“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 79-1625, 79-2592, 79-2690, 79-2691 & 79-2692 OTIS ELEVATOR COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 September 25, 1980ORDER??????????? Theseare cases under the Occupational Safety and Health Act of 1970, 29 U.S.C. ??\u00a0651-678(?the Act?). The cases were consolidated[1] for hearing and decisionby Administrative Law Judge Paul L. Brady, whose decision is before theCommission for review pursuant to section 12(j) of the Act, 29 U.S.C. ? 661(i).??????????? Followinga January, 1979 inspection of Respondent?s facility in London, Ohio, theSecretary of Labor (?Secretary?) issued to Respondent seven citations?seriouscitation No. 1 and repeated citation No. 2, issued on March 7, 1979; seriouscitation No. 3, repeated citation No. 4, and nonserious citation No. 5, issuedon March 23, 1979; and serious citation No. 6 and repeated citation No. 7,issued on April 26, 1979. Respondent filed timely notices of contest to eachgroup of citations. The Secretary also issued several amended citationsconcerning one item of citation No. 3 on May 7, 1979, and concerning theabatement dates required for several items of citation Nos. 6 and 7 on May 9,1979. Respondent also filed notices of contest to these amended citations.??????????? TheSecretary duly forwarded the various notices of contest and the relatedcitations to the Commission, and the Commission docketed five cases, assigningthem Nos. 79-1625, 79-2592, 79-2690, 79-2691, and 79-2692. At Respondent?srequest, Judge Brady consolidated the cases for hearing and decision pursuantto Commission Rule 9. Prior to the hearing, the parties entered into asettlement agreement resolving the dispute as to citation Nos. 1, 4, 5, 6, and7, and as to all items of citation No. 3 except for item 22(c). The agreementwas filed with the judge and a hearing was scheduled on citation No. 2 and onitem 22(c) of citation No. 3. At the outset of the hearing, the Secretary movedto withdraw this latter item and the related proposed penalty, and the judgegranted the motion. The evidentiary hearing accordingly concerned only citationNo. 2, in which the Secretary alleged that Respondent repeatedly failed tocomply with the noise standard at 29 C.F.R. ? 1910.95(b)(1).??????????? Inhis decision, the judge approved the settlement agreement and disposed of thecitations it covered as the parties had agreed. He also vacated item 22(c) ofcitation No. 3 in accordance with his hearing ruling granting the Secretary?smotion to withdraw. The judge additionally entered factual findings, legalconclusions, and an order vacating citation No. 2.??????????? TheSecretary filed a petition for discretionary review taking exception to thejudge?s decision vacating citation No. 2. The petition was granted byCommissioner Cottine. No issues relating to any of the other citations weredirected for review.??????????? Becausereview has not been directed concerning any issue in citation Nos. 1, 3, 4, 5,6, and 7, the cases relating to them are not before the Commission for review.See Commission Rule of Procedure 92(c), 44 Fed. Reg. 70106, 70111 (1979), to becodified in 29 C.F.R. ?\u00a02200.92(c) [formerly Rule 91a(c), 29 C.F.R. ?2200.91a(c)]. The docket numbers which relate exclusively to citations not onreview?No. 79-2690 relating only to citation Nos. 3, 4, and 5; and Nos. 79-2592and 79-2692 relating only to citation Nos. 6 and 7?are accordingly severedpursuant to Commission Rule 10.[2] The judge?s decision as tothose cases is the final order of the Commission. Docket No. 79-1625 isproperly before the Commission insofar as that case concerns citation No. 2.Docket No. 79-2691, which also concerns citation No. 2, was assigned as aresult of administrative error and is hereby cancelled. Any documents containedin the official record in No. 79-2691 shall be made part of the official recordin No. 79-1625.??????????? Accordingly,Docket Nos. 79-2690, 79-2592, and 79-2692 are hereby severed, and the judge?sdecision insofar as it concerns those docket numbers is the final order of theCommission. Docket No. 79-2691 is cancelled. The issues directed for review byCommissioner Cottine remain before the Commission for review under Docket No.79-1625. SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: SEP 25, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 79-1625, 79-2592, 79-2690, 79-2691 & 79-2692 OTIS ELEVATOR COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 June 12, 1980DECISION AND ORDERAPPEARANCES:Andrew W. Hoffmann, Esquire U.S.Department of Labor 881 Federal Office Building 1240 East Ninth StreetCleveland, Ohio 44199\u00a0Robert A. Minor, Esquire Vorys, Sater,Seymour & Pease 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216\u00a0BRADY, Judge:??????????? Thisconsolidated proceeding is brought pursuant to section 10 of the OccupationalSafety and Health Act of 1970 (Act) to contest seven citations and proposedpenalties issued by the Secretary of Labor (Secretary) pursuant to section 9(a)of the Act.??????????? Thecitations were issued as a result of an inspection of respondent?s iron foundrybetween January 23, 1979, and February 1, 1979. A hearing was initially set forOctober 1, 1979, which was continued from time-to-time at the request of theparties to allow every opportunity to resolve the numerous alleged violations.During the course of a pre-trial hearing held January 31, 1980, settlement wasreached in all matters except two alleged violations. Specific provision wasmade at the hearing for further inspection of respondent?s manufacturingfacility by complainant?s experts.??????????? Atthe commencement of the hearing on the merits April 8, 1980, complainant?smotion to withdraw the alleged violation of 29 C.F.R. ? 1910.179(f)(2)(IV) wasgranted, and its motion for another order to compel permission to enter landwas denied.??????????? Theremaining unresolved issue pertains to the alleged repeated violation of 29C.F.R. ? 1910.95(b)(1) which states as follows:(1) When employees are subjected to soundexceeding those listed in Table G?16, feasible administrative or engineeringcontrols shall be utilized. If such controls fail to reduce sound levels withinthe levels of Table G?16, personal protective equipment shall be provided andused to reduce sound levels within the levels of the table.???????????? Thefindings that employees were exposed to noise in excess of permissible limitsare not in dispute (Tr. 19?20). The record also reveals that as a result of aninspection of April 2, 1974, a citation was issued respondent charging theabove violation in some of the same areas of the facility (Tr. 13).??????????? Theindustrial hygienist who conducted the inspection in this case testified thatcontrols were available for reducing the noise levels, however, no evidence wasoffered regarding specific methods of abatement, nor was it shown such methodswere feasible. His testimony indicated that no cost-benefit analysis for noise reductionwas undertaken. He found that personal protective equipment was provided theexposed employees.??????????? Followingthe testimony of the inspecting officer, the Secretary renewed the motionsfiled March 20, 1980, for another continuance and an order for furtherinspection to determine the feasibility of engineering controls. Both motionswere again denied and respondent?s motion to dismiss was granted.??????????? Whilethe Secretary acknowledges his burden of establishing feasible administrativeor engineering controls no such controls were shown to exist. The central issuepresented is the Secretary?s contention that he has been deprived of anopportunity to present such evidence. The motion to dismiss was granted in thiscase based on a full consideration of the facts and established Commissionprecedent.??????????? TheCommission recognizes that discovery inspections are ordinarily permissiblewhere a violation of the noise standard is alleged. Pabst Brewing Company,77 OSAHRC 12\/A2, 4 BNA OSHC 2003, 1876?77 CCH OSHD ?21, 472 (No. 13068, 1977).The decision to allow discovery, however, is within the sound discretion of thejudge. KLI, Inc., 77 OSAHRC 202\/A2, 6 BNA OSHC 1097, 1977?79 CCH OSHD ?22,350 (Nos. 13490, 1978).??????????? In RalstonPurina Company, 79 OSAHRC 81\/E6, 1979 CCH OSHD ?23,897 (No. 78?145), theCommission stated:The sound discretion should be guided bythe objective or providing a fair and prompt hearing to the parties. Moreover,the judge should consider the need of the moving party for the informationsought, any undue burden to the party from whom discovery is sought, and, onbalance any undue delay in the proceedings that may occur.???????????? Inlight of the foregoing decisions, further discovery inspection in this case isnot justified. The facts show that respondent was previously cited for aviolation of the noise standard. It must be assumed complainant was aware offeasible means to abate the condition within the one year period provided. Uponthe most recent inspection which gave rise to the alleged repeat violation, complainantmust have necessarily known what respondent had failed to do, or what it wasspecifically required to do in the cited areas in order to comply with thestandard. Following a protracted delay in this case coming on for hearing, anorder was entered granting complainant the requested discovery, and its expertsinspected respondent?s facility. The order was entered with the understandingthat a final hearing would be held as soon as practicable.??????????? Inits objection to the request for further in-depth study by complainant?sexperts, respondent points out its right to a prompt and fair hearing andcontends a reasonable time and reasonable manner for inspection has beenallowed, consistent with Rule 34(b) of the Federal Rules of Procedure.??????????? Theruling denying the Secretary?s motion has not been shown to result insubstantial prejudice to the Secretary?s case, as discovery has been grantedfor the express purpose of allowing experts to further inspect the plant. Theresults of the inspection of February 19, 1980, have not been shown, but it isindicated that further in-depth study is necessary to ?arrive at professionalopinions and conclusions?. The required burden of proof in these circumstanceshas been recognized for several years and in providing a fair and prompthearing, further delay for the purpose indicated is unjustified.Findings of Fact??????????? 1.Otis Elevator Company, at all times pertinent hereto, maintained a place ofbusiness at 350 East High Street, London, Ohio, where it operates an ironfoundry.??????????? 2.Authorized representatives of the Secretary conducted an inspection of theaforesaid worksite between January 23, 1979, and February 1, 1979. As a resultof such inspection, respondent was issued seven citations with notice ofproposed penalties.??????????? 3.Hearing in this consolidated proceeding was initially set for October 1, 1979,but was continued from time-to-time at the request of the parties to allowevery opportunity to amicably resolve the numerous alleged violations.??????????? 4.During a pre-trial hearing on January 31, 1980, the parties entered into anagreement whereby all matters in issue were resolved except two allegedviolations. The agreement which amended certain citations and proposedpenalties was approved.??????????? 5. Atthe pre-trial hearing, complainant?s motion for discovery was granted andexperts inspected respondent?s facility on February 19, 1980.??????????? 6.Complainant?s motion filed March 20, 1980, seeking further discovery was deniedas further delay of the hearing on the merits was not justified.??????????? 7. Atthe hearing on April 8, 1980, an alleged violation was withdrawn, and a hearingon the merits proceeded in reference to 29 C.F.R. ? 1910.95(b)(1). (The noisestandard).??????????? 8. Acitation was issued respondent on April 25, 1974, alleging violation of the noisestandard which was not contested. In defending the alleged repeat violationrespondent asserts no feasible engineering controls exist.??????????? 9. Atthe hearing in this cause, complainant failed to establish the existence offeasible administrative or engineering controls to reduce noise levels.??????????? 10.Respondent has instituted an effective hearing conservation program at thefacility and enforces use of personal hearing protection.Conclusions of Law??????????? 1.Otis Elevator Company, at all time pertinent hereto, was an employer engaged ina business affecting commerce within the meaning of section 3(5) of theOccupational Safety and Health Act of 1970, and the Commission has jurisdictionof the parties and subject matter herein pursuant to section 10(c) of the Act.??????????? 2.Respondent is, and at all times pertinent hereto, required to comply withsafety and health regulations promulgated by the Secretary pursuant to section6(a) of the Act.??????????? 3.The agreement of the parties is consistent with the provisions and objectives ofthe Act.??????????? 4.Respondent was not in violation of the standard at 29 C.F.R. ? 1910.95(b)(1)during the period January 23, 1979, to February 1, 1979, as alleged.??????????? Uponthe basis of the foregoing findings of fact and conclusions of law, and theentire record, it isORDERED:??????????? 1.The settlement agreement is approved and incorporated herein by agreement.??????????? 2.That part of citation no. 1 alleging serious violation of 29 C.F.R. ?1910.95(a) is hereby affirmed, and a penalty in the amount of $300.00 isassessed.??????????? 3.The amended part of citation no. 1 alleging violation of 29 C.F.R. ?1910.151(c) is affirmed.??????????? 4.Citation no. 2 alleging violation of 29 C.F.R. ? 1910.95(b)(1) is herebyvacated.??????????? 5.Citation no. 3 items 1, 2, 4, 5, 6, 7, 8(b)(c)(d), 9, 11, 12(b)(c), 13,14(a)(b)(c), 16(b)(c)(d)(e), 17, 18(a)(b)(c), 19, 22(a)(c)(e)(h), 23(a)(b)(c),24, 25(a)(b), 26(a)(b), 27(a)(b), 28(a)(b)(c), and 29(a)(b)(c)(d) are herebyaffirmed as serious violations, and a penalty in the amount of $2,000 isassessed; items 16(a), 20(a)(b), 21(b), 22(d) and 22(g) are hereby affirmed as?other? than serious violations; items 3(a), 8(a), 10, 12(a), 15, 21(a) and22(f) are hereby vacated.??????????? 6.Citation no. 4 alleging repeat violations is hereby affirmed, and a penalty inthe amount of $300.00 is assessed.??????????? 7.Citation no. 5 is hereby affirmed.??????????? 8.Citation nos. 6 and 7 for serious and repeat violations are hereby affirmed anda total penalty in the amount of $400.00 is assessed.??????????? Dated this 12th day of June, 1980.?PAUL L. BRADYJudge[1] Commission Rule 9,29 C.F.R. ? 2200.9, provides:Rule 9 Consolidation.Cases may be consolidated on the motion ofany party, on the Judge?s own motion, or on the Commission?s own motion, wherethere exist common parties, common questions of law or fact, or both, or insuch other circumstances as justice and the administration of the Act require.[2] Commission Rule10, 29 C.F.R. ? 2200.10, provides:Rule 10 Severance.Upon its own motion, or upon motion of anyparty or intervenor, the Commission or the Judge may, for good cause, order anyproceeding severed with respect to some or all issues or parties.”