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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1978
- **Citation:** 436 U.S. 307

## Text

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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1706%3A06. Public record. Not legal advice.