“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 12817 BETHLEHEM STEEL CORPORATION, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 19, 1981DECISIONBefore CLEARY, Chairman; and COTTINE, Commissioner.*??????????? Adecision of Administrative Law Judge David H. Harris is before the Commissionfor review under section 12(j), 29 U.S.C. ? 661(i), of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). In his decision,Judge Harris affirmed 11 subitems and vacated the remaining 27 subitems of a citationalleging Respondent Bethlehem Steel Corporation?s failure to comply with thenoise standard, 29 C.F.R. ? 1910.95,[1] at its Lebanon,Pennsylvania plant. The judge ordered a two year abatement period for theaffirmed subitems and assessed no penalty. Former Commissioner Moran directedreview ?for error? and Chairman Cleary directed review of the following issuesraised in a petition for discretionary review filed by the Secretary of Labor(?the Secretary?):??????????? (1)Whether the Administrative Law Judge erred in vacating the alleged violation of29 C.F.R. ? 1910.95(b)(1) for [four] items . .. of the citation???????????? ?(2) Whether the Administrative Law Judge erredin finding that the standard at 29 C.F.R. ? 1910.95 does not include thedosimeter as a recognized means of determining violations or compliance???????????? ChairmanCleary also granted Respondent?s ?cross-petition? raising eight issues, ?mostof which concern evidentiary rulings by the Judge and also his finding thatrespondent violated 29 C.F.R. ? 1910.95(b)(1).?[2] For the reasons thatfollow, we set aside the judge?s decision and remand this case for furtherproceedings. Our holding that the judge erred in failing to permit Respondentto examine a memorandum prepared by the compliance officer and our conclusionthat the parties must be afforded an opportunity to introduce additionalevidence preclude us from considering the merits of the alleged violation.I??????????? OnJanuary 15, 1975, the Occupational Safety and Health Administration (?OSHA?)began a general inspection of Respondent?s Lebanon, Pennsylvania plant whereRespondent manufactures steel, metal products and machinery. As part of thisinspection, OSHA compliance officer and industrial hygienist Leonard Rennerconducted a noise survey of the Lebanon facility on February 10, 18, 21, 25,26, 27, and March 4, 1975. Renner relied on two types of sound measuringdevices: (1) a sound level meter that instantaneously measures noise levels indecibels (dBA) on the A scale at slow response and (2) five audio dosimeters.Spot sound level readings at 38 subsequently cited machine locations indicatednoise levels in excess of 90 dBA at each location at various times. Actual orprojected dosimeter readings or both, made at 37 of the 38 locations, alsoshowed exposure to noise in excess of the Table G?16 limits.[3] As a result of theinspection the Secretary cited Respondent for an other than serious violationof the Act, alleging specifically that Respondent failed to comply with section1910.95 because employees at 38 designated machine locations were exposed tonoise levels in excess of the noise standard?s Table G?16 limits and theirexposure was not limited as required by the standard. The Secretary proposed nopenalty for the alleged violation. Respondent timely contested the citation anda hearing was held before Judge Harris.II??????????? Inhis decision on the merits, Judge Harris ultimately concluded that theSecretary established noncompliance with the noise standard at 11 of the 38cited locations. The judge preliminarily noted the Secretary?s reliance ondosimeter readings as well as sound level meter readings to establish thealleged violation. He concluded that section 1910.95 does not permit use ofaudio dosimeters to determine exposure to excessive noise levels. Although hedid not comment on the scientific accuracy and reliability of a dosimeter?scorrelation of sound levels to time periods, the judge stated his view that thestandard provides only two methods for gauging ?when the sound levels exceedthose shown in Table G?16?: (1) measurement of sound levels ?on the A scale ofa standard sound level meter at slow response,? or (2) use of figure G?9 tomeasure the equivalent A-weighted sound levels ?when noise levels aredetermined by octave band analysis.???????????? JudgeHarris then analyzed the Secretary?s case, assessing the proof submitted on thenoise levels and duration of employee exposure for each subitem in thecitation, but excluding from his consideration the evidence concerning actualand projected dosimeter readings. He concluded that the Secretary failed ?toestablish a need for protection? (employee exposure to excessive noise) at 11locations. In arriving at this result, the judge cited Sun Shipbuilding and Drydock Co., 74 OSAHRC 61\/A2, 2 BNA OSHC 1181,1974?75 CCH OSHD ? 18, 537 (No. 268, 1974), noting that the Secretary presentedno evidence concerning the nature and extent of the noise levels before,between or following the sound level meter readings and that the Secretaryfailed to demonstrate the constancy of noise levels between readings at those11 locations. Judge Harris found concomitantly that the Secretary hadestablished ?a need for protection? at the remaining 27 locations.??????????? Thejudge then considered the feasibility of noise controls suggested by theSecretary. The judge noted that the Secretary?s noise expert, Paul Ostergaard,had testified that controls were available to reduce noise levels at 19 of the38 cited locations.[4]However, in view of his finding that the Secretary had not established exposureto excessive noise at seven of the 19 locations where noise reduction wasassertedly possible, the judge considered the availability of noise controls atonly the remaining 12 locations. In evaluating the sufficiency of proof forthose 12 subitems, Judge Harris concluded that, while the Secretary has theburden of establishing that engineering controls are available for utilization,he is not additionally required to prove that such controls will ?reduce soundlevels within the levels of Table G?16.?[5] Defining a feasibleengineering control as one that is ?practicable and capable of being carriedout,? the judge found that the controls recommended by the Secretary?s expertfor 11 of the 12 locations were feasible and ordered their implementation.Thus, the judge affirmed a violation based on noncompliance with the noisestandard at those 11 locations. The parties did not raise as an issue, andJudge Harris did not consider, the economic feasibility of the proposedcontrols.??????????? Inhis decision, Judge Harris also disposed of evidentiary and procedural issuesraised by Respondent. These rulings are described below.III??????????? Weconclude that Judge Harris correctly decided several procedural and evidentiaryissues raised by Respondent before the judge and re-argued before us on review.A. Motion to Compel Discovery Inspection??????????? In aletter to Respondent, dated April 21, 1975, the Secretary asked for permissionto reinspect the Lebanon facility to determine the availability of feasibleengineering and administrative controls for the 38 cited locations. Respondentdenied the request. The Secretary then filed a motion under Federal Rule ofCivil Procedure 37(a) for an order to compel inspection of Respondent?sworkplace.[6] Judge Harris granted theSecretary?s motion. The Commission later denied Respondent?s request forinterlocutory appeal of this ruling.??????????? Pursuantto the order compelling inspection, the Secretary?s noise expert, PaulOstergaard, conducted a survey of the 38 designated locations. Ostergaard latertestified that feasible engineering controls were available to reduce soundlevels at 19 of the 38 cited locations to within or close to the permissiblelevels of Table G?16.??????????? Atthe close of the hearing, Respondent moved to dismiss on the ground that theSecretary failed to sustain his burden of establishing the availability offeasible engineering or administrative controls to reduce the noise levels atthe 38 cited locations to within Table G?16 limits. In connection with thismotion, Respondent asked the judge to reassess his granting of the Secretary?smotion to compel inspection. If the judge favorably reconsidered his priororder, Respondent asked for dismissal of the citation because Ostergaard wasthe only witness of the Secretary to testify about feasible controls. JudgeHarris took the motion under advisement. In his decision, the judge deniedRespondent?s motion to reconsider the discovery order.??????????? Onreview, Respondent argues that Judge Harris should have denied the Secretary?smotion to compel discovery because the Secretary failed to conduct a properinitial inspection sufficient to identify feasible engineering oradministrative controls that would be adequate to meet the Table G?16 limits.Further, the Respondent contends that the second inspection, conducted ?underthe guise of discovery?, was burdensome and oppressive. Thus, it urges reversalof the judge?s denial of its motion to reconsider and further urges thesuppression of Ostergaard?s testimony and his report.??????????? Inits brief on review, Respondent relies heavily on a judge?s decision denying amotion to compel discovery inspection in PabstBrewing Co., 1975?76 CCH OSHD ? 19,956 (No. 13068, 1975), arguing thatPabst ?is on all fours? with this case and is therefore dispositive. Inreviewing that decision in Pabst BrewingCo., 77 OSAHRC 12\/A2, 4 BNA OSHC 2003, 1976?77 CCH OSHD ?21, 472 (No.13068, 1977), however, the Commission found that the judge erred in denying amotion to compel a discovery inspection for the purpose of assessing theavailability of feasible noise controls under section 1910.95(b)(1). Citing ReynoldsMetal Co., 78 OSAHRC 51\/F1, 3 BNA OSHC 1749, 1975?76 CCH OSHD ? 20,214 (No.4385, 1975), the Commission noted in Pabstthat discovery inspections are ordinarily permissible even if the informationsought could have been obtained by the Secretary during the initial inspection.Moreover, the Secretary?s request for discovery may not be interpreted as anadmission that a citation was improperly issued, Thomas A. Galante & Sons, Inc., 78 OSAHRC ??, 6 BNA OSHC 1945,1978 CCH OSHD ? 22,984 (No. 77?2512, 1978), because a citation may issue onless evidence than is necessary to prove a contested violation, Bristol-Myers Co., 78 OSAHRC 106\/D13, 7BNA OSHC 1039, 1979 CCH OSHD ? 23,223 (No. 77?3854, 1978). See also Ralston Purina Co., 79 OSAHRC 81\/F6, 7BNA OSHC 1730, 1979 CCH OSHD ? 23,897 (No. 78?145, 1979).??????????? Consequently,we conclude that Respondent?s arguments concerning the judge?s order grantingthe Secretary?s motion to compel inspection are without merit, and we affirmthe judge?s ruling.B. Subpoenas Duces Tecum and Respondent?s NoiseSurveys??????????? OnJuly 25, 1975, the Secretary served subpoenas duces tecum both on arepresentative of Respondent, Donald S. Aurand, and on Respondent BethlehemSteel Corporation. The subpoenas required Aurand and Bethlehem Steel to appearat the hearing, to testify, and to bring with them the following documents:??????????? 1.All documentation, results and conclusions of any noise survey taken in Januaryand February, 1975, at the Lebanon Plant by Mr. Thomas Civic or any otheremployee of the Respondent; and??????????? 2.All documentation, results, and conclusions of any noise survey taken at theLebanon Plant since August 1, 1974, by Mr. Edwin Toothman or any other employeeof the Respondent which deals with the existence or non-existence ofengineering and\/or administrative noise controls at the locations listed in theCitation.??????????? Beforethe hearing, Respondent filed a motion to quash the subpoenas duces tecum.Judge Harris quashed Item No. 1 of the subpoena issued to Respondent as beingimproperly vague and nonspecific, and modified Item No. 2, requiring onlyproduction of reports and documentation to be used as the basis of testimony byRespondent?s expert witness, senior noise control engineer Edwin H. Toothman.At the hearing, the judge took the same actions on the subpoena issued toAurand.??????????? Earlyin the hearing, the Secretary?s attorney asked Judge Harris to reconsider hisorder quashing portions of the two subpoenas duces tecum as being improperlyvague and unspecific. The judge refused to disturb his decision. However, heallowed the Secretary?s attorney to examine a noise survey prepared byRespondent?s employees, a document later marked as Exhibit C?6, overRespondent?s objection that the material was privileged under the work productrule.??????????? As aresult of the subpoenas, the Secretary eventually obtained Exhibit C?6(?Feasible Noise Reduction Recommendations at 38 Cited Machines and Locations?,written by employees of Respondent, April 7 and 8, 1975), and another noisereport by an employee of Respondent, Exhibit C?13 (noise survey by J.F. Savell,a noise control engineer with Respondent, December 9, 1974). The Secretary?scounsel urged admission of Exhibit C?6 as an admission against interest byRespondent and proposed to use the earlier study, Exhibit C?13, to show thatRespondent was aware of feasible controls yet failed to implement them by thetime of the citation. Judge Harris initially rejected these exhibits, rulingthat the Secretary had failed to lay a proper foundation for their admission.At the close of the hearing, however, Judge Harris admitted Exhibits C?6 andC?13 for a ?clear record? despite Respondent?s objections. The judge consideredthe exhibits to be important prehearing statements attributable to Respondenton recommendations it received from employees about the plant?s noise emissionsand noted that they were discussed at length on direct and cross-examination.Respondent contended that the exhibits were ?just recommendations? and exceptedto their admission. In his decision, Judge Harris denied Respondent?s motion toreconsider his ruling on the subpoenas duces tecum.??????????? Respondentargues on review that its motion to quash the subpoenas duces tecum should bereconsidered by the Commission and granted in total, that its noise surveys(Exhibits C?6 and C?13) should be struck, and that all testimony elicited as aresult of the subpoenas should be struck from the record.??????????? Respondentcontends that the Secretary failed to avail himself of Federal Rule of CivilProcedure 26(b)(4)(a)(i) regarding the expert testimony of Toothman. That ruleprovides an avenue for discovery of expert testimony as follows:A party may through interrogatoriesrequire any other party to identify each person whom the other party expects tocall as an expert witness at trial, to state the subject matter on which theexpert is expected to testify, and to state the substance of the facts andopinions to which the expert is expected to testify and a summary of thegrounds for each opinion.?Respondent also maintains that its response to JudgeHarris?s pre-hearing order requiring the exchange of certain informationbetween the parties satisfied the basic provisions of Rule 26(b)(4)(A)(i).[7] Thus modifications of thetwo subpoenas by the judge, to the extent that Respondent was required toproduce reports and other evidence relevant to anticipated testimony, wasunnecessary and beyond the requirements of Rule 26(b), according to Respondent.??????????? Respondentalso contends that Exhibits C?6 and C?13 should not have been admitted intoevidence because they were produced in response to these unwarranted subpoenas.According to Respondent, Judge Harris further erred in admitting the exhibitsfor three additional reasons. First, Exhibit C?6 was prepared by James Savell,a subordinate of Toothman, after the citation was issued and as part of theRespondent?s trial preparation. According to Respondent, the exhibit thereforeis privileged as work product. Second, Savell prepared the information in bothexhibits but was not called by the Secretary to authenticate the reports.Finally, Exhibits C?6 and C?13 were originally rejected by the judge because theSecretary failed to lay a proper foundation for their admission. Respondentthus concludes that there was no need or justification for the admission intoevidence of its noise surveys.??????????? Weconclude that Judge Harris properly exercised his discretion in upholding amodified version of the Secretary?s subpoenas duces tecum. Under Rule 55 of theCommission?s Rules of Procedure, 29 C.F.R. ? 2200.55, Judges are authorized torevoke or modify subpoenas.[8] The judge here narrowedthe scope of the subpoenas and determined that the information relating to thetestimony of Toothman, Respondent?s noise expert, was properly subject toproduction at hearing. He quashed all other aspects of the subpoenas asimproperly vague and nonspecific.??????????? Inparticular, we conclude that the judge?s decision to require the production ofdocuments relating to Toothman?s testimony was proper. Under Federal Rule ofEvidence 705,[9]the Secretary was entitled on cross-examination to disclosure of thoseunderlying facts on which Respondent?s noise expert based his testimony. Thejudge?s ruling merely ensured that the Secretary would have access at thehearing to the documents he was entitled to under Rule 705. Thus Judge Harrisproperly modified the subpoenas to require production at hearing of informationrelating to Toothman?s expert testimony.??????????? Respondent?sargument that the Secretary should have proceeded under the pretrial discoveryprovision regarding expert testimony, Fed. R. Civ. P. 26(b)(4)(A)(i), iswithout merit. The subpoenas in question directed Respondent Bethlehem SteelCorporation, and Donald S. Aurand, a representative of Respondent, to testifyand to bring the requested documents to the hearing. The Secretary was notusing the subpoenas as a tool of pretrial discovery. Moreover, there is nothingin the rule that either expressly or impliedly restricts the Secretary?sauthority to seek the issuance of a subpoena duces tecum. Thus Respondent?sreliance on Rule 26(b) is misplaced.??????????? Wedisagree with Respondent?s argument that its noise surveys, Exhibits C?6 andC?13, were inadmissible as privileged attorney work product. Respondent?s noiseexpert, Toothman, supervised preparation of these documents and referred tothem during the hearing. Facts and opinions held by an expert that are reliedon in the course of litigation are not privileged attorney work product. See, e.g., United States v. Meyer, 398F.2d 66, 73?75 (9th Cir. 1968). Thus, the judge correctly denied Respondent?smotion to exclude the exhibits as privileged work product. We further rejectRespondent?s assertion that the judge erred in admitting its noise surveysbecause James Savell, the employee who prepared the reports, was not called toauthenticate them. The reports were prepared at the direction of Toothman,Respondent?s senior noise control engineer, who relied on the exhibits ingiving his expert testimony. Thus, authentication by Savell was unnecessary.Finally, we find that Respondent?s contention that the Secretary failed to laya proper foundation for admission of the exhibits is without merit. JudgeHarris correctly allowed admission of the documents because, as he noted, theywere referred to at length during the hearing.??????????? Forthese reasons, we find that Judge Harris correctly admitted Exhibits C?6 andC?13 for the purpose of developing a clear record.C. Respondent?s Settlement Proposal??????????? In aletter to Judge Harris, dated June 6, 1975, the Secretary noted that ?. . . theparties are attempting to enter into a stipulation to amicably resolve at leastportions of the contested case.? On June 13, 1975, Respondent sent to theSecretary a proposed abatement plan concerning 18 of the cited locations. Theparties, however, never reached agreement on these locations.??????????? Atthe hearing, the Secretary?s noise expert, Paul Ostergaard, admitted oncross-examination that he was aware of the settlement proposal submitted by theRespondent to the Secretary. He testified, however, that his conclusions wereindependent of the Respondent?s abatement recommendations. Respondent moved tosuppress the testimony of Ostergaard, his resume (Exhibit C?9), and his noisesurvey (Exhibit C?10), to the extent they related to 15 subitems mentioned inthe settlement proposal. Respondent argued that the Secretary had violatedFederal Rule of Evidence 408, which prohibits the use of an offer of compromiseto prove liability or invalidity of a claim or amount.[10] Respondent noted that ithad not reached an agreement with the Secretary. It contended that, of the 19subitems for which Ostergaard had concluded feasible controls were available,15 had been mentioned in the settlement plan. The Secretary?s counsel repliedthat Ostergaard?s conclusions were ultimately his own and that Ostergaard didnot rely on the plan to reach those conclusions. The Secretary?s attorneyconceded that he could not submit the proposal as evidence and explained thathe was not attempting to do that. Judge Harris reserved judgment on thequestion but admitted Ostergaard?s resume, Exhibit C?9, and his noise survey,Exhibit C?10, into evidence. At the close of the hearing, Respondent restatedits motion to suppress Ostergaard?s testimony concerning the 15 subitemsmentioned in the settlement proposal and asked that those subitems be dismissed.Judge Harris took the motion under advisement.??????????? Inhis decision, Judge Harris denied Respondent?s motion to suppress Ostergard?stestimony and report based on the asserted violation of Federal Rule ofEvidence 408 because Respondent failed to show that the compromise offer wasused as evidence to prove the allegations of the citation. The judge observedthat Ostergard?s alleged agreement with facets of Respondent?s proposal wasoutside of Rule 408 because the Secretary did not offer the settlement plan asevidence. Instead, Respondent?s counsel brought out the facts about thesettlement agreement and negotiations on cross-examination.??????????? Inits brief on review, Respondent renews its contention that Ostergaard relied onRespondent?s settlement plan in reaching his conclusions on feasible controls.In a detailed chart, Respondent analyzes the recommendations of Ostergaard andthose of its expert, Toothman, and concludes that there is agreement in therecommendations with respect to 14 of 15 locations. According to Respondent,this agreement is more than coincidental and establishes that, despite hisdenials, Ostergaard considered and adopted numerous recommendations ofRespondent?s expert as his own.??????????? Notingthe policy encouraging the settlement of contested cases, Respondent arguesthat it is well-established that neither party can introduce evidence of asettlement offer to support its case, a principle embodied in Federal Rule ofEvidence 408. Respondent contends that Ostergaard?s adoption of Respondent?s recommendationsas his own is an attempt by the Secretary to introduce the offer of compromiseunder the guise of recommendations by its expert, a mere subterfuge tocircumvent the clear prohibition of Rule 408. Thus, Respondent requestsreversal of the judge?s denial of its motion to suppress the testimony ofOstergaard, Ostergaard?s resume (Exhibit C?9), and his recommendations inExhibit C?10 concerning 15 subitems.??????????? Respondentasks the Commission to reconsider its arguments made before the judge. BecauseJudge Harris correctly decided the issue, we adopt the judge?s findings andconclusions on this issue. Gulf Oil Co.,77 OSAHRC 216\/B10, 6 BNA OSHC 1240, 1976?77 CCH OSHD ?\u00a022,737 (No. 14281,1977).[11]D. Respondent?s Exhibit R?7??????????? Inconnection with the testimony of its senior noise control engineer, Toothman,Respondent sought to introduce into evidence Exhibit R?7, a summary of anIndustrial Fastener Institute (?IFI?) study. Toothman prepared the summary foruse at the hearing. The document divides the machines listed in the citationinto four categories depending on the degree of relevance of the IFI study tothe noise problem created by each machine. Toothman explained that the exhibitwas based on an ongoing study to determine noise controls for typical machinesused in the industry. The machines surveyed were not those at the Lebanon plantbut ?typical machines located in other plants.? Respondent?s attorney assertedthat Exhibit R?7 would show that Respondent ?is participating in [a]good-faith, industry-wide attempt to solve noise reduction problems underlaboratory conditions.? Respondent added that the exhibit would indicate thatthere are ?no current feasible engineering controls? for the machines under thefirst heading, ?Noise Sources (machines) definitely included in IFI Study.? TheSecretary?s counsel objected to Exhibit R?7 as irrelevant. He argued that,because the IFI study was not completed, Exhibit R?7 could not reflect anyresults about feasibility. Judge Harris observed that Exhibit R?7 did notestablish the infeasibility of noise controls. At the close of the hearing,Respondent renewed its request to admit Exhibit R?7 and the Secretary?sattorney objected that it had no relevance to the alleged violation. JudgeHarris concluded that nothing would be gained by admitting Exhibit R?7 andrejected it. Respondent excepted to the ruling. In his decision, Judge Harrisreaffirmed his decision not to admit Exhibit R?7.??????????? Onreview, Respondent argues that Exhibit R?7 should have been admitted for thepurpose of having a clear record and because it was discussed at length ondirect and cross-examination. Respondent contends that the exhibit establishesa relationship between the cited equipment and the IFI study. Furthermore,Respondent urges that the document is relevant because it establishes, inconjunction with Toothman?s testimony, that there are not any availablefeasible engineering controls to reduce or eliminate the noise levels of sometypical industrial fastener equipment ?such as heading equipment, boltmakers,thread rollers and slot furnaces.? Respondent also argues that otherinformation in Exhibit R?7 is pertinent to determination of the feasibility ofcontrols for particular machines.??????????? Weconclude that the disputed document is a bare outline of the IFI study and thatit contains no substantive information on the availability or feasibility ofnoise controls for the designated locations. As Toothman testified, the studywas an ongoing one which began on June 1, 1975, only about ten weeks before thehearing commenced. Given the incompleteness of the IFI study, we agree with theSecretary that, Exhibit R?7 was irrelevant because there were no results toconsider. In addition, the study on which the exhibit was based did not concernRespondent?s machinery at the Lebanon plant but, instead, ?typical? machineryat other plants. In view of the shortcomings of the document and its tenuousrelationship to the facts of this case, Judge Harris properly concluded thatExhibit R?7 would add nothing to the record and excluded it. We accordinglyaffirm the judge?s decision not to admit Exhibit R?7 at that stage in theproceedings.IV??????????? Althoughwe affirm the judge?s rulings discussed above, we conclude that, by failing topermit Respondent to inspect a memorandum prepared by the compliance officer,Judge Harris committed a procedural error that requires us to set aside hisdecision.A. Compliance Officer?s Memorandum, Exhibit C?8??????????? ComplianceOfficer Renner admitted on cross-examination that, on August 5, 1975, he hadwritten a memorandum to his supervisor ?regarding feasible engineering controlsfor those operations? not covered in the report of the Secretary?s noiseexpert. Respondent?s counsel asked for a copy of the document. Counsel for theSecretary replied that it was a privileged work product, developed at hisdirection within two weeks of the hearing ?as part of the preparation for thiscase . . ..? Judge Harris reviewed the document, marked it Exhibit C?8, andexplained to Respondent that it concerned the noise expert?s report. Heremarked that Renner had not testified about that report, with the exception of?two or three peripheral occasions.? Judge Harris found that the memorandum, an?in-house comment by Mr. Renner on various aspects of Ostergaard?s report,? wasa privileged work product. The judge withheld the exhibit and Respondentexcepted to the ruling.??????????? Inits post-hearing brief, Respondent moved to strike Renner?s testimony and theexhibits related to the testimony?C?1, C?2, C?3, C?4 and C?5[12]?on the ground that it wasimproperly denied an opportunity to examine Exhibit C?8. In his decision, JudgeHarris summarily rejected this motion for the reasons noted at the hearing.??????????? Onreview, Respondent argues that the judge improperly found that Exhibit C?8 wasa privileged work product and consequently erred in refusing to allow theRespondent an opportunity to inspect the memorandum.??????????? Respondentcontends that the principle of Jencks v.United States, 353 U.S. 657 (1957), applies to this proceeding. in Jencks, the United States Supreme Courtheld that a defendant is entitled to inspect all reports of undercover agentswho appear as government witnesses so long as the reports relate to the eventsand activities the witnesses testify to at trial. Further, the Court determinedthat it is not necessary that the defendant show that the reports areinconsistent with the testimony of the witness if they are related to the samesubject. The Court observed that, ?[b]ecause only the defense is adequatelyequipped to determine the effective use for [the] purpose of discrediting theGovernment?s witness and thereby furthering the accused?s defense, the defensemust initially be entitled to see [such reports] to determine what use may bemade of them.? Id. at 668?69. Respondentnotes that the rule of Jencks v. UnitedStates, supra, has been applied to administrative hearings, citing United States v. Bostic, 336 F.Supp.1312 (D.S.C. 1971), aff?d, 473 F.2d1388 (4th Cir. 1972), cert. den., 411U.S. 966 (1973).??????????? Inaddition, Respondent relies on FrazeeConstruction Co., 73 OSAHRC 34\/B5, 1 BNA OSHC 1270, 1973?74 CCH OSHD ? 16,409(No. 1343, 1973), in which the Commission affirmed a judge?s order vacating acitation and proposed penalty because the Secretary refused to produce certainnotes and memoranda prepared by a compliance officer. In Frazee, the Secretary maintained the documents were exempt fromproduction on four grounds: (1) irrelevance; (2) untimeliness; (3) executiveprivilege; and (4) privilege under exception (b)(7) of the Freedom ofInformation Act, 5 U.S.C. ? 552, as ?investigatory records compiled for lawenforcement purposes.? The Commission dismissed each of these arguments,finding that the documents formed the foundation on which the alleged violationwas predicated and therefore the Secretary was required to disclose them.Respondent argues that under Frazee withholding evidence that may aid anemployer violates procedural due process and denies the employer its right to afair and impartial hearing.??????????? Respondentconcludes that Judge Harris clearly erred in not allowing it an opportunity toinspect Exhibit C?8 and that, because Respondent was denied this opportunity,the Commission should strike the entire testimony of the compliance officer andExhibits C?1, C?2, C?3, C?4 and C?5, and dismiss the citation.B. Employer Opportunity to Examine ComplianceOfficer?s Memorandum.??????????? In Massman-Johnson (Luling), 80 OSAHRC ??,8 BNA OSHC 1369, 1980 CCH OSHD ? 24,436 (No. 76?1484, 1980), appeal filed, No. 80?3413 (5th Cir. June2, 1980), we stated the following with respect to information that we hadpreviously found to be exempt from discovery under both the work productprivilege, Fed. R. Civ. P. 26(b)(3), and the informer?s privilege:During the hearing itself, differentconsiderations come into play. The respondent is entitled to an opportunity forfull and effective cross-examination of each witness. This includes anopportunity to test the veracity and accuracy of a witness?s testimony againstprior statements by that witness on the same subject.?8 BNA OSHC at 1376, 1980 CCH OSHD at p. 29,808. See Frazee Construction Co., supra; Blakeslee-Midwest Prestressed Concrete Co.,77 OSAHRC 191\/A2, 5 BNA OSHC 2036, 1977?78 CCH OSHD ? 22,284 (No. 76?2552,1977). We then noted that this need for effective cross-examination isrecognized under the approach of the Jencks Act.[13]13 Accordingly, we adoptedthe following rule in Massman-Johnson (Luling):[W]hen a witness has completed testifyingfor the Secretary on direct examination, the Secretary shall, upon motion by arespondent, turn over to it all the witness?s prior statements that are in thegovernment?s possession and that relate to the subject matter of the witness?stestimony.?8 BNA OSHC at 1376, 1980 CCH OSHD at p. 29,808.??????????? Wetherefore conclude, with respect to the case now before us, that the judgeshould have granted Respondent?s request to examine the document at issue. Asour decision in Massman-Johnson (Luling)indicates, the fact that the document may have been exempt from pre-hearingdiscovery as a privileged work product did not justify the judge?s decision todeny Respondent access to the document at the hearing. Indeed, under the JencksAct, the work product doctrine does not bar production of writings that areotherwise producible. See Goldberg v.United States, 425 U.S. 94 (1976); UnitedStates v. Hilbrich, 341 F.2d 555 (7th Cir. 1965), cert. denied, 381 U.S. 941 (1965), reh. denied, 382 U.S. 874 (1965), 384 U.S. 1028 (1966) (two mems.).Further, the protection of work product under Federal Rule of Civil Procedure26(b)(3) applies to the discovery stage only.[14] The rule does not affectuse of the evidence at trial.[15]? 15 8 Wright and Miller, FEDERAL PRACTICE AND PROCEDURE ? 2023, p. 63 n. 17.1 (Supp.1979).Moreover, although Judge Harris found that the document related ?onlyperipherally? to the testimony of compliance officer Renner, we are not free tospeculate on the use Respondent would have made of the memorandum duringcross-examination.[16]??????????? Accordingly,to assure Respondent an opportunity for effective presentation of its case, weset aside the judge?s decision regarding Exhibit C?8. On remand, the Secretaryshould be provided an opportunity to turn over to Respondent a copy of thatdocument, Renner?s August 5, 1975 memorandum to his supervisor. In addition,Respondent should be provided an opportunity to present additional evidence onany matter that is related to the information or opinions contained in ExhibitC?8 and also within the scope of our remand order. In turn the Secretary shouldbe provided an opportunity to rebut any new evidence introduced by Respondent.However, if the Secretary does not turn over a copy of Exhibit C?8 to theRespondent, the judge should enter an order striking the compliance officer?stestimony and the related exhibits from the record.V??????????? Wetherefore conclude that the judge?s decision must be set aside and the caseremanded for reconsideration. Accordingly, this case is remanded to the chiefjudge for assignment to an administrative law judge who shall conductproceedings necessary to dispose of the case on its merits.[17] In addition to observingthe instructions set forth in part IV B of this decision, the judge should alsotake note of and adhere to the following instructions. First, the remand ofthis case is limited to the fifteen subitems of the citation that have not beenfinally disposed of by this decision. See note 2 supra. The judge shouldreconsider Judge Harris?s disposition of these subitems in light of the record,including any new evidence introduced by the parties. Second, in reassessingthe case, the judge should apply pertinent intervening precedent announcedsince Judge Harris?s decision. For example, the Commission has determined thatdosimeter readings may be used to measure exposure under the noise standard,section 1910.95. E.g.,Wheeling-Pittsburgh Steel Corp., 79 OSAHC 66\/A2, 7 BNA OSHC 1581, 1979 CCHOSHD ? 23,784 (No. 14702, 1979); Love BoxCo., 76 OSAHRC 45\/D5, 4 BNA OSHC 1138, 1141 n. 2, 1975?76 CCH OSHD ?20, 588at p. 24,629 n. 2 (No. 6286, 1976). In addition, the Commission has held thatthe Secretary must prove the technological and the economic feasibility ofengineering or administrative controls for reducing employee noise exposure. E.g., Samson Paper Bag Co., 80 OSAHRC??, 8 BNA OSHC 1515, 1980 CCH OSHD ? 24,555 (No. 76?222, 1980); Continental Can Co., 76 OSAHRC 109\/A2, 4BNA OSHC 1541, 1976?77 CCH OSHD ?21,009 (Nos. 3973 et al. 1976), appeal withdrawn, No. 76?3229 (9th Cir.April 26, 1977). Both parties presented virtually no evidence on the economicfeasibility of the suggested controls and Judge Harris made no findings on theissue. Therefore, the parties should have the opportunity to present furtherevidence and argument on economic feasibility.[18] SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: FEB 19 1981\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 12817 BETHLEHEM STEEL CORPORATION, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 April 12, 1976DECISIONAppearances:Alan J. Davis, Esq.Marshall H. Harris, Regional SolicitorU. S. Department of Labor14480 Gateway Building3535 Market StreetPhiladelphia, Pennsylvania 19104Attorneys for Complainant\u00a0Jack D. Shoffner, Esq.Bethlehem Steel Corporation663 Martin TowerBethlehem, Pennsylvania 18016Attorney for Respondent\u00a0Mr. George HeblowChairman, Safety CommitteeLocal Union No. 1374United Steelworkers of America134 Cumberland StreetLebanon, Pennsylvania 17042Appearing for Local Union No. 1374\u00a0Harris, JudgeOn March 6, 1975, Bethlehem Steel Corporation(Bethlehem) was issued a citation pursuant to the provisions of theOccupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (the Act)alleging it was in non-serious violation of Section 654(a)(2) thereof in that aninspection initiated on January 15, 1975, disclosed that the standard at 29C.F.R. 1910.95 was not being complied with at Bethlehem?s plant at 1 CumberlandStreet, Lebanon, Pennsylvania. The citation detailed the alleged violation toemployees engaged in operations at 38 listed machine locations.[19]??????????? Thesaid citation required ?Short Term Abatement? for Item (a) within 30 days andfor Items (b) and (c) ?Immediately upon receipt of citation.? In additionBethlehem was required to submit a detailed plan for ?long term abatement tothe Area Director of the Occupational Safety and Health Administration (OSHA)by April 5, 1975 and to accomplish complete abatement by March 6, 1977.Complainant?s definitions of these terms are set out below.[20]??????????? ANotification of Proposed Penalty, issued to Bethlehem on the same day, proposedno penalty for the alleged violation.??????????? Thestandard at 29 C.F.R. 1910.95 (39 FR 22157?22158, October 18, 1972) provides:\u00a0(a) Protection against the effects ofnoise exposure shall be provided when the sound levels exceed those shown inTable G?16 when measured on the A scale of a standard sound level meter at slowresponse. When noise levels are determined by octave band analysis, theequivalent A-weighted sound level may be determined as follows:(Fig. G?9 is not applicable and notreproduced.)?(b) (1) When employees are subjected tosound exceeding those listed in Table G?16, feasible administrative orengineering controls shall be utilized. If such controls fail to reduce soundlevels within the levels of Table G?16, personal protective equipment shall beprovided and used to reduce sound levels within the levels of the table.?(2) If the variations in noise levelinvolve maxima at intervals of 1 second or less, it is to be considered continuous.?(3) In all cases where the sound levelsexceed the values shown herein, a continuing, effective hearing conservationprogram shall be administered.?Table G?16?Permissible Noise Exposures Duration per day, hours Sound level dBA slow response 8 90 6 92 4 95 3 97 2 100 1 ? 102 1 105 ? 110 ? 115 \u00a01??????????? Whenthe daily noise exposure is composed of two or more periods of noise exposureof different levels, their combined effect should be considered, rather thanthe individual effect of each. If the sum of the following fractions: C1\/T1+, C2\/T2Cn\/Tn exceeds unity, then, the mixed exposure should be considered to exceedthe limit value. Cn indicates the total time of exposure at a specified noiselevel, and Tn indicates the total time of exposure permitted at that level.??????????? Exposureto impulsive or impact noise should not exceed 140 dB peak sound pressurelevel.??????????? Bethlehemfiled a Notice of Contest to the said citation dated March 27, 1975 pursuant toSection 659 of the Act. Thereafter, by virtue of the terms of an order datedMay 28, 1975, Complainant conducted a further inspection of Bethlehem?s saidplant on July 9, 1975.??????????? Bethlehemis a corporation organized in the State of Delaware and maintains a principaloffice at Bethlehem, Pennsylvania. It owns and operates the plant in Lebanon,Pennsylvania, together with all of the equipment therein (including themachines listed on the citation, supra) wherein it manufactures steel, metalproducts and machinery which it sells and distributes to states other than Pennsylvania.Bethlehem sales for the year 1974 approximated $5.38 billion; it is the secondlargest manufacturer in the United States steel industry and employs some 2,127hourly employees. The citation herein was posted at the time clock, at or aboutthe time of its receipt, remains posted at that place and service of the saidcitation and of the Notice of Proposed Penalty are conceded (Tr. 4?9).??????????? Itwas proposed, without objection, that the citation be amended to locate Item(b) in Factory Division No. 1 and that Item N refer to ?wire drawer #211?rather than #14, and it is so ordered.??????????? Noobjection having been received, the corrections to the transcript of thehearing herein, as detailed by Bethlehem in Attachment ?D? to its brief filedherein, be and they are hereby adopted.??????????? Bethlehem?smotion to suppress the testimony of Leonard Renner and Exhibits C?1, C?2, C?3,C?4 and C?5 (Br. pp. 12?14) is denied for the reasons heretofore expressed (Tr.291?292).??????????? Complainant?sCompliance Officer (CO) conducted an inspection at Bethlehem?s Lebanon facilityon February 10, 18, 21, 25, 26, 27 and on March 4, 1975. During theseinspections he took a number of instantaneous sound level readings on a soundlevel meter which measured noise levels in decibels (dBA) on the A scale atslow response (Tr. 24?25). In addition, he used five Dupont Audio Dosimeters(dosimeter). The dosimeters as well as the sound level meter were calibratedand their readings checked prior to their use in Bethlehem?s plant (Tr. 30; 35).The dosimeter measures the percentage of permissible daily exposure to noiseand correlates the amount of time that an employee is exposed. The instrumentis carried on the person of the employee and its microphone, which isnon-directional, is attached to his clothing in the vicinity of his hearinglevel. Noise impulses are converted to electrical energy which, in turn,produces a reading on the dosimeter in numbers which indicate a percentage ofexposure. Readings above 100% indicate non-permissible exposure keyed to theTable G?16 in the standard at 1910.95, supra (Tr. 25?30). However, where thedosimeter readout for 3 hours indicated 100% but the employee involved wasactually exposed to the same noise source for 6 hours, a projection is made bydoubling the readout to produce 200%, an impermissible exposure for the 6-hourperiod (Tr. 36). In addition, a morning readout of 50% will be added to anafternoon readout of 75% to produce a sum of 125% for the time covered by bothexposures (Tr. 36?37). For the purposes of the inspection herein, the COrejected dosimeter readings below 133% to allow for a plus or minus 2% errorwhich results in a grey range from 78% to 132% (Tr. 31?32). Dosimeter readoutstaken during his said inspection were recorded by the CO in Exhibit C?2 (Tr.38) and in Exhibit C?4 (Tr. 224?225).??????????? Workat almost all of the 38 cited locations herein requires the employee oremployees to move about and in some instances to go from one area in the plantto another for irregular periods of time during the 8 hours each spends on thejob (Tr. 35). And, according to the CO, the dosimeter obviated the necessity tofollow the affected employee around to determine each sound level and the timeperiod he was exposed to such sound level. However, he took instantaneous soundlevel meter readings, in dBA, in the area such employee was working and notedthe readings and the time such readings were taken (Tr. 35?36; 44?45; Exh.C?3).??????????? Complainantrelies not only upon the aforesaid sound level meter readings and the testimonyof employee witnesses, but upon the dosimeter readouts, actual and projected(Complainant Br. pp 4?6).??????????? Withoutcomment on the scientific accuracy and reliability of the dosimeter as aninstrument to correlate sound levels to time periods and expressing the resultin percentage terms related to permissible exposures to stated noise levels inthe standard at 29 CFR 1910.95, I find that the standard does not include thedosimeter as a recognized means of determining violation or compliance, i.e.,determining when ?Protection against the effects of noise exposure shall beprovided. . . .? There are but two methods provided in the standard fordetermining ?when the sound levels exceed those shown in Table G?16; and theyare, measurement of sound levels ?on the A scale of a standard sound levelmeter at slow response? or use of Figure G?9 to determine the equivalentA-weighted sound level ?when noise levels are determined by octave bandanalysis.???????????? I amaware of but four opinions, none of which are decisions of the ReviewCommission, which have considered the use of the dosimeter, Secretary of Labor v. Love Box Company, Inc.,Docket No. 6286 (October 10, 1974), presently under review; Secretary of Labor v. Seaboard Coast Line R.R. Co., 18 OSAHRC 316 (Final Order May 30, 1975); Secretary of Labor v. Tom Brown, Inc., Docket No. 11524 (FinalOrder August 7, 1975) and Secretary ofLabor v. Ford Motor Company, Inc., Docket No. 11542 (November 3, 1975).??????????? In Love Box Company, supra, the trial judgeconcluded ?that the regulation in its present form neither endorses norprohibits the measurement of noise by means of audio dosimeters.? He was of theopinion that the reference in the standard to the additional method ofdetermining noise levels by octave band analysis was an indication that thestandard ?was not intended to specify exclusive instrumentation for themeasurement of noise.? I am, most respectfully, unable to discern anyambiguity, and adhere to my opinion that the meaning of the standard is plain.It is of interest to note that reference is made in Love Box Company, supra, (fn. 4), to an exhibit indicating that theOSHA Standards Advisory Committee has proposed a revised noise standard whichspecifically includes the dosimeter as an approved instrument for measuringnoise exposure.??????????? In Seaboard Coast Line R.R. Co., supra, the trial judge held that thestandard prohibits primary reliance on dosimeter readings to establish theinitial determination of a violation of the permissible sound exposure set outin Table G?16. In Tom Brown, Inc., supra,the trial judge concluded that ?The standard sound level meter at slow responseis the method of measurement which is apparently the mandate of the regulationat ? 1926.52(a)?.[21] In Ford Motor Company, Inc., supra, the respondent contended thatbecause of the various duties of the single employee tested, a noise exposuresampling should be conducted over a five-day workweek and raised no objectionto the use of a dosimeter.??????????? Noevidence was offered concerning the overall noise level in the plant on any ofthe inspection dates and the evidence was limited to the 38 cited locations. Iam therefore called upon to make a separate determination in each instancewhether sound levels exceeded those shown in Table G?16 requiring thatprotection be provided against the effects of noise exposure.??????????? Itema, Roll hand, ten inch mill: Complainant failed to establish a need forprotection at this location. Sound level meter readings were taken on February10, 1975, at 10:10 a.m., 90?92 dBA; 10:40 a.m, 94?95 dBA and 95?97 dBA; 12:20p.m., 95?96 dBA and 2:25 p.m., 93?95 dBA. There are six roll hands each 8-hourshift who rotate to various work areas. The noise varies in these differentareas although the noise in each location is constant throughout the day. Theemployee who testified concerning conditions on February 10, 1975, stated hewas on the bridge for one hour and then proceeded to the lower end of the millabout 400 feet away where the noise is less. He spent three hours there sortingbars before returning to the bridge. Although he stated he did not take timeout for lunch, he spent three hours outside the mill beginning at 12:30 p.m.Sometimes he remains outside the mill from 1 o?clock to 5 o?clock in theafternoon. In addition, the mill shuts down for a changeover once or twice eachday for a period of 20 minutes and that the noise level is low during thesechangeovers. He stated that there was at least one changeover on February 10,1975 (Tr. 41?78; C?3 p. 2).??????????? Thisemployee spent 5 1\/2 hours in the mill on February 10, 1975, from 7 a.m. to12:30 p.m. Three hours of this time was spent at a point 400 feet from thebridge where the noise was less. There was one changeover at 11 a.m. lasting 20minutes during which time the noise level was less than 90 dBA (C?3 pp. 1?2).He therefore was subjected to dBA varying from 90?97 during a period of twohours 10 minutes. G?16 permits up to three hours at 97 dBA.??????????? Itemb, Automatic Bundling unit: A need for protection was established at thislocation. Sound level meter readings were taken on February 10, 1975 at a.m.,95?97, 93?95 dBA; 11:45 a.m., 95?98 dBA; 12:45 p.m., 93?97 dBA, 91?94 dBA,92?94 dBA and at 2:50 p.m., 94?96 dBA (C?3 p. 6).??????????? Theemployee-operator spent eight hours at this location. The work during theentire day is the same. He takes 1\/2 hour for lunch and 30 minutes cleanup timewith a 10-minute break. Although he rotates jobs with others the area in whichthey rotate is about 20 feet. Allowing 20 minutes for one plant changeover, hespends six hours and 30 minutes at his post exposed to dBA readings from 92 to98 (Tr. 79?85). See, Reynolds MetalsCompany Docket No. 1551 (February 25, 1976); Sun Shipbuilding and Drydock Company, 11 OSAHRC 171 (1974).??????????? Itemc, Snag Grinder #249: G?16 sound levels were exceeded on February 25, 1975.Sound level meter readings were taken at 9:04 a.m., 93?97 dBA; 9:06 a.m., 93?96dBA, 91?94 dBA; 10:17 a.m., 90?91 dBA; 10:19 a.m., 110 dBA, 111 dBA; 10:20a.m., 95?98 dBA; 11:12 a.m., 91?94 dBA; 11:45 a.m., 91?94 dBA (C?3 p. 18). Theemployee-operator testified that he spends eight hours per day at the machinewhich grinds die markings from forgings with a wheel which revolves at 1700revolutions per minute. He has a 10-minute break in the morning, takes 30minutes for lunch and 15?20 minutes cleanup time. Allowing 20 minutes for achangeover, he spends six hours and forty minutes at his machine. He testifiedthat the work is the same during the entire shift and that the noise level isconstant (Tr. 85?92). See, ReynoldsMetals, supra: Sun Shipbuilding, supra.??????????? Itemd, Furnace Shear, ten-inch mill: Complainant has not established a need forprotection at this location. Sound level meter readings were taken on February10, 1975 at 9:30 a.m., 97?99 dBA; 10:40 a.m., 96?100 dBA; 11:00 a.m., 82 dBA(mill was not operating); 12:20 p.m., 97?98 dBA; 2:25 p.m., 99?100 dBA (C?3 p.1). No evidence appears to indicate the noise levels between readings on thenoise levels after 2:25 p.m. See, SunShipbuilding, supra.??????????? Iteme, Shear #02?11 and thread roller #08?309: Complainant has not established aneed for protection at this location. Sound level meter readings were taken onFebruary 10, 1975 at 9:05 a.m., 98?99 dBA, 94?96 dBA, 96?104 dBA, 96 dBA; 11:15a.m;, 98?100 dBA, 92 dBA, 94?96 dBA; 2:40 p.m., 95?96 dBA, 98?100 dBA (C?3 p.3). No evidence appears to indicate the noise levels between readings and after2:40 p.m. See, Sun Shipbuildings, supra.??????????? Itemf, Header #131: Complainant has established a need for protection at thislocation. Sound level meter readings were taken on February 10, 1975 at 12:40p.m., 94?96 dBA; 2:30 p.m., 94?95 dBA. The employee-operator testified that heworked eight hours on that date and that the noise is constant all day long. Hetakes lunch for 30 minutes and is allowed a 10-minute break. He is not allowedcleanup time (Tr. 93?97; C?3 p. 4 #2). Allowing a deduction for lunch and breaktime and 20 minutes for changeover time, this employee is exposed to at least94 dBA for a period of approximately seven hours. See, Sun Shipbuilding, supra.??????????? Itemg, Press Q?151: A need for protection at this location has been established.Sound level meter readings were taken on February 10, 1975 at 9:45 a.m.,105?108 dBA, 96?100 dBA, 97?99 dBA; 11:30 a.m. to 11:40 a.m. the mill was down,11:40 a.m., 96?100 dBA, 97?100 dBA, 105?107 dBA (C?3 p. 5). Noemployee-operator testimony was offered to establish the nature of and theconstancy of the noise levels at this location. However, while complainant?sinspection was in progress, Bethlehem took sound level meter readings and, inconjunction with its estimation of operating time by plant personnel,determined the daily noise does at this location to be 2.94 which is anequivalent dBA level of 98 (Tr. 753). This result compares quite well with theprojected exposure at this location indicated by use of a dosimeter (Tr. 58;C?2 p. 1 #2). See, Secretary v. Lee WayMotor Freight, Inc., Docket No. 7674 (December 22, 1975).??????????? Itemh, Press Q?153: Complainant has failed to establish a need for protection atthis location. Sound level meter readings were taken on February 18, 1975, at9:30 a.m., 97?100 dBA, 92?95 dBA; 10:41 a.m, 96?99 dBA, 89?93 dBA; 1:30 p.m.,less than 90 dBA; 2:45 p.m., less than 90 dBA; 2:57 p.m., 92?98 dBA. Noevidence appears concerning noise levels between sound level meter readings andafter 2:57 p.m. See, Sun Shipbuilding,supra.??????????? Itemi, Press Q?153 (Takeoff and bundler): A need for protection has beenestablished at this location. Complainant made sound level meter readings onFebruary 18, 1975 at 9:25 a.m., 95?102 dBA; 9:27 a.m., 94?102 dBA, 98?105 dBA;10:40 a.m., 94?107 dBA; 11:50 a.m., 86 dBA; 30:00 p.m., 102?107 dBA; 2:45 p.m.,under 90, the press was down (C?3 p. 10, #2).??????????? Notestimony was offered concerning the noise and its constancy between readings.However, Bethlehem, on the same day, took sound level meter readings and inconjunction with the operating time determined by plant personnel found a dailynoise does at this location of 6.0 or an equivalent of 103 dBA (Tr. 755). Adosimeter projection based upon an actual exposure time of just under 3 hours,also indicated an exposure in excess of that permitted in Table G?16 (Tr.194?195; 333?334), Lee Way Motor Freight,supra.??????????? Itemj, Ear press #11?48: Complainant failed to establish a need for protection atthis location. The CO made sound level meter readings on February 18, 1975 at9:20 a.m., 96?102 dBA, 93?95 dBA; 10:38 a.m., 96?102, 93?95 dBA; 10:45 a.m.,92?93 dBA; 1:20 p.m., 96?102 dBA, 92?93 dBA; 2:52 p.m., 92?102, 92?94 (C?3 p.8, #2). No evidence appears concerning the noise levels and their constancybetween readings. See, Sun Shipbuilding,supra.??????????? Itemk, Spike machine #17: A need for protection at this location has beenestablished. The CO made sound level meter readings at this location onFebruary 18, 1975 at 10:08 a.m., less than 90 dBA (break period); 10:25 a.m.,99?100 dBA, 95 dBA; 1:06 p.m., under 90 dBA; (the machine was being hand-fed atthis time) 1:10 p.m., 95?96 dBA; 2:33 p.m., 93?94 dBA (C?3 p. 9). One of theemployee-operators testified tht he works eight hours at this machine; thenoise is constant all day long; he takes lunch for 30 minutes, is allowed aten-minute break and does not take cleanup time (Tr. 98?101). The averageexposure time here is more than seven hours and exceeds the permissible noiseexposure limited in Table G?16.??????????? Item1, Spike machine #19: A need for protection has not been established at thislocation. Sound level meter readings were made on February 18, 1975, at 10:08a.m., under 90 dBA (general area?break period); 10:25 a.m., 100?101 dBA, 97?98dBA; 1:08 p.m., 100?102 dBA; 2:33 p.m., 100?102 dBA (C?3 p. 9). Theemployee-operator was not offered as a witness. The employee-operator of spikemachine #17, Item k, testified that there are five spike machines, each withits own furnace, all of which are very noisy and roar all day (Tr. 100?101).The CO stated that the major noise source came from the operation of thefurnaces in the area and from the forming mechanism of the spike machine (Tr.335?336). The dosimeter readout projected an exposure of 192% of thepermissible noise exposure permitted by the Table at G?16 (C?2 p. 2, Col 4) andBethlehem?s survey, done in October 1974, found a daily noise does of 5.21, theequivalent of 102 dBA (Tr. 757). However, as I have determined, supra, thedosimeter is not specified in the standard as an instrument whose readings willsupport a determination that protection against the effects of noise exposureshall be provided. Such a determination can be supported only by measurementson the A scale of a standard sould level meter at slow response or by octaveband analysis equivalents on the A scale by the use of Figure G?9 (29 CFR1910.95(a)). It was conceded by the CO that he made no sound level meterreadings at each phase of the operation at each station cited, nor did herecord the time each employee spent at each such phase of that operation.??????????? Itseems clear from the language of the standard that in order to make a findingthat protection against the effects of noise exposure shall be provided, adetermination must be made that an employee or employees have been exposed tothe listed sound levels at dBA slow response for periods in excess of thenumber of hours set out in Table G?16. This cannot be a matter of conjecturebut must be based on evidence upon which such a conclusion may fairly bearrived at. The record in this instance is barren of any testimony or otherevidence touching the actual duration of the exposure of the operator of thespike machine at Item 1 to the sound levels shown by the three-sound levelmeter readings, the first at 10:25 a.m., the second about two and one-halfhours later and the last about an hour and one-half after that. See, Sun Shipbuilding, supra.??????????? Itemm, Hand spike machine #24: The need for protection at this location has beenestablished. Sound level meter readings were made on February 18, 1975 at 10:14a.m., 91?94 dBA; 10:25 a.m., 97?98 dBA; 96?98 dBA; 1:06 p.m., under 90 dBA;2:30 p.m., 93?95 dBA (C?3 p. 9). The employee-operator testified that he spends7 1\/2 hours each day at this machine and that the sound is constant. stant. Hetakes a 10-minute break in the morning and 30 minutes for lunch. He works onpiecework and does not leave his machine (Tr. 102?103). See, Sun Shipbuilding, supra.??????????? Itemn, Wire drawer #14: A need for protection at this location has beenestablished. Sound level meter readings were made on February 18, 1975 at 8:52a.m., 92?100 dBA, 102?103 dBA; 8:55 a.m., 100 dBA, 110?113 dBA, 117 dBA, 115dBA; 9:03 a.m., 114 dBA; 9:05 a.m., 92?95 dBA; 9:07 a.m., 115 dBA; 9:10 a.m.,116 dBA; 9:11 a.m., 93 dBA; 9:16 a.m., 95?97 dBA; 10:31 a.m., 100?102 dBA;11?42 a.m., under 110 dBA, 98?100 dBA; 1:15 p.m., 112?116 dBA, 111?114 cBA;1:18 p.m., 112?114 dBA; 1:20 p.m., 11?115 dBA; 2:45 p.m., 111?113 dBA, 96?98dBA, 100?101 dBA (C?3 p. 11?12). The employee-operator testified that the noiselevels appear to him to be the same all day, that he works an eight-hour shift,that he takes a 10-minute break in the morning and takes 30 minutes for lunch.There are three machines at this operation. The first welds the wire, thesecond drills the wire to size and the third winds the wire on a spool (Tr.107?112). The dosimeter readout projected 127% of the permissible noiseexposure in Table G?16 (C?2 p. 2, Col. 5). As additional corroborationBethlehem surveyed this location during the inspection and found the dailynoise dose to be 3.67 the equivalent of 99 dBA (Tr. 758). See, Sun Shipbuilding, supra.??????????? Itemo, Pickling room: A need for protection has been established at this location.Sound level meter readings were taken on February 18, 1975 at 9:13 a.m., 93?94dBA, 94 dBA, 93?96 dBA; 10:35 a.m., (same readings); 11:44 a.m., (samereadings); 1:20 p.m., (same readings); 2:50 p.m., (same readings) (C?3 p. 8,#1). The employee-operator testified that he worked readings) (C?3 p. 8, #1).The employee-operator and that there is no change in the noise level during theday. He takes a 10-minute break in the morning, takes 30 minutes for lunch anddoes not leave the work area (Tr. 113?115). See,Sun Shipbuilding, supra.??????????? Itemp, Cold rivet headers and cold rivet spike machines: A need for protection atthis location has been established. Sound level meter readings were taken onFebruary 18, 1975, at 8:37 a.m., 95?97 dBA; 8:40 a.m., 89?91 dBA; 8:42 a.m.,93?95 dBA; 8:45 a.m., 89?91 dBA; 8:46 a.m., 96?98 dBA; 8:48 a.m., 97?99; 10:31a.m., 104?105 dBA, 92?93 dBA; 10:45 a.m., 99?101 dBA; 11:35 a.m., 101?102 dBA;2:35 p.m., 93?94 dBA (C?3 p. 7, #2). The employee-operator testified that heworks eight hours at this location and that the work and noise remainsconstant. There are nine machines in a row, eight are rivet machines while onemachine produces spikes. The latter is electrically operated and produces 168spikes per minute using cold steel stock varying from 1\/4 inch to 3\/8 inchsquare. On the date of the inspection he operated two of these machines andsometimes three. He takes a 10-minute break in the morning, his lunch from 12to 12:30 p.m. and does not take cleanup time. These machines do not shut downduring the morning break. He moves up and down this row of machines whileperforming his work, a distance of between 40 and 50 feet (Tr. 116?120). The COmade eleven readings at this location because the operator moves along the rowof machines during the operation but did not measure the time spent at eachlocation (Tr. 340?341). The dosimeter readout in this instance projected 125%of Table G?16 permissible noise exposure (C?2 p. 2), while Bethlehem?s October1974, noise survey produced a daily noise does at this location of 101 dBA (Tr.760). See, Sun Shipbuilding, supra.??????????? Itemq, Drill press #17?82: A need for protection was established at this location.Sound level meter readings were taken at this location on February 21, 1975, at8:59 a.m., 96?97 dBA; 9:50 a.M., 96?97 dBA, 10:50 a.m., 96?98 dBA; 11:30 a.m.,97?98 dBA, 100 dBA (C?3 p. 14, #1). The employee-operator testified that heworks eight hours at this machine with a 10-minute break in the morning and 30minutes for lunch and that the noise is the same at all times. He works all dayand does not take time to cleanup. The machine is shut down during his morningbreak. He takes his lunch at the location after throwing coffee from a coffermachine (Tr. 122?125). The dosimeter readout projected 118% of the permissiblenoise exposure according to Table G?16 (C?2 p. 3, #2). See, Sun Shipbuilding, supra.??????????? Itemr, Sucker rod header #127: A need for protection was established at thislocation. Sound level meter readings were made on February 21, 1975 at 9:03a.m., 114?116 dBA; 9:05 a.m., 111?116 dBA, 113 dBA; 11:35 a.m., 101?102 dBA,105?107 dBA (C?3 p. 14, #2). The employee-operator testified that he workseight hours on his shift and that the noise during his workday is the same. Hismachine has a furnace and there is another furnace about 30 feet distant for adrill press which is immediately behind him. He works on piecework and attendshis machine all day except for time to get a drink of water. He has a 10-minutebreak in the morning during which he shuts the machine down and he takes 20minutes for lunch. He stated that due to the noise he had difficulty hearinginstructions given him by the CO concerning the wearing of a dosimeter (Tr.133?138). The CO stated that the noise level in the vicinity of this machinewhile it was not in operation was 113 dBA and that at 9:05 a.m. an airdischarge produced a dBA reading of 116 (Tr. 202). See, Sun Shipbuilding, supra.??????????? Items, Coupling tapper #218: A need for protection was established at thislocation. Sound level meter readings were made on February 21, 1975 at 8:55a.m., 101?103 dBA; 9:40 a.m., 99?100 dBA; 9:56 a.m., machine shut down; 11:20a.m., 101?102 dBA; 11:35 a.m., changeover; 11:40 a.m., 101?102 dBA (C?3 p. 15#1). The employee-operator testified he works an eight-hour shift with a 10minute-break in the morning during which the machine is shut down, and 30minutes for lunch. When his machine is operating there is no difference in thenoise level. On the date of the inspection his machine was shut down forrepairs for several hours in the morning during which time he remained in thesame area. He stated that when in operation, his machine, which reams and tapscouplings, sounds like grinding gears (Tr. 127?132). On the day of theinspection herein the operator?s machine was shut down from 9:56 a.m. to 11:20a.m. and, allowing for 30 minutes cleanup time, the operator was exposed to thenoise levels indicated for approximately five hours and 26 minutes. See, Sun Shipbuilding, supra.??????????? Itemt, Nut former #09?58: A need for protection was established at this location.Sound level meter readings were made on February 25, 1975 at 1:41 p.m., 94?96dBA, 93?94 dBA; 1:44 p.m., 96?98 dBA, 98 dBA; 2:52 p.m., 91?93 dBA, 96?99 dBA,92?94 dBA; 3:37 p.m., 96?98 dBA (C?3 p. 20, #1). The employee-operatortestified that he worked a full shift of eight hours, that he does the samework all day long and that the noise is the same both morning and afternoon. Hestated that the machine is subject to occasional breakdowns and that onFebruary 25, 1975, the machine did not function until just before noon andthereafter operated until quitting time at 4 p.m. Nut former #09?58 iselectrically operated. It is 15 feet long and six feet wide. Bars of metal 30feet long are heated in an electric induction furnace and are cut and formedinto nuts which are not threaded. The machine makes square or hexagonal nuts. Alarge furnace is positioned to his left with another located to his right rear.He does not shut his machine down during his 10-minute break (Tr. 139?147). Thesound level meter readings indicate operation of the machine from 1.41 p.m.,deducting 10 minutes for a break and 30 minutes for cleanup, leaves anapproximate exposure time of two hours and 19 minutes. Bethlehem made a surveyat this location at the same time and produced a daily noise does of 1.58,equivalent to 93 dBA (Tr. 768). See, SeeShipbuilding, supra.??????????? Itemu, Burring machine #10?62: A need for protection has been established at thislocation. Sound level meter readings were made February 25, 1975, at 1:56 p.m.,97?99 dBA and at 3:06 p.m., 96?98 dBA (C?3, p. 21, #1). There was testimonythat one, Jean Decker, the employee-operator of this machine worked from 8 a.m.until 4 p.m. with a 10 o?clock break in the morning, 20 minutes for lunch andan allowance for cleanup time. An employee, who worked the same day on asimilar machine, Burring machine #63, stated that Jean Decker worked on themachine at Item u at a distance of eight feet from #63 and that the noise isconstant when both machines are running. After deducting the morning break, 20minutes for lunch and 30 minutes for cleanup time, Jean Decker was exposed tothe noise levels indicated for approximately seven hours. Computing theexposure time from 1:56 p.m. and allowing 30 minutes for cleanup, theapproximate exposure is two hours and four minutes at 96 dBA, taking the minimumreading without interpolation. See, SunShipbuilding, supra.??????????? Itemv. Hand header #159: A need for protection has been established at thislocation. Sound level meter readings were made on February 25, 1975, at 9 a.m.,92?93 dBA, 96?97 dBA; 10:13 a.m., 92?94 dBA; 10:37 a.m., 96?98 dBA; 11:10 a.m.,95 dBA; 11:47 a.m., (same) (C?3 p. 17, #1). The employee-operator testifiedthat he worked eight hours with a 10?minute break and 20 to 30 minutes forlunch, that the machine ran all day, that he is in the area during the entireshift and that the noise is the same all day long. (Tr. 153?157). See, Sun Shipbuilding, supra.??????????? Itemw, Heavy duty heater #160: A need for protection has been established at thislocation. Sound level meter readings were made on February 25, 1975 at 9:10a.m., 96?97 dBA, 97?98 dBA; 9:32 a.m., 98?100 dBA; 11:15 a.m., (same); 11:48a.m., 97?99 dBA (C?3 p. 17, #2). The employee-operator did not testify;however, Bethlehem surveyed the location during the inspection and produced adaily noise does of 3.25, equivalent to 98 dBA. Noise measurements andestimates of operating time were used to determine the daily noise does (Tr.771). See, Secretary v. Lee Way MotorFreight, Inc., Docket No. 7674 (December 22, 1975).??????????? Itemx, Press #148: A need for protection at this location has not been established.Sound level meter readings were made at this location on February 25, 1975 at9:15 a.m., 105?107 dBA; 10:35 a.m., (same); 11:20 a.m., 101?104 dBA; 11:50a.m., (same) (C?3 p. 19, #1). The employee-operator did not testify and exceptfor a dosimeter projection of 212% (C?2 p.4, line 4) and an October 1974 surveymade by Bethlehem which produced a daily noise dose of 2.96, equivalent to 98dBA (Tr. 772), there is no evidence concerning the nature of the noise levelsbetween and following the sound level meter readings made on February 25, 1975at this location which could support a conclusion of exposure to the statednoise level in excess of the periods provided in the Table G?16. See, Sun Shipbuilding, supra.??????????? ItemY, Billet Shear #135: A need for protection at this location was established.Sound level meter readings were made at this location on February 25, 1975 at9:17 a.m., machine down; 10:34 a.m., machine down; 11:15 a.m., machine down,backgrown noise 91?93 dBA; 11:47 a.m., machine down; 1:46 p.m., backgroundnoise 93 dBA, 100?103 dBA, 109 dBA; 2:57 p.m., background noise 92?94 dBA; 3:41p.m., background noise 92?94 dBA (C?3 p. 19, #2). The employee-operator did nottestify. According to the CO the machine ran only in the afternoon beginning at12:31 p.m. and a dosimeter readout, carried by the operator from that timeuntil 3:42 p.m., projected 183% of the permissible noise exposure in the TableG?16 (Tr. 208; 347; C?2 p. 4 line 5?6). However, a survey made by Bethlehem onthe same day, produced a daily noise dose of 2.6 equivalent to 97 dBA which wasbased on noise measurements and estimations of working time of theemployee-operator. See, Lee Way MotorFreight, Inc., supra.??????????? Itemz, Alligator Shear #60: A need for protection has been established at thislocation. Sound level meter readings were made on February 25, 1975 at 1:51p.m., 91?97 dBA; 2:01 p.m., 91?94 dBA; 2:08 p.m., 93?95 dBA, 102?108 dBA; 3:02p.m., 103?110 dBA, 98?100 dBA (C?3 p. 20, #2). The employee-operator did nottestify. A dosimeter readout indicated a projection of 270% of the permissiblenoise exposure provided in Table G?16 (C?2 p. 4, line 3). However no evidencewas offered by complainant indicating the noise levels prior to, between, orfollowing any of the sound level meter readings to form a basis for areasonable conclusion that the employee operating the machine was exposed tothe noise levels indicated for a period in excess of that provided for in TableG?16, Sun Shipbuilding, supra.Nonetheless, Bethlehem made a survey of the noise levels at this location onthe same day the result of which, based upon sound level meter readings andtimes of employee exposure, indicated a daily noise dose of 2.75 equivalent to97 dBA (Tr. 776). See, Lee Way MotorFreight, Inc., supra.??????????? Itemaa, Automatic bolt maker #99: A need for protection has been established atthis location. Sound level meter readings were made on February 25, 1975 at1:52 p.m., 99?101 dBA and at 3:04 p.m., 98?100 dBA (C?3 p. 21, #2). A dosimeterreadout projected 147% of the permissible noise exposure, but again, no proofwas offered to establish the nature and existence of the noise levels before,between or following the sound level meter readings during theemployee-operator?s presence at the machine. However, Bethlehem conducted anoise survey on the same day and using sound level meter readings and the timesof operation produced a daily noise dose of 3.5 equivalent to 99 dBA. See, Lee Way Motor Freight, Inc., supra.??????????? Itembb, Square nut machines: A need for protection was established at thislocation. Sound level meter readings were made on February 26, 1975 at 9:35a.m., 93?98 dBA; 10:25 a.m., 93?98 dBA; 11:05 a.m., 93?103 dBA, 102?103 dBA;11:15 a.m., 93?94 dBA; 1:42 p.m., 93?104 dBA, 100?104 dBA; 2:26 p.m., 93?96dBA; 3:27 p.m., 93?96 dBA (C?3 p. 22, #1). A dosimeter readout here made aprojection of 135% of the permissible noise exposure in Table G?16 (C?2 p. 5)but no evidence was offered by the complainant concerning the nature andexistence of noise levels during the employee-operator?s at this locationbefore, during or following the sound level meter readings. However, hereagain, a contemporaneous study by Bethlehem of the sound level meter readingsand exposure times of the employee at this location indicated a daily noisedose of 3.46 an equivalent of 99 dBA. See,Lee Way Motor Freight, Inc., supra.??????????? Itemcc, Nut Former #62: need for protection at this location was not established.Sound level meter readings were made on February 26, 1975 at 9:39 a.m., 98?105dBA; 10:29 a.m., 97?98 dBA, 98?105 dBA; 11:07 a.m., 89 dBA, 89?90 dBA; 11:40a.m., 89?90 dBA; 1:47 p.m., 98?104 dBA; 2:27 p.m., 98?104 dBA (C?3 p. 22, #2).The employee-operator did not testify. No evidence was offered concerning thenature and extent of the noise levels prior to, during or following the soundlevel meter readings while the employee was present at the machine. See, Sun Shipbuilding, supra.??????????? Itemdd, Parts former #66: A need for protection was established at this location.Sound level meter readings were made on February 26, 1975 at 9:31 a.m., 94?99dBA; 9:41 a.m., 91?99 dBA; 10:20 a.m., 95 dBA, 96?100 dBA; 11:02 a.m., 90?91dBA, 94?95 dBA; 11:42 a.m., 96?100 dBA; 1:41 p.m., 96?100 dBA,; 2:27 p.m.,96?100 dBA; 3:29 p.m., 95?100 dBA (C?3 p. 27). The employee-operator testifiedthat he worked eight hours on the date of the inspection; that he workscontinuously and takes no break for lunch or for a rest period; that the noiseis the same all day long; that he cannot operate the machine unless he canlisten to its operation and that he cannot hear the machine with ear plugs inhis ears. He operates three nut former machines while operating the partsformer and that on the date of the inspection there were other nut tappers inoperation about 20 to 25 feet distant. During the operation he is required tochange coils. A coil lasts 1 1\/4 hours, unless a special product is involved inwhich case the coil will last 20 minutes. The coil change takes about 15seconds. He is required to move around the parts former machine to makeadjustments and he moves continuously in an area of 50 by 30 feet. He works ona piecework basis (Tr. 161?165). The CO testified that the noise is constant,fluctuating only when the machine is shut down to make a coil change, whichtakes about one minute and that the lowest dBA recorded during the time themachine was running was 92?94 (Tr. 211?212). The CO took sound level meterreadings at each of the locations at which the operator is required to performoperations but he did not measure the time spent at each location. He estimatedthat the coil is changed about 10 times during the shift (Tr. 351?352). See, Sun Shipbuilding, supra.??????????? Itemee, Bolt maker #54: A need for protection was established at this location.Sound level meter readings were made on February 26, 1975 at 9:26 a.m., 96?100dBA; 9:50 a.m., 90?92 dBA; 10:18 a.m., 92?94 dBA, 96?100 dBA; 10:56 a.m., 91?92dBA; 11:40 a.m., 97?100 dBA; 12:06 p.m., 97?100 dBA; 2:15 p.m., 98 dBA; 2:50p.m., 96?98 dBA (C?3 p. 26, #2). The employee-operator testified that he workedeight hours at this machine and that the work is the same and the noise isconstant during the eight hours of his shift. He takes a break in the morningbut the machine is not shut down. His machine does not break down often and hecould not recall if there had been a breakdown during this inspection. Thereare eight bolt making machines in a circle around his machine. On the inspectionday he operated two bolt makers, numbers 54 and 79 and a bolt making machine infront of him was also in operation (Tr. 168?72). A dosimeter which he had wornfor between five and six hours, projected 129% of the permissible noiseexposure in Table G?16 (Tr. 171; C?2 p. 5, line 2). See, Sun Shipbuilding, supra.??????????? Itemff, Thread rollers: A need for protection was established at this location.Sound level meter readings were made on February 26, 1975 at 9:29 a.m., 90?92dBA; 10:20 a.m., 90 dBA (machines not running); 10:20 a.m., 91?93 dBA (machinesstarted running); 10:52 a.m., 91?92 dBA; 11:32 a.m., 95 dBA, 94?98 dBA; 1:37p.m., 92?94 dBA; 2:29 p.m., 92?94 dBA; 3:25 p.m., 95 dBA (C?3 p. 23). Theemployee-operator testified that he worked eight hours on this date; that thenoise is constant all day long; he takes a 10-minute break in the morning and30 minutes for lunch. A dosimeter, which he had worn for 3 1\/2 hours during themorning only, projected 83% of the permissible noise exposure in Table G?16 (Tr.178; C?2 p. 5, line 3). See, SunShipbuilding, supra.??????????? Itemgg, Tapper #221: A need for protection was not established at this location.Sound level meter readings were made on February 26, 1975 at 1:50 p.m., 102?105dBA; 2:07 p.m., 102?104 dBA; 2:34 p.m., 102?104 dBA; 3:22 p.m., machine shutdown, under 90 dBA (C?3 p. 26, #1). The CO stated that he had attached adosimeter to the operator which was worn by him from 12:46 p.m. to 3:23 p.m.The readout projected 170% of the permissible noise exposure in Table G?16 (Tr.214; C?2 p.5, line 11). No evidence was offered concerning the nature andextent of noise levels prior to, between or following the sound level meterreadings in the time during which said operator was exposed to such noiselevels. See, Sun Shipbuilding, supra.??????????? Itemhh, Press #22: A need for protection was established at this location. Soundlevel meter readings were made on February 27, 1975 at 9:18 a.m., 92?98 dBA,92?98 dBA; 9:37 a.m., 94?96 dBA, 94?98 dBA; 10:21 a.m., 94?96 dBA, 94?98 dBA;10:15 a.m., 93?95 dBA, 93?98 dBA; 11:39 a.m., 93?96 dBA, 93?98 dBA (C?3 p.28,#1). The employee-operator did not testify. The CO stated that the operatorwore a dosimeter from 8:29 a.m. to 11:55 a.m. and that the readout projected104% of the permissible noise exposure in Table G?16 (C?2 p. 6, line 1). Hestated that the operator was at this press almost all of the time except fortime spent in the men?s room. He stated that the operator worked eight hours,was allowed a 10-minute break in the morning, 30 minutes for lunch, 30 minutesfor cleanup and that his total work time was estimated at less than seven hours(Tr. 214?217). In addition, a survey made by Bethlehem on the same day, byusing sound level meter readings and estimated time of exposure at thislocation, produced a daily noise dose of 1.30, equivalent to 92 dBA (Tr. 785). See, Sun Shipbuilding, supra.??????????? Itemii, Conomatic #257: A need for protection was established at this location.Sound level meter readings were made February 26, 1975 at 9:21 a.m., 93?94 dBA,105 dBA, 94?97 dBA; 9:25 a.m., 94?95 dBA; 9:41 a.m., 95?96 dBA; 10:20 a.m.,95?96 dBA; 10:55 a.m., 94?95 dBA, 94?97 dBA, 105 dBA; 11:32 a.m., 91?93 dBA; at9:36 a.m., general area, 97?102 dBA (C?3 p. 29). The employee-operator testifiedthat the conomatic #257 cuts pipe into couplings and that ends of the couplingsare bored and reamed in preparation for threading out on a machine calledconobore #131. The conomatic is six feet long and three feet wide and standsside by side with the conobore which is four feet long and two feet wide. Heoperates both machines (Tr. 805) and spends more time at the conobore than hedoes at the conomatic and remains in the immediate area of these machinesduring his eight-hour shift. On February 26, 1975 he was running 5\/8 inch stockthrough the conomatic to make sleeve nuts. He takes a 10-minute break in themorning during which the machines are left running. He wore a dosimeter onFebruary 26, 1975 from 8:30 a.m. until 12 noon. He performs the same work allday long and the noise is constant (Tr. 180?184). The dosimeter readoutprojected 102% of the permissible noise exposure in the Table at G?16 (C?2 p.6, line 2).??????????? Thecitation herein makes no reference to the conobore #131 machine. The testimonyof Bethlehem?s Senior Noise Control Engineer, which is not disputed, indicatesthat the two machines are operated by the same employee and are not more thanthree to four feet apart (Tr. 814). This coincides with the employee-operator?sdescription of this operation. While it may be true that the citation does notmake reference to the conobore machine, the omission can have no effect on afinding that the employee-operator at this location needs protection fromexcessive noise levels under the circumstances disclosed here. His employmentrequires that he operate both machines as a unit in the performance of hisassigned tasks. The machines are side by side and are tended by the operatorall during the day. In fact, he spends 75% of his time in the performance of dutiesat the conobore (Tr. 182; 814) and it is clear that any steps taken to affordprotection from excessive noise levels of any employee engaged in thisoperation must of necessity include consideration of the conobore and itscontribution to the noise levels which affect such employee-operator. See, Sun Shipbuilding, supra.??????????? Itemjj, Press #132: A need for protection at this location has not beenestablished. Sound level meter readings were made on February 27, 1975 at 9:06a.m., 109?113 dBA, 109 dBA, 113 dBA; 9:08 a.m., 108?113 dBA, 112?115 dBA; 9:10a.m., 92?94 dBA; 9:45 a.m., 107?112 dBA, 105?108 dBA; 10:18 a.m., 108?112 dBA;10:54 a.m., 107?112 dBA, 11:32 a.m., 107?113 dBA (C?3 p. 30). Theemployee-operator did not testify. A dosimeter, attached to the operator from8:31 a.m. to 11:45 a.m. projected 310% of the permissible noise exposure inTable G?16 (C?2 p. 6, line 3). No evidence appears of record concerning thenature and extent of the noise levels between sound level meter readings whichwill support a finding that the employee-operator was subjected to noise levelsin excess of the permissible noise exposure listed in Table G?16. See, Sun Shipbuilding, supra.??????????? Itemkk, Gridley machine #224: A need for protection has been established at thislocation. Sound level meter readings were made on February 27, 1975 at 9:15a.m., 93?95 dBA, 9:43 a.m., 94?96 dBA; 10:25 a.m., 92 dBA, 11:01 a.m., 93?94dBA, 93?95 dBA; 11:35 a.m., 92?95 dBA (C?3 p. 31). The employee-operatortestified that he spent seven hours at this location less his lunch hour andother breaks. He spent 20 minutes at a grinder, about 50 feet away, to sharpentools and the rest of the day within 10 to 20 feet of the Gridley machine. Hestated that the machine was not down at all on the day of the inspection, thathis work is the same during the entire day and the noise level remains constant(Tr. 185?189). Deducting time for lunch at 30 minutes and two 10-minute breaks,this employee?s exposure was in excess of 6 hours at a minimum dBA level of 92with maximum sound level meter readings 95 dBA and 96 dBA. See, Sun Shipbuilding, supra.??????????? Itemll, Natco Reamer: A need for protection was not established at this location.Sound level meter readings were made on February 27, 1975 at 9:12 a.m., 94?96 dBA;9:13 a.m., 96?98 dBA; 9:39 a.m., 97?99 dBA; 10:24 a.m., 96?98 dBA; 11:00 a.m.,97?99 dBA; 11:34 a.m., 96?99 dBA (C?3 p. 28). The employee-operator did nottestify. The CO stated that the operator?s shift ran from 8 a.m. to 4 p.m. with30 minutes for lunch, 30 minutes for cleanup and a 10-minute break (Tr. 221).It has been established that many of the men move about the plant during theday and that the CO did not make time records at each station or operation. Noevidence appears that he remained with the operator at the Natco Reamer duringthe entire period covered by the sound level meter readings and in spite of thehigh dBA readings, it cannot be assumed that the noise levels remained constantbetween readings i.e., between 9:13 and 10:24 a.m., between 10:24 and 11:00a.m. and between 11:00 and 11:34 a.m. See,Sun Shipbuilding, supra; Secretary v.Weyerhaeuser Company, 10 OSAHRC 791 (1974).??????????? Recapitulating,the complainant has failed to establish a need for protection pursuant to thestandard in the following locations: Items a, d, e, h, j, l, x, ee, gg, jj and11. Need for protection has been established in the following locations: Itemsb, e, f, g, i, k, m, n, o, p, q, r, s, t, u, v, w, y, z, aa, bb, dd, ee, f, hh,ii, kk.??????????? Applyingthe quite recent approval by the Review Commission of a determination that thecomplainant has the burden of showing that Bethlehem failed to utilizeavailable feasible engineering and administrative controls to reduce theoffending sound levels, Secretary v. ReynoldsMetals Company, Docket No. 1551 (February 25, 1976), the testimony on thisphase of the dispute reveals the following.??????????? Complainant?sexpert made an inspection and examination of Bethlehem?s facility on July 9,1975 (Tr. 370). He did not examine Items e, m, r, u, w, y, bb, ee, ff, gg, hhand 11, which were not in operation, and he offered no opinion on thefeasibility of engineering or administrative controls as to these items (Tr.398).[22] He stated that hisexamination indicated that no feasible controls are possible in connection withItems f, k, l, p, t, v and aa (Tr. 402; C?10). It was his opinion that feasibleengineering controls were possible in locations Item a, b, c, d, g, h, i, j, n,o, q, s, x, z, cc, dd, ii, jj and kk (Tr. 371). Of these, as we have foundsupra, Items a, d, h, j, x, ee and jj failed of the necessary proof toestablish a need for protection. We have left for determination as to theavailability of feasible engineering controls, the conditions found in Items b,c, g, i, n, o, q, s, z, dd, ii and kk, which will be treated in that order.??????????? Itemb, Automatic Bundling unit: Complainant?s expert was of the opinion that asound-absorption lined partial enclosure could be provided over the top of theconveyor; that the parts on the conveyor should be spaced to prevent clanking(Tr. 374). However, he was not aware at the time of his inspection of thislocation on July 9, 1975 that the employee-operators rotate to the ear press(Item j) which cannot be brought into compliance. He conceded that theemployees? exposure should be considered over a longer period than one day,perhaps for a week, and, while he felt that the automatic bundling machine canbe brought into compliance with the standard by means of the engineeringcontrols he recommends, he expressed concern over the fact that the employeesrotate to the ear press which cannot be brought into compliance (Tr. 423?428).Bethlehem?s engineering expert agreed that the engineering controls recommendedby the complainant?s expert would in fact reduce the noise level at Item b,with some criticism that a glass partition would interfere with the need forgood visibility by the operator (Tr. 613?615; 643). Its sound expert agreed thatthe recommended engineering controls would reduce the noise level at Item b to89?91 dBA. However, he maintained that the major source of noise was the earpress at Item j and that ear protection would continue to be needed (Tr. 748).??????????? Inthis posture of the proofs, I cannot conclude that the complainant hasestablished that the engineering controls which he recommends will bring theautomatic bundling unit into compliance with the requirements of Table g,?16. See Secretary v. Crescent Wharf &Warehouse Co., 2 OSAHRC 1318 (1973); Secretaryv. Armor Elevator Company, Inc., 5 OSAHRC 560 (1973); Secretary v. Bechtel Corp., 12 OSAHRC 744 (1974). However, I do notconsider that the complainant, having established that feasible engineeringcontrols are available for utilization by Bethlehem, is under the duty ofadditionally proving that such utilization will ?reduce sound levels within thelevels of Table G?16.? cf. Secretary v.B. F. Goodrich Co., 9 OSAHRC 44 (1974); Secretaryv. Turner Company, Docket No. 3635 (February 18, 1975, on review). The B. F. Goodrich case supra, on appeal to the 6th circuit court of appeals, has beenremanded to the Review Commission with the instruction that additional evidencebe taken:For a more definite statement whether thefeasible controls ordered will bring the noise level to or below 90 decibelsduring an 8 hour day as required by 1910.95 Table G?16 so that individualprotective devices will not be required, andif not, the extent to which feasible controls ordered will reduce the noiselevel. (Emphasis added).\u00a0??????????? NoReview Commission majority has spoken to this issue.[23] I am also mindful that ina number of cases, not yet determined on review, trial judges have held thatthe standard requires the Secretary to establish that there are engineeringand\/or administrative controls available for utilization which are capable ofreducing noise exposure levels within the levels of Table G?16.[24]??????????? Itseems to me that the language used by the Congress in subparagraph (b)(1) ofthe standard contains no ambiguity and must be applied as written. It should benoted that the word ?feasible? which modifies administrative or engineeringcontrols, appears only in the first sentence. In this posture the adjectivemust be used in its meaning of practicable; capable of being carried out inaction; capable of being used. See, TheOxford Universal Dictionary, Oxford University Press, Third Ed. 1955 p.682; 1560. H. W. Fowler in his ADictionary of Modern English Usage, Second Ed. 1965, in speaking of theword ?feasible? says, at p. 191:Its proper sense is practicable, ?capableof being done, accomplished, or carried out.????????????? Applyingthis meaning the controls which must be utilized by the employer must first befound to be practicable and capable of being carried out. The second sentenceof the subparagraph provides merely that in the event the controls described inthe first sentence do not reduce the sound level within the levels of TableG?16 the employer shall provide personal protective equipment. No reference ismade to nor is there any indication that the second sentence excludes thefirst. Rather they must be read as written, without interpolating a nonexistentalternative, i.e., where the utilized practicable controls do not bring thesound levels down to conform, personal protective equipment must be provided.As noted supra, the 6th circuit court of appeals on remand, requestedadditional evidence not only that the ordered controls would bring the noiselevel to or below 90 decibels but, if not, to what extent they would reduce thenoise level.??????????? Ifind therefore, that in connection with Item b, the complainant has establishedthat engineering controls are feasible but that the said controls will notreduce the sound levels within the levels of Table G?16. However, I find thatsuch controls as are described by complainant?s expert will reduce the soundlevels from a range of 91?98 dBA to a range of 89?91 dBA, which is asubstantial reduction and that such engineering controls should be and they arehereby so ordered.??????????? Itemc, Snag grinder #249: Complainant?s expert recommended a partial enclosure; thelining of drums which receive parts, with sound damping material and providingthe drums with covers which will dampen the sounds. He could not state thatthese controls would bring the location into compliance and suggested that theemployee-operator be removed from the vicinity while the parts are dropped intothe hopper (Tr. 374?376; 428?430). Bethlehem?s engineer expert as well as itssound expert, agreed that the hopper and the parts drums can be lined withacoustical material but that only a partial screen is feasible since theoperator needs to be open on three sides and that such a barrier must beportable (Tr. 617?620; 645; 671; 766; 794?795). However, none of these expertscould state that the location would be brought into compliance because of theexistence of background noises nor is there any indication that the recommendedcontrols will result in a substantial reduction in the noise levels (Tr. 428;767?768). I cannot find, in this instance, that the recommended controls arepracticable in the absence of a showing that they will have any appreciableeffect.??????????? Itemg, Press Q?151: Complainant?s expert, here recommended a partial enclosure; thedamping of the conveyor with sound absorbing material, a slot, lined with soundabsorbing material, through which parts could be introduced into the press andlining the parts chute with sound absorbent material. In his opinion these controlswould bring the noise level within the levels of Table G?16 and produce areduction of 10 dBA. In addition, controlling the air jets would allow areduction of 10?15 dBA (Tr. 377?378; 433?435). Bethlehem?s engineer expertagreed that the machine could be quieted by modification and the noise of thecounterweight eliminated by replacing the leather connection. Both he andBethlehem?s sound expert were of the opinion that a barrier or enclosure wouldbe ineffective but both approved the remaining suggestions offered by thecomplainant. They recommended enclosing the noisy parts; lining the chutes; andsilencing the counterweight. The sound expert was of the opinion that thesechanges would reduce the noise level from 98 dBA to 92 dBA (Tr. 621?624; 649?651;753). I am not persuaded that the complainant has established thepracticability of the partial enclosure. The remaining suggestions, asindicated above, will produce a substantial reduction in the noise level andare hereby ordered.??????????? Itemi, Press Q 153: Complainant?s expert recommended enclosing and lining thehopper with sound absorbent material. He conceded that he did not make a studyof noise from the adjacent machines and was not certain that these controlswould bring the noise level at this location to the level of Table G?16 (Tr.379?389; 437?438). Bethlehem?s engineer suggested a two-foot opening to allowthe passage of 18-inch plates. (Tr. 624?652). Its sound expert agreed with thecomplainant?s recommendations and with the two-foot opening. In his opinion,these controls would produce a reduction of 5 dBA (Tr. 755?756). The reductionhere is substantial and the recommendations outlined herein with a two-footopening are hereby ordered.??????????? Itemu, Wire Drawer #14: Complainant?s expert recommended a partial enclosure withwindows to enable the operator to watch the spool (high hat) and the wiredrawer. The roof of the enclosure is to be lined with sound absorbent materialand the speed of the fall of the wire on the spool is to be reduced by tippingthe spool to slow the slide of the wire or altering the supply to horizontalfeed instead of vertical. The spool should be covered with noise absorbentmaterial. He did not furnish an estimate of the reduction in noise thesecontrols would produce but was of the opinion that they would reduce the soundlevel to within the levels of Table G?16 (Tr. 380?382; 389; 440?442).Bethlehem?s engineer agreed that a resilient bottom plate would be practicaland that the rack can be silenced. He stated however, that tilting the spoolwould make the work much more difficult and that because of the confined spacethe recommended enclosure would not be practicable (Tr. 628?633; 655?656).Bethlehem?s sound expert agreed with the engineer that a partial enclosure wasnot practicable. He also agreed with the sound absorbent lining suggestions andadded that the wire drawer gears could be enclosed. He sided with the engineerthat the spool could not be tilted. However, he was of the opinion that withoutthe partial enclosure and tilting of the spool, the remaining suggestedcontrols would reduce the sound level to within 90 dBA and suggested a furtherstudy, after the controls are instituted, to determine whether personalprotective equipment would be needed (Tr. 759?760). It is noted thatcomplainant?s expert also recommended a further study (Tr. 442) and under thecircumstances herein it is ordered that the controls suggested herein, with theexception of the partial enclosure and the tilting of the spool, be installedand that installation of the partial enclosure and tilting the spool bedeferred pending the result of a further study of noise levels.??????????? Itemo, Pickling room: Complainant?s expert and the sound expert for Bethlehem arein accord that the fans in the room should be slowed down which will reduce thenoise completely and bring the sound levels within the levels of Table G?16(Tr. 382; 389; 745). It is so ordered.??????????? Itemq, Drill press #17?82: Complainant?s expert recommended air mufflers and theerection of a sheet metal or masonry barrier, treated with noise dampingmaterial, the screen to be 10 to 12 feet high and 20 feet long. The barrier isto be erected so as to protect against noise emanating from Item r, Sucker rodheader #127. He estimated that this barrier would produce a reduction of 15 to20 dBA and bring the location into compliance with Table G?16 (Tr. 382?383;442?443; 461). Both of Bethlehem?s experts agreed that air mufflers should beinstalled but considered the screen impractical since in order to be of anyeffect against noises emanating from furnaces across the aisle the screen wouldhave to be located across the aisle; the barrier would have to be 54 feet longto screen the three offending furnaces and there is not sufficient space toafford room for the screen and access to the furnaces. In addition there isother background noise, and the barrier would not reduce the sound level towithin the levels of the Table G?16 (Tr. 633?634; 657?658; 762?763). It isclear that air nozzles should be installed upon the furnaces but I cannotconclude, under the circumstances here, that the barrier is a feasible, i.e.,practicable engineering control. It is so ordered.??????????? Items, Coupling tapper #218: Complainant?s expert recommended an enclosure whichwould allow the levers of the machine to remain accessible. He suggested that adamping device, such as covers the gear shift in an automobile be installed andhe was of the opinion that this control would bring the location intocompliance (Tr. 383?384; 389; 444, 462). Bethlehem?s engineer did not thinkthere was room to install the gear box cover and expressed concern that theseal would wear out. Its sound expert was of the opinion that the device wouldnot reduce the sound level to 90 dBA (Tr. 634?635; 664?665; 674; 765?766). Ifind that the suggested control recommended by complainant is feasible and willproduce a substantial reduction in the sound level and it is so ordered.??????????? Itemz, Alligator shear #60: Complainant?s expert recommended that the machine beenclosed; that the air noise from adjacent machines be reduced; that the flameflywheel gear and clutch be enclosed and that the chutes be lined with sounddamping material. He was of the opinion that these controls would producecompliance (Tr. 385; 389; 448?449; 776). Bethlehem?s sound expert agreed thatthese controls are feasible and would serve to reduce idling noise to 90 dBAalthough he did not believe that the sound level would be reduced to within thelevels of Table G?16 (Tr. 776). I find therefore, that the controls recommendedare feasible, will produce a substantial reduction in the sound level and it isso ordered.??????????? Itemdd, Parts former #66: Complainant?s expert recommended an enclosure for theoperator and was of the opinion that the employee need not spend more than 2 or3 hours outside the enclosure. He was not certain that the engineering andadministrative controls suggested would bring the location into compliance (Tr.386; 389; 450?452). Bethlehem?s sound expert thought that the enclosure, installingpoint of operation guards and damp lining the chutes and hoppers would producea reduction of 5 dBA (Tr. 782). I find that the engineering and administrativecontrols described hereinabove are feasible and will produce a substantialreduction in the noise level at this location and it is so ordered.??????????? Itemii, Conomatic #257: Complainant?s expert recommended lining the chutes on theoutside with noise damping material. He was of the opinion that this controlwould reduce the noise level by 5 dBA but he offered no opinion that thislocation could be brought into compliance (Tr. 386?387; 389; 452). Bethlehem?ssound expert, although he had not made a sound study, did not think thatcovering the chutes would reduce the noise level nor was he certain that enclosingthe burring machine (Conomatic #257) would be practical and effective (Tr. 788;805; 807; 811?812; 814). I find that complainant?s recommendation is feasibleand will result in a substantial reduction in the noise level. It is soordered.??????????? Itemkk, Gridley machine #224: Complainant?s expert recommended an enclosure of thegear area and the use of silent stock tubes. He considered that these controlswould result in a reduction of 10 dBA (Tr. 387; 390; 453). Bethlehem?s noiseexpert agreed with these recommendations but thought the noise reduction wouldbe 2 or 3 dBA (Tr. 746?747). I find that the recommended controls are feasibleand will produce a substantial reduction in the noise level and it is soordered.??????????? Theonly testimony in the record touching the time within which abatement should beaccomplished by Bethlehem is that of complainant?s expert which appears attranscript page 391, wherein be estimates that two years would be a reasonableperiod to be allowed for that purpose. Bethlehem took no issue with thisstatement and offered no evidence in this connection and I find that two yearsis a reasonable period in which Bethlehem shall accomplish the engineering andadministrative controls ordered hereinabove and it is so ordered.??????????? Thecitation herein also alleges that the impermissible sound level exposures towhich Bethlehem?s employees were exposed ?were not limited in accordance withthe requirements? of 29 CFR 1910.95(b)(1). As has been found hereinabove,exposure of Bethlehem?s employees to sound levels exceeding those shown inTable G?16 has been established at locations Item b, c, f, g, i, k, m, n, o, p,q, r, s, t, u, v, w, y, z, aa, bb, dd, ee, ff, hh, ii and kk. At the time ofthe inspection herein, employees at the following location were wearing earprotection furnished by Bethlehem: Item b (Tr. 48;80); Item c (Tr. 54); Item f(Tr. 56; 95); Item g (Tr. 192); Item i (Tr. 195); Item k (C?2 p. 2, line 5);Item m (Tr. 103); Item n (Tr. 108); Item o (Tr. 115); Item p (Tr. 120); Item q(Tr. 123); Item r (Tr. 136, 201 C?2, p. 3, line 3); Item s (Tr. 129; C?2 p. 3,line 4); Item t (Tr. 141; C?2 p. 3, line 1); Item u (Tr. 150; C?2 p. 4, line9); Item w (C?2 c. 4, line 2); Item y (C?2 p. 4, line 5); Item z (Tr. 208; C?2p. 4 line 8); Item aa (C?2 p. 4, line 10); Item bb, part of the time (Tr. 347;C?2 p. 5, line 1); Item dd (Tr. 162?163; Exh. R?1); Item ee (C?2 p. 5, line 2);Item ff (Tr. 176?177; Exh. R?2; C?2 p. 5, line 3); Item hh (C?2 p. 6, line 1);Item ii (Tr. 181; C?2 p. 6, line 2) and Item kk (Tr. 186; C?2 p. 6, line 4). AtItem v, the employee admitted he had been directed to wear ear protection butthat he dislikes to do so since he perspires and the ear plugs irritate him,they fall out to the dirty floor and he will not put them back into his ears.He said, however, that Bethlehem permits him to use cotton which he prefers(Tr. 155?156; 157). Furthermore, there is evidence that wearing ear protectionwas directed by management and enforced (Tr. 85; 89?90; 111; 120; 150, 169,175) and under the circumstances developed here I cannot find that theallegation that personal protective equipment was not provided and used, hasbeen sustained.??????????? Bethlehem?smotion to reconsider the order for inspection dated May 28, 1975, is denied forthe reasons therein stated (Br. Point IV, pp. 37?43).??????????? Bethlehem?smotion to reconsider the action taken in connection with the subpoenae ducestecum (Exh. C?11 id.; C?12 id.; Br. Point V, pp. 44?47) is denied for thereasons stated in the order dated August 8, 1975, and on the record on August14, 1975 (Tr. 480?482).??????????? Bethlehem?smotion to suppress the testimony of Ostergaard, complainant?s expert, underFederal Rule of Evidence 408 (Br. Point VI, pp. 48?52) is denied. There is noshowing that Bethlehem?s offer to compromise was used as evidence to prove theallegations of the citation. The fact that Ostergaard agreed with Bethlehem?sexperts with regard to the feasibility of a number of engineering controlsdesigned to control noise emissions, which appeared in its offer of compromise,was not offered as evidence by the complainant, it was developed by Bethlehem?scounsel on cross-examination and therefore falls outside of Rule 408.??????????? Bethlehem?smotions to dismiss (Br. Point VII, pp. 53?55; Point IX, pp. 59?64 and Point X,pp. 65?81) have been considered and disposed of by determinations madehereinabove affecting the Items referred to therein.??????????? Mydetermination to exclude Bethlehem?s Exhibit R?7, id. is reaffirmed for thereasons expressed (Tr. 825?826).?So ordered.?DAVID H. HARRISJudge, OSAHRCDated: April 12, 1976?Hyattsville, Maryland\u00a0\u00a0* CommissionerBarnako disqualified himself from consideration of this case.[1] The noisestandard provides, in pertinent part:?1910.95 Occupational noise exposure.(a)Protection against the effects of noise exposure shall be provided when thesound levels exceed those shown in Table G?16 when measured on the A scale of astandard sound level meter at slow response. When noise levels are determinedby octave band analysis, the equivalent A-weighted sound levels may bedetermined as follows:[FigureG?9 is not reproduced](b)(1)When employees are subjected to sound exceeding those listed in Table G?16,feasible administrative or engineering controls shall be utilized. If suchcontrols fail to reduce sound levels within the levels of Table G?16, personalprotective equipment shall be provided and used to reduce sound levels withinthe levels of the table.(2)If the variations in noise level involve maxima at intervals of 1 second orless, it is to be considered continuous.(3)In all cases where the sound levels exceed the values shown herein, acontinuing, effective hearing conservation program shall be administered.Table G?16?Permissible Noise Exposures Duration per day, hours Sound level dBA slow response 8 90 6 92 4 95 3 97 2 100 1 ? 102 1 105 ? 110 ? 115 [footnote omitted] \u00a0 \u00a0[2] The Secretarytakes exception only to the judge?s vacating of four subitems of the citation.Respondent takes exception only to the judge?s affirmance of eleven othersubitems. Notwithstanding former Commissioner Moran?s general direction forreview, neither party has challenged the judge?s disposition of the remaining23 subitems of the citation at issue. There is also no compelling publicinterest warranting further review of those portions of the judge?s decisionthat relate solely to those 23 subitems. Therefore, those portions of thejudge?s decision will not be considered on review. See Water Works Installation Corp., 76 OSAHRC 61\/B8, 4 BNA OSHC1339, 1976?77 CCH OSHD ? 20, 780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21\/A2, 3 BNA OSHC 2032, 1975?76 CCHOSHD ?20,428 (No. 9507, 1976). Those portions of the decision are accorded thesignificance of an unreviewed judge?s decision. See Leone Constr. Co., 76 OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975?76 CCHOSHD ? 20,387 (No. 4090, 1976), appeal withdrawn, No. 76?4070 (2d Cir. May 17,1976).[3] Complianceofficer Renner testified that he obtained dosimeter readings for employees at37 of the 38 cited locations. Renner explained that the dosimeter readingsindicated the percentage of daily permissible noise exposure for the period anemployee actually wore the dosimeter. He projected this data to determine noiseexposure for the entire time an employee was assigned to the location (lesstime off). These dosimeter readings were supplemented by sound level meterreadings at the 37 locations.[4] Ostergaardconcluded that no feasible controls were available to reduce noise levels atseven locations. He made no conclusion about 12 locations because the machinesat those locations were not operating on the day of his discovery inspection.[5] The judgedetermined that suggested controls for the disputed locations should beimplemented if they would produce a ?substantial reduction? in noise. Thisdetermination correctly anticipated the Commission?s analysis of technologicalfeasibility in Continental Can Co.,76 OSAHRC 109\/A2, 4 BNA OSHC 1541, 1976?77 CCH OSHD ? 21,009 (Nos. 3973 Et al.,1976), appeal withdrawn, No. 76?3229(9th Cir. April 26, 1977).[6] Section 12(g) ofthe Act, 29 U.S.C. ? 661(f), provides in pertinent part that ?[u]nless theCommission has adopted a different rule, its proceedings shall be in accordancewith the Federal Rules of Civil Procedure.? See also Commission Rule ofProcedure 2(b), 29 C.F.R. ? 2200.2(b).[7] Respondent?sletter to the Secretary included copies of articles written and addresses givenby Toothman.[8] Commission Rule55 provides for the issuance of subpoenas and for petitions to revoke or modifyas follows:(a)Any member of the Commission shall on the application of any party directed tothe Commission, forthwith issue subpoenas requiring the attendance andtestimony of witnesses and the production of any evidence, including relevantbooks, records, correspondence, or documents, in his possession or under hiscontrol. Applications for subpoenas, if filed subsequent to the assignment ofthe case to a judge, shall be filed with the judge. A judge shall grant theapplication on behalf of any member of the Commission. Applications forsubpoenas may be made ex parte. The subpoena shall show on its face the nameand address of the party at whose request the subpoena was issued.(b)Any person served with a subpoena, whether ad testificandum or duces tecum,shall, within 5 days after the date of service of the subpena upon him, move inwriting to revoke or modify the subpena if he does not intend to comply. Allmotions to revoke or modify shall be served on the party at whose request thesubpoena was issued. The judge or the Commission, as the case may be, shallrevoke or modify the subpoena if in its opinion the evidence whose production isrequired does not relate to any matter under investigation or in question inthe proceedings or the subpoena does not describe with sufficient particularitythe evidence whose production is required, or if for any other reasonsufficient in law the subpoena is otherwise invalid. [emphasis added] The judgeor the Commission, as the case may be, shall make a simple statement ofprocedural or other grounds for the ruling on the motion to revoke or modify.The motion to revoke or modify, any answer filed thereto, and any rulingthereon shall become a part of the record.[9] Federal Rule ofEvidence 705 provides:Disclosureof Facts or Data Underlying Expert Opinion. The expert may testify in terms ofopinion or inference and give his reasons therefor without prior disclosure ofthe underlying facts or data, unless the court requires otherwise. The expertmay in any event be required to disclose the underlying facts or data oncross-examination.Commission Rule of Procedure 72, 29C.F.R. ? 2200.72, provides that ?[h]earings before the Commission and itsjudges shall be in accordance with ? 554 of Title 5 U.S.C. and insofar aspracticable shall be governed by the rules of evidence applicable in the UnitedStates District Courts.?[10] Federal Rule ofEvidence 408 provides:Compromiseand Offers to Compromise.Evidenceof (1) furnishing or offering or promising to furnish, or (2) accepting oroffering or promising to accept, a valuable consideration in compromising orattempting to compromise a claim which was disputed as to either validity oramount, is not admissible to prove liability for or invalidity of the claim orits amount. Evidence of conduct or statements made in compromise negotiationsis likewise not admissible. This rule does not require the exclusion of anyevidence otherwise discoverable merely because it is presented in the course ofcompromise negotiations. This rule also does not require exclusion when the evidenceis offered for another purpose, such as proving bias or prejudice of a witness,negating a contention of undue delay, or proving an effort to obstruct acriminal investigation or prosecution.[11] We note thatRespondent fails to cite any authority for its argument that the testimony of awitness allegedly based on information provided in a compromise offer is aviolation of Rule 408. On the contrary, the rule by its terms ?does not requirethe exclusion of any evidence otherwise discoverable merely because it ispresented in the course of compromise negotiations.?[12] As a result ofhis inspection, compliance officer Renner prepared Exhibits C?2, C?3 and C?4,which are essentially records of sound level and dosimeter readings at the 38cited locations. Photographs taken by Renner were marked as Exhibit C?5. Renneridentified and, in his testimony, referred to Exhibit C?1, a dosimeteroperating manual.[13] The Jencks Act,18 U.S.C. ? 3500, is the legislative embodiment of the rule announced in Jencksv. United States, supra. The National Labor Relations Board adopted a similarrule providing that statements of government witnesses need not be disclosed inits proceedings until the witness has testified for the government. 29 C.F.R. ?102.118(a), (b)(1). The Jencks Act approach has been held to apply toadministrative proceedings. HarveyAluminum, Inc. v. NLRB, 335 F.2d 749 (9th Cir. 1964); Great Lakes Airlines, Inc. v. CAB, 291 F.2d 354 (9th Cir. 1961).[14] Under the workproduct doctrine of Federal Rule of Civil Procedure 26(b)(3), documentsprepared in anticipation of litigation or for trial are not disclosable beforethe hearing absent a showing of ?substantial need? and inability to obtain theinformation by other means without undue hardship.[15] In view of a respondent?scompelling need to effectively cross-examine a witness, when a respondent seeksa witness statement for cross-examination purposes, the request should bepermitted at hearing even if no prehearing request was made. In this case,Respondent only learned of the document in question on cross-examination of thecompliance officer. It is well-settled that a party may move for production ofdocuments at hearing without a prehearing request, particularly if thedocuments are in the hearing room. See, e.g., General Motors Acceptance Corp. v. American Ins. Co., 50 F.2d 803(5th Cir. 1931). cert. denied, 284U.S. 676 (1931). Given the preparation of the memorandum here at the directionof the Secretary?s counsel, a prehearing request for disclosure probably wouldhave been futile. Thus Respondent?s request was properly made at hearing.[16] The Secretaryretained Exhibit C?8 rather than including it for the record. Consequently, wecannot independently assess its relation to the compliance officer?s testimony.Even if we could examine the document, however, we could not speculate onRespondent?s use of it for impeachment, corroboration, and other purposes.[17] Judge Harris hasretired from the Commission since the issuance of his decision in this case.[18] This case wastried and decided before the Commission issued its decision in Continental CanCo., supra, requiring the Secretary to prove the economic feasibility ofengineering or administrative noise controls under section 1910.95. Under suchcircumstances, it is general Commission policy to afford the parties anopportunity to present additional evidence bearing on the issue in light of theintervening precedent. SeeTruland-Elliot, A Joint Venture, 77 OSAHRC 163\/A7, 4 BNA OSHC 1455, 1976?77CCH OSHD ?20,908 (No. 11259, 1976).[19] Employees,engaged in the following operations, were subjected to sound levels whichexceeded the permissible exposures listed in Table G?16 of this section, andtheir exposures were not limited in accordance with the requirements of 29 CFR1910.95(a) and\/or (b)(1). The sound levels were obtained at the hearing zonesof the employees. Employees were subjected to sound levels for which the noiseexposure fraction Cn\/Tn (see Table G?16, Note #1) exceeded 1.0.a) roll hand, ten-inch mill; b)automatic bundling unit?Mine Roof Products Department, Factory Division #2; c)snag grinder #249?Nos. 1 and 2 forge, Factory Division #2; d) furnace shearman,ten-inch millFactory Division #1: e) shear#02?11 and thread roller #08?309?Mine Roof Products Department; f) header#131?Mine Roof Products Department; g) press #Q?151?Mine Roof ProductsDepartment; h) press #Q?153?Mine Roof Products Department; i) press #Q?153(take-of and bundler)?Mine Roof Products Department; j) ear press #11?48?Mine RoofProducts Department; k) spike machine #17 (heater)?Cold Rivet & Spike Shop;l) spike machine #19?Cold Rivet & Spike Shop; m) hand spike machine#24?Cold Rivet & Spike Shop; n) wire drawer #14?Cold River & SpikeShop; o) pickling room?Cold Rivet & Spike Shop; p) cold rivet headers andcold rivet spike machines (die setter operator)?Cold Rivet & Spike ShopFactory Division #2: q) drill press#17?82?Rod & Nut Shop; r) sucker rod header #127?Rod & Not [sic] Shop;s) coupling tapper #218?Rod & Nut Shop; t) nut former #09?58?Rod & NutShop; u) burring machine #10?62?Tract Bolt Warehouse; v) hand header #159(heater)?Nos. 1 and 2 forge; w) heavy duty #160 (heater)?Nos. 1 and 2 forge; x)press #148?nos. Nos. 1 and 2 forge; y) Billet shear #132?Nos. 1 and 2 forge; z)alligator shear #60?Nos. 1 and 2 forge; aa) automatic bolt maker #99?Nos. 1 and2 forgeFactory Division #3: bb) square nutmachines?Cold Nut Department; cc) nut former #62?Cold Nut Department; dd) partsformer #66?Cold Nut Department; ee) blot maker #54?Cold Bolt Department; ff)thread rollers?Cold Bolt Department; gg) tapper #221?Hot Nut FinishingDepartment; hh) press #22?MSP Department; ii) Conomatic #257?MSP Department;jj) press #132?MSP Department; kk) Gridley machine #224?MSP Department; ll) Natcoreamer #139?MSP Department[20] Short TermAbatement initial temporary abatement is to be provided by short rangeadministrative controls and\/or personal protective equipment.Detailed plan this detailed planfor the implementation of the longterm program is to include feasibleengineering and\/or administrative controls, and a time schedule of proposedaction. Upon approval, this plan is to be implemented in accordance with itsprovisions.Complete Abatement the date bywhich feasible engineering and\/or administrative controls must be implementedto completely eliminate the employees? exposure to noise levels in excess ofthose listed in Table G?16.Until final abatement is achieved,written progress reports should be submitted to the Area Director by the fifthday of each month.[21] 29 CFR 1926.52(a)is similar in language to the standard herein except that no reference is madeto octave band analysis and a corresponding compensating curve plot as in fig.C?9.[22] The transcriptmakes reference to Item oo. There is no Item oo and the reference should be toItem 11.[23] Secretary v. Anchor Hocking Corp.,Docket No. 3783, affirmed by non-precedential action on July 22, 1975.[24] Del Monte Corp., Docket No. 11865 (June4, 1975) on review; Pabst Brewing Co.,Docket No. 13068 (August 25, 1975) onreview; C. F. & I. Steel Corp.,16 OSAHRC 45 (1975) on review; International Paper Co., 12 OSAHRC 243(1974) final order.”