CYPRUS MINES CORPORATION, d/b/a CYPRUS WIRE AND CABLE COMPANY

OSHRC Docket No. 76-616

Occupational Safety and Health Review Commission

December 17, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

William L. Broad, for the employer

OPINION:

DECISION

BY THE COMMISSION:

Cyprus Mines Corporation operates a wire and cable plant in Rome, N.Y. After a compliance safety and health officer inspected Cyprus' plant on October 31, November 3 and November 4, 1975, the Secretary of Labor issued a citation alleging that Cyprus had violated 29 U.S.C. 654(a)(2), section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"), by failing to comply with the occupational noise standard at 29 C.F.R. 1910.95(b)(1). n1 The citation, as clarified in the complaint, alleged that on November 4, 1975, Cyprus employees in two buildings at the plant had been exposed to sound levels in excess of those permitted by the standard and that feasible administrative or engineering controls had not been used. No penalty was proposed.

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n1 This standard provides in part:

1910.95 Occupational noise exposure.

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(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.

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Table G-16 -- PERMISSIBLE NOISE EXPOSURES

Sound level

Duration per day, hours

dBA 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

(Footnote omitted).

[*2]

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Administrative Law Judge Alfieri held a hearing and found that Cyprus was not in violation in the Watson stranding machine area in Building 19 of its plant. He found that Cyprus was in violation in two areas of Building 16 but was not in violation in a third area of that building. The Secretary petitioned for review of that portion of the judge's decision finding no violation in the Watson stranding machine area in Building 19, and Cyprus petitioned for review of that portion of the decision finding a violation in the Vaughn Fine Wire area of Building 16. Commissioner Cleary granted both petitions. n2

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n2 Former Commissioner Moran also directed review "for error." Neither party has challenged the judge's disposition of the citation with respect to the Bartell-Watson area or the Cook-Butt area of Building 16. Mr. Moran's general direction for review did not specify any issues, and the parties have not raised issues other than those specified by Commissioner Cleary. Inasmuch as we find no compelling public interest that would warrant review of issues not raised by the parties, such issues will not be considered on review. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976). The unreviewed portions of the decision are accorded the significance of an unreviewed judge's decision. See Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir. May 17, 1976).

[*3]

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I. BUILDING 19 - WATSON STRANDERS

A

Two stranding machines manufactured by the Watson Machine Company were in Building 19. One was a seven-strand machine; the other was a twelve-strand machine. The machines were separated by an aisle about fifteen feet wide. On November 3, 1975, there was one employee working in the area, the machine operator. The compliance officer took noise level readings with two different instruments. He used a sound level meter to take readings in different locations around the work area once during each hour of the eight-hour workshift. The readings ranged from 101 to 103 dBA. The compliance officer also fastened a noise dosimeter near the ear of the machine operator to determine the amount of noise to which the operator was exposed during his entire shift. The dosimeter readings showed that the operator, who was not using any protective equipment, was exposed to noise levels equal to 459% of the permissible levels. n3

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n3 Cyprus has not argued that employees were not shown to have been exposed to excessive noise.

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After Cyprus contested the citation, the compliance officer returned to the plant with Norman L. Meyerson, an acoustical engineering expert, to determine what feasible engineering or administrative controls could be implemented to reduce the noise in the cited areas. In the time between the inspection by the compliance officer and the visit by Mr. Meyerson, Cyprus had had the seven-strand machine fixed because it was badly in need of repair and was ready to break down. n4 The repairs cost approximately $32,000 and would have been necessary whether there had been a citation or not. As a result of the repairs, the noise produced by the seven-strand machine was reduced so that sound level readings taken with the twelve-strand machine off ranged from 80 to 87 dBA. With both machines running, the noise levels ranged from 85.5 dBA to 94 dBA.

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n4 Mr. Meyerson's written report recited that a Cyprus safety administrator had stated that the repairs had been made to reduce noise levels. At the hearing, however, the vice president and general manager of Cyprus Wire testified that the repairs were made because the machine was ready to break down. We find the testimony of the Cyprus official more reliable than the hearsay in Mr. Meyerson's report. We therefore find that the machine repairs were necessary regardless of the noise it produced.

[*5]

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The Secretary's expert testified that similar repairs to the twelve-strand machine would bring noise in the area down to Table G-16 levels. Cyprus presented testimony that the cost of repairing the twelve-strand machine would be at least $50,000 to $60,000. If the gearbox needed repair, the added cost would be $10,000 to $20,000; the total cost of the repairs might therefore range from $50,000 to $80,000. Cyprus argued to the judge that the reduction in noise levels resulting from the repairs meant that the violation had been cured and no violation should be found in Building 19.

B

In his decision, Judge Alfieri found that the operator was exposed to noise levels of 101-103 dBA at the time of the original inspection but that, at the second inspection, the noise made by the repaired seven-strand machine was below the level permitted by the standard for an eight-hour exposure. Judge Alfieri found that because the repairs to the seven-strand machine lowered the noise emanating from it alone to below 90 dBA over 8 hours, "[i]t follows therefrom that there are feasible engineering controls available [*6] for the Watson strander machines in building #19." In considering the costs of the repairs, the judge merely noted the estimated cost of repairing the twelve-strand machine and that Cyprus does $450,000,000 volume of business annually. He concluded that the cost "does not render the proven controls economically infeasible."

The judge then focussed on the question of whether the violative condition continued to exist after the repairs. Relying on the readings taken during the second visit and on evidence that one machine was often shut down while the operator performed his duties and that the operator is away from the machines for part of his shift, the judge concluded that the Secretary had not proved that the machine operator was then being exposed to an excessive level of noise in this area. He therefore vacated the citation insofar as it pertained to this area.

C

In his petition for review, the Secretary argued that the evidence clearly established the existence of a violation on the day of the compliance officer's first inspection of Building 19 and that it was error for the judge to vacate the citation on the ground that a violation did not continue to exist. The Secretary [*7] contends that the evidence as to the reduction in noise resulting from the repairs is proof only that feasible engineering controls exist to reduce noise in the cited area. He argues that it is inconsistent with the purposes of the Act to permit corrective measures taken after the inspection to negate the existence of the violation alleged in the citation. The Secretary urges that the evidence clearly establishes that the employee was exposed to excessive levels of noise on the date of the initial inspection and that the Secretary is not required to show that this overexposure continued to exist.

Cyprus, on the other hand, argues that the judge's finding was correct and should be affirmed. Cyprus argues that evidence as to the feasibility of an engineering control must relate to the character and intensity of the noise found by the expert during his later visit to the plant.

D

We agree with the Secretary that the judge erred in vacating the citation on the ground that the violation did not continue. The question is whether the cited condition existed on the date the violation is alleged to have occurred. Abatement of a violative condition after a citation has been issued does [*8] not negate or excuse an employer's prior failure to comply with the requirements of the Act. Gannett Rochester Newspaper Corp., 81 OSAHRC 35/A2, 9 BNA OSHC 1590, 1981 CCH OSHD P25,323 (No. 6352, 1981), and cases cited. Although the Secretary himself introduced the evidence of later reductions in noise levels, that evidence was introduced for the purpose of establishing the existence of feasible engineering controls. There is no basis for concluding that the parties impliedly consented under Fed. R. Civ. P. 15(b) to try whether a violation existed only on the date of the second visit.

Inasmuch as it is uncontested that the operator was exposed to excessive noise levels on the date that the violation is alleged to have occurred, the remaining question is whether the proposed engineering controls, repairs to the machines, were feasible within the meaning of section 1910.95(b)(1). We find that the repairs to the seven-strand machine are feasible engineering controls, both technologically and economically.

The Commission has recently considered the meaning of the term "feasible" in light of American Textile Manufacturers Institute, Ind. v. Donovan, 452 U.S. 490 (1981), in [*9] which the Supreme Court held that "feasible" means "achievable" or "capable of being done." In Sun Ship, Inc., OSHRC No. 16118, issued this day, the Commission held that where technologically feasible controls will significantly reduce noise levels, the Secretary may show economic feasibility by showing either that the cost of engineering and administrative controls will not threaten the cited employer's long-term profitability and competitiveness, or that the employer's inability to afford the cost of controls results from the employer's lagging behind its industry in providing safety and health protection for employees. Sun Ship overruled 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. April 26, 1977) ("Continental Can"), to the extent that Continental Can had required that costs of controls be weighed against their benefits.

The analysis of the feasibility of engineering controls applied by the judge in this case is inconsistent with the current Commission precedent. We have therefore reviewed the evidence and find n5 that, as to the seven-strand machine that was [*10] repaired, the engineering controls suggested by the Secretary, repairs to the machine, were feasible steps. The repairs were obviously achievable. The reduction of noise levels -- by at least 7 dBA -- was significant. Inasmuch as the repairs to the seven-strand machine did not add any cost that Cyprus otherwise would not have incurred, the added costs for noise abatement were zero. Accordingly, we find that with respect to the seven-strand machine, there were feasible engineering controls that could have been used and there was a violation in the Watson Strander area of Building 19 at the time alleged in the citation and complaint.

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n5 The Commission has the authority to make findings of fact itself, independent of the administrative law judge. Butler Lime & Cement Co., 79 OSAHRC 103/D12, 7 BNA OSHC 1973, 1979 CCH OSHD P24,091 (No. 855, 1979), rev'd on another ground, 658 F.2d 544 (7th Cir. 1981).

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It is unnecessary here to determine whether repairs to the twelve-strand machine are required. The repairs [*11] to the seven-strander reduced noise levels in the area to 85.5 to 94 dBA when both machines were operating. Inasmuch as the employee working in the area moved around during the day, it is uncertain whether any further measures would be necessary to reduce his noise exposure. We also note that the citation and complaint alleged that there was excessive noise in the Watson Strander area and that Cyprus had not instituted feasible engineering or administrative controls in that area. The citation and complaint did not purport to require abatement of any particular sort or require that abatement measures be instituted on both machines. Although at the hearing the Secretary focussed on repairing the seven- and twelves-stranders because he was required to establish that there were feasible engineering controls available, Cyprus is not required to adopt the abatement method suggested by the Secretary, even one found feasible by the Commission; it may satisfy its duty to comply with the standard by using any feasible method that is appropriate to abate the violation. Cf. General Electric Co., OSHRC No. 79-504, slip op. at 16, n.6 (Sept. 30, 1982) (section 5(a)(1) case requires [*12] use of any feasible means or a combination of feasible means); Kelly Springfield Tire Co., 82 OSAHRC    , 10 BNA OSHC 1970, 1975 n.5, 1982 CCH OSHD P26,223, p. 33,114 n.5 (No. 78-4555, 1982)(same); Ted Wilkerson, Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 1981 CCH OSHD P25,551 (No. 13390, 1981) (section 5(a)(1) case requires proof of feasible abatement; employer allowed to show it used other abatement method); Brown & Root, Inc., 80 OSAHRC 97/A2, 8 BNA OSHC 2140, 1980 CCH OSHD P24,853 (No. 76-1296, 1980)(same). For these reasons, it is unnecessary in this particular case to go beyond our finding that the repairs to the seven-strander were feasible and significantly reduced the noise.

II. BUILDING 16 -- VAUGHN FINE WIRE AREA

A

Cyprus does not deny that there was excessive noise in the Vaughn Fine Wire area but contends that the Secretary has not proved that the engineering controls proposed are feasible. The Vaughn Fine Wire area occupies about 3,000 square feet on the second floor of Building 16 and contains twenty Vaughn machines in four rows containing five machines each. There are two aisles with five machines on each side of the aisle, so that ten machines [*13] face each aisle. The machines in the two inner rows are back to back very close to each other, and the aisles from which employees work are between the outer rows and the inner rows. Two machine operators work in this area, one operator for each aisle. In addition, there are oilers and maintenance workers who also work in this area.

The machines pull wire from large supply spools through dies and feed the wire onto smaller reels or spools. Sometimes all ten machines on an aisle will be in operation at one time, but often only seven or eight will be operating. The operators must replace the empty large supply reels and remove and replace the full take-up reels. The supply reels weigh approximately 500 pounds and the finished reels are 30 to 40 pounds. The operators must check the take-up reels to see that they are winding properly and must make adjustments to the dies and the machines. Cyprus' vice president of manufacturing estimated that one operator would need to have access to the machines about 500 times in an eight-hour shift.

The compliance officer testified that during the inspection he recorded readings of 96 and 97 dBA once each hour throughout the 8-hour shift and [*14] that the dosimeter readings indicated that the employees were exposed to 283% of the permissible noise levels. The Secretary's expert witness, Mr. Meyerson, stated that he measured noise levels of 98 dBA while he was standing in the aisle among four of the machines. Only three of the machines were operating at the time he took that measurement.

Mr. Meyerson stated that one way to decrease the noise levels would be to spread out the machines so that the noise was not concentrated in a small area. Because of space limitations, however, he said this solution was not possible. He therefore suggested that the machines be enclosed with sound-absorptive materials. In each row, the machines are separated into a group of two and a group of three. Because the middle rows are so close, they constitute one group of four machines and another group of six. Mr. Meyerson recommended that each group in the outer aisles be enclosed and that each group in the middle be enclosed, with a double sided sound-absorptive wall between the backs of the machines in the two middle rows. In order to permit access to the machines, he recommended that at the front of each machine the enclosures have doors [*15] that would slide either horizontally or vertically. He recommended windows in the doors to allow visual checking of the machines. Because the machines produce heat, Mr. Meyerson suggested that there not be tops on the enclosures. He testified that the enclosures could be made of readily-available panels at nominal cost, and that they would reduce the noise by at least 15 decibels. He testified that enclosures of this type are used in textile plants.

Mr. Barrett, Cyprus' vice president of manufacturing, testified on behalf of Cyprus. Mr. Barrett holds a bachelor's degree in chemical engineering and a bachelor's degree in business administration. He testified that the machines in the center groups were too close together to permit the wall in the middle of the proposed enclosures, and he expressed the opinion that the wall would make necessary maintenance impossible. Mr. Barrett stated that he believed the proposed enclosures were not feasible because they would limit access to the machines and slow down or inconvenience the operators and employees performing maintenance on the machines. He testified that the enclosures would require the machines to be shut down for some operations, [*16] thereby reducing productivity. Mr. Meyerson testified in rebuttal that the wall need not be permanent or solid but could be made of removable modular panels with some space beneath and between them, so they need not interfere with maintenance or repairs.

Mr. Barrett stated that he believed that the enclosures would not really reduce employee exposure to noise because the employees would constantly have to open the doors to work on the machines and would then be exposed to the full force of the noise. On rebuttal, Mr. Meyerson testified that one absorptive enclosures would reduce the amount of noise the employee would be exposed to even if the employee had to open the door to perform his duties and that the noise from machines in other enclosures would be reduced. His written report stated that, even with the door open, employees "will be exposed to only a fraction of the noise now impacting [them]."

The Secretary's evidence was that the cost of the enclosures would be "nominal" and that the enclosures could be installed on weekends or other times when the machines would be off. The Secretary offered no estimated cost of enclosing the Vaughn machines, and Cyprus presented no [*17] monetary figures for the costs of constructing the enclosures or estimates as to how much its production might be reduced if the enclosures were installed. Cyprus also presented testimony that doors opening into the aisle might pose new dangers and obstruct both access to adjacent machines and the aisles.

B

In his decision, Judge Alfieri noted that although Cyprus did not deny that its employees were exposed to noise levels above those specified in Table G-16, Cyprus asserted that the Secretary had not proved the feasibility of the controls because he had not shown that the controls would bring the noise within permissible limits. The judge rejected Cyprus' argument, stating that the engineering controls need not reduce the noise to the levels permitted by the standard in order to be considered feasible. He found that the enclosures were a feasible engineering control because they could be fabricated "from readily available materials at economical cost," and would reduce the noise by 10 to 15 dBA. He stated that "it is not shown that the anticipated construction problems are insurmountable." The judge mentioned an engineering report prepared for Cyprus that was introduced into [*18] evidence by the Secretary over Cyprus' objection. That report concluded that partial enclosure would bring the operator's exposure to noise within permissible levels. Addressing the adverse effect of the enclosures on Cyprus' production, the judge found that there was not sufficient evidence to find that the engineering controls were "infeasible." He found that Cyprus' argument that the enclosures might themselves cause a hazard was not substantiated. The judge found a violation in this location but assessed no penalty. He found also that, because experimentation with the proposed controls was necessary, an abatement period of 2 years, six months was reasonable, instead of the one year period provided in the citation.

C

Cyprus petitioned for review of this portion of the judge's decision, maintaining that the evidence establishes that the engineering controls are not feasible. Cyprus argued that its evidence that the enclosures would create operational and maintenance problems outweighed the Secretary's evidence. On review, Cyprus argues that the Secretary's proposal for enclosures represents "the completely theoretical nature of his approach." Cyprus argues that, because [*19] the operators would have to open the doors to work on the machines approximately 500 times a shift, they would be exposed to excessive noise levels anyway. Therefore, reasons Cyprus, when the duties of the employee are taken into consideration, the Secretary has not proved that the enclosures would make a significant reduction in the level of the employee's exposure. Cyprus also contends that the enclosures are not feasible because they would cause a reduction in productivity and would interfere with maintenance on the machines.

D

We do not agree with Cyprus argument that, because doors would often be open, the Secretary failed to show that the enclosures were feasible. Cyprus argues that the operators would therefore be exposed to excessive noise even with the enclosures. The enclosures would be made of noise absorbent materials, and the Secretary's expert testified that the noise levels would be reduced even with the door open. As the Secretary also points out, the other enclosures would absorb the noise from the other machines even while the door to one booth was open. Even if the noise level would be above the level permitted, the enclosures need not reduce noise to permissible [*20] levels in order to be feasible; they need only make a significant reduction in the existing noise levels. Sun Ship, slip op. at 11 n.10, and cases cited.

We agree with the judge's finding that the noise-absorbent enclosures were a technologically feasible engineering control. Cyprus argues, and Mr. Barrett testified, that the motors of the machines in the center rows are too close together for the center wall to fit. Mr. Meyerson testified, however, that, because the purpose of the enclosures is to absorb the noise rather than to wholly contain it, the walls need not be solid, and that there could therefore be openings in the wall to accommodate the motors. We also reject Cyprus' argument that the enclosures would make it impossible to do repairs or servicing on the Vaughn machines; Cyprus points, for example, to Mr. Meyerson's testimony that, with one door open, access to the adjacent machine might be obstructed. Mr. Meyerson testified, however, that because the enclosures could be constructed of removable panels, one could gain access to perform maintenance. Finally, Cyprus argues that a door could be accidentally closed on an employee, causing him to be injured. Judge [*21] Alfieri correctly found that the evidence on this issue was highly speculative and gave it little weight. n6

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n6 We acknowledge that the use of enclosures with doors would not be entirely free of difficulty. For example, overhead garage-type doors could not be used in part of the area because several machines have overhead mezzanine grills that would obstruct the doors. The sliding doors would obstruct aisle traffic when they were open. Despite these difficulties, we are convinced that, on the whole, the booths are feasible.

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Cyprus argues that the enclosures were not proved to be feasible because they would slow maintenance work on the machines, cause loss of time, and reduce production. These factors may be considered in determining whether the proposed noise controls are economically feasible. See Sun Ship, slip op. at 19.

When this case was tried, the Commission had not yet held, first in Continental Can and recently in Sun Ship, that the cost of engineering controls is relevant to their feasibility. [*22] The parties here did not litigate the economic aspects of feasibility under the approach of Sun Ship. The evidence on the point is sparse. The Secretary's expert testified that the noise-absorbent panels were commercially available at "nominal" cast, but he gave no estimate of the cost of the materials or of the cost of erecting the six enclosures required. Although Cyprus presented testimony that the enclosures would present a "nightmare" for the operators and for employees performing maintenance on the machines, this testimony does not enable us to determine how much time would be lost or how much production would be reduced. There is no evidence in the record as to Cyprus' ability to absorb the direct or indirect costs of the engineering controls. We therefore remand this case for the parties to present further evidence as to the anticipated costs, both direct and indirect, of the proposed noise abatement controls and for the application of our decision in Sun Ship.

III.

One last issue remains. At the hearing, the Secretary introduced into evidence portions of a report of a noise study of Cyprus' plant done in 1974 by an engineering firm hired by Cyprus. The report [*23] recommended that the operator desk in the Vaughn Fine Wire area be enclosed or that the machines be partially enclosed. Cyprus objected to the admission of the report on the ground that the study was not performed by Cyprus and there was no evidence that the report had ever been adopted or acted on by Cyprus. The judge admitted it into evidence and considered it in determining the technological feasibility of controls. On review Cyprus has renewed its objection to the report, relying on a ruling of an administrative law judge in an earlier case in which Cyprus was a party involving a different area of the same plant. In the earlier case, the judge sustained Cyprus's objection to the report.

Cyprus' argument that the report was not written or adopted by Cyprus raises a hearsay objection. See Fed. R. Evid. 801(d)(2)(A) and (B) (statements of or adopted by a party). Hearsay is admissible in administrative proceedings. Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHD P24,006 (No. 14907, 1979). We therefore conclude that Judge Alfieri properly admitted the engineering report.

Accordingly, that portion of the judge's decision dealing with the Watson Stranders [*24] in Building 19 is reversed, and the portion of the citation alleging a violation in that area is affirmed. We assess no penalty. With respect to the Vaughn Fine Wire Area in Building 16, this case is remanded for further proceedings consistent with this decision.

SO ORDERED.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

I respectfully dissent. For the reasons stated in my dissenting opinion in Sun Ship, Inc., No. 16118, issued this day, the requirement in section 1910.95(b)(1) that feasible administrative or engineering controls be utilized is invalid. I would therefore vacate the citation.