CONSOLIDATED RAIL CORPORATION

OSHRC Docket No. 78-2546

Occupational Safety and Health Review Commission

July 30, 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

John R. Jenchura, Consolidated Rail Corporation, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Foster Furcolo is before the Commission pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision, Judge Furcolo found that the Respondent, Consolidated Rail Corporation ("Conrail"), had violated section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), by failing to comply with several safety and health standards. Conrail petitioned for review of the judge's decision, and Commissioner Cottine and former Commissioner Barnako directed review of the issues raised in Conrail's petition. We affirm Judge Furcolo's decision.

I

A

On April 25, 1978, a compliance officer of the Occupational Safety and Health Administration ("OSHA") conducted an inspection of Conrail's diesel facility in Selkirk, New York. During the inspection, the compliance officer observed a Conrail employee in the diesel engine shop performing [*2] maintenance work on a diesel locomotive engine. The engine was running and the employee was not wearing any hearing protection. The compliance officer determined, and Conrail does not dispute, that the employee was exposed to approximately twice the allowable noise under 29 C.F.R. 1910.95(a). n1 Also, the employee testified that he had experienced hearing loss and headaches. The employee had asked Conrail for some hearing protection during the several months preceding the inspection but Conrail had not provided him with the protection. The Secretary charged Conrail with failure to comply with the occupational noise exposure standard at 29 C.F.R. 1910.95(a) by not providing the employee with personal protective equipment. n2 The violation was alleged to be serious in nature.

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n1 29 C.F.R. 1910.95(a) provides in pertinent part:

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. . . .

Table G-16 prescribes the number of hours an employee may be exposed to particular noise levels.

n2 Pursuant 29 C.F.R. 1910.95(b)(1), employers must use feasible engineering or administrative controls to protect their employees against excessive noise. Only if such controls are not sufficient to achieve full compliance with the levels of Table G-16 may personal protective equipment be used as a permanent means of protection. See Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD P24,555 (No. 76-222, 1980). In this case, however, the Secretary does not allege that Conrail failed to implement feasible engineering or administrative controls. His allegation that Conrail violated 1910.95(a) is based solely on Conrail's failure to provide personal protective equipment to the employee.

[*3]

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B

At the hearing, Conrail stipulated that its employee was exposed to noise in excess of that permitted by OSHA's occupational noise exposure standard and that, if the standard applied to the cited working condition, it violated the standard. The parties also stipulated that if a violation was found, a $300 penalty would be appropriate. However, Conrail argued that OSHA authority over that working condition had been preempted under section 4(b)(1) of the Act n3 because the Environmental Protection Agency ("EPA") and the Department of Transportation ("DOT"), through the Federal Railroad Administration ("FRA"), had exercised statutory authority to regulate noise from locomotives under the Noise Control Act of 1972, 42 U.S.C. 4901-18 ("Noise Control Act"). Conrail relied on Railroad Noise Emission Standards promulgated by the EPA and published at 40 C.F.R. Part 201, particularly a standard at 40 C.F.R. 201.11 establishing a noise emission standard for locomotives operating under stationary conditions. Conrail further relied on FRA regulations, published at 49 C.F.R. Part 210, prescribing the means [*4] of compliance with the EPA standards.

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n3 Section 4(b)(1), 29 U.S.C. 653(b)(1), provides in pertinent part:

Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

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The Secretary argued that OSHA's authority was not preempted because the EPA and FRA regulations on which Conrail relied were not intended to protect the health of railroad workers. The Secretary contended that a section 4(b)(1) exemption only arises when regulations of another agency have as a policy or purpose the protection of employees. Judge Furcolo agreed with the Secretary's reasoning and found that Conrail had violated section 1910.95(a).

On review, the parties make the same arguments they made before the judge. We conclude that Judge Furcolo properly concluded that the cited working condition was not exempt from the Act.

C

Two questions are relevant in any [*5] section 4(b)(1) case: (1) does an agency other than OSHA have the statutory authority to regulate the working conditions affecting the health and safety of certain workers, and (2) has the other agency exercised its statutory authority in such a manner as to exempt the cited working conditon from the Act. Northwest Airlines, Inc., 80 OSAHRC 87/B5, 8 BNA OSHC 1982, 1980 CCH OSHD P24,751 (No. 13649, 1980), appeals dismissed, Nos. 80-4218 and 80-4222 (2d Cir. Feb. 18 and March 31, 1981).

In order to give rise to a section 4(b)(1) exemption, a statute need not be directed exclusively at the safety and health of employees. It is sufficient if the statute is directed at the protection of public safety and health, and employees directly receive the protection the statute is intended to provide. Northwest Airlines, Inc., 8 BNA OSHC at 1987, 1980 CCH OSHD at p. 30,485; Texas Eastern Transmission Corp., 75 OSAHRC 88/D9, 3 BNA OSHC 1601, 1975-76 CCH OSHD P20,092 (No. 4091, 1975).

The Noise Control Act is this type of statute. In enacting the Noise Control Act, Congress was concerned with the adverse impact of excessive noise on the general public. In a section of the [*6] statute entitled "Congressional findings and statement of policy," Congress stated:

(1) that inadequately controlled noise presents a growing danger to the health and welfare of the Nation's population, particularly in urban areas;

(2) that the major sources of noise include transportation vehicles and equipment, machinery, appliances, and other products in commerce; and

(3) that, while primary responsibility for control of noise rests with State and local governments, Federal action is essential to deal with major noise sources in commerce control of which require national uniformity of treatment.

(b) The Congress declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare. To that end, it is the purpose of this chapter to establish a means for effective coordination of Federal research and activities in noise control, to authorize the establishment of Federal noise emission standards for products distributed in commerce, and to provide information to the public respecting the noise emission and noise reduction characteristics of such products.

42 U.S.C. 4901.

The legislative history [*7] of the Noise Control Act demonstrates that Congress was concerned with the effects of excessive noise on workers as well as other members of the public. In discussing the adverse effects of noise, the Senate Public Works Committee stated:

The individual's perception of this process belies its true impact on the delicate mechanism of hearing. Whether the individual is an industrial worker or a member of a hard-rock band, hearing ability following temporary hearing loss due to noise exposure, seemingly returns to normal after a day or so of rest, suggesting to the unwary victim that no permanent damage was incurred.

S. Rep. No. 92-1160, 92 Cong., 2d Sess. (1972), reprinted in 3 U.S. Code Cong. and Adm. News (1972) at p. 4656. The Committee also expressed concern that, "[o]ne study of workers showed men working in noisy conditions to be more aggressive, distrustful and even paranoiac than similar workers in a quieter setting." Id. at 4656-57. In sum, these references demonstrate that Congress intended workers to be within the class of persons the statute would benefit.

In order to implement the Noise Control Act, Congress authorized the EPA to establish noise emission [*8] standards for a variety of sources, including products distributed in commerce, n4 aircraft, n5 and railroad equipment. n6 With regard to railroad operations, the Secretary of Transportation was authorized to promulgate and enforce regulations to insure compliance with the EPA's noise emissions standards. n7 The EPA and FRA rules on which Conrail relies were promulgated pursuant to this authority. We conclude, however, that those rules do not regulate the working condition for which Conrail has been cited in this case and therefore do not exempt that working condition from the operation of the Occupational Safety and Health Act.

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n4 42 U.S.C. 4905.

n5 42 U.S.C. 4906.

n6 42 U.S.C. 4916(a).

n7 42 U.S.C. 4916(b).

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The standards that EPA is authorized to promulgate with respect to railroad operations are solely emission standards for equipment. Cf. Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978) (EPA cannot regulate work practices under statutory authority authorizing it to establish emission [*9] standards). DOT is empowered to prescribe the manner in which employers in the railroad industry must comply with the EPA emission standards, and if any regulation of working conditions occurs under the Noise Control Act it must result from the FRA regulations promulgated pursuant to the authority granted DOT.

II

Both Commissioners Cleary and Cottine agree that the EPA and FRA regulations, in combination, limit the noise that railroad equipment may generate. The legislative history of the FRA regulations indicates that the FRA did not intend its regulations to protect employees under circumstances like those present in this case. As the FRA stated in the preamble to the promulgation of the regulations at 49 C.F.R. Part 210:

One commenter criticized the EPA standards themselves, stating that they are too high to protect employees from noise related injury. The commenter also stated that there are many sources of railroad noise that might affect an employee's health that are not covered by the EPA standards. The commenters requested that FRA promulgate noise emission standards to protect employees.

The commenter's request is not within the scope of this proceeding. Further [*10] related rulemaking could be undertaken in the future, depending upon the nature of any evidence that particular noise emissions are a serious safety problem.

42 Fed. Reg. 42343, 42349 (1977).

A

Commissioner Cleary would note that the Secretary seeks to require Conrail to protect its employee against excessive noise by use of personal protective equipment, not to reduce the noise produced by its locomotives. Since the EPA and FRA regulations only govern the noise emitted by Conrail's locomotives and do not address the question of personal protective equipment, the working condition covered by the citation is not governed by the EPA and FRA regulations and OSHA retains jurisdiction in this case.

Conrail also relies on a policy statement issued by the FRA on March 14, 1978 as demonstrating the FRA's exercise of jurisdiction over the cited working condition. Conrail cites the portion of the policy statement that provides:

Second, FRA views the question of occupational noise exposure of employees engaged in railroad operations, during their involvement in such operations, as a matter comprehended by the regulatory fields over which FRA has exercised its statutory jurisdiction. [*11] FRA is therefore responsible for determining what exposure levels are permissible, what further regulatory steps may be necessary in this area, if any, and what remedial measures are feasible when evaluated in the light of overall safety considerations. FRA's exercise of jurisdiction in this area is evidenced, in part, by the issuance of noise compliance regulations (42 FR 42343; August 23, 1977, issuing 49 C.F.R. Part 210) which will be utilized by FRA to enforce the Evironmental Protection Agency (EPA) Railroad Noise Emission Standards (40 C.F.R. Part 201). . . .

* * *

As suggested above, maximum permissible noise emission levels for rail equipment have already been determined by EPA in consultation with FRA. These emission levels, measured as set forth in the EPA standards, should be recognized by OSHA as establishing the parameters of "feasible administrative or engineering controls" with respect to rail equipment, including locomotives, when such equipment is situated in a railroad shop or enginehouse. . . .

43 Fed. Reg. 10583, 10588 (1978).

Commissioner Cleary notes that the Commission has held that section 4(b)(1) of the Act precludes the Secretary from applying his standards [*12] to the working conditions which the FRA policy statement says fall within the FRA's exclusive jurisdiction. Consolidated Rail Corp., 82 OSAHRC    , 10 BNA OSHC 1577, 1982 CCH OSHD P26,044 (No. 79-1277, 1982), appeal filed, No. 82-3302 (3d Cir. June 28, 1982). He does not, however, believe that is the situation in this case. The FRA policy statement does not totally preclude OSHA from enforcing its noise standard in railroad operations. In addition to the portion relied on by Conrail, the policy statement provides:

Any review of further remedial measures in the area of occupational noise exposure in locomotive cabs and cabooses must take into account the need to preserve the alertness of employees to rail transportation hazards affecting the employees, passengers and the general public along the right-of-way. Only the primary regulatory agency in the area of railroad safety is equipped to evaluate these considerations and to fashion appropriate solutions. The same considerations apply to employees' exposure to ratarder noise and other noise emanating primarily from railroad operations.

* * *

However, FRA believes noise exposure in shop areas and other areas where [*13] there are multiple noise sources is a qualitatively different issue, since abatement options will be more varied and noise sources will often include power tools and other industrial implements. Therefore, FRA recognizes the applicability of OSHA standards in shop areas, offices and other settings in which "industrial" noise emissions predominate or where exposure may be limited without the potential disruption of safe transportation activities.

As suggested above, maximum permissible noise emission levels for rail equipment have already been determined by EPA in consultation with FRA. These emission levels, measured as set forth in the EPA standards, should be recognized by OSHA as establishing the parameters of "feasible administrative or engineering controls" with respect to rail equipment, including locomotives, when such equipment is situated in a railroad shop or enginehouse. See 29 C.F.R. 1910.95(b)(1). FRA will work with OSHA to evaluate the prudence of requiring personal protective equipment to reduce noise exposure in those settings where employees may be subjected to more serious hazards associated with railroad operations.

43 Fed. Reg. at 10588.

Read in its entirety, [*14] Commissioner Cleary interprets the policy statement (1) to preclude OSHA from requiring engineering controls on locomotives and other rail equipment for which emission standards have been set by the EPA in consultation with FRA; (2) to preclude OSHA from requiring any remedial measures, including the use of personal protective equipment, in locomotive cabs and cabooses; and (3) as establishing parameters of feasible administrative or engineering controls [emphasis supplied], but to generally require personal protective equipment to reduce noise exposure in those settings where employees may be subjected to more serious hazards associated with railroad operations. This case involves an employee performing maintenance work in a shop. Although it appears that the primary source of noise was a locomotive rather than general "industrial" noise, there is no reason to believe that limiting the employee's exposure by means of personal protective equipment would in any way disrupt safe transportation activities. Accordingly, Commissioner Cleary concludes that this case falls under the portion of the policy statement in which the FRA recognizes the applicability of the OSHA [*15] noise standard.

B

In Commissioner Cottine's view, it is clear that FRA did not contemplate affecting employee working conditions in issuing its regulations. See FRA Railroad Noise Emission Compliance Regulations, 42 Fed. Reg. 42,343, 42,349 (1977). Thus, there was no exercise of authority by FRA or EPA n8 to prescribe or enforce standards or regulations affecting occupational safety or health. No exemption from OSHA standards occurred as a result. See Southern Pacific Transp. Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); Union Pacific R.R., 77 OSAHRC 150/A2, 5 BNA OSHC 1702, 1977-78 CCH OSHD P22,036 (No. 11558, 1977); Consolidated Freightways Corp., 77 OSAHRC 84/A2, 5 BNA OSHC 1481, 1977-78 CCH OSHD P21,846 (No. 10889, 1977), pet. for review dismissed, No. 77-2515 (9th Cir. Jan. 19, 1979).

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n8 Commissioner Cottine notes that EPA's comments concerning its railroad noise emission standards, 40 C.F.R. Part 201, show no intent to affect occupational safety and health. See Railroad Noise Emission Standards, 41 Fed. Reg. 2184 (1976); Railroad Noise: Proposed Emission Standards, 39 Fed. Reg. 24,580 (1974). As EPA characterized its approach, "EPA has developed and is now implementing an interstate rail carrier noise control strategy based on section 17 of the [Noise Control] Act that should prove to be effective in reducing environmental noise from railroads in many areas to the levels identified as protective of public health and welfare." 41 Fed. Reg. 2184. The only apparent reference to occupational safety and health was in EPA's response to a comment by the U.S. Department of Transportation that EPA should promulgate a regulation to protect railroad workmen from retarder noise.

For reasons outlined above, the EPA does not presently propose to regulate retarder noise from either the community health and welfare or the occupational health and safety point of view. The latter consideration is specifically under the purview of the Occupational Safety and Health Administration (OSHA) and is properly addressed by that Agency.

Id. at 2186. Thus, EPA recognized the distinction between public health and welfare considerations, which it addressed, and occupational safety and health considerations, which it did not address. EPA did not exercise any authority to prescribe or enforce standards or regulations affecting occupational safety and health when it promulgated its railroad noise emission standards, 40 C.F.R. Part 201. The same is true of its revised noise emission standards, also codified at 40 C.F.R. Part 201, whose effective date is January 15, 1984. See Noise Emission Standards for Transportation Equipment; Interstate Rail Carriers, 45 Fed. Reg. 1252, 1260 (1980); Proposed Noise Emission Standards for Transportation Equipment: Interstate Rail Carriers, 44 Fed. Reg. 22,960 (1979).

[*16]

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Commissioner Cottine further notes that in his view the subsequent FRA policy statement is not a standard or regulation within the meaning of section 4(b)(1) of the Act and therefore cannot operate to preempt the applicability of OSHA standards to railroad operations. He would follow the precedent established in Consolidated Rail Corp., 81 OSAHRC 8/A2, 9 BNA OSHC 1258, 1981 CCH OSHD P25,172 (Nos. 78-3100 et al, 1981), appeal filed, No. 81-1210 (1st Cir. Apr. 2, 1981), transferred, No. 81-4192 (2d Cir. Oct, 2, 1981) (OSHRC No. 78-3100) & No. 81-2639 (3d Cir. Oct. 2, 1981) (OSHRC No. 78-4881); See also Consolidated Rail Corp., (No. 79-1277), supra, (Cottine, Commissioner, dissenting).

C

Accordingly, both Commissioners Cleary and Cottine conclude the standards and regulations promulgated by the EPA and FRA pursuant to the Noise Control Act are not directed at the working condition cited in this case and therefore do not exempt that working condition from the Occupational Safety and Health Act. See American Petroleum Institute v. OSHA, 581 F.2d 493, 510 (5th Cir. 1978), [*17] aff'd on other grounds sub nom Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980); Consolidated Freightways Corp., supra. Both Commissioners agree that OSHA is preempted from requiring engineering controls on railroad equipment to reduce the noise levels below those mandated under the Noise Control Act. However, Conrail violated section 1910.95 in this case by failing to provide its employee with proper personal protective equipment.

III

Later in the inspection, the compliance officer observed two employees cleaning parts of a locomotive engine with a spray alkali cleaner. The workers were not wearing eye protection and one of the workers had red, irritated eyes from the alkali spray. According to the compliance officer's testimony, the employees told the compliance officer that they knew eye protective equipment was available but they decided not to use it because they thought they could not see while wearing it. They also said that Conrail's work rule concerning wearing eye protective equipment was not enforced. Because of the danger of eye injuries from the alkali solution, the Secretary cited Conrail [*18] for an other than serious violation of 29 C.F.R. 1910.133(a)(1). n9

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n9 29 C.F.R. 1910.133(a)(1) provides:

1910.133 Eye and face protection.

(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

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In regard to the failure of its employees to wear protective goggles, Conrail emphasized that it has a comprehensive safety program which requires employees to wear goggles when exposed to any irritants. Conrail enforces this safety program, and the employees in question admitted [*19] they knew eye protection was available but chose not to wear it.

The Secretary argued that while Conrail may have had a safety program, the fact that employees chose not to wear eye protection because they believed Conrail did not enforce the wearing of it shows that Conrail did not adequately enforce that program. Again, Judge Furcolo agreed with the Secretary, relying on the compliance officer's testimony. Accordingly, he held that Conrail committed an other than serious violation of section 1910.133(a)(1).

We conclude that Judge Furcolo was correct in finding that Conrail violated section 1910.133(a)(1). The record shows that Conrail's employees were not wearing eye protective equipment where there was a danger of eye injury. Conrail argues the defense of unpreventable employee misconduct. To establish the defense, the employer must show it had established workrules to prevent the violation, adequately communicated these rules to its employees, and effectively enforced the rules when violations were discovered. Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1979 CCH OSHD P23,664 (76-1538, 1979).

In this case, a company work rule existed, but testimony indicates [*20] it was not sufficiently enforced. Specifically, the two Conrail employees using the alkali spray said the workrule requiring proper eye protection was not enforced and admitted that they decided not to wear the protective equipment. Moreover, both of these workers were using the alkali spray in an open area of the plant. This would indicate that the work rule was not adequately enforced. See Maryland Shipbuilding and Drydock Co., 75 OSAHRC 85/E9, 3 BNA OSHC 1585, 1975-76 CCH OSHD P20,063 (No. 4503, 1975).

IV

Finally, the compliance officer inspected an area of the plant where cylinders of chlorine were stored. The chlorine cylinders were in a "chlorination building." In the nearby "water disposal building," there was a "chin-type" respirator which fits over the face but does not contain its own air supply. Rather, the employee would breathe through the "chin-type" respirator and the contaminated air would be cleansed by the chemical cartridge in the respirator. Because this type of respirator is inadequate for high concentrations of chlorine, Conrail was cited for an other than serious violation of 29 C.F.R. 1910.134(e)(2). n10 In case of a chlorine leak in the [*21] chlorination building, the compliance officer testified, an employee would need a respirator with independent air supply to work in that building. Conrail's shop manager testified that the respirator was meant for use in repairing leaks in the chlorination building.

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n10 29 C.F.R. 1910.134(e)(2) provides

1910.134 Respiratory protection.

* * *

(e) Use of respirators.

* * *

(2) The correct respirator shall be specified for each job. The respirator type is usually specified in the work procedures by a qualified individual supervising the respiratory protective program. The individual issuing them shall be adequately instructed to insure that the correct respirator is issued.

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Concerning the allegation that Conrail did not supply its employees with the proper respirator, Conrail argued that the "chin-type" respirator it made available to its employees was appropriate. Conrail emphasized that the compliance officer admitted the respirator was adequate to allow an employee to escape from a room in which [*22] there was a chlorine leak. Conrail further contended that the respirator was not intended for any other purpose.

Judge Furcolo found that,

Since there was chlorine in the area and there was no contradiction of the testimony that the respirator used did not fully protect against it but a self-contained breathing type would, . . . the correct respirator had not been specified as required by the standard at 29 C.F.R. 1910.134(e)(2).

Accordingly, Judge Furcolo held that Conrail committed an other than serious violation of the standard.

We affirm Judge Furcolo's conclusion that Conrail violated section 1910.134(e)(2). The standard requires that "the correct respirator . . . be specified for each job." Conrail's shop manager testified that the "chin-type" respirator was located in the water disposal building near the chlorination building so that, if there were a chlorine leak in that building, an employee could obtain a respirator from the water disposal building and enter the chlorination building to repair the leak. Thus, contrary to Conrail's argument, the purpose of the respirator was not limited to escape from the chlorination building. The undisputed testimony of the compliance [*23] officer indicated that the "chin-type" respirator would be inadequate for making repairs where an undetermined and possibly large amount of chlorine had accumulated. Therefore, the "chin-type" respirator was not the proper respirator and Conrail violated section 1910.134(e)(2).

Judge Furcolo's decision as to Conrail's violations of 29 C.F.R. 1910.95(a), 1910.133(a)(1) and 1910.134(e)(2) is affirmed. Having considered the factors in section 17(j) of the Act, 29 U.S.C. 666(i), we assess a $300 penalty for the violation of 29 C.F.R. 1910.95(a) and no penalty for the violations of 1910.133(a)(1) and 1910.134(e)(2). SO ORDERED.

CONCURBY: ROWLAND (In Part)

DISSENTBY: ROWLAND (In Part)

DISSENT:

ROWLAND, Chairman, dissenting in part and concurring in part:

I dissent from the majority's findings that Conrail violated the occupational noise exposure standard at 29 C.F.R. 1910.95(a) and the eye and face protection standard at 29 C.F.R. 1910.133(a)(1). However, I concur with the majority's finding that Conrail failed to supply its employees with the proper respirators in violation of 29 C.F.R. 1910.134(e)(2).

The majority correctly states that the Noise Control Act of 1972 is intended in part to protect [*24] workers from excessive noise levels. But the majority concludes that EPA and FRA regulations promulgated pursuant to the Noise Control Act do not affect the working condition in this case. I disagree.

The employee in this case was exposed to noise from a locomotive. n11 The EPA and FRA standards regulate the amount of noise produced by locomotives. The FRA regulation spells out its applicability.

The provisions of this part apply to the total sound emitted by rail cars and locomotives operated by a carrier as defined in 45 U.S.C. 22 under the conditions prescribed herein and in 40 C.F.R. Part 201, including the sound produced by refrigeration and air conditioning units which are an integral element of such equipment. . . . n12

The EPA regulation has a similar applicability section. See 40 C.F.R. 201.10. The EPA and FRA regulations also enumerate exceptions to the regulations, none of which apply to this case.

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n11 It is clear from the record that the Secretary's allegation of excessive noise was based on noise from the locomotive and not from any other source of sources.

n12 49 C.F.R. 210.3.

[*25]

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By limiting noise from locomotives and other types of railroad equipment, the EPA and FRA regulations afford protection to all persons who are subjected to noise from such equipment, including railroad employees. Section 4(b)(1) therefore preempts the Secretary from enforcing his noise standard in situations where, as in this case, railroad equipment is the source of the allegedly excessive noise. It is irrelevant whether the EPA and FRA regulations provide more or less protection than the OSHA standard. Once another agency exercises its statutory authority over particular working conditions, OSHA is preempted from applying its own standards to those working conditions regardless of the nature or stringency of the other agency's exercise. American Airlines, Inc., 75 OSAHRC 2/C13, 3 BNA OSHC 1624, 1975-76 CCH OSHD P20,129 (No. 9392, 1975); Mushroom Transportation Co., 73 OSAHRC 51/E10, 1 BNA OSHC 1390, 1973-74 CCH OSHD P16,881 (No. 1588, 1973).

Moreover, the Secretary cannot apply his standards to the working conditions named in the FRA policy statement over which the FRA has exercised jurisdiction. [*26] Consolidated Rail Corp., 82 OSAHRC    , 10 BNA OSHC 1577, 1982 CCH OSHD P26,044 (No. 79-1277, 1982). According to the policy statement:

FRA views the question of occupational noise exposure of employees engaged in railroad operations, during their involvement in such operations, as a matter comprehended by the regulatory fields over which FRA has exercised its statutory jurisdiction. FRA is therefore responsible for determining what exposure levels are permissible, what further regulatory steps may be necessary in this area, if any, and what remedial measures are feasible when evaluated in the light of overall safety considerations. FRA's exercise of jurisdiction in this area is evidenced, in part, by the issuance of noise compliance regulations (42 FR 42343; August 23, 1977, issuing 49 C.F.R. Part 210) which will be utilized by FRA to enforce the Environmental Protection Agency (EPA) Railroad Noise Emission Standards (40 C.F.R. Part 201). . . .

* * *

As suggested above, maximum permissible noise emission levels for rail equipment have already been determined by EPA in consultation with FRA. These emission levels, measured as set forth in the EPA standards, should [*27] be recognized by OSHA as establishing the parameters of "feasible administrative or engineering controls" with respect to rail equipment, including locomotives, when such equipment is situated in a railroad shop or enginehouse. See 29 C.F.R. 1910.95(b)(1).

43 Fed.Reg. 10583, 10588 (1978) (emphasis added). Thus, in its policy statement the FRA has exercised exclusive jurisdiction to protect railroad employees against non-industrial noise arising from locomotive operations. The policy statement further explains that OSHA should recognize the emission levels established by the EPA in consultation with FRA as establishing the parameters of feasible administrative or engineering controls and that OSHA's role in the area of protecting workers from non-industrial noise shall be only an advisory one.

FRA will work with OSHA to evaluate the prudence of requiring personalk protective equipment to reduce noise exposure in those settings where employees may be subject to more serious hazards associated with railroad operations.

Id. Thus, the policy statement demonstrates that the FRA has exercised exclusive jurisdiction over occupational noise exposure from railroad equipment in the [*28] railroad industry.

The majority states that its holding is consistent with section 4(b)(1) because it only requires Conrail to give its workers personal protective equipment and does not require Conrail to institute engineering controls to quiet its locomotives. Such a distinction, however, is not appropriate. Engineering controls and personal protective equipment are simply different means of protecting employees against the same hazard. n13 To say that the OSHA standard can be applied to require personal equipment because the EPA and FRA regulations only require engineering controls is inconsistent with the principle that the nature or stringency of the other agency's exercise is irrelevant in determining whether a section 4(b)(1) exemption exists. See American Airlines, Inc., supra; Mushroom Transportation Co., supra.

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n13 The OSHA standard requires both methods of protection under certain circumstances. Section 1910.95(b)(1) provides:

When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fall 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.

[*29]

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Because both the EPA and FRA have the authority under the Noise Control Act of 1972 to regulate worker safety and health and because these agencies have exercised that authority over the working condition in this case, I would find that OSHA authority over the working condition has been preempted under section 4(b)(1) of the Act.

I would vacate the eye protection item because the Secretary failed to prove that Conrail knew or could have known, with reasonable diligence, that the employees were not wearing protective eye equipment. Such proof is an essential element of the Secretary's case.

It is undisputed that Conrail made appropriate eye protection available and instructed employees to use such equipment. The majority, however, finds Conrail in violation because it did not enforce the use of the equipment, relying on the compliance officer's testimony that the employees involved in the incident told him that the rule was not enforced.

I disagree with the conclusion that Conrail did not adequately enforce [*30] its work rule. The shop manager of Conrail's diesel facility, Mr. Lord, testified that Conrail had an ongoing and comprehensive procedure for enforcing its work rules, including hearings on alleged violations that could lead to disciplinary action. Against this specific testimony, the Secretary offers only uncorroborated hearsay evidence that Conrail did not enforce its work rule. Moreover, the hearsay is particularly unpersuasive in this case because of the exculpatory nature of the statements made by the disobedient employees. In my opinion, Mr. Lord's specific testimony, which was tested by cross-examination, must prevail over the hearsay offered by the Secretary. n14

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n14 Because I would find that Conrail adequately enforced its work rule, I need not consider whether the Act imposes a duty on employers to enforce safety rules as well as to establish and communicate such rules. See Marson, Inc., slip op. at 17 n. 17; Borton, Inc., 82 OSAHRC 10 BNA OSHC 1462, 1982 CCH OSHD P25,893 (No. 77-2115, 1981) (Rowland, Chairman, dissenting).

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I agree with the lead opinion that Conrail violated section 1910.134(e)(2) by providing an incorrect type of respirator for use in its chlorination building. Conrail contends that the "chin-type" respirator it provided was adequate for purposes of escaping from the chlorination building if a leak should develop. However, Conrail's shop manager testified that the respirator was intended to be used by an employee entering the chlorination building to repair a leak. It is undisputed that the "chin-type" respirator was inadequate for this purpose. Thus, the respirator was not the correct type for its intended use. Accordingly, while I would reverse the judge with respect to the alleged violations of sections 1910.95(a) and 1910.133(a)(1), I agree to affirm his decision with respect to the violation of section 1910.134(e)(2).