1 of 202 DOCUMENTS

TURNER COMPANY

OSHRC Docket No. 3635

Occupational Safety and Health Review Commission

December 31, 1980

[*1]

BEFORE: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

William V. Hollander, Director, Loss Prevention & Environmental Control, Winchester Group, Olin Corp., for the employer

William B. Dickinson, Olin Corp., for the employer

R. P. Atkins, President, Local No. 5292 - USWA, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This case is before the Commission on an order of remand issued by the United States Court of Appeals for the Seventh Circuit. Turner Co. v. Secretary of Labor and OSHRC, 661 F.2d 82 (7th Cir. 1977).

In the Commission decision in this case, Turner Company ("Respondent") was found in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"), for failure to comply with the standard at 29 C.F.R. 1910.95(b)(1) n1 because feasible engineering controls were not utilized in areas where employees were subjected to excessive sound levels. Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1976-1977 CCH OSHD P21,023 (No. 3635, 1976) ("Turner"). Administrative Law Judge Sidney J. Goldstein held, among other [*2] things, that Respondent had conceded the feasibility, both technological and economic, of such controls. On review, Respondent denied that its concession regarding engineering controls included their economic feasibility. In affirming the judge's decision, the Commission adopted his finding that Respondent had effectively conceded all aspects of the feasibility issue.

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n1 The standard provides:

1910.95 Occupational Noise Exposure

* * *

(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.

Table G-16 -- Permissible

Noise Exposures

Duration per

Sound level dBA

day, 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

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The United States Court of Appeals for the Seventh [*3] Circuit set aside the Commission's order and remanded the case for further proceedings. The court held that the Commission erred in failing "to consider the relative cost of implementing engineering controls in Turner's Waterbury room in its Sycamore, Illinois, plant versus the effectiveness of an existing personal protective equipment program utilizing individually fitted earplugs." 561 F.2d at 83. The court expressly adopted the interpretive test announced by the Commission in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977) ("Continental Can"). In Continental Can, the Commission held:

[ 1910.95(b)(1)] should be interpreted to require those engineering and administrative controls which are economically, as well as technically feasible. Contrlos may be economically feasible even though they are expensive and increase production costs. [Citations omitted.] But they will not be required without regard to the costs which must be incurred and the benefits they will achieve. In determining whether controls are economically feasible, all the relevant cost and [*4] benefit factors must be weighed.

4 BNA OSHC at 1547, 1976-77 CCH OSHD at p. 25,256. The court characterized the Commission's decision in Turner as antagonistic to and in direct conflict with the Commission's position in Continental Can. Therefore, the court remanded the case so that the Commission might "realistically consider the hazards presented by the excessive noise in Turner's Waterbury room and determine whether the health benefits to employees who are already equipped with personal protection equipment justify the $30,000 cost to Turner for engineering controls." 561 F.2d at 86.

The Commission has recently reaffirmed the Continental Can test for economic feasibility. Samson Paper Bag Co., 80 OSAHRC    , 8 BNA OSHC 1515, 1980 CCH OSHD P24,555 (No. 76-222, June 13, 1980). Continental Can did not purport to establish specific guidelines that would be applicable in all cases; rahter the decision stated that the "ultimate determination in each individual case must be made by weighing all the relevant factors in light of the objectives of the Act." 4 BNA OSHC at 1548, 1976-77 CCH OSHD at p. 25,257. Our review of the case indicates that there is insufficient [*5] information in the record to perform the cost-benefit analysis which the court deemed essential to a rational interpretation of 29 C.F.R. 1910.95(b)(1) in this case. n2 Accordingly, we remand the matter to the administrative law judge who is ordered to take evidence and to make a determination on the issue of economic feasibility, as ordered by the court. n3 IT IS SO ORDERED.

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n2 In its brief on remand, the Respondent correctly points out that the record is deficient in several essential respects. This case involves excessive noise emitted by three machines. However, the figures regarding the estimated cost of designing, fabricating and installing engineering controls relate to only two machines, the Waterbury press and the Niagara press. There are no estimates for the third machine in the work area, the Bliss press. Moreover, there are no estimated maintenance costs for any of the three machines.

n3 Respondent also argues that the feasibility determination must consider cost figures adjusted to reflect the effects of subsequent inflation. However, it is clear that the judge's ultimate determination must be predicated upon a finding of costs and benefits as they existed at the time of the alleged violation.

[*6]

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