ANCHOR HOCKING CORPORATION
OSHRC Docket No. 3783
Occupational Safety and Health Review Commission
July 22, 1975
[*1]
Before MORAN, Chairman; and CLEARY, Commissioner
OPINION:
BY THE COMMISSION: A decision of Review Commission Judge James A. Cronin, Jr., dated February 14, 1974, has been before this Commission for review pursuant to 29 U.S.C. § 661(i) for more than a year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide this case at this time.
The members of the Commission are equally divided on the Judge's disposition of this case. Chairman Moran would affirm for the reasons given in the Judge's opinion. Commissioner Cleary's views are set forth in his separate opinion.
Accordingly, the decision of the Judge is affirmed by an equally divided Commission. This decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (1975).
CLEARY, COMMISSIONER: Judge Cronin's decision holds that the Secretary of Labor had failed to establish that there were any feasible engineering or administrative controls presently available which could be implemented in respondent's forming department of its glass container plant No. 10, Vernon, California, which [*2] would reduce noise levels to those compatible with 29 CFR § 1910.95 -- Table G-16. The Judge concluded that the word "feasible" as used in Occupational Safety and Health Standard 29 CFR § 1910.95(b)(1) n1 required that before a violation of the standard could be established, any engineering or administrative controls that could be implemented, either individually or in combination, would have to reduce noise levels in the area surrounding exposed employees to those set out in Table G-16. Thus, he dismissed the Secretary's complaint and vacated citation item No. 3, the alleged nonserious violation of 29 CFR § 1910.95(b)(1). Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the full Commission.
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n1 29 CFR § 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.
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There is no substantial dispute about the facts in this proceeding. On April 18, 1973, complainant's duly authorized representative conducted an inspection of respondent's forming department, plant 10, Vernon, California. The inspection was conducted to determine whether employees working in the forming department were exposed to impermissibly high noise levels without the benefit of all feasible engineering and administrative controls. n2 Stipulated noise level reading revealed that glass-forming machine operators, upkeepmen and floormen were exposed to noise levels in excess of those authorized by Table G-16. n3
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n2 Respondent's use of available personal protective equipment is not disputed.
n3 Respondent recognized and candidly admitted that noise levels of up to 105 decibles for substantial periods were not unusual in the forming department of the Vernon Plant.
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Pursuant to this inspection the Secretary issued citation item 3 for [*4] nonserious violation of 29 CFR § 1910.95(b)(1) n4 Item 3 was duly contested by respondent by letter dated July 17, 1973. Complaint and answer were filed and the case came on for a hearing before Judge Cronin on November 15, 1973.
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n4 The citation also alleged violations of 29 CFR § 1910.212(a)(5) and § 1910.134(f)(1). Respondent did not contest either of these items and they have become final orders of the Commission pursuant to section 10(a) Occupational Safety & Health Act of 1970 (29 U.S.C. § 651 et seq. ).
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There is evidence that a "man-enclosure" or partial or complete barrier similar to a telephone booth could be constructed for use by respondent's operators. This would reduce exposure for approximately 25 percent of an operators' day although not necessarily to a level required by Table G-16.
Essentially, the Secretary argues that compliance with section 1910.95(b)(1) requires implementation of all available administrative or engineering controls that are useful in reducing employee exposure [*5] to excess noise levels, even though their implementation singularly, or in combination, does not reduce the levels to those listed in Table G-16.
Respondent's position, and that which was adopted by Judge Cronin, is that "feasible administrative or engineering controls" were required only when their use would reduce noise levels surrounding exposed employees to those required by Table G-16. Respondent contends that required use by employees of personal protective equipment which of itself reduces employee exposure to excess noise levels to levels compatible with Table G-16 is enough. Moreover, to require the implementation of only partially effective administrative or engineering controls is said to require a useless act.
I read section 1910.95(b)(1) to require the use of feasible administrative or engineering controls whenever employees are subjected to sound levels exceeding those specified in Table G-16. This is the "plain wording" of the standard.
The standard further requires that if "feasible" administrative or engineering controls fail to reduce sound levels within the prescribed limits, personal protective equipment shall also be provided and used. The standard does [*6] not say that there is no duty to use "feasible" administrative or engineering controls in the event of such failure. The clear import of the text is that in the event of such failure the administrative or engineering controls would be complemented by the use of personal protective equipment.
The standard, however, requires only the use of "feasible" administrative or engineering controls. I agree with respondent that the word "feasible" requires only what is practicable or useful under the circumstances. This is the ordinary meaning of the word "feasible."
There is no requirement for the use of administrative or engineering controls when their use would be impractical. In a situation where such controls are impractical and therefore need not be used, I read the standard as nevertheless requiring the use of personal protective equipment. Since the standard explicitly requires the use of such equipment when "feasible" administrative or engineering controls fail to reduce noise levels to the prescribed limits, the standard implicitly requires the use of such equipment when no administrative or engineering controls are feasible or practicable.
In the instant proceeding [*7] the Secretary has established that the use of an acoustical man-enclosure would provide some protection to the forming-machine operators when they are not physically working on the machines. n5 Moreover, respondent is in agreement at least partially with complainant's position. Thus, respondent's expert witness and its Technical Director of Environmental Affairs agreed that the use of man-enclosures would provide some protection to employees from the high levels of noise in the forming area. Indeed, respondent had used man-enclosure booths at another plant and withdrew them not because they were ineffective but because of asserted employee resistance to them.
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n5 With respect to the upkeep and floormen the record does not reveal extended periods of time when men performing these jobs would be able to take advantage of the man-enclosures. To require man-enclosures for the men in these two job classifications would be to require an impractical engineering control.
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I conclude that the use of man-enclosures by respondent's [*8] forming-machine operators is a "feasible" engineering control of the type contemplated by 29 CFR § 1910.95(b)(1). In reaching this conclusion I note that the enclosures may be used up to 25 or 30 percent of the time an operator is exposed to excessive noise and will not interfere with production. Also, the record indicates that enclosures of this type are commercially constructed (prefabricated devices) and locally marketed.
Accordingly, I would affirm item 3 of the citation insofar as it applies to respondent's forming-machine operators.
[The Judge's decision referred to herein follows]
CRONIN, JUDGE: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereafter called the Act) contesting Item #3 of an amended citation issued by the Complainant against the Respondent on June 28, 1973. The amended citation was the result of an inspection of Respondent's plant at 4855 East 52nd Place, Vernon, California, conducted by the U.S. Department of Labor on March 8 and 15, 1973. n1
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n1 Citation states inspection took place March 8 and 15, 1973 but testimony of Compliance Officer and Secretary's Exhibit No. 1 indicates inspection was on April 18, 1973.
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The alleged violation of 29 C.F.R. § 1910.95(b)(1), characterized as "non-serious," and the proposed period for its abatement, were described in the citation as follows:
Description of alleged violation
Feasible engineering of administrative controls have not been utilized to the extent necessary to reduce the following source exposures to within the noise intensity and the time durations as given by Table G-16.
a. Glass forming machines operators
b. Glass forming machines upkeepman
c. Glass forming machines floormen
Date by which alleged violation must be corrected
1. Research and study engineering and administration controls with submission of monthly progress reports.
2. Submit Final Study Report on control implementation no later than 12/26/73.
3. Install feasible administrative controls in accordance with installation dates given in Final Study Report. Monthly progress reports shall be submitted during the multi-step noise control installation period.
4. In any event, all feasible engineering and/or administrative controls shall be installed prior to 11/25/74. [*10]
The complaint alleges a violation of 29 C.F.R. § 1910.95 in the following manner:
On March 8 and 15, 1973, respondent violated the standard set forth at 29 C.F.R. 1910.25, in that respondent failed to utilize feasible engineering and administrative controls to reduce sound levels within the levels of Table B-16 in the area of the glass forming machines.
The standard as promulgated by the Secretary of Labor 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.
No penalty for this alleged violation was proposed by the Secretary of Labor.
The hearing took place on November 15, 1973 at Los Angeles, California, with both parties subsequently filing briefs.
SUMMARY OF EVIDENCE
Respondent at the outset of the hearing conceded, by way of stipulation, that the sound levels in the Forming Department of Respondent's glass container plant #10 at Vernon, California exceed 90 dBA for a typical [*11] eight-hour work day. On the day of inspection, Industrial Hygienist Lehi Pitchforth, Jr. took sound level readings with a calibrated General Radio sound level meter for one hour on both sides of the glass manufacturing operating lines in the Forming Department in locations where employees were observed working. The corrected sound level readings taken near the forming machines ranged from 98 to 103 decibels on the A scale of the meter, all as indicated on Secretary's Exhibit No. 3.
The normal employee complement for a daily working period in the Forming Department is five machine operators, two upkeep men, two floor men, and one shift mechanic. During a typical work day, a "job change" crew and packing room inspectors also may periodically come into the Forming Department.
Forming Department work assignments require the employees, with the exception of the mechanic, to be in the Forming Department for approximately seven out of the eight hours of a shift. Because of the high sound levels Respondent has had a mandatory hearing protection program in effect for three years and all employees working within the Forming Department are provided with, and wear, Swedish wool or ear plugs. [*12] No tests were made by the Compliance Officer to determine whether the employees wearing the personal protective equipment were still subjected to excessive sound levels or examination made as to whether the equipment was worn properly.
Hygienist Pitchforth did not observe any engineering controls being used to reduce the excessive sound levels but was unable to testify that there weren't any. In his opinion there are two possible ways that the Forming Department employees could have been protected from the excessive sound levels; a partial enclosure of the forming machines with sound deadening materials, and a partial enclosure or barrier near the machine behind which employees could spend their time when not physically working on the machine. During a typical work day a machine operator observes his machines a total of approximately 2-1/2 hours.
Hygienist Pitchforth, who previously had never inspected a glass manufacturing plant, is of the opinion based on his "reading" that the noise level within these "man" enclosures could be reduced below 90 decibels.
Ronald R. Ott, Regional Industrial Hygienist and Special Assistant in Occupational Health to the Assistant Regional [*13] Director, Occupational Safety and Health Administration, testified that on the basis of the testimony of Messrs. Floyd, Hood, Massey, Planck and Pitchforth he was unable to reach any conclusion regarding whether the use of a machine enclosure at Respondent's plant would be a feasible engineering control. In his opinion, however, based on this same testimony for the operator, upkeep and floor men, although his "impression" with respect to the latter two classifications is not as "clear." He believes such an enclosure to be a "feasible" engineering control, as that term is applied under the standard; in his words, "the use of a man enclosure appears to be a plausible means considering the testimony that has been given."
Mr. Lewis S. Goodfriend, a consultant engineer in acoustics who has conducted noise studies for the Respondent since late 1968, testified that he inspected plant #10 in December 1970 and found that the noise sources in the Forming Department came primarily from the compressed air used in the glass forming machines. Mold cooling air is created by fans (also noise sources) and then directed at the molds and glassware. The noise occurs at the time of impingement. Substantial [*14] noise also takes place when the control air is released during the machine's operation.
As a result of Mr. Goodfriend's previous studies at another Respondent plant, mufflers were recommended and placed on the inlet and discharge ports of the mold cooling air fans in plant #10. The reduction of the sound level in decibels, however, "has not been great" due to the continued presence of the noise resulting from the cooling air's impingement on the mold. His studies also indicate that even if all the noise from the operating air system and fans was removed, only a 3 decibel reduction in the sound level could be accomplished because of the mold cooling air noise. According to Mr. Goodfriend, there is presently no known system for controlling the impingement noise on the mold and this noise by itself will keep the noise level of the forming machine above 90 dBA, between 95 to 100 dBA.
With respect to the use of a man enclosure as suggested by Messrs. Pitchforth and Ott, Mr. Goodfriend is of the opinion that while this method would achieve a reduction in the sound levels, they would not be reduced to the permissible levels set forth in Table G-16 of the standard.
Mr. Robert [*15] Arthur Daly, Engineering Manager of Research and Special Projects for the manufacturer of the glass forming machines at Respondent's plant, in response to the question whether a machine enclosure would be a feasible engineering control, testified that the use of a machine enclosure would pose a considerable engineering problem with respect to exhausting the resultant contaminated air.
Industrial Acoustics Company, Inc., a company consulted by Respondent, advised that machine enclosures were not feasible at plant #10, namely because of the oily fumes and heat involved, and that machine enclosures would create a fire hazard.
According to Mr. Lloyd E. Garner, Respondent's Technical Director of Environmental Affairs, the Respondent has spent in excess of $241,000 during the last three years on noise control at plant #10. The expenditure involved consultant fees, design changes in the mold cooling, furnace, and man cooling, fans and acoustical treatment of the building.
At the present time Respondent has a research and development project aimed at reducing the noise level resulting from mold cooling and approximately two months prior to the hearing Respondent started an "investigation [*16] for design" project for man enclosures.
The Respondent, 5 or 6 years ago, tried the man enclosure method at its Lancaster, Ohio tableware plant, but the employees would not use it and physically threw the enclosures into a corner. According to Mr. Garner, a noise level reduction was achieved with these booths but not down to the 90 dBA level.
DISCUSSION
On this record, the Secretary of Labor has failed to carry his burden of proving that Respondent violated 29 C.F.R. § 1910.95(b)(1).
This standard is interpreted as requiring employers to utilize only those engineering and administrative controls which individually, or in combination, are capable of reducing noise exposure levels to the permissible limits set forth in Table G-16.
The Secretary disagrees with this interpretation and contends that the standard also requires the use of feasible engineering and administrative controls even if the said controls would not reduce the noise levels to the permissible limits of Table G-16. n2 We would point out, however, that the citation's charge that Respondent failed to utilize feasible engineering and administrative controls "to the extent necessary" to reduce the existing [*17] sound level exposures to those of Table G-16, as well as the complaint's allegation of violation, appear in harmony with this interpretation.
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n2 Secretary's Brief, pp. 5-6.
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For the citation in this case to be affirmed, the Secretary first must prove that there are engineering and/or administrative controls available for utilization which are capable of reducing noise exposure levels to those permitted by Table G-16. He was unable to satisfy this obligation.
The Secretary's presentation relies on the sole theory that Respondent's failure to use machine and "man" enclosures constitutes a violation of the standard. No evidence was introduced by the Secretary concerning feasible administrative controls that should have been utilized by the Respondent.
Hygienist Pitchforth's opinion that enclosures around the glass forming machines constitute feasible engineering controls, while sincere, is speculative, ill-founded, and intrinsically unpersuasive; even his fellow hygienist, Ronald Ott, was unable to give it his support. [*18] The Respondent's evidence, moreover, refutes the proposed theory of machine enclosure utilization in the Forming Department of Plant #10. Further, the Secretary himself presumably has abandoned his original contention in this regard because no mention of it is contained in his brief.
The evidence does establish that man enclosures are feasible for use by forming machine operators during the period (totalling approximately 2-1/2 hours) when they are not physically working on or near the machines. However, the evidence fails to establish that the enclosures' use would bring the overall employee noise exposure within the permissible limits set forth in Table G-16 or reduce the sound level within the enclosure below 90 dBA. n3 Accordingly, on this record, Respondent can not be found in violation of § 1910.95(b)(1). In view of this finding, no ruling on the Respondent's motion for a directed verdict is necessary.
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n3 On this point, the testimony of Messrs. Goodfriend and Garner is preferred, and accepted, over Hygienist Pitchforth's.
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Although the Secretary failed to sustain his evidence of proving a violation in this case, Respondent's investigation into the possible use of man enclosures is considered prudent and should be continued.
FINDINGS OF FACT
On the entire record the following facts are found:
1. On the day of inspection, the sound levels in the Forming Department of glass container Plant #10 at Vernon, California, exceeded 90 dBA for 8 hours. Sound levels near the glass machines ranged from 98 to 103 dBA.
2. During a typical work day 9 employees are present in the Forming Department for approximately 7 hours and would be subject to sound exceeding the permissible limits listed in Table G-16 if personal protective equipment was not worn.
3. All employees whose work assignments require their presence in the Forming Department wear personal protective equipment which reduces their sound level exposure to the permissible limits listed in Table G-16.
4. During the last three years the Respondent has spent in excess of $241,000 on noise control at Plant #10. Expenditures were made for engineering studies, consultant fees, design changes in mold cooling, furnace and [*20] man cooling, fans and acoustical treatment of the building.
5. The primary noise sources in the Forming Department are the impingement of cooling air on the molds and ware and the release of the operating air.
6. Presently, there is no known system for controlling the impingement noise created by the mold cooling air and this noise source alone will keep the hoise level of the forming machine between 95 to 100 dBA.
7. Utilization of forming machine enclosures is not feasible because of the presence of oily fumes and heat, and the possible creation of a fire hazard.
8. Man enclosures are feasible for use by forming machine operators during the periods (totalling approximately 2-1/2 hours) when they are not physically working on or near the machines.
9. The noise level within the man enclosures would exceed 90 dBA.
10. The use of man enclosures would not bring the overall employee noise exposure within the permissible limits listed in Table G-16 and all employees assigned to the Forming Department would be required to use personal protective equipment.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in a business affecting commerce within the meaning [*21] of Section 3(5) of the Act and obliged to comply with those standards promulgated under Part 1910, Title 29, Code of Federal Regulations.
2. On the date of inspection, Respondent was not in violation of 29 CFR § 1910.95(b)(1).
ORDER
Based on the foregoing findings, conclusions of law, and the entire record, it is ORDERED that: Item 3 of the amended citation issued on June 28, 1973, alleging a violation of 29 CFR § 1910.95(b)(1), and any penalty based thereon, are hereby VACATED.