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National-Standard Co. v. Adamkus

decided: July 17, 1989.

NATIONAL-STANDARD COMPANY, PLAINTIFF-APPELLANT,
v.
VALDAS V. ADAMKUS, AS REGIONAL ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, LEE M. THOMAS, AS ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, HARDING-LAWSON ASSOCIATES, AND H. AND K.W. BROWN, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 87 C 5165 -- Paul E. Plunkett, Judge.

Coffey, Ripple, and Kanne, Circuit Judges.

Author: Ripple

RIPPLE, Circuit Judge

This case involves Environmental Protection Agency (EPA) inspections of two facilities owed by National-Standard Company (National-Standard) in Niles, Michigan. In its original declaratory judgment action, the appellant challenged whether 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., authorizes EPA to inspect the National-Standard facilities. The district court upheld EPA's inspection authority, and granted the agency summary judgment. It also denied National-Standard's discovery motion. We now affirm.

I.

BACKGROUND

National-Standard is a Delaware corporation that manufactures wire products at its Lake Street and City Complex facilities located in Niles, Michigan. National-Standard's manufacturing process generates, and the company stores, materials such as hydrochloric acid, sulfuric acid, and alkaline wastes. These by-products are within the RCRA definition of "hazardous waste." The statute defines hazardous waste as:

a solid waste, or combination of solid wastes, which because of its quantity, concentration or physical, chemical, or infectious characteristics may --

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

42 U.S.C. § 6903(5).*fn1 As required by section 6925(a), National-Standard applied to EPA for a permit for the treatment, storage, and disposal of the hazardous wastes it generated. See 40 C.F.R. § 270 [hereinafter TSD permit]. At present, its application remains pending, so that National-Standard's facilities currently are operating under "interim status." 42 U.S.C. § 6925(e)(1). Interim status facilities are required to handle hazardous wastes as if operating under a permit. Id. (Persons having applied for a hazardous waste disposal permit "shall be treated as having been issued such permit until such time as final administrative disposition of such application is made."). As part of the process of obtaining a permit, corrective action must be taken with regard to any releases of hazardous wastes. Interim status facilities that experience hazardous waste releases are also subject to corrective action. Id. at §§ 6924(u), 6928(h).

On March 24 and 25, 1987, ERA officials visited the facilities and performed visual site inspections During that tour, the officials determined that there were several "solid waste management units" (SWMUs) at each facility and that corrective action would be necessary. On April 3, EPA formally notified 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 sections 6924(u) and 6927. See Letters from Richard Traub to Richard Moessner (Apr. 3, 1987) [hereinafter Notification Letters]; Vol.I, R.1 at Ex. 1-A, 1-B. In the Notification Letters, EPA stated that it wanted to conduct a hazardous waste inspection and collect samples to determine the nature of any corrective action required at National-Standard's facilities before granting the company a permit to store hazardous wastes. The Notification Letters also stated that EPA contractors (defendants-appellees Harding-Lawson Associates and K.W. Brown & Associates, Inc.) were to assist with the sampling, and that representatives of the Michigan Department of Natural Resources would observe the inspection. Finally, the Letters identified thirty SWMUs at the Lake Street and City Complex facilities that would be targeted by the inspection team.

National-Standard refused to consent to the inspection. It protested the breadth of EPA's intended sampling, and stated that section 6924(u) did not authorize the "fishing expedition" proposed by EPA. It also alleged that many of the proposed sampling sites were not SWMUs.*fn2 See Letters from Mary Ellen Hogan to T. Leverett Nelson (May 11, 1987), Vol.I, R.1 at Ex. 2-A, 2-B; Appellant's Br. at 38-39. Soon afterwards, National-Standard filed a declaratory judgment action in the district court for the Northern District of Illinois. Vol.I, R.1. The complaint sought declaratory relief on the ground that EPA lacked authority under section 6924(u) to inspect the National-Standard facilities and that any inspections allowed under sections 6924(u) and 6927(a) were limited to hazardous wastes specifically listed in the Code of Federal Regulations Id. Venue was grounded on the location in Chicago of the EPA Regional Administrator charged with overseeing RCRA enforcement at the facilities.

Three days after the filing of the complaint, EPA applied for and obtained ex parte an administrative search warrant to inspect the National-Standard facilities from the United States magistrate in the district court for the Western District of Michigan (the district that encompasses Niles). Attached to the warrant application was the affidavit of Ms. Carol Witt, an EPA geologist. Ms. Witt had been part of the EPA visual site inspection team that visited the National-Standard facilities on March 24th and 25th; as a result of this inspection, she had determined that there were several SWMUs at each facility. She further stated that, based on her observations of discolored soil, surface water body sediments, discontinuities in vegetation, and odors, there had been releases of what may be hazardous wastes or constituents from some of the SWMUs. She believed the releases may have been hazardous wastes because they were near known SWMUs containing ignitable solid wastes, copper cyanide, lead, or waste water treatment sludges from electroplating operations. Ms. Witt proposed taking no more than sixty solid waste, water, and air samples, including background samples, at the facilities. Vol.II, R.10 at Ex. B. On July 15, 1987, three days after obtaining the warrant, EPA commenced execution.

On June 16, 1987, National-Standard responded, filing in the district court for the Western District of Michigan: (1) a complaint seeking preliminary and permanent injunctive relief barring EPA from continuing the inspection and from using the inspection results; and (2) an emergency motion to quash the administrative search warrant and to transfer venue of all Michigan proceedings to the district court for the Northern District of Illinois Vol.II, R.1 at Ex. A & Ex. B. Alter conferring with the district judge presiding over the pending declaratory judgment action in the Northern District of Illinois, the chief judge of the Western District of Michigan ordered all proceedings transferred to Illinois. National-Standard Co. v. Adamkus, No. 87-42-M (W.D.Mich. June 16, 1987) (order); Vol.II, R.1 at Ex. C.

Eventually, all matters were consolidated in the Northern District of Illinois. Upon making a finding of relatedness, the district court joined the Michigan-initiated proceedings with the original declaratory judgment action. The court also entered an agreed order whereby EPA could continue its inspection and take samples from the National-Standard facilities, but could not obtain the results of the analyses from EPA's contract laboratories. National-Standard then filed an amended complaint seeking declaratory relief, an order quashing the administrative search warrant, and preliminary and permanent injunctive relief as to the results of the first inspection. Vol.II, R.30. This complaint, when read in its totality, requests a broad adjudication as to the inspection powers of EPA with respect to a facility such as National-Standard's.

The district court later granted EPA's motion to deny National-Standard's discovery requests and granted summary judgment in favor of EPA and its contractor codefendants. National-Standard Co. v. Adamkus, No. 87 C 5765 (N.D.Ill. Mar. 23, 1988) (memorandum opinion and order) [hereinafter Mem. op.]. The court also vacated the agreed order -- releasing the sampling results to EPA. However, on the basis of the record before us, it appears that no EPA corrective action has been ordered since it received the sampling results.

II.

THRESHOLD ISSUES

A. Jurisdiction

Halfway through its oral argument before this court, EPA questioned, for the first time, whether the transfer order by the district court for the Western District of Michigan was properly granted. Specifically, EPA argued that Federal Rule of Criminal Procedure 41(a), in conjunction with the civil action transfer statute, 28 U.S.C. § 1404(a), requires this court to conclude that the transfer was incorrect and that, consequently, we cannot consider the propriety of the warrant's issuance. Supplemental briefs were submitted by both EPA and National-Standard. We hold that EPA has waived this issue. A thorough review of the record reveals no attempt by EPA or its co-appellees to object to the transfer when it was made. Never once in all its pleadings or briefs before the various courts in this case did EPA ever question the validity of the transfer from Michigan to Illinois. The EPA did not seek review*fn3 of the transfer order in the Sixth Circuit. See Illinois Tool Works, Inc. v. Sweetheart Plastics, Inc., 436 F.2d 1180, 1187-88 (7th Cir.), cert. dismissed, 403 U.S. 942, 91 S. Ct. 2270, 29 L. Ed. 2d 722 (1971); Purex Corp. v. St. Louis Nat'l Stockyards Co., 374 F.2d 998, 1000 (7th Cir.), cert. denied, 389 U.S. 824, 88 S. Ct. 59, 19 L. Ed. 2d 77 (1967); see also Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 985-87 (11th Cir. 1982). Nor did it move for retransfer of the matter in the district court for the Northern District of Illinois. See Purex, 374 F.2d at 1000; Linnell v. Sloan, 636 F.2d 65, 67 (4th Cir. 1980); see generally 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3846 at 359-60 (1986) ("The ...


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