SECRETARY OF LABOR,
Complainant,

v.

PENNSYLVANIA STEEL FOUNDRY & MACHINE
COMPANY,
Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO,

Authorized Employee
Representative.

OSHRC Docket No. 78-0638

_DECISION_

BEFORE:  BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 651-678 ("the Act").  The Commission is
an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration ("OSHA").  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. § 659(c).

_I.  Background_

In August 1977, a warrant was issued upon an _ex_ _parte_ application,
empowering OSHA "to conduct an inspection pursuant to OSHA's National
Emphasis Program for Foundries" ("Foundry NEP") of the Harrisburg,
Pennsylvania foundry of the Pennsylvania Steel Foundry & Machine Company
("Penn Steel").  The warrant authorized OSHA to inspect the foundry "in
accordance with the guidelines" set forth in the Foundry NEP.

A team of OSHA compliance officers inspected the Penn Steel facility for
nearly a month.  As a result of the inspection, the Secretary issued
three citations alleging 298 violations of OSHA standards.  Penn Steel
contested all of the alleged citation items.

Protracted settlement discussions ensued.   Eventually, the parties
agreed to litigate some of the citation items while continuing to try to
settle the case.  In January 1979, Administrative Law Judge Joseph Chalk
heard evidence on the 58 citation items that the parties could not agree
upon during their settlement discussions.  The hearings on the 58 items
closed and the parties, including the United Steelworkers of America,
continued their settlement discussions.

In August 1979, Penn Steel moved for summary judgment claiming that the
warrant authorizing the inspection was invalid on two grounds:   that it
was not based on probable cause, citing _Marshall v. Barlow's, Inc_.,
436 U.S. 307 (1978); and that warrants could not be issued _ex_ _parte_,
citing _Cerro Metals Products v. Marshall_, 467 F. Supp. 869 (E.D. Pa.
1979), _aff'd_, 620 F.7d 964 (3d Cir. 1980).  In _Barlow's_, the Supreme
Court held that a search of a business under the Occupational Safety and
Health Act could not be conducted without a warrant supported by
probable cause.  In _Cerro_, the Eastern District Court of Pennsylvania
held that _ex_ _parte_ warrants were not permissible under the
then-existing version of 29 C.F.R. § 1903.4, a regulation governing
OSHA's resort to search warrants.  Both _Barlow's_ and _Cerro_ were
decided after the inspection of the Penn Steel foundry.  Judge Chalk
denied the motion for summary judgment, stating that he would not apply
the _Barlow's_ or _Cerro_ cases retroactively.

The parties continued their settlement negotiations and in June 1980,
Judge Chalk issued a preliminary decision.  In the preliminary decision,
Judge Chalk addressed the 58 citation items on which evidence was
presented and affirmed some of the citation items and vacated others.  A
year later, the parties settled the remaining items and agreed in a
settlement agreement that Judge Chalk's disposition of the 58 citation
items set forth in his preliminary decision would take effect.  In July
1981, Judge Chalk issued his final decision.  It incorporated by
reference and implemented his preliminary decision and the settlement
agreement.

Both parties petitioned the Commission for review.  In its petition,
Penn Steel repeated its contention that the "inspection was invalid
because it was conducted pursuant to a warrant issued on an _ex_ _parte_
basis and without probable cause and that all evidence collected during
said inspection should have been suppressed."  Penn Steel also
petitioned for review of a number of citation items disposed of by Judge
Chalk, but did not seek review of the settlement agreement.  The
Secretary petitioned for review of only three citation items that were
vacated by the judge.

Former Commissioner Cottine directed review on the issues contained in
the Secretary's petition for review, including:

(1) Whether the Judge erred in vacating Citation No. 1, items 45(g) and
(h) alleging noncompliance with 29 C.F.R. § 1910.212(a)(1) on the
grounds that "there was no evidence that the grinders have been operated
within the statutory period or that when operated, they presented a
hazard [to] employee; operating them."

(2) Whether the Judge erred in vacating Citation No. 1, item 46(a)
alleging noncompliance with 29 C.F.R. § 1910.212(a)(3)(ii) on the
grounds that guarding of the cited machine was impossible and the
alternative method of protection was not required by the standard.

Former Chairman Rowland also added the following issues:

Whether the judge erred in finding [Penn Steel] in violation of the Act
as alleged in the following items of citation No. 1:  items 50, 53(a),
53(e), 63a(a), and 63a(b).

Supplemental briefs were requested and the parties were asked to address
several more issues.[[1]]  Oral argument was held before the Commission
on March 26, 1986.[[2]]

The questions before the Commission involve whether evidence should be
suppressed because the inspection under the warrant was invalid, whether
Penn Steel should be allowed to withdraw from the settlement agreement,
and the merits of a few litigated citation items.[[3]]  For the reasons
that follow, we hold that the evidence should not be suppressed, that
judgment on the 240 unlitigated citation items should be entered in
accordance with the settlement agreement, and that Judge Chalk's
decision as to several litigated citation items should be affirmed as to
some and reversed as to others.

II.  Validity of the Inspection; Suppression of Evidence.

Penn Steel argues that the inspection was invalid because OSHA proceeded
contrary to its regulation in obtaining an _ex_ _parte_ warrant.  At the
time of the inspection of the Penn Steel foundry in August 1977, the
regulation governing OSHA inspections in the face of an employer's
objection, 29 C.F.R. § 1903.4, stated in part:

§ 1903.4 _Objection to inspection_.

(a) Upon a refusal to permit a Compliance Safety and Health Officer, in
exercise of his official duties, to enter without delay and at
reasonable times any place of employment . . . [t]he Compliance Safety
and Health Officer shall endeavor to ascertain the reason for such
refusal, and shall immediately report the refusal and the reason
therefore to the Area Director.  The Area Director shall consult with
the Regional Solicitor, who shall take appropriate action, including
compulsory process, if necessary.

(Emphasis added.)  In _Cerro Metal Products v. Marshall_, 620 F.2d 964
(3d Cir. 1980), the Third Circuit held that the original version of this
regulation did not permit OSHA to seek a warrant in an _ex_ _parte_
proceeding.  Penn Steel contends that the Commission must apply the
holding of _Cerro_ to this case because it arises within the Third
Circuit, and that the evidence gained through the inspection should
therefore be suppressed.  Penn Steel also argues that the evidence
should be suppressed for various other reasons.

A.  Retroactivity

Even if the warrant here would be declared invalid by the Third Circuit
under Cerro, the question of retroactivity must be considered.  In
deciding whether a decision construing the Fourth Amendment should be
applied retro-actively, the Commission has been guided by _United States
v. Johnson_, 457 U.S. 537 (1982).  _See_ _Carl M. Geupel Construction
Co_., 82 OSAHRC 60/B5, 10 BNA OSHC 2097, 2100 n.7, 1982 CCH OSHD ¶
26,309, p. 33,282 n.7 (Nos. 81-55 and 81-56, 1982).[[4]]  In _Johnson_,
the Court reviewed the question of retroactivity and found that Fourth
Amendment cases were generally applied retroactively unless the case was
a "clear break with the past."  _Johnson_, 457 U.S. at 549.  The Court
stated that a decision was not generally considered a "clear break"
unless that ruling caused "such an abrupt and fundamental shift in
doctrine as to constitute an entirely new rule which in effect replaced
an older one," . . . . Such a break has been recognized only when a
decision explicitly overrules a past precedent of this Court, . . . or
disapproves a practice this Court arguably has sanctioned in prior
cases, . . . or overturns a longstanding and widespread practice to
which this Court has not spoken, but which a near-unanimous body of
lower court authority has expressly approved.

457 U.S. at 551 (citations omitted).

This case does not fall neatly into two of the non-retroactivity
categories in _Johnson_.  _Cerro_ did not overturn or disapprove of a
line of OSHA case law that had endorsed the seeking of an OSHA
inspection warrant _ex_ _parte_.  As far as case law was concerned,
_Cerro_ wrote on an almost clean slate.  This case instead falls within
the category of cases involving an arguably-sanctioned practice--the
seeking of warrants _ex_ _parte_.

When the warrant in this case was issued in August of 1977, no court had
disapproved of OSHA's practice of seeking some inspection warrants
without the participation of the party to be inspected.  Indeed, when
the warrant was issued, even the requirement for OSHA to seek a warrant
was still uncertain.   The Supreme Court's decision in _Barlow's_,
holding for the first time that a warrantless search of a business under
the Occupational Safety and Health Act violated the Fourth Amendment,
was decided almost a year later.  The body of OSHA inspection warrant
law that was then evolving tended, however, to look to the model of the
criminal search warrant for guidance on how to proceed.  Yet, criminal
search warrants had been _ex_ _parte_ as a rule.  As the Supreme Court
noted in _Franks v. Delaware_, 438 U.S. 154, 169 (1978), "[t]he
pre-search proceeding is necessarily _ex_ _parte_, since the subject of
the search cannot be tipped off to the application for a warrant lest he
destroy or remove evidence."

This practice would seemingly have fit the Occupational Safety and
Health Act well, for the Act imposes criminal penalties for giving
advance notice of inspections and the Secretary's regulations also
forbade such advance notice.  Section 17(f) of the Act, 29 U.S.C. §
666(f); 29 C.F.R. § 1903.6 (1977).   The language of section 1903.4, the
regulation that was critical to the _Cerro_ decision, did not expressly
require that adversary process be employed.  As the district court noted
in Cerro, the phrase "compulsory process" in the regulation encompasses
_ex_ _parte_ warrants.  467 F. Supp. at 875 n.9.  And as the Commission
later observed, and the facts of this case suggest, OSHA, as a practical
matter often--though by no means always, had sought warrants _ex_
_parte_.[[5]]   "That the OSHA field staff may frequently have sought
inspection warrants _ex_ _parte_ there seems no reason to doubt." 
_Cerro_, 467 F. Supp. at 874.

The holding of _Cerro_ that the original version of section 1903.4 did
not authorize OSHA to seek warrants _ex_ _parte_ was compelled not by
the language of section 1903.4 or by a universal practice by OSHA of
seeking warrants through adversary process, but by passages in the
Supreme Court's Barlow's opinion.  The _Cerro_ courts noted that this
language, which post-dated the issuance of the warrant here by almost a
year, was precipitated by the litigating position of the Solicitor
General before the Court.  The _Cerro_ courts viewed that litigating
position as having represented to the Supreme Court that section 1903.4
did not permit _ex_ _parte_ warrants.   _See_ 620 F.2d at 976; 467 F.
Supp. at 875 n.9.  However, this litigation position did not emerge with
clarity until after the warrant in this case was issued. The Solicitor
General's brief to the Court in _Barlow's_ did not at all suggest that
section 1903.4 required adversary process.  Only a hint of the position
came in the Solicitor General's jurisdictional statement, which urged
the Court to note probable jurisdiction of the appeal in _Barlow's_. 
Although the jurisdictional statement, which was filed on February 17,
1977, stated in a footnote that "[a]gency regulations currently require
the Secretary to obtain a court order authorizing entry if the inspector
is initially refused entry," the text on the same page stated that it is
"common"--rather than universal--in civil warrant practice to issue a
show cause order to the employer before compulsory process is obtained. 
Statement of Jurisdiction at 11 & n.13.  The Solicitor General's
position before the Court that adversary process was the rule became
clear only during oral argument on January 9, 1977, over four months
after the warrant in this _Penn Steel_ case was issued.  _See_ _Cerro_,
620 F.2d at 976-7 n.33 (noting text of oral argument).  In short, we
cannot say that the OSHA field officials who sought this warrant would
have had sufficient grounds to conclude from the predecisional events in
_Barlow's_ that section 1903.4 did not permit warrants to be sought _ex_
_parte_.  We therefore conclude that the _Barlow's_ decision, as applied
by the _Cerro_ courts, did overturn a previously unquestioned and
well-grounded practice and that events that preceded the _Barlow's_
decision did not evince disapproval of the common practice of seeking
_ex_ _parte_ warrants.[[6]] Accordingly, we do not apply Cerro
retroactively here.

B.  _Suppression as a Remedy_

In any event, if _Cerro_ were applied retroactively, we would not
exclude the evidence gathered during the inspection.  In criminal cases,
the exclusionary rule is applied only where the benefits of suppression
outweigh the cost of preventing the use of relevant evidence in law
enforcement proceedings.  _United States v. Leon_, 104 S.Ct. 3405,
3412-13 (1984).  In this case, we are dealing with an alleged violation
of a regulation rather than a Fourth Amendment violation, but we believe
that a similar balancing test should be employed.   _See_ _Brooks Woolen
Co_., 85 OSAHRC , 12 BNA OSHC 1233, 1236, 1985 CCH OSHD ¶ 27,233, p.
35,151 (Nos. 79-45 and 79-128, 1985) (view of Chairman Buckley),
_aff'd_, 782 F.2d 1066 (1st Cir. 1986).  As the Supreme Court has
pointed out, the suppression of illegally obtained evidence in criminal
cases produces the benefit that it deters law enforcement officers from
engaging in misconduct in the future when they are aware that the fruits
of such misconduct will not be admissible. _Leon_, 104 S.Ct. at 3418.  
It is similarly desirable to deter OSHA compliance officers from
obtaining evidence by illegal means. _Brooks Woolen_, 12 BNA OSHC at
1236, 1985 CCH OSHD at p. 35,151 (view of Chairman Buckley).

The alleged misconduct here is that OSHA obtained a warrant _ex_
_parte_.  When OSHA did so, however, it did not engage in any
intentional misconduct, but simply implemented a reasonable
interpretation of section 1903.4.  As we discussed above, when OSHA
applied for the warrant in the _ex_ _parte_ proceeding involved here,
OSHA was following one of its normal practices. Moreover, the regulation
on its face did not impose a strait-jacket on OSHA, requiring it to seek
warrants _ex_ _parte_ or not inspect at all.  Its language did not limit
OSHA to seeking "compulsory process" but simply stated that such process
is included among the "appropriate action[s]" to be taken "if
necessary."  The term "compulsory process," which was not defined in the
regulation, does not expressly forbid _ex_ _parte_ warrants.  Also, the
Supreme Court had not yet expressed the view that the regulation limited
OSHA to adversary proceedings and no federal court had ruled on the
question.  From this we conclude that OSHA's Judgment to use an _ex_
_parte_ warrant was not unreasonable in light of the state of the law at
the time.[[7]]  Finally, suppression here would have little deterrent
value, for in 1980 the Secretary amended section 1903.4 to specifically
allow _ex_ _parte_ warrants.  _See_ 45 Fed. Reg. 65916-24 (October 3,
1980).  We therefore do not find that suppression would be an
appropriate remedy here.

Commissioner Wall would add that this result would in any event be
compelled under _Leon_.   The OSHA officials who applied for this
warrant were obviously proceeding in good faith reliance on the
then-accepted practice of obtaining warrants _ex_ _parte_. Similarly, in
executing the warrant, they relied in good faith on the judgment of a
neutral and detached judicial officer that the workplace should be
inspected.   Commissioner Wall also concludes that in view of _Leon_,
the Commission's holding in _Sarasota_ _Concrete Co._, 81 OSAHRC 48/A2,
9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360 (No. 78-5264, 1981), _aff'd_,
693 F.2d 1061 (11th Cir. 1982), that no good faith exception is
available must be overruled.

_C.  Due Process_

Penn Steel also argues that its due process rights were denied because
it was denied an adversary hearing required by section 1903.4.  This is
not, however, a case where an individual has reasonably relied on an
agency regulation promulgated for his guidance or benefit and has
suffered substantially because of a violation of the regulation by the
agency.  _See United States v._ _Caceres_, 440 U.S. 741, 752-3 (1979). 
Here, we are not convinced that Penn Steel reasonably relied on
receiving an adversary hearing when the Secretary applied for the
warrant.   As we discussed above, when the Secretary obtained the
warrant in 1977 there was no judicial interpretation of section 1903.4. 
There were only the plain words of the regulation that the Secretary
take "appropriate action, including compulsory process, if necessary." 
This language is subject to several reasonable interpretations.  As the
district court pointed out in _Cerro_, 467 F. Supp. at 875 n.9, "[o]f
course, the term 'compulsory process' does not have to connote adversary
process."  There was also neither a statute nor a constitutional
provision requiring an adversary hearing in a warrant proceeding.  _See_
_Caceres_, 440 U.S. at 744.  It is difficult to see, then, how Penn
Steel relied on receiving an adversary hearing in 1977 on the question
of the validity of the warrant.  That Penn Steel never truly expected to
receive such an adversary hearing is strongly indicated by the fact that
Penn Steel never contested the _ex_ _parte_ nature of the warrant until
its motion for summary judgment nearly two years after issuance of the
warrant, after the Supreme Court in _Barlow's_ and the District Court
for Eastern Pennsylvania in _Cerro_ had placed a judicial gloss on
section 1903.4.  Since Penn Steel could not have reasonably relied and
most likely did not rely on receiving an adversary hearing when the
Secretary applied for the warrant, we find that there was no violation
of Penn Steel's due process rights.

_D.  Probable Cause; Scope of Warrant_

Penn Steel argues that the warrant was not based on probable cause
because it was not based on a general administrative plan for
enforcement derived from neutral sources, as required by _Barlow's_.

Chairman Buckley believes that the Commission is without authority to
consider Penn Steel's arguments.  The Chairman would hold that, because
the Commission is an administrative agency within the executive branch
of the federal government, it cannot perform functions committed to the
judicial branch and therefore cannot review a federal magistrate's
decisions about probable cause for or other legal authority underlying a
warrant.  _E.g_., _Phoenix Forging Co_., 85 OSAHRC ______, 12 BNA OSHC
1317, 1319 1985 CCH OSHD ¶ 27,256 (No. 82-398, 1985) (view of Chairman
Buckley).[[8]]  _See_ _Babcock & Wilcox v. Marshall_, 610 F.2d 1128,
1136-37 (3d Cir. 1979) (the Commission cannot "sit in direct review of
the decision of the magistrate"); _Baldwin Metals Co. v_. _Donovan_, 642
F.2d 768 (5th Cir. 1981).  _See_ _also_ _Muskrat v. United States_, 219
U.S. 346, 353 (1911) (no executive officer can be "authorized to sit as
a court of errors on the judicial acts or opinions of [an Article III]
court.").  Accordingly, Chairman Buckley believes the Commission cannot
consider any of Penn Steel's arguments requesting review of the
magistrate's judgments about the sufficiency of the probable cause basis
for the warrant, the sufficiency of OSHA's affidavit citing facts and
legal authorities for the warrant, or the existence of legal authority
for any of the particular time or scope provisions of the warrant.  Only
a federal court can address these matters.[[9]]

Commissioner Wall would entertain the question of whether there was
sufficient probable cause to obtain a warrant to inspect the Penn Steel
foundry.  The majority of the courts of appeals that have considered
this issue have held that the Commission is a proper forum for the
consideration of fourth amendment issues, and that once the statutory
Commission review process has been commenced, any objections to the
validity of a warrant must be raised before the Commission.[[10]]  In
accordance with this authority, the Commission in _Sarasota Concrete
Co_., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360 (No.
78-5264, 1981), _aff'd_, 693 F.2d 1061 (11th Cir. 1982), held that an
OSHA warrant was overbroad in scope.  The Eleventh Circuit expressly
affirmed the Commission's decision, ruling that the Commission should
review the magistrate's determination of probable cause in connection
with admitting or excluding evidence in its own proceeding:

[R]eview by OSHRC does not directly affect the substance of the
magistrate's determination.  As explained by the Third Circuit in
_Babcock & Wilcox Co_.,

The Article III objections stressed by Babcock similarly mischaracterize
the process.  The Review Commission will not sit in direct review of the
decision of the magistrate.  As already indicated, the decision to issue
the inspection warrant is complete and cannot be negated.  If the
challenge is raised by Babcock, the problem for the Review Commission
will be whether to use the evidence obtained from the inspection.  In
deciding whether to use the evidence the Review Commission must of
course, make its own judgment as to the propriety of the warrant, but
such a determination does not reverse the magistrate's action, nor does
it contravene a judicial order.  The OSHA official would not be in
contempt if he were to decide not to execute a warrant signed by the
magistrate, and an administrative tribunal does not flout the authority
of the judiciary by refusing to consider evidence that has been obtained
pursuant to a warrant issued by a judge or magistrate.

693 F.2d at 1066.

In _Bethlehem Steel Corp. v. OSHRC_, 607 F.2d 871, 876 (3d Cir. 1979),
the Third Circuit stated that "[c]onceding, arguendo that an
administrative agency is not ordinarily considered the appropriate forum
for the resolution of constitutional claims, we think there are
compelling reasons for insisting that fourth amendment claims for the
suppression of evidence in OSHA enforcement cases be tendered first to
the Commission."  Because the courts have so clearly directed that
constitutional challenges to OSHA warrants should be ruled on by the
Commission, Commissioner Wall would consider whether warrants of a
particular scope should have issued.

After examining the application for the warrant, Commissioner Wall would
find that there was sufficient probable cause to allow the inspection. 
In _Barlow's_, the Supreme Court held that probable cause for an OSHA
inspection could be based on evidence of an existing violation or on the
showing that:

"reasonable legislative or administrative standards for conducting an .
. . inspection are satisfied with respect to a particular
[establishment].'  _Camara v. Municipal Court_, 387 U.S. [523], at 538,
87 S.Ct. [1727], at 1736, 18 L.Ed.2d 930 [(1967)].  A warrant showing
that a specific business has been chosen for an OSHA search on the basis
of a general administrative plan for the enforcement of the Act derived
from neutral sources such as, for example, dispersion of employees in
various types of industries across a given area, and the desired
frequency of searches in any of the lesser division of the area, would
protect an employer's Fourth Amendment Rights."

_Barlow's_, 436 U.S. at 320-21 (emphasis added).

Here, the application for the warrant stated that the inspection was a
follow-up inspection "to determine the validity of [Penn Steel's]
claimed inability to comply with safety and health requirements and to
conduct the inspection pursuant to OSHA's National Emphasis Program for
Foundries."[[11]]   A plan similar to the Foundry NEP has been found to
be the type of general administrative plan envisioned by _Barlow's_.  In
_In re-Establishment Inspection of Gilbert & Bennett Mfg. Co._, 589 F.2d
1335 (7th Cir.), _cert_. _denied_, 444 U.S. 884 (1979), the court found
that an inspection made under a warrant obtained on the basis of "a
National-Local plan" for foundries was supported by probable cause.  The
court stated:

. . . the instant warrant was plainly supported by probable cause in the
Camara/Barlow's sense since Chromalloy was selected for inspection not
as the result of the "unbridled discretion" of a field agent, but
rather, pursuant to "a National-Local plan" designed by agency officials
for the purpose of reducing the high incidence of occupational injuries
and illnesses found in the metal-working and foundry industry.

Commissioner Wall believes the same reasoning applies to the application
for the warrant in this case.  The Foundry NEP, like the "National-Local
plan" in _Gilbert & Bennett_ is the kind of general administrative plan
envisioned by _Barlow's_ and as such supplies sufficient probable cause
for the administrative inspection in this case.

Penn Steel argues, however, that _In re Establishment Inspection of
Urick Property_, 472 F. Supp. 1193 (W.D. Pa. 1979), requires a different
result.  In _Urick_, an inspection warrant was sought under the Foundry
NEP.  The warrant was quashed because the warrant application stated
that only one foundry inspection would be conducted in a 17-county area
containing at least 11 foundries, but the application did not explain
why the Urick Foundry was chosen.  The district court therefore could
find no rational basis for the selection of the foundry in _Urick_.

Commissioner Wall disagrees with Penn Steel that _Urick_ requires a
finding that the warrant should not have been issued.  The warrant here
stated a rational basis for choosing Penn Steel.  The warrant
application recited that in 1974, Penn Steel withdrew its contest of a
citation alleging employee exposure to excessive levels of silica dust
and iron oxide fumes, and the exposure of employees to toxic materials
in their lunch room.  In 1974, a follow-up inspection resulted in two
more citations:  one alleged a "repeated" violation of the silica dust
standard at various locations; another alleged employee exposure to
excessive sound levels in two foundries and one shop; another item
alleged exposure to excessive levels of inert or nuisance dust and a
mixture of air contaminants consisting of copper fume, chromium fume,
nickel fume and iron oxide fume.  Penn Steel withdrew its contest of
these citations also after representing to the Commission's
administrative law judge that the violations had already been abated or
would be abated.   After six months, however, Penn Steel claimed in a
letter to OSHA that it could not implement controls for dust and noise. 
About three months later, an inspection team proceeding under the
Foundry NEP was refused entry into the Penn Steel foundry and a warrant
was issued.

Unlike _Urick_, Penn Steel's history of previous violations, and its
claim that it could not abate, coupled with an emphasis on foundry
inspections under the Foundry NEP, furnished the magistrate ample cause
to authorize an inspection of the entire foundry.  What appears from the
warrant is that this foundry may have been a dangerous place of
employment at the time the warrant was sought and that Penn Steel's
reluctance to implement controls was continuing.  Unlike the record in
_Urick_, the record here does not show that OSHA officials had decided
that only one inspection in a large geographical area should be conducted.

In any event, Commissioner Wall would hold under _Leon_ that OSHA sought
the warrant in good faith and executed it in good faith reliance on the
judgment of the magistrate.

_E.  Scope of Inspection_

Penn Steel also argues that the inspection exceeded the scope of the
warrant.  Chairman Buckley joins with Commissioner Wall in addressing
this argument because it calls into question OSHA's conduct, not that of
the magistrate.  Penn Steel contends that the inspection of the
woodworking machinery in the pattern shop of the foundry was not
authorized by the warrant.  Penn Steel argues that the assembly, repair,
and cleaning of patterns, which the inspection covered, were not a part
of the foundry operations that the warrant authorized OSHA to inspect.

The warrant application that OSHA submitted to the magistrate discussed
the Foundry NEP and stated that OSHA was seeking this inspection under
that program.  The warrant stated that OSHA compliance officers were
"authorized to enter the...premises...to inspect and investigate in a
reasonable manner and to a reasonable extent, in accordance with the
guidelines set forth in the [Foundry NEP]..." When OSHA conducted the
inspection under this warrant, the compliance officers inspected a
number of different departments and areas, including the pattern shop. 
The citations that were subsequently issued included items alleging
violations in this area.  Among other things, the allegations concerned
unguarded or improperly guarded woodworking machinery. This machinery
was used to make, repair, and maintain the wooden patterns for the molds
used to make the castings.

Penn Steel contends that the fabrication and care of patterns is not a
foundry operation covered by the Foundry NEP.  In support of this
contention, Penn Steel does not rely on the Foundry NEP directly but on
an OSHA program directive stating "the compliance policy, requirements,
procedures, and instructions to be followed...for implementing the
[Foundry NEP]...." OSHA Program Directive #200-56, Changes 1 and 2, 1
(1977).  The program directive specifies that one main tool in the
Foundry NEP for significantly reducing foundry injuries and illnesses
will be "compliance monitoring," which will consist of initial
inspections followed by scheduled monitoring inspections to assure
abatement of hazards.  For the purpose of this program, the program
directive defines "foundry" as "a building, establishment or works where
metal castings are produced."  The term "casting" is defined as a "metal
object cast to required shape by pouring or otherwise injecting liquid
metal into a mold, as distinct from one shaped by a mechanical
process."  In addition, there is a specific definition of "production
area" which is repeated in an attachment, part of the program directive,
as a definition of the operations to be covered in the initial
inspection under the Foundry NEP.  The language of this critical
definition is as follows:

[T]hose portions of a plant beginning with the receipt of raw materials,
continuing with foundry processes, and terminating with the cleaning,
finishing and shipping of the cast parts.  Assembly of other parts to
fabricate a final product is not included.

_Id_. at 1-2, I-V-3 (emphasis added).   Penn Steel asserts that the
assembly and use of patterns is "[a]ssembly of other parts to fabricate
a final product" and that, therefore, under this definition the
operations pertaining to building and maintaining the patterns are not
part of the foundry operations covered by the NEP.  In Penn Steel's
view, because the warrant authorized an inspection only in accordance
with the Foundry NEP, inspection of the pattern operations was improper.

The program directive does not specify exactly what is meant by the
language on which Penn Steel relies.  We have therefore examined the
program directive and the various attachments to the directive and have
concluded that the pattern shop is indeed covered by the Foundry NEP. 
In several places the directive and its attachments specifically address
problems in pattern shops.  In an attachment about industrial hygiene
and occupational health, there is a "Guideline of Air Contaminants
'Normally' Found in Foundry Operations."  One of the operation areas to
which the guideline refers is the "Pattern Shop Area."  The air
contaminants listed include wood dust, solvents, plasticizers, and wood
preservatives.   _Id_. at I-XIII-1, 13-14.  In an appendix relating to
identification of violations in foundry operations, the OSHA standards
governing hazards presented by woodworking machinery are extensively
described and, in the section of this appendix identifying health
hazards and related standards by foundry area and employees exposed,
there is a page pertaining to the pattern shop and pattern-makers. 
_Id_. at II-1, 72-77, 136.  Also, there are forms in the final appendix
explicitly requiring information about pattern shops.  _Id_. at IV-1,
12, 18, 47.  All of this shows that pattern shops were covered by the
Foundry NEP and therefore by the inspection warrant.

_III.  The Settlement Agreement_

Penn Steel argues that it should be allowed to withdraw from the
settlement of the 240 unlitigated items it entered into with the
Secretary and the United Steelworkers of America.  Penn Steel claims, in
its brief to the Commission, that, because the court in _Marshall v. Sun
Petroleum Products, Inc_., 622 F.2d 1176 (3d Cir.), _cert_. _denied_,
449 U.S. 1061 (1980), held that the Secretary can withdraw from a
settlement agreement at any time, "[f]airness and justice require that
other parties have the same right."  Penn Steel also maintains that if
the Commission alters any of Judge Chalk's dispositions of the 58
litigated items, the settlement is void.  Penn Steel also submits that
the participation of the Union in the settlement negotiations was improper.

The Secretary and the Union argue that the settlement is not before the
Commission.  First, they argue that the settlement is final by operation
of law because Penn Steel did not petition for review of the settlement
agreement and the Commission did not direct the issue of the settlement
for review.   Second, they argue that the settlement is, by its own
terms, final.

We held in _Hamilton Die Cast, Inc_., 86 OSAHRC ________, 12 BNA OSHC
1797, 1986 CCH OSHD ¶ 27,576 (No. 83-308, 1986), that when the
Commission directs any portion of a judge's report for review, the
entire judge's report is before the Commission, unless the judge's
disposition of a citation item is specifically severed and made a final
order under Federal Rule of Civil Procedure 54(b).   Although some
specific citation items were mentioned in the directions for review, the
entire case, including the items covered by the settlement agreement,
came before the Commission.  Therefore, the items covered by the
settlement agreement did not become final merely because they were not
mentioned in the direction for review.  Finally, although the Union had
moved for severance of the items covered by the settlement agreement
after Penn Steel had argued that the items were not yet final, the
Commission deferred voting on the motion until it resolved the finality
issue; thus, the items covered in the settlement have not been severed
under Fed. R. Civ. P. 54(b).

We also conclude that the settlement agreement has not become final by
its own terms.  In the first paragraph the agreement states:

With respect to the citation items covered in the preliminary decision
of Judge Joseph L. Chalk dated June 27, 1980, the parties agree that the
disposition set forth therein shall take effect.  The preliminary
decision will become effective on the date this stipulation becomes _a
final order of the Commission._

(Emphasis added.)  The Secretary and the Union argue that the term "a
final order of the Commission" means the date on which Judge Chalk's
preliminary decision became _his_ final decision.  Thus, the Secretary
and the Union claim that settlement became final when Judge Chalk
incorporated the settlement in his final decision, issued June 23, 1981.

We cannot agree with the Secretary's and the Union's interpretation of
the settlement agreement.  Under section 12(j) of the Act, a report of
an administrative law judge becomes "a final order of the Commission"
only if no Commissioner directs the case for review.  Moreover, for the
reasons set forth in _Hamilton Die Cast_, if a Commissioner directs
review of the judge's report, there is no final order of the Commission
until the Commission issues a decision in the case.  Accordingly, this
settlement is not final by its own terms.

Furthermore, the conduct of Penn Steel, the Secretary and the Union
subsequent to the settlement indicates that they did not consider the
agreement to be final.  Several sections of the agreement spell out the
future duties of the parties.  For example, paragraph 3(g) states that,

During the duration of this agreement, [Penn Steel] will furnish
Complainant, through its Harrisburg area director, semi-annual reports
describing its progress in obtaining compliance with the foregoing.  A
copy of each such report will be mailed to Mary-Win O'Brien, Esq.,
United Steelworkers of America, Five Gateway Center, Pittsburgh,
Pennsylvania 15222.

Also, paragraph 6 provides,

In view of the fact that the costs to [Penn Steel] of accomplishing
abatement as set forth herein will exceed the $78,300 amount of proposed
penalties, all penalty proposals will be withdrawn and, in lieu thereof,
there shall be assessed a single total penalty of $5,000.  One-half of
this amount shall be paid within 10 days of the date this stipulation
becomes a final order and the remainder shall be paid within 12 months
thereafter.

It appears from presentations of counsel at the oral argument that Penn
Steel never submitted the reports required under paragraph 3(g) nor did
Penn Steel pay the penalty required under paragraph 6.  Despite these
omissions by Penn Steel, neither the Secretary nor the Union moved to
enforce the terms of the settlement agreement.  At oral argument,
counsel for the Union claimed that this was simply an oversight. 
However, the failures of both the Secretary and the Union to enforce the
settlement agreement also suggests that the Secretary and the Union were
awaiting a subsequent event, namely, a final order of the Review
Commission. Moreover, the union's motion to sever the settlement
agreement, made after Penn Steel moved to withdraw, shows implicit
recognition that the settlement agreement would not become final unless
severed.  In view of this and because Penn Steel's agreement to the
settlement was certainly founded on its view that the finality of the
settlement would be postponed, we will also not consider that the
settlement agreement has yet become final.

Although we do not believe the settlement is final, the question still
remains whether Penn Steel should be allowed to withdraw from the
settlement agreement.  Penn Steel claims that it should be allowed to
withdraw from the agreement because the Secretary can withdraw from a
settlement agreement at any time before final Commission action.  _See_
_Marshall v. Sun Petroleum_, 622 F.2d at 1187.  However, the court in
_Sun Petroleum_ was careful to point out that if the Secretary withdrew
from a settlement agreement the parties were to be placed "in the
position of _status quo ante_ the issuance of the citation."   This,
according to the court, would mean that "neither the employer nor any
affected employees will be prejudiced by the unilateral action of the
Secretary."   _Sun_ _Petroleum_, 622 F.2d at 1187.

Clearly, the parties could not return to the _status_ _quo_ _ante_ if
Penn Steel was allowed to withdraw from the settlement at this late
date.  Rather the Secretary would be severely prejudiced and Penn Steel
would benefit greatly from its unilateral withdrawal from the settlement
agreement.  Penn Steel's motion for withdrawal comes after extensive
proceedings, both in terms of the time consumed and the record created. 
The hearing on the merits of the citation items not covered by the
settlement agreement took place long ago, in late 1978 and early 1979,
and the hearings lasted for more than a week.  The two hundred and forty
items that were not tried would need to be tried.  This would put the
Secretary between Scylla and Charybdis.  He could prosecute the
citations but on the basis of stale evidence.   The alternative would be
more onerous.  The Secretary could reinspect and issue new citations,
but at the cost in time and resources of reinspecting all of the work
areas and conditions covered in the original 240 items. Although Penn
Steel may have made alterations to bring conditions into compliance with
OSHA standards, the Secretary would have been deprived of much of his
power to encourage _timely_ compliance by seeking civil penalties for
violations discovered at the time of the original inspection.   Such a
choice would undermine the purpose of the civil penalty scheme that
Congress established and the Commission's efforts to encourage
settlement of disputes among the parties.  _See_ _Consolidated Edison
Co_., 81 OSAHRC 9/B2, 9 BNA OSHC 1267, 1981 CCH OSHD ¶ 25,165 (No.
80-1252, 1981); Commission Rule 100, 29 C.F.R. § 2200.100(a). Finally,
we consider it relevant that Penn Steel has attempted to withdraw from
the settlement at a very late stage of this litigation: the point was
raised in its review brief.  This came, as the settlement says, after
"lengthy negotiations and litigation that has lasted for a period of 3
years."  We decline the invitation to render for nought all this hard
work by the parties.  To encourage settlements and to avoid irreparable
harm to the Secretary's interests, the motion for withdrawal is
denied.[[12]]

Penn Steel also claims that if the Commission changes any of Judge
Chalk's dispositions of the 58 litigated items, the settlement agreement
as to the 240 unlitigated items is void.  While this argument appears
frivolous at first glance, it is not entirely so.  The settlement
agreement that the parties entered into came after Judge Chalk rendered
a preliminary decision on the 58 unsettled items. A very lengthy stay
then ensued.  The parties later prepared a settlement agreement
resolving the 240 unlitigated items; as to the litigated items, it
stated that "[w]ith respect to the citation items covered in the
preliminary decision of Judge . . . Chalk . . . the parties agree that
the disposition set forth therein shall take effect."  It could
therefore be argued that the parties effectively made the preliminary
dispositions by Judge Chalk their final consensual disposition--that the
58 items were settled by the parties rather than by Judge Chalk.

The problems with this argument are that it is contrary to another
provision of the settlement agreement and that it seems not to have been
the intention of any of the parties or the understanding of Judge
Chalk.  The same paragraph of the settlement that contains the language
above also states that "[b]oth parties reserve their rights under
[section 11 of the Act] 29 U.S.C. § 660 and the applicable Review
Commission Rules of Procedure to petition for review of that
[preliminary] decision."  Judge Chalk expressly noted this provision in
his final decision, declaring that both parties could seek review of his
dispositions of the 58 items.  And indeed both the Secretary and Penn
Steel did petition the Commission for discretionary review of some of
those litigated items.  We therefore conclude, in view of the language
of the settlement as a whole, the understanding of Judge Chalk and the
conduct, of the parties, that the phrase "the disposition set forth
therein" merely reflected the parties' intention that Judge Chalk's stay
of the proceedings pending settlement discussions would finally end and
that his preliminary decision could now be incorporated in a final decision.

Finally, Penn Steel claims that the participation of the Union "tainted"
the settlement agreement.  Penn Steel evidently believes that the
Union's participation caused it to agree to a settlement to which it
would not have otherwise agreed.   However, Penn Steel has presented no
evidence on how the Union's participation affected the settlement
process, nor can we fathom how the Union's participation would have
affected the settlement talks in the way Penn Steel claims.  Therefore,
we will not overturn the settlement agreement based on this unsupported
claim.

_IV.  The Citation Items_

We now turn to the consideration of the citation items that were
directed for review.

_Items 45(g) and (h):  29 C.F.R. § 1910.212(a)(1), Swing Grinders_

Items 45(g) and (h) allege that Penn Steel violated section
1910.212(a)(1), a generally applicable machine guarding standard, by
failing to guard the wheels of two swing grinders.  The two grinders had
guards over the top halves of the grinding wheels.  The compliance
officer was concerned that chips of castings or pieces of the wheels
could fly back at the operators because the guards did not extend
downward over the backs of the wheels.  Judge Chalk vacated the item on
the basis that the Secretary's evidence of employee exposure was
inadequate.   The Secretary argues on review that the judge erred.  We
do not reach this or any other issue because we conclude that section
1910.212(a)(1) is preempted with respect to these grinders.

Section 1910.212(a)(1) provides:

§ 1910.212 _General requirements for all machines._

(a) _Machine guarding_--(1) _Types of guarding_.  One or more methods of
machine guarding shall be provided to protect the operator and other
employees in the machine area from hazards such as those created by
point of operation, ingoing nip-points, rotating parts, flying chips and
sparks.   Examples of guarding methods are--barrier guards, two-hand
tripping devices, electronic safety devices, etc.

This standard is generally applicable to all machines.  There are,
however, other standards that are specifically applicable to certain
machines.  See 29 C.F.R. §§ 1910.213-1910.219.  Among these latter
particular standards, there is a standard for swing frame grinders that
requires the grinders to have guards enclosing the top half of the
wheel.  _See_ 29 C.F.R. §§ 1910.215(b)(2) and (6). Section
1910.215(b)(6) states:

1910.215 _Abrasive wheel machinery_.
* * *
(b) _Guarding of abrasive wheel machinery_.
* * *

(6) _Swing frame grinders_.  The maximum angular exposure of the
grinding wheel periphery and sides for safety guards used on machines
known as swing frame grinding machines shall not exceed 180º, and the
top half of the wheel shall be enclosed at all times.  (See Figures 0-14
and 0-15.)

The two figures to which the section refers show a rounded guard and a
squared-off guard, each covering the top half of the grinding wheel.  
Up to 180 degrees of the bottom halves of the grinding wheels are shown
open.

Where "a particular standard is specifically applicable to a condition,
practice, means, method, operation, or process, it shall prevail over
any different general standard which might otherwise be applicable . . .
. " 29 C.F.R. § 1910.5(c)(1).  Because section 1910.215(b)(6) fully
addresses the matter of guarding a wheel of a swing frame grinder,
specifying where the guard must be installed and how much of the wheel
may remain open, it applies to the condition with which the Secretary is
concerned in this case. Accordingly, section 1910.215(b)(6) prevails
over the more general standard, section 1910.212(a)(1).  _See_, _e.g._,
_Vicon Corp_., 81 OSAHRC 98/C4, 10 BNA OSHC 1153, 1156, 1981 CCH OSHD ¶
25,749, pp. 32,158-59 (No. 78-2923, 1981), _aff'd_, 691 F.2d 503 (8th
Cir. 1982); _General Supply Co_., 77 OSAHRC 16/A2, 4 BNA OSHC 2039,
1040-41, 1976-77 CCH OSHD ¶ 21,503, p. 25,806 (No. 11752, 1977).[[13]]

We have considered whether the citation should be amended to allege a
violation of section 1910.215(b)(6).  Under Rule 15(b) of the Federal
Rules of Civil Procedure, pleadings may be amended to conform to the
evidence when an issue not raised by the pleadings has been tried by the
express or implied consent of the parties.  Here, the record is very
limited.  During the proceedings, the parties referred neither to the
particular standard nor to requirements in the nature of those stated in
that standard.  The parties did not focus on whether the guards which
Penn Steel had installed on the two grinders covered the top half of the
wheels and whether the open portions of the wheels constituted more than
one-half of the total circumference.  Instead, the parties tried only
the general issue framed by the general standard--whether the operator
was exposed to a hazard of rotating parts or flying chips during the
operations.  They did not understand that a violation of section
1910.215(b)(6) was at issue.  Under these circumstances, it is
inappropriate to amend the citation under Rule 15(b). _See_ _Nu-Way
Mobile Home Manufacturing, Inc_., 86 OSAHRC __, 12 BNA OSHC 1670, 1671,
1986 CCH OSHD ¶ 27,489, p. 35,624 (No. 80-7082, 1986); McWilliams Forge
Co., 84 OSAHRC ____, 11 BNA OSHC 2128, 2129-30, 1984 CCH OSHD ¶ 26,979,
p. 34,669 (No. 80-5868, 1984).  Therefore, citation items 45(g) and (h)
are vacated.

_Item 46(a):  Section 1910.212(a)(3)(ii), Cut-off Wheel _

Citation item 46(a) alleges that Penn Steel violated 29 C.F.R.

§ 1910.212(a)(3)(ii) by failing to guard the blade of a 16-inch table
cut-off wheel or saw which was used to trim excess material from
castings.[[14]]  There is no doubt that the standard was violated.[[15]]
At the hearing, however, the question arose whether compliance with the
standard was infeasible.

The compliance officer stated that, while "some type of guarding for
this kind of cutoff wheel" is available, using this guarding "can
present some problems with the different configurations in the
castings."  The compliance officer, who observed an employee feeding a
casting into the blade, also testified that the "best way" to protect
the employee would be to construct and install a clamp to hold the
castings.  Relying on this testimony, the judge vacated the citation
item and stated that the compliance officer's testimony was "a
concession that the type of guarding contemplated by the standard was
impossible."  The judge reasoned that the proposed clamps did not
satisfy the standard because they did not physically prevent the
operator from having a part of his body in the blade of the saw, and
that the type of guarding that did prevent the operator from touching
the blade could not be used.

The Secretary argues that Penn Steel failed to establish that guarding
the cited machine was "impossible."  The Secretary contends that showing
that guarding the machine would be difficult is not enough to show
impossibility.  Also, the evidence revealed that clamps could be used as
an alternative means of protection.

In _Dun-Par Engineered Form Co_., 86 OSAHRC ___, 12 BNA OSHC __, 1986
CCH OSHD ¶ (No. 79-2553, 1986), the Commission substantially altered the
"impossibility" defense.  Under _Dun-Par_, the burden of persuasion is
upon the employer to establish that compliance with the cited standard
was "infeasible" as opposed to "impossible."  Also, the burden of
persuasion was placed with the Secretary to establish that a feasible
means of protection not required by the standard was available but that
the employer failed to use it.

We agree with the Secretary that Penn Steel did not carry its burden of
proving that compliance was infeasible.  The testimony of the compliance
officer shows, at best, that during _some_ operations, the use of a
guard would be infeasible.  However, the record does not show that
compliance would be infeasible during all cutting operations.  In any
event, the record satisfies the Secretary's burden of showing that
feasible alternative means of protection exist.  The compliance officer
testified that clamps could be used to hold down the workpiece so that
the employee's hands could be kept away from the saw.  Because we find
that clamps could feasibly be used when guarding is infeasible, we
reject Penn Steel's defense and affirm item 46(a).

_Item 53(a):  Section 1910.215(a)(2), Grinding Wheel Spindle_

A different issue is presented by the remaining items which, like item
53(a), involve unguarded machines.  The issue is whether the Secretary
presented sufficient evidence to establish that Penn Steel employees had
access to the violative conditions.  To establish employee access, the
Secretary must demonstrate a reasonable predictability that, in the
course of their duties, employees will be, are,  or have been in the
zone of danger.  _Clement Food Co_., 84 OSAHRC 128/B10, 11 BNA OSHC
2120, 2123, 1984 CCH OSHD ¶ 26,972, p. 34,633 (No. 80-607, 1984),
_citing_ _Gilles & Cotting, Inc_., 76 OSAHRC 30/D9, 3 BNA OSHC 2002,
2003, 1975-76 CCH OSHD ¶ 20,448, p. 24,425 (No. 504, 1976).  Where the
danger is created by defective equipment, such as unguarded machines,
the Secretary may satisfy this burden of proof by demonstrating that the
defective equipment was "available for use"--specifically, that the
defective equipment was located where employees could gain access to it
and use it in the course of their normal duties.  _See_,_e.g_., _Bechtel
Power Co_., 79 OSAHRC 34/A2, 7 BNA OSHC 1361, 1366, 1979 CCH OSHD ¶
23,575, p. 28,577 (No. 13832, 1979); _Marinas of the Future, Inc_., 77
OSAHRC 201/B1, 6 BNA OSHC 1120, 1122-23, 1977-78 CCH OSHD ¶ 22,406, p.
27,011 (No. 13507, 1977); _Mayfair Construction Co_., 77 OSAHRC 178/A14,
5 BNA OSHC 1877, 1881, 1977-78 CCH OSHC ¶ 22,214, p. 26,732 (No. 2171,
1977); _Gilles & Cotting, Inc_., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 2004,
1975-76 CCH OSHD ¶ 20,448 p. 24,425.  The nature of the proof will vary
depending on the particular type of defective equipment involved and
circumstances at the particular worksite, but, in general, it will not
be enough for the Secretary to establish simply that the defective piece
of equipment was at the worksite.   There must be sufficient evidence
about the precise location of the defective equipment and specific
duties of employees likely to involve use of such equipment at the
particular location to show that some use of the equipment in its
defective condition at or around the time of the alleged violation was
indeed reasonably predictable.

With respect to item 53(a), the compliance officer observed a grinder
that did not have a guard for the wheel spindle or nut.   The Secretary
alleged that Penn Steel violated 29 C.F.R. § 1910.215(a)(2).[[16]]   The
judge affirmed the citation.  The compliance officer did not describe
where this grinder was located nor did he see the grinder in use. 
However, Mr. George Hartman, Penn Steel's safety director who
accompanied the compliance officer during the inspection, told the
compliance officer that the grinder "was used for odd shaped castings." 
On the basis of the compliance officer's uncontroverted testimony
concerning Mr. Hartman's admission, we affirm the judge's decision that
the Secretary established the accessibility of this grinder.  Item 53(a)
is therefore affirmed.

_Items 63a(a) & (b):  Section 1910.243(c)(3), Portable Grinders._

With respect to items 63a(a) and (b), the compliance officer observed a
series of vertical portable grinders without guards in the back bay of
the cleaning department.  The Secretary alleged that Penn Steel violated
29 C.F.R. § 1910.243(c)(3)[[17]] because none of the grinders were
guarded.  The compliance officer did not see either of the two grinders
in use, but, with respect to the grinder involved in sub-item 63a(a),
the compliance officer stated that he saw "a number of grinders being
used in the area" of it and that the grinding wheel of the particular
grinder "was somewhat worn down."  With respect to the grinder involved
in sub-item 63a(b), the compliance officer stated that this grinder was
"laying on a work bench in the area where they're chipping and
grinding." The judge affirmed both of these items.  We affirm his
decision in view of this evidence that the grinders were located in an
area where similar grinders were used for grinding and chipping work,
and therefore, that they were "available for use" by Penn Steel
employees.  Items 63a(a) and 63a(b) are affirmed.

_Item 50: Section 1910.213(j)(4), Jointer._

Citation item 50 alleged that a hand-fed jointer in the woodworking area
of the shop lacked a suitable guard as required by 29 C.F.R. § 1910.213
(j)(4).[[18]]  The compliance officer did not see anyone using the
jointer.   The compliance officer testified that he noted on his work
sheet that the jointer was used daily.  However, the compliance officer
testified that he could not recall who told him that.  In addition,
although the compliance officer had noted the name of an employee with
whom he spoke during the inspection, the compliance officer could not
describe this employee's position or work.  Therefore, there was no
evidence that the employee would know about the usual operations
involving the jointer, or that the employee even worked in the pattern
shop.  The record generally indicates that different machines were used
for different operations or materials and the compliance officer did not
provide any reliable information about the duties of employees likely to
involve the use of the unguarded jointer in the pattern shop around the
time of the alleged violation.   Accordingly, Chairman Buckley concludes
that the Secretary has not established a reasonable predictability that
Penn Steel employees had access to the cited jointer.   He therefore
joins with Commissioner Rader--whose views are stated in his separate
opinion--in vacating item 50.

Commissioner Wall would, however, find the evidence was sufficient to
affirm the judge's finding that Penn Steel employees had access to the
unguarded jointer.  The judge found that "the jointer was accessible in
its violative condition for use by an employee." Commissioner Wall
observes that the compliance officer's notes included the name and
address of a Penn Steel employee.    Although the compliance officer
could not testify for certain, it is more likely than not that the
employee whose name and address was in the compliance officer's notes
was the employee who told him that the jointer was used daily.  In
addition, the compliance officer testified that the inspection followed
the normal route of the foundry process.  Therefore, the jointer was in
a place where work was normally performed and was easily accessible for
use by Penn Steel employees.

_Item 53(e):  Section 1910.215(a)(2), Grinder_

Citation item 53(e) involves the same type of grinder as item 53(a). 
Because the grinder was not guarded, the Secretary cited Penn Steel
under 29 C.F.R. § 1910.215(a)(2).[[19]]  Chairman Buckley joins with
Commissioner Rader in vacating the item.  Chairman Buckley would note
that unlike citation item 53(a), there was no evidence about where the
grinder cited in item 53(e) was located or that the grinder was used by
Penn Steel employees.  Therefore, Chairman Buckley finds that the
Secretary did not establish that the Penn Steel employees had access to
the cited machine.

Commissioner Wall would affirm the citation item.  The administrative
law judge found that the grinder was located in a work area and
accessible to Penn Steel employees.   Commissioner Wall would defer to
the administrative law judge on this finding of fact.

The judge assessed an aggregated penalty of $5,000, the amount that the
parties specified in their settlement agreement.  We affirm this assessment.

_Order_
Accordingly, we affirm Judge Chalk's order entering judgment in
accordance with the settlement agreement on the 240 unlitigated items.
We also affirm his decision as to some of the litigated citation items
but reverse as to others. Items 45(g), 45(h), 50 and 53(e) are vacated.
Items 46(a). 53(a), 63a(a) and 63a(b) are affirmed. We also affirm the
judge's assessment of a $5000 penalty.

BY THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  AUG 27 1986

------------------------------------------------------------------------

RADER, Commission, dissenting:

I agree with Commissioner Wall that the Commission is required to
consider Penn Steel's constitutional objections to the probable cause
showing by the Secretary for the inspection warrant.  I dissent from the
majority's decision because in my view the warrant was not supported by
adequate probable cause and was overbroad.  Consistent with my opinion
in _Synkote Paint Co._, OSHRC Docket No. 83-0002 (August 27, 1986), I
would suppress the evidence obtained under the warrant.

As Commissioner Wall correctly points out, numerous courts of appeals
have directed the Commission to rule on challenges to the probable cause
showing for an inspection warrant once statutory review proceedings have
commenced.  The courts have not stated that any challenges to the
validity of a warrant are to be raised before the Commission merely to
be preserved for appellate review pending the development of a factual
record by the Commission.  Rather, the case law now clearly holds that
such challenges are not only to be raised but are also to be heard and
resolved before the Commission.  _Smith Steel Casting Co. v. Donovan_,
725 F.2d 1032, 1036 (5th Cir. 1984); _Donovan v. Sarasota Concrete Co_.,
693 F.2d 1061, 1066 (11th Cir. 1982); _Babcock & Wilcox Co. v._
_Marshall_, 610 F.2d 1128 (3d Cir. 1979).

Consideration of the sufficiency of the probable cause for the warrant
in this case must begin with _Marshall v. Barlow's Inc_., 436 U.S. 307
(1978) [[1]]  In _Barlow's_ the Supreme Court held that OSHA may obtain
a warrant by showing (1) specific evidence of an existing violation, or
(2) that "reasonable legislative or administrative standards for
conducting an inspection are satisfied with respect to a particular
establishment."  436 U.S. at 320.

The affidavit for the warrant at issue here asserts two grounds for an
inspection of Penn Steel's facility.  The first asserted ground is the
need to conduct a follow-up inspection to verify the validity of Penn
Steel's claim that it could not feasibly abate prior violations for
excessive noise, silica dust, and nuisance dust.  This portion of the
affidavit is sufficient under _Barlow's_ to establish probable cause to
conduct an inspection based on specific evidence of an existing
violation.  _Pelton Casteel, Inc. v. Marshall_, 588 F.2d 1182 (7th Cir.
1978).  Had the warrant and ensuing inspection been limited to matters
pertaining to noise and dust, they would pass constitutional muster. 
_See_ my opinion in _Synkote Paint_, _supra_ (warrant must be properly
tailored to the probable cause showing for its issuance).  However, the
warrant authorized, and the Secretary conducted, a general or
wall-to-wall inspection of the entirety of Penn Steel's premises.  In
this respect the warrant was clearly overbroad in scope because there
was no probable cause shown for a general inspection of Penn Steel's
premises.  _Barlow's_ and its progeny require that an application for a
warrant based on a general administrative plan for the enforcement of
the Act must demonstrate both that a reasonable legislative or
administrative inspection program exists and that rational and neutral
criteria were used to select the particular employer for an inspection
under this plan.  _In_ _re Establishment Inspection of Northwest
Airlines, Inc_., 587 F.2d 12, 13-14 (7th Cir. 1978); _In re
Establishment Inspection of_ _Pfister & Vogel Tanning Co_., 493 F. Supp.
351, 354 (E.D. Wis. 1980).  The affidavit for the warrant here simply
stated:

The purpose [in addition to the follow-up inspection for conditions
previously cited] was . . . to conduct the inspection pursuant to OSHA's
National Emphasis Program for Foundries.

. . The National Emphasis Program (hereinafter "NEP") was established in
1976 to reduce hazards in industries reporting a higher than average
rate of injuries and illnesses.  The first target industries selected by
NEP were iron and steel foundries and aluminum, bronze, brass and copper
casting and metal stamping plants.  Foundries reported a 1973 illness
and injury rate of 26.6 per 100 workers as compared to the national
average of 8.8.

Assuming without deciding that this limited description of the NEP
program is sufficient to establish a reasonable administrative plan
under _Barlow's_, _supra_, the affidavit plainly fails to set forth any
basis whatever for the selection of Penn Steel's worksite for an
inspection pursuant to the NEP.[[2]]  The affidavit states simply that
Penn Steel was selected for an inspection pursuant to the plan; it does
not describe the procedure followed in the selection of Penn Steel for a
general inspection under the NEP.  Was it by lot? Was it at random?  
Was it by design?  If by design, what were the facts underlying the
purposeful selection?  The purpose of the warrant requirement is to
"guard against arbitrariness."  _Brock v. Gretna Machine & Ironworks_,
769 F.2d 1110, 1112 (5th Cir. 1985).  Yet absent such information as to
Penn Steel's selection under the NEP we cannot determine whether the
selection of Penn Steel as opposed to any other foundry for a general
inspection under the NEP was "a reasonable exercise of discretion for
the area administrator."  _In re Establishment Inspection of Urick
Property_, 472 F. Supp. 1193, 1195 (W.D. Pa. 1979).[[3]]  _See_ _Gretna_
_Machine & Ironworks_, _supra_, 769 F.2d at 1112-13, and _Marshall v.
Weyerhaeuser Co_., 456 F. Supp. 474 (D.N.J. 1978).  _Cf_. _Marshall v.
Shellcast Corp_., 5 BNA OSHC 1689, 1691 (N.D. Ala. 1977), _rev'd on
other grounds_, 592 F.2d 1369 (5th Cir. 1979) (where individualized
information is available, nationwide statistics do not establish
sufficient probable cause to justify the selection of particular
foundries for inspection under the foundry NEP).  Since probable cause
for a general inspection under the NEP was not established, the warrant
should have been limited in scope to the particular violative conditions
for which the Secretary was seeking a follow-up inspection.  _Sarasota
Concrete_, _supra_, 693 F.2d at 1068-70 (11th Cir. 1982); _Marshall v.
North American Car_ _Corp_., 626 F.2d 320, 324 (3d Cir. 1980); _Marshall
v. Central Mine Equipment Co_., 608 F.2d 719, 720 n.1 (8th Cir. 1979). 
_See_ _Synkote Paint_, _supra_.

However, that did not happen here.  Instead the Secretary inspected and
issued citations consisting of almost 300 separate violations for
matters as diverse as failing to instruct employees in how to safely
lift heavy objects, failure to properly enclose electrical equipment,
and, as the lead opinion points out, failure to properly guard
woodworking machinery in the pattern shop.  Quite clearly the Secretary
conducted far more than merely a follow-up inspection for noise and dust
violations, and his inspection went well beyond any open and obvious
hazards that arguably might have been detected during a properly limited
follow-up inspection.  Since there was no probable cause for an
inspection of such scope, the warrant is invalid for being overbroad.  
Consistent with _Sarasota_ _Concrete_, _supra_, and my opinion in
_Synkote Paint_, _supra_, I would suppress the evidence obtained under
the invalid warrant.

Commissioner Wall holds that even if there was not probable cause for a
general inspection, the "good faith" exception of _United_ _States v.
Leon_, 468 U.S. 897 (1984), applies here to excuse this broad invasion
of Penn Steel's privacy.  However, I believe that _Leon_, a criminal
case, is founded on different considerations than exist in an OSHA
warrant case and should not be used to justify the incredibly detailed
inspection that took place in this case.  The use of evidence in
criminal cases is vastly different than in civil cases before the
Commission under the Act.  The distinctions are well-stated by Chairman
Buckley in _Brooks Woolen Co_., 85 OSAHRC ___________, 12 BNA OSHC 1233,
1236-37, 1985 CCH OSHD ¶ 27,233, pp. 35,151-52 (Nos. 79-45 and 79-128,
1985), _aff'd_, 782 F.2d 1066 (1st Cir. 1986).   As Chairman Buckley
explained, the suppression of evidence normally will defeat the punitive
purposes of the criminal law because evidence of a crime, once
suppressed, usually cannot be recovered.  Different considerations apply
in cases under the Act, however, because the purposes of the Act are not
punitive but rather remedial.  Thus, the Act is intended to achieve safe
and healthful working conditions through the elimination of recognized
hazards and compliance with standards promulgated under the Act.   As
Chairman Buckley has accurately stated,

If evidence from an unlawful OSHA inspection is suppressed, the
Secretary can seek to obtain similar evidence from a subsequent, valid
inspection or by other means.  See section 8(b) of the Act, 29 U.S.C. §
657(b) (Secretary has authority to issue subpoenas in investigating
possible violations of the Act).  If conditions in the employer's
workplace have changed to the extent that evidence of a violation no
longer exists, then any violation has ceased to exist, and the Secretary
has achieved the result he sought by initiating the enforcement action. 
If conditions have not changed, the Secretary can reacquire the evidence
by lawful means.   He will have lost some time and resources, but in
many cases the lost time and resources will be less than he would expend
in litigation arising from questionable inspection practices.  In any
event, the cost of suppression is much less than it is in criminal cases.

This distinction between criminal and civil proceedings was emphasized
by the Eleventh Circuit in affirming the Commission's refusal to apply a
good faith exception in _Sarasota Concrete_, _supra_.  _See_ 693 F.2d at
1072.  In _Sarasota Concrete_, 81 OSAHRC 48/A2, 9 BNA OSHC 1608,
1613-1614, 1981 CCH OSHD ¶ 25,360, pp. 31,532-33 (No. 78-5265, 1981),
the Commission applied the exclusionary rule to our proceedings because
it creates a clear incentive to the Secretary to conduct OSHA
inspections in accordance with the fourth amendment.  I see no reason to
disregard our prior decision in _Sarasota Concrete_, as Chairman Buckley
does by refusing to decide these constitutional warrant issues, and as
Commissioner Wall does by applying a good faith exception in the present
cast.  On the other hand, the effect of the majority's ruling will be to
unnecessarily encourage sloppy warrant applications and overbroad OSHA
inspections.

Even if the good faith exception did apply to our proceedings, I cannot
find the Secretary to have acted in good faith here.   Although the
warrant here predates the Supreme Court's decision in _Barlow's_, the
Court had held as far back as _Camara v._ _Municipal Court_, 387 U.S.
523, 538 (1967), that in order to establish probable cause for an
administrative warrant there must be "reasonable legislative or
administrative standards for conducting an area inspection . . . with
respect to a particular dwelling."  _See_ _In re Establishment
Inspection of Northwest Airlines, Inc_., 437 F. Supp. 533 (E.D. Wis.
1977), _aff'd_, 587 F.2d 12 (7th Cir. 1978). By the time the Secretary
applied for the warrant in this case a number of courts had specifically
applied _Camara_ to OSHA inspection warrants.  _See_ the three-judge
district court opinions in _Barlow's Inc. v. Usery_, 424 F. Supp. 437
(D. Idaho 1976); _Dunlop v. Hertzler Enterprises, Inc._, 418 F. Supp.
627 (D.N.M. 1976); _Brennan v. Gibson's Products, Inc. of Plano_, 407
F.Supp. 154 (E.D. Tex. 1976); and the district court opinion in _Usery
v. Centrif-Air Machine Co_., 424 F. Supp. 959 (N.D. Ga. 1977).  _Cf_.
_In re the Inspection of Rupp Forge Co_., 4 BNA OSHC 1487, 1976-77 CCH
OSHD ¶ 20,914 (N.D. Ohio 1976) (probable cause standards appropriate to
administrative searches apply to inspections under the Act).  Thus, the
Secretary should have been aware of the need to demonstrate why he
selected Penn Steel for inspection under the NEP.  Similarly, as I
observed in _Synkote Paint_, _supra_, the principle that a warrant must
be properly tailored to the probable cause basis for its issuance is a
fundamental rule of fourth amendment law of which we may reasonably
expect the Secretary's agents to be aware.   Therefore, in my view the
Secretary could not have reasonably believed that the warrant
authorizing a general inspection of Penn Steel's worksite was valid.

The underlying basis of the majority's decision is its reluctance to
allow Penn Steel to escape the settlement agreement.  I share this
reluctance.[[4]]  However, I believe that when the question of the
legality of the inspection warrant and the inspection is raised, as it
is here, we are required by the precedent I have noted to decide these
constitutional issues.  If the warrant or inspection is unconstitutional
or otherwise invalid, our obligation to protect the rights guaranteed by
the fourth amendment requires that we suppress the evidence obtained
during the inspection regardless of our dislike for setting aside the
settlement agreement.   _See_ _Sarasota Concrete_, _supra_, 9 BNA OSHC
at 1615, 1981 CCH OSHD at p. 31,533.

_Barlow's_, _supra_, reaffirms that the determination of the
reasonableness of a particular OSHA inspection is to be made by the
magistrate, not the Secretary.  The application for a warrant must
therefore set forth sufficient information to enable the magistrate to
make an independent determination of probable cause.  In this case the
affidavit should have described how Penn Steel was selected for
inspection under the NEP.  _Gretna Machine & Ironworks_, _supra_, 769
F.2d at 1114.  The Secretary could easily have described his selection
process in the affidavit, if in fact the selection of Penn Steel was
done in a neutral manner under the NEP. He has certainly done so in
other cases and the burden has not been onerous.   _See_, _e.g._,
_Stoddard Lumber Co., Inc. v. Marshall,_ 627 F.2d 984, 985 n.2, 988 (9th
Cir. 1980) ("detailed explanation" of inspection plan describing how
individual employers are selected for inspection); _Reynolds Metals Co.
v. Marshall_, 442 F. Supp. 195 (W.D. Va. 1977).  His failure to do so
here contravenes the clear teaching of _Barlow's_ and its progeny. 
Accordingly, I would vacate all the citations issued to Penn Steel since
those citations arise from an illegal inspection.

------------------------------------------------------------------------




SECRETARY OF LABOR,

Complainant,

v.

PENNSYLVANIA STEEL FOUNDRY &
MACHINE COMPANY,

Respondent.

DOCKET NO. 78-0638

APPEARANCES
Michael D. Shapiro, Esq.
For Complainant

Robert D. Moran, Esq.
For Respondent

Mary Win-O'Brien, Esq.
For Employees

_FINAL DECISION AND ORDER_

Chalk, Judge:

I

This protracted case involves some 300 separate charges (items and
subitems), involving four separate hearing sessions dating back to
January 1979.  These hearing sessions were interspaced with recesses
requested by the parties to enable them to conduct settlement sessions
and, on one occasion, to permit me to resolve a renewed motion by
Respondent, after receipt of briefs of all parties, to suppress all the
evidence in the case after the Commission, on July 17, 1979, reversed
its prior decisions that it lacked jurisdiction to adjudicate the
validity of search warrants issued by United States District Courts (see
Secretary v. Chromalloy American Corp., 79 OSAHRC 55/D11, Docket No.
77-2788).

During one of the hearing sessions convened on December 5, 1979, the
parties requested permission to conduct a full hearing limited to 58 of
the 300 charges, those they believed they could not settle, expressing
their expectation that it would enable them to settle the remainder of
the case.   Thereafter, on June 27, 1980, I issued a preliminary or
interlocutory decision which served to advise the parties of my future
disposition of each of the 58 charges when this final decision and order
was issued.  That preliminary decision, attached hereto, is incorporated
herein, made a part hereof, and each disposition specified therein will
be fully implemented herein.

Although the parties, in the partial settlement agreement they have now
filed, have reserved unto themselves the right to seek relief at the
Commission and Circuit Court levels from the disposition of those 58
charges specified in the preliminary decision, as implemented herein,
they already have that right as a matter of law under the provisions of
the Act (29 U.S.C. 659(c), 660(a) and 661(j)).

When the final hearing session in this case convened on January 22,
1981, a recess was immediately declared at the request of the parties to
enable them to resume settlement negotiations.  The hearing was never
reconvened as the parties advised me informally on January 23, 1981 that
they had settled all remaining charges alleged in the citations, other
than those resolved in the preliminary decision.

II

_A_

_Items Involved in the Preliminary Decision_

_Citation Number 1 (Serious)_

Items (or subitems) 20 a through g, 25a and b, 27a, 39, 42, 43a, 45a
through j, 46a through i and k, 48a, 51, 54b, 56a, 57c, 58b, c, f and h,
and 74a through c - Vacated.

Items (or subitems) 47, 50 and 53a through e - Affirmed.

Items (or subitems) 48b, 49, 52 and 63a(a), a(b), and a(c) - Modified to
allege other than serious violations, affirmed.

_B_

The partial settlement agreement filed by the parties on June 18, 1981
is approved, the motions contained therein are granted, and Respondent's
notice of contest to the items (or subitems) affirmed in accordance with
said agreement is dismissed.

_Citation Number 1_ (Serious)
Items 1, 4 through 8, 11, 12, 15, 18, 19, 20(h), 20(i), 20(k) through
20(n), 20(p), (23, 25(c) through 25(f), 26(a), 26(b), 28, 31, 43(b),
46(j), 54(a), 56(b) through 56(f), 57(a), 57(d) through 57(p), 58(a),
58(d), 58(e), 58(g), 59 through 61, 64 through 68, 69(c) through 69(l),
70(a), 70(b), 72, 73 and 75 - Affirmed.

Items 2, 3, 9, 10, 13, 14, 16, 20(j), 20(o), 21, 22, 24, 29, 30, 32
through 38, 40, 41, 55, 62, 63(b), 69(b) and 71 - Vacated.

_Citation Number 2_ (Willful)

Item 3 - Vacated.
Item 1, 2, 4 and 5 - Modified to allege
                              serious violations, affirmed.

_Citation Number 3_ (Nonserious)

Items 8 and 16 - Vacated
Items 1 through 7, 9
through 15, and 17
through 25 - Affirmed.

An aggregate penalty of $5,000 is assessed for the items (or subitems)
of Citation number 1 for serious violations affirmed as serious
violations, as provided for in both the preliminary decision and the
partial settlement agreement and for the affirmed items of Citation
number 2, as modified, and for items 1, 3, 4, 6, 13 and 20 of Citation
number 3 for other than serious violations, the latter two citations as
provided for in the partial settlement agreement.

Respondent will comply with the abatement provisions of paragraphs 3 and
4 of the partial settlement agreement and the respective parties will
adhere to the agreements reached in paragraphs 5 through 10 thereof.

So ORDERED.

JOSEPH L. CHALK
Judge, OSHRC

Dated:  July 13, 1981
Hyattsville, Maryland.


FOOTNOTES:

[[1]] The issues the parties were instructed to address in their
supplemental briefs were:

If the Secretary's regulation at 29 C.F.R. § 1903.4 required notice and
hearing on the warrant application, did the Secretary's conduct in
obtaining the warrant _ex_ _parte_ violate the employer's right to due
process of law under the Fifth Amendment?  What is the effect of the
Supreme Court's holding in _Accardi v. Shaughnessy_, 347 U.S. 260
(1954), on this issue?  What is the effect of the Supreme Court's
holding in _United States v. Caceres_, 440 U.S. 741 (1979), on this issue?

If the Secretary's conduct in obtaining the warrant _ex_ _parte_ did
violate 29 C.F.R. § 1903.4, what is the proper remedy under the Fifth
Amendment?

Does the "good faith" exception of _United States v. Leon_, 104 S.Ct.
3405 (1984), apply to violations of due process rights under the Fifth
Amendment?

Whether the decision of the United States Court of Appeals for the Third
Circuit in _Cerro Metal Products v. Marshall_, 620 F.2d 964 (3rd Cir.
1980), should be applied retroactively to the warrant in this case,
which was issued on August 25, 1977?

If the Commission concludes that the Secretary's conduct in obtaining
the warrant _ex_ _parte_ violated the employer's right to due process of
law under the Fifth Amendment, what effect, if any, does that have on
the validity of the settlement agreement approved by the Judge on June
23, 1981?

Whether the terms of the June 23, 1981, settlement agreement require
that the agreement be voided if the Commission alters Judge Chalk's
decision.

[[2]] Before the oral argument, the parties were instructed to
concentrate their arguments on the following two questions:

(1) If the Secretary's regulation at 29 C.F.R. § 1903.4 required notice
and hearing on the warrant application, did the Secretary's conduct in
obtaining the warrant _ex_ _parte_ violate the employer's right to due
process of law under the Fifth Amendment?  If so, does the due process
violation require vacation of the citations or suppression of the
evidence resulting from the inspection?

(2) If the Commission concludes that the Secretary's conduct in
obtaining the warrant _ex_ _parte_ violated the employer's right to due
process of law under the Fifth Amendment, what effect, if any, does that
have on the validity of the settlement agreement approved by the Judge
on June 23, 1981?

[[3]] The questions of the validity of the inspection and whether Penn
Steel should be allowed to withdraw from the settlement agreement were
not stated in the directions for review.  On review, the Secretary
argues that the Commission therefore does not have any of these issues
before it.   However, that issues in a case were not included in a
direction for review does not preclude the Commission from considering
them.  Once a case is directed for review, the Commission may consider
any issue raised by the case. _Hamilton Die Cast, Inc_., 86 OSAHRC ____,
12 BNA OSHC 1797, 1986 CCH OSHD ¶ 27,576 (No. 83-308, 1986).
Concomitantly, the Commission also has the discretion to decline review
of issues tendered by the parties.  We decline to review certain
additional issues that were mentioned by Penn Steel in its initial
review brief but are not discussed in this opinion.

[[4]] As in _Geupel_, we find it unnecessary to consider whether
_Chevron v. Huson_, 404 U.S. 97, 106 (1971), which generally governs
retroactivity in civil cases, should be applied to Fourth Amendment
questions.  We find that the "clearly foreshadowed" test of _Chevron_
would yield here the same result as the "clear break" test of _Johnson_.

[[5]] _Davis Metal Stamping, Inc_., 82 OSAHRC 37/A2, 10 BNA OSHC 1741,
1744, 1982 CCH OSHD ¶ 26,134, p. 32,879 (No. 78-5775, 1982).

[[6]] That this is so is further indicated by the fact that even _after_
the _Barlow's_ decision, a majority of the tribunals that considered the
question did not find that the language of _Barlow's_ and the events
that precipitated it suggested that OSHA lacked the authority to seek
warrants _ex_ _parte_.  The majority of the circuit courts have held
that the Secretary had authority to obtain _ex_ _parte_ warrants under
section 1903.4 as originally promulgated.  _Donovan v. Red Star Marine
Services, Inc_., 739 F.2d 774, 782-784 (2d Cir. 1984), _cert_. _denied_,
105 S.Ct. 1355 (1985); _Rockford Drop Forge Co. v. Donovan_, 672 F.2d
626, 629-631 (7th Cir. 1982); _Marshall v. Seaward International, Inc_.,
644 F.2d 880 (4th Cir. 1981) (table), _aff'g_ 510 F. Supp. 314 (W.D. Va.
1980); _Stoddard_ _Lumber Co. v. Marshall_, 627 F.2d 984, 989 (9th Cir.
1980); _Marshall v. W & W Steel Co_., 604 F.2d 1322, 1324 (10th Cir.
1979). Only the Fifth Circuit in _Donovan v. Huffines Steel Co_., 645
F.2d 288 (5th Cir. 1981), has agreed with the holding of the Third
Circuit in _Cerro_.  In addition, the Commission has held that the
Secretary was empowered under the original version of section 1903.4 to
obtain _ex_ _parte_ warrants.  _Davis Metal Stamping_, 10 BNA OSHC at
1747, 1982 CCH OSHD at p. 32,900.

[[7]] The reasonableness of OSHA's interpretation is also supported by
the fact that it was later accepted by the Commission and a majority of
the courts of appeals that considered the issue.  See note 6 _supra_.

[[8]] See also his views in _Equitable Shipyards, Inc_., 85 OSAHRC
_______,12 BNA OSHC 1288, 1985 CCH OSHD ¶ 27,237 (Nos. 81-1685, 81-1762
and 81-2089, 1985); _Smith Steel Casting Co_., 85 OSAHRC, ______, 12 BNA
OSHC 1277, 1985 CCH OSHD ¶ 27,263 (Nos. 80-2069 and 80-2322, 1985)
_appeal filed_, No. 85-4346 (5th Cir. May 21, 1985); _Thermal Reduction
Corp_., 85 OSAHRC __________, 12 BNA OSHC 1264, 1985 CCH OSHD ¶ 27,248
(No. 81-2135, 1985); _Davis Metal Stamping_, 12 BNA OSHC at 1261, 1985
CCH OSHD at p. 35,156; _Brooks Woolen_, 12 BNA OSHC at 1233, 1985 CCH
OSHD at p. 35,148; _Robert K. Bell Enterprises, Inc_., 85 OSAHRC ____,
12 BNA OSHC 1149, 1985 CCH OSHD ¶ 27,139 (No. 78-4332, 1984), _aff'd_,
No. 85-1547 (10th Cir., Feb. 19, 1986); _Beauty Craft Tile of the
Southwest, Inc_., 85 OSAHRC _______, 12 BNA OSHC 1082, 1983-84 CCH OSHD
¶ 27,091 (No. 80-471, 1984).

[[9]] Once the warrant has been executed and enforcement proceedings
commenced before the Review Commission, a majority of courts have held
that the district courts should refrain from considering further
challenges to the validity of the warrant.  Rather, the matter should be
considered by a court of appeals after a full factual record has been
developed by the Review Commission. _Babcock & Wilcox_, 610 F.2d at 1136
("The question in this case is not whether the issues may be heard by an
Article III court, but _when_.").  _But_ _see_ _Weyerhauser Co. v.
Marshall_, 592 F.2d 373 (7th Cir. 1979).

The function of the Commission and its judges is to hear employers'
challenges to the Secretary's evidence in support of citations and, only
consistent with this authority, can the Commission consider claims that
evidence should be suppressed because of an invalid inspection.  _See_
section 10(c) of the Act, 29 U.S.C. § 659(c); _Babcock & Wilcox_, 610
F.2d at 1136; _see_ _also_ _Establishment_ _Inspection of the Metal Bank
of Am., Inc_., 700 F.2d 910 (3d Cir. 1983); _Baldwin Metals_, 642 F.2d
at 773 n.11.

[[10]] _Smith Steel Casting Co. v. Donovan_, 725 F.2d 1032, 1035-1036
(5th Cir. 1984); _Robert K. Bell Enterprises, Inc. v_. _Donovan_, 710
F.2d 673 (10th Cir. 1983), _cert. denied_, 464 U.S. 1041 (1984), _Metal
Bank_, 700 F.2d at 914; _Donovan v. Sarasota_ _Concrete Co_., 693 F.2d
1061, 1066 (11th Cir. 1982); _Babcock & Wilcox_, 610 F.2d at 1136-1137;
_In re Inspection of Central Mine_ _Equipment Co_., 608 F.2d 719 (8th
Cir. 1979); _Bethlehem Steel Corp. v. OSHRC_, 607 F.2d 871 (3d Cir.
1979); _In re Worksite_ _Inspection of Quality Products, Inc_., 592 F.2d
611 (1st Cir. 1979).

[[11]] Paragraph 9 of the Application for the warrant described the
Foundry NEP in the following way.

The National Emphasis Program (hereinafter "NEP") was established in
1976 to reduce hazards in industries reporting a higher than average
rate of injuries and illnesses.  The first target industries selected by
NEP were iron and steel foundries and aluminum, bronze, brass and copper
casting and metal stamping plants.  Foundries reported a 1973 illness
and injury rate of 26.6 per 100 workers as compared to the national
average of 8.8.

NEP inspections are conducted by teams of safety officers and industrial
hygienists.  NEP inspection teams are not limited to identifying
violations as during ordinary inspections, but are also required to
provide foundry operators with technical assistance by evaluating unsafe
conditions and practices, identifying abatement methods and techniques,
establishing or maintaining safety and health programs and providing a
detailed evaluation of the employer's safety program.

The NEP goal is to achieve a significant reduction in the incidence of
occupational injuries and illnesses due to hazards in the foundry
industry.  NEP functions such as consultation, training and education,
evaluation and compliance monitoring are essential to the achievement of
his goal.

[[12]] As our discussion indicates, Penn Steel's statement in its
initial review brief that it withdraws from the settlement agreement is
to be treated as a motion to withdraw which may be granted or denied by
the Commission.   As such, the request to withdraw should have been
presented to the Commission in the form of a motion, filed separately
from the brief.  _See_ _McWilliams Forge Co_., 84 OSAHRC, 11 BNA OSHC
2128, 2131 and n.6, 1984-85 CCH OSHD ¶ 26,979, p. 34,671 & n.6 (No.
80-5868, 1984), _citing_ Fed. R. Civ. P. 7(b)(1) and Fed. R. App. R.
27(a).  At the time that Penn Steel filed its review brief with the
motion stated in it, the Commission had not yet issued McWilliams Forge
disapproving the practice of incorporating motions in briefs.

[[13]] We acknowledge that Penn Steel did not raise the preemption issue
and that we are raising section 1910.215(b)(6) in this litigation for
the first time.  We have done so because the preemption of section
1910.212(a)(1) by section 1910.215(b)(6) became plainly evident as we
reviewed the evidence as to these items and items 53(a) and (e), which
allege violations of section 1910.215(a)(2).  Ordinarily, we would
afford the parties the opportunity to brief this issue.  In this case,
however, the parties have already submitted lengthy supplemental briefs
and have argued the case orally.  In view of the age of the case, and in
the interest of judicial economy, we will dispose of this item on the
existing record.

[[14]] The standard provides:

§ 1910.212 _Several requirements for all machines_
(a) _Machine Guarding_
* * *
(3) _Point of operation guarding _
* * *
(ii) The point of operation of machines whose operation exposes an
employee to injury, shall be guarded.  The guarding device shall be in
conformity with any appropriate standards therefor, or, in the absence
of applicable specific standards, shall be so designed and constructed
as to prevent the operator from having any part of his body in the
danger zone during the operating cycle.

[[15]] We have considered whether section 1910.212(a)(3)(ii) is
preempted by the more particular standards at 29 C.F.R. §
1910.215(b)(5), (b)(10)(iv) and (v).  _See_ _also_ 29 C.F.R. §
1910.211(b)(13).  However, the description of the machine cited in item
46(a) is not sufficient for us to decide whether these more particular
standards are applicable.

[[16]] The standard provides:

§ 1910.215 _Abrasive wheel machinery _
* * *
(a) _General requirements _
* * *
(2) _Guard design_.  The safety guard shall cover the spindle end, nut,
and flange projections.  The safety guard shall be mounted so as to
maintain proper alignment with the wheel, and the strength of the
fastenings shall exceed the strength of the guard, except:

[[17]] That section provides:

§ 1910.243 _Guarding of portable powered tools _
* * *
(c) _Portable abrasive wheels_
* * *
(3) Safety guards used on machines known as right angle head or vertical
portable grinders shall have a maximum exposure angle of 180º, and the
guard shall be so located so as to be between the operator and the wheel
during use.  Adjustment of guard shall be such that pieces of an
accidentally broken wheel will be deflected away from the operator.

[[18]] The standard requires

§ 1910.213 _Woodworking machinery requirements_.

(j) _Jointers_.

(4) Each hand-fed jointer with horizontal cutting head shall have a
guard which will cover the section of the head back of the gage or fence.

[[19]] See footnote 15.

[[1]] Although handed down after this warrant was issued, the holding in
_Barlow's_ must be applied retroactively.  In _United States_ _v.
Johnson_, 457 U.S. 537, 549 (1982), the Supreme Court ruled that fourth
amendment cases are generally to be applied retroactively unless they
are a "clear break with the past."  _Barlow's_ was not a clear break
with the past, but, rather, was the culmination of a long line of
administrative search cases beginning as far back as _Camara v.
Municipal Court_, 387 U.S. 523 (1967) and _See v. City of Seattle_, 387
U.S. 541 (1967).  Indeed, the holding in _Barlow's_ was "clearly
foreshadowed."  _see_ _Chevron Oil Co._ _v. Huson_, 404 U.S. 97, 106
(1971), by numerous lower court decisions that relied on _Camara_ and
_See_ in requiring OSHA to obtain warrants to inspect.  _See_ _Stanbest,
Inc._, 83 OSAHRC 10/D6, 11 BNA OSHC 1222, 1233-34, 1983-84 CCH OSHD ¶
26,455 pp. 33,626-27 (No. 76-4355, 1983) (Rowland, dissenting).  _Cf_.
_Carl M. Guepel Const. Co_., 82 OSAHRC 60/B5, 10 BNA OSHC 2097, 1982 CCH
OSHD ¶ 26,309 (Nos. 81-55 & 81-56, 1982) (retroactive application to be
given to the Commission decision in _Sarasota Concrete Co._, 81 OSAHRC
48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360 (No. 78-5265, 1981),
holding that evidence must be suppressed if probable cause for a warrant
does not exist).

[[2]] In this respect the present affidavit is remarkably similar to the
affidavit that was struck down in _Barlow's_ because there were "no
facts presented that would indicate why the inspection of _Barlow's_
establishment was within the program."  436 U.S. at 323 n.20.

[[3]] Contrary to Commissioner Wall's analysis, _Urick Property_ is
directly on point.  There, as here, there was "no recital of a rational
basis for the selection" of the particular foundry to be inspected under
the NEP, and it is entirely possible that the selection of Penn Steel
for a general inspection under the NEP was as arbitrary as the court
found the selection of Urick to be.   Commissioner Wall's justification
of the present warrant is based on Penn Steel's previous violations and
the fact that foundries may be dangerous places to work.   This
reasoning begs the question.  If the probable cause for the warrant was
Penn Steel's previous violations, then the warrant should have been so
limited.  If a broad, wall-to-wall inspection was really due at that
time under the NEP, then the warrant application should have described
how Penn Steel was selected pursuant to the NEP.   Since the warrant
application failed to describe the selection process, the warrant here
fails for precisely the same reasons as in _Urick Property_.

[[4]] My personal view is that if a party enters into a settlement
merely to avoid the expense of litigating factual issues because he
believes that the case is controlled by a question of law and intends to
seek review on that question of law, he should make it clear that that
is the reason, or at least one reason, for his agreement to the settlement.