WEYERHAEUSER COMPANY

OSHRC Docket Nos. 2116; 2250 (consolidated)

Occupational Safety and Health Review Commission

August 15, 1974

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Before MORAN, Chairman, VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

  CLEARY, COMMISSIONER: On October 5, 1973, Judge Joseph L. Chalk issued his decision and order in the instant case vacating, among other things, item no. 4 of the Secretary's citation.   The Secretary proposed no penalty for this alleged violation.

On November 5, 1973, I directed that the decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. §   651 et seq., hereinafter referred to as "the Act")

Review was directed on the following issue: Did the Judge err in holding that the Secretary failed to establish employee workday exposure to sound levels for time durations in excess of those listed in Table G-16 of 29 CFR §   1910.95?

Upon review of the entire record we affirm the Judge's decision to the extent consistent with our discussion.

The respondent is a corporation organized under the laws of the State of Washington, with a principal office located at Tacoma, Washington.   It does business in interstate commerce.   The workplace involved is the respondent's corrugated fiberboard plant at Westbrook, Maine.

On December 15, 1972,   [*2]   Mr. John Knies, an industrial hygienist working for the Secretary as an inspector visited the workplace, and conducted two tests for   noise. Of the latter test, little appears in the record, n1 and discussion will be confined to the first test.   Mr. Knies took readings near the corrugator single facer, a part of a larger machine, which manufactures the product.   Among the employees we are concerned with here is Mr. Paul Demers, the "doublebacker," who works at the single facer.

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n1 Of this the Secretary has suggested no inferences and we draw none.

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As a result of the test, the Secretary issued a citation to respondent alleging, among other things, a violation of the standard.

A brief discussion of the standard may be useful.   It seems clear that 29 CFR §   1910.95(b)(1) and Table G-16 n2 contemplate that employee exposure to difference noise levels require that Table G-16's formula of "cumulating" be used. n3

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n2

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

 

n3 When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effect of each.   If the sum of the following fractions: C1/T1 + C2/T2 + . . .   Cn/Tn exceeds unity, then, the mixed exposure should be considered to exceed the limit value.   Cn indicates the total time of exposure at a specified noise level, and Tn indicates the total time of exposure permitted at that level . . .

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An employee's exposure to various noise levels during a shift may be violative of section 1910.95(a) even though during each interval of time during the shift his   exposure did not exceed Table G-16's value.   For example, suppose exposure of employees to various noise levels were as follows:

Hours of Actual

Sound Level dBA

Permitted Duration

Exposure*

Slow Response

of Exposure*

1/2

110

1/2

1/2

105

1

 6

 90

8

 1

 95

4

 8 Total

 

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* Note that in none of the intervals above does a violation occur during that interval.

Using the cumulation formula of Table G-16, we obtain:

1/2 / 1/2 + 1/2 / 1 + 6 / 8 + 1 / 4 - 1 + 1 / 2 + 3 / 4 + 1 / 4 = 2 1/2

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Since two and one-half is greater than unity (one), an eight hour violation has occurred.   Thus, even where each interval of exposure is less than the permissible amount, cumulative exposure may be violative.

Cumulation, however, cannot relieve an employer by compensating [*4]   for periods of violations with periods of compliance.   Thus, suppose an employee was wrongfully exposed to 115 dBA for thirty minutes, but for the rest of the eight hour shift he heard only 90 dBA.   Using the formula, there is still a violation:

1/2 / 1/4 + 7 1/2 / 8 = 2 15/16

It is thus clear that the Secretary must show employee exposure during: (1) eight hours to more than 90 dBA [cumulation is properly applicable to show this]; or (2) any interval listed in Table G-16 to impermissible decibel levels, regardless of whether exposure was continuous or sporadic, and regardless of whether preceding or subsequent exposures where 90   dBA or below [cumulation is also properly applicable here].

Two questions of fact emerge: First, was the inspector's reading accurate; and second, was the duration of the reading either: (1) actually as long as the period specified in Table G-16 [not the case here]; or (2) long enough, in light of the circumstances, to infer that the reading taken was a representative sample of noise level for the period cited in the complaint, whether or not the actual period of exposure was continuous or sporadic.

In this case the inspector's readings were [*5]   taken over a period not exceeding 20 minutes. His readings during this period lasted for 15 or 20 minutes. Inspector Knies' results indicated decibel readings between 97 and 102 while following employee Demers about the workplace with the meter sometimes held close to the ear of Mr. Demers.   Employee Demers was thus actually exposed to at least 97 dBA during these 15 minutes. We must determine whether it is reasonable to infer that Mr. Demers was exposed to 97 dBA for over three hours, and if so, whether this inference is strong enough in light of the record as a whole to permit the Commission to find that there is a probability that these noise levels were sustained in excess n4 of three hours.

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n4 The Secretary in his brief [Secretary's Brief at 16, note 6] incorrectly asserts that Judge Chalk misinterpreted the standard.   Section 1910.95(a) requires protection "when the sound levels exceed those shown in Table G-16 . . ." [Emphasis added].   Thus, exposure to more than 97 dBA for three hours or to 97 dBA in excess of three hours is required for controls to be provided.

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Inspector Knies conceded in his testimony, that readings of 97 dBA alone are insufficient to sustain a finding of a violation n5. Strong evidence, however, that   the readings were representative samples may be sufficient to prove duration of the noise level.

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n5 Judge Chalk misconstrued this concession in his opinion (J.D. at 7).   Mr. Knies was answering a question on cross-examination in the abstract concerning the readings without reference to the actual circumstances of the case.   Judge Chalk apparently believed that Mr. Knies admitted that his actual readings were insufficient no matter what the circumstances.

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The respondent in his brief contends that the sound actually measured fluctuated and thus the readings taken were not accurate.   What is clear, however, is that while the readings did fluctuate, their lowest point was 97 dBA, and the fluctuations were between the 102 and 97 dBA levels.   The respondent further contends that since the   [*7]   inspector did not calculate the precise cumulative effect of the fluctuating noise, his readings were insufficient.   This is not so.   So long as the lowest reading is used and duration of time is sufficient, higher readings perforce confirm that the standard was violated.

The evidence relied upon by the Secretary to show that the employees were exposed to 97 dBA for over three hours consists largely of Mr. Demers' testimony that at the time of the inspector's readings the single-facer was running its "normal course." That employee testified that he was working in a normal fashion on the day of the inspection; that the noise fluctuation was normal; and that, including "down time" (periods when the single-facer was inoperative or operating at minimal speed), the machine ran for six non-continuous hours.

On re-cross examination by respondent's counsel, however, Mr. Demers defined what he meant by "normal course."

Q.   Would it be correct to say that the word "normal" is misplace,d that you have a wide variety of noises and operating speeds over the course of a work shift?

A.   Yes.

  Q.   So there might be some fluctuations which the inspector couldn't possibly have tested even [*8]   if he had been with you 20 minutes on one day?

A.   Right.

[Tr. 1-45, 46].

The Secretary relies on the statement of plant officials to Inspector Knies that the "work situation" was "normal." But it is clear from the testimony of the respondent's plant manager, Mr. Robert Parent, that changes in noise level were normal as well.   Mr. Knies' testimony on cross-examination further shows that he did not know what decibel level correspondent to "normal."

Q.   So you could not then trace the entire operational conditions of that work shift, is that not correct?

A.   Yes.

Q.   Nor could you relate that to your noise test?

A.   Only by the statement of management and the employee that this was a normal work situation which continued for at least six hours a day.

Q.   Did anyone ever tell you that the normal work situation or eight hours a day is 97 to 102 decibels?

A.   No, sir.

[Tr. 1-112, 113].

Thus, while it is clear that employees were exposed to some level of noise, it is not sufficiently clear that the sample Mr. Knies took was representative of actual employee exposure either in excess of three hours at 97 dBA, or 1-1/2 hours at 102 dBA.

Southern Indiana Gas & Electric   [*9]     Co., No. 456 (March 5, 1974), is distinguishable on its facts, for in that case the evidence that the sample was representative was far stronger than here.   Not only did an inspector take sound level readings, but the respondent's manager acknowledged facts constituting a violation of the standard ( Ibid, at 4).   Here, in contrast, evidence of comparable strength does not appear in the record.

  The Secretary would have us give "great deference" to the interpretation of 29 CFR §   1910.95 by Mr. Knies, the Secretary's agent.   The problem here, however, is not one of interpretation.   The requirements of the standard are clear, and no real dispute about their meaning exists.   What is disputed is the factual question of whether the sample taken was representative.

We do not wish to impose great financial or logistical burdens on the Secretary in the enforcement of the Act.   We neither suggest nor hold that representative samples may not suffice.   But we do hold in this close case that the evidence of representativeness of the sample involved is not preponderant.

We adopt the Judge's decision only to the extent that the issues therein are discussed here.   To the extent it [*10]   is consistent with our discussion, it is affirmed.

SO ORDERED.  

CONCURBY: MORAN; VAN NAMEE

CONCUR:

MORAN, CHAIRMAN, concurring: I concur in the disposition that no violation has occurred as charged.   The reasons for this disposition given by Judge Chalk in his decision are sound and I agree with them.

VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition of this case for the reason given by Judge Chalk, i.e., Complainant has not carried his burden of proof.   I specifically do not join in my colleague's discussion regarding his interpretation of 29 C.F.R. 1910.95.

[The Judge's decision referred to herein follows]

CHALK, JUDGE, OSAHRC: Respondent's Westbrook, Maine corrugated fiberboard manufacturing plant was separately inspected by two Department of Labor compliance officers on December 15, 1972.   As a result, two separate Citations for nonserious violations of Section 5(a)(2) of the Occupational Safety and Health Act of   1970 were issued against Respondent, one on December 21, 1972 (Docket No. 2116), the other on January 22, 1973 (Docket No. 2250). n1 On January 22, 1973.   Respondent filed a Notice of Contest in Docket Number 2116 as to one item only.   On February 12, 1973,   [*11]   Respondent filed a Notice of Contest in Docket Number 2250 as to two items only.   The pertinent data as to the contested charges, as amended, are as follows:

DOCKET NO. 2116

Item No. -- Standard -- Description of Violation -- Proposed Penalty

4 -- 29 CFR 1910.95(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 euqipment shall be provided and used to reduce sound levels within the levels of the table. -- Respondent failed to utilize feasible administrative or engineering controls where employees were subjected to sound exceeding those listed in Table G-16 of 29 CFR 1910.95(b)(1).   (Locations: Flexographic Printer -- Main Building; Corrugator Single Facer -- Main Building; Corrugation Take-Off -- Main Building.) n2

TABLE G-16 -- Permissible Noise Exposure . . .

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

 

  DOCKET NO. 2250

3 -- 29 CFR 1910.176(b) Secure storage.   Storage of material [*12]   shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse. -- Respondent failed to stack, block, interlock and limit in height stored materials so that they were stable and secure against sliding or collapse.   (Location -- Main Shop) -- $40.00

4 -- 29 CFR 1910.212(a)(1) Types of guarding.   One or more methods or machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.   Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc. -- Respondent failed to guard all machines to protect the operator and other employees from hazards (Location -- Main Shop) n3 -- None

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n1 Pursuant to Respondent's motion, the Commission, on March 26, 1973, ordered these cases consolidated (Rule 9).

n2 At the hearing, Complainant moved to amend the Complaint by deleting references to the Flexographic printer and the corrugator take-off because of a lack of sufficient evidence to proceed thereon (Tr. 11-12, Vol I).   The motion was granted; hence the proceedings were limited to the corrugator single facer.

n3 At my direction prior to the hearing, Complainant forwarded to Respondent on June 14, 1973 the following list of machines involved in the charge: Buffalo drill press, C flute unit, B flute unit, double back, caustic tank, 2 starch pumps, 2 air compressors, 2 slitter machines (Nos. 4210, 4220), machine (#3610), glue mixing barrel, machine (#5310), and glue pit (#3102).   This action, in effect, served to amend the Complaint.

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It was stipulated, inter alia, that the inspection of the Westbrook plant was conducted on December 15, 1972 by two Department of Labor compliance officers, one of whom was assisted by a safety inspector from the state of Maine, that Respondent is and was engaged in a business affecting commerce in that it conducted its business in more than one state, that the dollar volume of Respondent at the Westbrook plant during 1972 was $5,000,000.00 and that its corporate volume during   1972 was $1,600,000,000.00, that Respondent had no prior history of violations of the Act at the Westbrook plant, and that the corrugator single facer was operated on the day of the inspection approximately five hours during the particular workshift. n4

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n4 Respondent specifically declined to stipulate that the corrugator single facer ran continuously during the five hour period or that it ran at any constant speed. Additionally, the parties were unable to determine, and thus stipulate, whether the duration of the workshift was 8, 9, or 10 hours.

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DOCKET NUMBER 2116

From the testimony of witnesses presented by both parties, there appears to be no dispute that the corrugator in question, of which the single facer was one of seven integral parts, was about 250 feet long, that it manufactured corrugated fiberboard for what is commonly referred to as cardboard boxes, that it was attended by two employees, an operator and an assistant referred to as a "doublebacker," that these employees were required to wear personal protective ear equipment at the time of the inspection, and that the corrugator was a noise producing agent when in operation.

The Secretary presented two witnesses in support of this charge, Mr. Paul Demers, the "doublebacker," and Mr. John Knies, an industrial hygienist, the compliance officer.   From the testimony of each, as well as that of several of Respondent's witnesses, it appears that Mr. Knies, using a standard sound level meter, took readings of the noise level in the area of the corrugator, while it was operating, for a period of about ten to fifteen minutes. These readings were taken close to the ears of the two employees [*15]   operating the corrugator as they moved in and about the area of the   machine performing their usual duties.   Mr. Knies apparently returned to the corrugator later in the day to test for carbon monoxide, at which time he took several more noise readings with the meter for a shorter period of time; however, little more concerning this later testing is revealed by the evidence.

Mr. Demers testified that the noise level created by the corrugator when in operation varied or fluctuated "at least 20 or 25 times" every day according to the different speeds at which it was operated for different orders (Tr. 23, Vol. I).   Also, its noise level was considerably less when it was slowed down or sometimes stopped to splice in another roll of paper or stopped to change a roll of paper to a different size or grade.   The size and grade of paper varied according to the particular order and a change of rolls might occur twenty-five or thirty times during a normal workday. Each splice required from two to three minutes and a roll change required about five minutes. When the paper broke in the corrugator, the corrugator must be shut down from one half hour to an hour to correct the situation.   [*16]   Mr. Demers was unable to estimate the speed at which the corrugator was operated at the time of the inspection, or the order being worked on, or the size of the roll; however, he stated that during an eight hour shift, the corrugator might be running "off and on" for six hours, but not "at full power," for it is not operated at such power for all orders (Tr. 41, 42, Vol. I).   It was "normal" for the noise level created by the corrugator to fluctuate.   (Tr. 43, Vol I).   He thought, however, that the use of the word "normal" would be "misplaced" when referring to an average or usual workday, because of the "wide variety of noises and operating speeds over the course of a workshift" (Tr. 45, 46, Vol I).   Machines other than the corrugator also contributed to the noise level; and these machines, too, were "off and on" (Tr. 49, Vol I).

  Mr. Knies described the building where the corrugator was located as a "very large open building, larger possibly than a football field," with no permanent partitions "of any type in the area" (Tr. 67, Vol I).   The readings he obtained by following the two employees ranged between 97 and 102 decibels; however, this five point differential resulted [*17]   from the movement of the two employers about the area of the machine performing their duties, as the machine was operated at a constant speed during the ten or fifteen minutes that he was testing.   Because "management and the employee" had informed him that "this was a normal work situation which continued for at least six hours a day," he determined that his test results indicated exposure of the employees to sound levels in excess of that prescribed by the standard (Tr. 112, 139, Vol. I).   Specifically, he believed that his tests indicated an exposure at the 97 decibel level that "lasted in excess of three hours and possibly less than that," n5 although no one told him that the "normal work situation" for an eight hour day involved sound levels ranging from 97 to 102 decibels (Tr. 113, 119, Vol I).   Regarding the impression he gained from what was said about a normal workday, Mr. Knies testified.

A.   Well, inasmuch as this was generally a continuous, repetitive type operation, this indicated to me that this was more or less the noise level that the individuals were exposed to during their normal work time (Tr. 74, 75, Vol I).

While he admitted that noise levels in industrial plants [*18]   such as Respondent's often were of a "fluctuating type," he believed that "some machines . . . operate at a very steady state" (Tr. 115, Vol I).   His further cross-examination on this question reveals the following:

  Q.   If [the machines] had different speeds hour to hour the noise source level of the machine that is the source of the noise could fluctuate from hour to hour?

A.   Undoubtedly.

Q.   Did you make any investigation as to whether or not that was the case at Westbrook?

A.   Not in the length of time I was there, no, sir.

Q.   You didn't test for three hours?

A.   No, sir.   (Tr. 116, 119, Vol I).

He classified his testing as "a ten-minute observation under certain operating conditions" and admitted that a "single reading" of 97 decibels would not "tell . . . whether or not there [was] excess exposure under the standard" (Tr. 117, 127, Vol I).   He also admitted that he had never seen a corrugator before and was totally unfamiliar with its operation.

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n5 Mr. Knies apparently overlooked the fact that the standard prescribes an exposure in excess of three hours at the 97 decibel level during a workday before controls are required.

  [*19]  

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In discussing what a normal workday constitutes with respect to the operation of the corrugator and the varying speeds at which it is operated, the questioning of Respondent's plant manager, one of Respondent's witnesses, reveals the following:

Q.   Do you have any opinion as to what normal is as you manage the plant?

A.   Yes, I have some opinions on what normal is.   As I stated before, we manufacture boxes to customer specifications and orders, only when the orders are placed.   An example might be that if we received an order from X and we received an order from Y, we would most likely trim these two orders together on the corrugator at one time.   The next time that we received an order from these customers or we might only receive an order from one customer, so rather than run X and Y together on that machine, we might be running X and Z.   Consequently, a whole new set of circumstances.   We have different grades of paper, different sizes of paper, different paper combinations, different customers, different adhesives, different speeds that all of these combinations must be run at.   So when you say [*20]   to me "What is normal?" this is normal.   Change is normal.   Putting any of these combinations together and running them, that's part of our daily routine.   This is normal.

  Q.   So you have a constant changing of paper on the machine for different customer orders, is that correct?

A.   That is correct.

Q.   Do any of the factors that you have just mentioned to your knowledge change the noise level when you change running the machine for the different customer orders?

A.   Yes, they do.

Q.   How would they so affect the noise level?

A.   For example, a roll width, let's say to run a 78-inch roll would be a different noise level then running a 60-inch roll. less metal-to-metal contact.   More paper in the machine, more drag on the machine, that would be a different noise level. Different paper grades running, heavy weight paper as opposed to running a light weight paper would be a different noise level. Putting two together, roll widths and grades of paper.   We also have different speeds that this can be run at.   Going back to the curing process of the paper, we cannot run a heavy test board as fast as you can run a light test board.   The speeds are different (Tr. 27-29, Vol.   [*21]   II).

The plant manager further stated that just before Mr. Knies produced his meter and started his tests, the corrugator had been slowed down to splice in a new roll of paper, and that Mr. Knies started taking his readings after the corrugator was back up to an operating speed. The plant manager also stated that the single facer part of the corrugator had been completely replaced in May of 1973, about five months after the inspection, but that the new part had been planned and ordered prior to the inspection.

Respondent's plant production manager another of Respondent's witnesses, testified that the noise generated by the corrugator varied from "minute to minute," that it produced "high noise and low noise," and that he and his subordinates had taken numerous tests with a sound meter in the area of the corrugator since the date of the inspection (Tr. 79, Vol II).   Some of these tests were taken every two minutes over a period of three to four hours, and the lowest reading was 68 decibels, whereas the high was 102 decibels (Ex.   R-3).   The low readings probably were obtained either when the corrugator employee being tracked retired to a quieter area, such as the restroom,   [*22]   or when the corrugator was stopped.   The production manager explained the fluctuation of the noise level generated by the corrugator as follows:

Along with the different types or widths of paper you are running and the speed you are running and the product coming out the other end of the machine, the background noises existing or contributing to the noise, the movement of employees through the range of noise areas, cause all kinds of fluctuations. (Tr. 91, Vol II).

While there was extensive evidence presented by both parties regarding the feasibility of administrative or engineering controls to reduce the noise levels generated by the corrugator, the result I reach makes it unnecessary to summarize that evidence. n6

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n6 It is of interest to note, however, in an article published by the Secretary in his September 1973 publication of Job Safety and Health (Vol 1, No. 10), what appears to be inconsistent action in dealing with the same type of corrugator machine owned by a different corrugated fiberboard manufacturer on the west coast.   The article portrays the use, apparently with the Secretary's approval, of personal protective ear equipment by employees operating the corrugator while the employer experimented with devices to determine what, if any, engineering controls were feasible. In this case, such protective personal equipment was required by Respondent and used by the employees; and Respondent, through his membership in an association of numerous corrugated box manufacturers, literally had a whole battery of experts working solely on the noise problem created by the corrugator. While the compliance officer in this case apparently was sincere in his belief that some sort of engineering controls were feasible, he candidly admitted he had never seen a corrugator before and was totally unfamiliar with its operation.   He also stated his belief that administrative controls were not feasible.

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29 CFR 1910.95(b)(1) requires the utilization of feasible administrative or engineering controls when   sound levels to which employees are exposed during the course of a workday exceed those listed in Table G-16.   That standard also requires the use of personal protective equipment provided by the employer, when such controls have been implemented but have failed to reduce the sound level to acceptable limits.   Although not expressly provided in the standard, it is inferrable therefrom that the use of personal protective equipment is required when administrative or engineering controls are required but are not feasible.

Table G-16, in turn, lists permissible exposure times at specified sound levels to which employees can be exposed during a workday, without the need for either controls or personal protective equipment.   Thus, in accordance with this table, an employee may be exposed in a given workday to sound levels of 97 or 102 decibels, so long as the exposures do not exceed three hours, and one and one-half hours, respectively, without the need for the employer to comply with the standard.   [*24]   Accordingly, the standard does not become operative until those limits are exceeded.

The Secretary's burden of proof in this type of charge is both clear and exacting -- he must, as a condition precedent, establish an employee workday exposure to sound levels in excess of those listed in the table, before he can even approach the question of the employer's responsibility to reduce sound levels to acceptable ones through the use of administrative or engineering controls.   It is in this respect that the Secretary's case in this instance is totally deficient, a deficiency, moreover, that is readily apparent from the lips of the Secretary's own two witnesses, Mr. Demers and Mr. Knies.

Mr. Demers testified that it was "normal" for the speed of the corrugator to fluctuate throughout the workday, that the noise level increased or decreased in   direct relationship to such speed, that such fluctuation in speed was governed by any one or more of a number of factors, such as the size or grade of paper or the particular order being filled, that slow downs or stoppages of the corrugator occurred frequently on a daily basis, and that he could not give an estimate regarding any of these [*25]   factors bearing on speeds, slow downs, stoppages, or noise levels for any specific time or workday or even the period of time when Mr. Knies conducted his tests.   In sum, Mr. Demers testimony adds up to unknown speeds, unknown slow downs, unknown stoppages, and thus unknown sound levels for any specific period of time during any work period, past, present or future.   Mr. Knies' testimony, on the other hand, clearly reveals that he projected his ten or fifteen minute test results over a period of about three hours, to arrive at the conclusion that a violation occurred, and that his projection was predicated upon his apparent misunderstanding that it was normal for the corrugator to be operated at a constant speed, specifically the speed at which it was being operated at the time of his testing. n7 In fact, Mr. Knies candidly admitted that his projection was made without any consideration of the possibility of fluctuating speed that would, in his opinion, cause the noise level to fluctuate.   In addition, Mr. Knies may well have predicated the Citation on a three hour exposure at the 97 decibel level, an exposure allowable by the Table without the need for controls or personal protective [*26]   equipment.

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n7 The test results themselves further complicate the projection process because of the fluctuating range between 97 and 102 decibels.

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Little more need be said about the deficiency in the Secretary's case other than to note the obvious fact that Respondent's witnesses confirmed the speed-noise fluctuation aspect of the corrugator's normal   operation, even in greater detail.   Accordingly, I conclude that the results of Mr. Knies short testing period cannot be used as a yardstick to accurately project sound levels for any other particular period of time.   Alternatively, I conclude that Mr. Knies may have cited Respondent for the violation on the basis of a three hour exposure at the 97 decibel level, an exposure that does not invoke the controls requirement of the standard.   In either case, the Secretary has not as a matter of law sustained his burden of proving that Respondent was in violation of 29 CFR 1910.95(b)(1), and item 4 of the Citation must be vacated.

DOCKET NO. 2250

Storage Charge [*27]  

Mr. Silvio Maglio, a Department of Labor compliance officer, was accompanied on his inspection of Respondent's Westbrook, Maine plant by Mr. James Oldroyd, a State of Maine safety inspector. In three or four areas throughout the plant, Mr. Maglio observed stored corrugated cartons that were not stacked, blocked, interlocked and limited in height so as to be stable and secure against sliding or collapse (Exs. C-2, C-3, C-4).   One stack was as high as twenty feet.   Employees were observed walking back and forth in the area of some of these stacks.

In proposing a penalty for the stacking violation, Mr. Maglio considered the gravity of the violation, as well as Respondent's size, good faith and absence of any prior violations of the Act at the plant in question.   Respondent was given the maximum credit for good faith and prior history, but received no credit for size because of the number of employees at the plant. The gravity of the violation was considered to be relatively serious because an accident possibly would require the hospitalization of the injured employee.

  The plant manager did not accompany Mr. Maglio on his inspection; however, he examined the photographs [*28]   taken by Mr. Maglio and generally identified the areas in question.   As the areas are not manufacturing areas, employee movement in those areas is usually limited to forklift operators whose equipment affords overhead protection from falling objects.   He admitted that at least one photograph depicted improper storage.

I conclude that the evidence establishes that Respondent was in violation of 29 CFR 1910.176(b).   Machine Guarding Charge

Mr. Maglio testified that he observed a number of machines that he was not "too familiar with" that lacked appropriate guards at such points as nip points where a belt goes around a pulley, or sprocket chains go around a sprocket, and rotating couplings, some with protruding parts (Tr. 169, Vol I; Ex. C-6).   These unguarded parts, some located in the "open" while others were "underneath" the machines, could endanger the operator and others who might be in the area; however, Mr. Maglio could not recall any further details as to specific machines, the locations of unguarded parts, or the percentage of such parts located in the open, as opposed to a location underneath the machines (R 165, Vol I).   Mr. Maglio believed that the unguarded parts were   [*29]   dangerous to employees even when located in "inconspicuous spots" (Tr. 165, Vol I).   Mr. Oldroyd, when questioned as to whether any of the guarding charges involved were within or underneath the machine in question, replied:

Not isolated from a point that you couldn't get into it.   You could reach into it (Tr. 185, Vol I).

Like Mr. Maglio, Mr. Oldroyd could not recall further details of the guarding charge because of the passage of time.   As Mr. Maglio expressed it,

  Since this inspection, I have been out to over a hundred, and it is hard to say which machines had which (Tr. 169, Vol I).

A list of the machines and their unguarded parts, prepared at the time of the inspection, reveals in substance the following:

Buffalo drill press -- horizontal V-belt drive

c Flute (corrugator) -- motor coupling and belt drive

c Flute (corrugator) -- chain drive

c Flute (corrugator) -- coupling

b Flute (corrugator) -- chain and sprocket

Double back (corrugator) -- chain and sprocket

Belt lifter and tightener -- coupling

Mixer, caustic tank -- coupling

2 Starch pumps -- horizontal V-belt drives

2 Air compressors -- horizontal and V-belt drives

Machine #3610 -- chain and sprocket [*30]  

Machine #4210 and #4220 -- feed side

Air compressor -- horizontal V-belt drive

2 Glue mixing barrel stands -- chain and sprocket

Machine #5310 -- chain and sprocket

Glue pit -- chain (Ex. C-6)

This exhibit lacks any information as to the specific location of any of the unguarded parts.

Respondent's maintenance foreman testified that he was very familiar with every machine listed on Exhibit C-6.   The substance of his comments as to the items listed on the exhibit was as follows:

Buffalo drill press -- machine contained a manufacturer's guard that did not cover the nip point because it was necessary to have access to that point to change speed; the machine was never running when this change was made; there were other obstructions "sort of like barrier guards" to preclude accidental injury; a person "would have to reach up and over, like, to become injured" (Tr. 121, Vol II).   cFlute -- corrugator machine is between operator and these parts; when the machine is running, parts are hardly accessible because of the paper running through the machine and "other barrier obstructions such as conduit, pipe fittings" (Tr. 123, Vol II); only employees near unguarded parts are maintenance [*31]   employee making visual checks who are trained to work with such equipment and even they would have to reach in a   couple of feet to get caught" (Tr. 124, Vol II; unguarded parts are not exposed to employees performing their normal duties and there has never been an injury.

c Flute single facer -- also located on corrugator machine; chains are located "sort to speak [sic]" in the interior of the machine (Tr. 124, Vol II); other barriers preclude accidental contact and there have been no injuries in the past.

c Flute -- coupling on hydraulic pump; located on interior of pump and away from operator; smooth with no protruding parts; guarded by other obstructions such as hydraulic lines, conduit and the electric motor itself; no injuries in past.

b Flute -- chain and sprocket drive located in interior of machine away from operator and this too has barrier guards.

Doubleback -- chain and sprocket had a guard but it had an opening about 8 inches by 8 inches, not located near any nip point, so that the chain could be oiled; the guard with opening was on side away from operator, was part of the interior of the machine, and was further guarded by "starch pipes which are two-inch [*32]   size, conduit, water lines, and electric motor" (Tr. 127, Vol II).

Belt lifter -- lifter located on opposite side from operator; operates for about 10 seconds when the corrugator is stopped; does not operate when corrugator is in operation; cannot be turned on accidently; operates when stop button of corrugator is pressed and there is a warning horn sounded.

Tightener -- is started only once a month or once every two months and is run for only 10 or 15 seconds; only operated by maintenance men, not machine crew.

Mixer, caustic tank -- located underneath the work platform of starch machine, 5 to 6 feet from nearest walkway; employees do not work underneath platform; in order for an employee to get to it, he "would have to get on his hands and knees and crawl in" (Tr. 130, Vol II).

2 Starch pumps -- has barrier guard and interior guards, namely, two inch pipe, conduit and has cement curb around it; also, unguarded parts are on interior of machine 5 to 10 feet away from operator and are below the work station or floor.

2 Air compressors -- both had manufacturer's guards at nip points and exterior parts, but there was an opening in each guard on interior part of compressor which   [*33]   is guarded by air piping, conduit and the electrical drive motor; side exposed to employee was the side containing manufacturer's guard.

  Machine #3610 -- chain and sprocket located underneath machine and has barrier guard in form of 4 inch channel iron; employees do not work under machine and there has never been an injury.

The maintenance foreman then testified that the remainder of the unguarded parts listed in Exhibit C-6, 12 through 16, were similarly isolated and barrier guarded and that he had never heard of an accident or injury with respect to any of them.

The purpose of the standard in question is to eliminate hazards on machines hat reasonably threaten accidental injury to an operator or any other employee in the area of the machine when it is being operated.   Where there is no reasonable possibility of accidental injury in the normal course of events, there is no hazard and thus no need for the employer to comply with the standard.   The test applied to determine whether a hazard exists is, of course, a subjective one in which reliance is placed upon the common experience of mankind.   Thus, in resorting to this test, it is clear, for example, that an unguarded [*34]   nip point of a belt drive located twenty-five feet above both the machine and the reach of both the operator and any employee in the area, both engaged in the pursuit of their normal duties, presents no hazard and requires no guarding.   To hold otherwise, in my judgment, would elevate form over substance.   Reasonable possibility of accidental injury, therefore, is always an important element of the Secretary's burden in offering evidence in support of this charge, as well as most other charges.   He has not met this burden of proof in this instance.

The Secretary's two witnessess vaguely testified that some of the unguarded parts were in the open, but they were unable to elucidate further, either as to the particular machine or the location of the unguarded part.   Moreover, the list of machines and unguarded parts offered   by the Secretary failed to fill the void.   When this thin thread of evidence is placed in juxtaposition to Respondent's unrebutted evidence that many of the unguarded parts were not only isolated but were barricaded by other obstructions so as to preclude accidental contact, and that the remainder presented no hazards for other apparently valid reasons,   [*35]   it is abundantly clear that the Secretary's case falls short of that quantum of proof required to sustain the charge.   In sum, the evidence, as a matter of law, is insufficient to support the Secretary's charge that Respondent was in violation of 29 CFR 1910.212(a)(1); and item 4 of the Citation must be vacated.

Based upon the entire record, I reach the following:

FINDINGS OF FACT

1.   That Respondent is and was at all times in question a company doing business in more than one state.

2.   That at the time and place in question, Respondent's employees were not subjected to sound levels during a workshift that exceeded those listed in Table G-16, 29 CFR 1910.95 (Docket No. 2116).

3.   That at the time and place in question, Respondent failed to stack, block, interlock and limit in height stored material so that it was stable and secure against sliding or collapse (Docket No. 2250).

4.   That at the time and place in question, Respondent did not fail to guard machines to protect the operator and other employees from hazards (Docket No. 2250).

CONCLUSIONS OF LAW

1.   That this Commission has jurisdiction over the causes.

2.   That Respondent was not in violation of Section 5(a)(2)   [*36]   of the Act by not complying with 29 CFR 1910.95(b)(1) (Docket No. 2116).

  3.   That Respondent was in violation of Section 5(a)(2) of the Act by not complying with 29 CFR 1910.176(b) (Docket No. 2250).

4.   That Respondent was not in violation of Section 5(a)(2) of the Act by not complying with 29 CFR 1910.212(a)(1) (Docket No. 2250).

5.   That the penalty assessed herein is appropriate in light of the entire record and Section 17(j) of the Act (Docket No. 2250).

In Docket Number 2116, Item Number 4 of the Citation, as amended, is vacated.   In Docket Number 2250, Item Number 4 of the Citation, as amended, is vacated, whereas Item Number 3 thereof is affirmed.   A penalty of $40.00 is assessed for Item Number 3 of the citation in Docket Number 2250.

It is so ORDERED.