UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 13068
PABST BREWING COMPANY,
Respondent.

July 25, 1978

DECISION AND ORDER ON REMAND

APPEARANCES:

Stephen J. Simko, Jr., Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant.

Mr. J. D. Fleming, Jr., Esquire, Sutherland, Asbill and Brennan, Atlanta, Georgia, on behalf of respondent.

STATEMENT OF CASE

LARKIN, JUDGE

This case is on remand from the Occupational Safety and Health Review Commission (Commission). Respondent (Pabst) operates a brewery at Perry, Georgia. On April 7, 1975, Pabst as cited [2] for a non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (Act) for failure to conform with 29 C.F.R. § 1910.95(b)(1).[3]

The areas left in issue are Filling Rooms, I, 2, III East and III West.

In Filling Room I, cans are filled with beer in two 100-spout fillers, operating at a rate of approximately 90,000 cans per hour each, for a total filling rate of approximately 180,000 cans per hour. Two employees operate these fillers. In Filling Room 2, cans are filled with beer in two 88-spout fillers, each of which processes approximately 72,000 cans per hour, for a total filling rate of approximately 144,000 cans per hour. Two employees operate these fillers. After being filled, the cans from Filling Rooms I and 2 move to a pasteurizer outside of the filling rooms. Twelve-ounce non-returnable bottles pass from a bottle sterilizer into Filling Room III East, where they are filled in a 72-spout filler at a rate of approximately 42,000 bottles per hour. One employee operates this filler. Returnable and non-returnable bottles, primarily 12-ounce returnable bottles, pass from the bottle sterilizer into Filling Room III West, where they are filled in a 100-spout filler at a rate of approximately 36,000 bottles per hour. Two employees, one to operate the filler and one to operate a soaker-discharger, work in Filling Room III West. After being filled, bottles pass from Filling Rooms III East and III West into a pasteurizer.

Filling Rooms I and 2 are approximately 40 feet by 70 feet. Filling Rooms III East and III West are approximately 40 feet by 60 feet. The rooms have concrete block walls with plaster ceilings.

The Packaging Center normally operates on three daily eight-hour shifts. All of the fillers are operated about 70% of the time during the day shift. As few as two fillers may be operated on a shift and it is rare that all of the fillers are run except on the day shift. The operators normally spend between 6.5 and seven hours per shift in the filling rooms. Other personnel come into the filling rooms, including maintenance, utility, clean-up, and supervisors but their exposure time is not in issue.

In Filling Rooms III East and III West, the operators monitor the filling operation. They correct bottle jams and feed crowns at the crowner chute. The operators move along a platform 12 to 14 feet long. If problems occur they spend 70% to 80% of their time at the crowner, two to four feet away from the filler. Otherwise, they spend approximately 50% of their time at the crowner.

In Filling Rooms I and 2, the operators feed lids to the canning machine and monitor along an 18-foot platform. Approximately 60% of the time is spent feeding lids to the seamer and 40% is spent at other locations. The operators feel the cans to detect indentations and remove foreign material in the seamer causing the problem. The operator must clear jams, sometime to the extent of using crowbars. The can lines run approximately 70% to 75% of the time.

The noise measurements on March 12, 1975, and June 23, 1977, in the four filling rooms were as follows:

Room III West

Noise Levels

Location

98-105

platform

platform - cap machine

102

platform - filler area

98-101

platform - soaker discharge

98-100

floor - between conveyor and soaker discharge

Room III East

103

platform - filler

98-102

platform

101.5

platform - machine running and not filling

Room 2

91-92

platform - machine running and not filling

97-98

platform - machine filling

97.5

east machine - cap filling location

97-98

filler area

between filling machines

behind machine

Room I

102-103

west machine - filling platform

102

between machines

101-103

east machine - platform

101

east doorway

102

conveyor line - between machines

In areas of possible excessive noise, signs requiring hearing protection are posted and Pabst employees are required to use personal hearing protectors.

The workers in Filling Rooms I, 2, III East and III West wear muffs. These muffs will lower noise at the eardrum by at least 30 dBA or to a level between 68 and 72 dBA.

On June 23 and 24, 1977, Dr. Thomas H. Melling, Hampshire, England, agreed upon by the parties as an expert in acoustical engineering and noise control in breweries, inspected Pabst’s facility to determine the feasibility of engineering controls to reduce the noise levels. Dr. Melling’s report was received into evidence by agreement of the parties.

Two components make up the noise level in a room with machinery running. The first is the direct noise from the machines. The second is the reverberant level produced by all of the noise sources in the room. The direct noise level at the operator’s ear decreases as he moves away from the machine. If the machine is compact, such as a motor or a pump, the direct noise level decreases by approximately six dBA with each doubling of the distance from the center of the machine. For example, if the direct noise level is 102 dBA when the operator is two feet from a pump, it falls to 96 dBA when he moves to four feet from the pump. If the machine is elongated rather than compact, such as in the case of a conveyor line, the direct noise level decreases by approximately three dBA for each doubling of the distance of the operator from the center of the machine. For example, if the direct noise level is 102 dBA when the operator is two feet from a conveyor, it falls to 99 dBA when he moves to a distance of four feet. The reverberant sound level is constant throughout the room and does not depend on the location of the operator.

Noise levels in dBA cannot be added directly. Instead, the total sound power must be determined by adding the power from each source. The total noise level can then be calculated from the equation:

L = 10 log (P/C)

where L is the sound level in dBA, P is the sound power, and C is a constant. As an approximation, a doubling of the sound power will increase the total noise level by approximately three dBA. If a room contains two machines, each of which produces a sound level at a given position of 90 dBA, the total resulting sound level will be 93 dBA. Similarly, if the direct sound level at an operation’s position is 95 dBA and the reverberant sound level is 95 dBA, the total sound level at that position will be approximately 98 dBA.

The foregoing considerations indicate that the sound level at the operator’s position in a room containing machinery will be made up of the reverberant sound level and the direct sound level produced by the machines. If either noise component greatly exceeds the other, that component will be the major contributor to the total sound level and efforts to reduce the total sound level will depend on taking steps to reduce the predominating component. If both components are of comparable magnitude, reduction of the overall noise will require reduction of both components.

The direct noise level may be reduced by a properly designed shield or enclosure which separates the operator from the sound source. In some cases, it may also be possible to redesign or modify the equipment in order to decrease the direct sound power which is emitted. The reverberant level may be decreased by installing sound absorbing materials in the room in order to absorb a portion of the reverberant sound energy.

Dr. Melling concluded:

The filling rooms would require treatment to reduce both the reverberant noise level and the direct noise level. For each filling room, absorptive treatment is necessary to reduce the reverberant noise level. The absorbent material specified was a textured vinyl coated tile manufactured by Owens Corning, Inc., having an absorption coefficient of 0.6. For the bottle filling rooms, Filling Rooms III East and III West, the direct noise level could be reduced by enclosing the bottle conveyors with ‘Clear & Quiet’ panels produced by Body Guard, Inc. The Body Guard panels are made of corrugated clear plastic, with wedges of plastic-capped foam in the corrugations. The direct noise from the crowner could be decreased by installing a shield made of plastic material similar to that used in the Body Guard screens and the Holstein and Kappert crowner could be modified to reduce the direct noise level by rebuilding the crown injection system. For the can filling rooms, Filling Rooms I and II, the direct noise level from the seamer could be decreased by covering the seamer opening with a plastic material similar to that used in the Body Guard shields. Also, the direct noise level could be reduced by enclosing in metal enclosures hydraulic power packs, used to operate the fillers.

The engineering controls were itemized and the cost estimated by Dr. Melling as follows:

AREA

RECOMMENDED TREATMENT

COST ESTIMATE

Filler Room I

1130 ft ² absorptive treatment to walls/ceilings

$ 720

Screens over seamer open areas

$ 800

Enclosures for hydraulic power packs

$2,000

Filler Room 2

1130 ft ² absorptive treatment to walls/ceilings

$ 750

Screens over seamer open areas

$ 800

Enclosures for hydraulic power packs

$2,000

Filler Room III East

2200 ft ² absorptive treatment to walls/ ceilings

$1,500

Bottle conveyor covers

$1,200

Conveyor screens at filler/crowner

$1,000

Filler Room III West

2600 ft ² absorptive treatment to walls/ ceilings

$1,500

Modifications to H & K Crowner

$3,000

Conveyor screens at filler/crowner

$1,000

TOTAL

$16,270

The cost estimate was obtained by Dr. Melling by talking with proposed suppliers by phone.

As an experiment to test Dr. Melling’s proposals, Pabst installed the above recommended applications for Filler Room III East adding an additional 100 square feet of absorptive tile. The installation cost Pabst $9,815. Based upon the difference between Dr. Melling’s cost estimate and Pabst’s actual cost experience, the total cost of application of the four rooms would be $43,160 in lieu of Dr. Melling’s estimate of $16,270. This would indicate a cost of the controls per employee of $1,570 per employee for Filling Room I; $1,556 per employee for Filling Room 2; $3,272 per employee for Filling Room III East; and $2,432 per employee per employee for Filling Room III West.

During the period from 1974 through October, 1977, Pabst spent a total of $6,100.90 to provide 266 employees with personal hearing protectors at an average annual cost per employee of $6.12.

Engineering predictions are made by either theoretical predictions, empirical predictions or a combination of both. A theoretical prediction is based on a fundamental analysis of physical phenomena. An example of a theoretical prediction is the knowledge that the amount of force necessary to accelerate a mass at a given rate is equal to the product of mass and acceleration. Because theoretical predictions are based on physical phenomena fully explained, they tend to be very accurate. In many practical situations, the controlling factors are too complex to permit theoretical analysis. In such a case, it is necessary to make an empirical prediction based on experimental data correlated in an orderly fashion. With empirical predictions, it is not unusual to find errors of 20%. If theoretical predictions are used without all of the conditions known accurately or if empirical predictions are used, an error must be anticipated in the prediction. The techniques which Dr. Melling used in his study were based on theoretical equations interpreted and applied by using empirical predictions. This prediction makes heavy use of experience and calls for the application of judgment. Because judgment is involved, predictions would vary some between consultants. Dr. Melling anticipated his predictions could error as much as 2 dBA in sould level and 60% in sound power.

Dr. Melling predicted that the engineering controls which he specified could reduce the noise level in all four filling rooms to 91.5 dBA. With Dr. Melling’s estimate of as much as 2 dBA error in his predictions, the actual noise level resulting from implementation of the controls could be as high as 93.5 dBA.

If the noise level in the filling rooms could be reduced to 91.5 dBA by implementing the controls specified by Dr. Melling, the allowable exposure time without personal hearing protectors would be 6.5 hours. Theoretically, a worker exposed to 91.5 dBA for 6.5 hours would not need to wear personal hearing protectors. The normal work day at Pabst consists of eight hours with a lunch break of 30 minutes and two 15-minute coffee breaks. On days with no equipment malfunctions, the workers are exposed for seven hours. Because of the possibility of error in Dr. Melling’s calculations and an exposure on some days of seven hours instead of 6.5 hours used by Dr. Melling, the filling room employees would need to continue wearing personal hearing protectors.

In assessing the effect of a change in sound level, the term ‘doubling rate’ is used to indicate the sound level decrease, in dBA, which decreases the effect by one half. A doubling rate of three dBA is internationally recognized as the proper doubling rate to be used in assessing the effects of a change in sound level on hearing damage. Under this criterion, hearing damage is a direct function of the sound power level or the sound energy level.

Using a doubling rate of three dBA, the percent change in sound power or sound energy which results from a change in sound level from L1 dBA to L2 dBA is given by

Delta P = 100(10.IL2/10.IL1-1)

To evaluate the effectiveness of a particular noise control, a cost-benefit ratio, in dollars per percent of sound energy reduction, may be calculated by dividing the cost of the control of each protected worker by the percent of sound energy reduction. A high ratio indicates that the control is costly compared with its benefits.

Pabst administers pre-employment audiometric tests to all new employees and annual audiometric examination to employees who are employed in high noise areas. If any hearing problems are detected, the company refers the employees to the company physician. Pabst has invested over $5,000 in equipment used in the hearing conservation program and spends over $3,000 annually on audiometric tests. The annual cost of the audiometric examination program is $7.58 per employee tested.

Pabst has experienced no difficulty in insuring that its employees use personal hearing protectors. No workmen’s compensation claims for hearing impairment have been made.

The Secretary has never adopted any regulations, rules, interpretations, guidelines or standards to define the meaning of the term ‘feasible’ administrative or engineering controls.

It is the Secretary’s practice not to give employers any guidelines or information which identify feasible controls when a citation is issued. That practice was followed in this case.

Neither the citation nor the complaint specified the noise levels alleged to exist at the cited locations, the amount of reduction in noise levels which complainant expected Pabst to accomplish, nor any method of noise control which Pabst could implement in order to abate the alleged violations.

An abatement period cannot be specified until a specific control is identified, a supplier is located, and the delivery and installation times have been determined. The one-year abatement period proposed in this case was not based on any analysis of these factors.

The abatement period of one year in this case was selected because it was customary to set a one-year period since such a period did not require the approval of the OSHA regional office.

ECONOMIC FEASIBILITY

The ultimate decision in the case rests upon whether the government has carried its burden of proving that the proposed engineering controls are ‘economically and technologically feasible.’ It is concluded that the Secretary has not carried that burden.

Although bound by Commission precedent[4] it is difficult to ignore without comment the validity of respondent’s argument that the term ‘economic feasibility’ is so vague that it violates the due process clause of the Fifth Amendment. Respondent argues:

In order for the Commission to hold that the term ‘feasible’ is sufficiently definite, the meaning of the included term ‘economic feasibility’ must be sufficiently clear that it need not be defined by statute or regulation in order to inform an employer what he must do to avoid a violation.

The relevant criteria were stated by the Tenth Circuit, in the specific context of OSHA standards, in Brennan v. Occupational Safety and Health Review Commission, 505 F.2d 869 (10th Cir. 1974). The basic rule is:

‘A statute which is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process. This rule applies to regulations.’ 505 F.2d at 872 (citations omitted).

The decision as to whether or not a standard meets this test is ‘governed by the ‘reasonable man’ concept.’ Id at 873. The noise standard is not impermissibly vague if a reasonable person could decide whether or not a noise control measure is ‘economically feasible.’ Respondent respectfully submits that neither complainant, respondent nor even the Commission can reasonably make that decision.

‘. . . it should be noted that complainant has never promulgated any regulation, rule, interpretation, guideline, or standard in order to advise the public what ‘feasible’ means. . . .

‘Respondent respectfully submits that the noise standard does not ‘delineate its reach in words of common understanding.’ Brennan v. Occupational Safety and Health Review Commission, 505 F.2d 869, 872 (10th Cir. 1974). When a panel of experts selected by complainant cannot agree on what ‘feasible’ means, and when complainant’s own industrial hygienist states that ‘it’s a vague term’ which he cannot evaluate, it would be ludicrous to hold that ‘feasible’ is a word of common understanding. No reasonable man, no employer, and not even a reasonable expert can be held at his peril to know what he is commanded to do by a standard which directs him to employ ‘feasible’ noise controls.’

The Commission has stated its position in Turner Co., supra, by quoting the following except from the case of Union Camp Corporation, supra:

‘Any standard given the necessary specificity, as respondent suggests, to meet the objection of one employer would be necessity contain variable factors which would call for different conclusions by different employers under different or even the same circumstances. It is manifest that engineering or administrative controls can not be specified to meet the varying noise levels of every employer. Yet all must be subject to regulation if the objective of the Act is to be achieved. How does one accomplish this objective? Requiring specifications as to how to reduce noise levels for every known sound in excess of the permissible limits would be an insurmountable obstacle to the enforcement of the Act. The objective of the Act would be totally frustrated insofar as noise exposure is concerned. Thus the standard must necessarily be expressed in general terms and depend for its application upon the circumstances of each case. The employer is required to think and use his expertise gained in the operation of his business in order to comply with the standard. This is not grounds for declaring a standard vague and unenforceable. Due process does not require that an employer be informed as to every course of action he is to take.’

It is difficult to understand how the compounding of mass confusion furthers the purposes of the Act. Failure to force the government to establish guidelines in the noise field will result in many years of useless litigation with the ultimate cost passed on to the American consumers and especially the American worker already being destroyed in an economy out of control.

Respondent correctly points out that what is meant by the term ‘economic feasibility’ will be as varied as the number of people questioned. To compound such mass confusion by failing to force the government to set forth guidelines in the noise field is especially devastating to the small employer fighting for survival in an attempt to comply with the regulations of a myriad of government agencies.[5]

How is the small employer to handle the situation? How is the small employer going to know how to proceed as to his noise problem? To be exact, to find out what is required under the present regulation and Commission position, ultimately requires litigation because each employer, of necessity, cannot know what ‘economic feasibility’ means as to his individual operation. His first recourse must be an appeal to the Commission. There as is obvious in the Turner case, supra, his problem is only compounded. The Secretary contends that ‘economic feasibility’ is limited to whether the costs of the controls would result in putting the employer out of business. See Castle & Cooke Foods, A Division of Castle & Cooke, Inc. supra. Each Commissioner has his own ideas. Then, as in Turner, the case is reversed by the Court for the Commission to define the term ‘economic feasibility’ as to the specific facts in issue and the whirlwind begins again. By then the complexity of the Commission has changed with a new member who probably has his own concept of what is meant by ‘economic feasibility.’ In the interim litigation costs mount and emphasize to an attorney properly representing large or small employer that his client may never know what the term ‘economic feasibility’ means as applicable to his business because he does not have the financial resources to find out—and this is due process under the Constitution . . . to put the situation in the vernacular ‘Thomas Jefferson would turn over in his grave.’

Again, it is mere folly to say that the government cannot tell its citizenry what is expected of them in the noise field. The Secretary in this case has brought an internationally recognized expert in the noise field from England at a probable fantastic cost to defend against the vagueness of the regulation. This witness has joined the horde of other persons in expressing his understanding of what is meant by the term ‘economic feasibility.’ If this witness can establish criteria in this case, then the government could use him to establish published regulations applicable to the industry. Rather than expend vast sums of money in expert witness fees and litigation costs, wouldn’t the purposes of the Act be far greater served by recognizing that the regulation ‘. . . is so vague that men of common intelligence must necessarily guess at its meaning’ and violates due process?

Guidelines must be established. If not done on an administrative level, it will have to be done by the Courts. The Commission rather than fulfilling its statutory role as a quasi-judicial body has attempted to establish guidelines as the alter ego of the Secretary. This function instead was placed by Congress with the Secretary who has statutory authority to make law by issuing regulations that must muster due process.

The ultimate effect of the regulation is that government is saying to its citizenry ‘you tell government what is meant’ rather than the government telling its citizenry. For the citizenry to find out what ‘economic feasibility’ means legally it must litigate. This is not government by and for the people, this is people subservient to and for government.

The Commission attempts to soften the impact of its position by stating to the employer, you spend what may amount to thousands of dollars to apply controls and if your efforts are unacceptable to a government inspector, your good faith attempt will be rewarded by the Commission as the proposed penalty which can not exceed $1,000 under section 17(c) of the Act will be adjusted. See footnote 12 of the Commission’s decision in Turner Co., supra.

Due process ultimately means fairness. There is no way that fairness can be found regarding this regulation whether applicable to the Secretary, the Commission, the worker or the employer. Instead, ridiculous position after ridiculous position will be justified on the grounds it is a public act involving safety and health. Does such purpose justify that the basic concepts of a democracy as protected by the Constitution should be ignored? The purposes of the Act can not be furthered by attempting to uphold such a vague and indefinite regulation.

However, being bound by Commission precedent, an attempt will be made to determine whether the proposed controls in this case are ‘economically feasible.’ The Commission has expressed ‘economic feasibility’ in terms of a ‘cost benefit’ concept. More specifically the Commission stated in Continental Can Co., Inc., supra:

. . . any significant reduction in ambient noise levels which are above G–16 limits will tend to provide some protection to the hearing of employees. But we cannot overlook the fact that protection against most of the detrimental effects of excessive noise can be achieved through the use of a relatively reliable and convenient type of personal protective equipment. Additionally, the effects of excessive noise are gradual rather than sudden, and a certain amount of exposure to continuous noise levels as high as 115 dBA is permitted by the standard itself.

Other factors to be considered in the benefits which noise reduction will achieve include the number of employees exposed to excessive noise, and the net reduction in their exposure which engineering or administrative controls can reasonably be expected to produce. As to the last noted factor we would emphasize that the benefits to be obtained will vary according to the magnitude of the noise levels existing prior to the imposition of controls. Cost factors which must be considered include both the direct costs of installing and maintaining controls, and indirect costs due to any loss of productivity or efficiency resulting from their implementation. This list is not meant to be all-inclusive. We cannot here establish specific guidelines which will be applicable to all cases. The ultimate determination in each individual case must be made by weighing all the relevant factors in light of the objectives of the Act.’

As to the merits, the Secretary contends:

1. Pabst exposed its employees to noise levels in excess of those listed in Table G–16.

2. Pabst failed to utilize feasible administrative or engineering controls to reduce noise levels and 21 employees were exposed to levels two to four times those listed in Table G–16.

3. The government does not have to prove that administrative or engineering controls are economically or technologically feasible, but even assuming that it does, it has carried that burden, and

4. The controls recommended by the government’s expert were available at the time of the initial inspection.

In response to the Secretary’s first and second arguments, Pabst concedes that the noise levels in the areas in issue exceed the levels listed in Table G–16. Instead, Pabst points to the protection afforded by personal hearing protectors and the fact such protectors lower the sound levels at least 22 dBAs below the engineering controls proposed by the expert.[6]

The parties are in substantial disagreement as to the Secretary’s third argument and it will be considered in conjunction with Pabst’s contentions.

Pabst does not pursue the argument on brief that the proposed controls were not available at the time of the inspection. With exception of the H & K crowner, Dr. Melling testified that similar materials were being used in Europe prior to the inspection date.

There are other areas of controversy as to the facts that must be reconciled. Most crucial to the case is whether the proposed controls will eliminate the need for personal hearing protectors. The Secretary assumes this fact on brief and it is concluded it is not supported by the weight of the facts of record. Pabst contends that even accepting the expert’s findings, personal protectors must still be worn. Pabst’s position is supported by admissions of Dr. Melling and testimony of Pabst’s safety director. The expert’s findings were based upon a 6.5 hour day and a conclusion that the controls would lower the sound levels to 91.5 dBA. The 91.5–dBA level is the maximum permissible exposure time for 6.5 hours under Table G–16. The expert admitted a margin of error and obviously there would have to be some margin of error in speculating as to the ultimate sound reduction of untested controls. This possible error was estimated by Dr. Melling at 1% to 2% in sound level or 60% in sound power (Tr. 211). Also, on some days the employees are exposed for at least seven hours. For these reasons the expert conceded:

‘Q So if in fact your prediction is off as much as 2 DB’s and this is what is found when the controls are tested, then this is the allowable time. This is the average time, so that on the average they’re overexposed one and a half hours, and on maximum days they’re overexposed for two hours?

‘A Yes.

‘Q Now, based on all of that, if you’re responsible for the safety program at this plant, surely you’re not going to let the employees discontinue the use of hearing protectors? That’s fair to say, isn’t it?

‘A That’s fair to say.

‘Q And in fact, unless you could have a very convincing safety factor in here you probably would not want [to] risk the health of your employees enough to discontinue the use of hearing protectors, is that right?

‘A That’s right.’ (Tr. 219)

The parties are in disagreement as to the estimated costs of the proposed controls. Dr. Melling obtained his estimated costs by telephoning proposed suppliers. Pabst installed the proposed controls in Filling Room III East. The actual experience of Pabst would be entitled to greater weight than cost estimates obtained by phone due to the possibility of misunderstandings and misconceptions that are likely to occur during phone conversations.[7] Pabst’s actual cost for Filling Room III East are more reliable to use as a basis for arriving at ultimate estimated costs.

In support of his contention that the proposed controls are ‘economically feasible,’ the Secretary relies heavily upon the maintenance cost of $5,000,000 expended by Pabst annually and the original equipment costs of approximately $1,800,000 to $2,000,000. The Secretary argues that one percent of capital costs of the equipment is convincing that the costs of proposed controls are ‘economically feasible.’

Pabst argues that the ‘cost-benefit’ concept should be applied by comparing the cost per dBA reduction per employee provided by personal hearing protectors against the cost per dBA reduction per employee pr vided by the proposed controls. Pabst points out that the ‘cost-benefit’ concept must be considered in the light of whether the proposed controls will eliminate the wearing of the personal hearing protectors. Pabst emphasizes that personal hearing protectors reduce the sound levels 22 dBA below the threshold limits at a cost of $6.12 per employee, while even the Secretary’s most optimistic cost figures show $592 per employee and will not eliminate the wearing of the personal hearing protectors.

The Secretary’s argument that the costs of the controls are reasonable when considered in the light of Pabst’s annual maintenance costs and the capital costs of the equipment adds little to a ‘cost-benefit’ concept. Sizeable capital and maintenance costs are at most indicative that an employer can afford the controls. Pabst does not challenge this fact and the Commission majority has rejected the Secretary’s argument that ‘economic feasibility’ is limited solely to ability to afford the controls. See Continental Can Co., Inc., supra.

Pabst’s approach does add significance to a ‘cost-benefit’ concept. If cost per dBA of reduction is considered in the light of benefit to each employee, some guideline is established that could be applicable to all employers irrespective of the size of the employer or the number of employees involved. Actually, the benefits to the individual employee in the light of the cost to the employer of the control for each employee is the crux of what a cost-benefit concept should be all about. There is no better way to ultimately determine cost-benefit than by weighing the cost of the control by the amount of sound reduction measured in terms of dBA. This approach relates directly to Table G–16 and the reality of whether the control eliminates the wearing of personal hearing protectors. Although the Commission has held that controls may be required to reduce noise levels even though the levels specified in Table G–16 are not reached, the fact that personal hearing protectors are not eliminated is a very important fact to consider as to the benefit of the control to the employee. Actually from a ‘cost-benefit’ concept the fact that the personal hearing protectors are not eliminated should be one of the more important considerations. If personal protectors are not eliminated, the benefit of the proposed control to the employee is at best minimal. This fact was recognized by the Commission in the following quote from Continental Can Co., Inc., supra, that ‘. . . we cannot overlook the fact that protection against most of the detrimental effects of excessive noise can be achieved through the use of a relatively reliable and convenient type of personal protective equipment.’

As stated, unless the cost-benefit concept is applied on the basis of cost per dBA of reduction in the light of benefit to each employee, the concept can not be made consistently applicable to all employers. By this approach, a definite guideline is established and there is better possibility of equal and fair application of the regulation to all employers, irrespective of size or the number of employees affected.

The higher the ratio between the costs of the proposed controls and the costs of personal hearing protectors in situations where the protectors are not eliminated, the greater the indication that the costs are excessive and the benefit minimal. The facts in the instant case emphasize the importance of the recognition of inexpensive personal hearing protectors especially where the controls fail to eliminate their use. The facts of record show that the personal hearing protectors cost $6.12 per employee. The Secretary’s most optimistic cost shows $592 per employee. The personal hearing protector will reduce the noise conservatively to 68 dBA or 23.5 dBA lower than the Secretary’s most optimistic assumed results. Pabst breaks down its comparative cost-benefit argument even further by comparing costs on the basis of percentage of sound removed by hearing protectors as against the proposed controls. This comparison indicates a cost-benefit ratio for hearing protectors of six cents versus $6.50 to $13.89 depending on the filling room involved. The results become of even greater magnitude when the reduction of percentage of sound between the protectors and proposed controls are compared.

The expert testified:

‘Q. Looking at it strictly from the standpoint of economic feasibility, though, if I can get down to 68 dBA at a cost of $6.12, you agree with me that purely on an economic basis, given the choice of these two, the economic choice, of course, must be hearing protectors?

‘A Yes.

‘Q And I think you said earlier that really, hearing protectors, anytime this is an allowable choice, is bound to be the better economic choice?

‘A Yes.

‘Q On an economic basis, there’s no question in your mind that hearing protectors are economically the preferable choice?

‘A In this instance, yes.’ (Tr. 301).

The facts indicate in the instant case an extremely high costs ratio and the protectors must still be worn. When these facts are weighed in the light of the admissions of the government’s expert witness as to cost-benefit concepts, the only logical legal conclusion remaining is that the Secretary has failed to carry his burden of proving that the proposed engineering controls are ‘economically feasible.’

ENGINEERING FEASIBILITY

Pabst questions whether the acoustical tile and the Body Guard shield can be used in its plant because of sanitation problems. It relies upon Great Falls Tribune, supra, holding that the Secretary’s burden includes proof that the proposed controls can be used in the employer’s workplace.

Dr. Melling testified that the Body Guard could be designed without the acoustical material. Although this testimony is an ultimate conclusion of fact, in view of his expertise, the statement is accepted as sufficient to carry the Secretary’s burden.

However, a different conclusion must be drawn regarding the acoustical tile.

Dr. Melling did not determine the working environment in the filling rooms. He did not determine the hazard involved from movement of cartons, ladders or other devices that might damage the tile. Although he testified that tile was intended to be placed higher than the workmen, this does not assure that cartons and the necessity to use ladders would not damage the tile. Obviously, a vinyl coating no thicker than one thousandth of an inch would be very susceptible to sharp edges or an object exerting even slight pressure. Dr. Melling’s statement that the tile had been used in breweries in Europe or on offshore platforms is not sufficient to shift the burden back to Pabst to go forward with the evidence, much less sufficient to carry the Secretary’s burden of persuasion. The reason, of course, is that the Secretary failed to lay foundation that Dr. Melling knew the working conditions at Pabst or that the breweries in Europe were the same in design as Pabst’s facility and, of course, there was no foundation laid that the operation at Pabst has any bearing to offshore platforms. To emphasize the problem with the Secretary’s failure of proof, Dr. Melling’s pertinent testimony was as follows:

‘Q All right. Now, again, in answer to my question, just so we’ll have it on the record, you don’t know of any breweries using the H & K Crowner in America - - - I’m sorry, modification of the H & K Crowner?

‘A No I don’t.

Q How many breweries, what fraction of breweries in America use the acoustical tile that you suggest of your own knowledge?

‘A I don’t know.

‘Q How many breweries in America have enclosed hydraulic power packs to your knowledge, what fraction of them?

‘A I don’t know.

‘Q Now, I’m leaving something out, Dr. Melling, what is it? Oh, Body Guard, how many breweries in America to your knowledge are using Body Guard on the conveyors?

‘A I don’t know.

‘Q Do you know how many breweries in America have shielded, covered the bottom of the seamer in America?

‘A No.

‘Q So that with regard to Pabst, in terms of these specific modifications, you’re not able to evaluate how widely any of these are used in America in breweries?

‘A Given time I could find out, yes.

‘Q Right, but I mean here today?

‘A Here today, no.’ (Tr. 229, 230)

‘Q If the - - - let’s be sure the Court understands what we’re talking about with the tile now. Acoustical tile normally is very porous and very absorbant, right?

‘A Yes.

‘Q As it needs to be to be a good sound absorber?

‘A Right.

‘Q So that this material up here, if I put it in a bucket of paint would soak that paint up rapidly, right?

‘A Yes.

‘Q It would be kind of like the television commercial that one of the flouride (sic) toothpastes puts on where they take a piece of chalk and they put it in a dye and very, very quickly you get a colored ring, right?

‘A Yes.

‘Q Now, the only way that you can put this tile in the Pabst Brewery is by preventing that kind of thing, right?

‘A Yes.

‘Q Because if material starts sopping up in there you’d have a terrible sanitation problem, right?

‘A Yes.

‘Q And the FDA would be on your neck, true?

‘A I believe so.

‘Q So what’s been done here it to coat this tile with an impervious vinyl film, correct?

‘A Yes.

‘Q How thick is that film?

‘A It’s of the order of thousands of an inch.

‘Q A couple of mils, maybe?

‘A Umh.

‘Q Two thousandths of an inch thick?

‘A Yes.

‘Q And if you make it a thick film, of course, then the tile would no longer function as an acoustical absorbant?

‘A Correct.

‘Q So we have here a vinyl film maybe .001 to .002 inches thich (sic)?

‘A Yes.

‘Q Now, I can take my thumb nail and scrape it across this film and destroy it very easily?

‘A Yes.

‘Q So that if someone comes into the bottling plant with a stack of beer bottles and happens to rub across the surface of that film it would damage it, wouldn’t it?

‘A It would indeed, but let’s get this into perspective. That treatment is quite high up, it deliberately placed above head height, etcetera so it will be reasonably free from damage.

‘Q And how many times do people bring ladders, big stacks of cartons in there that would go up above the level of the tile?

‘A In the case of Pabst, I have no idea.

‘Q But you wouldn’t be surprised it does occur from time to time?

‘A I wouldn’t be surprised.

‘Q But from what you know of this material, you wouldn’t disagree with me that it may or may not prove structurally satisfactory at the Pabst plant? You know it will absorb noise, but you don’t know whether its’s going to prove that it’s too easily damaged to stay up, isn’t that true, Dr. Melling?

‘A I would agree with you, yes.’ (Tr. 231–234)

‘Q. No, how long would you expect the material to last in place?

‘A Well, again I can call on my experience back in the United Kingdon (sic) where we have used similar materials not only in breweries, but offshore platforms, which I’m sure you will accept as being a more rugged environment than a brewery. It’s been very satisfactory and very little damage.’ (Tr. 314).

On the basis of the overall record, it must be concluded that the Secretary has failed to carry his burden of persuasion that the acoustical tile is a feasible engineering control adaptable to Pabst’s operation.

ULTIMATE CONCLUSIONS OF FACT, LAW, DECISION AND ORDER

1. Respondent is engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. The Commission has jurisdiction over the parties and the proceeding.

3. On March 12, 1975, the noise levels in Filling Rooms 1, 2, III East and III West of Respondent’s packaging center exceeded the limits of Table G–16 of 29 C.F.R. § 1910.95(b)(1).

4. The employees exposed to the noise levels in Filling Rooms 1, 2, III East and III West were protected by personal protective equipment.

5. Due to the high cost ratio between the engineering controls proposed by the Secretary and the personal hearing protectors where the controls will not eliminate the wearing of the protectors, the Secretary has failed to prove that the costs of the proposed controls are feasible when weighed in the light of the benefits to the employee.

6. The Secretary has failed to prove that on March 12, 1975, and January 10, 1978, that economically feasible engineering controls existed for use in Filling Rooms I, 2, III East and III West of respondent’s packaging center at Perry, Georgia.

7. The Secretary has failed to prove that acoustical tile was technologically feasible for installation on March 10, 1975, and January 10, 1978, in Filling Rooms I, 2, III East and III West of respondent’s packaging center at Perry, Georgia.

8. The respondent was not in violation of section 5(a)(2) of the Act for failure to conform with 29 C.F.R. § 1910.95(b)(1).

DECISION AND ORDER

Wherefore it is ORDERED:

The citation issued on April 7, 1975, is vacated and no penalty is assessed.

Dated this 25th day of July, 1978.

JOHN J. LARKIN

Judge

[1] Chairman Rowland dissents. He would not remand the case for further proceedings. Consistent with his dissenting opinion in Sun Ship, he concludes that the requirement in section 1910.95(b)(1) that feasible administrative or engineering controls be utilized is invalid.

[2] The citation described the violation of 29 C.F.R. § 1910.95(b)(1) as follows:

Failure to use feasible engineering or administrative controls to protect employees from exposure to hazardous noise levels exceeding those specified in 1910.95 Table G–16. Violations occurred in the Filling Room # III—West, Filling Room No. III, East, No. 2 Filling Room, No. 1 Filling Room, Machine Operators in Can Packaging Area, Uncaser and Rinser Operator, Label Machine Operators, H & K Packer Machine Operator, SK Glue Machine Operator, 3 West Uncaser & Rinser Operator and Bottle Pasteurizer Operator.

Long Range Abatement: April 9, 1976

An Abatement Plan shall be submitted by: July 5, 1975’

[3] The standard at 29 C.F.R. § 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 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 EXPOSURES¹
Duration per day, hours	Sound level dBA slow response
8	90
6	92
4	95
3	97
2	100
1 ½	102
1	105
½	110

[4] Continental Can Co., Inc., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 76–77 CCH OSHD ¶21,009 (Docket No. 3973, August 24, 1976), pet. for rev. withdrawn; Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 76–77 CCH OSHD ¶21,023 (Docket No. 3635, August 24, 1976) rev. CA 7; Castle & Cooke Foods, A Division of Castle & Cooke, Inc., 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 77–78 CCH OSHD ¶21,854 (Docket No. 10925, May 19, 1977); Union Camp Corp., 74 COSHRC 25/C5 (8/31), 1 BNA OSHC 3385, 73–74 CCH OSHD ¶17,576 (Docket No. 3905, May 1, 1974); Great Falls Tribune Co., 77 OSAHRC 86/B7, 5 BNA OSHC 1443, 1977–78 CCH OSHD ¶21,844 (Docket No. 6632, May 19, 1977).

[5] Respondent points to the requirements of the Food and Drug Administration and Internal Revenue Service as two of the agencies directly involved in this case in addition to OSHA. Very little imagination is required to recognize the many other agencies with voluminous regulations affecting respondent’s operation.

[6] Although the Secretary refers to administrative controls in his brief, no facts were offered that administrative controls were applicable or feasible and it has not been considered as an issue.

[7] The witness recognized he was working under a time limitation and the difficulty dealing with suppliers (Tr. 198, 203). Also, the rising costs of materials due to inflation are a matter of common knowledge.