“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-2470 MEADVILLE FORGING COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 20, 1979ORDER??????????? The Secretary?s motion dated June 25, 1979, to withdrawhis Petition for Discretionary Review is Granted. The Judge?s Decision isaffirmed and is accorded the precedential value of an unreviewed Judge?sDecision, pursuant to the Commission?s Decision in Potlatch Corp., ??OSAHRC ??, 7 BNA OSHC 1370, 1979 CCH OSHD para. 23,549 (No. 77?3589, 1979) andcases cited therein.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: JUL 20, 1979\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-2470 MEADVILLE FORGING COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 February 14, 1979DECISIONAND ORDERChalk, Judge??????????? Respondent has moved for summary judgment on the groundthat Complainant, in his responses to requests for admissions, has concededthat he cannot carry his burden of proof.[*]??????????? This case involves a failure to abate notification, asamended, with a proposed additional penalty of $5,200, based upon areinspection that took place between February 2, 1978 any May 3, 1978. Thesingle item of the basic citation that Respondent is alleged not to have abatedreads as follows:29 CFR1910.95(b)(1): Employee(s) were subjected to sound levels exceeding thoselisted in Table G?16 of subpart G of 29 CFR part 1910 and feasibleadministrative or engineering controls were not utilized to reduce sound levelswithin those of the table:(a) Forgers,forger helpers, furnace heater and rotoblast operator working in the PressDepartment.?(b) Forgers andforger helpers working in the Hammer Shop.?(c) Cleveland andadvance operators working in the Shear Department.(Emphasis added.)???????????? Final abatement was to have been accomplished by November4, 1977.??????????? Referring to that portion of the foregoing basic chargethat alleges that Respondent had failed to utilize feasible administrative orengineering controls to reduce the sound levels to which its employees wereexposed to within allowable ones specified in the standard?s table, Respondent,in part, presents a twofold argument: (1) that the standard does not requirethat such controls reduce excessive levels to those within the table, and (2)that Complainant, by his responses to requests for admissions, concedes that heknows of no administrative or engineering controls that will accomplish thatwhich the basic citation requires.??????????? The standard does indeed read as Respondent claims:When employees aresubjected to sound exceeding those listed in Table G?16, feasibleadministrative or engineering controls shall be utilized. If such controls failto reduce sound levels within the levels of Table G?16, personal protectiveequipment shall be provided and used to reduce sound levels within the levelsof the table.\u00a0??????????? Moreover, an examination of Complainant?s responses tothe request for admissions confirms Respondent?s other assertion thatComplainant knows of no administrative or engineering controls that willaccomplish the result required by the basic citation.??????????? As the basic citation had become a final order of theCommission, there can be no doubt that the form of that charge cannot now bealtered and that it is the only charge on which the present failure to abateproceeding stands or falls (see Secretary of Labor v. B. W. Harrison LumberCo., et al., 569 F.2d 1303 (5th Cir., 1978)).??????????? As Complainant bears the burden of proving thatadministrative or engineering charges are feasible (Secretary v. ContinentalCan Co., Inc., 76 OSAHRC 109\/A2), and he now admits that he cannot carrythis burden in connection with the failure to abate notification, saidnotification must be vacated.??????????? Respondent?s motion for summary judgment is granted andNotification of Failure to Correct Alleged Violation and of Proposed AdditionalPenalty, as amended, is vacated.?So ORDERED.?JOSEPH L. CHALKJudge, OSHRCDated: FEB 14, 1979Hyattsville, Maryland[*] Although grantedan extension until January 6, 1979 to respond to the motion, Complainant didnot file a response until January 17, 1979. Said response does not appear toaddress the issue raised. The Union has filed no response.”