Brief for Respondent — Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp.

Supreme Court brief1974

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In the Supreme Court of the U

OCTOBER TERM, 1973

No. 73-690

AIR POLLUTION VARIANCE BOARD... |

OF THE STATE OF COLORADGO--

Petitioner,

Vs.

WESTERN ALFALFA CORPORATION,

Respondent.

ON WRIT oF CERTIORARI TO THE COURT OF APPEALS

oF COLORADO ,

BRIEF FOR THE RESPONDENT

Georce D. BLackwoop, Jr.

PuHILip B. GREEN

Floor Three Columbia Union

Bank Building

900 Walnut Street

Kansas City, Missouri 64106

Donatp D. CaweELTI

990 Public Service Company

Building |

Denver, Colorado 80202 a

Attorneys for Respondent .

Of Counsel:

LINDE THOMSON VAN Dyke FAIRCHILD

& LANGWORTHY

Floor Three Columbia Union

Bank Building

900 Walnut Street

Kansas City, Missouri 64106

Lee, BRYANS, KELLY & STANSFIELD

990 Public Service Company

Building

Denver, Colorado 80202

E. L. Menpannatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-8080

INDEX

I. QUESTIONS PRESENTED .......22....--.--sseseseeeeeeeeees 1

II. CONSTITUTIONAL AND STATUTORY PRO-

VISIONS INVOLVED ................. . 2

Ill. STATEMENT OF THE CASE ...20200o2..eeeeeeeeeeeee: 5

IV. SUMMARY OF ARGUMENT 000222... eneeeeeeeeeees 6

V. ARGUMENT ............................ 10

A. The Act, As Applied to Respondent, Permitted

Action to Be Taken Which in Effect, Denied

Respondent a Real and Reasonable Opportunity

to Present Evidence and Be Heard at the Hear-

ing, and Operated to “Deny a Hearing on the

Facts, and Is Therefore Violative of Respon-

dent’s Right to Procedural Due Process As Guar-

anteed by the Fourteenth Amendment to the

Constitution of the United States 2.00... 10

B. The Taking of Opacity Readings on the Prem-

ises of Respondent, a Stationary Emission

Source, Without Either a Search Warrant or the

Consent or Knowledge of Anyone Representing

the Respondent, Constituted an Unreasonable

Seizure under the Fourth Amendment to the

Constitution of the United States — 2.0... 24

1. Preliminary Comment .........-...2....22-2---.------- 24

2. The Taking of on Premises Opacity Readings

Is Governed by the Decisions in Camara and

See and Does Not Fall Within the Carefully

Defined Exceptions to Those Decisions ........ 26

3. The “Plain View” and “Open Fields” Doc-

trines Do Not Apply to Opacity Readings

Taken on Respondent’s Premises .................. 40

C. The Former Air Pollution Control Act in and of

Itself and As Applied to the Respondent in This

Action Is Unconstitutional in That It Works in

Such a Manner As to Deprive the Respondent

of Its Property in Contravention of the Due

Process Clause of the Fourteenth Amendment

to the Constitution of the United States ............

1. The Tests Employed in the Former Act for

Determining Whether the Maximum Per-

missible Discharges for Air Contaminants

Have Been Exceeded Are Arbitrary, Ca-

pricious and Unreasonable and Are So Sub-

jective As to Offend Traditional Notions of

Fair Play and Substantial Justice ................

2. The Act, in Employing Visual Determina-

tion Tests, Has Selected Means Which Have

No Real and Substantial Relation to the Ob-

ject Sought to Be Attained and Is Therefore

Violative of the Due Process Clause of the

Fourteenth Amendment to the Constitution

of the United States ...........

3. Whatever the End Sought to Be Attained by

the Act, a Finding of Liability for Its Viola-

tion Based upon a Visual Determination Test

Is Unreasonable and Therefore Violative of

Die PIOCese 36

VI. CONCLUSION

Citations

CASES

Bell v. Burson, 402 U. S. 535 (1971) 00.

Bortz Coal Company v. Air Pollution Commission, 279

jg "0 | Ey eee eens een ne eR ee

Camara v. Municipal Court, 387 U. S. 523 (1967) ............

sieeees vee eespeienasces 8, 23, 24, 25, 26, 27, 29, 30, 31, 32, 34, 37, 41

Capler v. City of Greenville, Mississippi, 298 F. Supp.

295 (N.D. Miss. 1969) 2.022.222... cccecceccseeseseeeceseeeeeeseeeeees 18

City of Portland v. Lloyd A. Fry Roofing Company, 495

seme at) ae G9 nee 53

Colonnade Catering Corp. v. United States, 397 U.S. 72

(1970) ...... ela seaases ees acanceaneeayeounssiataniee 31, 32, 34, 35, 37

Escalera v. New York City Housing Authority, 425 F. 2d

B53 (2d Cir. 1970) one eeecececeeecesecceceececesesecevecseeseees 11,14

Essex Chemical Corporation v. Ruckelshaus, 486 F. 2d

427 (D.C. Cir. 1973) .....

Fullbright v. United States, 392 F. 2d 432 (10th Cir.

pL ) ene ee ee 41, 42

Greene v. McElroy, 360 U. S. 474 (1959) ooo. ecececccceeeeeee. 13

Goldberg v. Kelly, 397 U. S. 254 (1970) oon. cccoceeccceccseee. 11

Hannah v. Larche, 363 U. S. 420 (1960) o.oo cece. 13

Harris v. United States, 390 U. S. 234 (1968) ................ 41

Joint Anti-Fascist Refugee Committee v. McGrath, 341

U.S. 123 (1951) 23-24

Katz v. United States, 389 U. S. 347 (1967) 00.0.0... 42

Lloyd A. Fry Roofing Co. v. State Department of

Health, et al., 499 P. 2d 1176 (Colo. 1972) ............... 38, 39

McDowell v. United States, 383 F. 2d 599 (8th Cir. 1967) 42

Morgan v. United States, 304 U. S. 1 (1938) 000.0... 12

Nebbia v. New York, 291 U. S. 515 (1934) 0.00.0... 56, 57

Ohio Bell Telephone Company v. Public Utilities Com-

mission, 301 U. S. 292 (1937) ........... 12

Pearson v. Northeast Airlines, 309 F. 2d 553 (2d Cir.

1962) 61

Pennsylvania v. Pennsylvania Power Company, 6ER. Cc.

1328 (1974) . ..

People v. Detroit Edison Company, 168 N.W. 2d 320

(1969) 59

People v. Plywood Manufacturers of California, 291 P.

2d 587 (1955) 54

Portland Cement Association v. Ruckelshaus, 486 F. 2d

375 (D.C. Cir. 1973) 43-44, 45

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

26, 27, 30, 31, 34, 36, 38

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

28, 31, 32, 33, 34, 35, 36, 37

United States v. Business Builders, Inc., 354 F. Supp.

141 (N.D. Okla. 1973) 39

United States v. Capps, 435 F. 2d 637 (9th Cir. 1970) ..... 41

United States v. Del Campo Baking Mfg. Co., 345 F.

Supp. 1371 (D. Del. 1972) 34, 35, 36, 37, 39

United States v. Duffy, 282 F. Supp. 77 (S.D. N.Y. 1968) 40

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

1973) 34-35, 37, 39

United States v. Thriftimart, Inc., 429 F. 2d 1006 (9th

Cir. 1970) 40

United States v. Vilhotti, 452 F. 2d 1186 (2d Cir. 1971) .. 41

Vlandis v. Kline, ........ | |. ee , 93 S. Ct. 2230 (1973) .. 60

Youghiogheny and Ohio Coal Co. v. Morton, 364 F.

Supp. 45 (S.D. Ohio 1973) 38

CONSTITUTION OF THE UNITED STATES

Fourth Amendment

2, 24, 25, 27, 31, 32, 33, 35, 36, 39, 41, 42, 43

Fourteenth Amendment 2, 39, 59

STATUTES

42 U.S.C. Section 1857c-9 22

California Health and Safety Code—

Sections: 24198 59

24199 59

Colorado Revised Statutes (C.R.S.) 1963 (1967 Perm.

Supp. )—

Sections: 66-29-22... eee ceccceceeeeeceeceeeceeeceeceececeeee 2

66-29-3 (5) 52

66-29-3 (6) 3

66-29-5 (2) (6) 3

66-29-5 (2) (b) 45

66-29-5 (2) (c) 4,45

66-29-8 (2) (d) 4,7, 10, 28

66-29-9 19

66-29-15 23

35 Pennsylvania Statutes § 4002 ... . 58

San Francisco Housing Code, (1967) Section 503 ............ 29

MISCELLANEOUS

Henz, “The Ringelmann Numbers As an Irrebuttable

Presumption of Guilt—As Outdated Concept,” 3 Nat-

ural Resources Lawyer 232, May, 1970 0.000.000... 46

Marks, Standard Handbook for Mechanical Engineers,

7th Ed., McGraw-Hill Book Co., New York, 1969 ...... 48

“Particulate Emissions from Alfalfa Dehydrating

Plants-Control Costs and Effectiveness”—Environ.

Pro. Tech. Series, EPA 650/-2-74-007, Jan. 1974 ........ 50

Public Health Service Publication 999-Ap.-30 (1967

Nat. Tech. Info. Serv. PB-174-705) ....... 51

In the Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-690

~ AIR POLLUTION VARIANCE BOARD

OF THE STATE OF COLORADO,

° Petitioner,

vs.

WESTERN ALFALFA CORPORATION,

Respondent.

On Wait oF CERTIORARI TO THE COURT OF APPEALS

oF COLORADO

BRIEF FOR THE RESPONDENT

I. QUESTIONS PRESENTED

1. Is a person charged with an air pollution violation af-

forded procedural due process when the only evidence

to support the charge is the uncorroborated observa-

tion of an investigator made, pursuant to statutory

authority, without the knowledge of the accused which

thereby foreclosed the accused of any opportunity to

present its own evidence as to the nature (opacity) of

the emissions at the particular time of the investigator’s

observations?

PSR AIOE A NYT A NN ERR RIEL RS

2. Does the taking of opacity readings on the premises of

an emission source without either a search warrant or

the consent or knowledge of the owner of the premises

constitute an unreasonable search or seizure under the

\ Fourth Amendment to the Constitution of the United

States?

3. Does the adoption and use of Ringelmann or opacity

measurements as standards of permissible emissions

violate the due process clause of the Fourteenth Amend-

ment to the Constitution of the United States, and do

such standards bear a réal and reasonable relation to

the end sought to be attained by the Act?

II. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

(Those cited by Petitioner’s Brief or appearing in Peti-

tion for Writ of Certiorari or Brief of Respondent in Opposi-

tion to Petition, all of which are adopted herein.) For

convenience, Respondent restates the following statutes:

1. Colorado Revised Statutes (C.R.S.) 1963, 66-29-2

(1967 Perm. Supp.), which reads as follows:

Section 2—LEGISLATIVE DECLARATION. It is

hereby declared to be the policy of the state of

Colorado to maintain a reasonable degree of purity

of the air resources of the state, which shall be

consistent with the public health, welfare, and

public enjoyment thereof, the industrial develop-

ment of the state, the propagation and protection

of human, plant, and animal life, and the protec-

tion of physical property and other resources. To

that end it is the purpose of this act to require the

use of all available practical methods to reduce,

PERLE EES EE LIN ERE LE IIL LILI IES TENET EE PLE Gat , . OP RRES

. il a $e 4 FTES sae

prevent and control air pollution in the state of

Colorado and to maintain a cooperative program

between the state and local units of government.

It is further declared that the prevention, abate-

ment and control of air pollution in this state are

affected with a public interest and that the pro-

visions of this act are enacted in the exercise of the

police powers of this state for the purpose of pro-

tecting the health, peace, safety and general wel-

fare of the people of this state.

2. Colorado Revised Statutes (C.R.S.) 1963, 66-29-3

(1967 Perm. Supp.) which reads in part as follows:

Section 3.—DEFINITIONS.—(1) When used in

this act, the following words and phrases shall

have the meanings ascribed to them in this section:

(6) “Air pollution” means the presence in the

atmosphere of one or more air contaminants in

quantities of characteristics, and of a duration

throughout the state or throughout such areas of

the state as shall be affected thereby, which are

injurious to human, plant, or animal life or to prop-

erty, or which unreasonably interfere with the

comfortable enjoyment thereof.

3. Colorado Revised Statutes (C.R.S.) 1963, 66-29-5,

which reads in part as follows:

Section 5—EMISSION STANDARDS IN DESIG-

NATED AREAS OF THE STATE (1) Subject to

such variances as may be granted pursuant to sec-

tion 11 of this act, the emission standards set forth

in subsections (2) through (6) of this section shall

be in full force and effect in each area of the state

designated by the division pursuant to section 8

Raiser ren wrersrs enn sce eits eon eane pene ITO] SPREE RE RENNES I PEELS NNN IN A oe athe

(1) (c) of this act, immediately upon such desig-

nation. |

(2) (a) No person shall discharge, or cause or

permit to be discharged into the atmosphere, from

any single source of emission, any air contaminant

for a period aggregating more than three minutes

during any hour which is:

(2) (b) As dark or darker in shade as that desig-

nated as No. 2 on the Ringelmann chart, as defined

in section 3 of this act; or

(2) (c) Of opacity equal to or greater than smoke

described in paragraph (b) of this subsection;

. Colorado Revised Statutes (C.R.S.) 1963, 66-29-8,

which reads in part as follows:

(2) (a) In addition to authority specified else-

where in this act, the division shall have the power

to:

(2) (d) Enter and inspect any property, premise,

or place for the purpose of investigating either an

actual or a suspected source of air pollution or air

_ contamination or ascertaining compliance or non-

compliance with any emission standard or any

order under this act. Any information relating to

secret process, or methods of manufacture, or pro-

duction obtained in the course of the inspection 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 fur-

nished promptly to the person who is suspected of

causing such air pollution or air contamination.

Ill. STATEMENT OF THE CASE

This case is concerned with the means employed by

the Department of Health of the State of Colorado in

securing a Cease and Desist Order against an alfalfa de-

hydrating plant located in Weld County, Colorado, on the

grounds of alleged air pollution resulting from the plant’s

operation. It was charged that Respondent’s emission was

of an equivalent opacity greater than that permitted by

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

The case began with a letter dated June 16, 1969, from

the Department of Health, Division of Enforcement, ad-

vising Respondent that 12 days earlier, on June 4, 1969,

an inspector from the Division had determined that Re- —

spondent’s emission exceeded the opacity standard of the

Colorado Air Pollution Control Act. The letter concluded

with a Cease and Desist Order to be complied with in 10

days. Respondent denied the alleged violation and asked

for a hearing before the Air Pollution Variance Board.

At the hearing, the inspector who had made the ob-

servation in question testified that he was on the premises of

Respondent unaccompanied by anyone else and without

the knowledge of Respondent’s employees. Since Respon-

gent did not know until almost two weeks later that it had

n inspected, it could offer no evidence of the opacity

of its emission on the day in question, although Respon-

dent did show that its emission was not in violation both

before and after the day in question. Since Respondent

could offer no evidence ta contradict the brief observations

of the enforcement official; the Board sustained the issu-

ance of the Cease and Desist Order. On appeal, the Dis-

trict Court of Weld County, Colorado set aside the decision

of the Variance Board. That Court held that while the

Ringelmann test was not unconstitutional and was a good

and sufficient basis to institute proceedings, more precise

tests were available which should have been given careful

consideration by the Board.

The Colorado Court of Appeals held that the Ringel-

mann test was presumptively valid and affirmed the

District Court on the basis that the secret nature of the

investigation prevented Respondent from having any op-

portunity to secure probative rebuttal evidence and that

therefore the subsequent hearing lacked the necessary

fundamental requisites of due process as Respondent could

not reasonably conduct a defense. In addition, the Court

stated that the on-premise inspection conducted without

a warrant or consent, constituted an unreasonable search.

The Colorado Supreme Court denied certiorari.

IV. SUMMARY OF ARGUMENT

This case presents not only the question of whether

Congress and the States may, consonant with the require-

ments of the Fourth Amendment, adopt a warrantless in-

spection procedure directed at air pollution control, but

also the question of whether any governmental entity

may, consonant with the requirements of the Due Process

Clause of the Fourteenth Amendment, adopt an inspection

scheme which permits the government to secretly take

Ringelmann or opacity readings of a continually dissipating

emission. A warrant requirement is only one of a number

of means to obviate governmental secrecy. The additional

question arises as to whether or not the employment of

Ringelmann or opacity measurements as absolute stan-

dards of determining whether or not a violation has oc-

curred is a violation of the Due Process clause of the

Fourteenth Amendment to the Constitution of the United

States.

Respondent’s rights of due process were violated by

the manner in which the inspection was conducted. Sec-

tion 66-29-8 (2) (d) of the former Colorado Act, au-

thorizing state enforcement personnel to enter and inspect,

contained no safeguards such as contemporaneous notice or

presentation of credentials which would prohibit a secret

inspection. By inspecting in secret, the inspector, to the

exclusion of Respondent, seized a mental impression of a

continually dissipating emission. Thus the Act, with its

lack of any feature which would require the presence of

the inspector to be known, permitted action to be taken

which affirmatively denied to Respondent any opportunity

to introduce probative evidence (the state of the emission

at the specific time of the inspection) at the subsequent

hearing and operated to deny a real and reasonable op-

portunity to defend. Due Process in the context of this

case requires that Respondent be given the opportunity to

view the continually dissipating emission at the time of

inspection by being made aware of the inspection.

The hearing itself, while in form non-objectionable, in

substance was a mere sham because of the prior statu-

torily sanctioned governmental stealth. The accused is

forced to proceed without any knowledge of the event in

question. The opportunity for cross examination is hol-

low at best since the accused, without knowledge of the

state of the emission at the specific time of the inspection,

has no point of reference from which to proceed. The

making of a charge under these circumstances is equiva-

lent to conviction. The only probative evidence of the

challenged emission in existence is in the memory of the

inspector, and it is impossible to challenge such evidence

when gathered secretly since it continually dissipates.

Only in certain carefully defined classes of cases can

yinvestigative entry be deemed reasonable in the absence

of consent or a warrant. The requirement of obtaining

consent or a warrant prior to inspection is at most-a mini-

mal limitation on administrative action. Such a require-

ment cannot be dispensed with in the case of a stationary

emission source which is available for inspection so long

as it continues to operate. While effective inspection may

require surprise, a requirement of obtaining consent or a

warrant in no way jeopardizes effective inspection as sur-

prise, a matter of timing, not secrecy, is preserved within

the confines of a consent/warrant inspection scheme. The

present case is distinguishable from the exceptions to

Camara in that there is no historical regulation of the

alfalfa dehydrating industry, there is no federal licensing

involved, and unlike the cases dealing with food, alcohol

and firearms, there is no need for immediate, on the spot

action. In addition, Colorado amended its law 14 days

after the issuance of the Cease and Desist Order to require

either the consent of the source or a warrant, and has now

operated under this system for nearly five years.

The entry statute involved here is not sufficiently pre-

cise to legalize a warrantless search. There are no express

limitations on time, scope and manner. These omissions

enable the inspector to enter upon Respondent’s premises,

conduct his inspection and depart, all without the knowl-

edge of any of Respondent’s employees.

The “Plain View” doctrine does not apply to the facts

of this case, since, under the Camara rationale the in-

spector did not have a right to be in the position on Re-

spondent’s premises from which he seized a mental im-

pression of Respondent’s emissions. Petitioner’s reliance

on the “Open Fields” doctrine is untimely, as there are no

facts in the record sufficient to sustain that reliance. To

the contrary, there is explicit testimony that the inspector

was on Respondent’s premises and presumably within Re-

spondent’s curtilage.

The determination of an emission’s lawfulness in

terms of statutorily prescribed Ringelmann of opacity

standards is unreasonable and wholly arbitrary. The

Ringelmann test measures only blackness; opacity, only

visual, as opposed to actual density. Neither bears any

correlation to the quantity of contaminant in a given

emission. Many factors such as the amount of light, atmo-

spheric haze, humidity, compactness of the emission, and

wind affect the visual reading which a particular emission

registers. To compound the problems in obtaining a fair

reading, the emission in question was composed primarily

of steam, a nonpollutant which obscured the alfalfa which

escaped from the dehydrating process.

These visual appearance tests selected to enforce the

Act bear no real relation to the ends of the Act, which is

phrased in terms of eliminating, controlling and abating

quantities of air contaminants. The blackness or opacity

of an emission is not in and of itself related to the quantity

of contaminant in the emission, but rather is a function

of the compactness of the emission, and is determined

essentially by stack diameter. Even if the end of the Act

is broadly construed as being for the protection of the

public health and welfare, the inapplicability of the means

still holds true. If emissions with an opacity of 40 per

cent are prohibited as being inconsistent with the public

health and welfare, then it is completely irrational to per-

mit an emission which is less than 40 per cent simply be-

cause it issues from a larger stack, and therefore has a lower

opacity and is not statutorily prohibited, but nonetheless

contains a greater quantity of air contaminant. It is the

quantities of air contaminants in an emission that affect

the public, not the emission’s blackness or opacity.

The imposition of sanctions on the basis of Ringelmann

or opacity standards is therefore unreasonable in that one

source may be held to have violated the law while another

source’s emissions are not violative, even though the latter

contain greater quantities of air contaminants and are

more harmful to the public.

V. ARGUMENT

A. The Act, As Applied to Respondent, Permitted Ac-

tion to Be Taken Which in Effect Denied Respon-

dent a Real and Reasonable Opportunity to Present

Evidence and Be Heard at the Hearing, and

Operated to Deny a Hearing on the Facts, and Is

Therefore Violative of Respondent’s Right to Pro-

cedural Due Process As Guaranteed by the Four-

teenth Amendment to the Constitution of the

United States.

Section 8-(2) (d) of the former Act, without requiring

prior presentation of credentials or some other type of

contemporaneous notice, permitted the secret taking of

opacity readings of a continually dissipating emission.

The inspector was on the premises of Respondent un-

accompanied by anyone else and without the knowledge

of Respondent’s employees. This unannounced entry pre-

cluded Respondent the opportunity to consent to or deny

the entry and also denied the Respondent the opportunity

to view the emission at that particular point in time. Ex-

pert testimony as to the condition of Respondent’s emis-

sions before and after the State’s ten minute inspection

would not have been competent given the fact that the

Act defines a violation in terms of excessive emissions

aggregating more than three minutes during any hour.

The uncorroborated testimony of the mental impression

seized by the inspector was the only evidence of a viola-

tion in the hearing which found against the Respondent.

The fact that Respondent did not have knowledge of this

taking of evidence by the inspector either by consenting

to the entry, or being shown a warrant or by notice of the

inspection immediately before the opacity reading was

taken, made it impossible to present probative contro-

verting evidence. As a result the substance of the hearing

was a mere sham, and the Respondent was precluded from

having a real opportunity to present a defense as a direct

result of the statutorily sanctioned governmental stealth

involved. The physical condition in question was no

longer in existence. The secret nature of the investigation

resulting in the intangible seizure enabled only the gov-

ernment to present probative evidence of the alleged vio-

lation, the object of which was effectively destroyed vis-

a-vis Respondent by the government because of the stealth

involved.

The U. S. Court of Appeals, Second Circuit, in Escalera

v. New York City Housing Authority, 425 F. 2d 853 (1970)

cited this Court in Goldberg v. Kelly, 397 U. S. 254 (1970) in

support of its statement that:

“The minimum procedural safeguards required by due

process in each situation, depend on the nature of the

governmental function involved and the substance of

the private interest which is affected by the govern-

mental action.” 425 F. 2d at 861.

The nature of the governmental function involved here is

conducting inspections pursuant to and enforcing an act

dealing with air pollution, a legitimate governmental con-

cern. Efficient administration of any act is necessary if

that act is to be viable. However, such administration can-

not be conducted in an expedient manner which disre-

gards the rights of those affected. This is especially true

where the substance of the private interest is its very

survival. If the Respondent did not comply with the

Cease and Desist Order it subjected itself to the possibility

of a conviction involving criminal penalties in the same

type of proceeding and upon evidence of the same nature

that is in issue here. Respondent submits that its interest

in being afforded due process and a fair hearing on balance

outweighs the government’s interest in prosecuting alleged

violations, and that the minimum procedural safeguards

adequate to insure constitutionality were absent.

As the Court stated in Morgan v. U. S., 304 U. S.

1 (1938):

“But a ‘full hearing’ - - - a fair and open hearing - - -

requires more than that. The right to a hearing em-

braces not only the right to present evidence, but also

a reasonable opportunity to know the claims of the

opposing party and to meet them. The right to sub-

mit argument implies that opportunity; otherwise, the

right might be but a barren one.” 304 U. S. at 18

(emphasis added).

In the proceeding in which it found itself after the,

Cease and Desist Order had been entered, Respondent was

denied the fundamental requisites of fairness which are

of the essence of due process. Because of the secret nature

of the inspection, it had no opportunity whatsoever to

meet the claims of the opposing party. This is comparable

to the situation in Ohio Bell Telephone Co. v. Public

Utilities Commission, 301 U. S. 292 (1937). There docu-

ments and information which served as the basis of the

decision in a rate case were secretly collected and re-

mained undisclosed. The telephone company was given

no opportunity to examine, explain or rebut such evidence

after it was assembled. The Court stated: “...even now

we do not know the particular or evidential facts of which

the commission took judicial notice. Not only are the

facts unknown, there is no way to find them out.” 301

U. S. at 302. Here Respondent had no knowledge of the

emission in question, since it was prevented from having

such knowledge by the manner in which the inspection

was conducted. The emission of its nature came and went

and it was impossible for Respondent, who was unaware

that the inspection was being made, to ever know the state

of the emission at the particular time of the inspection.

This Court in Greene v. McElroy, 360 U. S. 474 (1959)

stated:

“Certain principles have remained relatively immuta-

ble in our jurisprudence. One of these is that where

governmental action seriously injures an individual,

and the reasonableness of the action depends on fact

findings, the evidence used to prove the government’s

case must be disclosed to the individual so he has an

opportunity to show that it is untrue. While this is

important in the case of documentary evidence, it is

even more important where the evidence consists of

the testimony of individuals whose memory might be

faulty, or who might be perjurers or persons moti-

vated by malice, vindictiveness, intolerance, prejudice

or jealousy.” 360 U. S. at 496 (emphasis added).

Respondent submits that in order to provide a rea-

sonable opportunity to show that a charge is untrue a

special duty arises on the part of the State where the evi-

dence ceases to exist forever after it has been observed.

The State in exercising a right to inspect in such a situ-

ation bears the concomitant duty to exercise its right in

a fair and reasonable manner.

“Due process is an elusive concept. Its exact bound-

aries are indefinable, and its content varies accord-

ingly to specific factual contexts.” Hannah v. Larche,

363 U. S. 420 (1960).

The opportunity to defend necessary to satisfy due

process requires, in the context of this case, that Respon-

dent be given the opportunity to view the challenged

emission at the time that the inspection is being conducted.

In Escalera the Court stated that denying a tenant access

to the material contained in his folder, considered by the

government in the proceeding to evict the tenant, deprived

him of due process. The failure to provide the accused of

the opportunity to view the tangible evidence upon which

the decision will be based not only works against a rational

decision as to whether or not to pursue the matter at the

hearing level, but forces the party to proceed completely

in the dark. Secret inspections in a case such as this deny

the accused any opportunity to introduce evidence pro-

bative of the particular time upon which the charge is

based.”

Petitioner contends that due process was provided

because the Cease and Desist Order was issued after a

year and a half of “conference and conciliation.” (Pet. Br.

p. 48) The issue is not what happened in this period, but

the manner in which the inspection on June 4, 1969 was

conducted. Prior unobjectionable treatment does not in

any way excuse or outweigh a specific transgression of

Respondent’s rights.

1. Although the inspector did take photographs of the emis-

sion in question, they failed to substantiate his observations and

therefore the Board did not imtroduce them at the hearing. Basi-

cally they showed no more than a cloud of steam. The Board’s

failure to introduce these photographs is analogous to the situa-

tion where an individual is filmed when he is allegedly, intoxi-

cated. The failure of the State to introduce that film, would in

many courts result in a dismissal of the charge. If the fact the

photographs were not representative of the alleged violation, then

the contention cannot be made that the evidence was preserved

for Respondent.

It was with great surprise that Respondent received

the Cease and Desist Order. During the period of “confer-

ence and conciliation” Respondent had cooperated fully

with the enforcement personnel. It had installed new equip-

ment and had substantially reduced its emissions.? Perhaps

it was naive in believing that this cooperation had resulted

in compliance as far as the State was concerned and perhaps

it should have asked the State to furnish its certified ex-

perts to recheck its stacks at the beginning of the 1969

season. Nonetheless Respondent had no reason to believe

that a continuous monitoring program was necessary or

expected of it. The Amici advance a contention not found

in the Appendix, viz., that continual monitoring could be

maintained with an electric eye. (Brief of 34 named States

p. 18) Respondent can only state that the record likewise

is devoid of any testimony concerning the feasibility of

such monitoring, either technically or economically. Prob-

lems of condensation of moisture on the lens and lens align-

ment in the stack are unexplained. ;

Nor could Respondent be expected to have its own

employees take continual readings as Petitioner suggests.

(Pet. Br. 49) Individuals not affiliated with the state

were not certified by the state even though they may

2. There were discussions of plant modifications which could

be made to improve the emissions then having 40 per cent to 50

per cent opacity. (App. p. 29) Improvements were mage. “They

have done some work, considerable work in controlling the

emissions from all three plants.” (App. p. 24) “... they probably

have done as much or progressed as far along in this field as

anyone and I know, or our staff knows of... .” (App. p. 24)

The following year, in July of 1968, the plants of Western

were again inspected and it was advised in a letter from the

enforcement personnel of the Department of Health that “We note

with interest that you have made marked progress in the con-

trol of dust and smoke emission in the two plants in Weld

County.” (App. p. 29)

attend the state run “smoke readers” school.* Given the

fact that certification was arbitrarily denied them, any

testimony which they might advance would, a priori, not

receive the same weight as that accorded the certified

state inspector.

3. The administration of the Act by the Variance Board

contains another frailty in that as administered, it is impossible

for any subject of inspection to present evidence of Ringel-

mann or equivalent opacity readings which are of a weight

equal to that of the inspector’s even if such readings were taken

simultaneously with the inspector’s. This is because, as the record

extensively shows, of the manner in which the smoke reading

school, conducted at the taxpayers’ expense, certified its graduates.

Although the enrollment at the school was generally open to any-

one who wanted to attend, only state employees were-cértified

as smoke readers upon graduation, even though private indi-

viduals might have graduated while compiling a _ better

academic record. This arbitrary denial of certification, which

greatly affects the weight of the evidence presented, is funda-

mentally unfair. It understandably discourages private at-

tendance, and therefore self-enforcement, and is self-defeating.

See App. pp. 47-48; testimony of A. C. Bishard, Air Pollution

Control Engineer, State Health Dept.:

Q. If you pass and if you are sent there by the government

you can hand in your paper and they certify you. Right?

A. That is correct.

Q. And if you pass and you were not sent by (47) the

on sc there is no place to hand the papers in. Is

ere?

A. If you passed and weren’t sent by the government, you

are a guest.

Q. And you don’t get any official recognition.

A. That’s right. You are not intended to be certified.

Q. Is that so as to avoid conflict of expert testimony, as

you understand it?

A. That depends on your interpretation, yes.

Q. But you pass it one way or another, whether the govern-

ment certifies you or not.

A. Yes.

MR. CAWELTI: That’s all.

See App. p. 119, testimony of James R. Taylor, state inspector:

Q. From your knowledge of the smoke school conducted by

the state is there any way a non-publicly employed person

can be graduated from or certified by this school?

A. I think it is the decision of the division that they not be.

Q. They are not?

A. Right, sir.

See also App. p. 122.

In addition the burden on the state in providing the

opportunity to simultaneously view the emission is mini-

mal compared to the burden of maintaining a constant

opacity watch.

The required opportunity to defend in this context is

not just subjecting the testimony of the officer or in-

spector to cross examination, but rather permitting the

individual affected by the government’s action to have

first hand knowledge of the violation. Otherwise a rea-

sonable opportunity to defend is denied. Where the ob-

ject is continually dissipating this opportunity exists only

where the subject of the inspection is made aware that

tests are being made.

The opportunity for cross examination of enforcement

personnel, where the source has no knowledge of the state

of its emission at the specific time in question, is hollow

at best. Substantively the defense would have no refer-

ence on which to base its questions, and no way of know-

ing whether the inspector was mistaken or not. An ele-

mentary principle of cross examination is never ask a

question to which the answer is unknown, but here the

accused has no independent knowledge of its own as to the

true state of facts.

When secret inspections are authorized, the mere

making of a charge is tantamount to conviction. No pro-

bative evidence other than the testimony of the inspector

who made the charge is necessary, and where that evi-

dence is gathered in secret, it is impossible to challenge.

Through the course of these proceedings, Respondent has

tried to show that by inspecting in secret the state ac-

tually has denied this Respondent the opportunity to

defend. It can produce no probative evidence of its own

and is limited to the charade of cross examining the charge

maker. The mere statement of the charge (40% opacity)

is proof of its guilt. The board can have no evidence

before it to make a decision other than the testimony of

the charge maker.. By requiring notice of an inspection

and the opportunity to be present, it is clear that the

government’s goals can still be accomplished while at the

same time the accused is assured of a hearing in which

he has the opportunity to have firsthand knowledge of the

basis of the charge.

Contrary to Petitioner’s expressed fears, the decision

of the Colorado Court of Appeals does not require every

regulatory agency to afford industry the opportunity to

have an observer on hand whenever tests are made which

may be used as evidence in administrative proceedings.

The decision involves particular facts presented in this

case of drying alfalfa and the emissions unique to that

process and holds only that such an opportunity must be

afforded where the evidence is continually dissipating and

where lack of notice would thereby deprive the subject

of the inspection an opportunity to adequately defend

itself.

_ Petitioner and Amici erroneously apply Capler v. City

of Greenville, 298 F. Supp. 295 (N.D. Miss. 1969), to the

facts of this case. Capler, the accused, was an individual

with a memory and possessed first hand knowledge of his

evanescent condition. It is impossible for Respondent to

have first hand knowledge of anything except through its

employees. Public drunkenness, a common and well rec-

ognized condition, was observed by three officers. Here

only one inspector viewed a condition which is difficult

to interpret-and involves a large degree of judgment, even

with the proper training. The proper training was absent

here as the school did not have the capacity to create emis-

sions composed primarily of steam (see footnote 9, infra).

In Capler the failure of the city to make a test for intoxica-

tion did not in any way deny Capler the opportunity to

introduce probative evidence of his condition.

To merely require an informal opportunity providing

notice immediately prior to the inspection would not in

any way undermine the inspection’s effectiveness and

would insure that minimum of fairness lacking in the pres-

ent case, where, because of the wind-blown, steam-mixed

nature of the emission, the source has no knowledge of

the opacity of its emission during the specific time of the

inspection.

The valid state and federal interests in the air pollu-

tion area can be achieved within the confines of a statu-

torily authorized inspection scheme limited to eliminate

the abuses inherent in secret inspections. Secrecy is not

necessary to an effective inspection program. The Peti-

tioner equates secrecy with surprise. The presentation of

credentials or other identification does not eliminate sur-

prise, which is a matter of timing, not stealth. Surprise

is preserved where the inspector appears unexpectedly

and unannounced and presents his credentials. That this

is not an emergency situation is evident from the lengthy

conciliation process engaged in by the parties before the

Cease and Desist Order was issued. Section 66-29-9 of

the Act, “Temporary Orders Prohibiting Air Pollution of

Immediate Danger to Public Health”, specifically provides

the State with an adequate remedy in an emergency situ-

ation. It was not employed against Respondent. The

State’s opting for the non-emergency procedure accurately

characterizes the nature of the situation. ;

Petitioner plays with credulity when it states “ex-

pensive collection equipment” could be switched on to

frustrate inspections if a forewarning were given. (Pet.

Br. 41) There was no such equipment involved here.

Moreover, it is absurd to believe that if an expensive

capital expenditure had been made for abatement equip-

ment, that such equipment would not be in operation. As

the Appendix clearly demonstrates, no feasible collection

equipment was in existence for Respondent’s industry.*

If mere notice, less burdensome than a warrant require-

ment, would frustrate effective inspection as Petitioner con-

tends, it remains a mystery why Colorado amended its law

fourteen days after the Cease and Desist Order was entered

against Respondent to require consent or a warrant. This is

a legislative declaration that neither surprise nor secrecy

are needed for inspections to act as a credible deterrent to

4. See Appendix, p. 62, where Mr. Carrol Syverson, Execu-

tive Vice President of Respondent, elaborates on this point:

MR. FOSTER: Some of the previous testimony given

on behalf of the Department mentioned taking the effluent

now being discharged, putting it through water. Would not

that be additional control that would be feasible to eliminate

practically all of the emissions from the plant?

A. Ipresume that it would be possible, yes, which is a method

of scrubbing, I think it’s preferred to. It would be, in our

opinion, beyond the limits of economic feasibility for this

t of installation.

. Costwise?

A. Capital cost, yes, and the engineering, all things con-

sidered plus the operational cost. So then you immediately

create another pollution problem.

AULT: Any reason why a bag type collector

could not be used as a collection media as opposed to a

scrubber system?

A. For a good reason, and that is we have in the past, the

industry, our company we used this extensively with extreme

difficulty which the main reason is loss by fire. Fire is ever

. present here, an ever present condition. Bag type collector

means not only the loss of that unit, but perhaps your build-

ings with it.

MR. CHENAULT: If you had a bag house after (68)

the cyclone would you still be confronted with this? It seems

to me your cyclone is your source.

A. We are talking about a closed system here, really. You

got circulating systems of air here going through and fire can

be carried from one end to the other, through the whole

— would have to look at the flow chart to be able

o see this.

- ~ Pennsylvania v. Pennsylvania Power, 6 E.R.C. 1328

pollution. Petitioner has now operated under this law for

nearly five years. Surely Colorado would not enact a statute

that would frustrate its own inspection system, and cer-

tainly such a statute would have been repealed some time

in the last five years if the breakdown in enforcement

postulated by Petitioner had resulted.

Petitioner also emphasizes the need for quick action

because the emission is continually dissipating. While an

emission exceeding the prescribed standard for three min-

utes constitutes a violation, it is clear that such a time

period is used only as a minimum measure of the inspection

length necessary to institute conciliation proceedings which

work toward the abatement of the long term effect of air

pollution. Three minutes is not a magic number. A Cease

and Desist Order can be based on an emission of longer

length. The stationary source will remain where it is and

will be available for inspection. The flexibility required |

for quick action is not hampered at all by requiring

contemporaneous notice. No delay would result as opacity

readings such as afforded the basis of the charge here, are

made without aid of any equipment. Immediately upon

presentation of his credentials the inspector could step

outside and commence inspecting. No action could con-

ceivably be taken within that time which would frustrate

inspection. Furthermore, Petitioner’s argument in this

vein, in the context of an inspector stumbling upon a viola-

tion (Pet. Br. 42) ignores that inspections are conducted

in a preplanned, methodical and routine fashion. It

should be plain to anyone that the inspector here did not

just happen to drive by three of Respondent’s plants on

June 4, 1969:

The amici curiae, in urging this Court to grant cer-

tiorari stated:

“What holds for the -federal government should also

hold for the states, especially in the field of air pol-

lution controls. .. .” p. 14, Amicus Curiae in Support

of Petition for Writ of Certiorari.

Respondent can do no more than to point out that the

Clean Air Act, 42 U.S.C., Section 1857c-9 quoted by the

amici, in providing for entry “to, upon or through any

premises in which an emissions source is located”, autho-

rizes such entry by an inspector only “upon presentation

of his credentials”. (Pet. Br. 37). As opopsed to the former

Colorado Act, Respondent would affirmatively support this

type of statutory inspection scheme. The presentation of

credentials mandated in the Clean Air Act insures that se-

cret inspections do not take place and provides the necessary

safeguards that are glaringly absent from the former Colo-

rado Act.

It cannot be seriously contended that the presenta-

tion of credentials would frustrate inspections. Such a

requirement, in lieu of the consent/warrant scheme, would

pose even less of a burden.

The Amici advance three reasons in support of the

need of frequent, unannounced inspections if violators are

to be deterred. (Br. of 34 Amici, p. 17) None of the bases

of these reasons is undermined by requiring notice. Like

Petitioner, they confuse secrecy with surprise and like-

wise fail to perceive that surprise is a matter of timing,

not stealth, and is preserved in a contemporaneous notice

framework. A contemporaneous ge requirement (e.g.

presentation of credentials) does not in any way impair

surprise, flexibility or randomness. The Amici speak of

the need for conducting inspections “at a moment’s no-

tice” (Brief of 34 Amici, p. 17) and that is all that Re

spondent is contending is needed to satisfy due process in

the context of this case.

Respondent does not contend that it must be given ad-

vance notice of an inspection. Contemporaneous notice as

found in the Clean Air Act would hcwever permit Re-

spondent and others in its position to observe simultane-

ously with the inspector or immediately thereafter. The

methods of observation employed require no involved

equipment or time in preparing for the observation, leav-

ing unfounded any fears that any type of notice would

provide time for the subject of the inspection to correct

any violations which might exist. Such a request does

not seem particularly burdensome or at all unreasonable

when the end result is to put Respondent in the position

where another secret inspection and sham hearing would

subject it to a criminal conviction pursuant to § 66-29-15

of the former Act.

It must be emphasized that while imposition of the

Camara rules does insure fairness, as the subject of the

inspection will then be aware of the inspection if its con-

sent is sought or if a warrant is presented, a finding of the

inapplicability of Camara would not in any way alleviate

the necessity of informing the subject of the inspection that

an inspection is being made: Such a notice requirement, un-

concerned with consent or warrants, is found either ex-

pressly or impliedly in many air pollution statutes Other

than the Clean Air Act.

If proper yet nonetheless surprise preserving notice is

given at the investigatory level, the inspected parties will

not be left with the impression that they have been se-

cretly raided by government agents. The giving of proper

notice would tend to foster an atmosphere of cooperation

and conciliation between the parties conducive to the at-

tainment of the ends of the Act. The odiousness of govern-

mental secrecy was perhaps best summed up by Justice

Frankfurter in Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U. S. 123 (1951) when he said in a concurring

opinion:

“The heart of the matter is that democracy implies

respect for the elementary rights of men, however

suspect or unworthy: a democratic government must

therefore practice fairness, and fairness can rarely be

‘obtained by secret, one sided determination of facts

decisive of rights.” 341 U.S. at 170.

Secrecy and fairness in the general sense stand at

odds. In the context of this case they are especially inap-

posite as secrecy denies the opportunity to present proba-

tive evidence and thus denies a real and reasonable op-

portunity to defend.

B. The Taking of Opacity Readings on the Premises

of Respondent, a Stationary Emission Source,

Without Either a Search Warrant or the Consent

or Knowledge of Anyone Representing the Re-

spondent, Constituted an Unreasonable Seizure

under the Fourth Amendment to the Constitution

of the United States.

1. Preliminary Comment

Beginning at page 13 of its brief, Petitioner develops

an argument entitled “This Case Does Not Fall Within

the Purview of the Fourth Amendment.” However,

through the full thirteen pages there is no mention of one

fact in this case. It is, rather, an attack on Camara v. Mu-

nicipal Court, 387 U. S. 523 (1967) and a discussion of the

cases decided subsequently involving the applicability of

the Fourth Amendment to administrative inspections. The

attack on Camara is premised on what Pétitioner terms as

an unwarranted departure from certain revered princi-

ples of “Anglo-American” constitutional law. Given the

fact that there is no “Anglo-American” constitutional law,

Respondent submits that Petitioner’s view of the situation

is somewhat confused.

While Petitioner states that Respondent did not com-

plain about the propriety of the secret entry and inspec-

tion now subject to the Fourth Amendment debate in this

case (Pet. Br. 29), it is clear from the Appendix and the

briefs of Respondent both in the trial court and before

the Colorado Court of Appeals, that the propriety of the

entry was strenuously objected to in terms of its effect on

Respondent’s procedural due process rights. As the rec-

ord reflects, Respondent developed its case from this stand-

point, and consequently the record was devoid of anything

regarding the nature of Respondent’s premise and its re-

lation to the Fourth Amendment. That point first appeared

in the decision of the Colorado Court of Appeals. P|

As there was no record developed with regard to a

Fourth Amendment argument, the Court of Appeals oper-

ated in something of a void as to the complete and total

facts which would serve as a basis for a Fourth Amend-

ment analysis. Facing this situation as best it could, and

given the fact that the record was not as well developed

as it might have been the Court nonetheless analyzed the

rationale of this Court in Camara and applied that ra-

tionale to the facts of this case. The Court, with its con-

cern for fundamental fairness, applied the Fourth Amend-

ment as best it could on the basis of the record before it.

Respondent does not argue that the Fourth Amendment

applies without exception to every governmental inspec-

tion, but does submit that the protections inherent in that

amendment now do, and in the future should, continue to

apply in those administrative inspection cases where such

protection is necessary. It is a difficult and lengthy process

to draw the line separating those cases which require

Fourth Amendment protection for those which do not, but

nonetheless such a line must be drawn in order to pre-

serve those freedoms which are necessary to a free and

open society.

2. The Taking of on Premise Opacity Readings Is

Governed by the Decisions in Camara and See

and Does Not Fall Within the Carefully Defined

Exceptions to Those Decisions.

Seven years ago this Court, in Camara, dealing with

administrative searches by municipal health and safety in-

spectors, held:

“In summary, we hold that administrative searches of

the kind at issue heré are significant intrusions upon

the interests protected by the Fourth Amendment, that

such searches when authorized and conducted with-

out a warrant procedure lack the traditional safe-

guards which the Fourth Amendment guarantees to

the individual, and that the reasons put forth in Frank

v. State of Maryland and in other cases for uphold-

ing these warrantless searches are insufficient to

justify so substantial a weakening of the Fourth Amend-

ment’s protections.” 387 U. S. at 534.

On the same day this Court, in See v. City of Seattle,

387 U. S. 541 (1967), dealing with administrative searches

by municipal fire inspectors, extended the holding of

Camara when it stated:

“Tt is these rather minimal limitations on administra-

tive action which we think are constitutionally re-

quired in the case of investigative entry upon commer-

cial establishments.” 387 U. S. at 545.

Justice White for the majority held:

“We therefore conclude that administrative entry,

without consent, upon the portions of commercial

premises which are not open to the public may only

be compelled through prosecution or physical force

within the framework of a warrant procedure.” 387

U.S. at 545.

In spite of specific statutory authority, the warrant-

less searches attempted in Camara and See were proscribed

by this Court as being contrary to the basic purpose of

the Fourth Amendment. The basic purpose “is to safe-

guard the privacy and security of individuals against arbi-

trary invasion by governmental officials” and the amend-

ment which embodies it “thus gives concrete expression to

a right of the people which is basic to a free society.” 387

U. S. at 528.

The Camara majority enunciated the purposes behind

the Fourth Amendment’s warrant requirement, which pur-

poses, this Court stated, superseded the arguments that

the inspection statute made the least possible demand on

the individual occupant, was hedged with safeguards, and

that the wanpant process could not in reality function ef-

fectively as it would be a mere rubber stamp. The pur-

_ poses as set forth in Camara are to afford protection from

the following abuses of unauthorized entries:

When the inspector demands entry, the occupant has

(1) no way of knowing whether enforcement of the

statute involves inspection of the premises;

(2) no way of knowing the lawful limits of the in-

spector’s power to search; and,

(3) no way of knowing whether the inspector himself

is acting under proper authorization.

As the Court pointed gut, “the practical effect of this

system is to leave the occupants to the discretion of the

official in the field. This is precisely the discretion to

invade private property which we have consistently cir-

cumscribed by a requirement that a disinterested party

warrant the need to search.” 387 U.S. at 532. As the Court

stated in See, “The businessman, like the occupant of a

residence has a constitutional right to go about his busi-

ness free from unreasonable official entries upon his pri-

vate commercial property. The businessman, too has that

right placed in jeopardy if the decision to enter and in-

spect for violation of regulatory laws can be made and

enforced by the inspector in the field without official au-

thority evidenced by warrant.” 387 U.S. at 543.

The statute in question, Colorado Revised Statutes,

1963, §66-29-8 (1967 Perm. Cum. Supp.), authorizes ad-

ministrative entry in the following manner:

(2) (d) enter and inspect any property, premise or

place for the purpose of investigating either an actual

or a suspected source of air pollution or air contami-

nation or ascertaining compliance or non-compliance

within any emission standard or any order under this

article. Any information relating to secret process, or

methods of manufacture, or production obtained in

the course of inspection 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 causing such air pollution or air con-

tamination.

This statute is totally devoid of any limitation or re-

straint as to time or place as found in, for example, the

valid statute in United States v. Biswell, 406 U. S. 311

(1972), and leaves enforcement entirely to the whim and

caprice of the administrative official. A comparison with

the municipal ordinance involved in Camara is in point.

That statute reads as follows:

“Section 503—RIGHT TO ENTER BUILDING. Au-

thorized employees of the city departments or city

agencies, so far as may be necessary for the perform-

ance of their duties, shall, upon preséntation of proper

credentials, have the right to enter, at reasonable

times, any building, structure or premises in the city

to perform any duty imposed upon them by the mu-

nicipal code.” 387 U.S. at 526.

Although no “cause” requirement is found in this mu-

nicipal ordinance, it does impress several safeguards on

the exercise of discretion of the administrative official in

that they shall present “proper credentials” and enter only

at “reasonable times”. The Court also noted in footnote

10 that the administrative official could not obtain entry

by force at least where there is no emergency. Footnote

1 also mentioned that apartment house owners paid an an-

nual license fee in part to defray the cost of periodic in-

spections of their buildings. In this respect the apart-

ment owner’s reasonable expectation of privacy was mini-

mal, as opposed to that of alfalfa dehydrators who pay

no such similar fee. If the facts in Camara required the

utilization of the warrant machinery, then Respondent,

faced with a statute having none of the restraints and safe-

guards found in the Camara ordinance, should properly

be found to be entitled to the same protection afforded

in Camara and as applied to commercial establishments in

See.

The most important safeguard in the Camara statute

is the requirement that the inspector present his creden-

tials, although even this safeguard did not prevent the

imposition of the consént/warrant requirement, perhaps

because the case dealt) with residential rather than busi-

ness premises. This prese tion requirement is not found

in §66-29-8, and because of its absence the inspection on

June 4, 1969, involved in this case was carried out without

the knowledge of anyone representing Respondent. Se-

crecy, so conducive to arbitrary governmental action, is

abhorrent to a free and open society, and Respondent sub-

mits that such a safeguard, as found even in the cases where

the consent/warrant requirement is not imposed, is con-

stitutionally required on the facts of this case.

Camara and See dealt only with factual situations

wherein the administrative official identified himself, asked

for permission to enter and search, and was refused. The

administrative official here never identified himself or made

any attempt to inform anyone that pursuant to statutory

authority, he was conducting an inspection.

Certainly this case stands as an actual example of the

abuses mentioned in Camara which can occur as a result

of the unfettered exercise of discretion invested in such an

administrative official. Not only did Respondent have no

way of knowing (1) whether enforcement involved inspec-

tion, (2) the lawful limits of the inspector’s power of

search and, (3) whether the inspector was acting under

proper authorization, but because of the secret nature of

the inspection had no opportunity to ascertain any of the

three factors mentioned above. The inspection proceeded

with the inspector éntering Respondent’s premises. The

record shows that Respondent operated a dehydrating plant

on the premises. The public was neither invited nor ex-

pected to be on the premises as would be the case with

a retail establishment. Such secret, warrantless inspec-

tions, if permitted, hold forth the potential for further and

graver abuse.

Appellant cites United States v. Biswell, 406 U. S. 311

(1972), as authorizing the warrantless inspection involved

in this case. This construction is improper for a number

of reasons.

First, this Court in See qualified its holding to

exclude cases like Biswell when it stated “nor do we ques-

tion such accepted regulatory techniques as _ licensing

programs which require inspections prior to operating a

business or marketing a product.” 387 U.S. at 546. As

the Court stated in Colonnade Catering Corporation v.

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

“In See, we reserved decisions on the problems of

‘licensing programs’ requiring inspection, saying that

they can be resolved ‘on a case by case basis under

the Fourteenth Amendment standard of reasonable-

ness’.” 397 U. S. at 77.

In Colonnade the Court considered for the first time

the question of the application of the Fourth Amend-

ment doctrines enunciated in Camara and See to a sys-

tem that involved federal statutory authorization for entry.

A reading of the case indicates that under the particular

facts and circumstances of that case, a warrantless search

and seizure, if carried out without force, would not violate

the command of the Fourth Amendment. Two years after

Colonnade and five years after Camara and See, the Court

again faced a situation similar to Colonnade in Biswell.

There it was held that the warrantless search of a gun

dealer’s locked storeroom during business hours as part

of an inspection scheme authorized by the Gun Control

Act of 1968 during which the seizure of unlicensed fire-

arms was made, did not violate the Fourth Amendment.

Again, federal statutory entry authority was involved. As

See made clear, Colonnade and Biswell, because they in-

volved federal licensing, fall outside the purview of Camara

and See.

Biswell and Colonnade exemplify the carefully de

fined classes of cases which are exceptions to the general

rule enunciated in Camara that a search without proper

consent is unreasonable unless a warrant is obtained. Pe-

titioners’ interpretation of the Court’s intent in Camara

and See as limiting the scope of those cases “only to very

- limited situations” (Pet. Br. 16) misinterprets their clear

thrust.

Second, assuming arguendo that the construction of

the Fourth Amendment found in Colonnade and Biswell

has some bearing on this case it is submitted that they are

distinguishable to such a degree that their applicability

is unwarranted. Colonnade involved a federally licensed

dealer in alcoholic beverages. Federal agents from the

Alcohol and Tobacco Tax Division of the Internal Revenue

Service identified themselves to the manager and asked

his consent to open a locked liquor storeroom. Colonnade’s

president refused to open the storeroom, and the agents

ignored this refusal, breaking the lock on the storeroom

door, entering, and seizing bottles which they suspected

were being refilled contrary to federal law. Emphasizing

that a federal license was required to engage in the busi-

ness and that Congress had historically exercised close

control over the liquor industry, the Court concluded that

Congress had ample power “to design such powers of in-

spection under the liquor laws as it deems necessary to

meet the evils at hand”. 397 U. S. at 76. This power of

Congress extended to broad authority to fashion standards

of reasonableness for searches and seizures. However, and

RP eee 6 a ee

Tee

parenthetically, under the existing statutes, Congress had

selected a standard that did not include forcible entries

without a warrant and therefore found in favor of peti-

tioner Colonnade. The Congress did not fail “to make

rules governing inspection procedure” (Pet. Br. p. 22)

which therefore permitted the Fourth Amendment to ap-

ply. It applies regardless of whether or not a statutory

inspection scheme is provided. If adequate safeguards are

provided in the statute, it may then supplant the Fourth

Amendment warrant requirement, but the Amendment.

does apply to determine whether the statute is sufficiently

precise to permit the supplementation.

In Biswell a federal treasury agent identified himself

and requested entry into a locked gun storeroom. Re-

spondent, a gun dealer, initially refused entry but, when

given a copy of the federal statutory authority authoriz-

ing entry, permitted the warrantless inspection. The Court

sums up this interchange as follows:

“When the officers asked to inspect the respondent's

locked storeroom, they were merely asserting their

Statutory right, and respondent was on notice as to

their identity and the legal basis for their action.” 406

U.S. at 314.

Given the fact that the agent identified himself and

provided the dealer with a copy of the applicable statute

which authorized entry and enumerated the lawful limits

of the inspector’s power to search in terms of scope as

well as time, the potential abuses found in Camara were,

to a large extent, obviated. This was not the situation in

the present case where petitioner’s agent entered respon-

dent’s premises, obtained the evidence he sought, and van-

ished without a word to anyone.

Petitioner states that Biswell gives broad approval to

statutory authorization. (Pet. Br. p. 22) It must be em-

phasized that this “broad approval” is only within the con-

text of the carefully defined exceptions to Camara and See.

It is also worth mentioning that the Court qualified

this approval by stating that in the particular context of

Biswell where there is a regulatory inspection system of

business premises, which system is carefully limited in

time, place and scope, the legality of the search depends

upon the authority of a valid statute and not on consent.

By actually notifying the gun dealer of their presence, and

by providing him with a copy of their statutory authori-

zation, which was limited in time, place and scope, the

agents, even if they had not obtained the respondent’s con-

sent, did put the dent on notice as to their identity

and .the legal basis for their action, thus quelling the

abuses potentially inherent in a warrantless search which

abuses become a reality in the case where the entry and

seizure is made unannounced, as it was done here.

In line with the reasoning contained in Colonnade, the

Court then went on to further justify the warrantless

search. As in Colonnade, the dealer was federally li-

censed. While noting that federal involvement in the

regulation of interstate traffic in firearms did not have

quite the historical basis as did governmental control of

the liquor industry, the Court noted that there was an

urgent federal interest in preventing violent crime which

at least over the past few decades has been rapidly ex-

panding.

Subsequent federal district court cases have also up-

held warrantless searches authorized by federal statutes.

United States v. Del Campo Baking Manufacturing Com-

pany, 345 F. Supp. 1371 (D. Del. 1972) and United States

v. Litvin, 353 F. Supp. 1333 (D. D.C. 1973). Both of these

cases involved Food and Drug Administration inspectors

acting under the Federal Food, Drug and Cosmetic Act.

The Court in Del Campo held that the Biswell decision

dealing with a federally licensed gun dealer was based not

only on that fact but on the fact that like Colonnade, the

business was one that was pervasively regulated. Here we

are not dealing with a federal regulatory inspection scheme

nor with a pervasively regulated or federally licensed

business. By their very nature, pervasively regulated

businesses are so regulated because it has been legislatively

deemed necessary, due to the nature of the business and

the goods or instrumentalities with which they deal. Their

special natures in part support the decisions which uphold

the warrantless but not secret inspections found there

which are necessary to insure effective regulation.

The fact that the business is federally licensed and

pervasively regulated has a great bearing in determining

whether or not that business had a reasonable expectation

of privacy protected by the Fourth Amendment. For ex-

ample, the Gun Control Act which authorized warrantless

inspection in Biswell posed only limited threats to the gun

dealers’ expectations of privacy. As the Court stated:

“When a dealer chooses to engage in this pervasively

regulated business and to accept a federal license, he

does so with the knowledge that his business records,

firearms and ammunition will be subject to effective

inspection. Each licensee is annually furnished with

a revised compilation of ordinances that describe his

obligations and define the inspectors’ authority. . . .

The dealer is not left to wonder about the purposes

of the inspector or the limits of his task.” 406 U. S. at

316.

There is no federal licensing or pervasive regulation

of the alfalfa dehydrating business. Compared to Biswell

and similar cases, Respondent in this context has a very

high expectation of privacy in,terms of entrance onto its

property. Surely secret entries of this nature constitute

the abuse of discretion which is circumscribed by Ge ten-

ets of the Fourth Amendment.

The Court in Biswell distinguished See in an addi-

tional respect. Effective inspection in Biswell, it was

stated, unlike See, required -warrantless inspections and

such inspections, under the circumstances, must be deerned

reasonable official conduct under the Fourth Amendment.

The Court stated:

“We do not decide whether warrants to inspect busi-

ness premises may be issued only after access is re-

fused; since surprise may often be a crucial aspect of

routine inspections of business establishments. The

reasonableness of warrants issued in advance of in-

spection will necessarily vary with the nature of the

regulation involved...” 387 U. S. at 545, footnote 6.

The other cases cited by Petitioner upholding war-

rantless inspections were also premised upon the same

principle. The exigencies of the particular situations are,

and should be, largely controlling. For example, the

Court in Del Campo cited with approval a passage in the

Biswell decision which stated:

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

credible deterrent, unannounced, even frequent, in-

spections are essential. In this context, the prerequi-

site of a warrant could easily frustrate inspections;

and if the necessary flexibility at the time, scope and

frequency is to be preserved, the protections afforded

by a warrant should be negligible.” 406 U. S. at 316.

PETE LTR OO

Del Campo, involving adulterated food consisting in

part of whole insects and insect fragments prepared under

unsanitary conditions, delved into the legislative history

of the Food, Drug & Cosmetic Act. The Court stated, that

frequent, unannounced warrantless inspections were vi-

tally needed for public protection, primarily as the “Dan-

gers to life and health and such obvious frauds as palming

off horse meat for hamburger” could be expected to ensue

immediately in the absence of effective inspection.” 345

F. Supp. at 1376, footnote 12.

Litvin, involving food which had been exposed to and

contained rodent excretia and hairs; restated the “‘extreme

importance” of effective inspection to the public health.

es y stated that this fact, coupled with the pervasive fed-

eral regulation found within the food industry placed the

defendants’ business on an even keel with the liquor deal-

ers of Colonnade and the firearms dealer in Biswell. The

Courts in Del Campo and Litvin were dealing with a situ-

ation which, by its very nature, demands harsh inspection

lest tens or hundreds of people almost immediately suffer

death or serious illness. The immediacy of the need for

inspection is apparent in a situation such as this and ina

situation like Biswell, where the objects of the search could

be easily removed and hidden.

This immediacy, present in all cases cited by Peti-

tioner, distinguishes those cases from the factual situation

now before the Court. Cases involving food, firearms and

liquor fall then within what the Camara Court called

“those carefully defined classes of cases” where warrant-

less searches are permissible. An analysis of the types

of searches involved in these cases clearly demonstrates

that the nature of the search made in the present case is

such that it does not fall within the scope of the food,

firearms and liquor cases. In those cases and in others

cited by Petitioner (see, e.g. Youghiogheny and Ohio Coal

Co. v. Morton, 364 F. Supp. 45 (S.D. Ohio 1973) the in-

spectors in the course of their inspections are likely to

discover some prohibited articles which by their very na-

ture require immediate seizure and which could not have

been identified prior to the inspection, or conditions which

if not inspected present the spectre of sudden human death

and disaster (i.e. botulism, mine cave-ins). This is not

at all the situation here.

As discussed extensively in Argument A, state and

federal interests in the air pollution area can be and cur-

rently are achieved within the confines of a warrant/con-

sent system. Even though surprise in such an inspection

scheme is preserved if a warrant is obtained beforehand,

there is little need for surprise, given the fact that obser-

vations can be made at any time the plant is operating.

Indeed, Colorado has used the consent/warrant scheme for

five years. If frustration had resulted, presumably the

current Act would have been modified.

The Court in See stated: “The mission of the in-

spection system was to discover and correct violations

of the building code, conditions which were relatively dif-

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

inspections ‘sufficed and inspection warrants could be re-

quired and privacy given a measure of protection with

little or any threat to the effectiveness of the inspection

system at issue.” 406 U.S. at 316. Here as long as the

plant continues to operate the state may take its read-

ings, and periodic inspections do suffice.

The statute in question was not upheld, as Petitioner

contends (Pet. Br. 38), by the Colorado Supreme Court in

Lloyd A. Fry Roofing Co. v. The State of Colorado De-

partment of Health, 499 P. 2d 1176 (1972). Rather the

law now in effect was considered, as the Court abun-

dantly made clear. (499 P. 2d at 1178) Furthermore, the

entry section of the new law is totally different in that

secret inspections are obviated by the requirement of _ob-

taining a warrant or consent. The other arguments ad-

vanced in this brief regarding the Act’s constitutionality

were not made in Fry.

Petitioner also cited United States v. Business Build-

ers, Inc., 354 F. Supp. 141 (N.D. Okla. 1973) in support

of its contention that a valid statute authorizing inspec-

tion supplants the need for a warrant. (Pet. Br. 40) This

case, like Del Campo and Litvin involved the seizure of

contaminated food. In all cases cited by Petitioner as ex-

amples of statutes permitting warrantless inspections, the

inspectors identified themselves. None of the inspections

were secret. Granted, consent is immaterial if a valid

statute is in force, but the Colorado statute was not suf-

ficiently precise to legalize warrantless inspections. Time,

place and scope are not the only limitations which must

appear in a valid statute. As Business Builders pointed out,

the method or manner in which the inspection is conducted

is a necessary limitation on the arbitrary exercise of gov-

ernmental discretion. 354 F. Supp. at 143.

The record clearly shows that the inspection was con-

ducted without the knowledge or consent of the Respon-

dent, but Petitioner attempts to weave an argument of

implied consent. As mentioned at p. 25, supra, Respon-

dent interposed strenuous objection to the secret inspec-

tion at all stages of this case, in Fourteenth, not Fourth

Amendment terms. Because of its secret nature Respon-

«dent never had the opportunity to actually consent or ob-

ject to the inspection, which is why Petitioner can make

the misleading statement there is nothing in the record

to show Respondent had not consented or objected to the

inspection. (Pet. Br. 29) Petitioner’s reliance on United

States v. Duffy, 282 F. Supp. 77 (S.D. N.Y. 1968) is mis-

placed and its reasoning convoluted. In Duffy, like Bis-

well a liquor case, the inspectors identified themselves.

As Duffy did not unequivocally refuse access, it was held

that he consented to the inspection made without stealth.

This is to be distinguished from the present case where

the inspection was secret and as a result, Respondent was

given no opportunity to deny. To ascribe to total silence,

the attributes of a nonvolitional consent is unwarranted

where the inspector did not identify himself and where

no opportunity to manifest any type of consent or denial

was present.

Petitioner’s discussion of the “consent issue” (Pet. Br.

pp. 20-21) as discussed in United States v. Thriftimart, Inc.,

429 F. 2d 1006 (9th Cir. 1970), cert. den. 400 U. S. 926

(1971) omits any mention of the most important fact in

that case. “Here the managers were asked for permission

to inspect.” 429 P. 2d at 1010. The inspection was not

conducted in secret and without knowledge of the in-

spectee. If the evidence in Thriftimart was continually

dissipating, the situation confronting the Court in this case _

would not have arisen. This was a Food, Drug and Cos- =

metic Act case where surprise is crucial and that need is

met even though secret inspections are not permitted un-

der the governing statute.

3. The “Plain View” and “‘Open Fields’’ Doctrines

Do Not Apply to Opacity Readings Taken on

Respondent’s Premises.

The “Plain View” doctrine holds that objects falling

in plain view of an official who has a right to be in a po-

sition to have that view are not protected by the Fourth

Amendment. Petitioner ignores the fact that before the

—

doctrine applies, the official must have a right to be in the

position to have the view. Harris’ v. U. S., 390 U. S. 234

(1968). For example, an officer making a lawful arrest

has the right to be in the position to have the view whereby

he sees something illegal. U.S. v. Vilhotti, 452 F. 2d 1186

(2d Cir. 1971). Again in United States v. Capps, 435 F. 2d

637 (9th Cir. 1970), the Court applied the plain view doc-

trine, in holding that a search and seizure was legal and

in permitting the seized items to be introduced into evi-

dence. In that case, the police had a right to be in a po-

sition to observe the item in plain view which was seized.

The Camara rationale, applicable to this case, holds that

the inspector did not have the right to be on Respon-

dent’s premises from which position he made his observa-

tion and therefore any argument that the plain view doc-

trine applies in this case must necessarily fail.

Petitioner correctly points out that observations made

from an “open field” are not entitled to the protections of

the Fourth Amendment. The Court in Capps described the

open fields doctrine when it stated,

“The Fourth Amendment protections do not extend to

the ‘open field’ area surrounding a dwelling and the

immediately adjacent curtilage. . .” 425 F. 2d at 640.

_ The problem with the application of that doctrine to

this case is the fact that the inspector himself testified

that he was on the premises of respondent at the time he

made his observations. He did not testify that he was in

any open field adjoining respondent’s building and the im-

mediately adjacent curtilage. It is certainly fair to as-

sume that if the inspector was on the premises of respon-

' dent he was within the curtilage given the fact that the

area on which he stood was immediately adjacent to the

plant. Fullbright v. United States, 392 F. 2d 432 (10th Cir.

1968). Petitioner is late in relying upon this doctrine

when it has failed to show facts in the record sufficient

to apply it. In contrast to this gap in the record is the

explicit testimony that the inspection was made on the

premises of respondent. This is not the situation as in

Fullbright where investigators stationed themselves out-

side the curtilage and carried on their investigation with

the aid of binoculars. Nor is this the situation in Mc-

Dowell v. United States, 383 F. 2d 599 (8th Cir. 1967)

where the defendant attempted to construe fields 1/4 to

1/2 mile away from the farm buildings as curtilage. Un-

less arbitrary assumptions are made unsupported by the

record, there can be no application of the open field doc-

trine to the actions of and evidence gathered by the in-

spector here.

Petitioner cites Katz v. U. S., 389 U. S. 347 (1967) for

the proposition that what a person knowingly exposes to

the public is not subject to Fourth Amendment protection.

The situation in Katz was concerned with a phone con-

versation made from a public phone booth and the Court

there held that even though the conversation was made

in what might be considered a public place, it was con- |

stitutionally protected from warrantless search and seiz-

ure by the government officials. As to inspections made

on private premises, it would still appear to be the

rule that the official in question must have proper au-

thority for being on the premises before he may testify

as to the fruits of his search. This point was discussed

supra when the plain view doctrine was considered. This

Court has always been concerned with meddlesome of-

ficials prying about on one’s private premises. Suppose

that while walking on the premises, this official observed

a stand of marijuana. Could it be seriously contended

that: he could snatch a stalk of that growth and take it into

—o

Court without having obtained a warrant to do so? Re-

spondent submits that there exists a reasonable expecta-

tion of privacy from all warrantless and undisclosed of-

ficial inspections which reasonable expectation is protected

by the Fourth Amendment.

C. The Former Air Pollution Control Act in and of

Itself and As Applied to the Respondent in This

Action Is Unconstitutional in That It Works in

Such a Manner As to Deprive the Respondent of

Its Property in Contravention of the Due Process

Clause of the Fourteenth Amendment to the Con-

stitution of the United States.

1. The Tests Employed in the Former Act for

Determining Whether the Maximum Permis-

sible Discharges for Air Contaminants Have

Been Exceeded Are Arbitrary, Capricious and

Unreasonable and Are So Subjective As to

Offend Traditional Notions of Fair Play and

Substantial Justice.

Respondent was not in a position to initially shape the

questions presented for review in this proceeding and un-

der the provisions of Supreme Court Rule 40 realizes that

it is limited in presenting additional questions. However,

a question upon which evidence was received in the lower

courts and which was fully briefed and argued by the par-

ties is that concerned with the constitutional adequacy of

the visual determination standards which were used as the

sole basis for ascertaining violations and applying crimi-

nal sanctions: Respondent submits that the Court may

notice the plain error of Petitioner in failing to raise this

issue for consideration and hear the parties at this time.

In October, 1973, a United States Court of Appeals in

Portland Cement Association v. Ruckelshaus, 486 F. 2d 3775

(D.C. Cir. 1973) involving the action of the administrator

of the Environmental Protection Agency in promulgating

stationary source standards, recognized the arbitrariness

of opacity standards:

_ “It may be, as EPA argues that the opacity test

is an important enforcement tool, and that the results

of an opacity test, which is normally performed at

some distance from the plant by trained observers,

offers a cheaper and faster method of determining

compliance than enforcement of the particulate con-

centration standard. However, it is one thing to use

a method of testing to observe possible violations of a

standard; it is another to constitute that method as the

standard itself. If the opacity test is to be a standard,

and if violations can result in enforcement actions

without further testing, the standard must be consis-

tent with the statute and congressional intent.

The thrust of the manufacturers’ comments to

EPA, and repeated here, is that the opacity test is ar-

bitrary—that inspectors will be unable within any

reasonable degree of accuracy to determine whether

permitted opacity is 10%.

The critical question is how accurate can opacity

observations be. On this point we essentially have

before us only the contentions of the parties. The

manufacturers do point to a test conducted for the

National Center for Air Pollution Control (U.S. Dept.

H.E.W.) where six trained smoke inspectors evalu-

ated a white training plume known to have 0% opacity.

All six inspectors rated the plume at more than 0%

and 3 evaluated it at more than 20%. A plume known.

to be 20% opacity was rated higher than 20% by 5 or

6 inspectors (one rated it lower) and 2 of them rated

( 45

it at almost 40%. Problems may also be posed for

deciding when opacity is due to water content and

when it is not.” (Emphasis added) 486 F. 2d at 400-

401.

As the Court in Portland Cement implicitly found, the

very nature of the tests and in particular the manner

in which they are made, clearly demonstrates that they

are imbued with a constitutionally impermissible degree

of arbitrariness and capriciousness to serve as standards.

The former Act prescribed two methods for determining

violations. Section 66-29-5 (2) (b) precluded the dis-

charge into the atmosphere of a contaminant “As dark

or darker than the shade as that designated as No. 2 on

the Ringelmann Chart, as defined in Section 3 of the Act”;

Section 66-29-5 (2) (c) stated that no person shall dis-

charge into the atmosphere any contaminant “Of opacity

equal to or greater than smoke described in Paragraph

(b) of this subsection.” In other words, it is unlawful to

discharge any contaminant other than smoke which is

more opaque than its equivalent on the Ringelmann Chart.

Both tests are visual determination standards. Respon-

dent is alleged to have violated the equivalent opacity

section. Its discharges, consisting mostly of steam, were

white in color and were therefore not susceptible to a

Ringelmann reading, as the Ringelmann Chart applies only

to black or very dark smoke.

The Ringelmann Chart was first brought to the United

States from Paris, France, the residence of its inventor,

Maximillian Ringelmann, and since 1904 has been incor-

porated into various pollution control ordinances. It was

for many years the only air pollution test available. Re-

spondent submits that the test’s exclusivity, rather than

its scientific merit, has been responsible for its judicial

- acceptance to date, and asks this Court to give serious con-

46 »

sideration to the following discussion, particularly in view

of the fact that there now exist numerous widely used tests

of an objective and stientifically accepted nature which in-

validate the basis of the acceptance of visual determina-

tion methods.’ Some, but not all of these are: 1) sedi-

mentation filtration, 2) filtration, 3) impingement, 4)

photoelectric, 5) electric precipitation and»§) thermal pre-

cipitation. While some of the following scientific points

have been raised in previous cases, none of those unsuc-

cessfuleattacks on visual determination standards have

been made utilizing the constitutional arguments presented

here and in the particular factual context of this case.

The most recent edition of the chart consists of a cir-

cular piece of paper divided into six sections numbered from

zero to five. Section zero is completely white; Section five

is completely black and Sections one to four consist of in-

tersecting black lines on a white background. Some charts

omit either both or one of the totally black/totally white

sections. The black lines are narrow on Section 1 and be-

come progressively wider through Section four. Originally

the chart was posted at a distance of 50 feet or more from

the observer, and when so posted, the black lines and the

white spaces supposedly merged into each other by a proc-

ess of optical illusion, so as to present the appearance of a .

series of gray areas of differing shades. Recent editions of

the chart have consisted of small hand-held models that are

to be read at arm’s length. It is arbitrarily assumed that

the optical illusion produces grey areas of varying shades

identical in every case irrespective of the eyesight and/or

arm length of the particular inspector. In addition, some

charts give the equivalent opacity for black or dark emis-

sions by correlating color to visual density, e.g., a reading of

5. Henz, “The Ringelmann Numbers as an Irrebuttable Pre-

sumption of Guilt—as Outdated Concept.” 3 Natural Resources

Lawyer 232, May, 1970.

OS NDE Oe ET err ESCH. Pa Se ee

SRR SR RA Fd AG

PERG PRA emnee

SEAM ESI RSS, RENEE FSR Pep sa RIES eam ke RUR cagpeE RENEE

> wate

two (blackness) on the Ringelmann Chart translates as a

40% equivalent opacity. Equivalent opacity also applies to

white emissions. The Ringelmann Chart looks to color (the

denser the smoke, the blacker it is) and equivalent opacity

. looks to the amount of light which passes through a non-

black emission. (The denser the emission, thé less light it

permits through.) Estimates of the visual density of black

or dark emission may be made by glancing from the chart to

the emission and picking out the section of the Chart which

most nearly resembles the emission. The equivalent opacity

reading here was made without a chart on the basis of com-

parisons with plumes observed in a smoke reading school

conducted by the State. As the chart intrinsically is inca-

pable of applying to white emissions, opacity for such emis-

sions can only be detected by direct and unaided observa-

tion, unless, presumably, more sophisticated equipment is

used.

Equivalent opacity measures the darkness, or visual

density of a column of smoke or any other emission. In

short, this is the amount of light that passes through the

column. A priori, a visual observation of the given quan-

tity of air minant emitted into the air in a given time

is subject to infinite number of Ringelmann and/or

equivalent opacity determinations based upon the follow-

ing factors: the amount of available light, which in turn is

dependent upon cloud cover, time of day, humidity, other

atmospheric haze, and the seasonal relationship of the earth

and the swt, the relationship of the observer to the source

of available light, the wind velocity, and the compactness

or diameter of the column of smoke, which, in large measure

is determined by the diameter of the stack from which it

issues. Without regard to actual quantity of contaminants,

the more compact a given amount of contaminant the

greater is its visual density, and therefore its Ringelmann

or equivalent opacity readings. Conversely, the more dis-

persed a given amount of'contaminant, the less its visual

density, and therefore its Ringelmann or equivalent opacity

readings. In addition, there are several other factors pe-

culiar to the dehydrating industry discussed at p. 52,

infra. Each of these factors and the combinations and per-

mutations thereof, leads to different opacity measurements

of a given quantity of air contaminant passing into the air

in a given amount of time. Visual sightings with or with-

out the Ringelmann Chart cannot, in any way, take into

account all of these factors so as to arrive at an objective

determination. The visual observations and correlations

resulting therefrom are based solely upon prior observa-

tions at the smoke reading school which observations, were

intended to serve as a model in the inspector’s memory

and as a comparison for what actually is observed in the

field, irrespective of the above mentioned factors.

“Density”, when used in air pollution work has been

defined by Lionel Marks as the volume of soot or other par-

ticulate matter in each cubic foot of gas which escapes from

a stack.® This is actual density, as opposed to the visual den-

sity measured by the visual determination tests. Obviously,

the more narrow the stack, the more compact is the given

quantity of contaminant passing up the stack, and the

greater the visual density. This demonstrates that the wide-

spread belief that the appearance of smoke is an indication

of actual density is entirely fallacious. Marks, in a section

entitled “Inadequacy of the Ringelmann Chart”, which ap-

plies to equivalent opacity readings as well, conducted sev-

eral experiments under controlled conditions which sub-

stantiate the statements contained in the preceding sentence.

For example, smoke of the same actual density was emitted

simultaneously from stacks 3 feet in diameter and 12 feet

6. Marks, Lionel, Standard Handbook for Mechanical En-

gineers, 7th Ed., McGraw-Hill Book Co., New York, 1969.

in diameter. The Ringelmann readings were No. 5 for the

3-foot stack and No. 1 for the 12 foot stack. In other

words, the visual dénsity of a column of smoke and there-

fore the chance that it will violate Colorado standards is

inversely proportional to smoke stack. diameter. The

greater the diameter of the stack, the less chance there is

of violating theAct. To say that one industrial concern has

violated the Act because it emits a given quantum of air

contaminant ina given time period through a stack 3 feet

in diameter is absurd when another industrial concern

could emit an identical amount of air contaminant in an

identical time »eriod through a stack 12 feet in diameter

without violating the Act. Another experiment substan-

tiated Marks’ conclusion regarding the relationship of

stack size.to vsual density. Four glass tubes of varying

diameters were filled with water to identical heights. Fif-

teen drops of India ink, consisting of soot suspended in a

liquid, were aided to the largest tube and well stirred.

Identical amounts of the resulting mixture were then

poured into the remaining tubes with the effect being that

the Ringelmana readings of the liquid smoke increased as

the diameter o/ the tubes decreased, even though the actual

amount of particulate in each tube was identical. As

Marks said, “These demonstrations indicate clearly that a

visual determination of smoke density has no significance

in terms of actual smoke density.”

The E.P.A. conducted field testing programs to charac-

terize particulate emissions from alfalfa dehydrating plants

and to evaluate the cost/effectiveness of available control

methods. Their conclusion corroborates Respondent's con-

tentions regarding the lack of correlation between opacity

and quantity.

“As a consequence of drying, especially overdry-

ing which frequently occurs with high productivity, a

very fine particulate smoke is generated. Although

the smoke may constitute only a small mass emission,

it scatters light very effectively and may frequently

result in noncompliance with visual opacity regula-

tions. Moreover, the smoke readily penetrates con-

ventional medium efficiency control devices making

effective control practically impossible. Control of

dryer generated particulate emissions is also compli-

cated by the large volume of moist carrier gases.

During the testing program, it was learned that

the visual appearance of a plume is not a reliable in-

dicator of compliance with a mass limit regulation.

If overdrying occurs at a plant where the primary col-

lector is relatively efficient, the opacity limit might be

exceeded even though total mass emissions are in com-

pliance with the mass limit regulation.‘

Wind has a decided effect on both Ringelmann and

opacity readings. On a still day, smoke ascends vertically

with a velocity which diminishes as it rises. With a brisk

wind, smoke is immediately diluted with air upon leaving

the stack with the result that its visual density is re-

duced. Therefore, an emission with a given actual density

issuing from a stack would appear more dense on a calm

day than on a windy day.

The background behind the emission as well as the

other factors mentioned above can have a decided effect

upon the reading. To prove the importance of background

on visual determinations, Marks substituted a gray back-

ground for a brightly lit, light background in the India ink

experiment. The difference of appearance of the simulated

7. “Particulate Emissions From Alfalfa Dehydrating Plants

-Control Costs and Effectiveness”—Environ. Pro. Tech. Series,

EPA 650/2-74-007, Jan. 1974. See particularly Table 16, p. 72.

smoke in the glass tubes was marked, with a darker back-

ground increasing the apparent visual density.

Numerous experts have recognized the high degree of

subjectivity inherent in a visual determination test result-

ing from the factors described above, and the test’s inappli-

cability to measuring actual density. Among these experts

is the Environmental Protection Agency, whose precursor

the National Air Pollution Control Agency, conducted a

test which exposed the glaring deficiencies in visual deter-

mination tests.*

Essex Chemical Corporation v. Ruckelshaus, 486 F. 2d

427 (D.C. Cir. 1973) decided several months subsequent to

Portland dealt with the same issue in an identical manner

when it stated:

“... The per cent of opacity present in a smoke plume

—and the persuasive challenges on the part of the

petitioners, found that further consideration and ex-

planation of the efficiency and objectivity of the test

was necessary prior to its adoption as a standard.” 486

at F. 2d 432.

In addition the objection was raised as to the EPA’s

failure to provide that lesser standards or no standards at

all should apply during startup, shutdown or mechanical

malfunction. The Colorado Act is similarly deficient. The

Court stated:

“We agree that such variant provisions appear

necessary to preserve the reasonableness of the stan-

dards as a whole and that the record does not support

the ‘never to be exceeded’ standard currently in force.

Thus we remand for further consideration of this issue,

8. See App. pp. 109-111, concerning Optical Properties and

Visual Effects of Smoke Stack Plumes, Pub. Health Serv. Pub.

999-Ap.-30 (1967 National Tech. Info. Serv. PB-174-705) at 28.

SOR EEL TON NPR RENEE NNER ALORS a

wer . SDT FCAT

noting that the proposed regullation should plan an

integral role in any reconsiderattion.” 486 F. 2d at 433.

The application of visual readings to respondent’s

alfalfa dehydration industry poses even more problems.

In the dehydration process, freshly crut alfalfa is dried with

the heat of burning natural gas. Water vapor, as much as’

22,000 pounds per hour, is releasedi into the atmosphere.

(App. p. 61) Natural gas produces no visual smoke. The

emission consists wholly’ of steam :and some minute par-

ticles of alfalfa which escape frorm the dehydratién pro-

cess. Since steam is not a pollutamt by the terms of the

former Act, and since water vapor control is not within

‘the purview of the former Act (Stection 66-29-3-(5) Col.

Rev. Stat.) the enforcement agent: readily admitted that

the reading of a plume cannot be taken until the water

vapor has been absorbed into the «atmosphere. On given

days, this can be anywhere from a few feet from the top.

of the stack on a hot afternoon to 10)0 yards above the stack

on a cool, crisp morning when vast quantities of steam are

visible for many miles. The difficullty of reading the plume

under these circumstances is obviows, especially in view of

the fact that the agent testified tlhat he has received no

training in reading stack emissions ‘containing steam.® The

9. App. p. 119, Mr. James R. Tayloor, an air pollution special-

ist with the Colorado Department of Heaalth, testified:

“Q. Were you ever trained at tmis school you referred to,

or otherwise, in making opacity readings where steam was

also present in the source of emission?

A. No,sir. We don’t have that capability.”

App. p. 130, Mr. Joseph Palumbo, assiistant director, Div. of Air

Pollution Control, State of Colorado, testtified:

“Q. You spoke of a trained insjpector could make allow-

ance for the presence of steam in emission. Tell me, do you

have any device in your smoke scthool to emit steam so that

the inspector can observe it along with the other matter that

is being emitted?

A. No, we don’t have any method of introducing steam.”

FEDER EME A OE BR i

smoke reading school did not provide any training whatso-

ever in distinguishing water vapor or steam, which are non-

pollutants. The inspector testified that he would look at

the “blue haze at the end” or “at the point of steam dis-

sipating.”"® He did not, however, testify that he had at-

tempted to adjust the visual opacity observed by him for

the presence of steam. He testified as to unadjusted

opacity reading. How much steam was present was any-

body’s guess, and apparently the inspector did not even

attempt to guess.

A plume containing steam is termed a “wet plume”.

The Court in City of Portland v. Fry Roofing Co., 495 P. 2d

751 (1972) recognized that a wet plume cannot be read

where the humidity was in excess of 70%. This is only

one more variable that exemplifies the subjective, arbitrary

and capricious nature of opacity readings, particularly in

the alfalfa dehydrating industry. The Act does not pro-

hibit the reading of a wet plume when the humidity is in

excess of 70%, a further example of the constitutionally

impermissible lack of adequate procedural standards and

safeguards in the Act. There was no testimony that the

humidity was such that the reading of the wet plume in-

volved was justified and presumably the enforcement

agents, trained at a school where steam emissions were

never viewed, were not instructed in the art of fairly view-

ing an emission of steam.

Opacity readings are subject to another variant, im-

possible to discount, which renders any determination

totally arbitrary. Opacity in effect measures the amount

of light passing through a given emission or, in other words,

the percentage of a background object which is obscured

by the emission when viewed through the emission. The

10. App. p. 35.

ee a Rtas aa

Act prohibits emissions which in effect obscure 40 per-

cent or more of the background behind the emission. In

order to make a proper reading, the inspector must focus

on a particular object located behind the emission. The

atmospheric haze between the inspector and the emission

and between the emission and the background object neces-

sarily is cumulated in his finding. For example, if general

atmospheric conditions obscure 20 per cent of the object,

a view through the emission which obscured 45 per cent

of the object means that in reality the emission in and of

itself has an opacity of only 25 per cent. The effect of haze

increases as the distance between the inspector and the ob-

ject increases. For example, on a clear day all of us can see

an automobile whether we are standing 5 feet or 100 feet

from it. However, in a heavy fog, while the view may be ob-

scured to the extent of 25 per cent from 5 feet, the car may

be totally shrouded from 100 feet.

People v. Plywood Manufacturers of California, 291 P.

2d 587 (1955) stated that a violation was present “if the

contaminant has the substance that, fairly viewed from any

position, gives it a shade as dark or darker than Ringel-

mann No. 2 no matter how light in color it may look to

someone situated at another vantage point.” The same

statement applies to an opacity reading of 40 per cent or

greater. Respondent does not take exception to this state-

ment, but emphasizes that, with any visual determination,

it is impossible to fairly view the emission unless the Act

would prescribe visual determination standards pertaining

to the conditions required for the emission to be fairly

viewed. Such standards are lacking in the Colorado Act

and were lacking in the former Act.

Taking given quantities of contaminants passing into

the air at the same rate on two different days, totally dif-

ferent visual determination measurements could result be-

cause of the many variants which affect such a reading.

It is completely irrational to say that the discharge of a

given amount of contaminant over a given time is violative

of the Act one day but not the next, because overnight

stacks of excessive diameter have been installed from which

the given quantity of contaminant emits in a more dis-

persed form, thus registering a lower visual density. This

exemplifies the inherent unreasonableness of the visual

determination methods which look only to visual, as op-

posed to actual density.

Aside from standards of appropriate conditions for em-

ploying visual determination measurements, such measure-

ments themselves, unconcerned with quantities of con-

taminants, work against effective abatement and correction

of existing problems. Any party subject to regulation.

must guess as to what design limitations are placed on any

new capital equipment and what degree of cure must be

effected upon existing units. There is no method available

by which respondent can insure that it will not offend the

eyes of any number of certified observers, even assuming

that there are no defects in their eyesight. No manufac-

turer of pollution control equpment will guarantee results

based upon Ringelmann or opacity standards.’ Respon-

dent does not advocate free and uncontrolled use of the

atmosphere. There are tests which set a volumetric maxi-

mum for a precise method of measuring the amounts of

and actual densities of emissions. They are precise and ob-

jective, not imprecise and subjective as are Ringelmann and

opacity readings.

Nor can it be contended that either visual determina-

tion test is semi-quantitative as to the quantity of con-

taminant being emitted in that, for example, an opacity

reading of 80% indicates a greater quantity of contaminant

11. App. p. 112.

nema

than an opacity reading of 10%. As has been demonstrated,

this would be true only if: (1) the conditions under which

the readings were taken were identical, as otherwise dif-

ferent readings could result from stacks of varying diameter

or the other factors discussed above, given identical amounts

of contaminant from the source per given unit of time; and

(2) the density (in terms of weight) of the actual particles

in the two readings was identical. Only if the densities are

identical can it be said that the actual quantity of contami-

nant being emitted is also identical. It is possible that an

emission permitted under the Act with an opacity reading of

20 per cent contains a greater quantity of contaminant than

a prohibited emission with an opacity of 60 per cent, if the

former is composed of particles which are more than three

times as dense as the latter. Neither opacity nor Ringel-

mann readings consider the latter factor. Both are con-

cerned only with visual, as opposed to actual density, which

actual density is measured in terms of particles of con-

taminant per given time period from a given source.

2. The Act, in Employing Visual Determination

Tests, Has Selected Means Which Have No

Real and Substantial Relation to the Object

Sought to Be Attained and Is Therefore Vio-

lative of the Due Process Clause of the Four-

teenth Amendment to the Constitution of the

United States.

Even if the tests authorized in the Act for determining

the maximum permissible discharges are not in and of

themselves constitutionally infirm, they bear no real and

substantial relation to the object sought to be attained by

the former Act. As this Court announced forty years ago

in Nebbia v. New York, 291 U.S. 515 (1934):

SO recon at

eee)

“And the guaranty of due process, as has often been

held, demands only that the law shall not be unreason-

able, arbitrary or capricious, and that the means

selected shall have a real and substantial relation to

the object sought to be attained.” 291 U.S. at 525.

The object sought to be obtained here is set forth in

Section 2. of the Act which reads and provides in its en-

tirety as follows:

“Section 2—LEGISLATIVE DECLARATION—It is

hereby declared to to be the policy of the State of

Colorado to maintain a reasonable degree of purity of

the air resources of the State, which shall be consistent

with the public health, welfare, and public enjoyment

thereof, the industrial development of the State, the

propagation of protection of human, plant and animal

life, and the protection of physical property and other

resources. To that end it is the purpose of this Act to

require the use of all available practical methods to

reduce, prevent and control air pollution in the State

of Colorado and to maintain a cooperative program

between the State and local units of government. It

is further declared that the prevention, abatement,

and control of air pollution in this State are affected

with the public interest and that the provisions of this

Act are enacted in the exercise of the police powers of

this State for the purpose of protecting the health,

peace, safety and general welfare of the people of this

State.”

It is necessary to examine several definitions contained

in Section 3 of the Act in order to accurately interpret the

legislative declaration contained in Section 2. Section 3,

Definitions, contains, among others, the following defini-

tions: “(5) ‘Air Contaminant’ means a dust, fume, gas,

mist, smoke, vapor (other than water vapor alone), pollen

SEDC TRA IRI TE hy ITO RNP ROE PPE FAD BME WL

58 :

or any combination thereof; (6) ‘Air Pollution’ means the

presence in the atmosphere of one or more air contaminants

in quantities, of characteristics, and of a duration through-

out the State or throughout such areas of the State as shall

be affected thereby, which are injurious to humans, plant,

or animal life or to property, or which unreasonably inter-

fere with the comfortable enjoyment thereof.” (Emphasis

added) :

By the very title of the’Act and by the wording of the

Legislative Declaration, it is clear that the Act is aimed at

preventing, reducing, controlling and abating air pollution

and maintaining a reasonable degree of purity of the air

resources of the State. Implicit in the use of the term “de-

gree” used in terms of air purity is the conclusion that the

Act is dealing with quantums of air contaminants in re-

lationship to the total atmosphere. Otherwise, the use of

the term “degree” would be meaningless. That the Act

does in fact deal with quantums of air contaminants and

that such quantums are in fact incorporated by reference

into the legislative declaration section of the Act is

specifically set forth in the definition of “air pollution.”

This definition talks of “qugsttities, of characteristics, and

of a duration... .” It is exceedingly clear that visual de-

termination methods, even discounting their inaccuracy

given the infinite variations of conditions which alter ob-

servation, are incapable of being accurately translated into

a volumetric measure of contaminant and bear no relation-

ship whatsoever to quantities of air contaminants.

The legislative declaration found in the Act must be

contrasted with expressions of legislative policy in other

acts employing visual determination standards whereupon

in subsequent litigation it was not contended that the means

bore no real and substantive relation to the end. See, for

example, 35 P.S. Section 4002 (Pennsylvania) queted in

ae , SRR: SIAR LM NE ELT IY IT: NI:

PT BAN PINES tat?

Bortz Coal Co. v. Air Pollution Comm., 279 A. 2d 388

- (1971); Sections 24198 and 24199, Health & Safety Code

(California), and People v. Detroit Edison Company, 168

N.W. 2d 320 (1969). The Pennsylvania statute does not

mention air pollution or quantities at all but deals in broad

generalities. Similarly other statutes, which specifically

are for the control of “smoke” or which prohibit the emis-

sion of “dense” smoke, do not mention air pollution or

quantities of air contaminants. That the visual determina-

tion readings permitted in such Acts are appropriate to the

end of eliminating dense smoke Respondent does not

quarrel. Often such statutes have declared smoke or dense

smoke to be a nuisance. However, the former Act in

question here repeatedly uses the term “air pollution”

which by definition deals in quantities of air contaminants.

Respondent submits that the Colorado Legislature, as

stated in its declaration of policy, has specifically and in-

tentionally adopted an act to reduce; prevent, abate, and

control the quantities of air contaminants in the Colorado

air. This is the end sought to be attained by the Act and

only by reducing quantities of air contaminants can the

air be purified. If the Act does not deal with quantities

of air contaminants, then installing stacks with excessive

diameters to reduce visual density and not effective pollu-

tion abatement equipment is the solution for all industries

which find it economically unfeasible to réduce or purify

their emissons. As the means selected in the Act for de-

termining a violation of the end sought to be attained deal

only with apparent visual densities (as opposed to actual

densities}»and not with actual quantities of air contami-

nants, they bear no reasonable and substantial relation to

the declared end. The Act is therefore unconstitutional as

it deprives Respondent of its property contrary to the Due

Process Clause of the 14th Amendment to the Constitution

of the United States.

Ce eow A TI CR

‘ Viewed in another way, the Ringelmann and equivalent

opacity tests constitute meritless, irreversible and irrebut-

table statutory presumptions that emissions registering in

excess of the prescribed standards contain quantities of air

contaminants sufficient to violate the Act and/or are in-

consistent with the public health and welfare of the state

if the Act’s end is broadly construed; and, conversely: that

emissions which do not exceed the prescribed standards do ¢=

not contain prohibited quantities and/or are consistent with

the public health and welfare. As has been demonstrated

this is an irrefutable assumption so arbitrary and unreason-

able as to deprive respondent of its property without due

process of law. The Act precludes the respondent from

ever rebutting the presumption. It provides only the op-

portunity to contest the determination that a violation

exists; that is, whether the emission was in excess of the

standards, and not whether such standard is in fact incon-

sistent with the end of the Act.”

Fe! ein? 6 we

Sat eesti OMS ABs pith Sap

Since the Act in prohibiting emissions which are vio-

lative of prescribed visual determinations standards, pur-

; ports to be concerned with quantities of air contaminants,

it is forbidden by the due process clause to assess a viola-

| tion on the basis of a permanent and irrebutjable presump-

tion that emissions in excess of the prescribed standards

contain an impermissible quantity of air contaminants

when that presumption is often times demonstratively

false in fact and when the state has reasonable alternative

means for making the crucial determination."* Even if

the Act purports to be concerned with the public health

and welfare and not at all with quantities of air contami-

12. - See, e.g. Vlandis v. Kline, . U. S. , 93 S. Ct. 2230

(1973) where a similar, permanent and irrebuttable statutory pre-

sumption, which presumption was unnecessary, rendered the

statute in question unconstitutional.

13. See, e.g. Bell v. Burson, 402 U. S. 535 (1971).

=‘

nants, it is forbidden by the due process clause to assess

a violation on the basis of a permanent and irrebuttable

presumption that emissions not in excess of the prescribed

standards as opposed to emissions in excess of the State's,

are not inconsistent with public health and welfare when

that presumption is not necessarily or universally true in

‘fact when no quantitative inquiry is made and when there

exist reasonable alternative means of making the crucial

test. Standards of due process require that the State al-

low the opportunity to present evidence which shows that

the emission is not inconsistent with the public health and

welfare vis-a-vis emissions which do not violate the pre-

scribed standards. Since the Act precludes rebuttal of the

presumption, it operated to deprive the respondent of its

property without due process of law.

3. Whatever the End Sought to Be Attained by

the Act, a Finding of Liability for Its Viola-

tion Based upon a Visual Determination Test

Is Unreasonable and Therefore Violative of

Due Process.

The United States Court of Appeals, Second Circuit,

in Pearson v. Northeast Airlines, 309 F. 2d 553 (1962)

stated that an unreasonable or unreasoned imposition of

liability was violative of due process. Whatever the pur-

pose of the Act, any emission source is subjected to an un-

reasonable imposition of liability because of the nature of

the visual determination tests which serye as a basis for

imposing the liability. To impose a penalty or issue a

Cease and Desist Order on the basis of visual determina-

tion tests is totally unfair. If the Act is concerned not

with quantities of air contaminants, but with the mere

presence of air contaminants over and above that per-

mitted by the visual determinations standards, then it

must be assumed that emissions in excess of the prescribed

—_=

ee ee ee |

AN ee RE ER Sr, a EN SU RB

levels are not consistent with public health and welfare,

and, to the contrary, emissions not in excess are permitted

as being consistent with the public health and welfare. As

has been demonstrated this is entirely fallacious for sev-

eral reasons:

1) With visual determinations standards measuring’,

only visual density, emissions in excess of the per-

mitted opacity may often have a lesser quantity of

air contaminant than an emission in excess, thus

rendering nugatory the contention that emissions

not in excess are consistent with the public health

and welfare while emissions in excess of the pre-

scribed levels are inconsistent.

2) The visual density of an emission bears no rela-

tionship to the quantity of contaminant contained

in that emission.

Opacity, without reference to quality or quantity, is

meaningless to the improvement of the air for the benefit

of the public health and welfare. Without regard to

quality,"* the question is one of what emissions will be

14. It is puzzling that the quality of the emission is not a

concern to the state. The former Act made no inquiry whatsoever

into the nature and composition of emissions. Obviously, a highly

toxic emission representing an immediate threat to the populace

should be dealt with quickly and severely, but if it is colorless

or does not violate the visual density standards, it is not pro-

hibited, notwithstanding the fact that its threat to the environ-

ment greatly exceeds that of other emissions which may be pro-

hibited.

The emission of all foreign substances could be prohibited,

but as long as some are permitted the standards employed in mak-

ing this determination should rest on reasonableness and not

caprice.

Mr. Taylor, the Department’s Air Pollution specialist, testified

at App. p. 36.

“Q. I think you indicated you made ne analysis of whatever

it was you were seeing coming out from the stacks?

A. No, we haven’t.

Q. That’s been sent to any chemical laboratory to determine

a is in it?

7 o.”

“See Ya eae RR ~ — —

prohibited. A dividing line must be drawn if some emis-

sions are permitted and that line states what emissions

will be permitted as being compatible with economic in-

terests and public health and welfare and what emissions

will be prohibited as being incompatible with public health

and welfare. Opacity measures only the percentage of

light passing through an emission. It makes no reference

to its quality and has no demonstrable relationship to the

quantity of the discharge. The opacity of any emission

of a given quantity of contaminant is dirgctly proportional

to the pressure or compactness of that emission which in

turn is basically a function of stack diameter. It is ludi-

crous to prohibit an emission of a given quantity per given

unit of time when an ever greater quantity per given unit

of time is permitted because its opacity is less than the

prescribed maximum because it issues from a larger stack.

This vividly demonstrates the irrationality of the Act in

terms of protecting the public health and welfare. While

one source that emits in violation of the Act is penalized

because its emission is declared to be inconsistent with

public health and welfare, one whose emissions contain

greater quantitiessof contaminants and are therefore more

damaging to the public is not penalized. Unless all emis-

sions are prohibited, the imposition of liability based upon

a dividing line which has as its end the preservation of the

public health and welfare can only be reasonable if it is

based upon some quantitative or actual density standard

as opposed to a visual standard. The public is harmed by

quantities of air contaminants and not by high visual

densities.

This is not the situation where a speeder, apprehended

while traveling five miles in excess of the posted limit,

pleads his innocence because immediately prior to his ap-

prehension, he was passed by three other automobiles that

Wh piithiia ed eahaad SA bined lett A

Li diag dhl Lec” 6

were traveling twenty miles in excess of the posted limit.

There all automobiles were in violation of the law. The

question was merely one of apprehension, and nonappre-

hension does not excuse a violation. Here, even though

one source can do greater harm to the public health and

welfare by emitting a greater quantity of air contaminant,

it is not in violation of the law as long as the visual density

of that emission is within the prescribed opacity limits. By

merely increasing stack size, a source previously in violation

can emit a greater quantity of contaminant and do greater

harm to the public and yet exculpate itself from further

liability.

When this situation can be averted by stack tests mea-

suring particulate emission, it is even more evident that

the imposition of liability is unreasonable. The means of

alleviating this unreasonable imposition are at hand, are

feasible, are widely used and accepted and therefore show

not only that the imposition of liability on the basis of

opacity tests-is unreasonable but also unnecessary.

VI. CONCLUSION

For the reasons stated above, the judgment of the

Colorado Court of Appeals should be affirmed.

Respectfully submitted,

Georce D. BLackwoop, Jr.

Puitre B. GREEN

Floor Three Columbia Union

Bank Building

900 Walnut Street

Kansas City, Missouri 64106

Donato D. CAWELTI

990 Public Service Company

Building

Denver, Colorado 80202

Attorneys for Respondent

Of Counsel:

LINDE THOMSON VAN DyKE FAIRCHILD

& LANGWORTHY

Floor Three Columbia Union

Bank Building

900 Walnut Street

Kansas City, Missouri 64106

LEE, BrYANS, KELLY & STANSFIELD

990 Public Service Company |

Building

Denver, Colorado 80202

_ a

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