January 13, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

            A decision of Administrative Law Judge William E. Brennan is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter ‘the Act’]. In his decision Judge Brennan affirmed the Secretary’s citation alleging that respondent violated section 5(a)(2) of the Act by failing to comply with the requirements of the occupational safety and health standard at 29 C.F.R. § 1910.95.[1] The violation was found to be nonserious and a $35 penalty was assessed.

            Respondent’s petition for discretionary review of this decision was granted. In its petition and brief respondent challenged the Judge’s decision in respect to only two issues. First, it is urged that the Judge erred in granting the Secretary’s motion for a continuance so that additional expert testimony on the feasibility of engineering controls could be procured. Second, respondent asserts that the Judge erred in basing his finding that engineering controls are feasible on the testimony of the Secretary’s expert witness, an acoustical engineer. In respondent’s view, the testimony of its mechanical and design engineers, to the effect that engineering controls are not feasible, is the only probative evidence on this issue.

            Respondent’s objection to the granting of the continuance is bottomed on the contention that the Secretary was given an unfair advantage in that the testimony of respondent’s expert was presented prior to the testimony of the Secretary’s expert.[2] As a result, respondent argues, the Secretary’s expert was placed in a ‘superior position’ in preparing and presenting his testimony.

            Our review of the record convinces us, however, that respondent was not forced to have its expert testify at that time. To the contrary, it appears that respondent’s evidence was received as an accommodation to respondent. Furthermore, respondent’s principal expert also testified after the Secretary’s expert gave his testimony, as did respondent’s other witnesses. It is therefore clear from the entire record that respondent suffered no prejudice as a result of the continuance. Under these circumstances it cannot be said that the Judge abused his discretion. Cf. Williams Enterprises, Inc., BNA 4 OSHC 1663, CCH 1976 77 OSHD para. 21,071 (No. 4533, 1976).

            Concerning the feasibility issue, respondent contends that the problem it faced in attempting to reduce noise levels involved designing methods of noise reduction, rather than identifying the sources of the noise. It therefore argues that the testimony of its mechanical engineers outweighed that of the Secretary’s expert.

            We note, however, that respondent’s contention that engineering controls are not feasible is based on the assumption that such controls are never ‘feasible’ unless they can reduce the noise levels below those specified in Table G 16. We have rejected this interpretation of the standard. Continental Can Co., Inc., BNA 4 OSHC 1541, CCH 1976 77 OSHD para. 21,009 (No. 3973, 1976); Turner Company, BNA 4 OSHC 1554, CCH 1976 77 OSHD para. 21,023 (No. 3635, 1976). The Secretary’s expert testified that several simple and economical means existed to achieve a significant reduction in the noise levels.[3] This testimony, if credited, is sufficient to show a violation of the standard. Continental Can Co., Inc., supra; Turner Company, supra. The Judge accorded greater weight to the testimony of the Secretary’s expert and we have no reason for differing with his evaluation of the expert testimony. In so concluding we are impressed by the fact that the testimony of respondent’s witnesses was based on an interpretation of the standard that we have rejected.

            Accordingly, it is ORDERED that the Judge’s decision finding respondent in violation of the Act for failure to comply with the standard at 29 CFR § 1910.95 and assessing a penalty of $35 is hereby affirmed.




William S. McLaughlin

Executive Secretary

DATED: JAN 13, 1977


MORAN, Commissioner, Dissenting:

            The citation should be vacated because respondent did all that was required of it under the Occupational Safety and Health Act of 1970 to protect its employees from noise hazards. In this connection, Judge Brennan found in his decision which is attached hereto as Appendix A that:

The evidence further reveals that since 1972 Respondent has had a mandatory personal protective program operating at its Williamsburg brewery at the locations at issue in this case. Various types of ear protectors, plugs, muffs, etc. have been issued to operators at these locations and their use has been enforced . . . This aspect of the case as well as the infeasibility of administrative controls are not seriously challenged by Complainant.[4]


            Furthermore, the parties stipulated that the personal protective devices provided by respondent did ‘alleviate noise levels . . . to within permissible levels.’

            The only purpose of the Act is to protect employees from workplace hazards. 29 U.S.C. § 651(b). The gravamen of the charge against respondent is a violation of the Act—specifically 29 U.S.C. § 654(a)(2)—not a violation of 29 C.F.R. § 1910.95.[5] It is therefore obvious that such a charge cannot be affirmed unless there is proof that respondent’s employees were subjected to an occupational hazard which respondent had not reasonably attempted to abate. See Secretary v. John T. Clark & Son of Boston, Inc., OSAHRC Docket No. 10554, December 22, 1976 (dissenting opinion). That proof is lacking in the instant case.

            Where, as here, personal protective equipment adequately protects employees from impermissible noise levels, it is unjust and contrary to the purpose of the Act to require an employer to expend substantial funds to implement engineering controls. See Secretary v. Continental Can Company, OSAHRC Docket No. 3973, August 24, 1976; Secretary v. Turner Company, OSAHRC Docket No. 3635, August 24, 1976 (dissenting opinion). This is particularly true in bottle and can packaging facilities whose sanitary conditions are rigidly controlled by the Food and Drug Administration. The sanitary requirements of that agency have a substantial bearing on the feasibility of using various engineering controls. The evidence in this case shows that some of the engineering controls recommended by complainant’s expert would run afoul of the Food and Drug Administration’s sanitary requirements. Respondent should not be responsible for resolving such conflicts between two agencies, especially where, as here, adequate employee protection is clearly provided.

















October 23, 1975



FOR THE SECRETARY OF LABOR Marshall H. Harris, Regional Solicitor Matthew J. Rieder, Esq. U.S. Department of Labor


FOR THE RESPONDENT Knut C. Heise, Esq. Assistant General Counsel


Brennan, W. E.; A.L.J.

            This action arises under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c) (hereinafter the Act), to review a Citation for Nonserious Violation of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2) and penalty proposed thereon, issued pursuant to Sections 9(a) and 10(a) of the Act, 29 U.S.C. 658(a) and 659(a) on October 8, 1974 by the Secretary of Labor through the District Supervisor of the Occupational Safety and Health Administration for Norfolk, Virginia (hereinafter Complainant), to Anheuser-Busch, Inc., (hereafter Respondent), following an inspection of one of its breweries located at Williamsburg, Virginia (hereinafter worksite) on September 24 and 25, 1974.

            Respondent filed a timely Notice of Contest and after a Complaint and Answer thereto were timely filed, this case came on for trial, pursuant to Notice at Norfolk, Virginia on February 21, 1975, which was continued on April 8, 1975 in Washington, D.C., being completed on April 9, 1975.

            Both parties were represented by able counsel. No affected employees or representatives thereof desired party status.

            Post-hearing briefs were filed by both counsel by June 11, 1975.

            Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations and admissions of the parties, it is concluded that the substantial, reliable and probative evidence of this record considered as a whole supports the following findings of fact and conclusions of law.

            The Citation for Nonserious Violation as issued set forth the following:


Abatement Date

Description of Alleged Violation

29 CFR 1910.95

1 Nov. 1975 (See Note)


The employer failed to implement feasible engineering or administrative controls to reduce the sound levels in the packaging department at the line #10, #20, and #30 fillers and at the climax uncaser.



Note: To achieve compliance the employer must determine if feasible administrative or engineering controls can be utilized to reduce employee exposure to sound levels within the levels of Table G–16. Use of personal protective equipment is an acceptable method of abatement only if it has been determined that administrative or engineering controls are not feasible.

            As an interim measure, personal protective equipment shall continue to be utilized until such time as abatement can be achieved through administrative or engineering controls. In addition, a continuous and effective hearing conservation program shall be administered. In this regard your attention is invited to the enclosed pamphlet entitled NOISE (OSHA 2067), and particularly to page 12.

            A progress report must be submitted to this office at the close of each 30 day period. These reports must specify what has been done and what remains to be done to effect abatement.

            A penalty of $35 was proposed.

            The cited Standard provides in pertinent part:

29 C.F.R. 1910.95

(a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G–16 when measured on the a scale of a standard sound level meter at slow response.


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


Table G-16 Permissible Noise Exposures

Duration per day, hours

Sound level dba response











1 ½






¼ or less



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

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


            Respondent in its prehearing submission formulation of the issues stated:

Respondent submits that, although the Citation, as subsequently adopted by reference in the complaint, alleges failure of sound level reductions at 4 specific locations (line 10, 20 and 30 fillers and at the climax uncaser) by way of feasible engineering or administrative controls, there has been no allegation that the sound levels at the said locations do exceed permissible limits.


            Notwithstanding the lack of a specific allegation as aforementioned, Respondent admits that, at the time of the alleged violation, sound levels at these specific locations did exceed, to some degree, permissible noise levels as provided in 29 CFR 1910.95.

            Notwithstanding this admission, Complainant’s Motion to Amend the Citation and Complaint herein to allege that Respondent’s employees at the stated locations were exposed to sound levels in excess of the limits prescribed in Table G–16 of the cited Standard, made pursuant to Rule 15(b) of the Federal Rules of Civil Procedure at the end of its case in chief, was granted without objection (TR. 476–478).

            The following relevant matters were stipulated to by the parties:

A. Anheuser-Busch, Inc., Respondent herein, is a corporation duly incorporated under the laws of the State of Missouri with principal offices at 721 Pestalozzi Street, St. Louis, Missouri 63118.


B. Anheuser-Busch, Inc. operates a number of brewing facilities in various states and has been, at the time of the alleged violation, engaged in a business affecting commerce.


C. At the time and place of the alleged violation, Respondent had in its employ no person who was injured.


D. All of the equipment and machinery situated at Respondent’s brewing facility at 2000 Pocahontas Trail, Williamsburg, Virginia 23185 was, at the time of the alleged violation, owned [and or controlled] by Respondent. (See amendment to Stipulation TR. 3)


E. Respondent’s brewery facility at Williamsburg, Virginia was, at the time of the alleged violation, and is now the only such production facility in the area.


F. Respondent’s total sales for the year preceding the year in which the alleged violation took place (1973), for all its brewery locations was $1,109,707,000.00, based upon total shipments of 29,891,193 BE (Barrel Equivalent), of which shipments 2,259,795 BE (Barrel Equivalent) was allocable to Respondent’s Williamsburg, Virginia brewery facility.


G. Respondent has no history of any previous violations or alleged violations of laws or regulations affecting the health or safety of employees at its Williamsburg, Virginia brewery facility.


H. The average daily number of employees at Respondent’s brewery facility at Williamsburg, Virginia is 331.


I. The parties hereto further stipulate that specially designed hearing protection devices, commonly known as muffs and plugs, if and when worn by Respondent’s employees at the cited areas do attenuate the noise levels for such employees to within permissible limits.


Based upon these stipulations it is concluded that Respondent is an employer engaged in a business affecting commerce, having employees within the meaning of Section 3 (5) of the Act, 29 U.S.C. 652(5) and the Review Commission has jurisdiction of this matter under the provisions of Section 10(c) of the Act, 29 U.S.C. 659(c).


            The evidence of record reveals that on September 24, 1975, Mr. Hartmann, a Compliance Officer and fully qualified Industrial Hygienist with Complainant (TR. 56–57), in response to an employee complaint concerning high noise levels at Respondent’s Williamsburg powerhouse, made an inspection of this worksite. During this inspection he noted high noise levels in the packaging area, took some 40 to 50 sound level readings with a General Radio sound level meter and found them to be excessively high’ (TR. 69). He decided to return the following day to obtain as close to an eight-hour employee exposure to these high sound levels as possible at four operator stations, to wit, the ‘climax uncaser;’ bottle line #30; can line #20 and can line #10.

            On September 25, 1975, he did return to Respondent’s worksite and measured the employee exposure to noise at the four locations abovementioned using a DuPont Audio Dosimeter. This is a portable, battery operated instrument which measures an employee’s cumulative exposure to noise levels during the test period. A microphone is worn by the test subject on his shirt collar. The noise picked up by the microphone is converted into an electric impulse and through an electroplating process in the memory cell of this instrument records the cumulative exposure to noise levels. This data is calculated and integrated with time. At the conclusion of the test period, this meter produces a digital readout which is the percentage of permissible exposure provided in Table G–16 of the cited Standard. Thus a digital readout of 100% would be equal to an 8-hour exposure to 90 dBA; or a 4-hour exposure to 95 dBA, or a 2-hour exposure to 100 dBA, that is, the maximum exposure allowed under Table G–16. A readout of 200% means twice the maximum allowable exposure under this table. Mr. Hartmann opinioned that this instrument is reliable, is used by some industries and he uses it frequently in his official duties. It has gained wide acceptance as an excellent instrument. It does have a limited instrument error so that he does not recommend any action unless the readout obtained is 140% or greater (TR. 67–77).

            It is concluded that the noise exposures obtained by Mr. Hartmann infra, using the identified dosimeters, which were properly calibrated and utilized, are accurate and reliable.

            The results of the dosimeter tests were as follows:


Employee tested

Work station

Duration of test

Dosimeter finding

Mr. Beckerley

Climax unpacker

7 hrs. 45 min.

174% (TR. 79-81)


Mr. Parks

Line #30 bottle filler

7 hrs. 44 min.


308% (TR. 80-81)


Mr. Radcliffe

Line #20 can line

7 hrs. 42 min.

280% (TR. 80)


Mr. Jones

Line #10 can line

7hrs. 47 min.

214% (TR. 70)



Sound level meter readings also taken at or near the above work stations were as follows:

Climax unpacker—90 to 93 dBA (TR. 62);


Bottle line #30—99 to 100 dBA (TR. 66);


Can line #20—98 to 100 dBA (TR. 80);


Can line #10—99 to 101 dBA (TR. 66).


No area in the vicinity of the machines in the packaging area had noise levels below 90 dBA (TR. 67).

            This evidence, which is neither contested nor rebutted by Respondent, conclusively establishes that these employees of Respondent, at the indicated locations at this worksite, i.e., those set forth in the Citation herein, were exposed to noise levels exceeding permissible limits under the cited Standard.

            This then brings us to the questions posed by this case.

            Respondent, acknowledging the existence of noise levels at these locations in excess of those permitted by the cited Standard, takes the position that it is not in violation of this Standard because there are no known ‘feasible’ engineering or administrative controls available to it to reduce these noise levels. Consequently, under the terms of the cited Standard, it is justified in resorting to personal protective equipment, (i.e., ear plugs, ear muffs) for their employees at these locations.

            The Respondent does not take issue with the clear and unequivocal provisions of the Standard, which in subparagraph (b)(1) provides:

When employees are subjected to sound exceeding those listed in Table G–16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G–16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table. 29 C.F.R. 1910.95(b)(1).


            Thus, under the terms of this Standard, where noise levels exceed those in Table G–16, the priority of corrective measures are first, ‘feasible administrative or engineering controls’ and only if these measures fail, then secondly, the use of ‘personal protective equipment.’[6]

            Thus, we arrive at the basic issue presented by this case, that stated in the Citation as issued to wit, did Respondent ‘. . . fail to implement feasible engineering or administrative controls to reduce the sound levels in the packaging department at the line #10, #20, and #30 fillers and at the climax unpacker,’ to permissible limits under the cited Standard.

            The Respondent argues ‘no’ to this question because there are no known ‘feasible’ engineering or administrative controls available to it. The Complainant argues the contrary.

            The first question to be resolved then is what is meant by ‘feasible’ engineering or administrative controls as used in this Standard.

            The word ‘feasible’ is not defined in either the Act or Standards. Thus, the common and ordinary meaning of this term is applicable.

            Webster’s New World Dictionary, 2nd College Ed., 1972, defines this word to mean: ‘1. capable of being done or carried out; practicable; possible, 2. within reason; likely; probable, 3. capable of being used or dealt with successfully; suitable.’

            In my view, ‘feasible’ engineering or administrative controls, as used in the cited Standard, means those controls which are reasonably capable of successful accomplishment under the circumstances present in each case.[7]

            Under the cited Standard, it has not as yet been definitively determined which party has the burden of establishing that ‘feasible’ engineering or administrative controls are available to a Respondent to reduce noise levels to those proscribed in the Standard.[8]

            In my view, under the rational announced in National Realty and Construction Co., Inc. v. OSHRC and Sec. of Labor, 489 F2d 1257 (CADC, 1973) at 1267 and under the terms of the Standard at issue, the Complainant must shoulder the burden of establishing the availability of feasible engineering or administrative controls to sustain a violation such as is charged herein.

            Consequently, during the first day of trial held on February 21st, Complainant’s request to keep his case in chief open to allow an expert witness to testify concerning the availability of feasible engineering controls was granted (TR. 116–127).

            Thereafter on March 20, 1975, with the full cooperation of Respondent, Complainant employed an outside noise control engineer, Mr. Botsford, to conduct a noise survey at the Williamsburg brewery, to determine whether it was feasible to reduce noise levels at those operations named in the Citation. When the trial was reconvened on April 8, 1975, Mr. Botsford appeared and testified as Complainant’s expert witness (TR. 407–469).

            Mr. Botsford holds a B.S. degree in physics and an M.A. degree with a thesis topic of acoustics from the University of Texas.

            From 1952 to the middle of 1973 he was in charge of noise control for the Bethlehem Steel Corporation when he resigned to establish his own consulting business in the field of acoustics. At Bethlehem he had the responsibility for solving noise problems at that company’s offices, mines, shipyards and general operating areas. He is a fellow of the Acoustical Society of America, an honor grade of membership conferred in recognition of the contributions he has made in the field of the prevention of occupational hearing loss. He is a member of the Committee on Noise of that organization and for two years was its Chairman. He was the editor of a leading publication in the noise field, Sound and Vibration until 1973. He is a Director of the Institute on Noise Control, a nonprofit Pennsylvania corporation engaged in presenting training courses on noise.

            He has been active in the field of establishing standards relative to occupational noise exposure throughout his professional career, being one of four employer representatives of the Standards Advisory Committee on Noise to the Occupational Safety and Health Administration. He has been a consultant to the National Institute for Occupational Safety and Health participating in the preparation of criteria documents on noise. He is a consultant to the Office of Noise Abatement of the U. S. Department of Transportation on vehicle noise and has taught seven courses on highway noise control sponsored by the Federal Highway Administration. He has been a consultant to the Environmental Protection Agency at hearings held in Denver and Boston preparatory to drafting the Noise Control Act of 1972. He has been a member of a ‘peer group’ of the Department of Labor to review proposed revisions in the noise Standard at issue.

            In the private industry sector, he has been a consultant to such large companies as Armco Steel Corporation, Litton Industries, Catapillar Tractor Company, Central Vermont Sand Blast Trade Association, Fireman’s Fund Insurance Company, International Telephone and Telegraph Company, Liberty Mutual Insurance Company, Union Carbide Corporation, Mack Truck Company, Metropolitan Edison Company, Mobil Oil Corporation, Owen Corning Fiberglass Corporation, Pennsylvania Motor Truck Association, Philadelphia Electric Company, Phoenix Forging Company, Polymer Corporation, Republic Steel Corporation and United States Metals and Refining Company (TR. 407–410).

            Mr. Botsford obviously is a highly qualified expert in the field of acoustical engineering or noise control, both by education and long and varied professional experience.

            This witness stated that the function of an acoustical engineer, broadly defined, ‘. . . is to assess noise, appraise its effects and work towards the correction of the conditions . . .’ (TR. 410)

            During his noise survey of Respondent’s Williamsburg plant, Mr. Botsford studied the locations set forth in the Citation as sources of excess noise levels, i.e., the ‘climax unpacker,’ the beer can-filler and seamer (closing) machine, and the bottling line, (Exh. C–1–C–4), measured noise levels and identified the source of certain noises using a sound level meter and oscilloscope (which transforms sound waves into visible waves for better identification), made magnetic tape recordings and took some photographs.

            His findings, confirmed the existence of noise levels in excess of these set forth in the cited Standard as found by Industrial Hygienist Hartmann, confirmed the reliability of the DuPont Dosimeter as a reliable instrument to measure cumulative employee exposure to various noise levels for various times (TR. 417–424) and in a letter to Complainant’s counsel dated March 31, 1975, made numerous, specific suggestions which in his opinion are feasible and would result in reducing employee exposure to within acceptable limits under the Standard (Exh. C–12).

            Mr. Botsford testified to measuring 93 dBA at the ‘climax uncaser.’ This is a device which precisely spaces cartons of empty bottles on a conveyor line so that the empty bottles may be mechanically removed therefrom. The uncaser has an arm or gate which functions to space the cartons on the conveyor line. This gate is lowered abruptly to accomplish its function. Mr. Botsford found that its downward travel is terminated by hitting some type of stop. He measured the noise level at this location when this gate was not operating and found it to be from 88 to 90 dBA. He therefore concluded, that a reduction of the noise level at this location could be feasibly accomplished by cushioning the stop for this gate with a rubber bumper or ‘dash pot’ which would more gently terminate the gates downward movement and eliminate the impulse component of this noise level (TR. 411–415, Exh. C–12).

            Respondent’s engineering witness, Mr. Spargo, testified that between Mr. Hartmann’s inspection on September 24, 25, 1974 and Mr. Botsford’s noise survey on March 20, 1975, a three to four dBA reduction in the noise level at the ‘climax uncaser’ was achieved by Respondent by muffling a compressed air blast at this location. Further, that its study of the gate mechanism noise, at a time not specified, but assumedly after Mr. Botsford’s visit, resulted in a finding that the impulse noise present was not due to the bumping of the gate upon a stop, but rather by the abrupt termination of the travel of a one-inch long ram of the air cylinder which drives the gate. Because of the short, one-inch travel of this ram there was insufficient space to pneumatically cushion both ends of the stroke of this ram. Consequently, Respondent experimentally planned on replacing this short ram with a two-inch ram to allow for a one-half inch pneumatic cushion on both ends of the ram travel. He was optimistic about bringing about a reduction in the impulse noise level at this location (TR. 595–596).

            It is precisely this type of engineering effort which, in my view, is required of employers under the Standard at issue. ‘The employer is required to think and use his expertise gained in the operation of his business in order to comply with the standard.’ Sec. of Labor v. Union Camp Corp., 8 OSAHRC 31 at 39, 40, May 1, 1974. Further, this evidence establishes conclusively that some type of engineering control, either those suggested by Mr. Botsford or those which admittedly were not intended to be all inclusive, implemented or to be implemented by Respondent are ‘feasible’ and available to this Respondent at this location. The record establishes however that these feasible engineering controls were neither developed nor implemented prior to the initial inspection. Thus, as to this location, the ‘climax uncaser,’ the evidence establishes the violation as charged.

            Mr. Botsford further testified that he spent most of his time during his noise survey at the Line No. 20 can-filler and seamer (i.e., closing) operation (Exh. C–2, C–4; R–5(1)). He identified three sources of noise at this location. The can lid-handling mechanism at the bottom of two tubes through which the can lids are fed into the machine (Exh. R–5(1) which produced a high pitched, scraping or hissing sound due to the mechanical handling of the lids. The second source identified was a compressed air jet located on the conveyor line where empty cans enter the filler, used to properly align the cans as they proceed into the filler. The third source was a hydraulic pump located behind the filler/seamer machine. He measured 100 dBA next to the pump, and further identified this sound, with the use of his oscilloscope as consisting of 1200 pulses per second, i.e., its hertz tone. This pump was mounted on a metal oil reservoir which acted like a drum. He measured the same 1200 hertz at the operator’s station for the can filler/seamer thus concluding that part of the excessive noise at this station came from this hydraulic pump (TR. 425–429).4

            Mr. Botsford made the following suggestions to correct the identified conditions.

            As to the first source, supra, he recommended the fabrication of a fiberglass shroud or box with appropriate sound absorbing material on its exterior surface, to replace the stainless steel box presently in use. An identical second shroud or box should also be fabricated to be available as a replacement for the first when the first is removed, during periodic maintenance or whenever necessary, to be sterilized. This would be necessary because beer is thrown around within this can lid-handling mechanism (TR. 431–435). Suitable sound absorbent material, highly resistant to abrasion and liquids and capable of withstanding sterilization temperatures is commercially available (TR. 444–461). He further recommended as a possible solution, drilling holes in the existing stainless steel shroud or box to emit the sound and then enclosing this stainless steel shroud with another shroud or box lined with appropriate sound absorbing material (TR. 458–461).

            As to the second source supra, the compressed air jet used to space the empty cans, he recommended that a commercially available nozzle be installed which would be quieter in operation than the nozzles presently in use and would result in a saving of the amount of compressed air needed for this function. He explained that noise is created by the stream of compressed air mixing with the relatively still air surrounding it. The resultant mixing region is the source of the noise. The recommended nozzles would significantly reduce this noise level (TR. 431–432, Exh. C–12).

            As to the third source, the hydraulic pump, Mr. Botsford, who had previously worked with noise problems connected with hydraulic systems, made three suggestions.

            The first, and most economical and simple, was to move the hydraulic pump (shown as a large white motor at the left of Exh. R–5(1)) some 15 to 20 feet away from the operator’s station at the can filler/seamer. Secondly, an appropriately configured barrier could be erected between the pump and the operator’s station. Thirdly the pump could be enclosed with a shroud or box lined with appropriate sound absorbing material (TR. 430–431; Exh. C–12).

            At the other location stated in the Citation, bottle line No. 30, Mr. Botsford made an investigation of the excessive noise levels and identified two sources.

            The principal source was bottle to bottle contact at that location on the bottle line where a large mass of bottles is merged down to a single line to be fed by conveyor belt into the bottle filler and capper machine. At the filler machine, he identified the crown or cap feeder mechanism to also be a source of excessive noise, primarily a hissing noise from compressed air used to move the caps (Exh. R–5(6)).

            He recommended enclosing the crown feeder in a sound absorbing shroud or cover, a simple and workable solution as this mechanism is relatively small, 9 inches by 2 feet (TR. 468) and apparently not subject to jamming problems. While observing this operation, Mr. Botsford placed his clipboard between where he was standing on the employee walkway and this crown feeder and noted a [9] dBA reduction of the noise level at his meter. He therefore concluded that a properly designed and installed shroud or cover would accomplishment significant reduction of the noise level emanating from this crown feeder (TR. 435–437, 467–470; Exh. C–12).

            At the bottle merging portion of this line he measured a noise level of 100 dBA. During his study, for some unexplained reason, the flow of the bottles stopped although the conveyor belts under the bottles continued to run. The effect was to compress the bottles together, and although the bottles were agitated by the unevenness of the conveyor belts running beneath the bottles, the noise level dropped to 88 dBA, a 12 dBA reduction. He therefore concluded that an alteration of the conveyor process would result in a reduction of the noise level at this location, suggesting increasing the speed of the conveyor belt and/or retarding the forward motion of the bottles to achieve a tighter compaction of the bottles, thus reducing the bottle to bottle contact noise. He suggested either some type of spring loaded side rail brakes or perhaps a rolling side belt to accomplish the slowdown of bottle movement and a better control of the rate of movement of the bottles (TR. 437–441).

            Although he would prefer the engineering solutions which he recommended to bring Respondent’s cited operations into compliance with the Standard as he believes them to be feasible, that is reasonably capable of accomplishment, he did acknowledge that a reduction of employee exposure to excessive noise levels could also be obtained by utilizing employee enclosures, which, through his experience, are capable of reducing exposure by as much as 30 dBA (TR. 441–442, Exh. C–12).

            Respondent’s defense to this action, essentially, is that it has tried to reduce the admittedly excessive noise levels at its breweries through engineering controls, carried on at one of its facilities at Columbus, Ohio, and has not been successful. Further, administrative controls, which essentially is the rotation of employees out of excessive noise level areas so that their cumulative exposure per work shift does not exceed the levels of Table G–16 of the cited Standard, are totally infeasible. Thus, it is justified in resorting to the use of personal protective ear equipment and is not in violation as charged.

            This defense was put in through three witnesses, Mr. Spargo, Respondent’s principal engineer in the beer packaging and shipping area and Mr. Hoffman of the Continental Can Corporation, as to the infeasibility of engineering controls and Mr. Tiemann, a 33-year employee of Respondent, presently its Manager of Operations Services as to the infeasibility of administrative controls.

            Mr. Spargo of St. Louis, Missouri, an employee of Respondent for some 27 years, is presently its Principal Engineer for Beer Packaging and Shipping, responsible on a corporate-wide basis for engineering projects and problems in that area, and since 1973 also covering noise problems. He obtained a degree in Mechanical Engineering from Tulane University in 1947. In the late 1960’s he took either a one- or two-week noise or acoustical course at the University of Michigan. He is a registered engineer in the State of Missouri and is a member of the American Society of Mechanical Engineers. He is chairman of the Food, Drug and Beverage Equipment Subcommittee of this Society. He does not consider himself an acoustical engineer nor has he ever been certified as a noise control engineer by any authority (TR. 128–132, 294, 295, 301).

            The record reveals that in February 1973 this Respondent was issued a Citation for alleged violations of the noise Standard (29 CFR 1910.95) at its Columbus, Ohio brewery. Evidently seven specified locations at that brewery were identified as sources of noise levels exceeding those permitted in the Standard, including a can filler/seamer and a bottle filler operation, among others. This Citation was not contested and the period for abatement and been extended. Further, some litigation may be pending in relation to that case. (TR. 257–272).

            However, following the issuance of the Citation covering the Columbus brewery, Respondent embarked upon a sound survey and noise abatement project at the Columbus brewery, under the supervision of Mr. Spargo. The results of this project were presented as Respondent’s Exhibits R–4, denominated a ‘punch sheet,’ and a revision thereof as of March 20, 1975, Exhibit C–11. These exhibits were admitted into evidence to show what corporate engineering efforts Respondent has exerted to bring its operations into compliance with the noise Standard on the theory that a multi-plant corporation may conduct experimental engineering work at one plant with the intention of implementing any successful results at its other plants (TR. 378, 582).

            Mr. Spargo testified that he participated in the design of both the Columbus and Williamsburg brewery facilities and that the general arrangement of the buildings are similar although the Columbus plant has five bottle and can lines whereas the Williamsburg brewery has three such lines, two can lines and one bottle line (TR. 134–137). Further, he compiled the list of suggested corrections reflected in Exhibit R–4 and this study was carried out at Columbus under his supervision by the personnel at Columbus indicated in the second column of this exhibit. The information appearing in this exhibit, as well as its revision Exhibit C–11, was obtained by Mr. Spargo by an unspecified number of personal visits by him to the Columbus plant and by telephone reports to him from persons assigned to implement the suggestions. All reports to Mr. Spargo were verbal, no written reports were made (TR. 149–154). Thus the weight to be accorded these Exhibits R–4 and C–11 is seriously diminished because, no underlying data was presented which would facilitate the verification of noise level readings appearing thereon and the conclusions stated in the ‘Remarks’ column. Furthermore, assuming the accuracy and reliability of the sound level data appearing in the upper left-hand corner of these two exhibits, there appears to be extensive inconsistencies between that data and the results reported under the ‘Remarks’ column of these exhibits.[10] Thus these exhibits are not legally adequate to support Mr. Spargo’s conclusion that;

‘There is not now currently known the technology to enable us to reduce the noise of the operation in the packaging operation below 90 decibels.’ (TR. 163).[11]


            Furthermore, the evidence reveals that no noise source survey has been done at the Columbus brewery since 1973 by qualified acoustical engineers, nor at any time at the Williamsburg brewery, the worksite here involved (TR. 301–309, 314, 383). Further the engineers conducting Respondent’s noise surveys and corrective efforts are in-house mechanical engineers, none of which, as far as the record discloses, having any particular qualifications as acoustical engineers (TR. 301–316). It is here that Respondent’s defense to this action must fail. Although properly motivated to correct its noise problems; it simply has utilized the talents of the wrong engineering discipline, that is, its in-house mechanical engineers, rather than fully qualified acoustical engineers.[12]

            The following candid testimony of Mr. Spargo, in my view, confirms this conclusion:

And we are in the process right now of attempting to hire two acoustical engineers with appropriate expertise, so that in effect, we can concentrate further on exactly what you are talking about. A cursory review, which is what I have done, [of] our efforts, have not been satisfying to us. For this reason, we are going into a more in-depth engineering effort to reduce noise (TR. 226).


            Further Respondent has not conducted any study nor has it retained any outside consultant to determine what noise reduction could be achieved by enclosing the entire bottle conveyor line up to the filler machine with some appropriate type of shield or enclosure. It had tried a partial plastic shield near the filler machine but Mr. Spargo concluded that this partial shield was impractical as it caused problems of sanitation and operator accessibility to that portion of the bottle line (TR. 381–382).

            After Mr. Spargo assumed corporate-wide responsibility for noise control in the latter part of 1973, he did not recommend that an outside acoustical engineer be retained to assist Respondent in solving its noise problems because ‘. . . it is obvious to a layman where the noise sources are. What we need are machine designers to find in effect ways and means of accomplishing the operation at lower noise levels.’ (TR. 382, 383).

            Essentially, Mr. Spargo has rejected suggestions concerning operator enclosures made by an acoustical engineer of Continental Can Company in late 1974 (Exh. C–6, C–7); and the suggestions of Complainant’s acoustical engineer, Mr. Botsford, on three grounds, restriction of employee movement, sanitation problems and if shrouds or covers are used on machines and conveyor lines, jams will not be able to be cleared quickly enough.

            These grounds are difficult, if not impossible to accurately evaluate because of the absence in this record of experimental or empirical data to support them. Mr. Snell’s recommendations as to operator enclosures has not been tried by Respondent (TR. 191), basically because of Respondent’s hope that the noise created by the filler and closing machines could be contained by an enclosure to be developed by the manufacturer, Continental Can Company (TR. 193).

            Clearly, the manufacture of beer does create some sanitation problems, as far as this record discloses, primarily mold growth caused in part at least, from the yeast used in this process. However, no bacteriological data was presented as to what molds are produced, what rates of development do occur, nor what types of sanitation procedure are required to inhibit such mold growth, i.e., time and temperature requirements for sterilization.

            Similarly, because of the lack of Respondent’s experimentation with machine enclosures, the magnitude of the jamming problem can not be accurately assessed.

            Respondent also produced Mr. Hoffman as a witness. He is the Director of Sales of Customer Equipment for the Cortinental Can Company, who supplies Respondent with its can filler/seamer machines. His forty-year career with this company has been spent in the closing machine business, i.e., involving the can seamer or closing machines. Mr. Hoffman stated that he was a graduate of Baltimore Polytechnic, Maryland Institute of Mechanical Arts and had attended McCoy College at John Hopkins University where his studies were interrupted by the war. He has taken a correspondence course in mechanical engineering. He is a graduate of the United States Army Engineering School and the American Association of Management School of Management. He has lectured on the maintenance of equipment in canning operations to the Petroleum Packaging Institute and on the training of maintenance personnel as a panel member for the Beer and Beverage Packaging Association in Atlanta in 1973. He is familiar with the design and function of can-closing machines sold by his company and has performed customer service and liaison functions between his company and its customers. He does not hold a degree in engineering nor any academic degrees. He has no formal training or practical experience in the science of acoustics of noise control (TR. 483–488).

            Mr. Hoffman’s experience and training obviously involve the efficient operation and maintenance of closing machines. He has not been involved, other than as a customer liaison man, with designing down the noise level of these machines.

            Mr. Hoffman testified that his company, aware of the high noise level created by its can-filling and seaming machine, thought it to be its responsibility to research into means to reduce this noise level. Consequently in late 1972 or early 1973, this company expended about $43,000 at its technical center in efforts to reduce the noise level of this type of machine at the operator station. The engineering department of Continental Can designed an enclosure for this machine, depicted in Exhibits R–10(1) through 16).

            The machine used in this test processed 1200 cans per minute—compared to the 1500 cans per minute machine at Respondent’s worksite. Noise level readings taken by Continental’s acoustical engineer before the installation of the enclosure at the operator station were from 98 to 100 dBA. With the enclosure in place, the noise level at this position was reduced to 87 dBA. As far as the evidence reveals, no further work has been done in this area by this company.

            However, in Mr. Hoffman’s view, this enclosure is not suitable for Respondent’s can-filling and closing machines because of problems of sanitation with the enclosure and inaccessibility to the machine to view and clear jams (See Exh. R–2).

            It must be noted that Mr. Hoffman was not involved in either the engineering or construction phase of this enclosure project, although he did view various stages of its assembly. In fact, he had no direct involvement in this project.[13] Further, whatever engineering reports were made concerning this project were not made available during the trial. This project was not undertaken at the request of the Respondent herein.

            Mr. Hoffman, possessing long practical experience with the can-closing machines his company builds was not qualified as having any acoustical engineering education or experience nor any training or experience in the field of bacteriology—a field necessary to make valid determinations concerning sanitation, i. e., mold growth, a problem presented in the manufacture of beer as alluded to earlier.

            Mr. Hoffman’s conclusions as to the lack of accessibility to the closing machine within the enclosure is not supported by the photographic exhibits depicting this enclosure. Exhibits R–10(1), (2), (3) and (4) show numerous doors in this enclosure which do provide accessibility. If transparent inspection ports were built into this enclosure, Mr. Hoffman’s objection that an operator cannot visually monitor the process would appear to be overcome. Some type of electronic or electrical monitoring for jams within this enclosure evidently has not been explored. Further, if the sharp, angular corners of the enclosure were modified to rounded corners, part of his sanitation objection could be overcome. Mr. Hoffman indicated that although, in his opinion, the exact enclosure experimented with by his company did have significant operational problems, he believed that further engineering efforts might overcome some of the difficulties he perceived. However, since the termination of this project, to his knowledge, his company has not done any further work on an enclosure for its can-closing machines (TR. 483–565).

            This then constitutes in necessarily abbreviated form, the relevant evidence of record concerning the availability of ‘feasible’ engineering controls to Respondent to bring its cited operations into compliance with the noise Standard. There is no question that Respondent is faced with a difficult task. The product it manufactures does present significant sanitation problems because of the yeast used in its production. The solutions to these problems may be difficult and necessitate the expenditure of significant amounts of money.[14]

            However, with the passage of the Act here involved, Respondent is obligated, through the use of scientific disciplines available to it, to wit, qualified acoustical engineers, bacteriologists and perhaps other disciplines, to correct the noise problems in its breweries so as to effect the declared Congressional purpose of this law—’. . . to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources—’ (Sec. 2(b), 29 U.S.C. 651(b)).

            As to administrative controls, Respondent clearly established that such controls are not ‘feasible’ at the worksite here involved through the testimony of its Manager of Operations Services, Mr. Tiemann (TR. 604–640).

            Each of Respondent’s can and bottle lines are manned by employees, who, per shift, constitute a team effort, with varying requirements and skills needed by each member. These ‘teams’ establish a work rhythm during their shift. Further, there are 34 employees working in the packaging and shipping area having 10 different starting times necessitated by the nature of the operations carried on in this area. Interchangeability of jobs within a shift was tried experimentally upon the union’s request but had to be abandoned because of varying qualifications needed for various tasks, and the unwillingness or inability of certain shift members to assume the needed responsibilities at critical operations in the lines.

            The evidence further reveals that since 1972 The Respondent has had a mandatory personal protective program operating at its Williamsburg brewery at the locations at issue in this case. Various types of ear protectors, plugs, muffs, etc. have been issued to operators at these locations and their use has been enforced. (See Testimony of Respondent’s witness Mr. Wizeman—TR. 641–671 and Exhibits R–14, 15, 16.) This aspect of the case as well as the infeasibility of administrative controls are not seriously challenged by Complainant.

            The evidence of this record in its entirety has been thoroughly and carefully studied and evaluated. On the basic issue presented by this case, to wit, whether ‘feasible’ engineering controls are available to this Respondent to bring the excessive noise levels found at the four locations cited into compliance with the noise Standard; Complainant’s evidence, the testimony of its expert witnesses Industrial Hygienist Hartmann and Acoustical Engineer Botsford has been critically weighed against Respondent’s evidence, the testimony of its Mechanical Engineer Mr. Spargo and Continental Can’s Mr. Hoffman.

            In my view more weight must be accorded Complainant’s evidence which leads to the conclusion that Complainant has established the nonserious violation as alleged in the amended Citation.

            Pursuant to the provisions of Section 17(j) of the Act, 29 U.S.C. 666(i), I have independently evaluated the criteria for the assessment of penalties set forth therein. Respondent is one of the largest breweries in in the United States, with ‘a number of brewing facilities in various states,’ with total sales for 1973 in excess of one billion dollars. It has about 331 employees at its Williamsburg facility.

            The gravity of the violation is small. No injuries are associated with this case. Respondent has evidenced good faith in utilizing personal protective equipment, was highly cooperative during the initial inspection in September 1974 as it was during Mr. Botsford study at its plant in March 1975. It has exerted a good faith effort to discover feasible engineering controls at its Columbus, Ohio plant, and has implemented favorable results at Williamsburg. It does have a history of prior violations of the cited noise Standard at its Columbus brewery, as detailed supra. That matter is evidently still the subject of litigation relative to abatement.

            Based upon this evidence it is concluded that the proposed penalty of $35 is appropriate and reasonable.

            Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, (29 U.S.C. 659(c) and 661(i), it is hereby,


            1. That the Citation for nonserious violation of 29 U.S.C. 654(a)(2) for failure to comply with the requirements of the Standard set forth at 29 C.F.R. 1910.95, and the penalty proposed thereon, are AFFIRMED.

            2. A total civil penalty in the amount of $35 is assessed against the Respondent herein.



Dated: October 23, 1975

Hyattsville, Maryland

[1] The standard in pertinent part provides:

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

Table G-16 Permissible Noise Exposures

Duration per day, hours

Sound level dba response











1 ½






¼ or less



[2] The motion for a continuance was first made a week prior to the hearing. The Judge denied it at that time in order to enable the hearing to start on schedule. At the hearing, however, the Secretary renewed his request for additional time to procure expert testimony. After the Secretary had presented his then available witnesses, the Judge granted the Secretary’s request. Respondent then proceeded to present its witnesses. The Judge made it clear, however, that when the hearing reconvened respondent would also have an opportunity to present additional evidence.

[3] For example, one of the principal sources of noise at the can seamer was a hydraulic pump located behind the seamer. The Secretary’s expert testified that a significant noise reduction could be achieved at that location by moving the pump. There was no evidence that moving the pump would have been difficult or infeasible.

[4] He also found that respondent ‘clearly established’ that administrative controls were not feasible at respondent’s worksite. Thus, complainant’s case is grounded solely on respondent’s alleged failure to provide feasible engineering controls.


[5] It should be noted, however, that the regulation at issue here applies only ‘[w]hen employees are subjected to sound[s] exceeding those listed in Table G 16.’ 29 C.F.R. § 1910.95(b)(1). Of course, as indicated by the stipulation, the personal protective equipment furnished by respondent provided adequate protection to preclude its employees from being ‘subjected to’ such noise levels.

[6] See: Secretary of Labor v. Turner Company, OSAHRC Docket No. 3635 (1975) (on review).

[7] See: Sec. 3 (8) of Act, 29 U.S.C. 652(8) re definition of term Occupational Safety and Health Standard.


[8] See: Secretary of Labor v. Reynolds Metals Co., OSAHRC Docket No. 1551, ALJ Dec. 9/18/73, on review, holding Complainant has the burden; Secretary of Labor v. Page Industries of Oklahoma, Inc., 4 OSAHRC 1059 (10/4/73) arguably holding Respondent has the burden.

[9] An additional noise source was identified by Mr. Hotsford as set forth in Exh. C–12, a high-pitched whistle caused by venting carbon dioxide over eight equally spaced holes into the room. This arrangement formed an array of eight Helmholtz resonators (similar to bottles that will produce a whistling sound when air is blown through the necks). He suggested the simple solution of covering the eight holes with wire mesh which would correct this condition (Exh. C–12).

[10] For example on Exh. C–11, the March 21, 1975 revision of Exh. R–4, at the upper left-hand corner, a noise level reduction of from 6 dBA to 4 dBA is recorded. Yet the total dBA reduction reported in the ‘Remarks’ column—for the bottle line reported on the first 3 pages of this exhibit total 2 1/2 dBA. Additionally, many of the suggested changes had not been instituted for various reasons. No such comparison is possible on Exh. R–4 with the data appearing thereon. Exh. C–9, purportedly an August 1974 version of Exh. R–4 is subject to the same deficiencies.

[11] My conclusion on the evidence of record should in no way be interpreted as a criticism of Mr. Spargo’s or Respondent’s good faith attempts to deal with their noise problem. There is nothing in this record which causes me to question Mr. Spargo’s sincerity or integrity in discharging his responsibilities in connection with Respondent’s Columbus noise study.


[12] A complete evaluation of the extent of Respondent’s engineering efforts is impossible on this record. Mr. Spargo, having corporate-wide responsibility for Respondent’s noise problems, did not know how much money had been spent by his company on these problems nor did he have any complete or precise figures as to how many engineering hours have been expended on these problems. Further he was not in charge of the noise problems at the worksite here involved.

[13] It is noted that Respondent did not produce, as a witness any qualified engineer, including a reported acoustical engineer, Mr. Snell, who was directly involved with this project.

[14] Economic considerations can be relevant in determining the ‘feasibility’ of engineering controls. See Secretary of Labor v. The B. F. Goodrich Co., 9 OSAHRC 44, 50–55, (A.L.J., June 5, 1974) and Industrial Union Department, AFL-CIO et al v. Secretary of Labor, 499 F.2d 467, 477–478 (CADC, 1974) cited therein. No such consideration has been raised by this record.