“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 10609 ANHEUSER-BUSCH, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 13, 1977DECISIONBefore BARNAKO, Chairman; MORAN and CLEARY,Commissioners.CLEARY, Commissioner:??????????? Adecision of Administrative Law Judge William E. Brennan is before the Commissionfor review pursuant to section 12(j) of the Occupational Safety and Health Actof 1970, 29 U.S.C. ? 651 et seq. [hereinafter ?the Act?]. In his decision JudgeBrennan affirmed the Secretary?s citation alleging that respondent violatedsection 5(a)(2) of the Act by failing to comply with the requirements of theoccupational safety and health standard at 29 C.F.R. ?\u00a01910.95.[1] The violation was found tobe nonserious and a $35 penalty was assessed.??????????? Respondent?spetition for discretionary review of this decision was granted. In its petitionand brief respondent challenged the Judge?s decision in respect to only twoissues. First, it is urged that the Judge erred in granting the Secretary?smotion for a continuance so that additional expert testimony on the feasibilityof engineering controls could be procured. Second, respondent asserts that theJudge erred in basing his finding that engineering controls are feasible on thetestimony of the Secretary?s expert witness, an acoustical engineer. Inrespondent?s view, the testimony of its mechanical and design engineers, to theeffect that engineering controls are not feasible, is the only probativeevidence on this issue.??????????? Respondent?sobjection to the granting of the continuance is bottomed on the contention thatthe Secretary was given an unfair advantage in that the testimony ofrespondent?s expert was presented prior to the testimony of the Secretary?sexpert.[2] As a result, respondentargues, the Secretary?s expert was placed in a ?superior position? in preparingand presenting his testimony.??????????? Ourreview of the record convinces us, however, that respondent was not forced tohave its expert testify at that time. To the contrary, it appears thatrespondent?s evidence was received as an accommodation to respondent.Furthermore, respondent?s principal expert also testified after the Secretary?sexpert gave his testimony, as did respondent?s other witnesses. It is thereforeclear from the entire record that respondent suffered no prejudice as a resultof the continuance. Under these circumstances it cannot be said that the Judgeabused his discretion. Cf. Williams Enterprises, Inc., BNA 4 OSHC 1663,CCH 1976 77 OSHD para. 21,071 (No. 4533, 1976).??????????? Concerningthe feasibility issue, respondent contends that the problem it faced inattempting to reduce noise levels involved designing methods of noisereduction, rather than identifying the sources of the noise. It thereforeargues that the testimony of its mechanical engineers outweighed that of theSecretary?s expert.??????????? Wenote, however, that respondent?s contention that engineering controls are notfeasible is based on the assumption that such controlsare never ?feasible? unless they can reduce the noise levels below thosespecified in Table G 16. We have rejected this interpretation of the standard. ContinentalCan Co., Inc., BNA 4 OSHC 1541, CCH 1976 77 OSHD para. 21,009 (No. 3973,1976); Turner Company, BNA 4 OSHC 1554, CCH 1976 77 OSHD para. 21,023(No. 3635, 1976). The Secretary?s expert testified that several simple andeconomical means existed to achieve a significant reduction in the noiselevels.[3] This testimony, ifcredited, is sufficient to show a violation of thestandard. Continental Can Co., Inc., supra; Turner Company, supra. TheJudge accorded greater weight to the testimony of the Secretary?s expert and wehave no reason for differing with his evaluation of the expert testimony. In soconcluding we are impressed by the fact that the testimony of respondent?switnesses was based on an interpretation of the standard that we have rejected.??????????? Accordingly,it is ORDERED that the Judge?s decision finding respondent in violation of theAct for failure to comply with the standard at 29 CFR ? 1910.95 and assessing apenalty of $35 is hereby affirmed.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: JAN 13, 1977?MORAN, Commissioner, Dissenting:??????????? Thecitation should be vacated because respondent did all that was required of itunder the Occupational Safety and Health Act of 1970 to protect its employeesfrom noise hazards. In this connection, Judge Brennan found in his decisionwhich is attached hereto as Appendix A that:The evidence further reveals that since1972 Respondent has had a mandatory personal protective program operating atits Williamsburg brewery at the locations at issue in this case. Various typesof ear protectors, plugs, muffs, etc. have been issued to operators at theselocations and their use has been enforced . . . This aspect of the case as wellas the infeasibility of administrative controls are not seriously challenged byComplainant.[4]\u00a0??????????? Furthermore,the parties stipulated that the personal protective devices provided byrespondent did ?alleviate noise levels . . . to within permissible levels.???????????? Theonly purpose of the Act is to protect employees from workplace hazards. 29U.S.C. ?\u00a0651(b). The gravamen of the charge against respondent is aviolation of the Act?specifically 29 U.S.C. ? 654(a)(2)?not a violation of 29C.F.R. ? 1910.95.[5]It is therefore obvious that such a charge cannot be affirmed unless there isproof that respondent?s employees were subjected to an occupational hazardwhich respondent had not reasonably attempted to abate. See Secretary v.John T. Clark & Son of Boston, Inc., OSAHRC Docket No. 10554, December22, 1976 (dissenting opinion). That proof is lacking in the instant case.??????????? Where,as here, personal protective equipment adequately protects employees fromimpermissible noise levels, it is unjust and contrary to the purpose of the Actto require an employer to expend substantial funds to implement engineeringcontrols. See Secretary v. Continental Can Company, OSAHRC Docket No.3973, August 24, 1976; Secretary v. Turner Company, OSAHRC Docket No.3635, August 24, 1976 (dissenting opinion). This is particularly true in bottleand can packaging facilities whose sanitary conditions are rigidly controlledby the Food and Drug Administration. The sanitary requirements of that agencyhave a substantial bearing on the feasibility of using various engineeringcontrols. The evidence in this case shows that some of the engineering controlsrecommended by complainant?s expert would run afoul of the Food and DrugAdministration?s sanitary requirements. Respondent should not be responsiblefor resolving such conflicts between two agencies, especially where, as here,adequate employee protection is clearly provided.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 10609 ANHEUSER-BUSCH, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 23, 1975DECISION AND ORDERAPPEARANCES:FOR THE SECRETARY OF LABOR Marshall H.Harris, Regional Solicitor Matthew J. Rieder, Esq.U.S. Department of Labor\u00a0FOR THE RESPONDENT Knut C. Heise, Esq. Assistant General Counsel\u00a0Brennan, W. E.; A.L.J.??????????? Thisaction arises under the provisions of Section 10(c) of the Occupational Safetyand Health Act of 1970, 29 U.S.C. 659(c) (hereinafter the Act), to review aCitation for Nonserious Violation of Section 5(a)(2) of the Act, 29 U.S.C.654(a)(2) and penalty proposed thereon, issued pursuant to Sections 9(a) and10(a) of the Act, 29 U.S.C. 658(a) and 659(a) on October 8, 1974 by theSecretary of Labor through the District Supervisor of the Occupational Safetyand Health Administration for Norfolk, Virginia (hereinafter Complainant), toAnheuser-Busch, Inc., (hereafter Respondent), following an inspection of one ofits breweries located at Williamsburg, Virginia (hereinafter worksite) onSeptember 24 and 25, 1974.??????????? Respondentfiled a timely Notice of Contest and after a Complaint and Answer thereto weretimely filed, this case came on for trial, pursuant to Notice at Norfolk,Virginia on February 21, 1975, which was continued on April 8, 1975 inWashington, D.C., being completed on April 9, 1975.??????????? Bothparties were represented by able counsel. No affected employees orrepresentatives thereof desired party status.??????????? Post-hearingbriefs were filed by both counsel by June 11, 1975.??????????? Havingconsidered the entire record herein, the testimony and demeanor of thewitnesses, the exhibits, stipulations, representations and admissions of theparties, it is concluded that the substantial, reliable and probative evidenceof this record considered as a whole supports thefollowing findings of fact and conclusions of law.??????????? TheCitation for Nonserious Violation as issued set forth the following: Standard Abatement Date Description of Alleged Violation 29 CFR 1910.95 1 Nov. 1975 (See Note) \u00a0 The employer failed to implement feasible engineering or administrative controls to reduce the sound levels in the packaging department at the line #10, #20, and #30 fillers and at the climax uncaser. \u00a0 \u00a0Note: To achieve compliance the employer mustdetermine if feasible administrative or engineering controls can be utilized toreduce employee exposure to sound levels within the levels of Table G?16. Useof personal protective equipment is an acceptable method of abatement only ifit has been determined that administrative or engineering controls are notfeasible.??????????? As aninterim measure, personal protective equipment shall continue to be utilizeduntil such time as abatement can be achieved through administrative orengineering controls. In addition, a continuous and effective hearingconservation program shall be administered. In this regard your attention isinvited to the enclosed pamphlet entitled NOISE (OSHA 2067), and particularlyto page 12.??????????? Aprogress report must be submitted to this office at the close of each 30 day period. These reports must specify what has been doneand what remains to be done to effect abatement.??????????? Apenalty of $35 was proposed.??????????? Thecited Standard provides in pertinent part:29 C.F.R. 1910.95(a) Protection against the effects ofnoise exposure shall be provided when the sound levels exceed those shown inTable G?16 when measured on the a scale of a standardsound level meter at slow response.(b)(1) When employees are subjected to soundexceeding those listed in Table G?16, feasible administrative or engineeringcontrols shall be utilized. If such controls fail to reduce sound levels withinthe levels of Table G?16, personal protective equipment shall be provided andused to reduce sound levels within the levels of the table.? Table G-16 Permissible Noise Exposures Duration per day, hours Sound level dba response 8 90 6 92 4 95 3 97 2 100 1 ? 102 1 105 ? 110 ? or less 115 \u00a0??????????? Exposureto impulsive or impact noise should not exceed 140 dB peak sound pressurelevel.(3) In all cases where the sound levelsexceed the values shown herein, a continuing, effective hearing conservationprogram shall be administered.???????????? Respondentin its prehearing submission formulation of the issues stated:Respondent submits that, although theCitation, as subsequently adopted by reference in the complaint, allegesfailure of sound level reductions at 4 specific locations (line 10, 20 and 30fillers and at the climax uncaser) by way of feasibleengineering or administrative controls, there has been no allegation that thesound levels at the said locations do exceed permissible limits.\u00a0??????????? Notwithstandingthe lack of a specific allegation as aforementioned, Respondent admits that, atthe time of the alleged violation, sound levels at these specific locations didexceed, to some degree, permissible noise levels as provided in 29 CFR 1910.95.??????????? Notwithstandingthis admission, Complainant?s Motion to Amend the Citation and Complaint hereinto allege that Respondent?s employees at the stated locations were exposed tosound levels in excess of the limits prescribed in Table G?16 of the citedStandard, made pursuant to Rule 15(b) of the Federal Rules of Civil Procedureat the end of its case in chief, was granted without objection (TR. 476?478).??????????? Thefollowing relevant matters were stipulated to by the parties:A. Anheuser-Busch, Inc., Respondentherein, is a corporation duly incorporated under the laws of the State ofMissouri with principal offices at 721 Pestalozzi Street, St. Louis, Missouri63118.?B. Anheuser-Busch, Inc. operates a number of brewing facilities in various states and hasbeen, at the time of the alleged violation, engaged in a business affectingcommerce.?C. At the time and place of the allegedviolation, Respondent had in its employ no person who was injured.?D. All of the equipmentand machinery situated at Respondent?s brewing facility at 2000 PocahontasTrail, Williamsburg, Virginia 23185 was, at the time of the alleged violation,owned [and or controlled] by Respondent. (See amendment to Stipulation TR. 3)?E. Respondent?s brewery facility atWilliamsburg, Virginia was, at the time of the alleged violation, and is nowthe only such production facility in the area.?F. Respondent?s total sales for the yearpreceding the year in which the alleged violation took place (1973), for allits brewery locations was $1,109,707,000.00, based upon total shipments of29,891,193 BE (Barrel Equivalent), of which shipments 2,259,795 BE (BarrelEquivalent) was allocable to Respondent?s Williamsburg, Virginia breweryfacility.?G. Respondent has no history of anyprevious violations or alleged violations of laws or regulations affecting thehealth or safety of employees at its Williamsburg, Virginia brewery facility.?H. The average daily number of employeesat Respondent?s brewery facility at Williamsburg, Virginia is 331.?I. The parties hereto further stipulatethat specially designed hearing protection devices, commonly known as muffs andplugs, if and when worn by Respondent?s employees atthe cited areas do attenuate the noise levels for such employees to withinpermissible limits.?Based upon these stipulations it isconcluded that Respondent is an employer engaged in a business affectingcommerce, having employees within the meaning of Section 3 (5) of the Act, 29U.S.C. 652(5) and the Review Commission has jurisdiction of this matter underthe provisions of Section 10(c) of the Act, 29 U.S.C. 659(c).\u00a0??????????? Theevidence of record reveals that on September 24, 1975, Mr. Hartmann, aCompliance Officer and fully qualified Industrial Hygienist with Complainant(TR. 56?57), in response to an employee complaint concerning high noise levelsat Respondent?s Williamsburg powerhouse, made an inspectionof this worksite. During this inspection he noted high noise levels inthe packaging area, took some 40 to 50 sound level readings with a GeneralRadio sound level meter and found them to be excessively high? (TR. 69). Hedecided to return the following day to obtain as close to an eight-houremployee exposure to these high sound levels as possible at four operatorstations, to wit, the ?climax uncaser;? bottle line#30; can line #20 and can line #10.??????????? OnSeptember 25, 1975, he did return to Respondent?s worksite and measured theemployee exposure to noise at the four locations abovementioned using a DuPontAudio Dosimeter. This is a portable, battery operated instrument which measuresan employee?s cumulative exposure to noise levels during the test period. Amicrophone is worn by the test subject on his shirt collar. The noise picked upby the microphone is converted into an electric impulse and through an electroplatingprocess in the memory cell of this instrument records the cumulative exposureto noise levels. This data is calculated and integrated with time. At theconclusion of the test period, this meter produces a digital readout which isthe percentage of permissible exposure provided in Table G?16 of the citedStandard. Thus a digital readout of 100% would beequal to an 8-hour exposure to 90 dBA; or a 4-hour exposure to 95 dBA, or a2-hour exposure to 100 dBA, that is, the maximum exposure allowed under TableG?16. A readout of 200% means twice the maximum allowable exposure under thistable. Mr. Hartmann opinioned that this instrument is reliable, is used by someindustries and he uses it frequently in his official duties. It has gained wideacceptance as an excellent instrument. It does have a limited instrument errorso that he does not recommend any action unless the readout obtained is 140% orgreater (TR. 67?77).??????????? It isconcluded that the noise exposures obtained by Mr. Hartmann infra, usingthe identified dosimeters, which were properly calibrated and utilized, areaccurate and reliable.??????????? Theresults of the dosimeter tests were as follows:? Employee tested Work station Duration of test Dosimeter finding Mr. Beckerley Climax unpacker 7 hrs. 45 min. 174% (TR. 79-81) \u00a0 Mr. Parks Line #30 bottle filler 7 hrs. 44 min. \u00a0 308% (TR. 80-81) \u00a0 Mr. Radcliffe Line #20 can line 7 hrs. 42 min. 280% (TR. 80) \u00a0 Mr. Jones Line #10 can line 7hrs. 47 min. 214% (TR. 70) \u00a0 \u00a0Sound level meter readings also taken at or near theabove work stations were as follows:Climax unpacker?90 to 93 dBA (TR. 62);?Bottle line #30?99 to 100 dBA (TR. 66);?Can line #20?98 to 100 dBA (TR. 80);?Can line #10?99 to 101 dBA (TR. 66).?No area in the vicinity of the machines in thepackaging area had noise levels below 90 dBA (TR. 67).??????????? Thisevidence, which is neither contested nor rebutted by Respondent, conclusivelyestablishes that these employees of Respondent, at the indicated locations atthis worksite, i.e., those set forth in the Citation herein, were exposed tonoise levels exceeding permissible limits under the cited Standard.??????????? Thisthen brings us to the questions posed by this case.??????????? Respondent,acknowledging the existence of noise levels at these locations in excess ofthose permitted by the cited Standard, takes the position that it is not inviolation of this Standard because there are no known ?feasible? engineering oradministrative controls available to it to reduce these noise levels.Consequently, under the terms of the cited Standard, it is justified inresorting to personal protective equipment, (i.e., ear plugs, ear muffs) fortheir employees at these locations.??????????? TheRespondent does not take issue with the clear and unequivocal provisions of theStandard, which in subparagraph (b)(1) provides:When employees are subjected to soundexceeding those listed in Table G?16, feasible administrative or engineeringcontrols shall be utilized. If such controls fail to reduce sound levels withinthe levels of Table G?16, personal protective equipment shall be provided andused to reduce sound levels within the levels of the table. 29 C.F.R.1910.95(b)(1).\u00a0??????????? Thus,under the terms of this Standard, where noise levels exceed those in TableG?16, the priority of corrective measures are first, ?feasible administrativeor engineering controls? and only if these measures fail, then secondly, theuse of ?personal protective equipment.?[6]??????????? Thus,we arrive at the basic issue presented by this case, that stated in theCitation as issued to wit, did Respondent ?. . . failto implement feasible engineering or administrative controls to reduce thesound levels in the packaging department at the line #10, #20, and #30 fillersand at the climax unpacker,? to permissible limits under the cited Standard.??????????? TheRespondent argues ?no? to this question because there are no known ?feasible?engineering or administrative controls available to it. The Complainant arguesthe contrary.??????????? Thefirst question to be resolved then is what is meant by ?feasible? engineeringor administrative controls as used in this Standard.??????????? Theword ?feasible? is not defined in either the Act or Standards. Thus, the commonand ordinary meaning of this term is applicable.??????????? Webster?sNew World Dictionary, 2nd College Ed., 1972, defines this word to mean: ?1.capable of being done or carried out; practicable; possible, 2. within reason;likely; probable, 3. capable of being used or dealt with successfully;suitable.???????????? In myview, ?feasible? engineering or administrative controls, as used in the citedStandard, means those controls which are reasonably capable of successfulaccomplishment under the circumstances present in each case.[7]??????????? Underthe cited Standard, it has not as yet beendefinitively determined which party has the burden of establishing that?feasible? engineering or administrative controls are available to a Respondentto reduce noise levels to those proscribed in the Standard.[8]??????????? In myview, under the rational announced in National Realty and Construction Co.,Inc. v. OSHRC and Sec. of Labor, 489 F2d 1257 (CADC, 1973) at 1267 andunder the terms of the Standard at issue, the Complainant must shoulder theburden of establishing the availability of feasible engineering oradministrative controls to sustain a violation such as is charged herein.??????????? Consequently,during the first day of trial held on February 21st, Complainant?s request tokeep his case in chief open to allow an expert witness to testify concerningthe availability of feasible engineering controls was granted (TR. 116?127).??????????? Thereafteron March 20, 1975, with the full cooperation of Respondent, Complainantemployed an outside noise control engineer, Mr. Botsford, to conduct a noisesurvey at the Williamsburg brewery, to determine whether it was feasible toreduce noise levels at those operations named in the Citation. When the trialwas reconvened on April 8, 1975, Mr. Botsford appeared and testified as Complainant?sexpert witness (TR. 407?469).??????????? Mr.Botsford holds a B.S. degree in physics and an M.A. degree with a thesis topicof acoustics from the University of Texas.??????????? From1952 to the middle of 1973 he was in charge of noisecontrol for the Bethlehem Steel Corporation when he resigned to establish hisown consulting business in the field of acoustics. At Bethlehem he had theresponsibility for solving noise problems at that company?s offices, mines,shipyards and general operating areas. He is a fellow of the Acoustical Societyof America, an honor grade of membership conferred in recognition of thecontributions he has made in the field of the prevention of occupationalhearing loss. He is a member of the Committee on Noise of that organization andfor two years was its Chairman. He was the editor of a leading publication inthe noise field, Sound and Vibration until 1973. He is a Director of theInstitute on Noise Control, a nonprofit Pennsylvania corporation engaged inpresenting training courses on noise.??????????? Hehas been active in the field of establishing standards relative to occupationalnoise exposure throughout his professional career, being one of four employerrepresentatives of the Standards Advisory Committee on Noise to theOccupational Safety and Health Administration. He has been a consultant to theNational Institute for Occupational Safety and Health participating in thepreparation of criteria documents on noise. He is a consultant to the Office ofNoise Abatement of the U. S. Department of Transportation on vehicle noise andhas taught seven courses on highway noise control sponsored by the FederalHighway Administration. He has been a consultant to the EnvironmentalProtection Agency at hearings held in Denver and Boston preparatory to draftingthe Noise Control Act of 1972. He has been a member of a ?peer group? of theDepartment of Labor to review proposed revisions in the noise Standard atissue.??????????? Inthe private industry sector, he has been a consultant to such large companiesas Armco Steel Corporation, Litton Industries, CatapillarTractor Company, Central Vermont Sand Blast Trade Association, Fireman?s FundInsurance Company, International Telephone and Telegraph Company, LibertyMutual Insurance Company, Union Carbide Corporation, Mack Truck Company,Metropolitan Edison Company, Mobil Oil Corporation, Owen Corning FiberglassCorporation, Pennsylvania Motor Truck Association, Philadelphia ElectricCompany, Phoenix Forging Company, Polymer Corporation, Republic SteelCorporation and United States Metals and Refining Company (TR. 407?410).??????????? Mr.Botsford obviously is a highly qualified expert in the field of acousticalengineering or noise control, both by education and long and variedprofessional experience.??????????? Thiswitness stated that the function of an acoustical engineer, broadly defined, ?.. . is to assess noise, appraise its effects and work towards the correction ofthe conditions . . .? (TR. 410)??????????? Duringhis noise survey of Respondent?s Williamsburg plant, Mr. Botsford studied thelocations set forth in the Citation as sources of excess noise levels, i.e.,the ?climax unpacker,? the beer can-filler and seamer (closing) machine, andthe bottling line, (Exh. C?1?C?4), measured noiselevels and identified the source of certain noises using a sound level meterand oscilloscope (which transforms sound waves into visible waves for betteridentification), made magnetic tape recordings and took some photographs.??????????? Hisfindings, confirmed the existence of noise levels in excess of these set forthin the cited Standard as found by Industrial Hygienist Hartmann, confirmed thereliability of the DuPont Dosimeter as a reliable instrument to measurecumulative employee exposure to various noise levels for various times (TR.417?424) and in a letter to Complainant?s counsel dated March 31, 1975, madenumerous, specific suggestions which in his opinion are feasible and wouldresult in reducing employee exposure to within acceptable limits under theStandard (Exh. C?12).??????????? Mr.Botsford testified to measuring 93 dBA at the ?climax uncaser.?This is a device which precisely spaces cartons of empty bottles on a conveyorline so that the empty bottles may be mechanically removed therefrom. The uncaser has an arm or gate which functions to space thecartons on the conveyor line. This gate is lowered abruptly to accomplish itsfunction. Mr. Botsford found that its downward travel is terminated by hittingsome type of stop. He measured the noise level at this location when this gatewas not operating and found it to be from 88 to 90 dBA. He therefore concluded,that a reduction of the noise level at this location could be feasiblyaccomplished by cushioning the stop for this gate with a rubber bumper or ?dashpot? which would more gently terminate the gates downward movement andeliminate the impulse component of this noise level (TR. 411?415, Exh. C?12).??????????? Respondent?sengineering witness, Mr. Spargo, testified that between Mr. Hartmann?sinspection on September 24, 25, 1974 and Mr. Botsford?s noise survey on March20, 1975, a three to four dBA reduction in the noise level at the ?climax uncaser? was achieved by Respondent by muffling acompressed air blast at this location. Further, that its study of the gatemechanism noise, at a time not specified, but assumedly after Mr. Botsford?svisit, resulted in a finding that the impulse noise present was not due to thebumping of the gate upon a stop, but rather by the abrupt termination of thetravel of a one-inch long ram of the air cylinder which drives the gate.Because of the short, one-inch travel of this ram there was insufficient spaceto pneumatically cushion both ends of the stroke of this ram. Consequently,Respondent experimentally planned on replacing this short ram with a two-inchram to allow for a one-half inch pneumatic cushion on both ends of the ramtravel. He was optimistic about bringing about a reduction in the impulse noiselevel at this location (TR. 595?596).??????????? It isprecisely this type of engineering effort which, in my view, is required ofemployers under the Standard at issue. ?The employer is required to think anduse his expertise gained in the operation of his business in order to complywith the standard.? Sec. of Labor v. Union Camp Corp., 8 OSAHRC 31 at39, 40, May 1, 1974. Further, this evidence establishes conclusively that sometype of engineering control, either those suggested by Mr. Botsford or thosewhich admittedly were not intended to be all inclusive, implemented or to beimplemented by Respondent are ?feasible? and available to this Respondent atthis location. The record establishes however that these feasible engineeringcontrols were neither developed nor implemented prior to the initialinspection. Thus, as to this location, the ?climax uncaser,?the evidence establishes the violation as charged.??????????? Mr.Botsford further testified that he spent most of his time during his noisesurvey at the Line No. 20 can-filler and seamer (i.e., closing) operation (Exh. C?2, C?4; R?5(1)). He identified three sources ofnoise at this location. The can lid-handling mechanism at the bottom of twotubes through which the can lids are fed into the machine (Exh.R?5(1) which produced a high pitched, scraping or hissing sound due to themechanical handling of the lids. The second source identified was a compressedair jet located on the conveyor line where empty cans enter the filler, used toproperly align the cans as they proceed into the filler. The third source was ahydraulic pump located behind the filler\/seamer machine. He measured 100 dBAnext to the pump, and further identified this sound, with the use of hisoscilloscope as consisting of 1200 pulses per second, i.e., its hertz tone.This pump was mounted on a metal oil reservoir which acted like a drum. Hemeasured the same 1200 hertz at the operator?s station for the canfiller\/seamer thus concluding that part of the excessive noise at this stationcame from this hydraulic pump (TR. 425?429).4??????????? Mr.Botsford made the following suggestions to correct the identified conditions.??????????? As tothe first source, supra, he recommended the fabrication of a fiberglass shroudor box with appropriate sound absorbing material on its exterior surface, toreplace the stainless steel box presently in use. Anidentical second shroud or box should also be fabricated to be available as areplacement for the first when the first is removed, during periodicmaintenance or whenever necessary, to be sterilized. This would be necessarybecause beer is thrown around within this can lid-handling mechanism (TR.431?435). Suitable sound absorbent material, highly resistant to abrasion andliquids and capable of withstanding sterilization temperatures is commerciallyavailable (TR. 444?461). He further recommended as a possible solution,drilling holes in the existing stainless steel shroudor box to emit the sound and then enclosing this stainless steel shroud withanother shroud or box lined with appropriate sound absorbing material (TR.458?461).??????????? As tothe second source supra, the compressed air jet used to space the emptycans, he recommended that a commercially available nozzle be installed whichwould be quieter in operation than the nozzles presently in use and wouldresult in a saving of the amount of compressed air needed for this function. Heexplained that noise is created by the stream of compressed air mixing with therelatively still air surrounding it. The resultant mixing region is the sourceof the noise. The recommended nozzles would significantly reduce this noiselevel (TR. 431?432, Exh. C?12).??????????? As tothe third source, the hydraulic pump, Mr. Botsford, who had previously workedwith noise problems connected with hydraulic systems, made three suggestions.??????????? Thefirst, and most economical and simple, was to move the hydraulic pump (shown asa large white motor at the left of Exh. R?5(1)) some15 to 20 feet away from the operator?s station at the can filler\/seamer.Secondly, an appropriately configured barrier could be erected between the pumpand the operator?s station. Thirdly the pump could be enclosed with a shroud orbox lined with appropriate sound absorbing material (TR. 430?431; Exh. C?12).??????????? Atthe other location stated in the Citation, bottle line No. 30, Mr. Botsfordmade an investigation of the excessive noise levels and identified two sources.??????????? Theprincipal source was bottle to bottle contact at thatlocation on the bottle line where a large mass of bottles is merged down to asingle line to be fed by conveyor belt into the bottle filler and cappermachine. At the filler machine, he identified the crown or cap feeder mechanismto also be a source of excessive noise, primarily a hissing noise fromcompressed air used to move the caps (Exh. R?5(6)).??????????? Herecommended enclosing the crown feeder in a sound absorbing shroud or cover, asimple and workable solution as this mechanism is relatively small, 9 inches by2 feet (TR. 468) and apparently not subject to jamming problems. Whileobserving this operation, Mr. Botsford placed his clipboard between where hewas standing on the employee walkway and this crown feeder and noted a [9] dBA reduction of the noiselevel at his meter. He therefore concluded that a properly designed andinstalled shroud or cover would accomplishment significant reduction of thenoise level emanating from this crown feeder (TR. 435?437, 467?470; Exh. C?12).??????????? Atthe bottle merging portion of this line he measured a noise level of 100 dBA.During his study, for some unexplained reason, the flow of the bottles stoppedalthough the conveyor belts under the bottles continued to run. The effect wasto compress the bottles together, and although the bottles were agitated by theunevenness of the conveyor belts running beneath the bottles, the noise leveldropped to 88 dBA, a 12 dBA reduction. He thereforeconcluded that an alteration of the conveyor process would result in areduction of the noise level at this location, suggesting increasing the speedof the conveyor belt and\/or retarding the forward motion of the bottles toachieve a tighter compaction of the bottles, thus reducing the bottle to bottlecontact noise. He suggested either some type of spring loadedside rail brakes or perhaps a rolling side belt to accomplish the slowdown ofbottle movement and a better control of the rate of movement of the bottles(TR. 437?441).??????????? Althoughhe would prefer the engineering solutions which he recommended to bringRespondent?s cited operations into compliance with the Standard as he believesthem to be feasible, that is reasonably capable of accomplishment, he didacknowledge that a reduction of employee exposure to excessive noise levelscould also be obtained by utilizing employee enclosures, which, through hisexperience, are capable of reducing exposure by as much as 30 dBA (TR. 441?442,Exh. C?12).??????????? Respondent?sdefense to this action, essentially, is that it has tried to reduce theadmittedly excessive noise levels at its breweries through engineeringcontrols, carried on at one of its facilities at Columbus, Ohio, and has notbeen successful. Further, administrative controls, which essentially is therotation of employees out of excessive noise level areas so that theircumulative exposure per work shift does not exceed the levels of Table G?16 ofthe cited Standard, are totally infeasible. Thus, it is justified in resortingto the use of personal protective ear equipment andis not in violation as charged.??????????? Thisdefense was put in through three witnesses, Mr. Spargo, Respondent?s principalengineer in the beer packaging and shipping area and Mr. Hoffman of theContinental Can Corporation, as to the infeasibility of engineering controlsand Mr. Tiemann, a 33-year employee of Respondent,presently its Manager of Operations Services as to the infeasibility ofadministrative controls.??????????? Mr.Spargo of St. Louis, Missouri, an employee of Respondent for some 27 years, ispresently its Principal Engineer for Beer Packaging and Shipping, responsibleon a corporate-wide basis for engineering projects and problems in that area,and since 1973 also covering noise problems. He obtained a degree in MechanicalEngineering from Tulane University in 1947. In the late 1960?s he took either aone- or two-week noise or acoustical course at the University of Michigan. Heis a registered engineer in the State of Missouri and is a member of theAmerican Society of Mechanical Engineers. He is chairman of the Food, Drug andBeverage Equipment Subcommittee of this Society. He does not consider himselfan acoustical engineer nor has he ever been certified as a noise controlengineer by any authority (TR. 128?132, 294, 295, 301).??????????? Therecord reveals that in February 1973 this Respondent was issued a Citation foralleged violations of the noise Standard (29 CFR 1910.95) at its Columbus, Ohiobrewery. Evidently seven specified locations at that brewery were identified assources of noise levels exceeding those permitted in the Standard, including acan filler\/seamer and a bottle filler operation, among others. This Citationwas not contested and the period for abatement and been extended. Further, somelitigation may be pending in relation to that case. (TR. 257?272).??????????? However,following the issuance of the Citation covering the Columbus brewery,Respondent embarked upon a sound survey and noise abatement project at theColumbus brewery, under the supervision of Mr. Spargo. The results of this projectwere presented as Respondent?s Exhibits R?4, denominated a ?punch sheet,? and arevision thereof as of March 20, 1975, Exhibit C?11. These exhibits wereadmitted into evidence to show what corporate engineering efforts Respondenthas exerted to bring its operations into compliance with the noise Standard onthe theory that a multi-plant corporation may conduct experimental engineeringwork at one plant with the intention of implementing any successful results atits other plants (TR. 378, 582).??????????? Mr.Spargo testified that he participated in the design of both the Columbus andWilliamsburg brewery facilities and that the general arrangement of thebuildings are similar although the Columbus plant hasfive bottle and can lines whereas the Williamsburg brewery has three suchlines, two can lines and one bottle line (TR. 134?137). Further, he compiledthe list of suggested corrections reflected in Exhibit R?4 and this study wascarried out at Columbus under his supervision by the personnel at Columbusindicated in the second column of this exhibit. The information appearing inthis exhibit, as well as its revision Exhibit C?11, was obtained by Mr. Spargoby an unspecified number of personal visits by him to the Columbus plant and bytelephone reports to him from persons assigned to implement the suggestions.All reports to Mr. Spargo were verbal, no written reports were made (TR.149?154). Thus the weight to be accorded theseExhibits R?4 and C?11 is seriously diminished because, no underlying data waspresented which would facilitate the verification of noise level readingsappearing thereon and the conclusions stated in the ?Remarks? column.Furthermore, assuming the accuracy and reliability of the sound level dataappearing in the upper left-hand corner of these two exhibits, there appears tobe extensive inconsistencies between that data and the results reported underthe ?Remarks? column of these exhibits.[10] Thus these exhibits arenot legally adequate to support Mr. Spargo?s conclusion that;?There is not now currently known thetechnology to enable us to reduce the noise of the operation in the packagingoperation below 90 decibels.? (TR. 163).[11]???????????? Furthermore,the evidence reveals that no noise source survey has been done at the Columbusbrewery since 1973 by qualified acoustical engineers, nor at any time at theWilliamsburg brewery, the worksite here involved (TR. 301?309, 314, 383).Further the engineers conducting Respondent?s noise surveys and correctiveefforts are in-house mechanical engineers, none of which, as far as the recorddiscloses, having any particular qualifications asacoustical engineers (TR. 301?316). It is here that Respondent?s defense tothis action must fail. Although properly motivated to correct its noiseproblems; it simply has utilized the talents of the wrong engineeringdiscipline, that is, its in-house mechanical engineers, rather than fullyqualified acoustical engineers.[12]??????????? Thefollowing candid testimony of Mr. Spargo, in my view, confirms this conclusion:And we are in the process right now ofattempting to hire two acoustical engineers with appropriate expertise, so thatin effect, we can concentrate further on exactly what you are talking about. Acursory review, which is what I have done, [of] our efforts, have not beensatisfying to us. For this reason, we are going into a more in-depthengineering effort to reduce noise (TR. 226).???????????? FurtherRespondent has not conducted any study nor has itretained any outside consultant to determine what noise reduction could beachieved by enclosing the entire bottle conveyor line up to the filler machinewith some appropriate type of shield or enclosure. It had tried a partialplastic shield near the filler machine but Mr. Spargoconcluded that this partial shield was impractical as it caused problems ofsanitation and operator accessibility to that portion of the bottle line (TR.381?382).??????????? AfterMr. Spargo assumed corporate-wide responsibility for noise control in thelatter part of 1973, he did not recommend that an outside acoustical engineerbe retained to assist Respondent in solving its noise problems because ?. . .it is obvious to a layman where the noise sources are. What we need are machinedesigners to find in effect ways and means of accomplishing the operation atlower noise levels.? (TR. 382, 383).??????????? Essentially,Mr. Spargo has rejected suggestions concerning operator enclosures made by anacoustical engineer of Continental Can Company in late 1974 (Exh. C?6, C?7); and the suggestions of Complainant?sacoustical engineer, Mr. Botsford, on three grounds, restriction of employeemovement, sanitation problems and if shrouds or covers are used on machines andconveyor lines, jams will not be able to be cleared quickly enough.??????????? Thesegrounds are difficult, if not impossible to accurately evaluate because of theabsence in this record of experimental or empirical data to support them. Mr.Snell?s recommendations as to operator enclosures has not been tried byRespondent (TR. 191), basically because of Respondent?s hope that the noisecreated by the filler and closing machines could be contained by an enclosureto be developed by the manufacturer, Continental Can Company (TR. 193).??????????? Clearly,the manufacture of beer does create some sanitation problems, as far as thisrecord discloses, primarily mold growth caused in part at least, from the yeastused in this process. However, no bacteriological data was presented as to whatmolds are produced, what rates of development do occur, nor what types ofsanitation procedure are required to inhibit such mold growth, i.e., time andtemperature requirements for sterilization.??????????? Similarly,because of the lack of Respondent?s experimentation with machine enclosures,the magnitude of the jamming problem can not beaccurately assessed.??????????? Respondentalso produced Mr. Hoffman as a witness. He is the Director of Sales of CustomerEquipment for the Cortinental Can Company, whosupplies Respondent with its can filler\/seamer machines. His forty-year careerwith this company has been spent in the closing machine business, i.e.,involving the can seamer or closing machines. Mr. Hoffman stated that he was agraduate of Baltimore Polytechnic, Maryland Institute of Mechanical Arts andhad attended McCoy College at John Hopkins University where his studies wereinterrupted by the war. He has taken a correspondence course in mechanicalengineering. He is a graduate of the United States Army Engineering School andthe American Association of Management School of Management. He has lectured onthe maintenance of equipment in canning operations to the Petroleum PackagingInstitute and on the training of maintenance personnel as a panel member forthe Beer and Beverage Packaging Association in Atlanta in 1973. He is familiarwith the design and function of can-closing machines sold by his company andhas performed customer service and liaison functions between his company andits customers. He does not hold a degree in engineering nor any academicdegrees. He has no formal training or practical experience in the science ofacoustics of noise control (TR. 483?488).??????????? Mr.Hoffman?s experience and training obviously involve the efficient operation andmaintenance of closing machines. He has not been involved, other than as acustomer liaison man, with designing down the noise level of these machines.??????????? Mr.Hoffman testified that his company, aware of the high noise level created byits can-filling and seaming machine, thought it to be its responsibility toresearch into means to reduce this noise level. Consequentlyin late 1972 or early 1973, this company expended about $43,000 at itstechnical center in efforts to reduce the noise level of this type of machineat the operator station. The engineering department of Continental Can designedan enclosure for this machine, depicted in Exhibits R?10(1) through 16).??????????? Themachine used in this test processed 1200 cans per minute?compared to the 1500cans per minute machine at Respondent?s worksite. Noise level readings taken byContinental?s acoustical engineer before the installation of the enclosure atthe operator station were from 98 to 100 dBA. With the enclosure in place, thenoise level at this position was reduced to 87 dBA. As far as the evidencereveals, no further work has been done in this area by this company.??????????? However,in Mr. Hoffman?s view, this enclosure is not suitable for Respondent?scan-filling and closing machines because of problems of sanitation with theenclosure and inaccessibility to the machine to view and clear jams (See Exh. R?2).??????????? Itmust be noted that Mr. Hoffman was not involved in either the engineering orconstruction phase of this enclosure project, although he did view variousstages of its assembly. In fact, he had no direct involvement in this project.[13] Further, whateverengineering reports were made concerning this project were not made availableduring the trial. This project was not undertaken at the request of theRespondent herein.??????????? Mr.Hoffman, possessing long practical experience with the can-closing machines hiscompany builds was not qualified as having any acoustical engineering educationor experience nor any training or experience in the field of bacteriology?afield necessary to make valid determinations concerning sanitation, i. e., mold growth, a problem presented in the manufactureof beer as alluded to earlier.??????????? Mr.Hoffman?s conclusions as to the lack of accessibility to the closing machinewithin the enclosure is not supported by the photographic exhibits depictingthis enclosure. Exhibits R?10(1), (2), (3) and (4) show numerous doors in thisenclosure which do provide accessibility. If transparent inspection ports werebuilt into this enclosure, Mr. Hoffman?s objection that an operator cannotvisually monitor the process would appear to be overcome. Some type ofelectronic or electrical monitoring for jams within this enclosure evidentlyhas not been explored. Further, if the sharp, angular corners of the enclosurewere modified to rounded corners, part of his sanitation objection could beovercome. Mr. Hoffman indicated that although, in his opinion, the exactenclosure experimented with by his company did have significant operationalproblems, he believed that further engineering efforts might overcome some ofthe difficulties he perceived. However, since the termination of this project,to his knowledge, his company has not done any further work on an enclosure forits can-closing machines (TR. 483?565).??????????? Thisthen constitutes in necessarily abbreviated form, the relevant evidence ofrecord concerning the availability of ?feasible? engineering controls toRespondent to bring its cited operations into compliance with the noiseStandard. There is no question that Respondent is faced with a difficult task.The product it manufactures does present significant sanitation problemsbecause of the yeast used in its production. The solutions to these problemsmay be difficult and necessitate the expenditure of significant amounts ofmoney.[14]??????????? However,with the passage of the Act here involved, Respondent is obligated, through theuse of scientific disciplines available to it, to wit, qualified acousticalengineers, bacteriologists and perhaps other disciplines, to correct the noiseproblems in its breweries so as to effect the declared Congressional purpose ofthis law??. . . to assure so far as possible every working man and woman in thenation safe and healthful working conditions and to preserve our humanresources?? (Sec. 2(b), 29 U.S.C. 651(b)).??????????? As toadministrative controls, Respondent clearly established that such controls arenot ?feasible? at the worksite here involved through the testimony of itsManager of Operations Services, Mr. Tiemann (TR.604?640).??????????? Eachof Respondent?s can and bottle lines are manned by employees, who, per shift,constitute a team effort, with varying requirements and skills needed by eachmember. These ?teams? establish a work rhythm during their shift. Further,there are 34 employees working in the packaging and shipping area having 10different starting times necessitated by the nature of the operations carriedon in this area. Interchangeability of jobs within a shift was triedexperimentally upon the union?s request but had to be abandoned because ofvarying qualifications needed for various tasks, and the unwillingness orinability of certain shift members to assume the needed responsibilities atcritical operations in the lines.??????????? Theevidence further reveals that since 1972 The Respondent has had a mandatorypersonal protective program operating at its Williamsburg brewery at thelocations at issue in this case. Various types of ear protectors, plugs, muffs,etc. have been issued to operators at these locations and their use has beenenforced. (See Testimony of Respondent?s witness Mr. Wizeman?TR.641?671 and Exhibits R?14, 15, 16.) This aspect of the case as well as theinfeasibility of administrative controls are not seriously challenged byComplainant.??????????? Theevidence of this record in its entirety has been thoroughly and carefullystudied and evaluated. On the basic issue presented by this case, to wit,whether ?feasible? engineering controls are available to this Respondent tobring the excessive noise levels found at the four locations cited intocompliance with the noise Standard; Complainant?s evidence, the testimony ofits expert witnesses Industrial Hygienist Hartmann and Acoustical EngineerBotsford has been critically weighed against Respondent?s evidence, thetestimony of its Mechanical Engineer Mr. Spargo and Continental Can?s Mr.Hoffman.??????????? In myview more weight must be accorded Complainant?sevidence which leads to the conclusion that Complainant has established thenonserious violation as alleged in the amended Citation.??????????? Pursuantto the provisions of Section 17(j) of the Act, 29 U.S.C. 666(i), I have independently evaluated the criteria for theassessment of penalties set forth therein. Respondent is one of the largestbreweries in in the United States, with ?a number of brewing facilities invarious states,? with total sales for 1973 in excess of one billion dollars. Ithas about 331 employees at its Williamsburg facility.??????????? Thegravity of the violation is small. No injuries are associated with this case.Respondent has evidenced good faith in utilizing personal protective equipment,was highly cooperative during the initial inspection in September 1974 as itwas during Mr. Botsford study at its plant in March 1975. It has exerted a goodfaith effort to discover feasible engineering controls at its Columbus, Ohioplant, and has implemented favorable results at Williamsburg. It does have ahistory of prior violations of the cited noise Standard at its Columbusbrewery, as detailed supra. That matter is evidently still the subject oflitigation relative to abatement.??????????? Basedupon this evidence it is concluded that the proposed penalty of $35 isappropriate and reasonable.??????????? Basedupon the foregoing findings and conclusions and pursuant to the provisions ofSections 10(c) and 12(j) of the Act, (29 U.S.C. 659(c) and 661(i), it is hereby,??????????? ORDERED:??????????? 1.That the Citation for nonserious violation of 29 U.S.C. 654(a)(2) for failureto comply with the requirements of the Standard set forth at 29 C.F.R. 1910.95,and the penalty proposed thereon, are AFFIRMED.??????????? 2. Atotal civil penalty in the amount of $35 is assessed against the Respondentherein.WILLIAM E. BRENNANJudge, OSAHRCDated: October 23, 1975Hyattsville, Maryland[1] The standard inpertinent part provides:When employees are subjected to sound exceedingthose listed in Table G 16, feasible administrative or engineering controlsshall be utilized. If such controls fail to reduce sound levels within thelevels of Table G 16, personal protective equipment shall be provided and usedto reduce sound levels within the levels of the table. Table G-16 Permissible Noise Exposures Duration per day, hours Sound level dba response 8 90 6 92 4 95 3 97 2 100 1 ? 102 1 105 ? 110 ? or less 115 \u00a0[2] The motion for acontinuance was first made a week prior to the hearing. The Judge denied it atthat time in order to enable the hearing to start on schedule. At the hearing,however, the Secretary renewed his request for additional time to procureexpert testimony. After the Secretary had presented his then availablewitnesses, the Judge granted the Secretary?s request. Respondent then proceededto present its witnesses. The Judge made it clear, however, that when thehearing reconvened respondent would also have an opportunity to presentadditional evidence.[3] For example, oneof the principal sources of noise at the can seamer was a hydraulic pumplocated behind the seamer. The Secretary?s expert testified that a significantnoise reduction could be achieved at that location by moving the pump. Therewas no evidence that moving the pump would have been difficult or infeasible.[4] He also foundthat respondent ?clearly established? that administrative controls were notfeasible at respondent?s worksite. Thus, complainant?s case is grounded solelyon respondent?s alleged failure to provide feasible engineering controls.\u00a0[5] It should benoted, however, that the regulation at issue here applies only ?[w]henemployees are subjected to sound[s] exceeding those listed in Table G 16.? 29C.F.R. ? 1910.95(b)(1). Of course, as indicated by the stipulation, the personalprotective equipment furnished by respondent provided adequate protection topreclude its employees from being ?subjected to? such noise levels.[6] See:Secretary of Labor v. Turner Company, OSAHRC Docket No. 3635 (1975) (onreview).[7] See: Sec. 3 (8)of Act, 29 U.S.C. 652(8) re definition of term Occupational Safety and HealthStandard.\u00a0[8] See: Secretaryof Labor v. Reynolds Metals Co., OSAHRC Docket No. 1551, ALJ Dec. 9\/18\/73,on review, holding Complainant has the burden; Secretary of Labor v. PageIndustries of Oklahoma, Inc., 4 OSAHRC 1059 (10\/4\/73) arguably holdingRespondent has the burden.[9] An additionalnoise source was identified by Mr. Hotsford as set forth in Exh. C?12, a high-pitchedwhistle caused by venting carbon dioxide over eight equally spaced holes intothe room. This arrangement formed an array of eight Helmholtz resonators(similar to bottles that will produce a whistling sound when air is blown throughthe necks). He suggested the simple solution of covering the eight holes withwire mesh which would correct this condition (Exh. C?12).[10] For example onExh. C?11, the March 21, 1975 revision of Exh. R?4, at the upper left-handcorner, a noise level reduction of from 6 dBA to 4 dBA is recorded. Yet thetotal dBA reduction reported in the ?Remarks? column?for the bottle linereported on the first 3 pages of this exhibit total 2 1\/2 dBA. Additionally,many of the suggested changes had not been instituted for various reasons. Nosuch comparison is possible on Exh. R?4 with the data appearing thereon. Exh.C?9, purportedly an August 1974 version of Exh. R?4 is subject to the samedeficiencies.[11] My conclusion onthe evidence of record should in no way be interpreted as a criticism of Mr.Spargo?s or Respondent?s good faith attempts to deal with their noise problem.There is nothing in this record which causes me to question Mr. Spargo?ssincerity or integrity in discharging his responsibilities in connection withRespondent?s Columbus noise study.\u00a0[12] A completeevaluation of the extent of Respondent?s engineering efforts is impossible onthis record. Mr. Spargo, having corporate-wide responsibility for Respondent?snoise problems, did not know how much money had been spent by his company onthese problems nor did he have any complete or precise figures as to how manyengineering hours have been expended on these problems. Further he was not incharge of the noise problems at the worksite here involved.[13] It is noted thatRespondent did not produce, as a witness any qualified engineer, including areported acoustical engineer, Mr. Snell, who was directly involved with thisproject.[14] Economicconsiderations can be relevant in determining the ?feasibility? of engineeringcontrols. See Secretary of Labor v. The B. F. Goodrich Co., 9 OSAHRC 44,50?55, (A.L.J., June 5, 1974) and Industrial Union Department, AFL-CIO et alv. Secretary of Labor, 499 F.2d 467, 477?478 (CADC, 1974) cited therein. Nosuch consideration has been raised by this record.”