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National-Standard Co. v. Adamkus

Citation: 19 ELR 21144
No. No. 88-1833, 881 F.2d 352/30 ERC 1101/(7th Cir., 07/17/1989) Aff'd

The court rules that § 3007(a) of the Resource Conservation and Recovery Act (RCRA) authorizes the Environmental Protection Agency (EPA) to inspect and take samples at ahazardous waste facility, and holds that EPA's administrative search warrant issued properly. The court initially holds that EPA waived any jurisdictional challenge under the civil action transfer statute, 28 U.S.C. § 1404(a). The court also holds that the case is not moot even though EPA has obtained the samples it sought in the warrant. EPA's probable use of the results to reinspect plaintiff's facility and to monitor its compliance demonstrates a strong likelihood that subsequent conflict will recur involving the same parties. The court then rules that RCRA § 3007(a) authorizes EPA to inspect a hazardous waste facility and sample a broad range of materials that meet the generalized statutory definition of hazardous waste. When a hazardous waste facility owner does not consent to the inspection, EPA's broad inspection authority is tempered by its need to obtain an administrative search warrant based upon probable cause that violations of the statute are occurring. This is consistent with the entire statutory scheme of RCRA which 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. The court holds that RCRA § 3004(u), authorizing corrective action orders for hazardous waste releases from solid waste management units (SWMUs), does not limit EPA's ability to inspect and sample from areas other than SWMUs.

The court holds that EPA's administrative search warrant issued properly. The court holds that an EPA site inspection team member's detailed affidavit satisfies the requisite probable cause for an administrative warrant. The court holds that the warrant was not overbroad. EPA's authority to take background samples is implicit in its statutory power to detect releases of hazardous waste. Finally, the court holds that use of an ex parte proceeding to obtain the administrative warrant was proper.

[The district court's decision is published at 18 ELR 21455.]

Counsel for Plaintiff-Appellant
Louis Rundio Jr.
McDermit, Will & Emery
1111 W. Monroe St., Chicago IL 60602
(312) 372-2000

Counsel for Defendants-Appellees
Gale Ginsberg, U.S. Attorney
219 S. Deerborne, 15th Fl., Chicago IL 60604
(312) 353-5300

William Lazarus
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 23795, Washington DC
20530
(202) 633-4168

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.