“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77-3266 DRUTH PACKAGING CORPORATION, ? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 August 20, 1980DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge David H. Harris is before the Commissionfor review pursuant to section 12(j), 29 U.S.C. ? 661(i), of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). In hisdecision, Judge Harris affirmed a citation alleging that the Respondent, DruthPackaging Corporation, failed to comply with 29 C.F.R. ??\u00a01910.95(a) and1910.95(b)(1) in that (A) employees working at corrugators numbers 1 and 2 werenot protected against the effects of noise at impermissible levels and (B) the Respondentfailed to utilize feasible administrative or engineering controls to reducethose sound levels. The judge also implicitly adopted the four-step abatementplan proposed by the Secretary of Labor (?the Secretary?).[1] Specifically, he entered afinding ?that the dates for abatement of each Step in the citation, as amended,are reasonable . . .? The Respondent petitioned for review of the judge?sdecision and Commissioner Barnako directed review ?on the issues raised by thepetition.???????????? Weconclude that the primary issue before us is whether the judge erred inordering the Respondent to comply with the abatement dates proposed by theSecretary in his citation as amended.[2] We further conclude thatthe judge?s abatement order is based on a finding, supra, that is not supportedby the evidence of record. Accordingly, we reverse that part of the judge?sdecision that affirmed the Secretary?s proposed abatement dates and remand thiscase for the limited purpose of establishing an appropriate order.I??????????? Afterreceiving the citation alleging noncompliance with 29 C.F.R. ?? 1910.95(a) and1910.95(b)(1), the Respondent filed the following notice of contest:Please be advised that we are contestingsteps 2, 3 and 4 of . . . [the initial citation]. After a pretty thoroughinvestigation we find that there are no solutions available to the corrugationindustry at this time, other than hearing protectors, which we have madeavailable to our employees 18 months ago.?The Secretary thereafter filed his complaint and theRespondent filed its answer in the form of a letter. The answer essentiallyreiterated the statements of the notice of contest and included theacknowledgement that ?[i]n our original letter of contest . . . we only contestedsteps 2, 3, & 4 of . . . [the initial citation].?[3]??????????? Atthe hearing, the Secretary presented the testimony of two witnesses: Ernest J.Giangreco, the compliance officer who conducted the inspection that resulted inthe instant proceeding, and Norman L. Meyerson, an acoustical engineer whoprepared a report for the Secretary (Exhibit P?5) on the feasibility ofengineering controls to reduce the noise levels at the Respondent?s workplace.These witnesses presented testimony and other evidence relating to all elementsof the Secretary?s burden of proving noncompliance with sections 1910.95(a) and1910.95(b)(1). See generally, Samson Paper Bag Co., 80 OSAHRC ??, 8 BNAOSHC 1515, 1980 CCH OSHD ? 24,555 (No. 76?222, 1980) [? 1910.95(b)(1)]; BoiseCascade Corp., Composite Can Div., 77 OSAHRC 43\/A2, 5 BNA OSHC 1242,1977?78 CCH OSHD ? 21,714 (No. 802, 1977), pet. filed, No. 77?2201 (9thCir. May 31, 1977) [? 1910.95(a)]. The Respondent?s representative, see note 3supra, presented several objections to various aspects of the Secretary?s casebut made no effort to introduce evidence in rebuttal of any part of that case.??????????? Atthe outset of his decision, Judge Harris observed that, ?[w]hile it may beargued that it was the respondent?s intention to contest only the abatementprogram set out in the citation, the matter was tried as though the contestwere a full one.? Accordingly, he proceeded to discuss and to rule upon thecitation?s allegation that the Respondent failed to comply with sections1910.95(a) and 1910.95(b)(1). Based on his examination of the record, heentered the following findings:??????????? (1)?each of the employees referred to was exposed for a period in excess of sixhours to noise which far exceeded the 92 dBA permitted in the table at G?16?;[4]??????????? (2)?[a]lthough hearing protection was available if requested . . . the respondentdid not have . . . a program for hearing conservation for the protection of hisemployees? and hearing protection was not worn;??????????? (3)the Secretary?s expert witness testified that feasible controls?specifically,either rigid or non-rigid barriers around the two corrugators and roofssuspended a few inches over the barriers?are available; that the cost of these controlswould be approximately $7600 for the rigid barrier or approximately $2600 forthe non-rigid type; and that the controls ?would produce a reduction of between3 and 8 dBA?; and??????????? ?(4) ?[t]he respondent introduced no evidencewhich would indicate . . . that the engineering controls described bycomplainant?s expert were not feasible.???????????? ?Inlight of the foregoing,? Judge Harris concluded, ?I have no difficulty infinding that the respondent herein was in violation of the standard at 29C.F.R. 1910.95(a) and .95(b)(1) as charged by the citation.?[5]??????????? TheRespondent thereafter filed a one-page petition for review of the judge?sdecision. This petition was divided into two parts: (1) a statement of thatpart of the decision and order to which exception was taken and (2) a statementof reasons for which the exception was taken. In the first part only oneexception was stated, i. e., an exception to the judge?s finding that theabatement dates in the citation as amended were reasonable. In the second part,two arguments were stated in support of the exception. First, the Respondentargued that the acoustical engineer had given no testimony indicating ?that theperiod for abatement . . . was in any way reasonable for the construction ofthe sound barriers he recommended.? Second, the Respondent contended that, ?atbest expectation, the barriers described would not end the alleged violation,thus making them not feasible.? The Respondent based this argument on evidenceit cited indicating that the projected 3?8 dBA reduction if the recommendedcontrols were implemented would not be sufficient to reduce the noise levels atits workplace within permissible limits.??????????? Asindicated previously, the direction for review granted the Respondent?spetition. Neither party responded in any manner to the direction for review.II??????????? Theinitial matter to be resolved is a determination of the issues before us onreview. This proceeding was initiated by an ambiguous notice of contest. Theprimary intention of the employer in its notice of contest, as stated by JudgeHarris, was ?to contest . . . the abatement program set out in the citation.?Although not clearly formulated, the Respondent?s secondary intention appearsto have been to contest the Secretary?s allegation that the Respondent failedto implement feasible engineering controls to reduce the noise levels. TheRespondent?s answer merely reinforces our conclusions. It does not indicate anintent to expand the scope of the Respondent?s contest. At the hearing, theRespondent made no attempt to rebut the Secretary?s evidence as to itsnoncompliance with the cited standards. In particular, as noted by JudgeHarris, it ?introduced no evidence which would indicate . . . that theengineering controls described by complainant?s expert were not feasible.? Inits petition for review, the Respondent again focused on the abatement programset out in the citation as amended, identifying that part of the judge?sdecision to which it took exception and limiting its statement of exceptions tothe judge?s finding as to the reasonableness of the abatement dates.Significantly, the Respondent did not take exception to the judge?s finding(and conclusion) ?that the respondent herein was in violation of the standardat 29 C.F.R. 1910.95(a) and .95(b)(1) as charged in the citation?, despite thefact that that finding immediately preceded the finding to which it did takeexception.??????????? TheRespondent?s petition did include a single, discrete argument relating to thejudge?s conclusion that it failed to comply with 29 C.F.R. ? 1910.95(b)(1).However, the limited issue raised is one that is controlled by Commissionprecedent and therefore easily resolved.[6]??????????? Basedon this record, we conclude that the merits of the Secretary?s amended citationare not otherwise at issue before us. See note 2 and 6 supra. The onlyremaining issue on review is whether the judge erred in affirming theSecretary?s proposed abatement dates. Accordingly, we affirm that part of JudgeHarris? decision and order that affirmed the citation?s allegation ofnoncompliance with 29 C.F.R. ?? 1910.95(a) and 1910.95(b)(1).III??????????? TheRespondent argues in effect that the judge erred in finding that the abatementdates set forth in the amended citation were reasonable because the acousticalexpert presented no evidence indicating that the controls he recommended couldbe implemented within the time period permitted under the amended citation. Weagree in part. The Respondent?s argument raises a question as to whether it hasbeen ordered to implement the controls found feasible by the judge, see note 5supra, or ordered to comply with the four-step abatement plan set forth in thecitation, see note 1 supra and accompanying text. We conclude that Judge Harrishas ordered the Respondent to comply with the Secretary?s proposed abatementplan. Nevertheless, our review of the record indicates that there is noevidence as to the amount of time that would be reasonable for the Respondentto complete each of the four steps in the citation?s abatement program. Accordingly,we conclude that the judge erred in finding that the abatement dates proposedin the citation as amended were reasonable and that his finding must bereversed.??????????? JudgeHarris did not cite to any evidence of record in support of his finding thatthe abatement dates for each step in the citation as amended were reasonable.However, he did state in his decision that ?[t]he respondent introduced noevidence which would indicate that the period for abatement of the allegedviolations herein was in any way unreasonable . . ..? Accordingly, we concludethat the judge?s finding was based not on the record evidence but rather on amisconception of the respective burdens of proof of the parties. When anemployer contests a citation, it may place in issue the reasonableness of theabatement date specified in the citation, as the Respondent has clearly done inthis case. When the reasonableness of the abatement date is in issue, theburden of proving reasonableness lies with the Secretary. See GilbertManufacturing Co., 79 OSAHRC 68\/A2, 7 BNA OSHC 1611, 1979 CCH OSHD ?23, 782(No. 76?4719, 1979) (lead, concurring, and dissenting opinions). Because theSecretary in this case failed to prove that the abatement dates in the citationas amended were reasonable, the judge erred in finding that they werereasonable.IV??????????? Forthe reasons stated above, the judge?s decision and order is affirmed in partand reversed in part. The judge?s affirmance of the allegation that theRespondent failed to comply with 29 C.F.R. ?? 1910.95(a) and 1910.95(b)(1) isaffirmed. The judge?s determination that the abatement dates set forth in thecitation as amended were reasonable is reversed on the basis of this record.Because there is no evidence of record that would permit us to develop anappropriate order, this case is remanded to the chief judge[7] for assignment to anadministrative law judge for the purpose of conducting further proceedingsconsistent with this opinion, including the taking of additional evidence ifnecessary.?SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: AUG 20, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77-3266 DRUTH PACKAGING CORPORATION, ? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 July 17, 1978DECISIONAppearances:Anthony C. Ginetto, Esq.Francis V. LaRuffa, Regional SolicitorUnited States Department of Labor1515 Broadway, Room 3555New York, New York 10036Attorney for Complainant\u00a0Charles P. Schmidt, Plant ManagerGeneral Fibre DivisionDruth Packaging Corporation73?33 Woodhaven BoulevardGlendale, New York 11227\u00a0Harris, Judge??????????? Aninspection of the respondent?s manufacturing premises was conducted onSeptember 15, 1977, following which a citation was issued to it on September20, 1977 pursuant to Section 658(a) of the Occupational Safety and Health Actof 1970 (the Act).??????????? Thecitation alleged a violation of the standard at 29 CFR 1910.95(a) in that:Protection against the effects of noisewas not provided for employee(s) exposed to sound levels which exceeded thoselisted in Table G?16 of subpart G of 29 CFR part 1910:Northcentral side of building, atcorrugators number 1 and 2.\u00a0??????????? Thestandard provides:(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 . . ..TableG?16?Permissible Noise Exposures:\u00a0 Duration per day, hours \u00a0 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\/2 102 \u00a0 1 105 \u00a0 1\/2 110 \u00a0 1\/4 or less 115 \u00a0 \u00a0??????????? Thecitation also alleged a violation of the standard at 29 CFR 1910.95(b)(1) inthat:Employee(s) were subjected to sound levelsexceeding those listed in Table G?16 of subpart G of 29 CFR part 1910 andfeasible administrative or engineering controls were not utilized to reducesound levels within those of the table:Northcentral side of building, atcorrugators number 1 and 2.???????????? Thisstandard provides:When employees are subjected to sound exceedingthose listed in Table G?16, feasible administrative or engineering controlsshall be utilized. If such controls fail to reduce sound levels within thelevels of Table G?16, personal protective equipment shall be provided and usedto reduce sound levels within the levels of the table.???????????? Thecitation required that the respondent abate the charged violation as follows:Step 1Effective personal hearing protectionshall be provided and used by employee(s) as an interim protective measure onor before October 4, 1977.\u00a0Step 2A written, detailed schedule of abatement,consistent with the complete abatement (final) date shall be submitted to theArea Director. This schedule shall include target dates for items such as:hiring of identified engineering consultants; completion of engineering studiesand preliminary surveys; discussions with OSHA and decision on optimallyfeasible abatement program to be implemented; ordering of equipment andmaterial and completion of design phase; selection of contractor; submission ofregular progress reports. Step 2 was to be completed on or before October 20,1977.?Step 3Feasible engineering controls and\/oradministrative controls if no engineering controls are feasible, shall bedetermined on or before November 18, 1977.?Step 4Abatement shall be completed at which timefeasible administrative and\/or engineering controls shall be implemented andemployee(s) shall not be subjected to sound levels exceeding those listed inTable G?16 on or before November 18, 1977.???????????? OnSeptember 28, 1977, the citation was amended to require the completion of steps3 and 4 by March 20, 1978.??????????? Therespondent filed a Notice of Contest pursuant to Section 659(a) of the Act onOctober 6, 1977 wherein it stated:. . . we are contesting steps 2, 3 and 4of Citation Number G 3211 066 issued September 20, 1977. . . .\u00a0??????????? Thecomplaint, filed on October 28, 1977, reiterates the allegations in thecitations, and restates the abatement steps set out in the citation, omittinghowever the date by which final abatement of each step it to be accomplished(para. 5). The Respondent, answering the complaint in letter form, reiteratesits intention to contest only the steps of abatement required in the citationand in paragraph 2 of his letter which is dated November 4, 1977 and filed onNovember 7, 1977, alleges that it has purchased new hearing protection and hasnow mandated its employees in the use of this equipment.??????????? Whileit may be argued that it was the respondent?s intention to contest only the abatementprogram set out in the citation, the matter was tried as though the contestwere a full one.??????????? Druth?sPackaging Corporation, a corporation organized under the laws of the State ofIllinois, with its principal office at 130 North Branch Street in Chicago,Illinois, the respondent, operates a corrugated paper board manufacturingpremises at 73?33 Woodhaven Boulevard in Glendale, Long Island, as its GeneralFibre Division.??????????? Thepaper board manufactured at these premises is sold not only in New York Statebut to customers located outside New York State. There are approximately 55daily employees at this manufacturing premises who are employed in the shoparea and the sales of fibre board manufactured at the General Fibre Divisionapproximate a million dollars a year. All of the machines involved in thecitation are owned by the respondent and the employees are members of Local 107Hyman Gordon Pulp & Paper Sulfite Workers, Albee Square, Brooklyn (Tr.5?11).??????????? Onthe date of inspection the compliance officer (CO) spent the entire workingday, i.e., 7:00 o?clock in the morning until 3:30 p.m., in the plant inquestion in the conduct of his inspection. During the course of this inspectionhe took a number of sound level meter (SLM) readings at points located withinthe manufacturing premises, indicated on a rough hand-drawn chart of theinterior of the premises made by the CO (Exh. P?3) and at the points indicatedon the Exhibit, took a series of SLM readings at each of the indicatedlocations which are numbered from 1 to 7 shown on Exhibit P?3. The SLM readingsat locations 1, 2, and 3, as shown on Exhibit P?3, were taken at 7:00 o?clock;7:30; 8:00; 8:30; 9:00; 9:30; 10:00; 10:49; 11:00; 11:30; 12:00; 12:30; 1:00;1:30; 2:00; 2:30; 3:00; and 3:30 o?clock. The SLM readings at locations 4, 5, 6and 7 were taken at the following times, 7:50; 8:30; 9:00; 9:30; 10:00; 10:40;11:00; 11:30; 12:00; 12:30; 1:00; 1:30; 2:00; 2:30; 3:00; and 3:30 o?clock(Exh. P?2B). Reference to Exhibit P?3 indicates that locations 1, 2 and 7 areat corrugating machines, location 3 is at chopper No. 17, location 5 is at theshop office and location 6 is in the general storage area of the plant. Ourconcern is with the readings at locations 1, 2, 3, and 4. At location No. 1, acorrugating machine, the SLM readings beginning with 7:00 o?clock range from 81dBA rising to 98 dBA during the hour from two to three and then dropping to 80dBA at 3:30 p.m.. At location No. 2, another corrugating machine, the readingsbeginning with 7:00 o?clock in the morning range from 83 dBA rising through 101dBA during the hour from two to three and also dropping to 80 dBA at 3:30 p.m..At location No. 4, which is a point between the two corrugating machines justreferred to, the SLM readings at 7:50 begin with 92 dBA and rise through acrest of 96 dBA during the hour from two to three and then drop to 76 dBA at3:30 p.m. (Exh. P?2B).??????????? Inaddition to the SLM readings, the CO attached a dosimeter microphone to each ofthree employees who were employed in and about the machines at locations No. 1,2 and 3. The microphone was attached as close to the person?s ear as possible,being attached to the lapel at shoulder level, while the instrument itself waseither carried in the shirt pocket of the individual or attached at belt level(Tr. 20). Depending upon the length of time the dosimeter is worn, it producesa time weighted average resulting in a decibel read-out for the period duringwhich the dosimeter was worn by the employee in question (Tr. 27).??????????? Theemployees in question were engaged in their duties in and about the machinesdescribed for the entire work day beginning with seven o?clock in the morningand ending at three thirty in the afternoon. Each received a thirty minutebreak for lunch, a fifteen minute interval in the morning, and a fifteen minuteinterval in the afternoon, for coffee. Deducting an additional thirty minutesto cover washroom time during the day, although there was no testimonyconcerning this period of time, each of the employees in question was exposedto the noise present in this manufacturing plant, in and about their stations,for a period of approximately six hours and thirty minutes. Reference to theSLM recordings as shown in Exhibit P?2B clearly indicates that each of the employeesreferred to was exposed for a period in excess of six hours to noise which farexceeded the 92 dBA permitted in the table at G?16.[8]??????????? Althoughhearing protection was available if requested, according to the testimony ofthe CO, the respondent did not have nor did he maintain a program for hearingconservation for the protection of his employees. This is evident by aexamination of the photographs, Exhibits P?6A through P?6E. Reference tophotograph No. P?6A shows a number of employees without hearing aid protection.Two of the employees are shown with hearing conservation protection however itis not in place. Exhibit P?61 also shows several employees who are not wearinghearing protection although the operator of the machine is shown with hearingprotection in place.??????????? Theacoustical engineer, who was produced and testified for the complainant, madean inspection of the respondent?s plant on January 19, 1978. On that day,according to him, the noise at corrugator No. 1 ranged from 92 to 98 dBA and ata point between corrugator No. 1 and corrugator No. 2 the noise reached 98 dBA(Tr. 52; 58?59). The sound expert?s report, Exhibit P?5, was received inevidence without objection (Tr. 62). He testified that feasible controls todeaden the noise produced by the machines in question are available. Herecommended that barriers be erected between each machine to absorb the noise.He stated that barriers constructed of lead and fiberglass should be erectedaround each of these machines. These barriers were to be 12 feet high on thesides and 10 feet wide by 9 feet long. He submitted a cost estimate which wasalso received in evidence without objection and marked Exhibit P?7, accordingto which the cost of the engineering controls which he recommended would beapproximately $7,600.00, if the rigid type of barrier was used. If thenon-rigid type was used each enclosure would cost approximately $2,600.00. Thiscost would include suspending a roof over each machine a few inches above thetops of the barriers. In his opinion this would produce a reduction of between3 and 8 dBA (Tr. 62; 65; 67?82).??????????? Theonly witness to appear and testify for the respondent was Mr. Charles P.Schmidt, the Plant Manager at the Long Island facility. It was his opinion thatthe complainant?s expert had not spent enough time in the plant to be able toarrive at a reasonably accurate conclusion (Tr. 103). He testified that he hadconsulted with acoustical experts in connection with the installation ofengineering controls and although these experts had recommended the erecting ofenclosures they had not furnished him with cost estimates. (Tr. 104?105). Healso stated that he realized that his employees should wear ear protection andthey are now ordered to wear the same (Tr. 110).??????????? Therespondent introduced no evidence which would indicate that the period forabatement of the alleged violations herein was in any way unreasonable or thatthe engineering controls described by complainant?s expert were not feasible.??????????? Inthe light of the foregoing I have no difficulty in finding that the respondentherein was in violation of the standard at 29 CFR 1910.95(a) and .95(b)(1) ascharged in the citation. I also find that the dates for abatement of each Stepin the citation, as amended, are reasonable, to wit; Step 2, October 20, 1977,Steps 3 and 4, March 20, 1978.?SO ORDERED.?DAVID H. HARRISJUDGE, OSHRCDated: July 17, 1978?New York, New York[1] The four steps inthe abatement plan were set forth in the citation as follows:Step1Effectivepersonal hearing protection shall be provided and used by employee(s) as aninterim protective measure.Step2Awritten, detailed schedule of abatement, consistent with the complete abatement(final) date shall be submitted to the Area Director. This schedule shallinclude target dates for items such as: hiring of identified engineeringconsultants; completion of engineering studies and preliminary surveys;discussions with OSHA and decision on optimally feasible abatement program tobe implemented; ordering of equipment and material and completion of designphase; selection of contractor; submission of regular progress reports.Step3Feasibleengineering controls and\/or administrative controls if no engineering controlsare feasible, shall be determined.Step4Abatementshall be completed at which time feasible administrative and\/or engineeringcontrols shall be implemented and employee(s) shall not be subjected to soundlevels exceeding those listed in Table G?16.Thecitation also stated dates by which each step of the abatement process was tobe completed. Approximately one week after the initial citation was issued, theSecretary issued an amended citation in which he extended the period of timeallowed for completion of steps 3 and 4.[2] Any issue neitherraised in a petition for review nor directed for review by an individual memberupon his own motion, see Commission Rule of Procedure 92(c), 44 Fed. Reg.70,106 at 70,111 (1979), to be codified in 29 C.F.R. ? 2200.92 [formerly Rule91a(c), 29 C.F.R. ?\u00a02200.91a(c)], is not before the Commission on review.[3] Neither theRespondent?s notice of contest nor its answer made any reference to the amendedcitation, despite the fact that the amended citation was issued by theSecretary and presumably received by the Respondent prior to the filing of thenotice of contest.We note that theRespondent has apparently appeared throughout this proceeding without the aidof legal counsel. Thus, its plant manager, Charles P. Schmidt, filed the noticeof contest and the answer, represented the Respondent at the hearing, andappeared as the Respondent?s only witness at the hearing. The Respondent?spetition for review was filed by its office manager, Mark Phillips.[4] The judge citedwith approval evidence indicating that the employees were exposed to thefollowing noise levels (time weighted average): Manuel Calderon, 98 dBA; FredWheeler, 99.4 dBA; Patricia Byrd, 92 dBA. He specifically found that ?each ofthe employees in question was exposed to the noise present in thismanufacturing plant, in and about their stations, for a period of approximatelysix hours and thirty minutes.?[5] Although the judgetechnically erred in failing to enter formal findings on the issue, weinterpret his decision as finding that the engineering controls suggested bythe Secretary?s expert witness were both technologically and economicallyfeasible. See Samson Paper Bag Co., supra.[6] As we noted above,the Respondent?s petition contains a brief statement that the barrierssuggested by the Secretary?s expert witness are ?not feasible.? The statementwas made in the context of a secondary argument in support of the Respondent?scontention that the judge erred in finding that the abatement dates werereasonable. It was not presented as a separate exception to the judge?sdecision. We further note that the Respondent?s contention is narrow andlimited. The Respondent states that the controls are ?not feasible? solelybecause they ?would not end the alleged violation.?We conclude that the Respondent?sargument is without merit and it is therefore rejected. Under Commissionprecedent, an otherwise feasible control is not rendered infeasible merelybecause it will not reduce exposure within permissible limits so long as theanticipated reduction is ?significant?. See, e. g., Continental Can Co.,76 OSAHRC 109\/A2, 4 BNA OSHC 1541, 1976?77 CCH OSHD ?21,009 (Nos. 3973 et al.,1976), appeal with-drawn, No. 76?3229 (9th Cir. Apr. 26, 1977). Under the circumstancesof this case, the anticipated reduction of 3?8 dBA is clearly significant. Id.[7] Judge Harris hasretired from the Commission since the issuance of his decision in this case.[8] The dosimeterattached to employee Manuel Calderon furnished a read-out percentage of 295,which is equivalent to a time weighted average of 98 dBA; the dosimeterattached to employee Fred Wheeler furnished a read-out of 348 percent which isequivalent to a time weighted average of 99.4 dBA: the dosimeter attached toemployee Patricia Byrd furnished a percentage of 125 equivalent to a timeweighted average of 92 dBA.”