“Docket No. 83-0002_83-0152 SECRETARY OF LABOR,Complainant,v.SYNKOTE PAINT COMPANY, Respondent,SECRETARY OF LABOR,Complainant,v.KDK UPSET FORGING COMPANY,Respondent.OSHRC Docket No. 83-0002 OSHRC Docket No. 83-0152DECISIONBEFORE: Buckley, Chairman; Rader and Wall, Commissioners. BY THE COMMISSION:These consolidated cases[[1]] are before the Occupational Safety and Health ReviewCommission under 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration (\”OSHA\”). It was established to resolve disputesarising out of enforcement actions brought by \”the Secretary of Labor under the Actand has no regulatory function. See section 10(c) of the Act, 29 U.S.C. ? 659(c).Each Respondent challenges the validity of a warrant authorizing an inspection of itsworksite. Both Respondents, who are represented by the same counsel, filed motions forsummary judgment and for suppression of evidence on essentially identical grounds. BothAdministrative Law Judge David 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 both enteredinto an \”agreed statement of facts\” in which each stipulated that it hadviolated the Act as alleged but also \”incorporate[d] by reference\” its\”prior controversy over the validity of the underlying warrant.\” In accordancewith the stipulations, each judge then issued a dispositive order affirming theSecretary’s citation or citations.[[2]] For the reasons stated below, we affirm thejudges’ decisions.I. On September 14, 1982, the Secretary applied for a warrant to inspect Synkote’sworksite based on the provisions of OSHA Instruction CPL 2.258, entitled \”SchedulingSystem for Programmed Inspections,\”[[3]] pertaining to the inspection of employers inindustries having \”high potential 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 annual projections, toperform a programmed inspection in the general industry (health) category. As set forthmore fully in Appendix A of the Instruction, scheduling for general industry (health) isbased on OSHA’s Health Inspection Plan (HIP)….The HIP combines available data onselected substances previously reported as being found in each industry by [the NationalInstitute for Occupational Safety and Health], the number of employees potentially exposedto these substances, and the severity of potential adverse health effects….This employer is believed to be engaged in manufacturing of paints, lacquers, andchemical coatings, SIC [Standard Industrial Classification] number 2851, which is includedin the current Industry Priority List for the State of New Jersey.The establishment is believed to be involved in the manufacturing process of paint,lacquers and chemical coatings, dumping, mixing, filling and labeling. Health hazardsassociated with associated with these 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’s administrativeplan for scheduling health inspections, the warrant application itself requested a warrantto conduct an inspection of employer’s entire establishment:4. The inspection and investigation will extend to the establishment or other areawhere work is performed by employees of the employer…and to all pertinent conditions,structures, machines, apparatus, devices, equipment, materials, and all other thingstherein…bearing on whether this employer is furnishing to its employees employment and aplace of employment which are free from recognized hazards that are causing or are likelyto cause death or serious physical harm to its employees, and whether this employer iscomplying with the Occupational Safety and Health Standards promulgated under the Act andthe rules, regulations and orders issued pursuant to the Act.A magistrate of the United States District Court for the District of New Jerseyconcluded that the Secretary had shown \”an administrative plan containing specificneutral criteria\” for an inspection under the Act, and on September 28, 1982 issued awarrant authorizing an inspection of the scope requested in the Secretary’s application.The Secretary’s application for a warrant to inspect KDK stated that it was basedon the provisions of OSHA Instruction CPL 2.25C[[4]] regarding the selection ofestablishments for safety inspections. According to the application,[S]cheduling of inspections within the general industry safety category is based on aninspection register prepared by each OSHA Area Office and listing all establishmentsselected for inspection on an annual basis within the general industry safety category ofemployment. The inspection register is compiled from a statewide industry ranking report,entitled the \”High Rate Industry List\” and supplied by the National OSHA office,which lists, by . . . [SIC] numbers, all industries in the state (except construction andmost maritime) which have 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 the manufacture of iron andsteel forging, SIC number 3642, which is included in the current High Rate Industry Listfor the State of Illinois 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 Court for theNorthern District of Illinois, stated that application had been made to conduct a safetyinspection:Sworn application having been made, reasonable legislative and administrativestandards having been prescribed, and probable cause shown by William H. Tschappat of theOccupational Safety and Health Administration, United States Department of Labor, for aprogrammed general industry safety inspection and investigation of the workplace . . . .The warrant went on to order the Secretary to enter the above described premises during regular working hours or at otherreasonable times, and to inspect and investigate [in a reasonable manner and to areasonable extent including but not limited to authority to take environmental samples andto take or obtain photographs related to the purpose of the inspection and questioningprivately any owner, operator, agent, employer or employee of the establishment], theworkplace or environment where work is performed by employees of the employer and allpertinent conditions, structures, machines, apparatus, devices, equipment, materials andall other therein (including a review of records required by the Act and other recordswhich are directly related to the purpose of the inspection – such records do not includeemployee medical records as defined by 29 CFR 1910.20(c)(6)) bearing on whether thisemployer is furnishing to its employees employment and a place of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical injuries to its employees, and whether this employer is complying with theoccupational safety 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 contended that thewarrants were invalid because they exceeded the probable cause basis for their issuance.Synkote contended that the warrant based on the health inspection provisions of theSecretary’s programmed inspection plan was improper insofar as it authorized an inspectionfor safety related violations of 29 U.S.C. ? 654(a)(1) and for violations of occupationalsafety rather than health standards under ? 654(a)(2). KDK argued that the warrant toinspect its workplace was predicated on a programmed safety inspection plan and thereforeimproperly allowed an inspection of health-related matters as well. On similar groundsboth employers also challenged as overlord the warrants’ authority to inspect forviolations of all \”rules, regulations and orders.\”In opposing the motions for summary judgment and for suppression of evidence onthis ground, the Secretary argued that an inspection cannot be defined as exclusively ahealth or exclusively a safety inspection. Judge Oringer agreed, characterizing anydistinction between safety and health inspections as \”artificial\” and \”notpredicated on a legal foundation.\” The judge, however, further stated that evenassuming safety and health inspections are sufficiently distinguishable to cause thewarrant in Synkote to be overlord insofar as it authorized a safety inspection, thatportion of the warrant could be severed and the remainder of the warrant preserved underthe principle of \”redaction\” as applied in United States v. Christine, 687 F.2d749 (3d Cir. 1982). Stating that the Secretary had cited Synkote only for \”healthviolations,\” Judge Oringer concluded that in the absence of any violations of asafety nature, there was no evidence arising from the challenged portion of the warrant tobe suppressed. Judge Bobrick, in KDK, reasoned that he could not consider whether thewarrant was supported by probable cause because he lacked authority to review themagistrate’s determination that probable cause existed. He further found no evidence thatthe inspection under the warrant was broader than the terms of the warrant application.On review Synkote and KDK contend that the judges erred in disregarding cleardifferences between an inspection for safety-related violations and an inspectionpertaining to health matters. Both argue that probable cause to conduct an inspection forone type of violation does not constitute probable cause to inspect for the other type.Synkote contends as well that Judge Oringer erred in applying the principle of\”redaction.\” In Synkote’s view, allowing a partially invalid warrant to besevered and upheld in part subverts its fourth amendment right to be protected fromunreasonable inspections and reduces the deterrent value of the exclusionary rule. Synkotealso contends that redaction is not appropriate in civil proceedings such as thoseconducted before the Commission.[[6]]Assuming the warrants are overbroad as the employers contend, the Secretaryemphasizes that neither employer was cited for a violation of section 5(a) of the Actbeyond each warrant’s probable cause basis. Contending that the function of the Commissionin review of challenges to warrants is not to examine the validity of the warrant issuedby the magistrate but rather to decide whether to admit the evidence obtained through theexecution of the warrant, the Secretary argues that there is no evidence arising from anyinvalid portion of either warrant to be suppressed in these proceedings. Alternatively,the Secretary contends that under the redaction rule suppression of any evidence obtainedpursuant to overbroad portions of the warrants does not require suppression of evidencefor which probable cause did exist.The Secretary finally argues that the exclusionary rule should not be applied inCommission proceedings even if evidence has been improperly obtained. If, however, therule is appropriate, the Secretary urges the Commission to recognize a good faithexception, citing United States v. Leon, 104 S. Ct. 3405 (1984). Synkote and KDK arguethat for a number of reasons the Commission should adhere to its prior decision inSarasota Concrete Co., 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ? 25,360 (No.78-5264, 1981), aff’d, 693 F.2d 1061 (11th Cir. 1982), in which the Commission ruled thatthe exclusionary rule applies and that the issue before it is not the Secretary’s goodfaith but whether the Secretary acted properly under the fourth amendment in obtaining theevidence in question. In any event, Synkote and KDK contend that the Secretary did not actin good faith in the circumstances presented here.II.In Marshall v. Barlow’s, Inc., 436 U.S. 307, 321 (1978), the Court stated thatprobable cause for an inspection warrant could be based on \”a general administrativeplan for the enforcement of the Act derived from neutral sources.\” Since Barlow’s,the Secretary has formulated a number of administrative plans for scheduling programmedinspections of employers, including the enforcement directives that are the basis for thepresent warrants. In prescribing these selection procedures, the Secretary distinguishedbetween matters pertaining to occupational safety and those pertaining to occupationalhealth as a basis for inspection. Health and safety are addressed in separate and distinctsections of each directive, and substantially different methodologies are employed in theselection process.[[7]]KDK and Synkote assert that the warrants in these cases were overbroad because theSecretary failed to specifically tailor the scope of the warrants he sought to theprobable cause basis for their issuance. The employers contend that the Secretaryimproperly sought warrants to conduct full-scope inspections encompassing both safety andhealth, based on probably cause to conduct only a safety inspection in KDK and only ahealth inspection in Synkote.[[8]]KDK’s argument fails at the outset, for the warrant in that case can most reasonablybe read to authorize only a safety inspection. The warrant specifically stated that theSecretary had shown probable cause \”for a programmed general industry safetyinspection….\” (Emphasis added.) If it is true, as KDK argues, that the scope of aninspection permitted by a warrant must reflect the probable cause basis underlying itsissuance, then this language provided clear notice that the warrant does not suggest thatit authorizes a full-scope health inspection as well as full-scope safety inspection. Itis highly significant that the warrant did not authorize the Secretary to conduct personalsampling, a common procedure in health inspections.[[9]] Donovan v. Wollaston Alloys,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 it did not permit a review of medical records. Thewarrant did authorize the Secretary to \”take environmental samples,\” but suchsamples can relate to safety hazards as well as health hazards,[[10]] so this provisiondoes not imply that the warrant authorizes more than a full- scope safety inspection.The only explicit reference to \”health\” in the warrant is the authorizationto determine \”whether this employer is complying with the occupational safety andhealth standards promulgated under the Act . . . .\” The Act, however, uses the phrase\”occupational safety and health standard\” as a term of art,[[11]] and logically,its inclusion in the warrant was simply a recitation of the statutory phrase rather thansubstantive authorization to conduct a health inspection as well as safety inspection. Inany event, the specific reference to a safety inspection in the first paragraph of thewarrant defines the objectives and limits of the inspection. See Donovan v. WollastonAlloys, 695 F.2d at 7 (statement in warrant that inspection will cover employer’scompliance with \”occupational safety and health standards\” does not expand scopeof warrant beyond safety inspection when other material in warrant stated that inspectionwas so limited.)Nor are we confronted here with an inspection that exceeded the scope of the warrant.KDK has neither alleged nor argued that the actual inspection went beyond safety. Also,there is no evidence that this was the case.Synkote presents a different situation. The warrant in that case authorized abroad-scope inspection with no language indicating it was limited to a health inspection.Nevertheless, for the reasons that follow, we conclude that suppression of evidence wouldnot be appropriate.In Chairman Buckley’s view, the Commission, as an agency within the executive branch,has no authority to review the actions of a judicial officer of a court created underArticle III of the Constitution. E.g., Phoenix Forging Co., 85 OSAHRC ____, 12 BNA OSHC1317, 1319, 1985 CCH OSHD ? 27,256 (No. 82-398,1985) (view of Chairman Buckley) and casescited therein. To entertain the argument by Synkote that provisions of the warrant werenot supported by probable cause and were overbroad would require the Commission to reviewthe magistrate’s judgments that warrants of a particular scope should issue. ChairmanBuckley believes that the Commission may not consider these arguments.The Commission may, however, consider a motion to suppress evidence based on othergrounds. Under its supervisory authority over the Act’s enforcement, the Commission mayimpose appropriate sanctions on the Secretary to deter misconduct by OSHA employees.Phoenix Forging, 12 BNA OSHC at 1320, 1985 CCH OSHD at p. 35,211-12. Evidence unlawfullygathered by OSHA may be suppressed where such a remedy can reasonably be expected to detersimilar misconduct by OSHA in the future. This may occur where OSHA’s warrant applicationcontains false or misleading statements to induce the magistrate to find probable cause,or where OSHA gathers evidence during an inspection unlawfully by, for example, exceedingthe scope of the inspection stated in the warrant. See Brooks Woolen Co., 85 OSAHRC _____,12 BNA OSHC 1233, 1234, 1236-37, 1985 CCH OSHD ? 27,233, pp. 35,148, 35,151-52 (Nos.79-45 and 79-128, 1985) (view of 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 notcontend that the inspection exceeded the scope permitted by the warrant. Nor is there anyclaim that the warrant applications contained any false information or was designed tomislead the magistrate in any way.[[12]] Moreover, even if the application exceeded thescope of OSHA Instruction 2.25B, it cannot be said that the inspector’s act in seeking abroad-scope warrant constituted misconduct of such a nature as to justify the extremesanction of suppression of evidence. The error was not in presenting an application thatmay have been broader than regulations authorized. The error was in the magistrate’sfailure to limit the warrant. That error cannot be reviewed by the Commission.[[13]]Chairman Buckley notes, moreover, that even if there were some reason to considersuppression, there is no evidence in this case to suppress, as the Secretary has pointedout.Commissioner Wall notes that the Commission has held that it has the authority toconsider challenges to inspection warrants obtained by the Secretary. Sarasota ConcreteCo., 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ? 25,360 (No. 78-5264, 1981), aff’d,693 F.2d 1061 (11th Cir. 1982). The Eleventh Circuit expressly affirmed the holding inSarasota that the Commission can consider such challenges, 693 F.2d at 1066-67, and anumber of other circuits have similarly held that the Commission is a proper forum for theconsideration of fourth amendment issues. Indeed, the courts generally hold that once thestatutory review process before the Commission has been commenced, any objections to thevalidity of a warrant must be raised before the Commission. Robert K. Bell Enterprises,Inc. v. Donovan, 710 F.2d 673 (10th Cir. 1983), cert. denied, 464 U.S. 1041 (1984); In reEstablishment Inspection of Metal Bank of America, Inc., 700 F.2d 910 (3d Cir. 1983); Inre Inspection of Central Mine Equipment Co., 608 F.2d 719 (8th Cir. 1979); In re WorksiteInspection of Quality Products, Inc., 592 F.2d 611 (1st Cir. 1979). The courts recognize,as the Secretary correctly notes, that the Commission as an administrative agency in theexecutive branch may not directly review the decision of a United States magistrate ordistrict court judge to issue a warrant. Rather, the Commission decides whether to use theevidence arising from an inspection conducted pursuant to the warrant. In so doing, theCommission may exercise its inherent authority to determine what evidence will beadmissible in its proceedings and in particular to develop criteria regarding theadmission or exclusion of evidence obtained under an invalid warrant. Smith Steel CastingCo. v. Donovan, 725 F.2d 1032, 1035-1036 (5th Cir. 1984); Sarasota Concrete, 693 F.2d at1066; Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1136- 1137 (3d Cir. 1979).In Sarasota Concrete, the Commission held that evidence gathered under an invalidwarrant would be suppressed even if the Secretary acted in good faith in conducting theinspection. 9 BNA OSHC at 1614, 1981 CCH OSHD at p. 31,533. Since that time, the SupremeCourt has held, in a criminal case, that evidence should not be suppressed if obtained inobjectively reasonable reliance on a subsequently invalidated search warrant. UnitedStates v. Leon, 104 S.Ct. 3405, 3421 (1984). The Court reasoned that the purpose of theexclusionary rule is to deter official misconduct in the conduct of inspections and that,when an officer conducts an inspection in objectively reasonable reliance on a warrant,there is no misconduct to deter even if the warrant is subsequently held invalid.Commissioner Wall believes that this reasoning is equally applicable to cases beforethe Commission. The ultimate aim of the exclusionary rule–to deter officialmisconduct–is the same in both OSHA and criminal cases. If anything, warrants should bereviewed less critically in civil cases. The Supreme Court noted in Barlow’s:\”Probable cause in the criminal law sense is not required.\” 436 U.S. at 319. Ina recent OSHA case, the court said:The Supreme Court decided in Camara and Barlow’s that the requirements for theissuance of administrative search warrants are more lenient than for criminal searchwarrants, in that they require a lesser showing of probable cause. We have found noauthority which suggests that more restrictive requirements obtain for the issuance ofadministrative search warrants than for criminal search warrants.Donovan v. Enterprise Foundry, 751 F.2d at 36. Accordingly, Commissioner Wallconcludes that the part of Sarasota Concrete declining to recognize a good faith exceptionto the exclusionary rule is no longer viable, and he will not suppress evidence gatheredby OSHA inspectors in objectively reasonable reliance on a search warrant.Commissioner Wall concludes that the Secretary acted in objectively reasonablereliance on the warrant in conducting its inspection of Synkote’s workplace. Before theinspection was conducted, Synkote moved to quash the warrant and a hearing was held infederal district court. The court rejected Synkote’s argument that the warrant applicationdid not establish probable cause for an inspection and upheld the warrant. Thus, at thetime the Secretary conducted the inspection, Synkote had a full opportunity to argue thevalidity of the argument in an adversary proceeding, and its arguments had been rejected.The Secretary was therefore 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 warrant without knowingbeforehand what items are to be seized, we refuse to rule that an officer is required todisbelieve a judge who has just advised him, by word and by action, that the warrant hepossesses authorizes him to conduct the search he has requested.\u00a0 Massachusetts v.Sheppard, 104 S.Ct. 3424, 3429, (1984) (footnote omitted). See also Donovan v. FederalClearing Die Casting Co., 695 F.2d 1020, 1024-25 (7th Cir. 1982) (despite invalidity ofwarrant, evidence will not be suppressed because secretary acted in reasonable good faithbelief that warrant was valid).Moreover, the particular overbreadth argument made by Synkote–that the warrant wasoverbroad in authorizing a full-scope inspection based on probable cause for only a healthinspection–is not so clearly meritorious that the Secretary should have recognized thatthe warrant was overbroad. Although the Secretary’s guidelines established differentcriteria for safety and health inspections, they also indicated that \”[a] programmedinspection should generally be a comprehensive inspection of the establishment with theexception of low hazard areas . . . . OSHA Instruction CPL 2.25C, Sec. I. Even assumingthat the Secretary may not apply for both a health and safety inspection predicated on ashowing of probable cause based on one part of his administrative plan, a point we do notreach here, no Commission or court decision had, at the time of the inspection, indicatedthat this was impermissible.[[14]] Indeed, the Commission had apparently endorsed thepractice, saying, albeit in dictum, \”[a] plant-wide inspection is usually permissiblewhen probable cause is established under a general administrative plan.\” SarasotaConcrete, 9 BNA OSHC at 1617, 1981 CCH OSHD at p. 31,536. Thus, the state of the law atthe time of the inspection did not put the Secretary on notice that the warrant might beoverbroad.Commissioner Wall also notes that Synkote does not claim that the inspection of itsworksite was broader than a health inspection and KDK does not claim that its inspectionwent beyond a safety inspection. Except for the poster and record keeping items inSynkote, the only citations were for health violations in Synkote and for a safetyviolation in KDK. Therefore, even assuming the warrants were overbroad, the inspectionsthat were actually conducted were within permissible limits, and the evidence supportingthe alleged violations was related to the probable cause basis for the warrants. Insimilar circumstances, the courts of appeals for the circuits in which KDk’s and Synkote’sworkplaces are located have held that warrants should be redacted and that only evidencegathered under the overbroad portions of the warrants should 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 (3d Cir. 1982) (redaction of criminal warrant consistent withFourth Amendment). Commissioner Wall believes that the Commission is bound to follow thedecisions of the courts of appeals in cases within the jurisdiction of those courts and,on this basis, would redact the warrants in these cases by striking out the provisionspermitting the Secretary to conduct a health inspection in KDK and a safety inspection inSynkote. With the warrants thus modified, all of the evidence relevant to the allegedviolations was gathered under the valid portions of the warrants, and there is no basis tosuppress that evidence.III.KDK and Synkote argue that the warrants were invalid for a number of other reasons.We find that none of these arguments provides any basis to suppress evidence in thesecase. The employers contend that provisions in the warrants permitting inspection ofrecords are invalid because the Act does not provide for inspection of records pursuant toa warrant. The Commission has previously rejected this argument with respect to recordsemployers are required to maintain under the Act, and we adhere to that precedent. ThermalReduction Corp.,85 OSAHRC ____, 12 BNA OSHC 1264, 1985 CCH OSHD ? 27,248 (No. 81-2135,1985). Thus, the provisions of the warrants authorizing inspection of records required bythe Act were valid.The employers further argue that the warrants invalidity authorized the inspection ofrecords beyond those required to be kept under the Act. Chairman Buckley would notconsider the argument because it questions the magistrates’ decisions to issue thewarrants. Phoenix Forging, 12 BNA OSHC at 1319, 1985 CCH OSHD at p. 35,211. CommissionerWall does not believe it is necessary to decide the issue. The employers do not claim thatthe Secretary actually sought to inspect any records beyond those required to be keptunder the Act. Therefore, even if the records inspection provisions were overbroad, theinspections that were actually conducted were within permissible limits. Again applyingthe doctrine of redaction, as discussed above, there is no invalidity obtained evidence tosuppress. Donovan v. Wollaston Alloys, 695 F.2d at 8.Chairman Buckley and Commissioner Wall join in rejecting KDK’s and Synkote’sarguments that the provisions of the warrants authorizing employee interviews are invalidand that the warrants are invalid because the Secretary’s enforcement directives were notpublished in the Federal 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 Secretary DATE: AUG 27 1986RADER, Commissioner, concurring in part and dissenting in part:As the majority opinion points out, the Secretary has two administrative inspectionplans for scheduling OSHA inspections. He has one plan for scheduling health inspectionsand another, different plan for scheduling safety inspections. Establishments are selectedfor inspections under the health plan based on the potential use of hazardous substances,such as carcinogens. Under the safety plan establishments are selected for inspectionsbased on their accident rate. The Secretary’s program directives, Field Operations Manualand Industrial Hygiene Technical Manual make it clear that health inspections and safetyinspections are very different. They are scheduled differently and the method ofinspection and effect on the workplace is different. The Secretary’s compliance personnelare well aware of the difference between a safety and a health inspection.Here, the Secretary applied for a warrant to inspect Synkote based on his plan forscheduling health inspections of employers in industries where employees may be exposed tohazardous substances. Conversely, the application for a warrant to inspect KDK waspredicated on the Secretary’s plan for conducting safety or physical hazard inspections inindustries having a certain injury rate. In both cases, however, the warrants requestedand issued were the same; they authorized in virtually identical language an inspection ofthe entirety of each employer’s establishment for both safety and health. Each warrantauthorized the inspection to extend to any relevant matter bearing on whether the employerwas furnishing a workplace free from recognized hazards and whether the employer was incompliance with safety and health standards, rules, regulations, and orders promulgatedunder the Act. The pivotal issue before us is whether these warrants are unconstitutionallyoverbroad because they were not tailored to the probable cause for their issuance.I join with Commissioner Wall in holding that the constitutional challenges to thescope of the warrants raised by Synkote and KDK are properly before the Commission. AsCommissioner Wall points out, a number of the United States Circuit Courts of Appeals haveheld that the Commission is a proper forum for the consideration of fourth amendmentissues, and that once the statutory Commission review process has been commenced, anyobjections to the validity of a warrant must be raised before the Commission. Smith SteelCasting Co. v. Donovan, 725 F.2d 1032, 1035-1036 (5th Cir. 1984); 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 Metal Bank of America,_Inc., 700 F.2d 910 (3dCir. 1983); Donovan v. Sarasota Concrete Co., 693 F.2d 1061 (11th Cir. 1982); Babcock& Wilcox Co. v. Marshall, 610 F.2d 1128, 1136-1137 (3d Cir. 1979); In re Inspection ofCentral Mine Equipment Co., 608 F.2d 719 (8th Cir. 1979); Bethlehem Steel Corp. v. OSHRC,607 F.2d 871 (3d Cir. 1979); In re Worksite Inspection of Quality Products, Inc., 592 F.21611 (1st Cir. 1979). In accordance with this authority the Commission in Sarasota ConcreteCo., 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1981 CCH OSHD [[P]] 25,360 (No. 78- 5264, 1981),held that an OSHA warrant was overbroad in scope and suppressed the evidence obtainedthereunder. On appeal the Eleventh Circuit expressly affirmed the Commission’s decision.693 F.2d at 1066-67. The question of the authority of the Commission to rule on theseconstitutional warrant questions is therefore settled.Chairman Buckley expresses the view that the Commission as an administrative agencyin the executive branch may not directly review the decision of the magistrate or court toissue a warrant. However, the courts have specifically ruled that the Commission shouldreview the magistrate’s determination of probable cause and \”make its own judgment asto the propriety of the warrant\” in connection with admitting or excluding evidencein our proceeding.[[15]] Sarasota Concrete, supra, 693 F.2d at 1066,.Babcock & Wilcox,supra, 610 F.2d at 1136. In Bethlehem 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 think there arecompelling reasons for insisting that fourth amendment claims for the suppression ofevidence in OSHA enforcement cases be tendered first to the Commission.\” 607 F.2d at876.Because the courts have so clearly directed that constitutional challenges to OSHAwarrants should be ruled on by the Commission, I agree with Commissioner Wall that theCommission must consider whether warrants of a particular scope should issue. However, Ido not agree that the Secretary’s conduct in obtaining and executing obviously overbroadwarrants should be excused.[[16]]Pursuant to Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), the Secretary has formulateda number of administrative plans for scheduling programmed OSHA inspections of employers.In prescribing these selection procedures the Secretary clearly distinguished betweensafety inspections and health inspection. Not only are health and safety addressed inseparate and distinct sections of each directive, but substantially differentmethodologies are employed in the selection process.[[17]] Thus, each of the directives atissue in these cases, CPL 2.25B and CPL 2.25C, contains a section (\”I\”) entitled\”Guidelines and Procedures,\” consisting of several subsections, includingsection I.1, \”Inspection Scheduling for General Industry (Safety),\” and sectionI.2, \”Inspection Scheduling for General Industry (Health).\” Each directive alsohas an Appendix A, \”Health Inspection Plan,\” and Appendix B, \”SummaryDescription of the Statewide Industry Ranking Reports and Establishment Lists,\” whichdescribe in greater detail the health and safety methodologies respectively.[[18]] As thewarrant applications themselves indicate, selection for inspection under the firstsubsection (safety) is based on the industry’s injury rate, whereas the determinationwhether to inspect for health matters is predicated on the degree of employee exposure todangerous substances. The Health Inspection Plan provision of each directive explain thebasis for the difference in methodologies:In scheduling General Industry (safety) inspections, industries (SIC’s) areselected primarily on the basis of the frequency of injuries in those industries. Incomparison with injury incidence rates, however, ILLNESS [sic] incidence rates often donot accurately reflect health hazards 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 health problems.CPL 2.258, Appendix A (footnote omitted).[[19]]In these cases, there is no dispute that the Secretary’s application for the warrantswas based on his determination that probable cause existed to inspect Synkote for matterspertaining to occupational health but not safety and KDK for the converse. The warrantapplications themselves so state, and the Secretary so conceded before the judgesbelow.[[20]] Nevertheless, the Secretary requested and was granted authority to inspecteach employer for matters relating to both occupational safety and occupational health.The Secretary’s application for an overbroad warrant in each case, and the magistrates’grant of such warrants, clearly is contrary to the well-settled principle that warrantsissued for inspection under the Act must be tailored to the probable cause basis for theirissuance. Donovan v. Wollaston Alloys Inc., 695 F.2d 1, 6-7 (1st Cir. 1982); SarasotaConcrete, supra, 693 F.2d at 1068-1070. Marshall v. Horn Seed Co., 647 F.2d 96, 100 (10thCir. 1981); Marshall v. North American Car Co., 626 F.2d 320, 324 (3d Cir. 1980); Marshallv. Central Mine Equipment Co., 608 F.2d 719, 720 n.1 (8th Cir. 1979).[[21]]It is well established that commercial enterprises have a legitimate privacy interestas to their worksites, facilities, or premises. G.M. Leasing Corp. v. United States, 429U.S. 338, 353 (1977); See v. City of Seattle, 387 U.S. 541, 544 (1967). See In re Carlson,580 F.2d 1365 (10th Cir. 1978) (fourth amendment applicable to search and seizure for taxcollection by IRS agents of property used in the conduct of a business). The fourthamendment’s protection against unreasonable searches, which implements this right,requires that entry be sufficiently limited in scope and purpose so as not to beunreasonably burdensome.Barlow’s, supra, 436 U.S. at 323 n.21; Camara v. Municipal Court, 387 U.S. 523, 532(1967). For an inspection to be reasonable under the fourth amendment, the warrantauthorizing an inspection must be properly tailored and limited to the probable causeshown for the warrant’s issuance. North American Car, supra, 626 F.2d at 324; BurkartRandall Division 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 overlybroad inspection violates the fourth amendment regardless whether any citations are issuedas a result of the inspection. 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 withoutprobable cause consummates fourth amendment injury).[[22]]In addition to limiting the scope of the inspection to the probable cause for itsissuance, the warrant also serves to apprise the employer of the permissible limits of theinspection beyond which the inspector may not go. Camara, supra, 387 U.S. at 532. Absentsuch information, there will be no effective restraints on the discretion of lawenforcement officers in the conduct of their search, nor will the employer have anyassurance that the public interest in the inspection of its premises outweighs theinvasion of privacy the inspection entails. Michigan v. Tyler, 436 U.S. 499, 507-508;Camara, supra, 387 U.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 probable cause toinspect Synkote was the Secretary’s health inspection plan, even the majority recognizesthat the warrant authorized both a health and a safety inspection. Similarly, the probablecause to inspect KDK was the Secretary’s safety inspection plan, yet the warrantauthorized both a safety and a health inspection. The Secretary’s Field Operations Manualand Industrial Hygiene Technical Manual make it quite clear that these are two differenttypes of inspections, and that the inspection procedures and effect on the employer’sworkplace differ materially. For instance, health inspections routinely include samplingof noise levels and air contaminants by attaching monitoring devices to employees in theworkplace[[23]]–a procedure much different than a safety inspection where the complianceofficer inspects for more mechanical type hazards such as unguarded machines. Theconclusion that these warrants are overbroad is buttressed by the First Circuit’sdetermination in Wollaston Alloys, supra, that a warrant based on the Secretary’s safetyinspection plan was improper \”with respect to the taking of samples by personalsampling devices, a procedure that focuses on health violations.\” 695 F.2d at 7. (Seealso 695 F.2d at 4 n.4.)The majority attempts to save the KDK warrant by stating that it was limited tosafety matters because it did not expressly authorize personal sampling of employees. Tothe contrary, however, the KDK warrant permits the Secretary to inspect \”in areasonable manner and to a reasonable extent including but not limited to authority totake environmental samples . . . .\” The Secretary’s regulation in effect when thiswarrant was issued makes it quite clear that this language authorizes personalsampling.[[24]] Similarly, the Secretary has indicated in rulemaking that personalsampling of employees is a reasonable inspection technique for obtaining environmentalsamples. 47 Fed. Reg. 6531, 55479 (1982). See Service Foundry Co. v. Donovan, 721 F.2d 492(5th Cir. 1983); In re Establishment Inspection of Keokuk Steel Castings, Division of KastMetals Corp., 638 F.2d 42 (8th Cir. 1981). Furthermore, even assuming the warrant does notauthorize personal sampling of KDK’s employees, the majority agrees that it allows othertypes of environmental sampling. In promulgating the current regulation, the Secretarystated that while personal sampling of employees is the preferred method of determiningemployee exposure to airborne contaminants during a health inspection, other methods, suchas area sampling or having the inspector wear the sampling device while accompanyingemployees, may be used to conduct environmental sampling. 47 Fed. Reg. 55479 (1982). Evenassuming, as the majority states, that environmental sampling is a permissible safetyinspection method as well, the fourth amendment is not satisfied by placing an employer inthe position of guessing whether an inspection will be limited to one type of violation,health or safety, when it authorizes an inspection method equally applicable to bothtypes.[[25]] The warrants issued in these cases thus authorized inspections that farexceeded the probable cause for their issuance, and violated the employers’ fourthamendment rights.The Secretary contends that even if the warrants are overbroad in scope, we shouldadmit the evidence arising from the warrants because it is not appropriate to excludeevidence in Commission proceedings as a remedy for fourth amendment violations. TheSecretary also asserts that the evidence involved here was acquired in reliance on thoseportions of the warrants for which probable cause did exist and that he acted in goodfaith in relying on the warrants for the acquisition of that evidence. I believe that toadmit this evidence on the theories advanced by the Secretary would thwart the applicationof the fourth amendment to the Act in accordance with the Barlow’s decision.Whether the exclusionary rule is applicable in particular proceedings depends uponits value in deterring the improper conduct of law enforcement officers, balanced againstthe costs of suppression. United States v. Leon, 104 S.Ct. 3405, 3412-13 (1984); UnitedStates 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 prior decision in SarasotaConcrete, in which we determined that the deterrent value of the exclusionary rulejustifies its use in our proceedings. As we noted in Sarasota Concrete, under the Act’scentralized enforcement scheme the Secretary has statutory authority to determine themanner in which all section 8 inspections are conducted. He employs and supervises thepersonnel who conduct those inspections. He also decides which contested citations will beprosecuted. He thus \”has the capability of issuing and enforcing guidelines toeffectuate our holdings involving fourth amendment claims and to respond quickly to theannouncement of these holdings.\” 9 BNA OSHC at 1614, 1981 CCH OSHD at p. 31,532. Wetherefore concluded that application of the exclusionary rule in Commission proceedings\”would have a relatively rapid and widespread effect in ensuring that OSHAinspections are conducted in accordance with the fourth amendment.\” Id. On review,the Eleventh Circuitagreed, and upheld application of the exclusionary rule in our proceedings. Thisconclusion is also consistent with Savina Home Industries, Inc. v. Secretary of Labor, 594F.2d 1358 (10th Cir. 1979), and Babcock & Wilcox, supra, as well as with WeyerhaeuserCo. v. Marshall, 592 F.2d 373 (7th Cir. 1979), in which the court suppressed evidence toremedy a fourth amendment violation in a challenge to an OSHA warrant. As the appellatecourt stated in Sarasota Concrete, \”[i]f fourth amendment rights are to be recognizedin an OSHA context, it seems reasonable that the only enforcement mechanism developed todate should likewise be recognized.\” 693 F.2d at 1071.[[26]]The Secretary alternatively contends that even if the exclusionary rule is applicableto our proceedings, all the evidence gathered pursuant to these warrants should not besuppressed. Rather, he urges that the warrants should be \”redacted\” and onlyevidence obtained under the overbroad portions of the warrants should be excluded.As a practical matter, the language of the warrants is not sufficiently particular tobe severable. The warrant language merely tracks the provisions of the Act which set forththe overall standards of conduct required of employers and require inspections to be\”reasonable.\” See Weyerhaeuser 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 in warrantapplication insufficient).[[27]]It is also important to note that the cases the Secretary cites in support of hisargument for partial suppression of evidence, or redaction of the warrants, are primarilycriminal in nature. The use of evidence in criminal cases is vastly different than incivil cases before 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 CCHOSHD ? 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 Buckley explained, the suppression of evidence normally willdefeat the punitive purposes of the criminal law because evidence of a crime, oncesuppressed, usually cannot be recovered. Different considerations apply in cases under theAct, however, because the purposes of the Act are not punitive but rather remedial. Thus,the Act is intended to achieve safe and healthful working conditions through theelimination of recognized hazards and compliance with standards promulgated under the Act.As Chairman Buckley stated,If evidence from an unlawful OSHA inspection is suppressed, the Secretary can seek toobtain similar evidence from a subsequent, valid inspection or by other means. See section8(b) of the Act, 29 U.S.C. ? 657(b) (Secretary has authority to issue subpoenas ininvestigating possible violations of the Act). If conditions in the employer’s workplacehave changed to the extent that evidence of a violation no longer exists, then anyviolation has ceased to exist, and the Secretary has achieved the result he sought byinitiating the enforcement action. If conditions have not changed, the Secretary canreacquire the evidence by lawful means. He will have lost some time and resources, but inmany cases the lost time and resources will be less than he would expend in litigationarising from questionable inspection practices. In any event, the cost of suppression ismuch less than it is in criminal cases.These observations are consistent with the case law discussing the showing necessary toestablish probable cause for OSHA inspections. The cases clearly demonstrate thatsuppression of evidence obtained from an improper warrant will not preclude the Secretaryfrom reapplying for a warrant to conduct an inspection of proper scope. Thus, anyreasonable grounds for believing that violations may be ongoing or continuing in a plantor worksite will qualify for obtaining a warrant.[[28]] For this reason, the principlessupporting redaction of a criminal warrant do not apply with equal force to anadministrative inspection warrant.Review of OSHA warrant cases reveals no clear authority for redaction here. Factually, thecases cited by the Secretary are significantly different. In Wollaston Alloys, supra, thecourt upheld the warrant because the Secretary had agreed in writing prior to theinspection to limit the scope of the inspection.[[29]] Likewise, in Rockford Drop ForgeCo. v. Donovan, 672 F.2d 626 (7th Cir. 1982), the warrant was limited to certain specificareas within the employer’s plant, and the court, in an action arising before the warrantwas 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 limitationson the inspections in Wollaston Alloys and Rockford Drop Forge were firmly establishedbefore the inspections occurred. In Donovan v. Fall River Foundry, 712 F.2d 1103 (7th Cir.1983), the court, citing Rockford Drop Forge, concluded that it would be appropriate to\”reform\” the warrant to reflect the scope of the actual inspection. In that casethe warrant was predicated on a complaint and the Secretary had voluntarily limited thescope of his inspection to the complaint area. There are no comparable facts in therecords in the cases 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 the courts have, orwould, apply the redaction principle to an administrative OSHA warrant after theinspection and the wrongful invasion of privacy has already taken place. Indeed, in NorthAmerican Car, supra, the Third Circuit quashed the entire warrant because it was overbroadin scope. 626 F.2d at 324. Similarly, in Sarasota Concrete, supra, the Eleventh Circuitaffirmed the Commission’s decision to suppress all evidence obtained under an overbroadwarrant. 693 F.2d at 1072.Certainly, a rule requiring the suppression of all evidence obtained from anoverbroad warrant, regardless whether any of the evidence can be linked to discrete,severable portions of the warrant, would not seriously impede the enforcement of the Act.In the context of the present cases such a ruling means only that the Secretary mustprepare a separate warrant form for the magistrate’s signature for safety and healthinspections. On balance, this slight burden on the Secretary will provide substantialprotections against unconstitutionally broad inspections.On the other hand, application of the redaction principle in our proceedings wouldremove any incentive whatever for the Secretary to comply with the fourth amendment, sincethe Secretary would then be encouraged to apply for warrants of the broadest possiblescope knowing that the evidence he would have obtained under a properly drawn warrantwould never be suppressed. In addition to the irreparable loss of privacy and the burdento the employer resulting from an inspection pursuant to an overly broad warrant, theSecretary could use such a warrant as a pretext for conducting a \”fishingexpedition\” as a means for obtaining evidence which, even if suppressed initially,could be available for subsequent warrant applications. Thus, a rule favoring only partialsuppression of evidence would not preclude the Secretary from using an overly broadwarrant to \”bootstrap\” a showing of probable cause he otherwise would not beable to establish.The exclusion of evidence serves the salutary purpose of ensuring that enforcementofficers act in a manner consistent with the fourth amendment. Indeed, the rule is theonly effective method for ensuring that 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 stated in Mapp v. Ohio,367 U.S. 643, 655 (1961), the exclusionary rule is essential to preserving the fourthamendment as a \”freedom implicit in the concept of ordered liberty.\” See Weeksv. United States, 232 U.S. 383, 393 (1914).Evaluating the importance of the requirement of the fourth amendment that a warrantindicate the proper scope and purpose of an inspection, as compared with the relativelyminor effect on the ultimate remedial purposes of the Act resulting from the suppressionof evidence in a Commission proceeding, it seems clear that primary significance should beaccorded to ensuring that warrants in Commission cases are properly tailored to theirprobable cause basis. In my view, the need to preserve the essential value of a warrantclearly outweighs the incidental benefit to the Secretary of admitting evidenceattributable to particular clauses and phrases within the warrant. To suppress only partof the evidence resulting from an overbroad warrant necessarily requires a pretense thatthere are in fact two inspections–one permissible under the fourth amendment and theother invalid. It is improper to allow the Secretary’s agents to circumvent the scope andnotice requirements of the fourth amendment by such a fiction. United States v. Burch, 432F. 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 resulting from an overly broad warrant willbe suppressed in a Commission proceeding, and that the doctrine of redaction will not beapplied. See Sarasota Concrete, supra, 693 F.2d at 1072 (Commission is empowered to adopta rule of suppressing evidence arising from an overbroad warrant based on a determinationthat the deterrent effect of the exclusionary rule justifies its adoption as anappropriate sanction in Commission proceedings). [[30]]Finally, the Secretary contends that the evidence should not be excluded becauseof the \”good faith\” of his inspectors. The Eleventh Circuit in Sarasota Concreteaffirmed the Commission’s decision in that case not to recognize a \”good faith\”exception to the exclusionary rule in Commission proceedings. Id. Thereafter, in Leon,supra, the Supreme Court expressly held that evidence may not be suppressed when it isobtained by law enforcement officers acting \”in objectively reasonable reliance on asubsequently invalidated search warrant.\” 104 S.Ct. at 3421. Unlike CommissionerWall, I do not believe Leon requires us to overrule Sarasota Concrete insofar as thatdecision rejects application of a \”good faith\” exception in Commissionproceedings. As I state in my dissent in Pennsylvania Steel Foundry & Machine Co., No.78-638 (August 27, 1986), the considerations on which Leon is based do not apply inCommission proceedings. In any event, even assuming a \”good faith\” exception isgenerally applicable, the circumstances of these cares demonstrate that the Secretary didnot act in good faith.As the Court in Leon stated, law enforcement officers must have a reasonableknowledge of what the law requires, and their reliance on the sufficiency of the warrantmust be \”objectively reasonable.\” 104 S.Ct. at 3420-21 & nn. 20 & 23.The principle violated by the warrants here–that a warrant must be tailored to theprobable cause basis for its issuance–is a fundamental rule of fourth amendment law ofwhich we may reasonably expect the Secretary’s agents to be aware. The Secretary’sinstructions to his agents, and their own Field Operations Manual,[[31]] make quite clearthe difference between health inspections and safety inspections. I conclude that theinspectors could not have have reasonably assumed that warrants of unlimited scope toconduct safety and health inspections, based on a limited showing of probable cause toconduct just one or the other, would be valid.[[32]]In the circumstances, the situation in these cases is similar to that at issue inSarasota Concrete, supra, in which the Secretary improperly sought and received a warrantto conduct a full-scope inspection based only on an employee complaint of limited nature.In affirming the Commission’s decision not to apply a \”good faith\” exception,the court held that \”[i]n essence, OSHA officials decided to risk a questionablesearch and now expect to escape responsibility by alleging good faith. Such risk takingwith the constitutional rights of others hardly can be characterized as acting in goodfaith.\” 693 F.2d at 1072. I think that characterization is equally appropriate here.As I have noted, the fourth amendment requires that a warrant be tailored to theprobable cause for its issuance, so that the invasion of privacy rights is no moreintrusive than necessary. This adherence to well-settled fourth amendment principles willnot prevent the Secretary from making inspections or enforcing the Act. Indeed, on reviewbefore us the Secretary does not dispute that each warrant could easily have been tailoredto conform to the particular plan on which its issuance was based. I believe we shouldrequire him to do so.\u00a0FOOTNOTES: [[1]] These two cases present similar legal issues. Since neither case involves anydisputed questions of fact, we consolidate these cases for decision pursuant to CommissionRule 9, 29 C.F.R. ? 2200.9.[[2]]0ne citation alleged that Synkote violated two provisions of the Secretary’slead standard, 29 C.F.R. ?? 1910.1025(d)(2) and 1910.1025(d) (7), by not making aninitial determination of possible lead exposure and by not conducting additionalmonitoring to detect possible new or additional exposure. A second citation chargedSynkote with not having posted the OSHA informational notice, contrary to 29 C.F.R. ?1903.2(a)(1), and with failing to maintain a log of occupational injuries and illnessesrequired by 29 C.F.R. ? 1904.2(a). KDK was charged with one violation of an occupationalsafety standard, 29 C.F.R. ? 1910.215(b)(9), for failing to provide tongue guards on agrinding machine.[[3]]This directive is one of a series of instructions issued by the Secretary toset forth the criteria and methods by which employers are selected for routine,\”programmed\” inspections, that is, inspections other than those based oncomplaints of unsafe or unhealthful working conditions or on the occurrence of an accidentresulting in injuries to employees. See note 4 infra.[[4]] OSHA Instruction CPL 2.25C, effective October 1, 1982, is the successor toCPL 2.25B. The purpose of these directives is to concentrate programmed or scheduledinspections in those industries presenting the greatest risk of health or safety hazards.See United States Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1147-48 n.1 (5thCir. 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, CPL2.71, which somewhat modifies these inspection priorities by directing that a smallpercentage of inspections will be conducted in industries having below-average lostworkday injury rates. 1 BNA Ref. File 21:9344. With this modification, the currentprogrammed inspection directive is now designated CPL 2.25F CH- 2, February 3, 1986. 3 CCHESHG New Developments ? 8783.[[5]]With some modifications, the two warrants essentially copy the broad languageof the Act. The inspection provision in section 8(a) of the Act, 29 U.S.C. ? 657(a),authorizes the Secretary(1) to enter without delay and at reasonable times any . . . workplace or environmentwhere work is performed by an employee of an employer; and(2) to inspect and investigate during regular working hours and at other reasonabletimes, and within reasonable limits and in a reasonable manner, any such place ofemployment and all pertinent conditions, structures, machines, apparatus, devices,equipment, and materials therein . . . .The Supreme Court in Marshall v. Barlow’s Inc., 436 U.S. 307, 325 (1978), held thatsection 8(a) was unconstitutional \”insofar as it purports to authorize inspectionswithout a warrant.\”[[6]] KDK and Synkote also challenge provisions of the warrants authorizing theSecretary to inspect certain types of employer records and to conduct interviews withemployees. KDK and Synkote also claim that the warrants are invalid because theSecretary’s enforcement directives have not been published in the Federal Register.[[7]] The Health Inspection Plan provisions of each directive explain the basis forthe difference in methodologies:In scheduling General Industry (safety) inspections, industries (SIC’s) are selectedprimarily on the basis of the frequency of injuries in those industries. In comparisonwith injury incidence rates, however, ILLNESS [sic] incidence rates often do notaccurately reflect health hazards in the workplace. Targeting of General Industry (health)inspections, therefore, is based on the agency’s Health Inspection Plan (HIP). The HIPselects industries with the greatest potential for health problems.\u00a0 CPL 2.258,Appendix A (footnote omitted). The language appearing in Appendix A of CPL 2.25 C isvirtually identical.[[8]]The employers do not contend that the Secretary did not have probable cause fora safety inspection in KDK and a health inspection in Synkote.[[9]]In Synkote, for example, the warrant specifically authorized the Secretary toattach monitoring devices to employees.[[10]]For example, environmental sampling may be necessary to determine whether anexplosive concentration of flammable vapors is present in the workplace. See 29 C.F.R. ?1910.94(c)(6)(ii) (ventilation of spray booth must dilute solvent vapor to at least 25percent of solvent’s lower explosive limit).[[11]] Section 3(8) of the Act contains a definition of \”occupational safety andhealth standard.\” The term is thereafter used in numerous sections 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 that the Secretarysought to conduct a health inspection under the provisions of OSHA Instruction 2.25B.Thus, the magistrate was fully informed of the Secretary’s asserted probable cause basisfor seeking the warrant.[[13]] Chairman Buckley also notes that, before the warrant in Synkote was executed,the warrant was upheld by a U.S. District Judge in an action in which Synkote argued theinvalidity and overbreadth of the warrant. 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 basis toconclude that he was justified in conducting the inspection on the basis of the warrant.[[14]] In Wollaston Alloys, Inc. v. Donovan, 695 F.2d at 7, the court intimated thatthere might be merit in the argument, but that decision was handed down several days afterthe inspection of Synkote’s workplace.[[15]] This is what the law is, not necessarily what I believe it should be. I haveserious reservations whether the Commission, as an executive branch agency, mayconstitutionally review the probable cause determination of an Article III judicialofficer. The holding of the courts that the Commission is merely deciding whether to admitor exclude evidence in its own proceeding seems to me to be a legal fiction. No matter howcouched, the net result is that the Review Commission is grading the papers of the UnitedStates Magistrate. Nevertheless, the courts have made it very plain that once aninspection takes place the employer may not raise his constitutional warrant challenges inthe district court, and that the Commission should initially determine theseconstitutional questions. For that reason, and out of fairness to the employer who has noother forum to make any factual record needed for his constitutional claims. I believe wemust adhere to the Commission’s earlier holding in Sarasota Concrete and rule on theseconstitutional warrant challenges.[[16]]Chairman Buckley would suppress evidence obtained pursuant to an invalidwarrant only if the Secretary made a false or misleading statement in the warrantapplication, or if the Secretary’s inspectors exceeded the scope of the inspectionauthorized by the warrant. This view, however, simply cannot be reconciled with theholding in Sarasota Concrete. In Sarasota Concrete there was no false or misleadingstatement in the warrant application. In that case the Secretary forthrightly applied fora broad warrant to inspect Sarasota’s entire workplace on the basis of a complaint thatwas very limited in scope. The magistrate granted the broad warrant, and the Secretary’sinspectors did not exceed the scope of the inspection authorized by the warrant. Both theCommission and the Eleventh Circuit agreed that the evidence should be suppressed becausethe warrant was overbroad in scope — precisely the situation here.I also note that Chairman Buckley is inconsistent on his rulings on the two warrantsbefore us. On the one hand he declines to address Synkote’s objections to the scope of thewarrant because he believes the Commission may not review the actions of the magistratewho issued that warrant. Yet he joins with Commissioner Wall in upholding the warrantissued to KDK on the grounds that it was properly limited in scope to the probable causefor its issuance. Thus, he does effectively rule on the constitutional questions inKDK–but does not in Synkote. This selective application or disregard of Sarasota Concreteis not fair to the parties.[[17]]The Act itself generally differentiates matters pertaining to occupationalsafety from those relating to occupational health. Thus, section 2(b)(6) of the Act, 29U.S.C. ? 651(b)(6), states that the Act’s objectives are to be accomplished by\”exploring ways to discover latent diseases, establishing causal connections betweendiseases and health problems, in recognition of the fact that occupational healthstandards present problems often different from those involved in occupationalsafety.\” (emphasis added.) Other sections of the Act apply only to matters to healthand not safety. Section 6(b)(5), 29 U.S.C. ? 655(b)(5), prescribes specific requirementsfor the promulgation of standards dealing with \”toxic materials or harmful physicalagents,\” with the objective of protecting against \”material impairment of healthor functional capacity.\” Section 6(b)(7) requires that where appropriate a standard\”shall prescribe the type and frequency of medical examinations or other tests whichshall be made available . . . to most effectively determine whether the health of suchemployees is adversely affected.\” Section 20, 29 U.S.C. ? 669, authorizes researchto determine, among other things, levels of exposure to toxic materials and harmfulphysical agents and substances \”at which no employee will suffer impaired health orfunctional capacities or diminished life expectancy as a result of his workexperience,\” as well as \”medical examinations and tests as may be necessary fordetermining the incidence of occupational illnesses and the susceptibility of employees tosuch illnesses.\”[[18]] For additional discussion see United States Department of Labor v. KastMetals, 744 F.2d 1145, 1147-48 n.1 (5th Cir. 1984) (health) and Phoenix Forging, Co., 85 OSAHRC ____, 12 BNA OSHC 1317, 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 virtually identical.[[20]] In response to Synkote’s request for admissions, the Secretary stated that herelied on the health inspection provisions of CPL 2.25B and that \”this was a healthinspection.\” The Secretary specifically admitted that he sought authority to conducta programmed safety inspection of KDK’s worksite \”rather than a programmed healthinspection,\” and that he had no probable cause basis for any type of inspection\”other than a programmed safety inspection.\”It is true that the Secretary’s instructions to his inspectors do allow concurrentsafety and health inspections when \”resources are available\” and \”it islikely\” that both safety and health hazards may exist to a significant degree.However, that is very different from whether the scope of the warrant relates to theprobable cause shown for its issuance. If the Secretary desires a warrant to conduct botha safety and a health inspection and it is indeed \”likely\” that both safety andhealth hazards \”exist to a significant degree,\” he need only make such a showingto the magistrate. The fact that the Secretary has authorized his inspectors to conductconcurrent safety and health inspections says nothing about the probable cause shown orthe scope of the warrant issued.[[21]] In Sarasota Concrete, the Eleventh Circuit affirmed the Commission’sdetermination that a specific complaint relating to a localized condition does notconstitute probable cause for a warrant authorizing a full-scope inspection of the entireworksite.In two cases before the Ninth Circuit that court ruled that a full-scope inspection couldproperly be conducted under a warrant predicated on an employee complaint. Both of theseholdings, however, were based on the proposition that the conditions asserted in thecomplaints were sufficiently pervasive to justify an inspection of the entire worksite.Thus, in In re Establishment Inspection of J.R. Simplot Co., 640 F.2d 1134 (9th Cir.1981), the employer conceded that the complaint was sufficient to establish probable causefor a complete inspection of its feed lot. Although the feed lot in actuality comprised adistinct and separate portion of the employer’s facility, the information made availableto the district court Judge who issued the warrant allowed him to reasonably conclude thatthe facility consisted of only one single undivided 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 be necessary to detectthe hazard of inadequate ventilation alleged in the complaint. Similarly, the TenthCircuit recently upheld a warrant authorizing a full-scope inspection based on an employeecomplaint on the ground that the complaint allegation of discrete hazards at separatelocations together with the observation of a number of hazardous conditions in plain viewestablished that hazards permeated the workplace. Robert K. Bell Enterprises, Inc., v.OSHRC, No. 85-1547 (10th Cir. 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 that inspection of the entireworkplace would be reasonable) (concurring opinion of Judge Fairchild). Thus, thedecisions upholding full-scope warrants based on employee complaints of specific hazardousconditions are consistent with the basic principle that the scope of the warrant must bereasonably related to the probable cause established for its issuance.Under Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), warrants based on a generaladministrative plan, such as those involved here, do not have to be restricted to aspecific physical area of the worksite. See, e.g., In re Establishment Inspection ofGilbert & Bennett Mfg. Co., 589 F.2d 1335, 1343 (7th Cir.), denied, 444 U.S. 884(1979) The issue here, however, is not the physical area of the worksite to be inspected,but rather the type of violation for which an inspection may be authorized. No court hasaddressed this particular issue.[[22]] Warrants such as those involved here, which authorize full-scope \”wallto wall\” inspections, necessarily impose a substantial burden on employers. SarasotaConcrete, supra, 693 F.2d at 1068 & n.9; Cerro Metal Products, Division of MarmonGroup, Inc. v. Marshall, 620 F.2d 964, 974 (3d Cir. 1980). As the court stated in thelatter case, \”a typical OSHA inspection is more than an unobtrusive scrutiny.Inspections of entire plants . . . necessarily create inconvenience to the employer and acertain amount of lost time for employees who escort the inspector or are otherwisedisrupted in their work. Even if no violations were found and no citations issued, anemployer would not regard such an inspection as 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 take environmentalsamples and to . . . employ other reasonable investigative techniques . . . . As usedherein, the term \”employ other reasonable investigative techniques\” includes . .. the attachment of personal sampling equipment such as dosimeters, pumps, badges andother similar devices to employees in order to monitor their exposures.\”[[25]]While I agree with the majority that the phrase \”occupational safety andhealth standards\” in the scope provision of the warrant does not necessarily imply ahealth inspection, I emphasize, as discussed more fully infra, that the replication ofstatutory language and similar \”boilerplate\” does not satisfy the specificityrequirements of the fourth amendment. See notes 27 & 29 infra.[[26]] In INS v. Lopez-Mendoza, 104 S.Ct. 3479 (1984), the Court held that it wouldnot apply the exclusionary rule to an Immigration and Naturalization Service civildeportation proceeding. While adhering to the 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 in violation of the fourthamendment. The Court reasoned that the deterrent value of excluding such evidence in adeportation proceeding was substantially reduced by several factors, including theavailability of evidence gathered independently of or sufficiently attenuated from theoriginal arrest, the particular field conditions under which INS arrests normally occur,and the specific procedures established by the INS to control its field personnel inmaking arrests and to investigate and punish violations of the fourth amendment by itsofficers. These factors are not present in OSHA proceedings. Furthermore, Lopez-Mendozainvolves warrantless arrests as opposed to the acquisition of evidence through a warrant.The decision whether or not to arrest a suspect without a warrant must be made quickly asConditions occur, without the opportunity for reflection or study. As the court stated,arrests of illegal aliens occur under \”chaotic\” conditions. 104 S. Ct. at 3487.The opposite is true with respect to OSHA warrants for programmed inspections. TheSecretary’s field personnel have ample opportunity to develop their showing of probablecause and to prepare warrants and applications that are properly limited in scope. In myopinion, Lopez-Mendoza is clearly distinguishable.[[27]] The general proscription in the Act that inspections be \”reasonable\”is not sufficient to supplant the fourth amendment’s warrant requirement because itaffords no guidance to inspectors in the exercise of their authority to conduct aninspection. See Donovan v. Dewey, 452 U.S. 594, 601 (1981); Marshall v. Wollaston Alloys,Inc., 479 F. 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 isco-extensive with the fourth amendment such that an inspection conducted in violation ofthe fourth amendment necessarily establishes a violation of section 8(a) as well.[[28]] E.g., Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d 1313 (7thCir. 1980) (complaints received 5 and 6 months prior to warrant application are not stalewhere the alleged violations are not of a type likely to disappear through mere passage oftime); Pelton Casteel, Inc. v. Marshall, 588 F.2d 1182 (7th Cir. 1978) (Secretary mayre-inspect to determine whether prior violations have been abated when it has reasonablegrounds to believe that the violations may be continuing); In re Establishment Inspectionof Seaward International Inc., 510 F. Supp. 314 (W.D. Va. 1980), aff’d without publishedopinion, 644 F.2d 880 (4th Cir. 1981) (determination that substances which were thesubject of an employee complaint were used as part of regular production processes allowsinference that the violation was of continuing nature); In re Establishment Inspection ofBP Oil, Inc., 509 F. Supp. 802 (E.D. Pa.), aff’d, 10 BNA OSHC 1304 (3d Cir. 1981) (notofficially reported) (rejecting argument that probable cause requires proof thatcontinuing violations were in existence at the precise time the warrant is issued); In reInspection of Central Mine Equip. Co., 7 BNA OSHC 1185 (E.D. Mo. 1979), 1979 CCH OSHD ?23,309 (magistrate’s order), rev’d on other grounds, 608 F.2d 719 (8th Cir. 1979) (age ofinformation in a complaint but one factor to be considered in determining probable cause;other considerations, which are not applicable in the case of criminal warrants, includethe nature of the alleged violation and the nature of the facility in question). Inaddition, the Supreme Court observed in Barlow’s supra, 436 U.S. at 318, that theeffectiveness of the Act had not been adversely affected by the time lapse between anemployer’s warrant request and the Secretary’s return with the necessary process to compelentry. The Secretary has not referred us to any circumstances demonstrating that there isa greater likelihood of an employer altering or disguising conditions prior to areinspection than there is of an employer concealing conditions before the Secretaryreturns with a warrant to conduct an initial inspection.[[29]] Even so, the court criticized the general language of the warrant,characterizing it as \”standard boilerplate in many OSHA inspection warrants\”which \”causes us concern.\” 695 F.2d at 8. At least two other courts of appealsand one district court have also expressed disapproval of of the consistent use of\”unrelieved\” boilerplate in OSHA warrants. E.g., Wollaston Alloys, supra;Donovan v. Federal Clearing Die Casting Co., 655 F.2d 793, 797 (7th Cir. 1981); Marshallv. Milwaukee Boiler Manufacturing Co., 626 F.2d 1339 (7th Cir. 1980); Pool Offshore Co.,supra. See Donovan v. Dewey, 452 U.S. 594, 601 (1981).[[30]] I do not share the Secretary’s concerns, expressed before the Judges below,regarding the practicality of restrictions on the scope of an inspection. Although theSecretary’s own directives, supra, permit inspectors to conduct a joint health and safetyinspection, they nevertheless distinguish health and safety matters insofar as theallocation of inspection resources is concerned. The fact is that the Secretary’senforcement personnel do routinely conduct inspections limited either to health or safetymatters. E.g., Blocksom & Co. v. Marshall, 582 F.2d 1122 (7th Cir. 1978) (separatehealth and safety inspections 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 Establishment Inspection of Marsan Co., 7 BNA OSHC 1557, 1979CCH OSHD ? 23,856 (N.D. Ind. 1979) (not officially reported) (industrial hygiene referralmade by safety inspector; industrial hygienist then applied for warrant to conduct ahealth inspection).[[31]]See Chapter II, Compliance Programming.[[32]]The majority opinion suggests that the Secretary was justified in believing thewarrant in Synkote was valid because it had been upheld by the district court after anadversary hearing. The majority fails to mention, however, that the district court did notconsider the question before us–i.e. the scope of the warrant.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ([email protected]),telephone (202)606-5398), fax (202-606-5050), or TTY (202-606-5386).”