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May 25, 1982

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Respondent

The opinion of the court was delivered by: WEBER

This action involves an inspection warrant issued by the United States Magistrate to the Occupational Safety and Health Administration (OSHA), authorizing the safety and health inspection of a plant operated by the Erie Bottling Corporation. This case is presently before us on two motions.

 The defendants have responded to this motion by filing a Petition for Adjudication of Civil Contempt. In this petition the defendant alleges that the OSHA inspection warrant obtained in this case is valid in all respects. Therefore, according to the defendant the plaintiff's refusal to honor this warrant constitutes a contemptuous act. Defendant requests that we order the plaintiff to purge itself of this contempt by permitting a plant inspection pursuant to the warrant. Defendant also requests that we assess its costs in defending this litigation against the plaintiff as a fine.

 The issues raised by these motions have been fully briefed and argued by both parties. Accordingly, this matter is now ripe for our disposition.

 This controversy began in January of this year. On January 8, 1982, Anthony Rizzo, an OSHA compliance officer, conducted a limited inspection of the Erie Bottling Corporation plant. Rizzo began this investigation by reviewing the employee injury records maintained by Erie Bottling Corporation. These records revealed that this employer had a lost work day injury rate of 29.7, a rate which far exceeded the national average for manufacturing industries of 5.2. Under existing OSHA regulations this finding mandated a full scope safety investigation of the plant. Accordingly, Rizzo requested permission to conduct a full scope inspection. Erie Bottling officials refused to permit such an inspection, however, stating that an inspection would only be allowed pursuant to a warrant.

 On March 10, 1982, John H. Stranahan, Acting Area Director for the Department of Labor made an ex parte application to the United States Magistrate for a warrant authorizing inspection of this plant. As described in the warrant application this inspection of the Erie Bottling Plant was one part of a comprehensive program of health and safety inspections conducted by OSHA. This particular facility was chosen for inspection pursuant to procedures set forth in OSHA Instruction CPL 2.25 B "Scheduling Systems for Programmed Inspections." (Reference File 21:9186) 1981 (CCH) OSHD P 12637 et seq., (hereinafter CPL 2.25 B).

 CPL 2.25 B describes in detail the procedures used by OSHA in developing a comprehensive health and safety inspection program. The first step in this procedure involves the preparation by OSHA's national office of an establishment list. This list contains all work establishments within the jurisdiction of the various OSHA regional offices. These establishments are listed on the basis of their standard industrial classification (SIC). The various industries on this list are then rank-ordered according to their lost workday rate, the highest lost work rate being at the top of the list. Only those industries whose lost workday rate exceeds the national average of 5.2 are included on this list. The establishment list prepared by the national office is then reviewed by the OSHA area director. He makes additions and deletions on the list as mandated by CPL 2.25 B I a (2)(a),(b).

 From this list an inspection register is then prepared. This inspection register consists of a schedule of establishments equal to twice the number of inspections authorized for the regional office for the current fiscal year. This list is then divided into two inspection cycles. OSHA regulations require that one inspection cycle be completed before inspections begin on those plants listed in the second inspection cycle. Regional officers are given considerable latitude in scheduling the inspection of facilities on each individual cycle.

 On March 19, 1982, the Magistrate, after a review of the proposed warrant and application, issued an inspection warrant to OSHA for this facility. On March 22, 1982, Mr. Rizzo served this warrant on the Erie Bottling Corporation. At that time plant officials requested that they be given an opportunity to review the warrant with counsel prior to permitting an inspection. Mr. Rizzo complied with this request and informed plant officials that he would return the next day to commence the inspection. On March 23, 1982, when Mr. Rizzo returned to the Erie Bottling plant he was informed that Erie Bottling would not permit the inspection to proceed. This lawsuit followed.


 Plaintiff's first argument in support of its motion to quash this inspection warrant is that the warrant application fails to provide the Magistrate with sufficient information to enable him to make a probable cause determination. In reviewing the Magistrate's probable cause determination we recognize that we are limited in what we may consider. In this case our scrutiny is limited to the warrant and application themselves and to the evidence presented before the Magistrate unless some strong showing is made that the party seeking the warrant sought to deceive the Magistrate. Franks v. Delaware, 438 U.S. 154, 171-172, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667 (1977). We have carefully reviewed all the materials submitted by the Department in its application for inspection warrant. Upon a review of this information we conclude that plaintiff's first argument is without merit.

 Since the United States Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), it has been clear that OSHA can conduct nonconsensual safety inspections only when a valid warrant has been issued authorizing such an inspection. The Court's decision in Barlow's recognized the fact that property owners had a constitutionally protected interest in being free from warrantless searches by administrative agencies. By interposing a judicial officer between property owners and these administrative agencies the Court sought to insure that administrative inspections are conducted in a reasonable manner, consistent with statutory and constitutional constraints.

 The Court in Barlow's recognized, however, that inspections by administrative agencies differ in kind from searches conducted by law enforcement officials. This difference is reflected in the Court's discussion of what constitutes probable cause justifying the issuance of an OSHA search warrant. As the Court noted, for an OSHA search warrant to issue, "probable cause in the criminal law sense is not required. For purposes of an administrative search ... 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).' A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general ...

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