BOISE CASCADE CORPORATION, COMPOSITE CAN DIVISION

OSHRC Docket No. 802

Occupational Safety and Health Review Commission

April 7, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

Warren E. Jones, for the employer

OPINION:

DECISION

BY THE COMMISSION:

On March 6, 1972, a citation was issued to respondent alleging a single "non-serious" violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter referred to as "the Act"], for failure to comply with the standard at 29 CFR 1910.95. n1 A penalty of $150 was proposed. On March 27, 1972, the citation was amended to extend the abatement date for the alleged noncomplying conditions. Respondent timely filed its notice of contest.

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n1 The standard at 29 CFR 1910.95 reads,

(a) Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G-16 when measured on the A scale of a standard sound level meter at slow response. When noise levels are determined by octave band analysis, the equivalent A-weighted sound level may be determined as follows: [Figure G-9 and explanatory note omitted.]

(b)(1) When employees are subject to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the Table.

TABLE G-16-PERMISSIBLE NOISE EXPOSURES n1

Sound level

dBA slow

Duration per day, hours

response

8

 90

6

 92

4

 95

3

 97

2

100

1 1/2

102

1

105

1/2

110

1/4 or less

115

n1 When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effect of each. If the sum of the following fractions: C1/T1+C2/T2 Cn/Tn exceeds unity, then, the mixed exposure should be considered to exceed the limit value. On indicates the total time of exposure at a specified noise level, and Tn indicates the total time of exposure permitted at that level.

Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level.

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

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

[*2]

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In his decision issued on February 7, 1974, Judge Paul E. Dixon affirmed the citation with respect to three specific operations, vacated the citation with respect to three other operations, n2 vacated the proposed penalty, and extended the abatement dates for the three noncomplying operations. Judge Dixon also stated that respondent had not maintained a continuing and effective hearing conservation program in that its efforts to require the wearing of personal protective equipment in areas where excessive noise levels were measured were deficient.

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n2 A violation was affirmed with respect to the automatic seamers, hand seamers, and winders. The citation was vacated with respect to the hand caulkers and the convolute winder on findings that it was not shown that those operations produced noise in excess of permissible limits. The Secretary has not challenged the vacation of the allegations concerning the hand caulkers and convolute winder. The Judge's decision regarding these operations is therefore affirmed. The citation was also apparently vacated with respect to respondent's punch presses on the finding that although the presence of excessive noise was shown, the use of personal protective equipment prevented employee exposure. We reverse this portion of the Judge's decision for the reasons expressed infra.

[*3]

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Pursuant to section 12(j) of the Act, the decision of the Judge was directed for review before the full Commission on March 8, 1974. The following issues were specified in the direction for review:

(1) Whether the evidence adduced in this case establishes a violation of the Act for noncompliance with 29 C.F.R. 1910.95.

(2) Whether 29 C.F.R. 1910.95(b)(1) requires the employer to utilize feasible engineering or administrative controls if personal protective equipment used by the employees reduces the sound levels to that required by Table G-16.

(3) Whether 29 C.F.R. 1910.95(b)(3) is so vague as to be unenforceable.

For the reasons that follow we affirm in part, reverse in part, and otherwise modify the decision of the Judge.

On February 29, 1972, an inspection was conducted at respondent's worksite in Kansas City, Kansas, where respondent engages in the fabrication of paper and metal containers. Respondent employs approximately 125 employees at this particular plant.

During the course of the inspection, noise level readings were taken at 16 locations throughout respondent's plant. The Judge's [*4] decision incorporated a tabular summary of the noise levels recorded at respondent's plant during the inspection as well as similar evidence from other surveys introduced at the hearing by respondent. We adopt the data contained in that summary, and attach the table as Appendix A to this decision. We also accept the Judge's evaluation that the compliance officer's data is the most credible of the evidence submitted. Paul L. Heath d/b/a/ Paul L. Heath Contracting Co., 3 BNA OSHC 1550, 1974-75 CCH OSHD para. 20,006 (No. 5467, 1975).

Respondent contends that the duration of the noise samples was insufficient to establish that respondent's employees were exposed to excessive noise for periods in excess of the standard's limits. The noise survey began about 9:00 a.m. What time the survey was completed is unclear. The compliance officer testified that the inspection was completed at about 11:15 a.m. The testimony by two of respondent's representatives indicated that the inspection was completed by 10:40 a.m. Respondent would require the samplings to be taken for a period of time in excess of the maximum permissible exposure at a particular noise level. We have rejected previously [*5] this contention. Sun Shipbuilding and Drydock Co., 2 BNA OSHC 1181, 1974-75 CCH OSHD para. 18,537 (No. 268, 1974). We do so again here.

Stipulations were made at the hearing that respondent's employees spend seven and one-half hours daily in the plant at work. The actual workday consisted of eight hours less two ten-minute breaks and approximately two additional five-minute restroom breaks. The stipulations did not establish that any employee spent the entire work time of seven and one-half hours at a particular machine. Some employees did; others moved about among several machines. The compliance officer accounted for employee movement in part by taking readings for some operators at various locations. In each instance, the noise samplings were taken with respect to employees who were the operators of specific machines. There is no evidence that any of the specific operators spent any significant time outside the areas encompassed by the sound measurements during the actual workday of seven and one-half hours. From this, we may infer that the machine operators were exposed to the measured sound levels for approximately seven and one-half hours daily. n3

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n3 Respondent urged that it was error for the Judge to find inadmissible evidence of the average efficiency rates of various machines and lines in respondent's plant. We have examined respondent's proffer of proof in this regard. Even if the average breakdown time figure based on the overall plant efficiency was accepted, the duration of employee exposure is not sufficiently reduced to alter the result.

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Therefore, by reference to the table of measured sound levels for the operations at issue, it is apparent that, even applying the lower recorded value for each operation, exposure in excess of the noise limits prescribed in Table G-16 was shown for the winder, seamer, and punch press operations.

Respondent did not require the wearing of personal protective equipment by the operators of the winders and seamers, even though these employees were exposed to excessive noise levels, and the operators in fact wore no protective equipment. A violation is therefore clearly established regarding those operations. With respect to [*7] the punch press operation, respondent contends that its employees were not exposed to the excessive noise because they were provided with earplugs and the use of the earplugs was required. n4 The compliance officer, however, observed four employees operating punch presses who were not wearing the earplugs. It was at least questionable whether the earplugs were properly worn by another employee. Based on the number of unprotected employees, it is apparent that respondent's mandatory "earplug rule" with respect to the punch press operation was not effectively enforced. This is a sufficient predicate for a violation. n5 Southern Indiana Gas & Electric Co., 1 BNA OSHC 1569, 1973-74 CCH OSHD para. 17,374 (No. 456, 1974).

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n4 It was admitted in the pleadings that the noise levels in the punch press area exceeded the permissible limits. It was stipulated at the hearing that respondent's employees were provided with Wilson Sound Silencers, a form of personal protective equipment. Use of the sound Silencers was mandatory in the punch press area and optional elsewhere. It was further stipulated that the sound silencers attenuate noise approximately 30 db. when properly inserted in each ear.

n5 Under 1910.95, feasible engineering and administrative controls are the primary methods of noise reduction. Turner Co., Div. of Olin Corp., 4 BNA OSHC 1554, 1976-77 CCH OSHD para. 21,023 (No. 3635), petition for review docketed, No. 76-2025, 7th Cir., October 18, 1976; Continental Can Co., 4 BNA OSHC 1541, 1976-77 CCH OSHD para. 21,009 (No. 3973), petition for review docketed, No. 76-3229, 9th Cir., October 19, 1976. Personal protective equipment must be used to supplement feasible engineering and administrative controls if the use of such controls does not reduce noise to the prescribed limits. Id. Where, as here, employees who are subjected to excessive noise levels do not wear, or are not required to wear, appropriate personal protective equipment, a violation of the standard occurs.

[*8]

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The final issue presented is whether the standard at 29 CFR 1910.95(b)(3) n6 is unenforceably vague. We hold that it is not for the reasons given by Administrative Law Judge Burroughs in The Singer Company-Furniture Division, (No. 7134, November 20, 1974), aff'd on other grounds by the Commission, 3 BNA OSHC 2079, 1975-76 CCH OSHD para. 20,481 (1976). We note further, that despite the alleged vagueness of the standard, respondent had implemented some protective measures as components of its hearing conservation program. n7 Thus, it cannot be said that the standard was without meaning to respondent.

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n6 See n. 1, supra.

n7 We agree with the decision of the Judge that respondent's hearing conservation program was inadequate. Although respondent had taken some protective measures, its failure to require the wearing of personal protective equipment in all areas of excessive noise, and to enforce diligently this rule, reflects the basic inadequacy of its efforts.

The Secretary argues that respondent's hearing conservation program is inadequate because it did not correspond to the guidelines in Bulletin 334 of the Department of Labor. We note that respondent only received that bulletin following the inspection at the closing conference. Under these circumstances, to apply the guidelines rigidly would elevate the bulletin to the level of a standard or rule and give rise to possible difficulties under section 6 of the Act and 5 U.S.C. section 552.

[*9]

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The amended citation issued in this case ordered that: (1) within about one month respondent was to develop, implement, and provide a copy of procedures for interim administrative controls, including type of hearing protection devices and hearing conservation program; (2) within three months respondent was to conduct and provide results of an engineering study to include feasible engineering controls for the equipment and facilities; (3) within approximately 11 months respondent was to complete feasible equipment and facility modification; and (4) respondent was to submit a monthly progress report specifying in detail what had been accomplished and what remained to be done, and a schedule of expected completion date.

In his decision, Judge Dixon modified the requirements of step one of the citation's abatement plan, and extended the periods for complying with each step of the plan to about four months, seven months, and 16 months, respectively. He also ordered that a progress report be submitted only every 90 days.

In Ford Motor Co., Metal Stamping Div., 4 BNA OSHC 1243, 1976-77 CCH OSHD para. [*10] 20,737 (No. 2786, 1976), petition for review docketed, No. 76-1718, 7th Cir., July 23, 1976, a divided Commission concluded that it is not within the power of the Commission to order that specific abatement measures in a plan be used n8 and that this power rests solely with the Secretary of Labor. The Judge therefore erred to the extent that he modified the substantive provisions of the abatement plan.

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n8 Commissioner Cleary does not share this opinion. See his dissenting opinion in Ford Motor Co.

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It is the Commission's duty, however, to prescribe a reasonable period of time for abatement when the time period in the citation appears unreasonable. Id. We agree with Judge Dixon that the abatement periods in the citation in this case were inappropriate. We believe that the abatement periods prescribed in the Judge's order are reasonable and consistent with the purposes of the Act.

Based on the evidence of record and in consideration of the factors specified in section 17(j) of the Act, Judge Dixon concluded [*11] that no penalty was warranted. We agree.

Accordingly, the Judge's decision finding respondent in nonserious violation of the Act for failure to comply with 29 CFR 1910.95 is affirmed in part, reversed in part and modified. Respondent is ordered to complete feasible equipment or facility modification within 16 months of the date that this order becomes enforceable.

It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation should be vacated in its entirety because the evidence is insufficient to establish that respondent's employees were exposed to prohibited noise levels.

Judge Dixon's vacation of the portion of the citation pertaining to respondent's punch presses was entirely proper and should be affirmed. Since the operators of those presses were wearing personal hearing devices which afforded them a degree of attenuation greater than that required by the standard, there was no violation of the Act at those locations. Secretary v. Turner Company, OSAHRC Docket No. 3635, August 24, 1976 (dissenting opinion). The majority asserts that "[t]he compliance officer . . . observed four employees operating punch presses who were not wearing earplugs" and that "[i]t [*12] is at least questionable whether the earplugs were properly worn by another employee." That is irrelevant. As the Secretary of Labor properly concedes in his review brief "the amount of their exposure was not ascertained." Furthermore, there is no evidence that prohibited amounts of noise were entering the ears of the employee who might have been improperly wearing earplugs.

The remainder of the citation should also be vacated because the evidence fails to establish that respondent's employees were exposed to excessive noise levels for impermissible periods of time. All the complainant's evidence shows is the noise levels at the time of the inspection. This, of course, is an insufficient basis for holding respondent in noncompliance with 29 C.F.R. 1910.95.

As the majority opinion indicates, complainant's inspector conducted his noise survey for slightly more than two hours, during which time he obtained sound level readings at 16 locations throughout respondent's plant. The inspector felt that he spent from five to eight minutes at each of these locations. The instant case well-illustrates why sound level readings of such short duration are generally unreliable.

Respondent [*13] introduced into evidence the results of two of its own noise surveys. The readings on both were significantly lower than those obtained by complainant. For example, they reflect readings of 90-92 dBA on the number 401 winder, 89-90 and 91 dBA on the number 202 winder, and 91 dBA on the number 8506 automatic seamer. If these levels remained constant throughout the entire working day, most of the levels would not be prohibited by Table G-16. However, noise levels frequently do not remain constant in an industrial atmosphere. As Judge Chalk correctly observed in Secretary v. Sun Shipbuilding and Drydock Co., 11 OSAHRC 171, 191 (1974):

"The Secretary's burden . . . becomes exceedingly more difficult in some noise cases as the number of noise sources contributing to the observed noise level increases, for all contributing sources must be shown to have so contributed throughout the period in question and usually must be identified."

Complainant has not satisfied that burden in this case.

As complainant's inspector admitted, some of the noise in respondent's plant is intermittent in nature, rising from general background noise, which is contributed to by the idling phase of various [*14] machines, to a peak noise level while these machines are actually in the process of punching, crimping, or seaming. Thus, the noise level at any particular machine is dependent in part upon the noise produced by other machinery. Accordingly, when any of this machinery is out of operation because of maintenance problems, the noise level at other adjacent machines is reduced. Furthermore, movement of the machine operators to different positions in the performance of their jobs indicated that they were not constantly subjected to the same noise levels. For example, there was testimony that the operators of the number 401 winder had mobility of about 2,500 square feet.

Complainant's survey does not allow for the above-enumerated noise reduction factors and his samples are therefore not representative of actual employee exposure in respondent's plant. Additionally, the evidence indicates that the manner in which the inspector obtained his readings by holding his instrument close to the operators' heads could elevate the readings by as much as 4 dBA. Affirmance of the citation under these circumstances constitutes an unique "lapse into conjecture." Secretary v. Sun Shipbuilding [*15] and Drydock Co., supra at 191. Accordingly, it cannot be said that respondent's hearing conservation program was inadequate.

APPENDIX A

SUMMARY OF NOISE SURVEYS OF FEBRUARY 29, 1972,

OCTOBER 21, 1971, MARCH 3, 1972 and MARCH 17, 1972

Pictures

Operation and Machine

Name of

Exhibits

Identification

Operator

Nos.

Punch Presses:

No. 16

Coldnar

C-4

No. 9546

Miotk

through

No. 20

Pruce (Pruse)

C-9

No. 19

Haynes

Hand Caulkers:

No. S-708

Harris

C-11

No. 6949

Berry (Barry)

& 12

Convolute Winder:

No. 2304

McCinnis

C-13 & 14

Hand Seamers:

No. 57

Newcomb

C-15

No. 6354

Miller

thru C-18

Winders

No. 601

Bright

C-21

No. 601

Sullivan

C-21

No. 202

Cruis (Sear) n(4)

Automatic Seamers:

No. 9891

Noe (Snow)

C-22,23,24

No. 8506

Paschler n(6)

C-19 & 20

(Basler)

SUMMARY OF NOISE SURVEYS OF FEBRUARY 29, 1972,

OCTOBER 21, 1971, MARCH 3, 1972 and MARCH 17, 1972

Operation and Machine

Name of

O.S.H.A. Survey

Identification

Operator

February 29, 1972

Punch Presses:

Decibels

Transcript

No. 16

Coldnar

102

P. 83

No. 9546

Miotk

103

p. 85

No. 20

Pruce (Pruse)

102

p. 85

No. 19

Haynes

102

p. 85

Hand Caulkers:

No. S-708

Harris

92

p.102

No. 6949

Berry (Barry)

92

p.102

Convolute Winder:

No. 2304

McCinnis

95

p.105

Hand Seamers:

No. 57

Newcomb

96-93

p.113

No. 6354

Miller

92-95

p.111

Winders

No. 601

Bright

92-97

p.121

No. 601

Sullivan

95

p.122

No. 202

Cruis (Sear) n(4)

94

p.128

Automatic Seamers:

No. 9891

Noe (Snow)

92-96

p.123

No. 8506

Paschler n(6)

94

p.119

(Basler)

[*16]

SUMMARY OF NOISE SURVEYS OF FEBRUARY 29, 1972,

OCTOBER 21, 1971, MARCH 3, 1972 and MARCH 17, 1972

Operation

Name of

Cleo Williams-Exployers'

and Machine

Operator

Ins. Survey

Identification

October

March 3,

21, 1971

1972 n(1)

(Exhibit

R-2) n(2)

Punch

Presses:

Decibels

Decibels

Transcript

No. 16

Coldnar

Three

98-102

p. 439

Readings

No. 9546

Miotk

varied from

98-101

p. 440

No. 20

Pruce (Pruse)

94 to 102

98-102

p. 441

No. 19

Haynes

decibels n(3)

102-105

p. 441

Hand

Caulkers:

No. S-708

Harris

91

p. 441

No. 6949

Berry (Barry)

86-91

p. 442

Convolute Winder:

No. 2304

McCinnis

90-94

p. 442

Hand Seamers:

No. 57

Newcomb

No. 6354

Miller

Winders

No. 601

Bright

Operation

p. 445

No. 601

Sullivan

Down

No. 202

Cruis (Sear) n(4)

n(5) 91

p. 445

Automatic Seamers:

No. 9891

Noe (Snow)

92-93

p. 445

No. 8506

Paschler n(6)

92

p. 444

(Basler)

SUMMARY OF NOISE SURVEYS OF FEBRUARY 29, 1972,

OCTOBER 21, 1971, MARCH 3, 1972 and MARCH 17, 1972

Wold's Survey

Operation and Machine

Name of

March 17, 1972

Identification

Operator

(Exhibit 2-5)

Punch Presses:

Decibels

Transcript

No. 16

Coldnar

No. 9546

Miotk

94-96

p. 500

No. 20

Pruce (Pruse)

94-96

p. 500

No. 19

Haynes

94-96

p. 500

Hand Caulkers:

No. S-708

Harris

No. 6949

Berry (Barry)

80-84

p. 493

Convolute Winder:

No. 2304

McCinnis

86-38

p. 502

Hand Seamers:

No. 57

Newcomb

No. 6354

Miller

Winders:

No. 601

Bright

90-92

p. 494

No. 601

Sullivan

93-97

p. 495

No. 202

Cruis (Sear) n(4)

89-90

p. 496

Automatic Seamers:

No. 9891

Noe (Snow)

   93

p. 499

No. 8506

Paschler n(6)

   91

p. 497

(Basler)

[*17]

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n(1) Sometimes referred to in interrogation and testimony as March 2, 1972.

n(2) Exhibit R-2, objected to as not identifiable with operations as identified by Stewart (T. 345-347). This was not done.

n(3) Press numbers or operators not identified.

n(4) It appears Cruit and Sears are some parson (T. 127, 445).

n(5) McNealy did not identify location or work station of Cruit.

n(6) Paschler identified by McNealy seems to be operator of same machine No. 8506 identified as Basler by Stewart (T. 117, 446).

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