DeKalb Forge Company

Plain-English summary

DeKalb Forge stipulated that it had not complied with seven hearing-conservation provisions and two employee-record-access provisions at its Illinois forging shop. The judge vacated the citations after relying on a court panel decision that invalidated the hearing-conservation amendment, but the full court later rejected that challenge. The Commission held that DeKalb's remaining validity argument did not apply because the cited provisions were triggered by high workplace noise or the use of hearing protectors, not solely by an employee's hearing loss. It also rejected DeKalb's inspection-warrant and discriminatory-enforcement arguments. The Commission affirmed the hearing-conservation citation with a $450 penalty and affirmed the record-access citation without a penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(c); 29 C.F.R. § 1910.95(e)(1); 29 C.F.R. § 1910.95(l)(5); 29 C.F.R. § 1910.95(m)(1); 29 C.F.R. § 1910.95(m)(2); 29 C.F.R. § 1910.95(n)(1); 29 C.F.R. § 1910.95(o)(1); 29 C.F.R. § 1910.20(e)(3)(i); 29 C.F.R. § 1910.20(g)(2)
• Outcome: Both citations affirmed; $450 assessed for hearing-conservation violations and no penalty for record-access violations.
• Key point: The cited hearing-conservation duties were valid as applied because DeKalb's workplace noise exceeded the regulatory trigger levels.

Full text (OSHRC public release)

Docket No. 83-0299

SECRETARY OF LABOR,

Complainant,

v.

DEKALB FORGE COMPANY,

Respondent.

OSHRC Docket No. 83-0299

DECISION

Before:  BUCKLEY, Chairman, and WALL,
Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and
Health Review Commission under 29 U.S.C. � 661(i), 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.  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).

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

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

I.  Inspection Issues

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II.  The Validity of the Standards

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III.  Discriminatory Enforcement

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

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

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

IV.  The � 1910.20 Record-Access Citation;
Penalties

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

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

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

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

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

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  MAR 17 1987

SECRETARY OF LABOR,

Complainant

v.

DEKALB FORGE COMPANY,

a Corporation,

Respondent.

OSHRC DOCKET NO. 83-0229

DECISION

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

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

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

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

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

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

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

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

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

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

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

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

Ralph B. Maxwell

Judge, OSHRC

Dated:  January 9, 1985

FOOTNOTES:

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

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

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

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

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

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

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

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

[[9]] With respect to this item, the stipulation
provides that DeKalb did not make readily available to employees copies of section 1910. 95 .
  This reference to section 1910.95 appears to be, inadvertent.  We conclude,
based on the wording of the citation and of � 1910.20(g)(2) that the parties intended to
stipulate that copies of section 1910. 20 were not made readily available to
employees.