Koppers Indus., Inc. v. United States Env't Prot. Agency, 902 F.2d 756 (9th Cir. 1990). · Go Syfert
Koppers Indus., Inc. v. United States Env't Prot. Agency, 902 F.2d 756 (9th Cir. 1990). Cases Citing This Book View Copy Cite
38 citation events (19 in the last 25 years) across 14 distinct courts.
Strongest positive: Throw v. Mayorkas (wawd, 2023-04-05)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 26 distinct citers.
cited Cited as authority (rule) Throw v. Mayorkas
W.D. Wash. · 2023 · confidence medium
Koppers Indus., Inc. v. U.S. E.P.A., 902 F.2d 756, 758 (9th 14 Cir. 1990).
discussed Cited as authority (rule) Gill v. Mayorkas
W.D. Wash. · 2022 · confidence medium
Utilities Comm’n of State of Cal. v. FERC, 100 21 F.3d 1451, 1460 (9th Cir. 1996) (“This exception is most commonly applied in habeas corpus 22 proceedings where the petitioner has subsequently obtained the relief sought”); Koppers Indus., 23 24 1 Inc. v. U.S. E.P.A., 902 F.2d 756, 758 (9th Cir. 1990) (this “exception occurs where the trial 2 court’s order will have possible collateral legal consequences”). 3 Plaintiff claims he has suffered adverse consequences as a result of being found 4 inadmissible—his visa was cancelled, he was unable to tend to his business in person, and …
cited Cited as authority (rule) (PC) Johnson v. California Department of Corrections and Rehabilitation
E.D. Cal. · 2021 · confidence medium
Rodriguez, 2021 WL 2343346 , at *6 (citing See Koppers 23 Indus. v. U.S.E.P.A., 902 F.2d 756, 758 (9th Cir. 1990)).
cited Cited as authority (rule) Irma Ramirez v. Golden Creme Donuts
9th Cir. · 2016 · confidence medium
Koppers Indus., Inc. v. EPA, 902 F.2d 756, 758 (9th Cir. 1990).
discussed Cited as authority (rule) In re: Bay Vista Apartments, LLC
9th Cir. BAP · 2011 · confidence medium
In re Pattullo, 271 F.3d at 900 (9th Cir. 2001)(quoting 18 Koppers Indus., Inc. v. U.S. E.P.A., 902 F.2d 756, 758 (9th Cir. 19 1990). 20 Dismissal of the bankruptcy case raises the question of whether 21 this appeal is now moot. 22 In the bankruptcy context the determination of whether a case becomes moot on the dismissal of the bankruptcy hinges on the 23 question of how closely the issue in the case is connected to the underlying bankruptcy.
discussed Cited as authority (rule) Armstrong v. Federal Aviation Administration
D.C. Cir. · 2008 · confidence medium
Sys. v. Dole Food Co., Inc., 969 F.2d 1430, 1435 (2d Cir.1992); Koppers Indus., Inc. v. EPA, 902 F.2d 756, 759 (9th Cir.1990); In re Kulp Foundry, Inc., 691 F.2d 1125, 1129-30 (3d Cir.1982); cf. Dow Jones & Co., Inc. v. Kaye, 256 F.3d 1251 , 1257-58 (11th Cir.2001); United States v. Taylor, 8 F.3d 1074, 1077 (6th Cir.1993); In re L.F.
cited Cited as authority (rule) In Re: John G. Pattullo in Re: Susan F. Pattullo, Debtors. United States Internal Revenue Vacating Service v. John G. Pattullo Susan F. Pattullo
9th Cir. · 2001 · confidence medium
“This court lacks jurisdiction to hear moot cases.” Koppers Indus., Inc. v. United States EPA, 902 F.2d 756, 758 (9th Cir.1990).
cited Cited as authority (rule) Public Utilities Commission of California v. Federal Energy Regulatory Commission
9th Cir. · 1996 · confidence medium
Protection Agency, 902 F.2d 756, 758 (9th Cir.1990).
cited Cited as authority (rule) Public Utilities Commission Of The State Of California v. Federal Energy Regulatory Commission
9th Cir. · 1996 · confidence medium
Protection Agency, 902 F.2d 756, 758 (9th Cir. 1990). 58 CPUC and PG&E have not explicitly argued that this exception to mootness applies to these cases.
cited Cited as authority (rule) Texaco Refining and Marketing Inc. v. Davis
D. Or. · 1993 · confidence medium
He relies upon the doctrine of collateral legal consequences, citing Koppers Indus. v. United States EPA, 902 F.2d 756, 758 (9th Cir.1990).
discussed Cited as authority (rule) In Re Establishment Inspection of Kohler Company. Appeal of Kohler Co
7th Cir. · 1991 · signal: cf. · confidence medium
Co., 608 F.2d 719 (8th Cir.1979); In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611 (1st Cir.1979); Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683 (9th Cir.1978); cf. Koppers Indus, v. ERA, 902 F.2d 756, 759 (9th Cir.1990) (challenge to EPA search held premature because administrative process incomplete).
discussed Cited "see" Ace Black Ranches, LLC v. United States Environmental Protection Agency
D. Idaho · 2021 · signal: see · confidence high
See Koppers Indus., Inc. v. E.P.A., 902 F.2d 756, 759 (9th Cir. 1990) (appeal from denial of motion to quash administrative warrant moot where warrant was fully executed prior to appeal); Massey v. Josephine Cty., 1999 WL 511266 , *1 (9th Cir. 1999) (unpublished disposition) (“Because the arrest warrant which Massey sought to have enjoined was already executed, Massey’s request for an injunction is moot.”).
cited Cited "see" Gilroy v. State of Hawaii
D. Haw. · 2020 · signal: see · confidence high
See Koppers Indus. v. U.S.E.P.A., 902 F.2d 756, 758 (9th Cir. 1990).
cited Cited "see" United States v. Hercules, LLC
S.D. Ga. · 2019 · signal: see · confidence high
See generally Koppers Indus., Inc. v. EPA, 902 F. 2d 756 , 757 n.1 (9th Cir. 1990) (discussing the various options).
cited Cited "see" ca9 2005
9th Cir. · 2005 · signal: see · confidence high
See Koppers Indus., Inc. v. U.S. E.P.A., 902 F.2d 756, 758 (9th Cir.1990).
cited Cited "see" Pilate v. Burrell
9th Cir. · 2005 · signal: see · confidence high
See Koppers Indus., Inc. v. U.S. E.P.A., 902 F.2d 756, 758 (9th Cir.1990).
cited Cited "see" United States v. Akzo Coatings of America, Inc.
6th Cir. · 1991 · signal: see · confidence high
See generally Koppers Indus., Inc. v. EPA, 902 F.2d 756 , 757 n. 1 (9th Cir.1990) (discussing the various options).
cited Cited "see" United States v. Akzo Coatings Of America, Inc.
6th Cir. · 1991 · signal: see · confidence high
See generally Koppers Indus., Inc. v. EPA, 902 F.2d 756 , 757 n. 1 (9th Cir.1990) (discussing the various options).
cited Cited "see" Coral Construction Company v. King County
9th Cir. · 1991 · signal: see · confidence high
See Koppers Indus. v. EPA, 902 F.2d 756, 758 (9th Cir.1990).
cited Cited "see" Coral Construction Co. v. King County
9th Cir. · 1991 · signal: see · confidence high
See Koppers Indus. v. EPA, 902 F.2d 756, 758 (9th Cir.1990).
discussed Cited "see" Sea-Land Service, Inc. v. International Longshoremen's & Warehousemen's Union, Locals 13, 63, & 94
9th Cir. · 1991 · signal: see · confidence high
See Koppers Indus. v. EPA, 902 F.2d 756, 758 (9th Cir.1990); see also Deakins v. Monaghan, 484 U.S. 193, 199 , 108 S.Ct. 523, 528 , 98 L.Ed.2d 529 (1988) (“Article III of the Constitution limits federal courts to the adjudication of actual, ongoing controversies between litigants.”).
discussed Cited "see" No. 90-55756
9th Cir. · 1991 · signal: see · confidence high
See Koppers Indus. v. EPA, 902 F.2d 756, 758 (9th Cir.1990); see also Deakins v. Monaghan, 484 U.S. 193, 199 , 108 S.Ct. 523, 528 , 98 L.Ed.2d 529 (1988) ("Article III of the Constitution limits federal courts to the adjudication of actual, ongoing controversies between litigants.").
cited Cited "see" State of Colorado v. Idarado Mining Company, and Third-Party v. Baumgartner Oil Company, Third-Party
3rd Cir. · 1990 · signal: see · confidence high
See generally Koppers Indus., Inc. v. United States EPA, 902 F.2d 756 , 757 n. 1 (9th Cir.1990) (discussing federal options); United States Fidelity & Guar.
cited Cited "see, e.g." Environmental Protection Information Center v. Pacific Lumber Co.
N.D. Cal. · 2006 · signal: see also · confidence medium
See also Koppers Indus., Inc. v. United States EPA, 902 F.2d 756, 758 (9th Cir.1990) (stating that the Ninth Circuit “lacks jurisdiction to hear moot cases.” (citing Bunker Ltd.
discussed Cited "see, e.g." NEW YORK CITY EMPLOYEES’ RETIREMENT SYSTEM, Plaintiff-Appellee, v. DOLE FOOD COMPANY, INC., Defendant-Appellant (2×)
2d Cir. · 1992 · signal: see also · confidence medium
“Where prompt application for a stay pending appeal can preserve an issue for appeal, the issue is not one that will evade review.” Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1016 (9th Cir.1989) (quotation and citations omitted); see also Koppers Indus., Inc. v. E.P.A., 902 F.2d 756, 759 (9th Cir.1990) (action does not evade review “where, through the party’s own failure to seek and obtain a stay, he or she has prevented an appellate court from reviewing the trial court’s decision”).
discussed Cited "see, e.g." Fairchild Semiconductor Corp. v. United States Environmental Protection Agency
N.D. Cal. · 1991 · signal: see, e.g. · confidence medium
See, e.g., Koppers Indus., Inc. v. United States Environmental Protection Agency, 902 F.2d 756, 759 (9th Cir.1990); Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1389 (5th Cir.1989): Browning-Ferris Indus.
KOPPERS INDUSTRIES, INC., Plaintiff-Appellant,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee
89-15845.
Court of Appeals for the Ninth Circuit.
May 7, 1990.
902 F.2d 756
Chester R. Babst, III, Babst, Calland, Clements & Zomnir, Pittsburgh, Pa., for plaintiff-appellant., Ellen J. Durkee, Appellate Section, Lands & Natural Resources Div., Washington, D.C., for defendant-appellee.
Wright, Hug, Leavy.
Cited by 27 opinions  |  Published
LEAVY, Circuit Judge:

Koppers Industries, Inc. (“Koppers”) appeals from the district court’s order denying its motion to quash and suppress all evidence arising from the execution of an administrative warrant issued to the Environmental Protection Agency (EPA) pursuant to section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA” or “Superfund”), 42 U.S.C. § 9604, as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”). Koppers alleges that the warrant and entry were not authorized under CERCLA and therefore violated its fourth amendment right to be free from unreasonable search and seizures. We affirm.

FACTS AND PROCEEDINGS

Koppers operates a wood-treating plant in Oroville, California. In the early 1980’s, portions of Koppers’ property were found to have releases of certain pollutants into the soil and groundwater. Pursuant to its authority under CERCLA, the EPA investigated the releases and on September 21, 1984, added the Koppers site to the National Priorities List for cleanup. [1]

On April 25, 1986, Koppers and the EPA executed an Administrative Order on Consent No. 86-04 (“Consent Order”) in which Koppers agreed to carry out a Remedial Investigation/Feasibility Study (“RI/FS”) at the plant with EPA oversite. The purpose of an RI/FS is “to determine the nature and extent of the threat presented by the release[s]” and to develop alternatives to respond to those releases. 40 C.F.R. § 300.68(d).

Starting in late 1986, the EPA informed Koppers that it was failing to sufficiently address in its RI/FS releases of air contaminants associated with its ongoing wood-treating processes. [2] The EPA undertook an investigation of the air emissions after Koppers refused to conduct the requested air emissions studies, arguing that the EPA air monitoring program was not contemplated by the Work Plan for the RI/FS or the Consent Order. Koppers allowed[*758] the EPA to collect air emission samples at the site from October 18 through October 22, 1988, and agreed to another round of air emissions sampling to commence the week of February 13, 1989. However, on February 10, 1989, Koppers informed the EPA that it would not permit further access to its facility to collect air emissions samples unless the EPA obtained a search warrant.

On February 14, 1989, the EPA applied for and obtained an ex parte administrative access warrant from a federal magistrate. The warrant was granted on the basis the EPA had “reason to believe that there has been a release of hazardous substances from the [Koppers] facility into the environment” and that air and water sampling was “necessary and appropriate in order to determine [the] nature and extent of the release, and the need for CERCLA response action.” On February 14, 1989, the EPA entered the Koppers site pursuant to the warrant and completed its air sampling program.

On February 21, 1989, Koppers filed a motion to quash the warrant and to suppress all evidence obtained thereunder. On April 7, 1989, the district court ruled that the magistrate was authorized to issue the civil warrant and that it was properly issued under the authority of CERCLA, 42 U.S.C. § 9604(e), because there was “reasonable cause to believe that there may be a release or threat of a release of a hazardous substance or contaminant.” On April 19, 1989, the district court entered an order denying Koppers’ motion to quash the warrant and to suppress all evidence obtained thereunder. Koppers timely appeals from this order.

DISCUSSION

7. MOTION TO QUASH

The EPA argues that Koppers’ appeal should be dismissed as moot because the EPA has fully executed the administrative warrant and the agency has proposed no further inspection or sampling of air emissions under section 104 of CERCLA. Thus, there is no “live controversy” between the parties — a reversal of the denial of the motion to quash will not provide Koppers with actual, affirmative relief. See B & B Chem. Co. v. United States EPA, 806 F.2d 987, 989 (11th Cir.1986).

This court lacks jurisdiction to hear moot cases. See Matter of Bunker Ltd. Partnership, 820 F.2d 308, 310 (9th Cir.1987) (citing Enrico’s, Inc. v. Rice, 730 F.2d 1250, 1253 (9th Cir.1984)). We have held that an appeal from the denial of a motion to quash an administrative warrant issued pursuant to CERCLA is moot where the warrant has been fully executed prior to the appeal. Id. at 310-11. Accordingly, Koppers’ appeal from the order denying its motion to quash is moot. Id.

This finding of “mootness” does not end our inquiry, however. We have identified several exceptions which should be considered when deciding the reviewability of an appeal that is moot. The first exception occurs where the trial court’s order will have possible collateral legal consequences. See Powell v. McCormack, 395 U.S. 486, 495-500, 89 S.Ct. 1944, 1950-53, 23 L.Ed.2d 491 (1969); Bunker Ltd. Partnership, 820 F.2d at 311. The parties in this case, however, cite no collateral continuing legal disputes to which the execution of the administrative warrant has given rise. No citations or enforcement actions have been filed against Koppers under CERCLA. Moreover, “[t]he speculative contingency that such issues might arise ‘afford[s] no basis for our passing on the substantive issues.’ ” Bunker Ltd. Partnership, 820 F.2d at 311 (quoting Burke v. Barnes, 479 U.S. 361, 107 S.Ct. 734, 737, 93 L.Ed.2d 732 (1987)).

The second exception arises where the issues involved are “capable of repetition, yet evading review.” See Southern Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Luckie v. EPA, 752 F.2d 454, 458 (9th Cir.1985). This exception is generally limited to cases in which the challenged action is too short in duration to be fully litigated prior to its cessation or expiration, and there is a reasonable expectation that the same com[*759] plaining party will be subject to the same action again. Luckie, 752 F.2d at 458 (citations omitted). This exception does not apply where, through the party’s own failure to seek and obtain a stay, he or she has prevented an appellate court from reviewing the trial court’s decision. See Bunker Ltd. Partnership, 820 F.2d at 311 (citing In re Combined Metals Reduction Co., 557 F.2d 179, 191-92 (9th Cir.1977)). Situations of that type do not by their nature evade review. Id.

The “capable of repetition, yet evading review” exception does not apply here because Koppers did not take all steps necessary to perfect the appeal and preserve the status quo before the dispute became moot. Koppers did not move to stay execution of the warrant nor did it refuse to comply with the warrant thereby risking civil contempt, but preserving the issue for appellate review. See B & B Chem. Co., 806 F.2d at 990 (citation omitted). In fact, Kop-pers did not move to quash the warrant until a full week after it had been fully executed. Moreover, even assuming Kop-pers acted diligently to preserve the issue pending appeal, the EPA represents that it has completed its air sampling and that no further tests are required. Therefore, there is no reasonable expectation the EPA will again seek to forcibly enter the Kop-pers facility to sample its air emissions. Accordingly, the exceptions to the mootness doctrine do not apply and hence we lack jurisdiction to consider this portion of Koppers’ appeal.

II. MOTION TO SUPPRESS

Koppers argues the district court erred in denying its motion to suppress the evidence obtained from the EPA air emission studies. [3] Koppers claims the EPA’s entry for the ultimate purpose of regulating its air emissions is not authorized by CERCLA and therefore violated its fourth amendment right to be free from unreasonable search and seizures.

Koppers represents that the remedy selection process for its plant is still in its final stages, with the public comment period for the RI/FS recently closing. At this time, no particular response action has been selected and no reimbursement or enforcement actions have been filed against Koppers based on the air and water studies. [4] It would therefore be premature for this court to suppress the use of the air emissions data or review the legality of a hypothetical response action, such as air emissions control, at a time when the administrative process is incomplete and its effects have not been felt by Koppers in a “concrete way.” See Trustees for Alaska v. Hodel, 806 F.2d 1378, 1381 (9th Cir.1986); see also 42 U.S.C. § 9613(h) (precludes judicial review of any challenges to the removal or remedial action selected under section 9604 until the EPA files suit for reimbursement of costs or to compel compliance with the selected response action).

AFFIRMED.

1

. CERCLA directed the EPA to develop a National Priorities List for response priority purposes. See 42 U.S.C. § 9605(a)(8)(A). After a site is placed on the National Priorities List, the EPA investigates the potential threat to the public posed by the release or threat of release of waste materials. On finding that some type of response action is necessary, the EPA has three alternatives. It may:

(1) remove the hazardous material itself or provide for other remedial action, subject to reimbursement by the responsible party, 42 U.S.C. §§ 9604, 9607;

(2) issue an administrative order, enforceable through fines of up to $5,000 per day, directing a responsible party to implement either removal or remedial action after it conducts a Remedial Investigation/Feasibility Study in accordance with section 9622, 42 U.S.C. § 9606; or

(3)apply for an injunction in the district court to compel the responsible party to clean up or abate the actual or threatened release, 42 U.S.C. § 9606.

2

. On November 17, 1986, the EPA received Kop-pers’ revised "Report of Remedial Action Objective and Potential Remedial Alternatives,” in which Koppers identified its wood treatment processes as potential sources of airborne contaminants. The Report, however, did not identify appropriate response actions for those airborne releases.

3

. Koppers admits that suppression is no longer a feasible remedy because the EPA has already released the raw data obtained from the search. Any information obtained under section 9604(e) must be made available to the public unless it is confidential business information. 42 U.S.C. § 9604(e)(7). However, Koppers argues that we should preclude the EPA's further use of this information in assessing the purported health and environmental risks from Koppers’ process source emissions and in developing controls or limits on those emissions.

4

. Koppers’ argument that the EPA is using CERCLA to circumvent the Clean Air Act is based on the assumption the EPA is sampling air emissions in order to "regulate” air emissions on a site-specific basis. Rather, the EPA sought access to the facility so that it could study the releases and, if necessary, develop a response which may or may not include additional emissions controls. It is thus completely speculative to say that the EPA will in fact attempt to limit or control Koppers’ air emissions as part of its response action.