“SECRETARY OF LABOR,Complainant,v.PENNSYLVANIA STEEL FOUNDRY & MACHINECOMPANY,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO,Authorized EmployeeRepresentative.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 Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _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 NationalEmphasis 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 \”inaccordance with the guidelines\” set forth in the Foundry NEP.A team of OSHA compliance officers inspected the Penn Steel facility fornearly a month. As a result of the inspection, the Secretary issuedthree citations alleging 298 violations of OSHA standards. Penn Steelcontested all of the alleged citation items.Protracted settlement discussions ensued. Eventually, the partiesagreed to litigate some of the citation items while continuing to try tosettle the case. In January 1979, Administrative Law Judge Joseph Chalkheard evidence on the 58 citation items that the parties could not agreeupon during their settlement discussions. The hearings on the 58 itemsclosed and the parties, including the United Steelworkers of America,continued their settlement discussions.In August 1979, Penn Steel moved for summary judgment claiming that thewarrant authorizing the inspection was invalid on two grounds: that itwas 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 SupremeCourt held that a search of a business under the Occupational Safety andHealth Act could not be conducted without a warrant supported byprobable cause. In _Cerro_, the Eastern District Court of Pennsylvaniaheld that _ex_ _parte_ warrants were not permissible under thethen-existing version of 29 C.F.R. ? 1903.4, a regulation governingOSHA’s resort to search warrants. Both _Barlow’s_ and _Cerro_ weredecided after the inspection of the Penn Steel foundry. Judge Chalkdenied the motion for summary judgment, stating that he would not applythe _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 waspresented and affirmed some of the citation items and vacated others. Ayear later, the parties settled the remaining items and agreed in asettlement agreement that Judge Chalk’s disposition of the 58 citationitems set forth in his preliminary decision would take effect. In July1981, Judge Chalk issued his final decision. It incorporated byreference and implemented his preliminary decision and the settlementagreement.Both parties petitioned the Commission for review. In its petition,Penn Steel repeated its contention that the \”inspection was invalidbecause it was conducted pursuant to a warrant issued on an _ex_ _parte_basis and without probable cause and that all evidence collected duringsaid inspection should have been suppressed.\” Penn Steel alsopetitioned for review of a number of citation items disposed of by JudgeChalk, but did not seek review of the settlement agreement. TheSecretary petitioned for review of only three citation items that werevacated by the judge.Former Commissioner Cottine directed review on the issues contained inthe 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 thegrounds that \”there was no evidence that the grinders have been operatedwithin the statutory period or that when operated, they presented ahazard [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 thegrounds that guarding of the cited machine was impossible and thealternative 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 Actas 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 addressseveral more issues.[[1]] Oral argument was held before the Commissionon March 26, 1986.[[2]]The questions before the Commission involve whether evidence should besuppressed because the inspection under the warrant was invalid, whetherPenn Steel should be allowed to withdraw from the settlement agreement,and the merits of a few litigated citation items.[[3]] For the reasonsthat follow, we hold that the evidence should not be suppressed, thatjudgment on the 240 unlitigated citation items should be entered inaccordance with the settlement agreement, and that Judge Chalk’sdecision as to several litigated citation items should be affirmed as tosome and reversed as to others.II. Validity of the Inspection; Suppression of Evidence.Penn Steel argues that the inspection was invalid because OSHA proceededcontrary to its regulation in obtaining an _ex_ _parte_ warrant. At thetime of the inspection of the Penn Steel foundry in August 1977, theregulation governing OSHA inspections in the face of an employer’sobjection, 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, inexercise of his official duties, to enter without delay and atreasonable times any place of employment . . . [t]he Compliance Safetyand Health Officer shall endeavor to ascertain the reason for suchrefusal, and shall immediately report the refusal and the reasontherefore to the Area Director. The Area Director shall consult withthe Regional Solicitor, who shall take appropriate action, includingcompulsory 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 thisregulation did not permit OSHA to seek a warrant in an _ex_ _parte_proceeding. Penn Steel contends that the Commission must apply theholding of _Cerro_ to this case because it arises within the ThirdCircuit, and that the evidence gained through the inspection shouldtherefore be suppressed. Penn Steel also argues that the evidenceshould be suppressed for various other reasons.A. RetroactivityEven if the warrant here would be declared invalid by the Third Circuitunder Cerro, the question of retroactivity must be considered. Indeciding whether a decision construing the Fourth Amendment should beapplied retro-actively, the Commission has been guided by _United Statesv. Johnson_, 457 U.S. 537 (1982). _See_ _Carl M. Geupel ConstructionCo_., 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 FourthAmendment cases were generally applied retroactively unless the case wasa \”clear break with the past.\” _Johnson_, 457 U.S. at 549. The Courtstated that a decision was not generally considered a \”clear break\”unless that ruling caused \”such an abrupt and fundamental shift indoctrine as to constitute an entirely new rule which in effect replacedan older one,\” . . . . Such a break has been recognized only when adecision explicitly overrules a past precedent of this Court, . . . ordisapproves a practice this Court arguably has sanctioned in priorcases, . . . or overturns a longstanding and widespread practice towhich this Court has not spoken, but which a near-unanimous body oflower court authority has expressly approved.457 U.S. at 551 (citations omitted).This case does not fall neatly into two of the non-retroactivitycategories in _Johnson_. _Cerro_ did not overturn or disapprove of aline of OSHA case law that had endorsed the seeking of an OSHAinspection warrant _ex_ _parte_. As far as case law was concerned,_Cerro_ wrote on an almost clean slate. This case instead falls withinthe category of cases involving an arguably-sanctioned practice–theseeking of warrants _ex_ _parte_.When the warrant in this case was issued in August of 1977, no court haddisapproved of OSHA’s practice of seeking some inspection warrantswithout the participation of the party to be inspected. Indeed, whenthe warrant was issued, even the requirement for OSHA to seek a warrantwas still uncertain. The Supreme Court’s decision in _Barlow’s_,holding for the first time that a warrantless search of a business underthe Occupational Safety and Health Act violated the Fourth Amendment,was decided almost a year later. The body of OSHA inspection warrantlaw that was then evolving tended, however, to look to the model of thecriminal search warrant for guidance on how to proceed. Yet, criminalsearch warrants had been _ex_ _parte_ as a rule. As the Supreme Courtnoted in _Franks v. Delaware_, 438 U.S. 154, 169 (1978), \”[t]hepre-search proceeding is necessarily _ex_ _parte_, since the subject ofthe search cannot be tipped off to the application for a warrant lest hedestroy or remove evidence.\”This practice would seemingly have fit the Occupational Safety andHealth Act well, for the Act imposes criminal penalties for givingadvance notice of inspections and the Secretary’s regulations alsoforbade 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, theregulation that was critical to the _Cerro_ decision, did not expresslyrequire that adversary process be employed. As the district court notedin Cerro, the phrase \”compulsory process\” in the regulation encompasses_ex_ _parte_ warrants. 467 F. Supp. at 875 n.9. And as the Commissionlater observed, and the facts of this case suggest, OSHA, as a practicalmatter often–though by no means always, had sought warrants _ex__parte_.[[5]] \”That the OSHA field staff may frequently have soughtinspection 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 didnot authorize OSHA to seek warrants _ex_ _parte_ was compelled not bythe language of section 1903.4 or by a universal practice by OSHA ofseeking warrants through adversary process, but by passages in theSupreme Court’s Barlow’s opinion. The _Cerro_ courts noted that thislanguage, which post-dated the issuance of the warrant here by almost ayear, was precipitated by the litigating position of the SolicitorGeneral before the Court. The _Cerro_ courts viewed that litigatingposition as having represented to the Supreme Court that section 1903.4did 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 withclarity until after the warrant in this case was issued. The SolicitorGeneral’s brief to the Court in _Barlow’s_ did not at all suggest thatsection 1903.4 required adversary process. Only a hint of the positioncame in the Solicitor General’s jurisdictional statement, which urgedthe 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 requirethe Secretary to obtain a court order authorizing entry if the inspectoris initially refused entry,\” the text on the same page stated that it is\”common\”–rather than universal–in civil warrant practice to issue ashow cause order to the employer before compulsory process is obtained. Statement of Jurisdiction at 11 & n.13. The Solicitor General’sposition before the Court that adversary process was the rule becameclear only during oral argument on January 9, 1977, over four monthsafter 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, wecannot say that the OSHA field officials who sought this warrant wouldhave 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 appliedby the _Cerro_ courts, did overturn a previously unquestioned andwell-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 Cerroretroactively here.B. _Suppression as a Remedy_In any event, if _Cerro_ were applied retroactively, we would notexclude the evidence gathered during the inspection. In criminal cases,the exclusionary rule is applied only where the benefits of suppressionoutweigh the cost of preventing the use of relevant evidence in lawenforcement proceedings. _United States v. Leon_, 104 S.Ct. 3405,3412-13 (1984). In this case, we are dealing with an alleged violationof a regulation rather than a Fourth Amendment violation, but we believethat a similar balancing test should be employed. _See_ _Brooks WoolenCo_., 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 haspointed out, the suppression of illegally obtained evidence in criminalcases produces the benefit that it deters law enforcement officers fromengaging in misconduct in the future when they are aware that the fruitsof such misconduct will not be admissible. _Leon_, 104 S.Ct. at 3418. It is similarly desirable to deter OSHA compliance officers fromobtaining evidence by illegal means. _Brooks Woolen_, 12 BNA OSHC at1236, 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 anyintentional misconduct, but simply implemented a reasonableinterpretation of section 1903.4. As we discussed above, when OSHAapplied for the warrant in the _ex_ _parte_ proceeding involved here,OSHA was following one of its normal practices. Moreover, the regulationon its face did not impose a strait-jacket on OSHA, requiring it to seekwarrants _ex_ _parte_ or not inspect at all. Its language did not limitOSHA to seeking \”compulsory process\” but simply stated that such processis included among the \”appropriate action[s]\” to be taken \”ifnecessary.\” The term \”compulsory process,\” which was not defined in theregulation, does not expressly forbid _ex_ _parte_ warrants. Also, theSupreme Court had not yet expressed the view that the regulation limitedOSHA to adversary proceedings and no federal court had ruled on thequestion. 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 atthe time.[[7]] Finally, suppression here would have little deterrentvalue, for in 1980 the Secretary amended section 1903.4 to specificallyallow _ex_ _parte_ warrants. _See_ 45 Fed. Reg. 65916-24 (October 3,1980). We therefore do not find that suppression would be anappropriate remedy here.Commissioner Wall would add that this result would in any event becompelled under _Leon_. The OSHA officials who applied for thiswarrant were obviously proceeding in good faith reliance on thethen-accepted practice of obtaining warrants _ex_ _parte_. Similarly, inexecuting the warrant, they relied in good faith on the judgment of aneutral and detached judicial officer that the workplace should beinspected. 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 isavailable must be overruled._C. Due Process_Penn Steel also argues that its due process rights were denied becauseit was denied an adversary hearing required by section 1903.4. This isnot, however, a case where an individual has reasonably relied on anagency regulation promulgated for his guidance or benefit and hassuffered substantially because of a violation of the regulation by theagency. _See United States v._ _Caceres_, 440 U.S. 741, 752-3 (1979). Here, we are not convinced that Penn Steel reasonably relied onreceiving an adversary hearing when the Secretary applied for thewarrant. As we discussed above, when the Secretary obtained thewarrant in 1977 there was no judicial interpretation of section 1903.4. There were only the plain words of the regulation that the Secretarytake \”appropriate action, including compulsory process, if necessary.\” This language is subject to several reasonable interpretations. As thedistrict court pointed out in _Cerro_, 467 F. Supp. at 875 n.9, \”[o]fcourse, the term ‘compulsory process’ does not have to connote adversaryprocess.\” There was also neither a statute nor a constitutionalprovision requiring an adversary hearing in a warrant proceeding. _See__Caceres_, 440 U.S. at 744. It is difficult to see, then, how PennSteel relied on receiving an adversary hearing in 1977 on the questionof the validity of the warrant. That Penn Steel never truly expected toreceive such an adversary hearing is strongly indicated by the fact thatPenn Steel never contested the _ex_ _parte_ nature of the warrant untilits motion for summary judgment nearly two years after issuance of thewarrant, after the Supreme Court in _Barlow’s_ and the District Courtfor Eastern Pennsylvania in _Cerro_ had placed a judicial gloss onsection 1903.4. Since Penn Steel could not have reasonably relied andmost likely did not rely on receiving an adversary hearing when theSecretary applied for the warrant, we find that there was no violationof Penn Steel’s due process rights._D. Probable Cause; Scope of Warrant_Penn Steel argues that the warrant was not based on probable causebecause it was not based on a general administrative plan forenforcement derived from neutral sources, as required by _Barlow’s_.Chairman Buckley believes that the Commission is without authority toconsider Penn Steel’s arguments. The Chairman would hold that, becausethe Commission is an administrative agency within the executive branchof the federal government, it cannot perform functions committed to thejudicial branch and therefore cannot review a federal magistrate’sdecisions about probable cause for or other legal authority underlying awarrant. _E.g_., _Phoenix Forging Co_., 85 OSAHRC ______, 12 BNA OSHC1317, 1319 1985 CCH OSHD ? 27,256 (No. 82-398, 1985) (view of ChairmanBuckley).[[8]] _See_ _Babcock & Wilcox v. Marshall_, 610 F.2d 1128,1136-37 (3d Cir. 1979) (the Commission cannot \”sit in direct review ofthe decision of the magistrate\”); _Baldwin Metals Co. v_. _Donovan_, 642F.2d 768 (5th Cir. 1981). _See_ _also_ _Muskrat v. United States_, 219U.S. 346, 353 (1911) (no executive officer can be \”authorized to sit asa court of errors on the judicial acts or opinions of [an Article III]court.\”). Accordingly, Chairman Buckley believes the Commission cannotconsider any of Penn Steel’s arguments requesting review of themagistrate’s judgments about the sufficiency of the probable cause basisfor the warrant, the sufficiency of OSHA’s affidavit citing facts andlegal authorities for the warrant, or the existence of legal authorityfor any of the particular time or scope provisions of the warrant. Onlya federal court can address these matters.[[9]]Commissioner Wall would entertain the question of whether there wassufficient probable cause to obtain a warrant to inspect the Penn Steelfoundry. The majority of the courts of appeals that have consideredthis issue have held that the Commission is a proper forum for theconsideration of fourth amendment issues, and that once the statutoryCommission review process has been commenced, any objections to thevalidity of a warrant must be raised before the Commission.[[10]] Inaccordance with this authority, the Commission in _Sarasota ConcreteCo_., 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 anOSHA warrant was overbroad in scope. The Eleventh Circuit expresslyaffirmed the Commission’s decision, ruling that the Commission shouldreview the magistrate’s determination of probable cause in connectionwith admitting or excluding evidence in its own proceeding:[R]eview by OSHRC does not directly affect the substance of themagistrate’s determination. As explained by the Third Circuit in_Babcock & Wilcox Co_.,The Article III objections stressed by Babcock similarly mischaracterizethe process. The Review Commission will not sit in direct review of thedecision of the magistrate. As already indicated, the decision to issuethe inspection warrant is complete and cannot be negated. If thechallenge is raised by Babcock, the problem for the Review Commissionwill be whether to use the evidence obtained from the inspection. Indeciding whether to use the evidence the Review Commission must ofcourse, make its own judgment as to the propriety of the warrant, butsuch a determination does not reverse the magistrate’s action, nor doesit contravene a judicial order. The OSHA official would not be incontempt if he were to decide not to execute a warrant signed by themagistrate, and an administrative tribunal does not flout the authorityof the judiciary by refusing to consider evidence that has been obtainedpursuant 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 anadministrative agency is not ordinarily considered the appropriate forumfor the resolution of constitutional claims, we think there arecompelling reasons for insisting that fourth amendment claims for thesuppression of evidence in OSHA enforcement cases be tendered first tothe Commission.\” Because the courts have so clearly directed thatconstitutional challenges to OSHA warrants should be ruled on by theCommission, Commissioner Wall would consider whether warrants of aparticular scope should have issued.After examining the application for the warrant, Commissioner Wall wouldfind that there was sufficient probable cause to allow the inspection. In _Barlow’s_, the Supreme Court held that probable cause for an OSHAinspection could be based on evidence of an existing violation or on theshowing 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 showingthat a specific business has been chosen for an OSHA search on the basisof a general administrative plan for the enforcement of the Act derivedfrom neutral sources such as, for example, dispersion of employees invarious types of industries across a given area, and the desiredfrequency of searches in any of the lesser division of the area, wouldprotect 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 afollow-up inspection \”to determine the validity of [Penn Steel’s]claimed inability to comply with safety and health requirements and toconduct the inspection pursuant to OSHA’s National Emphasis Program forFoundries.\”[[11]] A plan similar to the Foundry NEP has been found tobe the type of general administrative plan envisioned by _Barlow’s_. In_In re-Establishment Inspection of Gilbert & Bennett Mfg. Co._, 589 F.2d1335 (7th Cir.), _cert_. _denied_, 444 U.S. 884 (1979), the court foundthat an inspection made under a warrant obtained on the basis of \”aNational-Local plan\” for foundries was supported by probable cause. Thecourt stated:. . . the instant warrant was plainly supported by probable cause in theCamara\/Barlow’s sense since Chromalloy was selected for inspection notas the result of the \”unbridled discretion\” of a field agent, butrather, pursuant to \”a National-Local plan\” designed by agency officialsfor the purpose of reducing the high incidence of occupational injuriesand illnesses found in the metal-working and foundry industry.Commissioner Wall believes the same reasoning applies to the applicationfor the warrant in this case. The Foundry NEP, like the \”National-Localplan\” in _Gilbert & Bennett_ is the kind of general administrative planenvisioned by _Barlow’s_ and as such supplies sufficient probable causefor the administrative inspection in this case.Penn Steel argues, however, that _In re Establishment Inspection ofUrick Property_, 472 F. Supp. 1193 (W.D. Pa. 1979), requires a differentresult. In _Urick_, an inspection warrant was sought under the FoundryNEP. The warrant was quashed because the warrant application statedthat only one foundry inspection would be conducted in a 17-county areacontaining at least 11 foundries, but the application did not explainwhy the Urick Foundry was chosen. The district court therefore couldfind no rational basis for the selection of the foundry in _Urick_.Commissioner Wall disagrees with Penn Steel that _Urick_ requires afinding that the warrant should not have been issued. The warrant herestated a rational basis for choosing Penn Steel. The warrantapplication recited that in 1974, Penn Steel withdrew its contest of acitation alleging employee exposure to excessive levels of silica dustand iron oxide fumes, and the exposure of employees to toxic materialsin their lunch room. In 1974, a follow-up inspection resulted in twomore citations: one alleged a \”repeated\” violation of the silica duststandard at various locations; another alleged employee exposure toexcessive sound levels in two foundries and one shop; another itemalleged exposure to excessive levels of inert or nuisance dust and amixture of air contaminants consisting of copper fume, chromium fume,nickel fume and iron oxide fume. Penn Steel withdrew its contest ofthese citations also after representing to the Commission’sadministrative law judge that the violations had already been abated orwould be abated. After six months, however, Penn Steel claimed in aletter to OSHA that it could not implement controls for dust and noise. About three months later, an inspection team proceeding under theFoundry NEP was refused entry into the Penn Steel foundry and a warrantwas issued.Unlike _Urick_, Penn Steel’s history of previous violations, and itsclaim that it could not abate, coupled with an emphasis on foundryinspections under the Foundry NEP, furnished the magistrate ample causeto authorize an inspection of the entire foundry. What appears from thewarrant is that this foundry may have been a dangerous place ofemployment at the time the warrant was sought and that Penn Steel’sreluctance to implement controls was continuing. Unlike the record in_Urick_, the record here does not show that OSHA officials had decidedthat only one inspection in a large geographical area should be conducted.In any event, Commissioner Wall would hold under _Leon_ that OSHA soughtthe warrant in good faith and executed it in good faith reliance on thejudgment of the magistrate._E. Scope of Inspection_Penn Steel also argues that the inspection exceeded the scope of thewarrant. Chairman Buckley joins with Commissioner Wall in addressingthis argument because it calls into question OSHA’s conduct, not that ofthe magistrate. Penn Steel contends that the inspection of thewoodworking machinery in the pattern shop of the foundry was notauthorized by the warrant. Penn Steel argues that the assembly, repair,and cleaning of patterns, which the inspection covered, were not a partof the foundry operations that the warrant authorized OSHA to inspect.The warrant application that OSHA submitted to the magistrate discussedthe Foundry NEP and stated that OSHA was seeking this inspection underthat program. The warrant stated that OSHA compliance officers were\”authorized to enter the…premises…to inspect and investigate in areasonable manner and to a reasonable extent, in accordance with theguidelines set forth in the [Foundry NEP]…\” When OSHA conducted theinspection under this warrant, the compliance officers inspected anumber of different departments and areas, including the pattern shop. The citations that were subsequently issued included items allegingviolations in this area. Among other things, the allegations concernedunguarded or improperly guarded woodworking machinery. This machinerywas used to make, repair, and maintain the wooden patterns for the moldsused to make the castings.Penn Steel contends that the fabrication and care of patterns is not afoundry operation covered by the Foundry NEP. In support of thiscontention, Penn Steel does not rely on the Foundry NEP directly but onan 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 theFoundry NEP for significantly reducing foundry injuries and illnesseswill be \”compliance monitoring,\” which will consist of initialinspections followed by scheduled monitoring inspections to assureabatement of hazards. For the purpose of this program, the programdirective defines \”foundry\” as \”a building, establishment or works wheremetal castings are produced.\” The term \”casting\” is defined as a \”metalobject cast to required shape by pouring or otherwise injecting liquidmetal into a mold, as distinct from one shaped by a mechanicalprocess.\” In addition, there is a specific definition of \”productionarea\” which is repeated in an attachment, part of the program directive,as a definition of the operations to be covered in the initialinspection under the Foundry NEP. The language of this criticaldefinition 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 tofabricate a final product is not included._Id_. at 1-2, I-V-3 (emphasis added). Penn Steel asserts that theassembly and use of patterns is \”[a]ssembly of other parts to fabricatea final product\” and that, therefore, under this definition theoperations pertaining to building and maintaining the patterns are notpart of the foundry operations covered by the NEP. In Penn Steel’sview, because the warrant authorized an inspection only in accordancewith the Foundry NEP, inspection of the pattern operations was improper.The program directive does not specify exactly what is meant by thelanguage on which Penn Steel relies. We have therefore examined theprogram directive and the various attachments to the directive and haveconcluded that the pattern shop is indeed covered by the Foundry NEP. In several places the directive and its attachments specifically addressproblems in pattern shops. In an attachment about industrial hygieneand occupational health, there is a \”Guideline of Air Contaminants’Normally’ Found in Foundry Operations.\” One of the operation areas towhich the guideline refers is the \”Pattern Shop Area.\” The aircontaminants listed include wood dust, solvents, plasticizers, and woodpreservatives. _Id_. at I-XIII-1, 13-14. In an appendix relating toidentification of violations in foundry operations, the OSHA standardsgoverning hazards presented by woodworking machinery are extensivelydescribed and, in the section of this appendix identifying healthhazards 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 appendixexplicitly requiring information about pattern shops. _Id_. at IV-1,12, 18, 47. All of this shows that pattern shops were covered by theFoundry NEP and therefore by the inspection warrant._III. The Settlement Agreement_Penn Steel argues that it should be allowed to withdraw from thesettlement of the 240 unlitigated items it entered into with theSecretary and the United Steelworkers of America. Penn Steel claims, inits brief to the Commission, that, because the court in _Marshall v. SunPetroleum Products, Inc_., 622 F.2d 1176 (3d Cir.), _cert_. _denied_,449 U.S. 1061 (1980), held that the Secretary can withdraw from asettlement agreement at any time, \”[f]airness and justice require thatother parties have the same right.\” Penn Steel also maintains that ifthe Commission alters any of Judge Chalk’s dispositions of the 58litigated items, the settlement is void. Penn Steel also submits thatthe participation of the Union in the settlement negotiations was improper.The Secretary and the Union argue that the settlement is not before theCommission. First, they argue that the settlement is final by operationof law because Penn Steel did not petition for review of the settlementagreement and the Commission did not direct the issue of the settlementfor review. Second, they argue that the settlement is, by its ownterms, final.We held in _Hamilton Die Cast, Inc_., 86 OSAHRC ________, 12 BNA OSHC1797, 1986 CCH OSHD ? 27,576 (No. 83-308, 1986), that when theCommission directs any portion of a judge’s report for review, theentire judge’s report is before the Commission, unless the judge’sdisposition of a citation item is specifically severed and made a finalorder under Federal Rule of Civil Procedure 54(b). Although somespecific citation items were mentioned in the directions for review, theentire case, including the items covered by the settlement agreement,came before the Commission. Therefore, the items covered by thesettlement agreement did not become final merely because they were notmentioned in the direction for review. Finally, although the Union hadmoved for severance of the items covered by the settlement agreementafter Penn Steel had argued that the items were not yet final, theCommission deferred voting on the motion until it resolved the finalityissue; thus, the items covered in the settlement have not been severedunder Fed. R. Civ. P. 54(b).We also conclude that the settlement agreement has not become final byits own terms. In the first paragraph the agreement states:With respect to the citation items covered in the preliminary decisionof Judge Joseph L. Chalk dated June 27, 1980, the parties agree that thedisposition set forth therein shall take effect. The preliminarydecision will become effective on the date this stipulation becomes _afinal order of the Commission._(Emphasis added.) The Secretary and the Union argue that the term \”afinal order of the Commission\” means the date on which Judge Chalk’spreliminary decision became _his_ final decision. Thus, the Secretaryand the Union claim that settlement became final when Judge Chalkincorporated the settlement in his final decision, issued June 23, 1981.We cannot agree with the Secretary’s and the Union’s interpretation ofthe settlement agreement. Under section 12(j) of the Act, a report ofan administrative law judge becomes \”a final order of the Commission\”only if no Commissioner directs the case for review. Moreover, for thereasons set forth in _Hamilton Die Cast_, if a Commissioner directsreview of the judge’s report, there is no final order of the Commissionuntil the Commission issues a decision in the case. Accordingly, thissettlement is not final by its own terms.Furthermore, the conduct of Penn Steel, the Secretary and the Unionsubsequent to the settlement indicates that they did not consider theagreement to be final. Several sections of the agreement spell out thefuture duties of the parties. For example, paragraph 3(g) states that,During the duration of this agreement, [Penn Steel] will furnishComplainant, through its Harrisburg area director, semi-annual reportsdescribing its progress in obtaining compliance with the foregoing. Acopy 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 accomplishingabatement as set forth herein will exceed the $78,300 amount of proposedpenalties, all penalty proposals will be withdrawn and, in lieu thereof,there shall be assessed a single total penalty of $5,000. One-half ofthis amount shall be paid within 10 days of the date this stipulationbecomes a final order and the remainder shall be paid within 12 monthsthereafter.It appears from presentations of counsel at the oral argument that PennSteel never submitted the reports required under paragraph 3(g) nor didPenn Steel pay the penalty required under paragraph 6. Despite theseomissions by Penn Steel, neither the Secretary nor the Union moved toenforce 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 thesettlement agreement also suggests that the Secretary and the Union wereawaiting a subsequent event, namely, a final order of the ReviewCommission. Moreover, the union’s motion to sever the settlementagreement, made after Penn Steel moved to withdraw, shows implicitrecognition that the settlement agreement would not become final unlesssevered. In view of this and because Penn Steel’s agreement to thesettlement was certainly founded on its view that the finality of thesettlement would be postponed, we will also not consider that thesettlement agreement has yet become final.Although we do not believe the settlement is final, the question stillremains whether Penn Steel should be allowed to withdraw from thesettlement agreement. Penn Steel claims that it should be allowed towithdraw from the agreement because the Secretary can withdraw from asettlement 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 withdrewfrom a settlement agreement the parties were to be placed \”in theposition of _status quo ante_ the issuance of the citation.\” This,according to the court, would mean that \”neither the employer nor anyaffected employees will be prejudiced by the unilateral action of theSecretary.\” _Sun_ _Petroleum_, 622 F.2d at 1187.Clearly, the parties could not return to the _status_ _quo_ _ante_ ifPenn Steel was allowed to withdraw from the settlement at this latedate. Rather the Secretary would be severely prejudiced and Penn Steelwould benefit greatly from its unilateral withdrawal from the settlementagreement. Penn Steel’s motion for withdrawal comes after extensiveproceedings, both in terms of the time consumed and the record created. The hearing on the merits of the citation items not covered by thesettlement agreement took place long ago, in late 1978 and early 1979,and the hearings lasted for more than a week. The two hundred and fortyitems that were not tried would need to be tried. This would put theSecretary between Scylla and Charybdis. He could prosecute thecitations but on the basis of stale evidence. The alternative would bemore onerous. The Secretary could reinspect and issue new citations,but at the cost in time and resources of reinspecting all of the workareas and conditions covered in the original 240 items. Although PennSteel may have made alterations to bring conditions into compliance withOSHA standards, the Secretary would have been deprived of much of hispower to encourage _timely_ compliance by seeking civil penalties forviolations discovered at the time of the original inspection. Such achoice would undermine the purpose of the civil penalty scheme thatCongress established and the Commission’s efforts to encouragesettlement of disputes among the parties. _See_ _Consolidated EdisonCo_., 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 fromthe settlement at a very late stage of this litigation: the point wasraised in its review brief. This came, as the settlement says, after\”lengthy negotiations and litigation that has lasted for a period of 3years.\” We decline the invitation to render for nought all this hardwork by the parties. To encourage settlements and to avoid irreparableharm to the Secretary’s interests, the motion for withdrawal isdenied.[[12]]Penn Steel also claims that if the Commission changes any of JudgeChalk’s dispositions of the 58 litigated items, the settlement agreementas to the 240 unlitigated items is void. While this argument appearsfrivolous at first glance, it is not entirely so. The settlementagreement that the parties entered into came after Judge Chalk rendereda preliminary decision on the 58 unsettled items. A very lengthy staythen ensued. The parties later prepared a settlement agreementresolving the 240 unlitigated items; as to the litigated items, itstated that \”[w]ith respect to the citation items covered in thepreliminary decision of Judge . . . Chalk . . . the parties agree thatthe disposition set forth therein shall take effect.\” It couldtherefore be argued that the parties effectively made the preliminarydispositions by Judge Chalk their final consensual disposition–that the58 items were settled by the parties rather than by Judge Chalk.The problems with this argument are that it is contrary to anotherprovision of the settlement agreement and that it seems not to have beenthe intention of any of the parties or the understanding of JudgeChalk. The same paragraph of the settlement that contains the languageabove also states that \”[b]oth parties reserve their rights under[section 11 of the Act] 29 U.S.C. ? 660 and the applicable ReviewCommission Rules of Procedure to petition for review of that[preliminary] decision.\” Judge Chalk expressly noted this provision inhis final decision, declaring that both parties could seek review of hisdispositions of the 58 items. And indeed both the Secretary and PennSteel did petition the Commission for discretionary review of some ofthose litigated items. We therefore conclude, in view of the languageof the settlement as a whole, the understanding of Judge Chalk and theconduct, of the parties, that the phrase \”the disposition set forththerein\” merely reflected the parties’ intention that Judge Chalk’s stayof the proceedings pending settlement discussions would finally end andthat 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 theUnion’s participation caused it to agree to a settlement to which itwould not have otherwise agreed. However, Penn Steel has presented noevidence on how the Union’s participation affected the settlementprocess, nor can we fathom how the Union’s participation would haveaffected the settlement talks in the way Penn Steel claims. Therefore,we will not overturn the settlement agreement based on this unsupportedclaim._IV. The Citation Items_We now turn to the consideration of the citation items that weredirected 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 section1910.212(a)(1), a generally applicable machine guarding standard, byfailing to guard the wheels of two swing grinders. The two grinders hadguards over the top halves of the grinding wheels. The complianceofficer was concerned that chips of castings or pieces of the wheelscould fly back at the operators because the guards did not extenddownward over the backs of the wheels. Judge Chalk vacated the item onthe basis that the Secretary’s evidence of employee exposure wasinadequate. The Secretary argues on review that the judge erred. Wedo not reach this or any other issue because we conclude that section1910.212(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 ofmachine guarding shall be provided to protect the operator and otheremployees in the machine area from hazards such as those created bypoint of operation, ingoing nip-points, rotating parts, flying chips andsparks. Examples of guarding methods are–barrier guards, two-handtripping devices, electronic safety devices, etc.This standard is generally applicable to all machines. There are,however, other standards that are specifically applicable to certainmachines. See 29 C.F.R. ?? 1910.213-1910.219. Among these latterparticular standards, there is a standard for swing frame grinders thatrequires the grinders to have guards enclosing the top half of thewheel. _See_ 29 C.F.R. ?? 1910.215(b)(2) and (6). Section1910.215(b)(6) states:1910.215 _Abrasive wheel machinery_.* * *(b) _Guarding of abrasive wheel machinery_.* * *(6) _Swing frame grinders_. The maximum angular exposure of thegrinding wheel periphery and sides for safety guards used on machinesknown as swing frame grinding machines shall not exceed 180?, and thetop half of the wheel shall be enclosed at all times. (See Figures 0-14and 0-15.)The two figures to which the section refers show a rounded guard and asquared-off guard, each covering the top half of the grinding wheel. Up to 180 degrees of the bottom halves of the grinding wheels are shownopen.Where \”a particular standard is specifically applicable to a condition,practice, means, method, operation, or process, it shall prevail overany different general standard which might otherwise be applicable . . .. \” 29 C.F.R. ? 1910.5(c)(1). Because section 1910.215(b)(6) fullyaddresses the matter of guarding a wheel of a swing frame grinder,specifying where the guard must be installed and how much of the wheelmay remain open, it applies to the condition with which the Secretary isconcerned in this case. Accordingly, section 1910.215(b)(6) prevailsover 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 (8thCir. 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 aviolation of section 1910.215(b)(6). Under Rule 15(b) of the FederalRules of Civil Procedure, pleadings may be amended to conform to theevidence when an issue not raised by the pleadings has been tried by theexpress or implied consent of the parties. Here, the record is verylimited. During the proceedings, the parties referred neither to theparticular standard nor to requirements in the nature of those stated inthat standard. The parties did not focus on whether the guards whichPenn Steel had installed on the two grinders covered the top half of thewheels and whether the open portions of the wheels constituted more thanone-half of the total circumference. Instead, the parties tried onlythe general issue framed by the general standard–whether the operatorwas exposed to a hazard of rotating parts or flying chips during theoperations. They did not understand that a violation of section1910.215(b)(6) was at issue. Under these circumstances, it isinappropriate to amend the citation under Rule 15(b). _See_ _Nu-WayMobile Home Manufacturing, Inc_., 86 OSAHRC __, 12 BNA OSHC 1670, 1671,1986 CCH OSHD ? 27,489, p. 35,624 (No. 80-7082, 1986); McWilliams ForgeCo., 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 tablecut-off wheel or saw which was used to trim excess material fromcastings.[[14]] There is no doubt that the standard was violated.[[15]]At the hearing, however, the question arose whether compliance with thestandard was infeasible.The compliance officer stated that, while \”some type of guarding forthis kind of cutoff wheel\” is available, using this guarding \”canpresent some problems with the different configurations in thecastings.\” The compliance officer, who observed an employee feeding acasting into the blade, also testified that the \”best way\” to protectthe employee would be to construct and install a clamp to hold thecastings. Relying on this testimony, the judge vacated the citationitem and stated that the compliance officer’s testimony was \”aconcession that the type of guarding contemplated by the standard wasimpossible.\” The judge reasoned that the proposed clamps did notsatisfy the standard because they did not physically prevent theoperator from having a part of his body in the blade of the saw, andthat the type of guarding that did prevent the operator from touchingthe blade could not be used.The Secretary argues that Penn Steel failed to establish that guardingthe cited machine was \”impossible.\” The Secretary contends that showingthat guarding the machine would be difficult is not enough to showimpossibility. Also, the evidence revealed that clamps could be used asan alternative means of protection.In _Dun-Par Engineered Form Co_., 86 OSAHRC ___, 12 BNA OSHC __, 1986CCH OSHD ? (No. 79-2553, 1986), the Commission substantially altered the\”impossibility\” defense. Under _Dun-Par_, the burden of persuasion isupon the employer to establish that compliance with the cited standardwas \”infeasible\” as opposed to \”impossible.\” Also, the burden ofpersuasion was placed with the Secretary to establish that a feasiblemeans of protection not required by the standard was available but thatthe employer failed to use it.We agree with the Secretary that Penn Steel did not carry its burden ofproving that compliance was infeasible. The testimony of the complianceofficer shows, at best, that during _some_ operations, the use of aguard would be infeasible. However, the record does not show thatcompliance would be infeasible during all cutting operations. In anyevent, the record satisfies the Secretary’s burden of showing thatfeasible alternative means of protection exist. The compliance officertestified that clamps could be used to hold down the workpiece so thatthe employee’s hands could be kept away from the saw. Because we findthat clamps could feasibly be used when guarding is infeasible, wereject 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 item53(a), involve unguarded machines. The issue is whether the Secretarypresented sufficient evidence to establish that Penn Steel employees hadaccess to the violative conditions. To establish employee access, theSecretary must demonstrate a reasonable predictability that, in thecourse of their duties, employees will be, are, or have been in thezone of danger. _Clement Food Co_., 84 OSAHRC 128\/B10, 11 BNA OSHC2120, 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 thedanger is created by defective equipment, such as unguarded machines,the Secretary may satisfy this burden of proof by demonstrating that thedefective equipment was \”available for use\”–specifically, that thedefective equipment was located where employees could gain access to itand use it in the course of their normal duties. _See_,_e.g_., _BechtelPower 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_., 77OSAHRC 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 varydepending on the particular type of defective equipment involved andcircumstances at the particular worksite, but, in general, it will notbe enough for the Secretary to establish simply that the defective pieceof equipment was at the worksite. There must be sufficient evidenceabout the precise location of the defective equipment and specificduties of employees likely to involve use of such equipment at theparticular location to show that some use of the equipment in itsdefective condition at or around the time of the alleged violation wasindeed reasonably predictable.With respect to item 53(a), the compliance officer observed a grinderthat did not have a guard for the wheel spindle or nut. The Secretaryalleged that Penn Steel violated 29 C.F.R. ? 1910.215(a)(2).[[16]] Thejudge affirmed the citation. The compliance officer did not describewhere this grinder was located nor did he see the grinder in use. However, Mr. George Hartman, Penn Steel’s safety director whoaccompanied the compliance officer during the inspection, told thecompliance officer that the grinder \”was used for odd shaped castings.\” On the basis of the compliance officer’s uncontroverted testimonyconcerning Mr. Hartman’s admission, we affirm the judge’s decision thatthe 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 aseries of vertical portable grinders without guards in the back bay ofthe cleaning department. The Secretary alleged that Penn Steel violated29 C.F.R. ? 1910.243(c)(3)[[17]] because none of the grinders wereguarded. The compliance officer did not see either of the two grindersin use, but, with respect to the grinder involved in sub-item 63a(a),the compliance officer stated that he saw \”a number of grinders beingused in the area\” of it and that the grinding wheel of the particulargrinder \”was somewhat worn down.\” With respect to the grinder involvedin sub-item 63a(b), the compliance officer stated that this grinder was\”laying on a work bench in the area where they’re chipping andgrinding.\” The judge affirmed both of these items. We affirm hisdecision in view of this evidence that the grinders were located in anarea where similar grinders were used for grinding and chipping work,and therefore, that they were \”available for use\” by Penn Steelemployees. 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 areaof 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 thejointer. The compliance officer testified that he noted on his worksheet that the jointer was used daily. However, the compliance officertestified that he could not recall who told him that. In addition,although the compliance officer had noted the name of an employee withwhom he spoke during the inspection, the compliance officer could notdescribe this employee’s position or work. Therefore, there was noevidence that the employee would know about the usual operationsinvolving the jointer, or that the employee even worked in the patternshop. The record generally indicates that different machines were usedfor different operations or materials and the compliance officer did notprovide any reliable information about the duties of employees likely toinvolve the use of the unguarded jointer in the pattern shop around thetime of the alleged violation. Accordingly, Chairman Buckley concludesthat the Secretary has not established a reasonable predictability thatPenn Steel employees had access to the cited jointer. He thereforejoins with Commissioner Rader–whose views are stated in his separateopinion–in vacating item 50.Commissioner Wall would, however, find the evidence was sufficient toaffirm the judge’s finding that Penn Steel employees had access to theunguarded jointer. The judge found that \”the jointer was accessible inits violative condition for use by an employee.\” Commissioner Wallobserves that the compliance officer’s notes included the name andaddress of a Penn Steel employee. Although the compliance officercould not testify for certain, it is more likely than not that theemployee whose name and address was in the compliance officer’s noteswas the employee who told him that the jointer was used daily. Inaddition, the compliance officer testified that the inspection followedthe normal route of the foundry process. Therefore, the jointer was ina place where work was normally performed and was easily accessible foruse 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 Steelunder 29 C.F.R. ? 1910.215(a)(2).[[19]] Chairman Buckley joins withCommissioner Rader in vacating the item. Chairman Buckley would notethat unlike citation item 53(a), there was no evidence about where thegrinder cited in item 53(e) was located or that the grinder was used byPenn Steel employees. Therefore, Chairman Buckley finds that theSecretary did not establish that the Penn Steel employees had access tothe cited machine.Commissioner Wall would affirm the citation item. The administrativelaw judge found that the grinder was located in a work area andaccessible to Penn Steel employees. Commissioner Wall would defer tothe administrative law judge on this finding of fact.The judge assessed an aggregated penalty of $5,000, the amount that theparties specified in their settlement agreement. We affirm this assessment._Order_Accordingly, we affirm Judge Chalk’s order entering judgment inaccordance with the settlement agreement on the 240 unlitigated items.We also affirm his decision as to some of the litigated citation itemsbut 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 thejudge’s assessment of a $5000 penalty.BY THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: AUG 27 1986————————————————————————RADER, Commission, dissenting:I agree with Commissioner Wall that the Commission is required toconsider Penn Steel’s constitutional objections to the probable causeshowing by the Secretary for the inspection warrant. I dissent from themajority’s decision because in my view the warrant was not supported byadequate probable cause and was overbroad. Consistent with my opinionin _Synkote Paint Co._, OSHRC Docket No. 83-0002 (August 27, 1986), Iwould suppress the evidence obtained under the warrant.As Commissioner Wall correctly points out, numerous courts of appealshave directed the Commission to rule on challenges to the probable causeshowing for an inspection warrant once statutory review proceedings havecommenced. The courts have not stated that any challenges to thevalidity of a warrant are to be raised before the Commission merely tobe preserved for appellate review pending the development of a factualrecord by the Commission. Rather, the case law now clearly holds thatsuch challenges are not only to be raised but are also to be heard andresolved 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 warrantin 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 obtaina warrant by showing (1) specific evidence of an existing violation, or(2) that \”reasonable legislative or administrative standards forconducting an inspection are satisfied with respect to a particularestablishment.\” 436 U.S. at 320.The affidavit for the warrant at issue here asserts two grounds for aninspection of Penn Steel’s facility. The first asserted ground is theneed to conduct a follow-up inspection to verify the validity of PennSteel’s claim that it could not feasibly abate prior violations forexcessive noise, silica dust, and nuisance dust. This portion of theaffidavit is sufficient under _Barlow’s_ to establish probable cause toconduct an inspection based on specific evidence of an existingviolation. _Pelton Casteel, Inc. v. Marshall_, 588 F.2d 1182 (7th Cir.1978). Had the warrant and ensuing inspection been limited to matterspertaining to noise and dust, they would pass constitutional muster. _See_ my opinion in _Synkote Paint_, _supra_ (warrant must be properlytailored to the probable cause showing for its issuance). However, thewarrant authorized, and the Secretary conducted, a general orwall-to-wall inspection of the entirety of Penn Steel’s premises. Inthis respect the warrant was clearly overbroad in scope because therewas no probable cause shown for a general inspection of Penn Steel’spremises. _Barlow’s_ and its progeny require that an application for awarrant based on a general administrative plan for the enforcement ofthe Act must demonstrate both that a reasonable legislative oradministrative inspection program exists and that rational and neutralcriteria were used to select the particular employer for an inspectionunder this plan. _In_ _re Establishment Inspection of NorthwestAirlines, Inc_., 587 F.2d 12, 13-14 (7th Cir. 1978); _In reEstablishment Inspection of_ _Pfister & Vogel Tanning Co_., 493 F. Supp.351, 354 (E.D. Wis. 1980). The affidavit for the warrant here simplystated:The purpose [in addition to the follow-up inspection for conditionspreviously cited] was . . . to conduct the inspection pursuant to OSHA’sNational Emphasis Program for Foundries.. . The National Emphasis Program (hereinafter \”NEP\”) was established in1976 to reduce hazards in industries reporting a higher than averagerate of injuries and illnesses. The first target industries selected byNEP were iron and steel foundries and aluminum, bronze, brass and coppercasting and metal stamping plants. Foundries reported a 1973 illnessand injury rate of 26.6 per 100 workers as compared to the nationalaverage of 8.8.Assuming without deciding that this limited description of the NEPprogram is sufficient to establish a reasonable administrative planunder _Barlow’s_, _supra_, the affidavit plainly fails to set forth anybasis whatever for the selection of Penn Steel’s worksite for aninspection pursuant to the NEP.[[2]] The affidavit states simply thatPenn Steel was selected for an inspection pursuant to the plan; it doesnot describe the procedure followed in the selection of Penn Steel for ageneral inspection under the NEP. Was it by lot? Was it at random? Was it by design? If by design, what were the facts underlying thepurposeful 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 toPenn Steel’s selection under the NEP we cannot determine whether theselection of Penn Steel as opposed to any other foundry for a generalinspection under the NEP was \”a reasonable exercise of discretion forthe area administrator.\” _In re Establishment Inspection of UrickProperty_, 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 onother grounds_, 592 F.2d 1369 (5th Cir. 1979) (where individualizedinformation is available, nationwide statistics do not establishsufficient probable cause to justify the selection of particularfoundries for inspection under the foundry NEP). Since probable causefor a general inspection under the NEP was not established, the warrantshould have been limited in scope to the particular violative conditionsfor which the Secretary was seeking a follow-up inspection. _SarasotaConcrete_, _supra_, 693 F.2d at 1068-70 (11th Cir. 1982); _Marshall v.North American Car_ _Corp_., 626 F.2d 320, 324 (3d Cir. 1980); _Marshallv. 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 andissued citations consisting of almost 300 separate violations formatters as diverse as failing to instruct employees in how to safelylift heavy objects, failure to properly enclose electrical equipment,and, as the lead opinion points out, failure to properly guardwoodworking machinery in the pattern shop. Quite clearly the Secretaryconducted far more than merely a follow-up inspection for noise and dustviolations, and his inspection went well beyond any open and obvioushazards that arguably might have been detected during a properly limitedfollow-up inspection. Since there was no probable cause for aninspection 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 underthe invalid warrant.Commissioner Wall holds that even if there was not probable cause for ageneral inspection, the \”good faith\” exception of _United_ _States v.Leon_, 468 U.S. 897 (1984), applies here to excuse this broad invasionof Penn Steel’s privacy. However, I believe that _Leon_, a criminalcase, is founded on different considerations than exist in an OSHAwarrant case and should not be used to justify the incredibly detailedinspection that took place in this case. The use of evidence incriminal cases is vastly different than in civil cases before theCommission under the Act. The distinctions are well-stated by ChairmanBuckley 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 Buckleyexplained, the suppression of evidence normally will defeat the punitivepurposes of the criminal law because evidence of a crime, oncesuppressed, usually cannot be recovered. Different considerations applyin cases under the Act, however, because the purposes of the Act are notpunitive but rather remedial. Thus, the Act is intended to achieve safeand healthful working conditions through the elimination of recognizedhazards and compliance with standards promulgated under the Act. AsChairman Buckley has accurately stated,If evidence from an unlawful OSHA inspection is suppressed, theSecretary can seek to obtain similar evidence from a subsequent, validinspection or by other means. See section 8(b) of the Act, 29 U.S.C. ?657(b) (Secretary has authority to issue subpoenas in investigatingpossible violations of the Act). If conditions in the employer’sworkplace have changed to the extent that evidence of a violation nolonger exists, then any violation has ceased to exist, and the Secretaryhas achieved the result he sought by initiating the enforcement action. If conditions have not changed, the Secretary can reacquire the evidenceby lawful means. He will have lost some time and resources, but inmany cases the lost time and resources will be less than he would expendin litigation arising from questionable inspection practices. In anyevent, the cost of suppression is much less than it is in criminal cases.This distinction between criminal and civil proceedings was emphasizedby the Eleventh Circuit in affirming the Commission’s refusal to apply agood faith exception in _Sarasota Concrete_, _supra_. _See_ 693 F.2d at1072. 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 becauseit creates a clear incentive to the Secretary to conduct OSHAinspections in accordance with the fourth amendment. I see no reason todisregard our prior decision in _Sarasota Concrete_, as Chairman Buckleydoes by refusing to decide these constitutional warrant issues, and asCommissioner Wall does by applying a good faith exception in the presentcast. On the other hand, the effect of the majority’s ruling will be tounnecessarily encourage sloppy warrant applications and overbroad OSHAinspections.Even if the good faith exception did apply to our proceedings, I cannotfind the Secretary to have acted in good faith here. Although thewarrant here predates the Supreme Court’s decision in _Barlow’s_, theCourt had held as far back as _Camara v._ _Municipal Court_, 387 U.S.523, 538 (1967), that in order to establish probable cause for anadministrative warrant there must be \”reasonable legislative oradministrative standards for conducting an area inspection . . . withrespect to a particular dwelling.\” _See_ _In re EstablishmentInspection 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 Secretaryapplied for the warrant in this case a number of courts had specificallyapplied _Camara_ to OSHA inspection warrants. _See_ the three-judgedistrict 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_, 407F.Supp. 154 (E.D. Tex. 1976); and the district court opinion in _Useryv. 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 CCHOSHD ? 20,914 (N.D. Ohio 1976) (probable cause standards appropriate toadministrative searches apply to inspections under the Act). Thus, theSecretary should have been aware of the need to demonstrate why heselected Penn Steel for inspection under the NEP. Similarly, as Iobserved in _Synkote Paint_, _supra_, the principle that a warrant mustbe properly tailored to the probable cause basis for its issuance is afundamental rule of fourth amendment law of which we may reasonablyexpect the Secretary’s agents to be aware. Therefore, in my view theSecretary could not have reasonably believed that the warrantauthorizing a general inspection of Penn Steel’s worksite was valid.The underlying basis of the majority’s decision is its reluctance toallow Penn Steel to escape the settlement agreement. I share thisreluctance.[[4]] However, I believe that when the question of thelegality of the inspection warrant and the inspection is raised, as itis here, we are required by the precedent I have noted to decide theseconstitutional issues. If the warrant or inspection is unconstitutionalor otherwise invalid, our obligation to protect the rights guaranteed bythe fourth amendment requires that we suppress the evidence obtainedduring the inspection regardless of our dislike for setting aside thesettlement agreement. _See_ _Sarasota Concrete_, _supra_, 9 BNA OSHCat 1615, 1981 CCH OSHD at p. 31,533._Barlow’s_, _supra_, reaffirms that the determination of thereasonableness of a particular OSHA inspection is to be made by themagistrate, not the Secretary. The application for a warrant musttherefore set forth sufficient information to enable the magistrate tomake an independent determination of probable cause. In this case theaffidavit should have described how Penn Steel was selected forinspection under the NEP. _Gretna Machine & Ironworks_, _supra_, 769F.2d at 1114. The Secretary could easily have described his selectionprocess in the affidavit, if in fact the selection of Penn Steel wasdone in a neutral manner under the NEP. He has certainly done so inother 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 (9thCir. 1980) (\”detailed explanation\” of inspection plan describing howindividual employers are selected for inspection); _Reynolds Metals Co.v. Marshall_, 442 F. Supp. 195 (W.D. Va. 1977). His failure to do sohere contravenes the clear teaching of _Barlow’s_ and its progeny. Accordingly, I would vacate all the citations issued to Penn Steel sincethose citations arise from an illegal inspection.————————————————————————SECRETARY OF LABOR,Complainant,v.PENNSYLVANIA STEEL FOUNDRY &MACHINE COMPANY,Respondent.DOCKET NO. 78-0638APPEARANCESMichael D. Shapiro, Esq.For ComplainantRobert D. Moran, Esq.For RespondentMary Win-O’Brien, Esq.For Employees_FINAL DECISION AND ORDER_Chalk, Judge:IThis protracted case involves some 300 separate charges (items andsubitems), involving four separate hearing sessions dating back toJanuary 1979. These hearing sessions were interspaced with recessesrequested by the parties to enable them to conduct settlement sessionsand, on one occasion, to permit me to resolve a renewed motion byRespondent, after receipt of briefs of all parties, to suppress all theevidence in the case after the Commission, on July 17, 1979, reversedits prior decisions that it lacked jurisdiction to adjudicate thevalidity of search warrants issued by United States District Courts (seeSecretary v. Chromalloy American Corp., 79 OSAHRC 55\/D11, Docket No.77-2788).During one of the hearing sessions convened on December 5, 1979, theparties requested permission to conduct a full hearing limited to 58 ofthe 300 charges, those they believed they could not settle, expressingtheir expectation that it would enable them to settle the remainder ofthe case. Thereafter, on June 27, 1980, I issued a preliminary orinterlocutory decision which served to advise the parties of my futuredisposition of each of the 58 charges when this final decision and orderwas issued. That preliminary decision, attached hereto, is incorporatedherein, made a part hereof, and each disposition specified therein willbe fully implemented herein.Although the parties, in the partial settlement agreement they have nowfiled, have reserved unto themselves the right to seek relief at theCommission and Circuit Court levels from the disposition of those 58charges specified in the preliminary decision, as implemented herein,they already have that right as a matter of law under the provisions ofthe 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 toenable them to resume settlement negotiations. The hearing was neverreconvened as the parties advised me informally on January 23, 1981 thatthey had settled all remaining charges alleged in the citations, otherthan 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, 45athrough 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 toallege other than serious violations, affirmed._B_The partial settlement agreement filed by the parties on June 18, 1981is approved, the motions contained therein are granted, and Respondent’snotice of contest to the items (or subitems) affirmed in accordance withsaid agreement is dismissed._Citation Number 1_ (Serious)Items 1, 4 through 8, 11, 12, 15, 18, 19, 20(h), 20(i), 20(k) through20(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, 32through 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 – VacatedItems 1 through 7, 9through 15, and 17through 25 – Affirmed.An aggregate penalty of $5,000 is assessed for the items (or subitems)of Citation number 1 for serious violations affirmed as seriousviolations, as provided for in both the preliminary decision and thepartial settlement agreement and for the affirmed items of Citationnumber 2, as modified, and for items 1, 3, 4, 6, 13 and 20 of Citationnumber 3 for other than serious violations, the latter two citations asprovided for in the partial settlement agreement.Respondent will comply with the abatement provisions of paragraphs 3 and4 of the partial settlement agreement and the respective parties willadhere to the agreements reached in paragraphs 5 through 10 thereof.So ORDERED.JOSEPH L. CHALKJudge, OSHRCDated: July 13, 1981Hyattsville, Maryland.FOOTNOTES:[[1]] The issues the parties were instructed to address in theirsupplemental briefs were:If the Secretary’s regulation at 29 C.F.R. ? 1903.4 required notice andhearing on the warrant application, did the Secretary’s conduct inobtaining the warrant _ex_ _parte_ violate the employer’s right to dueprocess of law under the Fifth Amendment? What is the effect of theSupreme Court’s holding in _Accardi v. Shaughnessy_, 347 U.S. 260(1954), on this issue? What is the effect of the Supreme Court’sholding in _United States v. Caceres_, 440 U.S. 741 (1979), on this issue?If the Secretary’s conduct in obtaining the warrant _ex_ _parte_ didviolate 29 C.F.R. ? 1903.4, what is the proper remedy under the FifthAmendment?Does the \”good faith\” exception of _United States v. Leon_, 104 S.Ct.3405 (1984), apply to violations of due process rights under the FifthAmendment?Whether the decision of the United States Court of Appeals for the ThirdCircuit 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 obtainingthe warrant _ex_ _parte_ violated the employer’s right to due process oflaw under the Fifth Amendment, what effect, if any, does that have onthe validity of the settlement agreement approved by the Judge on June23, 1981?Whether the terms of the June 23, 1981, settlement agreement requirethat the agreement be voided if the Commission alters Judge Chalk’sdecision.[[2]] Before the oral argument, the parties were instructed toconcentrate their arguments on the following two questions:(1) If the Secretary’s regulation at 29 C.F.R. ? 1903.4 required noticeand hearing on the warrant application, did the Secretary’s conduct inobtaining the warrant _ex_ _parte_ violate the employer’s right to dueprocess of law under the Fifth Amendment? If so, does the due processviolation require vacation of the citations or suppression of theevidence resulting from the inspection?(2) If the Commission concludes that the Secretary’s conduct inobtaining the warrant _ex_ _parte_ violated the employer’s right to dueprocess of law under the Fifth Amendment, what effect, if any, does thathave on the validity of the settlement agreement approved by the Judgeon June 23, 1981?[[3]] The questions of the validity of the inspection and whether PennSteel should be allowed to withdraw from the settlement agreement werenot stated in the directions for review. On review, the Secretaryargues that the Commission therefore does not have any of these issuesbefore it. However, that issues in a case were not included in adirection for review does not preclude the Commission from consideringthem. Once a case is directed for review, the Commission may considerany 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 reviewof issues tendered by the parties. We decline to review certainadditional issues that were mentioned by Penn Steel in its initialreview 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 governsretroactivity in civil cases, should be applied to Fourth Amendmentquestions. 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 thequestion did not find that the language of _Barlow’s_ and the eventsthat precipitated it suggested that OSHA lacked the authority to seekwarrants _ex_ _parte_. The majority of the circuit courts have heldthat the Secretary had authority to obtain _ex_ _parte_ warrants undersection 1903.4 as originally promulgated. _Donovan v. Red Star MarineServices, 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.2d626, 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_., 645F.2d 288 (5th Cir. 1981), has agreed with the holding of the ThirdCircuit in _Cerro_. In addition, the Commission has held that theSecretary was empowered under the original version of section 1903.4 toobtain _ex_ _parte_ warrants. _Davis Metal Stamping_, 10 BNA OSHC at1747, 1982 CCH OSHD at p. 32,900.[[7]] The reasonableness of OSHA’s interpretation is also supported bythe fact that it was later accepted by the Commission and a majority ofthe 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, 81-1762and 81-2089, 1985); _Smith Steel Casting Co_., 85 OSAHRC, ______, 12 BNAOSHC 1277, 1985 CCH OSHD ? 27,263 (Nos. 80-2069 and 80-2322, 1985)_appeal filed_, No. 85-4346 (5th Cir. May 21, 1985); _Thermal ReductionCorp_., 85 OSAHRC __________, 12 BNA OSHC 1264, 1985 CCH OSHD ? 27,248(No. 81-2135, 1985); _Davis Metal Stamping_, 12 BNA OSHC at 1261, 1985CCH OSHD at p. 35,156; _Brooks Woolen_, 12 BNA OSHC at 1233, 1985 CCHOSHD 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 theSouthwest, 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 proceedingscommenced before the Review Commission, a majority of courts have heldthat the district courts should refrain from considering furtherchallenges to the validity of the warrant. Rather, the matter should beconsidered by a court of appeals after a full factual record has beendeveloped 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 anArticle 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, onlyconsistent with this authority, can the Commission consider claims thatevidence should be suppressed because of an invalid inspection. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c); _Babcock & Wilcox_, 610F.2d at 1136; _see_ _also_ _Establishment_ _Inspection of the Metal Bankof Am., Inc_., 700 F.2d 910 (3d Cir. 1983); _Baldwin Metals_, 642 F.2dat 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_, 710F.2d 673 (10th Cir. 1983), _cert. denied_, 464 U.S. 1041 (1984), _MetalBank_, 700 F.2d at 914; _Donovan v. Sarasota_ _Concrete Co_., 693 F.2d1061, 1066 (11th Cir. 1982); _Babcock & Wilcox_, 610 F.2d at 1136-1137;_In re Inspection of Central Mine_ _Equipment Co_., 608 F.2d 719 (8thCir. 1979); _Bethlehem Steel Corp. v. OSHRC_, 607 F.2d 871 (3d Cir.1979); _In re Worksite_ _Inspection of Quality Products, Inc_., 592 F.2d611 (1st Cir. 1979).[[11]] Paragraph 9 of the Application for the warrant described theFoundry NEP in the following way.The National Emphasis Program (hereinafter \”NEP\”) was established in1976 to reduce hazards in industries reporting a higher than averagerate of injuries and illnesses. The first target industries selected byNEP were iron and steel foundries and aluminum, bronze, brass and coppercasting and metal stamping plants. Foundries reported a 1973 illnessand injury rate of 26.6 per 100 workers as compared to the nationalaverage of 8.8.NEP inspections are conducted by teams of safety officers and industrialhygienists. NEP inspection teams are not limited to identifyingviolations as during ordinary inspections, but are also required toprovide foundry operators with technical assistance by evaluating unsafeconditions and practices, identifying abatement methods and techniques,establishing or maintaining safety and health programs and providing adetailed evaluation of the employer’s safety program.The NEP goal is to achieve a significant reduction in the incidence ofoccupational injuries and illnesses due to hazards in the foundryindustry. NEP functions such as consultation, training and education,evaluation and compliance monitoring are essential to the achievement ofhis goal.[[12]] As our discussion indicates, Penn Steel’s statement in itsinitial review brief that it withdraws from the settlement agreement isto be treated as a motion to withdraw which may be granted or denied bythe Commission. As such, the request to withdraw should have beenpresented to the Commission in the form of a motion, filed separatelyfrom the brief. _See_ _McWilliams Forge Co_., 84 OSAHRC, 11 BNA OSHC2128, 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 themotion stated in it, the Commission had not yet issued McWilliams Forgedisapproving the practice of incorporating motions in briefs.[[13]] We acknowledge that Penn Steel did not raise the preemption issueand that we are raising section 1910.215(b)(6) in this litigation forthe first time. We have done so because the preemption of section1910.212(a)(1) by section 1910.215(b)(6) became plainly evident as wereviewed the evidence as to these items and items 53(a) and (e), whichallege violations of section 1910.215(a)(2). Ordinarily, we wouldafford the parties the opportunity to brief this issue. In this case,however, the parties have already submitted lengthy supplemental briefsand have argued the case orally. In view of the age of the case, and inthe interest of judicial economy, we will dispose of this item on theexisting 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 anemployee to injury, shall be guarded. The guarding device shall be inconformity with any appropriate standards therefor, or, in the absenceof applicable specific standards, shall be so designed and constructedas to prevent the operator from having any part of his body in thedanger zone during the operating cycle.[[15]] We have considered whether section 1910.212(a)(3)(ii) ispreempted 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 item46(a) is not sufficient for us to decide whether these more particularstandards 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 tomaintain proper alignment with the wheel, and the strength of thefastenings 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 verticalportable grinders shall have a maximum exposure angle of 180?, and theguard shall be so located so as to be between the operator and the wheelduring use. Adjustment of guard shall be such that pieces of anaccidentally 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 aguard 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 fourthamendment cases are generally to be applied retroactively unless theyare a \”clear break with the past.\” _Barlow’s_ was not a clear breakwith the past, but, rather, was the culmination of a long line ofadministrative search cases beginning as far back as _Camara v.Municipal Court_, 387 U.S. 523 (1967) and _See v. City of Seattle_, 387U.S. 541 (1967). Indeed, the holding in _Barlow’s_ was \”clearlyforeshadowed.\” _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 CCHOSHD ? 26,309 (Nos. 81-55 & 81-56, 1982) (retroactive application to begiven to the Commission decision in _Sarasota Concrete Co._, 81 OSAHRC48\/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 warrantdoes not exist).[[2]] In this respect the present affidavit is remarkably similar to theaffidavit that was struck down in _Barlow’s_ because there were \”nofacts 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_ isdirectly on point. There, as here, there was \”no recital of a rationalbasis for the selection\” of the particular foundry to be inspected underthe NEP, and it is entirely possible that the selection of Penn Steelfor a general inspection under the NEP was as arbitrary as the courtfound the selection of Urick to be. Commissioner Wall’s justificationof the present warrant is based on Penn Steel’s previous violations andthe fact that foundries may be dangerous places to work. Thisreasoning begs the question. If the probable cause for the warrant wasPenn Steel’s previous violations, then the warrant should have been solimited. If a broad, wall-to-wall inspection was really due at thattime under the NEP, then the warrant application should have describedhow Penn Steel was selected pursuant to the NEP. Since the warrantapplication failed to describe the selection process, the warrant herefails for precisely the same reasons as in _Urick Property_.[[4]] My personal view is that if a party enters into a settlementmerely to avoid the expense of litigating factual issues because hebelieves that the case is controlled by a question of law and intends toseek review on that question of law, he should make it clear that thatis the reason, or at least one reason, for his agreement to the settlement.”