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SandBar 6:4, January, 2008 NPDES Permit May Allow Photography of Premises Bowman Apple Products Co., Inc. v. State Water Control Board, 2007 Va. App. LEXIS 345 (Sept. 18, 2007). *Margaret Enfinger, 2L, University of Alabama School of Law* The Virginia Court of Appeals has found that companies requesting permits to discharge into state waters may have to allow inspectors to photograph their premises. Background Bowman Apple Products uses well water in bottling its products in Virginia. The company is required to have a Virginia Pollutant Discharge Elimination System (VDPES) permit issued by the State Water Control Board to discharge wastewater into a nearby river. The permit contains an “inspection and entry provision” that allows an agent of the Virginia Department of Environmental Quality (VDEQ) to enter the property to ensure compliance with the permit. During an inspection, Bowman officials refused to let a VDEQ agent take photographs. When the time arrived for a new permit, the State Water Control Board added another requirement to the company’s permit: Bowman must allow photography during inspections. Bowman objected to this new rule and sued under the Virginia Administrative Process Act, claiming that the agency’s implementation of the new requirement was “arbitrary and capricious.” Specifically, the company objected to the overbroad nature of the new requirement, which would result in an automatic violation of the permit if the company had any restrictions on photography, even restrictions to protect the company’s proprietary interest. In its complaint, the company also alleged that the VDEQ did not follow the proper administrative procedures in instituting the requirement and noted that the rule was not included on any other permit in the state. The circuit court held that the new requirement was reasonable, although the language of the provision could result in different interpretations. The court remanded the case to the agency, directing it to amend the permit’s special requirement to only allow photography that was reasonably related to the investigation. Virginia Disagrees On appeal, relying upon the EPA’s inspection manual, the Virginia Court of Appeals reasoned that photos are a reasonable part of a thorough and accurate inspection report. They document conditions and are evidence in enforcement proceedings. In fact, they are similar to the already established permit requirement of allowing access to and copying of records. While this permit requirement of allowing photography is unique in Bowman’s permit, this does not automatically mean that it is impermissible. In fact, this special requirement became necessary for the inspections because of Bowman’s continued refusal to permit photography. Also, Bowman did not give up all privacy as the company could restrict photography that was not related to the investigation. The court of appeals subsequently upheld the circuit court’s amended permit requirement. Conclusion The Supreme Court of Virginia has held that the control of discharges into Virginia’s waters is necessary for the common good. The court of appeals seemed to think that photography is a reasonable way for an agency to control and enforce its discharge permits. In other words, photography may be a necessary part of the inspection process.
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SandBar 6:4, January, 2008

NPDES Permit May Allow Photography of Premises

Bowman Apple Products Co., Inc. v. State Water Control Board, 2007 Va. App. LEXIS 345 (Sept. 18, 2007).

Margaret Enfinger, 2L, University of Alabama School of Law

The Virginia Court of Appeals has found that companies requesting permits to discharge into state waters may have to allow inspectors to photograph their premises.

Background
Bowman Apple Products uses well water in bottling its products in Virginia. The company is required to have a Virginia Pollutant Discharge Elimination System (VDPES) permit issued by the State Water Control Board to discharge wastewater into a nearby river. The permit contains an “inspection and entry provision” that allows an agent of the Virginia Department of Environmental Quality (VDEQ) to enter the property to ensure compliance with the permit. During an inspection, Bowman officials refused to let a VDEQ agent take photographs.
When the time arrived for a new permit, the State Water Control Board added another requirement to the company’s permit: Bowman must allow photography during inspections. Bowman objected to this new rule and sued under the Virginia Administrative Process Act, claiming that the agency’s implementation of the new requirement was “arbitrary and capricious.” Specifically, the company objected to the overbroad nature of the new requirement, which would result in an automatic violation of the permit if the company had any restrictions on photography, even restrictions to protect the company’s proprietary interest. In its complaint, the company also alleged that the VDEQ did not follow the proper administrative procedures in instituting the requirement and noted that the rule was not included on any other permit in the state.
The circuit court held that the new requirement was reasonable, although the language of the provision could result in different interpretations. The court remanded the case to the agency, directing it to amend the permit’s special requirement to only allow photography that was reasonably related to the investigation.

Virginia Disagrees
On appeal, relying upon the EPA’s inspection manual, the Virginia Court of Appeals reasoned that photos are a reasonable part of a thorough and accurate inspection report. They document conditions and are evidence in enforcement proceedings. In fact, they are similar to the already established permit requirement of allowing access to and copying of records.
While this permit requirement of allowing photography is unique in Bowman’s permit, this does not automatically mean that it is impermissible. In fact, this special requirement became necessary for the inspections because of Bowman’s continued refusal to permit photography. Also, Bowman did not give up all privacy as the company could restrict photography that was not related to the investigation. The court of appeals subsequently upheld the circuit court’s amended permit requirement.

Conclusion
The Supreme Court of Virginia has held that the control of discharges into Virginia’s waters is necessary for the common good. The court of appeals seemed to think that photography is a reasonable way for an agency to control and enforce its discharge permits. In other words, photography may be a necessary part of the inspection process.