Reeves Bros., Inc. v. U.S.E.P.A.

• Decision Date: 11 April 1995
• Docket Number: Civil Action No. 94-0053-L.
• Citation: 956 F.Supp. 665
• Parties: REEVES BROTHERS, INC., Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendant.
• Court: U.S. District Court — Western District of Virginia

956 F.Supp. 665

REEVES BROTHERS, INC., Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendant.

Civil Action No. 94-0053-L.

United States District Court, W.D. Virginia, Lynchburg Division.

April 11, 1995.

COPYRIGHT MATERIAL OMITTED

Timothy Earl Cupp, Cupp & Cupp, Harrisonburg, VA, Thomas N. Griffin, III, I. Faison Hicks, Parker, Poe, Adams & Bernstein, Charlotte, NC, for Reeves Bros., Inc.

John F. Corcoran, U.S. Attorney's Office, Roanoke, VA, Daniel R. Dertke, U.S. Department of Justice, Washington, DC, Andrew S. Goldman, U.S. Environmental Protection Agency, Philadelphia, PA, for U.S.E.P.A.

John F. Corcoran, U.S. Attorney's Office, Roanoke, VA, Daniel R. Dertke, U.S. Dept. of Justice, Washington, DC, Gordon W. Daiger, Matthew T. Fricker, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, for Browner, Kostmayer.

John F. Corcoran, U.S. Attorney's Office, Roanoke, VA, for Fetzer, Guarni, Richardson, Melvin.

MEMORANDUM OPINION

KISER, Chief Judge.

This matter is before me on the defendants' motions to dismiss. After extensive briefing and oral argument, the case is ripe for disposition. For the reasons set out below, I will dismiss plaintiff's constitutional claims against the individual capacity defendants and the statutory claims against the Environmental Protection Agency ("EPA") and the official capacity defendants. However, the constitutional claim against the EPA and the official capacity defendants will proceed.

PARTIES:

The plaintiff has sued the EPA in addition to six of its employees. The individuals are sued in their official and individual capacities. The individuals include Carol M. Browner, EPA Administrator; Peter H. Kostmayer, Region III Administrator; Karen Melvin, Region III Chief of Enforcement Section; Richard Fetzer, On Scene Coordinator; Robert Guarni, On Scene Coordinator; and Lawrence Richardson, Civil Investigator. For purposes of this motion, these individuals divide into two groups. The first group includes what I will call the response team members. This includes defendants Melvin,¹ Fetzer, Guarni, and Richardson. The second is the group I will call the management group and includes defendants Kostmayer and Browner.

FACTS:²

This lawsuit arises out of an EPA enforcement action. On June 14, 1994, an EPA Emergency Response Team ("the Team") from Philadelphia arrived at property the plaintiff owned in Buena Vista, Virginia. The plaintiff had purchased the property from one John Mace, now 87 years old, in February 1994. Mr. Mace leases a dwelling on property that he sold to plaintiff.

The property in question is surrounded by a fence. Road entry to the property is through a locked gate. The fence is posted with "no trespassing" signs. In the late 1970's and through the early 1980's, the property was used for the secure placement of rubber compound materials. It continues to hold those materials to the present time. The interior portion of the property where the rubber compounds were placed, which is approximately ½ mile inside the first fence described above, was surrounded by another fence that was also locked. There has been no release of contaminants from this property throughout the time in question.

Mr. Mace had a key to the outside fence so that he could enter and remove equipment stored on the site. When the Team arrived in three van loads of people, Mr. Mace went outside to determine what was happening. After determining Mace had a key to the outer gate, the Team asked for it stating that they wanted to enter the property to look for hazardous substances. Mr. Mace told the Team that he did not own the property. The Team knew that the property belonged to Reeves. Reeves had not given consent nor had the Team contacted Reeves to obtain consent, even though the EPA had planned the Team's visit five days prior to the actual visit.

Mr. Mace gave the Team members the key, although plaintiff had never authorized Mr. Mace to provide the key to anyone. The Team proceeded through the first gate and drove the ½ mile to the locked inner gate. They climbed over the locked inner gate and fence and proceeded to collect soil and water samples, run other tests, and to make a visual inspection of the property.

During the search of plaintiff's property, defendant Richardson phoned James Hall, an employee of the plaintiff. Richardson met with Hall away from the property. He questioned Hall about where the rubber compounds had been stored. Richardson did not inform Hall that the Team members were presently on the property conducting tests and collecting samples. Richardson told Hall that the action with respect to the plaintiff's property was a routine follow-up of an earlier EPA inspection of another company in the area. Richardson returned to the property after his conversation with Hall and continued the Team's actions. After talking with Richardson, Hall went to the property and met the Team as it was leaving. He was not given a receipt for the water and soil samples nor was he ever served with a warrant, order, or other authorization permitting the Team's entry onto the property. The decision to send the Team from Philadelphia had been made at least five days prior to the incident in Buena Vista.

The plaintiff alleges that the defendants acted pursuant to a de facto policy of the EPA Region III in conducting the warrantless search. Plaintiff recounts its difficulties in dealing with the EPA after the search and its inability to get the Response Team defendants to acknowledge that something wrong occurred. Defendant Melvin, the supervisor of the other defendants who constituted the Team, told plaintiff that it was the usual practice for the EPA to not obtain consent or a warrant and instead to gain immediate access to property so as to inspect it for contamination. This provides an inference that it is the policy and practice of the EPA to conduct warrantless searches via EPA Response Teams and to act contrary to the requirements of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). Indeed, the leader of the Response Team, defendant Fetzer, is an experienced field investigator. It is reasonable to infer that he knew of the de facto policies and acted pursuant to them.

Defendant Kostmayer, as the head of EPA Division III, implements and authorizes policies and has the ability to alter de facto policies. Kostmayer either implemented or tolerated the policy defendant Melvin advanced. Alternatively, Kostmayer had the responsibility to communicate to Fetzer how to do his job without violating the Fourth Amendment or CERCLA and he failed to do so. Fetzer did not know how to constitutionally search the property as evidenced by a statement in his declaration that he had obtained consent from Mr. Mace, who was not even the owner.

Defendant Browner is the Administrator of the EPA. She must review the training programs of all EPA employees, including the Response Teams.

DISCUSSION:

Fourth Amendment

The Fourth Amendment to the Constitution provides that: "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." The pivotal issue in this case is whether the Team violated that right when it entered the property in question. I conclude that it did.

The Fourth Amendment prohibition against unreasonable searches and seizures applies to administrative inspections of private commercial property. Donovan v. Dewey, 452 U.S. 594, 598, 101 S.Ct. 2534, 2537-38, 69 L.Ed.2d 262 (1981).³ However, commercial property generally involves a lower expectation of privacy than noncommercial property, such as a home. Id. at 598-99, 101 S.Ct. at 2537-38. Furthermore, it is well-settled that there can be no legitimate expectation of privacy in "open fields." United States v. Dunn, 480 U.S. 294, 303-04, 107 S.Ct. 1134, 1140-41, 94 L.Ed.2d 326 (1987); Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214 (1984). Under the open fields doctrine, an action that would be trespass under the common law, does not give rise to a Fourth Amendment violation. It is the open fields doctrine that the defendants seize upon to justify their high-handed tactics in this case.

The actions the Supreme Court has authorized under the open fields doctrine make clear that the only fact that prevents summary dismissal of the plaintiff's case is the taking of water and soil samples. For example, in Oliver, the Court approved a warrantless entry on property where government agents ignored "no trespassing" signs, walked around a locked gate, and travelled a mile onto private property before discovering a field of marijuana. Similarly, in Dunn, the Court approved the actions of Drug Enforcement Agency officials that had crossed over five fences, some of them made of barbed wire, walked up to a barn and peered inside it. Upon observing what the officials thought to be a phenylacetone laboratory, the officials left the property, obtained a warrant from a magistrate, and returned to the property to execute the warrant. The actions in walking up to the barn were valid under the open fields doctrine. Id. Thus, it appears that government agents may make warrantless entries upon private property, even though their actions could be trespassory.

However, as noted previously, the government's action in this case went beyond a mere observational search of the property. The defendants in this case seized soil and water samples and removed them from the property for further testing. The plaintiff focuses on this fact to correctly distinguish cases such as Oliver and Dunn, which involved nothing more than walking onto an open field as observing what could be observed. The plaintiff would limit the open fields cases to situations involving mere visual or observational inspection and urges that because the Team exceeded that in this case, a...