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an agency official should consider in preparing an EIS, or in taking any other agency action. Such apayment is illegal and unethical. Even if the EIS was otherwise proper and the permit would have beenissued on consideration of the environmental factors under a reasonable interpretation of the NFMAand the NEPA without the payment, the court would have invalidated the permit on the basis of thepayment.V.Agency Enforcement and AdjudicationA.INVESTIGATIONDuring the rulemaking process, an investigation obtains information about a certain individual,firm, or industry to avoid issuing a rule that is arbitrary and capricious and instead is based on aconsideration of relevant factors. After final rules are issued, agencies conduct investigations tomonitor compliance.1.InspectionsAn on-site inspection may be the only way to obtain evidence to prove a regulatory violation.Sometimes, an inspection or test is used in place of a formal hearing to correct or prevent anundesirable condition. If a firm or individual refuses to cooperate with a request for an inspec-tion or for information, an agency may use a subpoena or a search warrant.2.SubpoenasThere are two basic types of subpoenas: the subpoena ad testificandum (an ordinary subpoena,compelling a witness to appear at a hearing) and the subpoena duces tecum (compelling anindividual or organization to hand over books, papers, records, or documents). Agency demandsare limited by—•The purpose of an investigation (an improper purpose is harassment).•The relevancy of the information being sought.•The specificity of the demand for testimony or documents.•The burden of the demand on the party from whom the information is sought.ENHANCING YOUR LECTURE—WHATTO DO WHEN OSHAINSPECTS YOUR COMPANYThe Occupational Safety and Health Act of 1970a requires employers to furnish a workplace free ofhazards likely to cause death or serious injury and to comply with safety and health regulations that theOccupational Safety and Health Administration (OSHA) issues. There are literally hundreds of OSHAstandards covering all aspects of the workplace: ladders, stairs, exits, noise, safety devices, and so on.To determine whether an employer is complying with the standards, an OSHA inspector can enter aworkplace at any reasonable time. The employer may refuse to permit the inspector to enter, but a
CHAPTER 43: ADMINISTRATIVE LAW 91refusal only postpones the inevitable—the inspector can obtain a search warrant and return.When an OSHA inspector arrives, he or she must show official credentials, including identificationwith a serial number and his or her photograph. Normally, an inspector will explain the purpose of avisit and give the employer a copy of any employee complaints.KEEP YOUR RECORDSAND WORKPLACEIN ORDERWhat the inspector looks at, where in the workplace he or she goes, and how long he or she is thereis up to the inspector. Typically, an inspector reviews an employer’s records of deaths, injuries, andillnesses—records that the employer is required to keep. An inspector may tour the workplace, checking