United States of America v. Central Processing Corp.

Filing 1

ORDER for issuance of OSHA inspection warrant. Signed by Magistrate Judge Stephen L. Crocker on 1/30/14. (Attachments: # 1 Exhibit A - OSHA Field Operations Manual, # 2 issued warrant) (krj)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ESTABLISHMENT

INSPECTION

OF:

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CENTRAL PROCESSING CORP.
d/b/a COUNTY MATERIALS CORP.
1203 70th Avenue
Roberts, WI 54023

MISC CASE NO.

1'-( m (- (

APPLICATION FOR INSPECTION WARRANT
UNDER THE OCCUPATIONAL SAFETY
AND HEALTH ACT OF 1970
To the Honorable United States Magistrate Judge:
Ruth Wright, a duly authorized Compliance Safety and Health Officer ("CSHO") of the
Occupational Safety and Health Administration ("OSHA"), United States Department of Labor,
hereby applies for an inspection warrant, pursuant to Section 8 of the Occupational Safety and
Health Act ofl970 (29 U.S.c. 651 et seq.), hereinafter referred to as the "Act", and the Regulations
issued pursuant thereto, for the safety and health inspection and investigation of the place of
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business of CENTRAL PROCESSING CORP. d/b/a COUNTY MATERIALS CORP. at 1203 70
Avenue, Roberts, WI 54023 (hereinafter "CMC").
The undersigned, being duly sworn, deposes and says:
1.

The aforesaid worksite comprises the workplace of employees who are employed by

an employer, believed to be engaged in a business affecting commerce, and is subject to the
requirements of the Act.
2.

On January 24, 2014, the OSHA Appleton Area Office received a referral from a

State Agency, regarding an injury of a CMC employee at one of CMC's facilities located at 1203
70th Avenue, Roberts, WI 54023 ("Worksite"). The State Agency indicated that a CMC employee's
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leg was crushed by a concrete form that had fallen on the employee at the Worksite. OSHA learned
that the employee had his leg amputated just below the knee and was still in the hospital as of
January 25, 2014.
4.

I know from my training and experience that the existence of these conditions may be

in violation of the Act, specifically the failure to provide employees with a workplace free of
recognized hazards, as well as the regulations issued pursuant to the Act.
5.

In accordance with OSHA Directive CPL 02-00-150-"Field Operations Manual,"

Chapter 9 "Complaint and Referral Processing" (Exhibit A),l Area Director Mark Hysell
determined that this referral, from a state governmental agency, is a non-formal complaint which
meets the criteria for an on-site inspection of the Worksite as set forth at Chapter 9, paragraph
C.3, as it "alleges that a permanently disabling injury ... has occurred as a result of the
complained ofhazard(s), and there is reason to believe that the hazard or related hazards still
exists." Exhibit A, p. 9-4.
6.

Randy Thompson, a Regional Manager and an official representative of CMC, had

previously informed CSHO Wright that company policy does not permit warrantless inspections by
OSHA. Therefore, the Area Director and the Regional Solicitor of the U.S. Department of Labor
believe that the issuance of a pre-inspection warrant is necessary and appropriate and in
accordance with 29 CFR 1903.4(b).
7.

The inspection and investigation will be conducted by one or more compliance

officers designated by the Secretary of Labor, United States Department of Labor, to be his

1 Exhibit A, which became effective on April 22, 2011, is a federal OSHA instruction which establishes policies and
procedures for handling complaints relating to workplace safety and health conditions. A complaint inspection is an
on-site examination of an employer's worksite that is initiated primarily as a result of a complaint; is conducted by
an OSHA compliance officer at the employer's worksite, and meets at least of the criteria identified in Section
I.C."Criteria Warranting an Inspection" of Exhibit A.

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authorized representative( s), pursuant to proper and reasonable administrative standards contained in
regulations duly issued by the Secretary under authorization granted in the Act and found in 29 CFR
~1903.
8.

The inspection and investigation

will be conducted during regular working hours,

within reasonable limits, and in a reasonable manner. The Compliance Officer(s) credentials will be
presented to the employer,
practicable
promptness,
9.

and the inspection

after the issuance of this inspection
in accordance

and investigation

will be commenced

warrant and will be completed

as soon as

with reasonable

with Section 8(a) of the Act.

The requested safety inspection and investigation

is limited to those areas and/or

conditions specified in Paragraph 2 of this Application For Inspection Warrant, as well as to any
hazardous work areas, procedures and/or working conditions where work is performed or permitted to
be performed by employees of the employer within the plain view ofthe Compliance Officer(s) during
the course of the inspection, and to all pertinent conditions, structures, machines, apparatus, devices,
equipment, materials and all other things therein, including a review of records required by the Act
and/or directly related to the purpose ofthe inspection (but not including medical records as defined in
29 CFR 1910.1 020(c )(6)(i)), and related to the hazardous safety and/or health conditions referred to in
Paragraph 2 of this Application

For Inspection Warrant, and bearing on whether this employer is

furnishing to its employees employment and a place of employment which is free from recognized
hazards that are causing or are likely to cause death or serious physical harm to its employees, and
whether this employer is complying with the occupational safety and health standards promulgated
under the Act and the rules, regulations, and orders issued pursuant to the Act.
10.

The compliance officer(s) are authorized by Section 8(a) (2) of the Act to inspect and

investigate the place of employment and to question privately any employer, owner, operator, agent,
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or employee of the establishment.
02-00-150,

Chapter

By regulation at29 CFR

3, (OSHA Instructions

S 1903.7

attached hereto as Exhibit A, pp. 3-1 - 3-35), the

compliance officer(s) are further authorized to take environmental
by personal

and OSHA Instructions CPL

sampling devices attached to employees,

samples, including samples taken

and to take or obtain photographs

and/or

videotapes related to the purpose of the inspection.
II.

The compliance officer(s) may be accompanied

and a representative
12.

by a representative

of the employer

authorized by his employees, pursuant to Section 8( e) of the Act.

A return will be made to the Court at the completion

of the inspection

and

investigation.
13.
Occupational

The authority

for issuance

of the inspection

Safety and Health Act of 1970 (29 U.S.c.

warrant

is Section

8(a) of the

651 et gm.), and the regulations

issued

pursuant thereto in 29 CFR 1903.3 and 1903.4. See Marshall v. Barlow's Inc., 436 U.S. 307 (1978);

Matter of Establishment Inspection of Kelly-Springfield Tire Co., 13 F.3d 1160 (7th Cir. 1994);
Matter of Midwest Instruments, 900 F.2d 1150 (7th Cir. 1990); In re Cerro Copper Products
Company, 752 F.2d 280 (7th Cir. 1985); Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d
1313 (7th Cir. 1980); Stoddard Lumber Co. Inc. v. Marshall, 627 F. 2d 984 (9th Cir. 1980); Matter

of Establishment Inspection of Gilbert & Bennett Mfg. Co., 589 F.2d 1335 (7th Cir. 1979) cert.
denied, 444 U.S. 884 (1979).

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"

Dated:

/~p~/ _
/s/
RUTH WRIGHT
Compliance Safety and Health Officer
U.S. Department of Labor
Occupational Safety and Health
Administration

r
Sworn to before me and subscribed telephonically

on this

)an

day of

JNlI/ARr", 2014.

1I~

STEPHEN L. CROCKER
United States Magistrate Judge

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