“SECRETARY OF LABOR,Complainant,v.TRI-STATE STEEL CONSTRUCTION, INC.,andNATIONAL ENGINEERING & CONTRACTING COMPANY,Respondents.OSHRC Docket Nos. 89-2611 & 89-2705 (Consolidated)_DECISION_Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:\/Introduction\/These consolidated cases arise out of an Occupational Safety and HealthAdministration (\”OSHA\”) inspection of a multi-employer constructionworksite. Both National Engineering & Contracting Company (\”National\”)and its wholly-owned subsidiary, Tri-State Steel Construction, Inc.(\”Tri-State\”), were subcontractors on that project. As a result of theInspection, OSHA issued these two employers a total of five citations,alleging numerous violations of the Act. Following a hearing on themerits of the five citations, the Review Commission’s administrative lawjudge (\”the ALJ\” or \”the judge\”) issued his decision, in which heaffirmed most of the alleged violations, vacated others, and rejectedthe Fourth Amendment defense that had been raised jointly by the twoemployers. For the reasons that follow, we affirm the judge’s rulingson the Fourth Amendment issues that are before us. However, we reversethe judge and vacate the only citation item-citation no. 1, item 9, inDocket No. 89-2705–that remains before us for a decision on themerits.[[1]]I. THE VALIDITY OF THE WARRANTLESS INSPECTION\/A. Background\/The construction project at issue was a highway rehabilitation projectthat is referred to throughout the record as \”Project 8.\” This project,involving the reconstruction of 36 bridges, covered four miles ofroadway on three interstate highways that converge in or nearCincinnati, Ohio. Work was begun on the project in February 1989 andwas still continuing at the time of the hearing in these cases (inAugust 1990).The prime contract on project 8 was between the Ohio Department ofTransportation (\”ODOT\” or \”the project administrator\”) and John R.Jurgensen Co. (\”Jurgensen\” or \”the general contractor\”). Jurgensen inturn had a subcontract with National covering all of the bridgereconstruction work except for \”deck overlay.\” And National had asubcontract with Tri-State to perform all of the steel erection workthat was involved in National’s contract with Jurgensen.Because this project involved work on sections of interstate highwaythat were elevated over the city streets of downtown Cincinnati, it wasnecessary to develop a 348-page-long traffic control plan to assure thatthe work was performed safely and sequentially (in planned phases),while allowing traffic to continue to flow on those lanes that were notcurrently being rehabilitated. The plan was developed by ODOT and thenapproved by the Federal Highway Administration (\”the FHWA\”). Jurgensenhad exclusive responsibility for implementing the plan, includingplacement of barrels and traffic control devices as directed in theplan. It is undisputed that neither National nor Tri-State had anycontractual responsibility for traffic control measures. Moreover, anychanges in the plan could only be implemented following ODOT approval.The events leading up to the challenged inspection in these cases beganon Thursday evening, April 27, 1989, when Jurgensen made certain changesin the placement of barrels and traffic control devices. These changesallowed National and Tri-State employees to begin working in the twocenter lanes of two adjoining, while traffic continued to flow on thetwo outer lanes of those bridges. [[2]] Following the directions statedin ODOT’s traffic control plan, Jurgensen rearranged the barrels in aV-shaped pattern, with the two center lanes in the center of the V.Barrels and traffic control devices were also set up on the roadwayleading up to bridge 6 in an attempt to compel motorists to go either tothe left or to the right of the blocked-off work area. The barrelswere placed at 50 foot intervals beginning more than a mile beforereaching the work area and continuing on both sides of the work area itself.On Friday morning, April 28, rush hour traffic confronted this newtraffic configuration for the first time, and serious problems quicklydeveloped. Many motorists found themselves being channeled into lanesthat took them in directions they did not want to go. On severaloccasions, motorists responded to the discovery that they were in thewrong lane by passing between the barrels, over the two \”blocked-off\”center lanes, and into the opposite outer lane, where they thenre-entered the traffic flow.[[3]] In taking this route, they passedright through the area where National and Tri-State employees wereworking, creating a hazard to the work crews.As the hazard became increasingly apparent that Friday morning, theproject superintendent for National and Tri-State ordered measures takento protect the employees.[[4]] Trucks and other vehicles were movedinto position to create barricades around the end dams and expansionjoints where the employees were working. \/See supra\/ note 2. Inaddition, guardrails that had been removed from the parapets were placedon the ground between the barrels. However, state inspectors soonordered removal of these stacked guardrails because they were creating ahazard to the motorists. Finally, project superintendent Taylor had hisoffice worker contact higher-level state employees. As a result of thisdiscussion, ODOT ordered Taylor to remove the employees from the bridges.At the contractors’ routine bi-weekly progress meeting that samemorning, Taylor raised the above-described hazard, on Fort WashingtonWay, as an issue. After discussion, ODOT agreed to allow Jurgensen tobring in additional barrels, thereby reducing the intervals betweenbarrels from 50 to 25 feet.[[5]] For unexplained reasons, however, thisdoubling of the barrels was limited to the area motorists passed throughbefore reaching bridge 6. Thus, it had little or no effect on thehazard created by the vehicles crossing through the work area. TheRespondents, however, made some efforts to protect their work crews–byplacing trucks and welding machines in strategic positions and by usingemployees with \”slow\” signs as a supplemental traffic control measure.On May 4, 1989, almost a week after the hazard first arose, arepresentative of the worksite employees filed a formal complaint ofunsafe working conditions with the local OSHA area office.[[6]] Thecomplaint described the hazard that existed on Fort Washington Way andidentified Jurgensen as the employer. [[7]] OSHA compliance officerCannon (\”CO Cannon\” or \”Cannon\”) and CO trainee Boatman arrived at theFort Washington Way worksite to investigate the complaint’s allegations;within hours of receiving the complaint.[[8]] Upon arriving at bridge6, CO Cannon drove his van between two barrels and parked in the two\”blocked-off\” center lanes of the highway. Almost immediately afterstepping out of the van, CO trainee Boatman began videotaping the scene,and he continued videotaping on an intermittent basis throughout the twohours the CO’s spent at the worksite.Upon reaching the work crew, CO Cannon introduced himself and presentedhis credentials to the first worker he met. He asked that worker toidentify the supervisor in charge of the worksite. The worker directedhim to Tri-State’s general foreman Hunter, \/see supra\/ note 4, andCannon proceeded to represent his credentials to Hunter. At this point,Cannon learned for the first time that all of the exposed workers wereemployed by Tri-State–apparently, the National employees had completedtheir work in the area, \/see supra\/ note 2–and not by Jurgensen, theemployer that was named in the complaint.Hunter did not express any objection to the presence of the OSHAcompliance officers, but he did inform them that he would have to notifyhis supervisor or someone else from National. Approximately 20 to 30minutes after the arrival of the OSHA inspectors, project superintendentTaylor, Hunter’s supervisor, and assistant project superintendent Febusarrived at the work area. They apparently came up to the work area fromthe office trailer shared by National and Tri-State, which was locateddirectly below one of the sections of elevated highway that was beingrehabilitated. According to CO Cannon, these management officials didnot object to his presence at the worksite, although they did ask thatthe entire group go down to the office trailer to discuss the matter. Cannon refused this suggestion on the ground that he was dealing with animminent danger situation that \”needed to be addressed now.\” For thisreason, he held an abbreviated opening conference with Taylor, Febus,and Hunter at the work area in question rather than a formal conferenceat the office trailer.Shortly after the arrival of Taylor and Febus, a Jurgensenrepresentative and ODOT’s onsite representative in charge of trafficcontrol also arrived at the work area. Finally, approximately an hourafter the inspectors’ arrival, the attorney representing both Nationaland Tri-State arrived. Immediately upon joining the group, the attorneyformally demanded that the CO’s cease their inspection and obtain anadministrative inspection warrant. Cannon responded, first, by refusingthe request, arguing that he did not need a warrant because he was onpublic property, and, second, by continuing his inspection andinvestigation. As indicated previously, the CO’s remained at theworksite for approximately two hours.[[9]] They then went down to theoffice trailer area, where they met with representatives of Jurgensen,the general contractor.There was no patrol car at the site on May 4 (or indeed at any timeprior to OSHA’s arrival). However, CO Cannon received assurances, that apatrolman would be sent out the next day for the purpose of ticketingmotorists who disobeyed the existing traffic signals by passing throughthe work area. Cannon was already back at the work area on Fridaymorning, May 5, when the patrolman arrived at approximately 9:00 a.m.However, this measure also failed to abate the hazard. Thus, the COobserved that, while the patrolman was in the process of writing out aticket to one offending motorist, one or two others would pass betweenthe barrels and through the work area. On Friday, the hazard wasalleviated only when the employees walked off the site because of astrike, which was not related to the hazard. Tri-State’s employees wereback at work on bridges 6 and 2 by the following Monday morning, if notearlier.Cannon testified that he returned to the work area on Monday, May 8, ina continuing effort to resolve the traffic control problem and also toconduct employee interviews. He again limited his inspection to thework area on bridges 6 and 2, and he again observed that, while thepatrolman was writing out a ticket to one offending motorist, others atthe same time were passing through the work area unimpeded.At some time during the morning of May 8, the CO returned to his officeto meet with the area director. Subsequently, the area director and\/Jurgensen’s \/president reached agreement by telephone on a means toeliminate the hazard. \/Jurgensen \/agreed to reduce the distance betweenbarrels to 10 feet (by adding more barrels on both sides of the workarea) and then to erect a \”snow fence\” connecting the barrels along oneside of the work area. After obtaining ODOT’s approval for thesechanges in the traffic plan, Jurgensen fully implemented them by the endof the work day on Monday.By then, OSHA’s attention had already shifted elsewhere. During atelephone call made from the worksite to the OSHA office earlier thatsame morning, the area director instructed Cannon to expand hisinspection to cover the entire worksite, i.e., all of project 8.Accordingly, the CC attempted to set up an opening conference withrepresentatives of all of the contractors that were then working on theproject. This fell through, however, when Jurgensen’s representative,and also the representative of National and Tri-State, demanded thatCannon obtain an administrative inspection warrant before expanding hisinspection beyond the geographical area and physical hazard described inthe employee representative’s complaint. OSHA therefore obtained such awarrant on the following day, May 9. On the day after that, May 10,Cannon again returned to the worksite to serve that warrant and to beginthe second phase, of his inspection. which we will discuss separatelyinfra.[[10]]B. \/Analysis\/On review, the Secretary presents three alternative legal theories insupport of her contention that the warrantless phase of the inspectiondid not violate the. Fourth Amendment.[[11]] The ALJ held that thewarrantless inspection was valid and apparently based his holding on twoof the Secretary’s arguments…validity under the \”public right-of-way\”rationale and validity under the \”plain view\”‘ doctrine. For thereasons that follow, we reject the judge’s reasoning, but not hisultimate conclusion. Instead, we agree with the Secretary’s thirdalternative theory..that the warrantless inspection was valid under the\”open fields\” doctrine. We therefore affirm the judge’s determinationthat the Respondents’ Fourth Amendment rights were not violated, but forreasons different than those stated by the judge.The first theory that we address is essentially the argument that COCannon made when he rejected the demand of the Respondents’ attorney todiscontinue his inspection and obtain an administrative inspectionwarrant. As indicated, the CO’s response was that he did not need toget a warrant because he was on public property. Both the ALJ and theSecretary have supported this claim. However, for the reasons thatfollow, we disagree.The basis for this \”public right-of-way\” argument is the decision of theUnited States Supreme Court in \/Marshall v. Barlow’s, Inc\/., 436 U.S.307 (1978) (\”\/Barlow’s\”\/). In \/Barlow’s\/, the Court held that the FourthAmendment generally prohibits warrantless, nonconsensual inspections ofbusiness establishments under the Act. More specifically, it held that,because the employer in that case refused to agree to a voluntaryinspection, OSHA was required under the Fourth Amendment to obtain anadministrative inspection warrant before it could inspect \”the nonpublicarea\” of the employer’s manufacturing establishment:The critical fact in this case is that entry over Mr. Barlow’s objectionis being sought by a Government agent. Employees are not beingprohibited from reporting OSHA violations. What they observe in theirdaily functions is undoubtedly beyond the employer’s reasonableexpectation of privacy. \/The Government inspector, however, is not anemployee. Without a warrant he stands in no better position than amember of the public.\/ What is observable by the public is observable,without a warrant, by the Government inspector as well…. [However, thefact that an employer permits employees into a work area) furnishes nojustification for federal agents to enter a place of business from whichthe public is restricted and to conduct their own warrantless search.436 U.S. at 314-15 (emphasis added). \/See also Concrete Const. Co\/., 15BNA OSHC 1614, 1617, 1992 CCH OSHD ? 29,681, p. 40,240 (No. 89-2019,1992) (the Fourth Amendment \”does not require a warrant for anonconsensual inspection of a workplace to the extent the workplace isopen to the public\”).Accordingly, in order for the Secretary to prevail on her \”publicright-of-way\” theory, we must view the compliance officer, actingwithout a warrant, as being \”in no better position than a member of thepublic.\” \/Barlow’s\/. 436 U.S. at 315. We must conclude that the COlimited his inspection to areas that were open to the public and did notenter areas \”from which the public is restricted.\” \/Id.\/ This we cannotdo. At the hearing, the compliance officer admitted that thewarrantless phase of the inspection took place in a work area that thepublic was not permitted to enter and that the \”purpose\” of placing thebarrels around the two center lanes \”was to keep members of the motoringpublic out of the area.\” In addition, the Respondents have argued thatthe contract between ODOT and national had the effect of removing thoselanes that were being reconstructed from public use and placing themunder the exclusive control of the Respondents. Finally, we emphasizethe testimony of CO Cannon concerning the second and third days of hisinspection.Cannon testified that, on both of those days, a patrolman was sent outto the work area in question to issue tickets to motorists who drovebetween the barrels and across the two center lanes. We conclude thatthis unrebutted testimony establishes conclusively that the work areawas closed to the public and not part of the public right-of-way. Motorists could not have been ticketed for driving in areas that wereopen to the public.[[12]]For this same reason, we also reject the second of the Secretary’s threealternative theories. The Secretary argues, and the judge held, thatthe warrantless inspection of the work area in question was justifiedunder the \”plain view\” doctrine, which is a recognized exception in thecase law to the Fourth Amendment’s warrant requirement. We agree,however, with the Respondents that the \”plain view\” doctrine does notapply to the challenged inspection.There are two significant limitations to the \”plain view\” doctrine, bothof which render it inapplicable to the cases now before us. \”The firstof these is that plain view \/alone\/ is never enough to justify thewarrantless seizure of evidence.\” \/Coolidge v. New Hampshire\/, 403 U.S.443, 468 (1971) (\”\/Coolidge\/\”). Instead, the \”plain view\” doctrine canonly be applied when the OSHA inspectors make their \”‘plain view\”observations from a location where they are legally justified in being.\/See id,\/ 403 U.S. at 466; \/Illinois v. Andreas\/, 463 U.S. 765, 771(1983) (\”\/Andreas\/\”).\”The second limitation is that the discovery of evidence in plain viewmust be inadvertent….[W]here the discovery is anticipated, [w]here thepolice know in advance the location of the evidence and intend to seizeit, the situation is altogether different.\”‘ \/Coolidge,\/ 403 U.S. at469-70. \/See also id\/., 403 U.S. at 471 n.27 (\”This Court has neverpermitted the legitimation of a planned warrantless seizure on plainview grounds. . . and to do so here would be fla ly inconsistent withthe existing body of Fourth Amendment law\”); \/United States v. Marbury\/,732 F.2d 390, 399 (5th Cir. 1984)(\”\/Marbury\/\”).The cases now before us are distinguishable from the \”plain view\”doctrine cases on both of these key grounds. Thus, the OSHA CO’s werenot \”lawfully in a position,\” \/see Andreas,\/ 463 U.S. at 771, to observethe conditions they observed during their warrantless inspection of thework area described in the employee representative’s complaint. Instead, they were trespassing in an area that was open only to theRespondents’ employees and closed off to the general motoring public.Moreover, the observations of the CO’s were hardly inadvertent. On thecontrary, they went to the workplace for the express purpose ofinvestigating a complaint of unsafe working conditions and inspectingthe work area described in the complaint. In sum, we conclude that the\”plain view\” doctrine cannot be used to justify a three-day-longwarrantless OSHA inspection conducted over the employer’s clearly-statedobjections and demands for a warrant.[[13]]Nevertheless, although we disagree with the judge’s reasoning, we agreewith his ultimate conclusion that the warrantless inspection at issuehere did not violate the Fourth Amendment. Indeed, the Fourth Amendmentdid not even apply in this context because the warrantless phase of theinspection fell within the Amendment’s \”open fields\” doctrine. Under the\”open fields\” doctrine:[A]n individual may not legitimately demand privacy for activitiesconducted out of doors, in fields, except in the area immediatelysurrounding the home [i.e., the \”curtilage,\” see infra note 14]…. Thisrule is true to the conception of the right of privacy embodied in theFourth Amendment…….. There is no societal interest in protecting the privacy of thoseactivities, such as the cultivation of crops, that occur in openfields….[Therefore,] the asserted expectation of privacy in openfields is not an expectation that \”society recognizes as reasonable.\”\/Oliver v. United States\/, 466 U.S. 170, 178-79 (1984) (\/\”Oliver\/\”).Similarly, we conclude that there is no societal interest in protectingthe asserted privacy of the highway rehabilitation activities that areat issue before us in these proceedings.[[14]]We recognize, of course, that the area inspected during the warrantlessfirst phase of the inspection at issue here was not a field it all, butrather an elevated section of interstate highway. Nevertheless, the workarea can still be classified as an \”open field\” for Fourth Amendmentpurposes: \”[T]he term ‘open fields’ may include any unoccupied orundeveloped area outside of the curtilage. An open field need beneither ‘open’ nor a ‘field’ as those terms are used in common speech.\” \/Id\/., 466 U.S. at 180 n.11. \/See, e.g\/., \/United States v. Fahey\/, 769F.2d 829 (1st Cir. 19.) (\”open fields\” doctrine applied to mining sitein open desert); \/Marbury\/, 732 F.2d at 398 (doctrine applied to largetract of commercial property, including gravel pits and roadways).The Respondents challenge the Secretary’s reliance on the \”open fields\”doctrine by claiming that the doctrine does not apply here because itonly \”permits a warrantless search upon property from which no efforthas been made to exclude the public.\” We agree with the Secretary,however, that \”[i]t is only by ignoring extensive caselaw that such astatement could be made.\” Thus, for example, in Dunn, supra note 11,the law enforcement agents made a warrantless entry onto a 198-acreranch, crossing over the perimeter fence and three interior fences,including a barbed-wire fence, in order to reach their vantage pointwhere they could look into the interior of a barn. Nevertheless, theCourt held that, under the \”open fields\” doctrine, there was no FourthAmendment violation–even if it accepted the rancher’s argument that thebarn was \”an essential part of his business.\” 480 U.S. at303-04.[[15]] \/See also Ackermann Enterprises, Inc., supra\/ note 13, 10BNA OSHC at 1712, 1982 CCH OSHD at p. 32,839 (\”There is no violation offourth amendment rights when a government agent’s observations occur in’the open fields’. . . even if the government agent trespasses onprivate property to make his observations\”).[[16]]II. THE VALIDITY OF THE EXPANDED INSPECTIONA. Background1. The warrant applicationOn May 9, 1989, the day after the three contractors (Jurgensen, Nationaland Tri-State) blocked its attempt to expand its inspection beyond theFort Washington Way work area, OSHA went into the United States DistrictCourt for the Southern District of Ohio, Western Division (hereafter\”the district court\”) to obtain an administrative inspection warrant. OSHA sought authorization for a full-scope, comprehensive inspection ofproject 8. In support of this warrant application, OSHA filed anaffidavit executed by OSHA Compliance Officer William J. Wilkerson (\”COWilkerson\” or \”Wilkerson\”), a \”duly authorized [OSHA] agent,\” and fourattached exhibits, which we describe herein.Under the Supreme Court’s \/Barlow’s \/decision, the Secretary’s burden ofproof. in seeking this full-scope inspection warrant, was to establish\”administrative probable cause.\” This she could do by meeting either ofthe Court’s two alternative tests–the \”specific evidence test\” or the\”administrative plan test\”: \”For purposes of an administrative searchsuch as this, probable cause justifying the issuance of a warrant may bebased not only on specific evidence of an existing violation but also ona showing that … a specific business has been chosen for an OSHAsearch on the basis of a general administrative plan for the enforcementof the Act derived from neutral sources …… \/Barlow’s\/, 436 U.S. at320-21. Here, OSHA filed a hybrid warrant application that sought tojustify a full-scope inspection of project 8 under either or both of theCourt’s alternative tests.Specifically, the warrant application filed on May 9 relied upon threeprimary factors as the basis of OSHA’s probable cause showing:(1) The Section 8(f)(1) Inspection. In paragraph 2 of his affidavit, COWilkerson informed the magistrate of OSHA’s receipt of the employeerepresentative’s complaint on May 4, 1989, and the resultinginvestigation of that complaint, including the workplace inspection, onMay 4, 5, and 8, 1989. A summary of the complaint, \/see supra\/ notes 6& 7, was attached to the application as Exhibit A. Wilkerson averredthat OSHA’s complaint inspection had been required under the terms ofsection 8(f)(1) of the Act, 29 U.S.C. ? 657(f)(1), because OSHA haddetermined that: (1) \”[t]he complaint meets the requirements of Section8(f)(1) of the Act,\” (2) \”the complaint alleges serious conditions thatare Covered by 29 CFR 1926.201, 29 CFR 1926-202, Section 5(a)(1) of theAct and other parts,\” \/see supra \/note 8, and (3) \”there are reasonablegrounds to believe that such violations exist or have existed during thelast six months so as to require an inspection under Section 8(f)(1) ofthe Act.\”[[17]]Wilkerson also described the results of OSHA’s section 8(f)(1)inspection, as follows: The walkaround inspection, which included thehazards described in the complaint, has resulted in the identificationof an imminent danger safety hazard and the immediate abatement ofsame. The additional safety hazards observed thusfar have included:–improper use and storage of flammable gases,–failure to remove welding rods from cable clips,– inadequate protection of workers from moving vehicular traffic.Finally, Wilkerson Informed the magistrate of the refusal of Jurgensen,National, and Tri-State to permit the inspection \”to continue\” and ofthe demand of these three employers that OSHA obtain an administrativeinspection warrant.(2) _The Administrative Plan_. In paragraph 3 of his affidavits COWilkerson informed the magistrate of OSHA’s claim that its request for afull-scope administrative inspection warrant was being made pursuant to\”a general administrative plan for the enforcement of the Act derivedfrom neutral sources\” within the meaning of \/Barlow’s\/. Specifically,Wilkerson averred that \”[t]he desired construction worksite inspectionis also part of an inspection and investigation program designed toassure compliance with the Act, is authorized by Section 8(a) of theAct, and is based upon injury rates experienced within certaindesignated industries.\” The magistrate was notified that\”[c]onstruction industries . . . are designated high rate industries dueto their high injury and fatality rates\” and that OSHA’s request for afull-scope warrant was justified under the relevant provisions of itsadministrative plan, which were attached as Exhibits B and D of thewarrant application.In particular, Wilkerson based this claim on the following provisions ofthe administrative plan, as set forth in section IX A.9. of the FOM:9. _Scope of Inspection_. The scope of complaint inspections shall bedetermined in accordance with the guidelines given in this section….b. _Construction and Longshoring Inspections_. The inspection of acomplaint in the construction and Iongshoring industry shall normally hea comprehensive inspection unless a substantially complete inspection ofthe worksite has been conducted within the last quarter. In that casethe procedures in d. shall applyd. _Low-hazard Industry Complaint Inspections_. [A] complaintinspection in a low-hazard industry shall generally be limited toworkings conditions identified in the complaint. If, however, the CSHObelieves that the scope of the inspection should be expanded because ofinformation indicating the likelihood of serious hazards in otherportions of the plant…the supervisor shall be contacted. A decisionwill then be made on the basis of the information that is availablewhether the inspection is to he extended.[[18]]3. _Third-Party Consent_. In paragraph 2 of his affidavit, Wilkersoninformed the magistrate that OSHA had obtained third-party consent forthe desired inspection of project 8.[[19]] Specifically, Wilkersonaverred that representatives of ODOT and of the FHWA had given theirconsent to an inspection of the entire project. This consent wasobtained shortly after the representatives of Jurgensen, National, andTri-State refused, on May 8, to permit the inspection to continue in theabsence of a warrant. Wilkerson also implied that, due to federalfunding of project 8, the contractors on the project were all bound by acontractual provision that allowed OSHA to inspect the project forcompliance with OSHA regulations. Attached to the warrant applicationas Exhibit C was a copy of that contractual provision, which provided,as follows:When the United States Government pays all or any portion of the cost ofa project, the Federal laws and rules and regulations made pursuant tosuch laws must be observed by the Contractor, and the work shall besubject to the inspection of the appropriate Federal agency.2. \/National’s motion for a stay\/Also on May 9, 1989, National instituted its own action in the districtcourt by filing a Motion for Stay of Inspection. In this motion,National urged the court to \”stay\” OSHA from conducting an expanded,full-scope inspection of project 8. Both the Secretary’s warrantapplication and National’s motion for a stay were assigned to U.S.Magistrate Jack Sherman. Jr.In its memorandum supporting the motion, National corroborated COWilkerson’s statements that OSHA had received a complaint on May 4concerning the inadequacy of traffic control measures on Fort WashingtonWay and had sent inspectors to the worksite to investigate the complaintand inspect the work area. National further informed the magistratethat OSHA had \”substantially completed\” its complaint inspection, butthat it now plans to inspect the entire work zone, which consists of avery broad area of refurbishing construction, and to review mattersother than those involved in traffic control.\” The employer indicatedthat it had objected from the outset to the section 8(f)(1) complaintinspection and that it was now objecting to OSHA’s attempt to expand theinspection. National emphasized that it \”had no responsibility\”‘ forthe traffic control measures that were at issue in the complaint sincethe \”procedures\” were designed by the state, approved by the federalgovernment, and implemented by Jurgensen, the general contractor. Itacknowledged, however, that its employees were working behind thetraffic control devices that were the subject of the complaint.National also confirmed in its memorandum that \”the Federal governmentalong with the State of Ohio is funding this refurbishing work.\” Ittherefore implicitly acknowledged that it was bound by the above quotedcontractual provision that the Secretary attached to her warrantapplication. National contended, however, that OSHA was not the\”‘appropriate Federal agency\” to conduct inspections under thatprovision because \”Ohio inspectors\” were at the worksite \”on a dailybasis,\” at least in part for the purpose of reviewing safety matters. Thus, it concluded, the federal government was using the state of Ohioto enforce \”the appropriate safety standards\”.Finally, National corroborated Wilkerson’s averment that OSHA hadobtained third-party consent to the requested expanded inspection:[I]t appears that OSHA has attained the approval of the Federal HighwayAdministration . . and the State of Ohio for its inspectors to enter thework zone. In this regard, it is relying on the jurisdiction that theseagencies have over the actual highway as well as the contract whichsubjects the work to a federal inspection.However, National contended that \”this consent does not and cannotextend to conducting an inspection beyond that permitted under the plainsight rules.\” \/See supra\/ note 19. Therefore, in the event themagistrate did not issue the requested order prohibiting OSHA fromexpanding its inspection, the employer alternatively urged him to limitOSHA \”to a plain sight inspection\” of the remainder of project 8.3. \/The warrant\/The third key event that took place on May 9, 1989, was MagistrateSherman’s issuance of the full-scope administrative inspection warrantrequested by OSHA. The magistrate did not include any limitation on thescope of the authorized inspection, such as the \”plain sight\” limitationsought by National in its alternative argument. OSHA served the warrantthe next day, and the second phase of the OSHA inspection was thereforeconducted pursuant to the authority granted by the warrant.Beginning with the filing of her opposition to National’s motion for astay, \/see supra\/ note 18, the Secretary has consistently asserted thatMagistrate Sherman reviewed both her warrant application and National’sstay motion before issuing the challenged warrant. Nevertheless,despite several opportunities to dispute the Secretary’s claim, theRespondents have never taken issue with it. Neither has MagistrateSherman, although he also had the opportunity to challenge the accuracyof the Secretary’s statement. Under these circumstances, we accept asfact that the magistrate reviewed National’s stay motion and supportingmemorandum before issuing the challenged administrative inspection warrant.B. \/Judge’s Decision and Arguments of the Parties\/In their post-hearing brief, the Respondents argued before the ALJ thatOSHA had had no basis for even seeking a warrant to expand itsinspection beyond the matter raised and the area described in thesection 8(f)(1) complaint. In their view, OSHA’s inspection wascompleted when the CO determined on Monday, May 8, that the hazarddescribed in the complaint had been fully abated. The Respondents alsoemphasized that the complaint had been directed against Jurgensen andnot against either of them. Indeed. OSHA’s investigation had revealedthat National and Tri-State were not responsible for either designing orimplementing the traffic control plan that was at the heart of the problem.In his decision, the judge considered and rejected the Respondents’position. He implicitly concluded that the Secretary, in her warrantapplication, had established \”administrative probable cause\” for afull-scope inspection under either or both of the alternative tests setforth in \/Barlow’s\/ the \”specific evidence test\” and the \”administrativeplan test.\” Specifically, the judge found that \”[t]he warrantapplication herein was based not only on the plain view observation ofthe Compliance Officer of alleged violations … but [also] on adetailed explanation of the general inspection plan OSHA utilizes whichis based on neutral criteria.\” The judge concluded that \”there wasvalid reason for the issuance of the warrant, and [therefore] there isno basis for suppression of the evidence\” gathered under the warrant.On review, the Respondents restate the arguments that they made beforethe ALJ. In addition, they argue that there was \”no basis for citingTri-State for the conditions alleged in the complaint,\” as demonstratedby (1) the judge’s decision to vacate the only citation Issued as aresult of the section 8(f)(1) investigation, \/see supra \/note 12, and(2) CO Cannon’s opinion testimony that neither 29 C.F.R. ? 1926.201 nor29 C.F.R. ? 1926-202, see supra note 8, applied to the conditionsdescribed in that citation. [[20]] They further note that it was thegeneral contractor, and not the Respondents, who eventually abated thehazard described in the section 8(F)( 1) complaint.The Secretary on review argues that the judge was correct in concludingthat the warrant issued on May 9, 1989, was valid. She focuses,however, on a number of alternative arguments that assertedly make itunnecessary for us to rule on the validity of the warrant.[[21]]C. \/Analysis\/We conclude that the evidence gathered by OSHA during the second phaseof its inspection of project 8 was gathered pursuant to a validadministrative inspection warrant, specifically, the warrant issued byMagistrate Sherman on May 9, 1989. The warrant was valid because OSHA’swarrant application established administrative probable cause for afull-scope inspection under the \/Barlow’s\/ \”specific evidence test.\”As detailed in Part ll A of this decision, \/supra\/, the warrantapplication filed with the district court was a hybrid application; thatis, OSHA attempted to establish administrative probable cause for afull-scope inspection under either or both of the two alternative testsset forth in \/Barlow’s\/. Thus, the application provided the magistratewith \”specific evidence\” of violations discovered during the course ofthe section 8(f)(1) inspection. It also presented him with OSHA’s claimthat a full-scope inspection was authorized under a generaladministrative plan for enforcement of the Act, along with the factsthat OSHA relied upon in selecting project 8 for a full-scope inspectionunder the terms of that plan. In addition, CO Wilkerson informed themagistrate of other matters-such as the contractual provisionauthorizing inspections by \”appropriate\” federal authorities and OSHA’sobtaining of third-party consent to the expanded inspection–that wereclearly relevant to the issues pending before the magistrate, but thatdid not fall neatly into either of the two \/Barlow’s\/ tests.Because of the hybrid nature of this warrant application, we concludethat the cases now before are analogous to two other cases in whichfederal appellate courts have upheld full-scope administrativeinspection warrants that were issued in response to similar warrantapplications. \/In re Cerro Copper Prods\/., 752 F.2d 280 (7th Cir.1985); In re Inspection of Workplace (\/Carondelet Coke Corp.\/), 741 F.2d172 (8th Cir. 1984). In both \/Cerro Copper\/ and \/Carondelet Coke\/, theSecretary argued that a full-scope inspection was justified under theterms of a \”general administrative plan for the enforcement of the Actderived from neutral sources\” within the meaning of \/Barlow’s\/. However,in neither of these cases did the Secretary rely solely on heradministrative plan. Instead, in both \/Cerro Copper\/ and \/CarondeletCoke\/, the Secretary provided the magistrate with supplemental evidenceto strengthen her claim that a full-scope inspection should be authorized.Following the Secretary’s lead, the courts in both of these casesexamined the warrant applications under the \/Barlow’s\/ \”specificevidence test\” rather than the Court’s \”administrative plan test.\” Accordingly, the courts in both cases concluded that, \/under thespecific facts of the cases then before them,\/ a \”wall-to-wallinspection\” would not be unreasonable and therefore would not be inviolation of the Fourth Amendment. \/See Cerro Copper, \/752 F.2d at 283;\/Carondelet Coke\/, 741 F.2d at 177. Although the factors favoring afull-scope inspection in the cases now before us are different from thefactors that were considered by the Seventh and Eighth Circuits, wereach the same conclusion that those courts reached. We conclude that\/the combination of factors\/ set forth in the warrant application filedby OSHA on May 9, 1989, established administrative probable cause for afull-scope inspection under the \”specific evidence test.\”Chief among those factors, in our view, was the third-party consentgiven by the project administrator (ODOT) and the FHWA for a full-scopeinspection of project 8. This consent was particularly significant herebecause (1) the contractors were contractually obligated to comply withpertinent Federal laws, rules, and regulations, and (2) they hadcontractually subjected themselves to the possibility that theseobligations might be enforced, through workplace inspections, by \”theappropriate Federal agency.\” The third-party consent that was givenhere was given to OSHA, the federal agency with statutory authority toenforce workplace safety and health standards. In all likelihood, thiswas precisely the kind of inspection that was anticipated when thiscontractual provision was drafted and included in the governing contracts.In any event, as the Respondents themselves conceded in their argumentsbefore Magistrate Sherman, this third-party consent was sufficient, evenin the absence of the warrant or even in the absence of the contractualprovision, to authorize an OSHA inspection of all of the work areas inproject 8 that were in \”plain sight\” of the OSHA inspectors. On therecord created before us, we conclude that most of the inspectedworkplace (project 8) was in \”plain sight\” since the contractors wereperforming their work primarily, if not exclusively, on elevated bridgesand highways.Nevertheless. as the Secretary conceded in her arguments before themagistrate, a warrant was necessary because OSHA did not intend tolimit, and subsequently did not limit, her expanded inspection to aviewing of conditions that were in plain sight. For example, several ofthe contested citation items at issue in both Docket No. 89-2611 andDocket No. 89-2705 were based on information that CO Cannon obtained asthe result of his exhaustive examination of records and documents(\/e.g.\/, material safety data sheets) that were maintained by Nationaland Tri-State in their office trailer.OSHA therefore supplemented its showing of administrative probable causeby also establishing that a full-scope inspection was called for underthe provisions of a general administrative plan for the enforcement ofthe Act.[[22]] Indeed, as the Secretary pointed out to the magistrate,\/see supra\/ note 18, a full-scope inspection would have been justifiedeven if the Respondents had been part of a \”low-hazard industry.\” Underthe terms of the Secretary’s then-effective administrative plan, asection 8(f)(1) complaint inspection in a low-hazard industry could beexpanded to cover the entire worksite if the complaint inspection led to\”information indicating the likelihood of serious hazards in otherportions of the [workplace].\”Here, we conclude that OSHA’s three-day complaint inspection andinvestigation provided it with ample reason to believe that it waslikely to discover other serious hazards in other project 8 work areas. To begin with the investigating CO’s determined almost immediately thatthe section 8(f)(1) complaint was meritorious. Indeed, CO Cannonbelieved that the conditions described in the complaint and confirmed byhis inspection and investigation constituted not only a seriousviolation of section 5(a)(1) of the Act, but also an imminent danger tothe exposed employees. In addition, his investigation disclosed that theemployees had been repeatedly exposed to this imminent danger for a weekprior to OSHA’s arrival on the scene, despite the fact that the hazardwas recognized as such by everyone involved from the first day that itarose. Also, it took several more days after OSHA’s arrival beforeabatement was finally accomplished. Finally, although the work areainspected during the section 8(f)(1) investigation was relatively small,OSHA observed other serious hazards in addition to the imminent danger.Therefore, even if the section 8(f)(1) inspection had been conducted ina \”low-hazard industry,\” the limited inspection would have provided OSHAwith sufficient grounds to justify an expansion of the inspection to theentire workplace. Here, however, the inspection was not in a low-hazardindustry. Instead, the workplace was a large, multi-employerconstruction project. Accordingly, CO Wilkerson informed the magistratethat construction industries are \”high rate industries due to their highinjury and fatality rates\” and that OSHA’s then-effective administrativeplan provided that section 8(f)(1) inspections of such constructionworksites \”normally\” would be \”‘comprehensive\” or full-scope inspectionsof the entire worksite.In their arguments on review, the Respondents do not directly attack thesufficiency of the Secretary’s probable cause showing. Instead, theyargue that the Secretary acted in bad faith in seeking an expandedinspection and suggest that, if the magistrate had been given anaccurate description of OSHA’s section 8(f)(1) inspection, he would haveconcluded that no warrant at all was justified, let alone a warrantauthorizing a comprehensive inspection of the entire workplace.We disagree. The matters deemed critical by the Respondents do notundercut the Secretary’s showing of administrative probable cause for afull-scope inspection. For example, the Respondents emphasize that thehazard described in the employee representative’s complaint was fullyabated to OSHA’s satisfaction before OSHA went into the district courtto obtain an administrative inspection warrant. We conclude, however,that this fact is not as significant as the fact that it took over aweek–despite employee and union complaints, \”near miss\” incidents, andpressure from OSHA–to attain abatement of this imminent danger hazard.The Respondents also stress the issue of responsibility for the trafficcontrol hazard, including the question of who had the ability to abate. However, these matters were essentially irrelevant to the magistratein determining whether to grant OSHA’s request for authority to conducta full-scope inspection of project 8. The warrant sought and obtainedby OSHA in no way targeted National or Tri-State or any other particularcontractor working on the project. The relevant fact from the viewpointof OSHA in seeking the warrant and the magistrate in issuing the warrantwas the fact that workers were exposed to hazards that appeared to be inviolation of the Act, not the fact that any particular contractor orgovernmental entity was \”responsible\” for the exposure or for abatementof the hazard.[[23]]Finally, the Respondents point to the \”fact\”‘ that OSHA had \”no basisfor citing Tri-State for the conditions alleged in the complaint.\” Thisargument, however, misstates the record in several important respects. For example, the Respondents emphasize the \”concession\” of CO Cannonthat neither ? 1926.201 nor ? 1926.202 applied to the cited workingconditions, but they ignore the fact that the citation issued toTri-State did not allege a violation of either of these two standards.Instead, the citation issued following OSHA’s section 8(f)(1) inspectionand investigation alleged that Tri-State violated section 5(a)(1) of theAct. \/See supra\/ note 12. Thus, except for the allegation ofwillfulness, the Secretary’s \/original\/ charge was fully consistent withthe investigating compliance officer’s views of the case, \/i.e\/., thatTri-State’s employees were exposed to an imminent danger, that theseemployees were exposed to conditions in violation of the Act’s generalduty clause, and that ?? 1926.201 and 1926-202 were not applicable tothe conditions that he observed. Furthermore, the ALJ’s decision doesnot conflict with CO Cannon’s views. The judge expressed no opinion asthe validity of the Secretary’s original charge, holding only that theSecretary had failed to prove noncompliance with the specific provisionsof the two OSHA standards cited in her amended charge.Contrary to the arguments of the Respondents, OSHA had ample reason onMay 8 and 9, 1989, for seeking to expand the scope of its inspection,and it acted in good faith in applying for a full-scope administrativeinspection warrant. Since OSHA’s warrant application supplied themagistrate with administrative probable cause to support the issuance ofsuch a warrant under the \/Barlow’s\/ \”specific evidence test,\” thewarrant issued by Magistrate Sherman was valid, and the evidencegathered pursuant to that warrant cannot be suppressed on FourthAmendment grounds.Ill. THE CHALLENGE TO THE WILKERSON AFFIDAVITA. \/Background\/Tri-State and National raised their Fourth Amendment defense before theCommission when they filed their answers, in Docket Nos. 89-2611 and89-2705, respectively. After these cases were consolidated by order ofthe ALJ, on December 28, 1989, the Respondents sought to follow up ontheir defense by conducting discovery depositions of CO Cannon, AreaDirector Murphy, and CO Wilkerson. The Secretary consented to thetaking of the Cannon and Murphy depositions, but refused to allow thedeposition of CO Wilkerson. Thus, for example, in a February 8, 1990letter, the Secretary’s counsel responded to a request from theRespondents’ counsel, as follows:We will object to the taking of Mr. William J. Wilkerson’s depositionbecause his only involvement in the cases related to the application forthe warrant. An evidentiary hearing on a warrant can only be conductedunder \/Franks v. Delaware\/, 438 U.S. 154, 171-172 (1978), upon a\”substantial preliminary showing\” that the warrant application containsfalse statements that are made knowingly and intentionally, or made witha reckless disregard for the truth. Respondents have made no showingin the subject cases and are therefore not entitled to discovery or anevidentiary hearing on warrant issues.The reference in the Secretary’s letter is to the following passage fromthe decision of the United States Supreme Court in the \/Franks\/ case:There is, of course, a presumption of validity with respect to theaffidavit supporting the search warrant. To mandate an evidentiaryhearing, the challenger’s attack must be more than conclusory and mustbe supported by more than a mere desire to cross-examine. There must beallegations of deliberate falsehood or of reckless disregard for thetruth, and those allegations must be accompanied by an offer ofproof…Allegations of negligence or innocent mistake areinsufficient….Finally, if these requirements are met, and if, whenmaterial that is the subject of the alleged falsity or deliberatedisregard is set to one side, there remains sufficient content in thewarrant affidavit to support a finding of probable cause, no hearing isrequired.438 U.S. at 171.On March 13, 1990, the Respondents began taking the deposition of COCannon. (The two-day deposition was finished on May 15, 1990.) OnApril 10, 1990, the Respondent’s counsel again wrote to the Secretary’scounsel requesting an opportunity to take the deposition of COWilkerson. Citing the \/Franks \/case, the Respondents in effect assertedthat they were able to make the \”substantial preliminary showing\”required under that decision:From the information which has been developed during Mr. Cannon’sdeposition, it appears clear that the Warrant Application signed by Mr.Wilkinson (sic) contained false statements in a number of importantrespects. Accordingly, National Engineering and Tri-State are entitledto probe the basis for his statements in that application.When the Secretary again refused to consent to the deposition, theRespondents filed a motion with the ALJ to compel this discovery. Following through on their stated intention, the Respondents based theirpreliminary showing under\/Franks\/ on alleged inconsistencies between COCannon’s deposition testimony and the statements of CO Wilkerson in hiswarrant application affidavit. The Secretary opposed the motion,arguing that the Respondents had not met their burden under \/Franks\/.On July 13, 1990, the judge issued his order denying the Respondents’motion to take the deposition of CO Wilkerson. He held that theRespondents had not met their burden of proof under \/Franks\/ because\”[n]o substantial preliminary showing was made that a false statementwas intentionally or recklessly made by Wilkerson and that such falsestatement was necessary to the finding of probable cause.\”B. \/Analysis\/We conclude that the judge correctly decided this issue. Under\/Franks, \/the Respondents had the burden of proving that the warrantaffidavit included (1) false statements (2) that were knowingly orintentionally made or made with reckless disregard for the truth and (3)that were necessary to the magistrate’s finding of administrativeprobable cause. For the reasons that follow, we hold that none of thestatements by Wilkerson that the Respondents have challenged meet allthree of these tests. We therefore agree with the judge that theRespondents failed to make the \”‘substantial preliminary showing\” thatwould have entitled them to conduct discovery into the underlying basis,the accuracy, or the completeness of the warrant affidavit.The first challenged statement in the warrant affidavit relates to theevents of May 4, 1989, the first day of OSHA’s section 8(f)(1)inspection: \”After conducting an opening conference with the generalcontractor on the project the formal walkaround commenced.\” TheRespondents assert that this statement is \”untrue\” because \”[t]heopening conference did not occur until Monday, May 8, 1989, and thewalkaround inspection did not occur until the following day, Tuesday,May 9, 1989.\”The discrepancy in the dates is easily explained by pointing out thatthe inspection at issue occurred in two phases: the warrantless firstphase that was limited to the area described in the section 8(f)(1)complaint and the expanded second phase that was conducted pursuant tothe warrant and that included all of project 8. Wilkerson’s statement inthe affidavit refers to the first phase of the inspection, while theRespondents’ assertions relate. albeit inaccurately, to the secondphase.[[24]]However, even after this confusion is cleared up, it is still evident,as the Secretary has conceded, that the challenged statement in thewarrant is inaccurate. While CO Cannon met with representatives of thegeneral contractor on May 4–both at the work area described in thesection 8(f)(1) complaint and in Jurgensen’s office trailer after heleft the work area–his abbreviated opening conference was withrepresentatives of National and Tri-State rather than representatives ofJurgensen. Moreover, it is probably stretching the facts to describethe events of May 4 as a \”formal walkaround.\” See Part 1A, \/supra.\/Nevertheless, we agree with the Secretary that the inaccuracies in thisquoted affidavit statement are more likely the result of confusion overwhich employer was involved in the section 8(f)(1) complaint than anindication of a deliberate attempt to present false evidence or of areckless disregard for the truth. The employee representative’scomplaint was directed against Jurgensen, the general contractor. However, when the CO’s arrived, they discovered that only employees ofTri-State were exposed to the imminent danger hazard described in thecomplaint. It was for this reason that the abbreviated openingconference was held with representatives of Tri-State and Nationalrather than representatives of Jurgensen.In any event, even if we were to conclude that the misstatement wasdeliberate, we have no difficulty in further concluding that itdoes\/not\/ meet the third part of the \/Franks\/ test, \/i.e\/., it was not astatement that was necessary to the magistrate’s determination ofadministrative probable cause. On the contrary, as we noted previously,the question of which employer was responsible for the hazardousconditions described in the employee representative’s complaint wasessentially irrelevant to the magistrate’s determination ofadministrative probable cause because the Secretary was seekingauthorization for an inspection that would cover all contractors workingon project 8, without regard to their responsibility for the imminentdanger hazard. It therefore follows that such matters as whichcontractors OSHA held its opening conference with and when it began itsformal walkaround inspection were equally irrelevant to the magistrate.The second challenged statement in the warrant affidavit is thestatement we have quoted in Part IIA1 of this decision, \/supra\/,concerning the hazards observed by OSHA during its limited section8(f)(1) inspection. Part of the Respondents’ reasoning can be easilydismissed since the argument makes no sense. The Respondents claimthat CO Cannon’s deposition testimony establishes that he did notobserve the \”additional safety hazards\” referred to in the warrantaffidavit–\”improper use and storage of flammable gases, failure toremove welding rods from welding cable clips, [and] inadequateprotection of workers from moving vehicular traffic\”—during the firstphase of the inspection, as alleged in the affidavit. Rather, theseconditions were not observed until the second phase of theInspection.[[25]] However, the Respondents offer no explanation as tohow the warrant affidavit, which was filed on May 9, 1989, could haveincluded a description of conditions that were not observed until thesecond phase of the inspection, which began on May 10. This matter iscleared up by a closer reading of the deposition testimony that theRespondents rely upon. That testimony does not relate at all to thehazards described in the warrant affidavit, but rather to the hazardsdescribed in certain contested citation items that were based on theCO’s observations during the second phase of the inspection.The more serious charge by the Respondents concerning the challengedstatement is the claim that the magistrate was misled by materialomissions from the affidavit, specifically, Wilkerson alleged failure toInform the magistrate \”that the condition for which [OSHA] was summonedto the worksite had already been completely examined [and abated] andthat it now wished to expand its inspection beyond the contours of thatmatter.\” At the outset, we find that there was no intent on Wilkerson’spart to deceive the magistrate on these matters. Thus the affidavitforthrightly stated that \”[t]he walkaround inspection, which includedthe hazards described in the complaint, has resulted in theidentification of an imminent danger safety hazard \/and the immediateabatement of same\” \/(emphasis added). It is unfortunate that theaffidavit was not more clear in apprising the magistrate that the hazarddescribed in the complaint and the imminent danger situation observed bythe CO were the same hazard. But the inclusion of the above-quotedstatement in the affidavit precludes us from finding any intentionalmisrepresentation or reckless disregard for the truth on the part ofWilkerson. Similarly, while the affidavit might have been more clear ininforming the magistrate that the inspection of the area described inthe employee representative’s complaint had basically been completed andthat OSHA’s intent was therefore to seek a geographic expansion of itsinspection, we cannot conclude that the affidavit was misleading withrespect to these matters. On the contrary, the most logical inferenceto be drawn from the information that was provided to the magistrate wasthat OSHA was seeking to expand its inspection because it had alreadycompleted its 8(f)(1) investigation.In any event, whatever deficiencies there may have been in theSecretary’s warrant application were more than adequately compensatedfor in National’s motion for stay of the inspection. As we havedetailed in Part IIA2 of this decision, \/supra,\/ National’s motion fullyinformed the magistrate of all those matters it emphasizes in itsarguments before us–the completion of the section 8(f)(1) inspectionabatement of the hazard described in the complaint, and the Secretary’sintent to expand the scope of the inspection. Since the magistrate readand considered National’s motion before issuing the warrant in question,we cannot conclude that the alleged omissions in the warrant applicationhad any effect on his determination of administrative probable cause.The Respondents’ next argument borders on the frivolous. Theychallenge Wilkerson’s statement that CO Cannon returned to the FortWashington Way work area on May 5 and 8, 1989, \”to continue [his]walkaround.\” On this record, it is undisputed that Cannon did return tothis work area on both May 5 and May 8 to continue his investigation ofthe section 8(f)(1) complaint and as part of his ongoing effort toobtain abatement of the hazard. Whether or not these worksite visitswere technically part of the CO’s \”walkaround\” was totally irrelevant tothe magistrate’s determination of administrative probable cause.The Respondent’s next challenge is more substantive, although weconclude it also is without merit. The Respondents attack Wilkerson’sstatement that CO Cannon was \”informed on May 8th by representativesof… [Jurgensen, National and Tri-State] that the inspection would notbe permitted to continue and an inspection warrant would be required.\” At the outset, we observe that this challenged statement is a truestatement. Nevertheless, the Respondents correctly point out that, whentaken in context, the statement could be construed as a false claim thatthe objections raised on May 8 were the first objectors to the OSHAinspection. The affidavit makes no mention of prior objections,although the record establishes that the Respondents’ counsel haddemanded a warrant on May 4, approximately an hour after OSHA firstarrived at the worksite.Here again, however, we cannot conclude that the magistrate’sdetermination of administrative probable cause was affected by theomission of this information from the warrant affidavit. National’smotion, which was considered by the magistrate before he issued thewarrant clearly informed him that National had objected to the limitedsection 8(f)(1) inspection as well as to OSHA’s attempt to expand theinspection beyond the limits of the area described in the employeerepresentative’s complaint.Finally, the Respondents challenge the statement in Wilkerson’saffidavit concerning OSHA’s determination that the employeerepresentative’s complaint described conditions in violation of the Act.See \/supra \/note 8. The Respondents challenge this statement on thebasis of CO Cannon’s deposition testimony that, in his opinion, theconditions he observed at the workplace were not in violation of either29 C.F.R. ? 1926,201 or 29 C.F.R. ? 1926.202 because neither of thosestandards applied.This challenge also fails to meet the \/Franks\/ test. Indeed, theRespondents have failed to make the threshold showing that the statementis false. They ignore the fact that the statement is expressed asWilkerson’s personal opinion: \”I\/n my opinion as an experienced safetyand health investigator\/ the complaint alleges serious conditions thatare covered by 29 CFR 1926.201, 29 CFR 1926.202, Section 5(a)(1) of theAct and other parts\” (emphases added). Such a statement cannot becontradicted by CO Cannon’s testimony as to his personal opinion, whichmay have been different from Wilkerson’s. At moist, therefore, theRespondents have shown a difference of opinion between two OSHAcompliance officers over the applicability of two OSHA standards.[[26]]For the reasons stated above, we conclude that none of the statements inWilkerson’s affidavit that have been challenged by the Respondents meetsthe three-part test we set forth above: (1) a false statement (2) thatwas knowingly or intentionally made or made with reckless disregard forthe truth and (3) that was necessary to the magistrate’s finding ofadministrative probable cause. We therefore affirm the judge’s rulingdenying the Respondents motion to take the deposition of CO Wilkerson onthe ground that the Respondents failed to make the \”substantialpreliminary showing\” required under \/Franks v. Delaware\/.IV. THE ALLEGED VIOLATION OF 29 C.F.R. ? 1926.500(d)(1)The final issue before us on review concerns the merits of a contestedcitation item in Docket No. 89-2705. Citation no. 1, Item 9, in thatcase alleges that the Respondent National violated 29 C.F.R. ?l926-500(d)(1) at three separate locations, within the scope of project8. In his decision, the ALJ affirmed this item as a serious, violationof the Act and assessed a penalty of $350. However, for the reasonsstated herein, we conclude that the cited standard does not apply to thecited conditions. We therefore reverse the judge and vacate thecitation item.The three incidents identified in the record as the basis of thisalleged violation each involved employees of National who were workingnear the edges of bridges or ramps that were used as interchangesbetween interstate highways. In each instance, the employees wereworking within a few feet of the edge of the bridge. Only a 20- to29-inch-high concrete wall or \”parapet\” stood between the employees anda fall of 15 or 20 feet to the city streets below. Also in eachinstance, the work being performed by the employees related to the\”recontouring\” of the parapet walls.Prior to National’s arrival at the worksite, the bridges or ramps inquestion had protective barriers on each side of them. These barriersconsisted of an 8-inch-high sidewalk or curb, which was adjacent to a21-inch-high parapet wall, which in turn was topped by a 12-inch-highpipe railing. (Thus, the railing was 41 inches above the surface of theroadway). Part of National’s responsibility under its contract withJurgensen was to reconstruct these protective barriers. This involvedremoval of the pipe railing, removal of the sidewalk or curb, andfinally building up the concrete wall to a height of 42 inches. The\”old\” parapet was not destroyed in this process, but rather remained inplace as a protective barrier throughout.At the time of the alleged violation, the pipe railing had been removedin each of the cited locations, and the sidewalk or curb had beenpartially removed. Thus, depending on whether an employee was standingon the roadway or on the sidewalk\/curb, he or she was working next to aconcrete parapet that was either 29 or 21 inches high. In one instance,an employee was actually standing on the parapet wall drilling holesinto it (apparently for reinforcing bars, in preparation for the pouringof concrete). However, that employee was protected by a safety belt. None of the other employees observed by the CO was similarly protected.The cited standard is contained in Subpart M–Floor and Wall Openings,of Part 1926. It provides, as follows:?*1926.500 Guardrails, handrails, and covers.*(d) \/Guarding of open-sided floors, platforms, and runways\/. (1)Every open-sided floor or platform 6 feet or more above adjacent flooror ground level shall be guarded by a standard railing or theequivalent, as specified in paragraph (f)(1)(i) of this section, on allopen sides, except where there is entrance to a ramp, stairway, or fixedladder. The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials couldcreate a hazard.In his testimony concerning item 9, CO Cannon suggested two possiblemeans of eliminating the cited fall hazard. First, he pointed out adevice shown in one of the photographic exhibits. The device, whichappears to be a sheet of plywood attached to the parapet wall, has theeffect of extending the parapet wall to a height well above theemployees’ head level. Cannon identified the purpose of the device asthe prevention of chips falling over the edge of the bridge onto thecity streets below. However, he claimed that it could also serve thesame function as a guardrail in protecting workers against falls. TheCO’s other suggested abatement method was the use of safety belts andlifelines. He did not even suggest, however, that standard guardrailsor their equivalent–the method of abatement specified in the citedstandard–could have been used to protect the employees at issue.On review, National presents two arguments against the judge’s decisionto affirm this citation item:First, the standard itself is not applicable to this situation. Theinterstate highway, with its existing parapet wall, was not anopen-sided floor or platform….Alternatively, even were this work areaconsidered an open-sided floor or platform, the existing and,thereafter, reconstituted concrete parapet wall served the purpose of anequivalent guard to prevent a fall hazard…. [Since] the purpose of thestandard was met …. this citation should have have vacated.Because we agree with the first of these two arguments, we find itunnecessary to reach the second.Specifically, we agree with National that the paved interstate highwayramps or bridges with 29-inch-high concrete parapet walls on each sideof them were not \”open-sided floors\” within the meaning of the citedstandard. We therefore vacate citation no. 1. item 9 on the ground thatthe cited standard does not apply to the cited working conditions. Inso ruling, we rely upon the plain meaning of the standard’s terms.In other cases arising under this same standard, federal appellatecourts have reminded the Commission of our responsibility to interpretand apply OSHA standards in accordance with the plain meaning of theirterms. In particular, in those cases, the courts held that it was errorfor the Commission to apply section 1926.500(d)(1) to open-sided roofsbecause a roof is not a \”floor.\” \/Diamond Roofing Co. v. OSHRC\/, 528F.2d 645 (5th Cir. 1976); \/Langer Roofing & Sheet Metal, Inc. v.Secretary\/, 524 F.2d 1337 (7th Cir. 1975). Applying this same reasoningin the case now before us, we conclude that a paved interstate highwaywith concrete parapet walls on each side of it similarly cannot becharacterized as an \”open-sided floor.\”The Secretary responds to this reasoning by pointing to the Commission’sdecision in Pace Constr. Corp., 14 BNA OSHC 2216,1991 CCH OSHD ? 29,333(No. 86-758.1991). In that case, we concluded that employees working ona balcony of a multi-storied building that was still under constructionwere working on an \”open-sided floor\” within the meaning of ?1926.500(d)(1), the same standard that is at issue here. In reachingthis conclusion, we relied upon dictionary definitions that specificallyincluded the \”floor of a bridge\” within the meaning of the term\”floor.\” \/Id\/., 14 BNA OSHC at 2222, 1991 CCH OSHD at p. 39,431. Wedid not intend to suggest, however, that the term \”floor\”‘ as used in ?1926-500(d)(1) includes the surface of a bridge that is covered by apaved interstate highway. Nor is it likely that the sources we reliedupon intended such a result. In any event, even if we could get overthis hurdle to acceptance of the Secretary’s position, we could notconclude that the roadways at issue were \”open-sided\” within the meaningof the standard.The Secretary would have us disregard the fact that the workers inquestion were at all times working next to concrete walls that wereeither 29 or 21 inches above the surfaces on which they were standing. She seeks to draw an analogy between this situation and other cases inwhich the Commission held in effect that a trenching contractor couldnot escape coverage under the then-effective trenching regulations byimproperly sloping a trench: \”[The argument that the working surfaces atissue were not ‘open-sided’ because they were bordered by parapet walls]makes no more sense than the argument, consistently rejected by theCommission, that under the former trenching standard, a trench’s widthwas measured at its top, the result being that as a trench was slopedback to comply with the standard, it would likely become wider than deepand thus cease being subject to that standard.\”This analogy is not persuasive. The situation before us is not one inwhich an employer has installed an inadequate, 29-inch-high barrier andthen attempted to argue that the Secretary cannot cite ? 1926.500(d)(1)because the \”floor\” is no longer \”open-sided.\” Instead, when Nationalarrived at the worksite, it found a fully-completed section ofinterstate highway, next to which a sidewalk or curb with adjacentparapet and guardrails had been installed. National’s contractualresponsibility included \”rehabilitating\”‘ this old barrier so that, inits \”recontoured\” form, the concrete wall itself would be 42 inches highand the old pipe railing guardrails would no longer be necessary.As indicated, OSHA has not even attempted to establish that Nationalcould have protected its employees during this construction process byputting up, on the sides of the bridges, \”a standard railing or theequivalent\” within the meaning of ? 1926.500(d)(1). Instead, it hasrelied solely on other possible measures that might have been taken toprotect the employees. In our view, this failure to even mention theinstallation of standard guardrails as an abatement method providesfurther support for National’s contention, and our conclusion, that theSecretary is attempting to enforce this standard in a situation it wasnever intended or designed to cover. \/Cf. Spancrete Northeast, Inc. v.OSHRC,\/ 905 F.2d 589 (2d Cir. 1990) (court concludes ALJ erred inaffirming alleged violation of ? 1926. 900(d)(1) based on employer’sfailure to provide safety belts).V. ORDERFor the reasons stated, we affirm the judge’s rulings on the FourthAmendment issues that are before us. Specifically, we affirm hisrejection of the Respondents’ Fourth Amendment defense on the groundthat neither the warrantless first phase of the OSHA inspection nor theexpanded second phase, which was conducted pursuant to a valid warrant,violated the Respondents’ Fourth Amendment rights. We also affirm thejudge’s denial of the Respondents’ motion to take the deposition of COWilkerson. We reverse, however, the judge’s conclusion that theRespondent National violated 29 C.F.R. ? 1926.500(d)(1). We vacatecitation No. 1. item 9, in Docket No. 89-2705.Edwin G. Foulke, Jr.ChairmanDonald G.WisemanCommissionerVelma MontoyaCommissionerDated: September 30, 1992————————————————————————SECRETARY OF LABORComplainant,v.TRI-STATE STEEL CONSTRUCTION INC.ANDNATIONAL ENGINEERING AND CONTRACTING, CO.Respondent.Docket No 89-2611 & 89-2705(Consolidated)APPEARANCES: JANICE L. THOMPSON, ESQUIREU.S. Department of LaborCleveland, OhioFor the Complainant,KENT W. SEIFRIED, ESQUIREHolbrook & PostonCincinnati, OhioFor the Respondent._DECISION AND ORDER_SOMMER, JUDGE:This proceeding arises under the Occupational Safety and Health Act of1970 (29 U.S.C. Section 651 _et seq_., hereafter called the \”Act\”). Respondents Tri-State Steel Corporation, Inc. (Tri-State), and NationalEngineering & Contracting Company (National), were engaged in bridgereconstruction work let by the Ohio Department of Transportation onInterstates 74 and 75 and Fort Washington Way in Cincinnati, Ohio. These cases were docketed under Commission Docket Nos. 89-2611(Tri-State) and 89-2705 (National). The two cases were consolidated forpurposes of trial. Hearings were held in Cincinnati, Ohio, from August14-16, 1990. Both parties were represented by counsel who filedpost-hearing briefs.Tri-State was issued a serious citation containing six items and awillful citation containing one item. Prior to the hearing theSecretary amended the willful violation, 3(a)(1), to a serious violationand alleged a violation of 29 C.F.R. ? 1926.201(a)(1) or in thealternative 29 C.F.R. ? 1926.202. Item two of the serious citation wasamended at the hearing to allege a violation of 29 C.F.R. ? 1926.59(f)(5) (ii) instead of 29 C.F.R. ? 1200(f)(5)(ii).National was issued a serious citation containing ten items, a willfulcitation containing one item, and an \”other than serious\” citationcontaining one item. Prior to the hearing the Secretary amended thewillful violation, 5(a) (1), in citation no. 2 to a serious violation of29 C.F.R. 201(a) (1) or, in the alternative 29 C.F.R. ? 1926.202. Inboth the National and Tri-State cases the penalties for the violationamended from willful to serious were reduced from $9,000 to $1,000. Atthe hearing, the Secretary amended National citation No. 1 bywithdrawing item 4(a), and by modifying item 8 from a violation of 29C.F.R. ? 1926.152(d)(2) to a violation of 29 C.F.R. ? 1926.152(g) (11)._BACKGROUND_Respondent’s National Engineering & Contracting Company and Tri-StateSteel Construction, Inc. are Ohio Corporations engaged in theconstruction business. Tri- State is a subsidiary of National. BothRespondents were subcontractors engaged in bridge reconstruction work onFt. Washington Way in downtown Cincinnati. The John R. JurgensenCompany was the prime contractor on this job which was let by theDepartment of Transportation of the State of Ohio (ODOT). Pursuant to acomplaint filed (with the Cincinnati area office of OSHA), alleginghazardous conditions arising from vehicular traffic, Complaince OfficerCannon proceeded to the worksite on May 4, 1989, to make an inspection. His presence without a warrant was objected to by Respondent. DuringMay 1989, he spent some time in this area observing traffic conditions.On May , 1989, OSHA obtained a warrant for inspection of the entireworking area. As a result of the inspection, both National andTri-State were issued serious citations which are involved here (oneother than serious citation with no penalty was issued againstNational). A serious violation exits when \”there is a substantialprobability that death or serious physical harm could result\” from theviolation. 29 U.S.C. ? 666(k)(1982)._VALIDITY OF THE INSPECTION – VALIDITY OF WARRANT OBTAINED – SUPPRESSIONOF EVIDENCE_Respondents National and Tri-State were subcontractors on a bridgereconstruction job located in downtown Cincinnati. In response to acomplaint that there was a hazard present due to traffic passing throughthe work area located on Compliance Officer Cannon went to the inspectthe premises. Ironworkers were working on the bridge and barrels hadbeen placed on the roadway to separate the work area from the travelzone. The Compliance Officer parked his vehicle behind the barrels andidentified himself to Respondent’s supervisory personnel and stated thepurpose of his visit. There was an objection made to his inspectionwithout a warrant, but he proceeded stating none was needed on a publicroad. His inspection resulted in the issuance of a citation to bothparties alleging a violation of 29 C.F.R. ?? 1926.201 (a) and 202. (Signaling and Barricades). Respondents contend the evidence from thisinspection should be suppressed since a warrantless, nonconsensualinspection was made relying on _Marshall v. Barlow’s, Inc._, 436 U.S.307 (1978). This reliance to misplaced.Firstly, the area inspected was a public highway, being traveledthroughout the inspection. Merely placing barrels on a part of thehighway to direct the traffic and separate the workmen from thevehicular activity did not change the nature of the public trafficartery. The observations of the Compliance Officer of conditions whichexisted were in plain view of all who drove through the area; theobservations he made on the highway after parking his vehicle which werein plain view of all was not a constitutional violation. _SeeStephenson Enter, Inc., v. Marshall_, 578 F.2d 1021 (5th Cir. 1978);Moreover, there was no \” expectation of privacy\” in the highway activitybeing observed. U.S. v. 448, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). Accordingly, the actions of the Compliance officer were proper enter thecircumstances presented, and there was no fourth amendment violation.The Respondent further contends that there was no basis for the warrantwhich allowed the compliance officer to inspect other areas of the worksite. _Marshall v. Barlow’s, Inc_., 436 U.S.307, 98 S.Ct. 1816, 56L.Ed. 2d 305, 6 BNA OSHC 1571 (1978) held that safety and healthinspections by OSHA must be conducted pursuant to a warrant to complywith the probable cause requirement of the Fourth Amendment.\”Probable cause will be found to support an OSHA warrant if the warrantapplication supports a reasonable belief or leads to a reasonablesuspicion that the OSH Act or its regulations have been violated. \” _See Secretary.of Labor v. Midwest Instruments Co._, 14 BNA 1569, 15571(No 89-2019.1990).The warrant application herein was based not only on the plain viewobservation of the Compliance officer of alleged violations, see_Stephenson Enterprises, Inc. v. Marshall_, supra., but on a detailedexplanation of the general inspection plan OSHA utilizes which is basedon neutral criteria. See I, 1_n Re Establishment inspection of TrinityIndustries, Inc._ 14 BNA OSHC 1531 (Nos. 89-1113, 99-1389, 89-1494, 1990).Accordingly, it is concluded there was valid reason for the issuance ofthe warrant, and there is no basis for suppression of the evidence._Docket No. 89-2611 – Tri-State Steel Construction, Inc. Citation No. 1,Item (a) alleges_:29 C.F.R. ? 1926.59 (e) (1): Employer had not developed or implemented awritten hazard communication program which at least describes how thecriteria in 29 C.F.R. ? 1910.1200(f), (g) and (h) will be met:(a) There was no written hazard communication program available at thetime of inspection.Section 1926.59(e)(1) provides:(e) _Written hazard communication program_. (1) Employers shall develop,implement, and maintain at the workplace, a written hazard communicationprogram for their workplaces which at least describes how the criteriaspecified in paragraphs (f), (g), and (h) of this section for labels andother forms of warning, material safety data sheets, and employeeinformation and training will be met …_Citation No. 1, Item (b) alleges:_The written hazard communication program did not include a complete listof the hazardous chemicals known to be present using an identity that Isreferenced on the appropriate material safety date shoot (the list maybe compiled for the workplace as a whole or for individual work areas):(a) There was no list of hazardous chemicals on site at the time of theinspection for such materials as Atom Arc and Arcair welding electrode.The standard at issue, 29 C.F.R. ? 1926.59 requires employers to\”develop, implement and maintain\” a written hazard communication programwhich describes the employer’s methodology for labels and other warningconcerning hazardous materials; providing material safety data sheets,and the training of employees.Cannon, the Compliance Officer testified that he found no written hazardcommunication program in effect solely for Tri-State. National did havesuch a program in use. (T-212) However, the evidence demonstrates thatTri-State is a subsidiary of National and both use the same program.Cannon admitted both companies have the same safety and loss controlofficer, use the same trailer where the hazard program was situated, andshare the same supervisory personnel. (T-439) He did not cite Nationalfor violating 59 (e)(1) stating \”what National Engineering had in theirtrailer was sufficient. . .\” (T- 443) The evidence is persuasive thatboth shared the same program – granted that National did not violate thestandard at issue, neither did Tri-Steel. The Secretary has notsustained her burden of proof as to a violation of 59(e)(1). Theviolation is vacated.The Secretary alleges that Tri-State violated 29 C.F.R. ?1926.59(e)(1)(i) by failing to have a list of the hazardous chemicalsknown to be present at the worksite; i.e. Atom Arc and Arcair weldingelectrodes.The standard requires that \”a list of hazardous chemicals . . . .referenced on the appropriate MSDS\” be present. Cannon specificallyexamined the MSDS sheets and photographed them. He did not see Atom Arcand Arcair Welding electrodes therein. While Respondent alleges anotherwelding rod was listed, this does not meet with the standardrequirements. These specific rods were not listed and thusly employeeschecking the MSDS could not determine their physical and health hazards.Cannon testified the hazard associated with welding rod use was nausea,pulmonary dysfunction, etc. (T-456-7)Respondent knew there was no MSDS for these specific products. On therecord, Tri-state was in violation of ?1926.59(e) (1) (i). A penalty of$200 is appropriate herein._Item 2, Alleged Violation of 29 C.F. R. ? 1926.59 (f) (5) (ii) _Citation No. 1, Item 2 (a) & (b) alleges: 29 C.F.R. ?1926.59(f)(5)(ii): The employer did not ensure that each container ofhazardous chemicals in the workplace is labeled, tagged or markedspecifying the appropriate hazard warning:(a) Westbound Ft. Washington Way at split of north and southbound I-75ramps. Equipment: Arcair copper clad electrodes. Condition: The Arcairelectrodes were not provided with a hazard warning label to indicate thehealth effects of the materials contained therein.(b) Location: Westbound Ft. Washington Way at split of north andsouthbound I-75 ramps. Equipment: Atom arc electrodes. Condition: Therewas no hazard warning label on the Atom arc electrodes to indicate thehealth effects of the materials contained therein.Section 1926.59(f)(5)(ii) provides (5) … the employer shall ensurethat each container of hazardous chemicals in the workplace is labeled,tagged or marked with the following information:(ii) Appropriate hazard warnings.The labels to apprise employees exposed to the chemical hazards of \”boththe change in body function and the signs and symptoms that may occur tosignal that change.\”The Secretary has interpreted this requirement to require that the labelspell out the target organs affected by the hazards present. Thisinterpretation is strengthened by the inclusion in Append A to ? 1926.59at paragraph 7 of target organ effects which may occur from exposure tohazardous chemical exposures. The Secretary’s interpretation of thestandard is controlling, if it is reasonable. _GAF Corp. v. OSHRC,_561 F.2d 913, 915 (D.C. Cir. 1977). The purpose of the standard is toprotect employees from serious risks of health damage posed by hazardouschemicals which insidiously cause bodily damage.The Secretary has reasonably determined there is a need for employees toknow of the hazards associated with chemical exposures in the workplaceand be on guard with sufficient knowledge where possible. Section 59(d) (2) states that Appendix A shall be consulted for the scope ofhealth hazards covered. Under Section 59 (c) where health hazard isdefined, reference is also made to further exploring Appendix A indefining chemical health hazards. In short, the Respondent was onnotice by the hazard communication standards that labeling ofdeleterious chemicals must specifically call the attention of employeesto the bodily target organs which may be effected by toxic,carcinogenic, corrosive, etc. chemicals (See Appendix A to ? 1926.59).Mere words of caution on a label, or warnings that are general in naturedo not suffice. Since the label serves as the advance notice to anemployee of information designating the health hazard of working withcertain chemicals, employees exposed to such hazards must be informed ofthe specific target organs which may be affected.The Respondent knew or should have known that this specific informationmust be made available on the labels of hazardous chemical substances. It has a hazard communication program which made it so aware.In the instant case the fume and gas decomposition chemical productsformed could cause damage to the lungs, and may act on the blood orhematopoietic system (See C-35 MSDS Atom Arc Rods Section II, V) . Thelabels did not provide the \”appropriate hazard warnings\” as required.Accordingly, the citation alleging a violation of 29 C.F.R. ? 1926.59(f)(5)(ii) is affirmed.Consistent with the criteria set forth in Section 17(J) of the Act, apenalty of $200 is appropriate herein._Item 3, Alleged Violation of 29 C.P.R. ? 1926.39(g)(1)_The Secretary alleges that Tri-State violated 29 C.F.R. ? 1926.59(g) (1)by failing to have an MSDS for Arcair Electrodes and Atom Arc Weldingrods type 7018.The Respondent argues that it had an MSDS for All-State Welding Rodswhich although from a different manufacturer do list the hazardspresent, and is applicable to the rods used herein.This argument cannot be supported herein. Firstly, the HazardCommunication Standard specifically requires at 59(g) (1) that there be\”a material, safety data sheet for each hazardous chemical.\” This is sothat workers may be provided with full information on every chemicalthey work with, apprised of the hazards concomitant thereto so that theycan use caution and have knowledge where there is exposure. Undoubtedly, where they are working with different name products, thepresence of an MSDS for _each_ product will facilitate for suchemployees the use of the MSDS provided. Furthermore there is noevidence that the All-State Welding Rods were similar in all respects toArchair or Atom Arc Rods and presented the same chemical hazards. Theevidence supports a finding that the Respondent violated 29 C.F.R. ?1926.59(g)(1). Consistent with the criteria set forth in 17(J) of theAct, a penalty of $200 is appropriate._Item 4, Alleged Violation of 29 C.F.R. ? 1926.59(h)_The Secretary alleges that Respondent violated 29 C.F.R ? 1926.59(h) inthat employees were not provided with information and training onhazardous chemicals in their work area at the time of their initialassignment, and whenever a new hazard entered their work area.The record establishes that while supervisory employees were givenhazard communication training sometime in 1988 & 1989, employees did notgot training until May 11, 1989. Prior thereto,there were no officialtraining sessions on chemical hazards in the workplace. TheRespondent’s argument that giving employees packets of materials, etc.concerning safety qualifies as training under the standard is withoutmerit. Training[[1]] in its ordinary under-stood usage means \” tocoach in or accustom to some mode of behavior or performance, to makeproficient with specialized instruction and practice.\” No such courseof procedure was followed here. The violation has been established. Apenalty of $200 is considered appropriate._Item 5, Alleged Violation of 29 C.F.R ? 1926.100(a)_Tri-State was cited for violation of 29 C.F.R. 100(a) for failing toassure that employees exposed to possible danger of head injury wearprotective helmets.Section 1926.100(a) requires that employees \”be protected\” by the use ofhelmets \”where there is a possible danger of head injury from impact, orfrom falling or flying objects…\” _See Franklin R. Lacy (Aqua ViewApartments)_, 81 OSAMRC 7\/A2, 9 BNA OSMC 1253, 1254, 1981 CCM OSMD ?25,170, p. 31,073 (No. 3701, 1981).The Compliance Officer testified that an employee was standing under anoverpass on Route 1-75 without wearing a hard hat and was subject tobeing struck by falling debris emanating from work activity overhead. Respondent’s foreman Hunter, who was in conversation with the employee(employee was standing outside truck talking to Hunter, inside) statedhe saw no concrete falling from above.A review of the testimony and the photographs depicting the areastrongly indicates that work was being carried out by welders on theroadway above. (Exh. C- 37, 38) A gas cylinder used by welders isdepicted in the photographs and the Compliance Officer positively statedhe saw men working. Exhibit C-38 depicts an opening in the overheadspan from which the testimony states debris was falling from. I findthat an employee of Respondent was standing below an area where therewas work activity being carried out without wearing a protective helmetand was subject to being struck and injured by falling debris. TheRespondent’s foreman was present and knew or should have known of thedanger present to the employee. The evidence establishes a violation of29 C.F,R. ? 1926.100 (a). A penalty of $250 is considered appropriate._Item 6, Alleged violation of 29 C.F.R. ? 1926.351(b)(1)_A violation of 29 C.F.R. ? 1926, 351 (b) (1) was alleged for failure tocomply with the requirement that \”all arc welding and cutting cablesshall be of the completely insulated, flexible type.\”The evidence clearly demonstrates that the insulation on the cableattached to the Denyo multi quip welding generator was torn exposing thewires. This presented a hazard of electrical shock to employees usingthe equipment. As to the allegations concerning the other generator(see item 6(b) of the citation) the evidence establishes the Ieadattachment to the generator was not insulated and presented a electricalhazard to employees who touched the lead at the attachment point. TheStandard requires the cable to be \”completely insulated\” The purpose isto protect employees from the hazard of electrical shock or evenelectrocution where there is any uninsulated point in the leadattachment. In both instances, alleged herein there was such a hazardpresent and the Respondent’s foreman hunter was aware of thiscondition. The preponderance of the credible evidence establishes aviolation of 1926.351 (b) (1). A penalty of $100 is consideredappropriate herein._Citation No. 2, Item 1, Alleged Violation of 29 C.F.R. ? 1926.201(a)(1) or in the alternative ? 1926.202 _The citation initially alleged a violation of 5 (a) (1) of the Act andwas amended in the Complaint to cite the above standards.Pursuant to a complaint that ironworkers employed by Tri-State weresubject to the hazard of being struck by vehicular traffic while engagedin bridge reconstruction work, Compliance Officer Cannon visited theworksite located on an interstate highway described as Fort WashingtonWay westbound on May 4, 1989. He observed barrels in the roadway whichwere used to direct traffic and separate it from the work area. The\”barrels were spaced at no particular distance…from 40 to 70 or 75feet, or somewhere in there.\” (Testimony of Cannon, T-190) There werethree to four welders working on the highway behind the barrier(barrels). The Compliance Officer observed traffic cutting in behindand between the barrels close to the men at work putting them at thehazard of being struck.After a meeting between the general contractor (The Jurgensen Co.,subcontractors Tri-State and National, and a representative from theOhio Department of Transportation the distance between the barrels wasreduced from 50 feet to 25 feet, and both a patrolman and flagman wereused to thwart the vehicular traffic crossing behind the barrels whichpresented a work hazard. These additional steps did not solve theproblem. The hazardous condition was remedied on May by the use of\”barrels, 10 foot centers with…mesh fencing\” which formed a barrierpreventing cross-overs.The standard at issue, 29 C.F.R. ? 1926.201(a) (1) is concerned withsignaling methods, specifically \”flagmen.\” The standard requires theuse of flagmen \”when operations are such that signs, signals, andbarricades do not provide the necessary protection. . .\” Consequently,one cannot be in violation for failure to use flagmen unless theevidence shows they were not used, or at least not properly used. Thatelement of proof is absent.Tri-State did use flagmen in attempting to alleviate the problem, whichproved unsuccessful. The Compliance Officer, who admittedly was againstciting this section testified that flagmen \”would be overburden somecostwise \” (T-419), meaning they were not feasible under thecircumstances existing. He stated, \”In my own opinion, I don’t believethe standard deals with the situation that we had at Fort WashingtonWay.\” (T-420) The citation therefore is vacated.In the alternative, a violation of 1926.203 in alleged. This standardrequires that \”Barricades for protection of employees shall conform tothe portions of the American National Standards Institute D 6. 1-1971,Manual on Uniform Traffic Control Devices for Streets, and Highways,relating to barricades.\”The standard requires that barricades shall conform to a listed ANSIStandard. Consequently, one can not be in violation unless this isproven. The Commission has hold that:In order to prove a violation of section 5(a)(2) of the Act, 29 U.S.C. ?654(a)(2), the Secretary must show by a preponderance of the evidencethat (1) the cited standard applies, (2) there was a failure to complywith the cited standard, (2) the employees had access to the violativecondition and (4) the cited employer either knew or could have known ofthe condition with the exercise of reasonable diligence. AstraPharmaceutical Products, Inc., 9 BNA OSHC 2126 (No. 78-6247, 1981).The evidence of record does not establish that the Secretary met herburden of proof. OSHA’s Compliance Officer testified that the standardat issue was not applicable \”to the situation on Fort Washington Way.\” (T-418) Assuming the standard applies to this situation on theinterstate highway, it was further incumbent on the Secretary todemonstrate by a preponderance of the evidence that the barriersexistent there did not conform with the ANSI Standard. The Secretarypresented no evidence on her essential element of proof. The citation,therefore, of an alleged violation of 1926.202 is vacated._Docket No. 89-2705 – National Engineering & Contracting Company -Serious Citation – Item 1_Respondent National was cited for violation of 29 C.F.R. ?1926.26(a)[[3]] for failure to require an employee who was operating ahammer drill to wear safety-toed shoes.To establish a violation of 1926.28(a) the Secretary must prove that theemployer had actual knowledge of the existence of the hazard whichrequired the use of personal protective equipment, or that a personablyprudent employer familiar with the relevant industry would require muchuse._S & H Riggers & Erectors, Inc.,_ 79 OSAHRC 23\/A2, 7 BNA OSHC 1260,1263, 1979 CCH OSHD23,480, p. 28,436 (No. 15855), rev’d 659 F .2d 1273 (5th Cir. 1981);_Ray welding co. v. OSHRC_, 625 F.2d 726,731, 8 NBA OSHC 1271,1275(5th Cir 1980),_Bristol Steel & Iron Works Inc, v. OSHRC,_ 601 F.2d 717,724, 7 BNA OSHC 1462, 1465-6 (4th Cir. 1979).It was incumbent on the Secretary to \”provide evidence from personsqualified to express such opinions\” that the personal protective meansspecified were necessary within the industry involved. See _L.R. Willsonand Sons Inc v. OSHRC_, 698 F.2d 507, 513, 11 BNA OSHC 1097, 1101 (D.C.Cir. 1983); _Ray Evers Welding Co._, supra at 625 F.2d 733; _Cape andVineyard Div. of the New Bedford Gas & Edison Light Co. v. OSHRC,_ 512F.2d 1148, 1155, 2 BNA OSHC 1628 1633 (1st Cir 1975). Complianceofficer Cannon testified he observed an employee using an air hammer tochip concrete and was not wearing safety-toed shoes: and \”there is agood potential for fractured toes.\” Sorrell, the employee identified asbeing without safety shoes testified he was not with the air hammer, butwas doing a drilling operation. Hunter, the general foreman on the jobcorroborated Sorrell’s testimony that he was drilling not chipping withthe air hammer He testified in the drilling operation the drill does notbounce around as happens with chipping, but stays down in the hole, andis not a toe hazard for employees.The testimony of both Sorrell and Hunter casts some doubts on theCompliance Officer’s knowledge of what type of operation was beingconducted, and therefore dilutes his opinion as to the alleged.There is no persuasive evidence presented by the Secretary that theemployee was exposed to a hazardous condition requiring the use ofsafety-toed shoes. Furthermore the citation must be vacated due to theSecretary’s failure to prove by a preponderance of the evidence that areasonable person familiar with the circumstances of the industry wouldhave protected against the hazard as specified by the ComplianceOfficer. Based on the foregoing, serious citation 1, item 1 is vacated._Citation No. 1, Item 1 (a),__Alleged violation of 29 C.F.R. ? 1926.89 (a)(1)(i) _The Secretary alleges Respondent violated this standard in that it didnot have a list of the hazardous chemicals known to be present using anidentity that is referenced on the appropriate MSDS. The ComplianceOfficer testified he was shown a master list of hazardous chemicals onwhich a number of hazardous chemicals used were missing. Hephotographed the list (Exh. C-8-28) and stated a number of photographsdid not develop but these missing chemicals were not on the list. Respondent through Banner its safety officer produced a list ofchemicals allegedly drawn up on March 8, 1991, which listed as presentall chemicals not previously found by the Compliance Officer.After reviewing and observing both men testify, I find that thetestimony of Cannon demonstrating that the list given to him did notcontain the hazardous chemicals listed is infinitely more reliable thana belated list prepared and now put forth as being in existence. Thephotographs and testimony amply demonstrates this listing wasincomplete. If the complete list was in existence, the Respondent wasfully on notice as to what the Compliance Officer was seeking, and couldhave provided it then and there. The total evidence re-enforces thereliability of the findings by the Compliance Officer on this change,and the citation is affirmed._Citation No. 1, Item 2(b),__Alleged violation of 29 C.F.R. ? 1926.19(f)(5)(i)_This standard, which pertains to hazard communication programs states:(f) _Labels and other forms of warning._(5) * Except as provided in paragraphs (f)(6) and (f)(7) the employershall ensure that each container of hazardous chemicals in the workplaceis labeled, tagged or marked with the following information:(i) Identity of the hazardous chemical(s) contained therein;The citation alleges that there were four containers of hazardousmaterials which were not so labeled, tagged or marked with theiridentity. Specifically, the Compliance Officer saw a can of gasoline,a portable fuel storage tank containing No. 2 diesel fuel, a fuel tanksitting on the back of a Chevrolet truck with contained No. 2 dieselfuel and a propane tank all without the necessary identification asrequired by the standard. The Respondent alleges that the size, shape,and coloring of these sufficiently identifies them, i.e. red containersignifies it has gasoline, propane tank was identifiable by itsconfiguration and coloring etc. This argument is without merit. Toensure that employees are made fully aware of chemical hazards,employers are required to label, tag or mark each container of hazardouschemicals.In plain, unambiguous language the standard states the containers mustshow the \”identity of the hazardous chemicals contained therein.\” Section 1926.59(c) states \”identity means any chemical or common namewhich is indicated on the MSDS for the chemical.\” No such descriptionwas placed on the containers herein. The Respondent knew that hazardouschemicals were in the containers and did not identify then as required. Citation No. 1. item 2(b) alleging a violation of 29 C.F.R. ?1926.59(f)(5)(i) is affirmed._Citation No. 1, Item 2(c)__Alleged Violation of 29 C.F.R. ? 1926.59(f) (5) (ii)_This standard requires that the employer ensure that each container ofhazardous materials is labeled, tagged or marked with appropriate hazardwarnings. The Secretary alleges that in nine instances Respondentfailed to comply. In four instances, there were no identifying labelsat all, i.e. Items (a) 5-gallon can of gasoline, (b) 1-gallon can ofgasoline, (d) Propane storage tank, and (h) Fuel, storage tank onChevrolet truck which contained No. 2 diesel fuel. The standardrequires each container be labeled, tagged or mark with appropriatehazard warnings. Absent any such warnings as occurring in the above,the standard is violated. Once again the same argument is made thatthe size, shape of the objects sufficiently identifies them. This inrejected as totally without Merit.On the remaining five items found in violation, i.e.(c) 35 5-galloncontainers of Poly Carb, (e) Universal tractor fluid, (f) Koch highpenetration primer 5952, (g) Sikadur 32, (i) Xylene; none met therequirements of the standard that warning be given to employers of thehealth hazard present when used. Merely printing words such ashazardous, or corrosive, or flammable does not meet the requirementsthat the employees be made aware of the bodily systems and organs atrisk. The discussion and finding related to a violation of thissection stated previously in relation to Tri-State is applicableherein. The Respondent knew or should have known of the failure to markits materials, with the necessary hazard information. The employeescould suffer serious and severe injuries from the chemicals involved. The violations of 29 C.F.R. ?? 1926.59(e)(1)(i), .59(f)(5)(i) and.59(f)(5)(ii) are affirmed. A combined penalty of $400 in consideredappropriate._Citation No. 1, Item 3,__Alleged violation of 29 C.F.R. ? 1926.59 (g) (1)_The Secretary alleges that National violated 29 C.F.R. ? 1926.59 (g)(1)by failing to have an MSDS for Koch high penetration primer No. 5952,Seal Tight Hi Spec polymeric compound, Hilti Hit C100 dowelling, andVulcan Super Prem SAE 30. The standard requires there be \”a materialsafety data sheet for each hazardous chemical.\”The Compliance Officer testified he examined Respondent’s MSDS’s on May10, 1989, at the worksite, and there were none for the five itemslisted. He requested them and counsel provided an MSDS for Seal TightHi Spec, Hilti Hit C100 and Universal tractor fluid at his office onJune 2, 1989.Respondent avers that all MSDS’s were provided and there was noviolation. This argument is without merit. The purpose of the HazardCommunication Program is to provide employees an opportunity to havetotal information regarding the hazards pertaining to the chemicals usedin performing their job. Thusly, the necessary information must beavailable to them _at the worksite_ where their contact with thechemicals occurs. The Compliance Officer noted the hazardous nature ofthe chemicals in the missing MSDS’s, all of which were known to theRespondent. These chemicals could cause serious illness or injury. Theviolation of the standard at 1926.59(g)(1) is affirmed. A penalty of$200 is considered appropriate for the violation._Citation No. 1, Item 4,__Alleged Violation of 29 C.F.R. ? 1926.100 (a)_Section 1926.100(a) requires that employees \”be protected\” by the use ofhelmets \”where there is a possible danger of head injury from impact orfrom falling or flying objects…\” See _Franklin R. Lacy,_ _supra._The Compliance Officer observed Scott Febus, Respondent’s assistant jobsuperintendent, working with foreman Robert Hunter under the I-75overpass. Febus was not wearing any head protection, while Hunter didhave one on. The Compliance Officer noted debris falling from overheadwhere arc welding was being carried out, and Febus was subject to beingstruck by debris. While Hunter testified he saw no debris falling, areview of the total evidence including the photographs of the areapresent substantial evidence to support a finding that Febus was indanger of being struck by overhead debris. The Respondent’s foremanknew of said danger and took means to protect himself by wearing a hardhat. The violation of 1926.100(a) is affirmed. It is noted that thecitation listed two instances of violation; however, one allegation waswithdrawn at the hearing. Based on the remaining violation, a penaltyof $350 is appropriate._Citation No. 1, Items 5(a) & (b),__Alleged Violation of 29 C.F.R. 1926,102(a) (1)_Section 1926.102 (a) (1) requires that \”employees shall be provided witheye and face protection when machines or operations present potentialeye and face injury from physical, chemical or radiation agents.\” Thusly, the employees are required to wear safety glasses meetingrequirements of the ANSI 297.1-1968 standard that is incorporated byreference at 29 C.F.R. ? 1926.102(a)(2).The Compliance Officer observed an employee (Sorrell) using a saw to cuta concrete parapet. He observed flying chips and pieces emanating fromthe operation, and stated the employee was at hazard with possibleinjury to his face and eyes since he was not wearing safety glasses, butmerely ordinary sunglasses. (See photograph Exh. C-66) The evidencesubstantiates that this employee was not wearing impact resistance typeglasses meeting the safety requirements required by the standard, andthat the operation of the saw presented the potential for eye injury.Additionally, the Compliance Officer observed another employee workingwithin 10 foot of the breaker operation without wearing safety glassesfor protection from flying debris. Although this employee did havesafety glasses, they were perched upon his forehead, and were notprotecting his eyes exposing him to potential eye and face injury. Thearea around the breaking operation constituted a zone of danger and theemployee not wearing his safety glasses had access thereto. See _DanielInt’l Corp v. Donovan _, 705 F.2d 382, 387-8, 11 BNA OSHC 1305, 1309(10th Cir. 1983).The Respondent was aware of the potential for eye and face injuries fromthe type of work being done; it had previously recorded eye injuries inits operation. A violation of the standard at 1920-102(a)(1) isaffirmed. A penalty of $300 is considered appropriate herein._Citation No,1. Items 6(a) & (b).__Alleged Violation of 29 C.F.R. ? 1926.151(a)(3)_The Secretary alleges there were two situations where a fire hazardexisted, and Respondent had failed to post signs stating \”No Smoking orOpen Flames\” as required. The Compliance Officer observed numerous cansof Poly Carb, a highly flammable substance stored on the inside of astorage trailer, and on the outside near the entrance. The trailer andits outside vicinity was used by the employees to obtain the neededmaterials. There was a no-smoking sign on a tank which the ComplianceOfficer estimated to be 50-60 feet from the flammable material; theRespondent alleged this sign was 20 feet away. In any case, the signwas not what a reasonable person would hold to be in the vicinity ofoperations which constituted a fire hazard. The standard is designed toprotect employees from a fire hazard; in that sense the warning signshould be in close proximity to the flammable materials, not 20 feet norlonger away.The Respondent knew of the presence of the flammable materials from theMSDS kept on premises therefor. The employees were subject to a firehazard while dealing with the poly carb material. A violation of thestandard has been proven. A penalty of $150 is considered appropriateherein._Citation No. 1, Item 7,__Alleged Violation of 29 C.F.R ? 1926.152 (a) (1)_Respondent was cited for failure to use an \”approved\” container forstoring flammable liquids.[[4]] The undisputed testimony of theCompliance Officer was that employees used a one gallon can of gasolinein their work activity which was non-approved and clearly exposed theemployees using it to the hazard that the gasoline fumes that couldignite and cause serious burn injuries. The Respondent contends theun-approved gasoline can being used was rented, and since the gasolinewas in the original container there is no violation. There isabsolutely no merit in this allegation. It was incumbent upon theRespondent to protect its employees from possible serious injury byusing an approved container. The Respondent knew of the presence offlammable materials and with reasonable diligence could have protectedagainst the violative conditions. Its employees had access to thehazard created by the hazardous condition. A violation of the standardat 1926.152(a)(1) is affirmed. A penalty of $150 is consideredappropriate herein._Citation No. 1, Item 8,__Alleged Violation of 29 C.F.R. ? 1926.152(g)(11)_The Secretary alleged that Respondent failed to comply with 29 C.F.R. ?1926.152(g)(11). In that there was no fire extinguisher within 75 feetof a flammable liquid storage area, i.e. in an area where a full storagetank contained diesel fuel. The evidence demonstrates there was a fireextinguisher directly under the tanks however, the Compliance Officeralleged a violation on the theory that being below the tank theextinguisher would be inaccessible if there was a fire. Thisinterpretation conflicts with the plain language of the statute whichmandates that \”an extinguisher within 75 feet… of the service area.\” Clearly, the extinguisher herein was within this parameter. \”…anoccupational safety and health standard must give an employer fairwarning of the conduct it prohibits or requires… see _Diamond RoofingCo v OSHRC_, 528 F.2d 645, 649 (5th Cir. 1976). The Secretary’sinterpretation of the standard conflicts with its plain meaning andfails to provide employers with fair notice of their obligations underthe standard.The citation alleging a violation of 29 C.F.R. ? 1926.152-(g)(11) isvacated._Citation No. 1, Item 9,__Alleged Violation of 29 C.F.R. ? 500(d)(1)_National was cited for violation of 1926.500(d)(1), for failing toprovide fall protection for employees working on the I-25 ramp about 20feet above ground level. The standard requires an opensided floor tohave standard railings an specified in 1976,500 (f) (1) (i)The Compliance Officer observed three men working on the bridge roadwaynot protected from a fall of 20 feet. A parapet in about to inches highdid not meet the guardrail required under the standard. The respondentknow or with due diligence could have known of the fall hazard present.Its foreman was present during the work activity, and furthermore it hadnotice that the guardrailing was removed from the parapet during therepair work. A fall from the bridge ramp could have caused seriousinjury. The citation alleging a violation of 29 C.F.R. ? 1926.500 (d)(1) in affirmed, and a penalty of $350 is appropriate herein._Citation No. 1, Item 10,__Alleged Violation of 29 C.F.R ? 1924.500 (a) (3) (i)_The standard at 29 C.F.R. ? 1926.600(a) (3) (1) requires that heavymachinery, equipment or parts thereof which are suspended or held aloftby use of slings, hoists or jacks be substantially blocked or cribbed toprevent falling or shifting before employees are permitted to work underor between them. The Compliance Officer testified an observed a backhoe\”being hold off by the outriggers with two employees under it.\” Thebackhoe was not blocked or cribbed to prevent it from falling. Theevidence demonstrates that there were employees working under thesuspended backhoe who were in danger of sustaining serious injury if thebackhoe tilted or fell. The record supports a finding of noncompliancewith the standard, and that the employees had access to the citedcondition. Furthermore, the Respondent knew or with the exercise orreasonable diligence, could have known of the violative condition. Thecitation for serious violation of 29 C.F.R. ? 1926.600(a)(3)(i) isaffirmed. A penalty of $150 is reasonable and appropriate undersection 17(j) of the Act._Citation No. 2, Item 1__Alleged Violation of 29 C.F.R. ? 1926.201(a)(1)__or in the alternative ? 1926.202_These are similar violations to those to which Tri-State was cited. Thearea where this violation took place is different. The ComplianceOfficer observed four men working at a table that was set up onsawhorses installing form work to re-pour a parapet located on thehighway. The area involved was where the I-75 southbound ramp from Ft.Washington Way merged with southbound 75. There were barrels along thisroute, however, the Compliance Officer found that the barrels endedapproximately 27 feet from the area where the men were working and theywere at hazard of being struck by vehicular traffic. He stated that twomore barrels which were on the traffic plan were missing, and that thesewere required to warn motorists of men at work, and to separate thetraffic lane from the work area.It is the Secretary’s burden, to establish that the Respondent knew withthe exercise of reasonable diligence, could have known of the violativecondition. _Astra Pharmaceutical Products, Inc._,_supra_.The traffic situation herein differs markedly from the area Tri-Statewas cutting in between barrels close to the men working. Here novehicular traffic would cross into the right lane since there was avisible parapet there; furthermore the highway vehicles were traversingon was slightly higher than the right adjacent roadway where the menwere constructing forms; additionally, a white line on the roadwayfurther introduced to the drivers the nature of the roadway, i.e. therewas one lane only going to Covington, Kentucky, at the point involvedherein. There was at least one half mile of roadway past the work areabefore the drivers needed to move to the right in order to get to theirdestination. The Respondent was aware of these factors. There is noevidence that the Respondent knew there was a hazardous conditionpresent or could have known it with reasonable diligence. With thefactors present as stated above, it cannot be said National failed toexercise reasonable diligence. The alleged violation of 29 C.F.R. ?1926.201(a) (1) or in the alternative 1926.202 is vacated.Another cogent reason to vacate these citations is the testimony of theCompliance Officer that both sections are not applicable to thesituation at hand. The Secretary did not disprove or give any evidenceto vitiate the testimony of its main witness._Citation No. 3, Item 1,__Alleged Violation of 29 C.F.R. ? 1926.350 (j) – Section 3.2.4.3. ANSIZ49.1-1967_The Respondent was cited for a non-serious violation of 1926.350(j) forfailure to assure that oxygen cylinders in storage separated fromfuel-gas cylinders or other combustibles by a minimum distance of 20feet or by a noncombustible barrier at least five feet high having afire-resistance rating of at least one-half hour in accordance with ANSIZ49.1 1967 Article 3.2.4.3. The Compliance Officer observed oxygencylinders approximately nine feet from flammable materials which wereplaced inside a storage trailer. (Exh. C-69, C-77) The flammable itemswere inside the trailer and separated from the oxygen by the trailerwall. The language of the statute requires the separation be by anoncombustible barrier at least 5 feet high. There was the wall barrierpresent. As part of its prima facie case the onus was on the Secretaryto prove that said wall barrier was not the prescribed fire resistantbarrier contemplated by the standard. That essential element of proofis missing. The citation is vacated._AFFIRMATIVE DEFENSE – EMPLOYEE MISCONDUCT_Respondents National and Tri-State claim that even if there was aviolation concerning failure to wear hard hats, failure to wearsafety-toed shoes, and failure to wear safety glasses, it was the resultof employee misconduct and should not be chargeable to them since theirsafety program specifically directed employees to use the protecteddevices required.Firstly, no violation was found regarding the use of safety-toed shoes(Citation No. 1, item 1 was vacated). The evidence of recordestablishes that the Secretary made out a prima facie case of aviolation of the Act with reference to the failure to have employeeswear hard hats (violation found against both National and Tri-State) andfailure to have employees wear safety glasses (violation against National).To establish the employee misconduct defense the employer must show thatthe violation resulted from employee actions which contravened a companywork rule that was effectively communicated and uniformly enforced. _H.B. Zachry Co. v. OSHRC_, 7 BNA OSHC 2202, affirmed, 638 F.2d 812 (5thCir. 1981); _Brock v. L.E. Myers Co., High Voltage Div_., 818 F.2d 1270(6th Cir. 1987) cert. denied, 108 S.Ct. 479, 98 L.Ed. 2d 509 (1987).While employers are not strictly liable for their employees’ conduct,the onus of compliance with the Act is on the employer, who has the dutyto communicate and enforce feasible work rules in order to avoidliability for the violative conduct of its employees. _L.E. Myers,_supra, at 1277, citing S.Rep. 1282, 91st Cong., 2d Sess. 10-11,reprinted in 1970 U.S. Code Cong. & Admin. News 5177, 5182; _TowneConstr. Co. v. OSHRC_, 847 F.2d 1187 (6th Cir. 1988) ; Danco Constr. Co.v. OSHRC, 586 F.2d 1243 (8th Cir. 1978) (\”[Respondent] cannot fail toproperly train and supervise its employees and then hide behind its lackof knowledge concerning their dangerous work practices\”).The Secretary may prove an employer’s knowledge of a preventable hazard\”upon the introduction of proof of the employer’s failure to provideadequate safety equipment or to properly instruct its employees onnecessary safety precautions.\” _L.E. Myers_, supra, at 1277, notingBrennan v. OSHRC, 511 F.2d 1139, 1143, n.5 supra, at 1277, noting_Brennan v. OSHRC_, 511 F.2d 1139, 1143, n.5 (9th Cir. 1975) and _Danco,_supra. \”[T]he employer … must demonstrate that program’seffectiveness in practice as well as in theory.\” _Towne Constr._, supra,citing _L.E. Myers_, supra.Respondents failed to demonstrate that it had established work rulesdesigned to prevent safety violations that was adequately communicatedand effectively enforced, or had taken steps to discover theseviolations. _Jensen Constr. Co._, 7 BNA OSHC 1477, 1979 CCH OSHD 23,664(No. 76-1538, 1979); _Texland Drilling Corp._, 9 BNA OSHC 1023 (No.76-5307, 1980). The presence of supervisory personnel at or near whenthe violations occurred indicate Respondents knew or could have withreasonable diligence known of the violations. _Pennsylvania Power &Light Co. v. OSHRC,_ 737 F.2d 350, 11 BNA OSHC 1985 (3rd Cir. 1984).Respondents failed to demonstrate by a preponderance of the evidencethat its safety program in practice was \”thorough and adequate\” anddiligently enforced. Their defense of employee misconduct must fail._FINDINGS OF FACT AND CONCLUSIONS OF LAW_The findings of fact and conclusions of law contained in this opinionare incorporated herein in accordance with Rule 52(a) of the FederalRules of Civil Procedure. Any proposed findings or conclusions notcontained in this opinion are neither found nor concluded._ORDER – IN RE: TRI-STATE STEEL CONSTRUCTI0N, INC._In view of the foregoing, good cause appearing therefore, it is ORDEREDthat:1) The allegation of serious violation set forth at 29 C.F.R. 1926. 59(e) (1) found in item 1 (a) is vacated. Item No. 1 (b) alleging aserious violation of 29 C.F.R. 1926.59(e) (1) (i) is affirmed and apenalty of $200 is assessed.2) The allegations of serious violations set forth at 29 C.F.R.1926.59(f) (5) (ii) found in items 2(a) and 2(b) of citation No. 1 areaffirmed, and a penalty of $200 is assessed, to reflect both items.3) The allegations of serious violations set forth at 29 C.F.R.1926.59(g)(1) found in items 3(a) and 3(b) of citation No. 1 areaffirmed, and a penalty of $200 is assessed, to reflect both items.4) The allegation of a serious violation set forth at 29 C.F.R.1926.59(h) found in item 4 of citation No. 1 is affirmed, and a penaltyof $200 is assessed.5) The allegation of a serious violation of 29 C.F.R. 1926.100(a) foundin item 5 of citation No. 1 is affirmed, and a penalty of $250 is assessed.6) The allegations of serious violations set forth at 29 C.F.R.1926.351(b) (1) found in items 6(a) and 6(b) of citation No. 1 areaffirmed, and a penalty of $100 is assessed, to reflect both items.7) The allegations of serious violations set forth at 29 C.F.R.1926.201(a) (1) or in the alternative 29 C.F.R. 1926.202 found in itemNo. 1 of citation No. 2 are vacated._ORDER – IN RE: NATIONAL ENGINEERING & CONTRACTING COMPANY_In view of the foregoing, good cause appearing therefore, it is ORDEREDthat:1) The allegation of serious violation set forth at 29 C.F.R. 1926.28(a)found in item 1 of citation No. 1 is vacated.2) The allegation of serious violations set forth at 29 C.F.R.1926.59(e) (1) (i) , 29 C.F.R. 1926.59(f) (5) (1), and 29 C.F.R.1926.59(f) (5) (ii) found in items 2(a) through 2(i) of citation No 1 isaffirmed and a penalty of $400, is assessed to reflect all items.3) The allegation of serious violations set forth at 29 C.F.R.1926.59(g)(1) found in item 3(a) through (e) of citation No. 1 isaffirmed, and a penalty of $200 is assessed, to reflect all items.4) The allegation of serious violation set forth at 29 C.F.R.1926.100(a) found in item 4(b) of citation No. 1 is affirmed, and apenalty of $350 is assessed.5) The allegation of serious violations set forth at 29 C.F.R.1926.102(a)(1) found in items 5(a) and (b) of citation No. 1 isaffirmed, and a penalty of $300 is assessed to reflect all items.6) The allegation of serious violations set forth at 29 C.F.R.1926.151(a)(3) found in items 6(a) and (b) of citation No. 1 isaffirmed, and a penalty of $150 is assessed, to reflect all items.7) The allegation of serious violations set forth at 29 C.F.R.1926.152(a)(1) found in item 7 of citation No. 1 is affirmed and apenalty of $150 is assessed.8) The allegation of serious violations set forth at 29 C.F.R.1926.152(g) (11) found in item 8 of citation No. 1 is vacated.9) The allegation of serious violations set forth at 29 C.F.R.1926.500(d) (1) found in items 9 (a) through (c) of citation No. 1 isaffirmed, and a penalty of $350 is assessed to reflect all items.10) The allegation of serious violations set forth at 29 C.F.R.1926.600(a)(3)(i) found in item 10 of citation No. 1 is affirmed, and apenalty of $150 is assessed.11) The allegation of serious violation set forth at 29 C.F.R.1926.201(a)(1) or in the alternative 29 C.F.R. 1926.202 found in item 1of Citation No. 2 is vacated.12) The allegation of other than serious violation of 29 C.F.R.1926.350(j) found in item 1(a) of citation No. 3 is vacated.IRVING SOMMERJudge, OSHRCDATED: MAY 1 1991Washington, D.C.FOOTNOTES:[[1]] Five of the nine issues listed in the Direction for Review are nolonger before us because they focused on the merits of citation itemsthat the Secretary has since withdrawn. Only the three issues relatingto the Respondents’ Fourth Amendment defense and the one issue relatingto the merits of item 9 remain before us on review. Contrary to theSecretary’s arguments on review, the Fourth Amendment issues stated inthe Direction for Review are not limited in scope to the evidencegathered in support of item 9. At a minimum, the validity of theevidence introduced in support of all items affirmed by the ALJ and notsubsequently withdrawn by the Secretary is at issue before us on review.See 29 C.F.R. ? 2200.92(a).[[2]] The task of Tri-State’s ironworkers was to repair or replace the\”end dams\” (or \”expansion dams\”) and \”expansion joints\” on the twobridges, which are referred to throughout the record as bridges 6 and2. Dams and joints are two types of devices used in bridges to allowexpansion and contraction during changing weather conditions. The \”enddams\” or \”expansion dams\” are located at either end of a bridge andextend horizontally across the width of the road. In contrast, the\”expansion joints\” run the same direction as the road. Because they areburied under the surface of the roadway, they become a pan of the bridgeitself. The rehabilitation work performed by Tri-State involved the useof cutting torches to cut the old welds, the replacement of oldexpansion joints, when necessary, and the use of welding machines tomake new welds. This work is frequently done from a sitting orcrouching position, and the worker’s vision is restricted by thewelder’s hood, making the worker particularly vulnerable to exposure topassing vehicles if adequate traffic control measures are not taken.National’s employees were responsible for demolition and removal of theroadway pavement covering the \”expansion joints and \”dams\” so that theTri-State employees could then come in and do their rehabilitation work. National employees were also responsible for removing the existingguardrails on the concrete parapets along the sides of the elevatedhighway as part of the process of installing new parapets. See Part IVof this decision,\/infra\/[[3]]Given the slow speed of the traffic, due to the congestion, and the50-foot spacing between the barrels, a motorist who washed to cross overto the opposite lane found it easy to do so.[[4]] As indicated, National is the parent company of Tri-State. Onproject 8, the Respondents’ three highest level management officials,including project superintendent Taylor, held their respective positionswith both National and Tri-State. Work crew foremen, however, workedeither for National or for Tri-State.[[5]] Once agreement was reached on this change in the traffic controlmeasures. ODOT instructed Taylor to send his employees back into thework area. The employees therefore returned to bridges 6 and 2 laterthat same day.[[6]] The Respondents assert that the complaint was filed by unionbusiness agent Shinkle of the Iron Workers Union, which representedTri-State employees at the worksite. However, the affidavit filed inconjunction with OSHA’s warrant application, see discussion\/infra\/,states that the complaint was filed by \”a representative of employees ofthe general contractor on the construction site, John R. Jurgensen Co.\”The complaint itself is not in the record. The record does contain asummary of the complaint that was prepared by OSHA and attached to thewarrant application. However, that summary contains no informationabout the person who filed the complaint.[[7]] The complaint summary, see \/supra\/ note 6. described the allegedhazard as follows:Barrels used to contain traffic on Fort Washington Way west bound eastof the interchange for north and south bound 1-75 am not set to preventtruck and auto traffic from driving between them in order to changelanes. Employees are working between two such rows of barrels andsubject to being struck by vehicles changing lanes through the openingsbetween the barrels.[[8]] OSHA responded promptly because it considered the complaint to bean allegation that employees were exposed to an imminent danger. OSHAalso considered the complaint to be an allegation of conditions inviolation of the Occupational Safety and Health Act of 1970, 29 U.S.C.it ?? 651-678 (\”the Act\”). Thus. CO William J. Wilkerson included thefollowing statement in his warrant application affidavit, which wediscuss \/infra\/: \”In my opinion … the complaint alleges seriousconditions that are covered by 29 CFR 1926.201, 29 CFR 1926.202, Section5(a)(1) of the Act and other parts.\” Sections 1926.201 and 1926.202 arefound in Subpart G of Part 1926, which contains provisions governing,among other things, traffic control measures during constructionactivities. Section 1926.201 regulates the use of flaggers, whilesection 1926.202 regulates the use of barricades. Section 5(a)(1) ofthe Act, 29 U.S.C ? 654(a)(1), the Act’s \”general duty clause,\” providesthat \”[e]ach employer. . . shall furnish to each of his employeesemployment and a place of employment which are free from recognizedhazards that are causing or likely to cause death or serious physicalharm to his employers.\”[[9]] During this two-hour period, Cannon personally observed four carsand one truck cross over the two center lanes. These included vehiclesgoing in both directions i.e., from the left-hand lane to the right-handlane, and vice verse. One of these incidents, in which a Jaguar passedthrough the work area and came very close to a group of Tri-Stateemployees, was videotaped by CO trainee Boatman (Exh. C-12). Theinspection on May 4 was limited to the work area identified in theemployee representative’s complaint, and Cannon’s focus was on\”documenting the criss crossing traffic.\” Cannon determined that thebarrels arranged in rows on both sides of the work area were spacedirregularly, with the distances between barrels varying from 40 feet to70 or 75 feet apart. Some additional protection was provided to theemployees by two trucks and three or four welding machines that werestrategically placed in relation to the work crews.[[10]] The record contains an alternative chronology of events. Thisalternative chronology is based primarily on Cannon’s depositiontestimony, but it also finds some support in his testimony at thehearing, particularly during cross examination. Under this version ofevents, the decision to conduct a full-scope inspection of project 8 andthe agreement between the area director and Jurgensen’s president on theinstallation of the snow fence both occurred on Friday, May 5, ratherthan Monday, May 8. Most of the work on implementing this plan was doneon Sunday night, May 7. and accordingly, when the CO returned to thesite on Monday morning, May 8, most of the snow fencing had already beeninstalled. From our point of view in resolving the issues that arebefore us, it makes little if any difference which of these chronologiesis correct.[[11]] The secretary also argues that the evidence should not besuppressed in these cases even if the Fourth Amendment was violated. Since we conclude herein that the Respondents Fourth Amendment rightswere not violated, we have no occasion to reach these alternativearguments. which focus on the application of the exclusionary rule andthe good faith exception to the exclusionary rule in the context ofthese proceedings.[[12]] We further note the inconsistency between the Secretary’sarguments before us and the Secretary’s position at the time she issuedher citations. As a result of her investigation of the employeerepresentative’s complaint and her warrantless inspection of the areadescribed in the complaint. OSHA issued to Tri-State a citationalleging a willful violation of section 5(a)(1) of the Act, see supranote 8, and proposing a $9000 penalty. The Secretary’s allegation wasthat Tri-State violated the Act in the following manner: \”Employees wereallowed to work in an area that is part of an interstate highway systemknown as Ft. Washington Way westbound without adequate protectionprovided for employees to prevent automobile and truck traffic fromdriving through the work area subjecting employees to being struck bysuch vehicles\” (emphasis added). We find this allegation–in essence,that Tri-State violated the general duty clause by not taking adequatemeasures to keep the public out of the work area–to be incompatiblewith the Secretary’s claim that the CO had a right to be in the workarea because he was merely going into an area that was open to the public.[[13]] The cases cited by the ALJ and by the Secretary do not convinceus otherwise. The judge cited Stephenson Enterp., Inc. v Marshall, 578F.2d 1021 (5th Cir. 1978), for the proposition that \”the observations[the compliance officer] made on the highway after parking his vehiclewhich were in plain view of all was not a constitutional violation.\” However, the \”plain view\” observations that were referred to inStephenson Enterp. were made during the course of a consensual workplaceinspection. The compliance officer was therefore lawfully in the placefrom which he made his observations because the employer had consentedto the walkaround inspection.The cases cited by the Secretary in support of the judge’s reasoning arealso distinguishable on similar grounds. \/See, e.g. AckermannEnterprises, Inc\/., 10 BNA OSHC 1709, 1982 CCH OSHD ? 26,090 (No.80-4971, 1982), (CO inadvertently viewed violation from employer’sparking lot after receiving permission from the employer’srepresentative to wait for a management official in the parking lot).[[14]] In arguing before us that the Fort Washington Way worksite wasentitled to protection under the Fourth Amendment, the Respondents relyheavily on a case in which the United States Court of Appeals for theSeventh Circuit recognized the existence of a \”business curtilage\”exception to the \”open fields doctrine. \/United States v. Swart,\/ 679F.2d 698, 702 (7th Cir. 1982). The curtilage concept originated atcommon law to extend to the area immediately surrounding a dwellinghouse the same protection under the law of burglary as was afforded thehouse itself.\” \/United States v. Dunn\/, 480 U.S. 294, 300(1987)(\”\/Dunn\/\”)(emphasis added). As discussed in \/Dunn,\/ the concepthas been incorporated into Fourth Amendment analysis, and the domesticcurtilage is considered to be protected under the Fourth Amendment eventhough it may literally be both a field and open. It is not at allclear under the case law, however, that a business has a \”curtilage\” inthe same sense that a home does. Even if it does, we fully agree withthe Secretary that the concept of a \”business curtilage\” has noapplication to the situation at issue before us:A \”business curtilage\” presumably would be the land surrounding andassociated with a fixed place of business, as in \/Swart\/. Here, thereis no office, plant, or other commercial building to which a curtilagewould attach. There were only the open areas of the highways and bridges.\/See generally Pearl Meadows Mushroom Farm Inc. v. Nelson\/, 723 F. Supp.432, 439- 41 (N.D. Calif. 1989).[[15]] Citing \/Oliver\/, 466 U.S. at 182-83, the \/Dunn \/Court noted thatit had \”expressly rejected the argument that the erection of fences onan open field–at least of the variety involved in these cases and inthe present case–creates a constitutionally protected privacyinterest.\” 480 U.S. at 304. In \/Dunn,\/ as in Oliver, the Court wasdealing with fences that were designed only to keep trespassers out(and, in Dunn, to keep livestock in). The \/Dunn\/ Court suggested thatthese types of fences must be distinguished, for Fourth Amendmentpurposes, from privacy fences that are designed to prevent outsidersfrom observing what lies within. In the cases now on review, weconclude that the barriers at issue fall within the same category as thefences that were at issue in \/Oliver\/ and \/Dunn\/. As the Secretarycorrectly observed in her review brief, \”virtually all of [Tri-States]construction activities took place in full view of motorists passing byon the open lanes of traffic\” and [t]he widely-spaced traffic barrelsobviously did nothing to impede this view.\” Nor were they intended toaccomplish anything more than keeping motorists out of the work area.[[16]] In \/Oliver\/, the Court applied the \”open fields\” doctrine eventhough the police, upon arriving at a farm, ignored a locked gate with a\”No Trespassing\” sign posted, followed by a footpath that led around oneside of the gate, and eventually reached a marijuana patch in a highlysecluded area that could not be seen from any point of public access. As noted by the \/Dunn\/ Court, the\/Oliver\/ Court held that the stepstaken to keep the public off of this private property did not create areasonable expectation of privacy. 480 U.S. at 304 (citing 466 U.S. at182).[[17]] As indicated above, Wilkerson averred in his affidavit that theemployee reprepresentative’s complaint met the \”formality requirements\”of section 8(f)(1) of the Act. These requirements are \”stated inChapter IX of OSHA’s Field Operations Manual (\”FOM\”), .which wasattached to the warrant affidavit as Exhibit B. To meet theserequirements, a complaint of unsafe or unhealthful working conditionsmust: \” (1) Be reduced to writing (either on an OSHA-7 Form or in aletter); (2) Allege that an imminent danger or a violation threateningphysical harm (i.e. a hazard coveted by a standard or by the generalduty clause) exists in the workplace; (3) Set forth with reasonableparticularity the grounds upon which it is based …. and (4) Be signedby at least one employee or employee representative.\” Section 8(f)(1)implicitly requires the Secretary to determine whether a complaintmeets, the formality requirements set forth above. The statute alsoexpressly requires the Secretary to determine whether \”there arereasonable grounds to believe\” that the violations or imminent dangerhazards alleged in the complaint actually exist. \”If upon receipt of[the complaint] the Secretary determines there arc reasonable grounds tobelieve that such violation or danger exists, he shall make a specialinspection in accordance with the provisions of this section as soon aspracticable, to determine if such violation or danger exists.\”[[18]] On May 31, 1989, the Secretary filed in the district court anopposition to National’s motion for a stay (See discussion of National’smotion, \/infra\/). In that opposition, the Secretary argued that herwarrant application had provided probable cause for a full-scopeinspection–regardless of whether that application was evaluated underthe provisions of paragraph 9.b. or paragraph 9.d. above: \”[T]heApplication for Inspection Warrant provides sufficient neutral criteriafor an expanded inspection in even a low-hazard industry because of theadditional safety hazards observed such as improper use and storage offlammable gases, failure tit remove welding rods from welding cableclips, and inadequate protection of workers from moving vehiculartraffic.\” As indicated above. Wilkerson stated in paragraph 2 of theaffidavit that these additional safety hazards had been observed duringthe course of the section 8(f)(1) inspection.[[19]] Under well-established Fourth Amendment case law. \”[c]onsenteffective to validate a warrantless search may be given by a personother than the victim of the search.\”\/Donovan v. A.A. Biero Constr.Co.\/. 746 F.2d 894, 898 (D.C. Cir. 1984). Such \”third-party consent\” maybe given by anyone having common authority over the premises or effectsthat the government agent wishes to search.\/Id\/. See also \/UnitedStates v. Matlock\/, 415 U.S. 164,171 (1974) Furthermore, suchthird-party consent is valid to justify a warrantless inspection eveneven the targeted party objects to the inspection, as Jurgensen,National, and Tri-State did in that cases. \/See J L Fot: Constr. Co. vDonovan,\/ 786 F.2d 714, 716-17 (6th Cir. 1986). The third party,however can consent to inspection of the common areas and not toinspection of area under the exclusive authority of the targeted party.\/See, e.g. National Engg.& Contract Co. v OSHA\/, 928 F.2d 762, 766 (6thCir. 1991) (quoting 4-4. Biero, 746 F.2d at 901-02)(\”While authority toconsent to a search of a common area extends to most objects in plainview, it does not automatically extend to the interiors of everyenclosed space within the area\”).[[20]] As set forth supra at note 12, OSHA issued a citation toTri-State alleging a willful violation of section 5 (a) (1) of the Act,based on the conditions it discovered during its section 8(f)(1)complaint inspection. When the Secretary filed her complaint in OSHRCDocket No. 89-2611, however, she amended the citation in question toallege that Tri-State committed a serious violation of either ? 1926.201or ? 1916-202. (This amendment changed only the Secretary’s legaltheory and not the factual basis of the charge; the citation was stilldirected essentially to Tri-State’s failure to keep motorists out of thework area on Fort Washington Way). In his decision in theseconsolidated cases, the ALJ vacated this contested citation, at least inpart because of CO Cannon’s opinion testimony that neither of the twostandards cited in the amended charge applied to the cited conditions. (The judge also found that the Secretary had failed to provenoncompliance with either of the standards assuming that they wereapplicable). The judge expressed no opinion as to whether the citedconditions violated section 5 (a)(1) as the Secretary had originallycharged.[[21]] In view of our conclusion, \/infra\/, that the judge was correct inholding that the warrant was valid we need not reach the other argumentsraided by the Secretary in her review brief. We note, however, theinconsistency between (a) the Secretary’s claim before us that theinspection at issue could have been conducted without a warrant and (b)the concession made by the Secretary before Magistrate Sherman that awarrant was necessary, even though she had already obtained third-partyconsent, because she intended to conduct (and indeed later did conduct)an inspection that went well beyond those conditions that were in \”plainsight.\” \/See Supra\/ note 19.[[22]] In her review brief, the Secretary noted that \”the administrativeplan which formed the primary basis for seeking a full scope warrant hasbeen changed\” since the filing of the warrant application at issue inthese cases. In particular, the provision governing the expansion ofcomplaint inspections in the construction industry has been revised.[[23]] In any event, the Respondents discuss only the question ofcontractual responsibility, ignoring the more significant issue of legalresponsibility under the Act. Thus, for example, the duty imposed bysection 5(a)(1) the Act, \/see supra\/ note 8, to protect workers fromrecognized hazards that are causing or likely to cause death or seriousphysical harm, is a duty statutorily imposed on each employer withrespect to its own employees. The fact that others had the contractualresponsibility for developing and implementing the traffic control plandid not mean that National and Tri-State were powerless to protect theirown employees or that they were absolved of all responsibility under theAct to provide those employees with safe and healthful workplaces andworking conditions.[[24]] As set forth more fully in Part 1A of this decision, \/supra,\/OSHA made the decision to expand its inspection on Monday, May 8, andthereafter attempted to gather all of the contractors on project 8 foran opening conference. However, these efforts fell apart whenrepresentatives of Jurgensen and of National\/Tri-State demanded thatOSHA obtain an administrative inspection warrant. This warrant wasobtained on May 9 and served on May 10, which was the day the formalwalkaround inspection began.[[25]] Specifically, the Respondents argue as follows in their review brief:These observations [of \”additional safety hazards,\”as described in theaffidavit] could only have been made by the compliance officer on thescene. However, he testified [in his deposition] that theseobservations only occurred after May 9, not before.[[26]] Even if the challenged statement is viewed as being OSHA’sdetermination rather than Wilkerson’s personal opinion, we cannotconclude that the asserted misrepresentation had any effect on themagistrate’s determination of administrative probable cause. In effect,the challenged statement presented the magistrate with either of thealternative theories that the Secretary later advocated in theproceedings before the commission that is that the conditions describedin the employee representative’s complaint and confirmed by Cannon’swork place inspection were in violation of ? 1926.201 or ? 1926 202 orsection 5(a)(1) of the Act. Assuming that there was disagreement withinOSHA over which of these legal requirements covered the at issue weconclude that OSHA had no obligation to bring this disagreement to themagistrate’s attention. From the view point of the magistrate in makinghis probable cause determination, the significant fact was that insofaras this record shows everyone in OSHA involved in the inspection andwarrant application process agreed that the hazard in question violatedthe Act[[1]] The American Heritage Dictionary, New College Edition, 1976,Houghton Mifflin Company, Publishers, p. 1361.? 1926.28 Personal protective equipment.(a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.? 1926-152 Flammable and combustible liquids.(a) General requirements. (1) only approved containers and portabletanks shall be used for storage and handling of flammable andcombustible liquids…”