EPA underground storage tank search was authorized and constitutional

Evidence supported the EPA ALJ’s determination that the plaintiff’s underground storage tanks (USTs) were subject to search under RCRA inspection statute, 42 U.S.C. § 6991d(a), and that she granted consent to other searches on the property. Mayes v. Environmental Protection Agency, 2008 U.S. Dist. LEXIS 700 (E.D. Tenn. January 4, 2008):

Defendants contend that it is the EPA who must determine whether the tanks at issue were farm tanks, not Plaintiff, and thus, they were not bound by Plaintiff’s assertions that Tanks AV # 1 and AV # 2 were farm tanks. The Seventh Circuit has addressed similar arguments and held that RCRA “vests broad authority in EPA to inspect and sample any facility at which the agency has probable cause to believe that violations of the statute are occurring.” National-Standard Co. v. Adamkus, 881 F.2d 352, 361 (7th Cir. 1989). The National-Standard court rejected a narrow interpretation of the EPA’s ability to inspect for hazardous waste under RCRA, holding that such an “interpretation would ’emasculate EPA’s ability to pursue the broad remedial goals of RCRA.'” Id. at 360 (citation omitted). Thus, the Court finds that it is the EPA, not Plaintiff, who must make the determination of whether a UST qualifies as a farm tank.

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. . . Thus, under RCRA, the EPA is authorized to conduct warrantless searches of a UST without the consent of the UST’s owner. Accordingly, the Court finds that any search and seizure of Tank AV # 3 was authorized under 42 U.S.C. § 6991d(a). Additionally, given the EPA’s need to be able to investigate Tanks AV # 1 and AV # 2 to determine whether the tanks in question were farm tanks, the Court finds that the EPA was also authorized to inspect tanks AV # 1 and AV # 2. Thus, all searches of Tanks AV # 1, AV # 2, and AV # 3 were authorized administrative searches under RCRA and were not unconstitutional.

Drug checkpoint ruse led the defendant to pull off the highway, and he was stopped for not stopping at the stopsign at bottom of the off-ramp. While he was being written a warning ticket, he was obviously nervous. The officer called for a drug dog and asked for consent. Defendant granted and then withdrew consent. While waiting for the drug dog, the defendant and officer made small talk, and defendant finally consented again to a search for paraphernalia which was found. The drug dog alerted and 24.7 kilos of cocaine were found. The stop and detention were lawful. United States v. Wright, 512 F.3d 466 (8th Cir. 2008).*

Officer had no reason to ask defendant for consent of the premises searched because he was detained only because there was a drug investigation underway and he was not even a resident of the premises to logically be asked for consent. United States v. Johnson, 2008 U.S. Dist. LEXIS 549 (E.D. Pa. January 4, 2008).*