National-Standard Co. v. Adamkus

• Decision Date: 23 March 1988
• Docket Number: 87 C 5392.,No. 87 C 5165,87 C 5165
• Citation: 685 F. Supp. 1040
• Parties: NATIONAL-STANDARD COMPANY, Plaintiff, v. Valdas V. ADAMKUS, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

685 F. Supp. 1040

NATIONAL-STANDARD COMPANY, Plaintiff, v. Valdas V. ADAMKUS, et al., Defendants.

Nos. 87 C 5165, 87 C 5392.

United States District Court, N.D. Illinois, E.D.

March 23, 1988.

Luis M. Rundio, Jr., McDermott, Will & Emery, Chicago, Ill., Mary Ellen Hogan, Robert J. Slobig, McDermott, Will & Emery, for plaintiff.

Gail C. Ginsberg, Asst. U.S. Atty., for defendants.

MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

In this case, we are asked to determine the scope of the United States Environmental Protection Agency's ("EPA") inspection and sampling authority under the Resource Conservation and Recovery Act ("RCRA"), as amended by the Hazardous and Solid Waste Amendments of 1984 ("HSWA"), 42 U.S.C. § 6901, et seq.¹ Plaintiff National-Standard Company ("National-Standard") filed this action for declaratory and injunctive relief challenging the propriety of EPA's entrance onto its properties for an inspection and sampling visit. We conclude that EPA acted within the scope of its statutory authority at all times, and therefore we enter summary judgment for EPA.

I. Statutory Framework

RCRA is a comprehensive statutory scheme designed to regulate the storage, transportation, and disposal of solid wastes in the United States. RCRA provides that every person owning or operating a facility for the treatment, storage, or disposal of hazardous wastes or hazardous constituents,² or planning to construct such a facility, must obtain a permit from EPA. § 6925(a). Section 6925(c)(1) provides that a permit will issue if the hazardous waste treatment, storage, or disposal facility complies with all of the standards and requirements set forth in sections 6924 and 6925. Among the many requirements in those sections is the requirement that any release of hazardous wastes from any facility, regardless of whether the spill occurred before or after the issuance of the permit, must be cleaned up:

(u) Continuing Releases at Permitted Facilities.—Standards promulgated under this section shall require, and a permit issued after November 8, 1984, by the Administrator or a State shall require, corrective action for all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage, or disposal facility seeking a permit under this subchapter, regardless of the time at which waste was placed in such unit. Permits issued under section 6925 of this title shall contain schedules of compliance for such corrective action (where such corrective action cannot be completed prior to issuance of the permit) and assurances of financial responsibility for completing such corrective action.

42 U.S.C. § 6924(u).³

RCRA also provides that EPA may require a person owning or operating a facility on "interim status"⁴ to take corrective action in the event hazardous wastes are released into the environment:

(h) Interim status corrective action

(1) Whenever on the basis of any information the Administrator determines that there is or has been a release of hazardous waste into the environment from a facility authorized to operate under section 6925(e) of this title, the Administrator may issue an order requiring corrective action or such other response measure as he deems necessary to protect human health or the environment or the Administrator may commence a civil action in the United States district court in the district in which the facility is located for appropriate relief, including a temporary or permanent injunction.

(2) Any order issued under this subsection may include a suspension or revocation of authorization to operate under section 6925(e) of this title, shall state with reasonable specificity the nature of the required corrective action or other response measure, and shall specify a time for compliance. If any person named in an order fails to comply with the order, the Administrator may assess, and such person shall be liable to the United States for, a civil penalty in an amount not to exceed $25,000 for each day or noncompliance with the order.

42 U.S.C. § 6928(h).

The case before this court challenges the scope of EPA's inspection and sampling powers under RCRA. EPA's general authority to enter, inspect, and obtain samples from RCRA regulated facilities comes from section 6927(a):

(a) Access entry

For purposes of developing or assisting in the development of any regulation or enforcing the provisions of this chapter, any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous wastes shall, upon request of any officer, employee or representative of the Environmental Protection Agency, duly designated by the Administrator, or upon request of any duly designated officer, employee or representative of a State having an authorized hazardous waste program, furnish information relating to such wastes and permit such person at all reasonable times to have access to, and to copy all records relating to such wastes. For the purposes of developing or assisting in the development of any regulation or enforcing the provisions of this chapter, such officers, employees or representatives are authorized—

(1) to enter at reasonable times any establishment or other place where hazardous wastes are or have been generated, stored, treated, disposed of, or transported from;

(2) to inspect and obtain samples from any person of any such wastes and samples of any containers or labeling for such wastes.

Each such inspection shall be commenced and completed with reasonable promptness. If the officer, employee or representative obtains any samples, prior to leaving the premises, he shall give to the owner, operator, or agent in charge a receipt describing the sample obtained and if requested a portion of each such sample equal in volume or weight to the portion retained. If any analysis is made of such samples, a copy of the results of such analysis shall be furnished promptly to the owner, operator, or agent in charge.

The issue in this case is whether the EPA, acting pursuant to section 6927(a), lawfully entered National-Standard's facilities, inspected the premises, and took samples.

II. Facts

National-Standard manufactures wire products at its two facilities in Niles, Michigan, known as the Lake Street facility and the City Complex facility. In the course of its manufacturing activities, National-Standard generates materials (such as hydorchloric acid, sulfuric acid, and alkaline wastes) which are within the RCRA definition of "hazardous wastes." § 6903(5). As required by law, National-Standard applied to EPA for a Part B permit under RCRA (see 40 C.F.R. Part 270) for the temporary storage of the hazardous wastes it generated. At present, the application remains pending and National-Standard is operating its waste storage facilities on "interim status." See n. 4, supra.

On April 3, 1987, EPA informed National-Standard that it was planning a sampling visit at National-Standard's facilities as the next stage of the corrective action program required under section 6924(u). EPA wanted to see if any corrective action was required at National-Standard's facilities before granting the company a permit to store hazardous wastes. EPA wanted its subcontractors (defendants Harding-Lawson Associates and K.W. Brown) and representatives of the Michigan Department of Natural Resources ("MDNR") to accompany it on the sampling visit and to actually take the samples and analyze them. EPA identified twenty areas it wanted to sample at the Lake Street facility and ten such areas at the City Complex site.

National-Standard objected to EPA's proposed sampling visit as beyond the scope of EPA's statutory sampling authority. After unsuccessful attempts to resolve their differences, National-Standard filed the present action for declaratory relief. National-Standard sought a declaration that the EPA's proposed sampling visit exceeded its statutory authority.

Three days later, and despite its knowledge of the pendency of this case, EPA applied ex parte to a magistrate in the United States District Court for the Western District of Michigan (the district in which National-Standard's facilities are located) for an administrative search warrant. EPA submitted the affidavit of Carol Witt, a geologist employed by EPA, in support of its warrant application. Witt's affidavit stated that she had visually inspected National-Standard's facilities and had determined that there were several SWMUs (see n. 3, supra) at each facility. Witt further stated that she determined from her observations of discolored soil, surface water body sediments, discontinuities in vegetation, and odors, that there had been releases of what may be hazardous wastes or constituents from some of the SWMUs. Witt stated she believed the releases may have been of hazardous wastes because they were near SWMUs containing ignitable solid wastes, copper cyanide, lead, or wastewater treatment sludges from electroplating operations. Witt proposed taking no more than sixty soil, water, and air samples, including background samples, at the facilities.

The magistrate issued the warrant as requested. The warrant authorized the EPA to enter National-Standard's plants, to inspect the premises, and to take up to sixty samples.

National-Standard immediately came into this court seeking an emergency order quashing the search warrant and temporarily restraining EPA from conducting its sampling visit. We declined to issue the temporary restraining order, finding no irreparable injury and finding the equities favored the EPA. Subsequently, however, the parties reached an agreement to maintain the status quo pending judicial resolution of their dispute. EPA's contractors were given access to National-Standard's facilities, but the results of the analysis of those samples have been withheld from EPA pending resolution of this suit.

III. The Parties' Arguments

EPA contends that National-Standard's suit is...