Amicus Curiae Brief — Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp.

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_ SUPREME COURT, U. 8S.

——

| SUPREME COURT OF THE—

| UNITED STATES

CASE NO. 73-690

ATR POLLUTION VARIANCE BOARD

OF THE STATE OF COLORADO,

Petitioner,

vs.

i WESTERN ALFALFA CORPORATION,

Respondents.

AMICUS CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

STATE OF ARKANSAS

Jim Guy Tucker

General

Justice yr

Little Rock, Ar 72201

STATE OF RHODE ISLAND

Richard J. Israel

County Courthouse

Providence, Rhode Island 02903

STATE OF MICHIGAN

Frank J. Kelley

Law Bul

Lansing, 48902

gy a

juncey . J.

General .

State .

West Virginia 25305

STATE OF i. —

General

State

Lincoln, Nebraska 68509

oar oF ban

erggn 5. omney

General

State

Salt Lake City, Utah 84114

STATE OF SOUTH CAROLINA

Dani

STATE OF ARIZONA

Gary K. Nelson

Room te, Sates

Phoenix, ‘ntisona S007

STATE OF GEORGIA

Arthur K. Bolton

132 State Judicial Building

Atlanta, Georgia 303s

STATE OF NORTH CAROLINA

Robert Morgan

Attorney General

ogg EE

North Carolina 27602

STATE OF NEVADA

Robert List

Carson City, evade esol

EASTWOOD PRINTING CO. ® 2854 LARIMER STREET ® DENVER, COLORADO

hie on get or eae

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INDEX PacE

I. INTROUCTION 1

46 #

qd <

A. THB COURT’S HOLDING

B. THE INTEREST OF THE STATES

NAMED HEREIN 2-3

C. THE ADVERSE EFFECT OF THE

COURT’S DECISION 3-4

JURISDICTIONAL GROUNDS 4-5

QUESTIONS PRESENTED ..... 5

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 5-7

STATEMENT OF THE CASE W000... 7-9

ARGUMENT IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI 9

A. THE SEARCH WAS NOT

UNREASONABLE 9-14

B. THE INSPECTOR HAD PROBABLE

CAUSE TO TAKE THE OPACITY

READINGS WHICH HE OBSERVED 14-15

C. WESTERN ALFALFA WAS NOT

DENIED ITS RIGHTS OF CON-

FRONTATION BEFORE THE AIR

POLLUTION VARIANCE BOARD BE-

CAUSE THE INSPECTOR APPEAR-

ED, TESTIFIED, AND WAS SUBJECT

TO CROSS-EXAMINATION. ................ 15-17

CONCLUSION 17-18

APPENDIX A—Opinion of the Colorado

te.

Court of Appeals dated April 3, 1973

OT LE OT ES TRE PNET ORRIN FGF ORI AEE LS POR ANTE, oF

me THES

INDEX (Continved’) PacE

B—Order of the Suprerae Court of the

State of Colorado dated June 25,

1973

C—Mandate of the Colorado Court of

Appeals dated June 26, 1973

D—Decision of Air Pollution Variance

Board entered January 31, 1970

CASES CITED

Air Pollution Variance Board of the State of Colora-

do v. Western Alfalfa Corporation, Case No. 7+

494, 510 P.2d 907 (1973 1, 7

California v. Green, 399 U.S. 149 (1970) 17

Camar v. Municipal Court, 387 U.S. 523, ‘87 8.C€.

1737, 18 L.Ed.2d 943 (1967) : 9, 14

City of Seatte, 387 U.S. 541, 87 S.Ct. 1727, 18 L.Ed.

930: 11, 14

Fry Roofing Company v. State Department of Health

et al., —— Colo. ——, 499 P.2d 1176 (1972) ............ 9

Fullbright v. United States, 392 F.2d 432 (1968) ........ 10

Goldberg v. Kelly, 397 U.S. 254 (1970) ...... 16

Greene v. McElroy, 360 U.S. 474 (1959): ; 16

Hester v. United States, 265 U.S. 57 (1924) 000... 9

Jenkins v. McKeithen, 395 U.S. 411 (1969)... 17

Katz v. United States, 389 U.S. 347 (1967) ~......... 10,114, 12

Mancusi v. Deforte, 392 U.S. 364 (1968) .......... weve 13

Nelson v. O’Neil, 402 U.S. 622 (1971) 17

INDEX (Continued) . Pace

United States v. Biswell, 406 U.S. 311, 92 S.Ct. —,

32 L.Ed.2d 87 (1972) 13

United States v. Capps, 435 F.2d 637 (9th Cir. 1970)... 11

United States v. Litvin, 353 F.Supp. 1333 (D.D.C.

1973) 15

United States v. Morton Salt Company, 338 U.S. 632

(1950) 13

United States v. Schafer, 461 F.2d 856 (9th Cir. 1972) 17

Willner v. Committee on Caracter and Fitness, 373

U.S. 96 (1963) 14

STATUTES CITED

C.R.S. 1963, 66-29-5 (1967 Perm. Cum. Supp.) .......... ‘j

66-29-5(2) and (15) (1967 Perm. Cum.

Supp.) 15

66-29-8 (1969 Perm. Cum. Supp.) ............ 6

66-29-12 (1967 Perm. Cum. Supp.) ........ 17

OTHER AUTHORITIES

Air Pollution Control Act of the State of Colorado... 6

Federal Clean Air Act, 42 U.S.C.

Section 1857 (Section 114 of the Act)

Section 101 (a) (3)

Section 111 (c) (13)

Sectionl112 (d) (1)

Section 114 (a) (2)

Fourth Amendment to the United States Constitution

Title 28, U.S. Code, Section 1257 5, 9, 10

Sixth Amendment to the United States Constitution.. 16

Fourteenth Amendment to the United States Consti-

tution 6, 16

wowwhs od

wot

I. INTRODUCTION

The States appearing as signatories here on this

amicus curiae brief respectfuly request this Court to

issue its writ of certiorari to review the judgment and

opinion of the Colorado Court of Appeals in the case of

Air Pollution Variance Board of the State of Colorado

vs. Western Alfalfa Corporation Case No. 71-494, 510

P.2d 907 (1973). Petition for certiorari was denied by the

Supreme Court of Colorado on June 25, 1973. The peti-

tion for writ of certiorari was filed with this Court on or

about October 23, 1973 by the Attorney General of the

State of Colorado.

Y

Lae SNS NOON SeV INE UREN UR RCM NS FEN ON Oi ROE RS REN AIT Neha —

2

A. THE COURT’S HOLDING

The Colorado Court of’ Appeals held that a field in-

spector of the State Department of Health (Division)

a an unreasonable search in violation of the

Fou Amendment of the United States Constitution

when, under specific statutory authorization, he entered

upon the premises of an industrial plant, without notifi-

cation to company personnel, for the purpose of testing for

compliance with air pollution control laws by recording

visible readings of smoke plumes which were being dis-

charged into the atmosphere. \The Court further held

that a commercial enterprise which was not notified that

tests and measurements were being made for the purpose

of determining compliance, so that it could have an ob-

server present, were denied the effective exercise of its

rights of confrontation at the hearing before the Vari-

ance Board.

B. THE INTEREST OF THE STATES

NAMED HEREIN

The states named herein have statutory inspection

schemes for the enforcement of air pollution laws similar

to those existing in the State of Colorado. If the decision

of the Colorado Court of Appeals is allowed to stand, it

would place significant restrictions upon the ability of

the States to carry out the inspection, monitoring, and

testing procedures of the various Air Pollution Control

Acts in the respective States, resulting in a diminution

of the deterrent and control functions of said Acts.

Section 101(a)(3) of the Clean Air Act passed by

Congress contains a congressional finding that:

The prevention and control of air pollution at its source is

the primary responsibility of States and local governments.

Each State is required to submit for the Administra-

tor’s approval implementation plans which are adequate

to attain and maintain the national primary and secon-

dary ambient air quality standards.

-- Primary standards are those which are requisite to

protect the public health. Secondary standards are those

necessary to protect the public welfare.

The State implementation plans must contain ade-

quate testing, monitoring, and enforcement procedures

before the Administrator may enforce the provisions of

an approved State implementation plan, but the Act en-

visions that the State will enforce its own laws and reg-

ulations without the necessity of federally-assumed en-

forcement. Besides developing plans for bringing exist-

ing emission forces into compliance, the States may de-

sign procedures for controlling emissions from new sta-

tionary sources and sources which emit hazardous air pol-

lutants.. If these procedures are deemed adequate, the

Administrator is authorized to delegate to the State any

enforcement authority he has under the Act (Section

111 (c) (13); Section 112 (d) (1)).

A foremost enforcement tool which the Act confers

on the Administrator or his authorized representative is

the Section 114(a)(2) right of entry onto any premises on

which an emission source is located so that he may sample

emissions, inspect monitoring equipment or methods, or

copy records in order to ascertain compliance with federal

clean air standards or the provisions 6f federally-

approved State implementation plans.

C. THE ADVERSE EFFECT OF

THE COURT’S DECISION

The decision of the Colorado Court of Appeals re-

quires the responsible State agencies to obtain search war-

rants before the premises can be entered without consent.

In addition, the decision requires that the State inspector

notify the owner or operator of an emission source when

testing for compliance, even when the inspector does not

enter the premises.

In holding that the company’s rights of confrontation

are denied unless it is provided the opportunity to have

an observer at the scene of the test, the Colorado Court

has abrogated the federal and state statutory right of

entry and has undermined the deterrent effect of an un-

announced inspection. Moreover, the rationale of this

holding requires that all administrative agencies, whatever

their function, assure that the subject of an investigation

has the opportuniy to be present or have an observer

present whenever a test is conducted or evidence is

gathered for the purpose of ascertaining compliance with

standards designed to protect the public health or welfare.

Such a requirement would greatly impair the effective-

ness of a control agency.

II. JURISDICTIONAL GROUNDS

Jurisdiction of this Court is invoked pursuant to

28 U.S.C. 1257(3). The decision of the Colorado Court

of Appeals was based solely and entirely upon the Fourth

and Fourteenth Amendments of the Constitution of the

United States.

The Colorado Court of Appeals rendered its decision

on April 3, 1973, a copy of which decision is attached as

Appendix A. A Petition for Rehearing was timely filed

and denied by the Colorado Court of Appeals in April

24, 1973. A Petition for Writ of Certiorari was timely

5

filed with the Supreme Court of Colorado and was denied

by that Court on June 25, 1973, a copy of said order is

attached hereto as Appendix B. Mandate was issued by

the Colorado Court of Appeals by order dated June 26,

1973, a copy of which is attached hereto as Appendix C.

The decision of the Air Pollution Variance Board, dated

January 31, 1970, is attached hereto as Appendix D.

III. QUESTIONS PRESENTED

1, Does a field inspector for a State Department of

Health conduct an unreasonable search in violation of the

Fourth Amendment when, pursuant to specific statutory

authority, he enters upon commercial premises and, with-

out notification to plant operators, takes visual readings

of a smoke plume being discharged into the atmosphere,

for the purpose of ascertaining compliance with State

air pollution laws?

2. Is the owner or operator of an emission source

denied his Fourteenth Amendment rights of confrontation

before an air pollution board if he is not provided the

opportunity to have an observer present when tests or

measurements are made for the purpose of ascertaining

compliance with air pollution laws?

¥V. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fourth Amendment to the United States Con-

stitution provides that:

The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and sei-

zures, shall not be violated and no warrants shall issue,

but upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and the

persons or things to be seized.

2. The Fourteenth Amendment to the United States

Constitution provides in pertinent part that:

(n] or shall any state deprive any person of life, liberty, or

property without due process of law, .. .

3. Colorado Revised Statutes, 1963, Section 66-29-8,

(1967 Perm. Cum. Supp.) provided in pertinent part

that:

In addition to authorities specified elsewhere in this Act,

the Division shall have the power to:

(d) enter and inspect any property, premise, or place for

any order under this Article. Any information relating to sec-

ret process, or methods of manufacture, or production obtain-

ed in the course of i tion or investigation shall be kept

confidential. If samples of air or air contaminants are taken

for analysis, a duplicate of the analytical report shall be

furnished promptly to the person who is suspected of caus-

ing such air pollution or air contamination. (Emphasis

supplied.)

The Clean Air Act, 42 U.S.C. Section 1857c-9 (See-

tion 114 of the Act) provides in pertinent part that:

Section 114(a) for the purpose (i) of developing or assisting

in the development of any implementation plan under

Section 110 or 111(d), any standard of performance under

Section 111, or any emission standard under Section 112; (ii)

of determining whether any person is in violation of any

such standard or any requirement of such a plan, or (iii)

carrying out Section 303—~

(1) ‘The Administrator may require the owner or operator

of any emission source to (A) establish and maintain such

records, (B) make such reports, (C) install, use, and maintain

such monitoring equipment or methods, (D) sample such

locations, at such intervals, and in such manner as the

Administrator shall prescribe, and (E) provide such other

information as he may reasonably require: and

%

(A) shall have the right of entry to, upon. or through any

premises in which an emission source is located or in which

the 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).

(b) (1) Each state may develop and submit to the Adminis-

trator a procedure for carrying out this Section in such state.

If the Administrator finds a state procedure is adequate, he

may delegate such state any authority he has to carry out

this Section (except with respect to new sources owned or

operated by the United States). (Emphasis supplied.)

V. STATEMENT OF THE CASE

On June 4, 1969, a field inspector for the Colorado

Department of Health (Division) entered the premises of

three Western Alfalfa Corporation plants in the course

of making visual observations of emissions being dis-

charged from the plant’s operation. Representatives of

the Department of Health had been engaged in confer-

ence and conciliation with officials of the Western Alfalfa

Corporation since September of 1967 in regard to air pol-

lution violations (See Variance Board Decision). Colo-

rado law in effect on June 4, 1969 prohibited emissions

which were in excess of a Number 2 Ringelmann, or 40%

equivalent opacity, discharging for longer than three con-

tinuous minutes. 1967 Perm. Cum. Supp., C.R.S. 1963,

§6-29-5.

The statutory prescribed test, which is called a

Ringelmann or opacity reading, is made by standing in

a position where the inspector has an unobstructed view

of the emission. He then makes a visual observation of

the emission and rates it according to the opacity scale

of the Ringelmann chart. Inspectors are specially trained

in a state-certified school to read and rate the various de-

grees of emission opacity. The opacity of the emission has

a proven correlation to the particulate matter being car-

ried in the emission (Variance Board Transcript Pages

14-15, and 27-29).

The inspector who entered the three Western Alfalfa

Corporation plant premises in the course of taking his

readings observed the emissions from each source for at

least a period of ten minutes. His readings of the emis-

sions were as follows:

1. Windsor Plant

Dryer — 90% opacity

Grinder — 70% opacity

Pelletizer — 50% opacity.

2. Eaton Plant

Dryer — 85% opacity

Grinder — 70% opacity

Pelletizer — 50% opacity.

3. Berthoud Plant.

Dryer — 90% opacity

Grinder — 50% opacity

Pelletizer — 40% opacity.

The inspector did not inform plant officials that he was

making these observations (Variance Board Transcript

Pages 12-15).

The company was issued a cease-and-desist order by

the Colorado Department of Health (Division) on June

17, 1969 and on January 31, 1970, the Air Pollution Vari-

ance Board, after hearing the testimony of the field

inspector and Western Alfalfa witnesses, found the com-

pany in violation of the State Air Pollution Control Act

and affirmed the cease-and-desist order which had been

issued by the Colorado Department of Health. The Dis-

9

trict Court for Weld County held that the use of the

Ringelmann test denied the company due process. The

Colorado Court of Appeals held that the test was con-

stitutional based on a Colorado Supreme Court decision

directly on point (Fry Roofing Company vs. State De-

partment of Health et al, ........ Colo. ........ 499 P.2d 1176

(1972) but also held that the inspector had conducted an

unreasonable search because he did not have a warrant or

obtain the consent of the plant officials to enter the plant

premises. The Colorado Court of Appeals relied on

Camara vs. Municipal Court, 387 U.S. 523, 87 S.Ct.

1737, 18 L. Ed. 2d 943 (1967). The Colorado Supreme

Court denied the Petition for Writ of Certiorari to re-

view the Court of Appeals decision.

VI. ARGUMENT IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

A. THE SEARCH WAS NOT UNREASONABLE

1. The emissions being emitted from Western Alfalfa

Corporation’s operation were in plain view for anyone

who looked to see.

The Fourth Amendment prohibits unreasonable

searches or seizures. Even if the inspector’s observations

of a highly visible emission can be termed a search in that

the inspector was standing on company-owned land, it

was not an unreasonable search. In Hester v. United

States, 265 U.S. 57 (1924), the Supreme Court held that

where a defendant’s own acts disclosed something illegal,

there is no search or seizure. The issue in the Hester

case involved the observation of illegal acts and the

“fopen fields’’ doctrine. Although the open fields doc-

trine does not apply directly to this case, in that the emis-

fo

siong weré not cohtamed on the grouiid bet spread

through the ait, a fottioti; if 6he is not proteéted by the

Fourth Amendment ftom observation of acts fet contaitied

within the curtilage 6f one’s own pfoperty, ene éaiitiot be

protected by the Fourth Athendment from obseFvations Of

phenomena which fill the air and spread éuteide the

boundaries of oftes own property.

In Katz v. United States, 389 U.S. 347, 351 (1967),

this Court explained that the Fourth Amendment pro-

tects people, not places. In particular the Amendment

fosters the reasonable expectation of privacy. However,

that which is exhibited to the public may not be constitu-

tionally protected:

What a person knowingly exposes to the public, even in his

own home or office, is not a subject of Fourth Amendment

protection. But what he seéks to preserve as private, even

in an area accessible to the public, may be constitutionally

protected.

There is nothing so public as a heavy stream of

visible emissions issuing from an industrial plant into the

surrounding air. Westérn Alfalfa could not have a rea-

sonable expectation of privacy in what it Was discharging.

In Fullbright v. United States, 392 F.2d 432 (1968),

the Court held at Page 434 that:

Observations from outside the curtilage, of acts within, are

not generally interdicted by the Constitution. Indeed, to so

hold might require passing officers to close their eyés to the

commission of felonies on front doorsteps.

In the Western case, there was blatant exposure to

the public and not even a semblance of a private act

within the curtilage of Western’s Alfalfa’s property.

2. The inspector’s intrusion was minimal because he

was in an open area accessible to the public.

Because the inspector was making a visual reading

it

of opacity, he was required to stand in an open area where

he could obtain an unobstructed view of the emissions

being emitted on Western Alfalfa’s property. The inspec-

tor did not enter any of the industrial or office build-

ings because there was no occasion to do so. Anyone who

was walking on the plant grounds or looking in his direc-

tion through a window could have seen the inspector

looking at the emissions. Commercial enterprises are

afforded Fourth Amendment protection as set out in See

v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1727, 18 L.Ed.

930. However, as the Katz decision, supra emphasizes,

the question is not whether private premises are entered

without consent or a warrant, but whether the govern-

ment unreasonably intrudes upon a legitimately-founded

expectation of privacy. A commercial enterprise which is

not fenced in with a gate at its entrance holds itself

open to any member of the public driving or walking onto

its grounds, and, in fact, it usually expects and invites

such entry during hours when its plant is operating. The

fact that no personnel of Western Alfalfa learned that the

inspector was an inspector for the Public Health Depart-

ment attests to the public accessibility of the outside

grounds of the various plants, not to any furtive conduct

on the inspector’s part.

Even where investigators in the course of a criminal

investigation to enter upon a privately-owned residential

driveway or open area, the search is not unreasonable as

to objects in plain view. United States v. Capps, 435 F.2d

637 at Page 640 (9th Cir. 1970):

The Fourth Amendment’s protections do not extend to the

“open field” area surrounding a dwelling and the immediate

adjacent curtilage, and therefore, information gained as a

result of a civil trespass on an “open field” area is not con-

stitutionally tainted, nor is the search and seizure which ulti-

mately results from acquiring that information.

12

The Colorado Court of Appeals decision appears to

equate the Fourth Amendment with the civil trespass

statute. The Court in effect made a determination that

the inspector had trespassed on company property. To

the contrary, his entry was specifically authorized by

State statute and, secondly, the grounds were generally

accessible to the public. In sum, the guideline of Katz,

supra is directly in point when the Court said:

There must be a reasonable expectation of free dom from

governmental intrusion.

See also Mancusi v. Deforte 392 U.S. 364 (1968).

3. The inspector’s entry was pursuant to reasonable

regulatory design of State statute.

Industrial air pollution is a serious threat to the

public health and welfare. Any entity or individual who

undertakes to profit from public trade must expect rea-

sonable control measures when its profit-making activities

may affect the health of the community. This Court has

long articulated this policy. Mr. Justice Jackson, author-

ing the Court’s decision in Umited States v. Morton Salt

Company 338 U.S. 632 at Page 652 (1950) said that:

While they may and should have protection from unlawful

demands made in the name of public investigation, corpora-

tions can claim no equality with individuals in the enjoy-

ment of a right to privacy. They are endowed with public

attributes. They have a collective impact upon society, from

which they derive the privilege of acting as artificial en-

tities. The Federal government allows them the privilege

of engaging in interstate commerce. Favors from govern-

ment often carry with them an enhanced measure of regula-

tion. Even if one were to regard the requests for informa-

tion in this case as caused by nothing more than official

necessity, nevertheless, law enforcing agencies have a legiti-

mate right to satisfy themselves that corporate behavior is

consistent with the law and the public interest.

Colorado chose to protect its citizens against the ill

13

effects of air pollution by passing its Air Pollution Con-

trol Act. An important part of the legislation was the

right of entry onto private premises for the purpose of

conducting tests for harmful air contaminants. The stand-

ards were stringent; and, due to the variable and con-

stantly fluctuating nature of emissions into the atmos-

phere, unannounced and immediate testing, and entry for

testing, were deemed to be the most effective investiga-

tive and control tools. By design or by chance, the smoke

or other emissions may change while the inspector seeks

and obtains a warrant.

The Colorado legislation was reasonably designed to

achieve the purpose of obtaining clean air for the citizens

of the State. Entry for testing would be made only dur-

ing operating hours since emissions were the subject of

concern. The statute requires that the owner or operator

of the source be notified immediately of the results of

tests when air samples were taken. The Act insured that

the inspector would enter only for purposes connected

with controlling harmful contaminants which are vented

into the surrounding air.

In United States v. Biswell, 406 U.S. 311, 92 S.Ct.

Keates 32 L. Ed. 2d 87 (1972), this Court held that regula-

tory inspections which further urgent governmental in-

terests may proceed without a warrant or consent where

specifically authorized by statute and when the possi-

bilities of abuse and the threat to privacy are not of

impressive dimensions. The deterrent effect of unan-

nounced inspections and the importance of immediate

action in time, given the shifting nature of the subject

matter being regulated, was important to the Biswell

holding in the context of the Federal Gun Control Laws.

See also United States v. Shafer, 461 F.2d 856 (9th Cir.

14

1972) (Agricultural inspection), United States v. Latvin,

353 F.Supp. 1333, at Page 1336 (D.D.C. 1973) (Food

and Drug inspection). What holds for the Federal gov-

ernment should also hold for the states, especially in the

field of air pollution controls where the Congress has

actively promoted primary state control over the sources

of harmful contamination. The State should not be placed

in an inferior enforcement position where an observed

violation becomes another stall for a polluter because

Health Department personnel must go for a warrant be-

cause consent is, or may be, refused.

B. THE INSPECTOR HAD PROBABLE CAUSE

TO TAKE THE OPACITY READINGS WHICH HE

OBSERVED.

The elements of probable cause in any particular

situation vary according to the nature of the inspection

and the surrounding circumstances. A regulatory inspec-

tion requires a lesser degree of probable cause than a

criminal investigation. See v. City of Seattle, supra. The

primary purpose of the regulatory inspection is to control

the harmful activity rather than to prosecute persons for

violations. However, when the need for inspection is not

of immediate importance, due to the nature of the regu-

lated object or activity, the regulatory body must proceed

through the warrant procedures. Camara v. Municipal

Court, supra. On balance in that situation, the individual

or entity’s right of privacy exceeds the public interest.

The balance swings the other way when the effect on

public health, as with air contamination, is immediate.

When the Colorado inspector came within view of the

Western Alfalfa plants and saw the heavy plumes of emis-

sion blowing in the air, he had probable cause to enter

15

the premises and make his observations without consent

or a warrant before the emissions dissipated.

C. WESTERN ALFALFA WAS NOT DENIED

ITS RIGHTS OF CONFRONTATION BEFORE THE

AIR POLLUTION VARIANCE BOARD BECAUSE

THE INSPECTOR APPEARED, TESTIFIED, AND

WAS SUBJECT TO CROSS-EXAMINATION.

The inspector who made the Ringelmann and opacity

observations appeared and testified at the hearing before

the Air Pollution Variance Board. He was subject to

cross-examination concerning his observations, the man-

ner in which he conducted the readings, and their results.

The company presented evidence to show that it was not

and could not have been in violation on that particular

day. Nevertheless, the Colorado Court of Appeals held

that Western Alfalfa could not ‘‘effectively’’ exercise its

rights of confrontation because it did not have oppor-

tunity to have an observor present. The Court’s ration-

ale was as follows:

Western could not effectively rebut the evidence against

it since it had no representative present at the time the

test was administered, nor did nit have any knowledge of

the nature of emissions on the date in question.

The cornerstone of this reasoning, that the company

did not have knowledge of its emissions for reasons

ascribable to the inspector’s conduct is fallacious. An

emission source is required by law to be in constant

compliance unless under a State-approved variance 1967

Perm. Cum. Supp., C.R.S. 1963, Section 66-29-5(2) and

(15), which this emission was not. Moreover, opaque emis-

sions are as visible to company personnel as they are to

the general public and to the State’s investigator. The

only way a company can stay in continuous compliance

with the Pollution Control laws is to constantly monitor

16

its own emissions. If Western Alfalfa had done so on the

particular date in question, it could have rebutted the

inspector’s testimony. The weakness of Western’s evi-

dence cannot be laid to the fault of the inspector. An

error in courtesy or an oversight by the inspector in not

announcing his presence does not rise to the dimensions

of the denial of fundamental due process where the in-

spector appears, testifies and is subject to cross-examina-

tion, and the company is permitted to produce its own

testimony, whatever strengths or weakness ‘such ey

and evidence might have.

The effect of the Colorado Court of Appeals’ decisio,

is to require every regulatory agency to afford industry

the opportunity to have an observer on hand whenever

tests which may become evidence in administrative pro-

ceeding are made. This requirement far exceeds the pro-

tections afforded by even the Siath Amendment to a de-

fendant in a criminal proceeding.

The right to confrontation and cross-examination in

an administrative proceeding which may have significant

impact upon a person’s financial or property interests is

preserved by the Fourteenth Amendment. Goldberg v.

Kelley, 397 U.S. 254 at Page 269 (1970). In Greene v.

McElroy, 360 U.S. 474 at Page 496 (1959), this Court

articulated the elements of this right when it stated:

(1) The evidence used to prove the government’s

case must be disclosed to the individuals so that

he had an opportunity to show that it is untrue,

and

(2) When the perceptions and prejudices of an in-

dividual may be involved that person must be

subject to confrontation and cross-examination.

CPR NE Re NN NERS

17

The requirement is one of procedural due process

meant to protect against substantial deprivation resulting

from a decision on ex parte evidence. Willner v. Commit-

tee on Character and Fitness, 373 U.S. 96, Pages 103-105

(1963). See also California v. Green, 399 U.S. 149, at

Pages 157-158 (1970). The ‘‘confrontation’’ which is guar-

anteed is confrontation of the witness under oath at a

trial or hearing. Nelson v. O’Neil, 402 U.S. 622 at Page

626 (1971).

In Jenkins v. McKeithen, 395 U.S. 411, at Pages 428-

429 (1969) the court condemned administrative proceed-

ings, which, while they could conclude with a finding of

violation carrying criminal sanctions, did not provide the

oportunity for the affected person to present witnesses

and cross examine government witnesses. The Colorado

Pollution Control Act carefully preserved these rights

to an enterprise which was issued a cease-and-desist

order (See 1967 Perm. Cum. Supp., C.R.S. 1963 Session

66-29-12) and the hearings before the Air Pollution Vari-

ance Board in this case suffered none of the defects

pointed out in Jenkins, supra.

The weight of the evidence was for the Board to

determine. The fact that Western encountered a difficult

time rebutting the State’s expert does not amount to a

denial of fundamental due process. Individuals who are

the subject of an investigation, whether regulatory, civil

or criminal in nature, do not have a constitutional right

to be present when evidence is gathered or expert testi-

mony prepared against them.

CONCLUSION

The undersigned States respectfully submit that the

Colorado Court of Appeals erred in its view of the Fourth

18

and Fourteenth Amendments of the United States Con-

stitution as applied to this case. The Health Depart-

ment inspector did not act unreasonably by entering the

grounds of an industrial plant, which he had a right to do

by statute, for the purpose of recording visual observa-

tions of emissions being discharged in plain view into

the atmosphere. Controlling air pollution is an urgent

State and Federal interest, and whatever minimal intru-

sion may have been involved in the inspection did not

threaten a legitimately-founded expectation of privacy.

Secondly, Western Alfalfa was afforded its rights of

confrontation in the hearings before the Variance Board

since the inspector was on the stand for cross-examination

so that his perceptions, observations, veracity and tech-

nical expertise could be tested by Western’s attorneys.

It is respectfully submitted that this Court should issue

its Writ of Certiorari to review the judgment of the

Colorado Court of Appeals.

STATE OF ARKANSAS

iin Guy Mucker "Wares, eae

Jeation &

Lise Rech. Ackunens 72201 Sail Lake City, Utah 04114

STATE @F RHODE ISLAND STATE OF SOUTH CAROLINA

Richard J. Israel Daniel R. McLeod

Attorney General” Hampton Office Building

Cen enn Sead Ce Columbia, South Carolina 29211

Feock 3 Bee Cyare oF ee

fae Buiding Attor: General

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bis

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Charleston, West Virginia 25305 hen One

STATE OF NEBRASKA STATE OF NORTH CAROLINA

of

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Sea of urvana

Supreme Court

;

- Appendix A-1

APPENDIX A

COLORADO COURT OF APPEALS

NO. 71-494

COURT OF APPEALS

STATE OF COLORADO

Opinion filed and judgment entered on the 3rd day

of April, 1973. John Clarence Seifert, Clerk of the Court.

WESTERN ALFALFA CORPORATION,

a Kansas corporation,

Petitioner-Appellee,

vs.

AIR POLLUTION VARIANCE BOARD

OF THE STATE OF COLORADO,

Respondent-A ppellant.

Appeal from District Court, Weld County

Honorable Donald A. Carpenter, Judge

DIVISION II JUDGMENT AFFIRMED

Silverstein, C.J., Dwyer and Pierce, JJ.

Linde, Thomson, Van Dyke, Fairchild & Langworthy,

George D. Blackwood, Kansas City, Missouri; Houtchens,

Houtchens & Dooley, S. Robert Houtchens, Greeley, Colo-

rado; Lee, Bryans, Kelly & Stansfield, Donald D. Cawelti,

Denver, Colorado; Attorneys for the Petitioner-Appellee.

Duke W. Dunbar, Attorney General; William Tucker,

Assistant Attorney General, Denver, Colorado; Attorneys

for the Respondent-Appellant.

Opinion by JUDGE PIERCE.

Appendix A-2

On June 16, 1969, Western Alfalfa Corporation re-

ceived a cease and desist order from the Division of Ad-

ministration of the Colorado Department of Health (Divi-

sion) advising them that the emissions from three of

their plants in Northern Golorado were not in compliance

with the Air Pollution Control Act (Act), and ordering

them, pursuant to the provisions of 1967 Perm. Supp.,

C.R.S. 1963, 66-29-10(3), to cease and desist from any

further violations of the Act. Within ten days from

receipt of the cease and desist order, Western filed with

the Air Pollution Variance Board (Board) a denial that it

was in violation of the Act.

The Board held a hearing in September of 1969. At

this hearing, a witness for the State testified that he had

made observations on the premises of Western on June

4, 1969, from which he concluded that Western was in

violation of the Act. The readings taken purportedly

registered darker in shade than a No. 2 on the Ringle-

mann chart, contrary to the terms of 1967 Perm. Supp.,

C.R.S. 1963, 66-29-5.

The Ringlemann chart is an instrument, assigning

numerical values to various gradations of smoke color as

they appear on the chart. A party using the chart matches

the color and density of the alleged smoke pollutant under

observation with the numbered example on the chart. This

test is sanctioned by the Act as the minimum valid

method .of determining whether or not the Act is being

violated, and is presumptively valid. Fray Roofing Co.

v. State Department of Health, Colo. , 499

P.2d 1176. This method of measuring air pollution is

generally sanctioned. See City of Portland v. Fry Roofing

Co., 3 Ore. App. 352, 472 P.2d 826 for a collection of cases

approving the Ringelmann chart.

Appendix A-3

Western countered this evidence with Ringelmann

readings taken approximately one year earlier by a con-

sulting engineer hired by Western, which showed no viola-

tion. They also offered the results of a sophisticated test

conducted at their plant by an independent engineering

firm some months after they were issued the cease and

desist order. Western contends that this test established

that they were not in violation of the Act.

The Board concluded that Western’s operations were

in violation of the Act. It further determined that it

would not accept the report of the independent engineer-

ing firm because the method of testing was not acceptable

to the Division as required by the statute. 1969 Perm.

Supp., C.R.S. 1963, 66-29-5(2)(e).

Thereafter, Western filed suit in the district court

pursuant to the terms of 1967 Perm. Supp., C.R.S. 1963,

66-29-13, seeking to have the cease and desist order set

aside as not being in compliance with the law. The trial

court reversed the Board. We affirm the conclusion and

judgment of the trial court.

The Act, as it then existed,’ established the approach

that the Division was to use in searching out and stop-

ping violations. Specially, the Division had the duty to

determine, by means of field studies and air samples, the

ambient air standard in any area in the state. 1967 Perm.

Supp., C.R.S. 1963, 66-29-8. This included the authority

to enter and inspect any property for the purpose of in-

vestigating either an actual or a suspected source of air

pollution. 1967 Perm. Supp., C.R.S. 1963, 66-29-8(2)(d).

1 The statute presented to us for construction has been in its

entirety, and re-enacted as the Air Pollution Control Act. 1971

Perm. Supp., C.R.S. 1963, 66-31-1 et The new Act has been

from a constitutional attack in Fry R Roofing Co. v

Colo, » 499 P.2d 1176.

Appendix A-4

In the instant case, the evidence that resulted in issu-

auce of the cease and desist order was gathered by a

field inspector from the Division, who entered the prem-

ises of Western on June 4, 1969, without the knowledge

or consent of anyone from Western, and made his read-

ings. It was not until Western received the cease and

desist order that it was aware of the fact that someone

had been on its premises collecting evidence for a case

against it. This fact convinces us that the hearing af-

forded Western lacked the fundamental elements of due

process of law, since the secret nature of the investiga-

tion foreclosed Western from putting on any rebuttal

evidence.

We conclude that the act of conducting tests on the

premises of Western without either a warrant or the con-

sent of anyone from Western, constituted an unreasonable

search. Camara v. Municipal Court, 387 U.S. 523, 87 S.

Ct. 1727, 18 L. Ed. 2d 930; See v. City of Seattle, 387 U.S.

541, 87 S.Ct. 1737, 18 L. Ed. 2d 943. In Camara, the

Supreme Court made it clear that searches by adminis-

trative agencies must be reasonable and must either be

based upon the consent of the person who owns the prem-

ises, or must be pursuant to a warrant. It was further

made clear that this rule is not confined to criminal

prosecutions. On the facts of this case, it was necessary

for the field investigator to comply with this requirement.

We note that this provision was added to the Act by an

amendment subsequent to the events in question. 1969

Perm. Supp., C.R.S. 1963, 66-29-8(2) (d).

Western could not effectively rebut the evidence

against it since it had no representative present at the

time the test was administered, nor did it have any knowl-

edge of the nature of its emissions on the date in question.

Appendix A-5

This is particularly important since the Board made it

very clear that the only evidence which was probative of

whether Western was in violation of the Act was evidence

which would rebut the evidence of the alleged violation

on June 4, 1969. Since violations of the Act can be based

upon emissions aggregating three minutes or more during

any hour, 1967 Perm. Supp., C.R.S. 1963, 66-29-5(a), and

since the evidence by its very nature is continually dis-

sipating, we conclude that it is constitutionally mandatory

in this type of case that the party accused be aware of

the taking of test and measurements on its premises at the

time they are made.

Had Western known of the field observer being on

its premises on the date of the investigation, it would have

had a reasonable opportunity to effectively exercise its

rights of confrontation at the hearing before the Board.

1969 Perm. Supp., C.R.S. 1963, 3-16-4. Imposition of the

Camara rule assures fundamental fairness in this type

of situation. The failure to provide this protection re-

sulted in a violation, in this case, of the Fourth Amend-

ment to the United States Constitution.

Judgment affirmed. 7

CHIEF JUDGE SILVERSTEIN and

JUDGE DWYER CONCUR.

Appendix B-1

APPENDIX B

SUPREME COURT

Clerk’s Office, State of Colorado, Denver 80203

Case No. C-382

June 25, 1973

71-494

Air Pollution Variance Board

v.

Western Alfalfa Corp.

Copy of an order entered in the above numbered and

titled case June 25, 1973, is enclosed.

Your very truly,

RICHARD D. TURELLI, Clerk

By Judi Malora, Deputy

Mr. John Seifert, Clerk, Colorado Court of Appeals,

607 State Social Services Bldg., Denver, Co. 80203

Honorable John P. Moore, Attorney General, Mr.

Wliliam Tucker, Assistant Attorney General, State Capi-

tol, Denver, Co. 80203

Lee, Bryans, Kelly & Stansfiedl, Suite 990, 550 15th

St., Denver, Co. 80202

Linde, Thomson, Van Dyke, Fairchild & Langworthy,

Columbia Union National Bank Bldg., 900 Walnut St.,

Kansas City, Missouri 64106

Houtchens, Houtchens & Dooley, 1007 9th Ave.,

Greeley, Co. 80631

Appendix B-2

IN THE SUPREME COURT OF THE

STATE OF COLORADO

Case No. C-382

April Term, 1973

AIR POLLUTION VARIANCE BOARD

OF THE STATE OF COLORADO,

Petitioner,

vs.

WESTERN ALFALFA CORPORATION,

a Kansas corporation,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI to

the Court of Appeals.

After review of the record, the briefs and the opinion d

of the Court of Appeals,

IT IS ORDERED by this court that said petition

be, and the same hereby is, denied.

June 25, 1973

By the Supreme Court

Sitting En Banc

SUPREME COURT

State of Colorado

Certified to be a full, true and correct sed

June 25, 1973

Court Seal

RICHARD D. TURELLI,

Clerk of the Supreme Court

By Judi Malora,

Deputy Clerk

Appendix C-1

APPENDIX C

COURT OF APPEALS

State of Colorado, 1575 Sherman Street

Denver, Colorado 80203 (303) 892-2641

OPINION OF THE COLORADO COURT OF APPEALS

ANNOUNCED AND JUDGMENT ENTERED, April 3,

1973.

Oral Arguments held, January 30, 1973.

Before Harry S. Silverstein, Jr., Chief Judge, William F.

Dwyer and Charles D. Pierce, Judges.

MANDATE

No. 71-494

Tr. Ct. No. 19974

WESTERN ALFALFA CORPORATION,

a Kansas corporation,

Petitioner-Appellee,

vs.

AIR POLLUTION VARIANCE BOARD OF

THE STATE OF COLORADO,

Respondent-A ppellant.

This cause came. on to be heard on the record on

appeal from the District Court of the County of Weld,

and was argued by counsel, on consideration whereof, it is

s

>

Appendix C-2

ordered that the judgment of said Court is AFFIRMED.

JOHN CLARENCE SEIFERT,

Clerk of the Court.

ANNA MAE TOMSIC,

. Deputy

Court Seal

COURT OF APPEALS

STATE OF COLORADO

Certified to be a full, true and correct copy

Date June 26, 1973

John Clarence Seifert, Clerk of Court of Appeals

By Anna Mae Tomsic, Deputy Clerk

Appendix I-1

APPENDIX D

BEFORE AIR POLLUTION VARIANCE BOARD

OF THE STATE OF COLORADO

IN THE MATTER OF THE

REQUEST OF WESTERN

ALFALFA CORPORATION FINDINGS THE

FOR A VARIANCE FROM FACT, CONCLU-

THE EMISSION STANDARDS [SIONS OF LAW,

OF THE AIR POLLUTION . | AND DECISION.

CONTROL ACT OF 1966,

AS AMENDED. :

THE MATTER of the request of the Western Alfalfa

Corporation (hereinafter referred to as the Petitioner),

for a variance from the emission standards of the Air

Pollution Control Act of 1966, as amended, at its alfalfa

dehydrating plants located at or near the towns of Eaton,

Windsor, and Berthoud, Colorado, came on for hearing

before the Air Pollution Variance Board of the State of

Colorado, in Room 412, Colorado Department of Health

Building, 4210 East 11th Avenue, Denver, Colorado, at

2:30 o’clock p.m., on September 11, 1969, and at 1:30

o’clock p.m., on October 16, 1969. At the hearing on Sep-

tember 11, 1969, David Foster, Esquire, was present and

represented the Colorado Health Department and the

Board, and Mr. George D. Blackwood, Jr., Attorney at

Law, Union National Bank Building, 900 Walnut Street,

Kansas City, Missouri 64106, and Mr. Donald D. Cawelti,

Attorney at Law, Public Service Company Building, 550

15th Street, Denver, Colorado 80202, were present and rep-

resented the Petitioner. At the hearing on October 16,

1969 Mr. James Kreutz, Assistant Attorney General of

Appendix J-2

the State of Colorado, was present and represented the

Board; David Foster, Esquire, was present and repre-

sented the Colorado Health Department; and Mr. Donald

D. Cawelti, Attorney at Law, Public Service Company

Building, 550 15th Street, Denver, Colorado 80202, was

present and represented the Petitioner. From the evi-

dence and matters submitted at the hearings, the Board

finds as follows:.

a FINDINGS OF FACT

1. That the Petitioner’s operations are in violation

of the emission standards of the Air Pollution Control

Act of 1966, as set out in Section 66-29-5, C.R.S, 1963

(1967 Perm. Cum. Supp.).

2. That Ringelmann and Opacity readings for a

period in excess of three minutes were taken by personnel

of the Colorado Department of Health on June 4, 1969,

and all of such readings were in excess of a Ringelmann

2 and an Opacity of 40%.

3. That representatives of the Division have been in

conference and conciliation with the Petitioner in regard

to its air pollution violations since September, 1967.

4. That Petitioner was issued a Cease and Desist

Order on June 16, 1969.

5. That Petitioner requested a hearing before this

Board to determine if its operations were in violation of

the emission standards set out above and if that finding

was in the affirmative, for a variance from said standards.

6. That Petitioner performed a test pursuant to

“Appendix D-3

Section 66-29-5(2)(e), pter 168, Colorado Session

Laws 1969, but the Board) finds that Petitioner did not

comply with the statute in performing said test in that

(a) the method of testing was-not acceptable to the Divi-

sion, and (b) the Division did not determine that it was a

reasonable correlation between the standards set forth in

subsections (2) and (3) when applied to the Petitioner’s

emissions.

7. That Petitioner does not have a permit or vari-

ance from this Board, the Division, or any local authority

to conduct its operations, in violation of the Air Pollution

Control Act of 1966, as amended.

8. That there are commercial businesses and resi-

dences within 10 block of Petitioner’s Windsor Plant

operations, 4% mile of Petitioner’s Eaton Plant opera-

tions, and % mile of Petitioner’s Berthoud Plant

operations. :

9. That Petitioner’s operations are within an air

pollution area properly designated by the Division, pur-

suant to the Air Pollution Control Act of 1966, as

amended.

CONCLUSIONS OF LAW

1. The Board finds as a matter of law that the

Petitioner did not conduct the testing of its emissions in

compliance with Section 66-29-5(2)(e), Chapter 168, Colo-

rado Session Laws 1969, and that ‘‘reasonable correla-

tion’’ means approximate equivalency.

2. The Board finds as a matte~ of law that Peti-

tioner’s emissions are of an opacity darker in shade than

that permitted by law.

Appendix [I)-4

3. The Air Pollution Variatice Board is granted

authority under the Air Pollution Control Act of 1966, as

amended, as set out in Sections 66-29-10 and 11, C.R.S.

1963 (1967 Perm. Cum. Supp.), to hold hearings and

grant variances.

4. The Board finds that the legislative declaration

set out in Section 66-29-2, C.R.S. 1963 (1967 Perm. Cum.

Supp.), would not be complied with if the Petitioner were

granted a variance.

DECISION

WHEREFORE, it is the decision of the Air Pollu-

tion Variance Board of the State of Colorado that the

Petitioner’s operations are in violation of the emission

standards of the Air Pollution Control of 1966, as

amended, and that Petitioner be and hereby is denied a

variance from said emission standards.

This is a final order of the Air Pollution Variance

Board and is subject to judicial review as set out in

Section 66-29-13, C.R.S..1963 (1967 Perm. Cum. Supp.).

DONE this 31 day of January, 1970.

AIR POLLUTION VARIANCE

BOARD OF THE STATE

OF COLORADO

By GEORGE J. DWIRE,

Chairman