Koppers Industries, Inc. v. U.S. E.P.A., 89-15845
| Decision Date | 07 May 1990 |
| Docket Number | No. 89-15845,89-15845 |
| Citation | 902 F.2d 756 |
| Parties | , 20 Envtl. L. Rep. 20,929 KOPPERS INDUSTRIES, INC., Plaintiff-Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Chester R. Babst, III, Babst, Calland, Clements & Zomnir, Pittsburgh, Pa., for plaintiff-appellant.
Ellen J. Durkee, Appellate Section, Lands & Natural Resources Div., Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before WRIGHT, HUG and LEAVY, Circuit Judges.
Koppers Industries, Inc. ("Koppers") appeals from the district court's order denying its motion to quash and suppress all evidence arising from the execution of an administrative warrant issued to the Environmental Protection Agency (EPA) pursuant to section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA" or "Superfund"), 42 U.S.C. Sec. 9604, as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"). Koppers alleges that the warrant and entry were not authorized under CERCLA and therefore violated its fourth amendment right to be free from unreasonable search and seizures. We affirm.
Koppers operates a wood-treating plant in Oroville, California. In the early 1980's, portions of Koppers' property were found to have releases of certain pollutants into the soil and groundwater. Pursuant to its authority under CERCLA, the EPA investigated the releases and on September 21, 1984, added the Koppers site to the National Priorities List for cleanup. 1
On April 25, 1986, Koppers and the EPA executed an Administrative Order on Consent No. 86-04 ("Consent Order") in which Koppers agreed to carry out a Remedial Investigation/Feasibility Study ("RI/FS") at the plant with EPA oversite. The purpose of an RI/FS is "to determine the nature and extent of the threat presented by the release[s]" and to develop alternatives to respond to those releases. 40 C.F.R. Sec. 300.68(d).
Starting in late 1986, the EPA informed Koppers that it was failing to sufficiently address in its RI/FS releases of air contaminants associated with its ongoing wood-treating processes. 2 The EPA undertook an investigation of the air emissions after Koppers refused to conduct the requested air emissions studies, arguing that the EPA air monitoring program was not contemplated by the Work Plan for the RI/FS or the Consent Order. Koppers allowed On February 14, 1989, the EPA applied for and obtained an ex parte administrative access warrant from a federal magistrate. The warrant was granted on the basis the EPA had "reason to believe that there has been a release of hazardous substances from the [Koppers] facility into the environment" and that air and water sampling was "necessary and appropriate in order to determine [the] nature and extent of the release, and the need for CERCLA response action." On February 14, 1989, the EPA entered the Koppers site pursuant to the warrant and completed its air sampling program.
the EPA to collect air emission samples at the site from October 18 through October 22, 1988, and agreed to another round of air emissions sampling to commence the week of February 13, 1989. However, on February 10, 1989, Koppers informed the EPA that it would not permit further access to its facility to collect air emissions samples unless the EPA obtained a search warrant.
On February 21, 1989, Koppers filed a motion to quash the warrant and to suppress all evidence obtained thereunder. On April 7, 1989, the district court ruled that the magistrate was authorized to issue the civil warrant and that it was properly issued under the authority of CERCLA, 42 U.S.C. Sec. 9604(e), because there was "reasonable cause to believe that there may be a release or threat of a release of a hazardous substance or contaminant." On April 19, 1989, the district court entered an order denying Koppers' motion to quash the warrant and to suppress all evidence obtained thereunder. Koppers timely appeals from this order.
The EPA argues that Koppers' appeal should be dismissed as moot because the EPA has fully executed the administrative warrant and the agency has proposed no further inspection or sampling of air emissions under section 104 of CERCLA. Thus, there is no "live controversy" between the parties--a reversal of the denial of the motion to quash will not provide Koppers with actual, affirmative relief. See B & B Chem. Co. v. United States EPA, 806 F.2d 987, 989 (11th Cir.1986).
This court lacks jurisdiction to hear moot cases. See Matter of Bunker Ltd. Partnership, 820 F.2d 308, 310 (9th Cir.1987) (citing Enrico's, Inc. v. Rice, 730 F.2d 1250, 1253 (9th Cir.1984)). We have held that an appeal from the denial of a motion to quash an administrative warrant issued pursuant to CERCLA is moot where the warrant has been fully executed prior to the appeal. Id. at 310-11. Accordingly, Koppers' appeal from the order denying its motion to quash is moot. Id.
This finding of "mootness" does not end our inquiry, however. We have identified several exceptions which should be considered when deciding the reviewability of an appeal that is moot. The first exception occurs where the trial court's order will have possible collateral legal consequences. See Powell v. McCormack, 395 U.S. 486, 495-500, 89 S.Ct. 1944, 1950-53, 23 L.Ed.2d 491 (1969); Bunker Ltd. Partnership, 820 F.2d at 311. The parties in this case, however, cite no collateral continuing legal disputes to which the execution of the administrative warrant has given rise. No citations or enforcement actions have been filed against Koppers under CERCLA. Moreover, "[t]he speculative contingency that such issues might arise 'afford[s] no basis for our passing on the substantive issues.' " Bunker Ltd. Partnership, 820 F.2d at 311 (quoting Burke v. Barnes, 479 U.S. 361, 107 S.Ct. 734, 737, 93 L.Ed.2d 732 (1987)).
The second exception arises where the issues involved are "capable of repetition, yet evading review." See Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Luckie v. EPA, 752 F.2d 454, 458 (9th Cir.1985). This exception is generally limited to cases in which the challenged action is too short in duration to be fully litigated prior to its cessation or expiration, and there is a reasonable expectation that the same complaining party will be subject to the same action again. Luckie, 752 F.2d at 458 (citations omitted). This exception does not apply where, through the party's own failure to seek and obtain a stay, he or she has prevented an appellate court from reviewing the trial court's decision. See Bunker Ltd. Partnership, 820 F.2d at 311 (citing In re Combined Metals Reduction Co., 557 F.2d 179, 191-92 (9th Cir.1977)). Situations of that type do not by their nature evade review. Id.
The "capable of repetition, yet evading review" exception does not apply here because Koppers did not take all steps necessary to perfect the appeal and preserve the status quo before the dispute became moot. Koppers did not move to stay execution of the warrant nor did it refuse to comply with the warrant thereby risking civil contempt, but preserving the issue for appellate review. See B & B Chem. Co., 806 F.2d at 990 (citation omitted). In fact, Koppers did not move to quash the warrant until a full week after it had been fully executed. Moreover, even assuming Koppers acted diligently to preserve the issue pending appeal, the EPA represents that it has completed its air sampling and that no further tests are required. Therefore, there is no reasonable expectation...
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