WHEELING-PITTSBURGH STEEL CORP.

OSHRC Docket No. 14702

Occupational Safety and Health Review Commission

August 8, 1979

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall Harris, Reg. Sol., USDOL

Patrick W. Ritchey, for the employer

Matthias Huonker, Chairman, Local No. 1185, USWA, for employees

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner:

This case involves a citation alleging that the Respondent, Wheeling-Pittsburgh Steel Corporation ["Wheeling"] failed to comply with the occupational noise standard published at 29 C.F.R. 1910.95. n1 Administrative Law Judge David H. Harris affirmed the citation finding that Wheeling's employees were exposed to excessive noise levels and that Wheeling failed to implement feasible engineering controls. Judge Harris's decision is before the Commission as a result of a general direction for review issued under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. On review, Wheeling has filed a number of objections to the judge's decision.

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n1 1910.95 Occupational noise exposure.

(a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G-16 when measured on the A scale of a standard sound level meter at slow response. When noise levels are determined by octave band analysis, the equivalent A-weighted sound level may be determined as follows:

(Figure G-9 is not reproduced)

(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.

(2) If the variations in noise level involve maxima at intervals of 1 second or less, it is to be considered continuous.

(3) In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered.

Table G-16 -- Permissible

Noise Exposures

Sound level

dBA slow

Duration per day, hours

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

[*2]

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I

Wheeling galvanizes steel pipe at a facility in West Virginia. The galvanizing department is housed in a large building and consists of two separate but identical galvanizing units. n2 Each unit is a multistaged operation in which a zinc coating is applied to steel pipe in an assembly line fashion. An employee, designated as the pot charger, rolls lengths of steel pipe into a galvanizing pot that contains molten zinc with a layer of "sallie" on top. The zinc is heated to 800 degrees. Another employee, the dipper, uses hooks to remove the pipe from the pot. The dipper then places the pipe onto a magnetic roll that passes the pipe through doughnut-shaped wiper rings. Air passing out of small holes in the wiper rings blows any excess material from the exterior pipe surface. The pipe then proceeds by conveyor to a crossover table. Rolling on its circumference the pipe passes along the crossover table to the blowout operator. n3 That employee positions the pipe so that one end of the pipe is inserted into the blowout bell. The blowout operator then depresses a foot pedal activating a pressurized [*3] steam discharge from the blowout bell. n4 The steam is forced through the pipe, blowing excess material from the interior out the end of the pipe opposite the blowout bell. Depending upon pipe length, that end is either directly or nearly beneath a dust box that traps the emissions and passes them into the ventilation system. Following "blowout," the pipe continues along a conveyor and drops off the table into a quench tank. The galvanizing process is continuous with pipes following in close succession.

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n2 The evidence of record only pertains to the operation of one of the units.

n3 The blowout station is approximately 25 feet from the dipper station.

n4 The duration of the steam discharge is regulated by an automatic setting.

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Wheeling galvanizes pipe sizes varying in length from 18 to 22 feet and varying in diameter from 1/2 to 4 inches. n5 The duration of the steam blast is determined by the diameter of the pipe. The larger diameters require longer steam blasts. Furthermore, the quantity of pipe processed [*4] fluctuates according to pipe diameter. During a single workshift, Wheeling can process between 6,500 and 7,100 3/4-inch pipes, between 3,200 and 3,300 2-inch pipes or approximately 1,100 4-inch pipes.

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n5 Generally, Wheeling processes pipe in continuous series of one size at a time.

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Wheeling's employees work an 8 hour shift. n6 On each shift two blowout operators and two dippers work in tandem. Each blowout operator works at his station, alternating 1/2 hour on, and 1/2 hour off, for a total of 4 hours. When not working at the blowout station, the operator relieves the rackman for one 15 minute period and the pot charger for two 15 minute periods. Each blowout operator spends a total of 4 hours, 45 minutes in the galvanizing area. Dippers spend 4 hours at the dipper station, also alternating 1/2 hour on and 1/2 hour off, and two hours engaged in general supervision throughout the area. The remainder of the shift is break time for both dippers and blowout operators.

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n6 The actual galvanizing process does not encompass all 8 hours. The first fifteen minutes are consumed amassing the pipes at the charger area. Twenty minutes during the shift are used to clean the exhaust box. The final thirty minutes are devoted to work reports and cleaning. Thus, absent malfunctions, galvanizing proceeds for about 7 hours of each shift.

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II

The citation alleges that dippers and blowout operators were exposed to noise levels in excess of that permitted by 1910.95. The OSHA inspection was conducted by Stanley Elliott, a compliance officer with a specialty in industrial hygiene. During the course of his inspection, Elliott observed that the noise level in the galvanizing department was significantly increased by the intermittent blowout blasts. Elliott compiled noise data using a General Radio Sound Level Meter ("meter") and an audio dosimeter ("dosimeter"). Elliott recorded readings taken during the day shift at the blowout station and at the dipper station. n7

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n7 At the blowout station, Elliott obtained the following readings:

Noise level during

Noise level between

Time (approx.)

blowout

blowout

9:15

108 dBA

88 dBA

10:12

108

88

11:20

108

88

11:55

109

88

1:10

108

88

1:55

108

88

2:30

109

89

The following readings were obtained at the dipper station:

Noise level during

Noise level between

Time

blowout

blowout

9:15-9:20

103 dBA

91 dBA

10:12

103

91

11:25

103

91

11:55

103

92

1:10

103

91

1:55

103

92

2:30

103

91

Elliott took 3 or 4 readings at each of the indicated times, in each case recording the lowest figure. The same technique was used when measuring noise levels at the dipper station.

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While taking the meter readings, Elliott also measured the duration of the blowout by looking at his wristwatch and counting, one thousand, two thousand, etc. He determined that each blast lasted from 2 to 3 seconds. Elliott was informed 6,633 3/4-inch pipes went through the galvanizing process during the [*7] shift that was the subject of his inspection. By multiplying the number of pipes times the 2 seconds per blast, n8 Elliott determined that there was an exposure to 108 dBA for 221 minutes at the blowout station. Inasmuch as the blowout shift was divided between two employees, he concluded that each blowout operator was exposed to 108 dBA for approximately 111 minutes, exceeding the permissible duration of exposure for that noise level by 48 minutes.

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n8 In his testimony, Elliott indicated that he gave Wheeling the benefit of the doubt and used the lower 2 second figure when making his calculations.

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Elliott also attached dosimeters to the shirt collars of both a blowout operator and a dipper. These two employees wore the devices for 5 hours, 40 minutes, and 5 hours, 10 minutes, respectively. Elliott indicated that when the dosimeters were removed, they revealed that the blowout operator was exposed to 361% of the permissible limit for an 8 hour day and that the dipper's exposure was 490% of the permissible limit. [*8]

The record reveals that there were other noise sources in the galvanizing department. However, based upon the collected data and his own auditory observations, Elliott concluded that the steam blast was the sole reason that the noise exceeded the permissible limits. Furthermore, Elliott stated that he would not have cited Wheeling for the noise level existing when a blowout was not occurring.

James Botsford was qualified as an expert in industrial noise control and testified on behalf of the Secretary. Botsford indicated that he spent between 1 and 2 hours in the galvanizing area. On that day Wheeling was galvanizing 1-1/4-inch pipe. According to Botsford it was readily apparent that the loudest noises in the plant emanated from the blowout operation. Like Elliott he used a sound level meter to determine noise levels and an octave band analyzer to measure frequency. The meter indicated that an employee at the dipper station was exposed to a noise level of 106 dBA during blowout and 91 dBA between blasts. At the blowout station the levels were 106 dBA and 86 dBA, respectively.

Based on his expertise, Botsford concluded that the noise in the plant could be controlled by modifying [*9] the dust box portion of the ventilation system. Botsford proposed that a canopy be added to the dust box hood, extending it so as to enclose at least one foot of the discharge end of even the shorter pipes. n9 The hood and the canopy would be equipped with automatic moveable doors or flaps, allowing for pipe entry and passage. The hood, canopy and flaps would create a partial enclosure that would "contain the steam blast beneath the canopy and within the enclosure." Botsford proposed that all internal surfaces of the enclosure be lined with tectum, a sound absorbing material. n10 Botsford also suggested installing a baffle and a target plate inside the existing dust box hood. A baffle placed near the top of the hood would prevent high sound levels from entering the exhaust duct and being transmitted out into the room through its walls. An inclined steel target plate inserted at the rear of the hood would deflect particulate emissions away from the tectum lining. n11

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n9 The ends of the shorter pipes do not reach the dust box. With the longer pipes, only a small portion of the pipe would be under the dust box.

n10 Botsford testified that he selected tectum because it is inexpensive, fireproof, easy to install, and durable.

n11 The target plate would reduce the buildup of solidified zinc on the tectum. This particulate buildup would eventually reduce the sound absorption capacity of the tectum. The original dust box was equipped with a target plate.

[*10]

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On direct examination, Botsford indicated that, if properly constructed and maintained, the enclosure would eliminate the excessive noise exposures at the blowout station and drastically reduce the exposure at the dipper station. n12 More specifically, he stated that the noise levels during blowout would be reduced at both the dipper and blowout stations to a range of 90 and 95 dBA. Relying upon the CO's figures for number of pipes and the duration of blasts, n13 he projected that dippers and blowout operators would be exposed to the reduced blowout noise levels for approximately 2 hours per day. This exposure, he observed, would be within the maximum 100 dBA noise level for two hours. n14 However, on cross examination, Botsford qualified this assessment, stating, "I obviously can't make any meaningful comment about some conditions that I haven't investigated." Thus, he confined his testimony with respect to exact noise reductions to the pipe size being processed on the day of his investigation -- 1-1/4 inches in diameter and 20 feet long. However, he did state that his proposal would bring the respondent [*11] into compliance for 3/4-inch pipe. He also predicted reductions for larger pipe as well. This prediction was based upon a projected 10 to 15 dBA reduction after installation of the canopy. He added that for larger pipes the increase in blowout blast noise would be offset by the lesser number of blasts. Foreseeing the possibility that blowing out larger pipes might result in a substantial increase in noise, Botsford stated that additional measures could be taken to enhance the noise reduction capabilities of the canopy. He suggested that doors could be installed in front to further restrict the area where direct noise could escape in addition to installing moving doors on the sides of the hood. n15

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n12 Botsford indicated that the dipper was exposed to a secondary noise source emanating from the wiper rings. He concluded that a small shield could be installed to deflect this noise, resulting in the elimination of excessive noise exposure at the dipper station.

n13 Botsford did not make any measurements of the length of the blast.

n14 Note 2, supra.

n15 Botsford also testified that all the dust box modifications need not be implemented initially. He observed that only a 9 dBA reduction was necessary to sufficiently reduce the noise levels observed by the compliance officer. Therefore, he suggested that as a first step the Respondent install only the canopy and the lining, later adding the doors and the baffle if necessary.

[*12]

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In Botsford's opinion the canopy could be installed by Wheeling's maintenance crew. Unfamiliar with specific labor costs, he was unable to accurately project this component of the cost. Nevertheless, he believed that his proposal was the least expensive method for solving the excessive noise problem in Wheeling-Pittsburgh's plant and that it could be accomplished for $2,000. n16

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n16 Botsford pointed out that his proposal was not the best solution to the problem from the viewpoint of the acoustical engineer. He believed an entirely new hood would provide even greater noise reduction, but at a cost of $1,000 - $1,200 more than his proposed method.

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On cross examination, Botsford was confronted with a number of problems that Wheeling believed would be created by the installation of the canopy doors. With some reservatin, he stated that doors on the side of the hood would not interfere with the operations of the galvanizing unit. He [*13] also indicated that the doors might create some additional problems, but he believed that these problems could be corrected. Even though pipes passed into the blowout area rather rapidly, about 5 seconds apart, Botsford stated that the rapid succession of pipes could be accommodated if the opening and closing of the side doors was activated by an air cylinder. However, he noted that the dust box and canopy might have to be moved about 2 feet to the left to ensure that only one pipe was underneath during blowout. In his opinion, moving the box would not affect the quality of the pipe. Botsford was also questioned on whether the installation of the canopy would adversely affect the functioning of the ventilation system. Botsford stated that he did consider the effects on the system when formulating his proposal. In his opinion, the noise abatement proposal would neither substantially enhance nor detract from the effectiveness of the existing ventilation system. While he cautioned that the baffle must be positioned so that it does not block the passage of air into the exhaust pipe, he indicated that his recommendations included specific clearance distances between the baffle and [*14] the sides and top of the dust box. These distances were based on a formula that he had successfully used in other applications where it was necessary to avoid narrowing the cross-section of an air passageway. Therefore, he concluded that the air deflection created by the baffle would not significantly reduce ventilation capability.

However, Botsford admited that the baffle could cause particulate matter to be propelled and accumulate on the top of the hood and that this buildup of zinc material inside the hood could affect ventilation. Therefore, he recommended that the interior of the hood be cleaned periodically. However, if it became necessary to perform such major cleaning more often than once a week, Botsford acknowledged that the design would have to be modified to reduce the need for maintenance.

Wheeling presented only one witness, William Schroeder, general foreman in the galvanizing department. Schroeder challenged the feasibility of Botsford's proposal. He stated that it would be impossible to move the dust box because it would entail moving the blowout station as well. Additionally, he contended that enclosing the dust box would substantially impair the quality [*15] of the pipe. He indicated that in 1970 Wheeling had enclosed the dust box. As a result, that portion of pipe within the enclosed box turned dull gray, rough in texture, and was not commercially acceptable. He stated that this was caused by blowout emissions adhering to the surface of the pipe. He also stated that there is a target plate inside the hood, but that it is not completely effective in diverting particulate material. Schroeder stated that the buildup of material in the box is a major problem and that the galvanizing procedure must be halted during each shift to clear out the material that accumulates -- approximately 4 wheel barrow loads. In addition, he indicated that at least two employees working an 8-hour shift each weekend are required to clean the box. Futhermore, Schroeder stated that a sledge hammer is frequently used to dislodge accumulated material from inside the box.

Botsford was recalled for rebuttal. He testified that the doors on the side of the hood could be eliminated at least for the noise conditions he personally observed and those measured by the CO. Botsford indicated that it is possible to clear the accumulated material from the tectum. He [*16] stated that several cleaning operations would have to be performed before enough tectum would be removed to adversely effect its acoustical properties. He also noted that the tectum could be easily replaced. Furthermore, Botsford explained that the quantity of tectum could be reduced if accumulation was too extensive. In his opinion, the tectum would still be effective if its coverage was reduced to as little as 75% of the interior surface of the box.

III

Judge Harris affirmed the citation. He found that the dippers and blowout operators were exposed to excessive noise levels. The judge specifically rejected Wheeling's contention that Elliott's measurements of blast duration were not sufficiently reliable to establish a violation. Judge Harris accepted Elliott's two-second measurement, noting that although Wheeling employees offered different estimates of blast length, none of those employees had actually measured the blast and their individual estimates varied. Furthermore, the judge concluded that the reliability of Elliott's measurements was enhanced because he took 3 or 4 measurements and selected the lowest figure. In addition, Judge Harris noted that the accuracy of [*17] those measurements was corroborated by the audio dosimeter results. The judge also found that the proposed dust box enclosure was technologically feasible. He recognized that the accumulation of particulate emissions on the hood involved certain difficulties but cited the evidence establishing that the controls could be accomplished and the accumulation problem overcome. He specifically noted that the existing hood must be and is periodically cleaned. Finally, Judge Harris rejected Wheeling's contention that the cited standard is unenforceably vague and irrational. The judge held that the standard cannot reasonably be expected to prescribe precise methods of abatement because excessive noise hazards arise under a myriad of circumstances. Moreover, Judge Harris observed that the standard rationally requires feasible engineering controls instead of personal protective equipment because there are problems associated with the enforcement of rules requiring the use of ear protection.

IV

On review, Wheeling contends as it did before the judge that the citation should be vacated because 1910.95 is unenforceably vague. The Commission has held that the standard is not impermissibly [*18] vague and has rejected similar challenges to the validity of the noise standard. Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1976-77 CCH OSHD P21,023 (No. 3635, 1976), remanded, 561 F.2d 82 (7th Cir. 1977). n17 Although Judge Harris's decision preceded the Turner decision, the judge properly rejected the vagueness contention by anticipating the basic rationale set forth in Turner. Accordingly, we reject Wheeling's contention that the standard is so vague as to be unenforceable.

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n17 See also, Wheeling Corrugating Co. 77 OSAHRC 204/E9, 6 BNA OSHC 1161 1977-78 CCH OSHD P22,360 (No. 13286, 1977), pet. for rev. denied, No. 78-1030 (3d Cir. Nov. 20, 1978); Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD P21,854 (No. 10925, 1977), appeal filed, No. 77-2565 (9th Cir. July 14, 1977).

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Wheeling further contends that the citation lacks sufficient particularity because it fails to specify the noise levels found in the galvanizing department. [*19] Lack of particularity is an affirmative defense that must be raised in a pleading or motion or tried by the consent of the parties. See Gannett Corp., 4 BNA OSHC 1383, 1976-77 CCH OSHD P20,915 (No. 6352, 1976). Wheeling failed to raise this contention prior to Commission review and therefore the defense is rejected as untimely. However, Wheeling's defense that the citation was facially lacking sufficient particularity would fail even if properly raised. A citation alleging noncompliance with 1910.95 does not have to specify the excessive noise levels in order to satisfy with the particularity requirement of section 9(a) of the Act, 29 U.S.C. 658(a). The citation need only provide fair notice of the general locations of excessive noise levels. The citation in this case was sufficiently particular in that it expressly referred to the areas of excessive noise. Moreover, we note that a citation facially lacking sufficient particularity need not be declared void as a matter of law. The purposes of the particularity requirement may be fulfilled and additional information obtained during the pleading, discovery, and hearing stages of the litigation. n18

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n18 See Del Monte Corp., 77 OSAHRC 17/D12, 4 BNA OSHC 2035, 1976-77 CCH OSHD P21,536 (No. 11865, 1977).

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Wheeling also raises several challenges to the sufficiency of the Secretary's evidence. It contends that Elliott's calculations regarding the duration of exposure are inaccurate, unreliable, and therefore fail to adequately support the citation. This argument was also raised below. In his decision, Judge Harris duly considered and properly rejected Wheeling's assertion of evidentiary inaccuracy. Accordingly, we adopt Judge Harris' disposition of this contention. See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

Wheeling's second evidentiary challenge pertains to the sampling technique used by Elliott. The alleged violation is predicated upon Elliott's findings that dippers and blowout operators were exposed to excessive noise levels when present at their primary work stations. At the hearing, Elliott acknowledged that his calculations did not reflect the time [*21] the dippers and blowout operators spend in the galvanizing area performing secondary functions, i.e., supervising or relieving employees at other work stations. Wheeling contends that Elliott's findings fail to depict the "actual exposure" of those employees and therefore are inadequate to establish the alleged violation.

In essence, Wheeling's argument is a challenge to the use of sample monitoring. The allegation that employees are exposed to excessive noise levels need not be supported by evidence of continuous monitoring or evidence establishing employee exposure throughout the course of a work day. The Commission has held that "grab samples" may be used to determine employee's cumulative level of daily exposure. Wheeling Corrugating Co., supra; Boise Cascade Corp., 77 OSAHRC 43/A2, 5 BNA OSHC 1242, 1977-78 CCH OSHD P21,714 (No. 802, 1977), appeal filed, No. 77-2201 (9th Cir. May 31, 1977). In Sun Ship-building and Drydock Co., 74 OSAHRC 61/A2, 2 BNA OSHC 1181, 1974-75 CCH OSHD P18,537 (No. 268, 1974), the Commission held that the Secretary may use sample monitoring data to support a citation for excessive noise provided that the sample data is [*22] supported by other evidence from which it may reasonably be inferred that employees were exposed to excessive sound levels as defined by Table G-16. See also Weyerhauser Co., 77 OSAHRC 9/A2, 4 BNA OSHC 1972, 1976-77 CCH OSHD P21,465 (Nos. 1231 & 1758, 1977), appeal filed, No. 77-1611 (9th Cir. March 11, 1977). In this case, the sample data obtained by Elliott and other supporting evidence establish that Wheeling's dippers and blowout operators were exposed to excessive noise levels. On the day of the inspection the blowout noise lasted for a total of 221 minutes. The record reveals that each dipper and blowout operator on the shift was at his primary work station for at least one-half of that time or 111 minutes. During those 111 minutes each blowout operator was exposed to a noise level of 108 dBA and each dipper to a noise level of 103 dBA. n19 In both instances that level of exposure exceeds the prescribed limit set forth in Table G-16 and would still exceed those limits regardless of the level of noise to which dippers and blowout operators are exposed when not at their primary work stations. Furthermore, the audio dosimeter readings taken by Elliott [*23] independently establish that the dipper and the blowout operators were exposed to the alleged noise levels for excessive periods of time. The audio dosimeter attached to the blowout operator revealed that, after completing less than 6 hours of his shift, he had already been exposed to more than three times the level of noise that is permissible under the standard for his entire shift. Similarly, the reading obtained from the device attached to the dipper revaled exposure, after less than 6 hours, of nearly five times the permissible level. These readings not only substantiate the reliability of Elliott's "grab samples" but independently establish excessive exposure. See Love Box Co., 76 OSAHRC 45/D5, 4 BNA OSHC 1138, 1141 n. 2, 1975-76 CCH OSHD P20,588, 24,639 n. 2, (No. 6286, 1976). Accordingly, we conclude that the Secretary's evidence pertaining to the duration of exposure is adequate to support the alleged violation.

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n19 Wheeling does not challenge the accuracy of the readings taken by the sound level meter.

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The foregoing contentions are interrelated with Wheeling's assertion that the citation must be vacated because the Secretary has failed to consider the total noise problem in the galvanizing department. More specifically, Wheeling argues that the relative merit or feasibility of a noise abatement program cannot be evaluated unless the noise problem in a facility is treated comprehensively. Wheeling submits that the Secretary's approach to the case is insufficient as a matter of law because the evidence does not consider noise sources other than blowout and fails to document the actual or cumulative exposure of blowout operators and dippers.

In part this contention is resolved by our conclusion that it is not necessary to support an alleged violation of 1910.95 with proof of actual exposure obtained exclusively by continuous monitoring. We also observe that the Secretary's approach to Wheeling's noise problem is by no means as limited as Wheeling suggests. The record does reveal that there were secondary sources of noise in the galvanizing department. However, it is also clear that the blowout was the primary if not the sole source of the impermissibly high noise [*25] levels. Thus, there is a significant employee health benefit to be derived from the reduction of excessive noise produced by the blowout operation. Accordingly, we conclude that the Secretary's approach to this case accomplishes the purposes of the Act and must be sustained. See Carnation Co., 78 OSAHRC 54/D9, 6 BNA OSHC 1730, 1978 CCH OSHD P22,837 (No. 8165, 1978), appeal filed, No. 78-2894 (9th Cir. Aug. 18, 1978).

Wheeling's remaining arguments involve its basic assertion that the Secretary has failed to establish the existence of technologically feasible engineering controls. These arguments are essentially the same as those submitted to Judge Harris. We conclude that the judge properly held that the engineering controls suggested by the Secretary are feasible and adopt his disposition of this issue. n20 See Gulf Oil, supra.

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n20 The judge's erroneously attributed to Botsford testimony that the tectum need not be replaced more often than once every 3 to 5 weeks. Nevertheless, we conclude that the judge properly evaluated the feasibility of the controls suggested by the Secretary, duly noting that the tectum could easily be cleaned and replaced when necessary.

[*26]

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However, one of Wheeling's arguments warrants further discussion. Wheeling contends that the controls proposed by the Secretary are deficient in that they fail to consider attenuation requirements for pipes larger than 1-1/4 inches in diameter. The evidence establishes that enclosing the dust box can reduce blowout noise for 3/4-inch and 1-1/4-inch pipe to within the limits prescribed by Table G-16. Furthermore, the record reveals that 3/4-inch pipe was produced in the greatest quantity. Inasmuch as 3/4-inch and 1-1/4-inch pipe together comprise a substantial portion of Wheeling's galvanizing output, the reduction that is demonstrably attainable for those sizes alone would warrant implementation of noise abatement methods. See Carnation Co., supra. However, the evidence supports Botsford's prediction that the dust box enclosure would achieve significant noise reductions for the blowout of larger pipe. Indeed, Botsford specifically described additional measures that could be implemented to achieve compliance for the larger pipe sizes. Moreover, 1910.95 contemplates situations where [*27] controls will benefit employee health but be unable to achieve optimal results. Consequently, it was not necessary for the Secretary to establish the precise reductions for larger pipe or even whether those reductions would bring noise levels to within Table G-16 limits for pipe larger than 1-1/4 inches. It is well settled that controls are technologically feasible even though the noise reduction accomplished by their implementation does not reduce the noise to permissible levels. Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (Nos. 3973 et al., 1976), appeal withdrawn, No. 76-3229 (9th Cir. April 26, 1977). Wheeling's contention is rejected.

Accordingly, the judge's decision is affirmed. It is so ORDERED.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, Concurring:

I agree with the result in this case, and I am in general agreement with the reasons advanced by the majority in their disposition of the issues. However, I do not agree with the majority's discussion of the question whether the citation is sufficiently particular, and I do not join in their conclusion that audio dosimeter readings alone are sufficient to establish exposure to [*28] noise levels in excess of those permitted by the standard, 29 C.F.R. 1910.95. Lastly, in my view it is necessary to state why the Commission in this case need not reach the issue of whether the controls suggested by the Secretary are economically feasible.

The purpose of the particularity requirement of the statute is to insure that a citation provides fair notice of the nature of the alleged violation or violations so that the employer may make an informed decision whether or not to contest the allegations and may determine the means to abate the violation in the event it elects not to contest. E.g., Gannett Corp., 4 BNA OSHC 1383, 1976-77 CCH OSHD P20,815 (No. 6352, 1976). The majority conclude that in order to be sufficiently particular, a citation for violation of 29 C.F.R. 1910.95 need only provide notice of the "general locations" or "areas" of excessive noise. I do not agree. Writing for the majority in B.W. Harrison Lumber Co., 76 OSAHRC 49/A2, 4 BNA OSHC 1091, 1975-76 CCH OSHD P20,623 (No. 2200, 1976), aff'd, 569 F.2d 1303 (5th Cir. 1978), I concluded that in order to properly understand its obligations under the noise exposure standard the employer [*29] must be aware both of the existing noise levels and the locations where those levels existed. Because the citation in B. W. Harrison simply alleged a violation of the noise standard without specifying either the noise levels measured by the inspector or their locations, and the record showed that the employer was not otherwise cognizant of the abatement action required, I concluded that the employer could not be held in violation of the Act for having failed to abate the violation. In affirming our decision on appeal, the Fifth Circuit specifically stated that the citation "should have noted the particular work stations where the noise was excessive. Thus informed, the employer would be able to correct the noise levels at those locations." 569 F.2d at 1308 (emphasis added).

I have reconsidered the issue of particularity in the light of the Fifth Circuit's opinion. It is no longer my view that a citation must set forth the specific noise levels measured by the Secretary's inspector. It is sufficient that the employer know that the noise levels exceed the requirements of the standard. The employer may then take its own noise level measurements. Because the employer [*30] presumably is familiar with its employees' work assignments and duties, the reasonably diligent employer should be able to ascertain the existing noise levels and to reach an informed judgment as to whether and how much employees are exposed to levels in excess of those prescribed by the standard. n1 However, the employer cannot properly make determinations regarding the level of noise to which employees may be exposed and the duration of such exposure unless it is aware of the specific locations of the noise levels which the Secretary is alleging to be excessive. Moreover, the employer cannot intelligently evaluate its abatement responsibilities unless it is aware of the noise sources in issue. Therefore, in my opinion, a citation issued under the noise exposure standard must set forth the precise locations of the allegedly excessive noise in terms of the machinery that is generating those levels or the employee work stations affected, unless the employer is otherwise in possession of the necessary information at the time the citation is issued. n2 Because the citation in this case stated the employee work stations in issue, I agree that it fulfills the particularity requirement [*31] of the statute.

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n1 The permissible noise levels vary depending upon the duration of the employees' exposure. See note 1 of the lead opinion.

n2 Whether a citation provides adequate notice in a given situation does not depend solely upon the language of the citation where the citation is lacking in particularity on its face. In such circumstances the Commission must look to external factors such as the circumstances surrounding the inspection and the employer's own knowledge of its business to determine whether the employer has been so prejudiced by the lack of specificity in the citation that the citation should be vacated. B. F. Goodrich Textile Products, 77 OSAHRC 79/A2, 5 BNA OSHC 1458, 1977-78 CCH OSHD P21,842 (No. 13067, 1977); Gannett Corp., supra; B.W. Harrison Lumber Co., supra. Therefore, the Commission may not be able to determine whether or not the citation is sufficiently particular until the evidentiary record is complete and it can determine what the employer knew regarding the nature of the violation and the necessary abatement action other than whatever information was conveyed in the citation itself.

To the extent the majority opinion concludes that an otherwise defective citation may be cured by information obtained by the employer during adjudication, through discovery or other means, I disagree. The purpose of the particularity requirement is satisfied only if the employer has sufficient information to make meaningful decisions at the time the citation is issued.

[*32]

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As to the matter of proof of excessive noise exposure in this case, unlike the majority I do not find it necessary to consider whether dosimeter readings alone are a sufficient bais to establish excessive exposure under the requirements of the standard. In disposing of Respondent's contentions regarding the accuracy of Elliott's sampling techniques, Judge Harris concluded that Elliott's sound level mater readings were sufficient to prove excessive exposure essentially for the same reasons that the majority set forth in their opinion. In his discussion the judge specifically stated, "[r]eliance for establishment of excessive exposure is not predicated on the audio dosimeter readouts in this matter." Since Respondent on review raises the same contentions that the judge properly considered and rejected, his decision relying solely on the sound level meter readings should be adopted n3 without further discussion under the precedent that the majority themselves acknowledge. Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (N. 14281, 1977).

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n3 Insofar as the majority suggest that Love Box Co., 76 OSAHRC 45/D5, p.9 n.2, 4 BNA OSHC 1138, 1141 n.2, 1975-76 CCH OSHD P20,588 at 24,639 n.2 (No. 6286, 1976) supports the proposition that dosimeter readings alone are sufficient, I must respectfully disagree. In that case, the Commission stated that the standard does not "preclude" use of a dosimeter and does not "require" use of a sound level meter as an "exclusive" measuring instrument. Our decision did not, however, expressly conclude that use of dosimeters is sufficient to prove a violation of the standard. Moreover, we expressed agreement with the judge in that case who had stated that the standard "neither endorses nor prohibits measurement of noise by means of audio dosimeters." 76 OSAHRC 45/E6, p.11.

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Lastly, in my view the Secretary is required to demonstrate the economic as well as the technological feasibility of his suggested noise controls. Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (Nos. 3973 et al., 1976). However, I would not [*34] reach the issue of economic feasibility in this case because it was not raised by the parties.

This case was tried and argued before the judge and decided by him prior to issuance of our decision in Continental Can, supra, where I first announced that I would require the Secretary to establish the economic feasibility of noise controls on a cost-benefit basis. Consequently, that issue was not raised before the judge nor addressed in his decision, and the record does not contain sufficient evidence on which to apply the cost-benefit test. n4 However, the parties filed their submissions before us on review after Continental Can had issued, and thus had an opportunity to raise the issue if they so desired.

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n4 For example, although the record indicates an implementation cost for Botsford's proposed control, it does not show the costs of ongoing maintenance or replacement of tectum that may be necessary. See Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD P21,854 (No. 10925, 1977), petition for review filed, No. 77-2565 (9th Cir. July 15, 1977).

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Since neither party has raised the question before us on review nor asked for leave to present additional evidence regarding the relative costs and benefits of controls, I would conclude that they have waived consideration of that issue. n5

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n5 Accordingly, this case is distinguishable from two cases which courts of appeals have remanded to the Commission for consideration of economic feasibility of noise controls on a cost-benefit basis. In Turner Co. v. Secretary of Labor, 561 F.2d 82 (7th Cir. 1977), the employer had raised the issue and it was addressed by the Commission. The case was nevertheless remanded to us because we had not applied a cost-benefit analysis in our review of the economic feasibility issue. Economic feasibility was not raised before the Commission in another remand case, RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979), but there, unlike the case now before us, the parties' submissions to the Commission were filed before the issuance of our decision in Continental Can, supra. Moreover after the Continental Can decision was rendered, RMI raised the economic feasibility issue before the court of appeals. The court, noting that the parties had not been on notice to litigate the issue of economic feasibility before the Commission, concluded that RMI could properly raise the issue before it and thereafter remanded the case for the taking of additional evidence and a ruling on the economic feasibility issue.

[*36]

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