Docket No. 83-0299

SECRETARY OF LABOR,
Complainant,

DEKALB FORGE COMPANY,
Respondent.

OSHRC Docket No. 83-0299

DECISION

Before: BUCKLEY, Chairman, and WALL, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. ї 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ї 659(c).

DeKalb Forge Company operates a forging shop in DeKalb, Illinois. OSHA inspected the shop under a warrant. DeKalb did not refuse to honor the warrant, and it did not challenge the warrant's validity in any forum other than the Commission. Following the inspection, OSHA issued a citation alleging that DeKalb violated seven subsections of the hearing conservation amendment to the occupational noise standard, 29 C.F.R. ї 1910.95. A second citation arising from the same inspection alleged that DeKalb had violated two subsections of 29 C.F.R. ї 1910.20, entitled "Access to employee exposure and medical records." Administrative Law Judge Ralph B. Maxwell relied on a decision of a panel of the United States Court of Appeals for the Fourth Circuit that the hearing conservation amendment was invalid; he therefore vacated all items in the first citation. He also vacated the items in the second citation, apparently concluding that the invalidity of the hearing conservation amendment relieved DeKalb from its duty to comply with the cited subsections of section 1910.20.

The Secretary obtained Commission review of the judge's decision. The issues raised by the parties on review involve whether the hearing conservation amendment is invalid, whether evidence should be suppressed because the inspection under the warrant was unlawful, and whether DeKalb was subject to discriminatory enforcement in violation of its due process and equal protection rights. For the reasons that follow, we conclude that the evidence obtained during the inspection should not be suppressed, that DeKalb's arguments against the validity of the hearing conservation amendment are not pertinent to the violations at issue in this case, and that DeKalb's due process and equal protection rights were not violated.

I. Inspection Issues

The warrant under which DeKalb's forge shop was inspected was issued on February 4, 1983, by a magistrate of the United States District Court for the Northern District of Illinois. According to the warrant application, the workplace was chosen for inspection in accordance with a general administrative plan for enforcement of the Act. DeKalb filed a motion before Judge Maxwell to suppress the evidence gathered during the inspection on the basis that the warrant was invalid. In a pre-hearing ruling, the judge denied DeKalb's motion.

The parties then agreed to waive a hearing on the merits and to submit the case for disposition upon stipulated facts. The stipulation incorporated by reference the parties' "prior controversy" concerning the validity of the warrant.[[1]] DeKalb makes five separate arguments that the inspection was unlawful.

DeKalb argues that OSHA's inspection program was unlawful because the Secretary's written procedures that define the scope and the manner in which inspections will be conducted, which are set forth in OSHA's Field Operations Manual (FOM), were not published in compliance with section 3 of the Administrative Procedure Act ("APA"), 5 U.S.C. ї 552(a)(1).[[2]] Section 552(a)(1) requires publication of certain agency documents in the Federal Register. DeKalb claims that it was adversely affected by the Secretary's failure to follow the APA, since under the FOM it was subject to a wall-to-wall inspection of its facility rather than a less intrusive search.

In Phoenix Forging Co., 85 OSAHRC ______, 12 BNA OSHC 1317, 1321-24, 1984-85 CCH OSHD І 27,256, pp. 35,213-16 (No. 82-398, 1985), the Commission recently rejected the very similar argument that an inspection was unlawful because the Secretary failed to publish an OSHA enforcement directive in compliance with the APA. Phoenix was based upon the well-established principle of law that an agency need not comply with the publication requirements of section 552 if its document does not impose obligations or contain matters to which persons must refer in formulating their conduct towards the government. Following the same analysis as in Phoenix, we conclude that the FOM falls outside of the publication requirement of section 552(a)(1). While the FOM contains procedural guidelines for the conduct of OSHA inspections, the FOM does not impose any obligations upon employers. Accordingly, we reject DeKalb's argument that the inspection was unlawful because the Secretary failed to publish the FOM in accordance with section 552(a)(1) of the APA.

DeKalb also contends that the warrant is overly broad in scope in two respects, which we will discuss separately. First, DeKalb points out that paragraph E.4.e of OSHA Instruction CPL 2.25C, which was attached to the warrant application, provides that all programmed health inspections shall be "conducted within the guidelines . . . in the Field Operations Manual." Chapter III, ї D.8.d(2) of the FOM in turn provides that, when an employee complaint is made during the inspection, the inspector "shall inspect, where possible, for the alleged violation and record the findings." DeKalb argues that this FOM provision violates the Fourth Amendment to the Constitution because it requires the investigation of employee complaints made during the inspection regardless of whether they are supported by probable cause.

We reject this argument. DeKalb is arguing that the warrant is overbroad because of material contained in the application. However, it is the warrant that controls the permissible scope of an inspection, not the warrant application. DeKalb's argument amounts to nothing more than speculation that an OSHA inspector might conduct a broader inspection than a warrant authorizes because instructions in the FOM might be read to expand the permissible scope of an inspection. When and if this occurs, an employer may seek appropriate relief from the Commission. See Pennsylvania Steel Foundry & Machine Co., 86 OSAHRC _____, 12 BNA OSHC 2017, 2025, 1986 CCH OSHD І 27,671, p. 36,069 (No. 78-638, 1986), pet. for review filed, No. 86-3546 (3d Cir. Sept. 8, 1986). We note also that the warrant authorized a full-scope inspection; it is therefore difficult to imagine how any employee complaint could have caused a compliance officer to investigate matters beyond the scope of the warrant.

DeKalb also contends that the warrant was overly broad in scope because it was not limited to the civil, remedial aspects of the Act. DeKalb asserts that the warrant should have been so limited, because it was obtained under an administrative, rather than a criminal, probable cause standard.

In ruling on this argument, Chairman Buckley and Commissioner Wall agree that the Commission ought not to suppress the evidence. However, Chairman Buckley would not reach the merits of the argument because it questions the judgment of the magistrate in issuing the warrant, rather than the conduct of OSHA personnel. In Chairman Buckley's view, the Commission, as an agency within the executive branch, has no authority to review the actions of a judicial officer of a court created under Article III of the Constitution. E.g., Phoenix Forging, 12 BNA OSHC at 1319, 1985 CCH OSHD at pp. 35,211-12 (view of Chairman Buckley), and cases cited therein.

Commissioner Wall does not limit his inquiry in the manner of Chairman Buckley. In his view, the Commission has the authority to rule on issues concerning the scope of the warrant in determining whether evidence should be suppressed. See Pennsylvania Steel, 12 BNA OSHC at 2023-24, 1986 CCH OSHD at p. 36,067 (view of Commissioner Wall)(Commission has authority to determine whether warrant is supported by probable cause). He therefore rejects DeKalb's argument because it is without merit. There is no evidence that OSHA personnel suspected criminal violations, or were seeking to find evidence of such violations. Rather, based on this record, the conclusion must be drawn that this inspection, like the vast majority of OSHA inspections, focused upon the civil provisions of the Act.[[3]] Probable cause in the administrative sense was, therefore, all that was necessary. Michigan v. Tyler, 436 U.S. 499 (1978); Donovan v. Wollaston Alloys, Inc., 695 F.2d 1, 4-5 (1st Cir. 1982). There is also no occasion in this case to consider whether the warrant precluded the inspector from observing evidence of criminal conduct during the inspection. This is not a criminal prosecution. If evidence were gathered under this warrant to support a criminal prosecution against DeKalb, DeKalb could raise its objection to the warrant and move to suppress the evidence in the criminal proceeding.

DeKalb argues that the inspection was unlawful because, according to the dates listed in the citations and the stipulation, part of the inspection occurred after the warrant's time limit had expired. DeKalb points out that the warrant, which was issued on February 4, 1983, required that a return be made to the court within 10 days showing that the inspection had been completed. However, the citations and the stipulation list the inspection dates as February 10 through March 10, 1983. DeKalb therefore asserts that this case presents a "stipulated violation" of its Fourth Amendment rights.

DeKalb's argument is without merit. Although DeKalb's brief does not mention the fact, the stipulation itself indicates that the warrant's limits were not exceeded, since it states that DeKalb's workplace was inspected "pursuant to the authority of, and . . . in accordance with, the terms of a warrant issued on February 4, 1983 . . . ." Further, the stipulation contains, in numbered paragraphs, brief descriptions of the facts underlying each alleged violation; in each of these descriptions, the date listed is either February 10 or February 11, 1983. The listing of those dates creates the strong inference that OSHA gathered its evidence with respect to the cited items before the warrant's time limit expired. Viewing the stipulation as a whole, we conclude that it establishes that the inspection was conducted in compliance with the warrant, rather than in an unlawful manner as DeKalb claims.

DeKalb's remaining two suppression arguments concern whether the warrant was supported by probable cause. Inasmuch as these arguments relate directly to the judgment of the magistrate in issuing the warrant, Chairman Buckley concludes that the Commission has no authority to review them. Although Commissioner Wall would review these issues, he would not suppress the evidence.

DeKalb argues that the warrant was invalid because the issuing magistrate was not provided with enough information to establish probable cause. The warrant application stated that employers were selected and scheduled for administrative plan inspections according to an inspection register prepared in each OSHA Area Office. The application also stated that, in determining which employers would be selected for health inspections, OSHA ranks industries according to the degree of exposure to potential health hazards, and that DeKalb's industry currently ranked eleventh on that list. However, neither the inspection register nor the industry rank list was presented to the magistrate. DeKalb contends that, as a result, the magistrate was not presented with sufficient information to determine whether DeKalb was appropriately selected under OSHA's administrative plan for inspections, or whether the warrant conformed with the plan's provisions.

The Supreme Court in Marshall v. Barlow's, Inc., 436 U.S. 307, 320 (1978), held that probable cause for an administrative search may be established by a showing that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular establishment. While Barlow's did not state specifically what averments in a warrant application, at a minimum, would meet that probable cause standard, the Seventh Circuit was presented with that issue in Marshall v. Chromalloy American Corp., 589 F.2d 1335, 1341-43 (7th Cir. 1979). In Chromalloy, the warrant affidavit stated that an inspection was sought based upon a "National-Local plan designed to achieve significant reduction in the high incidence of occupational injuries and illnesses found in the metal-working and foundry industry." The Seventh Circuit, relying entirely upon the above-quoted language, held that the affidavit was sufficient to establish probable cause for an administrative plan inspection, and therefore the warrant was valid. The Seventh Circuit specifically rejected the argument that the magistrate must be presented with information such as "a complete set of updated industry statistics, the validity of these statistics, the rationale for applying a particular index factor to the [employer's] industry, and the reason for inspecting [that industry] in lieu of another industry." 589 F.2d at 1342. See also Marshall v. Milwaukee Boiler Manufacturing Co., 626 F.2d 1339, 1345-46 (7th Cir. 1980)(holding in Chromalloy reaffirmed).

Commissioner Wall concludes that the Commission is bound to follow the decisions of the courts of appeals in cases within the jurisdictions of those courts. Synkote Paint Co., 86 OSAHRC _____, 12 BNA OSHC 2036, 2042-43, 1986 CCH OSHD І 27,675, p. 36,089 (No. 83-2, 1986). DeKalb is located in the Seventh Circuit. Commissioner Wall would therefore reject DeKalb's suppression argument under Chromalloy. Because the warrant application in this case is much more detailed in describing OSHA's inspection plan than the warrant application approved in Chromalloy, the magistrate was provided with sufficient information to support a finding of probable cause.[[4]] Accordingly, Commissioner Wall concludes that the evidence should not be suppressed.[[5]]

Finally, DeKalb contends that the evidence should be suppressed because the magistrate was not informed of DeKalb's inspection history or of the desired frequency that OSHA would inspect companies listed on the inspection register. DeKalb asserts that, without this information, the magistrate could not know whether DeKalb was being harassed by multiple inspections within a short period of time, or whether the selection of DeKalb was inconsistent with OSHA procedures concerning the timing of inspections. DeKalb does not claim, however, that it was actually harassed by OSHA, or that OSHA incorrectly followed its procedures.

Commissioner Wall concludes that the evidence should not be suppressed. The magistrate was given some assurance that DeKalb would not be subject to excessively frequent inspections, since the warrant application asserted that OSHA instruction CPL 2.25C (which was attached to the application) would be followed. Section 1.1.a.(2)(b)(D) of CPL 2.25 states that a programmed health inspection of an establishment will not be conducted if a:

[s]ubstantially complete health inspection has been conducted within the current or previous three fiscal years with no serious violations cited or, where serious violations were cited, an acceptable abatement letter or a follow-up inspection has documented "good faith" efforts to abate all serious hazards.

Commissioner Wall finds that the magistrate was entitled to presume that the Secretary was following these criteria.

II. The Validity of the Standards

The parties stipulated before Judge Maxwell that "violations of the standards occurred as described in the Citations." Those standards are part of the hearing conservation amendment to the occupational noise standard, 29 C.F.R ї 1910.95 (1982);[[6]] the amendment is at sections 1910.95(c)-(s). The parties reserved, however, the question of the validity of the standards for decision by the judge. Judge Maxwell held that the standards were invalid, citing a decision on a pre-enforcement challenge to the standards under section 6(f) of the Act, 29 U.S.C. ї 655(f), by a panel of the United States Court of Appeals for the Fourth Circuit. Forging Industry Association v. Secretary of Labor, 748 F.2d 210 (1984). After the Commission granted the Secretary's petition for discretionary review of Judge Maxwell's decision, the Fourth Circuit, sitting en banc, vacated the panel decision and rejected the challenges mounted against the standard. Forging Industry Association v. Secretary of Labor, 773 F.2d 1436 (1985) (en banc). After this en banc decision was issued, DeKalb--who is represented by the same attorney who represented the Forging Industry Association in its challenge to the amendment in the Fourth Circuit--no longer pressed all the challenges it had urged before Judge Maxwell. Instead, it maintained only that the standard is invalid in one respect. We therefore shall confine our review accordingly.

DeKalb claims that that the hearing conservation amendment is invalid because it is directed toward the conservation of employee hearing rather than an occupational hazard such as noise. DeKalb reasons that while noise is a hazard, and therefore may be regulated under the Act, hearing loss is not. Hearing loss, it argues, is a personal infirmity stemming from causes in addition to noise, such as age, injury and disease. DeKalb also argues that because the standard applies to hearing loss caused by noise outside the workplace, it is outside OSHA's power to adopt.

DeKalb's argument does not focus on specific subsections of section 1910.95 and explain why they are invalid as applied to the facts alleged in specific citation items. It attacks the validity of the hearing conservation amendment in very general terms. DeKalb's approach is not helpful to us in deciding this case, for we do not sit to pass upon abstract arguments. See, e.g., Equitable Shipyards, Inc., 85 OSAHRC ____, 12 BNA OSHC 1288, 1293, 1984-85 CCH OSHD І 27,237, pp. 35,163-64 (No. 81-1685, 1985)(controversy about informer's statements not relevant to disputed citation items).

We have considered whether DeKalb's argument relates to the specific citation items before us and the specific subsections of the standard that they cite. We find that, on this record, DeKalb's argument is irrelevant to the citation items before us. We therefore find it unnecessary to pass on the Secretary's arguments that DeKalb should be collaterally estopped from attacking the standard; that DeKalb should be precluded from raising the issues now because its trade association, the Forging Industry Association, had a full opportunity to do so before the Fourth Circuit; and that the Commission should defer to the Fourth Circuit's decision in the pre-enforcement challenge.

Some provisions of the hearing conservation amendment require employers to take action only if, as documented by audiometric testing, an employee has experienced hearing loss. E.g., subsections 1910.95(j)(8) and (m)(3). Those provision do not make a distinction between hearing loss caused by workplace noise and hearing loss caused by other reasons. If DeKalb had been cited for violations of these provisions, its arguments therefore would have been relevant. But it was not. As we shall discuss in the next paragraph, many cited provisions of the hearing conservation standard are not triggered by hearing loss but by workplace noise levels above 85 dBA. Others that are applicable to hearing loss are also applicable if other conditions obtain, such as workplace noise levels above 85 dBA. DeKalb concedes that the average noise level in its workplace exceeded 85 dBA. It agrees with OSHA's allegation that six of its employees received noise doses from 390.2 to 999.9 percent of a permissible daily dose; these doses are equivalent to receiving eight-hour, time-weighted exposures ranging from 99.8 to 106.6 dBA. See Table A-1 of Appendix A to section 1910.95. Further, DeKalb concedes in its brief that excessive on-the-job noise for long periods of time can be a hazard to employees; it does not argue on review that the Secretary lacks the authority to regulate noise exposure based upon workplace noise levels.

We find that none of the citation items before us allege that cited subsections of the hearing conservation amendment are applicable because DeKalb's employees experienced hearing loss.

--Subsection 1910.95(c), cited in item 1A, generally requires a hearing conservation program. It is applicable when average workplace noise levels equal or exceed 85 dBA.

--Subsection (e)(1), cited in item 1B, requires that employees take steps to monitor workplace noise levels and determine if they exceed 85 dBA.

--Subsection (1)(5), cited in item 1C, is triggered by the use of hearing protectors. They are required by subsections (1)(2)(ii) and (b)(1) when noise levels exceed 90 dBA; as we noted above, however, the average noise here exceeded 90 dBA.

--Subsection (m)(1), cited in item 1D, requires the employer to evaluate hearing protector attenuation in the specific noise environment in which hearing protectors will be used; like subsection (1)(5), it is apparently triggered by the use of hearing protectors.

--Subsection (m)(2), cited in item 1E, is apparently triggered by either the use of hearing protectors or by noise levels above 90 dBA.

--Subsection (n)(1), cited in item 1F, is expressly applicable when average noise levels exceed 85 dBA.

--Finally, subsection (o)(1), cited in item 1G, requires that copies of section 1910.95 be made available to "affected employees" and that the employer post a copy of the standard in the workplace. Obviously, "affected employees" include those exposed to average noise levels above 85 dBA.

In sum, the citation items before us do not cite provisions of the hearing conservation amendment that are triggered only by hearing loss. They do not allege that a cited provision is applicable because hearing loss has occurred and they do not attempt to regulate non-workplace noise. We therefore reject DeKalb's argument that the cited provisions are invalid on the ground that they regulate hearing loss or non-workplace noise.

III. Discriminatory Enforcement

DeKalb contends that the hearing conservation amendment was discriminatorily enforced against it.[[7]] It notes the Secretary did not move to withdraw in this case, while other employers had the benefit of a moratorium on the enforcement of that standard. On December 5, 1984, shortly after the panel in the Forging Industry case held that the hearing conservation amendment was invalid, OSHA temporarily halted enforcement of that standard. Under this self-imposed moratorium, OSHA announced that, until further notice, it would not cite employers under the hearing conservation amendment, and it would withdraw all citations under that standard where the 15-day notice of contest period had not yet expired. However, for cases that had been contested, and thus were pending before the Commission, OSHA determined that it would seek stays of the hearing dates, rather than withdraw the citations. On April 19, 1985, after the Fourth Circuit granted the Secretary's petition for a hearing en banc in the Forging Industry case, OSHA ended the enforcement moratorium and resumed full enforcement of the hearing conservation amendment. DeKalb asserts that, during the five-month period when the enforcement moratorium was in effect, it was treated differently from all employers who were not cited under the hearing conservation amendment, or who had citations withdrawn as a result of the moratorium. For this reason, DeKalb claims that its constitutional rights of due process and equal protection were violated, and it seeks dismissal of the items cited under the standard.

As a general rule, prosecutors have broad discretion as to whom to prosecute. Wayte v. United States, 105 S.Ct. 1524, 1531 (1985). This broad prosecutorial discretion applies to the authority of the Secretary to prosecute violations of the Act. Cuyahoga Valley Railway v. United Transportation Union, 106 S.Ct. 286 (1985). Moreover, the conscious exercise of some selectivity in enforcement by itself is not a constitutional violation. Oyler v. Boles, 368 U.S. 488, 506 (1962). Rather, a claim of selective prosecution is judged by ordinary equal protection standards,[[8]] under which it must be shown that the alleged selective enforcement had a discriminatory effect and was motivated by a discriminatory purpose. Wayte, 105 S.Ct. at 1531; United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir. 1985). In particular, the decision to prosecute may not be "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Wayte, 105 S.Ct. at 1531 (citation omitted).

In this case, there is no evidence that OSHA's enforcement moratorium was arbitrary or based upon an unjustifiable standard, such as race or religion. Therefore, DeKalb's claim is insufficient to establish an equal protection violation. Wayte, 105 S.Ct. at 1531-32. Further, employers such as DeKalb, whose cases were on review before the Commission during the moratorium, did not face disproportionate obligations under the Act as compared to other employers. Under section 10 of the Act, 29 U.S.C. ї 659, an employer is not required to correct violations of the Act or pay penalties until after the entry of a final Commission order. Further, the only action taken by the Secretary during the moratorium period was to petition the Commission for review of a judge's decision that was rendered during that period. This was fully consistent with the treatment afforded other employers in cases in which a notice of contest had been filed and the case heard: the petition had the effect of staying a final decision in the case without prejudice to the Secretary. Failure to have done so would have been the equivalent of withdrawing the citation, which would have changed rather than preserved the status quo. Therefore, the moratorium had no discriminatory effect upon DeKalb. Accordingly, we conclude that DeKalb's constitutional rights were not violated.

IV. The ї 1910.20 Record-Access Citation; Penalties

Item 1A of citation 2 alleges that DeKalb violated 29 C.F.R. ї 1910.20(e)(3)(i) because, during the inspection, DeKalb denied the investigating industrial hygienist access to employee noise exposure records. Item 1B of citation 2 alleges that DeKalb violated 29 C.F.R. ї 1910.20(g)(2) because it did not make readily available to employees copies of that standard.[[9]] The stipulation provides that "violations of the standards occurred as described in the Citations."

DeKalb argues that, if the Commission concludes that the monitoring requirements under the hearing conservation standard at section 1910.95(e)(1) are invalid, it should not be found in violation of section 1910.20(e)(3)(i). It asserts that employers should not be required to provide access to records compiled under an invalid standard. However, since we ruled above that DeKalb's invalidity argument is infirm with respect to the monitoring requirements of section 1910.95(e)(1), we also conclude that DeKalb was properly cited under section 1910.20(e)(3)(i) for failure to provide OSHA with access to employee exposure records required under the hearing conservation amendment.

Finally, DeKalb contends that the inspection warrant did not authorize OSHA to obtain employee exposure records, since the warrant was limited to "a review of records required by the Act." DeKalb points out that the requested records were not required by the Act, but rather by section 1910.95. The argument is without merit. In promulgating section 1910.95(q)(1), which requires that noise exposure records be maintained, the Secretary acted under the authority of section 8(c)(1) of the Act, 29 U.S.C. ї 657(c)(1), which grants the Secretary the authority to issue recordkeeping regulations. Thus, the employer's obligation to maintain such records flows from the Act, and the warrant therefore authorized OSHA to examine them.

The parties stipulated that the appropriate penalty for citation No. 1 is $450, and that no penalty should be assessed for citation No. 2. The parties did not offer any argument concerning the penalty. We assess the penalty amounts agreed to in the stipulation.

Accordingly, citation no. 1 is affirmed, and we assess a $450 penalty. Citation no. 2 is affirmed without penalty.

FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary

DATED: MAR 17 1987

SECRETARY OF LABOR,
Complainant

DEKALB FORGE COMPANY,
a Corporation,
Respondent.

OSHRC DOCKET NO. 83-0229

DECISION

The respondent is charged with violating the Federal safety standard relating to occupational noise exposure. There are two citations. One is a seven-item "Serious" citation. The second is a two-item "Other" citation.

The facts are not in dispute. They have all been stipulated. The only issues are legal ones. They relate to the validity of the hearing conservation standard under which the respondent is charged.

The standard here challenged is 29 CFR 1910.95. This standard was promulgated by complainant in its present form in 1983 as an amendment to a previously existing hearing conservation regulation. Respondent contends that the amended version is invalid because it exceeds the authority granted the Secretary of Labor under the Occupational Safety and Health Act.

The main thrust of respondent's challenge is that the standard "attempts to go far beyond regulation of workplace hazard." (Resp. bf. p. 7) Respondent points out that the Act grants authority to regulate possible sources of injury and illness only in the workplace. However, according to respondent, the standard requires employers "to take actions which are triggered by subjective physical conditions of individual employees even when those conditions do not result from employment hazards." (Resp. bf. p. 4)

As a threshold matter, the Secretary argues that respondent may not challenge the validity of a standard in an enforcement action. Such a challenge, he contends, may only be made in the U.S. Court of Appeals within 60 days after a standard is promulgated. See Sec. 6(f) of the Act.

Commission precedent does not agree with the Secretary's position. In Kennecott Copper Corp., the Commission stated, "Complainant's contention that the Commission lacks authority to review the validity of a standard is rejected." 4 OSHC (1976) affirmed 577 F2d 1113 (10th Cir. 1977). See also Rockwell International Corp., 9 OSHC 1092 (1980); Weatherby Engineering Co., 9 OSHC 1292 (1981).

Thus we reach the principal question: Does the 1983 hearing conservation amendment exceed the scope of OSHA's authority?

Until last month, this question had never been ruled on, either by the Commission or in the courts. On November 7, however, the Fourth Circuit U.S. Court of Appeals struck down the new standard. Forging Industry Association v. Secretary of Labor No. 83-1420.

The Fourth Circuit Court, upon examining the language of the Act, found that Congress had permitted OSHA to adopt "only those standards which relate to health and safety at the workplace." (Emphasis by the court) The revised standard, according to the court, would improperly require an employer to take action relating to hazards existing outside the workplace. The Circuit Court said:

A standard is invalid if it requires an employer to take actions in regard to hazards existing outside the workplace. It is clear from the language of the hearing conservation amendment, as well as the record before this court, that under the amendment employers may be subjected to requirements and penalties may be imposed as a result of non-workplace hazards. The amendment's requirements are triggered whenever an employee suffers a standard threshold shift loss in hearing. It is obvious that such a hearing loss can result from non-occupational noise exposure just as easily as it can from occupational exposure. Airplanes, hunting rifles, loud music and a myriad of other sources produce noise potentially as damaging as any at the workplace. Yet the Amendment makes no distinction between hearing loss caused by workplace sources and loss caused by non-workplace sources. The rule-making record clearly provides that once a hearing loss is found, the amendment requires the same actions by the employer "whether or not the (loss) is work-related," 48 Fed. Reg. 9764/2, and that the subject rule contains no requirement that there be "a determination of work relatedness." Id. at 9678/1. (Emphasis by the court)

The soundness of this view, as well as the constraints of the salutary rule of stare decisis oblige me to adopt the same course in the instant case. I therefore conclude that 29 C.F.R. 1910.95 is invalid, and that the citations herein should be vacated.

ORDER Serious Citation No. 1 and Other Citation No. 2 are hereby in all things vacated.

Ralph B. Maxwell
Judge, OSHRC

Dated: January 9, 1985

FOOTNOTES:

[[1]] We take this to mean that all evidence possessed by the Secretary in support of the alleged violations was gathered pursuant to the warrant and that suppression of that evidence would require that the citations be vacated.

[[2]] The 1983 version of OSHA's Field Operations Manual is reproduced in CCH Employment Safety & Health Guide, OSHA Field Operations Manual and Industrial Hygiene Field Operations Manual (1983). DeKalb refers to the FOM generally, without stating which particular provisions of the FOM should have been published. We note that Chapter III of the FOM is titled "General inspection Procedures," and section D of that chapter is titled "Conduct of the Inspection." As DeKalb notes in its brief, the FOM is incorporated by reference within OSHA instruction 2.25C, and that instruction was attached to the warrant application.

[[3]] Commissioner Wall also notes that criminal prosecution under the Act is extremely rare.

[[4]] DeKalb cites Brock v. Gretna Machine & Ironworks, 769 F.2d 1110 (5th Cir. 1985), where the Fifth Circuit held that a warrant was defective because it did not contain an adequate description of the manner in which the employer was selected for a programmed health inspection. While the holding in Gretna is consistent with DeKalb's argument here, there is no indication that this case is appealable to the Fifth Circuit. Therefore, Commissioner Wall will not apply Gretna to this case.

[[5]] DeKalb also argues that the magistrate was not presented with sufficient information to inform him of the scope of the inspection and the manner in which it would be conducted. Commissioner Wall concludes that this argument is without merit, since the warrant application clearly indicated that a full-scope OSHA inspection was requested, and adequately described the manner in which it would be performed. Cf. Chromalloy, 589 F.2d at 1343-44 (warrant's language sufficiently apprised employer of inspection's scope and purpose). Further, because the warrant application was sufficiently specific in describing OSHA's inspection procedures, Commissioner Wall also rejects DeKalb's argument that the warrant was defective because the magistrate was not presented with the pages of the Field Operations Manual that described how the inspection would be conducted.

[[6]] All citations are to the 1982 edition of the Code of Federal Regulations, which contains the version of the hearing conservation amendment that DeKalb is alleged to have violated.

[[7]] The parties' stipulation did not expressly reserve this issue for decision. We review it here because the events of which DeKalb complains arose after the stipulation was entered into.

[[8]] The equal protection clause of the Fourteenth Amendment to the Constitution applies only to the states. However, equal protection may be implicitly required under the due process clause of the Fifth Amendment, which applies to the federal government. See generally Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

[[9]] With respect to this item, the stipulation provides that DeKalb did not make readily available to employees copies of section 1910.95. This reference to section 1910.95 appears to be, inadvertent. We conclude, based on the wording of the citation and of ї 1910.20(g)(2) that the parties intended to stipulate that copies of section 1910.20 were not made readily available to employees.