“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77-0926 BORG-WARNER CORPORATION, MORSE CHAIN DIVISION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 26, 1979ORDER??????????? TheSecretary?s motion dated July 16, 1979, to withdraw his Petition forDiscretionary Review is Granted. The Judge?s Decision is affirmed and isaccorded the precedential value of an unreviewed Judge?s Decision, pursuant tothe Commission?s Decision in Potlatch Corp., ?? OSAHRC ??, 7 BNA OSHC1370, 1979 CCH OSHD para. 23,549 (No. 77?3589, 1979) and cases cited therein.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: JUL 26, 1979\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77-926 BORG-WARNER CORPORATION, MORSE CHAIN DIVISION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 March 7, 1979DECISION & ORDERAPPEARANCES:Francis V. LaRuffa, Regional Solicitor,U.S. Department of Labor, New York, New York, By: Anthony Ginetto, Esq., ForComplainant\u00a0Dorothy J. Howell, Atty., LegalDepartment, Borg-Warner Corporation, Chicago, Illinois, For Respondent\u00a0Statement of Proceedings:??????????? Byletter dated March 25, 1977, Borg-Warner Corporation, Morse Chain Division ofIthaca, New York (respondent) contested1 a citation by the Occupational Safetyand Health Administration of the U.S. Department of Labor (complainant or OSHA)issued[1] March 8, 1977, alleging afailure to reduce sound levels by engineering or administrative controls at twoareas of its plant in Ithaca in violation of 29 CFR ? 1910.95(b)(1).[2] The alleged violation ischaracterized as nonserious and was to be abated with a three-step plan overthe course of approximately one year.??????????? Complaintand answer were filed[3] and respondent admits thejurisdictional facts alleged in the complaint that it is an employer havingemployees and it affects interstate commerce. I conclude that the authority ofthe Commission to resolve this controversy is proper.[4] The matter finally came onfor hearing[5]with both sides represented by counsel. No affected employee or hisrepresentative elected party status after due notice (Transcript, Tr., 4?5 and168).??????????? Theonly issue to be decided is the feasibility of engineering controls (Tr. 3). Personalprotective equipment (ear muffs) are worn by employees (Tr. 23) and this is aneffective control of the excessive noise (Tr. 62). Complainant has notadvocated the use of administrative controls or offered any proof as to thismeans.The Evidence, Findings and Conclusions:??????????? Department507: Charles W. Timber has been the manager of respondent?s automotive division(Department 507) for 11 years and he described its role as the dominantsupplier of timing and transmission chains to the automotive industry (Tr.235). Department 507 contains 12 45-ton, high speed Minster presses whichoperate at 600 to 900 strokes per minute. Fifty thousand pounds of timing chainlinks are produced per day during two shifts consuming 100,000 pounds of steel(Tr. 240?241). Exhibit R?6A is a layout diagram of these presses and shows thesix of them at the west side of the department. Another six are placed on theeast side in the same configuration as those on the exhibit. (Tr. 243 and 275)??????????? Thereis no dispute that the noise level in this department exceeds the permissiblelevels in Table G?16 of the standard to which the six operators for the 12presses are exposed. Matthew Finucane, complainant?s compliance officer,measured the noise range and found it to be between 78 and 107 dBA (Tr. 19 and20?22). He recommended the issuance of a nonserious6 citation because of theuse by employees of personal protective equipment against the effects of thenoise (Tr. 23?24). Complainant?s expert, Norman L. Meyerson (Tr. 42?43 and hisqualifications, Exhibit C?3) measured the sound levels at locations frequentedby the operators (Tr. 52) and found the range to be between 103.5 and 111.[6] dBA (Tr. 53). The noise ishighest at the press?s stamping point and radiates from the entire machine tocreate a uniform background value. These presses are well maintained and?beautiful running? with nothing inherently wrong with them. (Tr. 73) Mr.Timber testified that the noise level was 110 dBA (Tr. 237 as corrected at 258and 261).??????????? Thesolution, according to Mr. Meyerson, is to construct an enclosure around eachof the two lines of six presses. At the west end line, this would consist oftwo walls of sound absorbent material (Tr. 74?78). The east end line wouldrequire a third wall to perfect the enclosure (Tr. 80). This method isengineeringly feasible and would cost between nine and $11,000 per enclosure(Tr. 85?86). These costs could be met by respondent, the parties stipulated(Tr. 159). The noise could be attenuated to 89 dBA outside of the enclosuresdepending on the openings in the walls (Tr. 81?84).??????????? Theonly obstruction to the operator which Mr. Meyerson saw is opening either ofthe two doors in the enclosure servicing each press. The operator could watchthe operation through windows in the doors and the stock would be fed through aslot in the enclosure?s wall. (Tr. 75, 76?78 and Figure 32 attached to thewitness? statement showing his sketch of the enclosure) Going into theenclosure to check on the die and the press?s performance or to move theproduct from the press to the conveyor belt along the wall would add two orthree minutes to his work. The press is mostly automatic but the operator hasto watch it to assure its normal functioning and its lubrication level. (Tr.77) The only production loss which Mr. Meyerson saw could occur would bebecause the operator has to open the door and the enclosure would have to beremoved for maintenance of the press (Tr. 123?125). But in this department, thecontrol of the noise by the enclosures is feasible both engineeringly andeconomically (Tr. 115).??????????? Oncross-examination, Mr. Meyerson testified that if he were retained byrespondent to devise an abatement plan, he would require a month or two ofstudy in the plant; then two weeks to prepare his report; and then within eightmonths the equipment required could be ordered and installed (Tr. 141?143). Buton the inspection here, Mr. Meyerson was at the plant for only two hours (Tr.143); he observed how the presses operated but did not discuss with any ofrespondent?s employees how the machines were operated or serviced (Tr.143?144); and he has only an idea of how complete the automation is (Tr. 144).He is not an expert in punch press operation (Tr. 145). At 111.5 dBA, thepermitted exposure (by Table G?16) is 15 minutes and, therefore, if theoperator enters the proposed enclosure five or six times a shift, a violationof the standard would occur (Tr. 152). With technology to be developed on thepresses in terms of automation, the operator would spend less time inside ofthe enclosure (Tr. 152?153).??????????? ButMr. Timber enumerated the eight tasks each operator typically must perform andthe time required to do these. These require two hours and forty-five minutes.(Tr. 241) Since each operator runs two presses (Tr. 249), he will spend 5.5hours of his eight hour shift inside the enclosure (Tr. 276?277). Since 1968,respondent has been attempting to devise controls to eliminate the operators?exposure. In that year, a remote monitoring system, which would isolate theoperator, failed but it remains under study and development. If successful itwould be respondent?s trade secret. (Tr. 236?237 and Mr. Curran Tr. 228?229) In1970, inertia blocks were installed to absorb press vibration at a cost of$58,000. No airborne reduction of the noise was realized. (Tr. 237)??????????? In1971, a full enclosure was built around one press for $5,000 (Tr. 237). A 20percent reduction in production efficiency resulted for routine operations suchas changing dies or loading stock. (Tr. 238) This booth was in use for aboutone month then (Tr. 263) and it had a door, windows and slots to feed the stockthrough (Tr. 258?259). But malfunctioning of the press is frequent andunpredictable at 600 to 900 strokes per minute (Tr. 238). The presses do notautomatically shut down on a jam (Tr. 259). Quick response by the operator isessential to avoid damage to dies which can cost up to $10,000 apiece andrepresents an investment of $1 million plantwide (Tr. 238 and 260). Theenclosure also creates safety problems in that its walls become contaminatedwith oil and the press?s motor overheats (Tr. 233?239).??????????? Thisenclosure is comparable to Mr. Meyerson?s recommendation for abatement (Tr.239) but with it: (1) the operators remain overexposed to excessive noiseinside; (2) his estimates are but 15 percent of present cost estimates; (3)operators cannot perform if they are isolated from the press by any barrier;and (4) the enclosure would have to be disassembled to perform maintenancerequiring a forklift truck which occurs about once a month (Tr. 238, 242 and275). All the tasks done by an operator when the enclosure was tested are donetoday (Tr. 273?274). One enclosure for six presses would not relieve theseproblems (Tr. 267).??????????? Thereafterin efforts to control the excessive noise, respondent in 1972 erected a soundbooth for the operator from the materials used on the dismantled pressenclosure for $1,000. But this limited the operator?s access to the press andprevented his seeing malfunctions. (Tr. 239) In fact, the operators complainedbecause they could not monitor the presses (Tr. 265).??????????? Mr.Timber outlined these efforts to control the noise since 1973 and theseincluded dynamically balancing the presses costing hundreds of thousands ofdollars (Tr. 239?240); the installation of air mounts in 1975 for more than$27,000; and the use of plastic barriers in 1976, but the noise remains high(Tr. 240).??????????? Complainant,in his brief, argues that respondent has shown that the proposed enclosureswould merely inconvenience the operators but this does not prove impossibilitywhich is a valid defense. In essence, respondent argues that nothing would begained by adopting complainant?s proposal. The operator would be exposed much thesame as he is now and the enclosure would be impracticable because ofproduction losses and the potential of major damage to expensive dies.??????????? Ifind that the two enclosures recommended by the complainant to surround the sixpresses each on the east and west sides of Department 507 are neithertechnologically nor economically feasible when placed in contraposition to (1)the minimal benefits achieved and (2) all of the costs associated with theseenclosures. Within the enclosure, there is no reduction from the present noiselevels and the operator would be within it for at least 70 percent of his shifttime. Further, the six operators of the 12 presses would be continuallyentering the enclosures ruining their required integrity so that even when onewould be outside he would be exposed to the high noise levels emanating from anopen door to an operating press.[7]??????????? Theundisputed fact is that?at this stage of the industry?s knowledge?there doesnot exist any technological method of quieting these well-running presses andthat enclosure or isolation of the operator are the only means of protectinghim but for the ear muffs which are required to be worn. But I find thatcomplainant?s proposal regarding engineering controls would not accomplishthis.??????????? Basedon this finding, any expenditure of funds must be economically not feasible.And the relevant expense do not include merely the cost of construction of theenclosure. Because of the interference the enclosure creates, the speed of themachine at 600 to 900 strokes per minute, and the necessity for constantobservance, the risk of damage to a $10,000 die is high. This, I find, thenbecomes a relevant cost and even complainant?s cost estimate of $11,000 isalmost doubled if even one die is damaged. These costs measured against thepractically nonexistent benefits result in a waste of money.[8]??????????? Iconclude that since complainant has failed to prove that the noisecontrolsproposed for Department 507 are in anywise feasible, respondent is not inviolation of 29 CFR ?\u00a01910.95(b)(1) as cited. This is not to say thatrespondent may reduce its efforts to separate the excessive noise from itsoperators, for as the technology develops, respondent may well find itself inviolation.[9] This part of Item 2 of thecitation is vacated in the order below and complainant?s motion for partialsummary judgment (Tr. 10?13) is denied.??????????? Department110: Richard C. Curran is respondent?s executive vice president and director ofmanufacturing (Tr. 223). In Department 110 industrial chains are produced, bothroller and inverted tooth chains. There are 24 punch press operators (Tr. 225)working with 65 presses which are not all the same with assignments varyingfrom one man per press to three presses to one operator on two shifts (Tr.231?232). The presses operate at 400 to 500 strokes per minute and an operatormust shut one down if it jams (Tr. 231). Complainant?s compliance officermeasured the noise level in this department to be between a low of 70 dBA tohigh of 105?107 dBA (Tr. 19?20). There are numerous presses here and six arethe subject of the citation. He found six operators to be over-exposed tonoise, but he estimates because of the location of the workers that 18employees are subject to excessive levels. (Tr. 37?38)??????????? DuringMr. Meyerson?s two-hour inspection (not entirely spent in this department) (Tr.143), only one press was being operated. There were 12 across the aisle and acluster of five large machines. There were numerous presses and this roomopened onto other press rooms. (Tr. 65) His measurements at the operating pressat its reel, alongside and rear showed a range of 101.5 to 104.5 dBA affectingthe operator and other operators at the next machine (Tr. 66?67). And a manbetween two operating presses is exposed to a further increase of three dBA?s,to 106 (Tr. 68).??????????? Mr.Meyerson?s recommendation here is to replace the existing guarding structureson these presses with acoustical shields. This would place a barrier betweenthe operator and the die or press area of the machine. Complainant?s photos,Exhibits 6A to 6E, show the grating guards on the machines which protect theoperator?s hands and which would be replaced. (Tr. 87?90) Much of the noiseemanates from this die area and there should be at least one barrier on its workingside. The operators? sides on adjacent machines face each other and thebarriers would affect a reduction of six dBA?s there. (Tr. 91?92 and 99) A mandirectly behind a barrier within a foot of it realizes about an eight dBAreduction from the die area, but as he backs away the reduction is less becausethe noise comes from the press?s frame on all sides (Tr. 92). A reduction ofthree dBA occurs further away from the die area between presses (Tr. 98?99).The barriers would affect no reduction at a press?s reel area (Tr. 99) and anybenefit is conditional on the size on an opening and its location (Tr. 92). Ata later point, Mr. Meyerson testified that only a minimal portion of a press?stotal noise output comes from the die area or actual shearing point (Tr. 108).??????????? Thepresent guards should be replaced to enclose a larger area and each pressshould be so enclosed without a top to prevent direct radiation to the ears(Tr. 93?95). This could achieve a reduction of six to nine dBA?s and create nointerference with an operator?s duties since the machines are mostly automaticwith dies changed about twice a day. Windows in the barrier would allowobservation. (Tr. 96?97) A reduction of the noise level by three decibels meansa man may work one-and-a-half to two hours more under Table G?16. But thebarriers will not reduce the level to below that table?s permissible level.(Tr. 100?101) It offers some benefit to the operator when he is close to thenoise source (Tr. 101).??????????? Thecost of these barriers depends on the press and could range from $3 to $4 asquare foot for acoustical curtains (Tr. 108?109) to $7 to $8 per square footfor barriers on larger machines (Tr. 109?113). Mr. Meyerson estimates the costof these barriers on press 10621 which he saw in operation to be $3,600 (Tr.109). And if a top were put on, the cost would be increased by one-fifth (Tr.110). He does not recommend total enclosures for this department, which doexist, because these would be very costly, would cause too great a loss inproduction time, and would create ventilation problems (Tr. 107?108). But thesewould be the only method of reducing the noise level to below that in TableG?16 (Tr. 114 and 118).??????????? Oncross-examination, Mr. Meyerson stated that a two to three decibel reductionwith the panel or barrier would occur only at the operator?s position andbeyond that place it would do nothing (Tr. 134). The panel is only a control atthe die area and does not affect the noise radiating from the entire machine(Tr. 135). Nothing would be accomplished for the rest of the shop (Tr. 137).??????????? DouglasKent is a laborer, chairman of the union, and works as a grinder in Department109 which is on the floor above Department 110 and he can hear the latter?snoise at his station. When he passes through Department 110, he can feel thevibration of a machine?s noise. (Tr. 169, 171 and 172?173)??????????? Dr.Richard D. Strunk is respondent?s manager, acoustics and noise control sectionat the Ray C. Ingersoll Research Center and Exhibit R?3 is a resume of hisqualifications (Tr. 203A?204). His expertise in this field was unquestioned.When all presses are running, he measured a noise level of 111 dBA (Tr. 192).His counter to Mr. Meyerson?s proposal for Department 110 is based on: (1) anoperator is exposed to excessive noise from only his press and others do notsignificantly affect this; and (2) adding sound reducing materials will notreduce the noise because the sound energy radiates from all the vibratingsurfaces of the press and a panel reduces the noise between two and threedecibels only from the die area to about 108 dBA but the reduction must be by21 decibels to meet Table G?16. The only method which would accomplish thatreduction is a total enclosure of a press which is not recommended. (Tr.178?179 and 186) If an operator?s press is shut down, noise from others stillexceed the limits of the table (Tr. 213).??????????? Dr.Strunk does not consider a reduction of three dBA to be significant because itrepresents only a factor of two, but to bring down the level by 21 dBA is afactor of 126 (Tr. 214). But he did admit that the three dBA reduction issignificant in the sense that it reduces air pressure by one-half (Tr. 188 and217?218). His tests show that reductions range from .5 dBA to a maximum ofthree dBA depending on the operator?s position when a panel covers the diearea. He measured the noise levels at five operator?s positions around twopresses. Without protective panels the range was from 102.5 to 108 dBAdepending on the position; and with the panels in place covering the die area,the levels dropped to a range of 100 to 106.5 dBA with no reduction greaterthan 3.5 decibels (Tr. 188?190).??????????? Mr.Curran testified that acoustical panels in this department would cost $1,600per press or well over $100,000 for a reduction of three dBA (Tr. 227?228). Inhis opinion, there are no technically or economically feasible means of control(Tr. 228). Because of severe competition in this field, costs cannot berecouped through price increase and the last of these occurred in September1974 and April 1978. Rather productivity must be increased. (Tr. 225)??????????? Complainantargues that since (1) the undisputed reduction of three decibels is significantas found by the Commission,[10] (2) this reduction istechnologically feasible by replacing machine guards with acoustical materials,and (3) that since 24 employees, the punch press operators will benefit with nopress costing more than $4,000 to equip, the cost outlay is justified and,therefore, the method is economically feasible. It was stipulated thatrespondent could meet these expenses.??????????? Respondentcontends that there exists no feasible means to bring the noise level in thisdepartment to 90 dBA where a man may work for eight hours without hearingprotection. Further, the attenuations as measured by Dr. Strunk showing amaximum reduction of 3.5 dBA with the panel installed permits no essentialincrease in allowable exposure time under Table G?16. The present 102.5 to 108dBA exposure would lessen to 102 to 106.5 dBA (Strunk, Tr. 188) but the tableallows no increased time under the latter as permitted by the former amount.Still further, when considering the carry-over noise from other machines, eventhe three dBA reduction is wiped out. Hence, the expenditure of well over$100,000 buys no significant protection.[11] Thus, complainant?sproposal for this department is neither technically nor economically feasible.??????????? Thequestion presented is whether replacing machine guards with acousticalmaterials to effect a reduction of a maximum of 3.5 decibels at certainpositions around a press is significant enough to warrant an expenditure ofalmost $1,600 per press or over $100,000 for all of the presses in Department110. There is no dispute that such an installation will benefit an operator onlywhen he is at certain points within 7.5 feet of a machine and beyond that nobenefit is achieved by the panels; and, at all events, the noise levels remainin excess of that dictated by Table G?16 affecting the 24 operators there.??????????? Ifind that this reduction is not sufficiently significant even though anattenuation of three decibels halves the air pressure because (1) it occursonly at certain places at the press but the operator is not always there andwhen elsewhere he is exposed to the higher levels; that is, the time spent atthese places may even amount to an exposure allowed by Table G?16 if theoperator were not required to be at the constantly higher noise levelpositions; (2) all employees in this department are required to wear personal protectiveequipment and complainant offered no evidence that respondent?s hearingconservation program is less than effective;[12] and (3) the excessivenoise level radiates from the entire press as testified to by Dr. Strunk and asMr. Meyerson admitted that the die area contributes only minimally.??????????? Thus,I find that while installation of these panels is technologically feasible, thebenefits that would be achieved are not sufficiently significant to warrant theexpense and are, therefore, not economically feasible. Thus, this case differssubstantially from Secretary v. Louisiana-Pacific Corporation,77\/187\/A2, BNA 5 OSHD 1995, CCH ?22261, where the Commission found that therecommendation to reduce noise levels from the 122 dBA level to 90 dBA wasneither novel nor complex at a cost of no more than $5,000. But whencomplexities enter, these may not constitute a preponderance of the evidence tomerit affirmation of a citation. See Secretary v. Continental Can Co., Inc.,76\/109\/A2, BNA 4 OSHD 1541, CCH ?21009. There the Commission ruled:Even if we only consider whether it isfeasible to enclose only the cited machines at the three California plants, wereach the same conclusion. The cost to develop and install enclosures for thesemachines is $494,000. The exposure of approximately 125 employees would bereduced to within G?16 limits, and some lesser reduction would be experiencedby an unspecified number of other employees. These figures, standing alone, arenot sufficient to establish by a preponderance of the evidence that engineeringcontrols are economically feasible.???????????? Iconclude that complainant has failed to prove that controls for the noiselevels in Department 110 are economically feasible and the order below vacatesthis part of Item 2 of the citation. Order:??????????? Basedon the foregoing and after considering the parties? briefs and post-hearingproposals which, to the extent shown, are adopted otherwise they are rejectedas not supported by fact or precedent, it is ordered:??????????? 1.That Item 2, parts (a) and (b) of the citation issued March 3, 1977, alleging anonserious violation of 29 CFR ? 1910.95(b)(1) is vacated; and??????????? 2.Complainant?s motion for partial summary judgment dealing with part (a) of Item2 is denied.?DAVID J. KNIGHTJudge, OSHRCDated: March 7, 1979?Boston, Massachusetts[1] Under theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651, et seq.,citations are issued following an inspection [? 658(a)] and may be contestedwithin 15 working days [?\u00a0659(a)].[2] This standardrequires:1910.95Occupational Noise Exposure(a). . .(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.? \u00a0TABLE G?16?PERMISSIBLE NOISE EXPOSURE Duration per day, hours Sound level dBA slow response \u00a0 8 \u00a0 90 \u00a0 6 \u00a0 92 \u00a0 4 \u00a0 95 \u00a0 3 \u00a0 97 \u00a0 2 \u00a0 100 \u00a0 1 1\/2 \u00a0 102 \u00a0 1 \u00a0 105 \u00a0 1\/2 \u00a0 110 \u00a0 1\/4 or less \u00a0 115 \u00a0 \u00a0[3] The Complaint wasfiled on April 20, 1977, and the answer on September 6, 1977. The interim wasfilled with motions to dismiss the complaint, etc., followed by motions todismiss the notice of contest.[4] See 29 CFR ?? 652(3),(5) and 653(a).[5] At a prehearingconference on March 9, 1978, which both parties? experts attended, a tentativesettlement of the dispute was reached. Complainant did not accept this uponpresentation by his counsel. Thereafter motions for summary judgment werefiled. Hearing was held on June 16, 1978 (complainant?s case), and July 11,1978 (respondent?s case). Briefs were filed by September 15, 1978.[6] Nonserious meansan absence of a substantial probability of death or serious physical harm resultingfrom the condition cited. 29 U.S.C. ?? 666(j) and (c).[7] Cf., Secretaryv. RMI Company, 78\/31\/C8, BNA 6 OSHD 1523, CCH ?22674, where it was foundthat enclosures would protect employees for three hours of a shift and thecitation was affirmed. No measure of protection is found in the instant case.[8] A cost-benefitratio must be considered. See, Turner Co., Division of Olin Corp. v.Secretary of Labor, 561 F.2d 82 (1977) at 85.[9] Even if theabatement methods developed are respondent?s trade secrets, it may not beprotected from further citations as the technology advances. Cf., Secretaryv. Owens-Illinois, Inc., OSHRC Docket No. 77?648 (Dec. 20, 1978).[10] See Secretaryv. Continental Can Co., Inc., 76\/109\/A2, BNA 4 OSHD 1541, CCH ?21009,footnotes 8 and 13.[11] Respondent relieson Turner, above at note 8, to show the decisiveness of the cost ofbenefit ratio.[12] In ContinentalCan, above at note 10, there is an indication that personal protectiveequipment is not always effective. See 76\/109\/at B2, BNA 4 OSHD at 1545, CCH(1976?1977) 21009 at page 25, 255. No such indication appears in this case.”