is the last article in a two-part
series which is intended to present a
broad overview of federal administrative
la Part 1 in this senes discussed the rule-
making and adjudicatory powers that are
commonly possessed by federal agencies
and the standards used by the federal
judiciary to determine the validity of
rulemaking and adjudicatory action. This
final article will examine the various
threshold questions that confront parties
seeking judicial review of agency action
such as jurisdiction, preclusions of re-
view, sovereign immunity standing, and
timing.
I. Availability of judicial review
A. Jurisdiction
1. Specific grants
Most federal regulatory statutes spe-
ifically provide for judicial review of cer-
tain kinds of administrative acflon. In do-
ing so, Congress has chosen a wide vari-
ety of routes for judicial review. For ex-
ample, orders denying or terminating
social security benefits are reviewable in
federal district courts,’ while cease and
desist orders issued by the Federal Trade
Commission may be challenged only in
an approprjate United States court of ap-
peals?
Congress has in some cases made
things even more complicated. Under
the Clean Air Act, for instance, a nation-
al ambient air quality standard rule pro-
mulgated by the United States Environ-
mental Protection Agency (EPA) must be
challenged in tbe United States Court of
Appeals for the District of Columbia?
However, a challenge to an EPA action
which is locally or regionally applicable,
such as EPA’s approval of a state imple-
mentation plan, may be taken only to the
:ourt of appeals in the appropriate cir-
uit. 4 In either case, the petition for
view must be filed within 60 days after
notice of the final rule or approval ap-
pears in the Federal Register. 5 In addition,
the Clean Air Act authorizes a Suit to be
brought in a United States district court
in a case where the complainant alleges
a failure by EPA to perform any nondis-
cretionary duty under the Act. 6 Therefore;
due to the complexity and variety of jur-
isdictional grants, one should pay close
attention to the jurisdictional provisions
contained in the particular regulatory
statute in question.
2. General grants
Despite the plethora of specific juris-
dictional grants, there are many kinds of
administrative action for which Congress
did not explicitly provide an avenue to
obtain judicial review. In that situation,
an aggrieved person must predicate jur-
isdiction upon a more general grant of
jurisdiction such as 28 U S.C. §
l331—general “federal question” jurisdic-
tion. Section 1331 provides that “ [ tihe dis-
trict courts shall have original jurisdiction
of all civil actions arising under the Con-
stitution, laws, or treaties of the United
States.” Most challenges to federal ad-
ministrative action for which there is no
specific jurisdictional provision will
clearly meet this test. Prior to 1976, how-
ever, section 1331 also required that the
amount in controversy had to exceed
$10,000? Consequently, many challenges
involving relatively small pecuniary
amounts were based upon other general
grants of jurisdiction such as 28 U.S.C.
§ 1361 which provides for mandamus. In
a number of instances, plaintiffs asserted
that sections 701-704 of the APA created
an independent source of jurisdiction for
district courts, and seven circuit courts.
agreed with that interpretation.6
This dilemma was resolved in 1976
when Congress eliminated the $10,000
jurisdictional amount in cases brought
against a federal agency under section
1331 A year later, the Supreme Court,
relying in large measure upon the
amendment to section 1331, held that
sections 701.704 of the APA do not con-
fer subject-matter jurisdiction upon dis-
trict courts.’°
B. Preclusion of review
Despite the assertion of an appropriate
grant of jurisdiction, judicial review,
nevertheless, may not be available Sec-
tion 701 of the APA states that the APA’s
provisions concerning judicial review do
not apply where (1) a statute precludes
judicial review or (2) “agency action is
committed to agency discretion by laW”
These two hurdles to judicial review
run counter to the basic presumption
favoring judicial review which is em-
bodied in the APA. 1 2 After all, the APA
provides that any person “adversely af-
fected or aggrieved by agency action
is entitled to judicial review thereof.”13
Consequently, the Supreme Court has
declared that access to the courts should
be restricted “only upon a showing of
clear and convincing evidence” of con-
gressional intent to that effect.’
Express statutory preclusion of judicial
review is not common, and, even when
such preclusion exists, the courts are like-
ly to give it a narrow interpretation.’ 5 For
instance, the administration of veteran
benefits has long been insulated to some
extent from judicial scrutiny. In Tracy v
Gleason,” the court held that the prohibi-
tion on review of “any question of law
or fact concerning a claim for [ veteran]
benefits” (38 U.S.C. §211(a] (1958]) did not
apply to the termination of benefits.” The
court clearly thought that the termination
of benefits did not in lve a “claim:’ In
response, Congress amended the section
to bar judicial review of “the decisions
of theAdministrator of any question of
law or fact under any law administered
by the Veterans Administration (VA] pro-
viding benefits for veterans 18 The
Supreme Court, however, held that this
prohibition did not preclude an attack on
one such decision because the challenge
went to the constitutionality of the Vet-
erans’ Adjustment Act of 1966 rather than
the VA’s administration of the statute.’°
Judicial review under the APA is also
unavailable where an “action is commit-
ted to agency discretion by law”20 This
exception to reviewability applies only
“in those rare .instances where ‘statutes
are drawn in such broad terms that in a
given case there is no law to apply”2 1
The Supreme Court recently identified
such a rare instance when it held that an
agency’s decision not to undertake ad-
ministrative or civil enforcement against
a violation of the law is a decision gen-
An Introduction to Federal
Administrative Law Part II:
The Availability of Judicial Review
by William L. Andreen
28
-------
erally committed to the unfettered discre-
tion of the agency. Therefore, such a de-
cision is presumptively unreviewable.22
The presumption may be rebutted, how-
ever, where Congress has indicated an in-
tent to limit the agency’s enforcement
discretion and has provided guidelines
for the agency to follow. In such an in-
stance, there would be some “law to ap-
C. Sovereign immunity
Only Congress has the power to deter-
mine whether the United States may be
sued, and, if so, in which courts the suit
may be brought? 4 Where Congress has
not waived the sovereign immunity of the
United States, no officer of the federal
government has the authority to consent
to a suit against the government? 5 Al-
though the defense of sovereign immuni-
ty blocked many challenges to agency
action in the past, it poses much less of
a problem today.
Congress amended the APA in 1972 to
eliminate the defense of sovereign im-
munity in cases brought in fede l court
where the complainant seeks “relief
other than money damages.” 2 ’ Therefore,
an action seeking declaratory and injunc-
tive relief no longer will be hampered by
sovereign immunity. This waiver, of
course, does not apply to a case brought
against the United States in a state court.
In such a situation, the government still
will be cloaked with sovereign immunity,
unless an explicit statutory waiver ap-
plies. Moreo mr, sovereign immunity still
may provide the federal g mment with
an absolute defense to an action seeking
monetary relief?’
D. Standing
Related to the issue of whether a par-
ticular claim is appropriate for judicial
review is the question of whether that
claim may be advanced by a particular
plaintiff or petitioner. This latter question
involves the requirement of standing. The
constitutional sou ce of standing law is
Article Ill, § 2 which restricts federal
judicial power to “cases” and “contrc r-
sies.”
Prior to 1940, the Supreme Court ana-
lyzed standing as if it were an integral
part of the merits of a case. A party thus
could obtain judicial review of agency
action only if that action invaded a legal
right of the party which was created by
statute or common law? 8 This analysis,
of course, confused the threshold issue
of standing with the ultimate merits of a
claim. Moreover, it served to reduce the
ability of the federal judiciary to monitor
the expanded activities of the federal
bureaucracy. This nerable formulation
of the standing doctrine began to crum-
ble, as a result, during the 1940s.
The Supreme Court, during that de-
cade, recognized that Congress could ex-
plidtly grant a fight.ôf judicial review to
any person aggrieved. or adversely af-
fected by a particular agency action, re-
gardless of whether that person could
show a violation of a “legally protected
interest:’ Thus, a party could obtain re-
view merely by demonstrating a personal
injury in a situation where a statutory
provision granted standing to aggrieved
persons or, in other words, to private at-
torney generals? 9
In 1946, the APA was enacted and pro-
vided that a person “adversely affected
or aggriéve i by agency action within the
meaning of a relevant statute” could ob-
tain judicial review 30 The federal courts,
however, generally refused to view sec-
tion 702 as a broad grant of standing. In-
stead, the courts held that section ‘O2
only provided standing where the in
terest in question was recognized by
some other statute. 3 ’ Consequently, the
legal interest test still had some residual
vitahty
In 1970, however, the Supreme Court
re-examined the issue of standing under
the APA and, in the process, drastically
revised existing law. In Association of
Data Processing Service Organizations v.
Camp, 32 the court rejected, once and for
all, the test of a legally recognized in-
terest. In its place, the Court substituted
a new two-part test. The first test is based
William L. Andreen currently serves as
pro fessor of law at the University of Ala-
bama School of Law where he special-
izes in environmental law and adminis-
trative law. He received his under-
graduate degree in 1975 from the College
of Wooster and his law degree in 1977
from the Columbia University School of
Law Prior to joining the law faculty at the
University of Alabama in 1983, Professor
Andreen was assistant regional counsel
for the U.S. Environmental Protection
Agency in Atlanta.
on the constitutional requirement of a
case or contra ersy. Thus, a plaintiff must
allege that the agency’s action caused ti
plaintiff some “injury in fact, econo’
or otherwise:’ 33 Moreover, the disp
must be “presented in an adversary con-
text and in a form historically viewed as
capable of judicial resolution The sec-
ond test requires that “the interest sought
to be protected by the complainant [ must.
be] arguably within the zone of interests
to be protected or regulated by the sta-
tute or constitutional guarantee in ques-
tion ” 35 This is based upon section 702
of the APA as well as more general pru-
dential considerations?’
Data Processing is still good law. Since
1970, however, the Supreme Court has
handed down a number of decisions
which refine the two-part test first enun-
ciated in Data Processing. In Sierra Club
v. Morton, 3 ’ the Court held that the party
seeking review must allege facts show-
ing that he or she is among those ad-
versely affected by the agency’s action.
A litigant thus must assert a direct stake
in the controversy? 8 But such a stake
need not be economic. Environmental or
aesthetic injury, for example, is enouc h
to satisfy the requirement of an injur ’
fact” Furthermore, the alleged inj
need not be significant. Even an “identi-
fiable trifle” is enough to give a party
standing to vindicate an important prin-
ciple bo
It is clear, nevertheless, that the Court
will not extend standing to a party who
has not alleged facts demonstrating some
causal link between the agency’s action
and theparty’s alleged injury ’ If this
causal link is too speculative or serious-
ly attenuated, standing will also be
denied 2 Such denials have been predi-
The Alabama Lawyer
29
-------
\ LAZER
PRINT U.S.A.
Decatur, AL 1-(800) 828-0016
$ Tonef Carrr,dg . Recharge Spec,aI ,$f$
OFFERS YOU
• Remanufactur J Cartridge Division
• Longer, Darker Printing
• International Guarantee
• Free Local Pick-up & Delivery
• Free Return Shipping
• New Toner Cartridge Division
• General Cleaning-Services Division
FOR LESS COST!!
LAZER PRINT U.S.A.
1410 7tn Ave. SE
Decatur, AL 35601
(205) 351-1961
1-800-828-0016
LAW OFFICE
COLLECTIONS
SOFTWARE
I Designed specifically for law firms
For IBM-PC Compatibles
Dozens of Systems in Use
Prints Legal Forms,Thrm Letters
• Complete Tickler System
Single Data Entry
‘Fully S )J)(fl
Affordable
• Demonstration Program Available
for 1nformabon call (804) 288-7850
iS lkhnologies, Inc
5001 West Broad SL
Richmond,VA. 23230
cated upon the Article Ill requirement
that, in order to be justiciable, a case
must be capable of judicial resolution.43
These rules are easily articulated but
rather difficult to apply. In close cases,
therefore, it may be hard to predict
whether a court will find that a party
seeking judicial relief has satisfied the re-
quirements f standing.”
E. Timing
The doctrines of primary jurisdiction,
finaIit’ exhaustion of administrative
remedies, and ripeness are all designed.
to avoid unnecessary or untimely judicial
involvement in the administrative pro-
cess. They do not forbid judicial review,
but merely postpone the time at which
a court may entertain a particular matter.
1. Primary jurisdiction
The doctrine of primary jurisdiction is
a judicially created principle designed to
deal with a situation where both a court
and an agency have the legal authority
to address the same dispute. For exam-
ple, the federal courts have the power to
hear a complaint alleging an illegal re-
straint of trade such as a conspiracy to
fix prices, while the Federal Trade Com-
mission has the power to determine
whether such price fixing constitutes an
unfair trade practice. When both arms of
g mment have the power to act, which
should be regarded as having primary
jurisdiction?
In such a case, the federal courts have
recognized the primary jurisdiction of
the agency, thereby postponing judicial
consideration of the case, if that course
of action will lead to more uniformity in
decisionmakjng.4s The courts also have
deferred to an agency where it possesses
specialized knowledge and expertise that
svuld be of use in resolving the contro-
2. Finality
Section 704 of APA provides that
“ [ ajgency action made reviewable by sta-
tute and final agency action for which
there is no other adequate remedy in a
court are subject to judicial review:’ 47
Consequently, in the absence of express
statutory authority to the contrary a pre-
liminary or intermediate agency ruling is
not reviewable until the agency has taken
final action.”
A statute, however, may specifically
speed up the process For example, the
Freedom of Information Act authorizes
judicial review where an agency fails to
respond to an information request within
a certain time period” On the other
hand, a statute may state that an action
is final for purposes of judicial review on-
ly after a number of steps (hearings, ap-
peals, etc) are taken within the agency.
Finally, a number of agencies have also
used regulations to define the point at
which a particular action becomes final.
In the absence of a statute or regula-
tion which defines finality for purposes
of judicial review, it may not always be
clear when agency action is final In such
a situation, reference to the judicially-
created doctrines of exhaustion and ripe-
ness may help define the time at which
a dispute may be taken to court.
3. Exhaustion of administrative
remedies
No party is entitled to judicial review
until that party has exhausted the pre-
scribeci administrative remedies.5o Thus,
if an administrative proceeding is at an
early stage and the party who seeks judi-
cial review has a right to an agency hear-
ing or appeal, a court generally will re-
fuse to entertain the case because that
party has failed to await the completion
of the administrative process.
A number of factors favor the applica-
tion of the exhaustion doctrine: (1) it re-
spects the choice made by Congress to
delegate initial decisionmaking authonty
to an agency; (2) it allows an agency to
bring us expertise to bear on a particular
issue; (3) it prevents judicial review from
proceeding on the basis of an inadequate
administrative record; and (4) it avoids
the necessity for judicial involvement in
cases where the agency is able to resolve
the problems Hc vever, a court might in-
tervene in a pending agency proceeding
—an “extraordinary remedy’ .-where it Is
“necessary to vindicate an unambiguous
statutory or Constitutional right:’”
4. Ripeness
The doctrine of ripeness concerns the
ability of a court to resolve a particular
dispute withoutfurther refinement of the
issues by an administrative agency.
[ lJts basic rationale is to prevent the
Courts, through avoidance of prema-
ture adjudication, from entangling
themselves in abstract disagreements
over administrative policies, and also
30
-------
1 42 USC § 405(g) (1982)
2 15 U.S.C § 45(c) (1982)
3 42 USC § 7607(b)(1) (1982)
4ld -
SId
6. 46 U S.C S 7604 (1982) The sect Jon it known as the
Citizen suit provision
7 See Pub. L 94-574, 90 Stat 2721 (1976)
& See Cal,Iàno v Sai....,r , 430 U.S 99, 104 n4 (1977).
9. Pub. L 94-574, 90 StaL 2721 (1976) (amending 28
U.S.C. 51331)
10. Cahfan4 430 US 99, 107 (1977)
11 5 U.S.C. § 701(a) (1982)
12 See Abbott Laboratories v Gardner, 387 US 136,
140.41 (1967)
13 5 U.S.C. § 702 (1982)
14 Abbott Laboratories. 387 U.S. at 141
15 The federal courts generally refuse to imply a preclu-
sion of udicial review on the basis of statutory
materials. See, Dunlop v Bachowski, 421 U.S. 560,568
(1975) (finding that the Secretary of Labor Thas failed
so make a showing of ‘clear and convincing evidence’
that Congress meant to prohibit all judicial review of
decision”); but see Block v Community Nutntion In-
stitute, 467 U.S. 340, 345-48(1984) (implying preclu-
sion from the language of the statute, the structure of
the statutory scheme the objectives of the legislation
and the legislative history)
16. 379 F2d 469 (DC Cit 1967)
17 Id at 4 3
18. 84 Stat. 790 (1970)
19 Johnson ‘v R.ob,son. 415 U.S. 361. 373-74 (1974)
20. S U.S.C. 5 701laX2)
21. Citizens to Preserve Overton Park v lpe, 401 U.S.
402. 410 (l97lRquoting S. Re No. 752. 79th Cong.,
st Sess 26 (1945))
22. Heckle, v Chaneg 470 U.S. 821. 837 (1985)
23 See Id at 838
24. Minnesota v United States, 305 U.S. 382, 385 (1939)
25. Id at 389
26. 5 U.S.C. 5 702
27 Monetary relief from the lederal government may be
sought in appropriate actions brought in compliance
with the terms of the Federal Toil Claims Act, 28 USC
5 1346(b), and related, but scattered sections (1982).
and the Tucker Act, 28 U.S.C. §5 1346 1491 (1982)
28. See. eg.. Alabama Pm ’.er Ca v Ickes 302 U.S 464
(1938).
29 See, FCC v Sanders Radio Station, 309 U.S. 470(1940)
(applying language found in the Communication; Act
of 1934). Sc’ipps -Iloward Radio v FCC, 316 U.S. 4
(1942) (same)
30. 5 U.S.C. 5 702
31 .See,eg..PZansjsCitypowe,gL,ghtCa v McKay 225
F2d 924 (DC. Cit 1955). cesl. denied, 350 U.S. 88.4
32 397 US 150 (1970)
33 Id at 152
34 Id at 151.52 (quoting from Flast v Cohen 392 U S 83,
101 (1968))
35 Id as 153
36. See id at 153-54, see generally Barlow v Collins, 397
US. 159(1970)
37 405 U.S 727 (1972)
38. Id at 740.
39 United States v Students Challenging Regulatory Agen-
cy Procedures (SCRAP), 412 U S 669, 686 (1973)
40. See id at 689 n 14 (quoting Davis, Standing. Taxpayi’r
and Others, 36 U Chi I Rev 601. 603 (19681)
41 Warth v Seld,n, 422 US 490 (1975)
42 Simon v Eastern Kentucky Welfare Rights Orga:.,
non, 426 US 26, 44 (1976)
43 Id at 38
44 For more recent treatments of standing Issues by the
Supreme Court, see Clarke v Securities Industry Ass’n,
479 U S. 388 (1987), Japan Whaling A.ss’n v American
Cetacean Society, 478 U.S 221 (1986), ‘ lley Forge
Christian College v Americans United for Separation
of Church and State, Inc. 454 U.S. 464 (1982), Duke
POwer Co. v Carolina Environmental Study Crou
Inc., 438 U.S. 59 (1978). Village of Arlington Heights
v Metropolitan Housing Development Corn, 429 U.S
252 (1977)
45 lèxas&?ac,ficR. Ca v AbileneCoflonO,lCol 204
U.S. 426, 448 (1907)
46 See, United States v W€ste,n Pacific R Co. 352 US
59, 64.65 (1956).
47 5 U.SC. 5 704 (1982)
48. See id
49 5 U.S.C. 5 552(a)(6)(C)
50. Myers v Bethlehem Shipbuilding Corp. 303 U.S 41,
50-51 (1938)
•S1 See McKag v United States, 395 U.S. 185 (1969)
52 Coca-Cola Co. v United States, 475 F 2d 299, 304 (5th
Or 1973) (emphasis added), cen. denied, 414 U.S 877,
see also Leedom v Kyne. 358 U.S 184 (1958) (irsvolv.
ing an NLRB decision that was made in escess of its
authority and contrary to a specific statutory
prohibition)
53 Abbott Laboratories v Gardner, 387 U.S. 136, 148-49
(1967)
54 387 U S. 1i6 (1967)
S5 Id at 137.38.
56. Id at 149
57 1d
58 Id at 152-53 -
59 See, eg.. 33 U.SC.A 51369(b) (West 1986 & SL’-
1989) (Clean Vv ter Act) (bamng a challenge to
tam regulations in as ’ subsequent enforcement ac
if review could have been obtained within 120 L,
after the rule was promulgated)
Conclusion
The administrative state is neIther a
monster nor a misfortune. It is rather a
struCture built over the course of two cen-
turies which is designed to further the
collective goals of the American people.
The rise of the administrative state, never-
theless, has posed a challenge to the
ability of the American legal system to
establish a proper equilibrium among
our three branches of g rnment. The
challenge involves the question of how
federal power will be allocated and
quires our legal system to come to grips
with the real tension which exists be-
tween the necessary role of administra-
tive discretion and the need for some de-
gree of accountability. The struggle to
balance the conflicting, but complemen-
tar roles of specialized expertise and ex-
ternal control is the dynamic that has
shaped and continues to shape the Con-
tours of federal administrative law. •
FOOTNOTES
to protect the agencies from judicial
interference until an administrative
decision has been formalized and its
effects felt in a concrete way by the
challenging parties. 5 3
Abbott LaboratorIes v. Cardner in-
volved an attempt to obtain judicial re-
view of a Food and Drug Administration
(FDA) rulemaking before it was enforced
against any party The final rule required
pharmaceutical companies to include a
drug’s generic name on all labels and in
all advertising whenever the drug’s pro-
pnetary name was used.” Abbott claimed
that the FDA had exceeded its sta-
tutory authority in promulgating the rule.
The FDA, on the other hand, argued that
the case was not appropriate for judicial
review since the rule had not yet been
applied in the context of an actual en-
forcement action.
On the question of ripeness, the Su-
preme Court established a two-part test.
First, a court must examine whether the
issues presented are fit for judicial review
Second, a court must consider whether
the parties seeking review will suffer sub-
stantial hardship if review is withheld. ’
In applying the first part of the test, the
Court held that the sole issue presented
was appropriate for judicial review. This
case posed the purely legal question of
whether the FDA had the authority to re-
quire a generic name to appear every
time a proprietory name was employed.
Moreover, since the rulemaking was
final, no further administrative action was
necessary in order to refine the case for
judicial review 57 The Court also held that
Abbott would suffer substantial hardship
if judicial review were refused. Abbott
either would have to comply with the
regulation at some considerable cost,, or
refuse to comply and thereby risk prose-
cution ” Therefore, absent some statu-
tory bar, Abbott was entitled to judicial
review because the case was indeed ripe.
Allowing for p)’e-enforcement chal-
lenges to agency rulemakings makes a
great deal of sense. If the government pre-
vails, industry must comply. On the other
hand, should the government lose, the
agency can quickly change course and
revise the rule as necessary Recognizing
the pragmatic nature of this reasoning,
Congress now often restricts judicial re-
view of rulemakings to the pre-enforce-
ment period. 59
The Alabama Lawyer
31
-------
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,
Plaintiff,
v. CIVIL ACTION FILE
O1N D. FARMER, NO. 87—0038
Defendant.
FIRST DISCOVERY QUEST OF PLAINTLFF UNITED STATES
Pursuant to provisions of Rules 33, 34, and 36 of
the Federal Rules of Civil Procedure, Plaintiff United
States hereby serves its first interrogatories, document
requests, and requests for admission on the Defendant
Farmer .
(Here add further instructions for responding, including
definitions of terms of art used in the discovery req est
1. With respect to Defendant’s assertion in
Paragraph 5 of his Answer that NOefendant has been farming
his land, Wetacre, for many years”:
(a) ADMIT, pursuant to Fed. R. Civ. P. 36, that no
farming, silviculture, or ranching operation was
established or ongoing on Wetacre at any time prior to
Defendant’s discharges thereon in May 1987.
(b) To the extent that your response to the above
request for admission is anything other an an
unqualified admission, state as en INTERROGATORY
response, pursuant to Fed. R. Civ. P. 33:
(I) what contrary facts which you contend
Justify anything other than an unqualified
admission;
-------
(ii) the approximate date(s) on which each
such contrary fact occurred;
(iii) the name, address, and telephone number
of each person having any knowledge of any such
contrary fact(s); and
(iv) the identify of any document containing
information supporting, refuting, or in any way
relating to the existence of such contrary fact by
the document’s author(s), addressee(s), date, and
subject.
(c) If you have identified any document(s) in
response to above interrogatory, PRODUCE each document
so identified pursuant to Fed. R. Civ. P. 34.
2. With respect to the discharge of fill material
alleged in Paragraph 8 of the Complaint:
(a) ADMIT, pursuant to Fed. R. Civ. P. 36. that
Defendant caused this discharge of fill material to
OCCUr;
(b) To the extent that your response to the above
request for admission is anything other than an
unqualified admission, state as an INTERROGATORy
response, pursuant to Fed. R. Civ. P. 33:
(i) what contrary facts which you contend
justify anything other than an unqualified
admission;
(ii) the approximate date(s) on which each
such contrary fact occurred;
(iii) the name, address, and telephone number
of each person having any knowledge of any such
contrary fact(s); and
(iv) the identity of any document containing
information supporting, refuting, or in any way
relating to the existence of such contrary fact by
the document’s author(s), addressee(s), date, and
subject.
(c) If you have identified any document(s) in
response to above interrogatory, PRODUCE, pursuant to
Fed. R. Civ. p. 3 , each document so identified.
2
-------
4thuo!, & ‘
J Pa*nc Hazel
Ppoi The Unswi sy of Tcaas Scbool of Law
P Scoss laidwia
Josos, josos I Isidwi., Man&w8, Tcaa,
—-
Dean, The Uaäw.1., North Cacolusa Sd 00 l of Law
Ju tJa.s4 Isor. of Appeals 6w the FiIh Qituai
Ja L HaM
I HIM, flsI Tea. and A si , Tezas
WM 1I . C. H___
H . , & t .r& _ 4 P.C., DC.
8. -w .
,In J, Uals Ms.s. 6w she iu .1 M .wi.
Hasty Bt___
Vhes. & IIa .. ,
Deej W. ftotsmi..,. .
* AIea..èü, LA
iths P . Ssinau.j ,__
, The U .....j , 1 , of Tea .. $c of Law
b 4.g Yann
w u a sasd1y , W m io DC.
- VL’...a.. çasefiiMy aowl.d the 6nanaal appori
1wu 4J.J by the L of Cobe a Cok DaM. . , Tea..
1’ r — (IRIS O 3S IS). w t U.iiuiU , of Tea.. $cbool of
Law, 727 t 3k6 It, *a , T..a. (2 52) 47I.SIS , s as u a
. .— Lg _ g,. __ an SS2.R —, $200 i . cw eas
0100 an — - -a, r j
..uor of _____
‘ u.-* • l VT Lan p”
Depositions: Objectivs , Strategj , Tactics,
Mechanics and Prob1ems
Dennis H. Supkef
I. Int, uc j 0 257
II. Prdunu ,y Connder 238
III. Scheduling maid Preparing for the Deposition 262
IV. Object,
4 t .4 ,.,. ,,, 266
_____ 270
V. 271
8 rmseiv an Tacsk 272
4. a W. , Cmaã A er*an, —
________ 274
a l ’b
276
C 277
278
£ jv k C.r,,. - k 4is ’-/, G— ’i .... 279
F , 280
(2 #Waia N&n,, £6, W& ig? 280
I L £aihe, Knd.(gv L r Wt ig 281
VIL Methaaij and Prob$cnn (arid More Tactic ,) 281
44. N .&üg
a Th ,Clsa 283
C 283
D “Th , V I . *y.a.,. _ , . 284
283
2 C v
—. ?UIIin3b,Ds..hB 5, . —
SI i9 4 Ji. ( Ja1.... . , ILl II I? , of Lj Law
Iu,lor ha panaw IIwii .. IspI & L.w. , P i.A y He.
I M. Rani. BA. II , Nau.r 5.J - Jg tJ . .as,
p. — aiI 3.p He an — —- . of
. r. ..,i. ._ .,
-------
236 mi II VIE W OF L177G4 T7ON
I Vol 2255
I Fthq 285
0 Raw,ss ( wan., Een msb Faw • 286
£ 7 kt.n 1 . v’—-iy htass , b
287
P 7b AInd t. Y ’. UVUII M, 7 nnp WaIiLâ
288
C lhi, _ —‘ a--- — ale Maw, and hi,
___ 289
H Ranrang kst— -v as air d -‘.y
290
L 1 sad. A j --d T’mr 4 .. , 7 ... 291
/ 7 M Ma £aase-. 11— ’ b
Lamb
TbN Nb$ ,7 ,,
a
296
H Iss,. lOb! 9 , Ti.Adisi 297
N
° ( ( ai. Raw ’ 299
Thno ani a ,
Q fl P- a...t as 4h_ ,
I
£ C waou
7:
U LY SI!
I. 312
z 312
I 313
b 313
W 314
I 314
r iWairT —, 318
£ 319
VIII. Pqiaring she Wisnon on Tenifr 320
D C. ( wSusjon
I 2J PRETRIAL DlXOY y iVoij
I. In(roduc
257
Depositions are the most importatu of the pretnal discovery tools.
In evaluating the strength ofa case for sets kman purposes htigator,
accord great weigh, to the perfonn.. during depositions of both
thcir own and their oppone ’ witncsse . Further (a case should go
so trial, the deposition transcripts will usually be the lawyer’s mon
unponan, reso r (or crcss-czami
Of all the pretrial discovery tooh depositions require the pemon
(echn.caJ skill. The interrogator mon plan and craft his questions
care Ily — -yes be prepared so take a cenipletdy dilfeemt tack de-
pending upon the answers giien, the personality of the witncst, and
the scope of the witness’ know1edge The opposing lawyer muss pee-
pare the witnon carefully (assuming that she witnon is his diem or is
cooperating with him) since he has hide control once the deposition
starts.
The lawyer who .on the notice of dcposit1on typically will be
the principal Interrogator and, aside from the witness, the principal
actor. Accordingly, this Article speaks generally, though not esdu-
sivdy, from the perspedive of that interrogator. For she most part,
she wisnen is assumed to be the adverse party or osbenvise hostile to
she intervoW(Jr The penultimate section of this Article novem op-
posing counsel’s task of preparing she witnon the deposition
This Article d scusou vuriou objectives, strategies, tactics,
mechanics, and problems in iski g depositions. By and large, there
ate no “right” answers to the questions raimd, but the lawyer who
couinden such matters in advance of the deposition should do a bet-
ter job o(intermgatj, the witness.
To make this Article useful to recent law school graduates, as well
as to more experienced litigators, bask prnpuution. are articulated
rather than taken (or panted. Generally, it is onumed that the Fed-
eral Rules of Qvil Procedwe appjy.
Organization of this subject ps its a major problem. Each idea
tends to be entangled with seve,.l others. Separating them out for
individual treatment may be tedious and artificial; leaving them
jumbled may be confusing. This Article attempts to reconcile the
om8ia by examining each topic individually bin showing how it
connects (or is at odds) with others.
-------
1 7WE REYFEw OF IJilGA nON
IVol 2253
a Preliminary saderaison ,
The moss important preliminary quenson is whether to take the
deposition The attorney mun carefully consider several sagnilcant
disodvantag
I. Deposition. are expensive. I nhiiider the tame spent preparing
for the deposition, ‘ a&in , iq rtl. g on it to the client, and summa-
rizing the transcript, em to imuWi she cost of serving a subpoena, a
witn lee, the repon&I dim, ond p —I4e travel expenses
2. The iatermpzo. may pres o t imony harmful to his di-
eat which otherw e would be is i il.1i1, at trial.’ Mverse wit-
ni , may die. Harmful ipany wl’.’.’— may move away or just
ppear their in uitwi may lede ond their litams wane. While it
I widentondable that a law may to know pse el 1 what
tmu i , he must prepare to meet at trial, is is not niapomable to
ais.aamine a witn wi’hnu , a d.po.,in transcript (as criminal
lawyors demonstrate ewsy day of the week). As the very least, it may
be wise to “ mi postponing the aS.po. uon ala witnon aiuiplicted to
11w harmful
3. By ‘ i’%ing a d p _ .iion, counsel may waive an objection so
she rnp.’ ns,e of a wis. . Por example, a party may waive the
Man’s Act’ by dqsming a wisarm who would otha-w be pro-
d”sled by the from eifyiet’
4. The imerroptor *bui inevitably re _ls to some extent
through his qumuos . what he believes to be important to his diem’s
daim or *nse and what he plans to prow as trial. For mua ’ pSr , if
l%2J PRETR/4L D/SCOYERY 7VOij
239
the defendant’s counsel prones the plaintiff (or an unamb,gu
statement that he was never previously ‘nwlvod an an accidem caus-
ing personal injuries, the plamtilTs counsel may accuratdy sense that
the interrogator has evidence of a prior accident U the plaintiff’s
counsel later learns from has dient that has Instincts were nght, he
may then instruct his dient to correct the deposition transaipr’ and
thus effectively dilute the impact at trial of the originaJ erroneous
testimony.
5. The interrogator forces his opponent to learn the cme. His
opponent wall asomilate a good deal just by preparing his witnea
and listening to the questioning
6 The deposition also provides the wunon with a dmo ie
heanaJ. The witnem will do betttr next tame—at trial—beca , he
knows what to expect. A witnea who is rattled, evasive, and unre-
sponsive as hi &position may peth., quite wdl as trial. His dis-
comfort at the deposition will rarely appear (rota the dry transcript
The jury will see only the interrogator’s chagrin.
7. The interrogator may alert his opponent so the existence and
importance of a witness. Pot example, in an antitrust case, if counsel
decides to take she deposition o(a relatively low-level employee from
the opposing side on the outside chance that he may know something
useful, the antatugater may laid that the witairo knows much more
about the nitty-gritty of competition between the parties than the
interrogator wanted to bear. But for the deposition, opposing coun-
sel might ne have considered that person as a pa—able trial
witnem
8 The lawyer serving the notice must recognize that his oppo-
nent is likely to respond in kind. l(a notice I en for the deposi-
tion of the opposing party’s secretary, a counterpart notice is likely to
be served the next day by the other side.
Having considered these disadva.itoges, the lawyer should ex-
amine the alternasiwe to dapositions. A nsi . ., , . to interrugatories and
production of documents may suffice. A telephone interview may
produce remarkably good raids,.’ Although a witnai is likely to be
dattish about a telephone interview wish an attorney, he may laid
that prespccs 1w odaoin than appearing in person for a deposition
. . ri . a a p se 5.)
. NI - - ,sc on p-to. (it7g bsn 1
mu
£ r a. — p asw tm ft. £v IOs*l(l)
I . j— U J. W s A Ths*pus on r A sis * ii .. .j. $yvy.aj or
— Tiu&_a at 5* ,, , I5
I & Wsw TUai on tin L.on or 43 s (INs. - •
A.Lft td (iI . mu. mu . on — ii, d M . An
__ _____- ri . a. gi , . on n in, mu w
wUin . n,. — i, , • mu U J Mao., a j
isicis “ ss V. Pa iua I * IO si (*. . liSt) rr ind • _ • —.
. a. — - . Uin if -a. Y mm.”) S C. WUOMT &
‘ o.is.. ? a Ps.scom is P.------ u$ zsu (lam a - . •i s.
a. . a ps il.J iny , . _ . , .i _ .. _ ..
- - pm - • .. pk _ . LI• LL...... 7 I a .d by .
M An. I • - .p...LL... .
- —- - S — a — — a a.) l d if
kiI. yb,w.Md., ,.$
I . in. d an .I.. ) in — si A.
-------
260 THE EYIEW OF LIT/GA TION
IVol 2255
At the least, the lawyer will get a good reading on whether the wit-
ness is friendly so hi dient’s case. A face-so-face interview is another
alternative. The lawyer may want to follow up either a telephone or
a p . al interview by sending the witness a memorandum summa-
ruing what he said, perhaps wish a request that the wilnem advise
the attorney of any in ar.des or that the witness sign and return
the memorandum .
Another important prdiaiaaiy ‘ d—iuticn is where to lit dep-
miirnn into she overall plan.’ Many lawyers prefer to ini-
tiate pn ,mon only aher the a’ppo .um awwe . enmpsdiensrie
interrogatories and produces many documents. By proceeduug in this
way, the insaroptor will be better prepaud—but so will die wit.
non. The law a for the witness will use she interroptorics as a
ch 1 of subject . tihdy to be ontered at the alipu.ition.’ Addition-
ally, the witnon will seccive the pportuniy to review the answers to
intaingasoriss and the documents made av i I4e to she other side,
thus refreshing his um He tin . of the underlying facts. Morun.er, the
time for .cuting dquosisiosis will probably be delayed while the infor-
mation .asy to answ intarogato,jm is collected and the docu.
menu are .nhi.& This delay may work to the advantage of the
witness who has more thee to onon p Ue weak points in his tail.
The insaroptor . ‘tdd thus oneida mote limited discovery as a
prelude to Øp- sions , such at obtaining only asuw . . to a limited set
of intateptoriss and certain key doc’ iaits , or obtaining only
The law)er may ahe comider scheduling a deposition immedz.
asdy’ without waiting for .a. . to inserrogatories and docu-
its. ’ The interrogator should lint ascertain what be is likely to
learn from answers to isiterroptories and documents that may be
useful i. the If he is likely so horn wry little, the interro .
1982J FRETRUL DISCOVERY 7VOLS
26 5
gator may decide to start discovery with the depos i t . o , , Consider,
for ezampk, a case in which the claim is that the seller made oral
miueprramtat n, about hi. product The buyer’, attorney may
conclude that since the seller is not likdy to make admi ,seo , when
gwen ample tame to ponder the questions, interrogatories will elicit
little helpful information and may provide the opposition wish a list
of topic, likely to be covered at the deposition. The buyer’, attorney
may also decide that the seller has probably not generat docu-
ments tending to show the misrepom ations, thus, a document re-
quest i probably will not produce much In this situation, it may be
best tu get the seller into the witness chair at the earliest possible
lime, rasher than wait for the completion of Ion promising discovery.
Some cater may call for alternating forms of discovery For en-
ample, ins complicated case in which the deposition is likely to take
several days, it may be worthwhile so schedule only one day for the
deposition and then moms until other discovery has been completed.
In some cases, the inserrOgai may schedule a deposition early in the
discovery psoc to learn about the opposing party’s document, and
thus prepare a reasonably specilic document Inquest.
Another preliminary decision is the order in which to depose wit.
on# . In moat instances, the lawyer will lint depose the more im-
portant witnones and then move to those of mrondajy importance. °
In cases with complicated facts, bot. e. , it may be best to start with
a Ion important witness who p - — a good, basic knowledge of the
operative facts. For example, in an antitruist case, the plauitiars
counsel may decide to educate himself about the “idussry and the
defendant’s method of doing businon by deposing a middle-level em-
ployee of the defendant. The deposition of the president of the cor-
porate defendant, perhaps the single moss important discovery event
in the case, may be taken much laser. If the corporate president is
depou.ed too early and elsims to be uninformed e reps in the moss
general way on certain subjects, the interrogator’, knowledge of the
fact, may be too primitive so allow him to pre. the deponent effec-
lively. If, after other discovery, the plainsill’, attorney wants to re-
name the Lposition of the ompo .te president, defense counsel may
tO Liis ii i u u-a— ’ p — wtsa
1 V i . ws.s h - s y h ps s.stI Tui ih.
—, isSU.d p..Jp d i . p.ny p.. e n.s
d i k. This,. am Puacixa aj.. is a Nun..,.,. iii
(i9,
5 . P LOv P II , h.,. _ ..j4.— -
is £. .. ,,a POD. IE. SO7 (l 5 g u ,a _ .d I M v . . , 7
sus.i A mu . This,. cuLONSCY 1212 M in -- _ - i i
d ‘ si , . d dis.h, iis.,i.... _ u
T — ati L... . is N1i,.l.... . te isri&J • shs m this,,.
. _Iis a’ .— —
5 i sS m l ip - _. by isle lot.)
S Pm ft. Ov. P 350.1035 M N.., S i s
s — — hs — with — ml ., h.s wish.
- .
-------
THE REVIEW OF UTIC4 TION
(Vol 2 2S5
1982J
seek a protective order to prevem renpening she deposition” Coun-
sd for the plauisiff may have a difFicult time persuading she court
that he should have a semsid stab at the president
The diem should be consulted about many of these preliminary
cosuiderat ions. He should psnicspate in deciding whether deposi-
tiosta should be taken, what other disuwesy should be conducted first
and in which order the Iql.n —i t. should be listed. The cheat often
will know who on the fl pJ side should be knowledgeable about
a gi subject well — the pstat..al characteristics of the depo-
w Mnroo, , , the client d mdd bow and approve the antsci-
posed cost of the p. - ,.i..d ‘potMion program. A client who
understande what the lawyer io doing and why is most likely to be
‘pe ally if he h had a participate in the under.
lying strategic lo L,id . the heerregasor may 4ri ” to have
ha client psessois at she most ünportant d odtions. The diem may
supply gnod follow-up sowsn.st will know bettcr what to Papsoi at
hi own 1 ’p don , and will better understand the strengths and
iu of hi dais or aii4,. so IsoIy if the bueriugator will
be dcp isg the ‘p —ng pony’s ez t , he should “ u 1 t his own
apost in advance of the 1 e 1 j.n—11on He may de’ 4 de to have ha own
capon puess at the ibu,p tj of the nppo.ui g ei so supess
lines of ku .jry —d on she as . given.
!fl. Sths&iliag and PPepsring the D.p- -.Jison
The law . rli.4n.I,, 5 ‘Iep”stson by serving a notice swing his
intention to drpo.e a em*aia witnsts.” The notice mi include the
name and adde of the “ p soit , if known, and the date, time, and
place of the A pouiIion s If the d p sott is a pony, she service of the
notice is u RL -ient so require hi appearance as the d .pot tion, and a
aib ioua I aiiuiri,.asy.” The n ir may be amompanied by a
request that dociamesus and tngible iscaw be produced as the depo-
ii . FIaLQv P. IIts$i).
3. r a. civ P I Ni)
ii a st L siito I. owy ito ow .1 owow w so sun P
I Ow. P 1 5 ( 5).
it . F.a I. civ. P 3’so; i5 M p 5to, sos. Is. 542 No
- I _ Li is so . à.,.j.. . s. (s nof
p is — • _ — wtsI owU I ousad s. ito
r d to. - - ,. ---- f sds
,,, — j. — . a j. L io.st S. I 3O.3t(I .
PRETRiAL DISC(fl’ERr 7VO
263
suion, in which event the procedure of Ruk 34 applies” If the de-
ponent Is not a party, he should be served with a subpoena “Indeed,
if he fast, to appear because not subpoenaed, the court may Impose
costs of other counsel upon the party giving notice of she dcposi.
non” If a subpoena ducts tecum is to be served on the deponent,
the notice should include, or have attached to it, a dengnatio, of the
materials to be produced.’•
Other counsel may request that the deposition be taken at a loca-
tion other than that designated in the notice” For ezample, counsel
a corporate defeqdant will often sutYceufully argue that the depo-
sitions of his diem’s employees should be taken as the corporate
headquarter ,, particularly when the headquarter, are not located
within the jurisdiction where the case is pending. But defense coun-
sel should use caution in suggesting that the deposition be held at the
defendant’s headquarters since opposing counsel may benefit from
overhearing convena1 in halls or on elevator, or hum seeing pho-
tographs, slogans, or graphs on the wall. Additionally, the deponent
may confirm that the company bar certain documents, and the inter-
rogator may request that they be produced immediately at the depo-
sition. Although the deponent not technically obliged to produce
such documents, a refusal to do su (ii the recoith are readily avail-
able) may appear arbitratp so the court, and the court may allow the
interrogator to reopen the depositson after the documents are pro-
duced. To asesd such dangesa, counsel (sic the corporate defendant
may choose the intermediate course of requesting that the deposition
be held near, but not as, corporate headquarters.
Alternatively, other counsel may accept the designation of place
by the party serving the notice but argue that the serving party
should pay the witnen’ or counsel’s travel espenses in connection
with the depnsation. A party serving notice for she deposition of a
wittiest, party or nonpany, outside the jurisdiction of the court where
5 Fin I civ P 3O(bH,) tiM . 4 br ito IO y i . _ psood of n& 34
sççS. s.. top ..—. .. , . , io sj . c ws s. 5*. M . ___
a Stun. __
I I
i i
it Fso C civ P 30(b)(i) ms , ——.a - L _ i Is. sos
“i0 to .p ’— i bdp” NisMi i, Ns., so ..
S .w 3i4
55 Fin C civ P is(cH2),a. 4J Moo.anJ I a saow.3IaiPcli
frof Iis 5(i .i
15. . 4j Mxis.aj LuC*a. sow3.Ist p,,_,. i 0 s.. 55 a.
-------
264 TlIEREY/EwoF 3 .pj / 0
IVol 2255
the e is pending should recognize the substantial danger that he
will r ,.e a request hum some other party For reimbursement o(itl
used and related pen ”
A party seshing to depuse the opponern’, expert must usually pay
1 is i4 (em she time he cnde impending to dsscov.
ery. Such paymon may be rstipàsd not only for the time during
which the expert I being bus abe for preparation and
sravd eime.
The notirn may name en she 1 quj..i acoipo.t ion pannaihip,
ciatsn_., or gaonnmen a i end ‘ouM describe with em-
abIe parskui.rjsy the maflm , as which os m n tjes , is sought.”
The orp’. —.ana n mon then dm.ipase one or more odikers,
director,, managing igusia , or other per who to testify
for the organionjon to appear en she frp iaqien.5 it may be easier to
use this prucisdiste and thoreb, , compel the argalliention to identify a
witnen than to seloot a qame lasad on limited information and hope
that the wisame it ‘ d dy knowkdgeaig Of cowie, if the or-
I an adverse pony, is may not identify the most knowl.
ai r.Ue or hsk iSusl wisne. . So appear en the d.p Iitn.
The 4ç-—’ian will ordinarily be aen aphimuy reu,.Jed but a
reams a—liI-i provide. , that the parties may “ ipulate us writing,
or the come may ardor, that oshar ons of rsc..ding be used.” Al.
5 . en—-I . L.fah..II k 5.th1._.hJWS._, L
v I . *1.
U PW. I. Qv. P 5*W 4
U d p1j • psy s h, by Ito
i. _ iL is pds a pisI f , . Pm L Qv P
m ___
to . u J by ài b - . , s m
— A . iI % .,t ’—
15. PmLOv. P. 0 1$L
U k• 4
* d . his -p wbb isud is y . .. ito
e. utodsL _ i ’- I __ I. . . . lmoju,to.,”— —Niso , .4 ,
is III
n - — — & m ito Ito
0 s _ LL to ILJ by .r - ,,s Pm L Ov P
. s a Iis so.., is disy a isad.. —
.i1.. i— k - . . S71 Pat 354 (i s a ( i5 ) ó .
. U_ se Oto. 0., 17 P 5$. , r-1u).m sh I 7 . .
d iis. __ .. ,j Vat 323 (3d 1973)
t ’ & t . ,. - P .3d lit .C . 5923). $. • IS ALl
an (A71.
1982J PRF2T1/4z DIXOYERr TOOLf
265
though lawyer, tend automatically to order a stenographer, the use
of a reliable tape recorile, may suffice when the ws*flc 5’ l tlmony is
not expected to be COrnrov . j or lengthy
Normally the witness will appear us person to testify but the par-
ties may stipulate in Writing, or the court may order, that the deposi-
tion be talccn by telephoneS This procedure is also of recent origin,
and it is not yet dear to what extent it will be used. it is understand.
able that an attorney will wish to depose important witnenes in pa.
son. Newnhefr , in some cases the saving, in cost will outweigh the
advantage of having the deponast physically present
To prepare for the dtptisitio.i, the interro. should review the
pleadings, answer, to inte galore,, documents (his own client’s
and those produ by the oppone u or other witnesses), pnor depo-
sition transcripts, and memo,ap on the underlying (acts. He
should ccnsult his diem to discover additional areas o(inqwry. ide-
ally, thelinterroptor should take a “hands on” approach and, to-
gether with his diem, visit the intersection, in.pe t the punch pious,
or walk through the sue what the toxic fumes are said to have arms-
mulated Similarly, the witne, and his counsel Ilsould conuid, do-
ing the same. The attorney who makes this additiosiaj effort is
ahnon always better prepared a result.
The interrogator should also familiarize hiqis ( with the impor.
tam applicable case law, particularly the most ‘atm dma s gns . Af-
ter this preparation, the attorney 1 ’ould take time to on ende the Me
and just think about the case.
if the witnon is not hostile and no qhicaJ barrier prohibits u,
the interrogator may elect to talk to the witnen in advance of the
deposition: explaining the proceduse, exploring the wisnen’ knowl-
edge of the matters in Iispul arranging a con%en ien time for the
deposition, arranging a conovIia and unanbairaning time for
ace of the subpoena, and lu. ’ 4 ting an agmemens on the witness’
companat. Technicauy, the wine. is entitled only to the statu-
tory witnen fee , 5 but the isueToptor may agree to compensate him
is ‘ito on aay u p . 1 . ., I. sto 1 isy ,
th. to a.b by “ isph F., pi.,.... . c i 11.1. is s.d ah, is (. . 37 (l)
37 (b )(l) s.d 434 a pn-.- ,s . IM.. by U sak.1. tto fln ashs p1...
w , .h. . ., _ ,— p-, , is - Pin a Ois P 3O )(7)
. ModdCo , , P— 1 IC 7 .lSh OS 7-lOs (l 97 .A a , k Ii,
I* A,isOTAT 5 Ca , ,, a. Picr,s.a..i.. 23 1-42 (lO7
30
-------
166 THE REVIEW OF IJTIC4 TION
IVol 22SS
xpeiues and I wag&’
Finally, the in savogator should prepare a writ ten list of the ques-
tions he ansaub to ask. With this list, the attorney can ensure thai he
raises all pesitnern sewn and, where the worduig of a particular
quesima I aitical, that be ask the question perfectly
IV. Objectives
4 t A u .. .. 7 er _____
The two__I and often confticting , objectives of deposu Ions
are obtaining dlouvcry end ba qg adinseiom The purpoam of
arn 6,ss, to queon the wisoms dry of all relevant infor.
matson, and . d, to bind the witness by his own testimony to a
particular on ad facts. To achieve these discow. purposes, the inter-
rogator must ‘iassalIy invite the ‘ ipesvent to talk. For example,
the jr—jo, may M, “ g there any other facts upon which you
bate your claim or l’*naeJ that. . “ until the amw “NO.”
To acquire admissions, the inturogato, typically will frame his
questions narrowly and, . hioi.td he nbsaii the dnwnion , switch to
another subject so p.ev t retraction or dilution of the admission by
the wua Of enune, by switching subjects , the interrogator neon.
— risks acriftting ponant discovery.
Obtainisig dlcoun’y is thus ‘tiaUy defensive since the interro.
tor waa to latru and to limit the ialormasion hernias, prepare to
mow as trial. Obtaining a ” os is primarily offensive in that the
interrogator seeks to obtain ammunition for his own use at trial.
This dissinction will blur in many places.
The qu si may fairly he ed why seeking discovery and seek-
ing .iii am ill.ctIJI.u.ment with other. Why cannot the in-
terrogator the quowions that tend to ‘-blish a helpful admission
and then ask addit nnaI qwnsem on the mow subject even though
he knows that they are likely to elicit aii m . .. . lending to nippon the
1I .pniwnl’s pmaiasi? More onossesely, if the kuernigator might ask
ton q’—’ on a particular subject, .e of which are likely to
dieM ai i m . .. . favorable to his client’s position and three of which are
likely so elicit _ . . favorable so the dipn.m.rut’s position, why no.
ash all son? Ca*aMIy, this approach has the benefti of allowing the
1962 1 PRETRI4L DISVOYERr 7 POtS
interrogator to learn before tnal the deponent’s explanation of seem-
ingly harmful facts
To answer these questions, one must recall the variou, uses of
depositions at tnal” First, depositions are often used so impeach a
witness’ trial testimony If a witnon tcsti6es at trial, he may be cross-
examined concerning statements made at the deposition Rather
than giving the witness an opportunity so reconcile inconsistent por-
tions of his deposition and trial testimony, the cross-exanwluig attor-
ney may read those portions to the witness and ask him to oun&m
only that he so tasthed at his deposition. Opposing counsel muss
then ask questions on redirect examination to mitigate the harmful
aspects of such deposition ten.mony 1I however, she witness gave
an exculpatory explanation at she dpontion, he may reply that the
esoss-examining attorney is reading only a portion of his deposition
or, on objection by the witness’ counsel, the court may require the
cmss-exam,p r to read the additional deposition testimony on she
same subject” Even if she attorney is nos aimpdkd to read the
suppkmenta y testimony, the jury will learn that it has heard only a
portion of the facts and will retain its objectivity until redirect
examination.
If the wunon is a party, opposing counsel may use the transcript
in a semod way. Instead of awn-examining a party concerning his
deposition testimony, opposing counsel, as pan of his own case, may
read portions of the deposition so the jury The deponent-party
cannot offer any exculpatory explanation for such deposition toni-
many until opposing counsel has concluded his case, perhaps hours
or days laser. When the deponent linally takes the witness stand, his
delajed explanation may be unconvincing to the jury. lithe expla.
nation appears so she deposition itself, however, counsel for the wit.
non can compel the lawyer introducing she harmful portion of the
deposition to the jury so read the explanatory portion as well”
We return to she example of the interrogator with test possible
questions on a particular subject, seven of winch are likely to dicit
admissions helpful so the interrogator and three of which are likely to
elicit answe supportive of the deponent’s position. By stopping af.
t . r a . p k.J .,..,L “ r- - — - . t,no,.
iso . .. W.. sass. st
33. Is a Qv P 32(.fl4)• — Fin, a. Lirn 505
Si Pin ft Qv P fl(i)(2)
ts ri a. c p r, . a. a . . sot
II . sIr — .-- • _ j •—t ,ac s-se, as P-li (l)(2) (I P
-------
268 THE REVIEW OF LIT/CATION
IVol 225
1982J
PRETRIAL DISCOVERY 7VOLS
icr seven questions, the attorney seeking admissions can create a por-
tion of the deposition that may be used either to cross-examine the
wunen at trial or to read dir&tly to the jury without an exculpatory
explanation by the witness. Suppose the interrogator has asked all
ten possible questions at deposition. U at trial he rené only the hrs*
seven questions and answers , he may appear dishonest to the Jury
when the wunas or opposing counsel brings to hght the further ex-
planatory seni .o y on she me subject at the deposition. Addition-
ally, she wisnas’ p Li. ir ,1 i may sound more credible to the jury if
he has made it psevli..4 . Even if the interrogator does not use the
deposition sraa ps, be rishi she danger that the witness may an-
swer a quri.tsnm with she preface, “As I explained to you at my
A.pnaitios . . . The .‘tpi—”Isos given at deposition may then
take on she aura ala prior ‘ .‘ is1utcnt statement, tending to add plau-
sibility to she wisnon’ trial son ’o”y . Conven.J ’, the witness’ expla-
nation at vial el a harmful fact which was sot previously given at
die ‘ 1 -.u.tios c though sot gi b’ use not asked for, may
app..r to be a recent fabrication.
After obtaining she . ‘i”— . and proceeding to other areas of
inq”iiy, the Interrogator may ehanoe resuming to the
original subject to mb hi r ’ iiuig quessions. At trial, the interro-
pier may read the original. into she recoid , or cross-ca-
ai ” the wisnas about it, and hope that neither the witnan ior
O PO5dI( umd will cite the later ao eus . Such an approach is
Uafonunaze*y, in actual practice there is no dear dividing line on
questions which are likely so eroke admi— ion In reality, lawyers
prqinriuig far and taking depositions squirm nitdlectually as they at-
tempt to determine ibue to draw the line, If the interrogator asks
too faw and the wunne I h* with several pe hatches,
the “ — n may not be of much value, ll os she other hand,
she doposing attorney p.us . too far, the in may bemme di-
hated as the wisnsos b u to J m away its harmful impact
The Miserroptor should decide what information he sooth from
she wisnon bd rn the d’p”-tinn begins. For example, when depos-
ing the pi i ii ’s damage expert in an antitrust cue, counsel for the
— may soak pure dis esy , rather than admissions.
Thus, he will mb the expert so explain everything he has done, to
. ‘tpl ” osak CalC”I-’ O ’ ( wham be ob &,ed the numbers, which
1gw. be multiplied or divided, and why), and to stase what further
269
work, if any, he plans to compkte on the case But the interrogator
will not seek a direct admission that the expert did not consider infla-
tion, a general decline in the industry at issue, or variable costs The
risks of seeking such admissions at the deposition are that the expert
will have prepared good answers by the time ol trial or that he may
revise his approach to eliminate apparent flaws If counsel for she
defendant causes too much damage as the deposition, counsel for the
plaintiff may change experts.
On the other hand, if the interrogator has the facts, he may pri-
marily seek admissions hots the witness. In a products liability cue,
for example, counsd for the plaintiff may seek to compel the corpo-
rate defendant’s president to admit that he knew of certain literature
or studies casting doubt on the safety of his product, that he knew of
ways to modify the product to eliminate the hazard, that the cut of
such modif,ca ,on was negligible, and that such modification was
considered but rejected for sonic unworthy reason H counsel for the
plaintiff obtains one of these admissions, he has moved one step
closer to winning his case. If not, he has not sacrificed much since
opposing counsel surely knew that such points would arise as some
time, and at least the interrogator will know what he must prepare to
prow at trial
Typically, however, the interrogator seeks both discovery and ad-
In ons on moss subjects. In light of the inevitable session between
these objectives, the interrog.itor should plan what he will settle for
on each subject to be covered. As a housekeeping matter, he may
want to bracket in his outline those questions of which he is unsure
and wait until the deposition to decide whether to ask them.
In deciding how far logo in examining a particular deponent, the
interrogator should consider whether he wants to settle the case or to
try it. If he wants so settle, the attorney may drive his points home
during deposition questioning, thus signaling to his opponent the s.g-
rulicant risks invalved in proceeding to trial. On the other hand, if
the interrogator expects the cue to be tried, he will question wit-
‘ tones without being os overt about the potential significance of their
testimony.
B
A deposition, of course, sor purposes other than obtaining dis-
-------
270 E RE ’IEW OF UT/CATION
IVol 2 2YI l 2I
PRETRIAL ()ISCOVERr 7VOLS
onvery or admissions. One is to preserve favorable testimony A
lawyer will often 4 ”c de not to schedule the deposition of a witness
favorable to his cue, waiting instead to call that wstnon at trial In
such cases, an attorney may hate no reason to take the witness’ depo-
suson and thetoby him to cross-examination by opposing
counsel On the other hoji 4 if the witnon is elderly, infirm, no-
madic, or beyond ibejuriediction of the tnal court, the lawyer should
set.— ily consider i4is.iJ j )i Witness ’ deposit son When deposing
such a witness, each attorney should take into a unt that the wit-
non may not be lily the trial and that the deposition may
thcrefory serve so thai soniana. -y.” When the &pn ition is likely to
be used so the wisamo’ trial ,essu’wiy, each lawyer may hesitate to
ask quest tcas n, to elicit itsilainity harmful to his cue. By ask.
ing such question., the atloiney can better prepare to meet has oppo-
nent as trial. Bus if the law . elects not to ask such questions,
potentially baneful mnqy may not surface at trial (the witness
may diej disappear, or, if be it beyond the subpoena power of the
thai cowl, refuse to appear ) and the lawyer may not have to con-
Front that ioni y.
The lawyer should sericudy consider ‘ I uu ng the witness who is
- only favorable , but aucial to hit cue—regardless of age, health,
or residPiLne He . i”d adi I ’ ”lf what explanation he will give to
ho client if he Fails to do so and the witnon it then killed in an aces-
dens before thaL
D .p a iion. may also be used to destroy a deponent’s effectiveness
so a trial wisnue. The insau4azcr may achieve this objective either
by demonstrating through his d p’ tion examination that the wit-
non’ testimony it not cue’lible , or by su fully inviting the witness
to nmit I mi l to a series of propc.itions which can convincingly
be shown a t trial so be false.
Another obj ctive of she interrogator may be to eliminate entirely
the drpo—etit so a poilbie trial witnon by asking him to confirm that
he bso no know’1e4 about the key facts in dispute. Finally, a depo.
. Vso. a. Ov P ioW(I
I, S. e i e ws,s - y miy 6s
bs u — ‘ —- — hgr.us mo Lat . S. N • Cp, No. 366
ill. — . — 43-44 (P C.? A at. i4io ( i-j—.- fr&.- -- ,
- . ibs au,—. — . aài . ...iI , - by Ms — eMs. .bs d mis ,
• Ms Ms • i.i i Ms — — sn ”, ei.g cbs. .Ms
____ a L— - j w bs d — ma t .hss eMs. a p-— 4 wicom
_ s JkML by , y ‘ ‘— . 1
sition can provide the interrogato, with testimonial support for a
planned motion for summary judgment
V. The Lawy&s Manner
A deposition as a kind of meeting and even at a meeting among
equals, one person, far whatever intangible reason, will usually take
control fleposinons are no exception, nor should they be The law-
yer who controls the deposition has an edge Consequently, a certain
amount o(jockeyuig position often occuri at a deposition, partic-
ularly at its start, to determine who will seize control Ifs lawyer
cannot dominate the deposition, he should as least prevent his oppo-
nent From doing so
Learning to take control ofa meeting is probably a better subject
for a psydbologyjourud than a legal one, but it is noneihden appro-
priate to observe that a lawyer generally avoids losing control by
choosing his pound carefully and not retreating. For example, the
nterTogasor should not demand that one of two witnesses to be de-
— that morning be sequestered if he intends to abandon that de-
mand should his opponent refuse. Similarly, the witnea’ lawyer
should not untrucs the witnon not to answer if he plans to withdraw
the insiniction, ether directly or indirectly (by waffling), when the
interrogator lw the deposition to apply for a court ruling. The
wisnon knows who is in charge and will react accordingly.
An attorney need not be obiinircous to anume control ala deposi-
tion. Although lawyers ate °o’netimes succentW in bullying their op.
patients, an experirneeti attorney can readily deflate a pugn 4 nus
opponent, causing the opponent to lose rather than gain control.
An experienced litigator will sometimes attempt to intimidate a
younger opp nt . For example , J the experienced attorney is coun
eel for the deponent, he may distupt the younger interrogator’s ques-
tioning by morting derisively as hit questions, arguing about their
rekvance intemipting the ‘ po. tion to make telephone calls, or
threi truing to walk out wish she deponent if the deposition is not
concluded in shiny minutes. The younger lawyer should not yield to
such ansim but should stand hit ground and pruuiieed with his ques-
tic iing so planned. If he hurries and abbreviates bit questioning, the
qioaluy of the ‘ position will suffer. It it highly improbable that
counsel the witnem will fallow thmugb on his threat to leave the
* .r . r. a. civ P 364c
-------
272 THE REVIEW OF LIT/CAT/ON
IVol 2255 1982)
PRETRIAL DIXOVERr 7VOLS
dposition, ii l e should, the court will almost certainly order him to
return
lithe witness is nervous at the stars of the deposition, the interro-
gator’. natw.aJ tendency is to attempt to put ham at ease This may
not be wise. If the wunen is the opposing party or is otherwise ho.-
tile, the in’ ,ve s may obtain more truthful and more helpful an-
steni if she wisnon remains nervous. As the deposition progresses,
howcv the witness will aliviost certainly grow more relaxed Some
lawyers stir u In keeping the witness off balance by alternating
their ‘ ‘duej, ‘ig , at some times, cordial and accommodating
and, at other,, brusque and u ,lpLeaiant . It is difficult for the wutnon
so r iam as one if he pe. .vso the uucnugalor as unpredictable.
Finally, thesis it, of cow, ., no st’ ’I as , rule. In a given case, the
Iaaiyegatn . may irLl , that a friendly manner and convenauonaj
quL _ Jng atis matis likely to disarm the deponent and elicit helpful
tha. a mare ziost .ialow approach.
Inevitably, the witnan will horn something of the interrogator’s
uwr through his qa -’aing . Accordingly, the lawyer in charge
of the one may prof, . that a osmgrr Acjate take the d.poustions.
In this way, the mar law er , trial counsel, will arrive an un-
keewn quantity so the witsino at trial.
VL Strategy and T iics
When preparing the depo. tion, the interrogator should give
careful thought so the order in which he will approach various sub-
jects. lie mint determine whether to begin with the important issues
or so postpone those q.’ .s nsu until the witness starts to tire iind is
further away in time from the cautions his awn lawyer gave him.
The quessin . I o en fflcuh and there no single right answer.
Probobly, most lawyc.. path . so gather bckgyound information
bofu, , turning so she decinve ues . Ahhough this approach is not
be rily wrong, the intesvogasor should at least consider the “go-
ing.foe -the.jugujar” approach . In alpos ng an expert witness, for cx-
‘ —‘pie , some Ia.i , . ,. may spend the tint two hour,, or even two days,
on the expert’s qualitiessio.ss. An expert will usually feel relatively
comfortable while ‘ —‘g his aedemials and waft become more so
he w ’ ”idun eye sct with she interrogator and grows armis-
tamed to the cadence of his ware and his manncnj,, ,s. The same
supert, however , may he surprised and ftustcred if asked in rapid sue-
273
cession has name, whether he has been hired by the defendant as an
expert, whether he has formed an) expert opinions, what they arc,
and then, in greater detail, the bases for those opinions The expert’s
qualifications can be explored towards the end of the deposition
The expert may be somewhat unnerved by the simple fact that the
interrogator as not playing by the “rules” as the expert knows them
from his own experience.
Similarly, when deposing a driver involved in a motor vehick
accident case, the interrogator will normally question the deponent
about has background, set she scene (how wade were the streets,
which vehicle was in what lane, did anything obstruct the view, etc)
and will finally reach the details of the accident The deponent will
tend to relax since his own lawyer probably told him that the ques-
tioning would proceed in this way. Occasaonajly, the interrogator
may want to start by asking, for example, the witnen’ name and
whether he was in ved in an ‘ ccident on I mber 14, 1982
Then, without fUrther preamble, the interrogator may ask how she
accident happened. This approach will differ from what the depo-
nent’s lawyer told him to expect . The result may bean answer harm-
ful to the deponent’s one, particularly if he tries to include all the
detailed information shout spends, distances, and times which he re
cently reviewed with his own lawyer.
On the other hand, the interrogator may decide to postpone the
significant questions for at long as pnmble For example, amume in a
personal injury suit that the liability issue is close but she damage.
are clear and serious. Since the plaintiff may be more interested in
his own injuries than in she psec se dynamics of she accident , counsel
r the defendant may decide to quenion tins about those injuries
and then, houj, later, pnsc..d to liability. By that time, she plaintiff
may have only a dim rseiolkctaon of his awn lawyer’s warning. about
the liability pitfalls.
lithe case involves a sharp factual dispute about who said what
to whom over an extended cosine of dealing, the interrogator may
develop the facts by inquiring about them in chronological order.
Thu approach eases the questioning for everybody, including the
witness. Therefore, even ii the interrogator’s approach is generally
chronological, hopscotcbang around from time to same may help to
develop inconsistencies in the tacimony of an untruthful witness
For instance, alien questioning the witnen about his tint four meet-
ings with the interrogator’s diast, she interrogator may want to re-
-------
274 THE RE ’1EW OF LiTIGATION
(Vol 19821
PRETRUL DIScOvERr TOOLS
turn to she second meting to ask whether any discussio. occurred
there of. particular subject
The interrogator should not become so mesmerized by his own
outline of quesuosis that ininguing answers tail to register with him
Having settled on the boss order in which to cover his sui.jecss, he
must rrpcatrdJy decide during the deposition whether to ddhere to
his cnps or to on is aside and immediately follow up an interesting
answer whidi may, example , pertain to the final subject on his
agenda. The hitwmgaior must quickly and intuitively decide
whether the briir6t of pursuing such an answ outweighs the advan.
sages of hi original orgiiIii Iin of tapes. Should the interrogator
hesitate, the wita may interpret the pau as a signal that his an•
r us some Way iqjurmd hi ame, and modify or withdraw his
s tM, lesit
lithe onorrogator will be deposing several similarly situated wit.
he dimdd vary hi app. acb . ( herwise the deponent (who
may have att u d the ot £Iep tions or read the transcripts) will
amic e she appniath and kd comkrtable front the start. At the
, the inserropsos”s first rih . aitive question to the witness
ii.iId d r hem hi lead quinsis to other wisn’—rs.
AM deonminiag she or in which to addrem the various sub-
jects, the interrogator mint decide on the order in which to pose spe-
cific qa—si’os and bow to wesd them. It a difkreiice . The
Ilowing of appsi ..rhi. while no. exhaustive, may illus.
irate the
4 G’ dv W, w r- c ,—&
The interrogator may want the witness to commit himself to -
tarn propositions on seemingly aiw introversial matters before turn-
ing to she omiral issues . lithe witnen perotivec such questions to be
unimportant, he may readily make significant c oqici’ ioqu .
For . wiipie . suppose that the underlying facts in a given case
reveal that there was correspondence between the parties, that as
some point the interrogator’. client sent a letter so the other party
stating that ontain facts, favorable so the interrogator’s case, were
true, and that the other party mide no written response to that ki-
tes. How does the interrogator obtain the maximum benefit horn
these helpful facts? If the Interrogator studies the airraposidencc, he
may find that his client sent eleven ktters prior to the crucial letter
and that the opposing party responded only to the filth and the
eighth to correct some Inaccuracy In deposing the other party, she
interrogator may take she letters in turn and ask that party to con-
firm that he received each letter, that he read is, that the kiter con-
tained an accurate statement of the facts, that he did not respond to
it, and that he did not respond because the letter was accurate The
interrogator will Further ask the witnen to confirm that he responded
to the fifth and eighth kiter. and that he did so to wu, ct their inac-
curacies After discussing perhaps the eighth or ninth kites, the in-
tenogator may ask the witness to confinn that his general policy or
practice was to respond in writing only to letter. which were maccu-
rate in some way. The deposing attorney should not wait too long to
pose this question since the closer the interrogator comes to the date
of the key document, the greater the risk that the deponent will have
his guard up. The interrogator has a greater chance to obtain the
admission on policy or practice if he procoede in this painstaking way
than if he asks without preamble whether the deponent’s policy or
practice was to respond in writing only to inaccurate kiter..
The described scenario raises the problem of she conflicting
objectives of discovery and adminions. Suppose she witness concedes
that his policy or practice was as the interrogator suggested The
interrogator must decide whether to stop that line of questioning
since he has secured a favorable admission or to continue and ask the
witness to confirm that, na .i icnt with his policy or practice, he
failed to respond in writing to the key kiter because it was fully accu-
rate lithe interrogator halts the questioning, he will have no inkling
of how the witness will answer at trial the cntical question about the
key letter On the other hand, i(ihe attorney continues and poses the
key question, the witness may feel compelled to make the desired
admission by the force of the answer. he has just given, thus aiding
the interrogator in winning his case The witnen may, however, re-
fuse to make the admunon, and instead give a sell-serving bus credi-
bleexplanat.on olhis failure torospond tothe key letter lithat
happens, the interrogator will learn what he must lace at trial, but
the witness’ explanation at trial may assume an extra patina of aedi-
bility since it was also given at d’p itson
As an alternative to these approaches, the interrogator could lol-
a middle course and ask the deponent only whether he received
the key letter, whether he irspoai d to it, and nothing more Even
-------
276 771E REVIEW OF lIT/GA TION
jVol 22?,5
1982J
with this approach, however, he may risk losing the admission since
the witnon may not cooperate by giving one-word answers without
adding an explanatory gloss.
The technique of obtaining admissions of preliminary proposi
isms may aba be used with respect to notes made at meetings As-
stunt the opposing pasty ‘ 4 . —i . that the interrogator’s client made a
statement harmful to his own owe at a meeting between the two par-
ties. Assume further that she noise taken by the opponent’s Ieprrsen-
tative as the include no mention of the alleged statement
How ow the miserugalcir bert utilize that helphd (act in deposing
the note taker? One appetiath is to consider tins the notes of other
meesinp and so contirm that the deponent’s general policy or prac.
tine at those other meetings w to make notes of what was important
and to omit what was unimportant. This proposition is so seemingly
obvious and nonconuow_siial that the deponent may readily agree
that he took noise on that basis. Contrast the situation if the interro-
gator e to begin his questioning by asking the witnen whether his
approach during the key meeting was to transcribe important state-
ts and to exclude those that were unimportant. The deponent
might quickly p. se the I ph.atiosis of an affirmative answer and
hedge. The witono might dairn, tar example, that he made noses
randninly without regard to the signiticance of a particular state-
ment. Nthough this explanation may be somewhat implausible, the
interrogator will base gained nothing 1mm the deposition. In tact.
be will have l posind by permitting she witnem to give a pretrial
explanation of ha nu c1 which, if it should surface as trial, may
lend aedihibsy so the “ po mt’s trial tastimony.
a & aolsy a umsv N’ soö M Tord b Mv Mzi Aniuvr
Deponents are generally aware of what they have already said in
the dp”tion and want their testimony to be consutent and believa-
ble ( n. .&equensly , there may be some advantage to asking a part.c-
ular qusetion bd another. For example, in a personal injury cisc
in which the plaintiff lass saw a doctor six months before the deposi-
tion. does it make any difference in which order cowusel (or the do-
asks the plaintiff there questions
(a) De you still have pain from the injuries you claim to have
r..— in this aendens?
(b) When were you last treated by a doctor for the injuries
yeas daim to bass , i wd in this 4 dent ’
PRETRIAL DISCO VERY TOOLS
277
Some accident defense lawyers argue that the second question should
be asked first lithe plaintiff first answers that he was last treated by
a doctor sir months ago, he may think that it will sound odd to say
that he still suffers from intense pain, and so may tend to give a more
temperate account of his injury. On the other hand, if the plaintiff is
tint asked to descnbe his pain and characsen zc it as excruciating, he
may then rationalize his failure to seek further treatment by claiming
that the doctor advised him (or that he concluded himseff) that med-
ical treatment would be of no further help and that he would have to
live with the pain.
Obviously, asking the quousons in one order rather than the
other does not assure that the answeys will be more favorable to the
interrogator. Nevertheless, it should improve she odds slightly and a
successful litigator will constantly watch tar small advantages.
C Ward,,,g MvGivmas Awwsswv ’,
Although some lawyers contend that the interrogator may nor ask
leading questions or cvoss-ezajnjp .e the witness, as a practical matter,
the interrogator may generally phrase his questions he wants.” By
wording the question aggressively, the interrogator can improve his
chances of obtaining favorable testimony.
For example suppose a plaintiff-distributor alleges that be was
wrongfully terminated by the dekndant.m u without ade-
quate notice. The intaTugator could pose his question in either of
the tallowing ways
(a) As of May, 1982, did you expect to be tenninasad by
dchndant’
(b) In light of the histosy of your dcsimgi with defendant in
1981 and 1982, including the unpleasant mectings in (ktober,
1981, and February, 1982, which you have told in about, did it
come as a bsgJ siupnse to you when you isonved the letter of tar-
runatun in May, 1982?
The interrogator using this approach should attempt to phrase the
question so that it tends to persuade the deponent to assent to the
proposition at issue. Sometimes, the interrogator may coax the wit-
ness to accept a proposition by starting his question with, “Would it
39 Rule 3 9 (c) peenin .1. p— n pn.u,d sin snul un sin
F.derii Ruin dE .deace - flume n . pmes - ----- — b Ies iu qu um
-. .i. ,, - r a
EVID ii(cj
-------
THE WIEW OF U77GA TION
JVol 22 .S 1982)
PRETRIAL DISCOYERY 7VOLS
be lair to say that. . .?“ or “Would you agrec that “ Since most
people want to be lair and agreeable, it may be difficult for the depo.
Dent to answer no to suds a questinn.
LZ •‘ y i i.—’ ‘ — iW
Sometimes the witnes will recoil from and reject one of his own
asnienusom if isis put to him starkly, particularly if an allegation of
intentional wrongdoing h at l ue. or mample, if the plaintiff al-
lega fraud aid breath of contract b ” ” ’r of the defendant’s alleged
minqsresentau.cns, the “ endami’s attorney may directly confront
the plaintiff by
you claim that Mr. swbd Med so you when he said
(w .sever he idlagedly saldJ?
Some lawyers will objeti so use of she word lied” on the ques-
ground this I oa ba Owluáii ,.at If so, the interrogator
may oust the obj en by rewording the question as
you daim that Mr. Crawfu,d lied to you when he said
Iwhat he 1 5y said) in the that he knew that such
— - - om hs w k s tbssade ?
A ir - may stop short of aimeering that hi opp nenu lied to
him though he is willing to make the n4n&.ntially identical,
though ii.u . ir.ntically more omaqthoiis , charge that the other party
m, ,iotwtcd the àuat Even if she &l p lwet imisti that his
4ip’ ’t lied so him, the interrogator has not lou ground sanen the
wInes s fly had charged arch deception before the quouson .
inilr 4y, if she pl#iiqiff 4aims that the defendant acted for the
purpote of in6icsing emosiceni harm upon the plainuiff the defend-
om’. attorney may ith directly whaiha the p1 ” ntiff contends not
only that she i & naI.na’i . ‘“i” . butt him, bus also that the defend-
acted he did b that purpore. 1 plaintiff may hesitate so
at arch a question affi,mativdy.
£ a,
Some q”- -— afford the inservsgav a line of attack regardles
of she witnes’ The q”. ’ will olken begin with the
phese, “Did it ocme so you as that point that.. .?“ This approach
can be used effectively in cases ranging from complex fraud. to auto-
mobile collision, to products liability Suppose the plaintiff in a com-
plex Fraud case alleges that the defendant took nine separate steps,
the last of which caused the plaintiff to lose money After ascertain-
ing the (acts on each step, cowisel for the defendant may ask the
plaintiff
Did it occur to you at that point that Mr Wdhams might be
attempting to defraud you’
If the plaintiff answers no, the interrogator may ask him to confirm
that the defendant’s actions up so that point (dl within the range of
normal busineas conduct. Should the plaintiff concede this, the facts
allegedly constituting the fraud are narrowed On the other hand, if
the plaintiff responds that it did occur to hun that the defendant
might have been perpetrating a fraud, he must demonstrate that
thereafter he acted reasonably in light of his suspicions.
The same approach may be used is connection with a right-angle
collision Either driver may be asked:
Did it occur to you at that point that an rrtdrnt was about to
IF the driver replies no, the fact finder may condude that, in light of
the circumsuanom at that point, the driver should have recognized
the risk of an accident and acted accordingly. lithe driver answers
affirmatively, then his subsequent actions wdl be judged in light of
the concededly recognized risk of an accident .
Finally, the same technique may also be used in a products liabil-
ity case. In questioning the defendant’s safety engineer, the plain.
ifs attorney may ask:
In light of the anlonnation av Ibk to you at that point, did
you give “ “4,atins to I m..i.it.qg a modificasion in the de-
ugn of Ithe critical leatwe of the product)’
If the deponent answers no, he will uk being attacked at trial be-
cause “that thought ne even c d your mind, did it?” Ii the
engineer says yes, then he will be fu cd to eaplain why, after specific
consideration, he made no change.
P &i.Msâtq Mv
The interrogator may ask some questions primarily to obtain a
good crisp colloquy with which to ausaezamine the witnon at trial
or to read to the Jury. The interrogator may gain greater control of
the witness at trial by covering canaan subjects at the depn.’t.on. For
* - .
-------
2a0 THE REVIEW OF LIT/CA TION
jVot 2 25S 1982J
PRETRIAL DISCOVERY TOOLS 2a I
example. counsel for the plaintiff in a peoducta habihty case may ask
the defendants engineer
In detignuig the univenal joint of the sucrui wheel did you
take sakty cinsidrru.osis into account’
Is that berw-r you , .‘ogiur d that a defectively designed urn-
venal joint ought p...oiial injunes a, draih’
fhd you take into douum that a pednttnan such as plain-
tiff might be onotidy isijuursd or killed if thu wuversal joins were
delsetisely d gsIOJ and is
PartiCUlarly if the ito be tried before a jury, counsel will
want so upetid time on those ob, iotas posnu beneficial to his case
C M t
In preparing for she 4epom sso. of an adverse party. she interroga-
tor should the role of the drpoii.imi and consider two quex-
slum. First, what pc.ibfs r by the deponent would be
. i-.u-- ’t with his p a. ui daim? For example, in a dispute he-
swoon a landl”d and manl as to whether the tenant gave timdy
notice of his intention not to renew the lease,” suppose the tenant
contantla that he gave timely oral notice and that the landlord as-
mated him that wntten notice was The possible actions
by the lan d subsequent so she alleged oral notice which would be
wish hi. pumitsisi that an such notice Was given might
include Ii.i’ig the pmaIN with a real anate broker, printing
brochures to describe s or showing the premises to a prospective
tenant. The latasupsor shoisl 1 investigate such possibstitim at the
i ’iila ,ly , U she plaii tiff m that be aitored into an oral coss-
tract with she dth. sod she def ni denies such an agree
mast, the intesmaptof should ask whether the plaintiff arranged with
his own wpplien to obtais ’ the materials m.td 4 for performance.
Failure to initiate mach arrangements would be is ’ .—’Icm with the
plaitt 4 iWi claim that a aist existed.
Suoo. A . what ret.mv c may she depo ’nt base (ted in
which it would have hem in his interest to take a position inconsu-
tent with hi btigi’mai claim? For mr’p e . if the plaintiff avers that
the defradart . ld him &fective gooth, the inttrvogator should in-
quire whether she plait’ aUcmpted to r l the posh. lIso, did he
Ike them de tiw? The interrogator should at least deter-
mine the identities of all prooprctive buyers wish whom she plaintiff
deals He may further inquire about the details of the deponent ’s
conversations with these buyers. On the other hand, he may decide
to avoid highlighting the point. and instead, to interview pswatdy
the prospective buyers at a later time
II &4as v Mr Xamds gw Ithe lVrviuvu
The interrogator who seeks full discovery of facts should be care-
ful to eahaust the knowledge of the witness. II asked who auen’ 4 ed a
meeting, (or instance, the wittiest may say that he, Mr. Cunningham,
and Mr Han dad. The interrogator should persist in asking whether
anyone else attended the meeting wiul the witness says no.
In dealing with broader subjects, the interrogator must carefully
avoid becoming lost in the details of the deponent’. oi wers . For
example, the interrogator may begin by asking the witness wInch
meetings he attended on a particular topic. After she deponent gives
the approximate date of one such meeting, the irnetiogator may
question him at length about what occurred. However, when she
interrogator completes such particularized questioning, he should re-
turn to she general subject and ask whether other meetings on that
topic west held. This pastern should be repeated until the witnea
confirms that no other meetings west held. The interrogator must
eenenitrate so be sure that he has exhausted all knowledge of the
witnas about each meeting who attended, what was discussed,
what options west ainsidesud, and what action wee decided upon
VU. Methanios and Problems (and Most Tactia)
The expectation under the Federal Rules is that d.p t.oiu ordt-
itarily will proceed without court intdrmncrn. The inienopsor
may seek information reasonably cakula’.d to lead to the discovery
of admissible evidence.” The objections made by other counsel at
the deposition will be titled upon by she court at, or immediately in
advance ol , triaL” Usually, the witnen will answer even those qua-
tons to which objections have hems made, union his counsel isntrucu
him not so answer, which i y much she exception
Depositions are usually conducted in an adversarial but coopers-
tiw atmosphere, and thu. it is rarely ao . ’y to mnvolve the court.
tt a v P 26(bHII
41 rmLOvP* (3).orm 5Ov?fl*t
45 i.W
-------
7711 REVIEW OF LITiGATiON
IVol 2ThS l982J
PRETRiAL DIXO PER V TOOLS 28
t itigaton take seriously their duty ol good faith in participating
in the discovery pioca . The lawyer tempted to disrupt may be de-
teried by the prospects of reciprocal treatment From opposing coun-
sel and sanctions from the cowl.” Still, problems will inevitably
oocut (rein time to time.
This section catalop in a chri nLgical fashion much of what can
and does happ.’i during A pti. l . I. beguis with who sit, where.
ende with the reading and conuetleg of the tran .aipt, and discusses
in bet many of the pru&L. _ which may arise in questioning the
A. Nb&UD a
The iniestopsor and she witnon will usually Sat ditecdy acres
each other sowaid one cod of the sable, with the reporter at the
cod so that he will bear tbã vuica dwl , . The lawyer (or the wit-
non will noinsaly sit neat to the wisaco on the 4u•t side from the
on e r .
The iniw”ga’ gaerally will hold the deposition in his own
confanna inca and will make the initial decision where to cat the
parsitipanis. A lawyer may prefer sop i oii bim eIf betwem the
wisaco and the door, leading the witness to (od trapped and under
she salernipsor’s controL Conversely, if she lawyer wants to put the
wilacs at one, he may was the wime. 4 to the door. This
anwiç ” duuesa she r that she witness will walk by the
aterTopsor’s side of she table and ubs bit aim or the dccv-
mats he plans so use. The interrogator may seas the witnon so that
he foon the glare from she window, which nsa becnine annoying
over the course of the day.
The inscreopsor may stand m ..s.tarily to stretch while contin-
uing his qii.’.wwig or may stand beside the witness when asking
about a photograph or dn’vm”t. However, counsr 1 the witnon
should ret ” ” this the insenopsor be t d once she orl for
standing h coded so that the insauogaser it not hovering over the
wimon Ahhough the smponanor of math ‘ u’i” should not
he cza atsd, tho—¼1 It be Ignored .
5. Th,o
The inteuoga’ ordinasily will begin she drp iition by request-
ing that the reporter administer the oath to (or swear) the witness”
kcasiosially, the attorney will encounter a new reporter who is not
yet authorized to administer the oath One solution is to locate a
notary public to administer the oath Although thai procedure as not
stnctly in accordance with rule 30(c), unless an objection is made at
that point, the validity of the transcript as a deposition will not be
open to question” Even if such an objection were made and the
transcript ruled not to be a valid d.pomt ion, the transcript would still
be useful For cross-esaminasan as a statement by the witness.”
Sonic deponents refuse to take the oath for religious or other rca-
inns. The reporter should ask such persons to affirm that they will
tell the truth.” Occasionally, the interrogator may question the wit-
ass on what the oath means to him and what he thinks will happen
to him should he fail to tell the truth While one might plausibly
argue the relevance of such questioning, it is generally provocative,
unproductive, and, if it probes into the deponent’s religious beliefs or
op nicns , improper.”
C. 7 wom , 4 C be7
It may be wise to instruct the reporter to note the puesence of
others at the start c i the deposition, well as when they subse-
quently leave and return. Such information may prove valuable.
For ezample, if a deponent dauns at trial that he was nervous and
rattled as the &p tion and thus gave Inaccurate testimony, the in-
terrogator can show that the deposition environment was comforta-
ble by reminding the deponent that his spouse or busin,.. associate
was pommi to lend support. , if the defendant’s attorney brings
his diem to the plaintilFs deposition, counsel (or the plaintiff may
later depose the defendant, remind him that he was p ut when the
plaintiff w deposed and made certain charges against the defend-
ant, and inquire what actions the ndarn has taken to determine
the validity of those charges.
The interrogator may requns that persons other than the depo-
nent he sequestered (usually because the interrogator plans to ‘ 4 ’p” ’
them later and does not want them to have the advantage of hearing
4S . Fin C av P O(c)
St . Fin C Qv P 32(dHt). rn(s)
47 . Fin I £vw aistb)
45. . Fin I Qv P 43t . — Fin I. Ivis 45
45 . FwLI onaiI
St . Fin I. Ov P 17W-
-------
284 THE RE VIEW OF UTICA TJON
Vol 22S5 1982)
PRETRIAL DIitOY RY ltWIS
has questions and growing accustomed to has styk) if sequestration
is important to the mierrogatos. he should raise it with opposing
counsel before the day of the deposition If the attorneys cannot
reach an agreement, the Utt ru ator will then have time to obtain a
ruhng linen the oourtai Itbe watts until the morning of the dcpost-
non, he may be unable to roach she court for a riding.
Mtbough many lawyms honor the thibboleth that a party (as dis-
tinguashed from a wünom) boa the sighs to be present as every stage
of the pso w ’g . iadudl. dtioco. these is good authority for
_____ a party so appiopuiste ca&’
it the ustcrrogsw$ dint i p..aotti nod p hun a note con-
___$ suggaised qu.seoo . she attorney should look as the note but
otasisinue with hi plsoacd qirr t .r ’g - Thai, sites several minutes
have pt.ar.’d . be may k she qusv without reknüig to the note.
These am two . --‘--j for proceeding In thi way. rant, the witness is
likely to have hi giseed tç he the seetic. ’ which imi”di.’ely fol-
lows the insesuopten’s reading sishe note. Second, ip 1 ,Iig counsel
will obtain soy t.01 1 b . ins she g of she snscrrop*o?s
0. ‘lb t
At the stilt of ibs &poail ’O ” the reporter will usually inquire
whether she attorneys agent to “she usual seipulatsons.” Even ii in-
cli ’d so nocqi. these stipulatioris. couue t should ask the w portcr to
state them qi 8 y since she wmuIas’on may vary from one no-
ponatoaaosbcr. Ushe)awyudoesootaireet000eormOinof ihe
sipstiaiasea ,M donald be suit so dick she 6r* page of the transcript
whom he mcmv . it. Some stenogeapbers are so ww med to the
onial ssiptala”c . that they include thom even when an attorney spa-
_diroon otba
A fairly “Mt hem ” of the usual usipulasins is as
gg, so - ’ . sod Pling ate waived; all objoc-
fr lID P. Qv P sttc (! 5
is . O— ot Pat iii set a . 17 (N( 1971 ) (Th a,.èt c1 isqunUU
- .soai wath,ji --— _ 5_ . - . ,i k-- r Wth*
— psoy “) — r fl 4 — E .
Ln Ne.. Cu. 13, IIat — S S P.i . .id - — 01 soy so
— • soP & 0 N sa ., ‘av nz 1.22 (1512)
11001 except ax to the Form of the quexi ou arc reserved uui.iI the
time ol’ mat
The attorney should carefully constder whether to enter into these
utipulas ions
/ &prn, —The witness has the right to es niine and to read
the transcript of his testimony, and to make ch.uigcs of form or sub-
stance, with a statement of reasons lot making them Alter making
any corrections, he should sign the transcript ‘
To waive the requirement of signing and the corresponding nght
so examine, read, and correct the transcript, all counsel must agree
and the deponent also must consent since the rights involved are
his w The interrogator may decade to require a signature, particu-
larly if the deponent seems devious. I I the witness is no. forced to
sign, he may claim at trial thai the reporter erred in transcribing his
testimony and that his testimony Was shghdy, but materially,
dillerent.
Counsel for the witness may also prefer not to waive signing
Even if the wilnen is bright and articulate, he may make a mistake
i r she reporter may make an error. Even ii the requiremalt ol ugn-
ng as waived, that would not pinhibit the w,tness From following the
formal procedure of reading the transcript, making changes and then
signing Finally, rather than waive the requirement of signing at the
start of the depostimua, counsel and the wisnen may prefer to decide
after they have seen the transcript.
2 C W aIaw Lw/sq—It is generally unnecessary to insist
upon certilication by the reporter that the witness was duly sworn by
him and that she deposition is. trite record of the testimony given.”
Similarly, the requirement of sealing (that as, placing the deposition
in an envelope to be sealed and appropriately labeled) ” will usually
be waived union counsel seeks to lImit circulation of the information
in the deposition.
12 Oi’., p.soi .k u , ,Iaiso. dn i t. w.n 01osib , o ct 01
fadwt,o . . and din at rd ,uil si sowse fr D Daiwna, PaTrIail DiwanIS , Aim
hOST 6)02311511)
Fsø I Qv P 10 (e)
s ew
S I £wFwMQvPSOØ)li)
1 0
-------
6 THE REVIEW OF UT/GA TION
IVu 22 5 19821
PRETRIAL DIXOVERr TOOLS
I ush*g—Ahhough lawyers commonly waive hlsng of the tran-
script with the clerk of the coon,” the language of the rules seems io
require that depositions be filed unless the court orders otherwise ‘
In any event, counsel should ensure that a set of transcripts is avail-
able for the coon when the case reaches trial Unless the court orders
that ransaspts shall not be led,is waiver of the filing requirement
by the ponies would not s so prevent any party from filing the
transaips. I,wIm.i4, e med may elect to file a transcript favorable to
his case if there is some p Lty that the judge or his law clerk may
read the d— oostion for a preliminary view of the case
Rssniuq ( j.sai.. ’ Eatepas F...—As a general matter, the
interrogator should make this “usual” stipulation, doing so may
be dangerous. Generally, aitmerl insist object at ti.pnsit ion ii the
ground for the objection is one that might be remedied as that
ime Thus, bosh nile 32(d)(3)(A) and she usual stipulation would
require counsel to interpose an objection to the form of the question
to allow the interrogator to reword a. The ruk, however, goes fur-
ther than the usual stipulation and requires counsel to object at she
aIi.pia tin to a question which lacks foundation, thus permitting the
interrogator to supply the foundation.’ The usual stipulation does
not require such an objection b’i ” it is not an objection to form,
and, thc ,Joae , kaves the interrogator open to a surprise objection
should he atton .ps so read this portion of the deposition into the rec-
ord at trial. The interrogator can avoid this embarrassing scenario
by refusing to make the omal stipulation. The problem with such
refusal is that his iippswnt may be so accustomed to the usual stipu.
lanon that be will not know which objections to make in us absence
7 . i . T , 1%, Ssçp IS?, i3S DNY hisS)
is. — in .1w F . dor Rube c1O d Ii.... ,J.,e . US F RD 52i. 525 (isO)
( “It .1w mon d IIu 4 I m .d P . s iO(lXi) .... . .y mab inuu be pionç tly bird
“ . ion-- - in r onp.nmio.ins 1w m.ai oI,hecoun thai
. un . on be 1 4 • . - by .hscmon cr iJoriod by p.nm
k, FwR Civ P S(d),30(Q(l)
, 1w f .âon . C inS ( ID Tm.. p 7. isO) rNo pon.uns
be 1wd ths m ib’s c or • by cidor at .1w C cv i i , MD NCR
1 1(0 ( “T), — — be UI c , at she Ccv ii ci he mci she
- ‘ ) ID lii. I I6(.l sh.U be oniad m. c .hci mucid or
pm. .. bin shdh on be strd .ub she Coni
ii he Fs I. Dv P is ( )(A)-(I)
U I M
Such uncertainty may lead him to object unneces sarily and disrupt
the tempo of the questioning
E Thy Ianrivguzci i Frdssuaor, dhtbaclavij bi 4r Drfrcon,t
At the outset of the deposition, the interrogator will usually in.
struct the deponent as (O1IOwI
(I) I am going to ask you some quenions to find out what you
know about the facts giving rise to thi, lawsuit
(2) IIyoudonotheaf.queshofl5ay,oafl , 5 ,, l 1 .. ,..i, j 1
(3) If you do not understand a question, say so and I will it-
—it
(4) If you realize that an esther answer that you gave was in-
accurate or incomplete, say that you want to co , , -t or supplement
your wiser answer, and you will be allowed to do so
(5) If you want to stop to use the rest mom, or to stretch your
kg ., or to get acup of collee or water, or so r nilsct your thoughts,
say so, and you will be permitted to do so.
(6) If you find that you are t.ied or confused and want to take
a short break or even rme for the day, please say so.
(7) If you do not know or do not remember the information
n. cuary to answer a q’ u i . say so
(8) II you answer the quenion. I wifl onume that you have
heard it and understood it and have giom me your ben
recollection
( I you understand the instructions that I have just goess
you?
Some lawyers also instruct the witness that he may indicate that he
wants to consult with lit. attorney and will be permitted to do so.
This can lead to trouble. If the deponent then repeatedly requests to
confer with his lawyer, the interrogator is hardly in a position to
aunp l ain.
Counsd for the witnem may respond to the eighth instruction
above by nosing that the witnen may think he understande a ques-
tion when in fact he does not and thus, the mere fact that the wit ness
answers a question should not be takers as a guarantee that he under-
stood ii. If a controversy arises at snal about the deposition, the in-
terrogator may read these preliminary instructions to the witness and
jury; the above suggested comment may lend aedibility to the wit-
ness who daims that he did not understand the question as the
deposition.
The interrogator should consider omitting some or all of these
-------
28e 7 i R :Yi :w oi UT/cd TION
Ivol 225S lge2J
PRETRiAL DISCO YERr TOOLS
instnjctioos Counad for the witnen probably told him to expect
such instruCtio( at the start of the deposition Fulfilling that proph-
ecy may help pus the wunen at ease—which may not be desirable
Even if such instructions are not gwen, the deponent, particularly if
he is intelligent and sophisticated, wall have difficulty wngghng out
of what he said as his deposition.
F 7 A cinWia . N ’ ’ ale 7 aia rpv Will L Lab
Gatursu, in6ecsioa ,, and gsvnts ate impn.iant so human commu-
nicasiosa, but they do nut appear on a deposition transcript. The
lawyers, tberef . , , mists karat. “sce the tramaip. as she testimony
is given. This owen s is v limig a kiter at it is being
dictated
The miaTopsor ihould finish each question be the witness
starts to answer . Si’u.Iiirly, be should allow the witnow to complete
his ans before asking the omit ___
The interrogator should nut be satisfied with a nod or shake of
the head, bus . kould soils that the witoen answet wish a yes or no.
Is should not be the rqionas rmpnma.bili,y to determine whether a
moumiats of the head i. dicases s or disagreement. Further, the
will nut read as crisply so she jury if the transcript recorde
such node and & . of the head rasher than actual yes or no an-
swers. Similarly, the insatogator should not a rept “LJh-huh,” “Ub-
uh,” or any comparable , onse . It is too easy for she witnes, to
daim la*er that the reporter got it wrong.
Sometimes aen.. that are clear when given in person will lose
their .ning on pper. Saippo.t the uatcriugasor asks the deponent
whether he took ontain action and she wisnai answers , “What do
you ihiii ? ” or “What was I supposed to do?” The witnom may in-
said his and the interrogator may take is, as a strong affirma-
tive, but the transcript will appear eqtuTocal.
Another danges is that the witnen may repeat part of a question
which will appear en the transcript as an answer . For example, the
d 4.iq’ attorney might ask the plainsiff “Didn’t you tell Mr.
Collcran, your superior, that the “ t w all your fault?” The
wiinai may react with swpri...e and reply, “I sold Cofleran that?”
The reporter, hu.. . , may omit the critical question mark (ren a the
transcript. In this situation, ansd for the plaintiff should interrupt
to note that she wisnom bat aass....d with a rising inflection indicat-
289
ing only that he is repeating the gist of the question and reacting
wish surprise
Often, using a negative in the question can kad to an unckar
transcript For eumpk, she transcnps may read
Q You did not complain to Mr Segal about that, as that correct’
A. No
Although the witness probably means that he did not complain, the
literal meaning of has response is just the appusite There are count.
less ways that she question and answer may ow match up on paper,
as these few examples illustrate.
Additionally, she interrogator should be alert io describe (or she
record things which will not otherwise be reflected on the transcript.
Thus, if the witness consuls, a document or someone else an she room,
the interrogator may nose such consultation for the record by slating,
“Let the record show that. . .“ or by asking the witness, “Would
you please identify the document to which you referred in answering
my last question?” On the other hand, the interrogator may pur-
posely wait until the witness has used the same document several
times and then, (or example inquire: “Mr Tate, you have referred
to a pocket calendar three times in the last fifteen minutes. Could
you tell us what information is recorded there and for what purpose
you use is?” The more times a wanton refers to a document, the bet.
ter the interrogator’s chances of obtaining it through discovery H
she interrogator inquires about the document after the fins reference
to it, the deponent may claim that it contains no useful information
and may never again advert to it. In that event, the Interrogator’s
chances of getting a look at the document are significantly reduced
a ftuutr Conuy,ah.., &tusia ale Wa u ‘ Na, C.w.’/
The witnon is free to speak with his lawyer during lunch and
other recesses at the deposition. But is he (roe so consuls privately
with his lawyer aSker the interrogator has asked a question and before
answ it?
Although there appears to be no reported decision on this issue,
several coruts have issued general pretrial mdai prohibiting consul.
tation with counsel while a question is pending.” Such consultation
62 R.bad, tiI d I ML N, I. P (U C I. MN IS. I 2) (pie.
vr. 2) ro she ____ a ‘ i.— , p ng. O
m. w,s said ww ’i, k n P.M.ud Li’ipsis . N. MO( 52-i. at?
-------
2% THE REVIEW OF LITIGATiON
Ivol 225!,
I%2 1
‘desiroys the spontaneity of the deponent’s testimony and detracts
from the effectivena. of the deposition as a truth-finding device Con.
sequendy, even if unwilling to issue an outright prohibition, the
court can usually be persuaded to rule chat first, such consultation
should be permitted only on the initiative of the witness, not the law-
yes-, arid . r.nd , it should not be permitted solely because the witness
does not understand the quomian. lithe wttr.om d n a not understand
the question, he hould say as and pasutit the mienoptor to reframe
as. lithe wnnon uhun.idy tsndesutande she question but still claims
so need the advice of his cosoud, some courts will permit him to
, .nntult privately. How wz , the immogator should note for the rec-
ord that such bat oceuned. Additionally, the interroga-
tor may ‘rsi or mbiog the wisnom whether, by season of what the
lawyer said, hi. ai e om di&. ..i from what it otherwise would
have bom, whether what the law - said helped him answer, or
whiber hi woraej painted sit any hawth in the original qua-
s . Such follow-up qi ion . will oAen ha met with an instruction
not to ans hosed en the aftorney-diesit privilege. Mihosigh the
answs to such questions e iigi , a re not likely to be helpful,
imply a. ng them may omen su cicns dwe &ii to the wilnon
and hi cos that they will L . .nlenatj or seduce the frequency ci,
___
H Rmariã Ast ’n -ij i Ws s m l ’ !iusiq
If the deposition will has several boon or days the interrogator
may r iii l the wit periodically of the instructions given at the
stars of the deposition. He 4”uld be omsiuve to comments by the
witnan which, although not en intended as ihc time, may later be
used ewfrnr . that the wetems was o ly hind at the “position
arid as gave errotioixass harmful omimony. As be prepares to answer
a question, the witness will innistimea gratuitously remark, “Gee, this
1. hard wark or “I dido’s realize that this would be so tiring” or ‘I’m
really omifused now.” The intwopsor should not let such corn-
ments pon Instead, he should remind she witnan that if he ii too
tired to puiosad , he . hnuld y en that if he nenk a break, he should
for ss and that the interrogator dos not want him to give tent-
PRETRIAL OI . VoVERv 7VOLS
mony which he will later disclaim on the ground that he was too
tired or confused The attorney should then Inquire whether the wit
nest feels fit to conuifluC and, if the answer is affirmative, instruct he
witness that he should inform the interrogator .1 at any point he
warns to take a short break or to recem lot the day
Some Interrogators will ask the deponent every few hours
whether he wants to correct or supplement any of his earlier answets
This practice may later be useful in convincing the jury that the dep-
osition procedure was lair and that the wstnon should not be permit-
ted to renege on his deposition answers. The danger of uivtttng such
correc1.op is that the witness having been alerted at a lunch break
to harmful testimony given that morning, wall accept the nvitat n
and modify his earlier testimony to take the sung out of it.
L &r r ai .ti,j ( udsiLny Tfsniusn.j
To be useful at trial, the deposition testimony must be reasonably
encapsulated. The judge and jury may have difficulty following and
become Impatient with counsel reading long passages extending over
many pages. Consequently, the interrogator should recapitulate or
summarize the deponent’s testimony, particularly if the witness ha,
gi contradictory testimony over several pages (i,, first denying
that he attended a meeting and then recalling that he did, tint
claiming to be unsure whether. certain topic was discussed and then
laying that it war, and so on). The interrogator may want to ask
So that we have is straight isa one place, is ii ccen , that you did
attend the meeting of November 19, 1982. in Mr Wellington’s of-
Eke, that the meeting lasted shout 4S minutes, that Mr Wellington
was present during the enlist m vi that Mr Simon p ont the
meeting 15 minutes after as started arid w then prescm until the
aid, and chat the subjects discusicd while all three of you were
present as the messing included A and B’
Opposing counsel will sometimes object to the inten ’op lor’s el
forts so summarize prior testimony an the ground that the question is
lepetitive, leading, or not a (lit summary. But if the recapitulation is
in fact a fair summary of the deposition testimony, the opposing at-
torney usually will allow the watnen to answer
/ Thr W,tw., $ Kmaj—or .wei tom—T.. bith
(14 D.N . ? 2. unt — ‘ ‘ . ) — u, ), Li A i no.ft ,-
tosd I (74 1. 1, st$ ( 1DM C Is, lent) (1ni pnuist iid r) (austs,
The interrogator may discover that the witness is not knowledge-
-------
292 E REVIEW OF UTICA TION
(Vol 22 5 19821
PRETRIAL DFXO VERY 7VOLS 293
able about many of the subjects of planned questions In this situa-
IKIn, the irnerrogator should obtain a dear statement of the limited
scope of the witness’ knowledge without disclosing his entire sCript of
questions (which could be used by his opponent to prepare more in-
funned wiin. ’ dqi.o..nosis). Thin, the interrogator may ask
only that the witnen desalba a general terms his knowledge of the
underlying facts or be may pems further and ask the witness to con-
firm that he know, about subject A, but not about subjects B
through K. Requesting aish conflrmas’”’i nails things down, but
also provides opp ’sg arwisel with a useful checklist of topica in
which the interrogator has no inserno. Even if the knowledge of the
witnem I y limited, he may be able to identify other pomible wit-
n ou The niaTogasor may ask she witness to identify those parties
who po.en the knowledge so . quP in the witneas could not.
In ou””””g his qi n. ing , she lntaicgalor should consider the
pibil ty that a generally kssowL tlge.bL witnen will claim not to
recall the information n vy to as er a question. The interroga-
tor should “i ’ whether such an amseer wauld be helpful or harm-
lid to his ome. Va . it mg4e , the interrogator may find helpful a
claim by the witnen oat to , .In.lIRbar what w said at a meeting
berwans himself and she inseruvgaso?s client. Having so testified, the
witness not in m w 1 ’ ofa position to deny at trial the version of the
meetsog given by the interrogator’s dma .. Again, the interrogator
must decide whether to pains in nailing down this claimed lack of
knowledge . He may mb “Do you have any recollection at all of
what was .aidr ( go further “DO you recall if subject A was di i-
crid at that m i’ig? ” further yet: “Do you deny that subject
A was dI” ’? ” ( finally: “Do you deny that Mr. Hoyk said to
you as that meeting (whatever he said) or do you just not recall?” If
the interrogator seeks an amwer so the effect that she witnon does
not recall, he may want so end his quest’ ” by specifically suggesting
that opi’nn so the witnon in a slightly more emphatic tone of voice.
Note that the 1 su nted quesI in the eirrmj9e above code with
she worth,’. . . or do you just not recall?” Having heard that op-
tion last, the witnon may find it the most attractive
In quonic”ig the wito about his , e’o t iecs ion of such a meet.
lag, the insa ogasor may ask only the firs. suggested ques-
tion. and Mi other be will psub all the way. This a result-
oriented uw i and she interrogator’s deci.i’ ” will be judged by the
be seossom . lithe interrogator dr’ that an aaswer claim-
ing lack of knowledge would damage his case, he should structure his
questioning to avoid that answer Once given, such an answer is not
likely to be withdrawn, no matter how effective the subsequent ques-
tioning Consider a personal injury case in which the defendant has
raised the defense of and carrier the burden of proolon the statute of
limitations Asiume that counsel for the defendant plans to depose
the p&amtill’s treating physician to show that, contrary to the plain.
till’s contention, the physician told the plaintiff during the period of
limitations that his rare heniasologic disorders were probably due to
caposure to certain toasc fumes generated by the defendant. The
doctor may be the on 1 y one who can testify that the plaintiff was so
advised; without such testimony, the statute of limitations d’fcnse
will be substantially weakened and ponibly destroyed. Anticipating
that the plaintifs pbyouian bay be inclined to say that he does not
recall whether he so advised the plaintiff, the defendant’s attorney
may mb preliminary questions designed so elicit answers , the inidlec-
tual force of which may cause the doctor to discard his original incli-
nation to claim not to r”nember . Thus, before posing the key
question, the interrogator may ask:
When you onpect the cause ofa p ...i,’s problem, do you gen-
erally advue the patient of your view so that be might take step to
avesd the cause?
Was there any ica not to advise plaintiff of your view to
the probable cause of his condition?
Did plaintiff ever complain to you or threaten to sue you for
withholding information hum him?
The interrogator might also show the doctor his own re d . contain-
ing statements about the suspected cause of the problem. If the doc-
tor answers such introductory quiusio.s . as “ipected, he may then be
unwilling to make the implausible statement that although he sus-
pected the caine of the plaintill’s m.la 1 he casinos recall whether
he informed the plaintiff of his suspicion On the other hand, if she
doctor answers these preliminary questions in a noncommittal way,
he probably will maintain that he does not recall when asked the key
question. At this point, the interrogator may remind the doctor that
to say that he does no. remember when he does is a violation of the
oath. On the other hand, such a reminder may only provoke the
witness and make him more defensive than forthcoming.
A particularly difficult problem for the interrogator is the witnem
who was deeply involved in the underlying facts some years ago but
-------
294 THE REYIEW OF UTICA TION
IVol 22 9B2I
PRETRML DIXOVERY TOOLS
who claims that, because of the pmeage of time, he us unable to give
ubstantive answers 10 most questions without refreshing his recollec.
sian by seading many documents and talking to othe,a who were in-
vol Such a witnem may claim, for example, not to recall
prea sing a memorandum sa n out over his name and not so remem-
bee wbet the pti ..wandi.sa accuraidy reflected his views at the
time, e though he will ant .o so far as to deny that he prepared
and sans u. Unlihe the typical witness who say. that he cannot re-
m... ,her this witasa h an naiad him..If out as a possible trial wit-
— He h “d that rcvi ..g many documents and talking to
others might refr his tisa. The interrogator has no idea
what this wia will my as triaL
The alar”ga”nr is thus wish two rlsoires Pint, he can
ash she wisnus so aia&m dint he would so tanify with respect to
cach of the major pica she Usiga’ The interrogator might
thus . di , . ‘t ilos and advise Alppo.ing counsel that he will
object so any e sp hc s im w y by she wisnan at trial unlus
ad J r- dy advance of trial so that he may resume the
. dqn
Secend, the interrogator can attempt to refrb the recollection of
the wiinan He night begin with mob of the more imponarn ducts-
• chrwIng ral order and the witnan whether he recalls
sanding or recerving is, duit .. i ,g its consents before it w sent or
aher is w , eois d, espi mg agie ..ent or disagreement with it,
and taking acno . a mails of the document. He might also pars.
pheuse icr the 4 pu--uis she was sa by other witnesses about the
hey underlying eemss and ask whether that helps him to recall If
the wisnan’ iev”Il’ ma is . J i.Led by such questioning, she interro-
psot nay “ bsnin usdW information b.ir, i.e she witnon presumably
has an “‘d she underlying events wish hi own lawyer in much
detaiL If the wisnan’ e” Iectson is not refreshed by the interroga-
or’s reviaru, . of the aIllt,im..lts and other testimony, the Jury may not
bdiew a dais . that tqion further review of the documents, is &
bash so bin.
I
Onus she interrogator will happily allow the deponent to talk.
Giem enough type, the witnus may hang himvelf . On the other
hand, the Interrogator who seeks admissions may be frustrated by a
verbose, argumentative wuinets Consider this exchange
Q Did you ever complain to the defendant thai its pricing polu.
c were unfair’
A. Knowing the defendant’s unsavory reputation and the vmd,c.
tive temperament of its management, we decided that corn-
plaining would only provoke it to take lunher action to crush
S..
Q Dud you attend the menuig of December 54, l%2’
A. We were trying to deal with a cancer, that us, defendant’s ilk-
p1 business practices, and we met on that day to n,w the
limited options opal to us
The interrogator cannot read such deposition segments to the jury
What should he do? Fins, she interrogator should move to sinke the
answer insofar as it is unresponsive so the question. If the witness
should later became unav’iiable, she interrogator’s opponent may at-
temp. to read such testimony into the reco.d at trial.at
How does she interrogator make the witness give direct factual
responses? If the witnus were to give argumentative testimony at
trial, the judge would undoubtedly reprimand him and the jury
would soon become impatient if he persisted. But she interrogator
may be justifiably reluctant to raise thus kind of problem with the
court at the discovery stage, particularly where she answer includes
the information requested. Judges do not enjoy becoming embroiled
in she parties’ pretrial squabbling, especially when asked not just to
rule on the propriety of a specthc question, but to peruse a transcript
to determine whether the witness . hnuld be directed to give more
responsive answers.
However, using the force of his own personality and manner, the
interrogator may gain control o ’ the witness Par example, he may
say:
Please lines, carefully to the next question You will thai it
can faidy be ann.ued yes or so or that you don’t remember
Please a r it that way.
Of course, counsel for the witnus will not likely sit bach and allow
the interrogator so instruct the witness. He may object to such in-
unictions, nose that she question has been answered, and request
that the interrogator ask his neat quenian.
If the witness remains quarrelsome, the interrogator may say
a,
-------
296 E REVIEW OF UT/CATION
Ivol 22
Mr Briton, I am asking you quotusons to karn certain (acts
Please answer those qucu u directly L ate it to your lawyer to
whasever wappi.im..uital qucemos he believes should be put to
you and, as the ap .,,,. ,ase time, sa make whatever arguments
.o’d be advanced. Now, listen carefully to the next question,
and i will me that it ma be aam. l fiifly by giving a date or by
saying that you do act know or P har Please asuwer it that
way.
The interrogator should then thaipmI it the next several questions to
cell for pleciuL, km.tiid M iowicn. If she witness peraists in giving
r iuliiisig atgummisa j, ai . .. , Sb. Intmogator may make one
ImuUsssshasw,saksab,e iilihe,,. Iwouldadico,uodfo she
wins. so ma with kim duslog she break to advise him of his
ditty so . ‘-s 1 me deatly without makeig If the
wssaen so — she kind of aniwe,,, , I intend so seth
the aid of she coat.
( ‘ ‘- ‘ eni with she notion that the intereogasor . hould not take a
pn.isinn and then sessent hum is, the attorney should not make this
thiens u Lne be plans to at on it iwivld the witness r am obdu-
rate. If the wisn still refuass to give directly rmpaauave answe.. ,
she atwngni may apgl$ ) so the ju e who, though annoyed, may
home a Fooral kniructicis that the portia ‘ iould pro ed in good
6Mb and that the wIs should do his bat to be lm,,n.nsive. With
moss wisiti ss . sum nash a tepid direction will be adequate to car-
sect she __
L 7 i N # ik, M i ( Jd’jiame M. n,u risj,
Somaibe. the A.p ..ent will try to guess the intcrmga.or’s objec-
tive and give odde wish the objective. The interrogator
should ruptind by strasegicelly structuring hi questions and in-
Bating hi vane so disguise hi objective. The interrogator may even
be able to make she think that his objective is the opposite
of what is racily I. For If-lpie ‘ppo.e she plaintiff ailegre that
the ahdiitdon , engaged in ps’edasosy piiaing in vldaiinqi of the anti-
testis lava by sestlig sat puce below a age variable cost in an at-
tampi to — p--Ii. the mashes. C ounsel the defendant may
know from hi own sapat’s analysis of a ’ceunting that the
di ’&wA,ii ’p price could ant be Found to be below average variable
cat if is bad been at fifteen peru .t higher. Suppo..e the defendant’s
counsel wants so atabiMb that eva if the defendant’s price was be-
1982J PRETRIAL DISCOVERY 7VOLS
low cost, such pncang had no Impact upon the plaintiff H the de-
(endans’s counsel senses that the plaintiff is shaping his answers to
defeat the Interrogator’s perceived objectives, he may word his ques-
tion this way
You would agrer, would you not, that a(dekndant’s price were
lilicen percent higher dunng the years us question, your company
would have received a lot more business’
lithe witness is fighting the apparent thrust of the question, he may
deny that a fifteen pe xnt price increase would have resulted in
much additional business. The interrogator may then ask.
Are you trying to idl me that even ii defendant’s price had been
fifteen percent higher, your company would not have received any
additional bmae&
If the deponent again fights the question by saying that he would
have received no additional business even with that increase, he may
have great ditbcuhy establishing at trial that he suffered damages—
even if the defendant’s prier was below cost. In short, the deponent
who fights the interrogator instead of simply answering the questions
truthfully may find that he has crippled his own case.
Al Thy Lawys, J £ ,: Ti. Ade h
Sometimes the witness’ counsel will disrupt the interrogator’s ex-
amination by mterjecting comments after difficult questions before
the witness start, to answer. Few comments are more infuriating to
the interrogator than “If you know” or “ii you remember.” Predict-
ably, such comments ale almost invariably followed by an answer
that the witness does not know or remember.
These comments ate rarely justified although the witness’ counsel
will realixe on occasion that the witness has slipped into she school
ex ni ion mode of answering questions, that is, guessing when he
does not know the answer in the hope that he will reenve extra
points if he is right.
The interrogator should not tolerate such remarks. As in dealing
with the witness who talks too much, the interrogator may stop such
prompting by saytng
As I told the witness at the start od’ihe lipi..tiosi, if he does not
know or remember the answer to a qunsuss, he should say in.
That instruction applies to every 9 ueuion in thu deposition I
would ask counsd not so interrupt the examination with such com•
masts in the lutute lithat practice p ..dts , I astute you that I will
room this deposition and apply to the court for relief
297
-------
THE REViEW OF UT1C4 nON
Ivol 22S i 19821
PRETR/41 DISCOVERY TOOLS 299
In she face of this kind of threat, the witness’ counsel will usually
terminate or severely restrict his use of these comments since a judge
would be Ii&dy to Crown upon them
More difficult problems may arise From comments in which the
witness’ counsel purports so be s sng dan6catson of the question
For wnple ‘i you mess bSie ober 13. 1982. or at any
time’” or “Do you mean bruIt . what be told you an hour ago when
he said . .r Speaking 4 ”o.ss . such as. “Objection on the
ground that it is not clear whether the witness is being asked
the same probl.”uw Again , she sntereogasor may reprimand
opposing counsel and give annhI .r stun warning. But opposing
counsel knows that the inlerropior will heeitate to trouble the court
wish this sort of ihji.rfats. ogi.uaany lace she judge would probably
have to send a good portion of the depnsiiios to determine whether
the interrogator b a logisimase grievance. Nonethemes. at some
p U . the intwiigai will conclude ihas sack remarks have bemme
so ounuive at so inssr , with his right to wnuie she witness At
this point . in iss of his iel” t. be should apply to the court.
N 7 N lVb A 7v
Sometimee the 4 i’p ..i.uis may say that he could answer a question
if gives some time. This is on Iu.coinIvi i when the answer invelves
in.i asirnl ICI.II . made in connection with a damage daim
The msaTogatw aKnuld ash how much time the deponent would
need so make suck rnk’i”ion . If the time is on too long, the inter-
rogator may give the d.pna .uit the time n ry to make his corn-
putatieon. Likewisej the lawyer may be satisfied with a detailed
detaiptien by the witnes of the enact procedure to follow in making
the 1 c ’ 1 ’ i The insoriopsor can fill in the blanks for himself
beer.
Counsel the witnes may instruct him on to make the detailed
colculatlom equsssc’ t by the intuvogatos he may fairly contend
that the witnes should on be requited to perform such work in the
promirised esvl,onma s of the 4”position, and state that the infor-
mation will be provided later. Otherwise the witnon may make a
m..i frp in h n1. nhiiions which will come back to haunt him. The
insemgasiir is on likely so prom the point by seeking a ruling hum
the court, psrsiaalarly if c,pos.ng counsel has promised to provide
the information later Moreover, the court is not likely to require
that such calculations be made immediately at the deposition
O Comg OJthr Record
ft. a matter of practice, ii any lawyer at the deposition asks to go
off tbe record, the reporter will slop recording The transcript should
show that an off-the-record colloquy occurred at that point. If, how-
ever, another lawyer says that he wants to slay on the record, the
reporter will continue to record the proceedings” Tactically, the at-
torney asking to go off the record should inquire whether there is any
objection If no one objects, opposing counsel cannot complain later
that the lawyer went off the record to disrupt the questioning of the
witness on a critical point.
The reporter should on honor a request by the witnon to go off
the record unless an attorney endones that request and no one ob-
jects. Sometimes the witnes will make such a request and be embar-
rassed to discover later that the reporter has recorded his
comments.”
Counsel for the witnes should eaplain to him that nothing is re-
ally off the record Even if everyone agr to go off the record, one
of the lawyers may later ask the witne, to confirm on the remrd
whatever he said off the s rd.
F voq md Eivdiq Tiav, d &ads
Typically, the ‘I.position will Mail at 10-00 e.m. and nan to tOO
or 300 p.m. with an hour for lunch and a break or two of five to tea
minutes each r’ on . However, the uuerrogaeor may be wise to des-
ignate a 00 or 9-30 e.m. starting time The lawyer for the witness
may not object when he receives the notice but may nut short of
preparation time if his witness arnvcr late on the morning of the
drpo tion.
There i . usually not much advantage to working without breaks
or lunch. The lawyer For the witnom should be particularly cautious
about agreeing to do so since the deponent may tire and make mis-
takes Even ii the witness insists that he leek fine, his attorney should
64 . 0 H*vooce 6 D Has. in, 5I. 3 3
es c t. sd wub vd h uoiy .1. wwuin w6s —. — s
ve. i d ibs . ths mid d i8 sit din. ii
i . u duhq ’ 1 . . ..n . iJwlly ._ 4.d s — —— . d is uid i , wu. in
si wud . ud — - - _______
-------
77 /if REVIEW OF UTICA T1ON
IVol 2255
ultimately make his own decision on such mailers The same caveat
applies to continuing the deposition much past 5-00 p m Tired wit-
nones make mistakes. Counsd lot the witness should oppose working
put that time unIon the other lawyers make a commitment or at
least a strong affinuative reat q, that they expect to finish by 700
or 8.00 p.m.
Q P”— . b
Normally she inseno 1 pior will are seveal to the opposing party
that he believes the witnon hat just given a helpful admission. JIhe
dam react, the witnam may miidil’ 1 his answer or his lawyer may try
to repair she damage by athisig the witnon whethot he understood
the quen . Cnni*q iendy , she IntaTogator should not pause, grin,
pam a note son colleague or his diern, announce that it is lime to
take a bienk, or uk the . qian - to read back the aaswe . He may
switch son diC..4 subject to reduce she risk that the deponent will
withdraw or iu idify his as . , but be should do at naturally and
continue so question at she same pace and with the same ione of
voice. If he is ‘ akin noire while questioning the witness, the interro-
gator should do at at an even pace at that he does not inadvertently
igual so his pp-—- ’ , those acm . . . he eaisidrs’s important.
ivnsd r the witnat should not ci n wIe so the inter-
su’pt ’ that a point has beat scuaeJ sgi n.t him. He should not
poon, imace, teme up or change his position on sesskmern at the
neat bseak. He may ‘ ‘ interrupting to inquire whether the
di .poneni uadsntood that she intarogasor was asking , for instance,
what color the light w 6w him, not for she other driver. The dan.
got in imanipsing is that she witnea may renthrm his harmful sasi.
ony, making ite more sh ult to . “p t .in at triaL Additionally,
the interrogator will probably object strenuously so such an Insemip-
sion nod may even riliroplain to the court. Notwithstanding these
nishi, counsel for she witsion may decide that she inturupsion is nec-
a.y to gst the i & w y ssraigh .
Perhapo the most dillicuft time for the witnat’ cosutsd is when he
r..I .i . that the interrogator I dose so hitting paydirt. He should
avoid dafnsisive antics (moving so the horn of his chair, objecting on
liney h es . quarreling with the question, and the like), which the
interrogator will interpret at in. ning that he is on so something. A
ed yawn or a humorous aside mote likely so lead the mterroga-
1982) PRETRIAL D/SVOVERV 7VOI
br o 1 the track. Occasionally, counsel for she wuness may try to put
down a False scent by seeming concerned and protective in response
to questions that he knows will he unproductive
R xnsxü aw lhawmp
As with the rest of his questioning, the interrogator using a docu-
ment should know his objectives. In determining three objectives,
the interrogator mint consider whether the courts pretrial proce-
dures require identification and exchange of inal exhibiu.’ If the
court so requires, the interrogator cannot expect to surprise the wit-
non at trial, even with a document not marked as an exhibit at
1 ’p o sition.
If the interrogator intende to show she document to the witnam,
the stenographer should mark is at an exhibit just before the lawyer
banish the document to the wimat.’ The interrogator can save time
by marking the exhibit in advance c t the deposition and then in.
tinseling the stenographer to add his initials at the posation.
Where numerous documents are expected to be marked at ‘ irpos.-
tIns, she attorney should “ n 4rr how best to number them.
Rasher than using initials (“Exhibit P1” or “D3’) or the name of she
deponatt (“Exhibit IC ida1l 5”), the interrogator may stan with
“ F Itibit I” as his first deposition and number the rxhithiss ou u-
lively through all the d’positions (so that if F hibit 8 is the last
number of the first witness’ deposition, Exhibit 9 wiU be the first
number of the next one). This approach eliminates confusion since
only one exhibit will bear, for example, the number 8. In preparing
his pretrial memorandum, the interrogator can give F tIiihits I
through 463, at marked at depositions, the tune numbers for trial If
there are 100 exhibits that he will not use, he can just drop those
numbers. If there ate additional document, to be marked fur trial,
he can start at Exhibit 464. Meanwhile, oppu.ing counsel may use
the same system by starting at Exhibit 1001 or 2001.
An important advantage of ibis approach is that if the lawyer
reads into the record at trial she witnon’ deposition testimony about
what has been marked Exhibit 296 for trial, he will not encounter the
at . Fsi I a , p is. s . ,,, “--i- — d by
is l nile ED Pa I 2t(c)( ) id)(i)(.)
61 .ir Pin ft v P * 51(i)
-------
O2 E REVIEW OF LIT/CA TION
IVol 2 255 I 2 l
PRETRIAL 0/SCOrER V Tools
problem of repeatedly explaining that the document was marked Ex-
lubis 221 at deposition
Using the name of she witness in marking exhibits may be confus-
ing. Suppose a key question in the care is whether Mr Greenberg
saw a certain document marked “Exhibit Greenberg 3” Even if Mr
Greenberg drnies that he ever saw the document, the jury may mi t-
takenly condude that since it marked “Exhibit Greenberg 3,” Mr
Greenberg mint have bad minaiiiing to do wish it.
In cares with multiple the parties may use a system of
labeling the kii i with the name of the party marking it (rg,
3”). ThI system may also confuse the jury since it
ptare , a porticular &.ta 5 .aq ’ name on a document with which that
party may have no In a iasoss, counsel for a particular
may h amie so mark exhibits in this manner fear that
putting his dies.t’I name on many Ai u ,. 1 may give the name
peater prmwi?.Lr, before she jwy.
— the intamptor may gmseauy choose his own system
of marking ‘ ppontig “ ounsti should be alert to object to
osta so ‘ ‘ , by the numbering system, documents which art
not obdausly telated to one “ ‘tosber . For mainpie , in a suit alleging
w ,vnglW ter” ’ —’sim of employmont, counsel the employee may
mark Pi 1 , 7A an internal inmvw ii4. .m from the defendant’s
, reporting that the employee will be . } mt From work fur
three in.b for my duty and ar h bit 7B, rather than Exhibit 8,
the employer’s laster of er nnti to the employee, thereby tug.
gneing that F kii 1 7B war snot as a reruk of the information con-
in Fi ,hi 5 7A ,
The intavopior should have av.ilab$r rnpiea of cads exhibit
all counsel and she wi” '. The “p’ tiom will move much laster if
those have been made in advance of the d.p i..ition.
To . im l Ie any potential proof prot4ems as trial, the interroga-
tor will generally ark the iLpu _ u so . .iiihmu.icaie the exhibit by
staiingshatdiswhasupurporsstobe(ij , akstcreoMr.Kahn)
and that it war mailed or snot on or about the date it bcanm As
same documents, the interrogator may seek nothing more than
lithe Interrogator must establish that ihe document was sent and
received, he might show the exhibit to the witncu before quesi ionsng
him about it Suppose that the inserrogatois client has a tile copy of
a letter sent by one of his employees (since deceased) to the deponent,
that it would be helpful to the interrogator’s case to show that the
letter was in fact received by the deponent, and that the kiter was
no’ included in the opposing party’s document production lf before
showing the copy of she kiter to the deponent the interrogator asks
whether any such kiter was r ived, she deponent may say no,
either because that is his recollection or because he is dishonest and
believes that the interrogator cannot prove that the kiter was rent
He may siand by this answer even when shown the ide copy of the
kiter Ii he does, the interrogator may be unable to prove at trial
that she document was received. On the other hand, if the interro-
gator first show, the document to the witness and then asks whether
he received it, the witness will be more likely so answer affirmatively,
esther because he recalls the kiter, because he thinks that he must
have received it, or because he thinks that a he would be
Unconvincing
lithe interrogator’s objective is discovery, documents ase fertile
sources (or questions. If the document war sent out over she name of
the deponent, the interrogator may ask: who actually drafted it.
from whom the information contained therein was obtained, how
many draft, were prepared, where those drafts are now, who re-
viewed the document before it was sent out, to whom copies were
sent, whether anyone who received a copy expressed agreement or
disagreement wish its contents, and what reply, oral or wntten, was
made to the document. If the deponent received she document, the
interrogator may ask: what response he made to the document or, if
none, why not, whether the deponent drafted a response (even if not
sent), to whom he showed the document, who was consulted concern-
ing its contents, and what action, if any, the deponent took in re-
sponse to the information set forth in the document
Often the interrog ator will question the witness about the info,-
mation in a document without showing she document so him or even
indicating that he has a document The attorney may include some
of the exact worth of the document in his question. For example, if
the deponent prepared an internal memorandum dated January 22,
1982, she interrogator might ask, “As of January, 1962, wasn’t it true
that jadd worth of mcmor.ndumj?” The advantage of stung the ex-
— • $ __ r.L _ d .n . ds jm t
- . its ,m isP $IZ(I 5fl),p—$--. .wi&
W .. h $i, *..at 55 5 (lP
te. PLI arl ( 5)
-------
304 THE REY/EW OF LI//CATION
IVul 2 255
xci words of the deponent’s memorandum in the quc i.i,n us that
should the d deny that those were the Fact, unJduius,-y 1q82,
he cannot later reconcile the apparent Contraduct on the basis of
some small but supposedly significarn difference between the word.
ing of the menIora , d ,jm and that of the question The interrog to.
may use the same technique by taking language from pkadung ,:r -
spOuses so requests admissions, answers tointcrruga,orie, liled on
behalf of the drponen , and judicial decision,.
Where the dspoti that she facts in January, 1q82, were
at suggest. by the insesengator, how should the attorney use the
document? The answ - p-ds on his objective, If he seek, adniis.
sions, the uuumo stor may mask the document as an exhibit, con-
(runs the witness, and ask hiss toomJjm that it says what is says and
that the deponent accurately stated she (acts when he prepared it it
this same sccnatio I rcpeated_, the deponent may become gun-thy
and hesitate so deny (wilier requested admissions. The interrogator
may push (wiha and seek athnluons on mallen not conlirined in
the documasi For examplej i(he bat another memorandum dated
(ktober 13, 1982, psepam by the deponent, she attorney may, with-
out mart ing the docurn 5 isi at an exhibit orprexontuig it to the wit.
nun, M, NA. of October, 1962 wasn’t ‘5 true that . . . ?“ The
imarogasor may condude this question with various facts stated in
she memos’andu, , He may then complete she question with a (act
he bsliev so be true, e though not specthcally stated in that
memorandum. In response, the deponent may confirm that the fact
true, fearing that she interrogator has a document authored by she
deponent which contains the specilic Information as issue
On she other hand, if the irnauip ’, objective isto destroy she
credibility of the deponent, he will probably not confront the witness
wish documena contradic,i,ig lus testimony at she deposition pro-
. Indeed, confronting the witness with each contradiction at it
occun may prompt him so give more truthful amwer,_ a desira-
ble deveIopmes , if she intenogalse wants to attack the deponent’s
credibility at trial.
Afier completing his basic e*aW of such a wit nest, the in-
tarugeto, may be tempted to confront the witness at she deposit. 0
with the various document, contradicting his story, particularly
where she court’s procedures require a pretrial exchange of trial ex-
hibits The disadvantage of doing so is that the wisnem is provided
wish a practice round as harmoosting the contradiction,. The inter-
l982J PRETRIAL DIScOvERr 1VOIS
305
rogator may accept this disadvantage ii be senses that he is more
likely to obtain helpful testimony at the deposition than if he
postpones his questions until trial Even if the wittiest is unaware of
the contradictions, the interrogator must assume that opposing coun-
sel will alert the witnes, before tnal The interrogator muss rely
more on intuition than logic in making this judgment.
Sometimes the interrogator will ask she witnn, to make a draw-
ing or diagram Often opposing counsel will not object to such a
request The witness may testify more clearly and quickly with such
a drawing available for reference. If, however, counsel (or the wit-
tiest is doubtful about the wittiest’ ability to make a reasonably accu-
rate drawing, he should instruct the deponent not to comply with the
interrogator’s request. A significant error or omission in she drawing
may return to haunt the deponent. In some instances, the interroga-
tor will have available a prepared drawing. If the witness can coo-
firm that the drawing is accurate aemrding to his recollection, the
interrogator should be permitted to use it and to ask the witnen to
mark the drawing (tg., showing where he fell).
Finally, the deponent will sometimes mention a document, and
the interrogator will request its production. Oflen counsel for the
witness will answer that he will consider the request and the matter
ende there because the document is never produc,rtl and the intern)-
gasor forgets that he requested it. To ensure that he obtains the doc-
ument, the interrogator should make a note to conlirm his oral
request with a formal written one.
As noted above, counsel must object at the deposition if the
ground for the objection is one that might be removed if made at
that time ‘° Otherwise, counsel may not interpose she objection at
trial if another party seeks to use the transcnpt.” When in doubt,
prudent counsel should make the objection. On she other hand,
counsel gains little by making an objection as the d’position which
he may save umil trial frg, an objection on pounde of relevance),
and may only prolong the deposition.
Should the lawyer making the objection state his grounth’ In
light of the underlying rationale of nile 32(d)(3)(A), as well the
.IiVsoRQv P Thdfl3),a , x aum, .r—y 5 5SS 50
II . Fin L Qs ’P fl( p)
-------
7WE REVIEW OF UT/CATION
(Vol 2255 19621
PRETRiAL D/SCOVLRY TOOLS
general preference for requiring that grounth be stated,” tic would
be wise to do mat least in a general way (rg, “Objection, form’). II
the interrogator requests a statement of the grounds, it should be
given if the objection may be cured at that time by the interrogator.
If the objection r ”n be cured, the attorney need not state the
grounds. Again , In this ãuagion objecting at the deposition is unnec-
maryin the rst pI a
Even aftes hmel.g the Qbtjertaiain and the grounds, the SntaToga-
tar may i — ’ a—i ..& ’.4 with the question and decline to rephrase it
or take oi oniective a.i’.i— He must balance the risk of not being
able to me that qia .n and at trial against the danger that
ie .diu.g the qunslom will mmd to a ha useful answe, . Addition-
ally, the peon of his spiomlomiog may be badly disrupted .1 he at-
‘ npss toaI . . e y pica atia objection.
The —mi’s law er dwndd avasd the temptation to object too
omen Ii is true that bequesit ohj&iian may distract she interniga.
tor and adwrad affect the quality of his questioning, but such oh-
jectios. may have an even werse imp ri on the deponent Every
obj a-d bomb the concentration of the deponent whose focus is
properly on she qunsion. Too many objections may undermine the
witnom’ — he begisia to fear that the questions must con-
tain k 4 .i trip, which he it missing Such objections often lead to
bickering . ‘ osig onstuel which may unnerve the witness further.
Thus, eme if a qi .’asi I tarkii fly obji . m
way, ‘ mned she dqionent may dr so remain silent, or to
make his o1tjmr. ..i unobtrusively, and allow the deponent to answer .
The A.p it will pin conidence he deah with such questions.
A lirp..aaqt who h tonthed many times may be given very free
rein. If the isitG .I ..gatnr concludes that the deponent will be an effec-
tive witnom as trial, this condimon will affect hi view of the settle-
ment value of the eme
Finally, she A p eeni may w io.naily aa before hi, lawyer
ha a ‘ I ’— ” . to iaiap .u.e an objection. In that event, the attorney
should state hi objection, mow so strike the answer , and state for the
. ...d that the Arp .ent aam. J so qeiickly that a more timely
objac.i w not
71 . m ft &v S 5’l
T Iiugradjaa, NN o 4*swv,’
There is often a good deal of gamesmanship in giving and testing
an instruction not to answer, particularly in the first few depositions
of a case in which many depositions will be taken If the instruction
is raised with the cowl,” the prevailing party gains an edge lithe
court orders the deponent to answer, counsel for the deponent may
be reluctant to give another such instruction He will not want to
give the court an early impression that he is attempting to obstruct
discovery. On the other hand, if the court sustains the instruction,
the interrogator may hesitate to prem subsequent uutnictions with
the court He will not want the court to think that he does not know
the proper scope of discovery or how to ask a question.
Ar a prerequisite to seeking a ruling from the court, the interroga-
tor should have a clearly worded instruction no. to answer on the
record. The witness will follow such an instruction from hi, own at-
torney but not from other anunsel” Often counsel for the witness
ii ill avoid giving an instruction not to answer. Instead, he may ask
clarification or narrowing of the question Alternatively, he may
make a speaking objection, following which the witness may say
nothing. lithe interrogator proreeds to his next question, the tran-
script may appear as ii he abandoned the original question He
should ask opposing counsel whether he is instructing the witness not
to answer and make certain that the response is clear on the record
Opposing counsel may occasionally sidestep she interrogator’s ques-
tion to him and say that he is instructing the wunon not to answer
the question “ in that form,” while adding that he would allow the
witness to answer a proper question The interrogator must then de-
ode whether to rephrase she question to eliminate opposing counsel’s
objection and accompanying uurnact.on not to answer Although
the interrogator may decide that the quenson u proper in its original
form and refuse so m..ord it, more often, he will reframe the ques-
tion Sometimes, regardlen of h. phrasing of the question, the inter-
rogator will be met with an objection “as to form” and an instruction
not so answer. He may try she question several ways so that the
record will show that, in spite of oppon”ng counsel’s characterization,
71 . Fin a c p (.fl2)
74 U iha wai plupail b 7 s d she paivo and to ha
fr,anJ w,sh that paii,. he di w toha . ,..... .i.4 b that pafly l.wpei at
iha tp -’.l ” . d wsl than I ai ha
-------
771E REVIEW OF UT/CA TION
IVol 22SS 19821
PRETRIAL DISCOVERY 700LS
the objection is really to the substance of the question At this point,
some interrogators wall ask the wilnen to confirm for the record that
he will follow his lawyer’s instruction not to answer The witness
may be unnerved by suddenly being drawn into a dispute among
counsel.
When the iatcn’ga inusis with an instruction not to answer,
he should make an . A .qia.ai before seeking relief from the
court. In many is $sa.w. opposing counsel will allow the witness to
aaw r enough of the follow.up quessions so that the interrogator
will not seek a ruling on the original instruction. Consider, for ciam-
pIe, a cue in which the plalaitiff brings suit For damage to a cello in
an accident allegedly ca”—’d by the defendant’s negligence Assume
that the plaintiff sold she cello in s damaged condition a year later
and that counsel for the 4r ” ”t asks the plaintiff at has deposition
the price of that sale. The plai”4i0’a attorney may instruct his client
not to a r on she ground that since the plaintiffs damages were
hand at the moment of the accident, the subsequent sale price as not
______ nor N that information reasonably calculated to lead to
dakovery of isible evi ” as f the interrogator drops the sub-
ject, he h no masrance that the court will order the deponent to
ai the qu ’ At the keel, the interrogator should request the
name and addiom of the buyer. He may ded l ’ so stop there, hoping
to obtain more information from the buyer. ll however , the buyer I
likely so be an unfriendly wisnen, the interrogator may continue his
quun’ ’”’g and ask the dep us il whether he brought the damage to
the buyer’s attention, bow he d beJ it, and what he said, ii any-
thing, about its e&ct on the cello’s value The interrogator is surely
entitled so an.,.urs to these quaniosas, and she court will so order if
n....imuMy . Uthe wk.w I permitted to answer , the interrogator may
decide that he bee ua ” information and that he need not seek a
ruling on the original quanmo about the sale price
In many rewording the question will eliminate the in-
isructiom not so aom.asr . For example, if an insurance carrier dis-
claims coverage on the ground that the insured made
mimepreseniations in applying For the policy, the insured counsel
may ask the underwriter at the dep tion whether he claims that the
alleged miuspreseniasions were masesial. Ahliuugh the chances of a
Favorable answer are slim, the interrogator may ask the question if he
senses any possibility of a favorable response Even if the deponent
says that the misrepresentations were material, the interrogator has
not lost ground since that was obviously the deponent’s position go-
ing into the deposition Counsel for the deponent may instruct him
not to answer such a question on the dubious ground that it “call, for
a legal conclusion.” The interrogator may circumvent this instruc-
tion by e*plasnsn
I am not asking you to gave your view of the proper legal con-
clusion I am asking you only to gave Facts Au matter of fact, was
this information material to you in deciding whether to cover this
risk in the raise that ii played a pan in your &‘c..wi
A question which asks the witness what he would have done if
certain information had been reported to him will often be met with
an instruction not to answer on the ground that the question is Thy-
pothetical and calls upon the witnen to speculate” Some hypotheti-
cal questions are undoubtedly proper, and, ii petitioned, the court
will order the deponent to answer;” however, the interrogator may
avoid or eliminate such an instruction by carefully structuring his
questioning. For example, the interrogator should not use the word
“ir in his question. A question which begins “II you had known
- “tenth to provoke a Pavlovian instruction not to answer In-
stead, the interrogator might ask, “Had you known that information
in July, 1982, would you - - - ?“ Ths small difference in wording
may avoid an instruction not to answer .
If the instruction is given, the interrogator should ask follow-up
questions which persuasively demonstrate that he entitled to dl-
cover the information sought. For ezample, he may ask
Without saying whether such information would have affected
your dacasion, please answer this question Would you have taken
such information into aemw’s in rus’ 4 ”tg your drosion?
fl Aiiboi N has baa. ,d ibis snip nat. ap a byp.sbei,c. 1 quonua..
Teas-Ed, Inc v Kussb.l tail, Inc • 520 P Sd 399. tOt (3d cit itU ( S. menpens an assusird
— enp. ihai wi . be ___ p.-iL. ) as w smnP is is q— ’ as she
sue Whn Id have i..pp . .. . 4 sIX had hen d ,L....i ’ Thus. a. - — . as a
.r1. w ne he - as ebas pasts. s.a.id have hen onned if. masran had
es. baa. h. . ..di.J , • and us - : - ove he a.a. us ehas .suuid have
— ‘- had he pusissad a ibieu...i muon diets. penisa. — - - . Isslkflsnv Sassus.
337 P39474.43979 (Sib Or 1994) Tb.. she — us wIn she sen bypesbesscal e
s.d he. Far cusassaus so ai s. a. she SP $s s L a n Min Tsciic
.sJinvTaua.sI399 ,.s SS$n2t (i%(S
7,. . — J. W .’——a . juts . s L 427.
P LOv.P 2l(S(l).
-------
ilO THE REVIEW OF UT/CAT/ON
IVol 22 ,5 19821
PRETRIAL DISCOVER V 7VOLS
IF the deponent answers this question aflirmatively, the interrogator
may ask.
Are you able to say whether your decision would have been the
same or dilluma bad you known that information’
With an a rmaIive ans to this question, the deponent’s attorney
will probably permit bit diass to eaplain how his decision would
have been affected Uma, with that foundation, the court probably
will order the wltnen so asu the question lithe deponent claims
that he would not have such information, the interrogator
may ask him to . uipLriii why suds inkrmation would have been un-
important to hit I.ri ( , if the deponent admits that he would
have rin dvad suds information, but cannot say whether his deci-
sion would ha e bom the interrogator may follow up by
asking she to In: 6vas the factor. that would have pointed
to the rrw 4 ”d , and .soond, she factors that would have kd
to a diffesuss ‘ I’ ”p . ‘The interrogator may also ask the deponent
so list the options available to him when . nsIiusg his d.e4.wi . With
so these qu inic the interrogator probably will not nerd a
riding on the original instruction ma to answer .
N an ahomative to ing individual follow-up questions, the in-
tirrogator may onsisul the witnon to confirm that he would
object to all qusasna on that subject . Such an invitation contains
danga. for both psrtsu If the intersoplor intende to seek a ruling
from the coot, he will crate a mote eoiisp.liing recurd if he asks his
questions (ss least generally) and ,ecesvee a series of instructions not
to answer . U, u.uuipL, en”’ t for the witnon instructs him not
so ans a qurasul pertaining to a certain meeting, the interrogator
om ask in pat a few miauter who attended, how long the meeting
hosed, what subjects west discund . if subject A was discussed, ii
anyone took main , what action was derided upon, and how things
were left at she end of the meeting. Counsel for the witnon, too may
hesitate toadinul that he would snsuuct the witnon not to answer all
qucosons on a sutain subject. To avoid this apparently arbitrary
stance, the witnon’ attorney should state that be would have to hear
she quessiuw and de’ de individually. If he then allows some ques-
tions to be ani,.erod in whole or in part, he may appear to the court
to be ,__ . nn. y wupesalive. Additionally, he will deprive the inter-
iogn’ of a short transcript of twenty dear instnictions not to an-
which the court might quickly review and rule upon.
If u )mifl cow ’ gives an instruction ma to answer a certain
question, the interrogator may ask the witness whether he possesses
the information necessary to answer that question If the witness says
no, she interrogator may decide that It is pointless so seek a ruling on
the instruction hf however, the witness admits knowledge of the in-
formation sought, the court will be indined to rule that he must le-
veal 1(10 the interrogator.
The instruction not to answer may be obviated in some cases by
the offer of a protective order Where is is not Feasible to recite ex-
temporaneously the precise terms of such an order, the interrogator
may circumvent the problem by agreeing so keep the answers confi-
dential (perhaps not even revealing them to his own dunt) until the
panics can concur on the wording of the order or, if no agreement is
reached, until the court enters its own order Counsel should instruct
the reporter to type as a separate transcnpt she portion of the frpnsi .
tsous in which confidential information a revealed.
If counsel the witness objects to a question on the ground that
it invades some privilege, he will usually have no choice but to give
an instructson ma to answer and leave it to the interrogator to seek a
ruling. Counsel may permit the witness to answer the question with
the express understanding that an answer to a single question does
not constitute a general waiver of the privilege Moreover, the inter-
gator should be await that, through his questioning, he himself
nay waive hi. dient’s privilege.is For example, if the plaintiff alleges
that he was defrauded in a certain real estate transaction, the plain-
till’s litigation counsel may depose the plaintifi’s real estate counsel
(whose interest at this point may be adverse to that of the plaintill).
If the interrogator asks about conversations with the plauitift the
court will likely rule that the plaintiff has waived the attorney-chent
privilege as to real estate counsel.
Counsel for the deponent should remember that he will be bound
at trial by she instructions gi s at the deposition Thus, upon objec-
tion by opposing counsel, he will not be permitted to elicit From his
own witness at trial any information that he instructed the witnem
not to reveal at his deposition.”
JS . AH R sms Co v Faat . 2W Fat 991. ot6i (9sbOr iW7).C WINiT &
A Miu.sa. • moss s.g 29 15.a t3O i.q ’. ‘s. Nsa .oa. bee. Ic .Cos ,ssI. i .e.
74 FR D 1* i OSi (W 0 Po 1977) ( .ssnu —.dNRs JJiiV 57 be wed o
ps dipusiom d iosiaws h.d — u i )
79 S j t&xi.,&j Lucas. . ..iss.I .slm. — isvss. 2%.C
A moss 3.,aii& si 127.29
-------
312 THE RE WEWOF UTICA TION
Ivol 22 1982)
PRETRIAL DISCOYERY TOOLS 313
• 1/ ( j Ahlaiys — I*,bw ser Abe b Aanivi
The interrogator seeking an order from the court directing the
witness to answer mint ‘ i r
(I) whether to apply to the cowi in which the action is pend-
to the men . the dutnct where the Sepn ’iion is being
(2; whether is • ‘ —— - i .ae relief (by placing a tdephone
call to the meet) es is ale a wiltesi motion later, and
(3) whet is with the .ep ’— tion if an immediate
riding he or the iqa.-tlnn pending such
1. $%o, A — . If the d.poi. uii is not a pony, the interrogator
mitts apply to the cowl In the ditties where the deposition is being
taken If the iI,aui.ent ía pony, the interrogator may apply either
to the court the riot what the ars i is pending or to the court
in the ditties in which she 4epa . ’in ” la being taken.si Typically, the
intcrsuig.uw will seth a ruling from the court where the action is
p..ding If that court bm an individual ‘ alendar program assigning
the ome to a porsicular judge. If the judge already familiar with
the , be should rule more quickly and surely than one selected at
random in w ’s t ior district. The judge may consider the case his own
and pre r so . “ ‘ ‘— ‘ control of dinuvery . lithe case has not been
signed to a judge, the interrogator will usually apply to the court
whitte internal procedures will yield the moss speedy ruling.
2 4 —ln a case involving a complex factual dispute,
the interrogator will often decide so submit a written motion to the
cowt. In some jiii.dicuons, hos cvcr , it is posiihk to obtain a ruling
by ti .iPpiina g either the c ”bm of the judge to whom the case is
awigned c i the cowi clerk who will imigit the case to a judge. This
procedure is expeditious and innpensi’ e . The interrogator should
be prepared so give the judge: his name, the caption of the case, hi
client’s name, the -‘es of cpipoI ng counsel and their dients, the
nature of the case, the name of the deponent, the question or subject
so so which she inisnactios not to ans’..er has been given, the basis For
the instruction, and a brief argument in favor of the propriety of the
qooniosi. Counsel the deponent will then make a short argument
in . uppo t of the instruction. Following any brief supplemental corn.
‘ nents , the court will nile. This appuuocb is particularly advanta-
— P R Ov P 37(.l(I) -
Si. at
genus to both parties when the deponent lives elsewhere Counsel (or
the deponent can avoid the expense and inconvenience of an addi-
tional tnp should the instruction be overruled, and the interrogator
may fed that the court would be reluctant to order the question an-
swered ii such an order would require the witness to make another
trip. Additionally, the ruling is very likely to be sound since trial
judges regularly make on-the-spot rulings on objections to quest ions
The principal disadvantage to this approach is that, ifabused, it may
become an imposition upon the court. However, litigators realise
that the judge who is Irony the Arst time may be chilling the neat.
1 H4 she at Raru— Generally, the interrogator will continue
to question the witness while awaiting (whether for hours or weeks) a
ruling on the instruction. However, the interrogator should exercise
his nght to recess the Irpositionis if: Arts, the information sought by
the question at issue is critical to further examination of the witness,
or stoond, the instruction is one which is likely to recur at numerous
poiats. In either of these circumstances, the interrogator will gain
little by continuing with his examination and may, by persisting, se-
veal much of his script to opposing counsel.
After the initial interrogator has completed his examination,
other counsel (usually in the order in wluch their clients appear in
the caption) may question the witnen.’ When they have conduded
their questioning, counsel for the witness muss decide whether to ask
his own questions. Most frequently, counsel for the witness will elect
not to question the deponent. The rationale choosing that course
is sound. Tint, counsel for the winos may expect the witness to be
available to testify at trial and to clarify his deposition testimony at
that time. Second, the witness may give harmful answers to his own
lawyer’s questions. Third, the greatest danger is that such question-
ing will kad to another round of questioning by opposing counsel,
the witness who was unscathed aSker hi own attorney’s questioning
may be bloo’lied by opposing counsel’s .ub.i’quent examination
Nonetheless, counsel for the witnem will decide in certain in•
stanem to ask questions as the drp .—tion. He should consider the
following factosx
a ft Ov P S7(s)(2)
Fun ft Dv P 3S c
-------
771E REViEW Of UTICA TION
IVol 2255
l982J
PRETRIAL DISCOVERY 7VOLS 31 S
(a) the posebslisy that the witnen will be unavaaLsbk at inal.
(b) the extent to which the wslnen has been damaged by op-
posing counsel’s aeo ung ,
(c) the danger that , . wL’iI d ,’&ations may sound dwngrn-
uous if initially made at snal, end
(d) the aitorneyl .1 hi wisnen’ ability to deknd the
danficauoni made in a big hi own lawyer’s quou is if that
. ibjr ’eo .ofnb by st
In evaluating the (actor, ,p-- ’-g counsel has badly darn.
aged the witness (pattop. pving , to the spi ’c of summary judg-
mats), the witnen’ attorney may r otimaps to rehabilitate the
wit theough ha own q.ionlng. Ilot. wr , the witness may con-
tinue to touifr pooiiy and make abed situation w itIe . This decision
I k4 more © uiij than i —fl ”
At the dma of she tanso.ci , the latavoptor may auanpt to
hap the Arp u. open by ,maathing that he has “no more qua-
by the depadlion “,-.s nci ”d ,” or by adding
that he may mad so m l she Arpn—cc’s after the oppoa trnn has
n plisl with an open Lto , sequ (& , by pro”cing docu-
i.ciss) . In many “ “ ss cousn”l for the witnan will state kit the
hi # jrr” ' to leaving she Jbr_iIin open. When audi an
I made, the witnon’ auoruey may persuade the court that
he “ '‘ d not have so produce the wisa kw another d.- j .i tson
X Villq,rij
Co,sn.r t tho ’ld videotaping the deposition” if the tout.
my of the witnen I important to hi cose, there a substantial risk
that the wisnan will be unavaiIab e as trial, and the demeonor of the
wi*n will “ -“ hi tasininsay in a material way. For example,
enwurl a very sickly pL ia&ff may videotape hi. dian’s dep si-
SI . PsnLOvP9144
m. W ft. Dv P. 3 M - b4 ft Naroons ID N.aa, . SI.
‘u s - I ____
- a ( to Ao -iIusI I)., ‘‘ — An by ibs pd-cI l s r-
- . -i — Sou t 15* b t en . ,,...d 1 , h en bun
‘ — . l2ULASiu pIW)
- $ I ’° ’ -
. 1 - - - V4.. Ln Tsoss. r s 2 , 91.27
lion lIthe plaintiff should then die before trial, the jury can still
view him aa a person lithe case presents a sharp credibility dispute
the plasntifls personal characten,tics, as depicted on the videotape
may help to persuade the jury to accept his veruon of the (acts Op-
posing counsel should be alert to object if the plaintiff or any other
witness, behaves unnaturally or in a manner calculated to diat sym-
pathy ” On the other hand, not every plaintiff is attractive and be-
hevabk, and. in a given case, counsel for the plaintiff may be better
off with only the dry transcript of his diem’s testimony
If counsel depo.cs his own expert prior to trial, he will usually
videotape the deposition. If a dispute among the expert, arises as
trial, the videotape will usually impress the jury more than a tran-
script which will appear even drier than usual due to its technical
content Even ii the experts do not disagree at trial .g., onume that
the defendant agrees that the plaintiff sustained the damages
claimed), the videotape of the expert’s testimony should impra. the
jury more than a mere reading of the lf.naaIps.
It is important that the lawyer scheduling the ‘ t ”position give no-
tice to other aiunsd that he plans to videotape it.’ A deposition is
usually videotaped with the understanding that it wall be used as the
witnen’ trial testimony, subject to rulings on objections made by the
trial court. In some jurisdictions the videotape ‘I’posision of an ex•
pert witn ne may be used at trial even if she witma available to
t e s tify. Obviously, opposing counsel’s questioning will differ s igni6-
candy when he is not merely attending a regular discovery diposi .
lion, but cross-examining the witness use at trial.
A lawyc served with notice ala videotape deposition which will
probably be shown at trial the testimony of the witness may seek
to take a regular “discovery” deposition in advance. Thus, the at-
It Dv en b , ..J , Thn. .h. èpenns, ths ‘ p---- - asS. so
way a n un.twx_Sy w ci p — _ S IS w cb
i aIs . ,‘—v k * cs.P.i i ,. u , , Na NDCPat -I,si S (lii UN C rm. 2.
$952) — mor enve r—-- - )
s7 U.dci ihe kitwal cit. so ,enal mcii. . , . .,...J buniso the n bait saha
— wi—”ip . she ,e. ci she mcci , b .c wdcied a . w ft Dv P IOtb)(4)
tune jw cucso I uln q soal .dv.a . satin,.,. Pc ft Dv P 40171(b), cia. -
tie. 3d she tJ.dun AaAn ’vunal I puniem An. 12 U LA lS pp 1912)
as
as F. e , 1 w dat*,, p.mo.q she n he so ishe . c dipsasiun. k
-ft.t..d Lisipsiom, No MDCP.12 I, asS (N DNC F 2,1952) tcidwmadi-
uncis ‘ —---‘-,.) . k - Anmc-kd.sod Lisipsiom, N a CP4I.I. c i 5-7 (ED NC 5 s
-------
316 THE REY1EW OF Ufla4 1/ON
IVol 22SS 1982 )
PRETRIAL DiSCOVERY 7VOLS 357
torney will be in the same position to cram-examine the watnen at the
videotape deposition as he normally would be at trial
Several technical arrangements require attention prior to the
d pn.ition. The lawyer scheduling the videotape deposition may
decs to film it in color rather than in black and white The color
tape will be mare attr ive ,àisally but is also more expensive The
tape operator may have belp’itl staggestions about dress and staging
kw color ‘ opec The saps operator will decide what nucropboncs
( hewn , table, or lapel) are The tape operator should be
Instructed to alat mijs el Wa problem arises with sound Finally,
the 4r-’tiOS dinuld be . to she second by a digital dock which
should show .sIIirvequly on she tape.”
Counsel should ivach a deer understanding on several points as
the start of the Arpo.tiein This, how are the expenses to be appor-
si ed ? Normally, the lawyer scheduling the etepesition pays for the
originals of the videotape and the steno aphic transcript, and coun-
sel ordering nipara pay r those.” Second, counsel should under-
stand the practice of the videotape operator (that it, where he will be
jag when) and Id act at all times as iithe jury were in the
moni.” Third, the attorney, should agree on the site where she com-
pleted taps will be stored and press. ed.”
Counsel should r.tin r the physical setting in which the video-
5 5 list) sis powIaI 5k A . sat 0,0 I ) 5oidw) (itwussan
L Qv P 1Q 17 50 _ 4 U.d Awh..ius.sl De - — Au 4 ( , 52
ULA i i app i .
ii . k. Ihods df -C..RJM.L N I.a9(DII Mas it, liSt)
N .kas f- — I., .- — N MOt .St-I, lOll (MD N C.
V a 2, lisa _ 1.,.. p).k f — P Las.psmn. No. CPu.
I, 7 (LD.N i t it, list) (Issi pw.d —
is. pusiud , .lk M she - _ . p dshs . -— — by any - w ’— .
• sh __ , ‘ — hss bp wn wl . she sine..’, kid of swiss Tb,
- — - shoe. n.g the dqm.sms,
he - d—,f ’-. s .d wis — S — a wss.ss any osb
pu — L The th — ‘p a n’ .sh than so isdude .siLbsss, and she
Odd of , so . siam of a p bsthpu.nd k w
• “ 1,.’—. No. MDCPis-i,.a S ( S OD N C va t, liSt) (e.dsr amdm.ass.g ps
- jt F —. — d, — he. 4• P- ta’ :— . No CP-01.I, sat
(LDNC laps. It liSs) ( Is. puusd.i )
is “Ud . s she pu . sbs silpud sussho.,uud , ....ethe of.
V , so an ,dw if she ami, and ness e M md
with dd if ams. t Mshsd.d Ds 1 is.sne Acs$ 4(9 ), 12 U LA It
•app _ __
‘I aI .J he bys am, sip.n . who uan. nLsi she d u,s.os.
k. f I - the MDCP .St-l, — in (SO DN.C. Va. 2, 5952) (aids,
tape deposition wall be taken For example, counsel may object so
the opposing party deposing Its capers witness in his office with his
various academic degrees hanging on the wall behind him
In some jurisdictions a stenographer is required to be present as a
videotape deposition, in others no such requirement exists” There
are advantages so engaging a stenographer even though one is not
required Often counsel will agree that a lawyer desiring to make an
objection will state only that he wants so go off the remid. The
videotape will be stopped, but the stenographic record will continue.
Thus, the videotape will be free of any objections and arguments by
counsel; the tape may then be played before the jury without the
necessity of editing objectsons and arguments. lithe court overrules
the objection, the tape can he shown without interruption or edituig;
even if the court sustains the objection, the interruption (to delete the
question and answer) will be much shorter if the arguments o(coun-
sd are not induded on the videotape. Additionally, if counsel later
wants to check exactly how the witnam responded to a particular
question, it is much easier to read the transcript than to nan the
videotape. Moreover, with the transcript in hand, the judge can
mose easily rule on objections before playing the tape for the jury
Finally, the stenographic record will provide a useful desciuuption of
chang a or interruptions on the videotape, as well as descriptions of
mechanical and technical problems.”
Although jurors may he quite interested in the Ant kw minutes
of the first tape, they may quickly lose interest.” Videotape deposi-
tions tend to be boring, perhaps bee- use recorded rather than live
Thus, it it particularly important to get to the point quickly. The
newhaaa.g r--- -‘-w ) (a. aidid. 5 ) , k e. Athm.iss-P ’ 54 aa7
(LDNC. Saps It $955) (ksspmand side.) (sam)
it “A psssy y sais. is hiss a m...pu,.b.. u .,,a winds be an. si-
pam”F.o a av P IO(b) )
03 1, thiS be she dussy sf 5 5, pu who same she asp ” si. &. ...Uy is
anwasdp amid de.a. she case ,, if she is so • a saps • changed. whsi
by each of she i o sis --—- s.d cads, and . ksitvsr shoi si an
nacraspaus. of she — — saps he she .1 sOihe ’ ,ssiid des s.,
k. _ . ...i belisie if she — ‘—- . si .ahcr .. s- ’ . ”- I Ithie she video
. . _ .L , e ss . .ad iS he any ississ, she shall allow . 5 gaits.. so bney isaac
than panuss., , —....—. — d r . wish 55.. saisca he she vamd “
Rdasmd Langasos , No. MjX .I2.I, tO ( MD NC. Va 2. liSt) 4e. nerds.aisusg
A&_frw, 4. ,.5. SI l , Aths.. . Lasupsucs
ftap,Assg 27, 5952, as Mooriwnam - - _ Sski ,.i l aLU. _ .fa _ a _ sV dep s . .
550•S “)
-------
318 THE REVIEW OF LIT/CATION
IVol 2 25S l 2I
PRETRIAL DISCOVERY TOOLS
interrogator should proceed at a crisp pace, a pause at a videciape
deposition ,nay seem much longer than one at trial since the jury will
me only the ineiipress*ve face of the witnem for several seconds as he
waits for the neat question.
At the s&an of the videotape, the operator should state his name,
she caption of the eme, the name of the deponent, the date, the time,
the piir i , asid any stipulations. Then, each lawyer should identify
) i m.i1f by giving bh siame and the name of the party he represents”
Counsd taking the dqi .i tion should ensure that the administration
of the oath it on the videotape so that the jury will be sure
to me is At the start othh questioning, each attorney should again
state hit name so that even if she videotape operator does not locus
on him, the jury will bow who is interrogating the witnes ” The
operator should ann ’ on the audio recording portion the end of
one tape and the start of the neat.
At the conclusion of the questioning, the lawyers should remain
silent until outain that the videotape es uipment is oft Otherwise,
the jury may how a chorus of sighs and the start of banter among the
attorneys. Such eo ” i may detract 1mm the force of the
t i y .
Editing which it troublesome and oAen eapensive, may be ac-
cn.wpl .hdil in several ways. Puss, the operator can black out the
audit portion only. Thi method works well for short deletions and is
not i yrnsive. However, the jury will grow bored and inattentive if
forced towatdi several minutes of the tape without sound. A second
editing method it to block out bosh the audio and video portions and
move at fast-forward through the deleted segment This method
works well unlem the operator r ” es the tape at the wrong point.
The best, but mast eIprouve, method it to create a second tape with
all objscsion.bhe material drl.te
97 Lw U. A.ès P 5 i.àL Ad 44I)- ). 12 U LA It (Supp ItS2
N. fls s d .sq..s W p4(3). — k A .—aeId l1lI -
sUm, M I$.I. — S LDKC. V 2, u n) (isdir csu iu stdu-
N. Lw k — ±-R “ . .,.‘— . N. MOCPat-I. a 9 (M 0 NC Fth 2, 1552)
— — ‘ .S . - t l.iduiai k — —‘-P L.-
em N. .II.l , I (IDMC 5s ii i , 1951) (Sin psami oi ) ( r)
IN. bNns,Ps.LQV P l7I,I H ID
171-Pt $ 4()d Umi A.éS t Dqr—’ — Ad r’ -u th.
, . , 1 .sI inès , si , ...Lw be susd .” It U LA 2
lN — k — J -P 1 — ,w . No MDCI’.I2I, II (MON C
i— p14- --i )
r Suing the Te.Uamcii
Immediately upon conclusion of the deposition (or at the end of
the day if she deposition is to be continued), each lawyer should dic-
tate a memorandum to his Me summarizing the testimony given
The longer such dictation is delayed, the more the product will
suffer.
Before starting his dictation, the lawyer should decide what pur-
pose the summary us to serve. In some cases, this memorandum will
serve a. the attorney’s summary of the deposition for all purposes
prior to trial In other cases, particularly in complicated litigation, a
legal asostant will prepare a detailed summary of the depniitson as
soon as the transcript is received Bosh the lawyer’s time and the
diem’s money are wasted by dictating a summary which will shortly
be superseded In that situation, the lawyer may dictate a memoran-
dum describing only the highlights of the depn.it ion Such a “high-
lights” memorandum might include:
(a) the principal points that the w1tn would make IT called
as a wunon at trial by the .pp—’twn.
(b) the pnnc*pal points that the int uogator would make with
the witness were he to aon-ezamine him in muss tomorrow, and
(c) what further investigation or d i . very should be insti-
tuted in light of this deposition testimony.
One of the principal problems (acing a lawyer preparing to try a
large case is too much information. A highlights memorandum al-
lows the trial lawyer to get a quick bald on the most important points
that he will seek to make in questioning the witnon Wish that
framework in mind, the trial lawyer can then tackle more detailed
materials which may suggest additional lines of inquiry.’ 0 ’
Generally, the lawyer will forward a copy of his memorandum
summarizing the deposition testimony to the client. He should care-
fully consider whether to send such summaries to a person who may
testify at deposition or trial since opprning counsel may ask that per-
son what materials he has revicwcd in connection with the litigation;
these is the danger that oppoeuig counsel may then seek discovery of
such summaries. Finally, she highlights memorandum may provide
a more meaningful and useful rqiolt to the client than a summary
including every detail.
101 he ibs cssssa, ness sbsi n , iws e k .1 ,tuWvisg ‘hey nc.
ss the u .nzip by - -—i,.—-- . it ., —-w Ulib S lINdI ,_ — he
y be
-------
320 TIlE REY/EW OF UT/CATION
Ivol 22S5 19821
PRETRUL D ISCOI’ERr TOOLS 3 I
Z R ud ( vataq Lle T,aisurt e
Immediately upon r iving the transcnpt, counsel who attended
the depi- tion should read it. ( asiona1ly, reporten make mistakes.
In Inscribing, the reporter may slup a fold of his paper and mad-
veriently omit tottisnony from the transcnpi Also, the reporter may
be interrupted when he is conipteting the transcription and may ne-
glect to include the final qissstion and answer in the transcnps.
Counsel is more hkdy to ‘ i and correct suck erruu tithe Iran-
script is read upon reoel,s .
Cowied for the iq ,AI 4 diould conkr with him to decide what
cortectiom tho,M be made to the transcript. The deponent has the
right to make changes in the tiasisuipt, including changes of sub-
stance.tm For easmple, he may y that be erred at the deposition by
testifying that the light was red, and that it was really green. The
dq ’1I must give his season for making the change but this just ill-
cation may be that he simply “‘us’ated a (act or that his memory has
impnived. Hike Lprn.a.mt “ a ( ‘u’dam’.’tal change in his testi-
mony, the interrogator may adi so s ’ the ai.pna tion to question
him concerning the change. The it.pom..nt may decide not to correct
minor typographical s that do not a&ct meaning. Hat trial he
a4sim that be ied one of his deposition answers , opposing
counsel may bring out that the de, ,an,sit no. only made the state-
ment, but (ailed to amend it even though he read the transcrip, and
minute s .
If the deponent does no. sign the transcript within thirty days,
the reporter may then file die unsigned trascript.us lIthe interm-
pier wants the transcript signed to dimu ie the risk that the depo-
nent will claim at trial that the transcrip, is erroneous, the only
remedy spei ed in the Federal Rules is a motion to suppress the
dcposiiion or some port thernd This remedy (ails to satisfy the
nesdi of the lawyer who wants to ensure his use of the deposition at
nl without MWpnse.
VIII. Preparing the Witnamto Testify
Although ibis Article has focused primarily upon the interroga-
tor, the mast “ afl.’ ging igiim. ii is that of opposing counsel in
preparing the witness to testily Counsel For the witness must antici-
pate every subject of consequence on which the interrogator may
question, the various ways in which the questioning is likely to be
sti-uciured, and the phrasing of the individual questions He must
then decide, based on the knowledge, intelligence, penonality, and
temperament of the witness, how to prepare for such questioning.
Counsel For the deponent should meet with him sufficiently in
advance of the deposition so that there is adequate time to prepare.
The time needed will vary depending upon the nature of the case In
an antitrust case, the meeting may be scheduled a month in advance
of the deposition. In less complicated litigation, it may be held one
to ten days before the deposition. A few days advance preparation
will usually help the deponent to relax. If the deposition Follows the
initial preparation senion too closely, the witnem may amve in an
apprehensive condition and remain in that state
Sometimes, the witness will realise at the preparation session that
he is not cempletdy certain about a particular fact. The interim be-
tween that session and the deposition may afford hun additional time
to assure himself that his recollection is correct He is then likely to
testify with greater confidence. l’he lawyer should meet again with
the witneis on the day of the & ‘posit ion to review the highlights of
the preparation session.
l’he interests of the lawyer and the witness will often differ at the
sian of the preparation session. The attorney will want to determine
quickly the extent of the witness’ knowledge On the other hand, the
witness will want to know what a deposition is and what to expect
Th lawyer should deal first with concerns of the witness If the wit-
ne-x is worried about the procedure, he may have difficulty aincen-
trating on the facts. His attorney should explain generally the nature
of the lawsuit (the gist of the plaintilTs claim and the principal de-
fenses), what a deposition is (an opportunity for opposing counsel to
take the witness’ testimony in advance of trial), and the reason why
depositions are taken (to allow each party to learn more about the
other’s case to improve the chances of setikment or, if the case is
tried, of a just mutt) The lawyer should inform the witnem where
the deposition will be taken, who may be present (at a minimum, the
interrogator, the stenographer, and perhaps the opposing party), and
that the witness will be under oath. He should also describe for the
witness the atmosphere of a deposition. Before turning to the sub-
tat. ho LOv P LIkveoos&D.Hsas, ’ssowSI,N3I4-
a av P %to
lit . ;PsoLOv P
-------
12 TIlE REVIEW OF UT/CA TION
Ivol 225S I982
PRETRIAL Dl.i OVERY TOOlS
stantive knowledge of the witness, the attorney should ask whether
the witnem has any questions about the deposition
The lawyer can then begin his preparation of the witness He
will learn what f t the witness knows and then put him “on the
stand” and ask quenions which he anticipates from the interrogator
At some point, the lawyer should instruct the witness on his con-
duct dunng the l . . imu-at The witnon should be advised. to lis-
ten to the quenios, to be mare that he hears the question. to be
certain that he uadsis .” the question, to answer the question. to
stick to hat ans es , and, mon important, to tell the truth m
The lawyer should amuse that the witness understands that the
drpadtien b been sebed”I’d by the i ppt ng party and is not the
upa time for the witnon to penve his case. Ii may be useful to
esplain to the wisnon that be will be in a position comparable to that
of a goalie attempting so p. .estt his opponent from scoring.
If he ded ’ at nat down the &ld and muse by making self-serving
. p— be m .a. . . she dasiger of being upon himselt
During preparation a deposition, the dqi.DIIJ!ns will appreciate
direct advice om his attorney. 1 lawyer, enample, may
Loak, Mr. Haley, I’m not much use to you imims I talk straight
topon. Yoo’magood usI ’ . ’ andlosa see why. You have an
d e ’s enjoy . pi u 1 ng time with
you. Dat we see not sryuig to sell a computer here. Pot your own
good, 1st a, s you th p aan.us ate much too long Answer
the q and thin heep quics.
U the lawyer M1 that the witnon is net being truthful, he
should ptmu him further. 1 attorney might comment, for ewn
pie, Mr. $pi gi1 , that ‘ 1” ”t make an ounce of sense to me It
won’t to the other lawyers or the jury either.w The truth is rarely as
damaging some tale . - “ct.d by she wunmu.
Ewn aber she deposki w has begun, counsel may remind the wit-
non of thsoe inst,vctsoos. For esample, if the witnon gives a ram-
— —I ” to - Mi . tous •
b — d .—- d tow sto ‘ - ó id bths .
to.d U — . mutt, — 614, d A Mosai&.s, sons,, it 10
i A — on d musa I so we . Tb. as i Is
. Lii.... on d1i to ftuto, . mu on , , . .â.u d kon ft Sqst.
I s . I to on to., — w to •
bling answer, his counsel may point out, “Mr Callaghan, you we.
asked only for a date Answer that question Do not make speeches”
If several witnesses are to be deposed during a short period of
time, counsel should take careful notes so that later witnesses may be
advised in their preparation semons of relevant prior testimony As
he takes notes, counsel may indicate in the margin the initials of per.
ons to be deposed subsequently Later, by skimming these margin
notations, counsel can inform a later deponent of the worth and ac-
tions attnbuied so him by those deposed earlier
The deponent may remark at the preparation session that he does
not recall whether he attended a certain meeting or, if he did, state-
ments made there Usually, she lawyer preparing the deponent will
press the witness to refresh his recollection He may show him min-
utes of the meeting or correspondence generated soon after the meet-
ing referring to it, he may even tell the witness what others have said
about that meeting. In some cues, however, the lawyer may be
pleased that the witness does not recall she meeting The witness
who does no. remember a meeting cannot give harmful testimony
about comments made these How far should the lawyer go in trying
to revive the witness’ recollection? Normally, he will show him the
minutes of the meeting and any contemporaneous correspondence or
internal memoranda generated or received by the witnem. Whether
the lawyer should inform the witness what others have said and show
him documents that the witness neither generated nor received si an-
other question to which these is generally no “right” answer.
The lawyer has no duty to r .I.csh she rerililection c i the witness.
However, if he does not make such an attempt, he runs the risk that
she interrogator will peon the witnon and will succe 4 . Counsd for
the witnon will then fam the serious disadvantage of having had no
opportwuty to probe the witnon’ recollection and to alert him to the
interrogator’s potential questions on this subject. On the other hand,
if as the preparation s 5 iii .i the lawyer attempts to refresh the wit-
non’ romileetson, he may succeed, particularly if she witnon has time
before the .Ii ’pnriiion to speak with others attending the meeting and
so mull hinge over. In the absence o(sudi thorough preparation, the
watson’ memory might not have been refreshed, even by the uitcrro-
gator’s thorough questioning
The witnon may be asked by the interrogator which documents
w.ze shown to or reviewed by him is preparation for the deposition.
-------
324 TIlE REVIEW Of UT/CATION
Ivol 2255 19821
PRETRIAL D/SCOYERY TOOLS 325
Consequently, if fcasibk, the Lawyer prepanng the witness may elect
to question him concerning inkrmaiion contained in documents
without actually pementmg the documents to him Thus procedure
may be particularly worthwhile ii the interrogator has not yet served
request production of documents Alternatively, the lawyer
may iequue the wstnen to review many documents so that even ii
the wunen can det ,. 1 bc them by genetal category, the interrogator
will not learn much bvin the a .
The attorney should advise the witnem that he may be shown and
questioned about spcdSc “t . at she d p ’. tson. When shown
a 4”c ” ens (even with which he I quite familiar) at she deposi-
non, she witaen should force so slow down and look at the
date, she author, she adds ..ae, and those to whom copies were sent.
He should then read the doe ”- ” silently. The deponent should
follow she same rovirne and spend the same amount ad time with
meb document so that she interrogator cannot discern which docu-
ments the witnan revic .nd to prepare for she “p ” ’sion. He should
be cautioned that be may be .“cd . “What did you mean when you
said. . . in this ktsser This kind of quenson can be quite danger-
ouuiif the wisnan moms .nmwhlig other than what he said, why did
he not my what be really meat’s ? The witness can avoid that snare
by aan.asissg truthfully that he means what he said. The attorney
should emasien the witoen that if he does not rainember a document,
even one witids be appom to have written, he should state that he
does not ‘ 1 ’.a is and nothing more. The witnese should avoid
the semp.esim.i so sp rt.Ia1, about bit rr. t na writing the docu-
ment and it. “ “ig
The attorney should alert his witnan that if he has read she depo-
uitions of other w —- . he may be asked whether he nosed any
inaccuracies in those transcript.. Some lawyers will object to the
quesl ’ as overly broad and instruct she witnese not to answer. But
counsel for the wanes may want so avoid giving such an instruction
and, e if such an instruction is given, ii may be overruled. Often
the wisnan can she question by truthfully stating that he did
not read every page and hne of the deposition and did not read the
transcript for she purpose of appraising its accuracy.
The lawyer should “frisk” she witness before escorting him to the
de’io.ision. It he has in his brif’ and pocket. items that have nut
been roq ii sed by the opp au,g party ,g., a poilial calendar), it may
be b not so sake them into she Ip a tlon. U he walks into the
room with a briefcase, the interrogator may ask whether is contain.
anything penalning to the dispute between ihe panics
l’hc lawyer must determine the limitations of the witness he is
preparing He may decide that the witness does not have the capac.
ity to be thoroughly prepared on all subjects The result of attempt-
ing to prepare hum on all subjects may be that he will testily well on
none Consequently, the attorney may decide to cover only the moss
important subjects and prepare she witness so defend his ground on
those topics, recognizing that the interrogator may score in other ar-
eas. Suppose, for example, she plaintiff was injured when the car he
was dnving was involved in a right-angle collision He may be com-
pletely honest and have a valid claim, but may also be easily con-
luied by detailed questioning on speeds, distances, and times. His
lawyer may focus his preparation almost eadusavely on the crucial
point. (that the plaintiff had the green light, was within the speed
limit, looked both ways at he entered the intersection, and that the
other vehicle appeared to be slowing up) and cover the other details
of the accident in a more cursory manner. Counsel for the plaintiff
may rightly condude that if the plaintiff appears honest on the main
points, he will win. If drilled on less important details, he may be
unable to absorb them all, resulting in poor answers on all issues
IX. Condusion
To take a “position well requires skill and thorough preparation.
While there is no substitute for rss-hand experience, consideration
of the matters discused hero may serve to sharpen skills and improve
preparation.
-------
EPA EXPERT WITNESS SEMINAR
DEPOSITION HINTS
1. Preparation
Set aside time well In advance (not the night before) to
prepare for your deposition. You’ll want to meet with your
lawyer to review the pleadings, discovery and other
materials in the file. You should plan to discuss the
theory of the case and how your work fits in. You might
consider role playing with your own lawyer etakingu your
deposition to give you a feel for the real thing. Discuss
these hints--your lawyer probably has more or he may want
to modify these.
2. Documents
Review them before (and bring them with you when) you meet
with your own lawyer. If you know what your documents say,
you’ll generally give a better deposition. If you examine
documents while testifying, expect the opposition to ask
for copies. All requests to provide materials should go
through your lawyer--don’t deal directly with the other
side. Three—ring binders are a good way to organize your
material; you can easily find and remove the materials you
need without thumbing through files (looking disorganized
In the process) or handing over more than you want to.
Stock your binder with clean copies .
3. QuestIons
Pause before answering--it gives you time to think about
the question, makes your response seem more considered and
deliberate, and it gives your lawyer time to think and
object if he wants to.
Listen to objections-—your lawyer may be trying to tell you
something. If your lawyer objects to the form of the
questlon you are still required to answer but often an
appropriate answer Is 1 don’t understand the question-—
could you rephrase lt? Lawyers (usually Inadvertently,
but sometimes deliberately) ask vague questions.
Look for assumptions In the question——you may or may not
agree w1t them. Get clarification If you need It.
Explain your answers. You cannot be locked Into a simple
‘yes or no—-you have a right to explain fully if you
want to.
Don’t volunteer——Don’t Volunteer—-DON’T VOLUNTEER
-------
—2—
4. Mswers
Be aware of the basis of and limits to your knowledge. If
you know It as a fact, say so. If it is only an estimate,
an understanding or a rumor, say so. A very goo , but
seldom used answer Is 9 don’t know.’
Avoid absolutes. ‘Always’ and ‘never’ are dangerous. When
It’s appropriate, qualify your responses: ‘tO the best of
my knowledge’ or ‘at this time.’
Remember that the other side Is sizing you up. Be firm
about what you know and think; be forthright about what you
don’t know.
5. The Cold Record
The transcript won’t reveal a wink, a smile or the joking
context of a remark; the record Is cold and, If you’re not
-conscious of it, unforgiving. Don’t be suckered ;r by the
law r who claims to be ‘juzza country boy (gal) tryin’ to
make a livin’ In da big city.’
6. Take Frequent Breaks
Depositions are hard work for lawyers and court reporters,
but especially so for witnesses who are not accustomed to
the process. Take breaks to relieve stress, stretch your
legs, get a drink, talk with your lawyer . . . . Take as
many breaks as you want-—they won’t proceed without you.
7. Dress and Manner
Be con’fortable If you’re not, your deposition will show
It. Normally, you’ll want to dress In your normal work
clothes, but check with your lawyer on this point——there
are often good reasons to depart from this general rule.
Be firmly polite to the other side. Their lawyer may
‘Jekyl and Hyde’ you to see how you’ll respond. The other
side’s lawyer may attack you, your work or your opinions--
don’t get drawn Into a fight. Remember the Cold Record-—
the other side may forget.
8. ‘Did You Talk With Your Lawyer?’
‘Of courses’
‘What did he or she tell you to say?’
‘The truth ’
-------
—3—
9. QuestIons by Your Lawyer
Depending on the circumstances of the deposition, your own
lawyer may ask questions of you at the end of your
deposition to clarify your testimony, explain additional
matters or for some other purpose. This Is a good point to’
discuss in advance.
10. ReadIng and Signature
After your deposition Is transcribed, you’ll have an
opportunity to read It and make any corrections you believe
are appropriate. It’s extra work but well worth the
effort. There are no perfect transcripts and some
(especially concerning technical matters) are absolute
disasters. NEVER WAIVE READING AND SIGNATURE
-------
Today 4
PRETRIAL
Defending Depositions
By James F.. Daniels
D moNs ate often the düna of.
lawsuit. With claims and defemes tot the
Irit time tested by an adversary, perspec.
dyes develop that may determine when
ttlemeat Will come and it what prios.
Some deponents tie to the onewon.
Others, on whom you may hive counted,
ama unantidpured probisme. The dspo-
sition experience may prompt some
wftneuu— pedally experts and other
volunteers—to develop an urgent desire
to excuse t&muetves from further psrtici-
—. Most important, among the an-
happiest of clients i the one who was
made to look a l at a deposition.
The aidal time tot the defending at-
lorney is before the deposition starts,
advios commonly offered but not so coin-
— b wsd. The Wimma mint
dat the major burden coos the oath
administered, and lawyers who have
does their job to that point ,uid ha
abk so baten to the testimony wib mince
imwtçdoma . ‘T ‘ defense ap1 a
apebla 4fi1 ii oiasy la a r-
y — w
Pru nds. p 4J1La
Ada os hiui Ios s
so do t hid ham p .1
to anot day. ones wamal vS
hive clsnt’s divlded es’.ntkis as
nt atsI !-st a rn anvslesuis
bIy “. “ ‘ psd.ncs .
of the lination . Is la $ to
os ,at asews to—the
y — t have aries
wan 1i1.pil . It ls
sr ncs so Ft the oublesorns 6
— out — tither than pvbbdy
and a Sail opportunity so Igure out a
best fece to put on them. Counsel’s abili-
ty to tharactsrize the osse ends as deposi-
lions begin.
— — .
It Is most often. realIstic and wIse goal
in defending a deposition, whether plain-
tiff or defendant, to hive the deposition
turn out to be a nonevant , wIsh nothing
pined and no harm does. Is Is .quent
of a tough question and an InartfuUy
phrased document will do a aeditable
job. Apprehensive witnesses who must
twist and turn to avoid real or i gired
— will esape unharmed.
The lawyer’s j., ., Is to show witnesses
that their knovlsdge a nothing to worry
about and, in attain msp. u , san
so the case. ThIs does not mean that the
attorney must brainwash depot ’ p
ceeatsafesemeof.sc*thty.&
U, to slant psnp. ive and recok.
to mit the oue. Do not attempt that
approach . Find a way to harmonize what
wimesses bow (and correctly remain-
bet) with the essential points of she case.
The point to press a that they have fecu
that, If amizied from the right perspec-
tive, are he fuL Even If aluui and
ethim could be put so one side, witnesses
who cook up stories ate uliting ducks.
• witnesses v orously
so iinte the reality of whit Is ahead.
Give doponsats a sough time. As U.iithig
pl vuaias , them how so answer by
p ie1rg out verlosu soshaimi
(which almost always Involve doing
— other n anewunag the qus
s ashed) and p 1 ”g how a careful
meyer would have avoided ii It
may esplasant to ce ”
your own t, but the pr cs u ns
sirredasid oma the deponent in
• Wh H uS4Ii t their
l s at &pod tlo n vS be to
reapomiwly v Iy. Ddv-
$meflhlkl W ofa in-
qionulva, n ful a r Is a job thet
to ‘.me —, — — , —
—y . ,sd& esarnØst Wkui .
ha to darstaad Isrm
bstwasa knowledge and surmise, b.-
you yam witome to men —
damoauimue a potential so amity
tivsly at dial. Whas. 1 u
go uieps mam ha soima so pin-
pore
•Wbnmew ha aeds so 1 at
with whit they bow. Piopla in a
pesitlo . so testify wkhovtbutan’ 1 fear
C l . ‘t kboi71
-------
reaj isct . 1 he advamae of the i.
bthty in the pr an t of the i. J
r th e nofloqwes. Explain an the em
mended bet emn ouum
only W the wi re, .
Counsel must actively protect a,
tomey pthiIe and the e i
n1de tIap Information duriaj the
of the deposition. Ccur nd that
mbj matter waiver hm o nm4 ive n
in most inadvertent of
U. — when the lawyer up ly . tod a
detarminsuon that the privi1e n he
w aived and the her iade an Stip ’ed .
They aie rticulariy intolerant of the
in er who perm,a the opponent to in-
quite into areas that help the osuic but
then invokrs the privilege to block dii .
novery into potennalJy herinful azsa .
Given h w blur rd t ie hoe is. the sale
is to rr on the side of
th wnqeu not to antwer
The be&tig mw e it Ian out
doting epatatioo AhOut any mat.
s that involved the
bout deal with the Ivi .
in . P1Ot? 1lej CO ny bide s t .
osher ou entlaj man aho le
ah of time b b WIth a good
via v, ozd r and in alerting depo.
close potentially onnldentiai informa.
ay aw .
One aft J role r lew)er , and
- - too obvious to ntios , le an outer to
the witness’s einoIioual , u lnisl and bio-
neeth On that e, thete’s an
admonnioe that may anuid T IthOUloW
pt $0 005 WhO has ever d L=Iu4,d a
&posrnon ssay awa . [ 4ghz s are
amtut Thheb t*ki
Although p c 1v no has edird
thiIe I Dy, mon bad t ony is
— hetween 3:00 and S p.m. It is
hn rat e that umd heep w
The ai nuts that ar s whether to
ask q”estions i4fh.i to clarify or to devel-
op areas at nuimony. It is
wiidoin that one should not wm ne
without a very psi’ti lir r n, use
anN nerving !nnny ecd only
ope a the door so more qu om bom
the other e. Depositione, however,
have an y pretrial uses—motion pr-
, n anal)sis and settlement talks,
for eumple—that it may be prudent to
patch mitten up on the spot rather than
leave the awkward Icetimooy untouched
—
àn,es E. Daiueb u a parmer in th
New )brk Cuy iiw firm of Wivzha ,
5ur ij, Cohen k#i1autg .r &
ALl . — -
-------
gITIGATION JECHNIQUES
Protecting Your Expert
During DIscovery
3 ) James F.. Daniels
DuV DING against c pCT1 witness discov-
ery s OTtiething la yers are doing ‘ °
and more. but we rarely nsider its
special aspects Ii 5 ThOSt mtponant to
remember that the main function of ex.
pert discovery s cross-exam nation prep-
antiofl and not fact-finding, that whats-
er ofensi e or defensive StT*tC ) is
adopted will almost certaini) be available
with equal success (or lack of success) to
the ad ersary since most courts insist that
expert disco%er) proceed on a quid pro
quo basis..and that an inevitable problem
hampering ones choice of tactics is the
poor stale of the experts preparation.
Identifying trial szpeTt$
Expert discover) ty Icafl) starts with
service of an interrogator) taken verba•
tim from Rule 26(b)(4)(AX1) of the Fed-
eral Rules of Civil Procedure, and so
options in framing a response are limited.
The paramount consideration in the nm
ing. quality and quantity of the answer is
the nourts’ peflC M to paM motions for
further expert disoovefy On the pound
that the s swer to the Rule
(bX4XAX1) ins.rto$*torY wes inade-
quate to permit the other side so pare
he mission for ufaL.
Remember thai this imenaptOfy o .
en only thos testifying under Rule
of the Federal Rules of Evidence—
seperts who will be called to help the
fact-finder grapple with complex facts
and hoses rather than to tastdy about
ivents they witnessed. p.rtiøpstsd in or
learned about in a non-Imption cap. *y
The premature identification of an expert
opens the door to discovct that onuld
prove unwarTanted sad avoidable. The
interrogatory can be avoided temporarily
by sinwenn$ that. in i.ie uords of the
Rules Advisory Committee, the party
does not yet “kno whom he will call.
One risks an order precluding testimo-
5) b) alater-idebtifled expert. a risk that
becomes greater the closer you are to the
start of trial, or the more complex the
subject area for expert testimony. a J
hence the greater prejudice to the adver.
ssr ’s ability to prepare for cross-
examination.
A middle course s so identify persons
liberall but so state candidl) in the an-
swer that intentions with respect to calling
the expert to testify are tentative. That
approach reduces the risk of preclusion
because the adversary will at least be able
to start cross-examinat ofl preparations
by coLlecting and studying information on
the experts backpou d. prior publica-
tiom and the like.
Rule 26A(bX4XAXi) does not define
the word ‘identif) .‘• to the identification
Itself can consist of ievcral categories of
information: name, address (bsssu’iess and
borne). carrent employer, employment
history, academic background. profes-
onal usociatiOfl membersh i, honors
end awards. publications. unpublished
wminp and prior testimony. it is wise to
discuss the answer with the expert ahead
of time, both lot the imprimatur on the
information provided so give
alert thai attain tosoriety win soon fol.
low.
1 jeCt
Nat you must pvs subject miner
onwbich the expert p! ttd to testify.
• stnighdoi vd ruqubament that calls
lot a jineral_description of an hose ci
basses. It is wnWent and to
cii . or pazaphr ae iped& allegations in
the pleadinp.
The chief dt cvhy is to give ‘ ihe sub-
st ”f the facts and opinions
$
i L
‘-i- e?’l \t z
-------
the expert a expected so testify and $
nsmary of the grounds tot sach opus
la’ No standard format or any speak
level of detail $ seqinred. The mote
complete and informative the w oose in
this rst round, the less likely. motion
tot further expert dacovery aifl be pent-
.d. If calrulatiom are I votved. is s best
that they be spelled out in a fashion that
allows opposing counsel to replicate
them. The general rule this area of
dacovery a that the fuller a d clearer the
amwer, the more you can dem from
your adversary. ___
Is it apparent that yafls muss be
dosely involved in the preparation of this
answer, for Is I their testimony that I
being summarized There is an obvious
danger in an answer that overstates the
expert’s opinions. because an expansive
answer becomes a powerful cross-
examination tool if the expert refuses on
the witness stand so embraca some faint
of what was 4 presented to be the ex-
pen’s position. The broader the answer.
the more vulnerable the witness.
Because the content of Rule
26(b)(4)(AXI) discovery is ma idatoTy.
the only available objection I that the
leterrogatory comes too soon. If you are
objecting on that basis, be prepared to
propose a etable and be aware of both
Inereasing piesmares on the courts to ex-
pedite the ensue dbcovesy pu eu and
the growing vies that earl) expert disco’-
ery helps narro the issues in complex
btiphon. An early unenogalor> from
the other side may disclose an eUort to
use discovery a mans to prepare n
U . each as whether to retain an
expert or to assist a retained expert in
formulating opinions. That is not a prop-
er use of Rule 26(b)(4) discover), and a
vslid objection it presented through a
showing that the purpose of the irnerrog-
story eeth the c,oIs-exam lnatlOn furic-
it was designed to serve.
Additional expert discover) is b too-
don only, and the rules do not guide she
-------
that apsnsion through objections and
commulu nons to the court.
The deposition will hkety er several
• The expert’s aedentials, including
prior wminp and prior htiption expen-
s and Iesumony.
• The apecth of she work performed
and to be performed by the expert in the
pending , including facts about the
retainer or .mpm terms and condi-
• The expert’s position on the issues on
which his trial testimony is anticipated.
• The facts, documents and communi-
eations on which the expert’s testimony
will be based.
• All other documents ielated to the
expert’s knowledge of and positions on
subjects other than those on which direct
thai testimony will be sought.
• Impeachment-type cross-exam.
ination.
From the standpoint of the discovery
rules, the fundamental distinction among
these several Lines and types of exarmnia-
tion is that some enable the adversary to
prepare trial cioss-ezam;nation, while
a lbert serve the very different purposes
of developing the ‘- “ner’s own ease
from someone ehe’s expert and conduct-
dress rehearsal of the ma] liseif.
ForbIdden areas
If the deposition drifts into forbidden
areas, defending insel has options to
consider:
• Permitting it to continue without ob-
jection, a sensible tactic when you want
to conduct a t iiI2 1 TTUflatiO of the
opponent’s expert, or when you feel that
the examination will not do cient
damage to justif) a bank, or when you
warn the expert to endure the experience
on the theory that b Will strengthen the
expert for ma].
• Objections for the record, ply to
preserve the point if the departure from
the pound rules becomes wve or
damaging.
• A refusal to poceed , on the argu-
ment that - “‘ tion beyond the scope
of the court’s initial order requires a
second order, with the burden to obtain is
an the proponent of further discovery.
• A motion to the court, by telephone
or on pipers, kzng to preclude further
examination.
A recurring issue at expert depositions
raised by questions directed at the
expert’s communications with counsel
and client. To the extent that the astor.
ney’s work product or attorney-client
conñdences have been shared with the
expert , the con6dentiabty of those mate-
rials threatened It ma be possThk to
hmit the disclosure to an identth tion of
the materials turned ovei you argue
that the materiab in question were not
relied on or used to refreth a recollection
If opposing counsel is unwilling to Ia
that foundation, this could be am-
plished during io u dire Ii should be
emphasized that many courts will con-
clude that any document or fact put into
expert’s possession is fair game for dii-
covery; it is imperative that you proceed
enutiously and in a earefully considered
way before revealing sensitive mforma-
tionto the expert.
Expert depositions are videotaped with
increasing frequency. Often the epert,
as a uonparry, will have the independent
right to object to the procedure. If the
expert is inclined to rcise that right, it
usually will be desirable to persuade the
expert to endure the deposition The
availability of. tape to review, generated
piobabl) at the opponent’s expense. au
be used to help the expert prepare for
trial, both in style and substance
Obtaining fees and expenses
Rule (bX4) contains special pro’.i.
sions to deal with the discovery fees and
expenses related to expert trial amiesses.
The coats associated with iespondirig to
Rule (b)(4XAXi) interragatones are
not recoverable; the reasonable fees of
the expert incurred in providing further
discovery will be recoverable unless
“manifest injustiot would resuh ; and a
fair portion of other fees arid expenses
incurred by the party obtaining underi-
ing work from the expert ma be award-
ed. in the court’s discretion According to
the Advisory Committee Notes. the r•
cisc of that disaetion ‘should depend
upon whether the discovering part is
amply learning about the other pan)’s
ease or is going beyond this to develop his
own ease.” 48 F.R.D. 505 The nsanifest
injusti eaveat is designed to protect
the indigent party. Moreover, while Rule
26(bX4XC) a the sole vehicle for reco-
ary of expert wimess discovery coats dur-
ing pretrial, the poat.judgtnent provisions
of Rule 54(b), the statutory bases for
awath of costs and a host of loal district
nou n rules still app
The opportunity to claim at some
j ure_aaueats the wisdom of having
, r ex ru earefufly unt for their
e and enses arid to segregate sour
e and disbursements in working
wIth experts from the outset of the effort
.in iw E. a b is a ‘iii,’?, p9 1ICtfl
Nr )b’t C&’y.
-------
National Environmental Enforcement Journal
May 1989
EPA ENTRY AND POST-ENTRY RIGHTS
WITH AND WITHOUT WARRANTS
BY JOHN A. HAMILL
INTRODUCTION
This papcr was written in an attempt to bring
some coherence and analytical structure to the
“crisis” issue faced by both EPA and private
counsel when the telephone rings and a stressed
voice inquires: “EPA is here. They say they
want to inpscct. Can they do it? Do I have to let
them in?” Underlying those practical questions
is a host of others that might be asked: “What
rights do EPA personnel have to enter private
property? Where do those rights come from?
For what purposes can they be exercised? How
can one know whether EPA truly has such
rights? Does EPA have to have a warrant? What
happens if EPA is interfered with?”
The topic of governmental entry onto private
premises in connection with federal or state
environmental law enforcement is not dealt
ith holistically in the typical text. Yet that
turns out to be the point of Initial confrontation
for the adversaries in most major environmen-
tal cases. This paper strives to lead the reader
through the main issues in controversy on the
subject, leaving sub-issues to be probed at more
esoteric leisure. The analytical starting points
for the matters most likely to be issues of con-
tention between parties are suggested. Admit-
tedly, the paper espouses a viewpoint that sup-
ports governments’ prerogatives against pol-
luters.
BACKGROUND
A. Historical Note
The Fourth Amendm nt to the United States
Cons i ates di
[ TJhc right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and
seizures shall not be violated; and no War-
. . ..ra, ts shall issue, but upon probab ’ ,
&ted by O iih or afTfr atióii nd
particularly describing the place to be
searched, and the persons or things to be
seized.
Thoughout two centuries, courts have expanded
on our understanding of the boundaries of this
basic right. Currently, under federal law, some
searches, seizurcs, entries, and inspections arc
constitutionally rcasonablc (with or without a
judicially issued warrant) and others arc Consti-
tutionally “unreasonable” even if expressly
authorized by statute unless (I) performed pur-
suant to a judicially issued warrant or a “func-
tional equivalent” of such a warrant, oL 3 per-
formed with the possessors’ consent, or Q
exempted by caselaw, as in the case ol per-
vasively regulated industries or where public
safety considerations prevail, from the warrant
requirement. Therefore, absent one of the
other two exceptions, 1/ inmost instances
federal agents must hold jü ici llj, issued war-
or a functio i qiiiV 1 flo a warrant.&
cntr o be “ reasonable. ”
B. Generic Nature of Warrants
Generically, a “warrant” is cncrely “ [ a] writ or
precept from a competent authority in pur-
suance of law, directing the doing of an act, and
addressed to an officer or person competent to
do the act, and affording him protection from
damage, if he does ii ..” 2/
A judicial warrant is, first, an authentication
and, secondly, an authorization. Analytically, a
warrant confirms, corroborates, and verifies
that (I) a substantive governmental right and
power lawfully exists to enter premises and
there to perform specified post-entry activities;
(2) the holders of the warrant arc properly
authorized by law to exercise such substantive
power, and (3) the provisions and terms of the
warrant itself sufficiently circumscribe for con-
stitutional purposes the physical boundaries to
be observed and restrict the activities that may
be done there. Most importantly, where a sta-
tute confers a substantive entry right without
specifying a particular method for itg enforce-
ment, 3/ an administrative warrant may issue 4/
to verify and confirm such rights.
Civil administrative warrants arc inherently
similar to warrants issued under Rub 41 of the
Federal Rules of Criminal Procedure. Issues
such as staleness, descriptions of premises and
seizable items, and specification of post-entry
activities arc, and should be, addressed by the
courts in the same manner in both instances.
Criminal warrant decisions are, therefore,
usable precedents for issues raised in adminis-
trative warrant cases cxccpt where considera-
tions unique to the criminal law are involved.
-3-
-------
National Environmental Enforcement Journal
May 1989
Warrants can encompass a variety of activities.
Thcy arc not limited to praccipcs only for
searches or only for seizures. Narrow assump-
tions concerning what a warrant may or may
not prescribe hamper propcr legal analysis.
Such a constricted view is not supported by
legal authority or by analytical reasoning.
Administrative warrants arc not inherently dif-
ferent from other types of warrants, despite
assertions to the contrary. 5/ Traditionally, all
warrants carry with them the power to do what-
ever is reasonably necessary to carry out their
commands. 6/ The significant difference
between warrants and other administrative
investigative tools is that warrants do not obli-
gate the possessor of the premises to take any
affirmative action. Other tools, such as subpoe-
nas, require an affirmative act or trigger a sta-
tutory duty. The administrative warrant vali-
dates, confirms, “credentializes,” and author-
izcs.
C. Provenance of Warrant Issuing
Authority
Disputes over the precise source of the power to
issue warrants arc somewhat idle. The most
satisfactory view is that the source is Article HI
of the United States Constitution, granting the
federal judiciary general equity power. 7/
Prior to the decision in Marshall v. Barlow’s.
Inc., 8/ the appellate courts were stumbling
around in attempting to give effect to an
agency’s statutorily granted right to enter
premises. Some courts flatly said that “entry”
rights were to be effected through a warrant
procedure. 9/ Others, with some hesitancy,
agreed but only through a process of elimina-
tion. 10/
D. The Barlow’s DecIsion 11/
Finally, in 1978 the U.S. Supreme Court
decided Marshall v. Barlow’s. Inc.. involving
the constitutionality of the Occupational Safety
and Health Act under which the Occupational
Safety and Health Administration (OSHA)
operates. In that decision, the Court condemned
the statute insofar as it could be interpreted as
allowing OSHA inspectors, through self-help,
to enter an establishment’s private areas without
a warrant, over the occupant’s objection, and
there to exercise statutory rights. The Court
confirmed the lawfulness of OSHA’s statutorily
created rights to enter premises but did so only
by interposing, through the Fourth Amend-
ment, a warrant requirement. The Court ruled
OSHA must first obtain a judicial warrant or its
functional equivalent.
The Court took care to point out that “cause” in
the administrative context meant a showing by
an agency that either (1) reasonable cause
exists to believe that a violation has occurred or
was occurring at the facility to be entered, or (2)
the facility to be entered was identified and
selected by the agency pursuant to a pre-
existing administrative plan or scheme for
entries, and that the plan or scheme was both
derived from “neutral sources” 12/ and
prepared prior to the application for the war-
rant. The Barlow’s decision explicitly noted
that the the “probable cause” language 13/ in
the Fourth Amendment did not apply to admin-
istrative warrants but only to criminal warrants.
14/ The Court’s message in Barlows was
equally clear that the government cannot,
through its field agents, unfairly “pick on” peo-
pie. 15/
E. Post-Barlow’, Caselaw
Most of the EPA-administered statutes have
provisions expressly authorizing the Adminis-
trator and his “authorized representatives” to
enter a facility and do various things after
entry. To date, the EPA-administered statutes
have not been successfully challenged on the
constitutional issue raised in Barlow’s. Gen-
erally, they have been challenged on the
interpretation of particular terms used in those
statutes. 16/
In practice, EPA conducts its affairs as if the
rules announced in Barlow’s also applied, in all
instances, to the environmental sta 9 es. How-
ever, EPA has never conceded .that the
Barlow’s decision is controlling with regard to
EPA’s rights under all the different statutes it
administers. 17/
Sometimes Congress statutorily prdvidcs that
an official shall “observe” or “monitor” certain
activities. Such a provision may not carry with
it a statutory right to enter any particular prem-
ises. Instead, it may mean only that those regu-
lated activities, conducted without such moni-
toring, arc unlawful. The “monitored” activities
arc usually unique. One such case was Balelo v.
Bal .dridge 18/ where tuna-boat captains were
permitted to take porpoises only so king as offi-
cial observers were aboard.
-4-
-------
National Environmental Enforcement Journal
May 1989
A case similar to BarloWs was United States v.
Coleman Evan Wood Preserving. 19/ There
EPA was attempting to cnforcc its right to enter
and conduct post—entry activities by civil action
instead of by warrant. Judge Moore granted
EPA’s motion for an in personam order author-
izing EPA to enter the premises “at reasonable
times for the purpose of conducting response
activities under CERCLA” and enjoined the
defendants from interfering with EPA’s exer-
cise of the rights confirmed by the court’s
order. Proceeding thus, by civil action, is a
method “functionally equivalent” to obtaining a
warrant.; however, it has greater risks for EPA
than warrant proceedings because, in theory at
least, it opens the door to broad and distracting
discovery, counterclaims, crossclaims, and
third-party claims, unless the court, by order,
precludes those matters from the proceeding.
STATUTORY PROVISIONS
A. “Entry Rights” Are Essential for
Issuance of Administrative Warrants
One way that administrative warrants differ
from criminal warrants is that an agency must
have a substantive right to enter onto premises
before a warrant can be issued. 20/ When that
point was ruled upon in Bunker Hill Co. v.
EPA. 21/ the court noted that EPA’s statutorily
granted right of entry was a sufficient basis for
EPA using, and the magistrate issuing, an
administrative warrant. There is no necessity
for the agency to have “implementing regula-
tions” in order to obtain warrants. It need only
have and show statutory rights of entry onto
premises.
B. No Warrants for “Access” Rights
Unconnected with Premises
A statute may grant a right to “see” an item or
“have access” to an item, or even “to inspect” an
item, but such provisions may not necessarily
and inevitably mean that the “right” is exercis-
able at or on premises occupied by the person in
possession. It might be that the items to be
inspected could be taken to the demanding
agency’s own offices for examination. The right
to inspect documents or records is very suscepti-
ble to that drafting flaw. The case of Midwest
Growers Co-op. v. Kirkemo 22/ involved
language in the Interstate Commerce Commis-
sion (ICC) statute that the court said created
only a personal right to sec certain records, not
an “entry right.”
Consequently, a right to “have access” or to
“inspect” that is ambulatory (se.. unanchored to
specified premises and inherently exercisable at
any location) may not carry with it an express
or implied right to physically enter premises.
23/
C No Warrant Where Statute Specifies
Other Methods
In the Mid-West Growers Co-op. case, another
issue was raised. The court ruled that the ICC
statute specified that an injunction is the
mechanism by which the right to examine
records would be enforced. Therefore, where a
statute prescribes an exclusive method for
exercising or enforcing an agency’s statutory
right, that method is the sole means for enforce-
ment, and an application for a warrant will be
denied. likewise, in In Re Kuip Foundry.
Inc.. 24/ the court ruled that OSHA, in one sta-
tutory subsection, had been given subpoena
power as its method for obtaining documents;
hence that method was ruled to be exclusive
and precluded issuance of a warrant to obtain
documents.
There are no such difficulties for practitioners
under the Comprehensive Environmental
Response, Compensation, and Liability Act
(CERCLA), inasmuch as amendments enacted
in 1986 expressly provide rights of entry. 25/
Therefore, an administrative warrant is an
appropriate and lawful vehicle to enforce entry
rights under that statute.
EPA ENTRY PRACTICES
A. Physical Activities. Excepted from
Warrant Requirements
There are four types of activities that sdemingly
arc exempt from the general requirement to
obtain a warrant: (1) aerial overflights and
observations by passers-by, (2) LIDA t and
other sense enhancement devices, (3) open
fields inspections, and (4) certain on site obser-
vations.
EPA is free to take aerial photos of facilities and
to make use of observations made by lawful
passers-by. 26/ In undertaking this type of
activity, the agency may use the most advanced
yet reliable sense enhancement devices for the
detection and measurement of the release of
pollutants to the environment. One c ample is
the use of LIDAR, a form of radar, that can
dctcct and measure distant air emissions of
-5-
-------
National Environmental Enforcement Journal
May 1989
particulate matter. In examining LIDAR cases,
courts may wcll apply the samc “no search”
rationale that was rcndcrcd for “beepers” in
United States v. Knoits. 27/
Federal administrative agencies can also take
advantage of some of thc “no-warrant-needed”
exceptions created in criminal law cases. The
“open fields exception” doctrine enumerated in
Oliver v. United States 28/indicates the Court’s
willingness to adhere to the common law con-
cept of that exception in a criminal case. There
is no reason why that ruling should not equally
apply in an administrative law case to obviate an
administrative warrant. 29/
The fourth of these enumerated exceptions is
one noted earlier and exemplified by the deci-
sion in Baklo v. Baldridge. 30/ Where certain
unique activities arc taking place, an official
presence is necessary for that activity to be law-
fuL In Bolelo, the court ruled that no warrant
was required in order to place government
observers aboard boats that operate with per-
inits from the Department of Commerce. The
court ruled that such “presence” was not a
search or seizure. It was, instead, a permit “con-
dition.”
B. Warrantless Non-Consensual Entries —
a Myth’
EPA reserves its right, even In warrant applica-
tions, to contend that its proposed activities
come within some caselaw exception to the
Barlow ’s requirement for a warrant, but as yet,
with the exception of Public Service Co. v.
EPA. 31/ no decision has been concerning an
EPA warrantless, non-consensual entry.
Some entry rights are said to be exercisable
without a warrant. However, unless self-help
(the privileged use of reasonable force to
accomplish the entry and to preclude interfer-
ence) is available, such a warrantless entry right
is pragmatically illusory. It can only be
enforced, if entry is refused, by the agency’s fil-
ing a plenary suit for a mandatory injunction
for entry—a warrant’s functional equivalent.. If a
law enforcement officer were to accompany
EPA personnel asserting warrantless entry
rights, self-help for entry would actually be
available. But it is unlikely that officers would
lend such assistance to EPA on the mere asser-
tion that the agency holds warrantless entry
rights.
A triple prong test for determining (usually
after the fact) if a statutory right to enter prem-
ises without a warrant is constitutional was set
forth by the Supreme Court in New York v.
Burger. 32/ In that case, a state statute
empowered police to enter and inspect motor
vehicle junk yards, regularly and without
notice, and to penalize a refusal to allow such
entry. No requirement for a warrant was spcci-
fled. The state’s highest court voided the statute,
applying its view of the reasoning in Barlow’s,
but the Supreme Court reversed. It ruled that
the warrantless entry by two policemen under,
the statute did not offend the Fourth A mend-
ment because vehicle junk yards were per-
vasively regulated businesses. Thus, warrants for
entry were not required.
C Ex Parte Applications Must Not Be
Adversary Proceedings -
It is clear that EPA may obtain warrants on ex
parte application and that such applications
may not be turned into adversarial contests. 33/
E parte proceedings to obtain warrants do not
deny either procedural or substantive constitu-
tional rights. If they did, then criminal warrant
proceedings under Rule 41 of the Federal Rules
of Criminal Procedure would also be uniformly
unconstitutionaL
Some lawyers attack ex pane warrant applica-
tions by arguing that their clients should be
entitled to contest, from the very first, the
issuance of such warrants. Were that so, warrant
applications inevitably would be turned into
adversarial proceedings. However, the Supreme
Court indicated its sipgular aversion to such a
result by its decision in Zurcher v. Stanford
Daily News. 34/ The Court in that decision
approved the usc of warrants to obtain docu-
ments and to search premises even though the
possessor was not a suspect. It demonstrated
clearly its preference for a warrant i sued ex
pane over the issuance of a subpoena that
might well entail adversarial proceedings.
It has been clearly ruled that it is not within a
magistrate’s discretion to allow a non-party to
intervene and be heard in agency ex pane war-
rant application proceedings. In the case of In
Re S.D. Warren. 35/ thc court statcd that “an
adversary proceeding... could only result in an
unreasonable and unnecessary burden.” 36/
Some lawyers contend that cxccutidn of EPA-
obtained warrants (mainly those issued under
-6-
-------
National EnvironmentaL Enforcement Journal
May 1989
section 104 of CERCLA, 42 USC. 9604) will
involve constitutional “takings”; 37/ hence, an
opportunity to be heard should be required
beforc such warrants issue. Even conceding the
premise, the conclusion remains false. The fact
is that the post-entry remedy contained in the
Tucker Act 38/ adequately protects any substan-
tive due process interest, even if one were to
assume that a constitutional “taking” would
occur under the warrant.
D. Advance Notice to Possessor Not
Required to Obtain a Warrant
EPA is not required to give advance notice of an
inspection to a plant or its personnel. The right
to proceed ex porte obliterates all such notice
requirements. Similarly, notice to a possessor of
EPA’s inspection under a warrant or of EPA’s
ex porte application for a warrant is never
required. Advance notification would only
encourage a possessor to attempt to intervene in
the ex porte proceeding, making it an adver-
sarial and contested proceeding, contrary to its
basic structure. 39/
E. Request for Possessors Consent also
Unnecessary
As a matter of courtesy, but not because of
regulatory, statutory, or caselaw requirements,
EPA personnel usually ask the possessor’s
express consent to entry, search, inspection,
and/or sampling. However, any form of consent
other than “yes” creates potential problems and
therefore, EPA will not accept it. The statutory
right overrides the need for consent from any-
one. Even if EPA, as a matter of courtesy, usu-
ally tries to “work something out” with the pos-
sessor, that never means that it is legally
required to do so.
F. Efforts to Negotiate Terms with Posses-
sor Unnecessary
A magistrate or court may inquire whether an
agreement might be reached between the
agency and the possessor of premises to obviate
a warrant. EPA does attempt to gain consent
when it is quick and certain, but the law does not
require an attempt to negotiate conscnsu.al
entry. Such requirement would be tantamount
to EPA’s foregoing its statutory rights. Obvi-
ously, EPA will pursue whatever path leads to
the easiest means of entry. In some cases nego-
tiation is that path; in others, it isn’t.
G. Refusal of Consent by Possessor also
Unnecessary
Environmental statutes confer a substantive
legal right, power, and authority upon desig-
nated EPA representatives to enter premises
and to conduct post-entry activities there. The
law does not require EPA to show that entry has
been refused in order to obtain a warrant. The
existence of the substantive right to enter yields,
by itself, a concomitant right to have judicial
confirmation of that right by issuance of a war-
rant. Sometimes an issuing magistrate mistak-
enly may regard “refusal of consent” as some
kind of indicator whether “reasonable cause”
exists to issue the warrant (a non-sequitur.
admittedly, but not an atypical one).
H. Need for Surprise Unnecessary
Some have argued that, absen(a demonstrated
need for surprise, the agency must give the pos-
sessor notice of the warrant proceedings and of
the prospective entry, or else be denied the war-
rant. The rationale for this view Is rarely articu-
lated. The contention Is spurious. It interposes
the necessity of a showing of “need” by EPA
before using ex porte proceedings. This
erroneous contention has been fairly well put to
rest by the decision in Bunker Hill Co. v. EPA.
40/
L Time Limits for Warrants — Mainly
“Prudenilar Rules
A ten-day duration is imposed on criminal war-
rants under Rule 41(cXI), primarily to insure
that probable cause continues to be present to
support the warrant and to pr.event staleness. No
such explicit duration limit is imposed upon
administrative warrants for the very pragmatic
reason that more sophisticated types of activi-
ties, taking longer, must usually occur after an
EPA entry. Magistrates typically insist .upon
imposing time limits that arc calculated by
estimating the time necessary to accomplish the
proposed activities. Typically also, they will set
an expiration date for the warrant to insure that
a renewed or new warrant, based upon updated
information, is obtained for further activity
even if it is precisely the same activity as
allowed under the initial warrant (e.g.. sampling
test wells drilled months earlier in an initial
entry). Various termination dates arc inserted
in warrants depending on the activities
involved. Periodic renewal of warrants can be
required. In fact, that procedure strikes a much
-7-
-------
National Environmental Enforcement Journal
May 1989
better balance then would injunctive proceed-
ings in a plenary civil action (or proceedings
under the All Writs Act 41/) because of the
very short and expedited nature of administra-
tive warrant proceedings.
J. Re-Entries under Warrants
EPA administrative warrants typically provide
for re-entries prior to the expiration date of the
warrant because laboratory analyses, such as
testing for hazardous substances and their con-
centrations, often interrupt the post-entry
activities. No return is required on the adminis-
trative warrant until after the final entry.
K. Displaying Credentials
Some EPA-administered statutes mention the
presentation of credentials; others do not. How-
ever, as a matter of practice, EPA employees
usually do present their EPA credentials at the
time of entry. The credentials only authenticate
the EPA employee’s representation that he or
she is a federal official authorized to enforce
the environmental laws. An administrative war-
rant however, also “credentiallzes”—so much so
that “credentializatjon” can be considered one
prime function of an administrative warrant.
L Statement of Purpose upon Initial
Entry
Some EPA-administered statutes specify that
written notice must be presented to the posses-
sor of the premises entered, but some do not.
Usually an EPA official will verbally explain, in
general terms, the post-entry activities he or she
expects to be performing. However, the inspec-
tor will avoid giving an occupant the opportun-
ity to learn the precise focus (as opposed to the
general aspects) of the inspection, particularly if
that information would enable the possessor to
misdirect the inspection or to contrive an
appearance of compliance.
M. Motions for Return of Items and
Supression of Evidence
In B&B Chemical Co.. Inc. v. United States,
42/ thc court ruled that a complaint, filed after
an EPA administrative warrant was executed,
should be dismissed as moot because the pros-
pect that EPA would later attempt to use the
gathered information in a judicial or adminis-
trativc action against the possessor was too
speculative and remote to make the current
action a live Article Ill controversy. The lower
court ruled that it lacked jurisdiction to quash a
warrant that had already been issued and was in
the process of being executed—a demonstrably
correct decision.
N. Bivens Claims Based on Administrative
Entry Orders
Neither a Bivens issue 43/ nor evidence supres-
sion issues have been raised to date regarding
EPA entries, even in Industrial Park Develop-
ment Co. v. EPA. 44/ arising in Pennsylvania.
The matter is otherwise regarding inspections
and evidence supression in OSHA cases. 45/
The signatory of an EPA-issued order that con-
tains provisions directing the premises’ posses-
sor to allow EPA personnel to enter is invari-
ably confronted by the Bivens issue. In such a
case, the signatory may be acting in excess of
lawful authority, and, if harm is caused, per-
sonal liability may ensue. An evidence suppres-
sion argument is equally likely because an
order’s aura of official coercion arguably
vitiates any voluntary waiver or consent 46/
Assuming that some warrantless exception is
wholly unavailable, without the waiver or con-
sent argument an order’s entry provisions will
prove to be unlawfuL In such a case, there may
be a violation of Fourth Amendment rights if
and when physical entry is made under the
administrative order. For these reasons, the
1986 amendments to CERCLA, which purport
to provide for entry by means of an administra-
tive order (42 U.S.C. 9604(cX5)), may prove to
be unconstitutional.
0. Good Faith Belief that Warrant Is
Valid
The Supreme Court decision in United States v.
Leon 47/ that no evidence obtained in violation
of the Fourth Amendment will be cxcludcd
where there has been good-faith rçllance on a
facially valid warrant will certainly be relied on
by EPA and other federal agencies to justify
their use of information obtained pursuant to
an administrative warrant. The very existence
of this exception to the prophylactic exclusion-
ary rule will almost necessarily moot out most
complaints filed for the suprcssion/exclusion of
evidence obtained under an administrative war-
rant.
-8-
-------
National Environmental Enforcement Journal
May 1989
P. Dispossessing Post-Entry Acts -- “Tak-
ings under Warrants
Under CERCLA provisions, EPA’s exercise of
its rcmoval and remedial rights, because of the
duration and/or displacing aspects of activities,
in some instances may bc ruled a compensable
“taking.” But that does not justify delay in issu-
ing a warrant. It is, at best, a basis for after-the-
fact filing of a complaint in the US. Court of
Claims for just compensation. Claims Court
proceedings for such compensation need not
precede the operative event alleged to be a com-
pensable “taking.” 48/
CONDITIONS RESTRICTING EPA ACTIVI-
TIES ATTACHED TO CONSENT
A. Signing/Accepting “Passes,’ “Logs’
“Waivers .” “Indemnity Agreemen:s7
“Releases.” or Similar Items
Sometimes attempts are made by the possessors
of premises to restrict EPA’s post-entry activi-
“-c making the signing of some sort of
document a condition to the consent of the pos-
sessor to EPA’s entry. 49/ EPA resists such
efforts.
EPA inspectors may not sign or agree to any
such matters. Signing something can not prop-
erly be made a condition to EPA’s exercise of
its rights to enter, search, inspect, or investigate.
Insisting upon the signing of any such contrac-
tual item operates as refusal of consent and as
insistence on the presentation of a warrant.
Typically, upon refusal of consent, EPA will
seek an administrative warrant. The warrant
application and supporting affidavits arc avail-
able to the public in the court file after the war-
rant has been executed and a return (a written
report and inventory) made on the warrant.
B. Confidentiality or Secrecy Agreements
EPA representatives will not sign any agree-
ment to hold as confidential what is observed or
discovered during an inspection or investiga-
tion. EPA will facilitate the making of a claim
under 40 C.F.R. Part 2, Subpart B, for a
claimant who asserts “business confidentiality”
for submitted records. However, insistence that
EPA representatives sign such an agreement
effectively operates as a refusal of consent, and
EPA’s response will be to obtain a warrant for
entry and post-entry activitics. 50/
C Restrictions on Photographs or Other
Mechanical Recordazions
Attempts to restrict or inhibit post-entry activi-
ties by EPA arc sometimes directed at photo-
graphs, although the same principles apply to
any mechanical method of recording impres-
sions of perceived conditions. Mechanical
recording devices such as cameras arc the only
reasonable method for capturing a communica-
ble impression of then-existing conditions,
many of which may be wholly transitory. The
right to use any mechanical recording device
inheres in EPA’s right to Inspect EPA claims,
for example, the right to use its own cameras,
develop its own film, and to make its own
prints, regardless of the presence or absence of
consent by the possessor to such activity. 51/
EPA will grant a request to review matters pho-
tographed during post-entry a&ivity In order to
afford the possessor of the premises an oppor-
tunity to assert claims of confidentiality under
40 C.F.R.. Part 2, Subpart B.
D. Revocation of Consent
A possessor of premises may give initial consent
to an EPA entry but try to revoke that consent
after EPA has entered and begun its activities.
While the issue of the possessor’s power to
revoke consent is open to debate, EPA should
have the right to complete Its inspection once it
has begun without Interference based on
alleged revocation of consent. 52/
E. Safety Gear and Procedures
Generally, EPA representatives use the same
safety equipment that operajors of the facility
usc but EPA has the right to decide not to
undergo the safety training the operator may
require of its workers. 53/ Insistence p such
training is, in effect, refusal of consent to EPA’s
entry, and EPA’s response will then be to obtain
an administrative warrant to achieve its entry.
F. Obtaining a Copy of the Inspector ’s
Notes
Some possessors try to inveigle an agreement
from EPA that they may see, read, or copy
notes made by an EPA inspector. EPA does not
allow such access although the possessor may
submit a request under the Freedom of Infor-
mation Act to which EPA has ten days to
respond. Whilc inspectors may point out.various
items that thc possessor should re-check for
compliancc purposes, EPA’s inspecting
-9-
-------
National Environmental Enforcement Journal
May 1989
representatives arc never authorized to tell a
possessor that there arc no violations. The intri-
cacies of EPA-administered statutes and regula-
tions frequently do not facilitate reliable on-
the-spot opinions.
AUTHOR IZED POST-ENTRY ACTIVITY
A. Scope of Authorized Activities after
Entering
A rule of thumb is that the language of the sta-
tute, fairly and straight-forwardly construed,
determines the nature and extent of EPA’s
post-entry activities, even if the statute may
authorize activity amounting to a “taking.”
Administrative warrants presuppose that a right
to enter is statutorily conferred and that a con-
corn itant right to search (i.e., to verify by physi-
cally checking as opposed to naively taking the
word of the possessor) likewise exists.
Occasionally, EPA statutes are tested as to the
scope of activities which they authorize. One
case, Mobil Oil Co. v. EPA. 54/ resulted in a
ruling that the sampling of in-house, as opposed
to end-of-pipe, process effluent was within the
purview of EPA’s inspection and sampling
rights conferred by section 308 of the Clean
Water Act, 33 U.S.C. 1318. In another case, In
Re Bunker Hill Co., 55/ the court explicitly
ruled that EPA’s right to inspect included the
right to take photographs (that can be subjected
to confidentiality claims under 40 CF.R. Part 2
Subpart B) of the facility and equipment. EPA’s
right to obtain documents by means of a war-
rant was challenged in Bunker limited
Partnership, 56/ but right now that seems
beyond dispute under 42 USC 9604(eX6). 57/
Language varies from statute to statute as to
what activities EPA may perform after entry.
However, the typical word “inspect,” “inspect-
ing,” or “inspection” that appears in each of the
statutes includes the right to record by sam-
pling, photographing, tape recording, graphing
by electronic devices with a taped readout, or
other methods, depending upon the matter to
be inspected.
Somewhat similar to the In Re Kuip Foundry
decision 58/ are two opinions that contort the
subpoena analogy found in See v. Seattle 59/
into a purported requirement that, for noncon-
sensual entry, an agency must obtain a sub-
poena (in addition to a warrant), pinpointing
and describing thc documents or records to be
perused. Thc two decisions arc Bunker Limited
Partners/zip v. United States 60/ and United
States v. Stanack Sales Co. 61/ In each of these
cases, the court misunderstood the language
concerning the subpoena analogy that was used
in the See decision.
Apart from all else, the practitioner must
remember that subpoenas are commands to a
possessor, who then must himself search and
segregate the subpeonaed material, while war-
rants do not command or require a possessor to
do anything.
B. Splitting Samples
Three of the EPA-administered statutes specify
that, if requested, split samples must be pro-
vided by EPA. These are the Resource Conser-
vation and Recovery Act (R.CRA) section
3007(a), 42 U . S.C 6927(a), CERCLA section
104(e), 42 US.C 96 04(e ) , and the Federal Insec-
ticide, Fungicide, and Rodenticide Act
(FIFRA) section 9(a), 7 US.C. 136g(a). Those
who support such provisions argue that a facil-
ity should be able to challenge the accuracy of
any government testing and analysis at govern-
ment expense.
C. Copying Versus Seizing Documentary
Items
The practice in executing warrants issued under
Rule 41 of the Federal Rules of Criminal Pro-
cedure is to seize and carry away documents. In
some instances, that practice can hamstring an
ongoing enterprise. Apparently, concern in
that regard has prompted enactment of provi-
sions in various statutes that EPA may peruse all
documents subject to the warrant, but must then
copy on-site those records it wishesjo seize and
remove from the premises.
D. Nonconsensual Searching an4 Screen-
ing
Occasionally, an argument is made, especially
in regard to documents, that the statutory pro-
vision at issue does not explicitly grant the right
to search even if one holds a warrant. However,
statutes rarely explicitly authorize a search in
exact words. May the government verify, by its
own search, that it has found (and possesses) all
documents or other tangible items that arc
relevant? Must the government naively grant a
possessor a prc-cmptive opportunity to sanitize
the product of the search, or take the word of
the possessor regarding what items are relevant
-10-
-------
National Environmental Enforcement Journal
May 1989
and what itcms nced not bc surrendered
because they arc confidential? Thc Supreme
Court has stated that there is no “spccial sanc-
tity in papers [ vis-a-vis other tangibles] -. - to
render them immune from search and seizure”
when they fall within traditional principles
applicable to warrants. 62/
REDRESS/SANCTIONS FOR HAMPERING
EPA ENTRIES/INSPECTIONS
A. Refusals of Consent for Entry
EPA’s typical response to refusals of consent to
entries or to the conditioning of consent has
been for the agency to seek a warrant or a func-
tional equivalent thereto.
Some statutory provisions, such as those in
FIFRA and the new section 104(cX5) of
CERCLA, purport to penalize by civil penalty a
refusal to permit EPA entry when EPA’s effort
to enter is lawfully made. Such provisions
presently force possessors to guess if EPA may
enter without a warrant. 63/ These penalty
terms may be invalid in the context of a war-
rantless entry, but valid when EPA shows up
with a warrant.
B. Warrant Situations Where Refusals
Occur
All warrants are executed—they need not be
served nor enforced as such. Service is not
essential to the legal operation of an adminis-
trative warrant because it is not encumbered by
Rule 41 but only by the “copy-delivery” terms
(if any) contained in the warrant itself. Service
of an administrative warrant merely gives
notice. Execution of the warrant Is by physical
force, if necessary. For that reason, EPA usu-
ally has one or more Deputy United States
Marshals accompany EPA personnel on an
entry under a warrant. Where such is not the
case, the issue becomes whether in the case of
refusal EPA will usc self-help or, instead, will
resort to contempt proceedings.
In In Re Bunker Hill Co., 64/ the operator of
the facility obstructed EPA’s entry and activities
in the face of a judicially issued warranL A
Motion for Contempt was then filed. Had a
Deputy United States Marshal been present, he
could have made an arrest since interference
with a civil administrative warrant results in
criminal liability under 18 USC. Ill. lSOl,and
1509. Such a warrant is, after all, a court order.
C. Use of Reasonable Force
The use of reasonable force to execute a war-
rant issued under Rule 41 is familiar to every-
one. There seems to be no sound analytical rea-
son why the same principle does not apply to
administrative warrants.
FALLACY OF ENTRY/CONSENT/ACCESS
DIRECTED BY AGENCY ORDER
A. Unilateral Orders
A unilateral administrative order (as yet not
judicially enforced) is not, by itself, the func-
tional equivalent of a judicially issued warrant
required under the Fourth Amendment. As
mentioned above, the language of the new
CERCLA section 104(eX5) may imply other-
wise, and if so, that section may not stand up to
constitutional challenge. 65/ -
R Entries Under Provisions in Agreed
Orders
Few quarrel with the legal efficacy of a
respondent’s agreeing to an EPA order whose
provisions include an irrevocable consent to
EPA entries. Such a respondent thereby con-
sents to such entries and to related consequent
activity. In such a case, the issue should be
analyzed in terms of the existence and extent
of the consent rather than of EPA’s powers.
Some point to Nicolet v. Eichler 66/ as contrad-
icting this analysis. In Nicole:, a second
CERCLA section 106 order superseded a prior
order and basically contained provisions that
only commanded the respondent possessor to
allow EPA to come onto the premises. The
plaintiff sued to enjoin the enforcement of the
second order and EPA counterclaj 1 ned for
enforcement. Properly, the distrièt court
reviewed EPA’s order, applying the
arbitrary/capricious standard of - review
approved in a:ize to Preserve Overton Park
v. Volpe 67/ for nonadjudicativc. agency
decision-making. It ruled that the order itself,
plus the various documents underlying it that
the agency had considered before issuing the
order (the agency’s informal administrative
record), supported the agency’s commands set
out in the section 106 order. The court con-
cluded that the order met the applicable criteria
of the Administrative Procedure Act, 5 US-C.
706(2XA),—thc action of the agency had not
been arbitrary, capricious, an abuse of discre-
tion, or not otherwise in accordance with law;
—11—
-------
National Environmental Enforcement Journal
May 1989
hence the court specifically enforced the
order’s entry provisions. The Court’s confirm-
ing order (but not EPA’s order) amounted to
the functional equivalent of an administrative
warrant.
BYSTANDER OR THIRD-PARTY PREM-
IS ES
Just as third-party premises constitutionally
may be entered under a Rule 41 warrant, as was
the case in Zurcher v. Stanford Daily News.
(to collect evidence of a crime), 68/ the “entr-
able premises” under some environmental sta-
tutes include those premises adjacent or related
to the precise focus of EPA’s entry and post-
entry activities. That occurs mainly under
CERCLA where EPA sometimes needs entry to
premises other than the location of the initial
release or threat. Such other premises may be
an area that must be inspected to determine the
outer limits of the area of contamination or it
may be an area needed for staging and
maneuvering. Whether or not he is viewed as a
suspected potentially responsible person (PRP)
or possible respondent by EPA, for purposes of
analysis here, an adjacent premises possessor is
called a 4 ’bystandcr premises possessor,” or
BPP.
The BPP problem has been addressed to some
degree in the 1986 amendments to CERCLA.
New section 104(cX3XD) identifies as entrable
any premises where entry is needed to effectu-
ate part or all of a response action. That right-
of-entry provision should solve most BPP prob-
lems under that statute.
The involvement of a non-consenting BPP who
cannot properly be made a respondent In an
EPA- issued order inevitably raises the potential
of eminent domain or taking claims. If it be
argued that the terms of the statute authorize
EPA to command a BPP to allow some third
party (who may be more a miscreant than an
agent or “authorized representative” of EPA) to
enter upon the BPP premises, then such a sta-
tute and such entry attempts arc likely to be
attacked by BPPs under the Fourth and Fifth
Amendments. Using a BPP’s land seems dif-
ferent from compelling a BPP’s cooperation as
a citizen in providing evidence and the like.
Entering land is, however, essential to abating
threats from releases or from contaminated
facilities. 69/In any case, the entry of BPP land
can amount to public affirmative usc of BPP
property and a true “taking.”
Since warrants under Rule 41 of the Federal
Rules of Criminal Procedure involving third
party premises are valid, one can argue that
administrative warrants must also be valid for
such purposes so long as the statute can be
shown to create a substantive right to enter the
BPP’s premises and to perform post-entry
activities there. Absent such a right, only the
All Writs Act or the new section 104(e) provi-
sion of CERCLA appears to be readily usable.
ALL WRITS ORDERS ISSUED TO AID
ENTRIES OR RESPONSE ACTIONS
A court order, or a “writ,” issued pursuant to 28
US.C. 1651, has been used to aid an EPA entry
or post-entry activity. Orders issued pursuant to
that statute may combine and employ any and
all judicial prerogatives within the ambit of
Article ILL Thus, a section 1651 “writ” can both
authorize government officials (or even third
persons) to do acts and simultaneously com-
mand whoever may suffer an incursion to allow
and cooperate actively with such authorized
officIals. 70/
Once a court has exercised jurisdiction by issu-
ing an administrative warrant, the court may, if
it later becomes necessary, use the All Writs Act
in aid of its jurisdiction. Therefore, if extended
activities on certain premises will occur or if the
cooperation of the possessor of the premises
will be required (even if only to keep people
away from the survey stakes, sample grids, or
equipment of EPA’s contractor), then an order
or writ may be issued to “aid” the court’s jurisd-
iction. This Is particularly true where warrant
has been executed and returned. In such a case
a writ can “piggy-back” onto the previous war-
rant jurisdiction and be in “aid” of it.. 711
EFFECT OF FEDERAL RULES OF CIVIL
PROCEDURE ON EPA ENTRIES AND WAR-
RANTS
A. Administrative Warrants
While Rule 41 of the Federal Rules of Criminal
Procedure governs aspects of warrants obtained
upon probable cause to enter premises for evi-
dence of or fruits of a crime, the Federal Rules
of Civil Procedure do not expressly address
administrative warrants at all. The courts
instead, on a case-by-case basis, have
-12-
-------
National Environmental Enforcement Journal
May 1989
articulated procedures that may be used for
obtaining administrative warrants. For the most
part, these procedures parallel those under Rule
41. For example, as stated abovc, it is clear that
it is entirely proper for EPA to apply ex parre
for an administrative warrant.
It is equally clear that an injunctive order
enforcing a statutory right of entry may be
obtained only by filing a summons and com-
plaint. The 1986 amendments to CERCLA con-
tain provisions that restrict judicial review,
thereby curtailing the risk that, on a summons
and complaint for entry, collateral issues will be
raised.
B. Writs Under the All Writs Ac:
Traditionally, one applies for a writ under 28
U.S.C. 1651 by filing a Petition ex parte, and
having a Show Cause Order issue thereon. One
can also seek a writ by filing a summons and
complaint. All Writ proceedings are controlled
by the Federal Rules of Civil Procedure, but
their specialized nature tends to induce the
courts to keep such proceedings abbreviated
and narrow.
CONCLUSION
Judicially issued administrative warrants, for
the most part, have proven to be a workable
method for implementing the necessarily far-
reaching post-entry statutory rights that
environmental inspection and detection of
non-compliance involve. To the extent that such
mechanisms arc recognized as being merely a
permutation of warrants used in criminal inves-
tigations, thc problems they pose should be
manageable, if not familiar. They, and the entry
rights whiàh they symbolize, will undoubtedly
remain sorely needed in the fight to discover
and protect the community from the throw-
away practices of our callous and indifferent
selves.
• Mr. Hamill has been the Senior Associate
Regional Counsel for EPA Region 10 for eight
years. For seven years before that he was Chief
of the Legal Support Branch, Enforcement
Division, in Region 10. These comments were
written by the author in his personal capacity.
Pursuant to 40 C.F.R. 3.507(c), no official sup-
port or endorsement by EPA or any other
federal agency is intcndcd and none should bc
inferred. This paper, the topics indicated as
omitted for publication, and original footnotes
in particular have been severely abridged by
the author from a paper first presented for Con-
tinuing Legal Education purposes in October
1984 in Seattle, Washington, and have been
updated through January 1989. The complete
unabridged paper may be obtained by writing
to this journal.
FOOTNOTES
1/ An example of warrantless entry authorized
by statute appears in Donovan v. Dewey, 452
U.S. 594(1981).
2/ Black’s Law Dictionary 1756 (4th cd. 1968).
3/ E.g.. the statutory “rights” may be construed
so as to preclude resort to a warrant as in
Midwest Growers Co-op. v. Kirkemo, 533 F.2d
455 (9th Cir. 1976), or may be narrowly inter-
preted anomalously as happtncd to the Occupa-
tional Safety and Health Administration in In
Re Kuip Foundry, Inc., 691 F.2d 1125 (3d Cir.
1982).
4/ See Donovan v. Hackney, Inc., 769 F.2d 650
(10th Or. 1985), and Donovan v. Mosher Steel
Co.,791 F.2d 1535 (11th Cir. 1986).
5/ See Bunker Limited Partnership v. United
States, No.85- 2133 (D. Idaho 1985), dismissed
as moot, 820 F.2d 308(9th Or. 1987).
6/ See Blackie’s House of Beef, Inc. v. Castillo,
659 F.2d 1211 (D.C. Or. 1981), Bunker Hill Co.
v. EPA, 658 F.2d 1280 (9th Or. 1981), accord
Midwest Growers, supra note 3.
7/ Some courts point to 28 USC 636. See
Marshall v. Chroma 1oy Am. Corp., 589 F.2d
1335 (7th Or. 1979), and In Re Quality Pro-
ducts, Inc., 592 F.2d 611 (1st Cir. 1979). That
view hardly covers all that our feddral courts
have done in the matter of warrants.’ A caveat
must also be noted: Marshall v. Barlow’s. Inc.,
436 US. 307 (1978), authored by Justice White,
is very much the descendent of a number of
cases such as Sec v. City of Seattle, 387 US. 541
(1967), and, decided the same day, Camera v.
Municipal Court, 387 US. 523 (1967). Those
major opinions were also written by Justice
White. Whilc the rationale of such earlier cases
should not be overlooked, they should be tem-
pered by the more precise focus in Justice
White’s opinion in Barlow’s.
8/436 US. 307 (1987). Queries: Under existing
law do state inspectors have a legal right to
obtain federal administrative warrants for
-13-
-------
National Environmental Enforcement Journal
May 1989
entry and post-entry activity from a federal
court or magistrate, at least under statutes such
as 42 Us_c. 6927(a) (RCRA section 3007(a)), 33
USC I318(c) (CWA section 308(c)), and 42
USC. 74 14(c) (CAA section 114(c)), which argu-
ably purport to confer a federal right of entry
directly upon described state officials? Can
federal officials obtain administrative warrants
from state courts?
Opinion: As to both questions, probably “yes”
although nobody as of yet seems to havc tried.
Rationale: Fed. K. Crim. P. Rule 41(a), along
with 18 U.S.C. 3101-3113, arguably purports to
empower judges of state courts of record to
issue warrants for Rule 41 purposes (I.e.. crimi-
nal law enforcement) when sought by federal
officials. By a parity of reasoning (I.e., the
Barlow’s decision was based on principles
under the federal Constitution and thus Is bind-
ing on all states), those same state judges are
“empowered” to issue administrative warrants
to federal officials. (The foregoing reasoning is
an alternate to the view that there is really no
“federal power” conferred as such on state
judges by Rule 41 and in stead, neutral scrutiny
by a state judge of a proposed entry by federal
officials merely satisfies the Fourth Amend-
ment condition precedent for issuance of a
warrant.)
At least one Justice seemingly would have little
problem with state judges issuing federally
valid administrative warrants. In Griffin v.
Wisconsin, 483 U.S. 868 n. 5 (1987), Justice
Scalia noted that the warrant required in
Barlow’s arguably would not have to be “judi-
cially issued.” That intimates a nonjudicial offi-
cial could issue a federal administrative warrant.
A fortiorl, a judge of a state court of record
would implicitly qualify under that view equally
as well as he/she qualifies explicitly under Rule
41.
The reverse situation of an administrative war-
rant federally issued (by a federal magistrate or
district judge) to a state official has not yet
been discussed or raised. The opinion expressed
above is predicated simply upon the existence
of a federal statutory right of entry held by
some state officials under the cited statutes, and
the fact that federal courts have jurisdiction
conccrning such rights under Articic Ill and 28
US.C. 1331 (federal question jurisdiction). A
federal warrant to confirm and validate a
federal right (regardless of who holds it) seems:
clearly within a federal court’s jurisdiction.
9/ See City of Seattle. supra note 7, and
Midwest Growers Co-op v. Kirkemo, 533 F.2d
at 455 (9thCir. 1976).
10/ See CAB v. United Airlines, 542 F.2d 394
(7th Or. 1976), where personnel from the Civil
Aeronautics Board without a warrant, but with
a letter request (arguably equivalent to a sub-
poena) in hand, showed up at United’s office
and requested entry, based on a statutory right,
in order effectively to rummage through
United’s files. United declined. The CAB filed
plenary Suit for injunction. Implicitly, the
resulting decision was a precursor of Barlow’s,
supra note 7. The court ruled that the letter
request issued by the agency was no adequate
substitute for a judicially issued warrant, even if
the letter were functionally equivalent to an
administrative “subpoena.”
11/ During the last two weeks of May 1978, in
addition to Barlo ./s, the Supreme Court also
handed down Zurcher v. Stanford Daily News,
436 U.S. 547 (1978), authored by Justice White
as well as Michigan v. Tyler, 436 US. 499
(1978). A salient point is that these three cases,
all involving an in-depth consideration of
administrative entry problems, were decided by
the same nine justices in the same Supreme
Court term.
12/ The “plan” or “scheme” was not itself
required to be “neutral” or random, but the
basis for the plan was required to be “neutral,”
thus preventing site sdections by persons in the
field.
13/ The use of the term “probable cause”
should be scrupulously avoided in civil matters.
It inevitably results in garbled thinking and
confused analysis. “Reasonable cause”, or some
similar phrase should be used.
14/ Some purists may argue that the Court did
not really say that. In practical effect, the result
is the same. See New York v. Burger, 482 US.
691 (1987).
15/ That message was reiterated in LaDuke v.
Nelson, 762 F.2d 1318(9th Cii. 1985), whcrc the
court ruled that immigration officials could not
engage in warrantlcss “area” scarchc for illegal
aliens in farmer-provided housing shcltcrs or
huts located on various farms in Washington
-14-
-------
National Environmental Enforcement Journal
May 1989
state, even when the farmer-possessor con-
sented thereto.
16/ E.g., whether “authorized representatives”
as used in a statute includes a commercial com-
pany and its employees with whom EPA has a
contract under which the privatc company per-
forms inspections for EPA. See ALCOA v.
United States, No. 80-I 178V (W.D. Wash.
1980), and United States v. Stauffer Chemical
Co.,464 US. 165(1984).
17/ Only one decision has indicated that EPA is
required to follow the Barlow ’s ruling — Pub-
lic Service Co. v. EPA, 509 F. Supp. 720 (S.D.
md. 1981). EPA’s reasons for observing
Barlow’s principles in practice arc twofold:
first, it is less resource consumptive in the long
run to obtain a warrant than it is to litigate the
issue under nine different statutes; second, an
official of the government, in many instances, is
entitled as of right to the issuance of a warrant
that judicially confirms his authority, in his
official capacity, to exercise a substantive right
to enter and to conduct post-entry activities. A
valid warrant gives him absolute Immunity from
liability for activity conducted in conformity
with the warrant.
18/724 F.2d 753 (9th Cir. 1982).
19/ No. 85-21 1-CIV-0-l6 (M.D. Fla. June 10,
1985).
20/ Annotations on administrative warrants
appear in 19 A.L.R. Fed. 736 — DEA warrants
under 21 U.SC. 880; 25 A.LR. Fed. 836 — war-
rants regarding liquor dealers under 26 US.C.
7607; and 54 A.LR. Fed. 474 — OSHA war-
rants under 29 U.S.C. 657(f).
21/658F.2d 1280(9thCir. 1981).
22/ 533 F.2d 455(9th Cir. 1976).
23/ A right of entry may be implicit. One exam-
ple is found in Blackie’s House of Beef, Inc. v.
Castillo,659 F.2d-12 1 I (D.C.Cir. 1981).
24/691 F.2d 1125(3dCir. 1982).
25/42 US.C. 9604(c).
26/ Dow Chemical Co. v. EPA, 749 F.2d 307
(6th Cir. 1984), aff’d, 106 S-Ct. 1819 (1986).
See also Florida v Riley, 57 US L.W. 4126 (US.
Jan. 23, 1989); United States v. Allen, 633 F.2d
1282 (9th Cii. 1980); and 56 A.L.R. Fed. 772.
27/460 US 276(1983).
28/ 466 US. 270(1984). See also United States v.
Dunn, 480 US. 294 (1987).
29/ See. e.g.. Pennsylvania v. Lutz. 516 A.2d
339 (Pa. 1986), vacated and remanded. 55
USL.W. 3643 (1987). In that case, the defen-
dant was charged with several criminal viola-
tions, including obstructing an employee of the
Pennsylvania Department of Environmental
Resources (DER) and obstruction of justice.
The charges stemmed from an incident that
occurred when two DER employees entered the
defendant’s land without warrants to check
reports of the presence of solid waste. The
defendant refused to allow the search, confis-
cated a camera and sample bottles, and ordered
the employees off the property. (The following
day the search was conducted on consent.) The
Pennsylvania Supreme Court subsequently
affirmed a trial court order dismissing the
charges on the ground that the warrantless
search provisions of the Pennsylvania Solid
Waste Management Act were violative of the
Fourth Amendment. The case ultimately was
appealed to the U.S. Supreme Court but, after
certiorari was granted, it was remanded to the
Supreme Court of Pennsylvania for further
consideration in light of Dunn, supra note 28.
The Pennsylvania Supreme Court then in turn
remanded the matter to the Westmoreland
County Common Pleas Court for trial, where
on January 11, 1989, the defendant was con-
victed on two counts each of obstruction of jus-
tice and harrassment..
30/ 724 F.2d 753(9th Or. 1982).
31/509F.Supp.720(S.D.Ind. 1981).
32/ 482 U.S. 691 (1987). The three-prong test
for warrantless entry on premises of!”closcly
regulated” businesses explicated in Burger is
(1) that there exists a “substantial government
interest” justifying the statutory “close egula-
tion” under which the entry is made; (2) that the
warrantless entry is necessary to further the
regulatory scheme; and (3) that the “certainly
and regularity” of the inspection program
described in the language of the statute pro-
vides “a constitutionally adequate substitute for
a warrant,” i.e., the statute itself informs the
public at large that those who engage in such a
business will be so closely regulated and
inspected that they cannot expect . to have
privacy on premises where such business is con-
ducted.
-15-
-------
National Environmental Enforcement Journal
May 1989
33/ See Bunker Hill Co. v. United States, 658
F.2d 1280 (9th Cir. 1981); B&B Chemical Co. v.
United States, 806 F.2d 967 (11th Cir. 1986);
and National Standard Co. v. Adamkus, No
87C5516 (ED. III. 1988).
34/ 436 US. 547(1978).
35/ In Re SD. Warrcn, 481 F. Supp. 491 (D.
Me. 1979). See also Ingersoll-Rand Co. v.
Donovan, 540 F. Supp. 222 (M.D. Pa. 1982).
36/ The characteristics of an ex pane proceed-
ing are rarely explored. Primarily, it is a right
of an agency to proceed and obtain a warrant
without having that process impeded by inter-
vention of any other person. See, In Re S.D.
Warren. supra note 35. One who seeks to take
judicial action against the warrant properly
should commence his own separate civil action
by filing a complaint under Rule 3 of the
Federal Rules of Civil Procedure after execu-
tion of the warrant has begun. The suggestion
made in the B&B Chemical Co. decision, supra
note 33, that the matter should be filed with the
same magistrate who issued the warrant is
incorrect. A filed matter can be “referred” to a
particular magistrate only by order of the
court, as is the case with any civil action. The
court should neither allow nor recognize any
less formal challenge to the warrant proceed-
ing, such as interloping “motions” to quash,
cancel, or recall a warrant, none of which is
legally recognized by the federal rules. Such a
civil action, being much like a Return Of Pro-
perty Motion under Rule 41, should entail only
very abbreviated proceedings. See National
Standard Co., supra note 33.
37/ The Administrative Procedure Act (A PA) in
5 U.S.C. 704 requires that there be no other ade-
quate remedy in a court before a deprivation
such as a taking may be subjected to “early”
judicial review under the APA.
38/28 US.C. 1491.
39/ See Zurchcr v. Stanford Daily News, 436
Us. 547 (1978), and Hannah v. Larche, 363 Us.
420(1960).
40/ 658 F.2d 1280 (9th Cir. 198 I).
41/28 US.C. 1651.
42/ 806 F.2d 967 (11th Cir. 1986).
43/ The Supreme Court in Bivens v. Six Unk-
nown Agents, 403 US. 388 (1971), ruled that a
federal constitutional tort had occurred when
unknown FBI agents burgled private premises
clandestinely and without a warrant. Most feel
that the case established a rule that intentional
government conduct, reasonably recognizable
as a violation of some person’s constitutional
rights, is a constitutional tort separate from a
statutory wrong under 42 US.C. 1983. Whether
Bivens as a practical matter will survive the
Court’s more recent decision in Anderson v.
Crcighton, 97 L. Ed 2d 523 (1987), remains to
be seen.
44/ Unpublished. (ED. Pa. 1985).
45/See 67 A.L.R. Fed. 724.
46/See United States v. Molt, 589 F.2d 1247 (3d
Cir. 1978) Lo-Ji Sales, Inc. v. New York, 442
US. 319(1979); United States v. Miller, 589 F.2d
1117 (8th Cir. 1978); United States v. Dennis,
625 F.2d 782 (8th Or. 1980); and United States
v. Kampbell, 574 F.2d 962(8th Cir. 1978).
47/468 US. 897(1984).
48/ Ruckelshaus sr. Monsanto Corp., 467 US.
986 (1984), and United States v. Riverside Bay-
view Homes, Inc., 474 US. 121 (1985). This
issue was addressed in the 1986 CERCLA
amendments which, in effect, confirmed
eminent domain power in EPA for CERCLA
purposes.
49/ See United States v. Bunker Hill Co., No.2-
75-57, 10 Env’t Rep. Cas. (BNA) 2071 (D. Idaho
1976); see also In Re Bunker Hill Co., No. 80-
2087, 15 Env’t Rep. Cas (BNA) 1063 (D. Idaho
1980) (conclusion of law No. 9), aff’d on all
poin:s,658F.2d 1280(9 hOr. 1981).
50/ See In Re Bunker Hill Co.., su ra note 49
(conclusion of law No. 9).
51/ If any restriction on EPA taking of photo-
graphs or other usc of mechanical recordings is
insisted upon prior to or at the time of entry,
then that is treated as a refusal of dnsent, and
EPA can obtain a warrant to permit it to con-
duct the inspection, with specific references to
such recording devices as it expected to use.
EPA’s right to photograph during inspection
without restraint has been authoritatively con-
firmed in In Re Bunker Hill Co., Id. (conclu-
sions of law No. (10 and No. II), which were
totally affirmed.
52/ Consent revocation (ye! non) and the effect
of putative revocation have evoked diverse
-16-
-------
National Environmental Enforcement Journal
May 1989
appellate views, as reflected in Mason v. Pul-
ham, 557 F2d 426 (5th Cir. 1977), and United
States v. Homburg, 546 F.2d 1350 (9th Cit.
1977), holding that consent is rcvocable and
revocation is legally effective to restrain
government action. Contra, United States v.
Hezbrun, 723 F.2d 773 (11th Cir. 1984); United
States v. Haynie, 637 F2d 227 (4th Cir. 1980);
and United States v. Skipwith, 482 F.2d 1272
(5th Cir. 1973), which state the view that, in
some instances., once Consent is given it is irre-
vocable, or that attempted revocation of con-
sent is inoperative.
53/ In Re Bunker Hill Co., supra note 49 (con-
clusion of law No. LI).
54/716F.2d 1187(7thCir. 1983).
55/ 15 Env’t Rep. Cas. (BNA) 1063.
56/ Bunker Limited Partnership v. United
States., No. 85-2133 (D. Idaho 1985). The opera-
tor of the facility argued that EPA cannot
‘ r’ cnts under a warrant, despite
EPA’s holding of a civil warrant for such pur-
poses as well as the existence of an underlying
statute that indicates to the contrary. See I Nat’l
Envtl. Enforcement J. 24 (Nov. 1986).
57/ As to documents being reached by a crimi-
nal search warrant under Fed. R. Crim. P.
41(h). see Donovan v. Burlington Northern,
Inc., 694 F.2d 1213 (9th Or. 1983); Hem Iron
Works, Inc. v. Donovan, 670 F.24 838 (9th Cir.
1982); United States v. Washington, 782 F.2d
807(9th Cir. 1986) West Point-Pcpperell, Inc. v.
Donovan, 689 F.2d 950 (11th Or. 1982). The
United States Court of Appeals for the Seventh
Circuit has ruled against OSHA on the point in
Donovan v. Fall River Foundry Co., 712 F.2d
1103 (7th Cir. 1983), but in favor of EPA under
the Clean Air Act in CED’s, Inc. v. EPA, 735
F.2d 1092(7th Or. 1985).
58/ 691 F.2d 1125(3clCir. 1982).
59/ 387 US. 541 at 544-545.
60/ No. 85-3 133 (D.ldaho 1985) dismissed 820
F.2d 308 (9th Cir. 1987).
61/ 387 F2d 849 (3d Cir. 1968). -
62/ Andersen v. Maryland. 427 US. 463, 474
(1976).
63/ Congrcss has been less than skillful in draft-
ing entry right provisions and vacillates from
time to time between penalizing refusals and
not doing so. The real problem seems to be that
the theory and practice of warrants is not very
well understood by those preparing legislation,
regulations, and policies concerning warrants.
64/ Supra note 49.
65/ If a possessor is constitutionally privileged
to insist upon presentation of a judicially issued
warrant before the entry is effected, he cannot
simultaneously be penalized for exercising such
a privilege even if the exercise of the privilege
entails disregarding an administrative order
commanding him to allow entry. Accordingly,
the difficulty of using unilateral orders to
obtain entry should be obvious. But see Justice
Scalia’s views in Griffin v. Wisconsin set forth
in note 8,supra.
66/ Unpublished (ED. Pa. 1984).
67/ 401 US. 402(1971).
68/ 436 U.S. 547(1978).
69/ In the 1986 amendments to CERCLA,
entries of BPP premises by EPA are authorized
to EPA in section 104(eX3XD), which says that
at reasonable times EPA is authorized to enter
any vessel., facility, establishment, or other place
or property where entryjs ne.eded to determine
the need for response or the appropriate
response or to effectuate a response action
under CERCLA.
70/ The All Writs Act enables a federal court to
craft whatever type of order the case requires
so long as no constitutional provision is
violated. See United States v. N.Y. TeL Corp.,
434 US. 159 172 (1977), where the telephone
company was doing far more than merely fur-
nishing the government with evider e. There
the court authorized government officials to
designate some equipment of the bystander
telephone company and have tracing equip-
ment appended. It commanded the telephone
company not only to allow that, but, to furnish
the manpower and expertise to accomplish it.
See Adams v. United States ex rel. McCann,
317 US.269,273(1942).
71/ See Plum Creek Lumber Co. v. Hutton, 608
F2d 1283 (9th Cir. 1979), and 58 A L.R. Fed.
704
-17-
-------
Memomndum
- -
Subj,ct
Procedures for Authorizing Application ril 3, 1987
for Civil Search Warrants Under CERCLA
To All EES Attorneys From Day .
Chi , Eivironmentai
En orc ment Section
Under S 104(e) of CERCLA, as amended by SARA, the
United States may seek access by warrant, administrative order,
or court order. If access is obtained by administrative order,
the appropriate documents are issued by relevant client agencies.
If access is to be obtained by court order, then the Assistant
Attorney General of the Land and Natural Resources Division mutt
approve the complaint, upon referral from the relevant client
agency according to ordinary procedures. For access to be sought
through application on a civil CERCLA warrant, 1 the instant
memorandum will confirm the procedures to be used by the
Department of Justice.
Under ¶5.320-A-2 of the U.S. Attorney’s Manual,
application for warrant under CERCLA may not be handled
unilaterally by the U.S. Attorneys. Applications for such
warrants must be coordinated through the Environmental
Enforcement Section.
Clearance through the Environmental Enforcement Section
is important for a variety of reasons. First, the nature of the
governmental activities involved under CERCL civil warrants may
be much broader and last considerably longer than an inspection
under the other federal environmental regulatory statutes.
Typically the latter require only a few days or weeks to conduct
routine environmental sampling. Under CERCLA, access may be
sought under a warrant for not only sampling, but even simple
1 The memorandum does not cover procedures for seeking a
criminal search warrant where a CERCLA violation may be
involved. All such matters are to be referred to the Director,
Environmental Crimes Unit, EES.
-------
—2—
removal—type activity, e.g., security/fencing, limited drum
removal. The greater relative complexity of the governmental
activity involved can be expected to provoke more challenges to
CERCLA civil warrants than those under other statutes and the
issues raised by CERCLA warrants may be much more complex.
Second, this is a relatively new and vital area of the lpw. We
must ensure that maximum efforts are made to develop this
critical area of the law in an excellent manner. EES lawyers
must make all reasonable efforts to ensure that exercises of the
civil warrant authority under CERCLA will be vindicated by the
federal courts, through proper presentation of facts and legal
arguments by Departmental attorneys with experience in this area.
Finally, since our experience has shown that judicial challenges
to civil CERCLA warrants tend to move very rapidly, sometimes on
an emergency motion basis, EES needs to work closely with client
agencies on these matters so that the Division’s Appellate
Section is advised and prepared with sufficient lead time to
expeditiously address appellate proceedings.
Coordinating these warrant applications through EES
must be done on an expedited basis so that client agencies’
program objectives are achieved. Moreover, our resources must
not be consumed by duplicative work. Balancing the needs for
careful warrant application preparations with that for
expeditious handling of these matters, we will use the fo1lowinq
procedures:
1. The client agency will telephonically notify the
relevant EES Assistant Chief. or Senior Lawyer when the Agency
plans to seek a civil warrant.
2. The client agency will follow-up the request by
expeditiously transmitting a short memorandum concisely
explaining why the warrant is needed with a draft copy of the
warrant application and supporting affidavits.
3. Upon receipt of the telephonic notification or
written request, whichever first occurs, the EES Assistant Chief
or Sr. Lawyer will arrange for either an EES staff attorney or an
AUSA to handle the review and prosecution of the application.
Unless a dispute develops between EES/AUSA personnel and the
client agency, the EES Assistant Chief or Sr. Lawyer may approve
the application. If such a dispute develops, it must be brought
to the attention of the Chief or Deputy Chief, EES for
resolution.
-------
—3—
4. Handling of these matters is to be afforded
priority on our docket. Moreover, the Chief or Assistant Chief
of the Appellate Section shall be advised of each application
request by the EES Assistant Chief or Sr. Lawyer as soon as
possible after notification by the client agency, so that
Appellate can be prepared to handle expeditiously appeal matters.
5. All civil actions to enforce civil CERCLA warrants,
by way of application for civil contempt or other judicial
orders, shall be authorized in writing by the Assistant Attorney
General. Such actions shall be afforded highest priority on the
docket.
For general advice/guidance on handling CERCLA civil
warrant matters, contact John Fleuchaus, OR -Waste, 382-3109.
Attachment
-------
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
IN THE MATTER OF: )
)
) Case No. 89—444128
)
WARRANT AND ORDER
FOR ENTRY AND
INVESTIGATION
) PURSUANT TO SECTION
3007 OF THE RESOURCE
) CONSERVATION AND
RECOVERY ACT, AS
) AMENDED, 42 U.S.C
) §6927, SECTION 308 OF
) THE CLEAN WATER ACT,
) AS AMENDED, 33 U.S.C.
) §1318, SECTION 114 OF
THE CLEAN AIR ACT, AS
) AMENDED, 42 U.S.C.
) §7414, AND SECTION 11
) OF THE TOXIC SUBSTANCES
AND CONTROL ACT, AS
) AMENDED, 15 U.S.C.
) §2610
TO: J. Scott Gordon, Florida Coordinator for the Waste
Compliance Section, United States Environmental Protection
Agency, (hereinafter referred to as “EPA”), Region IV, any
duly designated officer or employee of the EPA-National
Enforcement Investigations Center, any other duly designated
officer, employee, or representative of the Administrator of
the EPA.
-------
Application having been made by the United States Attorney
based upon an affidavit made before me, by J. Scott Gordon on
behalf of the EPA for a warrant of entry, inspection,
reproduction of records, and sampling to determine compliance
of (hereinafter referred to as “the
premises”, and which is an entity more particularly described
in the attached Affidavit, which is hereby incorporated by
reference) with the Resource Conservation and Recovery Act,
the Clean Water Act, the Clean Air Act, the Toxic Substances
Control Act, as cited above; and, the court being satisfied
that there has been a sufficient showing that reasonable
legislative or administrative standards for conducting an
inspection and investigation have been satisfied;
IT IS HEREBY ORDERED that EPA through its duly
designated officer, J. Scott Gordon and any authorized
attorney or representative of said Agency is hereby entitled
and authorized to have entry upon the premises.
IT IS FURTHER ORDERED that entry, inspection,
reproduction of records, and sampling shall be conducted
during daylight hours within reasonable limits, and in a
reasonable manner.
IT IS FURTHER ORDERED that the •warrant shall be for the
purpose of conducting an entry, inspection, reproduction of
records, photography, and sampling pursuant to the laws cited
above consisting of the following activities
1. Entry to, upon, or through the above described
2
-------
premises including all buildings, structures, pits, open
ground, and other sites where hazardous wastes are, or have
been, generated, stored, treated, or disposed of, or
transported from.
2. Inspection, sampling, photography, and
investigation of the premises.
3. Access to company records shall include, but not
be limited to, any record required to be kept under the
following federal laws:
42 U.S.C. §6901, et sea. , as amended
15 U.S.C. §2601, et sea. , as amended
33 U.S.C. §1251, et sea. , as amended
42 u.s.c. §7401, et seq. , as amended
4. Access to and reproduction of all records
(including computer records) pertaining to or relating to
hazardous wastes and processes which generate hazardous
wastes, wastewater discharge, air emissions, and handling of
PCB’ s or PCB equipment. Any other records which pertain ‘to
, and/or the premises, compliance
with the above—cited laws may be reviewed and reproduced.
5. To take any further activities deemed necessary by
EPA to adequately inspect and sample the property as
authorized by any of the federal laws referenced above in
paragraph 3.
IT IS FURThER ORDERED that if records are reproduced
off the premises, (1) any such record so removed shall be
3
-------
properly receipted for by the representatives of the EPA, (2)
may send one of its employees to
accompany the ãforementioned representatives of EPA during
such reproduction, and (3) such records shall be returned
within 72 hours of the time they are first removed from the
premises.
IT IS FURTHER ORDERED that the United States of
America, EPA, through its duly designated representative or
representatives is hereby entitled to and shall be authorized
to seal the above described records in their containers, or
in containers to be provided, until such records can be
copied, provided that (1) sealed records which are necessary
for the conduct of the everyday business affairs of
and/or the premises, shall be LeVJ.eW U
and/or copied and unsealed first, (2) any other records which
are sealed shall be reviewed and/or copied and unsealed before
other records are examined and/or copied, and (3) the seals
placed on the containers which liold the records may be broken
only by a person authorized to place the seals or pursuant to
court order.
IT IS FURTHER ORDERED that EPA representatives may halt
and sample any waste shipments. -
IT IS FURTHER ORDERED that a copy of this warrant shall
be left at the premises at the time of investigation.
IT IS FURTHER ORDERED that an inventory identifying any
material removed from the premises shall be furnished by the
4
-------
EPA to the owner, operator, or representative of
and/or the premises.
IT IS FURTHER ORDERED that this warrant shall be valid
for a period of 10 days from the date of this warrant.
IT IS FURTHER ORDERED that a prompt return of this
warrant shall be made to this court within ‘ 5 days from the
date hereof, showing this warrant has been executed, and the
entry and activity authorized herein has been completed within
the time specified.
u t
United States Magistrate
L7 )‘
S o O.M.
5
-------
RETURN OF SEARCE WARRANT
CASE NO. 89—444128
1. DATE OF WARRANT: September 27, 1989
2. DATES OF WARRANT EXECUTED: Warrant was executed on October
2, 3, and 4, 1989.
3. A copy of the warrant was presented to
upon arrival on October 2, 1989.
4. An inventory ot uucwuents copied and environmental samples
collected receipt was presented to Mr.
igned the receipt and accepted
a copy of the inventory upon completion of the warrant.
5. A total of twenty—six documents were either taken and returned
or copied on site. These documents included and pertained to
the following subjects:
Chemical Location List
Florida Department of Regulation correspondence
Safety Meeting notes
Water testing information
Solvent location by building
EPA Facility Identification Number
Chemical Inventory
Lab reports
Operational procedures
Procedures for control and reporting of spills and accidental
discharges
Maryland Assemblies, Inc., equipment list
Handwritten maintenance checklist
Blueprint of existing site
6. A video tape Of the / ., facility
including buildings and disposal areas was produced. The
video tape was a standard 2/4/6 hour tape and was half filled.
Also, four rolls of 35 mm film were shot of the facility.
-------
7. A total of nineteen environmental samples were collected on
site. The samples taken are as follows: thirteen samples of
soil/contaminated media/sludge and seven liquid samples. A
set of split samples was offered and accepted by
\
I swear that this inventory is a true and detailed account of
the property taken by me on this warrant.
J. Scott Gordon
EPA Enforcement Officer
Region IV
Subscribed, sworn before me, and returned to me on this date.
QcI- 4u7 I 1 JJj/ c 4
DATE UNITED STATES MAGISTRAT
-------
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
In the Matter Of: )
)
) Civil No.
)
i ) Application for an
) Administrative Warrant
)
)
Now comes a duly designated representative of the
Administrator of the United States Environmental Protection
Agency (hereinafter referred to as “E.P.A.”), by and through
Charles S. White Assistant United States Attorney for the
Northern District of Florida, and applies for an
administrative warr ” 1 enter, inspect, reproduce records,
and sample at the /, a munitions
manufacturor and assembly faculty located on Highway 316A,
), Florida, to determine compliance with
‘cne 1 . . ..ation and Recovery Act (RCRA), the Clean
Water Act (CWA), the Clean Air Act (CAA), and the Toxic
Substances Control Act (TSCA) as authorized by Section 3007
of RCRA, 42 U.S.C. §6927, Section 308 of CWA, 33 U.S.C. §1318,
Section 114 of CAA, 42 U.S.C. §7414, and Section 11 of TSCA,
15 U.S.C. §2610. In support of this application, the duly
designated
-------
representative of the Administrator respectfully submits an
affidavit and proposed warrant.
Respectfully submitted,
K. M. MOORE
United States Attorney
CHARLES S. WHITE
Assistant U.S. Attorney
Northern District of Florida
227 N. Bronough St., Ste. 4014
Tallahassee, Florida 32301
(904) 681—7360
-------
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
IN THE MATTER OF ) TALLAHASSEE
) Case No. 89—444128
)
)
)
) Affidavit in Support of
) Application for an
Administrative Warrant
State of Florida:
County of Taylor:
I, James Scott Gordon, being duly sworn upon his oath,
according to law, deposes and says:
1. I am a compliance/enforcement officer with the
United States Environmental Protection Agency (hereinafter
referred to as the “EPA”);, Region IV, and have been duly
designated by the administrator of the EPA for the purpose of
conducting inspections pursuant to all Federal laws
administered by the EPA. I hereby apply for an administrative
warrant of entry, inspection, reproduction of records, and
sampling of premises in the possession, custody, or control
of
-------
2. \f (hereinafter referred
to as “the premises”), is a munitions manufacturing and
assembly facility whose business premises are located on Rural
Route 1, on the vest side of Puckett Road, ten miles south of
and marked by a stone monument etched with
their name. The facility rests on approximately 513 acres of
heavily wooded, low lying, swamp land and contains about
eighty-seven buildings.
3. In March, 1989, I was approached by an official of
the U.S. Occupational Safety and Health Administration (OSHA)
concerning possible violations of environmental laws at the
premises.
4. On April 19—21 1989, I reviewed OSHA files in
Jacksonville, Florida, relating to manufacturing operations
at the premises. I discovered that the premises utilized
large quantities of industrial, solvents which are common to
ordnance manufacturing. OSHA’s records of the premises
indicate that wastes and industrial solvents were contained
and disposed of at various locations on the premises.
Photographs of production buildings on the premises indicate
that wastes were vented into the atmosphere from production
areas. Review of operations records of the premises indicate
that solvent—containing materials were baked in drying ovens
as a part of the production process. Furthermore, corroded
chemical drums were observed in areas of dense vegetation.
Drums containing hazardous wastes must be stored in compliance
2
-------
with RCRA.
5. The OSHA records reveal that
and/or the premises, produces, in part, grenade fuses,
flare columns, 40mm cartridges, squibs, impulse cartridges,
Mill and M119 simulators (booby traps). In the production of
pyrotechnic ordnance, the facility uses incendiary compounds
such as lead azide, potassium percholorate, antimony sulfide,
magnesium, and black powder. The ordnance production requires
the use of industrial resins and large volumes of solvents
such as methylene chloride, toluene, methyl ethyl ketone,
vinyl chloride and xylene.
6. An adjacent facility located approximately one mile
south of the premises engaged in operations similar to those
of the premises, has historically produced hazardous waste.
A review of EPA files revealed that this facility has notified
EPA of its hazardous waste activities and is a fully regulated
large quantity generator of hazardous waste. This facility
produces metal bearing and solvent bearing waste streams that
are transported from their facility to a licensed hazardous
waste disposal facility. EPA records do not show any movement
of hazardous waste from the facility to the premises.
7. On May 23, 1989, I accompanied Ashwin Patel, a
representative of the Florida Department of Environmental
Regulation (FDER), to evaluate the location of an area
proposed in an emergency permit application from
and/or the premises, for thermal treatment
3
-------
of explosive powders. In the area designated for thermal
treatment, a strong solvent smell was noted from the freshly
plowed plot. Evidence of metal drum debris was also observed
in this area. On the perimeter of the area was evidence of
40 to 50 fifty-five gallon drum indentions in the sandy soi I.
suggesting the recent storage of drums in the area. The visit
was limited in scope to the 1/2 acre treatment area.
Industrial equipment was also scattered around the perimeter
of this treatment area. I was informed that some of this
machinery was being used for parts.
8. During the site visit, Roger Williams, Safety
Manager for and/or the premises,
informed me that the company produces only 5 gallons of
acetone waste per year which is reused, therefore, no
hazardous waste has ever been transported of f site for
disposal.
9. Under the Resource Conservation and Recovery Act
(RCRA), spent solvents such as methylene chloride, acetone,
toluene, methyl ethyl ketone, vinyl chloride, and xylene are
considered hazardous wastes under 40 C.F.R. §261. These
wastes must be properly managed and disposed of at a permitted
hazardous waste facility. To treat, store or dispose of
hazardous waste a facility must notify EPA of such activity,
must apply for a permit, and obtain a permit prior to such
activities.
10. I have reviewed the Region IV permit files and
4
-------
and/or the premises, has failed to
obtain any of the permits required under RCRA to manage its
hazardous wastes. In addition, I have made a full review of
FDER’s files and have maintained for the past several months
almost daily contact with Ashwin Patel of that agency. M ’
investigation reveals that, with the exception of the
emergency permit for thermal treatment issued in July, 1989,
has failed to obtain any of the
permits required under state law.
11. Based on the above statements I believe that
and or the premises, is in
violation of the permitting requirements of RCRA, as well as
other requirements governing the management of hazardous
wastes.
12. I have reviewed EPA Region IV records pertaining
the Clean Water Act (CWA) and Clean Air Act (CAA).
has never sought a permit under either of
these authorities. Over the past six years, I have
participated in the inspection of over twenty-five munitions
manufacturing facilities conducting similar operations to that
of and/or the premises. Based on
my experience I would expect that a companyof this type and
size would discharge pollutants such as xylene, toluene,
acetone, and methylene chloride to the environment that would
subject it to the requirements of the CWA and CAA.
13. Industrial equipment was observed around the
5
-------
perimeter of the thermal treatment area. Prior to 1982,
industrial equipment of this sort made use of polychiorinated
biphenyls (PCB) in the hydraulic systems. PCBs and equipment
containing PCBs are regulated under the Toxic Substances
Control Act (TSCA). The industrial equipment observed on the
premises appear to be the type manufactured in the 1950’s and
1960’s and are therefore, likely to contain PCBs. Based upon
my observations at the time of the site visit, no effort had
been made to comply with TSCA requirements. Specifically, the
equipment was not labeled and there was no indication of the
removal of PCB5.
14. on April 12, 1989 and subsequently during the OSHA
file review of April 19-21, 1989, OSHA officials informed me
that - - ., and/or the premises, had
denied OSHA inspectors access tb its facility on two separate
occasions, On both of these, occasions OSHA officials were
compelled to obtain administrative search warrants. As a
result, OSHA no longer seeks consensual entry to the premises,
and obtains a search warrant prior to conducting any
inspection. I believe that EPA will also be denied access
without a warrant.
15.
On September 27, 1989, ‘I spoke with a former
employee of regarding the disposal
of solvents namely acetone, xylene, toluene and methylene
chloride and ordnance at the facility. The former employee
stated that solvents were routinely poured out onto the ground
6
-------
after each shift adjacent to each production building or
placed in barrels. His description of one of the areas
matches my observations during my site visit with FDER for the
purpose of the emergency permit. The waste powder which
accumulated on the floor was swept outside and any large piece
of ordnance and solvents were picked up and taken to an on
site “burning area” to be set on fire on a weekly basis. The
employee also stated that signs stating “Not for drinking”
were painted over whenever a regulatory inspection was
anticipated. These signs would be restenciled after the
inspection teams left.
16. I reviewed aerial photographs taken of the
premises during June 1989. The photographs reveal dozens of
fifty-five gallon drums scattered around the premises. In
addition, four burn pads can be identified on the premises.
Burn pads are small clearings upon which powder, ordnance and
solvents are disposed of by burning. The burn pads observed
in the photographs were black with soot indicating recent
usage. These burn pads would require hazardous waste
treatment permits prior to usage by the premises.
17. The entry, inspection, reproduction of records,
and sampling will be carried out with reasønable promptness,
and a copy of the results of analyses performed on any samples
or material collected will be furnished to the owner,
operator, or agent in charge of the subject premises. If
requested, a portion of each sample will be provided.
7
-------
18. A return will be made to the court at the
completion of the inspection, reproduction of records, and
sampling.
Environmental Engineer
Waste Management Division
Region IV
United States Environmental
Protection Agency
Before me, a notary public of the State of ,
County of , on this day of________
19_, personally appeared , and upon oath
stated that the facts set forth in this application are true
to his(her) knowledge and belief.
A Notary Public of__________
My Commissions Expires
8
-------
352
881 FEDERAL REPORTER. 2d SER1ES
did not abuse its discretion in revoking the
defendant’s probation and sentencing him
to fi e years’ imprisonment on the bank-
ruptcy charges The judgment of the dis-
trict court in Appeal No 88—2912 is af-
firmed
CON CLUSI ON
The district court did not abuse its discre-
tion in den ing David Barber’s application
for a writ of error coram nobis to vacate
his conviction for mail fraud Similarly,
the district court did not abuse its discre-
tion in re oktng the defendant’s probation
upon determining that he had violated the
terms of his release Accordingly, both
judgments of the district court are af-
firmed
AFFIRMED
I UMtt Yt!LH
NATIONAL—STANDARD COMPANY,
Plaintiff—Appellant,
Valdas V. ADAMKUS, as Regional Ad-
ministrator of the United States Envi-
ronmental Protection Agency, Lee M.
Thomas, as Administrator of the United
States Environmental Protection Agen-
cy. Harding—Lawson Associates, and H.
and K,W. Brown, Defendants—Appel-
lees.
No. 88—1833.
United States Court of Appeals,
Seventh Circuit
Argued Nov 10, 1988.
Decided July 17, 1989
Owner of hazardous waste facility
brought action challenging Environmental
decision consiiiutes a violation of the double
jeopardy clause of the Constituiion See Appe!-
lants Br at 32—34 This argument is meritless
In Serf ass v Linued States, 420 US 377.95 SCt
1055, 43 LEd 2d 265 (1975). the Court stated
that jeopardy does not attach “until a defendant
is ‘put to trial before the trier of facts, whether
the trier be a jury or a judge” 420 US at 388.
Protection Agency’s inspection of tt ,. —
ises The United States District C1UI I
the Northern District of Illinois, Patti
Plunkett, J , 685 F Supp 1040, upht II -
spection, and owner appealed The Coir ‘
Appeals, Ripple, Circuit Judge, helil .,.
Resource Conservation and Recovers -
inspection provision authorized En r-
mental Protection Agency to enter and
spect facility
Affirmed
1. Federal Courts 622, 635, 640
Environmental Protection Agi
waived issue of whether eriv tronme ,
case was properly transferred from \\
em District of Michigan to Northern
trict of Illinois, where EPA failed to ohj
to transfer when it was made, did not
review of transfer order in Sixth Circuit
and did not move foi’ retransfer 28 , ‘-
C A § 1404(a), Fed Rules Cr Proc Ruk
41(a), 18 IJSCA
2. Federal Courts ‘ ‘l3.25
Action challenging Environmental Pro
tection Agency’s inspection of hazardou
waste facility pursuant to administratri e
search warrant was not moot after EP
analyzed samples obtained in search, where
further inspections to ensure safe storage
and disposal of hazardous waste at facilit.
were likely Solid Waste Disposal Act
§ 3005(i), 3007(e), 3008(h), as amended, 42
U S C A. §% 6925(i), 692 ’7(e), 6928(h)
3. Health and Environment e 25.5(10>
Resource Conservation and Recover’s
Act’s inspection provision authorized En’s -
ronmental Protection Agency to enter and
inspect interim status hazardous waste fa-
cility, even if it had not been proven that
hazardous waste had actually been re-
leased from the facility Solid Waste Dis-
95 SCi at 1062 (quoting United States v Jorn,
400 US 470, 479,91 SO 547.554,27 LEd2d
543 (1971)) Here, Mr Barber was never put to
trial on a violation of seciton 1503 See aLSO
Thompson v Retvit . 746 F 2d 397, 399-400 (7th
Or 1984), Gert. denied, 471 US 1103, 105 SCL
2332, 85 LEd2d 849 (1985)
-------
pii*1 Act, § 3007(a), ds dilI ruled. U s
6927(a)
i., earches and SeI,.tjrrM c ’l29
- Is order for adniini ,r.dive search war-
to issue, there riuui4 1 h specific cvi-
es of existing vioIaLI 1i, or search war-
ImuSt be part of gin’ r.tl neutral admin-
the plan U S ( A iurust Amend 4
S Searches and SeI,ureM ‘l29
Affidavit of Eriviri,,1ti Pr(,tectlon
AgencY geologist whu lI,LiI r,uadc i-,ual in-
.pection of hazard01i w,tslc facilit provid-
.d probable cause for w.Lrr,Lnt authorizing
pling at facility, ; l fidav’t explained
virlous known hazarihuuis wastes at facility
sid iffiant’s observ:LtI I .tt visual inspec-
dos, and included phiilngr.tJ>hs of v. hat ap-
to be dead vig i .Iat ion and leaking
bs,rels. Solid Wa uIi l)isposal Act,
• 3007(a), as anwilil’ ’l, 42 U S C A
$ 6927(a), US C A Cciiisl Amend 4
I Searches and Sei,ure ’4 ‘ ‘I29
- ‘ Resource Conserv:It ion and Recovery
Adrauthorized EnvirolinienLtl Protectior
Apt cy to take backgroiili(l sample when
specting hazardous wastc facility for vio-
IldOns , so that adniiiir ,(r.uIiVC warrant au-
thorizing such sampk”’. Was not overbroad
Sobd Waste Disposal Act, § 3007(a), as
S snded, 42 U S C \ (;927(a), U S C A
CflStAiTi id 4
7. Searches and Sci/ures ‘I29
- Environmental l’rotectiOfl Agency
use ex parte piocce(ling in obtaining
dnIstratwe search warrant authorizing
hipection of hazardous waste facility, de-
*tS pendency of ei ii action challenging
As authority to coiidiict such inspection
Waste Dispos.il Act, § 3007(a), as
led, 42 U S.C.\ * 692’7(a)
ircheg and Se,,ure I29, 199
recluding owner of hazardous waste
from pursuing discovery of admin-
ye search warrant application or ob-
to cliallciige factual asser-
_Javit in support of warrant was
2 of discretion Solid Waste Dis-
t. § 3007(a). as amended, 42 U.S.
— 69 27(a).
353
Louis M Rundio, Jr, Robert J Siobig,
i\4cDermott, Will & Emery, Chicago, Ill
for plaintiff-appellant
Anton R Valukas, Office of U S Atty,
Nancy K Needles, Chief, Civ Div, Gail C
Gii’isberg, Asst U S Atty, Chicago, Ill,
William B Lazarus and Robert L Kiar-
quist, Dept of Justice, Lands Div, Appel-
late Section, Washington, D C, James R
Arnold, Graham & James, San Francisco,
Cal, for defendants-appellees
Before COFFEY, RIPPLE, and
KANNE, Circuit Judges
RIPPLE, Circuit Judge
This case involves Environmental Protec-
tion Agency (EPA) inspections of two facili-
ties owned by National—Standard Company
(National—Standard) in Niles, Michigan. In
its original declaratory judgment action,
the appellant challenged whether the Re-
source Conservation and Recovery Act
(RCRA), as amended by the Hazardous and
Solid Waste Amendments of 1984 (HSWA),
42 U S C § 6901 et seq., authorizes EPA
to inspect the National-Standard facilities.
The district court upheld EPA’s inspection
authority, and granted the agency summa-
ry judgment. It also denied National—Stan-
dard’s discovery motion. We now affirm.
I
BACKGROUND
National—Standard is a Delaware corpo-
ration that manufactures wire products at
its Lake Street and City Complex facilities
located in Niles, Michigan National—Stan-
dard’s manufacturing process generates,
and the company stores, materials such as
hydrochloric acid, sulfuric acid, and alka.
line wastes. These by-products are within
the RCRA definition of “hazardous waste”
The statute defines hazardous waste as
a solid waste, or combination of solid
wastes, which because of its quantity,
concentration or physical, chemical, or
infectious characteristics may—
(A) cause, or significantly contribute
to an increase in mortality or an in-
CO V .ADAMKUS
Cite , ‘Oil F2d 3 2 (7thCir i989)
-------
881 FEDERAL REPORTER, 2d SERIES
354
crease in serious irreversible, or inca-
pacitating reversible, illness, or
(B) pose a substantial present or p0-
tential hazard to human health or the
environment when improperly treated,
stored, transported, or disposed of, or
otherwise managed
42 U S C § 6903(5) As required by sec-
tion 6925(a), National—Standard applied to
EPA for a permit for the fre tment, stor-
age, and disposal of the hazardous wastes
it generated See 40 C F R § 270 [ herern-
after TSD permit] At present, its applica-
tion remains pending, so that National—
Standard’s facilities currently are operat-
ing under interim status,” 42 U S C
§ 6925(eXl) Interim status facilities are
required to handle hazardous wastes as if
operating under a permit Id (Persons
having applied for a hazardous waste dis-
posal permit “shall be treated as having
been issued such permit until such time as
final administrative disposition of such ap-
plication is made “) As part of the process
of obtaining a permit, corrective action
must be taken with regard to any releases
of hazardous wastes Interim status facili-
ties that experience hazardous waste re-
leases are also subject to corrective action
Id, at § 6924(u), 6928(h).
On March 24 and 25, 1987, EPA officials
visited the facilities and performed visual
site inspections. During that tour, the offi-
cials determined that there were several
“solid waste management units” (SWMUs)
I. In the briefs, the parties consistently refer to
particular provisions of RCRA, as amended In
this opinion, however, any references to statu-
tory secisons shall be to Title 42 of the United
Slates Code The corresponding relevant enact-
ments are as follows
RCRA USC
§ 1004(5) 42 USC § 6903(5)
§ 3004(u) 42 USC § 6924(u)
§ 3005(a) 42 U S C § 6925(a)
§ 3007(a) 42 U SC § 6927(a)
2. Neither RCRA nor the regulations promul-
gated thereunder define “solid waste manage-
ment unit” (SWMU> The regulations do define
a “hazardous waste management on it as fol-
lows
‘Hazardous waste management’ unit is a
contiguous area of land on or iii which haz-
ardous waste is placed, or the largest area in
which there is significant likelihood of mixing
hazardous waste constituents in the same
at each facility and that corr€t ,
would be necessary On .April , F ‘ -
mally notified National—Standdr(J ti ,
was planning a sampling visit at
Standard’s facilities as the ne’t
the corrective action program requir.
der sections 6924(u) and 6927 Sei’ I, ‘ .
from Richard Traub to Richard Mu.
(Apr 3, 1987) [ hereinafter Notific,itir,ii i,’
ters], Vol I, R 1 at Ex I—A, 1—fl I,
Notification Letters, EPA stated
wanted to conduct a hazardous
speetton and collect samples to dct rn
the nature of any corrective action rei 1 u
at National—Standard’s facilities l . .
granting the company a permit to t-
hazardous wastes The Notificatioti I ,’
ters also stated that EPA contractoi’.
fendants-appellees Harding—Law son 1-
ciates and K W Brown & Associate- , In
were to assist with the sampling, anti th,,
representatives of the Michigan Depart
merit of Natural Resources would ob ,ur .’
the inspection Finally, the Letters identi
fied thirty SWMUs at the Lake Street w’t
City Complex facilities that would be t,ir
geted by the inspection team
National—Standard refused to consent ti
the inspection It protested the breadth if
EPA’s intended sampling, and stated th,it
section 6924(u) did not authorize the “fish
trig expedition” proposed by EPA It al’,ii
alleged that many of the proposed sam-
pling sites were riot SWIvIUs 2 See Letters
area Examples of hazardous waste manag
ment units include a surface impoundmeni. a
waste pile, a land treatment area, a landfill
cell, an incinerator, a tank and us associai&d
piping and underlying containment system
and a container storage area A container
alone does not constitute a unit, the unit
includes containers and the land or pad upon
which they are placed
4OCFR §26010
The district court formulated its own defirn
lion of SWMU by substituting the word “solid
for “hazardous’ in the above regulation Mem
Op ai 3 n 3 Neither party challenges this
definition The disirict court claimed support
for this interpretation from EPA’s promulgation
of final regulations under the HSWA, which
state
The term ‘solid waste management unit’ in-
cludes any unit at the facility ‘from which
hazardous constituents might migrate, irre-
spective of whether the units were intended
-------
355
NAT10NAL STAND D CO. v. ADAMKUS
Cite as 881 F 2d 352 (7th CIr 1989)
ary Ellen Hogan to T Leverett
(fly 11, 1987), Vol 1, R 1 at Ex
,2_ t’s Br at 38—39 Soon
National_Standard filed a de-
- idgment action in the district
the Northern District of Illinois
i•• The complaint sought declara-
ef on the ground that EPA lacked
y under section 6924(u) to inspect
,jonal_Standard facilities and that
ectiofls allowed under sections
i)and 6927(a) were limited to hazard-
stes specificallY listed in the Code of
.J Regulations Id Venue was
ded on the location in Chicago of the
Al inistrator charged with
eeing RCRA enforcement at the facili-
after the filing of the corn-
applied for and obtained ex
administrative search warrant to
t the National—Standard facilities
i the United States magistrate in the
rict court for the Western District of
(the district that encompasses
. . Attached to the warrant applica-
was the affidavit of Ms. Carol Witt, an
geologist. Ms Witt had been part of
_2A visual site inspection team that
ç 1 4isited the National-Standard facilities on
_ :h 24th and 25th, as a result of this
‘ bapection, she had determined that there
were several SWMUs at each facility She
further stated that, based on her observa-
6ons of discolored soil, surface water body
sediments, discontinuities in vegetation,
hand odors, there had been releases of what
may be hazardous wastes or constituents
. from some of the SWMUs. She believed
the releases may have been hazardous
? Wastes because they were near known
SWMUs containing ignitable solid wastes,
- Copper cyanide, lead, or waste water treat-
ment sludges from electroplating opera-
r Ms. Witt proposed taking no more
than six y solid waste, water, and air sam-
‘ Plea, including background samples, at the
aeilities. Vol 11, R 10 at Ex. B. On July
L , for the management of solid and/or hazard-
Otis wastes’ H R Rep No 198, 98th Cong
1st Sess.. Part 1, 60 (1983) EPA believes
‘ that the term unit’ at least encompasses
- containers, tanks, surface impoundment.
15, 1987, three days after obtaining the
warrant, EPA commenced execution
On June 16, 1987, National—Standard re-
sponded, filing in the district court for the
Western District of Michigan (1) a com-
plaint seeking preliminary and permanent
injunctive relief barring EPA from continu-
ing the inspection and from using the In-
spection results, and (2) an emergency mo-
tion to quash the administrative search
warrant and to transfer venue of all Michi-
gan proceedings to the district court for
the Northern District of Illinois Vol II,
R 1 at Ex A & Ex B. After conferring
with the district judge presiding over the
pending declaratory judgment action in the
Northern District of Illinois, the chief
judge of the Western District of Michigan
ordered all proceedings transferred to Illi-
nois National_Standard Co v Adam-
kus, No. 87—42—M (W D Mich June 16,
1987) (order), Vol II, R.1 at Ex C
Eventually, all matters were consolidated
in the Northern District of Illinois. Upon
making a finding of relatedness, the dis-
trict court joined the Michigan-initiated pro-
ceedings with the original declaratory judg-
ment action- The court also entered an
agreed order whereby EPA could continue
its inspection and take samples from the
National_Standard facilities, but could not
obtain the results of the analyses from
EPA’s contract laboratories. National—
Standard then filed an amended complaint
seeking declaratory relief, an order quash-
ing the administrative search warrant, and
preliminary and permanent injunctive relief
as to the results of the first inspection.
Vol.11, R 30. This complaint, when read in
its totality, requests a broad adjudication
as to the inspection powers of EPA with
respect to a facility such as National—Stafl
dard’s.
The district court later granted EPA’s
motion to deny National-Standard’s dis-
covery requests and granted summary
judgment in favor of EPA and its contrac-
tor codefendants Natsonal—Stafldai Co.
waste piles, land treatment units, landfills.
incinerators, and underground injection
wells 47 FR 32281 (July 26. 1982)
50 Fed Reg 28.7 12 (July 15, 1985), Mem op at
3n 3
rds
ee
-------
356
v AdanzI us, 685 F Supp 1040 (N D Ill
1988) (memorandum opinion and order)
[ hereinafter Mem op] The court also va-
cated the agreed order—releasing the sam-
pling results to EPA However, on the
basis of the record before us, it appears
that no EPA corrective action has been
ordered since it received the sampling re-
sults
II
THRESHOLD ISSUES
A Jurzsdictton
El] Halfway through its oral argument
before this court, EPA questioned, for the
first time, whether the transfer order by
the district court for the Western District
of Michigan was properly granted Specifi-
cally, EPA argued that Federal Rule of
Criminal Procedure 41(a), in conjunction
with the civil action transfer statute, 28
U S C § 1404(a), requires this court to con-
clude that the transfer was incorrect and
that, consequently, we cannot consider the
propriety of the warrant’s Issuance Sup-
plemental briefs were submitted by both
EPA and National—Standard. We hold that
EPA has waived this issue A thorough
review of the record reveals no attempt by
EPA or its coappellees to object to the
transfer when it was made. Never once in
all its pleadings or briefs before the vari-
ous courts in this case did EPA ever ques-
tion the validity of the transfer from Michi-
gan to Illinois The EPA did not seek
review of the transfer order in the Sixth
Circuit. See Illznozs Tool Works, Inc. v.
Sweetheart Plastzcs, mc, 436 F 2d 1180,
1187—88 (7th Cir), cert. dz nz .ssed 403 U S.
942, 91 S.Ct. 2270, 29 L.Ed.2d 722 (1971),
Purex Corp v St Louas Nat’! Stockyards
Co, 374 F.2d 998, 1000 (7th Cir), cert
denied, 389 U S 824, 88 -
LEd 2d 77 (1967), see (Ilso f ’,,,,,,, /
Sheet 11 ’fetal Servs, Inc v La Qm 1 t , 1 ,
br Inns, mc, 689 F 2d 982, 98 — 7
Cir 1982) Nor did it move for re1r ,, j, ,
of the matter in the district court f ,
Northern District of Illinois See’ I ’ , ,
374 F 2d at 1000, Linnell i’ S/ ,, ,
F 2d 65, 67 (4th Cir 1980), see
C Wright, A Miller & E Cooper J-
Practice and Procedure § 3846 at r,’
(1986) (‘The transfer order is not cul,,,
review by the transferee court or t .
of appeals But an order of tran .,f,
not res judicata A motion to retraii ’,.
the action may be made in the tran’,f,’r,.
court and the ruling on that motion i’. r.
viewable in the court of appeals to e lii, ’
the transferee court is responsible “) 1.-
notes omitted) Consequently, we h ,dl
allow this afterthought to be argued be ir,
us now
B Mootness
[ 2] Next, EPA submits that Nation,tl-
Standard’s entire appeal Is now moot ir.
light of EPA’s having obtained the result -.
of the sampling analyses after the district
court’s agreed order was vacated A mOtel
case is one that fails to present a “lice
controversy to the adjudicating court
Un2 ted States Parole Comm ‘n i’ Ger
aghty, 445 U S 388, 396, 100 5 Ct 1202
1208, 63 L Ed 2d 479 (1980) With regard
to establishing mootness, a “heavy” burden
of proof rests on the party suggesting
mootness—EPA See County of Los An
geles v. Dams, 440 U 5 625, 631, 99 S Ct
1379, 1383, 59 L Ed 2d 642 (1919), United
States v WT. Grant Co, 345 US 629
632—33, 73 5 Ct 894, 897—98, 97 L Ed 130.3
(1953) EPA has failed to carry its burden
881 FEDERAL REPORTER, 2d SERIES
3. When, as here, the legal authority of the dis-
trict court to transfer a case is at issue, manda-
mus has been considered an appropriate reme-
dy See VanDusenv Barrack,376U5 612,615
n 3, 84 S Ct 805, 809 n 3, Il L Ed 2d 945
(1964), see also Chesapeake & OR Co v Par-
sons. 307 F 2d 924 (7th Cir) reversed on other
grounds, 375 US. 71, 84 SCt 185, 11 LEd2d
137 (1963), Chicago, RI. & P.R. Co. v Igoe, 212
F2d 378 (7th Cir. 1954), Da:jy Indus Supply
Ass’n v L.a Buy, 207 F 2d 554 (7th Cir 1953); 15
C Wright, A Miller & E Cooper, Federal Prac
lice and Procedure § 3855 at 475 (1986) On
the other hand, as Judge Wisdom noted for ihc
Eleventh Circuit in Roofing & Sheet Metal Seris
v. La Quinta Motor Inns, mc, 689 F 2d 982. 987
(11th Cir 1982), “there is substantial disagree
ment among the circuits, and some apparent
confusion within the respective circuits, con
cerning the appropriate role of mandamus as a
remedy for abuses of discretion by district
courts in deciding motions under § 1404(a)
-------
- M noted above, this appeal is from a
court judgment denying National—
‘s broad request for declaratory
injunctive relief Due to the acation
the agreed order, EPA now possesses
results of the search and may order
rrective action at the National—Standard
Ii es. The facts of this case thus close-
resemble those addressed by this court
Donovan v Fall River Foundry Go,
2 ,12 F.2d 1103 (7th Cir 1983) In Fall Riv-
an employer appealed a district court’s
)ding that an administrative search war-
,snt obtained by the Occupational Safety
snd Health Administration (OSHA) was not
iiolative of the employer’s fourth amend-
ment rights by reason of alleged over-
‘,breadth. Although the warrant had been
cecuted, this court reviewed its scope and
the subsequent search of the employer’s
eeords. In addressing the agency’s claim
that mootness precluded such review, the
court said:
. Initially, it is important to note that,
‘ despite the limited search of the Fall
o ,River facility OSHA conducted in late
.ee 1982 or early 1983, this case is not
r& moot [ S hould citations issue
, .4.r against Fall River, pursuant to the limit-
ed search, Fall River might contest them
the theory that they resulted from a
search that violated the Fourth Amend-
ment because of the overbreadth of the
warrant
712 F2d at 1111. Accord Matter of Ku$
Foundry, mc, 691 F2d 1125, 1129 (3d
: ir.1982) (case moot because modified war-
rant had been fully executed and no cita-
.1ons issued). Contra B & B Chemical
Co., Inc. v. United States EPA, 806 F 2d
‘1. 987, 990—91 (11th Cir 1986) (rejecting Third
and Seventh Circuits’ approach) Indeed,
this case presents a stronger case against
‘ Tnootness than Fall River. Under the stat-
utory scheme at issue here, there is every
-‘ probability that EPA will act on the results
of the samples obtained by the admirnstra-
,tive search warrant. Under the compre-
,:h’ensive scheme of RCRA, discussed fur-
‘ther infra, interim status hazardous waste
Cihties like those at National—Standard’s
:‘.! es plants are subject to the same level
1 of stringent regulation as permitted haz-
357
ardous waste facilities See generally 42
U S C § 6925(i), D Stever, Law of Chemi-
cal Regulation and Hazardous Waste
§ 5 O6 [ 2 [ cJ, 5 06 [ 2Id] [ i [ B1 (1988) There-
fore, as a result of this search, EPA will
take one of the following steps (1) order
immediate corrective action under section
6928(h); (2) consider the results and never-
theless grant a TSD permit, or (3) consider
the. results but not order immediate correc-
tive action, and then later deny a TSD
permit and order corrective action
This court’s holding in United States v.
Kis, 658 F 2d 526 (7th Cir 1981), cert. de-
nied, 455 US 1018, 102 SCt 1712, 72
L Ed 2d 135 (1982), on which EPA relies
heavily, is not to the contrary In Kis, we
held that taxpayers’ compliance with an
Internal Revenue Service request for hand-
writing exemplars mooted their appeal as
to the enforceability of government sum-
monses for those exemplars 658 F 2d at
532—33. In so ruling, this court agreed
with earlier rulings of six other circuits on
the precise question. Id. at 532 We said
that.
The [ taxpayers] contend that this court
could grant them relief by declaring the
summons to be invalid and by suppress-
ing the handwriting exemplars and any
evidence obtained as a result of their
submission Such a ruling, however,
would ignore the well-established rule
that questions of suppression should not
be considered until the time when the
Government seeks to use the evidence.
It would be highly speculative so to rule
at this stage, for there is no guarantee
that the Government will ever seek to
use that evidence It may never even
bring any subsequent actions against the
[ taxpayers]
Id. at 533 (footnote omitted) (emphasis sup-
plied). There is no necessity for such spec-
ulation here The statutory scheme makes
further EPA action virtually inevitable. In
the legislative history of the 1984 Hazard-
ous and Solid Waste Amendments to
RCRA, Pub.L. 98—616, 98 Stat. 3221 (1984),
Congress made clear that past inadequate
efforts by EPA in promulgating regula-
tions, permitting facilities, and law enforce-
NAT1ONAL—STA ’ DARD CO. v. ADAMKUS
Cite as 851 F 2d 352 (7th Cir 1989)
-------
358
881 FEDERAL REPORTER, 2d SERIES
ment necessitated the tightened statutes
See H Rep No 98—198, Part I, 18—20, 44—
46, reprinted in 1984 USCode Cong &
Admin News 5576—79, 5603—05 Congress
has required EPA to take affirmative ac-
tion in overseeing hazardous waste at inter-
im status facilities l Thus, to fulfill its
congressional mandate, EPA must “use
the evidence” 0 e review the sampling
analyses from this search) either to issue a
TSD permit or to order corrective action
Besides this initial use of the sampling
results, it is virtually certain that EPA will
likely again’ have to reinspeet and resample
the National—Standard facilities in order to
guarantee the company’s compliance Con-
gress requires those facilities granted a
TSD permit to undergo mandatory inspec-
tions at least once every two years 42
U S C. § 6927(e)(1) The situation present-
ed here is thus “capable of repetition, yet
evading review” See Southern Pacific
Terminal Co v. ICC, 219 U S 498, 515, 31
S Ct 279, 283, 55 L Ed 310 (1911). There
is, given the statutory scheme, “a ‘reason-
able expectation’ or a ‘demonstrated proba-
bility’ that the same controversy will recur
involving the same complaining party”
Murphy v Hunt, 455 U S. 478, 482, 102
S Ct 1181, 1184, 71 L Ed 2d 353 (1982) (per
curiam), see also Nebraska Press Ass’n v
Stuart, 427 U S 539, 96 S Ct 2791, 49
L Ed 2d 683 (1976) (question of constitu-
tionality of pretrial restrictive order not
4. 42 U S C § 6 9 27(e) The HSWA also ordered
EPA to promulgate regulations establishing In-
spection frequency Pub L 98—616 at § 231
See generally D Stayer, supra, at § 5 O9 [ 2] [ a] [ iv]
& n 669
5. See “Inspection Authority Under Section 3007
of RCRA,” EPA Memorandum from Francis S
Blake to J Winston Porter (Apr 17, 1986), R 44
at Ex A
6. EPA Br at 35 EPA cites Chevron USA, Inc
v Natural Resources Defense Council, mc, 467
US 837 ,843n 11,IO4SCt 2778 , 2 782n 11,81
L Ed 2d 694 (1984) (stating that “(tjhe court
need not conclude ihat the agency construction
was the only one it permissibly could have
adopted to uphold the Construction, or even the
reading the court would have reached if the
question initially had ansen in a judicial pro-
ceeding”) In Chevron, the Court determined
that Congress had not spoken to the issue in
question and that EPA regulations creating the
moot even after the expiration 01 ii
der upon jury impaneling),
Bradford, 423 U S 147, 149, 96 ,
348, 46 LEd2d 350 (1975) (per CUr..
EPA’s initial search is the starting po ,
an ongoing regulatory relationship
National_Standard and EPA to ensur , ,
safe storage and eventual disposal of h ,
ardous wastes at the Lake Street anil (
Complex facilities Under that scherm.
spections are not merely possible, but h
ly likely
In
WARRANT ANALYSIS
A EPA’S Statutory Authority
[ 3] The primary issue raised b thL
pellant before this court is whether R( R
authorizes EPA to inspect the Nati i ,,j
Standard facilities National —St.uiI ,r,.
submits that sections 69 24(u) and (‘ri
bar these EPA inspections EPA
that RCRA clearly authorizes inspecti’
searches like the ones conducted here, .tn:
alternatively submits that EPA’s interpri
tation of section 6927 is reasonable tnt
thus merits deference by this court EI’
also submits that section 6924(u) auth
rizes the Inspection of National—Standarif
Niles facilities We hold that the RC1
inspection provision relied upon b th
magistrate—section 69 27(a)—authori,
EPA’s entry and inspection of Nation.tl-
“bubble” concept were reasonable tnierpr t
lions of the Clean Air Act
7 Section 6924(u) states
(u) Continuing Releases at Permitted Facili
ties—_Standards promulgated under this s c
tion shall require, and a permit issued afi r
November 8, 1984, by the Administrator or
State shall require, corrective action for ,ilI
releases of hazardous waste or consiiiucnis
from any solid waste management unit at a
treatment, storage, or disposal facility seeking
a permit under this subchapter, regardless of
the time at which waste was placed in such
unit Permits issued under section 6925 of
this title shall contain schedules of compli
ance for such corrective action (where such
Corrective action cannot be completed prior
to issuance of the permit) and assurances of
financial responsibility for completing such
corrective action
42 USC § 6 9 24(u)
-------
facilities, and thus we affirm
of the district court
point of statutory interpre-
now-familiar two-part test de-
Chevron USA, Inc v Natu-
trees Defense Council, mc, 467
104 s_Ct 2778, 81 L Ed 2d 694
There, a unanimous Supreme Court
how a court is to evaluate an
interpretation of a statute it ad-
•.. First, the court must determine
-‘ ther Congress has spoken directly to
‘ ecise question at issue If the intent
- ogress is clear, that is the end of the
tc for the court, as well as the agen-
must give effect to the unambiguously
I essed intent of Congress “ 467 U S at
:- 1 43. 104 S Ct at 2781 (footnote omit-
, See also American Mining Congress
*‘U ited States EPA, 824 F 2d 1177, 1182
Z .C ,Cir.1987) (“This inquiry focuses first
jthe language and structure of the stat-
Itself. If the answer is not yielded by
thi, statute, then the court is to look to
sicondary indicia of intent, such as the
aessure’s legislative history “) Second, in
es where Congress’ intent is not clear or
- where “Congress has not directly ad-
thized the precise question at issue [ ,]
the question for the court is whether the
agency’s answer is based on a permissible
ceesfruction of the statute” Chevron, 467
• U.S. at 843, 104 S Ct at 2782 (footnotes
omitted). We turn, then, to the first step
sad examine the language employed by
Congress. See CBS, Inc v. FCC, 453 U S.
867, 377, 101 S Ct. 2813, 2820, 69 L Ed 2d
706 (1981); Reiter v. Sonotone Corp., 442
U.S. 330, 337, 99 S Ct 2326, 2330, 60
L.Ed.2d 931 (1979)
‘ t ’Section 6927(a) provides
(a) Access entry
For purposes of developing or assist-
ing in the development of any regulation
• or enforcing the provisions of this chap-
ter, any person who generates, stores,
8 Nationa ni-cl submits that EPA’s refer-
flCe to sectIon 6924(u) in the Notification Let-
t Ta prevents it from inspecting and sampling at
I locations other than SWMUs because that sec-
‘don addresses solely EPA authority to order
It corrective action for releases from SWMUs
We agree with the district court, however, that
( tins argument is based on a “faulty premise”
359
treats, transports, disposes of, or other-
wise handles or has handled hazardous
wastes shall, upon request of any officer,
employee or representative of the Envi-
ronmental Protection Agency, duly desig-
nated by the Administrator, or upon re-
quest of any duly designated officer, em-
ployee or representative of a State hav-
ing an authorized hazardous waste pro-
gram, furnish information relating to
such wastes and permit such person at
all reasonable times to bave access to,
and to copy all records relating to such
wastes For the purposes of developing
or assisting in the development of any
regulation or enforcing the provisions of
this chapter, such officers, employees or
representatives are authorized—
(1) to enter at reasonable times any
establishment or other place where
hazardous wastes are or have been
generated, stored, treated, disposed of,
or transported from;
(2) to inspect and obtain samples from
any person of any such wastes and
samples of any containers or labeling
for such wastes.
Each such inspection shall be commenced
and completed with reasonable prompt-
ness. If the officer, employee or repre-
sentative obtains any samples, prior to
leaving the premises, he shall give to the
owner, operator, or agent in charge a
receipt describing the sample obtained
and if requested a portion of each such
sample equal in volume or weight to the
portion retained If any analysis is made
of such samples, a copy of the results of
such analysis shall be furnished prompt-
ly to the owner, operator, or agent in
charge
42 USC § 6927(a)
National—Standard submits that the plain
language of this provision explicitly limits
any authorized inspections solely to “in-
Mem op at 24 EPA’s invocation of section
6924(u) in the Notification Letters does not lim-
it its authority to inspect and sample under
section 6927(a), discussed infra. Under that
provision, EPA’s inspection authority is not re-
stricted to SWMUs, but rather, it may inspect
any area in which hazardous wastes are or have
been stored
NATIO’.AL-STANDARD CO. ‘ . ADAMKUS
Cite as 881 F 2d 352 (7th Cir 1989)
-------
360
881 FEDER- L REPORTER, 2d SERIES
spect and obtain samples from any person
of any such wastes and samples of any
containers or labeling for such wastes
EPA thus e\ceeded its authority in broad-
ening its search to the collection of samples
that, according to National—Standard, ‘re-
late to” hazardous wastes Appellant’s Br
at 16 In Nanonal—Standard’s view, sec-
tion 6927(a) permits EPA inspections only
when a gi en facility identifies itself as
possessing hazardous wastes, at which
point EPA may sample froh any SWMU
those wastes, or their containers, or con-
tainer labels only Furthermore, those haz-
ardous wastes which may be sampled are
to be defined by the hazardous waste facili-
ty, not EPA id at 17
We cannot accept such an interpretation
of section 6927(a) We agree with the dis-
trict court that this interpretation would
“emasculate EPA’s ability to pursue the
broad remedial goals of ECRA “ Mem op
at 22 Like the district court, we believe
that ‘ [ t]he main purpose of an inspection
and sampling visit is to detect the presence
of hazardous wastes If EPA could not
inspect an area unless it knew hazardous
wastes were stored there, EPA would be
rendered effectively powerless” Id
EPA’s broad inspection authority is tem-
pered by its need to show probable cause
and obtain an administrative search war-
rant, discussed infra, when a hazardous
waste facility owner, such as National—
Standard, does not consent to the inspec-
tiori.
Section 692 ’7(a) inspections are autho-
rized “ [ for the purposes of enforcing
the provisions of this chapter” Chapter 82
of Title 42 of the United States Code, 42
U S C § 6901—699 i i, provides EPA with a
broad mandate for enforcing the national
policy of treating, storing, and disposing of
hazardous wastes “so as to minimize the
present and future threat to human health
and the environment” 42 U S.C.
§ 6902(b). The Notification Letters’ refer-
ence to a particular provision that autho-
rizes corrective action orders for hazard-
9. Nauonal—Siandard submits that ‘Neither ihe
statute nor the regulations allow U S EPA ’s sub-
jecuve beliels to be a determining factor In
faci, the person who produces the material has
ous waste r&eases from S” Ml
6924(u)—does not limit EP \ . -
inspect and sample from areas -
SWMUs EPA’s Inspection and
authority derives from the broa(J
in section 6927(a), which em ic,y , r,
agency to enforce the enur to -
scheme, not just a particular proi isi,,
determining the material that El’t
sample under section 6927(a), Congr , -..
nificantly chose the broad, genir, ,I
“hazardous waste” defined in -
6903(5) (set Out in Part I) rather tlt,u, -
ardous waste identified or listed unih r -
subchapter,” employed in other pro i •.,-,
See, eg., 42 USC § 692 4(a). tl t [ 4
This broad range of materials Conjir..,
intended to subject to sampling undtr
tion 6927(a) was demonstrated ri t ’ ,-
HSWA legislative history
EPA’s authority under these pro-
[ RCRA sections 3007 and 700 ]
limited to wastes that are ‘ identifi d
listed’ as hazardous, but rather indu . -
all wastes that meet the statutory dt fu
tion of hazardous wastes
H Rep. 198, 98th Cong, 1st Sess 47 (l’li’
1984 U S Code Cong & Adrnin Ne s
see EPA Br at 28 n 15
Finally, National—Standard’s interpre’t.
tion of section 6927(a) as being limited ti
situations of proven actual releases is d-.
incorrect. A similarly narrow interpret.i
tion of the Clean Water Act was rejecu d
by this court in Mobil Oil Corp v EP4
716 F.2d 1187 (7th Cir 1983), cert denwel
466 U S 980, 104 S Ct. 2363, 80 L Ed 2d S.3
(1984). In Mobi l this court refused t ’
quash an administrative search warrant for
the sampling of untreated waste waler
The court interpreted the Clean Water 1(1
and held that-
These provisions of [ the Clean Water Act
inspection provision] leave no doubt that
the Congress that enacted that Section
was firmly convinced that the interest of
permit holders such as Mobil in keeping
secret information about the pollutants
by regulation the responsibility for determining
wheiher it is a hazardous waste 411 CFR
§ 262 IL” Appellant’s Br at 17
-------
waste water is not entitled to pro-
0.
,jpJdat 1190 Likewise, section 6927(a)
vests broad authority in EPA to
nd sample any facility at which the
has probable cause to believe that
of the statute are occurring
j Jii ance of Warrant
jitional Standard next argues that, de-
EPA authority to inspect and sample
to an administrative search war-
,az, such a warrant was granted improp-
here iS The appellant claims three
ws in the warrant (1) not enough proba-
cause was shown, (2) the warrant was
ã,rbroad, and (3) it should not have been
j ed ex parte Upon review, however,
v, determine that none of the alleged
vs exist
- , L Probable Cause
- j41 The appellant asserts that Ms
Witt’s affidavit provided insufficient proba-
bl. cause fot the issuance of the warrant
Ia order for an administrative warrant to
sue, (1) there must be specific evidence of
sa existing violation, or (2) the search must
be part of a general neutral administrative
plan. Marshall v Barlow’s, mc, 436 U S
307, 320—21, 98 S Ct 1816, 1824—25, 56
L.Ed.2d 305 (1918) Here, the warrant was
sued on the former basis—specific evi-
dence of a RCRA violation. National—Stan-
dard recognizes that administrative war-
rants do not require the same degree of
probable cause as do criminal warrants
See Weyerhaeuser Co v. Marshall, 592
F.Zd 373, 377 (7th Cir 1979); In re Estab-
lishment Inspection of Gilbert & Bennett
Jffg. Co, 589 F 2d 1335 (7th Cir.1919);
West Point—Pepperell, Inc. v. Donovan,
689 F 2d 950 (11th Cir 1982) Nevertheless,
a Urges that Ms. Witt’s affidavit does not
satisfy even these standards.
To determine whether this warrant pass-
es probable cause muster, we shall com-
pare the quantum of evidence presented to
the reviewing magistrate to that considered
by otherS courts reviewing the issuance of
10.. . Other than the jurisdictional and mootness
Claims discussed supra, EPA raises no procedur-
361
administrative search warrants Sec Gil-
bcit & Bennett, 589 F2d at 1342 In Wey-
erhaeuser, this court rejected as insuffi-
cient an affidavit for an OSHA search that
merely stated a generalized summary of
the one complaint that the agency received
592 F2d at 378 & n 6 In Gilbert &
Bennett, this court upheld a very detailed
affidavit in support of an OSHA search
that listed explicit conditions and com-
plaints 589 F.2d at 1339—42 TJie court
also noted that in determining whether
probable cause exists, “‘the need for in-
spection must be weighed in terms of [ the]
reasonable goals of code enforcement’”
Id at 1338 (quoting Camczra v Municipal
Ct, 387 U S 523, 535, 87 5 Ct 1727, 1734,
18 L Ed 2d 930 (1967)) see also Burkart
Randall Division of Textron, Inc v Mar-
shall, 625 F 2d 1313 (7th Cir 1980) In
West Point—Pepperell, the Eleventh Cir-
cuit found sufficient probable cause in an
affidavit based on nearly seventy inter-
views 689 F.2d at 958
[ 5] Here, we conclude that, like the affi-
davit reviewed in Gilbert & Bennett, Ms
Witt’s detailed affidavit satisfies the level
of probable cause necessary for the is-
suance of an administrative search war-
rant. As outlined supra, Part I, the affida.
vit explained the various known hazardous
wastes at the National—Standard facilities
and the affiant’s observations at earlier
visual site inspections. See R 44 at Ex D.
Additionally, the affidavit included photo-
graphs of what appear to be dead vegeta-
tion, leaking barrels, etc “In no way was
the warrant application mere boilerplate,”
concluded the district court Mem op. at
16 We agree. This specificity, together
with Congress’ express desire for strong
enforcement of the RCRA statute, supra,
clearly constituted sufficient probable
cause for the issuance of the administrative
search warrant.
2. Overbroad Warrant
[ 6] National—Standard also argues that
the warrant purports to grant EPA permis-
N. TIONAL-STANDARD CO v -‘tDA’sIKUS
Cite as 88i F 2d 352 (7th Cir 1989)
al challenges to our consideration of this issue
-------
362
881 FEDERAL REPORTER. 2d SERIES
sion to perform Inspection and samphrig
beyond that specifically described in
RCRA See 42 U S C § 69 27(a) In partic-
ular, it submits that ‘background samples”
authorized by the warrant are not autho-
rized by RCRA Appellant’s Br at 36
National_Standard has not asserted that
procurement of such background sampling
incurred any specific problems, such as un-
due interference with plant operations, in-
deed, an examination of a map of the facili-
ties confirms -that no sampling locations
were obstructive
The Supreme Court’s discussion in Dow
Chemical Co v United States, 476 U S
227, 106 S Ct 1819, 90 L Ed 2d 226 (1986),
1 5 persuasive guidance There, Dow
claimed that EPA had no authority to use
aerial photography to implement its statu-
tory power for site inspection under the
Clean Air Act The Court held that
Congress has vested in EPA certain
investigatory and enforcement authority,
without spelling out precisely how this
authority was to be exercised in all the
myriad circumstances that might arise in
monitoring matters related to clean air
and water standards When Congress
invests an agency with enforcement
and investigatory authority, it is not
necessary to identify explicitly each
and every technique that may be used
in the course of executing the statutory
mission -
Regulatory or enforcement authority
generally carries with it all the modes
of inquiry and investigation tradition-
ally employed or useful to execute the
authority granted
476 U S. at 233, 106 S Ct. at 1824 (emphasis
supplied).
Background sampling is a mode of “in-
quiry and investigation traditionally em-
ployed” in the type of scientific sampling
authorized by section 6 927(a) According-
ly, we agree with the district court that
“ [ t]he power to take background samples is
implicit in EPA’s power to detect releases
of hazardous wastes” Mem. op. at 23.
Ii. In Stauffer, the company had made clear that
It did not cofliest the nght of government offi-
cials to enter the premises but did contest EPA’s
There is ‘no indication in the
Congress intended to foreclose
taking control of background , , ,
the ordinary course of scientific p , -
tion “ Id Therefore, in light of ‘ur
mination that the administrati ’ . -,
warrant was properly limited in , •
tion, duration, and number of -
meet the Dow standard, we ho N
warrant was not overbroad
S Ex Parte
[ 7] To persuade this court th, t u
an ex parte proceeding Was impro 1 )l,- \
tional—Standard relies almost e\clu ,,
on the district court opinion in In
fer Chemical Co, 14 Env’t Rep C,ts f \
1737 (D Wyo 1980), affd, 647 F 2d
(10th Cir 1981) In Stauffer, the d -tr.
court quashed an EPA admini trt:
search warrant for the Clean Air (t
spection of a phosphate plant It said th,
The use of an cx parte proceeding i
obtain the Administrative Warrant ‘ . ,,
under the czrcurn.stances of this ul
improper and violated principles of luii
damental fairness This is a case of fir-t
impression EPA’s counsel ‘ . a
all times fully aware that Stauffer ‘ .‘.uid
challenge the Agency’s authority to for,
entry by private contractors onto phtii
premises. For that reason, fundameni.iI
principles of Justice and fair play dictate I
that Stauffer be allowed to contest the
issue before a warrant was issued and
the entry effectuated However, instead
an ex parte procedure was issued b ’ .
EPA in this case, without notice of an’.
kind to Stauffer - Although cx pa ,t i
warrants may be proper under other cir
cumstances, we feel that in view of the
novel aspects of this case, notice and ,in
opportunity to be heard should have been
provided by the EPA’s attorney
Stauffer, 14 Env’t Rep.Cas (BNA) at 1741
(emphasis supplied) National_Standard
submits that, like the Stauffer Company, it
voiced its intention to mount a legal chal-
lenge to EPA’s authority to inspect, no
contracting inspection responsibilities to private
contractors
-------
363
NAT!ONAL_ST NDARD Co ADAMKUS
Cue as 881 F 2d 352 (7th Cir 1989)
circumst a es existed, National—
d had been cooperative in following
it procedure and these provisions
had not yet been interpreted by
i_Standard’s argument fails to
that ex parte proceedings are the
means by which warrants are ob-
jji both criminal and administrative
,, and do not, in and of themselves,
e bad faith See Midwest Grower’s
v. Kirkemo, 533 F 2d 455, 464 (9th
, In re Stanley Plating Go, mc,
71, 72 (D Conn 1986) In Stan-
g, the court held that the penden-
‘ii proceeding that had been mitt-
the polluter by EPA did not
the agency from invoking its
and sampling power accorded by
-- -, the discovery constraints
e 26 of the Federal Rules of Civil
ure did not dictate other ’ use 637
t 72 ‘
EPA’s inspection authority in section
together with the admitted pres-
e of hazardous waste at the facilities,
A scientist’s belief that a release of
zardous waste had occurred, and satis-
. Similarly, the Ninth Circuit in M:dwe.st
l Growers reasoned that the Interstate Commerce
Commission’s use of an ex parte ¼arrant did
not demonstrate bad faith, despite ihe court’s
ruling that the agency’s belief in is authority
was erroneous 533 F 2d at 464 & n 21 As we
discussed supra, EPA here correctly concluded
that it possessed statutory authorit)
13. As outlined by the Supreme Court in
Anderson v Liberty Lobby, Inc. 477 U S 242,
106 S Ct 2505, 91 L Ed 2d 202 (1986), summary
judgment should be granted when there exists
no genuine issue of material fact Here, the
appellant submits that conflicts bet een the af-
fidavits of Ms Witt and Mr Richard Moessner,
National—Standard’s manager of environmental
control, evidence such a genuine issue of mate-
nal fact Specifically, National-Standard ar-
gues that, although Ms Wilt attested to facts
with sufficient particularity to support an ad-
ministrative warrant, questions arise to the sat-
isfaction of the level of particularity required by
Rule 56(a) of the Federal Rules of Civil Proce-
dure Upon making a de novo examination of
the subject matter of the summary judgment
motion—the validity of the search and the war-
rant—however, we conclude that the appellant
Is mistaken As demonstrated above, supra Part
Ill B, no genuine issues of material fact exist
about the validity of the warrant
factor’ probable cause, preclude any argu-
ment that it as improper for EPA to
apply for and obtain an ex parte adminis-
trati\e search warrant The mere penden-
cy of a related civil action does not auto-
matically preclude EPA’s use of other au-
thorized law enforcement techniques such
as the e parte application for an adminis-
trati’ e search v arrant See Stanley Plat-
ing, 637 FSupp at 72
CON CLUS ION
[ 81 EPA was properly authorized by
section 6927(a) to perform an inspection
and sampling visit at the Niles Lake Street
and City Complex facilities of the National—
Standard Company Therefore, we affirm
the district court’s grant of summary judg-
ment to EPA on this issue i3 We also
affirm the district court’s judgment uphold-
ing the issuance of the warrant and denial
of discovery to National—Standard i4
AFFIRMED
tY MUM Bit $YSTtM
14. The district court ruled that National—Stan-
dard may not pursue discovery of the warrant
application and obtain a hearing to challenge
the factual assertions in Ms Wilt’s affidavit
Mem op at 17 The court stated that Franks v
Delaware, 438 US 154, 98 SCt 2674. 57
L Ed 2d 667 (1978), allowed challenges of an
affidavit’s truthfulness only after a “substantial
preliminary showing” of falsehood Id
In In re Establishment Inspection of Gilbert &
Bennett Mfg Co. 589 F2d 1335 (7th Cir 1979),
we held that a district judge’s decision to deny
discovery of the facts attested to in support of
an administrative warrant was, like all dts-
covery decisions, “committed to the sound dis-
cretion of the district judge. and may not be
easily reversed on appeal” 589 F 2d at 1340
Where the information provided “was adequate
on its face to establish probable cause [ ,) there
was no need to pursue further discovery, and
the judge acted properly in not granting such
relief” Id Accord Donovan v Mosher Steel
Co, 791 F2d 1535, 1537 (11th Cir 1986) (“the
reviewing court is charged with examining the
magistrate’s actual probable cause determina-
tion—not what he or she might have concluded
based on information not presented in the war-
rant application”). cert denied. 479 U S 1030,
107 5 Ct. 874, 93 L Ed 2d 829 (1987), cf Brock
v Brooks Woolen Co. Inc. 782 F2d 1066, 1069
-------
AU’S AND PRESIDING OFFICERS
I. A.LJ’s
A. Are chosen under a nationwide selection process
- Have extensive trial practice experience before
becoming ALJs
B. Work full-time on hearing administrative cases
1. Class II administrative enforcement cases
2. Permit term appeals
3. Other administrative cases assigned
C. Have heavy caseloads
1. Only seven ALJ5
2. Each typically has about 140 active cases
D. Need to treat ALJ8 with respect
1. Serve pleadings promptly
2. Ask for any extensions well beforehand
3. Be thorough in preparation of filings
4. In enforcement actions, only include counts you can
prove by a preponderance of the evidence
5. Prepare thoroughly for the hearing
6. Do not present truckloads of documents
II. Presiding Officers
A. Are selected by the Regional Counsel and ORC Branch Chief
- Typically have administrative hearing experience
B. Work part time on hearing administrative cases
1. Class I administrative enforcement actions
2. Listing proceedings
-------
—2—
3. Only hear cases brought by the ORC Branch the
Presiding Officer is not in, to prevent conflicts of
interest
C. Have light administrative caseloads, but must fit case in
with their normal workload
D. For Presiding Officer hearings less thoroughness and
formality is required, but still must meet same burden of
proof
- Presiding Officer should still take this duty
seriously to insure that there is a fair, objective,
adjudication
III. Office of the Chief Judicial Officer
A. Chief Judicial Officer reports to the Administrator
- Has staff of six lawyers helping write appeal
decisions
B. CJO and staff work full time on deciding appeals
1. Appeals from AU decisions on penalty cases and
NPDES permit appeals
- Chief Judicial Officer writes decision for
Administrator’s approval and signature
2. Appeals from Regional Administrators’ decisions on
RCRA, UIC, and PSD permit terms
- Chief Judicial Officer signs appeal decisions
3. Appeals from EEOC Hearing Officer on EEO cases
- CJO writes decision for Administrator’s approval
and signature
C. Appeals decided by CJO/Administrator may be from EPA or
violator/permittee, or may be sua sponte
1. Appeal is based on the record (administrative record
or hearing record) and on the briefs filed with the
appeal
2. Appeal from CJO/A’s decision is to federal court
D. Caseload is 100-120 cases per year
-------
IV. Ex Parte Connnunjcatjons
A. Are prohibited
B. Purview of prohibition
—3—
-------
HOW JECESSARY IS TUE ADMINISThATIVE
LAW JUDGE?
GERALD HARWOOD
DI - • • 1
--I
‘ Oh
-
thHC OF LC.Gi s’. £UJI LL
IPA — RIGION X
Reprinted from
WESTERN NEW ENGLAND LAW REViEW
Volume 6. Issue 3. 1984
Copyright ® 1984 by Western New England Law Review
Aasoczation Inc.
-------
HOW NECESSARY IS THE ADMINISTRATIVE
LAW JUDGE?
GERALD HARWOOD
Having administrative law judges preside in adminictrauve cases
affecting individual rights and liabilities is being criticized today as
an outmoded procedure except in “accusatory” cases where a person
is charged with wrongdoing. The purpose of this article is to examine
the arguments behind this criticism and to demonstrate that the al-
ternative procedures which are proposed, contrary to the claims
made for them, are not likely to improve the quality of decision-
making , and can, in fact, destroy the effectiveness of the procedure
by undermining public confidence in it.
I. Tira ADMINISThATIVE Lkw JUDGE
The administrative law judge is an employee of the agency over
whose hearings he pre ’des.’ He is, however, largely independent of
the agency. His pay is fixed by the Office of Peraonnel Management; 2
he can be removed only for good cause established and determined
by the Merit Systems Protection Board after a hearing. 3 and his per-
formance cannot be rated by the agency.’ In addition, his impartial-
ity is assured by a rigorous “separation of functions” which
insulates him from any supervision or direction by agency employ-
ees who have taken part in the investigation or prosecution of the
case being heard, and which also prohibits him from consulting cx
parte with any person on any fact in issue . 5 The administrative law
judge, however, is not the final deciaionmaker. He plays only an in-
A s uu,s Law Judge, Pru ” . ,n Ag cy. i or 1916 B A..
Ya sUai . , 1942 LLB., Harvaid Law SthooL 1941.
Th .i ds w wr by the author m his prwas. No othcial support or
emdo by the Usssd Staiss Euvu mcniaI ou Ag cy is intended or
shouki be (crs,d.
1. S U.S.C. $3105 (1982). On o . wben an sg cy ds itself understaffed
wsth law j ”dg e , d seny tporanly b auu a judge selected by the Othce
) lana .“t fros another agscy. 5 U.S.C. § 3344 (1982).
2. Id *5362.
3. Id $7521.
4. Id N4302, 4303.
5. Id *554(d).
793
-------
794 WESTERN NEW ENGLAND LAW REVIEW (Vol 6793
termediate role. It is the agency which is the final decisionmaker and
it has broad discretion in overruling the administrative law judge. 6
II. ADMINISTRATIVE HEARINGS
The use of independent hearing officials stems from the due
process requirement that an agency must afford a person a hearing
before it takes action affecting that person’s liberty or property. 7 It
was a response to the concern that agency employees, advocating a
particular agency action against a claimant who disputed the propri-
ety of the action, should not also act as the judge of that dispute The
final solution was a compromise between those who thought that
there should be a complete separation between agencies that prose.
cute and agencies that decide, and those who feared that separating
those who make policy from those who determine disputes regarding
its application would frustrate the agency’s ability to put its policies
into effect. 8 Under the compromise embodied in the Administrative
Procedure Act, a distinction is made between rulemaking and adju-
dication with different minimum procedural requirements for each.
In rulemaking, an indepenacut hearing officer and the concom.i-
tant separation of functions is not required unless a regulatory stat-
ute specifically provides otherwise. This is true because rulemaking
is regarded essentially as setting policy to govern future conduct. 9
Adjudication, on the other hand, consists of those cases which
terminate in the issuance of an order against a specific party; “order”
being defined to include the grant. modification, or denial of a ii-
6. Univesuj Camera Corp v NLRB. 340 US. 474. 489-97 (1951). and FCC
Allentown Brc”dcamng Corp.. 349 U.S. 358. 364-65 (1955) (rejecting the “clearty erTone
ous” for agency review of 4 ” ”uauve Law judge’s decisions) See 5 U S C
§ 557(b) (1982). “(oja appeal from or review of the initial decision, the agency has all the
powers whith it would have in m k,,ig the initial decision escepi as ii may Limit the
issues on notion or by nile,” and ATToiiirv Geriaa. L’s MANUAL. ON THE ADMINISTRA-
TWE Pnoc&nju Acr 83 (1947) (hereinafter cited as MANUAL). In some recent statutes,
review more closely approximates the clearty erronecus standard. See, r.g. 30 U S C
§ 8 ) (1982), providing that initial decisions reviewed by the Federal Mine Safety and
Health Review Commtt&ion shall be athzmed if supported by subsianual evidence As-
that this is the same standard that is followed by the appellate courts in reviewing
administrative decisions, the MSHRC would have to give an initial decision the same
weight that a district court would have to give a juzy verdict. See ConsoLo v Federal
Maritime Comma. 383 U S 607. 620 (1966).
7 Morgan v United States. 304 US I. 14-15(1938)
8 See Davis. Sepa’wsoR of Fwucnou in AówwtTwn ’e Agescies. 61 HARY L Riv
389(1948), Wong Yang Sung v McGrath. 339 US 33. 37 (1950), Butz v Economu. 438
US 478. 513-14 (1978).
9 5 USC §553 (1982), MANuI.Ln 1ra note 6. at 14
-------
I 984J NECESSITY OF ADMINISTRATIVE LAW JUDGE 795
cense or permit.’ 0 In such cases, the separation of functions req uire-
ment does not apply if the agency or one of its members presides
over the adjudication. This is in recognition of the fact that the
agency is to be the final arbiter of both policy and its application to
specific cases.” As a practical matter, however, the sheer volume of
cases generally precludes the agency or one of its members presiding
over these cases. If the agency or one of its members does not pre-
side, the presiding officer must be an administrative law judge (who
originally had the title of “hearing examiner”) and, except in appli-
cations for “initial licensing,” the separation of functions require-
ment also applies.’ 2 In initial licensing, the administrative law judge
presides over the conduct of the hearing but there is no separation of
functions and the intermediate decision (initial or recommended)
can be rendered by any responsible agency employee.’ 3 The reason
for treating initial licensing in this fashion appears to have been that
while the rights of individuals are involved in initial licensing cases
as well as in other adjudications, initial licensing is also considered
to have some of the policymaking characteristics of rulemaking.’ 4
As to the hearings, themselves, rulemaking requires only notice
of the proposed agency action and the opportunity to comment upon
j I5 There is no right to an oral hearing. 16 Adjudicative hearings, on
the other hand, are modeled after the traditional judicial procedures
for deciding controversies.’ 7 The party against whom the agency
proposes to take action must be given notice of the issues of law and
fact asserted to support the proposed agency action.’ 8 The party has
the right to present its case by oral or documentary evidence, and to
conduct cross-ex minauon.’ 9 The evidence is presented systemati-
cally in accordance with established rules allocating the burden of
proof. The decision rendered must not only be based upon the rec-
ord, but the facts relied on must be supported by the evidence of
10. See definauca of ‘Adjuthcauon” inS U.S C. § 551 (1982)
I l. S U S.C. § 554(d) (1982), M.*i, iui.,si p a cote 6, c c 58
12. 5 U.S.C. § 554(d) (1982)
13. 5 U.S.C. § 557(b) (1982)
14 Id; M. p,u*i.. pra cole 6. ii 50-Si.
IS SUS.C §553(1982).
16. Sn id Notice and comment can sausfy the siccucorv requiremeat for a hear-
ing in an appropricic cue even though the only pnrucipanon allowed is the submi.ss ,oo
ofwnnenvlews UcitedScatesv Flon E .uaCoastRy Co.4IOUS 224(1973)
17 St .s *554
18. Id §556(bX3)
19 Id §556(d).
20 Id
-------
796 WESTERN NEW ENGLAND LAW REVIEW [ Vol 6793
record, 2 ’ a requirement not necessarily present in rulemaking.22 Fi-
nally, of course, a hearing not presided over by the agency or one of
its members, must be presided over by an administrative law judge. 23
III THE FUNCTIoN OF THE ADMINISTRATIVE LAW JUDGE
In presiding over adjudicative hearings, the first duty of the ad-
minictrative law judge. and one certainly important to the mainte-
nance of public confidence in the process, is to assure that the parties
are treated fairly and that rulings on requests and objections made
by the parties are even-handed and impartial. Second. and of equal
importance in those cases where the administrative law judge does
render a decision, is the duty to state his findings on all issues of law,
fact and discretion with supporting reasons. 24 There is value to both
the public and the agency in having the administrative law judge
preside over agency adjudications: The judge is free from any insti-
tutional pressures influencing a particular result. This is most Impor-
tant, of course, in the finding of facts. On questions of policy, the
judge must follow agency policy as reflected in published agency nil-
ings. Even ith regard to questions of policy, however, ‘ iere can be
conflicting policies to apply to a given set of facts, or questions may
be raised as to how a particular policy should be interpreted. The
administrative Law judge can perform a useful service in sharpening
the policy issues for the agency’s consideration in these cases. 2 ’
While the agency has broad discretion to overrule the adminis-
trative law judge, ignoring his decision entirely may result in reversal
on judicial review. 2 ’ The Supreme Court has stated that the adminis-
trative law judge’s findings should be given such weight as “in rea-
son and in light of judicial experience they deserve.” 27 In practice,
this has meant that special weight has been given the administrative
law judge’s credibility findings based upon his observation of the
21. 51w ad § 556(d). 557(c). 706(2XF). For the plopouuon that an agency is not
tied to the record in informal ruIe” k’ne see M.uau..&.. .mpw note 6. at 31-32 The
courts. however , have been reluctant to permit an agency to rely on factual material
wbich was aol made part of the record before the agenCy and available for
mmeni . although in a few injiancos they have allowed this. See. e g. Nail Assn of
Demolition Convacton v Costle, 563 F 24 748, 752 (DC Cit 1977)
22. Seead §553
23 5 U S.C § 536(b) (1982)
24 SeeS USC §537(c)( 1982).
25. See M. u*i, .n pav note 6. at 84
26 ASG lndus.. Inc v United Slates. 548 F 24 147 (6th Cit 1977)
27 Universal Camera Corp v NL.R3. 340 US 474. 496-97 (1951)
-------
1984) NECESSITY OF ADMINISTRATIVE LAW JUDGE 797
witnesses. 28 Findings that are based on the inherent probative value
of testimony or documents and the inferences to be drawn from the
primary facts are generally entitled to less weight than the credibthty
findings, but must still be considered and, where not followed, the
agency should either expressly give its reasons for its disagreement
with the administrative law judge, or the basis for the disagreement
should be apparent from the agency’s decision. 29 On questions of
law or policy, the administrative law judge’s conclusions probably
have little if any weight. Nevertheless, ventilation of the objections
and reasons for the policy or law being applied can expose flaws not
previously recognized, and it would be sound practice for the agency
to give careful thought to the administrative law judge’s conclusions,
since a reviewing court may find the judge’s reasoning persuasive. 30
In sum, the administrative law judge protects those who deal
with the agency from arbitrary or unwise action by providing the
agency and the reviewing court with an impartial assessment of the
merits of the objections made to the agency’s action.
IV. THE ARGUMENTS FOR DISPENSING WITH THE
ADMINISTRATIVE LAW JUDGE IN “NON-ACCUSATORY”
CASES
As part of a broader attack upon the adjudicative proceeding as
a method for decislonmlking, Mr. WilIi2m Pedersen and Professor
Davis have advocated dispensing with the use of administrative law
judges in certain proceedings on the grounds that many complex
technical issues which are now being decided by adjudication are
really policy or “legislative” issues. 3 ’ To have such issues resolved by
procedures which require separation of functions and proof through
witnesses who are subject to cross -eaminAtion is thought to be un-
duly time consuming, a waste of resources and generally not helpful
to the agency in reaching a final decision. 32
28. Id at 496.97.
29. Cindc1eUa Citeer & Fintthin 8 S àooIi . li e. v. FTC. 425 F24 583. 585-89
(D.C. Cit. 1970); NLRB v Inierboro Co@irscson lie., 388 F 2d 495. 501 (24 Cu 1967)
30. S Rua.eI1 Stayer Candies. Inc. v FTC, Trade Reg. Rep. (CCH) (1983-2
Trade Caissi Pat. 65.640(8th Cu 1983). ASO I nduL. Inc. v. United Slates. 548 F 2d 147
(6th Cit. 1977).
31. 2 ILC. DAVIS. ADMD41S7L TIVE L*w Tu riu § 12.7. 12.8 (24 ed 1979). 3
K.C DAVIS. An g1wImAiivE LAW Tu nsa § 14.2 (24 ed. 1980); see wrallv Peder-
iii, The D q Sq eaod, of Fimcao i, m Rqu Iato y A .cw. 64 VA. L REv 991
(197$).
32. 2 K.C. DAVIS. J5II PG 0041 31.at § 12.7. 12.8.3 K.C DAVIS. sI p,e note 31.ai
§ 14 2, see Pe4C81Ii,Ji pv note 31.1(1008-10.
-------
798 WESTERN NEW ENGLAND LAW REVIEW (Vol 6793
To evaluate the arguments, two concepts must be considered:
First, the distinction between “legislative” and “adjudicative” facts;
and second, the distinction between “accusatory” and “non-accusa-
tory” hearings.
“Adjudicative” facts are those facts which are peculiar to a par-
ticular party while “legislative” facts are the background facts that
the agency considers in formulating policy. Professor Kenneth Cuip
Davis, who onginally framed the analysis, has cited Londoner v
Denver, 33 and Ri-Metallic In vestment Co. v. State Board of Equaliza-
tion ,3 as illustrative of the difference between the two kinds of
facts. 35 The Supreme Court in Umred States v. Florida East Coast
Railway Co. ,36 used these two cases to distinguish between rulemak-
ing and adjudication. but the Court’s language also sheds light upon
what it would regard as adjudicative facts and what it would regard
as legislative facts:
The basic distinction between ruleniaking and adjudication is il-
lustrated by this Court’s treatment of two related cases under the
Due Process CLause of the Fourteenth Amendment. In Londoner
v. De,,ve , . . . the Court held that due process had not been ac-
corded a landowner who objected to the amount assessed against
his land as its share of the benefit resulting from the paving of the
street. Local procedure had accorded ham the right to file a written
complaint and objection, but not to be heard orally. This Court
held that due process of law required that he “have the right to
support his allegations by argument however brief, and, if need
be. by proof however informal.” . . But in the later case of Bi-
Metallic Investment Co. v. State Board of Equalization,, the
Court held that no hearing at all was constitutionally required
prior to a decision by state tax officers in Colorado to increase the
valuation of all taxable property in Denver by a substantial per-
centage. The Court distinguished L.o,udoner by stating that there a
small number of persons “exceptionally affected, in each case
upon individual grounds.””
Adjudicative facts were those relating to the specific assessment
aping the plaintiff in Londoner while legislative facts were those
that the state officials took into account in increasing the assessments
generally in Bi-Me:alhc Investment.
33 210 U S. 373 (1908)
34 239U.S 441(1915)
35 3K.C.DAv13,sp,onote31,aL *I45, 154
34. 410 U.S 224(1973)
37 Id a1244-45
-------
I 984J NECESSITY OF ADMINISTLiT/VE LAW JUDGE 799
Florida East Coast Railway, itself was an action by certain rail-
way companies challenging a rule promulgated by the Interstate
Commerce Commission (ICC) setting incentive per diem rates to
speed the return of extra freight cars and to encourage the purchase
of new ones. 38 The rule was prompted by a chronic freight car
shortage. The existence of the shortage was a legislative fact. Indeed
the shortage was so well known that Congress enacted legislation
giving the ICC authority to set incentive rates. 39 The schedule of per
diem rates was also found by the Supreme Court to be a legislative
fact because it applied to all the railroads, and it denied the railroads
an adjudicative hearing on those facts even though it was claimed
that the burden imposed by ICC’s rates would be a greater unposi-
tion to some of the railroads than to the others. 40
The real focus of Florida East Coast Railway is on the general
applicability of the rates to all railroads. What about an individual
railroad which claims that the rates should not apply to it because of
its peculiar facts? Under the Supreme Court’s analysis, it would
seem that the company would be entitled to an adjudicative hearing
on this question. It is in such a case that the distinction between “ac-
cusatory” and “non-accusatory” cases would arise, for the issue
would not be whether the party has engaged in misconduct but only
whether it is entitled to be treated differently than the other compa-
nies. Simi1 rly, a case in which the agency seeks to revoke or modify
a permit for technical reasons and not for any wrongdoing by the
party would also be non-accusatory. The argument is made that in
such case& notwithstanding the fact that the rights of individual par-
ties are being decided, the decision is really based on the determina-
tion of legislative facts for which adjudicative proceedings are not
appropriate. 4 ’ Let us exklnine more closely the merits of this
argument.
Initially it should be noted that an adjudicative hearing on a
waiver from a rule is not concerned with the merits of the rule, but
only with whether its application under a particular set of facts
would be arbitrary. Whether such application would be arbitrary is
determined by the policy served by the rule as set forth in the rule’s
statement of basis and purpose. There would be a right to an adjudi-
cative hearing only if the facts urged to support the waiver were dis-
3$. Id
39 Id at 225-26.
40. /dat225 .I.
41. Ped.ne . note 31. at 994-96.
-------
800 WESTE tJI NEW ENGLAND LAW REVIEW IVol 6793
puted. If the facts urged in support of the waiver were not disputed,
there would be no need for an adjudicative hearing to resolve ques-
tions of policy. 42 Sirnulnr considerations would also apply to persons
who contested their coverage under a rule on the grounds that the
facts with respect to them were completely different from the facts
considered by the agency in promulgating the rule.
The right to an adjudicative hearing on the facts can also differ
depending upon whether or not the agency is the moving party. No
useful purpose would be served by giving a party who applies for a
waiver or permit a hearing on the denial of the application when the
action is based solely upon undisputed facts produced by the appli-
cant. On the other hand, when the agency seeks to move against a
party on the basis of facts that it believes jusunes the action, the
agency’s refusal to accord a party an adjudicative hearing should be
more carefully scrutinized. Without a hearing on the facts a party
may have no real protection against arbitrary or misguided action by
the agency. 43 In short, the party that has the burden of producing
evidence to make aprzmajaae case (as distinguished from the bur-
den of persuasion)” can be an important factor in determi .’ng the
hearing rights of the parties.
The criticism is directed at the use of adjudicative proceedings
to resolve disputes over difficult technical issues where the data
42. Sew Un ed States v Storer Broadcasting Co.. 351 US. 192, 205 (1956). Indu.s-
trial Brosdes ing Co. v FCC, 437 F.2d 680. 683 (DC. Cit 1970), KCST-TV. Inc. v
FCC, 699 F.24 1185. 1191 (D.C. Cit. 1983).
43. CompavCooperLaboraioriv Comesr.50 1 F2d772(DC.Ctr. 1974)mzh
Pactre Indus . v. Products Safety Comes’n.. 555 F.24 677(9th Cit. 1977) In Cooper L.abo.
rwc w. the a new drug apph mon vu suesesarily rejected without a hearing because of
the appl’ in’s failure to produce ubsianual evidence showing that the drug was safe
and eff.onvs. Undse the law the burden wan on the new drug applicant to coese forward
with nith i,iat u . and the Food & Drug Administrations authority to require an cvi-
d uazy showing nireung speuñc standards in order to be entitled to an cvidcnuary
hearing on the ejw nn of an ippfr.tion had been upheld by the Supreme Court. Sew
Wesuberpi v. Hynson. Westooti & Dunt i ’i Inc.. 412 J.S. 609 (1973) ( Aeahng with the
standards requited to show the safety and ethesency of new drugs). In ?oct,w I3thAu1e1 ii
wan held that the Conrome ’ Products Safety Co”n’ ’on could not sufnmhrdy reject
objeonoen to a hen ii had iuued ‘ g in the use of vinyl chloride monomer. The ban had
been based on enu6c evidence indicating that the vinyl chloride was a carcinogen in
thes mr , the burden vu on the CPSC to establish the validity of its ban and the
court held that the agency could net summarily dispose of the case without a hearing
when the aentzk evidence was disputed. 555 F 24 at 684-85
44. On the distinction between the burden of producing evidence and the burden
of persuasion. ems McDonnell Douglas Corp v Green. 411 US 792. 800-06 (1973). En-
vuonmeetai Defense Fund. Inc v EPA. 548 F 24 999. 1012.18 (DC. Cit 1976). cer?
431 U.S. 925 (1977)
-------
1984J NECESSITY OF ADMINISTRATIVE LAW JUDGE 801
available is likely to be tncomplete. 5 Ideally, such an issue would be
decided by gathering the best qualified experts within the agency
and arriving at a consensus as to what action most closely would
accord with the statutory objectives. The decision thus made would
be an “institutional” one, and not simply the product of one person.
Such a view, however, overlooks the practical way in which an
agency usually works. Usually, the agency action is taken only after
the matter has been investigated and the action recommended by
agency employees. It would be unrealistic to ignore the danger that,
in the process of making the investigation and securing agency ap-
proval, those employees to some extent will have become comnutted
to a position. From the viewpoint of the party who opposes the
agency action, the agency is likely to be regarded as much an adver-
sary as if the proceeding were accusatory, especially if the agency
action turns on sharply disputed factual matters. Such a party may
be, for example, one who believes that such action does not ade-
quately protect human health or the environment, or who believes
that such action will unnecessarily restrict his freedom to market a
product or to construct a plant. In each of these cases, that the party
has not been charged with wrongdoing may seem minor when com-
pared to the consequences of the agency’s action to that person’s
health or livelihood.
It is, of course, true that the ultimate decision as to which side
the agency takes in a scientific dispute is likely to be more a policy
choice than a factual one, so that it should be judged solely by
whether it is consistent with the statute and reasonab1e. 6 This, how-
ever, should not be a reason for reducing the hearing rights of the
parties with respect to developing the facts and meeting the evidence
opposed to their position. A good example is the case of Seacoast
Anti-Pofiwion Leap e v. Cost/ c, 47 in which a nuclear-powered elec-
trical utility plant applied for a permit to discharge heated water into
the surrounding waters. The issue was not whether heated water is a
pollutant but whether the discharge of heated water in thtr m.slance
would injure the marine life and biota in the vicinity of the plant. 48
The parties opposing the building of the plant in that area were pub.-
lic interest groups. The Atirniniqrator, in deciding that the discharge
45. Pedsic,a p’a oic 31. ii 995-96; 2 K.C. DAvis. acte 3i, at § 127,
12.8.
46. S v lLduImel UQio Dep’I V A cn Peuoieu telL, 448 U S 607. 656
(1910); laduauial Union Dept v HodpoQ. 499 F 24467. 476 (D.C. Cit. 1974)
47 572 F.24 872 (1978)
48 Id c i 874-75
-------
802 WESTERN NEW ENGLAND LAW REVIEW (Vol 6793
would not injure the environment, relied upon the report of a panel
of agency experts which had not been made available to the parties
and contained references to material not in the record. On review,
the court noted that the issues in the case turned upon the credibility
of the experts, who should be subject to cross-examination for a
complete disclosure of the factual grounds for their conclusions.
The court also found that the facts upon which the opinions were
based must be facts in the record and not extra-record information
of which the experts had knowledge but which had not been dis-
closed to the other parties. 30
The court obviously believed that developing the facts through
adjudicative procedures was important to ensure not only that the
agency had all relevant facts before it, but also that the reviewing
court had a complete record. 5 ’ Cross-examination of scientists can-
not be dismissed as a worthless exercise, for it is a most effective way
of disclosing the factual underpinning of a sczentiñc opinion and the
assumptions that were made in arriving at it.
Professor Davis faults the court for requiring trial-type proce.
dures to resolve what he regards as a legislauve fact. 52 But the issue
was not the general proposition as to whether heated water was a
pollutant. but the much narrower question of whether the discharges
from that plant would be a pollutant in that particular environmen-
tal setting. The public utility was seeking to show why they would
not. Thus, the court’s characterization of the factual issues as sharply
49. Ii at 875. 881-82.
50 Id at 880. 881-82.
51. The court stated lilfdctermmaz ions such as the one ii issue here are not sde
on the record , then the faze of the Hampsco-Scabrook Estuary could be decided on the
bans of evidence that a court would never - or, what is worm. that a court could not be
sure “ ui’ 4 ” Id as 877
52. 2 LC. D*vis. nose 31. at § 12.7 Profeisor Davis cues she case of Taylor
v. Disu Engzneen. 567 F24 1332(5th Cit. I978) as an example of bow Seacoan
should have been It is questionable whether the companion is an apt one Tay-
I& involved the 1 l.l by the Corps of ‘pieen of aFermit to build an ‘e highway
over navigable waters. The statute. 33 u.s.c § 403. 406 (1976 a Supp. V 1981). made
no provinon for a bmnng before the Corps on the permit., and could be construed as
vcenng complete discretion in the Corps subject only to some limited court review to
determine whether the denial of a permit was arbitrary See Di Vossa Rentals . Inc v
Lee, 488 F.2d 674(5th Cit 1973), cited by the court in Taido#’. 567 F24 at 1336 In
S r.ck. the statute expressly required a hearing (The court dad not decide whether the
casewubroughzunder33 USC §1326or I342.bulbothrequiredapubbcbwing
See 572 F24 at 875 ii.3) Review of the ‘ 4 ”qratoYs decision was in the court of
appeals on the evidontzaay record made before the agency. See 33 U S C § 1369(b
(1976). Thus, the court had ample grounds for ruling that the bearing required was an
adj”dv’nve bearing.
-------
19841 NECESSITY OF ADAIINISTR4T/VE LAW JUDGE 803
contested and specific to the parties Lnvolved—in short, the typical
kind of adjudicative facts—seems accurate.”
Davis and Pederson also argue that, even when the issues are
adjudicative, the separation of functions should be dispensed with
because it precludes the agency from taking advantage of its institu-
tional expertise. 5 Since that expertise most likely had input into the
agency’s position previously, it means either that those who were re-
sponsible for formulating the agency’s position initially will be
judges on the merits of the dispute or the matter will be reviewed by
some other agency employee. How neutral a reviewing employee
may be depends upon the internal organ’7 tion of the agency and
the relationship between the employees within the agency. For ex-
ample, if the reviewing employee served under the same supervisor
who took part in deciding the agency’s initial position, the reviewing
employee might be reluctant to take a position which would conflict
with that supervisor. Further, the reviewing employee might be re-
luctant to overrule the original employees who participated in the
initial policy decision, if by doing so the reviewing employee may
meet with hostility. This will be true particularly if they meet on a
daily basis or if they are working together on other matters. It goes
without saying, of course, that the adminictrauve law judge is not
subject to any such pressures.
Another objection to adjudicative hearings is that they are ex-
pensive and time-consuming.” It is questionable, however, whether
informal proceedings would be any less expensive. Such proceedings
53 Sn572F2dai876
54 Pedersen, .ntp e note SI. at 996-97, 1008-09, 3 K.C. DAVIS. Js pra note 31, at
§ 17 15
55 Pedemen directs his objection to the expense incurred by having spcc sl.7 d
hearing officers, and concedes that the delay caused by having adjudicative hearings is
relatively minor. Pedersoc. ra note 31, at 008-b. One solution to the expense of each
agency having us own adm .nt trauve law judges is to establish a separate corps of ad-
ministrative law judges such as is proposed by S. 1275,98th Cong. lit Scsi. (1983). Pro-
fessor Davis also objects to the separation of functaoøs ca an inefficient use of agency
employees but also considers hearings permitting the use of oss-examinauon to be an
unacccusnlyezpensavcwaytouy legislative facu.2K.C DAvis.Jkp ra1iote3i.at 128
at 441. As to factual questions such as the i1 ’encr of a freight car shortage. this may be
mu. The difficulty with the analysis, which the author hopes is made clear by this article.
is that the line between what facts are “adjudicative” and what are legislative” is not
always dear-cut. Insofar as the relative expense of adjudicative versus Icu formal proce-
dures is a factor in determining the hearing rights of the parties. I I is to be noted that the
Supreme Court has approached the quenuon of i party’s bearing rights in Social Security
disability payment cases by balancing the cost to the Government Igainsi the benefits to
the other side. SE. Mathews v Eldridge. 424 U S 319 (1976) Sn aLro. Friendly. Some
x q.N 1 ,l23u PAL Rnv 1267(1975).
-------
804 WESTERJI NEW ENGLAND LAW REVIEW (Vol 6793
involve not only presenting written submissions but also the oppor-
tunity to orally comment on the agency action which is often permit-
ted if the agency believes the case is important or of special interest
to the public. In fact, the only substantial additional expense created
by an adjudicatory hearing before an administrative law judge is the
expense of bringing witnesses to the place of hearing and making
them available for cross-e;amination. To say that cross-examination
is likely to be unproductive really reflects an unnecessarily skeptical
attitude toward finding the truth in scientific controversies. 56 The
validity of scientific opinions rests upon the soundness of deductions
drawn from empirical data, a full disclosure of the facts relied upon
and the reasoning behind the expert conclusions. Such inquiry can
only aid the agency in reaching an informed opinion about the rela-
tive merits of each side. In short, while an agency should be given a
good deal of latitude in deciding policy, this should not be a grounds
for weakening the fact-finding process by reducing the availability of
cross -ey2fnin ation.
Finally, the argument is made that, if cross-eaminauon is nec-
essary to develop the record, this can be done more efficiently by a
pane’ of experts presiding as an inquisitorial board than can be ac-
complished by lawyers conducting cross.e mination before another
lawyer who is presiding as an administrative law judge. 5 ’ If expertise
is required on the part of the presiding officer, an answer would be to
have administrative law judges, who are either expert in the regu-
latory fields in which the agencies are involved or who could call
upon expert advice for assistance. Certainly, no one can quarrel with
permitting administrative law judges to use expert advice, provided
it does not compromise their independence. Whether the administra-
tive law judge should be an expert in the regulatory field is a differ-
ent question; all that need be said is that the importance of expertise
on the part of the presiding officer may be overemphasized. It is rare
that the resolution of a scientific dispute involves matters so arcane
that they cannot be explained in terms comprehensible to a layman
of ordinary intelligence. Indeed, it is a useful exercise to require that
they be explained for it will not only aid the reviewing court whose
members may not have expert knowledge in the field, but it may also
eIimin te reliance on technical jargon and help them reach a clearer
understanding of the issues.
56 Thi seems so be the real import of Pedeiien’s comment that wbcn the facts are
difficvtt to umnam. are 4i ’ 4 by policy rather than by the facts. Seir Peder-
sen o nose 31, as 1012.
57 Pedsrsen..n ,g nose 31. as 1019. 1032-33
-------
804 WESTERN NEW EMGLAND LAW REVIEW [ Vol 6793
involve not only presenting written submissions but also the oppor-
tunity to orally comment on the agency action which is often permit-
ted if the agency believes the case is important or of special interest
to the public. In fact, the only substantial additional expense created
by an adjudicatory hearing before an administrative law judge is the
expense of bringing witnesses to the place of hearing and making
them available for cross-examination. To say that cross-examination
is likely to be unproductive really reflects an unnecessanly skeptical
attitude toward finding the truth in scientific controversies . 56 The
validity of scientific opinions rests upon the soundness of deductions
drawn from empirical data, a full disclosure of the facts relied upon
and the reasoning behind the expert conclusions. Such inquiry can
only aid the agency in reaching an informed opinion about the rela-
tive merits of each side. In short, while an agency should be given a
good deal of latitude in deciding policy, this should not be a grounds
for weakening the fact-finding process by reducing the availability of
cross-examination.
Finally, the argument is made that, if cross-examination is nec-
essary to develop the record, this can be done more efficiently by a
panel of experts presiding as an inquisitorial board than can be ac-
complished by lawyers conducting cross-examination before another
lawyer who is presiding as an administrative law judge.” If expertise
is required on the part of the presiding officer, an answer would be to
have administrative law judges, who are either expert in the regu-
latory fields in which the agencies are involved or who could call
upon expert advice for assistance. Certainly, no one can quarrel with
permitting administrative law judges to use expert advice, provided
it does not compromise their independence. Whether the administra-
tive law judge should be an expert in the regulatory field is a differ-
ent question; all that need be said is that the importance of expertise
on the part of the presiding officer may be overemphasized. It is rare
that the resolution of a scientific dispute involves matters so arcane
that they cannot be explained in terms comprehensible to a layman
of ordinary intelligence. Indeed, it is a useful exercise to require that
they be explained for it will not only aid the reviewing court whose
members may not have expert knowledge in the field, but it may also
eliminate reliance on technical jargon and help them reach a clearer
understanding of the issues.
%. Thi semmi to be the real import of Pedenen’s mment thai when the facts are
difficult to aaceriam. 4 ’i w are thc’ ”d by policy rather than by the fscu Ser Peder-
sea .ntpv nose 31.at 1012.
57 Pvderiea,.n ere nose 31. at 1019. 1032-33.
-------
1984J NECESSITY OP ADMINISTRATIVE LAW JUDGE
V. CONCLUSION
The administrative agency with its combination of
prosecutorial, legislative and adjudicative functions presently has a
good deal of flexibility in the way it carries out its mission. But the
agency can only be effective if the public has confidence in the pro-
cess, a confidence created by the conviction that they have been
treated fairly and that the outcome is reasonable, even though they
may be unhappy about the ultimate judgment. The administrative
law judge helps to preserve the proper balance between the
prosecutorial, adjudicative and legislative functions of the agency. If
the agency, in its zeal to be more efficient, overrides adjudicative
safeguards in favor of strengthening its prosecutorial or legislative
functions, the courts may well feel the need to restore the balance by
exercising greater judicial oversight, with the net result being to sim-
ply transfer the cost of litigation from the agencies to the courts. It is
also possible that Congress may be persuaded by public opinion to
restrain the agency’s powers.
-------
• 1 V
I
UNITED STATES ENVIRONMENTAL PROTECT7ON AGENCY
,, / WASHINGTON 0 C 20460
4 j 0 jt
October 17, 1985
OFrICC 0?
GCNCP*i.. C0UlS(
MEMORANDUM
SUBJECT: Consu tations Between the JudicLal Officer and
- Agency Staff On Pending Adjudicatory Decisions
FROM: William F. Pedersen jrL, :P
Associate General Counsel
Air and Radiation Division (LE—132A)
TO: Francis S. Blake
General Counsel
You have asked me to prepare a memorandum outlining the
extent to which the Judicial Officer may consult witi’ Agency
staff on matters pending before him for decision. The
applicable rules are as follows:
1. In cases where no formal hearing has been held under
5 U.s.c. 554 et. seq . —— for example, in the appeal of a PSD
permit or the grant or initial denial ot a RCRA permit ——
the Judicial Officer may consult any person he pleases. No
statutory restrictions apply to these decisions. However, if
the consultations result in giving persons involved in actual
enforcement proceedings that raise the same questions heavy
influence on the permit decision, the courts will be inclined to
find legal problems. Bethlehem Steel Corp. v. EPA , 638 F.2d.
994 (7th Cjr. 1980), in addition, EPA regulations call for
even such informal permit decisions to be made on the basis of
an administrative record. 40 CFR 124.9, 124.18 (1984). Though
expert advice on how to interpret such a record is perTnisstble,
it may not extend to contributing extra—record facts for the
decision on appeal. Seacoast Anti—Pollution League v. Costle ,
572 F.2d. 872, 881—82 (1st Cir. £978). see also United
Steelworkers of America v, Marshall , 647 F.2d 1149, 121620
(D.C. Cir. 1980).
2. Where a formal hearing has been held, two additLonal
restrictions apply:
a. The Judicial Officer may not discuss the case
ex parte with any interested person outside the agency,” 5
U.S.C. section 557(d). The legislative history of the
-------
—2—
Government in the Sunshine Act, which added this rovlsion t3
the APA, states that “interested person” is “a wi e, inclusive
term covering any individual or other person with an interest
in the agency proceeding that is greater than the general
interest the public as a whole may have.” 94th Cong. 2d.
Sess. Joint Committee Print “Government in the Sunshine
Act Source Book” at 231 (quoting from Senate Report), 530
(quoting from Hcuse Report) (1976). The legislative hist rv
also makes clear that “ [ C]ornmunicatiorts solely between
agency employees are excluded from [ this] prohibition.” Id.
b. Finally, and most important here, the Judicial
Officer may not consult
an employee or agent engaged in the performance of
investigative or prosecuting functions for an agency
in (the case under appeal or a factually related
casel. 5 U.S.C. 554(d).
EPA regulations governing permit proceedings provide or
defi.iirig who is subject to this bar by naming a “trial staff”
when an adjudicatory proceeding begins. 40 CFR 124.77, 78.
For civil penalty hearings, the rules simply track the statute.
40 CFR 22.08. The pesticides cancellation rules do not
mention the subject, see 40 CFR Pt. 164, but the acce teo
custom is to define a trial staff before the hearing 3e Lns.
Where a formal, trial staff has been designated, of
course EPA should take the position that that defines the
limits of this particular barrier’s applicability. If this
has not been done, the judgment must be based on the general
law. The legislative history of the APA largely does not
address this issue. However, the Report of the Attorney
General’s Committee on Administrative Procedure, which led
directly to the enactment of the APA, described (at page 55)
the problem of separation of functions” as follows:
It is clear that when a controversy reaches the
stage of hearing and formal adjudication the persons
who did the actual work of investigating and building
up the case should play no part in the decision
A man who has buried himself in one side o an -
issue is disabled from bringing to its decision
that dispassionate judgment which Anglo—American
tradition demands of offjcj3lS who decLde questions...
(Tihe disqu3lifications produced by investigatLon
or advocacy are purely personal psychologic3l ones
-------
—3
which result from engaging in those types of activity;
and the problem is simply one of isolating those
who engage in the activity.
The Committee recommended that separation of functions
barriers not be extended further than needed to reach this
result, and the language of the APA indicates that Congress
chose this course.
There is very little case law on this point, but what
there is supports the view that only direct participation as
an advocate is automatically disqualifying. Supervising
advocates, or giving technical advice to advocates, should
not be disqualifying if it falls short of the kind of active
participation described in the Attorney General’s Committee
Report. See Asimow, ‘When the Curtain Falls: Separation of
Functions in the Federal Administrative Agencies, 81 Colum.
L. Rev. 759, 770, 773—777 (1981).
cc: Stan Abramson, LE—132P
Coke Cherney, LE—132W
Alan Eckert, LE—132A
Lisa Friedman, LE—132S
-------
I.
ii.
111.
lv.
v. settlement strategies
Jeffrey Miller( Steve ) I .J
Ill. DEIGNING & DEVELOPING A CASE STRATEGY
A. Case Development
1. General Elements
a. fact gathering
b. Issue identification and sorting
c. targeting (applying priorities etc. to facts)
d. analysis of strengths and weaknesses if case
e. identification of desired remedy
f. selection of forum
g. “packaging” the case
h. moving the case to conclusion
timing of initiation — e.g., judge shopping
when to negotiate and when to refuse
negotiaton while litigating
use of the “strategic threat of overfiling”
when does management get involved?
— media as an enforcement tool
B. Collection of Evidence (Barrett & Welks)
1. Investigative Techniques
a. Introduction
b. What is Evidence?
I. “Whatever is received to establish or disprove an alleged
fact.”
—ii. “Anything perceptable to the 5 senses which tends to prove
or disprove the facts in issue.”
lii. In short, evidence exists and can be found in many different
places and forms and the job of the Hazardous Waste
Inspector is to:
Find the evidence.
Recognize it for what it is when it is found.
Preserve the evidence.
Follow up on leads generated by evidence.
Communicate knowledge about the evidence. - ) - - .
Development in the Preparation of a Hazardous Waste
a.
- b.
C.
e.
c. Stages of
Case
1
-------
I. Gathering the Evidence
— This includes surveillance, interviews, search warrants,
sample taking, photographs, subpoenas, and document
review.
- ii. Case File Preparation and Organization of Documents
a. Developing a Detailed Chronol
b. ocuments - ) 4 , u Z J* -Jç
1. Inventory
2. Do not use originals
3. Index of relevant documents
c. Summaries of Transcripts
d. Data Summaries
1. Must be accurate
— ‘ 2. the source - ‘ , .. -‘
— is includes report writing, document
review, and compilation of data from the
documents in understandable formats.
iii. These two different phases of case preparation and
development are not always linear, but often will be done
simultaneously.
d. Gathering the Evidence
Preparation by the Inspector Before Leaving the Office. The
Inspector should:
a. review the permit.
b. know what is, and what is not authorized at the site.
c. if there is an operation manual on file, review it. (See B(2),
below, Information Gathering Tools )
z— d. find out as much background information as possible - the
more the Inspector knows about a site or area, the more
1 i..4u. his/her senses will be alerted to “something fishy”.
e. Take a notebook and take notes.
V - \ I’
ii. Gathering Evidence whileat the Scene.
— There are four sources of evidence while the Inspector is at
the scene of the investigation.
2
-------
a. Physical samples of material.
frc
T J( k
1. A certain amount of discretion should be used in taking
samples from the site. The Inspector must know what
c to sample and how to sample It. For example if the
\ Inspector finds unlabelled barrels that a facility
) employee admits contains a certain chemical but the
Inspector has no proof or guarantee that: (a) he is
/ correct (b) that he will admit what he said under
oath at the trial, then the Inspector should sample the
barrel.
2. When the Inspector does take samples, he/she should:
— Be familiar with the regulations relating to how
the sample should be taken.
— Know the type of bottle or other equipment that
should be used in taking the sample.
— Ask the question: “Why am I sampling this?
What do I want this sample to prove or show? Is
It representative of the material or the waste
that is on the site.? ’ t
— Sample Splitting Procedures - when to notify the
target.
3. Once the inspector has taken the sample, he/she should
follow the necessary chain-of-custody procedures.
— institutionalized chair of custody procedures
b. The Inspe or as a source of evidence.
It is important to note detail and to be alert. He/she
must allow time to let the senses notice things.
The sense perceptions become evidence—what is seen,
heard, tasted, smelled and felt are all evidence
3. Use of a camera.
— Cameras are an extension of the Inspector as
witness. Two main purposes or uses are:
— To show clearly and explicitly to others what was
seen when the Inspector was at the site.
— To preserve a piece of information so that it
d ot get lost or forgotten.
— all 1.1 the Inspector is taking a photograph
he s e should note the distance from the object,
the direction the camera is facing, the type of
camera and film and lighting conditions at the
time the photo is taken.
3
-------
c. eople as Sources of Information .
1. Who — company employees, neighbors, bystanders,
regular customers, police, utility people, anyone who
could have or did see what was going on.
2. Recognition and Uses of Hearsay
3. Obtaining Clear Admission Against Interest
4. Benefits and Detriments of Citizen Evidence
5. How - The Art of Interviewing.
d. Documents as Sources of Information - Inspector should:
— Know what he/she is authorized to ins i Vhen at a
site. A
— Take the time to check records so that he/she knows
what to look for.
- See B(2), below, Information Gathering Tools
iii. Evidence Preservation
Report Writing -
a. Communication - Central purpose is to communicate
information to the reader.
b. Strive to eliminate any possibility of erroneous conclusions,
inferences or interpretations.
c. Focus On the Facts.- An effectively prepared report saves
time for the officer and the reviewers by assisting those who
must make the final decision and take action on the report.
d. A Report Must be Complete and Provide a Basis for Action.
i. If the report is not complete and factual, time will be
wasted in attempting to remedy the situation by
making a supplemental investigation or report.
Ii. A report is a written record of the results as of the
investigation and provides the permanent record which
may later be used either as evidence itself or to
refresh a recollection.
e. General Standards of Investigative Writing.
i. Write to express — not to impress: The Inspector’s
purpose is to relate the facts and evidence necessary
to prove the elements of the offense charges. How the
evidence was acquired is neither relevant nor material,
except to show “the absence of a taint.”
4
-------
ii. Keep it simple - Inspector should write as he/she
talks. Write plainly and with simple language.
iii. Keep the reader in mind. — The Inspector should keep
in mind that the goal is to communicate to the
reader. The less energy that the reader spends
understanding the words and their reltionships, the
easier it will be for the reader to understand the
writer’s thoughts.
f. Essentials of Good Reports and Things to Include.
i. Surrounding circumstances. The Inspector should
include facts about the witnesses background if they
reflect on his credibility or small details that you
would not normally, ordinarily recall six months to a
year after doing the inspection or report.
g. Test for Completeness - The report is complete only if it
answers the questjons who, what, when, where, why and how.
i. The who in reports.
1. All individuals mentioned in a report should be
completely identified the first time the name is
mentioned; including their first, middle and last
names, if possible.
2. The individual should be identified by a brief
descriptive phrase identifying who he is. (e.g.,
whether its plant manager, neighbor, employee,
etc.)
3. A complete description of the person should be
given if the name or any other identifying
information is not available.
ii. The what in reports. - What happened? It means just
that, no more or no less. It does not mean what could
have happened or might have happened. It means
what, to the Inspectors’s knowledge, happened.
iii. The when in reports.
1. The when is the date or time the happening
occurred or an approximation if the exact time is
unknown.
iv. The where in reports. Where is a definitive place to
the exclusion of all other places. It should be so
clearly identified tht there is not confusion or
misinterpretation.
v. The why in reports.
5
-------
1. What is particularly significant with respect to
violations where intent is the element of the
offense. In such cases the report writer’s
objective is to set forth the facts that show the
intent with such clarity that there is no need for
his own conclusions or opinions to be in the
report. If the suspect or the individual states
why he did an act, the report would be fadtual if
it reported “Jones said that he dumped it
because.”
h. Conciseness
Conciseness is not omission - it takes practice to be
both concise and complete.
i. Conciseness may be omitting words but it is
never omitting facts, detail and necessary
explanation. Clarity and completeness are more
important that conciseness.
ii. Conciseness means simply the removal of
elaboration or what is not essential in the reort.
The Inspector should:
1. use short sentences and paragraphs
2. use active verbs
Clarity and Logical Presentation
The report must be written clearly in order to avoid
misinterpretation. Writing takes time and effort —
The Inspector should be instructed. Order your
thoughts; select those most useful to the reader;
arrange them logically; and select the words that will
best convey your thoughts to the reader.
— Pronouns - Careless use of personal pronouns is a
frequent cause of ambiguity. If it is not
absolutely clear to whom a pronoun refers, do
not use it.
— Concrete Expressions - Use a concrete specific
expression over an abstract or general
stternent. Poor writing often reflects a failure
to select words which paint a clear mental
picture.
— Avoid the “it” habit.
— Simplicity
- Punctuation — Punctuation is important in order
to make the meaning easy to understand.
6
-------
Example:
“The employee said the foreman is a blockhead.”
The employee said, “the foreman is a blockhead.”
The employee, “said the foreman,” is a blockhead.”
—QUESTIONS & ANSWERS—
2. Information Gathering Tools
a. Existing or Recorded Information
i. Environmental agency files
1. permit applications
2. correspondence
3. inspection reports
4. sampling data
5. citizen complaints
ii. RCRA required information
1. manifests
2. quarterly reports
3. notification filings
iii. EPA files
iv. OSHA and State OSHA Files
v. Workmen’s Compensation Claims
1. employee identities
2. operational information
3. responsible individuals
vi. Labor and Industry records
1. employee lists
2. employee status or continuation reports
vii. Corporate and partnership papers
viii. SEC filings
1. form 10—K
a. principal products and properties
b. legal proceedings
7
-------
c. financial data
d. business trends
e. directors and officers
2. form l0—q (quarterly report)
3. form 8-K (unscheduled material events)
4. annual report
ix. Consumer Protection files
1. complaints
2. consent orders
3. inspections or reports
x. ICC data
1. applications
2. inspections
3. violation results
xi. State Utilities Commission
xii. State transportation (hazardous substances) agency
xiii. County planning agency photos
xiv. Photographic and historical imagery
1. EPIC photos and analysis
2. National archives (Suitland, MD)
3. Soil conservation services, (NOAA, Salt Lake
City, UT)
4. EROS Data Center (US GS/NOAA, Sioux Falls,
SD)
5. Federal and state transportation agencies
6. Tax agencies
7. Environmental Monitoring System Lab
(EPIC Advanced Monitoring System Division, Las
Vegas, NEV)
8. Commercial aerial mapping
9. Local planning commissions
10. National Cartographic Information Center
(Reston, VA)
xv. Local records
1. tax maps
2. engineering maps
3. construction permits and applications
4. sewer line maps
5. title (deed) records
6. fire marshall
xvii. Local police officials and records
xviii. Uniform Commercial Code filings
8
-------
1. secured equipment
2. major creditors
xix. Court records
1. pleadings from private litigation
2. bankruptcy files
xx. Information systems
1. NEIC
2. Northeast project
xxi. Dunn and Bradstreét reports
xxii. Newspaper files
xxiii. Tax information
1. state returns
2. federal returns pursuant to 26 U.S.C. S6l03(i)
xxiv. Administrtive orders for information
1. section 104(e) of CERCLA (42 U.S.C. S9604(e])
2. section 3007 & 7001, of RCRA (42 U.S.C. S6927 &
6971.
3. section 308 of CWA (33 U.S.C. §1318)
4. sections 507 & 509 of CWA (33 U.S.C.
SS1367(e)& 1369)
5. state authority
xxv. Discovery Evidence
b. Inchoate Evidence
i. Interviews
ii. Inspections
iii. Sampling
iv. Surveillance/Observations
—QUESTIONS & ANSWERS—
( PROGRESSIVE EXERCISFi
C. Determining the Nature of the Violation(s) ‘ L I
1. identify the “cleanest” violations
9
-------
— or most significant
2. priorItizing etc. (use worksheet approach)
D. Deciding Who to Move Against
1. analysis of strengths & weaknesses of case
a. legal and equitable defenses
b. fact-gathering problems/gaps
c. political or policy problems
d. resource problems
- requires consultation with lawyers
2. deciding the appropriate target - --‘ 1&:. à’- \ l
a. subsidiary vs. parent and subsidiary J
b. piercing the corporate veil (either to get to parent Corp. or to
principa]s of closed corporation).
— must be able to show that the entity you seek is
the ”alter ego” of the corportion.
c. more than one defendant
3. the insolvent or tactical bankrupt
a. moving prior to bankrupt
b. avoiding “avoidable” forms of relief
c. help from the legislature
— “tax lien” status -- ‘ j
— authority to proceed dire’btly against guarantor or
insurer
— statutory right to sue parent of bankrupt subsidiary
\. - - where parent owns controlling interest less than 100%
15
E. Choice of Remedy and Forum
1. appropriateness of remedy
a. seriousness of violation
b. is remedy responsive to problem (e.g., criminal prosecution
won’t clean up ground water)
c. fairness
d. speed
2. character of forum
a. is judge, AL Board etc. likely to grant relief if case is
proven?
3. parallel civil and criminal proceedings
10
-------
a. not impossible
b. unpopular with some prosecutors
c. subject to constitutional limits
d. appropriate where different remedies are sought, or where
there is a civil corporate defendant and criminal individual
defendants.
4. character of defendant
a. lesser responses wasted on recalcitrants
b. big penalties unlikely against public body. These need
flexible use of equitable remedies. E.g., U.S. v. City of
Detroit .
5. character of violation and consequence
a. willful violation may warrant criminal prosecution,
especially if individuals can be prosecuted and the violation
is of consequence, such as cover-ups, actual environmental
harm or injury to persons.
b. technical violation of no consequence does not warrant
major action.
6. need for quick action
i. stop leaking
ii. prevent defendant from fleeing or hiding assets
7. need for precedent in interpreting law or as a lever for
seeking legislative action.
i. where case involves a new issue of law or a new interpretation
of an ambiguous term in whatever forum the facts supporting
your interpretation must be strong (“hard facts make bad law”)
Ii. you might want to lose to convince the legislature that you
need clarification.
8. need for media coverage of the program (some forums interest the
media more than others - courts generally higher visibility than
administrative proceedings)
9. effect of action on behavior by regulated entities
F. Packaging and Staffing
1. standarized enforcement file —
— guard against slavish following to detrim nt of case
2. adequate oversight without undue drag on process
3. staff resources a function of priority & complexity of the matter.
G. Moving the Case Along
1]
-------
1. docket tracking
I. computerized
ii. link with A.G.
lii. staff briefings
2. target points and sequencing
— use of timed decision points
— avoidance of bean counting
—QUESTIONS & ANSWERS—
H. Settlement -
k 1
a. identifying point of critical leverage
b. void otractd settlement negotiations with the pressure off -.- J
2. the vi style and the friendly style
3. “standar ‘Settlement terms
c
ra r 4 c’+ 4’ - ’ - u
— value aria intelligent waiver
4. false bottom lines and the real thing
\ p k:-” Ix ,k
a. eval ing defendant’s arguments
b. the “I can’t afford it” argument
c. technological infeasibility
d. no penalties (creative penalties)
5. use l rt at settlement tabie
6. sellin ’a settlement to the public
a. values and pitfalls of public participation
b. Negotiating press releases
7. “Negotiate or l at ’ic tomy
— most litigation settles through negotiaton.
used to enhance ability to negotiate.
Litigation may be
a. Discovery
i. Exposes strengths and weaknesses of both sides
ii Can pressure defendant in subtle ways-getting close to
problem in other areas, free discovery for priviate
litigants, threats to corporate officers.
-------
b. Pretrial motions can dispose of deadlock issues.
c. Judge forces negotiation - a quasi-mediator
d. Litigation creates useful deadlines to move negotiation which
only the judge can defer.
ici gDefenseStrateges
1. $he mbaras lig permissive documçnt
2. i* i&fl - r-
3. no environmental harm
4. de minimus violation
5. not a violation of statute
6. regulation unreasonable -i2X
7. hiding informatiori
8. collateral litigation
a. attack on regulation or reqUi ëmeñt —
b. attack on enforcement — §1983 suit
c. attack on investigation - Dow overflight case
9. aggressive litigation
10. political end runs -
. )._,
J. Better Enforcement Through Better Permi
a. Terms
1. Information provisions.
2. Regular reports.
3. Mandatory notification.
4. Create presumption of violation.
5. Shift burden of proof/burden of going forward.
6. Sampling of monitoring wells - periodically as appropriate
(certify like DMRs).
7. Periodic submission of manifests.
8. Sufficient financial guarantees/condition financial guarantees
upon compliance with permit and permit condition, as well as
Act and regulations.
9. Require compliance with other state laws/standards (air,
water laws).
10. Determine remedial actions in advance if appropriate, e.g.
drinking water supply replacement requirement (particularly
if stati . Js silent).
II. Prohibit cWscharge or leach to groundwaters (make
discharge/leach to groundwater a violation 1 not just that
which kicks in notice to agency or groundwater assessment).
12. Broad grounds for automatic revocation.
13. Prohibit.a modification/alteration of design or operati9 ’
14. Access to site, to records.
15. Tight drafting.
16. Issued on applicant% epresentations. NOt a guarantee
J11
13
-------
b. Procedures
1. Permit denial if applicant fails to affirmatively demonstrate
compliance with all laws.
— ‘ 2. Permit denial if applicant fails to accept permit condition in
advance of Issuance. I&jr c p ’
agency resources.
b. Favorable burden of proof/burden of going forward.
C. Leverage.
c. Keeps control of design and operation of the facility in
agency .
—QU TIONS & ANSWERS—
[ DISCUSSION PROBLEM ]
14
-------
LITIGATION PACKAGE
I. Introduction
Brief susTmary of alleged violations.
II. Subjects of Investigation.
A. Corporation
1) Complete name of company and parent corporation.
2) Complete address of company.
3) Complete address of facility associated with
offenses, including county.
4) State of incorporation of corporate subjects.
5) Registered agent for service.
6) Brief statement explaining nature of business and
size of company.
7) List any and all permits, either issued or
pending, EPA identification numbers or hauler
certification numbers.
8) Name of attorney representing the company, if
known.
B. Individuals
1) Name, title.
2) Approximate age.
3) Address (both home and work, if possible)
4) Position in company or relation to company.
III. Enforcement and Regulatory History
This section should include a description of all known
enforcement activity (State and Federal) taken against the
subject(s) in the past relating to environmental matters
generally. In addition, any previous efforts by the State
to remedy the present problem through informal,
administrative or civil means should be noted.
-------
IV. Description of Evidence.
A. Background Information.
—— A complete chronology of State-subject contacts
and cocTrnunications (both written and verbal) should be
prepared. Any written coirrnunications referenced in
the chronology (i.e., site complaints, civil penalty
assessment, inspection reports) should be attaci ed as
exhibi ts.
B. Photographs.
All relevant photographs should be identified by
date, photographer and a verbal description of what is
depi eted.
C. Laboratory Samples.
For each sample that was taken, the following
information should be provided:
1) Date of Sample.
2) Location.
3) Sampler
4) Description of type of container sample was taker
in.
5) DescriptIon of how sample was packed and
transported back to lab (i.e., iced or not, how
long it took to get It from the source to the
lab).
6) Description of chain-of—custody from source to
lab.
7) Names of analysts and what types of analyses were
performed.
8) Results.
(Note, lab analysis sheets and a copy of the
chain-of—custody form for each sample should be
attached as exhibits.)
D. Miscellaneous Information.
This should include any fact or piece of evidence
not included above that is relevant to the proposed
case.
—2—
-------
V. Environmental Impact:
This section should provide some assessment of the
significance of the environmental harm or human health
hazard resulting from the conduct under investigation.
This should be at a minimum, an educated estimate, based on
the type of pollution, the location, normal operating
capacity of facility, and other relevant ascertainable
facts.
VI. Mitigating factors.
Any fact which might excuse or exonerate the subjects
should be detailed in this section.
VII. Possible Defenses.
VIII. Possible Witnesses.
Any and all possible witnesses should be listed, in
alphabetical order with a brief description of who they are
and why they might be a witness. For example:
John Doe Regional Inspector Received the
original complaint
from the citizen.
Mr. X Driver for ABC company Was present on-site
when conversation
between %V and Y
occurred.
—3—
-------
INFORMATION GATHERING TOOLS
Keith Weiks
Existing or Recorded Information
A. Environmental agency files 4.cJ
1. permit applications
2. correspondence
3. inspection reports
4. sampling data
5. citizen complaints
B. RCRA required information
1. manifests
2. quarterly reports
3. notification filings
C. EPA Files
D. OSHA and State OSHA Files
E. Workmen’s Compensation Claims
1. employee identities e i r — -J i i —-
2. operational information
3. responsible individuals
F. Labor and Industry records
1. employee lists
2. employee status or continuation reports
G. Corporate and partnership papers
H. SEC filings
1. form lO—K-
a. principal products and properties—
b. legal proceedings
c. financial data
d. business trends
- e. directors and officers
2. form 1O-q (quarterly report)
3. form 8-K (unscheduled material events)
4. annual report— Q ;
I rr 4j 1 jr-A ’rt ,
(L
.1 r t’ii ,
-------
su ner j t i1e Z ç-
1. complaints
2. consent orders
3. inspectIon or reports
x. ICC data
1. applications— -
2. inspections
3. violation results
xi. State Utilities Commissions
xii. State transportation (hazardous substances) agency
xiii. County planning agency photos
XIV. Photographic and historical imagery
1. EPIC photos and analysis
2. National archives (Suitland, MD)
3. Soil conservation services, (NOAA, Salt Lake City, UT)
4. EROS Data Center (US GS/NOAA, Sioux Falls, SD)
5. Federal and state transportation agencies
6. Tax agencies
7. Environmental Monitoring System Lab
(EPIC Advanced Monitoring System Division, Las Vegas, NEV)
8. Commercial aerial mapping
9. Local planning commissions
10. National Cartographic Information Center (Reston, VA)
xv. Local records
1. tax maps
2. engineering maps
3. construction permits and applications
4. sewer line maps
5. title (deed) records
6. fire marshal
xvi. Local police officals and records
xvii. Uniform Commercial Code filings
1. secured equipment
2. major creditors
XV Court records
1. pleadings from private litigation
2. bankruptcy files
xix. Information systems
1. NEIC
2. Northeastproject J s 4 a.,, - ---
-------
xx. Dow Jones Reports
xxi. Dunn and Bradstreet reports-. t .c 43’ ‘ ‘ii 4 Q .
xxii. Tax information
1. s returns4t
2. federaljreturns pufstlant to 26
xxiii. Administrative orders for information
1. section 104(e) of CERCLA (42 U.S.C §9604 [ el)
2. section 3007, & 7001, of RCRA (42 U.S.C S6927 & 6971)
3. section 308 or CWA (33 U.S.C. §13 18)
4. section 507 & 509 of CWA (33 U.S.C. SS1367(e) & 1369)
5. state authority
xxiv. Discovery Evidence
xxv. Sales brochure and publications
xxvi. Trade associations and special interest publications
.— xxvii. Environmental audits and risk assessment-- — ”
xxiii. Insurance analyses and assessments. (Sanborn insurance maps: pre—
1929, Library of Congress)
b. Inchoate Evidence
i. Interviews
ii. Inspections
iii. Sampling
iv. Surveillance/Observations
-------
11—87
NEWS & ANALYSIS
17 ELR 10441
Hearings Before an EPA Administrative Law Judge
by Judge Gerald Harwood
Editors’ Summary: Practice before administrative agencies, especially EPA,
has always been an important part of an environmental lawyer’s job. Admin-
istrative practice is becoming increasingly important. Several statutes have
recently been amended to provide for the administrative assessment of civil
penalties by EPA. The first step after EPA proposes to assess a civil penalty
is generally a hearing before an EPA administrative law judge (AU). Judge
Harwood, EPA ‘s Chief Administrative Law Judge, describes the role of the
A U within EPA and the statutes under which adjudicatory hearings most
frequently arise. Judge Harwood then outlines the procedures followed in hear-
ings before EPA AUJs, from the administrative complaint through the issuance
of an initial decision.
W hen the Environmental Protection Agency (EPA)
proposes to assess a civil penalty against a party
for violating the law or regulations or to deny, modify,
or revoke a license or permit, due process requires that it
first grant the party a hearing on the matter. In most in-
stances such hearings are held before an administrative law
judge.’ The administrative law judge is an employee of
EPA who by statute is made largely independent of super-
vision and control by EPA to ensure the judge’s impar-
tiality in presiding over and deciding cases. 2
The Office of Administrative Law Judges
EPA’s administrative law judges constitute a staff office
under the Administrator. A Chief Administrative Law
Judge has general charge of the office but also presides
over cases like the other judges.’
The Office is authorized to have seven judges, including
the Chief Judge. For reasons that are largely historical,
two of the judges are located outside of Washington, D.C.,
one judge having his office at the Region IV headquarters
in Atlanta, Georgia, and the other judge at the Region VII
Judge Harwood is the Chief Administrative Law Judge for the United
States Environmental Protection Agency This ai:ticle was written by the
author in his private capacity No official report or endorsement by the
United States Environmental Protection Agency is intended or should
be inferred.
headquarters in Kansas City, Kansas. The remaining judges
are located at EPA headquarters in Washington, D.C.
Cases are assigned to the judges by the Chief Judge.
Assignments are made in rotation so far as practicable, ex-
cept that when the workload permits, the judges in Wash-
ington, D.C., will be assigned cases that are heard in
Washington, D.C., and the judges in Atlanta and Kansas
City will be assigned cases that will be heard in their respec-
tive cities.
Another factor taken into account in assigning cases is
the availability of the judge because of commitments to
cases already assigned and the relative size of the judge’s
workload. Although all judges theoretically start with the
same number of cases, for any number of reasons the per-
centage of cases that actually go to hearing may vary great-
ly between judges, and some cases will require considerably
more work than others. Finally, the Chief Judge may
depart from the rotational order to take a case that is of
unusual difficulty.
Statutes Providing for Hearings
Hearings before an administrative law judge are provided
under numerous statutory provisions. Cases currently arise
most frequently under the following statutes:
Clean Air Act §120 4 —assessment of a civil penalty
against a stationary source that is not in compliance with
any applicable emission requirement.
Clean Air Act 2O7(c)’—hearing on the recall of motor
vehicles that do not conform to emission standards.
Clean Water Act §402 6 —hearing on a challenge to a per-
mit regulat4ng the discharge of pollutants into the water
Resource Conservation and Recovery Act (RCRA)
§3008 7 —the assessment of a civil penalty and issuance of
a compliance order for failure to comply with requirements
relating to the generation, transportation, treatment,
storage, and disposal of hazardous waste.
Toxic Substances Control Act (TSCA) §16(a) 8 —the
assessment of a civil penalty for failure to comply with the
requirements relating to toxic substances.
Marine Protection, Research and Sanctuaries Act
§7420, ELR STAT 42226
§7541(c), ELR STAT 42247
§ 1342
§6928, ELR STAT RCRA 019
§2615(a)
I Administrative law judges preside over hearings that are required
by statute “to be determined on the record after opportunity for an
agency hearing “ Administrative Procedure Act (APA). 5 U S C
§554(a), ELR STAT ArmfIN PRoc 004 The statute may expressly
say that the hearing is to be “on the record,” or this may be infer-
red from the nature of the hearing provided seacoast Anti-Pqliution
League v Costle, 572 F 2d 872, 8 ELR 20207 (1st Cir 1978), cer:
denied. 439 U S 824 (1978) Administrative law judges may also
preside over other hearings if requested by EPA
2 The pay of the administrative law judge is prescribed by the Office
of Personnel Management 5 U S C §5372 The judge can be remov-
ed only for good cause established and determined by the Merit
Systems Protection Board after a hearing, 5 U S C §7521, and the
judge’s performance cannot be rated by EPA. 5 U S C § 4302, 4303
The judge’s impartiality is assured by a rigorous “separation of func-
tions” that insulates the judge from any supervision or direction by
agency employees who have participated in the investigation or pro-
secution of the case and that also prohibits any ex parte discussion
by the judge with any person ott any fact in issue APA, 5 U S C
§554(d), ELR STAT ADMIN PRoc 004
3 In addition to the judges, the staff of the Office consists of the hearing
clerk, who has custody of the case files, an assistant to the hearing
clerk, a legal staff assistant to assist the Chief Judge in the administra-
lion of the Office, secretaries, and one attorney advisor
4 42USC
S 42USC
6 33 USC
7 42 USC
8 I5USC
-------
17 ELR 10442
ENVIRONMENTAL LAW REPORFER
11—87
§105 (a) and (f)’—the assessment of a civil penalty for viola-
tion of the festrictions on ocean dumping and the revoca-
tion or suspension of a permit for dumping materials into
the ocean.
Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA) §3(c)(2)(B °—suspension of a registration
because of failure to secure additional data required to
maintain a registration of a pesticide.
FIFRA §6’ ‘—hearing on refusal to register a pesticide,
cancellation of a registration, suspension of a registration,
changes in the classification of a pesticide and applications
under FIFRA § 3 and 18 to modify a previous cancellation
or suspension order.
FIFRA §14(a)’ 2 —assessment of a civil penalty for viola-
tions of the Act.
Hearing Procedures
The procedures in a hearing before the administrative law
judge depend upon the statute under which the hearing is
brought. One basic procedure, however, applies in all
cases. All decisions issued by the administrative law judge
are reviewed by the Administrator or his delegate, the
Judicial Officer.’ 3 The review can be either discretionary
or mandatory, and this again depends upon the statute
under which the proceeding is brought.
Hearings Governed by Consolidated Rules
The largest number of cases currently being handled by
the administrative law judges are governed by the Consol-
idated Rules of Practice.’ 4 These rules apply to proceedings
under FIFRA § 14(a), RCRA §3008, TSCA § 16(a), and
Marine Protection, Research and Sanctuaries Act §l05.
A recent amendment also applies these rules to the assess-
ment of Class II penalties under Clean Water Act §309(g).”
In addition to general rules applicable to proceedings under
each of these provisions, the consolidated rules contain
supplemental rules specifically addressed to each provi-
sion.’,
Cases under the consolidated rules are instituted by the
issuance of a complaint setting out the acts and practices
being questioned.’ 8 In the case of a complaint under RCRA
§3008, the complaint must also contain a compliance
order.’ 9 An administrative law judge is not assigned to the
9 33 U S C §1415(a) and (t), ELR STAT 41865
10 7 U SC §i36a, ELR STAT FIFRA 005
Ii 7 U S C §i36d, ELR STAT FIFRA 012
I? 7 U Sc §136!, ELR STAT FIFRA 020
13 Since in most instances revie is by the Judicial Officer, reference
to the Judicial Officer hereafter will mean the Administrator when
the Administrator elects to re ,ew a case
14 4OCFR §22
15 40 C F R §22 01 The consolidated rules also state that they apply
to civil penalty cases under Clean Air Act §211 The Judicial Of-
ficer, however, has ruled that §211 does not authorize the imposi-
tion of administrative penalties See In Re Transportation, Inc , No
CAA(2 1 l)-27 (Feb 25, 1982)
16 33 U S C §1319(g) See 52 Fed Reg 30671 (Aug 17, 1987) Class
I I penalties may reach $125,000 See Liebesnian & Laws, The Water
Quahty Act of 1987 A Major Step Ahead in Assuring the Qua!ity
of the Nation’s Waters, 17 ELR 10311, 10317 (Aug 1987)
17 See, e g , supplemental rules for civil penalties under RCRA §3008,
4OCFR §2237
18 4OCFR §122 i3and22 14
19 40 C F R §22 37(e)
case until an answer is filed. Motions for an extension of
time to answer or for other relief filed prior to the answer
must be made to the Judicial Officer if the complaint jc
issued out of Washington, D.C., or to the Regior
Administrator, if the complaint emanated from a Regioni
Office.
Once the case has been assigned to an administrative law
judge, the parties are usually directed by the judge to
discuss settlement, if this has not already been done, and
to report on the status of settlement. 2 ° If the case cannot
be settled, the parties will be directed to exchange their evi-
dence by supplying lists of proposed witne es with a sum-
mary of their expected testimony and copies of documents
they intend to introduce into evidence. 2 ’ They may also
be directed to furnish such other information as the judge
considers relevant. This is almost always done by corres-
pondence, or if it cannot be satisfactorily handled by
correspondence, then by a telephone conference. Very rare-
ly do the proceedings under the consolidated rules require
prehearing conferences where the parties are personally
present. The matter is set down for a hearing once it has
been determined that settlement is unlikely. At least twenty
days notice of hearing is required 22 The parties, of course,
may still continue with their efforts to settle, and can set-
tie any time up to the commencement of the hearing Hear-
ings must be held either at the place where the respondent
is located or does business, in the city where EPA’s
Regional Office is located (if the complaint has been issued
by a Regional Office), or at EPA headquarters at Wash-
ington, D.C., unless there is some good reason for holding
it elsewhere. 23 The practice has been in most instances to
hold the hearing at the place where the respondent is
located or does business.
One special feature to be noted about practice under
consolidated rules is that discovery is not as liberal as
is under the Federal Rules of Civil Procedure where par-
ties are free to engage in discovery and the court gets in-
volved only if a party applies to it for some relief. There
is no discovery under the consolidated rules over and above
that obtained through the prehearing exchange except to
the extent permitted by the judge upon application by a
party. In fact, this is generally true of all hearings before
EPA. 2 ’
In proceedings under FIFRA § 14(a), there is no authority
to issue subpoenas. While this limits the ability of a party
to obtain information from someone unwilling to furnish
it, it does not leave the party totally without a remedy. In
such cases, if a party refuses to produce information in
its possession or control, the party requesting the infor-
matioti can ask the judge to draw the inference that the
information would be adverse to the position of the party
refusing to produce the information. 23 The inference,
however, has to flow logically from the nature of the
evidence being sought. For example, if a party claims that
it lacks the financial resources to pay a penalty but refuses
to produce statements of its financial condition, the in-
ference can be drawn that the party does have the means
to pay the penalty. It is unlikely, however, that any in-
20 4OCFR §22 18
21 4OCFR §2219(b)
22 4OCFR §2221(b)
23 40 C F R §22 i9(d)
24 4OCFR §2219(f)
25 See 40 C F R §22 04(c)(5)
-------
I 1—87
NEWS & ANALYSIS
17 ELR 10443
ference could be drawn from the refusal to produce finan-
11 statements as to who owns the corporation or whether
stock is held by one individual or several individuals.
Jnder the consolidated rules, the judge renders an “in-
ti decision.” Such a decision becomes the final decision
• f the EPA unless an appeal is taken by a party or the
Judicial Officer elects to review the decision sua sponte
within the time allowed in the consolidated rules. 26 The
rules also allow for the granting of an accelerated decision
(really summary judgment) when a party can demonstrate
that there is no dispute as to the material facts and the party
is entitled to judgment as a matter of law. ’
The consolidated rules allow a party to file a motion to
reopen an initial decision within 20 days after the initial
decision is issued to adduce additional evidence if it is
shown that there is good cause why the evidence could not
be presented at the hearing. 2 Outside of this limited ex-
ception, the administrative law judge has no further juris-
diction over the matter once the initial decision is issued.
Requests for extensions of time to appeal or for other relief
must be made to the Judicial Officer. 2 ’ Regardless of
whether the complaint issued out of the headquarters in
Washington, D.C., or out of a Regional Office, all appeals
are taken to the Judicial Officer. While the agency has no
further appeal to the courts from a final order, the other
party may seek judicial review of an adverse order. ’°
One final thing to be noted is that, in assessing a civil
penalty, the judge must consider any guidelines that the
agency has issued with respect to the assessment of civil
penalties under the Act involved. If the judge decides not
to follow the applicable guideline, the judge must give
reasons for not doing so.’ This requirement, however,
does not apply to the Judicial Officer.’ 2
Hearings Not Governed by the Consolidated Rules
The consolidated rules do not apply to all adjudicative
26 40 C F R §22 27(c)
27 4OCFR §2220
28 4OCFR §2228
29 40 C F R §122 27(c), 22 29(c)
30 Ii depends upon the statute as to whether judicial review is in the
district Court or in the Court of appeals Civii penalties assessed under
TSCA §16 and FIFRA §14 are by statute specifically made reviewable
in the court of appeals See TSCA §16(a)(3), 15 U S C §26 15(a)(3),
F1FRA §16(b), 7 U S C §136n, ELR STAT FIFRA 022 On the other
hand, RCRA has no comparable statutory provision for judicial
review of penalties assessed or compliance orders issued under RCRA
§3008 Review in such cases has been obtained in the district court
See Chemical Waste Management v United States Environmental
Protection Agency, 649 F Supp 347. i7 ELR 20521 (D D C i986)
3 i 40 C F R §22 27(b) For F IFRA civil penalty guidelines, see Guide-
lines for the Assessment of Civil Penalties under Section 14(a) of
the Federal Insecticide, Fungicide, and Rodenticide Act, as Amend-
ed, 39 Fed Reg 27711 (July 31, i974), for RCRA guidelines, see
Final RCRA Civil Penalty Policy (May 8, 1984), ELR ADMU
MATERiALS 35089. for the TSCA guidelines, see Guidelines for the
Assessment of Civil Penalties under Section 16 of the Toxic Sub-
stances Control Act. 45 Fed Reg 59770 (Sept 10, 1980), for the
general rules that have been supplemented by the following policy
statements Policy for Violations of the Regulations dealing with Poly-
chlorinated Biphenyls, 45 Fed Reg 59776 (Sept iO, 1980), Record-
keeping and Reporting Rules, TSCA. Sections 8, 12 and 13, Enforce-
ment Response Policy, (May 15, 1987), and Revised Enforcement
Response Policy for the Friable Asbsestos-Coritaifliflg Materials in
Schools Identification and Notification Regulation (June 22, 1984)
ror a recent decision by the Judicial Officer discussing the con-
sideration that the administrative law judge must give to the penalty
guidelines, see A V McDonald industries. RCRA(3008) Appeal No
86-2 (July 23. 1987)
32 ee A Y McDonald Industries. Inc , supra note 31
hearings conducted by EPA, presumably because the
nature of the hearing provided under some statutes makes
it desirable to have special rules of practice. A common
feature of these proceedings is that they are not instituted
by the usual complaint and answer. Instead, the hearing
is granted only after a party has demonstrated to EPA that
there are factual issues on which the party is entitled to
an evidentiary hearing. Like the consolidated rules, the pro-
cedures provide for prehearing conferences, limited
discovery over and above the prehearing exchange, accel-
erated decisions, motions, and the like. There are, however,
features peculiar to each that will be briefly’mentioned.
O Clean Air Act §120: Proceedings under §120 are
brought against a major stationary source (building, struc-
ture, or installation) that has not complied with the stan-
dards regulating the emission of pollutants into the at-
mosphere.’ 1 The penalty assessed is the savings realized by
the source in not complying with the standard. The sav-
ings, or economic benefit, is computed according to a com-
plex formula, and EPA has developed a computer program
for its calculation. 31
The first step in §120 proceedings is an EPA notice in-
forming the source of the agency’s finding of noncompli-
ance. At this point, the source has two options: calculate
the penalty following the agency’s model, or petition for
reconsideration on the ground that the finding of noncom-
pliance is wrong or that the source is entitled to one or more
of the exemptions allowed under the statute. 31 The statute
requires that EPA act on the petition and hear and deter-
mine the matter within 90 days. 16
EPA has provided for a hearing in two stages. If the
source contests the finding of noncompliance or asserts that
it is entitled to an exemption, a hearing is first held to deter-
mine the source’s liability for a penalty, which must be
completed and an initial decision issued within 90 days. 3 ’
If found liable, the source must then calculate the penal-
ty. If EPA disagrees with the amount, it recalculates the
penalty The source, If it objects to the recalculation, is
then given a hearing on its objections, which must also be
completed and decided within 90 days.” The 90-day limita-
tion applies only to the decision of the administrative law
judge, and the time can be xtende d if both parties agree.
In both the hearing on liability and the hearing on the
amount of the penalty an appeal is allowed to the Judicial
Officer, who must decide the appeal within 30 days. 39
U Clean Air Act §207(’c,J: Another proceeding under the
Clean Air Act w çre an adjudicative hearing is provided
is where EPA requires an automobile manufacturer to
recall a class or category of motor vehicles when EPA has
found that a substantial number of vehic’es do not con-
33 The procedures for hearing cas&s under Ciéan Air Act §120 are found
at4OCFR §66
34 See 45 Fed Reg 50086 (July 28, 1980), 50 Fed Reg 36732 (Sept
9, 1985) For cases dealing with the assessment of penalties under
§ 120, see Duquesne Light Co v Unned States Environmental Pro-
tection Agency, 698 F 2d 456, l3 ELR 20251 (D C Cir 1983), Du-
quesne Light Co v United States Environmental Proiection Agen—
cy, 791 F 2d 959, 16 ELR 20790 (D C C,r 1986), American Cyana-
mid Co v United States Environmental Protection Agency. 810 F 2d
493, 17 ELR 20642 (5th Cir 1987)
35 4OCFR §666611—6613
36 Clean Air Act §l20(b)(5). 42 U SC §7420(b)(5), ELR STAT 42227
37 4OCFR §166 41-6643 and 6693
38 4OCFR §6651-6654
39 4OCFR §6695
-------
17 ELR 10444
ENVIRONMENTAL LAW REPORrER
11—87
form to the emission standards though properly maintained
or used. ’°
Again, EPA notifies the party that it has been found
to be in noncompliance, in this case by sending it a notice
of nonconformity and directing it to submit a plan for
remedying the nonconformity within 45 days. It should be
evident that this may require the recall of thousands of
vehicles that have to be corrected in some fashion at the
manufacturer’s expense in order to bring them into com-
pliance. If the manufacturer disagrees with the finding of
nonconformity, he may request a hearing on this issue. 4 ’
This decision is final unless appealed to the Judicial Of-
ficer, or unless the Judicial Officer reviews it sua sponte. 4 ’
E FIFRA §6: In addition to proceedings for the assess-
ment of civil penalties under § 14(a), FIFRA §6 provides
for adjudicative hearings on the cancellation or suspen-
sion of a registration of a pesticide, on a refusal to register
a pesticide, or on a change in the classification of a
pesticide (e.g., changing the classification from a general
use to restricted use pesticide). 4 ’
There are two kinds of proceedings involving the
cancellation of a pesticide or change in classification. One
is where the Administrator issues a notice of intent to
cancel the pesticide or change the classification. The other
is where the Administrator issues a notice of his intention
to hold a hearing to determine whether to cancel the regis-
tration or change the classification of a pesticide. In both
cases the registrantsare sent a copy of the notice and the
notice is also published in the Federal Regtster. In the case
of a notice of intent to cancel the registration or change
the classification, an affected party must request a hear-
ing within 30 days of the receipt of the notice or the date,
of publication, whichever is later. This 30 day period is
jurisdictional. If the request for hearing is not received by
EPA within the 30 days, the registration is cancelled or
the classification is changed. The time for responding to
the notice of intent to hold a hearing is set by the Ad-
ministrator in the notice.
Cancellation hearings arelikely to involve complex issues
and numerous parties. The procedures themselves,
however, are not too dissimilar from those found in the
consolidated rules. Oneshould note that the general prac-
tice has been to réquire:the.presentation of direct testimony
in the form of’awritten verified statement, with the witness
being- available ft r cross-examination. Though EPA is
designated as the 1 .espondent in a proceeding brought on
a notice of intent to cancel, it has the burden of going for -
ward to present sufficient’evidence to make a.prima facié
case for cancellation.The burden of proof, however, is
upon theparty ’Supporting the continued registration. “ The
procedures allow, for an accelerated decision to be issued
in favor of EPA, but make no provision for issuing an ac-
celerated decision, against EPA. 4 ’
40 ‘The procedures governing hearings under Ciean Air Act §207(c) are
found at 4CC FR §85.i807.
41 40 C F.R. §85 1807(b)
42 40 C.F R. §85 1807(t)
43 The rocedures for heanngs under FIFRA §6 are found at 40 C.F R
§164
44 See 40 C F R §164 80 For a discussion of EPA’s and’ the Regis-
tram’s burden of proof, see Environmental Defense Fund, inc v
United States Environmentai Protecnon Agency, 548 F 2d 998,
i012- 18,7ELR200i2(DC Cir 1976),cert denied,431US 925
( 1977)
The statute also authorizes EPA to suspend a registra-
tion during the cancellation hearing if necessary to pro-
tect the public against an unreasonable risk of harm. 4 ’ jThis
proceeding is in the nature of a preliminary injunction an
is held under an expedited schedule, with 10 days bein ’
allowed for the initial decision. An administrative ,law
judge is not required to preside at these hearings, bi t in
practice an administrative law judge has presided.
o FIFRA §3(c): A party is also given a hearing if a regis-
tration is suspended under §3(c)(2)(B)(iv) fpr failure to
supply data to support a registration following a directive
by EPA to furnish such data. Again, EPA notifies the
registrant of its intention to suspend and the registrant must
request a hearing. 47 The issues in such a proceeding are
limited to determining whether the registrant has failed to
take the action that served as the basis for the notice of
intent to suspend and whether EPA’s determination as to
the disposition of existing stock of the pesticide is consis-
tent with the Act. 4 ’ The hearing must be concluded and
the determination made within 75 days after receipt of the
request for a hearing. 49
0 Clean Water Act §402: An adjudicative hearing is also
provided on the terms of final national pollutant discharge
elimination system (NPDES) permits issued under Clean
Water Act § 402.90 NPDES permits are issued after the af-
fected party and the public have been heard on the terms
of the permit (usually first issued as a draft permit). After
EPA has issued a final permit, an interested party can re-
quest a hearing on its terms.’ The grant of a hearing is
discretionary with EPA, and EPA may decide to deny the
hearing if there are no factual issues requiring a hearing.’
If a hearing is granted, a party is usually limited to th
evidence presented and objections made in comments on
the draft permit. The administrative record compiled dur-
ing the comment period must be received and admitted into
evidence, but a party can request that a sponsoring witness
be made available, and if none is, this can be considered
in evaluating the evidence.”
0 Other Statute,s: Several statutes have been amended
recently to provide for adjudicatory hearings for assess-
mentof civil penalties. These include the assessment of civil
penalties of up to $5,000 against a public water system
under Safe Drinking Water Act §1414(g), ’ 4 and the assess-
ment of civil penalties for violations of certain provisions
of the Comprehensive Environmental Response, Compen-
sation, and Liability Act
46 FIFRA §6(c), 7 U S C §i36d(c), ELR STAT FIFRA 012
47 FIFRA §3(c)(2)(B)(iv), 7 U S C §i36a(c)(2)(B)(iv), ELR STAT FIFRA
005
48 Id.
49
50
The procedures for hearings under Clean Water Act §402 are found
at4OCFR §i247 1— 124.9L
5i 4OCFR. 112474
52 40C.FR §12475
53 40 C F R §124 85(d)(2)
54 42U SC §300g-3(g), ELR STAT 4i 105,seeGray, The Safe Drink-
ing Water Ac: Amendments of 1986 Now a Tougher Act to Follow,
16 ELR 10338, 10342 (Nov i986)
55 CERCLA §109, 42 U S C §9609, ELR STAT 44031 See Atkeson
et ai, An Annotated History of the Superfund Amendment and
Reauthorization Act of 1986 (SARA), 17 ELR 10360, 10403 (Dec
i986)
Id.
45 See4OCFR § 1649i
-------
Memoiitndum
4
Subject
Procedures for Authorizing Application rj1 3, 1987
for Civil Search Warrants Under CERCLA
To All EES Attorneys Day .
Chi , El vironmental
En orc ment Section
Under § 104(e) of CERCL , as amended by SARA, the
United States may seek access by warrant, administrative order,
or court order. If access is obtained by administrative order,
the appropriate documents are issued by relevant client agencies.
If access is to be obtained by court order, then the Assistant
Attorney General of the Land and Natural Resources Division must
approve the complaint, upon referral from the relevant client
agency according to ordinary procedures. For access to be sought
through application on a civil CERCLA warrant, 1 the instant
memorandum will confirm the procedures to be used by the
Department of Justice.
Under 15.320-A-2 of the U.S. Attorney’s Manual,
application for warrant under CERCLA may not be handled
unilaterally by the U.S. Attorneys. Applications for such
warrants must be coordinated through the Environmental
Enforcement Section.
Clearance through the Environmental Enforcement Section
is important for a variety of reasons. First, the nature of the
governmental activities involved under CERCLA civil warrants may
be much broader and last considerably longer than an inspection
under the other federal environmental regulatory statutes.
Typically the latter require only a few days or weeks to conduct
routine environmental sampling. Under CERCLA, access may be
sought under a warrant for not only sampling, but even simple
1 The memorandum does not cover procedures for seeking a
criminal search warrant where a CERCLA violation may be
involved. All such matters are to be referred to the Director,
Environmental Crimes Unit, EES.
-------
—2—
removal—type activity, e.g., security/fencing, limited drum
removal. The greater relative complexity of the governmental
activity involved can be expected to provoke more challenges to
CERCLA civil warrants than those under other statutes and the
issues raised by CERCLA warrants may be much more complex.
Second, this is a relatively new and vital area of the l w. We
must ensure that maximum efforts are made to develop this
critical area of the law in an excellent manner. EES lawyers
must make all reasonable efforts to ensure that exercises of the
civil warrant authority under CERCLA will be vindicated by the
federal courts, through proper presentation of facts and legal
arguments by Departmental attorneys with experience in this area.
Finally, since our experience has shown that judicial challenges
to civil CERCLA warrants tend to move very rapidly, sometimes on
an emergency motion basis, EES needs to work closely with client
agencies on these matters so that the Division’s Appellate
Section is advised and prepared with sufficient lead time to
expeditiously address appellate proceedings.
Coordinating these warrant applications through EES
must be done on an expedited basis so that client agencies’
program objectives are achieved. Moreover, our resources must
not be consumed by duplicative work. Balancing the needs for
careful warrant application preparations with that for
expeditious handling of these matters, we will use the following
procedures:
1. The client agency will telephonically notify the
relevant EES Assistant Chief or Senior Lawyer when the Agency
plans to seek a civil warrant.
2. The client agency will follow-up the request by
expeditiously transmitting a short memorandum concisely
explaining why the warrant is needed with a draft copy of the
warrant application and supporting affidavits.
3. Upon receipt of the telephonic notification or
written request, whichever first occurs, the EES Assistant Chief
or Sr. Lawyer will arrange for either an EES staff attorney or an
AUSA to handle the review and prosecution of the application.
Unless a dispute develops between EES/AUSA personnel and the
client agency, the EES Assistant Chief or Sr. Lawyer may approve
the application. If such a dispute develops, it must be brought
to the attention of the Chief or Deputy Chief, EES for
resolution.
-------
—3-
4. Handling of these matters is to be afforded
priority on our docket. Moreover, the Chief or Assistant Chief
of the Appellate Section shall be advised of each application
request by the EES Assistant Chief or Sr. Lawyer as soon as
possible after notification by the client agency, so that
Appellate can be prepared to handle expeditiously appeal matters.
5. All civil actions to enforce civil CERCL warrants,
by way of application for civil contempt or other judicial
orders, shall be authorized in writing by the Assistant Attorney
General. Such actions shall be afforded highest priority on the
docket.
For general advice/guidance on handling CERCLA civil
warrant matters, contact John Fleuchaus, OR -Waste, 382-3109.
Attachment
-------
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
IN THE MATI’ER OF: )
)
) Case No. 89—444128
)
WARRANT AND ORDER
FOR ENTRY AND
INVESTIGATION
) PURSUANT TO SECTION
) 3007 OF THE RESOURCE
) CONSERVATION AND
) RECOVERY ACT, AS
) AMENDED, 42 U.S.C
) §6927, SECTION 308 OF
) THE CLEAN WATER ACT,
) AS AMENDED, 33 U.S.C.
) §1318, SECTION 114 OF
) THE CLEAN AIR ACT, AS
) AMENDED, 42 U.S.C.
) §7414, AND SECTION 11
) OF THE TOXIC SUBSTANCES
) AND CONTROL ACT, AS
) AMENDED, 15 U.S.C.
) §2610
TO: J. Scott Gordon, Florida Coordinator for the Waste
Compliance Section, United States Environmental Protection
Agency, (hereinafter referred to as “EPA”), Region IV, any
duly designated officer or employee of the EPA-National
Enforcement Investigations Center, any other duly designated
officer, employee, or representative of the Administrator of
the EPA.
-------
Application having been made by the United States Attorney
based upon an affidavit made before me, by 3. Scott Gordon on
behalf of the EPA for a warrant of entry, inspection,
reproduction of records, and sampling to determine compliance
of (hereinafter referred to as “the
premises”, and which is an entity more particularly described
in the attached Affidavit, which is hereby incorporated by
reference) with the Resource Conservation and Recovery Act,
the Clean Water Act, the Clean Air Act, the Toxic Substances
Control Act, as cited above; and, the court being satisfied
that there has been a sufficient showing that reasonable
legislative or administrative standards for conducting an
inspection and investigation have been satisfied;
IT IS HEREBY ORDERED that EPA through its duly
designated officer, 3. Scott Gordon and any authorized
attorney or representative of said Agency is hereby entitled
and authorized to have entry upon the premises.
IT IS FURTHER ORDERED that entry, inspection,
reproduction of records, and sampling shall be conducted
during daylight hours within reasonable limits, and in a
reasonable manner.
IT IS FURTHER ORDERED that the warrant shall be for the
purpose of conducting an entry, inspection, reproduction of
records, photography, and sampling pursuant to the laws cited
above consisting of the following activities:
1. Entry to, upon, or through the above described
2
-------
premises including all buildings, structures, pits, open
ground, and other sites where hazardous wastes are, or have
been, generated, stored, treated, or disposed of, or
transported from.
2. Inspection, sampling, photography, and
investigation of the premises.
3. Access to company records shall include, but not
be limited to, any record required to be kept under the
following federal laws:
42 u.s.c. §6901, et seq. , as amended
15 U.S.C. §2601, et sea. , as amended
33 u.s.c. §1251, et seq. , as amended
42 u.s.c. §7401, et sea. , as amended
4. Access to and reproduction of all records
(including computer records) pertaining to or relating to
hazardous wastes and processes which generate hazardous
wastes, wastewater discharge, air emissions, and handling of
PcB’s or P B equipment.
Any other records which pertain ‘to
, and/or the premises, compliance
with the above—cited laws may be reviewed and reproduced.
5. To take any further activities deemed necessary by
EPA to adequately inspect and sample the property as
authorized by any of the federal laws referenced above in
paragraph 3.
IT IS FURTHER ORDERED that if records are reproduced
off the premises, (1) any such record so removed shall be
3
-------
properly receipted for by the representatives of the EPA, (2)
\, may send one of its employees to
accompany the aforementioned representatives of EPA during
such reproduction, and (3) such records shall be returned
within 72 hours of the time they are first removed from the
premises.
IT IS FURTHER ORDERED that the United States of
America, EPA, through its duly designated representative or
representatives is hereby entitled to and shall be authorized
to seal the above described records in their containers, or
in containers to be provided, until such records can be
copied, provided that (1) sealed records which are necessary
for the conduct of the everyday business affairs of
and/or the premises, shall be £evi.eweu
and/or copied and unsealed first, (2) any other records which
are sealed shall be reviewed and/or copied and unsealed before
other records are examined and/or copied, and (3) the seals
placed on the containers which liold the records may be broken
only by a person authorized to place the seals or pursuant to
court order.
IT IS FURTHER ORDERED that EPA representatives may halt
and sample any waste shipments.
IT IS FURTHER ORDERED that a copy of this warrant shall
be left at the premises at the time of investigation.
IT IS FURTHER ORDERED that an inventory identifying any
material removed from the premises shall be furnished by the
4
-------
EPA to the owner, operator, or representative of
and/or the premises.
IT IS FURTHER ORDERED that this warrant shall be valid
for a period of 10 days from the date of this warrant.
IT IS FURTHER ORDERED that a prompt return of this
warrant shall be made to this court within ‘ 5 days from the
date hereof, showing this warrant has been executed, and the
entry and activity authorized herein has been completed within
the time specified.
U2 4 i1 1 ( .c I,Q’i
United States Magistrate
2-? j’
S o OEM.
5
-------
RETURN OF SEARCU WARRANT
CASE NO. 89—444128
1. DATE OF WARRANT: September 27, 1989
2. DATES OF WARRANT EXECUTED: Warrant was executed on October
2, 3, and 4, 1989.
3. A copy of the warrant was presented to
, upon arrival on October 2, 1989.
4. An inventory ot uo uwents copied and environmental samples
collected receipt was presented to Mr.
igned the receipt and accepted
a copy of the inventory upon completion of the warrant.
5. A total of twenty—six documents were either taken and returned
or copied on site. These documents included and pertained to
the following subjects:
Chemical Location List
Florida Department of Regulation correspondence
Safety Meeting notes
Water testing information
Solvent location by building
EPA Facility Identification Number
Chemical Inventory
Lab reports
Operational procedures
Procedures for control and reporting of spills and accidental
discharges
Maryland Assemblies, Inc., equipment list
Handwritten maintenance checklist
Blueprint of existing site
6. A video tape Of the /., facility
including buildings and disposal areas was produced. The
video tape was a standard 2/4/6 hour tape and was half filled.
Also, four rolls of 35 mm film were shot of the facility.
-------
7. A total of nineteen environmental samples were collected on
site. The samples taken are as follows: thirteen samples of
soil/contaminated media/sludge and seven liquid samples. A
set of split samples was offered and accepted by
I swear that this inventory is a true and detailed account of
the property taken by me on this warrant.
tJ2 ti L L
J. Scott Gordon
EPA Enforcement Officer
Region IV
Subscribed, sworn before me, and returned to me on this date.
__________ C.
DATE UNITED STATES MAGISTRAT
-------
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
In the Matter Of: )
)
) Civil No.
)
) Application for an
) Administrative Warrant
)
)
Now comes a duly designated representative of the
Administrator of the United States Environmental Protection
Agency (hereinafter referred to as “E.P.A.”), by and through
Charles S. White Assistant United States Attorney for the
Northern District of Florida, and applies for an
administrative warri ” 4 to enter, inspect, reproduce records,
and sample at the J, a munitions
manufacturor and assembly facility located on Highway 316A,
), Florida, to determine compliance with
ation and Recovery Act (RCPA), the Clean
Water Act (CWA), the Clean Air Act (CAA), and the Toxic
Substances Control Act (TSCA) as authorized by Section 3007
of RCRA, 42 U.S.C. §6927, Section 308 of CWA, 33 U.S.C. §1318,
Section 114 of CAA, 42 U.S.C. §7414, and Section 11 of TSCA,
15 U.S.C. §2610. In support of this application, the duly
designated
-------
representative of the Administrator respectfully submits an
affidavit and proposed warrant.
Respectfully submitted,
K. M. MOORE
United States Attorney
CHARLES S. WHITE
Assistant U.S. Attorney
Northern District of Florida
227 N. Bronough St., Ste. 4014
Tallahassee, Florida 32301
(904) 681—7360
-------
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
IN THE MATTER OF ) TALLAHASSEE
) Case No. 89—444128
)
)
)
) Affidavit in Support of
) Application for an
Administrative Warrant
State of Florida:
County of Taylor:
I, James Scott Gordon, being duly sworn upon his oath,
according to law, deposes and says:
1. I am a compliance/enforcement officer with the
United States Environmental Protection Agency (hereinafter
referred to as the “EPA”);, Region IV, and have been duly
designated by the administrator of the EPA for the purpose of
conducting inspections pursuant to all Federal laws
administered by the EPA. I hereby apply for an administrative
warrant of entry, inspection, reproduction of records, and
sampling of premises in the possession, custody, or control
of
-------
2. (hereinafter referred
to as “the premises”), is a munitions manufacturing and
assembly facility whose business premises are located on Rural
Route 1, on the west side of Puckett Road, ten miles south of
and marked by a stone monument etched with
their name. The facility rests on approximately 513 acres of
heavily wooded, low lying, swamp land and contains about
eighty-seven buildings.
3. In March, 1989, I was approached by an official of
the U.S. Occupational Safety and Health Administration (OSHA)
concerning possible violations of environmental laws at the
premises.
4. On April 19-21 1989, I reviewed OSHA files in
Jacksonville, Florida, relating to manufacturing operations
at the premises. I discovered that the premises utilized
large quantities of industrial solvents which are common to
ordnance manufacturing. OSHA’s records of the premises
indicate that wastes and industrial solvents were contained
and disposed of at various locations on the premises.
Photographs of production buildings on the premises indicate
that wastes were vented into the atmosphere from production
areas. Review of operations records of the premises indicate
that solvent—containing materials were baked in drying ovens
as a part of the production process. Furthermore, corroded
chemical drums were observed in areas of dense vegetation.
Drums containing hazardous wastes must be stored in compliance
2
-------
with RCRA.
5. The OSHA records reveal that
and/or the premises, produces, in part, grenade fuses,
flare columns, 40mm cartridges, squibs, impulse cartridges,
Mill and 14119 simulators (booby traps). In the production of
pyrotechnic ordnance, the facility uses incendiary compounds
such as lead azide, potassium percholorate, antimony sulfide,
magnesium, and black powder. The ordnance production requires
the use of industrial resins and large volumes of solvents
such as methylene chloride, toluene, methyl ethyl ketone,
vinyl chloride and xylene.
6. An adjacent facility located approximately one mile
south of the premises engaged in operations similar to those
of the premises, has historically produced hazardous waste.
A review of EPA files revealed that this facility has notified
EPA of its hazardous waste activities and is a fully regulated
large quantity generator of hazardous waste. This facility
produces metal bearing and solvent bearing waste streams that
are transported from their facility to a licensed hazardous
waste disposal facility. EPA records do not show any movement
of hazardous waste from the facility to the premises.
7. On May 23, 1989, I accompanied Ashwin Patel, a
representative of the Florida Department of Environmental
Regulation (FDER), to evaluate the location of an area
proposed in an emergency permit application from
and/or the premises, for thermal treatment
3
-------
of explosive powders. In the area designated for thermal
treatment, a strong solvent smell was noted from the freshly
plowed plot. Evidence of metal drum debris was also observed
in this area. On the perimeter of the area was evidence of
40 to 50 fifty—five gallon drum indentions in the sandy soil
suggesting the recent storage of drums in the area. The visit
was limited in scope to the 1/2 acre treatment area.
Industrial equipment was also scattered around the perimeter
of this treatment area. I was informed that some of this
machinery was being used for parts.
8. During the site visit, Roger Williams, Safety
Manager for \and/or the premises,
informed me that the company produces only 5 gallons of
acetone waste per year which is reused, therefore, no
hazardous waste has ever been transported off site for
disposal.
9. Under the Resource Conservation and Recovery Act
(RCRA), spent solvents such as methylene chloride, acetone,
toluene, methyl ethyl ketone, vinyl chloride, and xylene are
considered hazardous wastes under 40 C.F.R. §261. These
wastes must be properly managed and disposed of at a permitted
hazardous waste facility. To treat, store or dispose of
hazardous waste a facility must notify EPA of such activity,
must apply for a permit, and obtain a permit prior to such
activities.
10. I have reviewed the Region IV permit files and
4
-------
and/or the premises, has failed to
obtain any of the permits required under RCRA to manage its
hazardous wastes. In addition, I have made a full review of
FDER’s files and have maintained for the past several months
almost daily contact with Ashwin Patel of that agency. M ’
investigation reveals that, with the exception of the
emergency permit for thermal treatment issued in July, 1989,
has failed to obtain any of the
permits required under state law.
11. Based on the above statements I believe that
and or the premises, is in
violation of the permitting requirements of RCRA, as well as
other requirements governing the management of hazardous
wastes.
12. I have reviewed EPA Region IV records pertaining
the Clean Water Act (CWA) and Clean Air Act (CAA).
‘has never sought a permit under either of
these authorities. Over the past six years, I have
participated in the inspection of over twenty-five munitions
manufacturing facilities conducting similar operations to that
of and/or the premises. Based on
my experience I would expect that a companyof this type and
size would discharge pøllutants such as xylene, toluene,
acetone, and methylene chloride to the environment that would
subject it to the requirements of the CWA and CAA.
13. Industrial equipment was observed around the
5
-------
perimeter of the thermal treatment area. Prior to 1982,
industrial equipment of this sort made use of polych].orinated
biphenyls (PCB) in the hydraulic systems. PCBs and equipment
containing PCBs are regulated under the Toxic Substances
Control Act (TSCA). The industrial equipment observed on tile
premises appear to be the type manufactured in the 1950’s and
1960’s and are therefore, likely to contain PCB5. Based upon
my observations at the time of the site visit, no effort had
been made to comply with TSCA requirements. Specifically, the
equipment was not labeled and there was no indication of the
removal of PCBs.
14. On April 12, 1989 and subsequently during the OSHA
file review of April 19-21, 1989, OSHA officials informed me
that -. ;, and/or the premises, had
denied OSHA inspectors access t its facility on two separate
occasions. On both of these occasions OSHA officials were
compelled to obtain administrative search warrants. As a
result, OSHA no longer seeks consensual entry to the premises,
and obtains a Search warrant prior to conducting any
inspection. I believe that EPA will also be denied access
without a warrant.
15. On September 27, 1989, I spoke with a former
employee of regarding the disposal
of solvents namely acetone, xylene, toluene and methylene
chloride and ordnance at the facility. The former employee
stated that solvents were routinely poured out onto the ground
6
-------
after each shift adjacent to each production building or
placed in barrels. His description of one of the areas
matches my observations during my site visit with FDER for the
purpose of the emergency permit. The waste powder which
accumulated on the floor was swept outside and any large piec e
of ordnance and solvents were picked up and taken to an on
site “burning area” to be set on fire on a weekly basis. The
employee also stated that signs stating “Not for drinking”
were painted over whenever a regulatory inspection was
anticipated. These signs would be restenciled after the
inspection teams left.
16. I reviewed aerial photographs taken of the
premises during June 1989. The photographs reveal dozens of
fifty—five gallon drums scattered around the premises. In
addition, four burn pads can be identified on the premises.
Burn pads are small clearings upon which powder, ordnance and
solvents are disposed of by burning. The burn pads observed
in the photographs were black with soot indicating recent
usage. These burn pads would require hazardous waste
treatment permits prior to usage by the premises.
17. The entry, inspection, reproduction of records,
and sampling will be carried out with .reasønable promptness,
and a copy of the results of analyses performed on any samples
or material collected will be furnished to the owner,
operator, or agent in charge of the subject premises. If
requested, a portion of each sample will be provided.
7
-------
18. A return will be made to the court at the
completion of the inspection, reproduction of records, and
sampling.
Environmental Engineer
Waste Management Division
Region IV
United States Environmental
Protection Agency
Before me, a notary public of the State of ,
County of , on this day of________
19_, personally appeared , and upon oath
stated that the facts set forth in this application are true
to his(her) knowledge and belief.
A Notary Public of__________
My Commissions Expires
8
-------
• ,it ST 4 ,
F UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
4
MAR ij
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER Directive II 9833.3A
MEMORANDUM
SUBJECT: Interim Guidance on Administrative Records for
Sel O çLA Response Actions
FROM: J. Winst Porter
Assistant Administrator
TO: Regional Administrators, Regions I-X
This memorandum sets forth the policy and procedures
governing administrative records for selection of response
actions under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), as amended by
the Superfund Amendments and Reauthorization Act of 1986 (SARA).
Attachment
cc: Director, Waste Management Division,
Regions I, IV, V, VII, and viii
Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division,
Regions III and VI
Director, Toxics and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
Regional Counsel, Regions I—X
-------
INTERIM GUIDANCE ON ADMINISTRATIVE RECORDS
FOR THE
SELECTION OF CERCLA RESPONSE ACTIONS
U.S. Environmental Protection Agency
Office of Solid Waste and Emergency Response
Washington, D.C. 20460
-------
TABLE OF CONTENTS
#9833. 3A
Multiple Response Actions
Compilation
Index
Location
1. General
2. Special Documents
F. Public Availability
1. General
2. Remedial Actions
3. Removal Action
G. Maintaining the Record
H. Confidential File
I. Copying
J. Micrographics
K. Certification
6
6
7
7
8
9
9
10
11
11
12
13
15
I
18’
18
19
20
20
23
26
26
27
27
28
Decrees . . . 28
29
I. INTRODUCTION
A. P.rp.c e and Scope of the Administrative Record
B. Judicial Review
C. Public Participation
II. PROCEDURES FOR ESTABLISHING TEE ADMINISTRATIVE RECORD
A. Administrative Record Coordinator
B.
C.
D.
E.
4
5
III. CONTENTS OF TIlE ADMINISTRATIVE RECORD
A. Remedial Actions
B. Removal Actions
C. Imminent and Substantial Endangerment
D. Public Comments
E. Enforcement Actions
1. Negotiation Documents
2. PRPLeadRI/FS
3. Administrative Orders and Consent
F. Excluded Documents
1
-------
#9833. 3A
GLOSSARY
APPENDI CES
Appendix A.
Appendix B.
Appendix C.
Appendix D.
Appendix E.
Appendix F.
Appendix G.
Appendix H.
Appendix I.
Appendix J.
Appendix K.
Appendix L.
Appendix M.
29
30
32
33
34
34
34
35
• . . . 37
• . . . 37
• . . . 37
• . . . 37
• . • . 38
39
• . . . 40
• . . . 41
• . . . 41
42
45
• . . • 47
5].
• 53
• 55
59
• 60
6].
• 62
63
64
• 65
• 73
G. Draft Documents and Internal Memoranda
H. Privileged Documents
I. Guidance Documents
J. hnical Literature
K. Legal Sources
L. NPL Rulemaking Docket Information
N. RCRA Documents
N. Post-Decision Documents
IV. INVOLVEMENT OF OTHER PARTIES
A. States
1. State Involvement in Federal—Lead Sites
2. Federal Involvement in State-Lead Sites
B. Federal Facilities
C. ATSDR
D. Natural Resources Trustees
V. DISCL INER
VI. FURTHER INFORMATION
Sections 113(j)-(k) of CERCLA
Model File Structure
Model Index
Model Position Description for Administrative
Record Coordinator
Compendium of Response Selection Guidance
Model Transmittal Cover Letter
Model Document Transmittal Acknowledgement
Model Fact Sheet
Model Notice of Public Availability
Microform Approval Memorandum
Model Certification
Preamble to Subpart I of the proposed NCP
Subpart I of the proposed NCP
2
-------
#9833. 3A
I. INTRODUCTION
A. Purpose and Scope of the Administrative Record
This guidance addresses the establishment of administrativ
records un r #ll3 of the Coi prehensiVe Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), as amended by
the superfund Amendments and Reauthorization Act of 1986 (SARA).*
Section 113(k) (1) of CERCLA requires the establishment of
administrative records upon which the President shall base the
selection of a response action (see Appendix A for the complete
statutory language).
Chapter I of this guidance introduces the purpose and scope
of the administrative record. Chapter II reviews procedures for
compiling and maintaining the administrative record. Chapter III
examines the various types of documents which should be included
in the administrative record. Chapter IV discusses the
involvement in establishing the record of parties outside the
Agency. Finally, this guidance includes a glossary of frequently
used terms and acronyms as well as several appendices.
Although written for use by the United States Environmental
Protection Agency (EPA), this guidance can be adapted for use by
State and Federal agencies required to establish administrative
records for the selection of CERCLA response actions. This
guidance is not intended as a treatise on general principles of
administrative law with regard to administrative records. This
guidance reflects, to the extent feasible, proposed revisions to
the National Contingency Plan (NCP) published on December 21,
1988 (53 FR 51394) (see Appendices L and N). The Agency may
refine or change this memorandum when it promulgates the
regulations in final form.
The administrative record established under §113(k) of
CERCLA serves two primary purposes. First, the basis for the
response selection is set forth in the record and under §113(j),
judicial review of any issue concerning the adequacy of a
response selection is limited to the record. Second, §113(k)
requires that the administrative record act as a vehicle for
public participation in the selection of the response action.
This guidance document i iscuSseS procedures developed to ensure
that the Agency’s administrative records meet these twin
purposes.
The basis of the Agency’s selection of a response action
must be documented in the administrative record. The record
sh u1d include the documents considered or relied on by the
Agency in making the response action decision for the site. For
References made to CERCLA throughout this memorandum should
be interpreted as meaning “CERCLA, as amended by SARA.”
3
-------
#9833. 3A
purposes of this guidance, documents considered by the Agency are
documents that were relied upon or comments which the Agency
solicited or received from interested parties and the public.
The following principles should be applied in establishing
administra. vereCOrdS
o The record should be compiled as documents relating to the
selection of the response action are generated or received
by the Agency;
o The record should include documents that form the basis for
the Agency’s decision, whether or not they support the
Agency’s response selection; and
o The record should be a contemporaneous explanation of the
basis for the selection of a response action.
The effort to establish adequate administrative records
encompasses a vast array of people including: Administrative
Record Coordinators, Remedial Project Managers (RPMs), On—Scene
Coordinators (OSCs), enforcement staff, records management staff,
Regional Counsel, Community Relations Coordinators (CRCs), other
Federal agencies, States, CERCLA contractors, and the public.
The roles and responsibilities of these people and their
interaction forms an integral part of this guidance.
B. Judicial Review
Section 113(j) (1) of CERCLA provides that judicial review of
any issues concerning the adequacy of any response action shall
be limited to the administrative record.
Judicial review on the basis of an administrative record can
provide numerous benefits. Under §113(j) of CERCLA and general
principles of administrative law, the trial court reviewing the
Agency’s selection of response action is limited to the facts as
set out in the administrative record. As a result, arguments
that potentially responsible parties (PRPs) or citizens raise for
the first time in court concerning the selection of a response
action should not be considered.
Record review saves time by limiting the scope of trials,
thereby saving the Agency’s resources for cleanup rather than
litigation. Courts will not allow a party challenging an Agency
decision to use discovery, hearings, or additional fact finding
to look beyond the Agency’s administrative record, except in very
limited circumstances. In particular, courts generally will not
pepnit persons challenging the Agency’s response decision to
depose Agency decision-makers, staff, or contractors concerning
the selection of the response action.
Furthermore, the administrative record may be cited long
after officials responsible for the response decisions have moved
4
-------
#9833. 3A
into different positions or have left the Agency. Judicial
review limited to the record will save the Agency the time
involved in locating former employees who may not remember the
facts and circumstances underlying decisions made at a much
earlier time.
Moreover, in ruling on challenges to the response action
decision, the court will apply the highly deferential “arbitrary
and capricious” standard of review set forth in §l13(j)(2) of
CERCLA. Under that standard, a court does not substitute its
judgment for that of the Agency, but only overturns the response
selection decision if it can be shown “on the administrative
record, that the decision was arbitrary and capricious or
otherwise not in accordance with the law.” -
However, the extent to which the Agency attains the benefits
of judicial review limited to the record depends on the quality
and completeness of each record. If the record is incomplete or
fails to provide an adequate explanation of the basis for the
Agency’s response action selection, the court may remand the case
to the Agency for reconsideration of its decision. Proper and
thorough compilation of the record will help avoid these results.
C. Public Participation
Section 113(k) (2) of CERCLA requires that the public have
the opportunity to participate in the development of the
administrative record for response selection. Section 117 of
CERCLA also includes provisions for public participation in the
remedial action selection process. Both sections reflect a
statutory emphasis on public participation in the development of
the record and the response selection. Participation by
interested persons will ensure that the Agency has considered the
concerns of the public, including PRPs, in selecting a response
action. In addition, for purposes of administrative and judicial
review, the record will contain documents that reflect the views
of the public, including PRPs, concerning the selection of a
response action.
Without an opportunity for involvement of interested parties
in the development of the administrative record, persons
challenging a response action may argue that judicial review
should not be limited to the record. The Agency must, therefore,
make the information considered or relied on in selecting a
response action available to the public, provide an appropriate
opportunity for public comment on this information, place
comments and information received from the public in the record,
and reflect in the record the Agency’s consideration of this
information.
5
-------
#9833. 3A
II. PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD
A. Administrative Record Coordinator
Each Region. should designate a person to be the
Administrative Record Coordinator. As delegated, the Record
Coordinator generally has the duty of ensuring the adequate
compilation and maintenance of the administrative record files.
The Record Coordinator will r ot be responsible for deciding which
documents are included in a record file. Those decisions should
be made jointly by the OSC or RPM and the ORC. The Record
Coordinator’s duties ordinarily include:
o Developing procedures for the creation of record files;
o Ensuring notification of the availability of the record
files for public inspection;
o Ensuring availability of the record at the location at or
near the site;
o Coordinating efforts to obtain the necessary documents;
o Updating the record files and indices on a regular basis
(e.g., quarterly);
o Compiling information in a central Regional location;
o Indexing the record files;
o Ensuring availability of the record file for copying;
o Ensuring availability of validated sampling data, possibly
at a location other than that of the record files;
o Coordinating with ORC on questions of relevance and
confidentiality of documents submitted for inclusion in the
record files;
o Maintaining the confidential portion of the record files, if
necessary; -
o Maintaining the Regional compendium of guidance documents
and technical references;
o Coordinating with States and Federal agencies on record
files compiled by them; and
o Notifying appropriate personnel of the timing for review of
State and Federal record files.
Appendix D contains a model position description for an
Administrative Record Coordinator.
6
-------
#9833. 3A
The Record Coordinator must work closely with RPMS, OSCs,
enforcement staff, records management staff, Regional counsel,
community relations staff, and the Department of Justice (DOJ)
(for cases in litigation).
In the event that procedures associated with the compilation
and maintenance of the record are drawn into question in
litigation, the Record Coordinator may be called upon to prepare
an affidavit or testify about those procedures. Therefore, the
Record Coordinator should be familiar with the procedures
associated with the record, and be qualified to fulfill the
responsibilities outlined above.
B. Multiple Response Actions
Cleanups conducted under CERCLA are often broken up into
distinct decision points within a total site response action.
For remedial actions, these separate decision points are called
“operable units.” The response may be an action that fully
addresses an operable unit, an “interim action,” or a removal
action taken before, during or after remedial actions.
In general, a separate administrative record forms the basis
for each of these distinct actions. Every Record of Decision
(ROD) or Action Memorandum must be supported by an administrative
record. Information relevant to more than one response decision,
such as a site inspection report or a preliminary assessment
report may be placed in the record file for an initial response
action and incorporated by reference in the indexes of subsequent
record files for that site.
C. Compilation
The administrative record file should be compiled
contemporaneously with the generation or receipt of pertinent
information regarding a response selection. All documents for
which there is no question as to the relevance and non-privileged
nature of the information should be placed in the record file,
entered into the index, and made available to the public as soon
as possible after generation or receipt of the documents. For
example, the remedial investigation/feasibility study (RI/FS)
workplan, summaries of quality assured data, the RI/P’S released
for public comment, the proposed plan, and any public comments
received on the RI/FS and proposed plan should be placed in the
record file as soon as they are generated or received.
When there are questions as to whether particular documents
sho ild be included in the record file, such documents can be
segregated and reviewed at regular intervals (e.g., every 3-4
months). For example, draft documents or documents subject to
claims of privilege may be set aside for review by CRC and
appropriate staff. At critical times, such as prior to the
7
-------
#9833. 3A
public comment period, the issues regarding these documents
should be completely resolved and the documents included in the
record file if appropriate.
The record file may be updated while it is available for
public insp ct.ion. The additional documents should be placed in
the record file and entered in the index. It is not necessary to
hold a public comment period for each update. Any updates to the
record file should be made to all copies of the record file to
maintain consistency.
All documentation of the selection of the response action
should be in the record file when a decision document (i.e., ROD
or Action memorandum) is signed. Documents relevant to the
response selection but generated or received after the decision
document is signed should be placed in a post-document decision
file and may be added to the administrative record file in
certain circumstances (see section III.N.).
D. Index
Each administrative record file must be indexed. The index
plays a key role in enabling both agency staff and members of the
public to help locate and retrieve documents included in the
record file. In addition, the index can be used for public
information purposes, identifying documents located elsewhere,
e.g., included in the compendium of guidance documents (see
Appendix E). The index also provides a concise overview of the
history of the response action at the site.
The index also provides the Agency with a degree of control
over documents located at or near the site. The creation of an
index will prevent persons from altering the record simply by
physically adding or removing documents from the file.
The index should include the following information for each
document:
o Document Number
o Document Title - one or two line identification. Identify
the actual document, not a transmittal memo or other less
relevant document. Include sufficient information so the
document cannot be confused with another (e.g., the title
“report may be insufficient).
o Author - Name and affiliation
o Recipient — Name and affiliation
o Document Date - date the document was finalized (or made
available if never finalized), not the transmittal date or
the receipt date. -
B
-------
#9833 . 3A
o Document Location
The index can be organized either by subject or in
chronologic ,l order. Appendix C Contains a model index organize.
by subject. C6inputer databases have been helpful in generating
and updating the index.
The index should be updated when the record file is updated.
Such updates should coincide with the periodic updating of the
record file and review of material for which there cpiestions
about relevance or privilege (see section II.C.). The index
should be considered a “draft” index until the decision document
is signed, at which time the index for the record file should be
up—to—date.
E. Location
El. General
Section ].].3(k)(l) of CERCLA requires that the administrative
record be available to the public “at or near the facility at
issue.” Duplicates of the record file may be kept at any other
location.
A copy of the record file should be available for public
inspection at the central Regional location. This copy of the
record file should be maintained in a docket room and available
for public inspection at reasonable times (e.g., 9—4, Monday—
Friday). A copy of these files, with some exceptions described
below, must be located at or near the site, as required by
statute. In the case of an emergency removal, however, the
record file need be available for public inspection only at the
central location (see section II.F.3.).
The record file located at or near the site should be placed
in one of the information repositories which may already exist
for community relations purposes. These are typically located in
a library, town hail, or other publicly accessible place. If
there is no existing information repository, or if the repository
does not have sufficient space for the record file, any other
publicly accessible place may be chosen to house the record file.
The Community Relations Coordinator (CRC) should be consulted on
the location of the information repository and record file.
The record file should be transmitted to the local
repository in coordination with the CRC. The CRC should make the
ini tial contact to establish the local repository and request
housing for the record file. The Record Coordinator should make
arrangements for delivering the record file to the local
repository.
9
-------
#9833. 3A
The record file should include an introductory cover letter
addressed to the librarian or repository manager (see Appendix
F). In addition, a transmittal acknowledgement form should be
included to ensure receipt of the record file (see Appendix G).
Finally, a .adm .inistrative record fact sheet should accompany the
record to answer questions from the public (see Appendix H).
Updates to the record file should be handled in a similar fashion
(see section II.C.).
If feasible, a master copy of the record file should be kept
at the Regional office or the central office of the lead agency.
The master copy of the record file should not be accessible to
the public in order to preserve the integrity of the record file.
The master copy of the record file may be maintained in microform
to conserve storage space (see section 11.3.). If not feasible,
the Region will need to establish an effective security system
for the record file.
E.2. Special Documents
Certain documents which are included in the record file do
not have to be maintained at or near the site or, in some cases,
at the central Regional location, because of the nature of the
documents and the burden associated with maintaining such
documents in multiple locations. Such documents must, however,
be incorporated in the record file by reference (i.e., in the
index but not physically in the record file), arid the index must
indicate where the documents are publicly accessible.
Validated Sartrnling Data
Validated sampling data does not have to be located in the
central Regional location or at or near the site. The sampling
data may be left in its original storage location (e.g.,
Environmental Services Division (ESD) or contract laboratory).
Data summary sheets, however, must be located in the file. The
index must list the data summary sheets, reference the underlying
validated sampling data, and indicate where that underlying data
can be found.
Chain of Custody Forms
Chain of custody forms do not have to be located in the
central Regional location or at or near the site. As with
validated sampling data, chain of custody forms may be left in
the original storage location. The index must reference the
chain of custody forms and indicate their location.
Privileged Documents
When a privileged document is included in the record, it
should be kept in a confidential portion of the record file. The
confidential file should be kept in a locked cabinet at the
10
-------
#9833. 3A
central Regional location. it should not be located at or near
the site. The index should identify the title and location of
the privileged document, and describe the basis for the asserted
privilege. A short (non-privileged) description of the
informatjo in the privileged document should be inserted in th
portion of the record file available to the public and included
in the index. See also section III.H.
Guidance and Policy Documents
Guidance and policy documents may be kept in a compendjuj
located in the Regional office to eliminate the need for
reproducing copies of the same frequently used documents for each
site record file. The documents included in such a Compendium
need not be physically included in the record file. The index
must indicate which documents in the record file are located in
the guidance compendium and specify the location of the guidance
compendium. The index should reference the specific documents in
the guidance compendium which were considered or relied on for
the particular response action. See also section iii.i. and
Appendix E.
Technical Literature
Publicly available technical literature not generated for
the site at issue (e.g., an engineering textbook), does not have
to be located in the central Regional location or at or near the
site. The document must be clearly referenced in the index.
However, technical literature not publicly available must be
physically included in the record file at the central location
and at or near the site. See also section iii.j.
F. Public Availability
F.l. General
Section 113(k) of CERCLA specifies that the administrative
record “shall be available to the public.” in satisfying this
provision, the Agency must comply with all relevant public
participation procedures outlined in § ll3(k) and 117 of CERCL ;
the proposed NCP (see Appendices L and M) contains additional
guidance with respect to public availability (see also “Community
Relations in Superfund: A Handbook,” October 1988 - OSWER
Directive No. 9230.O-3A; “Community Relations During Enforcement
Activities,” November 3, 1988 — OSWER Directive No. 9836.0—lA).
The availability of the record will vary depending upon the
nature of the response action. Different procedures are outlined
below for remedial and removal response actions.
In all cases, the Agency should publish a notice of
availability of the record file when the record file is first
made available for public inspection in the vicinity of the site
11
-------
#9833 . 3A
at issue. The notice should explain the purpose of the record
file, its location and availability, and how the public may
participate in its development.
The notice should be published in a major local newspaper of
general ci ul tion and distributed to persons on the community
relations mailing list. This notice should also be sent to all
known PRPs if they are not already included on the community
relations mailing list. Publication of the notice should be
coordinated with the Community Relations staff. A copy of the
notice of availability should be included in the record file.
Appendix I contains a model notice of availability.
Such a notice may be combined with other notices for the
same site, such as a notice of availability of the community
relations information repository, if they occur at the same time.
Where desired, additional notice can be made in the Federal
Register . In addition to the required newspaper notice, the
public can be informed of the availability of the record file
through existing Agency mechanisms, e.g., general and special
notice letters, §104(e) information requests, and the community
relations mailing list.
F.2. Remedial Actions
The administrative record file for a remedial action must be
available for public inspection when the remedial investigation
begins. For example, when the remedial investigation/feasibility
study (RI/FS) work plan is approved, the Agency must place
documents relevant to the selection of the remedy generated up to
that point in the record file. Documents generally available at
that time include the preliminary assessment (PA), the site
investigation (SI), the RI workplan, inspection reports, sampling
data, and the Community Relations Plan (CRP). The Agency must
continue to add documents to the record file periodically after
they are generated or received during the RI/FS process.
The record file must be publicly available both at a central
Regional location and at or near the site at issue (see section
II.E.). As mentioned above, a notice of the availability of the
record file should be published in a major local newspaper when
the record file is first made available for public inspection.
In addition, the notice of availability should be sent to persons
on the community relations mailing list.
With the completion of the RI/FS, the lead agency should
undertake the following public participation procedures:
o • Prepare a Proposed Plan which briefly analyzes the remedial
alternatives studied in the RI/FS and proposes a preferred
remedial action alternative;
12
-------
#9833 .3A
o Make the RI/FS report and Proposed Plan available at a
central Regional location and at or near the site;
o Publish in a newspaper a notice of availability and brief
analysis of the RI/FS report and Proposed Plan;
o Provide a formal cont inent period of not less than 30 calendar
days for submission of comments on the Proposed Plan; (Note:
the current NCP requires a public continent period of not less
than 21 days. The Agency has proposed in the revised NC? a
public comment period of not less than 30 days.)
o Provide the opportunity for public meeting(s) in the
affected area during the public comment period regarding the
RI/FS and Proposed Plan;
o Keep a transcript of the public meeting(s) on the RI/FS and
Proposed Plan held during the comment period and make such
transcript available to the public by including a copy in
the record file;
o Prepare a discussion (to accompany or be part of the
decision document) of any significant changes to the
Proposed Plan which occurred after the Proposed Plan was
made available for public comment which are reflected in the
ROD;
o Prepare a response to each of the significant comments
submitted during the public comment period to accompany the
ROD (see section III.D.); and
o Publish in a newspaper a notice of the availability of the
ROD and make the ROD available to the public before
commencement of any remedial action as required under
§117(b) of CERCLA.
The Agency may hold additional public comment periods after
signing the ROD. Comments received after signing the ROD should
be placed in a post-decision document file and may be added to
the record file in certain situations (see section III.N.).
F.3. Removal. Actions
Section 113(k) (2) (A) of CERCLA requires that the Agency
establish procedures for the appropriate participation of
interested persons in the development of the administrative
record for the selection of a removal action. “Appropriate”
paçticipation depends on the nature of the removal, as Outlined
below.
13
-------
#9833. 3A
Non-Time—Critical Removal Actions
A non-time—critical removal action is a removal action for
which, based on the site evaluation, the Agency determines that a
planning period of at least six months exists before on—site
removal ac€1\rjtjes must be initiated.
The administrative record file for a non-time—critical
removal action must be made available for public inspection when
the engineering evaluation/cost analysis (EE/CA) is made
available for public continent. The record file must be available
both at a central Regional location and at or near the site at
issue (see section II.E.). A notice of the availability of the
record file must be published in a major local newspaper and a
copy of the notice included in the record file.
A public comment period on the EE/CA of not less than 30
days must be held so that interested persons may submit continents
on the response selection for inclusion in the record file. A
notice of the public continent period may be combined with the
notice of availability of the record file if they occur at the
same time. The Agency must respond to all significant continents
received during the public continent period and place the comments
and the responses to them in the record file (see section
III.D.)
Comments generated or received after the decision document
is signed related to selection of the removal action should be
kept in a post-decision document file. They may be added to the
record file in certain situations (see section III.N.).
Time—critical Removal Actions
A time-critical removal action is a removal action for
which, based on the site evaluation, the Agency determines that a
period of less than six months exists before on-site removal
activities must be initiated. This category includes emergency
removal actions which are described in greater detail below.
The administrative record file for these actions must be
available for public inspection no later than 60 days after the
initiation of on—site removal, activity. If feasible, the record
file should be made available earlier. The record file must be
available both at a central Regional location and at or near the
site at issue.
If, however, on-site cleanup activity is initiated within
hours of the verification of a release or threat of a release and
on-site cleanup activities cease within 30 days (emergency
actions), the record file may be made available only at a central
Regional location and need not be made available at or near the
site.
14
-------
#9833 .3A
For all time-critical removals, a notice of the availability
of the record file must be published in a major local newspaper
and a copy of the notice included in the record file.
A public comment period of not less than 30 days should be
held in app op ate situations. In general, a public comment
period will be considered appropriate if cleanup activity has not
been completed at the time the record file is made available to
the public and if public comments might have an impact on future
action at the site. If a public comment period is considered
appropriate, it should begin at the time the record file is made
available for public inspection. The notice for the public
comment period may be Combined with the notice of availability of
the record file if they occur at the same time. The Agency must
respond to all significant comments received during the public
comment period and place the comments and the responses to them
in the record file (see section III.D.).
Whether or not the Agency holds a public comment period,
comments received by the Agency related to the selection of the
removal action must be placed in the record file. For
information, including comments, generated or received after the
decision document is signed — see section III.N.
C. Maintaining the Record
Document room procedures should be established to ensure
orderly public access to the record files. In establishing
public access procedures, the security and integrity of the
record files must be maintained at all times.
The Agency prefers that each Regional Office have a readin
area where visitors are able to review the record files. The
record file must be available during reasonable hours (e.g., 9-4,
Monday-Friday). The public reading area should include, wherever
feasible:
o Administrative record files
o Guidance Compendium (see section 111.1.)
o Access to a copier
o Sign-in book
Controlled access to the files is accomplished by use of a
visitor sign-in book. Sign-in books help minimize instances in
which documents are lost or damaged. It also provides
do umentation of the Agency’s efforts to provide public access to
the record files. Pertinent information recorded in the book
should include:
o Date of visit
15
-------
#9833.3A
o Name
o Affiliation
o Address
o Phone number
o Site documents viewed
o Cost of copied materials (if applicable)
Since documents in the record file should be complete,
properly organized and legible, the integrity of the record file
must be maintained. If possible, storage and reading areas
should be supervised to maintain proper security. Documents
should not leave the document room or be left unattended. To the
extent feasible, the Record Coordinator should check the order of
the documents after being viewed by the public to be certain all
documents have been returned intact. The documents in the record
file should be kept secure, either in a locked room or in locked
cabinets.
The record file located at or near the site should be
handled with similar care. If possible, the record file should
be treated as a non-circulating reference; it should not leave
the local repository except under supervision. The phone number
of a record file contact should be provided to record file users
and to the manager of the local repository so that problems can
be identified and cured. Such information can be included in an
informational fact sheet accompanying the record file (see
Appendix H). In addition, the Record Coordinator should plan
reviews of the local record files on a systematic basis.
Where the site is a fund-lead or PRP-lead, EPA should retain
a master copy of the record file at a central Regional location.
Where a State is the lead agency at a site, EPA should assure
that the State maintains a master copy of the record file. The
record files are permanent records that must be retained.
As to the local reposit6ry, the statute and proposed
regulations are silent concerning the duration of public
availability of the record file. The Agency’s primary concern is
public participation in selection of the response action.
Following initiation of the response action, public interest in
background information other than the Record of Decision, RI/FS
or administrative record file may wane. In any event, the
statutory provisions for judicial review and deadlines for filing
cost recovery actions provide useful references for keeping the
record file publicly available. See § ll3(g) and (h) of CERCL .
16
-------
#9833 .3A
Where there is cost recovery litigation or such litigation
is possible, the record file should be available at least until
the completion of pending litigation concerning the site.
The record file continues to serve as a historical record
the respon seiection, even after the statute of limitations fo:
cost recovery action has passed. Where there is considerable
public interest, the local repository may wish to keep the record
file available for public viewing.
H. Confidential File
In certain situations, documents in the record file may be
subject to an applicable privilege (see section III.G.).
Whenever feasible, information relevant to the response selection
which is contained in a privileged document should be extracted
in a releasable manner and included in the publicly accessible
portion of the record file. The privileged document should be
included in a confidential portion of the record file.
The Administrative Record Coordinator should maintain a
confidential portion of the record file for such privileged
documents. These documents should be listed in the index to the
entire record file and identified as “privileged.” The index
should identify the title and location of the privileged
document, and describe the basis for the asserted privilege. A
short (non-privileged) description of the document and its
privileged nature should, where possible, be placed in the files
available to the public.
The confidential portion of the record file should be store
in locked files at a central Regional location and should not be
located at or near the site. The confidential portion of the
record file should be separate from the publicly available record
file to protect against inadvertent disclosure. Each privileged
document should be stamped “confidential” at the bottom of each
page of the document. Where the material is not a written
document (such as a computer disk or cassette tape) the jacket
should be stamped “confidential.” A complete list of all
materials contained in the confidential portion of the record
file should be maintained by the Record Coordinator. The
coordinator should also maintain a log which will include the
time, date, document name, and identity of persons checking out
and returning materials to the confidential file.
A routine access list should be prepared for each record
file or, in the future, as soon as a new record file is
established. This routine access list must be approved by the
Waste Management Division Director or the Environmental Services
Division Director, and ORC. Once approval is given, persons on
the list will be able to access the confidential files through
the Record Coordinator. No one should have access to the
17
-------
#9833. 3A
confidential files without the approval of the persons listed
above.
This policy and procedure for privileged materials does not
supersede any policy and procedures established by the Agency
under the e dorn of Information Act (FOIA), 5 U.S.C., §552, arid
Agency regulations implementing FOIA at 40 C.F.R. Part 2. If the
requester is in close proximity to the record file, the Agency
may respond to FOIA requests for the administrative record by
telling a requester the location arid availability of the record
file. Decisions regarding disclosures of materials under FOIA
should be coordinated among the various agency officials with
access to such materials.
I. Copying
Section 117(d) of CERCLA requires that each document
developed, received, published, or made available to the public
under §117 be made available for public inspection and copying at
or near the site. Under §113(k) (2) (B) of CERCLA, these documents
must also be included in the administrative record. Under these
provisions of CERCLA, the lead agency must ensure that documents
in the record files are available for copying but does not bear
responsibility for copying the documents themselves. Therefore,
it is preferable that the record file should be located in a
facility which contains a copying machine (e.g., a public
library).
Alternatively, the Agency may arrange for copying on behalf
of a requester. The Agency may ask that requesters arrange for
copying by contractors or commercial copy centers who then bill
the requester directly.
The Agency should follow the FOIA regulations at 40 C.F.R.
Part 2 in determining the appropriate charge for copying.
Generally, copying fees should be waived for other Federal
Agencies, EPA contractors or grantees, and members of Congress.
The Agency should charge $.20 a page for paper copies as provided
in 40 C.F.R. Part 2. Reproduction of photographs, microfilms or
magnetic tapes, and computer printouts should be charged at the
actual direct cost to the Agency.
J. Micrographics
The administrative record file may be maintained in
microform such as microfilm or microfiche. Use of micrographics
can significantly reduce the space required to store
administrative record files. In addition, micrograpics can
si p1ify the tasks of reproducing copies of the record and
transmission of the record files to the local repositories. Any
use of micrographics should be conducted in an orderly manner
consistent with records management procedures. If using
micrographics tO maintain the record files, readers will need to
18
-------
#9833. 3A
be available at the Regional office and with the record file
located “at or near the site” to ensure public access to the
record files.
Microform copies of origina’ documents are admissible in
court if c eate in an organized fashion. The Business Records
as Evidence Act (28 U.s.c. §1732) specifies that copies of
records, which are made “in the regular course of business” and
Copied by any process which accurately reproduces the original,
are “as admissible in evidence as the original itself.” See also
Federal Rules of Evidence 1003. Thus, if the lead agency can
demonstrate that CERCLk records and microform copies of those
records are produced in the regular course of business, they
would be admissible in court.
The Office of Information Resources Management (OIRM) has
granted approval for the use of micrographjcs in establishing
administrative records (see Appendix J). Any use of
micrographics must still comply with the remaining provisions of
Chapter 6 of the EPA Records Management Manual (7/13/84).
K. Certification
The Agency must certify the completeness of the
administrative record when the record is filed in court.
Appendix K contains a model court certification
Such certification should be signed by the Regional
Administrator’s designee after Consultation with ORC and DOJ.
Any certification of the record should be made by program staff
and not legal staff.
Although not required, the Region may choose to have the
Administrative Record Coordinator certify that the record was
Compiled and maintained in accordance with applicable Agency
regulations and guidance. Such certification would attest that
the record was compiled in accordance with current Agency
procedures and would not address the completeness of the record
file.
19
-------
#9833. 3A
III. CONTENTS OF THE ADMINISTRATIVE RECORD
A. Remedial Actions
The a jnjstratjve record for selection of a remedial action
should consistThf:
o documents which the Agency considered or relied on to select
the remedial action; and
o documents which demonstrate the public’s opportunity to
participate in and comment on the selection of the remedial
action.
As stated earlier, the administrative record file for the
selection of a remedial action nust be made available for public
inspection at the commencement of the remedial investigation
phase. For example, when the RI/FS work plan is approved, the
Agency must place documents on selection of remedy generated up
to that point in the record file. Documents should continue to
be added to the record file until a decision document is signed.
Documents containing new information relevant to the response
selection but generated or received after the decision document
is signed should be kept in a post-decision document file and may
be added to the record file in certain situations (see section
III.N.)
Typically, but not in all cases, the record for a remedial
response action will consist of the following types of documents.
The list below is neither a statement of requirements for each
record nor is it exclusive. The record file should include any
other documents not listed below which meet the general criteria
described in the first paragraph of this section.
Factual Information/Data
o Preliminary Assessment (PA) report
o Site Investigation (SI) report
o Approved Remedial Investigation/Feasibility Study (RI/FS)
workplan
o Amendments to final workplan
o Sampling and Analysis Plan (SAP): consisting of a quality
assurance project plan (QAPP) and a field sampling plan
(FSP)
o Sampling data: validated data during the RI/FS, or any data
collected for previous actions such as RCRA or removal
actions which are considered or relied on in selecting the
20
-------
#9833. 3A
remedial action. Unvalidated data should be included only
if relied on by the Agency in the absence of validated data.
o Chain of custody forms
o Inspettio reports
o Fact sheet or summary information regarding remedial action
alternatives generated when special notice letters are
issued to PRPs at an early stage of the RI/FS (see “Interim
Guidance on Notice Letters, Negotiations, and Information
Exchange,” October 19, 1987 - OSWER Directive No. 9834.1)
o Data summary sheets
o Technical studies performed for the site (e.g., a ground
water study)
o Endangerment assessment/risk assessment and underlying
documentation (see section III.C.)
o RI/FS (as available for public comment and as final, if
different)
o Data submitted by the public, including PRPs
Policy and Guidance
o Memoranda on site-specific or issue—specific policy
decisions. Examples include memoranda on off—site disposal
availability, special coordination needs (e.g., dioxin), an
applicable, or relevant and appropriate requirements (ARARs
(to the extent not in the RI/FS), cost effectiveness, and
utilization of permanent solutions and alternative treatment
technologies.
o Guidance documents (see section 111.1.)
o Technical literature (see section III.J)
Public Participation
o Community Relations Plan
o Proposed Plan
o Public notices: any public notices concerning response
action selection such as notices of availability of
information, notices of meetings, and notices of
opportunities to comment
o Documentation of public meetings: information generated or
received during meetings with the public (including PRPs)
21
-------
#9833. 3A
and memoranda or notes summarizing significant information
submitted during such meetings
o Public comments: complete text of all written comments
submit ted_.(see also section III.D.)
o Transcripts of public meetings: includes especially
meetings held during the public comment period on RI/Fs,
Proposed Plan, and any waiver of ARARs under § 121(d) (4) of
CERCLA
o Responses to significant Comments: responses to significant
comments received froip the public concerning the selection
of a remedial action
o Responses to State and other Federal agency cont inents
Enforcement Documents (included if the document contains
information relevant to the response selection or public
participation in the response selection and does not pertain
exclusively to liability)
o Administrative orders
o Consent decrees
o Affidavits containing relevant factual information not
contained elsewhere in the record
o Notice letters to PRPs
o Responses to Notice letters
o §104(e) information request letters and subpoenas
o Responses to §104(e) information request letters and
subpoenas
Other Information
o Index (see section lID.)
o Documentation of State involvement: documentation of the
request and response on ARARs, §121(f) (1) (G) notices and
responses, a statement of the State’s position on the
Proposed Plan (concurrence, nonconcurrence, or no comment at
the time of publication), opportunity to concur in the
selected remedy and be a party to a settlement (see section
IV.A.)
o health assessments, health studies, and public health
advisories issued by the Agency for Toxic Substances and
Disease Registry (ATSDR) (see section IV.C.)
22
-------
#9833. 3A
O Natural Resource Trustee findings of fact and final repo s
and natural resource damage assessments (see section IV.D.)
Decision Documents
o Record of Decision (ROD): final remedial action decision
document (including responsiveness summary)
o Explanations of significant differences (under §117(c)) and
underlying information
o Amended ROD and underlying information
The administrative record should both track the history of
the site and be understandable to the reader. Appendix B
provides a model file structure for organizing the record.
Appendix c contains a model index.
B. Removal Actions
The administrative record for selection of a removal action
should consist of:
o documents which the Agency considered or relied on to select
the removal action; and
o documents which demonstrate the public’s opportunity to
participate in and coinirtent on the selection of the removal
action, when appropriate.
For a time-critical removal action, the record file should
be available for public inspection as early as possible and must
be available no later than 60 days after initiation of on-site
removal activity. Documents prepared prior to the final decision
document must be placed in the record file and made available to
the public.
For a non-time-critical removal action, the record file must
be made available for public inspection when the EE/CA is
available for public inspection. Documents should continue to be
added to the record file from the time the EE/CA is available
until a decision document (i.e. Action memorandum) is signed.
For all removal actions, documents containing new
information generated after the selection of a response action,
other than comments made during the public comment period and
responses to those comments, should be kept in a post—decision
document file and may be added to the record file in certain
situations (see section III.N).
Typically, but not in all cases, the record for a removal
response action will consist of the following types of documents.
23
-------
#9833. 3A
The list below is neither a statement of requirements for each
record nor is it exclusive. The record file should include any
other documents not listed below which meet the general criteria
described in the first paragraph of this section.
Factual In .thrm tjon/Data
o Preliminary Assessment (PA) report
o Site evaluation (SI) report
o EE/CA (for a non-time—critical removal action)
o sampling plan
o Sampling data: validated data obtained in support of the
removal action, or any data collected for previous actions
such as RCRA or other response actions which are considered
or relied on in selecting the removal action. Unvalidated
data should be included only if relied on by the Agency in
the absence of validated data.
o Chain of custody forms
o Inspection reports
o Technical studies performed for the site (e.g., a ground
water study)
o Endangerment assessment/risk assessment and underlying
documentation
o Data submitted by the public, including PRPs
Policy and Guidance
o Memoranda on site—specific or issue—specific policy
decisions. Examples include memoranda on off—site disposal
availability, compliance with other environmental statutes,
special coordination needs, e.g., dioxin.
o Guidance documents (see section 111.1.)
o Technical literature (see section III.J.)
Public Participation
o Community Relations Plan
o Public notices: any public notices concerning response
action selection such as notices of availability of
information, notices of meetings, and notices of
opportunities to comment
24
-------
#9833. 3A
o Documentation of public meetings: information generated or
submitted during meetings with the public (including PRPs)
and memoranda or notes summarizing significant information
Submitted during such meetings
o Public comments: complete text of all written comments
submitted (see also section III.D..)
o Responses to significant comments: responses to significant
comments received from the public concerning the selection
of a removal action
o Responses to State and other Federal agency comments
Enforcement Documents (included if the document contains
information relevant to the response selection or public
participation in the response selection and does not pertain
exclusively to liability)
o Administrative orders
o Consent decrees
o Affidavits containing relevant factual information not
contained elsewhere in the record
o Notice Letters to PRPs
o Responses to Notice Letters
o §104(e) information request letters and subpoenas
Responses to §104(e) information request letters and
subpoenas
Other Information
o Index (see section III.D.)
o Documentation of State involvement (see section IV.A.)
o ATSDR health assessments, health studies, and public health
advisories (see section IV.C.)
o Natural Resource Trustee findings of fact and final reports
and natural resource damage assessments (see section IV.D.)
Decision Documents
o EE/CA Approval Memorandum
o Action Memorandum
25
-------
#9833. 3A
o Amended Action Memorandum
The administrative record should both track the history of
the site and b understandab1e to the reader. Appendix B
provides a model file structure for organizing the record.
Appendix C contains a model index.
C. Imminent and Substantial Endangerment
Under §106 of CERCLA, the Agency may find the existence of
an imminent and substantial endangerment to the public health or
welfare of the environment because of an actual or threatened
release of a hazardous substance.
The determination of the existence of an imminent and
substantial endangerment is an important component of the
selection of the response action. Therefore, all documents
considered or relied on in making that determination, including
any endangerment assessment and its underlying documentation,
must be included in the administrative record file. If the
determination that there is an imminent and substantial
endangerment is properly documented in the record file, judicial
review of that determination in an action under §106 of CERCL
will also be limited to the administrative record.
D. Public Comments
In general, the administrative record should document any
opportunity for public involvement in the selection of a response
action. All documents related to the opportunity (e.g., notices
and fact sheets), and relevant written comments received from the
public should be included in the record file to establish a
complete record for purposes of judicial review.
The record file should contain information brought to the
Agency’s attention by the public. Reports, data and other
information generated by outside parties and submitted to the
Agency should be included in the record file. Public requests
for information (e.g., Freedom of Information Act (FOIA) requests
for copies of reports), ‘need not be included in the record file.
The Agency should request that substantive oral comments
(either in person or over the phone) be put in writing by the
commenter for inclusion in the record file. The commenter should
be advised that the obligation to reduce the comment to writing
rests with the commnenter.
The Agency may respond to comments received prior to a
public comment period in various ways, depending on the nature
and relevance of a particular comment. The Agency’s
consideration of such a comment may be-.in the form of a written
response, or reflected by documented actions taken after
26
-------
#9833.3A
receiving the comment, or even by changes in subsequent versions
of documents. If the Agency prepares a written response to a
comment, the response should be included in the record file.
The Ag ncy may notify cominenters that continents submitted
prior to a fo± àl public comment period must be resubmitted or
specifically identified during the public comment period in order
to receive formal response by the Agency. Alternatively, the
Agency may notify a coinmenter that the Agency will respond to the
comment in a responsiveness summary prepared at a later date.
The Agency, however, has no duty to respond to any comments
received before the formal public comment period, or to respond
to comments during the public comment period until the close of
the public comment period. The Agency may, in its discretion,
respond in writing to comments submitted outside of a formal
public comment period.
Comments received during the formal public comment period
must be addressed in the responsiveness summary (included with
the ROD in remedial response actions). The responses may be
combined by subject or other category in the record file.
Continents should be included in the record file in their original
form wherever feasible.
Comments which are received after the formal comment period
closes and before the decision document is signed should be
included in the record file but labeled “late comment.” Such
comments should be handled as post-decision information (see
section III.N.).
Comments received after the decision document is signed
should be placed in a post-decision document file. They may be
added to the record file in limited circumstances (see section
III.N.)
E. Enforcement Actions
The same procedures should be used for establishing an
administrative record whether or not a response action is
selected in the context of an enforcement action. The following
additional information, however, may assist the establishment of
administrative records for selection of CERCLA response actions
where there is enforcement activity.
E. 1. Negotiation Documents
During negotiations with the Agency, a potentially
responsible party (PRP) may produce documents and claim that they
constitute confidential business information (CBI) or offers of
settlement subject to Rule 408 of the Federal Rules of Evidence.
Generally, those documents are not part of the
administrative record for response selection unless they are
27
-------
#9833.3A
submitted by PRPs for consideration in selecting a response
action and are considered or relied on in selecting the response
action. A privileged document which was considered or relied on
in selecting the response action should be placed in the
confidential portion of the record file. Such a document should
be summar±zed-and the summary included in the publicly accessible
portion of the record file (see section II.H.). If the
information cannot be summarized in a disciosable manner, the
information should be placed in the confidential portion of the
record file only and listed in the index to the file.
E.2. PRP-lead RI/FS
Where a PRP is conducting the RI/FS, the PRP must submit all
technical information on selection of the remedial action
generated during the RI/FS to the Agency. Technical information
includes sampling data, workplans, reports, and memoranda. The
Agency, and not the PR?, will establish the administrative record
(see “Interim Guidance on Potentially Responsible Party
Participation in Remedial Investigations and Feasibility
Studies,” May 16, 1988 - OSWER Directive No. 9835.la).
PRPs may be delegated responsibility for some record file
maintenance activities, such as housing the files at or near the
site. PRPs cannot, however, be responsible for decisions on what
documents comprise the record, because of, among other things,
the potential for a conflict of interest.
E.3. Administrative Orders and Consent Decrees
Final administrative orders and consent decrees issued prior
to selection of the response action (e.g. ordering a PR? to
conduct the RI/FS), should be included in the administrative
record file. Administrative orders or consent decrees issued
after the signing of the ROD or the action memorandum should not
be included in the record file, unless the consent decree or
administrative order meets the criteria for the inclusion of
post-decision documents in the record file (see section III.N.).
In such cases, the documents may be added to the record file in
accordance with procedures for post-decision documents. Drafts
of administrative orders and consent decrees should not be
included in the record file.
Note that administrative orders must also be supported by an
administrative record. These administrative records are not the
same as administrative records for the selection of a response
action as described in this guidance. Some of the documents,
however, which form the basis for a response decision may also
form the basis for an order or decree. For example, some of the
same documents which were considered or relied on to make the
response decision embodied in a ROD will likely form the basis of
a de minirnis settlement embodied in a consent order. In such a
case, the record file which forms the basis for the consent order
28
-------
#9833.3k
can reference the documents contained in the record file for the
response decision.
F. Excluded Documents
Cert In’ ocuments should not be included in the
administrative record because they are irrelevant to the
selection of the response action. Documents should be excluded
from the administrative record if the Agency did not consider or
rely on them in selecting the response action.
Material beyond the scope of the record should be kept in
separate files maintained at the Regional office. These files
need not be made publicly available, although many of the
documents in the files may be available to the public if
requested under FOIA.
Examples of documents that are irrelevant to the decision on
selecting a response action may include Hazard Ranking System
(HRS) scoring packages, contractor work assignments, cost
documentation (as opposed to cost effectiveness information), and
National List (NPL) deletion information. If, however, these
documents contain information that is considered or relied on in
the response action selection and that is not contained elsewhere
in the record file, then the documents should be included in the
record file.
Information regarding PRP liability is generally not
included in the record file for selection of the response action
except to the extent such information (typically substance
specific) is considered or relied on in selecting the response
action. Documents relating to PRP liability, however, should be
compiled and maintained in the Regional office so that they are
available at the time of notice to PRPs or referral of any
litigation.
G. Draft Documents and Internal Memoranda
In general, only final documents should be included in the
administrative record file. The record file should not include
preliminary documents such as drafts and internal memoranda.
Such documents are excluded from the record file because drafts
and internal memoranda are often revised or superseded by
subsequent drafts and memoranda prior to the selection of the
response action. The preliminary documents are, therefore, not
in fact considered or relied on in making the response action
decision.
Drafts (or portions of them) and internal memoranda should
be included, however, in two instances. First, if a draft
document or internal memorandum is the basis for a decision
(e.g., the draft contains factual information not included in a
final document, a final document does not exist, or did not exist
29
-------
#9833.3A
when the decision was made), the Agency should place the draft
document or internal memorandum in the record file.
Second, if a draft document or internal memorandum is
circulated ‘t - outside party who then submits comments which
the decisionmaker considers or relies on when making a response
action decision, relevant portions of the draft document or the
memorandum and the continents on that document should be included
in the record file.
Examples of internal memoranda and staff notes which should
not be included in the record file are documents that express
tentative opinions or recommendations of staff to other staff or
management, or internal documents that evaluate alternative
viewpoints.
Drafts and internal memoranda may also be subject to claims
of privilege (see section III.H.).
H. Privileged Documents
Some documents in the administrative record file may be
protected from public disclosure on the basis of an applicable
privilege. Any documents which are considered or relied on in a
response action selection, but withheld from the public portion
of the record file based on privilege, must be placed in a
confidential portion of the record file (see section II.H.).
If a document is excluded from the public portion of the
record file based on privilege, the relevant information should, -
if feasible, be extracted and included in the public record file.
This can often be accomplished by deleting or redacting the
privileged information from the document.
The privileges discussed below may be asserted by the Agency
with respect to documents that are considered or relied on in the
selection of a response action. The head of the office
responsible for developing the document in question should assert
the privilege. In all cases, the official asserting a privilege
should consult with ORC.
Public disclosure of a privileged document may result in
waiver of the privilege, although the nature and extent of the
waiver will depend on the privilege asserted and the
circumstances of the disclosure. In light of the potential for
waiver, it is important that Agency personnel not release
potentially privileged documents to the public without consulting
with ORC.
Deliberative Process
The deliberative process privilege applies to pre—
decisional, deliberative corrnunlcations that express opinions,
30
-------
#9833. 3A
advice, and recommendations of staff to other staff or
management. The privilege functions to encourage the honest and
free expression of opinion, suggestions and ideas among those
formulating policy for government agencies (see “Guidance for
Assertion. D liberative Process Privilege,” 10/3/84).
In general, if a document contains factual information
forming the basis for the selection of the response action, it
should be included in the record file.
Use of the deliberative process privilege should bd balanced
with the statutory mandate of including the public in the
response action selection process. The privilege should be
asserted if disclosure of the document will have an inhibiting
effect on frank and open discussion among government staff and
decisionmakers. Documents should not be withheld solely because
they would reveal flaws in the case or information embarrassing
to the government. Specific procedures exist for assertion of
the deliberative process privilege, which include consulting with
ORC.
Confidential Business Information (CBU
The Agency must withhold from the public record trade
secrets and coinlnercja l and financial information that is subject
to protection under 40 C.F.R. Part 2. However, §104(e) (7) of
CERCLA greatly restricts the assertions of confidentiality claims
by PRPs at CERCLA sites. The Agency should attempt to avoid
using CBI in making response action decisions and can do so in
most cases by using other information instead. Where the Agency
must use CBI in making its decision, 40 C.F.R. Part 2 and
§104(e) (7) of CERCLA will apply and such information should be
placed in the confidential portion of the administrative record
file.
Attorney Work Product
This exclusion applies to documents prepared in anticipation
of possible litigation. The work product privilege covers all
documents prepared by an attorney or under an attorney’s
supervision, including reports prepared by a consultant or
program employee. Litigation need not have commenced but it must
be reasonably contemplated. These documents generally relate to
enforcement or defensibility of a decision and are not considered
or relied on in.selecting a response action. These documents
should not, therefore, be in the administrative record file.
Attorney-Client Communication -
The attorney-client privilege applies to confidential
communications made in connection with securing or rendering
legal advice. The privilege is limited to communications where
there was an intention to keep the information confidential.
31
-------
# 9 833.3A
Personal Privacy
This exemption covers information about individuals in
personnel,.- edjca1, and similar files, the disclosure of Which
would constitute a clearly Unwarranted invasion of personal
privacy. The records must pertain to an individual, and not a
business, to be excluded from the public portion of the
administrative record file under this exemption. Often,
information subject to the protection under the personals privacy
privilege can be redacted from the document and the redacted
version can be placed in the public portion of the record file.
State Secrets
An agency is authorized to exclude from public scrutiny
information which, if released, would harm national security or
interfere with the government’s ability to conduct foreign
relations. This privilege could be particularly important where
the PRP is a Federal agency or a contractor for a Federal agency.
In the case of a Federal facility cleanup, an Inter-Agency
Agreement should spell out procedures for asserting this
privilege.
Confidential Informant
Statements obtained from witnesses who have been granted
confidentiality may be privileged.
Information Exempted by Other Statutes
Information specifically exempted from disclosure by a
Federal statute need not be part of the public record. The
statute in question must leave no discretion as to the
requirement that matters be withheld from the public or it must
establish particular criteria for withholding or refer to
particular types of matters to be withheld.
I. Guidance Documents
Guidance documents, or portions of guidance documents, that
are considered or relied on in selecting a response action-should
be included in the administrative record file for that response
action. Any guidance documents generated for the site for which
the record file is being compiled sh-ould be physically included
in the record file. Certain guidance documents, however, do not
have to be kept in the record file. Guidance documents not
generated for the particular site for which the record is being
compiled may be kept in a compendium of guidance documents
maintained at a central Regional location.
Each EPA Regional office should maintain a compendium of
guidance documents which are frequently used in selecting
32
-------
#9833.3A
response actions. As with an administrative record file, the
compendium of guidance documents must be available to the public,
but only at the central Regional location. The Administrative
Record Coordinator should maintain and update the compendium of
guidance documents. If a guidance document maintained in the
compendiu ris—considered or relied on when making a response
action decision, the index to the record file must list the
document and indicate its location and availability. See also
Appendix E.
If a guidance document is listed in a bibliography’to a
document included in the record file (e.g., listed in the
bibliography to the RI/FS), it need not be listed again in the
index to the record file. In this case, however, the index must
state that documents listed as bibliographic sources might not be
listed separately in the index.
If a guidance document which is not included in the guidance
compendium is considered or relied on in selecting the response
action, the document should be physically included in the record
file.
J. Technical Literature
Technical literature generated for the site at issue should
be physically included in the administrative record file for that
site, whether or not it is publicly available.
Similarly, technical literature not specifically generated
for the site at issue which is not publicly available should als
be included in the site—specific record file. Such documents
include technical journals and unpublished documents that are noL.
available through the Library of Congress or not circulated to
technical libraries.
Publicly available technical literature not generated for
the site at issue, however, need not be located at or near the
site or at a central Regional location if the documents are
referenced in the index to the record file. These documents do
not have to be physically included in the record file because
they are already available to public. Copying such documents
creates a significant burden to the Agency and copyright laws may
pose additional barriers to such copying. Examples of publicly
available technical literature include engineering manuals,
ground-water monitoring or hydrogeology textbooks, ATSDR
toxicological profiles, and articles from technical journals.
Computer models and technical databases need not be
physically included in the record file but should be referenced
in the index to the record file. Printouts or other documents
produced from the models and databases should be physically
included in the record file if such documents contain information
33
-------
#9833. 3A
which was considered or relied on in selecting the response
action.
K. Legal Sources
Copies of statutes and regulations cited in documents
included in the administrative record need not be included in the
record file if they are readily available to the public. For
example, the NCP and other regulations are easily accessible
since they are published in the Federal Register and th Code of
Federal Regulations.
Copies of the actual standards (statutes or regulations)
comprising Federal and State ARARs should be physically included
in the record file if they are not easily accessible. Also,
other Federal and State criteria, advisories, and guidance
documents pertinent to the site (i.e., what the Agency refers to
as “TBCs,” or standards “to be considered”), may not be easily
accessible. If such documents are cited in an RI/FS, appendix to
the RI/FS, EE/CA, or ROD, those advisories which are not readily
available should be included in the record file.
L. NPL Rulemaking Docket Information
Generally, information included in the National Priorities
List (NPL) rulemaking docket, such as the Hazard Ranking System
(HRS) scoring package and comments received on the listing, need
not be included in the administrative record for selection of a
response action. The NPL docket contains information relevant to
the decision to list a site, which may be irrelevant to the
decision on response action selection.
Documents in the NPL d.ocket which contain sampling data or
other factual information which was considered or relied on in
selecting a response action should be included in the record file
if the information is not available already in the record file.
Such information may include early sampling data taken by parties
other than the Agency or its contractors (e.g., a State).
M. RCRA Documents
If an action is taken under CERCL at a site with a history
of Resource Conservation and Recovery Act (RCRA) activity, much
of the information relating to those RCRA activities may be
considered or relied on in making the CERCLA response action
selection. Any relevant RCRk information, particularly
information on waste management and RCRA corrective action at the
site, should be included in the administrative record file (e.g.,
RCRA permit applications, inspection reports, RCRA Facility
Assessment (RFA), RCPA Facility Investigation (RFI), Corrective
Measures Studies (CMS), or responses to RCRA information
requests)
34
-------
#9833. 3A
Not all pre-existing RCRA information will be considered or
relied on in selecting a CERCLA response action, but information
on types of wastes, quantity of wastes, and observations of
potential threats gathered during RCRA investigations should be
included i - J1ot contajned elsewhere in the record file.
N. Post—Decision Information
In general, documents generated or received by the Agency
after signing the response action decision document (e.g,, ROD or
Action Memorandum), should not be added to the administrative
record file. Since the administrative record contains the
information which forms the basis for the response selection,
documents generated or received after selecting the response
action are not relevant to that response decision and should not
be included in the record file. In limited situations, however,
the Agency must include in the record file documents generated or
received after the decision document is signed.
In all cases, documents generated or received after signing
the decision document should be kept in a post-decision document
file. This file is not part of the administrative record file
and should be maintained at a central Regional location.
Documents kept in the post—decision document file may be added to
the record file in the situations described below:
o Where a decision document does not address or reserves a
significant aspect of a response action decision to be made
at a later date. For example, a decision document that does
not resolve the type of treatment technology. In such
cases, the Agency should continue to add documents to the
record file which form the basis for the unaddressed portior
of the decision.
o Where there is a significant change in the selected response
action. Changes that result in a significant difference to
a basic feature of the selected remedial action (e.g.,
timing, ARARs), with respect to scope, performance, or cost
may be addressed in an explanation of significant
differences. Under §117(c) of CERCLA,
“(a)fter adoption of a final remedial action plan
- (1) if any remedial action is taken, (2) if any
enforcement action under section 106 is taken, or
(3) if any settlement or consent decree under
section 106 or section 122 is entered into, and if
such action, settlement, or decree differs in any
significant respects from the final plan, the
President or the State shall publish an
explanation of the significant differences and the
reasons such changes were made.tI
35
-------
# 9 833.3A
The record file should include the explanation of
significant differences, underlying documentation for the
response action changes, any significant comments from the
public, and Agency responses to any significant Comments. A
forinaLpublic comment period is not required on an
explanatiaji of significant differences.
o Some changes will be so significant that they fundamentally
alter the very nature or basis of the overall response
action. Such changes will require an amended decision
document. The Region will decide whether a change co a
response action is considered a significant or a fundamental
change for purposes of addressing the change (the “Guidance
on Preparing Superfund Decision Documents: The Proposed
Plan and Record of Decision,” OSWER Directive No. 93553-
02) is expected to address this.
When the decision document is amended, the amended decision
document, the underlying documentation, any significant
comments from the public, and Agency responses to any
significant comments, should be included in the record file.
ROD amendments will require a formal public comment period.
o Where comments containing significant information are
generated or received after the close of the public comment
period. The Agency must consider comments submitted after
the public comment period only to the extent that the
comments contain significant information not contained
elsewhere in the record file which could not have been
submitted during the public comment period and which
substantially support the need to consider significantly
altering the response action. Documents meeting this test
should be included in the record file, along with the
Agency’s responses to the significant comments, whether or
not such information results in a change to the selected
decision. In this case, the comments, the underlying
documentation, and Agency responses to such comments, should
be included in the record file.
o Post-decision information may also be added to the record
file if the Agency holds public comment periods after the
selection of the response action. The Agency may hold
additional public comment periods or extend the time for
submission of public comment on any issue concerning
response selection. Such comn)ent should be limited to the
issues for which the Agency requested additional comment.
All significant comments submitted during such comment
periods, along with any public notices of the comment
period, transcripts of public meetings, and Agency responses
to the comments, should be placed in the record file.
36
-------
#9833. 3A
IV. INVOLVEMENT OF Om R PARTIES
A. States
A.].. State Involvement on Federa1- ad Sites
The administrative record for a Federal-lead site must
reflect the opportunity for involvement in the selection of the
response action afforded the particular State. The record for a
remedial action should include documents that reflect at least
the following State participation or the opportunity for ‘State
participation:
o Letter to State requesting identification of ARARs and the
final response from State identifying ARARs (and
certification from the State);
o Opportunity to comment or comments on a proposed finding or
decision to select a remedial action not attaining a level
or standard of control at least equivalent to a legally
applicable or relevant and appropriate standard,
requirement, criteria, or limitation (as mandated by
§121(d) (4) of CERCL ) ;
o Opportunity to comment or comments on the final draft RI/Fs,
the Proposed Plan and EPA responses to the comments;
o Significant post—decision State comments and EPA responses
to the comments (place in the post—decision document file
for possible inclusion in the record file - see section
III.N.)
The administrative record for a removal action should
reflect any State participation, especially any State comments
and EPA responses to the comments.
The record file should only include final State comments.
Any preliminary deliberations between the State and EPA relevant
to the response selection need not be part of the record file if
superseded by documentation of the State’s final position.
The governing body of an Indian tribe should be afforded the
same treatment as a State in accordance with §126 of CERCLA.
A.2. Federal Involvement in State-Lead Sites
Where a State has been officially designated the lead agency
for a CERCLA site, the State must compile the administrative
record for that site in accordance with §113(k) of CERCL . Since
EPA has ultimate responsibility for both the selection of a
response action (EPA signs the ROD) and the record on which that
response action is based, EPA must participate in compiling and
maintaining the record. In such cases, EPA must assure that the
37
-------
#9833. 3A
record file forms a complete basis for the selection of the
response action.
The State as lead agency must maintain the record file at a
State office (e.g., the State’s central environmental agency
office) and ator near the site. At a minimum, the State as lead
agency also must transmit a copy of the index, RI/FS workplan,
the RI/FS released for public comment, the Proposed Plan, and any
public comments received on the RI/FS and the Proposed Plan to
the appropriate EPA Regional office. These documents should be
transmitted to the Agency as they are generated or received.
Transmittal of the index will not suff ice. In addition, other
documents may be requested by EPA on a case—by-case basis.
The Superfund Memorandum of Agreement (SMOA), or Cooperative
Agreement (CA), must address the administrative record
requirements. The following language should be included in the
SMOA or CA where the State has been officially designated the
lead agency for a CERCLA site:
“The State must compile and maintain the
administrative record upon which the selection of the
[ remedial, removal) action is based. The compilation
and maintenance of the record must be, to the extent
feasible, in accordance with EPA guidance on the
administrative record. The administrative record must
be located at the State [ environmental agency] office,
and at or near the site. In addition, the State must
submit copies of the index, the RI/FS workplan, the
RI/FS released for public comment, the Proposed Plan,
and any public comments received on the RI/FS and
Proposed Plan to the EPA Regional office, as they are
added to the administrative record file. In addition,
other documents may be requested by EPA on a case-by—
case basis. The State shall comply with §113 of CERCLA
and any applicable regulations. EPA may require the
retention of other documents for cost recovery
purposes.”
The record file compiled by the State should reflect EPA’s
participation, comments, concurrence, and disagreements at the
same stages as are required for State involvement in a Federal-
lead site. The State must place in the record file any doèuments
submitted by EPA for inclusion in the record file.
B. Federal Facilities
Federal agencies have the responsibility, pursuant to
Executive Order 12580, to establish the administrative record for
Federal facilities under their jurisdiction, custody, or control
where using CERCLA authority for a response actibn. The record
file for a Federal facility must incluc e all documents considered
or relied on in selecting a response action, including documents
38
-------
#9833.3A
submitted by EPA on the selection of the response action. The
Federal agency must comply with all NCP (see Appendix M) and
CERCLA requirements in compiling and maintaining the record,
including the minimum public participation requirements in §fll3
and 117 of...ç,ERCLA.
The Federal agency must maintain the record file at or near
the site and ensure easy public access to the record file. If,
for example, a site is a Department of Defense facility, the
record file should be housed in a location which does not require
military clearance for access. The Federal agency should keep a
complete copy of the record file at a location within the Federal
agency office comparable to an EPA Regional office.
At NPL sites and any other site where EPA is involved in
selecting a response action at a Federal facility, EPA must
participate in compiling and maintaining the record. In such
cases, EPA must assure that the record file forms a complete
basis for the selection of the response action. At a minimum,
the Federal agency must transmit a copy of the index, the RI/FS
workplan, the RI/FS released for public comment, the Proposed
Plan, and any public comments received on the RI/FS and Proposed
Plan to the appropriate EPA Regional office. These documents
should be transmitted to the Agency as they are generated.
Transmittal of the index will not suffice. In addition, other
documents may be requested by EPA on a case-by—case basis.
Inter-Agency Agreements (lAGs) should spell out procedures for
compiling and maintaining the record.
C. ATSDR
Participation in the selection of a response action by the
Agency for Toxic Substance and Disease Registry (ATSDR) should be
reflected in the administrative record. The record file must
include the initial and subsequent health assessments and any
other information EPA solicits and obtains from ATSDR which EPA
considers or relies on in its selection of a response action.
Draft versions of the health assessment and other draft
documents upon which ATSDR comments should not be included in the
record file. If, however, EPA solicits comments from ATSDR on a
draft document such as a draft work plan or RI report, and
receives formal comments from ATSDR which EPA considers or relies
on in selecting a response action, then the document and comments
should be included in the record fi le.
In the event that the ATSDR health assessment and EPA ’s risk
assessment appear inconsistent, a document explaining the
difference should be generated and placed in the record file.
39
-------
#9833. 3A
D. Natural Resources Trustees
Section 122(j) (1) of CERCLA requires that the Agency give
notice to tj ,e Natural Resources Trustee of a release or
threatened reiéäse of any hazardous substance which may have
resulted in damages to natural resources. The administrative
record file must include the Agency’s notice to the Natural
Resources Trustee, and any subsequent final communications (e.g.,
a release or final report). In addition, any factual information
provided by the Natural Resources Trustee which the Agenky
considers or relies on in selecting a response action should be
included in the record file.
In the event that the Natural Resources Trustee’s damage
assessment and EPA’s risk assessment appear inconsistent, a
document explaining the difference should be generated and placed
in the record file.
40
-------
#9833. 3A
V. DISCLAIMER
The policies and procedures established in this document are
intended solely for the guidance of employees of the U.S.
Environmental Protection Agency.. They are not intended and
cannot be t tie4 upon to create any rights, substantive or
procedural, enforceable by any party in litigation with the
United States. EPA reserves the right to act at variance with
these policies and procedures and to change them at any time
without public notice.
VI. FURTHER INFORMATION
For further information concerning this memorandum, please
contact Sven-Erik Kaiser in the Office of Waste Programs
Enforcement at FTS (202) 475—9806.
41
-------
#9833. 3A
GLOSSARY
Administrative Record : as used in this guidance, the Completed
compilation of documents the Agency considered or relied on in
selecting äT esponse action.
Administrative Record File : as used in this guidance, the
ongoing collection of documents the Agency anticipates will
constitute the administrative record when the selection of
response action is made.
ARAR : applicable or relevant and appropriate requirements (see
§121(d) of CERCLA).
ATSDR : Agency for Toxic Substance and Disease Registry.
: cooperative agreement (entered into with a State or local
government to transfer funds to conduct response activities).
CBI : confidential business information.
CERCLA : Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 as amended by the Superfund Amendments and
Reauthorization Act of 1986 (also known as Superfund).
C.F.R. : Code of Federal Regulations.
CMS : corrective measure study (RCRA corrective action document,
equivalent to an FS).
CRC : Community Relations Coordinator.
CRP : community relations plan.
Document : as used in this guidance, includes writings, drawings,
graphs, charts, photographs, and data compilation from which
information can be obtained. It does not, however, include
physical samples.
DOJ : Department of Justice.
EE/CA : engineering evaluation/cost analysis (removal document).
EPA : United States Environmental Protection Agency.
ESD : Environmental Services Division.
Explanation of Significant Differences : post-ROD document
described in §117(c) of CERCLA.
FOIA : Freedom of Information Act.
42
-------
#9833. 3A
F : field sampling plan.
HRS : Hazard Ranking System.
I : inter—agency agreement (made with a Federal agency).
--
Lead Agency : the agency that provides the OSC or RPM to plan anc
implement a response action under the NCP.
NCP : National Oil and Hazardous Substances Contingency Plan,
proposed revisions published on December 21,1988 (53 FR 51394).
NPL : National Priorities List.
OECM : EPA Office of Enforcement and Compliance Monitoring.
OERR : EPA Office of Emergency and Remedial Response.
OIRN : EPA Office of Information Resources Management.
Operable Unit : a discrete action that comprises an incremental
step toward comprehensively addressing site problems (see section
300.5 of the proposed NCP).
ORC : EPA Office of Regional Counsel.
OSC : On-Scene Coordinator (project manager for a removal action)
OSWER : EPA Office of Solid Waste and Emergency Response.
OWPE : EPA Office of Waste Programs Enforcement.
: preliminary assessment.
: potentially responsible party. -
QAPP : quality assurance project plan.
PA: remedial action.
RCRA : the Solid Waste Disposal Act as amended by the Resource
Conservation and Recovery Act.
: remedial design.
RI/FS : remedial investigation/feasibility study.
RFA : RCRA facility assessment (RCRA document, equivalent to a
PA/SI).
RFI : RCRA facility investigation (RCRA corrective action
document, equivalent to an RI).
43
-------
#9833. 3A
ROD : Record of Decision (documents the selection of a remedial
action).
RPM : remedial project manager (project manager for a remedial
action). —..—
SAP : sampling and analysis plan.
SARA : Superfund Amendments and Reauthorization Act of 1986 (see
CERCLA above).
Site File : the file containing all site documentation.
: site investigation.
SMOA : Superfund memorandum of agreement (made with a State).
Support Agency : the agency that provides the support agency
coordinator to furnish necessary data to the lead agency, review
response data and documents, and provide other assistance as
requested by the lead agency. The support agency may also concur
on decision documents.
44
-------
#9833. 3A
APPENDIX A
SECTION 113 (J) OF CERCLA
Q) Jcm:cz.u F vzzw —
(1) LJMrTATJON.—IJ1 any judzci 1 action under this Act, jud& .
cia ! review of any issues concerning the ad uacy of any re-
sponse action taken or ordered by the President shall be Umited
to the administrative record. Otherwise applicable principles of
administrative law shall govern whether any supplemental ma-
teru2ls may be considered by the court.
(2) Sw D.4.*o.—1n Considering objections raised in any judi .
cial action under this Act, the court shall uphold the F esi-
dent s decision in selecting the response action unless the object-
ing party can dera’zor strat.e, on the ad,puru.stratwe record that
the decision was arbitrary and capricious or otherwise not in
accordance with law.
(S) RZMEDY.—Jf the court finds that the selection of the re-
sponse action was arbitrary and apricious or otherwise not in
accordance with law, the court shall award (A) only the re-
sponse cOst4 or damages that are not inconsistent with the no-
tional contingency plan, and (B) such other relief as is consist-
ent with the National Coruuigeiwy Plan.
(4) Poct ou z ino is.—Jn reviewing alleged procedural
errors, the court may disallow cats or damages only if the
errors were so.serioiss and related to matters of such central rel-
evance to the action that the action would have been sign&fl.
candy changed had such errors not been made.
45
-------
9833. 3A
SECTION 113 (K) OF ER LA
( ) ADMINZSTRATIVZ RZCORZ) AND P ncIPA 7 ’ ION PRQCKDUZ
- - .. l) A.DMINISTRA77VZ Z5C ORD —The President shall establish
wi Odn i L Strative record UDOfl which the President shall base
the selection of a response action. The admi tr twe record
shall be available to the public at or near the facility at issue.
The President also may place duplicates of £he admuustrctwe
record at any other location. -
(2) PAJSIaPATZ0N PR RDUR.t .S. —
(A) RLMOVAL ACTION—The Prwdent shall prornulaate
regulations in accordar ce with chapter S of title S o(the
United States Code establishing procedures for the appro-
priate participation of interested persons in the develop-
ment of the adminiatratwe record on wluch the President
will base the selection of removal actions and on which ni-
dicial review of removal actions will be based.
tB) RZMEDL4.L ACTION.— The President shall provide for
the participation of interested persons, including potential-
ly responsible parties, in the development of the adminia-
tratwe record on which the President will base the selection
of remedial actions and on which judicial review of reme•
dial ctwM will be based. The procedures developed under
this subparagraph shell include, at a muumum, each of
the following
(&) Notice to potentially affected persons and the
public, which shall be accompanied by a brief analyezs
of the plan and alternatzue plans that were considered.
(u) A reasonable opportunity to comment and provide
information regarding the plan.
(ui) An opportunity for a public meeting in the af
fect.ed area, in accordance with section ll7iaXf) (v ’eiat•
ing to public participation).
(w) A response to each of the significant comments,
criticisms, and new data subnutted in written or oral
presentations.
(u) A statemtnt of the basis and purpcee of the select-
ed action.
For purpases of this subparagraph the adminutratwe
record shall include all items developed and received wider
this subparagraph and all items described zn the second
sentence of section 117(d). Th.e President shall promulgate
regulations in accordance with chapter S of title S of the
United States Code to carry out the requirements of this
subparagraph,
(h ZMTWM RECORD —Until such r gulatio uDder iub-
paragraphs (A) and (B) are promulgated, the admuustra
twe record shall consist of a!! items developed and received
pursuant to currrnt prrxedures for selection of the response
gCtzor , including procedures for the participation of inter-
&ed parties and the public. The development of an admin-
istratwe record and the selection of response action un4er
this Act shall not include an adjudicatory hearing.
(V) POTENTL4LLY PISPONSISLE PARTIES —The President
shall make reasonable efforts to identify and notify poten-
tially responsible parties as early as pc sibk before selec-
tion of a response action. ?voth&ng in this paragraph shall
be construed Co be a defense to liability
46
-------
#9833. 3A
APPENDIX B
MODEL FILE STRUCTURE
This model file structure may be used to compile an
administrative record file for a remedial action, a removal
action, or a combination of both remedial and removal actions.
If the record documents a remedial action decision, section 2 of
the file will contain only those removal action documents which
(a) predate the remedial record of decision and (b) are relevant
to the selection of the remedial action. If the record documents
a removal action decision, sections 3, 4, and 5 of the file will
contain only those remedial action documents which (a) predate
the removal action memorandum and (b) are relevant to the
selection of the removal action.
Justification is unnecessary for file categories without any
documents. Those categories should be left out of the index.
A document should be filed in only one category, even if it
falls into more than one category. It may be referenced in
another category. If necessary, additional subcategories may be
developed to accommodate documents not falling in any of the
defined subcategories. Avoid adding categories of miscellaneous
documents.
The correspondence subcategory can include comments and
responses specific to the category. If the comments and
responses are general in nature or address more than one
category, they may be included in the public participation
category.
47
-------
#9833.3A
INDEX (FIRST DOCUMENT]
1.0 SITE IDENTIFICATION
1.1. Background - RCRA and other information
1.2 } titication/Site Inspection Reports
1.3 Preliminary Assessment (PA) Report
1.4 Site Investigation (SI) Report
1.5 Previous Operable Unit Information
2.0 REMOVAL RESPONSE
2.1 Sampling and Analysis Plans
2.2 Sampling and Analysis Data/Chain of Custody Forms
2.3 EE/CA Approval Memorandum (for non-time—critical
removals)
2.4 EE/CA
2.5 Action Memorandum
2.6 Amendments to Action Memorandum
3.0 REMEDIAL INVESTIGATION (RI)
3.1 Sampling and Analysis Plan (SAP)
3.2 Sampling and Analysis Data/Chain of Custody Forms
3.3 Work Plan
3.4 RI Reports
4.0 FEASIBILITY STUDY (FS)
4.1 ARAR Determinations
4.2 FS Reports
4.3 Proposed Plan
4.4 Supplements and Revisions to the Proposed Plan
5.0 RECORD OF DECISION (ROD)
5.1 ROD
5.2 Amendments to ROD
5.3 Explanations of Significant Differences
48
-------
#9833. 3A
6.0 STATE COORDINATION
6.2. Cooperative Agree1nents/sMo s
6.2 State Certification of ARARs
7.0 ENFORCEMENT
7.1 Enforcement History
7.2 Endangerment Assessments
7.3 Administrative Orders
7.4 Consent Decrees
7.5 Affidavits
7.6 Documentation of Technical Discussions with PRPs on
Response Actions
7.7 Notice Letters and Responses
8.0 HEALTH ASSESSMENTS
8.1 ATSDR Health Assessments
8.2 Toxicological Profiles
9.0 NATURAL RESOURCE TRUSTEES
9.1 Notices Issued
9.2 Findings of Fact
9.3 Reports
10.0 PUBLIC PARTICIpATION
10.1 Comments and Responses
10.2 Conununity Relations Plan
10.3 Public Notice(s) (Availability of the Administrative
Record File, Availability the Proposed Plan, Public
Meetings)
10.4 Public Meeting Transcripts
10.5 Documentation of Other Public Meetings
10.6 Fact Sheets and Press Releases
10.7 Responsiveness Summary
10.8 Late Comments
49
-------
#9833. 3A
11.0 TE JDIICAL SOURCES AND GUIDANCE DOCUMENTS
11.1 EPA Headquarters Guidance
11.2 EPA Regional Guidance
11.3 State Guidance
11.4 Technical Sources
50
-------
#9833. 3A
APPENDIX C
MODEL INDEX
Attached is an excerpt of the Index of documents included
in the Administrative Record for the Love Canal site. The Index
lists the documents according to the EPA file structure (category
number). The Index includes the following information fields:
DOCUMENT NUMBER..., indicates the first and last page numbers of
the document. Both page numbers will be the
same for one-page documents. In this
particular index, the document number
consists of a three letter site code followed
by microfilm reel and frame numbers.
TITLE indicates the title or an enhanced
description of the document in parentheses.
AUTHOR indicates the author or primary originator
and the author’s corporate affiliation.
RECIPIENT indicates the addressee or primary recipient
and the addressee’s corporate affiliation.
DATE indicates document date by month/day/year.
/ / means no date was available.
TYPE indicates the document type.
CATEGORY indicates the EPA file structure number.
51
-------
#9833.3A
09/39/87 Adiinistrative Record - Category Nuiber Order Pqe: 105
L C
Document Nuiber: L 1—001—1O79 To 1089 Date: 02/07/86
Title: Additional Sampling of the Black, Ber holt: & Cayuga Creeks and Extended Sewer Inspection
Project — Su ary
Type: PLAN
Category: 11.4.0 public Meeting Transcripts
Author: none: PlY Dept of Envirorw ental Conservation
Recipient: Garbarini, Do gias: US EPA
t c .imerit Number: LDV—00l—1069 To 1078 Date: 11/1386
itle: (Status report of Love Canal Remedial Progra is f r p ic ee ng neld on 11/13/86)
Type: GRAPHIC
Category: 11.4.0 Public Meeting Transc-ipts
Autnor: Bobersky , Guy 1; NY Dept of Enviroruxertal Conserva i,:n
Recipient: none: none
Dc.cumeut Number: LV- 9- 13 T 0018 Date: 86/12/87
7 :tle: CLove Canal eas :b:iity Stucy Wori.shop, schedule of days events area atteruoance sheets;
Type: CRRESPOND 4CE
Category: 1.4.0 Public Meeting Transcripts
Con :t:on: INCOMPLETE
Author: none; none
nore: none
Docuent Numoer: LCV—009-0019 To 0024 Date: 08I2 /87
T itle: (Presentation of Proposed Plan for Love Cara1
Type: GRAPHIC
Category: 11.4.3 Public Meeting Transcripts
Con it:on: INCOMPLETE
Puthor: nofle: none
Recip:ent: none: none
52
-------
#983 3 • 3A
APPENDIX D
MODEL POSITION DES CR1 P ION FOR ADMINISTRATIVE RECORD COORDINATOR
INTRODUCTION
The incumbent serves as an Administrative Record Coordinator
in one of the Regional offices of the Environmental Protection
Agency (EPA). [ Each Region may want to add an introducti. 1 on to
Superfund and the Regional office here.) The incumbent is
responsible for compiling and maintaining administrative record
files for CERCLA (Superfund) response action decisions.
Section 113(k) of CERCLA requires the establishment of an
administrative record upon which the selection of a response
action is based. Such a record is a compilation of all documents
which the Agency considered or relied on in making its response
action decision. Judicial review of any issues concerning the
adequacy of any response action decision is limited to the
administrative record. Public participation in the development
of the record is required by law.
Establishment of thorough and complete administrative
records is essential to EPA’s Superfund program. Administrative
records which include public participation and withstand judicial
scrutiny allow EPA to meet its goals and objectives.
The incumbent will be responsible for compiling and
maintaining administrative records for large numbers of Superfund
sites. Each record requires coordination with many people
including: Federal staff, State and local officials, private
contractors, the general public and potentially responsible
parties. Further responsibilities include deliberations over
which materials to include in each record and requirements for
dealing with privileged materials.
MAJOR DUTIES AND RESPONSIBILITIES
1. The incumbent is responsible for compiling and maintaining
all of the adminjstratjve records for selection of CERCLA
response actions for a Regional office of the EPA. The
incumbent must have complete knowledge of all rules and
procedures governing development of the administrative
record files.
2. Receives and reviews all documents submitted by the Remedial
Project Manager (RPM), On-Scene Coordinator (OSC), Office of
Regional Counsel (ORC) and other appropriate staff for
inclusion in the administrative record files. The incumbent
will coordinate with staff responsible for deciding what
c3
-------
#9833. 3A
documents are included in the record and will arrange for
adding documents to the record file.
3. Compiles the administrative record file for each CERCLA
respon e action. This includes logging the receipt of each
document, maintaining a central master file of documents,
redacting information from privileged documents as directed
by ORC, maintaining any privileged portions of each record
using Agency security measures, arranging for copying of
documents in each record and transmitting the documents to
appropriate repositories.
4. Coordinates the compilation of the administrative record
files with State and Federal agencies. This includes
receiving records maintained by State and Federal agencies
and notifying appropriate personnel of these records for
their review.
5. Maintains and updates (monthly) an index of each
administrative record file in conformance with Agency
guidelines.
6. Ensures public access to administrative record files. This
includes notifying the public of the availability of the
record, making the record available for public inspection,
coordinating with personnel at the facility where the record
is located, maintaining an adequate copying facility and
maintaining a log of persons reviewing documents. The
incumbent will have to respond to phone calls and visitors
wanting information on and from the record. These functions
will be coordinated with the Office of Public Affairs and
Superfund Community Relations Coordinators.
7. Maintains the Regional Superfund Central Library of guidance
documents and technical references.
CONTROLS OVER WORK
The incumbent works under the general supervision of the
(Hazardous Waste Branch Chief). An administrative record is
reviewed and certified for litigation by a person designated by
the Regional Administrator.
54
-------
#9833.3A
APPENDIX E
COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTs
The Tnp i djum of CERCLA Response Selection Guidance
Documents” is a collection of guidance documents which are
frequently used in the selection of a CERCLA response action.
The following documents are the core guidance documents used
in the CERCLA response selection process and are included in the
Compendium. The Agency is preparing a more comprehensive list of
frequently used guidance documents. This particular list and
file structure was adapted from “Selected Technical Guidance for
Superfund Projects,” September 1988 - OSWER Directive No. 9200.7-
01.
SITE ASSESSMENT
Data Quality Objectives for Remedial Response Activities:
Development Process [ EPA 540/G87-003J
Data Quality Objectives for Remedial Response Activities:
Example Scenario [ EPA 540/G87—0 04)
Design and Development of Hazardous Waste Reactivity Testing
Protocol [ NTIS PB—84—158—807)
Guidance for Conducting Remedial Investigations and Feasibility
Studies Under CERCLA (Interim Final) (OSWER Directive 9335.3—01)
Handbook for Evaluating Remedial Action Technology Plans (Final
Report, Oct. 81-Jun. 82) [ NTIS PB—84-ll8-249J
Handbook, Remedial Action at Waste Disposal Sites, Revised [ EPA
625/6—85—006)
Modeling Remedial Actions at Uncontrolled Hazardous Waste Sites
[ OSWER Directive 9355.0—08)
Test Methods for Evaluation of Solid Waste: Physical/chemical
Methods, 3rd Edition [ GPO 9551 00l_0oOOO_l)
MONITORING AND SAMPLING
Geophysical Methods for Locating Abandoned Wells [ NTIS PB—84-2l2-
711)
Geophysical Techniques for Sensing Buried Wastes and Migration
[ NTIS PB—84—l98—449J
Practical Guide for Ground-water Sampling (NTIS PB—86-l37—304]
55
-------
#9833.3A
RCRA Ground-water Monitoring Technical Enforcement Guidance
Document (NTIS PB—87—].07-75l]
Sediment Sampling Quality Assurance User’s Guide (NTIS PB-85-233-
542]
Soil Sampling Quality Assurance User’s Guide (NTIS PB-84-l98-62l]
SOURCE CONTROL: ALTERNATIVE TREATMENT TECHNOLOGIES
Directory of Commercial Hazardous Waste Treatment and Re ycling
Facilities (NTIS PB—86—178—43].]
Guidance Document for Cleanup of Surface Tank and Drum Sites
(NTIS PB—87—llO—672)
Guidance Manual for Research, Development, and Demonstration
Permits Under 40 CFR, Section 270.65 (NTIS PB-86229—j.92]
Handbook for Stabilization/Solidification of Hazardous Waste [ EPA
54 0/2—86/001]
Management of Hazardous Waste Leachate [ NTIS PB-81—189—359)
Mobile Treatment Technologies for Superfund Waste (EPA 540/2—86—
003F]
Practical Guide - Trial Burns for Hazardous Waste Incinerators:
Project Summary (NTIS PB-86—l90-246/AS]
Prohibition on the Placement of Bulk Liquid Hazardous Waste in
Landfills - Statutory Interpretive Guidance [ NTIS PB—86—2].2—271)
Review of In-Place Treatment Techniques for Contaminated Surface
Soils, Volume 1 Technical Evaluation [ NTIS PB—85—124—881)
Review of In—Place Treatment Techniques for Contaminated Surface
Soils, Volume 2 Background Information for In-Situ Treatment
[ NTIS PB—85—l24—889]
Systems to Accelerate in, Situ Stabilization Waste Deposits (EPA
540/2—86—002)
Technology Screening Guide. for Treatment of CERCLA Soils and
Sludges (EPA 540/2—88/004]
Treatment Technology Briefs: Alternatives to Hazardous Waste
Landfills [ EPA 600/8—86—017]
SOURCE CONTROL - STORAGE/LAND DISPOSAL
Systems to Accelerate in Situ Stabilization of Waste Deposits
[ EPA 540/2—86—002] -
56
-------
#9833.3A
GROUND-WATER REMEDIATION
Guidance on Remedial Actions for Contaminated Ground Water at
Superfund ttes—(Interim Final) (OSWER Directive 9283.1—2
Leachate Plume Management (NTIS P8-86-122-330)
RISK/ENDANGERI.!ENT ASSESSMENT
Superfund Exposure Assessment Manual (Draft) [ EPA 540/1—88/100)
Superfund Public Health Evaluation Manual (EPA 540/1—86/060]
CONSTRUCTION TECHNIQUES AND PROCEDURES
Emergency Response Procedures for Control of Hazardous Substance
Release (NTIS PB—84—128-7i.9)
Guidance Manual for Minimizing Pollution From Waste Disposal
Sites [ NTIS PB—286—905)
Guide for Decontaminating Buildings, Structures, and Equipment at
Superfund Sites (NTIS PB—85—20l—234/AS]
Slurry Trench Construction for Pollution Migration Control [ NTIS
P8—84—177—831]
Superfund Remedial Design and Remedial Action Guidance [ NTIS PB-
88—107529]
Superfund Removal Procedure Revision #3 [ OSWER Directive 9360-
0.03B)
PROGRAM GUIDANCE
CERCLA Compliance With Other Environmental Statutes [ OSWER
Directive 9234.0-02]
Guidance Document for Cleanup of Surface Impoundment Sites (NTIS
P8—87—110—664]
Handbook, Remedial Action at Waste Disposal Sites, Revised [ EPA
62 5/6—85—006]
Superfund Federal-Lead Remedial Project Management Handbook (EPA
540/G—87/0 01)
Superfund State-Lead Remedial Project Management Handbook [ EPA
540/G—87/002]
57
-------
#9833. 3A
CASE STUDIES
Case Studies 1—23: Remedial Responses at Hazardous Waste Sites
[ NTIS P3—86—121—721)
Summary Report: Remedial Response at Hazardous Waste Sites (NTIS
PB—86—121—721)
COSTS
Costs of Remedial Response Actions at Uncontrolled Hazar Ious
Waste Sites (NTIS PB—83—164—830)
Remedial Action Costing Procedures Manual [ NTIS PB-88-113-691]
Removal Cost Management Manual [ OSWER Directive 9360.0-023)
58
-------
#9833. 3A
APPENDIX F
MODEL TRANSMITTAL COVER L rr
[ Name of Contact]
[ Address]
Dear [ Name of Contact]:
The U.S. Environmental Protection Agency is required by law
to establish administrative records “at or near a facility at
issue.” This administrative record consists of information upon
which the Agency bases its selection of response action for a
particular Superfund site.
By providing the public with greater access to these
records, it is our hope that they will be better equipped to
continent constructively on site activities and to understand the
issues relating to the selection of the response action at the
site.
We appreciate having the [ Name of local repository] as the
designated administrative record facility for the [ Name of site]
Superfund site. The enclosed record files, along with any future
documents relating to technical activities at the site should be
placed in the [ Name of local repository) and be available for
public review. The record files should be treated as a non-
circulating reference — it should not be removed from your
facility.
Also enclosed is a fact sheet to assist you and your staff
in answering questions posed by the public concerning
administrative records for selection of response actions at
Superfund sites. Please feel free to distribute this guide to
the public.
To ensure the receipt of the administrative record file, I
would appreciate your completion of the attached Document
Transmittal Acknowledgment form. Please return this form in the
enclosed self—addressed, stamped envelope.
Again, I would like to thank you for your cooperation with
the U.S. EPA in serving as a Field Repository. If you have any
questions or comments, please contact [ Name of EPA contact) at
[ Phone No.].
Sincerely,
[ Name)
Administrative Record Coordinator
59
-------
#9833.3A
APPENDIX G
MODEL DOCUMENT TRANSMITTAL ACENOWDGw i
From: [ R iozi 1 Office Address)
To: [ Field Repository Address]
I acknowledge that I have received the following documents from
the U.S. EPA Region ____ Office, pertaining to [ Site Name)
Superfund site.
Administrative Record Name — rsite Namel
Administrative Record Document Numbers -
Signed ______________________________
Date __________________________________
Please return this form to: [ Regional Office Address]
60
-------
#983 3 • 3A
APPENDIX H
FACT SHEET
Xthninistrative Records in Local ReDositories
The “administrative record” is the collection of documents
which form the basis for the selection of a response action at a
Superfund site. Under section 113(k) of the Comprehensive
Environmental Response, Compensation, and Liability Act, as
amended by the Superfund Amendments and Reauthorization Act
(CERCLA ), EPA is required to establish an administrative record
for every Superfund response action and to make a copy of the
administrative record available at or near the site.
The administrative record file must be reasonably available
for public review during normal business hours. The record file
should be treated as a non—circulating reference document. This
will allow the public greater access to the volumes and also
minimize the risk of loss or damage. Individuals may photocopy
any documents contained in the record file, according to the
photocopying procedures at the local repository.
The documents in the administrative record file may become
damaged or lost during use. If this occurs, the local repository
manager should contact the EPA Regional Office for replacements.
Documents may be added to the record file as the site work
progresses. Periodically, EPA may send supplemental volumes and
indexes directly to the local repository. These supplements
should be placed with the initial record file.
The administrative record file will be maintained at the
local repository until further notice. Questions regarding the
maintenance of the record file should be directed to the EPA
Regional Office.
The Agency welcomes comments at any time on documents
contained in the administrative record file. Please send any
such comments to (name and address). The Agency may hold formal
public comment periods at certain stages of response process.
The public is urged to use these formal review periods to submit
their comments.
For further information on thG administrative record file,
contact (name and phone no. of Administrative Record
Coordinator).
61
-------
#9833. 3A
APPENDIX I
MODEL NOTICE OF PUBLIC AVAILABILITY
pptyl ’
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ANNOUNCES THE AVAILABILITY OF THE
ADMINISTRATIVE RECORD *
XYZ SITE, (Locality, State]
The U.S. Environmental Prote tion Agency (EPA) announces the
availability for public review of files comprising the
administrative record for the selection of the (remedial,
removal] action at the XYZ site, (Locality, State]. EPA seeks to
inform the public of the availability of the record file at this
repository and to encourage the public to comment on documents as
they are placed in the record file.
The administrative record file includes documents which form
the basis for the selection of a [ remedial, removal] action at
this site. Documents now in the record files include
[ preliminary assessment and site investigation reports, validated
sampling data, RI/FS workplan, and the community relations plan].
Other documents will be added to the record files as site work
progresses. These additional documents may include, but are not
limited to, the RI/FS report, other technical reports, additional
validated sampling data, comments and new data submitted by
interested persons, and EPA responses to significant comments.
The administrative record file is available for review
during normal business hours at:
[ Repository Name] and U.S.EPA - Region Z
[ Address and Phone #] [ Address and Phone #]
Additional information is available at the following locations:
Verified sampling data - Contract laboratory,
and documentation (Address and Phone #]
Guidance documents and - EPA-Region Z
technical literature [ Address and Phone #)
Written comments on the administrative record should be sent to:
[ Name], Office of Public Affairs
U.S. EPA - Region Z
[ Address and Phone ]
62
-------
#9833.3A
APPENDIX J
NICROFOR1 APPROVAL MEMORANDUM
S ,.
F UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, D.C. 20460
OCT 2 1 l B
OFFICE OF
SOLID WAS?E AND EMERGENCY RESPONSE
) IEM OR A ND UM
SUBJECT: Microfilming the Administrative Record
FROM: Edward J. Hanley, Director 7
Office of Information Resources Management
TO: Asa R. Frost, Jr., Director 1
OSWER Information Management Staff
In accordance with EPA Records Management Manual, Chapter 6,
dated 7/13/824, I approve OSWER’s request for an
administrative record micrographic system for regional
hazardous waste management programs.
The- feasibility study prepared for OWPE, entitled
“Assessment ot the Suitability and Costs of Alternatives for
the Administrative Record” (June 30, 1988), satisfactorily
documents and justifies the need for converting the
administrative record to microform. In particular, the
requirement under SARA to make the administrative record
publicly available at or near each hazardous waste site
makes microform a cost—effective storage medium.
Please inform each regional hazardous waste program of my
approval of OSWER’s request and of the need to comply with
the remaining provisions of Chapter b of the EPA Records
Manual should the region proceed with implementing an
administrative record micrographic system.
cc: SIRMOs, Region 1 — X
63
-------
#9833. 3A
APPENDIX K
MODEL CERTIFICATION
IN THE [ NAME OF COURT]
UNITED STATES OF AMERICA,
Plaintiff,
V.
[ NAMES OF DEFENDANTS)
Defendants, CIVIL ACTION
NO. [ number)
V.
[ NAMES OF THIRD PARTY
DEFENDANTS J
Third Party Defendants
CERTIFICATION OF DOCUMENTS
COMPRISING THE ADMINISTRATIVE RECORD
The United States Environmental Protection Agency (EPA)
hereby certifies that the attached documents constitute the
administrative record for selection of response actions under the
Comprehensive Environmental Response Compensation and Liability
Act or 1980, as amended, for the [ name of site] site in (City or
County], [ State].
By the United States Environmental Protection Agency:
In witness whereof I have
subscribed my name this ____ day of
_________ 19 in fcitvl
rsignature)
I typed name
64
-------
j uni At(1 1. UC IHE PROPOSED NCP
F.4esei Register / Vol. 53. No. 245 I Wednesday. December 21. 1988 I Proposed Rules 314&
act in their capacity as a unit of
government, they may receive funds
from the Fund for section 104 response
action as authorized by section i11(a)(1)
of CERCL.A. A political subdJvision of a
State is treated as a State for the
purpose of section 107.
3. Crones for tecia’A aI gs4jstonce.
Current NCP 1300.25(d) refers to
cooperative agreements and contracts.
Amendments to CEP.CLA section 111
authorize technical assistance grants
pursuant to section 117(e). Cooperati’ e
agreements and grants. when taken.
together. are generally referred to as
“assistance agreements.” EPA Is
proposing to revise 300.25(d) to refer to
“procurement contracts or assistance
agreements.”
Subpart 1—AdministratIve Record for
Selecton of Response Action
Proposed Subpart I of the NCP is
entirely new. It implements CERCLA
requirements concerning the
establishment of art administrative
record. Section 113(k)(1 ) of CERCLA
reçuires the establishment of an
administrative record that contains the
documents that form the basis for the
selection of a CERCLA response action
In addition. section 113(k)(2) requires
the promulgation of regulations
establishing procedures for the
participation of interested persons in the
development of the administrative
record
EPA is proposing regulations
regarding the admutisti’ative record that
include procedures for public
participation This will ensure the
development of a complete and accurate
record by all parties responsible for
compiling records. because procedures
for establishing and maintaining the
record are closely related to the
procedures overi p :
part icipa Lion.
Because this subpart is entirely new
the foliowing discussion is not divided
into major revisions, other revisions.
and points of clarification. Instead. Lt
explains the piirpose of the -
adniin:stri.tive record and then generally
provides a paragraph by paragraph
e’rplanation of the proposed riigu ations
A. 3ackground and Purpose
Under CERCL.A. the admizustrat ve
record established under section 113(k)
serves two primary purposes. First.
under section 113(j). judicial review of
any issue concerning the adequacy of a
reqoonse action ts limited to the’
administrative record. Seco,d. sect an
; ouir s th t the . e
record used as a ve cie tOr Cu’I!’c
_ ;;.. ... .n.r.. 1C c C’ .
resconse action. er ’sir’lg that EP .ii
considered all relevant factors in
selecting the response and that
interested parties have been given
adequate notice and an opportunity to
participate in that selection.
1. /udicioi review. Section 113(fl(l) of
CERCL.A provtde that )udlclat review of
any Issues concerning the adequacy of
any response action shall be limited to
the admuustrative record. Section
1 13(j)(2) provides that the court shall
uphold the selection of a response
action unless the objecting party can
demonstrate, based on the
administrative record, that the decision
was arbitrary and capricious, or
otherwise not in accordance with law.
These statutory provisions codify well-
established principles of administrative
law concerning the applicable standard
and scope of review for informal agency
actions. The legislative history of
section 113 demonstrates that it is
intended to clarify and confirm the
applicability of these administrative law
principles to CERCLA response
selection. (See S Rep. 99—11. 99th Cong.
1st Seas. 5 ’ (1985); H.R. Rep. 99—253. 99th
Cong.. 1st Seas. 82 (1985); Cong. Rec. H
11084 (daily ed. Dec. 5. 1985))
Limiting judicial review of the
selection of a response a&.tlon to the
adirimnistrative record ensures that
litigation on the selection of the
response action focuses on the selection
in tight of the information available to
the decisiorirnaker at the tune the
response was selected. Judicial review
lunited to the administrative record
contributes to the overwhelming public
interest in effecting the expeditious
cleanup of potentially health- and
enviror.xnent-threatening hazardous
waste siteS and ensures that all
interested persons may participate
equally in the administrative
dec.aa r.nuiking process. Toe prir.cipcl
effect of limiting judicial review to the
administrative record is that courts will
cot engage in de nova fact-finding
during their review of a challenge to the
decision to select a certain response.
Thus record review of response
se! ction decisions would mean that
persons challenging the response
decision could not depose. examine or
cross-exomuie on.scene coordinators
(OSCs). remedial project managers
(FSMs). government consultants. or
decisionmakers with respect to the
response decision or engage in any other
d.scovery activities Atso. the imposition
of long and costly trial-type procedures
in i c ion 105 actions would greatly
de 1 a ’ . response
D.i .1.CJDC’.Qfl Se t ns
1 A,’ ond ‘ ‘ of CF’ CLA reou” ’
‘-“ : “ ‘ ‘- ‘ c -e :.ji” .
es;abltsrnr.g prccedures for the
participation of interested persons In the
development of the adm.thIs etIve
record. Participation by interested
persons, where appropriate, will ensure
that A has considered the concerns of
the public, Including potentiall’ -
responsible parties (PPP.). In
the response action. In additlo,
purposes of ailn i’rwtrstivs end juuiOiSI
review, the administrative record can
contain documents that reflect the views
of the public. including PRPI and those
not party to any judicial proceeding.
concerning the selection of a response
action.
For remedial actions, section
113(k)(2)(B) of CLA establishes the
following minimum procedures for
public participatioru
L Notice to potentially affected
persons and the public, accompanied by
a brief analysis of the plan and
alternative plans that were conalderedi
a. A reasonable opportunity to
comment and provide information
regarding the plan
in. An opportunity for a public
meet.lng in the affected area. In
accordance with section 117(a)(2) of
CERCL
iv. A response to each of the
significant comments, criticisms, and
new data submitted in written or oral
presentations, and
v. A statement of the basis and
purpose of the selected action.
These requirements are virtually the
same as those required by section 117 of
CERCL.A concerning public par’ tsou
for remedial actions. These pu
participation requirements are r
for codification today in 300.430 of
Subpart E of the NCP. Subpart I expands
on the public participation requirements
of Subpart E.
E. caase the nature of removal actions
often involves the need for prompt
action, the procedures proposed today
for public participation in removal
actions are quite different from those for
remedial actions. Removal authority
allows the lead agency to move quickly
in situations where prompt lead agency
action is warranted. Section 113(k)(Z)(A)
of CERCLA requires that there be
“appropriate” participation of interested
persons in the development of the
administrative record supporting
rew.o a1 actions. The legislative history
of this section states that these public
participation requirements ‘are not
intended to hamper emergsncy remo’
actions. Nonethclmss. the Administrator
is directed to develop ap rupriate
p r1ii ; OiiOfl proced.mres for removal
ac or3 and shoiid follo these
reouirer efl’3 i’ ne maximum extent
pzcar.le” i.l-l R Rep 99 —253, 99th
-------
51464 F.de 11 4 Reg ster1 Vol. 53. No . 245 / Wednesday, Deceznb&
198$ F Prooceed Rules
Cong. 1st Seas.. at C). Public
varticipation reqinrem for removal
actions are sdi ease j * 300.4151nJ of
today’s proposed regulations. Additional
public paltupatioc procedures In the
deveiopment of es adlYIrntst] .ahve 1 rd
,‘ior a removal action are addressed in
§ 300.820. The public participation
procedures are designed to ensure an
appropriate level of public involvement
for removal ac ons without causing
unnecessary delay. In general, where
there is tune to solicit pubhc comment
before the sel on cf a removal action.
the lead agency will do so Public
participation procedures for removal
actions are d ,cribed m greater detail
below.
B Current Record Requirements
Section 113(k)(2) C) of CERCLA states
that until regulations on the
participation of interested persons in the
development of the administ.rztive
record are promulgated, the
administrative record shall consist of all
items developed and received pursuant
to current procedures for selection of the
response action, including procedures
for the particrpation of interested parties
and the pubhc Current procedures on
public participation in the selection of
response ecticns mclude an extensive
community rehit,ons pmgrdm through
which interested persons have notice of
in.forinatioi, thro gh notices in local
newspapers. community relations
niallings. peb4i: meetings. and letters
cluding notice letters to potentially
sponsible parties. An adequate record
_. ould be compiled and maintained
through use of current procedures for
sites where the remedial investigation or
removal action has already begun pnor
to promulgation of these regulations
These proposed admirustrativa record
requirements build upon and formalize
exist.ng procedures for the exchange of
information on the selection cf a
response action,
The cutoff date for the applicability of
these regulations is based on when the
admirustrative record file must first be
made available under these regulations
The lead ag cv may not be able to fully
comply with regulations concerning
compilation of the record which are
promulgated after a record has already
been compiled and made available at or
near a site. Thus, at such sites, the lead
agency will comply with these
redulations to the extent practicable
C Summary of New Subpart I
1 Establishment alan odrr: ,,strc: i’e
r ”cord( f 300800) As explained eLrher.
s ctior. i13 .) requires the estibuisr.ment
of ar in strauve recoro ccns’r’iig of
the ,iocum:nts &a lorm the basis for
the selection of a response action. An
administrative record is the compilation
of documents considered or relied on by
the agency in making a decision. in this
case, the selection of the response
‘—act n far the site. Proposed 300.800(a)
codifies this statutory provision and
provides that such establishment is the
responsibility of the lead agency. The
regulation also uses the term
“admirustrative record file” to refer to
documents which the lead agency
anticipate, will be included in the
administrative record when the decision
on re i .iu.se action selection is made.
The administrative record file contains a
body of documents whidi increases as
documents are added and does not
necessarily constitute the final
adrmn:strative record.
The term “documents,” also used in
the preamble and proposed regulations,
is intended to be very broad. It includes
writings, drawings. graphs, charts,
photographs, and data compilations
from which information can be obtained,
It does not include physical samples.
Section 300 800(b) addresses
administrative records for Federal
facilities Executive Order 12580
authori,zes Federal agencies to establish
the ad.m.inist’ative record for selection
of response actions for Federal facilities
under their jurisdiction, custody, or
control EPA, however, is required to
promulgate regulations establishing
procedures f j the participation of
interested parties in the development of
the record. Federal agencies must
compile and maintain records as
required by this subpart, as finally
promulgated. Section 300.800(b) also
clarifies that although the Federal
agency is responsible for compiling and
mair,ta ning the administrative record.
EPA may furnish doct .n .ents which the
Federal agency is to place in the
administrative record file to ensure that
the administrative record includes all
documents which form thebasis for the
selection cf the fesponse action.
Section 300 BC3fb)(2) provides that
when EPA (or the United States Coast
Guard (L’SCC)) is tne lead a2ency at a
Federal faci1it . EPA (or USCG) shal
compile and maintain the record.
Executive Order 12580 deLineates cases
in which EPA (or USCC) is the ‘ead
agenc EPA is the lead agency, for
ei arnple. at Federal facilities conducting
on•site emergency removal actions
(o ner than at DOD or DOE FaciliLes).
The L’SCG can be the lead agency at
Federal faciiities v.ith on-site emergency
remo a actions in the coastdl zone.
Section 300 800(bl(3) requires that
v he- EP is irvoi ed ii the selection cf
a rcsoo-lse a:t oi a a Feacral facil’ty on
66
the NPL, the Fed ’al agency snail
provide EPA with a copy of the index 0
documents included In the
administrative record file, the P.1/PS
workplan, the P.11 PS released for public
comment the proposed plan, any public
comments received on the RI/PS and
proposed plan, and any other documents
requested by EPA on a case-by-case
basis. EPA is involved In the selection of
a response action when It is jointly
selecting the response action wth the
Federal agency, as delineated in
Executive Order 12580. Such joint
selection occurs, for example. for all
remedial actions at Federal facilities on
the NPL In such cases, EPA must be
sufficiently familiar with the contents of
the adnunistrative record to be able to
select jo tlv the response action.
rPA considered other options for
involvement in the development of the
admnixustrative record for Federal
facilities, such as periodic visits to the
Federal facility to review tha
adminictrative record file as it is
compiled, receipt of the entire contents
of the record file for a!i NPL sites, and
receipt of the entire contents of the
record file for all response actions at all
Federal facilities. EPA has tentatively
rejected these opt .ons a.a being overly
burdensome. EPA be, .ieves that the
preferred option aiiows enough
flexibility for EPA to ensure that the
response action selected ‘oy the Federal
agency adequately acco’.ints for the
concerns of the public., is consistent with
response action selection at non-Federal
facilities, and allows EPA to be
sufficiently involved in the decision
when it is jointly selecting the response
action. EPA solicits comments on
alternative procedures for EPA’s
involvement in the development of the
administrative record for Federal
facilities.
Section 300 800(c) speciles that it is
the responsibility of the State to compile
arid maIntain administrative records at
a State-lead site. Section 300.800(c)
applies only if EPA and the State
formally designate the State as the lead
agency for a site as specified in Subpart
A under the definition of lead agency.
The requirements for State-lead sites are
similar to those for Federal agencies
compil:ng administrative records for
Federal facilities at which EPA is
involved in the selection of the response
action EPA is proposing that the State
provide EPA. comiriencing at the time
the administrative reccrd file is first
made available to the public, with the
index of documents included in the
adrnizustrati e record file The issues
relating to this requirement are simiar
to those outlined above for Fedcral
-------
Federal Register I VoL 53. No. 245 / Wednesday. December Zt. 1988 I Prop Rules
facilities. Mdition Jly. EPA may require
that State. piece additional documents
In the record file to ensure that the
administrative record Includes all
documents which form the basis for the
selection of the respo action.
Section 300.800(d) p de ’that
Suhpa.rt I applies to all response actions
taken under section. 10401 CLA or
sought. secured, or ordered
administratively or judicially under
section 108 of CERCLA. The statutory
language of section 113(j)(1) states that
in any judici.sl action under this Act.
judicial review of any issues concernm2
the adequacy of any response action
taken or ordered by the President shall
be limited to the administrative record.
It has been argued that sectIon 113(j)(1)
of C CLA does not apply to injunctive
actions taken under section 108. and
that the literal meaning of the phrase
“taken or ordered by the President”
does not include ecuon 106 actions for
Injunctive reiief unless an
administrative order is issued.
The statttorv language of sections
1 13 (j) (1 and (Z . when read together.
indicates that this narrow interpretation
of sect Ion 113(r) is incorrect. Together.
sections 113 (j) (1) and (2) provide that
judicial review of any response action is
limited to- the’ athnrruistratzve record. In
addition. section 121 of cERcLA
expressly provides that the President
shall select all remedial actions to be
carried out by EPA under section 104 of
CERCLA or secured under section 106
No exceptfori for sectIon 106 injunctive
actions was made.
According!y. consistent with the
statutory language’ and congressional
intent. EPA is clarifying that limiting
jt.dicial review of response action
selection to the adiiunistratjve record
applies to all actions taken under
s ctioru 1C4 of CERCL.A. or sou2ht
secured, or ordered administratively or
judicially under section 106 of CERCLA.
Section 300.800(d) further provides
that Subpart I o ily applies to those sites
at which the remedial investigation
commences or the action memorandum
is signed after the promulgation of these
regulations. For those sites
grandfathere 1 by para ’aph (d).
paragraph (e) provides that the lead
agency shall comply with these
regulations to the extent practicable on
a case.by.care basis. This does not
mean that administrative recorcs are
not required for these sites or that
judicial review of the seieciior. of a
response act:on at these sites will not be
limited to the adrninigtra;i’ e record.
Ratl’.er as ex,lained carLer. th:s
pro vis ci SiTT V recczr.. es that therl
u De ongoir.g acti s t Wr. cn the
fi a! ;egulaticns cannot be complied
with. In fulLTh. public ptztlcfpttion
procedure, for remedial actions outlined.
in section 113(k)(2)jB ) and 117 of the
statute and discussed earlier in this
preamble, however. are applicable to
any Record of Decision (ROD) signed
after October 17. 1986, the data that, in
general, the amendments to (IRCLA
took effect.
Subpart I does not apply to third party
cleanups. Le.. those not undertaken
pursuant to sections 104. 108 or Ui of
CERCLA. Under this proposal. such
cleanups need not comply with these
admtni tra ve record requlremcr.ts.
Section 300.800(d) does not require that
State actions for cost recovery t ar
section 107 of C CLA. where the State
used only its own authorities to conduct
s response action, comply with this
subpart L I a State is seeking tn recover
costs from responsible parties under
section. 107 cfC RCLA. EPA may wi
to require that States comply with this
subpart to expedite judcial proceethags
in such circumstances. EPA solicits
comments on whether these regulatior.s
should apply to those situations.
2. Location of the administrative
record (. ‘XV 8037. Section ll3Ck)tIJ of
CERCLA requires that “the
administrative record. shall be available
to the public at or near the facility at
issue. The President also may place
duplicates of the administrative record
at any other location.” EPA proposes to
require that the adnwnsti’ative record
file generally be located in two places.
First, as provided by the statute, the
record file shall be located at or near the
facthty at Issue. (To- conform to the
terminology of the rest of the NC’, the
term “site” will be used In this subpart
as a substitute for the term “facility”
uDed in the statute.)
In addition, EPA proposes that the
administrative record file be located at
an office of the lead agency or other
central location. Examples of central
locations include an EPA Regional
Office, an EPA field office, a Federal
agency equivalent to an EPA Regional
office, or. for State lead sites. a State
erivrronmental agency office. EPA -
considered making the central location
requirement cpuonal. but concluded that
the lead agency ha. more control over
the maintenance of the necessary
documents at the central location than
at or near the site. As aesoribed below.
the file eras near the site should contain
a copy of most of the documents
induced in the administrative record
r.:e at the cer.trai location.
Unoer 300 &‘ 5. the file at the cer.tral
lcr.au.ci uust ccnta n ail accu,enzs
‘iuc are oart of the ad : t . ” e
recoro except ccrta.-i var. rc
data. quai ty cant-cu and quality
usura e doansient,. shale at tody
form., sad pehilaly avsiIabIe p. ,ihnl. _ t
part of the record, maybe hiosted ,
elsewhere, u provided In 300 . i
and (c). and explained further
The aistrattve record tile’
near the site at issue should be loca eu
at one of the Information. repositories
which may already eidzt for co uriity
relations purposes.. The Information
respository, mam ed by the
community reIaban coordinator, may
contain additional reformation which. is
of interest to the pubhc. but whIch does
not f a basis for the reqmnae aotion.
decision. Examples of such information.
Include newspaper a ez. press
releases. and orma cone ’ . m g
NPl. listh If there is or ematmg
community relations b fi rrn tian
repository, or the Infomiat ian repository
is inadequate for’ mamr2lm’lg the
administrative record file, the file may
be located In some other publicly
accessible place. EPA. is crYr ’flI. ’mg and
seeks co nm 11ts on lrmi$irg the
information which mi be available at
or near the site in n au w e the
record is e v 11nus for the puhbnly
accessible locatu - typically,. Local
libraries, town. halls, or’publmcscho
are used as publicly acee wth1p
locationa.
EPA may make the. admuustmatve
record file available to the public in
aumofo EPA may mofoon- i’c-
documents that form the basis fo
selection of a (3.A response
in the regnier c u of bnainess .
miorofo uyywg will be is
accordance with. technical re nla is
conceming micrographicz of Federal
Government records and. EPA rtm,i4
m gemant proc es.
EPA npc;as at umn
need not be physically located at or
near the site because of the nibstantial
administrative burden this would pose.
The infarzaatioa not availabl, at or near
the sita would, howeven always be
available to the public, at another
lccatioa. Far ex inpl 300.805(a)
provides that certain types of technicaL
information may be located In the
central location or elsewhere, such as a
contact laboratory or field office,. The
index to the drv, ‘tralive record file.
v.hich will be incladed it t the
administrative record file both at. or near
the site and at the central locatiozt must
Indicate where the information is
located and how it can. be obtainod, for
ir.zcecton. Thus. such information
ccr.t.r.ues to be easily accass bie to
ei’ed 2r!C2!. E .a ’! s of
. c icc : ,o rro ur
data. wruch are normally summarized in
67
-------
51465 Federal Regiater I Vol. 53. No. 245 I Wednesday, December 21. 1988 I Proposed Rules
data summary sheets ano are quite
v ,lu unous. doctimentation of cuality
assurance and quality control which is
normally summarized in the remedial
investtgatlon/feaslbthty study (Rl/FS).
and chain of custody forms. ThêWtype,-
of documents may be stored in the EPA
Regional office, contract laboratory
office that conducted the testing. State
environmental agency office, or
elsewhere, as appropriate
Section 300 805(b) provides that
guidance documents not generated for
the particular site for which an
admirustrative record 15 being compiled
may be maintained in a library at the
central location, The guidance
documents need not be in each site-
specific administrative record file at the
central location or at or near the site at
issue. ajA anticipates that each EPA
F.egional office will maintain a central
library of guidance documents which
are frequently cited as a basis for
select.in a response action This
approach eliminates the need for
reproducing copies of the same
docun ent for each site record The term
guidance document includes issue.
specific policy memoranda as well as
formal guidance documents Examples
of such guidance documents and issue-
specific memoranda include the PJ/FS
guidance document, guidance on risk/
exposure assessments, guidance on
applicable or relevant and appropriate
requirements, memoranda on maximum
cor.taminant levels, and guidance on
testing for specific contaminants.
Guidance documents and memoranda
which are generated for a particular site
must be placed in the site-specific
administrative record file. (For example
a cocumerit on dioxin contamination at
XYZ site must be placed in the XYZ site-
specific administrative record file If it is
aso used as a guidance docwnent on
the cleanup of dioxin at other sites, it
may be located only in the central
library rather than physically in the
aoministrative record file at those other
sites ) The central library of guidance
documents will be available to the
public
EPA proposes in 300 805(e) that
pibuzciv available technical literature
not generated for a site at issue need not
be located at or near the s;te at issue in
the central library of guidar.ce
Gocumerits or in the site-specific
admirustrati%e record file pro ided that
itis Lsted LI the index to the
administrative record Copvr:gnt laws
rna bar the cop 1ng of these materials
w u,out specific appro als EPA
believes that expending Superfund
resou-ces on obtaining copes of
ptil)ici avaiable technical llieratc e ‘s
not appronriate. Exampies of publicly
av4i1db . tec’r.n caI literature inciude
widely used engineering handbooks on
ground-water moniionng, and articles
from technical journals, which are
readily available in technical libraries
The Inde , must list these documents
separately and indicate information on
their availability, or. the literature may
already be cited in a docwnent included
in the record.
Technical literature, however, which
is not generally available should be
included in the site-spec flc
administrative record file. Because these
documents are by definition not easily
obtainable, they should not simply be
indexed. They generally will not be used
for many sites, therefore, it is also not
appropriate to include them in the
central library of guidance documents
The library should be reserved for
documer.ts which are frequently used to
select response actions Examples of
technical literature not generally
available include articles from technical
journals or unpublished documents not
evaiiab e through the Library of
Congress or not circulated to technical
libraries
Section 303 805 d) provides that
doruxnents included in the corifioerit.iaj
portion of the admir.istratwe record file
shall be located only in the central
location S nce the public cannot rev:ew
the confidential and privileged
information, there is no reason to
recuire that such irJorniat.on be
maintained at or near the site.
EPA is propostng in 300.835(b)(5)
that. for reasons of adirixustrati e
feas.biht), an administrative record file
for eme.-gencv removal actions where
on-s.te actj iues cease within 30 days of
initiation need only be available for
public inspection at the central location
Emergencies are those actions with little
or no lead time and generally of very
short duration—for example, a highway
spill. The benefits of pithng the record
file at or near the site are outweighed by
the administrative burden on the
response to such emergencies. V.’nere
feas:ble, a notice may be placed at the
site explaining that the aa. -ninistrative
record file will be available for public
inspection at the EPA Regional office (or
cther central location).
3 Contents of t. e admznistrotjs’e
record ( 3OO 820) The administrative
record unaer section 113(k) consists of
documents which form the bass for the
selection of a response action at a
particular site In determining hich
uocumen s form trie basis for the
response action i e . what constitutes a
:oiioletc record the leac 52cnc% shall
i:lude docir-cnts ccns,dered b t ie
decisionniaker. including those relied
upon by the decisionmaker in efiecting
the response action.
It should be noted that documents
constituting the administrative record
for selection of a response action are
only a subset of documents that the lead
agency may have compiled with respect
to a particular site. The lead agency will
also have general files consisting of
documents relevant to other aspects of a
site
Section 300.810 discusses generally
what should be contained in the
admjiustrat, ’e record file for response
selection and what should be excluded
Section 300 810 a) states that it should
contain factual information, data;
analysis of the factual information and
data, guidance documents, technical
literature, site-specific policy
memoranda. cocuments received.
published, or made available to the
public under § § 300 815 and 300 820 of
this subpart, decision documents, and
enforcement orders. In addition, an
index listing the documents contained in
the administrative record file should be
included at the begiiu’.rng of the record
file.
T’ne follo%sing is a list of documents
whjcn tvpicall), but not in all cases.
shoild be par’. of the aamlnistrative
record for selection of a remedial or
removal action. (For purposes of this
subpart, an RJ/FS should be included as
a component of a remedial action
record.) Only documents within each
category hicri form a basis for
selecting the response action will be
part of the record (i.e.. although
corresponaence is listed under public
Participation. correspondence on
liability issues is not part of the record)
This list is intended to be illustrative.
nut not necessarily required at each site
or complete.
i. Contenz.s of Rem ethal Action
Admin,srj ’atjve Record.
(a) Factual Jnforrnotjon/Da:a
Samoling plan
Validated samplirir and analysis data
Ch?u’i of custody forms
Project plan or program plan (QAPP)
Preliminary assessment report
Site investigation report
Inspection reports.
FJ/FS final % orkpidn.
Amendments to final RI/FS workplan
S irrtmarv of remedial action
alternatives (used in conjunction with
earll. speciel notice letters)
Data summary sheets.
RI I S
Technical studies
Factu:l info-metion submitted bt the
p i .r ir.cludi’ PgPs
68
-------
Docurneaza supporting the lead
agencys determlnati of Im1 1inenj and
substantial endangerme
(b) Policy and Guidance.
Mesnorancj on policy decbtons (site.
Ipec1 c and tssue-speciflc).
Guidance docwnenj
Technical literature.
(c) PUbllc Participation.
Correspondence.
Public notzce3.
Public conimen .
CoiTununity relations plan.
Notice letters to PR.Ps.
Proposed plan.
Transcript of meeting on RI/FS and
proposed plan, arid waivers under
section 121(dJ of CERCIA.
Docu -rierrta tion of other public
meetings.
Respcnze to sign:frcant comments.
(d) Other Parrr Iriformot ion.
ATSDR health assessment
Natural Regourne Trustees finding of
fact and final reports.
Documentation of State Lnvolvement.
(e) Dec:,rai, Documenf.f.
Record of Decision LncIudin
responsivenens summary.
(1) E.”forccmeju Docvrnejtg.
Athnuug ira ti ye oru.ers.
Consent decrees.
Affidavits.
Response to notice letters contaim.ng
rele ant factual inf rmation..
(g) Index.
ii. Contrats of RermovaJi4 .r, 0
Adm,njstzvt.. ye Record.
(a) Factij j !nforciazjon ‘Data.
Sampling plan.
Valiaated samphog and analysis data.
Chain of cu.stoity forms
Prelimuiarv asaessment retort.
S te investigation report.
Inspection reports.
Engineering evaluacion/Cost analysis
report [ EE/CA1.
Tecr nicaj stucies pe fcrned for the
Site.
Fac ual information submitted by the
public. mc .um PRPs.
Ducumens supporting the lead
agency a determination of imminent and
substar.t.al endangerment.
(bi F- . J 4 and Gwdonce.
Memoran a on policy decisions (site.
specific ond !ssUe..pecmnc;.
Guidance doc.iments.
Technicaj literature.
(c) Pith 1w Participat:on.
Correspondenco.
Public notices.
Public comments.
Community relations pia
Notice letters to PRPs.
Documen .at on of othor mnoetto s
d l Q1J e’i c:rvfr’or-,:.
Natural Resource trustees Endiz g of
fact and finalteporta.
Documentajj at State IaVQ1VenieL t.
(eJ Decision Documents.
EE/CA approval memorandum.
Action memorandum ,
(I) EnforcementDocujnen::
Administrative orders.
Consent deorees.
Affidavits.
Response to notice letters containing
rerevant factual Information.
(g) Index.
Several documents in the list above
require further explanation. First.
verified sampling data are included on
the list above. Data which have
undergone quality asmlrance/qua!Ity
control and are relied art must be
included in the recorø. Date which have
been re7ected as IflRccurate. or will
otherwise not be con.sidered orrejied
upon. need. not be included in the
record.
Second.. EPA is proposing in
3CtO.8i0(a)(1) that documents
supporting the determination of an
Imminent and substantial endan ment
be part of the ad strative record.
EPA and other Federal agennios have
the discretion to conduct assesBm to
deternune the ex nt of an ixinen and
substantial endangerment to the public
heaith or welfare or the envlronimcnt
doe to an actual or threatened release of
a ha.zaroous substance. if EPA chooses
to exercise its discretion to conduct such
an assessment. the aseesament shall be
includac ma the record, A determination
of an Imminent and substan a,j
endangerment m.s based on factual
information which forms a basis for the
selection of the response action. As
such. when a determination of an
imminent and substantial endangerment
is made, it is part of the record of the
selection of a response action. EP.
behev , that j clicia. rciaaw of th
determination that there is an lnlm.nent
and substantial endangerment in actions
unoer section 108 to en.force an order or
for uijunctive relief, therefore, is limited
to the administrative record.
Third. for a remedial actmcn record.
the list includes a summary of remedial
acLon alt.crnatives , This 3umTn5 will
orii he generated ma conJunction with
spec:al notice letters EPA may issge to
PRPs pursuant to section 122(e) of
CERCLA if the noiica letter is issued
çrior to the aiai abihty of an RIJFS
report ano ii appears necessary to
mr.fo—t ir.’erested persons of the lead
cg’ ’c’ s d.irecuon on remea. , j
± s context, sumnlar%
of :en ec,a: actton al ernatI%9s wnu’d be
tL . nLC .sS , ;:. ‘0 nz:
-c c...=__..::__ 0 . —.
51467
rem.dJak action. Tb. s rn y ni
remedial estio altexnattvej should he
Included In the s 4 mmistra y recui4
flu, so that the public and not Just the
PRPs have the information.
Finally, EPA is proposing tha
letters to PRPs be included in U i
adounjstrative record. EPA has v iJy
issued guidance on the notice letters
issued under section 123 e} of CLA .,
53 FR. 5 8 (February 23.1988). PRPi that
receive notice letters are expected to
become familiar with CERCLA. if they
have not already done so. In light of
notice letters and general principles of
administrativ, law, PRPs are on notice
that an aomznietrative record file will
be. or is, available for public inspection..
Section 300.91o(b} eddresees
documents which generally will not be
lnclusledj in the a nt1rnstxative recerd.
The type of docwnents referenced in
* 300.a1 b} are those which by
defizution are not appropriate far
inclusion in the adlnl!ustrauye record
because they do-not form a basis for the
selection of the response action. These
documents, are specified in the
regulation for purpose, of clarity.
Draft documents. internal memoranda,
and day-to-day note, of staff generally
will not be included in the -
administrative record. Examples of draft
documents that will be included in the
administrative record are those that
were considered or relied on in
action selection and never superseded
by a final document. and those the
contain material facts which do
appear in any other document is
in the administrative record file. mg
general rule, however, is t,hat. only final
documents will be included in the
administrative record.
Examples of internal memoranda and
cLay-to-day notes of staff which are not
rur iL 4 . .Lu ian in the
administrative record are documents
that express opinions or
recomm rt l iuons of staff to other staff
or management. or Internal pre-
decisicnaj documents that evaluate
alternative viewpoints,
Section 30(L81O(c) addresses
privileged documents. Examples o
privileged documents include, but are
riot limited to: documents subject to
attorney-client privilege and attorney
work product exclusion. documents
subject to deliberative process privilege.
and enforcement sensitive information.
Commcn law arid other privileges may
he assertea.
An asscri cr. of conimdent:a ,rt - c.f
ir’ornr’. ’n does rot ner szar m
‘i ne a o make suc:
. r..iioen- auormaL.jn wa cn
Federal Register I VoL 53 No.. Z45 / Wedne,’rcjav, December 2t 1988 / Proposed Rules
69
-------
51468 Federal Register / Vol. 53, No. 245 / Wednesday. December 21, 1988 / Proposed Rules
;ia a baiAs for the seicction c a
response action is not included in any
other document in the adnilnttrutsve
record. that information must be part of
the administrative record. Section
300.810(d) requires that the tnfa ticn.
to the extent feasible, must be
summarized in such a manner as to
make It disciosabie to the public and
placed in the administrative record file.
lilt is not feasible to summarize the
ir.formation in a releasable manner. e.g..
when the privilege applies directly to the
information which forms a basis for the
selection of the response action, such as
confidential business information, the
documents must be maintained by the
lead agency in a confidential portion of
the administrative record file. (These
documents may be reviewed in camera
in any subsequent udicial proceedl?.g)
The index to the admirustrative record
must hat the confidential or prwileged
document even though the document
v.ill not be available for public
inspectIon Whether or not the
information can be summarized in a
releasable manner the actual docuxner.t
containing confidential or pnvile ed
material must be included in the
confidential portion of the
administrative record file In l 1 ght of the
nature of the information in the RI! FS
and underlying documents and the fact
that contamination levels are generally
not privileged, this is not expected to
cccur frequently.
It should be noted that sect’on
104(e)(7) of C LA governs the extent
to which information may be claimed
confidential by persons required to
provide information under that section
Where confidential business
information is claimed EPA will
proceed according to regulations set
fo th in 40 CFR Part 2
4 Admznsst ctive reco. for a
remedial action (, 3OO 815) Section
300 815(a) provides tha. the documents
included in the administrative record
lie for a remedial action shall be
a ailable for public inspection at the
cotnniencement of the rcrrtedial
investigation phase Generally, the
comrnencemerll of the remedial
in estigotion phase occus when the
[ m dl RI/FS work plan is available The
re3’Jlations do not specify when the
remedial investigation ohase
commences because this may be a site’
specific determination EPA socits
ccirnrnertts or. whether the te ulatiori
should specif in greater detail %.hcn the
lead agency rnu t make the
a m:r.:strative record file for a remedi8l
action available for public tnspcctiot
Tr.e file at that time should contati the
dccjmertts v hich ‘. ‘ . l! forri a ba ’s icr
,nc sciccinn a the re pcrsi eci’r r
generated or received through the date
when the admisustrative record file lb
first niado available Documents
generally available when the RI/PS
work plan is approved include a
preliminary assessment report. site
inspection report. the RI/PS work plan.
underlying inspection reports. and the
community relations plan. From that
time until the ROD is signed (except as
provided in 300.825. described below)
documents which form the basis for the
selection of the remedial action. shall be
added as generated or received to the
adinirustrative record file.
The lead agency may establish a
system allowing for periodic review of
documents where there are questions as
to whether the documents must be
; rjiiii i1 ir the adminjatrativo ‘cord
file. Quarterly or monthly updates of the
administrative record file may be
appropriate in given situations and
allows trie lead agency to analyze data
end organize it in a manner that will be
meaningful to the public. In addition. it
may save the lead agency the time
involved in making daily or weekly
determinations on whether questionable
documents should be added to the
administrative record file Li there is no
question that a docwnertt belon;s in the
administrative record file. e g.. the RI1FS
report. the document should be placed in
the record file as soon as practicable
after its generation or receipt
EPA proposes in I 300 81 5(a) that the
lead agency publish a notice of
availability of the ad.ministratj e record
file The notice must be published in a
ma tot local newspaper of genera!
circulation as is required for the notice
of a’. ailability of the proposed plan (See
§ 300430 of today’s proposed rule) EPA
considered proposing that a nctice be
published in the Federal Register for
wider circulation, but rejected such a
requirement as unnecessary. EPA
solicits comments on whether a notice
of availability of the record or of
coramencerient of the public comment
pennd shc d be puc1ished in the
Federal Register EPA also considered
proposing that a Beparate notification of
known potentialiy responsible parties
be made Section 113(k)(211D1 of
CERCLA provides that the President
shall make reasonable efforts to identify
and flotify PRPs as early as possible
before selection of a response action
EPA wi!l be issuing notice letters to
PRPs ur.der section 122(e) of CERCL.A
early in the process in many situations
Gi en these early e io ’ts as well as the
notice in a loca t newspapc: EPA chose
riot to p oposc a cepara:r rctifi:ot’ori of
PP..Ps noTe
Section 32 ’.) 15(bj carities than
interested persons may subrnlt
comments for inclusion in the
administratwe record file during the
public comment period on the RI/PS and
proposed plan described in 1300.420(f)
of Subpart E. The lead agency need not.
however, respond to comments that
were submitted prior to the public
comment period on the proposed plan.
although in many instances. the lead
agency will either make appropriate
modifications to the response action or
respond in writing to those early
Comments.
A written response to significant
comments will be included in the
administrative record file. The lead
agency need not respond to any
comments received during the public
‘..itti the close of the
public comment period. Generally.
responses will be included in the
responsiveness summary. which is part
of tne ROD in responding to significant
comments, the lead agency need not
respond separately to each comment but
may combine comments by ub1ect or
other category in the response.
The public participation procedures
for a remedial action are set forth in
§ 300 430. Section 300.815(c) of Subpart I
requires that compliance with the
requirements of I 300430(f) be
documented for inclusion in the
adzruruatrative record file. The
requirements of I 300.430 ( 1) include
preparation of a proposed plan:
publication of a notice of availability
and brief analysis of the proposed plan.
plac ng a copy of the proposed plai in
the informat on repositaryt providing an
opportunity for the submission of
written or oral comments on the
proposed plan. R1/FS. and any waivers
to cleanup standards under section
121(d) (4) of RCLA providing an
opportunity for a public meeting on the
Ri/PS. proposed plan. and waivers to
cleanup standards: preparing a
transcript of public meetings held during
the public comment per’.o& making the
transcript available to the publitt
discussing significant changes to the
proposed plan: responding to significart
comments, and soliciting additional
public comment and providing for other
public participation procedures at the
letid agency’s discretion prior to the
adoption of the decision where new and
substantial issues have been raised It
:ll generally be the practice of the lead
agency that. .henever possible.
documents upon wbich the selection
decision is based w U be included in the
adzninistrat ’.e record file as soon as
possible after they are generated or
recc ed and no later than when tl’e
70
-------
demsior, dccu ,ent ic sir,°d This e
intended to encourage maximum public
participation in the deveic’pmexit o the
record.
Documents generated or received
after the selection is made do not
provide a basis for the de tm n aM thus
generally are not part of the
adrzunistrative record, except as
provided in 3cjo. , discussed below.
5. Adm,n,strat,y record Jot- a removal
action ( 3(h9.82O). Section 300.620
proposes requirements for
administrative records for removal
actions. It ii divided into two part;.
Paragraph (a) addresses “non-time-
criticaj” removal actions, I.e.. those for
which, based on the site evaluation, the
lead agency determines that a removal
action is appropriate and that there is a
planning period of at least six months
before on-site cleanup activities must be
initiated. Paragraph (b) addresses all
other removal actions
Explanations of regulatory
requirements and related issues which
are the same as those for remedial
actions will not be repeated here. Only
requirements and issues specific to
removal actions will be addressed.
Section 300 820(a)(1) provides that the
adrrunistrative record file for a non-time.
critical removal action shall be
available for public inspection when the
engineering evaluation/cost analysis
fEE/CA) report is made available for
public comment At that time, an
admirustrative record file shall be
established and made available to the
public and shall contain all documents
relevant to selection of the remot al
action generated up through that date
Documents generally available at that
time include sampling data, a
preliminary assessment report a site
inspection report, the EE!CA approval
memorandum, and the EE/CA, After the
EE/CA report is available and until the
Action Memorandum is signed (except
as provided in 300.825, discussed
below), documents relevant to the
selection of the removal action shall be
added to the administrative record file
as discussed in the remedial action
section of todays preamble.
The public participation procedures
for non-time-critical removal actions are
set forth in 300 415(n)(3) of Subpart E
of today’s proposed regulations. Section
300 820(a)(3) requires that compliance
with § 300 415(n)(3) (i) through (iii) be
docuinented for inclusion in the
administrative record. The reouirements
of { 300 415(n)(3) (i) through (ni) include
publication of a notice of availability
and brief description of the EE/CA.
making the EE/CA available to trie
pLiblic providing a reasonable
opportunit 3 not less man 30 da .5 f r
schmis ian of c’mm ts ii.fler the
comp1et on of the EE/Ck and
responding to s gnificaat conimer,ts
Section 300.820(b) provides different
procedures for tznie-criticaj, including
emergency, removal actions. As
explained earlier, section 113(k)(z)(A) of
CERCL.A requires procedures for the
“appropriate” participation of interested
persons in the development of the
administrative record for removal
actions, Appropriate participation is
significantly different in situations
where an action must be taken on short
notice. Where the exigencies of the
situation demand that cleanup be
initiated and often completed within
short timeframes, public comment
periods may delay expeditious response
to the errergency. In view of
Congressional intent that public
particrnation reqwremenis no udmper
or delay emergency removal actions,
EPA has considered many options for
the appropriate level of public
participation EPA must balance the
benefits of public involvement in
advance of the selection of a removal
action against the need to proceed
quickl3 in emergency situations. EPA
believes that the requirements proposed
today strike the correct balance,
EPA has had to consider two
questions in determizung the level of
partic :pation for time-critical removals.
First, at what point should the
administrative record file be made
available to the public, and second.
should there be a formal public
comment period on the record’ EPA is
proposing in { 300 820(b) (i) that for all
tune-critical removals (including
erTergencics). the record file should be
made available to the public no later
than 60 days after initiation of on-site
removal activity. EPA is choosing to
make the recard available at this time
recognizing that there will be many
situations where immediate action must
be undertaken to remove threats to
human health and.the environment
before the adxnii ’strative record file can
be assembled and placed in a public
docket for inspection. In reviewing
tvp.cal removaL actions. EPA found that
generally containment or stabilization
(i.e.. those activities taken to retard,
reduce or prevent the spread of a
release or tnreat of release and
eliminate an immediate threat) at
removal sites often are completed
within 60 days Clearly, where
circumstances warrant. EPA should
focus on addressing the threat at S Site,
and attend to administrative procedures
later. The proposal meets both EPA’s
charge to protect human health and the
en u’onmerit and the requirement to
p-os ide fo appropriate public
51469
part ic iDation. Br’ requiring that the
administrative record file be made
available to the public no later than 60
days after initiation of removal
activities. Making the record avafla i
in’.. olves: assembling the adminlstra
record file. Identifying, publicly
accessible location for the record file at
or near the site, finding an acceptable
newspaper and placing an
advertisement In It to notify the public.
and preparing for receipt and evaluation
of comments, The prop oeed requirement
that the file be available “no later than”
60 days does not preclude making the
record file available at an earlier time, if
Circumstances allow.
EPA Is also proposing In
300.820(b)(2) that the lead agency
shall, as appropriate, provide a 30-day
public comment period to begin c t! a
time the administrative record is made
available to the public. Generally, when
the removal action his not been
completed., a public comment period will
be considered appropriate at the time
the administrative record file is made
available to the public. EPA requests
comment on whether public comment
should be solicited on activities that
have already been completed at the time
the record is made available.
EPA has also considered other public
participation procedures for time-critical
removals They include:
i.Requirtng that the record file be
made available immediately upon
issuing the Action Memorandum, an
delaying the initiation of cleanup unt
after public comment is solicited and
responded to. This would allow
maximum pubhc participation in
selection of the removal, but It is not
consistent with the need to provide
prompt response for protection of
human health and the environment at
the site. Such an approach would also
be inconsistent with the legislative
history which states that administrative
procedures established under section
113 should not hamper emergency
removal actions.
ii Requir .ng that the record be made
available “promptly” after issuing the
Action Memorandum, and then
soliciting public comment “as time
allows.” EPA considered this as a way
of addressing the individual nature of
remo%als, the different timeframes that
may be involved, and the need to
provide meaningful opporturuties for
public comment in cases where time
allows. As discussed earlier, EPA
believes resources should first be
directed toward mitigating threats at a
time-critical removal site and that 60
days of on-site work will allow this
Hots ever EPA is concerned that e
Fede 1R , t& / Vol. 53. No. 245 / Wednesday, December 21. 1988 / Proposed Rules
71
-------
•fl 7O Federal Register I VoL 53. No. 245 I Wednesday. December 21. 1988 / Proposed Rules
standa ,-d of’ prompt” c a: ab : ’ :s too
vague and would oe a source of
controversy at each site. Thus. EPA
believes an objective standard is
preferable. Similarly. while providing for
public comment “as time allows’
perm:ts fle’ubility in the requirements,
such a rule would require the exercise of
judgment and would allow disputes over
compliance with this requirement in
individual cases. In addition, as
discussed above, it is rare that there is
sufficient time before beginning a time-
critical action to solicit, consider and
respond to comments,
in. Delaying the availability of the
record until 120 days after beginning
cleanup and then soliciting public
Comment. This approach parallels the
Community relations requirements
(within 120 days of cleanup for ongoing
ruspuriseb. ii Cuiiunwuty Relations Plan
must be prepared and an information
repository must be made available, see
300 415(n)) This would increase the
number of sites at which cleanup has
been comoleted before the public is
notified EPA believes that the increased
cleanup time provided under this option
generall does not justify the delay LI
public involvement concerning response
selection
iv. Requ ring that the record file be
made availa .ie after perfnrimrig
Containment cr stah ization at a site
where d .sposai needed (over 25
perccnt of removajs do not require
disposal) and delaying disposal until
ublic comment co..ild be solicited.
a1uated and responded to. This
approach attempts to balance the need
for puolic comment with the urgency of
the response, limiting the response
se!ection unaertaken without benefit of
p iblic input to tnose aspects of
removals which must be conducted
swiftly in order to protect public health
and the enviror ment
There are two major difficulties with
this approach The first concerns
prcctsely defining “containment” and
stabilization” in this context and
pro iding indicators to mark their
completion Wr.ile it Is poss.ble. based
on experier.ce. to say that the
containment or stabilization phase of a
removal action is generally completed
within days of irutiating work, It is
much more difficult to determine such
completion on a site-specific bes:s
The second difficulty w.th such a rule
is that it f iis to take into account
several important factors which ria
make such at’. approach infcas ble in
man% cases Specifica l , delay of
disposal acti%ities may (a) Create
cditional urinccessar risks to hirran
hcahh arid ti-e e’i ironrnent and (b)
rcs_t in nee:iess expeio ’ures of time
and m’-ncy SIte ccridlt icris. weathe-
conditions, location, public accessibility,
availabilit . of approved disposal
facilities, availability of treatment
facilities arid the effect of the delay on
the statutory time and money linutations
on removals aie only some of the factors
to be considered before a site-by-site
determination could be made as to
whether or not It was practicable to
solicit public comment.
v. Making the record publicly
available as in the proposal (i.e., no later
than 60 days after initiation of cleanup).
but not formally soliciting any public
comment Given the need for quick
action on time-critical removals, that
they are generally limIted in scope. end
few cleanup options are feasible, this
may be an appropriate approach. This
approach, however, would not provide
the public with an opportunity for
meaningful participation where it might
be appropriate in specific removal
situations,
EPA solicits comments on the
proposed and other considered
approaches to public participation on
removal actions
6 Adding documents after selection of
response action ( 300 825). New
documents may be added to the record
file after the decision document is
signed only as provided in 300.825.
Documents generated or recetved after
the decision document (e.g. Action
Memorandum or ROD) is signed
generally will be kept in a post-decision
document file unless and until a
determination is made that the
document(s) should be placed in the
administrative record file. pursuant to
300825
Section 300 825(a) provides that the
lead agency may add post-decision
documents to the ad.rnirustratjve record
fi’e in two situations The first situation
occurs ‘when the decision document
does not address or reserves a portion
of the response action decision. In such
cases, the lead agency i1) continue to
add to the adminis atjve record file
documents which form the basis for that
portion of the de:isior. not addressed or
reserved b the aecisicn document
Vricre appropriate, the lead agency
shall provide p .bhc notice that the
adn-,:nistrat.ve record file for this
portion of the decision contu-.ues to be
avaiieb 1 e for public inspection and
comment It should be noted that this
exception applies to R3Ds that address
an operable urut but leave a portion of
the decision on that operable unit open
The second siuatjon arises when an
explanation of s’g-iif’cant diffeiences
pro ided for in CO 433(:1 or an
amended decisicr document is required
An e planaiion o sig -iicant d fierences
is issued when, after adopton of a final
remedial action plan, the remedial
action or enforcement action taxen, or
the settlement or consent decree entered
into, significantly differs in scope.
performance or cost from the final plan,
The record shall include an explanation
of significant differences and all
documents that form the basis for the
decision to modify the response
selection decision, The lead agency shall
publish a notice of availability of these
documents, as required by secton 117 of
CERCI..A and as proposed in
* 300.435(c) If, in addition, an amended
decision document is required, the
record shall include the amended
document and all documents that form
the basis for the amended decision, The
public participation procedures outlined
in Subpart E on explanations of
significant differences and amendments
to decision documents shall apply.
Section 300.825(b) provides that the
lead agency may, in its discretion, hold
additional public comment periods or
extend the time for submission of public
comment after the decision document is
signed. and may limit such comment to
issues for which the lead agen has
requested additional comment. This is
intended to allow the lead agency to
solicit additional comment on the
response action whenever it determinos
that new information or other
circumstances warrant additional input
Section 300.825(c) governs public
comments received after the close of the
comment period. Under this section, the
lead agency will need to consider such
comments only 11 they could not have
been submitted during the comment
period and provide critical. new
information relevant to the response
selection which substantially supports
the need to significantly alter the
response action, EPA is proposing the
standard set out in 300.825(c) as
providing the best balance between
EPAs desire to remain open to critical.
new information on the effectiveness of
a selected response and the need to
make final decisions in order to allow
expeditious implementation of the
response action EPA solicits comment
on this approach.
D Compliance With This Subpart
As provided in section 113(j)(4) of
CLRCLA. in reviewing alleged
procedural errors related to the
adniirust.rative record, a court may
disallow costs or damages only if the
errors were so serious and re1aie to
matters of such central relevance to the
action that the action would have been
siruficantiy changed had such errors
no: been made
-------
APPENDIX ii SUBPART I OF THE PROPOSED NCP
(C) Section 300.400(c)(lJ. (4). (5). and
(7) (on deteri iirung the need for a Fund.
financed action). (e) (on pesmit
requirements). and (g) (an Identification
of ARARe);
(0) Section 300.405(b). (c). a d (dilon
reports of releases to the NRC):
(E) Section 300.410 (on removal site
evaluation) except paragrapha (e)(5) and
(6) and the reference to listing releases
in CERCUS in (h):
(F) Section 300 415 (on removal
actions) except paragraphs (a)(2).
(b)(2)(vu). (b)(4). and (g);
(G) Section 300 420 (on remedial site
evaluation)
(H) Section 300.430 (on RI/PS and
selection of remedy) except paragraph
(f)(3)(iv)(F), and
(1) Section 300 435 (on RD(RA and
operation and maintenance).
(ii) In addition. other persons
undertaking response actions sha!l
provide an opportunity for public
comment concerning the selection of the
response action. A response action shall
not be considered consistent v -ith the
NCP unless
(A) The perscn taking the recpor.se
action complies with the following NCP
provisions regarding public
participation. with the exception of
adznirustrative record and information
repository requirements stated therein.
(1) Section 300 155 on public
information and coinmur.ity relations).
(2) Section 300.415(n) (on cornmu.ruty
relations during removal actionsi.
(3) Section 300 430 (c) (on commuiuty
relations during R]/F5) except
paragraph (5):
(4) Section 300.430(f)(1). (2). and (5)
(on cornmuzuty relations during
selection of remedy). and
(5) Section 300 435(c) (on community
relations during RD/RA and operation
and mairtPnanrei nr
(B) The person taking the resconse
action complies with State or local
requirements which provide a
substantially equivalent opportunity for
public involvement in the choice of
remedy
(iii) When selecting the appropna’e
remedial action, any other person ehall
as aopropriate. consider the methods of
;emeoylng releases listed in Appendix D
of this Part
( : .) Except ior actions taken pursuant
to CERCLA sections 104 or 106 or
response actions for which
reimbursomerit from the Fund wail be
sough’ an action to be taken b :
lead a enc in § 300 415 300 &30 ard
300 435 may be taKen b the person
car cii irie es ocSe ac o ’
let ,eL:icn 111 (0 112) C,c;,c
p raz ns ‘d) .) .i:’ ii i) c ‘is
section. may ha able to receive
reimbursement of response costs by
means of a claim against the Fund. The
categories of persons excluded from
pursuing this claims authority are:
(1) Federal government:
(ii) State governments, and their
political subdivisions, unless they are
potentially responsible parties covered
by an order or consent decree pursuant
to section 122 of CLA and
(iu) Persons operating under a
procurement contract or an assistance
agreement with the United States with
respect to matters covered by that
contract or assistance agreement ..inless
specifically provided ‘herein.
(2) In order to be rethibursed by the
Fund. an eligible person must notify the
AdmuusU ator of EPA or desigitee prior
to taking a response action and receive
prior approval. i.e.. ‘preauthonzation.’
for such action.
(3) Preauthon.zation is EPA ’s prior
approval to subriut a claim against the
Fund for necessary response costs
incurred as a result of carrying out the
NC? All applications for
preauthorizauon will be reviewed to
determine whether the request shouZ
receive priority for funding EPA. in itS
discretion. mn ’ grant preauthorizanon
of a claim. Preauthorization wall be
considered only for
(i) Removal actions pursuant to
300415:
(u) CERCLA section 104(b) activities.
(iu) Remedial actions at National
Priorities List sites pursuant to * 300.435
(41 To receive EPA’s prior approval.
the eligible person must:
(i) Demonstrate technical and other
capabilities to respond safely and
effectively to releases of hazardous -
substances. pollutants. or contaml.nants:
and
(ul Establish that the action will .c
consistent v ith the NCP in accordance
with the elements set forth in
paragraph (c)(3) (i). (ii ), arid (tai) of th.is
section
(5) EPA will grant preauthorizatton to
a claim by a party it determanas to be
potentially liable under section 107 of
CERCLA cniv in accordance with an
oriler issued pursi.iant to section .106 of
CERCLA. or a settlement with the
Federal overnrnent in accordance with
section 12 of CERCLA.
(6) Preauthorizotion does not establish
an er.torceable ccntractiial relationship
between EPA and the claimant.
(7) Preau:horization represents EPA s
c m itmer.t ‘)‘a’ if urica are
appropriated for resoor.3e acuor.s. the
- :c s zic’
rrrrd rice ‘vi’ ’ ‘e ree’Jt io ’z ’ofl
e3sorlaO1e zi’u-i neCeSsat
reimbursement wiU be mad. from the
Superfund. up to the maiamum amount
provided in the preauthonzation
decieinn document.
(8) For a claim to be awarded undet
section lii of CERCLA. EPA must
certify that the coats were necessary
and consistent with the preauthonzatlon
decision document
(e) Section 106(b) petthor . Subject to
conda Lone specified in CLA section
1C6 (b). any person who has complied
with an oroer issued after October 10.
1968 pursuant to section 106(a) of
CERCLA. may seek reimbursement for
response costs incurred in complying
with that order unless the person ha
waived that right.
(I) Section 223 rejnibursement to local
governments. Any general purpose unit
of local go”erriment or a political
subdivision that a affected by a release
may receive reunbi.irseinent for the costs
of temporary emergency measures
necessary to prevent or mitigate injury
to human health or the environment
subiect to the conOitions set forth in 40
CFR Part 310. Such reimbursement may
not exceed 325.000 for a single response.
(g) Re/ease from babiiily.
lniplementatrnn of response measures
by potentially responsible parties or by
any other person does not release those
parties from liability under section
107(a) of CERCLA. except as provided in
a settlement under section 122 of
CERCLA or a Federal court udginent.
Subpart l—Admlrjstrative Record for
SI.ction of Response ActIon
300.500 Eatablisiinwnt of an
.dmintst’attvs record.
(a) Genercl requirement. The lead
agency shall establish an admuustratave
record that contains the documents that
form the basis for the selection of a
response action. The lead agency shall
compile and ma ntam the administrative
record an accordance with this subpart.
(bJ Adniznistra jve records for Federcl
foci/flies. (1) If a Federal agency other
than EPA is the lead agency for a
Federal facility, the [ ‘ederal ager.cy shall
compile and maintaui the administrative
record for the selection of the response
action at that facility in accordance with
this subpart. EPA may furnish
documents which the Federal agency
shall place in the adolirnatrative record
file to ensure that the administrative
record :ncludes all documents that form
the basis for the se 1 ecticn of the
rewOflEa action
E -. or the U S Coast GL3rO
rnrr’ii ard majn’atn the adnir’ aTive
i .-fl 1 r,r i U u flL’
Fe erai ac.lir”
51 14 Federal Resister J Vol. 32. No. 243 / Wednesday. December 21. 1988 / Rules
73
-------
Federal Register / Vol. 3. No. 245 / Wednesday. December 21. 1S88/Prooosed Rules
51515
(3)1! EPA is involved In the selection
of the response action at a Federal
facility on the NPL. the Federal agency
acting u the lead agency shall provide
EPA with a copy of the index of
documents cicludod in the
administrative record file, the Rl/FS
workplan, the Rl/FS rerebe& toe public
comment, the proposed plan, any publt:
comments received on the PJ/FS and
proposed plan, and any other documents
EPA may request on a case-by-case
basis
(c) Adjnin,stroL,ve record for Slate-
lead .ues. If a State is the lead agency
or a site, the State shall compile ar.d
maintain the administrative record for
the seiection of the response action at
that site in accordance with this
subpart. EPA may require the State t.
place add,itiona.l documents in the
awni.rustrative record file to ensure that
the admimstrattve record includes all
documents which form the basis for the
selection of the response action The
State shall provide EPA with a copy of
the index cf documents included in the
oc.ministxati’.e record file, the Rl/FS
workplan. the RJ/FS released f r public
comment, the proposed plan. any public
Comments received on the Rl/FS and
proposed plan, and any other documents
EPA may request on a case-by-case
basis
(d) App ’icebility This subpart applies
to all response act,.ons taxen under
section 104 of C RCLA or sought,
secured, or orderea adnitntst.rauvely or
judicially under section 106 of CERCLA.
as foilowa,
(1) Remedial actions where the
rerned.idl investigation commenced after
the promwgauon of these reguiauons.
ar.a
(2) Removal actions ‘nere the action
memorandum is si iad after the
p -- rf t 1 . be ac L cr,s
(e) For those response actions not
inc uced in paragraph (d) of this section,
Ire tead agency shall comply witn this
subpart to the extent pracicab e.
* 200.805 Location Of the adm1nl’rv
record
The lead avencv shall esta ’lish a
doclet at an office of the lead agency or
other cer.u’al locato at which
documents included in the
a n:i :n’ve record file shall be
located a-id a copy of the coc ents
:nc dcd in the ac .mlnistrative re:crd
f:lo shail also c e mane a ai aole for
puoli .ri -oecricn a’ or near the site a’
issue exceot as cro%-’deo beiow’
(a S. nIp..rIg anc test. rig cata. qua :tv
1: ‘I ..
cocurnentation ace cnaji 01 CusLOc
ste at Issue or at the c rrai loc3tion
provided that the index te the
adminiatrative record file Indicate. the
location and availability of this
informstlcn ,
(b) Guidance documents not
generated specifically for the site at
issue need not be located at or near the
site at issue, provided that they are
maintained at the central location and
the index to the adynir.istrative record
file indicates the location and
availability of these goidance
documents
(c) Publicly available technical
literature not penerated for the site at
issue. such as engineering textbooks.
articles from technical journals, and
tox.icolceic,il profiles, need not be
loccted a: or near the site at issue or at
the central location, provided that the
literature is listed in the index to the
a&nimstrative record file or the
literature is cited in a docwnerrt in the
record.
(d) Documents included in the
con.fidenual portton of the
ad.-rnnisti’ative record file shall be
located only in the central location
(e) The aanulustrauve record for a
removal action where the relea e or
thre.at of release requires that on-site
removal activities be initiated within
hours of the lead agency’s determination
that a removal is appropriate and on.
site removal activitie, cease within 30
days of initiation, need be available for
publ c inspection only at the central
location
300 810 Contents of tha administrative
record,
(a) Contents The administrative
record file for selection of a response
action vpicall . but cot in at] cases wi.i
contain t1 e followmg types of
documents
(1) Dcc’uments contatnirQ factual
i.fcrrnatton. data, and analysts of the
factual ifarmaticn and data that may
form a bans for the selection of the
respcr,se action Such documents may
include verfied sampling data qualit
cc rol and quahtv assurance
doc’urnentauon. chain of custa&, forms.
si’e .ist’Ection reports. prelimInary
as!essn’e it and site evaluation reports.
A’ JR health assessment documents
aLpocrttn2 the lead a et cy s
de’e-’tiriauon of m’uninent end
ii 5s :anrial endangerment. pubiic health
e ahiauons ond technical ana
ergineermg evaluations In addition, for
rer’eclai 8CtiOflS such documents ma
inc . ae approved work pians State
doc_—e-i:at.on of apolicabie or relevant
c r i::”;;r a:e ec,:re’ner’s .‘ ‘ !
RIIS -
l..e”ature e’ic site specific poiic
memoranda that may form a basis for
the selection of the response action.
Such document, may include guidance
on conducting remedial investigations
and feuibillty studies, guidance on
determimiig applicable or relevant and
appropriate requirements, guidance on
risk/exposure assessments. engineering
handbooks, articles from technical
journals, memoranda on the application
of a speafic regulation to a site. and
memoranda on off-site disposal
capacity:
(3) Documents received. published, or
made available to the public under
300.815 for remedial actions, or
* 300.820 for removal actions. Such
documents may include notice of
availability of the adimmstrauve record
me. community relations plan. proposed
plan for remedial action, notices of
public comment periud.s. public
comments and new information received
by the lead agency, and responses to
significant comments.
(4j Decision documents. Such
documents may include action
memoranda and records of decision,
(5) En.forcement orders. Such
documents may include administrative
orders and consent decrees. and
(6) An index of the documents
included in the aduwustrauve record
file
(b) Documents not z Juded in the
administrative record The lead agency
is not required to include documents in
the administrative record file which do
not form a bas 1 s for the selection of the
response action. Such d uments
include but are not lmiited to draft
documents, internal memoranda, and
day-:o-4ay notes of staff tuiless such
docum ts ccntain information that
forms the basis of selection of the
response action and the information is
nct inchided in any other document in
the administrative record file
(c) Prt vii reed do-jmenzs Privileged
documents snail not be included in the
record file except as provided in
para ’:ph (d) of t tis scction or where
such orivilege is waived Pri ileged
documents include but are not limited to
documents subject to the attor’iey-client.
atorney wotk product deliberati’ e
process or other applicable privilege
(d l Cop fidenual file If information
wh cl’, forms the basis for the se’ection
of a response action is mdtded only ci
a document contaming confidential or
pr. ileged ir..formarion and :s not
otnerwise availauie to the oublic the
Lniormauon to the extent feasible ndll
be sum:nan:ed ‘ !uc ’ a w v 2s o
maKe it cisciosa Die aria p.acec in .he
: 1:, :i’!!c’I.c po—’c— c” ‘ e
ac -r1nisr at1i’e recore tue T.i
-------
Federal Repister/Vol. 53. No. 245/Wednesday, December 21. 1968 / Proposed Rules
51516
or prir ie ed document
sh . ll be plaGec ut the coalidentiat
porUO l : t .c adrr.uustiative record file
If information, such as confidential
. usu;ess information, cannot be
summarized in a disciosable maz r.
the uilormation shall be placed onT , th
the confidential portion of the
adrninistratwe record file. All
documents contained in the confidential
portion of the administrative record file
shall be Listed in the index to the file
§ 300.315 Adm mstratIve record fora
remedial ac on.
(a) The administrative record file for
the selection of a remedial action shall
be made available for public inspection
at the commencement of the remedial
investigation phase At such time the
lead agency shall publish in a mator
local newspaper c! e ara c n a
notice of the availabilit) of the files
eontainrng the adxnirustrative record
(b) The lead agency shall provide a
public comment period as specified in
§ 300 430 (f) so that interested persons
ma ’ submit comments cri the selection
of the remedial action for inclusion ui
the adrninistrative record file, The lead
agency is not required to respond to
comments that were submitted prior to
the public comment period A written
response to significant comments
submitted during the public comment
period shall be included ir. the
admin’slrative record file
(c) The lead agency shall comply with
he public participation procedures
quired in § 300 430 (f) arid shall
icument such compliance it ’. the
administrative record
(dl Documer.ts generated or received
after the record of aecision is signed
shall be added to the administrative
record file only as provtoed in § 300 825
300.820 Admlriuetraliv• record for s
removal iction.
(a) If. based on the site eve,luaton. the
lead agenc% determines that a removal
Rctioc is appropriate and that a planning
pcriod of at least six months exists
before on-site removal activities must be
initiated
1) The adriurustrative record Me shall
made a ailable for public inspection
wnen the enqineenng evaluauon/cost
analysis (EE,’CA) is niade available for
public comment. At such ticie, the lead
agency snail publish in a major IOCGI
newspaper of general cu-cijiatico a
notic? of the a’. ailabiliry of tne flie
contaima the ad.minis rane record
() The lead agcnc snail prc i de a
p.iliuic corrtn ’iem period as specified t c
§ 1OtJ 415 so that .nterested persons ma
t.brrni comrrenis on the selection o’ ne
r -no a’ ac’. o ’ !cr i ciusiori i.n me
c: ”ri ;vc record fii Tb lead
agency is not required to respond to
comments the’ were subrntttee prior to
the public comment period. A written
response to *igntficant comments
suomitted during the public comment
period shall be included in the
adxnu’ustrab e record file.
(3) The lead agency shall compty with
the public partic pation procedures of
§ 300 415(n) and shall document
compliance with § 300 415(n)(3) ( I)
thi ’oug’n (iii) in the administrative record
file.
(4) Documents generated or received
after the action memorandum i.e signed
shall be added to the admirustrative
record Die only as provided in * 300.825.
(bj For all removal actions not
included in paragraph (a) of thia section’
(1) Documents included in the
ewruuisuative record file shall be made
available for public inspection no later
than 60 days after initiation of on-site
remo al activity At such time. the lead
agency shall publish in a ma or local
newspaper of general circulation a
notice of availability of the file
containing the administrative record.
(2) The lead agency shall, as
appropriate. provide a public comment
period of not less than 30 days beginrung
at the time the administrative record is
made available to the public. The lead
agency is not required to respond to
comments that were submitted prior to
the public comment period. A written
response to significant comments
submitted during the public comment
period shall be included in the
admirusti ative record file
(3) Documents generated or received
after the action memorandum is signed
snail be added to the administrative
record flie only as provided in § 300 825
§ 300.625 Record , quirement after
OICi*Ofl document IS si fled.
(a) The lead agency ma add
documents to the administrauve record
file after the decision dc ument
selecting tie response ectior. has been
signed if
(I) The docu.men s coni,eri a portion
of a response action aecisiori that the
decision document aces not address or
ieserves to be decided at a later date. or
(2) An e planauor of sigruficant
differences required by § ‘300 435tc1. or
an amer.ded accicion document is
issued. in which case. the explanation of
sigruficant differences or amended
cecision aocu’nlen’ and all documents
that iorm t.ne oasis for tile decision to
rnodif> the response action snail be
ar’ded to the administrative record file
bJ The tead agenc ciac’ hold
dd lticna pubiic comment periods o
e .tend the ‘.me Ic- me ‘ s’on of
i .ammcn ,itc: dL..ia lor,
document has been signed on any issues
concerning , , lection of the response
action. Such comment she’d he limited to
the issues for which the lead agency has
requested additional comment All
additional comments submitted during
such comment periods that are
responsive to the request. and any
response to these comments . shall be
placed in the administrative record file.
(c) The lead agency is reqnired to
consider comments submitted by
interested persons after the close of the
public comment period only to the
extent that the comments contain
significant information not contained
elsewhere in the administrative record
which could not have been submitted
during the public comment period and
luch substantially cupport the need to
signiflcantiy alter the response action.
All such comments and any responses
thereto shall be pLaced in the
administrative record file
Subpart J—Uu of Dispsrsants and
Other CPtemica s
300 00 G.norsL
(a Section 311(c)(2)(G) of the Clean
Water Act requires that EPA prepare a
schedule of dispersants and other
chemicals. if any. that may be used in
carrying out the NC? This subpart
makes provisions for such a schedule
(b) This subpart applies to the
navigable waters of the United States
and adtoizung shorelines, the waters of
the contiguous zone. and the high seas
beyond the contiguous zone in
connection with activities under the
Outer Continental Shelf Lands Act
act.vities under the Decpwater Port Act
of 1974. or activities that may affect
natural resources belonging to.
apperlainirig to. or wider the exclusive
management authority of the United
States. including resources under the
Magnuson Fishery Conservation end
Management Act of 1975.
(c} This subpart applies to the use of
any chemical agents or other additives
as def.ned in Subpart A of this Part that
mey be used to remove or control oil
discharges
§ 300.205 NCP PToduCl SChedule.
(a) 01) Dischal7eS (1) EPA ihall
maintain a schedule of dispersants and
other chemical or biological products
that may he authorized for use on oil
discharges in accordance with tue
piocedures set forth in * 300910 This
schedule. called the NCP Product
Scnedule may be obtained &am the
Errieroency Response Di”sion (OS-2 ’i0
I i Erwronrflental Protection Agen :
1)
-------
• NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 900313-090745-PLC —001—001
page 1 set 9 with 1 of 7 items
Item 7
ACCESSION NUMBER : 3265
DOCUMENT NUMBER : RCRA;PC;9940.4
DOCUMENT CATEGORY : Policy
STATUS : Final
DATE ISSUED : 07/06/89
TITLE : Guidance on Administrative Records for RCRA Section 3008(h) Actions
OSWER Directive No. 9940.4
ISSUING OFFICE Office of Waste Programs Enforcement. Office of Enforcement and Compliance Monitoring
ADDRESSEE Hazardous Waste Division Directors. Regions I - X; Regional Counsels, Regions I - X
OMITTED TEXT Appendix A - 53 Fed. Peg. 12256; Appendix B — Model Public Notice of Record Availability
LAW/SECTION : RCRA Section 3005,3007,3008,3010,3 0 1370 03; CEPCLA Section 103,104; CAA; CWA
REGULATION : 4OCFR2,2.305,22,24,24.01,.O3
ACTIVE/EXPIRED : Active
RELEASABLE : Yes
DOCUMENT LENGTH : 55 Screens
OSWER DIRECTIVE t 9940.4
MEMORANDUM JUL 6. 1989
SUBJECT: Guidance on Administrative Records for RCPA Section 3008(h)
Ac tions
FROM: Is! Bruce M. Diamond, Director
Office of Waste Programs Enforcement
/5/ Glenn L. Unterberger, Associate Enforcement Counsel for
Hazardous Waste
Office of Enforcement and Compliance Monitoring
TO: Hazardous Waste Division Directors, Regions I-X
Regional Counsels, Regions I-X
Attached is guidance on compiling administrative records for PCPA
Section 3008(h) corrective action orders. The 40 CFR Part 24 hearing
procedures for Section 3008(h) unilateral orders make compiling good
administrative records key to successfully prosecuting these cases. As we
said when thxs guidance was issued in draft for your comment, however, many
of the underlying concepts for compiling records are not limited in
application to Section 3008(h) administrative records. This guidance can,
therefore, assist in the preparation of records compiled under other
authorities.
We would like to thank those of you who commented and offered
-------
* NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 900 313—090745—pLc —001—001
page 2 set 9 with 1 of 7 items
suggestions on the draft. We believe we addressed them all. In addition,
we have modified the guidance to answer many of the questions that are being
asked at the workshop on Section 3008(h) administrative records and hearing
procedures that is traveling to all the Regions. So far, this workshop has
been given in Regions II, III, IV, IX and VIII and will soon be given in
Regions V and X and Headquarters.
If you have comments or questions concerning this guidance or the
workshop, please contact Pick Colbert, OWPE, at (FTS) 475-9847.
Attachments
9940.4
Guidance on Administrative Records for
RCRA Section 3008(h) Actions
9940.4
EXCLUSIVE USE OF THIS DOCUMENT
This document is intended solely for the guidance of PCPA compliance
personnel employed by or representing the U.S. Environmental Protection
Agency. It is not intended and does not constitute rule—making by the
Agency, and may not be relied upon to create a right or benefit, substantive
or procedural, enforceable at law or in equity, by any person. The Agency
may take any action at variance with the policies or procedures in this
document, or which are not In compliance with internal office procedures
that may be adopted pursuant to it.
9940.4
Table of Contents
I. Scope of Guidance 1
II. Purpose of the Administrative Record 2
A. Part 24 Hearing Requirements for Unilateral Orders and
Judicial Review 2
B. Public Participation. Oversight, Improved Decisionmaking
and Quality Orders 4
III. Contents of the record 4
A. General
B. Document Sources 6
-------
NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’
Order number 900313-090745-PLC —001—001
page 3 set 9 with 1 of 7 items
C. Guidances and Directives 10
0. Legal Sources 10
E Technxcal Sources 10
F. Sampling Data 11
O CERCLA Sources 11
H. State Sources 11
I. Information Not Included in the Record 12
IV. Compiling the Record 14
A. When 14
B. Location 16
C. Organization 16
D. Index 17
V. Maintaining the Record 18
A. Public and Respondent Access 18
B. How Long Available 18
C. Notice of Availability 19
D. Controlling the Record 19
E. Document Copying 20
9940.4
Appendix A: Federal Register Notice for 40 CFR Part 24 Final Rule
Appendix B: Model Public Notice of Record Availability
9940.4
I Scope of Guidance
This guidance applies to administrative records compiled for
administrative orders for corrective action issued pursuant to Section
3008(h) of RCRA Specifically, it covers administrative records for
unilateral Section 3008(h) orders subject to 40 CFR Part 24 hearing
-------
NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’
Order number 900313-090745—PLC —001-001
page 4 set 9 with 1 of 7 items
procedures ( reprinted in Appendix A ) and to Section 3008(h) consent
orders. This guidance does not address administrative records for
unilateral Section 3008(h) orders subject to 40 CFR Part 22 hearing
procedures. 1/
1/ 40 CFR Part 22 governs administrative hearings for unilateral orders
issued under RCRA Section 3008(h) authority if the orders contain RCRA
Section 3008(a) claims, include a suspension or revocation of
authorization to operate under PCPA Section 3005(e) or seek penalties
under RCPA Section 3008(h) for non-complianc, with a Section 3008(h)
order. 40 CFR Part 24 governs unilateral orders C called “initial
orders’S in Part 24 ) not subject to Part 22. ( 40 CFP Section 24.01.
This guidance focuses on the responsibilities of PCRA enforcement
personnel. The extent of those responsibilities depends on whether an
administrative record is for consent order or for a unilateral order
subject to Part 24 ) . In accordance with Part 24 requirements for
unilateral orders, enforcement personnel muet compile an initial
administrative record and deliver it to the Regional hearing clerk by the
date the unilateral order is served on the respondent. During the Part 24
process the hearing clerk is responsible for maintaining the record. 2/
2/ 40 CFR Section 24.03 requires the EPA office issuing a unilateral
Section 3008(h) order to deliver the order and administrative record to
the “Clerk designated by the Regional Administrator.” This will
generally, if not always, be the Regional hearing clerk. The hearing
clerk is responsible for maintaining the record and docket for the Part
24 proceeding. In some Regions, it may be extremely difficult or
impossible for the hearing clerk physically to receive, hold and
maintain the record and the clerk may require the assistance of the
office issuing the order in fulfilling these duties under Part 24.
Therefore, before issuing n order, Regional enforcement personnel
should make arrangements with the hearing clerk for the delivery and
maintenance of the record.
Consent orders are not subject to the Part 24 process. Administrative
records for these orders are not, therefore, required to be delivered to and
maintained by the hearing clerk.
The administrative record can be a component in a public involvement
strategy for a facility subject to a Section 3008(h) order.
—1—
9940.4
This guidance includes some discussion of RCRA public involvement
requirements and strategies. For more information on public involvement,
this guidance should be read in conjunction with “Guidance for Public
Involvement in RCPA Section 3008(h) Actions,” OSWER Directive No. 9901.3,
-------
• NOTE THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 900313-090745-PLC —001-001
page 5 set 9 with I of 7 items
May 5, 1987, and Guidance on Public Involvement in the RCRA Permitting
Program, OSWER Directive No. 9500.00-lA, January 1986.
II. Purposes of the Administrative Record
Fulfill Part 24 hearing requirements
* Form basis of judicial review
• Facilitate public participation
Assist oversight
* Improve decisionmakjng and quality of orders
A. Part 24 Hearing Requirements for Unilateral Orders and Judicial Review
An administrative record is the compilation of information upon which an
administrative decision is based. In the context of Part 24 hearings, the
administrative record is the basis of EPA a adjudication of an owner /
operator s objection to the issuance of a Section 3008(h) order. The
process for development of the record under Part 24, however, is different
from that for other administrative adjudications in which RCRA enforcement
personnel are often involved, namely 40 CFR Part 22 hearings for RCRA
Section 3008(a) actions.
Part 22 hearings follow a formal adversarial model. Each party to the
proceeding attempts to present only that information supportive of its
position and only at that time when it is most appropriate for its case.
The administrative records for these decisions are developed as each party,
chiefly during the hearing, submits documents and testimony to the presiding
officer. The administrative hearing procedures found in Part 24 for RCRA
Section 3008(h) cases depart from this process to some extent. These
differences have important implications to RCRA enforcement personnel
preparing the documehtatjon for a Part 24 hearing.
Part 24 creates streamline d procedures for adjudicating PCRA Section
3008(h) order disputes. These procedures allow for less discovery and fewer
opportunities to introduce information after a unilateral order i issued
than is the norm for Part 22 hearings. In light of this, Part 24 requires
EPA to compile, at th. beginning of the administrative proceedings, an
administrative record on which it bases its initial order and to include in
the record not only documents supporting issuance of the order, but all
relevant documents C excluding privileged information ) considered by EPA in
developing and issuing the order. This might include information that does
not always support EPA s conclusions and remedial decisions. These
-2-
9940. 4
administrative record requirements give respondents an early opportunity to
understand the basis for issuance of the order and EPA ’s theory of the case.
-------
* NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 9003 13-09O745pLC -001-001
page 6 set 9 with 1 of 7 items
By the date the unilateral order is issued, the record is prepared by
EPA enforcement personnel, including Regional Counsel, and submitted to the
Pegi onal hearing clerk. This initial record, nOW maintained by the clerk,
grows as parties make additional submissions during the hearing process.
Especially for EPA, however, opportunities for additional submissions are
limited or subject to the presiding officers discretion. Since the record
is the basis of the presiding officer’s recommendation and the Regional
Administrator’s decision to accept, modify or withdraw the unilateral order,
the streamlining achieved by Part 24 forces EPA to ensure that the
administrative record be as complete as possible from the start.
Another feature of the Part 24 procedures has similar implications.
Part 24 does not give parties the right to present and examine witnesses at
a hearing. This means that EPA cannot expect or plan to supplement or fill
in gaps in the record by Presenting witness... Therefore, testimony that
EPA believes is necessary to its case should instead be in the form of a
written statement or memorandum included in the record submitted to the
hearing clerk when the unilateral order is issued.
Under the circumstances, those compiling the initial record should act
as if this is the first and last opportunity for EPA to submit documents and
information into the record. Enforcement program personnel should,
therefore, seek out the cooperation and assistance of Regional counsel in
compiling the record to ensure that it will support issuance of the
unilateral order and is otherwise complete
Part 24 does not address judicial appeals of Section 3008(h) decisions.
The administrative record developed for a Part 24 hearing, however, will be
the basis of judicial review of a Part 24 deciejon. If th, record is poor
or incomplete, the court w Lll either overturn the decision as arbitrary and
capricious or, at best, hold a trial and reconsider the decision itself. At
trial the court could require discovery of and live testimony from EPA
personnel and other supplement tjon of the record. In all cases, an
inadequate record will cause delay and wasted resources.
The above discussion concerns records for unilateral orders. It can
never be sssumed, however, that settlement negotiations will always be
successful. An anticipated consent agreement may. in fact, become a
unilateral order, As a practical matter, therefore, every order to be
issued under Section 3008(h) should be assumed to be a potential unilateral
order requiring a record satisfying Part 24. If enforcement personnel want
to be ‘ready to go” with a unilateral order as soon it is clear that
—3-
9940.4
negotiations are unsuccessful, the record also has to be “ready to go.” The
comments and issues raised during negotiations by a facility and EPA
responses to them should be memorialized for the record.
-------
NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 900313-090745-PLC -001—001
page 7 set 9 with 1 of 7 items
B. Public Participation, Oversight, Improved Decisionmaking and Quality
Orders
The administrative record serves other purposes besides satisfying Part
24 requirements for unilateral orders. These other objectives are relevant
to both unilateral and consent orders.
As discussed in the •‘Guidanee for Public Involvement in PCRA Section
3008(h) Actions,” EPA is committed to providing meaningful Opportunity to
the public to be informed of and participate In decisions that affect them
and their communities. Since the administrative record is the basis for
corrective action decisions, it can be a tool in fulfilling EPA public
involvement objectives. It should also be noted that, regardless of efforts
by EPA to integrate administrative record and public involvement activities,
most documents in the administrative record are, in any case, available to
the public through Freedom of Information Act ( FOIA ) requests. EPA’s
compiling and making publicly available an administrative record may save
EPA’s and the public’s time and resources in making and processing FOIA
requests.
One of the most important guides for determining the quality of Section
3008(h) orders is the administrative record. A review of the order and
record answers questions about the enforceability of, evidentiary support
for and judgment exercised in drafting and issuing an order. These concerns
are shared, in varying degrees, by EPA Headquarters staff, the public at
large and respondents. This should also, therefore, be a concern of
Regional personnel in their day-to—day activities. By emphasizing the
importance of compiling a good administrative record, Regions can ensure
good decisionmaking.
III. Contents of the Record
A. General
The administrative record prepared by enforcement staff for Section
3008(h corrective action orders supports the order’s findings of fact,
determinations of law and ordered relief and must contain all relevant non—
privileged documents and oral information C which has been reduced to
writing ) considered by EPA in the process of developing and issuing the
order, regardless of whether the documents support the order.
—4—
9940.4
Just as the order itself must address the elements of a Section 3008(h)
actionS
* EPA jurisdiction C issuance by a delegated authority
-------
NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 900313 -O90745-PLC —001—001
page 8 set 9 with 1 of 7 items
a release into the environment
* of hazardous wastes or hazardous constituents
from an interim status facility owned or operated by the respondent
* requiring corrective measures to protect human health or the
environment,
the adminj8tratjve record must provide factual support for statements and
provisions in the order. for example, jurisdiction could be Supported by
copies of delegation orders; releases by sampling data, inspection reports
where evidence of spills is identified, or statements made by respondents in
correspondence, submissions or notifications to EPA; interim status by
notifications, permit applications or certifications required by Section
3 005(e) of RCRA, statement, by respondents contained in those or other
submission, or correspondence. 3/
3/ If a respondent failed to satisfy the submission requirements of
Section 3005ec1), the rEcord will need to show that the respondent
should have had interim status. If statements by the respondent are
insufficient to substantiate this allegation, the record may need to
include deeds, contracts, certifications from a secretary of state
concerning the respondents corporate identity, reports showing that
respondent treated, stored or disposed of hazardous wastes when it
should have had a permit or interim status, etc.
Without this support, orders issued unilaterally may be modified, withdrawn
or vacated by the Regional Administrator or a court. Although consent
orders are less likely to be challenged, disputes concerning interpretation
of orders could, in some cases, be more readily resolved C and perhaps
avoided ) by a complete record.
Determining what documents are needed to support an order involves
judgment and discretion. For example, if an aspect of an order is likely to
be contested by a respondent, more supporting documentation may be needed in
the record in that area. These documents may, in fact, raise positions
rejected by EPA. When they, however, are read in the context of other
documents in the record that give reasons for rejecting these positions and
accepting EPA, position, they may ler d support and credibility to the
order. Whatever the specific reason may be for including in the record a
supporting document, a fundamental
-5-
9940.4
factor in making that determination is that EPA may have limited opportunity
after an order is issued to make additional submissions to the record. As
Previously discussed in II. Purposes of the Administrative Record, this
factor encourages making the record complete from the beginning.
In addition to documents that support the order, the record must also
-------
NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’
Order number 9 00313-090745—PLC —001-001
page 9 set 9 with 1 of 7 items
include all non—privileged documents and oral information ( which has been
reduced to wr ting ) considered by EPA in developing and issuing an order.
Under Part 24. documents considered by EPA are documents that were relied
upon or comments which EPA solicited and received from respondents or the
public to proposed EPA decisions or actions relevant to the order.
The record prepared by enforcement personnel for RCRA Section 3008(h)
cases is not supposed to be one-sided, reflecting only EPA a point of view.
As already discussed, choosing to include opposing positions in the record
can lend support to the order. While making that choice in the Context of
determining what will or will not support the order involves discretion and
judgment, comments solicited and received by EPA to decisions relevant to
the order must be included, regardless of whether they include information
or opinions that support the position taken by EPA in the order. It is
recommended that an EPA response accompany them. C Unsolicited comments
received by EPA are not required to be included in the record, but if they
are significant, it is recommended that they be included, along with an EPA
response, since they are likely to be raised at the Part 24 hearing.
Although a respondent has the opportunity to add information to the
record under the Part 24 hearing procedures, those procedures, as discussed
previously, require and rely on EPA’s effort to include in the initial
record all relevant information considered C relied upon ) by the Agency in
issuing the order. Since it cannot always be determined precisely whether
specific information was relied upon, there should be a preference for
including relevant documents in the record when compiling the record.
Questions concerning inclusions in the record should be referred to Regional
counsel.
B. Document Sources
Documents are writings, drawings, graphs, charts, photographs, and data
compilations from which inform ation can be obtained. Physical samples are
not documents. Computer disk5 or tapes are not documents ( and are not part
of the record ), but records containing information saved on disks or tapes
and printouts from disks or tapes are documents.
—6—
9940.4
Various documents may contain relevant information that should be looked
to for inclusion in the administrative record. These documents may
typically be, but are not limited to:
EPA Investigative Records
- Inspection reports
— Sampling and analytical data and related chain of custody and
-------
* NOTE THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’
Order number 900313 -Q9O745pLc —001-001
page 10 set 9 with 1 of 7 items
quality control i quality assurance documentation ( discussed
further below
- Photographs
- Statements by witnesses c factual or expert witnesses
- Statements i interview reports with current or past facility
employees, managers, etc.
- Records of leads or complaints by citizens
Communications with Respondents
- Records of conferences or telephone calls
- Written communications
- Technical documents
* RCRA Sources
- Section 3 0 10(ô) notifications
- Part A or Part B permit applications
- Response to Section 3007 letter concerning presence of SWMUs
— Comprehensive Monitoring Evaluations ( CMEs
- Exposure Information Report
— Biennial reports
- Waste manifests
- Facility Assessments RFAs
- Facility Investigations RFIs
— Corrective Measures Studies C CMSs
- Responses to Section 3007 information requests
—7—
9940.4
- Information obtained through Section 3013 orders
-------
r’1u-r . THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 90031 3-090745-pLc -001-001
page 11 set 9 with 1 of 7 xtems
- Administrative or Judicial Orders ( e.g.. Sections 3008a, 3013.
7003 ) and supporting documentation
- Groundwater Task Force reports
- Applicable guidances and directives ( discussed below
- IRIS reports
— Progress reports
- EPA release determination
CEPCLA Sources ( discussed below
- Section 103(c) Notifications of Reportable Quantities
- Responses to Section 104 information requests
- Preliminary Assessments PAs
- Site Investigations c SIs
- Hazard Ranking System ( HRS ) documentation
- Remedial Investigation / Feasibility Studies C RI/FS
- Proposed remedial design and action plans
— Records of Decision ( RODs
- Field Investigation Team Reports
- Action memoranda for removals
State Sources ( discussed below
— Investigative records
- Studies
— Orders
- EPA / State or State / respondent communications
— Permit applications
- Responses to demands for corrective action
—8—
-------
NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 900313 —090745.PLC —001—001
page 12 set 9 with 1 of 7 items
9940.4
Other Federal Program Records
- Clean Air Act or Clean Water Act permits and permit applications
- TSCA / OSHA inspections
- DOD Installation Restoration Program Reports
- Reports from the Department of Interior and other Federal or State
Natural Resource Trustees
* Documents Filed with the Regional Hearing Clerk or Presiding Officer.
I For enforcement personnel compiling a record for a consent order or a
unilateral order, this category of documents generally include, only
documents submitted in a related prior proceeding. The hearing clerk
handles submissions made during pending Part 24 proceedings.
a Miscellaneous sources
- Well permits
- Deeds
- Legal descriptions of property
- U.S Geologic Survey nd state hydrogeologic maps
- Population data from U.S. Census Bureau or local utilities
- Weather information from airports or weather bureaus
- Toxicological reports
- Financial reporting documents, such as Dunn S Bradstr.et profiles
for issues such as the need for financial assurance
- Securities and Exchange Commission C SEC ) corporate filings
* Public Involvement
- Public notice and analysis of proposed corrective measures
- Public comments
- Documentation of information obtained at public meetings
—9—
-------
NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 900313-090745-PLC -001—001
page 13 set 9 with 1 of 7 items
9940.4
- Other communications with public, including congressional
correspondence
— Responses to public comments
— Newspaper or magazine articles
This list is not exhaustive and there will likely be other possible
sources for documents included in the record. As discussed under 11 1. I.,
Documents Not Included in the Record, some documents listed above, or parts
of them, may be privileged and should not be in the record.
C. Guidances and Directives
EPA guidances or directives that were relied upon in developing or
issuing the order should be part of the administrativ, record. They do not.
however, have to be physically in the record if they are referenced in the
index and readily accessible for inspection and copying in the same building
where the administrative record is kept. In determining whether to include
copies of guidances or directives ( or portions of them ) in the record, the
burden to EPA of making copies of voluminous or repeatedly used documents
should be weighed against the added burden to those reviewing the record of
having to look elsewhere in the building for these documents. To minimize
this problem, it is recommended that the Region keep a guidance and
directive library in the same area as the administrative record.
D. Legal Sources
Legal sources - statutes, regulations, court or administrative
decisions, notices published in the Federal Register — are not required to
be part of the administrative record. For legal sources not generally
available at a public law library, such as unreported court cases and
administrative orders or decisions, it is recommended that copies be
available for inspection and copying in the building where the
administrative record is kept. This procedure can assist the respondent and
the public in reviewing the record.
E. Technical Sources
Technical sources such as scientific or engineering textbooks, manuals
or articles that were relied upon in issuing or developing the order must be
part of the administrative record. Large documents or ones that are
frequently referenced in Agency orders may be treated analogously to EPA
guidances or directives, as discussed above, and not physically placed in
the record
- 10 —
-------
NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’
Oraer number 9003 13-09O745-PLC —001-001
page 14 set 9 with 1 of 7 items
9940.4
F. Sampling Data
Sampling data relied upon by EPA in issuing or developing the order
should be in the record. The sampling data and sampling chain of custody
forms are part of the record but they may be kept in their original storage
location, e.g., Environmental Services Division or contract laboratory.
Data summary sheets, however, must be physically located in the record. The
index must list the data summary sheets, reference the underlying sampling
data and chain of custody forms, and indicate where the underlying data and
forms can be found.
G. CERCLA Sources
If RCRA Section 3008(h) ac’tion is taken at a site where there is also
Comprehensive Environmental Response, Compensation, and Liability Act
CERCLA ) activity, information developed for CERCLA actions will likely be
relevant to Section 3008(h) decisions and should be part of the Section
3008(h) record. At the same time, information developed under RCRA,
including under Section 3008(h) authority, will likely be included in CERCLA
files and administrative records. The administrative record requirements
for CERCLA response actions are discussed in Interjm Guidance on
Administrative Records for Selection of CERCLA Response Actions, OSWER
Directive No. 9833.3A, dated March 1, 1989.
The often close relationship between RCRA Section 3008(h) and CERCLA
activity at the same facility or site will require coordination to ensure
that the requirements of both legal authorities are efficiently met.
Generally, either CERCLA or PCRA staff will have lead responsibility at a
site. With respect to administrative records, good organization of
documents concerning a facilittj or site will make compiling records for RCRA
Section 3008(h) orders or CERCLA response actions easier. Compiling a joint
Section 3008(h) / CERCLA response action administrative record, however, is
not recommended. There are various reasons for this.
Although some aspects of a RCRA Section 3008(h) orders and CERCLA
response selections are similar - such as using or requiring information as
to the nature and extent of contamination or the ability of certain
technologies to effect a cleanup — other aspects are not. These differences
in the decisionmaking process may affect what goes into an administrative
record for a RCRA Section 3008(h) order or a CEPCLA response action and
dictate against compiling joint records.
H. State Sources
States may be taking actions under their own authorities at facilities
that may be subject to Section 3008(h) orders. As with
-------
NO1E THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 900313-090745 -PLC —001-001
page 15 set 9 with I of 7 items
— 11 —
9940.4
CERCLA activity, information developed by the State may be relevant to
Section 3008(h) decisions. If this information was relied upon, it must be
in the Section 3008(h) adminIstrative record to make it complete.
Inspecting the record must not be a treasure hunt. Merely referring to or
referencing state files or “administrative records” is generally not
sufficient and requiring those reviewing the record to go to different
locations to find the various pieces is not acceptable. Since many States
will not have one centralized agency collecting documents relevant to the
Section 3008(h) order, EPA may have to look for documents kept in various
agencies, such as those for health, agriculture, fish and wildlife,
transportation, etc.
I. Information Not Included th the Record
internal deliberative material
attorney work-product
a attorney—client communications
a investigative techniques or procedures
* confidential business information in the public record
Certain documents, even though they relate to a facility, might not meet
the test for inclusion — they neither support the order nor were they relied
upon or considered by EPA in developing or issuing the order and thus are
not relevant. These documents might be kept in a file for the facility, but
- they should not be included in the administrative record for a Section
3008(h) order that is compiled, indexed and subject to inspection and
copying by respondents and members of the public. ( Although these
documents are not part of the record, some might be available to the public
through Freedom of Information Act ( FOIA ) requests.
Privileges that EPA may claim. Inter— or intra-agency documents that
are pre—deciejonal deliberative material, attorney work-product, attorney-
client communications and certain law enforcement records, including those
that disclose investigative techniques and procedures ( such as certain
enforcement guidances and manuals ) or could reasonably be expected to
interfere with enforcement proceedings, are exempted from disclosure to
respondents and the public and should not be included in the record. 4/
4/ Part 24 states that the record be “.. . exclusive of privileged internal
communications.” 40 CFP Section 24.03. Note that rules concerning
inclusion of privileged documents in administrative records compiled
under CERCLA for selection of response actions may be different.
EPA may, however, waive these privileges ( by disclosure to third parties ),
but this should not be done without first consulting Regional counsel.
-------
* NOTE THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 900313 -O9O745pLC -001-001
page 16 set 9 with 1 of 7 items
— 12 —
9940. 4
Inter— or intra agency documents that are pre—decisional deliberative
material are frequently drafts. notes or memoranda expressing opinions or
recommendations as opposed to factual information, to staff or management.
To be within the privilege, documents must be pre—decisional. Drafts are a
category of documents likely to be within the privilege. If the draft
document is expressly adopted in or is used as the final document, however,
or if it is Circulated outside the government ( and its contractors ), the
draft loses the deliberative process privilege protection.
Attorney work product includes documents prepared in anticipation of
litigation by an attorney or under an attorneys supervision, including
reports by consultants or program staff and certain witness statements and
interview reports. Since this Privilege does not terminate when a
Proceeding is concluded, documents subject to the privilege could include
work related to past enforcement Proceedings.
Attorney_client communications, as between Regional counsel, OECM, OQC
or DOJ and EPA program personnel, include information intended to be kept
confidential and made in connection with obtaining or giving legal advice.
In order to retain the Privilege, the information must be treated
confidentially and not be disclosed to third persons.
The above privileges are the most likely to arise in compiling the
record. This is, how*ver, not an exhaustive list or a complete discussion
of privileges Regional counsel should, therefore, be Consulted concerning
the applicability of privLleges. In addition, Regional and Headquarters
personnel responsible for implementing FOIA may be able to provide advice on
Privileges. 5/
5/ The Freedom of Information Case List, published annually by the
Department of Justice, Office of Information and Privacy, is a good
reference for FOIA and privileges.
Confidential Business Information. Confidential business information
CBI ) furnished to EPA is subject to a Privilege claimed by the business
submitting the information. EPA does not have the discretion to waive CBI
and disclose it to the public. In fact, there are penaltie, for improper
disclosure of business information that is entitled to CBI treatment. See
18 USC Section 1905.
EPA has issued, under 40 CFR Pert 2, Subpart B. detailed regulations
concerning CBI, including the rules for handling business information which
is or may be entitled CBI treatment and for determinations by EPA of whether
information is, in fact,
— 13 —
-------
* NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’
Order number 900313-090745-PLC -001-001
page 17 set 9 with 1 of 7 items
9940.4
entitled to CBI treatment. Certain statutory provisions may set different
standards for what qualifies as CBI ( for example, SARA Title III ) so the
statutory provision under which information is submitted should be referred
to when a question concerning CBI arises. Other statutory provisions may
affect rules for non-disclosure of information. For example, information
obtained under RCRA Section 3007 may be disclosed in certain circumstances
if relevant to a proceeding under RCRA, such as issuance of a Section
3008(h) order. See 40 CFR Section 2.305. Before including in the record
material that may be subject to CBI, Regional counsel should be consulted.
Since CBI is a privilege claimed by the business submitting the data,
that business can waive the claim. EPA can ask the business to waive CBI or
narrow its claim. In addition, EPA may provide CS! to the business
submitting it.
Using Privileged Information and CS!. EPA may wish to include in the
administrative record relevant documents protected from disclosure because
of a privilege or CBI. Rather than waiving a privilege C assuming EPA may
do so ) or not using the document and excluding it from the record, EPA can
consider certain alternatives. First, documents can be included in a
confidential portion of the administrative record that is withheld from
public disclosure but is available to the respondent. This can be used with
CBI submitted by the respondent since CS! treatment is maintained. For most
other privileges, however, disclosure to the respondent may waive EPA ’s
privilege. All documents placed in the confidential portion of the
administrative record must be identified in the administrative record index,
which is available tQ the public.
Second, information contaiped in an excluded document can, if feasible,
be extracted and placed in the record available to the public and the
respondent. This can be done by summarizing the relevant information or
editing out the information not to be made public. For example, factual
information contained in a draft document subject to the privilege for
inter- or intra-agency pre-decisional deliberative material can be extracted
into another document and placed in the record. If EPA follows the first
alternative and creates a confidential portion of the record available to
the respondent, it should also attempt to extract from that record non-
protected information for public disclosure.
V. Compiling the Record
A. When
The record must be compiled and indexed on or before the date a Section
3008(h) unilateral order is served on a respondent ( 40
— 14 —
-------
NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’
Order number 900313-090745-PLC -001-001
page 18 set 9 with 1 of 7 items
9940.4
CFP Section 24.03 ). A record should be compiled and indexed for consent
orders when they are issued.
Ideally, the record should be compiled as documents and information are
obtained by EPA. The process of indexing, organizing and updating the
record can help make EPA decisionmaking more orderly and efficient.
Following such a process will make it easier for staff newly assigned to
work on a case to become familiar with it and allows staff already assigned
to a case to leave one case to work on another. Managers also will have the
flexibility to require these moves.
Public interest concerning activities at a facility should be considered
when deciding when to begin compiling a record. If there is exceptional
public interest and there has been or may be requests for access to
documents in a facility file, beginning to compile a record early and making
it available to the public 1. advisable. The final compilation of the
record can be done before the order is issued.
As an alternative to beginning to compile the record early in the
process, Regions could make available to the public especially important
documents related to corrective action. These could include the PCRA
Facility Assessment ( RFA ), the RCPA Facility Investigation ( PFI ) Report
and the Corrective Measures Study ( CUS ) Report. Th. public comment period
for selection of a corrective action plan is a critical point for public
involvement and making these documents publicly available could facilitate
the process. Regions are very strongly urged to adopt this approach for the
comment period. Note that the comments received by EPA, along with its
responses, must be included in the record.
The complete Section 3008(h) corrective action process will not
generally involve a single order or a single event for implementation. The
process is dynamic. Documents and information resulting from earlier
activities at a facility may be ueed to build administrative records for
subsequent actions. For example, orders will generally be issued in two
stages - the PCRA Facility Investigation ( RFI ) through the Corrective
Measures Study C CMS ) as one order, and the Corrective Measures
Implementation C CMI ) as a second order — with the second building on the
first. There may be additional orders required to enforce implementation a
Section 3008(h) order. In addition, many activities, some over extended
periods of time, will be occurring during implementation. The information
may be of interest or necessary to those following or overseeing corrective
action activities at a facility.
Regions should, therefore, keep with the record for the final order
i.e., the record accompanying issuance of a consent order or the record as
it stands after completion of Part 24 proceedings ) relevant documents
obtained during implementation of
-------
rqulc.’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’
Order number 9003 13-090745 -pLc —001-001
page 19 set 9 with 1 of 7 items
— 15 —
9940.4
the order. Technically, these poet—decisional documents are not part of the
record for the final order and should be identified as supplemental to the
record for the final order.
B. Location
The record should be located in the Regional Office issuing the order.
For unilateral orders, the record must be maintained by the Regional
hearing clerk at the Regional office during the Part 24 process ). If there
is substantial public interest in a facility, Regions should consider
keeping additional copies of the record C or a subset of documents from it
near the facility — a library, for example, or other information repository
- or at a state environmental office. If RCRA permitting or CERCLA has
created an information repository at or near the site, the Region should
consider using the same location.
It Should be noted that CERCLA regulations require that the complete
administrative record file be kept at the EPA Regional office and a copy of
this file, with some exceptions, be located at or near the site. At Federal
facilities where CEPCLA authorities are being used, CERCLA administrative
records are compiled by the Federal agency in accordance with CERCLA
administrative record and public participation requirements. However, the
complete record is located at the Federal agency office comparable to an EPA
Regional office, rather than at the EPA office. If a S•ctjon 3008(h) order
is issued to a Federal facility, regardless of whether CERCLA activity is
also occurring, EPA retains responsibility for Compiling the Section 3008(h)
record and locating it at the EPA Regional office.
C. Organization -
The record must be in some logical order. The record is supposed to be
a working file that allows users to locate documents relevant to their
interests. A logical order helps achieve this goal.
The simplest and often most useful organization is arranging all
documents chronologically. Even if documents are arranged by subject areas
in sub-files, documents should be arranged chronologically within each sub-
file. Generally, documents should be put in the record according to the
date they were completed, not received by EPA. The date of EPA ’s receipt of
a document is, however, often relevant and Regions should make it standard
practice to stamp the date of receipt on all documents.
There are innumerable subject areas that can be used to organize the
record into Sub—files. The headings found under Document Sources in this
guidance are one possible set of subjects. Other possibilities include
-------
NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 9003 l 3 -090745..pLC -001—001
page 20 set 9 with I of 7 items
arranging the record
- 16 -
9940. 4
according to the elements of the order or segregating documents relating
specifically to the facility from other documents, Such as guidances,
directives or technical sources. When certain issues can be identified
beforehand as being of special interest or subject to dispute, they can be
the basis for record division. The choice of file organizatj can be a
matter of personal preference, For example, an attorney handling a Section
3008(h) hearing may prefer, in presenting the record to the hearing officer,
one file organization over another. As long as the chosen organization is
logical, it is acceptable.
Each document should be given a document number or letter. This number
should be marked on the front of the document or the blank flip side of the
first page. The number should be a serial, number showing the document’s
location in the entire record or Within some sub-file. The number must be
unique to the document so that documents with similar descriptions, titles
or dates can be differentiated. it is recommended that each page of the
record be numbered in series,
0. Index
The record must be indexed. The index serves several functions. It
must, at a minimum, identify all documents in the record and their location.
By knowing what is supposed to be in the record and where, EPA is better
able to prevent the Unauthorized addition or removal. of documents from the
record by those inspecting it. The index also helps the user to locate
documents in the record.
An index may be little more than a table of contents that tracks record
organization. The index, however, can also supplement organization. For
example, if the record is arranged chronologically, the index could be
arranged by Subject. This gives the user two ways of locating documents in
the record.
If the resources are available, various indexes can be created by using
a computer database management system. Documents comprising the record can
be coded according to various fields, and indexes created by the choice of
fields. A chronological index, for example, could be created using the date
field.
Regardless of the type of index used, it should contain the following
information for each document:
Description of the document. This Should include the documents title,
-------
* NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 90 0313-09O745-pLC -001-001
page 21 set 9 with I of 7 items
if any, and a very brief description identifying a document’s subject or
contents. This description should enable differentiating the document
from other documents in the record.
— 17 —
9940.4
Identity of the author and recipient. It is recommended that their
affiliations or tiles also be included.
* Date. Give the date ( or approximate date ) that the document was
completed or generated.
* Location of the document. If the document is physically in the record,
give the sub-file name, if any, and the document’s number ( see
Organization, above ). I the document is not physically in the file
such as an EPA guidance or CBI that is in a confidential file ),
identify where it is located.
Number of pages in document.
V. Maintaining the Record
A. Public and Respondent Access
During the time a unilateral Section 3008(h) order is subject to the 40
CFR Part 24 procedures, the hearing clerk must satisfy Part 24
administrative record requirements for public and respondent access ‘to the
record.
The administrative record for consent orders and unilateral orders after
the Part 24 process is complefed should be accessible to the respondent and
the public for inspection at the Regional Office during normal business
hours, for example, 9 A.M. to 4 P.M.. Monday through Friday. Every effort
should be made to make the records available without requiring the
respondent or members of the public to give EPA prior notice or make an
appointment. Resource shortages, both personnel and apace, may, however,
justify a reasonable prior notice requirement.
Even if it adopts such a requirement, the Region should attempt to
continue to work toward obviating the need for requiring prior notice. If
continual need for access to a specific record is anticipated, as where
there is substantial public interest in a facility’s activities, an attempt
should be made to arrange for access without requiring prior public or
respondent notice to the Region.
In no case should the person seeking access to the record demonstrate
need or be required to pay a search or access fee. C See Document Copying,
below.
-------
NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 900313-090745-PLC -001—001
page 22 set 9 with 1 of 7 items
B. How Long Available
The record for consent orders and unilateral orders that are final after
the Part 24 process should be available to the public and the respondent
until the respondents obligations under the order are satisfied and the
order terminated. Order
— 18 —
9940.4
implementation may occur over a long period and public interest in having
easy access to the record may eventually decline, as when a remedy is in a
routine maintenance and monitoring phase. Taking this into account, Regions
may wish to balance the resour ces required for keeping the record at the
Regional Office against archiving it elsewhere and retrieving it when a
specific request for access is made.
C. Notice of Availability
At or before the time the administrativ, record for a unilateral order
is delivered to the hearing clerk or a consent order is issued, the Region
should notify the public of the availability of the record for inspection.
Appendix B contains a model notice. ) The procedures for public notice
found in Guidance on Public Involvement in the RCRA Permitting Program,”
should be followed. Regions should also consider providing additional
notices for the availability of the record at other times. For example, if
the Region has started compiling the record and making it publicly available
prior to issuance of an o.Lder. such as during the comment period for
selection of the corrective measure, the public should be notified. Notices
should contain any requirement for those seeking to review the record to
contact Regional personnel beforehand.
Unilateral orders must notify respondents of the availability of the
record.
0. Controlling the Record
Access to the record should be controlled to ensure its continued
integrity. These should be a sign—in log for those inspecting the record.
The log should ask for the individual’s name, address, phone number, and
affiliation, and also record which administrative record C there may be
records for other cases at the same location ) was inspected and any copying
fee collected or waived C see Document Copying, below
Agency personnel should be at or near the area where a record is being
reviewed. They can provide assistance to those reviewing the record and
also help supervise the ares to prevent documents being lost or damaged or
the record becoming disorganized. Alter a record has been inspected, it
-------
NOTE’ THIS DOCUMENT MAY NOT BE IDENTICAL TO THE ORIGINAL DOCUMENT’ *
Order number 900313-090745-pLC -001—001
page 23 set 9 with 1 of 7 items
should be checked to determine that all documents have been returned intact.
The record available for public and respondent inspection should be a
duplicate copy of the record It Is very strongly recommended that EPA
request that respondents provide at least one additional copy of their
submissions for inclusion in the
- 19 -
9940.4
publicly available record. The master copy of the record should be kept by
the Agency.
E. Document Copying
The record at the Regional Office should be available to the public and
respondent for copying. EPA can have a copying machine available for public
use where the record is located, or the Agency can make copies for
r equestor S.
If EPA makes partial or complete copies of the record available for
inspection in addition to the one at the Regional office, EPA should also
attempt to have copying facilities available at these locations.
Peg ons should follow FOIA requirements and policies in determining the
appropriate charge for copying. Generally, copying fees should be waived
for other Federal agencies, members of Congress and EPA contractors or
grantees. For all other persons or entities, including respondents, the
duplication cost for paper copies of paper originals is $15 per page,
actual cost for duplicating photographs and non—paper originals. No fee
should be charged to anyone for the first 100 copies of paper originals. In
addition to these free copies, there is an administrative fee waiver for
subsequent copying costs up to $25.00. ( At $.15 per page, this
administrative fee waiver covers another 166 copies. ) The reason for this
waiver is that the Agency does not collect a fee if the cost of processing
and collecting the fee exceeds the amount it is permitted to collect. The
Agency has determined that $25.00 is the cost of collecting and processing
fees. There is no administrative fee waiver if copying costs exceed $25.00.
Therefore, if more than 266 copies are made ( 100 free copies plus 166
copies under the administrative fee waiver ), the $15 per page charge
should apply to all copies beyond the free first 100 copies.
- 20 -
OMITTED TEXT. Appendix A - 53 Fed. Peg. 12256; Appendix B - Model Public
Notice of Record Availability
“End of document reached”
-------
91 SUPREME COURT REPORTER
814
401 U.S. 353
for giving Hazeltine’s counsel five days
J ,54J n which to file his affirmative defenses,
the judge made no other relevant com-
ments in ruling q t e motions.
I find it impossible to believe that the
judge ruled thus summarily on the merits
of the complicated issues of antitrust law
to which this Court devotes 15 printed
pages 1 also find it highly unlikely that,
without a word of explanation for depart-
ing from the sentiments he expressed
during argument, the judge intended to
forgive Hazeltine’s fatlute to raise the
defenses earlier. To be sure, he must
have considered the merits sufficiently
to satisfy himself that refusal to allow
Hazeltine to raise these defenses worked
no gioss inequity. See Fed Rule Civ.
Proc. 15(a). 1 remain convinced, how-
ever, that he rejected the defenses only
as untimely iaised.
Believing that the Court of Appeals
clearly eiied in reaching the opposite
conclusion, 5 1 concur in the judgment of
the Court on that ground
€(TMUMIL1STSTIN
401 U S. 402
CITIZENS TO PRESERVE OVERTON
PARK, INC., et al.,
John A. VOLPE, Secretary, Department
of Transportation, et al.
No. 1066.
Argued Jan. 11, 1971
Decided March 2. 1971
Action by citizens’ organization, in-
dividuals and conseivation group to en-
join Sect etary of Transportation from
5 The opinion of the Court of Appeak
gi’. Cs no indication that its .ittention o as
drao ii to the I ciii ii k of th Disti ict Judge
dui tug lln,eltitic aiguinetit iii chief
o loch c ist light Ott its ruling ott the ito—
lion fot lease to fil. Its entire disci sioti
of titi’ litsi’, for tli I Jtsti tt_t Coit it fl( tiOti
ii td is folIos’.,
Zenith coittisel objected to the filing
of the dcfeuses Ott the ground that thiC3
.itne too late and ss ci e oats ed The dis
releasing federal funds to state highway
department for construction of segment
of expressway through city park. The
United States District Court for the
Western District of Tennessee, 309 F.
Supp. 1189, granted Secretary’s motion
for summary judgment. The United
States Court of Appeals for the Sixth
Circuit, 432 F 2d 1307, affirmed and cer-
tiorari was granted. The Supreme Court,
Mr. Justice Marshall, held that litigation
affidavits containing “post hoc” iation-
alizations were not an adequate basis for
review of action of Secretaiy of Trans-
portation in authorizing expenditure of
federal funds fot construction of expiess-
way thiough public park, and case would
be remanded to District Court for plen-
ary review based on the full administra-
tive record that was before the Secretary
at the time he made his decision
Reversed and remanded
Mi’. Justice Douglas took no pait in
the consideration or decision of the case
Mr Justice Black, joined by Mr
Justice Biennan, filed dissenting opinion
Mr Justice Blackmun filed concur-
ring opinion.
1. UnIted States 82
Pleadings of petitionel’s challenging
action of Secretary of Transportation in
releasing federal funds to state highway
department for construction of express-
way through public l)ark were sufficient
to challenge merits of Secretary’s deci-
sion and did not raise only the issue of
failure of Secretary to make formal find-
ings 5 U S C.A § 706.
tin t (OUi t. Ito ’ .’. us ci tiet nutted the defens
us to be filed miii thereafter denied 11 fl Is
niot ion fot judgiuctit b.i ed on the defenses
* * (Tue ‘ ,ti ii enie (‘on rt left open
the quc,tion o htethiei this ruling vi’, on
the mci its 1 It is our tess that the
coot (‘s i tihtiig ss as not ott the basis of
otis ci but beciuse the (lCfCttSCS on thici
merits dish not bat Zeiiithi , recos Cr’.
41S F 2d, at 23—24
-------
2. United States ‘ S2
Secretary of Transportation was not
required to make formal findings prior to
authorizing use of federal funds to fi-
nance co rbctio i of expressway
through public park, with respect to rea-
Sons for concluding that there were no
feasible and prudent alternative routes
or why design changes could not be made
to reduce the harm to the park. Depart-
ment of Transportation Act, § 4(f), 49
U S C.A. § 1653(f), 23 U.s.c A § 138
3. Administrative Law and Procedure
7Ot
United States € 82
Decision of Secretary of Transporta-
tion authorizing use of federal funds to
finance construction of expressway
through public park did not fall within
exception to reviewability under Adrnin-
istrative Procedure Act for action “com-
mitted to agency discretion,” and Secre-
tary’s decision was subject to judicial
review Department of Transportation
Act, § 4(f), 6(h), 49 U S.C A § 1653
(f), 1655(h), 23 US.CA. § 138, 5
USCA § 706.
4. United States 82
Under sections of Department of
Transportation Act and Federal-Aid
Highway Act providing that Secretary
of Transportation shall not approve any
project requiring use of public parkland
unless there is no feasible and prudent
alternative and such program includes
all possible planning to minimize harm to
such park, although Secretary should not
ignore cost and disruption of the com-
munity, the protection of parkiand is to
be given paiamount importance. De-
partment of Transportation Act, § 4(f),
49 U.S.C.A. § 1653(1), 23 USCA §
138
5. Statutes 2L7.4
Where legislative history is ambig-
uous, court will lookto the statutes them-
selves to find the legislative intent
6. Administrative Law and Procedure
79 I
Review undei the substantial e’ i-
dence test is authorized only when the
815
agency action is taken pursuant to a rule-
making provision of the Administrative
Procedure Act itself, or when the agency
action is based on a public adjudicatory
hearing. 5 U.S.C A. § 553, 556, 557,
706(2) (A—F).
7. UnIted States € 82
Decision of Secretary of Transpor-
tation to allow expenditure of federal
funds to build expressway through public
park was not in exercise of a rule-making
function and neither the substantial evi-
dence standard nor a de novo review to
determine if Secretary’s action was un-
warranted by the facts was applicable
5 U.S.C.A. § 553, 556, 557, 706(2) (A—
F)
8. Administrative Law and Procedure
744
De novo review to determine if
agency action was unwarianted by the
facts is authorized when the action is
adjudicatory in natuie and the agency
fact-finding procedures are inadequate
and when issues that were not before
the agency are raised in a proceeding to
enforce nonadjudicatoiy agency action
5 U.S.C.A. § 706, 706(2) (F), 23 US
C A § 128.
9. United States 82
Court reviewing action of Secretary
of Transportation authorizing use of fed-
eral funds for construction of express-
way through public park was required to
decide whether Secretary acted within
scope of his authority and whether Secre-
tary could have reasonably believed that
there were no feasible alternative routes
or that alternatives involved unique prob-
lems and was required to determine
whether decision was based on consider-
ation of the relevant factors and whether
there had been a clear errot of judg-
ment Department of Transportation
Act, § 4(f). 49 USCA § 1653(f), 23
USC4 § 128, 138, 5 USCA § 706,
706(2) (F)
10. Evidence 83 (1)
Decision of Secietaiy of Tiansporta-
tion authorizing use of fedetal funds fot
consti uction of expi essway thi ough pub-
401 U.S. 402 OITIZE IS TO PPi SERVE OVERTON PARK. INC. v. VOLPB
Cite nji9l S.(’t 514 (1971)
-------
816
91 SUPREME COURT REPORTER
401 U.S. 402
lie park was entitled to presumption of
regularity. Department of Transporta-
tion Act, § 4(f), 49 U.S.C A. § 1653(f);
23 U.S.C.A. § 138.
11. United States -
Absence of formal findings by Sec-
retary of Transportation authorizing use
of federal funds fot construction of ex-
pressway through public park did not re-
quire that case be iemanded to Secretary
even though Department of Transporta-
tion regulation issued subsequent to Sec-
retary’s decision required Secretary to
make formal findings, inasmuch as
change in circumstances had occuried
since Sect etary’s decision and there was
an administrative record that would al-
low full, prompt ieview of Secretary’s
action. Department of Transportation
Act, § 4(f), 49 USC.A. § 1653(f), 23
U.S C A. § 138, Executive Order No
11514, 42 U.S.C A § 4321 note.
12. United States 82
Litigation a ffi da v its containing
“post hoc” rationalizations were an in-
adequate basis for revie\% of decision of
Secretaiy of Transportation authorizing
the use of federal funds for construc-
tion of expressway through public park
Department of Transportation Act, § 4
(f), 49 U S C.A. § 1653(f); 23 U S.C A.
§ 138.
13. AdminIstrative Law and Procedure
753
Inquiry into the mental processes of
administrative decision makers is usually
to be avoided and there must be a strong
showing of bad faith or improper be-
havioi befoie such inquiry may be made.
14. United States 82
Couit reviewing action of Secretary
of Transportation authoi izing use of fed-
etal funds fot constiuction of express-
way thiough public paik could require
the administrative officials h pal tici-
pated in the decision to give testimony
* ‘1’h lI.ilno. COli’t it i iti. —. 110 P lit of the
oplilioli of ilic (_oIII t but Ii 1)0(01 tile.
lured In the h Ot ’ 01 ret of D isious fot
•_oII\ eiiuuiee of the t e id.r See Unit-
explaining their action. Department of
Transportation Act, § 4(f), 49 U.S.C.A.
§ 1653(f); 23 U.S.C.A. § 138.
SyUabus*
Under, 4(f) of the Department of
Transportation Act of 1966 and § 138
of the Federal-Aid Highway Act of 1968,
the Secretary of Transportation may not
authorize use of fedetal funds to finance
construction of highways through public
parks if a “feasible and pi udent” alterna-
tive route exists If no such route is
available, he may appiove construction
only if there has been “all possible plan-
ning to minimize harm” to the paik
Petitioners contend that the Secretary
has violated these statutes by authoriz-
ing a six-lane interstate highway
through a Memphis public park. In
April 1968 the Secretary announced that
he agreed with the local officials that
the highway go thiough the park, in
September 1969 the State acquired the
tight-of-way inside the park; and in
November 1969 the Secretary announced
final approval, including the design, of
the road. Neither announcement of the
Secretary was accompanied by factual
findings. Respondents introduced aff i-
davits in the District Court, indicating
that the Secretary had made the deci-
sion and that it was supportable. Peti-
tioners filed counter affidavits and
sought %o take the deposition of a former
federal highway administrator. The Dis-
trict Court and the Couit of Appeals
found that formal findings were not re-
quired and refused to order the deposi-
tion of the former administrator Both
courts held that the affidavits afforded
no basis for determining that the Secre-
tary exceeded his authority. Held.
1 The Secietary’s action is subject
to judicial leview puisuant to § 701 of
the Administrati e Pioceduie Act Pp.
820—82 1
u I (.itc -, u 1i (bit Tiiiiljti & [ .uiiihct
C 200 L S 321. J37 2( Cr 2 2 2S7.
0 I. h d 4’V)
-------
(a) There is no indication here that
Congress sought to limit or prohibit ju-
dicial review. P. 820.
(b) T cem$ion for action “com-
mitted to agency discretion” does not al)-
ply as the Secietary does have “law to
apply,” rathei than wide-ranging discre-
tion Pp 820—821.
2 Although under § 706 of the
Act de novo review is not iequired here
and the Secretary’s approval of the route
need not meet the substantial-evidence
test, the reviewing coutt must conduct a
substantial inquiry, and d termine
whether the Secretary acted within the
scope of his authority, whether his de-
cision was within the small range of
available choices, and whether I e could
have reasonably believed that there were
no feasible alternatives The court must
find that the actual choice was not “ar-
bitrary, capricious, an abuse of discre-
tion, or other ise not in accordance with
law,” and that the Secretary followed the
necessary procedural requirements Pp.
822—823
3 Formal findings by the Secre-
tary were not required in this case Pp
824—825
(a) The relevant statutes do not re-
quire formal findings, and there is no
ambiguity in the Secretary’s action P
824
(b) Although a regulation requiring
formal findings was issued after the
Secretary had approved the route, a
remand to him is not necessary as there
is an administrative record facilitating
I. See. e g The National Etv roumeittal
Polic Act of 1969, 83 Stat. .52. 42 U S
C 4321 ef scq. (1964 ed.. Supp V)
En ironmental Dducatioii Aet, 4 Stat
1312, 20 U C § l 31 Ct seq (1970 ed
Air Qualits Act of 1967, $1 Stat 4 S
42 U SC I S57 Ct seq. (1904 cd .
V) , Ens i rotinietital Quahite lunhiros e-
went Act of 1970, S4 Stat 114, 42 U S
C § 4371—1374 (1970 ctl
2 It is 1i hs d ’(l.tICd to h the n itioii ’th
i’oh’ ‘ tht tt . iil effoit should he ii d i ’
to ssi i tit ’ ii itni ii hii’,iiits of th’
OtiTiti sil’ il lnildi ‘ti k ,iiil iC it’ I.
817
full and prompt review of the Secretary’s
action. Pp. 824—825.
4. The case is remanded to the
District Court for plenary review of the
Secretary’s decision. P. 825
(a) The lowei courts’ review was
based on litigation affidavits, which are
not the whole record and are in inade-
quate basis for review. P. 825
(b) In view of the lack of formal
findings, the court may require the ad-
ministrative officials who participated in
the decision to give testimony explaining
their action or require the Secretary to
make formal findings. Pp 825—826
432 F.2d 1307, reversed and re-
manded.
£ohn W. Vardaman, Jr., Washington, Jjo3
D C., for petitioners
Sol. Gen Erwin N Gi iswold, for re-
spondent, Secretary of Transportation
J_J. Alan Hanover, Memphis, Tenn, Jjo4
for respondent, Charles W Speight,
Commissioner’ Tennessee Dept. of High-
ways.
Opinion of the Court by Mr Justice
MARSHALL, announced by Mr Justice
STEWART
The growing public concern about the
quality of our natural environment has
prompted Congress in recent years to en-
act legislation ‘ designed to curb the
accelerating destruction of our country’s
natural beauty We are concerned in
this case with § 4(f) of the Department
of Transportation Act of 1966, as amend-
ed, 2 and § 18(a) ofj he Federal-Aid Jjos
tion l.inds. w ihilhife and w nterfoss I refuges.
and hiistoiic sites The Secretars of
Ti tn.poi tation shall oopci .tte and coi l-
stilt si itli the e I et.Iriec of the Intet ior.
I lousing a id Urban I)evelOl)Inetit. and
grienlture. and ss ith the States in de-
s lopin ti anspOi tatlOti iil.tn and pro-
giants that in(ludC measures to iiaintaiii
ot etihanee the natural bcauts of the
land, tia’etsed Aftet August 23. 1908,
the Secietar) sliqlh ilot fll)ilioiC an 11(0-
gi tin or l)rOJC( t s’ hitchi t equt lCs the use of
my publicls 055 neil litid fioni a public
tat k, ree i cation area oi ss Il(hhlfe itid
401 U.S. 405 CITIZENS TO PRESERVE OVERTON PARK, INC. v. VOLPE
Cttpn 0i SCt 814 (1071)
°1 S Ct —52
-------
91 SUPREME COURT REPORTER
401 U.S. 405
818
Highway Act of 1968, 82 Stat. 823, 23
U.S.C. § 138 (1964 ed., Supp. V) (here-
after § 138). These statutes prohibit
the SecretarY of ransportatiOn from au-
thorizing the useo fe ’d ral funds to fi-
nance the construction of highways
through public parks if a “feasible and
prudent” alternative route exists If
no such route is available, the statutes
allow him to appiove construction
through parks only if there has been “all
possible planning to minimize harm” to
the park
JjoG Petitioners, private citizens as well as
ocal and national conseivatiofl olganiza-
tions, contend that the Secretary has
violated these statutes by authorizing the
expenditure of fedetal fundsG for the
construction of a six-lane interstaEe
highway through a public park in Mem-
phis, Tennessee Their claim was re-
jected by the District Court, 7 which
granted the Secretary’s motion for sum-
w. tcrfov.l iefuge of national. State, ol
local significance as determined b the
r”eih ’i il St te oi bc ii officials has ing
jut icdietioii thereof or :in land fioni an
histoi ic siti’ of ii uionai. State. or local
sign ifi ance is so 1etei mitied b . such of-
(ici.ils unless (1) there is 110 feasible and
prudent aitci native to the use of such
land, and (2) such program includes nil
possible planning to minimize harm to
such path, recreational area, wildlife and
waterfowl efuge or historic site resulting
from such use.” S2 Stat S24, 49 U S.C
§ 1653(f) (1964 ed , Supp V)
3 It is lierebs ile bared to be the national
l)ollcv that sped l effort should be made
to pieserve the natural beauty of the
counti side and public l)ark and recien-
tion lands, wildlife and waterfowl iefugcs,
and hiistoiv sit The Secietar3 of
Transpoi tntion hiail coopei ate auth con-
suit ss itli the Sei etaiies of the lnterioi.
Housiiig and Urban Development. mid
Agi ieultuie. antI ss ithi the States in dc-
eloping tr.lflSIOrtatiOii plans and 1)10-
grams that include measures to maint, in
Cr eiihanec thi. natural beauty of the
lands ti as ci etl ,‘sfter the effc use date
of the [ edei al-Aid Ihigliw a Act of 196S.
die Sccrctar shill not aPPiose ans pro-
gi on oi piojest ss hiichi requires the use
of any iuhhicl os’. ned land from a public
park. recicatiOn aiea, or wildlife and
ss atel foss I refug of national, State. or
local significaii_ is (letcrnhii1c l bs thi
mary judgment, and the Court of Ap-
peals for the Sixth Circuit affirmed. 8
After oral argument, this Court granted
a stay that halted construction and,
treating the application for the stay
as a petition for certiorari, granted re-
view. 9 400 U.S. 939 91 S Ct. 246, 27
L Ed 2d 262 We now reverse the judg-
ment below and remand for further pro-
ceedings in the District Court
Overton Park is a 342-acre city park
located near the center of Memphis The
park contains a zoo, a nine-hole municipal
golf course, an outdoor theater, nature
trails, a bridle path, an art academy, pic-
nic areas, and 170 acres of forest. The
proposed highway, which is to be a six-
lane, high-speed, expressway,’° will sever
the zoo from the rest of the park. Al-
though the roadway will be depressed be-
low ground level except where it crosses
a small creek, 26 acres of the park will be
destroyed The highway is to be a seg-
Federal. State, or local officials has ing
jurisdiction thereof, or an land from an
liistOiie site of national, State, ot local
significance as so determined b such of-
ficials unless (1) there is no feasible and
prudent alternatise to the use of such
land and (2) such program includes all
possible plaiiiiiiig to miniinile harm to
such park, recreational arc.i, wildlife and
waterfowl refuge, 01 historic site resulting
from such use” 23 U SC § 138 (1964
Supp. V)
4. 49 U.S.C § 16-53(f) (1964 ed . Supp V).
23 USC. § 138 (1964 0(1 , Su 1 ip. V).
5 Ibid
6 See 23 USC § 103
7 The case originated in the United States
Di 5 trict Court for the Disti ic t of Colum-
bia On npphicfltiOii of the Secretary. of
Trauspol tation it as ti nnsferred to the
tnited States District Court for the
Westerii Distric t of Tennessee. w hidi en-
tei ed the suinniiii s judgment
8 432 F 2d 1307 (CA 6 1970)
9 This CoHit, ordered the ease to be heard
oii an espedited schedule
10 The propo cd right-of-” a will be 250
to 450 feet w ide aiid ss ill follow the
route of a prc ciitl e t-,ting lioiiacccss
bus route. ss 1w hi .ii lies occasional bus
traffic along a 40- to 50-foot right-of-” a
-------
ment f Interstate Highway 1—40, part
of the National System of Interstate
Jjol andjpefense Highways. 1 ’ 1—40 will pro-
vid Memphis with a major east-west
expressway wP ie wJLj llow easier access
to downtown Memphis from the residen-
tial areas on the eastern edge of the
city. 12
Although the route through the park
was approved by the Bureau of Public
Roads in 1956 ‘3 and by the Federal
Highway Administrator in 1966, the en-
actment of § 4(f) of the Department of
Transportation Act prevented distribu-
tion of federal funds for the section of
the highway designated to go through
Overton Park until the Secretary of
Transportation determined whether the
requirements of § 4(f) had been met.
Federal funding for the rest of the pro-
ject was, however, available; and the
state acquired a right-of-way on both
sides of the park.’ 4 In April 1968, the
Secretary announced that he concurred in
the judgment of local officials that 1—40
should be built through the park And
in September 1969 the State acquired
the right-of-way inside Overton Park
from the city ‘ Final approval for the
project—the route as well as the design
II. See 23 USC 103(d) (1964 ed . Sui’p
V)
12 1-40 ill ni o provide an e\ptCSs bi pi s
foi eist w est traffic througit Meinplii ,
13 At that tune the Bureau of L’nbln
Roads ‘ i a a part of the Department of
Commerce The Department of Traits-
portation Act 49 U.S C § 1651 Ct seq
(1964 ed , Supp V). i liich became effec-
ti%e oil April 1, 1967, transferred the
Bureau to the new Department of Tiati-
rt ation
14 The Sect eta a piro ed these icq U 151
tions in 1967 - .hortli after the effectii e
date of § 4(fi
15 The State patti the Citi $2.0 Xi 000 fat
the 26-a t re i ight of-u iid $200 000 ti
the [ einiuiiis I’ irk C riiniit.s loii to epl ic.
park fa iitie tit it u etc to be destro$ed
b3 tlte htighin a’ The cit of Meinidits
has ii ,etl 1.0i( i iOO of tije-te fuidl-t to it t
tur ,t lion 11,11 ‘i’ie ii uk .ii,d it i-t tultl(i
hated tht it atibtiotuil 1 1 ,uikiattd it iii hi’ ‘ V
qiiltcll it itli ti r( ni.uuitIii_z tuinilet
819
—was not announced until November
1969, after Congress had reiterated in §
138 of the Federal-Aid Highway Act
j hat highway construction through pub- Jjos
Fic parks was to be restricted. Neither
announcement approving the route and
design of 1—40 was accompanied by a
statement of the Secretary’s factual find-
ings He did not indicate why he be-
lieved there were no feasible and pru-
dent alternative routes oi. why design
changes could not be made to reduce the
harm to the park.
[ 1] Petitioners contend that the
Secretary’s action is invalid without such
formal findings 16 and that the Secretary
did not make an independent determin-
ation but merely relied on the judgment
of the Memphis City Council. They
also contend that it would be “feasible
and prudent” to route 1—40 around Over-
ton Park eithei to the north or to the
south. And they argue that if these al-
ternative routes are not “feasible and
prudent,” the present plan does not in-
clude “all possible” methods for reduc-
ing harm to the park Petitioners claim
that 1—40 could be built under the park
by using either of two possible tunneling
methods,’ 5 and they claim that, at a
fathin e of the Sew etai i to innke formal
findings But it hen petitioiiem s nu p1 u mit
is read in the mci e ding light of Conlci •t
thlison. 355 US 41. 7S S Ct 99, 2 1. PAl
20 80 (1957), it is clear that petitioners
hai e also chiihiemugetl the merits of the
Seeretaiy s decision
17 PetitionerS c intend that fotiner Fedct.iI
Ilighiti uiv Admunt-.tratOi Bridu eii s cc-
cotitit of an . prtI 3. 196S, meeting ii ithi
the Meitiphis Citi Council git UI to the
Scutate Subcoinuiittee on Road’, of the
Senate Committee on Public WTorkc ‘U I)-
potts this c-li urge See Ileamings on Ur-
ii in H ,gliwat 1’1 inning I ocatiOn. amid D c—
izii before tile Subcommittee on Ba imi-t of
rite Senate Cointutittee on Public \Vorks
90th Cong. 1 t autO 20 Scu . it pp
47S- 4S0 (190S1
18 l’etiticciiei-, it gue that uthuci u boicil
tunnel 0! .1 cut iuil ( otci tunnel tutu h
i-. u fuhhu uIehie l’tl toute oi’eri0 uftei
ii c—ti uctiomu mlii lie but it Hc- .ponden t-t
tjiiteiiil th t ii ic (Oil t iniflon of a to itnel
hr elt lie i mutt I tod it oull gi c,Vi u lilt I C
401 U.S. 408 CITIZENS TO PR SSERVE OVERTON PARX. INC. v. VOLPE
CItea mOI SCt.814 (19T1)
16 lit lOuci itt—. tigue tit it tin- unit u—- u
i au—cd It t u iutls pl o uhii_— , I—. th
-------
91 SUPR 1 COUET pJ PORTBR
401 U.S. 409
820
J p,J iinimUm, by using advanced drainage
techniques 19 the expressway could be de-
pressed below ground level along the en-
tire route throu ”thE -park including
the section that crosses the small creek.
Respondents argue that it was unneC-
essary for the Secretary to make formal
findings, and that he did, in fact, exe’-
cise his own independent judgment which
was supported by the facts. In the
Di strict Court, respondents introduced
affidavits, prepared specifically for this
litigation, which indicated that the See-
retary had made the decision and that.
the decision was supportable. These af-
fidavits were contradicted by affidavits
introduced by petitioners, who also
sought to take the deposition of a former
Federal Highway Administrator 20 who
had participated in the decision to route
1—40 through Overton Park
The District Court and the Court of
Appeals found that formal findings by
the Secretary were not necessary and re-
fused to order the deposition of the
former Federal Highway Administrator
because those courts believed that prob-
ing of the mental processes of an ad-
ministrative decisionmaker was pro-
hibited And, believing that the Secre-
tary’s authority was wide and reviewing
courts’ authority narrow in the approval
of highway routes, the lower courts held
that the affidavits contained no basis
for a determination that the Secretary
had exceeded his authority
the cost of the pio3e t. ‘.s ould create saIet3
liaijrds. and because of iiicre. es in air
pollution sould not reduce harm to the
i)ark
19 Petitionet , contend that adeciu,itc di aul-
gc could be pro’ ii. d b u i ng me Ii in ica I
tumlt oi sonic form of iii cited siphon
Tlie claim that —uc Ii devices are often
u cd in ( ‘5 mesS ” 1’ (Oiistt Ut tiolt
20 Petitionci t w ant 1 to question foi mi
Iliglto .it diiiint -tr ItOr Bride cl i ‘t ii
17 sepia
21 In addition tit l)qaitincnt of ‘l’iiii,
ioi t tRot A( t flLih.. , the Adu itiiiiStr,ttI c
[ ‘rocedut c Act i ; ,lteable tO proceedings
of the l)cicl i tine’ t of Ti ansitoi tition 40
U C § 1G 5(h) (10(4 ed tipi’ “
[ 2] We agree that formal findings
were not required. But we do not be-
lieve that in this case judicial review
based solely on litigation affidavits was
adequate.
jj 3 ] A threshold question_whether Jjio
petitioners are entitled to any judicial
review—is easily answered Section 701
of the Administrative Procedure Act, 5
U SC. § 701 (1964 ed, Supp V), pro-
vides that the action of “each authority
of the Government of the United States,”
which includes the Department of Trans-
portation , 2 ’ is subject to judicial teview
except where there is a statutory prohi-
bition on review or where “agency action
is committed to agency discretion by
law.” In this case, theie is no indication
that Congress sought to prohibit judicial
review and there is most certainly no
“showing of ‘clear and convincing evi-
dence’ of a * ‘ legislative inteht”
to restrict access to judicial review Ab-
bott Laboratories v Gardner, 387 U S
136, 141, 87 S.Ct 1507, 1511, 18 L Ed
2d 681 (1967) Bi’o snell v. We Shung,
352 U.S. 180, 185, 77 S Ct. 252, 255—256,
1 L Ed.2d 225 (1956) 22
Similarly, the Secretary’s decision here
does not fall within the exception for
action “committed to agency discretion”
This is a very narrow exception Ber-
ger, Administrative Arbitrariness and
Judicial Review, 65 Col L Rev 55 (1965)
The legislative history of the Administra-
22 See n1 .o Rush Coit 369 U S 367
379—3S0, S2 SCt 7S7. 794,7 LE62d 800
(1962)
23 The .eope of this C\( c’lition hi is been the
subject of e tei1- i ’ e (.oinln(nt.iri Set’
t. q , l’ ,erget .‘ohiiii uio trat1i e Arbitr r 1-
IICSS A SvflthIeSN 7S V.ile I. T mc
1969) fei stein. \ (till evice ahilit\ A
F ii ictioiiiil nal si of ‘ Committed to
gi ’iics Dms retion 2 I1,rs I Re ‘ G7
(loGc ) l)viis. Admnimmm-.tiiti ’( ’ Aihitiar-
ilmcs5 N Not Uti a’ Uceice able 1 Mimi
I Ike 643 (10671 Pci get Ahntimiisti .1-
it e A i bitr.ti miicss A ‘ equel 11 [ inn I.
Pet (,01 (1067)
-------
tive Procedure Act indicates that it is
applicable in those rare instances where
“statutes are drawn in such broad terms
that in a iv cas there is no law to ap-
ply.” S.Rep. No. 752, 79th Cong. 1st
Sess., 26 (1945).
Jjii Jj 4 ] Section 4(f) of the Department
TTransportation Act and § 138 of the
Federal-Aid Highway Act are clear and
specific directives. Both the Depart-
ment of Transportation Act and the Fed-
eral-Aid to Highway Act provide that the
Secretary “shall not approve any pro-
gram or project” that requires the use
of any public parkiand “unless (1) there
is no feasible and prudent alternative to
the use of such land, and (2) such pro-
gram includes all possible planning to
minimize harm to such park * *
23 U.S C. § 138 (1964 ed., Supp V); 49
U.S.C. § 1653(f) (1964 ed., Supp. V)
This language is a plain and explicit bar
to the use of federal funds for construc-
tion of highways through parks—only
the most unusual situations are exempt-
ed
Despite the clarity of the statutory
language, respondents argue that the
Secretary has wide discretion They
recognize that the requirement that there
be no “feasible” alternative route admits
of little administrative discretion. For
this exemption to apply the Secretary
must find that as a matter of sound
engineering it would not be feasible to
build the highway along any other
route. 24 Respondents argue, howe er,
that the requirement that there be no
24 See 114 Cong flee. 19015 (statenieiit b
Rep Elolifiel.h
25 n 15 U/H(1
26 See 114 Cong flee 24037 (statement b
en Yarbo iouzl)
27 see. c ‘i Rep No 1340, 90th Cong.
2d Se 1 —1 i 11 fi Rep No 13S4. 90th
Cong 2d 12 S (‘ong & Adinin
\e p 34 2 (1POS)
28 ligi.) jut • ln.toi t iiiihe jt, lii it the
t( i(t,1l t I lit (I) hiiiiit Iii. ci ji’.idii iliOli
to iiifoiiii iti.ii .iijip!ied hit ..t ite un! )o ii
offi I ii. hut i— to go hetond thii . inform
821
other “prudent” route requires the Sec-
retary to engage in a wade-ranging bal-
ancing of competing interests. They
contend that the Secretary should weigh
the detriment resulting from the destruc-
tion of parkiand against the cost of other
routes, safety considerations, and other
factors, and determine on the basis of
the importance that he attaches to these
other factors whether, on balance, alter-
native feasible routes would be “pru-
dent.”
But no such wide-ranging endeavor
was intended. It is obvious that in most
cases considerations of cost, directness
of route, and community disruption will
indicate that parkland should be used for
highway constructionj vhenever possible Jj12
Although it may be necessary to transfer
funds from one jurisdiction to another, 2
there will always be a smaller outlay
required from the public purse 26 when
parkland is used since the public already
owns the land and there will be no
need to pay foi light-of-way. And since
people do not live or work in parks,
if a highway is built on parkland no one
will have to leave his home or give up his
business Such factors are common to
substantially all highway construction
Thus, if Congress intended these factors
to be on an equal footing with preserva-
tion of parkland there would have been
no need for the statutes.
[ 5] Congress clearly did not intend
that cost and disruption of the com-
munity were to be ignored 27 by the
Secretary. 29 But the very existence of
the statutes 29 indicates that piotection
tion a nil ea( h l ii ott ii iiidependent de-
cision 114 Cong flee. 24036—24037
29 The legisi ltiu e Iiistoru of both 4(f)
of the flep.i.i tment of Tran.portntioii Aut,
49 U SC 16.53(f) (1964 ed , Supi V),
and 13S of the Federal-Aid Ilighian ’.
Au t. 2.3 U S C I (1q64 cii Su hi !’
V). is .uiiibiguou.. The legislative
Ol u ini lttce repol N tend to supluol t re-
iuonuieiit’.’ ‘ tee that the t.ittite . . ale
uuerel general dii ecti’. c to the Sec-
rttai ie(Iului tug hut to coti .iuler the
ui1) [ I0t t 1It ( I of iii hI utid ,i utehl a cost
c u iiu lur iunut ’ . distit 1 utiuuti nid other fiutoit
See c q Ill ! \o 1340 00th Cong
uh 19 II fi Rep No 15S4 ‘hOOt
401 U.S. 412 CITIZENS TO PRESERVE OVERTON PARK, INC. v. VOLPE
CIteaK9lSCt.814 (1071)
-------
822
401 U.S. 412
Jj13 of parkiand was to be given par iount
importance. The few green havens that
are public parks were not to be lost
unless there were truly unusual factors
present in a partt lar case or the cost
or community disruption resulting from
alternative routes reached extraordinary
magnitudes. If the statutes aie to have
any meaning, the Secretary cannot ap-
prove the destruction of parkland unless
he finds that alternative routes present
unique problems.
Plainly, there is “law to apply” and
thus the exemption for action “commit-
ted to agency discretion” is inapplicable
But the existence of judicial review is
only the start: the standard for review
must also be determined. For that we
must look to § 706 of the Administrative
Procedure Act, 5 U.S C. § 706 (1964 ed,
Supp V), which provides that a “review-
ing couit shall * * hold unlawful
and set aside agency action, findings, and
conclusions found” not to meet six sep-
J 14 arate standards ° In all casesJ_agency
action must be set aside if the action
was “arbitraiy, capricious, an abuse of
discretion, or otherwise not in accord-
ance with law” oi if the action failed to
meet statutory, procedural, or constitu-
tional requirements. 5 U.S C § 706(2)
Cong. 2(1 Se . 12 St.iteiiients b ’ . pio-
i nent of the statutes as well as the
Seiiite omliiIttee report on § 4(f) lfl(1l-
ente, liowe’.er that the Secietars was to
htn’. limited qiitlioritv See, c q , 114
Cong Rec. 24033—24037, S.flep No.1659.
89th Cong. 2d Sess , 22. Sec also JIlL
Conf Rep No 2236. 89th Cong 2d Se ’.s.
2 B c ns of this ambiguit it is clear
that v. e mu—z look ‘primal ii’. to the stat-
utes thicinsel’. (‘ S to find the Iegisl.iti’. c In-
tent
30 To the t. nt Ilice’ ’ , it ‘. to ( II’ , i-,ioit . n-I
“ . hj ii pi e eijr.’.l the 0”. II”.’. lug ( ourt shah
decide all rd.”. lilt (iue-.( lou’- of I , ilitci
pict constitutiouial and t , tjutor ’ . In 051
sbus, :111(1 d€tet min e the beau ing or ap—
ithicabuhit’. of tin’ tel ins of au agen’. a-
tbOiu ‘l’ije IC’. II’. ’ . lug (0111 t ‘—it sit—
‘(1) COIlIp’ I agc ’uut S t( tIOtI unit’.’. full’.
5’ itluii ld 01 IIIIIC’lSOuI IhI del s’.cuh .‘uil
(2) hold uniaw ful .urid set .isi’le
.igeun ‘, action fundung- and sonclu ions
found to be—
(A), (B), (C), (D) (1964 ed., Supp. V).
In certain narrow, specifically limited
situations, the agency action is to be set
aside if the action was not supported by
“substantial evidence.” And in other
equally narrow circumstances the review-
ing court is to engage in a de novo review
of the action and set it aside if it was
“unwarianted by the facts” 5 U.S C.
§ 706(2) (E), (F) (1964 ed, Supp. V).
Petitioners aigue that the Secretary’s
approval of the construction of 1—40
through Overt&n Park is subject to one
or the other of these lattei two standards
of limited applicability First, they con-
tend that the “substantial evidence”
standard of § 706(2) (E) must be ap-
plied In the alternative, they claim that
§ 706(2) (F) applies and that there
must be a de novo ieview to determine
if the Secretary’s action was “unwar-
ranted by the facts.” Neither of these
standards is, howevei, applicable.
[ 6, 7] Review under the substantial-
evidence test is authorized only when the
agency action is taken pursuant to a
rulemaking provision of the Administra-
tive Procedure Act itself, 5 U.S C. § 553
(1964 ed., Supp. V), or when the agency
(A) nrbutrrir’., (api i( IOUS iii abuse of
diseretion or other’.’. ise Rot in -ordance
\‘. itht 1 ,iw
(B) coiltu ar’. to coui tituutuonal i ighut.
pow Cr, pius uhege. or lunnunnit’.
(C) in e oec’, of ctatiutor juri— .huotuoi i.
authiou it’.. or htriuut.itiouis or shuoi t of stat-
utory right
( F l) s ’ . ithotit obscu ince of l(IOCClllure
required b’. h w
(El unsull(i rted b’. substanti ul es i-
in a (ase suubje(t to SC(tuflfls 6
auth 7 of titis title 01 otitcuw i e be
I C ’ .’. ( (l on the I ’C1 01(1 of ‘iii agent’. lto’u rilIg
pi os ded In st ttute 01
(1’) 111155.111 ,iitte.l hu the fict, to tite
e\tCuit that tin’ f N ai C subje t to frI ‘.1
110’. 0 li’. tin’ IC’. L’S’ uu lg (0111
Iui nu ukiijg tin’ foie o ing (iCtelunh Il 1110115.
the coni t -,hjqhi uc’ jew the w hole iesou d Oi
thuo e l juts of it ( Ite(l I)’. I Put’ 111(1
thue account siethl he t.ikeuu of thuc I uhe of
1(1 ejuihicial cr1 or j 1’ C ‘ u( (191; 1
Cl ‘.iipp \
91 SUP1 M COURT REPORTER
-------
action is based on a public adjudicatory
hearing. See 5 U.S.C. § 556, 557 (1964
ed., Supp. V). The Secretary’s decision
to allow the’ nditure of federal funds
to build 1—40 through Overton Park was
plainly not an exercise of a rulemaking
function. See 1 K. Davis, Administrative
Law Treatise § 5 01 (1958). And the
only hearing that is required by either
the Administrative Procedure Act or the
J i5 statutes regulating the d ibution of
federal funds for highway construction
is a public hearing conducted by local of-
ficials for the purpose of informing the
community about the proposed project
and eliciting community vews on the
design and route. 23 U.S C. 28 (1964
ed, Supp V). The hearing is i nadjudi-
catory, quasi-legislative in natu e It is
not designed to produce a record that is
to be the basis of agency action—the bas-
ic requirement for substantial-evidence
review See H.R Rep No 1980, 79th
Cong, 2d Sess
[ 8] Petitioners’ alternative argu-
ment also fails De novo review of
whether the Secretary’s decision was
“unwarranted by the facts” is authorized
by § 706(2) (F) in only two circum-
stances First, such de novo review is
authorized when the action is adjudica-
tory in nature and the agency factfind-
ing procedures are inadequate. And,
there may be independent judicial fact-
finding when issues that were not be-
fore the agency are raised in a proceed-
ing to enforce nonadjudicatory agency
action H.R Rep.No 1980, 79th Cong, 2d
Sess Neither situation exists here
[ 9, 10] E en though there is no d c
novo review in this case and the Secre
tary’s approval of the route of 1—40 does
not have ultimately to meet the sub-
stantial-evidence test, the genet ally ap-
plicable standards of § 706 requlle the
i-e ie Ing couit to engage in a substan-
tial inquiry Certainly, the Secretaiy’s
823
decision is entitled to a presumption of
regularity. See, e. g., Pacific States
Box & Basket Co. v. White, 296 U.S.
176, 185, 56 S.Ct. 159, 163, 80 L.Ed. 138
(1935); United States v. Chemical
Foundation, 272 U.S 1, 14—15, 47 S Ct
1, 6, 71 L.Ed. 131 (1926) But that
presumption is not to shield his action
from a thorough, probing, in-depth re-
view
The court is first required to decide
whether the Secretary acted within the
scope of his authority Schilling v
Rogers, 363 U S. 666, 676—677, 80 S Ct.
1288, 1295—1296, 4 L Ed 2d 1478 (1960)
This determination naturally begins with
a delineation of the scope ofj he See- J .ji6
retary’s authority and discretion L
Jaffe, Judicial Control of Administra-
tive Action 359 (1965) As has been
shown, Congress has specified only a
small range of choices that the Secre-
tary can make. Also involved in this
initial inquiry is a determination of
whether on the facts the Secretary’s
decision can reasonably be said to be
within that range. The reviewing court
must consider whether the Secretary
properly construed his authority to ap-
prove the use of parkland as limited to
situations where there are no feasible
alternative routes or where feasible al-
ternative routQS involve uniquely dif-
ficult problems And the reviewing
court must be able to find that the Sec-
retary could have reasonably believed
that in this case there are no feasible
alternatives or that alternatives do in-
volve unique problems
Scrutiny of the facts does not end,
however, with the determination that the
Secretary has acted within the scope of
his statutory authority. Section 706(2)
(‘ ) requires a finding that the actual
choice ‘made was not “aibitraiy, capli-
cious, an abuse of discretion, oi other-
wise not in accoidance with law “ 5
USC § 706(2) (A) (1964 ed, Supp V)
To make this finding the court must con-
401 U.S. 416 CITIZENS TO PRESERVE OVERTON PARK, INC. v. VOLPE
Cite asOl S ct. 814 (1971)
-------
824
sider whether the decision was based
on a consideration of the relevant factors
and whether there has been a clear er-
ror of judgment Jaffe, supra, at 182.
See McBee 296 F.2d 235, 237
(CA 6 1961); In re Josephson, 218 F 2d
174, 182 (CA 11954), Western Addition
Community Organization v. Weaver, 294
/F Supp 433 (ND Cal. 1968). See also
Wong Wing Hang v Immigration and
Naturalization Serv, 360 F 2d 715, 719
(CA 2 1966). Although this inquity in-
to the facts is to be searching and care-
ful, the ultimate standard of review is a
nariow one The court is not empow-
ered to substitute its judgment for that
of the agency
J 17 j he final inquiry is whether the Sec-
retary’s action followed the necessary
procedural requitements Here the only
procedural erroi’ alleged is the failure of
the Secretaiy to make formal findings
and state his reason for allowing the
highway to be built through the park
[ 11] Undoubtedly, review of the Sec-
retary’s action is hampered by his fail-
ure to make such findings, but the ab-
sence of foimal findings does not nec-
essarily require that the case be remand-
ed to the Secretary. Neither the Depart-
ment of Transpoitation Act nor the Fed-
eral-Aid Highway Act requires such for-
mal findings. Moreover, the Adminis-
trative Proceduje Act requirements that
there be formal findings in certain rule-
making and adjudicatory proceedings do
not apply to the Secretary’s action here.
See 5 U S.C § 553(a) (2), 554(a) (1964
ed, Supp V) And, although foimal
findings may be required in some cases
in the absence of statutory directives
when the natuic of the agency action is
ambiguous, those situations are lare
See City of Yonkers v United States,
320 U S. 685. 64 S Ct 327, 88 L
Ed 400 (1944) . Arneiican Tiucking
31 The iegtil.ition a . piOiiiiitg.itc ,j l’Ut (I
ant to uiri 01 d c i 11314. d ted
M.iudi 1q7 0 Ji b’cd 1 g 4247. ‘ IiicIt
lTi t ructed .111 tt’Ie rat agcncics to i itiatc
ro(_c(turc riccic.l to lirci r liii Lou—
401 U.S. 416
Ass’ns v. United States, 344 U.S. 298, 320
73 S Ct. 307, 319—320, 97 L.Ed. 337
(1953). Plainly, there is no ambiguity
here; the Secretary has approved the
construction of 1—40 through Overton
Park and has approved a specific design
for the project
Petitioners contend that although
there may not be a statutory require-
ment that the Secretary make formal
findings and even though this may not
he a case for the reviewing court to im-
pose a requirement that findings be
made, Department of Transportation
regulations require them This argu-
ment is based on DOT Order 5610 1, ’
which rec qfr s the Secretary to make
forma Jftr dings when he approves the
use of p kland for highway construction
but whi .h was issued after the route for
1—40 was approved. 39 Petitioners argue
that even though the order was not in
effect at the time approval was given to
the Overton Park project and even
though the order was not intended to
have retrospective effect the order repre-
sents the law at the time of this Court’s
decision and under Thorpe v Housing
Authority, 393 U.S 268, 281—282, 89 S.
Ct 518, 525—526, 21 L.Ed.2d 474 (1969),
should be applied to this case.
The Thorpe litigation resulted fiom an
attempt to evict a tenant from a federal-
ly funded housing project under circum-
stances that suggested that the eviction
was prompted by the tenant’s objections
to the management of the project De-
spite repeated requests, the Housing Au-
thority would not give an explanation for
its action The tenant claimed that the
eviction interfered with her exercise of
First Amendment rights and that the
failure to state the reasons for the evic-
tion and to afford her a hearing denied
her due process After denial of relief
in the state courts, this Couit granted
ceitioiari “to consider — hethet [ the
tenant] as denied due piocess by the
dc l , aiil urograrn, too arl meeting ia-
tuonal cavil ouuunentat god-.
91 SUPR1 ME COURT REPORTER
32 1)O’L’ 01 dci ill (11 0 l Ii((l on Octo-
b r 7 1970
-------
Housing Authority’s refusal to state the
reasons for her eviction and to afford
her a hearing at which she could con-
test the sufficiency of those reasons.”
393 U.S., at 272, 89 S.Ct., at 520.
WhiIe tfl c ae- was pending in this
Court, the Department of Housing and
Urban Development issued regulations
requiring Housing Authority officials to
inform tenants of the reasons for an
eviction and to give a tenant the op-
portunity to reply The case was then
remanded to the state courts to deter-
mine if the HUD regulations were ap-
plicable to that case. The state court
held them not to be applicable and this
Court reversed on thej round that the
general rule is “that an appellate court
must apply the law in effect at the time
it renders its decision.” 393 U S , at
281, 89 S.Ct, at 526
While we do not question that DOT
Order 5610 1 constitutes the law in ef-
fect at the time of our decision, we do
not believe that Thorpe compels us to
remand for the Secretary to make formal
findings. 33 Here, unlike the situation
in Thorpe, there has been a change in
circumstances—additional right-of-way
has been cleared and the 26-acre right-
of-way inside Overton Park has been
purchased by the State. Moreover, there
is an administrative record that allows
the full, prompt review of the Secretary’s
action that is sought without additional
delay which would result from having
a remand to the Secretary.
[ 12) That administrative record is
not, however, before us. The lower
courts based their review on the litiga-
tion affidavits that were presented
These affidavits were merely “post hoe”
rationalizations, Burlington Truck Lines
v United States, 371 U S 156, 168—169,
33 E en if forniul findings b 3 the Score-
tar; v. ci e nandatori, the proper course
would be to rtriand the case to tie Die-
triet Court diri -ting that court to orilci
tIe Secretor ; to ma&e formal findii
See 11 ItoberNo: & F Kirk-lain. Juris-
diction of the uiiren1e Court of the Unit-
ci State-, 44g. p 029 (Il Wolfson &
P Kuriancl e l 1951) Of course, the
825
83 S.Ct. 239, 245—246, 9 L.Ed.2d 207
(1962), which have traditionally been
found to be an inadequate basis for
review. Burlington Truck Lines v.
United States, supra, SEC v. Chenery
Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459,
87 L.Ed. 626 (1943) And they clearly
do not constitute the “whole record”
compiled by the agency, the basis for
review required by § 706 of the Admin-
istrative Procedure Act. See n 30,
supra.
J,Thus it is necessary to remand this Jjzo
case to the District Court for plenary
review of the Secretary’s decision. That
review is to be based on the full admin-
istrative record that was before the Sec-
retary at the time he made his decision
But since the bare record may not dis-
close the factors that were considered or
the Secretary’s construction of the evi-
dence it may be necessary for the Dis-
trict Court to require some explanation
in order to determine if the Secretary
acted within the scope of his authority
and if the Secretary’s action was justi-
fiable under the applicable standard
[ 13, 14) The court may require the
administrative officials who participated
in the decision to give testimony explain-
ing their action Of course, such inquiry
into the mental processes of administra-
tive decisionmakers is usually to be
avoided United States v Morgan, 313
U S. 409, 422, 61 S Ct. 999, 1004—1005,
85 L Ed. 1429 (1941). And where there
are administrative findings that were
made at the same time as the decision, as
was the case in Morgon, there must be a
strong showing of bad faith or improper
behavior before such inquiry may be
made. But here there are no such for-
mal findings and it may be that the only
way there can be effective judicial re-
District Court i ’, not prohibited frons
remanding tie case to tie Secret ,ii-t
. 5cc mufra, at S2
34 Tue SoIi itor Genera) no urges that in
order to avoid additional delay tile proper
course is to remand the case to the Dis-
trict Court for review of tie full admin-
istrative record
401 U5. 420 OITIZ NS TO PR ESBRVE OVERTON PAP. , INC. v. VOLPB
Cite s 918 Ct 814 (1971)
em SC —52’ ,’,
-------
826
401 U.S. 420
view is by examining the decisionmakers
themselves. See Shaughnessy v. Ac-
cardi, 349 U.S. 280, 75 S.Ct. 746, 99
L.Ed. 1074 (1955).
The District C urt is not, however, re-
quired to make such an inquiry. It
may be that the Secretary can prepare
formal findings including the informa-
tion required by DOT Order 5610 1 that
will provide an adequate explanation for
his action. Such an explanation will,
to some extent, be a “post hoc rationali-
zation” and thus must be viewed criti-
cally. If the District Court decides that
Jj21 additional explanation is necessary j hat
court should consider which method will
prove the most expeditious so that full
review may be had as soon as possible
Reversed and remanded
Mr. Justice DOUGLAS took no part
in the consideration or decision of this
case
Separate opinion of Mr. Justice
BLACK, with whom Mr. Justice BREN-
NAN joins
I agree with the Court that the judg-
ment of the Court of Appeals is wrong
and that its action should be reversed.
I do not agree that the whole matter
should be remanded to the District Court
I think the case should be sent back to
the Secretary of Transportation. It is
apparent from the Court’s opinion today
that the Secretary of Transportation
completely failed to comply with the duty
imposed upon him by Congress not to
permit a federally financed public high-
way to run through a public park “unless
(1) there is no feasible and prudent al-
ternative to the use of such land, and
(2) such program includes all possible
I. Sec 23 U SC. § 12S (1964 ed, Supp
V) ind regulations promulgated there-
under, 34 Fed fleg 727—730 (1969)
planning to minimize harm to such park
* * b.” 23 U.S.C. § 138 (1964 ed.,
Supp. V); 49 U.S.C. § 1653(f) (1964
ed., Supp. V). That congressional com-
mand should not be taken lightly by the
Secretary or by this Court It represents
a solemn determination of the highest
law-making body of this Nation that the
beauty and health-giving facilities of our
parks are not to be taken away for pub-
lic roads without hearings, factfindings,
and policy determinations under the su-”
pervision of a Cabinet officer—the Sec-
retary of Transportation The Act of
Congress in connection with other fed-
eral highway aid legislation,’ it seems
to me j alls for hearings—hearings that J 2z
a court can review, hearings that demon-
strate more than mere arbitrary defiance
by the Secretary. Whether the findings
growing out of such hearings are labeled
“formal” or “informal” appears to me
to be no more than an exercise in seman-
tics. Whatever the hearing require-
ments might be, the Department of
Transportation failed to meet them in
this case. I regret that I am compelled
to conclude for myself that, except for
some too-late formulations, apparently
coming from the Solicitor General’s of-
fice, this record contains not one word
to indicate that the Secretary raised even
a finger to comply with the command of
Congress. It is our duty, I believe, to
remand this whole matter back to the
Secretary of Transportation for him to
give this matter the hearing it deserves
in full good-faith obedience to the Act
of Congress. That Act was obviously
passed to protect our public parks from
forays by road builders except in the
most extraordinary and imperative cir-
cumstances 2 This record does not dem-
onstrate the existence of such circum-
stances I dissent from the Court’s fail-
u ,e to send the case back to the Secre-
tary, whose duty has not ye been per-
formed.
Sec also San Antonio Conservation So-
ciet Te’ as IIigli a Department, 400
US 963, 972, 91 S Ct 368, 370, 27 L.Ed
2d 388, 39G (1970) (dissents from the
(lenial of certiorari)
91 SUPREME COURT R1 PORTER
-------
401 U.S. ____
Mr. Justice I3LACKMUN.
I fully join the Court in its opinion
and in its jient. I merely wish to
state the obvious: TI) The case comes
to this Court as the end product of more
than a decade of endeavor to solve the
interstate highway problem at Memphis.
(2) The administrative decisions under
attack here are not those of a single
Secretary, some were made by the pres-
ent Secretary’s predecessor and, before
him, by the Department of Commerce’s
Bureau of Publicj oads (3) The 1966
Act and the 1968 Act have cut across
former methods and here have imposed
new standards and conditions upon a
situation that already was largely de-
veloped
This undoubtedly is why the record
is sketchy and less than one would ex-
pect if the project were one which had
been instituted after the passage of the
1966 Act.
401 U.S. 901
Anthony William FAIRCHILD, petitioner,
v. UNITED STATES. No.
Facts and ol)inion, 10 Cir., 435 F.2d
972.
Feb. 19, 1971 The renewed appli-
cation for stay presented to Mr Jus-
tice White, and by him referred to the
Court, is denied
wcowmij’j DECISIONS 827
Cite aa9l 8.Ct. (1971)
-------
• Preparing a Witness
• to Testify
By Sonya Hamlin
BEFORE a witness becomes a witness, he
or she is just a vulnerable person. Under-
standing what this means is the single
biggest factor in successfully preparing a
Wäfl for an appearance in court.
We are now such a product-oriented
society that in our zeal to go for the
gold” or to “get the job done,” we are
our talent for empathy. While we
our goals, we fail to notice and
.stand how another person feels. \Ve
• start with that understanding if we
• to change, teach or correct anyone
to do our bidding.
As ‘you begin the preparation of a
witness for examination in court, both of
you bring a set of conditioned responses
to the task. Yours come from your experi-
ence as a lawyer. Those of the witness
come from the experience of growing up,
going to school, working and living in
these times. To find a common meeting
ground. let’s look at the concerns and
expectations each of you brings and how
they affect the preparation process.
Direct examination
Let’s start with the lawyer’s biggest
concerns.
“What will the witness do on the
stand?” From long and painful experi-
ence you know what happensto the
best-laid plans. Although you know
where you want to go, witnesses—
unpredictable and fallible—can cause
you to back up, fill in, recap, change
course. As you start a process that may
backfire, your anxiety level is high and
trust level is low.
a ustn’t lose control of the testimo-
Your anxiety is heightened by the
d to get certain deeds and t ’vents into
tesiim’jnv in a ce-tam wz , to build
your case as well as to control what the
cross-examination can use against your
witness.
“This Is complex testimony and must be
very orderly and clear to the jury.” Most
people are not organized thinkers with a
good sense of how to present informa-
tion. They ramble or get too involved in
unimportant details. Your prodding and
directing must be subtle in the court-
room, so you face a large task in prepar-
ing so the witness understands and learns.
“Will the witness be solid and credible
enough, for the jury and able tQ under-
stand the cross-examination?” You’ve
seen good direct examination damaged
by a sharp cross-examiner and an intimi-
dated witness, and the situation has beer
beyond your control. The intangible stuff
of which credibility is made, the way the
jury will perceive your witness and the
witness’s own capacity to deal with con-
flict all contribute to a sense of powerless-
ness.
Anxieties of the witness
So you enter the preparation process
expecting problems, looking for the wit-
ness’s weaknesses and needing to control
what happens. But if you’re worried,
consider how the witness must feel. You 4— ’ ”!7
cannot begin to work your wisdom with- .
out knowing the most basic anxieties and
priorities of the witness. Here are some
examples: .. -
“This is it. This counts.” The serious-
ness, what’s at stake and the fact that the
witness will have only one chance create a
rumble of anxiety that can blot out what
you’re saying.
“What impression will I make? ‘ill
they like me?” From early adolescencç —
we design the image of a person of unac- , _______
ceptables (nose too long, body too fat,
voice too high) that stays with us forever. 3, ,;-
That and the popularity thermometer we
all use in growing up come into full play’
as a witness imagines asking for accept
ance by the jury.’ Beyond the text of th .‘
examination, other needy voices ar&
clamoring for the witness’s attention. .
“I will be In the spotlight. perform. ” ‘*!**
iflg.” Everyone has pride and would like -
to do well, especially in public. Yet few of
us have the natural ability to perform or ‘ ‘ --
the desire to be front and center. People —
usually carry memories of past embar— . ,J,
rassments on stage or don’t have that ‘ “
experience at all.
‘Tm afraid I’ll forget what you’ll teach
me. What if I make a mistake?” Early : ‘ ‘ J
learning fears from school days and the
knowledge that the witness must learn
facts and sequences from you work
against an ,.open mind and a confident
productive learner.
“Can’ I handle cross-examination?”
Most people fear conflict. Cross-exami-
nation is conflict against a highly skilled
adversary who sets unpredictable traps.
The potential for loss of face and, even
8C u nal, Th aw er’s Magazine
WuStr ”.ions by Guy Wolek
-------
worse, loss of the case creates tremen-
dous fear.
Consider all these issues that work on a
witness’s mind and emotions. Until you
clear them away, they will block anything
‘ry to teach.
,aration techniques
Vhat are some of the ways you an
.tend with these anxieties to create a
...omf9rtable atmosphere and a good
working relationship in which the witness
can learn and be prepared?
Environment. Everyonç creates visual
“turf.” Your office, working tools, desk,
phone, secretary, pictures and diplomas
on the wall all underscare who you are
and that this is your niche in the world.
Although it spells competence to your
witness, it also says this is not the wit-
ness’s niche. The attendant sense of loss
tf power is not a good way to begin a
relationship of mutual trust and interde-
pendence.
Step one is.to get out from behind your
desk and go to a neutral corner—either a
comfortable seating area in your office or
a small conference room. Offer some
coffee. Feeding and nurturing are good
postures for a would-be teacher
Stage fright. The best way to handle
fear is to identify it, state it and discover
why it’s there. The worst way is to say,
“There’s nothing to be afraid of” and
“Don’t worry, just listen to me.” This
‘“ creates guilt and embarrassment
feeling inept, emphasizes depen.
.y and inadequacy and does not dis.
fear.
Explain that stage fright is normal nd
that everyone becomes nervous, even
you. The witness fears a bad perfor-
mance, far from perfect. Tell the witness
there is no “perfect 10,” that everyone
testifies in a different way. Tell the wit-
ness that he’s an expert because this story
happened to him and he knows more
about it than anyone on earth. Tell him
• you understand his fears and that’s why
you are preparing him so he’ll be com-
fortable in court. -
Ask exactly what scares the witness,
is. Imagined and anticipated. Not
only will you know what to work on but
you’ll create an environment in which
telling the truth is safe, so that when you
hit, places that confuse, the witness will
feel free to stop and ask for some expla-
nation, instead of pretending to under-.
stand and tacitly agreeing. We all hate to
admit weakness. Make, a non-judgmental
space for the witness ta be straight with
you. Remember, a scared witness is an
unthinking, unconvincing witness.
Take the witness to the courtroom. 1m-
agining the courtroom is pften worse than
reality. Demystify the courtroom to re-
lieve anxiety. Let the witness sit in. the
witness chair and find the most comfort-
able, relaxed posture to adjust to the
scene.
Make the witness’s role clear. People
do better when they know where they’re
going. what they’re doing and why. Ex
plain that when questions are an swered in
court, the witness is giving, jurors the
information on which to base their deci-
sions. Tell the witness that juries, like all
of us. have a hard time listening, learning
and paying attention. That helps you
explain why you both need so find the
best, clearest and most interesting way to
tell the jury the story. That’s the reason
for this preparation.
Explain the jurors. Describe the audi-
ence fully. Explain that jurors identify
with witnesses. They will understand the
witness’s life, work, needs and fears be-
cause they have similar ones. The’s’ don’t
expect a polished performance. Just
speaking from the heart with energy and
clarity will work.
Explain your themes. Without knowing
where you mean, to go with the case, the
witness unwittingly can leave out the
most important parts of the testimony.
Explain. what needs to be emphasized,
what the key issues are and what the
cross-examiner will try to prove or dis.
prove. Make the witness a participant,
not a wind-up toy.
Explain the organizatIon of the exami-
nation. Show how you will go from per-
sonal history to a background of the
event to specific descriptions, and so
forth. Show how you will keep the wit-
ness organized with topic sentences and
transitions. Explain how you will fodus on
and call for details as needed so the
witness needn’t tell it all in the first
answer.
Show the witness how you’ll help If
something is forgotten. Show the witness
how you’ll interrupt to redirect, if things
go astray and that your interruption is
intended to focus or clarify the story.
Cross-examination
In cross-examination,as in direct, both
you and your witness have many con-
cerns. For you the major one is on which
points opposing counsel will focus, how
you can stop that and what to do in
redirect. These are mainly professional,
factual concerns, although there is an
element of anxiety, and you bring your
rational, experienced lawyer’s mind to
bear on them.
For your witness, however, the key
conc’erns are deep-set emotional ones.
Without understanding either the tactics
of cross-examination or ‘knowing what
testimony will.be extracted on direct ex-
amination, only the witness’s intuitive,
feeling self will surface in contemplation
of cross-examination. Here are some of
the likely feelings:
“It’s an unfair fight.” A well-prepared
professional can make vulnerable layper-
sons feel like underdogs, lessening their
powers and courage.
“What will they ask? Can I answer it?”
Throughout direct examination, the wit-
ness worries about what has been said
that can be used in cross. Not only does
82 ABA Jour* al The Law)er’s Magazine
-------
this increase anxiety, but it can also pam-
lyze the witness with self-criticism in try-
ing to filter answers on direct.
“What will the questions mean? Where
are they leading?” Trying to second-
guess where the cross-examiner may be
going confuses the witness and impairs
careful listening.
“No one can help me.” The sense of
aloneness fills the witness, who feels vul-
nerable and isolated, with no support
from you.
“But I’m tellIng the truth!” The wit-
ness will, be attacked. Veracity will be
questioned. The natural tendency is to
become defensive, which makes people
look guilty even if they’re not, or to
become aggressive and try counter-
punching. Neither works well for the
jury.
“Be a man” or “I’m only a woman.”
Historically and culturally, men and
women have been trained to respond
differently to overt aggression. What
they’re supposed to do and how they in
fact feel creates great conflict.
Society has taught men to stand up and
fight back. Yet many men do not like
conflict and wish to withdraw. Confront-
ed by the aggression of cross-examina-
tion, with no other viable role model,
they feel called upon to “tough it out”
and, hating that, fear they will do it
badly. Nor do they feel good about ad-
mitting it and asking for help, especially
from another man.
Women have not seen many role mod-
els for aggressive behavior, although this
is changing. The traditional feminine role
is nurturer and bystander, not combat-
ant, and the new modes are not yet
universal. As they anticipate cross-
examination, women often fear aggres-
sion and feel powerless to fight back as
they hear the old voices telling them to
“be nice, be ladylike.” They generally
don’t have ready, comfortable, strong
responses to conflict.
These attitudes toward conflict and the..
pressure of all these concerns can color
sharply what you want your witness to
hear.
Preparation techniques
To prepare for cross, as in preparing
for direct examination, the conditioned
responses and fears of the witness must
be recognized and addressed first. Then
give the witness the tools to fight back.
Explain ihat opposing counsel wants.
Explaining the closed-question tech-
nique, the probing for an admission,
he os tell the witness what to expect He
also needs to unde:stand your view of
what the cross-examiner :..ll go f r Be
sure h”e understands the “what” and the
“why” before you go on.
Explain the psychology of the jury.
Jurors will respond with sympathy for the
witness if there’s a very aggressive cross,
particularly if you’ve done your direct
well, because they already feel some con-
nection to the witness. Explain that jur-
ors identify with laypersons against pro-
fessionals and that it’ S the American
custom to root for the underdog. Ex-
plaining all this gives the witness courage
and a sense of rapport with the jury.
Jurors like to see sure-footedness and
someone hold ground calmly and with
conviction. Jurors don’t understand all
the fine points of cross. They just geta
general picture of integrity and who’s
winning.
Explain the victim mentality, the feeling
of being bullied. Find out how your wit-
ness feels about and handles conflict.
With passivity, defensiveness, avoidance,
aggression? Don’t be judgmental. Give
the witness permission to feel any way at
Explain the psychology
of the jury. Explain
that jurors Identify
with layperso’ns against
professionals and that
it’s the American custom
to root for the underdog.
all—just get it out so you can explore it
together. Supply techniques that will fit
the witness’s personality and style and
make the individual feel comfortable an-
swenng back.
Give the ltness some pOwer. Cross-
examination seems so one:sided that it is
hard for a witness to feel powerful too.
Provide a mental image for the witness to
picture when crowded or put upon by the
opposing counsel—to imagine gently but
firmly pushing the lawyer back. Teach the
witness to take a breath or to sit up and
re-energize in order to regain forward
momentum and stability.
If the questioner pushes for an Impossi-
ble yes or no, explain that the witness
may reply that “I can’t answer it that
way” and then qualify thc answer
A goo’i response to a complex question
is “Which part do you want me to answer
first?” This is better than trying to answer
everything, hoping to get it all straight.
Witnesses should see themselves as
having power over their answers. Cross-
examination doesn’t require acquies-
cence but rather thought and considera-
tion before answering.
Depersonalize the attacks. Explain that
the witness stands in the way of the
opposing lawyer making his or her case.
The witness under attack must think “It’s
not me, it’s what I’m talking about” or
“He’s attacking issues, not a person.”
This helps handle those naturally defen-
sive feelings and sense of personal hurt.
It moves the witness toward positive,
attentive thinking.
Teach the witness to listen, It’s human
nature to anticipate the questions, espe-
cially when you feel vulnerable. Show
how a lawyer can hide a meaning in a
question. Make the witness learn to listen
and think before answering and to wait
for the end of a question before deciding
on an answer. Do a drill of cross-
examination, stopping and asking what
the witness thinks you meant and where
you’re going with a line of questioning.
Teaching techniques
To teach, you must be aware of the
personal and emotional effect you have
on the witness. If the witness is not
comfortable or willing or doesn’t know
what you’re doing or why, your instruc-
tions will fall on deaf ears.
Role-play all situations, This lets the
witness experience direct and cross at first
hand, and it creates a base for all you’ve
said and will say It’s the only way the
witness can really experience and imagine
— in advance, and it gives you a clear view
— of possible problems.
Videotape and replay. This lets the
witness see what works and what doesn’t,
based on your previous explanations, and
is the most effective way to help the
- witness understand and change The ob-
jective tape, not you, becomes the critic
It’s easier for the witness to absorb and
much more eloquent and persuasive.
Don’t give general instructions. Be
careful not to say “Talk louder” or
“Don’t talk too long on this subject.”
These are too vague and create anxiety.
How long is “too long”? How’ loud is
“louder” Be specific and give reasons
Show how you’ll fix it if it happens in
court.
Don’t o crdirect, Don t squash the wit-
ness in preparation Too much coaching
and criticism can paralyze the witness and
make the witnc s too self-critical to speak
and think well
A ’ril ‘985 - Volume 71 83
-------
CONSTRUCTION
AND
DESIGN LAW
DIGEST
This comprehensive digest
discusses and analyzes the
1500-plus construction.and design
case reported each year in the
U.S. Topically organized,
CONSTRUCTION AND DESIGN
LAW DIGEST covers contracts,
financing, damages, arbitration,
and much more. Expert critical
commentary, practice tips and
useful advice are induded for
important and unusual cases
discussed.
Annual Subscription $395.00
11 Monthly Issues
Plus One Cumulative
Bound Volume Per Year
ORDER TODAY
• Use the Subscription
Coupon Below
Or Call Toll-Free 1-800-446-3410
THE
X MPANY
A pLdi *g diaty a ’
POST OFFICE BOX 7587
CHARLOTrESVILLE 1 VA 22906
Please enter my order for sub-
scxiptions to CONSTRUCTION AND DE-
StGN LAW DIGEST at $395.00 each in-
duding binder. 1 understand that I may
cancel my subscription at any time after
receipt of my first paid issue brA refund
on the remaining issues.
o payment enclosed
o bill me (TERMS: Net 30 days)
o send a descriptive brochure
Name
Address __________________
.1
—. •
- . r • __
• __•_4__•••_,•a__ .! -
• A.-.
- •T3$
T
- .
• : - .. . . - .-. *-.
‘ c i. -
Be positive In a ny criticism. Tell the’
witness what’s right.and what’s wrong. If
something won’t work, explain how the
jury, the ultimate audience, will see and
hear it. This is good môtivat.io t for
change.
Isolate. the witness. Get the witness
used to being in a chair away from a desk
or table. You want the witness to experi-
ence isolation and lick that anxiety before
going to court.
Do a tough, aggressive cross-
examination. Stand behind a lectern as a
cold and lethal cross-examiner or charge
forward full of accusing voice and ges-
ture. How does thc witness react to the
worst that can happen? Then teach the
countering techniques.
Witness come to preparation filled
.:i:h arxietes and needs. Unless you
discover these and use them as the base
on which to build and teach, your witness
cannot hear you because of the sound of
inner turmoil.
Get to know your witness. Your work-
ing through the witness’s conditioned at-
titudes and anxieties can make a much
more copperative and aware witness.
Both of you will form a much more
effective team in the courtroom.
_kwnd
(Sonya Hamlin of New York City is a
lecturer and cor sulzanz on communica-
tio LS skills in business, politics and law.
This-article is adapted from new her book,
What ‘Makes Juries Listen, published by
Law & Business lnc./Harcourt Brace
Jovanovich, and reviewed in the March
ABA Journal, p ’ge 90•)
‘1
F’
Zip
plus sales tax whcce ppIicabl
HF
-------
PREPAIUNG TO TESTIFY
TWENTY-FIVE REMINDERS ABOUT
PREPARING TO TESTIFY
1. $.fore you testify, try to picture the scene, the eb ects
there, the distances and exactly what happened so that you can
recall the facts more accurately when you are asked. U the
question * 5 about distances or time, and. if- your answer-is en ’
an estimate, be sure you say it is only an estimate.
2. SPEAR IN YOUR OWN WORDS. Don’t try to memorize what you are
going to say. •Doing so will make your testimony sound ‘pat’ and
unconvincing. Instead, be yourself, and-prier to trial, go over
in your own mind those matters about which you will be
questioned.
3. A neat appearance and proper dress in court are important.
The trouble with an appearance that seems very casual or very
dressy is that it will distract the jury during the brief time
you’re on the stand--and they won’t concentrate on your
testimony.
4. For the same reason, ivoid distracting mannerisms such as
chewing gum while testifying. Smoking is not allowed.
5. Jurors who are or will be sitting on the case in which you
are a witness may be present in the same public areas where yqu
will be. For that reason, you should net discuss the ae. with
anyone. Remember, tee, that jurors may have an. opportl3nity to’
observe how you act outside 0 f the courtroom.
6. When you are called into court for any reason, be serious,
avoid laughing, and avoid saying anything about the case until
you are actually en the witness stand. Also, dc not read in the
courtroom.
7. When you are called to testify, you will first be sworn in.
When you take the oath, stand up straight, pay attention to the
clerk, and say ‘I do’ clearly. • -
8. host important of all, you are sworn to TELL THE TRUTH. Tell
it. Every true fact should be readily adm .tted, even if not to
your advantage or to the advantage of the prosecution. Do not
stop to figure out whether your answer will help or hurt either
side. Just answer the questions to the best of your memory.
-------
-‘2’.
. DQnot exaggerate, make overboard statements that yo i
may have to correct. Be particularly careful In responding to e
quest ion that begin;, Weu ldn’t you agree that...?’ Remember
that statements like, ‘Nothing else happened’ are dangerous;
after more thought or another questj , you may remember
something else. Say instead, ‘That’; all, that I recall,’ or
‘That’; all I remember happening,’
10. When a witness gives testLmony, he is first asked some -
questions by the lawyer calling him to the stand; In your c ,
this. is an Assista t United States Attorney. This is Called Z2e
dir.ct examination,’ Then th. witness is questioned by the
opposing lawyer (the defense counsel) in ‘cross •xaminatjon.
(Sometimes the process is repeated two or three times to help
clear up any Confusion,) The basic purpose of direct examine’tjn
is for you to tell the judge and jury what you know about tb
case. The basic purpose of cross—examjnatjon is to raise doub
about the accuracy of your testimony, Don’t get mad if you ZeiL
you are being doubted in cross’.examjnatjon. ’ .that is the defense
counsel’s job. DO NOT LOSE TOUR TEMPER.
11. A witness who is angry may exaggerat, or appear to be 3azs
than eb ective, or emotionally unstable. keep your temper.
Always be courteous, even if the lawyer questioning you appe.
discourteous. .Don’t appear to be a ‘wise - guy’ or you will, .cse
the respect of the judge and the jury.
12. Although you are responding to the questions of a lawyer,
remember that the questions and answers are really for the j ”s
benefit. A .ways speak clearly and loudly so that every juror zv
“UI’
13. DO NOT nod your head for a ‘yes’ or ‘no’ answer, Speak
that the court reporter (or recording device) can hear the
answer,
14. Listen carefully to the question; you are asked; No ma:a:
how nice the attorney may seem en cross—examination, he or she
may be trying to d scredjt you. Understand the quest on, hays t
repeated if necessary, then give a thoughtful, considered ans m. .
DO NOT GIVE AN ANSWER WITNOUT THINKING. While answers should not
be rushed, neither should there be an unnaturally long delay a
simple question if you know the answer,
15. Explain your answer if necessary., Give the answer in yo
own words, and if a question can’t be truthfully answered wi.t.t a
‘yes’ or ‘no,’ explain the answer.
-------
16. nswer ONLY the question ssked 1 you. Do not volunteer
information not actually asked for.
17. U your answer was not correctly stated, correct it
iim.diately. If your answer was not clear, clarify it
i .dLately. It is better to correct a mistake yourself than to
have th. opposing attorney discover an error in your testimony.
If you realise you have answered incorrectly, say, ‘May I correct
something I said earlier?’
19. . The judge and the jury are interested in the facts that”you
have observed or personally know about, Therefore, don’t give
your conclusions and opinions, and don’t state what someone else
told you, unless you are specifically asked.
19. Unless certain, don’t say ‘That’s all of th. conversation’
or ‘Nothing else bappened. Instead say., ‘That’s all I recall.’
or ‘That’s all I remember happening.’ it may be that after more
thought or another question, you will remember something
important.
20. Sometimes, witnesses give inconsistent testimony-something
they said before doesn’t agree with something they said later. If
this happens to you, don’t get flustered. 7ust explain hon stly
why you were mistaken. The jury, like .the rest of us,
understands that people make honest mistakes.
21. Stop instantly when the judge interrupt s you, or when an
attorney objects to a question, and wait for the judge to tell
you to continue. -
22. Give pos tive, definite answers when at all poss le. Avoid
saying, ‘I think,’ ‘I believe,’ or ‘in my op inLon ifyou can. be
positive. If you do know, say so. Don’t make up an answer. You
can be positive about important things which you natur.ally would
remember. If asked about little details which a person naturally
would net remember, it is best just to say iou you don’t
remember.
23. When being questioned by defense counsel, don’t look at the
Assistant United States Attorney or at the judge for help in
answering a question. You are on your own. If th.e question is
improper, the Assistant United States Attorney will object. If a
question is asked and there is no objection, answer it. Never
substitute your ideas of what you believe the rules of evidence
are, - -
-------
24. Sow ti g a defense ttorney aay ask this quest on: ave
you talked to anybody about this case?’ U you say ‘no’, the
judge or ury knows that doesn’t seem right, because a prosecu
usually tries to talk to a witnoss before he takes the stand
many witness 5 hive previously talked to one or more police
officers, or federal law enforcement agents. t is perfectly
proper for you to have talked with the prosecutor, police c v
family member’s before OU testify, and you should of course
respond tr’UthfUlly to this question. Say very frankly that y .
hav, talked with whomever you have talked with-—the Assistant
Dnit,d State; Attorney, the victim, ether wjt e;s,s, r’elatjy .
anyone else. All that we want yo j to do is to tell the truth
clearly as Possible.
25. After a witness has testified in court, he or she should .
tell other witnesses what W4 5 said during the testimony until
after the cast is over, Thus, do not ask other witn , ; e& sbo.u
their testimony and do not volunteer information about your own..
-------
7W! A! VIE W OF ZJ7IGA 27011
(Vol. 2233
APPENDIX
Saiptof Basic, Generas P arks to Be Used
in Whn s Preparation
I. Lirsar t the quem r. Concentrate on every word. Wait until
you bear the last word of the quation before you start your answer.
If you listen closely to ordinary conversation, you will see that we cut
one another o quite frequently, not to be rude but to keep the onn•
vuntio moving. Do not do that as the deposition. ‘Listening is
hard work. Uyou lister as you ibould, you will be tired ax the end of
the day.
2 & Ae theq utm . lfthe lawyer drops his voiceor
somsone coughs or a truck honks its hon outside and you min a
word or two, say that you did not hear the qu tion. Do this even if
you are ,j ost certain that you know what word you m ed
3 5e e,cu wtderi ard the quathn. Sometim the qu don will
be so long or so convoluted that you do not know what you are being
asked cacept that it concct s subject A. You may be t pted so an.
swer by saying something about subject A in the hope that the law.
yer will then go on to some other subject. Do not do that - Just say
that you do not understand.
You may not und sand because the lawyer is not exact in his
langizage For aznpl; be may -ask you if a certain letter was sent
after “that.” You may not be sure to what fac: or event he is refer-
ring wDefl he says ‘ 4 that” Say that you do not understand the
querdon.
You may no; be certain of the m 1 ing of a word used by the
lawyer. Or you may not be sure how he is using is. Say that you do
not understand the quostion.
I(you do not undc: tand, do not help the other lawyer in
the quextion. Do not say, “If you mcan this, then my answer would
bcsucisandsuifyo znth3?.1UYaw0l ldb 0and10.”
You may v r well give the other lawyer idens that be never had
Say only that you do not understand,
1. 4uw r the quern . After you have listened so,h rd., and un
derstood the qucation, then answer s.nswer *e q rSt t. Some lawyers
say that if you are asked your ,t e, you should give your “ “‘c but
not your addr . Others say that 95% of the questions can be an-
iwes ed, Yes,” “No,” “I don’t know,” or “I don’t r ember.” Those
-------
1982] AW7ZMh tJt’OVE 7 TOOLS
sat cnts go too far but they make the point . Generally you bouJd
knrp your amwer short and so the point
What you lenz ed In taking sets In high school or 8 e appli
here. Answer what you are asked. If the qu tior* begins “Who,”
your answer should be a ‘ t.i ’ c It “Where’s p” If “When’s
date and to on.
If you do not know or do not remember, say that. You do not g t
eawa points by gu ing. If you are pretty sure of the a but not
100% certain, say that -
You do not get e u points for giving perfectly cisar and com-
plete answers. Normally if there is some ambiguity in your answer,
that will be a probLem for the opposing party, not for you.
Sometimes, after you give your answer there will be a si1er ce.
The other lawyer may be thinking how to word his n t question.
Silencm sometimes v kp wimen uncomfortable. You may be
tempted to fill the sIlence with worth. Do not do that Keep quiet
and wait.
If a question b,iates you or makes you angry, resist the tempts.
sian to argue with she other lawyer. Ityou get into an argument with
a lawyer, you will las& Just give whatever facts you know responsive
to the question and then keep quiet.
If you are asked a question that requires a longer answer, give it.
Use your common sense Do not make the other lawyer piay
“Twenty Q iestions.” But if you are in doubt, kc p your answer
short. Do not “ -‘ 1 e speeches. Remember that every word is another
target for the other lawyer.
In d fl ’ g with the other lawyer, your “ snne should be courte•
ous and open, bus mentally you should be on guard as all times .
Even if something is said “off the re rd; ” the other lawyer esn ask
you about it when you are b ek on the r rd..
I may object so certain questions. Try not to be distiscted by
that . Do not gu about why I have objec . However, the objec-
tion is a reminder so you to keep concesserasing.
Imay go further and insn uet you not to answer the question. If!
do, follow my r,iction. Imsy get into uvuble with the court if!
am wrong, but you will not. * -
5 S bzithj ilaiuwr5. You may hw the same question more
thin once. If your original answer was a urat; stiá to it. The fact
that the other lawyer keeps i ng bade to the question does not
-------
328
r E £ffltW OF 1J77C4 770N
[ Vol. t255
mean that you are not answering properly. You mt z give the facu
U you ow them. If you gave them right the first time, stick to your
Of course, the other lawyer is an experieneed and sidilful ques.
sioner, an he may U7 through his questions to eseate doubt in your
mind evu about facts that you l ow v y well. Take an easy exam-
ple which has nothing to do with this ease Suppose he zhows you a
coffeeaapandasbyouwhatitis. Yousayacoffeccup. Hethen
pauses, gazes at the cup, and lees you squirm. Thco, after letting you
wonder what he sows that you don’; be le ” forward and ys,
“Now, Mr. Witness, is it your testintony here today—under oazh-
that that object is a coffee cup? Do you really mean to say that?”
T h an r a1 tend yto bv off and say, “Well, Ithought it
was a coffee cup.” That small di’ ge in your testimony may be a a .
elaL Suppose a witncu says the first time that he had the green light
and then says that he thought he had it. That would be a devastat-
ing change. So if your first answer was wue, stick to it and say, “Yes,
itisacoffeecup.” Wha:doestheother lawyerdothcn? Hewiligo
on to another subject quickly when he sees that you ea.nnot be
shak .
Of course, if’ you realize that your earlier answer was in error or
incomplete, you should corr t or supplement it. Obviously, you
1 s tr’ e if vrn* b mc aware that
it is not
6: Tell the pith. You must always follow that rule. You should
not interpret anything else that I have s d to you to be at odds with
that rule. You will undoubtedly be asked some questions that we
have not covered here todny. When that occurs, do not get upset.
Focus cn the question and, U ’you n. answer it. You may be asked
itweniettoprepareforthedeposition. Telltheeruth.
-------
Pz jvaring and Examining Witnesses
Handling witnesses brings together the art and thescience
of law. It calls for applying both well-defined rules and
Intuition. Our law schools are beginning to realize the
need to teach techniques of witness examination. This
issue explores the art and the science of the process .
Robert F. Hanley begins with an analysis of the
inherent difficulties faced by lawyers who seek to elicit
rational, understandable information from often con
fused, forgetful and frightened witnesses. He gives a
broad overview that discusses the preparation and pre-
sentation of lay witnesses; the order of presentation;
preparing a lay witness for the opponent’s cross-exam-
ination; preparing to cross-examine the opposing wit-
nesses; and preparing, presenting and cross-examining
expert witnesses. -
Stuart A. Summit focuses upon the preparation of an
Important witness to testify upon deposition and at trial.
Mr. Summit contrasts major differences between
deposition and trial preparation and outlines the thai
lawyer’s crucial role in each. Professor Irving Younger
translates ard publishes for the first tune “a recently dis-
covered letter” in which M. Tullius Cicero lays down the
‘en commandments of cross-examination—command-
3ents strikingly similar to those developed by Professor
Younger. Lansing Palmer then treats the use of depOsi-
dons in cross-examination, examining the pertinent pro-
visions of the Federal Rules of Civil Procedure and the
Federal Rules of Evidence and suggesting techniques for
• using deposition testimony both for impeachment and
• also as evidence against the opposing party.
Nancy Rosner and Elliott A. Taikeff examine the diffi-
cult questionsof whether to put a criminal defendant on
the stand, and how to proceed once the defendant does
take the stand. John W. Castles 3d outlines the prepara-
• don of an expert witness for his direct testimony and his
cross-examination and suggests guidelines for the initial
selection ofexpert witnesses. In the area of administrative
trial practice, Michael S. Home reviews the developing
practice of submitting all or part of direct administrative
testimony in written form, and suggests the types of cases
in which written direct testimony would be appropriate.
..One of this JourOal’s main purposes is to make avail-
able to the practicing bar and to judges information
about the professional skills that are essential for effec-
tive advocacy The editors feel that the authors in this
Issue have made a valuable contribution toward that goal.
- F. Wallace Pope, Jr., Assrciate Editor
1. Berry St. John, Jr.,As.sociate Editor
7
-------
Working the’%tness Puzzle
b Robert F. Hanley
We trial lawyers have an impossible job. We do not have
a nice, anesthetized patient lying under a sterile sheet
passively waiting for the surgeon’s knife. We must
Operate on a wiggling. frightened witness who perceived
little of what he saw, recalls little of what he perceved,
and has geeat difficulty expressing what he recalls.
As you stand at the end of the jury box, or at the
lectern, or wherever the judge requires counsel to stand,
you look at your terrified, not overly bright witness and
you realize it is your job to bring forth from his mouth an
account of a complex or involved incident or transaction
in such a way that six or twelve untrained jurors will
understand and accept it. No wonder we so often resort
to leading questions and everything short of a semaphore
in an attempl to control the situation and mininthe the
chance of a real disaster. -
That witness is usually not of our choosing. We may be
able to avoid calling one or two of the least gifted wit-
nesses to whatever happened, and we can establish the
order in which we call the witnesses, but generally we
must rely upon those who witnessed, the event or par-
ticipated in the transaction. Our freedom in presenting
our client’s story is further limited by complicated and
far from consistent rules of evidence. The human factor
and the laws of evidence conspire to present us, the
American trial lawyers, with an extraordinarily difficult
task.
Our success or failure rests laxgely•in the manner in
which we prepare and present those witnesses. The
following observations dealing with those processes have
been arranged in the following order: (1) the preparation
and presentation of lay witnesses; (2) the order of pre-
sentation; (3) preparing lay witnesses for your oppo-
nent’s cross-examination; (4) preparing for cross.
examination of your opponent’s witnesses; and (5) the
preparation, presentation and cross-examination of the
expert witness.
Most cases will be won or lost on the basis of witnesses’
The aictho, a i,,e’,,ter of the C ’hicggo firm of Je r RIoc& is a
Jbi,,er chgjr,: ,, of the S o.s of Lgi ariot i.
8
knowledge, recollection, and perception and their ability
to describe the events at issue. As a trial lawyer, you must
take the witnesses you find, train them in simple expo-
sition and teach them how to commun catg, simply,
dearly and accurately. You must become a teacher in
effective communication. You must teach the witness to
use simple words and short sentences. You must intro-
duce him to the eloquence of brevity. You must teach
him to listen.
Not Very Alert
You must also become something of a psychologist
The witness is often a person who has seen an event o
been through a transaction be was probably not anti-
cipating. He undoubtedly was not expecting to be called
upon to recount what he saw. He was, therefore, no more
alert than usual, and that usually is not particularly
alert.
Because the witness has only a hazy recollection of the
details of the event, he will tend to substitute “logical”
guesses for recollection. The trial lawyer knows that
those logical guesses will provide his opponent with out-
standing demolition material. The human mind does not
stop with the facts it has perceived; it transforms those
facts and supplements them.
Most witnesses suffer perception and communication
difficulties. We must somehow overcome or at least
mitigate the damaging effect of those shortcomings. We
realize that witnesses are inattentive to details, generally
have poor memories, nd tend to oversimplify. A witness
tends to modify his story to please the questioner, even
on CTOss.examiriation.
Knowing the effect of these human weaknesses, what
can we do about them? The witness must be shown the
effect of this kind of testimony. A good starting point for
preparing a witness is o run him though a rehearsal of
his direct and cross-examination on a tape recorder arid
play it back to him while you provide a running com-
mentary. You might have prepared yourself with a good
college textbook on public speaking. One excellent
-------
CXaTflple is Gums yo Goon Smca by Ernest Wrage
and James McBurney.
In presenting a witness on direct ewnlnatlca, I like to
t the jury know Immediately why I have called him.
That, In a sentence, will they hear from this witness? If
the witness did not participate directly In the drama, I let
the jurors know immediately so they won’t be disap-
pointed later.
Q: When did you first visit the site?
A: The day after they poured the concrete slab.
Q: What did you do?
A: I took measurements and photographs.
Then hike to set the sce .
It is not only objectionable but unwise to have a wit-
ness tell a narrative until the jury is looking at the event
or transaction through the witness’s eyes. Don’t have the
witness “tell the court and jury please in your own words
what transpired” until the court and jury know where,
when and with whom the event about which you want
him to testify took place.
If your witness gets off the track during his direct
examination, bring him back with an apology. “Sorry,
Mr. Jones, I didn’t follow you there. Now where were you
standing in relation to the red tractor?”
Don’t repeat a question when you are especially
pleased with the answer. How many times have you
repeated a question for emphasis and had the witness
change or blur his previous answer in the hope of
pleasing you? A nice pregnant pause to let the answer
sink in is much more effective and much less dangerous.
We all know that it is usually a good idea tosteal the
arch and bring out the damaging portions of the
itness’s story ourselves rather than wait and have our
pponents bring them out on cross-examination. A word
of caution: Many of us give our opponents far too much
credit. We bring out every little negative aspect of the
case. But doing so confuses the jury and makes for a
terribly ineffective account. Often your opponent will not
have thought of it. and you will have unnecessarily
diminished the value of your witnesss testimony.
Honest Witness
You will, from dine to time, find an absolutely truthful
witness. He will have told everything accurately—with-
out flourishes, exaggeration or ambiguity. One tactic
suggested by Wefirnan in his Air or Cioss Ewt-
D(AflON (and used by Abraham Lincoln with success ) Is
to ask this extremely honest witness about some aspect of
the case about which you are certain he knows little or
nothing. His answer, “I’m sorry. sir, I don’t know
enough about that to swear to it,” is an excellent way to
corroborate his credibility.
Another technique used by advocates for at least a
century is to omit on direct examination a portion of the
story with which the witness had considerable trouble at
his deposition. You will have prepared him carefully in
the trouble area and together you will have solved or
mitigated the problems enr’ountered on deposition. You
will sit back smugly through your opponent’s Ineffec .
‘ye cross-examination of your well-prepared witness.
I think most of us over-try our cases. We put on too
many witnesses. The testimony becomes repetitive and
dull. Even our own witnesses often hurt our case. Don’t
call witnesses you really don’t need.
Psychologists tell us that people remember what they
hear first and last. Usually you should start with the
witness who will tell the story most effectively. If you have
one who can tell all or most of the story, put him on
Immediately.
I don’t like to start witl an adverse witness. Some
lawyers start with adverse witnesses as part of their
standard operating procedure. But adverse witnesses are
up there with one thought in mind: to kill my cl ent and
me. I put them on only If I really need their admissions.
Even then, I carefully control them with a deposition in
one hand, pretty much as a lion tamer uses a whip and
chair. Evety time that adverse witness strays from his
Control an adverse
witness with a depo-
sition, as a lion tamer
uses a whip and chair.
deposition. I let him feel the whip: “Mr. Witness, you do
recall coming to my office last month? You recall that
your lawyer was with you and that you were sworn to tell
the truth and at that time and place, I asked you this
- question and you made this-answer. Question: ‘Did you
see the bus?’ Answer: No.’ Were you asked that
question and did you make that amwer?”
Hold him in. Ask questions in the same form they were
asked on the deposition—it enhances the effect of the
• Impeachment and keeps him from destrojlng your case
and usually forces out of him the AdmIwiOn you need. On
adverse examination, control is the key. Get your admis-
sion and run.
I bury the adverse witnesses in the middle of my case.
hf one hurts me, I can still take some sting out of it by the
testimony of friendly witnesses. Where possible. I have
reserved someone who can re-establish the fact a bad
witness has blurred or demolished.
Save a good witness for last. Usually I like to finish
with a good strong expert, and I use a hypothetical
question as a mini-closing argument. I like a final
witness who I am relatively sure will hold up on cross-
examination.
A Practice Cross
9
In preparing your lay witnesses for your opponent’s
cross-examination, you actually should conduct a
practice cross and put your witness through what you
anticipate will be the cross-examination. A trial lawyer
does not want to give the witness the impression that
there is anything improper about preparing him to
testify. The witness should be told the difference between
preparation to make certain that he can clear ly present
his story and the unethical coaching of a witness, where a
lawyer gives hun a story to recite.
-------
Wherever you practice, you should take ‘bow” and
— “why” and “how do you explain” out of your cross-
examination vocabulary.
We are told never to ask a question the answer to
which we do not know. We are told that the trial Is a poor
place to seek discovery. Sometimes poor preparation
makes you violate this rule. Usually you’ll wish you had
not. When you go off script. remember to take steps and
leave yourself an escape route. First, just a little step—
if the witness agrees, a second slightly longer and more
dangerous step. If he balks, you may have to take a tinail
step back or laterally to an alternative and ukr area.
Save the Beat
It Is Important to distinguish b twven cross-examIna-
tion and closing argument. Save your ultimate point for
your closing. Don’t try to get the witness to admit that he
was mistaken or was lying. He will Invariably take
something away from the victory you won. During your
closing argument when his mouth Is dosed, you can
remind the jurors of the difference between the witness’s
version of the story during direct and cross and counsel
them that when a person lies about one thing he is
certain to lie about other things.
I like to try to close my cross-examination on an up.
beat. It is surprising how often lawyers sit down after a
witness has made a telling point against them or after
their opponent s objection to a question has been sus-
tained. If you have properly prepared your cross, you will
have saved your best line of questions till the end and will
sit down hearing that nice little rustle that always follows
an effective cross-examination.
We are all increasing our reliance upon expert opin-
ion. The types of expert witnesses used are varied:
economists; actuaries and other wage and damage ex-
perts; structural engineers; architects; foundation ex-
perts; real estate appraisers; aceountants; Individuals
You can often convince
him that injustice
will be done if he
does not testify.
with a wide range of marketing experience in various
industries; psychologists; the expert who has made a life
study of people’s buying habits and who knows how to
design and conduct a public opinion poll, utarket sur-.
veys or consumer reaction tests. It is a rare case today
that does not include some opinion testimony. Some
think it Is being overdone. I have not experienced over-
utilization of expert testimony, but I have seen much
misuse of It.
Sometimes it is hard to persuade a qualified expert to
testify. Ratter him. You can often convince him that a
great injustice would be perpetrated if he, the world’s
only living expert on Middle English tapestry, does not
take the stand against the charlatans who would try to
convince the jury that a shoddy, poor copy woven across
a saggy warp was authentic. You are an advocate. Use
the skills you have to persuade the wItness you need him
to testify for you, for your client, for art.
You must assure the expert at the outset of your first
conversation that you do not expect kin, to become an
adversary. Tell him that you only want him to recount In
a clear, humble, straightforward manner his qualifica.
dons, his opinion and the basis for his opinion. Often If
you settle for a reasonable degree of scientific certainty.
rather than absolute certainty, his reluctan e to testify
will dissolve.
Insist on ani pay for a “consultation”—before an
expert’s deposition is taken. Arrange for enough time to
permit a complete exploration and simplification of the
scientific aspects of the case. Start from scratch. Make
no assumptions. Have your expert define each term and
explain each step he takes In reaching his opinion. Let
the expert (especially one who has had no courtroom
experience) know that the consultation is to prevent
embarrassment to him as well as to you. Review every
piece of technical data upon which he will rely. Make
certain that you understand it and are in agreement as to
Its significance. Explain the theory of your case, and he
wi!l help you find the places where you are vulnerable
and buttress them.
Like to Show Off
Most trial lawyers are excited about new technology.
We enjoy obtaining at least a superficial look at new
fields of knowledge. We generally enjoy taI5 ing to the
experts. We like to show off our newly acquired expertise
In conversations with our expert witnesses.
The trouble is that some of us never stop showing off.
We continue to carry on mysterious conversations wit!
our experts during the trial. We sound right out of
medical or engineering school symposia. Jurors probably
think, “Here are a couple of extremely smart fellows. I
wish I knew what in the world the two of them are talking
about.” The mystery hour won’t help much when the
jury retires to deliberate. You and your expert have a
teaching job to do. It can usually best be done in short
steps. You both watch the jury for the telltale sign of
imperception — the lost look of the walleyed. pike.
Those twelve people have not shared your exciting new
educational experience. You and your expert must get
through to them. That means taking thai overqualified,
overpriced, fancy-talking professor and making him into
an English-speaking human being. Teach him to speak
simpI and to draw simple, understandable sketches and
diagrams.
Encourage him to explain his testimony—first to you,
ultimately to the jury—by using charts, diagrams, maps,
drawings, or in the case of doctors, by xrays, skeletons
or medical drawings of the parts of the body involved.
Make him be specific. Forget fancy projections. Most
jurors can’t read a blueprint—most of them did not
take a course in engineering drawing. Use drawings they
*111 recognize from their experience. Make your expert
tell ittoyou and then to the jury as ifhe were reviewing a
book on his subject for a bright bunch of fifth graders.
Not cloying, not patronizing, but very, very clear and
10
-------
well-organized.
Q: What Is icaisson. profe or?
A: Caissons are supports for buildings. They are
used to support tall buildings.
Q: What kinds of calisons are there used today In
construction In Chicago?
A: Mainly two types. Both are made of concrete.
One goes right down to bedrock, and the other
goes to hard clay or hardpan and Is belied like
sailors’ trousers. Both bold up and act as part of
the foundation of the building.
Q: With the court’s permission, would you leave the
witness stand, and using the blackboard, des-
cribe for the court and jury how the caissons sup-
port the building.
A: NowthesecolumnslhavemarkedA.B. andC
are columns of concrete running from the sur-
face of the ground down 125 feet to bedrock.
This is the way it would look to you If you could
slice off a piece of earth and look at the caissons
from the side. Sort of the view you get of ants
working in their dirt hills on one of those glass.
enclosed ant farms they sell in pet stores.
In your preparation, make your expert interrupt him-
self and define every technical word he uses. Interrupt
him in practice sessions until he does ft automatically or
at least at the slightest cough from you. Try to avoid
having to interrupt him constantly during his testimony
to define terms. If he forgets and your coughs don’t help.
you should take the blame: “Sorry, doctor, I’m afraid
you lost me there — what were you referring to when you
used the term annular space’?”
Figures of Speech
Get your ex ert to use similes and examples. Make
him watch the jurors as he would a class of students. Do
they understand? Are they following him, or has he lost
them? Make your expert as jury-aware as you are.
Go through your direct examination outline with him
carefully. It is as important to insure effective com-
munication by repetition of your examination with an
expert as it is with a lay witness.
Take your time in qualifying your expert. Try In
pretrial conferences, to Instill patience in the judge. Ask
him not to push you through your examination of your
expert’s qualifications. The judge may have heard a
thousand orthopedic surgeons qualified. The jury has
not. Do not, of course, accept your opponent’s offer to
dispense with a recital of your expert’s qualifications by
stipulating that he is qualified. You might express your
appreciation for the recognition of your witness’s
qualifications, but since the qualifications go to the
weight to be afforded the testimony as well as to the
admissibility of the opinion, you believe that the jury is
entitled to hear the qualifications in detail.
Take your expert carefully through the cross you
anticipate. Use leading questions and warn him how
your opponent might use them unfairly. Tell him to say
so If it would be misleading or inaccurate to give an
unqualified answer. Warn him of pitfalls. Tell him to
11
listen to questions very carefully and not to supply
missing parts with assumed facts. He should be told not
to change his manner during his cross. He should cer
tainly be careful but not evasive or hostile. He should
only answer the question asked and stop. He should
never argue with counsel and never, never exaggerate.
Be sure to let yourezpert know that he will be given an
opportunity to clarify, amplify or correct his testimony
on redirect examination and that he is not required to
straighten out your opponent by argumentative answers.
Advise him not to be afraid to change his testimony
hnmediately If be realizes be has made a mistake.
Most Fertile Areas
Point out the most fertile areas of cross-examination:
textbooks, his own writings, other possible causes,
inexactness of the science, possibility of errors of fact in
the hypothetical question. Tell him that on redirect
examination you will ask him if he took into consid eraS
don the other possible causes before he reached his
opinion.
Obtain a written bibliography of his professional
writings and accomplishments (curriculum vitae) and
skim them for embarrassing or inconsistent opinions.
Ask him to help you ferrtt out seeming inconsistencies.
Often they disappear.
Do everything you can to present him to the jury as an
honest, fair, sincere, friendly man of science who has
done his homework and knows his subject. And God
bless him if he is a little humble. The meek may not
inherit the earth, but they can certainly help you to per.
suade the jury you are on the right side of the case.
The successful cross-examination of your opponent’s
expert usually requires much thought and preparation;
you must shake some of the gloss from him and from his
harmful opinion. Usually, if he is well-qualified and has
expressed an opinion recognized by your expert to be
honest and sound but at variance with your expert’s
opinion, you may be well.advised to obtain an admission
that the question is the subject of professional debate.
You probably are wise if you establish your theory with
your expert and conduct an apparent or ghost cross-
examination of your opponent’s expert. His financial
arrangement with your opponent may be of interest to
the jury. The number of times he has testified for your
opponent or for your opponent’s side of cases may seem
terribly shopworn to you, but it will be new to the jury.
Occasionally your opponent will have come up with a
witness of the highest competence in his field, but his
field isn’t specifically related to the subject in issue. His
qualifications may be adequate enough to get him over
the admi sibility hurdle, but his experience and training
have been general and not specifically directed to the
issue in your case. You may not want to attack the plain.
tiff’s expert directly, but you can show indirectly and
comparatively that he has general knowledge, where your
expert has specific, detailed knowledge.
You may be able-to have the expert testify that there
are alternative explanations. Your expert tells you that
such alternatives are certainly possible. You have not lost
much of anything if the plaintiff’s expert denies the
(Please turn to page 34)
-------
Copyright 1983 ABA Sectior. ef Litigation,
Further reproduct , in whole or in part,
Reprinted with per nission from Liticatior. ,
1977 at P. 14 by Stuart A. S’ itt.
All rights reserved.
is prohibited.
Volume 3 No. 2, Winter
The Witness Needs Help
by Stuart £ Summit
The important icneu has the most difficult role In liciga.
non. The subjective prexsum on any witness—whetheta
party or not—make testifying a frigitrening pr pect . Few
lawn perce.e the difficulty of the witness’s job. and
that may explain why lawyers are supposedly among the
worst witnesses.
The least we can do is help the poor fellow. By ‘belp”!
do not mean the casual run-through that suffices for
many. A witness is entitled to substantial assistance not
only on the subjeet.mafte? of his testimony, but alsoon the
special problems of being a wuness.
The important witness in civil litigation wiD be
examined twice—a z the oral deposition and as trW—sod
his role in each phase is different. The preparation should
be different, zoo. One stL-tling fact is true in both phases:
being a witness is a highly.artificiaj business for which
there is no adequate back groiknd or eapericuce. Psepara.
tion ofan important witness must sw romseratch, who..
ever the witness and whatever the ease,
Testifying at an oral deposition is the most artificial
process of all. The witness will think he is participating in
an esaeoziall oral evcut—he will be questioned and must
answer. That impression is dangerous. A deposition is a
process by which a document is prepared, and nothing
else. AD that matters is the on’ucripr. Somehow you uu
convince the witness that his job is to th titt a vet,
important document.
Think of it! A lawyer or business executive (aced with
having to prepare an important writing will oonsidcrwha.t
he wants to say and will drat and edit until he is satisfied.
He may seek the opinion of others before be permits the
document to be made fins.!. In the tea.! world w treat
documents of potential importance with respect.
But the witness at the deposition is givvu no such
opportunity. No matter how much he Prepares-before be
enters the deposition room, he cannot kaow what
questions wilt be asked, and he cannot prepaic answers in
advanet. His opportun ity to chaoge answers is limited. He
Mr. £ mi& . Nv.r Y * £e uajb’ t frw.
-a
must account for dsanges. It will not be enough fot him to
say, as we sometimes do of an early draft of a legal
document, that its only deficiency is that it can be
Intpru.ed. The witness will not be permitted, without
pen!, to improve his answ .
There are a number of ways to neip keep the witness
aware throughout the depo ition that he is dictating an
important document. The most important principle is
that the witness should take his time. No less than five
seconds should elapse between the last word of the
question and the first word of the answer. The witness
should be drilled to know what five seconds are, and to
stay perfectly quiet for at least that long. (Five seconds is a
C17 long time indeed when everyone in the room is staring
expectantly.) The witness must be taught that this long
pause before answering is à,vanabi.—once he has given
his name and address, that must be his pattern. If he
answers some questions quickly. he will be unable to
sustain the pattern, and may warn the examiner otareas
of concern,
During the long pause between question and answer ,
the witness should make sure he understands the
question, say so if he does not, and compose his answer.
He should not begin to talk until he knows the last word be
is going to say. If the question isso open-ended that the
answer cannot be composed wholly in advance, ax least be
should make notes of the thoughts to be induded in the
answer.
Talk to Stenographer
The witn i ihould face the examiner until he is ready
to answer the question, then turn and speak so the
stenographer. Facing the stenographer will remind him
he Is dictating. The witness should talk in senteo . He
should be as concise as the question permits. That does
not mean snetching to give a yes or no answer, but using
at few words as completeness permits.
The witness should be taught that it Is the examiner’s
job to ask a question so that it can be intelligently
answered. It is the lawyer’s role to argue with the examiner
If argument is necessary, but never the witness’s. Unless
14
-------
i nszrucse dby,utothecos*y.hOawsCriibat
be can afl questions he derstands. He should ask that *
aesthn be repeated orrephessed until be uadastands is.
it does not ask the examiner any questions be does not
ta*e gi’axvitously the cause of his need for ruphruing
in ourn. he does not assist the # iithi • The deposition is
the advmwys inning. and is is pert of the witness’s
burden so make points. 1k is so answer quretioms . and
nothing more. His genersi attitude should be that of the
bystander. who has no interest in the outcome .
From the *.ct . the witness should be informed.
precisely and npeth ely . of the differences batijcu
knowiedge. hearsay, and surmise. 1k must ae’cranz a
question by eag ulng be knows something be does sot.
The jingle that begins l don’t know. bet lee been told”
makes the distinction neatly. The witness only testifies to
what he has been told If be Is asked what be baa hem
told—otherwise, be dem not know lomethiug be has
merely been told.
Witnesses make mistakes. Point out how normal that
is. so be will nor b ome flustered or worse. He should
correct errors as quickly as he thcu — interrupting
necessary. If it i matter a porrance and he has any
doubt, he should confer with you fuss. Many witnesses
attempt to defend error. bet u cannot suc JuUy be
done. “Dont try— wut the error quickly, sod don’t
build a story around It” On the other hand, he should be
suspicious of rcollect ons newly found while testifying.
and you should test these before tht become a matter of
record.
Before your first brieflng meeting, you should have
reviewed all that you know about the witness’s role in the
erns in suit. Separate the documents be wrote from the
uments he saw and the ones he neither wrote nor uw.
.s miporrani to remind the witness of what he did not
no during the events in suit. because he may have
esmed much after the fact.
Relaxed First Session
The fwst briefing session should be relaxed, and neither
lawyer nor’ witnest should be subject to time pressures or
interruptions. At this early stage you must get to know the
witness as a person. to understand his perspectir on the
events in suit, and to start identifying the areas where be
needs the most help. It is best to nazi by giving your
o’er ’all picture of the cue, generally including his
involvement. Then ask him to tell of h it invo lvement in his
own words, without reference to docwnents or notes. In
particular, ask him to comment on your description of his
role. This is no time for close question mr let him tell his
story as he sees it.
Be particularly skit as the witness tefls Ins story for the
flit time. The nuances in his fist narration can be
consldcnble. Facts glossed over, omitted or unduly
emphasized are dues to possibly o ’oublesome areas.
Unless the witness Is your I dividusi client, do not be
certain be views you as an ally. An employee of £ Large
concern. for example. may well vie” the companys lawyer
us source of potential danger. It is critical that you find
common ground and that he comes to mut and rely an
(A sensitive task, but it must be done.)
ouId the i’itness’s spontaneous recital of his role
ntsln any iurprlsès. attempt to clarify, but be gcnt!e.
Assuming you have reee.*d no major sAIrprises. you nave
probably aceomplisked as much as you ibould at the first
briefing conference. At this point. assign homework and
orbedule a ascend meeting. As a minitnuni, give him a
package containing copies of sil the original documents
with wbk i be should be familiar, end a brief cbroiio
logical recital of the major erenta surrounding the case, if
there are Intenogaic’ry arui..ers or uscripts of prior
witnesses bearing on his .n*lpated testimony. be usually
should have thin. also.
The bard work begins at the second b iefir&g
conference. Ask the witness whether be sees any problem
wish the role you expect him to play in the litigation, and
see If his bomeerork has produced any questions. Before
going further. re-establish cc redefine the common
Take the witness
through a serious.
examination under
‘aboratory c’oiiditions.
ground; the witness will tesent a failure to do so. He mutt
be saiisf ed that he can properly and rruthfufly do what is
expected of him. in the course of re-establishing or
redefining the witness’s sole. carefully identify his areas of
knowledge and those where he lacks knowledge. Then.
remind hiiii of your instructions about bow to answer
questions and take him through a casual examination
covering his entire know ledge. By a casual eumir.ation. I
mean one that may be interrupted for questions and
comments. Give him a running critique on his answers.
and he may seek advice too.
After the subject.rnatter it covered through casual
questioning. you should takt the witness through a ser.. us
examination under labors tory condmnons. This ihould not
take place in particularly comfortable surroundings.
beverages should not be served, their should be no inter-
rupt io n s. and the conditions under which the depositiosi
will be held should be duplicated. Another lawyer should
be present. If possible. to gel a cold evaluation. During a
serious examination there ate no comments or questions
from either the lawyer or the witness. these are saved.
Do not spare the miesi at this point. Let him set.
through your quemomng. where a gratuitous comment
can lead. If he c.iys he cannot answer without a document.
produce the document. Show him the dangers of evasion.
Use your’ know edge of the whole case to try to have him
claim knowledge he does not have. Try to make him look
foolish for every “1 doo t know.” If he claims not to
understand a question, ask him what he does not
understand. Do aUthe things you know bow to do to make
$ witness err.
When you are done, you m y need to re.establi.th that
you ally are on the “itnei S side. Do not overlook thti.
Ho matter ho poorly he p 1 ’ortns. reassure hun. pøintuig
out that the obect of preparation is to a oid the problems
15
-------
- U1d4 ET JU$L IMI.IM(4IVU. U U y ii usa — -
nct permit complacency.
Whtttoe du t any further questioning at tho time
should turn on whether the witness seems ready far more.
if he seems anxious to show he can do better . go ahead. n
titherevent. at theàd of this meeting. sct dule the eext.
Three feD practice examinations are the minimum a
wkaees who has an Important role. and make sure you
have enough time ks at least that amount. The last
practice examination should be scheduled just before the
depi*kion. and Intermediate examinations should be
scheduled a few days apart. The object of leaving
intervening days between practice examinations is to
she witness’s memory. Unless he seems hopeless , ask him
so do no homework for his last practice examination, so
you may he will do on that basis.
Use ADotlwr I w7
If another lawyer famiTiar with the case Is available, you
may wish to have hint tak.e the witn through the
second serious examination, so that the . imw dom not
get so used to you that you ran no longer test him. This will
gist you the opp rtunizy to watch and sualuats.
In the course of observing the wit under laboratory
conditions. you must make decisions about the conduct of
the deposition. You may detect that the witness cannot
keepde*ailsinhi smindt h atheshou l dbsabletotdly
about. ‘I don t know” at the deposition may limit the wit.
nest’s usefulness at the trial. In that event, i° will went
the witness to have In front of him at the deposition
whatever is necessary to assist his memory. He may have
notes or a document coilection to refresh his recollection.
Because the examiner will be able to see them, the witn
should not use privileged documents or notes that contain
work product. Conversely, a witness who has a good
recollection without notes or documents Is probably better
ofT without them. If he needs anything. your files at the
deposition should be organized so that you can quickly
supply it.
A deposition witness prepared enough times by these
methods should be able to handle the unique and dl5cult
__ a ssgn to sum wunour tne nom tar you so intervene
at the deposition. That Is the ideal.
Often a deposition witness will resist making available
t. fa proper preparation. Lawyers,
doctors. senior executives and public officials particularly
make this mistake. The prospect of a trial is awesome
enough to Mghtcu a w1t Into acqulssce.se. but a
deposition hi a lawyer’s office may sot impress hint. This
is simply untenable and. somehow you muss communicate
the seriousness of the risk. This Is so time to be
deferential—you will Dot be thanked for It when things go
awry. __
his best if there is along period between deposition and
trial, since the witness’s role wifl be quite different, and he
m shake some of the habits you Ias llsd for the
role at trial bears rsule relationsh pto that
at the deposition. The trial is almost exclusively an oral
event. While the trial transcript may be me important.
this will be purely as a record of what took place. in
contrast with the deposition transcript, the making of
which is all that took place. Thus, many things that were
unimportant at the deposition become of peat impor.
efor uiaL
Cdt CUI ot,
Your first critical éhore isto visualim the witness on the
stand. What win he be like? You should (or must conic to)
hint and• his patterns of sp h and thought well
enough to make that judgment. Think through bit
strengths and .eakziesses. is he brash? Ponderous? noes
he think slowly and talk quickly. or think quickly and thik
slowly (the ideal)? Does be have nervous mannerisms?
Does he tent to use large words, or too many?
Videotaping should be excellent for this purpose. A lot
could be learned from watching a videotape of the ciitn
being questioned at length.
One of the greatest dangers is that the witness will react
differently on the witness stud than in the deposition
room or your office. If he Is not a seasoned witness, take
him to an empty courtroom and have hint sit on the
witness stand. Point out how things will look at theactual
trial. Take him tos trial in progress . (If it is permitted, he
should watch prior witnesses testify ax the trial itself.)
To prepare him for the substance of answering
questions, you should start all o’er again even If he was
extensively preparod for a deposition. Be sure that you do
not make the wittiest’s role any harder than It has to be.
Before you start to prepare him for trial decide precisely
what areas he needs to cover on direct examination and
wha areas hemust know for eross-ezamtnaxion. You will
have the deposition transcripts, and while you may give
him summaries, he should read the transcripts of his own
deposinoo.. word far word. As to the deposition
transeripu of o hcr witnesses, do not expose hint to
Information he cannot testify about. He should see,
however , what other witnesses have said about areas of
• overlapping knowledge. He should again be given a
collection of the documents and interrogatory a.nswers
that relate to hint.
By now you should have Identified every problem a
for the witness, Areas where be and other witnesses
16
-------
disagree should be dIscuas at length. While gomewbat
different ‘collections may not und eu* an e,
itnexi should not be in the p .IUon dlsagredng
‘.bas without knowing It and being tn1n about his
ecollsctIon. This is uue whether the wltne,n with
be May disagree ale friendly or anfzt41 1 .
The witnem ans i be piepa , for both dk t and anus.
examination, and the emphasis should be b’aneed
bezwen the two It isa frequent spectacle to em a witn,is
tell much about the eee ts eneered on direct
and grow ngue on erom. He appears to be pusposely
withhelth g Information from the This is
often unfafr the nlt may be the law ’ faflur, to be
the witnem is as prepared for aom .uamlnar4 as
fordliect. Co vtririy, some Is.., , , enjoy practicing their
cnss.ezaminadon eech ques to the pint that their
wftn is ready for anything a hostile quesriooc may ask
but cannot tell a atr$ightfoCwaid stay.
For direct examination. I flnd k helpful to prepare a
short narrative statement of everything I need the witness
to say. prepared as if he were wtisl g a high zcbool essay.
While he must understand, of course, that be will not be
gwen the chanc, to state his story so Deatly from the
witness stand, It still helps the w 4 men to see It in this
I do not give a witness the pre . . e quest z that I will
ask. He adefamlliarduringthep jc, examinations
with the areas that will be CO% in his direst ewnjna.
tion. but no more. Scripts are to be avoided. A witness
should not be permitted to become comfortable with a
particular way ofaskinga question, and yourexamznation
will be. of limited effective esz if you have to read the
q,P— oes. You must be free to extemporize. Cross.
adon will not be conducted from a script, so the
must be prepared on the whole subject.m,anei., no
T how the qu stion is asked.
aIt$ofDfr -
Wjrj ges have difficulty understanding the limitations
of direct examination. It pays to educate them, so that
they will appreciate the limitations under which you are
operating in questioning them. Do not use leading
questions when you are conducting a practice direct
examination.
It may help to divide the practice eza.rninado , di ct
and cross, between two or more lawyers. If others are
available, ask them to prepare across.examjnation ofthe
witness as if they were his adversary. Ask them to
detcrnijne what areas they would concrntr, . on. and to
do so. (It can be enlightening to ask the witness what
be would ask if he were responsible for his own cross-
U*tuin*tj . This is a goed way of determining what is
worrying him most.)
The object, obviously, is for your witness to be as
Plausible on the stand as be can be Y notr ebufida
personality. Instead, you must take the personality and
mannerisms that you find and work with them. If the
witness ii a fast talker, you may get hini to slow down
somewhat, but you cannot count on it. instead, you must
make certain he is so full of information and so awar, of
the nuanem, that you can live with his speed. If be is
--ous. perhaps that manneristn can be converted to
en crm and thoughtfulness. That kind of maxImization
Of the witnessi own nalu is the most -that em be
aecompllshed. A soif j’4 g ’ witness is almost
invariab ly. b sd one.
For the thai even more than the deposition, the more
practice the better. I know of no disadvantage to repeated
rigorous exaatinatiom, a ,o most stay with it until you
are satisfe&’ -.
Depending on the Importance Of the ease and the
witness , there is alwost no limit to the number of’uss ions
or hours that em be cons .uctJveJy devoted to practice. At
the beginning, concentrate on direct, and take yobr
witness through the full direct, under laboratory
There is almost no
limit to the time that
can Constructively be
devoted to practice.
conditions, with the critique following. The witness will be
better able to cope with rigorous crcs 5 -ezamjj a j after
be is confident of his direct testimony. Then, after
achieving a reasonable performance an au .ex amjna.
don, alternate between direct and cross, with discussion
saved for the conclusjo of a full examination. Do not
permit the practice ezaminario, to become a ritual. You
or the lawyers helping you prepare the witness must vary
your routines and should exchange roles as well. These
tzaminations must be rigorous or the witness will receive a
false sense of security.
On the other hand, you do not dare des the witness’s
confldencejo before he geu on the stand. It can be fatal
to delay your initial final preparation to the last minute, so
that the difficult side of cross.ezaminatjo and critique
must take place within a fes days or hours of the actual
testimony. If you start early enough. the mare brutal
aspects of the pi . s can be cov m g , and the last few
practic, sessions can be utilized to give or restore to the
witness a sense of confidence.
I prefer that the witness use no notes or documenti in
testifying unless a question specifically calls for it.
However, this must depend on the witness, If he has a bad
nie iory and no amoum of practice and homework can
cure it. you are much better off ifhe does take notes or files
to the wit es stand. Sonic witnesses -iii ne er be
comfortable wthout such props .
If the adversary examining the witness at the deposition
will be the same as at the trial, it it easier for the witness. If
they will be different, you should familiarize the witness
with the examiner’s methods, if the witness will not be
able to watch the adversary examiner during the rnal. try
to arrange for him to do so in advance. If that is not
possible. then you should describe to the witness In as
much detail as possible the nature of the examiner and his
methods,
Be sure to warn the witness that be may be under
(P/care turn to page 34’)
17
-------
A Letter in Which Cicem
Lays Down the Ten Commandments
of Cmss -Examination
‘lhmslated and Edited byIr ingYounger
The world lost a good part of the literature of Greece
when the library at Alexandria burned. Julius Caesar
was unperturbed, however. Told that “what is burning
there is the memory of mankind,” he replied, “A shame-
ful memory. Let it burn.” (G.B. Shaw, Caesar and
Cleopatra, Act 11) His equanimity has about It some-
thing of the smugness of the patriot. The logos of Athens
may have been going up in smoke; the viznis of Rome
was not. Alexandria’s library contained but little Latin
literature. For one thing, the Egyptian chrestoinaths
devoted themselves single-niindedly to Greek. For
another, most of Latin literature had yet to be written.
Busily writing some of it in the very year of the
library’s destruction was Marcus Tullius Cicero, whose
eminence in affairs as politician and trial lawyer is the
gossip of posterity. Between tenures of public office and
appearances before the jury box, Cicero produced
poetry, history, oratory, and philosophy, enough to fill
thirty-one quarto volumes. With time and energy left
over, he wrote letters. Eight hundred and thirty-five
survive, among them 416 to hIs lifelong Mend, Titus
Pomponius Atticus. To these must be added a 417th,
copied in a crabbed scribal hand on both sides of a
yellowed sheet of papyrus, handed tO me as wrapping by
a Neapolitan fruiterer from whom I had purchased a
dozen cherries, and now, rescued from the obscurify of
the twenty centuries since Cicero wrote it, published for
the first time. Modern lawyers may find in it an interest
not entirely antiquarian. - - -
S a •‘ -
The gods know, dear Titus, that nothing an advocate
does is simple, but of all the things an advocate must do, -
by far the most difficult, the most complex, and the most
subtle is cross-examination. I had better say at once what -
It is I mean to signify by the word “cross-examination.” I
do not refer to friendly cross-examination, In which the
advocate questions a witness who, though called to testify
Ir. n Yo ger te4ches nia! ad ’occcy at Cor.iell Law SchooL
by the adversary, supports the advocate’s side of the
controversy. Nor do I refer to cross-examination of a
witness who takes no position between the litigants but
who possesses information which the advocate, through
his cross-examination, wishes to lay before the jury. I
refer, rather, to Impeachment, cross-examination to
discredit, cross.examinatjon the purpose of which is to
persuade the jury or the judge that the witness is not
worth believing. That is the kind of cross-examination
most commonly encountered and the kind most difficult
to do competently.
Three Qualities Needed
To do it better than competently, to do it superbl
requires the convergence in one cross-examiner of thre
qualities.
The first quality Is experience. Advocacy is not a
phenomenon of infancy. A competent advocate must
have behind him at least twenty-five jury trials. When he
has tried his twenty-five, he begins to know what to do.
The second quality is talent. More about it later. It is
the third quality of which I wish to speak just now.
No advocate ever cures his stage-fright. From first to
last, when he stands up to cross-examine, panic beats on
his chest and prostration lurks nearby. Two questions fill
the advocate’s mind. One is, “What shill I ask?” The
other is, “How shall I ask it?” And those two questions.
• dear Titus, fled their answer in the third quality, a
thorbizgh grasp of both the rules of evidence and the
principles of advocacy, which for ease I shall call tech.
-nical mastery. Do you want an answer to the first ques-
tion, “What shall I ask?” The rules of evidence supply it,
in ways about which I shall write you after the Senate
adjourns. Do you want an answer to the other question.
“How shall I ask it?” It is furnished by the principles of
advocacy.
The chief, the central principle of advocacy, in all its
parts and in every aspect, is preparation. Preparation.
Preparation. Whether he has one week, one month, or
one year to prepare, the advocate concentrates upon hi
I8
-------
case to the exclusion-of everything else. The case Is un-
interruptedly In his mind when he Is awake and forms the
matter of his dream when he sleeps. To what end? That
nothing come as a surprise. Evvqihlng at thai must be
pIanned. Everything must be anticipated. Because If It Is
not, it will go wrong. The courtroom Is the most intricate
of Institutions. So much happens, there is so much for
the advocate to do. to know, to sense, that none of It can
be done a tempore.
What follows is that the summation must be worked
up in advance. Indeed it must. Before the trial starts, the
advocate knows what he will say to the jury when it is
over. He should be able to say ft at home to an ininuen.
ala whose transcript can be compared with the summa-
tion actually delivered In the courtroom. The two must
If the surprises exceed
10 percent, the
preparation was poor.
be within 90 percent of each other. I allow 10 percent for
the disappointments of existence. If the surprises amount
to more than 10 percent of the trial. If the summation
delivered at home is not within 90 percent of the sum-
mation delivered in the courtroom, the advocate has
prepared poorly.
Since the summation is worked up in advance, then
the part of it that deals with the credibility of the adver-
sary’s witnesses is also worked up in advance. Yes, before
the trial starts, the advocate knows that what he will say
to the jury at its conclusion about the credibility of the
opposing witnesses.
There, dear Titus. there is the secret of cross-examina-
tion. The advocate will cross-examine only to the extent
necessary to obtain the information he needs to support
the argument he has planned in advance to make in his
summation about the credibility of the cross-examined
witness. And once he has obtained that information, he
will stop. Stop. S-t-o-p. That four-letter word is the most
important in the advocate’s vocabulary. When things are
going well, what should he do? Stop. When things are
going badly? Stop. When he doesn’t know what to do?
Stop. When he is ahead? Stop. When he has blundered?
Stop.
Stop.
Stop.
But not yet I, Titus, for I wrote above that the prin-
ciples of advocacy tell the trial lawyer how to ask the
questions on cross-examination. I must now set forth
those principles, artlessly and without embellishment.
Do you recollect the conversation of the rabbi we met
once while strolling in the Forum? It suits my fancy to
call these principles of cross-examination command-
ments and to number them from one to ten. Here, then,
are the ten commandments of cross-examination.
I
Be brief, The cross-examiner’s purpose, always
19
• remember, Is to obtain the information ssary to
support an argument In summation about the credibility
of the witness. Well, never more than three such argu.
menu. Two better than three. One best of all. So obvious
is the reason for this commandment that it is often over-
looked. No matter bow simple a case may be to the
advocates, to the jurors it is always confusing. They have
not studied It In advance: they learn about it for the first
time In the courtroom, and what’s more, they learn
about ft. not by reading, which is how we are accustomed
to learn, but by listening, which we are not at all accus-
tomed to do. There is a very low limit on the capacity of
the juror to absorb information by ear, Once at limit is
reached, be can absorb no more. Ask him to do so by
dragging out the cross-examination and he becomes
bored and sullen. The interminable advocate, In short, is
rarely the victorious advocate.
II
rort quesdons, plain words . For some reason, many
lawyers think.that the sign of a lawyer is the habitual use
of fancy words, long sentences, and elaborate syntax.
Why don’t lawyers understand, as do practitioners of all
other arts, sciences, and mysteries, that simplicity marks
themaster? Simple words and simple sentences are not
only good style; they are also good sense. The jury
probably includes two or three simple folk, and the
advocate must talk to them as well as to the learned. He
cannot talk to them if his tongue drops only tangled
dumps of twisting polysyllables.
III
Ask only leading questions. The law of evidence con-
tains a single rule about the form of questions on direct
examination. Leading questions are forbidden. They are
forbidden because they suggest the desired answer,
because they put words in the witness’s mouth. Therein
lies the vice of the leading question on direct examina-
tion, and therein lies Its utility on cross-examination. Oii
cross-examination, an advocate never asks anything but
a leading question. Every question on cross-examination
should put words in the witness’s mouth: all the witness
need do Is reply, in strict rhythm, “Yes,” “No,” or “I
don’t know.” That is how a clever advocate controls a
witness, and controlling the witness, making him say
only what the advocate wants him to say, ‘is the whole
Idea of cross-examination. Isn’t it?
Iv
Never ask a question to which you do not already know
the answer. Cross-examination is not an examination
before trial. It is ha dly the occasion for discovering what
the case is all about. If a lawyer doesn’t already know
what the case is all about, he shouldn’t be trying it. This
fourth commandment is • direct corollary of what I said
earlier concerning the secret of cross-examination.
Knowing before the trial starts what he will argue in
summation about a witness’ credibility, the advocate also
knows the Information he needs to support that argu-
ment; and in cross-exam nation he will seek nothing else.
Hence the advocate always knows the answer to the
question before he asks it. If he doesn’t know the answer,
-------
he won’t ask it. Two qualifications are necessary here.
First, even though he does Dot know the answer, a good
cross-examiner may ask a question when be does not care
what the answer is. Second, It Is possible not to know the
The advocate always
knows the answer before
he asks the question.
answ r to a particular question at the start of the cross-
examination, but to discover the answer by cunning use
of preliminary questions to which the answer Is either
known or unimportant. The advocate closes doors, he
eliminates possible explanations, and gradually escalates
himself to the point where he does know the answer . He
has learned it in the course of the cross-examination, and
so he may now ask the question. -
V
Listen to the answer. From time to time, a witness will
say something extraordinary. It Is contradicted by other
testimony; it is contrary to human experience; It Is incon-
sistent with the way the universe is organized. Yet the
cross-examiner goes heedlessly on, as If somehow he
hadn’t heard the answer. Correct. He hasn’t heard the
answer, and the reason he hasn’t heard it is that he
wasn’t listening, and the reason he wasn’t listening is
that he was so immersed in his own fright that he had left
no reserve of attention for listening to the witness. Now,
fright Is natural, but if the lawyer wishes to be a true
advocate, he must train himself to overcome It. Not that
fright ever disappears. It does not. It must be mastered,
however, controlled, limited, so that the cross-examiner
can turn from himself and listen to the witness.
VI
Do not quarrel with the witness, It is only human for
the cross-examiner to be tempted to respond to the
witness’s absurd or patently false answer with “How dare
you say that?” or “Do you really expect the jury to
believe such bilge?” Resist the temptation. To quarrel
with the witness is unurbane. It infallibly elicits a sus-
tained objection on the ground that the question is argu-
mentative. And it serves to permit the witness to ration-
alize an absurd or patently false answer, diminishing or
altogether avoiding its adverse Impact on the jury.
Better, should the witness give such an answer, for the
advocate simply to $4.0-p.
vn
Do not permit the witness to explain. The good advo-
cate asks leading questions only, as required by the third
commandment, questions to which he already knows the
answer, as required by the fourth commandment, and
questions which do not quarrel with the witness, as
required by the sixth commandment. He gets his “yes”
or “no” or “I don’t know,” and briskly moves on. He
does not permit the witness to explain an answer, for that
would be to hand control of the cross-examination to the
witness, and the good advocate allows no one but himself
to control the cross.ezamlnatlon. Of course, the judge
may Interrupt and give the witness an opportunity to
explain. That is one of life’s misfortunes, And, of count
the proponent of the witness may come back on redirec.
examination to elicit an explanation. Let him. Do not do
it for him. Possibly he will neglect to do It, and in any
event, to the jury the explanation that comes later always
has the false ring of an afterthought.
vifi
‘I
Do not ask the wltne to npeat the testimony be gave
in erect ev ”ibi.’on . If the jurors bear something
once, they may believe It or they may not. If they hear it
twice, they will probably believe It. And if they hear it
three tines, they will certainly believe It. Thus, when a
lawyer asks a witness on cross.ewination merely to
repeat his direct testimony, all he accomplishes is
elevation of the witness’ credibility. What had been a
perhaps becomes a doubtless. That, dear Titus, is not
the purpose of cross-examination. And has it struck you
that the law of evidence makes it easy to obey this coin-
mandment? It specifies many subjects Into which a
lawyer may inquire to discredit a witness without ever
permitting the witness to repeat his direct testimony. But
more on this in the letter I will write you after the Senate
adjourns.
Ix -
Avoid one question too many. After a while, the advo-
cate develops an instinct for this commandment. He
cross-examines; he asks an especially good question; he
gets an especially good answer; and he stops. Without th
instinct, he will ot stop. He pursues the point with..
question following up on the especially good question.
Sometimes, as he asks It, the cross-examiner says to
himself, ‘I just know I shouldn’t ask this.” But tao late.
The question has been asked. It cannot be recalled. And
invariably it turns out to be one question too many.
x
Save the explanation for summation. Assume this
case: a lawyer has conceived in advance of trial an un-
answerable argument to make to the jury in summation
about the credibility of an opposing witness. The argu-
ment rests upon information the lawyer can obtain by
cross-examining in scrupulous compliance with these
commandments. The only difficulty is that the argument
Is so prQfound, the cross-examination so masterful, that
the jury will not then and there, while the cross-examiner
b cross-examining, grasp the point of the cross-exam ma.
tion. The lawyer now feels the desire to draw out the
cross-examination so that the jury comprehends at once
- the nature of the questioning and the brilliance of the
questioner. Should he succumb, he is lost. In drawing
out the cross-examination, it is Inevitable that the lawyer
will violate one or more of these commandments and
thereby dissipate the force of the cross-examination. All
the better for the lawyer that the jury not understand.
- (Please rim i to page 49)
20
-------
Working the Witness uzzje
(Co Uinued from ge 13)
probability since your upset win suppoet your sb.osy
and if your expert it more persuasive, be may shake the
Jury’s confidence In your opponents upert . Thus it
siways the hope that you win gain iiik lon of an
shernative probability. You won’s ksvs much of $
problem If you took $ good deposition. You kn bow
the expert will testify. You will undoubtedly ha’s had to
pay his wittiest fee, but It it usually money well spent .
At the experts deposition, look far and 07 to develop
uncertanties and qualifications In bit theory. Moat
apero win a iwit there it a pomibilky that there it
another ezpIanado and even that he has occasionally
been vosg. Use caution in probing for qualified opin.
ions on eroat at thai If you have not developed the
qualification In the depoirtion. Experts have a way of
becoming convinced of the certainty of their cpinious
when they are attacked. It is tituafly unwise to Insist on a
yes or no answer from an expert . Let him qualify and
then use his qualifications during your dosing argument
to show his uncertainty and unrespontiv cu ,
Use your expert to help you prepare for cross.eum.
ittation of your opponents expert. Have him show you
where to probe for weaknesses In the pwcudure and
methodolo ’ adopted by the expert in rouching bit
opinion. Perhaps the expert skipped some steps In $
known process or (ailed to perform rocognized tests. Get
him to point them out and have your opponent’s expert
admit these omissions.
If your opponents expe is testifying strictly on the
basis Of hypothetical question, bring out the fact that
has so personal kaow1e ge of the facu. Vazy the
hypothetical and ask the wltseu how the change would
aftoct hit opinion. This Is excellent as $ method of testing
the expert’s knowledge and fairness and as a preface for
your expert’s tvetlmony , It it sff.cth If you can Isolate
ch factor the wlto g has itsi d as supporting his
opinion and then Inquire hypothetically whether the
removal of that factor would sftect his opinion. Find a
wenk link, one piece In the pii i , and you have the basis
far some effectht argument d rizg your eloving
argument. Always 07 to gain an adfulission that a con.
tradicring source it well k ow .
are hn’tiin hemp, and they are most
unusual If their testimony it unbiased. disinterested and
completely honest. It is usually colored and partisan. As
an advocate, you must educate them and akt them put
ailde their partisanship. John A. Wilson dosed an ex•
caflent paper on common sense in advocacy as faflowa
No one Is mote conscious than I that I have been
gMng rather freely, much advice on a ‘sty old and
most dlf!lcult subject. And, therefore, let me con-
clude on a note of caution and admonition both to
myself as ‘eU as to you: As & noted woman advo-
cate. Portia in The Merek of Vouice. put
1f to do were as easy to know what were good
to do. chapels had been churches and poor
men’s cottages princes’ p2l rrs
It is certainly .-asi ’-rto ditcuss methods of presenting
witnesses effectively than to present witnesses quietly,
smoothly, clearly, pervasively and elegantly, but the dif-
ficulty does not excuse the effort.
The Witness Needs Help
(Continued from poie 17)
scnztiny the whole tune he is in the courthouse. The judge
or jury may observe him in the corridors or sitting in the
back row. It is Old-fashioned to dwell on clothes and
grooming, but I belicvc a witness is entitled to know that
u..-wsugj clothes look much more unusual from the
witness stand. While the witness must be comrtable,
the judge and jury must find him plausible. and If his
clothes or manner az . to their perception, grossly
inconsistent with the role he verbally portrays, plausibility
is undermined.
I have not dealt with the difficult ethical questions that
can arise in preparing a witness for deposition and thai.
Dean Monroe Freedman did so In the Spnng 1976 issue
of Lmcay o, . In his article (Cou,ue& the Qiv Pr
freshi,,: Recol1rrrzcm or Prompn .’ g PerjwyY), bs na
the difficulty of being certain that, the witness understands
the Impact of what he says, while avoiding the
encouragement of fuse recolleet .orworse. A good trial
lawyet knows what rinp true, at least by the time of trial,
and the ethical 1iw er (the practical one, too) will
naturally (and geutly , assuming good faith) guide his
client toward the avoidance of incotsect recollection and
Charactcr ation. There are many situations., however,
where the lawyer’s instinct will bit of so help, and the
dilemma posed by Dean Freedrrian remains mch.
The elaborate suggestions I have made may smack of
theatrical staging. If so. It is sot the methods suggested foe
preparing the witness that are the but the discovery
and thai proces es themselvu. It is not the function of this
artide to ponder whethet adequate preparation of a
witness. a-nd other such 1aw er’s techniques. assist or
deter the.scarch f or truth. Again ethers have done so (for
example. see TAeSeareli for Truth—An Umpired View.
by ..District Judge Marvin E. Fankel, 30 Rzcoa
N.Y.C.B.A. 14(1975)). The oral deposition and thai are
artificial events, and it i not a public service to rebel
agi nst that fact at the expense ott particular witness or
client. The witness deserves., and desperately needs, the
exercise of the Lawyers highest tkllls-
34
-------
AU’S AND PRESIDING OFFICERS
I. AU’s
A. Are chosen under a nationwide selection process
— Have extensive trial practice experience before
becoming AUJs
B. Work full-time on hearing administrative cases
1. Class II administrative enforcement cases
2. Permit term appeals
3. Other administrative cases assigned
C. Have heavy caseloads
1. Only seven ALJ5
2. Each typically has about 140 active cases
D. Need to treat AUg with respect
1. Serve pleadings promptly
2. Ask for any extensions well beforehand
3. Be thorough in preparation of filings
4. In enforcement actions, only include counts you can
prove by a preponderance of the evidence
5. Prepare thoroughly for the hearing
6. Do not present truckloads of documents
II. Presiding Officers
A. Are selected by the Regional Counsel and ORC Branch Chief
- Typically have administrative hearing experience
B. Work part time on hearing administrative cases
1. Class I administrative enforcement actions
2. Listing proceedings
-------
—2—
3. Only hear cases brought by the ORC Branch the
Presiding Officer is not in, to prevent conflicts of
interest
C. Have light administrative caseloads, but must fit case in
with their normal workload
D. For Presiding Officer hearings less thoroughness and
formality is required, but still must meet same burden of
proof
- Presiding Officer should still take this duty
seriously to insure that there is a fair, objective,
adjudication
III. Office of the Chief Judicial Officer
A. Chief Judicial Officer reports to the Administrator
- Has staff of six lawyers helping write appeal
decisions
B. CJO and staff work full time on deciding appeals
1. Appeals from AU decisions on penalty cases and
NPDES permit appeals
- Chief Judicial Officer writes decision for
Administrator’s approval and signature
2. Appeals from Regional Administrators’ decisions on
RCRA, UIC, and PSD permit terms
— Chief Judicial Officer signs appeal decisions
3. Appeals from EEOC Hearing Officer on EEO cases
- CJO writes decision for Administrator’s approval
and signature
C. Appeals decided by CJO/Administrator may be from EPA or
violator/permittee, or may be sua sponte
1. Appeal is based on the record (administrative record
or hearing record) and on the briefs filed with the
appeal
2. Appeal from CJO/A’s decision is to federal court
D. Caseload is 100-120 cases per year
-------
IV. Ex Parte Communications
A. Are prohibited
B. Purview of prohibition
—3—
-------
HOW NECESSARY IS THE ADMINISTRATIVE
LAW JUDGE?
GERALD HARWOOD
lii
U 9261 ! i 911 Reprinted from
WESTERN NEW ENGLAND LAW REVIEW
Volume 6. Issue 3, 1984
tj FIC [ OF RLG Gl’ ,’ . CUUWJLL Copyright® 1984 by Western New England Law Review
[ PA — RL(10N X Association, Inc.
-------
HOW NECESSARY IS THE ADMINISTRATIVE
LAW JUDGE?
GERALD HAR.WOOD
Having administrative law judges preside in administrative cases
affecting individual rights and liabilities is being criticized today as
an outmoded procedure except in “accusatory” cases where a person
is charged with wrongdoing. The purpose of this article is to examine
the arguments behind this criticism and to demonstrate that the al-
ternative procedures which are proposed, contrary to the claims
made for them, are not likely to improve the quality of decision-
making , and can, in fact, destroy the effectiveness of the procedure
by undermining public confidence in it.
I. DiE A sm m’a L.’ w JUDGE
The administrative law judge is an employee of the agency over
whose heanngs he pre!des.’ He is, however, largely independent o
the agency. His pay is fixed by the Office of Personnel Management; 2
he can be removed only for good cause established and determined
by the Merit Systems Protection Board after a hearing, 3 and his per-
formance cannot be rated by the agency. 4 In addition, his impartial-
ity is assured by a rigorous “separation of functions” which
insulates him from any supervision or direction by agency employ-
ees who have taken part in the investigation or prosecution of the
case being heard, and which also prohibits him from consulting ex
pane with any person on any fact in issue. 5 The athninistrative law
judge, however, is not the final decisionmnlrer. He plays only an in-
Admthiutraüve Law Judge, Envuc@mental Pro.aaon Agency, mace 1976. B.A..
Yale Unv iit , 1942,, LLL Hss,sd Law Sthool . 1941.
Th as e w as wnuen by the author as his private capeelty. No official support or
endocntrl by the United States Envuoamcatal Pm ” ’ non Agency is intended or
should bs thfcnet
1. 5 U.S.C. § 3105 (19*2). On o n . when an agency finds itself understaffed
with - isüve law ju4g e , ii may temporsnly bwow a judge selerted by the Office
o( Personnel Manegomeni from another agency. 5 U.S.C § 3344 (1982).
2. 14*5362.
3. Id §7521.
4. Id § 4302, 4303.
5. Id § 5S4(d).
793
-------
794 WESTERN NEW ENGLAND LAW REVIEW [ Vol 6793
termediate role. It is the agency which is the final decisionmaker and
it has broad discretion in overruling the administrative law judge. 6
II. ADMINISTRATIVE HEARINGS
The use of independent hearing officials stems from the due
process requirement that an agency must afford a person a hearing
before it takes action affecting that person’s liberty or property. 7 It
was a response to the concern that agency employees, advocating a
particular agency action against a claimant who disputed the propri-
ety of the action, should not also act as the judge of that dispute. The
final solution was a compromise between those who thought that
there should be a complete separation between agencies that prose-
cute and agencies that decide, and those who feared that separating
those who make policy from those who determine disputes regarding
its application would frustrate the agency’s ability to put its policies
into effect. 8 Under the compromise embodied in the Administrative
Procedure Act, a distinction is made between rulemaking and adju-
dication with different minimum procedural requirements for each.
In rulemnking, an indepenaeiit hearing officer and the concomi-
tant separation of functions is not required unless a regulatory stat-
ute specifically provides otherwise. This is true because rulemaking
is regarded essentially as setting policy to govern future conduct. 9
Adjudication, on the other hand, consists of those cases which
terminate in the issuance of an order against a specific party; “order”
being defined to include the grant, modification, or denial of a ii-
6. Universal Centers Corp v NLRB, 340 US. 474, 489-97 (1951), and FCC
Allentown Bro dcasnng Corp., 349 U.S 358, 364-65 (1955) (rejecting the ‘clcariy errone-
ous” standard for agency review of administrative law judge’s decisions) See 5 U S C
§ 557(b) (1982), loIn appeal from or review of the initial decision, the agency has all the
powers which it would have in mhklng the initial decision except as it may limit the
tunes on notice or by rule,” and ArroPJ4Ey GeNeL’ L’s MANUAL ON ThE ADMINISTL4I-
TWE PnocEDuP.n AcT 83 (1947) [ hereinafter cited u MANUAL) In some recent statutes,
review more closely approximates the clearly erronecus standard. See, eg.. 30 U S C
§ 820 (1982). providing that initial decisions reviewed by the Federal Mine Safety and
Health Review Commit ion shall be athrmcd if supported by substantial evidence As.
sii .ng that this is the same standard that is followed by the appellate courts in reviewing
atnhinitranve decisions, the MSHRC would have to give an initial decision the same
weight that a district court would have to give a jury verdict. See Consolo v Federal
Maritime Comm’n, 383 U S 607. 620 (1966).
7 Morgan v United States, 304 U S I. 14- 15 (1938)
8 S e Davi*, S pa’waon of Fw,cn AôwwrranveAgeiscse . 61 HARV L Riv
389 (1948). Woog Yang Sung v McGrath, 339 U S 33, 37 (1950), Butz v Economu. 438
US 478, 513-14 (1978)
9 5USC 553(I982 ) ,MA.NuAI.,.n ronoIe6,at14
-------
1984) NECESSITY OF ADMINISTR 4T/VE LAW JUDGE 795
cense or perm i t.’° In such cases, the separation of functions require-
ment does not apply if the agency or one of its members presides
over the adjudication. This is in recognition of the fact that the
agency is to be the final arbiter of both policy and its application to
specific cases.” As a practical matter, however, the sheer volume of
cases generally precludes the agency or one of its members presiding
over these cases. If the agency or one of its members does not pre-
side. the presiding officer must be an administrative law judge (who
originally had the title of “hearing examiner”) and, except in appli-
cations for “initial licensing,” the separation of functions require-
ment also applies.’ 2 In initial licensing, the administrative law judge
presides over the conduct of the hearing but there is no separation of
functions and the intermediate decision (initial or recommended)
can be rendered by any responsible agency employee.’ 3 The reason
for treating initial licensing in this fashion appears to have been that
while the rights of individuals are involved in initial licensing cases
as well as in other adjudications, initial licensing is also considered
to have some of the policymaking characteristics of rulemaking.’
As to the hearings, themselves, rulemaking requires only notice
of the proposed agency action and the opportunity to comment upon
j •I5 There is no right to an oral hearing.” Adjudicative hearings, on
the other hand, are modeled after the traditional judicial procedures
for deciding controversies. ’ 7 The party against whom the agency
proposes to take action must be given notice of the issues of law and
fact asserted to support the proposed agency action.’ 8 The party has
the right to present its case by oral or documentary evidence, and to
conduct cross-ex amination.’ 9 The evidence is presented systemati-
cally in accordance with established rules allocating the burden of
proof. 2 ° The decision rendered must not only be based upon the rec-
ord, but the facts relied on must be supported by the evidence of
10 See definition of ‘Adjudicauon” ,n 5 USC § 551 (1982)
Ii. 5 Usc §554 (d)( 1982), MAP’UALfl OI .a note 6.at 58
12. 5 U S.C. § 554(d) (1982)
13. 5 U S.C § 557(b) (1982).
14. Id. M uAl.. iiipra note 6. at 50-51.
IS S USC §553 (1982)
16. Set id Notice and comment can satisfy the statutory requirement for a hear.
tag in an appropnate case even though the only participation allowed is the submi.ss,on
ofwnnenviews UnitedStatesv FlondiE .utCoaszRy Co.4IOUS 224(1973)
17 See, 554
18 Id §556(b)(3)
19 Id §556(d).
20 Id
-------
796 WESTERN NEW ENGLAND LAW REVIEW [ Vol 6793
record, 2 ’ a requirement not necessarily present in rulemaking.22 Fi-
nally, of course, a hearing not presided over by the agency or one of
its members, must be presided over by an administrative law judge. 23
III. THE FUNCrION OF THE ADMINISTRATIVE LAW JUDGE
In presiding over adjudicative hearings, the first duty of the ad-
ministrative law judge, and one certainly important to the mainte-
nance of public confidence in the process, is to assure that the parties
are treated fairly and that rulings on requests and objections made
by the parties are even-handed and impartial. Second. and of equal
importance in those cases where the administrative law judge does
render a decision, is the duty to state his findings on all issues of law,
fact and discretion with supporting reasons. 24 There is value to both
the public and the agency in having the administrative law judge
preside over agency adjudications: The judge is free from any insti-
tutional pressures influencing a particular result. Tbis is most impor-
tarn, of course, in the finding of facts. On questions of policy, the
judge must follow agency policy as reflected in published agency nil-
ings. Even with regard to questions of policy, however, ‘iere can be
conflicting policies to apply to a given set of facts, or questions may
be raised as to how a particular policy should be interpreted. The
administrative law judge can perform a useful service in sharpening
the policy issues for the agency’s consideration in these cases. 25
While the agency has broad discretion to overrule the adminis-
trative law judge, ignoring his decision entirely may result in reversal
.onjudicial review. 2 ’ The Supreme Court has stated that the adminis-
trative law judge’s findings should be given such weight as “in rea-
son and in light of judicial experience they deserve.” 27 In practice,
this has meant that special weight has been given the administrative
law judge’s credibility findings based upon his observation of the
21. Sev id § 556(d). 557(c): 706(2XF) For the proposition that an agency is not
tied to the record in informal nale ,niking see MANUAL ipa note 6, at 31.32 The
Cowls. hOWever, have been reluctant to permit an agency to rely on factual matenal
whsch was Dot made part of the ru.lemhking record before the agency and available for
commiu . although in a few instanoss they have allowed this. Se eg. Nat’l Assa of
Demohuon Contractors v Costle, 565 F 24 748. 752 (DC Cit 1977)
22. S.v §553
23 5 U S.C § 556(b) (1982)
24 S ’v5USC §557(c)(l982)
25. Se MANUAL. ikpra note 6. at 84
26 ASO Indus.. Inc v United States. 548 F 24 147 (6th Cit 1977)
27 Universal Camera Corp v NLRJ. 340 US 474. 496-97 (1951)
-------
I984J NECESSITY OF ADMINISTRATIVE LAW JUDGE 797
witnesses. 28 Findings that are based on the inherent probative value
of testimony or documents and the inferences to be drawn from the
primary facts are generally entitled to less weight than the credibility
findings, but must still be considered and, where not followed, the
agency should either expressly give its reasons for its disagreement
with the administrative law judge, or the basis for the disagreement
should be apparent from the agency’s decision. 29 On questions of
law or policy, the administrative law judge’s conclusions probably
have little if any weight. Nevertheless, ventilation of the objections
and reasons for the policy or law being applied can expose flaws not
previously recognized, and it would be sound practice for the agency
to give careful thought to the administrative law judge’s conclusions,
since a reviewing court may find the judge’s reasoning persuasive. 30
In sum, the administrative law judge protects those who deal
with the agency from arbitrary or unwise action by providing the
agency and the reviewing court with an impartial assessment of the
merits of the objections made to the agency’s action.
IV. THE ARGUMENTS FOR DISPENSING WITH THE
ADMINISTRATIVE LAW JUDGE IN “NON-ACCUSATORY”
CASES
As part of a broader attack upon the adjudicative proceeding as
a method for decisionmaking, Mr. William Pedersen and Professor
Davis have advocated dispensing with the use of administrative law
judges in certain proceedings on the grounds that many complex
technical issues which arc now being decided by adjudication are
really policy or “legislative” issues. 3 ’ To have such issues resolved by
procedures which require separation of functions and proof through
witnesses who are subject to cross-e; min uon is thought to be un-
duly time consuming, a waste of resources and generally not helpful
to the agency in reaching a final decision. 32
28. Id at 496.97.
29. Cinderella Career & Ftnithtiig Schoola, Inc. v. FTC. 425 F 2d 583. 585.89
(D.C. Cv. 1970); NLRJ v Interboro Contractors Inc., 388 F 24495.501(24 Cit 1967)
30. S ve Riaudll Stover Candies. Inc. v FTC, Trade Rcg. Rep (CCH) (1983-2
Trade Cases) Pit 65,640(8th Cit 1983), ASG mdi ii., Inc. v United States, 548 F 2d 147
(6th Cit. 1977).
31. 2 K.C. D*vis. ADMINISTRATIVE LAW T n. iisa § 12.7. 12.8 (24 ed. 1979). 3
K.C DAVIs, Ao awIs1 RMwE LAW Ta nu § 141 (24 ed. 1980). uv gewrallv Peder-
see. 7 Deth,, c / Sçc anos of Fw,ctao u i RqwIaio y 4 ’escier. 64 VA L. REv 991
(1978).
32. 2 K.C DAy JSI(pF i7 note 31. at 12.7, 128,3 KC DAvIS,J1 ,pra note 31. i i
§ 42. Pedersen. . pw note 31. at 1008-10
-------
798 WESTERN NEW ENGLAND LAW REVIEW (Vol 6793
To evaluate the arguments, two concepts must be considered:
First, the distinction between “legislative” and “adjudicative” facts;
and second, the distinction between “accusatory” and “non-accusa-
tory” hearings.
“Adjudicative” facts are those facts which are peculiar to a par-
ticular party while “legislative” facts are the background facts that
the agency considers in formulating policy. Professor Kenneth Cuip
Davis, who originally framed the analysis. has cited Londoner v.
Denver, 33 and Ri-Metallic Investment Co. v. State Board of Equaliza-
tion , as illustrative of the difference between the two kinds of
facts. 3 ’ The Supreme Court in United States v. Florida East Coast
Railway Co. ,36 used these two cases to distinguish between rulemak-
ing and adjudication, but the Court’s language also sheds light upon
what it would regard as adjudicative facts and what it would regard
as legislative facts:
The basic distinction between rulemaking and adjudication is il-
lustrated by this Court’s treatment of two related cases under the
Due Process Clause of the Fourteenth Amendment. In Londoner
v. Denver, . . . the Court held that due process had not been ac-
corded a landowner who objected to the amount assessed against
his land as its share of the benefit resulting from the paving of the
street. Local procedure had accorded him the right to file a written
complaint and objection, but not to be heard orally. This Court
held that due process of law required that he “have the right to
support his allegations by argument however brief, and, if need
be, by proof however informal.”. . But in the later case of B,-
Metallic Invesonent Co. v State Board of Equalization,, the
Court held that no hearing at all was constitutionally required
prior to a decision by state tax officers in Colorado to increase the
valuation of all taxable property in Denver by a substantial per-
centage. The Court distinguished L.ondoner by stating that there a
small number of persons “exceptionally affected, in each case
upon individual grounds.” 3 ’
Adjudicative facts were those relating to the specific assessment
ag inct the plaintiff in Londoner while legislative facts were those
that the state officials took into account in increasing the assessments
generally in Ri-Metallic Investment.
33 210 US 373(1908)
34 239U.S 441(1915)
35 3KC DAvIs,JkpranoIe3i,a1 I45, 154
36 410 US 224(1973)
37 Id ii 244-45
-------
I 984J NECESSITY OF ADMINISTLq TIVE L4W JUDGE 799
Florida East Coast Railway, itself, was an action by certain rail-
way companies challenging a rule promulgated by the Interstate
Commerce Commission (ICC) setting incentive per diem rates to
speed the return of extra freight cars and to encourage the purchase
of new ones. 38 The rule was prompted by a chronic freight car
shortage. The existence of the shortage was a legislative fact. Indeed
the shortage was so well known that Congress enacted legislation
giving the ICC authority to set Incentive rates. 39 The schedule of per
diem rates was also found by the Supreme Court to be a legislative
fact because it applied to all the railroads, and it denied the railroads
an adjudicative hearing on those facts even though it was claimed
that the burden imposed by ICC ’s rates would be a greater imposi-
tion to some of the railroads than to the others. 4 °
The real focus of Florida East Coast Railway is on the general
applicability of the rates to all railroads. What about an individual
railroad which claims that the rates should not apply to it because of
its peculiar facts? Under the Supreme Court’s analysis, it would
seem that the company would be entitled to an adjudicative hearing
on this question. It is in such a case that the distinction between “ac-
cusatory” and “non-accusatory” cases would arise, for the issue
would not be whether the party has engaged in misconduct but only
whether it is entitled to be treated differently than the other compa-
nies. Similarly, a case in which the agency seeks to revoke or modify
a permit for technical reasons and not for any wrongdoing by the
party would also be non-accusatory. The argument is made that in
such cases, notwithstanding the fact that the rights of individual par-
ties are being decided, the decision is really based on the determina-
tion of legislative facts for which adjudicative proceedings are not
appropriate. 4 ’ Let us examine more closely the merits of this
argument.
Initially it should be noted that an adjudicative hearing on a
waiver from a rule is not concerned with the merits of the rule, but
only with whether its application under a particular set of facts
would be arbitrary. Whether such application would be arbitrary is
determined by the policy served by the rule as set forth in the rule’s
statement of basis and purpose. There would be a right to an adjudi-
cative hearing only if the facts urged to support the waiver were dis-
38. Id.
39. Id at 225.26.
40. /dat225n.I
41 PederIeE.Ji p,c note 31. at 994-96.
-------
800 WESTERN NEW ENGLAND LAW REVIEW [ Vol 6793
puted. If the facts urged in support of the waiver were not disputed,
there would be no need for an adjudicative hearing to resolve ques-
tions of policy. 42 Similar considerations would also apply to persons
who contested their coverage under a rule on the grounds that the
facts with respect to them were completely different from the facts
considered by the agency in promulgating the rule.
The right to an adjudicative hearing on the facts can also differ
depending upon whether or not the agency is the moving party. No
useful purpose would be served by giving a party who applies for a
waiver or permit a hearing on the denial of the application when the
action is based solely upon undisputed facts produced by the appli-
cant. On the other hand, when the agency seeks to move against a
party on the basis of facts that it believes justifies the action, the
agency’s refusal to accord a party an adjudicative hearing should be
more carefully scrutinized. Without a hearing on the facts a party
may have no real protection against arbitrary or misguided action by
the agency. 43 In short, the party that has the burden of producing
evidence to make aprimafacie case (as distinguished from the bur-
den of persuasion)” c be an important factor in determining the
hearing rights of the parties.
The criticism is directed at the use of adjudicative proceedings
to resolve disputes over difficult technical issues where the data
42. See United Sisies v. Storer Broadcasting Co., 351 U S. 192, 205 (1956), Indus-
trial BroaAauting Co. v FCC, 437 F 24 680, 683 (DC. Cir 1970), KCST-TV, Inc. v
FCC, 699 F.2d 1185, 1191 (DC Cit. 1983).
43. Cne ’vCooperLaborazonesv Comm’r,SOl F2d772(DC Cit 1974) scth
Pactre Indus. v. Products Safety Comm’n., 555 F 24677(9th Car. 1977) In Cooper Labo-
Fa1o1 , the a new drug appbcauon was summarily rejected without a hearing because of
the applicant’s failure to produce substantial evidence showing that the drug was safe
and effective. Under the law the burden was on the new drug applicant to come forward
with mich evid and the Food & Drug Adminisarnuon’s authority to require an cvi-
dentaaiy showing meeting speak standards in order to be entailed to an evidenuary
hearing on the re,ec n of an application had been upheld by the Supreme Court. See
Wesnbazg. t v. Hynion, Wesicoti & Dunnii Inc., 412 d.S 609 (1973) (dealing with the
standards required to show the safety and efficiency of new drugs). In Factra I5thjsrnes it
was held that the Consumer Products Safety Commission could not su?nn rily reject
oh,eonons to a ban at had issued . png the use of vinyl chloride monomer The ban hid
been baled on saenuSc evidence indicating th.at the vinyl chloride was a carcinogen In
this instance the burden was on the CPSC to establish the validity of its ban and the
court held that the agency could not sum ’nmrlly dispose of the case without a hearing
when the scientific evidence was disputed. 555 F 24 as 684-85
44. On the distinction between the burden of producing evidence and the burden
of persuasion, see McDonneU Douglas Corp v Green, 411 U S. 792, 800-06 (1973). En-
vuonmentsl Defense Fund, Inc. v EPA. 548 F24 999, 1012.18 (DC Car 1976). cert
dewed, 431 U.S. 925 (1977)
-------
1984) NECESSITY OF ADMINISTRATIVE LAW IL/DOE 801
available iS likely to be mcomplete. 5 Ideally, such an issue would be
decided by gathering the best qualified experts within the agency
and amving at a consensus as to what action most closely would
accord with the statutory objectives. The decision thus made would
be an “institutional” one, and not simply the product of one person.
Such a view, however, overlooks the practical way in which an
agency usually works. Usually, the agency action is taken only after
the matter has been investigated and the action recommended by
agency employees. It would be unrealistic to ignore the danger that,
in the process of making the investigation and securing agency ap-
proval, those employees to some extent will have become cominiued
to a position. From the viewpoint of the party who opposes the
agency action, the agency is likely to be regarded as much an adver-
sary as if the proceeding were accusatory, especially if the agency
action turns on sharply disputed factual matters. Such a party may
be, for example, one who believes that such action does not ade-
quately protect human health or the environment, or who believes
that such action will unnecessarily restrict his freedom to market a
product or to construct a plant. In each of these cases, that the party
has not been ctuuged with wrongdoing may seem minor when com-
pared to the consequences of the agency’s action to that person’s
health or livelihood.
It is, of course, true that the ultimate decision as to which side
the agency takes in a scientific dispute is likely to be more a policy
choice than a factual one, so that it should be judged solely by
whether it is consistent with the statute and reasonable. 4 ’ This, how-
ever, should not be a reason for reducing the hearing rights of the
parties with respect to developing the facts and meeting the evidence
opposed to their position. A good example is the case of Seacoast
Anti-Pollution League v. Cost/c, 47 in which a nuclear-powered elec-
trical utility plant applied for a permit to discharge heated water into
the surrounding waters. The issue was not whether heated water is a
poUutant but whether the discharge of heated water in :ha r instance
would injure the marine life and biota in the vicinity of the plant. 48
The parties opposing the building of the plant in that area were pub-
lic interest groups. The Administrator, in deciding that the discharge
45 Pedenen, pra notc 31. ai 995-96, 2 K.C D*viz, noi 31, ii § 12 7.
12.8.
46. Sit [ dus*ns1 Union Dep’t v Amen n Petroleum InIL. 448 U S 607. 656
(1980); Industry.! Unico Dep’t v Hodpon. 499 F.24 467. 476 (DC. C&r. 1974)
47 572F2d872( 1978)
48. Id at 874-75
-------
802 WESTERJI NEW ENGLAND LAW REVIEW (Vol 6793
would not injure the environment, relied upon the report of a panel
of agency experts which had not been made available to the parties
and contained references to material not in the record. On review,
the court noted that the issues in the case turned upon the credibility
of the experts, who should be subject to crosS-ex mmatlon for a
complete disclosure of the factual grounds for their conclusions. ’
The court also found that the facts upon which the opinions were
based must be facts in the record and not extra-record information
of which the experts had knowledge but which had not been dis-
closed to the other parties. 5 °
The court obviously believed that developing the facts through
adjudicative procedures was important to ensure not only that the
agency had all relevant facts before it, but also that the reviewing
court had a complete record. Cross-ex amination of scientists can-
not be dismissed as a worthless exercise, for it is a most effective way
of disclosing the factual underpinning of a scientific opinion and the
assumptions that were made in arriving at it.
Professor Davis faults the court for requiring trial-type proce-
dures to resolve what he regards as a legislative fact. 2 But the issue
was not the general proposition as to whether ieated water was a
pollutant, but the much narrower question of whether the discharges
from that plant would be a pollutant in that particular environmen-
tal setting. The public utility was seeking to show why they would
not. Thus, the court’s characterization of the factual issues as sharply
49. Id at 875, 881-82.
50 Id at 880. 881-82.
SI. The court stated liii determinations such as the one at issue here are not made
on the record , then the fate of the Heniplon.Scabrook Estuary could be decided on the
basis of evidence that a court would never - or, what is worse, that a court could not be
sure “ ur d ” Id at 877
52. 2 K.C. DAVIS. note 31. at § 12.7 Professor Davis cites the case of Taylor
v Dumer Flirneers . 567 F.2d 1332 (5th Cu. 1978), as an example of how Seacoast
should have been d ’4et It is questionable whether the comparison is an apt one Thy.
lo , involved the t.I by the Corps of P-ngweers of a çermit to build an s ’ highway
over navigable waters. The statute. 33 U.S.C §* 403,406(1976 & Supp. V 1981). made
no provision for a hearing before the Corps on the permit, and could be construed as
vesting complete disereuco in the Corps subject only to some limited court review to
determine whether the denial of a permit was arbitrary See Di Vosia Rentals. Inc v
Lee, 488 Fld 674 (5th Cu 1973), cited by the court in Taii’or. 567 F 2d at 1336 En
Serb,ook. the statute expressly required a hearing. (The court did not decide whether the
casewasbroughzunder33 USC §1326or l342.butbothrequuedapubLichcaring
See 572 F.24 at 875 n.3) Review of the administrator’s decision was in the court of
appeals on the evideauaxy record made before the agency See 33 U S C § 1369(b)
(1976). Thus. the court had ample grounds for ruling that the hearing required was an
adjudicative hearing.
-------
19841 NECESSITY OF ADMINISTRATIVE LAW JUDGE 803
contested and specific to the parties involved—in short, the typical
kind of adjudicative facts— seems accurate. 53
Davis and Pederson also argue that, even when the issues are
adjudicative, the separation of functions should be dispensed with
because it precludes the agency from taking advantage of its institu-
tional expertise. 54 Since that expertise most likely had input into the
agency’s position previously, it means either that those who were re-
sponsible for formulating the agency’s position initially will be
judges on the merits of the dispute or the matter will be reviewed by
some other agency employee. How neutral a reviewing employee
may be depends upon the internal organiiation of the agency and
the relationship between the employees within the agency. For ex-
ample, if the reviewing employee served under the same supervisor
who took part in deciding the agency’s initial position, the reviewing
employee might be reluctant to take a position which would conflict
with that supervisor. Further, the reviewing employee might be re-
luctant to overrule the original employees who participated in the
initial policy decision, if by doing so the reviewing employee may
meet with hostility. This will be true particularly if they meet on a
daily basis or if they are working togethet on other matters. It goes
without saying, of course, that the administrative law judge is not
subject to any such pressures.
Another objection to adjudicative hearings is that they are ex-
pensive and time-consuming.” It is questionable, however, whether
informal proceedings would be any less expensive. Such proceedings
53 SerS72F2dat876
54 Pedersen, a pra note 31. at 996-97. 1008-09, 3 K.C. DAVIS, JupFa note 31, at
§ 17 15
55 Pederien directs his objection to the expense incurred by having specialized
hearing officers, and concedes that the delay caused by having adjudicative hearings is
relatively minor. Pedemon. .ss o note 31. as 1008-10. One solution to the expense of each
agency having its own aa 4 fv InIttrauve law judges isto establish a separate corps of ad.
ministrative law judges such as is proposed by S. 1275,98th Cong. I ii Scsi. (1983) Pro-
feuor Davis also objects to the separation of functions u an inefficient use of agency
employees but also considers bearings permuting the use of ci ’oss -cimln uon to be an
unnecessarily expensive way to uy legislative facts. 2 K.C DAVIS, JkpFQ note 31. at § 12 8
at 441. As to factual questions such as the ‘ w”cc of a freight car shortage, this may be
trite. The difficulty with the analysis, which the author hopes is made clear by this article.
is that the line between what facts are “adjudicative” and what are “legislative” is not
always clear-cut insofar as the relative expense of adjudicative versus less formal proce-
dures is a factor in determining the hearing rights of the panics, it is to be nosed that the
Supreme Court as approached the qucs*ion of a party’s hearing rights in Social Security
disability payment cases by balancing the cost to the Government g nq the benefits to
the other side. See Mathews v Eldridge. 424 U S 319 (1976). See afro. Friendly. Some
xriudqaN g.l23u PAL Rnv 1267(1975)
-------
804 WESTERN NEW ENGI.AND LAW REVIEW (Vol 6793
involve not only presenting wntten submissions but also the oppor-
tunity to orally comment on the agency action which is often permit-
ted if the agency believes the case is important or of special interest
to the public. In fact, the only substantial additional expense created
by an adjudicatory hearing before an administrative law judge is the
expense of bringing witnesses to the place of hearing and making
them available for cross-examination. To say that cross-examination
is likely to be unproductive really reflects an unnecessarily skeptical
attitude toward finding the truth in scientific controvers1es. o The
validity of scientific opinions rests upon the soundness of deductions
drawn from empincal data, a full disclosure of the facts relied upon
and the reasoning behind the expert conclusions. Such inquiry can
only aid the agency in reaching an informed opinion about the rela-
tive merits of each side. In short, while an agency should be given a
good deal of latitude in deciding policy, this should not be a grounds
for weakening the fact-finding process by reducing the availability of
cross -examination.
Finally, the argument is made that, if cross-examination is nec-
essary to develop the record, this can be done more efficiently by a
pane 1 of experts presiding as an inquisitorial board than can be ac-
complished by lawyers conducting cross-examination before another
lawyer who is presiding as an administrative law judge.” If expertise
is required on the part of the presiding officer, an answer would be to
have administrative law judges, who are either expert in the regu-
latory fields in which the agencies are involved or who could call
upon expert advice for assistance. Certainly, no one can quarrel with
permitting administrative law judges to use expert advice, provided
it does not compromise their independence. Whether the administra-
tive law judge should be an expert in the regulatory field is a differ-
ent question; all that need be said is that the importance of expertise
on the part of the presiding officer may be overemphasized. It is rare
that the resolution of a scientific dispute involves matters so arcane
that they cannot be explained in terms comprehensible to a layman
of ordinary intelligence. Indeed, it is a useful exercise to require that
they be explained for it will not only aid the reviewing court whose
members may not have expert knowledge in the field, but it may also
eliminate reliance on technical jargon and help them reach a clearer
understanding of the issues.
56. Thi seems to be the real import of Pedeesens mment that when the facts are
di cuh to u nain. decisions are dicia’ed by policy rather than by the facts See Peder-
sen v note 31st 1012
57 Pedenen. p,a note 31.1* 1019. 1032-33
-------
19841 NECESSITY OF ADMINISTRATIVE LAW JUDGE 805
V. CONCLUSION
The administrative agency with its combination of
prosecutorial. legislative and adjudicative functions presently has a
good deal of flexibility in the way it cames out its mission. But the
agency can only be effective if the pubhc has confidence in the pro-
cess, a confidence created by the conviction that they have been
treated fairly and that the outcome is reasonable, even though they
may be unhappy about the ultimate judgment. The administrative
law judge helps to preserve the proper balance between the
prosecutorial, adjudicative and legislative functions of the agency. If
the agency, in its zeal to be more efficient, overrides adjudicative
safeguards in favor of strengthening its prosecutorial or legislative
functions, the courts may well feel the need to restore the balance by
exercising greater judicial oversight, with the net result being to sim-
ply transfer the cost of litigation from the agencies to the courts. It is
also possible that Congress may be persuaded by public opinion to
restrain the agency’s powers.
-------
National Environmental Enforcement Journal
May 1989
EPA ENTRY AND POST-ENTRY RIGHTS
WITH AND WITHOUT WARRANTS
BY JOHN A. HAMILL
I NTRODUCTION
This paper was written in an attempt to bring
some coherence and analytical structure to the
“crisis” issue faced by both EPA and private
counsel when the telephone rings and a stressed
voicc inquires: “EPA is here. They say they
want to inpsect. Can they do it? Do I have to let
them in?” Underlying those practical questions
is a host of others that might be asked: “What
rights do EPA personnel have to enter private
property? Where do those rights come from?
For what purposes can they be exercised? How
can one know whether EPA truly has such
rights? Does EPA have to have a warrant? What
happens if EPA Is interfered with?”
The topic’of governmental entry onto private
premises in connection with federal or state
environmental law enforcement is not dealt
‘ith holistically In the typical text. Yet that
turns out to be the point of Initial confrontation
for the adversaries In most major environmen-
tal cases. This paper strives to lead the reader
through the main issues in controversy on the
subject, leaving sub-issues to be probed at more
esoteric leisure. The analytical starting points
for the matters most likely to be issues of con-
tention between parties are suggested. Admit-
tedly, the paper espouses a viewpoint that sup-
ports governments’ prerogatives against pol-
luters.
BACKGROUND
A. Historical Note
The Fourth Amendn çnt to the United States
Con i1üitiöiFstatcsIIj
[ TJhe right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and
seizures shall not be violated; and no War-
ra az ts shall issue, but upon probab ’ ,
&tcd by O iih or a1fl atióri and
particularly describing the place to be
searched, and the persons or things to be
seized.
Thoughout two centuries, courts havc cxpandcd
on our understanding of the boundaries of this
basic right. Currently, under federal law, some
searchcs., scizurcs., entries, and inspections arc
constitutionally reasonable (with or without a
judicially issued warrant) and others arc consti-
tutionally “unreasonable” even if expressly
authorized by statute unlcssj pcrformcd pur-
suant to a judicially issued warrant or a “func-
tional equivalent” of such a warrant, per-
formed with the possessors’ consent, or
exempted by caselaw, as in the case ol per-
vasively regulated industries or where public
safety considerations prevail, from the warrant
requirement. Therefore, absent one of the
other two exceptions, 1/ in most instances
federal agents must hold j ici i1 iissucd war-
or a functio i quiVãT tto a warrant, Ibr
cntr ”rcasonable. ”
B. Generic Nature of Warrants
Generically, a “warrant” is crely “ [ a] writ or
precept from a competent authority in pur-
suance of law, directing the doing of an act, and
addressed to an officer or person competent to
do the act, and affording him protection from
damage, if he does it.” 2/
A judicial warrant is, first, an authentication
and, secondly, an authorization. Analytically, a
warrant confirms, corroborates, and verifies
that (I) a substantive governmental right and
power lawfully exists to enter premises and
there to perform specified post-entry activities;
(2) the holders of the warrant arc properly
authorized by law to exercise such substantive
power, and (3) the provisions and terms of the
warrant itself sufficiently circumscribe for con-
stitutional purposes the physical boundaries to
be observed and restrict the activities that may
be done there. Most importantly, where a sta-
tute confers a substantive entry right without
specifying a particular method for it enforce-
ment, 3/ an administrative warrant may issue 4/
to verify and confirm such rights.
Civil administrative warrants are inherently
similar to warrants issued under Rule 41 of the
Federal Rules of Criminal Procedure. Issues
such as staleness, descriptions of premises and
seizable itcms, and spccification of post-entry
activities arc, and should be, addressed by the
courts in the same manner in both instances.
Criminal warrant decisions arc, thcrcforc,
usable prcccdcnts for issues raised in adminis-
trative warrant cases except where considcra-
(ions unique to the criminal law arc involved.
-3-
-------
National Environmental Enforcement Journal
May 1989
Warrants can encompass a variety of activities.
Thcy arc not limited to praecipcs only for
searches or only for seizures. Narrow assump-
Lions concerning what a warrant may or may
not prescribe hamper proper legal analysis.
Such a constricted view is not supported by
legal authority or by analytical reasoning.
Administrative warrants are not inherently dif-
ferent from other types of warrants, despite
assertions to the contrary. 5/ Traditionally, all
warrants carry with them the power to do what-
ever is reasonably necessary to carry out their
commands. 6/ The significant difference
between warrants and other administrative
investigative tools is that warrants do not obli-
gate the possessor of the premises to take any
affirmative action. Other tools, such as subpoe-
nas, requirc an affirmative act or trigger a sta-
tutory duty. The administrative warrant vali-
dates, confirms, “crcdcntializes,” and author-
izes.
C. Provenance of Warrant Issuing
Authority
Disputes over the precise source of the power to
issue warrants arc somewhat idle. The most
satisfactory view is that the source is Article Ill
of the United States Constitution, granting the
federal judiciary general equity power. 7/
Prior to the decision in Marshall v. Barlow’s.
Inc., 8/ the appellate courts were stumbling
around in attempting to give effect to an
agency’s statutorily granted right to enter
premises. Some courts flatly said that “entry”
rights were to be effected through a warrant
procedure. 9/ Others, with some hesitancy,
agreed but only through a process of elimina-
tion. 10/
D. The Barlow’s Decision 11/
Finally, in 1978 the U.S. Supreme Court
decided Marshall v. Barlow’s, Inc., involving
the constitutionality of the Occupational Safety
and Health Act under which the Occupational
Safety and Health Administration (OSHA)
operates. in that decision, the Court condemned
the statute insofar as it could be interpreted as
allowing OSHA inspectors, through self-help,
to enter an establishment’s private areas without
a warrant, over the occupant’s objection, and
there to exercise statutory rights. The Court
confirmed the lawfulness of OSHA’s statutorily
created rights to enter premises but did so only
by interposing, through the Fourth Amend-
ment, a warrant requirement. The Court ruled
OSHA must first obtain a judicial warrant or its
functional cquivalent
The Court took care to point out that “cause” in
the administrative context meant a showing by
an agency that either (I) reasonable cause
exists to believe that a violation has occurred or
was occurring at the facility to be entered, or (2)
the facility to be entered was identified and
selected by the agency pursuant to a pre-
existing administrative plan or scheme for
entries, and that the plan or scheme was both
derived from “neutral sources” 12/ and
prepared prior to the application for the war-
rant. The Barlow’s decision explicitly noted
that the the “probable cause” language 13/ in
the Fourth Amendment did not apply to admin-
istrative warrants but only to criminal warrants.
14/ The Court’s message in Barlow’s was
equally clear that the government cannot,
through its field agents, unfairly “pick on” peo-
pie. 15/
E. Post-Barlow’s Caselaw
Most of the EPA-administered statutes have
provisions expressly authorizing the Adminis-
trator and his “authorized representatives” to
enter a facility and do various things after
entry. To date, the EPA-administered statutes
have not been successfully challenged on the
constitutional issue raised in Barlow’s. Gen-
erally, they have been challenged on the
interpretation of particular terms used in those
statutes. 16/
In practice, EPA conducts its affairs as if the
rules announced in Barlow’s also applied, in all
instances, to the environmental statutes. How-
ever, EPA has never conceded that the
Barlow’s decision is controlling with regard to
EPA’s rights under all the different statutes it
administers. 17/
Sometimes Congress statutorily provides that
an official shall “observe” or “monitor” certain
activities. Such a provision may not carry with
it a statutory right to enter any particular prem-
ises. Instead, it may mean only that those regu-
lated activities, conducted without such moni-
toring, arc unlawful. The “monitored” activities
arc usually unique. One such case was Balelo v.
Baldridge 18/ where tuna-boat captains were
permitted to take porpoises only so ldng as offi-
cial observers were aboard.
-4-
-------
National Environmental Enforcement Journal
May 1989
A case similar to Barlow ’s was United States v.
Cokman Evan Wood Preserving. 19/ There
EPA was attcmpting to cnforcc its right to enter
and conduct post-entry activities by civil action
instead of by warrant. Judgc Moore granted
EPA’s motion for an in personam order author-
izing EPA to enter the premises “at reasonable
times for the purpose of conducting response
activities under CERCLA” and enjoined the
defendants from interfering with EPA’s cxcr-
cisc of the rights confirmed by the court’s
order. Proceeding thus, by civil action, is a
method “functionally equivalent” to obtaining a
warrant; however, it has greater risks for EPA
than warrant proceedings because, in theory at
least, it opens the door to broad and distracting
discovery, counterclaims, crossclaims, and
third-party claims, unless the court, by order,
precludes those matters from the proceeding.
STATUTORY PROVISIONS
A. “Entry Rights” Are Essential for
Issuance of Administrative Warrants
One way that administrative warrants differ
from criminal warrants is that an agency must
have a substantive right to enter onto premises
before a warrant can be issued. 20/ When that
point was ruled upon in Bunker Hill Co. v.
EPA, 21/ the court noted that EPA’s statutorily
granted right of entry was a sufficient basis for
EPA using, and the magistrate issuing, an
administrative warrant. There is no necessity
for the agency to have “implementing regula-
tions” in order to obtain warrants. It need only
have and show statutory rights of entry onto
premises.
B. No Warrants for “Access’ Rights
Unconnected with Premises
A statute may grant a right to “see” an item or
“have access” to an item, or even “to inspect” an
item, but such provisions may not necessarily
and inevitably mean that the “right” is exercis-
able a: or on premises occupied by the person in
possession. It might be that the items to be
inspected could be taken to the demanding
agency’s own offices for examination. The right
to inspect documents or records is very suscepti-
ble to that drafting flaw. The case of Midwest
Growers Co-op. v Kirkemo 22/ involved
language in the Interstate Commerce Commis-
sion (ICC) statute that the court said created
only a personal right to see certain records, not
an “entry right.”
Consequently, a right to “have access” or to
“inspect” that is ambulatory (i.e.. unanchored to
specified premises and inherently exercisable at
any location) may not carry with it an express
or implied right to physically enter premises.
23/
C No Warrant Where Statute Specifies
Other Methods
In the Mid-West Growers Co-op. case, another
issue was raised. The court ruled that the ICC
statute specified that an injunction is the
mechanism by which the right to examine
records would be enforced. Therefore, where a
statute prescribes an exclusive method for
exercising or enforcing an agency’s statutory
right, that method is the sole means for enforce-
ment, and an application for a warrant will be
denied. Likewise, in In Re Kuip Foundry,
Inc.. 24/ the court ruled that OSHA, in one sta-
tutory subsection, had been given subpoena
power as its method for obtaining documents;
hence that method was ruled to be exclusive
and precluded issuance of a warrant to obtain
documents.
There arc no such difficulties for practitioners
under the Comprehensive Environmental
Response, Compensation, and Liability Act
(CERCLA), inasmuch as amendments enacted
in 1986 expressly provide rights of entry. 25/
Therefore, an administrative warrant is an
appropriate and lawful vehicle to enforce entry
rights under that statute.
EPA ENTRY PRACTICES
A. Physical Activities. Excepted from
Warrant Requirements
There are four types of activities that sdemingly
are exempt from the general requirement to
obtain a warrant: (1) aerial overflights and
observations by passers-by, (2) L1DA . and
other sense enhancement devices, (3) open
fields inspections, and (4) certain on site obser-
vations.
EPA is free to take aerial photos of facilities and
to make usc of observations made by lawful
passers-by. 26/ In undertaking this type of
activity, the agency may use the most advanced
yet reliable sense enhancement devices for the
detection and measurement of the release of
pollutants to the environment. One example is
the use of LIDAR, a form of radar, that can
detcct and measure distant air emissions of
-5-
-------
National Environmental Enforcement Journal
May 1989
particulate matter. In examining LIDAR cases,
courts may wcll apply thc same “no search”
rationale that was rcndercd for “beepers” in
United States v. Knoits. 27/
Federal administrative agencies can also take
advantage of some of the “no-warrant-needed”
exceptions created in criminal law cases. The
“open fields exception” doctrine enumerated in
Oliver v. United States 28/ indicates the Court’s
willingness to adhere to the common law con-
cept of that exception in a criminal case. There
is no reason why that ruling should not equally
apply in an administrative law case to obviate an
administrative warrant 29/
The fourth of these enumerated exceptions is
one noted earlier and exemplified by the deci-
sion in Balelo v. Baldridge. 30/ Where certain
unique activities are taking place, an official
presence is necessary for that activity to be law-
fuL In Balelo, the court ruled that no warrant
was required in order to place government
observers aboard boats that operate with per-
its from the Department of Commerce. The
court ruled that such “presence” was not a
search or seizure. It was, instead, a permit “con-
dition.”
B. Warrantless Non-Consensual Entries —
a Myth?
EPA reserves its right, even In warrant applica-
tions, to contend that its proposed activities
come within some caselaw exception to the
Barlow’s requirement for a warrant, but as yet,
with the exception of Public Service Co. v.
EPA. 31/ no decision has been concerning an
EPA warrantiess, non-conscnsual entry.
Some entry rights arc said to be exercisable
without a warrant However, unless self-help
(the privileged use of reasonable force to
accomplish the entry and to preclude interfer-
ence) is available, such a warrantless entry right
is pragmatically illusory. It can only be
enforced, if entry Is refused, by the agency’s fil-
ing a plenary suit for a mandatory injunction
for entry—a warrant’s functional equivalent If a
law enforcement officer were to accompany
EPA personnel asserting warrantless entry
rights, self-help for entry would actually be
available. But it is unlikely that officers would
lend such assistancc to EPA on thc mcrc asser-
tion that the agency holds warrantlcss entry
rights.
A triple prong test for determining (usually
after the fact) if a statutory right to enter prem-
ises without a warrant is constitutional was set
forth by the Supreme Court in New York v.
Burger. 32/ In that case, a state statute
empowered police to enter and inspect motor
vehicle junk yards, regularly and without
notice, and to penalize a refusal to allow such
entry. No requirement for a warrant was speci-
fied. The state’s highest court voided the statute,
applying its view of the reasoning in Barlow’s,
but the Supreme Court reversed. It ruled that
the warrantless entry by two policemen under -‘
the statute did not offend the Fourth Amend-
ment because vehicle junk yards were per-
vasively regulated businesses. Thus, warrants for
entry were not required.
C Ex Parte Applications Must Not Be
Adversary Proceedings
It is clear that EPA may obtain warrants on ex
pane application and that such applications
may not be turned into adversarial contests. 33/
Ex parte proceedings to obtain warrants do not
deny either procedural or substantive constitu-
tional rights. If they did, then criminal warrant
proceedings under Rule 41 of the Federal Rules
of Criminal Procedure would also be uniformly
unconstitutionaL
Some lawyers attack ex parte warrant applica-
tions by arguing that their clients should be
entitled to contest, from the very first, the
issuance of such warrants. Were that so, warrant
applications inevitably would be turned into
adversarial proceedings. However, the Supreme
Court indicated its sipgular aversion to such a
result by its decision in Zurcher v. Stanford
Daily News. 34/ The Court in that decision
approved the use of warrants to obtain docu-
ments and to search premises even though the
possessor was not a suspect. It demonstrated
clearly its preference for a warrant issued ex
pane over the issuance of a subpoena that
might well entail adversarial proceedings.
It has been clearly ruled that it is not within a
magistrate’s discretion to allow a non-party to
intervene and be heard in agency ex perle war-
rant application proceedings. In the case of In
Re S.D. Warren, 35/ the court stated that “an
adversary proceeding... could only result in an
unreasonable and unnecessary burden.” 36/
Some lawyers contend that cxccutidn of EPA-
obtained warrants (mainly those issued under
-6-
-------
National Environmental Enforcement Journal
May 1989
section 104 of CERCLA, 42 USC. 9604) will
involve constitutional “takings”; 37/ hence, an
opportunity to be heard should be required
before such warrants issue. Even conceding the
premise, the conclusion remains false. The fact
is that the post—entry remedy contained in the
Tucker Act 38/ adequately protects any substan-
tive due process interest, even if one were to
assume that a constitutional “taking” would
occur under the warrant.
D. Advance Notice to Possessor Not
Required to Obtain a Warrant
EPA is not required to give advance notice of an
inspection to a plant or its personnel. The right
to proceed ex parse obliterates all such notice
requirements. Similarly, notice to a possessor of
EPA’s inspection under a warrant or of EPA’s
ex parse application for a warrant is never
required. Advance notification would only
encourage a possessor to attempt to intervene in
the ex parse proceeding, making it an adver-
sarial and contested proceeding, contrary to its
basic structure. 39/
E. Request for Possessor’s Consent also
Unnecessary
As a matter of courtesy, but not because of
regulatory, statutory, or caselaw requirements,
EPA personnel usually ask the possessor’s
express consent to entry, search, inspection,
and/or sampling. However, any form of consent
other than “yes” creates potential problems and
therefore, EPA will not accept it. The statutory
right overrides the need for consent from any-
one. Even if EPA, as a matter of courtesy, usu-
ally tries to “work something out” with the pos-
sessor, that never means that it is legally
required to do so.
F. Efforts to Negotiate Terms with Posses-
sor Unnecessary
A magistrate or court may inquire whether an
agreement might be reached between the
agency and the possessor of premises to obviate
a warrant EPA does attempt to gain consent
when it is quick and certain, but the law does not
require an attempt to negotiate conscnsu.al
entry. Such requirement would be tantamount
to EPA’s foregoing its statutory rights. Obvi-
ously, EPA will pursue whatever path leads to
the easiest means of entry. In some cases nego-
tiation is that path; in others, it isn’t.
G. Refusal of Consent by Possessor also
Unnecessary
Environmental statutes confer a substantive
legal right, power, and authority upon desig-
nated EPA representatives to enter premises
and to conduct post-entry activities there. The
law does not require EPA to show that entry has
been refused in order to obtain a warrant The
existence of the substantive right to enter yields,
by itself, a concomitant right to have judicial
confirmation of that right by issuance of a war-
rant Sometimes an issuing magistrate mistak-
enly may regard “refusal of consent” as some
kind of indicator whether “reasonable cause”
exists to issue the warrant (a non-sequitur.
admittedly, but not an atypical one).
H. Need for Surprise Unnecessary
Some have argued that, absenta demonstrated
need for surprise, the agency must give the pos-
sessor notice of the warrant proceedings and of
the prospective entry, or else be denied the war-
rant. The rationale for this view Is rarely articu-
lated. The contention Is spurious. It interposes
the necessity of a showing of “need” by EPA
before using ex parse proceedings. This
erroneous contention has been fairly well put to
rest by the decision in Bunker Hill Co. v. EPA.
40/
L Time Limits for Warrants — Mainly
“Prudentlal ’ Rules
A ten-day duration is imposed on criminal war-
rants under Rule 41(cXI), primarily to insure
that probable cause continues to be present to
support the warrant and to prevent staleness. No
such explicit duration limit is imposed upon
administrative warrants for the very pragmatic
reason that more sophisticated types of activi-
ties, taking longer, must usually occur after an
EPA entry. Magistrates typically insist .upon
imposing time limits that arc calculated by
estimating the time necessary to accomplish the
proposed activities. Typically also, they will set
an expiration date for the warrant to insure that
a renewed or new warrant, based upon updated
information, is obtained for further activity
even if it is precisely the same activity as
allowed under the initial warrant (e.g.. sampling
test wells drilled months earlier in an initial
entry). Various termination dates arc inserted
in warrants depending on the activities
involved. Periodic renewal of warrants can be
required. In fact, that procedure strikes a much
-7-
-------
National Environmental Enforcement Journal
May 1989
better balance then would injunctive proceed-
ings in a plenary civil action (Or proceedings
under the All Writs Act 41/) because of thc
vcry short and expedited nature of administra-
tive warrant proceedings.
J. Re-Entries under Warrants
EPA administrative warrants typically provide
for re-entries prior to the expiration date of the
warrant because laboratory analyses, such as
testing for hazardous substances and their con-
centrations, often interrupt the post-entry
activities. No return is required on the adminis-
trative warrant until after the final entry.
K. Displaying Credentials
Some EPA-administered statutes mention the
presentation of credentials; others do not. How-
ever, as a matter of practice, EPA employees
usually do present their EPA credentials at the
time of entry. The credentials only authenticate
the EPA employee’s representation that he or
she is a federal official authorized to enforce
the environmental laws. An administrative war-
rant however, also “credentializes”-.-so much so
that “credential ization” can be considered one
prime function of an administrative warrant.
L Statement of Purpose upon Initial
Entry
Some EPA-administered statutes specify that
written notice must be presented to the posses-
sor of the premises entered, but some do not.
Usually an EPA official will verbally explain, in
general terms, the post-entry activities he or she
expects to be performing. However, the inspec-
tor will avoid giving an occupant the opportun-
ity to learn the precise focus (as opposed to the
general aspects) of the inspection, particularly if
that information would enable the possessor to
misdirect the Inspection or to contrive an
appearance of compliance.
M. Motions for Return of Items and
Supression of Evidence
In B&B Chemical Co.. Inc. v. United States,
42/ the court ruled that a complaint, filed after
an EPA administrative warrant was executed,
should bc dismissed as moot because the pros-
pect that EPA would later attempt to use the
gathered information in a judicial or adminis-
trativc action against the possessor was too
spcculativc and rcmotc to make the current
action a livc Articlc lii controversy. The lower
court ruled that it lacked jurisdiction to quash a
warrant that had already been issued and was in
the process of being executed—a demonstrably
correct decision.
N. Bivens Claims Based on Administrative
Entry Orders
Neither a Bivens issue 43/ nor evidence supres-
sion issues have been raised to date regarding
EPA entries, even in Industrial Park Develop-
ment Co. v. EPA. 44/ arising in Pennsylvania.
The matter is otherwise regarding inspections
and evidence supression in OSHA cases. 45/
The signatory of an EPA-issued order that con-
tains provisions directing the premises’ posses-
sor to allow EPA personnel to enter is invari-
ably confronted by the Biveiu issue. In such a
case, the signatory may be acting in excess of
lawful authority, and, if harm is caused, per-
sonal liability may ensue. An evidence suppres-
sion argument is equally likely because an
order’s aura of official coercion arguably
vitiates any voluntary waiver or consent. 46/
Assuming that some warrantless exception is
wholly unavailable, without the waiver or con-
sent argument an order’s entry provisions will
prove to be unlawfuL In such a case, there may
be a violation of Fourth Amendment rights if
and when physical entry is made under the
administrative order. For these reasons, the
1986 amendments to CERCLA, which purport
to provide for entry by means of an administra-
tive order (42 U.S.C 9604(cXS)), may prove to
be unconstitutional.
0. Good Faith Belief that Warrant Is
Valid
The Supreme Court decision in United States v.
Leon 47/ that no evidence obtained in violation
of the Fourth Amendment will be excluded
where there has been good-faith rçllance on a
facially valid warrant will certainly be relied on
by EPA and other federal agencies to justify
their use of information obtained pursuant to
an administrative warrant. The very existence
of this exception to the prophylactic exclusion-
ary rule will almost necessarily moot out most
complaints filed for the suprcssion/exclusion of
evidence obtained under an administrative war-
rant.
-8-
-------
National Environmental Enforcement Journal
May 1989
P. Dispossessing Post-Entry Acts -- “Tak-
ings” under Warrants
Under CERCLA provisions., EPA’s exercise of
its removal and remedial rights, because of the
duration and/or displacing aspects of activities,
in some instances may bc ruled a compensable
“taking.” But that does not justify delay in issu-
ing a warrant. It is, at best, a basis for after-the-
fact filing of a complaint in the US. Court of
Claims for just compensation. Claims Court
proceedings for such compensation need not
precede the operative event alleged to be a com-
pensable “taking.” 48/
CONDITIONS RESTRICTING EPA ACTIVI-
TIES ATFACHED TO CONSENT
A. Signing/Accepting “Passes,” “Logs,”
“Waivers” “Indemnity Agreements,”
“Releases.” or Similar Items
Sometimes attempts arc made by the possessors
of premises to restrict EPA’s post-entry activi-
“ y making the signing of some sort of
document a condition to the consent of the pos-
sessor to EPA’s entry. 49/ EPA resists such
efforts.
EPA inspectors may not sign or agree to any
such matters. Signing something can not prop-
erly be made a condition to EPA’s exercise of
its rights to enter, search, inspect, or investigate.
Insisting upon the signing of any such contrac-
tual item operates as refusal of consent and as
insistence on the presentation of a warrant.
Typically, upon refusal of consent, EPA will
seek an administrative warrant. The warrant
application and supporting affidavits are avail-
able to the public in the court file after the war-
rant has been executed and a rethrn (a written
report and inventory) made on the warrant.
B. Confidentiality or Secrecy Agreements
EPA representatives will not sign any agree-
ment to hold as confidential what is observed or
discovered during an inspection or investiga-
tion. EPA will facilitate the making of a claim
under 40 C.F.R. Part 2, Subpart B, for a
claimant who asserts “business confidentiality”
for submitted records. However, insistence that
EPA representatives sign such an agreement
effectively operates as a refusal of consent, and
EPA’s response will bc to obtain a warrant for
entry and post-entry activitics. 50/
C Restrictions on Photographs or Other
Mechanical Recorda lions
Attempts to restrict or inhibit post-entry activi-
ties by EPA arc sometimes directed at photo-
graphs, although the same principles apply to
any mechanical method of recording impres-
sions of perceived conditions. Mechanical
recording devices such as cameras are the only
reasonable method for capturing a communica-
ble impression of then-existing conditions,
many of which may be wholly transitory. The
right to use any mechanical recording device
inheres in EPA’s right to inspect. EPA claims,
for example, the right to use its own cameras,
develop its own film, and to make its own
prints, regardless of the presence or absence of
consent by the possessor to such activity. 51/
EPA will grant a request to review matters pho-
tographed during post-entry activity In order to
afford the possessor of the premises an oppor-
tunity to assert claims of confidentiality under
40 CF.R. Part 2, Subpart B.
D. Revocation of Consent
A possessor of premises may give initial consent
to an EPA entry but try to revoke that consent
after EPA has entered and begun its activities.
While the issue of the possessor’s power to
revoke consent is open to debate, EPA should
have the right to complete Its inspection once it
has begun without Interference based on
alleged revocation of consent. 52/
E Safety Gear and Procedures
Generally, EPA representatives use the same
safety equipment that operators of the facility
usc but EPA has the right to decide not to
undergo the safety training the operator may
require of its workers. 53/ Insistence c i such
training is, in effect, refusal of consent to EPA’s
entry, and EPA’s response will then be to obtain
an administrative warrant to achieve its entry.
F. Obtaining a Copy of the Inspec:or’s
Notes
Some possessors try to inveigle an agreement
from EPA that they may see, read, or copy
notes made by an EPA inspector. EPA does not
allow such access although the possessor may
submit a request under the Freedom of Infor-
mation Act to which EPA has ten days to
respond. Whilc inspectors may point out.various
items that thc possessor should re-check for
compliancc purposes, EPA’s inspecting
-9-
-------
National Environmental Entorcement Journal
May 1989
representatives arc never authorized to tell a
possessor that there arc no violations. The intri-
cacies of EPA-admirnstcrcd statutes and regula-
(ions frequently do not facilitate reliable on-
the-spot opinions.
AUTHORIZED POST-ENTRY ACTIVITY
A. Scope of Authorized Activities after
Entering
A rule of thumb is that the language of the sta-
tute, fairly and straight-forwardly construed,
determines the nature and extent of EPA’s
post-entry activities, even if the statute may
authorize activity amounting to a “taking.”
Administrative warrants presuppose that a right
to enter is statutorily conferred and that a con-
comitant right to search (i.e., to verify by physi-
cally checking as opposed to naively taking the
word of the possessor) likewise exists.
Occasionally, EPA statutes are tested as to the
scope of activities which they authorize. One
case, Mobil Oil Co. v. EPA, 54/ resulted in a
ruling that the sampling of in-house, as opposed
to end-of-pipe, process effluent was within the
purview of EPA’s inspection and sampling
rights conferred by scction 308 of the Clean
Water Act, 33 U.S.C. 1318. In another case, in
Re Bunker Hill Co.. 55/ the court explicitly
ruled that EPA’s right to inspect included the
right to take photographs (that can be subjected
to confidentiality claims under 40 CF.R. Part 2,
Subpart B) of the facility and equipment. EPA’s
right to obtain documents by means of a war-
rant was challenged in Bunker Limited
Partnership. 56/ but right now that seems
beyond dispute under 42 U.S.C 9604(eX6). 57/
Language varies from statute to statute as to
what activities EPA may perform after entry.
Howcvcr, the typical word “inspect,” “inspect-
ing,” or “inspection” that appears in each of the
statutes includes thc right to record by sam-
pling, photographing, tape recording, graphing
by electronic devices with a taped readout, or
other methods, depending upon the matter to
be inspected.
Somewhat similar to the In Re Ku/p Foundry
decision 58/ arc two opinions that contort the
subpoena analogy found in See v. Seattle 59/
into a purported requirement that, for noncon-
sensual entry, an agency must obtain a sub-
poena (in addition to a warrant), pinpointing
and describing the documents or records to be
pcruscd. The two decisions arc Bunker Limüea
Partnership v. United States 60/ and United
States v. Stanack Sales Co. 61/In each of these
cases, the court misunderstood the language
concerning thc subpoena analogy that was used
in the See decision.
Apart from all cisc, the practitioner must
remember that subpoenas are commands to a
possessor, who then must himself search and
segregate the subpeonaed material, while war-
rants do not command or require a possessor to
do anything.
B. Splitting Samples
Three of the EPA-administered statutes specify
that, if requested. split samples must be pro-
vided by EPA. These are the Resource Conser-
vation and Recovery Act (RCRA) section
3007(a), 42 USC 6927(a); CERCLA section
104 (e), 42 US.C. 9604 (e); and the Federal Insec-
ticide, Fungicide, and Rodenticide Act
(FIFRA) section 9(a), 7 US.C. 1 36g(a). Those
who support such provisions argue that a facil-
ity should be able to challenge the accuracy of
any government testing and analysis at govern-
ment expense.
C. Copying Versus Seizing Documentary
Items
The practice in executing warrants issued under
Rule 41 of the Federal Rules of Criminal Pro-
cedure is to seize and carry away documents. In
some instances, that practice can hamstring an
ongoing enterprise. Apparently, concern in
that regard has prompted enactment of provi-
sions In various statutes that EPA may peruse all
documents subject to the warrant, but must then
copy on-site those records it wishcs4o seize and
remove from the premises.
D. Nonconsensual Searching and Screen-
ing
Occasionally, an argument is made; especially
in regard to documents, that the statutory pro-
vision at issue does not explicitly grant the right
to search even if one holds a warrant. However,
statutes rarely explicitly authorize a search in
exact words. May the government verify, by its
own search, that it has found (and possesses) all
documents or other tangible items that arc
relevant? Must the government naively grant a
possessor a prc-cmptiVc opportunity to sanitize
thc product of the search, or take the word of
the possessor regarding what items arc relevant
-10-
-------
National Environmental Enforcement Journal
May 1989
and what items need not bc surrendered
because they arc confidential? Thc Supreme
Court has stated that there is no “special sanc-
tity in papers [ vis-a-vis other tangibles] -. . to
render them immune from search and seizure”
when they fall within traditional principles
applicable to warrants. 62/
REDRESS/SANCTIONS FOR HAMPERING
EPA ENTRIES/INSPECTIONS
A. Refusals of Consent for Entry
EPA’s typical response to refusals of consent to
entries or to the conditioning of consent has
been for the agency to seek a warrant or a func-
tional equivalent thereto.
Some statutory provisions, such as those in
FIFRA and the new section 104(eXS) of
CERCLA, purport to penalize by civil penalty a
refusal to permit EPA entry when EPA’s effort
to enter is lawfully made. Such provisions
presently force possessors to guess if EPA may
enter without a warrant. 63/ These penalty
terms may be invalid in the context of a war-
rantless entry, but valid when EPA shows up
with a warrant
B. Warrant Situations Where Refusals
Occur
All warrants are executed—they need not be
served nor enforced as such. Service is not
essential to the legal operation of an adminis-
trative warrant because it is not encumbered by
Rule 41 but only by the “copy-delivery” terms
(if any) contained in the warrant itself. Service
of an administrative warrant merely gives
notice. Execution of the warrant is by physical
force, if necessary. For that reason, EPA usu-
ally has one or more Deputy United States
Marshals accompany EPA personnel on an
entry under a warrant Where such is not the
case, the issue becomes whether in the case of
refusal EPA will usc self-help or, instead, will
resort to contempt proceedings.
In In Re Bunker Hill Co., 64/ the operator of
the facility obstructed EPA’s entry and activities
in the face of a judicially issued warrant A
Motion for Contempt was then filed. Had a
Deputy United States Marshal been prcscnt, he
could have made an arrest sincc interference
with a civil administrative warrant results in
criminal liability under 18 USC lit, 150l,and
I 509. Such a warrant is., after all, a court order.
C. Use of Reasonable Force
The use of reasonable force to execute a war-
rant issued under Rule 4! is familiar to every-
one. There seems to be no sound analytical rea-
son why the same principle does not apply to
administrative warrants.
FALLACY OF ENTRY/CONSENT/ACCESS
DIRECTED BY AGENCY ORDER
A. Unilateral Orders
A unilateral administrative order (as yet not
judicially enforced) is not, by itself, the func-
tional equivalent of a judicially issued warrant
required under the Fourth Amendment As
mentioned above, the language of the new
CERCLA section 104(eX5) may imply other-
wise, and If so, that section may not stand up to
constitutional challenge. 65/ -
B. Entries Under Provisions in Agreed
Orders
Few quarrel with the legal efficacy of a
respondent’s agreeing to an EPA order whose
provisions Include an irrevocable consent to
EPA entries. Such a respondent thereby con-
sents to such entries and to related consequent
activity. In such a case, the issue should be
analyzed in terms of the existence and extent
of the consent rather than of EPA’s powers.
Some point to Nicole: v. Eichler 66/ as contrad-
icting this analysis. In Nicole:, a second
CERCLA section 106 order superseded a prior
order and basically contained provisions that
only commanded the respondent possessor to
allow EPA to come onto the premises. The
plaintiff sued to enjoin the enforcement of the
second order and EPA counterclaj ned for
enforcement Properly, the distri t court
reviewed EPA’s order, applying the
arbitrary/capricious standard of - review
approved in a :ize to Preserve Overron Park
v. Volpe 67/ for nonadjudicativc. agency
decision-making. It ruled that the order itself,
plus the various documents underlying it that
the agency had considered before issuing the
order (the agency’s informal administrative
record), supported the agency’s commands set
out in the section 106 order. The court con-
cluded that the order met the applicable criteria
of the Administrative Procedure Act, 5 US.C.
706(2XA),—the action of thc agency had not
been arbitrary, capricious, an abuse of discre-
tion, or not otherwise in accordance with law;
—11—
-------
National Environmental Entorcement Journal
May 1989
hence thc court specilically enforccd the
order’s entry provisions.. The Court’s confirm-
ing order (but not EPA’s order) amounted to
the functional equivalent of an administrative
warrant.
BYSTANDER OR THIRD-PARTY PREM-
iSES
Just as third-party premises constitutionally
may be entered under a Rule 41 warrant, as was
the case in Zurcher v. Sian ford Daily News.
(to collect evidence of a crime), 681 the “entr-
able premises” under some environmental sta-
tutes include those premises adjacent or related -
to the precise focus of EPA’s entry and post-
entry activities. That occurs mainly under
CERCLA where EPA someumes needs entry to
premtscs other than the location of the initial
release or threat.. Such other premises may be
an area that must be inspected to determine the
outer limits of the area of contamination or it
may be an area needed for staging and
maneuvering. Whether or not he is viewed as a
suspected potentially responsible person (PRP)
or possible respondent by EPA, for purposes of
analysis here, an adjacent premises possessor is
called a “bystander premises possessor,” or
BPP.
The BPP problem has been addressed to some
degree in thc 1986 amendments to CERCLA.
New section 104(eX3XD) identifies as entrable
any premises where entry is needed to effectu-
ate part or all of a response action. That right-
of-entry provision should solve most BPP prob-
lems under that statute.
The involvement of a non-consenting BPP who
cannot properly be made a respondent in an
EPA- issued order inevitably raises the potential
of eminent domain or taking claims. If it be
argued that the terms of the statute authorize
EPA to command a BPP to allow some third
party (who may be more a miscreant than an
agent or “authorized representative” of EPA) to
cntcr upon thc BPP prcmiscs, then such a sta—
tutc and such entry attempts arc likely to be
attacked by BPPs under the Fourth and Fifth
Amendments. Using a BPP’s land seems dif-
ferent from compelling a BPP’s cooperation as
a citizen in providing evidence and the like.
Entering land is, however, essential to abating
threats from releases or from contaminated
facititics.69/tn any case, the entry of BPP land
can amount to public affirmative use of BPP
property and a true “taking.”
Since warrants under Rule 41 of the Federal
Rules of Criminal Procedure involving third
party premises arc valid, one can argue that
administrative warrants must also be valid for
such purposes so long as the statute can be
shown to create a substantive right to enter the
BPP’s premises and to perform post-entry
activities there. Absent such a right, only the
All Writs Act or the new section 104(e) provi-
sion of CERCLA appears to be readily usable.
ALL WRITS ORDERS ISSUED TO AID
ENTRIES OR RESPONSE ACTIONS
A court order, or a “writ,” issued pursuant to 28
U.S.C 1651, has been used to aid an EPA entry
or post-entry activity. Orders issued pursuant to
that statute may combine and employ any and
all judicial prerogatives within the ambit of
Article 111. Thus, a section 1651 “writ” can both
authorize government officials (or even third
persons) to do acts and simultaneously com-
mand whoever may suffer an incursion to allow
and cooperate actively with such authorized
officials. 70/
Once a court has exercised jurisdiction by issu-
ing an administrative warrant, the court may, if
it later becomes necessary, use the All Writs Act
in aid of its jurisdiction. Therefore, If extended
activities on certain premises will occur or if the
cooperation of the possessor of the premises
will be required (even if only to keep people
away from the survey stakes, sample grids, or
equipment of EPA’s contractor), then an order
or writ may be issued to “aid” the court’s jurisd-
iction. This is particularly true where warrant
has been executed and returned. In such a case
a writ can “piggy-back” onto the previous war-
rant jurisdiction and be in “aid” of it. 71/
EFFECT OF FEDERAL RULES OF CIVIL
PROCEDURE ON EPA ENTRIES AND WAR-
RANTS
A. Administrative Warrants
While Rule 41 of the Federal Rules of Criminal
Procedure governs aspects of warrants obtained
upon probable cause to enter premises for evi-
dence of or fruits of a crime, the Fcdcral Rules
of Civil Procedure do not expressly address
administrative warrants at all. The Courts
instead, on a case-by-case basis, have
-12-
-------
National Environmental Enforcement Journal
May 1989
articulated procedures that may bc used for
obtaining administrative warrants. For the most
part, these procedures parallel those under Rule
41. For example, as stated above, it is clear that
it is entirely proper for EPA to apply ex parre
for an administrative warrant.
It is equally clear that an injunctive order
enforcing a statutory right of entry may be
obtained only by filing a summons and com-
plaint. The 1986 amendments to CERCLA con-
tain provisions that restrict judicial review,
thereby curtailing the risk that, on a summons
and complaint for entry, collateral issues will be
raised.
B. Writs Under the All Writs Act
Traditionally, one applies for a writ under 28
US.C. 1651 by filing a Petition ex pane, and
having a Show Cause Order issue thereon. One
can also seek a writ by filing a summons and
complaint. All Writ proceedings are controlled
by the Federal Rules of Civil Procedure, but
their specialized nature tends to induce the
courts to keep such proceedings abbreviated
and narrow.
CONCLUSION
Judicially issued administrative warrants, for
the most part, have proven to be a workable
method for implementing the necessarily far-
reaching post-entry statutory rights that
environmental inspection and detection of
non-compliance involve. To the extent that such
mechanisms arc recognized as being merely a
permutation of warrants used in criminal inves-
tigations, the problems they pose should be
manageable, if not familiar. They, and the entry
rights which they symbolize, will undoubtedly
remain sorely needed in the fight to discover
and protect the community from the throw-
away practices of our callous and indifferent
selves.
• Mr. Hamill has been the Senior Associate
Regional Counsel for EPA Region 10 for eight
years. For seven years before that he was Chief
of the Legal Support Branch, Enforcement
Division, in Region 10. These comments were
written by the author in his personal capacity.
Pursuant to 40 C.F.R. 3.507(e), no official sup-
port or endorsement by EPA or any other
federal agency is intcndcd and nonc should be
inferred. This paper, the topics indicated as
omitted for publication, and original footnotes
in particular have been severely abridged by
the author from a paper first presented for Con-
tinuing Legal Education purposes in October
1984 in Seattle, Washington, and have been
updated through January 1989. The complete
unabridged paper may be obtained by writing
to this journal.
FOOTNOTES
If An example of warrantless entry authorized
by statute appears in Donovan v. Dewey, 452
U.S. 594(1981).
2/ Black’s Law Dictionary 1756 (4th cd. 1968).
3/ E.g.. the statutory “rights” may be construed
so as to preclude resort to a warrant as in
Midwest Growers Co-op. v. Kirkemo, 533 F.2d
455 (9th Or. 1976), or may be narrowly inter-
preted anomalously as happened to the Occupa-
tional Safety and Health Administration in In
Re Kuip Foundry, Inc., 691 F.2d 1125 (3d Cir.
1982).
4/ See Donovan v. Hackney, Inc., 769 F.2d 650
(10th Cir. 1985), and Donovan v. Mosher Steel
Co.,791 F.2d 1535 (11th Cir. 1986).
5/ See Bunker Limited Partnership v. United
States, No. 85 -2133 (D. Idaho 1985), dismissed
as moot, 820 F.2d 308(9th Or. 1987).
6/ See Blackic’s House of Beef, Inc. v. Castillo,
659 F2d 1211 (D.C. Or. 1981); Bunker Hill Co.
v. EPA, 658 F.2d 1280 (9th Or. 1981); accord
Midwest Growers, supra note 3.
7/ Some courts point to 28 USC 636. See
Marshall v. Chroma loy Am. Corp., 589 F.2d
1335 (7th Or. 1979), and In Re Quality Pro-
ducts, Inc., 592 F.2d 611(1st Cir. 1979). That
view hardly covers all that our federal courts
have done in the matter of warrants. A caveat
must also be noted: Marshall v. Barlow’s, Inc.,
436 U.S. 307 (1978), authored by Justice White,
is very much the descendent of a number of
cases such as Sec v. City of Seattle, 387 US. 541
(1967), and, decided the same day, Camera v.
Municipal Court, 387 US. 523 (1967). Those
major opinions were also written by Justice
White. While the rationale of such earlier cases
should not be overlooked, they should be tem-
pered by the more precise focus in Justice
Whitc’s opinion in BarloWs.
8/436 US. 307 (1987). Queries: Under cxisting
law do state inspectors have a legal right to
obtain federal administrative warrants for
-13-
-------
National Environmental Enforcement Journal
May 1989
entry and post—entry activity from a federal
court or magistrate, at least under statutes such
as 42 US C. 6927(a) (RCRA section 3007(a)), 33
USC. l318(c) (CWA section 308(c)), and 42
US-C. 74 14(c) (CAA section 114(c)), which argu-
ably purport to confer a federal right of entry
directly upon described state officials? Can
federal officials obtain administrative warrants
from state courts?
Opinion: As to both questions, probably “yes”
although nobody as of yet seems to have tried..
Rationale: Fed. R. Crim. P. Rule 41(a), along
with 18 U.S.C. 3101-3113, arguably purports to
empower judges of state courts of record to
issue warrants for Rule 41 purposes (i.e., crimi-
nal law enforcement) when sought by federal
officials. By a parity of reasoning (I.e.. the
Barlow’s decision was based on principles
under the federal Constitution and thus is bind-
ing on all states), those same state judges are
“empowered” to issue administrative warrants
to federal officials. (The foregoing reasoning is
an alternate to the view that there is really no
“federal power” conferred as such on state
judges by Rule 41 and instead, neutral scrutiny
by a state judge of a proposed entry by federal
officials merely satisfies the Fourth Amend-
ment condition precedent for issuance of a
warrant)
At least one Justice seemingly would have little
problem with state judges issuing federally
valid administrative warrants. In Griffin v.
Wisconsin, 483 U.S. 868 n. 5 (1987), Justice
Scalia noted that the warrant required in
Barlow’s arguably would not have to be “judi-
cially issued.” That intimates a nonjudicial offi-
cial could issue a federal administrative warrant
A fortiori, a judge of a state court of record
would implicitly qualify under that view equally
as well as he/she qualifies explicitly under Rule
41.
Thc reverse situation of an administrative war-
rant federally issued (by a federal magistrate or
district judge) to a state official has not yet
been discussed or raised. The opinion expressed
above is predicated simply upon the existence
of a federal statutory right of entry held by
some state officials under the cited statutes, and
the fact that federal courts have jurisdiction
concerning such rights under Article Ill and 28
US C. 1331 (federal question jurisdiction). A
federal warrant to confirm and validate a
federal right (regardless of who holds it) seems
clearly within a federal court’s jurisdiction.
9/ See City of Seattle, supra note 7, and
Midwest Growers Co-op i.’. Kirkemo, 533 F.2d
at 455 (9th Cir. 1976).
10/ See CAB v. United Airlines, 542 F.2d 394
(7th Or. 1976), where personnel from the Civil
Aeronautics Board without a warrant, but with
a letter request (arguably equivalent to a sub-
poena) in hand, showed up at United’s office
and requested entry, based on a statutory right,
in order effectively to rummage through
United’s files. United declined. The CAB filed
plenary suit for injunction. Implicitly, the
resulting decision was a precursor of Barlow’s,
supra note 7. The court ruled that the letter
request issued by the agency was no adequate
substitute for a judicially issued warrant, even if
the letter were functionally equivalent to an
administrative “subpoena.”
11/ During the last two weeks of May 1978, in
addition to Barlow’s, the Supreme Court also
handed down Zurcher v. Stanford Daily News,
436 U.S. 547 (1978), authored by Justice White
as well as Michigan v. Tyler, 436 U.S. 499
(1978). A salient point is that these three cases,
all involving an in-depth consideration of
administrative entry problems, were decided by
the same nine justices in the same Supreme
Court term.
12/ The “plan” or “scheme” was not itself
required to be “neutral” or random, but the
basis for the plan was required to be “neutral,”
thus preventing site sdections by persons in the
field.
13/ The use ‘of the term “probal,lc cause”
should be scrupulously avoided in civil matters.
It inevitably results in garbled thinking and
confused analysis. “Reasonable causc”,or some
similar phrase should be used.
14/ Some purists may argue that the Court did
not really say that. In practical effect, the result
is the same. See New York v. Burger, 482 Us.
691 (1987).
15/ That message was reiterated in LaDuke v.
Nelson, 762 F.2d 1318 (9th Cir. 1985), where the
court ruled that immigration officials could not
engage in warrantless “area” scarche for illegal
aliens in farmer-provided housing shelters or
huts located on various farms in Washington
-14-
-------
National Environmental Enforcement Journal
May 1989
state, even when the farmer-possessor con-
sented thereto.
16/ E.g., whether “authorized representatives”
as used in a statute includes a commercial com-
pany and its employees with whom EPA has a
contract under which the private company per-
forms inspections for EPA. See ALCOA v.
United States, No. 80-1 178V (W.D. Wash.
1980), and United States v. Stauffcr Chemical
Co 464 US. 165(1984).
17/ Only one decision has indicated that EPA is
required to follow the Barlow’s ruling — Pub-
lic Service Co. v. EPA, 509 F. Supp. 720 (S.D.
md. 1981). EPA’s reasons for observing
Barlow’s principles in practice arc twofold:
first, it is less resource consumptive in the long
run to obtain a warrant than it is to litigate the
issue under nine different statutes second, an
official of the government., in many instances, is
entitled as of right to the issuance of a warrant
that judicially confirms his authority, in his
official capacity, to exercise a substantive right.
to enter and to conduct post-entry activities. A
valid warrant gives him absolute immunity from
liability for activity conducted in conformity
with the warrant.
18/724 F.2d 753 (9th Cir. 1982).
19/ No. 85-21 1-CIV-0-16 (M.D. Fla. June 10,
1985).
20/ Annotations on administrative warrants
appear in 19 A.L.R. Fed. 736 — DEA warrants
under 21 U.S.C. 880; 25 A.LR. Fed. 836— war-
rants regarding liquor dealers under 26 U.S.C.
7607; and 54 A.LR. Fed. 474 — OSHA war-
rants under 29 U.S.C 657(f).
21/658F.2d 1280(9thCir. 1981).
22/ 533 F.2d 455(9th Cir. 1976).
23/ A right of entry may be implicit. One exam-
ple is found in Blackie’s House of Beef, Inc. v.
Castillo, 659 F.2d 1211 (D.C. Cir. 1981). ‘
24/691 F.2d ll25(3dCjr. 1982).
25/42 US.C. 9604(c).
26/ Dow Chemical Co. v. EPA, 749 F.2d 307
(6th Cir. 1984), affd, 106 S.Ct. 1819 (1986).
See also Florida v. Riley, 57 US LW. 4126 (US.
Jan. 23, 1989); United States v. Allen, 633 F.2d
1282 (9th Cir. l980); and 56 A.L.R. Fed. 772.
27/460 US. 276(1983).
28/ 466 US. 270 (1984). See also United States v.
Dunn, 480 US. 294(1987).
29/ See. e.g.. Pennsylvania v. Lutz, 516 A.2d
339 (Pa. 1986), vacated and remanded. 55
US.L.W. 3643 (1987). In that case, the deferi-
dant was charged with several criminal viola-
tions, including obstructing an employee of the
Pennsylvania Department of Environmental
Resources (DER) and obstruction of justice.
The charges stemmed from an incident that
occurred when two DER employees entered the
defendant’s land without warrants to check
reports of the presence of solid waste. The
defendant refused to allow the search, confis-
cated a camera and sample bottles, and ordered
the employees off the property. (The following
day the search was conducted on consent.) The
Pennsylvania Supreme Court subsequently
affirmed a trial court order dismissing the
charges on the ground that the warrantless
search provisions of the Pennsylvania Solid
Waste Management Act were violative of the
Fourth Amendment. The case ultimately was
appealed to the US. Supreme Court but., after
certiorari was granted, it was remanded to the
Supreme Court of Pennsylvania for further
consideration in light of Dunn, supra note 28.
The Pennsylvania Supreme Court then in turn
remanded the matter to the Westmorcland
County Common Pleas Court for trial, where
on January 11, 1989, the defendant was con-
victed on two counts each of obstruction of jus-
tice and harrassment.
30/ 724 F.2d 753(9th Cir. 1982).
31/509F.Supp.720(S.D.Ind. 1981).
32/ 482 US. 691 (1987). The three-prong test
for warrantless entry on premises of ”c1osely
regulated” businesses explicated in Burger is
(1) that there exists a “substantial government
interest” justifying the statutory “close i eguIa-
tion” under which the entry is made; (2) that the
warrantless entry is necessary to further the
regulatory scheme; and (3) that the “certainly
and regularity” of the inspection program
described in the language of the statute pro-
vides “a constitutionally adequate substitute for
a warrant,” i.e.. the statute itself informs the
public at large that those who engage in such a
business will be so closely regulated and
inspected that they cannot expect . to have
privacy on premises where such business is con-
ducted.
-15-
-------
National Environmental Enforcement Journal
May 1989
33/ See Bunker Hill Co. v. United States., 658
F.2d 1280 (9th Cir. 1981); B&B Chemical Co. v.
United States, 806 F.2d 967 (1 Rh Cir. 1986);
and National Standard Co. v. Adamkus, No
87C55 16 (ED. Ill. 1988).
34/ 436 US 547(1978).
35/ In Re S.D. Warren, 481 F. Supp. 491 (D
Mc. 1979). See also Ingersoll-Rand Co. v.
Donovan, 540 F. Supp. 222 (M.D. Pa. 1982).
36/ The characteristics of an ex pane proceed-
ing are rarely explored. Primarily, it is a right
of an agency to proceed and obtain a warrant
without having that process impeded by inter-
vention of any other person. See, In Re S.D.
Warren. supra note 35. One who seeks to take
judicial action against the warrant properly
should commence his own separate civil action
by filing a complaint under Rule 3 of the
Federal Rules of Civil Proccdurc after execu-
tion of the warrant has begun. The suggestion
made in the B&B Chemical Co. decision, supra
r otc 33, that the matter should be filed with the
same magistrate who issued the warrant is
incorrect A filed matter can be “referred” to a
particular magistrate only by order of the
court, as is the case with any civil action. The
court should neither allow nor recognize any
less formal challenge to the warrant proceed-
ing, such as interloping “motions” to quash,
cancel, or recall a warrant, none of which is
legally recognized by the federal rules. Such a
civil action, being much like a Return Of Pro-.
perty Motion under Rule 41, should entail only
very abbreviated proceedings. See National
Standard Co.. supra note 33.
37/ The Administrative Proccdurc Act (A PA) in
5 U.S.C 704 requires that there be no other ade-
quate remedy in a court before a deprivation
such as a taking may be subjected to “early”
judicial review under the APA.
38/28 US.C. 1491.
39/ See Zurchcr v. Stanford Daily News, 436
US. 547 (1978), and Hannah v. Larchc, 363 Us.
420(1960).
40/ 658 F.2d 1280 (9th Cir. 1981).
41/28 US.C. 1651.
42/ 806 F.2d 967 (11th Cir. 1986).
43/ Thc Supreme Court in Bivcns v. Six Unk-
nown Agents, 403 US. 388 (1971), ruled that a
federal constitutional tort had occurred when
unknown FBI agents burgled private premises
clandestinely and without a warrant. Most feel
that the case established a rule that intentional
government conduct, reasonably recognizable
as a violation of some person’s constitutional
rights, is a constitutional tort separate from a
statutory wrong under 42 US.C. 1983. Whether
Bivens as a practical matter will survive the
Court’s more recent decision in Anderson v.
Creighton, 97 L. Ed 2d 523 (1987), remains to
be seen.
44/ Unpublished. (ED. Pa. 1985).
45/ See 67 A.L.R. Fed. 724.
46/ See United States v. Molt, 589 F.2d 1247 (3d
Or. 1978); Lo-Ji Sales, Inc. v. New York, 442
US. 319(1979); United States v. Miller, 589 F.2d
1117 (8th Or. 1978); United States v. Dennis,
625 F.2d 782 (8th Cir. 1980); and United States
v. Xampbcll, 574 F.2d 962(8th Or. 1978).
47/468 U.S. 897(1984).
48/ Ruckelshaus y. Monsanto Corp., 467 US.
986 (1984), and United States v. Riverside Bay-
view Homes, Inc., 474 US. 121 (1985). This
issue was addressed in the 1986 CERCLA
amendments which, in effect, confirmed
eminent domain power in EPA for CERCLA
purposes.
49/ See United States v. Bunker Hill Co., No. 2-
75-57, 10 Env’t Rep. Cas. (BNA) 2071 (D. Idaho
1976); see also In Re Bunker Hill Co., No. 80-
2087, 15 Env’t Rep. Cas. (BNA) 1063 (D. Idaho
1980) (conclusion of law No. 9), aff’d on all
points,658 F.2d 1280(9th Or. 1981).
50/ See In Re Bunker Hill Co., su ra note 49
(conclusion of law No. 9).
51/ If any restriction on EPA taking of photo-
graphs or other use of mechanical recordings is
insisted upon prior to or at the timc of entry,
then that is treated as a refusal of âonscnt, and
EPA can obtain a warrant to permit it to con-
duct the inspection, with specific references to
such recording devices as it expected to use.
EPA’s right to photograph during inspection
without restraint has bccn authoritatively con-
firmcd in In Re Bunker Hill Co., Id. (conclu-
sions of law No. l0 and No. II), which were
totally affirmed.
52/ Consent revocation (ye! non) and thc cffcct
of putativc revocation have cvokcd diverse
-16-
-------
National Environmental Enforcement Journal
May 1989
appellate views., as reflected in Mast n v Pul-
ham, 557 F2d 426 (5th Cit. 1977), and United
States v. Homburg, 546 F.2d 1350 (9th Cit.
1977). holding that Consent is revocable and
revocation is legally effective to restrain
government action. Contra, United States v
Hezbrun, 723 F.2d 773 (I I th Cir. 1984); United
States v. Haynie, 637 F2d 227 (4th Cir. 1980);
and United States v. Skipwith, 482 F2d 1272
(5th Cir. 1973), which state the view that, in
some instances, once consent is given it is irre-
vocable, or that attempted revocation of con-
sent is inoperative.
53/ In Re Bunker Hill Co., supra note 49 (con-
clusion of law No. 11).
54/716F.2d 1187(7thCir. 1983).
55/ 15 Env’t Rep. Cas. (BNA) 1063.
56/ Bunker Limited Partnership v. United
States, No. 85-2133 (D. Idaho 1985). The opera-
tor of the facility argued that EPA cannot
-.t..t.,;.., under a warrant, despite
EPA’s holding of a civil warrant for such pur-
poses as well as the existence of an underlying
statute that indicates to the contrary. See 1 Nat’I
Envtl. Enforcement J. 24 (Nov. 1986).
57/ As to documents being reached by a crimi-
nal search warrant under Fed. R. Crim. P.
41(h), see Donovan v. Burlington Northern,
Inc., 694 F.2d 1213 (9th Or. 1983); Hem Iron
Works, Inc. v. Donovan, 670 F.24 838 (9th Cir.
1982); United States v. Washington, 782 F.2d
807 (9th Cir. 1986); West Point-Pcpperell, Inc. v.
Donovan, 689 F.2d 950 (11th Or. 1982). The
United States Court of Appeals for the Seventh
Circuit has ruled against OSHA on the point in
Donovan v. Fall River Foundry Co., 712 F.2d
1103 (7th Cir. 1983), but in favor of EPA under
the Clean Air Act in CED’s, Inc. v. EPA, 735
F.2d 1092(7th Or. 1985).
58/691 F.2d 1125(3dCir. 1982).
59/ 387 US. 541 at 544—545.
60/ No. 85-3 133 (D.ldaho 1985) dismissed 820
F.2d 308 (9th Cir. 1987).
61/ 387 F.2d 849 (3d Cir. 1968).
62/ Andersen v. Maryland, 427 U.S. 463, 474
(1976).
63/ Congress has been less than skillful in draft-
ing entry right provisions and vacillates from
time to time between penalizing refusals and
not doing so. The real problem seems to be that
the theory and practice of warrants is not very
well understood by those preparing legislation,
regulations, and policies concerning warrants.
64/ Supra note 49.
65/ If a possessor is constitutionally privileged
to insist upon presentation of a judicially issued
warrant before the entry is effected, he cannot
simultaneously be penalized for exercising such
a privilege even if the exercise of the privilege
entails disregarding an administrative order
commanding him to allow entry. Accordingly,
the difficulty of using unilateral orders to
obtain entry should be obvious. But see Justice
Scalia’s views in Griffin v. Wiscorijin set forth
in note 8,supra.
66/ Unpublished (ED. Pa. 1984).
67/401 US. 402(1971).
68/ 436 U.S. 547 (1978).
69/ In the 1986 amendments to CERCLA,
entries of BPP premises by EPA are authorized
to EPA in section 104(cX3XD), which says that
at reasonable times EPA is authorized to enter
any vessel, facility, establishment, or other place
or propcrty where cntryjs needed to determine
the need for response or the appropriate
response or to effectuate a response action
under CERCLA.
70/ The All Writs Act enables a federal court to
craft whatever type of order the case requires
so long as no constitutional provision is
violated. See United States v. N.Y. TeL Corp.,
434 U.S. 159 172 (1977), ’whcrc the telephone
company was doing far more than merely fur-
nishing the government with evider ce. There
the court authorized government officials to
designate some equipment of the bystander
telephone company and have tracing equip-
ment appended. It commanded the tekphone
company not only to allow that, but: to furnish
the manpower and expertise to accomplish it.
See Adams v. United States cx tel. McCann,
317 US. 269, 273(1942).
71/ See Plum Creek Lumber Co. v. Hutton. 608
F.2d 1283 (9th Cit. 1979), and 58 A L.R. Fed.
704.
-17-
-------
.?1 ‘ ‘ :,
‘ £Th T
( I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON 0 C 20460
4 L pmO t
October 17, 1985
Or’SCC 0?
GCNCRAL C0UP S(L
MEMORANDUM
SUBJECT: Consuitations Between the Judicial Officer and
Agency Staff On Penthng Adjudicatory Decisions
FROM: William F. Pedersen JrLt. P
Associate General Counsel
Air and Radiation Division (LE—132A)
TO; Francis S. Blake
General Counsel
You have asked me to prepare a memorandum outlining the
extent to which the Judicial Officer may consult witl’ Agency
staff on matters pending before him for decision. The
applicable rules are as follows:
1. In cases where no formal hearing has been held under
5 U.S.C. 554 et. seq . —— for example, in the appeal of a PSD
permit or the grant or initial denial ot a RCRA permit ——
the Judicial Officer may consult any person he pleases. No
statutory restrictions apply to these decisions. However, if
the consultations result in giving persons involved in actual
enforcement proceedings that raise the same questions heavy
influence on the permit decision, the courts will be inclined to
find legal problems. Bethlehem Steel Corp. v. EPA , 638 F.2d.
994 (7th Cir. 1980). In addition, EPA regulations call for
even such informal permit decisions to be made on the basis of
an administrative record. 40 CFR 124.9, 124.18 (1984). Though
expert advice on how to interpret such a record is permissible,
it may not extend to contributing extra—record facts for the
decision on appeal. Seacoast Anti—Pollution League v. Costle ,
572 F.2d. 872, 881—82 (1st Cir. 1978). see also United
Steelworkers of America v. Marshall , 647 F.2d 1149, 1216—20
(D.C. Cir. 1980).
2. Where a formal hearing has been held, two additional
restrictions apply:
a. The Judicial Officer may not discuss the case
ex parte with any “interested person outside the agency,” 5
U.S.C. section 557(d). The legislative history of the
-------
—2—
Government in the Sunshine Act, which added this provision to
the APA, states that “interested person” is “a wide, inclusive
term covering any individual or other person with an interest
in the agency proceeding that is greater than the general
interest the public as a whole may have.” 94th Cong. 2d.
Sess. Joint Committee Print “Government in the Sunshine
Act Source Book” at 231 (quoting from Senate Report), 530
(quoting from Hcuse Report) (1976). The legislative history
also makes clear that “ [ C]ornmunications solely between
agency employees are excluded from (this] prohibition.” Id.
b. Finally, and most important here, the Judicial
Officer may not consult
an employee or agent engaged in the performance of
investigative or prosecuting functions for an agency
in [ the case under appeal or a factually related
caseJ. 5 U.S.C. 554(d).
EPA regulations governing permit proceedings provide for
defining who is subject to this bar by naming a “trial staff”
when an adjudicatory proceeding begins. 40 CFR 124.77, 78.
For civil penalty hearings, the rules simply track the statute.
40 CFR 22.08. The pesticides cancellation rules do not
mention the subject, see 40 CFR Pt. 164, but the acce eeo
custom is to define a trial staff before the hearing oe ins.
Where a formal trial staff has been designated, of
course EPA should take the position that that defines the
limits of this particular barrier’s applicability. If this
has not been done, the judgment must be based on the general
law. The legislative history of the APA largely does not
address this issue. However, the Report of the Attorney
General’s Committee on Administrative procedure, which led
directly to the enactment of the APA, described (at page 55)
the problem of “separation of functions” as follows:
It is clear that when a controversy reaches the
stage of hearing and formal adjudication the persons
who did the actual work of investigating and building
up the case should play no part in the decision
A man who has buried himself in one side of an
issue is disabled from bringing to its decision
that dispassionate judgment which Anglo—American
tradition demands of officialS who decide questions...
(T)he disquolifications produced by investigation
or advocacy are purely personal psycho1ogiC l ones
-------
—3—
which result from engaging in those types of activity;
and the problem is simply one of isolating those
who engage in the activity.
The Committee recommended that separation of functions
barriers not be extended further than needed to reach this
result, and the language of the APA indicates that Congress
chose this course.
There is very little case law on this point, but what
there is supports the view that only direct participation as
an advocate is automatically disqualifying. Supervising
advocates, or giving technical advice to advocates, should
not be disqualifying if it falls short of the kind of active
participation described in the Attorney General’s Committee
Report. See Asimow, When the Curtain Falls: Separation of
Functions in th Federal Administrative Agencies, TM 81 Colum.
L. Rev. 759, 770, 773—777 (1981).
cc: Stan Abramson, LE—132P
Coke Cherney, LE—132W
Alan Eckert, LE—132A
Lisa Friedman, LE—132S
-------
TYPES OF ADMINISTRATIVE HEARINGS CONDUCTED WITHIN EPA
1. Personnel
a. Merit Systems Protection Board (MSPB)
(5 CFR S 1201 et
b. Equal Employment Opportunity Commission
(EEOC) (29 CFR S 1613).
2. Listj or Delisting (40 CFR Part 15)
(Clean Air md Water Quality Acts matters only)
(c S 306, 42 USC S 76.06) (CAA S 508, 33 usc S 1368).
3. HearIngs Conducted Under the Consolidated Rules of Practice
Governing the Administrative Assessment of Civil Penalties
and the Revocation or Suspension of Permits.
a. FIFRA Section 14(a) (7 USC S 1361(a)
b. Clean Air Act, Section 211 (42 USC 57545)
c. Marine Protection Research and Sanctuaries Act, Section
105(a) and (f) (33 USC 5 1 415(a))
d. Solid Waste Disposal Act as amended (RCRA), Section 3008
(42 USC S 6928)
e. TSCA, Section 16(a) (15 USC S 2 615(a)).
4. Debarment and Suspension Under EPA Assistance Programs
(40 CFR Part 32)
5. Assessment and Collection of Noncompliance Penalties under
the Clean Air Act (Section 120 of CAA, 42 USC 5 7420; 40
CPR Part 66 makes 40 CFR Part 22 applicable once a hearing
is granted)
6. Control of Air Pollution from Mobile Sources (40 CFR Part
95, motor v.hicl..)
7. Spil]. Prevention Control and Countermeasure (SPCC) Hearings
(40 CPR Part 114) (Under authority of Sections 311(j) and
501(i) of the 01k, 33 USC l 3 21(j), 1361(a).
8. Procedures for Decision Making Under the Clean Water Act as
amended (Water Quality Act of 1987), RCRA, SDWA (UIC) and
CAA (PSD permits).
a. Public hearings under 40 CFR 5 124.12, Part of proceedings
to veto state—issued NPDES permits.
-------
—2—
b. Evidentiary Rearing for EPA—Issued NPDES Permits
(40 CFR S 124 subpart E)
c. Non—Adversary Panel Procedures (40 CFR S 124
subpart F, applies to some NPDES permits, draft RCRA,
or draft UIC permits)
d. New civil administrative penalty authority
1. Class I penalties
2. Class II penalties
9. Safe Drinking Water Act (SDWA) (42 USC S 300f et seq.)
a. Review of State—Issued Variances and Exemptions
(40 CFR S 142 Subpart C)
b. Federal Enforcement (40 CFR S 142 Subpart D)
c. Variances and Exemptions issued by EPA (40 CFR
Subparts E & F)
d. New Civil Administrative Penalty Authorities
1. Underground Injection Control (UIC)
2. Public Water Supply (PWS)
10. FIFRA — Registration, Classification, Cancellation and
Other Procedures (in HO)
11. Oc.an Dumping 1.rmtts (4t 220 et sep.)
12. SARA, Section 109 — no regulations issued as yet.
-------
Jeffrey Miller Stever I.J
In. D IGNING & DEVELOPING A CASE STRATEGY
a. fact gathering
b. Issue identification and sorting
c. targeting (applying priorities etc. to facts)
d. analysis of strengths and weaknesses if case
e. Identification of desired remedy
f. selection of forum
g. “packaging” the case
h. moving the case to conclusion
i. timing of initiation — e.g., judge shopping
ii. when to negotiate and when to refuse
iii. negotiaton while litigating
iv. use of the “strategic threat of overfiling”
v. settlement strategies
— when does management get involved?
— media as an enforcement tool
B. Collection of Evidence (Barrett & Welks) 1
1. investigative Techniques
a. Introduction
b. What is Evidence?
i. “Whatever is received to establish or disprove an alleged
fact.”
.._ii. “Anything perceptable to the 5 senses which tends to prove
or disprove the facts in issue.”
iii. In short, evidence exists and can be found in many different
places and forms and the job of the Hazardous Waste
Inspector is to:
Find the evidence.
_____ Recognize it for what it is when it is found.
Preserve the evidence.
Follow up on leads generated by evidence.
Communicate knowledge about the evidence. 2’ - J - - ‘_ -.
.
Development in the Preparation of a Hazardous Waste
A. Case Development
1. General Elements
- , L
a.
b.
C.
e.
c. Stages of
Case
1
-------
I. Gathering the Evidence
— This includes surveillance, interviews, search warrants,
sample taking, photographs, subpoenas, and document
review.
) i ii. Case File Preparation and Organization of Documents
a. Developing a Detailed Chronol
b. T)ocuments uL
1. Inventory
2. Do not use originals
3. Index of relevant documents
c. Summaries of Transcripts
d. Data Summaries
1. Must be accurate
— ‘ 2. giving the source - & .k. H ’—
— is includes report writing, document
review, and compilation of data from the
documents in understandable formats.
iii. These two different phases of case preparation and
development are not always linear, but often will be done
simultaneously.
d. Gathering the Evidence
Preparation by the Inspector Before Leaving the Office. The
Inspector should:
a. review the permit.
b. know what is, and what is not authorized at the site.
c. if there is an operation manual on file, review it. (See B(2),
below, Information Gathering Tools )
d. find out as much background information as possible - the
more the Inspector knows about a site or area, the more
his/her senses will be alerted to “something fishy’ t .
e. Take a notebook and take notes.
ii. Gathering Evidence while at the Scene.
— There are four sources of evidence while the Inspector is at
the scene of the investigation.
2
-------
a. Physical samples of material.
A certain amount of discretion should be used in taking
samples from the site. The Inspector must know what
r to sample and how to sample it. For example if the
\ Inspector finds unlabelled barrels that a facility
J employee admits contains a certain chemical but the
Inspector has no proof or guarantee that: (a) he is
/ correct & (b) that he will admit what he said under
oath at the trial, then the Inspector should sample the
barrel.
2. When the Inspector does take samples, he/she should:
- Be familiar with the regulations relating to how
the sample should be taken.
— Know the type of bottle or other equipment that
should be used in taking the sample.
— Ask the luestion: “Why am I sampling this?
What do I want this sample to prove or show? Is
it representative of the material or the waste
that is on the site.?”
- Sample Splitting Procedures - when to notify the
target.
3. Once the inspector has taken the sample, he/she should
follow the necessary chain-of-custody procedures.
— institutionalized chair of custody procedures
b. The Inspe or as a source of evidence.
—
tr-
It is thmportant to note detail and to be alert. He/she
must .llow time to let the senses notice things.
2 The sense perceptions become evidence—what is seen,
heard, tasted, smelled and felt are all evidence
3. Use of a camera.
— Cameras are an extension of the Inspector as
witness. Two main purposes or uses are:
— To show clearly and explicitly to others what was
seen when the Inspector was at the site.
— To preserve a piece of information so that it
d ot get lost or forgotten.
— — II 1.1 the Inspector is taking a photograph
he s e should note the distance from the object,
the direction the camera is facing, the type of
camera and film and lighting conditions at the
time the photo is taken.
3
-------
c. People as Sources of Information .
1. Who — company employees, neighbors, bystanders,
regular customers, police, utility people, anyone who
could have or did see what was going on.
2. Recognition and Uses of Hearsay
3. Obtaining Clear Admission Against Interest
4. Benefits and Detriments of Citizen Evidence
5. How - The Art of Interviewing.
d. Documents as Sources of Information — Inspector should:
— Know what he/she is authorized to ins Vhen at a
site. A
— Take the time to check records so that he/she knows
what to look for.
— See B(2), below, Information Gathering Tools
iii. Evidence Preservation
Report Writing -
a. Communication - Central purpose is to communicate
information to the reader.
b. Strive to eliminate any possibility of erroneous conclusions,
inferences or interpretations.
c. Focus On the Facts.- An effectively prepared report saves
time for the officer and the reviewers by assisting those who
must make the final decision and take action on the report.
d. A Report Must be Complete and Provide a Basis for Action.
i. If the report is not complete and factual, time will be
wasted in attempting to remedy the situation by
making a supplemental investigation or report.
ii. A report is a written record of the results as of the
investigation and provides the permanent record which
may later be used either as evidence itself or to
refresh a recollection.
e. General Standards of Investigative Writing.
i. Write to express — not to impress: The Inspector’s
purpose is to relate the facts and evidence necessary
to prove the elements of the offense charges. I-low the
evidence was acquired is neither relevant nor material,
except to show “the absence of a taint.”
4
-------
ii. Keep it simple — inspector should write as he/she
talks. Write plainly and with simple language.
iii. Keep the reader in mind. - The Inspector should keep
in mind that the goal is to communicate to the
reader. The less energy that the reader spends
understanding the words and their reltionships, the
easier it will be for the reader to understand the
writer’s thoughts.
f. Essentials of Good Reports and Things to Include.
i. Surrounding circumstances. The Inspector should
include facts about the witnesses background if they
reflect on his credibility or small details that you
would not normally, ordinarily recall six months to a
year after doing the inspection or report.
g. Test for Completeness - The report is complete only if it
answers the quest ions who, what, when, where, why and how.
i. The who in reports.
1. AU individuals mentioned in a report should be
completely identified the first time the name is
mentioned; including their first, middle and last
names, if possible.
2. The individual should be identified by a brief
descriptive phrase identifying who he is. (e.g.,
whether its plant manager, neighbor, employee,
etc.)
3. A complete description of the person should be
given if the name or any other identifying
information is not available.
ii. The what in reports. - What happened? It means just
that, no more or no less. It does not mean what could
have happened or might have happened. It means
what, to the Inspectors’s knowledge, happened.
iii. The when in reports.
1. The when is the date or time the happening
occurred or an approximation if the exact time is
unknown.
iv. The where in reports. Where is a definitive place to
the exclusion of all other places. It should be so
clearly identified tht there is not confusion or
misinterpretation.
v. The why in reports.
5
-------
1. What is particularly significant with respect to
violations where intent is the element of the
offense. In such cases the report writer’s
objective is to set forth the facts that show the
intent with such clarity that there is no need for
his own conclusions or opinions to be in the
report. If the suspect or the individual states
why he did an act, the report would be fadtual if
It reported “Jones said that he dumped it
because.”
h. Conciseness
— Conciseness is not omission - it takes practice to be
both concise and complete.
I. Conciseness may be omitting words but it is
never omitting facts, detail and necessary
explanation. Clarity and completeness are more
important that conciseness.
ii. Conciseness means simply the removal of
elaboration or what is not essential in the reort.
The Inspector should:
1. use short sentences and paragraphs
2. use active verbs
Clarity and Logical Presentation
The report must be written clearly in order to avoid
misinterpretation. Writing takes time and effort —
The Inspector should be instructed. Order your
thoughts; select those most useful to the reader;
arrange them logically; and select the words that will
best convey your thoughts to the reader.
— Pronouns — Careless use of personal pronouns is a
frequent cause of ambiguity. If it is not
absolutely clear to whom a pronoun refers, do
not use it.
— Concrete Expressions - Use a concrete specific
expression over an abstract or general
sttement. Poor writing often reflects a failure
• to select words which paint a clear mental
picture.
— Avoid the “it” habit.
— Simplicity
— Punctuation — Punctuation is important in order
to make the meaning easy to understand.
6
-------
Example:
“The employee said the foreman is a blockhead.”
The employee said, “the foreman is a blockhead.”
The employee, “said the foreman,” is a blockhead.”
—QUESTIONS & ANSWERS—
2. Information Gathering Tools
a. Existing or Recorded Information
i. Environmental agency files
1. permit applications
2. correspondence
3. inspection reports
4. sampling data
5. citizen complaints.
ii. RCRA required information
1. manifests
2. quarterly reports
3. notification filings
iii. EPA files
iv. OSHA and State OSHA Files
v. Workmen’s Compensation Claims
1. employee identities
2. operational information
3. responsible individuals
vi. Labor and Industry records
1. employee lists
2. employee status or continuation reports
vii. Corporate and partnership papers
viii. SEC filings
1. form 10—K
a. principal products and properties
b. legal proceedings
7
-------
c. financial data
d. business trends
e. directors and officers
2. form l0-q (quarterly report)
3. form 8-K (unscheduled material events)
4. annual report
lx. Consumer Protection files
1. complaints
2. consent orders
3. inspections or reports
x. ICC data
1. applications
2. Inspections
3. violation results
xi. State Utilities Commission
xii. State transportation (hazardous substances) agency
xiii. County planning agency photos
xiv. Photographic and historical imagery
1. EPIC photos and analysis
2. National archives (Suitland, MD)
3. Soil conservation services, (NOAA, Salt Lake
City, UT)
4. EROS Data Center (US GS/NOAA, Sioux Falls,
SD)
5. Federal and state transportation agencies
6. Tax agencies
7. Environmental Monitoring System Lab
(EPIC Advanced Monitoring System Division, Las
Vegas, NEV)
8. Commercial aerial mapping
9. Local planning commissions
10. National Cartographic Information Center
(Reston, VA)
xv. Local records
1. tax maps
2. engineering maps
3. construction permits and applications
4. sewer line maps
5. title (deed) records
6. fire marshall
xvii. Local police officials and records
xviii. Uniform Commercial Code filings
8
-------
1. secured equipment
2. major creditors
xix. Court records
1. pleadings from private litigation
2. bankruptcy files
xx. Information systems
1. NEIC
2. Northeast project
xxi. Dunn and Bradstreét reports
xxii. Newspaper files
xxiii. Tax information
1. state returns
2. federal returns pursuant to 26 U.S.C. S6103(i)
xxiv. Administrtive orders for information
1. section 104(e) of CERCLA (42 U.S.C. S9604 [ e])
2. section 3007 & 7001, of RCRA (42 U.S.C. §6927 &
6971.
3. section 308 of CWA (33 u.s.c. §1318)
4. sections 507 & 509 of CWA (33 u.s.c.
SS1367(e)&1369)
5. state authority
xxv. Discovery Evidence
b. Inchoate Evidence
i. Interviews
ii. Inspections
iii. Sampling
iv. Surveillance/Observations
—QUESTIONS & ANSWERS—
[ PROGRESSIVE EXERCISES
C. Determining the Nature of the Violation(s) h”.’ i
1. identify the ‘ 1 cleanest” violations
9
-------
— or most significant
2. priorItizing etc. (use worksheet approach)
D. Deciding Who to Move Against
1. analysis of strengths & weaknesses of case
a. legal and equitable defenses
b. fact-gathering problems/gaps
c. political or policy problems
d. resource problems
— requires consultation with lawyers
2. deciding the appropriate target - -‘ 1&.’ à( \ ‘ 1 ,
a. subsidiary vs. parent and subsidiary J
b. piercing the corporate veil (either to get to parent corp. or to
principals of closed corporation).
- must be able to show that the entity you seek is
the”alter ego” of the corportion.
c. more than one defendant
3. the insolvent or tactical bankrupt
a. moving prior to bankrupt
b. avoiding “avoidable” forms of relief
c. help from the legislature
— “tax lien” status
— authority to proceed dire’ tly against guarantor or
insurer
— statutory right to sue parent of bankrupt subsidiary
where parent owns controlling interest less than 100%
15
Choice of Remedy and Forum
appropriateness of remedy
seriousness of violation
is remedy responsive to problem (e.g., criminal prosecution
won’t clean up ground water)
fairness
speed
a.
b.
c.
d.
2. character of forum
a. is judge, AL Board etc. likely to grant relief if case is
proven?
3. parallel civil and criminal proceedings
10
-------
a. not impossible
b. unpopular with some prosecutors
c. subject to constitutional limits
d. appropriate where different remedies are sought, or where
there is a civil corporate defendant and criminal individual
defendants.
4. character of defendant
a. lesser responses wasted on recalcitrants
b. big penalties unlikely against public body. These need
flexible use of equitable remedies. E.g., U.S. v. City of
Detroit .
5. character of violation and consequence
a. willful violation may warrant criminal prosecution,
especially if individuals can be prosecuted and the violation
is of consequence, such as cover-ups, actual environmental
harm or injury to persons.
b. technical violation of no consequence does not warrant
major action.
6. need for quick action
i. stop leaking
ii. prevent defendant from fleeing or hiding assets
7. need for precedent in interpreting law or as a lever for
seeking legislative action.
i. where case involves a new issue of law or a new interpretation
of an ambiguous term in whatever forum the facts supporting
your interpretation must be strong (tthard facts make bad law”)
ii. you might want to lose to convince the legislature that you
need clarification.
8. need for media coverage of the program (some forums interest the
media more than others - courts generally higher visibility than
administrative proceedings)
9. effect of action on behavior by regulated entities
F. Packaging and Staffing
1. standarized enforcement file — ) &
—
— guard against slavish following to detrim nt of case’
2. adequate oversight without undue drag on process
3. staff resources a function of priority & complexity of the matter.
G. Moving the Case Along
1]
-------
1. docket tracking
I. computerized
Ii. link with A.G.
iii. staff briefings
2. target points and sequencing
— use of timed decision points
— avoidance of bean counting
—QUESTIONS & ANSWERS—
(kL.
L 4 -
H. Settlement
‘
a. identifying point of critical leverage
b. void otractd settlement negotiations with the pressure off -.-. -.- J
2. the vi style and the friendly style
3. “standar ‘ e lement t?rms
. 4 Z L
2 r 1 ‘j4
— value ana intelligent waiver
4. false bottom lines and the real thing
4
o ts3 i 1
3 a. evaluating defendant’s arguments
b. the “1 can’t afford it” argument
c. technological infeasibility
d. no penalties (creative penalties)
5. use e rt at settlement ta e
6. seffln a settlement to the public
a. values and pitfalls of public participation
b. Negotiating press releases
7. “Negotiate or
— most litigation settles through negotiaton. Litigation may be
used to enhance abilit to negotiate.
a. Discovery
i. Exposes strengths and weaknesses of both sides
ii Can pressure defendant in subtle ways-getting close to
problem in other areas, free discovery for priviate
litigants, threats to corporate officers.
12
-------
b. Pretrial motions can dispose of deadlock issues.
c. Judge forces negotiation - a quasi-mediator
d. Litigation creates useful deadlines to move negotiation which
only the judge can defer.
ici DefenseStrateges L
1. $he mbpra 1ig permissive documçnt
2. i* ib tff r L L - X -4 - ’
3. no environmental harm
4. de minimus violation
5. not a violation of statute
6. regulation unreasonablec- .
:
a. attack on regulation or requirement
b. attack on enforcement — Si 983 suit
c. attack on investigation - Dow overflight case
9. aggressive litigation -
10. political end runs - crP.1 lu& ç ‘ - ‘ -
.
J. Better Enforcement Through Better
a. Terms
1. Information provisions.
2. Regular reports.
3. Mandatory notification.
4. Create presumption of violation.
5. Shift burden of proof/burden of going forward.
6. Sampling of monitoring wells - periodically as appropriate
(certify like DMRs).
7. Periodic submission of manifests.
8. Sufficient financial guarantees/condition financial guarantees
upon compliance with permit and permit condition, as well as
Act and regulations.
9. Require compliance with other state laws/standards (air,
water laws).
10. Determine remedial actions in advance if appropriate, e.g.
drinking water supply replacement requirement (particularly
if stat j is silent).
II. Prohib1t drscharge or leach to groundwaters (make
discharge/leach to groundwater a violation 1 not just that
which kicks in notice to agency or groundwater assessment).
12. Broad grounds for automatic revocation.
13. Prohibit.aJl modification/alteration of design or operati ( \
14. Access to site, to records.
• g raing.
16. Issued on applicant% resentations. Not a guarantee ( I w
13
-------
b. Procedures
1. Permit denial if applicant fails to affirmatively demonstrate
compliance with all laws.
— > 2. Permit denial if applicant fails to accept permit condition in
advance of Issuance. t-’-, . t rL - Z ’
a< ve agency resources.
b. Favorable burden of proof/burden of going forward.
c. Leverage.
c. Keeps control of design and operation of the facility in
agency .
—QUESTIONS & ANSWERS—
[ DISCUSSION PROBLEM ]
14
-------
LITIGATION PACKAGE
I. Introduction
Brief surrmary of alleged violations.
II. Subjects of Investigation.
A. Corporation
1) Complete name of company and parent corporation.
2) Complete address of company.
3) Complete address of facility associated with
offenses, including county.
4) State of incorporation of corporate subjects.
5) Registered agent for service.
6) Brief statement explaining nature of business and
size of company.
7) List any and all permits, either issued or
pending, EPA identification numbers or hauler
certification numbers.
8) Name of attorney representing the company, if
known.
B. Individuals
1) Name, title.
2) Approximate age.
3) Address (both home and work, If possible)
4) Position in company or relation to company.
III. Enforcement and Regulatory History
This section should include a description of all known
enforcement activity (State and Federal) taken against the
subject(s) in the past relating to environmental matters
generally. In addition, any previous efforts by the State
to remedy the present problem through informal,
administrative or civil means should be noted.
-------
IV. Description of Evidence.
A. Background Information.
—— A complete chronology of State-subject contacts
and coamunications (both written and verbal) should be
prepared. Any written corrrnunications referenced in
the chronology (i.e., site complaints, civil penalty
assessment, inspection reports) should be attacJ ied as
exhibi ts.
B. Photographs.
All relevant photographs should be identified by
date, photographer and a verbal description of what is
depi eted.
C. Laboratory Samples.
For each sample that was taken, the following
information should be provided:
1) Date of Sample.
2) Location.
3) Sampler
4) Description of type of container sample was taker
in.
5) DescriptIon of how sample was packed and
transported back to lab (i.e., iced or not, how
long it took to get It from the source to the
lab).
6) Description of chain-of—custody from source to
lab.
7) Names of analysts and what types of analyses were
per fo rrn e d.
8) Results.
(Note, lab analysis sheets and a copy of the
chain-of—custody form for each sample should be
attached as exhibits.)
D. Miscellaneous Information.
This should include any fact or piece of evidence
not included above that is relevant to the proposed
case.
—2-
-------
V. Environmental Impact:
This section should provide some assessment of the
significance of the environmental harm or human health
hazard resulting from the conduct under investigation.
This should be at a minimum, an educated estimate, based on
the type of pollution, the location, normal operating
capacity of facility, and other relevant ascertainable
facts.
VI. Mitigating factors. -
Any fact which might excuse or exonerate the subjects
should be detailed in this section.
VII. Possible Defenses.
VIII. Possible Witnesses.
Any and all possible witnesses should be listed, in
alphabetical order with a brief description of who they are
and why they might be a witness. For example:
John Doe Regional Inspector Received the
original complaint
from the citizen.
Mr. X Driver for ABC company Was present on-site
when conversation
between W and Y
occurred.
—3—
-------
INFORMATION GATHERING TOOLS
Keith Weiks
Existing or Recorded Information
A. Environmental agency files t&cJ
1. permit applications
2. correspondence
3. inspection reports
4. sampling data
5. citizen complaints
B. RCRA required information
1. manifests
2. quarterly reports
3. notification filings
C. EPA Files
D. OSHA and State OSHA Files
E. Workmen’s Compensation Claims
1. employee identities • t1&_4
2. operational information
3. responsible individuals
F. Labor and Industry records
1. employee lists
2. employee status or continuation reports
G. Corporate and partnership papers
H. SEC filings
1. form lO-K-
a. principal products and properties—
b. legal proceedings
c. financial data
d. business trends
e. directors and officers
2. form lO-q (quarterly report)
3. form 8-K (unscheduled material events)
4. annual report—k- J L4.& 4 ;
I rt
d 4—
I ’
r .i..
-------
ar t nfi1e
1. complaints
2. consent orders
3. inspection or reports
x. ICC data
1. applications— ‘ -L
2. inspections
3. violation results
xi. State Utilities Commissions
xii. State transportation (hazardous substances) agency
xiii. County planning agency photos
xiv. Photographic and historical imagery
I. EPIC photos and analysis
2. National archives (Suitland, MD)
3. Soil conservation services, (NOAA, Salt Lake City, UT)
4. EROS Data Center (US GS/NOAA, Sioux Falls, SD)
5. Federal and state transportation agencies
6. Tax agencies
7. Environmental Monitoring System Lab
(EPIC Advanced Monitoring System Division, Las Vegas, NEV)
8. Commercial aerial mapping
9. Local planning commissions
10. National Cartographic Information Center (Reston, VA)
xv. Local records
1. tax maps
2. engineering maps
3. construction permits and applications
4. sewer line maps
5. title (deed) records
6. fire marshal
xvi. Local police officals and records
xvii. Uniform Commercial Code filings
1. secured equipment
2. major creditors
xviii. Court records
1. pleadings from private litigation
2. bankruptcy files
xix. Information systems
1. NEIC
2. Northeastproject c - J 4 c
I
-------
xx. Dow Jones Reports
xxi. Dunn and Bradstreet reports- ‘ k c c.i A,
xxii. Tax information j,i<
1. s returns ‘ .
2. federaljreturns pursuant to 26
xxiii. Administrative orders for information
1. section 104(e) of CERCLA (42 U.s.c S9604 [ e])
2. section 3007, & 7001, of RCRA (42 U.S.C S6927 & 6971)
3. section 308 or CWA (33 U.S.C. §13 18)
4. section 507 & 509 of CWA (33 U.S.C. SS1367(e) & 1369)
5. state authority
xxiv. Discovery Evidence
xxv. 5ales brochure and publications
xxvi. Trade associations and special interest publications
.— .xxvii. Environmental audits and risk assessment- - -r’ ’ ’
xxiii. Insurance analyses and assessments. (Sanborn insurance maps: pre-
1929, Library of Congress)
b. Inchoate Evidence
i. Interviews
ii. Inspections
iii. Sampling
iv. Surveillance/Observations
-------
i 1 —87
NEWS & ANALYSIS
17 ELR 10441
Hearings Before an EPA Administrative Law Judge
by Judge Gerald Harwood
Editors’ Summary: Practice before administrative agencies, especially EPA.
has always been an important part of an environmental lawyer’s job. Admin-
istrative practice is becoming increasingly important. Several statutes have
recently been amended to provide for the administrative assessment of civil
penalties by EPA. The first step after EPA proposes to assess a civil penalty
is generally a hearing before an EPA administrative law judge (AU). Judge
Harwood, EPA ‘s Chief Administrative Law Judge, describes the role of the
A U within EPA and the statutes under which adjudicatory hearings most
frequently arise. Judge Harwood then outlines the pro ceduresfollowed in hear-
ings before EPA ALJs, from the administrative complaint through the issuance
of an initial decision.
W hen the Environmental Protection Agency (EPA)
proposes to assess a civil penalty against a party
for violating the law or regulations or to deny, modify,
or revoke a license or permit, due process requires that it
first grant the party a hearing on the matter. In most in-
stances such hearings are held before an administrative law
judge ‘ The administrative law judge is an employee of
EPA who by statute is made largely independent of super-
vision and control by EPA to ensure the judge’s impar-
tiality in presiding over and deciding cases. 2
The Office of Administrative Law Judges
EPA’s administrative law judges constitute a staff office
under the Administrator. A Chief Administrative Law
Judge has general charge of the office but also presides
over cases like the other judges. 3
The Office is authonzed to have seven judges, including
the Chief Judge. For reasons that are largely historical,
two of the judges are located outside of Washington, D.C.,
one judge having his office at the Region IV headquarters
in Atlanta, Georgia, and the other judge at the Region VII
Judge Harwood is the Chief Administrative Law Judge for the United
States Environmentai Protection Agency This articie was written by the
author in his private capacity No officiai report or endorsement by the
United States Environmentai Protection Agency is intended or should
be inferred
I Administrative law judges preside over hearings that are required
by statute “to be determined on the record after opportunity for an
agency hearing “ Administrative Procedure Act (APA). 5 U S C
§554(a), ELk STAT Ar .mi PRoC 004 The statute may expressly
say that the hearing is to be “on the record,” or this may be infer-
red from the nature of the hearing provided seacoast Anti-PQiiution
League v Costle, 572 F 2d 872, 8 ELk 20207 (1st Cir 1978), cert
denied. 439 U S 824 (1978) Administrative law judges may also
preside over other hearings if requested by EPA
headquarters in Kansas City, Kansas. The remaimng judges
are located at EPA headquarters in Washington, D.C.
Cases are assigned to the judges by the Chief Judge.
Assignments are made in rotation so far as practicable, ex-
cept that when the workload permits, the judges in Wash-
ington, D.C., will be assigned cases that are heard in
Washington, D.C., and the judges in Atlanta and Kansas
City will be assigned cases that will be heard in their respec-
tive cities.
Another factor taken into account in assigning cases is
the availability of the judge because of commitments to
cases already assigned and the relative size of the judge’s
workload. Although all judges theoretically start with the
same number of cases, for any number of reasons the per-
centage of cases that actually go to hearing may vary great-
ly between judges, and some cases will require considerably
more work than others. Finally, the Chief Judge may
depart from the rotational order to take a case that is of
unusual difficulty.
Statutes Providing for Hearings
Hearings before an administrative law judge are provided
under numerous statutory provisions. Cases currently arise
most frequently under the following statutes:
Clean Air Act §120 4 —assessment of a civil penalty
against a stationary source that is not in compliance with
any applicable emission requirement.
Clean Air Act 4207(c) 5 —hearing on the recall of motor
vehicles that do not conform to emission standards.
Clean Water Act §402 6 —hearing on a challenge to a per-
mit regulat4ng the discharge of pollutants into the water.
Resource Conservation and Recovery Act (RCRA)
§3008’—the assessment of a civil penalty and issuance of
a compliance order for failure to comply with requirements
relating to the generation, transportation, treatment,
storage, and disposal of hazardous waste.
Toxic Substances Control Act (TSCA) §16(a)’—the
assessment of a civil penalty for failure to comply with the
requirements relating to toxic substances.
Marine Protection, Research and Sanctuaries Act
2 The pay of the administrative law judge is prescribed by the Office
of Personnel Management 5 U S C §5372 The judge can be remov-
ed only for good cause established and determined by the Merit
Systems Protection Board after a heanng, 5 U S C §752i, and the
judge’s performance cannot be rated by EPA 5 U S C § 4302, 4303
The judge’s impartiality is assured by a ngorous “separation of func-
lions” that insulates the judge from any supervision or direction by
agency employees who have participated in the investigation or pro-
secution of the case and that also prohibits any ex parte discussion
by the judge with any person on any fact in issue APA, 5 U S C
§554(d), ELR STAT ADMIN PRoc 004
3 In addition to the judges, the staff of the Office consists of the hearing
clerk, who has custody of the case files, an assistant to the hearing
clerk, a legal staff assistant to assist the Chief Judge in the administra-
tion of the Office, secretaries, and one attorney advisor
4 42USC
S 42USC
6 33 USC
7 42 USC
8 i5USC
§7420, ELR STAT 42226
§7541(c), ELR STAT 42247
§ 1342
§6928, ELR STAT RCRA 0i9
§26i5(a)
-------
17 ELR 10442
ENVIRONMENTAL LAW REPORTER
11—87
§105 (a) and (i7 ’—the assessment of a civil penalty for viola-
tion of the-restrictions on ocean dumping and the revoca-
tion or suspension of a permit for dumping materials into
the ocean.
Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA) §3(c)(2)(B)’°—suspension of a registration
because of failure to secure additional data required to
maintain a registration of a pesticide.
FIFRA §611_hearing on refusal to register a pesticide,
cancellation of a registration, suspension of a registration,
changes in the classification of a pesticide and applications
under FIFRA § 3 and 18 to modify a previous cancellation
or suspension order. -
FIFRA §14(a)’ 2 —assessment of a civil penalty for viola-
tions of the Act.
Hearing Procedures
The procedures in a hearing before the administrative law
judge depend upon the statute under which the hearing is
brought. One basic procedure, however, applies in all
cases. All decisions issued by the administrative law judge
are reviewed by the Administrator or his delegate, the
Judicial Officer.’ 3 The review can be either discretionary
or mandatory, and this again depends upon the statute
under which the proceeding is brought.
Hearings Governed by Consolidated Rules
The largest number of cases currently being handled by
the administrative law judges are governed by the Consol-
idated Rules of Practice.’ 4 These rules apply to proceedings
under FIFRA §14(a), RCRA §3008, TSCA §16(a), and
Marine Protection, Research and Sanctuaries Act §105.’
A recent amendment also applies these rules to the assess-
ment of Class II penalties under Clean Water Act §309(g).’
In addition to general rules applicable to proceedings under
each of these provisions, the consolidated rules contain
supplemental rules specifically addressed to each provi-
sion ‘
Cases under the consolidated rules are instituted by the
issuance of a complaint setting out the acts and practices
being questioned.’ 8 In the case of a complaint under RCRA
§ 3008, the complaint must also contain a compliance
order.’ 9 An administrative law judge is not assigned to the
9 33 U S C §1415(a) and (I), ELR STAT 41865
iO 7USC §i36a, ELR STAT FIFRAOO5
II 7USC §i36d,ELRSTAT F1FRAOI2.
i2 7USC §1361, ELR STAT FIFRAO2O
i3 Since in most instances revie is by the Judicial Officer, reference
to the Judicial Officer hereafter will mean the Administrator when
the Administrator elects to review a case
14 4OCFR §22
iS 40 C F R §22 Oi The consolidated rules also state that they apply
to civil penalty cases under Clean Air Act §211 The Judicial Of-
ficer, however, has ruled that §211 does not authorize the imposi-
tion of administrative penalties See In Re Transportation, Inc , No
CAA(21 l)-27 (Feb 25, 1982)
16 33 U S C §1319(g) See 52 Fed Reg 30671 (Aug 17, 1987) Class
ii penalties may reach 5125,000 See Liebesman & Laws, The Water
Quality Act of 1987 A Major Step Ahead in Assuring the Quality
of the Nation’s Waters, 17 ELR i031I, 10317 (Aug 1987)
17 See, e g , supplemental rules for civil penalties under RCRA §3008.
4OCFR §2237
IS 40 C F R §122 13 and 22 14
19 40 C F R §22 37(e)
case until an answer is filed. Motions for an extension of
time to answer or for other relief filed prior to the answer
must be made to the Judicial Officer if the complaint is
issued out of Washington, D.C., or to the Region
Administrator, if the complaint emanated from a Region
Office.
Once the case has been assigned to an administrative law
judge, the parties are usually directed by the judge to
discuss settlement, if this has not already been done, and
to report on the status of settlement. 2 ° If the case cannot
be settled, the parties will be directed to exchange their evi-
dence by supplying lists of proposed witnes ’Ses with a sum-
mary of their expected testimony and copies of documents
they intend to introduce into evidence.si They may also
be directed to furnish such other information as the judge
considers relevant. This is almost always done by corres-
pondence, or if it cannot be satisfactorily handled by
correspondence, then by a telephone conference. Very rare-
ly do the proceedings under the consolidated rules require
prehearing conferences where the parties are personally
present. The matter is set down for a hearing once it has
been determined that settlement is unlikely. At least twenty
days notice of hearing is required. 22 The parties, of course,
may still continue with their efforts to settle, and can set-
tle any time up to the commencement of the hearing. Hear-
ings must be held either at the place where the respondent
is located or does business, in the city where EPA’s
Regional Office is located (if the complaint has been issued
by a Regional Office), or at EPA headquarters at Wash-
ington, D.C., unless there is some good reason for holding
it elsewhere. 23 The practice has been in most instances to
hold the hearing at the place where the respondent is
located or does business.
One special feature to be noted about practice under
consolidated rules is that discovery is not as liberal as
is under the Federal Rules of Civil Procedure where par-
ties are free to engage in discovery and the court gets in-
volved only if a party applies to it for some relief. There
is no discovery under the consolidated rules over and above
that obtained through the prehearing exchange except to
the extent permitted by the judge upon application by a
party. In fact, this is generally true of all hearings before
EPA. 24
In proceedings under FIFRA § 14(a), there is no authority
to issue subpoenas. While this limits the ability of a party
to obtain information from someone unwilling to furnish
it, it does not leave the party totally without a remedy. In
such cases, if a party refuses to produce information in
its possession or control, the party requesting the infor-
matiori can ask the judge to draw the inference that the
information would be adverse to the position of the party
refusing to produce the information. 21 The inference,
however, has to flow logically from the nature of the
evidence being sought. For example, if a party claims that
it lacks the financial resources to pay a penalty but refuses
to produce statements of its financial condition, the in-
ference can be drawn that the party does have the means
to pay the penalty. It is unlikely, however, that any in -
20 4OCFR §22 18
21 4OCFR §2219(b)
22 4OCFR §2221(b)
23 4OCFR §2219(d)
24 4OCFR §2219(0
25 See 40 C F R §22 04(c)(5)
-------
11—87
NEWS & ANALYSIS
17 ELR 10443
ference could be drawn from the refusal to produce finan-
cial statements as to who owns the corporation or whether
the stock is held by one individual or several individuals.
Under the consolidated rules, the judge renders an “in-
itial decision.” Such a decision becomes the final decision
of the EPA unless an appeal is taken by a party or the
Judicial Officer elects to review the decision sua sponte
within the time allowed in the consolidated rules. 2 ’ The
rules also allow for the granting of an accelerated decision
(really summary judgment) when a party can demonstrate
that there is no dispute as to the material facts and the party
is entitled to judgment as a matter of law. 27
The consolidated rules allow a party to file a motion to
reopen an initial decision within 20 days after the initial
decision is issued to adduce additional evidence if it is
shown that there is good cause why the evidence could not
be presented at the hearing. 2 ’ Outside of this limited ex-
ception, the administrative law judge has no further juris-
diction over the matter once the initial decision is issued.
Requests for extensions of time to appeal or for other relief
must be made to the Judicial Officer. 2 ’ Regardless of
whether the complaint issued out of the headquarters in
Washington, D.C , or out of a Regional Office, all appeals
are taken to the Judicial Officer. While the agency has no
further appeal to the courts from a final order, the other
party may seek judicial review of an adverse order.”
One final thing to be noted is that, in assessing a civil
penalty, the judge must consider any guidelines that the
agency has issued with respect to the assessment of civil
penalties under the Act involved, if the judge decides not
to follow the applicable guideline, the judge must give
reasons for not doing This requirement, however,
does not apply to the Judicial Officer.’ 2
Hearings Not Governed by the Consolidated Rules
The consolidated rules do not apply to all adjudicative
26 4OCFR §2227(c)
27 4OCFR §2220
28 4OCFR §2228
29 40 C F R § 22 27(c). 22 29(c)
30 It depends upon the statute as to whether judicial review is in the
district court or in the court of appeals Civil penalties assessed under
TSCA §16 and FIFRA §14 are by statute specifically made reviewable
in the Court of appeals See TSCA §i6(a)(3), 15 U S C §26l5(a)(3),
FIFRA §16(b), 7 USC § 136n, ELR STAT FIFRA 022 On the other
hand, RCRA has no comparable statutory provision for judicial
review of penalties assessed or compliance orders issued under RCRA
§3008 Review in such cases has been obtained in the district court
See Chemical Waste Management v United States Environmental
Protection Agency, 649 F Supp 347, 17 ELR 20521 (D D C 1986)
31 40 C F R §22 27(b) For FIFRA civLl penalty guidelines, see Guide-
lines for the Assessment of Civil Penalties under eciion 14(a) Qf
the Federal Insecticide, Fungicide, and Rodenticide Act, as Amend-
ed, 39 Fed Reg 27711 (July 31, 1974), for RCRA guidelines, see
Final RCRA Civil Penalty Policy (May 8. 1984), ELR ADMIN
MATERIALS 35089, for the TSCA guidelines, see Guidelines for the
Assessment of Civil Penalties under Section 16 of the Toxic Sub-
stances Control Act, 45 Fed Reg 59770 (Sept 10, 1980), for the
general rules that have been supplemented by the following policy
statements Policy for Violations of the Regulations dealing with Poly-
chlorinated Biphenyis, 45 Fed Reg 59776 (Sept 10, 1980), Record-
keeping and Reporting Rules, TSCA, Sections 8, 12 and 13, Enforce-
ment Response Policy, (May 15, 1987), and Revised Enforcement
Response Policy for the Friable Asbsestos-Contatning Materials in
Schools Identification and Noitfication Regulation (June 22, 1984)
For a recent decision by the Judicial Officer discussing the con-
sideration that the administrative law judge must give to the penalty
guidelines, see A Y McDonald Industries. RCRA(3008) Appeal No
86-2 (July 23, 1987)
32 See A Y McDonald Industries, Inc. supra note 31
hearings conducted by EPA, presumably because the
nature of the hearing provided under some statutes makes
it desirable to have special rules of practice. A common
feature of these proceedings is that they are not instituted
by the usual complaint and answer. Instead, the hearing
is granted only after a party has demonstrated to EPA that
there are factual issues on which the party is entitled to
an evidentiary heanng. Like the consolidated rules, the pro-
cedures provide for prehearing conferences, limited
discovery over and above the prehearing exchange, accel-
erated decisions, motions, and the like. There are, however,
features peculiar to each that will be briefly’mentioned.
0 Clean Air Act §120’ Proceedings under §120 are
brought against a major stationary source (building, struc-
ture, or installation) that has not complied with the stan-
dards regulating the emission of pollutants into the at-
mosphere. 5t The penalty assessed is the savings realized by
the source in not complying with the standard. The sav-
ings, or economic benefit, is computed according to a com-
plex formula, and EPA has developed a computer program
for its calculation.’ 4
The first step in §120 proceedings is an EPA notice in-
forming the source of the agency’s finding of noncompli-
ance. At this point, the source has two options: calculate
the penalty following the agency’s model, or petition for
reconsideration on the ground that the finding of noncom-
pliance is wrong or that the source is entitled to one or more
of the exemptions allowed under the statute. 3 ’ The statute
requires that EPA act on the petition and hear and deter-
mine the matter within 90 days. 1 ’
EPA has provided for a hearing in two stages. If the
source contests the finding of noncompliance or asserts that
it is entitled to an exemption, a hearing is first held to deter-
mine the source’s liability for a penalty, which must be
completed and an initial decision issued within 90 days.’ 7
If found liable, the source must then calculate the penal-
ty. If EPA disagrees with the amount, it recalculates the
penalty. The source, if it objects to the recalculation, is
then given a hearing on its objections, which must also be
completed and decided within 90 days. 31 The 90-day limita-
tion applies only to the decision of the administrative law
judge, and the time can be extended if both parties agree.
In both the hearing on liability and the hearing on the
amount of the penalty an appeal is allowed to the Judicial
Officer, who must decide the appeal within 30 days.”
O Clean Air Adt §207(c): Another proceeding under the
Clean Air Act where an adjudtcative heartng is provided
is where EPA requires an automobile manufacturer to
recall a class or category of motor vehicles when EPA has
round that a substantial number of vehicles do not con-
33 The procedures for hearing cases under Clean Air Act §120 are found
at 40 C F R §66
34 See 45 Fed Reg 50086 (July 28, 1980), 50 Fed Reg 36732 (Sept
9, 1985) For cases dealing with the assessment of penalties under
§ 120, see Duquesrie Light Co v United States Environmental Pro-
tection Agency, 698 F 2d 456, 13 ELR 20251 (D C Cir 1983), Du-
quesne Light Co v United States Environmental Protection Ageis-
cy, 791 F 2d 959, I6ELR 20790(D C Cir 1986), American Cyana-
mid Co v United States Environmental Protection Agency, 810 F 2d
493, 17 ELR 20642 (5th Cir 1987)
35 4OCFR §6666 li-66 13
36 Clean Air Act §i20(b)(5), 42 U S C §7420(b)(5), ELR STAt 42227
37 40 C F R §166 4i-66 43 and 6693
38 40 C F R §66 5i-66 54
39 4OCFR §6695
-------
17 ELR 10444
ENVIRONMENTAL LAW REPORTER
l1—87
form to the emission standards though properly maintained
or used. ’°
Again, EPA notifies the party that it has been found
to be in noncompliance, in this case by sending it a notice
of nonconformity and directing it to submit a plan for
remedying the nonconformity within 45 days. It should be
evident that this may require the recall of thousands of
vehicles that have to be corrected in some fashion at the
manufacturer’s expense in order to bring them into com-
pliance. If the manufacturer disagrees with the finding of
nonconformity, he may request a hearing on this issue. 4 ’
This decision is final unless appealed to the Judicial Of-
ficer, or unless the Judicial Officer reviews it sua sponte. 42
D FIFRA §6: In addition to proceedings for the assess-
ment of civil penalties under §14(a), FIFR.A §6 provides
for adjudicative hearings on the cancellation or suspen-
sion of a registration of a pesticide, on a refusal to register
a pesticide, or on a change in the classification of a
pesticide (e.g., changing the classification from a general
use to restricted use pesticide). 43
There are two kinds of proceedings involving the
cancellation of a pesticide or change in classification. One
is where the Administrator issues a notice of intent to
cancel the pesticide or change the classification. The other
is where the Administrator issues a notice of his intention
to hold a hearing to determine whether to cancel the regis-
tration or change the classification of a pesticide. In both
cases the registrants are sent a copy of the notice and the
notice is also published in the Federal Register. In the case
of a notice of intent to cancel the registration or change
the classification, an affected party must request a hear-
ing within 30 days of the receipt of the notice or the date
of publication, whichever is later. This 30 day period is
jurisdictional. If the request for hearing is not received by
EPA within the 30 days, the registration is cancelled or
the classification is changed. The time for responding to
the notice of intent to hold a hearing is set by the Ad-
ministrator in the notice.
Cancellation hearings are likely to involve complex issues
and numerous parties. The procedures themselves,
however, are not too dissimilar from those found in the
consolidated rules. One should note that the general prac-
tice has been to require the presentation of direct testimony
inthe form of a written verified statement, with the witness
being available for cross-examination. Though EPA is
designated as the Respondent in a proceeding brought on
a notice of intent to cancel, it has the burden of going for-
ward to present sufficient evidence to make a prima fade
case for cancellation. The burden of proof, however, is
upon the party supporting the continued registration. 44 The
procedures allow for an accelerated decision to be issued
in favor of EPA, but make no provision for issuing an ac-
celerated decision against EPA. 45
40 The procedures governing hearings under Clean Air Act §207(c) are
found at 40 C F R §85 1807
41 40 C F R §85 1807(b)
42 40 C F R §85 1807(t)
43 The procedures for hearings under F1FRA §6 are found at 40 C F R
§i64
44 See 40 C F R §164 80 For a discussion of EPA’s and the Regis-
trant’s burden of proof, see Environmental Defense Fund, Inc v
United States Environmental Protection Agency, 548 F 2d 998,
1012-18,7 ELR 20012 (D C Cir 1976), cert denied, 431 U S 925
(1977)
The statute also authorizes EPA to suspend a registra-
tion during the cancellation hearing if necessary to pro-
tect the public against an unreasonable risk of harm. 4 ’ This
proceeding is in the nature of a preliminary injunction an
is held under an expedited schedule, with 10 days being’
allowed for the initial decision. An administrative law
judge is not required to preside at these hearings, but in
practice an administrative law judge has presided.
El FIFRA §3(c): A party is also given a hearing if a regis-
tration is suspended under §3(c)(2)(B)(iv) fpr failure to
supply data to support a registration following a directive
by EPA to furnish such data. Again, EPA notifies the
registrant of its intention to suspend and the registrant must
request a hearing. 47 The issues in such a proceeding are
limited to determining whether the registrant has failed to
take the action that served as the basis for the notice of
intent to suspend and whether EPA’s determination as to
the disposition of existing stock of the pesticide is consis-
tent with the Act. 4 ’ The hearing must be concluded and
the determination made within 75 days after receipt of the
request for a hearing. 49
O Clean Water Act §402: An adjudicative hearing is also
provided on the terms of final national pollutant discharge
elimination system (NPDES) permits issued under Clean
Water Act § 402. ’° NPDES permits are issued after the af-
fected party and the public have been heard on the terms
of the permit (usually first issued as a draft permit). After
EPA has issued a final permit, an interested party can re-
quest a hearing on its terms. 5 ’ The grant of a hearing is
discretionary with EPA, and EPA may decide to deny the
hearing if there are no factual issues requiring a hearing.’
If a hearing is granted, a party is usually limited to the
evidence presented and objections made in comments on
the draft permit. The administrative record compiled dur-
ing the comment period must be received and admitted into
evidence, but a party can request that a sponsoring witness
be made available, and if none is, this can be considered
in evaluating the evidence.”
El Other Statutes: Several statutes have been amended
recently to provide for adjudicatory hearings for assess-
ment of civil penalties. These include the assessment of civil
penalties of up to $5,000 against a public water system
under Safe Drinking Water Act § 1414(g), 54 and the assess-
ment of civil penalties for violations of certain provisions
of the Comprehensive Environmental Response, Compen-
sation, and Liability Act.’ 5
46 FIFRA §6(c), 7 U S C §l36d(c), ELR STAT FIFRA 012
47 FIFRA §3(c)(2)(B)(iv), 7 U S C §i36a(c)(2XB)(iv), ELR STAT FIFRA
005
48 Id
49
50
The procedures for hearings under Clean Water Act §402 are found
at4OCFR §i247i—i249i
Si 4OCFR §12474
52 40C.FR §12475
53 40 C F R §124 85(d)(2)
54 42U SC §300g-3(g), ELR STAT 4! lOS, seeGray, TheSafe Drink-
ing Water Act Amendments of 1986 Now a Tougher Act to Follow,
16 ELR i0338. 10342 (Nov 1986)
55 CERCLA §i09, 42 U S C §9609, ELR STAT 4403! See Atkeson’.
et ai , An Annotated History of the Superfund Amendment and
Reauthorization Act of 1986 (SARA), 17 ELR i0360, 10403 (Dec
1986)
Id
45 See4OCFR §16491
------- |