SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
OSHRC Docket No. 456
Occupational Safety and Health Review Commission
March 5, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On September 29, 1972, Judge Ben D. Worcester issued his decision and order in the instant case vacating the Secretary's citation and proposed penalty with respect to two non-serious violations and affirming a third non-serious violation, but vacating the proposed penalty for that item.
On October 17, 1972, former Commissioner Alan F. Burch directed that the decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act").
Review was directed on the following specific issues:
(1) Whether substantial evidence of the record as a whole supports the finding of violations of 29 C.F.R. 1910.242(b) and 29 C.F.R. 1910.23(a)(8) and,
(2) Whether the vacating of the proposed penalty for the violation of the provisions of 29 C.F.R. 1910.95(a) and 29 C.F.R. 1910.95(b)(1) and (3) was appropriate under the circumstances of this case.
The direction invited exceptions on any additional issues. In this connection, the respondent challenges that portion of the Judge's decision [*2] and order affirming item 3 of the citation that charged the respondent with a violation of the noise exposure standard contained in 29 C.F.R. 1910.95(a) and (b)(1) and (3).
The Commission has reviewed the briefs filed by the parties, and has considered the entire record. We adopt the Judge's decision to the extent that it is consistent with the following discussion of the alleged violation of the noise exposure standard.
The respondent is a public utility operating in Southwestern Indiana. The workplace involved is the respondent's electric generating station, known as the Ohio River Station, in Evansville, Indiana.
The Ohio River Station initially used coal as the energy source for its boilers. Because of local air pollution requirements, the respondent converted in 1971 from boilers fired by coal to those fired by gas and oil. Large volumes of natural gas were required for this purpose. Because of the gas pressure, problems with the noise level were anticipated and the level was somewhat controlled by means of a gas regulating station outside the plant. Nevertheless, when a multiple number of boilers were put into operation in the fall of 1971 and as the volume [*3] of natural gas increased, a substantial noise problem became evident. To deal with the problem, the respondent provided ear protection for employees in the form of Swedish Wool, which is a fine spun fiberglass, to be inserted in the ear. In addition, a number of pairs of protective earmuffs were obtained. Engineering control of the noise by means of mufflers or silencers was also studied. Vendors of sound reducing materials and devices were contacted. A formal purchase order for silencers was issued by the respondent in November 1971. The silencer for the gas pipeline was manufactured and delivery was scheduled for 12 to 14 weeks following the order. Delivery of the silencer was not made until June 1972.
The Judge found that the respondent had failed to require the use of personal protective equipment and further that the respondent had given no official written order on or before November 8, 1971, directly to employees to use the protective equipment. November 8, 1971, was the date of inspection. Although there was no written order, there was testimony on behalf of the respondent that when employees were discovered without ear protection in high noise areas they [*4] were instructed to obtain ear protection immediately.
The testimony of the two compliance officers conducting the inspection on November 8, 1971, is conflicting with respect to the use of protective equipment. One testified that he did not see any employees with ear protection, while the other testified that he saw one employee without ear protection but saw others with ear protection. Thus, the finding of the Judge is dependent upon his assessment of contradictory evidence and the demeanor of the witnesses. We accept that credibility finding. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951), Davis; Administrative Law Treatise, § 10.04.
One of the compliance officers, an industrial hygienist, took measurements with a sound meter at the control panel in the boiler room. He found sound levels in three different locations of 97, 99, and 102 dBA. In addition, the respondent's plant manager acknowledged that the company's records showed the sound level as high as 103 dBA for as much as three hours. Accordingly, we conclude that the respondent violated 29 C.F.R. 1910.95(a) and (b), and the employer, therefore, has breached his duty under section 5(a)(2) of the [*5] Act.
The respondent argues correctly that there would be no violation of section 1910.95(a) if sound levels exceed those shown on Table G-16, so long as the employer is complying with the requirements of paragraph (b) of that section. But paragraph (b) has not been complied with here. The respondent correctly asserts that "Swedish Wool" is an acceptable protective device. The Secretary of Labor's Bulletin 334 (Respondent's Exhibit No. 19) recognizes this. But the critical matter is that it may be inferred from its lack of use that respondent was not diligent in requiring that it be used. The standard expressly requires not only that the protective equipment be provided, but also that it be used.
The Secretary argues that the penalty proposed for the noise exposure violation cannot be disturbed because the respondent had withdrawn its contest to the proposed penalties and agreed that the proposed penalties were appropriate for any violations found. We conclude that the penalty issue is properly before us. n1 When a citation is contested, an exhaustive record is made at a hearing on the basis of a complaint that restates the allegations of the citation. The penalty [*6] assessment should be made on the record as a whole rather than on the less complete information available at the investigatory stage and on which the Secretary based his penalty proposal. Indeed, it may be an abuse of discretion to do otherwise. n2
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n1 Thorlief Larsen & Son, Inc., No. 370 (January 17, 1973); Florida Eastcoast Properties, Inc., No. 2345 (February 5, 1974); section 17(j) of the Act.
n2 Brennan v. O.S.H.R.C. & Interstate Glass Co., No. 73-1029 (8th Cir., 1973).
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We do not assess any penalty because of the noise exposure violation. The existence of the violation itself required the resolution of a close question of fact involving conflicting evidence. The essence of the violation is that although the employer provided personal protective equipment to guard against the noise exposure, there was some breakdown in requiring the actual use of that equipment. Nevertheless, we are convinced of the substantial good faith efforts made by the employer to eliminate the hazard of noise exposure [*7] and we note that these efforts occurred both before and after the inspection. The employer has taken substantive and expensive measures toward a permanent solution to the noise problem and should be commended for its efforts.
Accordingly, we would give the employer the fullest credit possible under the Act because of its good faith. We also note that although we would normally expect noise exposure to have considerable gravity, there is no evidence in the record before us to support a finding in this regard. We are not empowered to provide such information ourselves. National Realty and Constr. Co., Inc. v. O.S.H.R.C., No. 72-1978, (D.C. Cir., December 13, 1973).
SO ORDERED.
CONCURBY: MORAN (In Part)
DISSENTBY: MORAN (In Part)
DISSENT:
MORAN, CHAIRMAN, concurring in part, dissenting in part: I concur with the disposition affirming the judge's finding vacating items 1 and 2 of the citation: the alleged failure to comply with the requirements of the occupational safety and health standards published as 29 C.F.R. § 1910.23(a)(8) and 1910.242(b).
I dissent from the finding that respondent violated the Act through failure to observe the requirements of the occupational safety and [*8] health standard published as 29 C.F.R. § § 1910.23(a)(8) and 1910.242(b). I submit that neither the Commission's decision, the judge's finding, nor the evidence of record is sufficient to support such a conclusion.
The exact time of the violation of the said regulations was specified as November 8, 1971, the date on which 2 representatives of complainant conducted an inspection of respondent's electric generating station in Evansville, Indiana. The transcript shows as follows:
JUDGE WORCESTER: As I understand it, the issues before me . . . occurred on a certain date and that date was November 8, 1971. Is that the date?
MR. ROSEN [counsel] for complainant]: That was the date, Your Honor.
Essential to the establishment of a violation of the said regulations is evidence that there was (a) one or more employees of respondent exposed to sound levels in excess of those specified in the regulations, (b) the time of such exposure exceeded the limits so specified, and (c) the employee or employees so exposed were absent the prescribed ear protection.
There was no such evidence in this record.
The Commission relies upon 2 items of evidence to sustain its conclusion that a violation [*9] has been established: (1) Testimony of the two inspectors (admittedly contradictory) and (2) An admission by respondent's plant manager which "showed the sound level as high as 103 dBA for as much as three hours."
The inspector's testimony could not establish a violation on the basis of their own observations during their November 8th inspection because their inspection was too brief. The evidence showed that they were in respondent's plant for one-half hour that morning (11:30 a.m. until noon) and one hour that afternoon (1:00 p.m. until 2:00 p.m.). The hazard which the regulation prohibits is continuous exposure of an employee to excessive sound on a time-weighted average over the period of a seven to eight hour workday. Not only were the inspectors' measurements too brief to establish exposure for such lengths but they showed only instantaneous readings of the sound levels produced by various pieces of machinery. They do not show continuous employee exposure thereto.
The admission by respondent's plant manager of a 103 dBA sound level for a period of three hours not only does not show any employee exposure thereto but the date thereof is clearly specified in the record [*10] as "October 20, 1971" -- a date on which complainant has not alleged that any offense occurred.
The Commission's decision regarding the noise citation and the discussion thereof includes a number of other errors which I see little purpose in taking up in this opinion particularly since the record is clear that the evidence has not established any violation of the Act as alleged in said citation.
[The Judge's decision referred to herein follows]
WORCESTER, JUDGE, OSAHRC: This proceeding came on for hearing pursuant to the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter referred to as the Act) at Evansville, Indiana, on June 26, 1972.
On January 6, 1972, the Secretary issued a citation under the provisions of Section 9(a) of the Act and a notice of proposed penalty under authority of Section 10(a) of the Act. The Respondent filed a notice of contest on January 24, 1972, thus giving this Commission jurisdiction under the provisions of Section 10(a) of the Act.
The Secretary filed a complaint on February 3, 1972. As amended at the hearing it alleged that an inspection of the Respondent's Ohio River [*11] Station, a power facility at Evansville, Indiana, on November 8, 1971, revealed that the Respondent was in violation of the standards promulgated in Title 29 of the Code of Federal Regulations and recommended that a proposed penalty of $135.00 be assessed for such alleged violations. It was the prayer of the complaint that the citation and proposed penalty be affirmed. The citation alleged that the Respondent:
(1) Failed to reduce to less than 30 p.s.i. compressed air used for cleaning purposes in the machine shop. [29 C.F.R. 1910.242(b)] (Item 1 of citation).
(2) Failed to properly guard floor hole into which persons can accidentally walk by either:
(i) a standard railing with standard toeboard on all exposed sides, or
(ii) a floor hole cover of standard strength and construction (south end of the building between the #1 and #2 boilers). [29 C.F.R. 1910.23(a)(8)] (Item 2 of citation).
(3) Failed, when employees working at or near the control panel for boiler #6, at or near boilers #7 and #8, and in other areas of the boiler room were subjected to sound exceeding the limits set by table G-16 of 29 C.F.R. 1910.95(b), to utilize feasible administrative or engineering [*12] controls to reduce sound so it does not exceed said limits, or to the extent such controls failed to reduce the sound so it does not exceed such limits, to provide and require the use of personal protective equipment to reduce the sound so it does not exceed said limits. Respondent also failed to administer a continuing, effective hearing conservation program for employees working in the above-mentioned locations where the minimum sound level of the aforesaid table was exceeded. [29 C.F.R. 1910.95(a), and 29 C.F.R. 1910.95(b)(1) and (3)] (Item 3 of citation).
STIPULATIONS
It was stipulated by and between the parties that the Respondent is an Indiana corporation having its principal office in Evansville, Indiana; that it is engaged in a business which affects commerce within the meaning of the Act; that at all times material to the issues herein it had control of the equipment, machinery and premises referred to in the citation and complaint; that no injuries resulted from the alleged violations; that there is no record of previous violation of the Act or regulations; and that service of the citation and notice of proposed penalties was proper.
The Respondent's principal office [*13] is at 20-24 Northwest Fourth Street in Evansville, Indiana. The company serves a southwestern Indiana region of about 2,250 square miles with a population of approximately 282,000. Electric service is supplied directly to the City of Evansville and 70 other cities, towns, and communities, and indirectly to an additional 32 communities. Natural gas service is supplied to Evansville and 20 other nearby communities. Total operating revenue for the year 1971 was $49,697,218. Stockholders equity was $65,138,973.
THE ISSUES
The Respondent in its answer to the complaint averred that the Occupational Safety and Health Review Commission could not hear and determine the alleged violations enumerated as Items 1 and 2 of the citation and described in paragraph IV(a)(1) and (2) of the complaint on the ground that all evidence obtained by the Secretary with respect to such alleged violations was obtained through an illegal search and seizure in violation of the Respondent's rights guaranteed by the Fourth Amendment to the Constitution of the United States. The Respondent also averred that the Commission had no jurisdiction to hear and determine that part of paragraph IV(a)(3) of [*14] the complaint charging the Respondent with failure to provide and require the use of personal protective equipment to reduce sound and to administer a continuing effective hearing conservation program on the ground that such allegations were not contained in the citation. The Respondent argued that the Commission has jurisdiction only of the violations alleged in the citation and, secondly, that hearing and determining alleged violations not set forth in the citation, violated the Respondent's rights guaranteed under the due process clause of the Fifth Amendment of the Constitution of the United States.
The right of the sovereign to invade the private domain is an issue which has been in controversy for more than 300 years. In Colonnade Catering Corporation v. United States, 397 U.S. 30 (1970), the Court noted that the Fourth Amendment provision banning unreasonable searches and seizures arose out of a 1660 Act of Parliament in England authorizing commissioners to enter brewing houses for inspection on demand. The State of Massachusetts, on June 24, 1692, enacted a similar statute but the highest court divided on this question so that it resolves itself into an [*15] issue which must be determined on a case-to-case basis. This history speaks eloquently of the complexity of this issue.
This issue is further complicated in the instant case by the fact that the Occupational Safety and Health Act of 1970 is new legislation in which no precedent exists. It has characteristics in its enforcement provisions which parallel criminal procedures. However, Section 10(c) of the Act specifies that a hearing after a notice of contest is filed as a civil proceeding governed by the Administrative Procedure Act (5 U.S.C. Sec. 554).
At the opening of the hearing the Respondent moved for suppression of all evidence in support of Items 1, 2, and 3 of the violations on these grounds. Such evidence was admitted with ruling reserved until the conclusion of the hearing.
Section 11 of the Administrative Procedure Act, 5 U.S.C. Sec. 3105, created the position of Hearing Examiner, now known as Administrative Law Judge. Such a Judge presiding under authority of Section 7 of the APA, 5 U.S.C. Sec. 556, has no power to declare an Act of Congress unconstitutional. Only the statutory courts have authority to take action which runs counter to the express will of the legislative [*16] branch. Central Nebraska Public Power Irr. Dist. v. FPC, 160 F. 2d 782 (8 Cir. 1947), cert. den. 332 U.S. 765, 68 S. Ct 72, 92 L. Ed. 351. The Respondent nevertheless properly raised this issue at the administrative level. Failure to do so might have prejudiced its right to raise such an issue later. The Respondent was required to exhaust its administrative remedies before testing the constitutionality of the Act and its enforcements in the courts. Lance Roofing Company v. Hodgson, Civil No. 16012 (D. Ga., filed May 23, 1972); Gorham Mfg. Co. v. State Tax Comm., 266 U.S. 265, 269 (1924). An Administrative Law Judge does have the power to determine constitutional applicability. Central Nebraska Public Power Irr. Dist. v. FPC, supra.
The Respondent in its post hearing brief argues that the Secretary has the burden of proving the alleged violations beyond a reasonable doubt (Brief, page 3). The Occupational Safety and Health Act is not a criminal act. Except for a willful violation causing death of an employee, all citations under the Act involve only civil penalties. Only a preponderance of the evidence satisfies the burden of proof [*17] of a proceeding brought under the provisions of the Administrative Procedure Act. Pacific Gas and Elec. Co. v. S.E.C., 127 F. 2d 378, 139 F.2d 298, aff'd 65 S. Ct. 855, reh. den. 65 S. Ct. 1010 (1947).
Subsequent to the hearing, Complainant moved to correct the transcript. There being no objection and the proposed corrections appearing to be consistent with evidence received, this motion is granted.
It is undisputed that entry to the Respondent's premises on November 8, 1972, was gained without a warrant. The Respondent argues that a warrant was required. It was contended that this placed the Secretary in the position of the Commissioner in the case of U.S. v. Leahey, 434 F. 2d 7 (1st Cir. 1970). The Internal Revenue Service had published a general guideline informing the public that, before conducting an investigation involving a possible criminal penalty, they would advise the parties being interrogated of their rights. Evidence secured by the IRS without advising Leahey that a possible criminal fraud was involved was suppressed. The instant case is distinguishable.
The intent of the Congress is set forth in Section (2) of the Occupational Safety [*18] and Health Act. It is to assure, as far as possible, that every working man and woman in the nation shall have safe and healthful working conditions. Section (8)(a) of the Act authorizes the Secretary to carry out this purpose by entering, without delay and at all reasonable times, any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed on presenting appropriate credentials to the owner, operator or agent in charge. It is plain to be seen that it was not the intention of Congress that the Secretary be required to first secure a warrant before making an inspection.
The Court in Leahey, supra, relied strongly on the fact that the public had been mislead by the failure of the IRS agents to follow their own instructions. That did not happen in the instant case. The Secretary's Compliance Operations Manual explains how a warrant may be secured. It is suggested that an inspection warrant be obtained in cases where a refusal to permit entry is encountered. It is not a requirement in every case, so the compliance officers in the instant case were not violating the Secretary's procedures nor could it be said that the [*19] Respondent had been mislead in any way. The legislative history makes it clear that Congress intended that employers not be forewarned of inspections. It was intended that the enforcement officers should appear without notice, show their credentials and ask to make an inspection. H. Rep. No. 91-1291, 91st Cong., 2nd Sess., July 9, 1970 at page 26.
In both Colonial America and in England searches of private property were common. This practice began during the reign of the Tudors under a system of state licensing of printers where a private printing guild was given broad powers to search and seize "undesirable" publications, See Arber, A Transcript of the Registers of London (London 1875, Vol. I.p. xxxi) Later, Writs of Assistance aimed at discovering and seizing smuggled goods were issued. They directed all King's officers to assist in their execution. They were in effect permanent search warrants during the life of the Sovereign. They were used for the same purpose in the Colonies. ( Quincey's [Gray] Massachusetts Reports, 1761-1772, App. 1, pp. 395-540). The use of this power, particularly in enforcement of the unpopular stamp tax, caused so much resentment [*20] that several colonies adopted provisions proscribing such general warrants. This protection of privacy was guaranteed in all of Colonial America with the adoption of the Fourth Amendment guaranteeing freedom from "unreasonable" searches and seizures. The Constitution does not define the term "unreasonable" nor does the Fourth Amendment contain any exceptions, but there are some from judicial interpretation.
At one time it was held that any search without a warrant was unreasonable. Boyd v. U.S., 116 U.S. 616 (1885). This is still the rule unless the search comes within the ambit of certain recognized exceptions such as search with consent. U.S. v. Mitchell, 322 U.S. 65 (1944).
In U.S. v. Mitchell (supra) the defendant had been illegally detained by the police. During this period, with his consent and without a warrant, the police took custody of stolen property in his home. His conviction in the court below was reversed on appeal on the ground that the confession and the stolen property were improperly received in evidence. The Supreme Court said at 70:
. . . For not until eight days after the statements were made was Mitchell arraigned before [*21] a committing magistrate. Undoubtedly his detention during this period was illegal . . . Illegality is illegality, and officers of the law should deem themselves special guardians of the law. But in any event the illegality of Mitchell's detention does not retroactively change the circumstances under which he made the disclosures. These, we have seen, were not elicited through illegality. Their admission, therefore, would not be used by the Government of the fruits of wrongdoing by its officers. Being relevant, they could not be excluded only as a primitive measure against unrelated wrongdoings by the police. Our duty in shaping rules of evidence relates to the propriety of admitting evidence. This power is not to be used as an indirect mode of disciplining misconduct.
In the case of Camara v. Municipal Court, 387 U.S. 523 (1967), the Court said at page 533:
The question is not, at this stage at least, whether these inspections may be made, but whether they may be made without a warrant . . . In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest [*22] justifies the type of search in question, but whether the authority to search should be evidenced by warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.
In See v. City of Seattle, 387 U.S. 541, (1967), the Court noted that it had held that the Fourth Amendment bars prosecution of a person who has refused to permit a warrantless code enforcement inspection of his personal residence and that the only question which the See case presented was whether the Camara rule applies to similar inspections of commercial structures which are not used as a private residence (page 542).
The search of a private dwelling is presumptively unreasonable if conducted without a warrant. A businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. He too has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without an official authority evidenced by warrant. [*23]
The Court said at 545:
administrative entry, without consent, upon the portions of commercial premises which are not opened to the public may only be compelled through the prosecution or physical force within the framework of a warrant procedure.
The Court said that it did not intend to imply that business premises may not reasonably be inspected in many more situations than private homes nor did the Court question accepted regulatory techniques which require inspections. Any constitutional challenge to such programs could only be resolved on a case-to-case basis under the general Fourth Amendment standard of reasonableness.
In the instant case the Secretary's office had a complaint involving a condition, which if found to be valid, would seriously impair the health of the Respondent's employees. It was the Secretary's duty under Section 8(a) of the Act to investigate the complaint promptly. His compliance officers upon identifying themselves were entitled to make an inspection so long as it was done at a reasonable time during regular working hours, and it was conducted in a reasonable manner. It could not be said that the noise complaint, even though it could not be considered [*24] an emergency, was not one which did not require prompt response. Considering all of these facts it could reasonably be argued that the public interest requires an exception to the general rule that an administrative inspection cannot be made without a warrant. However, the Supreme Court has rejected this argument saying that it "misses the mark" Camara v. Municipal Court, (supra) at 533. The question is not whether the inspections may be made but whether they may be made without a warrant.
There is no reason why the compliance officers, when they received the complaint, could not have requested that a search warrant be issued. There is no indication that this would have delayed their inspection nor is there any evidence that the reported facts suggested that there was imminent danger of death or serious injury to any employee requiring an emergency inspection. Warrants are a necessary and tolerable limitation upon the right to enter upon and inspect commercial premises. Official entry upon commercial property is a technique commonly adopted at all levels of government to enforce a variety of regulatory laws. See v. City of Seattle (supra) at 543. [*25]
It is clear that the statute does not contemplate a forceable entry into any private place for the purpose of conducting an inspection. On the other hand, it is reasonable to expect that in most instances the request to make an inspection will be reasonably and politely done and that the employers will consent to the inspection. In practice this is usually the case. When, as here, the inspection is made in response to a complaint, even though there has been no prior refusal of entry and no reason to expect the denial of admission, the precaution of securing a warrant to conduct a search prior to making the inspection might have been the wiser course of procedure.
Consent may constitute a waiver of Fourth Amendment rights. Zap v. United States, 328 U.S. 624 (1964). Consent to search has been repeatedly recognized as a sufficient ground to waive Fourth Amendment rights. Katz v. United States, 389 U.S. (1967); Davis v. United States, 328 U.S. 582 (1946).
In the case of most routine inspections, there is no compelling urgency to inspect at any particular time or on any particular day. As a practical matter warrants should normally be sought only [*26] after entry is refused or there is another satisfactory reason for securing immediate entry. Camara v. Municipal Court, supra, at 539.
In the case of Strong v. United States, 46 F. 2d 257 (1st Cir. 1931) a criminal action, the accused permitted prohibition agents upon his premises and consented to a search of a part of his property. However, they also searched another building on the premises over his objection. The Court held that the evidence secured from the unauthorized search should be suppressed. The facts in that case are distinguishable from the facts in the instant case so far as the noise complaint is concerned. When consent is given, a warrant is not required. United States v. Hammond Milling Company, 413 F.2d 608 (5th Cir. 1969).
It does not follow that evidence in support of Items 1 and 2 of the citation should be suppressed. Waiver and consent to enter the Ohio River Station to test for excess noise does not invalidate evidence of violations other than the one complained of as long as there was no invasion of any part of the premises without consent. Gullett v. United States, 387 F. 2d 307, 310 (8th Cir. 1967); cert. den. 390 [*27] U.S. 1044.
It is undisputed that the Respondent did not resist admission of the Secretary's compliance officers. As soon as they had identified themselves the company representative sent to meet them by its plant superintendent conducted them willingly and without question throughout all parts of the plant they sought to enter. These facts are sufficient to sustain the burden of proof the Respondent bears ( United States v. Payne, 429 F.2d 169 (9th Cir. 1970)) that consent to enter and make an inspection without a warrant was granted and Fourth Amendment rights had been waived. Where, as here, the Respondent permitted unlimited access, it was not a violation of the Respondent's rights to charge the Respondent with the violations set forth in Item 1 and 2 of the Citation.
There is a conflict in the testimony as to whether the compliance officers informed the Respondent that they were going to make a general inspection. They say they did, Respondent's witnesses say they did not.
The witnesses for both sides appeared to be telling the truth. Obviously, a misunderstanding occurred, but what specific announcement was made by the compliance officers when they arrived [*28] at the Respondent's plant is immaterial. No objection was made to their request for permission to enter and make an inspection nor to their inquiries about the floor hole and the air hose.
The Respondent has waived all objections to a warrantless general inspection. The Respondent's motion to suppress the evidence obtained on the inspection of November 8, 1972, is denied. The admission of the evidence pertaining to Items 1 and 2 of the citation and that part of Item 3 which alleges that the Respondent failed to adequately control noise levels in its Ohio River Station is not barred by the Fourth Amendment to the Constitution.
The Respondent has cited no authority to support its contention that expansion of the violation alleged as Item 3 to include failure to provide protective equipment is a violation of the due process clause of the Constitution nor any authority to support its argument that a warrant was required except the Secretary's instructions to its compliance officers which, of course, are intended to be nothing more than an aid to lay investigators who are required to initiate action after an inspection. There is no contention that expansion of the issue [*29] to include failure to provide protective equipment unfairly deprived the Respondent of an opportunity to prepare its defense. On the contrary, the Respondent was so well informed on this issue, as the record shows, that a number of witnesses were present to testify on the subject. There is nothing in this record to show that there was an absence of proper notice, an opportunity to be heard and fair play. These are the basic elements of due process. Dohany v. Rogers, 281 U.S. 362, 369 (1930); Pearson v. Walling, 138 F. 2d 655; (8th Cir. 1943); Hodgson v. California Stevedore and Ballast Co., Even where a complaint is devoid of notice of a violation of a standard, due process is satisfied by full litigation of the issues, N.L.R.B. v. Johnson, 322 F. 2d 216, 220 (6th Cir. 1963) cert. den. 376 U.S. 951 (1963).
A defect in a citation may be rectified by a complaint. Hodgson v. Intermountain Block and Pipe Corporation, A valid complaint requires only a plain statement of the things claimed to constitute a violation of the Act, N.L.R.B. v. Duncan Foundry, 435 F. 2d 612 (7th [*30] Cir. 1970); 29 C.F.R. 2200.7(d)(1)(i).
The Respondent's objection to the admission of evidence in support of the allegation that there was a failure to provide protective equipment (Tr. 32-40) is construed as a motion to suppress this evidence. The motion is denied.
SUMMARY OF THE EVIDENCE
Testifying for the Secretary were, Gerald Baty, compliance officer; Edward Largent, industrial hygienist and two employees of the Respondent. They were Leo Haller, plant superintendent, and Alvin Garvin who works in the department where the noise levels were said to be excessive.
For the Respondent, there was also Leo Haller. In addition there was testimony by C. E. Laubscher, efficiency supervisor; Ronald G. Rehrman, an industrial engineer who was in charge of gas distribution at the time of conversion; Shelby Lovell, maintenance foreman; George R. Hust, manager of labor relations; and Frank Hinchey, a civil engineer employed by an engineering firm as a project engineer on steam plant construction.
The plant facility involved is known as the Ohio River Station. It was built in 1928. At that time its power source was two 400 pound boilers heated by coal. In 1936 two additional [*31] boilers were put in service. In 1939 the type of fuel utilized was converted to pulverized coal. Two additional boilers were installed in 1942 and two more in 1950, making a total of eight.
In the recent past, the Respondent became conscious of probable violations of local smoke control ordinances, so it was decided that it would be prudent to convert to gas for an energy source. On January 9, 1971, the Ohio River Station was shut down. It was out of service for six months while the conversion was taking place. On July 2, 1971, Number 8 boiler was started; Number 7 came into service on August 5; Number 6 early in September and Number 5 in October (Tr. 180-194). When the first boiler was put back into service on July 2, 1971, the noise was noticeable but not annoying. Gas coming into the plant through a regulator station arrives at approximately 300 to 350 pounds of pressure. It is transmitted through a reducing valve. At this stage the pressure is lowered to 300 pounds and finally, through a series of valves to 27 pounds. The last reducing valve is a three-inch type, expanded up to a 24 inch pipe (Tr. 196).
The design for reducing pressure was prepared by Mr. [*32] Ronald G. Reherman, then supervisor of the Gas Measuring and Service Maintenance Department of the Southern Indiana Gas and Electric Company. After the design was completed, it was submitted to an engineering firm for advice (Tr. 232-238). This firm said, after studying the plans, that the maximum predicted noise level for the regulator station would be from 90 to 95 dBA. This was considered acceptable since the regulator station would be outside the plant and the operators would be inside near the boilers.
When the second boiler was put into service in August 1971 and the electric production was at 40 megawatts, the noise level became bothersome and annoying (Tr. 196). The plant superintendent immediately called in Mr. Reherman for consultation. He also directed Mr. Hust of the personnel department to order a substance known as Swedish wool which is used to muffle noise by inserting it in the ear. It was furnished to the employees about September 9, 1971 (Tr. 197). They also borrowed ten sets of earmuffs from another local industry. They were supplied to those individuals who worked in the high noise area. No written order directing these employees to use ear protection [*33] was issued, but whenever the plant superintendent observed them working without it he directed them to use it. After this was done he never saw anyone working without ear protection. The company subsequently purchased its own earmuffs (Tr. 201).
The two compliance officers, Baty and Largent, when they arrived at the Southern Indiana Gas and Electric Company plant at 2600 Broadway, Evansville, Indiana, presented their credentials to the guard at the gate, told him they had come in response to a safety complaint and that they would like to see someone from management about making an inspection. After the guard made a telephone call, they were met by the Respondent's representative, Laubscher. They again showed their credentials and a complaint signed by a union steward, Lloyd Owen. After admission to the plant, Largent, using a general purpose sound level meter, took measurements in front of the control panels in the boiler room. It was an obvious source of excessive noise. He found that the sound level measurement in three different locations was 97, 99 and 102 dBA (Tr. 106). The Respondent's plant superintendent acknowledged that on October 20, 1971, the company's [*34] records showed that sound level was as high as 103 dBA for as much as 3 hours (Exhibit No. R7, Tr. 164). This was when the plant output was at 70 megawatts.
While they were in the plant, the compliance officer Baty noticed an air compressor with five air lines. He asked Laubscher what was it used for. He was told that it was used by the employees for cleaning purposes. He then asked if the line pressure was 80 to 90 pounds and said that he was told that it was. He estimated that the compressor was approximately 100 feet from the actual air line outlet. It was his opinion that, allowing for a diminishing of pressure between the compressor and the outlet, 100 feet away, there would still be over 30 pounds per square inch of pressure at the nozzle (Tr. 52). He said that there were no gauges on the compressor or on the line (Tr. 78). Laubscher who had told Baty that there was 90 pounds pressure said he had never seen a gauge nor measured the pressure himself (Tr. 218).
Baty admitted that he made no attempt to check the air pressure and that his opinion was based entirely on what he was told by Laubscher. He did not say whether the lines had the type of nozzles which [*35] reduce pressure in the line to less than 30 p.s.i. (Tr. 83).
Baty also testified that while they were in the boiler room he observed two areas where machinery had been removed and plywood had been put over the holes to cover the opening (Tr. 58). A space 8 or 10 inches wide and approximately 6 feet long next to the wall was exposed. He said that he told Laubscher he was not sure whether this type of floor covering was adequate but he did think the hole behind it was a hazard. He noticed, however, that the opening was not in a designated walkway (Tr. 86).
The opening in the floor had been made about the 15th of August during the installation of sheet metal ducts. It was immediately covered with three quarter inch strip of plywood equipped with 2 X 4 cleats on each end so it could not be moved. The plywood was a standard size which did not fit the opening as it would if fabricated for this purpose. There was a 10-inch uncovered area near the wall. A foreman was instructed to put 2 X 10s across that. When Haller, the plant superintendent, passed this area on the same day as the inspection the hole was completely covered. He did not recall ever seeing the opening uncovered [*36] (Tr. 203), even though he passed by as many as once or twice a day (Tr. 204).
DISCUSSION OF THE EVIDENCE
The Respondent has been charged with failure to protect its employees against certain hazards including an opening in the floor next to a wall in an obscure location not a designated walkway, and possible ill effects from exposure to air pressure in excess of 30 psi. Both of these allegations, even if established by the evidence, are of a minor nature. They are not serious violations as defined in Section 17(k) of the Act. The major issue in the instant case is an allegation that the Respondent permitted its employees to be subjected to noise levels which might, in the course of time, cause serious loss of hearing or deafness. This indeed is a serious charge.
If the Respondent wantonly and recklessly operated its electrical power plant in such a matter as to cause its employees to lose their sense of hearing, to have impaired hearing or, if the excess noise levels were inadvertly created but were negligently and carelessly disregarded, the Respondent should be subjected to the maximum accountability the Act contemplates for such inconsiderate treatment of its workers. [*37] However, the evidence in the instant case does not show that either hypothesis coincides with the facts.
The Respondent carefully planned and designed the conversion of its plant from coal to gas with full knowledge that transmission of gas through production valves would cause noise. Preliminary estimates based upon their own engineers' studies and the advice received from consulting engineers resulted in the conclusion that there would be no noise levels in excess of 90 dBA in the area where the boilers are located. However, before the plant was returned to full capacity, at least two or three months before the Secretary's compliance officers made their inspection, it became apparent that noise was going to be a problem and immediate steps to alleviate this situation were taken. Protective equipment was provided. The engineering consulting firms were again consulted. The Respondent concluded that the installation of silencers would be required but the engineering studies took time and the silencers had to be custom made. Fabrication could not have been completed by the time the plant was inspected on November 8, 1971.
FINDINGS OF FACT
1. The Respondent is and [*38] was at all times relevant to the issues in the instant case an Indiana corporation engaged in the production and distribution of gas and electric energy in southwest Indiana.
2. The Respondent had control over the plant and equipment at its Ohio River Station at all times at issue herein.
3. No injuries have resulted from the alleged violations.
4. There is no record of previous violations.
5. The Respondent's total operating revenues for the year 1971 were in excess of $49,000,000.00. Its stockholders' equity is in excess of $65,000,000. Its average daily number of employees is 43.
6. The Complainant has failed to sustain the burden of proof that the Respondent permitted its employees to use compressed air for cleaning in excess of 30 psi of pressure in the machine shop as alleged in Item 1 of the citation.
7. The Complainant has failed to sustain the burden of proof that the Respondent exposed its employees to unguarded floor holes as alleged in Item 2 of the citation.
8. The Respondent has admitted that noise levels in excess of 90 dBA existed from September 1971 through November 8, 1971, as alleged in Item 3 of the citation (Tr. 28).
9. The allegation in Item [*39] 3 of the complaint that the Respondent failed to provide personal protective equipment and to administer an effective hearing conservation program is based upon evidence secured during the inspection of the Respondent's Ohio River Station on November 8, 1971. It constitutes a short and plain statement in support of the citation issued on January 6, 1972, as required by the Rules, 29 C.F.R. 2200.7(d)(1).
10. The Respondent, on or about September 9, 1971, as soon as it became apparent that sound levels would exceed the estimates suggested by engineering designs for the plant conversion to gas and before any complaint was received by the Secretary or any investigation was made, provided employees in the high noise level area with Swedish wool to insert in their ears to protect them while further engineering studies were made (Tr. 171).
11. The Respondent did not issue an official written order to its employees directing them to use protective equipment on or before November 8, 1971 (Tr. 122, 172), but supervisors at some undetermined time after Swedish wool was issued, verbally ordered employees to use protective equipment (Tr. 201, 253).
12. The Respondent borrowed [*40] ear muffs from another local industry shortly after Swedish wool was secured. They were made available to employees in the high noise area. A purchase order for ear muffs was issued just a few days before the inspection. No written order to wear muffs was issued prior to November 8, 1971 (Tr. 172).
13. It is established by credible expert opinion that some of the feasible methods of reducing noise levels include sound proof booths, insulation and silencers (Tr. 111), but sound proof booths would not have been a satisfactory method in the Ohio River Station because the duties of the employees in the boiler room required them to be mobile (Tr. 205).
14. It is established that insulation and silencers could reduce the noise levels at the Ohio River Station (Tr. 170). Insulation material was ordered in May of 1972 and installed in June 1972 (Tr. 206-A). An order for a silencer was placed in November 1971 (Tr. 245). It was specially designed and manufactured for the Respondent (Tr. 245). It was not delivered until June 1972 (Tr. 245). Engineering studies which preceded the purchase order for a silencer lasted about two months (Tr. 243, 244, 245).
CONCLUSIONS OF LAW [*41]
1. The Respondent is, and was at all times relevant to the issues in this proceeding, an employer within the meaning of the Act and subject to the jurisdiction of this Commission.
2. The Respondent had the right, under the provisions of the Fourth Amendment to the Constitution of the United States, to demand a warrant before admitting the Complainant's compliance officers to the Ohio River Station for inspection on November 8, 1971.
3. The Respondent consciously, willingly, and without objection, permitted the Complainant's compliance officers to inspect its entire plant including areas not involved in the noise complaint. By doing so it not only waived its right to refuse entry without a warrant under the Fourth Amendment to the area of the Ohio River Station where there was excess noise, but also waived its right to refuse entry without a warrant for a general inspection of other areas of the plant.
4. The Complainant has failed to sustain the burden of proof that the Respondent violated any of the safety and health standards set forth in Items 1 and 2 of the citation: 29 C.F.R. 1910.242(b); 29 C.F.R. 1910.23(a)(7) and (e)(i).
5. The Respondent, on November 8, 1971, and [*42] for a period of no less than 4 weeks prior thereto subjected its employees working in its boiler room at its Ohio River Station to noise levels in excess of the limits prescribed by 29 C.F.R. 1910.95(b) which constitutes a violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970.
6. The allegation in paragraph IV(a)(3) of the complaint that the Respondent violated 29 C.F.R. 1910.95(a) and 29 C.F.R. 1910.95(b)(1) and (3) is a lawful and proper averment of a violation based upon facts ascertained by an inspection on November 8, 1971. It does not constitute a new and additional charge not mentioned in the citation but is instead a more specific and definitive specification of the facts derived from the November 8, 1971, investigation which complies with the requirements of 29 C.F.R. 2200.7(d)(1). There was no denial of due process of law under the Fifth Amendment to the Constitution of the United States.
7. The Respondent, by failing to require its employees to wear protective equipment after it was furnished, violated the provisions of 29 C.F.R. 1910.95(a) and 29 C.F.R. 1910.95(b)(1) and (3); Hodgson v. Pacific Food Products Co., Inc., OSHRC [*43] Docket No. 158.
8. The Respondent, by seeking qualified expert advice on plant design prior to making structural changes in its Ohio River Station; by promptly providing protective equipment as soon as it became apparent that estimates of noise levels were erroneous; and by thereafter continuing its engineering studies followed by installation of insulating material and a silencer; showed good faith and concern for its employees' health.
9. The Respondent's good faith as shown by its prompt attention to abatement of the violation at an expense much greater than the proposed penalty of $75.00 is an adequate basis upon which to find that no penalty should be assessed for the violation alleged in Item 3 of the citation. Hodgson v. General Meat Co., Inc.
ORDER
Upon consideration of the record and the foregoing findings and conclusions it is hereby ordered that:
1. The citation and proposed penalty for alleged violation of 29 C.F.R. 242(b) and 29 C.F.R. 1910.23(a)(8), Items 1 and 2 of the citation be, and the same are, vacated.
2. The citation and allegation of violation of 29 C.F.R. 1910.95, Item 3 of the citation should be, and hereby [*44] is, affirmed.
3. The proposed penalty of $75.00 for the aforementioned Item 3 of the citation is vacated.