ELR Citation: ELR 20900
No(s). 85 C 3287 (N.D. Ill. Apr 30, 1985)

The court rules that §104(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorizes the Environmental Protection Agency (EPA) to enter private property on which hazardous substances have been disposed, utilizing an ex parte warrant, to study the site and assess possible responses, without working an uncompensated taking. Initially, the court rules that response, removal, and remedial actions under §104 all necessarily include entry. It also holds that plaintiff's action for injunctive relief concerns only the Phase 1 investigative activities planned by EPA at the industrial property from which polychlorinated biphenyls (PCBs) allegedly have been released onto neighboring land and waters. The Phase 2 remedial actions have not been scheduled and need not be addressed in this expedited hearing. Moreover, the warrant plaintiff wishes quashed concerns only Phase 1, and EPA has conceded that entry for Phase 2 activities, which will more seriously disrupt the ongoing industrial activities on plaintiff's property, requires a court order, not just a warrant.

The court next holds that execution of the EPA warrant will not constitute a taking without just compensation. Assuming that the entry constitutes a taking for purposes of resolving plaintiff's motion for preliminary relief, the court notes that the availability of compensation under the Tucker Act for authorized takings and that the proposed entry is for a public purpose are not in dispute. The court next rejects plaintiff's argument that monetary relief could not adequately compensate it for the loss it would suffer as a result of EPA's planned entry. The case relied on by plaintiff found such relief inadequate because the taking entailed a risk to human life. While the Phase 2 activities arguably might fall into this category because the excavation, transportation, and storage of PCBs could expose plaintiff's employees or others to the chemical, the harms attributed to Phase 1 all are economic. The court also rejects the argument that the proposted entry is unauthorized and therefore under CERCLA §104(b) not eligible for compensation under the Tucker Act. The court concludes that since response actions require access to the site and Congress clearly intended to apply CERCLA response authorities to privately owned land, that §104(b) must authorize entry.

The court next rules that the statute allows entry by warrant. Although silent on the question of whether a warrant or court order is required, §104(b) defines searchlike activities similar to those normally authorized by warrant, and EPA's interpretation of the statute is due deference. The court also holds that the ex parte proceeding was sufficient. EPA interprets the statute to require no more and plaintiff did not present any evidence not put before the magistrate by EPA that might have caused the magistrate to withhold the warrant. Since the entry by ex parte warrant was authorized by CERCLA, the Tucker Act remedy would be available, and the court rejects plaintiff's claim of an uncompensated taking.

The court next holds that the entry would not be an unreasonable search. The intrusion is reasonable under the circumstances as explained to the magistrate by EPA and the warrant is appropriately definite and limited. The court also finds that plaintiff is unlikely to prevail on the merits of its claim that the entry will deprive it of property without due process. Assuming that there would be a deprivation of property, plaintiff nonetheless failed to demonstrate that procedures more elaborate than those of an ex parte warrant proceeding are necessary to protect its interests. The court denies plaintiff's motions to reverse the magistrate's refusal to quash the warrant and for an injunction barring EPA entry.

Counsel for Plaintiff
Jan Feldman
Phelan, Pope & John, Ltd.
180 N. Wacker Dr., Chicago IL 60606
(312) 621-0700

Richard J. Kissel
Martin, Craig, Chester & Sonnenschein
115 S. La Salle St., Chicago IL 60603
(312) 368-9700

Counsel for Defendants
James T. Haynes, Ass't U.S. Attorney
Everett McKinley Dirksen Bldg., Rm 1500 S, 219 Dearborn St., Chicago IL 60604
(312) 353-5300