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Bunker Ltd. Partnership v. United States

ELR Citation: 16 ELR 20757
Nos. No. 85-3133, 23 ERC 2041/(D. Idaho, 12/06/1985)

The court holds that in an investigation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), EPA is not authorized to examine all documents at a hazardous waste site to determine which are subject to a previously issued inspection warrant. Both the current and prior owners of the site challenged the scope of EPA's authority under CERCLA §104(e) to inspect all documents at the site. The court first holds that it has jurisdiction to consider the motions for protective orders. Although an appeal of this court's order upholding the validity of the inspection warrant is pending in the Ninth Circuit Court of Appeals, the issue of the scope of EPA's authority under the warrant is not the subject of that appeal. The court rules that an administrative inspection warrant is subject to the rules applicable to an administrative subpoena, rather than the applicable to a criminal search warrant or a request for production of documents. Thus the owner of the site, not EPA, is responsible for examining its documents to determine which are subject to the warrant. CERCLA §104(e), authorizing EPA inspections, clearly suggests that the company rather than EPA determines which documents are responsive to the warrant. Moreover, the Supreme Court has suggested that an administrative inspection based upon a warrant is analogous to that compelled pursuant to an administrative subpoena. Lastly, an administrative inspection in CERCLA civil action does not justify the intrusive investigative procedures of a criminal search. Finally, the court denies the motion to internene of the site's prior owner, holding that its interests are sufficiently represented by the current owner.

Counsel for Plaintiff
Wayne B. Slaughter, Edwin A. Apel
Hawley, Troxell, Ennis & Hawley
Seventh Fl., One Capital Ctr., P.O. Box 1617, Boise ID 83701
(208) 344-6000

Counsel for Defendant
Jeffrey W. Ring, Ass't U.S. Attorney
Rm. 693 Federal Bldg., Box 037, 550 W. Fort St., Boise ID 83724
(208) 334-1211