WHEELING-PITTSBURGH STEEL CORP.

OSHRC Docket No. 13949

Occupational Safety and Health Review Commission

May 13, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Assoc. Regional Solicitor

George Raynovich, Jr, Wheeling-Pittsburgh Steel Corp., for the employer

Donald D. Driscoll, Jr. Co-Chairman, Local No. 1190, United Steelworkers of America, for the employees

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A January 26, 1976, decision of Review Commission Judge Ben D. Worcester, attached hereto as Appendix A, n1 is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated a citation which alleged that respondent had violated 29 U.S.C. 654(a)(2) by failing to comply with the occupational safety standard codified at 29 C.F.R. 1910.95(b). n2 The Judge's vacation of the citation was based on complainant's failure to establish the existence of feasible engineering and administrative controls for reducing employee exposure to noise. For reasons that follow, the Judge's decision is affirmed.

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n1 Chairman Barnako does not agree to this attachment.

n2 That standard provides in pertinent part as follows:

"When employees are subjected to sound levels exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized."

[*2]

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Review of the Judge's decision in this matter was requested by Local #1190, United Steelworkers of America, the authorized employee representative. The union contends that (1) respondent did not use feasible controls to reduce employee exposure to noise and (2) the Judge erred in placing the burden of proof on complainant to establish the feasibility of engineering and administrative controls.

It is a well-settled principle that the burden of proving all elements of an alleged violation rests with complainant. Brennan v. OSAHRC and Raymond Hendrix d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975); 29 C.F.R. 2200.73(a). The standard of proof to be applied in these proceedings is the preponderance of the evidence rule. Olin Construction Co. v. OSAHRC, 575 F.2d 464 (2d Cir. 1975); Secretary v. Armor Elevator Co., Inc., 5 OSAHRC 260 (1973). The burden of proving that engineering or administrative controls are feasible was therefore properly assigned to complainant. Also see Secretary v. Continental Can Co., Inc., OSAHRC Docket No. 3973, August 24, 1976.

The record before [*3] us is totally devoid of any probative evidence regarding the feasibility of administrative or engineering noise controls for respondent's worksite. Complainant's only witness on this subject was the industrial hygienist who conducted the inspection at respondent's mill. This witness had no particular expertise in the area of noise abatement and control, his only knowledge of the subject resulting from courses on sound testing techniques. His testimony was limited to general noise abatement techniques for four of the five areas cited. He "really didn't have any idea how to correct any problems" in the fifth area cited. The witness offered no testimony regarding the degree of noise reduction which could be achieved with his recommended engineering controls. Furthermore, there was no evidence introduced regarding the feasibility of administrative controls.

In Secretary v. Reynolds Metals Co., OSAHRC Docket No. 1551, February 25, 1976, we held that testimony regarding the existence of general sound reduction techniques, without a showing that particular controls were feasible to reduce noise at the worksite involved, was inadequate to prove the existence of feasible engineering [*4] controls. The record in this case requires a similar holding.

The objections of the authorized employee representative are without merit. Accordingly, the Judge's decision is affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I dissent.

It is undisputed in this case that respondent's employees were exposed to excessive levels of noise. The issue is whether complainant had shown the existence of technically feasible engineering controls.

Complainant's industrial hygienist who conducted the inspection specifically recommended the use of sound-proofed personnel enclosures to reduce noise in three of the locations cited. Although the majority observes correctly that the industrial hygienist had no special expertise in noise abatement techniques, his testimony is unrebutted.

Testimony by employees of respondent also supports the feasibility of the use of enclosures in the locations where the compliance officer recommended that they be used. The pump house operator testified that while inside a sound-proofed telephone booth located in the pump house, there was "a lot difference" in the noise level. He added that the machinery could still be heard well enough to perform the job. [*5] The piler recorder operator at the 3/8" shear line testified that the three-sided enclosure at his job station could be enclosed on the fourth side without interfering with the operation. Finally, the engineer in the number 5 boiler house stated that his job could be performed with a reduction in the general noise level, which would not affect the changes in pitch for which he listened. None of the testimony by respondent's employees is rebutted.

Respondent presented no evidence. Plainly the preponderating evidence supports the citation.

Unlike Reynolds Metals, relied upon by the majority, which involved the more complex application of a variety of sound-reduction techniques to over 120 pieces of equipment in a 500-by-260 feet production area, the instant case involves only the application of a single, simple device to three separate work stations. To find that the preponderant evidence of record does not show that sound-proofed booths would be feasible engineering controls at the three locations discussed above is to ignore all relevant evidence of record.

APPENDIX A

Dennis Dowdell, Jr., for the Secretary

George Raynovich, For the Respondent

BEN D. WORCESTER, Judge [*6]

DECISION AND ORDER

Ben D. Worcester, Judge, OSAHRC

This proceeding arises pursuant to a notice of contest filed by the respondent, Wheeling-Pittsburgh Steel Corporation, under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.), hereinafter called the Act. On June 10, 1975, a citation was issued alleging that the respondent had violated section 5(a)(2) of the Act. The citation consisted of three items. Items 2 and 3 were not contested and have, for that reason, become a final order not subject to review. Item no. 1 alleged that the respondent violated 29 CFR 1910.95 at its South Works, Mingo Junction, Ohio, on June 5, 1975.

The citation and complaint described the alleged violation as follows:

"Failure to use feasible engineering and administrative controls to reduce exposure to noise where exposure exceeds limits set in Table G-16 at these work places: (a) water works engineer; (b) welder on 1/4" line; (c) piler on 3/8" line; (d) engineer, #5 boilerhouse; (e) 2nd engineer, blower house."

29 CFR 1910.95(b)(1) provides:

"When employees are subjected to sound exceeding those listed [*7] 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."

The complainant, through the testimony of an industrial hygienist, proved that there was exposure of employees in a number of different areas of the plant to noise levels in excess of 90 decibels. Through this witness and several employees it was revealed that the respondent had furnished personal protective equipment. Another employee who is also chairman of the union safety committee testified that he had found no fault with the administrative controls put in effect by the respondent consisting of the issuance of different kinds of hearing protection. The complainant did not adduce any evidence through the testimony of a qualified expert which would show that feasible engineering controls would abate the hazard. Sales brochures which were proffered but excluded from the record would have proved only that the manufacturer was looking for a market for its product. Accordingly, the respondent's motion to dismiss [*8] at the conclusion of the case for the Secretary was granted.

Upon the review of the record as a whole, including the transcript of the testimony, I find that the complainant has not sustained the burden of proof that the respondent failed to use feasible engineering and administrative controls to reduce exposure to noise as alleged in the complaint and that there was no violation of 29 CFR 1910.95.

ORDER

It is therefore hereby ordered that item 1 of the citation dated June 10, 1975, and the proposed penalty of $100 be vacated.

Dated Jan. 26, 1976

Hyattsville, Maryland

BEN D. WORCESTER, Judge, OSAHRC