“Docket No. 89-2883_89-3444 SECRETARY OF LABOR,Complainant,v.FALCON STEEL COMPANY, INC., Respondent.OSHRC Docket Nos. 89-2883 and 89-3444 (consolidated)ORDERRespondent, Falcon Steel Company, Inc. (\”Falcon\”) has moved for reconsiderationof the Commission’s Order of August 9, 1990 insofar as that Order granted a partial stayof the hearing. Falcon’s motion is granted, and the partial stay is vacated.The Commission also vacates that part of the aforesaid ordergranting Falcon’s Petition for Interlocutory Review on the issue of whether a defense ofeconomic infeasibility should be recognized in these consolidated cases. When it requestedinterlocutory review of the Administrative Law Judge’s July 3, 1990 Order denying itsmotion to compel discovery, Falcon represented that discovery was necessary in order forit to prepare its defense that compliance with 29 C.F.R. ? 1926.105(a) is economicallyinfeasible in its industry. Since both parties now indicate that they are prepared toproceed to hearing on the ? 1926.105(a) allegations, there is no need for interlocutoryreview of the judge’s discovery order. For this reason, the importance of the issue raisedin the petition and grant of interlocutory review has diminished, and this issue does notwarrant resolution under the interlocutory appeal process. Furthermore, we do not disturb the judge’s Order of July 3,1990. The judge may proceed as he sees fit to achieve a just and expeditious resolution ofthe issues contested in these cases.Edwin G. Foulke, Jr. ChairmanVelma Montoya CommissionerDonald G. WisemanCommissionerDated: August 13, 1990SECRETARY OF LABOR, Complainant, v.FALCON STEEL CO., INC., Respondent.OSHRC Docket Nos. 89-2883 & 89-3444ORDERThe Commission grants the Respondent’s Petition forInterlocutory Review. In the Order Denying Respondent’s Motion to Compel Answers toCertain Interrogatories, Production of Certain Documents and Request for a Hearing onMotions, entered on July 3, 1990, Administrative Law Judge Michael H. Schoenfeld held thatRespondent could not assert the defense of general industry-wide infeasibility based oneconomic considerations and could not conduct discovery to obtain evidence relating tothat defense. As a result of the Commission’s decision in Dun-Par Engineered Form Co., 12BNA 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 infeasibilityof compliance with a cited standard in enforcement proceedings before the Commission.However, the Commission has not yet addressed the issue of whether an infeasibilitydefense may be based on economic, rather than technological, considerations. While theCommission has not held that such a defense can be raised, there is appellate courtauthority indicating that it is permissible for the defense of general industry-wideinfeasibility based on economic considerations to be asserted in proceedings before theCommission. United Steelworkers of America v. Marshall, 647 F.2d 1189, 1273 (D.C.Cir. 1980) cert, denied, 453 U.S. 913 (1981), Atlantic & GulfStevedores, 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 theRespondent cannot defend against its alleged violation of 29 C.F.R. 1926.105(a) on theground that it is economically infeasible for employers in the steel erection industry(including the Respondent) to comply with that standard by installing perimeter safetynets on high-rise buildings?The Commission concludes that this issue is \”an importantquestion of law or policy about which there is substantial ground for difference ofopinion and that immediate review of the ruling may materially expedite the finaldisposition of the proceedings.\” Interlocutory review of the judge’s ruling istherefore justified under 29 C.F.R. 2200.73(a)(1). The parties are hereby notified that abriefing order will be issued under separate cover pursuant to section 2200.73(f).The Respondent’s Motion for a Partial Stay in this proceedingis granted in part and denied in part. The Commission grants a stay limited to the allegedviolations of 29 C.F.R. 1926.105(a) (citation 2, item 2 in docket no. 89-2883 and citation2, item 1 in docket no. 89-3444). The Commission stays both discovery and the scheduledhearing to the extent that they relate to these two citation items. Proceedings (includingthe hearing scheduled for August 13, 1990) are not stayed, however, with respect to anyother citation items that are at issue in these cases.Finally, the Commission grants the Respondent’s Motion forLeave to Reply to Opposition to Petition for Interlocutory Review. The Respondent’s Reply,which has already been filed with the Commission, is hereby accepted into the record.Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. WisemanCommissioner Dated:\u00a0\u00a0 August 9, 1990ELIZABETH DOLE,SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Complainant, v. FALCON STEEL COMPANY, INC. Respondent.OSHRC Docket Nos. 89-2883 and 89-3444 (Consolidated)PETITION FOR INTERLOCUTORY REVIEWRespondent, FALCON STEEL COMPANY, INC. (\”Falcon\”),respectfully petitions for interlocutory review of the ruling issued by Administrative LawJudge Michael H. Schoenfeld on July 3, 1990. The ruling is contained in an order entitled,\”Order Denying Respondent’s Motion. to Compel Answers to Certain Interrogatories,Production of Certain 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 ofProceedings. 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 July9, 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. ? 1926.105because it did not erect perimeter nets during steel erection work on a 60- storyhigh-rise office building in Philadelphia, Pennsylvania. Falcon has pleaded that, if thestandards are construed to impose this requirement in high-rise steel erection work, thencompliance is infeasible, both technologically and economically.Falcon had intended to show that compliance is economicallyinfeasible because the steel erection industry (including, of course, Falcon) will bedriven out of business if OSHA succeeds in forcing steel erectors to use perimeter nets.Falcon intended to show, among other things, that technological changes in concreteconstruction in the last ten to fifteen years have made concrete construction techniquesclosely competitive with steel erection techniques. How an owner decides between them,Falcon will show, depends greatly on their costs. It is undisputed that throughout thenation, steel erectors overwhelmingly have not used perimeter nets for fall protection.Falcon intended to show that compliance with OSHA’s requirements relating to perimeternets will add significantly to the cost of steel erection, especially given the delay inerection which deployment and redeployment of nets would create. Falcon also intended toshow that if steel erectors are now required to add these costs to their bids, high-risesteel will be priced out of the market because owners will increasingly choose concrete asthe erection method.To support this defense, Falcon had sought to assemble factual material through thediscovery process, including information that OSHA had gathered about the changingtechnology and competition in high-rise construction. While attempting to do so, Falconwas unexpectedly met with a sweeping ruling from the Administrative Law Judge. The rulingholds that discovery will not be permitted because, in the Judge’s opinion, Falcon’sdefense lacks merit as a matter of law. The Judge’s Order states: \”Generalindustry-wide infeasibility of compliance with an occupational safety and health standardadopted as such pursuant to section. 6(a) of the Occupational Safety and Health Act of1970, 29 U.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, includingthe circuit to which this case is appealable, agree that economic infeasibility is adefense, whether the standard is adopted under Section 6(a) or 6(b) or 6(b)(5). The reasonis simple: OSHA has no authority 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 Commissionprecedent. The Judge reasoned that there is no economic infeasibility defense for Section6(a) standards because Section 6(a) \”was, in effect, a Congressional adoption ofthose regulations . . . whether [they] fully met the new definition of occupational safetyand health standards in section 3(8) of the Act or not.\” Judge’s Order at 3. But thisreasoning applies equally to the technological aspect of infeasibility and the Commissionhas long permitted employers to raise that aspect as a defense. E.g., Dun-ParEngineered Foam Co., 12 BNA OSHC 1949, 1956 (No. 79-2553, 1986).Falcon does not seek interlocutory review merely to correcterror. The question raised by the Judge’s ruling in important. If the answer is notalready clear, it in worth answering clearly once and for all. Moreover, interlocutoryreview by the Commission will avoid an utter waste of the time and resources of bothFalcon and the Commission. A ruling favorable to Falcon will avoid a truncated and utterlypointless trial and an unnecessary retrial. As matters now stand, Falcon’s attempts tointroduce evidence of economic infeasibility would presumably be rejected by the Judge asirrelevant. Falcon represents that this evidence would likely include the testimony ofseveral export witnesses. Then, if the Commission reverses the Judge on discretionaryreview and holds that the evidence is relevant because economic infeasibility is adefense, the case would have to be sent back to the Judge and retried at great expense tothe Commission, the Secretary and Falcon. Only interlocutory review will avoid thiswasteful exercise and get this case back onto the right track.Avoiding wasteful litigation is particularly important in thiscase because Falcon is a relatively small family-owned business whose existence is on theline. Although Falcon has tried to conserve its limited resources to prepare for trial,the Judge’s ruling ensures that they will largely be wasted.Falcon appeals, under Commission Rule 2200.73(a), to theCommission’s discretion and asks that it grant interlocutory review of the Judge’s ruling.II. Background1. Falcon was the steel erection contractor in the constructionat Liberty Place, Phase II, a 58-story office building in Philadelphia, Pennsylvania.2. Item 1 of Citation 2 in Docket No. 89-3444 alleges thatFalcon violated 29 C.F.R. 1926.105(a) because it did not erect safety nets to protectagainst exterior falls. Item 2 of Citation No. 1 alleges that Falcon violated ?1926.105(c)(1) because it did not erect safety nets eight feet beyond the perimeter of thebuilding.3. Item 2 of Citation 2 in Docket No. 89-2883 similarly allegesthat Falcon violated 29 C.F.R. ? 1926.105(a) because employees at the perimeter of thebuilding 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 been both technically and economically infeasible and impractical tohave provided safety nets. The technical difficulties in installing and using nets, inparticular \”jumping\” the nets every two floors as erection proceeds, coupledwith the substantial cost of using nets, including the additional cost resulting not onlyfor the steel erection portion of construction, but also for related constructionactivities on a project, make the use of exterior safety nets infeasible and impracticalin high-rise steel erection such as was involved in the cited activity.Falcon also pleaded another aspect of economic infeasibility asa defense:Respondent asserts that in the instances cited as a violationof 29 C.F.R. ? 1926.105(a) for failing to provide safety nets, the benefits of providingsafety nets did not justify or outweigh the costs that would have been involved, not wasthere even a reasonable relationship between the costs and benefits of providing nets.5. On May 5, the parties jointly stated to the Judge that,\”Both cases include citations alleging willful violations of 29 C.F.R. ?1926.105(a), which raise the question whether in the absence of other practical means ofproviding fall protection to ironworkers in high-rise steel erection . . . Falcon wasrequired to provide perimeter safety nets.\” Joint Motion for Consolidation andSuggestions for Discovery Timetable, paragraph 2, on page 2.6. On May 4, 1990, and on other occasions, Falcon answeredinterrogatories (written questions) posed by the Secretary regarding the evidence that itwould introduce at the hearing. Falcon stated that it would offer the testimony of severalexpert witnesses the subject of the effect of the cost of perimeter net protection on thesteel erection’s industry share of the high-rise construction market.7. On May 11, 1990, Falcon served upon the Secretaryinterrogatories 12 and 13. These interrogatories (written questions) asked the Secretaryto identify the most senior persons working at or for OSHA, subordinate to the head ofOSHA, responsible for new general fall protection and steel erection standards which OSHAis now developing. Falcon also moved that the persons whom the Secretary identified bedeposed.8. The Secretary’s complete response to Falcon’sinterrogatories was:Complainant objects to this interrogatory on the grounds ofrelevancy. See Long Beach Container Terminal, Inc., 811 F.2d 477, 479 (9th Cir.1987).Long Beach Container holds that an OSHA staff employee’sview of the meaning 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 requestsfor the production of documents. Request Nos. 33 and 34 asked for copies of documentsrelating to OSHA’s proposed fall protection and steel erection rulemakings. Among thedocuments requested were those that explained why OSHA had proposed in a new fallprotection standard (proposed ? 1926.501 (b) (2)) to protect workers constructing\”leading edges\” in concrete construction with a \”safety monitoringsystem\” rather than with perimeter safety nets, and documents that explained why OSHAstated in the preamble to the proposal (51 Fed. Reg. 42721 (November 26, 1986)), that:OSHA also believes that a requirement to erect safety netsoften is not feasible because of insufficient room to rig a safety net and because the netwould have to be constantly moved.The Secretary’s complete response to these requests was:\”The Complainant objects to this request on the grounds of relevancy.\”10. Nowhere has the Secretary ever objected to these discoveryrequests on the ground that they sought privileged information or documents. For example,the Secretary did not assert — and therefore waived — any so-called \”deliberativeprocess\” privilege. By contrast, the Secretary asserted the so-called\”deliberative process privilege\” with respect to other discovery requests.[[1\/]] Nor did the Secretary claim that the discovery was \”unduly burdensome\”within the meaning of Commission Rule 2200.52(c). By contrast, the Secretary had made thisclaim with respect to other discovery requests.[[2\/]] 11. After receiving the Secretary’s \”relevancy\” objections, Falcon had no choicebut to file a motion to compel answers to its interrogatories and requests for productionof the documents. In its motion and supporting papers, Falcon explained why theSecretary’s \”relevancy\” objections lacked merit.First, the Commission’s rules do not require that informationsought in discovery be \”relevant\”. Commission Rule 2200.52(b) is much moreliberal than that. It permits discovery of information that is broadly relevant to the\”subject matter involved in the pending case\” and makes even inadmissibleevidence discoverable if it \”appears reasonably calculated to lead to discovery ofadmissible evidence . . . .\”Second, Falcon explained why the information it sought wasrelevant to the subject matter of this case: Those who are conducting the steel erectionand fall protection rulemakings for OSHA have evidence about the feasibility of perimeternets, including the economic effect of a requirement for perimeter nets upon the steelerection industry. Falcon even submitted an affidavit from one of the experts instructural steel erection expected to testify at trial stating why the requested documentswould be helpful to him in forming his opinion. Finally, Falcon explained that whetherOSHA obtained this information in the context of a rulemaking is beside the point:\”If OSHA officials and consultants have facts that could lead to the discovery ofadmissible evidence about the infeasibility of nets, Falcon is entitled to their evidencewithout regard to how it was gained.\” In response to the Secretary’s reliance on LongBeach Terminal, Falcon pointed out that it wanted to get facts that OSHA officialshold about the infeasibility of using nets in steel erection, not necessarily theirprivate opinions about what OSHA’s current standards mean.12. On July 3, 1990, the Judge denied Falcon’s attempts todiscover what OSHA knows about the infeasibility of perimeter nets. Understandably, theJudge did not find that OSHA had no information relevant to the subject matter of Falcon’sdefense. Instead, the Judge declared that Falcon’s defense was invalid as a matter of law.The Judge adopted a new theory, not suggested by the Secretary, that an employer may notassort an economic feasibility defense if the cited standard was adopted under Section6(a) of the Act.Falcon now seeks interlocutory review of this ruling.III. DiscussionThe Judge’s Order raises a very important question of law orpolicy. Falcon will show that there is substantial ground for disagreement with theJudge’s ruling and that immediate review of the ruling will materially expedite the finaldisposition of the proceedings.The important question of law or policy raised by the Order is:May an employer defend against a citation on the ground that a standard adopted underSection 6(a) is infeasible as applied to his entire industry and that he is typical of theentire industry?Issues Not Presented By The Petition. There are twoissues that this Petition does not present.First, this Petition does not discuss the issue of\”relevance\” because the Judge did not pass on that issue. The Judge did not findthat FaIcon’s discovery requests were not relevant to the economic infeasibility ofperimeter nets in steel erection work. The Judge held only that economic infeasibility isnot a defense at all. Whether economic infeasibility is a defense is, therefore, the onlyissue that Falcon seeks review of.Second, Falcon does not claim as error in this petition forinterlocutory review the Judge’s departure from the usual rule that questions of relevancefor purposes of discovery are to judged from the standpoint of relevance to the issues aspleaded, rather than the issues as the Judge believes they should have been pleaded. See 4Moore’s Federal Practice ? 25-56[1], pp. 26-99 to 26-100. Falcon does not raise thatissue at this time because correction of any error now would accomplish little and wouldbe wasteful. After such a correction, the Secretary would undoubtedly file a motion forpartial judgment on the pleadings or a motion to strike the economic aspects of Falcon’sinfeasibility defense, or would object to Falcon’s attempts to introduce evidence on thepoint at the hearing. Given the Judge’s opinion on the substantive issue, the partieswould then be back before the Commission, having accomplished little or nothing and havingwanted their time and money and that of the Judge.Economic feasibility in enforcement proceedings. BeforeFalcon discusses the reason why this Petition should be granted, Falcon presents for theinformation of the Commission the following brief synopsis of the role that economicinfeasibility plays in enforcement proceedings under the Act:Section 6(b) health standards: Economic infeasibility is a defense in anenforcement proceeding concerning a standard adopted under Section 6(b)(5) of the Act,which covers toxic chemicals and harmful physical agents. United Steelworkers v.Marshall, 647 F.2d 1189, 1273 (D.C. Cir. 1980). The only question for standardsadopted under this section has been whether economic infeasibility includes cost-benefitanalysis.The Supreme Court held that it does not. American Textile Manufacturers Institute v.Donovan, 452 U.S. 490, 509 (1981). All agree, however, that economic infeasibilitydoes include claims that the standard would drive 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 adefense in an enforcement proceeding that the standard has proved infeasible for allsimilar companies — not just his own. The alleged infeasibility may be technological . .. . Or it might be economic, where the defending firm can use its own experience to provethat no employer could afford to meet the standard, see Atlantic & GulfStevedores v. OSHA supra, 534 F.2d at 555, or prove that its own demise wouldwreck the competitive structure of the industry.Id. at 1273.Section 6(b) safety standards:\u00a0 Economicinfeasibility would appear to be a defense in an enforcement proceeding concerning asafety standard adopted under Section 6(b). See National Grain & Feed Associationv. OSHA, 866 F.2d 717, 728 (5th Cir. 1989). Unlike health standards adopted underSection 6(b)(5), such an economic infeasibility defense would include both cost-benefitanalysis and whether the standard would threaten an industry’s \”long-termprofitability and competitiveness.\” Id. at 728, 738.Section 6(c) emergency temporary standards: The rule is apparently the same as forSection 6(b) standards. Id.; see also Asbestos Information Ass’n v. OSHA,727 F.2d 415, 423 (5th Cir, 1984) (emergency temporary standard \”must, on balance,produce a benefit the costs of which are not unreasonable.\”).Section 6(a) standards using the word \”feasible\”:The Commission has held that the very nature of established federal standards requiresthat any 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 the Secretary’s arguments agreed thatthe use of the word \”feasible\” in the standards at a minimum permitted employersto defend on the basis that they would be driven out of business. See the opinion offormer Commissioners Cleary and Cottine in Sun Ship, Inc., 11 BRA OSHC 1028,1032-1033 (No. 16118, 1982) (\”By analogy [from Section 6(b)(5), considerations ofcost must also enter into whether [noise] controls are feasible under section1910.95(b)(1). Generally, [such] controls would be economically infeasible if their costwould seriously jeopardize the cited employer’s long-term financial profitability andcompetitiveness.\”). The Secretary’s own position was the same. See Castle &Cooke Foods, 5 BRA OSHC 1435 (No. 10925, 1977) (Secretary argues that economicsrelevant under economic viability test), aff’d, 692 F.2d 641 (9th Cir. 1982).Section 6(c) emergency temporary standards: The rule isapparently the same as for Section 6(b) standards.\u00a0 Id.; see also AsbestosInformation Ass’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 has held that the very nature of established federal standards requiresthat any such standard using the word \”feasible\” be construed to incorporatecost-benefit analysis. Sherwin-Williams Co., 11 BNA OSHC 2105, 2110 (No. 14131,1984).\u00a0 Even those Commissioners most favorable to the Secretary’s arguments agreedthat the use of the word \”feasible\” in the standards at a minimum permittedemployers to defend on the basis that they would be driven out of business.\u00a0 See theopinion of former Commissioners Cleary and Cottine in Sun Ship, Inc., 11 BNA OSHC1028, 1032-1033 (No. 16118, 1982) (\”By analogy [from Section 6(b)(5), considerationsof cost must also enter into whether [noise] controls are feasible under section1910.95(b)(1).\u00a0 Generally, [such] controls would be economically infeasible if theircost would seriously jeopardize the cited employer’s long-term financial profitability andcompetitiveness.\”).\u00a0 The Secretary’s own position was the same.\u00a0 SeeCastle & Cooke Foods, 5 BNA OSHC 1435 (No. 10925, 1977) (Secretary argues thateconomics 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 seem to agree that economic infeasibility is adefense to a Section 6(a) standard. See Donovan v. Williams Enterprises, 744 F.2d170, 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 of economic infeasibility); SouthernColorado Prestress Co. v. OSHRC, 586 F.2d 1342, 1351 (10th Cir. 1978) (economicinfeasibility a defense). The Commission has held that the very nature of Section 6(a)standard allows employers to assert an infeasibility defense even it the standard does notuse the word \”feasible\”. See Dun-Par Engineered Form Co., 12 BRA OSHC1949 (No. 79-2553). rev’d on another ground, 843 F.2d 1135 (8th Cir. 1988).Moreover, Administrative law judges’ decisions available to Falcon at this time show thatat least some Commission judges do entertain claims of economic infeasibility.[[3\/]]Section 5(a)(1): The Commission apparently considerseconomic feasibility, including its cost-benefit aspects, when determining whether aproposed abatement method is feasible. See United States Steel Co.,12 BNA OSHC1692, 1701 (No. 79-1998, 1986) (quoted below).A. Whether Economic Infeasibility Is A Defense If the CitedStandard Was Adopted Under Section 6(a) Is An Important Issue of Law or PolicyThe overwhelming majority of all OSHA standards are stillSection 6(a) standards. Whether and to what extent economic infeasibility is a defense ton prosecution under such a standard is, therefore, an important question of law.In Dun-Par Engineered Form Co., 12 BNA OSHC 1949 (No.79-2553), rev’d on another ground, 843 F.2d 1135 (8th Cir. 1988), the Commissionheld that the very nature of standards adopted under Section 6(a) requires that there bean infeasibility defense. The Commission pointed out that standards such as 29 C.F.R. ?1926.105 — that were first adopted as interpretive regulations under the ConstructionSafety Act [[4\/]] or the Walsh-Healey Public Contracts Act [[5\/]] \”could not possiblyhave been written with literal application in mind.\” 12 BNA OSHC at 1955. Therefore,the Commission held, employers are entitled to defend on the ground that the applicationof a standard is infeasible.The Commission in Dun-Par did not, however, have occasion to expressly discussseveral important questions: Does the infeasibility defense encompass economicinfeasibility? If so, how are economic factors to be treated? Does the economic componentconsist solely of a going-out-of-business element i.e., that a standard is so onerous thatit will drive the cited employer out of business? May the employer show that the standardis so onerous that it will drive his entire industry — including, of course, him — outof business? Does it also encompass a rough cost-benefit sort of feasibility — i.e., thatthe costs imposed by a standard bear no reasonable relationship to its benefits?All of these questions are raised in this case. They areimportant because their clear resolution by the Commission will affect nearly every claimof infeasibility. For example, a holding that an employer may defend on the ground ofrough cost–benefit infeasibility — i.e., that the costs of compliance bear no reasonablerelationship to the benefits — will clarify a question that has long bedeviled employers.More importantly, a Commission opinion that finally clarifies whether an employer maydefend on the ground that an OSHA requirement would drive his industry out of businesswould be helpful indeed to industries — such as the high-rise steel erection industry –on the verge of inviability. A Commission opinion on the issue would also exert a salutaryinfluence on attempts by OSHA to prosecute such industries. Finally, employers should beinformed once and for all of how the Commission will consider economic factors indetermining infeasibility. Especially if the viability of an entire industry isthreatened, the Commission’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 roleof economics in the interpretation of the word \”feasible\” in one Section 6(a)standard (OSHA’s noise control standard, 29 C.F.R. ? 1910.95(b)(1)). It did so becausethe role of economics in feasibility under that one Section 6(a) standard is important.The role of economics is 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\u00a0\u00a0\u00a0\u00a0 Opinion With the Administrative Law JudgeAlthough the Commission has not yet had occasion to speak directly to these importantquestions, the answer should nevertheless be clear. In other contexts in which theCommission has been called upon to interpret the term \”feasible\”, the Commissionhas held or strongly implied that feasibility has an economic component. For example, theCommission held in Sherwin- Williams Co., 11 BNA OSHC 2105, 2110 (No. 14131, 1984),that the very nature of established federal standards adopted under section 6(a) requiredthat the term \”feasible\” be construed to encompass both economic andtechnological feasibility. In United States Steel Co., 12 BNA OSHC 1692, 1701 (No.79-1998, 1986), the Commission construed the term \”feasible\” as it has been usedin cases arising under the 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 ashowing of economic infeasibility by the employer.[[6\/]]Moreover, the federal courts of appeals also agree that anemployer may defend on economic feasibility grounds. See Donovan v. WilliamsEnterprises, 744 F.2d 170 (D.C. Cir. 1984) (\”The impossibility (or infeasibility)defense encompasses both technological and economic infeasibility\”); FaultlessDivision, Bliss & Laughlin Industries, Inc. v. Secretary of Labor 674 F.2d 1177,1189 (7th Cir. 1982) (financial imperilment constitutes defense of economicinfeasibility); Southern Colorado Prestress Co. v OSHRC, 586 F.2d 1342, 1351 (10thCir. 1978) (economic infeasibility a defense).The opposite conclusion in the Judge’s Order seems to have beenbased on two incorrect foundations.The Judge first stated that the requirement that establishedfederal standards be adopted under Section 6(a) was in effect a \”Congressionaladoption of those regulations . . . whether [they] fully met the new definition ofoccupational safety and health standards in section 3(8) of the Act, or not.\” TheJudge’s reasoning leads to an absurdity. if the congressional adoption means that noeconomic infeasibility defense can be made, it would with equal illogic lead to theconclusion that not even a technological infeasibility defense exists. Moreover, theCommission and the courts quite evidently disagree with the Judge’s theory that thedefinition of an \”occupational safety and health standard\” in Section 3(8) doesnot apply to a Section 6(a) standard. The courts and the Commission have hold that Section6(a) standards using the word \”hazard\” must be construed to apply the\”significant risk\” test that the Supreme Court derived from Section 3(8). SeeKastalon, Inc., 12 BNA OSHC 1928, 1937 (No. 79-3561, 1986) (citing cases), applying toa Section 6(a) standard the \”significant risk\” test extracted from Section 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 anyevent, address an important issue of law or policy, for it would resolve whether Section6(a) standards — the standards adopted with the least forethought and scrutiny of anyOSHA standards — are not subject to the minimal requirements that all other OSHA safetystandards are subject to. See National Grain & Feed Association v. OSHA, 866F.2d 717, 728 (5th Cir. 1989) (Section 6(b) safety standards and 6(c) emergency temporarystandards are constrained by Section 3(8); health standards are constrained by Section6(b)(5)’s own economic feasibility requirement).The Judge’s second basis in equally fallacious. The Judge heldthat the industry-wide infeasibility test adopted by the D.C. Circuit in UnitedSteelworkers v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980), was based on the feasibilitylanguage in Section 6(b)(5) and is, therefore, not applicable to standards adopted underSection 6(a). First, this overlooks that there are other sources for an infeasibilitydefense. The Commission in Dun-Par derived the infeasibility defense from the verynature of Section 6(a) standards. Second, the Commission and the courts agree that Section6(b)(5) feasibility concepts are relevant to Section 6(a) standards. In Dun-Par,the Commission stated that \”One court has inferred from section 6(b)(5) that all OSHAstandards are implicitly constrained by the feasibility requirement.\” 12 BNA OSHC at1955 (emphasis added), citing A.F.L.C.I.O. v. Brennan, 530 F.2d 109, 121, 3 BNAOSHC 1820, 1828 (3d Cir. 1975), and Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534F.2d 541, 549-550, 551-552 & n. 13, 4 BNA OSHC 1061 (3d Cir. 1976) (Commission mayconsider whether Section 6(a) established federal standard is invalid as economicallyinfeasible) [[8\/]]The above discussion makes clear that the Judge has placedhimself in conflict with case law from both the Commission and the federal appellatecourts. He has, moreover apparently placed himself in conflict with at least some of hisfollow Administrative Law Judges, two of whom have without reservation considered adefense of economic infeasibility.[[9\/]]There is, therefore, a need for the Commission to state its view on this important issuewith clarity and authority.C. Interlocutory Review May Materially Expedite. The Final \u00a0\u00a0\u00a0\u00a0 Disposition of the ProceedingAccording to Commission Rule 2200.73(a), Falcon need not showthat immediate review will materially expedite the final disposition of this Case; Falconneed show only that it \”may\”do so. Nevertheless, there can be little doubt thatinterlocutory review will speed up the resolution of 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 tointroduce evidence of economic infeasibility would presumably be rejected by the Judge asirrelevant. Falcon represents that this evidence would likely include the testimony ofseveral expert witnesses. Then, if the Commission reverses the Judge on discretionaryreview and holds that the evidence is relevant because economic infeasibility is adefense, the case would have to be remanded and retried at great expense to theCommission, the Secretary, and Falcon — a relatively small family-owned business.[[10\/]]If, on the other hand, interlocutory review is granted, a remand and retrial can beavoided. Moreover, Falcon respectfully suggests that a favorable ruling by the Commissionon the legal issue might perhaps promote the prospects for an amicable settlement and thusmake any trial unnecessary.Accordingly, interlocutory review should be granted.Respectfully submitted,Robert C. GombarStephen C. Yohay, Esq.Arthur G. Sapper, Esq.JONES, DAY, REAVIS & POGUECOUNSEL FOR FALCON STEEL COMPANY, INC.7191s SECRETARY OF LABOR,Complainant,v.FALCON STEEL COMPANY, INC., Respondent.Docket Nos.: 89-2883 and 89-3444 (Consolidated)ORDER DENYING RESPONDENT’S MOTION TO COMPELANSWERS 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 produce certaindocuments. In addition, Falcon requested leave to depose certain individuals and for ahearing on its motions.Falcon served its First interrogatories and Document request inNo. 89-3444 on May 11, 1990. The Secretary’s objections were received by Falcon on May 24,1990. Falcon filed its notion to compel on June 5, 1990. The Secretary filed a response tothe motion to compel on June 25, 1990. On the same day, Respondent filed a supplement toits notion and on June 26, 1990, filed a reply to the Secretary’s response. A telephoneconference was held on June 29, 1990, resulting, inter alia, in an order being issued onthat date granting leave to the Secretary to file a supplement to the June 25, 1990,response to the motion. All of the pleadings have now been considered.Falcon’s interrogatories number 12 and 13, respectively,requested that the Secretary identify certain OSHA personnel responsible for the pendingproposed revisions of Subparts M and R, of 29 C.F.R., Part 1926. Similarly, Falcon’srequests number 33 and 34 of its request for production of documents sought, respectively,all documents relating to OSHA’s proposed rulemaking for Safety Standards for FallProtection in the Construction Industry and OSHA’s plan to propose revisions to Subpart Rof 29 C.F.R., Part 1926.Accompanying its Motion to Compel, Falcon also seeks leaveunder Commission Rule 56, 29 C. F. R. ? 2200.56 (1988), [[1]] to depose the twoindividuals to be identified in the Secretary’s responses to interrogatories number 12 and13; a representative of the contractor who prepared an economic analysis of the proposedrevisions to the structural steel erection standards; and a representative of OSHAknowledgeable about the agency’s proposals and plans regarding standards affecting thesteel and concrete construction industries. [[2]]By objecting to the discovery requests, responding to theMotion to Compel, and objecting to the request for leave to depose certain persons, theSecretary has placed in issue the propriety of those requests. The Secretary’s statedobjections to the requests are based on the argument that the materials sought are notrelevant.II Propriety of Falcon’s Discovery Requests.Falcon, quite clearly states in its June 8, 1990,motion tocompel that it \”intends to prove in this case that 29 C.F.R. ? 1926.105(a) isgenerally infeasible for the high-rise steel erection industry.\” (Emphasis inoriginal.)General industry-wide infeasibility of compliance with anoccupational safety and health standard adopted of such pursuant to section 6(a) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 655(a), is not a valid defense toa citation.It follows that evidence relating to that proposition is notrelevant and would not be admissible in this enforcement proceeding. Thus, Falcon’s motionto compel, as to the objected to discovery requests [[3]] is not reasonably calculated tolead to the discovery of admissible 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. As theCommission 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 consensusstandards and established federal standards as occupational safety and health standardsquickly and without the public notice, comment and rulemaking provided for by section 6(b)of the Act, 29 U.S.C. ? 655(b). The Congressional mandate to adopt pre- existingregulations while bypassing the rulemaking procedures of section 6(b) of the Act was, ineffect, a Congressional adoption of those regulations as occupational safety and healthstandards whether the pre-existing regulations fully met the new definition ofoccupational safety and health standards in section 3(8) of the Act, or not.Even if Falcon is correct in maintaining that section 3(8) ofthe Act incorporates some sort of feasibility test for the validity of a safety standardsimilar to that imposed by section 6(b)(5) of the Act for the adoption of standardsdealing with toxic materials, such a test is not applicable to standards adopted undersection 6(a) of the Act.The formulations by courts of tests for economic feasibilitysuch as United Steelworkers of America v., Marshall, 647 F.2d 1199 (D.C. Cir. 1980)(\”Steelworkers\”), contemplated their application in section 6(b)(5) standardscases. Indeed, the Steelworkers court considered section 6(b)(5) of the Act to be\”the source of the feasibility requirement.\” 647 F.2d at 1270, n. 119. Moreover,the Steelworkers court contemplated that such \”general infeasibility\” would bedemonstrated through an employers \”particular circumstances.\” Id.Finally, Falcon reviews in some detail OSHA’s current rulemaking activity with regard to the high-rise steel and concrete construction industries.OSHA is in the process of rulemaking regarding fall protection for concrete constructionand has announced that it is about to commence another rulemaking regarding fallprotection in steel erection. Public hearings to to the proposed rulemaking for concreteconstruction have been held and the rulemaking record in closed. In anticipation of publicrulemaking proceedings OSHA has circulated to interested parties an informal draft of itsproposal regarding steel erection. Falcon has a copy of this draft.The pending proposals regarding fall protection in bothconcrete construction and steel erection are presently undergoing the notice, comment andpublic rulemaking procedures required by section 6(b) of the Act. These activities areproviding the opportunity for interested parties to make a record as to industry wideeconomic feasibility of compliance as envisioned by many of the court decisions. Thus, tothe degree that Falcon claims that it is generally infeasible for the steel erectionindustry to erect safety nets, the proper forum lies in the rulemaking proceedings.Accordingly, Falcon’s motion to compel the Secretary to answerinterrogatories 12 & 13 and to compel the Secretary to produce the documents requestedin its requests 33 & 34 is DENIED.Inasmuch as Falcon’s request for leave to depose individualsinvolved with the ongoing rule-making activities having nothing to do with conditions atthe 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 toproduce her files relating to citations issued to other contractors on the job site inquestion here. For the reasons set forth in the order of May 30, 1990, Falcon’s requesthas not been shown to be reasonably calculated to lead to the discovery of admissibleevidence.Accordingly, Falcon’s motion to compel the Secretary to producethe documents 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 factualrecord at this stage of the proceedings is unnecessary. Accordingly, Falcon’s request fora 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’sRequest for Production 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’sRequest for Production of Documents in No. 89-3444, served May 24, 1990, with respect toRequest 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) (DeputyChief Judge Sommer) (similar).[[4\/]] Formally known as the Contract Work Hours and SafetyStandards Act, 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 might substantially interfere with U.S. Steel’s operations, U.S. Steel made noattempt to rebut the Secretary’s evidence or to show. that it was economically infeasibleto interrupt casts in order to remove the water, or to shut \”K\” vessel downuntil the water was removed. See Sherwin-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 Steelworkersthat an economic infeasibility defense would be demonstrated through an employer’s\”particular circumstances\”. The implication is that Falcon will not attempt toprove anything about its own particular circumstances. Falcon never said that it would notattempt to introduce evidence about its own circumstances. On the contrary, Falcon expectsto show that the industry-wide infeasibility of perimeter nets applies equally well to it,for it is a typical member of that industry. Second, nothing in Steelworkers saysthat economic infeasibility can be proven only in the ways the court outlined.[[9\/]] 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 ChiefJudge Sommer) (similar).[[10\/]] It is worth noting that the Commission has long favoredallowing an employer to introduce evidence supporting a claim or impossibility orinfeasibility so that the merits of the legal argument can be evaluated on the basis of adeveloped factual record. See W.C. Sivers, 1 BNA OSHC 1074 (No. 239, 1972)(impossibility not yet held to be a defense; Commission would give employer \”theopportunity to present the [impossibility] defense without venturing any opinion at thistime concerning the completeness of the defense, if established under the Act.\”).[[1]] Rules of Procedure of the Occupational Safety and HealthReview Commission, 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 34for production of documents, and requests for leave to take depositions may be referred toas the \”objected to discovery requests.\” Other portions of the motion to compelhave been withdrawn. Similarly, the Secretary has withdrawn her argument that the motionto compel was untimely filed. See, order of June 29, 1990. Falcon’s request for leave totake depositions has not been challenged as untimely. [[3]] See footnote 3, supra.”