OSHRC Docket No. 14124

Occupational Safety and Health Review Commission

January 12, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Regional Solictior

Thomas R. Merlino, Owens-Corning Fiberglass Corp., for the employer

Joseph N. Antle and Chairman Wilbur R. McKee, President, Health & Safety Committee, G.B.B.A, Local 244, for the employees



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 [*2] 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. 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.



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.



Thomas R. Merlino, For Petitioner

Dennis Dowdell, Jr. and Ronald J. Arrington, For Respondent

Joseph N. Antle, For Correspondent

LaVecchia, Judge, OSHRC:

Statement of the Case

This proceeding involves a petition for modification of abatement period, filed on or about June 30, 1975. An extension of abatement dates of June 30, 1975 and July 26, 1975 n1 to December 31, 1976 is requested. Statements of position were filed by the petitioner and respondent. [*3] The corespondent, given party status at the commencement of the hearing, had previously made its position known when it contested anything more than a 6-month extension in a letter dated July 14, 1975. Pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), the hearing was held on December 2, 1975 at Columbus, Ohio.

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n1 As a result of inspections conducted on April 13, 1973 and July 22, 1974 citations were issued against petitioner on June 5, 1973 and July 26, 1974 respectively charging violations, none of which were contested, of certain standards promulgated under the Act. We are concerned here with 29 CFR 1910.95(b)(1), under Citation No. 1 issued in June 1973 and 29 CFR 1910.95 under Citation No. 3 issued in July 1974. In Citation No. 1 the original abatement date fixed was June 6, 1974. This date was subsequently extended to December 6, 1974, and then to June 30, 1975. In Citation No. 3 the original abatement date was July 26, 1975; petitioner requests that both of these dates be extended to December 31, 1976.

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Briefs were filed by petitioner and respondent Secretary.

The Considered Violations

The citation issued on June 5, 1973 alleged violation of 29 CFR 1910.95(b)(1) for failure to maintain sound levels at or below limits set in Table GS-16 by feasible administrative or engineering means at these workplaces:

(1) Operator, aerocor furnace No. 16;

(2) Bonded mat operator working on platform;

(3) Machine tender, first level of wool furnace area.

The abatement date specified for correcting these violations was set at June 6, 1974, as previously indicated.

The citation issued on July 26, 1974 alleged violations of 29 CFR 1910.95 for failure to use feasible and administrative controls to reduce exposure to noise where exposure exceeds the limits set in Table GS-16 at these workplaces:

(a) C-4 forehearth operator;

(b) B-5 forehearth operator.

As previously shown, the abatement date specified for correction of these violation was July 26, 1975.

Since the petitioner admits that it has not been able to effect the required abatement, the limits set forth in Table GS-16 are not in issue.

The Issue

The question presented [*5] is whether petitioner has demonstrated a good faith effort to comply with the abatement requirements. The burden of proof is specifically assigned to the petitioner under Rule 34(d) of the Commission's Rules of Procedure.

Summary of the Relevant Evidence

Seven progress reports were submitted to the Occupational Safety and Health Administration (OSHA) during 1975; one during 1974; and one during 1973. These deal with the noise problem as well as others. They tend to show an ongoing effort by petitioner to come up with a solution to the noise problem. Optimism is reflected in the earlier reports, but the failures to effect abatement in the required degree are recorded with increasing frequency as experiments were found to be unsatisfactory.

About 2,500 employees are utilized in petitioner's Newark, Ohio plant, the workplace involved in the considered noise violations. Surveys for purposes of noise evaluation are conducted by petitioner on a semi-annual basis, and these have indicated that perhaps 100 to 125 employees are exposed to excessive noise levels at various points in the Newark plant, including those set forth in the citations out of which this proceeding arose. [*6] An audiometric evaluation program is administered by several registered nurses at the Newark plant, with about 1,300 employees tested in 1974, and about 1,200 in the first eleven months of 1975. Many of these individuals are not in noise-hazard areas during their employment. Two sets of data (baseline and later) are available on only about 90 employees. The latest results showed that about 75 percent of them had had no significant changes in their hearing. Twelve percent showed minor changes in one ear, and another twelve percent showed inconclusive results. One employee demonstrated minor changes in both ears. An undetermined number of these employees were given audiograms when their employment began, but the others had not been tested upon entry. Petitioner's assistant medical director expressed the opinion that the hearing of employees at the involved plant is reasonably well protected. (Tr. 54). He did feel, however, that the program could be further refined.

Petitioner's engineering efforts have been hampered by a number of problems. Each of the cited areas is near the fiberizers, one of the greatest noise producers. (Tr. 26, 27). Noise is an unavoidable consequence [*7] flowing from the proper operation of glass fiberizers. Accordingly, the company's efforts have been limited to application of an accessory to the process. Product quality is an important consideration. (Tr. 31). Mufflers have been utilized in petitioner's Fairburn, Georgia plant on a trial basis. Although considerable noise reduction was achieved, the resulting poorer product quality was not acceptable. The durability of the mufflers themselves was also considered poor. (Tr. 31). Late in 1974 the muffler development work was transferred to the C-4 machine in the Newark plant. Progress has been encouraging, but a problem still exists with respect to the access doors. (Tr. 34). Frequent access to the fiberizers is necessary for proper operation and maintenance. The planned activity in the engineering efforts extends to December 31, 1976. A good to fair technical chance of success is envisioned. Operator booths are located at the B-4, C-4 and Aerocor 16 workplaces, and sound levels inside the booths are less than 90 decibels. (Tr. 47). Employees at the Newark plant are provided with personal hearing protection devices whether or not they work in a noisy area. (Tr. 63). [*8] Noisy areas are designated by signs which also require use of hearing protection.

The compliance officer's tectimony was concerned primarily with describing the four compliance inspections she had made at the Newark plant. Three of these dealt with the noise problem. She did not feel that the requested extension should be granted because (1) a follow-up inspection about a year after the first citation revealed that some employees in the cited work areas were not wearing hearing protection, (2) previous extensions had been granted to petitioner, (3) in her opinion petitioner had not made a good faith effort to comply with the considered standard, and (4) the progress reports submitted by petitioner related only to plans, rather than to any actual work toward abating the noise hazard. (Tr. 69-105).


Upon the entire record herein the following facts are found:

1. Employees in the cited workplaces are overexposed to noise.

2. The number of employees overexposed to noise is between 100 and 125 out of a total average workforce of approximately 2,500 in the Newark plant.

3. Operator booths have been installed at the B-4, C-4 and Aerocor 16 workplaces, and [*9] the sound levels within the booths is less than 90 dBA. n2

4. The Newark plant has an ongoing audiometric program aimed at hearing conservation.

5. Employees are provided with personal hearing protection whether or not they work in a noisy area.

6. The noise generated by fiberizers is essential to their proper operation.

7. Based upon a review of the 90 employees for which comparative audiometric data is available, the results are reasonably consistent with those which might be found in individuals who are not overexposed to noise.

8. Some employees disobey company instructions by failing to wear the provided personal hearing protection in noisy areas.

9. Petitioner's efforts to design and install effective noise controls on its fiberizers have been thwarted by a combination of factors, e.g., unsatisfactory quality of the product, and add-ons to cost of manufacture prohibitive with respect to competitiveness with manufacturers of similar products.

10. Petitioner's abatement efforts in 1973 and early 1974 were not productive, but its efforts since that time have been indicative of a serious attempt to abate the hazard.

11. Considering the overall picture, petitioner [*10] has been engaged in a good-faith effort to comply with the considered standard.

12. Compliance with the noise standard has not been achieved because of the formidable engineering and technical difficulties encountered by petitioner.

13. The difficulties encountered by petitioner have been beyond reasonable control.

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n2 This is below the starting point in Table GS-16 - Permissible Noise Exposures (29 CFR 1910.95).

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Upon the entire record, it is concluded that:

1. The Commission has jurisdiction.

2. Petitioner is in violation of 29 CFR 1910.95.

3. Petitioner should be granted modifications of both of the considered abatement periods, from June 30, 1975 and July 26, 1975 respectively, to December 31, 1976, as requested in its petition.


In view of the foregoing, it is hereby ORDERED that the petitioner submit an updated progress report and plan of abatement to the Secretary on or before July 1, 1976, and that the abatement be completed on or before December 31, 1976. [*11]

Louis G. LaVecchia, Judge, OSHRC

Dated: April 28, 1976

Chicago, Illinois