Warrantless administrative searches under environmental laws: the limits to EPA inspectors' statutory invitation.

I. INTRODUCTION

The Fourth Amendment to the U.S. Constitution protects citizens' privacy from unreasonable searches and seizures that are unsupported by a warrant based on probable cause.(1) As a general rule, a warrantless inspection of a private dwelling by a municipal administrative officer without proper consent is unconstitutional.(2) The U.S. Supreme Court extended this general rule to protect business owners and operators because they also have an expectation of privacy against unreasonable administrative searches of their commercial property.(3) The rule is not absolute. Supreme Court decisions have created numerous exceptions to the search warrant requirement,(4) including an administrative search of a pervasively regulated industry.(5)

The likelihood of an Environmental Protection Agency (EPA) inspection at any particular business varies according to certain factors, including the type of business and the goals of the environmental statutes being enforced. Nevertheless, inspections are a concern for virtually all business owners or operators when the consequences of violations include civil and criminal sanctions. Because one of EPA's top three priorities is multimedia inspections,(6) businesses subject to regulation under more than one environmental law should be particularly concerned. Because the rationale supporting multimedia inspections is the economical use of EPA resources concentrated at any given inspection site, businesses can expect, if not more frequent, at least more thorough EPA inspections under EPA's multimedia enforcement strategy.

In the recent case of United States v. V-1 Oil Co.,(7)the Ninth Circuit decided that warrantless administrative searches of a liquid propane gas retailer by officials from the Federal Railroad Administration (FRA) did not violate the Fourth Amendment.(8) FRA inspectors visited V-1 Oil's facilities pursuant to the authority granted them by the Secretary of Transportation under the Hazardous Materials Transportation Act (HMTA).(9) The purpose of the HMTA is to protect life and property by regulating the transportation of hazardous materials.(10) The bulk of federal environmental laws arguably shares a similar general purpose--the protection of human health and the environment.(11)

In holding that V-1 Oil was subject to FRA inspections and that the HMTA provided an adequate substitute for a warrant, the V-1 Oil majority relied on the fact that V-1 Oil engaged in activities relating to the transportation of a hazardous material.(12) The court held that a company that unloads propane from rail cars, and then returns the cars that contain residual amounts of hazardous material, is adequately notified by these activities alone that it is subject to inspections.

V-1 Oil protested, arguing that it was not part of the railroad industry and that the HMTA applied so broadly to any industry using ubiquitous hazardous materials that FRA's inspection powers were unlimited.(13) The Ninth Circuit's broad reading of the HMTA's inspection provision's scope also alarmed Judge John Noonan who, in dissent, warned that the 240-page list of regulated hazardous materials and the wide number of businesses potentially involved in transporting these materials in commerce provided great uncertainty as to the type of businesses potentially subject to FRA inspections.(14) Judge Noonan believed that the Ninth Circuit's holding casts too wide a net over potential defendants who, for example, may only manufacture the packaging or containers used to ship listed hazardous material including everything from poisonous aerosols to safety matches.(15)

Considering the Ninth Circuit's decision that a warrantless administrative search under the HMTA adequately protected V-1 Oil's Fourth Amendment right against unreasonable searches, the question arises whether the court would reach similar results if faced with constitutional challenges to an EPA warrantless administrative search of a company under other federal environmental statutes. What are the limits of these administrative searches conducted pursuant to environmental laws? Do EPA inspectors need warrants to conduct administrative searches under all or just some of the major environmental laws? This Chapter explores these questions by examining the case law that developed the warrantless administrative search exception and by analyzing the statutory inspection provisions of selected environmental statutes. Part II outlines the basic mechanics of searches and probable cause under the Fourth Amendment with specific emphasis on the history of administrative searches and the development of the pervasively regulated industry exception. Part III summarizes the V-1 Oil Co. litigation. Part IV analyzes seven environmental laws and assesses whether administrative inspections conducted pursuant to the statutes would be constitutional without a warrant. Part V concludes that after a case-by-case analysis of environmental statutes to determine whether they provide an adequate substitute for a warrant, the pervasively regulated industry exception to the warrant requirement has limited application to administrative searches conducted under environmental laws as currently written--particularly pollution control laws.

II. BACKGROUND

A. Types of Searches

Government agents may conduct searches when authorized by statute to do so.(16) Many federal environmental statutes authorize inspections.(17) Of course, statutory authority to inspect must be constitutional under the Fourth Amendment.(18)

The Fourth Amendment(19) requires that searches and seizures be reasonable. Often this means criminal probable cause and a criminal search warrant.(20) When government agents are specifically searching for evidence of crime, the law usually requires probable cause to believe that it is more probable than not that a crime has been committed, and that such evidence of the crime--including fruits or instrumentalities--is currently located in the place to be searched.(21) This will be called criminal probable cause in this Chapter. The appropriate remedy for evidence seized in contravention of the Fourth Amendment is suppression of the evidence at a criminal trial.(22)

In contrast, when agents seek violations of health, safety, or welfare standards, or are policing the various administrative regulatory schemes, the inspection program need only be supported by "reasonable legislative or administrative standards."(23) This will be called administrative probable cause in this Chapter. In Marshall v. Barlow's Inc.,(24) the Court clarified the Camara holding, stating that the administrative probable cause standard may be "based not only on specific evidence of an existing violation but also on a showing that `reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment]."'(25) Courts have adopted this lower standard of administrative probable cause in environmental cases.(26) Courts have also found that statutory authority to enter a business and conduct inspections provides a government agent the parallel authority to obtain administrative search warrants.(27)

B. Administrative Searches of Pervasively Regulated Industries: The Evolution of Two Standards

Despite the rule that administrative searches of business property require an administrative search warrant,(28) the U.S. Supreme Court acknowledges an exception for businesses that are considered pervasively regulated.(29) The Court first addressed searches conducted for administrative, as opposed to criminal, purposes in Frank v. Maryland.(30) In Frank, a Baltimore health department inspector, acting on a complaint that Frank's home was the source of a neighborhood rat problem, inspected the perimeter of Frank's house and found in the rear of the house a pile of straw and rodent feces.(31) When Frank confronted the inspector, the inspector informed Frank of the report and requested permission to inspect the basement area. Frank refused and the inspector left. The inspector returned the next day with two police officers and, finding Frank in violation of the Baltimore health code, issued him a warrant on which he was arrested and found guilty the next day. On appeal, the Court upheld Frank's conviction, holding that no search warrant was required to enforce compliance with health and safety regulations because such a requirement would interfere with "the indispensable importance [of] the maintenance of community health."(32)

While criminal searches required a warrant, administrative searches remained an exception to the warrant requirement until the Court realized, eight years later in Camara v. Municipal Court,(33) the anomaly in allowing an individual and her property to be "fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior."(34) The Camara Court overruled Frank and held that administrative searches require administrative search warrants to provide individuals in their homes the traditional safeguards that the Fourth Amendment guarantees.(35) The court dismissed the argument that obtaining a warrant to enforce general health and safety laws would be too cumbersome. The Court also rejected the claim that the public interest in vigorously enforcing minimum fire, housing, and sanitary standards justified warrantless administrative searches.(36) The Court found that the public interest could still be served "within the confines of a reasonable search warrant requirement" because the burden of obtaining a warrant is not likely to frustrate the governmental purpose behind the administrative search.(37) The goal of a warrant requirement for an administrative search is to provide the individual with the assurance that a neutral magistrate found the administrative search proper while concurrently limiting the inspector's power to search.(38)

On the same day it decided Camara, the Court ruled in See v. Seattle(39) that warrantless administrative searches are generally unreasonable for commercial premises as well as homes.(40) In See, a fire inspector sought access to a locked commercial warehouse.(41) The Court held that administrative entry on commercial premises without consent could be made only through obtaining a warrant(42) because the business owner, like the occupant of a home, "has a constitutional right . . . to be free from unreasonable official entries upon his private commercial property."(43) Fearing the "unreviewed discretion of the enforcement officer in the field,"(44) the Court placed the discretion to grant an inspection warrant in the hands of a magistrate, according to the traditional warrant procedure.

The Court modified this line of cases by introducing the pervasively regulated industry exception to the administrative search warrant requirement. The exception took form following two germinal cases that involved activities long subject to historical or significant government regulation. First, in Colonnade Catering Corp. v. United States,(45) a caterer, licensed to serve alcohol, refused to allow an inspector from the Internal Revenue Service to inspect a locked storeroom.(46) After refusal, the inspector broke the door down.(47) The Court found that the general rule providing commercial premises with protection from warrantless administrative searches did not apply to this situation because the liquor industry had a long history of close supervision and inspection and Congress had "broad power" to regulate the "evils at hand" by writing statutes that provide for inspection of liquor licensees.(48) Because of the liquor industry's history of broad supervision and inspection, the Court found it to be an industry pervasively regulated by Congress.(49) Thus, the inspection required no warrant.(50) In the second pervasively regulated industry case, United States v. Biswell,(51) the Court considered the constitutionality of a warrantless administrative search conducted pursuant to a federal statute regulating the sale of firearms. Building on its Colonnade analysis of pervasively regulated industries, the Court held that "[i]n the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute."(52) The Court distinguished See because the housing code violations involved there could not be concealed easily, whereas any advance notice of an imminent inspection at a pawnshop, for example, could allow the owner enough time to hide any illegal weapons.(53) The Court reasoned that "unannounced, even frequent, inspections" were essential to effectively enforce the federal gun control statute.(54)

The Biswell Court justified warrantless administrative searches of pervasively regulated industries based on the argument that an owner or operator of a pervasively regulated business (for which a federal license is required) knows that the business's records and products "will be subject to effective inspection."(55) Where an "urgent federal interest" is furthered and "the possibilities of abuse and the threat to privacy are not of impressive dimensions,"(56) warrantless inspections may proceed if specifically authorized by a statute.(57) The Court acknowledged that firearm regulation may not be as deeply rooted in history as governmental control of the liquor industry, but the prevention of violent crime was a large enough interest to justify warrantless inspections.(58) Later, in Donovan v. Dewey,(59) the Court crystallized the Colonnade-Biswell exception as being defined by "the pervasiveness and regularity of the federal regulation" and the effect of such regulation on the owner's expectation of privacy.(60)

The Court refined and limited the pervasively regulated industry exception in Marshall v. Barlow's Inc.(61) The plaintiff refused to allow an agent of the Secretary of Labor to enter the nonpublic area of the plaintiff's electrical and plumbing business without a warrant.(62) The district court held that the type of administrative search involved required a warrant and that the statutory authorization in the Occupational Safety and Health Act of 1970 (OSH Act)(63) for warrantless inspections was unconstitutional.(64) The Secretary of Labor appealed, arguing that the plaintiffs business, and others like it involved in interstate commerce, had a long history of close supervision of employee safety and health conditions.(65) The Court rejected the Secretary's argument, noting that conducting a business that affects interstate commerce alone is not enough to strip the business owner of Fourth Amendment protection.(66) The Court also refused to accept that the "entirety of American interstate commerce" should be considered pervasively regulated(67) simply because OSH Act imposed minimum wages and maximum hours on employees. Instead of serving as a rule, the Barlow's Court considered the warrant exception for pervasively regulated industries of the Colonnade-Biswell variety to be the exception.(68) Unlike the plaintiff, the business owner must engage in a specific business that has "such a history of government oversight"(69) that there is no reasonable expectation of privacy such that the owner "voluntarily [chooses] to subject himself to a full arsenal of governmental regulation."(70)

Because the language of the statute failed to limit the scope and frequency of OSH Act administrative inspections,(71) the Court looked disapprovingly on the statute's regulatory scheme. The Court read the statute to apply broadly to "any establishment" or "any place of employment" without providing the standards to guide inspectors in their selection of search targets.(72) The statute placed no limitations on inspectors other than requiring inspections "during regular working hours and at other reasonable times . . . within reasonable limits" and in "a reasonable manner."(73) The Court determined that under statutory language of this type, a warrant issued by a neutral magistrate is required to assure the business owner that "the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria."(74)

In Donovan v. Dewey,(75) the Secretary of Labor sought to enjoin a mine operator from refusing to allow warrantless inspections under the Federal Mine Safety and Health Act (MSHA). The issue the Court considered was whether the certainty and regularity of the MSHA's inspection program provided a constitutionally adequate substitute for a warrant.(76) The Court determined that a statute must specifically apply to an industry and regulate that industry in a "sufficiently pervasive and defined"(77) way such that the owner cannot help being aware of likely inspection. Also, a statute's inspection program must be adequately certain and regular to provide an adequate substitute for a warrant.(78) The Court held that the MSHA passed muster because it specifically defines the frequency of inspection (every two to four years) for a specific industry (mining) and sets the standards the mines must meet (providing predictable and guided federal regulatory presence).(79) The MSHA is supported by a substantial federal interest, and it specifically prohibits notice of inspections to ensure that violations will not be concealed.(80) Thus, the MSHA clearly permitted warrantless inspections.(81)

The Camara Court emphasized that the test for the constitutionality of a warrantless administrative search is ultimately in the hands of courts because "reasonableness is still the ultimate standard."(82) The Court in New York v. Burger(83) condensed Dewey into a three-pronged test to give flesh to the skeleton of reasonableness for warrantless administrative inspections of pervasively regulated industries. This reasonableness test is met when 1) the underlying regulatory scheme is supported by a substantial government interest, 2) the warrantless administrative search is necessary to further the regulatory scheme, and 3) the scheme provides a constitutionally adequate substitute for a warrant.(84)

In Burger, the Court upheld a warrantless inspection of an automobile junkyard pursuant to a New York auto junkyard statute authorizing such inspections.(85) The statute specifically targeted the automobile junkyard business but provided no schedule for inspections, nor any criteria for inspectors to select a particular junkyard for inspection. Despite these defects, the Court found that the statute met the first two prongs of the test because New York had a substantial interest in regulating the auto junkyard industry in an effort to eradicate car theft,(86) and a warrantless search served that interest by providing inspectors with the element of surprise "crucial [for the] regulatory scheme . . . to function at all."(87) Without citing the provision in the New York statute to support its conclusion, the Court nevertheless held. that the statute provided an adequate substitute for a warrant because the statute informed the junkyard operator that inspections will be made "on a regular basis."(88) The cavalier treatment of the regularity and certainty requirements by the Burger Court significantly minimizes their importance in a warrantless administrative search analysis.(89) A complete reading of Burger, however, reveals that the Court did not disturb the requirement that a statute must target a specific industry such that the "owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes."(90)

III. United States v. V-1 0il Co.: The Litigation

An awareness that one's property will be subject to periodic inspections could be less apparent for some commercial property owners than for others. This was true for V-1 Oil Company, a liquefied propane gas retailer with branches in Idaho and other western states.(91) After rail cars full of propane from a Canadian distributor arrived at V-1 Oil's facilities and the gas was transferred to the company's storage tanks, V-1 Oil employees sealed and marked the cars for return to the distributor.(92) Between 1990 and 1993, an inspector from the Federal Railroad Administration (FRA)(93) attempted to inspect V-1 Oil's property four times under the authority of the Hazardous Materials Transportation Act (HMTA),(94) but was denied permission. Before any inspection, V-1 Oil first required all government inspectors to complete a detailed authorization form. If V-1 Oil approved the inspection, it scheduled an appointment for the inspector to return.(95) Finally, in August 1993, the United States sought to enjoin V-1 Oil from refusing access by filing an action under the HMTA.(96)

A. District Court

The district court first determined that V-1 Oil, even though it is a propane gas retailer, was engaged in a closely regulated industry because "[f]rom its inception, the railroad industry [sic] has been a heavily regulated industry."(97) After this threshold finding, the court applied the three pronged test, developed by the U.S. Supreme Court in New York v. Burger,(98) to determine whether a warrantless inspection of a pervasively regulated industry is reasonable. The test is met when 1) the underlying regulatory scheme is supported by a substantial government interest, 2) the warrantless administrative search is necessary to further the regulatory scheme, and 3) the scheme provides a constitutionally adequate substitute for a warrant.(99) The district court found the first two prongs of the Burger test were satisfied because the government had a substantial interest in regulating the transportation of hazardous materials that would be furthered by warrantless, unannounced inspections(100)

To satisfy the third prong, the government had to prove that the statute's inspection program provided a constitutionally adequate substitute for a search warrant.(101) The U.S. Supreme Court in New York v. Burger held that a statute which provides an irregular and unpredictable inspection scheme will not be found unconstitutional as long as the statute, as a whole, places adequate limits on inspectors' discretion.(102) On the issue of the HMTA's inadequate inspection scheme, (103) the district court accepted the argument that the government had a system for setting priorities for inspections that was dependent on "the amount of funding and personnel available to meet the statutory [inspection] directive."(104) While the U.S. Supreme Court has never determined that inadequate agency funding excuses the regularity factor, it has held that regularity of inspections is only a factor in the statutory analysis.(105) The irregular inspection history of V-1 Oil did not persuade the district court that warrants are required under the HMTA.(106) Instead, the district court held that an inspection of V-1 Oil's facility under the HMTA required no warrant(107) because 1) the HMTA states that inspectors may enter to inspect at reasonable times (regular business hours), 2) the requirement is narrowly defined to apply to a defined group of business operators, 3) FRA guidelines require inspectors to minimize disturbances of businesses, and 4) Burger minimized the role that regularity plays by making it only a nondeterminative factor. The district court noted that the HMTA was "intended to operate without search warrants"(108) and that "warrantless inspections . . . are clearly provided for in [the HMTA]."(109)

B. The Ninth Circuit

On appeal, V-1 Oil argued that FRA's warrantless inspections violated the Fourth Amendment.(110) The Ninth Circuit rejected V-1 Oil's first argument--that it could not be inspected by FRA as a closely regulated industry because it was not part of the railroad industry--because the court found the issue was whether V-1 Oil was the type of industry that could be regulated by the HMTA, not whether FRA had inspection oversight jurisdiction.(111)

Second, V-1 Oil argued that the HMTA lacked the necessary safeguards required to function as a substitute for a warrant. Framing the argument in the terms used by the U.S. Supreme Court in Marshall v. Barlow's Inc.(112) V-1 Oil alleged that it could not be inspected under the HMTA because the HMTA applied "to everyone in interstate commerce who uses any [hazardous materials],"(113) and not to a specific industry. In addition, V-1 Oil contended that the statute insufficiently limited inspectors' discretion because the scope of the FRA administrative searches was unlimited.(114)

With little discussion, the Ninth Circuit easily found the HMTA satisfied the first two prongs of the Burger test because the government has a substantial interest in protecting life and property by regulating the transportation and temporary storage of hazardous material.(115) Surprise inspections, the court reasoned, helped to enforce the statute.(116) The Ninth Circuit held that FRA administrative searches under the HMTA did not violate V-1 Oil's Fourth Amendment right against unreasonable search and seizure because the HMTA is an adequate substitute for a warrant(117) Moreover, the court found that the HMTA met the third prong of the Burger test because it adequately notified V-1 Oil, a retailer of propane gas, that it was subject to inspection by the FRA because the HMTA regulations specifically regulate the process of unloading containers(118) and securing containers containing residual hazardous materials for shipment.(119) The HMTA adequately limited the discretion of the FRA inspectors as to place, scope, and time, the court found, because the administrative search was limited to business premises and records during reasonable times.(120)

IV. STATUTORY AUTHORITY TO SEARCH

After a quarter century of litigation, the Supreme Court's decisions regarding the constitutionality of warrantless administrative searches of commercial property reveal two fairly discernible standards. The first standard, the Barlow's doctrine, requires an administrative search warrant for administrative searches conducted pursuant to those statutes that generally regulate all enterprises.(121)The second standard, the Dewey/Burger pervasively regulated industry doctrine, holds that a warrantless inspection is reasonable only under statutes that target specific industries (pervasively regulated industries) and that meet the three-pronged Burger test.

An analysis of the inspection provisions of seven environmental statutes(122) and of selected cases interpreting them is useful to anticipate the doctrine the Ninth Circuit and other courts are likely to adopt. The remainder of this Chapter will predict the likely outcome of a warrantless administrative search test case under these statutes.(123)

The V-1 Oil case is an example of the Ninth Circuit finding that an inspection scheme under a transportation safety statute was sufficiently limited to a group of businesses because the statute and its regulations "satisfactorily notif[y] the types of business subject to inspection."(124) Not all environmental statutes are similarly specific concerning inspection provisions or regulated activities. Indeed, the provisions and regulations regarding inspections vary under environmental statutes. One statute, for example, provides that refusal to allow an inspection is unlawful,(125) while some statutes require inspectors to give facility owners written notice of inspections.(126) Other statutes lack these provisions entirely.

In Marshall v. Barlow's Inc.,(127) the Secretary of Labor argued that a warrant requirement to conduct administrative searches under OSH Act would render warrantless administrative searches under other regulatory statutes "constitutionally infirm."(128) The Court allayed the Secretary's concern by limiting its holding to "the facts and law concerned with OSHA"(129) and by noting generally that the "reasonableness of a warrantless search . . . will depend upon the specific enforcement needs and privacy guarantees of each statute."(130) This reasoning signals the importance the Court put on a case-by-case approach to each statute(131) when the reasonableness of a warrantless administrative search is at issue.(132)

To satisfy the warrantless administrative search exception of the pervasively regulated industry Dewey/Burger doctrine, the Dewey Court required a statute to be "specifically tailored to address [the concerns of an industry]" such that the regulation of that industry is "sufficiently pervasive and defined that the owner of . . . a facility cannot help but be aware that he 'will be subject to effective inspection."(133) In addition, the Burger Court added that "the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant"(134) such that "the discretion of the inspectors . . . [is] `carefully limited in time, place, and scope."(135) For a warrantless administrative search to be reasonable, then, the statute must establish "a predictable and guided federal regulatory presence."(136)

Warrantless administrative searches are not reasonable under the Barlow's nonpervasively regulated industry doctrine either because the statute at issue fails to target its inspection program at a single pervasively regulated industry, or because the statute is insufficiently comprehensive, or both.(137) Generally, the pollution control statutes(138) regulate the activities of a broad variety of industries.(139) Their inspection schemes will be examined first.

A. Clean Air Act

The Clean Air Act (CAA)(140) seeks to protect and enhance air quality to promote public health, welfare, and the productive capacity of U.S. citizens.(141) In addition, the CAA declares its primary goal is the encouragement of actions by all levels of government consistent with pollution prevention.(142) To achieve these goals, the CAA established a complex regulatory program that includes an inspection scheme to ensure compliance. (143)

To control the abundant sources of air pollution, the inspection provisions of the CAA include broad language that allows inspections of "any premises"(144) owned by a person who operates any emission source.(145) The inclusive language of the CAA's records and inspection provision is not tailored to regulate a particular industry.(146) Therefore, inspections conducted under the CAA require an administrative warrant under the Barlow's doctrine because, similar to OSH Act, the CAA does not regulate one industry.

Congress could redesign the CAA, or parts of it, to target a specific industry. In this situation, the analysis shifts to the third prong of the Burger test, which requires the suspect statute to be a constitutionally adequate substitute for a warrant insofar as it puts the owner on notice of periodic inspections and limits the discretion of the inspectors.(147)

The Burger Court concluded that the New York junkyard statute adequately advised the operator of a vehicle dismantling business that inspections would be made on a regular basis(148) despite the absence of any language in the statute that indicated the frequency of inspections, or whether inspections might occur at all.(149) The CAA also enumerates no detailed schedule for inspections but provides inspectors the right of entry to any emission source premises and access to any records or equipment.(150)

In addition, the Burger Court looked to whether the suspect statute limited the discretion of inspectors as to time, place, and scope.(151) The Court was satisfied that inspectors' discretion would be limited under the New York statute because it allowed them to inspect records, vehicles, and vehicle parts during regular and usual business hours.(152) Because the CAA correspondingly limits inspections to certain items(153) and requires the inspections to be conducted at reasonable times,(154) a court would likely be persuaded that the CAA provides a constitutionally adequate substitute for a warrant as required under Burger.

B. Clean Water Act

The goal of the Clean Water Act (CWA)(155) is to eliminate pollution discharged into the surface waters of the United States from any point source.(156) To fulfill this goal, Congress used broad language to define key statutory terms like "pollutant" and "point source."(157) Congress wrote the inspection and record keeping provisions of the CWA broadly enough so that no specific industry could reasonably be considered to be the primary target of the provisions.(158) A landowner, for example, may operate any number of different businesses on her land that would still be subject to the discharge permit requirement of section 404.(159) Because the inspection provision does not target one specific type of effluent discharger, the Barlow's doctrine requires an administrative warrant for any inspections under the CWA.(160)

Alternatively, if Congress tightened the inspection provisions of the CWA to target specific industries, a court may be satisfied that the Barlow's test has been met, requiring it to examine the statute through the lens of the Burger factors. Using Burger as a template--where vague statutory language easily satisfied the Court's concerns that a statute must limit an inspector's discretion--the existing inspection provisions of the CWA easily pass constitutional muster. First, inspectors have a right of entry to any premises in which an effluent source, or records pertaining to an effluent source, are located.(161) Second, inspectors may only arrive at reasonable times and inspect records or monitoring equipment, or sample any effluent the owner is required to sample.(162) This language, as noted above,(163) is similar to the New York statute's language that the Court found in Burger had adequately limited inspector discretion. Accordingly, the inspection provisions of the CWA pass the Burger test.

C. Resource Conservation and Recovery Act

Generally, the goal of the Resource Conservation and Recovery Act (RCRA)(164) is the prevention of any release of a hazardous substance to minimize the threat to human health and the environment.(165) RCRA's inspection provisions apply to a wide variety of enterprises that generate, treat, store, transport, or dispose of hazardous waste.(166) A business may, because of inaccurate record keeping or ignorance of the law, inadvertently become a hazardous waste generator or storage facility if it meets the regulatory definitions.(167) Because RCRA does not identify a pervasively regulated industry as its target,(168) and because businesses can unwittingly stumble across the threshold into regulated activities by a lapse of record keeping, administrative warrants should generally be required for most RCRA administrative inspections of generators or storage facilities.

In contrast, hazardous waste transporters, treaters, and disposers are arguably discrete, single industries.(169) There is little reason to believe that a company prominently transporting, treating, or disposing of hazardous waste would be surprised to find itself subject to RCRA regulation. While courts may require EPA inspectors to seek administrative search warrants to inspect businesses primarily generating or storing hazardous waste, an inspector visiting a business that transports, treats, or disposes of hazardous waste may not need an administrative search warrant because these businesses meet the Barlow's nonpervasively regulated industry test.(170)

Before concluding that a warrantless administrative search of a transporter, treater, or disposer of hazardous waste is reasonable under RCRA, a court must examine RCRA's inspection provisions to determine whether they satisfy the Burger test.(171) The statute mandates an inspection no less frequently than every two years for all treatment, storage, and disposal facilities.(172) The general provision regarding inspections provides that inspectors may have access to any place, at reasonable times, to inspect and obtain samples of any wastes.(173) Inspectors also have access to all pertinent records.(174) Because RCRA provides a schedule for inspections, thereby ensuring certainty and regularity, and because the other inspection provisions are similar to the provisions in the New York statute that the Court found limited inspectors' discretion in Burger,(175) the Burger test is sufficiently satisfied so that a warrantless administrative search of a treatment, storage, or disposal facility should be considered reasonable.(176)

D. Comprehensive Environmental Response, Compensation, and Liability Act

The purposes of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)(177) are remediation and responsibility. Its remedial provisions authorize the government to spend money to clean up a site,(178) and its broad liability provisions enable the government to obtain reimbursement for its costs from parties made strictly liable for any releases.(179) Similarly, broad inspection provisions permit inspectors to enter "any vessel, facility, establishment, or other place or property"(180) to determine whether there has been a release or whether there is a threat of a release of a hazardous substance, pollutant, or contaminant. CERCLA's broad focus allows inspections anywhere hazardous substances may be or have been generated, stored, treated, disposed of, or transported from.(181) Because many different industries could conceivably meet this statutory description, CERCLA's inspection provisions are not targeted at any particular industry. Accordingly, a warrantless administrative inspection would not be reasonable under the Barlow's test.(182)

Would modifying CERCLA to target a specific industry, or a court's initial finding that CERCLA adequately regulated a pervasively regulated industry, permit a court to conclude that warrantless administrative searches were reasonable under the Burger test? Predictably, Congress designed CERCLA's inspection provisions(183) using language similar to that found in the CAA and CWA inspection provisions. Inspectors may only have access to facilities or documents at reasonable times,(184) and inspectors must give reasonable notice before inspecting and copying documents.(185) The existing language of CERCLA's inspection provisions meets the Burger test because it notifies a business that an inspection is conducted pursuant to the law, and because the provisions constrain an inspector's discretion concerning the time, place, and scope of an inspection as required by the Burger Court.

E. Toxic Substances Control Act

The purpose of the Toxic Substances Control Act (TSCA)(186) is to assure that technological innovation and commerce involving chemical substances and mixtures do not present an unreasonable risk of injury to human health or the environment.(187) Analysis of TSCA's inspection provisions prior to the 1988 amendments(188) suggests that an administrative search warrant would have been necessary under the Barlow's doctrine to inspect a facility pursuant to TSCA because its inspection scheme did not pertain to a single pervasively regulated industry.(189) TSCA's amended inspection provisions target lead-based products, but do not target a specific industry among those that manufacture, process, or store chemical substances or mixtures, or lead-based products.(190)

Under this general language, many different industries are conceivably subject to inspections under TSCA. For example, warehouses containing crates of lead-based paint, or retailers of any variety selling lead-based paint or chemical-based substances, could be subject to inspection. Given the large number of chemical substances created and used every day in the United States, and the pervasive presence of chemicals in virtually every industry, TSCA applies to a variety of industries--both pervasively and nonpervasively regulated. Accordingly, under the Barlow's doctrine, administrative warrants are required for inspections because the statute fails to target its inspection program at a specific industry.(191)

A modification of TSCA by Congress to regulate specific manufacturers, commercial processors, storers, or transporters would have a similar effect on the analysis of warrantless administrative searches as discussed above. First, TSCA permits inspections at reasonable times only after the owner receives written notice for each requested entry.(192) While TSCA inspectors may have access to documents and facilities,(193) they may not inspect financial data, sales and pricing data, personnel data, or research data unless a description of this information is specifically provided in the prior written inspection notice.(194) Therefore, TSCA's inspection provisions should satisfy the Burger doctrine because the owner of a commercial facility would be advised that the inspection was made pursuant to the law, and because the inspection provisions more than adequately limit the discretion of inspectors.

F. Federal Insecticide, Fungicide, and Rodenticide Act

The basic purpose of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)(195) is to regulate, through registration with EPA,(196) the manufacture, shipment, or sale of any product used to control pests. Indeed, the key to the definition of "pesticide" is intended use. If a product is represented to consumers as a pesticide, it is regulated as a pesticide regardless of its original purpose when manufactured.(197) The inspection provisions of FIFRA target those portions of the pesticide industry that engage in the production, sale, or distribution of pesticides or related devices.(198) FIFRA potentially regulates a broad variety of businesses that sell and distribute pesticides, including grocery stores, hardware stores, agricultural supply stores,(199) convenience stores, and the distributors who supply them. Because many different businesses sell or distribute pesticides under FIFRA's definition,(200) and because the definition of a pesticide includes any intended use, a court is likely to find that FIFRA fails to regulate a single industry with respect to sellers and distributors, and that a warrantless administrative search of those facilities fails to meet the Barlow's doctrine.(201)

Producers of pesticides, unlike sellers or distributors, engage in the single commercial activity of manufacturing pesticides and therefore warrantless administrative searches of pesticide producers arguably satisfy the Barlow's nonpervasively regulated industry test because pesticide manufacturers must register all pesticides.(202) FIFRA must still be an adequate substitute for a warrant before a warrantless administrative search will be reasonable. FIFRA provides that inspections, carried out upon request during reasonable times, may extend to records regarding delivery and storage of pesticides, but may not extend to financial, sales, or research data.(203) In addition, inspectors may enter at reasonable times any establishment or place that holds pesticides for distribution or sale.(204)

Even though this language provides similar restrictions on inspector's discretion as required by Burger, Congress further limited administrative inspection powers by adding a warrant provision to FIFRA that empowers inspectors to obtain and execute inspection warrants that authorize entry, inspection, and access to records.(205) Accordingly, the statute provides a warrant mechanism for administrative inspections pursuant to FIFRA that militates against the reasonableness of a warrantless administrative search.(206)

G. Safe Drinking Water Act

The Safe Drinking Water Act (SDWA)(207) primarily regulates, according to national standards, the municipal water supply from public water systems at the state level.(208) The target industry of its inspection scheme includes any supplier of water (usually a municipality), a person subject to the national regulations, or a person conducting underground injection.(209) When municipalities supply their citizens with water from publicly operated water systems, it is reasonable to conclude that the SDWA's regulations focus neatly on a single industry--municipalities. The fact that municipalities, or private contractors hired by a city, supply a city with drinking water satisfies the Dewey requirement because a regulated municipality or a contractor is a discrete entity that cannot claim ignorance of federal public water source quality standards included in and enforced under the SDWA in the same way that licensed gun dealers cannot deny knowledge of federal firearm regulation. Municipalities receive constructive notice of inspections as the Dewey/Burger doctrine contemplates. The language of the SDWA's inspection provision also requires inspectors to give actual notice to the state agency with responsibility for safe drinking water before an entry.(210)

Arguably, however, the SDWA does not provide the certainty and regularity in its inspection scheme that is necessary for the statute to serve as a constitutionally adequate substitute for a warrant. Inspectors may examine records and facilities at reasonable times, test the public water system, and audit the records or reports that the supplier must maintain.(211) In contrast to the Federal Mine Safety and Health Act,(212) the SDWA does not provide a schedule for inspections.(213) After Burger, however, a court is unlikely to conclude that a statute is an inadequate substitute for a warrant merely because the statute contains no inspection schedule to regulate the frequency of inspections. After all, New York's auto junkyard statute failed the pure Dewey test because it was silent as to the frequency and certainty of inspections, but the Burger Court minimized this factor.(214) Accordingly, warrantless administrative searches under the SDWA are reasonable under the Dewey/Burger pervasively regulated industry doctrine because the SDWA inspection scheme targets discrete industries, such as municipalities or water contractors. In addition, the SDWA meets the Burger requirements because municipalities are on notice of potential inspections and inspectors' discretion is limited to inspecting documents and water facilities.

V. CONCLUSION

The fine contours of the pervasively regulated industry exception to the administrative search warrant requirement as applied to inspections under environmental statutes remain largely undeveloped. Existing Supreme Court decisions are hardly adequate to explain all the controlling principles surrounding the Fourth Amendment in the business inspections area.(215) Because Congress did not usually specify the kind of industries it intended to regulate under most environmental laws' inspection provisions, the pervasively regulated industry exception to the warrant requirement is currently of limited use to EPA inspection efforts. In the Ninth Circuit, businesses like the V-1 Oil company that challenge inspections under statutes that specifically regulate their activities are likely to be unsuccessful. A change in environmental policy in Congress, however, could induce amendments to environmental statutes' regulatory schemes that would target inspections at specific industries. In this scenario, the reasonableness of most warrantless administrative searches under Burger would be only a knock on the door away.

(1) The Fourth Amendment states:

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

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized. U.S. Const. amend. IV. (2) Camara v. Municipal Court, 387 U.S. 523, 528-29 (1967).

(3) See v. City of Seattle, 387 U.S. 541, 543 (1967); Marshall v. Barlow's, Inc., 436 U.S. 307, 322-24 (1978).

(4) Among the exceptions are "investigatory detentions, warrantless arrests, searches incident to a valid arrest, seizure of items in plain view, exigent circumstances, consent searches, searches of containers, inventory searches, border searches, searches at sea, administrative searches, and searches in which the special needs of law enforcement make the probable cause requirement impracticable." Greg Knopp et al., Project, Twenty-Fourth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1993-1994, 83 Geo L.J. 665, 692 (1995).

(5) Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), and United States v. Biswell, 406 U.S. 311 (1972), created the Colonnade-Biswell doctrine whereby an owner of commercial premises in a closely regulated industry has a reduced expectation of privacy. See infra text accompanying notes 45-60.

(6) Carol Barry, A Practical Guide to Surviving Multimedia Inspections, [News and Analysis] Envtl. L. Rep. (Envtl. L. Inst.) 10,305, 10,305 (June 1994). Multimedia inspections generally seek to address the release of pollutants to all media, including air, water, and soil. For a detailed discussion of the history of EPA multimedia enforcement, see Peter J. Fontaine, EPA's Multimedia Enforcement Strategy: The Struggle to Close the Environmental Compliance Circle, 18 Colum. J. Envtl. L. 31 (1993).

(7) 63 F.3d 909 (9th Cir. 1995), cert. denied, 116 S. Ct. 1824 (1996).

(8) Id. at 911.

(9) 49 U.S.C. app. [subsections] 1801-1819 (1988 & Supp. V 1993)

(current version at 49 U.S.C. [subsections] 5101-5127 (1994)).

(10) Id. [sections] 1801 (current version at 49 U.S.C. [sections] 5101

(1994)); see also United States v. V-1 Oil Co., Civ. No. 93-00333-E-HLR, 1995 WL 601410, at *1 (D. Idaho Oct. 11, 1994).

(11) See, e.g., "The purposes of this subchapter are--(1) to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population ...." Clean Air Act, 42 U.S.C. [sections] 7401(b) (1994). "A primary goal of this chapter is to encourage or otherwise promote reasonable Federal, State, and local governmental actions, consistent with the provisions of this chapter, for pollution prevention." Id. [sections] 7401(c). "The objectives of this chapter are to promote the protection of health and the environment and to conserve valuable material and energy resources ...." Resource Conservation and Recovery Act, 42 U.S.C. [sections] 6902(a) (1994). "Waste that is nevertheless generated should be treated, stored, or disposed of so as to minimize the present and future threat to human health and the environment." Id. [sections] 6902(b). "The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Clean Water Act, 33 U.S.C. [sections] 1251(a) (1994). "It is further the policy of the Congress to support and aid research relating to the prevention, reduction, and elimination of pollution and to provide Federal technical services and financial aid to State and interstate agencies and municipalities in connection with the prevention, reduction, and elimination of pollution." Id. [sections] 1251(b). "[T]he primary purpose of this chapter [is] to assure that such innovation and commerce in such chemical substances and mixtures do not present an unreasonable risk of injury to health or the environment." Toxic Substances Control Act, 15 U.S.C. [sections] 2601(b)(3) (1994).

(12) V-1 Oil, 63 F.3d at 912.

(13) Id.

(14) Id. at 913-14 (Noonan, J., dissenting).

(15) Id. (Noonan, J., dissenting) (citing 49 C.F.R. [sections] 172.101 (1995)).

(16) The Administrative Procedure Act requires that "inspection[s], or other investigative act[s]" be made only as authorized by law. 5 U.S.C. [sections] 555(c) (1994),

(17) E.g., Clean Air Act (CAA), 42 U.S.C. [sections] 7414(a)(2)(A)-(B) (1994); Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. [sections] 9604(e)(1)-(6) (1994); Clean Water Act (CWA), 33 U.S.C. [sections] 1318(a)(B) (1994); Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. [subsections] 136f(b), 136g(a)-(b) (1994); Resource Conservation and Recovery Act (RCRA), 42 U.S.C. [subsections] 6927(a), (c)-(e), 6991d(a)(1)-(4) (1994) (inspections regarding regulation of underground storage tanks); Safe Drinking Water Act (SDWA), 42 U.S.C. [sections] 300j-4(b)(1)-(2) (1994); Toxic Substances Control Act (TSCA), 15 U.S.C.[sections] 2610(a)-(b) (1994).

(18) This Chapter focuses on the constitutional issue. Another interesting issue, beyond the scope of this Chapter, is whether these statutes provide more protection to citizens than the constitution by requiring more than ex parse administrative warrants. Midwest Growers Coop. Corp. v. Kirkemo, 533 F.2d 455, 462-63 (9th Cir. 1976) ("In the absence of statutory authority to enter, the agency must utilize other investigatory techniques [than non-consensual administrative searches!"); Outboard Marine Corp. v. Thomas, 733 F.2d 883, 887, 890 (7th Cir. 1985) (holding that CERCLA lacks a specific entry provision to permit EPA to begin remedial construction at a CERCLA site, and thus EPA may not enter to begin the construction even with an ex parse administrative warrant); see Boliden Metech, Inc. v. United States, 695 F. Supp. 77, 80 (D.R.I. 1988) (suggesting that where Congress does not give EPA the right of entry, more than an ex parse warrant may be necessary).

(19) The Fourth Amendment protects people, not property. Katz v. United States, 389 U.S. 347, 351 (1967). A search has occurred when the person alleging protection proves that an actual expectation of privacy exists in the violated area, and when the expectation of privacy is one that society is prepared to consider reasonable. Id.; see also Smith v. Maryland, 442 U.S. 735, 740 (1979); Rakas v. Illinois, 439 U.S. 128, 13940 (1978); see generally 1 Wayne R. LaFave, Search and Seizure [subsections] 2.1-2.7, at 299-538 (2d ed. 1987).

(20) LaFave, supra note 19, [sections] 3.1(a), at 542.

(21) The criminal probable cause test requires "less than evidence which would justify . . . conviction" but yet "more than bare suspicion." Brinegar v. United States, 338 U.S. 160, 175 (1949); see also LaFave, supra note 19, [sections] 3.2(e), at 586-87, [sections] 3.7(d), at 101.

(22) Weeks v. United States, 232 U.S. 383, 398 (1914) (holding exclusionary rule applies in federal court); Mapp v. Ohio, 367 U.S. 643, 655-56 (1961)

(holding exclusionary rule applies in state court); see also LaFave, supra note 19, [sections] 1.1(e), at 14. For a discussion of the use of the exclusionary rule in quasi-criminal, civil, and administrative litigation, see LaFave, supra note 19, [sections] 1.7, at 144-73.

(23) Camara v. Municipal Court, 387 U.S. 523, 538 (1967). One commentator argues administrative searches are less intrusive than criminal searches. Wayne R. LaFave, Administrative Searches and the Fourth Amendment: The Camara and See Cases, 1967 Sup. Ct. Rev. 1, 18-19. Evidence of criminal violations properly discovered during an administrative inspection may be used by the government in a criminal proceeding. United States v. Branson, 21 F.3d 113, 118 (6th Cir.), cert. denied, 115 S. Ct. 223 (1994) (reversing lower court's suppression of criminal drug evidence seized during a warrantless administrative search conducted pursuant to a state vehicle inspection statute).

(24) 436 U.S. 307 (1978).

(25) Id. at 320 (quoting Camara, 387 U.S. at 538 (1967)).

(26) National-Standard Co. v. Adamkus, 881 F.2d 352, 361 (7th Cir. 1989); In re Alameda County Assessors Parcel Nos. 537-801-2-4 & 537-850-9, 672 F. Supp. 1278, 1287 (N.D. Cal. 1987); see also Bunker Hill Co. Lead & Zinc Smelter v. EPA, 658 F.2d 1280, 1285 (9th Cir. 1981); Outboard Marine Corp. v. Thomas, 610 F. Supp. 1234, 1242-43 (N.D. Ill. 1985); In re Stanley Plating Co., 637 F. Supp. 71, 73 (D. Conn. 1986).

(27) Boliden Metech, Inc. v. United States, 695 F. Supp. 77, 79 (D.R.I. 1988); Bunker Hill, 658 F.2d at 1285 (section 114(a)(2) of CAA is sufficient authority); Midwest Growers Coop. Corp. v. Kirkemo, 533 F.2d 455, 462 (9th Cir. 1976) (statutory power of entry allows administrative search through warrant); Alameda County, 672 F. Supp. at 1287 (section 308 of the Clean Water Act is sufficient authority); In re Order Pursuant to [sections] 3013(d) RCRA, 550 F. Supp. 1361 (W.D. Wash. 1982) (RCRA entry provision is sufficient).

(28) Camara, 387 U.S. at 545; Marshall v. Barlow's, Inc., 436 U.S. 307, 324

(1978).

(29) Donovan v. Dewey, 452 U.S. 594, 602-03 (1981) (holding that the mining industry is pervasively regulated); United States v. Biswell, 406 U.S. 311, 316-17 (1972) (finding firearm merchants heavily regulated); Colonnade Corp. v. United States, 397 U.S. 72, 76-77 (1970) (holding liquor licensees subject to close regulatory supervision and inspection); New York v. Burger, 482 U.S. 691, 708 (1987) (finding automobile junkyards closely regulated).

(30) 359 U.S. 360 (1959).

(31) Id. at 361.

(32) Id. at 372-73

(33) 387 U.S. 523 (1967).

(34) Id. at 530.

(35) Id. at 534.

(36) Id. at 531-33.

(37) Id.

(38) Id. at 532.

(39) 387 U.S. 541 (1967).

(40) Id. at 545-46.

(41) Id.

(42) Id. at 545.

(43) Id. at 543.

(44) Id. at 545.

(45) 397 U.S. 72 (1970).

(46) Id. at 73.

(47) Id.

(48) Id. at 76-77. The inspectors exceeded their authority, however, because the statute provided the government with a remedy for a recalcitrant liquor licensee: it made it a criminal offense to refuse admission to the inspectors. Id. at 77.

(49) Id. at 76-77.

(50) Id.

(51) 406 U.S. 311 (1972).

(52) Id. at 315.

(53) Id. at 316.

(54) Id.

(55) Id. It is important to note that under the Gun Control Act of 1968, 18 U.S.C. [subsections] 921-930 (1994), licensees are furnished each year with a revised set of rules that describe all of the dealer's obligations as well as the inspector's authority. Id. [sections] 921(a)(19).

(56) Biswell, 406 U.S. at 317.

(57) Id.

(58) Id. at 315-16.

(59) 452 U.S. 594 (1981).

(60) Id. at 600, 606.

(61) 436 U.S. 307 (1978).

(62) Id. at 310.

(63) 29 U.S.C. [subsections] 651-678 (1994).

(64) Barlow's, 436 U.S. at 310.

(65) Id. at 314.

(66) Id.

(67) Id.

(68) Id. at 313.

(69) Id.

(70) Id.

(71) The statute gave "almost unbridled discretion upon executive and administrative officers . . . when to search and whom to search." Id. at 323.

(72) Id. at 314

(73) 29 U.S.C. [sections] 657(a)(2) (1994)

(74) Barlow's, 436 U.S. at 323. In Biswell, the Court justified surprise inspections by noting that they are necessary to prevent a gun shop owner who learns of an imminent inspection from quickly hiding any illegal weapons before the inspectors arrive. United States v. Biswell, 406 U.S. 311, 316 (1972). The statute in Barlow's, OSH Act, regulates dangerous conditions such as structural defects, Barlow's, 436 U.S. at 316, that cannot be quickly concealed, as well as smaller safety requirements (such as passing out safety glasses or removing hazards in the workplace), the violation of which could be quickly concealed. Interestingly, surprise warrantless inspections would prevent employers from hiding OSH Act violations, but the Barlow's Court did not use that argument to allow warrantless inspections under OSH Act. Instead, as noted above, the Court held that the inspection required a warrant. Id. at 325. Environmental statutes regulate both large, obvious pollution problems and small, easily concealable problems. The enforcement of CERCLA, according to one author, does not depend on warrantless administrative searches because EPA is already aware of the existence of hazardous waste at a particular site, and the owner cannot usually correct the problem in a short time. Lorri J. Benson, Note, EPA Inspections of Hazardous Waste Sites: A Valid Exception to the Warrant Requirement for Administrative Searches?, 65 U. Det. L. Rev. 333, 345 (1988).

(75) 452 U.S. 594 (1981).

(76) Id. at 603

(77) Id.

(78) Id.

(79) Id. at 604.

(80) Id.

(81) The senate report on the MSHA even said that "a warrant requirement would seriously undercut this Act's objectives." S. Rep. No. 181, 95th Cong., 1st Sess. 27 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3427.

(82) Camara v. Municipal Court, 387 U.S. 523, 539 (1967).

(83) 482 U.S. 691 (1987).

(84) Id. at 702-03.

(85) N.Y. Veh. & Traf. Law [sections] 415-a(5)(a) (McKinney 1986).

(86) Burger, 482 U.S. at 708.

(87) Id. at 710.

(88) Id. at 711. The Court could not cite the New York junkyard statute to support its conclusion because the statute contained absolutely no language that specifies the regularity of junkyard inspections.

(89) The Court disposed of the inspection regularity issue in a footnote. Id. at 711 n.21. Prior to the Burger decision, the "real issue" before the Court in these cases was "whether the statute's inspection program, in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant." Donovan v. Dewey, 452 U.S. 594, 603 (1981). The Dewey Court gave no indication that this was an insignificant part of the analysis; rather, the regularity requirement was considered the "real issue." Id. It was significant to the Court that the MSHA had a specific inspection schedule that required all surface mines to be inspected at least twice a year and all underground mines at least four times a year. Id. at 604. Moreover, as an indication of the degree to which mine owners and operators are specifically made aware of the provisions of the MSHA (and accordingly by extension made aware of the likelihood of inspections), the MSHA requires the Secretary of Labor to inform mine operators of all standards proposed pursuant to the MSHA, which in the words of the Court, "establishes a predictable and guided federal regulatory presence" instead of leaving the frequency and purpose of inspections to the unchecked discretion of government officers. Id. The Burger Court virtually ignored this factor.

(90) Burger, 482 U.S. at 703 (citing Dewey, 452 U.S. at 600).

(91) United States v. V-1 Oil Co., 63 F.3d 909, 911 (9th Cir. 1995), cert. denied, 116 S. Ct. 1824 (1996); United States v. V-1 Oil Co., Civ. No. 93-00333-E-HLR, 1995 WL 601410, at *1 (D. Idaho Oct. 11, 1994).

(92) V-1 Oil, 63 F.3d at 911. The government argued that V-1 Oil Co. is subject to regulation by the Federal Railroad Administration (FRA) and Hazardous Material Transportation Act (HMTA) due to its activities relating to the transportation of propane such as unloading the gas from railroad cars and sending the empty cars with residual amounts of gas in them back to the Canadian distributor. Brief for the Appellee at 7-8, United States v. V-1 Oil Co., 63 F.3d 909 (9th Cir. 1995) (No. 94-36178), cert. denied, 116 S. Ct. 1824 (1996).

(93) The Secretary of Transportation delegated oversight responsibility for all transportation by rail to the Federal Railroad Administration. V-1 Oil, 63 F.3d at 911.

(94) 49 U.S.C. app. [subsections] 1801-1819 (1988 & Supp. V 1993) (current version at 49 U.S C. [subsections] 5101-5127 (1994)). The HMTA provided:

The Secretary may authorize any officer, employee, or agent to enter upon, inspect, and examine, at reasonable times and in a reasonable manner, the records and properties of persons to the extent such records and properties relate to-- (1) the manufacture, fabrication, marking, maintenance, reconditioning, repair, testing, or distribution of packages or containers for use by any person in the transportation of hazardous materials in commerce; or (2) the transportation or shipment by any person of hazardous materials in commerce. Any such officer, employee, or agent shall, upon request, display proper credentials. 49 U.S.C. app. [sections] 1808(c) (1988) (amended by 49 U.S.C. [sections] 5121 (1994)).

(95) V-1 Oil, 63 F.3d at 911.

(96) The district court granted the government's request for a preliminary injunction under 49 U.S.C. app. [sections] 1810(a) (1988) (current version at 49 U.S.C. [sections] 5122 (1994)). FRA agents subsequently conducted inspections at three V-1 Oil facilities that revealed deficiencies in V1 Oil's operations under the HMTA. Brief for Appellee at 11 n.8, V-1 Oil

(No. 94-36178).

(97) United States v. V-1 Oil Co., Civ. No. 93-00333-E-HLR, 1995 WL 601410, at *4 (D. Idaho Oct. 11, 1994). The defendant, on appeal, unsuccessfully argued that it was not part of the railroad industry and could not, therefore, be pervasively regulated by railroad industry statutes. V-1 Oil, 63 F.3d at 911. The Ninth Circuit rejected V-1 Oil's argument because, it reasoned, V-l Oil's privacy expectations were not triggered by the particular agency that conducted the inspection. The test was whether V-1 Oil belonged to a "certain industry" rather than what agency had oversight jurisdiction. Id.

(98) 482 U.S. 691, 702-03 (1987).

(99) Id. at 702-03.

(100) V-1 Oil Co., 1995 WL 601410, at *4.

(101) See supra text accompanying notes 83-90.

(102) Burger, 482 U.S. at 711 n.21.

(103) There is some disagreement between the government and the dissent as to the exact length of time between inspections of V-1 Oil. The government alleged that V-1 Oil's facilities were inspected in 1985, 1986, 1988, and 1989. Appellee's Brief at 8, V-1 Oil (No. 94-36178). To buttress its claim that the HMTA inspections were neither certain nor regular, the dissent disputes these facts by arguing that there were no inspections between January 1975 and November 1990. V-1 Oil, 63 F.3d at 914. Most importantly, the plaintiff admitted that inspection of V-1 Oil had been "somewhat sporadic." V-1 Oil Co., 1995 WL 601410, at *5.

(104) V-1 Oil, 1995 WL 601410, at *6.

(105) Burger, 482 U.S. at 711 n.2-1.

(106) V-1 Oil, 1995 WL 601410, at *6.

(107 )Id. at *7. The district court granted the government a permanent injunction preventing V-1 Oil from denying or preventing officers of the FRA from obtaining immediate, unannounced, and warrantless access to V-1 Oil's property and facilities during business hours to inspect records and operations. Id.

(108) Id. at *6.

(109) Id. at *7. This analysis of the HMTA mirrors the analysis used by the Tenth Circuit in V-1 Oil Co. v. State of Wyo. Dep't of Envtl. Quality, 902 F.2d 1482 (l0th Cir.), cert. denied, 498 U.S. 920 (1990). That court held that "courts do not infer a warrant requirement from statutes which authorize inspections but do not discuss the necessity of warrants. Instead, a bare authorization for inspections is construed to authorize warrantless inspections." Id. at 1485. Cf. Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970) ("Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.").

(110) V-1 Oil, 63 F.3d at 911.

(111) Id.; see supra note 97.

(112) 436 U.S. 307, 324 (1978) (finding the OSH Act statute applied to "all" businesses, making it too broad for warrantless administrative searches). See supra notes 71-72 and accompanying text.

(113) V-1 Oil, 63 F.3d at 912.

(114) Id.

(115) Id.

(116) Id. From one perspective, a warrant requirement frustrates the goals of environmental statutes by requiring an inspector, who arrives without a warrant and who is turned away by the owner, to obtain a warrant. This process effectively eliminates the surprise factor of an unannounced inspection and can allow a polluter to hide violations. Burger, 482 U.S. 691, 710 (1987); Dewey, 452 U.S. 594, 603 (1981) ("a warrant requirement clearly might impede the `specific enforcement needs' of the [MSHA]"). The defect in this argument is that restricting the use of warrantless inspections does not frustrate the goals of environmental statutes because public health and environmental safety interests are protected when warrants for inspections are approved by the court prior to an inspector's first attempt to inspect. In other words, the advantage of surprise is not eliminated if an inspector seeks a warrant ex parse prior to any inspection attempt. Burger, 482 U.S. at 722 n.8 (Brennan, J., dissenting).

(117) V-1 Oil, 63 F.3d at 912.

(118) 49 C F.R. [sections] 174.67 (1994)

(119) Id [subsections] 172.200-.204, 173.29, 173.31, 174.59.

(120) V-1 Oil, 63 F.3d at 911-12.

(121) The reduced expectation of privacy in a "closely regulated" industry was validated in Barlow's, but the Court "declined to find that warrantless inspections, made pursuant to [OSH Act] of all business engaged in interstate commerce fell within the narrow focus of this doctrine." Burger, 482 U.S. at 701.

(122) Clean Air Act (CAA), 42 U.S.C. [sections] 7414(a)(2)(A)-(B) (1994); Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. [sections] 9604(e)(1)-(6) (1994); Clean Water Act (CWA), 33 U.S.C. [sections] 1318(a)(B) (1994); Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. [subsections] 136f(b), 136g(a)-(b) (1994); Resource Conservation and Recovery Act (RCRA), 42 U.S.C. [subsections] 6927(a), (c)-(e), 6991d(a)(1)-(4) (1994); Safe Drinking Water Act (SDWA), 42 U.S.C. [sections] 300j-4(b)(1)-(2) (1994); Toxic Substances Control Act

(TSCA), 15 U.S.C. [sections] 2610(a)-(b) (1994). These statutes grant the authority to conduct inspections to the EPA Administrator (CAA and CWA) or any officer, employee, or representative of EPA or an authorized state (CAA, CWA, FIFRA, RCRA, SDWA, and TSCA) or any officer, employee, or representative of the President (CERCLA).

(123) As noted infra note 182 and accompanying text, EPA seeks administrative search warrants or injunctions for CERCLA inspections if its inspectors are denied access. Unless EPA policy changes or EPA inspectors exceed their instructions, the federal constitutional issues discussed here, as applied to federal statutes, will remain largely theoretical. The reader should note that the issues discussed in this Chapter are relevant to warrantless administrative searches conducted pursuant to state environmental statutes with inspection schemes modeled after federal statutes. While it is beyond the scope of this Chapter, a separate analysis of state constitutional law would be necessary to determine whether state supreme courts interpret their constitution's reasonableness requirement more broadly or more narrowly than the U.S. Supreme Court interprets the Fourth Amendment's reasonableness requirement.

(124) United States v. V-1 Oil Co., 63 F.3d 909, 912 (9th Cir. 1995), cert. denied, 116 S. Ct. 1824 (1996).

(125) TSCA, 15 U.S.C. [sections] 2614(4) (1994).

(126) FIFRA, 7 U.S.C. [sections] 136g(a)(2) (1994); TSCA, 15 U.S.C. [sections] 2610(a), (b) (1994); CWA, 42 U.S.C. [sections] 300j-4(b) (1994).

(127) 436 U.S. 307 (1978).

(128) Id. at 321.

(129) Id. at 322.

(130) Id. at 321. Where a statute applies only to a single industry that is heavily regulated, the Court indicated that the Colonnade-Biswell exception for pervasively regulated industry may apply. Id.

(131) Courts have held certain industries are pervasively regulated. See, e.g., New York v. Burger, 482 U.S. 691, 703-04 (1987) (vehicle junkyards); Donovan v. Dewey, 452 U.S. 594, 603 (1981) (mining); United States v. Biswell, 406 U.S. 311, 316 (1972) (gun dealers); Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970) (liquor); V-1 Oil v. Wyoming Dep't Envtl. Quality, 902 F.2d 1482, 1486 (10th Cir.), cert. denied, 498 U.S. 920 (1990)

(underground storage tank operators); Peterman v. Coleman, 764 F.2d 1416, 1421

(11th Cir. 1985) (secondhand dealers); Rush v. Obledo, 756 F.2d 713, 721 (9th Cir. 1985) (family day-care homes); Balelo v. Baldrige, 724 F.2d 753, 765

(9th Cir.), cert. denied, 467 U.S. 1252 (1984) (fishing); Bionic Auto Parts & Sales, Inc. v. Fahner, 721 F.2d 1072, 1079 (7th Cir. 1983) (auto parts dealers); United States v. Acklen, 690 F.2d 70, 75 (6th Cir. 1982) (pharmacies); United States v. Jamieson-McKames Pharmaceuticals, Inc., 651 F.2d 532, 537

(8th Cir. 1981), cert. denied, 455 U.S. 1016 (1982) (drug manufacturers); People v. Firstenberg, 155 Cal. Rptr. 80, 85 (1979), cert. denied, 444 U.S. 1012 (1980) (nursing homes); People v. Strauss, 502 N.E.2d 1287, 1290-91 (III. App. Ct. 1986), appeal denied, 511 N.E.2d 435 (1987) (horse racing facilities); State v. Bromell, 596 A.2d 1105, 1109 (N.J. Super. Ct. Law Div. 1991) (auto body repair shops); State v. Bonaccurso, 545 A.2d 853, 857

(N.J. Super. Ct. Law Div. 1988) (slaughterhouses); State v. Montoya, 861 P.2d 978, 983 (N.M. Ct. App.), cert. denied, 862 P.2d 1223 (N.M. 1993) (credit unions); Clay County Manor, Inc. v. State Dep't of Health & Env't, 849 S.W.2d 755, 759-60 (Teen. 1993) (nursing homes participating in the Medicaid program).

Other courts have held the following industries are not pervasively regulated. See, e.g., United States v. Seslar, 996 F.2d 1058, 1063 (10th Cir. 1993) (rental car companies); Allinder v. Ohio, 808 F.2d 1180, 1187 (6th Cir.), appeal dismissed, 481 U.S. 1065 (1987) (beekeepers); Pinney v. Phillips, 281 Cal. Rptr. 904, 911 (1991) (electrical contractors); Los Angeles Chem. Co. v. Superior Court, 276 Cal. Rptr. 647, 656 (1990) (retail auto dealership); People v. Robles, 477 N.Y.S.2d 567, 572 (1984) (used car dealership).

(132) As one commentator points out, a number of questions must be raised and answered before it is necessary to grapple with the warrantless search exception. Interview with Susan Mandiberg, Professor of Law, Northwestern School of Law of Lewis & Clark, in Portland, Or. (Nov. 10, 1995). First, there are many reasons a court may not consider a particular action a search. See, e.g., United States v. Dunn, 480 U.S. 294, 301-03 (1987) (barn fifty yards from fenced house does not fall within the curtilage of the house for Fourth Amendment purposes); Dow Chem. Co. v. United States, 476 U.S. 227, 236-38

(1986) (allowing aerial inspection under the "open fields" doctrine where the object of the search is located in an open area), United States v. Jacobsen, 466 U.S. 109, 113 (1984) (the person acting is not an agent of the government); Illinois v. Andreas, 463 U.S. 765, 771 (1983) (no expectation of privacy). If the action is a search, then each of the following questions must be answered negatively before the court will be faced with the issue of a warrantless search: 1) Has there been consent to search? E.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (holding search of property without a warrant or probable cause but with consent voluntarily given is reasonable). 2) Was the search conducted with sufficient criminal probable cause and a valid criminal warrant? 3) Was the search conducted with sufficient criminal probable cause, and with a recognized exception to the warrant requirement? E.g., Chambers v. Maroney, 399 U.S. 42, 51 (1970) (probable cause search of automobile without warrant allowed because automobile contents may be relocated by time warrant obtained); Warden v. Hayden, 387 U.S. 294 (1967)

(exigency of pursuit of suspected armed felon into house felon entered permitted warrantless entry and search). If none of these bases for a search exist, several others exist under a balancing approach, where the criteria for each type of search indicate the circumstances in which, on balance, the search is "reasonable" for Fourth Amendment purposes. Included in this category are administrative searches, Terry "stop and frisk," searches incident to arrest, inventory searches, investigatory detentions, and border searches. If the above questions are answered negatively, the issue of warrantless administrative searches is reached.

(133) Dewey, 452 U.S. at 603 (referring to the statute under consideration in that case, the Mine Safety and Health Act) (quoting Biswell, 406 U.S. at 316).

(134) Burger, 482 U.S. at 703 (quoting Dewey, 452 U.S. at 603).

(135) Burger, 482 U.S. at 703 (quoting Biswell, 406 U.S. at 315). The Burger test also includes two additional criteria. First, the regulatory scheme must be supported by a substantial government interest. Burger, 482 U.S. at 702. In dissent, Justice Brennan noted that the majority weakened the showing required for a governmental interest from urgent to merely "substantial." Id. at 721 n.7 (Brennan, J., dissenting). Second, a warrantless inspection must be necessary to further the regulatory scheme. Id. at 702. For the sake of argument, it can be conceded that the protection of the environment and the public from pollution is a substantial governmental interest. V-1 Oil Co. v. Wyoming Dep't Envtl. Quality, 902 F.2d 1482, 1486 n.1 (10th Cir. 1990), cert. denied, 498 U.S. 920 (1990). Except for CERCLA, it is also apparent that a warrantless administrative search would do more to further this governmental interest than to frustrate it. Because EPA is aware of the potential or actual presence of hazardous waste at a CERCLA site before it attempts to gain access to the site, a warrantless inspection under CERCLA does little to advance the government interest of discovering hazardous waste contamination. Thus, there is no need for unannounced inspections at a known hazardous waste site. Benson, supra note 74, at 345. (136) Dewey, 452 .U.S. at 604.

(137) See supra text accompanying notes 61-74.

(138) The pollution control statutes analyzed are the CAA, CWA, RCRA, and CERCLA.

(139) The permits required under RCRA, 42 U.S.C. [sections] 6925 (1994); 40 C.F.R. [subsections] 270.30-.31 (1995), CAA, 42 U.S.C. [sections] 7661c(c)

(1994), and CWA, 33 U.S.C. [subsections] 1342, 1382 (1994), require permitees to agree to inspection provisions that grant inspectors access to premises and records. For example, section 1342 of the CWA requires all permitees to meet the requirements under, inter alia, section 1318, the reporting and inspection provision. 33 U.S.C. [subsections] 1342, 1318 (1994). In addition, the regulations implementing the NPDES permit system specifically require all permitees to allow inspectors to enter facilities to inspect, to have access to, and to copy documents. 40 C.F.R. [sections] 122.41(i) (1995). One interesting question, beyond the scope of this Chapter, is whether these permit requirements can be read as implied consent to warrantless administrative searches.

(140) 42 U.S.C. [subsections] 7401-7671q (1994).

(141) Id. [sections] 7401(b)(1)

(142) Id. [sections] 7401(c)

(143) Id. [sections] 7414.

(144) Id. [sections] 7414(a)(2)(A)

(145) Id. [sections] 7414(a)(1). Depending on whether the source is existing, new, or modified, and whether it is in an air quality control region that is listed in attainment or nonattainment for certain pollutants, the source will be considered minor or major, with attendant regulatory consequences. Id. [sections] 7411(a)(2), (4), (6); [sections] 7407(d)(1)(A); 40 C.F.R. pts. 51-52 (1995).

(146) "[T]he Administrator may require any person who owns or operates any emission source, who manufactures emission control equipment or process equipment, who the Administrator believes may have information necessary or the purposes set forth in this subsection, or who is subject to any requirement of this chapter . . ." to provide entry to their premises. 42 U.S.C. [sections] 7414(a)(1), (2)(A) (1994). In Bunker Hill Co. Lead & Zinc Smelter v. EPA, 658 F.2d 1280 (9th Cir. 1981), the plaintiff argued that this provision did not authorize EPA to obtain an inspection warrant. Id. at 1285. The Ninth Circuit disposed of plaintiff's argument in one paragraph, noting that EPA was not seeking warrantless access under the pervasively regulated industry exception, and thus the "power of entry granted by [section 7414(a)(2)] . . . is sufficient authority to justify obtaining inspection warrants." Id.

(147) New York v. Burger, 482 U.S. 691, 703 (1987',.

(148) Id. at 711.

(149) Id. at 722 (Brennan, J., dissenting). The statute merely informs the business owner that "[u]pon request of an agent of the commissioner or of any police officer and during his regular and usual business hours" the owner must produce business records. Id. at 722 n.9.

(150) 42 U.S.C. [sections] 7414(a)(2) (1994).

(151) Burger, 482 U.S. at 711.

(152) Id. at 711-12.

(153) Arguably the CAA is distinguishable from the New York junkyard statute in Burger in that the New York statute narrows the list of records an inspector may inspect. N.Y. Veh. & Traf. Law [sections] 415-a(5)(a) (McKinney 1986). Those records must pertain to motor vehicles or parts of vehicles for which a certificate of title has been issued by the commissioner of the Department of Motor Vehicles, whereas the CAA more broadly allows access to and inspection of records held, for example, by anyone the EPA Administrator believes may have information necessary for EPA to fulfill the CAA's purpose. Thus, the CAA's record inspection provision's scope could be considered too broad to pass this element of the Burger test. Like many related questions about Burger, this issue remains unresolved.

(154) Inspectors "may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required [by the CAA] . . ., and sample any emissions which such person is required to sample [under the CAA]." 42 U.S.C. [sections] 7414(a)(2)(B) (1994). Arguably the limitation "reasonable times" is more broad than the New York junkyard statute's requirement that inspectors come only during "regular and business hours." N.Y. Veh. & Traf. Law [sections] 415-a(5)(a) (McKinney 1986). Accordingly, a court might find that the CAA fails to meet the Burger test's requirement that a statute adequately limit an inspector's discretion as to the time of the inspection. Alternatively, a court could find that reasonable fumes should be construed to mean regular and business hours and therefore conclude that the CAA adequately limits inspector's discretion. This issue remains unresolved.

(155) Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. [subsections] 1251-1387 (1994).

(156) Id. [sections] 1251(a)(1)

(157) Id. [sections] 362(6), (14)

(158) Potential inspection targets include "the owner or operator of any point source," id. [sections] 1318(a)(4)(A), and "any premises in which an effluent source is located or in which any records required . . . are located," id. [sections] 1318(a)(4)(B)(i). For example, the petitioners in In re Alameda County Assessor's Parcel Nos. 537-801-2-4 and 537-850-9, 672 F. Supp. 1278

(N.D. Cal. 1977), were farmers suspected of destroying a wetland on their property. Id. at 1279. The court upheld EPA's warrant that permitted it to conduct inspections of the farmers' property to determine its jurisdiction. Id. at 1286-87.

(159) U.S.C. [sections] 1344 (1994).

(160) The court in State v. Bonaccurso, 545 A.2d 853 (N.J. Super. Ct. Law Div. 1988) reached a different conclusion after interpreting the New Jersey Water Pollution Control Act, N.J. Stat. Ann. [subsections] 58:10A-1 to 58:10A-60

(West 1992), which contains language similar to the Clean Water Act. Bonaccurso, 545 A.2d at 857-58. While the court determined that the statute lacked the certainty and regularity of application necessary to act as a substitute for a warrant, it held that a liberal interpretation of the statute led to the implied requirement that an entry" be reasonable in time, place, and manner. Id. at 858. Therefore, the warrantless inspection did not violate the slaughterhouse owner's right against unreasonable administrative searches because the inspectors were reasonable in the scope of their inspection of the slaughterhouse. Id. One author argues that an effluent discharge permit under section 404 of the CWA is similar enough to the form of licenses required by businesses that sell firearms and liquor that a section 404 permit turns an effluent discharger into a pervasively regulated industry such that a warrantless administrative search is likely sustainable under the pervasively regulated industry exception to the warrant requirement. Robert M. Andersen, Technology, Pollution Control, and EPA Access to Commercial Property: A Constitutional and Policy Framework, 17 B.C. Envtl. Aff. L. Rev. 1, 27 (1989).

(161) 33 U.S.C. [sections] 1318(a)(2)(B)(i) (1994)

(162) Id. [sections] 1318(a)(2)(B)(ii).

(163) See supra text accompanying notes 148-52.

(164) Id. U.S.C. [subsections] 6901-6992k (1994)

(165) Id. [sections] 6902(b)

(166) Inspectors are authorized "to enter at reasonable times any establishment or other place where hazardous wastes are or have been generated, stored, treated, disposed of, or transported from." Id. [sections] 6927(a)(1).

(167) The type of generator (conditionally exempt, small quantity, or fully regulated) depends on the quantity of hazardous waste produced (less than 100 kilograms per month, between 100 and 1000 kilograms per month, or more than 1000 kilograms per month, respectively). 40 C.F.R. pt. 262 (1995). A business can become a storage facility if it stores hazardous materials for longer than the permitted period (90- or 180-day limit). 40 C.F.R. [sections] 262 34(a), (b), (d), (e) (1995)

(168) Although it did not use the Barlow's doctrine to support its reasoning, the court in National-Standard Co. v. Adamkus, 881 F.2d 352 (7th Cir. 1989), noted that "EPA's broad inspection authority is tempered by its need to show [administrative] probable cause and obtain an administrative search warrant . . . when a hazardous waste facility owner, such as [Plaintiff-Appellant] does not consent to the inspection." 881 F.2d at 360; see also In re Stanley Plating Co., 637 F. Supp. 71, 73 (D. Conn. 1986)

(finding evidence of existing violation was sufficient administrative probable cause to support an administrative search warrant, thereby implicitly supporting the need for such a warrant); In re Order Pursuant to [sections] 3013(d) RCRA, 550 F. Supp. 1361, 1364 (W.D. Wash. 1982) (finding the use of an ex parse administrative inspection warrant was proper under RCRA).

(169) Facilities operating underground storage tanks, regulated under 42 U.S.C. [sections] 6991 (1994), could at first blush be considered a discrete industry. However, under a Wyoming statute that regulated underground storage tanks, the Wyoming Environmental Quality Act, Wyo. Stat. [subsections] 35-11-101 to 1428 (1995), the Tenth Circuit ruled an inspector's warrantless administrative search of a gas station was unconstitutional because the statute applied to every business in the state and therefore provided no notice to the owner of any particular business that a warrantless inspection was in the offing. V-1 Oil Co. v. Wyoming Dep't of Envtl. Quality, 902 F.2d 1482, 1487 (10th) Cir. 1990), cert. denied, 498 U.S. 920 (1990).

(170) One court explained its decision to uphold a warrantless inspection pursuant to RCRA by distinguishing Barlow's. Commonwealth Dep't of Envtl. Resources v. Blosenski Disposal Serv., 566 A.2d 845, 850 (1989) ("The instant case involves [administrative] searches of only a single business engaged in the disposal of solid wastes .... [T]his case is substantially like Colonnade and Biswell in that only a single business or industry is involved."); of. Richard F. Cauley, Constitutionality of Warrantless Environmental Inspections, 15 Colum. J. Envtl. L. 83, 95 (1990) (concluding that RCRA and FlFRA's broad application renders their inspection schemes constitutionally suspect as to all parties). The Blosenski court's conclusion that the trash hauler was a part of the waste disposal industry directly supports the argument that companies primarily disposing of hazardous waste may be considered a single industry.

(171) The reasonableness analysis of an inspection of a RCRA generator or storage facility would also proceed to the Burger test if a court concluded that these businesses are specifically regulated industries, thereby satisfying the Barlow's nonpervasively regulated industry test, or if Congress amended RCRA to target specific industries.

(172) 42 U.S.C. [sections] 6927(e)(1) (1994). Transporters are not subject to mandatory inspection. This could affect the analysis if the issue becomes whether a lack of inspection schedule means that transporters should be treated like generators and storage facilities (administrative search warrant required), or like treaters and disposers (no administrative search warrant required). The lack of an inspection schedule for transporters, however, is not dispositive of the time, place, and scope element of the Burger test. See supra notes 85-89 and accompanying text.

(173) 42 U.S.C. [sections] 6927(a) (1994). The degree to which "reasonable times" adequately limits an inspector's discretion under the Burger test may also be an issue under RCRA. See supra note 154.

(174) 42 U.S.C. [sections] 6927 (1994).

(175) See supra text accompanying notes 151-52.

(176) For an alternative analysis of the likely constitutionality of a warrantless administrative search of different RCRA regulated entities, see Andersen, supra note 160, at 23-27.

(177) 42 U.S.C. [subsections] 9601-9675 (1994).

(178) Id. [sections] 9611.

(179) Id. [sections] 9607.

(180) Id. [sections] 9604(e)(3). Investigations to gather information as needed to identify the existence and extent of a release or threatened release may also be conducted pursuant to section 9604(b)(1).

(181) Id. [sections] 9604(e)(3)

(182) Indeed, CERCLA's inspection provisions do not encourage EPA to conduct warrantless inspections. EPA's CERCLA policy regarding entry and continued access to facilities states that when entry is needed, "an ex parse, judicial warrant should be sought." Memorandum from Thomas L. Adams, Jr., Assistant Administrator, EPA (June 5, 1987) (on file with author). Unless EPA policy changes, EPA will not likely conduct warrantless inspections of pervasively regulated industries under CERCLA.

(183) 42 U.S.C. [sections] 9604(e)(2)-(4) (1994) (documents, facilities, and samples).

(184) Id.

(185) Id. [sections] 9604(e)(2)

(186) 15 U.S.C. [subsections] 2601-2692 (1994)

(187) Id. [sections] 2601(b)(3).

(188) Title IV, known as the Lead-Based Paint Exposure Reduction Act, Pub. L. No. 102-550, 106 Stat. 3923 (codified as amended in scattered sections of 15 U.S.C.), was enacted in 1992 to eliminate lead-based paint hazards in housing, to prevent childhood lead poisoning, and to educate the public about the hazards of lead-based paint. U.S. Environmental Laws [sections] 6-2

(Walks E. McClain, Jr. ed., 1994).

(189) The pre-amendment language of the inspection provision reads: For purposes of administering this chapter, the Administrator, and any duly designated respresentative of the Administrator, may inspect any establishment, facility, or other premises in which chemical substances or mixtures are manufactured, processed, stored, or held before or after their distribution in commerce and any conveyance being used to transport chemical substances, mixtures, or such articles in connection with distribution in commerce. 15 U.S.C. [sections] 2610(a) (prior to amendment, 1988). Interpreting the 1988 language, the district court in Boliden Metech, Inc. v. United States, 695 F. Supp. 77 (D.R.I. 1988), held that TSCA's language implicitly authorized EPA to obtain administrative search warrants to conduct inspections. Id. at 79. The court reasoned that because Congress drafted TSCA ten years after the Supreme Court's decision in See v. Seattle, 387 U.S. 541

(1967), Congress granted EPA administrative entry and the ability to compel access through the warrant procedure. Boliden Metech, 695 F. Supp. at 80. Interestingly, the Boliden court read See to mean that a statute that authorizes non-consensual, warrantless entry would be unconstitutional. The dictum in Boliden Metech, however, has received no widespread support.

(190) 15 U.S.C. [sections] 2610(a) (1994) (The Amendment added "or products subject to subchapter IV of this chapter" to the language following "chemical substances or mixtures.").

(191) One author suggests a possible exception to this general rule because the portion of the chemical industry that manufactures polychlorinated biphenyls (PCBs) is specifically regulated by section 6 of TSCA and by EPA regulations (40 C.F.R. [sections] 761 (1995)). Andersen, supra note 160, at 26.

(192) 15 U.S.C. [sections] 2610(a) (1994)

(193) Id. [sections] 2610(b)

(194) Id. [sections] 2610(b)(2).

(195) U.S.C. [subsections] 136-136y (1994)

(196) U.S. Environmental Laws, supra note 188, [sections] 7-1.

(197) Mary D. Worobec & Cheryl Hogue, Toxic Substances Controls Guide 44-45

(1992). (198) 7 U.S.C. [sections] 136g(a)(1)(A) (1994). A device is "any instrument or contrivance (other than a firearm) that is intended for trapping, destroying, repelling, or mitigating any pest or any other form of plant or animal life . . . but not including equipment used for the application of pesticides when sold separately therefrom." Id. [sections] 136(h). Section 9 provides for a broader range of inspections--of "any place" where a pesticide with a suspended or canceled registration is being held--under a narrower registration condition. Id. [sections] 136g(a)(1)(B). Accordingly, this should not affect the warrant requirement analysis unless the pesticide or device has lost its registration.

(199) Highly specialized agricultural supply stores that predominately sell pesticides may be characterized as comprising a single industry, and therefore be considered a pervasively regulated industry under FIFRA. However, agricultural supply stores that have pesticides and related devices on their shelves along with a multitude of general agricultural merchandise are more like nonpervasively regulated grocery and hardware stores because they are not exclusively vendors of pesticides, but rather general supply stores.

(200) See Cauley, supra note 170, at 95 (concluding that FIFRA's broad application to all persons dealing with pesticides is similar to the OSH Act statute in Barlow's and therefore warrantless inspections would be unreasonable).

(201) Shortly after the Court decided Marshall v. Barlow's Inc., 436 U.S. 307

(1978), the EPA Assistant Administrator for Enforcement suggested, in a memorandum on inspection procedures, the possibility that warrants were not necessary for FIFRA inspections. EPA Memorandum on Inspection Procedures, Env't Rep. (BNA) 21:0121 (Apr. 11, 1979). The memorandum noted that the "Barlow's restrictions do not apply to areas that have been subject to a long standing and pervasive history of government regulation." Id. at 21:0123. Nevertheless, the EPA concluded that "for the present . . . FIFRA inspections should be conducted under the [administrative warrant] requirements applicable to other enforcement programs." Id.

(202) 7 U S.C. [sections] 136a (1994). Arguably, a convenience store or agricultural supply store that sells pesticides is also a pervasively regulated business for the same reason that the pawn shop that sold firearms in Biswell was considered pervasively regulated. Biswell is distinguishable in the case of a pesticide seller because no license is required to sell pesticides or related devices, whereas the pawn shop owner in Biswell was required to be licensed to sell firearms. 18 U.S.C. [sections] 923 (1994).

(203) 7 U.S.C. [sections]136f(b) (1994)

(204) Id. [sections] 136g(a)(1).

(205) Id. [sections] 136g(b)

(206) The warrant provision "empowers" inspectors to obtain warrants. It is debatable whether empowering inspectors to obtain administrative search warrants rises to the level of requiring inspectors to obtain administrative search warrants prior to administrative inspections. Arguably, the main inspection provisions of FIFRA, as discussed supra, satisfy the Burger test. If a court found that FIFRA specifically targeted a pesticide producer or if FIFRA were amended by Congress to do so, and if the court agreed that FIFRA provided the producer an adequate substitute for a warrant, an inspector's administrative search of that producer without-a warrant could be found to be reasonable.

(207) Public Health Service Act (Safe Drinking Water Act), 42 U.S.C. 300f-300n-3 (1994).

(208) Id. [sections] 300g.

(209) Id. [sections] 300j-4(b)(1)-(2). Underground injection is the subsurface emplacement of fluids by well injection that does not include underground injection of natural gas for purposes of storage. Id. [sections] 300h(d)(1).

(210) Id. [sections] 300j-4(b)(2).

(211) Id. [sections] 300j-4(b)(1)

(212) 30 U.S.C. [sections] 813(a), (i) (1994)

(213) Section 300j-4(a)(2) provides that each public water system must conduct water monitoring every five years, but it does not provide a similarly detailed schedule for inspections of water systems.

(214) See supra notes 88-89 and accompanying text. The inspection schedule provided by the Mine Safety and Health Act in Donovan v. Dewey, 452 U.S. 594

(1981), specifically defined the frequency of inspections, Id. at 601, whereas the automobile junkyard statute in New York v. Burger, 482 U.S. 691 (1987), was silent, Id. at 694 n.1. The Burger Court provided no explanation or support for its conclusion that "[t]he [auto junkyard] statute informs the operator of a vehicle dismantling business that inspections will be made on a regular basis." Id. at 711. Instead, the Court found that the time, place, and scope of inspections were adequately limited because, according to the language of the statute, inspections could only be conducted "`during [the] regular and usual business hours."' Id. (quoting N.Y. Veh. & Traf. Law [sections] 415-25 (McKinney 1986)).

(215) LaFave, supra note 19, [sections] 10.2(f), at 664.

David A. Christensen, Student, Northwestern School of Law of Lewis & Clark College, J.D. expected 1997, B.A. 1991, University of Washington. I thank Professor Susan F. Mandiberg, Northwestern School of Law of Lewis & Clark College, for her advice and comments, and Samm Rucki, for everything else.