UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

November 13, 1985

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Commission on Judge Foster Furcolo’s certification of interlocutory appeal. The issue presented is whether the judge properly denied the Secretary of Labor’s motion to make a discovery inspection of FMC’s plant.1 We set aside the judge’s order and grant the Secretary’s motion for discovery conditioned on the Secretary reimbursing FMC for the reasonable costs the company incurs as a result of the discovery inspection. We remand for further proceedings consistent with this order.

This case involves a citation alleging that FMC violated section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq., in that the company “failed to prevent or control exposure to a potential methyl isocyanate uncontrolled reaction.”2FMC uses methyl isocyanate, often called “MIC,” in the manufacture of the pesticide Furadan. The Secretary conducted a number of inspections of FMC’s plant in Middleport, New York, between December 18, 1984 and February 13, 1985. The citation now in dispute resulted from that series of inspections and was issued on February 15, 1985. On March 5, 1985, FMC filed its notice of contest to the citation and on March 25 and 26, 1985, and May 9–11, 1985, the Secretary conducted additional inspections.3 On March 24, 1985, the Secretary filed his complaint in this proceeding, and thereafter, on May 29, 1985, he conducted another inspection. According to affidavits submitted by FMC, eight of the Secretary’s representatives visited the Middleport plant during the period covered by these inspections and spent a total of over 170 man-hours there. The Secretary also brought in personnel from his Atlanta and New York City offices because of their expertise in dealing with MIC. FMC fully cooperated with the Secretary’s investigation, permitting inspections at the Secretary’s request, as well as compiling and providing documentation and other information about its MIC operations. The present controversy was triggered by the Secretary’s request on August 27, 1985, to conduct still another inspection of FMC’s plant. FMC refused to voluntarily permit the inspection on the grounds that it had already been subjected to numerous inspections; that the Secretary had had adequate opportunity to substantiate the alleged citation; and that an additional inspection would be unduly burdensome on FMC. The Secretary moved the administrative law judge to compel the discovery inspection and FMC opposed the Secretary’s motion. The administrative law judge denied the Secretary’s motion to compel and the matter was then certified to us on interlocutory appeal.

In support of his motion for a discovery inspection, the Secretary states that he needs an additional inspection by his expert witnesses to “confirm his belief” that feasible means exist to control exposure to an uncontrolled MIC reaction. He further states that the feasibility issue is an extremely complicated one requiring that experts review FMC’s operation. In opposing the motion, FMC points to the heavy burden it has already incurred in permitting the Secretary to inspect its workplace and in furnishing information to the Secretary, and contends that there is no justification for the Secretary to conduct yet another inspection. The judge relied on the large number of inspections the Secretary already had conducted of FMC’s plant as his basis for denying the motion.

The Commission has stressed that its judges have wide discretion in deciding whether to permit discovery.

The decision whether to allow discovery is within the judge’s sound discretion. This sound discretion should be guided by the objective of providing a fair and prompt hearing to the parties. Moreover, the judge should consider the need of the moving party for the information sought, and undue burden to the party from whom discovery is sought, and, on balance, any undue delay in the proceedings that may occur.

Del Monte Corp., 81 OSAHRC 78/A2, 9 BNA OSHC 2136, 2142, 1981 CCH OSHD ¶ 25,586, p. 31,915 (No. 11865, 1981). Under normal circumstances, we would be hard-pressed to say that the judge abused his discretion in denying the Secretary’s discovery motion. That the Secretary had visited FMC’s plant on many prior occasions, that FMC had fully cooperated in the Secretary’s investigation, and that the judge was permitting discovery by other means, all lessen the need for the Secretary to obtain discovery through yet another inspection. Moreover, the judge could properly take into account the burden the past inspections had placed on FMC in determining whether the burden of an additional inspection was justified.

However, this is a most unusual case. The Secretary represents that the consequences could be catastrophic if an uncontrolled release of MIC were to occur. The Secretary alleges that FMC failed to take sufficient precautions to prevent such release and he asserts that the issue presented is so complex that he must conduct this additional discovery inspection. We have serious reservations as to the Secretary’s need for additional access to FMC’s plant in view of the numerous opportunities he had already received to gain information about FMC’s operations. However, in view of the potential seriousness of this particular case, we will set aside the judge’s ruling and grant the Secretary’s motion to compel a discovery inspection, conditioned on the Secretary’s payment of the reasonable costs incurred by FMC as a result of the inspection.

The Federal Rules of Civil Procedure give a tribunal wide discretion in fashioning discovery orders to prevent undue burden and expense to a party. Rule 26(c) provides:

Rule 26. General Provisions Governing Discovery.

(c) PROTECTIVE ORDERS. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from ... undue burden or expense....

Congress has required the Commission to follow the Federal Rules of Civil Procedure to the extent that the Commission has not adopted a different rule. See section 12(g) of the Act, 29 U.S.C. § 661(f). Because the Commission has no rule governing protective orders in discovery, Rule 26(c) applies and authorizes the Commission to “make any order which justice requires to protect a party ... from ... undue burden or expense....” See also Fed.R.Civ.P. 26(b)(1). FMC argues that it has already been subjected to considerable expense and that it should be protected from the additional expense that this discovery inspection will impose. We treat FMC’s objections as a request for a protective order, and agree that FMC has already been considerably burdened by the Secretary’s inspections. Under Rule 26 this is a factor that must be considered in ruling on the Secretary’s motion to compel another discovery inspection. We conclude, however, that the undue burden and expense to FMC can be adequately alleviated by requiring the Secretary to reimburse the company for the reasonable costs it incurs as a result of the discovery inspection. Accordingly, we condition the granting of the Secretary’s motion on his reimbursement to FMC of its reasonable costs that result from the inspection. We contemplate that these costs would include at a minimum the lost time of FMC personnel who must necessarily participate in the additional inspection. Ideally the parties will be able to execute an agreement on a reimbursement formula so that the inspection may be conducted expeditiously. If the parties cannot agree on a reimbursement formula, the judge shall establish one.

Accordingly, the judge’s order is set aside and the Secretary’s motion for a discovery inspection is granted subject to the condition that he reimburse FMC for its reasonable costs that result from the inspection. The case is remanded for further proceedings consistent with this opinion.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

November 13, 1985

BUCKLEY, Chairman, dissenting:

I would affirm the judge’s ruling denying the Secretary’s motion for a discovery inspection. In my opinion, that ruling was well within the judge’s sound discretion.

The Secretary issued the citation in this case after a thorough investigation of FMC’s procedures for storing and handling MIC. However, there was no MIC in the plant during the investigation because FMC’s supplier had temporarily discontinued production. After the citation was issued, FMC began to receive supplies of MIC and resumed the production process in which it used MIC as a raw material. The Secretary’s inspectors again entered the plant on several occasions and observed FMC’s MIC operations.

As the lead opinion points out, the judge must consider various factors in deciding whether to permit discovery, including the need of the moving party for the information sought, any undue burden to the party from whom discovery is sought, and any undue delay in the proceedings which may occur. See N.L. Industries, Inc., 84 OSAHRC , 11 BNA OSHC 2156, 2159, 1984 CCH OSHD ¶ 26,997, p. 34,728 (No. 78–5204, 1984). The judge has the duty to keep discovery within reasonable bounds. Id. When a party has already had considerable opportunity to obtain information from the opposing party, the judge can expect a specific and detailed explanation as to why further discovery is needed. In this case, the Secretary already had considerable opportunity to learn about FMC’s use of MIC, including opportunities to inspect FMC’s plant on a number of occasions both before and after the citation was issued. The Secretary offered little reason for needing a further discovery inspection, saying only that he wanted to confirm his belief that feasible means exist to control exposure to an uncontrolled MIC reaction. As the feasibility of a means of reducing or eliminating the hazard is a necessary element of a 5(a)(1) violation, this says no more than that the Secretary wanted to confirm his belief that a violation occurred. Under these circumstances, it was clearly within the judge’s discretion to deny the motion.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ORDER ON SETTLEMENT AGREEMENT

The parties filed a Settlement Agreement on or about March 25, 1987. The motions and amendments therein are allowed. The Settlement Agreement has been considered and is approved.

FOSTER FURCOLO

Judge, OSHRC

April 8, 1987

Boston, Massachusetts

1 In an associated ruling, the judge permitted the Secretary to obtain discovery by deposition. That ruling is not before us. The judge also certified for interlocutory appeal his ruling denying FMC’s motion to dismiss. We decline the judge’s certification of that issue because it appears that there may be some fact questions to be resolved by the administrative law judge. Commission Rule of Procedure 75(b)(2), 29 C.F.R. § 2200.75(b)(2).

2 Methyl isocyanate is a highly toxic chemical. The widely-publicized disaster in Bhopal, India occurred when MIC was accidentally released into the atmosphere. Following that disaster, the Secretary conducted a series of inspections of plants in the United States that handled MIC in an attempt to prevent any similar disaster from occurring.

3 During the first series of inspections, the Furadan manufacturing operation was shut down, and there was no MIC in the plant. The second series of inspections was conducted after Furadan production had resumed.