AIR POLLUTION VARIANCE BOARD OF COLORADO v. WESTERN ALFALFA CORP.
No. 73-690.
Argued April 25, 1974
Decided May 20, 1974
Douglas, J., delivered the opinion for a:unanimous Court.
William Tucker, Assistant Attorney General of Colorado,, argued the cause for petitioner. With him- on the brief were John P. Moore, Attorney General, John E: Bush, Deputy Attoméy General, and John Brown, Special.. Assistant Attorney General.
Donald D, Cawelti argued the cause for respondent. With him on the brief was George D. Blackwood,'Jr.
Edmund W. Kitch argued the cause for the United .States as amicus curiae urging reversal. Qn the- brief were. Solicitor General Bork, Assistant Attorney General Johnson, Harriet S. Shapiro, and Edmund B. Clark
Briefs of a7ff,ici curiae urging reversal were filed by William J. Brown, Attorney General, and Richard P. Fahey and John Eufinger, Assistant Attorneys General, for the the State of Ohio; and by the Attorneys General and other officials for'34 States as follows: Evette J.- Younger, Attorney General of California, Robert H. O'Brien, Assistant Attorney General, and Nicholas C. Yost, C. Foster Knight, and Daniel J. Taaffe, Deputy Attorneys General; Gary K. Nelson, Attorney General of Arizona; Jim Guy Tucker, Attorney General of Arkansas; Robert K. Killian, Attorney General of Connecticut; Arthur K. Bolton, Attorney General of Georgia; George Pai, Attorney- General of Hawaii; W. Anthony Park, Attorney General of Idaho; William' J. Scott, Attorney General of Illinois; Richard C. Turner, Attorney General of Iowa, and Clifford Peterson, Assistant . Attoijiey General; Vem Miller, Attorney General'of Kansas; Ed W. Hancock, Attorney General of Kentucky; William J. Guste, Jr., ■Attorney General of Louisiana; Jon A. Lund, Attorney General of Maine; Francis B. Burch, Attorney General of Maryland, and Martin A. Ferris III, Special-Assistant Attorney General; Robert H. Quinn, Attorney General of Massachusetts.'; Frank J. Kelley, Attorney General of Michigan; Warren R. Spannaus, Attorney General of Minnesota;- Clarence A. H. Meyer, Attorney General of Nebraska; Robert List, Attorney General of Nevada; Warren B. Rudman, Attorney General of New Hampshire, and Donald W. Stever, Assistant Attorney General; William F. Hyland, Attorney General of New Jersey; David L. Norvell, Attorney General of New Mexico; Louis J. Lefkowitz, Attorney General of New York;- Robert Morgan, Attorney General of North Carolina; AUen I.-Olson, Attorney General of North Dakota; Larry Derryberry, Attorney General of Oklahoma.; Lee Johnson,. Attorney Genefal of Oregon; Richard J. Israel, .Attorney General of Rhode Island; Daniel R. McLeod, Attorney General of South Carolina; Ker'mit A. Sande, Attorney. General of South Dakota, David M. .Pack, Attorney General of Tennessee; John L. Hill,. Attorney General.of Texas; Chauncey H. Browning, Jr., Attorney General of West Virginia; Robert W. Warren, Attorney General of Wisconsin, and Th&ódove L. Priebe-, Assistant Attorney General. ‘
Mr. Justice Douglas
delivered the opinion of the Court.
An inspector of a division of the. Colorado Department of Health entered the outdoor premises of respondent without its knowledge or consent. It was daylight and the inspector entered the yard to make a Ringelmann test of plumes of smoke being emitted from' respondent’s chimneys. Since that time Colorado has. adopted a requirement for a seareh warrant for. violations of air quality standards. At the time of the instant inspection the state law required nó warrant and none was sought. Indeed, the. inspector entered no part of respondent’s plant to make the inspection.
A federal Act under the administration of the 'Environmental Protection Agency (EPA) sets certain air quality . standards, 81 Stat. 485, 42 U. S. C. § 1857 et seg. The States have the primary responsibility to assure the maintenance of air. quality standards, 42 U. S. C. § 1857c-2 (a). Yet if the EPA has approved'or promulgated “an applicable implementation” plan, a State may not adopt Or enforce a “less stringent” one, 42 U. S. C. §4857d-1. - There is no conflict between a federal standard and state. action, the sole question presented being whether Colorado has violated federal constitutional procedures in making the inspection in the manner described..
Respondent requested a hearing before Colorado’s Air Pollution Variance Board. The Board held a hearing and found that respondent’s, emissions were in violation of the state Act. While the test challenged here was made on June 4, 1969, the Board after noting that Colorado’s Health Department had been in conference with respondent “in regard to its air pollution violations since September, 1967,” after approving the readings made by the field inspector on the day in question, and after holding that tests submitted in rebuttal by respondent were not acceptable, denied a variance and entered a ceasé-and-desist order. Respondent sought review in the District Court for Weld County which set aside the Board’s decision. The Colorado Court of Appeals affirmed, 610 P. 2d 907; and the Supreme Court denied certiorari.
The petition for certiorari which we granted, 414 U. S. 1166, raised three questions, presenting in differing postures questions under the Fourth Amendment, made applicable to the . States by the Fourteenth. Mapp v. Ohio, 367 U. S. 643.
The main, thrust of the opinion of the Court of Appeals is directed at the Fourth Amendment problem. It held that, under Camara v. Municipal Court, 387 U. S. 523, and See v. City of Seattle, 387 U. S. 541, the act of conducting the tests on the premises of respondent without either a warrant or .the cóñsent’of anyone from respondent constituted an unreasonable search within the meaning of the Fourth Amendment. We adhere to Camara and See btit we think they are not applicable here. The field inspector' did not enter the plant or offices.- - He was not inspecting stacks, boilers; scrubbers, flues, grates, or furnaces; nor was his inspection related to respondent’s files or papers. He had sighted what anyone in the city who was near the plant could see in the sky — plumes of smoke. The Court in Hester v. United States, 265 U. S. 57, 59, speaking through Mr. Justice Holmes, refused to extend the Fourth Amendment to sights seen in “the . open fields.” The field inspector was on respondent’s property but we are not advised that he was on premises from which the public was excluded. Under the Noise Control Act of 1972, 86 Stat. 1234, 42 U. S. C. § 4901 et.seq. (1970 ed., Supp. II), an inspector may enter a railroad right-of-way to determine whether noise standards are being violated. The .invasion of privacy in either that case or the present one, if it can be said to exist, is abstract and theoretical. The EPA regm lation for conducting an opacity test requires the inspector to stand at a distance equivalent to approximately two stack heights away but not more than & quarter of a mile from the base of the stack with the sun to his back from a vantage point perpendicular to the plume; and he must take at least 25 readings, recording the data at 15-to 30-second intervals. Depending upon the layout of the-plant, the inspector may operate within or without the premises but in either case he is well within the “open fields” exception to-the Fourth Amendment'approved.in Hester.
The Court of Appeals went on to say that since respondent was not aware that the inspector had been on the premises until the cease-and-desist notice, the hearing it received “lacked the fundamental elements of due process of law-, since.the secret nature of the investigation foreclosed Western from putting on any rebuttal .evidence.”
Whether the Court referred to Colorado “due process” or ■ Fourteenth Amendmept “due process” is not clear. If it is the former, the question is a matter of state law beyond our purview. Since we are unsure of the grounds of that ruling we intimate no opinion on that issue. But on our remand we leave open that.and any other, questions that may be lurking' in the case.
Reversed and remanded.
This test is prescribed by Colo. Rev. Stat. Ann. § 66-29-5 (Supp. 1967). It requires a'trained inspector to stand _iií 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 person using the- chart matches the color and density of the sinoke • plume with • the numbered example on the chart. The Ringelmann test is generally sanctioned for use in measuring air pollution. See cases collected in Portland v. Fry Roofing Co., 3 Ore. App. 352, 355-358, 472 P. 2d 826, 827-829.
Colo. Rev. Stat. Ann. § 66-29-8 (2) (d) (Supp. 1969).
The Air Pollution Variance Board, after the Division of Administration; Colorado Department of Health, had issued a cease- .and-desist order; received a request from respondent for a hearing which was granted and held September 11,1969.
EPA studies indicate that tests of stacks are expensive and may . require 300 man-hours of skilled work. 39 Fed. Reg. 9309. And see Schulze; The Economics of Environmental Quality Measurement, 23 J. Air Poll Control Assn. 671. (1973); 40 CFR § 60.85, Method 9.
510 P. 2d, at 909.
In the District Court’s opinion it is said that one challenge to the hearing before the Variance Board "was “whether or not due • process of law ánd equal protection of -the law contrary to the 14th Amendment of the Constitution of the United States and Section 25, Article 2 of the Constitution of the State of Colorado was denied” by the Board. App. 136.
See California v. Krivda, 409 U. S. 33; Department of Mental Hygiene v. Kirchner, 380 U. S. 194; Minnesota v. National Tea Co., 309 U. S. 551,
U.S. Court of Customs and Patent Appeals U.S. Court of International Trade U.S. Court of Claims, Court of Federal Claims U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces U.S. Court of Military Review U.S. Court of Veterans Appeals U.S. Customs Court U.S. Court of Appeals, Federal Circuit U.S. Tax Court Temporary Emergency U.S. Court of Appeals U.S. Court for China U.S. Consular Courts U.S. Commerce Court Territorial Supreme Court Territorial Appellate Court Territorial Trial Court Emergency Court of Appeals Supreme Court of the District of Columbia Bankruptcy Court U.S. Court of Appeals, First Circuit U.S. Court of Appeals, Second Circuit U.S. Court of Appeals, Third Circuit U.S. Court of Appeals, Fourth Circuit U.S. Court of Appeals, Fifth Circuit U.S. Court of Appeals, Sixth Circuit U.S. Court of Appeals, Seventh Circuit U.S. Court of Appeals, Eighth Circuit U.S. Court of Appeals, Ninth Circuit U.S. Court of Appeals, Tenth Circuit U.S. Court of Appeals, Eleventh Circuit U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) Alabama Middle U.S. District Court Alabama Northern U.S. District Court Alabama Southern U.S. District Court Alaska U.S. District Court Arizona U.S. District Court Arkansas Eastern U.S. District Court Arkansas Western U.S. District Court California Central U.S. District Court California Eastern U.S. District Court California Northern U.S. District Court California Southern U.S. District Court Colorado U.S. District Court Connecticut U.S. District Court Delaware U.S. District Court District Of Columbia U.S. District Court Florida Middle U.S. District Court Florida Northern U.S. District Court Florida Southern U.S. District Court Georgia Middle U.S. District Court Georgia Northern U.S. District Court Georgia Southern U.S. District Court Guam U.S. District Court Hawaii U.S. District Court Idaho U.S. District Court Illinois Central U.S. District Court Illinois Northern U.S. District Court Illinois Southern U.S. District Court Indiana Northern U.S. District Court Indiana Southern U.S. District Court Iowa Northern U.S. District Court Iowa Southern U.S. District Court Kansas U.S. District Court Kentucky Eastern U.S. District Court Kentucky Western U.S. District Court Louisiana Eastern U.S. District Court Louisiana Middle U.S. District Court Louisiana Western U.S. District Court Maine U.S. District Court Maryland U.S. District Court Massachusetts U.S. District Court Michigan Eastern U.S. District Court Michigan Western U.S. District Court Minnesota U.S. District Court Mississippi Northern U.S. District Court Mississippi Southern U.S. District Court Missouri Eastern U.S. District Court Missouri Western U.S. District Court Montana U.S. District Court Nebraska U.S. District Court Nevada U.S. District Court New Hampshire U.S. District Court New Jersey U.S. District Court New Mexico U.S. District Court New York Eastern U.S. District Court New York Northern U.S. District Court New York Southern U.S. District Court New York Western U.S. District Court North Carolina Eastern U.S. District Court North Carolina Middle U.S. District Court North Carolina Western U.S. District Court North Dakota U.S. District Court Northern Mariana Islands U.S. District Court Ohio Northern U.S. District Court Ohio Southern U.S. District Court Oklahoma Eastern U.S. District Court Oklahoma Northern U.S. District Court Oklahoma Western U.S. District Court Oregon U.S. District Court Pennsylvania Eastern U.S. District Court Pennsylvania Middle U.S. District Court Pennsylvania Western U.S. District Court Puerto Rico U.S. District Court Rhode Island U.S. District Court South Carolina U.S. District Court South Dakota U.S. District Court Tennessee Eastern U.S. District Court Tennessee Middle U.S. District Court Tennessee Western U.S. District Court Texas Eastern U.S. District Court Texas Northern U.S. District Court Texas Southern U.S. District Court Texas Western U.S. District Court Utah U.S. District Court Vermont U.S. District Court Virgin Islands U.S. District Court Virginia Eastern U.S. District Court Virginia Western U.S. District Court Washington Eastern U.S. District Court Washington Western U.S. District Court West Virginia Northern U.S. District Court West Virginia Southern U.S. District Court Wisconsin Eastern U.S. District Court Wisconsin Western U.S. District Court Wyoming U.S. District Court Louisiana U.S. District Court Washington U.S. District Court West Virginia U.S. District Court Illinois Eastern U.S. District Court South Carolina Eastern U.S. District Court South Carolina Western U.S. District Court Alabama U.S. District Court U.S. District Court for the Canal Zone Georgia U.S. District Court Illinois U.S. District Court Indiana U.S. District Court Iowa U.S. District Court Michigan U.S. District Court Mississippi U.S. District Court Missouri U.S. District Court New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) New Jersey Western U.S. District Court (West Jersey U.S. District Court) New York U.S. District Court North Carolina U.S. District Court Ohio U.S. District Court Pennsylvania U.S. District Court Tennessee U.S. District Court Texas U.S. District Court Virginia U.S. District Court Norfolk U.S. District Court Wisconsin U.S. District Court Kentucky U.S. Distrcrict Court New Jersey U.S. District Court California U.S. District Court Florida U.S. District Court Arkansas U.S. District Court District of Orleans U.S. District Court State Supreme Court State Appellate Court State Trial Court Eastern Circuit (of the United States) Middle Circuit (of the United States) Southern Circuit (of the United States) Alabama U.S. Circuit Court for (all) District(s) of Alabama Arkansas U.S. Circuit Court for (all) District(s) of Arkansas California U.S. Circuit for (all) District(s) of California Connecticut U.S. Circuit for the District of Connecticut Delaware U.S. Circuit for the District of Delaware Florida U.S. Circuit for (all) District(s) of Florida Georgia U.S. Circuit for (all) District(s) of Georgia Illinois U.S. Circuit for (all) District(s) of Illinois Indiana U.S. Circuit for (all) District(s) of Indiana Iowa U.S. Circuit for (all) District(s) of Iowa Kansas U.S. Circuit for the District of Kansas Kentucky U.S. Circuit for (all) District(s) of Kentucky Louisiana U.S. Circuit for (all) District(s) of Louisiana Maine U.S. Circuit for the District of Maine Maryland U.S. Circuit for the District of Maryland Massachusetts U.S. Circuit for the District of Massachusetts Michigan U.S. Circuit for (all) District(s) of Michigan Minnesota U.S. Circuit for the District of Minnesota Mississippi U.S. Circuit for (all) District(s) of Mississippi Missouri U.S. Circuit for (all) District(s) of Missouri Nevada U.S. Circuit for the District of Nevada New Hampshire U.S. Circuit for the District of New Hampshire New Jersey U.S. Circuit for (all) District(s) of New Jersey New York U.S. Circuit for (all) District(s) of New York North Carolina U.S. Circuit for (all) District(s) of North Carolina Ohio U.S. Circuit for (all) District(s) of Ohio Oregon U.S. Circuit for the District of Oregon Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania Rhode Island U.S. Circuit for the District of Rhode Island South Carolina U.S. Circuit for the District of South Carolina Tennessee U.S. Circuit for (all) District(s) of Tennessee Texas U.S. Circuit for (all) District(s) of Texas Vermont U.S. Circuit for the District of Vermont Virginia U.S. Circuit for (all) District(s) of Virginia West Virginia U.S. Circuit for (all) District(s) of West Virginia Wisconsin U.S. Circuit for (all) District(s) of Wisconsin Wyoming U.S. Circuit for the District of Wyoming Circuit Court of the District of Columbia Nebraska U.S. Circuit for the District of Nebraska Colorado U.S. Circuit for the District of Colorado Washington U.S. Circuit for (all) District(s) of Washington Idaho U.S. Circuit Court for (all) District(s) of Idaho Montana U.S. Circuit Court for (all) District(s) of Montana Utah U.S. Circuit Court for (all) District(s) of Utah South Dakota U.S. Circuit Court for (all) District(s) of South Dakota North Dakota U.S. Circuit Court for (all) District(s) of North Dakota Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma Court of Private Land Claims United States Supreme Court