UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77-3266
DRUTH PACKAGING CORPORATION,
Respondent.

August 20, 1980

DECISION

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge David H. Harris is before the Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). In his decision, Judge Harris affirmed a citation alleging that the Respondent, Druth Packaging Corporation, failed to comply with 29 C.F.R. §§ 1910.95(a) and 1910.95(b)(1) in that (A) employees working at corrugators numbers 1 and 2 were not protected against the effects of noise at impermissible levels and (B) the Respondent failed to utilize feasible administrative or engineering controls to reduce those sound levels. The judge also implicitly adopted the four-step abatement plan proposed by the Secretary of Labor (‘the Secretary’).[1] Specifically, he entered a finding ‘that the dates for abatement of each Step in the citation, as amended, are reasonable . . .’ The Respondent petitioned for review of the judge’s decision and Commissioner Barnako directed review ‘on the issues raised by the petition.’

We conclude that the primary issue before us is whether the judge erred in ordering the Respondent to comply with the abatement dates proposed by the Secretary in his citation as amended.[2] We further conclude that the judge’s abatement order is based on a finding, supra, that is not supported by the evidence of record. Accordingly, we reverse that part of the judge’s decision that affirmed the Secretary’s proposed abatement dates and remand this case for the limited purpose of establishing an appropriate order.

After receiving the citation alleging noncompliance with 29 C.F.R. §§ 1910.95(a) and 1910.95(b)(1), the Respondent filed the following notice of contest:

Please be advised that we are contesting steps 2, 3 and 4 of . . . [the initial citation]. After a pretty thorough investigation we find that there are no solutions available to the corrugation industry at this time, other than hearing protectors, which we have made available to our employees 18 months ago.

The Secretary thereafter filed his complaint and the Respondent filed its answer in the form of a letter. The answer essentially reiterated the statements of the notice of contest and included the acknowledgement that ‘[i]n our original letter of contest . . . we only contested steps 2, 3, & 4 of . . . [the initial citation].’[3]

At the hearing, the Secretary presented the testimony of two witnesses: Ernest J. Giangreco, the compliance officer who conducted the inspection that resulted in the instant proceeding, and Norman L. Meyerson, an acoustical engineer who prepared a report for the Secretary (Exhibit P–5) on the feasibility of engineering controls to reduce the noise levels at the Respondent’s workplace. These witnesses presented testimony and other evidence relating to all elements of the Secretary’s burden of proving noncompliance with sections 1910.95(a) and 1910.95(b)(1). See generally, Samson Paper Bag Co., 80 OSAHRC ——, 8 BNA OSHC 1515, 1980 CCH OSHD ¶ 24,555 (No. 76–222, 1980) [§ 1910.95(b)(1)]; Boise Cascade Corp., Composite Can Div., 77 OSAHRC 43/A2, 5 BNA OSHC 1242, 1977–78 CCH OSHD ¶ 21,714 (No. 802, 1977), pet. filed, No. 77–2201 (9th Cir. May 31, 1977) [§ 1910.95(a)]. The Respondent’s representative, see note 3 supra, presented several objections to various aspects of the Secretary’s case but made no effort to introduce evidence in rebuttal of any part of that case.

At the outset of his decision, Judge Harris observed that, ‘[w]hile it may be argued that it was the respondent’s intention to contest only the abatement program set out in the citation, the matter was tried as though the contest were a full one.’ Accordingly, he proceeded to discuss and to rule upon the citation’s allegation that the Respondent failed to comply with sections 1910.95(a) and 1910.95(b)(1). Based on his examination of the record, he entered the following findings:

(1) ‘each of the employees referred to was exposed for a period in excess of six hours to noise which far exceeded the 92 dBA permitted in the table at G–16’;[4]

(2) ‘[a]lthough hearing protection was available if requested . . . the respondent did not have . . . a program for hearing conservation for the protection of his employees’ and hearing protection was not worn;

(3) the Secretary’s expert witness testified that feasible controls—specifically, either rigid or non-rigid barriers around the two corrugators and roofs suspended a few inches over the barriers—are available; that the cost of these controls would be approximately $7600 for the rigid barrier or approximately $2600 for the non-rigid type; and that the controls ‘would produce a reduction of between 3 and 8 dBA’; and

(4) ‘[t]he respondent introduced no evidence which would indicate . . . that the engineering controls described by complainant’s expert were not feasible.’

‘In light of the foregoing,’ Judge Harris concluded, ‘I have no difficulty in finding that the respondent herein was in violation of the standard at 29 C.F.R. 1910.95(a) and .95(b)(1) as charged by the citation.’[5]

The Respondent thereafter filed a one-page petition for review of the judge’s decision. This petition was divided into two parts: (1) a statement of that part of the decision and order to which exception was taken and (2) a statement of reasons for which the exception was taken. In the first part only one exception was stated, i. e., an exception to the judge’s finding that the abatement dates in the citation as amended were reasonable. In the second part, two arguments were stated in support of the exception. First, the Respondent argued that the acoustical engineer had given no testimony indicating ‘that the period for abatement . . . was in any way reasonable for the construction of the sound barriers he recommended.’ Second, the Respondent contended that, ‘at best expectation, the barriers described would not end the alleged violation, thus making them not feasible.’ The Respondent based this argument on evidence it cited indicating that the projected 3–8 dBA reduction if the recommended controls were implemented would not be sufficient to reduce the noise levels at its workplace within permissible limits.

As indicated previously, the direction for review granted the Respondent’s petition. Neither party responded in any manner to the direction for review.

The initial matter to be resolved is a determination of the issues before us on review. This proceeding was initiated by an ambiguous notice of contest. The primary intention of the employer in its notice of contest, as stated by Judge Harris, was ‘to contest . . . the abatement program set out in the citation.’ Although not clearly formulated, the Respondent’s secondary intention appears to have been to contest the Secretary’s allegation that the Respondent failed to implement feasible engineering controls to reduce the noise levels. The Respondent’s answer merely reinforces our conclusions. It does not indicate an intent to expand the scope of the Respondent’s contest. At the hearing, the Respondent made no attempt to rebut the Secretary’s evidence as to its noncompliance with the cited standards. In particular, as noted by Judge Harris, it ‘introduced no evidence which would indicate . . . that the engineering controls described by complainant’s expert were not feasible.’ In its petition for review, the Respondent again focused on the abatement program set out in the citation as amended, identifying that part of the judge’s decision to which it took exception and limiting its statement of exceptions to the judge’s finding as to the reasonableness of the abatement dates. Significantly, the Respondent did not take exception to the judge’s finding (and conclusion) ‘that the respondent herein was in violation of the standard at 29 C.F.R. 1910.95(a) and .95(b)(1) as charged in the citation’, despite the fact that that finding immediately preceded the finding to which it did take exception.

The Respondent’s petition did include a single, discrete argument relating to the judge’s conclusion that it failed to comply with 29 C.F.R. § 1910.95(b)(1). However, the limited issue raised is one that is controlled by Commission precedent and therefore easily resolved.[6]

Based on this record, we conclude that the merits of the Secretary’s amended citation are not otherwise at issue before us. See note 2 and 6 supra. The only remaining issue on review is whether the judge erred in affirming the Secretary’s proposed abatement dates. Accordingly, we affirm that part of Judge Harris’ decision and order that affirmed the citation’s allegation of noncompliance with 29 C.F.R. §§ 1910.95(a) and 1910.95(b)(1).

III

The Respondent argues in effect that the judge erred in finding that the abatement dates set forth in the amended citation were reasonable because the acoustical expert presented no evidence indicating that the controls he recommended could be implemented within the time period permitted under the amended citation. We agree in part. The Respondent’s argument raises a question as to whether it has been ordered to implement the controls found feasible by the judge, see note 5 supra, or ordered to comply with the four-step abatement plan set forth in the citation, see note 1 supra and accompanying text. We conclude that Judge Harris has ordered the Respondent to comply with the Secretary’s proposed abatement plan. Nevertheless, our review of the record indicates that there is no evidence as to the amount of time that would be reasonable for the Respondent to complete each of the four steps in the citation’s abatement program. Accordingly, we conclude that the judge erred in finding that the abatement dates proposed in the citation as amended were reasonable and that his finding must be reversed.

Judge Harris did not cite to any evidence of record in support of his finding that the abatement dates for each step in the citation as amended were reasonable. However, he did state in his decision that ‘[t]he respondent introduced no evidence which would indicate that the period for abatement of the alleged violations herein was in any way unreasonable . . ..’ Accordingly, we conclude that the judge’s finding was based not on the record evidence but rather on a misconception of the respective burdens of proof of the parties. When an employer contests a citation, it may place in issue the reasonableness of the abatement date specified in the citation, as the Respondent has clearly done in this case. When the reasonableness of the abatement date is in issue, the burden of proving reasonableness lies with the Secretary. See Gilbert Manufacturing Co., 79 OSAHRC 68/A2, 7 BNA OSHC 1611, 1979 CCH OSHD ¶23, 782 (No. 76–4719, 1979) (lead, concurring, and dissenting opinions). Because the Secretary in this case failed to prove that the abatement dates in the citation as amended were reasonable, the judge erred in finding that they were reasonable.

For the reasons stated above, the judge’s decision and order is affirmed in part and reversed in part. The judge’s affirmance of the allegation that the Respondent failed to comply with 29 C.F.R. §§ 1910.95(a) and 1910.95(b)(1) is affirmed. The judge’s determination that the abatement dates set forth in the citation as amended were reasonable is reversed on the basis of this record. Because there is no evidence of record that would permit us to develop an appropriate order, this case is remanded to the chief judge[7] for assignment to an administrative law judge for the purpose of conducting further proceedings consistent with this opinion, including the taking of additional evidence if necessary.

SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: AUG 20, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77-3266
DRUTH PACKAGING CORPORATION,
Respondent.

July 17, 1978

DECISION

Appearances:

Anthony C. Ginetto, Esq.

Francis V. LaRuffa, Regional Solicitor

United States Department of Labor

1515 Broadway, Room 3555

New York, New York 10036

Attorney for Complainant

Charles P. Schmidt, Plant Manager

General Fibre Division

Druth Packaging Corporation

73–33 Woodhaven Boulevard

Glendale, New York 11227

Harris, Judge

An inspection of the respondent’s manufacturing premises was conducted on September 15, 1977, following which a citation was issued to it on September 20, 1977 pursuant to Section 658(a) of the Occupational Safety and Health Act of 1970 (the Act).

The citation alleged a violation of the standard at 29 CFR 1910.95(a) in that:

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 subpart G of 29 CFR part 1910:

Northcentral side of building, at corrugators number 1 and 2.

The standard provides:

(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 . . ..

Table G–16—Permissible Noise Exposures:

Duration per day, hours

Sound level dBA slow response

100

1-1/2

102

105

1/2

110

1/4 or less

115

The citation also alleged a violation of the standard at 29 CFR 1910.95(b)(1) in that:

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 within those of the table:

Northcentral side of building, at corrugators number 1 and 2.

This standard 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.

The citation required that the respondent abate the charged violation as follows:

Step 1

Effective personal hearing protection shall be provided and used by employee(s) as an interim protective measure on or before October 4, 1977.

Step 2

A written, detailed schedule of abatement, consistent with the complete abatement (final) date shall be submitted to the Area Director. This schedule shall include target dates for items such as: hiring of identified engineering consultants; completion of engineering studies and preliminary surveys; discussions with OSHA and decision on optimally feasible abatement program to be implemented; ordering of equipment and material and completion of design phase; selection of contractor; submission of regular progress reports. Step 2 was to be completed on or before October 20, 1977.

Step 3

Feasible engineering controls and/or administrative controls if no engineering controls are feasible, shall be determined on or before November 18, 1977.

Step 4

Abatement shall be completed at which time feasible administrative and/or engineering controls shall be implemented and employee(s) shall not be subjected to sound levels exceeding those listed in Table G–16 on or before November 18, 1977.

On September 28, 1977, the citation was amended to require the completion of steps 3 and 4 by March 20, 1978.

The respondent filed a Notice of Contest pursuant to Section 659(a) of the Act on October 6, 1977 wherein it stated:

. . . we are contesting steps 2, 3 and 4 of Citation Number G 3211 066 issued September 20, 1977. . . .

The complaint, filed on October 28, 1977, reiterates the allegations in the citations, and restates the abatement steps set out in the citation, omitting however the date by which final abatement of each step it to be accomplished (para. 5). The Respondent, answering the complaint in letter form, reiterates its intention to contest only the steps of abatement required in the citation and in paragraph 2 of his letter which is dated November 4, 1977 and filed on November 7, 1977, alleges that it has purchased new hearing protection and has now mandated its employees in the use of this equipment.

While it may be argued that it was the respondent’s intention to contest only the abatement program set out in the citation, the matter was tried as though the contest were a full one.

Druth’s Packaging Corporation, a corporation organized under the laws of the State of Illinois, with its principal office at 130 North Branch Street in Chicago, Illinois, the respondent, operates a corrugated paper board manufacturing premises at 73–33 Woodhaven Boulevard in Glendale, Long Island, as its General Fibre Division.

The paper board manufactured at these premises is sold not only in New York State but to customers located outside New York State. There are approximately 55 daily employees at this manufacturing premises who are employed in the shop area and the sales of fibre board manufactured at the General Fibre Division approximate a million dollars a year. All of the machines involved in the citation are owned by the respondent and the employees are members of Local 107 Hyman Gordon Pulp & Paper Sulfite Workers, Albee Square, Brooklyn (Tr. 5–11).

On the date of inspection the compliance officer (CO) spent the entire working day, i.e., 7:00 o’clock in the morning until 3:30 p.m., in the plant in question in the conduct of his inspection. During the course of this inspection he took a number of sound level meter (SLM) readings at points located within the manufacturing premises, indicated on a rough hand-drawn chart of the interior of the premises made by the CO (Exh. P–3) and at the points indicated on the Exhibit, took a series of SLM readings at each of the indicated locations which are numbered from 1 to 7 shown on Exhibit P–3. The SLM readings at locations 1, 2, and 3, as shown on Exhibit P–3, were taken at 7:00 o’clock; 7:30; 8:00; 8:30; 9:00; 9:30; 10:00; 10:49; 11:00; 11:30; 12:00; 12:30; 1:00; 1:30; 2:00; 2:30; 3:00; and 3:30 o’clock. The SLM readings at locations 4, 5, 6 and 7 were taken at the following times, 7:50; 8:30; 9:00; 9:30; 10:00; 10:40; 11:00; 11:30; 12:00; 12:30; 1:00; 1:30; 2:00; 2:30; 3:00; and 3:30 o’clock (Exh. P–2B). Reference to Exhibit P–3 indicates that locations 1, 2 and 7 are at corrugating machines, location 3 is at chopper No. 17, location 5 is at the shop office and location 6 is in the general storage area of the plant. Our concern is with the readings at locations 1, 2, 3, and 4. At location No. 1, a corrugating machine, the SLM readings beginning with 7:00 o’clock range from 81 dBA rising to 98 dBA during the hour from two to three and then dropping to 80 dBA at 3:30 p.m.. At location No. 2, another corrugating machine, the readings beginning with 7:00 o’clock in the morning range from 83 dBA rising through 101 dBA during the hour from two to three and also dropping to 80 dBA at 3:30 p.m.. At location No. 4, which is a point between the two corrugating machines just referred to, the SLM readings at 7:50 begin with 92 dBA and rise through a crest of 96 dBA during the hour from two to three and then drop to 76 dBA at 3:30 p.m. (Exh. P–2B).

In addition to the SLM readings, the CO attached a dosimeter microphone to each of three employees who were employed in and about the machines at locations No. 1, 2 and 3. The microphone was attached as close to the person’s ear as possible, being attached to the lapel at shoulder level, while the instrument itself was either carried in the shirt pocket of the individual or attached at belt level (Tr. 20). Depending upon the length of time the dosimeter is worn, it produces a time weighted average resulting in a decibel read-out for the period during which the dosimeter was worn by the employee in question (Tr. 27).

The employees in question were engaged in their duties in and about the machines described for the entire work day beginning with seven o’clock in the morning and ending at three thirty in the afternoon. Each received a thirty minute break for lunch, a fifteen minute interval in the morning, and a fifteen minute interval in the afternoon, for coffee. Deducting an additional thirty minutes to cover washroom time during the day, although there was no testimony concerning this period of time, each of the employees in question was exposed to the noise present in this manufacturing plant, in and about their stations, for a period of approximately six hours and thirty minutes. Reference to the SLM recordings as shown in Exhibit P–2B clearly indicates that each of the employees referred to was exposed for a period in excess of six hours to noise which far exceeded the 92 dBA permitted in the table at G–16.[8]

Although hearing protection was available if requested, according to the testimony of the CO, the respondent did not have nor did he maintain a program for hearing conservation for the protection of his employees. This is evident by a examination of the photographs, Exhibits P–6A through P–6E. Reference to photograph No. P–6A shows a number of employees without hearing aid protection. Two of the employees are shown with hearing conservation protection however it is not in place. Exhibit P–61 also shows several employees who are not wearing hearing protection although the operator of the machine is shown with hearing protection in place.

The acoustical engineer, who was produced and testified for the complainant, made an inspection of the respondent’s plant on January 19, 1978. On that day, according to him, the noise at corrugator No. 1 ranged from 92 to 98 dBA and at a point between corrugator No. 1 and corrugator No. 2 the noise reached 98 dBA (Tr. 52; 58–59). The sound expert’s report, Exhibit P–5, was received in evidence without objection (Tr. 62). He testified that feasible controls to deaden the noise produced by the machines in question are available. He recommended that barriers be erected between each machine to absorb the noise. He stated that barriers constructed of lead and fiberglass should be erected around each of these machines. These barriers were to be 12 feet high on the sides and 10 feet wide by 9 feet long. He submitted a cost estimate which was also received in evidence without objection and marked Exhibit P–7, according to which the cost of the engineering controls which he recommended would be approximately $7,600.00, if the rigid type of barrier was used. If the non-rigid type was used each enclosure would cost approximately $2,600.00. This cost would include suspending a roof over each machine a few inches above the tops of the barriers. In his opinion this would produce a reduction of between 3 and 8 dBA (Tr. 62; 65; 67–82).

The only witness to appear and testify for the respondent was Mr. Charles P. Schmidt, the Plant Manager at the Long Island facility. It was his opinion that the complainant’s expert had not spent enough time in the plant to be able to arrive at a reasonably accurate conclusion (Tr. 103). He testified that he had consulted with acoustical experts in connection with the installation of engineering controls and although these experts had recommended the erecting of enclosures they had not furnished him with cost estimates. (Tr. 104–105). He also stated that he realized that his employees should wear ear protection and they are now ordered to wear the same (Tr. 110).

The respondent introduced no evidence which would indicate that the period for abatement of the alleged violations herein was in any way unreasonable or that the engineering controls described by complainant’s expert were not feasible.

In the light of the foregoing I have no difficulty in finding that the respondent herein was in violation of the standard at 29 CFR 1910.95(a) and .95(b)(1) as charged in the citation. I also find that the dates for abatement of each Step in the citation, as amended, are reasonable, to wit; Step 2, October 20, 1977, Steps 3 and 4, March 20, 1978.

SO ORDERED.

DAVID H. HARRIS

JUDGE, OSHRC

Dated: July 17, 1978

New York, New York

[1] The four steps in the abatement plan were set forth in the citation as follows:

Step 1

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

Step 2

Step 3

Feasible engineering controls and/or administrative controls if no engineering controls are feasible, shall be determined.

Step 4

The citation also stated dates by which each step of the abatement process was to be completed. Approximately one week after the initial citation was issued, the Secretary issued an amended citation in which he extended the period of time allowed for completion of steps 3 and 4.

[2] Any issue neither raised in a petition for review nor directed for review by an individual member upon his own motion, see Commission Rule of Procedure 92(c), 44 Fed. Reg. 70,106 at 70,111 (1979), to be codified in 29 C.F.R. § 2200.92 [formerly Rule 91a(c), 29 C.F.R. § 2200.91a(c)], is not before the Commission on review.

[3] Neither the Respondent’s notice of contest nor its answer made any reference to the amended citation, despite the fact that the amended citation was issued by the Secretary and presumably received by the Respondent prior to the filing of the notice of contest.

We note that the Respondent has apparently appeared throughout this proceeding without the aid of legal counsel. Thus, its plant manager, Charles P. Schmidt, filed the notice of contest and the answer, represented the Respondent at the hearing, and appeared as the Respondent’s only witness at the hearing. The Respondent’s petition for review was filed by its office manager, Mark Phillips.

[4] The judge cited with approval evidence indicating that the employees were exposed to the following noise levels (time weighted average): Manuel Calderon, 98 dBA; Fred Wheeler, 99.4 dBA; Patricia Byrd, 92 dBA. He specifically found that ‘each of the employees in question was exposed to the noise present in this manufacturing plant, in and about their stations, for a period of approximately six hours and thirty minutes.’

[5] Although the judge technically erred in failing to enter formal findings on the issue, we interpret his decision as finding that the engineering controls suggested by the Secretary’s expert witness were both technologically and economically feasible. See Samson Paper Bag Co., supra.

[6] As we noted above, the Respondent’s petition contains a brief statement that the barriers suggested by the Secretary’s expert witness are ‘not feasible.’ The statement was made in the context of a secondary argument in support of the Respondent’s contention that the judge erred in finding that the abatement dates were reasonable. It was not presented as a separate exception to the judge’s decision. We further note that the Respondent’s contention is narrow and limited. The Respondent states that the controls are ‘not feasible’ solely because they ‘would not end the alleged violation.’

We conclude that the Respondent’s argument is without merit and it is therefore rejected. Under Commission precedent, an otherwise feasible control is not rendered infeasible merely because it will not reduce exposure within permissible limits so long as the anticipated reduction is ‘significant’. See, e. g., Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976–77 CCH OSHD ¶21,009 (Nos. 3973 et al., 1976), appeal with-drawn, No. 76–3229 (9th Cir. Apr. 26, 1977). Under the circumstances of this case, the anticipated reduction of 3–8 dBA is clearly significant. Id.

[7] Judge Harris has retired from the Commission since the issuance of his decision in this case.

[8] The dosimeter attached to employee Manuel Calderon furnished a read-out percentage of 295, which is equivalent to a time weighted average of 98 dBA; the dosimeter attached to employee Fred Wheeler furnished a read-out of 348 percent which is equivalent to a time weighted average of 99.4 dBA: the dosimeter attached to employee Patricia Byrd furnished a percentage of 125 equivalent to a time weighted average of 92 dBA.