Docket No. 12074

COX ENTERPRISES, INC., d/b/a ATLANTA NEWSPAPERS

OSHRC Docket No. 12074

Occupational Safety and Health Review Commission

December 29, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

John E. Donovan, for the employer

Frederick W. Cory, for the employees

Atlanta District Lodge Number 46, I.A.M, for the employees

Atlanta Paperhandlers Union Number 28, for the employees

OPINION:

DECISION

BY THE COMMISSION:

The issue in this case is whether Respondent, Cox Enterprises, Inc., d/b/a Atlanta Newspapers ("Cox"), failed to abate a violation of the noise standard at 29 C.F.R. § 1910.95(b)(1). n1 Resolution of that issue turns on whether engineering controls beyond those Cox had implemented were feasible. Administrative Law Judge John S. Patton found that the Secretary failed to prove the feasibility of additional controls and vacated the failure to abate notification. We set aside his decision and remand for further proceedings.

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n1 29 C.F.R. § 1910.95(b)(1) provides:

§ 1910.95 Occupational noise exposure.

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(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.

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TABLE G-16 -- PERMISSIBLE NOISE EXPOSURES n1

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

n1 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: C[1]/T[1] C[2]/T[2] 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.

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

[*2]

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Cox publishes the major morning and afternoon newspapers in Atlanta, Georgia, the Atlanta Constitution and the Atlanta Journal, and a combined Sunday edition, the Journal-Constitution. On August 23, 1972, the Secretary of Labor ("Secretary") issued a citation to Cox pursuant to section 9(a), 29 U.S.C. § 658(a), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). The citation alleged that Cox violated section 1910.95(b)(1) by failing to implement feasible administrative or engineering controls when sound levels exceeded those listed in Table G-16 of the standard. The citation required that the violation be corrected by August 2, 1973. Cox did not contest the citation, and it therefore became a final order of the Commission pursuant to section 10(a) of the Act, 29 U.S.C. § 659(a). Cox was subsequently granted extensions of the abatement date to November 4, 1974. On December 4, 1974, the Secretary conducted a follow-up inspection at Cox's worksite. As a result of this reinspection, Cox was issued a notification of failure to correct the violation pursuant to section [*3] 10(b) of the Act, 29 U.S.C. § 659(b). Cox's contest of the failure to abate notification is now before the Commission. Cox concedes that excessive noise continued to exist at its worksite after the fianl abatement date of November 4, 1974, but contends that it complied with the citation by installing all feasible engineering and administrative controls to reduce the noise exposure of its employees.

This case involves the noise generated by Cox's printing presses. In Cox's press room are six presses, each consisting of a number of printing units and a folder. When a press is operating, the noise level at the folder of that press is 106-107 dBA. Cox's pressmen have various duties to perform while the presses are running that require their presence at the folder, and they are therefore exposed to these high noise levels. The pressmer also have other duties to perform in the press room and reel room n2 at locations where the noise levels are lower than at the folder, but still in excess of 90 dBA.

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n2 The printing presses are fed newsprint from large reels located underneath the presses. The area in which the reels are located is called the reel room. The reel room and press room, however, are not two distinct rooms, but are sections of a large open area. The same employees work in the reel room as the press room. Moreover, the main noise sources in the reel room are the printing presses, and controls that would reduce noise in the press room would also reduce the noise levels in the reel room. Accordingly, in our subsequent discussion, our references to the press room will also include the area called the reel room.

[*4]

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On a normal day, Cox employs two shifts of pressmen: a night shift to print the next day's Constitution, and a day shift to print that day's Journal. Each shift lasts 7 1/2 hours, but the presses do not run during an entire shift. During a shift, the pressmen work in crews containing at least three members, and the crew members rotate at the presses at 30 minute intervals. Thus, an individual pressman will work a 30 minute period and will then have no duties to perform for at least at hour. It is not unusual for an individual pressman to work consecutive night and day shifts, and a pressman will sometimes work three consecutive shifts. Additional shifts are sometimes added, particularly on Thursdays and Saturdays when certain sections of the Sunday paper are printed. These additional shifts, however, occur during the same time periods as the regular shifts on these days and are manned by different crews than those working the regular shifts. On Saturdays, when the Sunday paper is being printed, a shift will sometimes exceed 7-1/2 hours.

After receiving the original citation, Cox assigned Robert [*5] Simonton, its Directors of Personnel, and Glenn Elvidge, its Director of Engineering and Production, the task of bringing the company into impliance with the noise standard. Simonton and Elvidge concluded that, because of the unpredictable duration of any individual pressman's noise exposure during a working day, the only way to achieve full compliance with the standard was to reduce the noise level in the press room to less than 90 dBA. With this objective in mind, they contacted various consultants and investigated what other newspapers had done to control excessive noise.

At the printing facility of the Dayton Daily News, another newspaper in Cox's chain, Simonton and Elvidge observed an acoustical folder enclosure in use. The enclosure reduced the noise level by 7 dBA, but the noise level outside the folder was still 100 to 101 dBA. They also observed a Wall Street Journal printing plant in New Brunswick, New Jersey, in which a wall-type barrier had been erected between the presses and the employees. They determined that the noise level outside the barrier was 96 dBA. Elvidge also contacted the manufacturer of its presses, MGD Graphics Systems, known in the trade as "Goss." [*6] He learned that Goss had commercially available a folder enclosure that would produce a 10 dBA reduction in the noise level at the folder.

One of the consultants Simonton and Elvidge contacted, M. J. Kodaras and Associates, performed a study of Cox's press room and concluded that there was no feasible means of achieving compliance with the standard short of redesigning the equipment in the room. Two other consultants made recommendations which Simonton and Elvidge found to be unsatisfactory, but they did not elaborate on their reasons for reaching that conclusion. Simonton and Elvidge ultimately concluded that it was impossible to achieve a noise level of less than 90 dBA at the folders of its presses. They therefore determined that the best approach was to isolate the employees from the noise during the periods when the employees had no duties to perform at the presses rather than to attempt to eliminate the sources of noise. A company called Noise Abatement Systems offered to build quiet rooms within the press room and guaranteed that the noise level within the quiet rooms would be less than 90 dBA. Cox contracted to have three such quiet rooms built at a cost of $110,000. [*7] When completed, the noise level within the quiet rooms was between 82 and 85 dBA. Thus, when pressmen were not working at the presses during their 30 minute rotations, they could enter a quiet room in which the noise level was less than 90 dBA. However, while outside the quiet rooms, pressmen were still exposed to noise in excess of the levels permitted by the standard. n3

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n3 The parties stipulated that Cox provided personal hearing protection equipment to its employees and required that such equipment be used whenever an employee was in the press room. However, the provision and use of personal protective equipment does not diminish an employer's responsibility under the standard to implement whatever engineering or administrative controls are feasible to reduce noise levels. See Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1976-77 CCH OSHD P21,023 (No. 3635, 1976), rev'd on other grounds, 561 F.2d 82 (7th Cir. 1977).

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Much of the evidence and argument presented to the judge concerned [*8] whether engineering controls were available to Cox to reduce the noise level in its press room to less than 90 dBA. n4 In vacating the failure to abate notification, the judge found that although "[a] substantial reduction in noise can be accomplished" by use of engineering controls, the Secretary had not proven that such controls were available to reduce noise to that permitted by the standard. n5 Since the judge issued his decision, however, the Commission has held repeatedly that the Secretary is not required to prove that controls can achieve Table G-16 levels in order to establish their feasibility. In Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977), the Commission held that controls are technologically feasible within the meaning of section 1910.95(b)(1) if they are capable of achieving a significant reduction in noise levels. This holding was reiterated in Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD P24,555 (No. 76-222, 1980). The Commission has recently overruled the additional holding of Continental Can that the economic [*9] feasibility of controls must be determined by a cost-benefit analysis. The decision in Sun Ship, however, reaffirmed the holding of Continental Can that controls need not be capable of reducing noise to Table G-16 levels in order to be feasible. Slip op. at 12 n.11.

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n4 The Secretary argued that it was not necessary for controls to achieve Table G-16 levels in order to be feasible but that, in any event, he had proven that Cox could have achieved G-16 levels. Cox argued that it could not have achieved G-16 levels and that controls were therefore not feasible.

n5 The Secretary filed a petition for discretionary review, which Commissioner Cleary granted pursuant to 29 U.S.C. § 661(i). The petition argued that the judge had erred in holding that administrative or engineering controls must achieve the noise levels given in Table G-16 in order to be considered feasible.

After the expiration of the 30-day period in which a Commission member may direct review pursuant to 29 U.S.C. § 661(i), the Secretary filed a supplemental petition for discretionary review, arguing that the judge had erred in finding that engineering controls could not achieve Table G-16 levels at Cox's worksite and in finding that Cox's employees were adequately protected against excessive noise by personal protective equipment. This supplemental petition was brought to the attention of the three members of the Commission, who all agreed that the parties should be afforded the opportunity to brief the additional issues it raised. The parties were notified of this decision through a document entitled "Direction For Review," which was signed by William S. McLaughlin, who was then the Commission's Executive Secretary. This document inadvertently made it appear that Mr. McLaughlin had granted the Secretary's supplemental petition. Cox contends that the issues raised in the supplemental petition are not properly before the Commission because the petition was not timely filed and because only a Commission member, and not the Commission's Executive Secretary, can direct that a case be reviewed.

Our disposition of this case is predicated on the issue raised in the Secretary's original petition for discretionary review. Accordingly, we need not decide whether the issues raised in the supplemental petition are properly before the Commission.

[*10]

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The evidence clearly establishes that engineering controls in addition to the quiet rooms Cox installed ware technologically feasible. Cox's own investigation into printing press noise controls showed that other newspapers, notably the Dayton Daily News and the Wall Street Journal, had achieved significant noise reductions by means of folder enclosures and acoustical barriers. Moreover, folder enclosures for the type of Goss presses Cox owned were commercially available. William Rouse, the manager of product safety and environment for Goss, testified that such an enclosure had reduced the noise at the Lansing State Journal to 90 dBA. Although Rouse stated that he would not recommend the same type of installation for Cox, he believed that the noise levels in Cox's press room could have been reduced significantly, possibly to 90 dBA, by a more complex system of enclosures and sound barriers. Michael Hine, a highly qualified noise expert who testified for the Secretary, was of the opinion that a 9 dBA reduction could be achieved in Cox's press room by partial enclosures around the presses and that [*11] the Lansing-type enclosure, optimized for Cox's operation, could have produced a 20 dBA reduction. n6

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n6 Hine also believed that certain controls in addition to enclosures were feasible. However, if any control that Cox did not implement was feasible, then Cox failed to abate the violation as alleged. Although Cox has been proceeding on the assumption that it must reduce the noise levels to less than 90 dBA because its pressmen sometimes work longer than eight hours per day, the evidence concerning the manner in which the pressmen rotate suggests that each individual pressman spends substantially less than eight hours per day outside of a quiet room, even during a day in which the pressman works a double shift. We note that Table G-16 permits higher noise levels than 90 dBA for periods of exposure shorter than eight hours per day.

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Section 1910.95(b)(1) requires that controls be economically, as well as technologically, feasible. Sun Ship, Inc., supra. In order to be economically feasible, the cost of controls must not be so great as to threaten the employer's long-term profitability and competitiveness, unless the employer's inability to afford the cost of controls results from the employer having lagged behind its industry in providing safety and health protection for employees. Id.

The parties presented some evidence concerning the cost to Cox of installing enclosures similar to the Goss enclosure used at the Lansing State Journal. Hine estimated that the total cost would be $300,000, although it is not clear whether this figure included costs associated with his suggestion that the Lansing design be optimized for Cox's operation. Elvidge testified that Cox had been informed by Goss that an enclosure for each folder would cost $40,000 to $50,000, for a total cost of $240,000 to $300,000 for Cox's six presses. However, Rouse, Goss's manager of product safety and environment, estimated that the Lansing-type enclosures, [*13] modified to take into account the configeration of Cox's press room, would cost $150,000 per press.

This case was tried before the Commission issued its decision in Sun Ship, Inc., supra. Accordingly, the parties were not on notice that Cox's ability to afford the cost of controls was relevant to the economic feasibility of the controls, and the parties presented no evidence concerning Cox's financial condition from which we could conclude whether or not the cost of enclosing its presses would threaten Cox's long-term profitability and competitiveness. Although the parties presented some evidence on the cost of enclosures, they did not focus as sharply on this point as they might have had they known such costs would be relevant. Moreover, the parties have not had the opportunity to argue the impact of our decision in Sun Ship on this case. We will therefore remand this case to allow the parties an opportunity to present further evidence and argument on the economic feasibility of enclosures, and for the judge to apply our holding in Sun Ship to this case. n7

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n7 At one point in his testimony, Simonton stated that noise enclosures "would make it very difficult to operate and work on the press efficiently." This suggests that such enclosures might impose additional, indirect costs on Cox. On remand, the parties may present additional evidence bearing on such indirect costs as well as on the direct cost of enclosures. See Cyprus Wire Corp., supra.

[*14]

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III

The Commission issued a supplemental briefing order asking whether the Commission has the authority to establish a new abatement date if it should affirm the failure to abate notification. This question arises because, if the Commission were to find that additional feasible engineering controls were available to Cox, unless a new abatement date was established for the installation of such controls, Cox could be subject to additional penalties if it should fail to install the controls immediately.

Because we are not affirming the failure to abate notification, the issue stated in the supplemental briefing order need not be decided at this time. However, on remand, the judge should afford the parties the opportunity to present evidence concerning a reasonable time period for the installation of enclosures in Cox's press room. If the judge should ultimately affirm the failure to abate notification, he should then consider whether it is appropriate to establish a new abatement date for the installation of the enclosures.

Accordingly, the judge's decision is set aside, and the case is remanded to [*15] the Chief Judge n8 for further proceedings consistent with this opinion. SO ORDERED.

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n8 Judge Patton has retired.

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CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

The majority opinion sets forth my rationale for the disposition of this case. However, it fails to respond to a fundamental error in the dissenting opinion affecting the application of the noise standard to this and related cases involving engineering and administrative controls. The dissent expresses the Chairman's personal view that engineering or administrative controls should not be preferred over personal protective equipment, n1 notwithstanding the explicit requirements of the standard, 29 C.F.R. § 1910.95(b). However, it is not within the Commission's authority as an adjudicatory body to question the wisdom, effectiveness or appropriateness of a standard promulgated by the Secretary. Sun Ship, Inc., OSHRC No. 16118, slip op. at 23-24 n.20 (Dec. 17, 1982); H.H. Hall Construction Co., 81 OSAHRC 91/D12, 10 BNA OSHC 1042, 1047 1981 CCH OSHD P25,712 [*16] at p. 32,056 (No. 76-4765, 1981) W.J. Lazynski, Inc., 79 OSAHRC 108/B6, 7 BNA OSHC 2064, 2072, 1980 CCH OSHD P24,145 at p. 29,336 (No. 13864, 1979); Austin Bridge Co., 79 OSAHRC 81/A2, 7 BNA OSHC 1761, 1764, 1979 CCH OSHD P23,934 at p. 29,021 (No. 76-93, 1979). n2 Nor is it for the Commission to predict the outcome of presently-pending standard-setting proceedings on personal protective equipment for occupational noise exposure. See Modern Drop Forege Co. v. Secretary of Labor, 683 F.2d 1105, 1111 (7th Cir., 1982); Koppers Co., 77 OSAHRC 44/A2, 2 BNA OSHC 1354, 1974-75 CCH OSHD P19,063 (No. 3449, 1974); United States Steel Corp., 77 OSAHRC 12/C3, 2 BNA OSHC 1343, 1974-75 CCH OSHD P19,047 (Nos. 2975 & 4349, 1974), (alternate holding), appeal dismissed, 517 F.2d 1400 (3d Cir. 1975). n3 The modification of the legal preference established by the noise standard would exceed the Commission's exclusive authority as an adjudicatory body, 29 U.S.C. § 651(b)(3), and contravene the statutory delegation of rulemaking functions to the Secretary, 29 U.S.C. § 655(b). Moreover, it would be contrary to the dissenter's expressed view in Sun Ship, Inc. that it [*17] is the Secretary's exclusive authority to modify a standard through the statutory rulemaking process. Slip op. at 33 n.7, 39 (Rowland, Chairman, dissenting); see also Id., slip op. at 23-25 n.20 (Cottine, Comm'r, concurring). In fact, it now appears that the dissent would "short circuit" the standard-setting process by declaring the requirement for feasible engineering and administrative controls to be "unenforceable" and thus achieve a preference for personal protective equipment that has not been duly promulgated by the Secretary in conformity with the rulemaking requirements of the statute.

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n1 The Chairman relies on note 12 of his dissenting opinion in Sun Ship to conclude that "personal protective equipment is capable of as much as a 20 to 30 dB attenuation in existing noise levels and can reasonably be expected to produce a 10 to 15 dB attenuation." Slip op. at 38. That dissent cited as authority the recent revision of the noise standard to require a hearing conservation program. OSHA Occupational Noise Standard: Hearing Conservation Amendment, 46 Fed.Reg. 4078 (1981) (codified at 29 C.F.R. § 1910.95(c)-(s)). However, the preamble to that modification contradicts the dissent's representation, stating that a more reasonable estimate of the "real world attenuation of hearing protectors" would be 10 dB. 46 Fed.Reg. at 4114.

n2 The dissent overlooks the fact that the hearing conservation program supplements the requirements for feasible engineering and administrative controls. 46 Fed.Reg. at 4078, 4161. The Assistant Secretary expressly deferred any modification of either the permissible exposure level for occupational noise exposure or the priorities among compliance methods. Id. at 4078, 4102, 4105, 4111. The preamble states:

Engineering controls provide more consistent and dependable protection to worker hearing than personal hearing protectors and are still preferred by OSHA.

Id. at 4114. The dissent attempts to accomplish in adjudication what the Secretary declined to do in rulemaking.

n3 Compare 29 C.F.R. § 1910.1000, Table Z-1 (coal tar pitch volatiles standard previously applicable to coke ovens) with 29 C.F.R. § 1910.1029 (coke oven emissions standard).

[*18]

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DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

For the reasons stated in my dissenting opinion in that case, I would find the noise standard unenforceable to the extent that it requires the employer to use "feasible" administrative or engineering controls to reduce noise levels. Accordingly, I would vacate the failure to abate notification at issue here.

In the usual case involving citations to employers for failure to use administrative or engineering noise controls, I have dissented on the above ground without commenting further on the majority's decision. The circumstances of this case, however, are such that further comment is appropriate.

As the majority notes, Cox, having previously been cited for an alleged violation of the noise standard, attempted to abate the violation by installing quiet rooms for use by its employees. In accordance with its decision in Sun Ship, [*19] the majority remands for a determination whether additional measures, specifically enclosure of the presses themselves, would "threaten Cox's long-term profitability and competitiveness." In so doing, the majority fails to give appropriate consideration to the measures Cox has already implemented and to the failure of the additional controls suggested by the Secretary to reduce the noise at Cox's workplace within the levels specified by Table G-16 of 29 C.F.R. § 1910.95(b)(1).

As the majority correctly points out, under the conditions presently existing in Cox's facility, its employees are exposed to excessive noise levels during the time that they are outside of the quiet rooms. As a result of the system of employee rotation in use by Cox, each employee is stationed at the presses for approximately one-third of his total working time, about five hours over two shifts. An employee, therefore, may be exposed to noise levels of as much as 106-107 dBA during that time. n1 However, Cox required its employees to wear personal hearing protection in accordance with Commission precedent holding that such equipment must be used when controls are not sufficient to reduce noise to within [*20] the levels permitted by the standard. n2

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n1 As the majority points out, the presses do not operate continuously but rather intermittently during a shift. According to Cox's witness Simonton, the periods of operation of presses may coincide with an employee's rotation to the presses.

n2 See note 3 of the lead opinion.

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Personal hearing protection would also have to be worn even if Cox were to install the enclosures found by the majority to be technologically feasible. As explained above, employees normally spend approximately five hours during the workday at the presses where noise levels are between 106 and 107 dBA. Reducing these levels to between 95 and 97 dBA n3 would not be sufficient to bring the exposure of Cox's employees to within the limits prescribed by the standard since the standard permits exposure to such levels for only three to four hours. As a result, even if Cox were to implement the further controls which the majority finds technologically feasible, its employees still would have to wear [*21] personal hearing protection for a substantial portion of the time they are working at the presses.

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n3 Although the majority notes the evidence regarding the extent of noise reduction which could be achieved through folder enclosures, it refrains from making a finding as to that reduction. See note 6 of the lead opinion. According to Elvidge, Cox's engineering and production manager, Goss represented that its commercially available enclosures attenuate noise by 10 dBA. This representation is consistent with Hine's testimony that these enclosures had achieved a noise level reduction of 11 dBA at the Lansing State Journal. While both Rouse, an engineer for the press manufacturer, Goss, and Hine, the Secretary's expert, gave opinions that greater reductions could be achieved in Cox's facility, neither specified how such reductions could be accomplished. Rouse had never visited the facility, and he did not consider it appropriate to make secific recommendations on behalf of Goss. Similarly, Hine testified that in order to determine how Lansingtype enclosures could be "optimized" for Cox, a "design analysis study" would have to be performed. Accordingly, the most that can be said for the effectiveness of enclosures on this record is that Cox could reasonably expect a reduction of 10-11 dBA through the installation of the enclosures commercially available from Goss. Cf. Snyder Well Servicing, Inc., 82 OSAHRC 10/C5, 10 BNA OSHC 1371, 1380, 1982 CCH OSHD P25,943 at 32,515 (No. 77-1134, 1982) (Rowland, dissenting in part) (mere opinion, unsupported by any specific evidence, is not a sufficient basis on which to find a violation).

[*22]

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The circumstances here demdonstrate the weakness of the majority's interpretation of the term "feasible" on which I commented in my dissenting opinion in Sun Ship. In attempting to comply with the requirements of the noise standard, Cox determined that it would not be possible to reduce noise levels to within those permitted under the standard by engineering changes to the presses themselves. Considering that its employees work on a rotating basis, Cox decided instead to isolate employees from the presses during most of their working shift. By focusing solely on whether Cox could financially afford to implement yet further controls, without any regard to the nature of the noise problem or the effectiveness of the measures already undertaken by Cox, the majority simply second-guesses Cox's informed judgment as to how best to spend its resources for the protection of its employees. The majority's failure to give due consideration to the combination of guiet rooms and personal hearing protection instituted by Cox is particularly inappropriate in view of the potential effectiveness of hearing protection [*23] in reducing noise levels. As I noted in my dissenting opinion in Sun Ship, slip op. at 35 n.12, personal protective equipment is capable of as much as a 20 to 30 dB attenuation in existing noise levels, and can reasonably be expected to produce a 10 to 15 dB attenuation.

As I concluded in Sun Ship, the majority's interpretation of the standard's requirement that controls be "feasible" is erroneous. For the reasons stated above, that interpretation is also inappropriate when applied to the particular facts of this case. Accordingly, I dissent from the majority's decision to remand this case for further proceedings under the majority's test for economic feasibility.