SECRETARY OF LABOR,
Complainant,

v.

THE SHERWIN WILLIAMS COMPANY,
Respondent.

OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION AND ITS LOCAL 7-268,

Authorized Employee
Representative.

OSHRC Docket No. 14131

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BUCKLEY, Commissioner:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

The primary issue on review is whether engineering controls proposed by the Secretary to reduce noise at Sherwin-Williams' plant are "feasible" within the meaning of the occupational noise standard at 29 C.F.R. 1910.95(b)(1).[[1]]  The judge found that the controls were not feasible and vacated a citation alleging a violation of the standard.  For reasons given in our separate opinions, Chairman Rowland and I affirm the judge's decision.

I
Sherwin-Williams was cited for failing to use engineering controls to reduce noise levels at its Chicago, Illinois can manufacturing plant.  The judge described the can production process as follows:

The operation is housed in two multi-story buildings.  There are 33 punch presses which make various can components, lids, tops, bottoms, handles, the ears to which bails attach and top rings.  There are seven continuous can making production lines which fabricate metal cans of various sizes and shapes.  A typical can making line begins with a machine called a feeder-slitter.  This machine is used to cut tinplate sheet metal into blanks of proper size to be formed in the next machine into a can body.  The bodymaker is a press which forms the flat plate, usually into a cylinder which is then joined at the edges.  Sometimes the ears are added.  The body moves next to a flanger where the top and bottom edge are crimped.  It then passes to a seamer where the ends are attached.  In some lines the next step is to a doper where a plastic sealant lining is sprayed inside the can.   The finished can is then passe[d] to a tester for air pressure checking for leaks, then on to packing tables for placement by hand into cardboard cases. Movement from station to station is continuous along metal tracks drops and chutes with the cans being propelled by means of moving belts and chains, gravity, vibrators and with the can being turned by air jets, magnets and cans.  Employees attend each operation and observe the conveyor lines.

The parties stipulated that 250-280 Sherwin-Williams employees "work in ambient sound levels for periods of time which are in excess of levels set forth in Table G-16," and that administrative controls to reduce or eliminate the excessive noise are not feasible. The sound levels range from 84 to 112 dBA.

The Secretary presented Howard Pelton as an expert witness on the feasibility of engineering controls.  Pelton was an acoustical engineer, noise consultant and designer of industrial noise controls.  He had conducted more than 300 noise surveys, some of which involved can manufacturing plants.   He was designing industrial noise controls for a can manufacturing plant at the time of the hearing but had not previously designed controls that had been implemented in a can manufacturing plant.  Pelton conducted an extensive noise survey at Sherwin-Williams' plant.  He testified that engineering controls could be installed that would bring noise levels to 85-88 dBA throughout the plant.  He proposed a number of methods for dealing with the many different types of machine. These methods included the installation of acoustical panels, enclosure and partial enclosure of machines, the hanging of acoustical baffles from the ceiling and the placement of sound absorptive barriers between machines.  Pelton also recommended the installation of air silencers, the coating of moving parts with urethane, the redesign of certain machinery, and the tightening of loose parts.  Pelton did not actually construct prototypes of any of his recommended abatement methods.  Pelton estimated that labor and materials for the controls would cost approximately $885,590.  He did not consider the details of how his proposals would affect maintenance or production but did state that there would be no increase in costs due to increased maintenance or losses in production.

Benson, an electrical engineer who designed noise control systems, testified for Sherwin-Williams on the feasibility of the noise controls recommended by the Secretary.  Benson testified that Pelton had developed concepts for noise reduction, but had not made calculations that would have demonstrated that his concepts would abate noise levels to the degree he claimed.  Using the drawings of controls made by Pelton, Benson calculated the sound levels that Pelton's recommendations would actually achieve at four types of machine.  Benson testified that Pelton's recommendations would not result in reductions to within Table G-16 limits.

Four of Sherwin-Williams' witnesses testified on the cost of Pelton's controls.   Monchunski, a sales engineer for a metal fabricating company, testified that it would cost $1,028,451 for the materials and labor needed to realize Pelton's recommendations. Chimmens, Sherwin-Williams' chief industrial engineer, testified that the extra manpower and lost production resulting from the installation of the controls would cost an additional $201,252.  He testified that coating the tracks of the conveyors with plastic would cost $20,000.  Willer, a master mechanic for Sherwin-Williams, testified that additional maintenance costs, including the wages of an additional machinist, would require more than $32,000 per year.  Drogos, the liaison engineer for Sherwin-Williams, estimated that the engineering time required to implement Pelton's controls and the scrapping of existing guards would cost $340,000.

The Secretary introduced three expert witnesses on the effectiveness of ear plugs generally and as used by Sherwin-Williams. William Plotkin, Ph.D., the executive director of the Chicago Hearing Society, had an extensive background in audiological testing. He testified that Sherwin-Williams' hearing conservation program was not effective and did not protect the hearing of its employees. Plotkin stated that some of Sherwin-Williams employees would suffer hearing loss if they continued to work in present sound levels. Both J.V. Tobias, Ph.D., an expert in psycho-acoustics and audiology, and John Fletcher, Ph.D., a researcher in otolaryngology were in agreement with Plotkin's assessment of Sherwin-Williams' program.  Fletcher and Tobias stated that a combination of engineering controls and personal protective equipment was required to prevent employee hearing loss in the presence of excessive noise.  From the audiometric records, Fletcher identified 15 employees who had suffered hearing loss.  Tobias also testified that if "Peacekeeper" earplugs were properly worn by employees exposed to a noise level of 95 dBA, he would expect 50% of the employees to be exposed to less than 80 dBA and 94% of the employees to be exposed to less than 90 dBA.  With a noise level of 100 dBA, Tobias would expect 84% to be exposed to a noise level under 90 dBA.

Victor Hildyard, M.D., a clinical professor of otolaryngology at the University of Colorado Medical School, testified for Sherwin-Williams.  According to Dr. Hildyard, earplugs are an effective method of preventing hearing loss.  He identified 35 of the 378 employees tested as having possibly suffered hearing loss, but stated that the hearing loss suffered by Sherwin-Williams' employees as a whole was comparable to that experienced by a similar group at sound levels of 80 dBA.  He stated that an employee exposed to sound levels of 108 dBA could receive a 30 dBA reduction in noise exposure if earplugs were worn.  He testified that it was not necessarily more advantageous to use engineering controls to reduce sound levels from 108 decibels to below 90 decibels when this 30 decibel reduction was available.

Thirteen of Sherwin-Williams' employees testified on the Secretary's behalf regarding the wearing of earplugs and earmuffs at the plant.  They testified to a number of complaints that they attributed to the wearing of earplugs, including discomfort, difficulty in communication, hearing loss, difficulty in determining the source of sounds, and ear infections.  There was also testimony that employees took earplugs out during the workday and altered the plugs to make then more comfortable.  Three employees also testified, however, that the failure to wear earplugs was a serious breach of Sherwin-Williams' safety rules.

II
The administrative law judge vacated the citation.  Relying on the Commission's decisions in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD 21,009 (No. 3973, 1976), and Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD 21,854 (No. 10925, 1977), aff'd, 692 F.2d 641 (9th Cir. 1982), he found that the engineering controls proposed by the Secretary were technologically feasible but were not economically feasible because the benefits to be gained did not justify the cost of controls.[[2]]

The judge found that Pelton's predictions that controls would reduce levels below 90 dBA were "well founded" and that even Benson's testimony indicated that Pelton's controls would accomplish a "substantial" reduction.  The judge also found that "[t]he proper wearing of earplugs or earmuffs would have reduced the sound levels reaching employees' eardrums to less than 90 dBA." The judge determined that the controls would cost $1,800,000, or $6,249 per employee, including $1,000,000 for labor and materials, $200,000 for engineering, and $200,000 per year in lost production and increased maintenance costs for the three years required to implement the program.  He found that lost production and increased maintenance would continue at an annual rate of $228,000 or $814 per employee after the three year start-up period.[[3]]

The Secretary argues that the proposed engineering controls are economically feasible because their costs would not jeopardize Sherwin-Williams' financial position to the extent that it might be driven out of business, and because the increment in employee protection is significant compared to the costs of controls.  The Secretary and the authorized employee representative urge rejection of a Continental Can type of cost-benefit test, which requires that the benefits of engineering controls justify their cost.

The Secretary maintains that even under the Continental Can test, his proposed engineering controls are feasible.  He claims that the controls, which would initially cost $4,286 per employee and would under the employer's own evidence cost an additional $714 per employee per year (see note 3 supra), cost less per employee than the controls in Carnation Co., 78 OSAHRC 54/D9, 6 BNA OSHC 1730, 1978 CCH OSHD 22,837 (No. 8165, 1978), aff'd, 641 F.2d 801 (9th Cir. 1981).  In that case, one Commissioner found that the benefit of engineering controls outweighed the costs where the total costs were less than $100,000.  The Secretary also takes exception to the judge's finding that losses in production and increased maintenance costs would cost Sherwin-Williams $200,000 per year.  He relies on Pelton's testimony that the controls are compatible with Sherwin-Williams' existing production process and therefore that no additional annual costs would be incurred.

Sherwin-Williams urges the Commission to affirm the judge's application of the cost-benefit test announced in Continental Can and Castle & Cooke.  It also contends that it was reasonable to expect that Pelton's enclosures would cause losses in production and add to the maintenance costs.  Sherwin-Williams urges the Commission to adopt the judge's finding that these factors would cost an additional $200,000 per year.

Sherwin-Williams contends that it has an effective hearing conservation program.  It relies on the results of the audiometric tests it administered and on the testimony of Dr. Hildyard that the hearing of Sherwin-Williams' employees was equivalent to that of a group of people working in ambient noise levels of about 80 dBA.  Sherwin-Williams also relies on Dr. Tobias' testimony that the proper wearing of the Peacemaker type of earplugs by its employees will result in exposure below 80 dBA for more than 95% of its employees.  Sherwin-Williams claims that testimony from its employees about the negative aspects of wearing earplugs does not establish that wearing earplugs caused infections, or, because Table G-16 allows short exposures to excessive sound levels, that employees who occasionally removed earplugs would suffer hearing loss as a result.

III
The Commission last interpreted the word "feasible" in section 1910.95(b)(1) in Sun Ship, Inc., 82 OSAHRC 69/A2, 11 BNA OSHC 1028, 1983 CCH OSHD 26,353 (No. 16118, 1982).  There, the Commission overruled Continental Can's holding that the Secretary must demonstrate that the benefits to be achieved by engineering or administrative controls justify the costs of the controls.  It adopted an interpretation of "feasible" similar to that advocated by the Secretary in his brief on review in this case.  Sun Ship held that the Secretary must demonstrate that the cost of administrative and engineering controls will not threaten the long-term profitability and competitiveness of the employer, or show that the employer's difficulty in affording the controls is a result of his inability to keep up with safe practices in his industry.  In concluding that section 1910.95(b)(1) is not susceptible to cost-benefit analysis, Sun Ship relied on the definition of "feasible" given by the Supreme Court in American Textile Manufacturers Institute v. Donovan, 452 U.S. 490 (1981) ("ATMI").  In ATMI, the Supreme Court held that "feasible" as it is used in section 6(b)(5) of the Act, 29 U.S.C. 655(b)(5),[[4]] means "capable of being done" and does not require a weighing of costs and benefits.

By contrast, in a decision issued shortly before Sun Ship, the Ninth Circuit affirmed the Commission's decision in Castle & Cooke applying a cost-benefit analysis.  Donovan v. Castle & Cooke Food, 692 F.2d 641 (9th Cir. 1982).  The Ninth Circuit reached a different conclusion than did the majority in Sun Ship, noting that the ATMI decision limited its construction of "feasible" to standards promulgated under section 6(b)(5) of the Act, "a distinct 'species of the genus of standards governed by the basic requirement' of the Act." 692 F.2d at 648, quoting Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 642 (1980).  The Supreme Court expressly reserved judgment on how section 3(8) of the Act, 29 U.S.C. 652(8), might affect the promulgation of standards under other provisions of the Act.  ATMI, 452 U.S. at 513 n.32.  That section defines an "occupational safety and health standard" as a standard that requires "reasonably necessary or appropriate" measures.  Thus, the Ninth Circuit held that the Commission was not required by ATMI to abandon the cost-benefit approach of Continental Can, which had been upheld by every court of appeals that considered it.  See Carnation Co. v. Secretary of Labor, 641 F.2d 801 (9th Cir. 1981); International Harvester Co. v. OSHRC, 628 F.2d 982 (7th Cir. 1980); RMI Company v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979); Marshall v. West Point Pepperell, Inc., 588 F.2d 979 (5th Cir. 1979); Turner Co. v. Secretary of Labor, 561 F.2d 82 (7th Cir. 1977).  Since this case was briefed, the Secretary has accepted the cost-benefit approach to noise standard enforcement affirmed by the Ninth Circuit in Castle & Cooke.  See OSHA Instruction CPL 2-2.35A (Nov. 9, 1983) (prescribing new enforcement policies), reprinted in 1 BNA OSHR Reference File 21:8312, 1984 CCH Emp. S&H Guide Developments 8019; 13 BNA OSHR Current Reports 1294 (May 3, 1984).  For these reasons, the Commission's decision in Sun Ship should be reexamined.

IV
Section 1910.95(b)(1) is derived from 41 C.F.R. 50-204.10, a noise standard that was originally promulgated under the Walsh-Healey Government Contracts Act, 41 U.S.C. 35-45 ("the Walsh-Healey Act").  The Walsh-Healey Act requires that contracts with the federal government for materials in amounts over $10,000 provide that "no part of such contract will be performed . . . under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of said contract."  Section 1(e), 41 U.S.C. 35(e).  The Secretary of Labor is authorized to adopt rules and regulations to carry out the statute.   Section 4, 41 U.S.C. 38.  In the event of a breach of the provisions of the Walsh-Healey Act or the rules promulgated under it, the agency involved "shall have the right to cancel [the contract]."  Section 2, 41 U.S.C. 36.  The Walsh-Healey Act also requires that the name of the breaching contractor be placed on a list of persons or firms to which "no contracts shall be awarded . . . until three years have elapsed from the date the Secretary determines such breach to have occurred."  Section 3, 41 U.S.C. 37.

While the Walsh-Healey background of the noise standard does not reflect any regulative or adjudicative history suggesting the intent of its redactors, it is possible to reach some conclusions about what was understood by the word "feasible."  The noise standard was one of a body of regulations governing the relationship between the government as contractor and businessmen who dealt with it.  Costs imposed by Walsh-Healey regulations were reflected in the bids that contractors submitted to contracting government agencies.  In determining whether to bid, and in preparing their bids, these contractors were subject to a variety of constraints requiring basic economic and financial decisions.  If they allocated a great deal of money to reduce noise by engineering controls, they might drive up their bid and fail to secure a contract.  If they did not reduce noise through feasible engineering controls and were the successful bidder, they might be prosecuted under the Walsh-Healey Act's enforcement scheme and be exposed to sanctions, which might strip them of the contract and blacklist them for three years.  Of course, such prospective bidders retained the option of not entering the bid competition if they deemed the constraints to be too burdensome.  Unlike the costs imposed by the prevailing wage, working hours, child and convict labor, and personal protective equipment requirements of the Walsh-Healey Act and standards, the costs imposed by the engineering control requirement would have been difficult to predict, for the noise standard furnished little guidance on where the Labor Department would draw the line between feasibility and infeasibility. Accordingly, it seems reasonable to predicate that government contractors, like all businessmen, would not apply to the word "feasible" the meaning commonly given in dictionaries, i.e., as merely "capable of being done or carried out,"[[5]] but rather would apply to it a sense of practicality and determine not just whether noise reduction could be accomplished but whether it could be done in a cost-effective manner.[[6]]  Government contractors, as well as the contracting agencies, would have understood that employing a dictionary definition of feasible would have been self-defeating, for it would have required noise to be reduced even to the point of depriving the government of contractors or depriving contractors of a reasonable profit.

It is therefore highly unlikely that the government would have intended, or government contractors would have understood, that engineering controls were to be implemented without regard to their benefits.  A more reasonable assumption is that a government contractor would decide whether administrative or engineering controls were "feasible" in the same way he would determine if it were practical and cost-effective to use certain materials for a job on which he was preparing a bid.  He would consider the costs of tools and materials and their marginal utility and strike a balance between them.  Absent any clear indication of "legislative" intent, it is reasonable to conclude that cost-effectiveness was a factor in the determination of feasibility under Walsh-Healey, and remains so as incorporated into the Occupational Safety and Health Act.

To prove a violation, therefore, the Secretary must prove that proposed engineering and administrative controls are both technologically and economically feasible.  As the Ninth Circuit recognized in Castle & Cooke, "realism and common sense should dictate how the Secretary may meet his burden of providing substantial evidence of feasibility."  692 F.2d at 650.  After the Secretary proves that controls are technologically feasible, the burden of producing evidence shifts to the employer, who may raise the issue of economic feasibility and go forward with evidence of the cost of controls and personal protective equipment.  The burden of producing evidence then returns to the Secretary "who must establish that the benefit of the proposed engineering controls justifies their relative cost in comparison to other abatement methods."  Id.  The ultimate burden of persuasion on the feasibility issue nevertheless remains with the Secretary.

Sherwin-Williams established and the judge found that the controls would cost $1,200,000 plus $200,000 per year for lost production and increased maintenance, which amounts to $4,286 per employee plus $714 per employee per year.[[7]]  It was also stipulated that the cost of personal protective equipment was approximately $4,000 per year.  The evidence demonstrates that the earplugs worn by Sherwin-Williams' employees were capable of reducing sound levels below the levels specified in Table G-16. Sherwin-Williams demonstrated that all of its employees were required to wear earplugs or earmuffs and that they were subject to discipline if the controls were not worn.  Dr. Hildyard testified that up to a 30 dBA reduction in noise levels could be achieved if earplugs were properly worn.  The expert testimony elicited by the Secretary questioned the efficacy of earplugs because of employee reluctance to wear the plugs.  Dr. Tobias conceded, however, that reductions to sound levels below 90 decibels could be expected.  The testimony of employees reveals that shortcomings exist in Sherwin-Williams' personal protective equipment program but they do not affect the conclusion that the wearing of earplugs by Sherwin-Williams' employees reduced sound levels experienced by employees within Table G-16 limits.

While engineering controls would significantly reduce noise exposure,[[8]] the Secretary has failed to demonstrate that the benefits that will be achieved by the controls justify the cost of implementing them.  His contention that the cost of controls are feasible here because they are less expensive than those found feasible by the Commission in Carnation would turn the cost-benefit approach to the implementation of noise controls into a rigid formula.  We first note that Carnation did not represent a majority application of the Continental Can cost-benefit test.  Commissioner Cleary did not consider the cost of controls in determining that the controls were feasible.   Chairman Barnako, upon whose opinion the Secretary relies, did not apply a rigid formula in Carnation.  On the contrary, in Carnation he observed that in the two other cases, Continental Can and Castle & Cooke, he had found that the benefits to be gained were outweighed by the costs even though the cost per employee was significantly less than that in the Carnation case. 6 BNA OSHC at 1738 n.19, 1976-77 CCH OSHD at p. 27,624 n.19.  In this case, the cost per employee is even greater than that in Continental Can and Castle & Cooke.   Chairman Barnako also noted that, unlike the other two cases, Carnation involved no annual or continuing costs, and the total cost of compliance was less than $100,000.  6 BNA OSHC at 1738, 1976-77 CCH OSHD at p. 27,624.  Here, the total cost is many times higher and significant continuing costs will be incurred.

I agree with the judge that in this case the Secretary failed to prove the feasibility of controls by a preponderance of the evidence. As the Fifth, Sixth, Seventh and Ninth Circuits have held in numerous decisions, engineering and administrative controls are not feasible within the meaning of section 1910.95(b)(1) if their costs are not justified by their expected benefits.  Sun Ship is overruled. The judge's decision vacating the citation is therefore affirmed.

V
The judge denied a motion by the Secretary to amend the citation to also allege that Sherwin-Williams violated former section 1910.95(b)(3),[[9]] the old hearing conservation standard.  He stated that the evidence did not support a violation and that Sherwin-Williams lacked notice because it might have introduced other experts had it realized that the "value of [its] . . . conservation program was at issue."

The union has urged the Commission to overrule the judge and grant the Secretary's motion to amend the citation.  However, the Secretary has withdrawn this allegation and the motion to amend.  Chairman Rowland and I affirm the judge's disposition denying the motion.  When the Secretary chooses not to amend his complaint to allege a possible violation of the Act, the authorized employee representative may not prosecute a different allegation or compel the Secretary to do so.  See Marshall v. OSHRC (IMC Chemical Group), 635 F.2d 544, 552 (6th Cir. 1980).  Cf. American Bakeries, 84 OSAHRC _/_, 11 BNA OSHC 2024, 1984 CCH OSHD _____ (No. 83-131, 1984); (a union may not object to withdrawal of citation); Copperweld Steel Co., No. 79-2600 (June 29, 1984) (same).

Accordingly,the citation alleging a violation of 29 C.F.R. 1910.95(b)(1) is vacated.  The motion to amend the citation to allege a violation of section 1910.95(b)(3) is denied.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  JUL 20 1984

ROWLAND, Chairman, concurring:

In Sun Ship, Inc., 82 OSAHRC 69/A2, 11 BNA OSHC 1028, 1983 CCH OSHD 26,353 (No. 16118, 1982) (dissenting opinion), I found that section 1910.95(b)(1)'s requirement that "feasible" engineering and administrative controls be used is unenforceable.  I reasoned that the standard lacks ascertainable criteria for its enforcement and that authority was impermissibly delegated to the Commission to decide what the standard means.  I still adhere to that view.  However, unless Commissioners Cleary and Buckley were to conclude that Sun Ship would remain Commission precedent, see Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD 24,555 (No. 76-222, 1980), the parties and the Commission's administrative law judges would have no clear guidance of what principles to apply.  Moreover, as between the test set forth in Sun Ship and the cost-benefit approach adopted by Commissioner Buckley, I believe the latter test represents the more reasoned result. As I stated in Sun Ship, the cost-benefit approach represents a "good faith attempt to give genuine significance to costs of compliance with the noise standard."  11 BNA OSHC at 1042, 1983 CCH OSHD at p. 33,430.  Similarly, in Donovan v. Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD 21,854 (No. 10925, 1977), aff'd, 692 F.2d 641 (9th Cir. 1982), the Ninth Circuit stated:

We view the Commission's [cost-benefit] interpretation of "feasible" as a reasonable reconciliation of the regulation's language and the statute's "reasonably necessary" requirement.

. . . the [cost-benefit] test provides a realistic view of the range of hazards from which employees require protection and the alternate means of providing that protection, and recognizes that the Act does not "require employers to provide absolutely risk-free workplaces whenever it is technologically feasible to do so. . .

Id. at 649.  I therefore join with Commissioner Buckley in overruling the Commission's decision in Sun Ship and adopting the cost-benefit approach as set forth by Commissioner Buckley in his decision.

CLEARY, Commissioner, dissenting:

By its decision the majority virtually eliminates engineering controls from the noise standard.  This is neither consistent with the language and purpose of the Act nor within the Commission's power.

The definition of economic feasibility established in Sun Ship is the proper one:  engineering and administrative controls are economically feasible if they do not threaten the employer's long-term profitability and competitiveness or, in the event of economic threat, do so because the employer has lagged behind its industry in providing noise protection for employees.   Sun Ship, Inc., OSAHRC 69/A2, 11 BNA OSHC 1028, 1983 CCH OSHD 26,353 (No. 16118, 1982).

On this record there can be little question that the Secretary has established the economic feasibility of engineering controls.  The administrative law judge found that engineering controls would cost $1,800,000 over the three-year abatement period suggested by the Secretary, with lost production and maintenance cost thereafter of $200,000 per year.[[1]]  This comes to a start-up cost of $5,000 per employee during the first three years and $714 per employee annually thereafter.  During the relevant fiscal year, 1975, Sherwin-Williams had a net annual income of over twenty-eight million dollars and an increase in working capital of over sixty million dollars.[[2]]

Sun Ship is predicated on a basic rule of statutory construction:  regulations are to be construed consistent with the statutes under which they are promulgated and when terms are not defined in their regulatory context they must be interpreted in accord with underlying Congressional purpose.  United States v. American Trucking Associations, 310 U.S. 534, 542 (1940).  Moreover, unless a different intent is clearly evident, the same statutory terms are to be given the same meaning, Chugach Natives, Inc. v. Doyon Ltd., 588 F.2d 723 (9th Cir. 1979) (and cases cited therein), and regulatory language should be given the same meaning as the language appearing in the statute.  See Baroid Div. of N.L. Industries, Inc. v. OSAHRC, 660 F.2d 439, 447 (10th Cir. 1981), and RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979) (in which the statutory and regulatory uses of "feasible" are viewed as synonymous).  Accordingly, in Sun Ship the Commission looked to evidence of Congressional intent for guidance as to the meaning of feasible noise controls.

The noise standard was promulgated pursuant to section 6(a), 29 U.S.C. 655(a), of the Act, which does not use the word feasible. "Feasible" does, however, appear in section 6(b)(5), 29 U.S.C. 655(b)(5), which empowers the Secretary to promulgate standards for toxic substances and harmful physical agents.  Therefore, the leading case on the question is the Supreme Court decision, American Textile Manufacturer Institute, Inc. v. Donovan, 452 U.S. 490 (1981) ("ATMI").  In ATMI, the Court considered the meaning of feasible as it is used in section 6(b)(5).  The Court concluded that the plain meaning of feasible is "capable of being done," "achievable," and that therefore it cannot be understood to incorporate a cost-benefit test unless that was Congress's intent. For evidence of Congress's intent the Court looked both to Congressional practice generally and to the legislative history of the Occupational Safety and Health Act and concluded that Congress did not think of feasibility in cost-benefit terms.  "When Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute."  452 U.S. at 510.  Moreover, "[t]he legislative history of the Act, while concededly not crystal clear, provides general support for. . . [the conclusion that 'feasible' does not require cost-benefit analysis]." 452 U.S. at 514.

Nowhere is there any indication that Congress contemplated a different balancing by OSHA of the benefits of worker health and safety against the costs of achieving them.  Indeed Congress thought that the financial costs of health and safety problems in the workplace were as large or larger than the financial costs of eliminating these problems.  In its statement of findings and declaration of purpose encompassed in the Act itself, Congress announced that "personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments."  29 U.S.C. 651(a).

452 U.S. at 522-523 (emphasis in original).

Because the noise standard was originally promulgated under the Walsh-Healey Government Contracts Act, 41 U.S.C. 34-35 (the "Walsh-Healy Act") and only later incorporated by the Secretary of Labor into the Occupational Safety and Health Act, the Sun Ship Commission also examined Walsh-Healey's legislative history for evidence that Congress thought of feasibility in terms of cost-benefit analysis.  As conceded in the majority, there is no evidence that the Walsh-Healey Congress intended feasibility to depend on cost-benefit.[[3]]

The majority attaches great significance to the Ninth Circuit's decision in Donovan v. Castle & Cooke Foods, 692 F.2d 641 (9th Cir. 1982), in which the Circuit Court held that ATMI does not require the Commission to abandon the cost benefit approach because ATMI deals with a different section of the Occupational Safety and Health Act than is involved in the noise standard. (ATMI involves section 6(b)(5), 29 U.S.C. 655(b)(5), which empowers the Secretary to engage in substantive rulemaking for toxic substances and harmful physical agents, whereas the noise standard involves section 6(a), 29 U.S.C. 655(a), which directs the Secretary to adopt existing federal standards.)[[4]]  In the first place, the Ninth Circuit began its analysis from a presumption of deference to the Commission's cost-benefit analysis simply because it was then-prevailing precedent.  In the second place, the Court held merely that ATMI did not require abandonment of cost-benefit.  Finally, and most importantly, the fact that there are different types of OSHA standards simply does not bear on the question of the meaning of feasibility.  The Supreme Court has said that the word has a commonly understood meaning which is not contradicted by statute, regulation or legislative history.  Therefore, there is no basis for grafting cost-benefit onto the term, whether the Act provides for one type of standard or a hundred.

Perhaps even more important than the statutory construction aspect of this case is the fact that the majority virtually eliminates engineering controls from the noise standard.  The standard explicitly prefers administrative and engineering controls over personal protective equipment; only to the extent that administrative and engineering controls will not bring noise levels under prescribed levels may an employer rely on personal protective equipment.  One of the majority's principal reasons for holding that engineering controls are economically infeasible for this company is that they would be more expensive than personal protective equipment.  It will be the rare case indeed when acoustical panels, machine enclosures, sound absorptive barriers and similar engineering devices do not cost more than wax earplugs and woolly earmuffs.  The practical effect, therefore, of the majority decision is to strip the noise standard of its primary abatement requirement.[[5]]  This exceeds the Commission's authority.  The Commission has no power to rewrite the Secretary's standards because it prefers a means of abatement other than that chosen by the Secretary.  Budd Co., 1 BNA OSHC 1548, 1973-74 CCH OSHD 17,387 (Nos. 199 & 215, 1974), aff'd, sub nom. Budd Co. v. OSAHRC, 513 F.2d 201 (3d Cir. 1975); see also Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1442, 1977-78 CCH OSHD 21,854, (No. 10925, 1977) (Cleary, dissenting), aff'd, 692 F.2d 641 (9th Cir. 1982).

Although the majority opinion suggests otherwise, it is possible to give effect to the standard's preference for engineering controls over personal protective equipment without ignoring economic reality and driving companies into bankruptcy.  I suggested in Sun Ship a range of economic factors that should be considered before engineering controls are required, including the competitive structure of the industry involved, the competition that the industry faces from other industries or other countries, inflation, the ability of the company to raise capital, its ability to alter employee work schedules and assignments, its other capital investment requirements, energy costs, etc. 11 BNA 1033 at n.12.  Moreover, it would be possible in most cases to alleviate the employer's financial hardship by extending the time required for installation of controls.


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FOOTNOTES:

[[1]] This standard provides:

1910.95 Occupational noise exposure.
* * *
(b)(1) When employees are subjected to sound levels 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


(Footnote omitted.)

[[2]] Sherwin-Williams did not brief the issue of the technological feasibility of engineering controls.  Sherwin-Williams simply notes in its brief that it does not "waive" its position that the Secretary had failed to prove that engineering controls were technologically feasible.

[[3]] Sherwin-Williams apparently concedes that the judge's last two figures were in error, and that they should have been $200,000 and $714 respectively.

[[4]] Section 6(b)(5) provides in pertinent part:

The Secretary in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity. . . .

[[5]] Webster's New Collegiate Dictionary 415 (1979).

[[6]] An example of this sense of practicality is illustrated by the reasoning in Southland Mfg. Corp., 75-1 CCH Cont. App. Dec. 10,994 (AS No. 16830, 1974), which resolved a contract dispute under the Walsh-Healey Act.  There, the government claimed that the only issue in determining whether machinery was reasonably capable of being converted to another use was whether it could be physically so converted.  The claim was rejected because the government's approach left no room for considering whether conversion was "economically feasible."  The government's argument was characterized as unrealistic because all factors, particularly the cost of conversion, should be considered in determining whether it was feasible to convert machinery.  Id. at p. 52,357.

[[7]] The judge's rejection of the Secretary's contention that the controls would not affect production or require additional maintenance is supported by the evidence.  These are the types of additional costs that must be considered in determining whether controls are economically feasible.  Continental Can, 4 BNA OSHC at 1548, 1976-77 CCH OSHD at p. 25,257.

[[8]] Although the Secretary's expert Pelton testified that the controls would reduce sound exposure below Table G-16 levels, the judge found it unnecessary to make specific findings on the reductions that would be achieved because he decided that, even if the reduction in sound was not as great as the Secretary's expert believed, the reduction would still be significant.  The parties do not take issue with this determination.  I reserve judgment on whether the Secretary can establish a prima facie case of technological feasibility without demonstrating that engineering controls will reduce sound exposure within Table G-16 levels.  See Continental Can, 4 BNA at 1545 n.13 and 1549 n.18, 1976-77 CCH OSHD at pp. 25,255 n.13 and 25,258 n.18 (concurring opinion).

[[9]] 1910.95 Occupational noise exposure.
* * *
[(b)](3) In all cases where the sound levels exceed the values shown in [Table G-16] a continuing, effective hearing conservation program shall be administered.

[[1]] The Secretary disputes the judge's cost findings and contends that the actual costs would be less, particularly the cost of lost production and maintenance.  However, inasmuch as I find Sherwin-Williams well able to absorb the costs estimated by the administrative law judge, I will not decide the issue.

[[2]] The majority concedes that even under Sherwin-Williams' estimates, which are far lower than the Secretary's, the proposed engineering controls would achieve significant noise reductions and are technologically feasible.

[[3]] The Sun Ship Commission made no "reasonable assumptions" of what government contractors consider cost-effective.   The Supreme court has said that a regulatory word is to be given its dictionary meaning unless Congress intends otherwise.  The ruminations of a mythical government contractor cannot substitute for the rule of law.

[[4]] Section 6(b)(5) provides in pertinent part:

The Secretary in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity. . . .

Section 6(a) provides in pertinent part:

The Secretary shall. . .by rule promulgated as occupational safety or health standard. . .any established Federal standard. . . .

See also 4(b)(2), 29 U.S.C. 653(b)(2) which provides in pertinent part:

Standards promulgated under the Walsh-Healey Act. . .and in effect on or after the date of this Act shall be deemed to be occupational safety and health standards issued under this Act.

It would not be too much to say that by section 4(b)(2) Congress specifically ratified the preference for noise control by engineering methods in the Walsh-Healey noise standard.

[[5]] The preference for engineering controls is a wise one.  Excessive noise can have adverse effects other than hearing loss, including harmful changes in cardiovascular, endocrine and neurologic functions.  See generally Criteria Document at IV 10-V 16, of which I would take official notice.  Complaints of fatigue, irritability, and social conflict as a result of exposure to excessive noise have been documented.  A consequent reduction in job performance also has been recorded.  See generally Criteria Document at IV 9-14.  And employees testified in this case that inability to hear over the din made it difficult for them to hear work orders, to monitor the operation of machines, and to hear and respond to safety warnings or dangerous machine breakdowns.

Moreover, earplugs and muffs have significant limitations.  They are subject to employee resistance because they are uncomfortable.   Not all employees can benefit from them.  The Secretary put on expert testimony that noise reduction achieved by earplugs in actual use is less than half the attenuation achieved in laboratory tests.  This has been recently borne out by a NIOSH-CDC study to the same effect.  Hearing Protectors Field Measurement, Morbidity and Mortality Weekly Report, 607 (Nov. 19, 1982).