UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 2038
B.F. GOODRICH COMPANY,
Respondent.

March 24, 1981

DECISION

Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

The United States Court of Appeals for the Sixth Circuit remanded this case to the Commission

for a more definite statement whether the feasible controls ordered will bring the noise level to or below 90 decibels during an eight hour day as required by 29 C.F.R. § 1910.95 Table G–16 so that individual protective devices will not be required, and if not, the extent to which the feasible controls ordered will reduce the noise level.

B.F. Goodrich Co. v. OSHRC, No. 74–1836 (6th Cir. April 24, 1975) (‘Goodrich’). In response to the order of the court, the Commission remanded the case to Administrative Law Judge Louis J. Rubin, who initially decided the case, to make the required findings. In his decision on remand Judge Rubin found that the use of machine enclosures would bring the noise level to below 90dBA for an eight hour day.

Respondent, B.F. Goodrich Company, filed a petition for review of the judge’s decision on remand raising the issues of whether the judge’s decision is responsive to the court’s order and whether it is supported by the evidence. Commissioner Cleary granted Respondent’s petition.

While the judge’s decision in this case was pending review by the Commission and after the parties had filed briefs on review, the Commission issued its decision in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976–77 CCH OSHD ¶ 21,009 (No. 3973, 1976), Appeal withdrawn, No. 76–3229 (9th Cir. April 26, 1977) (‘Continental Can’). In Continental Can the Commission held:

[section 1910.95(b)(1)] should be interpreted to require those engineering and administrative controls which are economically, as well as technically feasible. Controls may be economically feasible even though they are expensive and increase production costs. [Citations omitted.] But they will not be required without regard to the costs which must be incurred and the benefits they will achieve. In determining whether controls are economically feasible, all the relevant cost and benefit factors must be weighed.

4 BNA OSHC at 1547, 1976–77 CCH OSHD at p. 25,256. Continental Can remains the rule of decision to be applied in cases involving alleged violations of the occupational noise standard at section 1910.95(b)(1). Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD ¶24,555 (No. 76–222, 1980) (‘Samson’).

In R.M.I. Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir., 1979) (‘R.M.I.’), the sixth Circuit Court of Appeals remanded a similar case involving the noise standard to the Commission for the taking of additional evidence on the issue of economic feasibility and for a determination of whether the costs of installing engineering controls are outweighed by the benefits to be derived from such controls. The remand was ordered despite the fact that the issue of economic feasibility was raised by R.M.I. for the first time before the court on appeal and had not been raised before the administrative law judge or the Commission. The court reasoned that R.M.I. could properly raise the issue before the court because Continental Can, which placed the burden of proving economic feasibility on the Secretary, was decided by the Commission after the R.M.I. case had been decided by the administrative law judge and after the parties had filed briefs with the Commission.

The procedural posture of this case now before the Commission is similar to that of R.M.I. when it was before the Sixth Circuit. Indeed, Goodrich is before us pursuant to an order of remand issued by the same Court of Appeals which remanded the R.M.I. case for the application of an intervening change in Commission law. Accordingly, we must determine whether there is sufficient information in the record before us to perform the cost-benefit analysis test for economic feasibility set forth in Continental Can and reaffirmed in Samson. Prior to the issuance of the Sixth Circuit’s R.M.I. decision, the Commission requested the parties in this case, Goodrich, to submit supplemental briefs addressing the question of whether the evidence of record is sufficient to reach a conclusion under the Continental Can test.

Our review of the record as well as the supplemental briefs filed by the parties leads us to conclude that the record is insufficient to perform the cost-benefit analysis test for economic feasibility because the hearing in this case, as in R.M.I., was conducted prior to the Commission’s decision in Continental Can. Thus, at the time of the hearing, neither party was aware of the cost-benefit economic feasibility test. Moreover, such an inquiry is mandated by the rationale and decision of the Sixth Circuit in the R.M.I. case.[1]

Accordingly, we remand this matter to the Chief Administrative Law Judge for assignment to an administrative law judge[2] for the specific purpose of reopening the record to take evidence and to make findings of fact consistent with Continental Can.[3]

SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.,

EXECUTIVE SECRETARY

DATED: MAR 24 1981

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[1] Acting Chairman Barnako considers the evidence of record sufficient to perform the cost-benefit analysis for economic feasibility pursuant to Continental Can. He notes, moreover, that in response to the Commission’s Supplemental Briefing Order neither party requested a reopening of the record. However, the Secretary’s Supplemental Brief concentrated on the question of whether the Continental Can test is appropriate as opposed to the sufficiency of the evidence of record under that test. Because the Commission’s Supplemental Briefing Order was issued before its decision in Samson, which reaffirmed the Continental Can test, the parties may have prepared their briefs assuming that the Commission was considering the adoption of a test for economic feasibility other than that set out in Continental Can. Accordingly, because the parties may have been under a mistaken impression as to the views of the Commission on economic feasibility, Acting Chairman Barnako agrees to the remand of this case and the reopening of this record.

[2] Administrative Law Judge Louis J. Rubin, who initially decided this case, has retired.

[3] The judge’s findings of fact must be predicated on costs and benefits as they existed at the time of the alleged violation.