Boliden Metech, Inc. v. US

Decision Date20 September 1988
Docket NumberC.A. No. 88-0081 L.
Citation695 F. Supp. 77
PartiesBOLIDEN METECH, INC., Plaintiff, v. UNITED STATES of America, U.S. Environmental Protection Agency, Lee Thomas, Administrator, and Michael Deland, Administrator for Region I, Defendants.
CourtU.S. District Court — District of Rhode Island

John G. Coffey, Jr., Charles J. McGovern, James H. Falk, Bradford A. Penney, Providence, R.I., for plaintiff.

Lincoln Almond, U.S. Atty., and Everett Sammartino, Asst. U.S. Atty., Providence, R.I., Ruth McQuade, Atty., U.S. Dept. of Justice, Land & Natural Resources Div., Environmental Enforcement Section, Thomas R. Lotterman, Atty., Environmental Defense Section, Washington, D.C., George R. Ciampa, Asst. Regional Counsel, E.P.A., Boston, Mass., for defendants.

OPINION AND ORDER

LAGUEUX, District Judge.

This matter is before the Court on defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, and on the cross motions for summary judgment on Count I filed by both sides.

An administrative search pursuant to an ex parte warrant, conducted by the Environmental Protection Agency ("EPA"), of plaintiff's premises, under the Toxic Substances Control Act ("TSCA"), gave rise to this action for injunctive and declaratory relief. At issue is whether the EPA has authority to obtain a warrant from a federal judicial officer under TSCA, and whether this Court should exercise jurisdiction in a collateral action to suppress evidence while there is an ongoing administrative proceeding.

This Court holds that TSCA implicitly grants the EPA authority to seek administrative warrants in order to fulfill its inspection duties. In addition, the Court refuses to exercise jurisdiction on prudential grounds of the other issues raised in this case.

FACTS

Plaintiff, Boliden Metech, Inc. ("Boliden"), operates a precious metals reclamation facility in Providence, Rhode Island. Workers at this facility shred scrap computer parts in order to salvage valuable component metals. The EPA is concerned that amounts of polychlorinated biphenyls ("PCBs") may be escaping from the Boliden facility into the ground and into the nearby Providence River.

On April 25, 1986, an employee of the Rhode Island Department of Environmental Management ("DEM") obtained samples of material from Boliden's Providence facility. The DEM search occurred without Boliden's consent. On July 27, 1987, the EPA issued an administrative complaint alleging that Boliden was violating the rules and regulations governing the storage and disposal of PCBs under the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. An administrative proceeding, captioned In the Matter of Boliden Metech, Inc., TSCA-I-87-1097, is presently pending before an Administrative Law Judge ("ALJ"). The administrative proceeding is a civil action for assessment of a penalty pursuant to § 16(a) of TSCA, 15 U.S.C. § 2615(a).

On January 8, 1988, Boliden filed a motion in the administrative proceeding seeking to exclude evidence derived from the April 25, 1986 DEM inspection. Boliden argued that evidence obtained by the DEM in the absence of an administrative search warrant violated Boliden's fourth amendment rights and thus should be excluded from the proceeding.

Subsequently, on January 28, 1988, the EPA made an ex parte application before a magistrate in the United States District Court for the District of Rhode Island seeking an administrative warrant to enter and inspect the Boliden facility pursuant to TSCA § 11, 15 U.S.C. § 2610. Previously, EPA agents had sought entry to examine the premises. Boliden employees refused to allow the EPA agents to conduct certain sampling tests. Consequently, the agents left and sought an inspection warrant from the Magistrate. The warrant was issued and subsequently executed by agents of the EPA on January 29, 1988.

On February 5, 1988, Boliden instituted the present action. In its amended complaint, Boliden sought a temporary restraining order, a preliminary injunction, a permanent injunction, and certain declaratory relief. The thrust of Boliden's action is to have the searches conducted by both the DEM and the EPA declared illegal and to have the Court direct the EPA to return all materials obtained during these inspections. Furthermore, Boliden seeks a declaration that the EPA lacks statutory authority to obtain administrative warrants under TSCA, and an injunction prohibiting the EPA from exercising warrant authority under TSCA in the future.

Specifically, Boliden filed a three count amended complaint. In Count I, Boliden claims that the EPA violated TSCA by obtaining an ex parte warrant. Boliden alleges that it is "under the continuing threat of EPA penalties any time the EPA seeks and obtains a warrant with respect to any Boliden facilities." Boliden's Amended Complaint at p. 6. In Count II, Boliden alleges that the EPA violated its fourth amendment rights by conducting an illegal search and seizure and by obtaining and executing an ex parte warrant based upon a previous illegal search. Finally, in Count III, Boliden alleges that the ex parte warrant of January 28, 1988 was flawed because the EPA did not inform the Magistrate of the pending administrative proceeding against Boliden, and Boliden's pending motion to suppress in that action.

This Court denied Boliden's motion for a temporary restraining order on February 9, 1988. Then on February 23, 1988, this Court denied Boliden's application for a preliminary injunction, but ordered that any future EPA warrant applications concerning Boliden would have to be made directly to this Court and not to the Magistrate.

On March 9, 1988, the EPA made an application for an inspection warrant. This Court heard both parties in chambers. After determining that Boliden would not consent to an inspection, the Court issued a warrant allowing the EPA to enter and inspect Boliden's Providence facility.

Even before the hearing on preliminary injunction, the EPA filed a motion to dismiss Boliden's complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) respectively. Boliden then filed a motion for summary judgment on Count I pursuant to Rule 56 of the Federal Rules of Civil Procedure. Not to be outdone, defendants followed suit with their own cross motion for summary judgment on Count I. On June 21, 1988, this Court heard oral argument on all these motions and took the case under advisement. The matter is now in order for decision.

TSCA PERMITS THE EPA TO OBTAIN EX PARTE ADMINISTRATIVE SEARCH WARRANTS

TSCA implicitly authorizes the EPA to obtain search warrants for the purpose of fulfilling its inspection duties under the Act. The ability to obtain search warrants furthers the policy of TSCA and follows from its language. Moreover, courts addressing the warrant authority issue under similar statutes have held that the statutes enable federal administrative agencies to seek ex parte warrants. Therefore, Boliden's motion for summary judgment as to Count I must be denied and defendants' cross motion for summary judgment on Count I must be granted.

A. Warrant Authority

Under the "inspections and subpoenas" section of TSCA, representatives of the EPA "may inspect any establishment, facility, or other premises in which chemical substances or mixtures are manufactured, processed, stored, or held before or after their distribution." 15 U.S.C. § 2610. § 2610 further provides that an inspection may be made "upon the presentation of appropriate credentials and of a written notice to the owner...." Id. While this inspection section does not dictate what steps the EPA is to take to gain entry to a facility if access is denied, it seems logical to believe that Congress intended to authorize the EPA to take reasonable steps, such as obtaining a warrant, to fulfill its inspection obligation.1 Obtaining an inspection warrant is in keeping with the Congressional policy underlying TSCA which seeks to provide adequate authority to regulate hazardous chemicals.2 In short, by granting the EPA the authority to enter and inspect under 15 U.S.C. § 2610, Congress implicitly gave that body the power to use reasonable means, such as an administrative search warrant, to carry out the inspections.

Where, as here, Congress has given the EPA the right of entry, it would frustrate the will of Congress to deny the EPA the ability to obtain a warrant to compel entry, if the targetted owner refuses to consent. In See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the Supreme Court held that "administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure." Id. at 545, 87 S.Ct. at 1740. Thus, a statute which authorizes nonconsensual, warrantless entry would be unconstitutional. Since Congress promulgated TSCA ten years after the Supreme Court's decision in See, it is reasonable to assume that in granting "administrative entry," Congress necessarily granted the EPA the ability to compel access "through prosecution or physical force within the framework of a warrant procedure."

Boliden argues that 15 U.S.C. §§ 2614 and 2616 provide an exclusive remedy when entry is refused under § 2610 of Title 15. These sections provide in relevant part as follows:

It shall be unlawful for any person to —

(4) fail or refuse to permit entry or inspection as required by § 2610 of this title.

15 U.S.C. § 2614.

(a) Specific enforcement.—(1) The district courts of the United States shall have jurisdiction over civil actions to —
(A) restrain any violation of § 2614 of this title, ...

15 U.S.C. § 2616.

This Court does not find that §§ 2614 and 2616 of Title 15 were intended by Congress to provide an exclusive remedy for...

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