Docket No. 10925

CASTLE & COOKE FOODS, a Division of CASTLE & COOKE, INC.

OSHRC Docket No. 10925

Occupational Safety and Health Review Commission

May 19, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Altero D'Agostini, Regional Solicitor

Hugh Shearer and Carl K. Mirikitani, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

This case presents the issue of whether Judge James A. Cronin erred in vacating a citation issued under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") which alleged noncompliance with the Secretary's noise standard at 29 C.F.R. 1910.95(b)(1). n1 Judge Cronin determined, among other things, that the citation must be vacated because the cited standard is unenforceably vague and because the Secretary failed to prove that specific engineering controls were available for implementation by Respondent on the inspection date. For the reasons below, we affirm the Judge's order vacating the citation on the basis that the suggested engineering controls are not economically feasible.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The standard at 29 C.F.R. 1910.95(b)(1) provides:

When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

Table G-16 - Permissible Noise Exposure

Duration per	Sound level dBA
day, hours	slow response
8	90
6	92
4	95
3	97
2	100
1 1/2	102
1	105
1/2	110
1/4	115

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent was cited for failure to use engineering controls to reduce noise levels in its Hawaiian can plant and two areas of its Hawaiian cannery to within the standard's limits. n2 Respondent manufactures metal cans from sheet metal in the can plant, and maintains its own pineapple canning operation in the cannery. The can plant is a large building of approximately 70,000 square feet in which approximately 210 employees are ordinarily employed. During the busy season, up to 350 employees might be employed in the can plant. The cannery is a smaller building detached from the can plant. Approximately twelve employees are employed in the frozen products area and the contract packing, filling, and seaming room, the two areas of the cannery involved in the citation.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The parties stipulated that administrative controls to reduce noise levels were not feasible. Further, the Secretary did not allege that Respondent failed to protect its employees with personal protective equipment. Thus, Respondent was in violation of the standard only if it failed to implement feasible engineering controls.

[*3]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The parties agree that the employees in the can plant and the two areas of the cannery work in the proximity of the machines for eight hour shifts and are exposed to sound levels in excess of those permitted in Table G-16 of 1910.95. Specifically, the parties' stipulation and the report by Respondent's expert (hereinafter "Pack report") establish the noise levels at employee work stations in the vicinity of the machines to be as follows:

Can Plant

Bodymakers	99 - 103 +/- 2 dBA
Double Seamers	98 - 101 +/- 2 dBA
Minster Press	98 - 101 +/- 2 dBA
Palletizers	94 - 97 +/- 2 dBA
Flangers	99 - 101 dBA
Beaders	99 - 103 dBA
Air Testers	98 - 103 dBA
End Presses	95 - 98 dBA
End Packers	99 - 101 dBA
Scroll Shears	86 - 94 dBA
Conveyors	96 dBA

Cannery

Double Seamers (frozen	95 - 96 +/- 2 dBA
Produce Area)
Rotary Filling Machine	95 - 96 +/- 2 dBA
(Frozen Products Area)
Double Seamer (Contract	94 - 97 +/- 2 dBA
Packing, Filling and
Seaming Room)

The Pack report and the Secretary's noise expert agreed that the most effective engineering approach to the noise problem in the can plant and the cannery [*4] is to generally enclose the aforementioned machines so as to absorb the noise before it reaches the employees. The Pack report concluded that a standard approach using off-the-shelf hardware is impractical. However, Respondent acknowledges in its brief that the technology to custom-design engineering controls (enclosures) existed at the time of the inspection. The Pack report determined, and the Secretary agrees, that two years will be necessary to design, develop, and install prototype engineering controls for each type of machine, and three years will be necessary to manufacture and install finalized engineering controls. The Pack report concluded that the enclosures will reduce the noise levels to within Table G-16 limits. The Secretary's expert could not guarantee that Table G-16 limits will be reached, but did believe that substantial reductions in noise will be achieved by enclosing the machines. The Judge found that the engineering controls could be expected to lower noise to G-16 limits. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Respondent argues that, inasmuch as the Secretary's expert was unable to state that the suggested engineering controls would reduce noise to G-16 limits, the record will not support a finding that controls would reduce noise to those levels. It therefore moves that the citation be vacated on the ground that engineering controls need not be instituted where their use will not bring Respondent into compliance with 1910.95. We held to the contrary in Continental Can Co. Inc., 76 OSAHRC 109/A2, 4 OSHC 1541, 1976-77 OSHD para. 21,009 (1976), pet. for review filed, No. 76-3229 (9th Cir., Oct. 19, 1976), and accordingly we reject Respondent's argument. Moreover, we note that the Judge weighed conflicting evidence on the point and found that engineering controls would be expected to reduce the noise to G-16 limits.

[*5]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Pack report concluded that the cost of implementing the five-year plan will be $656,492 for the can plant and $40,886 for the cannery, for a total of $697,378. These figures include estimates for designing, fabricating, shipping, installing, and checking prototypes for each type of machine, modifying the prototypes, and fabricating, shipping, installing, and checking the finalized engineering controls for all of the machines involved. The Pack report also determined that the annual production losses and increased maintenance costs Respondent will incur as a result of the implementation of engineering controls will amount to $240,328 in the can plant and $1,338 in the cannery, for a total of $241,666. These figures are based on estimated productivity losses in the can plant of 5% for the can lines and 2.5% for the press department due to the loss of visual and physical access. The estimated increases in maintenance costs are the result of the additional time needed to disassemble or remove enclosures during unscheduled maintenance ("downtime") and scheduled overhauls in the can plant and cannery, [*6] and line changeovers in the can plant.

The manager of the can plant, Mr. Neff, and the manager of the cannery, Mr. Auten, also provided estimates on implementation costs and annual cost impact of engineering controls. Mr. Neff was of the opinion that the cost of engineering, designing, fabricating, and installing engineering controls in the can plant will be $900,000 to $1,000,000. He also estimated the production and maintenance cost of such engineering controls in the can plant to be $931,459. Mr. Auten calculated the implementation costs in the two areas of the cannery to be $57,240 and the annual cost impact of the controls to be $35,950. n4

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Respondent concedes in its brief that the figures on production loss and maintenance cost presented by Mr. Neff and Mr. Auten contained some miscalculations, so that the correct estimates for cost impact are $686,534 for the can plant and $26,111 for the cannery.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The parties agree that Respondent provides its employees with personal protective equipment which, if used, [*7] reduces the sound levels experienced by employees to within Table G-16 limits. The equipment is provided at an annual cost to Respondent of approximately $1000. Use of the equipment by employees has been mandatory since 1970 and the equipment is usually used. n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Respondent's plant manager testified that on occasions he has observed employees who are not wearing noise protection. This by itself does not establish the inadequacy of Respondent's noise program. A certain amount of unprotected exposure to continuous noise levels as high as 115 dBA is permitted by the standard itself. Moreover, the parties agree that only engineering controls are at issue in this proceeding.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Judge Cronin vacated the citation. He determined initially that Respondent had the right to challenge the validity of a standard and that the Commission has the authority to rule on the challenge, n6 but concluded that Respondent had failed to show that the standard was arbitrary and unreasonable in that it requires engineering and administrative [*8] controls rather than personal protective equipment as the primary means of noise control. n7 However, the Judge vacated the citation on the basis that 1910.95(b)(1) is unenforceably vague in that it fails to define feasible engineering and administrative controls. In the alternative, Judge Cronin also determined that the Secretary failed to establish the allegation made in his citation and complaint. In this regard, the Judge found that the technological capability to custom design, develop, and install prototype engineering controls was available to Respondent on the inspection data. However, because he found that the present technology will have to be applied to Respondent's specific noise problem over a five-year period, he concluded that the Secretary had not shown that particular engineering controls were available for immediate implementation by Respondent on the dates of the inspection.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 The Secretary on review declined to brief, but did not waive, his argument that employers lack the right to challenge the validity of a standard during an enforcement proceeding and that the Commission lacks the authority to rule on the validity of a standard. It is sufficient to note here that the Commission has held that it has the authority to rule on the validity of standards. Tobacco River Lumber Co., 17 OSAHRC 235, 3 OSHC 1059, 1974-75 OSHD para. 19,565 (1975); accord, Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541 (3d Cir. 1976).

n7 In its brief on review, Respondent excepts to the Judge's finding that the standard is not arbitrary and unreasonable. The Judge's conclusion is consistent with our decision in Turner Co., 76 OSAHRC 108/A2, 4 OSHC 1554, 1976-77 OSHD para. 21,023 (1976), pet. for review filed, No. 76-2024 (7th Cir., Oct. 18, 1976).

[*9]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We have previously rejected the argument that the standard is unenforceably vague, and therefore reverse the Judge's contrary holding. Turner Co., 76 OSAHRC 108/A2, 4 OSHC 1554, 1976-77 OSHD para. 21,023 (1976), pet. for review filed, No. 76-2025 (7th Cir., Oct. 18, 1976). n8

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 The Secretary also argues that the Commission lacks the jurisdiction to consider Respondent's argument that the standard is unconstitutionally vague. The Commission has held that it has the authority to consider vagueness arguments. Santa Fe Trail Transport Co., 5 OSAHRC 840, 1 OSHC 1457, 1973-74 OSHD para. 17,029 (1973), rev'd on other grounds, 505 F.2d 869 (10th Cir. 1974).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We also conclude that the Judge erred in holding that engineering controls are infeasible because controls were not immediately available on the date of the alleged violation. Respondent's own expert testified that specific engineering methods were presently available to significantly [*10] reduce the noise levels in Respondent's plant. That is sufficient to show that engineering controls are technologically feasible. See Continental Can Co., 76 OSAHRC 109/A2, 4 OSHC 1541, 1976-77 OSHD para. 21,009 (1976), pet. for review filed, No. 76-3229 (9th Cir., Oct. 19, 1976); Turner Co., supra. In this case, Respondent would not be required to develop new technology, but rather to adapt presently available technology. Compare Love Box Co., 76 OSAHRC 45/D5, 4 OSHC 1138, 1975-76 OSHD para. 20,588 (1976). That controls may have to be custom-designed will, of course, affect their cost and therefore be relevant to their economic feasibility. See Continental Can Co., supra. Furthermore, that factor may be considered in setting a reasonable abatement date. 29 U.S.C. 658(a).

Having concluded that both of the bases relied upon by the Judge for his vacation of the citation were erroneous, we turn now to the issue of whether the suggested engineering controls were economically feasible. Respondent argues that the Secretary did not sustain his burden of proving economic feasibility. It contends that the evidence adduced at the hearing demonstrates that the [*11] cost of implementing the suggested engineering controls in the can plant and cannery n9 is grossly disproportionate to any purported benefit, particularly in view of the low cost and effectiveness of personal protective equipment. Further, Respondent contends that an evaluation as to the economic feasibility of engineering controls should be made only with regard to its Hawaii operations and should not consider the overall corporation since the noise problem is not universal but only exists with relation to its Hawaii operations. Finally, Respondent avers generally that the cost of implementing engineering controls will jeopardize its pineapple packing operations in Hawaii and will cause its can costs to be noncompetitive with the other source of cans available.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 Judge Cronin concluded that the cost of developing and installing controls in the can plant and cannery would be $697,378 and the annual cost impact of the controls would be between $240,000 and $740,000. The figures of $697,378 and $240,000 have their origin in the Pack report. At the hearing, the Secretary conceded that the Pack report's estimate of $697,378 for the implementation of engineering controls was reasonable.

On review, the Secretary points out that the Judge's finding on implementation cost does not take into account reductions in cost which would result from tax deductions taken on noise abatement equipment. As the Secretary failed to adduce any evidence on this point, we are unable to use this factor in making determinations. The Secretary also submits that the lower range of the estimated annual cost impact found by the Judge represents the most reasonable estimate. We agree, since the Pack report is more reliable than the other evidence introduced on the subject. See n.4, supra. Accordingly, in considering the economic feasibility of engineering controls, we find that the cost of implementing controls will be $697,378, and the annual cost impact will be $240,000.

[*12]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary contends that economic factors may be given weight in determining the feasibility of engineering controls only (1) if the cost would so seriously jeopardize Respondent's condition as to result in the probable shut-down of the establishment or (2) if the increment of employee protection by the use of engineering controls is insignificant and does not approach permissible limits while the cost of the controls is so great as not to justify the imposition of controls of marginal utility. The Secretary urges that this test is consistent with court of appeals cases which require consideration of economic impact where the cost would threaten the viability of the employer. He cites to Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974); Arkansas-Best Freight System Inc. v. OSHRC, 529 F.2d 649 (8th Cir. 1976); and National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). The Secretary contends that suggested engineering controls may be economically feasible even if they are financially burdensome or adversely affect profit margins. Applying [*13] his test here, the Secretary maintains that economic infeasibility was not shown since at most the cost of the controls would merely have an adverse effect on Respondent's profit margin but would not cause Respondent to shut down its Hawaii plant. He also states that there is no indication that the overall corporation will be unable to absorb the costs of the controls. Finally, the Secretary submits that Respondent has the burden of proving economic infeasibility, but that the allocation of the burden of proof is not crucial in this case inasmuch as the record establishes economic feasibility.

In Continental Can Co., supra, we rejected the argument that the sole economic consideration entering into the determination of whether engineering controls are feasible is whether the employer's economic existence was jeopardized. We said that economic feasibility was instead to be evaluated in terms of the relevant cost and benefit factors shown by the record. n10 Accordingly, we reject the Secretary's first suggested criterion for determining economic feasibility.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 Since we analyze economic feasibility in terms of costs and benefits, we do not consider an employer's economic health to be of overriding significance, and therefore do not reach the question of whether that factor is appropriately determined on a national scale or on a plant-by-plant basis. It may be that if controls are found to be economically feasible on a cost/benefit basis, some employers who have lagged behind the industry in protecting the health and safety of employees will be forced to cease doing business. See Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1973). On the other hand, as will be more fully discussed infra, if controls are not justified on a cost/benefit basis, the fact that an employer can "afford" to install such controls does not render them feasible.

[*14]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary's second suggested criterion recognizes that some balancing of costs and benefits is necessary in determining economic feasibility. The Secretary would, however, have us consider the cost of controls only "if the increment of employee protection by the use of engineering controls is insignificant and does not approach permissible limits." Thus, if a significant reduction in noise levels can be achieved, n11 the Secretary would require the imposition of controls regardless of their cost, so long as that cost is not so high as to result in the probable closing of the establishment.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 In Continental Can Co., supra, we noted that a reduction of 3 dBA represents a halving of the noise pressure, and is therefore a significant reduction in noise level.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We do not think that consideration of the cost of controls should be limited as the Secretary suggests. He approaches this case as if noise hazards and the abatement [*15] thereof should receive an employer's highest priority for allocation of its resources to the exclusion of all other health and safety hazards that may exist in the workplace. We note that the hazard involved herein was alleged to be nonserious, and the Secretary declined to propose a penalty. Excessive noise, however, is only one of numerous safety and health hazards the Act seeks to eliminate from workplaces, and other hazards pose serious debilitating threats and yet others are life threatening. Such serious hazards will also require resources for abatement, and obviously the benefits to be achieved will be great. We therefore cannot conclude that noise reduction should be assigned the priority suggested by the Secretary. Furthermore, we do not think that a specific employer's economic situation is particularly relevant in determining the feasibility of noise controls. If the question is whether an employer can "afford" the controls, then employee health would depend on the financial condition of their employer. Instead, we think that in determining whether controls are feasible, we must realistically consider the hazard presented by excessive noise and determine whether [*16] the health benefits to employees from noise reduction justify the cost to the employer.

This approach is consistent with the purposes of the Act. n12 The Act recognizes that perfect safety and health cannot be achieved, and that a balancing of costs and benefits must be made. For example, section 5(a)(1), the general duty clause, requires abatement of only those recognized hazards which are causing or are likely to cause death or serious harm. Although lesser hazards may be prohibited by specific standards, the general duty clause does indicate that Congress intended that abatement of serious hazards should have priority over lesser hazards. Additionally, many of the Secretary's safety standards seek to protect against the more serious possible consequences of accidents. For example, various fall protection standards only require precautions to be taken when certain fall distances exist, even though injuries can obviously occur for lesser fall distances. n13

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n12 As we noted in Continental Can Co., supra, the legislative history of the standard is not helpful in interpreting it. We therefore interpret it to effectuate the purposes of the Act.

n13 For example, 29 C.F.R. 1926.105(a) only requires fall protection when a fall distance of more than 25 feet exists. In construction work, guardrails are generally required only on scaffolds more than 10 feet in height. See 29 C.F.R. 1926.651(a)(4).

[*17]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Our decisions have recognized that certain hazards cannot be appropriately eliminated from workplaces. In some cases, we have excused noncompliance with the Secretary's standards to the extent necessary to enable required work to be accomplished. See e.g., W.B. Meredith II, Inc., 9 OSAHRC 245, 1 OSHC 1782, 1973-4 OSHD para. 18,003 (1974). In other cases, noncompliance with a standard has been permitted when compliance would result in a greater hazard. See Industrial Steel Erectors, Inc., 6 OSAHRC 154, 1 OSHC 1497, 1973-74 OSHD para. 17,136 (1974). In still other cases, we have held that, although there is nocompliance with a standard and a resultant hazard, the hazard is so trifling as to render inappropriate the entry of an abatement order. See Van Raalte Co., 76 OSAHRC 48/B8, 4 OSHC 1151, 1975-76 OSHD para. 20,633 (1976).

Consideration of the relationship between costs and benefits is particularly appropriate when dealing with the hazard of excessive noise. In many industrial settings, as in this case, the total noise heard by an employee results from contributions from many production [*18] machines, and the noise problem can only be alleviated by a major plantwide noise reduction program. In other situations, however, significant reductions in noise can be achieved simply and inexpensively. See Anheuser-Busch, Inc., No. 10609, 4 OSHC 1999, 1976-77 OSHD para. 21,466 (Jan. 13, 1977). Moreover, excessive noise is not life-threatening nor is it considered to be a serious health hazard within the meaning of the Act whereas other types of health hazards which may require significant expenditure of funds to abate are serious or life-threatening, e.g., those involving carcinogenic air contaminants. Although excessive noise can ultimately cause deafness, hearing loss is detectable before total deafness occurs, n14 and corrective measures to prevent further loss can be taken, such as rotation of employees who have suffered some hearing loss into job assignments in low noise areas. Furthermore, relatively reliable and convenient types of personal protective equipment are available which provide some protection against the effects of excessive noise.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n14 So long as noise levels in Respondent's plant exceed the limits in Table G-16, Respondent is required by 29 C.F.R. 1910.95(b)(3) to maintain a continuing and effective hearing conservation program. One element of such a program should be the provision of periodic hearing tests for employees exposed to excessive noise levels.

[*19]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent essentially contends that engineering controls should not be required because its employees are protected against hearing loss by the use of personal protective equipment. n15 We noted in Continental Can Co., supra, however, that personal protective equipment may not always be used, or may sometimes be used ineffectively. It therefore cannot be relied on to provide the same protection as a reduction in ambient noise levels. Although personal protective equipment can minimize the hazard, it cannot be assumed that it will entirely eliminate the hazard. Accordingly, in determining the benefits which will be gained by the use of engineering controls, we assume that some hearing loss will occur in Respondent's employees at the current noise levels. The question then becomes whether the expected degree of such loss is sufficient to justify the costs of the engineering controls.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n15 The Secretary points to evidence that two of Respondent's employees filed workmen's compensation claims for hearing loss after Respondent implemented its requirement that personal protective equipment be worn as proof of the ineffectiveness of Respondent's use of such equipment. We note, however, that at the noise levels existing in Respondent's plant, hearing loss will generally occur gradually over a long period of time. Thus, it is likely that most of any hearing loss suffered by Respondent's employees occurred prior to the time Respondent was required by the Act to protect its employees' hearing. Furthermore, the record reveals only that the workmen's compensation claims were made, and not their disposition.

We also note that the standard contemplates situations in which engineering and administrative controls cannot achieve the prescribed noise levels, and requires that personal protective equipment be used in such instances. Thus, the standard itself recognizes that personal protective equipment can provide some protection against the hazard of excessive noise.

[*20]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Approximately 210 full-time employees in the can plant and 12 employees in the cannery are exposed to excessive noise. n16 Using the figures discussed above (See n. 9), the cost of engineering controls per employee is as follows:

	Implementation Cost	Annual Cost Impact
Can plant	$3,100	$1,100
Cannery	$3,400	$ 111

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n16 Although some part-time employees work in the can plant, the record does not reveal the length of their employment. Since they are employed during the "busy season," we infer that they work for a relatively short part of the year, and that their exposure is therefore much less than that of the full-time employees.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In the can plant, current noise levels in most locations are 98-101 dBA. In the cannery, the levels are 95-96 dBA. In both locations, employees work eight hour shifts, and in both locations engineering controls can reduce noise levels to within the limits of Table G-16. n17 By reducing the noise [*21] levels so as to achieve full compliance with the standard, Responden will not be required to incur the costs currently associated with providing personal protective equipment and in maintaining a hearing conservation program. On this record, however, these costs are insignificant compared to the cost of engineering controls.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n17 Although the costs per employee associated with the cannery are lower than for the can plant, the benefits are also lower in that the net reduction in noise which will be achieved is smaller. We think that these factors essentially balance out, and that the same cost/benefit considerations apply to both facilities.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The reduction in noise exposure which can be achieved by engineering controls is clearly significant and can be expected to provide some protection to Respondent's employees against hearing loss. As discussed above, however, such hearing loss as will occur is not life-threatening and, in all but the most extreme cases, will not be seriously debilitating. On balance, we think [*22] that the benefits to be gained do not justify the cost of the controls, and that engineering controls are therefore not economically feasible.

Accordingly, the citation for violation of 29 C.F.R. 1910.95(b)(1) is vacated.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

Judge Cronin properly concluded in his decision, which is attached hereto as Appendix A, that complainant failed to establish that it was technologically feasible for respondent to have installed engineering controls before the inspection which would have reduced the noise in respondent's facilities to acceptable levels as specified in Table G-16. n18 I therefore disagree with the conclusions to the contrary in the lead opinion. Nevertheless and even though I am unable to agree with Chairman Barnako's analysis regarding economic feasibility, I do agree with his conclusion that complainant's case is fatally defective because he has not established that the implementation of engineering controls was economically feasible.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n18 See Secretary v. Reynolds Metals Co., OSAHRC Docket No. 4385, December 10, 1975 (concurring opinion).

[*23]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The foregoing opinion erroneously makes the assumption that the protection that will be afforded to respondent's employees by the continued use of personal protective hearing devices will not be as great as the protection that could be derived from the institution of engineering controls. The evidence in this case, in my view, does not support this assumption.

The evidence reveals that the personal protective hearing devices that respondent supplies to its employees reduce the sound levels to which employees are exposed by more than 20 dBA. When wearing these devices, employees working in the noisiest location in respondent's plant, where sound levels range up to 103+/-2 dBA, are thus exposed to sound levels that are significantly less than the 90 dBA level permitted for an eight-hour-day by the cited standard. In contrast, the evidence does not establish with any certainty that the suggested engineering controls would even be successful in reducing noise to 90 dBA, the maximum allowable level for eight hours of exposure. n19 Even if this goal is achieved, the attenuation in noise that could be produced [*24] by engineering controls is likely to be significantly less that the attenuation that is presently produced by the personal hearing devices. Thus, relying on controls in lieu of personal hearing devices is likely to diminish rather than enhance the degree of hearing protection provided for employees.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n19 Although respondent's expert believed that controls would produce a reduction to within permitted levels, complainant's expert was uncertain that this goal could be achieved. The Judge found only that the suggested controls "are expected to reduce noise levels to permissible limits" (emphasis supplied) and not that they would in fact do so.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In assessing the costs and benefits of suggested controls, the relative effectiveness of available alternatives, that is personal hearing devices, should be considered. Thus, what should be examined to determine the economic feasibility of suggested controls is the cost of such controls in relation to the benefits they can be expected to produce over the personal protective [*25] equipment in use. As the evidence in this case shows that the degree of attenuation afforded by personal hearing devices in use is equal to or greater than that which can be achieved by engineering controls, n20 the health and safety benefits to be derived by employees from such controls are minimal or nonexistent. n21 There is therefore no sensible reason for compelling large outlays for engineering controls, nor would doing so be consistent with the Act's sole reason for existence: the protection of employees from workplace hazards.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n20 When employees are adequately protected from prohibited noise levels by personal protective equipment, there is no violation of 29 C.F.R. § 1910.95(b)(1). Secretary v. Turner Co., OSAHRC Docket No. 3635, August 24, 1976 (dissenting opinion).

n21 For the reasons why the claimed infirmities of personal protective hearing devices referred to in the opinion of Chairman Barnako are insubstantial and unconvincing, see the opinion of Judge Burchmore in Secretary v. Continental Can Co., OSAHRC Docket No. 3973, October 1, 1974.

- - - - - - - - - - - - - - [*26] - - -End Footnotes- - - - - - - - - - - - - - - - -

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

Like another decision concerning the standard published at 29 CFR § 1910.95(b)(1) recently issued by the Commission, Great Falls Tribune Co. (No. 6632, May 19, 1977), the majority's action in this case is consistent with the interpretation of the cited standard given in our divided decision in Continental Can Co., Inc., supra. The difficult problems presented in these cases, and their analysis by the majority demonstrate the fundamental inadequacies of Continental Can, which should be overruled.

It is undisputed that respondent's can plant employees were exposed to noise levels of 98-101 dBA in most locations, and that its cannery employees were exposed to noise levels of 95-96 dBA. The record also establishes by a preponderance of the evidence that existing engineering controls could be readily adapted by respondent to reduce these noise levels to or below 90 dBA, the maximum level permitted for an eight-hour work day. Despite concluding that respondent's employees will suffer hearing loss as a result of exposure to the noise in respondent's plant, a loss that could [*27] be eliminated or reduced by use of the proposed engineering controls, the majority permits the exposure to continue because the majority concludes that available engineering protection is too costly. Careful examination of the support for the conclusion indicates that the majority is not applying a meaningful "cost-benefit analysis." n22

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n22 As suggested in Continental Can (dissenting opinion) the use of any cost-benefit analysis is not contemplated by the standard. Nevertheless costing is relevant in setting an equitable period for abating a noise hazard.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The per can-plant-employee cost of engineering controls calculated by the majority is $4,200. This figure is based upon the exposure of 210 employees, the average number of persons employed full-time by respondent. During the pineapple season, (July and August) n23, however, when respondent's plant is in heaviest operation, respondent employs an additional 110 to 140 persons. The majority does not count these employees when calculating per employee costs [*28] because they work less than a full year. Footnote 16, supra.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n23 The inspection was conducted during the month of August.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Occupational Safety and Health Act of 1970 states at section 2(b), 29 U.S.C. § 651(b), that the purpose of the Act is ". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . (emphasis added)." This statement of purpose does not exclude seasonal workers. Neither does the Secretary's noise standard, quoted in footnote 1, supra.

Even if the majority's figures were accurate, the analysis is deficient. Although the noise level in respondent's cannery is 2 to 6 dBA lower than that in the can plant, and would require a per employee expenditure of $700 less than that required to reduce the noise level in the can plant by installation of engineering controls, the same cost-benefit analysis is applied to both locations on the belief that the difference in cost and noise reduction "balance out." Footnote 17, supra. The [*29] Commission noted in Continental Can Co., supra, that a difference in noise levels of 3 dBA is equal to a difference in air pressure in one's ears of 50 per cent. Thus, the majority is stating, in effect, that a potential difference in noise reduction of 6 dBA, or approximately 75 percent in air pressure, is worth less than $700 per employee. Virtually no analysis accompanies this assignment of value.

Effective cost-benefit analysis is a complex, multi-faceted procedure. See, e.g., E. J. Mishan, Economics For Social Decision: Elements of Cost-Benefit Analysis (1972); V. Novozhilov, Problems of Cost-Benefit Analysis In Optional Planning (1970). Yet the only factors considered by the majority are the cost of, and noise reduction anticipated by the use of, personal protective equipment and the cost of and noise reduction anticipated by the use of engineering controls. The record does not permit consideration of other pertinent information, such as the tax consequences of a capital expenditure by respondent; potential increased work by exposure to permissible noise; possible reduction in respondent's expenditures in maintaining a hearing conservation and [*30] monitoring program; n24 possible reduction in premiums for workmen's compensation insurance; etc. n24a

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n24 Although the Chairman states that this cost was considered by him, no dollar figures are specified.

n24a The factors mentioned in this paragraph suggest that comprehensive cost-benefit analysis is something better considered in the Secretary's rulemaking procedures rather than our adjudications. The analysis is inherently time-consuming, and impairs speedy adjudications. The legislative history contemplates speedy adjudications by the Commission. Leg. History of Occupational Safety & Health Act of 1970, 92d Cong. 1st Sess., p. 392 (June 1971) [Committee Print].

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Noting that both engineering controls and ear plugs supply adequate protection, n25 the majority merely divides the cost of personal protective equipment and the cost of engineering controls by the number of affected employees. Upon discovering that the former quotient is less than $5 per employee and the latter is over $3,500 per employee, the [*31] majority considers the engineering controls to be economically infeasible.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n25 Commissioner Moran uses the same analysis as does the Chairman. He merely assigns greater benefits to respondent's employees' use of personal protective equipment than does the Chairman.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

II.

Although the majority's result is within the structure of Continental Can Co., supra, it in effect eliminates the standard's expressed priority requiring use of engineering controls before resort to personal protective equipment is permitted in order to comply with the standard. It is impossible to conceive of a situation where engineering controls would cost less than ear plugs. This suggests that costs are not an element of what is feasible because if costs were an element, the use of earplugs would always have priority. Compare the Supreme Court's reading of the term "feasible and prudent" in Citizens to Preserve Overton Parks v. Volpe, 28 Ad. L. (2d) 210 (U.S. 1971). The Commission has no power to rewrite the Secretary's standards [*32] because it considers a different standard to be preferable. Budd Co., 1 BNA OSHC 1548, 1973-74 CCH OSHD para. 17,387 (Nos. 199 & 215, 1974), aff'd. sub nom. Budd Co. v. OSAHRC., 513 F.2d 201 (3d Cir. 1975).

III.

Although the majority purports to apply a cost-benefit analysis, the full range of benefits that would be derived from the implementation of engineering control is not considered. The primary benefit to be derived from their use, of course, is the prevention of hearing loss, which is not fully calculable in monetary terms. The majority notes this benefit, along with two easily quantifiable benefits: removal of the expenses of (1) personal protective equipment and (2) maintaining a hearing conservation program. In footnote 15, supra, the majority discounts the importance of the fact that two of respondent's employees filed workmen's compensation claims because the disposition of the claims was not in the record. Because the majority purports to be developing an economic feasibility test that is national in scope, however, the savings, in terms of administrative costs and actual payments, to be derived from the reduction in workmen's compensation claims [*33] must be considered. n26 This benefit could amount to a considerable savings, as my example in Great Falls Tribune Co., supra, indicates. There are other, nonquantifiable benefits which the majority also fails to consider.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n26 This further suggests that this is a subject matter for rulemaking rather than adjudication. See also National Labor Relations Board v. Wyman-Gordon Co., 394 U.S. 1426 (1969).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The evidence shows that employees may suffer hearing loss even if an effective hearing conservation program is administered. Some employees will not always wear ear protectors, and others will not receive full protection from them due to improper fitting or use. See footnote 5, supra. For employees who do not receive the full benefit of personal protective equipment, a reduction in ambient noise levels to or below 90 dBA from over 95 dBA is highly beneficial. See Continental Can Co., supra.

Exposure to excessive noise also may have adverse effects on employees that are unrelated to hearing [*34] loss and that can be relieved by a reduction of noise levels. Noise may cause harmful changes in cardiovascular, endocrine, and neurologic functions. See generally NIOSH Criteria Document at IV 10-V 16, of which I would take official notice. n27 Complaints of fatigue, irritability, and social conflict as a result of exposure to excessive noise have been documented. A consequent reduction in job performane also has been recorded. See generally NIOSH Criteria Document at IV 9-14.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n27 There is substantial uncertainty among scientific authorities as to the strength of the causual relationship between exposure to excessive noise levels and these changes. This uncertainty is typified by NIOSH observations such as the following:

The fact that those who work in high noise levels show greater medical difficulties than those who work under quieter conditions is not conclusive evidence that noise is the crucial causal factor. In each case, it is possible that the differences in the specified health parameters may be explained by other factors such as age, other environmental contaminants, work load and job habits. NIOSH Criteria Document at IV-11.

[*35]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -