The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
In this case, defendants Crown Chemical, Inc. ("Crown"), James E. Spain ("Spain"), and Catalino Uy ("Uy") (collectively "defendants") were indicted by a grand jury for, inter alia, discharging pollutants into the Metropolitan Water Reclamation District of Greater Chicago ("MWRD") sewer system in violation of the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (2006) ("CWA"). Crown is a manufacturer of chemical cleaning products located in Crestwood, Illinois, Spain is Crown's President and controlling shareholder, and Uy was Crown's General Manager during the relevant time period. Defendants have collectively moved to suppress all evidence obtained through the execution of three search warrants by the Environmental Protection Agency ("EPA"), arguing that the EPA's searches violated their Fourth Amendment rights. For the reasons discussed below, defendants' motion to suppress is denied in its entirety.
The facts recited below are drawn primarily from the affidavits submitted by EPA Special Agent John Singler ("Singler") in support of the EPA's warrant applications, as it is these facts that defendants allege failed to establish probable cause for the warrants. The MWRD is a publicly owned treatment works facility ("POTW") that holds a National Pollutant Discharge Elimination System ("NPDES") permit pursuant to 33 U.S.C. § 1342 (2006). As a POTW, the MWRD is responsible for collecting and cleansing wastewater from industrial, commercial, and residential sources in the Greater Chicago area before discharging that wastewater into surface water bodies such as lakes and rivers. In conjunction with its NPDES permit, the MWRD established a pre-treatment program known as the MWRD Sewage and Waste Control Ordinance ("the Ordinance"). See 40 C.F.R. § 403.8(a) (2007) (requiring any POTW with the capacity to treat more than five million gallons of wastewater per day to develop a pre-treatment program). The Ordinance is designed to regulate discharges into the MWRD sewer system, and it incorporates and implements many of the standards set forth in the EPA's regulations. It became federally enforceable-violations may be prosecuted pursuant to the criminal offense provision of the CFA, 33 U.S.C. § 1319(c) (2006)-when it was approved by the EPA in 1985. Of particular relevance to the pending motion, the Ordinance prohibits wastewater with a pH reading*fn1 of less than 5.0 or greater than 10.0 from being discharged into the MWRD sewer system.*fn2 In addition to the Ordinance, the MWRD also established a permitting process whereby industrial users that are subject to the EPA's categorical pre-treatment standards-standards applicable to businesses engaged in particular industries-must obtain a permit to discharge wastewater into the MWRD sewer system.
On January 20, 1995, Crown (through Spain) applied for a permit to discharge non-industrial sewage into the MWRD sewer system. In the application, Crown described its business as a "Commercial and Recreational facility," and neglected to check "boxes which would have indicated that Crown Chemical included Industrial Buildings and that [i]industrial waste is produced by Crown Chemical." Defs.' Mot. to Suppress Ex. A (internal quotation marks omitted). Crown received its permit on February 8, 1995. In relevant part, the permit states that "discharges into the sanitary sewer system constructed under this permit shall consist of sanitary sewage only," and that "discharge of industrial waste is forbidden." Id. (internal quotation marks omitted). These restrictions are relevant, according to the government, because-as discussed below-Crown discharged industrial waste into the MWRD sewer system on a daily basis, but never notified the MWRD of the discrepancy between the discharges allowed by the permit and the discharges Crown was actually making. According to Singler's affidavit and the government's opposition brief, this was a violation of federal regulations. See 40 C.F.R. § 403.12(j) (2007) (industrial users subject to the EPA's categorical pre-treatment standards are required to notify the POTW of "any substantial change in the volume and character of pollutants in their discharge").*fn3
On November 22, 2000, a large amount of foam was unexpectedly discharged from the sewer system into the streets of Crestwood. The Crestwood Fire Department responded to a call reporting the foam. Upon arriving at the scene, Crestwood fire marshal Kevin McAuliffe ("McAuliffe") determined that the substance arising from the sewer was white, soapy bubbles. McAuliffe, along with an official from the MWRD, proceeded to Crown to investigate, as Crown is the only business in the area that manufactures soap. McAuliffe and the MWRD official were unable to obtain any conclusive evidence that Crown was responsible for the foam, but the MWRD's report of the incident indicated that the MWRD considered Crown "a source of the foaming incident." Defs.' Mot. to Suppress Ex. A (internal quotation marks omitted). Singler interviewed McAuliffe on September 17, 2001, and his affidavit in support of the warrants includes McAuliffe's account of the incident.
On December 26, 2000, the MWRD received a complaint from an employee (referred to as "Employee One" in Singler's affidavits, see id.) who had recently been fired by Crown. Employee One informed the MWRD that Crown was illegally discharging pollutants into the MWRD sewer system on a regular basis. However, the MWRD could not investigate Employee One's allegations at the time because the sewer system was inaccessible-the manhole covers from which the MWRD accesses the sewer system were allegedly frozen shut.
On February 6, 2001, Employee One also contacted the EPA through Singler. Singler interviewed him on February 8, 2001. In the interview, Employee One told Singler that he had been employed at Crown from approximately October 1, 2000, until December 23, 2000. During his employment, Employee One's supervisors regularly instructed him to dump pollutants down Crown's drains, which lead directly to the MWRD sewer system. Specifically, Employee One told Singler that Crown dumped excess product left over after soap, dye, and other products were produced into its drains approximately five times each day. He also stated that he regularly used a hose to flush chemical residue from Crown's mixing tanks into the floor drains. Finally, Employee One informed Singler that on November 22, 2000-the day of the so-called foaming incident- Crown produced a batch of dish soap that proved to be defective, and Crown's management directed Crown's employees to dump the entire batch (according to Employee One, approximately 250 gallons) into the MWRD sewer system.
After verifying that Crown was still operating its business, Singler applied for the first warrant on September 21, 2001, relying on the information set forth above. The application sought permission to covertly enter the MWRD sewer system via an unlocked and removable*fn4 manhole cover located on Crown's property-specifically, on the driveway in front of Crown's office building and approximately thirty to forty feet from the nearest public street. The driveway was unfenced, and Crown had taken no measures to restrict access to the manhole or discourage its use as a point of entry to the MWRD sewer. Once in the sewer system, the EPA would locate the point at which Crown's sewer line flows freely*fn5 into the MWRD sewer system. The EPA would then place testing equipment both within Crown's sewer line and upstream from Crown's sewer line to monitor the pH levels of wastewater discharged by Crown and that which had not yet reached Crown's junction. According to Singler, it was necessary to conduct this testing without Crown's knowledge in order to verify whether Crown was actually discharging wastewater into the MWRD sewer system in violation of the Ordinance and the CWA.
The magistrate judge granted the EPA's warrant application. On September 23, 2001, the EPA surreptitiously entered the manhole on Crown's driveway and installed the pH monitoring equipment. The devices monitored the pH levels of Crown's wastewater and the wastewater in the MWRD sewer line continuously for one week. The EPA removed them on September 30, 2001, and performed a preliminary analysis on October 3, 2001. The EPA's review indicated that Crown's wastewater during the week of monitoring ranged in pH level from 2.0 (a highly acidic reading) to 12.0 (a highly caustic or base reading). In contrast, the pH levels of the wastewater upstream from Crown were only 6.0 to 8.0, which, according to the EPA, is the typical range for sanitary sewage.
After receiving the test results, the EPA applied for a second warrant on October 4, 2001. In support of the warrant application, Singler submitted an affidavit that was virtually identical to the one he submitted in support of the first warrant. Indeed, as far as the court can tell, the only difference between Singler's first affidavit and his second is that the second includes a summary of the test results obtained during the initial one-week monitoring period. The second application sought permission to conduct a second week of covert sampling, just as the EPA had conducted pursuant to the first warrant. The second warrant was issued by the magistrate judge the same day as the EPA applied for it, and the EPA monitored Crown's wastewater from October 7, 2001, until October 14, 2001. According to the EPA, Crown's wastewater again tested outside the typical pH range-6.0 to 8.0-for sanitary sewage, while the wastewater upstream from Crown was normal.
Finally, on October 30, 2001, the EPA applied for a warrant to search Crown's entire facility. Singler's affidavit accompanying the third warrant application again recited much of the same information that was contained in the first and second warrant applications, and also summarized the results of the EPA's two separate weeks of testing. The magistrate judge approved the warrant the same day, and the EPA executed the warrant on November 1, 2001.
Defendants raise a multitude of arguments in their attempt to demonstrate that the searches executed by the EPA pursuant to the three warrants violated defendants' Fourth Amendment rights. The majority of defendants' contentions need not be addressed, however, because their position fails at the threshold. As the government notes, not all searches fall within the ambit of the Fourth Amendment. When a defendant challenges a search as unconstitutional, the court's initial inquiry is whether there has been a "search" within the meaning of the Fourth Amendment at all. See, e.g., Kyllo v. United States, 533 U.S. 27, 31 (2001) (noting that "whether or not a Fourth Amendment 'search' has occurred" is the "antecedent question"). A Fourth Amendment search occurs only when: (1) the defendant manifested a subjective expectation of privacy in the area searched; and (2) the defendant's expectation is one that society is willing to recognize as objectively reasonable. Id. at 33; California v. Greenwood, 486 U.S. 35, 39 (1986); Smith v. Maryland, 442 U.S. 735, 740-41 (1979). Applying this test, several courts have concluded-on facts virtually identical to those presently before the court-that wastewater monitoring is not a search under the Fourth Amendment. See Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 63-65 (1st Cir. 2004); United States v. Hajduk, 396 F. Supp. 2d 1216, 1224-26 (D. Colo. 2005); People v. Elec. Plating Co., 683 N.E.2d 465, 466-70 (Ill. App. Ct. 1997). As ...