RMI COMPANY
OSHRC Docket No. 13773
Occupational Safety and Health Review Commission
June 28, 1979
[*1]
Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
William S. Kloepfer, Assoc. Regional Solicitor, U.S. Dep't of Labor
Robert H. Gillespy, for the employer
Bill Leslie, Rec. Sec., Local 7-629, for the employees
OPINION:
ORDER
BY THE COMMISSION:
This case is before the Commission on an order of remand issued by the United States Court of Appeals for the Sixth Circuit. RMI Co. v. Secretary of Labor, etc., 594 F.2d 566 (6th Cir. 1979).
In the Commission decision in this case, RMI Co., 78 OSAHRC 31/C8, 6 BNA OSHC 1523, 1978 CCH OSHD P22,674 (No. 13773, 1978), RMI Company ["RMI"] was found in violation of 29 C.F.R. § 1910.95(b)(1) n1 for failure to use enclosures for consoles in the chipping area of its metal reduction plant. The only issue raised on review and therefore considered by the Commission was whether the console enclosures were technologically feasible within the terms of the standard. The Commission found the enclosures technologically feasible. It also noted that the issue of whether the console enclosures were economically feasible was not before the Commission. n2
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n1 The standard provides:
§ 1910.95 Occupational Noise Exposure.
* * *
(b)(1) When employees are subjected to sound levels exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.
|
Table G-16 - Permissible Noise Exposures |
|
|
|
|
|
Duration per day, |
Sound level dBA |
|
hours |
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 |
n2 The administrative law judge's decision noted, "Economic impact might be a factor but not in the instant case; all engineering controls indicated by Complainant [the Secretary] are well within the fiscal capacity of Respondent [RMI]." On review to the Commission, RMI did not excent to that conclusion.
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The United States Court of Appeals for the Sixth Circuit upheld the Commission's determination that the enclosures were technologically feasible. [*3] However, the court further ruled that under the cited standard both technological and economic feasibility must be considered in determining whether an employer is in violation of the standard. It emphasized that in Continental Can Co., Inc., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, et al., 1976), the Commission ruled that the term "feasible" used in § 1910.95(b)(1) includes economic feasibility and that a cost-benefit test should be applied to determine whether an employer is in violation of the standard.
The court held that inasmuch as the Commission decision in this case was issued after Continental Can, n3 the Commission erred in not considering the issue of economic feasibility in its decision. It further ruled that inasmuch as the judge's decision and the submission of RMI's brief predated the decision in Continental Can, neither the Secretary nor RMI had notice of the change in law announced in Continental Can. Finally, the court ruled that it would be unfair to the parties for a determination on the issue of economic feasibility to be made on the basis of the present record. It concluded that the appropriate disposition [*4] was to remand the case to the Commission
for the taking of additional evidence on the issue of economic feasibility and for a determination of whether the costs of installing the engineering controls are outweighed by the benefits to the employees' health and safety reasonably expected to be achieved thereby.
594 F.2d at 574.
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n3 The judge's decision in this case was issued on June 10, 1976. RMI submitted its brief to the Commission on August 12, 1976. On August 24, 1976 the decision in Continental Can was issued. The Commission's decision in this case was issued on April 12, 1978.
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Because the order of the court requires the taking of further evidence, we find it appropriate to remand the case for further proceedings before an administrative law judge. However, the judge who originally heard the case is no longer with the Commission. The case is therefore remanded to the chief administrative law judge for assignment to an administrative law judge, who is ordered to take evidence and to make a determination [*5] on the issue of economic feasibility, as ordered by the court.
IT IS SO ORDERED.