PABST BREWING COMPANY
OSHRC Docket No. 13068
Occupational Safety and Health Review Commission
January 17, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Regional Solicitor, USDOL
J. D. Fleming, Jr., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
A decision of Administrative Law Judge John J. Larkin is before us for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.). Judge Larkin granted Respondent's motion for summary judgment, thereby vacating the citation. The Judge also denied the Secretary's motion to compel a discovery inspection of Respondent's facility. For the reasons below, we reverse and remand.
Respondent was charged with a violation of 29 C.F.R. 1910.95(b)(1) in that it allegedly failed to use feasible engineering or administrative controls to protect employees who were exposed to noise levels exceeding these specified in Table G-16 of the standard. In answers to requests for admissions, the Secretary acknowledged that he could not presently prove that controls were available which would reduce noise to Table G-16 levels. n1 Based on this admission, Respondent moved for summary judgment, arguing that the Secretary [*2] had admitted that he could not sustain his burden of proof. Judge Larkin granted the motion, determining that the Secretary must prove that controls are available which will reduce noise to the Table G-16 limits in order to establish a violation of 1910.95(b)(1). This interpretation of the standard is contrary to Continental Can Co., Inc., No. 3973 et al., BNA 4 OSHC 1541, CCH OSHD para. 21,009 (Aug. 24, 1976), wherein the Commission held in a divided opinion that proof that controls will reduce noise to Table G-16 levels is not necessarily required in order to establish a violation of 1910.95(b)(1). Therefore, Judge Larkin erred in granting Respondent's motion; we accordingly reverse the Judge and remand the case for an evidentiary hearing.
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n1 As discussed infra, the Secretary seeks discovery which might yield additional evidence on this point.
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Judge Larkin also denied the Secretary's motion to compel a discovery inspection of Respondent's facility by his expert on the bases that the Secretary [*3] was seeking to remedy an insufficient initial inspection through a discovery inspection and that the motion was untimely. We reverse. At the outset we note that discovery inspections are ordinarily permissible under the circumstances shown here. Reynolds Metal Co., No. 4385, BNA 3 OSHC 1749, CCH OSHD para. 20,214 (1975). There, a divided Commission determined that under the Federal Rules of Civil Procedure which govern in the area, discovery is permitted even if the information sought could have been obtained by the Secretary at the initial inspection. We further hold that Judge Larkin erred in finding that the Secretary's discovery motion was untimely. In so holding, the Judge relied on the fact that the Secretary's motion was made on June 30, 1975, which was after the Judge had informally set the hearing date for July 17, 1975, and that to grant the motion would result in delaying the hearing. However, the hearing was not formally scheduled to be held until after the Secretary made his request for discovery. The estimated three- to six-week delay in a hearing which would have resulted from a discovery inspection is not inordinate, particularly in light of both parties' [*4] earlier request that the hearing be scheduled on or after September 8, 1975. Further, the Secretary's motion for discovery was made only approximately one month after receipt of Respondent's answer. During that month, the Secretary's counsel was on vacation for two weeks and was also engaged in answering Respondent's requests for admissions. Under these circumstances, we cannot say that the Secretary was dilatory in pursuing discovery or that his motion was untimely. Accordingly, the Secretary's motion to compel discovery is granted.
Accordingly, we remand the case for appropriate proceedings. It is so ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
Judge Larkin correctly disposed of this case, and his well-reasoned decision, attached hereto as Appendix A, should be affirmed.
Respondent is charged with a violation of the Act for failure to comply with the occupational safety and health standard codified at 29 C.F.R. § 1910.95(b)(1). To establish a violation of that standard, complainant must prove that feasible administrative or engineering controls existed at the time of the alleged violation which would have reduced employee exposure to noise to levels required by the standard. [*5] Secretary v. Reynolds Metals Company, OSAHRC Docket No. 4385, December 10, 1975 (concurring opinion). Moreover, a citation alleging such a violation must be vacated unless at the time of its issuance, complainant had a reasonable basis for determining that such controls did in fact exist. Secretary v. Reynolds Metals Company, supra. Clearly, this is not unduly burdensome because complainant's right of inspection n2 affords the opportunity to glean all necessary and relevant data prior to the issuance of a citation.
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n2 29 U.S.C. § 657.
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As I indicated in Reynolds Metals, when complainant seeks to remedy an inadequate inspection through discovery, such a motion must be denied. In that case, a remand was necessary because the record was silent as to whether complainant possessed probative evidence when the citation was issued that feasible controls existed to reduce the noise to required levels. Here, however, complainant has freely admitted that such evidence was lacking. Therefore, granting respondent's [*6] motion for summary judgment and vacating the citation was entirely proper.
Vacation of the citation is also appropriate for another reason. It is clear that complainant is unable to establish that respondent's employees were subjected to any occupational hazard.
Complainant has admitted that respondent's employees were wearing personal noise protection equipment at the time of the inspection and that he had no evidence that this equipment was ineffective. He also admitted that he does not contend that respondent's hearing conservation program is ineffective.
The only purpose of the Act is to protect employees from workplace hazards. 29 U.S.C. § 651(b). The gravamen of the charge against respondent is a violation of the Act - specifically 29 U.S.C. § 654(a)(2) - not a violation of 29 C.F.R. § 1910.95(b)(1). Thus, it is clear that such a charge cannot be affirmed unless there is proof that respondent's employees were subjected to an occupational hazard. In this case, complainant has admitted that he lacks that proof because he has no evidence that the personal protective equipment used by respondent's employees did not provide adequate protection from excessive noise.
When [*7] personal protective equipment adequately protects employees from impermissible noise levels, it is unjust and contrary to the purpose of the Act to require an employer to expend substantial funds to implement engineering controls. See Secretary v. Continental Can Company, OSAHRC Docket No. 3973, August 24, 1976. Secretary v. Turner Company, OSAHRC Docket No. 3635, August 24, 1976 (dissenting opinion). This law's objective is occupational safety and health - not occupational comfort and convenience.
Respondent correctly contends in its review brief that:
"Complainant argues that an employer should be required to use all available means of control, even though they are not able to meet G-16 limits, 'while more effective controls are developed.' (Petition for Discretionary Review, p. 10.) The economic waste of such an approach is obvious. If controls are developed which are capable of reducing the noise level to G-16 limits, the standard certainly requires that those controls be instituted. As a result, there can be no doubt that the development of such controls would require the removal and replacement of any controls instituted earlier which were not able to reduce [*8] sound levels to G-16 limits. Complainant thus evidently wishes to require employers to institute what are admittedly very costly control measures, even if they cannot meet G-16 limits, and then to discard those control measures when other controls capable of meeting G-16 limits are developed. (Petition for Discretionary Review, p. 10.) If any significant benefit could be achieved by that approach, it might be rational for complainant to revise his standards to require such action, though it still would be inappropriate for this Commission to yield to complainant's insistence that the Commission institute such an amendment under the guise of judicial construction. It is clear, however, that such a requirement would serve no purpose whatever."
* * *
"In this case, complainant admitted that respondent's employees were wearing individual hearing protectors, that he did not contend that respondent's hearing conservation program is inadequate, and that he had no evidence to indicate that the individual hearing protectors failed to reduce employee exposure to G-16 limits. (Complainant's Answers to Respondent's Requests for Admissions Nos. 1, 2, and 3.) Complainant thus cannot dispute [*9] respondent's contentions that its employees are adequately protected at present by individual hearing protectors. If complainant's view were accepted, therefore, and respondent were required to institute all existing methods of control, even though they cannot reduce the noise exposure to G-16 limits, respondent's employees would still be required to wear the hearing protectors which now effectively reduce their exposure to G-16 limits. Respondent thus would be required to institute controls which cannot avoid the necessity for hearing protectors and which would have to be discarded as soon as controls are developed which can meet G-16 limits. The installation of ineffective interim controls would thus be a useless act which should not be directed by this Commission, certainly not in the absence of a standard which requires such action."
The litigation should now be terminated to foreclose the possibility of these ridiculous results.
APPENDIX A
ORDER AND DECISION DENYING COMPLAINANT'S MOTION TO COMPEL DISCOVERY AND GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
Stephen J. Simko, Jr., Office of the Solicitor, U.S. Department of Labor, for complainant
J. D. Fleming, Jr., [*10] for respondent
LARKIN, JUDGE
At the hearing in the above matter on July 17, 1975, the Court denied complainant's motion to compel discovery and granted respondent's motion for summary judgment.
This case involved issues of first impression and justifies expedition because of its impact in numerous pending cases. The parties were requested to file proposed findings of fact and conclusions of law. As respondent's proposed findings of fact and conclusions of law most adequately sets forth the thinking expounded by me at the hearing on the motions, it is adapted in toto as my findings and conclusions of law on the motions involved.
This is a proceeding brought by complainant, Secretary of Labor, pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et. seq., (hereinafter the "Act") seeking the affirmance of a citation issued by complainant on April 7, 1975, which was based on an inspection made on March 12, 1975. The citation and complaint allege that respondent violated the noise standard set out in 29 CFR § 1910.95 (hereinafter the "standard") in its brewery located at Perry, Georgia. The description of the alleged violation set out in the citation [*11] is as follows:
"Failure to use feasible engineering or administrative controls to protect employees from exposure to hazardous noise levels exceeding those specified in 1910.95 Table G-16. Violations occurred in the Filling Room # III - West, Filling Room No. III, East, No. 2 Filling Room, No. 1 Filling Room, Machine Operators in Can Packaging Area, Uncaser and Rinser Operator, Label Machine Operators, H & K Packer Machine Operator, SK Gule Machine Operator, 3 West Uncaser & Rinser Operator and Bottle Pasteurizer Operator." Citation, paragraph 12.
The violation alleged in the citation thus consisted of respondent's claimed failure to employ feasible engineering or administrative controls to reduce the noise exposure in respondent's plant to levels permissible under Table G-16 (hereinafter "G-16 limits") of the standard.
The text of the standard, in pertinent part, is:
"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 [*12] levels of the table." 29 CFR § 1910.95(b)(1).
Respondent filed its notice of contest on April 22, 1975 Complainant filed his complaint on May 12, 1975. Respondent filed its answer on May 27, 1975. On May 28, 1975, respondent served a request for production under 29 CFR § 2200.2 and Fed. R. Civ. P. 34, and a request for admissions under 29 CFR § 2200.52. On June 17, 1975, the judge advised counsel informally that the final hearing would be held on July 17, 1975, if a hearing room could be obtained. On June 18, 1975, counsel for respondent notified the judge that respondent would be ready to proceed with the final hearing on July 17, 1975.
On June 30, 1975, following an extension of time, complainant answered respondent's request for admissions and also answered respondent's request for production. On the same day, complainant served respondent with a request under 29 CFR § 2200.2 and Fed. R. Civ. P. 34 to enter respondent's plant for a further inspection. On July 3, 1975, the judge and counsel for both parties held a telephone conference during which counsel for respondent stated that respondent would decline to permit complainant to re-enter the plant; counsel for complainant [*13] waived a formal response by respondent to complainant's request to enter; complainant's counsel stated that he would file a motion under Fed. R. Civ. P. 37 to compel the discovery sought; and the judge set a hearing on that motion for July 17, 1975, the time originally set for the final hearing.
On July 7, 1975, complainant filed his motion to compel discovery and respondent filed a motion for summary judgment based primarily on complainant's answers to respondent's request for admissions. The parties agreed that respondent's motion would be heard at the hearing on July 17, 1975. The parties submitted briefs on the two motions and a hearing was held in Perry, Georgia, on July 17, 1975. Respondent's employees and their authorized representative were duly notified of the hearing, but did not elect to participate.
1. Complainant's Motion to Compel Discovery.
Complainant contends that the sole criterion to be applied in passing on his motion to compel discovery is whether or not the information sought is relevant to the subject matter of the proceeding. Respondent contends that even if the information sought by complainant is relevant, complainant's discovery efforts are untimely [*14] and should be denied because they would unduly delay the final hearing. Moreover, respondent contends that the purpose of the discovery is not to provide evidence to supplement evidence of a violation obtained during the inspection on March 12, 1975, upon which the citation and complaint are based, but rather to substitute for a deficient initial inspection. Respondent's arguments are persuasive and complainant's motion is denied.
Complainant argues that a party may discover any information which is not privileged and which is relevant to the subject matter of the proceeding. Fed. R. Civ. P. 26(b)(1). While this premise is generally correct and is not contested by respondent, it addresses only the question of what information may be discovered and it does not purport to define other requirements, such as the timing of discovery. Discovery must be timely utilized and may be denied in the discretion of the judge, if it would delay the trial. This is particularly true when a party has made no effort to conduct discovery until the case is set for trial.
"The record shows that the defendant made no effort to employ discovery procedures until the cause had been set for trial. Under [*15] these circumstances, we find that there was no error by the District Judge in refusing to allow the defendant to take the depositions . . . ."
Price v. H. B. Green Transportation Line, 287 F.2d 363, 366 (7th Cir. 1961).
This principle has been affirmed in many ordinary civil actions. See, e.g., United States v. 412.93 Acres, 455 F.2d 1242, 1246 (3rd Cir. 1972); Rowald v. Cargo Carriers, Inc., 243 F. Supp. 629, 630 (E.D. Mo. 1965); McCullough v. Dairy Queen, Inc., 195 F. Supp. 918 (E.D. Pa. 1961). It is even more applicable in proceedings under the Occupational Safety and Health Act of 1970 than it is in ordinary civil litigation. Because the Act seeks to protect the safety and health of employees and because it places very heavy burdens on employers, both the public and the cited employer are entitled to a speedy resolution of any charge of a violation and all participants in proceedings under the Act are required to proceed diligently toward a final hearing. The regulations adopted by complainant and by the Review Commission are designed with that in mind. As an example, a hearing ordinarily cannot be postponed and no postponement in excess of 30 days can [*16] be allowed without Review Commission approval. 29 CFR § 2200.61. The objective of prompt resolution of charges brought under the Act would be frustrated by even such delays as are normally acceptable in ordinary civil litigation. Since discovery which would delay a trial is denied in civil cases, it is abundantly obvious that the judge has the discretionary power to deny such discovery in proceedings under the Act.
When the foregoing principle is applied to the facts of this case, it is apparent that complainant's motion to compel discovery should be denied. While respondent proceeded diligently and began its discovery on the day after it answered, complainant has been dilatory. He made no effort to conduct discovery for a month after respondent commenced discovery and sought no discovery until two weeks after counsel were informed of the date for the final hearing.
At the hearing on complainant's motion, counsel for complainant stated that three weeks would be required for complainant's expert to examine respondent's plant and complete a report of his findings. (Transcript, p. 27, line 16, through p. 28, line 7.) If complainant's motion should be granted, it would be unjust [*17] to deny respondent equal time to prepare to meet evidence developed through complainant's request at the eleventh hour. If complainant's motion should be granted, therefore, it is evident that the final hearing in this matter would be postponed for at least six weeks, and probably longer. Such a postponement certainly would be in opposition to the spirit of 29 CFR § 2200.61.
Denial of complainant's motion is warranted, in the exercise of this judge's discretion, because complainant made no effort to commence discovery until a month after discovery was begun by respondent; because complainant waited for two weeks after counsel were notified of the final hearing date to attempt discovery; and because granting complainant's motion would unduly postpone the final hearing.
Even it complainant's request to re-enter respondent's plant had been timely, there is an additional ground for denying that discovery. For the reasons set out below in in the portion of this order dealing with respondent's motion for summary judgment, it is clear that complainant's inspection on March 12, 1975, was insufficient to show a violation. The inspection now sought by complainant is thus not designed [*18] to discover evidence to support evidence of a violation obtained during the initial inspection. Instead, complainant seeks, under the guise of discovery, to remedy a fatally defective initial investigation. This should not be permitted.
There is a significant difference between information which a plaintiff may obtain from his adversary prior to suit in the normal civil case and the information to which complainant has access prior to the issuance of a citation under the Act. In civil cases, a plaintiff has no opportunity to compel entry upon a defendant's land prior to commencement of the suit. Fed. R. Civ. P. 34(b). Under Section 8 of the Act, however, complainant has the right to enter an employer's land at will and carry out any reasonable inspection which he desires. He may, and even must in most instances, conduct that inspection without any advance notice to the employer. 29 CFR § 1903.6. Unlike civil cases, therefore, proceedings under the Act furnish complainant with the full opportunity to gather whatever facts he desires from an inspection of the employer's premises without invoking any of the discovery procedures provided under the Federal Rules of Civil Procedures. [*19]
With the far reaching powers of inspection provided by the Act, there comes a correlative responsibility. Unlike the complaint in the normal civil action, which may be very simple and need not follow technical forms, Fed. R. Civ. P. 8, the citation issued under the Act is required to "describe with particularity the nature of the violation." Act, Section 9(a). In like manner, the complaint is required to set forth the violation with particularity, including the "time, location, place, and circumstances of each such alleged violation." 29 CFR § 2200.33(a)(2). The reason for this increased requirement of particularity in proceedings under the Act is apparent. Complainant is given virtually unlimited power to determine the facts fully before he initiates a proceeding, and the issuance of a citation brings on extremely serious consequences for the employer. For that reason, complainant should issue citations only upon careful deliberation and not on mere speculation and surmise and the initial inspection can and must be adequate to permit complainant to detail specifically what the employer should have done to avoid the citation. As the District of Columbia Circuit observed in [*20] commenting on the general duty clause of the Act:
"[V]iolations exist almost everywhere, and the Secretary has an awesomely broad discretion in selecting defendants and in proposing penalties. To assure that citations issue only upon careful "deliberation, the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures." National Realty and Construction Co. v. Occupational Safety and Health Review Commission, 489 F.2d 1257, 1268 (D.C. Cir. 1973).
This comment is equally applicable to charges of violations of the noise regulation. As this judge stated recently in Secretary of Labor v. Del Monte Corp., OSAHRC Docket No. 11865 (June 4, 1975):
"Certainly, under such far reaching provisions, Congress intended that an employer is entitled to receive proper initial notification and a notice in strict conformance with the particularity requirements of section 9(a) of the Act."
This requirement includes advising the employer specifically of what constitutes feasible administrative or engineering controls necessary to lower the noise levels to within the [*21] limits specified in Table G-16. Id.
It is apparent that complainant cannot meet these particularity requirements unless his initial inspection is sufficient to disclose not only noise exposure in excess of G-16 limits, but also feasible methods of control which complainant contends the employer should have utilized in order to avoid those noise levels. This is not to suggest, as complainant argued in this case, any responsibility to develop evidence during the initial inspection which proves beyond any doubt that specific effective controls were available. (Transcript, p. 29, line 16.) It requires nothing more than that the initial inspection be sufficient to disclose probative evidence that specific controls do exist and that they are capable of reducing noise exposure to G-16 limits. If the initial inspection does meet that requirement, complainant can and should state in his citation and complaint what those specific controls are and he may then, on proper application, have discovery under Fed. R. Civ. P. 34 to develop supporting evidence of feasible controls. If, however, complainant's initial inspection is inadequate to show that any such method of control exists, it [*22] would be burdensome and oppressive to subject the employer to re-inspection under Fed. R. Civ. P. 34 in order to cure a deficient inspection. Complainant may not elect to ignore the broad powers of inspection given to him by the Act and then misuse discovery procedures in a effort to uncover a violation after the citation and complaint are issued. To hold otherwise would encourage complainant to issue ill considered and groundless citations based on speculation, suspicion, and surmise.
Since the facts in this case show that complainant failed to conduct a proper initial investigation sufficient to identify feasible methods of control adequate to meet G-16 limits, and since it would be burdensome and oppressive to subject respondent to another inspection under the guise of discovery, justice requires that complainant's motion to compel discovery be denied in this judge's discretion. Fed. R. Civ. P. 26(c), 37(a)(2).
2. Respondent's Motion for Summary Judgment
Respondent contends that it is entitled to summary judgment because complainant has admitted that he cannot show the existence of feasible engineering or administrative controls which can reduce the noise exposure in [*23] respondent's plant to G-16 limits. Complainant denies that he is required to show that such controls will reduce noise exposure to the levels specified in Table G-16 and contends that he is only required to show some lesser level of noise reduction. Complainant's contention is without merit.
The violation alleged by complainant is that respondent failed to utilize feasible controls to avoid noise exposure in excess of G-16 limits. (Citation attached to Respondent's Exhibit C, paragraph 12; Complaint, paragraph IV A.) There is no allegation or evidence that respondent's employees were not provided with or not using hearing protectors. To the contrary, complainant admitted that protectors were worn (Respondent's Exhibits A and B, paragraphs 1) and that he does not contend that respondent's hearing conservation program is ineffective (Respondent's Exhibits A and B, paragraphs 2). In such circumstances, a number of decisions have held that complainant must prove that there are feasible administrative or engineering controls which can reduce the noise level to G-16 limits in order to show a violation of CFR § 1910.95(b)(1).
In Secretary of Labor v. Anchor Hocking Corp., OSHARC [*24] Docket No. 3783 (February 14, 1974), Judge Cronin said:
"This standard [29 CFR § 1910.95(b)(1)] is interpreted as requiring employers to utilize only those engineering and administrative controls which individually, or in combination, are capable of reducing noise exposure levels to the permissible limits set forth in Table G-16.
"The Secretary disagrees with this interpretation and contends that the standard also requires the use of feasible engineering and administrative controls even if the said controls would not reduce the noise levels to the permissible limits of Table G-16. We would point out, however, that the citation's charge that Respondent failed to utilize feasible engineering and administrative controls 'to the extent necessary' to reduce the existing sound level exposures to those of Table G-16, as well as the complaint's allegation of violation, appear in harmony with this interpretation.
"For the citation in this case to be affirmed, the secretary first must prove that there are engineering and/or administrative controls available for utilization which are capable of reducing noise exposure levels to those permitted by Table G-16. He was unable to satisfy [*25] this obligation." (Emphasis added).
The requirement that complainant show controls sufficient to reduce the noise to G-16 limits was also stated in Secretary of Labor v. Del Monte Corp., OSAHRC Docket No. 11865 (June 4, 1975); Secretary of Labor v. C.F.& I. Steel Corp., OSAHRC Docket No. 6027 (February 11, 1975); Secretary of Labor v. International Paper Co., OSAHRC Docket Nos. 4474-77, 4485, 4581-83, 12 OSAHRC 243 (October 10, 1974); and Secretary of Labor v. Hermitage Concrete Pipe Co., OSAHRC Docket No. 4678 (August 19, 1974). The C.F.& I. Steel and International Paper Co. cases are final orders of the Review Commission. While the other cited cases are in review, the unanimity of these holdings is persuasive. Complainant's contention is therefore rejected and it is held that, in order to show a violation of 29 CFR § 1910.95(b)(1), complainant must prove that feasible engineering or administrative controls, or a combination of the two, exist which are capable of reducing the noise exposure to the limits specified in Table G-16 of the standard. Respondent is thus entitled to a summary judgment if the undisputed facts show that complainant cannot meet [*26] this burden.
Respondent served complainant with a request for admissions. In paragraph 9, respondent requested complainant to admit the following fact:
"Complainant does not contend in this matter that there is any feasible administrative control which is known to be capable of reducing the sound exposure to or below levels permitted under Table G-16 at the following locations attempted to be described in Paragraph IV of the complaint:
"a. Filling Room No. I.
"b. Filling Room No. II.
"c. Filling Room No. III. - East and West.
"d. Machine Operators in the Can Packaging Area.
"e. Uncaser and Rinser Operator.
"f. Label Machine Operators.
"g. H & K Packer Machine Operator.
"h. SK Glue Machine Operator.
"i. No. 3 West Uncaser and Rinser Operator.
"j. Bottle Pasteurizer Operator." Respondent's Exhibit A, paragraph 9.
Complainant answered Request No. 9 as follows:
"He states that there are feasible administrative controls which when used with engineering controls, will substantially and meaningfully reduce levels of sound exposure in the locations listed in Request No. 9, a through j. At present he can neither truthfully admit or deny that these controls will reduce [*27] the sound exposure to or below the levels listed in Table G-16 for the reason that he has not conducted specific tests to determine whether these controls will reduce sound exposure at these locations to or below levels listed in Table G-16." Respondent's Exhibit B, paragraph 9 (emphasis added).
In paragraph 10 of respondent's request for admissions, respondent requested complainant to admit the following fact:
"Complainant does not contend in this matter that there is any feasible engineering control which is known to be capable of reducing the sound
"exposure to or below levels permitted under Table G-16 at the following locations attempted to described in paragraph IV of the complaint:
"a. Filling Room No. I.
"b. Filling Room No. II.
"c. Filling Room No. III. - East and West.
"d. Machine Operators in the Can Packaging Area.
"e. Uncaser and Rinser Operator.
"f. Label Machine Operators.
"g. H & K Packer Machine Operator.
"h. SK Glue Machine Operator
"i. No. 3 West Uncaser and Rinser Operator.
"j. Bottle Pasteruizer Operator." Respondent's Exhibit A, paragraph 9.
The foregoing requests for admissions and complainant's responses thereto show that complainant [*28] has admitted that he is not able to prove that any feasible administrative controls, engineering controls, or combination of the two exist which will reduce the sound exposure to or below the levels listed in Table G-16. Complainant did not offer any evidence at the hearing to detract from or counter his admissions. The admissions are therefore conclusive and there is no genuine issue as to any material fact. Complainant has admitted that he cannot carry his burden of proving controls which can reduce the noise exposure in respondent's plant to the limits set by Table G-16 of the standard. Respondent is thus entitled to judgment as a matter of law and respondent's motion for summary judgment must be granted.
3. Findings of Fact.
(1) Respondent moved diligently to commence and complete discovery.
(2) Complainant made no effort to conduct discovery until after counsel had been notified of the final hearing date.
(3) Complainant's effort to conduct discovery was untimely.
(4) Granting complainant's motion to compel discovery would delay the final hearing at least six weeks and probably more.
(5) The inspection of respondent's plant by complainant, upon which the citation [*29] was based, was inadequate to show whether or not feasible controls existed to reduce the noise exposure to the limits set out in Table G-16 of 29 CFR § 1910.95.
(6) Since complainant's initial inspection was deficient, it would be unjust and oppressive to subject respondent to a second inspection under the guise of discovery.
(7) Complainant admitted that he cannot prove, and offered no evidence to show, the existence of feasible engineering or administrative controls, or a combination of the two, which are capable of reducing the noise exposure in respondent's plant to the limits set out in Table G-16 of 29 CFR § 1910.95.
4. Conclusions of Law.
(1) A judge has the discretion to deny discovery which is not timely sought and which would unduly postpone a final hearing.
(2) A judge has the discretion to deny discovery which would be unjust and oppressive.
(3) In order to show a violation of 29 CFR § 1910.95(b)(1), complainant must prove that feasible engineering or administrative controls, or a combination of the two, exist which are capable of reducing the noise exposure to the limits set out in Table G-16.
(4) When complainant admits facts which show that he cannot carry [*30] the burden necessary to prove the violation charged in the citation, there is no genuine issue of material fact and respondent is entitled to judgment as a matter of law.
5. Decision.
By reason of the foregoing findings of fact and conclusions of law, it is ORDERED that complainant's motion to compel discovery is denied, respondent's motion for summary judgment is granted, and the citation issued against respondent on April 7, 1975, is vacated.
Dated this 25th day of August, 1975.
JOHN J. LARKIN, Judge, OSAHRC