SECRETARY OF LABOR,
Complainant,

v.

PENNSYLVANIA STEEL FOUNDRY & MACHINE
COMPANY,
Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO,

Authorized Employee
Representative.

OSHRC Docket No. 78-0638

DECISION

BEFORE:  BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

I.  Background

In August 1977, a warrant was issued upon an ex parte application, empowering OSHA "to conduct an inspection pursuant to OSHA's National Emphasis Program for Foundries" ("Foundry NEP") of the Harrisburg, Pennsylvania foundry of the Pennsylvania Steel Foundry & Machine Company ("Penn Steel").  The warrant authorized OSHA to inspect the foundry "in accordance with the guidelines" set forth in the Foundry NEP.

A team of OSHA compliance officers inspected the Penn Steel facility for nearly a month.  As a result of the inspection, the Secretary issued three citations alleging 298 violations of OSHA standards.  Penn Steel contested all of the alleged citation items.

Protracted settlement discussions ensued.   Eventually, the parties agreed to litigate some of the citation items while continuing to try to settle the case.  In January 1979, Administrative Law Judge Joseph Chalk heard evidence on the 58 citation items that the parties could not agree upon during their settlement discussions.  The hearings on the 58 items closed and the parties, including the United Steelworkers of America, continued their settlement discussions.

In August 1979, Penn Steel moved for summary judgment claiming that the warrant authorizing the inspection was invalid on two grounds:   that it was not based on probable cause, citing Marshall v. Barlow's, Inc., 436 U.S. 307 (1978); and that warrants could not be issued ex parte, citing Cerro Metals Products v. Marshall, 467 F. Supp. 869 (E.D. Pa. 1979), aff'd, 620 F.7d 964 (3d Cir. 1980).  In Barlow's, the Supreme Court held that a search of a business under the Occupational Safety and Health Act could not be conducted without a warrant supported by probable cause.  In Cerro, the Eastern District Court of Pennsylvania held that ex parte warrants were not permissible under the then-existing version of 29 C.F.R. 1903.4, a regulation governing OSHA's resort to search warrants.  Both Barlow's and Cerro were decided after the inspection of the Penn Steel foundry.  Judge Chalk denied the motion for summary judgment, stating that he would not apply the Barlow's or Cerro cases retroactively.

The parties continued their settlement negotiations and in June 1980, Judge Chalk issued a preliminary decision.  In the preliminary decision, Judge Chalk addressed the 58 citation items on which evidence was presented and affirmed some of the citation items and vacated others.  A year later, the parties settled the remaining items and agreed in a settlement agreement that Judge Chalk's disposition of the 58 citation items set forth in his preliminary decision would take effect.  In July 1981, Judge Chalk issued his final decision.  It incorporated by reference and implemented his preliminary decision and the settlement agreement.

Both parties petitioned the Commission for review.  In its petition, Penn Steel repeated its contention that the "inspection was invalid because it was conducted pursuant to a warrant issued on an ex parte basis and without probable cause and that all evidence collected during said inspection should have been suppressed."  Penn Steel also petitioned for review of a number of citation items disposed of by Judge Chalk, but did not seek review of the settlement agreement.  The Secretary petitioned for review of only three citation items that were vacated by the judge.

Former Commissioner Cottine directed review on the issues contained in the Secretary's petition for review, including:

(1) Whether the Judge erred in vacating Citation No. 1, items 45(g) and (h) alleging noncompliance with 29 C.F.R. 1910.212(a)(1) on the grounds that "there was no evidence that the grinders have been operated within the statutory period or that when operated, they presented a hazard [to] employee; operating them."

(2) Whether the Judge erred in vacating Citation No. 1, item 46(a) alleging noncompliance with 29 C.F.R. 1910.212(a)(3)(ii) on the grounds that guarding of the cited machine was impossible and the alternative method of protection was not required by the standard.

Former Chairman Rowland also added the following issues:

Whether the judge erred in finding [Penn Steel] in violation of the Act as alleged in the following items of citation No. 1:  items 50, 53(a), 53(e), 63a(a), and 63a(b).

Supplemental briefs were requested and the parties were asked to address several more issues.[[1]]  Oral argument was held before the Commission on March 26, 1986.[[2]]

The questions before the Commission involve whether evidence should be suppressed because the inspection under the warrant was invalid, whether Penn Steel should be allowed to withdraw from the settlement agreement, and the merits of a few litigated citation items.[[3]]  For the reasons that follow, we hold that the evidence should not be suppressed, that judgment on the 240 unlitigated citation items should be entered in accordance with the settlement agreement, and that Judge Chalk's decision as to several litigated citation items should be affirmed as to some and reversed as to others.

II.  Validity of the Inspection; Suppression of Evidence.

Penn Steel argues that the inspection was invalid because OSHA proceeded contrary to its regulation in obtaining an ex parte warrant.  At the time of the inspection of the Penn Steel foundry in August 1977, the regulation governing OSHA inspections in the face of an employer's objection, 29 C.F.R. 1903.4, stated in part:

1903.4 Objection to inspection.

(a) Upon a refusal to permit a Compliance Safety and Health Officer, in exercise of his official duties, to enter without delay and at reasonable times any place of employment . . . [t]he Compliance Safety and Health Officer shall endeavor to ascertain the reason for such refusal, and shall immediately report the refusal and the reason therefore to the Area Director.  The Area Director shall consult with the Regional Solicitor, who shall take appropriate action, including compulsory process, if necessary.

(Emphasis added.)  In Cerro Metal Products v. Marshall, 620 F.2d 964 (3d Cir. 1980), the Third Circuit held that the original version of this regulation did not permit OSHA to seek a warrant in an ex parte proceeding.  Penn Steel contends that the Commission must apply the holding of Cerro to this case because it arises within the Third Circuit, and that the evidence gained through the inspection should therefore be suppressed.  Penn Steel also argues that the evidence should be suppressed for various other reasons.

A.  Retroactivity

Even if the warrant here would be declared invalid by the Third Circuit under Cerro, the question of retroactivity must be considered.  In deciding whether a decision construing the Fourth Amendment should be applied retro-actively, the Commission has been guided by United States v. Johnson, 457 U.S. 537 (1982).  See Carl M. Geupel Construction Co., 82 OSAHRC 60/B5, 10 BNA OSHC 2097, 2100 n.7, 1982 CCH OSHD 26,309, p. 33,282 n.7 (Nos. 81-55 and 81-56, 1982).[[4]]  In Johnson, the Court reviewed the question of retroactivity and found that Fourth Amendment cases were generally applied retroactively unless the case was a "clear break with the past."  Johnson, 457 U.S. at 549.  The Court stated that a decision was not generally considered a "clear break" unless that ruling caused "such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one," . . . . Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, . . . or disapproves a practice this Court arguably has sanctioned in prior cases, . . . or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.

457 U.S. at 551 (citations omitted).

This case does not fall neatly into two of the non-retroactivity categories in JohnsonCerro did not overturn or disapprove of a line of OSHA case law that had endorsed the seeking of an OSHA inspection warrant ex parte.  As far as case law was concerned, Cerro wrote on an almost clean slate.  This case instead falls within the category of cases involving an arguably-sanctioned practice--the seeking of warrants ex parte.

When the warrant in this case was issued in August of 1977, no court had disapproved of OSHA's practice of seeking some inspection warrants without the participation of the party to be inspected.  Indeed, when the warrant was issued, even the requirement for OSHA to seek a warrant was still uncertain.   The Supreme Court's decision in Barlow's, holding for the first time that a warrantless search of a business under the Occupational Safety and Health Act violated the Fourth Amendment, was decided almost a year later.  The body of OSHA inspection warrant law that was then evolving tended, however, to look to the model of the criminal search warrant for guidance on how to proceed.  Yet, criminal search warrants had been ex parte as a rule.  As the Supreme Court noted in Franks v. Delaware, 438 U.S. 154, 169 (1978), "[t]he pre-search proceeding is necessarily ex parte, since the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove evidence."

This practice would seemingly have fit the Occupational Safety and Health Act well, for the Act imposes criminal penalties for giving advance notice of inspections and the Secretary's regulations also forbade such advance notice.  Section 17(f) of the Act, 29 U.S.C. 666(f); 29 C.F.R. 1903.6 (1977).   The language of section 1903.4, the regulation that was critical to the Cerro decision, did not expressly require that adversary process be employed.  As the district court noted in Cerro, the phrase "compulsory process" in the regulation encompasses ex parte warrants.  467 F. Supp. at 875 n.9.  And as the Commission later observed, and the facts of this case suggest, OSHA, as a practical matter often--though by no means always, had sought warrants ex parte.[[5]]   "That the OSHA field staff may frequently have sought inspection warrants ex parte there seems no reason to doubt."  Cerro, 467 F. Supp. at 874.

The holding of Cerro that the original version of section 1903.4 did not authorize OSHA to seek warrants ex parte was compelled not by the language of section 1903.4 or by a universal practice by OSHA of seeking warrants through adversary process, but by passages in the Supreme Court's Barlow's opinion.  The Cerro courts noted that this language, which post-dated the issuance of the warrant here by almost a year, was precipitated by the litigating position of the Solicitor General before the Court.  The Cerro courts viewed that litigating position as having represented to the Supreme Court that section 1903.4 did not permit ex parte warrants.   See 620 F.2d at 976; 467 F. Supp. at 875 n.9.  However, this litigation position did not emerge with clarity until after the warrant in this case was issued. The Solicitor General's brief to the Court in Barlow's did not at all suggest that section 1903.4 required adversary process.  Only a hint of the position came in the Solicitor General's jurisdictional statement, which urged the Court to note probable jurisdiction of the appeal in Barlow's.  Although the jurisdictional statement, which was filed on February 17, 1977, stated in a footnote that "[a]gency regulations currently require the Secretary to obtain a court order authorizing entry if the inspector is initially refused entry," the text on the same page stated that it is "common"--rather than universal--in civil warrant practice to issue a show cause order to the employer before compulsory process is obtained.  Statement of Jurisdiction at 11 & n.13.  The Solicitor General's position before the Court that adversary process was the rule became clear only during oral argument on January 9, 1977, over four months after the warrant in this Penn Steel case was issued.  See Cerro, 620 F.2d at 976-7 n.33 (noting text of oral argument).  In short, we cannot say that the OSHA field officials who sought this warrant would have had sufficient grounds to conclude from the predecisional events in Barlow's that section 1903.4 did not permit warrants to be sought ex parte.  We therefore conclude that the Barlow's decision, as applied by the Cerro courts, did overturn a previously unquestioned and well-grounded practice and that events that preceded the Barlow's decision did not evince disapproval of the common practice of seeking ex parte warrants.[[6]] Accordingly, we do not apply Cerro retroactively here.

B.  Suppression as a Remedy

In any event, if Cerro were applied retroactively, we would not exclude the evidence gathered during the inspection.  In criminal cases, the exclusionary rule is applied only where the benefits of suppression outweigh the cost of preventing the use of relevant evidence in law enforcement proceedings.  United States v. Leon, 104 S.Ct. 3405, 3412-13 (1984).  In this case, we are dealing with an alleged violation of a regulation rather than a Fourth Amendment violation, but we believe that a similar balancing test should be employed.   See Brooks Woolen Co., 85 OSAHRC , 12 BNA OSHC 1233, 1236, 1985 CCH OSHD 27,233, p. 35,151 (Nos. 79-45 and 79-128, 1985) (view of Chairman Buckley), aff'd, 782 F.2d 1066 (1st Cir. 1986).  As the Supreme Court has pointed out, the suppression of illegally obtained evidence in criminal cases produces the benefit that it deters law enforcement officers from engaging in misconduct in the future when they are aware that the fruits of such misconduct will not be admissible. Leon, 104 S.Ct. at 3418.   It is similarly desirable to deter OSHA compliance officers from obtaining evidence by illegal means. Brooks Woolen, 12 BNA OSHC at 1236, 1985 CCH OSHD at p. 35,151 (view of Chairman Buckley).

The alleged misconduct here is that OSHA obtained a warrant ex parte.  When OSHA did so, however, it did not engage in any intentional misconduct, but simply implemented a reasonable interpretation of section 1903.4.  As we discussed above, when OSHA applied for the warrant in the ex parte proceeding involved here, OSHA was following one of its normal practices. Moreover, the regulation on its face did not impose a strait-jacket on OSHA, requiring it to seek warrants ex parte or not inspect at all.  Its language did not limit OSHA to seeking "compulsory process" but simply stated that such process is included among the "appropriate action[s]" to be taken "if necessary."  The term "compulsory process," which was not defined in the regulation, does not expressly forbid ex parte warrants.  Also, the Supreme Court had not yet expressed the view that the regulation limited OSHA to adversary proceedings and no federal court had ruled on the question.  From this we conclude that OSHA's Judgment to use an ex parte warrant was not unreasonable in light of the state of the law at the time.[[7]]  Finally, suppression here would have little deterrent value, for in 1980 the Secretary amended section 1903.4 to specifically allow ex parte warrants.  See 45 Fed. Reg. 65916-24 (October 3, 1980).  We therefore do not find that suppression would be an appropriate remedy here.

Commissioner Wall would add that this result would in any event be compelled under Leon.   The OSHA officials who applied for this warrant were obviously proceeding in good faith reliance on the then-accepted practice of obtaining warrants ex parte. Similarly, in executing the warrant, they relied in good faith on the judgment of a neutral and detached judicial officer that the workplace should be inspected.   Commissioner Wall also concludes that in view of Leon, the Commission's holding in Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD 25,360 (No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982), that no good faith exception is available must be overruled.

C.  Due Process

Penn Steel also argues that its due process rights were denied because it was denied an adversary hearing required by section 1903.4.  This is not, however, a case where an individual has reasonably relied on an agency regulation promulgated for his guidance or benefit and has suffered substantially because of a violation of the regulation by the agency.  See United States v. Caceres, 440 U.S. 741, 752-3 (1979).  Here, we are not convinced that Penn Steel reasonably relied on receiving an adversary hearing when the Secretary applied for the warrant.   As we discussed above, when the Secretary obtained the warrant in 1977 there was no judicial interpretation of section 1903.4.  There were only the plain words of the regulation that the Secretary take "appropriate action, including compulsory process, if necessary."  This language is subject to several reasonable interpretations.  As the district court pointed out in Cerro, 467 F. Supp. at 875 n.9, "[o]f course, the term 'compulsory process' does not have to connote adversary process."  There was also neither a statute nor a constitutional provision requiring an adversary hearing in a warrant proceeding.  See Caceres, 440 U.S. at 744.  It is difficult to see, then, how Penn Steel relied on receiving an adversary hearing in 1977 on the question of the validity of the warrant.  That Penn Steel never truly expected to receive such an adversary hearing is strongly indicated by the fact that Penn Steel never contested the ex parte nature of the warrant until its motion for summary judgment nearly two years after issuance of the warrant, after the Supreme Court in Barlow's and the District Court for Eastern Pennsylvania in Cerro had placed a judicial gloss on section 1903.4.  Since Penn Steel could not have reasonably relied and most likely did not rely on receiving an adversary hearing when the Secretary applied for the warrant, we find that there was no violation of Penn Steel's due process rights.

D.  Probable Cause; Scope of Warrant

Penn Steel argues that the warrant was not based on probable cause because it was not based on a general administrative plan for enforcement derived from neutral sources, as required by Barlow's.

Chairman Buckley believes that the Commission is without authority to consider Penn Steel's arguments.  The Chairman would hold that, because the Commission is an administrative agency within the executive branch of the federal government, it cannot perform functions committed to the judicial branch and therefore cannot review a federal magistrate's decisions about probable cause for or other legal authority underlying a warrant.  E.g., Phoenix Forging Co., 85 OSAHRC ______, 12 BNA OSHC 1317, 1319 1985 CCH OSHD 27,256 (No. 82-398, 1985) (view of Chairman Buckley).[[8]]  See Babcock & Wilcox v. Marshall, 610 F.2d 1128, 1136-37 (3d Cir. 1979) (the Commission cannot "sit in direct review of the decision of the magistrate"); Baldwin Metals Co. v. Donovan, 642 F.2d 768 (5th Cir. 1981).  See also Muskrat v. United States, 219 U.S. 346, 353 (1911) (no executive officer can be "authorized to sit as a court of errors on the judicial acts or opinions of [an Article III] court.").  Accordingly, Chairman Buckley believes the Commission cannot consider any of Penn Steel's arguments requesting review of the magistrate's judgments about the sufficiency of the probable cause basis for the warrant, the sufficiency of OSHA's affidavit citing facts and legal authorities for the warrant, or the existence of legal authority for any of the particular time or scope provisions of the warrant.  Only a federal court can address these matters.[[9]]

Commissioner Wall would entertain the question of whether there was sufficient probable cause to obtain a warrant to inspect the Penn Steel foundry.  The majority of the courts of appeals that have considered this issue have held that the Commission is a proper forum for the consideration of fourth amendment issues, and that once the statutory Commission review process has been commenced, any objections to the validity of a warrant must be raised before the Commission.[[10]]  In accordance with this authority, the Commission in Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD 25,360 (No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982), held that an OSHA warrant was overbroad in scope.  The Eleventh Circuit expressly affirmed the Commission's decision, ruling that the Commission should review the magistrate's determination of probable cause in connection with admitting or excluding evidence in its own proceeding:

[R]eview by OSHRC does not directly affect the substance of the magistrate's determination.  As explained by the Third Circuit in Babcock & Wilcox Co.,

The Article III objections stressed by Babcock similarly mischaracterize the process.  The Review Commission will not sit in direct review of the decision of the magistrate.  As already indicated, the decision to issue the inspection warrant is complete and cannot be negated.  If the challenge is raised by Babcock, the problem for the Review Commission will be whether to use the evidence obtained from the inspection.  In deciding whether to use the evidence the Review Commission must of course, make its own judgment as to the propriety of the warrant, but such a determination does not reverse the magistrate's action, nor does it contravene a judicial order.  The OSHA official would not be in contempt if he were to decide not to execute a warrant signed by the magistrate, and an administrative tribunal does not flout the authority of the judiciary by refusing to consider evidence that has been obtained pursuant to a warrant issued by a judge or magistrate.

693 F.2d at 1066.

In Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871, 876 (3d Cir. 1979), the Third Circuit stated that "[c]onceding, arguendo that an administrative agency is not ordinarily considered the appropriate forum for the resolution of constitutional claims, we think there are compelling reasons for insisting that fourth amendment claims for the suppression of evidence in OSHA enforcement cases be tendered first to the Commission."  Because the courts have so clearly directed that constitutional challenges to OSHA warrants should be ruled on by the Commission, Commissioner Wall would consider whether warrants of a particular scope should have issued.

After examining the application for the warrant, Commissioner Wall would find that there was sufficient probable cause to allow the inspection.  In Barlow's, the Supreme Court held that probable cause for an OSHA inspection could be based on evidence of an existing violation or on the showing that:

"reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment].'  Camara v. Municipal Court, 387 U.S. [523], at 538, 87 S.Ct. [1727], at 1736, 18 L.Ed.2d 930 [(1967)].  A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser division of the area, would protect an employer's Fourth Amendment Rights."

Barlow's, 436 U.S. at 320-21 (emphasis added).

Here, the application for the warrant stated that the inspection was a follow-up inspection "to determine the validity of [Penn Steel's] claimed inability to comply with safety and health requirements and to conduct the inspection pursuant to OSHA's National Emphasis Program for Foundries."[[11]]   A plan similar to the Foundry NEP has been found to be the type of general administrative plan envisioned by Barlow's.  In In re-Establishment Inspection of Gilbert & Bennett Mfg. Co., 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S. 884 (1979), the court found that an inspection made under a warrant obtained on the basis of "a National-Local plan" for foundries was supported by probable cause.  The court stated:

. . . the instant warrant was plainly supported by probable cause in the Camara/Barlow's sense since Chromalloy was selected for inspection not as the result of the "unbridled discretion" of a field agent, but rather, pursuant to "a National-Local plan" designed by agency officials for the purpose of reducing the high incidence of occupational injuries and illnesses found in the metal-working and foundry industry.

Commissioner Wall believes the same reasoning applies to the application for the warrant in this case.  The Foundry NEP, like the "National-Local plan" in Gilbert & Bennett is the kind of general administrative plan envisioned by Barlow's and as such supplies sufficient probable cause for the administrative inspection in this case.

Penn Steel argues, however, that In re Establishment Inspection of Urick Property, 472 F. Supp. 1193 (W.D. Pa. 1979), requires a different result.  In Urick, an inspection warrant was sought under the Foundry NEP.  The warrant was quashed because the warrant application stated that only one foundry inspection would be conducted in a 17-county area containing at least 11 foundries, but the application did not explain why the Urick Foundry was chosen.  The district court therefore could find no rational basis for the selection of the foundry in Urick.

Commissioner Wall disagrees with Penn Steel that Urick requires a finding that the warrant should not have been issued.  The warrant here stated a rational basis for choosing Penn Steel.  The warrant application recited that in 1974, Penn Steel withdrew its contest of a citation alleging employee exposure to excessive levels of silica dust and iron oxide fumes, and the exposure of employees to toxic materials in their lunch room.  In 1974, a follow-up inspection resulted in two more citations:  one alleged a "repeated" violation of the silica dust standard at various locations; another alleged employee exposure to excessive sound levels in two foundries and one shop; another item alleged exposure to excessive levels of inert or nuisance dust and a mixture of air contaminants consisting of copper fume, chromium fume, nickel fume and iron oxide fume.  Penn Steel withdrew its contest of these citations also after representing to the Commission's administrative law judge that the violations had already been abated or would be abated.   After six months, however, Penn Steel claimed in a letter to OSHA that it could not implement controls for dust and noise.  About three months later, an inspection team proceeding under the Foundry NEP was refused entry into the Penn Steel foundry and a warrant was issued.

Unlike Urick, Penn Steel's history of previous violations, and its claim that it could not abate, coupled with an emphasis on foundry inspections under the Foundry NEP, furnished the magistrate ample cause to authorize an inspection of the entire foundry.  What appears from the warrant is that this foundry may have been a dangerous place of employment at the time the warrant was sought and that Penn Steel's reluctance to implement controls was continuing.  Unlike the record in Urick, the record here does not show that OSHA officials had decided that only one inspection in a large geographical area should be conducted.

In any event, Commissioner Wall would hold under Leon that OSHA sought the warrant in good faith and executed it in good faith reliance on the judgment of the magistrate.

E.  Scope of Inspection

Penn Steel also argues that the inspection exceeded the scope of the warrant.  Chairman Buckley joins with Commissioner Wall in addressing this argument because it calls into question OSHA's conduct, not that of the magistrate.  Penn Steel contends that the inspection of the woodworking machinery in the pattern shop of the foundry was not authorized by the warrant.  Penn Steel argues that the assembly, repair, and cleaning of patterns, which the inspection covered, were not a part of the foundry operations that the warrant authorized OSHA to inspect.

The warrant application that OSHA submitted to the magistrate discussed the Foundry NEP and stated that OSHA was seeking this inspection under that program.  The warrant stated that OSHA compliance officers were "authorized to enter the...premises...to inspect and investigate in a reasonable manner and to a reasonable extent, in accordance with the guidelines set forth in the [Foundry NEP]..." When OSHA conducted the inspection under this warrant, the compliance officers inspected a number of different departments and areas, including the pattern shop.  The citations that were subsequently issued included items alleging violations in this area.  Among other things, the allegations concerned unguarded or improperly guarded woodworking machinery. This machinery was used to make, repair, and maintain the wooden patterns for the molds used to make the castings.

Penn Steel contends that the fabrication and care of patterns is not a foundry operation covered by the Foundry NEP.  In support of this contention, Penn Steel does not rely on the Foundry NEP directly but on an OSHA program directive stating "the compliance policy, requirements, procedures, and instructions to be followed...for implementing the [Foundry NEP]...." OSHA Program Directive #200-56, Changes 1 and 2, 1 (1977).  The program directive specifies that one main tool in the Foundry NEP for significantly reducing foundry injuries and illnesses will be "compliance monitoring," which will consist of initial inspections followed by scheduled monitoring inspections to assure abatement of hazards.  For the purpose of this program, the program directive defines "foundry" as "a building, establishment or works where metal castings are produced."  The term "casting" is defined as a "metal object cast to required shape by pouring or otherwise injecting liquid metal into a mold, as distinct from one shaped by a mechanical process."  In addition, there is a specific definition of "production area" which is repeated in an attachment, part of the program directive, as a definition of the operations to be covered in the initial inspection under the Foundry NEP.  The language of this critical definition is as follows:

[T]hose portions of a plant beginning with the receipt of raw materials, continuing with foundry processes, and terminating with the cleaning, finishing and shipping of the cast parts.  Assembly of other parts to fabricate a final product is not included.

Id. at 1-2, I-V-3 (emphasis added).   Penn Steel asserts that the assembly and use of patterns is "[a]ssembly of other parts to fabricate a final product" and that, therefore, under this definition the operations pertaining to building and maintaining the patterns are not part of the foundry operations covered by the NEP.  In Penn Steel's view, because the warrant authorized an inspection only in accordance with the Foundry NEP, inspection of the pattern operations was improper.

The program directive does not specify exactly what is meant by the language on which Penn Steel relies.  We have therefore examined the program directive and the various attachments to the directive and have concluded that the pattern shop is indeed covered by the Foundry NEP.  In several places the directive and its attachments specifically address problems in pattern shops.  In an attachment about industrial hygiene and occupational health, there is a "Guideline of Air Contaminants 'Normally' Found in Foundry Operations."  One of the operation areas to which the guideline refers is the "Pattern Shop Area."  The air contaminants listed include wood dust, solvents, plasticizers, and wood preservatives.   Id. at I-XIII-1, 13-14.  In an appendix relating to identification of violations in foundry operations, the OSHA standards governing hazards presented by woodworking machinery are extensively described and, in the section of this appendix identifying health hazards and related standards by foundry area and employees exposed, there is a page pertaining to the pattern shop and pattern-makers.  Id. at II-1, 72-77, 136.  Also, there are forms in the final appendix explicitly requiring information about pattern shops.  Id. at IV-1, 12, 18, 47.  All of this shows that pattern shops were covered by the Foundry NEP and therefore by the inspection warrant.

III.  The Settlement Agreement

Penn Steel argues that it should be allowed to withdraw from the settlement of the 240 unlitigated items it entered into with the Secretary and the United Steelworkers of America.  Penn Steel claims, in its brief to the Commission, that, because the court in Marshall v. Sun Petroleum Products, Inc., 622 F.2d 1176 (3d Cir.), cert. denied, 449 U.S. 1061 (1980), held that the Secretary can withdraw from a settlement agreement at any time, "[f]airness and justice require that other parties have the same right."  Penn Steel also maintains that if the Commission alters any of Judge Chalk's dispositions of the 58 litigated items, the settlement is void.  Penn Steel also submits that the participation of the Union in the settlement negotiations was improper.

The Secretary and the Union argue that the settlement is not before the Commission.  First, they argue that the settlement is final by operation of law because Penn Steel did not petition for review of the settlement agreement and the Commission did not direct the issue of the settlement for review.   Second, they argue that the settlement is, by its own terms, final.

We held in Hamilton Die Cast, Inc., 86 OSAHRC ________, 12 BNA OSHC 1797, 1986 CCH OSHD 27,576 (No. 83-308, 1986), that when the Commission directs any portion of a judge's report for review, the entire judge's report is before the Commission, unless the judge's disposition of a citation item is specifically severed and made a final order under Federal Rule of Civil Procedure 54(b).   Although some specific citation items were mentioned in the directions for review, the entire case, including the items covered by the settlement agreement, came before the Commission.  Therefore, the items covered by the settlement agreement did not become final merely because they were not mentioned in the direction for review.  Finally, although the Union had moved for severance of the items covered by the settlement agreement after Penn Steel had argued that the items were not yet final, the Commission deferred voting on the motion until it resolved the finality issue; thus, the items covered in the settlement have not been severed under Fed. R. Civ. P. 54(b).

We also conclude that the settlement agreement has not become final by its own terms.  In the first paragraph the agreement states:

With respect to the citation items covered in the preliminary decision of Judge Joseph L. Chalk dated June 27, 1980, the parties agree that the disposition set forth therein shall take effect.  The preliminary decision will become effective on the date this stipulation becomes a final order of the Commission.

(Emphasis added.)  The Secretary and the Union argue that the term "a final order of the Commission" means the date on which Judge Chalk's preliminary decision became his final decision.  Thus, the Secretary and the Union claim that settlement became final when Judge Chalk incorporated the settlement in his final decision, issued June 23, 1981.

We cannot agree with the Secretary's and the Union's interpretation of the settlement agreement.  Under section 12(j) of the Act, a report of an administrative law judge becomes "a final order of the Commission" only if no Commissioner directs the case for review.  Moreover, for the reasons set forth in Hamilton Die Cast, if a Commissioner directs review of the judge's report, there is no final order of the Commission until the Commission issues a decision in the case.  Accordingly, this settlement is not final by its own terms.

Furthermore, the conduct of Penn Steel, the Secretary and the Union subsequent to the settlement indicates that they did not consider the agreement to be final.  Several sections of the agreement spell out the future duties of the parties.  For example, paragraph 3(g) states that,

During the duration of this agreement, [Penn Steel] will furnish Complainant, through its Harrisburg area director, semi-annual reports describing its progress in obtaining compliance with the foregoing.  A copy of each such report will be mailed to Mary-Win O'Brien, Esq., United Steelworkers of America, Five Gateway Center, Pittsburgh, Pennsylvania 15222.

Also, paragraph 6 provides,

In view of the fact that the costs to [Penn Steel] of accomplishing abatement as set forth herein will exceed the $78,300 amount of proposed penalties, all penalty proposals will be withdrawn and, in lieu thereof, there shall be assessed a single total penalty of $5,000.  One-half of this amount shall be paid within 10 days of the date this stipulation becomes a final order and the remainder shall be paid within 12 months thereafter.

It appears from presentations of counsel at the oral argument that Penn Steel never submitted the reports required under paragraph 3(g) nor did Penn Steel pay the penalty required under paragraph 6.  Despite these omissions by Penn Steel, neither the Secretary nor the Union moved to enforce the terms of the settlement agreement.  At oral argument, counsel for the Union claimed that this was simply an oversight.  However, the failures of both the Secretary and the Union to enforce the settlement agreement also suggests that the Secretary and the Union were awaiting a subsequent event, namely, a final order of the Review Commission. Moreover, the union's motion to sever the settlement agreement, made after Penn Steel moved to withdraw, shows implicit recognition that the settlement agreement would not become final unless severed.  In view of this and because Penn Steel's agreement to the settlement was certainly founded on its view that the finality of the settlement would be postponed, we will also not consider that the settlement agreement has yet become final.

Although we do not believe the settlement is final, the question still remains whether Penn Steel should be allowed to withdraw from the settlement agreement.  Penn Steel claims that it should be allowed to withdraw from the agreement because the Secretary can withdraw from a settlement agreement at any time before final Commission action.  See Marshall v. Sun Petroleum, 622 F.2d at 1187.  However, the court in Sun Petroleum was careful to point out that if the Secretary withdrew from a settlement agreement the parties were to be placed "in the position of status quo ante the issuance of the citation."   This, according to the court, would mean that "neither the employer nor any affected employees will be prejudiced by the unilateral action of the Secretary."   Sun Petroleum, 622 F.2d at 1187.

Clearly, the parties could not return to the status quo ante if Penn Steel was allowed to withdraw from the settlement at this late date.  Rather the Secretary would be severely prejudiced and Penn Steel would benefit greatly from its unilateral withdrawal from the settlement agreement.  Penn Steel's motion for withdrawal comes after extensive proceedings, both in terms of the time consumed and the record created.  The hearing on the merits of the citation items not covered by the settlement agreement took place long ago, in late 1978 and early 1979, and the hearings lasted for more than a week.  The two hundred and forty items that were not tried would need to be tried.  This would put the Secretary between Scylla and Charybdis.  He could prosecute the citations but on the basis of stale evidence.   The alternative would be more onerous.  The Secretary could reinspect and issue new citations, but at the cost in time and resources of reinspecting all of the work areas and conditions covered in the original 240 items. Although Penn Steel may have made alterations to bring conditions into compliance with OSHA standards, the Secretary would have been deprived of much of his power to encourage timely compliance by seeking civil penalties for violations discovered at the time of the original inspection.   Such a choice would undermine the purpose of the civil penalty scheme that Congress established and the Commission's efforts to encourage settlement of disputes among the parties.  See Consolidated Edison Co., 81 OSAHRC 9/B2, 9 BNA OSHC 1267, 1981 CCH OSHD 25,165 (No. 80-1252, 1981); Commission Rule 100, 29 C.F.R. 2200.100(a). Finally, we consider it relevant that Penn Steel has attempted to withdraw from the settlement at a very late stage of this litigation: the point was raised in its review brief.  This came, as the settlement says, after "lengthy negotiations and litigation that has lasted for a period of 3 years."  We decline the invitation to render for nought all this hard work by the parties.  To encourage settlements and to avoid irreparable harm to the Secretary's interests, the motion for withdrawal is denied.[[12]]

Penn Steel also claims that if the Commission changes any of Judge Chalk's dispositions of the 58 litigated items, the settlement agreement as to the 240 unlitigated items is void.  While this argument appears frivolous at first glance, it is not entirely so.  The settlement agreement that the parties entered into came after Judge Chalk rendered a preliminary decision on the 58 unsettled items. A very lengthy stay then ensued.  The parties later prepared a settlement agreement resolving the 240 unlitigated items; as to the litigated items, it stated that "[w]ith respect to the citation items covered in the preliminary decision of Judge . . . Chalk . . . the parties agree that the disposition set forth therein shall take effect."  It could therefore be argued that the parties effectively made the preliminary dispositions by Judge Chalk their final consensual disposition--that the 58 items were settled by the parties rather than by Judge Chalk.

The problems with this argument are that it is contrary to another provision of the settlement agreement and that it seems not to have been the intention of any of the parties or the understanding of Judge Chalk.  The same paragraph of the settlement that contains the language above also states that "[b]oth parties reserve their rights under [section 11 of the Act] 29 U.S.C. 660 and the applicable Review Commission Rules of Procedure to petition for review of that [preliminary] decision."  Judge Chalk expressly noted this provision in his final decision, declaring that both parties could seek review of his dispositions of the 58 items.  And indeed both the Secretary and Penn Steel did petition the Commission for discretionary review of some of those litigated items.  We therefore conclude, in view of the language of the settlement as a whole, the understanding of Judge Chalk and the conduct, of the parties, that the phrase "the disposition set forth therein" merely reflected the parties' intention that Judge Chalk's stay of the proceedings pending settlement discussions would finally end and that his preliminary decision could now be incorporated in a final decision.

Finally, Penn Steel claims that the participation of the Union "tainted" the settlement agreement.  Penn Steel evidently believes that the Union's participation caused it to agree to a settlement to which it would not have otherwise agreed.   However, Penn Steel has presented no evidence on how the Union's participation affected the settlement process, nor can we fathom how the Union's participation would have affected the settlement talks in the way Penn Steel claims.  Therefore, we will not overturn the settlement agreement based on this unsupported claim.

IV.  The Citation Items

We now turn to the consideration of the citation items that were directed for review.

Items 45(g) and (h):  29 C.F.R. 1910.212(a)(1), Swing Grinders

Items 45(g) and (h) allege that Penn Steel violated section 1910.212(a)(1), a generally applicable machine guarding standard, by failing to guard the wheels of two swing grinders.  The two grinders had guards over the top halves of the grinding wheels.  The compliance officer was concerned that chips of castings or pieces of the wheels could fly back at the operators because the guards did not extend downward over the backs of the wheels.  Judge Chalk vacated the item on the basis that the Secretary's evidence of employee exposure was inadequate.   The Secretary argues on review that the judge erred.  We do not reach this or any other issue because we conclude that section 1910.212(a)(1) is preempted with respect to these grinders.

Section 1910.212(a)(1) provides:

1910.212 General requirements for all machines.

(a) Machine guarding--(1) Types of guarding.  One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip-points, rotating parts, flying chips and sparks.   Examples of guarding methods are--barrier guards, two-hand tripping devices, electronic safety devices, etc.

This standard is generally applicable to all machines.  There are, however, other standards that are specifically applicable to certain machines.  See 29 C.F.R. 1910.213-1910.219.  Among these latter particular standards, there is a standard for swing frame grinders that requires the grinders to have guards enclosing the top half of the wheel.  See 29 C.F.R. 1910.215(b)(2) and (6). Section 1910.215(b)(6) states:

1910.215 Abrasive wheel machinery.
* * *
(b) Guarding of abrasive wheel machinery.
* * *

(6) Swing frame grinders.  The maximum angular exposure of the grinding wheel periphery and sides for safety guards used on machines known as swing frame grinding machines shall not exceed 180, and the top half of the wheel shall be enclosed at all times.  (See Figures 0-14 and 0-15.)

The two figures to which the section refers show a rounded guard and a squared-off guard, each covering the top half of the grinding wheel.   Up to 180 degrees of the bottom halves of the grinding wheels are shown open.

Where "a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable . . . . " 29 C.F.R. 1910.5(c)(1).  Because section 1910.215(b)(6) fully addresses the matter of guarding a wheel of a swing frame grinder, specifying where the guard must be installed and how much of the wheel may remain open, it applies to the condition with which the Secretary is concerned in this case. Accordingly, section 1910.215(b)(6) prevails over the more general standard, section 1910.212(a)(1).  See, e.g., Vicon Corp., 81 OSAHRC 98/C4, 10 BNA OSHC 1153, 1156, 1981 CCH OSHD 25,749, pp. 32,158-59 (No. 78-2923, 1981), aff'd, 691 F.2d 503 (8th Cir. 1982); General Supply Co., 77 OSAHRC 16/A2, 4 BNA OSHC 2039, 1040-41, 1976-77 CCH OSHD 21,503, p. 25,806 (No. 11752, 1977).[[13]]

We have considered whether the citation should be amended to allege a violation of section 1910.215(b)(6).  Under Rule 15(b) of the Federal Rules of Civil Procedure, pleadings may be amended to conform to the evidence when an issue not raised by the pleadings has been tried by the express or implied consent of the parties.  Here, the record is very limited.  During the proceedings, the parties referred neither to the particular standard nor to requirements in the nature of those stated in that standard.  The parties did not focus on whether the guards which Penn Steel had installed on the two grinders covered the top half of the wheels and whether the open portions of the wheels constituted more than one-half of the total circumference.  Instead, the parties tried only the general issue framed by the general standard--whether the operator was exposed to a hazard of rotating parts or flying chips during the operations.  They did not understand that a violation of section 1910.215(b)(6) was at issue.  Under these circumstances, it is inappropriate to amend the citation under Rule 15(b). See Nu-Way Mobile Home Manufacturing, Inc., 86 OSAHRC __, 12 BNA OSHC 1670, 1671, 1986 CCH OSHD 27,489, p. 35,624 (No. 80-7082, 1986); McWilliams Forge Co., 84 OSAHRC ____, 11 BNA OSHC 2128, 2129-30, 1984 CCH OSHD 26,979, p. 34,669 (No. 80-5868, 1984).  Therefore, citation items 45(g) and (h) are vacated.

Item 46(a):  Section 1910.212(a)(3)(ii), Cut-off Wheel

Citation item 46(a) alleges that Penn Steel violated 29 C.F.R.

1910.212(a)(3)(ii) by failing to guard the blade of a 16-inch table cut-off wheel or saw which was used to trim excess material from castings.[[14]]  There is no doubt that the standard was violated.[[15]] At the hearing, however, the question arose whether compliance with the standard was infeasible.

The compliance officer stated that, while "some type of guarding for this kind of cutoff wheel" is available, using this guarding "can present some problems with the different configurations in the castings."  The compliance officer, who observed an employee feeding a casting into the blade, also testified that the "best way" to protect the employee would be to construct and install a clamp to hold the castings.  Relying on this testimony, the judge vacated the citation item and stated that the compliance officer's testimony was "a concession that the type of guarding contemplated by the standard was impossible."  The judge reasoned that the proposed clamps did not satisfy the standard because they did not physically prevent the operator from having a part of his body in the blade of the saw, and that the type of guarding that did prevent the operator from touching the blade could not be used.

The Secretary argues that Penn Steel failed to establish that guarding the cited machine was "impossible."  The Secretary contends that showing that guarding the machine would be difficult is not enough to show impossibility.  Also, the evidence revealed that clamps could be used as an alternative means of protection.

In Dun-Par Engineered Form Co., 86 OSAHRC ___, 12 BNA OSHC __, 1986 CCH OSHD (No. 79-2553, 1986), the Commission substantially altered the "impossibility" defense.  Under Dun-Par, the burden of persuasion is upon the employer to establish that compliance with the cited standard was "infeasible" as opposed to "impossible."  Also, the burden of persuasion was placed with the Secretary to establish that a feasible means of protection not required by the standard was available but that the employer failed to use it.

We agree with the Secretary that Penn Steel did not carry its burden of proving that compliance was infeasible.  The testimony of the compliance officer shows, at best, that during some operations, the use of a guard would be infeasible.  However, the record does not show that compliance would be infeasible during all cutting operations.  In any event, the record satisfies the Secretary's burden of showing that feasible alternative means of protection exist.  The compliance officer testified that clamps could be used to hold down the workpiece so that the employee's hands could be kept away from the saw.  Because we find that clamps could feasibly be used when guarding is infeasible, we reject Penn Steel's defense and affirm item 46(a).

Item 53(a):  Section 1910.215(a)(2), Grinding Wheel Spindle

A different issue is presented by the remaining items which, like item 53(a), involve unguarded machines.  The issue is whether the Secretary presented sufficient evidence to establish that Penn Steel employees had access to the violative conditions.  To establish employee access, the Secretary must demonstrate a reasonable predictability that, in the course of their duties, employees will be, are,  or have been in the zone of danger.  Clement Food Co., 84 OSAHRC 128/B10, 11 BNA OSHC 2120, 2123, 1984 CCH OSHD 26,972, p. 34,633 (No. 80-607, 1984), citing Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD 20,448, p. 24,425 (No. 504, 1976).  Where the danger is created by defective equipment, such as unguarded machines, the Secretary may satisfy this burden of proof by demonstrating that the defective equipment was "available for use"--specifically, that the defective equipment was located where employees could gain access to it and use it in the course of their normal duties.  See, e.g., Bechtel Power Co., 79 OSAHRC 34/A2, 7 BNA OSHC 1361, 1366, 1979 CCH OSHD 23,575, p. 28,577 (No. 13832, 1979); Marinas of the Future, Inc., 77 OSAHRC 201/B1, 6 BNA OSHC 1120, 1122-23, 1977-78 CCH OSHD 22,406, p. 27,011 (No. 13507, 1977); Mayfair Construction Co., 77 OSAHRC 178/A14, 5 BNA OSHC 1877, 1881, 1977-78 CCH OSHC 22,214, p. 26,732 (No. 2171, 1977); Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 2004, 1975-76 CCH OSHD 20,448 p. 24,425.  The nature of the proof will vary depending on the particular type of defective equipment involved and circumstances at the particular worksite, but, in general, it will not be enough for the Secretary to establish simply that the defective piece of equipment was at the worksite.   There must be sufficient evidence about the precise location of the defective equipment and specific duties of employees likely to involve use of such equipment at the particular location to show that some use of the equipment in its defective condition at or around the time of the alleged violation was indeed reasonably predictable.

With respect to item 53(a), the compliance officer observed a grinder that did not have a guard for the wheel spindle or nut.   The Secretary alleged that Penn Steel violated 29 C.F.R. 1910.215(a)(2).[[16]]   The judge affirmed the citation.  The compliance officer did not describe where this grinder was located nor did he see the grinder in use.  However, Mr. George Hartman, Penn Steel's safety director who accompanied the compliance officer during the inspection, told the compliance officer that the grinder "was used for odd shaped castings."  On the basis of the compliance officer's uncontroverted testimony concerning Mr. Hartman's admission, we affirm the judge's decision that the Secretary established the accessibility of this grinder.  Item 53(a) is therefore affirmed.

Items 63a(a) & (b):  Section 1910.243(c)(3), Portable Grinders.

With respect to items 63a(a) and (b), the compliance officer observed a series of vertical portable grinders without guards in the back bay of the cleaning department.  The Secretary alleged that Penn Steel violated 29 C.F.R. 1910.243(c)(3)[[17]] because none of the grinders were guarded.  The compliance officer did not see either of the two grinders in use, but, with respect to the grinder involved in sub-item 63a(a), the compliance officer stated that he saw "a number of grinders being used in the area" of it and that the grinding wheel of the particular grinder "was somewhat worn down."  With respect to the grinder involved in sub-item 63a(b), the compliance officer stated that this grinder was "laying on a work bench in the area where they're chipping and grinding." The judge affirmed both of these items.  We affirm his decision in view of this evidence that the grinders were located in an area where similar grinders were used for grinding and chipping work, and therefore, that they were "available for use" by Penn Steel employees.  Items 63a(a) and 63a(b) are affirmed.

Item 50: Section 1910.213(j)(4), Jointer.

Citation item 50 alleged that a hand-fed jointer in the woodworking area of the shop lacked a suitable guard as required by 29 C.F.R. 1910.213 (j)(4).[[18]]  The compliance officer did not see anyone using the jointer.   The compliance officer testified that he noted on his work sheet that the jointer was used daily.  However, the compliance officer testified that he could not recall who told him that.  In addition, although the compliance officer had noted the name of an employee with whom he spoke during the inspection, the compliance officer could not describe this employee's position or work.  Therefore, there was no evidence that the employee would know about the usual operations involving the jointer, or that the employee even worked in the pattern shop.  The record generally indicates that different machines were used for different operations or materials and the compliance officer did not provide any reliable information about the duties of employees likely to involve the use of the unguarded jointer in the pattern shop around the time of the alleged violation.   Accordingly, Chairman Buckley concludes that the Secretary has not established a reasonable predictability that Penn Steel employees had access to the cited jointer.   He therefore joins with Commissioner Rader--whose views are stated in his separate opinion--in vacating item 50.

Commissioner Wall would, however, find the evidence was sufficient to affirm the judge's finding that Penn Steel employees had access to the unguarded jointer.  The judge found that "the jointer was accessible in its violative condition for use by an employee." Commissioner Wall observes that the compliance officer's notes included the name and address of a Penn Steel employee.    Although the compliance officer could not testify for certain, it is more likely than not that the employee whose name and address was in the compliance officer's notes was the employee who told him that the jointer was used daily.  In addition, the compliance officer testified that the inspection followed the normal route of the foundry process.  Therefore, the jointer was in a place where work was normally performed and was easily accessible for use by Penn Steel employees.

Item 53(e):  Section 1910.215(a)(2), Grinder

Citation item 53(e) involves the same type of grinder as item 53(a).  Because the grinder was not guarded, the Secretary cited Penn Steel under 29 C.F.R. 1910.215(a)(2).[[19]]  Chairman Buckley joins with Commissioner Rader in vacating the item.  Chairman Buckley would note that unlike citation item 53(a), there was no evidence about where the grinder cited in item 53(e) was located or that the grinder was used by Penn Steel employees.  Therefore, Chairman Buckley finds that the Secretary did not establish that the Penn Steel employees had access to the cited machine.

Commissioner Wall would affirm the citation item.  The administrative law judge found that the grinder was located in a work area and accessible to Penn Steel employees.   Commissioner Wall would defer to the administrative law judge on this finding of fact.

The judge assessed an aggregated penalty of $5,000, the amount that the parties specified in their settlement agreement.  We affirm this assessment.

Order
Accordingly, we affirm Judge Chalk's order entering judgment in accordance with the settlement agreement on the 240 unlitigated items. We also affirm his decision as to some of the litigated citation items but reverse as to others. Items 45(g), 45(h), 50 and 53(e) are vacated. Items 46(a). 53(a), 63a(a) and 63a(b) are affirmed. We also affirm the judge's assessment of a $5000 penalty.

BY THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  AUG 27 1986


RADER, Commission, dissenting:

I agree with Commissioner Wall that the Commission is required to consider Penn Steel's constitutional objections to the probable cause showing by the Secretary for the inspection warrant.  I dissent from the majority's decision because in my view the warrant was not supported by adequate probable cause and was overbroad.  Consistent with my opinion in Synkote Paint Co., OSHRC Docket No. 83-0002 (August 27, 1986), I would suppress the evidence obtained under the warrant.

As Commissioner Wall correctly points out, numerous courts of appeals have directed the Commission to rule on challenges to the probable cause showing for an inspection warrant once statutory review proceedings have commenced.  The courts have not stated that any challenges to the validity of a warrant are to be raised before the Commission merely to be preserved for appellate review pending the development of a factual record by the Commission.  Rather, the case law now clearly holds that such challenges are not only to be raised but are also to be heard and resolved before the Commission.  Smith Steel Casting Co. v. Donovan, 725 F.2d 1032, 1036 (5th Cir. 1984); Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1066 (11th Cir. 1982); Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d Cir. 1979).

Consideration of the sufficiency of the probable cause for the warrant in this case must begin with Marshall v. Barlow's Inc., 436 U.S. 307 (1978) [[1]]  In Barlow's the Supreme Court held that OSHA may obtain a warrant by showing (1) specific evidence of an existing violation, or (2) that "reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular establishment."  436 U.S. at 320.

The affidavit for the warrant at issue here asserts two grounds for an inspection of Penn Steel's facility.  The first asserted ground is the need to conduct a follow-up inspection to verify the validity of Penn Steel's claim that it could not feasibly abate prior violations for excessive noise, silica dust, and nuisance dust.  This portion of the affidavit is sufficient under Barlow's to establish probable cause to conduct an inspection based on specific evidence of an existing violation.  Pelton Casteel, Inc. v. Marshall, 588 F.2d 1182 (7th Cir. 1978).  Had the warrant and ensuing inspection been limited to matters pertaining to noise and dust, they would pass constitutional muster.  See my opinion in Synkote Paint, supra (warrant must be properly tailored to the probable cause showing for its issuance).  However, the warrant authorized, and the Secretary conducted, a general or wall-to-wall inspection of the entirety of Penn Steel's premises.  In this respect the warrant was clearly overbroad in scope because there was no probable cause shown for a general inspection of Penn Steel's premises.  Barlow's and its progeny require that an application for a warrant based on a general administrative plan for the enforcement of the Act must demonstrate both that a reasonable legislative or administrative inspection program exists and that rational and neutral criteria were used to select the particular employer for an inspection under this plan.  In re Establishment Inspection of Northwest Airlines, Inc., 587 F.2d 12, 13-14 (7th Cir. 1978); In re Establishment Inspection of Pfister & Vogel Tanning Co., 493 F. Supp. 351, 354 (E.D. Wis. 1980).  The affidavit for the warrant here simply stated:

The purpose [in addition to the follow-up inspection for conditions previously cited] was . . . to conduct the inspection pursuant to OSHA's National Emphasis Program for Foundries.

. . The National Emphasis Program (hereinafter "NEP") was established in 1976 to reduce hazards in industries reporting a higher than average rate of injuries and illnesses.  The first target industries selected by NEP were iron and steel foundries and aluminum, bronze, brass and copper casting and metal stamping plants.  Foundries reported a 1973 illness and injury rate of 26.6 per 100 workers as compared to the national average of 8.8.

Assuming without deciding that this limited description of the NEP program is sufficient to establish a reasonable administrative plan under Barlow's, supra, the affidavit plainly fails to set forth any basis whatever for the selection of Penn Steel's worksite for an inspection pursuant to the NEP.[[2]]  The affidavit states simply that Penn Steel was selected for an inspection pursuant to the plan; it does not describe the procedure followed in the selection of Penn Steel for a general inspection under the NEP.  Was it by lot? Was it at random?   Was it by design?  If by design, what were the facts underlying the purposeful selection?  The purpose of the warrant requirement is to "guard against arbitrariness."  Brock v. Gretna Machine & Ironworks, 769 F.2d 1110, 1112 (5th Cir. 1985).  Yet absent such information as to Penn Steel's selection under the NEP we cannot determine whether the selection of Penn Steel as opposed to any other foundry for a general inspection under the NEP was "a reasonable exercise of discretion for the area administrator."  In re Establishment Inspection of Urick Property, 472 F. Supp. 1193, 1195 (W.D. Pa. 1979).[[3]]  See Gretna Machine & Ironworks, supra, 769 F.2d at 1112-13, and Marshall v. Weyerhaeuser Co., 456 F. Supp. 474 (D.N.J. 1978).  Cf. Marshall v. Shellcast Corp., 5 BNA OSHC 1689, 1691 (N.D. Ala. 1977), rev'd on other grounds, 592 F.2d 1369 (5th Cir. 1979) (where individualized information is available, nationwide statistics do not establish sufficient probable cause to justify the selection of particular foundries for inspection under the foundry NEP).  Since probable cause for a general inspection under the NEP was not established, the warrant should have been limited in scope to the particular violative conditions for which the Secretary was seeking a follow-up inspection.  Sarasota Concrete, supra, 693 F.2d at 1068-70 (11th Cir. 1982); Marshall v. North American Car Corp., 626 F.2d 320, 324 (3d Cir. 1980); Marshall v. Central Mine Equipment Co., 608 F.2d 719, 720 n.1 (8th Cir. 1979).  See Synkote Paint, supra.

However, that did not happen here.  Instead the Secretary inspected and issued citations consisting of almost 300 separate violations for matters as diverse as failing to instruct employees in how to safely lift heavy objects, failure to properly enclose electrical equipment, and, as the lead opinion points out, failure to properly guard woodworking machinery in the pattern shop.  Quite clearly the Secretary conducted far more than merely a follow-up inspection for noise and dust violations, and his inspection went well beyond any open and obvious hazards that arguably might have been detected during a properly limited follow-up inspection.  Since there was no probable cause for an inspection of such scope, the warrant is invalid for being overbroad.   Consistent with Sarasota Concrete, supra, and my opinion in Synkote Paint, supra, I would suppress the evidence obtained under the invalid warrant.

Commissioner Wall holds that even if there was not probable cause for a general inspection, the "good faith" exception of United States v. Leon, 468 U.S. 897 (1984), applies here to excuse this broad invasion of Penn Steel's privacy.  However, I believe that Leon, a criminal case, is founded on different considerations than exist in an OSHA warrant case and should not be used to justify the incredibly detailed inspection that took place in this case.  The use of evidence in criminal cases is vastly different than in civil cases before the Commission under the Act.  The distinctions are well-stated by Chairman Buckley in Brooks Woolen Co., 85 OSAHRC ___________, 12 BNA OSHC 1233, 1236-37, 1985 CCH OSHD 27,233, pp. 35,151-52 (Nos. 79-45 and 79-128, 1985), aff'd, 782 F.2d 1066 (1st Cir. 1986).   As Chairman Buckley explained, the suppression of evidence normally will defeat the punitive purposes of the criminal law because evidence of a crime, once suppressed, usually cannot be recovered.  Different considerations apply in cases under the Act, however, because the purposes of the Act are not punitive but rather remedial.  Thus, the Act is intended to achieve safe and healthful working conditions through the elimination of recognized hazards and compliance with standards promulgated under the Act.   As Chairman Buckley has accurately stated,

If evidence from an unlawful OSHA inspection is suppressed, the Secretary can seek to obtain similar evidence from a subsequent, valid inspection or by other means.  See section 8(b) of the Act, 29 U.S.C. 657(b) (Secretary has authority to issue subpoenas in investigating possible violations of the Act).  If conditions in the employer's workplace have changed to the extent that evidence of a violation no longer exists, then any violation has ceased to exist, and the Secretary has achieved the result he sought by initiating the enforcement action.  If conditions have not changed, the Secretary can reacquire the evidence by lawful means.   He will have lost some time and resources, but in many cases the lost time and resources will be less than he would expend in litigation arising from questionable inspection practices.  In any event, the cost of suppression is much less than it is in criminal cases.

This distinction between criminal and civil proceedings was emphasized by the Eleventh Circuit in affirming the Commission's refusal to apply a good faith exception in Sarasota Concrete, supraSee 693 F.2d at 1072.  In Sarasota Concrete, 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1613-1614, 1981 CCH OSHD 25,360, pp. 31,532-33 (No. 78-5265, 1981), the Commission applied the exclusionary rule to our proceedings because it creates a clear incentive to the Secretary to conduct OSHA inspections in accordance with the fourth amendment.  I see no reason to disregard our prior decision in Sarasota Concrete, as Chairman Buckley does by refusing to decide these constitutional warrant issues, and as Commissioner Wall does by applying a good faith exception in the present cast.  On the other hand, the effect of the majority's ruling will be to unnecessarily encourage sloppy warrant applications and overbroad OSHA inspections.

Even if the good faith exception did apply to our proceedings, I cannot find the Secretary to have acted in good faith here.   Although the warrant here predates the Supreme Court's decision in Barlow's, the Court had held as far back as Camara v. Municipal Court, 387 U.S. 523, 538 (1967), that in order to establish probable cause for an administrative warrant there must be "reasonable legislative or administrative standards for conducting an area inspection . . . with respect to a particular dwelling."  See In re Establishment Inspection of Northwest Airlines, Inc., 437 F. Supp. 533 (E.D. Wis. 1977), aff'd, 587 F.2d 12 (7th Cir. 1978). By the time the Secretary applied for the warrant in this case a number of courts had specifically applied Camara to OSHA inspection warrants.  See the three-judge district court opinions in Barlow's Inc. v. Usery, 424 F. Supp. 437 (D. Idaho 1976); Dunlop v. Hertzler Enterprises, Inc., 418 F. Supp. 627 (D.N.M. 1976); Brennan v. Gibson's Products, Inc. of Plano, 407 F.Supp. 154 (E.D. Tex. 1976); and the district court opinion in Usery v. Centrif-Air Machine Co., 424 F. Supp. 959 (N.D. Ga. 1977).  Cf. In re the Inspection of Rupp Forge Co., 4 BNA OSHC 1487, 1976-77 CCH OSHD 20,914 (N.D. Ohio 1976) (probable cause standards appropriate to administrative searches apply to inspections under the Act).  Thus, the Secretary should have been aware of the need to demonstrate why he selected Penn Steel for inspection under the NEP.  Similarly, as I observed in Synkote Paint, supra, the principle that a warrant must be properly tailored to the probable cause basis for its issuance is a fundamental rule of fourth amendment law of which we may reasonably expect the Secretary's agents to be aware.   Therefore, in my view the Secretary could not have reasonably believed that the warrant authorizing a general inspection of Penn Steel's worksite was valid.

The underlying basis of the majority's decision is its reluctance to allow Penn Steel to escape the settlement agreement.  I share this reluctance.[[4]]  However, I believe that when the question of the legality of the inspection warrant and the inspection is raised, as it is here, we are required by the precedent I have noted to decide these constitutional issues.  If the warrant or inspection is unconstitutional or otherwise invalid, our obligation to protect the rights guaranteed by the fourth amendment requires that we suppress the evidence obtained during the inspection regardless of our dislike for setting aside the settlement agreement.   See Sarasota Concrete, supra, 9 BNA OSHC at 1615, 1981 CCH OSHD at p. 31,533.

Barlow's, supra, reaffirms that the determination of the reasonableness of a particular OSHA inspection is to be made by the magistrate, not the Secretary.  The application for a warrant must therefore set forth sufficient information to enable the magistrate to make an independent determination of probable cause.  In this case the affidavit should have described how Penn Steel was selected for inspection under the NEP.  Gretna Machine & Ironworks, supra, 769 F.2d at 1114.  The Secretary could easily have described his selection process in the affidavit, if in fact the selection of Penn Steel was done in a neutral manner under the NEP. He has certainly done so in other cases and the burden has not been onerous.   See, e.g., Stoddard Lumber Co., Inc. v. Marshall, 627 F.2d 984, 985 n.2, 988 (9th Cir. 1980) ("detailed explanation" of inspection plan describing how individual employers are selected for inspection); Reynolds Metals Co. v. Marshall, 442 F. Supp. 195 (W.D. Va. 1977).  His failure to do so here contravenes the clear teaching of Barlow's and its progeny.  Accordingly, I would vacate all the citations issued to Penn Steel since those citations arise from an illegal inspection.





SECRETARY OF LABOR,

Complainant,

v.

PENNSYLVANIA STEEL FOUNDRY &
MACHINE COMPANY,

Respondent.

DOCKET NO. 78-0638

APPEARANCES
Michael D. Shapiro, Esq.
For Complainant

Robert D. Moran, Esq.
For Respondent

Mary Win-O'Brien, Esq.
For Employees

FINAL DECISION AND ORDER

Chalk, Judge:

I

This protracted case involves some 300 separate charges (items and subitems), involving four separate hearing sessions dating back to January 1979.  These hearing sessions were interspaced with recesses requested by the parties to enable them to conduct settlement sessions and, on one occasion, to permit me to resolve a renewed motion by Respondent, after receipt of briefs of all parties, to suppress all the evidence in the case after the Commission, on July 17, 1979, reversed its prior decisions that it lacked jurisdiction to adjudicate the validity of search warrants issued by United States District Courts (see Secretary v. Chromalloy American Corp., 79 OSAHRC 55/D11, Docket No. 77-2788).

During one of the hearing sessions convened on December 5, 1979, the parties requested permission to conduct a full hearing limited to 58 of the 300 charges, those they believed they could not settle, expressing their expectation that it would enable them to settle the remainder of the case.   Thereafter, on June 27, 1980, I issued a preliminary or interlocutory decision which served to advise the parties of my future disposition of each of the 58 charges when this final decision and order was issued.  That preliminary decision, attached hereto, is incorporated herein, made a part hereof, and each disposition specified therein will be fully implemented herein.

Although the parties, in the partial settlement agreement they have now filed, have reserved unto themselves the right to seek relief at the Commission and Circuit Court levels from the disposition of those 58 charges specified in the preliminary decision, as implemented herein, they already have that right as a matter of law under the provisions of the Act (29 U.S.C. 659(c), 660(a) and 661(j)).

When the final hearing session in this case convened on January 22, 1981, a recess was immediately declared at the request of the parties to enable them to resume settlement negotiations.  The hearing was never reconvened as the parties advised me informally on January 23, 1981 that they had settled all remaining charges alleged in the citations, other than those resolved in the preliminary decision.

II

A

Items Involved in the Preliminary Decision

Citation Number 1 (Serious)

Items (or subitems) 20 a through g, 25a and b, 27a, 39, 42, 43a, 45a through j, 46a through i and k, 48a, 51, 54b, 56a, 57c, 58b, c, f and h, and 74a through c - Vacated.

Items (or subitems) 47, 50 and 53a through e - Affirmed.

Items (or subitems) 48b, 49, 52 and 63a(a), a(b), and a(c) - Modified to allege other than serious violations, affirmed.

B

The partial settlement agreement filed by the parties on June 18, 1981 is approved, the motions contained therein are granted, and Respondent's notice of contest to the items (or subitems) affirmed in accordance with said agreement is dismissed.

Citation Number 1 (Serious)
Items 1, 4 through 8, 11, 12, 15, 18, 19, 20(h), 20(i), 20(k) through 20(n), 20(p), (23, 25(c) through 25(f), 26(a), 26(b), 28, 31, 43(b), 46(j), 54(a), 56(b) through 56(f), 57(a), 57(d) through 57(p), 58(a), 58(d), 58(e), 58(g), 59 through 61, 64 through 68, 69(c) through 69(l), 70(a), 70(b), 72, 73 and 75 - Affirmed.

Items 2, 3, 9, 10, 13, 14, 16, 20(j), 20(o), 21, 22, 24, 29, 30, 32 through 38, 40, 41, 55, 62, 63(b), 69(b) and 71 - Vacated.

Citation Number 2 (Willful)

Item 3 - Vacated.
Item 1, 2, 4 and 5 - Modified to allege

                              serious violations, affirmed.

Citation Number 3 (Nonserious)

Items 8 and 16 - Vacated
Items 1 through 7, 9
through 15, and 17
through 25 - Affirmed.

An aggregate penalty of $5,000 is assessed for the items (or subitems) of Citation number 1 for serious violations affirmed as serious violations, as provided for in both the preliminary decision and the partial settlement agreement and for the affirmed items of Citation number 2, as modified, and for items 1, 3, 4, 6, 13 and 20 of Citation number 3 for other than serious violations, the latter two citations as provided for in the partial settlement agreement.

Respondent will comply with the abatement provisions of paragraphs 3 and 4 of the partial settlement agreement and the respective parties will adhere to the agreements reached in paragraphs 5 through 10 thereof.

So ORDERED.

JOSEPH L. CHALK
Judge, OSHRC

Dated:  July 13, 1981
Hyattsville, Maryland.


FOOTNOTES:

[[1]] The issues the parties were instructed to address in their supplemental briefs were:

If the Secretary's regulation at 29 C.F.R. 1903.4 required notice and hearing on the warrant application, did the Secretary's conduct in obtaining the warrant ex parte violate the employer's right to due process of law under the Fifth Amendment?  What is the effect of the Supreme Court's holding in Accardi v. Shaughnessy, 347 U.S. 260 (1954), on this issue?  What is the effect of the Supreme Court's holding in United States v. Caceres, 440 U.S. 741 (1979), on this issue?

If the Secretary's conduct in obtaining the warrant ex parte did violate 29 C.F.R. 1903.4, what is the proper remedy under the Fifth Amendment?

Does the "good faith" exception of United States v. Leon, 104 S.Ct. 3405 (1984), apply to violations of due process rights under the Fifth Amendment?

Whether the decision of the United States Court of Appeals for the Third Circuit in Cerro Metal Products v. Marshall, 620 F.2d 964 (3rd Cir. 1980), should be applied retroactively to the warrant in this case, which was issued on August 25, 1977?

If the Commission concludes that the Secretary's conduct in obtaining the warrant ex parte violated the employer's right to due process of law under the Fifth Amendment, what effect, if any, does that have on the validity of the settlement agreement approved by the Judge on June 23, 1981?

Whether the terms of the June 23, 1981, settlement agreement require that the agreement be voided if the Commission alters Judge Chalk's decision.

[[2]] Before the oral argument, the parties were instructed to concentrate their arguments on the following two questions:

(1) If the Secretary's regulation at 29 C.F.R. 1903.4 required notice and hearing on the warrant application, did the Secretary's conduct in obtaining the warrant ex parte violate the employer's right to due process of law under the Fifth Amendment?  If so, does the due process violation require vacation of the citations or suppression of the evidence resulting from the inspection?

(2) If the Commission concludes that the Secretary's conduct in obtaining the warrant ex parte violated the employer's right to due process of law under the Fifth Amendment, what effect, if any, does that have on the validity of the settlement agreement approved by the Judge on June 23, 1981?

[[3]] The questions of the validity of the inspection and whether Penn Steel should be allowed to withdraw from the settlement agreement were not stated in the directions for review.  On review, the Secretary argues that the Commission therefore does not have any of these issues before it.   However, that issues in a case were not included in a direction for review does not preclude the Commission from considering them.  Once a case is directed for review, the Commission may consider any issue raised by the case. Hamilton Die Cast, Inc., 86 OSAHRC ____, 12 BNA OSHC 1797, 1986 CCH OSHD 27,576 (No. 83-308, 1986). Concomitantly, the Commission also has the discretion to decline review of issues tendered by the parties.  We decline to review certain additional issues that were mentioned by Penn Steel in its initial review brief but are not discussed in this opinion.

[[4]] As in Geupel, we find it unnecessary to consider whether Chevron v. Huson, 404 U.S. 97, 106 (1971), which generally governs retroactivity in civil cases, should be applied to Fourth Amendment questions.  We find that the "clearly foreshadowed" test of Chevron would yield here the same result as the "clear break" test of Johnson.

[[5]] Davis Metal Stamping, Inc., 82 OSAHRC 37/A2, 10 BNA OSHC 1741, 1744, 1982 CCH OSHD 26,134, p. 32,879 (No. 78-5775, 1982).

[[6]] That this is so is further indicated by the fact that even after the Barlow's decision, a majority of the tribunals that considered the question did not find that the language of Barlow's and the events that precipitated it suggested that OSHA lacked the authority to seek warrants ex parte.  The majority of the circuit courts have held that the Secretary had authority to obtain ex parte warrants under section 1903.4 as originally promulgated.  Donovan v. Red Star Marine Services, Inc., 739 F.2d 774, 782-784 (2d Cir. 1984), cert. denied, 105 S.Ct. 1355 (1985); Rockford Drop Forge Co. v. Donovan, 672 F.2d 626, 629-631 (7th Cir. 1982); Marshall v. Seaward International, Inc., 644 F.2d 880 (4th Cir. 1981) (table), aff'g 510 F. Supp. 314 (W.D. Va. 1980); Stoddard Lumber Co. v. Marshall, 627 F.2d 984, 989 (9th Cir. 1980); Marshall v. W & W Steel Co., 604 F.2d 1322, 1324 (10th Cir. 1979). Only the Fifth Circuit in Donovan v. Huffines Steel Co., 645 F.2d 288 (5th Cir. 1981), has agreed with the holding of the Third Circuit in Cerro.  In addition, the Commission has held that the Secretary was empowered under the original version of section 1903.4 to obtain ex parte warrants.  Davis Metal Stamping, 10 BNA OSHC at 1747, 1982 CCH OSHD at p. 32,900.

[[7]] The reasonableness of OSHA's interpretation is also supported by the fact that it was later accepted by the Commission and a majority of the courts of appeals that considered the issue.  See note 6 supra.

[[8]] See also his views in Equitable Shipyards, Inc., 85 OSAHRC _______,12 BNA OSHC 1288, 1985 CCH OSHD 27,237 (Nos. 81-1685, 81-1762 and 81-2089, 1985); Smith Steel Casting Co., 85 OSAHRC, ______, 12 BNA OSHC 1277, 1985 CCH OSHD 27,263 (Nos. 80-2069 and 80-2322, 1985) appeal filed, No. 85-4346 (5th Cir. May 21, 1985); Thermal Reduction Corp., 85 OSAHRC __________, 12 BNA OSHC 1264, 1985 CCH OSHD 27,248 (No. 81-2135, 1985); Davis Metal Stamping, 12 BNA OSHC at 1261, 1985 CCH OSHD at p. 35,156; Brooks Woolen, 12 BNA OSHC at 1233, 1985 CCH OSHD at p. 35,148; Robert K. Bell Enterprises, Inc., 85 OSAHRC ____, 12 BNA OSHC 1149, 1985 CCH OSHD 27,139 (No. 78-4332, 1984), aff'd, No. 85-1547 (10th Cir., Feb. 19, 1986); Beauty Craft Tile of the Southwest, Inc., 85 OSAHRC _______, 12 BNA OSHC 1082, 1983-84 CCH OSHD 27,091 (No. 80-471, 1984).

[[9]] Once the warrant has been executed and enforcement proceedings commenced before the Review Commission, a majority of courts have held that the district courts should refrain from considering further challenges to the validity of the warrant.  Rather, the matter should be considered by a court of appeals after a full factual record has been developed by the Review Commission. Babcock & Wilcox, 610 F.2d at 1136 ("The question in this case is not whether the issues may be heard by an Article III court, but when.").  But see Weyerhauser Co. v. Marshall, 592 F.2d 373 (7th Cir. 1979).

The function of the Commission and its judges is to hear employers' challenges to the Secretary's evidence in support of citations and, only consistent with this authority, can the Commission consider claims that evidence should be suppressed because of an invalid inspection.  See section 10(c) of the Act, 29 U.S.C. 659(c); Babcock & Wilcox, 610 F.2d at 1136; see also Establishment Inspection of the Metal Bank of Am., Inc., 700 F.2d 910 (3d Cir. 1983); Baldwin Metals, 642 F.2d at 773 n.11.

[[10]] Smith Steel Casting Co. v. Donovan, 725 F.2d 1032, 1035-1036 (5th Cir. 1984); Robert K. Bell Enterprises, Inc. v. Donovan, 710 F.2d 673 (10th Cir. 1983), cert. denied, 464 U.S. 1041 (1984), Metal Bank, 700 F.2d at 914; Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1066 (11th Cir. 1982); Babcock & Wilcox, 610 F.2d at 1136-1137; In re Inspection of Central Mine Equipment Co., 608 F.2d 719 (8th Cir. 1979); Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871 (3d Cir. 1979); In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611 (1st Cir. 1979).

[[11]] Paragraph 9 of the Application for the warrant described the Foundry NEP in the following way.

The National Emphasis Program (hereinafter "NEP") was established in 1976 to reduce hazards in industries reporting a higher than average rate of injuries and illnesses.  The first target industries selected by NEP were iron and steel foundries and aluminum, bronze, brass and copper casting and metal stamping plants.  Foundries reported a 1973 illness and injury rate of 26.6 per 100 workers as compared to the national average of 8.8.

NEP inspections are conducted by teams of safety officers and industrial hygienists.  NEP inspection teams are not limited to identifying violations as during ordinary inspections, but are also required to provide foundry operators with technical assistance by evaluating unsafe conditions and practices, identifying abatement methods and techniques, establishing or maintaining safety and health programs and providing a detailed evaluation of the employer's safety program.

The NEP goal is to achieve a significant reduction in the incidence of occupational injuries and illnesses due to hazards in the foundry industry.  NEP functions such as consultation, training and education, evaluation and compliance monitoring are essential to the achievement of his goal.

[[12]] As our discussion indicates, Penn Steel's statement in its initial review brief that it withdraws from the settlement agreement is to be treated as a motion to withdraw which may be granted or denied by the Commission.   As such, the request to withdraw should have been presented to the Commission in the form of a motion, filed separately from the brief.  See McWilliams Forge Co., 84 OSAHRC, 11 BNA OSHC 2128, 2131 and n.6, 1984-85 CCH OSHD 26,979, p. 34,671 & n.6 (No. 80-5868, 1984), citing Fed. R. Civ. P. 7(b)(1) and Fed. R. App. R. 27(a).  At the time that Penn Steel filed its review brief with the motion stated in it, the Commission had not yet issued McWilliams Forge disapproving the practice of incorporating motions in briefs.

[[13]] We acknowledge that Penn Steel did not raise the preemption issue and that we are raising section 1910.215(b)(6) in this litigation for the first time.  We have done so because the preemption of section 1910.212(a)(1) by section 1910.215(b)(6) became plainly evident as we reviewed the evidence as to these items and items 53(a) and (e), which allege violations of section 1910.215(a)(2).  Ordinarily, we would afford the parties the opportunity to brief this issue.  In this case, however, the parties have already submitted lengthy supplemental briefs and have argued the case orally.  In view of the age of the case, and in the interest of judicial economy, we will dispose of this item on the existing record.

[[14]] The standard provides:

1910.212 Several requirements for all machines
(a) Machine Guarding
* * *
(3) Point of operation guarding
* * *
(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded.  The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

[[15]] We have considered whether section 1910.212(a)(3)(ii) is preempted by the more particular standards at 29 C.F.R. 1910.215(b)(5), (b)(10)(iv) and (v).  See also 29 C.F.R. 1910.211(b)(13).  However, the description of the machine cited in item 46(a) is not sufficient for us to decide whether these more particular standards are applicable.

[[16]] The standard provides:

1910.215 Abrasive wheel machinery
* * *
(a) General requirements
* * *
(2) Guard design.  The safety guard shall cover the spindle end, nut, and flange projections.  The safety guard shall be mounted so as to maintain proper alignment with the wheel, and the strength of the fastenings shall exceed the strength of the guard, except:

[[17]] That section provides:

1910.243 Guarding of portable powered tools
* * *
(c) Portable abrasive wheels
* * *
(3) Safety guards used on machines known as right angle head or vertical portable grinders shall have a maximum exposure angle of 180, and the guard shall be so located so as to be between the operator and the wheel during use.  Adjustment of guard shall be such that pieces of an accidentally broken wheel will be deflected away from the operator.

[[18]] The standard requires

1910.213 Woodworking machinery requirements.

(j) Jointers.

(4) Each hand-fed jointer with horizontal cutting head shall have a guard which will cover the section of the head back of the gage or fence.

[[19]] See footnote 15.

[[1]] Although handed down after this warrant was issued, the holding in Barlow's must be applied retroactively.  In United States v. Johnson, 457 U.S. 537, 549 (1982), the Supreme Court ruled that fourth amendment cases are generally to be applied retroactively unless they are a "clear break with the past."  Barlow's was not a clear break with the past, but, rather, was the culmination of a long line of administrative search cases beginning as far back as Camara v. Municipal Court, 387 U.S. 523 (1967) and See v. City of Seattle, 387 U.S. 541 (1967).  Indeed, the holding in Barlow's was "clearly foreshadowed."  see Chevron Oil Co. v. Huson, 404 U.S. 97, 106 (1971), by numerous lower court decisions that relied on Camara and See in requiring OSHA to obtain warrants to inspect.  See Stanbest, Inc., 83 OSAHRC 10/D6, 11 BNA OSHC 1222, 1233-34, 1983-84 CCH OSHD 26,455 pp. 33,626-27 (No. 76-4355, 1983) (Rowland, dissenting).  Cf. Carl M. Guepel Const. Co., 82 OSAHRC 60/B5, 10 BNA OSHC 2097, 1982 CCH OSHD 26,309 (Nos. 81-55 & 81-56, 1982) (retroactive application to be given to the Commission decision in Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD 25,360 (No. 78-5265, 1981), holding that evidence must be suppressed if probable cause for a warrant does not exist).

[[2]] In this respect the present affidavit is remarkably similar to the affidavit that was struck down in Barlow's because there were "no facts presented that would indicate why the inspection of Barlow's establishment was within the program."  436 U.S. at 323 n.20.

[[3]] Contrary to Commissioner Wall's analysis, Urick Property is directly on point.  There, as here, there was "no recital of a rational basis for the selection" of the particular foundry to be inspected under the NEP, and it is entirely possible that the selection of Penn Steel for a general inspection under the NEP was as arbitrary as the court found the selection of Urick to be.   Commissioner Wall's justification of the present warrant is based on Penn Steel's previous violations and the fact that foundries may be dangerous places to work.   This reasoning begs the question.  If the probable cause for the warrant was Penn Steel's previous violations, then the warrant should have been so limited.  If a broad, wall-to-wall inspection was really due at that time under the NEP, then the warrant application should have described how Penn Steel was selected pursuant to the NEP.   Since the warrant application failed to describe the selection process, the warrant here fails for precisely the same reasons as in Urick Property.

[[4]] My personal view is that if a party enters into a settlement merely to avoid the expense of litigating factual issues because he believes that the case is controlled by a question of law and intends to seek review on that question of law, he should make it clear that that is the reason, or at least one reason, for his agreement to the settlement.