OSHRC Docket No. 11869
Occupational Safety and Health Review Commission
April 8, 1977
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
Baruch A. Fellner, Office of the Solicitor, USDOL
Daniel W. Teehan, Regional Solicitor, U.S. Department of Labor
Douglas B. M. Ehlke, Law Department, Weyerhaeuser Company, for the employer
On December 16, 1976, following a lengthy trial with numerous expert witnesses and lay witnesses Administrative Law Judge Robert N. Burchmore ordered that a citation issued to Weyerhaeuser be vacated for failure of proof. His decision is before the Commission pursuant to an order on Commissioner Moran's own motion that the decision be reviewed for error. No party has expressed objections to the Judge's decision. Indeed, in the only brief filled with the full Commission Weyerhaeuser urges that the Judge's decision be affirmed. Also, inasmuch as the Judge's holding is almost entirely factual, it does not appear to raise any issues of compelling public importance justifying full review by the Commission. Under the circumstances, we decline to pass upon the Judge's decision, and we do not accord it binding precedential value. Star Circle Wall Systems, Inc., 4 BNA OSHC 1011, CCH 1975-76 [*2] OSHD para. 20,502 (No. 3271, 1976); Penn-Dixie Industries, Inc., 4 BNA OSHC 1209, CCH 1975-76 OSHD para. 20,703 (Nos. 8718 & 3880-P, 1976).
Accordingly, the Judge's decision is affirmed.
We deny Weyerhaeuser's request that we re-examine our decision in Turner Co., 4 BNA OSHC 1554, CCH OSHD para. 21,023 (No. 3635, 1976), appeal docketed No. 76-2025, 7th Cir., Oct. 18, 1976, on the validity of the noise standard in light of the record in this case. No party in this case objects to the Judge's decision. We are therefore aware of no contest or controversy having sufficient immediately and reality to consider whether a declaratory order should be entertained. Also, the parties have not addressed the issue of whether the specific contest provisions of the Act displace the declaratory order provisions of 5 U.S.C. section 554(e).
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the majority's view regarding [*3] the significance of decisions rendered by Review Commission Judges.
DECISION AND ORDER ON REMAND
Altero D'Agostini and Donald F. Rector, for the Secretary of Labor
Douglas B. M. Ehlke, for the respondent
The original decision herein, dated September 11, 1975, held that the regulation contained in 29 C.F.R. 1910.95(b) was constitutionally invalid. By decision dated September 15, 1976, the Commission reversed upon the authority of its decisions in Secretary v. Turner Company, Division of Olin Corp., No. 3635, August 24, 1976, and Secretary v. Continental Can Company, No. 3973, August 24, 1976. n1 It remanded this case for a decision on the merits, and called for findings within the guidelines of Turner and Continental Can. The Commission further provided that the parties might present additional evidence on "the feasibility question" if they so desired.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 OSHC 1541, 1554
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The feasibility question under Turner and Continental Can involves two facets; technical [*4] feasibility and economic feasibility. Neither side has requested an opportunity to introduce additional evidence on either of these facets as to engineering controls. I conclude that the decision on the merits should be based upon the present record.
While the Secretary did not indicate any desire for further hearing on technical or economic feasibility of engineering controls, he did make application for certain discovery depositions and his solicitor stated that the purpose of such discovery was to develop the feasibility of administrative controls. However, that issue was disposed of in the original decision and the decision was not appealed or reversed on that issue. I there held (Finding No. 17) that the evidence was insufficient to establish the feasibility of administrative controls. The Secretary did not challenge that finding and it was left undisturbed by the Commission's decision. There is therefore no basis for further discovery or hearing thereon.
Turning to the feasibility of engineering controls, the original decision expressly found certain controls to be technically feasible. (Finding No. 14). That finding was not appealed from and was not disturbed by the [*5] Commission's decision. Accordingly, there is left for decision only the issue as to economic feasibility of engineering controls.
The Secretary introduced no evidence on the question of economic feasibility of engineering controls. However, the respondent did introduce evidence as to the cost of certain proposed engineering controls; it also introduced evidence as to the effectiveness of such controls. (Finding No. 13). This evidence showed, and I found, that the hanging of vinyl curtains near the single facer machine would cost $6,000 to $8,000 and that such devices would reduce the sound level by one or two decibels. On the basis of that evidence I now find that the hanging of vinyl curtains is not economically feasible. As to all other possible engineering controls, I find that the Secretary has failed to sustain the burden of proving them to be economically feasible.
It is ORDERED that the application of the complainant for discovery proceedings be and the same is hereby DENIED, that the citation be and the same is hereby VACATED and that this proceeding be and the same is hereby DISCONTINUED.
Robert N. Burchmore, Judge OSHRC
Dated: December 16, 1976