UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 16118
SUN SHIP, INC.,
Respondent.

December 17, 1982

DECISION

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

The occupational noise standard at 29 C.F.R. § 1910.95(b)(1)[1] requires that ‘feasible’ administrative or engineering controls be implemented to reduce excessive noise levels. This case involves the meaning of the word ‘feasible’ as it is used in the standard. In Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976–77 CCH OSHD ¶21,009 (No. 3973, 1976), appeal withdrawn, No. 76–3229 (9th Cir. Apr. 26, 1977) (‘Continental Can’), the Commission first interpreted ‘feasible’ in the noise standard. A divided Commission held that the word must be interpreted ‘to effectuate the Congressional purposes underlying the Act,’[2] 4 BNA OSHC at 1546, 1976–77 CCH OSHD at p. 25,255, and reasoned that this means a cost-benefit analysis is required. The Commission stated: ‘In determining whether controls are economically feasible, all relevant cost and benefit factors must be weighed.’ 4 BNA OSHC at 1547, 1976–77 CCH OSHD at p. 25,256.

This holding of Continental Can has remained Commission precedent. Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD ¶24,555 (No. 76–222, 1980). However, the Supreme Court has since interpreted the word ‘feasible’ in section 6(b)(5)[3]of the Act and held that ‘feasible’ does not require, and indeed precludes, a weighing of costs and benefits. American Textile Manufacturers Institute, Inc. v. Donovan, 101 S.Ct. 2478 (1981) ( ‘ATMI’). The Court held that ‘feasible’ means ‘capable of being done’ or ‘achievable’ and that Congress intended employee health to outweigh ‘all other considerations save those making the attainment of this ‘benefit’ unachievable.’ 101 S.Ct. at 2490.

In this case, we consider the impact of the Supreme Court’s decision in ATMI on the Commission’s interpretation of the noise standard in Continental Can. For the following reasons, we hold that the interpretation in Continental Can was erroneous.

I

Sun Ship, Inc. operates a shipyard in Chester, Pennsylvania. In September, 1975, a United States Department of Labor compliance officer inspected the plant and measured the noise to which one blacksmith was exposed during his work shift. Because the compliance officer found excessive noise exposure, Sun Ship received a citation alleging noncompliance with the noise standard, section 1910.95(b)(1).

At the hearing, the Secretary proposed engineering controls to reduce the excessive noise. An expert, a consulting engineer with experience in noise control, testified about the controls and the costs involved in implementing them. He gave a figure representing the cost of fabricating the controls but he did not quantify any indirect costs, such as any loss of productivity, incidental to using the controls.

At the close of the Secretary’s case, Sun Ship moved to dismiss the charges on the basis that the Secretary’s case was insufficient. Sun Ship argued that the Secretary failed to meet his burden of proof under Continental Can, supra, because he failed to demonstrate indirect costs. Administrative Law Judge William E. Brennan, before whom the case was tried, granted Sun Ship’s motion to dismiss. He concluded that the Secretary failed to meet the burden of proof imposed by Continental Can since he did not establish the indirect costs of the engineering controls.

The Secretary filed a petition for discretionary review which Commissioner Cleary granted.[4] The Commission subsequently issued the following briefing order:

(1) What impact, if any, does the United States Supreme Court decision in American Textile Manufacturers Institute, Inc. v. Donovan . . . have on the Commission interpretation of 29 C.F.R. § 1910.95(b)(1) set forth in . . . Continental Can Co. . . .

(2) What impact, if any, does the decision in Carnation Co. v. Secretary of Labor, 641 F.2d 801 (9th Cir. 1981), have on whether the Secretary established a prima facie case that Respondent violated 29 C.F.R. § 1910.95(b)(1)?[5]

Sun Ship argues that ATMI does not affect Continental Can because ATMI involved a section 6(b)(5)[6] rather than a section 6(a)[7] standard, ATMI involved a life-threatening hazard, and under ATMI cost-benefit may be used to determine the feasible abatement to reach a given exposure level. The Secretary argues that ATMI requires Continental Can to be overruled. In the Secretary’s view, ‘feasible’ must be given the same meaning in the noise standard as in section 6(b)(5). Also, the Act does not require a cost-benefit analysis for a standard adopted under section 6(a).

II

In ATMI the Supreme Court interpreted the language of section 6(b)(5) which states:

The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity. . . .

The Court was confronted with an industry challenge to a standard regulating employee exposure to cotton dust. The standard was adopted by the Secretary under section 6(b)(5) and the industry parties contended that the Act requires the Secretary to balance costs and benefits when promulgating a standard under this section.

Focusing on the phrase ‘to the extent feasible,’ the Court held that ‘feasible’ means ‘capable of being done’ or ‘achievable.’ 101 S.Ct. at 2490, 2494. The Court looked to the ‘plain meaning’ of the word—the common definition. The Court also examined other statutes and found that ‘[w]hen Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute.’ 101 S.Ct. at 2491. From this, the Court concluded that, in view of the common definition of ‘feasible,’ the word as used by Congress in section 6(b)(5) cannot be understood to impose a requirement for cost-benefit analysis. In addition, the Court reviewed the legislative history of the Act and concluded:

The legislative history of the Act, while concededly not crystal clear, provides general support for . . . [the conclusion that ‘feasible’ does not require cost-benefit analysis]. The congressional reports and debates certainly confirm that Congress meant ‘feasible’ and nothing else in using that term. Congress was concerned that the Act might be thought to require achievement of absolute safety, an impossible standard, and therefore insisted that health and safety goals be capable of economic and technological accomplishment. Perhaps most telling is the absence of any indication whatsoever that Congress intended OSHA to conduct its own cost-benefit analysis before promulgating a toxic material or harmful physical agent standard. The legislative history demonstrates conclusively that Congress was fully aware that the Act would impose real and substantial costs of compliance on industry, and believed that such costs were part of the cost of doing business.

101 S.Ct. at 2493. The Court specifically concluded from its examination of the congressional discussions of general costs and general employee benefits:

Nowhere is there any indication that Congress contemplated a different balancing by OSHA of the benefits of worker health and safety against the costs of achieving them. Indeed Congress thought that the financial costs of health and safety problems in the workplace were as large or larger than the financial costs of eliminating these problems. In its statement of findings and declaration of purpose encompassed in the Act itself, Congress announced that ‘personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.’ 29 U.S.C. § 651(a).

101 S.Ct. at 2496–2497 (emphasis by the Court).

In sum, in ATMI the Supreme Court held that, because neither the Act nor its legislative history reveals that Congress intended to require a cost-benefit analysis as a part of rulemaking under section 6(b)(5), the word ‘feasible’ in that section must be given its ordinary meaning—that which is ‘achievable.’ Significantly, the Court determined that Congress, in enacting the Act, believed that the costs of employee injuries and illnesses were at least as great as, and likely greater than, the costs of eliminating injuries and illnesses and that, therefore, the benefits of reduced injuries and illnesses generally justified the costs that would be incurred in doing so.

The Court’s interpretation of ‘feasible’ is limited, Sun Ship argues in this case, to standards promulgated under section 6(b)(5). Because the noise standard was promulgated under section 6(a) of the Act, see note 7 supra, and neither Congress nor the Secretary ever considered the balance of costs against benefits for this standard, Sun Ship argues that cost-benefit analysis should be required to enforce the standard. Accordingly, Sun Ship urges that the Commission adhere to Continental Can.

We find these arguments unpersuasive in light of the Court’s decision. Clearly, the Supreme Court decided only the meaning of section 6(b)(5) and not whether cost-benefit analysis might be required for standards promulgated under other sections. See 101 S.Ct. at 2490 n. 29 and 2493 n. 32. However, the Supreme Court held that, because of the absence of any strong indication that Congress intended ‘feasible’ to have a special meaning, ‘feasible’ as used by Congress must be given its ordinary meaning. The Court further held that, under its ordinary meaning of ‘achievable,’ ‘feasible’ cannot require cost-benefit analysis. See 101 S.Ct. at 2490, 2492. The Court thus decided that Congress did not intend to require cost-benefit analysis by using the word ‘feasible.’ The identical question of legislative intent is presented in interpreting the noise standard.

The pertinent language of the noise standard is: ‘When employees are subjected to sound exceeding those listed . . ., feasible administrative or engineering controls shall be utilized.’ The Secretary adopted this language in the noise standard because Congress directed that the Walsh-Healey standards, one of which was the noise standard, be adopted as occupational safety and health standards under section 6(a). See note 7 supra. Accordingly, the Commission in Continental Can examined the Walsh-Healey Act and its history as well as the history of the noise standard to determine whether ‘feasible’ had any special meaning. However, there was no indication that the word was intended to have any meaning other than the common definition. In these circumstances, the Commission concluded, ‘The standard must be interpreted to effectuate the Congressional purposes underlying the Act.’ 4 BNA OSHC at 1546, 1976–77 CCH OSHD at p. 25,255.

Because ‘feasible’ had no special meaning under the Walsh-Healey Act, it is appropriate to interpret it in accordance with the Congressional purpose underlying the OSH Act. But, as held by the Supreme Court in ATMI, ‘feasible’ under the OSH Act means ‘achievable’ and does not require cost-benefit analysis. Regulations are to be construed consistent with the statutes under which they are promulgated. United States v. American Trucking Ass’ns, 310 U.S. 534, 542 (1940). Furthermore, unless a different intent is clearly evident the same statutory terms are to be given the same meaning. Chugach Natives, Inc. v. Dayon Ltd., 588 F.2d 723 (9th Cir. 1979) and cases cited. Accordingly, regulatory language should be given the same meaning as the same language appearing in the statute. See Baroid Div. of N.L. Industries, Inc. v. OSHRC, 660 F.2d 439, 447 (10th Cir. 1981), and RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979), where the statutory and regulatory uses of ‘feasible’ are viewed as synonymous.[8] Accordingly, we overrule Continental Can to the extent that it holds that ‘feasible’ in the noise standard requires cost-benefit analysis.[9]

The Supreme Court did not, however, reject the idea that ‘feasible’ includes economic considerations. All parties in ATMI agreed that a standard would not be feasible if its costs would be so high as to threaten the economic viability of an industry.[10] The Court did not disagree, expressing the view that inclusion of economic considerations ‘is certainly consistent with the plain meaning of the word ‘feasible.” 101 S.Ct. at 2501 n. 55. In promulgating the standard in ATMI, the Secretary had estimated the costs of compliance for the different sectors of the cotton industry affected by the standard and evaluated their ability to absorb the costs. Because he concluded that compliance with the standard would not threaten the ‘long-term profitability and competitiveness’ of the various industrial sectors, the Secretary concluded that the standard was feasible. Id.

Thus, ‘feasibility’ under section 6(b)(5) includes consideration of whether the cost of compliance with a standard will be so great as to threaten an industry’s long-term profitability and competitiveness. By analogy, considerations of cost must also enter into whether administrative or engineering controls are ‘feasible’ under section 1910.95(b)(1).[11] Generally, administrative or engineering controls would be economically infeasible if their cost would seriously jeopardize the cited employer’s long-term financial profitability and competitiveness.[12] There may also, as the Secretary points out, be situations in which a particular employer is lagging so far behind its industry in protecting the health and safety of its employees that it cannot afford to implement controls that are generally feasible throughout the industry. See Industrial Union Department, AFL–CIO v. Hodgson, 499 F.2d 467, 478 (D.C. Cir. 1974). In these situations, controls may be feasible even though they are beyond the financial capability of the cited employer. Thus, as part of his proof of feasibility, the Secretary must show either that the cost of engineering and administrative controls will not threaten the cited employer’s long-term profitability and competitiveness or that the employer’s inability to afford the cost of controls results from the employer lagging behind its industry in providing safety and health protection for employees.[13]

III

In this case, the Secretary’s charges under the noise standard were dismissed at the close of the Secretary’s evidence. The question is whether the Secretary made a prima facie case of violation under our interpretation of the noise standard. The evidence presented during the Secretary’s case-in-chief is as follows.

On September 30, 1975, a blacksmith was performing grinding and blacksmith work for shipfitting and fabrication in a building in Sun Ship’s shipyard. Using a dosimeter and a sound level meter, the compliance officer measured the noise to which the blacksmith was exposed during his shift.

During the morning half of his shift, the blacksmith worked in the shipfitting end of the building grinding steel hatch opening rings. He used a Stanley V–50 pneumatic hand-held grinder which was not equipped with a muffler. A metal workbench was used to hold each ring as it was ground. The ring was not clamped to the workbench. Also, there were eight or nine other employees performing welding, grinding, and shipfitting work in the vicinity of the blacksmith.

With the sound level meter, the compliance officer measured the noise levels. She found that they ranged from 101 to 108 dBA while the blacksmith was using the grinder in contact with a hatch opening ring and the other employees were working in the background. When there was no background noise but the blacksmith was using the grinder on a ring, the noise levels were 102 to 103 dBA. The background noise alone was 90 to 92 dBA. The noise levels were below 90 dBA when no employees were working.

The compliance officer timed the blacksmith’s grinding activities. She watched the employee grinding several of the rings and, using a stop watch, she timed the intervals during which he held the grinder in contact with the ring. She found that the intervals added up to about five minutes per ring, on the average. Since eleven rings were ground that morning, the compliance officer attributed one hour of the morning portion of the shift to grinder-to-metal work.

Between the intervals of grinder-to-metal work, the blacksmith was doing such things as adjusting the ring on the workbench or adjusting the grinder. During these times, he was exposed only to background noise and/or noise from his grinder which may have been switched on. He was not holding the grinder in contact with anything, however. Because the blacksmith spent a total of about three hours working on grinding the eleven hatch opening rings but one of those hours could be attributed to grinder-to-metal work, the compliance officer attributed the remaining two hours to pre-grinding work involving exposure mainly to background noise. There remained approximately one hour during which the blacksmith was performing some unidentified activities not involving exposure to any of this noise. The compliance officer concluded that during this hour the blacksmith’s noise exposure was below 90 dBA.

During the afternoon half of his shift, the blacksmith performed blacksmith work in the fabrication end of the same building. With the sound level meter, the compliance officer found that the noise level was generally 92 dBA. She also found that the blacksmith was exposed to this noise level for about 3.25 hours.

With the information compiled about the various sound levels and time intervals, the compliance officer was able to compute the blacksmith’s total noise exposure. The compliance officer’s data indicated that the blacksmith was exposed to the following minimum noise levels for the following times:

102 dBA	-1 hour (grinder-to-metal work—no background noise)
90 dBA	-2 hours (background noise only)
less than 90 dBA	-1 hour (unidentified work)
92 dBA	-3.25 hours (blacksmith work)

Table G–16, note 1 supra, gives the permissible exposure time for each of these noise levels. The footnote to the table states that the combined effect of exposure to two or more periods of noise exposure at different levels may be determined by computing the sum of fractions Cn/Tn where Cn is the total actual exposure time and Tn is the permissible exposure time for the particular noise level. In this case, the fractions added up to 1.46.[14] Because the sum exceeded unity (one), the compliance officer concluded that the blacksmith was exposed to excessive noise.

The compliance officer also used a dosimeter to judge the blacksmith’s noise exposure. The blacksmith wore the dosimeter while he was engaged in performing the grinding and blacksmith work. The total readout was 168 percent of permissible noise exposure which showed exposure to excessive noise. Because both the dosimeter readout and the computation based on the sound level meter measurements revealed excessive noise exposure, the Secretary issued the citation alleging noncompliance with the noise standard with respect to the blacksmith.

At the hearing, the Secretary presented expert testimony proposing engineering controls for the hatch opening ring grinding operation. The expert visited Sun Ship’s facility and tested the noise levels generated by a Stanley V–50 pneumatic grinder which was being used to grind the metal substructure of a ship. He found that the levels were generally 92 dBA when the grinder was in contact with the metal. When the grinder was not in contact, the levels were about 90 dBA. Any higher noise levels detected during grinder-to-metal work are generally attributable almost entirely to vibration of the work piece. Also, large metal objects such as this metal ship substructure produce little significant vibration noise while being ground. The expert concluded from his tests that the noise level produced by the grinder alone was about 92 dBA. He testified that the 102 dBA noise levels detected by the compliance officer while the blacksmith was grinding hatch opening rings but there was no background noise were attributable to two sources, the grinder itself and the hatch opening rings vibrating on the workbench. Therefore, the expert recommended muffling the grinder and using a sound-dampening workbench.

The expert testified that the primary source of the noise generated by the grinder is the exhaust air port, where the pressurized air exhausts after turning the turbine of the grinder. Accordingly, the expert proposed enclosing the exhaust air port and attaching a muffler. The expert testified that from Stanley, the manufacturer of the grinder, he learned that a muffled version of the grinder can be purchased. He also learned that, although Stanley does not produce a retrofit kit to muffle the older V–50 grinder, for $200 an employer can purchase the muffling parts of the newer grinder and apply them to the older tool. However, because Stanley does not produce the parts specifically adapted to retrofit the older V–50, the Secretary’s expert designed a muffler for the grinder. His design consisted of a housing enclosing the exhaust air port and a hose leading to a muffler. The expert estimated that the design cost would be $1500 and the fabrication cost would be $320, a total of $1820.[15] He also estimated, based on his experience in muffling grinding tools, that a 3 dBA reduction would result and as much as a 6 dBA reduction could be possible.

The expert also recommended that the metal workbench be replaced with a wooden one and that the workbench be equipped with clamps to hold the hatch opening rings securely to the workbench during grinding. The expert estimated that the cost of materials and labor for this workbench would be about $460.

IV

The Secretary’s evidence shows employee exposure to excessive noise. The principal question is whether the evidence shows there are feasible engineering controls for the excessive noise. According to the expert’s testimony, the muffler would result in a 3 dBA reduction in the noise produced by the grinder alone, which the expert determined was approximately 92 dBA. Further, the elevation in noise levels during grinder-to-metal work results from vibration noise. Accordingly, vibration noise accounts for approximately 10 dBA of the 102 dBA noise levels detected by the compliance officer while the blacksmith was using the grinder in contact with the hatch opening rings.[16] With a 3 dBA reduction in grinder noise and most of the vibration noise eliminated,[17] the Secretary’s evidence shows that the blacksmith’s exposure will be within permissible limits.[18]

The Secretary’s evidence also establishes that the cost of implementing the controls will be about $2,500. See note 15 supra and accompanying text. The judge dismissed the Secretary’s charges because the Secretary did not show the indirect costs, such as inefficiency or loss of productivity, that might result from implementation of the controls. We can infer, however, that such indirect costs would be negligible. Substitution of a wooden workbench for a metal one should present no impediment to Sun Ship’s grinding process. Moreover, the fact that muffled grinders are available commercially suggests that grinders can be successfully muffled without a significant adverse effect on performance.

The Secretary’s evidence also establishes that Sun Ship has annual sales in excess of $100 million. In light of this, we infer that the $2,500 cost of the controls will not adversely affect Sun Ship’s long-term profitability and competitiveness. We therefore conclude that the Secretary has established a prima facie case. In making this conclusion, we have not taken into account whether abatement on a plant-wide basis will threaten Sun Ship’s long-term profitability and competitiveness. See note 5 supra and accompanying text. However, we conclude that, to make a prima facie case, the Secretary is not required to show more than that the controls are economically feasible for the cited operation or location. As the Court of Appeals for the Ninth Circuit stated in Carnation Co. v. Secretary of Labor, supra, in rejecting the employer’s argument that the Secretary was required to inspect the entire plant for noise violations and issue a comprehensive citation:

It would be a waste of government money and energy to compel the Secretary to prove the economic feasibility of plant-wide controls where there is no suggestion by the violator that such controls would be economically infeasible. . . . The matter would be entirely different if a violator were able to show that the controls installed at discrete locations, while economically feasible, would not be economically feasible were they installed throughout the plant. The latter case would be impermissible because the Secretary could carry his burden and prove economic feasibility under 29 C.F.R. § 1910.95 by piecemeal proof in situations where he would not be able to prove economic feasibility had he required the violator at the outset to remedy all the violations in the plant.

641 F.2d at 803.

Accordingly, we conclude that the Secretary has established a prima facie case of violation of the noise standard.[19] The judge’s decision granting Sun Ship’s motion to dismiss is therefore set aside and the case is remanded for further proceedings.[20] SO ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: DEC 17, 1982

ROWLAND, Chairman, dissenting:

During the more than ten years that the noise standard has been in effect, this Commission has been unable to interpret and apply it in a consistent, reasonable manner. This decision, which represents the Commission’s latest attempt to define the meaning of the term ‘feasible,’ is no exception. Relying on a Supreme Court decision[21] that is not dispositive of the issue at hand, the majority concludes that ‘feasible’ has the ‘plain meaning’ of ‘achievable,’ and that the noise standard therefore requires employers to spend large sums of money to reduce noise levels regardless of whether such expenditures produce any commensurate benefits in employee safety or health. Moreover, the majority’s interpretation preempts a rulemaking decision that the Secretary of Labor is statutorily empowered to make, and indeed is in the process of making. In my opinion, the inability of the Commission to arrive at a consistent interpretation of the standard, coupled with the absence of any legislative history concerning the meaning ‘feasible’ was intended to have in the standard, demonstrates that the standard lacks ascertainable criteria for its enforcement and impermissibly delegates to the Commission the authority to decide what the standard should mean. I therefore conclude that the standard is unenforceable to the extent it seeks to require ‘feasible administrative or engineering controls’ and would vacate the citation issued to Sun Ship in this case on this basis.

I

It is a fundamental principle that a statute or regulation is unenforceable if its terms are so uncertain of meaning as to result in arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. 104 (1972); Giaccio v. State of Pennsylvania, 382 U.S. 399 (1966); International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809 (5th Cir. 1979). As the Supreme Court said in Grayned v. City of Rockford, supra:

[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

408 U.S. 108–09 (footnotes omitted). Examining the nexus between unenforceably vague statutory terms and the non-delegation doctrine, Justice Rehnquist observed in his concurring opinion in Industrial Union Department, AFL–CIO v. American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844 (1980) ( ‘IUD v. API’):

As formulated and enforced by this Court, the nondelegation doctrine serves three important functions. First, and most abstractly, it ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our government most responsive to the popular will. See Arizona v. California, 373 U.S. 546, 626 (1963) (Harlan, J., dissenting in part); United States v. Robel, 389 U.S. 258, 276 (1967) (Brennan, J., concurring in the result). Second, the doctrine guarantees that, to the extent Congress finds it necessary to delegate authority, it provides the recipient of that authority with an ‘intelligible principle’ to guide the exercise of the delegated discretion. See Hampton & Co. v. United States, 276 U.S. 394, 409 (1928); Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935). Third, and derivative of the second, the doctrine ensures that courts charged with reviewing the exercise of delegated legislative discretion will be able to test that exercise against ascertainable standards. See Arizona v. California, supra, at 626 (Harlan, J., dissenting in part); American Power & Light Co. v. SEC, 329 U.S. 90, 106 (1946).

100 S.Ct. at 2885–86. Justice Rehnquist’s observation that Congress ‘must provide sufficient principles to guide an agency as to the limits of its delegated discretion,’ is equally applicable to agency promulgation of standards. Accordingly, where an agency exercises Congressionally-delegated authority to promulgate standards, the agency must write the standards in reasonably explicit terms so that the adjudicators under those standards have principles to guide their findings and conclusions.

In attempting to interpret the noise standard, individual Commission members have held greatly divergent views about the meaning of ‘feasible’ and ultimately the Commission has not been able to adhere to an interpretation. Instead, each time the Commission has examined the issue, its members came to different conclusions. In Continental Can Co.,[22] a Commission majority agreed that ‘[i]n determining whether controls are economically feasible, all relevant cost and benefit factors must be weighed.’ 4 BNA OSHC at 1547, 1976–77 CCH OSHD at p. 25,256. The majority noted that the Secretary would only allow consideration of economic factors if the cost of implementing controls would seriously jeopardize the financial health of a company[23] and stated that this approach is unreasonable because it compels employers to expend considerable sums of money for protection against a hazard that is not life threatening:

Clearly, employers have finite resources available for use to abate health hazards. And just as clearly if they are to be made to spend without limit for abatement of this hazard their financial ability to abate other hazards, including life threatening hazards, is reduced. We can conceive that in some if not many cases it will be reduced to the point that they will be put in financial jeopardy when faced with the problem of abating a life threatening hazard.

4 BNA OSHC 1547, 1976–77 CCH OSHD at p. 25,256. Thus, the Continental Can majority saw that it is entirely unreasonable to hold that ‘feasible’ means simply ‘achievable’ or ‘capable of being done.’ The courts that reviewed decisions concerning alleged violations of the noise standard accepted the Continental Can majority’s interpretation. Donovan v. Castle & Cooke Foods, No. 77–2565 (9th Cir. Nov. 19, 1982); RMI Co. v. Secretary, 594 F.2d 566 (6th Cir. 1979); Turner Co. v. Secretary, 561 F.2d 82 (7th Cir. 1977). See also Diversified Industries Division, Independent Stave Co. v. OSHRC, 618 F.2d 30 (8th Cir. 1980); Marshall v. West Point Pepperell, 588 F.2d 979, 981 n.3 (5th Cir. 1979).

The Commission has never until now overruled the Continental Can interpretation, but the two Commission members who form the majority in this case certainly wanted to, and were only prevented from doing so through their inability to agree on a new interpretation. Commissioner Cleary first described his views in his dissenting opinion in Continental Can. There he said, ‘Economic considerations are not implicit in the term ‘feasible’ as it appears in section 1910.95(b)(1)’ (emphasis in the original) and ‘Cost considerations are relevant only in determining the pace at which an abatement program should proceed.’ 4 BNA OSHC at 1550, 1976–77 CCH OSHD at p. 25,259. Thus, Commissioner Cleary took the view that ‘feasible’ means technologically achievable and nothing more. As technology develops, employers must implement it, without regard to costs and benefits. Commissioner Cottine later agreed with this position in Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD ¶24,555 (No. 76–222, 1980) (concurring opinion), but Commissioner Cleary then decided, having given the matter further thought, that economics plays some role in determining whether controls are feasible. According to Commissioner Cleary, the standard ‘should not force an employer into an abatement situation that, from an economic standpoint, is patently unreasonable.’ 8 BNA OSHC at 1525, 1980 CCH OSHD at p. 30,048. However, he rejected weighing the costs against the benefits as the test of economic feasibility, saying that the OSH Act does not require a reasonable balance of costs and benefits.

Thus, over about four years there were three widely diverging and strongly held views expressed by Commission members about the meaning of ‘feasible’: one requiring cost-benefit analysis, another prohibiting any consideration of economic factors, and a third permitting consideration of economic factors under a vaguely defined ‘reasonableness’ test.

The current Commission majority adopts a fourth view. As part of the Secretary’s proof of feasibility, the Secretary must show ‘either that the cost of engineering and administrative controls will not threaten the cited employer’s long-term profitability and competitiveness or that the employer’s inability to afford the cost of controls results from the employer lagging behind its industry in providing safety and health protection for employees.’[24]

II

Accepting the Secretary’s arguments, the majority bases its interpretation of the noise standard on ATMI, in which the Supreme Court decided that ‘feasible’ means simply ‘capable of being done’ or ‘achievable.’[25] However, in ATMI the Supreme Court was faced only with the narrow question of interpreting section 6(b)(5) of the OSH Act, which deals with the promulgation of standards for toxic substances and harmful physical agents. See notes 3 and 6 of the majority opinion. See also 101 S.Ct. at 2489. The Court unequivocally stated in ATMI that it did not decide whether costs and benefits can be weighed in promulgating standards under other provisions of the OSH Act or to establish priorities among possible standards for rulemaking proceedings. 101 S.Ct. at 2490 n. 29 and 2493 n. 32. See Donovan v. Castle & Cooke Foods, slip op. at 12. Thus, ATMI does not answer what role costs and benefits can play in a standard adopted under section 6(a).

Additionally, the Court’s ‘plain meaning’ definition of ‘feasible’ cannot be uncritically applied wherever the term is found. The Court closely examined the legislative history of section 6(b)(5) to assure that the Congressional intent in inserting ‘feasible’ into the section corresponded with what the Court said was the ‘plain meaning’ of the term. See 101 S.Ct. at 2490–94. Accordingly, although the meaning of section 6(b)(5) of the OSH Act is now clear from ATMI, the meaning of the noise standard remains an unanswered question.

Interpreting the noise standard presents different and special problems. Because the noise standard was adopted under section 6(a) of the OSH Act as an established federal standard in effect under the Walsh-Healey Act,[26] the standard must be given the same meaning under the OSH Act that it had under the Walsh-Healey Act, for the Secretary was generally not empowered to effect any substantive change in adopting standards under section 6(a) of the OSH Act. American Can Co., 82 OSAHRC 5/A2, 10 BNA OSHC 1305, 1982 CCH OSHD ¶25, 899 (No. 76–5162, 1982); George C. Christopher & Sons, Inc., 82 OSAHRC ___, 10 BNA OSHC 1436, 1982 CCH OSHD ¶25,956 (No. 76–647, 1982), citing Diebold, Inc. v. OSHRC, 585 F.2d 1327, 1332 (6th Cir. 1978); cf. Noblecraft Industries, Inc. v. Secretary, 614 F.2d 199 (9th Cir. 1980). But nowhere in the Walsh-Healey Act, its legislative history, or the standards adopted under the statute is there any indication what ‘feasible’ meant under Walsh-Healey. Accordingly, unlike section 6(b)(5) of the OSH Act, for the Walsh-Healey noise standard there is no legislative support for interpreting ‘feasible’ as simply ‘achievable.’

In the absence of any ascertainable criteria to guide the enforcement of a standard, any interpretation given by the Commission is derived, not from the standard, but from the Commission majority’s own views of what the standard should say.[27] Such an interpretation is impermissible for any standard, but particularly for one that, like the noise standard, may impose enormous costs on industry to protect against a hazard that is not life-threatening.[28] The policy decisions that must be made in such a situation should be made in rulemaking, in which all persons affected by the standard have an opportunity to be heard. Indeed, the Secretary is currently engaged in a rulemaking proceeding aimed at determining the degree to which administrative or engineering controls must be used to protect against excessive noise.[29] It is incongruous for the Commission to apply the Supreme Court’s section 6(b)(5) definition of ‘feasible’ to the current standard’s requirement for administrative and engineering controls when the Secretary is considering in rulemaking the circumstances under which such controls are ‘feasible’ within the meaning of section 6(b)(5).

The extent of this incongruity is demonstrated by examining the nature of the policy decisions the Secretary must make in determining whether administrative and engineering controls are feasible within the meaning of section 6(b)(5). As noted above, note 3 supra, one report prepared for the Secretary calculated that the cost of achieving 90 dBA in all workplaces would approximate $13.5 billion, unadjusted for the inflation that has occurred in the past several years. The report also states that the cost of achieving the 85 dBA limit of the hearing conservation standard through engineering controls would approximate $31.6 billion, also unadjusted for inflation. The Secretary must consider the impact these costs will have on each industry affected by the standard, taking into account all the complex and critical factors listed by Commissioner Cleary in his separate remarks in this case. He must determine whether different requirements should be imposed on different industries either because the nature of the hazard differs between industries or because certain industries cannot afford to achieve noise levels that other industries can, and perhaps already have, obtained. See AFL–CIO v. Marshall, 617 F.2d 825 (D.C. Cir. 1979); see also 39 Fed. Reg. 43802 (Environmental Protection Agency’s comments in the Secretary’s rulemaking proceeding). He must consider whether a requirement for administrative or engineering controls should be phased in over a period of time, or whether different industries should be given different periods for compliance. The difficulty of making these determinations is illustrated by the fact that the Secretary has been unable to adopt a final standard in the approximately ten years he has had the issue under consideration.[30]

None of the factors bearing on economic feasibility under section 6(b)(5) were considered when the Secretary promulgated the present standard under the Walsh-Healey Act, and were also not considered when the Secretary followed the summary procedure for adopting that standard under the OSH Act. See Continental Can Co., 4 BNA OSHC at 1547, 1976–77 CCH OSHD at p. 25,256. The Secretary simply required that engineering or administrative controls be implemented if ‘feasible,’ without providing ascertainable criteria by which the meaning of ‘feasible’ could be determined. Indeed, the Secretary’s very purpose in using the word ‘feasible’ was probably to avoid establishing ascertainable criteria and to leave the interpretation of the word for a later day.

I recognize that, to this time, no court which has considered the noise standard has decided that it impermissibly delegates to the Commission the unbounded authority to establish criteria for its enforcement. Donovan v. Castle & Cooke Foods, supra; RMI Co. v. Secretary, supra; Turner Co. v. Secretary, supra; see also Diversified Industries Division, Independent Stave Co. v. OSHRC, supra. But the interpretation before these courts for their consideration was that set forth by the Commission in Continental Can, which represented a good faith attempt to give genuine significance to costs of compliance with the noise standard.[31] The Commission had not yet issued the decisions in Samson Paper Bag Co., supra, or this case, which so graphically illustrate that the word ‘feasible’ can mean whatever an individual adjudicator wants it to mean. Because the Commission majority has now retreated from Continental Can at the urging of the Secretary, and has substituted an unworkable test consisting of elements which the majority itself cannot clearly define, I conclude that the requirement of section 1910.95(b)(1) to abate by use of ‘feasible’ controls must be considered unenforceable.

III

Nobody can deny that protection against excessive noise is necessary. However, it is not necessary to enforce the requirement for ‘feasible administrative or engineering controls’ in section 1910.95(b)(1) to provide employees with such protection. The requirement of the Secretary’s new hearing conservation standard that employees be protected against excessive noise levels by personal protective equipment remains in force.[32] Indeed, in this case the employee allegedly exposed to excessive noise was wearing Swedish wool earplugs, and there is no allegation that this equipment was being improperly used.

The Secretary has been considering, in rulemaking, the circumstances in which engineering or administrative controls shall be required to supplement the protection afforded by the hearing conservation standard. The question requires the Secretary to consider a number of complex issues, including significance of the risk to employees despite the provisions of the hearing conservation standard and the economic feasibility of controls for all industries and industry segments affected by the standard. By their decision in this case, however, the majority short-circuits the statutory rulemaking process and decides that engineering or administrative controls must be implemented regardless of the efficacy or use of personal protective equipment. The majority further holds that the numerous and complex factors affecting the ability of employers to afford the cost of controls, factors that are peculiarly suited to consideration in rulemaking, must be addressed on a case-by-case basis in adjudication.

Thus, instead of the Commission applying ascertainable criteria established when the standard was promulgated, each Commission proceeding on a noise citation will become a mini-rulemaking proceeding. But because the record made in a proceeding before the Commission cannot possibly permit an intelligent evaluation of the factors the Secretary must consider in rulemaking, such Commission proceedings will inevitably result in arbitrary and unequal enforcement of the standard. Given the absence of any legislative history of the standard establishing ascertainable criteria for its enforcement, I would hold that the requirement for feasible engineering and administrative controls is unenforceable. I would leave the issue of when such controls should be required for the Secretary to resolve in rulemaking, the forum in which Congress intended such questions to be resolved.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 16118
SUN SHIP, INC.,
Respondent.

August 10, 1977

DECISION AND ORDER

APPEARANCES

FOR THE SECRETARY OF LABOR

Marshall H. Harris, Regional Solicitor Attn: Howard K. Agran, Esq. U. S. Department of Labor

FOR THE RESPONDENT

Pepper, Hamilton & Scheetz Attn: Kenneth L. Oliver, Esq. J. Anthony Messina, Esq.

Brennan, W. E.; A.L.J.

This action arises under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c) (hereinafter the Act), to review a Citation for nonserious violations of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2) and penalties proposed thereon issued pursuant to Sections 9(a) and 10(a) of the Act, 29 U.S.C. 658(a) and 659(a) by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Philadelphia, Pennsylvania (hereinafter Complainant), to Sun Shipbuilding and Drydock Company (hereinafter Respondent), following an inspection of Respondent’s shipyard located at the foot of Morton Avenue, Chester, Pennsylvania (hereinafter work site).

Between July 31, 1975, and September 30, 1975, three Industrial Hygienists—Compliance Officers (Clark, Dubin and Crenshaw), made an industrial hygiene inspection of Respondent’s work site. As a result of that inspection, Respondent, on November 26, 1975, was issued a Citation alleging nonserious violations of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2) for failure to comply with the Occupational Safety and Health Standards (hereinafter Standards) codified at 29 C.F.R. 1910.95, (Item No. 1) and 29 C.F.R. 1910.1000 (Item No. 2), as well as a Notification proposing a total penalty of $60 based upon Item No. 2 (R.pp. 1, 2).

A timely notice of contest to both Items of the Citation was filed by Respondent, through its counsel, pursuant to Section 10(c) of the Act, 29 U.S.C. 659(c) (R.p. 3).

After the filing of a Complaint (R.p. 6) and Answer (R.p. 8), this case was originally set down for trial for March 24, 1976 (R.p. J 1).

Item No. 1 of the instant Citation involved the so called ‘noise’ Standard, 29 C.F.R. 1910.95, and Item No. 2, the Air Contaminant Standard, 29 C.F.R. 1910.1000, and there ensued rather protracted pretrial procedures involving a reinspection of Respondent’s work site and discovery procedures (R.pp. J 2 through J 25).

On August 24, 1976, the Review Commission issued its Decision in the case of Sec. of Labor v. Continental Can Company, Inc., OSHRC Docket No. 3973, et al., which involved the noise Standard (29 C.F.R. 1910.95), and significantly altered the burden of proof of the parties to such a type of case. A further delay in this trial was occasioned awaiting the Complainant’s decision on whether to appeal the Continental Can case to an appropriate U. S. Court of Appeals (R.pp. J 26 through J 32). It was finally decided that any further delay of this trial pending the appeal in the Continental Can case was not warranted, and the trial was finally convened pursuant to written notice on January 12, 1977, concluding on the fifth day, with an intermittent recess, on March 10, 1977 (R.pp. J 32 through J 35). Both parties were represented by counsel. No affected employees or representatives thereof desired party status (Tr. Vol. I, p. 6). Post-trial briefs were finally received from both parties on May 23, 1977 (R.pp. J 50, J 51).

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations, admissions and arguments of the parties, it is concluded that the substantial, reliable and probative evidence of this record considered as a whole supports the following findings of fact and conclusions of law.

The citation as issued herein, set forth the following information:

Item No. 1

Description of Alleged Violation

29 C.F.R. 1910.95—Employees, in the following locations, were subjected to sound levels which exceeded the permissible exposures listed in Table G 16 of this section, and their exposures were not limited in accordance with the requirements of 29 CFR 1910.95(b)(1). The sound levels were obtained at the hearing zone of the employees:

a) Shot Blast Building—shot blast operator

b) Building No. 42, Blacksmith Shop—Blacksmith (grinding hatch opening rings and blacksmithing)

Employees at the preceding locations, ‘a’ and ‘b’, were subjected to sound levels for which the exposure fraction Cn/Tn (see Table G 16, Note #1) exceeded 1.0.

c) Building No. 30, Boiler Shop—arcair operator

Employee at the preceding location, ‘c’, was subjected to sound levels in excess of 115 dBA.

Abatement was ordered in accordance with a specific timetable set forth in the Citation, and a total penalty of $60, not allocated to any of the three specified locations, was intended to be proposed (see fn.[33], supra).

Item No. 2

Description of Alleged Violation

29 C.F.R. 1910.1000—Employees, in the following locations, were exposed to material listed in Table Z 1 of this section, and their exposures were not limited in accordance with the requirements of 29 CFR 1910.1000(a)(2), (d)(1) and (e). Samples were obtained at the breathing zone of the employees:

a) Building No. 30, Boiler Shop—arcair operator

Employees at the preceding location, ‘a’, were exposed to iron oxide fume concentrations in excess of 10 mg/M³ (eight-hour time-weighted average).

Abatement was ordered in the same fashion as under Item No. 1, and no penalty was intended to be proposed (R.pp. 1, 2).

The cited Standards provide:

Item No. 1

29 C.F.R. 1910.95

Occupational Noise Exposure

(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. When noise levels are determined by octave band analysis, the equivalent A-weighted sound level may be determined as follows:

(b)(1) When employees are subjected to sound exceeding those listed in Table G 16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G 16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

TABLE G–16—PERMISSIBLE NOISE EXPOSURES^1
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
¼ or less	115

(Footnote 1 omitted)

Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level.

(2) If the variations in noise level involved maxima at intervals of 1 second or less, it is to be considered continuous.

(3) In all cases where the sound levels exceed the values shown herein, a continuing, effective hearing conservation program shall be administered.

Item No. 2

29 C.F.R. 1910.1000

Air Contaminants

An employee’s exposure to any material listed in table Z 1, Z 2, or Z 3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.

(a) Table Z 1:

(2) Other materials—8-hour time weighted averages. An employee’s exposure to any material in table Z 1, the name of which is not preceded by ‘c’, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table.

Table Z-1
Substance	p/m	mg/M^3
Iron Oxide Fume		10

(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with § 1910.134.

The following matters were stipulated to by the parties at the outset of trial.

Exhibit C 1 was admitted into evidence (Tr. Vol. I, p. 7). Samples of the iron oxide contaminant obtained during the inspection of Respondent’s work site were sent to the National Institute’s Occupational Safety and Health analytical laboratory at Salt Lake City, Utah, where they were analyzed by Chemist Edward F. Zimowski. Exhibit C 1 sets forth the substance of this chemist’s testimony if he were produced as a witness, i.e., the receipt of the samples, the method used to analyze them, and the results of this analysis. These samples were found to contain iron oxide in excess of the 10 mg/M^3[34] limit set forth in the Standard, to wit; 23.4, 20.3, 27.2 and 19.9 mg/M3 (see Exhibit C 1, p. 3). This exhibit obviated the need to call this chemist and relates to Item No. 2 of the Citation.

Exhibit C 2, as amended by counsel at trial, was also admitted into evidence (Tr. Vol. I, pp. 7 12).

This exhibit involves Item 1(a) of the Citation, wherein, it is alleged that the shotblast operator, working in a shotblast building at the work site, was exposed to sound levels which exceeded the allowable levels set forth in the cited Standard, 29 C.F.R. 1910.95, supra.

At the close of the Complainant’s case, Respondent moved for the dismissal of the Citation. During argument on that motion, Item 1(a) of the Citation was found to have been established by the stipulation, Exhibit C 2. Because Respondent had implemented two of the three engineering controls suggested by Complainant in his reinspection of the work site thereby evidencing its good faith, it was concluded that no penalty (or portion of the $60 penalty proposed for all the alleged noise violations, Items 1(a), 1(b) and 1(c)), should be assessed (Tr. Vol. V, pp. 38 62). That ruling is hereby confirmed.

Further, at the beginning of trial, Complainant moved to vacate Item 1(c) of the Citation, on the ground that there exists no known engineering technology to reduce employee exposure who are arcairing[35] to permissible levels as set forth in Table G 16 of the noise Standard. This motion was granted, which ruling is hereby confirmed (Tr. Vol. I, pp. 12, 13).

Thus, at the outset of trial, there remained for resolution the one remaining alleged noise violation, Item No. 1(b), involving an employee located in Building No. 42 engaged in grinding hatch opening rings, with a hand held, pneumatic grinder, and Item No. 2, involving an employee in Building No. 30, the Boiler Shop, engaged in an arcairing operation and exposed to iron oxide fumes in excess of the limit permissible under the cited Standard.

It was additionally stipulated that Respondent is a Pennsylvania corporation with its principal office located at its shipyard in Chester, Pennsylvania. It purchases goods in excess of one million dollars a year from sources without the State of Pennsylvania. No injuries are connected with this case. It is a large employer in its geographic area, with an average daily number of 4000 employees. Its gross annual sales exceed 100 million dollars (Tr. Vol. I, pp. 17 21, Vol. II, p. 97).

Based upon the foregoing, it is concluded that Respondent is an employer engaged in a business affecting commerce who has employees within the meaning of Sections 3(5) and (6) of the Act, 29 U.S.C. 652(5) and (6). Upon the filing of the Notice of Contest herein, the Review Commission has jurisdiction in this matter pursuant to Section 10(c) of the Act, 29 U.S.C. 659(c).

The first issue to be decided is Respondent’s contention that it was improperly cited, in Item No. 2, for an alleged violation of the General Industry Standard codified at 29 C.F.R. 1910.1000 because the arcairing operation in process, which forms the factual basis of the allegation, involved shipbuilding and thus, a Maritime-Shipbuilding Standard, specifically 29 C.F.R. 1916.82(d)(1) should have been cited (see Respondent’s Brief, pp. 3, 4, 13 15; R.p. J 50).

The General Industry Standard codified at 29 C.F.R. 1910.5, in pertinent part, provides as follows:

Applicability of Standards

(c)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. For example, § 1501.23(c)(3) of this title prescribes personal protective equipment for certain ship repairmen working in specified areas. Such a standard shall apply, and shall not be deemed modified nor superseded by any different general standard whose provisions might otherwise be applicable, to the ship repairmen working in the areas specified in § 1915.23(c)(3).

(2) On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry, as in Subpart B or Subpart R of this part, to the extent that none of such particular standards applies. To illustrate, the general standard regarding noise exposure in § 1910.95 applies to employments and places of employment in pulp, paper, and paperboard mills covered in § 1910.261.

Respondent argues that the Shipbuilding Standard codified at 29 C.F.R. 1916.82(d)(1),[36] covers the activity here in question because the coverage of the Longshoremen and Harbor Workers Act (under which the Shipbuilding Standards were initially promulgated) has been judicially broadened under the recent case of Dravo Corp. v. Maxin, 545 F.2d 374 (CA 3, 1976). Thus, the employee who was arcairing in Respondent’s shipyard, although geographically removed from the ‘navigable waters of the U. S.,’ would be covered under the Dravo case, supra, and also thereby covered under the Shipbuilding Standard.

The solution to this issue, however, in my view, rests in determining the meaning of the above quoted ‘applicability’ provisions of the General Industry Standards, 29 C.F.R. 1910.5(c)(1) and (2).

Although the quoted provisions are far from a model of clarity, they appear to intend to make applicable to any given condition, the most specific Standard existent, whether a General Industry or particular industry standard regardless of where the alleged violative condition exists. Here, the General Industry Standard cited and relied upon by Complainant, 29 C.F.R. 1910.1000 is much more specific than the Shipbuilding Standard Respondent argues should apply. 1910.1000 makes reference to the specific offending air contaminant herein, iron oxide fume by name, and sets a specific employee exposure limit, 10 mg/M³, whereas the Shipbuilding Standard is more general in its terms.

It is therefore concluded that the appropriate and more specific General Industry Standard is properly cited and relied upon herein and Respondent’s argument is rejected.

The next issue raised is whether the remaining noise violation, Item 1(b), involving the grinding of hatch rings at Respondent’s work site, is established by the evidence of record.

In order to determine this question, reference must be made to the decision of the Commission in its precedent case, Sec. of Labor v. Continental Can Company, Inc., OSHRC Docket No. 3973 et al. (August 24, 1976).

Chairman Barnako, speaking for the majority, in part,[37] held that the Noise Standard, 29 C.F.R. 1910.95, ‘. . . requires only the implementation of those engineering controls which are economically, as well as technically feasible.’ (p. 3, Slip opinion). In short, the Chairman defined the word ‘feasible’ as it appears in the Noise Standard, to mean both ‘economically’ and ‘technically’—feasible.

Further, the Chairman stated:

In determining whether controls are economically feasible, all the relevant cost and benefit factors must be weighed. . . . 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 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.

The burden of proving that engineering or administrative controls are feasible lies with Labor. Love Box Co., OSHRC Docket No. 6286, BNA 4 OSHC 1138, CCH OSHD para. 20,588 (April 7, 1976); Reynolds Metals Co., OSHRC Docket No. 1551, BNA 3 OSHC 2051, CCH OSHD para. 20,447 (February 25, 1976).¹⁶

Fn 16 In Atlantic & Gulf Stevedores, Inc. v. OSHRC, [534 F2d 541 (3rd Cir., March 26, 1976)], the Court indicated that an employer could generally defend against an alleged violation of a standard by proving that the standard was not economically feasible as to him. The standard here at issue, unlike the one before the Court, explicitly requires only those engineering and administrative controls which are feasible. Accordingly, proof of feasibility is an element of the charge, and must be borne by Labor. In Love Box Co. and Reynolds Metals Co., supra, Labor conceded that it had the burden of proving the feasibility of engineering or administrative controls.’

(Slip opinion, pp. 18 20).

As of this writing, the Continental Can case has not been reviewed, reversed or modified by any U. S. Circuit Court of Appeals. It therefore constitutes Review Commission precedent which binds the undersigned and controls the determination of the issue stated, supra. Gindy Manufacturing Company v. Secretary of Labor, 10 OSAHRC 367, (May 7, 1974).

As Commissioner Cleary pointed out in his dissenting opinion in Continental Can, supra:

Perhaps the most disturbing aspect of the Chairman’s holding is his placing of the burden of proving the economic feasibility of engineering controls upon the Secretary. This imposition is contrary to settled principles of law. More importantly, however, it places upon the Secretary a burden that is so onerous that it may be impossible to satisfy. As a necessary consequence, therefore, it will be virtually impossible for the Secretary to enforce the noise standard so as to assure the continuing development and implementation of technologically feasible engineering controls.[38]

(Slip opinion, pp. 35 36).

As to the case herein, and the issue stated, supra, the evidence of this record does not establish the alleged noise violation set forth in Item 1(b). Under the Continental case burden of proof, Complainant failed to introduce any evidence whatever concerning the ‘. . . indirect costs due to any loss of productivity or efficiency resulting from . . .’, the implementation of ‘technically’ feasible engineering controls (i.e., a muffled air driven grinder and a wooden workbench), which the evidence does establish were available to this Respondent (see Tr. Vol. I, pp. 34 104, Exhs. R 1, R 2; pp. 113 202, Exhs. C 3, C 4, C 5, C 6).[39] At the close of the Complainant’s case, Respondent’s motion to dismiss Item 1(b) was granted for the foregoing reasons (Tr. Vol. V, pp. 3 89). This ruling is hereby confirmed.[40]

There remains for determination Item No. 2 of the nonserious Citation herein, which alleges that an arcair operator in Respondent’s Boiler Shop, was exposed to iron oxide fumes in excess of the 10 mg/M³ level set forth in the Air Contaminant Standard, 29 C.F.R. 1910.1000, and Respondent failed to determine and implement feasible engineering controls to reduce his exposure.

Paragraph (e) of the cited Standard provides:

To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section.

29 C.F.R. 1910.1000(e)

During trial, Respondent’s counsel argued that the term ‘feasible’ as it appears in the Air Contaminant Standard should be construed to mean what Chairman Barnako said ‘feasible’ means in the Noise Standard (29 C.F.R. 1910.95) in the Continental Can case. (Tr. Vol. V, pp. 90 126).

This argument is rejected. In my view, the term ‘feasible’ appearing in the Air Contaminant Standard means ‘practically possible of accomplishment under all of the circumstances of the case.’[41] (Tr. Vol. V, pp. 107, 127). ‘Feasible’ is defined in Webster’s New World Dictionary (The World Publishing Co., Second College Ed., 1974), as follows:

1. Capable of being done or carried out; practicable; possible. 2. Within reason, likely, probable. 3. Capable of being used or dealt with successfully; suitable.

Inherent in the foregoing definitions are concepts of both ‘technical’ and ‘economic’ feasibility. In my view, ‘economic’ feasibility, i.e., the financial capacity of an employer to implement engineering or administrative controls, otherwise ‘technically feasible,’ is properly a matter of an affirmative defense to be borne by employers, who are best situated to know their own financial status and the financial impact, both as to ‘direct’ and ‘indirect’ costs, implementation of ‘technically’ feasible controls will have.

The definition ‘announced’ (as Respondent puts it), at trial, in the absence of authority to the contrary, is therefore used herein to determine the alleged iron oxide violation.

Industrial Hygienist Martin Dubin, on September 30, 1975, very professionally, carefully and competently obtained air samples from the breathing zone of the arcairing employee, Mr. Wilson.[42] These samples, properly handled throughout, were ultimately analyzed at the Salt Lake City laboratory of NIOSH. This analysis revealed concentrations of iron oxide, in these samples to be as follows: 23.4 mg/M³; 20.3 mg/M³; 27.2 mg/M³; 19.9 mg/M³. From these results, the eight hour time weighted exposure of Mr. Wilson to the iron oxide fumes, was properly calculated to have been 13.986 mg/M³, thus exceeding the 10 mg/M3 Standard limit. (Tr. Vol. II, pp. 5 94).

The evidence of record clearly establishes Mr. Wilson’s exposure to a level of iron oxide fumes in excess of the limit set forth in the Standard. It further establishes, however, without contradiction, that throughout this arcairing operation, Mr. Wilson wore a respirator. It was Respondent’s practice, to issue a respirator, either air line or canister type depending on the type of arcairing to be performed, to any employee who is to do arcairing, with the arcairing tool and equipment from the tool room, prior to each arcairing operation. (Tr. Vol. II, pp. 98 109). Instructions on how to use these respirators are given employees and Respondent’s safety personnel regularly inspect and enforce the use of this respiratory equipment. (Tr. Vol. II, p. 113; Vol. V, p. 150).

Thus, the question presented by this case is whether there existed ‘feasible’ administrative or engineering controls to achieve compliance with the cited Standard, 29 C.F.R. 1910.1000(e). If so, a violation has been established. If not, Respondent was justified in resorting to ‘protective equipment,’ i.e., respirators, as spelled out in paragraph (e) of 1910.1000 for the arcairing operation in question; and no violation existed.

The evidence reveals that Respondent’s Boiler Shop, within which the arcairing operation in question took place, is approximately 500 feet long and 120 feet wide. This building is divided into two open areas, the low bay and high bay. The low bay is about 45 feet high, the high bay 70 to 75 feet high. In the low bay, two 25-ton overhead cranes operate at about 25 feet from the floor. In the high bay, one 100-ton and three 35-ton overhead cranes also operate. This Boiler Shop, like Respondent’s other operations, is essentially a job shop, that is, there exists no production line type of operation. Many varied and individualized parts for ships are fabricated therein, such as bulbous bows, rudders, propellers, boilers, smoke stacks and the like. Many of these ship components are of gigantic size and weight, are fabricated at varying locations within the Boiler Shop on a space available basis. Thus, the physical layout of this shop varies from day to day. (Tr. Vol. V, pp. 177 180, 221 245).

The arcairing type of operation is used extensively throughout Respondent’s shipyard and as many as 50 such operations may be in progress on any given day. Within the Boiler Shop, as many as seven or eight arcairing operations are frequently in progress. Large ventilating blowers or fans, capable of moving 186,000 cubic feet of air per minute are located in the roof of the Boiler Shop. Individual local ventilation equipment is provided to all welders and for employees working in enclosed spaces on ships. Respondent employs ventilation control experts to assure adequate ventilation in enclosed spaces which abound at this shipyard. (Tr. Vol. II, pp. 100, 112; Vol. V, pp. 205 210).

On the day of the inspection, Mr. Wilson was working in the low bay of the Boiler Shop about 50 feet in from the river end of this building. He was engaged in arcairing a large cone and a cylinder. The cylinder was a portion of an inner smoke stack and was about 5 feet in diameter and 30 feet long, and was laying on its side, on a platen (platform), thus resembling a large pipe. Respondent’s quality assurance inspectors had marked various welds and other areas on the surface of the cylinder which required arcairing. To accomplish the arcairing, staging had been erected alongside of this cylinder, and Mr. Wilson was observed to arcair from the staging, 5 to 6 feet off the floor, as well as on the bottom portion of the cylinder, about 2 feet from the floor. Upon completion of the arcairing operation, inspectors would reinspect the areas. Other work was performed on this cylinder during the total arcairing process, such as rewelding joints and further inspections. This cylinder was in the Boiler Shop for approximately 45 days and arcairing took place inside as well as outside of the cylinder. (Tr. Vol. V, pp. 177 189, 191, 230). There is no evidence in this record concerning the specifics of the large cone Mr. Wilson was arcairing on the day of the inspection.

As noted earlier, the arcairing process involves melting unwanted metal, such as a defective weld, to a molten state and blowing this molten metal away from the surface by a jet of high velocity air, emitted from the arcairing tool at from 80 to 100 psi (pounds per square inch). The molten metal, which generates the iron oxide fumes, is thus blown away at about 100 to 125 feet per second (Tr. Vol. III, pp. 90 91). There is thus produced a large, defused shower of sparks and molten metal propelled in a direction away from the operator. If the arcairing operation is a shallow cut, the fume cloud is closer to the operator than if a deep cut is being made. In the latter case, a tunnel like effect is produced and the fume cloud is propelled as far as 25 feet from the operator (Tr. Vol. V, pp. 230, 231). The trajectory of the shower of sparks and molten metal, as well as the iron oxide fume cloud, will also vary depending upon the geometry or shape of the surface being arcaired.

Respondent produced a representative from the Arc Air Company, the manufacturer of the arcair tool used by Mr. Wilson. Although this company, through its Research and Development Department, is currently working in both the noise and fume control area, having spent about $100,000 for various consultants, it as yet has not been successful in devising any system to effectively vent arcairing fumes under the conditions existent at Respondent’s work site. Further, he was unaware of any commercially available equipment for dealing with this problem (Tr. Vol. III, pp. 86 142).

Respondent has also performed several experiments attempting to collect and vent away arcairing fumes which were not successful. In 1970, Respondent found that its experimental collector was not successful because the molten metal damaged the impellers in the ventilating blowers and clogged the filters (Tr. Vol. V, pp. 225 227).

Complainant’s primary witness concerning the arcairing operation, Mr. Gronka, an Industrial Hygiene Engineer with a private consultant firm, testified at considerable length to three proposed engineering methods to ventilate the iron oxide fumes away from Mr. Wilson while working on the cylinder. (Mr. Gronka made a post-inspection visit to Respondent’s Boiler Shop on May 7, 1976. The cylinder in question was no longer there. He reviewed Industrial Hygienists Dubin’s notes to visulize the arcairing operation in question.)

He first suggested the most simple devise, a pedestal fan to blow the iron oxide fume cloud away from Mr. Wilson (Tr. Vol. II, pp. 182 188). He next recommended a ‘lamb’ air mover, which is nothing more than a relatively high velocity, directional fan, to blow the fumes away from Mr. Wilson.

Neither of these suggestions, however, are practical, as pointed out by Respondent’s Safety Director, Mr. Walton. Either system merely moves the iron oxide fume cloud from one location to another, which, because of the job shop nature of Respondent’s work site, in all probability, would result in blowing the fumes onto nearby workers. Additionally, the high velocity fan (variously denominated a ‘lamb’ air mover, squirrel cage or copas blower), would subject an arcair operator to a significant draft and thus a possible health hazard. Further, any high velocity air mover would also blow dust particles about, with a significant chance of causing such particles to be blown into the eyes of nearby workers, compounding an already common employee complaint of foreign matter in their eyes. Furthermore, because arcairing operations involve the frequent movement of the operator from one location to another upon the huge structures involved, any fan type of ventilation would require the repositioning of any type of fan being used. This would have to be done by ventilation employees, not the arcair operator, or a jurisdictional labor dispute might well ensue (Tr. Vol. V, pp. 211, 216 236).

Mr. Gronka’s next suggestion was a system of fume collection and exhaustion away from the operator outside of the building. These systems were to employ various types of collection hoods, connected by duct work to exhaust fans and by additional duct work to outside of the building. Exhibits C 7(a), (b), (c) and C 8 are copies of diagrams depicting these suggested engineering controls. Such exhausting suggestions also involved the use of a platen or platform with motorized rollers, onto which the stack in question would be placed, and rotated so that the arcairing operation could be done at a constant, fixed level off the floor.

These systems all have significant difficulties which make them impracticable. As pointed out by Respondent’s Safety Director, if Respondent’s work site involved the same operation on a day-to-day basis, perhaps such systems might be made to work effectively. However, Respondent’s work is just the contrary, with a constantly changing work environment, with differently shaped, large components of ships being fabricated at ever changing locations within the Boiler Shop. The collection hoods also present a significant problem. The molten metal and sparks created by the arcairing process, being jetted away at high speed from the point of burning, would strike the collection hood and bounce back at the operator, thus subjecting him to the danger of burns. These hoods, to be effective in any way, would have to be positioned at a very precise distance and angle to the point of burning, which would require the constant adjustment of them from one spot to another as the various locations on the stack would be arcaired. Because of the mechanically limited range and configuration which the hooded ducts are capable of, such a system would not be possible of use inside of large ship parts, such as the bulbous bows or rudders, the interior of which are webbed with reinforcing steel supports. Additionally, the duct work to carry off the fumes would significantly interfere with the movement of the overhead cranes in this Boiler Shop.

The very large, skid mounted exhaust fan also suggested is likewise not practical (See Exhibit C 9). Its implementation would require frequent repositioning within the Boiler Shop, which would require the use of overhead cranes as well as flexible duct work running on the Shop floor to the fan. This ducting on the Shop floor of course would create a tripping hazard.

The use of the platen equipped with motorized rollers, to position the cylinder at issue at a constant fixed level (a necessary part of the fume collection, hood suggestion), is also impractical, because of the necessity for other employees to work upon and within the cylinder during arcairing operations (Tr. Vol. II, pp. 124 214, 215 233; Vol. III, pp. 5 85; Vol. IV, pp. 9 28, 29 103; Vol. V, pp. 133 258).

Although the evidence of record is rather meager as to the toxicity of iron oxide fumes, both parties appear to agree that these fumes present the lowest form of toxicity and constitute no risk of permanent physical injury or disability to employees. It is compared to nuisance dust (Tr. Vol. IV, pp. 17 21; Exh. C 10).

Thus, when dealing with a substance of such admittedly low toxicity, if toxic at all on this record, the Complainant’s burden of proving the feasibility, i.e., practicality of suggested engineering or administrative controls, is higher than if a more toxic air contaminant were involved. Similarly, Respondent’s burden of showing infeasibility, i.e., impracticality is proportionately reduced.

The evidence is also clear and unrebutted that Respondent’s employees, including Mr. Wilson, who carry out arcairing operation at this work site, are adequately protected from iron oxide fumes by well maintained respirators, the use of which is closely monitored and enforced by Respondent’s Safety Division.

Upon the evidence of record herein, it is therefore concluded that there existed no feasible engineering or administrative controls available to Respondent for the arcairing operation in question on the day of the inspection. Respondent’s utilization of personal protective equipment, i.e., a respirator for the employee engaged in this operation, conformed to the requirements of the Air Contaminant Standard, 29 C.F.R. 1910.1000, and thus, no violation of this Standard has been established.

Based upon the foregoing findings and conclusions, and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, 29 U.S.C. 659(c) and 661(i), it is hereby,

ORDERED:

1. That Item No. 1(a) of the Nonserious Citation herein, alleging a violation of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), for failure to comply with the Noise Standard set forth at 29 C.F.R. 1910.95, is AFFIRMED. No penalty is ASSESSED.

2. Items No. 1(b) and 1(c) of said Citation are VACATED.

3. Item No. 2 of said Citation, alleging a violation of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2) for failure to comply with the Air Contaminant Standard set forth at 29 C.F.R. 1910.1000 is VACATED.

WILLIAM E. BRENNAN

Adm. Law Judge, OSHRC

Dated: August 10, 1977

Hyattsville, Maryland

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[1] 29 C.F.R. § 1910.95(b)(1) provides:

§ 1910.95 Occupational noise exposure.

(b) (1) When employees are subjected to sound exceeding those listed in Table G–16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G–16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

TABLE G–16—PERMISSIBLE NOISE EXPOSURES^1
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
¼ or less	115

¹ When the daily noise exposure is composed of two or more periods of noise exposure of different levels, their combined effect should be considered, rather than the individual effect of each. If the sum of the following fractions: C1/T1 + C2/T2 Cn/Tn exceeds unity, then, the mixed exposure should be considered to exceed the limit value. Cn indicates the total time of exposure at a specified noise level, and Tn indicates the total time of exposure permitted at that level.

Exposure to impulsive or impact noise should not exceed 140 dBA peak sound pressure level.

[2] The Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’ or ‘the OSH Act’).

[3] Section 6(b)(5), 29 U.S.C. § 655(b)(5), of the Act provides in pertinent part:

The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity. . . .

[4] The case is before the Commission pursuant to § 12(j) of the Act, 29 U.S.C. § 661(i). Prior to the Supreme Court’s decision in ATMI, the parties filed briefs with the Commission. The Secretary contended that Continental Can was wrongly decided and that, under a proper burden of proof, his case was sufficient. Sun Ship contended that the Secretary’s case was insufficient under Continental Can and therefore was properly dismissed.

[5] Sun Ship argued to the judge and on review that the Secretary was required, as a part of his prima facie case, to establish the feasibility of the proposed engineering controls for all other, similar operations performed in Sun Ship’s facility, not just the feasibility of controls for the one cited operation. A similar claim was made in Carnation Co. v. Secretary of Labor. The Court of Appeals for the Ninth Circuit held that the employer must be given the opportunity to show ‘that a piecemeal approach differs significantly from a plant-wide approach,’ 641 F.2d at 805, and that, if the employer shows there would be significantly different results, then the Secretary must show that his controls are feasible for the entire plant.

[6] Section 6(b) authorizes the Secretary to adopt safety and health standards after notice and an opportunity to comment. See §§ 6(b)(2)–(4). Section 6(b)(5) contains specific requirements imposed on ‘[t]he Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection. .. .’ In ATMI the Supreme Court reviewed a standard regulating exposure to cotton dust which was adopted pursuant to § 6(b)(5).

[7] Section 6(a) authorized the Secretary to adopt safety and health standards without regard to other requirements for notice and comment rulemaking proceedings in the Administrative Procedure Act, 5 U.S.C. §§ 551–706, and in this Act. The authority was limited to the two years following the effective date of the Act and concerned adoption of national consensus standards, see 29 U.S.C. § 652(9), and established federal standards, see 29 U.S.C. § 652(10). See generally S. Rep. No. 1282, 91st Cong., 2d Sess., at 5–6, reprinted in Legislative History of the Occupational Safety and Health Act of 1970, at 145–46 (1971). The noise standard, § 1910.95, was an established federal standard adopted as an occupational safety and health standard pursuant to § 6(a). The standard was originally promulgated by the Secretary under the Walsh-Healey Act, 41 U.S.C. §§ 35–45.

[8] Our dissenting colleague claims that the Commission errs in applying the Court’s ATMI interpretation of the statutory term ‘feasible’ to the interpretation of the same term in a section 6(a) standard. This new interpretation conforms the Commission’s interpretation of ‘feasibility’ to the language and intent of the Act as interpreted by the Supreme Court. Moreover, reappraisal of precedent is permissible in the administrative process though the reversal of precedent must be guided by caution. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265–6 (1975); Atchison, Topeka & Santa Fe R.R. Co. v. Wichita Board of Trade, 412 U.S. 800 (1973); NLRB v. Wentworth Inst., 505 F.2d 550, 555 (1st Cir. 1975). Accordingly, we reject our dissenting colleague’s suggestion that the Commission’s overruling of its precedent of 6 years and its substitution of a new interpretation of the term ‘feasible’ supports his contention that the standard is unenforceably vague.

[9] The United States Court of Appeals for the Ninth Circuit recently issued its decision in Donovan v. Castle & Cooke Foods, A Div. of Castle & Cooke, Inc., No. 77–2565 (9th Cir. Nov. 19, 1982), affirming a 1977 Commission decision that applied the Continental Can cost-benefit test. The court concluded that the Commission’s interpretation was ‘neither unreasonable, arbitrary, nor an extension of the authority granted the Commission by the Act,’ slip. op. at 13, under the applicable standard for judicial review of agency decisions, slip. op. at 6. The court deferred to the Commission’s expertise in interpreting the standard. This case involves a necessary reevaluation of Continental Can and a reinterpretation of the noise standard in light of the Supreme Court’s decision in ATMI.

The Ninth Circuit considered the Supreme Court’s interpretation of the term ‘feasible’ in section 6(b)(5) of the Act to be inapplicable to section 6(a) standards. However, we treat as identical the term ‘feasible’ in the statute and the noise standard. When Congress authorized the Secretary to adopt established federal standards and national consensus standards as occupational safety and health standards, it understood that the Walsh-Healey standards would be the primary source of established federal standards for covered workplace hazards. General Motors Corp., GM Parts Div., 81 OSAHRC 13/C10, 9 BNA OSHC 1331, 1336–37, 1981 CCH OSHD ¶25,202 at pp. 31,122–24 (No. 79–4478, 1981), appeal dismissed, No. 81–3194 (6th Cir. Sept. 16, 1981). Several of these standards, like the noise standard, regulated exposure to ‘toxic materials’ and ‘harmful physical agents’ and contained feasibility requirements. At the same time that Congress authorized the adoption of section 6(a) standards, it authorized the promulgation of standards dealing with toxic materials or harmful physical agents under section 6(b)(5). Section 6(b)(5) also contains a feasibility requirement. There is no indication that Congress intended the feasibility requirement of existing standards that the Secretary was authorized to implement immediately to be measured by a different criterion than feasibility under section 6(b)(5).

Accordingly, we respectfully decline to acquiesce in the Ninth Circuit’s divergent interpretation of the term ‘feasible.’ Rather, we view the ATMI interpretation to be applicable to the regulation in question. Cf. Baroid Div. of N.L. Industries, Inc. v. OSHRC, 660 F.2d 439, 447 (10th Cir. 1981) (definition of ‘feasible’ as economically and technologically capable of being done applied to a section 5(a)(1) violation based on Supreme Court’s definition in ATMI).

[10] In an early case involving a challenge by a union to the promulgation of a § 6(b)(5) standard, the Court of Appeals for the District of Columbia Circuit held that the Secretary could properly consider the economic impact on an industry in determining whether a standard is feasible. Industrial Union Department, AFL–CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974). That holding has been followed in other decisions involving challenges to 6(b)(5) standards. United Steelworkers of America, AFL–CIO–CLC v. Marshall, 647 F.2d 1139, 1265 (D.C. Cir. 1980), cert. denied, 101 S.Ct. 3148 (1981); American Iron & Steel Institute v. OSHA, 577 F.2d 825 (3d Cir. 1978), cert. dismissed, 448 U.S. 917 (1980). Thus, by the time ATMI was decided by the Supreme Court, there was no longer any real dispute that the Secretary could, and indeed must, consider the economic impact on an industry in determining feasibility. Indeed, in the industry challenge to the cotton dust standard that led to the Supreme Court’s decision in ATMI, the D.C. Circuit held that the Secretary had not established the economic feasibility of the standard for the cottonseed oil industry. AFL–CIO v. Marshall, 617 F.2d 825 (D.C. Cir. 1979). That holding was not in issue before the Supreme Court.

[11] The initial inquiry into feasibility of administrative or engineering controls involves whether such controls are technologically feasible. The Commission has held that, because the standard expressly requires that administrative or engineering controls be used in preference to personal protective equipment, controls which achieve a significant reduction in noise exposure will be deemed technologically feasible even if they do not result in absolute compliance with Table G–16 levels. Continental Can Co., 4 BNA OSHC at 1545–46, 1976–77 CCH OSHD at pp. 25,254–55; see also Samson Paper Bag Co., supra; Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1976–77 CCH OHSD ¶21, 023 (No. 3635, 1976), rev’d on other grounds, 561 F.2d 82 (7th Cir. 1977). This test for technological feasibility is consistent with the ordinary meaning of ‘feasible’ as set forth by the Supreme Court in ATMI.

[12] In most cases arising under the noise standard, there will not be a serious question of the employer’s ability to afford the cost of technologically feasible controls; economic feasibility will be clear. See, e.g., Continental Can Co., 4 BNA OSHC at 1542 n.4, 1976–77 CCH OSHD at p. 25,251 n.4. It has been our experience that the controls suggested by the Secretary in cases arising under section 1910.95(b)(1) are not generally so expensive as to give rise to substantial question of their economic feasibility. Moreover, in most cases it will be possible to alleviate the employer’s financial difficulty by extending the time required for the installation of controls. See Samson Paper Bag Co., supra (lead and separate opinions). Thus, in cases where financial hardship is asserted, the Commission will consider whether this hardship can be adequately cured through an extended abatement date before concluding that the controls are infeasible.

Commissioner Cleary notes that, when there is a question whether controls will be so costly as to threaten an employer’s ability to remain in business, a range of economic factors may merit consideration. These factors could include the competitive structure of the industry involved, the competition that the industry faces from other industries or from other countries, inflation, the ability of the company to raise capital, its ability to alter employees’ work schedules and assignments, its other capital investment requirements, energy costs, and the like. See ATMI; Samson Paper Bag, supra (Cleary, concurring).

[13] In Commissioner Cleary’s view, the Secretary may make out a prima facie showing of economic feasibility by showing that the estimated costs of the controls are small compared with other figures that represent the company’s financial ability. For example, if implementation of the controls would require an initial capital investment, the Secretary could show that the company regularly makes capital investments that are substantially larger than implementation of the controls would require. If the controls would involve annual costs, the Secretary could show that the company’s annual cash flow or profits, over a representative period of time, are substantially larger than the annual cost the controls would impose. Such information is readily available to the Secretary either through public reports that corporations must file or through discovery.

The employer may then rebut the Secretary’s case by showing that the cost figures are incorrect or that additional, indirect, costs will be incurred, or that any of the factors listed above, such as the competitive structure of the industry, make controls infeasible. The employer may also rebut the Secretary’s case by showing that while controls for the cited locations are economically feasible, the cost of plant-wide controls would exceed the bounds of economic feasibility. Carnation Co. v. Secretary of Labor, 641 F.2d 801 (9th Cir. 1981).

[14] The following fractions were added:

1/1.5 + 2/8 + 1/infinity (zero) + 3.25/6

(The permissible time for exposure to 102 dBA is 1.5 hours, for 90 dBA is 8 hours, for less than 90 dBA is unlimited, and for 92 dBA is 6 hours).

[15] The expert estimated that the muffler could be designed in one day for about $400. In two days, a draftsman could produce detailed engineering design drawings and investigate the availability of materials. The cost for the draftsman’s work would be about $800. The expert estimated that additional expenses could bring the design cost to about $1500.

The expert further estimated that labor for making the housing would be about $120 (for 6 hours at $20 per hour). Labor at the same wage rate for the muffler would be about $80 (4 hours) and about $80 (4 hours) to apply the parts to the tool. The expert estimated the cost of materials at about $40, for a total fabrication cost of approximately $320.

[16] Because the compliance officer detected noise levels of 102 dBA when there was no background noise (from other employees working near the blacksmith), we do not ascribe any part of the elevated noise levels to background noise.

[17] The Secretary’s expert did not specify what dBA reduction he would expect from the sound-dampening workbench, but he testified that it should be made of wood which he stated has ‘significant’ sound-dampening properties. He also specified that the workbench should have clamps to hold the workpiece in place firmly against the wood. Thus, most if not all vibration noise can be eliminated using the wooden workbench with clamps.

[18] On the basis of the expert’s testimony, see note 17 supra, most of the vibration noise can be eliminated. Because the noise level was 102 dBA when the blacksmith was exposed only to the noise generated by grinding metal and about 10 dBA of this noise level was vibration noise, we find that using the proposed workbench can be expected to reduce the vibration noise by approximately 7–8 dBA. Adding to this the 3 dBA reduction in grinder noise, the 102 dBA noise level can be reduced by about 10–11 dBA. The computation based on Table G–16 and the footnote to it, see note 1 supra, will be:

1/6 + 2/8 + 1/infinity (zero) + 3.25/6

(The permissible time for exposure to 92 dBA is 6 hours.)

The compliance officer’s computation was:

1/1.5 + 2/8 + 1/infinity (zero) + 3.25/6

The sum will be .96 rather than 1.46. See note 14 supra and accompanying text. The total reduction may be even greater. The expert stated that a 6 dBA reduction in grinder noise from the muffler could be possible.

[19] The cases relied on by our dissenting colleague in support of his conclusion that the noise standard is unenforceable because it is ‘so uncertain of meaning as to result in arbitrary and discriminatory treatment’ are inapposite to these proceedings because they involve either criminal or First Amendment issues. The standard for review of the constitutional sufficiency of a regulatory warning is not the ‘reasonably explicit’ test taken from Grayned v. City of Rockford, 408 U.S. 104 (1972). As the omitted footnote citations to Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972), reveal, the test of Grayned is subject to the qualification that administrative regulations are governed by a less stringent standard. 408 U.S. at 108–09 nn. 3 & 4; see Diebold, Inc. v. OSHRC, 585 F.2d 1327, 1337 (6th Cir. 1978).

When considering remedial legislation such as the OSH Act and its implementing regulations, the purported vagueness of a standard is judged not on its face but rather in the light of its application to the facts of the case. PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 897 (1st Cir. 1981); McLean Trucking Co. v. OSHRC, 503 F.2d 8, 10–11 (4th Cir. 1974). Moreover, the regulations will pass constitutional muster even though they are not drafted with the utmost precision; all that due process requires is a fair and reasonable warning. Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27, 30 (7th Cir. 1976).

Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary of Labor & OSHRC, 674 F.2d 1177, 1185 (7th Cir. 1982). See Diebold, Inc. v. OSHRC, supra, citing, Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952). A standard is not unconstitutionally vague simply because judgment must be exercised in determining its application. See Bethlehem Steel Corp., 82 OSAHRC ___, 10 BNA OSHC 1673, 1677 n.8, 1982 CCH OSHD ¶26,093 at p. 32,832 n.8 (No. 77–1807, 1982). See Turner Co., supra note 11. A standard must be read in light of the conduct to which it is addressed. United States v. National Dairy Products, Inc., 372 U.S. 29, 36 (1963); Bethlehem Steel Corp., supra.

Additionally, while we do not agree with the dissenting Member that the standard in question is constitutionally infirm, we note that

[I]t is axiomatic that defects in the constitutional sufficiency of a regulatory warning may be cured by authoritative judicial or administrative interpretations which clarify obscurities or resolve ambiguities.

Diebold, Inc. v. OSHRC, 585 F.2d at 1338 (footnote omitted), citing, Rose v. Locke, 423 U.S. 48, 52 (1975); Parker v. Levy, 417 U.S. 733, 752–54 (1974); Smith v. Gougen, 415 U.S. 566, 575 ( 974); Wainwright v. Stone, 414 U.S. 21, 22–23 (1973); Jackson v. Dorrier, 424 F.2d 213, 217–18 (6th Cir.), cert. denied, 400 U.S. 850 (1970). See S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1264 & n.14, 1978 CCH OSHD ¶23, 490 at p. 28,437 & n.14 (No. 15855, 1979), rev’d on other grounds, 659 F.2d 1273 (5th Cir. 1981).

The Commission has consistently and repeatedly held that the noise standard is not unenforceably vague. E.g., Turner Co., supra, cited in Wheeling-Pittsburgh Steel Corp., 79 OSAHRC 66/A2, 7 BNA OSHC 1581, 1979 CCH OSHD ¶23, 784 (No. 14702, 1979); Wheeling Corrugating Co., A Div. of Wheeling-Pittsburgh Steel Corp., 77 OSAHRC 204/E9, 6 BNA OSHC 1661, 1977–78 CCH OSHD ¶22,350 (No. 13286, 1977), petition denied, No. 77–1030 (3d Cir. Nov. 20, 1978); Castle & Cooke Foods, A Div. of Castle & Cooke, Inc., 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977–78 CCH OSHD ¶21,954 (No. 10925, 1977), aff’d, No. 77–2565 (9th Cir. Nov. 19, 1982); accord Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283 (9th Cir. 1979); cf. Turner Co. v. Secretary of Labor, 561 F.2d 82, 84 (7th Cir. 1977) (consideration of relevant economic considerations under Continental Can will ‘obviate any due process challenge’). The term ‘feasible’ is not so devoid of meaning that a fair determination of the required conduct cannot be made. See Boyce Motor Lines v. United States, supra. Furthermore, one of the cases relied on by our colleague indicates that perceived ambiguities can be cured by interpretation—a course that is preferable to invalidation. See International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 822 (5th Cir. 1979).

In ATMI v. Donovan, the Court determined that the term ‘feasibility’ had an ascertainable meaning based on the statute. 101 S.Ct. at 2490. The definition set forth by the Court is applicable to the regulation at issue. We reject our colleague’s suggestion that the term is devoid of meaning.

[20] Commissioner Cottine further notes that the dissent’s conclusion that the noise standard represents an impermissible delegation depends on the erroneous premise that the noise standard is vague. The dissent characterizes the noise standard as an impermissible delegation to the Commission of the Secretary’s authority to promulgate standards and establish enforcement criteria under the Act. This broad characterization ignores the fact that the noise standard establishes a definite criteria for occupational noise exposure—an 8-hour time weighted average of 90 dBA. § 1910.95(a). This required performance is to be achieved by ‘feasible’ administrative or engineering controls. § 1910.95(b). As previously noted, the term ‘feasible’ permits a fair determination of the required conduct and is capable of application to the factual controversies presented to this adjudicatory forum. See Boyce Motor Lines v. United States, supra note 19. Like any factual inquiry ‘feasibility’ is determined by the unique characteristics of an employer’s economic conditions and the technological attributes of the abatement methodology. The ‘feasibility’ criterion is ascertainable and the possibility of more than one interpretation does not justify invalidation under the delegation doctrine. ATMI v. Donovan, 101 S.Ct. at 2506 n.75. The mere fact that a term requires a factual analysis does not invalidate the standard. Factual determinations are both the heart of adjudication and the focus of delegation. See Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442, 449–60 (1977). See generally L. Jaffe, Judicial Control of Administrative Action ch. 3 (1965). Moreover, a feasibility determination is the type of complex fact-finding regularly committed to an administrative agency for specialized adjudication in the context of the forum’s experience and expertise. See, e.g., Crowell v. Benson, 285 U.S. 22, 46–47 (1932); Reconstruction Finance Corp. v. Bankers Trust Co., 318 U.S. 163, 170 (1943). Accordingly, Commissioner Cottine rejects the dissent’s conclusion that the noise standard is unenforceable because the regulatory use of the term ‘feasible’ results in an impermissible delegation.

In addition, Commissioner Cottine notes that the Commission’s adjudicatory responsibility does not permit it to question a standard’s stringency or appropriateness. W.J. Lazynski, Inc., 79 OSAHRC 108/B6, 7 BNA OSHC 2064, 2072, 1980 CCH OSHD ¶24,145 at p. 29,336 (No. 13864, 1979); Austin Bridge Co., 79 OSAHRC 81/A2, 7 BNA OSHC 1761, 1764, 1979 CCH OSHD ¶23,934 at p. 29,021 (No. 76–93, 1979); Fleming Foods of Nebraska, Inc., 77 OSAHRC 196/C12, 6 BNA OSHC 1233, 1978 CCH OSHD ¶22,889 (No. 14484, 1977). However, the Commission’s independent adjudicatory responsibility necessarily includes the interpretation of the statute and its implementing regulations. Donovan v. Castle & Cooke Foods Div., Castle & Cooke, Inc., No. 77–2565, slip op. at 7 (9th Cir. Nov. 19, 1982) and cases cited; Brennan v. OSHRC & Ron M. Fiegen, Inc., 513 F.2d 713 (8th Cir. 1975). In interpreting the term ‘feasibility,’ it is irrelevant that the Secretary has under consideration revisions to the present standard, see, Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1111 (7th Cir. 1982); Koppers Co., Inc., 77 OSAHRC 44/A2, 2 BNA OSHC 1354, 1974–75 CCH OSHD ¶ 19,063 (No. 3449, 1974); United States Steel Corp., 77 OSAHRC 12/C3, 2 BNA OSHC 1343, 1974–75 CCH OSHD ¶19, 047 (Nos. 2975 & 4349, 1974) (alternate holding), appeal dismissed, 517 F.2d 1400 (3d Cir. 1975), or that individual members of the Commission have expressed differing personal views on the proper interpretation of this term, see Public Service Commission of the State of New York v. Federal Power Commission, 543 F.2d 757, 777–78 (D.C. Cir. 1974). It is the Commission’s institutional responsibility as an adjudicatory body, 29 U.S.C. § 651(b)(3), to apply precedent unless overruled or distinguished, see Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412 U.S. 800, 808 (1973); Secretary of Agriculture v. United States, 347 U.S. 645 (1954); Local 777, Democratic Union Organizing Committee Seafarers Int’l Union of North America v. NLRB, 603 F.2d 862, 894 (D.C. Cir. 1978), and to interpret the applicable legal requirements in the context of factual controversies.

[21] American Textile Manufacturers Institute v. Donovan, 101 S.Ct. 2478 (1978) (‘ATMI’).

[22] 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976–77 CCH OSHD ¶21,009 (No. 3973, 1976), appeal withdrawn, No. 76–3229 (9th Cir. Apr. 26, 1977) (‘Continental Can’).

[23] Engineering controls to reduce noise levels can be very expensive. A study prepared for OSHA in the early 1970’s projected that the cost of achieving the 90 dBA 8-hour time weighted average limit of the noise standard using engineering controls would be about $13.5 billion. 1973–74 CCH Developments ¶ 9126. And, since that time, inflation has undoubtedly increased the cost considerably. In contrast, according to OSHA’s preamble to the new hearing conservation standard, 46 Fed. Reg. 4078, 4117–18 (1981), the cost of a hearing protection program meeting the requirements of the new standard is expected to be, at most, $270 million.

The cost of engineering controls obviously will fall unevenly on different industries and different employers within an industry. Thus, there is a very real possibility that the costs associated with engineering controls will jeopardize the financial health of particular employers or even of entire industries.

[24] Although they agree on this broad, general test, it appears that Commissioners Cleary and Cottine do not agree on how the test is to be applied. Commissioner Cleary specifies numerous factors that may be considered in such inquiry, and it is not clear whether Commissioner Cottine considers those factors relevant. See notes 12 and 13 of the lead opinion. Moreover, the wide range of factors Commissioner Cleary would consider provide a further demonstration that ‘feasible’ can mean whatever a person wants it to mean. As Justice Rehnquist stated, ‘feasible’ is a ‘legislative mirage . . . assuming any form desired by the beholder.’ IUD v. API, 100 S.Ct. at 2883 (concurring opinion).

[25] In this case, the Secretary argues that the Court’s interpretation of ‘feasible’ as it appears in § 6(b)(5) rulemaking should be applied to the judicial interpretation of the noise standard, promulgated under § 6(a). However, in another case, the Secretary has argued to the Commission that the ‘significant risk’ test for § 6(b)(5) standards established by the Supreme Court in IUD v. API should not be applied to the interpretation and application of standards because that decision of the Court applies only to rulemaking, and not adjudication. See Pratt & Whitney Aircraft, 10 BNA OSHC 2011, 1982 CCH OSHD ¶26,257 (No. 13591, 1982), appeal filed, No. 82–4180 (2d Cir. Nov. 16, 1982).

[26] See note 7 of the majority opinion.

[27] See Continental Can Co., 4 BNA OSHC at 1546–47 and n. 14, 1976–77 CCH OSHD at p. 25,255 and n. 14. Having recognized that the legislative history of the standard provided no guidance as to the role economic considerations were to play, the majority in Continental Can proceeded to hold that the standard required a balancing of costs and benefits. Although I believe such an interpretation is ‘reasonable,’ the Commission cannot create an interpretation of a standard that has no basis in the language and intent of the standard. As I have noted, it is the duty of the congressionally delegated authority, in this case the Secretary, to provide ascertainable criteria by which standards can be interpreted and applied. To hold otherwise would mean that the Commission, not the Secretary, is setting the standard, and would constitute an impermissible delegation of the Secretary’s rulemaking authority. Thus, although I believe that the Continental Can interpretation was reasonable, I also believe that the majority’s analysis in Continental Can supports the conclusion that the standard is unenforceable.

[28] The abatement of many life-threatening hazards involves costs far less than those at stake in implementing engineering controls for noise. For example, OSHA estimated the cost of engineering controls for cotton dust at $543 million. ATMI, 101 S.Ct. at 2498. OSHA believed that the cost of such controls for benzene would be $266 million. IUD v. API, 100 S.Ct. at 2857. The cost of engineering controls for lead, to be implemented by primary and secondary smelters, battery manufacturers, and the paints and coatings industry, OSHA projected to be between approximately $337 and 395 million. United Steelworkers of America, AFL–CIO–CLC v. Marshall, 647 F.2d 1189, 1278–1303 (D.C. Cir. 1980), cert. denied, 101 S.Ct. 3148 (1981). And OSHA estimated that the costs for compliance with the coke oven emissions standard would be between $240 and 1,280 million. American Iron & Steel Institute v. OSHA, 577 F.2d 825, 836 (3d Cir. 1978), cert. dismissed, 448 U.S. 917 (1980).

The costs associated with abating these life-threatening hazards have been subjected to intense scrutiny in administrative rulemaking and in judicial review of the rulemaking actions. In contrast, the potentially much greater costs associated with engineering controls for noise, see note 3 supra, were apparently not considered before section 1910.95(b)(1) was promulgated under the Walsh-Healey Act and the policy decisions that Congress intended should be made before such costs are imposed on industry have not been made or scrutinized in any forum.

[29] In 1972, pursuant to authority granted by 29 U.S.C. §§ 669(a) and 671(d), the National Institute for Occupational Safety and Health (‘NIOSH’) developed a criteria document on noise exposure recommending that the Secretary study the feasibility of reducing the permissible time weighted exposure level to 85 dBA. In 1973, pursuant to authority granted by 29 U.S.C. § 656(b), the Assistant Secretary of Labor for Occupational Safety and Health appointed an Advisory Committee on Noise to receive and evaluate the views of labor, management, government, and independent experts in noise problems and make recommendations to OSHA for a revised noise standard. In late 1973, the Advisory Committee transmitted its report to OSHA and, during the first nine or ten months of 1974, OSHA considered the information and recommendations contained in the NIOSH criteria document and the Advisory Committee’s recommendations, as well as other available information. 46 Fed. Reg. 4102–4103. Then, on October 24, 1974, OSHA proposed a revision to the noise standard and solicited comments and objections. 39 Fed. Reg. 37773–37778. Subsequently, the comment period was extended several times because of the complexity of the issues and over the next several years, two informal hearings were held. See 46 Fed. Reg. 4103–04 (summarization of notices and proceedings). These proceedings resulted in the hearing conservation amendment to the noise standard and OSHA’s solicitation of further information about revision of the noise standard’s current requirement for the use of ‘feasible’ engineering and administrative controls. See 46 Fed. Reg. 4105.

[30] In this case, the Secretary contends that Sun Ship violated section 1910.95(b)(1) by exposing a single employee to excessive noise and by failing to implement engineering controls for the equipment that employee was using. However, the interpretation established in this case will control the disposition of more than twenty other cases now before the Commission. Many of those cases will have implications for the types of noise controls required in entire industries. E.g., Cox Enterprises, Docket No. 12074 (newspaper industry); Pabst Brewing Co., Docket No. 13068 and 77–1895 (beverage packaging); Plum Creek Lumber Co., Docket No. 78–1753 (sawmill operations); Deering-Milliken, Inc., Docket Nos. 12598 and 13037 (textile manufacturing); Southwest Forest Industries, Docket No. 78–3976 (corrugated paperboard manufacturing); Sherwin Williams, Inc., Docket No. 14131 (can manufacturing). Therefore, although this case has relatively simplistic facts, its decision will have a broad impact on numerous industries, and it is necessary to consider that impact in deciding this case.

[31] In Donovan v. Castle & Cooke Foods, the Ninth Circuit concluded that the Supreme Court’s decision in ATMI did not preclude a weighing of costs and benefits in the enforcement of a § 6(a) standard. The Ninth Circuit therefore accepted the Commission’s interpretation of § 1910.95(b)(1) because that interpretation was not unreasonable, arbitrary, or inconsistent with the Act. Slip op. at 13. I agree with the Ninth Circuit that ATMI does not preclude a weighing of costs and benefits in interpreting a § 6(a) standard. However, as I have explained above, the enforcement of any standard must be consistent with the regulatory intent underlying the standard. The Commission is not free to fill a regulatory void by supplying its own interpretation of a standard lacking in regulatory intent, no matter how reasonable that interpretation may be.

[32] The hearing conservation standard requires employers to ensure that all employees exposed to noise levels in excess of those listed in Table G–16 wear personal hearing protectors. In addition, employers must make hearing protectors available to employees exposed to time weighted average noise levels greater than 85 dBA, and must ensure that employees exposed to such noise levels who have experienced a permanent significant threshold shift in their hearing ability wear such protectors. 29 C.F.R. § 1910.95(1).

Properly used, personal protective equipment is capable of as much as a 20 to 30 dB attenuation in existing noise levels, see 46 Fed. Reg. at 4111 (1981), and can reasonably be expected to produce a 10 to 15 dB attenuation, see 46 Fed. Reg. 4113–14. Of course, the effectiveness of personal protective equipment depends on its correct use and, therefore, personal protective equipment is generally regarded as inferior to engineering controls. See Continental Can Co., supra; Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1976–77 CCH OSHD ¶21,023 (No. 3635, 1976), remanded, 561 F.2d 82 (7th Cir. 1977); see generally 46 Fed. Reg. at 4078, 4113, 4114. However, in the hearing conservation amendment to the noise standard, OSHA prescribes a program for effective use of personal protective equipment. The employer is required to make available a variety of suitable protective devices, to insure their proper fit, and to train and supervise employees in the proper use and care of hearing protectors. Detailed instructions are also prescribed for evaluating the degree of noise attenuation which will be achieved by protective equipment. Presumably, the program can be successfully implemented. Moreover, engineering controls can also be used ineffectively and can become progressively less effective from wear and abuse. For example, removable barriers or enclosures can be circumvented, left out of place, or damaged by employees. See Ormet Corp., 81 OSAHRC 35/C3, 9 BNA OSHC 1828, 1981 CCH OSHD ¶25,322 (No. 76–4398, 1981) (employees deliberately damaged a locking clasp on a main electrical disconnect switch so that they could use it as an on-off switch); MRS Printing, Inc., 78 OSAHRC 84/B10, 6 BNA OSHC 2025, 1978 CCH OSHD ¶23, 102 (No. 76–3113, 1978)) (employee circumvented dual controls activating a guillotine cutter by tripping the left hand lever with his left knee, leaving his left hand free while the blade was activated by his right hand). Thus, engineering controls, too, involve human elements that can undermine the protection.

[33] During the trial herein, without objection, the Notification of Proposed Penalty was amended, to reflect Complainant’s true intention, to wit, to propose the $60 penalty for the alleged noise violation, Item No. 1, and no penalty for Item No. 2 (Tr. Vol. IV, p. 20).

[34]

[35] Arcairing is a process of burning away unwanted metal. It is the opposite of welding. The arcair tool is hand held. It is fitted with various diameter carbon rods, which are electrically arced producing intense heat which melts the unwanted metal to a molten state. An air stream at high velocity (80 to 100 p.s.i.) moves through the tool and blows the molten metal away at approximately 100 to 125 feet per second. The process is used to gouge out defective welds or to burn and blow away other types of unwanted metal from surfaces. The molten metal generates the iron oxide fumes at issue herein (Tr. Vol. III, pp. 90, 91; Vol. pp. 224 226).

[36] This Standard provides:

(d) Protection against particulate contaminants not immediately dangerous to life.

(1) When employees are exposed to unsafe concentrations of particulate contaminants, such as dusts and fumes, mists and fogs or combinations of solids and liquids, they shall be protected by either air line or filter respirators, except as otherwise provided in the regulations of this part.

[37] See ‘concurring’ opinion of Commissioner Moran, p. 23, Slip opinion.

[38] I find myself in agreement with the compelling logic of Commissioner Cleary’s well reasoned dissent in the Continental Can case, Slip opinion, pp. 24 37. Regrettably, I am not free to follow it however.

[39] This failure of evidence is quite understandable. I fail to understand how Complainant can produce such evidence absent a thorough and extensive cost analysis of all of Respondent’s relevant financial, as well as production records, coupled with a thorough time and motion study of the noise operation both before and after the ‘technically’ feasible engineering or administrative control. (Complainant might well have to resort to Section 8(b) of the Act, 29 U.S.C. 657(b) to accomplish this.) Even this type of evidence might well prove to be insufficient under Continental Can because the Chairman advises that the indicated ‘indirect costs,’ ‘. . . is not meant to be all-inclusive.’

[40] This determination is one example of what I conceive to be the accuracy and wisdom of Commissioner Cleary’s caveat in his dissenting opinion in the Continental Can case, quoted, supra.

[41] The term ‘feasible’ is not defined in the Act or the Air Contaminant Standard.

[42] All sampling done by the inspecting Industrial Hygienists were professionally and competently carried out.