“SECRETARY OF LABOR,Complainant,v.FALCON STEEL COMPANY, INC.,Respondent.OSHRC Docket Nos.89-2883 and 89-3444(consolidated)_ORDER_Respondent, Falcon Steel Company, Inc. (\”Falcon\”) has moved forreconsideration of the Commission’s Order of August 9, 1990 insofar asthat Order granted a partial stay of the hearing. Falcon’s motion isgranted, and the partial stay is vacated.The Commission also vacates that part of the aforesaid order grantingFalcon’s Petition for Interlocutory Review on the issue of whether adefense of economic infeasibility should be recognized in theseconsolidated cases. When it requested interlocutory review of theAdministrative Law Judge’s July 3, 1990 Order denying its motion tocompel discovery, Falcon represented that discovery was necessary inorder for it to prepare its defense that compliance with 29 C.F.R. ?1926.105(a) is economically infeasible in its industry. Since bothparties now indicate that they are prepared to proceed to hearing on the? 1926.105(a) allegations, there is no need for interlocutory review ofthe judge’s discovery order. For this reason, the importance of theissue raised in the petition and grant of interlocutory review hasdiminished, and this issue does not warrant resolution under theinterlocutory appeal process.Furthermore, we do not disturb the judge’s Order of July 3, 1990. Thejudge may proceed as he sees fit to achieve a just and expeditiousresolution of the issues contested in these cases.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: _August 13, 1990_————————————————————————SECRETARY OF LABOR,Complainant,v.FALCON STEEL CO., INC.,Respondent.OSHRC Docket Nos.89-2883 & 89-3444_ORDER_The Commission grants the Respondent’s Petition for InterlocutoryReview. In the Order Denying Respondent’s Motion to Compel Answers toCertain Interrogatories, Production of Certain Documents and Request fora Hearing on Motions, entered on July 3, 1990, Administrative Law JudgeMichael H. Schoenfeld held that Respondent could not assert the defenseof general industry-wide infeasibility based on economic considerationsand could not conduct discovery to obtain evidence relating to thatdefense. As a result of the Commission’s decision in _Dun-Par EngineeredForm Co., _12 BNA OSHC 1949, 1986-87 CCH OSHD ? 27,650 (No. 79-2553,1986), _rev’d on other grounds,_ 843 F.2d 1135 (8th Cir. 1988),employers are entitled to assert a defense of infeasibility ofcompliance with a cited standard in enforcement proceedings before theCommission. However, the Commission has not yet addressed the issue ofwhether an infeasibility defense may be based on economic, rather thantechnological, considerations. While the Commission has not held thatsuch a defense can be raised, there is appellate court authorityindicating that it is permissible for the defense of generalindustry-wide infeasibility based on economic considerations to beasserted in proceedings before the Commission. _United Steelworkers ofAmerica v. Marshall,_ 647 F.2d 1189, 1273 (D.C. Cir. 1980) _cert,__denied,_ 453 U.S. 913 (1981), _Atlantic & Gulf Stevedores, Inc. v.OSHRC,_ 534 F.2d 541, 550 (3rd Cir. 1976).Review is therefore granted on the following issue:Did the Administrative Law Judge err in ruling that the Respondentcannot defend against its alleged violation of 29 C.F.R. 1926.105(a) onthe ground that it is economically infeasible for employers in the steelerection industry (including the Respondent) to comply with thatstandard by installing perimeter safety nets on high-rise buildings?The Commission concludes that this issue is \”an important question oflaw or policy about which there is substantial ground for difference ofopinion and that immediate review of the ruling may materially expeditethe final disposition of the proceedings.\” Interlocutory review of thejudge’s ruling is therefore justified under 29 C.F.R. 2200.73(a)(1). Theparties are hereby notified that a briefing order will be issued underseparate cover pursuant to section 2200.73(f).The Respondent’s Motion for a Partial Stay in this proceeding is grantedin part and denied in part. The Commission grants a stay limited to thealleged violations of 29 C.F.R. 1926.105(a) (citation 2, item 2 indocket no. 89-2883 and citation 2, item 1 in docket no. 89-3444). TheCommission stays both discovery and the scheduled hearing to the extentthat they relate to these two citation items. Proceedings (including thehearing scheduled for August 13, 1990) are not stayed, however, withrespect to any other citation items that are at issue in these cases.Finally, the Commission grants the Respondent’s Motion for Leave toReply to Opposition to Petition for Interlocutory Review. TheRespondent’s Reply, which has already been filed with the Commission, ishereby accepted into the record.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: _August 9, 1990_————————————————————————ELIZABETH DOLE,SECRETARY OF LABOR,UNITED STATES DEPARTMENT OF LABOR,Complainant,v.FALCON STEEL COMPANY, INC.Respondent.OSHRC Docket Nos. 89-2883and 89-3444(Consolidated)_PETITION FOR INTERLOCUTORY REVIEW_Respondent, FALCON STEEL COMPANY, INC. (\”Falcon\”), respectfullypetitions for interlocutory review of the ruling issued byAdministrative Law Judge Michael H. Schoenfeld on July 3, 1990. Theruling is contained in an order entitled, \”Order Denying Respondent’sMotion. to Compel Answers to Certain Interrogatories, Production ofCertain Documents and Request for a Hearing on Motions.\” A copy of theOrder was supplied on July 9, 1990.Falcon has also filed a separate Motion for Partial Stay of Proceedings.The Motion asks that the hearing, now scheduled to begin on August 13,1990, be stayed until the issues raised by this Petition are resolved.Falcon does not ask, however, that the ongoing discovery be stayed.Falcon filed a statement of its corporate affiliations on July 9, 1990.That statement is incorporated into this petition by reference.I. _Summary of Falcon’s Petition _OSHA has alleged that Falcon violated 29 C.F.R. ? 1926.105 because itdid not erect perimeter nets during steel erection work on a 60- storyhigh-rise office building in Philadelphia, Pennsylvania. Falcon haspleaded that, if the standards are construed to impose this requirementin high-rise steel erection work, then compliance is infeasible, bothtechnologically and economically.Falcon had intended to show that compliance is economically infeasiblebecause the steel erection industry (including, of course, Falcon) willbe driven out of business if OSHA succeeds in forcing steel erectors touse perimeter nets. Falcon intended to show, among other things, thattechnological changes in concrete construction in the last ten tofifteen years have made concrete construction techniques closelycompetitive with steel erection techniques. How an owner decides betweenthem, Falcon will show, depends greatly on their costs. It is undisputedthat throughout the nation, steel erectors overwhelmingly have not usedperimeter nets for fall protection. Falcon intended to show thatcompliance with OSHA’s requirements relating to perimeter nets will addsignificantly to the cost of steel erection, especially given the delayin erection which deployment and redeployment of nets would create.Falcon also intended to show that if steel erectors are now required toadd these costs to their bids, high-rise steel will be priced out of themarket because owners will increasingly choose concrete as the erectionmethod.To support this defense, Falcon had sought to assemble factual materialthrough the discovery process, including information that OSHA hadgathered about the changing technology and competition in high-riseconstruction. While attempting to do so, Falcon was unexpectedly metwith a sweeping ruling from the Administrative Law Judge. The rulingholds that discovery will not be permitted because, in the Judge’sopinion, Falcon’s defense lacks merit as a matter of law. The Judge’sOrder states: \”General industry-wide infeasibility of compliance with anoccupational safety and health standard adopted as such pursuant tosection. 6(a) of the Occupational Safety and Health Act of 1970, 29U.S.C. ? 655(a), is not a valid defense to a citation.\”The Judge’s ruling is wrong.First, as will be shown below, the courts of appeals, including thecircuit to which this case is appealable, agree that economicinfeasibility is a defense, whether the standard is adopted underSection 6(a) or 6(b) or 6(b)(5). The reason is simple: OSHA has noauthority to adopt a standard that will drive an industry out ofbusiness._See United Steelworkers v. Marshall,_ 647 F.2d 1189, 1272(D.C. Cir. 1981).Second, the judge’s reasoning flies in the face of Commission precedent.The Judge reasoned that there is no economic infeasibility defense forSection 6(a) standards because Section 6(a) \”was, in effect, aCongressional adoption of those regulations . . . whether [they] fullymet the new definition of occupational safety and health standards insection 3(8) of the Act or not.\” Judge’s Order at 3. But this reasoningapplies equally to the technological aspect of infeasibility and theCommission has long permitted employers to raise that aspect as adefense. _E.g.,_ _Dun-Par Engineered Foam Co., _12 BNA OSHC 1949, 1956(No. 79-2553, 1986).Falcon does not seek interlocutory review merely to correct error. Thequestion raised by the Judge’s ruling in important. If the answer is notalready clear, it in worth answering clearly once and for all. Moreover,interlocutory review by the Commission will avoid an utter waste of thetime and resources of both Falcon and the Commission. A ruling favorableto Falcon will avoid a truncated and utterly pointless trial and anunnecessary retrial. As matters now stand, Falcon’s attempts tointroduce evidence of economic infeasibility would presumably berejected by the Judge as irrelevant. Falcon represents that thisevidence would likely include the testimony of several export witnesses.Then, if the Commission reverses the Judge on discretionary review andholds that the evidence is relevant because economic infeasibility is adefense, the case would have to be sent back to the Judge and retried atgreat expense to the Commission, the Secretary and Falcon. Onlyinterlocutory review will avoid this wasteful exercise and get this caseback onto the right track.Avoiding wasteful litigation is particularly important in this casebecause Falcon is a relatively small family-owned business whoseexistence is on the line. Although Falcon has tried to conserve itslimited resources to prepare for trial, the Judge’s ruling ensures thatthey will largely be wasted.Falcon appeals, under Commission Rule 2200.73(a), to the Commission’sdiscretion and asks that it grant interlocutory review of the Judge’sruling.II. _Background_1. Falcon was the steel erection contractor in the construction atLiberty Place, Phase II, a 58-story office building in Philadelphia,Pennsylvania.2. Item 1 of Citation 2 in Docket No. 89-3444 alleges that Falconviolated 29 C.F.R. 1926.105(a) because it did not erect safety nets toprotect against exterior falls. Item 2 of Citation No. 1 alleges thatFalcon violated ? 1926.105(c)(1) because it did not erect safety netseight feet beyond the perimeter of the building.3. Item 2 of Citation 2 in Docket No. 89-2883 similarly alleges thatFalcon violated 29 C.F.R. ? 1926.105(a) because employees at theperimeter of the building were not protected by safety nets or belts.4. Falcon’s Answer to the Complaints in both cases pleaded thatperimeter netting is infeasible. Falcon alleged that it would have beenboth technically and economically infeasible and impractical to haveprovided safety nets. The technical difficulties in installing and usingnets, in particular \”jumping\” the nets every two floors as erectionproceeds, coupled with the substantial cost of using nets, including theadditional cost resulting not only for the steel erection portion ofconstruction, but also for related construction activities on a project,make the use of exterior safety nets infeasible and impractical inhigh-rise steel erection such as was involved in the cited activity.Falcon also pleaded another aspect of economic infeasibility as a defense:Respondent asserts that in the instances cited as a violation of 29C.F.R. ? 1926.105(a) for failing to provide safety nets, the benefits ofproviding safety nets did not justify or outweigh the costs that wouldhave been involved, not was there even a reasonable relationship betweenthe costs and benefits of providing nets.5. On May 5, the parties jointly stated to the Judge that, \”Both casesinclude citations alleging willful violations of 29 C.F.R. ?1926.105(a), which raise the question whether in the absence of otherpractical means of providing fall protection to ironworkers in high-risesteel erection . . . Falcon was required to provide perimeter safetynets.\” Joint Motion for Consolidation and Suggestions for DiscoveryTimetable, paragraph 2, on page 2.6. On May 4, 1990, and on other occasions, Falcon answeredinterrogatories (written questions) posed by the Secretary regarding theevidence that it would introduce at the hearing. Falcon stated that itwould offer the testimony of several expert witnesses the subject of theeffect of the cost of perimeter net protection on the steel erection’sindustry share of the high-rise construction market.7. On May 11, 1990, Falcon served upon the Secretary interrogatories 12and 13. These interrogatories (written questions) asked the Secretary toidentify the most senior persons working at or for OSHA, subordinate tothe head of OSHA, responsible for new general fall protection and steelerection standards which OSHA is now developing. Falcon also moved thatthe persons whom the Secretary identified be deposed.8. The Secretary’s complete response to Falcon’s interrogatories was:Complainant objects to this interrogatory on the grounds of relevancy.See _Long Beach Container Terminal, Inc.,_ 811 F.2d 477, 479 (9th Cir.1987)._Long Beach Container_ holds that an OSHA staff employee’s view of themeaning of a standard is not the Secretary’s \”official view\” of thestandard. 811 F.2d at 479, 13 BRA OSHC at 110.9. Along with its interrogatories, Falcon also filed requests for theproduction of documents. Request Nos. 33 and 34 asked for copies ofdocuments relating to OSHA’s proposed fall protection and steel erectionrulemakings. Among the documents requested were those that explained whyOSHA had proposed in a new fall protection standard (proposed ? 1926.501(b) (2)) to protect workers constructing \”leading edges\” in concreteconstruction with a \”safety monitoring system\” rather than withperimeter safety nets, and documents that explained why OSHA stated inthe preamble to the proposal (51 Fed. Reg. 42721 (November 26, 1986)), that:OSHA also believes that a requirement to erect safety nets often is notfeasible because of insufficient room to rig a safety net and becausethe net would have to be constantly moved.The Secretary’s complete response to these requests was: \”TheComplainant objects to this request on the grounds of relevancy.\”10. Nowhere has the Secretary ever objected to these discovery requestson the ground that they sought privileged information or documents. Forexample, the Secretary did not assert — and therefore waived — anyso-called \”deliberative process\” privilege. By contrast, the Secretaryasserted the so-called \”deliberative process privilege\” with respect toother discovery requests. [[1\/]] Nor did the Secretary claim that thediscovery was \”unduly burdensome\” within the meaning of Commission Rule2200.52(c). By contrast, the Secretary had made this claim with respectto other discovery requests.[[2\/]]11. After receiving the Secretary’s \”relevancy\” objections, Falcon hadno choice but to file a motion to compel answers to its interrogatoriesand requests for production of the documents. In its motion andsupporting papers, Falcon explained why the Secretary’s \”relevancy\”objections lacked merit.First, the Commission’s rules do not require that information sought indiscovery be \”relevant\”. Commission Rule 2200.52(b) is much more liberalthan that. It permits discovery of information that is broadly relevantto the \”_subject matter_ involved in the pending case\” and makes eveninadmissible evidence discoverable if it \”appears reasonably calculatedto lead to discovery of admissible evidence . . . .\”Second, Falcon explained why the information it sought was relevant tothe subject matter of this case: Those who are conducting the steelerection and fall protection rulemakings for OSHA have evidence aboutthe feasibility of perimeter nets, including the economic effect of arequirement for perimeter nets upon the steel erection industry. Falconeven submitted an affidavit from one of the experts in structural steelerection expected to testify at trial stating why the requesteddocuments would be helpful to him in forming his opinion. Finally,Falcon explained that whether OSHA obtained this information in thecontext of a rulemaking is beside the point: \”If OSHA officials andconsultants have facts that could lead to the discovery of admissibleevidence about the infeasibility of nets, Falcon is entitled to theirevidence without regard to how it was gained.\” In response to theSecretary’s reliance on _Long Beach Terminal,_ Falcon pointed out thatit wanted to get facts that OSHA officials hold about the infeasibilityof using nets in steel erection, not necessarily their private opinionsabout what OSHA’s current standards mean.12. On July 3, 1990, the Judge denied Falcon’s attempts to discover whatOSHA knows about the infeasibility of perimeter nets. Understandably,the Judge did not find that OSHA had no information relevant to thesubject matter of Falcon’s defense. Instead, the Judge declared thatFalcon’s defense was invalid as a matter of law. The Judge adopted a newtheory, not suggested by the Secretary, that an employer may not assortan economic feasibility defense if the cited standard was adopted underSection 6(a) of the Act.Falcon now seeks interlocutory review of this ruling.III. _Discussion_The Judge’s Order raises a very important question of law or policy.Falcon will show that there is substantial ground for disagreement withthe Judge’s ruling and that immediate review of the ruling willmaterially expedite the final disposition of the proceedings.The important question of law or policy raised by the Order is: May anemployer defend against a citation on the ground that a standard adoptedunder Section 6(a) is infeasible as applied to his entire industry andthat he is typical of the entire industry?_Issues Not Presented By The Petition._ There are two issues that thisPetition does not present.First, this Petition does not discuss the issue of \”relevance\” becausethe Judge did not pass on that issue. The Judge did not find thatFaIcon’s discovery requests were not relevant to the economicinfeasibility of perimeter nets in steel erection work. The Judge heldonly that economic infeasibility is not a defense at all. Whethereconomic infeasibility is a defense is, therefore, the only issue thatFalcon seeks review of.Second, Falcon does not claim as error in this petition forinterlocutory review the Judge’s departure from the usual rule thatquestions of relevance for purposes of discovery are to judged from thestandpoint of relevance to the issues as pleaded, rather than the issuesas the Judge believes they should have been pleaded. See 4 Moore’sFederal Practice ? 25-56[1], pp. 26-99 to 26-100. Falcon does not raisethat issue at this time because correction of any error now wouldaccomplish little and would be wasteful. After such a correction, theSecretary would undoubtedly file a motion for partial judgment on thepleadings or a motion to strike the economic aspects of Falcon’sinfeasibility defense, or would object to Falcon’s attempts to introduceevidence on the point at the hearing. Given the Judge’s opinion on thesubstantive issue, the parties would then be back before the Commission,having accomplished little or nothing and having wanted their time andmoney and that of the Judge._Economic feasibility in enforcement proceedings_. Before Falcondiscusses the reason why this Petition should be granted, Falconpresents for the information of the Commission the following briefsynopsis of the role that economic infeasibility plays in enforcementproceedings under the Act:_Section 6(b) health standards:_ Economic infeasibility is a defense inan enforcement proceeding concerning a standard adopted under Section6(b)(5) of the Act, which covers toxic chemicals and harmful physicalagents. _United Steelworkers v. Marshall, _647 F.2d 1189, 1273 (D.C.Cir. 1980). The only question for standards adopted under this sectionhas been whether economic infeasibility includes cost-benefit analysis.The Supreme Court held that it does not. _American Textile ManufacturersInstitute v. Donovan,_ 452 U.S. 490, 509 (1981). All agree, however,that economic infeasibility does include claims that the standard woulddrive an industry out of business, _Steelworkers_, 647 F.2d at 1273,because OSHA has no power to adopt a standard that would cause thedemise of an entire industry because of, among other things,inter-industry competition. _Id. _at 1265. The court stated:First, we see nothing to prevent an employer from raising a defense inan enforcement proceeding that the standard has proved infeasible forall similar companies — not just his own. The alleged infeasibility maybe technological . . . . Or it might be economic, where the defendingfirm can use its own experience to prove that no employer could affordto meet the standard, _see_ _Atlantic & Gulf Stevedores v. OSHA__supra,_ 534 F.2d at 555, or prove that its own demise would wreck thecompetitive structure of the industry._Id_. at 1273._Section 6(b) safety standards:_ Economic infeasibility would appear tobe a defense in an enforcement proceeding concerning a safety standardadopted under Section 6(b)._See National Grain & Feed Association v.OSHA_, 866 F.2d 717, 728 (5th Cir. 1989). Unlike health standardsadopted under Section 6(b)(5), such an economic infeasibility defensewould include both cost-benefit analysis and whether the standard wouldthreaten an industry’s \”long-term profitability and competitiveness.\”Id. at 728, 738._Section 6(c) emergency temporary standards:_ The rule is apparently thesame as for Section 6(b) standards._Id._; _see also Asbestos InformationAss’n v. OSHA,_ 727 F.2d 415, 423 (5th Cir, 1984) (emergency temporarystandard \”must, on balance, produce a benefit the costs of which are notunreasonable.\”)._Section 6(a) standards using the word \”feasible\”:_ The Commission hasheld that the very nature of established federal standards requires thatany such standard using the word \”feasible\” be construed to incorporatecost-benefit analysis. _Sherwin-Williams Co.,_ 11 BNA OSHC 2105, 2110(No. 14131, 1984). Even those Commissioners most favorable to theSecretary’s arguments agreed that the use of the word \”feasible\” in thestandards at a minimum permitted employers to defend on the basis thatthey would be driven out of business. See the opinion of formerCommissioners Cleary and Cottine in _Sun Ship, Inc.,_ 11 BRA OSHC 1028,1032-1033 (No. 16118, 1982) (\”By analogy [from Section 6(b)(5),considerations of cost must also enter into whether [noise] controls arefeasible under section 1910.95(b)(1). Generally, [such] controls wouldbe economically infeasible if their cost would seriously jeopardize thecited employer’s long-term financial profitability andcompetitiveness.\”). The Secretary’s own position was the same. _SeeCastle & Cooke Foods,_ 5 BRA OSHC 1435 (No. 10925, 1977) (Secretaryargues that economics relevant under economic viability test), _aff’d,_692 F.2d 641 (9th Cir. 1982)._Section 6(c) emergency temporary standards: _The rule is apparently thesame as for Section 6(b) standards. _Id._; _see also AsbestosInformation Ass’n v. OSHA,_ 727 F. 2d 415, 423 (5th Cir. 1984)(emergency temporary standard \”must, on balance, produce a benefit thecosts of which are not unreasonable.\”)_Section 6(a) standards using the word \”feasible\”:_ The Commission hasheld that the very nature of established federal standards requires thatany such standard using the word \”feasible\” be construed to incorporatecost-benefit analysis._Sherwin-Williams Co., _11 BNA OSHC 2105, 2110(No. 14131, 1984). Even those Commissioners most favorable to theSecretary’s arguments agreed that the use of the word \”feasible\” in thestandards at a minimum permitted employers to defend on the basis thatthey would be driven out of business. See the opinion of formerCommissioners Cleary and Cottine in _Sun Ship, Inc.,_ 11 BNA OSHC 1028,1032-1033 (No. 16118, 1982) (\”By analogy [from Section 6(b)(5),considerations of cost must also enter into whether [noise] controls arefeasible under section 1910.95(b)(1). Generally, [such] controls wouldbe economically infeasible if their cost would seriously jeopardize thecited employer’s long-term financial profitability andcompetitiveness.\”). The Secretary’s own position was the same. _SeeCastle & Cooke Foods,_ 5 BNA OSHC 1435 (No. 10925, 1977) (Secretaryargues that economics relevant under economic viability test), _aff’d,_692 F. 2d 641 (9th Cir. 1982)._Section 6(a) standards not using the word \”feasible\”:_ The courts seemto agree that economic infeasibility is a defense to a Section 6(a)standard. _See Donovan v. Williams Enterprises_, 744 F.2d 170, 178 (D.C.Cir. 1984) (\”The impossibility (or infeasibility) defense encompassesboth technological and economic infeasibility\”); _Faultless Division,Bliss & Laughlin Industries, Inc. v. Secretary of Labor, _674 F.2d 1177,1189 (7th Cir. 1982) (financial imperilment constitutes defense ofeconomic infeasibility); _Southern Colorado Prestress Co. v. OSHRC, _586F.2d 1342, 1351 (10th Cir. 1978) (economic infeasibility a defense). TheCommission has held that the very nature of Section 6(a) standard allowsemployers to assert an infeasibility defense even it the standard doesnot use the word \”feasible\”. _See Dun-Par Engineered Form Co.,_ 12 BRAOSHC 1949 (No. 79-2553). _rev’d on another ground,_ 843 F.2d 1135 (8thCir. 1988). Moreover, Administrative law judges’ decisions available toFalcon at this time show that at least some Commission judges doentertain claims of economic infeasibility.[[3\/]]_Section 5(a)(1): _The Commission apparently considers economicfeasibility, including its cost-benefit aspects, when determiningwhether a proposed abatement method is feasible. _See United StatesSteel Co._,12 BNA OSHC 1692, 1701 (No. 79-1998, 1986) (quoted below).A. Whether Economic Infeasibility Is A Defense If the Cited Standard WasAdopted Under Section 6(a) Is An _Important Issue of Law or Policy_The overwhelming majority of all OSHA standards are still Section 6(a)standards. Whether and to what extent economic infeasibility is adefense to n prosecution under such a standard is, therefore, animportant question of law.In _Dun-Par Engineered Form Co., _12 BNA OSHC 1949 (No. 79-2553), _rev’don another ground,_ 843 F.2d 1135 (8th Cir. 1988), the Commission heldthat the very nature of standards adopted under Section 6(a) requiresthat there be an infeasibility defense. The Commission pointed out thatstandards such as 29 C.F.R. ? 1926.105 — that were first adopted asinterpretive regulations under the Construction Safety Act [[4\/]] or theWalsh-Healey Public Contracts Act [[5\/]] \”could not possibly have beenwritten with literal application in mind.\” 12 BNA OSHC at 1955.Therefore, the Commission held, employers are entitled to defend on theground that the application of a standard is infeasible.The Commission in _Dun-Par_ did not, however, have occasion to expresslydiscuss several important questions: Does the infeasibility defenseencompass economic infeasibility? If so, how are economic factors to betreated? Does the economic component consist solely of agoing-out-of-business element i.e., that a standard is so onerous thatit will drive the cited employer out of business? May the employer showthat the standard is so onerous that it will drive his entire industry– including, of course, him — out of business? Does it also encompassa rough cost-benefit sort of feasibility — i.e., that the costs imposedby a standard bear no reasonable relationship to its benefits?All of these questions are raised in this case. They are importantbecause their clear resolution by the Commission will affect nearlyevery claim of infeasibility. For example, a holding that an employermay defend on the ground of rough cost–benefit infeasibility — i.e.,that the costs of compliance bear no reasonable relationship to thebenefits — will clarify a question that has long bedeviled employers.More importantly, a Commission opinion that finally clarifies whether anemployer may defend on the ground that an OSHA requirement would drivehis industry out of business would be helpful indeed to industries –such as the high-rise steel erection industry — on the verge ofinviability. A Commission opinion on the issue would also exert asalutary influence on attempts by OSHA to prosecute such industries.Finally, employers should be informed once and for all of how theCommission will consider economic factors in determining infeasibility.Especially if the viability of an entire industry is threatened, theCommission’s case law should clearly indicate to its members what factsthey would have to present to save their businesses.The Commission has repeatedly and thoroughly examined the role ofeconomics in the interpretation of the word \”feasible\” in one Section6(a) standard (OSHA’s noise control standard, 29 C.F.R. ?1910.95(b)(1)). It did so because the role of economics in feasibilityunder that one Section 6(a) standard is important. The role of economicsis even more important here, for this case touches on the role ofeconomics in the application of all Section 6(a) standards.B. There Are Substantial Grounds for A Difference of _Opinion With the Administrative Law Judge_Although the Commission has not yet had occasion to speak directly tothese important questions, the answer should nevertheless be clear. Inother contexts in which the Commission has been called upon to interpretthe term \”feasible\”, the Commission has held or strongly implied thatfeasibility has an economic component. For example, the Commission heldin _Sherwin- Williams Co.,_ 11 BNA OSHC 2105, 2110 (No. 14131, 1984),that the very nature of established federal standards adopted undersection 6(a) required that the term \”feasible\” be construed to encompassboth economic and technological feasibility. In _United States SteelCo.,_ 12 BNA OSHC 1692, 1701 (No. 79-1998, 1986), the Commissionconstrued the term \”feasible\” as it has been used in cases arising underthe general duty clause, Section 5(a)(1) of the Act, 29 U.S.C. ?654(a)(1), in the same way it construed the word in _Sherwin-Williams_– to permit a showing of economic infeasibility by the employer.[[6\/]]Moreover, the federal courts of appeals also agree that an employer maydefend on economic feasibility grounds. _See Donovan v. WilliamsEnterprises, _744 F.2d 170 (D.C. Cir. 1984) (\”The impossibility (orinfeasibility) defense encompasses both technological and economicinfeasibility\”);_Faultless Division, Bliss & Laughlin Industries, Inc.v. Secretary of Labor_ 674 F.2d 1177, 1189 (7th Cir. 1982) (financialimperilment constitutes defense of economic infeasibility); _SouthernColorado Prestress Co. v OSHRC, _586 F.2d 1342, 1351 (10th Cir. 1978)(economic infeasibility a defense).The opposite conclusion in the Judge’s Order seems to have been based ontwo incorrect foundations.The Judge first stated that the requirement that established federalstandards be adopted under Section 6(a) was in effect a \”Congressionaladoption of those regulations . . . whether [they] fully met the newdefinition of occupational safety and health standards in section 3(8)of the Act, or not.\” The Judge’s reasoning leads to an absurdity. if thecongressional adoption means that no economic infeasibility defense canbe made, it would with equal illogic lead to the conclusion that noteven a technological infeasibility defense exists. Moreover, theCommission and the courts quite evidently disagree with the Judge’stheory that the definition of an \”occupational safety and healthstandard\” in Section 3(8) does not apply to a Section 6(a) standard. Thecourts and the Commission have hold that Section 6(a) standards usingthe word \”hazard\” must be construed to apply the \”significant risk\” testthat the Supreme Court derived from Section 3(8)._See Kastalon, Inc.,_12 BNA OSHC 1928, 1937 (No. 79-3561, 1986) (citing cases), applying toa Section 6(a) standard the \”significant risk\” test extracted fromSection 3(8) by the Supreme Court in _Industrial Union Department v.American Petroleum Institute,_ 448 U.S. 607, 642, 8 BNA OSHC 1586, 1598(1980). [[7\/]] Resolving the issue would, in any event, address animportant issue of law or policy, for it would resolve whether Section6(a) standards — the standards adopted with the least forethought andscrutiny of any OSHA standards — are not subject to the minimalrequirements that all other OSHA safety standards are subject to. _SeeNational Grain & Feed Association v. OSHA,_ 866 F.2d 717, 728 (5th Cir.1989) (Section 6(b) safety standards and 6(c) emergency temporarystandards are constrained by Section 3(8); health standards areconstrained by Section 6(b)(5)’s own economic feasibility requirement).The Judge’s second basis in equally fallacious. The Judge held that theindustry-wide infeasibility test adopted by the D.C. Circuit in _UnitedSteelworkers v. Marshall,_ 647 F.2d 1189 (D.C. Cir. 1980), was based onthe feasibility language in Section 6(b)(5) and is, therefore, notapplicable to standards adopted under Section 6(a). First, thisoverlooks that there are other sources for an infeasibility defense. TheCommission in _Dun-Par_ derived the infeasibility defense from the verynature of Section 6(a) standards. Second, the Commission and the courtsagree that Section 6(b)(5) feasibility concepts are relevant to Section6(a) standards. In_Dun-Par,_ the Commission stated that \”One court hasinferred from section 6(b)(5) that all OSHA standards are implicitlyconstrained by the feasibility requirement.\” 12 BNA OSHC at 1955(emphasis added), _citing A.F.L.C.I.O. v. Brennan,_ 530 F.2d 109, 121, 3BNA OSHC 1820, 1828 (3d Cir. 1975), and_Atlantic & Gulf Stevedores, Inc.v. OSHRC, _534 F.2d 541, 549-550, 551-552 & n. 13, 4 BNA OSHC 1061 (3dCir. 1976) (Commission may consider whether Section 6(a) establishedfederal standard is invalid as economically infeasible) [[8\/]]The above discussion makes clear that the Judge has placed himself inconflict with case law from both the Commission and the federalappellate courts. He has, moreover apparently placed himself in conflictwith at least some of his follow Administrative Law Judges, two of whomhave without reservation considered a defense of economicinfeasibility.[[9\/]]There is, therefore, a need for the Commission to state its view on thisimportant issue with clarity and authority.C. _Interlocutory Review May Materially Expedite. The Final __ Disposition of the __Proceeding_According to Commission Rule 2200.73(a), Falcon need not show thatimmediate review will materially expedite the final disposition of thisCase; Falcon need show only that it \”may\”do so. Nevertheless, there canbe little doubt that interlocutory review will speed up the resolutionof this case.A ruling favorable to Falcon will avoid a truncated and utterlypointless trial and an unnecessary retrial. As matters now stand,Falcon’s attempts to introduce evidence of economic infeasibility wouldpresumably be rejected by the Judge as irrelevant. Falcon representsthat this evidence would likely include the testimony of several expertwitnesses. Then, if the Commission reverses the Judge on discretionaryreview and holds that the evidence is relevant because economicinfeasibility is a defense, the case would have to be remanded andretried at great expense to the Commission, the Secretary, and Falcon –a relatively small family-owned business.[[10\/]]If, on the other hand, interlocutory review is granted, a remand andretrial can be avoided. Moreover, Falcon respectfully suggests that afavorable ruling by the Commission on the legal issue might perhapspromote the prospects for an amicable settlement and thus make any trialunnecessary.Accordingly, interlocutory review should be granted.Respectfully submitted,Robert C. GombarStephen C. Yohay, Esq.Arthur G. Sapper, Esq.JONES, DAY, REAVIS & POGUECOUNSEL FOR FALCON STEELCOMPANY, INC.7191s————————————————————————SECRETARY OF LABOR,Complainant,v.FALCON STEEL COMPANY, INC.,Respondent.Docket Nos.: 89-2883and 89-3444(Consolidated)_ORDER DENYING RESPONDENT’S MOTION TO COMPEL__ANSWERS TO CERTAIN INTERROGATORIES, PRODUCTIONOf CERTAIN DOCUMENTS AND REQUEST FOR A HEARING ON MOTIONS _I BackgroundOn June 9, 1990, Respondent, Falcon Steel Company, Inc. (\”Falcon\”),moved for an order compelling the Complainant, Secretary of Labor(\”Secretary\”), to respond to certain interrogatories and to producecertain documents. In addition, Falcon requested leave to depose certainindividuals and for a hearing on its motions.Falcon served its First interrogatories and Document request in No.89-3444 on May 11, 1990. The Secretary’s objections were received byFalcon on May 24, 1990. Falcon filed its notion to compel on June 5,1990. The Secretary filed a response to the motion to compel on June 25,1990. On the same day, Respondent filed a supplement to its notion andon June 26, 1990, filed a reply to the Secretary’s response. A telephoneconference was held on June 29, 1990, resulting, inter alia, in an orderbeing issued on that date granting leave to the Secretary to file asupplement to the June 25, 1990, response to the motion. All of thepleadings have now been considered.Falcon’s interrogatories number 12 and 13, respectively, requested thatthe Secretary identify certain OSHA personnel responsible for thepending proposed revisions of Subparts M and R, of 29 C.F.R., Part 1926.Similarly, Falcon’s requests number 33 and 34 of its request forproduction of documents sought, respectively, all documents relating toOSHA’s proposed rulemaking for Safety Standards for Fall Protection inthe Construction Industry and OSHA’s plan to propose revisions toSubpart R of 29 C.F.R., Part 1926.Accompanying its Motion to Compel, Falcon also seeks leave underCommission Rule 56, 29 C. F. R. ? 2200.56 (1988), [[1]] to depose thetwo individuals to be identified in the Secretary’s responses tointerrogatories number 12 and 13; a representative of the contractor whoprepared an economic analysis of the proposed revisions to thestructural steel erection standards; and a representative of OSHAknowledgeable about the agency’s proposals and plans regarding standardsaffecting the steel and concrete construction industries. [[2]]By objecting to the discovery requests, responding to the Motion toCompel, and objecting to the request for leave to depose certainpersons, the Secretary has placed in issue the propriety of thoserequests. The Secretary’s stated objections to the requests are based onthe argument that the materials sought are not relevant.II Propriety of Falcon’s Discovery Requests.Falcon, quite clearly states in its June 8, 1990,motion to compel thatit \”intends to prove in this case that 29 C.F.R. ? 1926.105(a)is_generally_ infeasible for the high-rise steel erection industry.\”(Emphasis in original.)General industry-wide infeasibility of compliance with an occupationalsafety and health standard adopted of such pursuant to section 6(a) ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ? 655(a), isnot a valid defense to a citation.It follows that evidence relating to that proposition is not relevantand would not be admissible in this enforcement proceeding. Thus,Falcon’s motion to compel, as to the objected to discovery requests[[3]] is not reasonably calculated to lead to the discovery ofadmissible evidence. The Secretary’s objections on the grounds of\”relevancy\” are sustained.The standard allegedly violated by Falcon, 29 C.F.R. ? 1926.105(a)(1989), is a standard adopted by OSHA under section 6(a) of the Act. Asthe Commission pointed out in _Dun-Par Engineered Form Co., 12 BNA OSHC_1949, 1953 (No. 79-2553, 1986),_rev’d on other grounds,_ 843 F.2d 1135(8th Cir. 1988), Congress, with some exceptions not relevant here,required the Secretary to adopt national consensus standards andestablished federal standards as occupational safety and healthstandards quickly and without the public notice, comment and rulemakingprovided for by section 6(b) of the Act, 29 U.S.C. ? 655(b). TheCongressional mandate to adopt pre- existing regulations while bypassingthe rulemaking procedures of section 6(b) of the Act was, in effect, aCongressional adoption of those regulations as occupational safety andhealth standards whether the pre-existing regulations fully met the newdefinition of occupational safety and health standards in section 3(8)of the Act, or not.Even if Falcon is correct in maintaining that section 3(8) of the Actincorporates some sort of feasibility test for the validity of a safetystandard similar to that imposed by section 6(b)(5) of the Act for theadoption of standards dealing with toxic materials, such a test is notapplicable to standards adopted under section 6(a) of the Act.The formulations by courts of tests for economic feasibility such as_United Steelworkers of America v., Marshall,_ 647 F.2d 1199 (D.C. Cir.1980) (\”Steelworkers\”), contemplated their application in section6(b)(5) standards cases. Indeed, the Steelworkers court consideredsection 6(b)(5) of the Act to be \”the source of the feasibilityrequirement.\” 647 F.2d at 1270, n. 119. Moreover, the Steelworkers courtcontemplated that such \”general infeasibility\” would be demonstratedthrough an employers \”particular circumstances.\”_Id._Finally, Falcon reviews in some detail OSHA’s current rule makingactivity with regard to the high-rise steel and concrete constructionindustries. OSHA is in the process of rulemaking regarding fallprotection for concrete construction and has announced that it is aboutto commence another rulemaking regarding fall protection in steelerection. Public hearings to to the proposed rulemaking for concreteconstruction have been held and the rulemaking record in closed. Inanticipation of public rulemaking proceedings OSHA has circulated tointerested parties an informal draft of its proposal regarding steelerection. Falcon has a copy of this draft.The pending proposals regarding fall protection in both concreteconstruction and steel erection are presently undergoing the notice,comment and public rulemaking procedures required by section 6(b) of theAct. These activities are providing the opportunity for interestedparties to make a record as to industry wide economic feasibility ofcompliance as envisioned by many of the court decisions. Thus, to thedegree that Falcon claims that it is generally infeasible for the steelerection industry to erect safety nets, the proper forum lies in therulemaking proceedings.Accordingly, Falcon’s motion to compel the Secretary to answerinterrogatories 12 & 13 and to compel the Secretary to produce thedocuments requested in its requests 33 & 34 is DENIED.Inasmuch as Falcon’s request for leave to depose individuals involvedwith the ongoing rule-making activities having nothing to do withconditions at the cited work site, it too is DENIED.III Falcon’s Request for Files Relating to Other ContractorsAs in Docket No. 89-2883, Falcon requests the Secretary to produce herfiles relating to citations issued to other contractors on the job sitein question here. For the reasons set forth in the order of May 30,1990, Falcon’s request has not been shown to be reasonably calculated tolead to the discovery of admissible evidence.Accordingly, Falcon’s motion to compel the Secretary to produce thedocuments requested in its request 12 is DENIED.IV Falcon’s Request for a Hearing on the MotionsIn light of the above dispositions, development of a factual record atthis stage of the proceedings is unnecessary. Accordingly, Falcon’srequest for a hearing relating to discovery matters is DENIED.Michael H. SchoenfeldJudge, OSHRCDated: July 3, 1990Washington, D.C.————————————————————————FOOTNOTES:[[1\/]] See, e.g., Complainant’s Response to Respondent’s Request forProduction of Documents in No. 89-2883, served April 24, 1990, regardingRequest Nos. 1, 11 and 14 (claiming deliberative process privilege).[[2\/]] See, e.g., Complainant’s Objection to Respondent’s Request forProduction of Documents in No. 89-3444, served May 24, 1990, withrespect to Request No. 29.[[3\/]] _See Williams Enterprises, Inc.,_ 1989 Lexis 70 (No. 88-619)(Chief Judge Tenney) (discussion and findings on \”economicfeasibility\”); _Williams Enterprises, Inc., _1989 Lexis 75 (No. 87-1871)(Deputy Chief Judge Sommer) (similar).[[4\/]] Formally known as the Contract Work Hours and Safety StandardsAct, 40 U.S.C. ? 327 _et_ _seq._[[5\/]] 41 U.S.C.?? 35-45.[[6\/]] In _U.S. Steel, _the Commission stated:Although it might seem to us that shutting down \”K\” vessel mightsubstantially interfere with U.S. Steel’s operations, U.S. Steel made noattempt to rebut the Secretary’s evidence or to show. that it waseconomically infeasible to interrupt casts in order to remove the water,or to shut \”K\” vessel down until the water was removed. _SeeSherwin-Williams Co., ._ . . .[[7\/]] _See also Anoplate Corp.,_ 12 BNA OSHC 1678, 1681 (No. 80-4109,1986) (to same effect).[[8\/]] The Judge also refers obliquely to the statement in_Steelworkers_ that an economic infeasibility defense would bedemonstrated through an employer’s \”particular circumstances\”. Theimplication is that Falcon will not attempt to prove anything about itsown particular circumstances. Falcon never said that it would notattempt to introduce evidence about its own circumstances. On thecontrary, Falcon expects to show that the industry-wide infeasibility ofperimeter nets applies equally well to it, for it is a typical member ofthat industry. Second, nothing in _Steelworkers_ says that economicinfeasibility can be proven _only_ in the ways the court outlined.[[9\/]] See Williams Enterprises, Inc., 1989 Lexis 70 (No. 88-619) (ChiefJudge Tenney) (discussion and findings on \”economic feasibility\”);Williams Enterprises, Inc., 1989 Lexis 75 (No. 87-1871) (Deputy ChiefJudge Sommer) (similar).[[10\/]] It is worth noting that the Commission has long favored allowingan employer to introduce evidence supporting a claim or impossibility orinfeasibility so that the merits of the legal argument can be evaluatedon the basis of a developed factual record. _See W.C. Sivers,_ 1 BNAOSHC 1074 (No. 239, 1972) (impossibility not yet held to be a defense;Commission would give employer \”the opportunity to present the[impossibility] defense without venturing any opinion at this timeconcerning the completeness of the defense, if established under the Act.\”).[[1]] Rules of Procedure of the Occupational Safety and Health ReviewCommission, 29 C.F.R. ? 2200.1- .212 (1988), as amended, 55 Fed. Reg.22780 83 (June 4, 1990) (\”Rules\”).[[2]] Falcon’s interrogatories 12 & 13, requests 33 and 34 forproduction of documents, and requests for leave to take depositions maybe referred to as the \”objected to discovery requests.\” Other portionsof the motion to compel have been withdrawn. Similarly, the Secretaryhas withdrawn her argument that the motion to compel was untimely filed.See, order of June 29, 1990. Falcon’s request for leave to takedepositions has not been challenged as untimely.[[3]] See footnote 3, supra.”