On Petition To Review An Order Of The Occupational Safety And Health Review Commission
Before Cummings, Chief Judge, Swygert, Senior Circuit Judge, and Jameson, Senior District Judge.*fn*
Kropp Forge Company has filed a petition to review an order of the Occupational Safety and Health Review Commission holding that Kropp violated 29 U.S.C. § 654(a)(2)*fn1 because of noncompliance with an occupational safety and health standard, codified at 29 C.F.R. § 1910.95(b)(3), that provides in full:
"In all cases where the sound levels exceed the values shown herein,*fn2 a continuing effective hearing conservation program shall be administered."
The citation against Kropp charged, and after a hearing the Administrative Law Judge (ALJ) found that noise levels generated by forging hammers at Kropp's Chicago steel forging plant continuously exceeded 90 decibels and that Kropp's hearing conservation program lacked six elements necessary to constitute an effective program as required by the above-quoted standard.*fn3 The ALJ further found that the violation was "willful-serious" as charged and assessed a penalty of $5000. The Commission declined Kropp's petition for discretionary review so that the ALJ's July 2, 1980, opinion became the final order of the Commission on August 7, 1980, pursuant to 29 U.S.C. § 661(i). We conclude that the standard under which Kropp was cited is unenforceably vague and therefore reverse.
As a preliminary matter, we reject Kropp's contention that all evidence gathered during two December 1978 Occupational Safety and Health Administration (OSHA) inspections should have been suppressed on the ground that it was obtained pursuant to a warrantless search in violation of the Fourth Amendment. Kropp concedes that it granted OSHA permission to enter its premises on these occasions to verify an employee complaint, unrelated to the present charges, concerning excessive exposure to carbon monoxide fumes from fork-lift trucks. At the time of her first visit to the plant, on December 5, 1978, the OSHA compliance officer stated that her inspection would not go beyond the area of the complaint, i. e., the plant's "KFA Building" where the fork-lift trucks were located. However, after making an initial walk around the building, the compliance officer determined that sampling of noise levels generated by forging hammers located in the KFA Building was also required. Accordingly, the inspection was continued on December 13 and 19, at which times sampling for both carbon monoxide and noise levels was conducted.*fn4 Kropp argues that its consent was limited specifically to the carbon monoxide investigation so that the noise level samples were taken unlawfully.
The record shows, however, that at all times on December 13, the compliance officer was accompanied by Kropp's Safety Director and that on December 19, she and a second compliance officer were accompanied by the Safety Director and Kropp's General Manager. Both men had been informed that noise sampling would be conducted, and they raised no objections to the approximately five hours of sampling conducted on each day. Moreover, the Safety Director requested and received the results from the noise sampling taken on both days. While it is true that Kropp refused entry to a compliance officer seeking to continue the noise inspection in January 1979, the only surveys attacked by Kropp are those that took place on December 13 and 19.*fn5 Since Kropp's representatives were present at all times during those inspections and did not raise any objections when informed of the intended sampling, any Fourth Amendment objection to those surveys was waived. Marshall v. Western Waterproofing Co., Inc., 560 F.2d 947, 950-951 (8th Cir. 1977); Dorey Electric Co. v. OSHRC, 553 F.2d 357, 358 (4th Cir. 1977).
Kropp next argues that the standard which it is said to have violated does not provide "fair warning" of what is required or prohibited and is therefore unenforceably vague under United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S. Ct. 298, 65 L. Ed. 516, and its progeny.*fn6 We agree. The rationale of Cohen Grocery has been applied in a number of decisions under the Occupational Safety and Health Act. In Dravo Corporation v. OSAHRC, 613 F.2d 1227, 1234 (3d Cir. 1980), for example, an employer was held not to be subject to sanctions for non-compliance with safety standards "without adequate notice in the regulations of the exact contours of his responsibility." The court applied the traditional rule that the applicability of penal sanctions in regulations is to be narrowly construed by the judiciary and stated that OSHA regulations must "be written in clear and concise language so that employers will be better able to understand and apply them," quoting from Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 650 (5th Cir. 1976). See also Bethlehem Steel Corporation v. OSAHRC, 573 F.2d 157, 161-162 (3d Cir. 1978); 4 Davis, Administrative Law Treatise § 301.2. The regulation in issue here, providing only that "a continuing effective hearing conservation program shall be administered," misses the mark considerably.
Kropp, as noted, was cited for non-compliance because its program lacked the following six elements:
1. Annual audiometric tests.
2. Referral of employees to a physician.
3. Re-tests of employees with significant threshold shifts.
4. Selection and use of hearing ...