GREAT FALLS TRIBUNE COMPANY

OSHRC Docket No. 6632

Occupational Safety and Health Review Commission

May 19, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry Mahlman, Reg. Sol., USDOL

Norton L. Armour, for the employer

Ludwig Gartner, for the employer

OPINION:

DECISION

BARNAKO, Chairman:

The issue in this case is whether Respondent violated the Secretary's noise standard n1 by failing to implement feasible engineering or administrative controls to reduce the noise levels in its press room. Judge John J. Morris concluded that Respondent did not violate the standard. For the reasons which follow, we affirm his decision.

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n1 The standard, 29 C.F.R. 1910.95(b)(1) provides:

When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

Table G-16 -- 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

[*2]

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Respondent publishes a daily newspaper in Great Falls, Montana. The newspapers are printed in a room called the press room. Five printing presses and a folder are located in the room. The machines are operated by a crew of four to eight pressmen.

The pressmen have a number of duties to perform which require their movement throughout the room. Their principal responsibility is to constantly observe the presses to assure that they are functioning properly, and to stop the presses should a malfunction occur. Other duties include setting up the presses, adjusting the ink flow while the presses are running, and inspecting finished newspapers as they come out of the folder.

The average noise level in the vicinity of the presses when they are running at normal speed is approximately 100 dbA. n2 The press runs vary considerably in length from day to day. The shortest runs slightly exceed one hour, and the longest are over six hours. The average press run is approximately three and one half hours. n3

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n2 The industrial hygienist who inspected Respondent's facility for the Secretary made thirty readings, which averaged 99.6 dbA, in the vicinity of the presses. Respondent's expert measured noise levels of 100 dbA adjacent to the presses, and several dbA higher between presses.

n3 Whether the limits in 29 C.F.R. 1910.95(b)(1) are exceeded depends on both the noise levels and the time of exposure. At 100 dbA, two hours of exposure is permitted. Although Respondent's press runs are occasionally shorter than two hours, most exceed that duration. Thus, on most days, noise levels exceed the limits specified in the standard.

[*3]

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The presses currently in use were installed in 1969. At that time, Respondent recognized that excessive sound levels existed, and instituted a program whereby its pressmen are required to wear earmuffs when the presses are operating. The type of earmuff used, if worn properly, will attenuate noise by at least 20 dbA at every frequency. If worn improperly, lesser attenuation will result. The record indicates that Respondent's policy of requiring the wearing of earmuffs was effectively implemented. n4

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n4 The Secretary's industrial hygienist observed during his inspection that the employees were wearing earmuffs. One of the pressmen testified that he always wore his earmuffs and thought the others did also. Respondent's expert testified that he observed the employees wearing the earmuffs properly, but conceded that the seal between the muffs and the employees' ears could have been improper "to a small degree."

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Respondent engaged the [*4] services of Mr. Knowlton J. Caplan, an engineer with extensive experience in industrial hygiene, to investigate the feasibility of using engineering or administrative controls to reduce noise. After examining the noise problem at Respondent's facility, Mr. Caplan visited the State Journal in Lansing, Michigan. To his knowledge, the press room at the State Journal represented the highest state of the art among newspapers in achieving compliance with the Secretary's noise standard through the use of engineering controls. The purpose of his visit was to determine whether the controls utilized by the State Journal could be feasibility adapted to Respondent's press room.

The State Journal utilizes sound absorbing panels and baffles to reduce the noise levels in its press room. Panels are located around the end of each press, and in locations partially covering the gaps between presses. Additionally, the folder is surrounded by an enclosure, with openings just large enough to permit the printed pages to enter and the folded papers to leave. Mr. Caplan measured the average noise to which the State Journal's pressmen were exposed to be 91 dbA. From making measurements directly adjacent [*5] to the presses, he determined that the State Journal's presses were inherently 2.5 dbA quieter than those at the Great Falls Tribune. He attributed this difference to the fact that the Great Falls Tribune's presses were older. He concluded that, by applying the techniques in use at the State Journal to the Great Falls Tribune, the lowest average noise level which could be achieved was 93.5 dbA. n5 He also concluded that the actual noise level would be somewhat greater due to differences in the arrangements of the machines and in the employees' movements at the two newspapers. He could not, however, determine the amount of increase these factors would cause. Mr. Caplan estimated that the cost of implementing the controls found at the State Journal would be between $100,000 and $150,000.

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n5 Mr. Caplan calculated that, at 93.5 dbA, the permissible duration of exposure permitted by the standard is 4 3/4 hours. In arriving at this figure, he properly interpolated between the figures listed in Table G-16. See Weyerhauser Co., 1231, 4 OSHC 1972, n.11, 1976-77 OSHD para. 21,465 (Jan 13, 1977), pet. for review filed, No. 77-1611 (9th Cir., March 11, 1977).

[*6]

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Mr. Caplan thought that, in general, reduction in noise by engineering means was preferable to reliance on the use of personal protective equipment. He concluded, however, that was not true in this case. He noted that the earmuffs Respondent was currently using could produce attenuation significantly greater than could be achieved by implementing the engineering controls he found at the State Journal, and thus were providing better protection against hearing loss for employees. Considering also that engineering controls would not achieve full compliance with the standard, and would be extremely costly, he concluded that it would not be feasible to implement those controls at the Great Falls Tribune.

Mr. Caplan also investigated the possibility of reducing noise exposure by slowing down the presses. He determined that noise levels could be reduced in this way, but exposure times would be increased by virtue of the necessity to run the presses longer in order to print the same number of papers. His measurements revealed that the increased time of exposure would more than compensate for the reduction [*7] in noise, and would result in an increase in total exposure. He concluded that this approach was therefore not feasible.

The Secretary's industrial hygienist testified as to general methods available to reduce noise. He suggested that sound levels could be reduced by the use of sound absorbing coatings on walls and ceiling, use of acoustical baffles, use of enclosures or barricades around machines, use of a "quiet booth" into which employees could retreat when it is not necessary for them to be near a noisy machine, slowing down the noise-generating process, and rotation of employees to quieter areas in order to decrease their exposure time. This witness was not asked his opinion as to whether any of these methods could be usefully applied in Respondent's press room.

In order to rebut Mr. Caplan's testimony, the Secretary called as a witness a noise control expert who had designed engineering controls for other newspapers, and who had visited Respondent's facility to investigate possible methods of noise reduction there. This witness expressed the opinion that certain techniques would be feasible to reduce the noise in Respondent's press room. The techniques he suggested were [*8] acoustical treatment of the walls and ceiling, partial or total enclosures around the presses, and use of a "quiet booth." n6 He stated, however, that his suggestions represented general noise reduction techniques, and he had not considered which specific controls might be applied to Respondent's operation.

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n6 This witness thought that an alternative course would be to modify the presses to emit less noise. He concluded, however, that reduction of noise through this approach could only be feasibility accomplished by the manufacturers of the presses.

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The Secretary contends that, in order to establish a prima facie case of a violation of 29 C.F.R. 1910.95(b)(1), he need only show that, in general, engineering or administrative controls to reduce noise are available. He contends that he need not propose or prove the feasibility of a detailed abatement plan, since specific practical decisions relating to abatement should be left to the discretion of the employer. Thus, the Secretary claims that, once he shows the availability [*9] of general noise control techniques, the burden shifts to the Respondent to show that such techniques are not feasible in its operation. The Secretary contends that, in this case, Respondent did not rebut his prima facie case, and that a violation was therefore proven.

The burden of proving that an employer has violated a standard lies with the Secretary. 29 C.F.R. 2200.73. Thus, in order to establish a violation of 29 C.F.R. 1910.95(b)(1) when employees are using personal protective equipment, the Secretary must show that the employer failed to utilize feasible engineering or administrative controls to reduce noise. Continental Can Co., 76 OSAHRC 109/A2, 4 OSHC 1541, 1976-77 OSHD para. 21,009 (1976), pet. for review filed, No. 76-3229 (9th Cir., Oct. 19, 1976). That burden is not satisfied simply by a showing that general noise controls exist. The standard is only violated if an employer fails to utilize those controls which are feasible in its operations. Thus, the fact that general noise control techniques exist does not establish that an employer violated the standard. Reynolds Metals Co., 76 OSAHRC 31/C14, 3 OSHC 2051, 1975-76 OSHD para. 20,447 (1976); Love [*10] Box Co., 76 OSAHRC 45/D5, 4 OSHC 1138, 1975-76 OSHD para. 20,588 (1976). The Secretary need not, however. Propose or prove the feasibility of a detailed abatement program. See United Automobile Workers, Local 588 (Ford Motor Co.), 76 OSAHRC 58/B8, 4 OSHC 1243, 1976-77 OSHD para. 20,737 (1976), pet. for review filed, No. 76-1718 (7th Cir., July 23, 1976). He need only show that some controls are feasible in an employer's plant. see Anheuser-Busch, Inc., No. 10609, 4 OSHC 1999, 1976-77 OSHD para. 21,466 (Jan. 13, 1977).

Since the Secretary's witnesses testified only as to the availability of general noise controls, and disclaimed consideration of whether these techniques could be usefully applied in Respondent's press room, their testimony is not sufficient to establish that Respondent violated the standard. Furthermore, there is evidence rebutting the feasibility of some of the controls they suggested. For example, the Secretary's industrial hygienist suggested that slowing down a process would reduce noise levels, but Mr. Caplan's studies showed that, in Respondent's plant, an overall increase in noise exposure would result from slowing the presses. Additionally, [*11] in view of the fact that the pressmen must continually observe the operation of the presses, it is unlikely that rotating employees to quiet areas, as suggested by the industrial hygienist, would be feasible. Furthermore, although the witnesses for the Secretary testified that a "quiet booth" was a generally available control, the mobility required for the pressmen to perform their duties suggests that use of a "quiet booth" would not be feasible. See Love Box Co., supra.

Accordingly, the case turns on whether the types of controls in use at the State Journal can be feasibly applied at the Great Falls Tribune. In order for controls to be feasible within the meaning of 29 C.F.R. 1910.95(b)(1), they must be both technologically and economically feasible. Castle & Cooke Foods, No. 10925 (R.C.       1977); Continental Can Co., supra. The testimony of Mr. Caplan establishes that presently available engineering techniques could reduce the average noise level to which Respondent's pressmen are exposed from 100 dbA to approximately 93.5 dbA. This is sufficient to show that controls are technologically feasible. Castle & Cooke Foods, supra.

Whether the controls are [*12] economically feasible depends on whether the benefits they will achieve are sufficient to justify their cost. Continental Can Co., supra. In applying this test in Castle & Cooke Foods, supra, we concluded that controls capable of attaining a reduction from 100 to 90 dbA for an 8 hour day were not economically feasible when, for each employee benefited, they would cost $3,100 to install and result in increased annual costs due to production losses and maintenance of $1,100. In this case, the benefits would be considerably less. Noise levels would be reduced from 100 to 93.5 rather than 90dbA. Furthermore, Respondent's pressmen are currently exposed to 100 dbA for an average of only 3 1/2 hours per day thus the reduction in exposure time is only 1 1/2 hours since the standard permits exposure for 2 hours at 100 dbA. Finally in this regard we note that muffs would still have to be used on those days where the press run is over 4 3/4 hours.

According to the uncontradicted testimony of Mr. Caplan, the cost of installing the controls would be a minimum of $100,000. Mr. Caplan did not identify any continuing costs associated with the controls, and we therefore assume that [*13] any such costs are negligible. As a maximum of eight employees work in the pressroom, the cost per employee of installing controls is $12,500.

This cost cannot be compared directly to the costs in Castle & Cooke, which included both an initial cost and an annual cost. n7 A precise comparison, however, is not necessary. In view of the relatively slight benefits which controls will achieve in this case, we conclude that, under the criteria discussed in Castle & Cooke, the cost is clearly excessive, and that the controls are not economically feasible.

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n7 An approximate comparison could be obtained by capitalizing the annual cost factor in Castle & Cooke. For example, at an interest rate of 10%, an annual cost of $1,100 would be equivalent to a capital investment of $11,000. At other interest rates, a different figure would be obtained. Different tax consequences of capital investments and operating expenses may also affect the comparison.

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Accordingly, the citation for violation of 29 C.F.R. 1910.95(b)(1) [*14] is vacated.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I agree with the conclusion in the lead opinion that complainant's burden of proof is not satisfied simply by showing that general noise controls exist. However, I would go further, as did Judge Morris in his decision, which is attached hereto as Appendix A, and hold that complainant must establish that feasible controls existed which would have reduced employee exposure to noise to the acceptable levels specified in Table G-16. Secretary v. Reynolds Metals Co., OSAHRC Docket No. 4385, December 10, 1975 (concurring opinion). Furthermore, it must be shown that the implementation of such controls were feasible for the particular worksite and operations of the cited employer. See Secretary v. West Point Pepperell, Inc., OSAHRC Docket No. 8255, April 18, 1977.

I also agree with Chairman Barnako's determination that the citation should be vacated because the evidence fails to establish that engineering controls are economically feasible. Moreover, there can be no violation of 29 C.F.R. 1910.95(b)(1) when, as here, employee exposure to noise is reduced to acceptable levels by the use of personal protective equipment. [*15] Secretary v. Turner Co., OSAHRC Docket No. 3635, August 24, 1976 (dissenting opinion).

In this case, if the suggested controls were instituted and a reduction to 93.5 dBA was achieved, employees would still be exposed to noise levels for durations that exceeded the permissible limits in the standard for a significant portion of respondent's press runs. n8 For those runs, protective equipment would still have to be worn to comply with the standard. Obviously, under such circumstances a requirement that engineering controls be installed would be useless - and beyond the authority of both the Secretary of Labor and this Commission - since it could not achieve compliance with the regulation. The only known abatement requirement on these facts is the use of personal protective equipment.

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n8 An employee exposed to 93.5 dBA would have a maximum allowable exposure time of 4 hours and 45 minutes under the standard. The press runs on 13 out of the 60 days prior to the hearing exceeded 4 hours and 45 minutes.

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DISSENTBY: CLEARY

DISSENT:

[*16]

CLEARY, Commissioner, DISSENTING:

The majority's action in this case is consistent with the reading of 29 CFR 1910.95(b)(1) in our divided decision in Continental Can Co., Inc., 4 BNA OSHC 1541, 1976-77 CCH OSHD para. 21,009 (No. 3973, 1976). The experience in the present case, as well as that in Castle & Cooke Foods (No. 10925, May 19, 1977), demonstrates the intrinsic weakness of Continental Can. Therefore, I urge my colleagues not to adhere mechanically to their incorrect course, but to alter our precedent in light of experience. Cf. General Electric Co., 3 BNA OSHC 1031, 1974-75 CCH OSHD para. 19,567 (No. 2739, 1975), rev'd, 540 F.2d 67 (2d Cir. 1976).

The majority correctly concludes that in respondent's pressroom "[o]n most days, noise levels exceed the limits specified in the standard." Its conclusion that the evidence shows that engineering controls are technologically feasible, is also correct. n9 It errs, however, in failing to find that the establishment of the foregoing two facts is all that is necessary to trigger respondent's duty under 1910.95(b)(1) to "commence a program aimed at reducing noise levels by engineering controls." Continental [*17] Can Co., Inc., supra (dissenting opinion).

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n9 Although the lead opinion concludes that technological feasibility has been established, it does so on the basis of testimony by respondent's witness. It states that the testimony of the Secretary's witnesses "is not sufficient to establish that respondent violated the standard." I disagree. The general availability of feasible noise controls was established by the Secretary's witnesses. From this, feasibility in the particular plant may be deduced. It is relevant circumstantial evidence of the fact to be proved. See Fed. R. Evid. 401. See also, Reynolds Metals Co., 3 BNA OSHC 2051, 1975-76 CCH OSHD para. 20,447 (No. 1551, 1976) (Cleary, Commissioner, dissenting).

The burden of proof imposed on the Secretary by the majority "defies common sense" in that it requires the Secretary "to establish conclusively in every noise case involving engineering controls that proven noise reduction techniques exist, that they will be completely effective in an employer's particular facility, and that they will achieve a specific overall noise reduction at the worksite." West Point Pepperell, Inc., (No. 8255, April 18, 1977) (Cleary, Commissioner, dissenting).

[*18]

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Instead, my colleagues undertake to determine whether the implementation of engineering controls would be "economically feasible," or, in their cost-benefit jargon, "whether the benefits [engineering controls] will achieve are sufficient to justify their costs." This course of action is fundamentally wrong. In my view,

the cost of abatement is not relevant in the determination of whether an employer is required to abate excessive noise levels. Cost considerations are relevant only in determining the pace at which an abatement program should proceed. As such, cost factors may play a role in fashioning an appropriate abatement period.

Id. 4 BNA OSHC at 1550, 1976-77 CCH OSHD para. 21,009 at 25,259.

If an employer affirmatively establishes that economic hardship may result from the development and implementation of appropriate engineering controls, this Commission may adjust the abatement period under section 10(c) of the Act.

Due to the fact that this case was heard and decided prior to the Commission decision in Continental Can, it is not surprising that there is a paucity of evidence relevant [*19] to economic considerations, except for the estimate by respondent's expert witness that the minimum cost of installing available engineering controls would be about $100,000.

My colleagues seize upon this solitary dollar-figure, proceed to divide it by the number of employees exposed to excessive noise levels, and then conclude that the quotient (per employee cost figure) is "clearly excessive" and therefore "economically unfeasible." This crude approach toward determining the economic feasibility of engineering controls, while possibly appealing in its patent simplicity, roughly considers costs but ignores the benefits of noise control. In other words, it gives no consideration to the serious occupational health problem sought to be remedied by the standard. What about the benefits? How much is loss of hearing worth? We know that a complete loss of hearing in one ear or both ears is generally compensated for in amounts that may well exceed the cost derived from the majority's arithmetic. See 5 U.S.C. 8107 under which, for example, an employee earning $250 per week would be paid a yearly total of $13,000 for complete loss of hearing in one ear, and after the year additional [*20] compensation for partial disability at two-thirds of the difference between his monthly pay and wage-earning capacity.

The evidence of record shows that respondent's employees are exposed to noise levels in excess of those permitted by the standard. It also shows that the noise could be reduced significantly n10 through the use of feasible engineering controls. Respondent is, therefore, required to implement these controls. Accepting the estimate of respondent's witness as to the cost of installing such controls, and need of respondent to spread the costs over an appropriate period of time certainly could be determined in a proceeding to modify the abatement period.

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n10 The majority accepts the testimony of respondent's expert that implementation of available engineering controls would reduce the average noise level in respondent's pressroom from 100 dbA to about 93.5 dbA, a reduction of 6.5 dbA. As was recognized in Continental Can Co., supra, due to the logarithmic nature of the decibel scale, a reduction of only 3 dbA decreases the air pressure by about 50 percent, and is, therefore, a "clearly significant" reduction.

Nevertheless, in the instant case the lead opinion categorizes the benefits derived from a 6.5 dbA reduction as "relatively slight", and concludes that engineering controls therefore need not be implemented. This anomalous result is indicative of the manner in which application of a rough cost-benefit analysis effectively subverts the express mandate of the noise standard that engineering and administrative controls be used as the primary forms of compliance. Continental Can Co., supra (dissenting opinion). See Turner Co., Div. of Olin Corp., 4 BNA OSHC 1554, 1976-77 CCH OSHD para. 21,023 (No. 3635, 1976), petition for review docketed, No. 76-2025, 7th Cir., October 18, 1976.

[*21]

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Appendix A

DECISION AND ORDER

James H. Barkley, Office of Henry C. Mahlman, Associate Regional Solicitor, United States Department of Labor, for the Secretary of Labor

Ludwig B. Gartner, Jr., for the Respondent

Hearing conducted August 13, 1974 at Great Falls, Montana, Judge John J. Morris presiding.

Morris, Judge, OSAHRC: In an alleged violation of 29 CFR 1910.95(b)(1) the case law clearly places the burden of proof on complainant to prove the feasibility of administrative or engineering controls. Further such controls must reduce the exposure of the sound levels to within acceptable limits. For cases holding this general proposition, see Secretary v. C.F. & I. Steel Corporation, OSAHRC Docket No. 6027 (Final order March 13, 1975); Secretary v. Advance Publications, Inc., 4 OSAHRC 1348 (1973); Secretary v. International Paper Company, 12 OSAHRC 243 (1974). In this case respondent's persuasive evidence as to the lack of feasible administrative or engineering controls overcame complainant's case. This ruling requires vacation of item 2 of citation 2 for the alleged non-serious violation [*22] of the noise standard together with the proposed civil penalty of $30.

By way of background: respondent, a newspaper publisher, seeks an adjudication under 29 U.S.C. 659(c). The contested citation issued by complainant on January 23, 1974 under the authority of 29 U.S.C. 658. The allegations indicate an inspection at a worksite in Great Falls, Montana, disclosed a non-serious violation of 29 CFR 1910.95(b)(1). The foregoing standard promulgated by complainant provides:

1910.95 Occupational noise exposure.

(b)(1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

The table referred to in the standard provides as follows:

Duration per day,

Sound level d.b.a.

hours

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

Citation number 2, item 2, describes the alleged violation in the following terms:

Feasible administrative or engineering controls [*23] were not being utilized to reduce noise exposure to four pressmen in the pressroom to within the levels of Table G-16.

The evidence: Complainant's industrial hygienist inspected respondent's rectangular pressroom which contained five printing presses (Tr. 9, 10, 11). During the running of the presses an approved sound level meter, set on the "A" network at slow response, measured the sound level on 15 minute intervals. The measurements spanned 3 hours 54 minutes. (Tr. 11, 12, 14, 15, 45-46, 58.) Essentially all sound measurements were on the press floor (Tr. 16, 19-20). Thirty readings averaged 99.6 d.b.a. (Tr. 21, 23, 48, 59). After a two-decibel credit (for a plus or minus accuracy of the meter) the computation was reduced to 97.6. Two hours 51 minutes constitutes the allowable exposure after such credit (Tr. 24-25, 49-50). Four employees ran the presses in the test period; the compliance officer failed to observe the use of any engineering controls or administrative controls to reduce the sound level (Tr. 26-27, 39).

By way of feasible controls complainant suggested slowing the work process, a substitute process, rotation of employees, or installation of sound absorbent [*24] material. (Tr. 28, 31, 54-55) The results obtainable by the use of sound absorbing material or by rotating employees were unknown (Tr. 44, 54-55). The parties stipulated complainant's evidence consisted of general engineering approaches. No attempt was made to connect complainant's suggestions to respondent's pressroom or any existent situation. (Tr. 57, 68, 179, 181, 182.) Complainant's expert attested to the accuracy of 100 monitored readings (Tr. 174). These readings averaged 103 d.b.a. on the south side and 102 d.b.a. on the north side of the main pressroom (Tr. 175-176). Complainant's expert had not considered the type of specific controls available to bring respondent's worksite into compliance although he engineered noise control devices at newspaper locations in Texas, Michigan and Arizona (Tr. 194-195, 180-181).

Respondent recorded the length of its pressruns for a 60 day period. The runs averaged 3 hours 23 minutes (Tr. 91-92, resp's. ex. D-1 thru D-61, resp's. ex. G). Respondent's expert witness indicated his familiarity with the highest state of the art of engineering and administrative control measures as they relate to newspaper presses (Tr. 95-97; resp's. ex. [*25] G). He had visited the State Journal newspaper in Lansing, Michigan as the manufacturer of the presses there had advertised that the installation met OSHA standards (Tr. 103-105). In Lansing, Michigan the worksite contained dissimilar presses (Tr. 105). However, by adding a closure, sound barriers, absorbers and controls similar to Lansing respondent's pressroom noise levels could be reduced to 93.5 decibels (Tr. 105, 131). The reduction to 93.5 decibels would be the best reduction possible; other related problems would increase the noise level. (Tr. 134-135, 137.) The highest state of the art reduced the sound level on short press run days, but failed to reduce it on long pressrun days (Tr. 108-111). In twenty-one of the sixty days recorded the noise levels exceeded the exposure permitted under the standard (Tr. 133, 134; resp's ex. D-61). Respondent's evidence as to dosimeter measurements of noise and time level exposure and complainant's cross-examination, have little relevancy as the standard does not employ dosimeter measurements (Tr. 140, 141, 149-154).

Through its detailed factual analysis and comparison with other worksites respondent's evidence establishes the lack [*26] of feasible engineering and administrative controls. The controls available fail to reduce the noise exposure even for a substantial portion of respondent's activities. Complainant's expert evidence lacks such comparative support. The similarities between, and the results of, noise control installations at various other locations might well have constituted persuasive evidence (Tr. 180-181). However, such supportive datail was not developed.

Complainant relies on Secretary v. Union Camp Corporation (1974) 8 OSAHRC 31 and Secretary v. Boise Cascade. OSAHRC Docket No. 802 in support of his position. In Union Camp Corporation Judge James J. Burroughs dealt with issues of whether 29 CFR 1910.95(b)(1) was unconstitutionally vague and whether the citation violated the "particularity" requirements of 29 U.S.C. 658(a). Union Camp Corporation fails to contitute authority for the propositions urged by complainant. Secretary v. Boise Cascade, OSAHRC Docket Number 802 decided by Judge Paul E. Dixon is pending on review; hence, it cannot be considered as authority at this time.

Certain matters of evidence and procedure require discussion. Respondent offered extensive [*27] evidence (over complainant's continuing objection) relating to the use of ear muffs by respondent's employees (Tr. 73, 74, 78, 79, 89; resp's. ex. B). As noted previously in this decision, the description of the alleged violation thrusts complainant's case in the direction of administrative or engineering controls. The scope of the citation rendered testimony regarding ear muffs generally inadmissible as such evidence constituted irrelevant matter. Testimony relating to the use of ear muffs could be offered as bearing on the statutory term of "good faith". However, it was not offered for such purpose hence the evidence was irrelevant and complainant's objection correctly raised the point. n1

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n1 Caveat relative to personal protective equipment such as ear muffs: in Boise Cascade, supra, an issue on review is whether reduction to acceptable noise levels by the use of personal protective equipment places a respondent in compliance with 29 CFR 1910.95(b)(1).

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An additional issue relates to presentation of a [*28] witness. In rebuttal complainant's expert testified as to sound measurements he recorded at the worksite and he further stated his ultimate opinion on the facts (Tr. 174-183). Procedurally the above testimony should be presented in complainant's case in chief. As noted in Jones on Evidence (6th Ed, 1972) Chapter 24, page 74-75:

When the burden of proving any matter is cast upon a party by the pleadings, he must generally introduce, in the first instance, all the evidence upon which he relies; he may not, after going into part of his case, reserve the residue of his evidence for a subsequent opportunity.

To like effect see Richardson on Evidence, 9th Edition, 528; Wigmore on Evidence, 3rd Edition, 1940 1873, pages 510-511). Complainant's argument that the Administrative Procedure Act, 5 U.S.C. 556(d), authorizes rebuttal evidence is a correct statement of law, but such rebuttal must be as outlined above. Complainant's expert testimony concerning the relative ineffectiveness of dosimeter readings was proper rebuttal and it illustrates the rule. A portion of respondent's case relied on dosimeter readings. Complainant then rebutted such issue. In any event the [*29] ultimate conclusion in this decision rests upon the total record.

FINDINGS OF FACT

1. Respondent admits that it is an employer subject to the terms of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.), (Tr. 5; Complainant; Answer).

2. Four of respondent's employees were at the worksite during the operation of the presses (Tr. 26).

3. Applying the highest state of the art of noise control at worksite would reduce the noise pressure level to 93.5 decibels (Tr. 131).

4. The average pressruns at the respondent'sworksite was 3 hours 23 minutes with half of the runs exceeding that time (Tr. 133).

5. On 21 days out of 60, the pressruns exceeded the allowable exposure under the terms of the standard (Tr. 133).

6. The 93.5 decibel level, set forth in paragraph 3 above, is the best reduction possible; other problems would increase the noisre pressure level (Tr. 137).

7. The record fails to establish that feasible administrative or engineering controls are available which would enable respondent to reduce the noise level within the guide lines of Table G-16 for a substantial portion of respondent's operation (totality of the record).

CONCLUSIONS [*30]

1. Respondent was at all times herein engaged in a business affecting commerce within the meaning of 29 U.S.C. 652, and is subject to the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (Facts 1, 2)

2. Respondent is and was at all times herein an employer within the meaning of 29 U.S.C. 652 (5) and subject to the provisions thereof and the standards promulgated under 29 U.S.C. 655. (Facts 1, 2)

3. Respondent did not violate 29 CFR 1910.95(b)(1). (Facts 3, 4, 5, 6, 7)

4. Complainant has the burden of proof to establish that feasible administrative or engineering controls would lower the noise pressure level into compliance with Table G-16.

ORDER

Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED and ADJUDGED as follows:

1. Item 2 of citation number 2, for the alleged violation of 29 CFR 1910.95(b)(1) is vacated.

2. The proposed civil penalty of $30 for the violation alleged in the preceding paragraph is vacated.

SO ORDERED in the City and County of Denver, Colorado. [*31]

John J. Morris, Judge, OSAHRC

Dated: May 27, 1975