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B&B Chem. Co. v. EPA

ELR Citation: 17 ELR 20404
Nos. No. 86-5008, 806 F.2d 987/25 ERC 1483/(11th Cir., 12/02/1986)

The court holds that the challenge of a cleaning compound manufacturer to an Environmental Protection Agency (EPA) administrative warrant to search the company's premises for hazardous wastes is moot. The court holds that there is no live case or controversy because the warrant has already been fully executed, and therefore a quashing of the district court's order allowing the search would not provide plaintiff with any actual, affirmative relief. The court holds that none of the three recognized exceptions to the mootness doctrine when a case is on appeal apply. The first exception, where an issue is capable of repetition yet evades review, does not apply because there is no reasonable expectation that plaintiff will be subject to a future EPA investigation pursuant to an administrative warrant. The second exception, whereby an appellant takes all the steps necessary to preserve the status quo but fails, is inapplicable because plaintiff did not appeal an earlier denial of a motion to stay the execution of the warrant, and then did not refuse to comply with the warrant once issued. The third exception, that the trial court's order has collateral legal consequences because it infringes on Fourth and Fifth Amendment rights, is also rejected because the likelihood of EPA issuing citations against plaintiff as a result of the warrant is speculative. On the constitutional issue, the court declines to follow the Third and Seventh Circuits, which have both allowed the validity of warrants executed pursuant to the Occupational Safety and Health Act to be attacked, because the Occupational Safety and Health Administration might issue citations based on the search.

Counsel for Plaintiffs-Appellants
Richard M. Goldstein
Goldstein & Tanen
2 S. Biscayne Blvd., Suite 3250, Miami FL 33131
(305) 374-3250

Counsel for Defendants-Appellees
Leon B. Keller, U.S. Attorney
155 S. Miami Ave., Miami FL 33130
(305) 350-4471

Before CLARK and EDMONDSON, Circuit Judges, and KEITH*, Circuit Judge.