UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77-0926
BORG-WARNER CORPORATION, MORSE CHAIN DIVISION,
Respondent.

July 26, 1979

ORDER

The Secretary’s motion dated July 16, 1979, to withdraw his Petition for Discretionary Review is Granted. The Judge’s Decision is affirmed and is accorded the precedential value of an unreviewed Judge’s Decision, pursuant to the Commission’s Decision in Potlatch Corp., —— OSAHRC ——, 7 BNA OSHC 1370, 1979 CCH OSHD para. 23,549 (No. 77–3589, 1979) and cases cited therein.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: JUL 26, 1979

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77-926
BORG-WARNER CORPORATION, MORSE CHAIN DIVISION,
Respondent.

March 7, 1979

DECISION & ORDER

APPEARANCES:

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor, New York, New York, By: Anthony Ginetto, Esq., For Complainant

Dorothy J. Howell, Atty., Legal Department, Borg-Warner Corporation, Chicago, Illinois, For Respondent

Statement of Proceedings:

By letter dated March 25, 1977, Borg-Warner Corporation, Morse Chain Division of Ithaca, New York (respondent) contested1 a citation by the Occupational Safety and Health Administration of the U.S. Department of Labor (complainant or OSHA) issued[1] March 8, 1977, alleging a failure to reduce sound levels by engineering or administrative controls at two areas of its plant in Ithaca in violation of 29 CFR § 1910.95(b)(1).[2] The alleged violation is characterized as nonserious and was to be abated with a three-step plan over the course of approximately one year.

Complaint and answer were filed[3] and respondent admits the jurisdictional facts alleged in the complaint that it is an employer having employees and it affects interstate commerce. I conclude that the authority of the Commission to resolve this controversy is proper.[4] The matter finally came on for hearing[5] with both sides represented by counsel. No affected employee or his representative elected party status after due notice (Transcript, Tr., 4–5 and 168).

The only issue to be decided is the feasibility of engineering controls (Tr. 3). Personal protective equipment (ear muffs) are worn by employees (Tr. 23) and this is an effective control of the excessive noise (Tr. 62). Complainant has not advocated the use of administrative controls or offered any proof as to this means.

The Evidence, Findings and Conclusions:

Department 507: Charles W. Timber has been the manager of respondent’s automotive division (Department 507) for 11 years and he described its role as the dominant supplier of timing and transmission chains to the automotive industry (Tr. 235). Department 507 contains 12 45-ton, high speed Minster presses which operate at 600 to 900 strokes per minute. Fifty thousand pounds of timing chain links are produced per day during two shifts consuming 100,000 pounds of steel (Tr. 240–241). Exhibit R–6A is a layout diagram of these presses and shows the six of them at the west side of the department. Another six are placed on the east side in the same configuration as those on the exhibit. (Tr. 243 and 275)

There is no dispute that the noise level in this department exceeds the permissible levels in Table G–16 of the standard to which the six operators for the 12 presses are exposed. Matthew Finucane, complainant’s compliance officer, measured the noise range and found it to be between 78 and 107 dBA (Tr. 19 and 20–22). He recommended the issuance of a nonserious6 citation because of the use by employees of personal protective equipment against the effects of the noise (Tr. 23–24). Complainant’s expert, Norman L. Meyerson (Tr. 42–43 and his qualifications, Exhibit C–3) measured the sound levels at locations frequented by the operators (Tr. 52) and found the range to be between 103.5 and 111.[6] dBA (Tr. 53). The noise is highest at the press’s stamping point and radiates from the entire machine to create a uniform background value. These presses are well maintained and ‘beautiful running’ with nothing inherently wrong with them. (Tr. 73) Mr. Timber testified that the noise level was 110 dBA (Tr. 237 as corrected at 258 and 261).

The solution, according to Mr. Meyerson, is to construct an enclosure around each of the two lines of six presses. At the west end line, this would consist of two walls of sound absorbent material (Tr. 74–78). The east end line would require a third wall to perfect the enclosure (Tr. 80). This method is engineeringly feasible and would cost between nine and $11,000 per enclosure (Tr. 85–86). These costs could be met by respondent, the parties stipulated (Tr. 159). The noise could be attenuated to 89 dBA outside of the enclosures depending on the openings in the walls (Tr. 81–84).

The only obstruction to the operator which Mr. Meyerson saw is opening either of the two doors in the enclosure servicing each press. The operator could watch the operation through windows in the doors and the stock would be fed through a slot in the enclosure’s wall. (Tr. 75, 76–78 and Figure 32 attached to the witness’ statement showing his sketch of the enclosure) Going into the enclosure to check on the die and the press’s performance or to move the product from the press to the conveyor belt along the wall would add two or three minutes to his work. The press is mostly automatic but the operator has to watch it to assure its normal functioning and its lubrication level. (Tr. 77) The only production loss which Mr. Meyerson saw could occur would be because the operator has to open the door and the enclosure would have to be removed for maintenance of the press (Tr. 123–125). But in this department, the control of the noise by the enclosures is feasible both engineeringly and economically (Tr. 115).

On cross-examination, Mr. Meyerson testified that if he were retained by respondent to devise an abatement plan, he would require a month or two of study in the plant; then two weeks to prepare his report; and then within eight months the equipment required could be ordered and installed (Tr. 141–143). But on the inspection here, Mr. Meyerson was at the plant for only two hours (Tr. 143); he observed how the presses operated but did not discuss with any of respondent’s employees how the machines were operated or serviced (Tr. 143–144); and he has only an idea of how complete the automation is (Tr. 144). He is not an expert in punch press operation (Tr. 145). At 111.5 dBA, the permitted exposure (by Table G–16) is 15 minutes and, therefore, if the operator enters the proposed enclosure five or six times a shift, a violation of the standard would occur (Tr. 152). With technology to be developed on the presses in terms of automation, the operator would spend less time inside of the enclosure (Tr. 152–153).

But Mr. Timber enumerated the eight tasks each operator typically must perform and the time required to do these. These require two hours and forty-five minutes. (Tr. 241) Since each operator runs two presses (Tr. 249), he will spend 5.5 hours of his eight hour shift inside the enclosure (Tr. 276–277). Since 1968, respondent has been attempting to devise controls to eliminate the operators’ exposure. In that year, a remote monitoring system, which would isolate the operator, failed but it remains under study and development. If successful it would be respondent’s trade secret. (Tr. 236–237 and Mr. Curran Tr. 228–229) In 1970, inertia blocks were installed to absorb press vibration at a cost of $58,000. No airborne reduction of the noise was realized. (Tr. 237)

In 1971, a full enclosure was built around one press for $5,000 (Tr. 237). A 20 percent reduction in production efficiency resulted for routine operations such as changing dies or loading stock. (Tr. 238) This booth was in use for about one month then (Tr. 263) and it had a door, windows and slots to feed the stock through (Tr. 258–259). But malfunctioning of the press is frequent and unpredictable at 600 to 900 strokes per minute (Tr. 238). The presses do not automatically shut down on a jam (Tr. 259). Quick response by the operator is essential to avoid damage to dies which can cost up to $10,000 apiece and represents an investment of $1 million plantwide (Tr. 238 and 260). The enclosure also creates safety problems in that its walls become contaminated with oil and the press’s motor overheats (Tr. 233–239).

This enclosure is comparable to Mr. Meyerson’s recommendation for abatement (Tr. 239) but with it: (1) the operators remain overexposed to excessive noise inside; (2) his estimates are but 15 percent of present cost estimates; (3) operators cannot perform if they are isolated from the press by any barrier; and (4) the enclosure would have to be disassembled to perform maintenance requiring a forklift truck which occurs about once a month (Tr. 238, 242 and 275). All the tasks done by an operator when the enclosure was tested are done today (Tr. 273–274). One enclosure for six presses would not relieve these problems (Tr. 267).

Thereafter in efforts to control the excessive noise, respondent in 1972 erected a sound booth for the operator from the materials used on the dismantled press enclosure for $1,000. But this limited the operator’s access to the press and prevented his seeing malfunctions. (Tr. 239) In fact, the operators complained because they could not monitor the presses (Tr. 265).

Mr. Timber outlined these efforts to control the noise since 1973 and these included dynamically balancing the presses costing hundreds of thousands of dollars (Tr. 239–240); the installation of air mounts in 1975 for more than $27,000; and the use of plastic barriers in 1976, but the noise remains high (Tr. 240).

Complainant, in his brief, argues that respondent has shown that the proposed enclosures would merely inconvenience the operators but this does not prove impossibility which is a valid defense. In essence, respondent argues that nothing would be gained by adopting complainant’s proposal. The operator would be exposed much the same as he is now and the enclosure would be impracticable because of production losses and the potential of major damage to expensive dies.

I find that the two enclosures recommended by the complainant to surround the six presses each on the east and west sides of Department 507 are neither technologically nor economically feasible when placed in contraposition to (1) the minimal benefits achieved and (2) all of the costs associated with these enclosures. Within the enclosure, there is no reduction from the present noise levels and the operator would be within it for at least 70 percent of his shift time. Further, the six operators of the 12 presses would be continually entering the enclosures ruining their required integrity so that even when one would be outside he would be exposed to the high noise levels emanating from an open door to an operating press.[7]

The undisputed fact is that—at this stage of the industry’s knowledge—there does not exist any technological method of quieting these well-running presses and that enclosure or isolation of the operator are the only means of protecting him but for the ear muffs which are required to be worn. But I find that complainant’s proposal regarding engineering controls would not accomplish this.

Based on this finding, any expenditure of funds must be economically not feasible. And the relevant expense do not include merely the cost of construction of the enclosure. Because of the interference the enclosure creates, the speed of the machine at 600 to 900 strokes per minute, and the necessity for constant observance, the risk of damage to a $10,000 die is high. This, I find, then becomes a relevant cost and even complainant’s cost estimate of $11,000 is almost doubled if even one die is damaged. These costs measured against the practically nonexistent benefits result in a waste of money.[8]

I conclude that since complainant has failed to prove that the noisecontrols proposed for Department 507 are in anywise feasible, respondent is not in violation of 29 CFR § 1910.95(b)(1) as cited. This is not to say that respondent may reduce its efforts to separate the excessive noise from its operators, for as the technology develops, respondent may well find itself in violation.[9] This part of Item 2 of the citation is vacated in the order below and complainant’s motion for partial summary judgment (Tr. 10–13) is denied.

Department 110: Richard C. Curran is respondent’s executive vice president and director of manufacturing (Tr. 223). In Department 110 industrial chains are produced, both roller and inverted tooth chains. There are 24 punch press operators (Tr. 225) working with 65 presses which are not all the same with assignments varying from one man per press to three presses to one operator on two shifts (Tr. 231–232). The presses operate at 400 to 500 strokes per minute and an operator must shut one down if it jams (Tr. 231). Complainant’s compliance officer measured the noise level in this department to be between a low of 70 dBA to high of 105–107 dBA (Tr. 19–20). There are numerous presses here and six are the subject of the citation. He found six operators to be over-exposed to noise, but he estimates because of the location of the workers that 18 employees are subject to excessive levels. (Tr. 37–38)

During Mr. Meyerson’s two-hour inspection (not entirely spent in this department) (Tr. 143), only one press was being operated. There were 12 across the aisle and a cluster of five large machines. There were numerous presses and this room opened onto other press rooms. (Tr. 65) His measurements at the operating press at its reel, alongside and rear showed a range of 101.5 to 104.5 dBA affecting the operator and other operators at the next machine (Tr. 66–67). And a man between two operating presses is exposed to a further increase of three dBA’s, to 106 (Tr. 68).

Mr. Meyerson’s recommendation here is to replace the existing guarding structures on these presses with acoustical shields. This would place a barrier between the operator and the die or press area of the machine. Complainant’s photos, Exhibits 6A to 6E, show the grating guards on the machines which protect the operator’s hands and which would be replaced. (Tr. 87–90) Much of the noise emanates from this die area and there should be at least one barrier on its working side. The operators’ sides on adjacent machines face each other and the barriers would affect a reduction of six dBA’s there. (Tr. 91–92 and 99) A man directly behind a barrier within a foot of it realizes about an eight dBA reduction from the die area, but as he backs away the reduction is less because the noise comes from the press’s frame on all sides (Tr. 92). A reduction of three dBA occurs further away from the die area between presses (Tr. 98–99). The barriers would affect no reduction at a press’s reel area (Tr. 99) and any benefit is conditional on the size on an opening and its location (Tr. 92). At a later point, Mr. Meyerson testified that only a minimal portion of a press’s total noise output comes from the die area or actual shearing point (Tr. 108).

The present guards should be replaced to enclose a larger area and each press should be so enclosed without a top to prevent direct radiation to the ears (Tr. 93–95). This could achieve a reduction of six to nine dBA’s and create no interference with an operator’s duties since the machines are mostly automatic with dies changed about twice a day. Windows in the barrier would allow observation. (Tr. 96–97) A reduction of the noise level by three decibels means a man may work one-and-a-half to two hours more under Table G–16. But the barriers will not reduce the level to below that table’s permissible level. (Tr. 100–101) It offers some benefit to the operator when he is close to the noise source (Tr. 101).

The cost of these barriers depends on the press and could range from $3 to $4 a square foot for acoustical curtains (Tr. 108–109) to $7 to $8 per square foot for barriers on larger machines (Tr. 109–113). Mr. Meyerson estimates the cost of these barriers on press 10621 which he saw in operation to be $3,600 (Tr. 109). And if a top were put on, the cost would be increased by one-fifth (Tr. 110). He does not recommend total enclosures for this department, which do exist, because these would be very costly, would cause too great a loss in production time, and would create ventilation problems (Tr. 107–108). But these would be the only method of reducing the noise level to below that in Table G–16 (Tr. 114 and 118).

On cross-examination, Mr. Meyerson stated that a two to three decibel reduction with the panel or barrier would occur only at the operator’s position and beyond that place it would do nothing (Tr. 134). The panel is only a control at the die area and does not affect the noise radiating from the entire machine (Tr. 135). Nothing would be accomplished for the rest of the shop (Tr. 137).

Douglas Kent is a laborer, chairman of the union, and works as a grinder in Department 109 which is on the floor above Department 110 and he can hear the latter’s noise at his station. When he passes through Department 110, he can feel the vibration of a machine’s noise. (Tr. 169, 171 and 172–173)

Dr. Richard D. Strunk is respondent’s manager, acoustics and noise control section at the Ray C. Ingersoll Research Center and Exhibit R–3 is a resume of his qualifications (Tr. 203A–204). His expertise in this field was unquestioned. When all presses are running, he measured a noise level of 111 dBA (Tr. 192). His counter to Mr. Meyerson’s proposal for Department 110 is based on: (1) an operator is exposed to excessive noise from only his press and others do not significantly affect this; and (2) adding sound reducing materials will not reduce the noise because the sound energy radiates from all the vibrating surfaces of the press and a panel reduces the noise between two and three decibels only from the die area to about 108 dBA but the reduction must be by 21 decibels to meet Table G–16. The only method which would accomplish that reduction is a total enclosure of a press which is not recommended. (Tr. 178–179 and 186) If an operator’s press is shut down, noise from others still exceed the limits of the table (Tr. 213).

Dr. Strunk does not consider a reduction of three dBA to be significant because it represents only a factor of two, but to bring down the level by 21 dBA is a factor of 126 (Tr. 214). But he did admit that the three dBA reduction is significant in the sense that it reduces air pressure by one-half (Tr. 188 and 217–218). His tests show that reductions range from .5 dBA to a maximum of three dBA depending on the operator’s position when a panel covers the die area. He measured the noise levels at five operator’s positions around two presses. Without protective panels the range was from 102.5 to 108 dBA depending on the position; and with the panels in place covering the die area, the levels dropped to a range of 100 to 106.5 dBA with no reduction greater than 3.5 decibels (Tr. 188–190).

Mr. Curran testified that acoustical panels in this department would cost $1,600 per press or well over $100,000 for a reduction of three dBA (Tr. 227–228). In his opinion, there are no technically or economically feasible means of control (Tr. 228). Because of severe competition in this field, costs cannot be recouped through price increase and the last of these occurred in September 1974 and April 1978. Rather productivity must be increased. (Tr. 225)

Complainant argues that since (1) the undisputed reduction of three decibels is significant as found by the Commission,[10] (2) this reduction is technologically feasible by replacing machine guards with acoustical materials, and (3) that since 24 employees, the punch press operators will benefit with no press costing more than $4,000 to equip, the cost outlay is justified and, therefore, the method is economically feasible. It was stipulated that respondent could meet these expenses.

Respondent contends that there exists no feasible means to bring the noise level in this department to 90 dBA where a man may work for eight hours without hearing protection. Further, the attenuations as measured by Dr. Strunk showing a maximum reduction of 3.5 dBA with the panel installed permits no essential increase in allowable exposure time under Table G–16. The present 102.5 to 108 dBA exposure would lessen to 102 to 106.5 dBA (Strunk, Tr. 188) but the table allows no increased time under the latter as permitted by the former amount. Still further, when considering the carry-over noise from other machines, even the three dBA reduction is wiped out. Hence, the expenditure of well over $100,000 buys no significant protection.[11] Thus, complainant’s proposal for this department is neither technically nor economically feasible.

The question presented is whether replacing machine guards with acoustical materials to effect a reduction of a maximum of 3.5 decibels at certain positions around a press is significant enough to warrant an expenditure of almost $1,600 per press or over $100,000 for all of the presses in Department 110. There is no dispute that such an installation will benefit an operator only when he is at certain points within 7.5 feet of a machine and beyond that no benefit is achieved by the panels; and, at all events, the noise levels remain in excess of that dictated by Table G–16 affecting the 24 operators there.

I find that this reduction is not sufficiently significant even though an attenuation of three decibels halves the air pressure because (1) it occurs only at certain places at the press but the operator is not always there and when elsewhere he is exposed to the higher levels; that is, the time spent at these places may even amount to an exposure allowed by Table G–16 if the operator were not required to be at the constantly higher noise level positions; (2) all employees in this department are required to wear personal protective equipment and complainant offered no evidence that respondent’s hearing conservation program is less than effective;[12] and (3) the excessive noise level radiates from the entire press as testified to by Dr. Strunk and as Mr. Meyerson admitted that the die area contributes only minimally.

Thus, I find that while installation of these panels is technologically feasible, the benefits that would be achieved are not sufficiently significant to warrant the expense and are, therefore, not economically feasible. Thus, this case differs substantially from Secretary v. Louisiana-Pacific Corporation, 77/187/A2, BNA 5 OSHD 1995, CCH ¶22261, where the Commission found that the recommendation to reduce noise levels from the 122 dBA level to 90 dBA was neither novel nor complex at a cost of no more than $5,000. But when complexities enter, these may not constitute a preponderance of the evidence to merit affirmation of a citation. See Secretary v. Continental Can Co., Inc., 76/109/A2, BNA 4 OSHD 1541, CCH ¶21009. There the Commission ruled:

Even if we only consider whether it is feasible to enclose only the cited machines at the three California plants, we reach the same conclusion. The cost to develop and install enclosures for these machines is $494,000. The exposure of approximately 125 employees would be reduced to within G–16 limits, and some lesser reduction would be experienced by an unspecified number of other employees. These figures, standing alone, are not sufficient to establish by a preponderance of the evidence that engineering controls are economically feasible.

I conclude that complainant has failed to prove that controls for the noise levels in Department 110 are economically feasible and the order below vacates this part of Item 2 of the citation. Order:

Based on the foregoing and after considering the parties’ briefs and post-hearing proposals which, to the extent shown, are adopted otherwise they are rejected as not supported by fact or precedent, it is ordered:

1. That Item 2, parts (a) and (b) of the citation issued March 3, 1977, alleging a nonserious violation of 29 CFR § 1910.95(b)(1) is vacated; and

2. Complainant’s motion for partial summary judgment dealing with part (a) of Item 2 is denied.

DAVID J. KNIGHT

Judge, OSHRC

Dated: March 7, 1979

Boston, Massachusetts

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[1] Under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651, et seq., citations are issued following an inspection [§ 658(a)] and may be contested within 15 working days [§ 659(a)].

[2] This standard requires:

1910.95 Occupational Noise Exposure

(a) . . .

(b)

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

TABLE G–16—PERMISSIBLE NOISE EXPOSURE

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

[3] The Complaint was filed on April 20, 1977, and the answer on September 6, 1977. The interim was filled with motions to dismiss the complaint, etc., followed by motions to dismiss the notice of contest.

[4] See 29 CFR §§ 652(3), (5) and 653(a).

[5] At a prehearing conference on March 9, 1978, which both parties’ experts attended, a tentative settlement of the dispute was reached. Complainant did not accept this upon presentation by his counsel. Thereafter motions for summary judgment were filed. Hearing was held on June 16, 1978 (complainant’s case), and July 11, 1978 (respondent’s case). Briefs were filed by September 15, 1978.

[6] Nonserious means an absence of a substantial probability of death or serious physical harm resulting from the condition cited. 29 U.S.C. §§ 666(j) and (c).

[7] Cf., Secretary v. RMI Company, 78/31/C8, BNA 6 OSHD 1523, CCH ¶22674, where it was found that enclosures would protect employees for three hours of a shift and the citation was affirmed. No measure of protection is found in the instant case.

[8] A cost-benefit ratio must be considered. See, Turner Co., Division of Olin Corp. v. Secretary of Labor, 561 F.2d 82 (1977) at 85.

[9] Even if the abatement methods developed are respondent’s trade secrets, it may not be protected from further citations as the technology advances. Cf., Secretary v. Owens-Illinois, Inc., OSHRC Docket No. 77–648 (Dec. 20, 1978).

[10] See Secretary v. Continental Can Co., Inc., 76/109/A2, BNA 4 OSHD 1541, CCH ¶21009, footnotes 8 and 13.

[11] Respondent relies on Turner, above at note 8, to show the decisiveness of the cost of benefit ratio.

[12] In Continental Can, above at note 10, there is an indication that personal protective equipment is not always effective. See 76/109/at B2, BNA 4 OSHD at 1545, CCH (1976–1977) 21009 at page 25, 255. No such indication appears in this case.