facility in January rather than in July violates the standard set forth in Barlow's. The steps outlined above were detailed in the O.S.H.A. Instruction CPL 2.25B that was attached to Mr. Renner's application. Renner cited the applicable sections in his affidavit, and stated that the instruction procedures were followed in this case. Perhaps the application could have enumerated and explained these steps with more clarity, but that complaint is hardly grounds for invalidating the warrant.
Plaintiff's reliance on Matter of Urick Property, 472 F. Supp. 1193 (W.D.Pa.1979) is misplaced. In Urick, the Area Office was proceeding in accordance with an administrative plan that allotted only one inspection from among all of the foundries in the region. Additional information was necessary, therefore, to insure that the selection of the particular foundry was based on neutral, non-arbitrary criteria. Id. at 1195. Such an individualized showing would be superfluous in the instant situation in which every facility on the register is inspected. Random selection of a worksite pursuant to a rationally and neutrally designed industry-wide investigation, like the one undertaken here, has been specifically held to establish the requisite probable cause. See Stoddard Lumber Co., Inc. v. Marshall, 627 F.2d 984, 988 (9th Cir. 1980). See also Chicago Aluminum Castings Co. v. Donovan, 535 F. Supp. 392 (N.D.Ill.1981), at 13. Indeed, the court in Urick acknowledged the validity of random selection as a basis for valid O.S.H.A. warrant. Matter of Urick Property, 472 F. Supp. 1193, 1195 (W.D.Pa.1979)
II. Scope of the Warrant
Plaintiff also contends that the warrant, as issued, is overly broad. This argument is similarly without merit. As Defense counsel has aptly pointed out, a warrant for a general inspection must be comprehensive in scope, because the exact location of violations cannot be known prior to entering the establishment. Marshall v. Chromalloy American Corp., 589 F.2d 1335, 1343-44 (7th Cir. 1979). Accord, In The Matter Of Peterson Builders, Inc., 525 F. Supp. 642, 10 OSHC(BNA) 1169, 1171 (E.D.Wis.1981). Cf. Marshall v. North American Car Co., 626 F.2d 320, 323 (3d Cir. 1980) (distinguishing between § 8(f) and § 8(a) inspections). We do not find that the proposed inspection contravenes any regulations or statutes limiting O.S.H.A. general inspections, or transgresses the reasonableness requirement of the Fourth Amendment. Chromalloy, 589 F.2d at 1343-44. Moreover the regulations promulgated by O.S.H.A. explicitly "preclude unreasonable disruption of the operations of the employer's establishment." 29 C.F.R. § 1903.7(d) (1981).
Plaintiff specifically objects to O.S.H.A.'s intention to affix personal monitoring equipment upon Ingersoll-Rand employees pursuant to the authorization of 29 C.F.R. § 1903.7(b) to "take environmental samples" and "employ other reasonable investigative techniques." The courts have universally found personal sampling devices to be a reasonable mode of inspection. See e.g., Matter of Metro-East Manufacturing Co., 655 F.2d 805 (7th Cir. 1981); Matter of Keokuk Steel Castings, 638 F.2d 42, 46 (8th Cir. 1981); Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1290 (9th Cir. 1979); American Smelting & Refining Co., 501 F.2d 504, 514 (8th Cir. 1974); Donovan v. Blue Ridge Pressuring Castings, Inc., 543 F. Supp. 53 (M.D.Pa. 1981); Marshall v. Rochester Shoe Tree Co., Inc., Misc. No. 306 (N.D.N.Y. April 4, 1981); In The Matter Of The Inspection of Cleveland Electric Illuminating Co., Misc. No. 80-2128 (N.D.Ohio, Feb. 27, 1981). Nevertheless, the Seventh Circuit, in Matter of Metro East, prohibited personal monitoring because in its view the regulation does not provide "fair warning" to employers that such sampling devices are reasonable investigative techniques within the meaning of 29 C.F.R. § 1903.7(b). Matter of Metro-East Manufacturing Co., 655 F.2d 805, 811 (7th Cir. 1981). We agree with the dissent in that case, however, that the language of the regulation, particularly when considered within the context of the Occupational Health and Safety Act itself, is not so ambiguous and uncertain as to violate due process. Id. at 812. We also find that the holding of PLUM CREEK, in which the court declined to order the company to rescind its policy forbidding employees to wear monitoring devices, is not applicable here. See Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1290 (9th Cir. 1979). Ingersoll-Rand has made no mention of any such company policy, nor has it presented allegations that the devices pose a threat to employee safety. See Matter of Keokuk Steel Castings, 638 F.2d 42, 46 (8th Cir. 1981).
III. Petition for Adjudication of Civil Contempt
In its arguments opposing the government's application for an adjudication of civil contempt, Ingersoll-Rand makes much of the fact that it attempted to consult with O.S.H.A. officials prior to the application for a warrant and that its counsel requested to be present at the warrant hearing. Ex parte hearings are authorized by 29 C.F.R. § 1903.4, however, and § 1903.4(d) declares that "(e)x parte inspection warrants shall be the preferred form of compulsory process ...." 29 C.F.R. § 1903.4(d) (emphasis added). Although Ingersoll-Rand's attempts to reach an informal agreement with O.S.H.A. officials may be laudable, we do not think that factor excuses its refusal to comply with a valid warrant properly issued by Magistrate Havas.
Accordingly, we find Ingersoll-Rand to be in civil contempt of court. We will direct Ingersoll-Rand to purge itself of its contemptuous conduct by permitting inspection of its Shippensburg facility in accordance with the terms of the original warrant, at a date and time established by the appropriate O.S.H.A. officials. Because we do not find any evidence of bad faith on the part of Ingersoll-Rand-and no such allegations were asserted by O.S.H.A.-we will deny the Government's request for a compensatory fine. However, we will assess a conditional fine of five hundred dollars ($ 500) per day for each day Ingersoll-Rand fails to comply with the terms of this Order.
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