Amicus Brief — Marshall v. Barlow's, Inc.

In the Supreme Court

United States

Ocroser Term, 1976 :

No. 76-1143

Ray Marswa.x, Secretary or Lasor, et al.,

Appellants,

vs.

Bar.ow’s, Inc.,

Appellee.

On Appeal from the United States District Court for

the District of Idaho

Brief Amicus Curiae of Sierra Club; Oil, Chemical

and Atomic Workers International Union; and

Friends of the Earth in Support of Appellants

MicwHagt R. SHerwoop

Sizrra Civs Lecat Derense F'unp

311 Califernia Street. Suite 311

San Francisco, California 94104

Telephone: (415) 398-1411

Counsel for Amici

Nicno.as C. ARGUIMBAU

(On the Brief)

445 Sutter Street, Suite 501

San Francisco, California 94108

Telephone: (415) 421-4347

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, GAN FRANCISCO 84108

_ << =

SUBJECT INDEX

Page

EES A s 2

TT 2

| Summary of Argument ..0.000000000.0.. 5

| CE EEE 5

I. Warrantless Administrative Inspections as Con-

templated by See. 8(a), on the One Hand, Are

Essential to the Purposes of OSHA and Further

an Urgent Federal Interest and, on the Other

Hand, Constitute Minima! Invasions of Privacy ;

They Are Therefore Valid Under the Rationale

of United States v. Biswell, 406 U.S. 311 (1972) 5

Il. A Holding By This Court That See. 8(a) of

OSHA Is Unconstitutional Would Have a Dev-

astatiug Effect on the Federal Government's

Pollution Control and Public Health Protection

Efforts in Many Other Areas ............................... 13

CC 15

Appendix I

Appendix II

TABLE OF AUTHORITIES CITED

Cases Pages

Air Pollution Variance Board of Colorado v. Western

Alfalfa Corporation, 416 U.S. 861 (1974) —......... 6

Atlas Roofing Company v. Occupational Safety and

Health Review Commission, ...... US. ....... 97 S.Ct.

Be CSSD cermtnieteeteeiieiel 10, 11

Brennan v. Buckeye Industries, 374 F. Supp. 1350

| TY De 9

Camara v. MunicipalCourt, 387 U.S. 523 (1967) ......... 6,7

Chambers v. Maroney, 399 U.S. 42 (1970) —....... 6

Chimel v. California, 395 U.S. 752 (1969) 2.0. 6

Colonnade Catering Corporation v. United States, 397

| ee 7,9

G. M. Leasing Corporation v. United States, _.... US.

“a S ff eens 6

Harris v. United States, 331 U.S. 145 (1947) 000. 9

See v. City of Seattle, 387 U.S. 541 (1967)

Shelton v. Tucker, 364 U.S. 479 (1960) 000000.

a |

United States v. Biswell, 406 U.S. 311 (1972) ...5, 7, 8, 12,14

United States v. Chadwick, ...... US. ....., 45 U.S.L.W.

GEES CSE D cnmnsantmtinumnninnidiieiniees 6

United States v. Ramsey, ...... US. ...., 46 US.L.W.

A, eT 6

ConsTITUTION

PUD AGED cena 5, 6

Taste or Autuoriries Crrep iii

SraTuTes Pages

Clean Air Act, 42 U.S.C. § 1857 et eq. .eeecceeeennene 13,14

Federal Environmental Pesticide Contro! Act, 7 U.S.C.

OES GOD ccememenn 13

Federal Gun Control Act of 1968, 18 U.S.C. § 921

et seq. ........ 7

Federal Hazardous Substances Act, 15 U.S.C. §1261 13

Federal Water Pollution Control Act, 33 U.S.C.

§ 1251 et seq. 13,14

Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq. 12

National Environmental Policy Act, 42 U.S.C. § 4321

et seq. .. 13

Occupational Safety and Health Act, 29 U.S.C. er

et seq. ........ ....passim

Resource Conservation and Recovery Act, 42 U.S.C.

§ 6902 et seq. . 13

Safe Drinking Water Act, 42 U.S.C. § 300f et seg... 13

Toxie Substances Control Act, 15 U.S.C. § 2601

et seq. 2,12,14

Rugs

Supreme Court Rule 42(2) 1

REGULATION

29 C.F.R. § 1910.1000 et seq. 12

OrHEeR AUTHORITIES

Olpin, Policing Toxic Chemicals, 1976 Utah L.Rev. 85 12

Occupational Safety and Health Act of 1970, Hearings

before Senate Committee on Labor and public

Relations (1970) . 3

Occupational Safety and Health Act Review, Hear-

ings before Senate Committee on Labor and Public

Welfare (1974) —_ +

In the Supreme Court of the

United States

Ocrosper Term, 1976

No. 76-1143

Ray MarsHa.L, Secretary or Lasor, et al.,

Appellants,

vs.

Bariow’s, Lyc.,

Appellee.

On Appeal from the United States District Court for

the District of Idaho

Brief Amicus Curiae of Sierra Club; Cil, Chemical

and Atomic Workers International Union; and

Friends of the Earth in Support of Appellants

INTRODUCTION

This amicus curiae brief is filed on behalf of the Sierra

Club, the Oil, Chemical and Atomic Workers International

Union, and Friends of the Earth in support of the Govern-

ment’s position on appeal. Pursuant to Supreme Court Rule

42(2), consent to the filing of this brief has been given by

the parties herein. The exchange of correspondence docu-

menting such consent is on file with the Clerk of the Court.

Amicus Sierra Club, a non-profit corporation, is an inter-

national environmental and conservation organization with

approximately 175,000 members in the United States. A

stated corporate purpose of Sierra Club is “To enhance and

protect by all lawful means the natural resources and

human environment of the United States and the earth in

general.” This includes not only the natural environment,

but also the environment of the modern industrial work-

place. Sierra Club actively supported enactment of the

Occupational Safety and Health Act of 1970, 29 U.S.C.

§ 651 et seq. (OSHA), including the inspection provisions

at issue herein, and has called for stronger enforcement of

that Act. By resolutions of its Board of Directors, Sierra

Club has supported the Oil, Chemical and Atomic Workers

International Union, and other workers in their efforts to

obtain working conditions which are environmentally safe.

The decision of the three-judge district court below, if

allowed to stand, will place a serious obstacle in the way

of the Occupational Safety and Health Administration in

attempting to safeguard the environment of working

Americans. Moreover, the sweeping generality of the court’s

decision threatens the ability of federal and state regula-

tory agencies throughout the country to control air and

water pollution. Only months ago, for example, with the

active support of the Sierra Club, the Congress enacted the

Toxie Substances Control Act, 15 U.S.C. § 2601 et seq.

(1976), a central provision of which is its authorization of

warrantless inspections similar to those invalidated hy the

district court herein. See 15 U.S.C. § 2610. Similar adminis-

trative inspection provisions appear in many other major

federal environmental protection statutes the passage of

which the Sierra Club strongly favored, and the enforce-

3

ment of which the Sierra Club is closely monitoring. The

Government’s ability to implement these laws designed to

protect the public health as intended by Congress will also

be severely curtailed if the district court’s decision is

upheld, For these reasons the Sierra Club urges this Court

to uphold the inspection provisions in question here.

Amicus Oil, Chemical and Atomic Workers International

Union (OCAW) is an international trade union of approxi-

mately 200,000 members, many of whom work in the most

hazardous working environment imaginable. Due to the

prior lack of stringent regulatory monitoring of conditions

in the workplace, OCAW’s members have for decades been

subjected to hazards which are often unrecognizable except

through the advent of disease after years of latency. For

these reasons OCAW supported the enactment of the

Occupational Safety and Health Act of 1970 and has con-

sistently opposed any erosion of its enforcement provisions.

In testifying before the Senate when enactment of OSHA

was under consideration, OCAW took the position that any

bill must include “a task force of inspectors . . . to system-

atically tour plants and factories in the company of workers

and management representatives, and without warning.”

OCAW concurs with the statement of John Stender, former

assistant Secretary of Labor, that

“The inspection program alone cannot create a safe

and healthful work environment. The efforts of both

employers and employees are necessary. But inspec-

tions are a vital ingredient in bringing about such

cooperation. Prior to OSHA, insufficient progress was

made by attempts at encouraging job safety and health

solely on a voluntary basis or without adequate en-

1. Statement of Anthony Mazzocchi, hearings before the Senate

Committee on Labor and Publie Welfare, “Oeeupational Safety

and Health Act of 1970,” (1970) Part 2 at 1032.

4

forcement tools. . . . Without the possibility of first

instance sanctions and unannounced inspections, the

Act would provide little incentive for voluntary com-

pliance.”

OCAW members are frequently unaware of violations of

health standards in the plant, health standards which are

essential io protect them from cancer and debilitating

respiratory diseases. Without OSHA’s inspection pro-

cedures OCAW members would have little to protect them,

and non-member chemical workers would have less, in the

extremely hazardous environment in which they work. For

these reasons the Oil, Chemica!, and Atomic Workers have

a vital interest in this case.

Amicus Friends of the Earth, a nonprofit corporation, is

a national membership conservation group with various

branches throughout the United States. It has a member-

ship of approximately 19,000 individuals. The primary pur-

pose of Friends of the Earth is the promotion of sound

environmental and conservation principles, including the

protection of human health through proper environmental

management. In support of a safe working environment,

Friends of the Earth has worked for enactment of the

Occupational Safety and Health Act and the Toxie Sub-

stances Control Act. Friends of the Earth has been particu-

lariy concerned with hazardous materials in the workplace

and recently co-sponsored with the U. S. Environmental

Protection Agency, OCAW and others, a conference titled

“Labor Looks at an Environmental Question: Hazardous

Wastes.” Friends of the Marth is a member of the Urban

2. Statement of Assistant Seeretary of Labor, John H. Stender,

hearings before the Senate Committee on Labor and Publie Wel-

fare, “Oceupational Safety and Health Act Review,” (1974), at

223.

5

Environmental Conference, a coalition of approximately 60

labor, environmental, and civil rights groups which supports

enactment and strict enforcement of legislation to enhance

occupational health.

The Fourth Amendment does not necessarily require that

administrative regulatory inspections, or “searches,” be

conducted pursuant to a warrant; such inspections are

prohibited only if they are “unreasonable.” Routine war-

rantless inspections as contemplated by Sec. 8(a) of the

Occupational Safety and Health Act of 1970 are reasonable

under the rationale of United States v. Biswell, 406 U.S.

311 (1972) because they are essential to the purposes of

the Act and further an urgent federal interest on the one

hand and because they pose a minimal threat to legitimate

privacy expectations on the other. Additionally, a holding

by this Court that Sec. 8(a) is unconstitutional could have

a devastating effect upon the multitude of recent public

health and environmental protection statutes in which

Congress has recognized a need for similar warrantless

regulatory inspection schemes.

|. Warrantiess Administrative Inspections as Contemplated by

Sec. 8(a), on the One Hand, Are Essential to the Purposes of

OSHA and Further an Urgent Federal Interest, and on the

Other Hand, Constitute Minimal Invasion of Privacy; They Are

Therefore Valid Under the Rationale of United States v. Bisweil,

406 U.S. 311 (1972)

The Fourth Amendment to the United States Constitu-

tion® does not on its face prohibit warrantless searches, but

aS Fa EE wees 0 ae

ae t of t to secure in persons,

houses, papers, and effects, against unressonable searches and

6

only “unreasonable” searches. See, most recently, United

States v. Chadwick, —.... US. ....., ...... 4 US.L.W. 4797,

4799 (June 21, 1977). This Court has, however, frequently

interpreted the constitutional language so as to render war-

rantless searches presumptively unreasonable, and there-

fore unconstitutional, in all but “certain carefully defined

classes of cases.” Camara v. Municipal Court, 387 U.S. 523,

528-9 (1967); G.M. Leasing Corp. v. United States, ... US.

— , ---» 97 S.Ct. 619, 628-9, 631 (1977). Those classes of

cases which constitute exceptions to the general rule that

warrantless searches are “unreasonable” include, for

example, border searches, United States v. Ramsey, .....

a » ----y 45 U.S.L.W. 4577, 4579-80 (June 6, 1977);

automobile searches, Chambers v. Maroney, 399 U.S. 42,

46-52 (1970); searches made incident to a valid arrest,

Chimel v. California, 395 U.S. 752, 762-3 (1969); and

searches where the object of the search is in “plaia view”

and/or the search is made in the “open fields,” Air Pollw-

tion Variance Board of Colorado v. Western Alfalfa Corp.,

416 U.S. 861, 864-5 (1974).

Amici submit that this case falls within another such

“class of cases,” to wit, administrative regulatory inspec-

tions of commercial and industrial structures intended to

ensure compliance with statutes designed to protect the

public health, where a warrant requirement would frustrate

the purposes of the statute. In this class of cases, the Court

has adopted a case by case balancing approach to determine

whether the Fourth Amendment mandates a warrant,

seizures, shall not be violated, and no warrants shal! issue, but

upon probable cause, supported by oath or affirmation, and

particularly describing the to be searched, and the

persons or things to be seized.”

7

balancing the urgency of the federal interest sought to be

furthered by the warrantless inspection provision and the

degree to which this interest would be frustrated by a war-

rant requirement, on the one hand, and the potential for

abuse and the threat to legitimate privacy expectations

posed by the provision on the other. United States v. Bis-

well, 406 U.S. 311, 316-317 (1972). See also Camara v. Muni-

cipal Court, 387 U.S. 523, 533 (1967) ; See v. City of Seattle,

387 U.S. 541, 546 (1967); Colonnade Catering Corp. v.

United States, 397 U.S. 72, 77 (1970).

In the companion cases of Camara and See, supra, the

first to deal squarely with this issue, the Court found that

the balance tilted towards requiring a warrant for routine

administrative inspections by city officials for possible vio-

lations of suwunicipal housing and fire codes. This was be-

cause, as the Court stated,

“It has nowhere been urged that fire, health, and hous-

goals within the confines of a reasonable search war-

rant requirement.” Camara, supra, at 387 U.S. 533.

In the more recent decision of United States v. Biswell,

406 U.S. 311 (1972), on the other hand, the Court with but

one dissent, and by the same author as in Camara and See

(Mr. Justice White) upheld as reasonable within the mean-

ing of the Fourth Amendment the warrantless inspection

of business premises pursuant to the Federal Gun Control

Act of 1968, 18 U.S.C. § 921 et seq. The Court elaborated

upon its prior conclusion that the regulatory schemes in

Camara and See could be reasonably enforced within the

context of a warrant requirement:

“In See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737,

18 L.Ed.2d 943 (1967), the mission of the inspection

system was to discover and correct violations of the

8

building code, conditions that were relatively difficult

to conceal or to correct in a short time. Periodic in-

spection sufficed, and inspection warrants could be re-

quired and privacy given a measure of protection with

little if any threat to the effectiveness of the inspec-

tion system there at issue.”

United States v. Biswell, supra, at 406 U.S. 316.

With respect to the Gun Control Act, however, the Court

found that

“It is ... apparent that if the law is to be properly

enforced and inspection made effective, inspections

without warrant must be deemed reasonable official

conduct under the Fourth Amendment.” Ibid.

In reaching this result, the Court paid great deference to

the “Congressional Findings and Declaration, Nwt« preced-

ing 18 U.S.C. § 922,” which indicated that

“close scrutiny of this [gun] traffic is undeniably of

central importance to federal efforts to prevent violent

crime and to assist the States in regulating the fire-

arms traffic within their borders. . . . Large interests

are at stake, and inspection is a crucial part of the

regulatory scheme .. .” Jd. at 406 U.S. 315.

The Court emphasized that

“Here, if inspection is to be effective and serve as

a credible deterrent, unannounced, even frequent, in-

spections are essential. In this context, the prerequisite

of a warrant could easily frustrate inspection; and if

the necessary flexibility as to time, scope, and fre-

quency is to be preserved, the protections afforded

by a warrant would be negligible.”,

406 U.S. 315, and concluded:

“We have little difficulty in concluding that where,

as here, regulatory inspections further urgent federal

interest, and the possibilities of abuse and the threat

9

to privacy are not of impressive dimensions, the in-

spection may proceed without a warrant where spe-

cifically authorized by statute.”

Id. at 406 U.S. 317.4 See also Colonnade Catering Corp. v.

United States, 397 U.S. 72 (1970).

With respect to Sec. 8(a) of OSHA, 29 U.S.C. § 657(a),°

each of the pertinent factors identified in Biswell is pres-

ent: an “urgent federal interest” that would be frustrated

by a warrant requirement and the need for “unannounced,

even frequent, inspections” to ensure compliance with the

statutory goals on the one hand, and minima! possibilities

of abuse and threat to the businessman’s privacy* on the

other.

As in the case of the Gun Control Act, Congress has

expressly set forth the urgent federal interest in maintain-

4. In light of this Court’s recognition, with which Amici

heartily agree, that the rights protected by the Fourth Amendment

ee ee ee Ol an ae Can) Bee

Harris v. United States, 331 U.S. 145, 150 (1947), Biswell may do

no more than state the well-known rule that a compelling govern-

mental interest may justify infringement of the warrant require-

ment when there are no “less drastic means for achieving the same

basic purpose.” Shelton v. Tucker, 364 U.S. 479, 488 (1960). As

discussed in the text, the circumstances that led Congress to enact

See. 8(a) of the Occupational Safety and Health Act justify the

Court in upholding See. 8(a) under that standard as well.

5. Section 8(a) is set out in full in Appendix I.

6. Section 8(a) does not give the compliance officer unlimited

authority to search the private recesses of a businessman's office.

Rather, By HAE pe Fe A- —h

by an employee of

an employer” (emphasis supplied). Nor does See. 8(a) the

Seaendl ecoet exibutin 0 auihds ont Cidtatiane of Yims than

federal safety and health regulations. See Brennan v. Buckeye In-

dustries, 374 F. Supp. 1350, 1354 (S.D. Ga. 1974). Whether the

officer could constitutionally use an OSHA inspection as a pretense

to search for evidence of violent crime, tax fraud, or manufacture

of contraband, for instance, is not before the Court in this case.

10

ing safe and healthful working environments in OSHA

itself :

“(a) The Congress finds that personal injuries and

illnesses arising out of work situations impose a sub-

stantial burden upon, and are a hindrance to, inter-

state commerce in terms of lost production, wage loss,

medical expenses, and disability compensation pay-

ments.

“(b) The Congress declares it to be its purpose and

policy ... to assure so far as possible every working

man and woman in the Nation safe and healthful work-

ing conditions and to preserve our human resources—

..-” 29 U.S.C. § 651.

This Court has recently had occasion to refer to this

urgent federal interest by noting that “After extensive in-

vestigation, Congress concluded, in 1970, that work-related

deaths and injuries had become a ‘drastic’ national prob-

lem.” Atlas Roofing Co., Inc. v. Occwpational Safety and

Health Review Commission, ...... U.S. ......, ......, 97 8.Ct. 1261,

1263 (1977). What Congress hoped to remedy in enacting

OSHA is grimly summed up in the Senate Report, quoted

by the Court in Atlas Roofing as follows:

“The problem of assuring safe and healthful work-

places for our working men and women ranks in im-

portance with any that engages the national attention

today... . 14,500 persons are killed annually as a result

of industrial accidents; accordingly, during the past

four years more Americans have been killed where

they work than in the Vietnam war. By the lowest

count, 2.2 million persons are disabled on the job each

year, resulting in the loss of 250 million man days of

work—many times more than are lost through strikes.

In addition to the individual human tragedies involved,

the economic impact of industrial deaths and disability

is staggering. Over $1.5 billion is wasted in lost wages,

ll

and the annual loss to the Gross National Product is

estimated to be over $8 billion. Vast resources that

could be available for productive use are siphoned off

to pay workmen's coinpensation benefits and medical

expenses. This ‘grim current scene’. . . represents a

worsening trend, for the fact is that the number of dis-

abling injuries per million man hours worked is today ~

20% higher than in 1958.” S.Rep.No. 91—1282, 91st

Cong., 2d Sess., 2 (1970); Leg.Hist. 142 U.S. Code

Cong. & Admin.News 1970, pp. 5177, 5178. See also

H.R.Rep.No.91—1291, Q9ist Cong. 2d Sess. 14-15

(1970); Leg.Hist. 844-845 (“The issue of the health

and safety of the American working man and woman

is the most crucial one in the whole environmental

question .. . the worst problem confronting American

workers”).

Id, at 97 S.Ct. 1263, n. 1.

In Atlas Roofing, the Court unanimously (Justice Black-

mun not participating) upheld the civil penalty fact-finding

provisions of OSHA as against a claim that they contra-

vened the Seventh Amendment’s right to jury trials in

“suits at common law.” The Court made but passing refer-

ence to Sec. 8(a) in deseribing the statutory scheme. Jd. at

97 S.Ct. 1264.

To understand the practical problems involved in the

regulation of conditions affecting workers’ health and

safety, it is necessary to look in some detail at the nature

of the hazards regulated by OSHA. Many of these hazards

cannot readily be discovered by non-technical workers. It

has been estimated that more than seven million workers

are exposed to toxic substances regulated by OSHA. These

substances are often contained in products sold under trade

names; it is thus impossible for the workers to be aware

12

of the ingredients.’ Hundreds of chemicals are regulated

by OSHA, many considered hazardous at concentrations as

low as 0.025 parts per million. See 29 C.F.R. § 1910.1000

et seq. Many of these chemicals are “stable, persistent and

insidious, with harmful health effects surfacing after long

periods of latency.”* Under such circumstances it cannot

be expected that without the aid of technically competent

inspectors any but the most blatant, visible violations of

regulations will be discovered by the potential victims

thereof.

Were OSHA to depend solely upon worker complaints or

upon probable cause to justify inspections, the serious haz-

ards which modern chemistry has released into the work-

places of the nation would too often go undetected until

disastrous consequences were felt.* A general requirement

of probable cause or dependence upon employee complaints

would leave vast areas of legitimate concern virtually barred

to OSHA inspectors, because modern occupational hazards

ean be subtle and insidious. In order to effectuate the pur-

poses of the Act, therefore, the Occupational Safety and

Health Administration must be allowed to rely on “un-

announced, even frequent” warrantless inspections and

spot-checks, Biswell, supra, at 406 U.S. 316, as sanctioned

by the Congress in Sec. 8(a).

7. John Finkles, Director of the National Institute for Occupa-

tional Safety and Health, in the Wall Street Journal, April 28,

1977, at 77.

8. Olpin, “Policing Toxie Chemicals,” 1976 Utah L. Rev. 85, 87.

9. ee eee new

substance has been recognized by in the area of drugs for

many years, see Food, Drug and Cosmetic Act, 21 on aor

et seq., 355, and more recently in the area of toxie substances.

Substances Control Act, 15 U.S.C. § 2601 et seq.

—_—_—

a3

13

il. A Holding by This Court That Sec. 8(a) of OSHA Is Uncon-

stitutional Would Have a Devastating Effect on the Federal

Government's Pollution Control and Public Health Protection

Efforts in Many Other Areas.

In the relatively few years of heightened national en-

vironmental consciousness since the President signed into

law the National Environmental Policy Act (NEPA), 42

U.S.C. § 4321, et seq., on January 1, 1970, the Congress

has enacted an imposing array of comprehensive statutes

designed to protect the public health and welfare from

further industrial pollution of the human environment.

These include the Clean Air Act of 1970, 42 U.S.C. § 1857

et seq.; the Federal Water Pollution Control Act of 1972,

33 U.S.C. § 1251 et seq.; the Federal Environmental Pesti-

cide Control Act of 1972, 7 U.S.C. § 136 et seq.; the Safe

Drinking Water Act of 1974, 42 U.S.C. § 300f et seq.; the

Resource Conservation and Recovery Act of 1976, 42

U.S.C. § 6902 et seq.; and the Toxie Substances Control

Act of 1976, 15 U.S.C. § 2601 et seq. See also the earlier

Federal Hazardous Substances Act of 1960, 15 U.S.C.

§ 1261 et seq.

Each one of these statutes provides for warrantless

administrative inspections of the particular industry or

industries regulated thereby as a central mechanism of

ensuring achievement of the statutory goals. The pertinent

sections of each Act are set out in full in Appendix TI.

These provisions in each case are substantially similar to

those contained in Sec. 8(a) of OSHA. See, ¢.g., Clean Air

Act, 42 U.S.C. §§ 1857e-9; 1857f-5; Federal Water Pollu-

tion Control Act, 33 U.S.C. § 1318; Toxie Substances Con-

trol Act, 15 U.S.C. § 2610. Most of these statutes also

typically begin, as do OSHA and the Federal Gun Control

Act at issue in Biswell, with a Congressional declaration

14

expressing the urgent federal interest sought to be achieved

by the statute in general, and by implication the warrantless

inspection provisions in particular. E.g., Clean Air Act,

42 U.S.C. § 1857; Federal Water Pollution Control Act,

33 U.S.C. § 1251; Toxie Substances Control Act, 15 U.S.C.

~ § 2601.

Of course none of these statutes is before this Court in

this case, and Amici do not propose to engage in any

further individual analysis thereof. The point we wish to

urge on the Court is simply that if the Court upholds the

district court’s sweeping decision in this case, it would be

difficult to see how such a ruling would not severely weaken

an enormous number of criticaily important federal statutes

in the environmental and public health field.

Nor do we mean to suggest that warrants should never

he required for administrative inspections under environ-

mental and public health protection statutes: we urge,

rather, that whether the Fourth Amendment requires a

warrant in this particular “class of cases” will turn upon

a case-by-case factual analysis balancing the factors articu-

lated in United States v. Biswell, supra, and discussed

above.

15

CONCLUSION

The judgment of the district court declaring Sec. 8(a) of

the Occupational Safety aud Health Act to be unconstitu-

tional should be reversed.

Respectfully submitted,

July 1, 1977

Micnart R. SHerwoop

Srerra Cius Lecat Derense Funp

311 California Street, Suite 311

San Francisco, California 94104

Telephone: (415) 398-1411

Counsel for Amici

Nicno.as C. ArGurimBau

(On the Brief)

445 Sutter Street, Suite 501

San Francisco, California 94108

Telephone: (415) 421-4347

Appendix I

Safety and Health Act,

29 U.S.C. § 651 et seq.

29 U.S.C. § 657(a):

(a) In order to carry out the purposes of this chap-

ter, the Secretary, upon presenting appropriate creden-

tials to the owner, operator, or agent in charge, is

authorized—

(1) to enter without delay and at reasonable

times any factory, plant, establishment, construction

site, or other area, workplace or environment where

work is performed by an employee of an employer;

and

(2) to inspect and investigate during regular

working hours and at other reasonable times, and

within reasonable limits and in a reasonable manner,

any such place of employment and all pertinent con-

ditions, structures, machines, apparatus, devices,

equipment, and materials therein, and to question

privately any such employer, owner, operator, agent

or employee.

Appendiz

Appendix II

Clean Air Act of 1970,

42 U.S.C. § 1857 et seq.

42 U.S.C. § 1857¢-9(a):

“For the purpose ... of determining whether any

person is in violation of any such standard or any

requirement of such a plan,

“(2) the Administrator or his authorized repre-

sentative, upon presentation of his credentials—

(A) shall have a right of entry to, upon, or

through any premises in which an emission source

is located or in which any records required to be

maintained under paragraph (1) of this section are

located, and

(B) may at reasonable times have access to and

copy any records, inspect any monitoring equipment

or method required under paragraph (1), and sample

any emissions which the owner or operator of such

source is required to sample under paragraph (1).”

42 U.S.C. § 1857f-5(e):

“For purposes of enforcement of this section, officers

or employees duly designated by the Administrator,

upon presenting appropriate credentials to the manu-

facturer or person in charge, are authorized (1) to

enter, at reasonable times, any plant or other estab-

lishment of such manufacturer, for the purpose of con-

ducting tests of vehicles or engines in the hands of

the manufacturer, or (2) to inspect at reasonable times,

records, files, papers, processes, controls, and facilities

used by such manufacturer in conducting tests under

regulations of the Administrator. Fach such inspection

shall be commenced and completed with reasonable

promptness.”

Appendiz 3

Federal Water Pollution Control Act of 1972,

33 U.S.C. § 1251 et seq.

33 U.S.C. § 1318(a):

“Whenever required to carry out the objective

of this chapter, including but not limited to . . . deter.

mining whether any person is in violation of any such

effluent limitation, or other limitation, prohibition or

effluent standard, pretreatment standard, or stand.ed

of performance...

“(B) the Administrator or his authorized represent-

ative, upon presentation of his credentials—

(i) shall have a right of entry to, upon, or

through any pren.ses in which an effluent source

is located or in which any records required to be

maintained under clause (A) of this subsection are

located, and

(ii) may at reasonable times have access to and

copy any records, inspect any monitoring equipment

or method required under clause (A), and sample

any effluents which the owner or operator of such

source is required to sample under such clause.”

Federal Safe Drinking Water Act of 1974,

42 U.S.C. § 300f et. seq.

42 U.S.C. § 300}-4(b) (1):

“Except as provided in paragraph (2), the Admin-

istrator, or representatives of the Administrator duly

designated by him, upon presenting appropriate cre-

dentials and a written notice to any supplier of water

or other person subject to a national primary drinking

water regulation prescribed under section 300g—1 of

this title or applicable underground injection control

program (or person in charge of any of the property

of such supplier or other person), is authorized to

enter any establishment, facility, or other property

of such supplier or other person in order to determine

Appendiz

whether such supplier or other person has acted or is

acting in compliance with this subchapter, including

for this purpose, inspection, at reasonable times, of

records, files, papers, processes, controls, and facilities,

or in order to test any feature of a public water system,

including its raw water source.”

Federal Environmental Pesticide Control Act of 1972,

7 U.S.C. § 136 et seq.

7 U.S.C. § 136g(a) :

“For purposes of enforcing the provisions of this

subchapter, officers or employees duly designated by

the Administrator are authorized to enter at reason-

able times, any establishment or other place where

pesticides or devices are held for distribution or sale

for the purpose of inspecting and obtaining samples

of any pesticides or devices, packaged, labeled, and

released for shipment, and samples of any containers

or labeling for such pesticides or devices.

Before undertaking such inspection, the officers or

employees must present to the owner, operator, or

agent in charge of the establishment or other place

where pesticides or devices are held for distribution

or sale, appropriate credentials and a written state-

ment as to the reason for the inspection, including a

statement as to whether a violation of the law is sus-

pected. If no violation is suspected, an alternate and

sufficient reason shall be given in writing. Fach such

inspection shall be commenced and completed with

reasonable promptness. If the officer or employee ob-

tains any samples, prior to leaving the premises, he

shall give to the owner, operator, or agent in charge

a receipt describing the samples obtained and, if re-

quested, a portion of each such sample equal in volume

or weight to the portion retained. If an analysis is

made of such samples, a copy of the results of such

analysis shall be furnished promptly to the owner,

operator, or agent in charge.”

Appendiz 5

Resource Conservation and Recovery Act of 1976,

42 U.S.C. § 6901 et seq.

42 U.S.C. § 6927(a):

“For purposes of developing or assisting in the de-

velopment of any regulation or enforcing the provi-

sions of this subchapter, any person who generates,

stores, treats, transports, disposes of, or otherwise

handles hazardous wastes shall, upon request of any

otheer or employee of the Environmental Protection

Agency, duly designated by the Administrator, or upon

request of any duly designated officer employee of a

State having an authorized hazardous waste program,

furnish or permit such person at all reasonable times

to have access to, and to copy all records relating to

such wastes. For the purposes of developing or assist-

ing in the development of any regulation or enforcing

the provisions of this chapter, such officers or employ-

ees are authorized—

(i) to enter at reasonable times any establish-

ment or other place maintained by any person where

hazardous wastes are generated, stored, treated, or

disposed of ;

(2) to inspect and obtain samples from any per-

son of any such wastes and samples of any contain-

ers or labeling of such wastes.

Each such inspection shall be commenced and com-

pleted with reasonable promptness. If the officer or

employee obtains any samples, prior to leaving the

premises, he shall give to the owner, operator, or agent

in charge a receipt describing the sample obtained and

if requested a portion of each such sample equal in

volume or weight to the portion retained. If any analy-

sis is made of such samples, a copy of the results of

such analysis shall be furnished promptly to the owner,

operator, or agent in charge.”

Appendiz

Toxic Substances Control Act of 1976,

15 U.S.C. § 2601 et seq.

15 U.S.C. § 2610:

“For purposes of administering this chapter, the

Administrator, and any duly designated representative

of the Administrator, may inspect any establishment,

facility, or other premises in which chemical sub-

stances or mixtures are manufactured, processed,

stored or held before or after their distribution in

commerce and any conveyance being used to transport

chemical substances, mixtures or such articles in con-

nection with distribution in commerce. Such an inspec-

tion may only be made upon the presentation of appro-

priate credentials and of a written notice to the owner,

operator, or agent in charge of the premises or convey-

ance to be inspected. A separate notice shall be given

for each such inspection, but a notice shall not be re-

quired for each entry made during the period covered

by the inspection. Each such inspection shall be com-

menced and completed with reasonable promptness

and shall be conducted at reasonable times, within rea-

sonable limits, and in a reasonable manner.

(b) Seope.—(1) Except as provided in paragraph

(2), an inspection conducted under subsection (a) of

this section shall extend to all things within the prem-

ises or conveyance inspected (including records, files,

papers, processes, controls, and facilities) bearing on

whether the requirements of this chapter applicable

to the chemical substances or mixtures within such

premises or conveyance have been complied with.

(2) No inspection under subsection (a) of this sec-

tion shall extend to—

(A) financial data,

(B) sales data (other than shipment data),

(C) pricing data,

(D) personnel data, or

(EF) research data (other than data required by

this chapter or under a rule promulgated there-

under),

e'

Appendix 7

unless the nature and extent of such data are described

with reasonable specificity in the written notice re-

quired by subsection (a) of this section for such in-

spection.

Federal Hazardous Substances Act of 1960,

15 U.S.C. § 1261 et seq.

15 U.S.C. § 1270:

“(a) The Secretary is authorized to conduct ex-

aminations, inspections, and investigations for the

purposes of this chapter through officers and employees

of the Department or through any health officer or

employee of any State, territory, or political subdivi-

sion thereof, duly commissioned by the Secretary as an

officer of the Department.

(b) For purposes of enforcement of this chapter,

officers or employees duly designated by the Secre-

tary, upon presenting appropriate credentials and a

written notice to the owner, operator, or agent in

charge, are authorized (1) to enter, at reasonable

times, any factory, warehouse, or establishment in

which hazardous substances are manufactured, proc-

essed, packed, or held for introduction into interstate

commerce or are held after such introduction, or to

enter any vehicle being used to transport or hold such

hazardous substances in interstate commerce; (2) to

inspect, at reasonable times and within reasonable

limits and in a reasonable manner, such factory, ware-

house, establishment, or vehicle, and all pertinent

equipment, finished and unfinished materials, and label-

ing therein; and (3) to obtain samples of such mate-

rials or packages thereof, or of such labeling. A

separate notice shall be given for each such inspection,

but a notice shall not be required for each entry made

during the period covered by the inspection. Each such

inspection shall be commenced and completed with rea-

sonable promptness.

. Appendix

(c) If the officer or employee obtains any sample,

prior to leaving the premises, he shall give to the

owner, operator, or agent in charge a receipt describ-

ing the samples obtained. If an analysis is made of

such sample, a copy of the results of such analysis

shall be furnished promptly to the owner, operator, or

agent in charge.”