Rocky Mtn Asbestos v. UAQB

----ooOoo----

Rocky Mountain
Asbestos Abatement, Inc.,
Petitioner,

v.

Utah Air Quality Board,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010421-CA

F I L E D
April 18, 2002 2002 UT App 118 -----

Original Proceeding in this Court

Attorneys:
Samuel D. McVey, Salt Lake City, for Petitioner
Mark L. Shurtleff and Melissa M. Hubbell, Salt Lake City, for Respondent -----

Before Judges Bench, Davis, and Orme.
DAVIS, Judge:

Petitioner Rocky Mountain Asbestos Abatement, Inc. (Rocky Mountain) appeals the order of the Utah Air Quality Board upholding five "Notice[s] of Violation and Order[s] to Comply" issued by the Division of Air Quality (DAQ). We affirm.

Rocky Mountain first alleges that evidence taken from its dumpster was seized in violation of its state(1) and federal constitutional rights and should have been suppressed. An agency's application of the law to the facts is reviewed "with varying degrees of strictness, falling anywhere between a review for 'correctness' and a broad 'abuse of discretion' standard." Drake v. Industrial Comm'n, 939 P.2d 177, 181 (Utah 1997) (citations omitted). The Fourth Amendment protects against administrative inspections of private commercial property. See Donovan v. Dewey, 452 U.S. 594, 598, 101 S. Ct. 2534, 2537-38 (1981). However, unless a proceeding is criminal or quasi-criminal in nature, the exclusionary rule is not applicable in the administrative context. See Sims v. Collection Div. of State Tax Comm'n, 841 P.2d 6, 13-14 (Utah 1992).

Even assuming the administrative hearings in this case could be characterized as quasi-criminal, the inspection conducted by the investigator for the DAQ was reasonable under the Fourth Amendment.(2) The investigator received the approval of an individual reasonably believed to be the property owner and was, therefore, acting under the apparent authority of the property owner to consent to a search of the dumpster. See Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S. Ct. 2793, 2800 (1990). Therefore, the evidence seized from Rocky Mountain's dumpster was not obtained in violation of Rocky Mountain's constitutional rights.

Rocky Mountain's substantial evidence argument is limited to (1) whether point count testing is required to determine that asbestos is present; (2) whether there was sufficient foundation for the chain of custody of various samples; and (3) whether the Red Rock project was NESHAP-sized. "When reviewing the factual findings made by an administrative agency, [we] will generally reverse only if the findings are not supported by substantial evidence." Drake, 939 P.2d at 181. Reversal is not warranted in this case.

First, point count testing is simply not required where Rocky Mountain acknowledged on its notification forms that samples were tested and that asbestos was present, a fact confirmed by laboratory testing.

Second, the chain of custody was clearly adequate. The samples from three removal sites were each date stamped and initialed by the analyst who performed the testing. A party is not required to "eliminate every conceivable possibility that the evidence may have been altered." State v. Wynia, 754 P.2d 667, 671 (Utah Ct. App. 1988).

Third, substantial evidence supports the conclusion that the Red Rock Elementary School asbestos abatement project was NESHAP-sized. Indeed, Rocky Mountain's notification form specifies that the amount of asbestos to be removed was 275 feet.

Affirmed.
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. Rocky Mountain did not provide sufficient support to determine whether a separate state constitutional violation occurred. See State v. Lafferty, 749 P.2d 1239, 1247 n.5 (Utah 1988) ("As a general rule, we will not engage in state constitutional analysis unless an argument for different analyses under state and federal constitutions is briefed.").

2. We need not reach the issue of whether the combination of the statute and the required "Notification of Demolition and Renovation" form provides a "constitutionally adequate substitute for a warrant." New York v. Burger, 482 U.S. 691, 703, 107 S. Ct. 2636, 2644 (1987) (citations omitted). Also, the dumpster site was not a site that required submission of a notification form.

Our disposition of this issue also obviates the need to address whether Rocky Mountain held a reasonable expectation of privacy in the contents of the dumpster, whether Rocky Mountain is a closely-regulated industry, or whether warrantless inspections are necessary to further the regulation of asbestos removal.