SECRETARY OF LABOR,

Complainant,

v.

GULF AND WESTERN, ENERGY PRODUCTS
GROUP, BONNEY FORGE DIVISION,

Respondent.

INTERNATIONAL ASSOCIATION OF
MACHINISTS, LOCAL LODGE 1830,

Authorized Employee
Representative.

OSHRC Docket No. 79-4053

DECISION

Before: FOULKE, Chairman; MONTOYA; and WISEMAN,Commissioners.
BY THE COMMISSION:

At issue in this case is one citation alleging that Gulf and Western Energy Products Group, Bonney Forge Division ("Bonney Forge"), exposed thirteen employees to excessive levels of noise during the manufacture of pipe fittings and elbows at a facility in Allentown, Pennsylvania. Item 1a of the citation alleges that six employees in the machine shop and three employees in the production grinding area were "not provided" with "[p]rotection against the effects of" noise exposures exceeding those listed in Table G-16 of 29 C.F.R. § 1910.95(a).[[1]] These employees were not required to use, and at the time of the alleged violation were not in fact using, personal protective equipment such as ear plugs or ear muffs. Item 1b of the citation further alleges that these employees and four others in the forge shop (where personal protective equipment was required and used) were "subjected to sound levels exceeding those listed in Table G-16" because "feasible administrative or engineering controls were not utilized" as required by 29 C.F.R. § 1910.95(b) (1). [[2]]

Bonney Forge contested the citation and the case came before former Administrative Law Judge Benjamin G. Usher for a hearing. During the hearing and in its post-hearing brief, Bonney Forge contended that the alleged violations should be vacated because the Secretary of Labor had failed to meet his burden of proving:

(1) That all thirteen employees were exposed for impermissible durations to noise at excessive levels;

(2) That Bonney Forge knew or with reasonable diligence should have known of any excessive noise levels or durations of exposure;

(3) That Bonney Forge did not provide hearing protection to employees in the machine shop and production grinding area;

(4) That the implementation of engineering controls capable of reducing the noise to permissible levels would have been technologically feasible;

(5) That those engineering controls would have been economically feasible;

(6) That the abatement dates specified in the citation were reasonable.

In his decision, Judge Usher addressed only the first matter: he decided that the Secretary did not prove exposure to excessive noise levels for impermissible durations. On this basis he vacated the citation, noting that employers have no duty to comply with either of the cited standards unless employees are being exposed to daily noise doses greater than those permitted in Table G-16.

The Secretary seeks reversal of the judge's decision on the basis that it is contrary to the preponderance of the evidence. We have closely examined the record and the judge's findings, and we conclude that the preponderance of the evidence, fairly weighed, does establish the alleged overexposures to noise. Accordingly, we reverse the judge's decision and remand the case for disposition of the remaining five matters raised by Bonney Forge, as listed above.

As we have indicated, Table G-16 establishes permissible noise exposures, which are maximum daily doses delimited by decibel level ("dBA") and time. Exposure to 90 dBA of noise is permitted for as long as 8 hours, but at higher noise levels the time limits progressively shorten. For example, at 95 dBA the daily time limit is 4 hours. If noise levels fluctuate throughout a day, as they do in many workplaces, overexposure can be determined by adding up the several exposure times in the manner specified by a formula, which is set out in the table's footnote (see note 1 supra).

There are two instruments that the Secretary's Occupational Safety and Health Administration ("OSHA") can use to measure an employee's noise exposure. One is a sound level meter and the other is a dosimeter.

The sound level meter consists of a microphone to detect noise and a meter to point out the instantaneous noise level. To use a sound level meter to show that an employee is exposed to excessive noise for impermissible durations, OSHA would have to measure the noise level in the employee's hearing zone over a substantial period of time and show (1) that a particular noise level listed in Table G-16 was exceeded for the corresponding exposure time (e.g., that the employee was exposed to 90 dBA for more than 8 hours), (2) that for a particular time period listed in Table G-16 the noise level exceeded the corresponding permissible limit (e.g., that throughout an 8-hour period the employee was consistently exposed to at least 90 dBA), or (3) that the cumulative exposure times at various noise levels amounted to overexposure under the formula.

The dosimeter includes a microphone to detect noise; however, instead of a meter pointing out the instantaneous noise levels, the dosimeter feeds the noise data as it accumulates into additional circuitry which automatically applies the formula. Thus, the dosimeter can handle fluctuating noise levels accurately and efficiently since it eliminates the need to record the length of time an employee is exposed to each measured noise level and the need to perform the calculations of the formula. A dosimeter reading of over 100% indicates that the noise is in excess of permissible limits. See Collier- Keyworth Co., 13 BNA OSHC 1208, 1210-11, 1986-87 CCH OSHD ¶ 27,867, pp. 36,509-10 (No. 80-2848, 1987), vacated per stipulation, No. 88- 2140 (1st Cir. March 22, 1989) (describing measurement of noise using sound level meters and dosimeters).

In this case, an industrial hygienist from OSHA obtained dosimeter readings that exceeded 100% for all thirteen employees. The industrial hygienist also took sound level meter readings to represent two noise conditions to which the employees were exposed: the background noise at their work stations, whenever their own machines or processes were not operating, as well as the operating noise arising whenever their own machines or processes were operating along with other machines and processes. These sound level meter readings revealed that, during normal operations, the noise levels reaching each employee's ears as he worked at his work station generally exceeded 90 dBA--often by a considerable amount.

From the dosimeter readings, the industrial hygienist computed each employee's "equivalent DBA." That is, the hygienist computed the constant noise level that would have produced the dosimeter reading. For example, a dosimeter would give a reading of 400% if worn for 6 1/2 hours in noise measuring a constant 102 dBA (which, as the following table indicates, is the equivalent dBA for employee Wilt, who worked in the production grinding area, where the actual noise measured by sound level meter fluctuated between 80-100 dBA of background noise and 103-107 dBA of operating noise).

The entire results of the hygienist's measurements and calculations are shown in the following table. [[3/]]   As it shows, the equivalent dBA for each employee is within the range of his sound level meter readings:

As can be seen from the table, the industrial hygienist's sound level meter readings are consistent with the dosimeter readings.

II

In vacating the citation, Judge Usher concluded: "I am not persuaded by the testimony that Respondent's employees were subjected to sound levels in excess of those prescribed in [Table G-16]" inasmuch as "[t]he record affords much room for doubt." The judge's key finding as to the source of doubt is stated as:

The means and methods employed by [the industrial hygienist] in the collection and recording of the sound level data at the various work stations were imprecise, confused, fraught with inconsistencies and consequently were rebuttably unreliable.

Leading up to this finding is a discussion in which Judge Usher identified nine reasons for discrediting the industrial hygienist's results:

(1) The industrial hygienist's failure to take readings throughout a full 8-hour shift for each of the thirteen employees, i.e., the failure to make "full-shift" measurements;

(2) His failure to insure that the noise collected by the dosimeters was "emitted by the operations performed by the employees at their work stations and that noise alone";

(3) His uncertainty about the times during which employee exposure to excessive noise was detected throughout the day;

(4) His overall lack of experience and training in noise measurement and control;

(5) His concession that three out of the six dosimeters used to measure noise exposure in the machine shop were not within tolerable limits upon calibration before and after use;

(6) His failure to observe that all of the dosimeter microphones remained in their proper position on the thirteen employees throughout the sampling period;

(7) The possibility that his dosimeters took readings of noise at levels below 90 dBA.

(8) His failure to adjust his readings to compensate for impact noise; and,

(9) His failure to apply an error tolerance factor greater than 2 dBA to counteract the possible effects of high frequency noise on the measured overexposures.

A. Commission Precedent Upholding Use of Dosimeters

The first three of the judge's rationales are inconsistent with Commission precedents, which have correctly held such reasoning to be unsound. With respect to the first rationale, the Commission has held that full-shift measurements are not always necessary in order to establish overexposure to noise. Sun Shipbuilding & Drydock Co., 2 BNA OSHC 1181, 1182, 1974-75 CCH OSHD ¶ 18,537, p. 22,518 (No. 268, 1974). The soundness of the Commission's precedent is evident. If the Secretary can show that an employee is exposed to more noise in a fraction of a workshift than is permitted for a full shift, there is clearly no need for measurements to continue throughout the remainder of the shift.[[4]]

The second rationale is untenable because the Commission has held, properly, that the standard regulates the total noise to which an employee is exposed, not simply the noise from the employee's own machine or process. See Collier-Keyworth, 13 BNA OSHC at 1223, 1986-87 CCH OSHD at p. 36,522.[[5]] OSHA need not separate out the noise to which an employee is subjected by surrounding operations or processes. The third rationale is unsound because the missing data is entirely superfluous. Dosimeters automatically take into account how long the employees are exposed to particular noise levels. See Collier-Keyworth, 13 BNA OSHC at 1210-11, 1986-87 CCH OSHD at pp. 36,509-10. There is therefore generally no need for an industrial hygienist to keep a separate record of the time periods that employees were exposed to the particular noise levels.

B. The Industrial Hygienist's Sampling Practices

The next three rationales (Nos. 4 through 6) are frivolous, for there is no evidence of any problem from them. As to rationale No. 4, although the industrial hygienist was young, slightly trained, and lacking in overall experience, it does not follow that his readings in this case are inaccurate. Michael P. McSherry had been an OSHA industrial hygienist for almost two years. He had a degree in biology and had taken OSHA's industrial hygiene courses, one of which covered use of sound level meters and dosimeters. Moreover, he testified that he restudied the dosimeter manufacturer's instructions before taking the readings that are at issue in this case. A first attempt to take readings had not been successful because he neglected to install batteries and unlock reset devices. Therefore, he testified, he restudied the instructions before making the second attempt.

Use of dosimeters to measure noise doses minimizes the degree of expertise needed. Dosimeters must be properly calibrated and used. However, as we will discuss in greater detail in the next paragraph, the industrial hygienist testified that he did properly calibrate and use the dosimeters to obtain the readings at issue in this case, and there is no evidence in the record of mistakes affecting those readings. Those readings are generally consistent with his readings by sound level meter, an instrument that even Bonney Forge's expert agreed "requires little training" and is "pretty easy to use." [[6]]

Industrial hygienist McSherry's concession concerning calibration of three of the six dosimeters provides no support for the judge's holding in this case. The industrial hygienist did not make any calibration errors that produced readings higher than actual noise levels; therefore, rationale No. 5 has no merit. On direct examination, the industrial hygienist testified that he calibrated each dosimeter twice, both before its use and again after reading out the results. On cross-examination, Bonney Forge's counsel asked about calibration results that might indicate a failure to come within tolerable limits. However, his questions did not elicit any testimony acknowledging any problem with the dosimeters other than the following, concerning three dosimeters used in the machine shop: "Looks like a couple of them are reading a little bit low." As a concession, this is certainly not a detrimental one, for it meant that the dosimeters registered a lower exposure than actually existed; thus, any error only accrued to the benefit of Bonney Forge.

Finally, in examining the judge's sixth rationale, we find no indication that any of the microphones connected to the dosimeters were improperly positioned on the employees at any time during the sampling period. The record demonstrates that the industrial hygienist conformed to accepted OSHA and industrial hygiene practices in attaching the microphones to the shirt collars of those employees who had collars and to the shirt shoulders of those employees without collars. Two employees testified that they needed adjustments to be made to the wire clipped to their backs, which connects the microphone to the part of the dosimeter that contains its circuitry, but there is no showing that any microphone itself slipped or came off. Thus, we see no more than a hypothetical possibility and no evidence in the record that a malpositioned microphone produced an inaccurate reading. Moreover, the correlation of the sound level meter readings to the dosimeter readings suggests that, even if there was a microphone that was not in proper position, the improper placement had no significant effect on the accuracy of the dosimeter reading.

C. Margins of Error

The last three rationales (Nos. 7 through 9) of the judge are also without merit in light of the factual record as a whole in this case. These three rationales share a common promise: that, for varying reasons, the dosimeter readings must be discounted by some significant percentage to allow for an adequate margin of error. Yet, the record as a whole reveals that, even after allowing a very large margin of error, Bonney Forge's own expert accepted ten out of the thirteen readings as establishing overexposure. This expert, James H. Botsford, a consultant noise control engineer, had criticisms of the industrial hygienist's techniques, but he did not say that dosimeter readings attaining the magnitude of the ones in this case should be disregarded entirely. Instead, he testified that the readings of over 250% could be considered to reveal overexposure. [[7]]

There remain, then, the three dosimeter readings of less than 250%, all obtained in the machine shop. However, even there, we note that expert Botsford's independent investigation apparently confirmed the industrial hygienist's finding of overexposure.[[8]] Moreover, we find no basis for disregarding the three machine shop readings on the basis of any ascertainable percentage for error.

The judge referred to a possibility (rationale No. 7) that the dosimeters took readings of noise at levels below 90 dBA. Because Table G-16 places no limit on exposure to noise at levels below 90 dBA, such exposure should not be considered in determining whether overexposure has occurred. Specifically, the judge's concern was based on testimony that suggests that the dosimeters might have been reading noise from 89 dBA upward.[[9]] This does not mean, however, that the readings are meaningless, simply that they have to be discounted by a larger error factor: approximately 50% instead of 32%.[[10]] Only two readings were below 200% and even those were well over 150%. Thus, even if the dosimeters were improperly set at 89 dBA, each reading still exceeded the instrument's inherent error factor by a substantial amount.

The judge also submitted (rationale No. 8) that the dosimeter readings should have been further discounted for impact noise.[[11/]] However, the only plant area in which impact noise was generated was the forge shop, where, as we have previously observed, the dosimeter readings were of such a magnitude that even Bonney Forge's expert would accept them as showing overexposure. In the machine shop and the production grinding area, the noise was produced by processes such as drilling, cutting, and grinding--processes that do not generate the high-intensity, short-duration noise peaks that are characteristic of impact noise.

Bonney Forge argues that there was a spillover of impact noise from the forge shop into the machine shop, and that, thereby, the dosimeter readings in the machine shop were contaminated and rendered unreliable. We agree with Bonney Forge that, to the extent that the noise produced in the forge shop consisted of impulses more than one second apart, any spillover of it into the machine shop would not be properly included in noise measurements taken there. See note 11 supra. However, the Secretary's witnesses uniformly testified that, although the impacts of the forge hammers were audible in the machine shop, they were an insignificant part of the total noise exposure compared to the noise created by the machines located within the machine shop.[[12]] The only contrary testimony came from Bonney Forge's expert witness, and it was ambivalent. [[13]] Accordingly, we see no basis for discounting the machine shop readings.

Lastly, the judge believed that the readings should have been discounted for high frequency noise (rationale No. 9). As stated previously, at note 7 supra, Bonney Forge's expert witness testified that, because of the presence of high frequency noise in the workplace, OSHA should have applied an error factor of 6.5 dBA in this case; translated to the dosimeter, this would require a reading of nearly 250% to show overexposure. See Collier- Keyworth, 13 BNA OSHC at 1228-29, 1986-87 CCH OSHD at p. 36,528; also, Table A-1 of 29 C.F.R. §1910.95. In Collier-Keyworth, however, the evidence proved that the employee was exposed to predominantly high frequency noise. Therefore, the Commission concluded that his 158.5% reading was insufficient to show overexposure. 13 BNA OSHC at 1229 & n.27, 1986-87 CCH OSHD at p. 36,528 & n.27. In contrast, in this case, there is no evidence that any employee was exposed to predominantly high frequency noise. Bonney Forge's expert witness testified that he did notice some high pitched noise at several locations. However, Bonney Forge did not attempt to prove that this noise was a significant part of any employee's total noise dose. Thus, we find no basis for applying the large error factor to any of the readings in this case, including in particular the three lowest dosimeter readings taken in the machine shop.

D. The Absence of any Evidence of Compliance

Finally, all nine rationales of the judge's decision are undercut by the absence of any evidence indicating that noise exposures at Bonney Forge's workplace were within permissible limits. This is not a case where the judge was called upon to balance evidence indicating overexposure against evidence indicating permissible exposure, and concluded either that the latter evidence preponderated or that neither side preponderated. Instead, virtually all of the evidence, in this enormous and presumably exhaustive record, dealing with the subject of noise exposure at Bonney Forge's workplace, suggests that permissible limits were exceeded.

Bonney Forge claims that there is evidence showing the noise exposures to have been within permissible limits, but either the "evidence" is not in the record or it does not support the claim. Bonney Forge repeatedly asserts that its insurance company "made a noise survey of the machine room which showed the levels to be within the Table G-16 limits." However, any such results of an insurance survey are not in the record. In fact, on that basis Judge Usher sustained an objection by the Secretary to a question by Bonney Forge's counsel, trying to incorporate an assertion that two prior noise surveys had shown the noise exposures to be within permissible limits.

Bonney Forge also relies on measurements taken by another OSHA compliance officer during a 1977 safety inspection, which led to the 1979 industrial hygiene inspection in this case. During the 1977 safety inspection, the compliance officer took sound level meter readings ranging from 88 dBA to 92 dBA in the machine shop, which could indicate exposure within permissible limits. However, because of his extensive experience in industrial plants, this compliance officer was convinced that his readings were inaccurate; after the inspection, he turned in his sound level meter as defective equipment and recommended an industrial hygiene inspection of the machine shop.

III.

In sum, we conclude that the Secretary established that thirteen employees were exposed for impermissible durations to excessive levels of noise. Accordingly, we reverse the judge's decision holding to the contrary, and we remand this case to the Chief Administrative Law Judge for reassignment and for appropriate disposition of the remaining five issues listed in this decision. As we have indicated, the evidentiary record is substantial, and the necessary factual findings and legal conclusions should be in the first instance entered by an administrative law judge rather than the Commission. Also, to the extent necessary and appropriate, the parties may be given an opportunity to present additional arguments.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: January 14, 1991

SECRETARY OF LABOR

Complainant

v.

GULF AND WESTERN, ENERGY PRODUCTS

GROUP, BONNEY FORGE DIVISION

Respondent

INTERNATIONAL ASSOCIATION OF

MACHINISTS, LOCAL LODGE 1830

Authorized Employee
Representative

OSHRC DOCKET NO. 79-4053

DECISION AND ORDER Appearances:

Howard K. Agran, Esq.
Office of the Regional Solicitor
U. S. Department of Labor
Philadelphia, Pennsylvania

for the Complainant

Robert D. Moran, Esq.
Washington, D. C.

for the Respondent

Mr. Douglas Navarre, Chairman
International Association of
Machinists - Local Lodge 1830
Allentown, Pennsylvania

and

Mr. Thomas Messner, President
International Association of
Machinists - Local Lodge 1830
Northhampton, Pennsylvania

for the Authorized Employee
Representative

Usher, Judge:
These proceedings were initiated by the Secretary of Labor, United States Department of Labor, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq. ("the Act"). The Secretary seeks affirmance of a citation charging several "willful" violations of Section 5(a)(2) of the Act and the assessment of a $2,000 penalty.[[1/]]

The Citation, resulting from an inspection of Respondent's workplace at Allentown, Pennsylvania, from March 15 to May 9,1979, was issued on July 9, 1979. Respondent filed a timely Notice of Contest; a Complaint and Answer followed in accordance with the Commission's Rules of Procedure (29 CFR 2200.33); and the issues were tried before me at Allentown, Pennsylvania, on 14 non-consecutive days between April 2 and August 5, 1980. The International Association of Machinists elected party status pursuant to Commission Rule 20(a) (29 CFR 2200.20(a)), and its representatives participated fully at the trial.

Complainant and Respondent filed post-trial briefs on November 17 and 20, 1980. The union has not briefed its position.

The Issues.

The pleadings, evidence adduced by the parties, the oral arguments of counsel and their post-trial briefs have served to raise the following issues: 1) whether Respondent violated Section 5(a)(2) of the Act because of its failure to comply with the health standards promulgated by Complainant and codified at 29 CFR 1910.95(a) and 1910.95(b)(1), or either of these standards; 2) if a violation or violations occurred as charged by Complainant, was that violation or those violations "willful" in nature, as that term is used in Section 17(k) of the Act and defined by the Commission and the courts; and 3) if violative conduct on Respondent's part has been proven, what penalties, if any, are appropriate in accordance with the provisions of Sections 17(a) and 17(j) of the Act.

The Citation issued by Complainant on July 9, 1979, reads in full as follows:

The violations described in this citation are alleged to have occurred on or about the day the inspection was made unless otherwise indicated within the description given below.

1a
29 CFR 1910.95(a): Protection against the effects of noise was not provided for employee(s) exposed to sound levels which exceeded those listed in Table G-16 of sub-part G of 29 CFR part 1910:

a) The employee operating machine no. 299 in the Machine Shop was exposed to noise, March 26, 1979.

b) The employee operating machine no. 198 in the Machine Shop was exposed to noise, March 26, 1979.

c) The employee operating machine no. 398 in the Machine Shop was exposed to noise March 26, 1979.

d) The employee operating machine no. 389 in the Machine Shop was exposed to noise, March 26, 1979.

e) The employee operating machine no. 275 in the Machine Shop was exposed to noise, March 26, 1979.

f) The employee operating machine no. 581 in the Machine Shop was exposed to noise, March 26, 1979.

g) The three Sweepolet grinders in the Production Grinding Area were exposed to noise, April 4, 1979.

1b
29 CFR 1910.95(b)(1): Employee(s) were subjected to sound levels exceeding those listed in Table G-16 of subpart G of 29 CFR part 1910, and feasible administrative or engineering controls were not utilized to reduce sound levels:

a) The employee operating machine no. 299 in the Machine Shop was exposed to noise, March 26, 1979.

b) The employee operating machine no. 198 in the Machine Shop was exposed to noise, March 26, 1979.

c) The employee operating machine no. 398 in the Machine shop was exposed to noise, March 26, 1979.

d) The employee operating machine no. 389 in the Machine Shop was exposed to noise, March 26, 1979.

e) The employee operating machine no. 275 in the Machine Shop was exposed to noise, March 26, 1979.

f) The employee operating machine no. 581 in the Machine Shop was exposed to noise, March 26, 1979.

g) The operator of the no. 16 Forge Hammer was exposed to noise March 27, 1979.

h) The helper assigned to the no. 16 Forge Hammer was exposed to noise, March 27, 1979.

i) The operator of the no. 18 Forge Hammer was exposed to impact and continuous noise, March 27, 1979.

j) The helper assigned to the no. 18 Forge Hammer was exposed to noise, March 27, 1979.

k) The operator of the no. 12 Forge Hammer was exposed to impact noise March 27, 1979.

l) The three Sweepolet grinders in the Production Grinding Area were exposed to noise, April 4, 1979.

The combination of the above alleged violations (1a and 1b) affected the overall gravity of possible illness and contributed to the serious nature of the alleged violations.

*Step 1: Effective personal hearing protection shall be provided and used by employee(s) as an interim protective measure.

*Step 2: A written detailed plan of abatement leading to the complete abatement of this item shall be submitted to the Area Director. Such a plan shall : a) employ the use of qualified engineering personnel; b) include detailed engineering studies and their results; c) outline the ordering of equipment and materials and completion of the design phase; and d) outline dates for the anticipated implementation of the plan.

*Step 3: Feasible engineering controls and/or administrative controls, shall be determined.

*Step 4: Abatement shall be completed by the implementation of feasible engineering controls and its effectiveness at achieving compliance verified. 90-Day progress letters are requested during the abatement period.

The abatement requirements set forth in "Step 1" were required by Complainant to be accomplished "immediately"; those in "Step 2" within two months; those in "Step 3" within three months; and a one-year period was allowed for the implementation of feasible engineering controls or administrative controls, as specified in "Step 4."

A total penalty of $2,000 was proposed by Complainant for all the asserted violations.

The safety standards referred to in the Citation provide the following requirements (in pertinent part):

29 CFR 1910.95 OCCUPATIONAL NOISE EXPOSURE

(a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G-16 when measured on the A scale of a standard sound level meter at slow response. When noise levels are determined by octave band analysis, the equivalent A-weighted sound level may be determined as follows:

Table G-16--Permissible Noise Exposures

(b) (1) 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.

Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level.

The dBA sound levels set forth in Table G-16 are further explained as follows:

When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effect of each. If the sum of the following fractions: C₁/T₁ + C₂/T₂ ... C_n/T_n exceeds unity, then, the mixed exposure should be considered to exceed the limit value. Cn indicates the total time of exposure at a specified noise level, and Tn indicates the total time of exposure permitted at that level.

Background.

Respondent is engaged in the manufacture of pipe fittings and metal elbows at its Allentown, Pennsylvania, facility and produced a gross annual dollar volume of $17,146,000 during the fiscal year ending in 1979. (Respondent's answer to Interrogatory No. 25, Tr. p. 117).

On March 22, 26 and 27, and April 4, 1979, noise monitoring was conducted in Bonney Forge's machine shop, forge shop and in the production grinding area by Michael P. McSherry an industrial hygienist employed by Complainant's Occupational Safety and Health Administration ("OSHA"). The results of the March 22 sampling were discarded because of the faulty operation of the noise dosimeters used on that date. Thus, the results obtained from monitoring on March 26 and 27, and April 4, 1979, served as the basis for the issuance of the Citation charging violations of the noise standards. (Tr. pp. 834-835).

Summary of the Evidence
Regarding Item 1a of the
Citation.

In item 1a of his Citation, Complainant charges that Respondent failed to provide protection for its employees who were exposed to levels of sound which exceeded the levels set forth in the health standard.

The industrial hygienist (hereinafter the "Compliance Officer" or "CO") testified that he attached a pre-calibrated Gen-Rad dosimeter to the clothing of each of the employees whom he selected to be sampled for noise exposure. The dosimeters were attached at the employee's belt or placed in his pockets, and a cord was run over his shoulder to the microphone which was pinned at or near the lapel of his shirt. This, according to the CO, placed the microphone in the employee's hearing zone. The dosimeter is designed to record all sound levels to which the employee is subjected during the time it is operating, and it integrates those sound levels with the duration of exposure. If it is properly calibrated, and if the integration factor is correct, it produces a readout representing a percentage of the noise permitted by the health standard (Table G-16 of 29 CFR 1910.95(a)).

The CO took samples of the noise encountered by employees in Respondent's machine shop on March 26, in the forge shop on March 27, and in the production grinding area on April 4, 1979. The noise exposure experienced by six machine operators was measured; three grinders were equipped by the CO with dosimeters; and four forge hammer operators and forge operator helpers were subjected to the testing.

According to the CO's testimony, the dosimeter readings for the machine operators were:

Employee Diaz     -298.6% of the permissible level
Employee FeIguieras     -247% of the permissible level
Employee Joler     -293% of the permissible level
Employee Bachman     -375% of the permissible level
Employee Check     -180.8% of the permissible level
Employee Kuder     -172.9% of the permissible level

And the forge hammer operators and helpers:

Employee Reph     -410.5% of the permissible level
Employee McCormick     - 386.1% of the permissible level
Employee McFarland     - 749.1% of the permissible level
Employee Rodrigues     - 725% of the permissible level

The dosimeter readings reported for the grinders were:

Employee Torok     - 539% of the permissible level
Employee O'Donnell     - 414.6% of the permissible level
Employee Wilt     - 400% of the permissible level

The CO testified that he also measured the noise exposure of each of the same employees using a standard sound level meter (on the A scale at slow response). These readings for Diaz averaged 85 dBA to 103.5 dBA; Felguieras - 88 dBA to 104 dBA; Joler - 88 dBA to 101 dBA; Bachman - 91 dBA to 104 dBA; Check -86 dBA to 96 dBA; Kuder - 83 dBA to 96.5 dBA; Reph - 93 dBA to 105 dBA; McCormick - 90 dBA to 109 dBA; McFarland 97 dBA to
113 dBA; Rodrigues - 98 dBA to 113 dBA; Torok - 97 dBA to 108 dBA; O'Donnell 80 dBA to 110 dBA; and Wilt - 80 dBA to 107 dBA. The 80 dBA readings were actually listed as "less than 80 dBA" and were recorded when no one in the area was operating a grinder.

CO McSherry used the dosimeter readings to calculate the "average - or equivalent - dBA measurements for a full eight hour day," accounting for the somewhat limited time periods when the dosimeters were in place on the employees and operating. He testified that the time periods and the calculated averages were:

Thus, according to the testimony, the dosimeters were in place on the machine shop employees for approximately six and one-half to seven hours. Likewise, the grinders wore them for approximately six and one-half hours. Employee Reph "left for the day" after working only about two hours, but the other forge hammer operators and helpers wore the dosimeters for approximately five and one-half hours.

In the machine shop, metal castings are bored or drilled as they are fed into the machines and lathes by the employee operators. The metal pieces are rotated within the machines through a cycle until the drilling or boring operation is complete and the finished product is ejected. Thus the noise emitted by each machine varies as the process continues (e.g., more or less pieces being machined at one time, or different sized pieces involved), and the operator is subjected to the resulting noise, not only from the machine he is tending, but from all other machines in the shop. Variations in the sound levels within the machine shop are, of course, caused by the number of machines being operated at a given time.

In the forge shop metal bars are heated in furnaces, transferred to the forge hammers by the helpers, and struck by hammer dies to form castings (elbows and other pipe fittings). Adding to the noise caused by the forge hammers as they descend and strike the heated metal is the "constant roar" of the nearby furnaces, and, not unlike the situation in the machine shop, the operator and his helper are subjected to the noise produced by the operation of other furnaces and hammers in the area as well as that from the furnace and hammer they are tending.

The production grinders use hand-held grinding equipment to remove imperfections from forged castings which are placed on tables or on the floor of the plant, depending upon the size and weight of the piece. The noise is uttered from the operation of the grinding tool itself and from the "ringing" of the metal casting as it is struck by the tool. The level of the sound depends, to some extent, upon the size and shape of the casting and otherwise varies depending upon whether it is placed more solidly on the floor or on a table. The degree of the sound level in the area increases as the number of grinding operations increases, and each grinder is subjected to the noise caused by the other operations around him, as well as that produced by his own. Grinding is not a continuous operation.

According to the CO's testimony, employees in the forge shop wore hearing protective devices; those in the machine shop and the production grinding area did not. Thus a violation of the health standard codified at 29 CFR 1910.95(a) was charged, but that charge did not include the employees who worked as forge hammer operators and helpers.

Evaluation of the Evidence
Regarding Item 1a of
the Citation

In order to require that Respondent provide "protection against the [adverse] affects of [the] noise exposure [of its employees]" Complainant must first prove, by a preponderance of the evidence, that the unprotected employees were in fact exposed to "sound levels [which] exceed those shown in Table G-16 when measured on the A scale of a sound level meter at slow response." 29 CFR 1910.95(a). Respondent's counsel argues at length that Complainant has failed to carry his burden of proof.[[2/]] I agree.[[3/]]

Respondent's counsel attacks the "integrity of the measurements" of the sound levels made by Complainant's agent and attacks his credibility on the basis of his inexperience and ineptness. I agree that grossly inadequate instruction by his employer and the apparent lack of conviction on the CO's part cause a resulting absence of persuasion.[[4/]]

The record supports Respondent's assertions regarding the CO's lack of experience in the field of noise measurement and control. He attended a liberal arts college and had no exposure to the study of engineering of any kind. He did not work in the engineering field prior to assuming his present position, and has attended no courses specifically designed to treat the subject of noise measurement or noise control. A three-week OSHA training course which he attended in 1977 might have included training in the general subject of noise measurement, but he "didn't remember" whether it did. He "didn't know" how much training he has had in measuring sound levels, but it was "maybe a day;" he "really didn't remember." Asked how much time he had spent studying the operation of sound level meters and audio dosimeters prior to the time of the inspection in question, he replied: "I really don't know;" and when queried about whether he remembered "anything [from the OSHA courses] about taking noise measurements," he said: "I'm not sure."[[5/]]

These candid admissions by Complainant's principal witness lead to the obvious question whether his testimony alone is sufficient to support the charge asserted, viz., that Respondent's employees were exposed to sound levels which exceeded those set forth in the cited health standard. Clearly that is the predicate upon which Complainant has based his assertion that protective equipment should have been provided and that engineering or administrative controls should have been instituted.

Viewing this witness' testimony critically to determine whether it amounts to a preponderance of the evidence leads to the conclusion that there is considerable doubt about Respondent's failure to comply with the safety standard -- considerable doubt regarding the level of the noise at the various work stations.

In no instance did the CO perform a full shift sampling. Expert acoustical engineers may disagree that an eight-hour sampling is necessary for accuracy, but the expert witnesses who testified here seem to think that it is. [[6/]] Likewise, the CO made no adjustments for the impact noise (as opposed to continuous noise) at the work stations. What consideration should have been given for that factor is unclear from this record, but its having been ignored entirely casts further doubt upon the ultimate findings of the CO, and those findings are the sole basis for the issuance of the citation.[[7/]]

According to the testimony, an audio dosimeter records and reads out the sound levels it encounters in percentages of the allowable limit (Table G-16). However, the time-weighted average reported may vary depending upon whether the integration of the dosimeter begins at 90 dBA, or some lower or higher level. The record here is unclear, but apparently some dosimeters integrate at 80 or 85 decibels. The CO did not know at what level -- or levels -- the dosimeters he used would integrate. He conceded that the integration point may well have been below 90 dB. He stated that "the integrator drops off sharply below 90 dBA." If, as might well have been the case, the integration point of the dosimeters used by the CO was less than 90 decibels -- perhaps 85 -- the resulting readouts would have been in terms of a percentage of 85, not 90 decibels as provided for in the health standard. The error could, of course, be crucial to a determination whether the standard was violated because of excessive sound levels.[[8/]]

Complainant's agent attempted to bolster the accuracy of the dosimeter readings by the submission of his findings when using the sound lever meter. While the audio dosimeters were in place on the employee's, the CO held the sound level meter (presumably in the hearing zone of the employee) and read the "low point and the high point on the fluctuating dial." He observed these readings for "three or four seconds" each time and then recorded them. He did not record the lengths of time the meter indicated the higher levels or the lower levels. Nevertheless, he concluded that his findings, made and recorded as the result of the sound level meter readings, confirmed the accuracy of the dosimeter readouts.[[9/]]

As pointed out above, the sound levels at the several work stations varied measurably from time to time depending upon which machines were operating, how many machines were in use, what castings or other parts were being machined, whether forge hammers and furnaces operated simultaneously, whether pieces were ground on tables or on the floor, etc. Likewise, the frequency of the noise emitted as the different operations were conducted -- as well as the volume and intensity of the sound -- varied considerably.[[10/]] Despite that fact, the CO did not allow differing error tolerance factors when calculating his findings. He stated that he allowed an error factor of 2 dBA throughout. The measurement of high frequency noise requires the application of a greater error factor, according to Respondent's expert witness.[[11/]]

Complainant's principal witness was somewhat less than scrupulous regarding the actual sampling of noise exposures at the employees' workstations. He presumably knew how long each audio dosimeter was attached to the individual employee, but he was quite uncertain about where the employee spent that period of time. If a machine was down, or the employee left his work station for other reasons, went to lunch or to the rest room, he made no calculated adjustment.[[12/]] He purported to measure the full-shift noise level at certain work stations, --at least by interpolation-- but his uncertainty about where each employee was during the time he was monitored leaves further doubt about the purity of his reported findings. Complainant's expert witness, Doctor Clayton H. Allen, conceded as much when he stated that "their [employees'] positions throughout the day determine the relative importance of these [noise] sources."[[13/]] One single fact to be gleaned from this record is that the CO could not be certain that the dosimeters he relied upon collected noise emitted by the operations performed by the employees at their work stations and that noise alone.[[14/]]

Further indications of a lack of exactitude appear in the record. The CO conceded that three of the six dosimeters he used in the machine shop did not come within tolerable limits upon calibration both before and after their use.[[15/]] He was not certain that the dosimeter microphones remained in position on the employees throughout the sampling periods; he said, "I don't remember."[[16/]] Improper positioning of the audio dosimeter microphone can materially affect the sampling results, according to the testimony of Respondent's expert witness.[[17/]] The CO lacked total conviction about the time of the employee's exposure to the offensive sound levels.[[18/]] This, of course, is crucial inasmuch as the health standard relied upon by Complainant is based specifically upon the excessive sound levels and the time they are endured by an employee.

Denouement

Complainant's burden of proof is clear. He must convince the fact finder by a preponderance of the evidence that the asserted violation is supported by the facts adduced. The burden of persuasion has not been met here. I am not persuaded by the testimony that Respondent's employees were subjected to sound levels in excess of those prescribed in the health standard promulgated by Complainant. The record affords much room for doubt.

As stated above, if Complainant fails to prove a violation of the health standard codified at 29 CFR 1910.95(a), viz, that ". . . the sound levels [at Respondent's workplace] exceed those shown in Table G-16 when measured on the A scale of a standard sound level meter at slow response" there is no requirement that "protection against the effects of noise exposure be provided" and no need for the utilization of "feasible administrative or engineering controls."

FINDINGS OF FACT

A preponderance of the probative evidence of record, taken in its entirety, compels the following findings of fact:

1. Respondent, a corporate entity, is engaged in the manufacture, sale and distribution of pipe fittings and similar metal products at its Bonney Forge Division, Allentown, Pennsylvania, where it grossed in excess of $17 million during fiscal year 1979.

2. Goods produced by Respondent at the Allentown plant are shipped in interstate commerce.

3. On March 26 and 27, and April 4, 1979, Complainant's agent monitored the sound levels at various work stations in the machine shop, forge shop and production grinding area at Respondent's Bonney Forge facility.

4. The means and methods employed by Complainant's agent in the collection and recording of the sound level data at the various work stations were imprecise, confused, fraught with inconsistencies and consequently were rebuttably unreliable.

5. Complainant failed to sustain his burden of proof, and his conclusions regarding violations by Respondent at the times and places asserted are rejected as speculative.

CONCLUSIONS OF LAW

1. Jurisdiction of the parties and of the subject matter herein is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act.

2. At all times relevant hereto, Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and as such was subject to the requirements of Section 5(a)(2) of the Act.

3. Respondent did not violate Section 5(a) (2) of the Act on or about March 26 and 27, and April 4, 1979, by its failure to comply with the provisions of the health standard promulgated by Complainant and codified at 29 CFR 1910.95(a), as charged by Complainant in his Citation, dated July 9, 1979.
4. Respondent did not violate Section 5(a) (2) of the Act on or about March 26 and 27, and April 4, 1979, by its failure to comply with the health standard promulgated by Complainant and codified at 29 CFR 1910.95(b)(1), as charged by Complainant in his Citation, dated July 9, 1979, inasmuch as the measured sound levels at the various work stations did not exceed those levels listed in Table G-16 of subpart G of the standard codified at 29 CFR 1910, and feasible administrative or engineering controls were thus not required.

ORDER

Upon consideration of the foregoing findings and conclusions, it is hereby ORDERED that the Citation issued to Respondent by Complainant on July 9, 1979, is VACATED, and. accordingly no penalty is assessed.

BENJAMIN G. USHER
JUDGE, OSHRC

Dated: May 13, 1982
New York, New York

FOOTNOTES:
[[1]] Section 1910.95(a) and Table G-16 provide, in relevant part:

Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G-16 when measured on the A scale of a standard sound level meter at slow response. . . .
* * *
TABLE G-16--PERMISSIBLE NOISE EXPOSURES [[1]]

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

[[1]] When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effects of each. If the sum of the following fractions: C₁/T₁ + C₂/T₂ C_n/T_n exceeds unity, then, the mixed exposure should be considered to exceed the limit value. C_n indicates the total time of exposure at a specified noise level, and T_n indicates the total time of exposure permitted at that level. . . .

[[2]] Section 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.

[[3]] There were no background noise readings obtained for employee Bachman. We have rounded off the dosimeter readings to the nearest whole percent, and the equivalent dBAs to the nearest dBA. The industrial hygienist's calculations of the equivalent dBAs were confirmed at the hearing by an expert witness, an occupational health engineer employed by OSHA (see note 6 infra).

[[4]] At the time of the inspection, OSHA's Industrial Hygiene Field Operations Manual required full-shift sampling. Full-shift sampling may be needed to establish overexposure in marginal cases, or to delineate the full extent of a noise problem, or to shed light on the feasibility of engineering or administrative controls. However, as the record in this case indicates, full-shift sampling is not needed to prove overexposure when overexposure is shown by a partial day's measurements.

[[5]] The judge was also concerned that the industrial hygienist did not remove the dosimeters or adjust the readings for noise encountered during lunch or rest breaks. However, the standard limits total daily noise exposure and there is no apparent reason why exposure during lunch or rest breaks should not be counted. Cf. Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD ¶ 20,448, p. 24,424 (No. 504, 1976) (a finding of employee access to a hazard can be predicated on access during personal comfort activities).

[[6]] The Secretary buttressed her industrial hygienist's qualifications with testimony from OSHA's leading noise expert, Dr. John Barry, the occupational health engineer who wrote the noise measurement chapter of the Industrial Hygiene Field Operations Manual (IHFOM). See also Collier-Keyworth Co., 13 BNA OSHC at 1221, 1986-87 CCH OSHD at p. 36,520. Dr. Barry testified that he had worked with industrial hygienist McSherry and believed that his noise survey in this case was valid and adequate for compliance purposes.

[[7]]He stated that the readings "greater than 250% are probably valid indicators of overexposure . . . taking into consideration the type of noise . . . and the tolerances of the instruments for that type of noise." Again, at another point in his testimony, he proposed reducing the readings by a large error tolerance factor of 6.5 dBA to allow for high frequency noise. The usual factor of 2 dBA is applied by disregarding readings of 132% or less. A 6.5 dBA factor would be applied by disgarding readings of 250% or less. (See 29 C.F.R. § 1910.95, Table A-1, where a 250% dose is equated with an 8-hour TWA of 96.6 dBA).

[[8]] After the citation issued, Bonney Forge retained expert Botsford to evaluate the noise situation in all three areas of the plant and to determine whether engineering controls would be feasible. In performing this study, the expert made some noise measurements at various locations, including the machine shop. His purpose was not to determine employee noise doses, but his testimony on the issue of feasibility reflected a belief that the employees in the machine shop were exposed to excessive noise levels. Specifically, Bonney Forge's expert testified that certain engineering controls for the machine shop would not be feasible because they would not reduce the noise to within permissible limits. He also stated that controls in the forge shop and the production grinding area would not reduce the noise to within Table G-16 levels.

[[9]] Although the industrial hygienist understood the operating instructions to say that the instruments began reading at 90 dBA, OSHA's leading noise expert Barry testified that dosimeters of the type used by OSHA have a "threshold" or "gate" of 89 dBA. This expert and expert Botsford differed as to how significant this was, but both indicated that counting noise from 89 dBA upward could produce elevated readings.

[[10]] Dosimeters set at 90 dBA have an inherent error factor of 2 dBA. Thus, a 90 dBA reading of 100% means that the actual noise level could be as high as 92 dBA or as low as as 88 dBA. To compensate, OSHA issues a citation only if a reading exceeds 132%, which corresponds to 92 dBA and places the actual noise level no lower than 90 dBA. See Collier- Keyworth , 13 BNA OSHC at 1228, 1986-87 CCH OSHD at p. 36,528; also, Table A-1 of 29 C.F.R. § 1910.95. If any dosimeter in this case was set to begin reading noise at 89 dBA rather than 90 dBA, the instrument should be treated as having a 3 dBA error factor (1 dBA higher than usual). Therefore, to justify a citation, its reading should have been slightly above 150% (which corresponds to 92.9 dBA, according to Table A-1).

[[11]] Impact noise is noise produced by the impact of two objects, such as a hammer striking metal during forging operations. The standard defines as "continuous" (and therefore includes) noise from a series of impacts having peaks less than one second apart. See Collier-Keyworth, 13 BNA OSHC at 1223, 1986-87 CCH OSHD at p. 36,522. The impact noise that is excluded from the standard is either individual impacts or a series of impacts that are more than one second apart.

[[12]] Expert Barry noted that the impacts from the forge shop did not register as background noise in his graphic depictions of the machine shop noise. Similarly, the Secretary's other expert, an acoustical consultant, Dr. Clayton Allen, testified that the hammer impacts did not add even a single decibel to the sound level meter readings he took in the machine shop; and that there was no measurable difference between readings taken while the forge shop hammers were operating and while the hammers were stopped. The testimony of two witnesses, the industrial hygienist and machine shop employee Kuder, also supported the view that the hammer impacts did not contribute significantly to noise exposures in the machine shop.

[[13]] Initially, the expert posited that impact noise from the forge shop was not "too big a factor in exposure" in the machine shop. However, he almost immediately revised his testimony. He testified that the impact noise levels spilling over into the machine shop while it was shut down were "certainly sufficient to elevate dosimeter readings." On cross-examination, the witness changed direction a second time, testifying that impact noise "may affect" readings but the noise created in the machine shop itself was the "cause of any overexposure." The witness again shifted on redirect examination, testifying this time that impact noise would elevate the dosimeter readings perhaps "two to three times."

[[1/]] Section 5(a)(2) of the Act requires:

Each employer-
***
shall comply with occupational safety and health standards promulgated under this Act.

[[2/]] Commission Rule 73(a); 29 CFR 2200.73(a). See also, for example B & B Insulation, Inc. v OSHRC, 583 F.2d 1364 (5th Cir. 1978)

[[3/]] This conclusion is reached after reading, again and again, the 3,000 plus pages of the transcript and almost 100 pages of briefs.

[[4/]]There is no question raised regarding his truthfulness, and I specifically note here that he testified to facts which he verily believed to be true.

[[5]] See Tr. pp. 956, 966, 967, 1065, 1066, 1336, 1337.

[[6/]] See Tr. pp. 520, 521, 522, 524, 835, 1113, 115

[[7/]] See Tr. pp. 844, 1076, 1205, 1206; 1177, 1178, 2858, 2859

[[8/]] See Tr. pp. 1192-1193, 1361, 2913-2916, 2926-2927.

[[9/]] See Tr. pp. 898, 1341-1342.

[[10/]] See Tr. pp. 854, 1067.

[[11/]] See Tr. pp. 2863, 2866.

[[12/]] Perhaps the lunch area and rest room were quieter, but the record does not disclose that, and it cannot. be presumed.

[[13/]] See Tr. pp. 554-555.

[[14/]] Respondent's counsel argues that there may have been a deliberate tainting of the CO's findings:

"He [the CO] could not verify that the noise levels shown on the dosimeters which were used to make the measurements during this inspection recorded only the noise in the Respondent's work place (T- 1169) and excluded horseplay or tampering with the instruments because he was too busy with other things to watch the employees (T- 997, T-1074 to 1076, T-1133, T-1318). He admitted that compressed air was used in the plant (T-1071), that 'it could happen' that employees would take these devices and make noises in the dosimeters (T-1072) that 'it could happen' that employees might want to make the company look bad (T-1073), and that one thing which would do this would be an OSHA noise citation against the company (T-1073), but he could offer no assurance that it didn't happen while his measurements were being made because: 'I didn't watch all the employees every minute of the day' (T-1072). Indeed, he rather candidly conceded that 'I wasn't there for the entire shift that the employees were there' (T-1113)." (Brief, p. 28)

There appears to be no support in the record for such a conclusion, and counsel's intense cross-examination of Complainant's witnesses failed to establish it as fact. I would discount it as a probability.

[[15/]] See Tr. pp. 1171-1172.

[[16/]] See Tr. pp. 1069, 1071, 2960.

[[17/]] See Tr. p. 1307 and Ex. R-3.

[[18/]] See Tr. p. 1079-1080.