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IN RE ESTABLISHMENT INSPECTION OF BP OIL

February 18, 1981

In the Matter of Establishment Inspection of BP OIL, INC., Marcus Hook Refinery, Marcus Hook, Pennsylvania. BP OIL, INC.
v.
Ray MARSHALL, Secretary of Labor, United States Department of Labor



The opinion of the court was delivered by: GREEN

Pending before this Court is the petition of the U.S. Department of Labor, Occupational Safety and Health Administration (hereinafter "OSHA") for an order to show cause and for adjudication of BP Oil, Inc. and its employee, Richard Amos, in civil contempt of court (Misc. No. 80-270). In a separate civil action (C.A. 80-2031), BP Oil has filed a motion to enjoin OSHA from executing a limited inspection warrant at its Marcus Hook Refinery in Delaware County, Pennsylvania and to quash said warrant. For the reasons stated herein the issuance of the limited inspection warrant is affirmed. BP Oil is held in civil contempt of court and BP's motion for an injunction and to quash the warrant is denied. OSHA's request to hold Richard Amos in contempt is denied.

 The facts giving rise to these related actions were certified to this court by the magistrate pursuant to 28 U.S.C. § 636 and they are as follows: In early March, 1980 the OSHA office in Philadelphia received two letters from the Oil, Chemical and Atomic Workers International Union ("OCAW"), the union representatives for employees at BP Oil and Sun Oil, Inc. ("Sun"), alleging conditions at the refineries which posed an imminent danger to workers and the surrounding community. At the time OSHA received these letters employees at both companies were on strike. Based on these complaints the Philadelphia Area Director, Walter E. Wilson, applied for an ex parte inspection warrant pursuant to Section 8(f), 29 U.S.C. § 657(f) *fn1" of the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. § 651 et seq., authorizing its compliance inspectors to make an investigation of BP Oil's Marcus Hook Refinery.

 On March 17, 1980 a magistrate issued an ex parte warrant; when the OSHA inspectors demanded entry to the refinery BP Oil refused to allow them in. OSHA then filed a petition to adjudicate BP Oil in civil contempt. BP responded with a motion to quash the inspection warrant. After oral argument the motion to quash was granted on the ground that it was issued without notice to BP notwithstanding the fact that the regulations of OSHA did not empower it to seek ex parte warrants. Cerro Metal v. Marshall, 620 F.2d 964 (3d Cir. 1980).

 On March 19, 1980 the strike ended and the local union president, Stan Tussie, sent a telegram to OSHA advising it that the strike had ended and that they wanted to withdraw their complaints against BP. The OSHA Area Office contacted Mr. Tussie and told him that the agency would continue its investigation of the refinery. Subsequently, a meeting was held between OSHA's counsel and a BP employee after which the union drafted a "revised list of hazards". This new list served as the basis of OSHA's second application for a warrant. On March 28, 1980 OSHA filed a new application for an inspection warrant which in substance was identical to the one filed on March 17, 1980. After a full hearing on April 11 and 21-24, 1980 before a magistrate, the magistrate entered a memorandum and order on May 20, 1980 granting in part OSHA's application. A limited inspection warrant was subsequently issued on May 28, 1980. On the same day, OSHA compliance officers presented the warrant to BP's employees at the refinery, but as with the ex parte warrant, they were denied entry to the plant. In refusing to admit the OSHA compliance officers to the plant, Mr. Richard Amos, BP's Industrial Relations Manager, read to the group a statement prepared by BP's corporate counsel which stated that the warrant would not be honored because the question of the warrant's validity was being appealed. The OSHA inspectors then left the refinery. On May 28, 1980, BP filed a motion to stay the May 20th order pending appeal. This motion was denied by the magistrate without prejudice with leave to appeal to this court. The motion was also denied here on May 30, 1980.

 On June 3, 1980, pursuant to 28 U.S.C. § 636, the magistrate filed a certification of facts. OSHA then filed in this court petitions for the issuance of a rule to show cause why BP should not be held in civil contempt. BP answered with a memorandum in opposition to OSHA's motion and with a motion to quash the warrant. Also, BP filed a new civil action (C.A. 80-2031) seeking to enjoin execution of the warrant. The parties agree this latter civil suit and the petitions to quash and for an adjudication of civil contempt raise identical facts and questions of law. A hearing was held on December 5, 1980 on the motions to hold BP in contempt and to quash the warrant at which oral argument was presented on all the issues presented by both pending civil actions.

 I.

 One of BP's primary contentions in its challenge to the validity of the inspection warrant is that the warrant was not supported by probable cause. The two components of this argument are that the magistrate failed to make an independent determination of probable cause and that the evidence does not support a finding that there was probable cause to believe OSHA violations existed at the refinery where the warrant was directed. If probable cause was lacking BP may successfully assert this fact in support of its motion to quash and as a defense to a citation for civil contempt. Weyerhaeuser Co. v. Marshall, 592 F.2d 373 (7th Cir. 1979).

 BP argues correctly that the Fourth Amendment requires a neutral and detached magistrate to make an independent determination of the evidence presented in support of issuance of a search warrant for that warrant to be valid. Citing Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), BP argues that since the magistrate did not consider the source of the complaints or the reliability or credibility of the complainants, he could not have made an independent determination of probable cause. In support of its argument BP quotes passages from the magistrate's Memorandum and Order, dated May 20, 1980, which it contends shows that he applied the wrong standard of review. However, a fair reading of the record in proper context, including the magistrate's very thorough memorandum opinion, reveals that BP received a more extensive hearing than required in this type of application for an inspection warrant. The magistrate here conducted a hearing for a total of five days at which he permitted each party to examine the witnesses and he carefully analyzed the testimony of each witness, he carefully ferreted out testimony as to possible conditions that still existed and those which had been abated in "the revised list of hazards" on which the second application, dated March 28, 1980, was based. Thus, an independent determination was made that probable cause existed for the issuance of the inspection warrant by a neutral and detached magistrate.

 The second component of BP's argument is that the determination made by the magistrate was not supported by probable cause in that the record fails to establish that at the precise time the warrant was issued there were continuing OSHA violations in existence at the refinery. Clearly, the law does not require such specificity for an administrative search warrant. Indeed, the standards applied to warrants in criminal investigations are not applicable. This is clear from a reading of Justice White's opinion in Marshall v. Barlow's, 436 U.S. 307, 320, 98 S. Ct. 1816, 1824, 56 L. Ed. 2d 305 (1978).

 
Whether the Secretary proceeds to secure a warrant or other process, with or without notice, his entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that "reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular (establishment).' (Citations omitted).

 The "revised list of hazards", plus the evidence presented at hearing on which the magistrate relied in issuing the second warrant, provides sufficient particularization for a factfinder (the magistrate) to infer that these conditions create an imminent danger of harm to workers and the community.

 Further, since administrative searches need not satisfy criminal probable cause standards there is no need for the magistrate to test the reliability of the employees making the complaints.

 
Because the criminal law standard of probable cause is not required ... Camara and Barlow's do not require that the warrant application set forth the underlying circumstances demonstrating the basis for the conclusion reached by the complainant, or that the underlying circumstances demonstrate a reason to believe that the complainant is a credible person. Nor is there a requirement that the application request be supplemented with a detailed, signed employee complaint. Complainants' names may be deleted from complaints in order to protect them from employer harassment. See, e.g., 29 ...

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