On Appeal from the United States District Court for the District of New Jersey; Civil Action No. 90-1940.
Greenberg and Cowen, Circuit Judges, and Ronald L. Buckwalter, District Judge.*fn**
The Secretary of Labor appeals from a July 6, 1990, order of the district court quashing an administrative search warrant for the facility of International Matex Tank Terminals -- Bayonne ("International Matex") and dismissing her complaint for an order holding International Matex in civil contempt for refusing to honor the search warrant. Because we conclude, contrary to the district court, that the magistrate had probable cause to issue a search warrant for a "wall-to-wall" inspection of the facility, we will reverse and remand for further proceedings.*fn1
International Matex employs approximately 120 people in its Bayonne, New Jersey, facility at which it receives, stores, blends, and ships bulk liquid petroleum products. On September 25, 1989, the Occupational Safety and Health Administration ("OSHA") received a written complaint from Dennis P. Collins, the Mayor of Bayonne, alleging that International Matex's facility had been the site of several gas tank leaks between August 1986 and August 1989. The mayor also contended that he had received anonymous complaints about International Matex's facility, stating that:
(1) Poor housekeeping exists in the Maintenance Shop Building.
(2) Employees are forced to work overtime.
(3) There are no toilet facilities or water in the dock area.
(4) There is no shower in the dock or pier area for purposes of assisting employees in the event of a product spill.
(5) Apparently some management personnel are living on the third floor of the main office.
(6) The west side of pier #1 and the east side of pier #4, it is represented are in a total state of disrepair and therefore not safe.
(7) A further representation is that on pier #7 hoses are strewn all over the place.
(8) It is further alleged that respirators and goggles to be used for product use are not always in evidence.
(9) Additionally, it is represented that the area in back of tank #'s 1701, 1702 and 1704, in the center of the plant area, there possibly exists contamination.
(10) Further representation concerns a spill of #6 oil at approximately 6:30 a.m. on September 4th, 1989 that was not reported by the company but called in to Police Headquarters by an employee at 1:00 a.m. on Tuesday, September 5th.
(11) A final allegation represents that behind tank #6206, phenol and other product have been buried underground and covered over.
Inasmuch as certain of these allegations, if true, would constitute serious violations of the Occupational Safety and Health Act of 1970 ("OSH Act" or "the Act"), 29 U.S.C. §§ 651-678, OSHA assigned Compliance Officers Jane Secor and Steve Sawyer to visit the facility.
On January 23, 1990, these officers visited the facility and conferred with Dennis M. Barbarise, International Matex's Administrative Manager, about the complaint. Barbarise told them that International Matex would cooperate and thereafter the compliance officers reviewed various safety programs and minutes of safety meetings. According to Barbarise, that afternoon, "the Officers expressed an interest in conducting an inspection of the entire facility." The compliance officers inspected Pier No. 1 and its contiguous areas the following day. They found several minor violations and, in addition, concluded that Pier No. 1 was in "imminent danger" and threatened to obtain an order closing the pier unless repair work commenced right away. Consequently, International Matex developed a plan of short term remedial work to address OSHA's concerns, to be completed within 14 days.
On January 31, 1990, the compliance officers inspected the Maintenance Department and, on February 2, 1990, they returned to inspect the coal pier. According to the affidavit of OSHA's Area Director, Robert Kulick, the compliance officers discovered the following violations during this consensual inspection:
No Hazard Communications (29 CFR 1910.1200) Program appears to exist at these premises; no confined space procedures appear to have been developed or implemented, although [the compliance officers] have observed and learned that employees are required to enter tanks and other vessels, confined spaces, that contain or contained hazardous substances; employees are required to wear respirators routinely throughout the facility, but no respirator program, required by OSHA standards, appears to have been established or implemented; housekeeping - (29 CFR 1910.106(b)) -storage tanks for hazardous materials lack diking, while weeds and combustible are adjacent to the tanks; fire fighting - two fire fighting trucks with signs, "fire rescue" were observed, but evaluation with OSHA standards (29 CFR 1910.156) must still be investigated; after the limited view my [compliance officers] have observed of the electrical hazards, there appear to be electrical hazards present to a large extent everywhere, which could result in electrocution hazards, or fire/explosion hazards.
When the compliance officers returned on February 9, 1990, Barbarise told them that, if OSHA wanted to continue its inspection, it would need a search warrant. At this time, the compliance officers had seen approximately thirty percent of the facility.
On March 12, 1990, the President of Local 8-406 of the Oil, Chemical & Atomic Workers International, Charles Horvath, sent a letter to OSHA repeating allegations of safety violations including electrical hazards on the piers, at tank locations, and at pump areas; the absence of safety showers; ground contamination from leaky pipes and tanks; poor house cleaning throughout the plant; the condition and availability of safety equipment; and the inadequacy of safety programs for fire safety, vessel entry, and respirator training. International Matex contends that this action was in retaliation for its winning a protracted strike dispute six months earlier.
On April 2, 1990, OSHA presented to a federal magistrate an application for a warrant to inspect the entire facility without proper supporting affidavits. The magistrate nonetheless issued the warrant on April 5, 1990. While OSHA attempted to execute the warrant it ultimately returned it unexecuted. OSHA presented a second application to the ...