CARNATION COMPANY

OSHRC Docket No. 8165

Occupational Safety and Health Review Commission

June 29, 1981

COUNSEL:

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Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

Merle Wood II, Carnation Can Co., for the employer

OPINION:

ORDER OF REMAND

This case is before the Commission on an order of remand issued by the United States Court of Appeals for the Ninth Circuit. Carnation Co. v. Secretary of Labor & OSHRC, 641 F.2d 801 (9th Cir. 1981).

In the Commission decision in this case, Carnation was found in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-78 ("the Act"), for failure to comply with the standard at 29 C.F.R. 1910.95(b)(1) n1 because feasible engineering controls were not utilized in three areas where employees were subjected to excessive sound levels. Carnation Co., 78 OSAHRC 54/D9, 6 BNA OSHC 1730, 1978 CCH OSHD P22,837 (No. 8165, 1978). n2 On review, Carnation claimed that the Secretary's failure to cite all areas of excessive noise in the plant and the administrative law judge's refusal to allow evidence of the feasibility of plant-wide controls improperly limited the Secretary's burden of proof and violated Carnation's due process rights. The Commission rejected Carnation's claims and held that the Secretary's [*2] limited inspection and citation of noncomplying conditions was an exercise of discretion which properly served the purposes of the Act. The Commission also concluded that evidence concerning the economic feasibility of plant-wide use of engineering controls was unnecessary to determine the feasibility of the Secretary's suggested controls at the cited locations.

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n1 The standard provides:

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

Duration per

Sound level dBA

day, hours

slow response

8

 90

6

 92

4

 95

3

 97

2

100

1 1/2

102

1

105

1/2

110

1/4

115

n2 Commissioner Cottine did not participate in the consideration or decision of this case. His explanation is set forth in his separate opinion in Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1978 CCH OSHD P22,722 (No. 13029, 1978).

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The Ninth Circuit denied enforcement of the Commission's order and remanded the case for further proceedings. The court approved of the Secretary's limited, random inspection method, but concluded that the Commission's failure to consider Carnation's evidence concerning the economic feasibility of plant-wide controls constituted a denial of due process. The court remanded the case to the Commission "to permit Carnation to introduce evidence that a piecemeal approach to economic feasibility will produce significantly different results than a plant-wide approach." The court also noted that, if Carnation met this burden, the Secretary must prove that his proposed noise controls are feasible for the entire plant.

In order to effectuate the court's order, we remand this case to the Chief Administrative Law Judge for assignment to an administrative law judge, n3 who is ordered to take additional evidence and to make a determination on the issue of economic feasibility consistent with the court's order.

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n3 Administrative Law Judge Vernon Riehl, who initially decided this case, has retired.

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SO ORDERED.