“Docket No. 80-2069 80-2322 SECRETARY OF LABOR, Complainant, v.SMITH STEEL CASTING CO., Respondent.OSHRC Docket Nos. 80-2069 and 80-2322DECISION Before:\u00a0 BUCKLEY, Chairman, and CLEARY, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), 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).This case is on remand from the United StatesCourt of Appeals for the Fifth Circuit.\u00a0 The Commission is to decide \”whatevidence will be considered on application of . . . [the Commission’s] rules respectingexclusion and admission of evidence seized under an invalid warrant.\”\u00a0 SmithSteel Casting Co. v. Donovan, 725 F.2d 1032, 1036 (5th Cir. 1984).\u00a0 The courtruled that an ex parte warrant obtained by the Secretary and used to inspect Smith Steel’splant in Marshall, Texas, was invalid because \”the OSHA regulations in effect duringthis period did not authorize ex parte procedures to obtain an administrative searchwarrant.\”\u00a0 Id. at 1034.\u00a0 Evidence gathered during the inspection wasused by the Secretary in a hearing before an administrative law judge on the merits ofcitations issued to Smith Steel; the judge affirmed the citations.\u00a0 We find that theevidence should not be excluded.IOn January 22, 1980, with the consent of Smith Steel, OSHA industrial hygienist JackMatthews and trainee Dan Thornhill conducted an inspection of the company’s foundry.\u00a0They determined that employees were exposed to silica dust, copper fumes, andexcessive noise and decided to make a return visit to the plant to measure foroverexposure.\u00a0 Thornhill attempted to do so on the following day, but was told bycompany officials that \”continuation of the inspection would not be permitted.\”\u00a0On February 25, 1980, in an ex parte proceeding, OSHA obtained a warrant permittingit to inspect Smith Steel’s \”workplace . . . [at] 510 Hazlewood, Harrison County,Marshall, Texas 75670.\”[[1]]\u00a0 The warrant was obtained from a United Statesmagistrate in the eastern district of Texas and \”authorized and directed\” OSHAto enter the above-described workplace at reasonable times during regular working hours for the limited purposes of determiningwhether or not the employees of Smith Steel Casting Corporation are exposed to healthhazards caused by exposure to silica, copper, toxic chemicals, and noise, inspecting anyother violation observed during such inspection, and investigating any other violationsbrought to your attention by any employee or representative of the employees . . . duringsuch limited inspection.The inspection was conducted on February 26-27,1980, by industrial hygienist Matthews.\u00a0 He tested for employee exposure to silicadust, copper fumes, and excessive noise.\u00a0 He also observed, or learned about from aSmith Steel official with safety responsibilities, certain alleged violations of therespiratory protection standard at 29 C.F.R. ? 1910.134.As a result of the inspection, OSHA issuedcitations to Smith Steel alleging that feasible engineering controls to limit exposures tosilica and copper fumes had not been installed, contrary to section 1910.1000(e); thatSmith Steel lacked an effective hearing conservation program, contrary to the standard atformer section 1910.95(b)(3); and violations of a number of provisions in section 1910.134governing the selection and use of respirators.[[2]]\u00a0 Smith Steel contested thecitations, arguing that no violations had occurred and that the evidence gathered duringthe inspection should be suppressed because it had been obtained pursuant to an invalidwarrant.\u00a0 Administrative Law Judge Edwin G. Salyers declared the ex parte warrantinvalid under Donovan v. Huffines Steel Co., 645 F.2d 288 (5th Cir. 1981),which had invalidated a warrant obtained ex parte by the Secretary under section 1903.4 asamended in 1978.[[3]]\u00a0 The judge found that Huffines Steel was\”controlling in this matter since the case . . . is venued in the FifthCircuit.\”\u00a0 Judge Salyers granted Smith Steel’s motion to suppress the evidenceand vacated the citations.The Commission set aside the judge’s decisionand remanded the case.\u00a0 It held that the Secretary was authorized to obtain thewarrant ex parte under the 1978 version of section 1903.4 and that the inspectionconducted under the warrant was valid.\u00a0 Smith Steel Casting Co., 82OSAHRC 37\/D10, 10 BNA OSHC 1764, 1982 CCH OSHD ? 26,136 (No. 80-2069, 1982).\u00a0 Afteran evidentiary hearing on remand, Judge Salyers affirmed the citations.\u00a0 He concludedthat Smith Steel violated section 1910.1000 by failing to install feasible engineeringcontrols to reduce employee exposure to silica dust and copper fumes; section1910.95(b)(3) by exposing employees to excessive noise and failing to implement aneffective hearing conservation program; and several subsections of 1910.134 by failing tomaintain a proper respiratory protection program and failing to comply with otherrequirements governing the selection and use of respirators.\u00a0 The Commission declinedreview of the judge’s second decision and Smith Steel appealed to the Fifth Circuit.The Fifth Circuit concluded that the ex partewarrant was invalid based on its holding in Huffines Steel that the 1978 version ofsection 1903.4 did not validly authorize ex parte warrants.\u00a0 The court stated thatthe Commission’s ruling was \”directly contrary to Huffines\” and could notstand.\u00a0 725 F.2d at 1035.\u00a0 The Fifth Circuit did not, however, hold that theinvalidity of the warrant required that the evidence gathered pursuant to it had to besuppressed.\u00a0 The court pointed to two possible reasons for not suppressing theevidence.\u00a0 First, the Commission might not apply Huffines Steel retroactivelyto suppress evidence obtained under an ex parte warrant issued before Huffines Steelwas decided.\u00a0 Second, a good faith exception to the exclusionary rule might beinvoked because the OSHA inspector believed reasonably and in good faith that the warrantwas valid.\u00a0 Noting that the Commission had previously employed a non-retroactivityrule but had refused to recognize a good faith exception to the exclusionary rule, thecourt declined to address the merits of the appeal and remanded to the Commission for theCommission to apply its own rules regarding exclusion or admission of the evidence.[[4]]725 F.2d at 1036.IIIn Chairman Buckley’s view, the Commission can impose sanctions on the Secretary forviolations of constitutional, statutory, or regulatory requirements.\u00a0 The Commissioncan do so in the exercise of its supervisory authority over the Act’s enforcement.\u00a0 BrooksWoolen Co., Nos. 79-45 and 79-128, slip op. at 3 (April 10, 1985) (view of ChairmanBuckley).\u00a0 See Babcock & Wilcox Co. v. Marshall, 610 F.2d1128 (3d Cir. 1979); Beauty Craft Tile of the Southwest, Inc., 84 OSAHRC ___, 12BNA OSHC 1082, 1984 CCH OSHD ? 27,091 (No. 80-471, 1984) (Buckley, Chairman, leadopinion); section 10(c) of the Act, 29 U.S.C. ? 659(c).\u00a0 In this case there is noconstitutional or statutory limit to the Secretary’s authority to obtain a warrant exparte.\u00a0 The Fifth Circuit decision involves the interpretation of a rule thatarguably imposed greater restrictions on the procedures the Secretary follows in obtaininga warrant than are mandated by the Fourth Amendment or the Occupational Safety and HealthAct.\u00a0 Davis Metal Stamping, Inc., No. 78-5775, slip op. at 7 (April 15,1985) (view of Chairman Buckley) (\”Davis Metal II\”).[[5]]\u00a0 Indeed,the Secretary has amended the regulation to expressly permit ex parte warrants.\u00a0 Seenote 1, supra.\u00a0 We are faced here with the narrow question whether suppressionof evidence is an appropriate sanction for the Secretary’s breach of the prior version ofhis procedural rule.Suppression of evidence is not an automaticremedy for a violation of a constitutional, statutory or regulatory requirement.\u00a0 SeeUnited States v. Leon, 104 S.Ct. 3405, 3412-13 (1984); Brooks Woolen, slipop. at 9 (view of Chairman Buckley).\u00a0 Suppression is an appropriate sanction wherethe Secretary acted improperly in obtaining or executing a warrant and where suppressionof evidence can be expected to deter the Secretary from engaging in similar misconduct inthe future.\u00a0 Davis Metal II, slip op. at 6 (view of Chairman Buckley); seeUnited States v. Leon, 104 S.Ct. at 3412-13; Brooks Woolen, slip op. at 3,9-12 (view of Chairman Buckley).Chairman Buckley concludes that the Secretary’saction in obtaining this warrant ex parte is not the type of conduct that warrantssuppression of evidence.\u00a0 In Davis Metal II, the commission held that evidenceobtained pursuant to a warrant obtained in breach of an earlier version of Rule 1903.4should not be suppressed.\u00a0 This case differs only slightly from Davis Metal II.\u00a0 Here, the warrant was obtained under the 1978 version of section 1903.4.\u00a0 Whenit was issued and executed, there were six federal court cases addressing the issue ofwarrant validity under that regulation.\u00a0 Of the circuit courts of appeal, only theTenth Circuit had then ruled on this issue, holding that the 1978 version of section1903.4 at issue here properly authorized the Secretary to obtain warrants ex parte.\u00a0 Marshallv. W. & W. Steel Co., 604 F.2d 1322 (10th Cir. 1979).\u00a0 See alsoIn the Matter of Worksite Inspection of S.D. Warren, Division of Scott Paper,481 F. Supp. 491, 492-94 (D. Me. 1979); Marshall v. Trinity Industries, Inc., 7 BNAOSHC 1851, 1853-54, 1979 CCH OSHD ? 23,943, pp. 29,039-40 (W.D. Okla. 1979); Marshallv. Horn Seed Co., 509 F. Supp. 1, 4-5 (W. D. Okla. 1979).\u00a0 Two district courtshad rejected the Secretary’s position and invalidated warrants obtained ex parte under the1978 regulation.\u00a0 Cerro Metal Products v. Marshall, 467 F. Supp. 869 (E.D. Pa.1979), and Marshall v. Huffhines Steel Co., 488 F. Supp. 995 (N.D. Tex. 1979).Under these circumstances, Chairman Buckley doesnot consider the Secretary’s action in continuing to seek warrants ex parte under his owninterpretation of his regulation to have been unreasonable or improper.\u00a0 There is noreason, therefore, to suppress the evidence in this case because there is no reason todeter the Secretary’s conduct in obtaining the warrant ex parte.\u00a0 Moreover,suppression in this case would not serve to deter the Secretary from seeking ex partewarrants in the future because section 1903.4 has since been amended to specificallyauthorize the Secretary to obtain ex parte warrants.\u00a0 See note 1, supra.\u00a0 Suppression of the evidence here would amount to an empty gesture.Chairman Buckley rejects Smith Steel’scontention that the Secretary acted improperly in applying for the warrant because he didnot notify the magistrate of court opinions that did not support the Secretary’sinterpretation of section 1903.4.\u00a0 Neither of the two district court decisionsholding ex parte warrants invalid was directly binding on the magistrate.\u00a0 SeeModel Code of Professional Responsibility DR 7-106(B)(1) and EC 7-23 (1982)(lawyers must disclose authority in \”controlling jurisdiction\”).\u00a0 Althoughthe case law was not unanimously in the Secretary’s favor, there were cases that didsupport the Secretary’s interpretation of his regulation and thus provided him with asound legal basis on which to proceed.Smith Steel also argues that the warrant wasoverbroad and authorized a more extensive inspection than requested in the warrantapplication.\u00a0 The Commission may not suppress evidence, however, where an allegederror or illegality in the issuance of a warrant stems from a determination by a federaljudge or magistrate that probable cause had been shown or that a warrant of a particularscope was justified.\u00a0 The Commission, as an executive branch agency, has no authorityto oversee or review the determination of an Article III court.\u00a0 See generallyBrooks Woolen, slip op. at 2-4 (view of Chairman Buckley); see also Babcock& Wilcox, 610 F.2d at 1136-37 (Commission cannot \”sit in direct review of thedecision of the magistrate\”); Beauty Craft, 12 BNA OSHC at 1083, 1984 CCH OSHDat pp. 34,929-30 (Buckley, Chairman, lead opinion).\u00a0 Because the Commission does nothave authority to supervise or review the decision of a federal judge or magistrate toissue a warrant it cannot act on Smith’s argument that the magistrate erred in deciding toissue a warrant of a particular scope.\u00a0 Smith Steel has not demonstrated any improperconduct by the Secretary in obtaining the warrant or conducting the inspection pursuant tothe warrant and Chairman Buckley therefore would deny its motion to suppress.IIICommissioner Cleary concludes that the evidence should not be suppressed because theSecretary acted in the good faith belief that he was complying with a lawful regulationwhen he sought the warrant ex parte.\u00a0 Evidence obtained under an inspection warrantthat is subsequently declared illegal may not be suppressed if the Secretary proceeded ingood faith and obtained the evidence in objectively reasonable reliance on the warrant.\u00a0 Davis Metal II, slip op. at 11-13 (view of Commissioner Cleary).\u00a0 Heagrees that this case differs only slightly from Davis Metal II.\u00a0 There, theSecretary sought a warrant ex parte under the original version of section 1903.4.\u00a0 Seenote 1, supra.\u00a0 Here, the Secretary proceeded under the regulation as amendedin 1978 to more clearly specify that he was permitted to obtain warrants ex parte.\u00a0Although at the time of the warrant application here, the district courts in CerroMetal and Huffhines Steel had declared warrants issued ex parte under theamended regulation invalid, the Tenth Circuit in W & W Steel and a number ofother district courts had determined that the amended regulation properly authorized exparte warrants.\u00a0 The Secretary was, therefore, entitled to proceed under his owninterpretation of section 1903.4 — an interpretation that was subsequently accepted bythe Commission and a majority of the courts of appeals that considered the issue.\u00a0Commissioner Cleary agrees that the good faith of the Secretary was not impaired by thefact that he did not inform the magistrate of the cases that had invalidated ex partewarrants issued under 1903.4.\u00a0 Although there was conflicting case law on the issue,none of it was binding on the magistrate and the Secretary had more substantial legalauthority supporting his own interpretation of his regulation.Commissioner Cleary rejects Smith Steel’scontention that evidence should be suppressed because the warrant was overbroad. SmithSteel argues that although the \”warrant application was confined to allegations ofdust and noise in two particular departments of the foundry,\” the resulting warrant\”authorized a wall-to-wall search of all 12 to 15 buildings and [Smith Steel’s]entire 40-acre spread unlimited as to the violations for which OSHA could search.\”\u00a0 Smith Steel’s arguments do not accurately describe either the Secretary’s warrantapplication or the warrant.\u00a0 The pertinent part of the warrant application provides:[W]e request that you issue a[n] InspectionWarrant or Order authorizing any duly appointed Compliance Officer to enter the premisesof Smith Steel Casting Corporation located at:\u00a0 510 Hazlewood, Marshall, HarrisonCounty, Texas for the limited purpose of inspecting and investigating, at reasonable timesduring regular working hours, to determine whether or not the employees of Smith SteelCasting Company are exposed to health hazards caused by exposure to silica dust, copperfumes, other toxic chemicals, and noise, inspecting any other violations observed duringsuch limited inspection, and investigating any other violations brought to their attentionby any employee or representative of the employees of Smith Steel Casting Company duringsuch inspection.The warrant application was supported by thedetailed affidavit of industrial hygienist Matthews.\u00a0 The following facts werepresented to the magistrate by the affidavit and a document it incorporated by reference.\u00a0 A \”high hazard, general safety inspection\” of Smith Steel’s work placehad been conducted between November 28 and December 4, 1979, by OSHA compliance officerWalter C. Hogan.\u00a0 As a result of that inspection, Hogan directed a referral notice tothe industrial hygiene section of OSHA’s Tyler, Texas area office \”for the purpose ofinspecting the establishment for determination of compliance with OSHA regulations onemployee exposure to air contaminants and to noise.\”\u00a0 The referral notice statedthat silica was observed in the foundry, that there was a buildup of sand dust on thefaces and clothing of employees, and that no respirators were worn.\u00a0 The referralnotice also stated that noise level monitoring revealed decibel levels that continued fora time period considerably in excess of that permitted and that \”no hearingprotectors\” were worn.Matthews and Thornhill, acting on the basis of the referral, conducted their \”initialwalk-around inspection of the plant\” on January 22, 1980.\u00a0 During theinspection, the affidavit stated, the inspectors observed a sand dust buildup on the facesand clothing of foundry employees, potentially overexposing the employees to silica dust;a welder in the finishing department using a copper-clad rod, which could produce harmfulcopper fumes; and 21 employees, performing a wide variety of tasks, potentiallyoverexposed to noise.\u00a0 Overexposure to silica dust and copper fumes are violations ofsection 1910.1000, overexposure to noise a violation of section 1910.95.The affidavit also stated that the \”plant was exited . . . with the stipulation thatfull, eight-hour shift sampling for noise and silica dust would be accomplished the nextday.\”\u00a0 Thornhill returned at about 7:50 a.m. on the following day.\u00a0 Atabout 8:50 a.m., he was \”finally refused permission to enter\” by Smith Steel’spresident Gerald Smith.\u00a0 The reason given by Mr. Smith for the refusal, the affidavitstated, was that \”the company did not have time to accompany Mr. Thornhill as theywere busy with abating all the violations found by Mr. Hogan.\”The warrant subsequently issued for theinspection of Smith Steel has been quoted above.\u00a0 It uses terms almost identical tothose in the application to describe the workplace, to list the hazards for which theSecretary could inspect, and to state specific bases on which the Secretary could inspectand investigate other violations.\u00a0 Although the warrant did not expressly limit theparticular areas of the designated work place that could be inspected, the warrantspecifically limited the hazards for which the Secretary could inspect.\u00a0 Authority toinspect for other violations was provided in the warrant only to the extent that theinspecting officers observed other violations \”during such limited inspection\”or that the other violations were \”brought to their attention by any employee\”or employee representative.As the facts presented demonstrate, the warrantwas supported by a considerable showing of probable cause.\u00a0 The lengthy high hazardgeneral schedule inspection of November-December 1979 had produced evidence ofoccupational health violations.\u00a0 The January 1980 inspection by Matthews andThornhill had confirmed the existence of similar, if not identical, violations.\u00a0 Mr.Smith had kept Thornhill waiting for about an hour and then given him a rather dubiousexcuse for refusing to permit Thornhill to continue the inspection and do the samplingthat had been previously agreed upon.\u00a0 The facts provided the magistrate with amplejustification for issuance of a warrant permitting an inspection of the entire facility.\u00a0 The Secretary would not be further required to show, for purposes of obtaining awarrant and in advance of an inspection, that these conditions were to be found in eachbuilding. Probable cause in the criminal law sense is not required for an OSHA inspection.\u00a0 Marshall v. Barlow’s, Inc., 436 U.S. 307, 320 (1978).\u00a0 Also, the recorddoes not support a finding that the Secretary executed the warrant in an unreasonablemanner or with bad faith.\u00a0 The evidence obtained under the warrant should nottherefore be excluded.[[6]]IV The Commission’s determination that the evidence should not be excluded complies with theFifth Circuit’s remand order to decide \”what evidence will be considered. . . .\”The court’s mandate does not appear to bar the Commission from exercising its authority toaddress the merits of the citations.\u00a0 See B.F. Goodrich Co., 81OSAHRC 23\/F1, 9 BNA OSHC 1444, 1981 CCH OSHD ? 25,261 (No. 2038, 1981).\u00a0 We note,however, that before Chairman Buckley’s term on the Commission but while CommissionerCleary was a Commission member, Smith Steel had petitioned for discretionary review ofJudge Salyers’ remand decision on the merits and the Commission had declined review; SmithSteel subsequently appealed to the Fifth Circuit.\u00a0 The Fifth Circuit’s decision makesit apparent that it will address the merits after receiving the Commission’s decision onremand.[[7]]\u00a0 The Commission therefore declines to address the merits at thisjuncture as a matter of discretion and restraint.[[8]]\u00a0 The case will be expedited bypermitting it to return to the court of appeals.Accordingly, the Commission finds that theevidence obtained under the inspection warrant should not be excluded.\u00a0 The judge’sdecision regarding those items not vacated by the Fifth Circuit remains the final order ofthe Commission.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARY Dated:\u00a0 APR 23 1985FOOTNOTES: [[1]] The Secretary sought to obtain the warrantunder the terms of 29 C.F.R. ? 1903.4.\u00a0 Before December 22, 1978, section 1903.4provided in part:? 1903.4 Objection to inspection.(a) Upon a refusal to permit a Compliance Safety and Health Officer, in exercise of hisofficial duties, to enter without delay and at reasonable times any place of employment orany place therein, to inspect . . . . [he] shall endeavor to ascertain the reason for suchrefusal, and he shall immediately report the refusal and the reason therefor to the AreaDirector.\u00a0 The Area Director shall immediately consult with the Assistant RegionalDirector and the Regional Solicitor, who shall promptly take appropriate action, includingcompulsory process, if necessary.On December 22, 1978, the Secretary amendedsection 1903.4 by adding a subsection (d).\u00a0 43 Fed. Reg. 59838-39.\u00a0 The newsubsection stated:For purposes of this section, the termcompulsory process shall mean the institution of any appropriate action, including exparte application for an inspection warrant or its equivalent.In adding subsection (d), the Secretary statedthat he had not followed notice-and-comment rulemaking because the new subsection was aninterpretative rule.\u00a0 Under section 4 of the Administrative Procedure Act, 5 U.S.C.? 553, notice-and-comment rulemaking is not required for interpretative rules. \u00a0After the inspection of Smith Steel’s plant, the United States Courts of Appeals for theThird and Fifth Circuits in Cerro Metal Products, Division of Marmon Group, Inc. v.Marshall, 620 F.2d 964 (3d Cir. 1980), and Donovan v. Huffines Steel Co., 645F.2d 288 (5th Cir. 1981), held that the amendment was not properly characterized as aninterpretative rule and was therefore invalid for not having been promulgated pursuant tonotice-and-comment rulemaking. Thereafter, in October 1980, the Secretary promulgated anew version of subsection (d) pursuant to notice-and-comment rulemaking.\u00a0 45 Fed.Reg. 65923.\u00a0 The new subsection, which remains in effect, provides:For purposes of this section, the termcompulsory process shall mean the institution of any appropriate action, including exparte application for an inspection warrant or its equivalent.\u00a0 Ex parteinspection warrants shall be the preferred form of compulsory process in all circumstanceswhere compulsory process is relied upon to seek entry to a workplace under this section.[[2]] The standards cited were 29 C.F.R. ??1910.134(a)(2), (b)(1), (b)(3), (b)(3), (b)(5), and (b)(9).[[3]] See note 1, supra.[[4]] The court vacated the Secretary’scitations alleging a lack of a hearing conservation program and a lack of engineeringcontrols for copper fumes after the Secretary had withdrawn those items during thependency of the appeal.\u00a0 The items that remain concern the selection and use ofrespirators and the installation of engineering controls to limit silica dust exposure.[[5]] The Fifth Circuit based its decision in part on the discussion of Rule 1903.4contained in the Supreme Court decision in Marshall v. Barlow’s, Inc., 436 U.S. 307(1978).\u00a0 The Supreme Court stated that \”the kind of process. . .apparentlyanticipated by the regulation provides notice to the business operator.\”\u00a0 436U.S. at 318.\u00a0 The Court further stated:Insofar as the Secretary’s statutory authorityis concerned, a regulation expressly providing that the Secretary could proceed ex parteto seek a warrant or its equivalent would appear to be as much within the Secretary’spower as the regulation currently in force and calling for \”compulsory process.\”436 U.S. at 320 n.15.[[6]] Commissioner Cleary notes that it is asyet undetermined whether any evidence pertinent to the citations still in dispute wasobtained as a result of any alleged overbreadth in the warrant or inspection.\u00a0 Ifnone was, there would be no basis for concluding that exclusion of the evidence wouldrequire the judge’s findings be disturbed.\u00a0 See note 4, supra.[[7]] The court stated, \”We decline toaddress further the merits of this appeal until the Commission has first decided whatevidence will be considered. . . .\” Smith Steel, 725 F.2d at 1036.[[8]] Chairman Buckley’s decision to limitreview should not be read to reflect the view that other issues raised by the judge’sdecision are unworthy of review.”