“Docket No. 14189 SECRETARY OF LABOR, Complainant, v.HARMONY BLUE GRANITE CO., INC., Respondent.OSHRC Docket No. 14189DECISION Before:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners. BY THE COMMISSION:As a result of a follow-up inspection of the tombstone and monument production facility ofHarmony Blue Granite Co., Inc. (\”Harmony\”) by representatives of the Secretaryof Labor (\”the Secretary\”), Harmony was issued a notification of failure tocorrect a violation of the noise standard at 29 C.F.R. ? 1910.95[[1\/]] in the handblasting area and a citation for noncompliance with 29 C.F.R. ? 1910.1000[[2\/]] forfailure to implement feasible administrative or engineering controls to reduce theexcessive employee exposure to silica dust in the steel and stun room.[[3\/]] \u00a0Administrative Law Judge John S. Patton ruled that the Secretary had proved that Harmony’semployee in the hand blasting area was exposed to noise exceeding the maximum levelpermissible under section 1910.95.\u00a0 He further concluded that the Secretary hadestablished that Harmony had failed to implement all feasible measures to reduce employeeexposure to noise, and he therefore affirmed the notification for failure to abate. \u00a0With regard to the steel and stun room, it was undisputed that there was employee exposureto silica dust in excess of the permissible limit set in section 1910.1000. \u00a0 JudgePatton concluded that the Secretary had shown that there was a feasible method availablefor reducing employee exposure to silica dust in that room.\u00a0 The judge’s decision isbefore the Commission 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\”).\u00a0 Atissue on review is whether the judge erred in the above conclusions.Having reviewed the record and considered the arguments of the parties, weagree with Judge Patton’s conclusion that the Secretary established that Harmony’semployee in the hand blasting area was exposed to noise in excess of that permitted by thecited standard.\u00a0 Judge Patton also concluded that \”feasible\” methods wereavailable to reduce the noise level in Harmony’s facility.\u00a0 In our recent decision inSun 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 discussed the significance ofeconomic factors within the meaning of the term \”feasible\” under section1910.95(b)(1).\u00a0 In accordance with the decision of the U.S. Supreme Court in AmericanTextile Manufacturers Institute, Inc. v. Donovan, 101 S.Ct. 2478 (1981)(\”ATMI\”), the Commission concluded that \”feasible\” in section1910.95(b)(1) means \”achievable.\”\u00a0 11 BNA OSHC at 1032, 1983 CCH OSHD atpp. 33,420-21.\u00a0 We therefore overruled the cost-benefit test for interpreting thestandard set forth in 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 case but before Judge Patton’sdecision, and we substituted a test for feasibility consistent with the Court’s decisionin ATMI.In view of this intervening change in law, we set aside the judge’s decisionwith respect to the alleged failure to abate violation.\u00a0 We remand this case forfurther proceedings regarding the feasibility of abatement, including evidentiarysubmissions, so that the interrelated issues of technological and economic feasibility canbe reconsidered in light of the test of feasibility established by Sun Ship, Inc.With regard to the alleged violation of section 1910.1000, the parties dispute whether theSecretary established the availability of feasible means of reducing employee exposure tosilica dust.\u00a0 Harmony contends that cost-benefit analysis must be used to determinethe feasibility of controls under section 1910.1000(e).\u00a0 We reject that argument.\u00a0 The requirement for feasible engineering and administrative controls in section1910.1000(e) parallels the requirement in section 1910.95(b).\u00a0 Based on our reasoningin Sun Ship, Inc., we conclude that \”feasible\” under section 1910.1000(e) means\”achievable\” and does not require cost-benefit analysis.Harmony also contends that administrative or engineering controls are onlyfeasible within the meaning of section 1910.1000(e) if they are capable of reducingemployee exposure to air contaminants to within permissible limits.\u00a0 In Harmony’sview, personal protective equipment is the only protection the standard requires whenadministrative or engineering controls cannot achieve the prescribed limits.\u00a0 Wereject this contention as well.\u00a0 In Sun Ship, Inc., we recently reaffirmed theCommission’s holding in Continental Can Co., that, because section 1910.95(b)(1) (see note1 supra) expressly requires that administrative or engineering controls be used inpreference to personal protective equipment, controls that achieve a significant reductionin the noise level will be considered technologically feasible even if they do not resultin absolute compliance with the limits set in the noise standard.\u00a0 11 BNA OSHC at1033 n.11, 1983 CCH OSHD at p. 33,422 n.11.\u00a0 In GAF Corp., 81 OSAHRC 29\/A2, 9 BNAOSHC 1451, 1981 CCH OSHD ? 25,281 (No. 77-1811, 1981), appeal withdrawn, No. 81-4091 (2dCir. Sept. 3, 1981) the Commission stated:Section 1910.1000(e) contemplates that exposure to excessive levels of toxicsubstances will be abated by engineering or administrative controls and that personalprotective equipment will be used only in the event that such controls are not feasible orfail to reduce levels to the permissible limit.\u00a0 It is the Secretary’s burden toestablish that controls are technologically and economically feasible.\u00a0 A control istechnologically feasible if it can be adapted to the employer’s operation and is capableof producing a significant reduction in exposure to the particular toxic substance, inthis case silver compounds.\u00a0 See Samson Paper Bag Co., 80 OSAHRC, 8 BNA OSHC 1515,1980 CCH OSHD ? 24,555 (No. 76-222, 1980).9 BNA OSHC at 1455, 1981 CCH OSHD ? 25,281 at p. 31,244.\u00a0 Accordingly,section 1910.1000(e) has been interpreted by the Commission to be consistent with theCommission’s interpretation of similar language in section 1910.95(b)(1).\u00a0 Thosecontrols that significantly reduce the level of an air contaminant will be consideredtechnologically feasible even if they do not reduce the level to the limit set in thestandard.\u00a0 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., we setaside that part of Judge Patton’s decision in which he affirmed the citation for excessivesilica dust in the steel and stun room.\u00a0 We remand this case for further proceedingson this issue, including evidentiary submissions, so that the interrelated issues oftechnological and economic feasibility can be reevaluated under the new test.[[4\/]]Accordingly, Judge Patton’s decision is set aside with respect to his rulings thatfeasible means were available to reduce the excessive employee exposure to noise in thehand blasting area and to silica dust in the steel and stun room.\u00a0 This case isremanded to the Chief Administrative Law Judge [[5\/]] for further proceedings consistentwith this opinion.IT IS SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARYDATED:\u00a0 MAR 24 1983The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 in Table G-16,feasible administrative or engineering controls shall be utilized.\u00a0 If such controlsfail to reduce sound levels within the levels of Table G-16, personal protective equipmentshall be provided and 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 table Z-3, in any 8-hourwork shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limitgiven for that material in the table.* * *(e) To achieve compliance with paragraph (a) through (d) of this section, administrativeor engineering controls must first be determined and implemented whenever feasible. \u00a0When such controls are not feasible to achieve full compliance, protective equipment orany other protective measures 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 mineral dusts,including silica.[[3\/]] The citation also alleged that Harmony had failed to comply with ?1910.1000 in another room.\u00a0 The judge vacated that part of the citation, and it isnot before us on review.[[4\/]] Commissioner Cleary notes that during the hearing on this case theSecretary moved for the production of all the financial records of Harmony. \u00a0Harmony’s counsel responded that Harmony was not claiming, nor would it later claim,financial inability to implement the abatement methods suggested by the Secretary. \u00a0Judge Patton subsequently denied the Secretary’s motion. Commissioner Cleary considersHarmony’s response to the motion to constitute a waiver of any claim that the suggestedcontrols were not economically feasible.\u00a0 He therefore concludes that there issufficient evidence in the record to consider the merits of the issues on review. \u00a0However, in order to form a majority disposition in this case, he joins in ordering aremand.[[5\/]] Judge Patton has retired from the Commission.”