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Public Serv. Co. of Ind. v. EPA

Citation: 11 ELR 20534
No. No. IP 80-332-C, 509 F. Supp. 720/15 ERC 1939/(S.D. Ind., 01/12/1981)

The district court rejects challenges raised by the owner of two stationary sources to search warrants obtained by the Environmental Protection Agency (EPA) in connection with the inspection of the sources, and upholds the taking of photographs by EPA inspectors. The court concludes that although, under § 114 of the Clean Air Act, search warrants must be obtained where the owner of a premises to be inspected does not consent to entry, the showing which must be made by the Agency in order to obtain such a warrant is less than the "probable cause" necessary for criminal search warrants. Under this more flexible standard, the court rules that the evidence presented to the magistrate who issued the contested warrants was sufficient. Nor is there a basis to plaintiff's claim that a state regulation, violations of which EPA alleged in support of its request for the warrants, was invalid because it was not properly approved by EPA in 1975. The court also finds that the warrants were not overbroad, as they designated specific areas of the facility to be inspected, and the taking of photographs by the EPA inspectors was not unreasonable. Finally, the court finds nothing improper in the inspectors' securing of documents during the inspection, as the same materials could have been obtained in any case through a simple written demand pursuant to § 114 of the Act.

Counsel for Plaintiff
Gregory A. Troxell, Ass't Counsel
Public Service Co. of Indiana, 1000 E. Main St., Plainfield IN 46168
(317) 839-9611

Peter J. Rusthoven, Bryan G. Tabler
Barnes, Hickam, Pantzer & Boyd
1313 Merchants Bank Bldg., Indianapolis IN 46204
(317) 638-1313

Counsel for Defendants
Virginia Dill McCarty, U.S. Attorney; Charles Blau, Ass't U.S. Attorney
Rm. 274, Fed. Bldg. & U.S. Cthse; 46 E. Ohio St., Indianapolis IN 46204
(317) 269-6333