“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 2038 B.F. GOODRICH COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 24, 1981DECISIONBefore: BARNAKO, ActingChairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:??????????? The United States Court of Appeals for the Sixth Circuitremanded this case to the Commission for a moredefinite statement whether the feasible controls ordered will bring the noiselevel to or below 90 decibels during an eight hour day as required by 29 C.F.R.? 1910.95 Table G?16 so that individual protective devices will not be required,and if not, the extent to which the feasible controls ordered will reduce thenoise level. \u00a0B.F. Goodrich Co. v. OSHRC,No. 74?1836 (6th Cir. April 24, 1975) (?Goodrich?). In response to the order ofthe court, the Commission remanded the case to Administrative Law Judge LouisJ. Rubin, who initially decided the case, to make the required findings. In hisdecision on remand Judge Rubin found that the use of machine enclosures wouldbring the noise level to below 90dBA for an eight hour day.??????????? Respondent, B.F. Goodrich Company, filed a petition forreview of the judge?s decision on remand raising the issues of whether thejudge?s decision is responsive to the court?s order and whether it is supportedby the evidence. Commissioner Cleary granted Respondent?s petition.??????????? While the judge?s decision in this case was pendingreview by the Commission and after the parties had filed briefs on review, theCommission issued its decision in ContinentalCan Co., 76 OSAHRC 109\/A2, 4 BNA OSHC 1541, 1976?77 CCH OSHD ? 21,009 (No.3973, 1976), Appeal withdrawn, No.76?3229 (9th Cir. April 26, 1977) (?ContinentalCan?). In Continental Can theCommission held:[section1910.95(b)(1)] should be interpreted to require those engineering andadministrative controls which are economically, as well as technicallyfeasible. Controls may be economically feasible even though they are expensiveand increase production costs. [Citations omitted.] But they will not berequired without regard to the costs which must be incurred and the benefitsthey will achieve. In determining whether controls are economically feasible,all the relevant cost and benefit factors must be weighed.?4 BNA OSHC at 1547,1976?77 CCH OSHD at p. 25,256. ContinentalCan remains the rule of decision to be applied in cases involving allegedviolations of the occupational noise standard at section 1910.95(b)(1). Samson Paper Bag Co., 80 OSAHRC 60\/A2, 8BNA OSHC 1515, 1980 CCH OSHD ?24,555 (No. 76?222, 1980) (?Samson?).??????????? In R.M.I. Co. v.Secretary of Labor, 594 F.2d 566 (6th Cir., 1979) (?R.M.I.?), the sixth Circuit Court of Appeals remanded a similarcase involving the noise standard to the Commission for the taking ofadditional evidence on the issue of economic feasibility and for adetermination of whether the costs of installing engineering controls areoutweighed by the benefits to be derived from such controls. The remand wasordered despite the fact that the issue of economic feasibility was raised by R.M.I. for the first time before thecourt on appeal and had not been raised before the administrative law judge orthe Commission. The court reasoned that R.M.I.could properly raise the issue before the court because Continental Can, which placed the burden of proving economicfeasibility on the Secretary, was decided by the Commission after the R.M.I. case had been decided by theadministrative law judge and after the parties had filed briefs with theCommission.??????????? The procedural posture of this case now before theCommission is similar to that of R.M.I.when it was before the Sixth Circuit. Indeed, Goodrich is before us pursuant toan order of remand issued by the same Court of Appeals which remanded the R.M.I. case for the application of anintervening change in Commission law. Accordingly, we must determine whetherthere is sufficient information in the record before us to perform thecost-benefit analysis test for economic feasibility set forth in Continental Can and reaffirmed inSamson. Prior to the issuance of the Sixth Circuit?s R.M.I. decision, the Commission requested the parties in this case,Goodrich, to submit supplemental briefs addressing the question of whether theevidence of record is sufficient to reach a conclusion under the Continental Can test.??????????? Our review of the record as well as the supplementalbriefs filed by the parties leads us to conclude that the record isinsufficient to perform the cost-benefit analysis test for economic feasibilitybecause the hearing in this case, as in R.M.I.,was conducted prior to the Commission?s decision in Continental Can. Thus, at the time of the hearing, neither partywas aware of the cost-benefit economic feasibility test. Moreover, such aninquiry is mandated by the rationale and decision of the Sixth Circuit in the R.M.I. case.[1]??????????? Accordingly, we remand this matter to the ChiefAdministrative Law Judge for assignment to an administrative law judge[2] for the specific purposeof reopening the record to take evidence and to make findings of fact consistentwith Continental Can.[3]?SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.,EXECUTIVE SECRETARYDATED: MAR 24 1981[1]ActingChairman Barnako considers the evidence of record sufficient to perform thecost-benefit analysis for economic feasibility pursuant to Continental Can. He notes, moreover, that in response to theCommission?s Supplemental Briefing Order neither party requested a reopening ofthe record. However, the Secretary?s Supplemental Brief concentrated on thequestion of whether the Continental Cantest is appropriate as opposed to the sufficiency of the evidence of recordunder that test. Because the Commission?s Supplemental Briefing Order wasissued before its decision in Samson,which reaffirmed the Continental Cantest, the parties may have prepared their briefs assuming that the Commissionwas considering the adoption of a test for economic feasibility other than thatset out in Continental Can.Accordingly, because the parties may have been under a mistaken impression asto the views of the Commission on economic feasibility, Acting Chairman Barnakoagrees to the remand of this case and the reopening of this record.[2]AdministrativeLaw Judge Louis J. Rubin, who initially decided this case, has retired.[3]The judge?sfindings of fact must be predicated on costs and benefits as they existed atthe time of the alleged violation.”