LOVE BOX COMPANY

OSHRC Docket No. 6286

Occupational Safety and Health Review Commission

April 7, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Marvin J. Martin and Robert Overman, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

I. Introduction

The decision of Administrative Law Judge Alan M. Wienman in this case, dated October 10, 1974, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. The decision is here on questions arising under the first-aid standard and the noise exposure standard.

Judge Wienman affirmed item 1(a) of the other than serious citation, alleging non-compliance with safety standard 29 CFR 1910.22(b)(1), for respondent's failure to maintain aisles and passageways free of cardboard scraps, sheets, and bundles. He assessed the $25 penalty proposed by the Secretary for items 1(a) and 1(b) even though he vacated item 1(b). Item 1(b) alleged non-compliance with safety standard 29 CFR 1910.22(b)(2). It alleged respondent's failure to appropriately mark permanent aisles and passageways.

Item 2, vacated by Judge Wienman, alleged respondent's non-compliance [*2] with safety standard 29 CFR 1910.95, subparagraphs (1), (2), and (3) of paragraph (b). In brief, these subparagraphs (1) require the use of feasible administrative or engineering controls when sound level-duration ratios rise above those set out in Table G-16 of the standard; (2) define as "continuous" noise levels, noise when variations involving maxima of one second or less; and (3) require continuing effective hearing conservation programs to be administered when noise levels exceed those set out in Table G-16. Judge Wienman noted that the record contained "a considerable quantum of evidence on the issue of the feasibility of administrative controls . . . ." He concluded, however, that the issue of feasibility was not presented in the pleadings. He would not hold that the issue was tried by the implied consent of the parties. Finally, Judge Wienman concluded that complainant failed to establish that respondent was not administering a continuing effective hearing conservation program.

Item 3 alleged respondent's noncompliance with safety standard 29 CFR 1910.151(b) for failure to have a person trained in first aid on its second shift. The Judge vacated this item because [*3] he was bound by Commission's precedent applying that standard. That cited precedent has since been reversed by the Court of Appeals for the Tenth Circuit. Santa Fe Trail Transportation Company, 5 OSAHRC 840, BNA 1 O.S.H.C. 1457 CCH O.S.H.D. para. 15,416 rev'd, 505 F.2d 869 (10th Cir. 1974).

The Secretary filed a Petition for Discretionary Review. He objected to the Judge's holding that he failed to plead affirmatively the issue of the feasibility of administrative and engineering controls. Alternatively, he excepted to the Judge's failure to hold that the feasibility issue was tried by the implied consent of the parties. The Secretary objected to the Judge's holding that he was unable to ascertain, from the dosimeter and sound level meter readings, the frequency at which operators would have to be rotated in order to limit their exposure to noise levels permitted by Table G-16. Finally, the Secretary excepted to the Judge's vacation of the 29 CFR 1910.151(b) allegation.

Review before the full Commission was at my direction on the 29 CFR 1910.151(b) allegation. The order specifically invited submissions on:

. . . so much of the [Secretary's] petition . . . that [*4] raises the issue listed below . . .

Whether the Administrative Law Judge erred in vacating the citation for the alleged violation of the Act for failure to comply with the standard at 29 CFR 1910.151(b)?

This order however was accompanied to the parties by a general notice signed by the Executive Secretary, on behalf of the Commission, inviting submissions by the parties on specified issues and any other issues that the parties might wish to brief.

Pursuant to the notice, the Secretary briefed all issues raised in his Petition for Discretionary Review. Respondent argued the feasibility issues raised by the Secretary, and raised several additional issues. Respondent argues that 29 CFR 1910.95 prescribes that measurement on the "A" scale of a standard sound-level meter at slow response is the sole authorized technique for making sound measurements. Respondent objected to the Judge's holding that its operators of the Langston corrugator were subject to excessive noise levels. It objected to the finding of the section 5(a)(2) violation, with its attendant $25 penalty, for its non-compliance with safety standard 29 CFR 1910.22(b)(1). Finally, respondent argued that Judge [*5] Wienman should have ruled that the posting requirements of section 9(b) of the Act abridge respondent's rights under the first and Fifth Amendments.

II. Facts

Respondent is engaged in the manufacture of corrugated boxes, and it employs approximately 151 employees. The facts, as they relate to specific issues before the Commission, are summarized below with the pertinent item of the citation.

Item 1(a) alleged the aisles and passageways hazard. The cited standard provides as follows:

1910.22 General Requirements.

* * *

(b) Aisles and passageways. (1) Where mechanical handling equipment is used, sufficient safe clearance shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

The compliance officer testified that during his inspection he noticed that several of the aisles in the plant were impassable due to stacks of corrugated board of boxes. Others were littered with cardboard. There were forklifts operating in the area. The hazards presented were said to be (1) blocked aisles [*6] to exits in case of emergency; (2) possibility of forklifts overturning; (3) tripping hazards to pedestrian traffic.

Respondent's manager testified that a forklift has never tipped over. He testified that there was no danger of a forklift overturning because of cardboard litter in the aisles. Respondent's forklift operator testified that he had never seen an accident with a forklift caused by an obstruction of the aisle.

Item 2 alleged the noise hazard. The cited standard provides as follows:

1910.95 Occupational noise exposure.

* * *

(b)(1) When employees are subject 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 use to reduce sound levels within the levels of the table.

(2) If the variations in noise level involve maxima at intervals of 1 second or less, it is to be considered continuous.

(3) In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered.

The Citation and Complaint alleged [*7] that operators of respondent's corrugator machine were exposed to excessive noise levels and that a hearing conservation program was not being administered. It was not alleged that feasible administrative or engineering controls were not being used. The abatement portion of the citation, however, did require an abatement plan describing all feasible engineering and administrative controls to be instituted by June 7, 1974. In addition, interim reports describing respondent's progress were to be filed on a monthly basis.

During the December 1973 inspection, the compliance officer took spot noise measurements with a standard sound level meter. Based on these measurements, he returned the following day to measure the continuous exposure of the two operators of the Langston corrugator. The device he used to measure the sound levels was a DuPont Noise Dosimeter.

The dosimeter is designed to measure varying sound levels, over time, in accordance with specific hearing conservation criteria. The dosimeters used in respondent's plant were set to reflect the hearing conservation criteria established in the Occupational Safety and Health noise standard. Sounds entering the microphone [*8] of the dosimeter are first measured on the equivalent of a standard sound meter. The dosimeter then records the varying sound levels entering the microphone onto a memory cell. The memory cell, upon completion of the exposure period, is placed into a read-out instrument. The read-out instrument will display the level of noise as a percentage of the noise standard. In this case, a read-out of 100 percent or less would reflect compliance with the noise standard.

The tested employees were wearing earplugs during the inspection. The dosimeters were worn for 6 hours 45 minutes with the microphone attached to the operators' collars. Exposure readings were recorded as 198 percent and 124 percent for that period. Comparable exposure for an 8-hour period were calculated respectively at 235 percent and 147 percent. During the testing period, spot readings with a portable sound level meter accurately reflected the dosimeter read-outs.

The compliance officer testified that the danger involved is the probability of permanent hearing damage.

The compliance officer had no previous experience with corrugators. He could only suggest general methods of engineering controls, such as proper [*9] maintenance, dampening and shielding. His testimony on administrative controls was limited to employee rotation. He suggested a relay system, but did not indicate what time period for what exposure would be involved. He admitted never having tested the controls mentioned, and suggested rotating employees if this was feasible. He did not know if respondent was operating a hearing conservation program, but did not think he was. The compliance officer stated that an effective hearing conservation program includes engineering and administrative controls.

Respondent's evidence indicated that audiometric exams have been performed on the operators of the corrugator; that noise surveys have been taken; and that employees wear hearing protection equipment.

The evidence further indicates that respondent is a member of the Fiber Box Association. The Association has been conducting research and development on noise abatement for corrugators since July 1972. A prototype enclosure had been approved by the OSHA Cincinnati office and was being installed in a New Jersey plant to test its effectiveness.

Respondent's manager testified that when the corrugator was purchased they could not [*10] find a manufacturer who would guarantee that OSHA standards would be met. He testified that rotating employees was not feasible because of the extensive training (one year) and continuity of operation required.

Item 3 alleged violation of standard 29 CFR 1910.151(b). That standard provides as follows:

1910.151 Medical Services and First Aid.

* * *

(b) In the absence of an infirmary, clinic, or hospital in near proximity (sic) to the work-place which is used for the treatment of injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readily available.

Respondent's plant is located 4 1/2 miles from the nearest hospital. There was no one trained in first aid on the second shift at the plant (3:30 p.m. to 12:00 a.m.). The compliance officer testified that travel time during the afternoon from the plant to the hospital was approximately nine minutes.

III. Discussion

The Judge's holding that respondent was in noncompliance with safety standard 29 CFR 1910.22(b)(1) is attacked by respondent on two grounds. Respondent argues that the complaint limited the citation [*11] to "hazards to workman operating mechanical handling equipment." Tripping hazards to pedestrians could not be used to find a violation. Secondly, respondent argues that 1910.22(b)(1) is applicable only to operators of mechanical handling equipment and not to pedestrians. Respondent is correct on both positions. They only testimony of record as to the nature of the hazard as it relates to respondent's forklift drivers, is that there was no hazard. The finding of this violation by the Administrative Law Judge must be reversed and its attendant $25 penalty vacated. n1

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n1 The record reveals that, in all likelihood, respondent was in violation of safety standard 29 CFR 1910.22(a) which requires all places of employment, passageways, storerooms, and service rooms to be kept in a clean and orderly condition. The case was not tried pursuant to this housekeeping standard and the Commission will not, in the absence of a motion from complainant, remand the case for a trial of this issue.

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Turning next to the alleged noise [*12] violation, the Secretary takes the position that the pleadings were sufficient to place in issue the feasibility of administrative or engineering controls. Alternatively, he argues that they should be amended to conform to the proof pursuant to Federal Rule of Civil Procedure 15(b). We resolve this issue by deciding the feasibility question on its merits. We find against the Secretary. n2

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n2 We agree, however, with the Administrative Law Judge that excessive noise levels were proved and that the use of an audio dosimeter for measuring this exposure is not precluded by section 1910.95(a). As explained in the testimony, a dosimeter contains the basic elements of a standard sound level meter, even though it has additional elements enabling the user to compute cumulative noise exposure under Table G-16. Also, we agree that the standard does not require the use of a standard sound-level meter as an exclusive measuring instrument. The express approval of the use of noise levels determined by octave band analysis indicates this.

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The compliance officer testified to two general methods of reducing employee noise exposure by the use of engineering controls. He noted that "proper mechanical maintenance, . . ., will reduce noise." On cross-examination the compliance officer acknowledged that his statement applied generally to mechanical equipment. The record is devoid of evidence, however, from which it might be concluded that respondent's corrugator was not properly maintained.

The second general method of reducing employee exposure to noise through the use of engineering controls entails the instruction of an acoustical booth. It would be possible to construct a sound insulated booth for the operator of the corrugator. The operator could then stand in the booth and view the operation of the machine through a plexiglass window.

During cross-examination of respondent's manager of manufacturing, testimony was received that a relevant to the Secretary's suggested use of an acoustical booth. The nature of the operator's duties required him to move in a large area to be sure the corrugating process was continuing properly. The operator could only step back from the machine a distance of ten feet [*14] for "a minute or so, a couple of minutes," before returning to the face of the machine to inspect the product. In other words, his duties were not stationary.

On the issue of engineering controls, respondent presented as its witness the Noise Abatement Coordinator for the Fiber Box Association. Respondent is an active member of the Association. The witness discussed at length the efforts to which the Association had gone to develop feasible engineering controls for the single facer of the corrugator. The first successful control, termed a "tight-end" enclosure, was at the time of the hearing, in the experimental stage. It was estimated that a prototype with a 20 dBa attenuation capacity would be ready within a month of the hearing and that its effectiveness would be determined within three months.

From this testimony the Secretary argues that respondent has demonstrated routes that it could have pursued to determine and implement feasible engineering controls. We reject the Secretary's argument. The record evidence did not establish that the "tight-end" enclosure was feasible. It only established that it might be feasible and that its feasibility would be determined shortly. [*15] The efforts of the Fiber Box Association to reduce noise does not establish that the noise can be reduced.

With respect to the use of administrative controls, the Secretary's position was that employees could be rotated. The Judge, however, could not ascertain from this record the frequency with which operators would have to be rotated in order to limit exposure to noise levels permitted by the standard. Nor can we. Also, rotation would not be feasible if the rotation occurs as often as every thirty minutes. If there were a trained replacement operator available, there would be an overlap of about ten to fifteen minutes at the corrugator while the replacement operator was being instructed as to the status of the corrugator's operation by the current operator. While this instruction was taking place the machine from which the replacement operator was taken would be idle and would impede the flow of production. Respondent also established that it takes a substantial amount of training and skill to operate the corrugator. Approximately one year of on-the job training would be necessary for an alternate operator.

We hold under these circumstances that there were no available [*16] feasible administrative or engineering controls that could be applied to reduce employee exposure to the noise surrounding respondent's corrugator. n3

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n3 I add my separate view that I would presume that administrative controls are feasible when the Secretary of Labor proves that they are possible. Cf. Reynolds Metals Co., No. 1551 (February 25, 1976)    BNA OSHC   , CCH OSHD para. 20,447 (dissenting opinion) (similar presumption) on feasible engineering controls. Further, in my view the need for extensive training alone would not render an administrative control unfeasible, but the other circumstances described in the text do suggest that the employer has rebutted the presumption.

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Turning next to the issue that I directed, it is noted that the Tenth Circuit has overruled the decision of the Commission on the 29 CFR 1910.151(b) "proximity to an infirmary" question. Respondent did not have anyone trained in first aid working on its second shift. It took approximately nine minutes to drive to the nearest [*17] hospital from respondent's plant. The court in Brennan v. O.S.H.R.C. and Santa Fe Trail Transport. Co., 505 F.2d 869, 872 (10th Cir. 1974), noted that:

In serious accidents, . . ., first aid, to be effective must be administered within three minutes.

We conclude that the Tenth Circuit's decision in Santa Fe, supra, should be controlling in this case. The decision of Judge Wienman on the 29 CFR 1910.151(b) allegation is reversed.

Section 17(j) of the Act requires respondent's size, good faith, past history and the gravity of the violation to be considered in assessing a proper penalty. Respondent is an employer of moderate size, employing approximately 150 people at the time of inspection. Its good faith was established on the record inasmuch as respondent courteously sought to aid the compliance officer in his inspection. Respondent has no past history. The gravity of the violation is moderate. Time might well be a critical factor in treating an injury. Having considered the elements of section 17(j), we assess a $25 penalty for respondent's noncompliance with safety standard 29 CFR 1910.151(b).

Accordingly, it is ORDERED that the decision of Judge Wienman [*18] is modified to reflect respondent's violation of section 5(a)(2) for noncompliance with safety standard 29 CFR 1910.151(b); a $25 penalty is assessed for this violation. Judge Wienman's decision to vacate the allegation of respondent's noncompliance with the noise standards contained in 29 CFR 1910.95(b)(1)(2) and (3) is affirmed for the reasons stated herein. It is further ORDERED that the decision of Judge Wienman affirming the Secretary's allegation of respondent's noncompliance with safety standard 29 CFR 1910.22(b)(1) with its attendant $25 penalty is vacated. Judge Wienman's decision is in all other respects affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I concur in the disposition of this case. However, since the Commission decision does not fully discuss all the matters covered in Judge Wienman's decision, the same is attached hereto as Appendix A.

Appendix A

DECISION AND ORDER

KENNETH HELLMAN and STEPHEN G. REYNOLDS, Office of the Solicitor, United States Department of Labor, for the Secretary of Labor

MARVIN J. MARTIN and ROBERT OVERMAN, appearing for the Respondent

Hearing held June 18, 1974, at Wichita, Kansas, Judge Alan M. Wienman presiding.

[*19] STATEMENT OF THE CASE

Alan M. Wienman, Judge, OSAHRC:

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by Section 9(a) of that Act. The Citation alleged on the basis of an inspection of a workplace under the ownership, operation or control of respondent located at 700 East Thirty-seven Street, Wichita, Kansas, that the respondent violated the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor.

The Citation, issued January 7, 1974, set forth the alleged violations in the following form:

10.

11. Standard, regulation

Item

or section of the Act

12.

number

allegedly violated

Description of alleged violation

1a

29 CFR 1910.22

Cardboard scraps, cardboard

(b)(1)

sheets and bundles

scattered throughout in the

passageways create

tripping and slipping hazards

to pedestrian traffic

and hazard to mechanical handling

equipment traffic.

(Plantwide).

1b

29 CFR 1910.22

The permanent aisles and

(b)(2)

passageways are not

appropriately marked.

(Plantwide).

2

29 CFR 1910.95

Operators of the Langston

(b)(1), (2) and

corrugator are subject

(3)

to noise levels in excess

of permissible levels

listed in Table G-16. A

continuing and effective

hearing conservation program

is not being

administered. (Main Plant

Building).

3

29 CFR 1910.151

No person trained in rendering

(b)

first aid is available

on second shift. (General).

The above alleged violations

are cited from 29 CFR

1910 as appears in Volume 37

of the Federal Register

dated October 18, 1972, Number 202.

[*20]

Respondent was also notified by letter that the Secretary proposed to assess penalties in the sum of $95 for the alleged violations, itemized as follows: Item 1a, 1b, $25; Item 2, $45; Item 3, $25.

Respondent filed a timely Notice of Contest, and after Complaint and Answer had been filed, the cause came on for hearing at Wichita, Kansas, on June 18, 1974.

THE ISSUES

The primary issues for resolution are whether the respondent violated occupational safety regulations as alleged in the Citation, and, if so, what penalty or penalties are appropriate.

In addition respondent raised an ancillary question in its Answer relative to the constitutionality of Section 9(b) of the Act which requires posting of the Citation at or near the place where the violation occurred. Respondent contends that this provision of the Act abridges the First and Fifth Amendments to the United States Constitution. The undersigned Judge is persuaded that neither the Commission nor its several judges have jurisdiction to pass on the constitutionality of the statute from which the Commission derives its authority, and the constitutional question will not be discussed further herein. Respondent is entitled [*21] to have all constitutional questions determined by a court, but this decision and order will be limited to matters within the jurisdiction of the Commission.

SUMMARY OF THE EVIDENCE AND DISCUSSION

Noise Exposure

Most of the testimony by witnesses for both parties related to Citation item 2. This item was referenced to Occupational Safety Regulations 29 CFR 1910.95b(1), (2) and (3), n1 but, as described on the Citation and the Complaint, the charge was summed up in two declarative sentences: First, it was alleged that employees operating a Langston Corrugator Machine were subject to noise levels in excess of permissible limits set forth in Table G-16 of the regulations; second, it was averred that respondent was not administering a continuing and effective hearing conservation program. Despite a sharp controversy over the instrumentation employed by OSHA to measure the sound levels, the first allegation was amply proven. However, as it will appear from the summary of the testimony, the Secretary's representatives were poorly informed as to the nature and extent of respondent's hearing conservation program, and the second allegation was not proven.

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n1 "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 equipment shall be provided and used to reduce sound levels within the levels of the table.

(2) If the variations in noise level involve maxima at intervals of 1 second or less, it is to be considered continuous.

(3) In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered.

Table G-16 -- Permissible

Noise Exposures n1

Sound level

dBA slow

Duration per day, hours

response

8

 90

6

 92

4

 95

3

 97

2

100

1-1/2

102

1

105

1/2

110

1/4 or less

115

n1 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.

Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level."

[*23]

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An inspection of respondent's corrugated box manufacturing plant at Wichita, Kansas, was conducted by OSHA Compliance Officer Karl Ammersbach on December 20 and 21, 1973. On the first day Mr. Ammersbach made a number of "spot" noise measurements with a sound level meter. He noted some readings as high as 103 decibels and determined there was a possibility of excessive noise at certain machines (Tr. 13).

In order to ascertain whether operators of a 50-foot long corrugator machine were exposed to excessive levels during the course of an eight hour workday Ammersbach on September 21, 1973, placed audio dosimeter instruments on two men, Loren Reed and Ted Burton. Reed worked near the head of the corrugator, Burton worked near the rear end (T. 22).

Ammersbach described the manner in which the instruments were employed. Microphones were clipped to collars, and the recording portion of each device was placed in a pocket (T. 24). The instruments were attached to the two employees for a period of seven hours and fifteen minutes (T. 24). At the conclusion of this period the dosimeters were turned off, [*24] and a "memory cell" was removed from each instrument. The cells were later placed in a "readout" meter to learn what the exposure had been (T. 24-25).

The dosimeters used in the test were manufactured by the duPont Company, and functioning of the instruments was described in the testimony of Doak O. Conn III, Manager of duPont's Applied Technology Division. As explained by Mr. Conn a dosimeter contains the basic elements of a standard sound level meter, plus elements which enable the user to compute cumulative noise exposure in terms of Table G-16 (T. 83-103). A reading of 100 on the readout device indicates an employee has received maximum permitted exposure for a workday. A reading in excess of 100 indicates sound levels exceeding those shown in Table G-16 (T. 103).

Ammersbach testified that employees Reed and Burton each had a one-half hour lunch break during which they were away from their machine. Net exposure for each employee was six hours and forty-five minutes. The readout figure for Reed was 198; for Burton, 124. By extending the six hour and 45 minute exposure to an eight hour day Ammersbach calculated that Reed's exposure was 235 percent of permitted levels and [*25] Burton's was 147 percent (T. 27-28).

Ammersbach also testified that at least six times during the day he employed a standard sound level meter to make spot samples of the noise exposure in the vicinity of Reed and Burton. In Reed's area the spot reading was never less than 98 decibels; the reading was always in excess of 93 decibels in Burton's area (T. 28).

Ammersbach also testified extensively as to the manner in which the measuring instruments had been calibrated (T. 28, 70-75).

Respondent contends that the testing employed by Ammersbach was not sufficient to establish that the operators of the corrugator machine were subject to excessive noise levels, pointing out that the instantaneous sound level meter readings are insufficient to establish noise exposure in terms of the Table G-16 duration, and further contending that dosimeter measurements are not permissible under the present regulation.

Respondent interprets 29 CFR 1910.95(a) n2 to mandate the use of a standard sound level meter as the exclusive measuring device to determine whether sound levels exceed those set forth in Table G-16. Respondent focuses on the phrase, "when measured on the A scale of a standard sound [*26] level meter at slow response," and suggests the purpose of this passage is to specify the sole instrument to be employed in determining noise exposure. n2

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n2 "1910.95(a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G-16 when measured on the A scale of a standard sound level meter at slow response. When noise levels are determined by octave band analysis, the equivalent A-weighted sound level may be determined as follows:

[SEE ILLUSTRATION IN ORIGINAL]

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Interpretation of the above quoted passage as an "exclusive instrument" mandate, however, would service to introduce a curious ambiguity into the regulation since the next sentence of 1910.95(a) not only authorizes determinations of noise levels by other instruments and means -- octave band analysis -- but also plots reference points on a graph to convert octave band sound pressure level data into "equivalent A weighted sound level."

The apparent ambiguity created by two successive sentences in [*27] 1910.95(a), one purportedly authorizing an exclusive measuring instrument, and the second promptly shattering this authority, is readily resolved by resort to elementary construction rules. Construction must be made upon the entire regulation, and the whole context must be considered to ascertain the intention of the authors. Ex antecedentibus et consequentibus fit optima interpretatio. ("A passage is to be interpreted by reference to what precedes and what follows it.")

Antecedentibus: The passage in question ("when measured on the A scale of a standard sound level meter slow response") is preceded by a reference to "sound levels . . . in Table G-16." If the passage is construed to modify and explain "sound levels in Table G-16" rather than specify instrumentation there is no resultant ambiguity.

Consequentibus: Table G-16, entitled "Permissible Noise Exposure," contains two columns. The left-hand column bears a heading intelligible to a layman, "Duration per day, hours." The right-hand column heading is less intelligible to one unversed in the technical jargon of noise control: "Sound level dBA slow response." The phrase is an abbreviated [*28] reference to the customary units employed in occupational noise measurements; the same reference is stated in slightly less abbreviated fashion in the phrase "sound levels . . . measured on the A scale of a standards noise level meter at slow response." Incorporated in the phrase is the knowledge that loudness as interpreted by the human ear depends not only on sound pressure level or intensity of the sound but also upon its frequency or pitch. For this reason measuring instruments generally include a "weighting network" which causes the instrument to be less responsive to low pitch tones thereby simulating the response of the ear. There are three standard weightings which are called A, B and C. The abbreviation "dBA" stands for decibels, the unit of measure of sound levels, adjusted by an "A" weighting network. "Slow response" is another instrument adjustment which causes it to average out high level noises of brief duration. n3

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n3 See Accoustical Tests and Measurements, Don Davis, Howard W. Sams & Co. (1965) for a relatively non-technical explanation of sound measurement.

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Thus, from a reading of regulation 29 CFR 1910.95 in its entirety, we are persuaded that the reference to measurement on the A scale of a standard sound level meter at slow response was not intended to specify exclusive instrumentation for the measurement of noise, but by way of defining permissible noise limits in terms of sound level pressure adjusted for frequency as per a standardized weighting curve with an additional adjustment to minimize sounds of short duration.

We conclude that the regulation in its present form neither endorses nor prohibits the measurement of noise by means of audio dosimeters. n4

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n4 Revised noise exposure regulations proposed by the Standards Advisory Committee on Noise contain specific subsections dealing with "Instrumentation," "Measurement Procedure" and "Calibration." (Exhibit R-11) Revised regulations would establish minimum requirements for sound level meters and require NIOSH certification for audio dosimeters, but eliminate measurement of noise levels by means of octave band analysis, VIZ:

(2) Instrumentation. (i) measurements of steady state noise exposure shall be done with a sound level meter conforming as a minimum to the requirements of ANS S1.4 Type 2 and set to use an A weighted slow response; or with a NIOSH certified audio dosimeter." (Exhibit R-11)

It is interesting to note that although respondent strenuously objects OSHA's use of dosimeter measurements in the instant case, the Fiber Box Association is on record urging OSHA to adopt dosimeters for noise exposure measurement. See Page 4 of statement of Fiber Box Association to the OSHA-OSNC Standards Advisory Committee on Noise at its September 24-25, 1973, meeting:

"It is difficult for compliance officers to measure accurately the daily occupational noise exposure for workers who are mobile in the performance of their job duties, that is, those whose work stations are in areas where different noise levels exist. This situation is true of our industry. The Fiber Box Association supports another objective of this Committee which is directed at the adoption of an accumulator-type noise level instrument specifically approved by OSHA." (Exhibit R-6)

[*30]

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The evidence that the operators of the corrugator machine were exposed to excessive noise levels is abundantly persuasive. In addition to the compliance officer's testimony relative to instantaneous noise sampling showing high levels consistent with the dosimeter results (T. 28), respondent's witnesses themselves supplied considerable collaborating data. The machine which produces the noise is a huge, expensive installation which is presently the focus of an extensive industry wide effort to solve an admitted noise problem. The machine in question was purchased at a cost of $800,000 in 1972. In represents the latest state-of-the-art, but the manufacturer would not guarantee that the corrugator could meet OSHA noise standards (T. 128-129). Sound level readings in the area of the corrugator in the spring of 1973, as recalled by Robert H. Martin, respondent's assistant manufacturing manager, ranging from a low of around 87 decibels to 93 or 94 with the machine wide open. He admitted that the machine runs wide open on occasion (T. 151-152).

The mere existence of sound levels exceeding those set forth [*31] in Table G-16 does not in itself constitute a violation of regulation 1910.95(b). Rather, 1910.95(b)(1) states that when employees are subjected to excessive sound loevels feasible administrative or engineering controls shall be utilized and personal protective equipment shall be provided and used if such controls fail to reduce sound levels within the limits of Table G-16. 1910.95(b)(3) directs that in all cases where the sound levels exceed the stated values, a continuing effective hearing conservation program shall be administered.

For reasons best known to the complainant neither the Citation nor the Complaint contains any express allegation with respect to the utilization of feasible administrative or engineering controls. Rather, respondent's violation was alleged to have been its failure to administer a continuing, effective hearing conservation program. Complainant's evidence in support of this charge was sparse indeed, and it appeared that little effort had been made to learn the extent of the employer's hearing conservation efforts.

Before discussing the pertinent items of evidence, however, it should be observed that regulation 1910.95 contains a number of words of [*32] art to which the Department of Labor attaches particular meaning. These meanings are set forth in the Department's Guidelines to Occupational Noise Standards published June 8, 1971 (CCH Paragraph 8,156). As used in the regulations "hearing conservation," we learn, "refers to audiometry -- periodic checks of the hearing ability of individual employees; and noise surveys -- periodic checks of the noise level in the areas in which employees are working."

The Department of Labor guidelines also define the adjectives "continuing" and "effective."

"Continuing" means that the program will be in effect and in use as long as noise levels above 90 dBA occur in the plant.

"Effective" means that exposed employees will not suffer continuing hearing deterioration of hearing acuity because of their exposure, but that incipient loss of hearing will be detected and necessary steps taken to prevent further deterioration before serious hearing loss has occurred.

Compliance Officer Ammersbach noted that the corrugating machine operators wore earplugs, but he was unaware of any hearing conservation program in effect at the plant (T. 35). He was persuaded that there was no such program because other [*33] employees wore no hearing protection (T. 52).

Robert Martin testified that respondent began audiometric testing for employees working on the "wet end" of the corrugator in the spring of 1973 (T. 145). The testing is conducted by the Broadway Medical Clinic, Wichita, Kansas. The nature of the testing program was outlined in a letter from Doctor Sherburne MacLeod from the Broadway Medical Clinic. The program is a continuing one, and as of the hearing date there is no evidence of loss of hearing acuity on the part of the affected employees (Exhibit R-1).

On the basis of the foregoing record the only permissible conclusion is that complainant failed to prove that a continuing and effective hearing conservation program is not being administered by the respondent.

One additional point should be made with respect to the noise level issue as tried by the parties. Although the citation contained a reference to 1910.95(b)(2), neither the Citation nor the Complaint specifically alleged that respondent failed to utilize feasible engineering or administrative controls to reduce noise levels to permissible levels. This omission from the pleadings, however, did not deter the parties from [*34] introducing considerable testimony relating to the feasibility of engineering and administrative controls. Compliance Officer Ammersbach suggested that a number of engineering avenues existed which might reduce sound levels (T. 33-34), but that in any event administrative controls in the form of job rotation could lessen individual exposure and thereby bring employees within the permissible levels (T. 34-35).

Respondent on its part presented a considerate body of testimony, primarily from Eugene S. Schneider, Noise Abatement Coordinator of the Fiber Box Association, documenting the fact that the industry was energetically seeking an engineering solution to the noise problem caused by corrugating machines and had not achieved success as of the date of the hearing (T. 158-163). He held out some hope in the form of certain dampening modifications developed by the Koppers Company. A modified prototype was scheduled to commence operating in New Jersey in July 1974 (T. 176), but Schneider stressed that feasible engineering controls had not been achieved at the time of the hearing.

Respondent also sought to rebut any suggestion that administrative controls, i.e., rotation of workers [*35] to limit the duration of exposure, was a feasible solution to the problem. Respondent's witnesses maintained that rotation of the corrugator operators was not feasible because of the high degree of training required of corrugator operators, the necessity of maintaining continuity of operations, etc. (T. 132, 137-9, 182).

Despite a considerable quantum of opinion testimony in the record, the issue of feasible administrative controls nevertheless was not sufficiently developed to conclude that the parties had tried an issue not raised in the pleadings by implied consent. The undersigned Judge is unable to ascertain from the dosimeter and sound level meter readings the frequency with which the operators would have to be rotated in order to limit exposure to noise levels permitted by Table G-16. Absent such a showing it is purposeless to speculate about the effect on respondent's operations. Rotation might or might not be prohibitively expensive and not feasible. In any event we merely note that the issue was not presented in the pleadings and not sufficiently tried by consent to support any findings. We do find that the corrugator operators on December 21, 1973, were subjected [*36] to noise levels in excess of permissible levels listed in Table G-16, but the evidence failed to establish that respondent was not administering an effective hearing conservation program. This finding is made mindful of the fact that respondent's program may have been less than model in terms of surveys, supervision, etc. On balance, however, the record indicates the Love Box Company recognized and responded to its noise problem sufficiently to warrant vacation of Item 2 of the Citation.

Citation Items 1a, 1b, and 3

Compliance Officer Ammersbach testified that several of the aisles in the plant were impassible because of the presence of stacks of corrugated border boxes. Other areas were littered with cardboard. He cited respondent for alleged violations of regulations 29 CFR 1910.22(b)(1) and (2). It was the Compliance Officer's opinion that the conditions presented a number of hazards, increasing the peril to workers in case of fire, increasing the tripping hazard, and creating the possibility of forklift trucks overturning (T. 16-17).

Regulation 29 CFR 1910.22(b) provides as follows:

"(b) Aisles and Passageway.

(1) Where mechanical handling equipment is used, sufficient [*37] safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles which could create a hazard.

(2) Permanent aisles and passageways shall be appropriately marked."

Respondent countered the compliance officer's testimony relative to the obstructive passageways with a forklift truck operator, James Pollock, who testified that he had driven a forklift truck at the plant for 20 years. During this time he observed no accidents involving forklifts caused by aisle obstructions. He commented on the difficulty of overturning a forklift (T. 202, 203)

On the basis of the foregoing we would conclude that the evidence establishes the existence of obstructions in aisles and passageways which presented hazards to personnel but no hazard to the operation of mechanical handling equipment. The pedestrian hazard is sufficient to affirm a violation of 29 CFR 1910.22(b)(1), and a penalty of $25 appears appropriate giving due consideration to all circumstances.

The record includes no proof with respect to Item 1(b) and said item must be [*38] vacated.

Citation item number 3 alleged a violation of regulation 29 CFR 1910.151(b). This regulation provides, in pertinent part, that in the absence of an infirmary, clinic or hospital in near proximity to the workplace a person or persons shall be adequately trained to render first aid.

The Commission had noted conflicting interpretations of the standard by OSHA Area Directors and found that the regulations provided no guidance as to the meaning of the words "near proximity." In view of the Commission decision, it is now appropriate that item number 3 of the Citation be vacated. A summary of the testimony related to item number 3 will not be included in this decision since it is unnecessary for disposition of the issue.

FINDINGS OF FACT

Having held a hearing and considered the entire record herein, it is concluded that the substantial evidence in the record as a whole supports the following findings of fact:

1. Respondent, Love Box Company, Inc., at [*39] all times involved in this case had a workplace at 700 East Thirty-Seven Street, Wichita, Kansas, where it was engaged in the manufacture of corrugated boxes.

2. Respondent at all times mentioned herein was an employer in a business which affects interstate commerce.

3. On December 21, 1973, two of respondent's a ployees engaged in operating a Langston Corrugator Machine were subjected to sound levels exceeding those listed in Table G-16 of regulation 29 CFR 1910.95. On said date the corrugator machine operators were provided with hearing protective equipment and were wearing same.

4. The Langston Corrugator Machine operators are the subject of periodic audiometric testing, and tests to date reveal no loss of hearing acuity on the part of affected employees.

5. On December 20, 1973, Compliance Officer Ammersbach observed cardboard scraps, sheets and bundles scattered throughout passageways in respondent's manufacturing plant thereby presenting a tripping hazard to employees using the passageways.

6. The evidence fails to establish any violation of the regulation codified as 29 CFR 1910.22(b)(2).

CONCLUSIONS OF LAW

1. At all times material hereto, the respondent was [*40] an employer engaged in a business affecting commerce within the meaning of section 35 of the Act. The Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter herein.

2. At all times material hereto, respondent violated section 5(a)(2) of the Act by its noncompliance with the safety regulation codified as 29 CFR 1910.22(b)(1). It is appropriate that a $25 penalty be imposed for the aforesaid violation in view of the gravity of the violation, respondent's size, safety program and previous history.

3. At all times material hereto, respondent was not in violation of the safety regulations codified as 29 CFR 1910.95(b)(1), (2) and (3), and 29 CFR 1910.22(b)(2).

ORDER

Based on the above findings of fact and conclusions of law, it is ORDERED that:

1. Item 1a of the Citation issued to respondent [*41] on January 7, 1974, is hereby affirmed and a $25 penalty is assessed for said violation.

2. Items 1b, 2 and 3 of the aforesaid Citation and the penalties proposed thereon are hereby vacated.

Date: October 10, 1974

Alan M. Wienman, Judge, OSAHRC