UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 78-2470

MEADVILLE FORGING COMPANY,

 

 

                                              Respondent.

 

 

July 20, 1979

ORDER

            The Secretary’s motion dated June 25, 1979, to withdraw his Petition for Discretionary Review is Granted. The Judge’s Decision is affirmed and is accorded the precedential value of an unreviewed Judge’s Decision, pursuant to the Commission’s Decision in Potlatch Corp., —— OSAHRC ——, 7 BNA OSHC 1370, 1979 CCH OSHD para. 23,549 (No. 77–3589, 1979) and cases cited therein.

 

FOR THE COMMISSION:

 

Ray H. Darling, Jr.

Executive Secretary

DATED: JUL 20, 1979

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 78-2470

MEADVILLE FORGING COMPANY,

 

 

                                              Respondent.

 

February 14, 1979

DECISION AND ORDER

Chalk, Judge

            Respondent has moved for summary judgment on the ground that Complainant, in his responses to requests for admissions, has conceded that he cannot carry his burden of proof.[*]

            This case involves a failure to abate notification, as amended, with a proposed additional penalty of $5,200, based upon a reinspection that took place between February 2, 1978 any May 3, 1978. The single item of the basic citation that Respondent is alleged not to have abated reads as follows:

29 CFR 1910.95(b)(1): Employee(s) were subjected to sound levels exceeding those listed in Table G–16 of subpart G of 29 CFR part 1910 and feasible administrative or engineering controls were not utilized to reduce sound levels within those of the table:

(a) Forgers, forger helpers, furnace heater and rotoblast operator working in the Press Department.

 

(b) Forgers and forger helpers working in the Hammer Shop.

 

(c) Cleveland and advance operators working in the Shear Department.

(Emphasis added.)

 

            Final abatement was to have been accomplished by November 4, 1977.

            Referring to that portion of the foregoing basic charge that alleges that Respondent had failed to utilize feasible administrative or engineering controls to reduce the sound levels to which its employees were exposed to within allowable ones specified in the standard’s table, Respondent, in part, presents a twofold argument: (1) that the standard does not require that such controls reduce excessive levels to those within the table, and (2) that Complainant, by his responses to requests for admissions, concedes that he knows of no administrative or engineering controls that will accomplish that which the basic citation requires.

            The standard does indeed read as Respondent claims:

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.

 

            Moreover, an examination of Complainant’s responses to the request for admissions confirms Respondent’s other assertion that Complainant knows of no administrative or engineering controls that will accomplish the result required by the basic citation.

            As the basic citation had become a final order of the Commission, there can be no doubt that the form of that charge cannot now be altered and that it is the only charge on which the present failure to abate proceeding stands or falls (see Secretary of Labor v. B. W. Harrison Lumber Co., et al., 569 F.2d 1303 (5th Cir., 1978)).

            As Complainant bears the burden of proving that administrative or engineering charges are feasible (Secretary v. Continental Can Co., Inc., 76 OSAHRC 109/A2), and he now admits that he cannot carry this burden in connection with the failure to abate notification, said notification must be vacated.

            Respondent’s motion for summary judgment is granted and Notification of Failure to Correct Alleged Violation and of Proposed Additional Penalty, as amended, is vacated.

 

So ORDERED.

 

JOSEPH L. CHALK

Judge, OSHRC

Dated: FEB 14, 1979

Hyattsville, Maryland


[*] Although granted an extension until January 6, 1979 to respond to the motion, Complainant did not file a response until January 17, 1979. Said response does not appear to address the issue raised. The Union has filed no response.