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

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/ U.S. MICHAEL RODAK, J

No. 73-690

Iu the Supreme Gourt of the Anited States

OctToBER TERM, 1973

Arr PoLLUTION VARIANCE BOARD OF THE STATE OF

COLORADO, PETITIONER

Vv.

WESTERN ALFALFA CORPORATION

ON WRIT OF CERTIORARI TO THE COLORADO COURT OF

APPEALS, DIVISION II

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ROBERT H. BORK,

_ Solicitor General,

WALLACE H. JOHNSON,

Assistant Attorney General,

HARRIET S. SHAPIRO,

Assistant to the Solicitor General,

EDMUND B. CLARE,

HENRY J. BOURGUIGNON,

! Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

’ Page

Question. presented __-- - - data tee Saesesegaeease 1

Interest: of the: United States icici we ear eae een 2

Statement ___--_-_---_----------------------- 3

Introduction and summary of argument------4--- 6

Argument:

I. State officials may constitutionally enter

private: premises to conduct spot checks

of compliance with air purity standards

without either a warrant or the owner’s

" consent____-----=--- ieedeeaseeeees Bal

1. The limited entry here did not —

constitute a search or a mai

- within the meaning of the Fourth

-2. Even if this was a search subject

to the Fourth Amendment, it

was reasonable____-__---------- 13

II. The company has no due process right to

notice that a reading is being taken - _-_- 17

Conclusion. =. .~..2~2+-.1~-.....:-..+---.-.-- 20

CITATIONS

Cases: |

Camara v. Municipal Court, 387 U.S. 523___-- ' 8,

10, 12, 13, 15, 16

Davis v. Mississippi, 394 U.S. 721___--.----- 12

Goldberg v. Kelly, 397 U.S. 254__-.---------- 18-19

Greene v. McElroy, 360 U.S. 474_~_---------- 18

Hester v. United States, 265 U.S. 57____------- 13

Katz v. United States, 389 U.S. 347_.--------- 12

(1)

537-735—74—__1

u

Cases—Continued ns

Richardson v. Perales, 402 U.S. 389___..---- 19

See v. City of Seattle, 3887 U.S. 541-......----- 8,

10, 12, 18, 15, 16

Terraciano v. Montanye, C.A. 2, No. 73-2382,

decided March 14, 1974. _.......-..------ 16

United States v. Biswell, 406 U.S. 311_____- 10, 15, 16

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

EL | On ene 16

United States v. Dionisio, 410 U.S. 1_...------ 12

United States v. Mara, 410 U.S. 19. __.-.---_-- 12

Wardius v. Oregon, 412 U.S. 470___....----- 19

Youghiogheny and Ohio Coal Co. v. Morton, 364

¥. Supp. 45......---.-------- 22-2 14,17

Constitution, statutes, and regulation:

United States Constitution:

Fourth Amendment. .- - . -- 1,8, 10, 11, 12, 13,15

Fourteenth Amendment. -—_.......--.-- 1,18

Clean Air Act Amendments of 1970, 84 Stat.

1676, et seg., 42 U.S.C. 1857, et seg_.....--- 2

Section 107(a), 42 U.S.C. 1857c—-2(a) ____ 9

Section 113(a), 42 U.S.C. 1857ce-8(a)_-.. 2,9

Section 113(a) (2), 42 U.S.C. 1857¢-8(a) (2). 2

Section 114(a)(2), 42 U.S.C. 1857

A ob encenktcknnd ences unas 6

Section 116,42 U.S.C. 1857d-1____-- 9

Federal Coal Mine Health and Safety Act of

1969, 83 Stat. 742, et. seg., 30 U.S.C. 801,

et seq.:

Section 108, 30 U.S.C. 813__...-------- 15

Section 103(b), 30 U.S.C. 818(b)__....-- > Be

Section 103(h), 30 U.S.C. 813(h)___._--- 19

Section 104(f), 30 U.S.C. 814(f)_.-_--.- 19

Constitution and statutes—-Continued

Federal Environmental Pesticide Control Act

of 1972, 86 Stat. 975, et seg., 7 U.S.C.

(Supp. IT) 136, et seg.:

Section 9, 7 U.S.C. 136g... 8.

Section 9(a), 7 U.S.C. 186g(a)__..____

Federal Food, Drug, and Cosmetic Act, 52

Stat. 1040, as amended, et seg., 21 U.S.C.

301, et seq.:

Section 704, 21 U.S.C. 374.___.....

Section 704(a), 21 U.S.C. 874(a)________

Federal Hazardous Substances Act, 74 Stat. 372,

as amended, et seg., 15 U.S.C. 1261, et seq.:

Section 11(b), 15 U.S.C. 1270(b)_______.

Federal Metal and Nonmetallic Mine Safety

Act, 80 Stat. 772, et seg., 30 U.S.C. 721,

et seq.:

Section 4, 30 U.S.C. 724._...-....

Federal Water Pollution Control Act Amend-

ments of 1972, 86 Stat. 816, et seg., 38 U.S.C.

(Supp. IT) 125], et seg_..-----_-_-

Section 101, 33 U.S.C. 1251(b)________.

Section 308(a)(4), 33 U.S.C. 1318(a) (4) __

Section 309(a), 33 U.S.C. 1319(a)_______

Section 510, 33 U.S.C. 1870_._......____

National Traffic and Motor Vehicle Safety

Act of 1966, 80 Stat. 718, et seg., as amended,

15 U.S.C. 1381, et seq.:

Section 112(b), 15 U.S.C. 1401(b)______-

Noise Control Act of 1972, 86 Stat. 1234, et

B aod

2,7

6-7

9

seq., 422 U.S.C. (Supp. IT) 4901, et seg. ____ 2,15,17

Section 2(a)(3), 42 U.S.C. 4901(a)(8)____

1V

Constitution and. statutes—Continued

Occupational Saféty and Health Act of 1970,

84 Stat. 1590, et seq., 29 U.S.C. 651, et seq.: rar

* Section 8{a)(1), 29 U.S.C. 657(a)(1).. aebins 2,7

Radiation Control for Health and Safety Act

of F968, 82 Stat. 1178, et seg., 42 U.S.C.

263b, et seq.: .

~ Section 860A, 42 U.S.C. 268i(a) ~~. ----- 2, 20

Cal. Health & Safety Code, § 24246___.-.------- 7-8

Colo. R. S. 66-29-5 (1967 Supp.) ..-.--.--------- 4

Colo. R. S: 66—-29-5(2) (1967 Supp.) -. ---------- 19

Colo. R.S; 66—29-5(2)(e) (1969 Supp.) ---------- 5

Colo. R: S. 66-29-8(2)(d) (1967 Supp.)-.-------- 4

Colo. R.S. 66—29-8(2)(d) (1969 Supp.).--------- 4,10

Colo. R. S: 66—29-15 (1967 Supp.)---.-------.-- 18

Colo. R. S, 66-31-10(2)(d) (1971 Supp.)_-.--- ,10,19

Colo. R. 8. 66-31-19 (1971 Supp.)-------------- «18

Colo. R. S. 66-31-19(1)(b) (1971 Supp.) --------- 10

Dek, CE, FANE TT, Fe oi os cig case. 8

Fla. Stats. Ann. § 408.091_......------- a~esee 8

Ga. Code Ann. § 88-907____-..----- aseeeetees 8

Hawaii Rev. Stats., title 19, § 822-64. __....-.-- 8

La. Rev. Stats. Ann. 40:2204.-.......-----.----- 8

Michigan Stats. § 336.15(i).....-.-------------- 19

NJ. State. Ana. 26:2C-02@ ...........-.....-.-- 8

N.J. Stats. Ann. 26: '2C-9(4) (ans scaedeeeae eaeeee 19

N.Y. Environmental Conservation Law §19-0305_ 8

N.Y. Environmental Conservation Law §19-

CY acs sn een

Penna. Stats. Ann., title %, § 4004___...-_-----.

WD CPR. GOOG sun tine dcencsccsenescsncwsnse

_

wm © ©

Vv

Miscellaneous: —

39 Fed. Reg. 9309_.....----- 13,15

S. Rep. No. 92-414, 92d Cong., Ist Sess._____ 7

Schulze, Richard H., The Economics of Envi-

ronmental Quality Measurement, 23 Journal

of the Air Pollution Control Association

671 (1973) __----- ee 13

—

Gn the Supreme Gourt of the United States

OctToBER TERM, 1973

No. 73-690

Atm POLLUTION VARIANCE BOARD OF THE STATE OF

COLORADO, PETITIONER

v.

WESTERN ALFALFA CORPORATION

ON WRIT OF CERTIORARI TO THE COLORADO COURT OF

APPEALS, DIVISION II

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTION PRESENTED

Whether the issuance of an administrative order

that respondent cease and desist from violating the

state air pollution law violated respondent’s rights

under the Fourth or Fourteenth Amendments because

the order was based on a state air pollution inspector’s

unannounced observation, while standing on respond-

ent’s outdoor premises without a search warrant, of

the discharge from respondent’s smoke stacks.

(1)

2

INTEREST OF THE UNITED STATES

The Clean Air Act Amendments of 1970 impose

upon the United States, through the Environmental

Protection Agency, the responsibility for assuring

that certain air quality standards are’ achieved and

maintained in the United States, 42 U.S.C. 1857. Un-

der the Act, these standards are to be achieved pri-

marily by means of state implementation plans (see

n. 12, infra). The Administrator of the EPA has en-

couraged vigorous and effective state enforcement

of the state implementation plans; and, if any state

fails to enforce its plan, he has the authority to en-

force it. 42 U.S.C. 1857e-8(a) (2). The rationale of

the decision below would impede state efforts to assure

compliance with the federal air standards by limit-

ing the methods used to determine compliance with

those standards."

*More broadly, the reasoning of the Colorado court casts

doubt on procedures for enforcement of other statutes designed

to protect the environment from pollution. £.g., the Federal

Water Pollution Control Act Amendments of 1972, 33 U.S.C.

(Supp. IT) 1251, et seg., and the Noise Control Act of 1972, 42

U.S.C. (Supp. IT) 4901, et seg. It may also cast doubt on the pro-

visions in the Federal Coal Mine Health and Safety Act of 1969

and the Federal Metal and Nonmetallic Mine Safety Act which

grant safety inspectors the right to enter mines subject to

those Acts (30 U.S.C. 813(b), 30 U.S.C. 724), as well as on

numerous other federal statutes which grant limited rights of

inspection to assure compliance with various health and safety

standards. See, e.g., 21 U.S.C. 374 (Federal Food, Drug, and Cos-

metic Act); 7 U.S.C .(Supp. IT) 136g (Federal Environmental

Pesticide Control Act of 1972); 29 U.S.C. 657(a) (1) (Occupa-

tional Safety and Health Act of 1970) ; 42 U.S.C. 263i(a) (Radia-

tion Control for Health and Safety Act of 1968).

3

STATEMENT

The states have promulgated plans to implement

ambient air quality standards. These plans typically

limit the discharges permitted from air pollution

sources in two ways: by specifying limits on the

density of emissions (opacity standards), and by spec-

ifying limits on the concentrations of particulates by

weight per hour or per unit volume of the gases

emitted (concentration/mass standards). The eoncen-

tration/mass standards are not concerned with the

size of the matter emitted; that is, large quantities of

sub-micron size particles give the same result as far

fewer, larger particles, although the sub-micron sized

particles may constitute a greater health hazard.

Opacity standards do discriminate according to the

size of the matter emitted. Moreover, since opacity

standards are monitored simply by observations by

trained observers, while monitoring compliance with

concentration/mass standards requires the installa-

tion of testing devices in the stack of the air pollu-

tion source being tested, compliance with the former

can ‘he more easily checked. Therefore, the use of

opacity standards provides a more economical en-

forcement technique and hence greater assurance

that pollution control equipment will be properly

maintained and utilized.

In the present case, after almost two years of nego-

tiations attempting to bring emission sources at three

Western Alfalfa plants into compliance with emission

standards (App. 23), a field inspector for the Colorado

537-T35--74- ——2

4

Department of Health entered the outdoor premises

of the plants on June 4, 1969, to conduct a Ringel-

mann opacity test for determining the amount of par-

ticulate matter in the smoke plumes.’ His entry was

authorized by state law (Colo. R. S. 66—29-8(2)(d)

(1967 Supp.) ).* The inspector’s readings showed that

the emissions from all but one of the nine stacks at the

three plants were substantially in excess of the levels

permitted by the state law.‘

Based on these opacity readings, the State Depart-

ment of Health issued an order to Western Alfalfa on

June 16, 1969, directing the company to cease and de-

sist from further violation of the state air pollution

control law. Western requested a hearing before the

Air Pollution Variance Board at which it denied that

it was in violation of the state standards. It attempted

to demonstrate its compliance by evidence of opacity

tests made in 1968 under the operating conditions

_~e

*€he Ringelmann test, prescribed by Colorado law, Colo.

R. S. 6029-5 (1967 Supp.), required a specially trained in-

spector to stand in a position where he has an unobstructed

view of the smoke plume, observe the smoke, and rate it according

to the opacity scale of the Ringelmann chart.

*The Colorado law was subsequently substantially revised.

Colo. R. S. 66-29-8(2) (d) (1969 Supp.). The revised statute was

later replaced by Colo. R. S. 66—-31-10(2)(d) (1971 Supp.).

*Colorado law prohibited smoke emissions which, for more

than three minutes, exceed 40 percent opacity, ¢.e., number 2 on

the Ringelmann chart, Colo. R. S. 66-29-5 (1967 Supp.). The

inspector’s readings showed 90 percent opacity at two dryer

stacks, and 85 percent opacity at the third. Opacity at two

grinder stacks was 70 percent, and 50 percent at the third. Two

pelletizing stack emissions showed 50 percent opacity; the third

showed 40 percent opacity (App. 24-25).

r

Ne a oe ee Se i a ee te ee. a ee

5

which prevailed on June 4, 1969, and a test of the

concentration of solid particulate matter in the smoke

plumes made after the inspector’s June 1969 tests

(App. 56, 75). The Board concluded that the particu-

late matter concentration tests did not comply with

the statute then in effect,’ and found on January 31,

1970, that Western Alfalfa’s ‘‘operations are in viola-

tion of the [state] emission standards.” It denied a

variance from those standards (Pet. App. E4).

On Western Alfalfa’s petition for review, the Colo-

rado District Court for Weld County set aside the

Board’s decision, concluding that the Board’s hearing

denied Western Alfalfa due process, in that the obser-

vations of the state expert were made in secret and

the company was not aware they had been taken until

the cease and desist order was issued some twelve days

later (Pet. App. F'4).

The Colorado Court of Appeals, Division II, af-

firmed the judgment of the district court (Pet. App.

A5). The court of appeals held that, because the in-

spector had entered the premises of Western Alfalfa

without the knowledge or consent of anyone from the

corporation, “the hearing afforded Western [by the

Variance Board] lacked the fundamental elements of

due process of law, since the secret nature of the in-

vestigation foreclosed Western from putting on any

* The Colorado statute at that time permitted the use of alter-

native tests to demonstrate compliance with air purity standards

if the responsible state agency approved them, and found there

was a reasonable correlation between opacity and the concen-

tration of particulates in the emissions from the particular

source being tested. Colo. R. S. 66-29-5(2)(e) (1969 Supp.).

6

rebuttal evidence” (Pet. App. A4)..The court also

‘concluded that “the act of conducting tests on. the

‘premises of Western without either a warrant or the

‘consent of anyone from Western, constituted an un- |

reasonable search” (tbtd.).

After the Colorado Supreme Court denied the

Board’s petition for a writ of certiorari (Pet. App.

B2), the Board’s petition for certiorari in this Court

was granted.

INTRODUCTION AND SUMMARY OF ARGUMENT

Section 114(a)(2) of the Clean Air Act Amend-

ments of 1970, 42 U.S.C. 1857c-9(a)(2), gives the

federal Administrator of the Environmental Protec-

tion Agency, or his authorized representative, the

right to enter premises where there is any emission

source upon presentation of his credentials, in order

to inspect monitoring equipment or sample emissions.‘

Section 308(a)(4)(B) of the Federal Water Pollu-

tion Control Act Amendments of 1972, 86 Stat. 816, 858,

* Section 114(a) (2) provides:

the Administrator or his authorized representative,

upon presentative of his credentials—

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

through any premises in which an emission source

is located or in which any records required to be

maintained under paragraph (1) of this section are

located, and

(B) may at reasonable times have access to and

copy any records, inspect any monitoring equipment

or method required under paragraph (1), and sam-

ple any emissions which the owner or operator of

such source is required to sample under paragraph

(1). |

RAE NRE IR Da tt ONE Ea at

eS net

MRL LALLA CBB ES,

7

33 U.S.C. (Supp. II) 1318(a) (4) (B), contains a vir-

tually identical provision.’ The legislative history of the

Clean Air Act sheds little light-on the entry provisions

in that Act, but the Senate report on the Water Act con-

tains the following comment:

As under the Clean Air Act, the Committee

expects the authority “to enter will be used

judiciously and upon any challenge to entry the

Committee expects the Administrator to obtain

the necessary warrant. [S. Rep. No. 92-414, 92d

Cong., Ist Sess., p. 63.*]

Federal inspectors must, therefore, make their

entry onto private property known and obtain a war-

rant if their entry is opposed.’

Several state statutes, however, authorize state of-

ficials to enter private premises without a warrant to

conduct tests to ascertain whether air purity stand-

ards are being violated. For example, the California

statute provides that any person who “in any way

denies, obstructs, or hampers such entrance” is guilty

of a misdemeaner (Cal. Ann. Health & Safety Code

‘Similar provisions are contained in the Federal Coal Mine

Health and Safety Act of 1969 (30 U.S.C. 813(b) ), and the Fed-

eral Metal and Nonmetallic Mine Safety Act (30 U.S.C. 724), as

well as numerous other federal statutes, é.g., 15 U.S.C. 1270(b)

(Federal Hazardous Substances Act); 15 U.S.C. 1401(b) (Na-

tional Traffic and Motor Vehicle Safety Act of 1966) ; 29 U.S.C.

657(a) (1) (Occupational Safety and Health Act of 1970).

'* There is no suggestion in the legislative history of either

Act that Congress intended to impose similar restrictions on

the states.

* The federal statutes, in our view, do give a federal inspector

the right to enter after identifying himself in the absence of

an express objection.

AER AR PLFA EO WORT ee

8

§ 24246). Other states have statutes which are in

terms similar to the federal statute." The amicus

curiae brief in support of the petitioner filed on be-

half of thirty-four states indicates (pp. 4-5) that

many of them do not believe their statutes require

either consent to entry or a warrant.

The decision of the Colorado court of appeals, by

holding that the unconsented entry here constituted

an unreasonable search of the sort this Court held

violative of the Fourth Amendment in Camara v.

Municipal Court, 387 U.S. 523, and See v. City of

Seattle, 387 U.S. 541, thus casts doubt on the constitu-

tionality of these state statutes as so interpreted, and

of inspections conducted under them where neither a

warrant nor express consent has been obtained. Its ra-

tionale, therefore, would seriously impede the efficient

~ 1° The Florida statute (Fla. Stats. Ann. § 403.091) provides that

no person “shall obstruct, hamper or interfere with any such in-

spection”; Georgia law requires that the “owner, managing agent ~

or occupant of any such property shall permit such entry” (Ga.

Code Ann. § 88-907).

State statutes do not generally require the inspector to

present his credentials, as does the federal statute. See, e.g.,

Del. Code, title 7, § 6203 (1970 Supp.) ; Hawaii Rev. Stats., title

19, § 322-64; La. Rev. Stat. Ann. 40 :2204; N.J. Stats. Ann. 26:

2C-9; N.Y. Environmental Conservation Law § 19-0305; Penna.

Stats. Ann., title 35, $4004. Thus, although the failure to ob-

ject when the inspector presents his credentials should con-

stitute sufficient consent to permit a federal inspection even

under the Colorado court of appeals’ analysis, unconsented

entry of state inspectors into open areas pursuant to state laws

not requiring them to identify themselves might not be per-

missible under that analysis.

9

enforcement of air pollution control statutes by the

states.”

Thus, the rationale of the decision below may have

a significant adverse effect on the enforcement of

national air quality standards, even though the Colo-

rado law under which the opacity readings at the

The states have primary responsibility to assure the main-

tenance of air quality standards. Section 107(a) of the Clean

Air Act provides (42 U.S.C. 1857¢e-2(a) ):

Each State shall have the primary responsibility for

assuring air quality within the entire geographic area

comprising such State by submitting an implementation

plan for such State which will specify the manner in

which national primary and secondary ambient air qual-

ity standards will be achieved and maintained within

each air quality control region in such State.

Section 116 of the Clean Air Act, 42 U.S.C. 1857d-1, further

provides:

Except as otherwise provided in sections 209, 211

(c) (4), and 233 (preempting certain State regulation

of moving sources) nothing in this Act shall preclude or

deny the right of an State or politica] subdivision

thereof to in ae or oy Ag (1) any standard or limita-

tion respecting emissions of air pollutants or (2) ‘any

requirement respecting control or abatement of air pol-

lution; except that if an emission standard or limitation

is in effect under an applicable implementation plan or

under section 111 or 112, such State or political subdivi-

sion may not adopt or enforce any emission standard or

limitation which is less stringent than the standard or

limitation under such plan or section.

The Administrator’s enforcement powers come into play only

upon failure of the state to enforce its implementation plan.

Section 113(a), 42 U.S.C. 1857c-8(a). Similarly, the states have

primary responsibility to reduce water and noise pollution, un-

der the Federal Water Pollution Control Act Amendments of

1972, 86 Stat. 816, 859, 893, 33'U.S.C. 1251(b), 1319(a), 1370, and

the Noise Control Act of 1972, 86 Stat. 1234, 42 U.S.C. 4901(a) (3).

10

Western Alfalfa plants were made was amended prior

to the Air Pollution Variance Board hearing in this

case, and subsequently repealed." The new Colorado

statute requires that the inspector obtain a warrant

if the “entry or inspection is denied or not consented

to, and no emergency exists” Colo. R. S. 66-31-

10(2)(d) (1971 Supp.).

The limited entry here was not a search or seizure

subject to the Fourth Amendment, since it did not

invade any substantial privacy interest of the com-

pany. In any event, it was a reasonable means of

enforcing the state’s interest in clear air. Unlike the

searches in Camara and See, there was here no at-

tempt to enter the company’s buildings, and, as in

United States v. Biswell, 406 U.S. 311, the conduct

regulated could be rapidly altered to avoid discovery

of non-compliance while a warrant was being sought

after a refusal of permission to enter.

There is no due process right to notice that obser-

vations are about to be made by a law enforcement

officer, or to prompt notice that they have been made.

Respondent was informed of the charges against him,

cross-examined the inspector, and presented evidence

* Colo. R. S. 66-29-8(2) (da) (1969 Supp.). The repeal of the

statute under which the cease and desist order issued does not

render this case moot, since the current statute provides that “any

person who shall violate any final cease and desist order * * *

issued either pursuant to article 29 of chapter 66 prior to adoption

of this article or pursuant to this article shall be subject to a civil

penalty * * *°, Colo. R. S. 66-31-19(1)(b) (1971 Supp.).

ll

concerning his compliance with state air quality

standards, which was the issue before the Board.

No more was required. This Court has never suggested

that there is a constitutional right to prompt notifica-

tion that a law enforcement officer believes he has ob-

served illegal conduct, much less a right of observation

while the official investigates the legality of one’s

conduct. Although, on the facts of this case, we be-

lieve it would have been appropriate for the state

inspector to notify respondent promptly when he com-

pleted his test, such notice is not required, by either

the Constitution or the state statute.

I. STATE OFFICIALS MAY CONSTITUTIONALLY ENTER PRIVATE

PREMISES TO CONDUCT SPOT CHECKS OF COMPLIANCE

WITH AIR PURITY STANDARDS WITHOUT EITHER A WAR-

RANT OR THE’OWNER’S CONSENT

1. The limited entry here did not constitute a search

or a setzure within the meaning of the Fourth

Amendment.

The court below incorrectly held that the inspector’s

act of observing and evaluating the opacity of the

emissions from Western Alfalfa’s stacks while stand-

ing on Western Alfalfa’s outdoor premises constituted

a search subject to the Fourth Amendment. The obser-

vation and visual measurement of the smoke plumes

involved no seizure of anything and did not in them-

selves impinge on any interest in privacy protected

by the Fourth Amendinent, since “[w]hat a person

knowingly exposes to the public, even in his own home or

12

office, is not a subject of Fourth Amendment protec-

tion.” Katz v. United States, 389 U.S. 347, 351. More-

over, in United States v. Dionisio, 410 U.S. 1, and

United States v. Mara, 410 U.S. 19, this Court held

that the circumstances in which the taking of hand-

writing exemplars, fingerprint samples, and voice-

prints may be compelled are not limited by the Fourth

Amendment because these acts involve “none of the

probing into an individual’s private life and thoughts

that marks an interrogation or search.’’ Dionisio,

supra, 410 U.S. at 15, quoting Davis v. Mississippi, —

394 U.S. 721, 727. Cf. Cardwell v. Lewis, No. 72-1603,

argued March 18, 1974. The observation of smoke

plumes is, @ fortiori, not a search.

Nor, in our view, was the state’s conduct here in-

consistent with this Court’s determination that the ad-

ministrative agency inspections involved in Camara v.

Municipal Court, 387 U.S. 523, and See v. City of

Seattle, 387 U.S. 541, were searches within the mean-

ing of the Fourth Amendment. The health inspection

of a private dwelling at issue in Camara, and the right

to enter and conduct a fire inspection in a locked com-

mercial warehouse asserted in See, involved far great-

er intrusions on privacy than an observation of a

smoke plume after crossing a plant property line.

Nothing in this record indicates that the inspector’s

entry was in any way impeded or that the public was

in any way excluded from the area of the plant’s out-

door premises which he entered. Indeed, his crossing

of the property line was in a sense fortuitous, since it

occurred only to enable him to observe the plumes from

13

the proper vantage point -for a Ringelmann evalua-

tion of them (see n. 15, infra). Since “the special pro-

tection accorded by the Fourth Amendment to the

people in their ‘persons, houses, papers, and effects,’ is

not extended to the open fields” (Hester v. United

States, 265 U.S. 57, 59), neither Camara nor See indi-

cates that the inspection here was subject to the

Fourth Amendment.

2. Even if this was a search subject to the Fourth

Amendment, it was reasonable.

Unannounced, random spot checks of the opacity of

smoke stack emissions are necessary to assure that

state and federal air quality standards are maintained.

Stack tests measuring particulate concentrations are

expensive and time consuming to administer." If such

tests were the only means available for assuring com-

phance with applicablé standards, only a limited num-

ber of sources could be tested. In addition, stack tests

are inadequate to assure that emission control systems

are properly maintained and constantly utilized, since

emissions can easily be reduced if the operator knows

a test is being conducted.

In contrast, the Ringelmann test requires only a

trained observer with an appropriate view of the

* EPA studies indicate that such tests may cost as much

as $10,000 per test, and require approximately 300 man hours

of technically skilled effort. 39 Fed. Reg. 9309; see Richard H.

Schulze, Zhe Feonomics of Environmental Quality Measure-

ment, 23 Journal of the Air Pollution Control Association 671

(1973).

14

emissions for approximately half an hour." Although

this view may require that he enter company premises,

it does not require any éntry into buildings, or placing

of equipment in company stacks." As both courts

below noted, the Ringelmann test has repeatedly been

held to be an acceptable method for determining com-

plianee with air quality standards (Pet. App. A2,

F2-F3). |

It is thus reasonable for a state to conclude that

effective enforcement of air quality standards requires

that inspectors be authorized to conduct unannounced

inspections, even when entry onto the premises occu-

pied by the emission source is necessary. Since the

testing at issue here, the taking of opacity readings,

does not involve entry into any building, there is at

most only a minimal invasion of any privacy interest,

which is substantially outweighed by the need to pro-

tect the public health by monitoring the quality of the

air.’ This is particularly true since the purpose of the

“The EPA regulation for conducting an opacity test

requires the qualified observer to stand at a distance equivalent

to approximately two stack heights, but not more than a

quarter of a mile from the base of the stack with the sun to

his back, with a vantage point perpendicular to the plume.

He must take at least 25 readings, recording the necessary data

at 15 to 30 second intervals, 40 C.F.R. 60.85, Method 9.

*® Moreover, although it may be necessary for an inspector

to enter company premises in order to conduct the test, he

can ascertain from observation outside the premises that the

smoke plume is dense enough to make a test appropriate. Thus,

he need enter private premises to conduct the test only when

he has a reasonable basis to believe that a violation of the

emission standards is occurring.

* In Youghiogheny & Ohio Coal Co. v. Morton, 364 F. Supp.

45 (S.D. Ohio), a three-judge court held the warrantless inspec-

15

test may be frustrated by even brief notice that a test

is tobe taken, such as that inherent in the obtaining of

consent to enter or presentation of a warrant. Visible

emissions can be greatly reduced within minutes by

bringing any existing control systems into operation,

or by spraying water on dust, shutting down boilers,

or by similar means. See 39 Fed. Reg. 9309."*

This case thus involves considerations similar to

those held controlling in United States v. Biswell, 406

U.S. 311, with respect to inspections to enforce gun

controls. The Court there explained the distinction be-

tween inspections of this type and those involved in

Camara and See as follows (406 U.S. at 316):

It is also apparent that if the law is to be

properly enforced and inspection made effective,

inspections without warrant must be deemed

reasonable official conduct under the Fourth

Amendment. In See v. City of Seattle, 387 U.S.

541 (1967), the mission of the inspection system

was to discover and correct violations of the

building code, conditions that were relatively

difficult to conceal or to correct in a short time.

tion of a coal mine pursuant to 30 U.S.C. 813 to be a reasonable

search which did not violate the Fourth Amendment. It bal-

anced the owner’s privacy interests against the state’s interest in

health and safety which required frequent unannounced inspec-

tions, and concluded that the state could authorize warrantless

searches.

** A notice requirement would also seriously impede enforce-

ment of noise emission standards under both the Noise Control

Act of 1972, 86 Stat. 1234, et seg., 42 U.S.C. (Supp. IT) 4901, ez

seg., and state and local noise abatement programs. Even more

than air polution, noise is transitory, and noise emissions generally

can be terminated or reduced within a few seconds.

16

Periodic inspection sufficed, and inspection war-

rants could be required and privacy given a

measure of protection with little if any threat to

the effectiveness of the inspection system there

at issue. We expressly refrained in that case

from questioning a warrantless regulatory

search such as that authorized by § 923 of the

Gun Control Act. Here, if inspection is to be

effective and serve as a credible deterrent, unan-

nounced, even frequent, inspections are essen-

tial. In this context, the prerequisite of a war-

rant could easily frustrate inspection; and if

the necessary flexibility as to time, scope, and

frequency is to be preserved, the protections

afforded by a warrant would be negligible.”

Accordingly, we believe that in the circumstances

here the states may reasonably conclude that un-

announced warrantless inspections are necessary, and

that if they do so conclude, the consent of those in-

spected is not a constitutional requirement. A dif-

ferent question might be presented if it appeared that

the inspector had entered the company’s building

without identifying himself and obtaining at least

tacit consent to the inspection, or even that he had en-

tered company land from which the public is ex-

cluded. In such cases, there might be grounds for con-

tending that there had been a substantial invasion of

privacy which would present a more difficult problem

in balancing the needs of the state against the privacy

2 Food and drug inspections pursuant to 21 U.S.C. 374 were

held to be analogous to the Biswell, rather than Camara-See

inspections in United States v. Del Campo Baking Mfg. Co.,

345 F. Supp. 1371 (D. Del.). See, also, Terraciano v. Montanye,

C. A. 2, No. 73-2382, decided March 14, 1974.

REFERS: See:

[SRS Cro ae

17

interests of the company to determine whether the in-

spector’s conduct was reasonable. Cf. Youghtogheny

d: Ohio Coal Co. v. Morton, 364 F. Supp. 45 (S.D.

Ohio).” But here, as where an inspector enters a rail-

road right-of-way to determine whether standards

established under the Noise Control Act of 1972, 42

U.S.C. (Supp. IT) 4901, et seq., are being violated, the

land-owner’s privacy interests are minimal, if they

exist at all, and the state’s interest in conducting un-

announced spot checks is substantial.

II. THE COMPANY HAS NO DUE PROCESS RIGHT TO NOTICE

THAT A READING IS BEING TAKEN

The Colorado court of appeals held, without citation

of authority, that “it is constitutionally mandatory in

this type of case that the party accused be aware of

the taking of test and measurements on its premises

at the time they are made” (Pet. App. A5). It based

this holding on the belief that “the secret nature of

the investigation foreclosed Western from putting on

any rebuttal evidence * * * since the Board made it

very clear that the only evidence which was probative

of whether Western was in violation of the Act was

evidence which would rebut the evidence of the alleged

violation of June 4, 1969’? (Pet. App. A4-A5).

This reasoning overlooks the fact that the issue be-

fore the Board was whether Western was currently in

violation of the Act, and that it received from West-

"Indeed, if the test involves the placing of equipment in

the company stacks, as it does for particulate concentration

testing, the respective interests involved may indicate that a

warrant requirement is appropriate.

18 “

ern the‘analysis of the emissions from its thrée plants

made after the eease and desist order was issued (App:

82). This analysis was rejected, not because it did not

refer to emissions on June 4,” but because the test

utilized did not comply with the Act (Pet. App. E3).

Thus, the Board was apparently willing to consider

tests performed after the state inspector’s readings,

but the ones presented by respondent were simply in-

adequate. Therefore, the Board refused to-modify the

Health Department’s order directing respondent to

desist from further violations of the Air Pollution

Control Act (App. 1-3). If, in fact, respondent was

currently in compliance with the Act, as he contended

(App. 59, 75-77), he could continue to operate his

plants as he had been doing.”

Moreover, the state observer who made the Ringel-

mann readings testified at the hearing, and was exten-

sively cross-examined by respondent (App. 20-39).”

Respondent was, therefore, denied no right of con-

frontation protected by the Fourteenth Amendment.

Greene v. McElroy, 360 U.S. 474, 496; Goldberg v:.

** Nor was this evidence rejected because the Department of

Health had not been notified that the test was being conducted

(Pet. App. F3).

"Under Colo. R. S. 66-29-15 (1967 Supp.) (Pet. App. D

25), respondent would be guilty of a misdemeanor if it violated

the statutory emission standards after the cease and desist

order became final. Cf. Colo. R. S. 66-31-19 (1971 Supp.), assess-

ing a substantial civil penalty for violation of a cease and desist

order, and providing a lesser penalty for failure to comply with

air purity standards in the absence of a cease and desist order.

**In addition, respondent introduced three photographs of

the smoke plume taken by the state inspector when he made the

readings (App. 31-32).

1g

Kelly; 397 U.S. 254, ae on v. aad 402

U.S. 889,410." 005 o> ai 3h

The court of appeals stated. that it is ecmstitutions

ally necessary that respondent be aware that the read-

ings are being taken “at the time they are made’”’

(Pet.-App: A5). ‘Respondent. ‘disclaims, however, any

contention that it was entitled to advance warning of

the tests, and urges only that it should have been

notified immediately after the test is taken (Brief for

Respondent.in Opposition to petition for writ of cer-

tiorari, pp. 9, 12, 14). For the-reasons stated, however,

we do not believe such notification is constitutionally

required. State law might, of course, reasonably re-

quire that the inspector give prompt notice that a test

has been conducted.’ 95 » But whether such a requirement

* The Aiechaige of air contaminant of the opacity found by

the inspector was a violation of Colo. R. S. 66-29-5(2) (1967

Supp.). This Court has never suggested that due process _re-

quires concurrent notice. to. a person whose illegal conduct is

being investigated, or even that such notice must be given

soon after the investigation is completed. Rather, it has recog-

nized that even in criminal trials, the defendant has no such

right. See Wardius v. Oregon, 412 U.S. 470, 475-476 n. 9.

25 Several states do require that if samples of contaminated

air are taken for analysis, a copy of the analytical report shall

be furnished promptly to the person responsible for the con-

tamination. (Colo. R. S. 66-31-10(2) (d) (1971 Supp.) ; Michigan

Stats. § 336.15(i); N. J. Stats. Ann. § 26:2C-9(d); N. Y. En-

vironmental Conservation Law § 19-0305(2) (a).

The Federal Coal Mine Health and Safety Act of 1969 gives

“the authorized representative of the miners at the mine at the

time of [the] inspection” the right to accompany the inspector (30

U.S.C. 813(h) ), and requires the prompt issuance to the mine op-

erator of any notices of violations resulting from such inspection

(30 U.S.C. 814(f) ). Other federal statutes require the presenta-

tion before inspection of written notice to the owner, operator, or

should be included is a matter for legislative, rather

than judical, determination, and the Colorado law

eontains no such requirement.

CONCLUSION

The judgment of the Colorado court of appeals

should be reversed.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Wauace H. JoHNson,

Assistant Attorney General.

Harriet S. SHAPIRO,

Assistant to the Solicitor General.

EpmMunp B. Cuark,

Henry J. BourauiGnon,

Attorneys.

Aprit 1974.

agent in charge of the premises to be inspected, e.g., 42 U.S.C.

263i(a) (Radiation Control for Health & Safety Act of 1968) ;

7 U.S.C. (Supp. II) 136g(a)) (Federal Environmental Pesticide

Control Act of 1972); 21 U.S.C. 374(a) (Federal Food, Drug,

and Cosmetic Act).

U.S. GOVERNMENT PRINTING OFFICE; 1974