Litton Industrial Automation Systems, Inc., New Britain Machine Division (Board decision, January 27, 1995)

Plain-English summary

EPA Region I charged Litton's New Britain, Connecticut facility with failing to properly mark and store polychlorinated biphenyls. Litton argued that state inspectors were not authorized EPA representatives, that EPA could not use TSCA grant funds to support the inspection, and that the inspection violated the Fourth Amendment. The Environmental Appeals Board held that Litton's plant engineer voluntarily consented to the inspection, defeating the Fourth Amendment objection, and that TSCA allowed EPA to designate state employees to conduct inspections on EPA's behalf. The Board also held that TSCA section 28 did not bar the use of federal funds to support that work, affirmed the initial decision, and assessed the $36,000 penalty.

Decision snapshot

• Cited authorities: 15 U.S.C. §§ 2610, 2615, and 2627; 40 C.F.R. §§ 22.27, 22.30, and 22.31; 40 C.F.R. Part 761.
• Outcome: The initial decision was affirmed, the inspection evidence was admitted, and a $36,000 civil penalty was assessed.
• Key point: EPA may designate state employees as federal TSCA inspectors, and voluntary consent can defeat a Fourth Amendment objection to an administrative inspection.

Full text (EPA EAB public release)

LITTON INDUSTRIAL AUTOMATION SYSTEMS, INC., 71
IN RE LITTON INDUSTRIAL AUTOMATION SYSTEMS,
INC., NEW BRITAIN MACHINE DIVISION
TSCA Appeal No. 93-4
FINAL DECISION
Decided January 27, 1995
Syllabus

In this appeal, Liton Industrial Automation Systems, Incorporated (‘Litton’) chal- lenges the Initial Decision and Order of the Presiding Officer in which a civil penalty of
$36,000.00 was assessed for violations of Section 16 of the Toxic Substances Control Act CTSCA"), 15 US.C. § 2615. This matter arises from a complaint filed by U.S. EPA, Region I in which Litton was charged with failure to properly mark and store polychlorinated biphe- nyls (*PCBs") at its New Britain, Connecticut facility

Litton contends that the Presiding Officer erred when he admitted into the record evidence obtained from the Litton plant during a TSCA inspection. Specifically, Litton claims that the State employees, who conducted the TSCA inspection on behalf of Region I, were not proper EPA representatives under Section 11 of TSCA, 15 U.S.C, 2610. In addition, Litton argues that the search was invalid under Section 28 of TSCA, 15 U.S.C. 2627, on the grounds that EPA did not have the authority to provide federal funds to the State for the purpose of conducting the subject TSCA inspection on behalf of EPA. Finally, Litton contends the search also violated the Fourth Amendment of the U.S. Constitution,

Held: Regardless of Liton’s statutory arguments, Litton’s voluntary consent to a TSCA inspection by State employees eliminated any Fourth Amendment objection Litton may have had to the admission of the evidence at the administrative hearing. Moreover, Litton’s statu- tory arguments are without merit, First, the plain language and judicial interpretation of TSCA, Section 11(a) clearly authorize the Administrator to “duly designate" State employees to serve as TSCA inspectors on behalf of EPA. Second, Litton’s argument that Section 28 bars the use of federal funds to support TSCA inspections by State employees is not supported by the language or legislative history of Section 28.

Before Environmental Appeals Judges Nancy B. Firestone,
Ronald L. McCallum, and Edward E. Reich.

Opinion of the Board by Judge Firestone:

Litton Industrial Automation Systems, Incorporated (“Litton”) has appealed from an Initial Decision and Order issued by Administrative Law Judge Frank W. Vanderheyden (“Presiding Officer”), in which the

VOLUME 5

672 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Presiding Officer assessed a civil penalty of $36,000.00 against Litton for violations of Section 16 of the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2615. The initial decision arises out of an action brought by the U.S. Environmental Protection Agency (“EPA”), Region I in which Litton was charged with failing to properly mark and store polychlori- nated biphenyls (“PCBs”) at its New Britain, Connecticut plant.!

Litton’s sole contention on appeal is that the Presiding Officer erred in admitting into the record the evidence taken from the Litton facility during a 1988 TSCA inspection. More specifically, Litton claims that the State employees who conducted the 1988 TSCA inspection on behalf of Region I, were not proper EPA representatives under TSCA, Section 11, 15 U.S.C. § 2610,? and thus none of the evidence obtained from that inspection should have been considered at the hearing.

The Board has reviewed the record herein. For the reasons set forth below, the Initial Decision and Order is affirmed

I. FACTUAL AND PROCEDURAL BACKGROUND

The sole dispute in this appeal centers on the validity of the in- spection that gave rise to the enforcement action. In that connection, the facts surrounding the inspection, set forth below, are not con- tested.

In September 1988, two Connecticut Department of Environmen- tal Protection (“DEP,” “State") field inspectors arrived at Litton’s New Britain facility to conduct a TSCA inspection. Upon arrival, they were met by Litton plant engineer William Lindsay. Both DEP employees presented their credentials. In addition, one of the inspectors, Frank Bartolomeo, presented an EPA form stating that he was a “duly desig- nated representative” of the EPA authorized to conduct TSCA inspec- tions under Section 11 of TSCA. The Litton plant engineer was then presented with a TSCA Notice of Inspection which provided that the

“in particular Litton was charged with numerous failures to mark and store PCBs pursuant to the requirements contained in 40 C.E.R. Part 761.

*In pertinent pant, TSCA § 11(a) provides:

(a) IN GENERAL—For purposes of administering this Act, the Administrator, and any duly designated representative of the Ad- ministrator, may inspect any establishment, facility, or other pre- mises in which chemical substances, mixtures, or products sub- ject to title IV are manufactured, processed, stored, or held be- fore or after theie distribution in commerce

15 USC. § 26100).

VOLUME 5

LITTON INDUSTRIAL AUTOMATION SYSTEMS, INC., 673
inspection would be limited to examining Litton’s compliance with the applicable TSCA-PCB regulations. The plant engincer, raising no ob- jection, signed the notice form and the inspection commenced.

In May 1989, EPA filed a nine-count complaint against Litton based upon the evidence obtained from the September 1988 inspection. In its answer Litton denied or stated it lacked knowledge as to each allega- tion and asserted several affirmative defenses, including: (1) the per- sons who inspected the New Britain facility were not proper represen- tatives of the EPA under Section 11 of TSCA; thus any evidence ob- tained from the inspection was done so illegally; and (2) the consent given by the plant engineer was invalid because it was based on his misunderstanding of the inspectors’ authorization to conduct the TSCA inspection

Thereafter, on February 12, 1990, Litton filed a Motion in Limine seeking to suppress the evidence obtained by the DEP inspectors on the grounds that it was obtained in violation of Section 11 of TSCA and therefore was inadmissible at the hearing. Litton further argued that the search violated the Fourth Amendment of the United States Consti- tution on the grounds that it was a warrantless search conducted by unauthorized inspectors

After a number of oppositions and responses were filed, the Pre- siding Officer, on October 25, 1990, issued a twenty-page order deny- ing Litton’s motion, thereby allowing Region I to rely upon the evi- dence obtained by the DEP inspectors. In the order, the Presiding Officer determined, based upon the plain meaning and legislative his- tory of Section 11 of TSCA, that EPA has broad authority under Section 11 to designate State employees as EPA representatives for the pur- pose of conducting inspections. As such, the Presiding Officer also found Litton’s Fourth Amendment argument legally insufficient in that he concluded the September 1988 inspection was, in fact, authorized. Accordingly, Litton’s affirmative defenses relating to Section 11 and the Fourth Amendment were struck. The matter was later set for a hearing for January 29, 1991.

On Tuesday, January 29, 1991, Litton and Region I appeared be- fore the Presiding Officer for a one-day hearing on this matter. Each party called three witnesses. Among Region I's witnesses were Mr. Bartolomeo and Thomas RisCassi, the Connecticut DEP official who accompanied Mr. Bartolomeo on the Litton inspection.

William Lindsay, the Litton plant engineer did not testify at this hearing

VOLUME 5

674 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

In September 1993, the Presiding Officer filed an Initial Decision and Order finding Litton liable as to all nine counts alleged in the complaint. As noted, a civil penalty of $36,000.00 was assessed. In October 1993, Litton filed a timely Notice of Appeal and an Appellate Brief pursuant to 40 C.FR § 22.30.4

Il. DISCUSSION

On appeal, Litton argues that the September 1988 inspection of its New Britain facility was unauthorized because Section 11 of TSCA does not allow EPA to designate State employees to conduct TSCA inspections and thus, the evidence obtained during the September 1988 inspection was obtained in violation of TSCA and the Fourth Amendment. Accordingly, Litton contends the evidence should not have been admitted into the record. While the Board will address Litton’s TSCA arguments later in its opinion, it will first address the threshold issue of whether Litton’s actions in consenting to the search resulted in a waiver of Litton’s Fourth Amendment objections to the admissibility of the evidence. A. Consent

It is well settled that a warrantless search conducted with volun- tary consent does not violate the Fourth Amendment.’ Schneckloth v. Bustamonte, 412 U.S, 218, 219 (1973).° The constitutional question of whether the consent to a search was in fact “voluntary” or was the product of duress or trickery, express or implied, is a question of fact to be determined from “the totality of all the circumstances.” Schneckloth, 412 U.S. at 227.

“The Board also granted the request of Lazarus, Incorporated (“Lazarus”) to file an Amicus Curiebrief. Lazarus, which filed its brief in June 1994, is presently a respondent in an administrative penalty proceeding where it has raised the same Section 11(a) issue as that raised by Litton in this appeal.

*The Fourth Amendment provides:

The 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 Warrants shall issue, but upon prob- able cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. Amend. IV.

SItis * * well setled that one of the specifically established exceptions to the [Fourth Amend- ment] requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth, 412 US. at 219 (citations omitted).

VOLUME 5

LITTON INDUSTRIAL AUTOMATION SYSTEMS, INC., 675

Here, an examination of the totality of the circumstances leaves no doubt that Litton voluntarily consented to the September 1988 in- spection. It is not disputed that the plant engineer, Mr. Lindsay, signed the notice form which identified the purpose of the inspection. In- deed, he even brought the inspectors to Litton’s inventory of PCB equipment before the inspection began. Complainant’s Response to Respondent's Motion in Limine at 14. Moreover, there is nothing in the record to suggest any hint of duress or trickery on the part of the inspectors. The inspectors clearly identified themselves and the pur- pose of the inspection. Litton has not provided any evidence to show that the inspectors gained entry to the facility by way of a ruse, or that they lied about who they were.’

Under these circumstances, Litton cannot successfully contest the validity of the inspection, nor the admission of the evidence gathered at that inspection. So long as the plant engineer’s consent to a search by State employees was voluntary, Litton’s Fourth Amendment rights were not violated. Litton’s contention that the State agents were not properly authorized to conduct the search under TSCA, Section 11 therefore misses the mark.* For the purpose of Litton’s Fourth Amend- ment argument, it is not significant whether the agents were “duly designated” inspectors under TSCA.

In this context, the case at bar is strikingly similar to Jn re Electric Service Company, TSCA Appeal No. 82-2 (CJO, January 7, 1985). In Electric Service Company, the appellant challenged the admission into the administrative record of evidence obtained from a TSCA inspection conducted at the request of EPA by two State officials who did not present a proper notice of inspection and were not properly autho- rized under the statute. The Chief Judicial Officer, in upholding the

The September 1988 inspection is in marked contrast to the example of government trickery which is discussed at length in United States v. Bosse, 898 F.2d 113 (9th Cir. 1990), In Bosse, a State official went to the defendant's home to inspect the premises as part of the application process for a firearms license. A United States Alcohol, Tobacco and Firearms (“ATF”) agent accompanied the State official on the search. The State official and the ATF agent, who went along for the sole pur- pose of observing things of interest to ATE, deliberately failed to identify the ATF agent. Several cays later, the ATF agent obtained a search warrant based upon his observations and proceeded to search the defendant's home.

‘The Court of Appeals held that the officers’ silence amounted to a deliberate misrepresenta- tion of the ATF agent's reason for being at the defendant's home. Finding a Fourth Amendment Violation, the Court said, “A ruse entry when the suspect is informed that the person seeking entry is a government agent but is misinformed as to the purpose for which the agent seeks entry cannot be justified by consent.” Bosse, 898 F.2d at 115 (citations omitted),

As we discuss in greater detail infra, Section B, the Presiding Officer nonetheless was correct in concluding that the Agency may properly rely on State inspectors to perform TSCA inspections.

VOLUME 5

676 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
admissibility of the evidence obtained from the search, held that the appellant had consented to the inspection when the appellant's sales manager gave the inspectors permission to enter the facility and as- sisted the inspectors as they conducted the inspection. The sales manager's actions, the Chief Judicial Officer concluded, operated as a waiver of appellant's right to challenge the admission of the evidence. See id. at 9. Therefore, the Chief Judicial Officer held the evidence was properly admitted into the record. The Board sees no reason why the same result should not apply here, where the notice procedures were followed and at least one inspector presented his EPA designation. For all the above-mentioned reasons, the Board concludes that the evidence obtained from the September 1988 inspection by State employees was properly admitted and considered at the hearing.’ B. TSCA In view of our conclusions regarding Litton’s consent, it is not necessary to consider Litton's statutory arguments. However, in light of the substantial analysis given by both the Region and Litton to the question of EPA’s statutory authority to designate State employees as TSCA inspectors under Section 11 of TSCA, we choose to address those arguments as well. In brief, we find for the reasons set forth below that the search conducted by the Connecticut DEP employees was properly authorized under TSCA. As noted above, Section 11(a) of TSCA provides in pertinent part Even if this search amounted to an invalid warrantless search it is not a certainty that the Fourth Amendment would require the evidence to be suppressed. The exclusionary rule was cre: ated by the federal courts to deter Fourth Amendment violations in criminal cases and has not been extended to all administrative proceedings. In re Boliden-Metech, Inc., TSCA Appeal No. 89-3, at 8, 15 (CJO, November 20, 1990. ‘The courts have applied a balancing test in each case, weighing the deterrent effect of suppressing unlawfully obtained evidence against the social cost of depriving the government of the use of the evidence. *** the Supreme Court has stated in dictum that the social cost of applying the exclusionary rule is unacceptably high in situations involving continuing environmental violations, It states, for example that “[plresumably no one would argue that the exclusionary rule should be invoked to prevent an agency from ordering corrective action at a leaking hazardous ‘waste dump ifthe evidence underlying the order had been im- properly obtained ***." Id. Citations omitted.) VOLUME 5

LITTON INDUSTRIAL AUTOMATION SYSTEMS, INC., 677

For purposes of administering this Act, the Administra-

tor, and any duly designated representative of the Ad-

ministrator, may inspect any establishment, facility, or

other premises in which chemical substances, mixtures,

or products subject to title IV are manufactured, pro-

cessed, stored or held * * *.
15 U.S.C. § 2610(a) (emphasis added). Although TSCA does not define “duly designated representative,” we conclude based on the plain lan- guage of TSCA that EPA may properly designate State employees to serve as “duly designated representatives.”

Section 11(a) plainly authorizes the Administrator or “any” person so designated by the Administrator to conduct TSCA inspections for the purpose of carrying out the goals of the statute. The language of Section 11(a) is broad, unrestrictive and unambiguous. As the Presid- ing Officer noted, the word “any” defines the scope of the Administrator's authority. Order, slip op. at 9. “Any” suggests an unen- cumbered choice to select from a particular pool. Id. The Section’s only restriction is that the party be “duly designated.” Id. at 10. Thus, any person who has received a proper designation from EPA can become a “duly designated” TSCA inspector. Accordingly, Section 11(a) by its terms provides EPA with ample authority to designate State officers to conduct TSCA inspections.”

Although judicial interpretation of this section is sparse, the one case construing Section 11(a) supports EPA’s view. In Aluminum Com- pany of America v. DuBois, No. C80-1178V (W.D.Wash. June 11, 1981) (“Alcoa-DuBois’), Alcoa brought an action to bar private contractors engaged by EPA from conducting a TSCA inspection at Alcoa's Vancouver, Washington plant. In granting the Agency's motion for sum- mary judgment, the court held that “the phrase ‘duly designated rep- resentative’ means more than just officers and employees of EPA and includes duly designated private contractors.” Alcoa-DuBois, slip op. at 6. We believe that if Section 11(a) authorizes the use of private contractors, it certainly authorizes the designation of State inspectors."”

"In this connection, we note that the legislative history regarding Section 11(a) does not dis- cuss the phrase “duly designated representative.” The language used in the original House and Sen- ate bills is, however, very similar to the language used in the statute: * ** * the Administrator or any representative of the Administrator duly designated by the Administrator ***." H.R, 14032 94th Cong,, 2d Sess., 297 (1976); S. 3149 94th Cong, 2d Sess., 59 (1976). Thus, there is nothing in the legislative history to suggest that EPA is limited in any way in designating State officials as TSCA inspector.

2 We note in this regard that Ltton’s reliance on the two Clean Air Act CAA") cases dealing with EPA's use of private contractors is not relevant (0 the present case. The holdings in United Continued

VOLUME 5

678 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Despite the plain language and judicial interpretation of Section 11(a), Litton makes two arguments to support its claim that State offi- cials may not serve as TSCA inspectors. First, Litton argues that be- cause EPA does not have the authority in TSCA that it has in other environmental statutes to either “delegate” or “authorize” State offi- cials to carry out the Agency's TSCA obligations, the “designation” of State inspectors is unlawful as an impermissible “delegation.” Second, Litton argues that Section 28(a) of TSCA, 15 U.S.C. § 2627(a), precludes EPA from giving to States any federal funds for the purpose of con- ducting inspections that only EPA employees can lawfully perform under TSCA. As discussed below, Litton’s arguments are based on the erroneous assumption that EPA's “designation” of State officials to conduct TSCA inspections is tantamount to an improper federal “del- egation” of a State TSCA program and an impermissible relinquish- ment of EPA's TSCA inspection authority

Litton correctly notes that in contrast to many other environmental laws, TSCA does not give EPA the authority to “delegate” or “approve” a State toxic chemical control program that will operate in lieu of an EPA program. Thus, States cannot be given primary responsibility over the federal TSCA program, as States with “approved” or “delegated” programs do under the Clean Air Act (“CAA”), the Clean Water Act (“CWA”), and the Resource Conservation and Recovery Act (‘RCRA”).?

However, contrary to Litton’s assertions, EPA's authority to “desig- nate” State employees to serve as TSCA inspectors under Section 11 of TSCA cannot be construed in any way as a “delegation,” or an “autho- States v. Stauffer Chemical Company, 684 F.2d 1174 (6th Cit. 1982), aff'd 464 US. 165 (1984) and Bunker Hill Company v. U.S. EPA, 658 F.2d 1280 (9th Cir. 1981) rest on each court’ interpretation of the lengthy legislative history of Section 114 of the CAA. Whether Section 114 of the CAA does or does not permit private contractors to serve as CAA inspectors has no bearing on EPA's TSCA in- spection authority, given the plain meaning and judicial interpretation of Section 11(a) of TSCA.

“Under Section 111(©) of CAA, EPA may delegate its authority to implement and enforce federal new source performance standards, See 42 U.S.C. 7411(c). Accordingly, under Section 114(b), CAA permits a formal delegation of federal inspection authority ifthe State's procedures are deemed adequate, See 42 USC. § 74140),

Under CWA, a State desiring to administer its own permit program for discharges into water in its jurisdiction may submit for EPA approval a plan for establishing and administering such a pro- gram under State law. See 33 U.S.C, 1342(b). IF EPA finds that the State's laws require as much as ‘CWA in enforcement and monitoring, the State is authorized to apply State enforcement procedures for point sources in its jurisdiction. See 33 U.S.C. § 1318(b).

Under RCRA, a State upon EPA authorization may establish and enforce a hazardous waste program, provided itis equivalent to the EPA program. See 42 U.S.C. 6926(b). IFthe State program is authorized, the State, acting in lieu of EPA, may inspect premises for the purpose of the Act. Sce 42 US.C. § 6927.

VOLUME 5

LITTON INDUSTRIAL AUTOMATION SYSTEMS, INC., 679
rization” of a State program. The “designation” of State inspectors has not authorized the State to act “in lieu of,” or “in the place of” EPA. To the contrary, when EPA designates a State employee to serve as a TSCA inspector, the State employee is not acting for the State, but rather for EPA. This designation is simply intended to provide assistance to EPA as it carries out its enforcement obligations under the Act. EPA never relinquishes federal authority when it designates State inspectors un- der TSCA. The Agency retains ultimate control and discretion with respect to any enforcement decision arising from such inspections Accordingly, this “designation” of State inspectors to conduct federal TSCA inspections is perfectly consistent with the retention of EPA’s authority under the Act. For these reasons, Litton’s contention that the designation of State employees is an unlawful delegation of EPA au- thority must fail.

Likewise, Litton’s argument regarding Section 28 of TSCA must fail. Contrary to Litton’s contention, Section 28 does not limit EPA’s authority under Section 11(a). Litton’s argument that the federal funds provided to the States under Section 28 and used for the subject in- spection could not be used for anything other than the support of a Connecticut program separate and apart from EPA's TSCA program is without merit. First, as Region I correctly notes, the language of Sec- tion 28 makes clear that federal funds can be used for activities that “complement” EPA’s efforts, as well as for separate State efforts. In particular, Section 28 states:

(a) IN GENERAL.—For the purpose of complementing

(but not reducing) the authority of, or actions taken by,

the Administrator under this Act, the Administrator may

make grants to States for the establishment and opera-

tion of programs to prevent or eliminate unreasonable

risks within the States to health or the environment

which are associated with a chemical substance or mix-

ture and with respect to which the Administrator is

unable or is not likely to take action under this Act for

their prevention or elimination.
15 U.S.C. § 2627(a). Region I argues that Congress’ use of the word “complement” reveals its intent concerning the grant program. In par- ticular, while not defined in TSCA, “complement” is commonly defined as “something that completes, makes up a whole, or brings to perfec- tion.” Webster’s II New Riverside University Dictionary 290 (1994) Region I, therefore, argues that by its plain terms, Section 28 allows EPA to utilize State employees to conduct inspections that will enable EPA to fulfill the overall goals of the Act.

VOLUME 5

680 ENVIRONMENTAL ADMINISTRATIVE DECISIONS,

Second, there is nothing in the legislative history that suggests Region I's interpretation of Section 28 is erroneous. Litton states that the legislative history accompanying Section 28 indicates that EPA may not use Section 28 funds for the purpose of surrendering any of its enforcement responsibilities under TSCA. In support of its assertion, Litton relies on statements by Representative Maguire of New Jersey, the sponsor of the Section 28 amendment. In particular, Representative Maguire remarked:

Concern has been expressed that this provision might

represent a “foot in the door”? whereby the Environ-

mental Protection Agency might take advantage of the

grant program to pass some of its testing, monitoring ,

and enforcement responsibilities on to State agencies.

This amendment has been carefully drafted to explic-

itly eliminate such a possibility.”
122 Cong. Rec. 27,201 (1976). Contrary to Litton’s assertions, however, other statements by Representative Maguire make it clear that federal money could be provided to the States to assist EPA in carrying out EPA’s responsibilities under the statute:

The grant money is earmarked for use in ways which

will complement the activities already underway or

being planned by EPA for the implementation of this

Act and for activities which the Administrator is unable

to undertake, because of inadequate resources or other

higher priorities. It is not intended to and will not re-

place, EPA’s authority to require reporting, testing, or

any other of the authorities given in this act.
Id. (Emphasis added.) Thus, while EPA cannot use Section 28 funds to relinquish its responsibilities to the States, the legislative history makes it clear that EPA may give federal monies to States for the purpose of helping EPA fulfill responsibilities that by virtue of “higher priorities,” EPA would not be able to undertake. We do not read the legislative history as in any way limiting EPA’s authority to designate State em- ployees to serve as EPA inspectors.

As noted above, Section 28 allows EPA to give grants to States for the purpose of supplementing EPA’s program. As such, Section 28 con- templates that grant money will be available to conduct inspections that promote EPA’s goals with respect to the PCB program, as was done here. For these reasons, Litton’s Section 28 argument does not VOLUME 5

LITTON INDUSTRIAL AUTOMATION SYSTEMS, INC., 681
provide us with any basis for setting aside the Presiding Officer's decision."

IM. CONCLUSION

In view of the foregoing, the Board concludes that the Presiding Officer properly admitted and considered the evidence gathered by the Connecticut State employees from the September 1988 TSCA in- spection of Litton's New Britain, Connecticut facility.

Therefore, the Initial Decision and Order is affirmed. Litton is as- sessed a civil penalty of $36,000.00. Payment of the full amount of the penalty shall be made by forwarding a cashier's or certified check payable to the Treasurer of the United States, to the following address within sixty (60) days of the date of service of this decision:

EPA—Region I
Regional Hearing Clerk
P.O. Box 360903M
Pittsburgh, PA 15251

So ordered.

Sat this juncture, the Board should note the Request of Amicus Curiaeto File Supplement to Brief in Support of Appellant, filed by Amicus Curiae Lazarus on December 16, 1994. While the Board is denying Lazarus’ request, it will take official notice of the September 1994 U.S. General Accounting Office report entitled “Toxie Substance Control Act - Legislative Changes Could Make the Act More Effective." The report states that Congress was greatly concemed about federal author- ity in TSCA, particularly in the area of inspections where confidential business information CBI") could be gathered. However, nothing in the report suggests that Congress did not authorize EPA to designate State inspectors to work on EPA's behalf under TSCA.

Additionally, the report notes that State governments are not entitled to access to CBI obtained by EPA under TSCA. But as we mentioned supra, when EPA designates a State employee to be a TSCA inspector, the State employee becomes an EPA agent collecting the evidence for EPA, not the State, and is thus bound by any limitations imposed upon EPA employees in handling any CBI data.

VOLUME 5