“Docket No. 79-4053 SECRETARY OF LABOR,Complainant,v.GULF AND WESTERN, ENERGY PRODUCTSGROUP, BONNEY FORGE DIVISION,Respondent.INTERNATIONAL ASSOCIATION OFMACHINISTS, LOCAL LODGE 1830,Authorized EmployeeRepresentative.OSHRC Docket No. 79-4053DECISION Before: FOULKE, Chairman; MONTOYA; and WISEMAN,Commissioners.BY THE COMMISSION:At issue in this case is one citation alleging that Gulf and Western Energy ProductsGroup, Bonney Forge Division (\”Bonney Forge\”), exposed thirteen employees toexcessive levels of noise during the manufacture of pipe fittings and elbows at a facilityin Allentown, Pennsylvania. Item 1a of the citation alleges that six employees in themachine shop and three employees in the production grinding area were \”notprovided\” with \”[p]rotection against the effects of\” noise exposuresexceeding those listed in Table G-16 of 29 C.F.R. ? 1910.95(a).[[1]] These employees werenot required to use, and at the time of the alleged violation were not in fact using,personal protective equipment such as ear plugs or ear muffs. Item 1b of the citationfurther alleges that these employees and four others in the forge shop (where personalprotective equipment was required and used) were \”subjected to sound levels exceedingthose listed in Table G-16\” because \”feasible administrative or engineeringcontrols were not utilized\” as required by 29 C.F.R. ? 1910.95(b) (1). [[2]] Bonney Forge contested the citation and the case came before former Administrative LawJudge Benjamin G. Usher for a hearing. During the hearing and in its post-hearing brief,Bonney Forge contended that the alleged violations should be vacated because the Secretaryof Labor had failed to meet his burden of proving:(1) That all thirteen employees were exposed for impermissible durations to noise atexcessive levels;(2) That Bonney Forge knew or with reasonable diligence shouldhave known of any excessive noise levels or durations of exposure;(3) That Bonney Forge did not provide hearing protection toemployees in the machine shop and production grinding area;(4) That the implementation of engineering controls capable ofreducing the noise to permissible levels would have been technologically feasible;(5) That those engineering controls would have beeneconomically feasible;(6) That the abatement dates specified in the citation werereasonable.In his decision, Judge Usher addressed only the first matter: he decided that theSecretary did not prove exposure to excessive noise levels for impermissible durations. Onthis basis he vacated the citation, noting that employers have no duty to comply witheither of the cited standards unless employees are being exposed to daily noise dosesgreater than those permitted in Table G-16.The Secretary seeks reversal of the judge’s decision on the basis that it is contrary tothe preponderance of the evidence. We have closely examined the record and the judge’sfindings, and we conclude that the preponderance of the evidence, fairly weighed, doesestablish the alleged overexposures to noise. Accordingly, we reverse the judge’s decisionand remand the case for disposition of the remaining five matters raised by Bonney Forge,as listed above. As we have indicated, Table G-16 establishes permissible noise exposures, which aremaximum daily doses delimited by decibel level (\”dBA\”) and time. Exposure to 90dBA of noise is permitted for as long as 8 hours, but at higher noise levels the timelimits progressively shorten. For example, at 95 dBA the daily time limit is 4 hours. Ifnoise levels fluctuate throughout a day, as they do in many workplaces, overexposure canbe determined by adding up the several exposure times in the manner specified by aformula, which is set out in the table’s footnote (see note 1 supra).There are two instruments that the Secretary’s Occupational Safety and HealthAdministration (\”OSHA\”) can use to measure an employee’s noise exposure. One isa sound level meter and the other is a dosimeter.The sound level meter consists of a microphone to detect noise and a meter to point outthe instantaneous noise level. To use a sound level meter to show that an employee isexposed to excessive noise for impermissible durations, OSHA would have to measure thenoise level in the employee’s hearing zone over a substantial period of time and show (1)that a particular noise level listed in Table G-16 was exceeded for the correspondingexposure time (e.g., that the employee was exposed to 90 dBA for more than 8 hours), (2)that for a particular time period listed in Table G-16 the noise level exceeded thecorresponding permissible limit (e.g., that throughout an 8-hour period the employee wasconsistently exposed to at least 90 dBA), or (3) that the cumulative exposure times atvarious noise levels amounted to overexposure under the formula.The dosimeter includes a microphone to detect noise; however, instead of a meter pointingout the instantaneous noise levels, the dosimeter feeds the noise data as it accumulatesinto additional circuitry which automatically applies the formula. Thus, the dosimeter canhandle fluctuating noise levels accurately and efficiently since it eliminates the need torecord the length of time an employee is exposed to each measured noise level and the needto perform the calculations of the formula. A dosimeter reading of over 100% indicatesthat the noise is in excess of permissible limits. See Collier- Keyworth Co., 13BNA OSHC 1208, 1210-11, 1986-87 CCH OSHD ? 27,867, pp. 36,509-10 (No. 80-2848, 1987), vacatedper stipulation, No. 88- 2140 (1st Cir. March 22, 1989) (describing measurement ofnoise using sound level meters and dosimeters).In this case, an industrial hygienist from OSHA obtained dosimeter readings that exceeded100% for all thirteen employees. The industrial hygienist also took sound level meterreadings to represent two noise conditions to which the employees were exposed: thebackground noise at their work stations, whenever their own machines or processes were notoperating, as well as the operating noise arising whenever their own machines or processeswere operating along with other machines and processes. These sound level meter readingsrevealed that, during normal operations, the noise levels reaching each employee’s ears ashe worked at his work station generally exceeded 90 dBA–often by a considerable amount.From the dosimeter readings, the industrial hygienist computed each employee’s\”equivalent DBA.\” That is, the hygienist computed the constant noise level thatwould have produced the dosimeter reading. For example, a dosimeter would give a readingof 400% if worn for 6 1\/2 hours in noise measuring a constant 102 dBA (which, as thefollowing table indicates, is the equivalent dBA for employee Wilt, who worked in theproduction grinding area, where the actual noise measured by sound level meter fluctuatedbetween 80-100 dBA of background noise and 103-107 dBA of operating noise).The entire results of the hygienist’s measurements and calculations are shown in thefollowing table. [[3\/]]\u00a0\u00a0 As it shows, the equivalent dBA for each employee iswithin the range of his sound level meter readings: Shop Employee Dosim’r Hours Worn Equiv. dBA Bkgd. dBA Oper’g dBA Mach.S. Diaz 299% 6.8 99 85-92 90-103 1\/2 Mach.S. Felguiras 247% 6.8 98 90-94 90-104 Mach.S. Joler 293% 6.7 99 88-94 91-102 Mach.S. Bachman 375% 6.6 101 unknown 90-106 Mach.S. Check 181% 6.7 96 86-97 86-97 Mach.S. Kuder 173% 6.5 95 83 91-96 1\/2 Forge S. Reph 410% 1.95 110 93-105 110-112 Forge S. McCormick 386% 5.65 102 90-105 102-109 Forge S. McFarland 749% 5.6 107 99-105 108-115 Forge S. Rodriguez 702% 5.6 107 98-105 99-113 Prod.G.A.. Wilt 400% 6.5 102 80-100 103-107 Prod.G.A. O’Donnell 415% 6.4 102 80-100 105-110 Prod.G.A Torok 539% 6.5 104 97-100 102-108 As can be seen from the table, the industrial hygienist’s sound level meter readings areconsistent with the dosimeter readings.IIIn vacating the citation, Judge Usher concluded: \”I am not persuaded by the testimonythat Respondent’s employees were subjected to sound levels in excess of those prescribedin [Table G-16]\” inasmuch as \”[t]he record affords much room for doubt.\”The judge’s key finding as to the source of doubt is stated as:The means and methods employed by [the industrial hygienist] in the collection andrecording of the sound level data at the various work stations were imprecise, confused,fraught with inconsistencies and consequently were rebuttably unreliable.Leading up to this finding is a discussion in which Judge Usher identified nine reasonsfor discrediting the industrial hygienist’s results:(1) The industrial hygienist’s failure to take readings throughout a full 8-hour shift foreach of the thirteen employees, i.e., the failure to make \”full-shift\”measurements;(2) His failure to insure that the noise collected by thedosimeters was \”emitted by the operations performed by the employees at their workstations and that noise alone\”;(3) His uncertainty about the times during which employeeexposure to excessive noise was detected throughout the day;(4) His overall lack of experience and training in noisemeasurement and control;(5) His concession that three out of the six dosimeters used tomeasure noise exposure in the machine shop were not within tolerable limits uponcalibration before and after use;(6) His failure to observe that all of the dosimetermicrophones remained in their proper position on the thirteen employees throughout thesampling period;(7) The possibility that his dosimeters took readings of noiseat levels below 90 dBA.(8) His failure to adjust his readings to compensate for impactnoise; and,(9) His failure to apply an error tolerance factor greater than2 dBA to counteract the possible effects of high frequency noise on the measuredoverexposures.A. Commission Precedent Upholding Use of DosimetersThe first three of the judge’s rationales are inconsistent with Commission precedents,which have correctly held such reasoning to be unsound. With respect to the firstrationale, the Commission has held that full-shift measurements are not always necessaryin order to establish overexposure to noise. Sun Shipbuilding & Drydock Co., 2BNA OSHC 1181, 1182, 1974-75 CCH OSHD ? 18,537, p. 22,518 (No. 268, 1974). The soundnessof the Commission’s precedent is evident. If the Secretary can show that an employee isexposed to more noise in a fraction of a workshift than is permitted for a full shift,there is clearly no need for measurements to continue throughout the remainder of theshift.[[4]]The second rationale is untenable because the Commission has held, properly, that thestandard regulates the total noise to which an employee is exposed, not simply the noisefrom the employee’s own machine or process. See Collier-Keyworth, 13 BNAOSHC at 1223, 1986-87 CCH OSHD at p. 36,522.[[5]] OSHA need not separate out the noise towhich an employee is subjected by surrounding operations or processes. The third rationaleis unsound because the missing data is entirely superfluous. Dosimeters automatically takeinto account how long the employees are exposed to particular noise levels. SeeCollier-Keyworth, 13 BNA OSHC at 1210-11, 1986-87 CCH OSHD at pp. 36,509-10. There istherefore generally no need for an industrial hygienist to keep a separate record of thetime periods that employees were exposed to the particular noise levels.B. The Industrial Hygienist’s Sampling PracticesThe next three rationales (Nos. 4 through 6) are frivolous, for there is no evidence ofany problem from them. As to rationale No. 4, although the industrial hygienist was young,slightly trained, and lacking in overall experience, it does not follow that his readingsin this case are inaccurate. Michael P. McSherry had been an OSHA industrial hygienist foralmost two years. He had a degree in biology and had taken OSHA’s industrial hygienecourses, one of which covered use of sound level meters and dosimeters. Moreover, hetestified that he restudied the dosimeter manufacturer’s instructions before taking thereadings that are at issue in this case. A first attempt to take readings had not beensuccessful because he neglected to install batteries and unlock reset devices. Therefore,he testified, he restudied the instructions before making the second attempt.Use of dosimeters to measure noise doses minimizes the degree of expertise needed.Dosimeters must be properly calibrated and used. However, as we will discuss in greaterdetail in the next paragraph, the industrial hygienist testified that he did properlycalibrate and use the dosimeters to obtain the readings at issue in this case, and thereis no evidence in the record of mistakes affecting those readings. Those readings aregenerally consistent with his readings by sound level meter, an instrument that evenBonney Forge’s expert agreed \”requires little training\” and is \”pretty easyto use.\” [[6]]Industrial hygienist McSherry’s concession concerning calibration of three of the sixdosimeters provides no support for the judge’s holding in this case. The industrialhygienist did not make any calibration errors that produced readings higher than actualnoise levels; therefore, rationale No. 5 has no merit. On direct examination, theindustrial hygienist testified that he calibrated each dosimeter twice, both before itsuse and again after reading out the results. On cross-examination, Bonney Forge’s counselasked about calibration results that might indicate a failure to come within tolerablelimits. However, his questions did not elicit any testimony acknowledging any problem withthe dosimeters other than the following, concerning three dosimeters used in the machineshop: \”Looks like a couple of them are reading a little bit low.\” As aconcession, this is certainly not a detrimental one, for it meant that the dosimetersregistered a lower exposure than actually existed; thus, any error only accrued to thebenefit of Bonney Forge.Finally, in examining the judge’s sixth rationale, we find no indication that any of themicrophones connected to the dosimeters were improperly positioned on the employees at anytime during the sampling period. The record demonstrates that the industrial hygienistconformed to accepted OSHA and industrial hygiene practices in attaching the microphonesto the shirt collars of those employees who had collars and to the shirt shoulders ofthose employees without collars. Two employees testified that they needed adjustments tobe made to the wire clipped to their backs, which connects the microphone to the part ofthe dosimeter that contains its circuitry, but there is no showing that any microphoneitself slipped or came off. Thus, we see no more than a hypothetical possibility and noevidence in the record that a malpositioned microphone produced an inaccurate reading.Moreover, the correlation of the sound level meter readings to the dosimeter readingssuggests that, even if there was a microphone that was not in proper position, theimproper placement had no significant effect on the accuracy of the dosimeter reading.C. Margins of ErrorThe last three rationales (Nos. 7 through 9) of the judge are also without merit in lightof the factual record as a whole in this case. These three rationales share a commonpromise: that, for varying reasons, the dosimeter readings must be discounted by somesignificant percentage to allow for an adequate margin of error. Yet, the record as awhole reveals that, even after allowing a very large margin of error, Bonney Forge’s ownexpert accepted ten out of the thirteen readings as establishing overexposure. Thisexpert, James H. Botsford, a consultant noise control engineer, had criticisms of theindustrial hygienist’s techniques, but he did not say that dosimeter readings attainingthe magnitude of the ones in this case should be disregarded entirely. Instead, hetestified that the readings of over 250% could be considered to reveal overexposure. [[7]]There remain, then, the three dosimeter readings of less than 250%, all obtained in themachine shop. However, even there, we note that expert Botsford’s independentinvestigation apparently confirmed the industrial hygienist’s finding ofoverexposure.[[8]] Moreover, we find no basis for disregarding the three machine shopreadings on the basis of any ascertainable percentage for error.The judge referred to a possibility (rationale No. 7) that the dosimeters took readings ofnoise at levels below 90 dBA. Because Table G-16 places no limit on exposure to noise atlevels below 90 dBA, such exposure should not be considered in determining whetheroverexposure has occurred. Specifically, the judge’s concern was based on testimony thatsuggests that the dosimeters might have been reading noise from 89 dBA upward.[[9]] Thisdoes not mean, however, that the readings are meaningless, simply that they have to bediscounted by a larger error factor: approximately 50% instead of 32%.[[10]] Only tworeadings were below 200% and even those were well over 150%. Thus, even if the dosimeterswere improperly set at 89 dBA, each reading still exceeded the instrument’s inherent errorfactor by a substantial amount.The judge also submitted (rationale No. 8) that the dosimeterreadings should have been further discounted for impact noise.[[11\/]] However, the onlyplant area in which impact noise was generated was the forge shop, where, as we havepreviously observed, the dosimeter readings were of such a magnitude that even BonneyForge’s expert would accept them as showing overexposure. In the machine shop and theproduction grinding area, the noise was produced by processes such as drilling, cutting,and grinding–processes that do not generate the high-intensity, short-duration noisepeaks that are characteristic of impact noise.Bonney Forge argues that there was a spillover of impact noise from the forge shop intothe machine shop, and that, thereby, the dosimeter readings in the machine shop werecontaminated and rendered unreliable. We agree with Bonney Forge that, to the extent thatthe noise produced in the forge shop consisted of impulses more than one second apart, anyspillover of it into the machine shop would not be properly included in noise measurementstaken there. See note 11 supra. However, the Secretary’s witnesses uniformlytestified that, although the impacts of the forge hammers were audible in the machineshop, they were an insignificant part of the total noise exposure compared to the noisecreated by the machines located within the machine shop.[[12]] The only contrary testimonycame from Bonney Forge’s expert witness, and it was ambivalent. [[13]] Accordingly, we seeno basis for discounting the machine shop readings.Lastly, the judge believed that the readings should have been discounted for highfrequency noise (rationale No. 9). As stated previously, at note 7 supra, BonneyForge’s expert witness testified that, because of the presence of high frequency noise inthe workplace, OSHA should have applied an error factor of 6.5 dBA in this case;translated to the dosimeter, this would require a reading of nearly 250% to showoverexposure. See Collier- Keyworth, 13 BNA OSHC at 1228-29, 1986-87 CCH OSHD at p.36,528; also, Table A-1 of 29 C.F.R. ?1910.95. In Collier-Keyworth, however, theevidence proved that the employee was exposed to predominantly high frequencynoise. Therefore, the Commission concluded that his 158.5% reading was insufficient toshow overexposure. 13 BNA OSHC at 1229 & n.27, 1986-87 CCH OSHD at p. 36,528 &n.27. In contrast, in this case, there is no evidence that any employee was exposed topredominantly high frequency noise. Bonney Forge’s expert witness testified that he didnotice some high pitched noise at several locations. However, Bonney Forge did not attemptto prove that this noise was a significant part of any employee’s total noise dose. Thus,we find no basis for applying the large error factor to any of the readings in this case,including in particular the three lowest dosimeter readings taken in the machine shop.D. The Absence of any Evidence of ComplianceFinally, all nine rationales of the judge’s decision are undercut by the absence of anyevidence indicating that noise exposures at Bonney Forge’s workplace were withinpermissible limits. This is not a case where the judge was called upon to balance evidenceindicating overexposure against evidence indicating permissible exposure, and concludedeither that the latter evidence preponderated or that neither side preponderated. Instead,virtually all of the evidence, in this enormous and presumably exhaustive record, dealingwith the subject of noise exposure at Bonney Forge’s workplace, suggests that permissiblelimits were exceeded.Bonney Forge claims that there is evidence showing the noise exposures to have been withinpermissible limits, but either the \”evidence\” is not in the record or it doesnot support the claim. Bonney Forge repeatedly asserts that its insurance company\”made a noise survey of the machine room which showed the levels to be within theTable G-16 limits.\” However, any such results of an insurance survey are not in therecord. In fact, on that basis Judge Usher sustained an objection by the Secretary to aquestion by Bonney Forge’s counsel, trying to incorporate an assertion that two priornoise surveys had shown the noise exposures to be within permissible limits.Bonney Forge also relies on measurements taken by another OSHA compliance officer during a1977 safety inspection, which led to the 1979 industrial hygiene inspection in this case.During the 1977 safety inspection, the compliance officer took sound level meter readingsranging from 88 dBA to 92 dBA in the machine shop, which could indicate exposure withinpermissible limits. However, because of his extensive experience in industrial plants,this compliance officer was convinced that his readings were inaccurate; after theinspection, he turned in his sound level meter as defective equipment and recommended anindustrial hygiene inspection of the machine shop.III.In sum, we conclude that the Secretary established that thirteen employees were exposedfor impermissible durations to excessive levels of noise. Accordingly, we reverse thejudge’s decision holding to the contrary, and we remand this case to the ChiefAdministrative Law Judge for reassignment and for appropriate disposition of the remainingfive issues listed in this decision. As we have indicated, the evidentiary record issubstantial, and the necessary factual findings and legal conclusions should be in thefirst instance entered by an administrative law judge rather than the Commission. Also, tothe extent necessary and appropriate, the parties may be given an opportunity to presentadditional arguments.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: January 14, 1991SECRETARY OF LABORComplainantv.GULF AND WESTERN, ENERGY PRODUCTSGROUP, BONNEY FORGE DIVISIONRespondentINTERNATIONAL ASSOCIATION OFMACHINISTS, LOCAL LODGE 1830Authorized Employee Representative OSHRC DOCKET NO. 79-4053DECISION AND ORDER Appearances:Howard K. Agran, Esq.Office of the Regional SolicitorU. S. Department of LaborPhiladelphia, Pennsylvaniafor the ComplainantRobert D. Moran, Esq.Washington, D. C.for the RespondentMr. Douglas Navarre, ChairmanInternational Association of Machinists – Local Lodge 1830Allentown, PennsylvaniaandMr. Thomas Messner, PresidentInternational Association ofMachinists – Local Lodge 1830Northhampton, Pennsylvaniafor the Authorized EmployeeRepresentativeUsher, Judge:These proceedings were initiated by the Secretary of Labor, United States Department ofLabor, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29U.S.C. ? 651, et seq. (\”the Act\”). The Secretary seeks affirmanceof a citation charging several \”willful\” violations of Section 5(a)(2) of theAct and the assessment of a $2,000 penalty.[[1\/]]The Citation, resulting from an inspection of Respondent’s workplace at Allentown,Pennsylvania, from March 15 to May 9,1979, was issued on July 9, 1979. Respondent filed atimely Notice of Contest; a Complaint and Answer followed in accordance with theCommission’s Rules of Procedure (29 CFR 2200.33); and the issues were tried before me atAllentown, Pennsylvania, on 14 non-consecutive days between April 2 and August 5, 1980.The International Association of Machinists elected party status pursuant to CommissionRule 20(a) (29 CFR 2200.20(a)), and its representatives participated fully at the trial.Complainant and Respondent filed post-trial briefs on November 17 and 20, 1980. The unionhas not briefed its position.The Issues.The pleadings, evidence adduced by the parties, the oral arguments of counsel and theirpost-trial briefs have served to raise the following issues: 1) whether Respondentviolated Section 5(a)(2) of the Act because of its failure to comply with the healthstandards promulgated by Complainant and codified at 29 CFR 1910.95(a) and 1910.95(b)(1),or either of these standards; 2) if a violation or violations occurred as charged byComplainant, was that violation or those violations \”willful\” in nature, as thatterm is used in Section 17(k) of the Act and defined by the Commission and the courts; and3) if violative conduct on Respondent’s part has been proven, what penalties, if any, areappropriate in accordance with the provisions of Sections 17(a) and 17(j) of the Act.The Citation issued by Complainant on July 9, 1979, reads in full as follows:The violations described in this citation are alleged to have occurred on or about the daythe inspection was made unless otherwise indicated within the description given below.1a29 CFR 1910.95(a): Protection against the effects of noise was not provided foremployee(s) exposed to sound levels which exceeded those listed in Table G-16 of sub-partG of 29 CFR part 1910:a) The employee operating machine no. 299 in the Machine Shop was exposed to noise, March26, 1979.b) The employee operating machine no. 198 in the Machine Shopwas exposed to noise, March 26, 1979.c) The employee operating machine no. 398 in the Machine Shopwas exposed to noise March 26, 1979.d) The employee operating machine no. 389 in the Machine Shopwas exposed to noise, March 26, 1979.e) The employee operating machine no. 275 in the Machine Shopwas exposed to noise, March 26, 1979.f) The employee operating machine no. 581 in the Machine Shopwas exposed to noise, March 26, 1979.g) The three Sweepolet grinders in the Production Grinding Areawere exposed to noise, April 4, 1979.1b29 CFR 1910.95(b)(1): Employee(s) were subjected to sound levels exceeding those listed inTable G-16 of subpart G of 29 CFR part 1910, and feasible administrative or engineeringcontrols were not utilized to reduce sound levels:a) The employee operating machine no. 299 in the Machine Shop was exposed to noise, March26, 1979.b) The employee operating machine no. 198 in the Machine Shopwas exposed to noise, March 26, 1979.c) The employee operating machine no. 398 in the Machine shopwas exposed to noise, March 26, 1979.d) The employee operating machine no. 389 in the Machine Shopwas exposed to noise, March 26, 1979.e) The employee operating machine no. 275 in the Machine Shopwas exposed to noise, March 26, 1979.f) The employee operating machine no. 581 in the Machine Shopwas exposed to noise, March 26, 1979.g) The operator of the no. 16 Forge Hammer was exposed to noiseMarch 27, 1979.h) The helper assigned to the no. 16 Forge Hammer was exposedto noise, March 27, 1979.i) The operator of the no. 18 Forge Hammer was exposed toimpact and continuous noise, March 27, 1979.j) The helper assigned to the no. 18 Forge Hammer was exposedto noise, March 27, 1979.k) The operator of the no. 12 Forge Hammer was exposed toimpact noise March 27, 1979.l) The three Sweepolet grinders in the Production Grinding Areawere exposed to noise, April 4, 1979.The combination of the above alleged violations (1a and 1b) affected the overall gravityof possible illness and contributed to the serious nature of the alleged violations.*Step 1: Effective personal hearing protection shall be provided and used by employee(s)as an interim protective measure.*Step 2: A written detailed plan of abatement leading to the complete abatement of thisitem shall be submitted to the Area Director. Such a plan shall : a) employ the use ofqualified engineering personnel; b) include detailed engineering studies and theirresults; c) outline the ordering of equipment and materials and completion of the designphase; and d) outline dates for the anticipated implementation of the plan.*Step 3: Feasible engineering controls and\/or administrative controls, shall bedetermined.*Step 4: Abatement shall be completed by the implementation of feasible engineeringcontrols and its effectiveness at achieving compliance verified. 90-Day progress lettersare requested during the abatement period.The abatement requirements set forth in \”Step 1\” were required by Complainant tobe accomplished \”immediately\”; those in \”Step 2\” within two months;those in \”Step 3\” within three months; and a one-year period was allowed for theimplementation of feasible engineering controls or administrative controls, as specifiedin \”Step 4.\”A total penalty of $2,000 was proposed by Complainant for all the asserted violations.The safety standards referred to in the Citation provide the following requirements (inpertinent part):29 CFR 1910.95 OCCUPATIONAL NOISE EXPOSURE(a) Protection against the effects of noise exposure shall be provided when the soundlevels exceed those shown in Table G-16 when measured on the A scale of a standard soundlevel meter at slow response. When noise levels are determined by octave band analysis,the equivalent A-weighted sound level may be determined as follows: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 1-1\/2 102 1 105 1\/2 110 1\/4 or less 115 (b) (1) When employees are subjected to sound exceeding thoselisted in Table G-16, feasible administrative or engineering controls shall be utilized.If such controls fail to reduce sound levels within the levels of Table G-16, personalprotective equipment shall be provided and used to reduce sound levels within the levelsof the table.Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level.The dBA sound levels set forth in Table G-16 are further explained as follows:When the daily noise exposure is composed of two or more periods of noise exposure ofdifferent levels, their combined effect should be considered, rather than the individualeffect of each. If the sum of the following fractions: C1\/T1 + C2\/T2… Cn\/Tn exceeds unity, then, the mixed exposure should beconsidered to exceed the limit value. Cn indicates the total time of exposure at aspecified noise level, and Tn indicates the total time of exposure permitted at thatlevel.Background.Respondent is engaged in the manufacture of pipe fittings and metal elbows at itsAllentown, Pennsylvania, facility and produced a gross annual dollar volume of $17,146,000during the fiscal year ending in 1979. (Respondent’s answer to Interrogatory No. 25, Tr.p. 117).On March 22, 26 and 27, and April 4, 1979, noise monitoring was conducted in BonneyForge’s machine shop, forge shop and in the production grinding area by Michael P.McSherry an industrial hygienist employed by Complainant’s Occupational Safety and HealthAdministration (\”OSHA\”). The results of the March 22 sampling were discardedbecause of the faulty operation of the noise dosimeters used on that date. Thus, theresults obtained from monitoring on March 26 and 27, and April 4, 1979, served as thebasis for the issuance of the Citation charging violations of the noise standards. (Tr.pp. 834-835).Summary of the EvidenceRegarding Item 1a of theCitation.In item 1a of his Citation, Complainant charges that Respondent failed to provideprotection for its employees who were exposed to levels of sound which exceeded the levelsset forth in the health standard.The industrial hygienist (hereinafter the \”Compliance Officer\” or\”CO\”) testified that he attached a pre-calibrated Gen-Rad dosimeter to theclothing of each of the employees whom he selected to be sampled for noise exposure. Thedosimeters were attached at the employee’s belt or placed in his pockets, and a cord wasrun over his shoulder to the microphone which was pinned at or near the lapel of hisshirt. This, according to the CO, placed the microphone in the employee’s hearing zone.The dosimeter is designed to record all sound levels to which the employee is subjectedduring the time it is operating, and it integrates those sound levels with the duration ofexposure. If it is properly calibrated, and if the integration factor is correct, itproduces a readout representing a percentage of the noise permitted by the health standard(Table G-16 of 29 CFR 1910.95(a)).The CO took samples of the noise encountered by employees in Respondent’s machine shop onMarch 26, in the forge shop on March 27, and in the production grinding area on April 4,1979. The noise exposure experienced by six machine operators was measured; three grinderswere equipped by the CO with dosimeters; and four forge hammer operators and forgeoperator helpers were subjected to the testing.According to the CO’s testimony, the dosimeter readings for the machine operators were:Employee Diaz\u00a0\u00a0\u00a0\u00a0 -298.6% of thepermissible level Employee FeIguieras\u00a0\u00a0\u00a0\u00a0 -247% of the permissible level Employee Joler\u00a0\u00a0\u00a0\u00a0 -293% of the permissible level Employee Bachman\u00a0\u00a0\u00a0\u00a0 -375% of the permissible level Employee Check\u00a0\u00a0\u00a0\u00a0 -180.8% of the permissible level Employee Kuder\u00a0\u00a0\u00a0\u00a0 -172.9% of the permissible levelAnd the forge hammer operators and helpers:Employee Reph\u00a0\u00a0\u00a0\u00a0 -410.5% of thepermissible level Employee McCormick\u00a0\u00a0\u00a0\u00a0 – 386.1% of the permissible level Employee McFarland\u00a0\u00a0\u00a0\u00a0 – 749.1% of the permissible level Employee Rodrigues\u00a0\u00a0\u00a0\u00a0 – 725% of the permissible levelThe dosimeter readings reported for the grinders were:Employee Torok\u00a0\u00a0\u00a0\u00a0 – 539% of thepermissible level Employee O’Donnell\u00a0\u00a0\u00a0\u00a0 – 414.6% of the permissible level Employee Wilt\u00a0\u00a0\u00a0\u00a0 – 400% of the permissible levelThe CO testified that he also measured the noise exposure of each of the same employeesusing a standard sound level meter (on the A scale at slow response). These readings forDiaz averaged 85 dBA to 103.5 dBA; Felguieras – 88 dBA to 104 dBA; Joler – 88 dBA to 101dBA; Bachman – 91 dBA to 104 dBA; Check -86 dBA to 96 dBA; Kuder – 83 dBA to 96.5 dBA;Reph – 93 dBA to 105 dBA; McCormick – 90 dBA to 109 dBA; McFarland 97 dBA to 113 dBA; Rodrigues – 98 dBA to 113 dBA; Torok – 97 dBA to 108 dBA; O’Donnell 80 dBA to 110dBA; and Wilt – 80 dBA to 107 dBA. The 80 dBA readings were actually listed as \”lessthan 80 dBA\” and were recorded when no one in the area was operating a grinder.CO McSherry used the dosimeter readings to calculate the \”average – or equivalent -dBA measurements for a full eight hour day,\” accounting for the somewhat limited timeperiods when the dosimeters were in place on the employees and operating. He testifiedthat the time periods and the calculated averages were: Diaz\u00a0 -410 minutes – 99 dBA Felguieras -406 minutes – 97.7 dBA Joler -400 minutes – 99.1 dBA Bachman -395 minutes – 100.9 dBA Check -398 minutes – 95.6 dBA Kuder -392 minutes – 95.4 dBA Reph -117 minutes – 110.4 dBA McCormick -339 minutes – 102.3 dBA McFarland -337 minutes – 107 dBA Rodrigues -338 minutes – 106.8 dBA Torok -390 minutes – 103.7 dBA O’Donnell -385 minutes – 101.8 dBA Wilt -390 minutes – 101.7 dBA Thus, according to the testimony, the dosimeters were in placeon the machine shop employees for approximately six and one-half to seven hours. Likewise,the grinders wore them for approximately six and one-half hours. Employee Reph \”leftfor the day\” after working only about two hours, but the other forge hammer operatorsand helpers wore the dosimeters for approximately five and one-half hours.In the machine shop, metal castings are bored or drilled as they are fed into the machinesand lathes by the employee operators. The metal pieces are rotated within the machinesthrough a cycle until the drilling or boring operation is complete and the finishedproduct is ejected. Thus the noise emitted by each machine varies as the process continues(e.g., more or less pieces being machined at one time, or different sized piecesinvolved), and the operator is subjected to the resulting noise, not only from the machinehe is tending, but from all other machines in the shop. Variations in the sound levelswithin the machine shop are, of course, caused by the number of machines being operated ata given time.In the forge shop metal bars are heated in furnaces, transferred to the forge hammers bythe helpers, and struck by hammer dies to form castings (elbows and other pipe fittings).Adding to the noise caused by the forge hammers as they descend and strike the heatedmetal is the \”constant roar\” of the nearby furnaces, and, not unlike thesituation in the machine shop, the operator and his helper are subjected to the noiseproduced by the operation of other furnaces and hammers in the area as well as that fromthe furnace and hammer they are tending.The production grinders use hand-held grinding equipment to remove imperfections fromforged castings which are placed on tables or on the floor of the plant, depending uponthe size and weight of the piece. The noise is uttered from the operation of the grindingtool itself and from the \”ringing\” of the metal casting as it is struck by thetool. The level of the sound depends, to some extent, upon the size and shape of thecasting and otherwise varies depending upon whether it is placed more solidly on the flooror on a table. The degree of the sound level in the area increases as the number ofgrinding operations increases, and each grinder is subjected to the noise caused by theother operations around him, as well as that produced by his own. Grinding is not acontinuous operation.According to the CO’s testimony, employees in the forge shop wore hearing protectivedevices; those in the machine shop and the production grinding area did not. Thus aviolation of the health standard codified at 29 CFR 1910.95(a) was charged, but thatcharge did not include the employees who worked as forge hammer operators and helpers.Evaluation of the Evidence Regarding Item 1a ofthe CitationIn order to require that Respondent provide \”protection against the [adverse] affectsof [the] noise exposure [of its employees]\” Complainant must first prove, by apreponderance of the evidence, that the unprotected employees were in fact exposed to\”sound levels [which] exceed those shown in Table G-16 when measured on the A scaleof a sound level meter at slow response.\” 29 CFR 1910.95(a). Respondent’s counselargues at length that Complainant has failed to carry his burden of proof.[[2\/]] Iagree.[[3\/]]Respondent’s counsel attacks the \”integrity of the measurements\” of the soundlevels made by Complainant’s agent and attacks his credibility on the basis of hisinexperience and ineptness. I agree that grossly inadequate instruction by his employerand the apparent lack of conviction on the CO’s part cause a resulting absence ofpersuasion.[[4\/]]The record supports Respondent’s assertions regarding the CO’s lack of experience in thefield of noise measurement and control. He attended a liberal arts college and had noexposure to the study of engineering of any kind. He did not work in the engineering fieldprior to assuming his present position, and has attended no courses specifically designedto treat the subject of noise measurement or noise control. A three-week OSHA trainingcourse which he attended in 1977 might have included training in the general subject ofnoise measurement, but he \”didn’t remember\” whether it did. He \”didn’tknow\” how much training he has had in measuring sound levels, but it was \”maybea day;\” he \”really didn’t remember.\” Asked how much time he had spentstudying the operation of sound level meters and audio dosimeters prior to the time of theinspection in question, he replied: \”I really don’t know;\” and when queriedabout whether he remembered \”anything [from the OSHA courses] about taking noisemeasurements,\” he said: \”I’m not sure.\”[[5\/]]These candid admissions by Complainant’s principal witness lead to the obvious questionwhether his testimony alone is sufficient to support the charge asserted, viz.,that Respondent’s employees were exposed to sound levels which exceeded those set forth inthe cited health standard. Clearly that is the predicate upon which Complainant has basedhis assertion that protective equipment should have been provided and that engineering oradministrative controls should have been instituted.Viewing this witness’ testimony critically to determine whether it amounts to apreponderance of the evidence leads to the conclusion that there is considerable doubtabout Respondent’s failure to comply with the safety standard — considerable doubtregarding the level of the noise at the various work stations.In no instance did the CO perform a full shift sampling. Expert acoustical engineers maydisagree that an eight-hour sampling is necessary for accuracy, but the expert witnesseswho testified here seem to think that it is. [[6\/]] Likewise, the CO made no adjustmentsfor the impact noise (as opposed to continuous noise) at the work stations. Whatconsideration should have been given for that factor is unclear from this record, but itshaving been ignored entirely casts further doubt upon the ultimate findings of the CO, andthose findings are the sole basis for the issuance of the citation.[[7\/]]According to the testimony, an audio dosimeter records and reads out the sound levels itencounters in percentages of the allowable limit (Table G-16). However, the time-weightedaverage reported may vary depending upon whether the integration of the dosimeter beginsat 90 dBA, or some lower or higher level. The record here is unclear, but apparently somedosimeters integrate at 80 or 85 decibels. The CO did not know at what level — or levels– the dosimeters he used would integrate. He conceded that the integration point may wellhave been below 90 dB. He stated that \”the integrator drops off sharply below 90dBA.\” If, as might well have been the case, the integration point of the dosimetersused by the CO was less than 90 decibels — perhaps 85 — the resulting readouts wouldhave been in terms of a percentage of 85, not 90 decibels as provided for in the healthstandard. The error could, of course, be crucial to a determination whether the standardwas violated because of excessive sound levels.[[8\/]] Complainant’s agent attempted to bolster the accuracy of the dosimeter readings by thesubmission of his findings when using the sound lever meter. While the audio dosimeterswere in place on the employee’s, the CO held the sound level meter (presumably in thehearing zone of the employee) and read the \”low point and the high point on thefluctuating dial.\” He observed these readings for \”three or four seconds\”each time and then recorded them. He did not record the lengths of time the meterindicated the higher levels or the lower levels. Nevertheless, he concluded that hisfindings, made and recorded as the result of the sound level meter readings, confirmed theaccuracy of the dosimeter readouts.[[9\/]]As pointed out above, the sound levels at the several work stations varied measurably fromtime to time depending upon which machines were operating, how many machines were in use,what castings or other parts were being machined, whether forge hammers and furnacesoperated simultaneously, whether pieces were ground on tables or on the floor, etc.Likewise, the frequency of the noise emitted as the different operations were conducted –as well as the volume and intensity of the sound — varied considerably.[[10\/]] Despitethat fact, the CO did not allow differing error tolerance factors when calculating hisfindings. He stated that he allowed an error factor of 2 dBA throughout. The measurementof high frequency noise requires the application of a greater error factor, according toRespondent’s expert witness.[[11\/]]Complainant’s principal witness was somewhat less thanscrupulous regarding the actual sampling of noise exposures at the employees’workstations. He presumably knew how long each audio dosimeter was attached to theindividual employee, but he was quite uncertain about where the employee spent that periodof time. If a machine was down, or the employee left his work station for other reasons,went to lunch or to the rest room, he made no calculated adjustment.[[12\/]] He purportedto measure the full-shift noise level at certain work stations, –at least byinterpolation– but his uncertainty about where each employee was during the time he wasmonitored leaves further doubt about the purity of his reported findings. Complainant’sexpert witness, Doctor Clayton H. Allen, conceded as much when he stated that \”their[employees’] positions throughout the day determine the relative importance of these[noise] sources.\”[[13\/]] One single fact to be gleaned from this record is that theCO could not be certain that the dosimeters he relied upon collected noise emitted by theoperations performed by the employees at their work stations and that noise alone.[[14\/]]Further indications of a lack of exactitude appear in the record. The CO conceded thatthree of the six dosimeters he used in the machine shop did not come within tolerablelimits upon calibration both before and after their use.[[15\/]] He was not certain thatthe dosimeter microphones remained in position on the employees throughout the samplingperiods; he said, \”I don’t remember.\”[[16\/]] Improper positioning of the audiodosimeter microphone can materially affect the sampling results, according to thetestimony of Respondent’s expert witness.[[17\/]] The CO lacked total conviction about thetime of the employee’s exposure to the offensive sound levels.[[18\/]] This, of course, iscrucial inasmuch as the health standard relied upon by Complainant is based specificallyupon the excessive sound levels and the time they are endured by an employee.Denouement Complainant’s burden of proof is clear. He must convince the fact finder by apreponderance of the evidence that the asserted violation is supported by the factsadduced. The burden of persuasion has not been met here. I am not persuaded by thetestimony that Respondent’s employees were subjected to sound levels in excess of thoseprescribed in the health standard promulgated by Complainant. The record affords much roomfor doubt.As stated above, if Complainant fails to prove a violation of the health standard codifiedat 29 CFR 1910.95(a), viz, that \”. . . the sound levels [at Respondent’sworkplace] exceed those shown in Table G-16 when measured on the A scale of a standardsound level meter at slow response\” there is no requirement that \”protectionagainst the effects of noise exposure be provided\” and no need for the utilization of\”feasible administrative or engineering controls.\”FINDINGS OF FACTA preponderance of the probative evidence of record, taken in its entirety, compels thefollowing findings of fact:1. Respondent, a corporate entity, is engaged in the manufacture, sale and distribution ofpipe fittings and similar metal products at its Bonney Forge Division, Allentown,Pennsylvania, where it grossed in excess of $17 million during fiscal year 1979.2. Goods produced by Respondent at the Allentown plant are shipped in interstate commerce.3. On March 26 and 27, and April 4, 1979, Complainant’s agent monitored the sound levelsat various work stations in the machine shop, forge shop and production grinding area atRespondent’s Bonney Forge facility.4. The means and methods employed by Complainant’s agent in the collection and recordingof the sound level data at the various work stations were imprecise, confused, fraughtwith inconsistencies and consequently were rebuttably unreliable.5. Complainant failed to sustain his burden of proof, and his conclusions regardingviolations by Respondent at the times and places asserted are rejected as speculative.CONCLUSIONS OF LAW1. Jurisdiction of the parties and of the subject matter herein is conferred upon theOccupational Safety and Health Review Commission by section 10(c) of the Act.2. At all times relevant hereto, Respondent was an employer engaged in a businessaffecting commerce within the meaning of Section 3(5) of the Act and as such was subjectto the requirements of Section 5(a)(2) of the Act.3. Respondent did not violate Section 5(a) (2) of the Act on or about March 26 and 27, andApril 4, 1979, by its failure to comply with the provisions of the health standardpromulgated by Complainant and codified at 29 CFR 1910.95(a), as charged by Complainant inhis Citation, dated July 9, 1979.4. Respondent did not violate Section 5(a) (2) of the Act on or about March 26 and 27, andApril 4, 1979, by its failure to comply with the health standard promulgated byComplainant and codified at 29 CFR 1910.95(b)(1), as charged by Complainant in hisCitation, dated July 9, 1979, inasmuch as the measured sound levels at the various workstations did not exceed those levels listed in Table G-16 of subpart G of the standardcodified at 29 CFR 1910, and feasible administrative or engineering controls were thus notrequired.ORDER Upon consideration of the foregoing findings and conclusions, it is hereby ORDERED thatthe Citation issued to Respondent by Complainant on July 9, 1979, is VACATED, and.accordingly no penalty is assessed.BENJAMIN G. USHER JUDGE, OSHRCDated: May 13, 1982New York, New YorkFOOTNOTES: [[1]] Section 1910.95(a) and Table G-16 provide, in relevant part:Protection against the effects of noise exposure shall beprovided when the sound levels exceed those shown in Table G-16 when measured on the Ascale of a standard sound level meter at slow response. . . .* * *TABLE G-16–PERMISSIBLE NOISE EXPOSURES [[1]]Duration per day, hours Sound level dBA slow response8…………………………………………………………..906…………………………………………………………..924…………………………………………………………..953…………………………………………………………..972………………………………………………………….1001 1\/2 ……………………………………………………1021………………………………………………………….1051\/2……………………………………………………….1101\/4 or less……………………………………………..115[[1]] When the daily noise exposure is composed of two or moreperiods of noise exposure of different levels, their combined effect should be considered,rather than the individual effects of each. If the sum of the following fractions: C1\/T1+ C2\/T2 Cn\/Tn exceeds unity, then, the mixedexposure should be considered to exceed the limit value. Cn indicates the totaltime of exposure at a specified noise level, and Tn indicates the total time ofexposure permitted at that level. . . .[[2]] Section 1910.95(b)(1) provides:When employees are subjected to sound exceeding those listed inTable G-16, feasible administrative or engineering controls shall be utilized. If suchcontrols fail to reduce sound levels within the levels of Table G-16, personal protectiveequipment shall be provided and used to reduce sound levels within the levels of thetable.[[3]] There were no background noise readings obtained foremployee Bachman. We have rounded off the dosimeter readings to the nearest whole percent,and the equivalent dBAs to the nearest dBA. The industrial hygienist’s calculations of theequivalent dBAs were confirmed at the hearing by an expert witness, an occupational healthengineer employed by OSHA (see note 6 infra).[[4]] At the time of the inspection, OSHA’s Industrial HygieneField Operations Manual required full-shift sampling. Full-shift sampling may be needed toestablish overexposure in marginal cases, or to delineate the full extent of a noiseproblem, or to shed light on the feasibility of engineering or administrative controls.However, as the record in this case indicates, full-shift sampling is not needed to proveoverexposure when overexposure is shown by a partial day’s measurements.[[5]] The judge was also concerned that the industrialhygienist did not remove the dosimeters or adjust the readings for noise encounteredduring lunch or rest breaks. However, the standard limits total daily noise exposure andthere is no apparent reason why exposure during lunch or rest breaks should not becounted. Cf. Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD ?20,448, p. 24,424 (No. 504, 1976) (a finding of employee access to a hazard can bepredicated on access during personal comfort activities).[[6]] The Secretary buttressed her industrial hygienist’squalifications with testimony from OSHA’s leading noise expert, Dr. John Barry, theoccupational health engineer who wrote the noise measurement chapter of the IndustrialHygiene Field Operations Manual (IHFOM). See also Collier-Keyworth Co., 13 BNA OSHCat 1221, 1986-87 CCH OSHD at p. 36,520. Dr. Barry testified that he had worked withindustrial hygienist McSherry and believed that his noise survey in this case was validand adequate for compliance purposes. [[7]]He stated that the readings \”greater than 250% are probably valid indicators ofoverexposure . . . taking into consideration the type of noise . . . and the tolerances ofthe instruments for that type of noise.\” Again, at another point in his testimony, heproposed reducing the readings by a large error tolerance factor of 6.5 dBA to allow forhigh frequency noise. The usual factor of 2 dBA is applied by disregarding readings of132% or less. A 6.5 dBA factor would be applied by disgarding readings of 250% or less.(See 29 C.F.R. ? 1910.95, Table A-1, where a 250% dose is equated with an 8-hour TWA of96.6 dBA).[[8]] After the citation issued, Bonney Forge retained expertBotsford to evaluate the noise situation in all three areas of the plant and to determinewhether engineering controls would be feasible. In performing this study, the expert madesome noise measurements at various locations, including the machine shop. His purpose wasnot to determine employee noise doses, but his testimony on the issue of feasibilityreflected a belief that the employees in the machine shop were exposed to excessive noiselevels. Specifically, Bonney Forge’s expert testified that certain engineering controlsfor the machine shop would not be feasible because they would not reduce the noise towithin permissible limits. He also stated that controls in the forge shop and theproduction grinding area would not reduce the noise to within Table G-16 levels.[[9]] Although the industrial hygienist understood the operating instructions to say thatthe instruments began reading at 90 dBA, OSHA’s leading noise expert Barry testified thatdosimeters of the type used by OSHA have a \”threshold\” or \”gate\” of 89dBA. This expert and expert Botsford differed as to how significant this was, but bothindicated that counting noise from 89 dBA upward could produce elevated readings.[[10]] Dosimeters set at 90 dBA have an inherent error factorof 2 dBA. Thus, a 90 dBA reading of 100% means that the actual noise level could be ashigh as 92 dBA or as low as as 88 dBA. To compensate, OSHA issues a citation only if areading exceeds 132%, which corresponds to 92 dBA and places the actual noise level nolower than 90 dBA. See Collier- Keyworth , 13 BNA OSHC at 1228, 1986-87 CCH OSHD atp. 36,528; also, Table A-1 of 29 C.F.R. ? 1910.95. If any dosimeter in this case was setto begin reading noise at 89 dBA rather than 90 dBA, the instrument should be treated ashaving a 3 dBA error factor (1 dBA higher than usual). Therefore, to justify a citation,its reading should have been slightly above 150% (which corresponds to 92.9 dBA, accordingto Table A-1).[[11]] Impact noise is noise produced by the impact of twoobjects, such as a hammer striking metal during forging operations. The standard definesas \”continuous\” (and therefore includes) noise from a series of impacts havingpeaks less than one second apart. See Collier-Keyworth, 13 BNA OSHC at 1223,1986-87 CCH OSHD at p. 36,522. The impact noise that is excluded from the standard iseither individual impacts or a series of impacts that are more than one second apart.[[12]] Expert Barry noted that the impacts from the forge shopdid not register as background noise in his graphic depictions of the machine shop noise.Similarly, the Secretary’s other expert, an acoustical consultant, Dr. Clayton Allen,testified that the hammer impacts did not add even a single decibel to the sound levelmeter readings he took in the machine shop; and that there was no measurable differencebetween readings taken while the forge shop hammers were operating and while the hammerswere stopped. The testimony of two witnesses, the industrial hygienist and machine shopemployee Kuder, also supported the view that the hammer impacts did not contributesignificantly to noise exposures in the machine shop.[[13]] Initially, the expert posited that impact noise from theforge shop was not \”too big a factor in exposure\” in the machine shop. However,he almost immediately revised his testimony. He testified that the impact noise levelsspilling over into the machine shop while it was shut down were \”certainly sufficientto elevate dosimeter readings.\” On cross-examination, the witness changed direction asecond time, testifying that impact noise \”may affect\” readings but the noisecreated in the machine shop itself was the \”cause of any overexposure.\” Thewitness again shifted on redirect examination, testifying this time that impact noisewould elevate the dosimeter readings perhaps \”two to three times.\”[[1\/]] Section 5(a)(2) of the Act requires:Each employer- ***shall comply with occupational safety and health standards promulgated under this Act.[[2\/]] Commission Rule 73(a); 29 CFR 2200.73(a). See also, forexample B & B Insulation, Inc. v OSHRC, 583 F.2d 1364 (5th Cir. 1978)[[3\/]] This conclusion is reached after reading, again andagain, the 3,000 plus pages of the transcript and almost 100 pages of briefs.[[4\/]]There is no question raised regarding his truthfulness,and I specifically note here that he testified to facts which he verily believed to betrue.[[5]] See Tr. pp. 956, 966, 967, 1065, 1066, 1336, 1337.[[6\/]] See Tr. pp. 520, 521, 522, 524, 835, 1113, 115[[7\/]] See Tr. pp. 844, 1076, 1205, 1206; 1177, 1178, 2858,2859[[8\/]] See Tr. pp. 1192-1193, 1361, 2913-2916, 2926-2927.[[9\/]] See Tr. pp. 898, 1341-1342.[[10\/]] See Tr. pp. 854, 1067.[[11\/]] See Tr. pp. 2863, 2866.[[12\/]] Perhaps the lunch area and rest room were quieter, butthe record does not disclose that, and it cannot. be presumed. [[13\/]] See Tr. pp. 554-555.[[14\/]] Respondent’s counsel argues that there may have been adeliberate tainting of the CO’s findings:\”He [the CO] could not verify that the noise levels shownon the dosimeters which were used to make the measurements during this inspection recordedonly the noise in the Respondent’s work place (T- 1169) and excluded horseplay ortampering with the instruments because he was too busy with other things to watch theemployees (T- 997, T-1074 to 1076, T-1133, T-1318). He admitted that compressed air wasused in the plant (T-1071), that ‘it could happen’ that employees would take these devicesand make noises in the dosimeters (T-1072) that ‘it could happen’ that employees mightwant to make the company look bad (T-1073), and that one thing which would do this wouldbe an OSHA noise citation against the company (T-1073), but he could offer no assurancethat it didn’t happen while his measurements were being made because: ‘I didn’t watch allthe employees every minute of the day’ (T-1072). Indeed, he rather candidly conceded that’I wasn’t there for the entire shift that the employees were there’ (T-1113).\”(Brief, p. 28)There appears to be no support in the record for such aconclusion, and counsel’s intense cross-examination of Complainant’s witnesses failed toestablish it as fact. I would discount it as a probability. [[15\/]] See Tr. pp. 1171-1172.[[16\/]] See Tr. pp. 1069, 1071, 2960. [[17\/]] See Tr. p. 1307 and Ex. R-3. [[18\/]] See Tr. p. 1079-1080.”