“SECRETARY OF LABOR,Complainant,v.HARMONY BLUE GRANITE CO., INC.,Respondent.OSHRC Docket No. 14189_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:As a result of a follow-up inspection of the tombstone and monumentproduction facility of Harmony Blue Granite Co., Inc. (\”Harmony\”) byrepresentatives of the Secretary of Labor (\”the Secretary\”), Harmony wasissued a notification of failure to correct a violation of the noisestandard at 29 C.F.R. ? 1910.95[[1\/]] in the hand blasting area and acitation for noncompliance with 29 C.F.R. ? 1910.1000[[2\/]] for failureto implement feasible administrative or engineering controls to reducethe excessive employee exposure to silica dust in the steel and stunroom.[[3\/]] Administrative Law Judge John S. Patton ruled that theSecretary had proved that Harmony’s employee in the hand blasting areawas exposed to noise exceeding the maximum level permissible undersection 1910.95. He further concluded that the Secretary hadestablished that Harmony had failed to implement all feasible measuresto reduce employee exposure to noise, and he therefore affirmed thenotification for failure to abate. With regard to the steel and stunroom, it was undisputed that there was employee exposure to silica dustin excess of the permissible limit set in section 1910.1000. JudgePatton concluded that the Secretary had shown that there was a feasiblemethod available for reducing employee exposure to silica dust in thatroom. The judge’s decision is before the Commission pursuant to section12(j), 29 U.S.C. ? 661(i), of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”). At issue on review is whetherthe judge erred in the above conclusions.Having reviewed the record and considered the arguments of the parties,we agree with Judge Patton’s conclusion that the Secretary establishedthat Harmony’s employee in the hand blasting area was exposed to noisein excess of that permitted by the cited standard. Judge Patton alsoconcluded that \”feasible\” methods were available to reduce the noiselevel in Harmony’s facility. In our recent decision in Sun Ship, Inc.,82 OSAHRC ___\/___, 11 BNA OSHC 1028, 1983 CCH OSHD ? 26,353 (No. 16118,1982), appeal filed, No. 83-3081 (3d Cir. Feb. 14, 1983), we discussedthe significance of economic factors within the meaning of the term\”feasible\” under section 1910.95(b)(1). In accordance with the decisionof the U.S. Supreme Court in American Textile Manufacturers Institute,Inc. v. Donovan, 101 S.Ct. 2478 (1981) (\”ATMI\”), the Commissionconcluded that \”feasible\” in section 1910.95(b)(1) means \”achievable.\” 11 BNA OSHC at 1032, 1983 CCH OSHD at pp. 33,420-21. We thereforeoverruled the cost-benefit test for interpreting the standard set forthin Continental Can Co., 76 OSAHRC 109\/A2, 4 BNA OSHC 1541, 1976-77 CCHOSHD ? 21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir.April 26, 1977), a decision issued after the hearing in the instant casebut before Judge Patton’s decision, and we substituted a test forfeasibility consistent with the Court’s decision in ATMI.In view of this intervening change in law, we set aside the judge’sdecision with respect to the alleged failure to abate violation. Weremand this case for further proceedings regarding the feasibility ofabatement, including evidentiary submissions, so that the interrelatedissues of technological and economic feasibility can be reconsidered inlight of the test of feasibility established by Sun Ship, Inc.With regard to the alleged violation of section 1910.1000, the partiesdispute whether the Secretary established the availability of feasiblemeans of reducing employee exposure to silica dust. Harmony contendsthat cost-benefit analysis must be used to determine the feasibility ofcontrols under section 1910.1000(e). We reject that argument. Therequirement for feasible engineering and administrative controls insection 1910.1000(e) parallels the requirement in section 1910.95(b). Based on our reasoning in Sun Ship, Inc., we conclude that \”feasible\”under section 1910.1000(e) means \”achievable\” and does not requirecost-benefit analysis.Harmony also contends that administrative or engineering controls areonly feasible within the meaning of section 1910.1000(e) if they arecapable of reducing employee exposure to air contaminants to withinpermissible limits. In Harmony’s view, personal protective equipment isthe only protection the standard requires when administrative orengineering controls cannot achieve the prescribed limits. We rejectthis contention as well. In Sun Ship, Inc., we recently reaffirmed theCommission’s holding in Continental Can Co., that, because section1910.95(b)(1) (see note 1 supra) expressly requires that administrativeor engineering controls be used in preference to personal protectiveequipment, controls that achieve a significant reduction in the noiselevel will be considered technologically feasible even if they do notresult in absolute compliance with the limits set in the noisestandard. 11 BNA OSHC at 1033 n.11, 1983 CCH OSHD at p. 33,422 n.11. In GAF Corp., 81 OSAHRC 29\/A2, 9 BNA OSHC 1451, 1981 CCH OSHD ? 25,281(No. 77-1811, 1981), appeal withdrawn, No. 81-4091 (2d Cir. Sept. 3,1981) the Commission stated:Section 1910.1000(e) contemplates that exposure to excessive levels oftoxic substances will be abated by engineering or administrativecontrols and that personal protective equipment will be used only in theevent that such controls are not feasible or fail to reduce levels tothe permissible limit. It is the Secretary’s burden to establish thatcontrols are technologically and economically feasible. A control istechnologically feasible if it can be adapted to the employer’soperation and is capable of producing a significant reduction inexposure to the particular toxic substance, in this case silvercompounds. See Samson Paper Bag Co., 80 OSAHRC, 8 BNA OSHC 1515, 1980CCH OSHD ? 24,555 (No. 76-222, 1980).9 BNA OSHC at 1455, 1981 CCH OSHD ? 25,281 at p. 31,244. Accordingly,section 1910.1000(e) has been interpreted by the Commission to beconsistent with the Commission’s interpretation of similar language insection 1910.95(b)(1). Those controls that significantly reduce thelevel of an air contaminant will be considered technologically feasibleeven if they do not reduce the level to the limit set in the standard. Personal protective equipment would thus be required to supplement thecontrols, but not replace them.In light of the new test for feasibility announced in Sun Ship, Inc., weset aside that part of Judge Patton’s decision in which he affirmed thecitation for excessive silica dust in the steel and stun room. Weremand this case for further proceedings on this issue, includingevidentiary submissions, so that the interrelated issues oftechnological and economic feasibility can be reevaluated under the newtest.[[4\/]]Accordingly, Judge Patton’s decision is set aside with respect to hisrulings that feasible means were available to reduce the excessiveemployee exposure to noise in the hand blasting area and to silica dustin the steel and stun room. This case is remanded to the ChiefAdministrative Law Judge [[5\/]] for further proceedings consistent withthis opinion.IT IS SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: MAR 24 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] The standard provides in pertinent part:? 1910.95 Occupational noise exposure.(b)(1) When employees are subjected to sound exceeding those listed inTable G-16, feasible administrative or engineering controls shall beutilized. If such controls fail to reduce sound levels within thelevels of Table G-16, personal protective equipment shall be providedand used to reduce sound levels within the levels of the table.Table G-16 lists the permissible sound levels for various daily exposuretimes.[[2\/]] The standard reads in pertinent part:? 1910.1000 Air contaminants.* * *(c) Table Z-3: An employee’s exposure to any material listed in tableZ-3, in any 8-hour work shift of a 40-hour work week, shall not exceedthe 8-hour time weighted average limit given for that material in the table.* * *(e) To achieve compliance with paragraph (a) through (d) of thissection, administrative or engineering controls must first be determinedand implemented whenever feasible. When such controls are not feasibleto achieve full compliance, protective equipment or any other protectivemeasures shall be used to keep the exposure of employees to aircontaminants within the limits prescribed in this section.Table Z-3 lists the 8-hour time weighted average limits for mineraldusts, including silica.[[3\/]] The citation also alleged that Harmony had failed to comply with? 1910.1000 in another room. The judge vacated that part of thecitation, and it is not before us on review.[[4\/]] Commissioner Cleary notes that during the hearing on this casethe Secretary moved for the production of all the financial records ofHarmony. Harmony’s counsel responded that Harmony was not claiming,nor would it later claim, financial inability to implement the abatementmethods suggested by the Secretary. Judge Patton subsequently deniedthe Secretary’s motion. Commissioner Cleary considers Harmony’s responseto the motion to constitute a waiver of any claim that the suggestedcontrols were not economically feasible. He therefore concludes thatthere is sufficient evidence in the record to consider the merits of theissues on review. However, in order to form a majority disposition inthis case, he joins in ordering a remand.[[5\/]] Judge Patton has retired from the Commission.”