“Docket No. 78-0638 SECRETARY OF LABOR, Complainant, v. PENNSYLVANIA STEEL FOUNDRY & MACHINE COMPANY, Respondent. UNITED STEELWORKERS OF AMERICA, AFL-CIO, Authorized Employee Representative.OSHRC Docket No. 78-0638DECISIONBEFORE:\u00a0 BUCKLEY, Chairman; RADER and WALL,Commissioners.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).I.\u00a0 BackgroundIn August 1977, a warrant was issued upon an exparte application, empowering OSHA \”to conduct an inspection pursuant toOSHA’s National Emphasis Program for Foundries\” (\”Foundry NEP\”) of theHarrisburg, Pennsylvania foundry of the Pennsylvania Steel Foundry & Machine Company(\”Penn Steel\”).\u00a0 The warrant authorized OSHA to inspect the foundry\”in accordance with the guidelines\” set forth in the Foundry NEP.A team of OSHA compliance officers inspected the PennSteel facility for nearly a month.\u00a0 As a result of the inspection, the Secretaryissued three citations alleging 298 violations of OSHA standards.\u00a0 Penn Steelcontested all of the alleged citation items.Protracted settlement discussions ensued. \u00a0Eventually, the parties agreed to litigate some of the citation items while continuing totry to settle the case.\u00a0 In January 1979, Administrative Law Judge Joseph Chalk heardevidence on the 58 citation items that the parties could not agree upon during theirsettlement discussions.\u00a0 The hearings on the 58 items closed and the parties,including the United Steelworkers of America, continued their settlement discussions.In August 1979, Penn Steel moved for summary judgmentclaiming that the warrant authorizing the inspection was invalid on two grounds: \u00a0that it was not based on probable cause, citing Marshall v. Barlow’s, Inc., 436U.S. 307 (1978); and that warrants could not be issued ex parte, citing CerroMetals Products v. Marshall, 467 F. Supp. 869 (E.D. Pa. 1979), aff’d, 620 F.7d964 (3d Cir. 1980).\u00a0 In Barlow’s, the Supreme Court held that a search of abusiness under the Occupational Safety and Health Act could not be conducted without awarrant supported by probable cause.\u00a0 In Cerro, the Eastern District Court ofPennsylvania held that ex parte warrants were not permissible under thethen-existing version of 29 C.F.R. ? 1903.4, a regulation governing OSHA’s resort tosearch warrants.\u00a0 Both Barlow’s and Cerro were decided after theinspection of the Penn Steel foundry.\u00a0 Judge Chalk denied the motion for summaryjudgment, stating that he would not apply the Barlow’s or Cerro casesretroactively.The parties continued their settlement negotiationsand in June 1980, Judge Chalk issued a preliminary decision.\u00a0 In the preliminarydecision, Judge Chalk addressed the 58 citation items on which evidence was presented andaffirmed some of the citation items and vacated others.\u00a0 A year later, the partiessettled the remaining items and agreed in a settlement agreement that Judge Chalk’sdisposition of the 58 citation items set forth in his preliminary decision would takeeffect.\u00a0 In July 1981, Judge Chalk issued his final decision.\u00a0 It incorporatedby reference and implemented his preliminary decision and the settlement agreement.Both parties petitioned the Commission forreview.\u00a0 In its petition, Penn Steel repeated its contention that the\”inspection was invalid because it was conducted pursuant to a warrant issued on an exparte basis and without probable cause and that all evidence collected during saidinspection should have been suppressed.\”\u00a0 Penn Steel also petitioned for reviewof a number of citation items disposed of by Judge Chalk, but did not seek review of thesettlement agreement.\u00a0 The Secretary petitioned for review of only three citationitems that were vacated by the judge.Former Commissioner Cottine directed review on theissues contained in the Secretary’s petition for review, including:(1) Whether the Judge erred in vacating Citation No.1, items 45(g) and (h) alleging noncompliance with 29 C.F.R. ? 1910.212(a)(1) on thegrounds that \”there was no evidence that the grinders have been operated within thestatutory period or that when operated, they presented a hazard [to] employee; operatingthem.\”(2) Whether the Judge erred in vacating Citation No.1, item 46(a) alleging noncompliance with 29 C.F.R. ? 1910.212(a)(3)(ii) on the groundsthat guarding of the cited machine was impossible and the alternative method of protectionwas not required by the standard.Former Chairman Rowland also added the followingissues:Whether the judge erred in finding [Penn Steel] inviolation of the Act as alleged in the following items of citation No. 1:\u00a0 items 50,53(a), 53(e), 63a(a), and 63a(b).Supplemental briefs were requested and the parties were asked to address several moreissues.[[1]]\u00a0 Oral argument was held before the Commission on March 26, 1986.[[2]]The questions before the Commission involve whether evidence should be suppressed becausethe inspection under the warrant was invalid, whether Penn Steel should be allowed towithdraw from the settlement agreement, and the merits of a few litigated citationitems.[[3]]\u00a0 For the reasons that follow, we hold that the evidence should not besuppressed, that judgment on the 240 unlitigated citation items should be entered inaccordance with the settlement agreement, and that Judge Chalk’s decision as to severallitigated citation items should be affirmed as to some and reversed as to others.II.\u00a0 Validity of the Inspection; Suppression of Evidence.Penn Steel argues that the inspection was invalidbecause OSHA proceeded contrary to its regulation in obtaining an ex partewarrant.\u00a0 At the time of the inspection of the Penn Steel foundry in August 1977, theregulation governing OSHA inspections in the face of an employer’s objection, 29 C.F.R. ?1903.4, stated in part:? 1903.4 Objection to inspection.(a) Upon a refusal to permit a Compliance Safety andHealth Officer, in exercise of his official duties, to enter without delay and atreasonable times any place of employment . . . [t]he Compliance Safety and Health Officershall endeavor to ascertain the reason for such refusal, and shall immediately report therefusal and the reason therefore to the Area Director.\u00a0 The Area Director shallconsult with the Regional Solicitor, who shall take appropriate action, includingcompulsory process, if necessary.(Emphasis added.)\u00a0 In Cerro Metal Products v.Marshall, 620 F.2d 964 (3d Cir. 1980), the Third Circuit held that the originalversion of this regulation did not permit OSHA to seek a warrant in an ex parteproceeding.\u00a0 Penn Steel contends that the Commission must apply the holding of Cerroto this case because it arises within the Third Circuit, and that the evidence gainedthrough the inspection should therefore be suppressed.\u00a0 Penn Steel also argues thatthe evidence should be suppressed for various other reasons.A.\u00a0 RetroactivityEven if the warrant here would be declared invalid bythe Third Circuit under Cerro, the question of retroactivity must be considered.\u00a0 Indeciding whether a decision construing the Fourth Amendment should be appliedretro-actively, the Commission has been guided by United States v. Johnson, 457U.S. 537 (1982).\u00a0 See Carl M. Geupel Construction Co., 82 OSAHRC 60\/B5,10 BNA OSHC 2097, 2100 n.7, 1982 CCH OSHD ? 26,309, p. 33,282 n.7 (Nos. 81-55 and 81-56,1982).[[4]]\u00a0 In Johnson, the Court reviewed the question of retroactivity andfound that Fourth Amendment cases were generally applied retroactively unless the case wasa \”clear break with the past.\”\u00a0 Johnson, 457 U.S. at 549.\u00a0 TheCourt stated that a decision was not generally considered a \”clear break\” unlessthat ruling caused \”such an abrupt and fundamental shift in doctrine as to constitutean entirely new rule which in effect replaced an older one,\” . . . . Such a break hasbeen recognized only when a decision explicitly overrules a past precedent of this Court,. . . or disapproves a practice this Court arguably has sanctioned in prior cases, . . .or overturns a longstanding and widespread practice to which this Court has not spoken,but which a near-unanimous body of lower court authority has expressly approved.457 U.S. at 551 (citations omitted).This case does not fall neatly into two of thenon-retroactivity categories in Johnson.\u00a0 Cerro did not overturn ordisapprove of a line of OSHA case law that had endorsed the seeking of an OSHA inspectionwarrant ex parte.\u00a0 As far as case law was concerned, Cerro wroteon an almost clean slate.\u00a0 This case instead falls within the category of casesinvolving an arguably-sanctioned practice–the seeking of warrants ex parte.When the warrant in this case was issued in August of1977, no court had disapproved of OSHA’s practice of seeking some inspection warrantswithout the participation of the party to be inspected.\u00a0 Indeed, when the warrant wasissued, even the requirement for OSHA to seek a warrant was still uncertain. \u00a0 TheSupreme Court’s decision in Barlow’s, holding for the first time that a warrantlesssearch of a business under the Occupational Safety and Health Act violated the FourthAmendment, was decided almost a year later.\u00a0 The body of OSHA inspection warrant lawthat was then evolving tended, however, to look to the model of the criminal searchwarrant for guidance on how to proceed.\u00a0 Yet, criminal search warrants had been exparte as a rule.\u00a0 As the Supreme Court noted in Franks v. Delaware, 438U.S. 154, 169 (1978), \”[t]he pre-search proceeding is necessarily ex parte,since the subject of the search cannot be tipped off to the application for a warrant lesthe destroy or remove evidence.\”This practice would seemingly have fit theOccupational Safety and Health Act well, for the Act imposes criminal penalties for givingadvance notice of inspections and the Secretary’s regulations also forbade such advancenotice.\u00a0 Section 17(f) of the Act, 29 U.S.C. ? 666(f); 29 C.F.R. ? 1903.6 (1977).\u00a0 The language of section 1903.4, the regulation that was critical to the Cerrodecision, did not expressly require that adversary process be employed.\u00a0 As thedistrict court noted in Cerro, the phrase \”compulsory process\” in the regulationencompasses ex parte warrants.\u00a0 467 F. Supp. at 875 n.9.\u00a0 And asthe Commission later observed, and the facts of this case suggest, OSHA, as a practicalmatter often–though by no means always, had sought warrants ex parte.[[5]]\u00a0 \”That the OSHA field staff may frequently have sought inspection warrants exparte there seems no reason to doubt.\”\u00a0 Cerro, 467 F. Supp. at874.The holding of Cerro that the original version of section 1903.4 did not authorizeOSHA to seek warrants ex parte was compelled not by the language of section1903.4 or by a universal practice by OSHA of seeking warrants through adversary process,but by passages in the Supreme Court’s Barlow’s opinion.\u00a0 The Cerro courtsnoted that this language, which post-dated the issuance of the warrant here by almost ayear, was precipitated by the litigating position of the Solicitor General before theCourt.\u00a0 The Cerro courts viewed that litigating position as having representedto the Supreme Court that section 1903.4 did not permit ex parte warrants.\u00a0 See 620 F.2d at 976; 467 F. Supp. at 875 n.9.\u00a0 However, this litigationposition did not emerge with clarity until after the warrant in this case was issued. TheSolicitor General’s brief to the Court in Barlow’s did not at all suggest thatsection 1903.4 required adversary process.\u00a0 Only a hint of the position came in theSolicitor General’s jurisdictional statement, which urged the Court to note probablejurisdiction of the appeal in Barlow’s.\u00a0 Although the jurisdictionalstatement, which was filed on February 17, 1977, stated in a footnote that \”[a]gencyregulations currently require the Secretary to obtain a court order authorizing entry ifthe inspector is initially refused entry,\” the text on the same page stated that itis \”common\”–rather than universal–in civil warrant practice to issue a showcause order to the employer before compulsory process is obtained.\u00a0 Statement ofJurisdiction at 11 & n.13.\u00a0 The Solicitor General’s position before the Courtthat adversary process was the rule became clear only during oral argument on January 9,1977, over four months after the warrant in this Penn Steel case was issued.\u00a0 SeeCerro, 620 F.2d at 976-7 n.33 (noting text of oral argument).\u00a0 In short, wecannot say that the OSHA field officials who sought this warrant would have had sufficientgrounds to conclude from the predecisional events in Barlow’s that section 1903.4did not permit warrants to be sought ex parte.\u00a0 We therefore concludethat the Barlow’s decision, as applied by the Cerro courts, did overturn apreviously unquestioned and well-grounded practice and that events that preceded the Barlow’sdecision did not evince disapproval of the common practice of seeking ex partewarrants.[[6]] Accordingly, we do not apply Cerro retroactively here.B.\u00a0 Suppression as a RemedyIn any event, if Cerro were appliedretroactively, we would not exclude the evidence gathered during the inspection.\u00a0 Incriminal cases, the exclusionary rule is applied only where the benefits of suppressionoutweigh the cost of preventing the use of relevant evidence in law enforcementproceedings.\u00a0 United States v. Leon, 104 S.Ct. 3405, 3412-13 (1984).\u00a0 Inthis case, we are dealing with an alleged violation of a regulation rather than a FourthAmendment violation, but we believe that a similar balancing test should be employed.\u00a0 See Brooks Woolen Co., 85 OSAHRC , 12 BNA OSHC 1233, 1236, 1985 CCHOSHD ? 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).\u00a0 As the Supreme Court has pointed out, the suppressionof illegally obtained evidence in criminal cases produces the benefit that it deters lawenforcement officers from engaging in misconduct in the future when they are aware thatthe fruits of such misconduct will not be admissible. Leon, 104 S.Ct. at 3418.\u00a0 It is similarly desirable to deter OSHA compliance officers from obtaining evidenceby illegal means. Brooks Woolen, 12 BNA OSHC at 1236, 1985 CCH OSHD at p. 35,151(view of Chairman Buckley).The alleged misconduct here is that OSHA obtained awarrant ex parte.\u00a0 When OSHA did so, however, it did not engage in anyintentional misconduct, but simply implemented a reasonable interpretation of section1903.4.\u00a0 As we discussed above, when OSHA applied for the warrant in the ex parteproceeding involved here, OSHA was following one of its normal practices. Moreover, theregulation on its face did not impose a strait-jacket on OSHA, requiring it to seekwarrants ex parte or not inspect at all.\u00a0 Its language did not limitOSHA to seeking \”compulsory process\” but simply stated that such process isincluded among the \”appropriate action[s]\” to be taken \”ifnecessary.\”\u00a0 The term \”compulsory process,\” which was not defined inthe regulation, does not expressly forbid ex parte warrants.\u00a0 Also, theSupreme Court had not yet expressed the view that the regulation limited OSHA to adversaryproceedings and no federal court had ruled on the question.\u00a0 From this we concludethat OSHA’s Judgment to use an ex parte warrant was not unreasonable inlight of the state of the law at the time.[[7]]\u00a0 Finally, suppression here would havelittle deterrent value, for in 1980 the Secretary amended section 1903.4 to specificallyallow ex parte warrants.\u00a0 See 45 Fed. Reg. 65916-24 (October 3,1980).\u00a0 We therefore do not find that suppression would be an appropriate remedyhere.Commissioner Wall would add that this result would in any event be compelled under Leon.\u00a0 The OSHA officials who applied for this warrant were obviously proceeding in goodfaith reliance on the then-accepted practice of obtaining warrants ex parte.Similarly, in executing the warrant, they relied in good faith on the judgment of aneutral and detached judicial officer that the workplace should be inspected. \u00a0Commissioner Wall also concludes that in view of Leon, the Commission’s holding in SarasotaConcrete 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 exceptionis available must be overruled.C.\u00a0 Due ProcessPenn Steel also argues that its due process rightswere denied because it was denied an adversary hearing required by section 1903.4.\u00a0This is not, however, a case where an individual has reasonably relied on an agencyregulation promulgated for his guidance or benefit and has suffered substantially becauseof a violation of the regulation by the agency.\u00a0 See United States v. Caceres,440 U.S. 741, 752-3 (1979).\u00a0 Here, we are not convinced that Penn Steel reasonablyrelied on receiving an adversary hearing when the Secretary applied for the warrant.\u00a0 As we discussed above, when the Secretary obtained the warrant in 1977 there was nojudicial interpretation of section 1903.4.\u00a0 There were only the plain words of theregulation that the Secretary take \”appropriate action, including compulsory process,if necessary.\”\u00a0 This language is subject to several reasonable interpretations.\u00a0As the district court pointed out in Cerro, 467 F. Supp. at 875 n.9,\”[o]f course, the term ‘compulsory process’ does not have to connote adversaryprocess.\”\u00a0 There was also neither a statute nor a constitutional provisionrequiring an adversary hearing in a warrant proceeding.\u00a0 See Caceres,440 U.S. at 744.\u00a0 It is difficult to see, then, how Penn Steel relied on receiving anadversary hearing in 1977 on the question of the validity of the warrant.\u00a0 That PennSteel never truly expected to receive such an adversary hearing is strongly indicated bythe fact that Penn Steel never contested the ex parte nature of the warrantuntil its motion for summary judgment nearly two years after issuance of the warrant,after the Supreme Court in Barlow’s and the District Court for Eastern Pennsylvaniain Cerro had placed a judicial gloss on section 1903.4.\u00a0 Since Penn Steelcould not have reasonably relied and most likely did not rely on receiving an adversaryhearing when the Secretary applied for the warrant, we find that there was no violation ofPenn Steel’s due process rights.D.\u00a0 Probable Cause; Scope of WarrantPenn Steel argues that the warrant was not based onprobable cause because it was not based on a general administrative plan for enforcementderived from neutral sources, as required by Barlow’s.Chairman Buckley believes that the Commission iswithout authority to consider Penn Steel’s arguments.\u00a0 The Chairman would hold that,because the Commission is an administrative agency within the executive branch of thefederal government, it cannot perform functions committed to the judicial branch andtherefore cannot review a federal magistrate’s decisions about probable cause for or otherlegal authority underlying a warrant.\u00a0 E.g., Phoenix Forging Co., 85OSAHRC ______, 12 BNA OSHC 1317, 1319 1985 CCH OSHD ? 27,256 (No. 82-398, 1985) (view ofChairman Buckley).[[8]]\u00a0 See Babcock & Wilcox v. Marshall, 610 F.2d1128, 1136-37 (3d Cir. 1979) (the Commission cannot \”sit in direct review of thedecision of the magistrate\”); Baldwin Metals Co. v. Donovan, 642 F.2d768 (5th Cir. 1981).\u00a0 See also Muskrat v. United States, 219U.S. 346, 353 (1911) (no executive officer can be \”authorized to sit as a court oferrors on the judicial acts or opinions of [an Article III] court.\”).\u00a0Accordingly, Chairman Buckley believes the Commission cannot consider any of PennSteel’s arguments requesting review of the magistrate’s judgments about the sufficiency ofthe probable cause basis for the warrant, the sufficiency of OSHA’s affidavit citing factsand legal authorities for the warrant, or the existence of legal authority for any of theparticular time or scope provisions of the warrant.\u00a0 Only a federal court can addressthese matters.[[9]]Commissioner Wall would entertain the question of whether there was sufficient probablecause to obtain a warrant to inspect the Penn Steel foundry.\u00a0 The majority of thecourts of appeals that have considered this issue have held that the Commission is aproper forum for the consideration of fourth amendment issues, and that once the statutoryCommission review process has been commenced, any objections to the validity of a warrantmust be raised before the Commission.[[10]]\u00a0 In accordance with this authority, theCommission in Sarasota Concrete Co., 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1981 CCHOSHD ? 25,360 (No. 78-5264, 1981), aff’d, 693 F.2d 1061 (11th Cir. 1982), heldthat an OSHA warrant was overbroad in scope.\u00a0 The Eleventh Circuit expressly affirmedthe Commission’s decision, ruling that the Commission should review the magistrate’sdetermination of probable cause in connection with admitting or excluding evidence in itsown proceeding:[R]eview by OSHRC does not directly affect thesubstance of the magistrate’s determination.\u00a0 As explained by the Third Circuit in Babcock& Wilcox Co.,The Article III objections stressed by Babcocksimilarly mischaracterize the process.\u00a0 The Review Commission will not sit in directreview of the decision of the magistrate.\u00a0 As already indicated, the decision toissue the inspection warrant is complete and cannot be negated.\u00a0 If the challenge israised by Babcock, the problem for the Review Commission will be whether to use theevidence obtained from the inspection.\u00a0 In deciding whether to use the evidence theReview Commission must of course, make its own judgment as to the propriety of thewarrant, but such a determination does not reverse the magistrate’s action, nor does itcontravene a judicial order.\u00a0 The OSHA official would not be in contempt if he wereto decide not to execute a warrant signed by the magistrate, and an administrativetribunal does not flout the authority of the judiciary by refusing to consider evidencethat has been obtained pursuant to a warrant issued by a judge or magistrate.693 F.2d at 1066.In Bethlehem Steel Corp. v. OSHRC, 607 F.2d871, 876 (3d Cir. 1979), the Third Circuit stated that \”[c]onceding, arguendo that anadministrative agency is not ordinarily considered the appropriate forum for theresolution of constitutional claims, we think there are compelling reasons for insistingthat fourth amendment claims for the suppression of evidence in OSHA enforcement cases betendered first to the Commission.\”\u00a0 Because the courts have so clearly directedthat constitutional challenges to OSHA warrants should be ruled on by the Commission,Commissioner Wall would consider whether warrants of a particular scope should haveissued.After examining the application for the warrant,Commissioner Wall would find that there was sufficient probable cause to allow theinspection.\u00a0 In Barlow’s, the Supreme Court held that probable cause for anOSHA inspection could be based on evidence of an existing violation or on the showingthat:\”reasonable legislative or administrativestandards for conducting an . . . inspection are satisfied with respect to a particular[establishment].’\u00a0 Camara v. Municipal Court, 387 U.S. [523], at 538, 87 S.Ct.[1727], at 1736, 18 L.Ed.2d 930 [(1967)].\u00a0 A warrant showing that a specific businesshas been chosen for an OSHA search on the basis of a general administrative plan for theenforcement of the Act derived from neutral sources such as, for example, dispersion ofemployees in various types of industries across a given area, and the desired frequency ofsearches in any of the lesser division of the area, would protect an employer’s FourthAmendment Rights.\”Barlow’s, 436 U.S. at 320-21 (emphasis added).Here, the application for the warrant stated that theinspection was a follow-up inspection \”to determine the validity of [Penn Steel’s]claimed inability to comply with safety and health requirements and to conduct theinspection pursuant to OSHA’s National Emphasis Program for Foundries.\”[[11]] \u00a0A plan similar to the Foundry NEP has been found to be the type of general administrativeplan envisioned by Barlow’s.\u00a0 In In re-Establishment Inspection of Gilbert& Bennett Mfg. Co., 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S.884 (1979), the court found that an inspection made under a warrant obtained on the basisof \”a National-Local plan\” for foundries was supported by probable cause.\u00a0The court stated:. . . the instant warrant was plainly supported byprobable cause in the Camara\/Barlow’s sense since Chromalloy was selected for inspectionnot as the result of the \”unbridled discretion\” of a field agent, but rather,pursuant to \”a National-Local plan\” designed by agency officials for the purposeof reducing the high incidence of occupational injuries and illnesses found in themetal-working and foundry industry.Commissioner Wall believes the same reasoning appliesto the application for the warrant in this case.\u00a0 The Foundry NEP, like the\”National-Local plan\” in Gilbert & Bennett is the kind of generaladministrative plan envisioned by Barlow’s and as such supplies sufficient probablecause for the administrative inspection in this case.Penn Steel argues, however, that In reEstablishment Inspection of Urick Property, 472 F. Supp. 1193 (W.D. Pa. 1979),requires a different result.\u00a0 In Urick, an inspection warrant was sought underthe Foundry NEP.\u00a0 The warrant was quashed because the warrant application stated thatonly one foundry inspection would be conducted in a 17-county area containing at least 11foundries, but the application did not explain why the Urick Foundry was chosen.\u00a0 Thedistrict court therefore could find no rational basis for the selection of the foundry in Urick.Commissioner Wall disagrees with Penn Steel that Urickrequires a finding that the warrant should not have been issued.\u00a0 The warrant herestated a rational basis for choosing Penn Steel.\u00a0 The warrant application recitedthat in 1974, Penn Steel withdrew its contest of a citation alleging employee exposure toexcessive levels of silica dust and iron oxide fumes, and the exposure of employees totoxic materials in their lunch room.\u00a0 In 1974, a follow-up inspection resulted in twomore citations:\u00a0 one alleged a \”repeated\” violation of the silica duststandard at various locations; another alleged employee exposure to excessive sound levelsin two foundries and one shop; another item alleged exposure to excessive levels of inertor nuisance dust and a mixture of air contaminants consisting of copper fume, chromiumfume, nickel fume and iron oxide fume.\u00a0 Penn Steel withdrew its contest of thesecitations also after representing to the Commission’s administrative law judge that theviolations had already been abated or would be abated. \u00a0 After six months, however,Penn Steel claimed in a letter to OSHA that it could not implement controls for dust andnoise.\u00a0 About three months later, an inspection team proceeding under the Foundry NEPwas refused entry into the Penn Steel foundry and a warrant was issued.Unlike Urick, Penn Steel’s history of previousviolations, and its claim that it could not abate, coupled with an emphasis on foundryinspections under the Foundry NEP, furnished the magistrate ample cause to authorize aninspection of the entire foundry.\u00a0 What appears from the warrant is that this foundrymay have been a dangerous place of employment at the time the warrant was sought and thatPenn Steel’s reluctance to implement controls was continuing.\u00a0 Unlike the record in Urick,the record here does not show that OSHA officials had decided that only one inspection ina large geographical area should be conducted.In any event, Commissioner Wall would hold under Leonthat OSHA sought the warrant in good faith and executed it in good faith reliance on thejudgment of the magistrate.E.\u00a0 Scope of InspectionPenn Steel also argues that the inspection exceededthe scope of the warrant.\u00a0 Chairman Buckley joins with Commissioner Wall inaddressing this argument because it calls into question OSHA’s conduct, not that of themagistrate.\u00a0 Penn Steel contends that the inspection of the woodworking machinery inthe pattern shop of the foundry was not authorized by the warrant.\u00a0 Penn Steel arguesthat the assembly, repair, and cleaning of patterns, which the inspection covered, werenot a part of the foundry operations that the warrant authorized OSHA to inspect.The warrant application that OSHA submitted to themagistrate discussed the Foundry NEP and stated that OSHA was seeking this inspectionunder that program.\u00a0 The warrant stated that OSHA compliance officers were\”authorized to enter the…premises…to inspect and investigate in a reasonablemanner and to a reasonable extent, in accordance with the guidelines set forth in the[Foundry NEP]…\” When OSHA conducted the inspection under this warrant, thecompliance officers inspected a number of different departments and areas, including thepattern shop.\u00a0 The citations that were subsequently issued included items allegingviolations in this area.\u00a0 Among other things, the allegations concerned unguarded orimproperly guarded woodworking machinery. This machinery was used to make, repair, andmaintain the wooden patterns for the molds used to make the castings.Penn Steel contends that the fabrication and care ofpatterns is not a foundry operation covered by the Foundry NEP.\u00a0 In support of thiscontention, Penn Steel does not rely on the Foundry NEP directly but on an OSHA programdirective stating \”the compliance policy, requirements, procedures, and instructionsto be followed…for implementing the [Foundry NEP]….\” OSHA Program Directive#200-56, Changes 1 and 2, 1 (1977).\u00a0 The program directive specifies that one maintool in the Foundry NEP for significantly reducing foundry injuries and illnesses will be\”compliance monitoring,\” which will consist of initial inspections followed byscheduled monitoring inspections to assure abatement of hazards.\u00a0 For the purpose ofthis program, the program directive defines \”foundry\” as \”a building,establishment or works where metal castings are produced.\”\u00a0 The term\”casting\” is defined as a \”metal object cast to required shape by pouringor otherwise injecting liquid metal into a mold, as distinct from one shaped by amechanical process.\”\u00a0 In addition, there is a specific definition of\”production area\” which is repeated in an attachment, part of the programdirective, as a definition of the operations to be covered in the initial inspection underthe Foundry NEP.\u00a0 The language of this critical definition is as follows:[T]hose portions of a plant beginning with thereceipt of raw materials, continuing with foundry processes, and terminating with thecleaning, finishing and shipping of the cast parts.\u00a0 Assembly of other parts tofabricate a final product is not included.Id. at 1-2, I-V-3 (emphasis added). \u00a0Penn Steel asserts that the assembly and use of patterns is \”[a]ssembly of otherparts to fabricate a final product\” and that, therefore, under this definition theoperations pertaining to building and maintaining the patterns are not part of the foundryoperations covered by the NEP.\u00a0 In Penn Steel’s view, because the warrant authorizedan inspection only in accordance with the Foundry NEP, inspection of the patternoperations was improper.The program directive does not specify exactly whatis meant by the language on which Penn Steel relies.\u00a0 We have therefore examined theprogram directive and the various attachments to the directive and have concluded that thepattern shop is indeed covered by the Foundry NEP.\u00a0 In several places the directiveand its attachments specifically address problems in pattern shops.\u00a0 In an attachmentabout industrial hygiene and occupational health, there is a \”Guideline of AirContaminants ‘Normally’ Found in Foundry Operations.\”\u00a0 One of the operationareas to which the guideline refers is the \”Pattern Shop Area.\”\u00a0 The aircontaminants listed include wood dust, solvents, plasticizers, and wood preservatives.\u00a0 Id. at I-XIII-1, 13-14.\u00a0 In an appendix relating to identification ofviolations in foundry operations, the OSHA standards governing hazards presented bywoodworking machinery are extensively described and, in the section of this appendixidentifying health hazards and related standards by foundry area and employees exposed,there is a page pertaining to the pattern shop and pattern-makers.\u00a0 Id. atII-1, 72-77, 136.\u00a0 Also, there are forms in the final appendix explicitly requiringinformation about pattern shops.\u00a0 Id. at IV-1, 12, 18, 47.\u00a0 All of thisshows that pattern shops were covered by the Foundry NEP and therefore by the inspectionwarrant.III.\u00a0 The Settlement AgreementPenn Steel argues that it should be allowed towithdraw from the settlement of the 240 unlitigated items it entered into with theSecretary and the United Steelworkers of America.\u00a0 Penn Steel claims, in its brief tothe Commission, that, because the court in Marshall v. Sun Petroleum Products, Inc.,622 F.2d 1176 (3d Cir.), cert. denied, 449 U.S. 1061 (1980), held that theSecretary can withdraw from a settlement agreement at any time, \”[f]airness andjustice require that other parties have the same right.\”\u00a0 Penn Steel alsomaintains that if the Commission alters any of Judge Chalk’s dispositions of the 58litigated items, the settlement is void.\u00a0 Penn Steel also submits that theparticipation of the Union in the settlement negotiations was improper.The Secretary and the Union argue that the settlementis not before the Commission.\u00a0 First, they argue that the settlement is final byoperation of law because Penn Steel did not petition for review of the settlementagreement and the Commission did not direct the issue of the settlement for review. \u00a0Second, they argue that the settlement is, by its own terms, final.We held in Hamilton Die Cast, Inc., 86 OSAHRC________, 12 BNA OSHC 1797, 1986 CCH OSHD ? 27,576 (No. 83-308, 1986), that when theCommission directs any portion of a judge’s report for review, the entire judge’s reportis before the Commission, unless the judge’s disposition of a citation item isspecifically severed and made a final order under Federal Rule of Civil Procedure 54(b).\u00a0 Although some specific citation items were mentioned in the directions for review,the entire case, including the items covered by the settlement agreement, came before theCommission.\u00a0 Therefore, the items covered by the settlement agreement did not becomefinal merely because they were not mentioned in the direction for review.\u00a0 Finally,although the Union had moved for severance of the items covered by the settlementagreement after Penn Steel had argued that the items were not yet final, the Commissiondeferred voting on the motion until it resolved the finality issue; thus, the itemscovered in the settlement have not been severed under Fed. R. Civ. P. 54(b).We also conclude that the settlement agreement hasnot become final by its own terms.\u00a0 In the first paragraph the agreement states:With respect to the citation items covered in the preliminary decision of Judge Joseph L.Chalk dated June 27, 1980, the parties agree that the disposition set forth therein shalltake effect.\u00a0 The preliminary decision will become effective on the date thisstipulation becomes a final order of the Commission.(Emphasis added.)\u00a0 The Secretary and the Unionargue that the term \”a final order of the Commission\” means the date on whichJudge Chalk’s preliminary decision became his final decision.\u00a0 Thus, theSecretary and the Union claim that settlement became final when Judge Chalk incorporatedthe settlement in his final decision, issued June 23, 1981.We cannot agree with the Secretary’s and the Union’sinterpretation of the settlement agreement.\u00a0 Under section 12(j) of the Act, a reportof an administrative law judge becomes \”a final order of the Commission\” only ifno Commissioner directs the case for review.\u00a0 Moreover, for the reasons set forth in HamiltonDie Cast, if a Commissioner directs review of the judge’s report, there is no finalorder of the Commission until the Commission issues a decision in the case.\u00a0Accordingly, this settlement is not final by its own terms.Furthermore, the conduct of Penn Steel, the Secretaryand the Union subsequent to the settlement indicates that they did not consider theagreement to be final.\u00a0 Several sections of the agreement spell out the future dutiesof the parties.\u00a0 For example, paragraph 3(g) states that,During the duration of this agreement, [Penn Steel]will furnish Complainant, through its Harrisburg area director, semi-annual reportsdescribing its progress in obtaining compliance with the foregoing.\u00a0 A copy of eachsuch report will be mailed to Mary-Win O’Brien, Esq., United Steelworkers of America, FiveGateway Center, Pittsburgh, Pennsylvania 15222.Also, paragraph 6 provides,In view of the fact that the costs to [Penn Steel] ofaccomplishing abatement as set forth herein will exceed the $78,300 amount of proposedpenalties, all penalty proposals will be withdrawn and, in lieu thereof, there shall beassessed a single total penalty of $5,000.\u00a0 One-half of this amount shall be paidwithin 10 days of the date this stipulation becomes a final order and the remainder shallbe paid within 12 months thereafter.It appears from presentations of counsel at the oralargument that Penn Steel never submitted the reports required under paragraph 3(g) nor didPenn Steel pay the penalty required under paragraph 6.\u00a0 Despite these omissions byPenn Steel, neither the Secretary nor the Union moved to enforce the terms of thesettlement agreement.\u00a0 At oral argument, counsel for the Union claimed that this wassimply an oversight.\u00a0 However, the failures of both the Secretary and the Union toenforce the settlement agreement also suggests that the Secretary and the Union wereawaiting a subsequent event, namely, a final order of the Review Commission. Moreover, theunion’s motion to sever the settlement agreement, made after Penn Steel moved to withdraw,shows implicit recognition that the settlement agreement would not become final unlesssevered.\u00a0 In view of this and because Penn Steel’s agreement to the settlement wascertainly founded on its view that the finality of the settlement would be postponed, wewill also not consider that the settlement agreement has yet become final.Although we do not believe the settlement is final,the question still remains whether Penn Steel should be allowed to withdraw from thesettlement agreement.\u00a0 Penn Steel claims that it should be allowed to withdraw fromthe agreement because the Secretary can withdraw from a settlement agreement at any timebefore final Commission action.\u00a0 See Marshall v. Sun Petroleum, 622F.2d at 1187.\u00a0 However, the court in Sun Petroleum was careful to point outthat if the Secretary withdrew from a settlement agreement the parties were to be placed\”in the position of status quo ante the issuance of the citation.\” \u00a0This, according to the court, would mean that \”neither the employer nor any affectedemployees will be prejudiced by the unilateral action of the Secretary.\” \u00a0 SunPetroleum, 622 F.2d at 1187.Clearly, the parties could not return to the statusquo ante if Penn Steel was allowed to withdraw from the settlement at thislate date.\u00a0 Rather the Secretary would be severely prejudiced and Penn Steel wouldbenefit greatly from its unilateral withdrawal from the settlement agreement.\u00a0 PennSteel’s motion for withdrawal comes after extensive proceedings, both in terms of the timeconsumed and the record created.\u00a0 The hearing on the merits of the citation items notcovered by the settlement agreement took place long ago, in late 1978 and early 1979, andthe hearings lasted for more than a week.\u00a0 The two hundred and forty items that werenot tried would need to be tried.\u00a0 This would put the Secretary between Scylla andCharybdis.\u00a0 He could prosecute the citations but on the basis of stale evidence.\u00a0 The alternative would be more onerous.\u00a0 The Secretary could reinspect andissue 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 Penn Steel may have madealterations to bring conditions into compliance with OSHA standards, the Secretary wouldhave been deprived of much of his power to encourage timely compliance by seekingcivil penalties for violations discovered at the time of the original inspection. \u00a0Such a choice would undermine the purpose of the civil penalty scheme that Congressestablished and the Commission’s efforts to encourage settlement of disputes among theparties.\u00a0 See Consolidated Edison Co., 81 OSAHRC 9\/B2, 9 BNA OSHC 1267,1981 CCH OSHD ? 25,165 (No. 80-1252, 1981); Commission Rule 100, 29 C.F.R. ?2200.100(a). Finally, we consider it relevant that Penn Steel has attempted to withdrawfrom the settlement at a very late stage of this litigation: the point was raised in itsreview brief.\u00a0 This came, as the settlement says, after \”lengthy negotiationsand litigation that has lasted for a period of 3 years.\”\u00a0 We decline theinvitation to render for nought all this hard work by the parties.\u00a0 To encouragesettlements and to avoid irreparable harm to the Secretary’s interests, the motion forwithdrawal is denied.[[12]]Penn Steel also claims that if the Commission changesany of Judge Chalk’s dispositions of the 58 litigated items, the settlement agreement asto the 240 unlitigated items is void.\u00a0 While this argument appears frivolous at firstglance, it is not entirely so.\u00a0 The settlement agreement that the parties enteredinto came after Judge Chalk rendered a preliminary decision on the 58 unsettled items. Avery lengthy stay then ensued.\u00a0 The parties later prepared a settlement agreementresolving the 240 unlitigated items; as to the litigated items, it stated that\”[w]ith respect to the citation items covered in the preliminary decision of Judge .. . Chalk . . . the parties agree that the disposition set forth therein shall takeeffect.\”\u00a0 It could therefore be argued that the parties effectively made thepreliminary dispositions by Judge Chalk their final consensual disposition–that the 58items were settled by the parties rather than by Judge Chalk.The problems with this argument are that it iscontrary to another provision of the settlement agreement and that it seems not to havebeen the intention of any of the parties or the understanding of Judge Chalk.\u00a0 Thesame paragraph of the settlement that contains the language above also states that\”[b]oth parties reserve their rights under [section 11 of the Act] 29 U.S.C. ? 660and the applicable Review Commission Rules of Procedure to petition for review of that[preliminary] decision.\”\u00a0 Judge Chalk expressly noted this provision in hisfinal decision, declaring that both parties could seek review of his dispositions of the58 items.\u00a0 And indeed both the Secretary and Penn Steel did petition the Commissionfor discretionary review of some of those litigated items.\u00a0 We therefore conclude, inview of the language of the settlement as a whole, the understanding of Judge Chalk andthe conduct, of the parties, that the phrase \”the disposition set forth therein\”merely reflected the parties’ intention that Judge Chalk’s stay of the proceedings pendingsettlement discussions would finally end and that his preliminary decision could now beincorporated in a final decision.Finally, Penn Steel claims that the participation of the Union \”tainted\” thesettlement agreement.\u00a0 Penn Steel evidently believes that the Union’s participationcaused it to agree to a settlement to which it would not have otherwise agreed. \u00a0However, Penn Steel has presented no evidence on how the Union’s participation affectedthe settlement process, nor can we fathom how the Union’s participation would haveaffected the settlement talks in the way Penn Steel claims.\u00a0 Therefore, we will notoverturn the settlement agreement based on this unsupported claim.IV.\u00a0 The Citation ItemsWe now turn to the consideration of the citationitems that were directed for review.Items 45(g) and (h):\u00a0 29 C.F.R. ?1910.212(a)(1), Swing GrindersItems 45(g) and (h) allege that Penn Steel violatedsection 1910.212(a)(1), a generally applicable machine guarding standard, by failing toguard the wheels of two swing grinders.\u00a0 The two grinders had guards over the tophalves of the grinding wheels.\u00a0 The compliance officer was concerned that chips ofcastings or pieces of the wheels could fly back at the operators because the guards didnot extend downward over the backs of the wheels.\u00a0 Judge Chalk vacated the item onthe basis that the Secretary’s evidence of employee exposure was inadequate. \u00a0 TheSecretary argues on review that the judge erred.\u00a0 We do not reach this or any otherissue because we conclude that section 1910.212(a)(1) is preempted with respect to thesegrinders.Section 1910.212(a)(1) provides:? 1910.212 General requirements for all machines.(a) Machine guarding–(1) Types of guarding.\u00a0One or more methods of machine guarding shall be provided to protect the operator andother employees in the machine area from hazards such as those created by point ofoperation, ingoing nip-points, rotating parts, flying chips and sparks. \u00a0 Examples ofguarding methods are–barrier guards, two-hand tripping devices, electronic safetydevices, etc.This standard is generally applicable to allmachines.\u00a0 There are, however, other standards that are specifically applicable tocertain machines.\u00a0 See 29 C.F.R. ?? 1910.213-1910.219.\u00a0 Among these latterparticular standards, there is a standard for swing frame grinders that requires thegrinders to have guards enclosing the top half of the wheel.\u00a0 See 29 C.F.R.?? 1910.215(b)(2) and (6). Section 1910.215(b)(6) states:1910.215 Abrasive wheel machinery.* * * (b) Guarding of abrasive wheel machinery.* * *(6) Swing frame grinders.\u00a0 The maximumangular exposure of the grinding wheel periphery and sides for safety guards used onmachines known as swing frame grinding machines shall not exceed 180?, and the top halfof the wheel shall be enclosed at all times.\u00a0 (See Figures 0-14 and 0-15.)The two figures to which the section refers show arounded guard and a squared-off guard, each covering the top half of the grinding wheel.\u00a0 Up to 180 degrees of the bottom halves of the grinding wheels are shown open.Where \”a particular standard is specificallyapplicable to a condition, practice, means, method, operation, or process, it shallprevail over any different general standard which might otherwise be applicable . . . .\” 29 C.F.R. ? 1910.5(c)(1).\u00a0 Because section 1910.215(b)(6) fully addresses thematter of guarding a wheel of a swing frame grinder, specifying where the guard must beinstalled and how much of the wheel may remain open, it applies to the condition withwhich the Secretary is concerned in this case. Accordingly, section 1910.215(b)(6)prevails over the more general standard, section 1910.212(a)(1).\u00a0 See, e.g.,Vicon Corp., 81 OSAHRC 98\/C4, 10 BNA OSHC 1153, 1156, 1981 CCH OSHD ? 25,749, pp.32,158-59 (No. 78-2923, 1981), aff’d, 691 F.2d 503 (8th Cir. 1982); GeneralSupply 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 beamended to allege a violation of section 1910.215(b)(6).\u00a0 Under Rule 15(b) of theFederal Rules of Civil Procedure, pleadings may be amended to conform to the evidence whenan issue not raised by the pleadings has been tried by the express or implied consent ofthe parties.\u00a0 Here, the record is very limited.\u00a0 During the proceedings, theparties referred neither to the particular standard nor to requirements in the nature ofthose stated in that standard.\u00a0 The parties did not focus on whether the guards whichPenn Steel had installed on the two grinders covered the top half of the wheels andwhether the open portions of the wheels constituted more than one-half of the totalcircumference.\u00a0 Instead, the parties tried only the general issue framed by thegeneral standard–whether the operator was exposed to a hazard of rotating parts or flyingchips during the operations.\u00a0 They did not understand that a violation of section1910.215(b)(6) was at issue.\u00a0 Under these circumstances, it is inappropriate to amendthe citation under Rule 15(b). See Nu-Way Mobile Home Manufacturing, Inc.,86 OSAHRC __, 12 BNA OSHC 1670, 1671, 1986 CCH OSHD ? 27,489, p. 35,624 (No. 80-7082,1986); McWilliams Forge Co., 84 OSAHRC ____, 11 BNA OSHC 2128, 2129-30, 1984 CCH OSHD ?26,979, p. 34,669 (No. 80-5868, 1984).\u00a0 Therefore, citation items 45(g) and (h) arevacated.Item 46(a):\u00a0 Section 1910.212(a)(3)(ii),Cut-off Wheel Citation item 46(a) alleges that Penn Steel violated29 C.F.R. ? 1910.212(a)(3)(ii) by failing to guard the bladeof a 16-inch table cut-off wheel or saw which was used to trim excess material fromcastings.[[14]]\u00a0 There is no doubt that the standard was violated.[[15]] At thehearing, however, the question arose whether compliance with the standard was infeasible.The compliance officer stated that, while \”sometype of guarding for this kind of cutoff wheel\” is available, using this guarding\”can present some problems with the different configurations in thecastings.\”\u00a0 The compliance officer, who observed an employee feeding a castinginto the blade, also testified that the \”best way\” to protect the employee wouldbe to construct and install a clamp to hold the castings.\u00a0 Relying on this testimony,the judge vacated the citation item and stated that the compliance officer’s testimony was\”a concession that the type of guarding contemplated by the standard wasimpossible.\”\u00a0 The judge reasoned that the proposed clamps did not satisfy thestandard because they did not physically prevent the operator from having a part of hisbody in the blade of the saw, and that the type of guarding that did prevent the operatorfrom touching the blade could not be used.The Secretary argues that Penn Steel failed toestablish that guarding the cited machine was \”impossible.\”\u00a0 The Secretarycontends that showing that guarding the machine would be difficult is not enough to showimpossibility.\u00a0 Also, the evidence revealed that clamps could be used as analternative means of protection.In Dun-Par Engineered Form Co., 86 OSAHRC ___,12 BNA OSHC __, 1986 CCH OSHD ? (No. 79-2553, 1986), the Commission substantially alteredthe \”impossibility\” defense.\u00a0 Under Dun-Par, the burden ofpersuasion is upon the employer to establish that compliance with the cited standard was\”infeasible\” as opposed to \”impossible.\”\u00a0 Also, the burden ofpersuasion was placed with the Secretary to establish that a feasible means of protectionnot required by the standard was available but that the employer failed to use it.We agree with the Secretary that Penn Steel did not carry its burden of proving thatcompliance was infeasible.\u00a0 The testimony of the compliance officer shows, at best,that during some operations, the use of a guard would be infeasible.\u00a0 However,the record does not show that compliance would be infeasible during all cuttingoperations.\u00a0 In any event, the record satisfies the Secretary’s burden of showingthat feasible alternative means of protection exist.\u00a0 The compliance officertestified that clamps could be used to hold down the workpiece so that the employee’shands could be kept away from the saw.\u00a0 Because we find that clamps could feasibly beused when guarding is infeasible, we reject Penn Steel’s defense and affirm item 46(a).Item 53(a):\u00a0 Section 1910.215(a)(2), GrindingWheel SpindleA different issue is presented by the remaining itemswhich, like item 53(a), involve unguarded machines.\u00a0 The issue is whether theSecretary presented sufficient evidence to establish that Penn Steel employees had accessto the violative conditions.\u00a0 To establish employee access, the Secretary mustdemonstrate a reasonable predictability that, in the course of their duties, employeeswill be, are,\u00a0 or have been in the zone of danger.\u00a0 Clement Food Co., 84OSAHRC 128\/B10, 11 BNA OSHC 2120, 2123, 1984 CCH OSHD ? 26,972, p. 34,633 (No. 80-607,1984), citing Gilles & Cotting, Inc., 76 OSAHRC 30\/D9, 3 BNA OSHC 2002,2003, 1975-76 CCH OSHD ? 20,448, p. 24,425 (No. 504, 1976).\u00a0 Where the danger iscreated by defective equipment, such as unguarded machines, the Secretary may satisfy thisburden of proof by demonstrating that the defective equipment was \”available foruse\”–specifically, that the defective equipment was located where employees couldgain access to it and use it in the course of their normal duties.\u00a0 See,e.g., Bechtel Power Co., 79 OSAHRC 34\/A2, 7 BNA OSHC 1361, 1366, 1979 CCH OSHD? 23,575, p. 28,577 (No. 13832, 1979); Marinas of the Future, Inc., 77 OSAHRC201\/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 CCHOSHC ? 22,214, p. 26,732 (No. 2171, 1977); Gilles & Cotting, Inc., 76 OSAHRC30\/D9, 3 BNA OSHC 2002, 2004, 1975-76 CCH OSHD ? 20,448 p. 24,425.\u00a0 The nature ofthe proof will vary depending on the particular type of defective equipment involved andcircumstances at the particular worksite, but, in general, it will not be enough for theSecretary to establish simply that the defective piece of equipment was at the worksite.\u00a0 There must be sufficient evidence about the precise location of the defectiveequipment and specific duties of employees likely to involve use of such equipment at theparticular location to show that some use of the equipment in its defective condition ator around the time of the alleged violation was indeed reasonably predictable.With respect to item 53(a), the compliance officerobserved a grinder that did not have a guard for the wheel spindle or nut. \u00a0 TheSecretary alleged that Penn Steel violated 29 C.F.R. ? 1910.215(a)(2).[[16]] \u00a0 Thejudge affirmed the citation.\u00a0 The compliance officer did not describe where thisgrinder was located nor did he see the grinder in use.\u00a0 However, Mr. George Hartman,Penn Steel’s safety director who accompanied the compliance officer during the inspection,told the compliance officer that the grinder \”was used for odd shapedcastings.\”\u00a0 On the basis of the compliance officer’s uncontroverted testimonyconcerning Mr. Hartman’s admission, we affirm the judge’s decision that the Secretaryestablished the accessibility of this grinder.\u00a0 Item 53(a) is therefore affirmed.Items 63a(a) & (b):\u00a0 Section1910.243(c)(3), Portable Grinders.With respect to items 63a(a) and (b), the complianceofficer observed a series of vertical portable grinders without guards in the back bay ofthe cleaning department.\u00a0 The Secretary alleged that Penn Steel violated 29 C.F.R. ?1910.243(c)(3)[[17]] because none of the grinders were guarded.\u00a0 The complianceofficer did not see either of the two grinders in use, but, with respect to the grinderinvolved in sub-item 63a(a), the compliance officer stated that he saw \”a number ofgrinders being used in the area\” of it and that the grinding wheel of the particulargrinder \”was somewhat worn down.\”\u00a0 With respect to the grinder involved insub-item 63a(b), the compliance officer stated that this grinder was \”laying on awork bench in the area where they’re chipping and grinding.\” The judge affirmed bothof these items.\u00a0 We affirm his decision in view of this evidence that the grinderswere located in an area where similar grinders were used for grinding and chipping work,and therefore, that they were \”available for use\” by Penn Steel employees.\u00a0Items 63a(a) and 63a(b) are affirmed.Item 50: Section 1910.213(j)(4), Jointer.Citation item 50 alleged that a hand-fed jointer inthe woodworking area of the shop lacked a suitable guard as required by 29 C.F.R. ?1910.213 (j)(4).[[18]]\u00a0 The compliance officer did not see anyone using the jointer.\u00a0 The compliance officer testified that he noted on his work sheet that the jointerwas used daily.\u00a0 However, the compliance officer testified that he could not recallwho told him that.\u00a0 In addition, although the compliance officer had noted the nameof an employee with whom he spoke during the inspection, the compliance officer could notdescribe this employee’s position or work.\u00a0 Therefore, there was no evidence that theemployee would know about the usual operations involving the jointer, or that the employeeeven worked in the pattern shop.\u00a0 The record generally indicates that differentmachines were used for different operations or materials and the compliance officer didnot provide any reliable information about the duties of employees likely to involve theuse of the unguarded jointer in the pattern shop around the time of the alleged violation.\u00a0 Accordingly, Chairman Buckley concludes that the Secretary has not established areasonable predictability that Penn Steel employees had access to the cited jointer.\u00a0 He therefore joins with Commissioner Rader–whose views are stated in his separateopinion–in vacating item 50.Commissioner Wall would, however, find the evidencewas sufficient to affirm the judge’s finding that Penn Steel employees had access to theunguarded jointer.\u00a0 The judge found that \”the jointer was accessible in itsviolative condition for use by an employee.\” Commissioner Wall observes that thecompliance officer’s notes included the name and address of a Penn Steel employee.\u00a0\u00a0 Although the compliance officer could not testify for certain, it is morelikely than not that the employee whose name and address was in the compliance officer’snotes was the employee who told him that the jointer was used daily.\u00a0 In addition,the compliance officer testified that the inspection followed the normal route of thefoundry process.\u00a0 Therefore, the jointer was in a place where work was normallyperformed and was easily accessible for use by Penn Steel employees.Item 53(e):\u00a0 Section 1910.215(a)(2), GrinderCitation item 53(e) involves the same type of grinderas item 53(a).\u00a0 Because the grinder was not guarded, the Secretary cited Penn Steelunder 29 C.F.R. ? 1910.215(a)(2).[[19]]\u00a0 Chairman Buckley joins with CommissionerRader in vacating the item.\u00a0 Chairman Buckley would note that unlike citation item53(a), there was no evidence about where the grinder cited in item 53(e) was located orthat the grinder was used by Penn Steel employees.\u00a0 Therefore, Chairman Buckley findsthat the Secretary did not establish that the Penn Steel employees had access to the citedmachine.Commissioner Wall would affirm the citation item.\u00a0 The administrative law judge foundthat the grinder was located in a work area and accessible to Penn Steel employees. \u00a0Commissioner Wall would defer to the administrative law judge on this finding of fact.The judge assessed an aggregated penalty of $5,000,the amount that the parties specified in their settlement agreement.\u00a0 We affirm thisassessment.Order Accordingly, we affirm Judge Chalk’s order entering judgment in accordancewith the settlement agreement on the 240 unlitigated items. We also affirm his decision asto some of the litigated citation items but reverse as to others. Items 45(g), 45(h), 50and 53(e) are vacated. Items 46(a). 53(a), 63a(a) and 63a(b) are affirmed. We also affirmthe judge’s assessment of a $5000 penalty.BY THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED:\u00a0 AUG 27 1986RADER, Commission, dissenting:I agree with Commissioner Wall that the Commission isrequired to consider Penn Steel’s constitutional objections to the probable cause showingby the Secretary for the inspection warrant.\u00a0 I dissent from the majority’s decisionbecause in my view the warrant was not supported by adequate probable cause and wasoverbroad.\u00a0 Consistent with my opinion in Synkote Paint Co., OSHRC Docket No.83-0002 (August 27, 1986), I would suppress the evidence obtained under the warrant.As Commissioner Wall correctly points out, numerouscourts of appeals have directed the Commission to rule on challenges to the probable causeshowing for an inspection warrant once statutory review proceedings have commenced.\u00a0The courts have not stated that any challenges to the validity of a warrant are to beraised before the Commission merely to be preserved for appellate review pending thedevelopment of a factual record by the Commission.\u00a0 Rather, the case law now clearlyholds that such challenges are not only to be raised but are also to be heard and resolvedbefore the Commission.\u00a0 Smith Steel Casting Co. v. Donovan, 725 F.2d 1032,1036 (5th Cir. 1984); Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1066 (11thCir. 1982); Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d Cir.1979).Consideration of the sufficiency of the probablecause for the warrant in this case must begin with Marshall v. Barlow’s Inc., 436U.S. 307 (1978) [[1]]\u00a0 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 for conducting an inspection aresatisfied with respect to a particular establishment.\”\u00a0 436 U.S. at 320.The affidavit for the warrant at issue here assertstwo grounds for an inspection of Penn Steel’s facility.\u00a0 The first asserted ground isthe need to conduct a follow-up inspection to verify the validity of Penn Steel’s claimthat it could not feasibly abate prior violations for excessive noise, silica dust, andnuisance dust.\u00a0 This portion of the affidavit is sufficient under Barlow’s toestablish probable cause to conduct an inspection based on specific evidence of anexisting violation.\u00a0 Pelton Casteel, Inc. v. Marshall, 588 F.2d 1182 (7th Cir.1978).\u00a0 Had the warrant and ensuing inspection been limited to matters pertaining tonoise and dust, they would pass constitutional muster.\u00a0 See my opinion in SynkotePaint, supra (warrant must be properly tailored to the probable cause showingfor its issuance).\u00a0 However, the warrant authorized, and the Secretary conducted, ageneral or wall-to-wall inspection of the entirety of Penn Steel’s premises.\u00a0 In thisrespect the warrant was clearly overbroad in scope because there was no probable causeshown for a general inspection of Penn Steel’s premises.\u00a0 Barlow’s and itsprogeny require that an application for a warrant based on a general administrative planfor the enforcement of the Act must demonstrate both that a reasonable legislative oradministrative inspection program exists and that rational and neutral criteria were usedto select the particular employer for an inspection under this plan.\u00a0 In reEstablishment Inspection of Northwest Airlines, Inc., 587 F.2d 12, 13-14 (7th Cir.1978); In re Establishment Inspection of Pfister & Vogel Tanning Co.,493 F. Supp. 351, 354 (E.D. Wis. 1980).\u00a0 The affidavit for the warrant here simplystated:The purpose [in addition to the follow-up inspectionfor conditions previously cited] was . . . to conduct the inspection pursuant to OSHA’sNational Emphasis Program for Foundries.. . The National Emphasis Program (hereinafter\”NEP\”) was established in 1976 to reduce hazards in industries reporting ahigher than average rate of injuries and illnesses.\u00a0 The first target industriesselected by NEP were iron and steel foundries and aluminum, bronze, brass and coppercasting and metal stamping plants.\u00a0 Foundries reported a 1973 illness and injury rateof 26.6 per 100 workers as compared to the national average of 8.8.Assuming without deciding that this limiteddescription of the NEP program is sufficient to establish a reasonable administrative planunder Barlow’s, supra, the affidavit plainly fails to set forth any basiswhatever for the selection of Penn Steel’s worksite for an inspection pursuant to theNEP.[[2]]\u00a0 The affidavit states simply that Penn Steel was selected for an inspectionpursuant to the plan; it does not describe the procedure followed in the selection of PennSteel for a general inspection under the NEP.\u00a0 Was it by lot? Was it at random?\u00a0 Was it by design?\u00a0 If by design, what were the facts underlying the purposefulselection?\u00a0 The purpose of the warrant requirement is to \”guard againstarbitrariness.\”\u00a0 Brock v. Gretna Machine & Ironworks, 769 F.2d 1110,1112 (5th Cir. 1985).\u00a0 Yet absent such information as to Penn Steel’s selection underthe NEP we cannot determine whether the selection of Penn Steel as opposed to any otherfoundry for a general inspection under the NEP was \”a reasonable exercise ofdiscretion for the area administrator.\”\u00a0 In re Establishment Inspection ofUrick Property, 472 F. Supp. 1193, 1195 (W.D. Pa. 1979).[[3]]\u00a0 See GretnaMachine & Ironworks, supra, 769 F.2d at 1112-13, and Marshall v.Weyerhaeuser Co., 456 F. Supp. 474 (D.N.J. 1978).\u00a0 Cf. Marshall v.Shellcast Corp., 5 BNA OSHC 1689, 1691 (N.D. Ala. 1977), rev’d on other grounds,592 F.2d 1369 (5th Cir. 1979) (where individualized information is available, nationwidestatistics do not establish sufficient probable cause to justify the selection ofparticular foundries for inspection under the foundry NEP).\u00a0 Since probable cause fora general inspection under the NEP was not established, the warrant should have beenlimited in scope to the particular violative conditions for which the Secretary wasseeking a follow-up inspection.\u00a0 Sarasota Concrete, supra, 693 F.2d at1068-70 (11th Cir. 1982); Marshall v. North American Car Corp., 626 F.2d320, 324 (3d Cir. 1980); Marshall v. Central Mine Equipment Co., 608 F.2d 719, 720n.1 (8th Cir. 1979).\u00a0 See Synkote Paint, supra.However, that did not happen here.\u00a0 Instead the Secretary inspected and issuedcitations consisting of almost 300 separate violations for matters as diverse as failingto instruct employees in how to safely lift heavy objects, failure to properly encloseelectrical equipment, and, as the lead opinion points out, failure to properly guardwoodworking machinery in the pattern shop.\u00a0 Quite clearly the Secretary conducted farmore than merely a follow-up inspection for noise and dust violations, and his inspectionwent well beyond any open and obvious hazards that arguably might have been detectedduring a properly limited follow-up inspection.\u00a0 Since there was no probable causefor an inspection of such scope, the warrant is invalid for being overbroad. \u00a0Consistent with Sarasota Concrete, supra, and my opinion in SynkotePaint, supra, I would suppress the evidence obtained under the invalid warrant.Commissioner Wall holds that even if there was notprobable cause for a general inspection, the \”good faith\” exception of UnitedStates v. Leon, 468 U.S. 897 (1984), applies here to excuse this broad invasion ofPenn Steel’s privacy.\u00a0 However, I believe that Leon, a criminal case, isfounded on different considerations than exist in an OSHA warrant case and should not beused to justify the incredibly detailed inspection that took place in this case.\u00a0 Theuse of evidence in criminal cases is vastly different than in civil cases before theCommission under the Act.\u00a0 The distinctions are well-stated by Chairman Buckley in BrooksWoolen 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).\u00a0 As Chairman Buckley explained, the suppression of evidence normally will defeat thepunitive purposes of the criminal law because evidence of a crime, once suppressed,usually cannot be recovered.\u00a0 Different considerations apply in cases under the Act,however, because the purposes of the Act are not punitive but rather remedial.\u00a0 Thus,the Act is intended to achieve safe and healthful working conditions through theelimination of recognized hazards and compliance with standards promulgated under the Act.\u00a0 As Chairman Buckley has accurately stated,If evidence from an unlawful OSHA inspection issuppressed, the Secretary can seek to obtain similar evidence from a subsequent, validinspection or by other means.\u00a0 See section 8(b) of the Act, 29 U.S.C. ? 657(b)(Secretary has authority to issue subpoenas in investigating possible violations of theAct).\u00a0 If conditions in the employer’s workplace have changed to the extent thatevidence of a violation no longer exists, then any violation has ceased to exist, and theSecretary has achieved the result he sought by initiating the enforcement action.\u00a0 Ifconditions have not changed, the Secretary can reacquire the evidence by lawful means.\u00a0 He will have lost some time and resources, but in many cases the lost time andresources will be less than he would expend in litigation arising from questionableinspection practices.\u00a0 In any event, the cost of suppression is much less than it isin criminal cases.This distinction between criminal and civilproceedings was emphasized by the Eleventh Circuit in affirming the Commission’s refusalto apply a good faith exception in Sarasota Concrete, supra.\u00a0 See693 F.2d at 1072.\u00a0 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 Commissionapplied the exclusionary rule to our proceedings because it creates a clear incentive tothe Secretary to conduct OSHA inspections in accordance with the fourth amendment.\u00a0 Isee no reason to disregard our prior decision in Sarasota Concrete, as ChairmanBuckley does by refusing to decide these constitutional warrant issues, and asCommissioner Wall does by applying a good faith exception in the present cast.\u00a0 Onthe other hand, the effect of the majority’s ruling will be to unnecessarily encouragesloppy warrant applications and overbroad OSHA inspections.Even if the good faith exception did apply to ourproceedings, I cannot find the Secretary to have acted in good faith here. \u00a0 Althoughthe warrant here predates the Supreme Court’s decision in Barlow’s, the Court hadheld as far back as Camara v. Municipal Court, 387 U.S. 523, 538 (1967),that in order to establish probable cause for an administrative warrant there must be\”reasonable legislative or administrative standards for conducting an area inspection. . . with respect to a particular dwelling.\”\u00a0 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 Secretary applied for the warrant in thiscase a number of courts had specifically applied Camara to OSHA inspectionwarrants.\u00a0 See the three-judge district court opinions in Barlow’s Inc. v.Usery, 424 F. Supp. 437 (D. Idaho 1976); Dunlop v. Hertzler Enterprises, Inc.,418 F. Supp. 627 (D.N.M. 1976); Brennan v. Gibson’s Products, Inc. of Plano, 407F.Supp. 154 (E.D. Tex. 1976); and the district court opinion in Usery v. Centrif-AirMachine Co., 424 F. Supp. 959 (N.D. Ga. 1977).\u00a0 Cf. In re theInspection of Rupp Forge Co., 4 BNA OSHC 1487, 1976-77 CCH OSHD ? 20,914 (N.D. Ohio1976) (probable cause standards appropriate to administrative searches apply toinspections under the Act).\u00a0 Thus, the Secretary should have been aware of the needto demonstrate why he selected Penn Steel for inspection under the NEP.\u00a0 Similarly,as I observed in Synkote Paint, supra, the principle that a warrant must beproperly tailored to the probable cause basis for its issuance is a fundamental rule offourth amendment law of which we may reasonably expect the Secretary’s agents to be aware.\u00a0 Therefore, in my view the Secretary could not have reasonably believed that thewarrant authorizing a general inspection of Penn Steel’s worksite was valid.The underlying basis of the majority’s decision isits reluctance to allow Penn Steel to escape the settlement agreement.\u00a0 I share thisreluctance.[[4]]\u00a0 However, I believe that when the question of the legality of theinspection warrant and the inspection is raised, as it is here, we are required by theprecedent I have noted to decide these constitutional issues.\u00a0 If the warrant orinspection is unconstitutional or otherwise invalid, our obligation to protect the rightsguaranteed by the fourth amendment requires that we suppress the evidence obtained duringthe inspection regardless of our dislike for setting aside the settlement agreement.\u00a0 See Sarasota Concrete, supra, 9 BNA OSHC at 1615, 1981 CCHOSHD at p. 31,533.Barlow’s, supra, reaffirms that thedetermination of the reasonableness of a particular OSHA inspection is to be made by themagistrate, not the Secretary.\u00a0 The application for a warrant must therefore setforth sufficient information to enable the magistrate to make an independent determinationof probable cause.\u00a0 In this case the affidavit should have described how Penn Steelwas selected for inspection under the NEP.\u00a0 Gretna Machine & Ironworks, supra,769 F.2d at 1114.\u00a0 The Secretary could easily have described his selection process inthe affidavit, if in fact the selection of Penn Steel was done in a neutral manner underthe NEP. He has certainly done so in other cases and the burden has not been onerous.\u00a0 See, e.g., Stoddard Lumber Co., Inc. v. Marshall, 627 F.2d984, 985 n.2, 988 (9th Cir. 1980) (\”detailed explanation\” of inspection plandescribing how individual employers are selected for inspection); Reynolds Metals Co.v. Marshall, 442 F. Supp. 195 (W.D. Va. 1977).\u00a0 His failure to do so herecontravenes the clear teaching of Barlow’s and its progeny.\u00a0 Accordingly, Iwould vacate all the citations issued to Penn Steel since those citations arise from anillegal 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 EmployeesFINAL DECISION AND ORDERChalk, Judge:IThis protracted case involves some 300 separatecharges (items and subitems), involving four separate hearing sessions dating back toJanuary 1979.\u00a0 These hearing sessions were interspaced with recesses requested by theparties to enable them to conduct settlement sessions and, on one occasion, to permit meto resolve a renewed motion by Respondent, after receipt of briefs of all parties, tosuppress all the evidence in the case after the Commission, on July 17, 1979, reversed itsprior decisions that it lacked jurisdiction to adjudicate the validity of search warrantsissued by United States District Courts (see Secretary v. Chromalloy American Corp., 79OSAHRC 55\/D11, Docket No. 77-2788).During one of the hearing sessions convened onDecember 5, 1979, the parties requested permission to conduct a full hearing limited to 58of the 300 charges, those they believed they could not settle, expressing theirexpectation that it would enable them to settle the remainder of the case. \u00a0Thereafter, on June 27, 1980, I issued a preliminary or interlocutory decision whichserved to advise the parties of my future disposition of each of the 58 charges when thisfinal decision and order was issued.\u00a0 That preliminary decision, attached hereto, isincorporated herein, made a part hereof, and each disposition specified therein will befully implemented herein.Although the parties, in the partial settlementagreement they have now filed, have reserved unto themselves the right to seek relief atthe Commission and Circuit Court levels from the disposition of those 58 charges specifiedin the preliminary decision, as implemented herein, they already have that right as amatter of law under the provisions of the Act (29 U.S.C. 659(c), 660(a) and 661(j)).When the final hearing session in this case convenedon January 22, 1981, a recess was immediately declared at the request of the parties toenable them to resume settlement negotiations.\u00a0 The hearing was never reconvened asthe parties advised me informally on January 23, 1981 that they had settled all remainingcharges alleged in the citations, other than those resolved in the preliminary decision.IIAItems Involved in the Preliminary DecisionCitation Number 1 (Serious)Items (or subitems) 20 a through g, 25a and b, 27a,39, 42, 43a, 45a through j, 46a through i and k, 48a, 51, 54b, 56a, 57c, 58b, c, f and h,and 74a through c – Vacated. Items (or subitems) 47, 50 and 53a through e -Affirmed. Items (or subitems) 48b, 49, 52 and 63a(a), a(b), anda(c) – Modified to allege other than serious violations, affirmed.BThe partial settlement agreement filed by the partieson June 18, 1981 is approved, the motions contained therein are granted, and Respondent’snotice of contest to the items (or subitems) affirmed in accordance with said agreement isdismissed.Citation Number 1 (Serious) Items 1, 4 through 8, 11, 12, 15, 18, 19, 20(h), 20(i), 20(k) through 20(n), 20(p), (23,25(c) through 25(f), 26(a), 26(b), 28, 31, 43(b), 46(j), 54(a), 56(b) through 56(f),57(a), 57(d) through 57(p), 58(a), 58(d), 58(e), 58(g), 59 through 61, 64 through 68,69(c) through 69(l), 70(a), 70(b), 72, 73 and 75 – Affirmed.Items 2, 3, 9, 10, 13, 14, 16, 20(j), 20(o), 21, 22,24, 29, 30, 32 through 38, 40, 41, 55, 62, 63(b), 69(b) and 71 – Vacated.Citation Number 2 (Willful)Item 3 – Vacated.Item 1, 2, 4 and 5 – Modified to allege \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0serious violations, affirmed.Citation Number 3 (Nonserious) Items 8 and 16 – Vacated Items 1 through 7, 9through 15, and 17through 25 – Affirmed.An aggregate penalty of $5,000 is assessed for theitems (or subitems) of Citation number 1 for serious violations affirmed as seriousviolations, as provided for in both the preliminary decision and the partial settlementagreement and for the affirmed items of Citation number 2, as modified, and for items 1,3, 4, 6, 13 and 20 of Citation number 3 for other than serious violations, the latter twocitations as provided for in the partial settlement agreement.Respondent will comply with the abatement provisionsof paragraphs 3 and 4 of the partial settlement agreement and the respective parties willadhere to the agreements reached in paragraphs 5 through 10 thereof.So ORDERED.JOSEPH L. CHALK Judge, OSHRCDated:\u00a0 July 13, 1981 Hyattsville, Maryland.FOOTNOTES: [[1]] The issues the parties were instructed toaddress in their supplemental briefs were:If the Secretary’s regulation at 29 C.F.R. ? 1903.4required notice and hearing on the warrant application, did the Secretary’s conduct inobtaining the warrant ex parte violate the employer’s right to due processof law under the Fifth Amendment?\u00a0 What is the effect of the Supreme Court’s holdingin Accardi v. Shaughnessy, 347 U.S. 260 (1954), on this issue?\u00a0 What is theeffect of the Supreme Court’s holding in United States v. Caceres, 440 U.S. 741(1979), on this issue? If the Secretary’s conduct in obtaining the warrant exparte did violate 29 C.F.R. ? 1903.4, what is the proper remedy under the FifthAmendment?Does the \”good faith\” exception of UnitedStates v. Leon, 104 S.Ct. 3405 (1984), apply to violations of due process rights underthe Fifth Amendment?Whether the decision of the United States Court ofAppeals for the Third Circuit in Cerro Metal Products v. Marshall, 620 F.2d 964(3rd Cir. 1980), should be applied retroactively to the warrant in this case, which wasissued on August 25, 1977?If the Commission concludes that the Secretary’sconduct in obtaining the warrant ex parte violated the employer’s right todue process of law under the Fifth Amendment, what effect, if any, does that have on thevalidity of the settlement agreement approved by the Judge on June 23, 1981?Whether the terms of the June 23, 1981, settlementagreement require that the agreement be voided if the Commission alters Judge Chalk’sdecision.[[2]] Before the oral argument, the parties wereinstructed to concentrate their arguments on the following two questions:(1) If the Secretary’s regulation at 29 C.F.R. ?1903.4 required notice and hearing on the warrant application, did the Secretary’s conductin obtaining the warrant ex parte violate the employer’s right to dueprocess of law under the Fifth Amendment?\u00a0 If so, does the due process violationrequire vacation of the citations or suppression of the evidence resulting from theinspection?(2) If the Commission concludes that the Secretary’sconduct in obtaining the warrant ex parte violated the employer’s right todue process of law under the Fifth Amendment, what effect, if any, does that have on thevalidity of the settlement agreement approved by the Judge on June 23, 1981?[[3]] The questions of the validity of the inspectionand whether Penn Steel should be allowed to withdraw from the settlement agreement werenot stated in the directions for review.\u00a0 On review, the Secretary argues that theCommission therefore does not have any of these issues before it. \u00a0 However, thatissues in a case were not included in a direction for review does not preclude theCommission from considering them.\u00a0 Once a case is directed for review, the Commissionmay consider any issue raised by the case. Hamilton Die Cast, Inc., 86 OSAHRC ____,12 BNA OSHC 1797, 1986 CCH OSHD ? 27,576 (No. 83-308, 1986). Concomitantly, theCommission also has the discretion to decline review of issues tendered by theparties.\u00a0 We decline to review certain additional issues that were mentioned by PennSteel in its initial review brief but are not discussed in this opinion.[[4]] As in Geupel, we find it unnecessary toconsider whether Chevron v. Huson, 404 U.S. 97, 106 (1971), which generally governsretroactivity in civil cases, should be applied to Fourth Amendment questions.\u00a0 Wefind that the \”clearly foreshadowed\” test of Chevron would yield here thesame result as the \”clear break\” test of Johnson.[[5]] Davis Metal Stamping, Inc., 82 OSAHRC37\/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 thefact that even after the Barlow’s decision, a majority of the tribunals thatconsidered the question did not find that the language of Barlow’s and the eventsthat precipitated it suggested that OSHA lacked the authority to seek warrants ex parte.\u00a0The majority of the circuit courts have held that the Secretary had authority to obtain exparte warrants under section 1903.4 as originally promulgated.\u00a0 Donovan v.Red Star Marine Services, Inc., 739 F.2d 774, 782-784 (2d Cir. 1984), cert. denied,105 S.Ct. 1355 (1985); Rockford Drop Forge Co. v. Donovan, 672 F.2d 626, 629-631(7th Cir. 1982); Marshall v. Seaward International, Inc., 644 F.2d 880 (4th Cir.1981) (table), aff’g 510 F. Supp. 314 (W.D. Va. 1980); Stoddard LumberCo. 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. HuffinesSteel Co., 645 F.2d 288 (5th Cir. 1981), has agreed with the holding of the ThirdCircuit in Cerro.\u00a0 In addition, the Commission has held that the Secretary wasempowered under the original version of section 1903.4 to obtain ex partewarrants.\u00a0 Davis Metal Stamping, 10 BNA OSHC at 1747, 1982 CCH OSHD at p.32,900.[[7]] The reasonableness of OSHA’s interpretation isalso supported by the fact that it was later accepted by the Commission and a majority ofthe courts of appeals that considered the issue.\u00a0 See note 6 supra.[[8]] See also his views in Equitable Shipyards,Inc., 85 OSAHRC _______,12 BNA OSHC 1288, 1985 CCH OSHD ? 27,237 (Nos. 81-1685,81-1762 and 81-2089, 1985); Smith Steel Casting Co., 85 OSAHRC, ______, 12 BNA OSHC1277, 1985 CCH OSHD ? 27,263 (Nos. 80-2069 and 80-2322, 1985) appeal filed, No.85-4346 (5th Cir. May 21, 1985); Thermal Reduction Corp., 85 OSAHRC __________, 12BNA OSHC 1264, 1985 CCH OSHD ? 27,248 (No. 81-2135, 1985); Davis Metal Stamping,12 BNA OSHC at 1261, 1985 CCH OSHD at p. 35,156; Brooks Woolen, 12 BNA OSHC at1233, 1985 CCH OSHD at p. 35,148; Robert K. Bell Enterprises, Inc., 85 OSAHRC ____,12 BNA OSHC 1149, 1985 CCH OSHD ? 27,139 (No. 78-4332, 1984), aff’d, No. 85-1547(10th Cir., Feb. 19, 1986); Beauty Craft Tile of the Southwest, Inc., 85 OSAHRC_______, 12 BNA OSHC 1082, 1983-84 CCH OSHD ? 27,091 (No. 80-471, 1984).[[9]] Once the warrant has been executed andenforcement proceedings commenced before the Review Commission, a majority of courts haveheld that the district courts should refrain from considering further challenges to thevalidity of the warrant.\u00a0 Rather, the matter should be considered by a court ofappeals after a full factual record has been developed by the Review Commission. Babcock& Wilcox, 610 F.2d at 1136 (\”The question in this case is not whether theissues may be heard by an Article III court, but when.\”).\u00a0 But seeWeyerhauser Co. v. Marshall, 592 F.2d 373 (7th Cir. 1979).The function of the Commission and its judges is tohear employers’ challenges to the Secretary’s evidence in support of citations and, onlyconsistent with this authority, can the Commission consider claims that evidence should besuppressed because of an invalid inspection.\u00a0 See section 10(c) of the Act, 29U.S.C. ? 659(c); Babcock & Wilcox, 610 F.2d at 1136; see also EstablishmentInspection of the Metal Bank of Am., Inc., 700 F.2d 910 (3d Cir. 1983); BaldwinMetals, 642 F.2d at 773 n.11.[[10]] Smith Steel Casting Co. v. Donovan, 725F.2d 1032, 1035-1036 (5th Cir. 1984); Robert K. Bell Enterprises, Inc. v. Donovan,710 F.2d 673 (10th Cir. 1983), cert. denied, 464 U.S. 1041 (1984), Metal Bank,700 F.2d at 914; Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1066 (11thCir. 1982); Babcock & Wilcox, 610 F.2d at 1136-1137; In re Inspection ofCentral Mine Equipment Co., 608 F.2d 719 (8th Cir. 1979); Bethlehem SteelCorp. v. OSHRC, 607 F.2d 871 (3d Cir. 1979); In re Worksite Inspection ofQuality Products, Inc., 592 F.2d 611 (1st Cir. 1979). [[11]] Paragraph 9 of the Application for the warrantdescribed the Foundry NEP in the following way.The National Emphasis Program (hereinafter\”NEP\”) was established in 1976 to reduce hazards in industries reporting ahigher than average rate of injuries and illnesses.\u00a0 The first target industriesselected by NEP were iron and steel foundries and aluminum, bronze, brass and coppercasting and metal stamping plants.\u00a0 Foundries reported a 1973 illness and injury rateof 26.6 per 100 workers as compared to the national average of 8.8.NEP inspections are conducted by teams of safetyofficers and industrial hygienists.\u00a0 NEP inspection teams are not limited toidentifying violations as during ordinary inspections, but are also required to providefoundry operators with technical assistance by evaluating unsafe conditions and practices,identifying abatement methods and techniques, establishing or maintaining safety andhealth programs and providing a detailed evaluation of the employer’s safety program.The NEP goal is to achieve a significant reduction inthe incidence of occupational injuries and illnesses due to hazards in the foundryindustry.\u00a0 NEP functions such as consultation, training and education, evaluation andcompliance monitoring are essential to the achievement of his goal.[[12]] As our discussion indicates, Penn Steel’sstatement in its initial review brief that it withdraws from the settlement agreement isto be treated as a motion to withdraw which may be granted or denied by the Commission.\u00a0 As such, the request to withdraw should have been presented to the Commission inthe form of a motion, filed separately from the brief.\u00a0 See McWilliamsForge Co., 84 OSAHRC, 11 BNA OSHC 2128, 2131 and n.6, 1984-85 CCH OSHD ? 26,979, p.34,671 & n.6 (No. 80-5868, 1984), citing Fed. R. Civ. P. 7(b)(1) and Fed. R.App. R. 27(a).\u00a0 At the time that Penn Steel filed its review brief with the motionstated in it, the Commission had not yet issued McWilliams Forge disapproving the practiceof incorporating motions in briefs.[[13]] We acknowledge that Penn Steel did not raisethe preemption issue and that we are raising section 1910.215(b)(6) in this litigation forthe first time.\u00a0 We have done so because the preemption of section 1910.212(a)(1) bysection 1910.215(b)(6) became plainly evident as we reviewed the evidence as to theseitems and items 53(a) and (e), which allege violations of section 1910.215(a)(2).\u00a0Ordinarily, we would afford the parties the opportunity to brief this issue.\u00a0 In thiscase, however, the parties have already submitted lengthy supplemental briefs and haveargued the case orally.\u00a0 In view of the age of the case, and in the interest ofjudicial economy, we will dispose of this item on the existing record.[[14]] The standard provides:? 1910.212 Several requirements for all machines(a) Machine Guarding* * * (3) Point of operation guarding * * * (ii) The point of operation of machines whose operation exposes an employee to injury,shall be guarded.\u00a0 The guarding device shall be in conformity with any appropriatestandards therefor, or, in the absence of applicable specific standards, shall be sodesigned and constructed as to prevent the operator from having any part of his body inthe danger zone during the operating cycle.[[15]] We have considered whether section1910.212(a)(3)(ii) is preempted by the more particular standards at 29 C.F.R. ?1910.215(b)(5), (b)(10)(iv) and (v).\u00a0 See also 29 C.F.R. ?1910.211(b)(13).\u00a0 However, the description of the machine cited in item 46(a) is notsufficient for us to decide whether these more particular standards are applicable.[[16]] The standard provides:? 1910.215 Abrasive wheel machinery * * * (a) General requirements * * * (2) Guard design.\u00a0 The safety guard shall cover the spindle end, nut, andflange projections.\u00a0 The safety guard shall be mounted so as to maintain properalignment with the wheel, and the strength of the fastenings shall exceed the strength ofthe guard, except:[[17]] That section provides:? 1910.243 Guarding of portable powered tools * * *(c) Portable abrasive wheels* * * (3) Safety guards used on machines known as right angle head or vertical portable grindersshall have a maximum exposure angle of 180?, and the guard shall be so located so as tobe between the operator and the wheel during use.\u00a0 Adjustment of guard shall be suchthat pieces of an accidentally broken wheel will be deflected away from the operator.[[18]] The standard requires? 1910.213 Woodworking machinery requirements.(j) Jointers.(4) Each hand-fed jointer with horizontal cuttinghead shall have a guard which will cover the section of the head back of the gage orfence.[[19]] See footnote 15.[[1]] Although handed down after this warrant wasissued, the holding in Barlow’s must be applied retroactively.\u00a0 In UnitedStates v. Johnson, 457 U.S. 537, 549 (1982), the Supreme Court ruled thatfourth amendment cases are generally to be applied retroactively unless they are a\”clear break with the past.\”\u00a0 Barlow’s was not a clear break withthe past, but, rather, was the culmination of a long line of administrative search casesbeginning as far back as Camara v. Municipal Court, 387 U.S. 523 (1967) and Seev. City of Seattle, 387 U.S. 541 (1967).\u00a0 Indeed, the holding in Barlow’swas \”clearly foreshadowed.\”\u00a0 see Chevron Oil Co. v. Huson,404 U.S. 97, 106 (1971), by numerous lower court decisions that relied on Camaraand See in requiring OSHA to obtain warrants to inspect.\u00a0 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).\u00a0 Cf. Carl M. GuepelConst. Co., 82 OSAHRC 60\/B5, 10 BNA OSHC 2097, 1982 CCH OSHD ? 26,309 (Nos. 81-55& 81-56, 1982) (retroactive application to be given to the Commission decision in SarasotaConcrete Co., 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ? 25,360 (No. 78-5265,1981), holding that evidence must be suppressed if probable cause for a warrant does notexist).[[2]] In this respect the present affidavit isremarkably similar to the affidavit that was struck down in Barlow’s because therewere \”no facts presented that would indicate why the inspection of Barlow’sestablishment was within the program.\”\u00a0 436 U.S. at 323 n.20.[[3]] Contrary to Commissioner Wall’s analysis, UrickProperty is directly on point.\u00a0 There, as here, there was \”no recital of arational basis for the selection\” of the particular foundry to be inspected under theNEP, and it is entirely possible that the selection of Penn Steel for a general inspectionunder the NEP was as arbitrary as the court found the selection of Urick to be. \u00a0Commissioner Wall’s justification of the present warrant is based on Penn Steel’s previousviolations and the fact that foundries may be dangerous places to work. \u00a0 Thisreasoning begs the question.\u00a0 If the probable cause for the warrant was Penn Steel’sprevious violations, then the warrant should have been so limited.\u00a0 If a broad,wall-to-wall inspection was really due at that time under the NEP, then the warrantapplication should have described how Penn Steel was selected pursuant to the NEP. \u00a0Since the warrant application 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 intoa settlement merely to avoid the expense of litigating factual issues because he believesthat the case is controlled by a question of law and intends to seek review on thatquestion of law, he should make it clear that that is the reason, or at least one reason,for his agreement to the settlement.”