LOUISIANA-PACIFIC CORPORATION

OSHRC Docket No. 10639

Occupational Safety and Health Review Commission

October 19, 1977

[*1]

Before CLEARY, Chairman; BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor

George J. Tichy, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

A decision of Judge John J. Morris is before this Commission for review pursuant to section 12(i) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 6651 et seq. [hereinafter "the Act"]. The issues presented are whether the Judge erred in holding that:

(1) the citation issued on October 2, 1974, was issued with reasonable promptness;

(2) respondent has the burden of proving that the citation was not issued with reasonable promptness;

(3) the citation provided respondent with fair notice of the alleged violations;

(4) respondent was not denied due process of law by being cited and tried for failure to comply with the standards at 29 CFR 1910.95(b)(1) [hereinafter "the noise standard"] n1 and 29 CFR 1910.265(c)(18)(i); n2 and

(5) complainant proved by a preponderance of the evidence that respondent failed to comply with these same standards.

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n1 The standard reads:

When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

Table G-16 Permissible Noise Exposures

Duration per day, hours

Sound level dBA

slow response

8

 90

6

 92

4

 95

3

 97

2

100

    1 1/2

102

1

105

  1/2

110

          1/4 or less

115

n2 The standard reads:

Construction, operations, and maintenance of conveyors shall be in accordance with American National Standard B20.1-1957.

The referenced portion of the ANSI standard reads:

605 Backstops and Brakes

(a) On all conveyors where reversing, or running away presents a hazard, "anti-runaway" or "backstop" devises should be provided; or the track of the conveyor designed to prevent any portion of the conveyor and load from falling or sliding down in the event of mechanical or electrical failure. When such design is not practical, suitable guards (designed to withstand and confine the falling load) shall be placed to prevent access to the danger area.

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The parties have filed briefs with us, and we commend the parties for the excellence of the briefs.

Respondent, Louisiana-Pacific Corporation, is a corporation engaged in the sale of lumber products. On September 17, 1974, compliance officer Harry C. Hutton conducted a properly authorized inspection of respondent's place of business located in Portland, Oregon. As part of the inspection, Hutton measured the level of noise to which respondent's chipper n3 operator, Woodrow W. Whytsell, was exposed. Using a calibrated, standard sound-level meter, Hutton took two measurements, slow response, each of seven or eight minutes duration, over a period of twenty minutes. The measurements, taken while following Whytsell as he performed the various aspects of his job, ranged from 114 to 122 decibels. The chipper was functioning normally on September 17, and was in operation throughout the course of Whytsell's work shift n4 except for approximately 50 minutes. n5 No sound control equipment was in use at the time of the inspection, but Whytsell was wearing earplugs.

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n3 A chipper is a machine that grinds lumber and large wood chips into small chips. 29 CFR 1910.265(b)(10).

n4 The machine is not in operation during the operator's lunch break, but this time is not included within his eight hour work day.

n5 The machine was not in operation for coffee breaks or when blades were changed. The 50 minute time period assumes two breaks and two blade changes, both of which are customary. Whytsell testified that the machine was in operation except for such times on September 17 but could not recall if blades were changed once or twice.

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During the inspection, Hutton noted that a passageway three feet wide separated a live roll conveyor and a chain conveyor that was perpendicular to the live rolls. The live rolls moved at a speed approximately two or three times faster than the ordinary conveyor, which moved at a speed approximately equal to a normal walking pace. Lumber exiting the live rolls intermittently crossed the passageway onto a steel table and struck a bangboard approximately 12 feet away from the live rolls. The lumber [*5] crossed the passageway about four feet above the floor. While anyone entering the passageway could be struck by lumber as it crossed, no guard rails were erected or warning signs posted. It was the responsibility of the employee stationed at the chain conveyor to shut off the live rolls when someone approached the passageway. Other than maintenance personnel and the employee stationed at the chain conveyor, respondent's employees had no job-related reason to use the passageway and normally did not use it.

A citation was issued to respondent on October 2, alleging 13 violations of section 5(a)(2) of the Act. n6 Respondent filed a timely notice of contest as to items 2, 3, 4, 7, 8, and 9. n7 Subsequently, a complaint and answer were filed.

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n6 Section 5(a)(2) reads:

Each employer shall comply with occupational safety and health standards promulgated under this Act.

n7 Items 1, 5, 6, 10, 11, 12, and 13 became final orders of the Commission pursuant to section 10(a) of the Act because they were not contested. These items, therefore, are not subject to review.

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Respondent consented to an inspection of its chipper by an acoustics expert designated by complainant to prepare for trial a report of feasible methods of reducing the sound level to which respondent's chipper operator was exposed. On January 15, 1975, complainant's expert, Howard K. Pelton, conducted a discovery inspection of noise at respondent's chipper operation. Using a calibrated, standard sound-level meter, Pelton measured n8 sound levels at five locations near the chipper, including the lower level, n9 to which the operator at times must move in order to clear a feeder conveyor, and as far down the conveyor leading into the chipper as the operator's restraining belt permitted the operator to move. n10 Each reading was taken for a 15 to 20 minute period. The measurements took 90 minutes to complete. The sound levels varied from 100 to 115 decibels, depending upon the flow of lumber and the location of the measurement. Pelton noted that steel baffles, n11 not present on September 17, 1974, were installed at the top of the chipper's mouth.

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n8 At all times, Pelton proceeded by viewing the meter with his eyes and taking average measurements as the needle registering the sound levels moved according to sound fluctuations. This technique is commonly used in the field of sound surveys and is approved by trade publications.

n9 The chipper is located on two levels. On the upper level is a mouth into which wood is fed. A chute leads to the lower level, which is ten feet down, where the grinding actually takes place.

n10 The operator wears a restraining belt while tending the machine.

n11 Baffles are acoustical devices designed to absorb or deflect sound.

[*7]

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A hearing was held on March 19, 1975, before Judge Morris. Judge Morris held that Pelton's testimony with respect to the January 15 survey was not relevant to the alleged violation of September 17, and refused to admit the testimony until the citation had been amended. Thereupon, complainant moved to amend the citation and complaint to include in item 2 an allegation that respondent violated the noise standard on January 15, 1975. The Judge granted this motion to amend.

We hold that the Judge erred in allowing the amendment. Once a good faith notice of contest is filed, respondent is under no obligation to abate the conditions alleged to be violative of the Act until the entry of a final order by the Commission. Section 10(a) of the Act. See Atlas Roofing v. O.S.H.R.C., BNA DLR, D-1 (U.S. March 23, 1977). Therefore, an amendment alleging a subsequent violation based on the existence of the essentially same conditions cannot be allowed pending disposition of the contested citation. n11a

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n11a However, if because steel baffles were in use at the chipper's mouth on January 15, 1975, that were not in use on September 17, 1974, the conditions are not considered essentially the same, I would hold the amendment to be proper as a supplemental pleading under Fed. Rules Civ. Proc. rule 15(d). Respondent argues unpersuasively that the Secretary must repeat the procedural steps under section 8(e) and section 9(a) before a new allegation could be made. This is a rigid and unduly formalistic reading of the remedial legislation involved. Cf. Monroe and Sons, Inc., 4 BNA OSHC 2016; 1976-77 CCH OSHD para. 21,470 (No. 6031, 1977).

[*8]

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We believe, moreover, that Pelton's testimony concerning the sound level at the chipper operator's work station in respondent's plant was properly admitted because it bore strongly on the question of the accuracy of the sound level measurements recorded by the compliance officer on the previous September inspection. n12 Respondent contested the validity of the compliance officer's measurements, and cast doubt on the adequacy of his measurement procedures to produce results of sufficient trustworthiness to support a violation. Evidence of sound levels at the operator's station on a subsequent date, generated by the same source under substantially similar conditions n13 clearly is relevant under the definition set out in the Federal thes of Evidence, n14 and equally clearly is admissible under the more liberal policy of admissibility governing hearings by administrative agencies set out in the Administrative Procedure Act. n15 See Reynolds Metals Company, 3 BNA OSHC 1749, 1975-76 CCH OSHD para. 20,214 (No. 4385, 1975).

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n12 While it is clear that the Judge concluded that Pelton's testimony concerning the sound level as of January 15 was inadmissible to prove that a violation existed as of September 17, the basis for that conclusion is unclear. Initially the Secretary attempted to support introduction of the evidence on the ground that it was to be used to prove a "continuing violation." The Judge refused the admission on that ground because he concluded that the Act does not provide for a violation of that type. We need not pass on that question, however, because the Secretary also sought to support the introduction of the evidence on the same grounds that we find it admissible.

n13 The evidence reveals that the only difference between operations on September 17, 1974 and January 15, 1975, was that some sound reducing devices had been installed at the operator's station. A lower level of sound on January 15, therefore, was to be expected.

n14 Rule 401. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

n15 Section 7(c), 5 U.S.C.A. 556(d), provides that:

[a]ny oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.

See, also, McCormick, Evidence 348 (2d F. W. Cleary, et al. 1972).

[*10]

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At trial, Pelton explained two methods that in his opinion would effectively reduce the sound level at the chipper machine to the permissible 88 to 91 decibel range. First, so that noise produced by the chipper itself would not reach the operator, a wall or barrier could be constructed to house the upper level of the chipper, consisting of the infeed chute and the chipper mouth. The wall would go from the ceiling to the floor of the upper level, and would continue and extend below that level, providing an "acoustical shadow" for the operator; that is, a barrier between the operator and the chipper itself. The wall would be constructed of acoustical absorbing materials, and would be equipped with a doorway for the operator's access enabling him to change blades to maintain the chipper. The doorway would have a vision panel and an automatic closer.

Secondly, the chipper infeed chute could be enclosed with a fourth side made of material similar to corrugated steel, or 3/4-inch plywood, and lined with acoustical absorbing material. This would result in a blockage of the sound transmitted from the chipper [*11] infeed chute and, in effect, create a tunnel extending three feet from the wall toward the operator. Access to the tunnel would be effected by a small doorway, again with a vision panel. One-quarter inch neophrene strips hanging at the entrance and exit of the tunnel would allow lumber to pass through while keeping the noise from the operator.

In addition to the wall and tunnel, baffles could be hung from the ceiling of the upper level and the operator's booth could be lined similarly. Pelton also testified to alternative controls that were available, but considered them to be less satisfactory.

Considering costs of labor, materials, and maintenance, Pelton estimated that enclosing the chipper as outlined would enable respondent to reduce noise levels within eight to twelve weeks at a cost of $3,000 to $5,000. Pelton noted that the techniques he suggested were neither novel nor complex, and clearly available to respondent prior to and on September 17, 1974.

Respondent attempted to refute Pelton's opinion of feasibility in two ways. First, respondent suggested that certain problems not foreseen by Pelton might be created by implementing Pelton's suggestions, such as overheating, [*12] fires, and interference with the production process. Pelton made suggestions to overcome each suggested problem. He even suggested that modifications in his recommendations might be found necessary upon implementation because of subtleties peculiar to respondent's operational needs. He maintained, however, that his suggestions would be effective so long as respondent genuinely attempted implementation.

Secondly, respondent's expert, Thomas Royer, respondent's Industrial Relations and Safety Director, claimed that Pelton's recommendations would not bring the noise levels at the chipper within the permissible range. Much of Royer's testimony concerned respondent's lack of success in reducing the noise levels of planers to within permissible levels. Respondent had spent over $100,000 to erect planer enclosures, but had reduced the noise level from 118 decibels to only 94 decibels. However, planers are not chippers. In 1972, respondent, under Royer's direction, erected a chipper enclosure similar to the one recommended by Pelton at a cost of about $9,000. It reduced noise levels from the 115 to 120 decibel range to 98 decibels. No noise measurements were taken or controls attempted [*13] at the sawmill presently in question.

Judge Morris rendered his decision on December 9, 1975. He vacated items 3, 7, 8, and 9. Because neither party has petitioned for review of these items, and no public interest issue is present, we affirm without review the Judge's decision with respect to these items. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976). The citation was found to have been issued with "reasonable promptness". Items 2 and 4 of the citation were found to provide respondent with fair notice of the nature of the alleged violations. The standards that respondent allegedly had violated were held to be neither vague nor improperly promulgated. Finally, it was held that complainant had proved that respondent had violated the Act by failing to comply with the standards.

While acknowledging that our cases hold to the contrary, respondent contends that Congress intended citations to be issued within 72 hours of an inspection unless prevented by exceptional circumstances, which complainant would have to prove. Applying this rule to the facts of this case, respondent urges that we reverse Judge Morris and vacate the citation because [*14] it was issued 11 business days after the inspection and complainant has offered insufficient justification for the delay. We decline to depart from our precedent. See Coughlan Construction Company, 3 BNA OSHC 1636, 1975-76 CCH OSHD para. 20,106 (No. 5303 et al, 1975).

Respondent urges that we vacate item 4 of the citation because its lack of particularity fails to provide fair notice. Specifically, the citation does not include the sound levels recorded by the compliance officer and fails to state that feasible administrative or engineering controls were not in use. Under our rules, which in Rule 2(b), 29 CFR 2200.2(b), apply the Federal Rules of Civil Procedure, in the absence of a specific provision, and 5 U.S.C. section 554(b), which is also applicable here, notice pleading is employed. The purpose of the particularity requirement is to put the cited employer on notice as to the nature of the alleged violation so that the employer will not be prejudiced in preparing a response or trial defense. Allis-Chalmers Corporation, 3 BNA OSHC 1629, 1975-76 CCH OSHD para. 20,065 (No. 5599, 1975), aff'd, 542 F.2d 27 (5th Cir. 1976). Whether a citation adequately [*15] accomplishes its purpose may depend on factors other than its language, such as the circumstances surrounding the inspection, an employer's familiarity with his business, and the nature of the violation itself. R.E.A. Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974).

A failure to specify in the citation the sound levels measured by the compliance officer is insufficient reason to vacate the citation. Before filing a notice of contest an employer may obtain any additional information it may need to abate by asking for an informal conference with the Area Director. See 29 CFR 1903.19. Once a notice of contest has been filed, an employer may move for a more definite statement, Fed. R. Civ. P. 12(e), or may use discovery proceedings to obtain information not included in the citation. 29 CFR 2200.53. In any event, prejudice must be shown before the extreme action of vacation is taken. n16 Gannet Rochester Newspaper Corp., 4 BNA OSHC 1383, 1976-77 CCH OSHD para. 20,915 (No. 6352, 1976). Respondent has not claimed that it was prejudiced by the omission. Moreover, respondent's previous experience in attempting to reduce the sound levels near chippers indicates that [*16] it was aware of the level of sound to which chipper operators are exposed. Any possibility of doubt was eliminated at trial. Cf. Northwestern Bell Telephone Co. v. Nebraska State Ry. Comm., 297 U.S. 471 (1936).

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n16 B.W. Harrison Lumber Co., 4 BNA OSHC 1091, 1975-76 CCH OSHD para. 20,623 (No. 2200, 1975), appeal docketed, No. 76-2619, 5th Cir., June 14, 1976, is not to the contrary. In that case, the sound levels at one location were found to vary between 90 and 113 dBA, with an average of 100 dBA. In the instant case, the sound level varied only 8 decibels, between 114 and 122 dBA, depending upon the distance away from the noise source, the mouth of the chipper, at which the measurement was taken. Unlike Harrison Lumber Company, here respondent is not confused about the degree to which sound levels must be reduced in order to comply with the standard. Moreover, Harrison Lumber Co. was a "failure to abate" case, see footnotes 8 and 10, while the present action concerns the existence of a violation.

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Nor must the citation be vacated for the failure to allege the absence of feasible controls, as respondent urges. The issue of whether respondent had adopted feasible administrative or engineering controls was raised at the hearing. However, the United States Court of Appeals for the District of Columbia, in National Realty and Construction Co. v. O.S.H.R.C. and Secretary of Labor, 498 F.2d 1257, 1264 held as follows:

So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though formal pleadings did not squarely raise the issue. This follows from the familiar rule that administrative pleadings are very liberally construed and very liberally amended. The rule has particular pertinence here, for citations under the 1970 Act are drafted by non-legal personnel, acting with necessary dispatch, (footnotes omitted).

Respondent's defense to the charge that no feasible controls were used indicates both an awareness of the lack of such controls and knowledge that the issue would be raised. First, respondent claimed at trial that required use of earplugs constitutes feasible administrative [*18] controls. This, of course, is incorrect. Continental Can Co., Inc., 4 BNA OSHC 1541, 1976-77 CCH OSHD para. 21,009 (No. 3973 et al, 1976) appeal docketed, No. 76-3229 9th Cir., Oct 19, 1976. Respondent then attempted to refute complainant's evidence concerning the feasibility of recommended engineering controls in part by presenting a large quantity of evidence relating to prior experience in sound reduction of sawmill machinery which respondent claimed proved infeasibility. In fact, respondent admitted that no engineering controls were implemented because of its prior unsuccessful attempts. It is clear that respondent was not prejudiced in preparing a response to the citation. We conclude, therefore, that the citation was sufficiently particular, when considered with respondent's acquired knowledge and a reading of the referenced standard, to provide respondent with fair notice of the issues raised at trial and defenses it might be required to present.

Respondent also contends that item 4 of the citation n17 is insufficiently particular because (1) the referenced standard allegedly violated fails to provide adequate notice of what is required in order to [*19] comply with the standard because part of the standard was incorporated by reference and not published in the Federal Register, and (2) the description of the location of the alleged hazard is 10 to 12 feet away from the actual hazard. Section 9(a) of the Act does not require that standards, or matter incorporated into standards by reference, be quoted in a citation. Reference to the standard is required. The instant citation made this reference and also precisely to the material incorporated by reference. Also, 5 U.S.C. section 554 expressly permits incorporation by reference in materials that are published in the Federal Register with the approval of the Director of the Federal Register. See, for example, Leader Evaporation Co., 4 BNA OSHC 1292, 1976-77 CCH OSHD 20,781 (No. 5225, 1976). Respondent has not presented evidence indicating any failure by the Secretary to follow the Director's regulations. Therefore the Secretary's action has presumed validity under Leader Evaporation Co.

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n17 Item 4 alleges a violation of 29 CFR 1910.265(c)(18)(i), which incorporates by reference American National Standards Institute (ANSI) standard 1320.1.

[*20]

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Respondent was aware of the hazard referred to in item 4 of the citation. It was the duty of respondent's employee stationed near the live rolls to shut off the live rolls when anyone approached the passageway. During the inspection, the compliance officer and respondent's representative waited for several minutes before entering the passageway because the live rolls were operating and lumber was crossing the passageway. Respondent's defense at trial indicates a complete lack of surprise. Again, we agree with Judge Morris's determination that respondent was afforded fair notice with respect to item 4.

Respondent raises five due process arguments. The first three -- the standard at 29 CFR 1910.95(b)(1) is vague, that it was improperly promulgated, and that the refusal to accept required use of earplugs as an administrative control is irrational -- are answered by Turner Co., 4 BNA OSHC 1554, 1976-77 CCH OSHD para. 21,023 (No. 3635, 1976). Respondent also argues that the standard at 29 CFR 1910.265(c)(18)(i) was not promulgated properly because the referenced ANSI standard was not published [*21] in the Federal Register. As discussed above, such publication is not necessary. See also Corpin Lavoy, d/b/a Empire Boring Company, 4 BNA OSHC 1259, 1976-77 CCH OSHD para. 20,715 (No. 782, 1976). Finally, respondent claims that the assessment of a $25 penalty in the instant case and no penalty in a similar case constitutes an unequal application of the law. It is well settled that assessments are exercises of discretion that may vary depending upon the differing factual considerations. We consider the argument to lack merit.

Finally, respondent contends that complainant failed to sustain its burden of proving either of the alleged violations. With regard to item 2, concerning noise, respondent claims that the sound measurements taken on September 17, 1974, were not adequate samples upon which an eight-hour exposure could be projected and that the recommendations of complainant's expert are not feasible. With respect to item 4, concerning the live rolls, respondent claims that the existence of a hazard has not been proved because it was not established that any of respondent's employees entered the passageway while the live rolls were in operation.

The Secretary of [*22] Labor may prove that an employee was exposed to excessive sound levels by monitoring the exposure for the entire periods specified by the standard or by taking samples of sound levels which with other evidence permit a reasonable inference that an employee was exposed to excessive sound levels. Sun Shipbuilding & Dry Dock Co., 2 BNA OSHC 1181, 1974-75 CCH OSHD para. 18,537 (No. 268, 1974). Moreover, so long as the cumulative time of exposure of an employee to noise is in excess of the level permitted for that time of exposure, exposure at any particular level need not be continuous. Weyerhaeuser Company, 2 BNA OSHC 1152, 1974-75 CCH OSHD para. 18,468 (Nos. 2116, 2250, 1974).

The Secretary of Labor must also prove that the employer failed to use feasible administrative or engineering controls available at the time of inspection, and such controls need not reduce sound levels below 90 decibels. Continental Can Co., Inc., supra. All that is required is that the reduction in sound levels be substantial and that, when balanced against the benefits to employees, the cost is not excessive. Id.

Sound measurements were taken twice on September 17 for a total of 14 [*23] to 16 minutes, with a five-minute interval between each measurement. The noise levels ranged from 114 to 122 decibels. Firstly, we shall consider the lower sound level alone. Exposure to 114 decibels for more than 19 minutes during an eight-hour period is excessive. The chipper was in operation on September 17 for over seven hours during the operator's shift, including the interval between sound measurements. The measurements were taken at all locations to which the operator moved while operating the chipper, including the spot farthest from the mouth of the chipper to which the operator could move while tending the chipper. The source of the noise and the location of the highest noise level was the mouth of the chipper. Respondent suggests a variety of factors that might cause fluctuations in sound levels and exposure time. Since the minimum time of sampling was 14 minutes, we narrow the need for any inference to a period of five minutes because exposure at 114 decibels for 19 minutes is excessive. We consider it reasonable to draw this inference in light of the evidence of job performance and the time spent in its performance. Also, exposure for any period of time to sound [*24] levels of 115 dBA or more constitutes a violation. The validity of the 122 dBA measurement, taken at the chipper operator's ear as he fed wood into the chipper, is established both by Hutton's unrebutted testimony and by Pelton's measurement of 115 dBA at the same location on January 15 after baffles had been installed.

In the opinion of complainant's expert, Pelton, implementation of his recommendations as to engineering controls would reduce sound levels to 90 decibels within 12 weeks at a cost of no more than $5,000. His recommendations are neither novel nor complex. His testimony clearly establishes a prima facie case of technological and economic feasibility. Respondent does not claim that the techniques recommended by Pelton were unavailable on September 17, 1974. Rather, it contends (1) that Pelton was improperly qualified as an expert because he had insufficient experience with chipper noise control, or at least improperly credited over respondent's expert who denied that sound levels could be reduced to 90 decibels, and (2) that Pelton's recommendations were incomplete and, therefore, not feasible.

We hold that Judge Morris did not err in qualifying Pelton as an expert. [*25] Pelton had been working in the field of noise control for 12 years. His Beachelor's and Master's degrees in Mechanical Engineering included work in acoustics and noise control. Between 1963 and 1968 he was employed in the design, application, and laboratory and field testing of industrial noise control devices. Between 1968 and 1969 he was employed to design and sell noise control systems for commercial structures. Since 1969 he has operated his own acoustical consulting firm which was involved in private, commercial, and industrial noise control consultation. In addition, Pelton had occasion to survey and make noise reduction recommendations concerning two chippers prior to his survey of respondent's chipper.

In contrast, respondent's expert had received no degrees or special training in sound control. His testimony indicates that most of his practical experience involved experimentation in reducing noise generated by planers. Moreover, as indicated above, his one experience with chipper noise control corroborates Pelton's testimony because respondent was able to reduce sound levels at a chipper from 120 to 98 decibels by installing an enclosure similar to the one Pelton [*26] suggested as part of one of his recommendations. Respondent has not rebutted Pelton's testimony. During Pelton's cross-examination, respondent suggested that modifications in the chipper that might be necessary in order to implement Pelton's recommendations might generate costs Pelton failed to consider. Not only did respondent fail to show that any modifications would be necessary, but it failed to introduce any evidence conflicting with Pelton's cost estimate. During cross-examination, respondent also suggested several problems that might arise if Pelton's recommendations were implemented. Again, however, respondent did not show that any problems would arise. Moreover, each suggested problem was answered by Pelton with a simple remedy. n18 In short, the costs and likelihood of success in the event the recommended controls are implemented have been established.

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n18 Respondent contends that because of Pelton's inability to state with 100 percent certainty that his recommendations will be successful, complainant has not sustained its burden. We note that scientists, even those trained in applied sciences, do not make predictions with absolute certainty. In the instant case, Pelton stated that, according to his best professional judgment, implementation of his recommendations would reduce sound levels to a permissible level. We expect no greater statement of certainty.

[*27]

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Finally, we conclude that Judge Morris properly held that complainant sufficiently demonstrated employee exposure to sustain its burden of proving the violation alleged in item 4. Respondent admitted that no barriers restricted access to the passageway between the live roll conveyor and the bangboard. Nor does respondent deny that an employee might be struck by a piece of lumber upon entering the passageway while the live rolls are in operation. n19 Rather, it contends that its employees were not exposed to the alleged hazard. It is argued that none of respondent's employees normally entered the passageway, except for maintenance personnel and the employee stationed at the chain conveyor immediately adjacent to the passageway. These employees normally would not enter the passageway while the live rolls were active. Respondent has misconstrued the standard and the hazard that gave rise to it.

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n19 Respondent admits such possibility by charging an employee with the responsibility of deactivating the live rolls when anyone approaches the passageway.

[*28]

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Assuming arguendo that the hazard intended to be cured by the requirements of the standard was the possibility of being struck by lumber while the live rolls were in operation and the deactivation controls were functioning properly, we would conclude that complainant adduced sufficient proof of employee exposure to sustain its burden, i.e., that of the employee stationed near the passageway. Boise Cascade Corporation, 4 BNA OSHC 1205 (No. 2047, 1976). But the standard is directed at a more subtle danger. It requires a guarding mechanism intended to protect against the possibility of injury resulting from material moving along a declining or inclining conveyor when the normal mechanical or electrical control devices have ceased to function properly. The potential for injury resulting from the alleged hazard is substantially greater than that created by the normal operation of the live rolls because of the reliance naturally placed upon the control mechanisms. Lumber moves along the live rolls only intermittently. Therefore, it may not be readily apparent whether the deactivation device [*29] is functioning. Reliance upon the deactivation device alone, whether by the employee who controls the device or other employees who enter the passageway, n20 is insufficient. "The plain purposes of the standard are to avoid dependence upon human behavior and to provide a safe environment for employees in the machine area from the hazards created by the machine's operation." Akron Brick and Block Co., 3 BNA OSHC 1876, 1975-76 CCH OSHD para. 20,302 (No. 4859, 1975).

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n20 The evidence establishes that maintenance personnel may enter the passageway during the normal working day. They clearly have access to the hazard which the standard is designed to cure. See Gilles & Cotting, Inc., 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,488 (No. 504, 1976).

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Respondent has not argued that the penalties proposed by Judge Morris, $25 for item 2 and $40 for item 4, are inappropriate if the Judge's decision is upheld. Inasmuch as the penalties are not repugnant to the purposes of the Act, we will assess the penalties [*30] as proposed.

Accordingly, it is ORDERED that items 3, 7, 8(a), 8(b), and 9 be vacated, that items 2 and 4 be affirmed, and that respondent be assessed penalties of $25 and $40 respectively therefor.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, concurring:

As Commissioner Cleary observes, our precedents are dispositive of many of the issues raised by Respondent. Thus, I agree with his reasons for rejecting Respondent's arguments concerning the validity and proper interpretation of the noise standard, the enforceability of a standard which is incorporated by reference in the Federal Register, and whether the citation was issued with reasonable promptness. I also agree with my colleague's reasons for concluding that the citation stated the alleged violation of 1910.265(c)(18)(i) with particularity.

The remaining questions are whether the citation described the alleged violation of 1910.95(b)(1) with sufficient particularity, whether the citation was properly amended to allege a violation on January 15, 1975, whether the record establishes that the standards were violated, and whether the penalties assessed by the Judge are appropriate. As to these issues, I concur for the following reasons. [*31]

Concerning the alleged violation of 1910.265(c)(18)(i), Respondent argues that the Secretary failed to prove employee exposure to the hazard. The record, shows, however, that maintenance employees might have occasion to use the passageway between the conveyers when tthe conveyers are operating. Thus, these employees had access to the zone of danger. See Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976). Access of Respondent's employees to the zone of danger may also be inferred from the fact that an employee was instructed to deactivate the machinery when somebody entered the passageway. A violation of the standard is thus established.

Respondent claims that the alleged noise violation was not described with particularity because the citation failed to state the noise levels measured by the compliance officer and because it did not state that the violation involved a failure to utilize feasible engineering controls. As to the latter argument, it is sufficient to observe that the abatement requirement of the citation specified, "(c)ontinue to supply employee with suitable hearing protection until noise is attenuated by [*32] engineering controls." Thus, Respondent had only to read the entire citation to learn that it was charged with a failure to utilize engineering controls. See Schiavone Construction Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD para. 21,815 (No. 12767, 1977).

Normally, in order to describe a noise violation with sufficient particularity, a citation must specify the noise levels alleged to exist. See B.W. Harrison Lumber Co., 76 OSAHRC 49/A2, 4 BNA OSHC 1091, 1975-76 CCH OSHD para. 20,263 (No. 2200, 1976), pet. for review filed, No. 76-2619 (5th Cir., June 14, 1976). The purpose of the particularity requirement, however, is to assure that the employer is afforded sufficient notice of the alleged violation to enable it to either abate or to prepare a defense. B.W. Harrison Lumber Co., supra. In this case, the record shows that Respondent was fully aware of the noise levels produced by its chippers. Since Respondent had notice of this information, it is unimportant that the citation did not actually state the noise levels. See Gannett Corp., 4 BNA OSHC 1383, 1976-77 CCH OSHD para. 20,915 (No. 6352, 1976). Respondent's particularity argument must [*33] therefore be rejected.

Concerning the amendment issue, I agree that the amendment to allege a violation on January 15, 1975 was improperly granted. Since Respondent contested the earlier citation in good faith, it was not obligated to abate pending the outcome of the contest. 29 U.S.C. 659(b). The evidence pertaining to the noise levels on January 15, 1975 was admissible to serve as a basis for the testimony of the Secretary's expert concerning the feasibility of engineering controls. See Fed. R. Evid. 703. It is not necessary to consider whether that evidence can properly be used to prove the existence of excessive noise levels at the time of the alleged violation for, as the Judge found, that was proven even disregarding the measurements made on January 15, 1975. n1

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n1 The Secretary argues that the existence of a violation on January 15, 1975 as well as September 17, 1974 demonstrates that the violation was a "continuing violation" rather than an "isolated instance." The thrust of the argument is not clear, as the Secretary has not stated what consequences should result if the violation is continuing rather than transient. Since the abatement date is tolled pending the outcome of this proceeding, whether the violation is continuing or not appears to be irrelevant.

[*34]

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Turning to the merits, Respondent strenuously argues that the noise readings made by the compliance officer on September 17, 1974 are unreliable for various reasons. Respondent, however, did not introduce contradictory evidence. Furthermore, the Judge found that the Secretary's evidence was "direct, exact, concise, and persuasive." Under these circumstances, I accept the Judge's finding that excessive noise existed. See Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD para. 21,441 (No. 3395, 1976).

Respondent also argues that the Secretary failed to prove the feasibility of engineering controls in that the record does not establish that controls can successfully reduce the noise to below the limits specified in Table G-16. My colleague, after examining the record, concludes that the evidence establishes that Table G-16 limits can be achieved. In my opinion, it is sufficient to note that this is not a necessary element of a violation of the standard. Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD para. 21,009 (No. 3973, 1976), pet. [*35] for review withdrawn, No. 76-3229 (9th Cir., April 26, 1977). Respondent's own evidence establishes that a substantial reduction in noise can be achieved by the implementation of engineering controls. Such controls are, therefore, technologically feasible. Continental Can Co., supra.

The Judge's decision, however, predated our decision in Continental Can Co., supra, in which we held that the Secretary must prove the economic as well as the technological feasibility of engineering or administrative controls to reduce noise. Accord, Turner Co. v. Secretary of Labor, No. 76-2025 (7th Cir., Aug. 31, 1977). Thus, the Judge did not specifically determine whether engineering controls were economically feasible. I conclude, however, that economic feasibility was shown. We said in Continental Can Co. that economic feasibility is to be determined by weighing the benefits which controls will achieve against their cost. In this case, the existing noise levels are 114-122 dBA. The standard specifies that exposure at such levels for any time in excess of approximately 15 minutes per day is hazardous, yet the chipper operator works in the area for approximately seven [*36] hours per day. Even assuming that the earplugs worn by the chipper operator are used as effectively as possible, the operator is still exposed to high noise levels. n2 Furthermore, it cannot be assumed that earplugs will achieve their maximum potential effectiveness. See Castle & Cooke, Inc., 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD para. 21,772 (No. 10925, 1977), pet. for review filed, No. 77-2565 (9th Cir., July 14, 1977). Thus, in this case Respondent's chipper operator is exposed to a potentially serious loss of hearing.

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n2 Earplugs are capable of achieving a maximum noise attenuation of approximately 27 dBA. Continental Can Co., supra, 4 BNA OSHC at 1544, n. 10. Thus, at the highest noise level of 122 dBA to which the chipper operator is exposed, the earplugs would, at best, reduce the noise to 95 dBA, a level which still exceeds that permitted for seven hours per day.

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The Secretary's expert expressed the opinion that a reduction of approximately 30 dBA could be achieved at a cost of [*37] $3000 to $5000. Respondent's evidence showed that noise reduction at another chipper of approximately 20 dBA had been achieved at a cost of $9000. Thus, even Respondent's evidence shows that a very substantial reduction in noise level can be achieved. In view of the extremely hazardous noise levels which currently exist and the substantial reduction that is possible, then even accepting Respondent's cost figure the benefits to be achieved justify the expenditure. n3

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n3 In Castle & Cooke, Inc., supra, I concluded that controls which would reduce noise levels from 100 to 90 dBA were not economically feasible when the cost per employee to install the controls was $3,100 and annual costs of $1,100 would have been incurred. In this case, although the initial cost would be higher, there is no evidence of any continuing cost, and a much greater noise reduction will be achieved. Furthermore, the noise level prior to the implementation of controls is significantly higher in this case. These considerations lead to the conclusion that the cost-benefit ratio is much more favorable in this case than in Castle & Cooke.

[*38]

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Finally, Respondent has challenged the appropriateness of the penalties assessed by the Judge. I conclude, however, that the Judge's assessments are appropriate for the reason he assigned.