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National-Standard Co. v. Adamkus

ELR Citation: 18 ELR 21455
Nos. Nos. 87 C 5165, 87 C 5392, 685 F. Supp. 1040/(N.D. Ill., 03/23/1988)

The court holds that the Environmental Protection Agency's (EPA's) administrative warrant to search and take samples from the plaintiff's premises was properly issued, and that EPA did not exceed its statutory authority under Resource Conservation and Recovery Act (RCRA) §3007(a). Plaintiff sought to prevent EPA from obtaining the test results from an inspection of its facility pursuant to a federal magistrate's warrant. The court holds that adequate probable cause existed to support EPA's administrative warrant. The warrant application was accompanied by an affidavit based on the personal knowledge of an EPA scientist that alleged specific factors indicating that a release of hazardous substances had occurred. The court holds that plaintiff is not entitled to a hearing to challenge the factual assertions contained in the warrant application, since plaintiff has failed to show that the warrant is in any way false. Similarly, the court holds that plaintiff has no right to engage in discovery because it is extremely unlikely that plaintiff could demonstrate deliberate falsity in the affidavit supporting the warrant. The court next holds that the magistrate did not err in granting the warrant on an ex parte basis, even though EPA knew when it sought the warrant that plaintiff had filed suit to challenge the proposed inspection. The issuance of the warrant did not pose any immediate harm to the plaintiff and EPA informed the magistrate of the plaintiff's objections to the sampling visit. The court holds that EPA was acting within its statutory authority under RCRA §3007(a) when it inspected and took samples at plaintiff's facility. A narrow reading of §3007(a) that would limit sampling to sites where hazardous substances were known to have been stored would hinder EPA's broad remedial goals under RCRA. As long as EPA has probable cause to believe that the hazardous wastes are or have been stored in any place, EPA may enter and take samples. Moreover, the court notes that EPA's §3007(a) statutory authority to inspect and sample is not entirely limited to areas for which there is probable cause, since EPA has limited authority to take background samples in areas where no hazardous waste has been stored. Finally, the court holds that EPA's inspection and sampling authority under RCRA §3007(a) is not limited to solid waste management units. Rather, EPA may inspect any area in which hazardous wastes are or have been stored.

Counsel for Plaintiff
Louis M. Rundio Jr.
McDermott, Will & Emery
111 W. Monroe St., Chicago IL 60603
(312) 372-2000

Counsel for Defendants
Gail C. Ginsberg, Ass't U.S. Attorney
1500 South, Everett McKinley Dickson Bldg., 219 S. Dearborn St., Chicago IL 60604
(312) 353-5300