SECRETARY OF LABOR,

Complainant,

v.

HARMONY BLUE GRANITE CO., INC.,
Respondent.

OSHRC Docket No. 14189

DECISION

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

BY THE COMMISSION:
As a result of a follow-up inspection of the tombstone and monument production facility of Harmony Blue Granite Co., Inc. ("Harmony") by representatives of the Secretary of Labor ("the Secretary"), Harmony was issued a notification of failure to correct a violation of the noise standard at 29 C.F.R. 1910.95[[1/]] in the hand blasting area and a citation for noncompliance with 29 C.F.R. 1910.1000[[2/]] for failure to implement feasible administrative or engineering controls to reduce the excessive employee exposure to silica dust in the steel and stun room.[[3/]]   Administrative Law Judge John S. Patton ruled that the Secretary had proved that Harmony's employee in the hand blasting area was exposed to noise exceeding the maximum level permissible under section 1910.95.  He further concluded that the Secretary had established that Harmony had failed to implement all feasible measures to reduce employee exposure to noise, and he therefore affirmed the notification for failure to abate.   With regard to the steel and stun room, it was undisputed that there was employee exposure to silica dust in excess of the permissible limit set in section 1910.1000.   Judge Patton concluded that the Secretary had shown that there was a feasible method available for reducing employee exposure to silica dust in that room.  The judge's decision is before the Commission pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  At issue on review is whether the judge erred in the above conclusions.

Having reviewed the record and considered the arguments of the parties, we agree with Judge Patton's conclusion that the Secretary established that Harmony's employee in the hand blasting area was exposed to noise in excess of that permitted by the cited standard.  Judge Patton also concluded that "feasible" methods were available to reduce the noise level in Harmony's facility.  In our recent decision in Sun Ship, Inc., 82 OSAHRC ___/___, 11 BNA OSHC 1028, 1983 CCH OSHD 26,353 (No. 16118, 1982), appeal filed, No. 83-3081 (3d Cir. Feb. 14, 1983), we discussed the significance of economic factors within the meaning of the term "feasible" under section 1910.95(b)(1).  In accordance with the decision of the U.S. Supreme Court in American Textile Manufacturers Institute, Inc. v. Donovan, 101 S.Ct. 2478 (1981) ("ATMI"), the Commission concluded that "feasible" in section 1910.95(b)(1) means "achievable."  11 BNA OSHC at 1032, 1983 CCH OSHD at pp. 33,420-21.  We therefore overruled the cost-benefit test for interpreting the standard set forth in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD 21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. April 26, 1977), a decision issued after the hearing in the instant case but before Judge Patton's decision, and we substituted a test for feasibility consistent with the Court's decision in ATMI.

In view of this intervening change in law, we set aside the judge's decision with respect to the alleged failure to abate violation.  We remand this case for further proceedings regarding the feasibility of abatement, including evidentiary submissions, so that the interrelated issues of technological and economic feasibility can be reconsidered in light of the test of feasibility established by Sun Ship, Inc.

With regard to the alleged violation of section 1910.1000, the parties dispute whether the Secretary established the availability of feasible means of reducing employee exposure to silica dust.  Harmony contends that cost-benefit analysis must be used to determine the feasibility of controls under section 1910.1000(e).  We reject that argument.   The requirement for feasible engineering and administrative controls in section 1910.1000(e) parallels the requirement in section 1910.95(b).  Based on our reasoning in Sun Ship, Inc., we conclude that "feasible" under section 1910.1000(e) means "achievable" and does not require cost-benefit analysis.

Harmony also contends that administrative or engineering controls are only feasible within the meaning of section 1910.1000(e) if they are capable of reducing employee exposure to air contaminants to within permissible limits.  In Harmony's view, personal protective equipment is the only protection the standard requires when administrative or engineering controls cannot achieve the prescribed limits.  We reject this contention as well.  In Sun Ship, Inc., we recently reaffirmed the Commission's holding in Continental Can Co., that, because section 1910.95(b)(1) (see note 1 supra) expressly requires that administrative or engineering controls be used in preference to personal protective equipment, controls that achieve a significant reduction in the noise level will be considered technologically feasible even if they do not result in absolute compliance with the limits set in the noise standard.  11 BNA OSHC at 1033 n.11, 1983 CCH OSHD at p. 33,422 n.11.  In GAF Corp., 81 OSAHRC 29/A2, 9 BNA OSHC 1451, 1981 CCH OSHD 25,281 (No. 77-1811, 1981), appeal withdrawn, No. 81-4091 (2d Cir. Sept. 3, 1981) the Commission stated:

Section 1910.1000(e) contemplates that exposure to excessive levels of toxic substances will be abated by engineering or administrative controls and that personal protective equipment will be used only in the event that such controls are not feasible or fail to reduce levels to the permissible limit.  It is the Secretary's burden to establish that controls are technologically and economically feasible.  A control is technologically feasible if it can be adapted to the employer's operation and is capable of producing a significant reduction in exposure to the particular toxic substance, in this case silver compounds.  See Samson Paper Bag Co., 80 OSAHRC, 8 BNA OSHC 1515, 1980 CCH OSHD 24,555 (No. 76-222, 1980).

9 BNA OSHC at 1455, 1981 CCH OSHD 25,281 at p. 31,244.  Accordingly, section 1910.1000(e) has been interpreted by the Commission to be consistent with the Commission's interpretation of similar language in section 1910.95(b)(1).  Those controls that significantly reduce the level of an air contaminant will be considered technologically feasible even if they do not reduce the level to the limit set in the standard.  Personal protective equipment would thus be required to supplement the controls, but not replace them.

In light of the new test for feasibility announced in Sun Ship, Inc., we set aside that part of Judge Patton's decision in which he affirmed the citation for excessive silica dust in the steel and stun room.  We remand this case for further proceedings on this issue, including evidentiary submissions, so that the interrelated issues of technological and economic feasibility can be reevaluated under the new test.[[4/]]

Accordingly, Judge Patton's decision is set aside with respect to his rulings that feasible means were available to reduce the excessive employee exposure to noise in the hand blasting area and to silica dust in the steel and stun room.  This case is remanded to the Chief Administrative Law Judge [[5/]] for further proceedings consistent with this opinion.

IT IS SO ORDERED.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  MAR 24 1983


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FOOTNOTES:

[[1/]] The standard provides in pertinent part:

1910.95 Occupational noise exposure.
(b)(1) 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 lists the permissible sound levels for various daily exposure times.

[[2/]] The standard reads in pertinent part:

1910.1000 Air contaminants.
* * *
(c) Table Z-3: An employee's exposure to any material listed in table Z-3, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limit given for that material in the table.
* * *
(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible.   When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section.

Table Z-3 lists the 8-hour time weighted average limits for mineral dusts, including silica.

[[3/]] The citation also alleged that Harmony had failed to comply with 1910.1000 in another room.  The judge vacated that part of the citation, and it is not before us on review.

[[4/]] Commissioner Cleary notes that during the hearing on this case the Secretary moved for the production of all the financial records of Harmony.   Harmony's counsel responded that Harmony was not claiming, nor would it later claim, financial inability to implement the abatement methods suggested by the Secretary.   Judge Patton subsequently denied the Secretary's motion. Commissioner Cleary considers Harmony's response to the motion to constitute a waiver of any claim that the suggested controls were not economically feasible.  He therefore concludes that there is sufficient evidence in the record to consider the merits of the issues on review.   However, in order to form a majority disposition in this case, he joins in ordering a remand.

[[5/]] Judge Patton has retired from the Commission.