PRICE-POTASHNICK-CODELL-OMAN, a Joint Venture

OSHRC Docket No. 13171

Occupational Safety and Health Review Commission

December 15, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert A. Friel, Assoc. Reg. Sol., USDOL

Kenneth P. Eggers, for the employer

OPINION:

DECISION

BY THE COMMISSION:

Respondent, Price-Potashnick-Codell-Oman, is a joint venture that constructed approximately one-fifth of the Trans-Alaskan oil pipeline. An inspection of one of respondent's worksites approximately 25 miles north of Fairbanks was conducted on April 10, 1975. Respondent was issued a citation on April 21 alleging a nonserious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (the Act), for failing to install engineering controls to reduce noise generated by twenty earth-moving vehicles and seven airtrack drills. n1 Respondent timely filed a notice of contest, and a hearing was scheduled to be conducted by Administrative Law Judge Thomas J. Donegan on September 11, 1975. Before the hearing, however, the Secretary of Labor narrowed the dispute to twelve vehicles by withdrawing allegations relating to he other eight earth moving vehicles and the airtrack drills. n2

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n1 The standard with which respondent allegedly failed to comply reads:

1926.52 Occupational Noise Exposure

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(b) When employees are subjected to sound levels exceeding those listed in Table D-2 of this section, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of the table, personal protective equipment as required in Subpart E, shall be provided and used to reduce sound levels within the levels of the table.

Table D-2

Permissible Noise Exposures

Sound level

dBA slow

Duration per day, hours:

response

8

90

6

92

4

95

3

97

2

100

1 1/2

102

1

105

1/2

110

1/4 or less

115

n2 The remaining vehicles may be divided into four groups according to engine size and vehicle type: two of the vehicles are caterpillar D-8 spreaders, four are caterpillar scrapers with 631 engines, four are caterpillar scrapers with 641 engines, and two are caterpillar scrapers with 651 engines.

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Judge Donegan vacated the citation as to all vehicles on the ground that the noise [*3] reduction controls suggested by the Secretary were not feasible because (1) they would not have reduced the noise to which employees would be exposed to within levels permitted by the standard, and (2) vehicle operators wore ear plugs that reduced the noise reaching the operator's ears to permitted levels. The citation was vacated as to eight vehicles not tested during the inspection on the grounds that (1) measurements of the noise produced by four vehicles at the inspection were not probative of the noise produced by vehicles that were not tested, and (2) measurements of the noise produced by four vehicles tested one month after the inspection were not probative of the noise generated by those or other vehicles on the day of inspection. The Secretary took exception to the vacation and the supporting reasons. Chairman Cleary granted the Secretary's petition for discretionary review under the authority granted by section 12(j) of the Act, and directed review on the issues contained in the petition. n3 The main issues raised in the petition are: (1) whether a preponderance of the evidence establishes that the noise generated by the earth-moving vehicles exceeded permissible levels; [*4] (2) whether the Judge correctly concluded that engineering controls are not "feasible" unless they reduce noise to a level at which the wearing of personal protective equipment is not required; and (3) whether noise reduction controls must be used even if employees wear personal protective equipment that reduces actual exposure to permissible noise levels. For reasons given below, the Commission will also address an issue not raised in the petition, i.e., whether the engineering controls recommended by the Secretary are economically feasible.

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n3 Respondent filed a brief in opposition to the Secretary's petition for discretionary review. The brief contained a request to address several issues not raised in the Secretary's petition. The brief may be characterized as a petition for review. It was not granted. See Commission Rule 91a, 29 CFR 2200.91a. While we do not address the issues raised in the brief, we nevertheless call respondent's attention to the following cases: Reynolds Metals Company, 3 BNA OSHC 1749, 1975-76 CCH OSHD para. 20,214 (No. 4385, 1975) (Secretary's right of discovery); Love Box Co., 76 OSAHRC 45/D5, 4 BNA OSHC 1138, 1975-76 CCH OSHD para. 20,587 (No. 6286, 1975) (validity of dosimeter readings); Turner Company, 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1976-77 CCH OSHD para. 21,023 (No. 3635, 1976), rev'd, No. 76-2025 (7th Cir., August 31, 1977) (vagueness of the standard).

[*5]

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I. Facts

On April 10, 1975, the twelve vehicles that allegedly generated excessive noise were digging and hauling dirt as part of the construction of a pad on which the oil pipeline was to be constructed and access roads to the pad from the nearby Elliot Highway. Two D8H caterpillars were spreading dirt in an area known as Pit 65, which was at mile 28 on the Elliot Highway near Fairbanks. All 631 and two of the 641 caterpillars were hauling dirt from an area known as Pit 66, which was at mile 35 on Elliot Highway, to a spot approximately two and one-half miles away. The 651 and remaining 641 caterpillars were hauling dirt a distance of four miles from an access road at mile 30. Only the 631 caterpillars were equipped with mufflers, and none of the vehicles was equipped with other types of sound reduction or absorption equipment.

Nine of the vehicles were in operation during the normal ten-hour workshift. One 641 and both 651 caterpillars were used for four and one-half hours before the lunch break, after which they were driven for three hours to a location several miles away. During the April [*6] 10 inspection, the compliance officer measured the noise generated by four of the vehicles, one from each of the groups specified in footnote 2, supra. Additional noise measurements were taken one month later in another inspection in the nature of discovery after the commencement of the proceeding. The noise generated by several vehicles was not measured at either inspection The vehicles and the measurements therefor are set out in the following table.

Vehicle

Identification

April 10 n4

May 14 n5

Type

number

dBA level

dBA level

D8H

206

110

108

D8H

446

631

337

99

631

339

   93 n6

631

340

98

631

399

641

326

641

336

96

101

641

346

641

392

98

651

394

103

651

397

98

100

The vehicle operators wore personal protective equipment that reduced the noise levels reaching their ears to less than 90 dBA, a level permitted by the standard.

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n4 These figures represent the lowest level recorded by an A-scale sound meter on which the recording needle fluctuated.

n5 These figures represent measurements recorded by a sound measurement device known as a dosimeter. The Commission has held that measurements by the device meet the requirements of noise standards. Love Box Co., supra, note 3.

n6 This measurement was recorded when the vehicle was idling, not when it was in full operation, when a higher measurement would have been recorded.

[*7]

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Each vehicle performed operations indistinguishable from those performed by other vehicles in its group, and was constructed of parts indistinguishable from those used on other vehicles in its group. It was on the basis of these similarities, and the noise measurements taken on May 14, that the Secretary alleged that the operators of all twelve vehicles were exposed to excessive noise.

During the hearing the parties stipulated as follows:

(2) That by the installation of a muffler as identified in Stipulation No. 1 [attached as appendix A] for D8H, 641 and 651 Caterpillar equipment, an approximate 3 dBa reduction of sound pressure level in the ear zone of the operator will be achieved whether measured at a single operating sound level or by computing the combined effect of the operating noise by application of the cumulative formula set forth in Table D-2 in 29 CFR 1926.52.

* * *

(3) That this sound pressure level in the ear zone of the operator is increased to a total reduction of 4 dBa if a muffler, floor mat and acoustical headliner is also installed on the D8H.

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(4) That the installation [*8] of a muffler, floor mat and headliner on the D8H or the installation of a muffler on the D8H, 641, and 651, would not reduce the sound level pressure in the ear zone of the operator to allowable limits for an 8-hour work day measured by computing the combined effect of the noise by application of the cumulative formula set forth in Table D-2 in 29 CFR 1926.52.

* * *

(5) That by the installation of acoustical sound absorption materials that are available from Tube-Lok, a Division of Portland Wire and Iron Works, 4644 S.E. 17th Avenue, Portland, Oregon 97202 (503-234-9737), in either bulk or kit form, approximately a 9 dBA reduction of sound pressure level in the ear zone of the operator will be achieved on the 631, 641, 651 Caterpillar equipment identified in Stipulation No. 1, whether measured at a single operating sound level or by computing the combined effect of the operating noise by application of the cumulative formula set forth in Table D-2 in 29 CFR 1926.52. The cost of installation of the acoustical sound absorption materials would be approximately $2,000 for materials and labor for each 631, 641, 651 identified in Stipulation No. 1.

* * *

(6) That the installation of [*9] the acoustical sound absorption materials identified in Stipulation 5 would not necessarily assure daily compliance within allowable limits by reducing the sound pressure level in the ear zone of the operator on the equipment identified in Stipulation 1 for the 10-hour shift time worked by Respondent's operators at the time of the inspection. That is, while compliance may be achieved on any given day, by the nature of the different tasks required to be performed by the operators, the different conditions under which the operators are required to perform these tasks and the 10-hour shift the operators work, it would still be necessary for the operators to wear ear protective equipment to be in compliance with 29 CFR 1926.52.

II. Vehicles Tested At Inspection

Judge Donegan vacated the citation as to the four vehicles tested during the April 10 inspection on the ground that the vehicle operators were not exposed to excessive noise. The operators wore personal protective equipment that shielded their ears from noise in excess of the permitted 90 dBA level. The Judge considered that fact to be controlling even though he found that the vehicles emitted excessive noise. The vacation [*10] was based on an interpretation of the standard that was subsequently disapproved by the Commission in Continental Can Company, 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD para. 21,009 (Nos. 3973, et al, 1976). There the Commission interpreted the standard to require the use of feasible engineering controls when employees were exposed to excessive noise even if personal protective equipment shielded employees' ears from excessive noise. We therefore reverse his action as to these four vehicles.

III. Vehicles Not Tested On April 10

A. Similarity Between Tested and Untested Vehicles.

Although the compliance officer testified that noise generated by earth-moving vehicles depends partially upon their age, maintenance, and over-all condition, and the terrain over which they are driven, he further testified that the noise generated by any of the vehicles was not more than 3 dBA higher or lower than vehicles of the same group, as described by footnote 2, supra. The compliance officer also testified that noise measurements taken on May 14 were indicative of noise generated by vehicles during the inspection one month earlier. Respondent's expert witness agreed [*11] that vehicular noise depended upon the factors noted by the compliance officer, but he disagreed with the compliance officer's further testimony. The Judge expressly rejected as unsupported by the record the compliance officer's testimony that noise levels of tested and untested vehicles were roughly the same. He also found that noise measurements taken one month after the April 10 inspection were not probative of noise generated by vehicles during the inspection. The only apparent basis for this finding is that the Judge was not persuaded by the evidence that the conditions of the vehicles and the environment were substantially similar on the two days when noise measurements were made. Judge Donegan vacated the citation as to the eight vehicles that were not tested on April 10.

Commissioner Barnako believes that the Judge properly found that the evidence does not support the comparison of vehicles urged by the compliance officer. In addition to the similarity of vehicular parts, the compliance officer based his opinion upon the apparent condition of the vehicles. The compliance officer, however, made only a casual observation of the vehicles. He did not inspect each vehicle [*12] to determine the quality of maintenance. The factors noted by the compliance officer as affecting the noise generated by the vehicles related to their condition. Commissioner Barnako is not persuaded that a mere similarity in parts is sufficient to sustain a comparison that in large measure depends upon the maintenance of those parts when the only evidence of their maintenance is the compliance officer's casual observations. See generally Manning v. New York Telephone Co., 388 F.2d 910, 912 (2d Cir. 1968); Lever Bros. Co. v. Atlas Assur. Co., 131 F.2d 770, 777 (7th Cir. 1942); 2 Wigmore, Evidence 437 (3d ed. 1940).

Chairman Cleary would hold that the Judge erred. In his opinion, the deference owed to the Administrative Law Judge's evaluation of the evidence is diminished by the fact that expert opinion evidence is being weighed. Compare Evansville Materials, Inc., 77 OSAHRC 143/F1, 3 BNA OSHC 1741, 1975-76 CCH OSHD para. 20,157 (No. 3444, 1975) with West Point Pepperell, Inc., 77 OSAHRC 48/B14 OSHC 1257, 1977-78 CCH OSHD para. 21,751 (No. 8255, 1977) (Lead and Dissenting opinions), appeal docketed, No. 77-2156, 5th Cir., June 6, [*13] 1977. The compliance officer had inspected more than one hundred earth-moving vehicles during his three years as an industrial hygienist prior to inspecting respondent's. Respondent's expert never conducted a noise inspection of caterpillar scrapers and had been employed as an industrial hygienist for less than one year before the hearing. The Chairman believes that the compliance officer's testimony is consistent, and accounts for variations in noise levels caused by the factors he listed. The compliance officer testified that several factors would have caused variation in the noise generated by similar vehicles, and that the variations could be as great as 3 dBA, higher or lower, but no greater, because of the similarity of component parts of vehicles within each group. The Chairman credits the testimony of the compliance officer because of his credentials and the consistency of the testimony. He also finds the testimony persuasive because of the substantial similarity of vehicles within each group.

B. Significance of Stipulations

Commissioner Barnako and the Chairman nonetheless agree that the Judge erred in vacating the citation as to the vehicles that were not tested [*14] on April 10. As noted above, the parties stipulated to several facts during the hearing. The stipulations, quoted above, establish that the installation of acoustical sound absorption materials on all 631, 641, and 651 caterpillars would reduce the noise levels to which operators are exposed by approximately 9 dBA, but would not necessarily reduce the levels to those permitted by the standard. Similarly, the installation of a muffler, floor mat, and headliner on the D8H caterpillars would reduce exposure levels by 4 dBA, and that the reduced levels would be excessive. If reductions of 4 and 9 dBA would not reduce noise level exposure to the 90 dBA level permitted by the standard, the noise generated by the vehicles necessarily exceeded the permitted level by at least the amount of the anticipated reductions. Stipulations are to be read in light of each party's knowledge of its theory of the case. Noern Motor Freight v. Eastern Railroad Pres. Conf., 155 F. Supp. 768, 836 aff'd. 273 F.2d 218 (3d Cir. 1959), rev'd on other grounds 365 U.S. 127 (1961). It is clear from the record and respondent's brief on review that respondent's theory is that engineering controls [*15] that do not reduce noise to within permitted levels are not feasible. Respondent therefore stipulated that sound absorption materials would affect a significant noise reduction in order to test the theory in a clear case. The Commission has rejected respondent's theory, Continental Can Co., supra, but the facts established by the stipulations remain. These facts require a reversal of the Judge's vacation as to the eight vehicles untested on April 10.

IV. Economic Feasibility of Controls

A divided Commission has interpreted the word "feasible" in 29 CFR 1910.95(b) to have an economic as well as technological dimension. Continental Can Company, supra. This interpretation was approved subsequently by the Seventh Circuit Court of Appeals in Turner Company, No. 76-2025 (August 31, 1977). Commissioner Barnako adheres to this interpretation for the reasons contained in these decisions and in Castle & Cooke Foods, Inc., 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD para. 21,854 (No. 10925, 1977) appeal docketed, No. 77-2565, 9th Cir., July 14, 1977. Chairman Cleary disagrees, and is of the opinion that this interpretation is fundamentally incorrect [*16] for the reasons stated in his dissenting opinion in Continental Can, supra, Castle & Cooke Foods, Inc., supra, and Great Falls Tribune Company, 77 OSAHRC 86/B7, 5 BNA OSHC 1443, 1977-78 CCH OSHD para. 21,844 (No. 6632, 1977), appeal docketed, No. 77-2566, 9th Cir., July 14, 1977. For the reasons stated in Great Falls Tribune, supra, he considers it error to continue to follow the precedent represented by Continental Can, supra.

Although this case was heard before Continental Can, supra, had been decided, the parties stipulated to the labor and material costs for installing the engineering controls suggested by the Secretary. The purchase and installation of mufflers would cost $628.28 for each of the caterpillar spreaders and $485.41 for each of the 641 and 651 scrapers. The acoustical sound-absorption materials would cost $2,000 for each caterpillar scraper. The controls are commercially produced and available. There is no evidence that they would interfere with the normal operations of the vehicles. n7 On review, however, respondent argues that it has not had the opportunity to litigate fully the economic feasibility issue. [*17] Respondent argues that the cost of maintaining mufflers in operating order while working in conditions that range from dust to much is significant, and therefore, a necessary element in making the cost-benefit analysis required by Commission precedent. Based on testimony of its expert witness, respondent further argues that installation of acoustical sound absorption materials might generate sufficient heat to make working in the closed cabs of the treated vehicles impossible unless expensive modifications were made in the vehicles or sound absorption materials. Finally, respondent argues that the number of employees exposed to the noise has not been established.

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n7 On review respondent claims that installation of the suggested sound absorption materials might interfere with a vehicle operator's vision, thereby creating a safety hazard. There is no evidence to support this claim. The claim must be rejected, therefore, whether it is an indirect attempt to raise a greater hazard defense or related to the technological feasibility of the suggested controls. Respondent was, or should have been fully aware of these issues at the hearing. See, e.g., Industrial Steel Erectors, Inc., 74 OSAHRC 2/E5, 1 BNA OSHC 1497, 1973-74 CCH OSHD para. 17,136 (No. 703, 1974); Anchor Hocking Corp., 75 OSAHRC 74/C8, 3 BNA OSHC 1889, 1974-75 CCH OSHD para. 19,854 (No. 3783, 1975). These issues, therefore, are closed.

[*18]

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Commissioner Barnako votes to vacate the decision before us and remand the case to the Judge to receive additional evidence from the parties of the costs of compliance and to render a decision on the issue of economic feasibility. Although Chairman Cleary adheres to the views expressed above on the issue of economic feasibility n8, he nevertheless votes to vacate and remand for the additional proceedings in order to avoid the less desirable alternative of having an evenly divided vote that would fail to resolve the issues of this case. Cf. Shaw Construction Co. v. OSAHRC, 534 F.2d 1183 (5th Cir. 1976); Dunlop v. Continental Oil Company, No. 75-1961 (6th Cir. October 17, 1977).

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n8 The Chairman believes that economic factors properly should be and are considered at other stages. See fn. 22 in the Commission's Turner decision, supra.

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Accordingly, the Administrative Law Judge's decision is vacated and the case is remanded [*19] for further proceedings consistent with this opinion.

APPENDIX A

Stipulation No. 1

Stipulation #1 involved the equipment that remains in the complaint - it identifies the item, the shipping date of the item, identifies the equipment, identifies the company's number, identifies the serial number of the equipment (the company's actual serial number), identifies the engine of the equipment and the number of cylinders; identifies the muffler part available in regard to those items where mufflers are alleged to be required; and we have stipulations as to the costs of obtaining and installing this particular equipment. I'll just take these in order and read them into the record:

Item 1C is referencing the complaint, was shipped on 5-16-71, it's a D8H Caterpillar equipment, the company's number is 3CA121206, serial number is 46A25731, the engine is a D342 6-cylinder - the muffler part available for this piece of equipment is 8S4990, and the cost of that muffler is $543.28, the labor-installation cost was $85.00.

Moving now to item 1D the second D8, that was shipped on 10-30-70, it's a D8H, company's number 3CA-12-446, serial number 46A24405, engine D342, 6-cylinders, muffler [*20] part #8S4990, and the cost of the muffler was $543.28 and the labor installation was $85.00.

Item 2A of the complaint was shipped on 5-27-71, it's a 641, company's #3CA1-326, equipment serial number 41M151, engine D346, with a 60 degrees slant on the cylinder - (that means that the cylinders come out on each side of the block and the angle between them is 60 degrees). There's a muffler available which is part #856559 and that cost is $96.96 - it also requires installation of an elbow which is part 8S6711, the elbow price is $203.45 - the total cost of the elbow muffler being $300.41, our estimated labor installation cost (which would include at least some modifications to the hood) is $185.00 - for a total minimum installation cost of $485.41.

Next item is 2B - this was shipped 6-8-71, this is a 641, company #3CA12-392, serial #41M204, engine is a D346 with the 60 degrees slant - I will not read the costs which are the same as item 2A for the elbow, muffler and labor costs.

Item 2C was shipped in approximately the spring of '71, it's a 641, company's number is 3CA-13-336 (we do not have the serial number for that piece of equipment). It's our understanding between the parties [*21] that there is some lack of finality here that the engine and the parts numbers - for the muffler and elbow and labor costs are the same as the previous items. In regard to that item the company's number, there's some question whether it was a 641 but the photograph in our evidence it's a 641 - but whether it's a 641 or 631 our case is the same, it did not have a muffler on it (there's no actual problem because of this).

Item 2D was shipped on 6-4-71, it's a 641, company number is 3CA-13-346, serial number is 41M203, it has the same engine, muffler and elbow part number and the same cost as the previous 641.

Next item 2E was shipped on 2-27-67, this is a 651, company number is 3CA-13-394, serial number is 33G295, this engine is a D346 at 90 degrees angle difference cylinders on each side, the serial numbers for the elbow, muffler and the labor costs are the same as for the 641 above-described.

Next is item 2F which was shipped on 5-3-63, it's a 651, company number 3CA-13-397, serial number 33G134, the engine, muffler, elbow and costs are the same as the previous 651 identified.

Moving now to 3A, that was shipped on 5-3-72, it's a 631 piece of equipment, company number 3CA-13-337, [*22] serial number 67M4302, the engine is a D343, straight-6.

Moving now to item 3B, shipped on 6-11-73, equipment is a 631, company number 3CA-13-339, serial 67M4920, and it's a straight 6 D343.

Next is item 3C, shipped 7-14-73, equipment 631, company number is 3CA-13-340, serial number 67M4571, engine is also a straight-6, number D343.

And the last item is 3D, shipped 6-26-70, equipment is 631, company number 3CA-13-399, serial number 67M3437, engine is also a straight-6, D343.

That is Stipulation #1. For clarification, the shipping date is the shipping date out of the factory in Peoria at Caterpillar factory, the serial number is the serial number of the company on that piece of equipment (the Caterpillar Company's serial number) - the company's serial number, the 3CA number, the Bechtel number is just an identification number for bookkeeping purposes for Respondent.