Request By:
Robert D. Bell, Secretary
Department For Natural Resources
and Environmental Protection
Capital Plaza Tower
Frankfort, Kentucky
40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: David C. Short, Assistant Attorney General
This letter is in response to your request for an opinion on the legality of the inspection of public water supply systems. Specifically, you want to know whether there is authority for the Department For Natural Resources and Environmental Protection to: (1) Enter a public water supply system to survey records required by Kentucky regulation, (2) Periodically enter and inspect a public water supply system without the necessity of alleging or suspecting a violation of a statute, regulation, or a departmental order, and (3) Enter and take water samples for the purpose of determining compliance with the statute, regulations, or a departmental order.
There are two questions involved in determining the legality of the inspections you describe: (1) Whether such inspections are authorized under Kentucky law, and (2) whether such inspections are permitted by the Constitutional provisions which guarantee freedom from unreasonable searches (Fourth Amendment, United States Constitution; Section 10 Kentucky Constitution).
As to question number (1), Kentucky Revised Statutes 224.033(10) states:
"The Department [For Natural Resources] shall have the authority, power, and duty to: Enter and inspect any property or premises for the purpose of investigating either actual or suspected sources of pollution or contamination or for the purpose of ascertaining any compliance or noncompliance with Acts 1972 (1st Ex. Sess.), Ch. 3, or any rule or regulation which may be promulgated thereunder."
Included in Acts 1972 (1st Ex. Sess.), Ch. 3, to which Kentucky Revised Statutes 224.033(10) refers is Kentucky Revised Statutes 224.060, a general prohibition against water pollution. That statute reads as follows:
"No person shall directly or indirectly throw, drain, run or otherwise discharge into any waters of the Commonwealth or cause or permit or suffer to be thrown, drained, run or otherwise discharged into such waters any substance that shall cause or contribute to the pollution of the waters of the Commonwealth of the standards adopted by the department or in contravention of any of the rules, regulations, or orders of the department or in contravention of any of the provisions of this chapter."
Together, Kentucky Revised Statutes 224.033(10) and Kentucky Revised Statutes 224.060 give the Department For Natural Resources and Environmental Protection authority to enter and inspect property to determine compliance or noncompliance with the general prohibition against water pollution. They also give authority to enter and inspect property to determine compliance or noncompliance with any rules or regulations promulgated under the general prohibition against water pollution.
The three kinds of inspections that you described in your request for an opinion are permitted under Kentucky Revised Statutes 224.033(10) as means to ascertain compliance or noncompliance with Kentucky Revised Statutes 224.060 and with the regulations promulgated under that statute.
The second consideration in determining the legality of a warrantless inspection of a public water supply system is whether such an inspection is Constitutionally permissible.
It has been held that inspections of commercial premises not open to the public without a warrant or consent are unlawful as unreasonable searches. See v. Seattle, 387 U.S. 541, 18 L. Ed. 943, 87 S. Ct. 1737 (1967); 68 Am. Jr. 2d. Searches & Seizures § 15 p 677. However, exceptions have been made where the inspections were of premises of businesses such as retail liquor stores and pawn shops handling guns and ammunition.
Colonade Catering Corp. vs. U.S., 397 U.S. 72 (1970),
U.S. vs. Biswell, 406 U.S. 311 (1972).
Since inspections of private regulated businesses have been held Constitutionally permissible, inspections of public utilities, such as public water supply systems, which are also subject to the exercise of the regulatory power of the State would also be permissible.
Highland Dairy Farms Co. vs. Helvetig Milk Condensing Co., 139 N.E. 418, 308 Ill. 294 (1923),
City of Gainesville vs. Gainesville Gas & Electric Power Co., 62 So. 919, 65 Fla. 404 (1919).
Indeed, it has been held that public utilities are not to be accorded the same Constitutional guarantees of privacy as an ordinary citizen in private business. 79 CJS, Searches and Seizures, § 4 p. 780.
The Court's attitude toward inspection of public utilities is illustrated in
U.S. vs. Alabama Highway Express, 46 F. Supp. 450 (1942): "Public Utilities are subject to the highest degree of accountability to the public, the public being represented by the administrative agency charged with supervision of their business. . . This accountability naturally allows . . . less protection and privacy than the ordinary citizen enjoys in his private business. To accord a public utility the same constitutional guaranties of privacy would frustrate the public welfare and tend to minimize the public's interest in the utility. Far from being condemned as unconstitutional, complete inspection by duly authorized agents . . . of the commissioner must be expected . . . as part of the price of functioning in the utility field."
To summarize, there is statutory authority permitting the Department For Natural Resources and Environmental Protection to conduct inspections of a public water supply system; these inspections being exceptions to the usual Constitutional requirement of a warrant or consent.