OSHRC Docket No. 78-1539


Before:  BUCKLEY, Chairman; and CLEARY, Commissioner.


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

At issue in this case is whether Administrative Law Judge Ben D. Worcester erred in finding that New England Container Company had not "repeatedly" violated 29 C.F.R. 1910.106(e)(2)(iv)(d),[[1]] and in vacating citation items alleging that New England violated 29 C.F.R. 1910.95(a) and (b)(1).[[2]]  Chairman Buckley and Commissioner Cleary disagree as to the disposition of the items on review.

Item 2:  Self-closing valves
Item 2 alleges that New England failed to equip 55-gallon drums of flammable liquid with self-closing valves, contrary to section 1910.106(e)(2)(iv)(d).  The Secretary characterized the violation as repeated because a 1976 citation involving a violation of the same standard at the same location had become a final order of the Commission before the alleged violation occurred in 1978.  He did not propose that a penalty be assessed, however.  During the 1978 inspection, the drums were not equipped with self-closing valves.  The drums had been so equipped but the valves broke two weeks before the inspection and new valves were on order.  The judge found New England in violation, but found the violation "at most . . . other than serious, one in which no penalty should be assessed."

Chairman Buckley would affirm the judge's decision.  He finds that New England did not "repeatedly" violate section 1910.106(e)(2)(iv)(d) within the meaning of section 17(a) of the Act, 29 U.S.C. 666(a).[[3]]  Under the Commission's decision in Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD 23,294 (No. 16183, 1979), an employer has repeatedly violated a standard under section 17(a) of the Act, 29 U.S.C. 666(a), if, at the time of the alleged violation, there was a Commission final order against the same employer for a "substantially similar" violation.[[4]]  In determining whether two violations are so "substantially similar" as to warrant a finding that an employer "repeatedly" violated the Act, the purpose underlying the test must be borne in mind.  Potlatch attempted to give concrete effect to the congressional intent underlying the flexible penalty scheme in the Act--i.e., to authorize or require progressively higher penalties for progressively greater misconduct.[[5]]  Congress thus coupled violations willfully committed with those repeatedly committed and authorized for both a ten-fold increase in the potential penalty.  By specifying this hierarchical system of penalties, Congress evidently intended that misconduct engaged in repeatedly was either circumstantial evidence of willfulness, or of itself was of a higher order requiring a greater deterrent penalty.  See Bethlehem Steel Corp. v. OSHRC, 540 F.2d 157, 161-62 (3d Cir. 1975).  When such a pattern of misconduct occurs, the employer may require the greater incentive of an increased penalty to comply with standards.

Chairman Buckley finds no such pattern of misconduct here.  The self-closing valves were in place but had worn out shortly before the inspection, and New England was awaiting the delivery of replacements.  Certainly it cannot be said that New England's failure to have replacements on hand when the valves unexpectedly failed is representative of a pattern of misconduct, nor does it demonstrate conduct substantially similar to the previous violation when New England did not have or use self-closing valves. Indeed, the violation in this instance is an example of the "purely inadvertent recurrence" that the court in George Hyman Construction Co. v. OSHRC, 582 F.2d 834, 841 (4th Cir. 1978), cautioned should not be the basis for a repeat violation citation.  It is also apparent that New England does not require any greater incentive to comply with the standard.  It had been in compliance before the inspection and would have been in compliance on the day of the inspection but for the failure of the valves and its shortage of replacements.  Indeed, the Secretary acknowledged that New England needed no additional incentive to comply with section 1910.106(e)(2)(iv)(d), for he did not even propose that a penalty be assessed.  Chairman Buckley would therefore affirm the judge's characterization of the violation of section 1920.106(e)(2)(iv)(d) as other than serious and would assess no penalty.

Commissioner Cleary would find the violation to be repeated.  New England violated section 1910.106(e)(2)(iv)(d) by failing to equip drums containing flammable materials with self-closing valves.  The citation it received in 1976 for violating the same standard has become a final order of the Commission.

In Potlatch, the Commission held that:

A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.

7 BNA OSHC at 1063, 1979 CCH OSHD at pp. 28,172-3.  If the antecedent and current violations concern the same standard, a prima facie case of substantial similarity has been made out.  Id.  The employer may rebut this prima facie case by showing that the antecedent and current violations concerned disparate hazards and conditions.  Id.  Under Potlatch, the employer's attitude toward compliance with the Act is not relevant to the substantial similarity question. [[7]]  BNA OSHC at 1064, 1979 CCH OSHD at p. 28,173.  The Potlatch test has clearly been met here.  The antecedent and current violations concern the same standard, the same hazard and even the same equipment.  Commissioner Cleary would therefore conclude that the violation was repeated.

Commissioner Cleary observes that this conclusion is compelled by Commission precedent.  The clear and easily applied Potlatch test was announced after the Commission had experienced great difficulties created by the lack of a consistent and authoritative interpretation of "repeated" by both the Commission and the courts.  The issue was thoroughly re-examined and a consensus was reached paring down the significant elements to two--whether a prior violation had become a final order and whether the present violation was substantially similar to it.[[6]]  The Commission characterized a number of factors as relevant only to penalty assessment that previously had been thought relevant to the repeated issue, such as an employer's attitude toward compliance (including "aggravated conduct," and "disregard" and "flouting" of the Act), commonality of supervision, and geographical proximity of violations.  Potlatch does not hold or imply that a pattern of misconduct must be shown to have existed or that the employer's need for greater incentives to comply must be considered when determining whether a violation is repeated.

This is not to say that Commissioner Cleary would not consider the events preceding the violation and the employer's good faith in having ordered replacement valves in assessing a penalty.  See Potlatch Corp., 7 BNA OSHC at 1064, 1979 CCH OSHD at pp. 28,172-3.  In this case he agrees with the Chairman that no penalty should be assessed.

Items 1(a) and (b):  Personal Protective Equipment and Engineering Controls

New England also was cited for repeated violations of sections 1910.95(a) and 1910.95(b)(1).  Item 1(a) alleged that an employee in the blasting machine area was not wearing hearing protection when exposed to excessive sound levels, contrary to section 1910.95(a).  Item 1(b) alleged that the company had not implemented feasible engineering controls to reduce employee exposure in the blasting machine area within permissible limits, contrary to section 1910.95(b)(1).

In its plant, New England reconditions used 55-gallon drums.  After the tops of the used drums are removed, any material remaining is poured out and the residue is burned in an incinerator.  A conveyor belt then takes the drums to the blasting machine area.  When a drum arrives at the blasting area, an employee positions it in a device variously called a pneumatic lifter, a barrel loader or a promoter, which lifts the drum and positions it at the blasting machine.  The blasting machine then shoots metal pellets into the drum to blast off scale and residue.  The noise in the blasting machine area stems from three sources:  the banging and scraping of the metal drums against the metal surface of the conveyor belt; the air exhaust of the pneumatic lifter; and the metal pellets being blasted against the inside walls of the metal drums.

The compliance officer testified that, for six hours, he measured the noise exposure of the operator of the blaster, who was not, wearing personal hearing protection, using an audiometric dosimeter.  The dosimeter showed that the operator had received 138% of the noise dose permissible under the standard.[[7]]  The compliance officer also measured the sound levels at the blaster operator's work station with a sound level meter.  He testified that the sound levels went from a high of 112 dBA to a low of 87 dBA (permissible for any period of time under Table G-16 of the standard).  He stated that the noise from the drums scraping against the conveyor surface was present for about 70% of the time, and was 92 dBA (permissible under the table for 6 hours), with peaks of unspecified duration up to 97 dBA (permissible under the table for 3 hours).  He also stated that the noise levels "at" the pneumatic lifter ranged "anywhere from 97 to 112 [dBA], depending upon the portion of the cycle" of operations being measured. The compliance officer took two sets of sound level readings--one within two feet of the air exhaust of the pneumatic lifter and one near the employee's ear--but he did not state from which set these sound level readings came.  He did not testify what noise level was produced when the drums were blasted with metal pellets.  Although he testified that the work of the blaster operator consumed 4 3/4 hours out of 6 hours on the day of the inspection, he did not state how long any of these levels continued, what portion of the operating cycle they covered or how long each operating cycle was.  He did note that the blasting operation was usually shut down for an hour each day.

The compliance officer recommended the installation of a muffler, which he said would cost between $10 and $50, on the air exhaust of the pneumatic lifter.[[8]]   Though he conceded that this would not reduce the noise from air exhaust on the pneumatic lifter to below 90 dBA, the permissible level for an 8-hour work day, he stated without elaboration that it would reduce the blaster operator's noise exposure to 70% of the permissible dose for 6 hours.  This muffler would affect only the noise from an exhaust on the pneumatic lifter.  It would do nothing to counteract the noise emanating from the conveyor belt or the pellets striking the barrel.

In an effort to, among other things, reduce sound levels after a 1976 inspection of the blasting machine area, New England installed mufflers, redesigned the cylinder on the pneumatic lifter, and installed rubber lining to reduce the noise of the drum as it goes through the blaster.  It also modified that part of the blaster where the drum is uprighted.  New England's vice president testified, based on his extensive experience in the drum reconditioning industry, that the operation cited is inherently noisy and that noise had been reduced "as much as the state of the art allows."  He testified that the air exhaust was neither the sole nor the major source of the noise in the blaster room.

The judge vacated both items, finding that the Secretary had not proved "that the employer, although put on notice that a hazard existed, had failed to correct it."  The judge noted that there was credible testimony that New England had modified its equipment for the purpose of reducing noise in the interval between the 1976 and 1978 inspections, including the installation of a larger piston in the blaster, the installation of mufflers, and the coating with rubber of areas where metal struck against metal.  The judge also found that New England provided and enforced the use of ear plugs.  The judge found that the Secretary failed to prove that New England knew or should have known that the operator was not using hearing protection.

In Chairman Buckley's view, the record does not support the allegation that New England failed to install feasible engineering controls and he would affirm the judge's decision vacating the citation.  Though the Secretary now claims in his brief that sufficient evidence exists to support a finding that one proposed engineering control, a muffler, was feasible, the record does not establish what benefits, if any, will be achieved by use of the muffler.  See Sherwin-Williams Co., 84 OSAHRC , 11 BNA OSHC 2105, 2110, 1984 CCH OSHD 26,986, p. 34,702 (No. 14131, 1984).  The compliance officer's conclusory and unsupported opinion that a muffler could reduce the exposure to the employee to 70% of that permitted by the standard lacks sufficient foundation to justify making such a finding.

Chairman Buckley notes that the noise standard does not regulate the sound level at a noise source but the dose of noise that an employee receives.  To determine the benefit from a proposed engineering control therefore requires a determination of the reduction in noise dose effected by the control.  If an employee is exposed to noise from several sources, it is not ordinarily possible to tell what the dose reduction would be without knowing what sound level was generated at the employee's hearing zone by the noise source to be controlled, the length of exposure to that sound level, and the sound level reduction expected from the control.  If the sound level generated by a source at the employee's hearing zone is not known, it is nevertheless possible to calculate a dose reduction if the sound level generated at the source, the distance of the employee from the source, the amount of time that the source generates noise, and the expected sound level reduction are known.  This record, however, supplies little or no evidence on these factors.

Although the compliance officer testified that the proposed muffler would reduce the blaster operator's exposure to 70% of the permissible dosage, he conceded that he had based this conclusion on "a cursory engineering study."  There is no evidence that the compliance officer considered all of the above-mentioned factors in making his estimate, nor is there evidence of the factors he did consider.  He did not testify to the amount of time that the air exhaust from the pneumatic lifter generated any particular noise level. It is not clear whether the sound levels or 97-112 dBA emanating from that source were measured in the employee's hearing zone or at the exhaust, where they would be higher.  The compliance officer's statement that the air exhaust was the primary noise source in the area was not only contradicted by New England's vice president, but is unsupported by any testimony regarding the noise levels created during blasting or the amount of time that the air exhaust generated noise, both of which are needed to determine the relative contributions of various sources to the blaster operator's noise dose.  The compliance officer also did not testify to the reduction in decibels a muffler could be expected achieve.  The compliance officer's bare conclusion is insufficient to support a finding that the muffler would have any particular effect on the employee's noise dose.  See General Motors Corp., 81 OSAHRC 30/E13, 9 BNA OSHC 1575, 1577, 1981 CCH OSHD 25,280, p. 31,239 (No. 78-2894, 1981); Hurlock Roofing Co., 79 OSAHRC 7/A2, 7 BNA OSHC 1108, 1979 CCH OSHD 23,358, p. 28,267 (No. 76-357, 1979).

Nothing in the Act or the standard requires New England to make yet another piecemeal change in its equipment when it has not been shown that the change would benefit employees.[[9]]  Because the Secretary failed to prove by a preponderance of the evidence that the control he advocated would achieve some benefits, Chairman Buckley cannot find that the benefits of the control are justified by its cost.  Chairman Buckley would therefore conclude that the Secretary has failed to establish by a preponderance of the evidence that engineering controls are feasible and would affirm the judge's disposition of item 1(b).

With respect to item 1(a), Chairman Buckley also would affirm the judge's finding that the Secretary failed to show that New England knew or with the exercise of reasonable diligence could have known of the blaster operator's failure to wear personal hearing protection.  See, e.g., Scheel Construction, Inc., 76 OSAHRC 38/B6, 4 BNA OSHC 1824, 1826, 1976-77 CCH OSHD 21,263, p. 25,560 (No. 8687, 1976)(in all cases the Secretary must prove by a preponderance actual or constructive knowledge on the part of the employer).  It is clear that New England did not have actual knowledge that the temporary operator was not wearing earplugs.  There is no evidence to show that either New England's vice-president or its plant manager knew that the operator was not wearing hearing protection.  Nor does the evidence show that with reasonable diligence New England could have known that the operator was not wearing hearing protection.  New England's vice-president testified that earplugs were available and that the regular blaster operator used them consistently and regularly.  The plant manager testified that employees were told that they could be suspended if they did not use hearing protection.  The burden was on the Secretary to establish by a preponderance of the evidence that New England did not exercise reasonable diligence.  Although the compliance officer testified that the operator told him he did not usually wear earplugs, the record indicates that this employee was only temporarily substituting for the regular operator.  There is no evidence that the operator's regular duties required him to wear earplugs or that Costa could reasonably have known that the replacement operator was not wearing earplugs.  The evidence is insufficient to establish that New England should have known of the operator's failure to wear the plugs.

Commissioner Cleary would find that the evidence demonstrates that New England failed to implement engineering controls to reduce sound levels below Table G-16 levels and that such controls were feasible.  He would therefore find a violation of section 1910.95(b)(1) and affirm item 1(b).  In his view, engineering controls are economically feasible if they do not threaten an employer's long-term profitability and competitiveness or, in the event of economic threat, do so because the employer has lagged behind its industry in providing noise protection for employees.  Sherwin-Williams Co., 11 BNA at 2112, 1984 CCH OSHD at p. 34,704 (dissenting opinion).  It is not disputed that New England's employee was exposed to 138% of his permissible noise exposure.  The judge found that "[t]here is credible and reliable evidence, based upon the very thorough testing performed by the Secretary's inspector, Mitchell, that [the] temporary employee, Miller was exposed to excess noise at the time of the March 1978 inspection and that he was not wearing ear floss or other hearing protection."

The uncontradicted testimony of the compliance officer was clearly sufficient to demonstrate that the installation of a muffler costing $10-50 on the pneumatic lifter would reduce the operator's exposure to 70% of the permissible dose.[[10]]  To determine what engineering controls would be feasible, the compliance officer measured sound levels at various sources with a precision sound level meter.  He "determined what the sound level was during different parts of the cycle, and from that how much time in total . . . that sound level was present during the . . . day."   Having determined the portion of the blaster operator's total noise dose contributed by the exhaust from the pneumatic lifter, it would have been a simple matter for the compliance officer to compute the noise reduction a muffler would accomplish and determine that it would reduce the blaster operator's noise dose to 70% of that permitted by the standard.  Thus, although he did not outline every step in his calculations, the compliance officer undoubtedly calculated the dose reduction by taking into account the sound level generated at the employee's hearing zone by the exhaust from the pneumatic lifter, the amount of time it generated that sound level, and the sound level reduction expected from the control.  Had the parties focussed more directly on the effects of the engineering controls suggested by the Secretary, the compliance officer might have been called on to go over these computations in painstaking detail.  See Quick v. Martin, 397 F.2d 644, 647 (D.C. Cir. 1968).  However, standing alone, the compliance officer's testimony is certainly sufficient to establish that the benefit of the installation of a muffler costing only $10-50 would be to reduce the blaster operator's noise dose to 70% of that permitted by the standard.  Commissioner Cleary would therefore conclude that the controls are economically feasible.

Commissioner Cleary also would find that the controls are feasible under current Commission precedent.  Under the lead opinion in Sherwin-Williams, engineering controls are economically feasible if the benefit that will be achieved by the controls justify the cost of implementing them.  11 BNA at 2110, 1984 CCH OSHD at p. 34,702.  It is apparent that the expenditure of a mere $10-50 is justified to reduce an employee's daily exposure far below Table G-16 levels.

Commissioner Cleary would find a violation of section 1910.95(a) and affirm item 1(a).  He finds that the judge erred in finding that the employer is not responsible for the operator's failure to wear earplugs.  When an employer relies on a workrule to achieve compliance with the standard, he must take steps to discover violations and effectively enforce the rule when infractions are discovered.  See R. Zoppo Co., 81 OSAHRC 18/A2, 9 BNA OSHC 1392, 1395, 1981 CCH OSHD 25,230, p. 31,183 (No. 14884, 1981).  There is no indication that New England attempted to enforce the rule requiring the wearing of hearing protection. Biano, the company vice-president, testified that not all employees wore earplugs.  He stated that employees neglected to wear the plugs even after he "[t]old them to get them."   Biano couldn't "think of a procedure we have for disciplining people for not wearing them."  For these reasons, Commissioner Cleary concludes that New England failed to adequately implement its safety rule and thus could, with the exercise of reasonable diligence, have known of the violation.  See Marson Corp., 82 OSAHRC 29/C4, 10 BNA OSHC 1660, 1663, 1982 CCH OSHD 26,075, p. 32,804 (No. 78-3491, 1982).

Commissioner Cleary would also characterize New England's violations of sections 1910.95(a) and (b)(1) as repeated because the Potlatch test was met.   There was a 1976 Commission final order involving the same standards and excessive noise from the same machine.

Under section 12(f) of the Act, 29 U.S.C. 661(e), official action can be taken by the Commission with the affirmative vote of at least two members.  To resolve their impasse and permit a resolution of this long-pending case, Chairman Buckley and Commissioner Cleary have agreed to affirm the judge's decision but accord it the precedential value of an unreviewed judge's decision.[[11]]  See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).

Accordingly, the judge's decision is affirmed.


Ray H. Darling, Jr.
Executive Secretary

DATED:  DEC 28 1984


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[[1]] This standard provides:

1910.106 Flammable and combustible liquids.
* * *
(e) Industrial Plants--
* * *
(2) Incidental storage or use of flammable and combustible liquids--
* * *
(iv) Handling liquids at point of final use.

(d) Flammable or combustible liquids shall be drawn from or transferred into vessels, containers, or portable tanks within a building only through a closed piping system, from safety cans, by means of a device drawing through the top, or from a container or portable tanks by gravity through an approved self-closing valve.   Transferring by means of air pressure on the container or portable tanks shall be prohibited.

[[2]] These standards provide in part:

1910.95 Occupational Noise Exposure.
(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.
* * *
(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.
* * *

Duration per day, hours
level dBA
8.............................................................. 90
6.............................................................. 92
4.............................................................. 95
3.............................................................. 97
2............................................................ 100
1 1/2 ...................................................... 102
1............................................................. 105
1/2.......................................................... 110
1/4 or less................................................ 115

[[1]] 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.

[[3]] Section 17(a) of the Act provides:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

[[4]] Chairman Buckley finds it unnecessary here to decide whether the test enunciated in Potlatch is correct, particularly with respect to whether a single prior Commission final order is a sufficient basis for characterizing a violation as one "repeatedly" done regardless of when or where the prior violation occurred.

[[5]] Under the scheme of the Act, no penalty is assessed for de minimis violation.  A penalty of up to $1,000 may be assessed for a non-serious violation.   A penalty of up to $1,000 must be assessed for a serious violation.  A penalty of up to $10,000 may be assessed for a willful violation or against one who violates a standard repeatedly.  A penalty of up to $1,000 per day may be assessed for failing to correct a violation.  Sections 9(a) and 17(a) - (d), 29 U.S.C. 658(a) and 666(a)-(d).

[[6]] Potlatch has been followed in every circuit where the "repeated" issue has been examined in its light. See J.L. Foti Constr. Co. v. OSHRC, 687 F.2d 853 (6th Cir. 1982); Dun-Par Engineered Form Co. v. Marshall, 676 F.2d 1333 (10th Cir. 1982); Willamette Iron & Steel Co. v. Secretary of Labor, 10 BNA OSHC 1477 (9th Cir. 1982)(unpublished); Communications, Inc. v. Marshall, 672 F.2d 893 (D.C. Cir. 1981).  In Bunge Corp. v. Secretary of Labor, 638 F.2d 831 (5th Cir. 1981), the Fifth Circuit noted its general agreement with Potlatch, but disagreed only as to the allocation of the burden of proof, holding that the Secretary must show that conditions were substantially similar.

[[7]] A dosimeter displays the percentage of the permissible dose of noise that an employee received during the time he wore the dosimeter.  Thus, a 200% reading on a dosimeter indicates that the employee had been exposed to twice the dose permitted by the noise standard; an employee exposed to 100 dBA for 1 hour would be shown to have received 50% of the permissible dose.  The circuitry of a dosimeter is so designed that it in effect registers the duration of each sound level over 89 dBA and determines the ratio of that duration to the permissible duration for that sound level, which is given in Table G-16 of the standard.  It then, in effect, adds that ratio to all other such ratios, cumulating exposures to varying noise levels in the manner stated by the footnote to the table.  When the dosimeter is read, it gives the total of those ratios in percentage form.  An employee might, for example, be exposed to sound levels of 110 dBA for 1/2 hour, 97 dBA for 1 hour, and no sound over 89 dBA for 6 hours, resulting in a dosimeter reading of 133%.  One can calculate that exposure to a constant noise level of 92.1 dBA over 8 hours would result in a dose of 133%.   However, because a dosimeter does not retain each sound level and its duration, one cannot determine from a dosimeter reading what each sound level was and how long it lasted.

[[8]] Although the compliance officer recommended other steps, some were shown to be technologically infeasible, such as coating the metal conveyor belt.  Of the others, the compliance officer supplied no estimate of the possible benefit.   Therefore, the discussion is confined to the compliance officer's proposal for a muffler on the air exhaust of the pneumatic lifter.

[[9]] New England was required to implement engineering changes following the 1976 inspection--changes which did not reduce employee exposure to within Table G-16 levels.  The Secretary cannot now seek to impose additional engineering requirements without demonstrating that the control will accomplish its intended purpose of bringing New England into compliance without the need for earplugs.  Any different result opens the door for the Secretary to revisit New England's facility and find a violation until such times as the amalgam of controls does achieve its purpose.

[[10]] The record indicates that the compliance officers who conducted the 1976 inspection, the compliance officer who conducted the 1978 inspection, and Aetna, New England's insurer, all identified exhaust from the pneumatic lifter as the primary noise source. New England's vice-president disagreed with this view.  However, New England never conducted a noise survey until after it installed the disputed muffler on the pneumatic lifter following the 1978 inspection.  Although the record is silent on the results of New England's noise survey, Commissioner Cleary would infer from the installation of the muffler that it was a feasible engineering control.  Cf. Fed. R. Evid. 407.

[[11]] As established by the Act, the Commission is composed of three members.  Section 12(a), 29 U.S.C. 661(a).  Presently, the Commission has two members as a result of a vacancy.