Riverdale Mills Corp. v. Pimpare, 04-1626.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtLynch
Citation392 F.3d 55
PartiesRIVERDALE MILLS CORP. and James M. Knott, Sr., Plaintiffs, Appellees, v. Justin PIMPARE and Daniel Granz, Defendants, Appellants, United States; Three Unknown Named Agents of the United States Environmental Protection Agency; and Stephen Creavin, Defendants.
Docket NumberNo. 04-1626.,04-1626.
Decision Date22 December 2004
392 F.3d 55
RIVERDALE MILLS CORP. and James M. Knott, Sr., Plaintiffs, Appellees,
Justin PIMPARE and Daniel Granz, Defendants, Appellants,
United States; Three Unknown Named Agents of the United States Environmental Protection Agency; and Stephen Creavin, Defendants.
No. 04-1626.
United States Court of Appeals, First Circuit.
Heard November 2, 2004.
Decided December 22, 2004.

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Jeffrey S. Bucholtz, Deputy Assistant Attorney General, with whom Peter D. Keisler, Assistant Attorney General, Michael J. Sullivan, United States Attorney, Barbara L. Herwig, Attorney, Appellate Staff, Civil Division, Department of Justice, and Richard A. Olderman, Attorney, Appellate Staff, Civil Division, Department of Justice, were on brief, for appellants.

Paul D. Kamenar, with whom Warren G. Miller, Henry T. Dunker, Daniel J. Popeo, and the Washington Legal Foundation were on brief, for appellees.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

This case involves another episode in the ongoing saga of disputes between the owner of a mill and the United States Environmental Protection Agency (EPA). An earlier episode is recounted in United States v. Knott, 256 F.3d 20 (1st Cir.2001). This episode involves issues of qualified immunity for EPA inspectors who took wastewater samples.

James M. Knott, Sr., and Riverdale Mills Corporation ("Riverdale") sued two EPA inspectors, Justin Pimpare and Daniel Granz, alleging violations of the plaintiffs' Fourth Amendment right to be free from unreasonable searches.1 The plaintiffs allege that the agents' sampling, without warrant or consent, of wastewater from underneath a manhole located on Riverdale land in Northbridge, Massachusetts, on the afternoon of October 21, 1997, constituted a violation of the Fourth Amendment. The Fourth Amendment claim is pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

Pimpare and Granz defended, inter alia, on grounds of qualified immunity; the district court denied their motion for summary judgment on grounds of qualified immunity, and they properly filed an interlocutory appeal. We reverse because, under the first prong of the qualified immunity test, Knott and Riverdale have no reasonable expectation of privacy in this wastewater under the circumstances shown in the record and therefore they have no Fourth Amendment right. Even were this ruling incorrect, we would reverse under the second prong, since the existence of such a reasonable expectation was not clearly established law. We remand for entry of judgment for Pimpare and Granz on qualified immunity grounds.


Riverdale manufactures plastic-coated steel wire products. Knott is the company's president, treasurer, chief executive officer, chairman of the board, and controlling shareholder. During manufacture of the product, a water-based cleaning process is used, and this cleaning process generates both acidic and alkaline wastewater. Riverdale has a state permit allowing it to put this wastewater into the public

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sewer system so long as proper treatment (neutralizing the acidic or alkaline qualities of the water, among other things) has been applied before the wastewater reaches the public sewer.

In order to meet state and federal clean-water requirements, Riverdale has a pretreatment system within its plant which is supposed to treat and neutralize the acid or base qualities of the wastewater before it reaches the public sewer. After going through the pretreatment system, the wastewater flows through a meter loop where the quantity of wastewater is measured to determine the sewer charges that Riverdale must pay to the town of Northbridge. The wastewater then flows through a "test pit" outside of Riverdale's plant ("Manhole 1") toward the public sewer.2

Manhole 1 is roughly two feet deep and is covered by an unmarked 171-pound steel manhole cover. It is located on a paved street, Riverdale Street, that runs alongside the mill building. Pimpare noted in his affidavit that it "appears to be a public street." Riverdale alleges that it privately owns this street, which runs from a public road (Route 122) across Riverdale's property along the northern side of the mill. The road dead ends, however, at a set of concrete barriers before a bridge on Riverdale's property. On the Route 122 entrance to Riverdale Street, a sign reads "Bridge Closed — Local Traffic Only." The road is actually on top of an earthen dam built by earlier owners of the plant and used to create a millpond opposite the Riverdale mill. Riverdale has alleged in its complaint that Riverdale owns Manhole 1; there is, as we found in a previous opinion, considerable reasonable dispute about whether this is so. See Knott, 256 F.3d at 32. However, since the case is before us at the summary judgment stage, we must construe all disputed facts in the record in favor of the non-movants, and thus, we treat the road as privately owned by Riverdale.

The plant's wastewater flows past Manhole 1 through 300 more feet of pipe allegedly owned by Riverdale to Manhole 2, which is further down Riverdale Street. At Manhole 2, the Riverdale pipe carrying wastewater from Manhole 1 enters Manhole 2 as a separate flow and merges with other flows within Manhole 2 (it is possible to sample Riverdale's wastewater separately at Manhole 2 before it merges with the other flows). Manhole 2 is indisputably publicly owned and is part of the public sewer system. From there, the wastewater eventually flows to the Town of Northbridge treatment plant before being released into the Blackstone River.

On July 28, 1997, an anonymous tipster purporting to be a Riverdale employee sent a letter to the EPA alleging that the plant's pretreatment system was not being run properly and thus that the plant might be discharging wastewater with improper pH levels and other problems.

The EPA decided to look into it. On the morning of October, 21, 1997, the Agency sent Pimpare and Granz to the mill to perform an inspection. The two inspectors did not obtain a search warrant, and there is no claim of exigent circumstances. Inspector Pimpare first met with Knott and two high-level employees; Inspector Granz

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arrived sometime during that opening meeting. At that meeting, Pimpare did not assert any statutory authority to search Riverdale property but instead asked Knott to give his consent to an inspection of the wastewater treatment facility, including tests of the wastewater.

Both the complaint and Knott's affidavit state that Knott "explicitly" told both Pimpare and Granz that they could sample Riverdale's wastewater and tour its plant only on the "express condition" that they be accompanied at all times by Knott or Riverdale employees designated by Knott. We accept the district court's conclusion that Knott's consent was given only on condition that the agents be so accompanied at all times.3 See Knott, 256 F.3d at 23. At some point during the day, Knott also told the inspectors that he owned the sewer lines under Manhole 1 and that the public sewer did not begin until Manhole 2. Knott told the inspectors this at a closing conference after all the sampling from Manhole 1 had already been completed. Id. at 24. Knott alleges that he also told the agents this fact at the opening meeting, before any sampling was done.

That morning, right after the meeting, Pimpare and Granz were taken by Knott and the two Riverdale employees directly to Manhole 1, where the inspectors took samples from approximately 10:40 am to 11:15 am. One sample was provided to a Riverdale employee. This first sampling, then, was indisputably in conformity with Fourth Amendment requirements, if any are applicable, because it fell within the scope of consent.

The inspectors had earlier planned on setting up a 24-hour composite sample, but this was not done. The reason why this was not done is in some dispute. Pimpare's affidavit states that it was infeasible because of the intermittent nature of the wastewater discharges. He states that he told Knott this and "made it clear to Knott that Granz and [Pimpare] would be taking additional samples from the manhole throughout the day." He says that Knott responded, "Okay." Knott gives a different account. His affidavit states that Pimpare told him 24-hour composite sampling would be a bad idea because it would be unsafe to leave the equipment in the street. Knott says he offered the agents some accommodations to fix this problem, which were declined. Knott states that he was never told that the inspectors were going to conduct periodic sampling throughout the day.

After conducting this initial round of sampling at Manhole 1, Pimpare states that he and Granz were taken on a tour of the mill by Knott and the two employees. Pimpare states that at the conclusion of this tour, he again told Knott and the two employees that he would need to conduct more testing at Manhole 1; he asserts that Knott did not object. Knott disputes that Pimpare told him the agents would need to conduct more tests at Manhole 1.

In any event, Pimpare and Granz took samples from Manhole 1 during two additional intervals that afternoon: between 12:40 pm and 1:15 pm, and between 3:00 pm and 3:04 pm. These sampling events are the crucial ones for purposes of this appeal. Knott states that Pimpare and Granz took these samples without him or any of his representatives present, and thus that this afternoon sampling exceeded the scope of his consent. The inspectors concede that no Riverdale representatives

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were present for this sampling. The sampling occurred, however, on the street in front of the plant and in full view of Riverdale employees. Id. at 23. A sample from the 12:40 pm to 1:15 pm testing was given to one of the Riverdale employees, who signed a chain of custody form. Id. at 24. Before leaving the area that day, the...

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