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

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| MAR 71974

In the Supreme Court of the Union Meggett cen |

October Term, 1973 4

No. 73-690

AIR POLLUTION VARIANCE

BOARD OF THE STATE OF

COLORADO,

Petitioner,

v.

WESTERN ALFALFA

COMPANY,

Respondent.

BRIEF FOR STATE OF OHIO

AS AMICUS CURIAE

WituiaM J. Brown

ATTORNEY GENERAL OF

THE STATE OF OHIO

State House Annex

Columbus, Ohio 43215

Of Counsel:

-Ricuarp P. Faney

Assistant Attorney General

361 East Broad Street

Columbus, Ohio 43215

(614) 466-3258

Joun EUFINGER

Assistant Attorney General

361 East Broad Street

Columbus, Ohio 43215

(614) 466-4262

THE JUDSON - BROOKS COMPANY — CLEVELAND

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TABLE OF CONTENTS

Page

TABLE OF CASES . ii

CONSTITUTIONAL PROVISIONS CITED - ii

STATUTES CITED ii

RULES AND REGULATIONS CITED ii

CONSTITUTIONAL PROVISIONS INVOLVED _ 1

QUESTIONS PRESENTED — 1

STATEMENT OF THE CASE _ 2

INTEREST OF AMICUS 2,3

ARGUMENTS |

CONCLUSION 9

‘TABLE OF CASES

Page

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

1727, 18 L.Ed/ 2d 930 (1967) _- 6, 8

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

18 L.Ed. 2d 943-(1967) 6, 7,8

United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593,

32 L.Ed. 2d 87 (1972) se 7,8

United States v. Morton Salt Co., 338 U.S. 632, 70

S.Ct. 357, 94 L.Ed. 40 (1950) 5,8

CONSTITUTIONAL PROVISIONS CITED

Fourth Amendment to the United States Constitution,

Title 28, U.S. Code, Section 1257 1

STATUTES CITED

Clean Air Amendments of 1970, 42°U.S.C. Sections

1857-1857(1) 2,4

Ohio Revised Code, Section 3704.03(M) —----..-- 3

*-

REGULATIONS CITED

40 CFR 51.11(a)(5) ee

1

In the

Supreme Court of the United States

y 3 | October Term, 1973

No. 73-690

AIR POLLUTION VARIANCE |

BOARD OF THE STATE OF

COLORADO,

Petitioner,

v.

WESTERN ALFALFA

COMPANY

Respondent.

BRIEF FOR STATE OF OHIO

AS AMICUS CURIAE ~

CONSTITUTIONAL PROVISION INVOLVED

Article IV of the Amendments to the Constitution of

the United States provides that:

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

> houses, papers, and effects, against unreasonable

- searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons

or things to be seized.

QUESTIONS PRESENTED

A. Does failure to notify an industrial pollutor of a

Ringelmann or opacity reading at the time the reading is

taken or prior to the reading violate the provision of the

Fourth Amendment to the United States Constitution?

B. Is it necessary to obtain the consent of an indus-

trial pollutor prior to taking a Ringelmann or opacity read-

ing from the premises of the particular industry, and if

the consent is not obtained, is the taking of the Ringelmann

or opacity reading a sufficient invasion of the right of

privacy of the industry to constitute a violation of the

Fourth Amendment to the United States Constitution?

C. Where inspections and the taking of opacity and

Ringelmann readings are necessary to further urgént fed-

eral and state interests to protect the environment pursuant

to federal and state law, is the possibility of abuse and

the threat to privacy of such dimension that the taking

of a Ringlemann or opacity reading without a warrant or

consent a violation of the Fourth Amendment to the

United States Constitution?

STATEMENT OF THE CASE

_ Amicus adopts the statement of the case as presented

by Petitioner.

INTEREST OF AMICUS

The seriousness of the threat posed by air pollution

to the health and welfare of our Nation moved Congress

to enact the 1970 Amendments to the Clean Air Act, 42

U.S.C. Sections 1857-1857(1), Pub. L. 91-604, 84 Stat.

1713 (1970) (hereinafter “Act”). This Act creates the

federal machinery to insure that each state's clean air

implementation plan meets rigorous federal standards,

but expressly leaves the major enforcement responsibilities

in the hands of the states. See Section 110, 42 U.S.C. Sec-

tion 1857 c-5.

Ohio, a$ required by the Act, has prepared a clean

air implementation plan. Central to the functioning of

3°

Ohio's plan are the inspection and testing powers con-

tained in Ohio Revised Code, Section 3704.03(M), which

authorizes the Ohio director of environmental protection:

Through any employee, agent, or authorized repre-

sentative of the director or the environmental pro-

tection agency, [to] enter upon private or public

pro} , including improvements thereon, at any

reasonable time for the purpose of making inspections,

conducting tests, and examining or reports

pertaining to any emission of air contaminants and

of determining if there are any actual or potential

emissions from such premises, and if so, to determine

the sources, amounts, contents, and extent of such

emissions, or to ascertain compliance with sections

3704.01 to 3704.11 of the Revised Code, any orders or

regulations adopted thereunder, or any other deter-

mination of the director. If entry or inspection author-

ized by this division is refused, hindered, or thwarted,

the director or his authorized representative may b

affidavit apply for, and any judge of a court of tn

may issue, an appropriate inspection warrant neces-

sary to achieve purposes of this chapter within

the court’s territorial jurisdiction.

Being a highly industrialized state with several heavily

populated urban centers, Ohio is responsible for the regula-

tion of many thousands of air pollution sources. ‘Because

violations of state and federal air pollution standards can

be concealed or corrected in a short time, any attempt to

regulate air pollution necessarily depends upon frequent

unannounced inspections and tests of air pollution sources.

Ohio’s vital interest in insuring the protection and

enhancement of its air quality is the basis for its concern

with the outcome of this litigation. Should this Court con-

clude that notice, consent or a warrant is required before

any inspections or tests of air pollution sources can be

conducted upon a commercial premises, the state's ambient

air quality implementation plan would be rendered vir-

tually unenforceable.

4

ARGUMENTS

1.

THE INSPECTIONS AND TESTS CONDUCTED

BY COLORADO OFFICIALS AS PART OF THE

STATE’S AIR IMPLEMENTATION PLAN ARE

REGULATORY IN NATURE, AND WHEN CON-

DUCTED UPON BUSINESS PREMISES WITH-

OUT NOTICE, CONSENT OR A WARRANT, DO

NOT VIOLATE THE STANDARD OF THE.

FOURTH AMENDMENT WHEN THE AUTHOR-

IZING STATUTE IS VALID.

A. The Clean Air Act Amendments Of 1972 Require

The States To Enforce Federal Ambient Air Qual-

ity Standards Through Programs Of Inspection

And Testing Of Air Pollution Sources.

“[T]o protect and enhance the quality of the Nation’s

air resources so as to promote the public health and wel-

fare and the productive capacity of its population,” Con-

gress enacted the Clean Air Amendments of 1972. Sec-

tion 101(b)(1), 42 U.S.C. Section 1857(b)(1). Under

the Act, the federal government established national am-

- bient air quality standards to protect the public health and

welfare. Section 109, 42 U.S.C. Section 1865. However, the

Act placed the major responsibility for iniplementation of

the national ambient air quality standards on the states.

Under the scheme of the Act, the states are in effect

made agents in the enforcement of this federal statute.

To this end regulations were promulgated by the Adminis-

trator of the. United States Environmental Protection

Agency setting forth requirements for the state imple-

mentation plans, including the requirement that:

Each plan shall show that. the state has legal

authority to carry out the plan, including the author-

ity to: :

(5) Obtain information necessary to determine

whether air pollution sources are in compliance

with sonnei laws, regulations and standards,

including authority to require record keeping and

to make inspections and conduct tests of air pollu-

tion sources.

40 CFR 51.11(a)(5).

By requiring the power of inspection and testing as a part

of each approvable state implementation plan, the Admin-

istrator recognized their necessity to any enforcement

effort.

B. The Traditional Fourth Amendment Standard For

Reasonable Search And Seizures Applied To The

Individual Citizen’s Private Residence Does Not

Apply To Regulatory Inspections Of Commercial

Premises.

The purpose of the Fourth Amendment is_to safe-

guard the privacy of individuals against arbitrary invasion

by government officials. That a business association does

not enjoy the same right to privacy as an individual citizen

was made clear by this Court in United States v. Morton

Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 40 (1950). In

Morton, the Fourth Amendment question focused upon

the reasonableness of an administrative subpoena of cor-

porate books and records. In holding that such a subpoena

cannot be so broad as to be unreasonably burdensome, this

Court said:

While they may and should have protection from

unlawful demands made in the name of public investi-

gation, corporations can claim no equality with indi- -

viduals in the enjoyment 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 entities.

338 U.S. 632, 652, 70 S.Ct. 357, 368 (1950).

6

This distinction between the Fourth Amendment

standard of reasonableness as it applies to individuals and

business entities appears to account for this Court's ruling

on two companion cases when it considered the necessity

of a warrant for ‘area-wide fire and safety inspections. In

Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727,

18 L.Ed. 2d 930 (1967), it was held that administrative

searches of private residences by municipal health and

safety inspectors constituted a significant intrusion upon

interests protected by the Fourth Amendment, and a search

warrant was required.

The companion case of See v. City of Seattle, 387 U.S.

541, 87 S.Ct. 1737, 18 L.Ed. 2d 943 (1967), arose from the

refusal of the owner of a commercial building to allow a

warrantless administrative inspection of the property by

fire officials engaged in a routine, periodic city-wide can-

vass. This Court said:

The only question which this case presents is whether

Camara applies to similar i ions of commercial

structures which are not as private residences.

387 U.S. 541, 542, 87 S.Ct. 1737, 1739.

It was held that such an administrative inspection of

a commercial building conducted as part of a routine

area-wide canvass required consent or some form of war-

rant, but not necessarily one issued upon probable cause

as required by Camara for private residential inspections.

However, the decision was a narrow one which did not

touch upon inspections of particular premises for a regula-

tory purpose:

We do not in any way imply that business premises

may not reasonably be inspected in many more situa-

tions than private homes, nor do we question such

accepted regulatory techniques as licensing programs

which require inspections prior to operating a busi-

ness or marketing a product.

387 U.S. 541, 545-546, 87 S.Ct. 1737, 1740-1741.

7

While the See opinion left many unanswered ques-

tions, it is clear that the Fourth Amendment standard of

reasonableness as applied to individuals and businesses is

not the same. What may be a violation of an individual's

Fourth Amendment rights is not necessarily violative of a

business association’s Fourth Amendment rights.

C. The Regulatory Inspection And Testing Of A

Private Commercial Premises Does Not Violate

The Reasonableness Standard Of The Fourth

Amendment If It Is Authorized By A Valid Statute.

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

1593, 32 L.Ed. 2d 87 (1972), many of the unanswered

questions of See concerning the relationship of the Fourth

Amendment to regulatory inspections of private commer-

cial premises were settled. In that case, a warrantless and

unconsented search of a locked storeroom during business

hours, as part of the inspection procedure .authorized by

19 U.S.C. Section 923(g) of the Gun Control Act of 1968,

resulted in the seizure of unlicensed firearms from a dealer

federally licensed to deal in sporting weapons. This Court

held that such a regulatory inspection, without consent or

warrant, was not violative of the Fourth Amendment's pro-

hibition against unreasonable searches and seizures:

In the context of a regultaory inspection of business

premises that is carefully limited in time, place and

scope, the legality of the search depends not on

consent, but upon the authority of a valid statute.

406 U.S. 311, 315, 92 S.Ct. 1593, 1596.

Furthermore,

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

credible deterrant, 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-

8

quency is to be preserved, the protections afforded

by a warrant aa be negligible.

406 U.S. 311, 315, 92 S.Ct. 1593, 1596.

Unlike the building inspections in See and Camara,

inspections conducted by state air pollution officials have

as their object the detection of pollution incidents which

can be concealed or corrected in a short period of time.

Moreover, if the air quality is to meet the National Ambient

Air Quality Standards for health and safety, it is crucial

that all sources be made to comply. As with the regula-

tion of firearms in Biswell, the successful regulation of air

pollution sources is dependent largely upon voluntary

compliance by the owners and operators of the regulated

source of air pollution. The only effective deterrant to such

sources willfully avoiding compliance, which very often is

economically costly, is the ability of state officials to make

frequent unannounced inspections and tests.

The intrusion upon commercial premises authorized

by the Colorado statute was limited in purpose and scope.

As such it infringed little, if any, upon the reasonable

expectations of privacy enjoyed by the corporation. See

Morton Salt Co., supra, p. 5. To require a warrant for

every inspection and test similar to the one which is the

subject of this case would hopelessly bog down the enforce-

ment of the federal and state air laws. Indeed, as Biswell

makes. clear in a situation such as that presented upon

appeal here, neither a warrant nor consent is required

as long as the authorizing statute meets the standard of

reasonableness required by the Fourth Amendment for

business premises.

9

CONCLUSION

The Order appealed from should be reversed.

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of March, 1974,

two copies of the Amicus Brief in Support of Petitioner

were mailed, postage prepaid, to all counsel of record in

the main proceeding. I further certify that all parties

required to be served have been served.

WiLuiAM J. BRowN

ATTORNEY GENERAL OF OHIO

By Ricwarp P. FAHEY

Assistant Attorney General

361 East Broad Street

Columbus, Ohio 43215

(614) 466-3258