SECRETARY OF LABOR,
OSHRC Docket No. 80-5966
The Parties' stipulation and settlement agreement is approved. This order is issued pursuant to a delegation of authority to the Executive Secretary. 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).
FOR THE COMMISSION
Ray H. Darling, Jr.
Dated: November 18, 1987
SECRETARY OF LABOR,
OSHRC Docket No. 80-5966
DECISION AND ORDER
FRANCIS X. LILLY, Esq., Solicitor of Labor,
JOHN SECARAS, Regional Solicitor,
CHRISTOPHER D. WOLFE, Esq., and
JAMES L. BOWERS, Esq., for Raymond J. Donovan, Secretary
of Labor, U.S. Department of Labor, Complainant.
Columbus R. Gangoni, Jr., Esq., and Gerald C. Peterson, Esq.,
David B. Lowe, Esq., Winston & Strawn, Chicago, Illinois,
Attorney for Stewart-Warner Corporation, Respondent.
Mark B. Bigelow, Esq., Chicago, Illinois, Attorney for
United Workers Association, U.E.: Local 1154, Authorized Employee Representative.
This proceeding was commenced pursuant to Section
10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq.,
(hereinafter referred to as the "Act"), wherein Respondent, Stewart-Warner
Corporation, contested a Citation issued by Complainant, Raymond J. Donovan, Secretary of
Labor, U.S. Department of Labor, hereinafter the "Secretary."[[1/]]
The Citation charged Respondent with a repeat violation of the 1980 Occupational Safety and Health Regulations 29 C.F.R. 1910.95(b)(1), entitled Occupational Noise Exposure [[2/]] (hereinafter the "Noise Standard"), in Departments 2, 6, and 75 of its Chicago plant.
FACTS OF CASE
On July 27, 1980, in response to a complaint made by an employee of Respondent alleging exposure to excessive noise levels, Complainant, through one of its compliance officers from the Occupational Safety and Health Administration (hereinafter "compliance officer"), began an inspection of Respondent's facility in Chicago. Such safety and health inspection ended August 7, 1980.
Respondent, at the inspected work site, manufactured or fabricated, among other things, a broad variety of alemite (lubrication) systems, instruments, and related fittings such as automobile hood latch devices, automobile door handles, large oil mist lubricating systems, airless and conventional spray equipment, fluid dispensing pumps, electrical pumps, miscellaneous lubrication fittings, and various speed pressure and tachometer, meters and gauges. (Tr. 2604-2607, Ex. C-25).
The products manufactured by Respondent are precision made and involve exacting tolerances. The manufacturing work requires a high degree of technology, a wide variety of engineering expertise and highly skilled machining operations. The inspection concluded by the Secretary in July 1980, was not the first inspection of Respondent's workplace wherein excessive noise levels were found to exist. In 1975 and again in 1977, safety and health inspections had revealed excessive noise levels to which employees were exposed. The 1977 inspection resulted in the issuance of a Serious Citation which alleged violations of 29 C.F.R. § 1910.95(b)(1), in Departments 1, 2, 6 and 75 of Respondent plant (Ex. C-20); the Citation was not contested and became a final order of the Commission. From time to time requests for modification of abatement were filed; on March 20, 1979 a hearing was held as to abatement date changes, at which time a final abatement date of August 25, 1979, was agreed to by the parties (Ex. C-19, 20, 21).
As a result of the current 1980 inspection, a Repeat Citation was issued to Respondent. This Repeat Citation alleged the existence of excessive noise levels, in violation of the Noise Standard, in Departments 2, 6. and 75. This Citation was contested and is the subject matter of the instant case.
Looking to the individually cited areas we first find Department 2. Department 2 is located on the first floor of Respondent's facility. It is a large open area having exposed concrete walls, floor and ceiling; approximately 71 punch presses are located in this space. Of the 71 punch presses, approximately 41 are referred to as "secondary presses" and 21 are "automatic presses." An automatic press is one wherein the operator loads raw materials into a feeding mechanism and parts are then automatically produced with little employee interaction. The operator merely loads the press with the raw materials and monitors the parts being made to insure that they are being correctly made and properly expelled from the machine. A secondary press is one in which the operator loads an individual piece of raw material or partially produced part into the press, activates the press, and then monitors that the press properly pressed and expelled the part from its dies (Tr. 2616, 2619). Approximately 115 employees are employed in Department 2 (Ex. C-24). The presses with their component high air pressure systems are the main source of the noise levels in this department.
Department 6 is located on the fourth floor of Respondent's facility and occupies approximately 1,200 square feet of space having exposed concrete walls, floor, and ceiling. Within Department 6 are located 35 screw machines of which there are three basic types. A screw machine is a machine in which round metal bars (stock) are fed through rotating dies which then fabricate small machined components. These screw machines are referred to as multi-spindled machines wherein the fabrication of parts is done simultaneously on several of the metal bar stock inserted into the feed portion of the machine. The operation of the screw machines represents the basic source of the noise levels in Department 6 (Ex. C-24). Approximately 42 employees are employed in Department 6 (Ex. C-24).
Department 75 occupies approximately 12,000 square feet of floor space on the third floor of the facility, such area also having exposed concrete walls, floor, and ceiling. Located within this department are 74 multispindled screw machines, benches and grinders and other equipment. The screw machines, known as Davenports, fabricate small machined components on multi-spindled dies from a number of bars of metal being fed into one end of the machine. Approximately 67 employees are assigned to Department 75 (Tr. 327, Exs. C-13, 24). The screw machines appear to be the basic source of the noise levels in this work area.
During relevant times, the Respondent had administered audiometric examinations to its employees. These tests were analyzed by a consultant, engaged by Respondent, with written codes being assigned to the tested employee to indicate whether the individual should be medically referred to an ear specialist. The audiometric exams together with the evaluations were routinely stored in the company safe while never being provided to any of Respondent's employees. No actions or referrals were ever made to doctors based upon the results of the examinations even though the analysis done of these exams recommended that a significant number of employees be seen by a medical ear doctor. (Tr. 76, 77, 78, 96, 97, 2090, 2209, 2211, 2229, 4309, 4310, 4311).
Before discussing the legal and factual issues, the
arguments concerning the application or enforcement of the Noise Standard, and the
economic, and technological feasibility of engineering noise controls proposed for those
cited areas where employees were allegedly exposed to excessive noise levels, it will be
necessary to first review several procedural matters raised by Respondent. It will also be
necessary to dispose of certain factual challenges to the sampling and measuring made by
the Secretary's compliance officer to record the noise levels in the workplace, and to
review certain challenged procedures followed by the compliance officer in taking her
noise level readings.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. CHALLENGE TO COMMISSION JURISDICTION
Respondent argues that the Commission lacks jurisdiction over this matter in that it perceives the Secretary's action to be a continuation of the former Citation proceeding with its successive Petitions for Modification of Abatement proceedings; and that the Secretary's actions herein should not be the subject matter of a new citation (Ex. C-20, 21). Respondent maintains that a settlement agreement had been reached between the parties and, under such settlement agreement, Respondent had determined that further controls were not feasible in accordance with said agreement. Respondent thus reaches the conclusion that this action, in effect, should be an enforcement action of the terms of the settlement agreement and not a newly instituted citation proceeding. Respondent extrapolates on this position arguing that the settlement agreement had not become a final order of the Commission and that the agreement did not specifically grant the Commission jurisdiction to enforce its terms. To bolster its argument, Respondent points out that the past Citation, together with its Petition for Modification of Abatement was made part of these proceedings by their introduction into evidence. Accordingly, goes Respondent's agreement, the current action is an alleged enforcement action of the terms of the settlement agreement, the Commission having no jurisdiction over any matter connected with the alleged 1977 violations since the settlement agreement disposed of same.
While Respondent's argument had never before been raised in this proceeding, except in its post-trial brief, it could thus be considered untimely. We nonetheless, review same, finding Respondent's position to be without any factual or legal merit.
The scenario portrayed by Respondent in this argument
does not fit the facts of this case and in any event hardly makes any sense at all. In the
instant matter, we find that the Complainant, on the basis of an inspection in July and
August of 1980, issued a Repeat Citation for alleged excessive noise levels to which
Respondent's employees were exposed in Departments 2, 6, and 75. While Respondent urges
that the proof of its argument is demonstrated by the fact that the 1977 Citation, and the
Petition for Modification of Abatement proceedings were brought into this matter to
enforce their terms, we find this not to be the case at all. This matter deals with the
Secretary presently litigating the propriety of the Citations issued to Respondent on
September 12, 1980 (Ex. C-74). The prior Citations, referred to by Respondent as the
central core of its argument, were introduced into these proceedings for the sole purpose
of showing knowledge on behalf of the Respondent, feasibility of abatement, and proper
classification of the instant violation as repeat. The Repeat Citation, involved in this
case, by its terms, lists violations occurring on July 24, 1980, and the contest filed by
Respondent vested this Commission with jurisdiction.
II. THE CITATION WAS NOT ISSUED WITHIN 180 DAYS OF THE ALLEGED VIOLATION.
Respondent submits that under Section 9(c) of the Act, and what it referred to as its implementing Regulation, 29 C.F.R. § 1903.14, a citation to be valid and enforceable, must be issued with reasonable promptness, and in any event not more than 180 days after the date of the alleged violation. Additionally, Respondent tells us that for a citation to be valid it must be in writing, describing the nature of the alleged violation, and must state the following:
"that the issuance of a citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest as provided for in the Act or, if contested, unless the citation is affirmed by the Review Commission." 29 C.F.R. § 1903.14(e).
Respondent argues that since the above cited clause was not in the instant Citation, and that a citation containing such a clause was never issued within 180 days of the alleged violation, the Citation is improper and must be dismissed. In support of this argument, Respondent cites several cases holding that regulations duly adopted by an agency have force and effect in law and that an agency is bound by its own regulations. Cf., Union of Concerned Scientists v. AEC, 499 F.2d 1069, 1082 (D.C. Cir. 1974); Service v. Dulles, 364 U.S. 363, 388 (1957); City of Santa Clara v. Andrus, 572 F.2d 660, 669 n. 5 (9th Cir.), cert. denied, 99 S. Ct. 176 (1978); Husky Oil Co. v. Department of Energy, 582 F.2d 644 (TECA. 1978).
We believe Respondent's argument fails for two
reasons. First, the grounds alleged by Respondent for avoiding the Citation are not
included in the Act. Second, after reviewing the face of the Citation we find that the
Secretary, in issuing it, had done so with substantial compliance with the statute and
regulations, and as such, no prejudice to the company resulted by such an omission in the
Citation as charged by Respondent. Chicago Bridge and Iron v. Occupational Safety and
Health Review Commission, 535 F.2d 371 (7th Cir. 1976).
III. THE "CITATION" WAS IMPROPER
Respondent argues that the issuance of a Citation classified as "Repeat" deprived it of its due process rights because the Citation was mischaracterized as repeat, and that by reason of this, it was unable to introduce evidence that the original Citation (1977) was invalid.
Respondent further argues that in order to establish a "repeat" violation, the Secretary was required to show that abatement of the prior alleged violation had been accomplished, citing Braswell Motor Freight Lines, Inc., 5 BNA OSHC 1469, 1977. Respondent argues that since there was no evidence that it had "abated" the alleged violation in Departments 2, 5 and 75, the Citation must be dismissed.
Respondent's argument misses the mark. The instant case deals with the issuance of a Repeat Citation. A Repeat Citation has been denied both by the Review Commission and various U.S. Courts of Appeals as a violation occurring when there was a Commission final order against the same employer for a substantially similar violation. Potlatch Corp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD 23,294; George Hyman Construction Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978); Todd Shipyards Corp. v. Secretary of Labor and OSHRC, 566 F.2d 1327 (9 Cir. 1981); Kent Nowlin Construction Company, Inc. v. OSHRC, 648 F.2nd 1278 (10 Cir. 1981); Bunge Corporation v. Secretary of Labor and OSHRC, 638 F.2nd 831 (5th Cir. 1981). There is no case law or statutary provision predicating the existence of a repeat violation on an employers abatement efforts.
In the instant case there can be little doubt that the Secretary has met the requirements for issuance of a Repeat Citation. In 1977 Respondent was issued, at its same workplace, a Citation for the same violation as that found in the present case (Ex. C-20). That 1977 Citation became a final order of the Commission when Respondent chose not to contest. Accordingly, we find the instant Repeat Citation a valid and fully enforceable citation. The particular facts surrounding the violation in 1977 was found not relevant to the instant violation.
IV. LEGALITY OF THE MEASUREMENT OF NOISE LEVELS
AND EXPOSURE TO ALLEGED EXCESSIVE NOISE LEVELS
The Secretary maintains that it's compliance officer had correctly measured sound levels existing at Respondent's plant and had also correctly measured levels of exposure of Respondent's employees to such noise levels. The Secretary further maintains that these measurements show that employees in Departments 2, 6, and 75 were exposed to noise levels in excess of the permissible levels set forth in the Noise Standard. The noise levels were measured by the compliance officer through use of sound level meters, which measured the noise levels at a particular instant in time, and through what is known as "dosimeters," a device used to measure accumulated exposure to sound levels over a period of time.
Respondent on the other hand argues that there is art
ambiguity in the Noise Standard and that this, coupled with Complainants method of
determining existing sound levels, resulted in error requiring the vacation of the
Citation. Respondent also argues that the noise readings were unreliable and erroneously
measured. This last argument will be discussed separately.
A. Measuring Mixed Sound Levels
Respondent argues that Table G-16 of the Noise Standard (See n. 2) fails to give adequate notice that mixed sound levels can be used to determine employee exposure. Respondent maintains that the method of determining existing sound levels through use of a dosimeter, which measures accumulated sounds from different source of varying levels over a given time period, under the language of the Noise Standard, is constitutionally infirm since the Noise Standard does not require an employer to account for accumulated mixed levels of noise exposure. Next, Respondent argues the inclusion of impact noise levels existing at the plant site was unconstitutionally included in Complainant's findings of employee noise exposure since the Noise Standard, as interpreted by Respondent, does not provide for the inclusion of impact noise in measuring noise exposure.
With respect to Respondent's first argument, that the
noise regulation is not clear and concise in its language, not giving fair warning of the
prohibitive conduct addressed by the standard, i.e., dealing with "accumulative
noise, levels," we find this argument without substance or support. The claim of
ambiguity perceived by Respondent rests upon what it characterizes as a failure within the
Standard to give adequate notice that "accumulative mixed sound levels" could be
used to determine employee exposure. In support of this argument Respondent points to
footnote 1 [[3/]] of the Standard which in applicable part reads:
"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."
The constitutionally offending enforcement of this Standard, as perceived by Respondent, develops from the inclusion of the term "should" in footnote 1. which Respondent argues, renders the entire Standard advisory or unenforceable. Respondent cites Pittsburgh-Des Moines Steel Coal, CCH 1977-78 OSHD 21,807 (R.C. 1977), aff'd sub nom; Marshall v. Pittsburgh-Des Moines Steel Coal, 584 F.2d 638 (3rd Cir. 1978).
We find Respondent's interpretation of the standard ill founded since the standard is unambiguous on its face in establishing that employee exposure to certain sound levels, for certain prescribed period of time, is actionable requiring abatement efforts by the employer. The standard clearly deals with total noise to which employees are exposed, and this is quite evident in the Standard which speaks of "sound (levels) exceeding those listed in Table G-16."
The absence of any qualifiers to the terms "sound levels" and "noise exposure" clearly and practically implies that noise levels means total noise levels to which employees are exposed regardless of intensity, source or modulation. This is sensible since it would be impossible to draft a regulation which would address each one of a myriad of different conceivable sources and levels of noise. Secondly, having a standard which deals with noise levels predicated on intensity, rather than frequency, modulation or source, is a more recognizable standard to deal with in determining whether remedial action should be taken or not since it deals with one factor, that being total noise level exposure.
Respondent's reliance on the existence of some sort
of constitutional quagmire rooted in footnote 1 to the Standard is misplaced since the
footnote is advisory in nature; furthermore it is overshadowed by the objectively clear
mandate found in the basic text of the standard, revealing to any reasonable and practical
person, the potential threat to ear injury and the need for employee protection. American
Can Company, 10 BNA OSHC 1305, 1982 CCH OSHD 25,899; Ryder Truck Lines, Inc. v.
Peter J. Brennan, 497 F.2d 230 (5th Cir. 1974). We further see that the application of
the Standard to the facts of the case, i.e., high noise levels, employee exposure, noise
induced hearing loss and technical methods of abatement, makes this remedial regulation a
most simple and unambiguous one, finding easy application and interpretation to the
potential hazards involved. Diebold, Inc. v. OSHRC, 585 F.2d 1327 (6th Cir. 1978); Vance
Construction v. Donovan, 723 F.2d 410 (5th Cir. 1984). While the cited Circuit Court
decisions are a sufficient basis alone to reject Respondent's argument, we also find that
the Commission has consistently and repeatedly held that the Noise Standard is not
unforceably vague but is a fully enforceable standard. Sherwin Williams, 11 BNA
OSHC 2105, CCH 1984 OSHD 26,986; Sun Ship, Inc., 11 BNA OSHC 1028, 1979 CCH OSHD
26,353; American Can, supra.
B. Inclusion of Impact Noise
Respondent argues that fair warning is not incorporated in the Standard alerting employers that impact and impulse noise will be included in total noise readings. Respondent points to the last sentence of footnote 1 which provides "Exposure to impulse or impact noise should not exceed 140 dB peak sound pressure level," to establish the proposition that inclusion of impact and impulse noise in a sound level meter reading is unconstitutional. Respondent argues that, since the footnote indicates that impact noise should not exceed 140 dB, it thus should not be included in a scale measurement of existing noise in the workplace.
I fail to find any logic to this argument for several
reasons. First. remedial legislation and regulation, such as the Noise Standard, should be
read in the manner applicable to its intended purpose and not antagonistic towards the
conduct to which it is addressed. Secondly, the proposition forwarded by Respondent does
not make sense since to a large extent noise sources are impact and impulse in nature and
represent the bulk of noise produced by machinery, as is the case at Respondent's own work
site (Ex. C-23, Fig. 2, 3, and 13). If one were to follow Respondent's argument, most all
excessive noise levels would not fall within the occupational noise exposure standard.
Lastly, Respondent's reading of footnote 1 of the Noise Standard, does not square with the
plain reading of the provision itself and this presents sufficient basis alone to reject
its argument. Accordingly, we find no affirmity in the Standard precluding its
V. ACCURACY AND RELIABILITY OF
SOUND LEVEL MEASUREMENTS MADE BY THE SECRETARY
As a major part of the Secretary's prima facie case, it is necessary that he demonstrate that employees were exposed to sound levels in excess of those specified in Table G-16 [[4/]] of the Noise Standard. In order to meet this burden, sound level readings of the work area and dosimeter readings of employee exposure were taken and recorded by the Secretary's Industrial Hygienist/compliance officer. The noise measurements were then entered into this record for the purpose of establishing noise level exposure of Respondent's employees in the cited areas.
Respondent raises certain procedural and evidentiary challenges to the accuracy, reliability and application of those sound level determinations made by the Secretary. Also Respondent challenges the Noise Standard's application, vis-a-vis, the Secretary's sound level measurements and methods by where they were taken.
First, Respondent, in defense to the Citation, argues that the Secretary's method of measuring noise level exposure, used to reach his conclusions that there existed excessive noise exposure of employees, deprived Respondent of due process since there exists an absence of any clear language in the Noise Standard that give an employer fair warning of how the sound levels are to be determined or measured. Respondent more specifically argues that the Noise Standard's language within Footnote 1 of the Standard, to wit,
"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,"
makes the collection of different noise levels optional.
Respondent points to the use of the word "should" found in Footnote 1, arguing that this makes the provision advisory in nature rather than mandatory, and accordingly is unenforceable by its own terms. Respondent relies upon the case of Pittsburgh-Des Moines Steel Co., 5 BNA OSHC 1420, 1977-1978 CCH OSHD ¶ 21,804 (No. 13708, 1977), aff'd sub nom, Marshall v. Pittsburgh-Des Moines Steel Coal, 584 F.2d 638 (3rd Cir. 1978). Enlarging on this argument, Respondent concludes that an employer should not be compelled to accumulate mixed sound levels to determine employee exposure. Respondent extrapolates from this conclusion the proposition that since dosimeter readings measure varying degrees of noise levels, as well as impact and continuous noise levels, the inclusion and acceptance of dosimeter readings as evidence of employee exposures deprives it of due process.
We fail to follow Respondent's argument since we find no ambiguity in the standard's requirements or application, particularly with regard to noise measurements, and accordingly find Respondent's arguments without merit.
Looking to the Noise Standard, maximum noise exposure for employees is clearly and unambiguously set forth in Table G-16. The Noise Standard becomes actionable upon the existence of excessive noise level exposure by employees. Whatever the provisions of Footnote 1, it is clear it has no effect on the unambiguous application of the noise exposure values set forth in Table G-16 showing permissible noise exposures. Nothing in Footnote 1 alters the mandate of the Standard that noise levels in excess of the permissible noise exposure values be eliminated through either feasible engineering or administrative controls. We find the reading of Noise Standard clear and concise, having easy understanding and application. Respondent misreads the purpose of Footnote 1, with its component calculations, in relationship to the mandated permissible noise level exposures. As mentioned earlier, Footnote 1 is an advisory note dealing with a method of noise calculation and not with basic noise level exposure limits; additionally the noise formula goes with the text of that note.
We find no due process problem, as proposed by Respondent, since Footnote 1 presents nothing more than directions on how to use a longhand method of computing noise level exposures when different levels of sound are present in the workplace. Footnote 1 is an acoustical engineering formula for calculating varying noise measurements. Apparently at the time the Noise Standard was written, Footnote 1 was needed in that dosimeters had not been invented (Tr. 744, 745). With the advent and availability of accurate and reliable dosimeters, Footnote 1 is now all but ignored or forgotten by acoustical engineers or industrial hygienists who might find it necessary to determine employee exposure to sound levels since the dosimeter does the calculations automatically and accurately (Tr. 1153-1157). Furthermore, since Footnote 1 has no application in determining or calculating noise exposure as a matter of law, and in this case as a matter of fact, we fail to find the perceived error as alleged.
Respondent next argues that the Standard fails to provide fair warning to employers that impact or impulse noise should be included in noise readings. Again, Respondent refers to language of Footnote 1 which reads, "exposure to impulse or impact noise should not exceed 140 dB peak sound pressure levels." Alluding this provision to the compliance officer's operating handbook (OSHA Industrial Hygiene Manual) dealing with the measuring of noise, Respondent maintains that the dosimeter readings should not be followed or used as a means of determining employee exposure since the dosimeter measured both impact and continuous noise levels.
We again find Respondent's argument without merit. The referenced provision of Footnote 1 gives the end limits of noise exposure at 140 decibel; that is, no employee is allowed such an exposure for any moment or time period. This coupled with the well established principle that a compliance officer's manual has little relevance since it in no way affords a party procedural or substantive rights, leaves Respondent's argument without any credence. Moreover, the failure to follow such guidelines, if any existed, is not grounds for vacating a citation. General Electric Co., 7 BNA OSHC 2183, 1980 CCH OSHD ¶ 24,502; PAF Equipment Co., 7 BNA OSHC 1209, 1979 CCH OSHD ¶ 23,421; Limach Co., 6 BNA OSHC 1244, 1977-1978 CCH OSHD ¶ 22,467; FMC Corp., 5 BNA OSHC 1707, 1977-1978 CCH OSHD ¶ 22,060; Combustion Engineering, Inc., 5 BNA OSHC 1943, 1977-1978 CCH OSHD ¶ 22,241; Concerned Residents of Buckhill Falls v. Grant, 537 F.2d 2938 (3rd Cir. 1976).
Respondent next challenges the specific noise readings taken by the compliance officer used to establish the existing noise levels to which employees were exposed, and which were the basis for issuance of the Citation. Respondent argues that both the sound level meter and the dosimeters used to take the readings were inaccurate, unreliable, improperly used or otherwise produced erroneous data. Respondent lists a variety of reasons why both the sound level meter and the dosimeter did not accurately measure sound levels and noise level exposures, namely failure to calibrate the dosimeter prior to inspection, failure to use wind screens on microphones, the existence of moisture and wind in the workplace, improper instruction to employees wearing dosimeters, faulty monitoring of employees wearing dosimeters by the compliance officer, failure to take noise readings in lunchroom, and the inclusion of impact and continuous noise levels in the dosimeter readings.
We have reviewed the record most carefully, and find more than sufficient evidence to support a finding that the sound level meter readings and the dosimeter readings were reliable and accurate and fully usable as a source to establish the existence of excessive noise levels in the workplace.
Looking to the compliance officer's conduct in use of the sound level meters and the dosimeters, the evidence clearly establishes that the compliance officer calibrated the sound level meter and dosimeter both before and after use in Respondent's workplace to insure their accuracy (Tr. 2263). That the dosimeter and the sound level meters were properly operating and accurately recording sound levels and sound level exposures is most clear and convincing in the record and was never challenged by any evidence submitted by Respondent (Tr. 2290, 2291, 2293, 2296, 2297, 2298, 2316, 2317, 2428, 2429, 2432, 2433, 2483). Additionally, we find that the compliance officer did instruct employees in the proper use of the dosimeter and did monitor the dosimeter performance as well as the employees' wearing of the dosimeter to insure it had been done correctly. When a dosimeter was found to be used or operated in a manner not consistent with good operational procedures, or used in a manner inconsistent with the instructions given by the compliance officer, the reading of that dosimeter was disregarded (Tr. 2264, 2265, 2312, 2435, 2514, 2515, 2516, 2537, 2538). The evidence is clear that the compliance officer fully understood the importance of proper pre and post inspection calibration of both the sound level meter and dosimeter and did so when she used these instruments (Tr. 2483, 2481).
Additional support for the reliability and accuracy of the noise readings made by the compliance officer is found in the testimony of the Secretary's expert witness as well as Respondent's expert witness, both of whom were acoustical engineers. Each of these experts testified that their own individual noise readings were consistent with the noise readings taken by the compliance officer (Tr. 918, 4547, 4549, 4560-4563, 4594, 4595, 4624). While there is sufficient evidence in this record to show that the compliance officer's readings, standing alone, were reliable and accurate, the fact that both parties' technical consultants, (who were intimately connected with the measurement and analysis of sound and the operation of sound measuring equipment) had found that their measurements were totally consistent with the compliance officer's noise measurements established beyond any possible challenge that the sound level and sound exposure measurements of the compliance officer, introduced into evidence, were solid, unrefutable, and totally reliable in establishing sound levels existing in Respondent's workplace and sound exposures of employees.
Respondent forwards one last argument concerning the validity of the dosimeter readings. This argument deals with the ability of the dosimeter to accurately record sound levels of varying intensity over a period of time. Respondent argues that dosimeters used to measure sound levels in a typical metal fabricating environment, will record and indicate noise levels 5 to 13 decibels of sound (hereinafter "dBA") [[5/]] higher than the sound levels actually existing in the workplace. Respondent maintains that this situation results from the dosimeter's inability to record simultaneously both impact and impulse noise. As a basis for its argument, Respondent directs our attention to Chapter VI of OSHA's Industrial Hygiene Manual,[[6/]] and statements by the compliance officer that the dosimeter would record impulse noise but not impact noise (Tr. 244). Respondent also utilizes the testimony of the Secretary's expert, George Kamperman, an acoustical engineer, to support the proposition that the dosimeters used in a typical metal fabricating noise environment would produce results 5 to 13 dBA higher or six times the expected noise relative to the Noise Standards 5 dBA "exchange rate" [[7/]] (Tr. 1168, 1171). Respondent thus asserts that this dosimeter error coupled with a standard plus/minus 2 dBA error inherent in every dosimeter results in erroneous readings from two to six times the expected noise levels in relation to OSHA's 5 dBA "exchange rate."
While the record might show some inconsistency in the prolonged testimony concerning the accuracy of the dosimeter [[8/]] there appears to be no question that the dosimeter is an instrument that can accurately measure and record total noise exposure over a specific period of time. I reached this conclusion from the lengthy testimony of Mr. George Kamperman, an acoustical engineer, whose experience in these matters was significant. He showed a substantial involvement in the development and use of sound and vibration measuring devices, in addition to the development and production of the dosimeter itself (Tr. 740, 741, 743). I find his testimony persuasive concerning the reliable use of sound level meters and dosimeters and an the fact that these devices gave equivalent answers in the measurement of sound levels, albeit that the format of such sound readings may be different (Tr. 743, 745, 746). I find Mr. Kamperman's testimony to be reliably supported by the record, that the type of noise generated at Respondent's metal working plant was such that a dosimeter could accurately measure and record the levels of noise exposure of Respondent's employees in the workplace (Tr. 747, 918, 1153, 1154, 1156, 1157, 1174, 1183).
As above discussed, we found the method employed by the compliance officer in utilizing the sound level meter and dosimeter to be correct and in accordance with standard operating procedures aimed at accurately recording sound levels and sound level exposures. Now having determined that dosimeters indeed accurately record sound levels in excess of Table G-16 of the Noise Standard, as determined by the Secretary. It follows then that the Secretary's allegations, as contained in the Citation and Complaint, that employees were subjected to sound levels exceeding those permissible levels listed in Table G-16 of the Noise Standard are supported by significant evidence in this record and. as a matter of fact and law, will be sustained.
This now brings us to the next issue as to whether
there existed feasible administrative or engineering controls capable of reducing the
excessive noise levels to those levels allowable in Table G-16, of the Standard, and
whether Respondent was obligated to install such controls.
VI. THE REQUIREMENT FOR USE OF
FEASIBLE ENGINEERING OR ADMINISTRATIVE
CONTROLS TO REDUCE EXCESSIVE SOUND LEVELS
We find the language of the Noise Standard unequivocal in its mandate that once noise levels, to which employees are exposed, exceed those levels listed in Table G-16 of the Standard the employer must utilize feasible engineering or administrative controls to reduce the excessive sound levels to permissible levels. A considerable body of case law has evolved concerning the interpretation of the term "feasible engineering controls." Within this body of law developed a difficult and changing concept concerning the economic component of technological feasibility. The application of this concept of economic feasibility has over the years taken on different meanings within the Commission. Without belaboring this decision with the complete dialectic history of the definitional evolution of economic feasibility and technological feasibility, we will start at that point of interpreting the Noise Standard with the case of Continental Can, 4 BNA OSHC 1541, 1976-1977 CCH OSHD ¶ 21,009 (No. 3976, 1976).
In the Continental Can case, there evolved what has come to be known as the "cost-benefit" theory. This theory dealt with determining whether controls were feasible or not, whether there was a realistic consideration of the hazards presented by excessive noise, and whether the health benefits to employees from noise reduction through the use of engineering controls justified the cost to the employer. The rationale of this decision was that the Act recognized that perfect safety and health could not be achieved, and that a balancing of costs and benefits must be made. (Also see, Castle & Cooke Foods, 5 BNA OSHC 1435, 1977-78 CCH OSHD 854, aff'd 692 F.2d 641 (9th Cir. 1982).
Propelled by the U.S. Supreme Courts decision in American Textile Manufacturers' Institute, Inc., v. Donovan, 101 S. Ct. 2478 (1981), (hereafter "ATMI"), the Commission in Sun Ship, Inc., 11 BNA OSHRC 1028, 1983 CCH OSHD 26,353, appeal dismissed No. 83-3081 (3rd Cr. 1983), found Continental Can to be an erroneous decision and set aside the cost-benefit theory of economic feasibility. The Commission held that the Supreme Court in ATMI had determined that when interpreting standards the term "feasible" meant "capable of being done" or "that which is achievable" and that Congress intended employee health to outweigh "all" other considerations save those making the attainment of this benefit "unachievable" (101 U.S. at 2490). The Commission's concept of engineering and economic feasibility looked to specific cost considerations and, whether such costs would be so high as to threaten the economic viability of an industry. The Commission placed upon the Secretary the burden of proving feasibility and that the cost of the engineering and administrative controls would not threaten the cited employer's long-term profitability and competitiveness, or that the employer's inability to afford the cost of controls resulted from the employer's lagging behind its industry in providing safety and health protection for employees. [[9/]] Thus, in Sun Ship we find the Commission fairly well tailoring its definition of technological and economic feasibility along the lines articulated in the ATMI case.
Looking to the most recent of Commission cases (issued July 20,1984) we see the Commission requiring The reexamination of the economic feasibility ruling contained in Sun Ship. Sherwin-Williams Co., 11 BNA OSHC 2105, 1984 CCH OSHD ¶ 26,986. The Commission in Sherwin-Williams, determined that the cost benefit analysis contained in Continental Can and Castle & Cooke cases still had application) in noise cases regardless of the holding in ATMI. The Commission reached this decision by holding that the ATMI decision had limited application to standards promulgated under Section 6(b)(5) of the Act, quoting Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 642 (1980). The Commission specifically stated that the Supreme Court had expressly reserved judgment on the promulgation of standards under Section 3(8) of the Act, 29 (U.S.C. § 652(a) (ATMI, 452 U.S. at 513 (note 32).
That being the case, the Commission concluded it was not required by ATMI to abandon the cost-benefit approach of Continental Can. Significantly the Commission found support in bringing back the cost-benefit theory in the rulings of the Fifth, Ninth and Seventh Circuit Courts, citing Marshall v. West Point Pepperell,Inc., 588 F.2nd 979 (5th Cir. 1979); Donovan v. Castle & Cooke Food, 692 F.2d 641 (9th Cir. 1982); International Harvester Co. v. OSHRC, 628 F.2d 982 (7th Cir. 1980); Turner Co. v. Secretary of Labor, 561 F.2d 82 (7th Cir. 1977).
We now reach that point, in this decision at least, where we must determine what test or theory of economic feasibility is to be applied, and by what method we must apply that particular theory to the facts of the case. This is not without some difficulty since the Commission in returning to the "cost-benefit" theory, distinguishing the ATMI and Sun Ship cases from its own basic ruling, came to rely on various Circuit Court cases to reach a synergistic decision balancing its own rational set out in Sherwin-Williams with that of the various circuits. Accordingly, while we are constrained now to apply the "cost-benefit" theory in reaching the economic feasibility issue, we must look to the circuits for guidance in the application of that theory. In this regard we, in the instant matter, are particularly bound to the rulings of the Seventh Circuit.
In International Harvester, supra the Seventh Circuit's evaluation of economic feasibility of noise controls, like the Commission, required that all relevant costs and benefit factors be considered. However, unlike the Commission, the Court pointed out that in comparing costs and benefits, benefits to employees must be weighted more heavily in the calculus than costs to the employer (628 F.2d at 988). Departing from the ruling of the Seventh Circuit, a; well as other circuits, we find the Commission in Sherwin-Williams, in reaching its own cost analysis, comparing the cost of earplugs to the cost of engineering controls with predictable results assured. Furthermore, unlike the Commission holding, the 7th Circuit held that the fact that controls are expensive does not mean they are not economically feasible under the cost-benefit theory, citing Turner Co. v. Secretary of Labor, 561 F.2d 82 at 988 (7th Cir. 1977).
The Seventh Circuit, in International Harvester, held, that since the use of personal protective equipment could not prevent all employees from experiencing hearing loss and hearing difficulties, the benefits to employees from implementation of engineering noise controls would be substantial (at 989). The Court, like the Commission, considered the fact that substantial noise reductions could be obtained through the use of engineering controls, and that such substantial noise reduction would prevent hearing loss. However, the Court in recognizing the remedial purpose of the Act, after considering the availability of personal protective equipment which had a miniscule cost in relation to the cost of implementation of feasible engineering controls, found the benefits of engineering controls such that they were held economically feasible.
It should be noted that the Commission, in Sherwin-Williams, in reaching its conclusion as to whether engineering controls were economically feasible, within the meaning of the Noise Standard, specifically looked to the holdings of the various Circuit Courts, i.e., Fifth, Sixth, Seventh and Ninth to determine if their costs were justified or not when measured against their expected benefits, 11 OSHC, at p. 2109, 1984 CCH OSHD 26,986, at p. 34,703. Accordingly, it will be necessary for us to review those considerations of the Seventh Circuit as to "expected benefits" in making the correct balance under the cost-benefit theory, and then juxtapose those considerations against the Commission's own application of the cost-benefit theory in order to arrive at a decision which comports with applicable and controlling law.
It must be said at this point that, looking to the facts of this case, and then applying controlling Circuit rulings, the result to be arrived at will be somewhat different than one would initially expect under the holding of the Sherwin-Williams case. The Commission in adopting the cost-benefit theory, unlike the Circuit rulings. placed great emphasis on the cost component in the cost-benefit formula, comparing costs of engineering controls to costs of earplugs. This can be seen from the language of Sherwin-Williams wherein the Commission states:
"The burden of producing evidence then returns to the Secretary "who must establish that the benefit of the proposed engineering controls justifies their relative cost in comparison to other abatement methods." 1984 CCH OSHD 26,986, at p. 34,072
"In this case, the cost per employee is even
greater than that in Continental Can and Castle & Cooke. . .here, the
total cost is many times higher and-significant continuing costs will be incurred. .
1984 CCH OSHD, 26,986 at page 34,703). . .
The Seventh Circuit in contrast to the Commission, in discussing costs, has consistently held that relative cost comparison should not to be made between personal protective equipment and engineering controls stating "furthermore in comparing costs and benefits, benefits to employees weigh more heavily in the calculus than cost to the employer." See International Harvester Co., supra at 988; RMI Co., supra at 572. We find a dichotomy in the term "benefits" as understood by the Commission and as understood by those courts which have, from time to time, defined the cost-benefit theory. The Commission in Sherwin-Williams has given to the term "benefits" a performance ingredient focusing on the perceived capabilities of personal protective equipment [[10/]] as opposed to the definitive capabilities of engineering controls. In Sherwin-Williams, this "capability" ingredient translated into employers being given the option to choose either engineering controls or a program of personal protective equipment in complying with the basic terms of the Standard. It is in this context that the Commission understands the term benefit, a concept quite apart from that ascribed to by the various Circuit Courts who have spoken on this issue.
The Commission, in arriving at their understanding of "benefits" looked to the least costly means or measures of interpreting ostensible compliance with the Standard, all but ignoring the considerable benefits which would be obtained by the employees through the more expensive method of lowering sound levels. The Commission's approach to defining "cost benefits" is to do so in terms of the least costly proposed abatement method, without taking into consideration the absence or shortfalls in health and safety benefit to employees as is easily seen by the evidence they considered and did not consider, and as noted in the Commission's conclusions that
"the testimony of employees reveals that shortcomings exist in Sherwin-Williams' personal protective equipment program but they do not affect the conclusion that the wearing of earplugs by Sherwin-Williams' employees reduced sound levels experienced by employees within Table G-16 limits. While engineering controls would significantly reduce noise exposure, the Secretary has failed to demonstrate that the benefits that will be achieved by the controls justify the cost of implementing them." 1984 CCH OSHD at page 34,702.
Significantly the Commission's conclusions in Sherwin-Williams followed unrebutted testimony of employees that the wearing of earplugs and earmuffs produced "discomfort, difficulty in communication, hearing loss, difficulty in determining the source of sounds, and ear infections...that employees took earplugs out during the workday and altered the plugs to make them more comfortable." 11 BNA OSHC at 2107, 1984 CCH OSHD, at p. 34,699. Additionally, three experts in the field of audiology bolstered the testimony of the employees, in that each indicated that the employer's program of personal protective equipment did not protect the hearing of employees and that employees would suffer hearing loss if they continued to work in the sound levels existing at Sherwin-Williams' worksite. The Commission's emphasis on the total dollar expenditure as the controlling factor in applying the "cost-benefit" theory was pointed out by Commission Cleary in his dissent stating:
"By its decision the majority virtually
eliminates engineering controls from the Noise Standard. This is neither consistent with
the language and purpose of the Act nor with the Commission power."
1984 CCH OSHD, at pages 34,703, 34704
Thus, we see the Commission's application of the cost-benefit theory, as above discussed, presenting a significant departure from the Seventh Circuit application, as well as these other Circuit rulings on this issue. The Circuits have been unanimous in their view that in applying the "cost-benefit" theory one must emphasize the benefits a particular mode of compliance with the Standard will give employees, and not the cheapest and least expensive way possible for the employer to gain compliance with the Standard. In International Harvester Co., supra, the court noted, in finding engineering controls preferable to the less expensive earplug method,
"the benefit to employees from implementation of engineering noise controls will be substantial. The use of personal protective equipment has not prevented hearing loss and hearing difficulties among these employees. Implementation of engineering controls will bring all 80 employees within permissible noise exposure level" (at 989). (Emphasis added).
Likewise the Fifth and Sixth Circuits (cited by the Commission in reaching its interpretation) follows the Seventh Circuit in holding that the Noise Standard reflects the determination that the preferable method of abating hazardous noise exposure is through technological or administrative controls such as the installation of damping material to machine surfaces and work walls. (Marshall v. West Point Pepperell, Inc., 588 F.2d 979 at 981) (5th Cir. 1979); RMI Co. v. Secretary of Labor, 594 F.2nd 566 (6th Cir. 1979). The courts have found that numerous medical and physiological studies document the serious effects of excessive noise exposure on employees, (West Point Pepperell, Inc., supra, at 981, footnote 4). Of particular significance is the courts recognition of the Noise Standard's mandate that only when engineering or administrative controls are not feasible, would workers be provided, and required to wear, personal protective equipment (West Point Pepperell, Inc., at 981). Likewise in RMI Co. v. Secretary of Labor, supra the court quoting Turner Co., 561 F.2d 82 (7th Cir. 1977), held that the cost of proposed controls was to be balanced against the proposed benefits flowing therefrom in order that resources would be allocated in priority to the degree of harm established and that "Controls will not necessarily be infeasible merely because they are expensive." (at 572) Thus we see somewhat of a uniform approach by the various Circuits, including the Seventh, that in applying the cost benefit theory it is the benefits to employees that must be compared to the costs rather than the making of a comparison of costs of personal protective vis-a-vis the costs of engineering controls.
Looking to both Commission and Circuit case law, we find ourselves with distinct differing interpretations as to the application of the cost-benefit theory. We find the Seventh Circuit application showing an emphasis towards employee health and safety considerations,[[11/]] whereas the Commission, in Sherwin-Williams, while recognizing that employees were experiencing hearing loss and having troubles with the personal protective equipment program, nonetheless choosing personal protective equipment as the most expedient means of complying with the Noise Standard. In opting for expediency the Commission, in Sherwin-Williams, garnered to the employer the economic benefits of a cheaper means of compliance, subordinating the protective benefits associated with the more costly engineering controls -- all the while employees experiencing hearing loss, ear infections, and other safety related dangers in the high noise environment where they were obligated to wear earplugs. The Seventh Circuit, quite apart from the Commission, specifically found engineering controls to be economically feasible by reason of the very fact that they benefited those employees who did experience hearing loss and other hearing difficulties, and that it represented a means which would bring all employees within permissible noise exposure levels. International Harvester Co. v. OSHRC, supra at 989.
We find ourselves with two distinct approaches to the application of the cost- benefit theory, each having significant differences and departures from one another -- all of which leave us in a difficult position in fashioning an Order in this case. Looking to guidance from the courts, we are assured of the general principle that an agency is charged with the responsibility of formulating law or policy, while the courts bear the final responsibility for interpreting that law or policy. Beverly Enterprises v. NLRB, 727 F.2d 591 (6th Cir. 1984). We are bound by Commission precedent to apply the "cost-benefit" theory, as mandated by Sherwin-Williams, disregarding the former "feasibility test" of Sun Ship. We are likewise bound to follow the dictates of the Circuit Court's appellate jurisdiction, and not depart from their judgmental interpretation and application of the rules promulgated by the Commission, Beverly Enterprises v. NLRG, supra; Smith Steel Casting Company v. Donovan, 725 F.2d 1032 (5th Cir. 1984).
Accordingly, we find ourselves constrained to follow the case law of the Circuit in which these proceedings have taken place, and are required to apply the courts reading of the cost benefit theory within the Standard. Smith Steel Casting Co. v. Donovan, supra; Beverly Enterprises v. NLRB, supra.
Looking to the test established by the Seventh
Circuit, the benefits to employees will be weighed against the cost to the employer, and
all relevant cost and benefit factor will enter into the determination of economic
feasibility. However, unlike the Commission, employee benefits will weigh heavier on the
scale than costs to employer, and we will look to an abatement method that leaves no
employee behind, unprotected, and possibly sustaining injury. RMI Co. v. Secretary of
Labor, supra at 572, International Harvester Co. v. OSHRC, supra,
at 988 and 989. As will be more fully discussed below, applying this test, it is clear the
benefits to employees from mandating the installation of engineering controls will be
found to decisively outweigh their costs to the employer, and will be required of the
employer where found technologically feasible.
VII. BENEFITS UNDER COST BENEFIT THEORY
The litmus test in determining economic feasibility of proposed engineering controls under the cost-benefit theory requires that we carefully analyze those benefits which inure to the employees from the imposition upon the employer of the requirement to provide such engineering controls, and weight them against cost of such controls to the employers. At the same time there must be a realistic recognition of the capabilities of a program of personal protective equipment and its ability to meet the health hazard associated with excessive noise levels. Selection of the most effective method, in terms of employee protection after each method has been found to be a viable alternative, would be the last step toward compliance with the Standard. -- For practical purposes we will compare the two methods.
First in taking inventory of employee benefits obtained through engineering controls and through personal protective equipment, it is important that we fully understand the nature of the health hazard involved. We find, and the record herein demonstrates, that excessive noise levels represent an insidious occupational health hazard manifesting itself in sensory neural hearing loss. It is insidious because the,
"hazards to the auditory system are not dramatic
like hazards to vision - onset is slow and deterioration is gradual. Often the process is
far advance before it is noticed and only then is the extreme social debilitation of
deafness recognized - too late for either prevention or corrective measures to help
(Respondent Exhibit 10, p. 59)
In opting for a particular means of protection it is particularly important to choose the most effective or proven means to protect the employees since unrealized expectations of a particular touted mode of employees protection when found wanting, will have allowed for the hazard to cause hearing loss to employees. Hearing loss induced through the excessive noise levels is irreversible since it involves damage to the neurological auditory sensors (Tr. 3900). The loss of this vital sensory system has a significant adverse impact and creates a handicap in a person to a degree closely comparable in magnitude to the handicap associated with loss of sight (Tr. 3898-3899). Indeed it could be said that a person who is blind can function much better in society than a person who has experienced a hearing loss (Tr. 3897). Clearly the quality of life of a person experiencing noise induced hearing loss is significantly impaired (Tr. 3898, 3899).
Employees who begin to experience hearing loss due to excessive noise levels in the workplace will continue to do so if they remain in the high noise level (Tr. 3900). It is only through the reduction of noise levels to approximately 80 dBA that there exists no risk to employees from the pernicious and insidious health hazard associated with such exposure to high noise levels (Tr. 3901, 3908).
In assessing the benefits to employees and weighing them against the cost of engineering controls, vis-a-vis the costs for a program of personal protective equipment, we must compare the scope of protection afforded the employees from each mode and how each provides that necessary quantum of protection from the hazards involved. International Harvester Co., supra; RMI Co. v. Secretary of Labor, supra.
The evidence establish that noise levels in Respondent's plant were excessive, generally averaging in the upper 90's dBA range, (97, 98, 99 dBA) and at times reaching 113 dBA (Tr. 2267-2284). It is important then that in resolving the "cost-benefit" issues herein we select a means of hazard abatement which would reasonably assure all of Respondent's employees protection from the dangerous high noise level. The Seventh Circuit found this test to be a particularly important one in choosing a means of employee protection; it was on this basis that the court found engineering noise controls feasible under the cost-benefit theory (notwithstanding their significant costs), rejecting a program of personal protective equipment as a suitable method of compliance. International Harvester Co., supra at 989.[[12/]] We first look to the levels of protection obtained from use of a program of personal protective equipment.
The evidence in this case unequivocally established that the advertised expectations for noise attenuation obtained from use of personal protective equipment did not correlate with its actual on-the-job performance as a means of noise hazard protection. Comprehensive studies showed that in actual use personal protective equipment did not provide the extent of protection that it was designed or held out to provide. Looking to Respondent's Exhibit R-10, we find that attenuation factors for earplugs varying greatly from their advertised and mean attenuation expectations. Indeed it appeared undisputed that the results of recent studies indicated that hearing protectors, worn in real life conditions, produced attenuation results, for a given work force, in a quantum far less than the manufacturers stated estimates of noise attenuation (Tr. 3862), Ex. R-10; also see Sherwin Williams Company at 34,705, footnote 5, Commissioner Cleary dissenting) [[13/]]. In the instant case we find that Respondent provided its employees with two types of earplugs, these being "Swedish Wool" and the "E-A-R" earplug (Tr. 405). Utilizing Exhibit R-10, we are able to evaluate the actual degree of employee protection provided to Respondent's workforce by use of these earplugs.
In the case of the earplug known as "Swedish Wool" under the trade name of Bilson, (Exhibit R-10, page 17), we find that while the majority of those employees, who correctly wore the earplug, received a mean attenuation of 18.4 decibels of noise attenuation, a significant portion of the employees would receive only 13.5 and 8.4 decibels of noise attenuation (Ex. R-10, page 10, line 5). Applying these attenuation factors to noise levels existing at the workplace, we find that the neural component of some of the employees' ears, while wearing the earplug, were exposed to noise levels from 105 decibels to 97 decibels in the higher levels, and 90 to 82 in the lower levels. Looking to the data for the "E-A-R" earplug, we find that while the majority of employees would receive 31.5 decibels of attenuation, if correctly worn, a significant portion of the employee population would receive 24.1 and 16.5 attenuation. This would result in employees, who wore the earplug, being exposed to sound levels of 89 to 97 decibels in the higher end of noise exposure.
It should be noted that cited attenuation figures apply to those individuals who correctly comply with Respondent's plan of personal equipment. Those employees who, knowingly or unknowingly, incorrectly use or insert the plugs, or who by reason of inability due to discomfort, ear infection, or personal reasons, fail to wear their personal protective equipment throughout the work day, will of course receive a small modicum of protection or no protection at all. [[14/]] Consistent with this finding that not all employees who wore earplugs were receiving adequate noise protection was the evidence, of record, that Respondent's employees were experiencing neurological damage to their ears from the excessive noise levels, and that Respondent's method of choice of complying with the Noise Standard, its program of personal protective equipment, was not capable of providing that quantity of protection to all employees necessary to arrest their continued loss of hearing.
This learned fact, of course, is not to be unexpected since the evidence established the existence of gaps or lapses in the program such as when employees, while wearing the "E-A-R" earplug and receiving greater noise attenuation benefits, found that in order to carry out their job functions they needed, from time to time, take the earplug out to communicate in the workshop or on the telephone (Tr. 2218). Additionally, the inserting and removing of earplugs seemed to present a problem to employees by reason of the oil mist in the air and the deposits of oil on the earplug and within the ear (Tr. 2218, 2219). Consistent with the evidence of difficulties in use of earplugs was the testimony of employees who reported hearing loss since working at Respondent's workplace (Tr. 2091, 2213, 2232, 2237, 3876).
The phenomena of lower expectations in the capability of personal protective equipment seems consistent with other documentary evidence which showed that employees were experiencing noise induced hearing loss, or were tending toward that condition. Looking to Respondent's own audiometric examinations, many employees were showing signs or trends towards noise induced hearing loss. (Ex. C-75, 76, 77, 80, 81).
While Respondent's expert in the field of audiology disputed the fact that employees were experiencing signs and trends of hearing loss, resulting from excessive noise level, to any degree exceeding that of the general population, I specifically find the conclusions of Respondent expert, in this regard, without any credence or persuasiveness since the method employed by Respondent's expert to arrive at these conclusions were Without foundation and appeared contrary to the basic facts of this case. Looking to the testimony of Respondent's expert concerning his calculations of the percentage of hearing loss within Respondent's work force, what he calculated and considered to be a normal rate of hearing loss among employees, as compared to the general population, would within 20 years leave each and every employee within that work force stone deaf. One could hardly characterize such a result as normal, as did Respondent expert witness (Tr. 3442, 3667, 3679, 3685, 3796-3801).
Using Respondent's own audiometric test results we do find credible the fact that 28.6% of the employees in Department 75 showed adverse changes in hearing sensitivity, 14.9% of employees in Department 2 showed trends and shifts towards hearing impairment, and in Department 6, 6.3% showed such shifts in hearing (Tr. 3705-3706, 3707, 3708, Ex. C-77, 78, 79, 80, 81). Apparently on a plant wide basis, 17% of employees showed shifts in their hearing (EX. R-28, Tr. 3705).
Significantly, the data introduced at trial concerning the audiograms, and the extent employees were experiencing adverse shifts in their hearing, is consistent with the testimony of the employees themselves concerning problems developing in their hearing while employed at Respondent's work place. Employees testified that since being employed with Respondent their hearing had deteriorated and had presented them with problems in communicating with others (Tr. 2091, 2213, 2232, 2237). We find that substantial evidence has amply demonstrated the fact that a program of personal protective equipment (earplugs, ear muffs) is not able to afford to all of Respondent's employees that requisite quantity of protection, under the Noise Standard, from the hazards associated with high noise levels in the workplace. The courts have mandated that such a program is unacceptable as compliance with the Noise Standard under the cost benefit theory. International Harvester, supra; West Point Pepperell, Inc., supra.
While the dollar costs of such a program of personal protective equipment are clearly nominal when compared to the costs of engineering controls, effective protection of the entire work force is a benefit lost with such economies. When looking to the efficacy of engineering controls, however, we are assured of one controlling fact, that being that the noise exposure of all employees will not exceed that level obtained through use of noise controls designed to lower the excessive noise levels. As recognized by Respondent's own expert, a good hearing conservation program aimed at conserving human hearing includes the use of engineering noise controls to lower overall noise levels (Tr. 3765, 3888). Once engineering controls are in place there should be no reason why an employee should sustain hearing impairment as a result of excessive workplace noise (Tr. 3888). This is a benefit that just can not be overlooked and one the courts have used to justify reasonable costs expenditures for feasible engineering controls. Furthermore the courts have recognized that the employer is obligated to take those steps necessary to protect those workers who predictably will not fare well under a program of earplugs or ear muffs. (International Harvester, supra at 989; pp. 35 to 39, supra).
It is important to be aware of the fact that once the insidious nature of high noise levels is eliminated through use of engineering noise controls no employee in the work force will be adversely affected. We further know that employees showing potential risk of hearing loss, once in the lowered noise levels will now enjoy no threat to their hearing and any hearing loss experienced will be arrested (Tr. 3901, 3873, 3900).
When considering that employees are working in an environment of noise levels up to and exceeding 100 decibels the use of earplugs hardly seems the type of benefit envisioned by the Noise Standard; its mandate requires realistic employee protection from the hazards of high noise levels. The various Circuit Courts have likewise reached this same conclusion in interpreting the standard. International Harvester Co. v. OSHRC, supra; RMI Company v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979); Marshall v. West Point Pepperell, Inc., supra.
It has not been disputed that none of the adverse conditions effecting employees would exist if noise levels were lowered through the use of engineering controls since all employees in the workplace would have an exposure no greater than that of the lower noise levels obtained through the utilization of the engineering controls. We view this as a benefit to employees that well justifies the cost associated with feasible engineering controls and is a result mandated by the Act, as set forth in its stated purpose assuring assure "every working man or woman" safe and healthful working conditions (29 U.S.C. ¶ 651(b)).
It must be emphasized at this point that in Section 2(b) of the Act, Congress specifically declared it to be its purpose to assure so far as possible "every working man and woman" safe and healthful working conditions 29 USC 865(b). Thus following this language we would expect an understanding that all employees are entitled to adequate occupational safety and health protection. Accordingly, a means of compliance with safety or health regulations that garners to some, or even most, employees the required occupational safety and health protection is inconsistent with the stated purpose of the Act if it does not protect all employees. Such a means of compliance is not acceptable as compliance with the purposes of the Act, regardless of whatever theory of "cost-benefit" is applied, RMI Company, supra at 572; International Harvester, supra at 989. Exhibit R-10, together with the testimony of employees, the audiometric examinations, and reports of Respondent's expert show large gaps in employee noise protection making the program of earplugs unacceptable as a means of compliance with the Noise Standard, as required by the Act and as interpreted by the cases cited.
One last point concerning the comparative benefits of engineering controls and personal protective equipment. A key adjunct to the effectiveness of a personal protective equipment program is the requirement to monitor the work force's hearing with follow-up to any difficulties brought out by such monitoring; the monitoring of the hearing health of employees is done through audiometric testing. In the instant case we find Respondent did administer audiometric examinations to its employees working in the hazard area. However, for such program to be operated correctly, as an objective monitor of the effectiveness of the personal protective equipment, employees who are shown by the examination results not to be doing well should be removed from the noise hazard area so as to forstall any further loss in their hearing. They are then to be referred out to a doctor for consultation.
Further, for a program of personal protective equipment to provide the benefits of effective employee protection from the noise hazard (in particular the type of benefit envisioned by the Commission as articulated in Sherwin-Williams, supra), the monitoring program itself had to be fully effective, administered correctly, and conscientiously applied in order to have any semblance of effectiveness comparable to engineering noise controls (Tr. 3438, 3764, 3765, 3888, 3889, 3890, 3891). Thus, if the audiometric testing facet of the program of personal protective equipment is found ineffective, so must the entire program of personal protective equipment be evaluated. According to Respondent's own expert, the issuance to employees of earplugs alone cannot be considered an effective hearing conservation program designed to adequately protect employees from the hazards of high noise levels (Tr. 3764, 3767, 3888, 3890, 3891).
In the instant case we find Respondent's program of personal protective equipment a failure (not only from its inability to adequately protect all employees in the workplace as earlier discussed), but from the fact that the monitoring of the employees success in use of the earplugs was superficial at best. and otherwise a dismal failure. Respondent did administer audiometric examinations to employees but that was as far as it went. The record herein is replete with evidence showing that the data contained in the audiometric examinations was all but ignored. The evidence showed that the audiometric tests were given solely to establish the fact that such examinations were given, and not for the purpose of monitoring the health of these employees exposed to the high noise level. Nor were the audiometric examinations used to monitor the effectiveness of the earplug program in the workplace (Tr. 76, 86, 87, 96).
Employees were not told of the results of the audiometric exams, even though these examinations indicated hearing loss. What instead occurred was for Respondent to lock away the exam results in the safe of its General Manager. While Respondent's expert industrial audiologist would review the examination results, and issue a printed report calling attention to the fact that employees were experiencing shifts in their hearing, these reports, like the audiometric examination, were also locked away in the safe and not used in any manner whatsoever including the monitoring of adversely affected employees. The evidence is replete that the monitoring program was a sham, designed solely to have it appear as though there was some sort of an act of compliance with the Noise Standard by Respondent -- and it was nothing more then that (Tr. 74, 76, 77, 78, 86, 96, 97, 99, 107, 401, 435, 2090, 2209, 2210, 2211, 2229, 2230, 4311, 4309, 4313, 4314).
Indeed the individual who was responsible for
employee safety and health, the Manager of Security and Safety, admittedly did not know
the meaning and purpose of the information given to Respondent by its own audiometric's
expert. Nor was he one bit interested in understanding what the audiometric exams as a
whole showed (Tr. 87). He merely viewed the program of audiometric exams, with its
computer analysis printout, as a means of complying with the hearing conservation program
mandated under the OSHA regulations (Tr. 96). In accordance with this view, Respondent had
placed all the documents in a safe in the General Manager's office never to be seen by any
employee or member of Respondent's supervision again (Tr. 96, 97). Even if the audiometric
examinations and analysis reports were to reveal an employee going stone deaf nothing
would be done and the reports would be filed away never again to see the light of day (Tr.
100-107). Accordingly, we must conclude from this, that as a matter of fact, Respondent's
program of personal protective equipment did not offer the same requisite degree of safety
and protection to employees that would have been available to employees had Respondent
installed engineering controls to lower the excessive noise levels to safe levels.
We find the facts to squarely reveal that a program of personal protective equipment is not able to adequately protect all employees in the workplace from the hazards of excessive noise. We further find that the facts show that only through use of feasible engineering noise controls would all employees be assured they were receiving adequate protection from the harmful effects of excessive noise levels. Additionally, the lowering of excessive noise levels through use of feasible engineering controls would prevent those employees who had experienced hearing loss, or who showed signs or trends of hearing loss, from experiencing further damage to their hearing. Thus, as a matter of fact, we find that the benefits to employees from the installation of feasible engineering controls justifies the reasonable costs associated with the installation of such controls.
We find that personal protective equipment, with their lesser costs, can not provide the same degree of success in protection from the harmful effects of high noise levels as would engineering controls. We find, as a matter of fact, that the use of personal protective equipment, with all its economies of cost, not preventing hearing loss among all employees, a result which could be obtained through use of engineering controls.
The evidence has established that the use of personal
protective equipment did not prevent all employees from experiencing hearing loss,
that employees complained of hearing difficulties, that employees who experienced hearing
difficulties were continued in employment in the high noise area, and under these
circumstances the Seventh Circuit (as well as all other Circuits) find that the reasonable
costs of engineering noise controls is well justified, -- to which we are bound. International
Harvester, Inc., supra; RMI Company v. Secretary of Labor, supra.
The fact that the cost of the engineering noise controls is far greater than the cost of
personal protective equipment does not alter any conclusions herein which would make
engineering controls economically unfeasible, as has currently been determined by the
Commission. We are thus left with the inescapable legal conclusion that, under the facts
of this case, after application of the cost-benefit theory, feasible engineering control
are required to lower noise level in Respondent's workplace.
VIII. TECHNOLOGICAL FEASIBILITY OF ENGINEERING NOISE CONTROLS
We now turn to the issue of whether there were available to Respondent feasible engineering noise controls capable of lowering sound levels in the cited workplace. This issue, generally referred to as "technological feasibility," deals with the availability of engineering controls capable of lowering sound levels while at the same time being fully compatible with the manufacturing and maintenance processes associated with the machinery that is the subject of the noise suppression activity. As part of the technological feasibility issue, there exists an economic component dealing with the reasonableness of the cost for such controls as balanced against the amounts of noise reduction that can be obtained from such controls. (We suggest this is where the thrust of the "cost-benefit" determination should reside).
With respect to the economic component of technological feasibility, the proposed noise control should incorporate a reasonable balance between its noise suppression ability, the number of employees who will be affected by the installation of such controls, and its ultimate cost. If a reasonable balance is met between these three factors, then the controls must be considered technologically feasible if they are otherwise able to lower noise levels without harming the manufacturing process. Establishing that the engineering controls are technologically feasible, and that there exists a reasonable balance between these three mentioned factors of noise suppression ability, the number of employees affected and ultimate cost, is the responsibility of the Secretary who must preponderate on these issues. Sherwin-Williams Company, supra; Donovan v. Castle and Cooke Food, 692 F.2d 641(9th Cir. 1982); RMI Company v. Secretary of Labor, supra at 574.
Before turning to the individual facts involving technological feasibility, it is important to sort out what evidence was found credible and reliable and what was not. Considerable evidence and testimony has been submitted in this record on the issue of feasibility of engineering controls. In evaluating the persuasiveness of this evidence, we find that both the Secretary's and Respondent's acoustical engineering experts were highly credible witnesses whose views we found persuasive in reaching resolution on these issues. Complementing the views of the experts was the testimony received from those employees who both operated and maintained the machines which are the subject matter of the action. The evidence received from these witnesses had considerable impact upon the ultimate conclusions concerning the feasibility of engineering noise controls. We, however, do not find the same reliability or degree of persuasiveness in the testimony given by two of Respondent's witnesses concerning the proposed engineering controls. We specifically refer to the testimony of Mr. Prem Rai and Mr. Ted Gabryszewski. We find their testimony generally unreliable, biased and inconsistent with that credible testimony received from the operators and maintenance employees who, on a daily basis, worked with the punch presses and screw machines.
With respect to the observations of Mr. Rai, and his calculations concerning the estimated stockups made of each screw machine per day, together with the time calculated necessary to gain access to the screw machines through the doors on the proposed acoustical enclosures. we find no support in this record for their reliability. His conclusions were at odds with the credible testimony of those employees who operated and serviced the screw Machines and who were intimate with the day to day operation of the machines. We find the testimony of Mr. Rai and Mr. Gabryszewski not reconcilable with the credible evidence as a whole, and give no persuasive element to it. Continuing along this line. we find the proposition contained in Respondent's "domino theory," where employees would open noise enclosures on a sequential basis in order to hear their machines operating, to be inconsistent with the facts of the case and contrary to acoustical principles established by the expert in recommending such noise controls.
Since we disregarded the general conclusions reached
by Mr. Rai and Mr. Gabryszewski as without foundation or reliability, it follows then that
those opinions of Respondent's acoustical engineering expert which were based upon the
conclusions and calculations of Mr. Rai and Mr.Gabryszewski, and not of the experts own
personal knowledge, must likewise be disregarded. With this in mind, we can now review the
appropriateness of the engineering controls proposed by the Secretary as feasible
Department 75 contains approximately 72 Davenport automatic screw machines (Tr. 144, 2170, Exhibit R-8). These machines fabricate small machined components from bar stock fed into the receiving end of the machine, The parts produced are utilized in the assembly of Respondent's various product lines (Tr. 2168, 2612, Exhibits R-8, C-13, AE-1).
Screw machine operators generally are assigned the responsibility for the operation of two screw machines during an eight-hour shift (Tr. 2169). Approximately 67 employees are assigned to Department 75 during the two shifts the Department is in operation (Tr. 327, Exhibit C-24). On the average, approximately 50 of the 72 machines are in operation on a given day (Tr. 1847, 2178). The screw machine operators' duties are such that most of the workday is spent near his machines within the Department (Tr. 2172, Exhibit C-15).
The Davenport screw machine is a noisy machine, having sound levels frequently exceeding the OSHA standard. On the average, operators are exposed to 99-102 decibel during their workday (Exhibits R-8, C-74). The engineering noise control proposed for the Davenport screw machine is a complete acoustical enclosure of the machine (Tr. 481, 1840, 2458). The Secretary's expert witness, whose testimony I find credible an this subject, testified that the noise enclosure for a Davenport screw machine is a state of the art, off-the-shelf item easily available to Respondent. He had seen these enclosures used in 50 to 100 other manufacturing facilities (Tr. 909). The acoustical noise enclosure for a screw machine is not an unusual engineering solution, but is one very familiar to the industry and one that will significantly achieve noise reductions bringing the noise level within compliance with the Noise Standard (Tr. 913-916). Indeed, it is possible that noise levels could be brought to levels of 85 decibels in this workplace (Tr. 2036, 2037).
The cost for such acoustical enclosure is approximately $4,000-6,000, plus a like amount for installation (Tr. 916). We find the Secretary's expert's conclusions consistent with the experience of the Respondent's own personnel who had constructed a prototype shroud to cover the Davenport stock tubes, and this was found to be very effective in reducing noise levels (Exhibit C-43). Interestingly, Respondent declined the installation of noise enclosures, since it felt that such action would needlessly comply with the Act (Tr. 1555, 1556, Exhibits C- 43, C-45, C-46). Additionally, in 1972 the Respondent had begun ordering acoustical enclosures for screw machines, five of which were installed in 1974 (Tr. 1821, Exhibits C-18, C-78, p. 68, C-49, p.9). Respondent later changed its supplier of acoustical noise enclosures to the GT Safety Equipment Company (Tr. 1844-1846, 2183, 2793). At the time of the hearing, approximately 24 screw machines were equipped with enclosures in Department 75, producing significant noise reductions (Tr. 1843, 3124).
We find that the acoustical enclosures are compatible with the manufacturing and maintenance evolutions carried on at Respondent's workplace. These enclosures are designed specifically for the type of machine used by Respondent and with appropriate venting are fully compatible with all activities carried on at Respondent's workplace. (Tr. 907, 909, 912, 1116, 1140, Exhibit C-23). Indeed, Respondent's own acoustical expert admitted that he had recommended acoustical enclosures as one means of reducing noise levels to less than 10 decibels at another facility having 54 Davenport screw machines (Tr. 4587, 44489, 4592, 4593). Respondent's expert witness further testified that a well-designed acoustical enclosure would reduce noise levels by at least 20 decibels (Tr. 4575), and when enclosures were correctly used noise levels in Department 75 would be below 90 dBA (Tr. 4436).
As mentioned above, we do not find any reliance in the testimony of Mr. Prem Rai, who indicated that enclosures would have to be opened for approximately 16 minutes per day, thus degrading their use subjecting employees to exposure levels of 105 decibels for 32 minutes per day (Tr. 3641, 3642, 4505, 4506, 4574, 4618-4620). This testimony was not consistent with the testimony of the employees who indicated that enclosures would be opened while the machine was running, once every 20 minutes for approximately 15 seconds to check parts (Tr. 4719-4626), and once or twice per hour for two or three seconds to make a tool adjustment (Tr. 4702). The testimony of the employees, which I find credible, indicated that the total amount of time for which the enclosures would have to be open to check parts or make tool adjustment would be less than 16 minutes per day for both machines (Tr. 4719-4725). The conclusions of Respondent's engineering expert that with the use of the enclosures employees would be exposed to excessive noise levels for 38 minutes per day is not found credible since it was based on inaccurate or biased data (Tr. 4563).
The overwhelming credible evidence established that noise enclosures are a feasible engineering control available for Respondent's screw machines in Department 75. It is not difficult reaching this conclusion since Respondent has had experience with enclosing with enclosing screw machines in its Johnson City, Tennessee plant, wherein the enclosure of 14 machines had reduced noise levels to 92 decibels (Tr. 1775-1777). Finally, new Davenport screw machines were purchased, or planned for purchase, with acoustical enclosures (Tr. 346, 347, 1983, 1984, C-78 p. 85). When carefully viewing the record, it would be extremely difficult to say acoustical noise enclosures for screw machines in Respondent's workplace were not technologically feasible.
We do not find the evidence submitted by the
Respondent, at all persuasive that there would be additional costs associated with
enclosing the machines. We find that acoustical enclosures impose no difficulty or
additional cost of labor to employees who on the machines, and that the enclosures require
little maintenance. We believe current estimated cost of $5,000 per enclosure, plus an
installation cost of between $1,200-1,400 per machine to be an economically feasible and
cost effective outlay of capital to achieve compliance with the Noise Standard and Act
(Tr. 1822, 1861, 1863, 1864). Significant noise reduction will be obtained and a
significant number of employees will benefit from the lowered noise levels. It is clear
that the financial burden to Respondent, when compared with the abatement of the health
hazards to the employees as earlier described, makes these costs reasonable and the
imposition of the engineering controls required under the Act and the Noise Standard.
Department 2 contains approximately 70 presses, of which 41 are secondary presses and 25 are automatic (Tr. 2616, 2824). Approximately 49 employees are employed in this department as operators and setters (Tr. 2617). An automatic press operator's duties include monitoring the transportation of materials for the press, clearing parts from the press, and stocking the press with new materials (Tr. 2618). A secondary press operator's duties include loading the part into press, activating the press and ensuring that the part clears the die area (Tr. 2619). Also employed in this Department are die setters and other maintenance employees. Department 2 operates two shifts. Each employee works five days per week, approximately five to eight employees work on the weekend (Tr. 2086). The parts produced in Department 2 are removed from the press by either a blowoff mechanism, a mechanical ejection method, or in some instances the part drops out of the bottom of the die (Tr. 2084).
The Secretary's expert determined that the greatest source of noise in Department 2 was the air ejection system used to remove and transport parts from the dies (Exhibit C-23). This fact was known to Stewart Warner (Exhibit C-55). Respondent, in August of 1973 and October of 1979, performed studies which identified jet airblasts as the major source of excessive sound levels (Exhibits C-49, C-55). The Secretary's expert concluded that control of the air blasts could reduce employee exposure by at least 5 dBA at cost of $25 to $40 per air nozzle (Tr. 763, 765). To demonstrate the capability of noise suppression that could be achieved through use of air mufflers, the expert had performed several experiments wherein he insolated noise occurring from the jet airblasts; such experiments revealed that noise levels could drop from 101.5 dBA to 93.8 dBA (Tr. 753, 754). The costs for controlling air noise appears extremely reasonable in view of the results which could be obtained in noise reduction, and the number of employees who would benefit therefrom.
The air ejection system created noise in two distinct manners. The air ejection system was continually on during the stamping process. Noise was generated from the airjet, and from the air hitting the die on closing. The noise emanating from these sources could be controlled through use of a valving method allowing the air blast to be only when the part in the machine was ready to expelled. When the machine was cycling the air valve would discontinue the flow of air, thus eliminating significant amounts of noise.
A second method of noise control dealing with the air ejection system involved the use of multiple air ejection nozzles to be substituted for one single nozzle for removal and transfer of materials from the die to the to the part bin (Tr. 762, Exhibit C-23).
The inclusion of air ejector mufflers was also found to be a significant noise control device. Respondent's own supervisory employees and other witnesses, who operated the presses recognized that the most efficient means of air noise reduction in Department 2 would be through the use of mufflers on the air ejector system (Tr. 2621, Exhibits C-78, p. 60, C-67, C-12, p.3). It was estimated that installation of such mufflers could provide greater air thrust requiring lower air pressure in the system. This could result in 76 percent less air consumption with a significant energy cost savings (Exhibit C-11, p. 6).
Air noise problems could be eliminated with the use of air mufflers, the valving of continuously on air, and the use of a multiple air ejection system. Offsetting the cost of these controls is the fact that significant energy used in the current air ejection system could be reduced through the use of noise controls that require less air pressure energy. This would result in significant energy savings to the Respondent. We find that the control of air noise, as above described, to be a feasible engineering control with advantageous economic overtones justifying its use. It is clear the benefits to employees by significantly lowered noise levels, through these noise controls methods, well justify their reasonable costs and are found to be required of Respondent under the Noise Standard.
An alternative method of noise control recommended by the Secretary's expert was the use of a mechanical ejection system (Tr. 760, Exhibit C-23). A mechanical ejection system would be so designed that as the die in the press separated a series of linkages which serve to automatically remove and expel the part from the die without resort to a noisy air ejection system (Tr. 765). While the mechanical ejector system recommended by the Secretary may be a possible technologically feasible control, we find that the Secretary did not establish this fact by a preponderance of evidence. The proof supplied by the Secretary on this point amounted to nothing more than the general recommendations of its expert, providing no backup information demonstrating the feasibility, workability or cost of this recommended control.
The Secretary's expert's general conclusions are not sufficient to adequately carry the burden of proof necessary in on the issue of the mechanical ejector's technical feasibility. Indeed, the Secretary's expert was totally unaware of the size, shape weight, number of dies, finish requirements or tolerances needed to adequately demonstrate that mechanical ejectors would be economically or technically feasible for installation (Tr. 1104, 1105). This information was absolutely essential to such a determination (Tr. 4423, 4424). Accordingly, this recommendation is not found to be feasible under the proofs submitted.
The last method of noise control recommended by Secretary's expert dealt with the partial and full enclosures of the punch presses (Tr. 1107, Exhibit R-4, Tr. 950, 951). It was conceded, however, that the recommended use of full and partial enclosures was not, with certainty, the most cost effective method of reducing employee exposure to noise (Tr. 951, 952). Additionally, this record is absent any evidence of a study of work routines, employee operations, or machine operations necessary to establish or demonstrate that enclosures were feasible and were compatible with the work processes and employee operations.
The Respondent's expert had concluded that a full enclosure for a manual press was not technologically feasible (Tr. 4426). Throughout his professional career he had never seen a manual press with a full enclosure; this included visits to at least 250 plants (Tr. 4426). I find Respondent's expert's opinions and observations, that a full enclosure for a manual press Is not feasible, persuasive and reliable (Tr. 4426). With respect to full enclosures for automatic machines, Respondent's expert indicated that such a recommendation might be considered on a machine by machine basis, but that there was insufficient information developed to pursue any knowledgeable decision (Tr. 4428). Respondent's expert found the same true with respect to partial enclosures, indicating that a determination of feasibility required much more Information than presently was available in the engineering report of the Secretary's acoustical engineer expert together with his testimony (Tr. 4429, 4430). Again we agree with Respondent's expert and accept these conclusions as controlling herein.
We can only conclude that while we do not find
partial or full enclosures for automatic presses infeasible. there is insufficient
evidence in this record to indicate that such controls are feasible, and as such we find
that the Secretary has not carried his burden in demonstrating, through a preponderance of
evidence, the feasibility of these proposed noise controls. Accordingly, such controls at
this point would not be imposed upon the Respondent.
The manufacturing equipment located in Department 6 consists of 28 screw machines, of which there are three different makes (Tr. 2199). As in Department 75, operators would run two machines during an eight-hour day (Tr. 2199). The automatic screw machine operator would set up and operate the machines, performing all tasks necessary for their efficient operation (Exhibit C-15). Basically, the machines located in Department 6 operated generally the same as the Davenport machines in Department 75 (Tr. 2200, 2201, 2203). As with the screw machines in Department 75 enclosures were found to be an appropriate noise control device. The enclosures for Department 6's screw machine were off-the-shelf items representing current technology. The enclosures were designed to be totally compatible with the manufacturing maintenance processes of the screw machines. The Secretary's expert calculated the cost of enclosures as between $6,000-8,000 piece (Tr. 779). The lower cost would be indicative of an enclosure bought with the new machine while the $8,000 figure represented the price for a retrofit enclosure purchased for a machine currently at the plant (Tr. 779). As with the Davenport machine, the manufacturer of the Acme-Gridly machine, a type used Department 6, specifically made screw machine acoustical enclosures at cost ranging from $4,150- $5,600 (Exhibit C-18, p. 7). Noise reductions of between 12-18 decibels were available with this type enclosure (Exhibit C-18, p. 8). Significantly, Industrial Sound Control, a manufacturer of screw machine acoustical enclosures, had produced noise enclosures ranging in cost from $2,500-$4,000. Such enclosures enabled customers to meet all OSHA requirements (Exhibit C-16, p. 15). The costs of enclosures appear reasonable when compared with amount of noise reduction obtained and number of employees affected.
In September 1979, the National Acme Company informed Respondent that total acoustical enclosures capable of reducing sound levels to approximately 85 dBA were available for its Acme-Gridly machines (Exhibits C-70, R-22, pp. 3, 6). While the Respondent indicated that it would not be feasible to place noise enclosures on these machines since they would be retired soon, this argument is rejected since there was no indication of the length of the useful life of the machines and how long Respondent intended to use them (Tr. 2778, 2779). It appeared that these machines still could be used for an indefinite period of time (Tr. 3602). Moreover, we found that Respondent made no representations that any machines would be retired, or that new machines were on order, or that there were plans to order machines (Tr. 3602, 3603, 3064).
We find the Secretary's expert quite persuasive with respect to screw machine acoustical enclosure as a feasible engineering control. Furthermore, it is clear from the evidence that noise enclosures are a standard state of the art engineering noise control fully compatible with the screw machine's operation and manufacturing process. As earlier mentioned, we do not accept the calculations or conclusions of witness Mr. Rai concerning the nonfeasibility of these controls. We particularly find this evidence unreliable. In those instances where Respondent's acoustical engineering expert's conclusions were predicted on Mr. Rai's study, we cannot find the same degree of persuasiveness we have found with some of his other opinions.
We find the recommended noise enclosures for those screw machines that have a useful life of at least three years from the date hereof to be a technically and economically feasible control whose benefits to employees health require that Respondent obtain and install same for Department 6.
The Secretary's expert also proposed for Department 6 the use of acoustical tile of baffling for the walls and ceilings (Tr. 774). With respect to baffling, this is a commercially available device in the recommended size of 2 foot by 4 foot panels, ½ inch in thickness, and having a plastic coating designed to resist oil and other air suspended contaminants. The Secretary's expert estimated the installed cost of the baffling at S1.00 to $1.50 per square foot (Tr. 775, 1111, Exhibit C-23, p. 3). The expert estimated that the noise reduction that could be achieved with this application would range between 2 and 5 dBA, the least noise reduction, 2 dBA, occurring between two operating screw machines that were not equipped with acoustical enclosures (Exhibit C-23, p. 3, Tr. 775, 776).
The record shows that the Secretary's expert spend a minimum amount of time in Department 6 developing his conclusion that baffles and ceiling tiles were an appropriate engineering noise control. We find this witness not very familiar with the physical condition of Department 6. He did not know the specifics concerning the existing fire and sprinkling system located near the ceilings, the location of the lighting and electrical systems. nor was he familiar with other piping found in the Department. The various piping systems did have a significant impact upon the feasibility of the acoustical baffling recommendation.
Respondent's acoustical engineering expert, on the other hand, performed an in-depth comprehensive sound measuring analysis of the workarea of Department 6 (Tr. 4508- 4523). His skillful review of the acoustics of Department 6 revealed to him that most operators of equipment would receive no more than 1 to 2 decibels of noise reduction. Additionally, he found that the fire extinguishing piping, as well as the electrical and lighting piping and fixtures would significantly interfere with the placement of noise baffles (Tr. 4649, 4537-4539). He further found that ceiling tile would not be as effective a noise suppressant as noise baffles (Tr. 4534). Respondent's expert estimated that the installed cost of baffling would be approximately $2.50 per square foot, for a total cost of $180,000 (Tr. 4669, 4670).
We are inclined to find the testimony of Respondent's expert more persuasive on the point of acoustical baffles and titles than the Secretary's expert. Respondent's expert conducted a much more in-depth analysis of the acoustics of Department 6, and thus we find his conclusions better placed. We find that, at this given time, without the installation of noise enclosures for the screw machines the use of ceiling tile or baffles is not a feasible engineering control. We reach this conclusion for two reasons. First, looking to the economic aspect of proposed noise control we find the expenditure of approximately $180,000 to obtain only one or two decibels of noise reduction not a reasonable economic trade off since the benefit in noise reduction experienced by the employees does not balance reasonably with the cost incurred. This is evidenced even more so with the use of ceiling tile since it produces even less noise suppressant.
Secondly, we find that in the case of baffles, as a matter of fact, their installation would be compatible with the fire sprinkler system or the electrical lighting and piping in the workplace. To install the baffling below the fire sprinkling system or the lighting system would degrade the fire fighting system and present a serious bumping hazard to employees, in addition to interfering with movement of material and equipment through the workplace. The suggested use of sound absorption foam on the walls and ceilings, we find to be both a health and fire hazard (Tr. 4532, 1115).
Lastly, open airjets in Department 6 were found to be
a significant noise source. The installation of valving or mufflers on this noise source
was not disputed in these proceedings, and apparently was something that amounted to no
more than required maintenance work. Both experts were in agreement that the noise source
was something that was easily controlled with appropriate mufflers, valving or maintenance
XI. CONCLUSIONS AND SUMMARY
We find the evidence clear, convincing and reliable that excessive noise levels, as reported by the compliance officer, existed in the workplace. We further find that these excessive noise levels had a significantly adverse effect on the hearing of those employees exposed. We find Circuit case law mandating that in weighing costs against benefits the benefits to employees, in the reduction of noise levels through engineering controls, must weight heavier in the balance than the costs. Accordingly, under the "cost-benefit" theory, feasible engineering noise controls was the mandated method of abatement of the noise hazard in Respondent's workplace.
In the instant case, we find that the engineering controls, found technologically feasible, also came with a favorable economic feasibility component (i.e., a reasonable balance between the cost of the controls, the amount of noise reduction obtained, and the number of employees affected) and that they provided to employees health benefits which could not otherwise inure to them through the use of personal protective equipment, a means of abatement far less costly in terms of dollars and cents.
The evidence established that employees in the workplace were not faring satisfactorily with the use of personal protective equipment, and that hearing loss or trends towards hearing loss, which employees experienced, could be arrested with the imposition upon the employer of the obligation to install the more costly engineering control methods.
The Secretary had determined that certain engineering controls were technologically feasible and we agree in part with that determination. In those instances where we agree with the Secretary's conclusions, we deal with standard state of the art, uncomplicated but effective, noise controls. This case does not deal with exotic engineering devices commanding significantly expensive materials and engineering services. The noise controls found feasible in this case are standard off-the-shelf items having current competitive market prices.
We find that acoustical noise enclosures for screw machines in Department 75 and Department 6 will assure significant reductions of noise levels to and below the levels mandated by the Noise Standard. These controls, when viewed from an economic standpoint, present a well balanced expenditure of funds when comparing costs and noise abatement properties. Indeed, the Respondent had programmed for the purchase and installation of these controls, and in fact had some in place, demonstrating their effectiveness. Both parties' experts in this case concurred that acoustical enclosures for screw machines were feasible engineering controls for this Respondent (when each was fully and realistically aware of the operations carried on by the operators of the machines). Accordingly, we find it to be the obligation of the employer to utilize and install acoustical noise enclosures on all its screw machines, that have a useful life of three years from the date hereof, in Departments 6 and 75.
We find that the control of air noise, a significant noise source in Department 2, a realistic and cost effective noise abatement method. The continuous flow of high pressure of air, as a means of ejecting parts from punch press dies and sending them into bins, created high levels of noise. The installation of waiving, which would control the flow of air at the precise time of injecting the part. the use of mufflers, and the use of multiple jets, represent a we'll recognized state of the art noise control. The cost for such valving and mufflers, again. is not expensive since they are off-the-shelf items competitively priced. Additionally, their use would represent significant savings to the employer by reason of the conservation of energy used for high pressure air.
We find that the Secretary did not adequately
preponderate on the issue of technological feasibility of enclosures, partial enclosures,
ceiling tile and acoustical panels. The Secretary failed to provide adequate technical and
economic data to make a case for their use. The same is true with respect to mechanical
ejectors; the record was totally absent sufficient technical and cost information or data
to indicate that this control was indeed a feasible engineering noise control having a
reasonable balance in terms of noise suppression and costs.
X. ABATEMENT DATES
In terms of abatement time, the evidence established
that all the screw machines can be enclosed within an 18 month period. Acoustical
enclosures on screw machines are readily available from the manufacturers of the screw
machines as well as other sources; installation time would be consistent with the 18 month
abatement period. Installation of all controls associated with noise sources from the air
ejection systems can be performed within six months since components needed are readily
available from commercial sources and easily obtained. Installation time is nominal.
XI. NATURE OF VIOLATION
The condition alleged in the Citation is one that
dates back a significant number of years. The Respondent had been cited for the identical
violation in 1977. That Citation had been affirmed; indeed the Respondent had on several
occasions sought abatement date modifications. The current citation cites the same
violation, at the same location, as the earlier 1977 Citation, and accordingly will be
affirmed as a Repeat Citation, (see pp. 9 and 10, supra).
The evidence has demonstrated that the hazard associated with noise exposure is significant and serious (pp. 33 and 34, supra). We find employees not doing well in the workplace where excessive noise levels exist (pp. 38 and 39, supra). We find that this condition has existed for a significant number of years, and that the condition was well known by Respondent's supervision.
The evidence established that Respondent's program of personal protective equipment was the basic means of protection for employees from the hazards associated with noise levels. Respondent's monitoring of the employees' success in obtaining realistic protection through use of personal protective equipment was found to be indifferent bordering on nonexistence. There essentially was no monitoring of the health of its employees (pp. 42 to 44, supra). Respondent's monitoring of employees hearing through use of audiometric examinations was a sham designed only to show ostensible compliance with the Act, and not at all used to monitor whether its program of personal protective equipment program was working or was harmful to those employees who relied upon it for protection from the excessive noise levels.
We find that Respondent's noncompliance with the
Noise Standard represents a serious departure from its obligation to provide a safe and
healthful workplace for its employees. as required under the Act. Accordingly, we find the
imposition of a penalty in the amount of $1,000 to be appropriate after considering those
factors in Section 17(j) of the Act.
Based upon the foregoing Findings of Fact and Conclusions of Law, and for those reasons set out in my Decision and Order, and for good cause shown, it is ORDERED that
1. Repeat Citation Number 1 is hereby AFFIRMED, with abatement requirements and dates as setforth in my Decision and Order.
2. A penalty of $1,000 is ASSESSED.
Edward A. Bobrick
Dated: December 31, 1984
[[1/]] Jurisdiction of the parties and the subject matter herein is confirmed upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.
[[2/]] § 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 C-16 when measured on the A scale of a standard sound level meter at slow response. . .
(b)(1) When employees are subjected to sound [levels] 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.
Table G-16 -- Permissible Noise Exposures [[1/]]
Duration per day, hours
dBA slow response
|¼ or less||115|
[[3/]] 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 excess 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.
[[4/]] § 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. . .
[[5/]] The A added to dB (decibel) indicates that the decibel of sound was measured on the A scale of a standard sound meter at slow response, as required in 29 C.F.R. 1910.95(a). Additionally, decibels the basic unit of measurement of sound levels, are recorded on sound level meters according to several scales. On the A scale, the meter is more sensitive to higher pitched tones than those of a lower pitch, just as the human ear is. The "slow" response is another setting of the instrument by which it averages out high level noises of brief duration (such as hammering), rather than responding to the individual impact noises. See U.S. Dep't of Labor, Guidelines to the Department of Labor's Occupational and Noise Standards p. 3 (1971). Marshal v. West Point Pepperil, 588 F.2d 979 at 982 n. 5 (5th Cir. 1979).
[[6/]] "Impulse [or impact] noise shall be measured in the peak mode of a precision (Type 1) SLM [as opposed to the non-precision Type 2 instrument used by OSHA in this case] set to flat or unweighted response. Where flat response is not available, the C weighted network is used."
[[7/]] A term meaning a rate at which noise intensity or strength doubles with every 5 dBA increase in noise levels.
[[8/]] The Secretary's expert Mr. George Kamperman was queried as to certain statements made by him at an acoustical engineering conference in Canada, to the effect that dosimeters do read higher than the actual sound levels (Tr. 1152, 1168-1170). While at times the testimony given on this subject was confusing. I find that Mr. Kamperman adequately explained the rationale behind these statements, as well as his later statements that the dosimeter would indeed give accurate readings by reason of the scientific formula contained in Table G-16 (Tr. 1152-1154). In response to questions by the Judge to clear up the apparent conflict in his testimony, Mr. Kamperman explained that the dosimeter would take inconsistencies of sound into account when it automatically calculated the G-16 formula on sound level measurements over periods of time (Tr. 1154), and that the sound level meter component of the dosimeter would read noise accurately, and in particular it would read and record accurately the type of noise found in Respondent's workplace (Tr. 747, 1096, 1152, 1153, 1154, 1156, 1157, 1174, 1182, 1183).
[[9/]] Be it as it may, this ruling seemed inconsistent with the holdings that financial burdensomeness was not a defense for employers in occupational safety and health matters. Industrial Union Department, AFL-CIO, et al. v Hodgson, 499 F.2d 467 (D.C. Cir. 1974); American Federation of Labor, etc. v. Brennan, 530 F.2d 109, at 122, 123 (C.A. 3, 1975).
[[10/]] As will be discussed below, a program of personal protection equipment (earplugs) will not provide noise hazard protection to employees as advertised, expected or generally understood, and definitely not the same protection that is associated with engineering noise controls (pp. 35 to 39 infra).
[[11/]] The same is true with respect to the holding of the 5th, 6th, and 9th Circuit.
[[12/]] We believe the language of the Seventh
Circuit is well worth repeating as it plays a decisive role in bringing understanding to
the legitimate priorities within the cost-benefit theory in terms of employee protections;
and in that it fits precisely into these proceedings by reason of the facts of this case.
The court held,
"the benefit to employees from implementation of engineering noise controls will be substantial. The use of personal protective equipment has not prevented hearing loss and hearing difficulties among these employees. Implementation of engineering controls will bring all 80 employees within permissible noise exposure levels" (at 989). (Emphasis added)
[[13/]] "...Moreover, earplugs and muffs have significant limitations. They are subject to employee resistance because they are uncomfortable. Not all employees can benefit from them. The Secretary put on expert testimony that noise reduction achieved by earplugs in actual use is less than half the attenuation achieved in laboratory tests. This has been recently borne out by a NIOSH-CDC study to the same effect. Hearing Protectors Field Measurement, Morbidity and Mortality Weekly Report, 607 (Nov. 19, 1982).
[[14/]] While not covered in this record, earplugs
worn throughout the workday tend to naturally work free of the ear canal through normal
mandibular movements in talking or chewing. This degrades the seal between the earplug and
ear canal allowing noise to enter the inner ear.