SECRETARY OF LABOR, Complainant, v. WHEELING-PITTSBURGH STEEL CORPORATION, Respondent. OSHRC Docket No. 15647 _DECISION_ Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners. BY THE COMMISSION: The Secretary of Labor alleges that Wheeling-Pittsburgh Steel Corporation violated the occupational noise standard at 29 C.F.R. § 1910.95(b)(1) by not using "feasible" engineering controls against excessive noise. Administrative Law Judge Benjamin G. Usher held that the Secretary did not prove that the engineering control he proposed met the cost-benefit test of feasibility set forth in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD ¶ 21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. April 26, 1977). The Secretary's petition for review was granted under 29 U.S.C. § 661(i). In Sun Ship, Inc., 82 OSAHRC 69/A2, 11 BNA OSHC 1028, 1983 CCH OSHD ¶ 26,353 (No. 16118, 1982), we overruled Continental Can and held, in accordance with the decision of the United States Supreme Court in American Textile Manufacturers Institute, Inc. v. Donovan, 101 S.Ct. 2478 (1981), that "feasible" as used in the noise standard means achievable. In view of this intervening change in law, we vacate the judge's decision and remand for further proceedings, including evidentiary submissions, so that the interrelated issues of technological and economic feasibility can be reconsidered in light of Sun Ship However, we shall also examine an important, threshold issue raised by Wheeling-Pittsburgh: Is exposure to a sound level above 115 dBA excessive regardless of duration? The occupational noise standard states in part: § 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.... (b)(1) When employees are subjected to sound [levels] 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. (2) If the variations in noise level involve maxima at intervals of 1 second or less, it is to be considered continuous. * * * 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 1/2 102 1 105 1/2 110 1/4 or less 115 The only evidence of excessive noise exposure relied on by the Secretary establishes that a Wheeling-Pittsburgh employee was exposed to noise at 124 dBA for 10 seconds, 127 dBA for 15 seconds, 124 dBA for 5 seconds, 126 dBA for 7 seconds, 124 dBA for 5 seconds, and 122 dBA for 5 seconds. The Secretary repeatedly declined before the judge to argue that these sound levels lasted longer than exposure durations extrapolated from the duration-sound level benchmarks in Table G-16. Instead, he maintains that the table sets a ceiling of 115 dBA and exposure to sound levels above 115 is excessive regardless of duration. Wheeling-Pittsburgh argues that 115 dBA is not a ceiling and that time-weighting of employee exposure with extrapolated durations is necessary. It maintains that the standard does not clearly prohibit exposure to sound levels above 115 dBA, and points to the second paragraph of the footnote to Table G-16, which permits exposure as high as 140 dB to impulsive or impact noises, as evidence that brief exposure to levels above 115 dBA is permissible. It notes that Table G-16 permits sound levels to vary with duration according to a known mathematical relationship.[[1/]] Wheeling-Pittsburgh then reasons that inasmuch as this relationship must be used to calculate sound levels and durations between those supplied by the table (interpolation), [[2/]] the relationship should be used to calculate durations for sound levels above 115 dBA (extrapolation). Wheeling-Pittsburgh also argues that it was not given fair notice that 115 dBA is a ceiling value. We agree with the Secretary that 115 dBA is the upper limit of permissible sound levels. The words "or less" in Table G- 16 can signify nothing else.[[3/]] Table G-16 prescribes the highest permissible sound level for a given exposure period. For exposure periods of more than one-quarter hour, the maximum permissible sound levels supplied by the table range from 90 dBA for eight hours to 110 dBA for one-half hour. For an exposure period of one-quarter hour, the maximum permissible level is 115 dBA. And for a period of less than one-quarter hour, the words "or less" reveal that the maximum permissible level is also 115 dBA.[[4/]] Wheeling-Pittsburgh's contrary interpretation would render superfluous the words "or less." We must give effect to these words unless it is impossible to do so. See Anaconda Aluminum Co., 81 OSAHRC 27A/A2, 9 BNA OSHC 1460, 1480, 1981 CCH OSHC ¶ 25,300, p. 31,352 (No. 13102, 1981). Wheeling-Pittsburgh argues that the second paragraph of the footnote to the table, which states that "[e]xposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level," would be unnecessary if Table G-16 already provided a ceiling. We disagree. The footnote refers solely to impulsive or impact noise. The noise here, however, is not of that character but is continuous. Thus, whether Table G-16 regulates only continuous noise as measured by a sound level meter set at A scale and slow response, or whether it regulates continuous, impulsive and impact noise as so measured, the table does impose a ceiling on at least the continuous noise in this case. We also do not agree with Wheeling-Pittsburgh that because one may interpolate between values supplied by Table G-16, one may with equal logic extrapolate above them. The soundness of extrapolation as a mathematical technique has no bearing on whether the standard permits extrapolation. The answer to that legal question of regulatory interpretation depends on whether the drafter intended to impose an absolute limit on the noise to which unprotected human ears may safely be exposed. To extrapolate is to assume that the drafter imposed no such limit and is therefore to assume the answer to the legal question before us. Yet, there is evidence in addition to the words of the standard that the drafter did intend to impose an exposure ceiling. Shortly after the Secretary adopted section 1910.95 under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-679 ("the Act"), he published Bulletin 334, "Guidelines to the Department of Labor's Occupational Noise Standards" (rev. June 8, 1971), reprinted in 1 BNA Noise Regulation Reporter, Reference File 41:3001. This publication, a nearly contemporaneous interpretation of the standard by its drafter, [[5/]] states that "[e]mployees must not be exposed to steady sound levels above 115 dBA, regardless of the duration." Id. at 2. It also explains that "[i]n contrast with the 115 dBA upper limit for steady noise, the higher intensity for impact noise is permissible because the noise impulse resulting from impacts....is past before the ear has time to react fully." Id. at 4. [[6/]] It bears emphasis that under Wheeling-Pittsburgh's interpretation, employees would for varying periods be left entirely unprotected from noise levels higher than 115 dBA; they would not even have to wear ear plugs or ear muffs. If, as Wheeling-Pittsburgh advocates, permissible levels were extrapolated, employees could be lawfully exposed without any ear protection whatever to 120 dBA for seven and one-half minutes, and to 140 dBA for about 28 seconds. [[7/]] Yet, 120 dB is the threshold of pain. [[8/]] The words of the standard and its regulatory history convince us that the Secretary did not intend this result. Accordingly, the judge's decision is vacated. The case is remanded for further proceedings consistent with this opinion. [[9/]] SO ORDERED. FOR THE COMMISSION Ray H. Darling, Jr. Executive Secretary DATED: MAR 31 1983 ------------------------------------------------------------------------ The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050) or TTY (202-606-5386). FOOTNOTES: [[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 dB peak sound pressure level. [[1/]] See note 7 infra. [[2/]] See Weyerhaeuser Co., 77 OSAHRC 9/A2, 4 BNA OSHC 1972, 1975 n.11, 1976-77 CCH OSHD para. 21,465, p. 25,749 n.11 (Nos. 1231 & 1758, 1977), aff'd in pertinent part, 614 F.2d 199 (9th Cir. 1980); Sun Shipbuilding & Dry Dock Co., 11 OSAHRC 171, 2 BNA OSHC 1181, 1183 n.4, 1185 n.5, 1974-75 CCH OSHD para. 18,537, p. 22,519 n.4, p. 22,520 n.5 (No. 268, 1974) (lead and concurring opinions). [[3/]] For this reason alone, we are unconvinced by Wheeling-Pittsburgh's argument that it lacked fair notice that 115 dBA is a ceiling. [[4/]] The Commission has always interpreted Table G-16 as imposing a 115 dBA ceiling. "[E]xposure for any period of time to sound levels of 115 dBA or more constitutes a violation." Louisiana-Pacific Corp., 77 OSAHRC 187/A2, 5 BNA OSHC 1994, 2000, 1977-78 CCH OSHD ¶ 22,261, p. 26,803 (No. 10639, 1977); see Castle & Cook Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1436 n.5, 1977-78 CCH OSHD ¶ 21,854, p. 26,327 n.5 (No. 10925, 1977), aff'd without discussion of point, 692 F.2d 641 (9th Cir. 1982); Continental Can, 4 BNA OSHC at 1547, 1976-77 CCH OSHD at p. 25,257. [[5/]] See Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1557-58, 1976-77 CCH OSHD ¶ 21,023, p. 25,275 (No. 3635, 1976), rev'd on another ground, 561 F.2d 82 (7th Cir. 1977). As in Turner, the Bulletin was referenced in this litigation. Cf. Davis Metal Stamping, Inc., 82 OSAHRC 37/A2, 10 BNA OSHC 1741, 1746, 1982 CCH OSHD ¶ 26,134, p. 32,899 (No. 78- 5775, 1982) (contemporaneous interpretation of regulation in inspection manual). [[6/]] Some contemporaneous industrial hygiene materials also indicates that 115 dBA was then commonly thought of as an upper limit for at least continuous noise. See American Conference of Governmental Industrial Hygienists, "Threshold Limit Values of Physical Agents" (1969) (table similar to Table G-16; 115 dBA marked as "ceiling value"), reprinted in National Safety Council, Fundamentals of Industrial Hygiene 739-741 (1971); Inter-Society Committee, "Guidelines for Noise Exposure Control," 4 Sound & Vibration 21, 23 (Nov. 1970) (permissible noise levels of "up to 115 dBA"); and Inter-Society Committee, "Guidelines for Noise Exposure Control," 28 Ind. Hyg. Assn. J. 418, 421 (Sept.-Oct. 1967) ("maximum of 115 dB"). [[7/]] The mathematical formula that we used to derive these numbers, and which is implicit in Table G-16, is T=__________ 8_____________, 2 (L-90)/5 where T is the duration of a sound level in hours, and L is the sound level in dBA. See § 1910.95, Appendix A. An easier but equivalent method of calculation is to halve the duration for each 5 dBA increase in sound level. [[8/]] Fundamentals of Industrial Hygiene, at 168, supra note 6. [[9/]] Chairman Rowland would not remand this case for further proceedings. Consistent with his dissenting opinion in Sun Ship, he concludes that the requirement in section 1910.95(b)(1) that feasible administrative and engineering controls be utilized is invalid. Inasmuch as the Secretary seeks only the installation of engineering controls, Chairman Rowland would vacate the citation and does not reach the question of whether 115 dBA is a ceiling.