KLI, INC.
OSHRC Docket No. 13490
Occupational Safety and Health Review Commission
November 15, 1977
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
William S. Kloepfer, Assoc. Reg. Sol., USDOL
R. W. Kerr, President KLI, Incorporated, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
In this case Judge George W. Otto found that Respondent (KLI) committed a nonserious violation of the noise standard at 29 C.F.R. 1910.95(b)(1). n1 The Judge ruled, among other things, that the question whether engineering or administrative controls are economically feasible is an affirmative defense. Because KLI did not answer the Secretary's interrogatories seeking data concerning the cost of controls, Judge Otto rejected KLI's claim that the suggested controls were not economically feasible. On review, KLI continues to argue that the suggested controls are economically infeasible. We set aside Judge Otto's decision and remand for further proceedings.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Section 1910.95(b)(1) provides:
When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.
Table G-16 entitled "Permissible Noise Exposures" includes the following:
|
|
Sound level dBA |
|
Duration per day, hours |
slow response |
|
8 |
90 |
|
6 |
92 |
|
4 |
95 |
|
3 |
97 |
|
2 |
100 |
|
1 1/2 |
102 |
|
1 |
105 |
|
1/2 |
110 |
|
1/4 or less |
115 |
n2 Although KLI does not specifically frame its argument in terms of "economic feasibility," it contends that the standard should not be interpreted to "compel KLI to quiet its machines at a great expense, even though KLI's employees are being adequately protected by personal hearing devices at relatively little cost." This argument directly raises the issue of economic feasibility as we have defined it. See Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD para. 21,009 (No. 3973, 1976), pet. for review withdrawn, No. 76-3229, 9th Cir., April 26, 1977.
[*2]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
KLI, a manufacturer of special screw machine products and components, was cited for allegedly failing to use feasible engineering or administrative controls to reduce the sound levels within permissible limits in the area of its plant containing Davenport screw machines.
Prior to the hearing, Judge Otto granted the Secretary's uncontested motion for interrogatories seeking data from KLI concerning the production and cost of a silencer developed for use with the Davenport machine, as well as financial data on the corporation. n3 However, following KLI's belated objection to providing such information, the Judge ruled that KLI was not obliged to answer the interrogatories, stating that they related to the affirmative defense of economic infeasibility and that the Secretary did not need the information to establish a prima facie case. The Judge did not rule on the Secretary's subsequent prehearing motion to compel responses.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Rule 53(a) of the Commission's rules of procedure provides:
Except by special order of the Commission or the judge, discovery depositions of parties, intervenors, or witnesses, and interrogatories directed to parties, intervenors, or witnesses shall not be allowed.
[*3]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Following the hearing, the Secretary filed a motion to strike from the record the testimony of two of KLI's witnesses regarding a possible reduction in the productivity of a Davenport machine when equipped with a silencer. n4 The Judge denied the motion, but ruled that KLI could not rely on a defense related to the cost of abatement when it had refused to supply financial information to the Secretary. The Judge did not reach the question of whether the silencers were economically feasible. Upon finding that the use of the silencers was technologically feasible, the Judge affirmed the citation.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 KLI owned 13 of the Davenport machines at the time of the alleged violation. It had purchased a silencer, which is an accoustical enclosure, from the Davenport company and had installed it on one of the machines. According to KLI's witnesses, the silencer produced a substantial noise reduction, but caused productivity losses and safety problems.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - [*4] - - - -
Since Judge Otto issued his decision, a divided Commission has held that the Secretary has the burden of proving the economic, as well as the technological feasibility, of noise reduction controls. Continental Can Co., supa note 2; Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD para. 21,854 (No. 10925, May 19, 1977) petition for review filed, No. 77-2565, 9th Cir., July 14, 1977. n5 The Seventh Circuit agrees with this interpretation. Turner Co. v. OSHRC, No. 76-2025, Aug. 31, 1977. Accordingly, the Judge's conclusion that KLI violated the standard cannot stand in the absence of findings that the suggested engineering controls are economically feasible.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Chairman Cleary adheres to the position that economic feasibility is not part of the Secretary's case-in-chief, but is properly considered only in fashioning an appropriate abatement order. Castle and Cooke Foods, supra (dissenting opinion); Continental Can Co., supra note 2 (dissenting opinion). If, however, the Secretary bears the burden of proving economic feasibility, Chairman Cleary agrees that information relevant to the issue should be made available to the Secretary.
[*5]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Before findings on economic feasibility are made, we think it is necessary to afford the parties an opportunity to pursue discovery and present additional evidence.
The Secretary sought, but was denied, discovery by written interrogatories of materials relating to economic feasibility. Under Rule 53(a), a party is not entitled to discovery by depositions or interrogatories as a matter of right; a special order of the judge or the Commission must be obtained. n6 Normally, discovery orders will be sought from the judge rather than from the full Commission, and the decision whether to allow discovery is within the judge's sound discretion. Wheeling-Pittsburgh Steel Corp., 4 BNA OSHC 1788, 1976-77 CCH OSHD para. 21,213 (No. 5784, 1976). The judge's exercise of discretion should be guided by the objective of providing a fair and prompt hearing to the parties. The judge should consider the need of the moving party for the information sought, any undue burden to the party from whom the discovery is sought, and, in balance, any undue delay in the proceedings which may occur.
- - - - - - - - - - - [*6] - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Our rules do not cover other types of discovery, and the liberal discovery rules of the Federal Rules of Civil Procedure therefore apply. 29 C.F.R. 2200.2(b). Those rules generally allow discovery of any unprivileged relevant material as a matter of right. See Fed. R. Civ. P. 26(b)(1). See also Wheeling-Pittsburgh Steel Corp., 77 OSAHRC 147/D13, 4 BNA OSHC 1578, 1976-77 CCH OSHD para. 20,969 (No. 10833, 1976) (production of documents); Reynolds Metals Co., 3 BNA OSHC 1749, 1975-76 CCH OSHD para. 20,214 (No. 4385, 1975) (entry upon land).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Here, the Secretary has the burden of proving the economic feasibility of noise reduction controls. Critical information necessary to enable him to meet this burden will often be within the control of the cited employer. Under this circumstance, the Secretary must be allowed reasonable discovery, through depositions or written interrogatories, of any unprivileged matter which is relevant to the economic feasibility of noise reduction controls. The discovery must be completed [*7] within appropriate time limits. 29 C.F.R. 2200.53(b). n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 Rule 53(b) of the Commission's rules of procedure provides:
In the event the Commission or the judge grants an application for the conduct of such discovery proceedings, the order granting the same shall set forth appropriate time limits governing the discovery.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Accordingly, the Judge's decision is set aside and the case is remanded for further proceedings consistent with this decision. The parties are to serve their discovery requests within twenty days of receipt of this order.