UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

September 4, 1985

ORDER

The Secretary’s notice is construed as a motion for leave to withdraw the citation and is granted. The citation is vacated and this proceeding is dismissed.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

SEP 4 1985

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

August 2, 1982

APPEARANCES:

Paul Katz, Esq., for Complainant

James M. Kenny, Esq., for Respondent

DECISION AND ORDER

This case arose under 29 USC, sec. 651 et seq. of the Occupational Safety and Health Act of 1970 (the Act). As a result of an inspection by the Occupational Safety and Health Administration [OSHA] of the Respondent’s premises on March 19, 1980 to May 29, 1980, Citation 1 was issued on or about July 3, 1980, charging that the Respondent violated sec. 5(a)(2) of the Act by the serious violation of the standards at 29 CFR 1910.95(a), (b)(1) and (b)(3) [respectively items 1A–C of Citation #1]; and the other than serious violation of the standard at 29 CFR 1910.145(c)(2) [item 1 of Citation #2].

On July 10, 1980, the Respondent filed Notice of Contest to items 1A–C of Citation #1 and item 1 of Citation #2, and the penalties proposed therefor. The Complainant withdrew item #1B of Citation #1 and Citation #2 . . . Tr. 3, 4.

REOPEN THE CASE?

Due to the unavailability of Judge Hassenfeld after the hearing had been completed, the case was assigned to me. While the Complainant indicated willingness to agree to a decision by me based on the Transcript, Record, and Briefs, the Respondent requested a new hearing so that the credibility of witnesses could be tested. That request is denied for the reasons stated below.

At the hearing on October 15 and 16, 1981, the only witnesses were the OSHA inspection officer [Bocynesky], the Respondent’s engineer [Merrill], the OSHA expert industrial hygienist [Ratney], and an OSHA compliance officer [Kaletsky]. All were called by the Complainant. Kalesky’s testimony was practically unimportant as he merely authenticated official court documents concerning the search warrant.

The Transcript clearly discloses that there was no serious effort to challenge the credibility of any witness either by cross-examination or by other testimony or evidence. In fact, the Respondent’s defense seemed to be that the Complainant had not made out a case on the testimony; and, in any event, that the Complainant’s evidence should have been suppressed because the search warrant was invalid and illegal. Credibility of any witness was not really in issue.

The Transcript and Record both establish that each party had every full and fair opportunity to present its side of the case at the hearing. It is clear that no question was raised at the trial about the credibility of any witness; nor has there been and need to choose between witnesses. It is also clear that the probability of any change in the facts that might be elicited at a re-hearing seems to be very slight. In those circumstances, it is my opinion that the case should not be reopened. That is particularly true when [as here] it is apparent that any evidence to be offered at the reopening was available to the parties at the original trial.

For the reasons cited, the case will not be reopened but will be decided on the Transcript, Record, and Briefs.

The pertinent sections of the Act and the standards are appended to this decision under appropriate titles.

THE ISSUES:

1. Was the inspection of the ‘Stamford’ legal and valid?

2. Did the noise in the Stamford’s engine room exceed that permitted by Table G–16?

3. Did the Respondent provide a continued and effective hearing conservation program?

THE INSPECTION:

The Respondent operates a tugboat and marine towing service. Two of its tugboats are the ‘Stamford’ and the ‘New Haven’. As a result of an employee’s complaint (Exh. C–1), an OSHA Compliance Officer on May 9, 1980, obtained a search warrant authorizing the inspection of the two tugboats [Exh. C–3, C–6]. This warrant stated that it was valid only to May 19th, but the time was apparently extended to May 29th. I find that the warrant was properly issued on May 9th and was extended to include Mary 29th. It was presented to the Respondent on May 12th. Inspections of the Stamford were made on May 27 and May 29.

On May 14th, the Respondent’s assistant office manager [Rosenbaum] told OSHA Compliance Officer Bocynesky that the Respondent would not consent to an inspection of the tugboats. However, on May 15th, Rosenbaum informed Bocynesky that the Respondent had changed its mind and had decided to allow the inspection . . . Tr. 20–32, 42, 43, 54.

The Complainant contended that the inspection was based on a valid Search Warrant or the Respondent’s consent or both. I find that the inspection was valid and legal on both grounds.

EXCESSIVE NOISE:

Although the Compliance Officer inspected the tugboat Stamford on both the 27th and 29th of May, the decision in this case is based on the inspection of the 29th because the evidence established that conditions were ‘normal’ or ‘representative’ on that date according to the Respondent’s engineer [Merrill], the assistant office manager [Rosenbaum], and ‘management’ whereas ‘the crew members, the captain and the engineer’ said the 27th was not a ‘normal’ day . . . Tr. 146–152, 164, 165.

Because the Respondent’s tugboat (the Stamford) is ‘automated’, the engineer does not have to spend all his time in the engine room but merely monitors instruments outside the engine room that alert him to any problem that requires his presence in it . . . Tr. 117. The uncontradicted testimony of the Respondent’s engineer [Merrill] tended to establish that he usually spent over two hours in the engine room during a six hour shift . . . Tr. 123, 124, 127.

Merrill testified that he wore earmuffs 99% of the time in the engine room; and that other employees who merely passed through it did not normally wear earmuffs . . . Tr. 115, 116.

The testing was performed with a general radio noise dosimeter and a sound level meter. The dosimeter was set at A scale, slow response, and was calibrated . . . Tr. 58–62. On both May 27th and May 29th, the tests clearly established that the engineer [Merrill] was exposed to excessive noise in the engine room. On May 29th, the dosimeter was worn for 322 minutes and recorded a decibel percentage reading of 385.6%, or 104.5 decibels, which exceeded the limit allowed in Table G–16. For Merrill’s entire time on May 29th, the decibel percentage reading was 435.1%, or 99.96 dBA. Although that volume of noise is allowable for only two hours, Merrill was exposed to it for over eight hours [525 minutes] . . . Tr. 78–90.

HEARING CONSERVATION PROGRAM:

The uncontradicted evidence established that the Respondent did not have a continued and effective hearing conservation program. Compliance Officer Bocynesky testified that the Respondent’s office manager [Smith] said the Respondent had not monitored for noise or given employees audiometric testing . . . Tr. 113. The Complainant’s well-qualified expert [Ratney] testified that audiometric testing is the only real quality control and is a very important part of any hearing conservation program. He pointed out that it costs $5 to $15 per employee . . . Tr. 238, 239. Obviously, such a program is easily feasible.

INJURY:

In my opinion, there was not sufficient evidence to establish a ‘substantial probability that death or serious physical harm could result’. As a result, I find that the violation was merely ‘other than serious’.

FINDINGS OF FACT:

Having read the Transcript, Record, and Briefs, and examined the exhibits, the following Findings of Fact are made:

1. At all times concerned, the Respondent regularly received, handled or worked with goods which had moved across state lines.

2. As concerns Items #1A & C of Citation #1, an employee was exposed to sound levels exceeding those listed in Table G–16, and a continuing, effective hearing conservation program was not administered.

3. The conditions described in Items #1A & C of Citation #1 exposed the Respondent’s employee to sustaining harm because of the hazard of noise creating deafness.

4. One or more officers or supervisory personnel of the Respondent knew of the hazardous conditions described herein and knew that an employee was exposed to such hazard.

CONCLUSIONS OF LAW

1. At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act; and the Occupational Safety & Health Review Commission has jurisdiction over the subject matter and the parties.

2. At all times concerned, the Respondent knew, or with the exercise of due diligence should have known, of the alleged violation.

3. On the date in question, the Respondent was not in compliance with the standards at 29 CFR 1910.95(a) and (b)(3); and the Complainant has sustained the burden of proving the Respondent violated sec. 5(a)(2) of the Act (sec. 654).

4. The Complainant has not sustained the burden of proving the Respondent violated the standards at 29 CFR 1910.95(b)(1) and 29 CFR 1910.145(c)(2), respectively item 1B of Citation #1 and item 1 of Citation #2.

ORDER

The whole record having been considered, and due consideration having been given to 29 U.S.C., sec. 666(j), it is ordered:

1. Items 1A and 1C of Citation #1 are affirmed, without penalty, as other than serious violations.

2. Item 1B of Citation #1 and Citation #2 are vacated.

FOSTER FURCOLO

JUDGE, OSHRC

Dated: August 2, 1982

Boston, Massachusetts

APPENDIX

THE ACT

Section 654 [section 5(a)(2)] Employer ‘. . . shall comply with occupational safety and health standards . . .’

Section 666 [section 17(c)] ‘. . . employer who has received a citation for a violation of . . . this Act . . . specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.’

Section 666 [section 17(j)] ‘. . . assess all civil penalties . . . giving due consideration to . . . the size of the business . . . gravity of the violation, the good faith of the employer, and the history of previous violations.’

Section 666 [section 17(k)] ‘. . . a serious violation shall be deemed to exist . . . if there is a substantial probability that death or serious physical harm could result . . . unless the employer did not, and could not . . . know of the presence of the violation.’

THE STANDARDS

1910.95(a): ‘Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G–16 when measured on the A scale of a standard sound level meter at slow response . . .’

1910.95(b)(3): Where there is excessive sound, ‘a continuing, effective hearing conservation program shall be administered.’