Missouri v. Independent Petrochemical Corp.

No. 83-2670 C (2) (E.D. Mo. January 6, 1986)

The court holds that Federal Rule of Civil Procedure 34 grants defendant access to land under plaintiff's control so that defendant may obtain soil samples for testing in connection with a claim for response costs pursuant to § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act. The court further holds that plaintiff may not impose conditions on its compliance with Rule 34.

Counsel for Plaintiff
Robert Lynn, Shelly Woods, David Taylor, Ass't Attorneys General
8th Floor, Broadway Office Bldg., 221 W. High St., P.O. Box 899, Jefferson City MO 65102
(314) 751-3321

Counsel for Defendant
F. William McCalpin
Lewis & Rice
611 Olive St., Suite 1400, St. Louis MO 63101
(314) 444-7600

James Knappenberger
Shaw, Howlett & Schwartz
225 S. Meramec Ave., Clayton MO 63105
(314) 725-9700

[16 ELR 20352]

Filippine, J.:

Memorandum and Order

This matter is before the Court on the motion of Syntex Agribusiness, Inc. (Agribusiness) to compel access to land. Agribusiness seeks access to land under plaintiff's control to collect said samples for use in testing in connection with this litigation. Plaintiff would allow access if Agribusiness agrees to (1) provide Syntex with a single "split" of all samples taken, (2) provide plaintiff test results, and (3) allow plaintiff's representative to accompany Agribusiness during the inspection process. Agribusiness refuses to agree to the second condition.

Agribusiness is entitled to entry, under Fed. R. Civ. P. 34, upon land controlled by plaintiff. Plaintiff cannot make its compliance with Rule 34 subject to conditions. The Court emphasizes that the discoverability of any test results or other information produced from Agribusiness's testing is not before the Court at this time.

Accordingly,

IT IS HEREBY ORDERED that the motion of Syntex Agribusiness to compel access to land be and is GRANTED and that plaintiff shall permit defendant to access land within its control for purposes of sampling soil for testing in connection with this litigation.