WEST POINT PEPPERELL, INC.

OSHRC Docket No. 8255

Occupational Safety and Health Review Commission

April 18, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Lovic A. Brooks, Jr., for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Erwin L. Stuller, dated November 13, 1975, which is attached hereto as Appendix A, n1 is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision affirmed in part a citation which alleged that respondent violated 29 U.S.C. 654(a)(2) by falling to comply with the noise standard codified at 29 C.F.R. 1910.95(b)(1) n2 in weave rooms #2 and #3 at its textile mill in Lindale, Georgia. n3 Judge Stuller vacated the portion of the citation pertaining to weave room #3 but affirmed the allegation of noncompliance with 1910.95(b)(1) in weave room #2. We affirm the Judge's decision with respect to weave room #3 and reverse his finding of a violation in weave room #2.

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n1 Chairman Barnako does not agree to this attachment.

n2 That standard provides as follows:

"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.

TABLE G-16 - PERMISSIBLE

NOISE EXPOSURE

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 or less

115"

n3 The citation also alleged noncompliance with 29 C.F.R. 1910.93, the air contamination standard, which has subsequently been recodified at 29 C.F.R. 1910.1000. The Judge vacated the charge after finding that complainant did not accurately measure the exposure of respondent's employees to cotton dust particles. Complainant, in effect, concedes that the Judge's disposition was correct. Respondent's review petition, however, requests the Commission to explicate certain requirements of the standard. We accept complainant's concession. The issues respondent raises in its review petition are therefore moot.

[*2]

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Respondent is a large textile manufacturer with mills in several states. Its business, primarily processing raw cotton and synthetics into fabrics, is international as well as interstate in scope. On April 17, 1974, complainant's inspector, an industrial hygienist, inspected its Lindale plant and took sound level readings in weave rooms #2 and #3. The readings were obtained with a sound level meter which was calibrated before and after the inspection. The inspector spent 5 minutes in weave room #2 and 15-20 minutes in weave room #3 testing noise levels during the second work shift.

On the day of the inspection, weave room #2, which was about 223 feet long, 122 feet wide and 15 feet high, contained 112 Draper Shutterless Looms (DSL) spaced over approximately 1/3 to 1/4 of the room's area. The rest of the room contained other machinery which was not weaving equipment and which was not operating. The inspecting officer obtained noise level readings ranging from 90-97 dBA. The 97 dBA level was recorded in the weaver's alley, a 2 1/2 to 3 foot wide area where the employees work. The lower levels [*3] were recorded at the empty space away from the looms. Weave room #3, which measured 682 feet long, 238 feet wide, and 17 feet high, contained 1,178 X-2 and X-3 Draper fly shuttle looms. The noise levels in room #3 ranged from 98 dBA in a large central aisle to 103 dBA in the weaver's alley. The primary sources of noise on the fly shuttle looms were the various points of impact on the machine, such as the picking mechanism, the shuttle, and the boxing. On the DSL, the noise emanated primarily from the taped wheel covers, guard shields, and pinion gears. Employees who worked a full 8-hour shift spent about 7 hours 10 minutes to 7 hours 40 minutes actually working in the weave rooms.

Section 1910.95(b)(1) n4 provides that "[w]hen employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized." That respondent's employees were exposed to excessive noise levels in both weave rooms is essentially uncontroverted. Respondent contends, however, that it would not be technologically feasible to implement complainant's engineering controls.

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n4 This standard has been held to be valid and enforceable by a divided Commission in Secretary v. Turner Co., OSAHRC Docket No. 3635, August 24, 1976.

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In Secretary v. Continental Can Company, OSAHRC Docket No. 3973, August 24, 1976, we concluded that engineering controls are technologically feasible if they will result in a significant reduction in ambient noise levels. In the instant case, we find that the evidence does not establish that the technology exists to achieve significant noise attenuation in either of the two weave rooms.

Complainant's expert, an assistant professor of mechanical engineering, based his opinion on a textbook analysis of noise reduction techniques, his observation of noise reduction devices which had been installed under laboratory conditions, and a brief visit to the weave rooms of respondent's Lindale mill. He testified that since the noise emanated primarily from the points of impact on the fly shuttle looms, their metal parts should be replaced with resilient material, for example, a polyurethane power block and plastic pick ball, and that a pneumatic [*5] damper should be used to decelerate the picker stick. The expert opined that noise reduction kits could be applied to both the DSL and the fly shuttle looms. He contended that the installation of these kits would reduce noise emissions from both types of looms by about 5 dBA. He stated that this 5 dBA reduction per loom theoretically could be transposed to a 5 dBA reduction for a whole operating weave room. However, the expert emphasized that he had only observed noise reduction kits implemented on an experimental basis in a developer's laboratory. n5 He did not know whether any of the studies or publications he referred to had resulted in a significant noise reduction in any operating weave room installation. He also conceded that his correlation of a 5 dBA reduction on isolated looms with a 5 dBA total reduction in an operating weave room was hypothetical. He further qualified his opinion by saying that "I wouldn't give a blanket recommendation that a company do that [referring to implementing engineering controls] immediately because I haven't done a feasibility study of this." Thus, complainant's expert, by his own admission, had absolutely no practical knowledge of the [*6] feasibility of noise attenuation devices for a textile mill.

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n5 The experimental trials of these noise reduction techniques yielded slightly higher results than the conservative 5 dBA reduction suggested by the witness for actual weave room operations.

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Respondent's experts, n6 on the other hand, testified that the field tests for the noise reduction kits yielded such unsatisfactory results that the manufacturer, Draper, did not go forward with them. They noted that no technology was available to respondent at the time of the inspection, or at the time of the hearing, which could reduce the noise level of respondent's looms. Respondent's engineering director testified that respondent, with the assistance of a trained sound engineer and technician, attempted to retrofit the looms with various acoustical materials, fiber gears, and cushion pads, but these devices deteriorated rapidly causing the machines to be in a constant state of repair. He pointed out that baffles and enclosures would hinder operation of the looms [*7] and create humidity and ventilation problems which would adversely affect the quality of the fabric.

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n6 Respondent's expert witnesses had been involved in the textile industry for many years. One was a textile engineering and management expert with over 40 years of experience with major textile manufacturers (other than respondent), the other had been director of engineering for 3 1/2 years with West Point Pepperell.

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The burden of establishing technological feasibility rests with complainant. Secretary v. Love Box Co., OSAHRC Docket No. 6286, April 7, 1976. An analysis of the testimony of both respondent's and complainant's expert witnesses yields the conclusion that complainant has not satisfied this burden. The recommendations of complainant's expert, which had never been tested in an operating weave mill, present the mere possibility that, if they were implemented, noise levels would be attenuated. In light of the experience of respondent's noise experts revealing that the application of acoustical and [*8] resilient components does not substantially reduce the noise emissions in a functioning weave room and the unsatisfactory results of Draper's field tests on its noise reduction kits, we are not convinced that it was feasible to achieve significant noise reduction in either weave room #2 or #3 by implementing engineering controls on DSL and fly shuttle looms. n7

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n7 Complainant also suggests that increased spacing between machines "might" produce a reduction in noise levels by "something on the order of a couple of decibels." While we determined that a reduction of 3 dBA clearly represented a significant reduction in Secretary v. Continental Can Company, supra, at n. 13, we find that "something on the order of a couple of decibels" is too indefinite to establish a significant attenuation of noise in the weave rooms. We also note that the feasibility of spacing in the manner suggested was not shown since weave room #2 contained other than weaving equipment and looms were already spaced throughout weave room #3.

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Having determined that the technological feasibility of engineering controls has not been established, we must decide whether complainant has proved noncompliance with the alternative requirement of 1910.95(b)(1) for the implementation of feasible administrative controls. In the Continental Can case, the Commission held that the term "feasibility" consists of two components: technological feasibility and economic feasibility. An analysis of economic feasibility requires the weighing of "all of the relevant cost and benefit factors." One of the factors considered to be most relevant to the determination of economic feasibility in Continental Can was that an effective hearing conservation program utilizing reliable personal protective equipment could protect employees from excessive noise levels. This respondent maintains such a program. n8 The costs, based upon a conservative estimate resulting from respondent's examination of the procedure necessary to effectuate such administrative controls, exceed the benefits to be derived therefrom. The cost for the first year of cross-training to maintain a 4-hour rotation for all weave room employees (at least 380) is estimated [*10] at $1,030,733. This projected figure reflects an expected 3 percent decrease in efficiency resulting in a loss of $461,602 and an annual employee turnover rate of 145 percent. A replacement crew would generate a one-time expenditure of $2,726,880. The total first-year cost of employee rotation to control noise is estimated at $5,359,719. The subsequent annual cost is calculated at $2,632,839. Under these circumstances the feasibility of administrative controls has not been established.

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n8 The following facts remain uncontroverted in the record. Ear protective devices furnished to employees in weave rooms at the Lindale mill are individually fitted and monitored by registered nurses and licensed practical nurses specifically trained for such duty. The devices include the General Electric "Peacekeeper," a custom molded ear plug, and the David Clark 10A earmuff. The "Peacekeeper" is more comfortable than standard plugs and easier to monitor, and properly fitted, attenuates noise by 20-25 dBA. The earmuff, properly fitted, attenuates noise to a slightly greater extent than the ear plug. The use of these devices reduces the noise levels to which respondent's employees are subjected to within the levels permitted by Table G-16.

[*11]

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For the foregoing reasons, we find that complainant has failed to prove that technologically feasible engineering and administrative controls which would significantly reduce the noise levels in weave rooms #2 and #3 could be implemented at respondent's Lindale mill. n9 Accordingly, the entire citation and penalty assessment are vacated.

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n9 In his petition for review, complainant objects to the Judge's finding that respondent abated the hazard deemed to exist in weave room #2 by transferring the offending looms to weave room #3. Since we find no violation in weave room #2, the issue of abatement is moot. It should also be noted, however, that complainant's allegation of an increased hazard in weave room #3 is predicated upon a condition which arose subsequent to the initial inspection.

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DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, Dissenting:

I strongly disagree with the reasoning of the majority opinion which blatantly misconstrues expert testimony [*12] in this case, disregards the Administrative Law Judge's findings, and places upon the Secretary of Labor a burden of proof which may be impossible to sustain. I dissent from the majority's disposition because the record clearly establishes a failure to comply with 29 CFR 1910.95(b)(1) at the cited locations in respondent employer's textile mill.

In concluding that complainant failed to establish the technological feasibility of engineering controls the majority has ignored the superior credentials of the complainant Secretary of Labor's acoustical expert, unjustifiably rejected the Judge's findings predicated upon his crediting of this expert's testimony, and compounded these errors by misinterpreting both the basis and import of that testimony. In so doing, the majority has reached a result that is contrary to the weight of credible evidence and is inconsistent with the noise standard's requirement that an employer use feasible engineering controls.

Before evaluating the testimony regarding the technological feasibility of noise attenuation by means of engineering controls, it is essential that the credentials of the witnesses testifying on this matter be carefully examined. [*13] In my opinion, the majority has been neither accurate nor thorough in its examination. This is significant when one considers that my colleagues have overturned the Administrative Law Judge's credibility determinations and have rejected his findings regarding the availability of engineering controls.

Complainant's case-in-chief regarding engineering controls consisted almost entirely of the testimony of Dr. J. Ronald Bailey. The majority opinion's entire discussion of Dr. Bailey's qualifications to express an opinion on noise reduction through engineering techniques consists of the following single sentence:

Complainant's expert, an assistant professor of mechanical engineering, based his opinion on a textbook analysis of noise reduction techniques, his observation of noise reduction devices which had been installed under laboratory conditions, and a brief visit to the weave rooms of respondent's Lindale mill.

This is an incredibly misleading understatement of Dr. Bailey's qualifications and bases for forming an opinion. He is not, as urged by respondent and implied by the majority, an academic theoritician attempting to apply textbook concepts to an area outside his expertise. [*14]

Dr. Bailey's qualifications as an acoustical expert are impressive. He holds a doctoral degree in "sound and vibration." Since 1967 Dr. Bailey has either authored or coauthored 20 publications and reports dealing with both theoretical and applied acoustical engineering. These publications include such subjects as "Textile Industry Noise Control Guidelines", n10 "A Systems Approach for Determining the Feasibility of Industrial Noise Control through Engineering", n11 "Identification and Reduction of Punch Press Noise", n12 and "Experimental Investigation of the Statistics of Sound-Power Radiation in a Reverberant Room." n13 In addition to his research and writing, Dr. Bailey has served as an acoustical engineering consultant to numerous corporations and organizations such as the American Textile Manufacturers Institute, Fieldcrest Mills, Noise and Vibration Control Corporation, the Industrial Union Department of the AFL-CIO, and the United States Department of Labor. It is clear that Dr. Bailey is a highly qualified expert on the application of engineering noise reduction techniques to industrial machinery.

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n10 Bailey and Brown, "Textile Industry Noise Control Guidelines", 96 J. ENGINEERING FOR INDUS. 241-246 (1973), presented at the Textile Engineering Conference, Charlotte, N.C., April, 1973.

n11 Bailey, "A Systems Approach for Determining the Feasibility of Industrial Noise Control through Engineering", 54 J. ACOUST. SOC. AM. 301 (1973), presented at Eighty-Fifty Meeting of the Acoustical Society of America, April, 1973.

n12 Bailey, Daggerhart, and Smith, PROCEEDINGS OF INTER-NOISE 225-228 (1974).

n13 Bailey and Smith, "Experimental Investigation of the Statistics of Sound-Power Radiation in a Reverberant Room", 52 J. ACOUST. SOC. AM. 149 presented at the Eighty-Third Meeting of the Acoustical Society of America, April, 1974.

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Perhaps the most disturbing aspect of the majority's brief review of Dr. Bailey's qualifications, however, is the omission of any discussion of his experience in the field of noise reduction in the textile industry and, in particular, his expertise regarding the quieting of the two types of looms that were in use in the cited weave rooms. At the time of the hearing [*16] Dr. Bailey had completed nearly a year's work on a program funded by the National Institute for Occupational Safety and Health (NIOSH) entitled "Coordinated Textile Industry Noise Reduction Program." The first priority of this program was the analysis and control of loom noise. Indeed, at the time of the nearing, Dr. Bailey had conducted noise and control analysis studies on a Draper fly-shuttle loom (DFSL) that had been installed in a reverberation chamber at his university.

At footnote 6 of the majority opinion, the credentials of respondent's two experts are summarized. My colleagues refer to one expert as ". . . a textile engineering and management expert with over 40 years of experience with major textile manufacturers . . . ." There is no reference, however, to the fact that the witness, L. K. Fitzgerald, was trained as an electrical engineer and had neither formal nor informal training in acoustical engineering. Although, during his years in management he had acquired a working knowledge of various types of machinery in use in the textile industry, he had gained no specialized knowledge, either from study or practical experience, on the application of principles of [*17] acoustical engineering to quiet such equipment. n14 The other expert, referred to in the majority's footnote as respondent's "director of engineering" for 3 1/2 years, is Robert I. Uhl. The record is devoid of evidence indicating that Mr. Uhl had any specialized study or experience in acoustical engineering, or any other form of engineering. Mr. Uhl, a purchasing agent, was assertedly responsible for keeping abreast of all types of technological developments made by others within the textile industry. n15 His ability to testify on subjects such as technological feasibility was, therefore, premised entirely upon his understanding of the state of the art as conveyed to him by others.

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n14 Vol. VII Tr. 6-26.

n15 Vol. VIII Tr. 36-40.

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Judge Stuller recognized this disparity in expertise when, after discussing Dr. Bailey's testimony, he stated that:

Contradictory opinions to the above (Dr. Bailey's opinions) were given little weight. These opinions had little or no foundation in fact and were not persuasive.

In my opinion [*18] there is nothing in the record that would support the majority's implicit rejection of the Judge's evaluation. n16 Moreover, the majority errs in not more clearly considering the Judge's decision and the evidence on which it is based. Cinderella Career & Finishing Schools, Inc. v. F.T.C., 425 F.2d 583 (D.C. Cir. 1970).

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n16 At this juncture it is important to note that the Judge's evaluation in this regard relates only to the question of technological feasibility of engineering controls on Draper shuttleless looms (weave room #2). Judge Stuller affirmed this subitem of the citation. He vacated the portion of the citation alleging noncompliance with the standard in weave room #3, which contained 1,178 Draper fly-shuttle looms. But, Judge Stuller did not find that a significant noise reduction could not be achieved in weave room #3. Rather, he merely vacated the subitem because the reduction proven would not bring noise levels to within Table C-16 limits. His basis for vacating is therefore contrary to this Commission's interpretation of the noise standard in Continental Can Co., Inc., 4 BNA OSHD 1541, 1976-77 CCH OSHD para. 21,009 (Nos. 3973 et al., 1976), petition for review docketed, No. 76-3229, 9th Cir., Oct. 19, 1976. I submit that the Judge's findings support the affirmance of the subitem dealing with weave room #3 under the holding of Continental Can Co., Inc. Inasmuch as the majority discusses the proof as to both weave rooms together, I shall for the sake of clarity evaluate the evidence in the same fashion. I would not, however, disturb the Judge's findings of fact as to weave room #3. Rather, I would adopt them and reverse only the Judge's conclusion of law. See discussion infra.

[*19]

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With the relative expertise of the expert witnesses in proper perspective it is possible to evaluate the testimony regarding the technological feasibility of engineering controls in the two weave rooms. Analysis of the witnesses' testimony reveals the error in the majority's actions in reweighing the evidence and reversing the Administrative Law Judge.

Dr. Bailey methodically established the feasibility of engineering controls. n17 First, he identified the primary noise sources for both types of looms. He then demonstrated that there were acoustical engineering techniques that could be implemented to reduce the noise emanating from each noise source. Next, the cost and availability of materials necessary to reduce noise were shown. Finally, he testified that the suggested principles of acoustical engineering had been in existence for many years. Virtually all of Dr. Bailey's testimony was unrebutted by respondent's expert witnesses.

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n17 While I do not believe it is incumbent upon complainant to establish the economic feasibility of engineering controls, I note that a majority of this Commission would impose such a burden on complainant. I submit that Dr. Bailey established both the economic and technological feasibility of engineering controls. My discussion of economic feasibility in this opinion should not suggest that I consider the decision concerning that subject in Continental Can Co., Inc., supra, to be correct. It is not. See my dissenting opinion. But it is precedent.

[*20]

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A better understanding of the majority's error in rejecting this testimony can be achieved by examining the proof adduced by both parties on the subject of engineering controls in weave room #2. It is on this issue that the majority has squarely reversed Judge Stuller's determination that engineering controls were technologically feasible.

Weave room #2 contained 112 Draper shuttleless looms (DSL's) at the time of inspection. There was no dispute that the noise levels in the "weavers' alleys" in weave room #2 were measured at a continuous 97 decibels. n18 Dr. Bailey testified that the primary noise sources on the DSL's were the yarn guard shield, the taped wheel covers, and, to a limited extent, certain gears. Respondent's witnesses did not rebut this testimony. To the contrary, L. K. Fitzgerald expressly agreed with Dr. Bailey's identification of the two primary noise sources on DLS's. n19

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n18 Based upon Table G-16 in 1910.95(b)(1), the acceptable noise level for this weave room would be 90 decibels because respondent's weavers' shifts in the room were 8 hours.

n19 Vol. VII Tr. 71-72.

[*21]

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Having identified the noise sources on DSL's, Dr. Bailey proceeded to suggest methods of reducing noise at each source. Regarding the taped wheel covers, Dr. Bailey noted a specific technique that would be used to reduce noise. It involved the application of vibration-dampening materials to the taped wheel cover that would both reduce vibrations emanating from the cover itself and absorb sound on the inside of the cover. On cross-examination he testified that the necessary materials were readily available from at least three manufacturers at an estimated cost of $20 per loom. According to Dr. Bailey, the other primary noise source, the yarn shields, could have also been quieted easily. He testified that quieting yarn shields could be accomplished by using the same type of dampering material to be applied to the taped wheel covers. In fact, the $20 per loom cost for dampening materials included the necessary materials for the yarn shields as well as the taped wheel covers.

Dr. Bailey testified that these techniques and materials had been available for many years. Moreover, he opined that their [*22] application would, after development and testing, reduce the par loom noise by 5 decibels. n20 He then testified that this 5-decibels par loom should translate into an equivalent reduction in weave room #2, which contained 112 DSL's.

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n20 The majority opinion states that Dr. Bailey's estimate of a 5 decibels noise attenuation was based upon his opinions regarding the implementation of a noise reduction kit under development by the loom's manufacturer, Draper. This analysis represents a misunderstanding of Dr. Bailey's testimony.

As noted in the text, Dr. Bailey's estimate was based upon respondent's independent acquisition and application of dampening materials, not the installation of the kit. The kit consisted of techniques similar to those suggested by Dr. Bailey. It also consisted of other sound reduction techniques not included within Dr. Bailey's 5 decibel estimate.

Finally, it should be noted that in footnote 5 the majority compounds its misinterpretation of Dr. Bailey's noise attenuation estimate when it implies that Dr. Bailey's estimate was conservative when compared to the experimental trials of the kit. Of course, Dr. Bailey's estimate would be conservative when compared with a kit that incorporated principles in addition to those he suggested. Dr. Bailey did recognize that the manufacturer's trials yielded 8 decibel reductions with the basic kit and 14 decibels with the basic kit with options.

[*23]

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Respondent's witnesses did not offer any testimony directly contradicting that of Dr. Bailey. Rather, the thrust of their testimony was that the Draper sound reduction kits were still being tested and respondent was therefore unable to purchase prefabricated loom parts from Draper that would reduce noise emanating from the DSL's. This is stated succintly in the following colloquy between counsel for respondent and L. K. Fitzgerald, one of respondent's witnesses, upon direct examination:

Q: All right sir. On April 15, 1974 (the date of the inspection), was the engineering technology available that would permit a manufacturer to reduce a DSL weave room to 90 decibels or below?

A: It is my opinion that the engineering technology, the basic principles which pertain to the reduction of noise were clearly known, there was not available a change part from a loom supplier which would reduce the noise level of those looms.

Vol. VII Tr. 82. n21 In short, respondent's rebuttal was that it could not buy quiet looms. As will be expanded upon more fully below, the duty to reduce sound levels by engineering [*24] controls extends much further than merely waiting for machinery manufacturers to develop, test, and market quieter machinery.

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n21 This testimony obviously conflicts with the majority opinion's statement that respondent's "experts" opined that there was no technology available to respondent to reduce noise levels on respondent's looms. Respondant's witnesses testified only that respondent could not purchase prefabricated noise reduction components. This clearly does not mean that sufficient technology was not available to this employer to enable it to develop and implement engineering controls as required by the standard.

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Although I am unwilling to attach as much significance to Draper's experience with its prototype sound reduction kits as would the majority, I submit that its analysis of the testimony regarding the success of the kits is somewhat misleading. It is stated that Draper's field tests were unsatisfactory, and Draper "did not go forward with them." The record does not support this statement. Regarding [*25] the noise reduction kits for the DSL's, L. K. Fitzgerald testified only that it was his opinion that Draper did not intend to go forward with the kit in the same form as when initially tested in the field. n22 Fitzgerald could not testify as to why the initial field tests by Draper were unsatisfactory. n23 Respondent's witnessed did not, as implied by the majority, suggest that Draper had abandoned its development of a kit for either loom because of unsatisfactory field tests. n24 Indeed, Dr. Bailey testified that Draper was still in the process of testing and improving kits for the DSL's and the DFSL's. Dr. Bailey's testimony indicating promising results and the continuing development and testing of kits for both types of looms is unrebutted.

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n22 Vol. VII Tr. 74.

n23 Id.

This inability to identify the sources of Draper's problems with the kit is significant. As stated in note 20 supra and the accompanying text, Dr. Bailey's suggested noise reduction techniques were incorporated in some form along with other techniques in the Draper kit. Even if I were to assume that hearsay evidence regarding Draper's problems with the kit could rebut Dr. Bailey's opinions regarding the two techniques incorporated into the Draper kit, I note this clearly was not done inasmuch as Fitzgerald did not testify that the techniques posing problems for Draper were the same as those suggested by Dr. Bailey. From Fitzgerald's testimony it is equally plausible to conclude that Bailey's techniques were not the source of Draper's problems, but were, in fact, proven entirely effective during Draper's field testing.

n24 Mr. Fitzgerald's knowledge of the results of Draper's trials of its kit for DSL's is more impressive than his knowledge of the results of the trials of the kits for the DFSL's. As to these trials, he stated frankly: "I do not know the results of that. I have not seen it." See Vol. VII Tr. 65.

[*26]

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After reviewing the lengthy record in this case, including all the testimony regarding the Draper kits, Judge Stuller made the following statement regarding the technological feasibility of engineering controls to quiet the DSL's in respondent's weave room #2:

While it was not proven that the kits were still being sold, it was established that the materials for reducing the sound levels were readily available and could easily be fashioned into the component parts necessary to reduce the noise to acceptable levels. The evidence further indicated that the cost of such modification for each machine was low.

This conclusion is amply supported by the evidence of record. Moreover, I submit that there is absolutely no credible evidence on this record rebutting any of Dr. Bailey's opinions. At the very least, there is certainly insufficient expert testimony to support the majority's reversal of Judge Stuller as to the technological feasibility of engineering controls for the DSL's in weave room #2.

As stated at note 16 supra, Judge Stuller vacated that portion of the citation dealing with the DFSL's [*27] in weave room #3. Although the Judge credited Dr. Bailey's testimony regarding the availability of enginnering techniques that would quiet the DFSL's, he vacated the citation because the record did not reveal that implementation of these techniques alone would reduce noise levels to within "acceptable limits." In so holding, the Judge misinterpreted 1910.95(b)(1). In Continental Can Co., Inc., supra, a divided Commission held that engineering controls must be implemented even though the controls implemented will not reduce sound levels to the limits specified in Table G-16 of 1910.95(b)(1). The noise level in weave room #3 was a steady 103 decibels in the "weavers' alleys" whereas the maximum permissible 8 hour level is 90 decibels. Dr. Bailey testified that implementation of certain techniques would achieve a noise reduction of 5 decibels from each of the 1,178 DFSL's in weave room #3. n25 While the reduction would not bring respondent into full compliance, it is sufficient to trigger the duty to implement controls even under the test suggested in footnote 7 of the majority opinion. Accordingly, I would reverse the Judge's conclusion of law that the evidence did [*28] not establish noncompliance with 1910.95(b)(1) in weave room #3.

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n25 Dr. Bailey's testimony regarding this subject was even more persuasive than the similar analysis he perforved with DSL's because he had the opportunity to examine a DFSL in his own laboratory. As with the DSL's in weave room #2, he opined that a 5 decibel reduction per loom on the DFSL's in weave room #3 would translate to a similar reduction throughout the room. As with his testimony concerning the DSL's, his expert opinions on the specific noise reduction techniques for DFSL's are unrebutted on this record. Accordingly, I would accept his testimony.

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The majority's bases for vacating but noise citations at issue are unclear but are in any event incorrect, as explained below.

The record is clear that at the time of inspection respondent was engaged in no efforts to develop and apply acoustical engineering techniques to either of its weave rooms despite the fact that evidence offered by both parties shows that such techniques were known and their [*29] application would, after development and testing, result in significant noise attenuation at various noise sources on the looms. n26 Indeed, the gist of respondent's whole argument was that a third person, namely Draper, had not yet developed, tested, and marketed kits incorporating such techniques. If my colleagues have been persuaded by this argument, I maintain that they have erred as a matter of law.

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n26 The majority notes testimony of respondent's engineering director Uhl indicating that respondent has attempted to "retrofit the looms with various acoustical materials, fiber gears, and cushion pads." Reference to this portion of Uhl's testimony (Vol. VIII Tr. 40-43) reveals a failure to set forth any specific details as to what attempts were made, when they were made, and why they proved unsuccessful. Indeed, the essence of Uhl's testimony on this matter was merely that at some unspecified points in the past respondent had installed acoustically designed replacement parts (retrofits) that had been developed by outside sources.

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The Act places upon employers the primary responsibility for the safety and health of their employees. This responsibility includes an affirmative duty to take all steps possible to protect employees from hazards in the workplace. n27 Such a duty is included within the noise standard, although the steps to be taken by the employer are expressed in terms of feasibility rather than possibility. Thus, an employer's compliance responsibilities under 1910.95(b)(1) include at least the adaptation and application of existing technologies to reduce excessive noise in the workplace. Continental Can Co., Inc., supra (Cleary, Commissioner, dissenting). Where, as here, feasible engineering techniques and materials capable of reducing excessive noise exist, an employer has an affirmative duty to apply those techniques and materials. The employer cannot sit idly by in the face of such knowledge and wait for others to develop for the marketplace engineering control methods that are adaptable to his particular worksite. n28

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n27 Section 5 of the Act.

n28 In this regard I note that the mere fact that Draper is presently engaged in the latter stages of development and testing of noise reduction kits for DSL's and DFSL's contributes to proving respondent's noncompliance with the noise standard because Draper's efforts establish the existence of technology that can be adapted to respondent's looms. The record is clear, however, that respondent has engaged in no independent development and testing to quiet its /1/78 DFSL's and 112 DSL's.

[*31]

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Permitting such inaction preserves the status quo and shifts the duty of abatement to outside sources having no responsibility for the safety and health of affected employees and whose incentive to develop engineering controls depends on factors n29 having no relationship to the safety and health of employees.

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n29 Some examples are the internal availability or funds for research and development and the projected marketability and profit of the finished product. Both, of course, could significantly affect the pace of research and development.

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The majority exaggerates Dr. Bailey's candid qualification of his own expert opinions. After setting out an achievable approach to noise reduction on both types of looms and expressing an opinion on the translation of a per loom reduction to the entire weave room, Dr. Bailey qualified his opinion to the extent that he would not recommend immediately equipping all respondent's looms with the suggested [*32] sound reduction devices. Rather, he would recommend the testing of a prototype loom incorporating various sound reduction techniques before full-scale implementation. n30 As such, Dr. Bailey was plainly taking a practical approach to the development, testing, and implementation of noise reduction techniques, an approach which has been incorporated into abatement plans undertaken to satisfy employers' abatement requirements under the standard. This in no way detracts from the force of his testimony that the noise reduction techniques he suggested have been tested and proven effective in numerous other applications and should therefore prove to be equally effective when applied to respondent's looms after appropriate development and testing. It defies common sense to expect complainant to establish conclusively in every noise case involving engineering controls that proven noise reduction techniques exist, that they will be completely effective in an employer's particular facility, and that they will achieve a specific overall noise reduction at the worksite. n31 In order to sustain the burden of proof required by the majority it would be necessary for complainant not only to undertake [*33] extensive independent research and development of noise reduction techniques for each industry in which excessive noise poses a problem but also to enter each worksite to conduct further testing in order to determine how to apply such techniques in a particular work environment. Obviously, complainant was never intended to shoulder such a burden inasmuch as it would result in a complete frustration of the Act's statutory purpose. 29 U.S.C. 651(b)(2).

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n30 Vol. VI Tr. 198-9.

n31 Such a requirement ignores the realities of the problem of noise attenuation in an industrial setting, which involves the interplay of a myriad of variables apart from the noise sources themselves. Factors such as the relative spicing of machinery, the size of the room in which the machinery is located, and the scoustical properties of the floors, walls and ceilings all must be analyzed before a specific noise reduction can even be predicted, much less proven.

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Nevertheless, this seems to be precisely what the majority would require in [*34] this case when it observes that:

The recommendations of complainant's expert, which had never been tested in an operating weave mill, present the mere possibility that, if they were implemented, noise levels would be attenuated.

Dr. Bailey's virtually unrebutted expert testimony indicates that there was a strong probability that the suggested engineering methods would substantially attenuate noise levels in respondent's weave rooms. Thus, on this record the gist of the majority's real objection to Dr. Bailey's expert testimony can only be his inability to set forth engineering controls that have actually been tested in an operating weave mill. As noted, this could never be proven by complainant's experts and the majority errs if it would require such a showing in a noise case involving engineering controls. Complainant should not be faulted for failing to adduce proof of test results in operating weave mills when such testing as a result of an individualized developmental program is precisely what is required of respordent under the noise standard. All complainant need show is that respondent failed to develop and implement feasible engineering controls even though the technology [*35] existed to support a noise abatement program. n32 This was shown here. Accordingly, I would affirm both citations.

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n32 See note 28 supra.

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Finally, I disassociate myself from the majority's discussion of the economic feasibility of administrative controls. Inasmuch as the evidence of record in this case supports a finding that engineering controls were feasible and preferable to administrative controls, I see no need to address the secondary question of administrative controls.