ATLANTIC STEEL COMPANY
OSHRC Docket No. 13439
Occupational Safety and Health Review Commission
January 16, 1978
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Reg. Sol., USDOL
Robert C. Young, for the employer
OPINION:
DECISION
BY THE COMMISSION:
The issue in this case is whether Respondent (Atlantic) violated the Secretary's noise standard n1 by failing to implement feasible noise controls in its steel fabrication mill. Judge James D. Burroughs concluded that Atlantic violated the standard.
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n1 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.
Table G-6 entitled "Permissible Noise Exposures" includes the following:
|
|
Sound level dBA |
|
Duration per day, hours |
slow response |
|
8 |
90 |
|
6 |
92 |
|
4 |
95 |
|
3 |
97 |
|
2 |
100 |
|
1 1/2 |
102 |
|
1 |
105 |
|
1/2 |
110 |
|
1/4 or less |
115 |
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Atlantic has petitioned for review of Judge Burroughs' decision on several issues. For the reasons that follow the Commission finds all of Atlantic's contentions except for the issue it raises concerning economic feasibility to be without merit. On the question of whether noise controls are economically feasible, the Commission remands the case for further proceedings.
The citation followed an OSHA inspection of Atlantic's Atlanta, Georgia, steel fabrication mill. It alleged that Atlantic failed to use feasible engineering or administrative controls to reduce sound levels within permissible limits for merchant mill employees performing the work of rougher, assistant roller, and shearman. At the hearing the parties stipulated that on April 23, 1975, the minimum exposures for an eight hour day were as follows: 94.1 dBA for the rougher; 91.9 dBA for the assistant roller; and 91.4 dBA for the sherman. Evidence at the hearing centered upon whether engineering or administrative controls to reduce sound levels were feasible at Atlantic's mill.
The rougher in Atlantic's mill spends a considerable amount of time, averaging approximately four hours per [*3] day but varying according to the operation of the mill, sitting at a control panel located near where the roughing stands are assembled. Howard Pelton, the Secretary's expert witness, testified that construction of a three-sided booth, which could be used while the rougher works at the control panel, would reduce the noise level by about 7-10 dBA and a fourth side on the booth would provide another 5-7 dBA reduction. According to Pelton, a two-sided barrier made of absorption material placed near the area where the rougher changes the roughing stands would also reduce the noise level in that area by 4-5 dBA. Although noise levels for the rougher outside the booth, in the view of Pelton, might still exceed table G-16 noise levels, noise would be below G-16 levels when the rougher is in the booth.
The assistant roller's job consists primarily of gauging the steel product at the pull-up rolls of Atlantic's production line. The assistant roller gauges the product on the average of once every 15-20 minutes, and the gauging takes only 5 to 30 seconds. Otherwise, his time is free. Pelton testified that a booth enclosing the bench area which is utilized by the assistant roller during [*4] his free time would reduce noise levels by 7-10 dBA and would achieve compliance with the requirements of table G-16.
The shearman operates the shear which cuts the steel product into proper lengths. Pelton proposed the following engineering controls to reduce the noise exposure of the shearman:
(1) Replacement of the present cooling fans with slower speed fans with larger diameters;
(2) Provision of a pressure roll on the existing drag rolls to reduce the metal clatter;
(3) Construction of a barrier with a vision panel and absorption material on the inside right of the shearman's work position and of a second barrier to the left of the shearman;
(4) Construction of a glove box; n2
(5) Enclosure of the break area utilized by the shearman.
Pelton testified that enclosure of the break area alone would probably reduce noise levels to below those of table G-16.
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n2 The Secretary conceded in its brief that this suggestion was not feasible based on the evidence of record.
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The large gearing mechanism that drives the [*5] pinions in the rolling mill area and the couplings of the mill machinery which creates a metal-to-metal clatter were identified as two major noise sources in the mill. Pelton estimated that a four-sided enclosure for the gear box would reduce the noise level at the gear box by 15 to 20 dBA. Noise from the couplings, according to Pelton, could be reduced by 2-3 dBA by utilizing urethane within the couplings and by tightening up the equipment. Implementation of these two source controls would benefit the rougher and assistant roller.
Atlantic utilized the testimony of two noise consulting experts, Richard K. Miller and James H. Botsford, and of several company employees in arguing that noise controls were not technologically feasible in its mill. Atlantic raised numerous objections to the construction of a booth for the rougher. n3 It contended that there was not enough room in the roughing area of the mill to build a booth large enough for the rougher to perform his duties. It also argued that the booth would block the passage of materials in the mill and would interfere with the operation of the crane, which has to pass through the area where the booth would be located. Atlantic's [*6] safety manager felt that the booth was unsafe since cobbles from the mill could strike the booth and a suspended load on the crane above the booth could fall and hit it. Other objections to the booth were that it would impair visibility on the job, would be a nuisance, would subject the rougher to heat exposure, and would not be utilized enough to provide significant noise reduction. Concerning the booth proposed for the assistant roller, Atlantic contended there would be ventilation problems and that it would be difficult to monitor the use of the booth.
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n3 Atlantic's noise experts, however, agreed with Pelton that the booth would provide noise reduction of about 7 dBA.
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Atlantic also disputed that construction of noise barriers for the shearman and rougher would achieve significant noise reduction. Miller testified that the barrier would provide no noise reduction for the rougher due to sound reverberation in the area, while Botsford stated that there would be a problem with reverberant sound. Miller also testified [*7] that he had constructed a prototype of a barrier, as suggested by Pelton, to the right of the shearman and that this barrier provided no reduction in the noise level. However, this barrier had no absorption material on the inside and it was located some eight feet from the shearman's work position. Miller conceded that an appropriate barrier could provide a 2-3 dBA reduction for the shearman; however, he believed that the barrier would have to be larger than envisioned by Pelton.
Atlantic also disputed the technological feasibility of using pressure rolls on the existing drag rolls, of the glove box arrangement for the shearman, and of utilizing urethane within the couplings. It argued that administrative controls proposed by the Secretary were infeasible. It did not contest the technological feasibility of providing a quiet area for the shearman during his free time, of changing the cooling fans, or of enclosing the gear box. However, it did argue that controls proposed by the Secretary would not reduce noise to G-16 levels. Miller opined that after controls were implemented the shearman would still be exposed to noise in excess of 90 dBA for an eight hour day, the assistant [*8] roller would be exposed to over 90 dBA noise levels on days when he spends a lot of time in the cooling bed area, and the rougher would be exposed to over 90 dBA levels even when he is within the proposed booth.
Judge Burroughs found the following noise controls proposed by the Secretary to be feasible: construction of booths for the rougher and assistant roller; construction of noise barriers for the rougher and shearman; enclosure of the shearman's break area; replacement of present fans in the shearman area with slower speed, larger diameter fans; and enclosure of the gear box. The Judge ruled that the following controls were not proven to be feasible by the Secretary: the glove box arrangement for the shearman; the pressure roll device for the drag rolls near the shearman; utilization of urethane material in the couplings; and use of administrative controls for the shearman. He found that the safety and operational problems raised by Atlantic regarding the rougher's booth could be solved by proper construction of the booth and by minor rearrangement of the layout of Atlantic's mill. He found that the barrier proposed for the rougher would achieve some noise attenuation, although [*9] not necessarily below 90 dBA in that area. However, Judge Burroughs determined that the combination of the booth and the barrier would reduce the rougher's sound exposure, based on the 94.1 dBA level recorded on April 23, 1975, to within the requirements of table G-16. In regard to the assistant roller and the shearman, the Judge found that the proposed controls would bring the noise exposure of both employees to below table G-16 requirements.
Atlantic argues that the case record does not support by the preponderance of the evidence that engineering controls are technologically feasible in its mill. We reject this argument. Judge Burroughs' findings that engineering controls were technologically feasible were adequately supported in each instance by the testimony of the Secretary's expert witness. Thus we conclude that the preponderance of the evidence supports the position that engineering controls are technologically feasible. Stimson Contracting Co., 77 OSAHRC 38/A2, 5 BNA OSHC 1176, 1977-78 CCH OSHD para. 21,675 (No. 13812, 1977).
Atlantic also contends that the Secretary has not proved that engineering controls are feasible under 29 C.F.R. 1910.95 since it has not [*10] shown that noise levels below those specified in Table G-16 can be achieved. However, Judge Burroughs found that the controls proposed by the Secretary would bring the rougher, assistant roller, and shearman within Table G-16 requirements, and we have no reason to reject the Judge's finding. Further, the Commission has held that proof that controls will reduce noise to Table G-16 levels is not necessarily required in order to establish a violation of the noise standard. Continental Can Company, 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD para. 21,009 (No. 3973, 1976), pet. for review withdrawn, No. 76-3229, 9th Cir., April 26, 1977. Accordingly, this contention is also rejected.
Atlantic also claims that it was prejudiced by the language of the citation n4 and by remarks by Judge Burroughs n5 that indicated that the Secretary had the burden of proving that proposed controls were capable of reducing sound to the levels of Table G-16. We find this argument to be without merit. The reference to G-16 limits in the citation was incidental to the main thrust of the allegation, which was that engineering and administrative controls were not used to reduce noise levels. [*11] There is no indication that Atlantic was prepared only to defend on the basis that G-16 limits could not be achieved. Rather, Atlantic at the hearing directly challenged the Secretary's evidence that noise controls were technologically feasible. The Judge's remarks in question came at the end of the hearing and thus did not affect Atlantic's presentation of evidence. We find that the Judge's remarks were intended as a suggestion to the parties for organizing their briefs rather than as a delineation of the burden of proof in the case. Even assuming Atlantic was misled as to its burden, there was no prejudice since the Judge found that controls would reduce noise levels below the G-16 levels. Hence, we are unable to conclude that Atlantic was unfairly misled as to the burden of proof.
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n4 The citation stated that Atlantic:
Failed to reduce sound levels below values of Table G-16 by use of feasible administrative or engineering controls, exposing employees to the hazard of excessive noise in the following areas:
(a) Rougher in Merchant Mill
(b) Assistant roller in Merchant Mill
(c) Shearman in Merchant Mill
Engineering Compliance Program is to be submitted within 60 days.
n5 Atlantic points to the following statement by Judge Burroughs:
So, you can submit a brief on anything you want. I say that it probably would be better to analyze the evidence from the standpoint of whether or not it can be lowered to ninety dBA or below. I think that is what the government tried to show -- that it can be lowered to ninety dBA or below.
[*12]
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During the hearing Judge Burroughs refused to allow Atlantic to introduce evidence concerning its hearing conservation program and the use of personal protective equipment by its employees, and Atlantic takes exception to this ruling. But Atlantic did not dispute the Judge's ruling at the hearing and withdrew its proffer of evidence. Because Atlantic withdrew its proffer of evidence, we are unable to conclude that the Judge's ruling excluding the hearing conservation program evidence was prejudicial error. Fed. R. Evid. 103(a).
Since Judge Burroughs issued his decision, a divided Commission has held that the Secretary has the burden of proving the economic as well as the technological feasibility of noise abatement controls. Continental Can Company, supra; Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD para. 21,854 (No. 10925, 1977), pet. for review filed, No. 77-2565, 9th Cir., July 14, 1977. The Seventh Circuit Court of Appeals has upheld the Commission's position that the economic feasibility of noise controls must be considered. Turner Company v. Secretary [*13] of Labor, 561 F.2d 82 Aug. 31, 1977. Since the record of the instant case lacks sufficient information to determine whether noise control is economically feasible in accordance with the decision in Continental Can Company, the case is remanded to afford the parties an opportunity to present evidence on that issue. n6 Chairman Cleary, who dissented in Continental Can Company and Castle & Cooke Foods, continues to adhere to his position that the term "feasible" as it appears in Section 1910.95(b)(1) should be interpreted so as to exclude economic considerations except in setting an abatement period. He agrees, however, to remand the case in order to avoid the less desirable alternative of having an evenly divided vote that would fail to resolve the issues of this case. Price-Potashnick-Codell-Oman, No. 13171 (December 15, 1977); KLI, Inc., 77 OSAHRC 202/A2, 6 BNA OHSC 1097, 1977-78 CCH OSHD para. 22,350 (No. 13490, 1977).
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n6 Although Atlantic does not specifically frame its argument in terms of "economic feasibility", it contends that "[t]he crucial issue . . . is whether the Secretary has the power to force an employer to expend large sums in testing nd implementing engineering controls when it has not been demonstrated that such devices are capable of reducing sound levels below those required, and it is known that hearing protection devices, if used alone, would or could achieve the desired decibel reduction." Atlantic in its brief also noted that it intends to phase out its steel fabrication mill in approximately two years and that Mr. Pelton (the Secretary's expert) did not discuss the costs of controls advocated for this temporary situation. This argument directly raises the issue of economic feasibility as the Commission defined it in Continental Can Company.
[*14]
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Accordingly, the Administrative Law Judge's decision is vacated and the case is remanded for further proceedings consistent with this opinion.