“Docket No. 10609 ANHEUSER-BUSCH, INC.? OSHRC Docket No. 10609 Occupational Safety and Health Review Commission January 13, 1977 ?[*1]? Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.? COUNSEL: Baruch A. Fellner, Office of the Solicitor, USDOL Marshall H. Harris, Regional Solicitor, USDOL Knut Heise, Anheuser-Busch, Inc., Legal Department, for the employer OPINIONBY: CLEARY OPINION: DECISION CLEARY, Commissioner: A decision of Administrative Law Judge William E. Brennan is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651 et seq. [hereinafter \”the Act\”].? In his decision Judge Brennan affirmed the Secretary’s citation alleging that respondent violation section 5(a)(2) of the Act by failing to comply with the requirements of the occupational safety and health standard at 29 C.F.R. ?? 1910.95. n1 The violation was found to be nonserious and a $35 penalty was assessed. – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – n1 The standard in pertinent part provides: When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized.? If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table. Table G-16 — Permissible Noise Exposures Duration per day, hours Sound level dBA slow response 8 \u00a090 6 \u00a092 4 \u00a095 3 \u00a097 2 100 \u00a0\u00a0\u00a0\u00a01 1\/2 102 1 105 \u00a0\u00a01\/2 110 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a01\/4 or less 115 ?[*2]? – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – Respondent’s petition for discretionary review of this decision was granted.? In its petition and brief respondent challenged the Judge’s decision in respect to only two issues.? First, it is urged that the Judge erred in granting the Secretary’s motion for a continuance so that additional expert testimony on the feasibility of engineering controls could be procured.? Second, respondent asserts that the Judge erred in basing his finding that engineering controls are feasible on the testimony of the Secretary’s expert witness, an acoustical engineer. In respondent’s view, the testimony of its mechanical and design engineers, to the effect that engineering controls are not feasible, is the only probative evidence on this issue. Respondent’s objection to the granting of the continuance is bottomed on the contention that the Secretary was given an unfair advantage in that the testimony of respondent’s expert was presented prior to the testimony of the Secretary’s expert. n2 As a result, respondent argues, the Secretary’s expert was placed in a \”superior position\” in preparing and presenting his testimony.? [*3]? – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – n2 The motion for a continuance was first made a week prior to the hearing.? The Judge denied it at that time in order to enable the hearing to start on schedule.? At the hearing, however, the Secretary renewed his request for additional time to procure expert testimony. After the Secretary had presented his then available witnesses, the Judge granted the Secretary’s request.? Respondent then proceeded to present its witnesses.? The Judge made it clear, however, that when the hearing reconvened respondent would also have an opportunity to present additional evidence. – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – Our review of the record convinces us, however, that respondent was not forced to have its expert testify at that time.? To the contrary, it appears that respondent’s evidence was received as an accommodation to respondent.? Furthermore, respondent’s principal expert also testified after the Secretary’s expert gave his testimony, as did respondent’s other witnesses.? It is therefore clear from the entire record that respondent suffered no prejudice [*4]? as a result of the continuance. Under these circumstances it cannot be said that the Judge abused his discretion.? Cf. Williams Enterprises, Inc., BNA 4 OSHC 1663, CCH 1976-77 OSHD para. 21,071 (No. 4533, 1976). Concerning the feasibility issue, respondent contends that the problem it faced in attempting to reduce noise levels involved designing methods of noise reduction, rather than identifying the sources of the noise. It therefore argues that the testimony of its mechanical engineers outweighed that of the Secretary’s expert. We note, however, that respondent’s contention that engineering controls are not feasible is based on the assumption that such controls are never \”feasible\” unless they can reduce the noise levels below those specified in Table G-16.? We have rejected this interpretation of the standard.? Continental Can Co., Inc., BNA 4 OSHC 1541, CCH 1976-77 OSHD para. 21,009 (No. 3973, 1976); Turner Company, BNA 4 OSHC 1554, CCH 1976-77 OSHD para. 21,023 (No. 3635, 1976).? The Secretary’s expert testified that several simple and economical means existed to achieve a significant reduction in the noise levels. n3 This testimony, if credited, is sufficient [*5]? to show a violation of the standard.? Continental Can Co., Inc., supra; Turner Company, supra. The Judge accorded greater weight to the testimony of the Secretary’s expert and we have no reason for differing with his evaluation of the expert testimony. In so concluding we are impressed by the fact that the testimony of respondent’s witnesses was based on an interpretation of the standard that we have rejected. – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – n3 For example, one of the principal sources of noise at the can seamer was a hydraulic pump located behind the seamer. The Secretary’s expert testified that a significant noise reduction could be achieved at that location by moving the pump. There was no evidence that moving the pump would have been difficult or infeasible. – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – Accordingly, it is ORDERED that the Judge’s decision finding respondent in violation of the Act for failure to comply with the standard at 29 CFR ?? 1910.95 and assessing a penalty of $35 is hereby affirmed.? DISSENTBY: MORAN DISSENT: MORAN, Commissioner, Dissenting: The citation should be [*6]? vacated because respondent did all that was required of it under the Occupational Safety and Health Act of 1970 to protect its employees from noise hazards. In this connection, Judge Brennan found in his decision which is attached hereto as Appendix A that: \”The evidence further reveals that since 1972 Respondent has had a mandatory personal protective program operating at its Williamsburg brewery at the locations at issue in this case.? Various types of ear protectors, plugs, muffs, etc. have been issued to operators at these locations and their use has been enforced . . . .? This aspect of the case as well as the infeasibility of administrative controls are not seriously challenged by Complainant.\” n4 Furthermore, the parties stipulated that the personal protective devices provided byf respondent did \”alleviate noise levels . . . to within permissible levels.\” – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – n4 He also found that respondent \”clearly established\” that administrative controls were not feasible at respondent’s worksite.? Thus, complainant’s case is grounded solely on respondent’s alleged failure to provide feasible engineering controls. ?[*7]? – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – The only purpose of the Act is to protect employees from workplace hazards. 29 U.S.C. ?? 651(b).? The gravamen of the charge against respondent is a violation of the Act – specifically 29 U.S.C. ?? 654(a)(2) – not a violation of 29 C.F.R. ?? 1910.95. n5 It is therefore obvious that such a charge cannot be affirmed unless there is proof that respondent’s employees were subjected to an occupational hazard which respondent had not reasonably attempted to abate.? See Secretary v. John T. Clark & Son of Boston, Inc., OSAHRC Docket No. 10554, December 22, 1976 (dissenting opinion).? That proof is lacking in the instant case. – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – n5 It should be noted, however, that the regulation at issue here applies only \”[w]hen employees are subjected to sound[s] exceeding those listed in Table G-16.\” 29 C.F.R. ?? 1910.95(b)(1).? Of course, as indicated by the stipulation, the personal protective equipment furnished by respondent provided adequate protection to preclude its employees from being \”subjected to\” such noise levels. ?[*8]? – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – Where, as here, personal protective equipment adequately protects employees from impermissible noise levels, it is unjust and contrary to the purpose of the Act to require an employer to expend substantial funds to implement engineering controls.? See Secretary v. Continental Can Company, OSAHRC Docket No. 3973, August 24, 1976; Secretary v. Turner Company, OSAHRC Docket No. 3635, August 24, 1976 (dissenting opinion).? This is particularly true in bottle and can packaging facilities whose sanitary conditions are rigidly controlled by the Food and Drug Administration.? The sanitary requirements of that agency have a substantial bearing on the feasibility of using various engineering controls.? The evidence in this case shows that some of the engineering controls recommended by complainant’s expert would run afoul of the Food and Drug Administration’s sanitary requirements.? Respondent should not be responsible for resolving such conflicts between two agencies, especially where, as here, adequate employee protection is clearly provided. “