“Docket No. 89-2611 89-2705 SECRETARY OF LABOR,Complainant,v.TRI-STATE STEEL CONSTRUCTION, INC.,andNATIONAL ENGINEERING & CONTRACTING COMPANY,Respondents.OSHRC Docket Nos. 89-2611 & 89-2705 (Consolidated)DECISIONBefore: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:IntroductionThese consolidated cases arise out of an Occupational Safetyand Health Administration (\”OSHA\”) inspection of a multi-employer constructionworksite.\u00a0 Both National Engineering & Contracting Company (\”National\”)and its wholly-owned subsidiary, Tri-State Steel Construction, Inc.(\”Tri-State\”), were subcontractors on that project.\u00a0 As a result of theInspection, OSHA issued these two employers a total of five citations, alleging numerousviolations of the Act.\u00a0 Following a hearing on the merits of the five citations, theReview Commission’s administrative law judge (\”the ALJ\” or \”thejudge\”) issued his decision, in which he affirmed most of the alleged violations,vacated others, and rejected the Fourth Amendment defense that had been raised jointly bythe two employers.\u00a0 For the reasons that follow, we affirm the judge’s rulings on theFourth Amendment issues that are before us.\u00a0 However, we reverse the judge and vacatethe only citation item-citation no. 1, item 9, in Docket No. 89-2705–that remains beforeus for a decision on the merits.[[1]]I. THE VALIDITY OF THE WARRANTLESS INSPECTIONA. BackgroundThe construction project at issue was a highway rehabilitationproject that is referred to throughout the record as \”Project 8.\”\u00a0 Thisproject, involving the reconstruction of 36 bridges, covered four miles of roadway onthree interstate highways that converge in or near Cincinnati, Ohio.\u00a0 Work was begunon the project in February 1989 and was still continuing at the time of the hearing inthese cases (in August 1990).The prime contract on project 8 was between the Ohio Departmentof Transportation (\”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 bridge reconstruction work exceptfor \”deck overlay.\”\u00a0 And National had a subcontract with Tri-State toperform all of the steel erection work that was involved in National’s contract withJurgensen.Because this project involved work on sections of interstatehighway that were elevated over the city streets of downtown Cincinnati, it was necessaryto develop a 348-page-long traffic control plan to assure that the work was performedsafely and sequentially (in planned phases), while allowing traffic to continue to flow onthose lanes that were not currently being rehabilitated.\u00a0 The plan was developed byODOT and then approved by the Federal Highway Administration (\”the FHWA\”).\u00a0 Jurgensen had exclusive responsibility for implementing the plan, includingplacement of barrels and traffic control devices as directed in the plan.\u00a0 It isundisputed that neither National nor Tri-State had any contractual responsibility fortraffic control measures.\u00a0 Moreover, any changes in the plan could only beimplemented following ODOT approval.The events leading up to the challenged inspection in thesecases began on Thursday evening, April 27, 1989, when Jurgensen made certain changes inthe placement of barrels and traffic control devices.\u00a0 These changes allowed Nationaland Tri-State employees to begin working in the two center lanes of two adjoining, whiletraffic continued to flow on the two outer lanes of those bridges. [[2]]\u00a0 Followingthe directions stated in ODOT’s traffic control plan, Jurgensen rearranged the barrels ina V-shaped pattern, with the two center lanes in the center of the V. Barrels and trafficcontrol devices were also set up on the roadway leading up to bridge 6 in an attempt tocompel motorists to go either to the left or to the right of the blocked-off work area.\u00a0 The barrels were 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 thisnew traffic configuration for the first time, and serious problems quickly developed.\u00a0 Many motorists found themselves being channeled into lanes that took them indirections they did not want to go.\u00a0 On several occasions, motorists responded to thediscovery that they were in the wrong 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]]\u00a0 In taking this route, they passed right throughthe area where National and Tri-State employees were working, creating a hazard to thework crews.As the hazard became increasingly apparent that Friday morning,the project superintendent for National and Tri-State ordered measures taken to protectthe employees.[[4]]\u00a0 Trucks and other vehicles were moved into position to createbarricades around the end dams and expansion joints where the employees were working.\u00a0 See supra note 2.\u00a0 In addition, guardrails that had been removed fromthe parapets were placed on the ground between the barrels.\u00a0 However, stateinspectors soon ordered removal of these stacked guardrails because they were creating ahazard to the motorists.\u00a0 Finally, project superintendent Taylor had his officeworker contact higher-level state employees.\u00a0 As a result of this discussion, ODOTordered Taylor to remove the employees from the bridges.At the contractors’ routine bi-weekly progress meeting thatsame morning, Taylor raised the above-described hazard, on Fort Washington Way, as anissue.\u00a0 After discussion, ODOT agreed to allow Jurgensen to bring in additionalbarrels, thereby reducing the intervals between barrels from 50 to 25 feet.[[5]]\u00a0 Forunexplained reasons, however, this doubling of the barrels was limited to the areamotorists passed through before reaching bridge 6.\u00a0 Thus, it had little or no effecton the hazard created by the vehicles crossing through the work area.\u00a0 TheRespondents, however, made some efforts to protect their work crews–by placing trucks andwelding machines in strategic positions and by using employees with \”slow\” signsas a supplemental traffic control measure.On May 4, 1989, almost a week after the hazard first arose, a representative of theworksite employees filed a formal complaint of unsafe working conditions with the localOSHA area office.[[6]]\u00a0 The complaint described the hazard that existed on FortWashington Way and identified Jurgensen as the employer. [[7]]\u00a0 OSHA complianceofficer Cannon (\”CO Cannon\” or \”Cannon\”) and CO trainee Boatmanarrived at the Fort Washington Way worksite to investigate the complaint’s allegations;within hours of receiving the complaint.[[8]]\u00a0 Upon arriving at bridge 6, CO Cannondrove his van between two barrels and parked in the two \”blocked-off\” centerlanes of the highway.\u00a0 Almost immediately after stepping out of the van, CO traineeBoatman began videotaping the scene, and he continued videotaping on an intermittent basisthroughout the two hours the CO’s spent at the worksite.Upon reaching the work crew, CO Cannon introduced himself andpresented his credentials to the first worker he met.\u00a0 He asked that worker toidentify the supervisor in charge of the worksite.\u00a0 The worker directed him toTri-State’s general foreman Hunter, see supra note 4, and Cannon proceeded torepresent his credentials to Hunter.\u00a0 At this point, Cannon learned for the firsttime that all of the exposed workers were employed by Tri-State–apparently, the Nationalemployees had completed their work in the area, see supra note 2–and not byJurgensen, the employer that was named in the complaint.Hunter did not express any objection to the presence of theOSHA compliance officers, but he did inform them that he would have to notify hissupervisor or someone else from National. Approximately 20 to 30 minutes after the arrivalof the OSHA inspectors, project superintendent Taylor, Hunter’s supervisor, and assistantproject superintendent Febus arrived at the work area. They apparently came up to the workarea from the office trailer shared by National and Tri-State, which was located directlybelow one of the sections of elevated highway that was being rehabilitated. \u00a0According to CO Cannon, these management officials did not object to his presence at theworksite, although they did ask that the entire group go down to the office trailer todiscuss the matter.\u00a0 Cannon refused this suggestion on the ground that he was dealingwith an imminent danger situation that \”needed to be addressed now.\” \u00a0 Forthis reason, he held an abbreviated opening conference with Taylor, Febus, and Hunter atthe work area in question rather than a formal conference at the office trailer.Shortly after the arrival of Taylor and Febus, a Jurgensenrepresentative and ODOT’s onsite representative in charge of traffic control also arrivedat the work area.\u00a0 Finally, approximately an hour after the inspectors’ arrival, theattorney representing both National and Tri-State arrived. Immediately upon joining thegroup, the attorney formally demanded that the CO’s cease their inspection and obtain anadministrative inspection warrant. Cannon responded, first, by refusing the request,arguing that he did not need a warrant because he was on public property, and, second, bycontinuing his inspection and investigation.\u00a0 As indicated previously, the CO’sremained at the worksite for approximately two hours.[[9]]\u00a0 They then went down tothe office trailer area, where they met with representatives of Jurgensen, the generalcontractor.There was no patrol car at the site on May 4 (or indeed at anytime prior to OSHA’s arrival). However, CO Cannon received assurances, that a patrolmanwould be sent out the next day for the purpose of ticketing motorists who disobeyed theexisting traffic signals by passing through the work area.\u00a0 Cannon was already backat the work area on Friday morning, May 5, when the patrolman arrived at approximately9:00 a.m. However, this measure also failed to abate the hazard.\u00a0 Thus, the COobserved that, while the patrolman was in the process of writing out a ticket to oneoffending motorist, one or two others would pass between the barrels and through the workarea.\u00a0 On Friday, the hazard was alleviated only when the employees walked off thesite because of a strike, 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 not earlier.Cannon testified that he returned to the work area on Monday,May 8, in a continuing effort to resolve the traffic control problem and also to conductemployee interviews.\u00a0 He again limited his inspection to the work area on bridges 6and 2, and he again observed that, while the patrolman was writing out a ticket to oneoffending motorist, others at the same time were passing through the work area unimpeded.At some time during the morning of May 8, the CO returned tohis office to meet with the area director.\u00a0 Subsequently, the area director and Jurgensen’spresident reached agreement by telephone on a means to eliminate the hazard.\u00a0 Jurgensenagreed to reduce the distance between barrels to 10 feet (by adding more barrels onboth sides of the work area) and then to erect a \”snow fence\” connecting thebarrels along one side of the work area.\u00a0 After obtaining ODOT’s approval for thesechanges in the traffic plan, Jurgensen fully implemented them by the end of the work dayon Monday.By then, OSHA’s attention had already shifted elsewhere. \u00a0During a telephone call made from the worksite to the OSHA office earlier that samemorning, the area director instructed Cannon to expand his inspection to cover the entireworksite, i.e., all of project 8. Accordingly, the CC attempted to set up an openingconference with representatives of all of the contractors that were then working on theproject.\u00a0 This fell through, however, when Jurgensen’s representative, and also therepresentative of National and Tri-State, demanded that Cannon obtain an administrativeinspection warrant before expanding his inspection beyond the geographical area andphysical hazard described in the employee representative’s complaint.\u00a0 OSHA thereforeobtained such a warrant on the following day, May 9.\u00a0 On the day after that, May 10,Cannon again returned to the worksite to serve that warrant and to begin the second phase,of his inspection. which we will discuss separately infra.[[10]]B. AnalysisOn review, the Secretary presents three alternative legaltheories in support of her contention that the warrantless phase of the inspection did notviolate the.\u00a0 Fourth Amendment.[[11]]\u00a0 The ALJ held that the warrantlessinspection was valid and apparently based his holding on two of the Secretary’sarguments…validity under the \”public right-of-way\” rationale and validityunder the \”plain view\”‘ doctrine.\u00a0 For the reasons that follow, we rejectthe judge’s reasoning, but not his ultimate conclusion.\u00a0 Instead, we agree with theSecretary’s third alternative theory..that the warrantless inspection was valid under the\”open fields\” doctrine.\u00a0 We therefore affirm the judge’s determination thatthe Respondents’ Fourth Amendment rights were not violated, but for reasons different thanthose stated by the judge.The first theory that we address is essentially the argumentthat CO Cannon made when he rejected the demand of the Respondents’ attorney todiscontinue his inspection and obtain an administrative inspection warrant.\u00a0 Asindicated, the CO’s response was that he did not need to get a warrant because he was onpublic property.\u00a0 Both the ALJ and the Secretary have supported this claim. \u00a0However, for the reasons that follow, we disagree.The basis for this \”public right-of-way\” argument isthe decision of the United States Supreme Court in Marshall v. Barlow’s, Inc.,436 U.S. 307 (1978) (\”Barlow’s\”). In Barlow’s, the Court heldthat the Fourth Amendment generally prohibits warrantless, nonconsensual inspections ofbusiness establishments under the Act. More specifically, it held that, because theemployer in that case refused to agree to a voluntary inspection, OSHA was required underthe Fourth Amendment to obtain an administrative inspection warrant before it couldinspect \”the nonpublic area\” of the employer’s manufacturing establishment:The critical fact in this case is that entry over Mr. Barlow’sobjection is being sought by a Government agent.\u00a0 Employees are not being prohibitedfrom reporting OSHA violations.\u00a0 What they observe in their daily functions isundoubtedly beyond the employer’s reasonable expectation of privacy.\u00a0 TheGovernment inspector, however, is not an employee.\u00a0 Without a warrant he stands in nobetter position than a member of the public.\u00a0 What is observable by the publicis observable, without a warrant, by the Government inspector as well…. [However, thefact that an employer permits employees into a work area) furnishes no justification forfederal agents to enter a place of business from which the public is restricted and toconduct their own warrantless search.436 U.S. at 314-15 (emphasis added). See also ConcreteConst. Co., 15 BNA OSHC 1614, 1617, 1992 CCH OSHD ? 29,681, p. 40,240 (No. 89-2019,1992) (the Fourth Amendment \”does not require a warrant for a nonconsensualinspection of a workplace to the extent the workplace is open to the public\”).Accordingly, in order for the Secretary to prevail on her\”public right-of-way\” theory, we must view the compliance officer, actingwithout a warrant, as being \”in no better position than a member of the public.\”\u00a0 Barlow’s. 436 U.S. at 315.\u00a0 We must conclude that the CO limited hisinspection to areas that were open to the public and did not enter areas \”from whichthe public is restricted.\” Id. This we cannot do.\u00a0 At the hearing, thecompliance officer admitted that the warrantless phase of the inspection took place in awork area that the public was not permitted to enter and that the \”purpose\” ofplacing the barrels around the two center lanes \”was to keep members of the motoringpublic out of the area.\”\u00a0 In addition, the Respondents have argued that thecontract between ODOT and national had the effect of removing those lanes that were beingreconstructed from public use and placing them under the exclusive control of theRespondents.\u00a0 Finally, we emphasize the testimony of CO Cannon concerning the secondand third days of his inspection.Cannon testified that, on both of those days, a patrolman wassent out to the work area in question to issue tickets to motorists who drove between thebarrels and across the two center lanes.\u00a0 We conclude that this unrebutted testimonyestablishes conclusively that the work area was closed to the public and not part of thepublic right-of-way.\u00a0 Motorists could not have been ticketed for driving in areasthat were open to the public.[[12]]For this same reason, we also reject the second of theSecretary’s three alternative theories.\u00a0 The Secretary argues, and the judge held,that the warrantless inspection of the work area in question was justified under the\”plain view\” doctrine, which is a recognized exception in the case law to theFourth Amendment’s warrant requirement.\u00a0 We agree, however, with the Respondents thatthe \”plain view\” doctrine does not apply to the challenged inspection.There are two significant limitations to the \”plainview\” doctrine, both of which render it inapplicable to the cases now before us.\u00a0 \”The first of these is that plain view alone is never enough tojustify the warrantless seizure of evidence.\”\u00a0 Coolidge v. New Hampshire,403 U.S. 443, 468 (1971) (\”Coolidge\”).\u00a0 Instead, the \”plainview\” doctrine can only be applied when the OSHA inspectors make their \”‘plainview\” observations from a location where they are legally justified in being. Seeid, 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 view must beinadvertent….[W]here the discovery is anticipated, [w]here the police know in advancethe location of the evidence and intend to seize it, the situation is altogetherdifferent.\”‘ Coolidge, 403 U.S. at 469-70. See also id., 403 U.S.at 471 n.27 (\”This Court has never permitted the legitimation of a plannedwarrantless seizure on plain view grounds. . . and to do so here would be fla lyinconsistent with the 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.\u00a0 Thus, the OSHACO’s were not \”lawfully in a position,\” see Andreas, 463 U.S. at 771,to observe the conditions they observed during their warrantless inspection of the workarea described in the employee representative’s complaint.\u00a0 Instead, they weretrespassing in an area that was open only to the Respondents’ employees and closed off tothe general motoring public. Moreover, the observations of the CO’s were hardlyinadvertent.\u00a0 On the contrary, they went to the workplace for the express purpose ofinvestigating a complaint of unsafe working conditions and inspecting the work areadescribed in the complaint. In sum, we conclude that the \”plain view\” doctrinecannot be used to justify a three-day-long warrantless OSHA inspection conducted over theemployer’s clearly-stated objections and demands for a warrant.[[13]]Nevertheless, although we disagree with the judge’s reasoning,we agree with his ultimate conclusion that the warrantless inspection at issue here didnot violate the Fourth Amendment. Indeed, the Fourth Amendment did not even apply in thiscontext because the warrantless phase of the inspection fell within the Amendment’s\”open fields\” doctrine. Under the \”open fields\” doctrine:[A]n individual may not legitimately demand privacy foractivities conducted out of doors, in fields, except in the area immediately surroundingthe home [i.e., the \”curtilage,\” see infra note 14]…. This rule is true to theconception of the right of privacy embodied in the Fourth Amendment…….. There is no societal interest in protecting the privacy ofthose activities, such as the cultivation of crops, that occur in openfields….[Therefore,] the asserted expectation of privacy in open fields is not anexpectation 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 protecting the assertedprivacy of the highway rehabilitation activities that are at issue before us in theseproceedings.[[14]]We recognize, of course, that the area inspected during thewarrantless first phase of the inspection at issue here was not a field it all, but ratheran elevated section of interstate highway. Nevertheless, the work area can still beclassified as an \”open field\” for Fourth Amendment purposes: \”[T]he term’open fields’ may include any unoccupied or undeveloped area outside of the curtilage.\u00a0 An open field need be neither ‘open’ nor a ‘field’ as those terms are used incommon speech.\”\u00a0 Id., 466 U.S. at 180 n.11. See, e.g., UnitedStates v. Fahey, 769 F.2d 829 (1st Cir. 19.) (\”open fields\” doctrineapplied to mining site in open desert); Marbury, 732 F.2d at 398 (doctrineapplied to large tract 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 becauseit only \”permits a warrantless search upon property from which no effort has beenmade to exclude the public.\”\u00a0 We agree with the Secretary, however, that\”[i]t is only by ignoring extensive caselaw that such a statement could bemade.\”\u00a0 Thus, for example, in Dunn, supra note 11, the law enforcement agentsmade a warrantless entry onto a 198-acre ranch, crossing over the perimeter fence andthree interior fences, including a barbed-wire fence, in order to reach their vantagepoint where they could look into the interior of a barn.\u00a0 Nevertheless, the Courtheld that, under the \”open fields\” doctrine, there was no Fourth Amendmentviolation–even if it accepted the rancher’s argument that the barn was \”an essentialpart of his business.\”\u00a0 480 U.S. at 303-04.[[15]]\u00a0 See also AckermannEnterprises, Inc., supra note 13, 10 BNA OSHC at 1712, 1982 CCH OSHD at p. 32,839(\”There is no violation of fourth amendment rights when a government agent’sobservations 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,National and Tri-State) blocked its attempt to expand its inspection beyond the FortWashington Way work area, OSHA went into the United States District Court for the SouthernDistrict of Ohio, Western Division (hereafter \”the district court\”) to obtain anadministrative inspection warrant.\u00a0 OSHA sought authorization for a full-scope,comprehensive inspection of project 8.\u00a0 In support of this warrant application, OSHAfiled an affidavit executed by OSHA Compliance Officer William J. Wilkerson (\”COWilkerson\” or \”Wilkerson\”), a \”duly authorized [OSHA] agent,\” andfour attached exhibits, which we describe herein.Under the Supreme Court’s Barlow’s decision, theSecretary’s burden of proof. in seeking this full-scope inspection warrant, was toestablish \”administrative probable cause.\”\u00a0 This she could do by meetingeither of the Court’s two alternative tests–the \”specific evidence test\” or the\”administrative plan test\”: \”For purposes of an administrative search suchas this, probable cause justifying the issuance of a warrant may be based not only onspecific evidence of an existing violation but also on a showing that … a specificbusiness has been chosen for an OSHA search on the basis of a general administrative planfor the enforcement of the Act derived from neutral sources …… Barlow’s, 436U.S. at 320-21. Here, OSHA filed a hybrid warrant application that sought to justify afull-scope inspection of project 8 under either or both of the Court’s alternative tests.Specifically, the warrant application filed on May 9 reliedupon three primary factors as the basis of OSHA’s probable cause showing:(1) The Section 8(f)(1) Inspection. In paragraph 2 of hisaffidavit, CO Wilkerson informed the magistrate of OSHA’s receipt of the employeerepresentative’s complaint on May 4, 1989, and the resulting investigation of thatcomplaint, including the workplace inspection, on May 4, 5, and 8, 1989.\u00a0 A summaryof the complaint, see supra notes 6 & 7, was attached to the application asExhibit A. Wilkerson averred that OSHA’s complaint inspection had been required under theterms of section 8(f)(1) of the Act, 29 U.S.C. ? 657(f)(1), because OSHA had determinedthat: (1) \”[t]he complaint meets the requirements of Section 8(f)(1) of theAct,\” (2) \”the complaint alleges serious conditions that are Covered by 29 CFR1926.201, 29 CFR 1926-202, Section 5(a)(1) of the Act and other parts,\” see supranote 8, and (3) \”there are reasonable grounds to believe that such violationsexist or have existed during the last six months so as to require an inspection underSection 8(f)(1) of the Act.\”[[17]]Wilkerson also described the results of OSHA’s section 8(f)(1)inspection, as follows: The walkaround inspection, which included the hazards described inthe complaint, has resulted in the identification of an imminent danger safety hazard andthe immediate abatement of same.\u00a0 The additional safety hazards observed thusfar haveincluded:–improper use and storage of flammable gases,–failure to remove welding rods from cable clips,– inadequate protection of workers from moving vehiculartraffic.Finally, Wilkerson Informed the magistrate of the refusal ofJurgensen, National, and Tri-State to permit the inspection \”to continue\” and ofthe demand of these three employers that OSHA obtain an administrative inspection warrant.(2) The Administrative Plan.\u00a0 In paragraph 3 of hisaffidavits CO Wilkerson informed the magistrate of OSHA’s claim that its request for afull-scope administrative inspection warrant was being made pursuant to \”a generaladministrative plan for the enforcement of the Act derived from neutral sources\”within the meaning of Barlow’s.\u00a0 Specifically, Wilkerson averred that\”[t]he desired construction worksite inspection is also part of an inspection andinvestigation program designed to assure compliance with the Act, is authorized by Section8(a) of the Act, and is based upon injury rates experienced within certain designatedindustries.\”\u00a0 The magistrate was notified that \”[c]onstruction industries .. . are designated high rate industries due to their high injury and fatality rates\”and that OSHA’s request for a full-scope warrant was justified under the relevantprovisions of its administrative plan, which were attached as Exhibits B and D of thewarrant application.In particular, Wilkerson based this claim on the followingprovisions of the administrative plan, as set forth in section IX A.9. of the FOM:9. Scope of Inspection.\u00a0 The scope of complaintinspections shall be determined in accordance with the guidelines given in thissection….b. Construction and Longshoring Inspections.\u00a0 Theinspection of a complaint in the construction and Iongshoring industry shall normally he acomprehensive inspection unless a substantially complete inspection of the worksite hasbeen conducted within the last quarter.\u00a0 In that case the procedures in d. shallapplyd. Low-hazard Industry Complaint Inspections.\u00a0 [A]complaint inspection in a low-hazard industry shall generally be limited to workingsconditions identified in the complaint.\u00a0 If, however, the CSHO believes that thescope of the inspection should be expanded because of information indicating thelikelihood of serious hazards in other portions of the plant…the supervisor shall becontacted.\u00a0 A decision will then be made on the basis of the information that isavailable whether the inspection is to he extended.[[18]]3. Third-Party Consent.\u00a0 In paragraph 2 of hisaffidavit, Wilkerson informed the magistrate that OSHA had obtained third-party consentfor the desired inspection of project 8.[[19]]\u00a0 Specifically, Wilkerson averred thatrepresentatives of ODOT and of the FHWA had given their consent to an inspection of theentire project.\u00a0 This consent was obtained shortly after the representatives ofJurgensen, National, and Tri-State refused, on May 8, to permit the inspection to continuein the absence of a warrant.\u00a0 Wilkerson also implied that, due to federal funding ofproject 8, the contractors on the project were all bound by a contractual provision thatallowed OSHA to inspect the project for compliance with OSHA regulations.\u00a0 Attachedto the warrant application as Exhibit C was a copy of that contractual provision, whichprovided, as follows:When the United States Government pays all or any portion ofthe cost of a project, the Federal laws and rules and regulations made pursuant to suchlaws must be observed by the Contractor, and the work shall be subject to the inspectionof the appropriate Federal agency.2. National’s motion for a stayAlso on May 9, 1989, National instituted its own action in thedistrict court by filing a Motion for Stay of Inspection.\u00a0 In this motion, Nationalurged the court to \”stay\” OSHA from conducting an expanded, full-scopeinspection of project 8.\u00a0 Both the Secretary’s warrant application and National’smotion for a stay were assigned to U.S. Magistrate Jack Sherman. Jr.In its memorandum supporting the motion, National corroboratedCO Wilkerson’s statements that OSHA had received a complaint on May 4 concerning theinadequacy of traffic control measures on Fort Washington Way and had sent inspectors tothe worksite to investigate the complaint and inspect the work area.\u00a0 Nationalfurther informed the magistrate that OSHA had \”substantially completed\” itscomplaint inspection, but that it now plans to inspect the entire work zone, whichconsists of a very broad area of refurbishing construction, and to review matters otherthan those involved in traffic control.\”\u00a0 The employer indicated that it hadobjected from the outset to the section 8(f)(1) complaint inspection and that it was nowobjecting to OSHA’s attempt to expand the inspection.\u00a0 National emphasized that it\”had no responsibility\”‘ for the traffic control measures that were at issue inthe complaint since the \”procedures\” were designed by the state, approved by thefederal government, and implemented by Jurgensen, the general contractor.\u00a0 Itacknowledged, however, that its employees were working behind the traffic control devicesthat were the subject of the complaint.National also confirmed in its memorandum that \”theFederal government along with the State of Ohio is funding this refurbishing work.\”\u00a0 It therefore implicitly acknowledged that it was bound by the above quotedcontractual provision that the Secretary attached to her warrant application. \u00a0National contended, however, that OSHA was not the \”‘appropriate Federal agency\”to conduct inspections under that provision because \”Ohio inspectors\” were atthe worksite \”on a daily basis,\” at least in part for the purpose of reviewingsafety matters.\u00a0 Thus, it concluded, the federal government was using the state ofOhio to enforce \”the appropriate safety standards\”.Finally, National corroborated Wilkerson’s averment that OSHAhad obtained third-party consent to the requested expanded inspection:[I]t appears that OSHA has attained the approval of the FederalHighway Administration . . and the State of Ohio for its inspectors to enter the workzone.\u00a0 In this regard, it is relying on the jurisdiction that these agencies haveover the actual highway as well as the contract which subjects the work to a federalinspection.However, National contended that \”this consent does notand cannot extend to conducting an inspection beyond that permitted under the plain sightrules.\”\u00a0 See supra note 19.\u00a0 Therefore, in the event themagistrate did not issue the requested order prohibiting OSHA from expanding itsinspection, the employer alternatively urged him to limit OSHA \”to a plain sightinspection\” of the remainder of project 8.3. The warrantThe third key event that took place on May 9, 1989, wasMagistrate Sherman’s issuance of the full-scope administrative inspection warrantrequested by OSHA.\u00a0 The magistrate did not include any limitation on the scope of theauthorized inspection, such as the \”plain sight\” limitation sought by Nationalin its alternative argument.\u00a0 OSHA served the warrant the next day, and the secondphase of the OSHA inspection was therefore conducted pursuant to the authority granted bythe warrant.Beginning with the filing of her opposition to National’smotion for a stay, see supra note 18, the Secretary has consistently assertedthat Magistrate Sherman reviewed both her warrant application and National’s stay motionbefore issuing the challenged warrant.\u00a0 Nevertheless, despite several opportunitiesto dispute the Secretary’s claim, the Respondents have never taken issue with it. \u00a0Neither has Magistrate Sherman, although he also had the opportunity to challenge theaccuracy of the Secretary’s statement.\u00a0 Under these circumstances, we accept as factthat the magistrate reviewed National’s stay motion and supporting memorandum beforeissuing the challenged administrative inspection warrant.B. Judge’s Decision and Arguments of the PartiesIn their post-hearing brief, the Respondents argued before theALJ that OSHA had had no basis for even seeking a warrant to expand its inspection beyondthe matter raised and the area described in the section 8(f)(1) complaint.\u00a0 In theirview, OSHA’s inspection was completed when the CO determined on Monday, May 8, that thehazard described in the complaint had been fully abated.\u00a0 The Respondents alsoemphasized that the complaint had been directed against Jurgensen and not against eitherof them. Indeed.\u00a0 OSHA’s investigation had revealed that National and Tri-State werenot responsible for either designing or implementing the traffic control plan that was atthe heart of the problem.In his decision, the judge considered and rejected theRespondents’ position.\u00a0 He implicitly concluded that the Secretary, in her warrantapplication, had established \”administrative probable cause\” for a full-scopeinspection under either or both of the alternative tests set forth in Barlow’sthe \”specific evidence test\” and the \”administrative plan test.\”\u00a0 Specifically, the judge found that \”[t]he warrant application herein was basednot only on the plain view observation of the Compliance Officer of alleged violations …but [also] on a detailed explanation of the general inspection plan OSHA utilizes which isbased on neutral criteria.\”\u00a0 The judge concluded that \”there was validreason for the issuance of the warrant, and [therefore] there is no basis for suppressionof the evidence\” gathered under the warrant.On review, the Respondents restate the arguments that they madebefore the ALJ.\u00a0 In addition, they argue that there was \”no basis for citingTri-State for the conditions alleged in the complaint,\” as demonstrated by (1) thejudge’s decision to vacate the only citation Issued as a result of the section 8(f)(1)investigation, see supra note 12, and (2) CO Cannon’s opinion testimony thatneither 29 C.F.R. ? 1926.201 nor 29 C.F.R. ? 1926-202, see supra note 8, applied to theconditions described in that citation.\u00a0 [[20]] They further note that it was thegeneral contractor, and not the Respondents, who eventually abated the hazard described inthe section 8(F)( 1) complaint.The Secretary on review argues that the judge was correct inconcluding that the warrant issued on May 9, 1989, was valid.\u00a0 She focuses, however,on a number of alternative arguments that assertedly make it unnecessary for us to rule onthe validity of the warrant.[[21]]C. AnalysisWe conclude that the evidence gathered by OSHA during thesecond phase of its inspection of project 8 was gathered pursuant to a validadministrative inspection warrant, specifically, the warrant issued by Magistrate Shermanon May 9, 1989.\u00a0 The warrant was valid because OSHA’s warrant application establishedadministrative probable cause for a full-scope inspection under the Barlow’s\”specific evidence test.\”As detailed in Part ll A of this decision, supra, thewarrant application filed with the district court was a hybrid application; that is, OSHAattempted to establish administrative probable cause for a full-scope inspection undereither or both of the two alternative tests set forth in Barlow’s.\u00a0 Thus,the application provided the magistrate with \”specific evidence\” of violationsdiscovered during the course of the section 8(f)(1) inspection.\u00a0 It also presentedhim with OSHA’s claim that a full-scope inspection was authorized under a generaladministrative plan for enforcement of the Act, along with the facts that OSHA relied uponin selecting project 8 for a full-scope inspection under the terms of that plan.\u00a0 Inaddition, CO Wilkerson informed the magistrate of other matters-such as the contractualprovision authorizing inspections by \”appropriate\” federal authorities andOSHA’s obtaining of third-party consent to the expanded inspection–that were clearlyrelevant to the issues pending before the magistrate, but that did not fall neatly intoeither of the two Barlow’s tests.Because of the hybrid nature of this warrant application, weconclude that the cases now before are analogous to two other cases in which federalappellate courts have upheld full-scope administrative inspection warrants that wereissued in response to similar warrant applications.\u00a0 In re Cerro Copper Prods.,752 F.2d 280 (7th Cir. 1985); In re Inspection of Workplace (Carondelet Coke Corp.),741 F.2d 172 (8th Cir. 1984). In both Cerro Copper and Carondelet Coke,the Secretary argued that a full-scope inspection was justified under the terms of a\”general administrative plan for the enforcement of the Act derived from neutralsources\” within the meaning of Barlow’s. However, in neither of these casesdid the Secretary rely solely on her administrative plan. Instead, in both CerroCopper and Carondelet Coke, the Secretary provided the magistrate withsupplemental evidence to strengthen her claim that a full-scope inspection should beauthorized.Following the Secretary’s lead, the courts in both of thesecases examined the warrant applications under the Barlow’s \”specificevidence test\” rather than the Court’s \”administrative plan test.\” \u00a0Accordingly, the courts in both cases concluded that, under the specific facts of thecases then before them, a \”wall-to-wall inspection\” would not beunreasonable and therefore would not be in violation of the Fourth Amendment.\u00a0 SeeCerro Copper, 752 F.2d at 283; Carondelet Coke, 741 F.2d at 177. \u00a0Although the factors favoring a full-scope inspection in the cases now before us aredifferent from the factors that were considered by the Seventh and Eighth Circuits, wereach the same conclusion that those courts reached.\u00a0 We conclude that thecombination of factors set forth in the warrant application filed by OSHA on May 9,1989, established administrative probable cause for a full-scope inspection under the\”specific evidence test.\”Chief among those factors, in our view, was the third-partyconsent given by the project administrator (ODOT) and the FHWA for a full-scope inspectionof project 8.\u00a0 This consent was particularly significant here because (1) thecontractors were contractually obligated to comply with pertinent Federal laws, rules, andregulations, and (2) they had contractually subjected themselves to the possibility thatthese obligations might be enforced, through workplace inspections, by \”theappropriate Federal agency.\”\u00a0 The third-party consent that was given here wasgiven to OSHA, the federal agency with statutory authority to enforce workplace safety andhealth standards.\u00a0 In all likelihood, this was precisely the kind of inspection thatwas anticipated when this contractual provision was drafted and included in the governingcontracts.In any event, as the Respondents themselves conceded in theirarguments before Magistrate Sherman, this third-party consent was sufficient, even in theabsence of the warrant or even in the absence of the contractual provision, to authorizean OSHA inspection of all of the work areas in project 8 that were in \”plainsight\” of the OSHA inspectors.\u00a0 On the record created before us, we concludethat most of the inspected workplace (project 8) was in \”plain sight\” since thecontractors were performing their work primarily, if not exclusively, on elevated bridgesand highways.Nevertheless. as the Secretary conceded in her arguments beforethe magistrate, a warrant was necessary because OSHA did not intend to limit, andsubsequently did not limit, her expanded inspection to a viewing of conditions that werein plain sight.\u00a0 For example, several of the contested citation items at issue inboth Docket No. 89-2611 and Docket No. 89-2705 were based on information that CO Cannonobtained as the result of his exhaustive examination of records and documents (e.g.,material safety data sheets) that were maintained by National and Tri-State in theiroffice trailer.OSHA therefore supplemented its showing of administrativeprobable cause by also establishing that a full-scope inspection was called for under theprovisions of a general administrative plan for the enforcement of the Act.[[22]] \u00a0Indeed, as the Secretary pointed out to the magistrate, see supra note 18, afull-scope inspection would have been justified even if the Respondents had been part of a\”low-hazard industry.\”\u00a0 Under the terms of the Secretary’s then-effectiveadministrative plan, a section 8(f)(1) complaint inspection in a low-hazard industry couldbe expanded to cover the entire worksite if the complaint inspection led to\”information indicating the likelihood of serious hazards in other portions of the[workplace].\”Here, we conclude that OSHA’s three-day complaint inspectionand investigation provided it with ample reason to believe that it was likely to discoverother serious hazards in other project 8 work areas.\u00a0 To begin with the investigatingCO’s determined almost immediately that the section 8(f)(1) complaint was meritorious.\u00a0 Indeed, CO Cannon believed that the conditions described in the complaint andconfirmed by his inspection and investigation constituted not only a serious violation ofsection 5(a)(1) of the Act, but also an imminent danger to the exposed employees. Inaddition, his investigation disclosed that the employees had been repeatedly exposed tothis imminent danger for a week prior to OSHA’s arrival on the scene, despite the factthat the hazard was recognized as such by everyone involved from the first day that itarose.\u00a0 Also, it took several more days after OSHA’s arrival before abatement wasfinally accomplished.\u00a0 Finally, although the work area inspected during the section8(f)(1) investigation was relatively small, OSHA observed other serious hazards inaddition to the imminent danger.Therefore, even if the section 8(f)(1) inspection had beenconducted in a \”low-hazard industry,\” the limited inspection would have providedOSHA with sufficient grounds to justify an expansion of the inspection to the entireworkplace.\u00a0 Here, however, the inspection was not in a low-hazard industry. Instead,the workplace was a large, multi-employer construction project. Accordingly, CO Wilkersoninformed the magistrate that construction industries are \”high rate industries due totheir high injury and fatality rates\” and that OSHA’s then-effective administrativeplan provided that section 8(f)(1) inspections of such construction worksites\”normally\” would be \”‘comprehensive\” or full-scope inspections of theentire worksite.In their arguments on review, the Respondents do not directlyattack the sufficiency of the Secretary’s probable cause showing.\u00a0 Instead, theyargue that the Secretary acted in bad faith in seeking an expanded inspection and suggestthat, if the magistrate had been given an accurate description of OSHA’s section 8(f)(1)inspection, he would have concluded that no warrant at all was justified, let alone awarrant authorizing a comprehensive inspection of the entire workplace.We disagree.\u00a0 The matters deemed critical by the Respondents do not undercut theSecretary’s showing of administrative probable cause for a full-scope inspection. \u00a0For example, the Respondents emphasize that the hazard described in the employeerepresentative’s complaint was fully abated to OSHA’s satisfaction before OSHA went intothe district court to obtain an administrative inspection warrant.\u00a0 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, and pressurefrom OSHA–to attain abatement of this imminent danger hazard.The Respondents also stress the issue of responsibility for thetraffic control hazard, including the question of who had the ability to abate. \u00a0However, these matters were essentially irrelevant to the magistrate in determiningwhether to grant OSHA’s request for authority to conduct a full-scope inspection ofproject 8.\u00a0 The warrant sought and obtained by OSHA in no way targeted National orTri-State or any other particular contractor working on the project.\u00a0 The relevantfact from the viewpoint of OSHA in seeking the warrant and the magistrate in issuing thewarrant was the fact that workers were exposed to hazards that appeared to be in violationof the Act, not the fact that any particular contractor or governmental entity was\”responsible\” for the exposure or for abatement of the hazard.[[23]]Finally, the Respondents point to the \”fact\”‘ thatOSHA had \”no basis for citing Tri-State for the conditions alleged in thecomplaint.\”\u00a0 This argument, however, misstates the record in several importantrespects.\u00a0 For example, the Respondents emphasize the \”concession\” of COCannon that neither ? 1926.201 nor ? 1926.202 applied to the cited working conditions,but they ignore the fact that the citation issued to Tri-State did not allege a violationof either of these two standards. Instead, the citation issued following OSHA’s section8(f)(1) inspection and investigation alleged that Tri-State violated section 5(a)(1) ofthe Act.\u00a0 See supra note 12.\u00a0 Thus, except for the allegation ofwillfulness, the Secretary’s original charge was fully consistent with theinvestigating compliance officer’s views of the case, i.e., that Tri-State’semployees were exposed to an imminent danger, that these employees were exposed toconditions in violation of the Act’s general duty clause, and that ?? 1926.201 and1926-202 were not applicable to the conditions that he observed.\u00a0 Furthermore, theALJ’s decision does not conflict with CO Cannon’s views.\u00a0 The judge expressed noopinion as the validity of the Secretary’s original charge, holding only that theSecretary had failed to prove noncompliance with the specific provisions of the two OSHAstandards cited in her amended charge.Contrary to the arguments of the Respondents, OSHA had amplereason on May 8 and 9, 1989, for seeking to expand the scope of its inspection, and itacted in good faith in applying for a full-scope administrative inspection warrant. \u00a0Since OSHA’s warrant application supplied the magistrate with administrative probablecause to support the issuance of such a warrant under the Barlow’s \”specificevidence test,\” the warrant issued by Magistrate Sherman was valid, and the evidencegathered pursuant to that warrant cannot be suppressed on Fourth Amendment grounds.Ill. THE CHALLENGE TO THE WILKERSON AFFIDAVITA. BackgroundTri-State and National raised their Fourth Amendment defensebefore the Commission when they filed their answers, in Docket Nos. 89-2611 and 89-2705,respectively.\u00a0 After these cases were consolidated by order of the ALJ, on December28, 1989, the Respondents sought to follow up on their defense by conducting discoverydepositions of CO Cannon, Area Director Murphy, and CO Wilkerson.\u00a0 The Secretaryconsented to the taking of the Cannon and Murphy depositions, but refused to allow thedeposition of CO Wilkerson.\u00a0 Thus, for example, in a February 8, 1990 letter, theSecretary’s counsel responded to a request from the Respondents’ counsel, as follows:We will object to the taking of Mr. William J. Wilkerson’sdeposition because his only involvement in the cases related to the application for thewarrant.\u00a0 An evidentiary hearing on a warrant can only be conducted under Franksv. Delaware, 438 U.S. 154, 171-172 (1978), upon a \”substantial preliminaryshowing\” that the warrant application contains false statements that are madeknowingly and intentionally, or made with a reckless disregard for the truth. \u00a0Respondents have made no showing in the subject cases and are therefore not entitled todiscovery or an evidentiary hearing on warrant issues.The reference in the Secretary’s letter is to the followingpassage from the decision of the United States Supreme Court in the Franks case:There is, of course, a presumption of validity with respect tothe affidavit supporting the search warrant.\u00a0 To mandate an evidentiary hearing, thechallenger’s attack must be more than conclusory and must be supported by more than a meredesire to cross-examine.\u00a0 There must be allegations of deliberate falsehood or ofreckless disregard for the truth, and those allegations must be accompanied by an offer ofproof…Allegations of negligence or innocent mistake are insufficient….Finally, ifthese requirements are met, and if, when material that is the subject of the allegedfalsity or deliberate disregard is set to one side, there remains sufficient content inthe warrant affidavit to support a finding of probable cause, no hearing is required.438 U.S. at 171.On March 13, 1990, the Respondents began taking the depositionof CO Cannon.\u00a0 (The two-day deposition was finished on May 15, 1990.)\u00a0 On April10, 1990, the Respondent’s counsel again wrote to the Secretary’s counsel requesting anopportunity to take the deposition of CO Wilkerson.\u00a0 Citing the Franks case,the Respondents in effect asserted that they were able to make the \”substantialpreliminary showing\” required under that decision:From the information which has been developed during Mr.Cannon’s deposition, it appears clear that the Warrant Application signed by Mr. Wilkinson(sic) contained false statements in a number of important respects.\u00a0 Accordingly,National Engineering and Tri-State are entitled to probe the basis for his statements inthat application.When the Secretary again refused to consent to the deposition,the Respondents filed a motion with the ALJ to compel this discovery.\u00a0 Followingthrough on their stated intention, the Respondents based their preliminary showing underFranks on alleged inconsistencies between CO Cannon’s deposition testimony and thestatements of CO Wilkerson in his warrant application affidavit.\u00a0 The Secretaryopposed the motion, arguing that the Respondents had not met their burden under Franks.On July 13, 1990, the judge issued his order denying theRespondents’ motion to take the deposition of CO Wilkerson.\u00a0 He held that theRespondents had not met their burden of proof under Franks because \”[n]osubstantial preliminary showing was made that a false statement was intentionally orrecklessly made by Wilkerson and that such false statement was necessary to the finding ofprobable cause.\”B. AnalysisWe conclude that the judge correctly decided this issue. \u00a0Under Franks, the Respondents had the burden of proving that the warrantaffidavit included (1) false statements (2) that were knowingly or intentionally made ormade with reckless disregard for the truth and (3) that were necessary to the magistrate’sfinding of administrative probable cause.\u00a0 For the reasons that follow, we hold thatnone of the statements by Wilkerson that the Respondents have challenged meet all three ofthese tests. We therefore agree with the judge that the Respondents failed to make the\”‘substantial preliminary showing\” that would have entitled them to conductdiscovery into the underlying basis, the accuracy, or the completeness of the warrantaffidavit.The first challenged statement in the warrant affidavit relatesto the events of May 4, 1989, the first day of OSHA’s section 8(f)(1) inspection:\”After conducting an opening conference with the general contractor on the projectthe formal walkaround commenced.\”\u00a0 The Respondents assert that this statement is\”untrue\” because \”[t]he opening conference did not occur until Monday, May8, 1989, and the walkaround inspection did not occur until the following day, Tuesday, May9, 1989.\”The discrepancy in the dates is easily explained by pointingout that the inspection at issue occurred in two phases: the warrantless first phase thatwas limited to the area described in the section 8(f)(1) complaint and the expanded secondphase that was conducted pursuant to the warrant and that included all of project 8.Wilkerson’s statement in the affidavit refers to the first phase of the inspection, whilethe Respondents’ assertions relate.\u00a0 albeit inaccurately, to the second phase.[[24]]However, even after this confusion is cleared up, it is stillevident, as the Secretary has conceded, that the challenged statement in the warrant isinaccurate.\u00a0 While CO Cannon met with representatives of the general contractor onMay 4–both at the work area described in the section 8(f)(1) complaint and in Jurgensen’soffice trailer after he left the work area–his abbreviated opening conference was withrepresentatives of National and Tri-State rather than representatives of Jurgensen. \u00a0Moreover, it is probably stretching the facts to describe the events of May 4 as a\”formal walkaround.\” See Part 1A, supra.Nevertheless, we agree with the Secretary that the inaccuraciesin this quoted affidavit statement are more likely the result of confusion over whichemployer was involved in the section 8(f)(1) complaint than an indication of a deliberateattempt to present false evidence or of a reckless disregard for the truth.\u00a0 Theemployee representative’s complaint was directed against Jurgensen, the generalcontractor.\u00a0 However, when the CO’s arrived, they discovered that only employees ofTri-State were exposed to the imminent danger hazard described in the complaint.\u00a0 Itwas for this reason that the abbreviated opening conference was held with representativesof Tri-State and National rather than representatives of Jurgensen.In any event, even if we were to conclude that the misstatementwas deliberate, we have no difficulty in further concluding that it does not meetthe third part of the Franks test, i.e., it was not a statement that wasnecessary to the magistrate’s determination of administrative probable cause.\u00a0 On thecontrary, as we noted previously, the question of which employer was responsible for thehazardous conditions described in the employee representative’s complaint was essentiallyirrelevant to the magistrate’s determination of administrative probable cause because theSecretary was seeking authorization for an inspection that would cover all contractorsworking on project 8, without regard to their responsibility for the imminent dangerhazard.\u00a0 It therefore follows that such matters as which contractors OSHA held itsopening conference with and when it began its formal walkaround inspection were equallyirrelevant to the magistrate.The second challenged statement in the warrant affidavit is thestatement we have quoted in Part IIA1 of this decision, supra, concerning thehazards observed by OSHA during its limited section 8(f)(1) inspection.\u00a0 Part of theRespondents’ reasoning can be easily dismissed since the argument makes no sense. \u00a0The Respondents claim that 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 to remove weldingrods from welding cable clips, [and] inadequate protection of workers from movingvehicular traffic\”—during the first phase of the inspection, as alleged in theaffidavit.\u00a0 Rather, these conditions were not observed until the second phase of theInspection.[[25]]\u00a0 However, the Respondents offer no explanation as to how thewarrant affidavit, which was filed on May 9, 1989, could have included a description ofconditions that were not observed until the second phase of the inspection, which began onMay 10.\u00a0 This matter is cleared up by a closer reading of the deposition testimonythat the Respondents rely upon.\u00a0 That testimony does not relate at all to the hazardsdescribed in the warrant affidavit, but rather to the hazards described in certaincontested citation items that were based on the CO’s observations during the second phaseof the inspection.The more serious charge by the Respondents concerning thechallenged statement is the claim that the magistrate was misled by material omissionsfrom the affidavit, specifically, Wilkerson alleged failure to Inform the magistrate\”that the condition for which [OSHA] was summoned to the worksite had already beencompletely examined [and abated] and that it now wished to expand its inspection beyondthe contours of that matter.\”\u00a0 At the outset, we find that there was no intenton Wilkerson’s part to deceive the magistrate on these matters.\u00a0 Thus the affidavitforthrightly stated that \”[t]he walkaround inspection, which included the hazardsdescribed in the complaint, has resulted in the identification of an imminent dangersafety hazard and the immediate abatement of same\” (emphasis added). \u00a0It is unfortunate that the affidavit was not more clear in apprising the magistrate thatthe hazard described in the complaint and the imminent danger situation observed by the COwere the same hazard.\u00a0 But the inclusion of the above-quoted statement in theaffidavit precludes us from finding any intentional misrepresentation or recklessdisregard for the truth on the part of Wilkerson.\u00a0 Similarly, while the affidavitmight have been more clear in informing the magistrate that the inspection of the areadescribed in the employee representative’s complaint had basically been completed and thatOSHA’s intent was therefore to seek a geographic expansion of its inspection, we cannotconclude that the affidavit was misleading with respect to these matters.\u00a0 On thecontrary, the most logical inference to be drawn from the information that was provided tothe magistrate was that 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 compensated for in National’smotion for stay of the inspection.\u00a0 As we have detailed in Part IIA2 of thisdecision, supra, National’s motion fully informed the magistrate of all thosematters it emphasizes in its arguments before us–the completion of the section 8(f)(1)inspection abatement of the hazard described in the complaint, and the Secretary’s intentto expand the scope of the inspection.\u00a0 Since the magistrate read and consideredNational’s motion before issuing the warrant in question, we cannot conclude that thealleged omissions in the warrant application had any effect on his determination ofadministrative probable cause.The Respondents’ next argument borders on the frivolous. \u00a0They challenge Wilkerson’s statement that CO Cannon returned to the Fort Washington Waywork area on May 5 and 8, 1989, \”to continue [his] walkaround.\”\u00a0 On thisrecord, it is undisputed that Cannon did return to this work area on both May 5 and May 8to continue his investigation of the section 8(f)(1) complaint and as part of his ongoingeffort to obtain abatement of the hazard.\u00a0 Whether or not these worksite visits weretechnically part of the CO’s \”walkaround\” was totally irrelevant to themagistrate’s determination of administrative probable cause.The Respondent’s next challenge is more substantive, althoughwe conclude it also is without merit.\u00a0 The Respondents attack Wilkerson’s statementthat CO Cannon was \”informed on May 8th by representatives of… [Jurgensen, Nationaland Tri-State] that the inspection would not be permitted to continue and an inspectionwarrant would be required.\”\u00a0 At the outset, we observe that this challengedstatement is a true statement.\u00a0 Nevertheless, the Respondents correctly point outthat, when taken in context, the statement could be construed as a false claim that theobjections raised on May 8 were the first objectors to the OSHA inspection.\u00a0 Theaffidavit makes no mention of prior objections, although the record establishes that theRespondents’ counsel had demanded a warrant on May 4, approximately an hour after OSHAfirst arrived at the worksite.Here again, however, we cannot conclude that the magistrate’sdetermination of administrative probable cause was affected by the omission of thisinformation from the warrant affidavit.\u00a0 National’s motion, which was considered bythe magistrate before he issued the warrant clearly informed him that National hadobjected to the limited section 8(f)(1) inspection as well as to OSHA’s attempt to expandthe inspection beyond the limits of the area described in the employee representative’scomplaint.Finally, the Respondents challenge the statement in Wilkerson’saffidavit concerning OSHA’s determination that the employee representative’s complaintdescribed conditions in violation of the Act. See supra note 8.\u00a0 TheRespondents challenge this statement on the basis of CO Cannon’s deposition testimonythat, in his opinion, the conditions he observed at the workplace were not in violation ofeither 29 C.F.R. ? 1926,201 or 29 C.F.R. ? 1926.202 because neither of those standardsapplied.This challenge also fails to meet the Franks test.\u00a0 Indeed, the Respondents have failed to make the threshold showing that thestatement is false.\u00a0 They ignore the fact that the statement is expressed asWilkerson’s personal opinion: \”In my opinion as an experienced safety and healthinvestigator the complaint alleges serious conditions that are covered by 29 CFR1926.201, 29 CFR 1926.202, Section 5(a)(1) of the Act and other parts\” (emphasesadded).\u00a0 Such a statement cannot be contradicted by CO Cannon’s testimony as to hispersonal opinion, which may have been different from Wilkerson’s.\u00a0 At moist,therefore, the Respondents have shown a difference of opinion between two OSHA complianceofficers over the applicability of two OSHA standards.[[26]]For the reasons stated above, we conclude that none of thestatements in Wilkerson’s affidavit that have been challenged by the Respondents meets thethree-part test we set forth above: (1) a false statement (2) that was knowingly orintentionally made or made with reckless disregard for the truth and (3) that wasnecessary to the magistrate’s finding of administrative probable cause. We thereforeaffirm the judge’s ruling denying the Respondents motion to take the deposition of COWilkerson on the 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 acontested citation item in Docket No. 89-2705. Citation no. 1, Item 9, in that casealleges that the Respondent National violated 29 C.F.R. ? l926-500(d)(1) at threeseparate locations, within the scope of project 8. In his decision, the ALJ affirmed thisitem as a serious, violation of the Act and assessed a penalty of $350.\u00a0 However, forthe reasons stated herein, we conclude that the cited standard does not apply to the citedconditions.\u00a0 We therefore reverse the judge and vacate the citation item.The three incidents identified in the record as the basis ofthis alleged violation each involved employees of National who were working near the edgesof bridges or ramps that were used as interchanges between interstate highways.\u00a0 Ineach instance, the employees were working within a few feet of the edge of the bridge.\u00a0 Only a 20- to 29-inch-high concrete wall or \”parapet\” stood between theemployees and a fall of 15 or 20 feet to the city streets below.\u00a0 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 orramps in question had protective barriers on each side of them.\u00a0 These barriersconsisted of an 8-inch-high sidewalk or curb, which was adjacent to a 21-inch-high parapetwall, which in turn was topped by a 12-inch-high pipe railing.\u00a0 (Thus, the railingwas 41 inches above the surface of the roadway).\u00a0 Part of National’s responsibilityunder its contract with Jurgensen was to reconstruct these protective barriers.\u00a0 Thisinvolved removal of the pipe railing, removal of the sidewalk or curb, and finallybuilding up the concrete wall to a height of 42 inches.\u00a0 The \”old\” parapetwas not destroyed in this process, but rather remained in place as a protective barrierthroughout.At the time of the alleged violation, the pipe railing had beenremoved in each of the cited locations, and the sidewalk or curb had been partiallyremoved.\u00a0 Thus, depending on whether an employee was standing on the roadway or onthe sidewalk\/curb, he or she was working next to a concrete parapet that was either 29 or21 inches high.\u00a0 In one instance, an employee was actually standing on the parapetwall drilling holes into it (apparently for reinforcing bars, in preparation for thepouring of concrete).\u00a0 However, that employee was protected by a safety belt. \u00a0None of the other employees observed by the CO was similarly protected.The cited standard is contained in Subpart M–Floor and WallOpenings, of Part 1926. It provides, as follows:? 1926.500 Guardrails, handrails, and covers.(d) Guarding of open-sided floors, platforms, and runways.\u00a0\u00a0 (1) Every open-sided floor or platform 6 feet or more above adjacent floor orground level shall be guarded by a standard railing or the equivalent, as specified inparagraph (f)(1)(i) of this section, on all open sides, except where there is entrance toa ramp, stairway, or fixed ladder.\u00a0 The railing shall be provided with a standardtoeboard wherever, beneath the open sides, persons can pass, or there is moving machinery,or there is equipment with which falling materials could create a hazard.In his testimony concerning item 9, CO Cannon suggested twopossible means of eliminating the cited fall hazard.\u00a0 First, he pointed out a deviceshown in one of the photographic exhibits.\u00a0 The device, which appears to be a sheetof plywood attached to the parapet wall, has the effect of extending the parapet wall to aheight well above the employees’ head level.\u00a0 Cannon identified the purpose of thedevice as the prevention of chips falling over the edge of the bridge onto the citystreets below.\u00a0 However, he claimed that it could also serve the same function as aguardrail in protecting workers against falls.\u00a0 The CO’s other suggested abatementmethod was the use of safety belts and lifelines.\u00a0 He did not even suggest, however,that standard guardrails or their equivalent–the method of abatement specified in thecited standard–could have been used to protect the employees at issue.On review, National presents two arguments against the judge’sdecision to affirm this citation item:First, the standard itself is not applicable to this situation.\u00a0 The interstate highway, with its existing parapet wall, was not an open-sided flooror platform….Alternatively, even were this work area considered an open-sided floor orplatform, the existing and, thereafter, reconstituted concrete parapet wall served thepurpose of an equivalent 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 findit unnecessary to reach the second.Specifically, we agree with National that the paved interstatehighway ramps or bridges with 29-inch-high concrete parapet walls on each side of themwere not \”open-sided floors\” within the meaning of the cited standard.\u00a0 Wetherefore vacate citation no. 1. item 9 on the ground that the cited standard does notapply to the cited working conditions.\u00a0 In so ruling, we rely upon the plain meaningof the standard’s terms.In other cases arising under this same standard, federalappellate courts have reminded the Commission of our responsibility to interpret and applyOSHA standards in accordance with the plain meaning of their terms.\u00a0 In particular,in those cases, the courts held that it was error for the Commission to apply section1926.500(d)(1) to open-sided roofs because a roof is not a \”floor.\” DiamondRoofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976); Langer Roofing & SheetMetal, Inc. v. Secretary, 524 F.2d 1337 (7th Cir. 1975).\u00a0 Applying this samereasoning in the case now before us, we conclude that a paved interstate highway withconcrete parapet walls on each side of it similarly cannot be characterized as an\”open-sided floor.\”The Secretary responds to this reasoning by pointing to theCommission’s decision in Pace Constr. Corp., 14 BNA OSHC 2216,1991 CCH OSHD ? 29,333 (No.86-758.1991).\u00a0 In that case, we concluded that employees working on a balcony of amulti-storied building that was still under construction were working on an\”open-sided floor\” within the meaning of ? 1926.500(d)(1), the same standardthat is at issue here.\u00a0 In reaching this conclusion, we relied upon dictionarydefinitions that specifically included the \”floor of a bridge\” within themeaning of the term \”floor.\”\u00a0 Id., 14 BNA OSHC at 2222, 1991 CCHOSHD at p. 39,431.\u00a0 We did not intend to suggest, however, that the term\”floor\”‘ as used in ? 1926-500(d)(1) includes the surface of a bridge that iscovered by a paved interstate highway.\u00a0 Nor is it likely that the sources we reliedupon intended such a result.\u00a0 In any event, even if we could get over this hurdle toacceptance of the Secretary’s position, we could not conclude that the roadways at issuewere \”open-sided\” within the meaning of the standard.The Secretary would have us disregard the fact that the workersin question were at all times working next to concrete walls that were either 29 or 21inches above the surfaces on which they were standing.\u00a0 She seeks to draw an analogybetween this situation and other cases in which the Commission held in effect that atrenching contractor could not escape coverage under the then-effective trenchingregulations by improperly sloping a trench: \”[The argument that the working surfacesat issue were not ‘open-sided’ because they were bordered by parapet walls] makes no moresense than the argument, consistently rejected by the Commission, that under the formertrenching standard, a trench’s width was measured at its top, the result being that as atrench was sloped back to comply with the standard, it would likely become wider than deepand thus cease being subject to that standard.\”This analogy is not persuasive.\u00a0 The situation before usis not one in which an employer has installed an inadequate, 29-inch-high barrier and thenattempted to argue that the Secretary cannot cite ? 1926.500(d)(1) because the\”floor\” is no longer \”open-sided.\”\u00a0 Instead, when Nationalarrived at the worksite, it found a fully-completed section of interstate highway, next towhich a sidewalk or curb with adjacent parapet and guardrails had been installed. \u00a0National’s contractual responsibility included \”rehabilitating\”‘ this oldbarrier so that, in its \”recontoured\” form, the concrete wall itself would be 42inches high and the old pipe railing guardrails would no longer be necessary.As indicated, OSHA has not even attempted to establish thatNational could have protected its employees during this construction process by puttingup, on the sides of the bridges, \”a standard railing or the equivalent\” withinthe meaning of ? 1926.500(d)(1).\u00a0 Instead, it has relied solely on other possiblemeasures that might have been taken to protect the employees.\u00a0 In our view, thisfailure to even mention the installation of standard guardrails as an abatement methodprovides further support for National’s contention, and our conclusion, that the Secretaryis attempting to enforce this standard in a situation it was never intended or designed tocover.\u00a0 Cf. Spancrete Northeast, Inc. v. OSHRC, 905 F.2d 589 (2d Cir. 1990)(court concludes ALJ erred in affirming alleged violation of ? 1926. 900(d)(1) based onemployer’s failure to provide safety belts).V. ORDERFor the reasons stated, we affirm the judge’s rulings on theFourth Amendment issues that are before us.\u00a0 Specifically, we affirm his rejection ofthe Respondents’ Fourth Amendment defense on the ground that neither the warrantless firstphase of the OSHA inspection nor the expanded second phase, which was conducted pursuantto a valid warrant, violated the Respondents’ Fourth Amendment rights.\u00a0 We alsoaffirm the judge’s denial of the Respondents’ motion to take the deposition of COWilkerson.\u00a0 We reverse, however, the judge’s conclusion that the Respondent Nationalviolated 29 C.F.R. ? 1926.500(d)(1).\u00a0 We vacate citation No. 1. item 9, in DocketNo. 89-2705.Edwin G. Foulke, Jr.ChairmanDonald G.Wiseman CommissionerVelma MontoyaCommissionerDated: September 30, 1992SECRETARY 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 Labor Cleveland, OhioFor the Complainant, KENT W. SEIFRIED, ESQUIRE Holbrook & PostonCincinnati, OhioFor the Respondent. DECISION AND ORDERSOMMER, JUDGE:This proceeding arises under the Occupational Safety and HealthAct of 1970 (29 U.S.C. Section 651 et seq., hereafter called the \”Act\”).\u00a0 Respondents Tri-State Steel Corporation, Inc. (Tri-State), and National Engineering& Contracting Company (National), were engaged in bridge reconstruction work let bythe Ohio Department of Transportation on Interstates 74 and 75 and Fort Washington Way inCincinnati, Ohio.\u00a0 These cases were docketed under Commission Docket Nos. 89-2611(Tri-State) and 89-2705 (National).\u00a0 The two cases were consolidated for purposes oftrial. Hearings were held in Cincinnati, Ohio, from August 14-16, 1990.\u00a0 Both partieswere represented by counsel who filed post-hearing briefs.Tri-State was issued a serious citation containing six itemsand a willful citation containing one item.\u00a0 Prior to the hearing the Secretaryamended the willful violation, 3(a)(1), to a serious violation and alleged a violation of29 C.F.R. ? 1926.201(a)(1) or in the alternative 29 C.F.R. ? 1926.202. Item two of theserious citation was amended 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, awillful citation containing one item, and an \”other than serious\” citationcontaining one item.\u00a0 Prior to the hearing the Secretary amended the willfulviolation, 5(a) (1), in citation no. 2 to a serious violation of 29 C.F.R. 201(a) (1) or,in the alternative 29 C.F.R. ? 1926.202.\u00a0 In both the National and Tri-State casesthe penalties for the violation amended from willful to serious were reduced from $9,000to $1,000. At the hearing, the Secretary amended National citation No. 1 by withdrawingitem 4(a), and by modifying item 8 from a violation of 29 C.F.R. ? 1926.152(d)(2) to aviolation of 29 C.F.R. ? 1926.152(g) (11). BACKGROUNDRespondent’s National Engineering & Contracting Company andTri-State Steel Construction, Inc. are Ohio Corporations engaged in the constructionbusiness.\u00a0\u00a0 Tri- State is a subsidiary of National.\u00a0 Both Respondents weresubcontractors engaged in bridge reconstruction work on Ft. Washington Way in downtownCincinnati.\u00a0 The John R. Jurgensen Company was the prime contractor on this job whichwas let by the Department of Transportation of the State of Ohio (ODOT).\u00a0 Pursuant toa complaint filed (with the Cincinnati area office of OSHA), alleging hazardous conditionsarising from vehicular traffic, Complaince Officer Cannon proceeded to the worksite on May4, 1989, to make an inspection.\u00a0 His presence without a warrant was objected to byRespondent.\u00a0 During May 1989, he spent some time in this area observing trafficconditions. On May , 1989, OSHA obtained a warrant for inspection of the entire workingarea.\u00a0 As a result of the inspection, both National and Tri-State were issued seriouscitations which are involved here (one other than serious citation with no penalty wasissued against National).\u00a0 A serious violation exits when \”there is asubstantial probability 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 -SUPPRESSION OF EVIDENCERespondents National and Tri-State were subcontractors on abridge reconstruction job located in downtown Cincinnati.\u00a0 In response to a complaintthat there was a hazard present due to traffic passing through the work area located onCompliance Officer Cannon went to the inspect the premises.\u00a0 Ironworkers were workingon the bridge and barrels had been placed on the roadway to separate the work area fromthe travel zone.\u00a0 The Compliance Officer parked his vehicle behind the barrels andidentified himself to Respondent’s supervisory personnel and stated the purpose of hisvisit.\u00a0 There was an objection made to his inspection without a warrant, but heproceeded stating none was needed on a public road.\u00a0 His inspection resulted in theissuance of a citation to both parties alleging a violation of 29 C.F.R. ?? 1926.201 (a)and 202.\u00a0 (Signaling and Barricades).\u00a0 Respondents contend the evidence fromthis inspection should be suppressed since a warrantless, nonconsensual inspection wasmade relying on Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978).\u00a0 Thisreliance to misplaced.Firstly, the area inspected was a public highway, beingtraveled throughout the inspection.\u00a0 Merely placing barrels on a part of the highwayto direct the traffic and separate the workmen from the vehicular activity did not changethe nature of the public traffic artery.\u00a0 The observations of the Compliance Officerof conditions which existed were in plain view of all who drove through the area; theobservations he made on the highway after parking his vehicle which were in plain view ofall was not a constitutional violation.\u00a0 See Stephenson Enter, Inc., v. Marshall,578 F.2d 1021 (5th Cir. 1978); Moreover, there was no \” expectation of privacy\”in the highway activity being observed.\u00a0 U.S. v. 448, 100 S. Ct. 2547, 65 L. Ed. 2d619 (1980).\u00a0 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 thewarrant which allowed the compliance officer to inspect other areas of the work site.\u00a0 Marshall v. Barlow’s, Inc., 436 U.S.307, 98 S.Ct. 1816, 56 L.Ed. 2d 305, 6BNA OSHC 1571 (1978) held that safety and health inspections by OSHA must be conductedpursuant to a warrant to comply with the probable cause requirement of the FourthAmendment. \”Probable cause will be found to support an OSHA warrantif the warrant application supports a reasonable belief or leads to a reasonable suspicionthat the OSH Act or its regulations have been violated. \”\u00a0 See Secretary.ofLabor v. Midwest Instruments Co., 14 BNA 1569, 15571 (No 89-2019.1990).The warrant application herein was based not only on the plainview observation of the Compliance officer of alleged violations, see StephensonEnterprises, Inc. v. Marshall, supra., but on a detailed explanation of the generalinspection plan OSHA utilizes which is based on neutral criteria.\u00a0 See I, 1n ReEstablishment inspection of Trinity Industries, Inc. 14 BNA OSHC 1531 (Nos. 89-1113,99-1389, 89-1494, 1990).Accordingly, it is concluded there was valid reason for theissuance of the 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 orimplemented a written 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 availableat the time of inspection.Section 1926.59(e)(1) provides:(e) Written hazard communication program. (1) Employersshall develop, implement, and maintain at the workplace, a written hazard communicationprogram for their workplaces which at least describes how the criteria specified inparagraphs (f), (g), and (h) of this section for labels and other forms of warning,material safety data sheets, and employee information and training will be met …Citation No. 1, Item (b) alleges:The written hazard communication program did not include acomplete list of the hazardous chemicals known to be present using an identity that Isreferenced on the appropriate material safety date shoot (the list may be compiled for theworkplace as a whole or for individual work areas):(a) There was no list of hazardous chemicals on site at thetime of the inspection for such materials as Atom Arc and Arcair welding electrode.The standard at issue, 29 C.F.R. ? 1926.59 requires employersto \”develop, implement and maintain\” a written hazard communication programwhich describes the employer’s methodology for labels and other warning concerninghazardous materials; providing material safety data sheets, and the training of employees.Cannon, the Compliance Officer testified that he found nowritten hazard communication program in effect solely for Tri-State.\u00a0 National didhave such a program in use.\u00a0 (T-212) However, the evidence demonstrates thatTri-State is a subsidiary of National and both use the same program. Cannon admitted bothcompanies have the same safety and loss control officer, use the same trailer where thehazard program was situated, and share the same supervisory personnel. (T-439) He did notcite National for violating 59 (e)(1) stating \”what National Engineering had in theirtrailer was sufficient. . .\” (T- 443) The evidence is persuasive that both shared thesame program – granted that National did not violate the standard at issue, neither didTri-Steel.\u00a0 The Secretary has not sustained her burden of proof as to a violation of59(e)(1).\u00a0 The violation 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 chemicals known to be presentat the worksite; i.e.\u00a0 Atom Arc and Arcair welding electrodes.The standard requires that \”a list of hazardous chemicals. . . . referenced on the appropriate MSDS\” be present.\u00a0 Cannon specificallyexamined the MSDS sheets and photographed them.\u00a0 He did not see Atom Arc and ArcairWelding electrodes therein.\u00a0 While Respondent alleges another welding rod was listed,this does not meet with the standard requirements.\u00a0 These specific rods were notlisted and thusly employees checking the MSDS could not determine their physical andhealth hazards.Cannon testified the hazard associated with welding rod use wasnausea, pulmonary dysfunction, etc. (T-456-7)Respondent knew there was no MSDS for these specific products.\u00a0 On the record, Tri-state was in violation of ?1926.59(e) (1) (i).\u00a0 A penaltyof $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):\u00a0 The employer did not ensure that each container of hazardouschemicals in the workplace is labeled, tagged or marked specifying the appropriate hazardwarning:(a) Westbound Ft. Washington Way at split of north andsouthbound I-75 ramps.\u00a0 Equipment: Arcair copper clad electrodes. Condition: TheArcair electrodes were not provided with a hazard warning label to indicate the healtheffects of the materials contained therein.(b) Location: Westbound Ft. Washington Way at split of northand southbound I-75 ramps. Equipment: Atom arc electrodes.\u00a0 Condition: There was nohazard warning label on the Atom arc electrodes to indicate the health effects of thematerials contained therein.Section 1926.59(f)(5)(ii) provides (5) … the employer shallensure that each container of hazardous chemicals in the workplace is labeled, tagged ormarked with the following information:(ii) Appropriate hazard warnings.The labels to apprise employees exposed to the chemical hazardsof \”both the change in body function and the signs and symptoms that may occur tosignal that change.\”The Secretary has interpreted this requirement to require thatthe label spell out the target organs affected by the hazards present.\u00a0 Thisinterpretation is strengthened by the inclusion in Append A to ? 1926.59 at paragraph 7of target organ effects which may occur from exposure to hazardous chemical exposures.\u00a0 The Secretary’s interpretation of the standard is controlling, if it is reasonable.\u00a0 GAF Corp. v. OSHRC, 561 F.2d 913, 915 (D.C. Cir. 1977).\u00a0 The purpose ofthe standard is to protect employees from serious risks of health damage posed byhazardous chemicals which insidiously cause bodily damage.The Secretary has reasonably determined there is a need foremployees to know of the hazards associated with chemical exposures in the workplace andbe on guard with sufficient knowledge where possible.\u00a0 Section 59 (d) (2) states thatAppendix A shall be consulted for the scope of health hazards covered.\u00a0 Under Section59 (c) where health hazard is defined, reference is also made to further exploringAppendix A in defining chemical health hazards.\u00a0 In short, the Respondent was onnotice by the hazard communication standards that labeling of deleterious chemicals mustspecifically call the attention of employees to the bodily target organs which may beeffected 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 nature do not suffice.\u00a0 Since the label serves as the advance notice to an employee of informationdesignating the health hazard of working with certain chemicals, employees exposed to suchhazards must be informed of the specific target organs which may be affected.The Respondent knew or should have known that this specificinformation must be made available on the labels of hazardous chemical substances. \u00a0It has a hazard communication program which made it so aware.In the instant case the fume and gas decomposition chemicalproducts formed could cause damage to the lungs, and may act on the blood or hematopoieticsystem (See C-35 MSDS Atom Arc Rods Section II, V) .\u00a0 The labels did not provide the\”appropriate hazard warnings\” as required. Accordingly, the citation alleging aviolation of 29 C.F.R. ? 1926. 59(f)(5)(ii) is affirmed.Consistent with the criteria set forth in Section 17(J) of theAct, a penalty 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 Welding rodstype 7018.The Respondent argues that it had an MSDS for All-State WeldingRods which although from a different manufacturer do list the hazards present, and isapplicable to the rods used herein.This argument cannot be supported herein.\u00a0 Firstly, theHazard Communication Standard specifically requires at 59(g) (1) that there be \”amaterial, safety data sheet for each hazardous chemical.\”\u00a0 This is so thatworkers may be provided with full information on every chemical they work with, apprisedof the hazards concomitant thereto so that they can use caution and have knowledge wherethere is exposure.\u00a0 Undoubtedly, where they are working with different name products,the presence of an MSDS for each product will facilitate for such employees the useof the MSDS provided.\u00a0 Furthermore there is no evidence that the All-State WeldingRods were similar in all respects to Archair or Atom Arc Rods and presented the samechemical hazards.\u00a0\u00a0 The evidence supports a finding that the Respondent violated29 C.F.R. ? 1926.59(g)(1).\u00a0 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) in that employees were not provided with information and training on hazardouschemicals in their work area at the time of their initial assignment, and whenever a newhazard entered their work area.The record establishes that while supervisory employees weregiven hazard communication training sometime in 1988 & 1989, employees did not gottraining until May 11, 1989.\u00a0 Prior thereto,there were no official training sessionson chemical hazards in the workplace.\u00a0 The Respondent’s argument that givingemployees packets of materials, etc. concerning safety qualifies as training under thestandard is without merit.\u00a0 Training[[1]]\u00a0 in its ordinary under-stood usagemeans \” to coach in or accustom to some mode of behavior or performance, to makeproficient with specialized instruction and practice.\”\u00a0 No such course ofprocedure was followed here.\u00a0 The violation has been established.\u00a0 A penalty 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) forfailing to assure that employees exposed to possible danger of head injury wear protectivehelmets.Section 1926.100(a) requires that employees \”beprotected\” by the use of helmets \”where there is a possible danger of headinjury from impact, or from falling or flying objects…\” See Franklin R. Lacy(Aqua View Apartments), 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 standingunder an overpass on Route 1-75 without wearing a hard hat and was subject to being struckby falling debris emanating from work activity overhead.\u00a0 Respondent’s foremanHunter, who was in conversation with the employee (employee was standing outside trucktalking to Hunter, inside) stated he saw no concrete falling from above.A review of the testimony and the photographs depicting thearea strongly indicates that work was being carried out by welders on the roadway above.\u00a0 (Exh. C- 37, 38) A gas cylinder used by welders is depicted in the photographs andthe Compliance Officer positively stated he saw men working.\u00a0 Exhibit C-38 depicts anopening in the overhead span from which the testimony states debris was falling from.\u00a0 I find that an employee of Respondent was standing below an area where there waswork activity being carried out without wearing a protective helmet and was subject tobeing struck and injured by falling debris.\u00a0 The Respondent’s foreman was present andknew or should have known of the danger present to the employee.\u00a0 The evidenceestablishes a violation of 29 C.F,R. ? 1926.100 (a).\u00a0 A penalty of $250 isconsidered 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 forfailure to comply with the requirement that \”all arc welding and cutting cables shallbe of the completely insulated, flexible type.\”The evidence clearly demonstrates that the insulation on thecable attached to the Denyo multi quip welding generator was torn exposing the wires.\u00a0 This presented a hazard of electrical shock to employees using the equipment.\u00a0 As to the allegations concerning the other generator (see item 6(b) of thecitation) the evidence establishes the Iead attachment to the generator was not insulatedand presented a electrical hazard to employees who touched the lead at the attachmentpoint.\u00a0 The Standard requires the cable to be \”completely insulated\” Thepurpose is to protect employees from the hazard of electrical shock or even electrocutionwhere there is any uninsulated point in the lead attachment.\u00a0 In both instances,alleged herein there was such a hazard present and the Respondent’s foreman hunter wasaware of this condition.\u00a0 The preponderance of the credible evidence establishes aviolation of 1926.351 (b) (1).\u00a0 A penalty of $100 is considered appropriate 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 theAct and was amended in the Complaint to cite the above standards.Pursuant to a complaint that ironworkers employed by Tri-Statewere subject to the hazard of being struck by vehicular traffic while engaged in bridgereconstruction work, Compliance Officer Cannon visited the worksite located on aninterstate highway described as Fort Washington Way westbound on May 4, 1989.\u00a0 Heobserved barrels in the roadway which were used to direct traffic and separate it from thework area.\u00a0 The \”barrels were spaced at no particular distance…from 40 to 70or 75 feet, or somewhere in there.\”\u00a0 (Testimony of Cannon, T-190) There werethree to four welders working on the highway behind the barrier (barrels).\u00a0 TheCompliance Officer observed traffic cutting in behind and between the barrels close to themen at work putting them at the hazard of being struck.After a meeting between the general contractor (The JurgensenCo., subcontractors Tri-State and National, and a representative from the Ohio Departmentof Transportation the distance between the barrels was reduced from 50 feet to 25 feet,and both a patrolman and flagman were used to thwart the vehicular traffic crossing behindthe barrels which presented a work hazard.\u00a0 These additional steps did not solve theproblem.\u00a0 The hazardous condition was remedied on May by the use of \”barrels, 10foot centers with…mesh fencing\” which formed a barrier preventing cross-overs.The standard at issue, 29 C.F.R. ? 1926.201(a) (1) isconcerned with signaling methods, specifically \”flagmen.\”\u00a0\u00a0 Thestandard requires the use of flagmen \”when operations are such that signs, signals,and barricades do not provide the necessary protection. . .\” Consequently, one cannotbe in violation for failure to use flagmen unless the evidence shows they were not used,or at least not properly used.\u00a0 That element of proof is absent.Tri-State did use flagmen in attempting to alleviate theproblem, which proved unsuccessful.\u00a0 The Compliance Officer, who admittedly wasagainst citing this section testified that flagmen \”would be overburden some costwise\” (T-419), meaning they were not feasible under the circumstances existing.\u00a0 Hestated, \”In my own opinion, I don’t believe the standard deals with the situationthat we had at Fort Washington Way.\”\u00a0 (T-420) The citation therefore is vacated.In the alternative, a violation of 1926.203 in alleged. \u00a0This standard requires that \”Barricades for protection of employees shall conform tothe portions of the American National Standards Institute D 6. 1-1971, Manual on UniformTraffic Control Devices for Streets, and Highways, relating to barricades.\”The standard requires that barricades shall conform to a listedANSI Standard. Consequently, one can not be in violation unless this is proven.\u00a0 TheCommission has hold that:In order to prove a violation of section 5(a)(2) of the Act, 29U.S.C. ? 654(a)(2), the Secretary must show by a preponderance of the evidence that (1)the cited standard applies, (2) there was a failure to comply with the cited standard, (2)the employees had access to the violative condition and (4) the cited employer either knewor could have known of the condition with the exercise of reasonable diligence. \u00a0Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126 (No. 78-6247, 1981).The evidence of record does not establish that the Secretarymet her burden of proof.\u00a0 OSHA’s Compliance Officer testified that the standard atissue was not applicable \”to the situation on Fort Washington Way.\” \u00a0(T-418) Assuming the standard applies to this situation on the interstate highway, it wasfurther incumbent on the Secretary to demonstrate by a preponderance of the evidence thatthe barriers existent there did not conform with the ANSI Standard. \u00a0 The Secretarypresented no evidence on her essential element of proof.\u00a0 The citation, therefore, ofan alleged violation of 1926.202 is vacated.Docket No. 89-2705 – National Engineering & ContractingCompany – Serious Citation – Item 1Respondent National was cited for violation of 29 C.F.R. ? 1926.26(a)[[3]]\u00a0 forfailure to require an employee who was operating a hammer drill to wear safety-toed shoes.To establish a violation of 1926.28(a) the Secretary must provethat the employer had actual knowledge of the existence of the hazard which required theuse of personal protective equipment, or that a personably prudent employer familiar withthe relevant industry would require much use. 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.\u00a0 OSHRC,\u00a0 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\u00a0 BNA OSHC 1462, 1465-6 (4th Cir. 1979).It was incumbent on the Secretary to \”provide evidencefrom persons qualified to express such opinions\” that the personal protective meansspecified were necessary within the industry involved. See L.R. Willson and Sons Inc v.OSHRC, 698 F.2d 507, 513, 11 BNA OSHC 1097, 1101 (D.C. Cir. 1983);\u00a0 Ray EversWelding Co., supra at 625 F.2d 733; Cape and Vineyard Div. of the New Bedford Gas& Edison Light Co. v. OSHRC, 512 F.2d 1148, 1155, 2 BNA OSHC 1628 1633 (1st Cir1975).\u00a0 Compliance officer Cannon testified he observed an employee using an airhammer to chip concrete and was not wearing safety-toed shoes: and \”there is a goodpotential for fractured toes.\”\u00a0 Sorrell, the employee identified as beingwithout safety shoes testified he was not with the air hammer, but was doing a drillingoperation.\u00a0 Hunter, the general foreman on the job corroborated Sorrell’s testimonythat he was drilling not chipping with the air hammer He testified in the drillingoperation the drill does not bounce around as happens with chipping, but stays down in thehole, and is not a toe hazard for employees.The testimony of both Sorrell and Hunter casts some doubts onthe Compliance Officer’s knowledge of what type of operation was being conducted, andtherefore dilutes his opinion as to the alleged.There is no persuasive evidence presented by the Secretary thatthe employee was exposed to a hazardous condition requiring the use of safety-toed shoes.\u00a0 Furthermore the citation must be vacated due to the Secretary’s failure to prove bya preponderance of the evidence that a reasonable person familiar with the circumstancesof the industry would have protected against the hazard as specified by the ComplianceOfficer.\u00a0 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 thatit did not have a list of the hazardous chemicals known to be present using an identitythat is referenced on the appropriate MSDS.\u00a0 The Compliance Officer testified he wasshown a master list of hazardous chemicals on which a number of hazardous chemicals usedwere missing.\u00a0 He photographed the list (Exh. C-8-28) and stated a number ofphotographs did not develop but these missing chemicals were not on the list. \u00a0Respondent through Banner its safety officer produced a list of chemicals allegedly drawnup on March 8, 1991, which listed as present all chemicals not previously found by theCompliance Officer.After reviewing and observing both men testify, I find that thetestimony of Cannon demonstrating that the list given to him did not contain the hazardouschemicals listed is infinitely more reliable than a belated list prepared and now putforth as being in existence.\u00a0 The photographs and testimony amply demonstrates thislisting was incomplete.\u00a0 If the complete list was in existence, the Respondent wasfully on notice as to what the Compliance Officer was seeking, and could have provided itthen and there.\u00a0 The total evidence re-enforces the reliability of the findings bythe 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 programsstates:(f) Labels and other forms of warning.(5) *\u00a0 Except as provided in paragraphs (f)(6) and (f)(7)the employer shall ensure that each container of hazardous chemicals in the workplace islabeled, tagged or marked with the following information:(i) Identity of the hazardous chemical(s) contained therein;The citation alleges that there were four containers ofhazardous materials which were not so labeled, tagged or marked with their identity.\u00a0 Specifically, the Compliance Officer saw a can of gasoline, a portable fuel storagetank containing No. 2 diesel fuel, a fuel tank sitting on the back of a Chevrolet truckwith contained No. 2 diesel fuel and a propane tank all without the necessaryidentification as required by the standard.\u00a0 The Respondent alleges that the size,shape, and coloring of these sufficiently identifies them, i.e. red container signifies ithas gasoline, propane tank was identifiable by its configuration and coloring etc. \u00a0This argument is without merit.\u00a0 To ensure that employees are made fully aware ofchemical hazards, employers are required to label, tag or mark each container of hazardouschemicals.In plain, unambiguous language the standard states thecontainers must show the \”identity of the hazardous chemicals containedtherein.\”\u00a0 Section 1926.59(c) states \”identity means any chemical or commonname which is indicated on the MSDS for the chemical.\”\u00a0 No such description wasplaced on the containers herein.\u00a0 The Respondent knew that hazardous chemicals werein the containers and did not identify then as required.\u00a0 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 eachcontainer of hazardous materials is labeled, tagged or marked with appropriate hazardwarnings.\u00a0 The Secretary alleges that in nine instances Respondent failed to comply.\u00a0 In four instances, there were no identifying labels at all, i.e. Items (a) 5-galloncan of gasoline, (b) 1-gallon can of gasoline, (d) Propane storage tank, and (h) Fuel,storage tank on Chevrolet truck which contained No. 2 diesel fuel.\u00a0 The standardrequires each container be labeled, tagged or mark with appropriate hazard warnings.\u00a0 Absent any such warnings as occurring in the above, the standard is violated.\u00a0 Once again the same argument is made that the size, shape of the objectssufficiently identifies them.\u00a0 This in rejected as totally without Merit.On the remaining five items found in violation, i.e.(c) 355-gallon containers of Poly Carb, (e) Universal tractor fluid, (f) Koch high penetrationprimer 5952, (g) Sikadur 32, (i) Xylene; none met the requirements of the standard thatwarning be given to employers of the health hazard present when used.\u00a0 Merelyprinting words such as hazardous, or corrosive, or flammable does not meet therequirements that the employees be made aware of the bodily systems and organs at risk.\u00a0 The discussion and finding related to a violation of this section stated previouslyin relation to Tri-State is applicable herein.\u00a0 The Respondent knew or should haveknown of the failure to mark its materials, with the necessary hazard information. \u00a0The employees could suffer serious and severe injuries from the chemicals involved. \u00a0The violations of 29 C.F.R. ?? 1926.59(e)(1)(i), .59(f)(5)(i) and .59(f)(5)(ii) areaffirmed.\u00a0 A combined penalty of $400 in considered appropriate.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, SealTight Hi Spec polymeric compound, Hilti Hit C100 dowelling, and Vulcan Super Prem SAE 30.\u00a0 The standard requires there be \”a material safety data sheet for eachhazardous chemical.\”The Compliance Officer testified he examined Respondent’sMSDS’s on May 10, 1989, at the worksite, and there were none for the five items listed.\u00a0 He requested them and counsel provided an MSDS for Seal Tight Hi Spec, Hilti HitC100 and Universal tractor fluid at his office on June 2, 1989.Respondent avers that all MSDS’s were provided and there was noviolation. This argument is without merit.\u00a0 The purpose of the Hazard CommunicationProgram is to provide employees an opportunity to have total information regarding thehazards pertaining to the chemicals used in performing their job.\u00a0 Thusly, thenecessary information must be available to them at the worksite where their contactwith the chemicals occurs.\u00a0 The Compliance Officer noted the hazardous nature of thechemicals in the missing MSDS’s, all of which were known to the Respondent.\u00a0 Thesechemicals could cause serious illness or injury.\u00a0 The violation of the standard at1926.59(g)(1) is affirmed.\u00a0 A penalty of $200 is considered appropriate for theviolation.Citation No. 1, Item 4,Alleged Violation of 29 C.F.R. ? 1926.100 (a)Section 1926.100(a) requires that employees \”beprotected\” by the use of helmets \”where there is a possible danger of headinjury from impact or from falling or flying objects…\” See Franklin R. Lacy,supra.The Compliance Officer observed Scott Febus, Respondent’sassistant job superintendent, working with foreman Robert Hunter under the I-75 overpass.\u00a0 Febus was not wearing any head protection, while Hunter did have one on.\u00a0 TheCompliance Officer noted debris falling from overhead where arc welding was being carriedout, and Febus was subject to being struck by debris. While Hunter testified he saw nodebris falling, a review of the total evidence including the photographs of the areapresent substantial evidence to support a finding that Febus was in danger of being struckby overhead debris.\u00a0 The Respondent’s foreman knew of said danger and took means toprotect himself by wearing a hard hat.\u00a0 The violation of 1926.100(a) is affirmed. Itis noted that the citation listed two instances of violation; however, one allegation waswithdrawn at the hearing.\u00a0 Based on the remaining violation, a penalty of $350 isappropriate.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 beprovided with eye and face protection when machines or operations present potential eyeand face injury from physical, chemical or radiation agents.\”\u00a0 Thusly, theemployees are required to wear safety glasses meeting requirements of the ANSI 297.1-1968standard that is incorporated by reference at 29 C.F.R. ? 1926.102(a)(2).The Compliance Officer observed an employee (Sorrell) using asaw to cut a concrete parapet. He observed flying chips and pieces emanating from theoperation, and stated the employee was at hazard with possible injury to his face and eyessince he was not wearing safety glasses, but merely ordinary sunglasses. (See photographExh. C-66) The evidence substantiates that this employee was not wearing impact resistancetype glasses meeting the safety requirements required by the standard, and that theoperation of the saw presented the potential for eye injury.Additionally, the Compliance Officer observed another employeeworking within 10 foot of the breaker operation without wearing safety glasses forprotection from flying debris.\u00a0 Although this employee did have safety glasses, theywere perched upon his forehead, and were not protecting his eyes exposing him to potentialeye and face injury.\u00a0 The area around the breaking operation constituted a zone ofdanger and the employee 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 faceinjuries from the type of work being done; it had previously recorded eye injuries in itsoperation.\u00a0 A violation of the standard at 1920-102(a)(1) is affirmed.\u00a0 Apenalty 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 firehazard existed, and Respondent had failed to post signs stating \”No Smoking or OpenFlames\” as required.\u00a0 The Compliance Officer observed numerous cans of PolyCarb, a highly flammable substance stored on the inside of a storage trailer, and on theoutside near the entrance.\u00a0 The trailer and its outside vicinity was used by theemployees to obtain the needed materials.\u00a0 There was a no-smoking sign on a tankwhich the Compliance Officer estimated to be 50-60 feet from the flammable material; theRespondent alleged this sign was 20 feet away.\u00a0 In any case, the sign was not what areasonable person would hold to be in the vicinity of operations which constituted a firehazard.\u00a0 The standard is designed to protect employees from a fire hazard; in thatsense the warning sign should be in close proximity to the flammable materials, not 20feet nor longer away.The Respondent knew of the presence of the flammable materialsfrom the MSDS kept on premises therefor.\u00a0 The employees were subject to a fire hazardwhile dealing with the poly carb material.\u00a0 A violation of the standard has beenproven.\u00a0 A penalty of $150 is considered appropriate herein.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 for storing flammable liquids.[[4]] The undisputed testimony of the ComplianceOfficer was that employees used a one gallon can of gasoline in their work activity whichwas non-approved and clearly exposed the employees using it to the hazard that thegasoline fumes that could ignite and cause serious burn injuries.\u00a0 The Respondentcontends the un-approved gasoline can being used was rented, and since the gasoline was inthe original container there is no violation.\u00a0 There is absolutely no merit in thisallegation.\u00a0 It was incumbent upon the Respondent to protect its employees frompossible serious injury by using an approved container.\u00a0 The Respondent knew of thepresence of flammable materials and with reasonable diligence could have protected againstthe violative conditions.\u00a0 Its employees had access to the hazard created by thehazardous condition.\u00a0 A violation of the standard at 1926.152(a)(1) is affirmed.\u00a0 A penalty of $150 is considered appropriate 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 29C.F.R. ? 1926.152(g)(11). In that there was no fire extinguisher within 75 feet of aflammable liquid storage area, i.e. in an area where a full storage tank contained dieselfuel.\u00a0 The evidence demonstrates there was a fire extinguisher directly under thetanks however, the Compliance Officer alleged a violation on the theory that being belowthe tank the extinguisher would be inaccessible if there was a fire.\u00a0 Thisinterpretation conflicts with the plain language of the statute which mandates that\”an extinguisher within 75 feet… of the service area.\”\u00a0 Clearly, theextinguisher herein was within this parameter. \”…an occupational safety and healthstandard must give an employer fair warning of the conduct it prohibits or requires… seeDiamond Roofing Co v OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). The Secretary’sinterpretation of the standard conflicts with its plain meaning and fails to provideemployers with fair notice of their obligations under the standard.The citation alleging a violation of 29 C.F.R. ?1926.152-(g)(11) is vacated.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 failingto provide fall protection for employees working on the I-25 ramp about 20 feet aboveground level.\u00a0 The standard requires an opensided floor to have standard railings anspecified in 1976,500 (f) (1) (i)The Compliance Officer observed three men working on the bridgeroadway not protected from a fall of 20 feet.\u00a0 A parapet in about to inches high didnot meet the guardrail required under the standard. The respondent know or with duediligence could have known of the fall hazard present. Its foreman was present during thework activity, and furthermore it had notice that the guardrailing was removed from theparapet during the repair work.\u00a0 A fall from the bridge ramp could have causedserious injury.\u00a0 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 thatheavy machinery, equipment or parts thereof which are suspended or held aloft by use ofslings, hoists or jacks be substantially blocked or cribbed to prevent falling or shiftingbefore employees are permitted to work under or between them.\u00a0 The Compliance Officertestified an observed a backhoe \”being hold off by the outriggers with two employeesunder it.\”\u00a0 The backhoe was not blocked or cribbed to prevent it from falling.\u00a0 The evidence demonstrates that there were employees working under the suspendedbackhoe who were in danger of sustaining serious injury if the backhoe tilted or fell.\u00a0 The record supports a finding of noncompliance with the standard, and that theemployees had access to the cited condition.\u00a0 Furthermore, the Respondent knew orwith the exercise or reasonable diligence, could have known of the violative condition.\u00a0 The citation for serious violation of 29 C.F.R. ? 1926.600(a)(3)(i) is affirmed.\u00a0 A penalty of $150 is reasonable and appropriate under section 17(j) of the Act.Citation No. 2, Item 1Alleged Violation of 29 C.F.R. ? 1926.201(a)(1)or in the alternative ? 1926.202These are similar violations to those to which Tri-State wascited.\u00a0 The area where this violation took place is different.\u00a0 The ComplianceOfficer observed four men working at a table that was set up on sawhorses installing formwork to re-pour a parapet located on the highway.\u00a0 The area involved was where theI-75 southbound ramp from Ft. Washington Way merged with southbound 75.\u00a0 There werebarrels along this route, however, the Compliance Officer found that the barrels endedapproximately 27 feet from the area where the men were working and they were at hazard ofbeing struck by vehicular traffic.\u00a0 He stated that two more barrels which were on thetraffic plan were missing, and that these were required to warn motorists of men at work,and to separate the traffic lane from the work area.It is the Secretary’s burden, to establish that the Respondentknew with the exercise of reasonable diligence, could have known of the violativecondition.\u00a0 Astra Pharmaceutical Products, Inc., supra.The traffic situation herein differs markedly from the areaTri-State was cutting in between barrels close to the men working.\u00a0 Here no vehiculartraffic would cross into the right lane since there was a visible parapet there;furthermore the highway vehicles were traversing on was slightly higher than the rightadjacent roadway where the men were constructing forms; additionally, a white line on theroadway further introduced to the drivers the nature of the roadway, i.e. there was onelane only going to Covington, Kentucky, at the point involved herein.\u00a0 There was atleast one half mile of roadway past the work area before the drivers needed to move to theright in order to get to their destination.\u00a0 The Respondent was aware of thesefactors.\u00a0 There is no evidence that the Respondent knew there was a hazardouscondition present or could have known it with reasonable diligence.\u00a0 With the factorspresent as stated above, it cannot be said National failed to exercise reasonablediligence. The alleged violation of 29 C.F.R. ? 1926.201(a) (1) or in the alternative1926.202 is vacated.Another cogent reason to vacate these citations is thetestimony of the Compliance Officer that both sections are not applicable to the situationat hand.\u00a0 The Secretary did not disprove or give any evidence to vitiate thetestimony of its main witness.Citation No. 3, Item 1,Alleged Violation of 29 C.F.R. ? 1926.350 (j) – Section3.2.4.3. ANSI Z49.1-1967The Respondent was cited for a non-serious violation of1926.350(j) for failure to assure that oxygen cylinders in storage separated from fuel-gascylinders or other combustibles by a minimum distance of 20 feet or by a noncombustiblebarrier at least five feet high having a fire-resistance rating of at least one-half hourin accordance with ANSI Z49.1 1967 Article 3.2.4.3.\u00a0 The Compliance Officer observedoxygen cylinders approximately nine feet from flammable materials which were placed insidea storage trailer.\u00a0 (Exh. C-69, C-77) The flammable items were inside the trailer andseparated from the oxygen by the trailer wall.\u00a0 The language of the statute requiresthe separation be by a noncombustible barrier at least 5 feet high.\u00a0 There was thewall barrier present. As part of its prima facie case the onus was on the Secretary toprove that said wall barrier was not the prescribed fire resistant barrier contemplated bythe standard.\u00a0 That essential element of proof is missing. The citation is vacated.AFFIRMATIVE DEFENSE – EMPLOYEE MISCONDUCTRespondents National and Tri-State claim that even if there wasa violation concerning failure to wear hard hats, failure to wear safety-toed shoes, andfailure to wear safety glasses, it was the result of employee misconduct and should not bechargeable to them since their safety program specifically directed employees to use theprotected devices required.Firstly, no violation was found regarding the use ofsafety-toed shoes (Citation No. 1, item 1 was vacated).\u00a0 The evidence of recordestablishes that the Secretary made out a prima facie case of a violation of the Act withreference to the failure to have employees wear hard hats (violation found against bothNational and Tri-State) and failure to have employees wear safety glasses (violationagainst National).To establish the employee misconduct defense the employer mustshow that the violation resulted from employee actions which contravened a company workrule that was effectively communicated and uniformly enforced.\u00a0 H.B. Zachry Co. v.OSHRC, 7 BNA OSHC 2202, affirmed, 638 F.2d 812 (5th Cir. 1981); Brock v. L.E. MyersCo., High Voltage Div., 818 F.2d 1270 (6th Cir. 1987) cert. denied, 108 S.Ct. 479, 98L.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 duty tocommunicate and enforce feasible work rules in order to avoid liability for the violativeconduct of its employees.\u00a0 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; Towne Constr. 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 to properly trainand supervise its employees and then hide behind its lack of knowledge concerning theirdangerous work practices\”).The Secretary may prove an employer’s knowledge of apreventable hazard \”upon the introduction of proof of the employer’s failure toprovide adequate safety equipment or to properly instruct its employees on necessarysafety precautions.\” L.E. Myers, supra, at 1277, noting Brennan v. OSHRC, 511F.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 demonstratethat program’s effectiveness in practice as well as in theory.\” Towne Constr.,supra, citing L.E. Myers, supra.Respondents failed to demonstrate that it had established workrules designed to prevent safety violations that was adequately communicated andeffectively enforced, or had taken steps to discover these violations.\u00a0 JensenConstr. Co., 7 BNA OSHC 1477, 1979 CCH OSHD 23,664 (No. 76-1538, 1979); TexlandDrilling Corp., 9 BNA OSHC 1023 (No. 76-5307, 1980). The presence of supervisorypersonnel at or near when the violations occurred indicate Respondents knew or could havewith reasonable diligence known of the violations.\u00a0 Pennsylvania Power & LightCo. v. OSHRC, 737 F.2d 350, 11 BNA OSHC 1985 (3rd Cir. 1984). Respondents failed todemonstrate by a preponderance of the evidence that its safety program in practice was\”thorough and adequate\” and diligently enforced.\u00a0 Their defense of employeemisconduct must fail.FINDINGS OF FACT AND CONCLUSIONS OF LAWThe findings of fact and conclusions of law contained in thisopinion are incorporated herein in accordance with Rule 52(a) of the Federal Rules ofCivil Procedure.\u00a0 Any proposed findings or conclusions not contained in this opinionare neither found nor concluded.ORDER – IN RE: TRI-STATE STEEL CONSTRUCTI0N, INC.In view of the foregoing, good cause appearing therefore, it isORDERED that: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 a seriousviolation of 29 C.F.R. 1926.59(e) (1) (i) is affirmed and a penalty 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 are affirmed, and apenalty 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 are affirmed, and a penaltyof $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 penalty of $200 isassessed.5) The allegation of a serious violation of 29 C.F.R.1926.100(a) found in item 5 of citation No. 1 is affirmed, and a penalty of $250 isassessed.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 are affirmed, and a penaltyof $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 item No. 1 of citationNo. 2 are vacated.ORDER – IN RE: NATIONAL ENGINEERING & CONTRACTINGCOMPANYIn view of the foregoing, good cause appearing therefore, it isORDERED that: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) foundin items 2(a) through 2(i) of citation No 1 is affirmed and a penalty of $400, is assessedto 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 is affirmed, and a penaltyof $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 a penalty of $350 isassessed.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 is affirmed, 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 is affirmed, 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 a penalty of $150 isassessed.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 is affirmed, and apenalty 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 a penalty of $150 isassessed.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 1 of Citation No. 2is 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 1991 Washington, D.C.FOOTNOTES: [[1]] Five of the nine issues listed in the Direction for Review are no longer before usbecause they focused on the merits of citation items that the Secretary has sincewithdrawn.\u00a0 Only the three issues relating to the Respondents’ Fourth Amendmentdefense and the one issue relating to the merits of item 9 remain before us on review.\u00a0 Contrary to the Secretary’s arguments on review, the Fourth Amendment issues statedin the Direction for Review are not limited in scope to the evidence gathered in supportof item 9. At a minimum, the validity of the evidence introduced in support of all itemsaffirmed by the ALJ and not subsequently withdrawn by the Secretary is at issue before uson review. See 29 C.F.R. ? 2200.92(a).[[2]] The task of Tri-State’s ironworkers was to repair orreplace the \”end dams\” (or \”expansion dams\”) and \”expansionjoints\” on the two bridges, which are referred to throughout the record as bridges 6and 2.\u00a0 Dams and joints are two types of devices used in bridges to allow expansionand contraction during changing weather conditions.\u00a0 The \”end dams\” or\”expansion dams\” are located at either end of a bridge and extend horizontallyacross the width of the road.\u00a0 In contrast, the \”expansion joints\” run thesame direction as the road. Because they are buried under the surface of the roadway, theybecome a pan of the bridge itself.\u00a0 The rehabilitation work performed by Tri-Stateinvolved the use of cutting torches to cut the old welds, the replacement of old expansionjoints, when necessary, and the use of welding machines to make new welds.\u00a0 This workis frequently done from a sitting or crouching position, and the worker’s vision isrestricted by the welder’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 andremoval of the roadway pavement covering the \”expansion joints and \”dams\”so that the Tri-State employees could then come in and do their rehabilitation work.\u00a0 National employees were also responsible for removing the existing guardrails onthe concrete parapets along the sides of the elevated highway as part of the process ofinstalling new parapets.\u00a0 See Part IV of this decision, infra[[3]]Given the slow speed of the traffic, due to thecongestion, and the 50-foot spacing between the barrels, a motorist who washed to crossover to the opposite lane found it easy to do so.[[4]] As indicated, National is the parent company ofTri-State. On project 8, the Respondents’ three highest level management officials,including project superintendent Taylor, held their respective positions with bothNational and Tri-State.\u00a0 Work crew foremen, however, worked either for National orfor Tri-State.[[5]] Once agreement was reached on this change in the trafficcontrol measures. ODOT instructed Taylor to send his employees back into the work area.The employees therefore returned to bridges 6 and 2 later that same day.[[6]] The Respondents assert that the complaint was filed byunion business agent Shinkle of the Iron Workers Union, which represented Tri-Stateemployees at the worksite.\u00a0 However, the affidavit filed in conjunction with OSHA’swarrant application, see discussion infra, states that the complaint was filed by\”a representative of employees of the general contractor on the construction site,John R. Jurgensen Co.\” The complaint itself is not in the record.\u00a0 The recorddoes contain a summary of the complaint that was prepared by OSHA and attached to thewarrant application.\u00a0 However, that summary contains no information about the personwho filed the complaint.[[7]] The complaint summary, see supra note 6.described the alleged hazard as follows:Barrels used to contain traffic on Fort Washington Way westbound east of the interchange for north and south bound 1-75 am not set to prevent truckand auto traffic from driving between them in order to change lanes.\u00a0 Employees areworking between two such rows of barrels and subject to being struck by vehicles changinglanes through the openings between the barrels.[[8]] OSHA responded promptly because it considered thecomplaint to be an allegation that employees were exposed to an imminent danger. \u00a0OSHA also considered the complaint to be an allegation of conditions in violation of theOccupational Safety and Health Act of 1970, 29 U.S.C. it ?? 651-678 (\”theAct\”).\u00a0 Thus. CO William J. Wilkerson included the following statement in hiswarrant application affidavit, which we discuss infra: \”In my opinion …the complaint alleges serious conditions that are covered by 29 CFR 1926.201, 29 CFR1926.202, Section 5(a)(1) of the Act and other parts.\”\u00a0 Sections 1926.201 and1926.202 are found in Subpart G of Part 1926, which contains provisions governing, amongother things, traffic control measures during construction activities.\u00a0 Section1926.201 regulates the use of flaggers, while section 1926.202 regulates the use ofbarricades.\u00a0 Section 5(a)(1) of the Act, 29 U.S.C ? 654(a)(1), the Act’s\”general duty clause,\” provides that \”[e]ach employer. . . shall furnish toeach of his employees employment and a place of employment which are free from recognizedhazards that are causing or likely to cause death or serious physical harm to hisemployers.\”[[9]] During this two-hour period, Cannon personally observedfour cars and one truck cross over the two center lanes.\u00a0 These included vehiclesgoing in both directions i.e., from the left-hand lane to the right-hand lane, and viceverse.\u00a0 One of these incidents, in which a Jaguar passed through the work area andcame very close to a group of Tri-State employees, was videotaped by CO trainee Boatman(Exh. C-12).\u00a0 The inspection on May 4 was limited to the work area identified in theemployee representative’s complaint, and Cannon’s focus was on \”documenting the crisscrossing traffic.\”\u00a0 Cannon determined that the barrels arranged in rows on bothsides of the work area were spaced irregularly, with the distances between barrels varyingfrom 40 feet to 70 or 75 feet apart.\u00a0 Some additional protection was provided to theemployees by two trucks and three or four welding machines that were strategically placedin relation to the work crews.[[10]] The record contains an alternative chronology of events.\u00a0 This alternative chronology is based primarily on Cannon’s deposition testimony,but it also finds some support in his testimony at the hearing, particularly during crossexamination.\u00a0 Under this version of events, the decision to conduct a full-scopeinspection of project 8 and the agreement between the area director and Jurgensen’spresident on the installation of the snow fence both occurred on Friday, May 5, ratherthan Monday, May 8.\u00a0 Most of the work on implementing this plan was done on Sundaynight, May 7. and accordingly, when the CO returned to the site on Monday morning, May 8,most of the snow fencing had already been installed.\u00a0 From our point of view inresolving the issues that are before us, it makes little if any difference which of thesechronologies is correct.[[11]] The secretary also argues that the evidence should notbe suppressed in these cases even if the Fourth Amendment was violated.\u00a0 Since weconclude herein that the Respondents Fourth Amendment rights were not violated, we have nooccasion to reach these alternative arguments. which focus on the application of theexclusionary rule and the good faith exception to the exclusionary rule in the context ofthese proceedings.[[12]] We further note the inconsistency between theSecretary’s arguments before us and the Secretary’s position at the time she issued hercitations.\u00a0 As a result of her investigation of the employee representative’scomplaint and her warrantless inspection of the area described in the complaint. \u00a0OSHA issued to Tri-State a citation alleging a willful violation of section 5(a)(1) of theAct, see supra note 8, and proposing a $9000 penalty.\u00a0 The Secretary’s allegation wasthat Tri-State violated the Act in the following manner: \”Employees were allowed towork in an area that is part of an interstate highway system known as Ft. Washington Waywestbound without adequate protection provided for employees to prevent automobile andtruck traffic from driving through the work area subjecting employees to being struck bysuch vehicles\” (emphasis added).\u00a0 We find this allegation–in essence, thatTri-State violated the general duty clause by not taking adequate measures to keep thepublic out of the work area–to be incompatible with the Secretary’s claim that the CO hada right to be in the work area because he was merely going into an area that was open tothe public.[[13]] The cases cited by the ALJ and by the Secretary do notconvince us otherwise.\u00a0 The judge cited Stephenson Enterp., Inc. v Marshall, 578 F.2d1021 (5th Cir. 1978), for the proposition that \”the observations [the complianceofficer] made on the highway after parking his vehicle which were in plain view of all wasnot a constitutional violation.\”\u00a0 However, the \”plain view\”observations that were referred to in Stephenson Enterp. were made during the course of aconsensual workplace inspection.\u00a0 The compliance officer was therefore lawfully inthe place from which he made his observations because the employer had consented to thewalkaround inspection.The cases cited by the Secretary in support of the judge’sreasoning are also distinguishable on similar grounds.\u00a0 See, e.g. AckermannEnterprises, Inc., 10 BNA OSHC 1709, 1982 CCH OSHD ? 26,090 (No. 80-4971, 1982), (COinadvertently viewed violation from employer’s parking lot after receiving permission fromthe employer’s representative to wait for a management official in the parking lot).[[14]] In arguing before us that the Fort Washington Wayworksite was entitled to protection under the Fourth Amendment, the Respondents relyheavily on a case in which the United States Court of Appeals for the Seventh Circuitrecognized the existence of a \”business curtilage\” exception to the \”openfields doctrine.\u00a0 United States v. Swart, 679 F.2d 698, 702 (7th Cir. 1982).\u00a0 The curtilage concept originated at common law to extend to the area immediatelysurrounding a dwelling house the same protection under the law of burglary as was affordedthe house itself.\” United States v. Dunn, 480 U.S. 294, 300 (1987)(\”Dunn\”)(emphasisadded).\u00a0 As discussed in Dunn, the concept has been incorporated into FourthAmendment analysis, and the domestic curtilage is considered to be protected under theFourth Amendment even though it may literally be both a field and open.\u00a0 It is not atall clear under the case law, however, that a business has a \”curtilage\” in thesame sense that a home does.\u00a0 Even if it does, we fully agree with the Secretary thatthe concept of a \”business curtilage\” has no application to the situation atissue before us:A \”business curtilage\” presumably would be the landsurrounding and associated with a fixed place of business, as in Swart. \u00a0Here, there is no office, plant, or other commercial building to which a curtilage wouldattach.\u00a0 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 DunnCourt noted that it had \”expressly rejected the argument that the erection offences on an open field–at least of the variety involved in these cases and in thepresent case–creates a constitutionally protected privacy interest.\”\u00a0 480 U.S.at 304. In Dunn, as in Oliver, the Court was dealing with fences that weredesigned only to keep trespassers out (and, in Dunn, to keep livestock in).\u00a0 The DunnCourt suggested that these types of fences must be distinguished, for Fourth Amendmentpurposes, from privacy fences that are designed to prevent outsiders from observing whatlies within.\u00a0 In the cases now on review, we conclude that the barriers at issue fallwithin the same category as the fences that were at issue in Oliver and Dunn.\u00a0 As the Secretary correctly observed in her review brief, \”virtually all of[Tri-States] construction activities took place in full view of motorists passing by onthe open lanes of traffic\” and [t]he widely-spaced traffic barrels obviously didnothing to impede this view.\” Nor were they intended to accomplish anything more thankeeping motorists out of the work area.[[16]] In Oliver, the Court applied the \”openfields\” doctrine even though the police, upon arriving at a farm, ignored a lockedgate with a \”No Trespassing\” sign posted, followed by a footpath that led aroundone side of the gate, and eventually reached a marijuana patch in a highly secluded areathat could not be seen from any point of public access.\u00a0 As noted by the DunnCourt, the Oliver Court held that the steps taken to keep the public off of thisprivate property did not create a reasonable expectation of privacy.\u00a0 480 U.S. at 304(citing 466 U.S. at 182).[[17]] As indicated above, Wilkerson averred in his affidavitthat the employee reprepresentative’s complaint met the \”formality requirements\”of section 8(f)(1) of the Act.\u00a0 These requirements are \”stated in Chapter IX ofOSHA’s Field Operations Manual (\”FOM\”), .which was attached to the warrantaffidavit as Exhibit B.\u00a0 To meet these requirements, a complaint of unsafe orunhealthful working conditions must: \” (1) Be reduced to writing (either on an OSHA-7Form or in a letter); (2) Allege that an imminent danger or a violation threateningphysical harm (i.e. a hazard coveted by a standard or by the general duty clause) existsin the workplace; (3) Set forth with reasonable particularity the grounds upon which it isbased …. and (4) Be signed by at least one employee or employee representative.\”Section 8(f)(1) implicitly requires the Secretary to determine whether a complaint meets,the formality requirements set forth above.\u00a0 The statute also expressly requires theSecretary to determine whether \”there are reasonable grounds to believe\” thatthe violations or imminent danger hazards alleged in the complaint actually exist. \u00a0\”If upon receipt of [the complaint] the Secretary determines there arc reasonablegrounds to believe that such violation or danger exists, he shall make a specialinspection in accordance with the provisions of this section as soon as practicable, todetermine if such violation or danger exists.\”[[18]] On May 31, 1989, the Secretary filed in the districtcourt an opposition to National’s motion for a stay (See discussion of National’s motion, infra).In that opposition, the Secretary argued that her warrant application had providedprobable cause for a full-scope inspection–regardless of whether that application wasevaluated under the provisions of paragraph 9.b. or paragraph 9.d. above: \”[T]heApplication for Inspection Warrant provides sufficient neutral criteria for an expandedinspection in even a low-hazard industry because of the additional safety hazards observedsuch as improper use and storage of flammable gases, failure tit remove welding rods fromwelding cable clips, and inadequate protection of workers from moving vehiculartraffic.\”\u00a0 As indicated above. Wilkerson stated in paragraph 2 of the affidavitthat these additional safety hazards had been observed during the course of the section8(f)(1) inspection.[[19]] Under well-established Fourth Amendment case law.\”[c]onsent effective to validate a warrantless search may be given by a person otherthan the victim of the search.\” Donovan v. A.A. Biero Constr. Co.. 746 F.2d894, 898 (D.C. Cir. 1984). Such \”third-party consent\” may be given by anyonehaving common authority over the premises or effects that the government agent wishes tosearch. Id.\u00a0 See also United States v. Matlock, 415 U.S. 164,171(1974) Furthermore, such third-party consent is valid to justify a warrantless inspectioneven even the targeted party objects to the inspection, as Jurgensen, National, andTri-State did in that cases.\u00a0 See J L Fot: Constr. Co. v Donovan, 786 F.2d714, 716-17 (6th Cir. 1986).\u00a0 The third party, however can consent to inspection ofthe common areas and not to inspection of area under the exclusive authority of thetargeted party. See, e.g. National Engg.& Contract Co. v OSHA, 928 F.2d 762,766 (6th Cir. 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 plain view, it does notautomatically extend to the interiors of every enclosed 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 theconditions it discovered during its section 8(f)(1) complaint inspection.\u00a0 When theSecretary filed her complaint in OSHRC Docket No. 89-2611, however, she amended thecitation in question to allege that Tri-State committed a serious violation of either ?1926.201 or ? 1916-202.\u00a0 (This amendment changed only the Secretary’s legal theoryand not the factual basis of the charge; the citation was still directed essentially toTri-State’s failure to keep motorists out of the work area on Fort Washington Way). \u00a0In his decision in these consolidated cases, the ALJ vacated this contested citation, atleast in part because of CO Cannon’s opinion testimony that neither of the two standardscited in the amended charge applied to the cited conditions.\u00a0 (The judge also foundthat the Secretary had failed to prove noncompliance with either of the standards assumingthat they were applicable).\u00a0 The judge expressed no opinion as to whether the citedconditions violated section 5 (a)(1) as the Secretary had originally charged.[[21]] In view of our conclusion, infra, that thejudge was correct in holding that the warrant was valid we need not reach the otherarguments raided by the Secretary in her review brief.\u00a0 We note, however, theinconsistency between (a) the Secretary’s claim before us that the inspection at issuecould have been conducted without a warrant and (b) the concession made by the Secretarybefore Magistrate Sherman that a warrant was necessary, even though she had alreadyobtained third-party consent, because she intended to conduct (and indeed later didconduct) 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 \”theadministrative plan which formed the primary basis for seeking a full scope warrant hasbeen changed\” since the filing of the warrant application at issue in these cases.\u00a0 In particular, the provision governing the expansion of complaint inspections inthe construction industry has been revised.[[23]] In any event, the Respondents discuss only the questionof contractual responsibility, ignoring the more significant issue of legal responsibilityunder the Act.\u00a0 Thus, for example, the duty imposed by section 5(a)(1) the Act, seesupra note 8, to protect workers from recognized hazards that are causing or likelyto cause death or serious physical harm, is a duty statutorily imposed on each employerwith respect to its own employees.\u00a0 The fact that others had the contractualresponsibility for developing and implementing the traffic control plan did not mean thatNational and Tri-State were powerless to protect their own employees or that they wereabsolved of all responsibility under the Act to provide those employees with safe andhealthful workplaces and working 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, and thereafter attemptedto gather all of the contractors on project 8 for an opening conference.\u00a0 However,these efforts fell apart when representatives of Jurgensen and of National\/Tri-Statedemanded that OSHA obtain an administrative inspection warrant.\u00a0 This warrant wasobtained on May 9 and served on May 10, which was the day the formal walkaround inspectionbegan.[[25]] Specifically, the Respondents argue as follows in theirreview brief:These observations [of \”additional safety hazards,\”asdescribed in the affidavit] could only have been made by the compliance officer on thescene.\u00a0 However, he testified [in his deposition] that these observations onlyoccurred after May 9, not before.[[26]] Even if the challenged statement is viewed as beingOSHA’s determination rather than Wilkerson’s personal opinion, we cannot conclude that theasserted misrepresentation had any effect on the magistrate’s determination ofadministrative probable cause.\u00a0 In effect, the challenged statement presented themagistrate with either of the alternative theories that the Secretary later advocated inthe proceedings before the commission that is that the conditions described in theemployee representative’s complaint and confirmed by Cannon’s work place inspection werein violation of ? 1926.201 or ? 1926 202 or section 5(a)(1) of the Act.\u00a0 Assumingthat there was disagreement within OSHA over which of these legal requirements covered theat issue we conclude that OSHA had no obligation to bring this disagreement to themagistrate’s attention. From the view point of the magistrate in making his probable causedetermination, the significant fact was that insofar as this record shows everyone in OSHAinvolved in the inspection and warrant application process agreed that the hazard inquestion violated the Act[[1]] The American Heritage Dictionary, New College Edition, 1976, Houghton MifflinCompany, Publishers, p. 1361.? 1926.28 Personal protective equipment.(a) The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for using such equipment to reduce the hazards tothe employees.? 1926-152 Flammable and combustible liquids.(a) General requirements. (1) only approved containers and portable tanks shall be usedfor storage and handling of flammable and combustible liquids…”