JOHN HASSALL, INC.  

OSHRC Docket No. 13648

Occupational Safety and Health Review Commission

January 4, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Frederick D. Braid, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review.   The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review.   Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest.   Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision.   [*2]   Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.  

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A.   For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor and James A. Magenheimer, for Complainant

Frederick D. Braid, for Respondent

STATEMENT OF PROCEEDINGS:

By letter dated June 9, 1975, John Hassall, Inc., of Westbury, New York, (respondent) contested Item 1 of a five-item citation issued on May 20, 1975, by the Occupational Safety and Health Administration of the U.S.   Department of Labor (complainant). n1 The respondent is a manufacturer of special metal fasteners and the item of the citation contested alleges that its various automatic cold header machines in the primary and secondary departments [*3]   generate sound levels in the 95 to 102 decibel (db) range at the operators' stations and employees are exposed to these levels for approximately seven hours a day.   Three employees used to hearing protection and others using cotton or Swedish wool had limited protection.   Further, the citation alleges that feasible engineering controls have not been implemented to a significant degree all in violation of 29 CFR §   1910.95(b)(1). n2 A plan of abatement was required to be submitted by December 31, 1976 and a penalty in the amount of $35 was proposed for this alleged violation. n3

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n1 The citation was issued under §   658(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651, et seq. The contest was filed within the 15 working-day period prescribed in §   659(a) and is directed only to Item 1.   The remaining four became final orders by operation of law under the last cited section.

n2 These factors are alleged to violate the standard which pertinently reads:

(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 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

 

n3 At the hearing, complainant withdrew the penalty (Transcript, Tr. 7).

  [*4]  

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The essence of respondent's notice of contest is that there are no feasible engineering controls available and it has done everything it can to comply.

Thereafter complaint and answer were filed in which respondent admits the jurisdictional facts alleged in the complaint and denies that it violated the standard.

The matter came on for hearing at New York City on September 30, 1975.   Both parties were represented by counsel.   Briefs were filed by December 17, 1975, with respondent's reply brief received on December 22, 1975.   No affected employee or any other person came forward to claim party status as provided at 29 U.S.C. §   659(c).   (Tr. 5-6, 103)

THE PARTIES' STIPULATION

The parties agreed that on May 14, 1975, the day of the inspection by complainant, the automatic cold header machines in the primary and secondary departments generated sound levels in the 95 to 102 decibel range at the operators' stations and the employees were exposed to these levels for approximately seven hours a day (Tr. 8).

Respondent is the owner of this equipment (Tr. 6) and it had in 1974 $7.5 million in gross   [*5]   revenues (Tr. 7).   It has not been previously cited and its average daily number of employees is 170 (Tr. 8).

THE ISSUES:

Factually, the questions to be resolved are:

1) Whether feasible engineering or administrative controls exist to reduce the exposure of employees to a permissible level; and

2) Whether the personal protective equipment (ear plugs, muffs, or Swedish wool) used by employees was sufficient when used.

Legally, there is the issue of whether the use of personal protective equipment may be deemed as compliance with the standard if there is no engineering or administrative controls being implemented.   (See Tr. 9-12)

THE EVIDENCE:

Abraham Hyman, an industrial hygienist has been working for complainant since September 1971 (Tr. 15-16), and he conducted the inspection of respondent's plant on May 14, 1975 (Tr. 21-22).

Mr. Hyman holds a bachelor's and master's degree in electrical engineering (Tr. 20).   He has been with the Department of Labor for nine years as an industrial hygienist (Tr. 16) and, prior to that for five and a half years, worked at the Brookhaven National Laboratory, a facility of the Atomic Engery Commission, doing noise appraisal work [*6]   (Tr. 16 and 19).   He also holds a position as an adjunct professor in the Health Science Department in the New York State university system (Tr. 19).   He has taken two special 40-hour courses in noise and noise control and is a subscriber to technical journals which publish articles in this area (Tr. 19-20).   Since 1971, he has made some 600 inspections for complainant of which about 100 involved noise problems (Tr. 16-17).   Often these result from a referral by a compliance officer, as did this inspection (Tr. 22), and he will measure sound levels to determine employee exposure at specific points.   He works with employers on programs of noise abatement some taking three years to complete.   (Tr. 17-19)

He estimated that respondent's plant area covers about 100,000 square feet with 300 machines. He measured the noise level on six machines. (Tr. 28) The pointers, of which there are 15 to 20 (Tr. 60), and headers machines both are metal-to-metal pounding operations; the pointers flatten the end and the headers form the head of the nail or screw (Tr. 52).   All machines produced similar sound levels; none were in compliance (Tr. 81-82).   The noise level around the machines was normally [*7]   100 decibels (Tr. 73).

Mr. Hyman was accompanied on his inspection, which ran from 12 noon to 5:30 p.m., by Mr. Carl Horlitz [respondent's plant manager (Tr. 170)] and an employee representative (Tr. 22-23).   He saw signs in the plant advising employees to wear hearing protection (Tr. 28) and noticed employees using ear muffs, Swedish wool and ear plugs (Tr. 23).   But three employees were without anything in the vicinity of the equipment and "they were, let's say, going from one machine to another" (Tr. 23).   The absence of protection on these employees was the principal reason for the issuance of the citation (Tr. 27).   He didn't know what these employees were doing or how long they were exposed unprotected to the excessive noise level; he had no data on them (Tr. 91).   "They were at the machines. They were working around the machines in those departments" (Tr. 92).   He pointed this out to Mr. Horlitz who agreed that they should have been using hearing protection and Mr. Horlitz took their names and it's on this basis that Mr. Hyman assumed that these employees' normal position was at these machines (Tr. 93).

Otherwise, Mr. Hyman saw a "fair number" (Tr. 25) of employees wearing [*8]   ear muffs which are satisfactory (Tr. 24) attenuating sound by 25 to 30 decibels (Tr. 26-27).   But Swedish wool and ear plugs are not adequate at a 102 decibel level but the latter could be if moulded to fit the ear (Tr. 25).   Even then neither product will attenuate noise more than eight decibels (Tr. 26).

Mr. Hyman proposed a method which would bring the plant into compliance with the standard.   A metal ring would be placed above a machine from which a plastic material would be suspended enclosing the machine (Tr. 47-48).   The plastic would be between the machine and where he thought the operator is positioned and it would also protect others passing by (Tr. 46).   There are plastics available which are heavy enough to attenuate noise by 15 to 17 decibels (Tr. 44) and even more than 20 decibels (Tr. 74).   He testified that this approach is "fantastic" (Tr. 57) and its application would (1) significantly reduce the noise; (2) the machine would be easily accessible; and (3) the plastic is see-through and the operator could watch the function (Tr. 48 and 57).   This method is the specific solution for this problem (Tr. 96-97).   The installation would be no problem at respondent's plant [*9]   (Tr. 69).

Mr. Hyman estimated the cost of this installation to be between $650 - $750 per machine (Tr. 61 and 96) of which 50 percent would be used for material.   The plastic is made of polyvinyl chloride and is durable (Tr. 68).   A full enclosure (ring to floor) would not be necessary; three-quarter draping would suffice and more than one pointer machine could be enclosed within a single ring in some areas where they are almost touching (Tr. 70-71).

Mr. Hyman had tested this idea on a header (not at respondent's plant) which produced 97 decibels, a machine similar to respondent's (Tr. 43-44).   Using plastic .003 of an inch thick, he obtained a reduction of six decibels (Tr. 44).   His test was conducted for one-half to three-quarters of an hour (Tr. 68).   He forecasts the results to occur at respondent's plant based on engineering information but he has never seen it done and has never seen the "shower curtain" apparatus installed (Tr. 65-67).   He never performed any test with rated plastics which he would use at this plant (Tr. 79).

The installation of this curtain arrangement would conclusively solve the noise problems and other engineering controls would be an adjunct to it   [*10]   (Tr. 75-76).   These other types of controls would include the replacement of worn bearings (Tr. 31); reduction of metal-to-metal pounding by the use of electromechanical means and sensors (Tr. 31-32); cardboard or some insulation placed between the gear and pawl (Tr. 33); pad the machines (Tr. 33); plexiglass put between air jet (which is used to reject imperfect products) and the operator (Tr. 34, 53, and 59); slow down the operation of a machine (Tr. 34-35) but if this were possible, production would suffer (Tr. 67) halving the machine's speed would cut the noise by more than half (Tr. 35); use a soft material between machine's mounts and concrete floor (Tr. 36-37, 40); stiffen the sheet metal that vibrates and undercoat the machines (Tr. 36-37, 40 and 81); and drop the ceiling and install acoustical tile and a soft flooring material (Tr. 41-42).

Mr. Hyman did see some plastic barriers but didn't know the result (Tr. 58) and one fairly new header with noise reduction features was in operation within the standard's requirements (Tr. 94).   The noise reducing mechanisms could be adapted to older machines but this would cost more than the $750 he estimated (Tr. 95).

The citation's   [*11]   abatement date (December 31, 1976) is the time within which some progress in reducing the noise level must be shown (Tr. 83 and 87).

According to Mr. Hyman, administrative controls whereby the employee's exposure is reduced and limited by reassignment to other duties are not feasible in respondent's circumstances.   These are possible only where there are a fair number of employees who are not subjected to the excessive noise levels. (Tr. 28-30 and 62)

At the conclusion of this witness' testimony, the complainant rested (Tr. 103) and respondent's motion to dismiss was denied (Tr. 99-100).

Alexander J. Smith has been in respondent's employ for six years and is responsible for its compliance with the OSHA regulations (Tr. 104-105).   It manufactures cold-headed metal fasteners not all of which are standardized but, rather, made to customers' specifications from a few hundred rivets for jet engines to many thousands for auto brakes and some of these products are not produced by any other concern (Tr. 108-109).

In 1976, respondent will celebrate its 125th Anniversary (Tr. 105) and a few of its machines are nearly that old.   The age of its 62 or 63 nailer machines range from 12 to 90 [*12]   or 100 years old (Tr. 109 and 112) and these are not all alike with the older ones of respondent's own design; its 90 to 92 rivet machines range from one to 60 years old (Tr. 107-112); of its eight pointer machines, six are 12 to 15 years old (Tr. 108-109, 112); and its 28 to 35 headers, reheaders and double-end headers range up to 40 years old (Tr. 110-112).   There is a great diversity of the types of equipment in the plant (Tr. 108).   The mounts on virtually all of these machines are padded with material three-quarters of an inch thick installed even before he came to the plant (Tr. 117-118).

In the mid-60's, respondent employed a speech and hearing concern to test employees before they entered onto the job and then during their tenure (Tr. 106).   When the Occupational Safety and Health Act became effective in 1971, this testing was brought in-house and an audiometric technician was trained to perform the tests on applicants and annually on employees (Tr. 106-107).   Its testing program was examined by a physician and an audiologist at a speech and hearing laboratory and was rated as complete and good (Tr. 138).

The audiologist advises a new employee of the necessity to use hearing [*13]   protective devices.   The plant manager does the same on his orientation and he is reminded daily of this requirement by his foreman.   Respondent supplies the protective devices, the muffs, Swedish wool and plugs and the employee choses that which is most confortable for him.   This choice is allowed to assure the use.   Respondent prefers the muffs which have the greatest attenuation capability (Tr. 139-140).   However, the manufacturer and supplier of Swedish wool (Quiet-Down glass fiber) and plugs provided test results to show these products will attenuate noise 25 to 30 decibels (Tr. 141, 142, 148-150 and exhibits R-3, 4, and 5).   These tests, according to the exhibits, were done in a manner acceptable to the complainant, namely ANSI (American National Standards Institute) Z24.22-1957.

Engineering innovations began in early 1973.   Certain areas on a group of machines were enclosed based on studies by trade associations, i.e., the Industrial Fastener Industry and the American Screw Bureau (Tr. 114).   Meetings were also held with equipment manufacturers (Tr. 114-115) and the operating parts and kick-out areas were enclosed with sound absorbent material on six machines as a test.   A [*14]   two to three decibel reduction was achieved bringing the sound level down to 96 or 97 decibels (Tr. 115).   Many, but not all, of the machines have barriers at the point of operation (Tr. 165).

These studies continue on a collective basis through the two trade associations mentioned above and the American Nail and Tack Manufacturers Association as well as in the individual plants (Tr. 118).   No plant has yet been successful in achieving an engineering control of the noise problems (Tr. 119).

Exhibit R-1, Fastener Industry Noise Control Research Program, is an outline of the industry-wide noise control research study with 150-160 companies involved which share the study's overall cost of $300,000 (Tr. 120-121).   This study involves manufacturers and users of the machinery together with consulting experts in an effort to achieve as much noise attenuation as possible in a given plant. The testing on machines similar to respondent's (Tr. 127) is to be completed by March 1976 followed by a few months' evaluation and then implementation in plants on certain equipment.   The study's recommendations are to be tested beginning in the summer of 1976 and will continue for a period of three [*15]   years (Tr. 122 and 124).   The funding of the program began in September 1974 (Tr. 126) and respondent's contribution is less than $1,000 annually (Tr. 155-156).   Respondent receives information as a member of the program so that all feasible recommendations can be utilized (Tr. 122).

Mr. Smith knows of one way to achieve compliance which is neither feasible nor practical and that is a full box type or integrally incorporated enclosure around a new machine (Tr. 127).   Around older machines, a sound absorbing box would have to be installed (Tr. 128).   The newer machines are designed differently from older ones and the box can be adapted to it (Tr. 128).

He approached three original equipment manufacturers (OEM) for the price of enclosures on the newer machines and was advised that the cost for a nailer machine would range from $6,000 to $7,000; $12,000 to $13,000 for a rivet machine; and $10,000 for headers (Tr. 128-130 and exhibits R-2, 2a, and 2b).

None of these OEM's would make an enclosure for an older machine (Trl 131-133).   These would have to be specially built at a cost of $6,000 for a nailer to $12,000 for a header and those costs do not include amounts for design and installation.   [*16]   All of these would differ because of the various sized machinery (Tr. 133-134).   Total cost is estimated at over $3 million (Tr. 134) and a new plant would have to be constructed to accommodate all of the newly enclosed machines (Tr. 135).

Respondent has not considered slowing its machinery to abate the excess noise for this would affect production and its competitive position in the market (Tr. 116-117).   At this time, it is not sure of the effects of enclosing its machines (Tr. 136).   An operator attends to five or six machines, which operate automatically unless there is a breakage (Tr. 161), visually inspecting and making adjustments (Tr. 136).   More importantly he hears the machine operating correctly; the metal-to-metal contacts must sound right and he can hear it through his ear protection.   If there's a breakage, the machine produces scrap.   He wouldn't be able to hear the subtle sound of an improperly working machine if it were enclosed and he would have to tend fewer machines depending on a constant visual inspection (Tr. 136-137).

On cross-examination, Mr. Smith testified that a new nailer machine would cost about $25,000 and a new rivet machine between $50,000 and $100,000 [*17]   (Tr. 157).   The rivet machine that was found in compliance is of English manufacture (Tr. 157) costing between $60,000 and $70,000 (Tr. 158) which is less than the cost of a domestic one but it can perform unique functions not found on American machines and respondent has two of these which is all it needs (Tr. 166-168).

Over the period that employees were tested for hearing loss, two were shown to have so suffered but one had had scarlet fever and the other a noisy hobby.   They were moved to jobs in the tool room (Tr. 161-162).

Directives to wear ear protection are posted and line supervisors enforce these.   Employees without protection are warned and a record is put in his folder.   Three warnings and he is suspended although this has never happened (Tr. 162-164).   No employee has refused to use the ear protection but many are forgetful (Tr. 164).

George P. Burn, Jr., has been associated with the fastener industry for 30 years and is the secretary of nine trade associations of which eight are involved in the noise research program. Respondent is a member of two of these associations.   About 150 companies are involved in the Fastener Industry Noise Research Program and 80 of these [*18]   are in the trade association (Tr. 198 and 200).   Another trade association, the Industrial Fasteners Institute with 60 companies, is also a sponsor of the program (Tr. 199).   No individual company within his trade association has successfully controlled the excess noise and little was done until the advent of OSHA because the problem is not considered as acute (Tr. 200).   Only respondent made attempts to engineer out the noise before the research program was commenced and this makes it unique (Tr. 201).   Now the research is intense (Tr. 200).

The research program took a year to organize being completed on May 20, 1975.   It is a four year program of research (Tr. 212).   Sixteen different machines at various plants are being studied.   The first step is the study and measurement of the noise these produce; the second step is the design study and implementation of new design; and lastly is the production of a manual telling how the noise can be controlled (Tr. 213).   Regular reports on progress are sent to members and OSHA (Tr. 213).

According to Mr. Burn, the noise problem in the industry is considered marginal but the cost of engineering controls is enormous.   The Department of Commerce [*19]   reports that there are 659 companies manufacturing fasteners representing annual capital investments of between $50 and $60 million.   About 30,000 machines (headers, threaders, slotters, etc.) are in use.   The cost of controlling the noise runs from $8,500 to $25,000 per machine or about $300 million.   If plant expansion is taken into consideration to accommodate the space needed for the enclosed machines, the cost is increased to somewhere between $600 and $750 million or over 10 times the annual capital investment (Tr. 201-203).

In considering these costs, intense foreign competition (Janpan which has minimal noise regulations) must be recognized and extinction of this domestic industry is not impossible.   The machines cannot be slowed (Tr. 204).   But, while to company has yet achieved compliance, some progress has been made with covers.   This does not assure a 90 decibel noise level if all machines are covered.   It is hoped that the research program will result in control methods (Tr. 205).   Almost all of the companies do use ear protective devices (Tr. 206).

On cross-examination, Mr. Burn stated that the OSHA noise requirements are a "disaster" for the industry.   He knows of [*20]   no plant using the shower curtain. Baffles, covers, enclosures for machines or employees have been installed (Tr. 208) and these cut back efficiency to a considerable extent (Tr. 209) without achieving compliance (Tr. 211).

Carl Horlitz is respondent's plant manager (Tr. 170) and has been with it for 25 years (Tr. 180).   About 75 employees in the plant are required to wear ear protection, either muffs, plugs or Swedish wool (Tr. 170-171).   If an employee is found without protection, he is spoken to and the offense is noted (Tr. 171).   Over the past number of years, full compliance has been achieved and only seldomly will an employee be found without protection (Tr. 172).   Usually this will occur when a man has been in an area where protection is not necessary, the john, the office, the shipping area, and he forgets to replace it on his return to his job (Tr. 173).

The three men seen by Mr. Hyman without protection were just returning from their afternoon coffee break outside of the building (Tr. 174-175).   Mr. Horlitz took action on this occasion and in the five and a half hours of inspection only these three were seen without ear protection (Tr. 176 and 245).

An employee works [*21]   about seven hours a day, exclusive of breaks, and of this about half of the time, three and a half hours, is at a machine while its operating (Tr. 239-240).

If the so-called "shower curtain" were installed as recommended by Mr. Hyman, the plant couldn't operate as it now does (Tr. 176).   Presently, an operator tends to about five machines (Tr. 185) going to each one about every 10 minutes (Tr. 184) and he can hear an improperly operating machine (Tr. 187).   With the curtain installed, he couldn't and he would have to go in and out of the enclosure constantly (Tr. 183-184).   This would be a "pain", the operator would become lax and quality would suffer (Tr. 186).   The curtain's opening would have to be of a good size for some machines' chutes where the final product comes down is in their centers and the man would have to be completely inside (Tr. 179-180 and 242-243).   There would have to be holes for the incoming wire suspended from a reel on the ceiling (Tr. 178 and 182) and the curtain would interfere with this (Tr. 183).   Tracks are hung on the ceiling to which electric hoists are attached.   These hoists, with chain and hook pick up a reel of wire and that wire is fed into the [*22]   machine from a distance of eight to 10 feet (Tr. 182-183).

In Mr. Horlitz' opinion, the curtain would require more than inches for installation (Tr. 176-177).   They would limit already crowded space as would machine enclosures (Tr. 183) interfering with lift trucks delivering and removing wire and products (Tr. 183).   They would limit space needed by maintenance men (Tr. 184) who could be at machines three times a day (Tr. 185 and 192).   They would get dirty from the oily atmosphere and would probably tear from constant going in and out (Tr. 181) and would have to be cleaned every two weeks (Tr. 191 and 193).

On cross-examination, Mr. Horlitz testified that the curtains probably could be designed to fit but not uniformly (Tr. 190).   He envisioned a mess: men would be constantly going in and out as would the wires and products.   The curtains would quickly become worn and torn (Tr. 191).

It is not the easiest thing to get to a machine now (Tr. 191-192) but the plant's operation is very efficient and not much rearrangement could be done (Tr. 188-190).   The plant's layout hasn't essentially changed in the past 25 years; there is no extra room (Tr. 194).

Ronald Brown is the engineering [*23]   manager for Hartford Special Machinery which makes headers, thread rollers and point formers.   He has been in that position for three years and with the company for 10 years (Tr. 215).   He holds a Bachelor's degree in mechanical engineering from Rennsalaer, was with Boeing for four years, in the machine tool business for a year and a half and for the same period was a designer and test engineer with Pratt and Whitney Machine Tool (Tr. 216).   His company's headers are used by respondent and he has been at its plant (Tr. 215).

Hartford had been involved with noise control since 1971 and Mr. Brown is charged with overall responsibility for results.   It has run tests and keeps abreast of all programs spending $200,000 in the four years, most of that for personnel (Tr. 216-217).

While Mr. Brown agrees with Mr. Hyman's figures on the curtain arrangement's control of noise, it must be complete from floor to ceiling and a 90 decible level could be achieved (Tr. 234).   This is so even with some holes to let wire into the machine and to take the product out (Tr. 235).   But he has never seen this done (Tr. 235).   The curtain must be virtually airtight and any hole would cause a loss of effectiveness [*24]   (Tr. 222 and 226-227).   It would not reduce noise exposure below 90 decibels to 85 (Tr. 222).

The key point is that the magical number is not 90 decibels; 85 or 84 is (Tr. 217-218).   Because of the cumulative effect of a number of machines operating, the noise level is higher than that produced by a single machine. Thus, if 48 machines operated at 90 decibels, the operators would be exposed to 95-97 decibels (Tr. 218).   It's a logarithmic function: two machines producing 90 decibels each would result in three decibel rise; three machines would raise it five decibels. So, if OSHA would require a lowest exposure of 85 decibels, Hartford's target would be 80.   The shower curtain couldn't achieve it (Tr. 218).   And it is very difficult to achieve 85 decibels on these machines (Tr. 219-220).

The curtain approach has other defects.   The smoke from the machines must be exhausted (Tr. 221).   It is very vulnerable to employee abuse (Tr. 225).   It would get very dirty and lose its transparency.   A test showed that plexiglass used around a machine became chocolate brown within weeks.   Respondent couldn't clean them and could't afford to clean them (Tr. 226).

According to Mr. Brown, partial [*25]   curtains have been tried unsuccessfully but not complete enclosure by curtain because it's too impractical (Tr. 222).   His company couldn't reach the 85 decibel level with a lead impregnated cloth enclosure (Tr. 222-223).

His company's tests showed that a box type enclosure on a header which emits noise in the high 90's decibel range would reduce that noise level by 20 decibels if the machine were in a reasonably quite room (Tr. 223).   With padding, a 15 decibel reduction was achieved (Tr. 224).   But if an 85 decibel machine was operating where the noise level was 90 decibels, the machine would make no difference in the level (Tr. 228).   The box type would last 10 years at the most and padded guards for one and a half to four years (Tr. 224-225, 227-228).

No company has completely enclosed its machines (Tr. 228) and his company will not become involved with guarding older machines. There may be none available (Tr. 230).

The guards are available only for newer machines (Tr. 230) and these will accomplish an 80 decibel level with the box type and 85 with padding if the noise ambience is right.   These devices are available to respondent (Tr. 231).   The cost for header machines (Tr.   [*26]   235) is $50,000 for a 1/8 inch header plus $11,000 for box or padding; $70,000 for a 3/16 inch machine plus $15,000 for guarding; and $89,000 for a 5/16 inch machine plus $15,000 for guarding (Tr. 237).

Mr. Brown believes that the box approach is "absolutely not" the best way of achieving compliance (Tr. 237).   The boxes or pads are not feasible from a business point of view; there is more work to be done (Tr. 238).

CONTENTIONS OF THE PARTIES:

In his brief, complainant argues three points. n4 First, that the mandate of the standard requires the implementation of feasible engineering controls to reduce the exposure of employees to excessive levels.   Furthermore, the standard is flexible and respondent may choose those controls best suited to it.

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n4 He also raises a fourth point, to-wit, that the Commission may not decide whether a regulation is vague.   While this point was mentioned by respondent in its opening statement (Tr. 9), it appears to have been dropped.   Respondent's brief goes to complainant's failure to carry his burden of proof under the standard.

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Second, respondent has failed.   Based on the testimony of its industrial hygienist, the curtain of rated material by itself around the machines would reduce the exposure of employees outside of the curtain to a noise level in the 90-92 decibel range.

However, even lower ranges can be expected, argues complainant, based on inferences drawn from Mr. Brown's (Hartford Special Machinery) testimony.   Since three machines operation simultaneously will raise the noise level five decibels, each would have produced 95 decibels if the sound level around those machines measured 100 decibels. Hence assuming the curtain would reduce the sound level at least 10 decibels, then the noise level outside of it would be 85 decibels. Inside the curtain, the noise level would be 95 decibels and, under the standard, the operator could be exposed for a maximum of four hours.   The plant manager testified that the operator is at a given machine for three and a half hours.   Compliance is achieved.   In addition, partial barriers in certain areas of the machine would result in a three to four decibel drop; the ceiling could be lowered and acoustically tiled [*28]   and the machines could be slowed down.

Despite this, says complainant, all respondent does is contribute less than $1,000 a year toward the unmonitored research program in the hopes of finding a solution some time in the indefinite future.

The violation sits in respondent's failure to implement all feasible engineering controls available to it useful in reducing excessive levels even if these do not reduce the level to within the limits of Table G-16 (see footnote 2, above).

Finally, complainant contends that respondent does not effectively enforce its program requiring the use of personal protective equipment.   It issues only "lax" warnings, takes no forceful disciplinary actions and, since three men were caught without any protection, this proves that the non-use is not an isolated instance.   In any event, Swedish wool or non-molded ear plugs are insufficient in this plant for these will not attenuate noise more than eight decibels.

Respondent argues that the complainant failed to prove (1) the existence of feasible engineering controls or (2) that the three unprotected employees were exposed to excessive noise levels beyond the limits of the standard.   It claims that the shower [*29]   curtain approach is unproven and that there is no tried and proven solution as yet.   Even if this curtain with other control devices resulted in a 90 decibel level, compliance still would not be achieved because of the logarithmic function of a higher noise level produced when more than one machine is producing at 90 decibels.

Additionally, the curtain would have to have a roof and this would make impossible the continued operation; it would be difficult to adjust and maintain the machines; and the curtains create a hazard since the employees would be unable to see or communicate with each other.   The curtains would have to have openings and this lessens their effectiveness and employees would have to be within them servicing the machines for periods beyond the standards limits.   They won't stay clean and it would be impossible to maintain them.

Affirmatively, respondent argues that noise control devices are used.   Pads are installed between machine and floor; barriers were tried at certain areas of the machines, but compliance was not achieved and no company in this industry has been successful.   Thus, the industry-wide research program was born.

The only way to comply is to box [*30]   in the machines at a cost of over $3 million.   And with this, production would surely decrease.

As to the three men seen without protection, respondent alludes to the absence of any proof that they were exposed beyond the limitation of the standard.   Even if they were, it must be deemed as an isolated incident in view of the enforced hearing protection program.   And the industrial hygienist's opinion that Swedish wool and ear plugs are inadequate must fall before the force of the results of approved tests showing these to be as sufficient as muffs. Swedish wool was found to be acceptable by the Commission, respondent points out, in Secretary v. Southern Indiana Gas and Electric Co., BNA, 1 OSHC 1569 (1974).

FINDINGS OF FACT AND CONCLUSIONS:

My findings are based on the requirements of the standard cited against respondent as these have been defined and explained by the complainant in its Guidelines to the Department of Labor's Occupational Noise Standards, Bulletin 334 (Revised 1971) attached hereto as Appendix A.

As noted in footnote 2, above, the standard requires that ". . . feasible . . . engineering controls shall be utilized" when employees are subjected [*31]   to sound in excess of the limits specified in Table G-16.

Feasible is defined in the Guidelines (page 7) as follows:

The Department of Labor considers "feasible" to mean the following, as stated in the Oxford English and Merriam-Webster Dictionaries: "Capable of being done, accomplished or carried out; capable of being dealt with successfully."

This definition is expanded at page 9 following examples of different types of engineering controls:

The Department of Labor expects employers to explore the possibility and practicability of controlling noise by engineering and to take all feasible measures before resorting to use of administrative controls or of personal protective equipment.

Thus, the factual findings necessary to resolve this controversy must include the answer to the question of whether the excessive noise levels can be successfully and practically controlled by engineering devices.

This record and the demeanor of the witnesses testifying create a preponderance of evidence which supports the following findings of fact:

1) Enclosing respondent's machines within a rated plastic material (the shower curtain) will neither successfully limit an employees' exposure [*32]   to excessive noise levels nor is it economically or technically practicable.   Subsidiary facts justifying this are:

a) While the rated material will prevent as much as 20 decibels from escaping the enclosure, it does nothing to attenuate the level within it or directly at the machine.

b) The curtain would interfere with the plant's operation and would cramp even tighter an already crowded condition requiring plant expansion.

c) An operator could no longer depend on hearing the improper working of a machine but would have to visually inspect each operation taking more time and necessarily increasing his time at the machines, which is three and a half hours a day at present.

d) I accept respondent's (Mr. Smith) evidence that a machine produces 95 to 97 decibels after sound reducing devices are installed around the operating parts and kick-out areas which evidence is based on a test conducted on six machines. This fact is also in accord with complainant's (Mr. Hyman) evidence that the normal sound level is 100 decibels together with the logarithmic function which describes how the noise level will rise when a number of machines are producing similar but lower levels.

e) An operator [*33]   will be exposed to this level (between 95 and 97 decibels) within the curtain for more than three and a half hours a day because of the change in his work routine caused by the curtain and would be exposed to noise levels for periods in excess of the allowable limits of Table G-16 (95 decibels for four hours; 97 for three).

f) These curtains would get dirty and lose their transparency within a short time (less than two weeks) because of the machine's oily atmosphere requiring the operator to be within the enclosure for even a cursory check.   And the configuration of some machines requires the operator to be within the enclosure to remove the product.   These factors -- dirt and wear and tear -- and the repeated cleaning the curtains require, would reduce their effectiveness as a noise stopper.   But the cost of maintaining them would be exorbitant.   The expense of their installation would amount to about $200,000 based on Mr. Hyman's estimate of $750 for each of the 300 machines in the existing plant without considering any expansion.

g) The only method of successfully controlling the excessive noise levels at this plant is the box enclosure or padding installed around each machine [*34]   requiring plant expansion and costing in excess of $3 million.

h) The fastener industry of which respondent is an active member is actively and intensely engaged in a research program to find a solution to the excessive noise conditions in these plants -- and no plant of the 659 in existence has achieved a successful engineering control -- and this program is to be completed by 1979.

Based on these findings, I cannot conclude that respondent has failed to utilize feasible engineering controls to reduce the noise levels within its plant. The shower curtain arrangement would require the operator to be at the machines more often and for longer periods of time -- more than the present exposure of three and a half hours a day.   Even at a 95 decibel exposure, under the standard he would be allowed a maximum exposure of four hours.   A three hour maximum is allowable at 97 decibels -- a level attained by some of the machines. Thus, even if the curtains could be practically installed, and maintained, the operators would still be required to use hearing protective devices because of their exposure directly at the machines. Thus, for all intents and purposes, the curtains would not accomplish [*35]   the end for which they were designed n5 and yet this failure would be accomplished at a tremendous expense.   See Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, and AFL-CIO v. Brennan, No. 75-1105 (3d Cir. Dec. 31, 1975) [BNA, 3 OSHC 1820, 1828-1829].

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n5 Because of this conclusion, it is not necessary to decide whether the standard requires engineering controls to reduce levels to within Table G-16 or merely to reduce them at all.   See Reynolds Metal Company, OSHRC Docket 1551 (February 25, 1976).

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Concerning the issue of whether Swedish wool or ear plugs are sufficient protection, I find, based on exhibits R-3, R-4 and R-5, that they are according to the tests by the manufacturer showing an attenuation level markedly similar to that of ear muffs.

I conclude that respondent has not violated the standard in that it requires employers to provide suitable protective devices.   While complainant's industrial hygienist does not believe that Swedish wool or ear plugs are sufficient, respondent [*36]   le entitled to rely on its manufacturer's stated level of attenuation.   That level is more than enough even in the ranges of 102 decibels and the tests used to determine that level (ANSI Z24.22-1957) are acceptable to the complainant according to its Guidelines, page 11:

Only those ear protectors which have been tested in accordance with ANSI standard Z24.22-1957, "Method of Measurement of the Real-Ear Attenuation of ear Protectors at Threshold," are acceptable to the Department.

When the respondent showed that the protections it provides are within the complainant's requirements, no rebuttal was offered.   I find the respondent's exhibits to be probative and I discount the evidence that Swedish wool or plugs will attenuate noise no more than eight decibels. See also Southern Indiana Gas & Electric Co., BNA, 1 OSHC 1569, cited by respondent, which holds:

. . . the respondent correctly asserts that "Swedish Wool" is an acceptable protective device.   The Secretary of Labor's Bulletin 334 . . . recognizes this.

Finally, I find and conclude that respondent effectively requires the use of these protective devices because:

1) In an inspection lasting over five hours, only three [*37]   of 75 employees who should wear ear protection were seen without it and there is no evidence that these men were unprotected for a longer period than allowed by Table G-16.

2) These men were returning from an area where the protection was unnecessary (outside the building on their coffee break) and based on respondent's program of enforcement -- warnings by

a) the audiometric technician that protection is required before a man comes on the job;

b) the plant manager on his orientation; and

c) by his supervisor on a daily basis -- I find that these men would replace the protection in the normal course of their duties.

3) Respondent has been aware of the need for this protection since before OSHA (1971) and has achieved full compliance with the mandate requiring these devices.   I find that rarely will they not be used and respondent's vigilance against this forgetfulness is constant.

ORDER:

My ultimate conclusion in this proceeding is that the complainant has failed to sustain his burden of proof.   There are no feasible and practicable engineering controls available to respondent.   By complainant's own witness' testimony, administrative controls could not be implemented.   [*38]   Therefore, a rare situation has been reached but not unforseeable by complainant.   He states at page 10 of his Guidelines:

The use of personal protective equipment is considered by the Department to be an interim measure while engineering and administrative controls are being perfected.   There will be very few cases in which the use of this equipment will be acceptable as a permanent solution to noise problems. (emphasis nime)

To make this "permanence" short lived is the aim of the industry's research program. However, at present, no violation has occurred and it is ordered that the citation issued May 20, 1975, alleging a violation of 29 C.F.R. §   1910.95(b)(1) be vacated in its entirety together with the $35 penalty assessed therefor.

DAVID J. KNIGHT, Judge, OSAHRC

Dated: April 1, 1976, Boston, Massachusetts