Docket No. 15803

CYPRUS MINES CORPORATION d/b/a CYPRUS WIRE AND CABLE COMPANY

OSHRC Docket No. 15803

Occupational Safety and Health Review Commission

April 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

William L. Broad and Carter H. Strickland, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of [*2] an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The Judge's holding that respondent had the burden of establishing that it was economically unfeasible to implement engineering and administrative controls to reduce excessive noise levels is contrary to Commission precedent and should not be allowed to stand. Secretary v. Continental Can Company, OSAHRC Docket No. 3973, August 24, 1976. Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since my colleagues do not address any of the matters covered in Judge Fier's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor

Louis D. DeBernardo, for complainant [*3]

William L. Broad, for respondent

Fier, Judge:

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), wherein respondent contests the citation and penalty for one nonserious violation. The citation dated October 30, 1975 was based on an inspection conducted on October 15, 1975. The citation was issued with no proposed penalty pursuant to sections 9(a) and 10(a) of the Act.

In accordance with section 10(c) of the Act, 29 U.S.C. 659(c) respondent, through a letter dated November 12, 1975 noted its timely contest of the citation together with the proposed time and method of abatement set forth under the heading of "Multi-step Abatement."

The citation for an alleged nonserious violation sets forth the following:

Citation No. 1
			Date by which
Item		Description of	alleged violation
No.	Standard	Alleged Violation	must be corrected
1	29 CFR 1910.95	The Loading and Discharge	** One year multi-
	(b)(1)	area of the Billet Furnace	Abatement
		#1 and 2, the Control Pulpit,
		and the Sticker area of the
		Finish Rollers in the Rod-
		Mill, generate sound levels
		that exceed unity when
		calculated on an 8 hour time
		weighted average and exposes
		the operators in these areas
		to excessive sound levels.

[*4]

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** MULTI-STEP ABATEMENT

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I. Immediate Temporary Controls:

(a) Provide employees working within the Billet Furnace, Pulpit and Sticker area with (1) Hearing Protection or (2) Reduce employee exposure to excessive noise levels by administrative controls (for Example, temporary assignment of employee to a low noise area).

II. Permanent Engineering Controls:

(1). By December 30, 1975 submit to * OSHA a reasonable sequence of dates showing the following minimal information:

(a) An engineering study to determine whether it is feasible to reduce the noise within the Billet Furnace, Pulpit, and Sticker Area by an engineering method.

(b) A date when * OSHA will be notified of the employer's decision whether the noise will be reduced by an engineering method.

(d) A final date showing a date for completion.

(e) Continue immediate temporary controls until completion of permanent engineering controls. [*5]

(f) You may provide * OSHA with a monthly progress report until the completion of permanent engineering controls.

(2). By October 30, 1976, complete engineering controls needed to reduce noise to acceptable levels.

No penalty was proposed.

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* Mr. Chester C. Whiteside, Area Director, U.S. Department of Labor, Occupational Safety & Health Adm., 203 Midtown Plaza, 700 East Water Street, Syracuse, New York 13210

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Standard as promulgated:

29 CFR § 1910.95 Occupational noise exposure.

(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.

(2) If the variations in noise level involve maxima at intervals of 1 second or less, it is to be considered continuous.

(3) In all cases where the sound levels exceed the values shown herein, [*6] a continuing, effective hearing conservation program shall be administered.

Table G-16 - Permissible
Noise Exposures n1

	Sound level
Duration per	dBA slow
day, hours	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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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: C1/T1+C2/T2 Cn/Tn 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.

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

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ISSUES

1. Whether the respondent violated the Occupational Safety and Health Act as alleged.

2. Whether the respondent failed to comply with section 29 CFR 1910.95(b)(1); if so, did [*7] it violate section 29 U.S.C. 654(a)(2) of the Act.

3. Whether the proposed multi-step abatement plan of the Secretary of Labor should be modified or vacated.

STATEMENT OF THE EVIDENCE

The respondent, through a stipulation on the record and by way of its pleadings, essentially showed that it has approximately one million square feet of factory space. It employs about one thousand employees (T. 6, 16). * In addition, it manufactures a product that is used in other states.

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* Denotes transcript page.

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Ruben Isaacson, an industrial hygienist, employed by the United States Department of Labor as an Occupational Safety and Health compliance officer (hereafter referred to as C.O.), inspected the respondent's factory on October 14 and 15 of 1975 (T. 20, 24). During the course of the inspection, the C.O. made sound level readings with a hand-held meter at various specified locations of the rod mill (T. 24; Exh. C-3). The noise level recordings in the rod mill were made during the course of one full working day (T. [*8] 45). In addition, further noise samplings were taken by Norman Meyerson at specified locations in the rod mill on March 8, 1976 (T. 79; Exh. C-53). Mr. Meyerson is a consultant in accoustics to the Secretary of Labor (T. 73). The noise samplings of the C.O. revealed that in all of the areas sampled during the day, the readings showed a low of 96 dBAs and a high of 116 dBAs (T. 62-67; Exh. C-39). Mr. Meyerson's readings on March 8, 1976 revealed that in all of the areas sampled, the readings showed recordings of a low of 94 dBAs to a high of 114 dBAs. Allowing for tolerance variations and the fact that Mr. Isaacson's tests were during an entire work day, both test results were in substantial agreement (T. 79-83; Exh. C-53).

Mr. Meyerson testified that there are feasible engineering controls to reduce the noise levels below those specified in table G-16 of the standard (T. 95).

The respondent testified that in considering the noise reduction of the plant, other considerations, such as shutdown time, cost, alternatives and effectiveness must be considered (T. 119).

OPINION

The facts in this matter are relatively undisputed. The respondent presented no evidence to dispute [*9] the Secretary's noise level recordings. The evidence shows that all of the recordings exceeded the permissible noise exposures set forth in Table G-16 of the standard. The initial conclusion that must be drawn from the foregoing is that the noise levels in the respondent's factory exceeded those permitted in the table G-16 of the standard 29 CFR 1910.95(b)(1). See Secretary v. Ford Motor Co. Docket No. 11542 OSAHRC ; CCH P20155; BNA 3 OSHC 2089 (November 3, 1975); Secretary v. B.W. Harrison Lumber Co., Docket No. 2200 OSAHRC (R.C. April 14, 1976); CCH P20623; BNA 4 OSHC 1091. The Secretary, as a result of the noise tests, has with sufficient specificity carried its burden of proof in establishing the fact that the noise levels in the rod mill exceeded those permitted in the standard.

The respondent raised the question as to whether it is required, by the standard, to institute noise reduction compliance by the use of administrative or engineering controls, or, does the standard permit it to utilize personal protective equipment in the alternative. The standard provides that where the noise levels exceed the permissible exposures of the G-16 table, [*10] administrative or enginnering controls shall (emphasis added) be utilized. The standard does not make the utilization of administrative or engineering controls optional, but rather, indicates that it is mandatory in the first instance. The standard also provides, where the implementation of "feasible" administrative or engineering controls fail (emphasis added) to reduce the noise levels to those within the G-16 table, then, personal protective equipment shall (emphasis added) be provided and used.

The use of the word "feasible" has apparently created some doubt regarding the necessity of utilizing such engineering controls in lieu of personal protective equipment because of the costs involved. The term "feasible" has been interpreted to mean, capable of being successfully done or accomplished. Hillock v. Bailey, 223 A[2d] 426, 434; feasible, means capable of being done, possible, and in certain circumstances, reasonable. DeLap v. Institute of America, Inc., 143 N.W.[2d] 476, 478; see also Mastorgi v. Valley View Farms, 83 A[2d] 919, 921. Interpretation of the word in the context of the Occupational Safety and Health Act has also [*11] been crystallized by the Circuit Court of Appeals. The court, in deciding the guestion of whether the Secretary may take economic relevance into account when considering "feasibility" stated:

"the statutory authority for the promulgation of standards reads in relevant part:

The Secretary . . . shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity. . . .

29 U.S.C. § 655(b)(5) (emphasis supplied). . . .

There can be no question that OSHA represents a decision to require safeguards for the health of employees even if such measures substantially increase production costs. This is not, however, the same thing as saying that Congress intended to require immediate implementation of all protective measures technologically achievable without regard for their economic impact. To the contrary, it would comport with common usage to say that a standard that is prohibitively expensive is not "feasible.". . . .

The thrust of these remarks would seem to be that practical considerations can temper protective requirements. Congress does not [*12] appear to have intended to protect employees by putting their employers out of business -- either by requiring protective devices unavailable under existing technology or by making financial viability generally impossible.

This qualification is not intended to provide a route by which recalcitrant employers or industries may avoid the reforms contemplated by the Act. Standards may be economically feasible even though, from the standpoint of employers, they are financially burdensome and affect profit margins adversely. Nor does the concept of economic feasibility necessarily guarantee the continued existence of individual employers. It would appear to be consistent with the purposes of the Act to envisage the economic demise of an employer who has lagged behind the rest of the industry in protecting the health and safety of employees and is consequently financially unable to comply with new standards as quickly as other employers. As the effect becomes more widespread within an industry, the problem of economic feasibility becomes more pressing. For example, if the standard requires changes that only a few leading firms could quickly achieve, delay might be necessary to avoid [*13] increasing the concentration of that industry. Similarly, if the competitive structure or posture of the industry would be otherwise adversely affected -- perhaps rendered unable to compete with imports or with substitute products -- the Secretary would properly consider that factor. These tentative examples are offered not to illustrate concrete instances of economic unfeasibility but rather to suggest the complex elements that may be relevant to such a determination."

Industrial Jnion Department, A.F.L.-C.I.O., et al v. Hodgson, Secretary of Labor - 499 F[2d] 467 (1974).

The foregoing makes it quite clear that where the respondent raises the issue of "feasibility" and seeks to interject the factor of economic cost, this must be weighed with all of the other evidence in the case. However, it also follows that the burden of establishing economic unfeasibility would fall on the respondent since it is the party asserting it.

The court in affirming the Review Commission in another cases where the question of economic feasibility arose stated; "We recognized that the economic feasibility of an occupational safety and health standard was relevant to our assessment of its [*14] statutory validity." Atlantic and Gulf Stevedores, Inc., et al v. Occupational Safety and Health Review Commission, Docket No. 2818; 16 OSAHRC 770; F2 (3rd C.A. AFFMD March 26, 1976) BNA 4 OSHC 1061, CCM P20578. In the same case, the court also held that in an affirmative defense to a citation, the petitioning employer bears the burden of proof on the issue. Secretary v. Grossman Steel and Aluminum Corp., Docket No. 12775 (R.C. May 12, 1976) OSAHRC . Therefore, where the respondent alleged that the standard was economically unfeasible, it was required to produce evidence in the proceeding before the Administrative Law Judge to support this position.

The unrebutted evidence in the instant case has established that the utilization of engineering controls to reduce noise exposure to acceptable limits is feasible at each location (T. 95-97). While the respondent raised the factor of economic cost as a defense, no specific evidence in support thereof was presented (T. 119). The respondent also failed to present evidence that would demonstrate that the feasibility of the engineering controls suggested by the Secretary's expert would be ineffective. Secretary [*15] v. Love Box Company, Docket No. 6286 (R.C. April 7, 1976) OSAHRC , BNA 4 OSHC 1138, CCH P20,588. The respondent did present convincing and logical arguments to its request for additional time to implement the required noise reduction controls. The Secretary has not vigorously opposed the respondent's request and it appears to be reasonable. In addition, the respondent stated that it has already provided its workers with personal protection equipment and monitors its use by the workers (T. 121). The requested extension of the abatement period, until November, 1977, under the circumstances is not unreasonable and is in keeping with the intent of the statute. In considering the above disposition, the respondent's history and concern for the safety of its employees have all been considered along with the other criteria of section 17(j) of the Act. The proposed zero penalty is found to be appropriate under the circumstances.

All motions not previously disposed of are herewith denied.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following facts:

1. Respondent Cyprus Mines Corporation, is engaged in the manufacture [*16] of wire and cable. The manufactured materials are used and shipped across state lines.

2. Respondent's rod mill plant at Rome, New York, generated noise at the various locations tested which varied from 96 dBAs to 116 dBAs.

3. The noise levels recorded, exceed the permissible exposure levels set forth in table G-16 of 29 CFR 1910.95(b)(1).

4. The respondent's employees working in and around the rod mill were exposed to noise levels in excess of those of table G-16 of 29 CFR 1910.95(b)(1).

5. Feasible engineering controls can be introduced to the rod mill which will reduce the noise levels to the permissible level set forth in the G-16 table of the standard.

6. Engineering controls necessary to reduce the noise exposure to a permissible level can reasonably be accomplished by November 30, 1977 (T. 124-5) at a cost that is economically feasible.

CONCLUSIONS OF LAW

1. The respondent is and was at all times herein engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. [*17] Respondent violated 29 U.S.C. 654(a)(2) by failing to comply with 29 CFR 1910.95(b)(1).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is hereby

ORDERED that:

Citation number one, item one is affirmed. No penalty is assessed. The multi-step abatement of the violation is modified only to the extent of extending the date to November 30, 1977, by which complete engineering controls needed to reduce noise to acceptable levels shall be accomplished.

SEYMOUR FIER, JUDGE, OSHRC

Dated: June 14, 1976

New York, New York