“SECRETARY OF LABOR,Complainant,v.SYNKOTE PAINT COMPANY,Respondent,SECRETARY OF LABOR,Complainant,v.KDK UPSET FORGING COMPANY,Respondent.OSHRC Docket No. 83-0002OSHRC Docket No. 83-0152_DECISION_BEFORE: Buckley, Chairman; Rader and Wall, Commissioners.BY THE COMMISSION:These consolidated cases[[1]] are before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”theAct\”). The Commission is an adjudicatory agency, independent of theDepartment of Labor and the Occupational Safety and HealthAdministration (\”OSHA\”). It was established to resolve disputes arisingout of enforcement actions brought by \”the Secretary of Labor under theAct and has no regulatory function. See section 10(c) of the Act, 29U.S.C. ? 659(c).Each Respondent challenges the validity of a warrant authorizing aninspection of its worksite. Both Respondents, who are represented by thesame counsel, filed motions for summary judgment and for suppression ofevidence on essentially identical grounds. Both Administrative Law JudgeDavid G. Oringer in docket no. 83-2, Synkote Paint Company (\”Synkote\”),and Judge Edward A. Bobrick in docket no. 83-152, KDK Upset ForgingCompany (\”KDK\”), denied these motions. Thereafter, Synkote and KDK bothentered into an \”agreed statement of facts\” in which each stipulatedthat it had violated the Act as alleged but also \”incorporate[d] byreference\” its \”prior controversy over the validity of the underlyingwarrant.\” In accordance with the stipulations, each judge then issued adispositive order affirming the Secretary’s citation or citations.[[2]]For the reasons stated below, we affirm the judges’ decisions.I.On September 14, 1982, the Secretary applied for a warrant to inspectSynkote’s worksite based on the provisions of OSHA Instruction CPL2.258, entitled \”Scheduling System for Programmed Inspections,\”[[3]]pertaining to the inspection of employers in industries having \”highpotential employee exposures to dangerous substances.\” CPL 2.25B,section 1.2.a. An affidavit accompanying the warrant application stated,With respect to the present inspection which OSHA seeks to perform, thedetermination was first made, consistent with the area office’s annualprojections, to perform a programmed inspection in the general industry(health) category. As set forth more fully in Appendix A of theInstruction, scheduling for general industry (health) is based on OSHA’sHealth Inspection Plan (HIP)….The HIP combines available data onselected substances previously reported as being found in each industryby [the National Institute for Occupational Safety and Health], thenumber of employees potentially exposed to these substances, and theseverity of potential adverse health effects….This employer is believed to be engaged in manufacturing of paints,lacquers, and chemical coatings, SIC [Standard IndustrialClassification] number 2851, which is included in the current IndustryPriority List for the State of New Jersey.The establishment is believed to be involved in the manufacturingprocess of paint, lacquers and chemical coatings, dumping, mixing,filling and labeling. Health hazards associated with associated withthese operations may include: exposure to metal pigments [sic] and dust(lead, chromates [,] silica, solvent vapors, and aromatic hydrocarbons).Although the basis for the warrant application was the Secretary’sadministrative plan for scheduling health inspections, the warrantapplication itself requested a warrant to conduct an inspection ofemployer’s entire establishment:4. The inspection and investigation will extend to the establishment orother area where work is performed by employees of the employer…and toall pertinent conditions, structures, machines, apparatus, devices,equipment, materials, and all other things therein…bearing on whetherthis employer is furnishing to its employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to its employees, andwhether this employer is complying with the Occupational Safety andHealth Standards promulgated under the Act and the rules, regulationsand orders issued pursuant to the Act.A magistrate of the United States District Court for the District of NewJersey concluded that the Secretary had shown \”an administrative plancontaining specific neutral criteria\” for an inspection under the Act,and on September 28, 1982 issued a warrant authorizing an inspection ofthe scope requested in the Secretary’s application.The Secretary’s application for a warrant to inspect KDK stated that itwas based on the provisions of OSHA Instruction CPL 2.25C[[4]] regardingthe selection of establishments for safety inspections. According to theapplication,[S]cheduling of inspections within the general industry safety categoryis based on an inspection register prepared by each OSHA Area Office andlisting all establishments selected for inspection on an annual basiswithin the general industry safety category of employment. Theinspection register is compiled from a statewide industry rankingreport, entitled the \”High Rate Industry List\” and supplied by theNational OSHA office, which lists, by . . . [SIC] numbers, allindustries in the state (except construction and most maritime) whichhave lost workday injury rate (LWDI) which equals or exceeds thenational lost workday rate per 100 employees for the private sector . . . .. . .. . . KDK Upset Forging Co., Inc. is believed to be engaged in themanufacture of iron and steel forging, SIC number 3642, which isincluded in the current High Rate Industry List for the State ofIllinois due to an industry LWDI rate of 14.6 which exceeds the 1980national average LWDI rate of 3.9.The warrant, issued by a magistrate of the United States District Courtfor the Northern District of Illinois, stated that application had beenmade to conduct a safety inspection:Sworn application having been made, reasonable legislative andadministrative standards having been prescribed, and probable causeshown by William H. Tschappat of the Occupational Safety and HealthAdministration, United States Department of Labor, for a programmedgeneral industry safety inspection and investigation of the workplace .. . .The warrant went on to order the Secretaryto enter the above described premises during regular working hours or atother reasonable times, and to inspect and investigate [in a reasonablemanner and to a reasonable extent including but not limited to authorityto take environmental samples and to take or obtain photographs relatedto the purpose of the inspection and questioning privately any owner,operator, agent, employer or employee of the establishment], theworkplace or environment where work is performed by employees of theemployer and all pertinent conditions, structures, machines, apparatus,devices, equipment, materials and all other therein (including a reviewof records required by the Act and other records which are directlyrelated to the purpose of the inspection – such records do not includeemployee medical records as defined by 29 CFR 1910.20(c)(6)) bearing onwhether this employer is furnishing to its employees employment and aplace of employment which are free from recognized hazards that arecausing or are likely to cause death or serious physical injuries to itsemployees, and whether this employer is complying with the occupationalsafety and health standards promulgated under the Act and the rules,regulations, and orders issued pursuant to the Act.[[5]]In their motions for summary judgment both Synkote and KDK contendedthat the warrants were invalid because they exceeded the probable causebasis for their issuance. Synkote contended that the warrant based onthe health inspection provisions of the Secretary’s programmedinspection plan was improper insofar as it authorized an inspection forsafety related violations of 29 U.S.C. ? 654(a)(1) and for violations ofoccupational safety rather than health standards under ? 654(a)(2). KDKargued that the warrant to inspect its workplace was predicated on aprogrammed safety inspection plan and therefore improperly allowed aninspection of health-related matters as well. On similar grounds bothemployers also challenged as overlord the warrants’ authority to inspectfor violations of all \”rules, regulations and orders.\”In opposing the motions for summary judgment and for suppression ofevidence on this ground, the Secretary argued that an inspection cannotbe defined as exclusively a health or exclusively a safety inspection.Judge Oringer agreed, characterizing any distinction between safety andhealth inspections as \”artificial\” and \”not predicated on a legalfoundation.\” The judge, however, further stated that even assumingsafety and health inspections are sufficiently distinguishable to causethe warrant in Synkote to be overlord insofar as it authorized a safetyinspection, that portion of the warrant could be severed and theremainder of the warrant preserved under the principle of \”redaction\” asapplied in United States v. Christine, 687 F.2d 749 (3d Cir. 1982).Stating that the Secretary had cited Synkote only for \”healthviolations,\” Judge Oringer concluded that in the absence of anyviolations of a safety nature, there was no evidence arising from thechallenged portion of the warrant to be suppressed. Judge Bobrick, inKDK, reasoned that he could not consider whether the warrant wassupported by probable cause because he lacked authority to review themagistrate’s determination that probable cause existed. He further foundno evidence that the inspection under the warrant was broader than theterms of the warrant application.On review Synkote and KDK contend that the judges erred in disregardingclear differences between an inspection for safety-related violationsand an inspection pertaining to health matters. Both argue that probablecause to conduct an inspection for one type of violation does notconstitute probable cause to inspect for the other type. Synkotecontends as well that Judge Oringer erred in applying the principle of\”redaction.\” In Synkote’s view, allowing a partially invalid warrant tobe severed and upheld in part subverts its fourth amendment right to beprotected from unreasonable inspections and reduces the deterrent valueof the exclusionary rule. Synkote also contends that redaction is notappropriate in civil proceedings such as those conducted before theCommission.[[6]]Assuming the warrants are overbroad as the employers contend, theSecretary emphasizes that neither employer was cited for a violation ofsection 5(a) of the Act beyond each warrant’s probable cause basis.Contending that the function of the Commission in review of challengesto warrants is not to examine the validity of the warrant issued by themagistrate but rather to decide whether to admit the evidence obtainedthrough the execution of the warrant, the Secretary argues that there isno evidence arising from any invalid portion of either warrant to besuppressed in these proceedings. Alternatively, the Secretary contendsthat under the redaction rule suppression of any evidence obtainedpursuant to overbroad portions of the warrants does not requiresuppression of evidence for which probable cause did exist.The Secretary finally argues that the exclusionary rule should not beapplied in Commission proceedings even if evidence has been improperlyobtained. If, however, the rule is appropriate, the Secretary urges theCommission to recognize a good faith exception, citing United States v.Leon, 104 S. Ct. 3405 (1984). Synkote and KDK argue that for a number ofreasons the Commission should adhere to its prior decision 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), in which theCommission ruled that the exclusionary rule applies and that the issuebefore it is not the Secretary’s good faith but whether the Secretaryacted properly under the fourth amendment in obtaining the evidence inquestion. In any event, Synkote and KDK contend that the Secretary didnot act in good faith in the circumstances presented here.II.In Marshall v. Barlow’s, Inc., 436 U.S. 307, 321 (1978), the Courtstated that probable cause for an inspection warrant could be based on\”a general administrative plan for the enforcement of the Act derivedfrom neutral sources.\” Since Barlow’s, the Secretary has formulated anumber of administrative plans for scheduling programmed inspections ofemployers, including the enforcement directives that are the basis forthe present warrants. In prescribing these selection procedures, theSecretary distinguished between matters pertaining to occupationalsafety and those pertaining to occupational health as a basis forinspection. Health and safety are addressed in separate and distinctsections of each directive, and substantially different methodologiesare employed in the selection process.[[7]]KDK and Synkote assert that the warrants in these cases were overbroadbecause the Secretary failed to specifically tailor the scope of thewarrants he sought to the probable cause basis for their issuance. Theemployers contend that the Secretary improperly sought warrants toconduct full-scope inspections encompassing both safety and health,based on probably cause to conduct only a safety inspection in KDK andonly a health inspection in Synkote.[[8]]KDK’s argument fails at the outset, for the warrant in that case canmost reasonably be read to authorize only a safety inspection. Thewarrant specifically stated that the Secretary had shown probable cause\”for a programmed general industry safety inspection….\” (Emphasisadded.) If it is true, as KDK argues, that the scope of an inspectionpermitted by a warrant must reflect the probable cause basis underlyingits issuance, then this language provided clear notice that the warrantdoes not suggest that it authorizes a full-scope health inspection aswell as full-scope safety inspection. It is highly significant that thewarrant did not authorize the Secretary to conduct personal sampling, acommon procedure in health inspections.[[9]] Donovan v. WollastonAlloys, Inc., 695 F.2d 1, 7 (1st Cir. 1982); see also Donovan v.Wollaston Alloys, Inc., 543 F. Supp. 53 (M.D. Pa. 1981). Similarly itdid not permit a review of medical records. The warrant did authorizethe Secretary to \”take environmental samples,\” but such samples canrelate to safety hazards as well as health hazards,[[10]] so thisprovision does not imply that the warrant authorizes more than a full-scope safety inspection.The only explicit reference to \”health\” in the warrant is theauthorization to determine \”whether this employer is complying with theoccupational safety and health standards promulgated under the Act . . ..\” The Act, however, uses the phrase \”occupational safety and healthstandard\” as a term of art,[[11]] and logically, its inclusion in thewarrant was simply a recitation of the statutory phrase rather thansubstantive authorization to conduct a health inspection as well assafety inspection. In any event, the specific reference to a safetyinspection in the first paragraph of the warrant defines the objectivesand limits of the inspection. See Donovan v. Wollaston Alloys, 695 F.2dat 7 (statement in warrant that inspection will cover employer’scompliance with \”occupational safety and health standards\” does notexpand scope of warrant beyond safety inspection when other material inwarrant stated that inspection was so limited.)Nor are we confronted here with an inspection that exceeded the scope ofthe warrant. KDK has neither alleged nor argued that the actualinspection went beyond safety. Also, there is no evidence that this wasthe case.Synkote presents a different situation. The warrant in that caseauthorized a broad-scope inspection with no language indicating it waslimited to a health inspection. Nevertheless, for the reasons thatfollow, we conclude that suppression of evidence would not be appropriate.In Chairman Buckley’s view, the Commission, as an agency within theexecutive branch, has no authority to review the actions of a judicialofficer of a court created under Article III of the Constitution. E.g.,Phoenix Forging Co., 85 OSAHRC ____, 12 BNA OSHC 1317, 1319, 1985 CCHOSHD ? 27,256 (No. 82-398,1985) (view of Chairman Buckley) and casescited therein. To entertain the argument by Synkote that provisions ofthe warrant were not supported by probable cause and were overbroadwould require the Commission to review the magistrate’s judgments thatwarrants of a particular scope should issue. Chairman Buckley believesthat the Commission may not consider these arguments.The Commission may, however, consider a motion to suppress evidencebased on other grounds. Under its supervisory authority over the Act’senforcement, the Commission may impose appropriate sanctions on theSecretary to deter misconduct by OSHA employees. Phoenix Forging, 12 BNAOSHC at 1320, 1985 CCH OSHD at p. 35,211-12. Evidence unlawfullygathered by OSHA may be suppressed where such a remedy can reasonably beexpected to deter similar misconduct by OSHA in the future. This mayoccur where OSHA’s warrant application contains false or misleadingstatements to induce the magistrate to find probable cause, or whereOSHA gathers evidence during an inspection unlawfully by, for example,exceeding the scope of the inspection stated in the warrant. See BrooksWoolen Co., 85 OSAHRC _____, 12 BNA OSHC 1233, 1234, 1236-37, 1985 CCHOSHD ? 27,233, pp. 35,148, 35,151-52 (Nos. 79-45 and 79-128, 1985) (viewof Chairman Buckley), aff’d, 782 F.2d 1066 (1st Cir. 1986).Synkote does not claim that any such misconduct on OSHA’s part occurred.It does not contend that the inspection exceeded the scope permitted bythe warrant. Nor is there any claim that the warrant applicationscontained any false information or was designed to mislead themagistrate in any way.[[12]] Moreover, even if the application exceededthe scope of OSHA Instruction 2.25B, it cannot be said that theinspector’s act in seeking a broad-scope warrant constituted misconductof such a nature as to justify the extreme sanction of suppression ofevidence. The error was not in presenting an application that may havebeen broader than regulations authorized. The error was in themagistrate’s failure to limit the warrant. That error cannot be reviewedby the Commission.[[13]] Chairman Buckley notes, moreover, that even ifthere were some reason to consider suppression, there is no evidence inthis case to suppress, as the Secretary has pointed out.Commissioner Wall notes that the Commission has held that it has theauthority to consider challenges to inspection warrants obtained by theSecretary. Sarasota Concrete Co., 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1981CCH OSHD ? 25,360 (No. 78-5264, 1981), aff’d, 693 F.2d 1061 (11th Cir.1982). The Eleventh Circuit expressly affirmed the holding in Sarasotathat the Commission can consider such challenges, 693 F.2d at 1066-67,and a number of other circuits have similarly held that the Commissionis a proper forum for the consideration of fourth amendment issues.Indeed, the courts generally hold that once the statutory review processbefore the Commission has been commenced, any objections to the validityof a warrant must be raised before the Commission. Robert K. BellEnterprises, Inc. v. Donovan, 710 F.2d 673 (10th Cir. 1983), cert.denied, 464 U.S. 1041 (1984); In re Establishment Inspection of MetalBank of America, Inc., 700 F.2d 910 (3d Cir. 1983); In re Inspection ofCentral Mine Equipment Co., 608 F.2d 719 (8th Cir. 1979); In re WorksiteInspection of Quality Products, Inc., 592 F.2d 611 (1st Cir. 1979). Thecourts recognize, as the Secretary correctly notes, that the Commissionas an administrative agency in the executive branch may not directlyreview the decision of a United States magistrate or district courtjudge to issue a warrant. Rather, the Commission decides whether to usethe evidence arising from an inspection conducted pursuant to thewarrant. In so doing, the Commission may exercise its inherent authorityto determine what evidence will be admissible in its proceedings and inparticular to develop criteria regarding the admission or exclusion ofevidence obtained under an invalid warrant. Smith Steel Casting Co. v.Donovan, 725 F.2d 1032, 1035-1036 (5th Cir. 1984); Sarasota Concrete,693 F.2d at 1066; Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1136-1137 (3d Cir. 1979).In Sarasota Concrete, the Commission held that evidence gathered underan invalid warrant would be suppressed even if the Secretary acted ingood faith in conducting the inspection. 9 BNA OSHC at 1614, 1981 CCHOSHD at p. 31,533. Since that time, the Supreme Court has held, in acriminal case, that evidence should not be suppressed if obtained inobjectively reasonable reliance on a subsequently invalidated searchwarrant. United States v. Leon, 104 S.Ct. 3405, 3421 (1984). The Courtreasoned that the purpose of the exclusionary rule is to deter officialmisconduct in the conduct of inspections and that, when an officerconducts an inspection in objectively reasonable reliance on a warrant,there is no misconduct to deter even if the warrant is subsequently heldinvalid.Commissioner Wall believes that this reasoning is equally applicable tocases before the Commission. The ultimate aim of the exclusionaryrule–to deter official misconduct–is the same in both OSHA andcriminal cases. If anything, warrants should be reviewed less criticallyin civil cases. The Supreme Court noted in Barlow’s: \”Probable cause inthe criminal law sense is not required.\” 436 U.S. at 319. In a recentOSHA case, the court said:The Supreme Court decided in Camara and Barlow’s that the requirementsfor the issuance of administrative search warrants are more lenient thanfor criminal search warrants, in that they require a lesser showing ofprobable cause. We have found no authority which suggests that morerestrictive requirements obtain for the issuance of administrativesearch warrants than for criminal search warrants.Donovan v. Enterprise Foundry, 751 F.2d at 36. Accordingly, CommissionerWall concludes that the part of Sarasota Concrete declining to recognizea good faith exception to the exclusionary rule is no longer viable, andhe will not suppress evidence gathered by OSHA inspectors in objectivelyreasonable reliance on a search warrant.Commissioner Wall concludes that the Secretary acted in objectivelyreasonable reliance on the warrant in conducting its inspection ofSynkote’s workplace. Before the inspection was conducted, Synkote movedto quash the warrant and a hearing was held in federal district court.The court rejected Synkote’s argument that the warrant application didnot establish probable cause for an inspection and upheld the warrant.Thus, at the time the Secretary conducted the inspection, Synkote had afull opportunity to argue the validity of the argument in an adversaryproceeding, and its arguments had been rejected. The Secretary wastherefore justified in believing that the warrant was valid. As theSupreme Court has said:Whatever an officer may be required to do when he executes a warrantwithout knowing beforehand what items are to be seized, we refuse torule that an officer is required to disbelieve a judge who has justadvised him, by word and by action, that the warrant he possessesauthorizes him to conduct the search he has requested. Massachusetts v.Sheppard, 104 S.Ct. 3424, 3429, (1984) (footnote omitted). See alsoDonovan v. Federal Clearing Die Casting Co., 695 F.2d 1020, 1024-25 (7thCir. 1982) (despite invalidity of warrant, evidence will not besuppressed because secretary acted in reasonable good faith belief thatwarrant was valid).Moreover, the particular overbreadth argument made by Synkote–that thewarrant was overbroad in authorizing a full-scope inspection based onprobable cause for only a health inspection–is not so clearlymeritorious that the Secretary should have recognized that the warrantwas overbroad. Although the Secretary’s guidelines established differentcriteria for safety and health inspections, they also indicated that\”[a] programmed inspection should generally be a comprehensiveinspection of the establishment with the exception of low hazard areas .. . . OSHA Instruction CPL 2.25C, Sec. I. Even assuming that theSecretary may not apply for both a health and safety inspectionpredicated on a showing of probable cause based on one part of hisadministrative plan, a point we do not reach here, no Commission orcourt decision had, at the time of the inspection, indicated that thiswas impermissible.[[14]] Indeed, the Commission had apparently endorsedthe practice, saying, albeit in dictum, \”[a] plant-wide inspection isusually permissible when probable cause is established under a generaladministrative plan.\” Sarasota Concrete, 9 BNA OSHC at 1617, 1981 CCHOSHD at p. 31,536. Thus, the state of the law at the time of theinspection did not put the Secretary on notice that the warrant might beoverbroad.Commissioner Wall also notes that Synkote does not claim that theinspection of its worksite was broader than a health inspection and KDKdoes not claim that its inspection went beyond a safety inspection.Except for the poster and record keeping items in Synkote, the onlycitations were for health violations in Synkote and for a safetyviolation in KDK. Therefore, even assuming the warrants were overbroad,the inspections that were actually conducted were within permissiblelimits, and the evidence supporting the alleged violations was relatedto the probable cause basis for the warrants. In similar circumstances,the courts of appeals for the circuits in which KDk’s and Synkote’sworkplaces are located have held that warrants should be redacted andthat only evidence gathered under the overbroad portions of the warrantsshould be suppressed. Donovan v. Fall River Foundry Co., 712 F.2d 1103,1111-12 (7th Cir. 1983); United States v. Christine, 687 F.2d 749 (3dCir. 1982) (redaction of criminal warrant consistent with FourthAmendment). Commissioner Wall believes that the Commission is bound tofollow the decisions of the courts of appeals in cases within thejurisdiction of those courts and, on this basis, would redact thewarrants in these cases by striking out the provisions permitting theSecretary to conduct a health inspection in KDK and a safety inspectionin Synkote. With the warrants thus modified, all of the evidencerelevant to the alleged violations was gathered under the valid portionsof the warrants, and there is no basis to suppress that evidence.III.KDK and Synkote argue that the warrants were invalid for a number ofother reasons. We find that none of these arguments provides any basisto suppress evidence in these case. The employers contend thatprovisions in the warrants permitting inspection of records are invalidbecause the Act does not provide for inspection of records pursuant to awarrant. The Commission has previously rejected this argument withrespect to records employers are required to maintain under the Act, andwe adhere to that precedent. Thermal Reduction Corp.,85 OSAHRC ____, 12BNA OSHC 1264, 1985 CCH OSHD ? 27,248 (No. 81-2135, 1985). Thus, theprovisions of the warrants authorizing inspection of records required bythe Act were valid.The employers further argue that the warrants invalidity authorized theinspection of records beyond those required to be kept under the Act.Chairman Buckley would not consider the argument because it questionsthe magistrates’ decisions to issue the warrants. Phoenix Forging, 12BNA OSHC at 1319, 1985 CCH OSHD at p. 35,211. Commissioner Wall does notbelieve it is necessary to decide the issue. The employers do not claimthat the Secretary actually sought to inspect any records beyond thoserequired to be kept under the Act. Therefore, even if the recordsinspection provisions were overbroad, the inspections that were actuallyconducted were within permissible limits. Again applying the doctrine ofredaction, as discussed above, there is no invalidity obtained evidenceto suppress. Donovan v. Wollaston Alloys, 695 F.2d at 8.Chairman Buckley and Commissioner Wall join in rejecting KDK’s andSynkote’s arguments that the provisions of the warrants authorizingemployee interviews are invalid and that the warrants are invalidbecause the Secretary’s enforcement directives were not published in theFederal Register. The Commission previously rejected both arguments inPhoenix Forging, 12 BNA OSHC at 1320-24, 1985 CCH OSHD at pp. 35,212-16.Accordingly, the judges’ decisions are affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATE: AUG 27 1986RADER, Commissioner, concurring in part and dissenting in part:As the majority opinion points out, the Secretary has two administrativeinspection plans for scheduling OSHA inspections. He has one plan forscheduling health inspections and another, different plan for schedulingsafety inspections. Establishments are selected for inspections underthe health plan based on the potential use of hazardous substances, suchas carcinogens. Under the safety plan establishments are selected forinspections based on their accident rate. The Secretary’s programdirectives, Field Operations Manual and Industrial Hygiene TechnicalManual make it clear that health inspections and safety inspections arevery different. They are scheduled differently and the method ofinspection and effect on the workplace is different. The Secretary’scompliance personnel are well aware of the difference between a safetyand a health inspection.Here, the Secretary applied for a warrant to inspect Synkote based onhis plan for scheduling health inspections of employers in industrieswhere employees may be exposed to hazardous substances. Conversely, theapplication for a warrant to inspect KDK was predicated on theSecretary’s plan for conducting safety or physical hazard inspections inindustries having a certain injury rate. In both cases, however, thewarrants requested and issued were the same; they authorized invirtually identical language an inspection of the entirety of eachemployer’s establishment for both safety and health. Each warrantauthorized the inspection to extend to any relevant matter bearing onwhether the employer was furnishing a workplace free from recognizedhazards and whether the employer was in compliance with safety andhealth standards, rules, regulations, and orders promulgated under the Act.The pivotal issue before us is whether these warrants areunconstitutionally overbroad because they were not tailored to theprobable cause for their issuance.I join with Commissioner Wall in holding that the constitutionalchallenges to the scope of the warrants raised by Synkote and KDK areproperly before the Commission. As Commissioner Wall points out, anumber of the United States Circuit Courts of Appeals have held that theCommission is a proper forum for the consideration of fourth amendmentissues, and that once the statutory Commission review process has beencommenced, any objections to the validity of a warrant must be raisedbefore the Commission. Smith Steel Casting Co. v. Donovan, 725 F.2d1032, 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); In re Establishment Inspection of Metal Bank of America,_Inc.,700 F.2d 910 (3d Cir. 1983); Donovan v. Sarasota Concrete Co., 693 F.2d1061 (11th Cir. 1982); Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128,1136-1137 (3d Cir. 1979); In re Inspection of Central Mine EquipmentCo., 608 F.2d 719 (8th Cir. 1979); Bethlehem Steel Corp. v. OSHRC, 607F.2d 871 (3d Cir. 1979); In re Worksite Inspection of Quality Products,Inc., 592 F.21 611 (1st Cir. 1979). In accordance with this authoritythe Commission in Sarasota Concrete Co., 81 OSAHRC 48\/A2, 9 BNA OSHC1608, 1981 CCH OSHD [[P]] 25,360 (No. 78- 5264, 1981), held that an OSHAwarrant was overbroad in scope and suppressed the evidence obtainedthereunder. On appeal the Eleventh Circuit expressly affirmed theCommission’s decision. 693 F.2d at 1066-67. The question of theauthority of the Commission to rule on these constitutional warrantquestions is therefore settled.Chairman Buckley expresses the view that the Commission as anadministrative agency in the executive branch may not directly reviewthe decision of the magistrate or court to issue a warrant. However, thecourts have specifically ruled that the Commission should review themagistrate’s determination of probable cause and \”make its own judgmentas to the propriety of the warrant\” in connection with admitting orexcluding evidence in our proceeding.[[15]] Sarasota Concrete, supra,693 F.2d at 1066,.Babcock & Wilcox, supra, 610 F.2d at 1136. InBethlehem Steel, supra, the Third Circuit stated that \”[C]onceding,arguendo that an administrative agency is not ordinarily considered theappropriate forum for the resolution of constitutional claims, we thinkthere are compelling reasons for insisting that fourth amendment claimsfor the suppression of evidence in OSHA enforcement cases be tenderedfirst to the Commission.\” 607 F.2d at 876.Because the courts have so clearly directed that constitutionalchallenges to OSHA warrants should be ruled on by the Commission, Iagree with Commissioner Wall that the Commission must consider whetherwarrants of a particular scope should issue. However, I do not agreethat the Secretary’s conduct in obtaining and executing obviouslyoverbroad warrants should be excused.[[16]]Pursuant to Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), theSecretary has formulated a number of administrative plans for schedulingprogrammed OSHA inspections of employers. In prescribing these selectionprocedures the Secretary clearly distinguished between safetyinspections and health inspection. Not only are health and safetyaddressed in separate and distinct sections of each directive, butsubstantially different methodologies are employed in the selectionprocess.[[17]] Thus, each of the directives at issue in these cases, CPL2.25B and CPL 2.25C, contains a section (\”I\”) entitled \”Guidelines andProcedures,\” consisting of several subsections, including section I.1,\”Inspection Scheduling for General Industry (Safety),\” and section I.2,\”Inspection Scheduling for General Industry (Health).\” Each directivealso has an Appendix A, \”Health Inspection Plan,\” and Appendix B,\”Summary Description of the Statewide Industry Ranking Reports andEstablishment Lists,\” which describe in greater detail the health andsafety methodologies respectively.[[18]] As the warrant applicationsthemselves indicate, selection for inspection under the first subsection(safety) is based on the industry’s injury rate, whereas thedetermination whether to inspect for health matters is predicated on thedegree of employee exposure to dangerous substances. The HealthInspection Plan provision of each directive explain the basis for thedifference in methodologies:In scheduling General Industry (safety) inspections, industries (SIC’s)are selected primarily on the basis of the frequency of injuries inthose industries. In comparison with injury incidence rates, however,ILLNESS [sic] incidence rates often do not accurately reflect healthhazards in the workplace. Targeting of General Industry (health)inspections, therefore, is based on the agency’s Health Inspection Plan(HIP). The HIP selects industries with the greatest potential for healthproblems.CPL 2.258, Appendix A (footnote omitted).[[19]]In these cases, there is no dispute that the Secretary’s application forthe warrants was based on his determination that probable cause existedto inspect Synkote for matters pertaining to occupational health but notsafety and KDK for the converse. The warrant applications themselves sostate, and the Secretary so conceded before the judges below.[[20]]Nevertheless, the Secretary requested and was granted authority toinspect each employer for matters relating to both occupational safetyand occupational health. The Secretary’s application for an overbroadwarrant in each case, and the magistrates’ grant of such warrants,clearly is contrary to the well-settled principle that warrants issuedfor inspection under the Act must be tailored to the probable causebasis for their issuance. Donovan v. Wollaston Alloys Inc., 695 F.2d 1,6-7 (1st Cir. 1982); Sarasota Concrete, supra, 693 F.2d at 1068-1070.Marshall v. Horn Seed Co., 647 F.2d 96, 100 (10th Cir. 1981); Marshallv. North American Car Co., 626 F.2d 320, 324 (3d Cir. 1980); Marshall v.Central Mine Equipment Co., 608 F.2d 719, 720 n.1 (8th Cir. 1979).[[21]]It is well established that commercial enterprises have a legitimateprivacy interest as to their worksites, facilities, or premises. G.M.Leasing Corp. v. United States, 429 U.S. 338, 353 (1977); See v. City ofSeattle, 387 U.S. 541, 544 (1967). See In re Carlson, 580 F.2d 1365(10th Cir. 1978) (fourth amendment applicable to search and seizure fortax collection by IRS agents of property used in the conduct of abusiness). The fourth amendment’s protection against unreasonablesearches, which implements this right, requires that entry besufficiently limited in scope and purpose so as not to be unreasonablyburdensome.Barlow’s, supra, 436 U.S. at 323 n.21; Camara v. Municipal Court, 387U.S. 523, 532 (1967). For an inspection to be reasonable under thefourth amendment, the warrant authorizing an inspection must be properlytailored and limited to the probable cause shown for the warrant’sissuance. North American Car, supra, 626 F.2d at 324; Burkart RandallDivision of Textron, Inc. v. Marshall, 625 F.2d 1313, 1325 (7th Cir.,1980); Marshall v. Pool Offshore Co., 467 F.Supp. 978, 982 & n.4 (W.D.La. 1979). An overly broad inspection violates the fourth amendmentregardless whether any citations are issued as a result of theinspection. Weyerhaeuser Co. v. Marshall, 592 F.2d 373, 376 n.2 (7thCir. 1979). See United States v. Calandra, 414 U.S. 338, 354 (1974)(search made without probable cause consummates fourth amendmentinjury).[[22]]In addition to limiting the scope of the inspection to the probablecause for its issuance, the warrant also serves to apprise the employerof the permissible limits of the inspection beyond which the inspectormay not go. Camara, supra, 387 U.S. at 532. Absent such information,there will be no effective restraints on the discretion of lawenforcement officers in the conduct of their search, nor will theemployer have any assurance that the public interest in the inspectionof its premises outweighs the invasion of privacy the inspectionentails. Michigan v. Tyler, 436 U.S. 499, 507-508; Camara, supra, 387U.S. at 535-37; Sarasota Concrete, supra, 693 F.2d at 1067. SeeBarlow’s, supra, 436 U.S. at 323.The warrants issued in these cases were overbroad. Although the probablecause to inspect Synkote was the Secretary’s health inspection plan,even the majority recognizes that the warrant authorized both a healthand a safety inspection. Similarly, the probable cause to inspect KDKwas the Secretary’s safety inspection plan, yet the warrant authorizedboth a safety and a health inspection. The Secretary’s Field OperationsManual and Industrial Hygiene Technical Manual make it quite clear thatthese are two different types of inspections, and that the inspectionprocedures and effect on the employer’s workplace differ materially. Forinstance, health inspections routinely include sampling of noise levelsand air contaminants by attaching monitoring devices to employees in theworkplace[[23]]–a procedure much different than a safety inspectionwhere the compliance officer inspects for more mechanical type hazardssuch as unguarded machines. The conclusion that these warrants areoverbroad is buttressed by the First Circuit’s determination inWollaston Alloys, supra, that a warrant based on the Secretary’s safetyinspection plan was improper \”with respect to the taking of samples bypersonal sampling devices, a procedure that focuses on healthviolations.\” 695 F.2d at 7. (See also 695 F.2d at 4 n.4.)The majority attempts to save the KDK warrant by stating that it waslimited to safety matters because it did not expressly authorizepersonal sampling of employees. To the contrary, however, the KDKwarrant permits the Secretary to inspect \”in a reasonable manner and toa reasonable extent including but not limited to authority to takeenvironmental samples . . . .\” The Secretary’s regulation in effect whenthis warrant was issued makes it quite clear that this languageauthorizes personal sampling.[[24]] Similarly, the Secretary hasindicated in rulemaking that personal sampling of employees is areasonable inspection technique for obtaining environmental samples. 47Fed. Reg. 6531, 55479 (1982). See Service Foundry Co. v. Donovan, 721F.2d 492 (5th Cir. 1983); In re Establishment Inspection of Keokuk SteelCastings, Division of Kast Metals Corp., 638 F.2d 42 (8th Cir. 1981).Furthermore, even assuming the warrant does not authorize personalsampling of KDK’s employees, the majority agrees that it allows othertypes of environmental sampling. In promulgating the current regulation,the Secretary stated that while personal sampling of employees is thepreferred method of determining employee exposure to airbornecontaminants during a health inspection, other methods, such as areasampling or having the inspector wear the sampling device whileaccompanying employees, may be used to conduct environmental sampling.47 Fed. Reg. 55479 (1982). Even assuming, as the majority states, thatenvironmental sampling is a permissible safety inspection method aswell, the fourth amendment is not satisfied by placing an employer inthe position of guessing whether an inspection will be limited to onetype of violation, health or safety, when it authorizes an inspectionmethod equally applicable to both types.[[25]] The warrants issued inthese cases thus authorized inspections that far exceeded the probablecause for their issuance, and violated the employers’ fourth amendmentrights.The Secretary contends that even if the warrants are overbroad in scope,we should admit the evidence arising from the warrants because it is notappropriate to exclude evidence in Commission proceedings as a remedyfor fourth amendment violations. The Secretary also asserts that theevidence involved here was acquired in reliance on those portions of thewarrants for which probable cause did exist and that he acted in goodfaith in relying on the warrants for the acquisition of that evidence. Ibelieve that to admit this evidence on the theories advanced by theSecretary would thwart the application of the fourth amendment to theAct in accordance with the Barlow’s decision.Whether the exclusionary rule is applicable in particular proceedingsdepends upon its value in deterring the improper conduct of lawenforcement officers, balanced against the costs of suppression. UnitedStates v. Leon, 104 S.Ct. 3405, 3412-13 (1984); United States v. Janis,428 U.S. 433, 447 (1976); Sarasota Concrete, supra, 9 BNA OSHC at 1613,1981 CCH OSHD at p. 31,532. I believe we should adhere to our priordecision in Sarasota Concrete, in which we determined that the deterrentvalue of the exclusionary rule justifies its use in our proceedings. Aswe noted in Sarasota Concrete, under the Act’s centralized enforcementscheme the Secretary has statutory authority to determine the manner inwhich all section 8 inspections are conducted. He employs and supervisesthe personnel who conduct those inspections. He also decides whichcontested citations will be prosecuted. He thus \”has the capability ofissuing and enforcing guidelines to effectuate our holdings involvingfourth amendment claims and to respond quickly to the announcement ofthese holdings.\” 9 BNA OSHC at 1614, 1981 CCH OSHD at p. 31,532. Wetherefore concluded that application of the exclusionary rule inCommission proceedings \”would have a relatively rapid and widespreadeffect in ensuring that OSHA inspections are conducted in accordancewith the fourth amendment.\” Id. On review, the Eleventh Circuitagreed, and upheld application of the exclusionary rule in ourproceedings. This conclusion is also consistent with Savina HomeIndustries, Inc. v. Secretary of Labor, 594 F.2d 1358 (10th Cir. 1979),and Babcock & Wilcox, supra, as well as with Weyerhaeuser Co. v.Marshall, 592 F.2d 373 (7th Cir. 1979), in which the court suppressedevidence to remedy a fourth amendment violation in a challenge to anOSHA warrant. As the appellate court stated in Sarasota Concrete, \”[i]ffourth amendment rights are to be recognized in an OSHA context, itseems reasonable that the only enforcement mechanism developed to dateshould likewise be recognized.\” 693 F.2d at 1071.[[26]]The Secretary alternatively contends that even if the exclusionary ruleis applicable to our proceedings, all the evidence gathered pursuant tothese warrants should not be suppressed. Rather, he urges that thewarrants should be \”redacted\” and only evidence obtained under theoverbroad portions of the warrants should be excluded.As a practical matter, the language of the warrants is not sufficientlyparticular to be severable. The warrant language merely tracks theprovisions of the Act which set forth the overall standards of conductrequired of employers and require inspections to be \”reasonable.\” SeeWeyerhaeuser Co. v. Marshall, 452 F. Supp. 1375, 1379-80 (E.D. Wis.1978), aff’d, 592 F.2d 373 (7th Cir. 1979) (paraphrasing of statute inwarrant application insufficient).[[27]]It is also important to note that the cases the Secretary cites insupport of his argument for partial suppression of evidence, orredaction of the warrants, are primarily criminal in nature. The use ofevidence in criminal cases is vastly different than in civil casesbefore the Commission under the Act. The distinctions are well-stated byChairman Buckley in Brooks Woolen Co., 85 OSAHRC ____,12 BNA OSHC 1233,1236-37, 1985 CCH OSHD ? 27,233, pp. 35,151-52 (Nos. 79-45 and 79-128,1985), aff’d, No. 85-1424 (1st Cir. Jan. 29, 1986). As Chairman Buckleyexplained, the suppression of evidence normally will defeat the punitivepurposes of the criminal law because evidence of a crime, oncesuppressed, usually cannot be recovered. Different considerations applyin cases under the Act, however, because the purposes of the Act are notpunitive but rather remedial. Thus, the Act is intended to achieve safeand healthful working conditions through the elimination of recognizedhazards and compliance with standards promulgated under the Act. AsChairman Buckley stated,If evidence from an unlawful OSHA inspection is suppressed, theSecretary can seek to obtain similar evidence from a subsequent, validinspection or by other means. See section 8(b) of the Act, 29 U.S.C. ?657(b) (Secretary has authority to issue subpoenas in investigatingpossible violations of the Act). If conditions in the employer’sworkplace have changed to the extent that evidence of a violation nolonger exists, then any violation has ceased to exist, and the Secretaryhas achieved the result he sought by initiating the enforcement action.If conditions have not changed, the Secretary can reacquire the evidenceby lawful means. He will have lost some time and resources, but in manycases the lost time and resources will be less than he would expend inlitigation arising from questionable inspection practices. In any event,the cost of suppression is much less than it is in criminal cases.These observations are consistent with the case law discussing theshowing necessary to establish probable cause for OSHA inspections. Thecases clearly demonstrate that suppression of evidence obtained from animproper warrant will not preclude the Secretary from reapplying for awarrant to conduct an inspection of proper scope. Thus, any reasonablegrounds for believing that violations may be ongoing or continuing in aplant or worksite will qualify for obtaining a warrant.[[28]] For thisreason, the principles supporting redaction of a criminal warrant do notapply with equal force to an administrative inspection warrant.Review of OSHA warrant cases reveals no clear authority for redactionhere. Factually, the cases cited by the Secretary are significantlydifferent. In Wollaston Alloys, supra, the court upheld the warrantbecause the Secretary had agreed in writing prior to the inspection tolimit the scope of the inspection.[[29]] Likewise, in Rockford DropForge Co. v. Donovan, 672 F.2d 626 (7th Cir. 1982), the warrant waslimited to certain specific areas within the employer’s plant, and thecourt, in an action arising before the warrant was fully executed,concluded that it could accept the Secretary’s assertion that theinspection would be limited in a manner consistent with the warrant.Thus, the limitations on the inspections in Wollaston Alloys andRockford Drop Forge were firmly established before the inspectionsoccurred. In Donovan v. Fall River Foundry, 712 F.2d 1103 (7th Cir.1983), the court, citing Rockford Drop Forge, concluded that it would beappropriate to \”reform\” the warrant to reflect the scope of the actualinspection. In that case the warrant was predicated on a complaint andthe Secretary had voluntarily limited the scope of his inspection to thecomplaint area. There are no comparable facts in the records in thecases before us to indicate that there was no invasion of privacy beyondthe probable cause for the warrants.Contrary to Commissioner Wall’s analysis, I do not believe that thecourts have, or would, apply the redaction principle to anadministrative OSHA warrant after the inspection and the wrongfulinvasion of privacy has already taken place. Indeed, in North AmericanCar, supra, the Third Circuit quashed the entire warrant because it wasoverbroad in scope. 626 F.2d at 324. Similarly, in Sarasota Concrete,supra, the Eleventh Circuit affirmed the Commission’s decision tosuppress all evidence obtained under an overbroad warrant. 693 F.2d at 1072.Certainly, a rule requiring the suppression of all evidence obtainedfrom an overbroad warrant, regardless whether any of the evidence can belinked to discrete, severable portions of the warrant, would notseriously impede the enforcement of the Act. In the context of thepresent cases such a ruling means only that the Secretary must prepare aseparate warrant form for the magistrate’s signature for safety andhealth inspections. On balance, this slight burden on the Secretary willprovide substantial protections against unconstitutionally broadinspections.On the other hand, application of the redaction principle in ourproceedings would remove any incentive whatever for the Secretary tocomply with the fourth amendment, since the Secretary would then beencouraged to apply for warrants of the broadest possible scope knowingthat the evidence he would have obtained under a properly drawn warrantwould never be suppressed. In addition to the irreparable loss ofprivacy and the burden to the employer resulting from an inspectionpursuant to an overly broad warrant, the Secretary could use such awarrant as a pretext for conducting a \”fishing expedition\” as a meansfor obtaining evidence which, even if suppressed initially, could beavailable for subsequent warrant applications. Thus, a rule favoringonly partial suppression of evidence would not preclude the Secretaryfrom using an overly broad warrant to \”bootstrap\” a showing of probablecause he otherwise would not be able to establish.The exclusion of evidence serves the salutary purpose of ensuring thatenforcement officers act in a manner consistent with the fourthamendment. Indeed, the rule is the only effective method for ensuringthat fourth amendment rights are protected. Michiqan v. Tucker, 417 U.S.433, 447 (1974); United States v. Calandra, supra, 414 U.S. at 347;Elkins v. United States, 364 U.S. 206, 217 (1960). As the Court statedin Mapp v. Ohio, 367 U.S. 643, 655 (1961), the exclusionary rule isessential to preserving the fourth amendment as a \”freedom implicit inthe concept of ordered liberty.\” See Weeks v. United States, 232 U.S.383, 393 (1914).Evaluating the importance of the requirement of the fourth amendmentthat a warrant indicate the proper scope and purpose of an inspection,as compared with the relatively minor effect on the ultimate remedialpurposes of the Act resulting from the suppression of evidence in aCommission proceeding, it seems clear that primary significance shouldbe accorded to ensuring that warrants in Commission cases are properlytailored to their probable cause basis. In my view, the need to preservethe essential value of a warrant clearly outweighs the incidentalbenefit to the Secretary of admitting evidence attributable toparticular clauses and phrases within the warrant. To suppress only partof the evidence resulting from an overbroad warrant necessarily requiresa pretense that there are in fact two inspections–one permissible underthe fourth amendment and the other invalid. It is improper to allow theSecretary’s agents to circumvent the scope and notice requirements ofthe fourth amendment by such a fiction. United States v. Burch, 432 F.Supp. 961 (D. Del. 1977), aff’d without published opinion, 577 F.2d 729(3d Cir. 1978). I would therefore, hold that all all evidence resultingfrom an overly broad warrant will be suppressed in a Commissionproceeding, and that the doctrine of redaction will not be applied. SeeSarasota Concrete, supra, 693 F.2d at 1072 (Commission is empowered toadopt a rule of suppressing evidence arising from an overbroad warrantbased on a determination that the deterrent effect of the exclusionaryrule justifies its adoption as an appropriate sanction in Commissionproceedings). [[30]]Finally, the Secretary contends that the evidence should not be excludedbecause of the \”good faith\” of his inspectors. The Eleventh Circuit inSarasota Concrete affirmed the Commission’s decision in that case not torecognize a \”good faith\” exception to the exclusionary rule inCommission proceedings. Id. Thereafter, in Leon, supra, the SupremeCourt expressly held that evidence may not be suppressed when it isobtained by law enforcement officers acting \”in objectively reasonablereliance on a subsequently invalidated search warrant.\” 104 S.Ct. at3421. Unlike Commissioner Wall, I do not believe Leon requires us tooverrule Sarasota Concrete insofar as that decision rejects applicationof a \”good faith\” exception in Commission proceedings. As I state in mydissent in Pennsylvania Steel Foundry & Machine Co., No. 78-638 (August27, 1986), the considerations on which Leon is based do not apply inCommission proceedings. In any event, even assuming a \”good faith\”exception is generally applicable, the circumstances of these caresdemonstrate that the Secretary did not act in good faith.As the Court in Leon stated, law enforcement officers must have areasonable knowledge of what the law requires, and their reliance on thesufficiency of the warrant must be \”objectively reasonable.\” 104 S.Ct.at 3420-21 & nn. 20 & 23. The principle violated by the warrantshere–that a warrant must be tailored to the probable cause basis forits issuance–is a fundamental rule of fourth amendment law of which wemay reasonably expect the Secretary’s agents to be aware. TheSecretary’s instructions to his agents, and their own Field OperationsManual,[[31]] make quite clear the difference between health inspectionsand safety inspections. I conclude that the inspectors could not havehave reasonably assumed that warrants of unlimited scope to conductsafety and health inspections, based on a limited showing of probablecause to conduct just one or the other, would be valid.[[32]]In the circumstances, the situation in these cases is similar to that atissue in Sarasota Concrete, supra, in which the Secretary improperlysought and received a warrant to conduct a full-scope inspection basedonly on an employee complaint of limited nature. In affirming theCommission’s decision not to apply a \”good faith\” exception, the courtheld that \”[i]n essence, OSHA officials decided to risk a questionablesearch and now expect to escape responsibility by alleging good faith.Such risk taking with the constitutional rights of others hardly can becharacterized as acting in good faith.\” 693 F.2d at 1072. I think thatcharacterization is equally appropriate here.As I have noted, the fourth amendment requires that a warrant betailored to the probable cause for its issuance, so that the invasion ofprivacy rights is no more intrusive than necessary. This adherence towell-settled fourth amendment principles will not prevent the Secretaryfrom making inspections or enforcing the Act. Indeed, on review beforeus the Secretary does not dispute that each warrant could easily havebeen tailored to conform to the particular plan on which its issuancewas based. I believe we should require him to do so. FOOTNOTES:[[1]] These two cases present similar legal issues. Since neither caseinvolves any disputed questions of fact, we consolidate these cases fordecision pursuant to Commission Rule 9, 29 C.F.R. ? 2200.9.[[2]]0ne citation alleged that Synkote violated two provisions of theSecretary’s lead standard, 29 C.F.R. ?? 1910.1025(d)(2) and 1910.1025(d)(7), by not making an initial determination of possible lead exposureand by not conducting additional monitoring to detect possible new oradditional exposure. A second citation charged Synkote with not havingposted the OSHA informational notice, contrary to 29 C.F.R. ?1903.2(a)(1), and with failing to maintain a log of occupationalinjuries and illnesses required by 29 C.F.R. ? 1904.2(a). KDK wascharged with one violation of an occupational safety standard, 29 C.F.R.? 1910.215(b)(9), for failing to provide tongue guards on a grindingmachine.[[3]]This directive is one of a series of instructions issued by theSecretary to set forth the criteria and methods by which employers areselected for routine, \”programmed\” inspections, that is, inspectionsother than those based on complaints of unsafe or unhealthful workingconditions or on the occurrence of an accident resulting in injuries toemployees. See note 4 infra.[[4]] OSHA Instruction CPL 2.25C, effective October 1, 1982, is thesuccessor to CPL 2.25B. The purpose of these directives is toconcentrate programmed or scheduled inspections in those industriespresenting the greatest risk of health or safety hazards. See UnitedStates Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1147-48 n.1(5th Cir. 1984): Phoenix Forging Co., 85 OSAHRC _____, 12 BNA OSHC 1317,1985 CCH OSHD ? 27,256 (No. 82-398, 1985). However, on January 7, 1986,OSHA issued an instruction, CPL 2.71, which somewhat modifies theseinspection priorities by directing that a small percentage ofinspections will be conducted in industries having below-average lostworkday injury rates. 1 BNA Ref. File 21:9344. With this modification,the current programmed inspection directive is now designated CPL 2.25FCH- 2, February 3, 1986. 3 CCH ESHG New Developments ? 8783.[[5]]With some modifications, the two warrants essentially copy thebroad language of the Act. The inspection provision in section 8(a) ofthe Act, 29 U.S.C. ? 657(a), authorizes the Secretary(1) to enter without delay and at reasonable times any . . . workplaceor environment where work is performed by an employee of an employer; and(2) to inspect and investigate during regular working hours and at otherreasonable times, and within reasonable limits and in a reasonablemanner, any such place of employment and all pertinent conditions,structures, machines, apparatus, devices, equipment, and materialstherein . . . .The Supreme Court in Marshall v. Barlow’s Inc., 436 U.S. 307, 325(1978), held that section 8(a) was unconstitutional \”insofar as itpurports to authorize inspections without a warrant.\”[[6]] KDK and Synkote also challenge provisions of the warrantsauthorizing the Secretary to inspect certain types of employer recordsand to conduct interviews with employees. KDK and Synkote also claimthat the warrants are invalid because the Secretary’s enforcementdirectives have not been published in the Federal Register.[[7]] The Health Inspection Plan provisions of each directive explainthe basis for the difference in methodologies:In scheduling General Industry (safety) inspections, industries (SIC’s)are selected primarily on the basis of the frequency of injuries inthose industries. In comparison with injury incidence rates, however,ILLNESS [sic] incidence rates often do not accurately reflect healthhazards in the workplace. Targeting of General Industry (health)inspections, therefore, is based on the agency’s Health Inspection Plan(HIP). The HIP selects industries with the greatest potential for healthproblems. CPL 2.258, Appendix A (footnote omitted). The languageappearing in Appendix A of CPL 2.25 C is virtually identical.[[8]]The employers do not contend that the Secretary did not haveprobable cause for a safety inspection in KDK and a health inspection inSynkote.[[9]]In Synkote, for example, the warrant specifically authorized theSecretary to attach monitoring devices to employees.[[10]]For example, environmental sampling may be necessary to determinewhether an explosive concentration of flammable vapors is present in theworkplace. See 29 C.F.R. ? 1910.94(c)(6)(ii) (ventilation of spray boothmust dilute solvent vapor to at least 25 percent of solvent’s lowerexplosive limit).[[11]] Section 3(8) of the Act contains a definition of \”occupationalsafety and health standard.\” The term is thereafter used in numeroussections of the Act. Sections 4(b)(2), 5(a)(2), 6, 8(c)(3), 18(b),22(c)(1), 22(d), and 26.[[12]]The warrant application in Synkote informed the magistrate thatthe Secretary sought to conduct a health inspection under the provisionsof OSHA Instruction 2.25B. Thus, the magistrate was fully informed ofthe Secretary’s asserted probable cause basis for seeking the warrant.[[13]] Chairman Buckley also notes that, before the warrant in Synkotewas executed, the warrant was upheld by a U.S. District Judge in anaction in which Synkote argued the invalidity and overbreadth of thewarrant. Donovan v. Synkote Paint Co., Civil No. 82-3428 (D.N.J. Nov.29, 1982 and Jan. 25, 1983). This gave the Secretary an additional basisto conclude that he was justified in conducting the inspection on thebasis of the warrant.[[14]] In Wollaston Alloys, Inc. v. Donovan, 695 F.2d at 7, the courtintimated that there might be merit in the argument, but that decisionwas handed down several days after the inspection of Synkote’s workplace.[[15]] This is what the law is, not necessarily what I believe it shouldbe. I have serious reservations whether the Commission, as an executivebranch agency, may constitutionally review the probable causedetermination of an Article III judicial officer. The holding of thecourts that the Commission is merely deciding whether to admit orexclude evidence in its own proceeding seems to me to be a legalfiction. No matter how couched, the net result is that the ReviewCommission is grading the papers of the United States Magistrate.Nevertheless, the courts have made it very plain that once an inspectiontakes place the employer may not raise his constitutional warrantchallenges in the district court, and that the Commission shouldinitially determine these constitutional questions. For that reason, andout of fairness to the employer who has no other forum to make anyfactual record needed for his constitutional claims. I believe we mustadhere to the Commission’s earlier holding in Sarasota Concrete and ruleon these constitutional warrant challenges.[[16]]Chairman Buckley would suppress evidence obtained pursuant to aninvalid warrant only if the Secretary made a false or misleadingstatement in the warrant application, or if the Secretary’s inspectorsexceeded the scope of the inspection authorized by the warrant. Thisview, however, simply cannot be reconciled with the holding in SarasotaConcrete. In Sarasota Concrete there was no false or misleadingstatement in the warrant application. In that case the Secretaryforthrightly applied for a broad warrant to inspect Sarasota’s entireworkplace on the basis of a complaint that was very limited in scope.The magistrate granted the broad warrant, and the Secretary’s inspectorsdid not exceed the scope of the inspection authorized by the warrant.Both the Commission and the Eleventh Circuit agreed that the evidenceshould be suppressed because the warrant was overbroad in scope –precisely the situation here.I also note that Chairman Buckley is inconsistent on his rulings on thetwo warrants before us. On the one hand he declines to address Synkote’sobjections to the scope of the warrant because he believes theCommission may not review the actions of the magistrate who issued thatwarrant. Yet he joins with Commissioner Wall in upholding the warrantissued to KDK on the grounds that it was properly limited in scope tothe probable cause for its issuance. Thus, he does effectively rule onthe constitutional questions in KDK–but does not in Synkote. Thisselective application or disregard of Sarasota Concrete is not fair tothe parties.[[17]]The Act itself generally differentiates matters pertaining tooccupational safety from those relating to occupational health. Thus,section 2(b)(6) of the Act, 29 U.S.C. ? 651(b)(6), states that the Act’sobjectives are to be accomplished by \”exploring ways to discover latentdiseases, establishing causal connections between diseases and healthproblems, in recognition of the fact that occupational health standardspresent problems often different from those involved in occupationalsafety.\” (emphasis added.) Other sections of the Act apply only tomatters to health and not safety. Section 6(b)(5), 29 U.S.C. ?655(b)(5), prescribes specific requirements for the promulgation ofstandards dealing with \”toxic materials or harmful physical agents,\”with the objective of protecting against \”material impairment of healthor functional capacity.\” Section 6(b)(7) requires that where appropriatea standard \”shall prescribe the type and frequency of medicalexaminations or other tests which shall be made available . . . to mosteffectively determine whether the health of such employees is adverselyaffected.\” Section 20, 29 U.S.C. ? 669, authorizes research todetermine, among other things, levels of exposure to toxic materials andharmful physical agents and substances \”at which no employee will sufferimpaired health or functional capacities or diminished life expectancyas a result of his work experience,\” as well as \”medical examinationsand tests as may be necessary for determining the incidence ofoccupational illnesses and the susceptibility of employees to suchillnesses.\”[[18]] For additional discussion see United States Department of Laborv. Kast Metals, 744 F.2d 1145, 1147-48 n.1 (5th Cir.1984) (health) and Phoenix Forging, Co., 85 OSAHRC ____, 12 BNA OSHC1317, 1318 & nn. 5-6, 1985 CCH OSHD p. 35,210 & nn.5-6 (No. 82-398,1985) (safety).[[19]] The language appearing in Appendix A of CPL 2.25C is virtuallyidentical.[[20]] In response to Synkote’s request for admissions, the Secretarystated that he relied on the health inspection provisions of CPL 2.25Band that \”this was a health inspection.\” The Secretary specificallyadmitted that he sought authority to conduct a programmed safetyinspection of KDK’s worksite \”rather than a programmed healthinspection,\” and that he had no probable cause basis for any type ofinspection \”other than a programmed safety inspection.\”It is true that the Secretary’s instructions to his inspectors do allowconcurrent safety and health inspections when \”resources are available\”and \”it is likely\” that both safety and health hazards may exist to asignificant degree. However, that is very different from whether thescope of the warrant relates to the probable cause shown for itsissuance. If the Secretary desires a warrant to conduct both a safetyand a health inspection and it is indeed \”likely\” that both safety andhealth hazards \”exist to a significant degree,\” he need only make such ashowing to the magistrate. The fact that the Secretary has authorizedhis inspectors to conduct concurrent safety and health inspections saysnothing about the probable cause shown or the scope of the warrant issued.[[21]] In Sarasota Concrete, the Eleventh Circuit affirmed theCommission’s determination that a specific complaint relating to alocalized condition does not constitute probable cause for a warrantauthorizing a full-scope inspection of the entire worksite.In two cases before the Ninth Circuit that court ruled that a full-scopeinspection could properly be conducted under a warrant predicated on anemployee complaint. Both of these holdings, however, were based on theproposition that the conditions asserted in the complaints weresufficiently pervasive to justify an inspection of the entire worksite.Thus, in In re Establishment Inspection of J.R. Simplot Co., 640 F.2d1134 (9th Cir. 1981), the employer conceded that the complaint wassufficient to establish probable cause for a complete inspection of itsfeed lot. Although the feed lot in actuality comprised a distinct andseparate portion of the employer’s facility, the information madeavailable to the district court Judge who issued the warrant allowed himto reasonably conclude that the facility consisted of only one singleundivided work area. In Hern Iron Works, Inc. v. Donovan, 670 F.2d 838(9th Cir. 1982), the court concluded that the magistrate couldreasonably infer that inspection of the entire establishment would benecessary to detect the hazard of inadequate ventilation alleged in thecomplaint. Similarly, the Tenth Circuit recently upheld a warrantauthorizing a full-scope inspection based on an employee complaint onthe ground that the complaint allegation of discrete hazards at separatelocations together with the observation of a number of hazardousconditions in plain view established that hazards permeated theworkplace. Robert K. Bell Enterprises, Inc., v. OSHRC, No. 85-1547 (10thCir. Feb. 19, 1986). See also Burkart Randall Div. of Textron, Inc. v.Marshall, 625 F.2d 1313 (7th Cir 1980) (hazards named in complaints aresufficiently diffuse to support magistrate’s determination thatinspection of the entire workplace would be reasonable) (concurringopinion of Judge Fairchild). Thus, the decisions upholding full-scopewarrants based on employee complaints of specific hazardous conditionsare consistent with the basic principle that the scope of the warrantmust be reasonably related to the probable cause established for itsissuance.Under Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), warrants based ona general administrative plan, such as those involved here, do not haveto be restricted to a specific physical area of the worksite. See, e.g.,In re Establishment Inspection of Gilbert & Bennett Mfg. Co., 589 F.2d1335, 1343 (7th Cir.), denied, 444 U.S. 884 (1979) The issue here,however, is not the physical area of the worksite to be inspected, butrather the type of violation for which an inspection may be authorized.No court has addressed this particular issue.[[22]] Warrants such as those involved here, which authorize full-scope\”wall to wall\” inspections, necessarily impose a substantial burden onemployers. Sarasota Concrete, supra, 693 F.2d at 1068 & n.9; Cerro MetalProducts, Division of Marmon Group, Inc. v. Marshall, 620 F.2d 964, 974(3d Cir. 1980). As the court stated in the latter case, \”a typical OSHAinspection is more than an unobtrusive scrutiny. Inspections of entireplants . . . necessarily create inconvenience to the employer and acertain amount of lost time for employees who escort the inspector orare otherwise disrupted in their work. Even if no violations were foundand no citations issued, an employer would not regard such an inspectionas benign.\”[[23]] Industrial Hygiene Technical Manual, Chapter II.[[24]] 29 C.F.R. ? 1903.7(b) in pertinent part provides:Compliance Safety and Health Officers shall have authority to takeenvironmental samples and to . . . employ other reasonable investigativetechniques . . . . As used herein, the term \”employ other reasonableinvestigative techniques\” includes . . . the attachment of personalsampling equipment such as dosimeters, pumps, badges and other similardevices to employees in order to monitor their exposures.\”[[25]]While I agree with the majority that the phrase \”occupationalsafety and health standards\” in the scope provision of the warrant doesnot necessarily imply a health inspection, I emphasize, as discussedmore fully infra, that the replication of statutory language and similar\”boilerplate\” does not satisfy the specificity requirements of thefourth amendment. See notes 27 & 29 infra.[[26]] In INS v. Lopez-Mendoza, 104 S.Ct. 3479 (1984), the Court heldthat it would not apply the exclusionary rule to an Immigration andNaturalization Service civil deportation proceeding. While adhering tothe balancing test set forth in United States v. Janis, 428 U.S. 433(1976), the Court ruled that the relative costs and benefits did notjustify excluding evidence obtained from the arrest of an alien inviolation of the fourth amendment. The Court reasoned that the deterrentvalue of excluding such evidence in a deportation proceeding wassubstantially reduced by several factors, including the availability ofevidence gathered independently of or sufficiently attenuated from theoriginal arrest, the particular field conditions under which INS arrestsnormally occur, and the specific procedures established by the INS tocontrol its field personnel in making arrests and to investigate andpunish violations of the fourth amendment by its officers. These factorsare not present in OSHA proceedings. Furthermore, Lopez-Mendoza involveswarrantless arrests as opposed to the acquisition of evidence through awarrant. The decision whether or not to arrest a suspect without awarrant must be made quickly as Conditions occur, without theopportunity for reflection or study. As the court stated, arrests ofillegal aliens occur under \”chaotic\” conditions. 104 S. Ct. at 3487. Theopposite is true with respect to OSHA warrants for programmedinspections. The Secretary’s field personnel have ample opportunity todevelop their showing of probable cause and to prepare warrants andapplications that are properly limited in scope. In my opinion,Lopez-Mendoza is clearly distinguishable.[[27]] The general proscription in the Act that inspections be\”reasonable\” is not sufficient to supplant the fourth amendment’swarrant requirement because it affords no guidance to inspectors in theexercise of their authority to conduct an inspection. See Donovan v.Dewey, 452 U.S. 594, 601 (1981); Marshall v. Wollaston Alloys, Inc., 479F. Supp. 1102, 1104 (D. Mass. 1979). As the Commission held in WesternWaterproofing Co., 76 OSAHRC 64\/A2, 4 BNA OSHC 1301, 1976-77 CCH OSHD ?20,807 (No. 1087, 1976), rev’d on other grounds, 560 F.2d 947 (8th Cir.1977), section 8(a) of the Act is co-extensive with the fourth amendmentsuch that an inspection conducted in violation of the fourth amendmentnecessarily establishes a violation of section 8(a) as well.[[28]] E.g., Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d1313 (7th Cir. 1980) (complaints received 5 and 6 months prior towarrant application are not stale where the alleged violations are notof a type likely to disappear through mere passage of time); PeltonCasteel, Inc. v. Marshall, 588 F.2d 1182 (7th Cir. 1978) (Secretary mayre-inspect to determine whether prior violations have been abated whenit has reasonable grounds to believe that the violations may becontinuing); In re Establishment Inspection of Seaward InternationalInc., 510 F. Supp. 314 (W.D. Va. 1980), aff’d without published opinion,644 F.2d 880 (4th Cir. 1981) (determination that substances which werethe subject of an employee complaint were used as part of regularproduction processes allows inference that the violation was ofcontinuing nature); In re Establishment Inspection of BP Oil, Inc., 509F. Supp. 802 (E.D. Pa.), aff’d, 10 BNA OSHC 1304 (3d Cir. 1981) (notofficially reported) (rejecting argument that probable cause requiresproof that continuing violations were in existence at the precise timethe warrant is issued); In re Inspection of Central Mine Equip. Co., 7BNA OSHC 1185 (E.D. Mo. 1979), 1979 CCH OSHD ? 23,309 (magistrate’sorder), rev’d on other grounds, 608 F.2d 719 (8th Cir. 1979) (age ofinformation in a complaint but one factor to be considered indetermining probable cause; other considerations, which are notapplicable in the case of criminal warrants, include the nature of thealleged violation and the nature of the facility in question). Inaddition, the Supreme Court observed in Barlow’s supra, 436 U.S. at 318,that the effectiveness of the Act had not been adversely affected by thetime lapse between an employer’s warrant request and the Secretary’sreturn with the necessary process to compel entry. The Secretary has notreferred us to any circumstances demonstrating that there is a greaterlikelihood of an employer altering or disguising conditions prior to areinspection than there is of an employer concealing conditions beforethe Secretary returns with a warrant to conduct an initial inspection.[[29]] Even so, the court criticized the general language of thewarrant, characterizing it as \”standard boilerplate in many OSHAinspection warrants\” which \”causes us concern.\” 695 F.2d at 8. At leasttwo other courts of appeals and one district court have also expresseddisapproval of of the consistent use of \”unrelieved\” boilerplate in OSHAwarrants. E.g., Wollaston Alloys, supra; Donovan v. Federal Clearing DieCasting Co., 655 F.2d 793, 797 (7th Cir. 1981); Marshall v. MilwaukeeBoiler Manufacturing Co., 626 F.2d 1339 (7th Cir. 1980); Pool OffshoreCo., supra. See Donovan v. Dewey, 452 U.S. 594, 601 (1981).[[30]] I do not share the Secretary’s concerns, expressed before theJudges below, regarding the practicality of restrictions on the scope ofan inspection. Although the Secretary’s own directives, supra, permitinspectors to conduct a joint health and safety inspection, theynevertheless distinguish health and safety matters insofar as theallocation of inspection resources is concerned. The fact is that theSecretary’s enforcement personnel do routinely conduct inspectionslimited either to health or safety matters. E.g., Blocksom & Co. v.Marshall, 582 F.2d 1122 (7th Cir. 1978) (separate health and safetyinspections conducted at different times by different personnel);Marshall v. North American Car Co., 476 F. Supp. 698 (M.D. Pa. 1979),aff’d, 626 F.2d 320 (3d Cir. 1980) (same); In re EstablishmentInspection of Marsan Co., 7 BNA OSHC 1557, 1979 CCH OSHD ? 23,856 (N.D.Ind. 1979) (not officially reported) (industrial hygiene referral madeby safety inspector; industrial hygienist then applied for warrant toconduct a health inspection).[[31]]See Chapter II, Compliance Programming.[[32]]The majority opinion suggests that the Secretary was justified inbelieving the warrant in Synkote was valid because it had been upheld bythe district court after an adversary hearing. The majority fails tomention, however, that the district court did not consider the questionbefore us–i.e. the scope of the warrant.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ([email protected]), telephone (202)606-5398), fax(202-606-5050), or TTY (202-606-5386).”