“SECRETARY OF LABOR,Complainant,v.MORRISON-KNUDSEN, INC.,Respondent.OSHRC Docket No. 80-0345_DECISION_Before: BUCKLEY, Chairman; WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).The issue is whether Morrison-Knudsen, Inc., violated the OSHA standardat 29 C.F.R. ? 1926.52(a) because certain employees were not wearingequipment to protect against excessive noise.[[1]] Administrative LawJudge Barbara Hassenfeld vacated the item, finding that the Secretaryhad not proven that Morrison-Knudsen’s employees lacked protection fromexcessive noise for a longer period of time than the standard permits. We affirm her decision.During 1979, Morrison-Knuden was a contractor for the construction ofthe Seabrook Nuclear Power Plant in New Hampshire. The company wasresponsible for the construction of two tunnels under Hampton Bay. Todig the tunnels, material was excavated using a large tunneling machine,or \”mole.\” Railroad tracks ran through the sections of tunnel that hadalready been dug. Railroad cars running on tracks transported workersand equipment to the area in which the mole was working; they alsotransported moled rock away from the digging area.On October 30, 1979, an OSHA compliance officer inspected the worksite. Using a sound level meter, he measured noise levels of 96 to 106 dBA onthe railway in a tunnel. On December 13, he returned to the worksite tomeasure the amount of noise to which employees were exposed. On thatdate, personal noise dosimeters were worn by six Morrison-Knudsenemployees during their work shifts. The compliance officer also tooksound level meter measurements at various locations on the worksite. Because the dosimeter readings showed excessive noise exposures and thecompliance officer observed certain employees not wearing hearingprotective equipment, the Secretary issued a citation alleging thatMorrison-Knudsen violated section 1926.52(a).Section 1926.52 provides in part:? 1926.52 _Occupational noise exposure._(a) Protection against the effects of noise exposure shall be providedwhen the sound levels exceed those shown in Table D-2 of this sectionwhen measured on the A-scale of a standard sound level meter at slowresponse.(b) When employees are subjected to sound levels exceeding those listedin Table D-2 of this section, feasible administrative or engineeringcontrols shall be utilized. If such controls fail to reduce soundlevels within the levels of the table, personal protective equipment asrequired in Subpart E, shall be provided and used to reduce sound levelswithin the levels of the table.(c) If the variations in noise level involve maxima at intervals of 1second or less, it is to be considered continuous.(d)(1) In all cases where the sound levels exceed the values shownherein, a continuing, effective hearing conservation program shall beadministered.TABLE D-2 — PERMISSIBLE NOISE EXPOSURESDuration per day, hours Sound level dBA slow response8 ……………………………………906 ……………………………………924 ……………………………………953 ……………………………………972 ……………………………………1001 1\/2 ………………………………1021……………………………………. 1051\/2…………………………………. 1101\/4 or less………………………… 115(2)(i) When the daily noise exposure is composed of two or more periodsof noise exposure of different levels, their combined effect should beconsidered, rather than the individual effect of each. Exposure todifferent levels for various periods of time shall be computed accordingto the formula set forth in paragraph (d)(2)(ii) of this section.(ii)Fe=(T_1 \/L_1 )+(T_2 \/L_2 )+…+(T_n \/L_n )where:Fe=The equivalent noise exposure factor.T=The period of noise exposure at any essentially constant level.L=The duration of the permissible noise exposure at the constant level(from Table D-2).If the value of Fe exceeds unity (1) the exposure exceeds permissiblelevels.The personal noise dosimeters that the compliance officer used tomeasure noise exposures are devices that continually measure soundlevels and automatically apply the cumulation formula in section1926.52(d)(2)(ii). The dosimeter calculates Fe, the equivalent noiseexposure factor, and expresses the result of its calculation in terms ofthe percentage of the permitted noise exposure. A dosimeter reading ofmore than 100% means that Fe is greater than one, which in turn meansthat the permissible daily noise exposure has been exceeded. _See__generally_ _New England Container Co_., 84 OSAHRC 55\/A2, 12 BNA OSHC1368, 1371 n.7, 1984-85 CCH OSHD ? 27,148, pp. 35,045-46 n.7 (No.78-1539, 1984).All six dosimeters that the compliance officer attached toMorrison-Knudsen employees yielded readings exceeding 100% during theemployees’ work shifts. However, Morrison-Knudsen provided personalhearing protection equipment to its employees, and most of the employeeswho were observed by the compliance officer were wearing the equipment,including four of the employees whose noise exposure was measured withdosimeters. The Secretary does not argue that the equipment was notadequate to protect those employees. Thus, the Secretary’s allegationreduces to whether Morrison-Knudsen violated the standard with respectto the two employees who were observed to be without hearingprotection. Those two employees were John Shields and SterlingGrondin. Both were motormen who drove locomotives back and forththrough the tunnels to the moling area.The compliance officer placed a dosimeter on Shields at 2:34 p.m.,immediately before the start of his shift, and removed it at 10:40 p.m.,at the end of the shift. The dosimeter read 346% at the end of theshift, indicating that Shields received about three and one-half timesthe permissible dose of noise. Around 5:30, the compliance officer rodeon the locomotive that Shields was operating and measured the noise witha sound level meter. With the locomotive stationary, he measured anoise level of 97 dBA. With locomotive moving down the track, the noiselevel was 104 to 105 dBA. Around 9:30, the compliance officer observedthat Shields was not wearing hearing protection.[[2]] He again observedShields without hearing protection at the end of the shift, as Shieldswas preparing to leave the tunnel.The compliance officer attached a dosimeter to Grondin at 2:32 p.m. andremoved it at 11:15 p.m. It read 217%, indicating that Grondin receivedover twice the permissible noise dose. The compliance officer observedthat Grondin was not wearing hearing protection when he removed thedosimeter. The compliance officer asked Grondin whether he worehearing protection and, according to the compliance officer, Grondinreplied that he did not because he likes to be able to hear the machinery.We conclude that this evidence is insufficient to prove thatMorrison-Knudsen violated the standard. We first note that the standarddoes not require that protective equipment always be worn when noiselevels are between 90 and 115 dBA. Table D-2 lists permissible times ofexposure for this range of noises levels. For example, an employee whoworks for eight hours in an area where the noise level is 95 dBA maywork for four hours without hearing protection and still comply with thestandard by wearing protective equipment the remainder of the time.The dosimeter readings for Shields and Grondin show their cumulativenoise exposure throughout the day but do not show for how long they wereexposed to any particular noise level. Thus, the dosimeter readings donot show the length of time that Shields and Grondin were required bythe standard to wear protective equipment. They show only that ifShields and Grondin never wore protective equipment at all during thesampling period, a violation of the standard occurred. Although soundlevel readings were also taken, the Secretary introduced no evidencethat any particular level continued for a particular period of time. Itis therefore not possible on this record to say that Shields and Grondinwere required to wear protective equipment for any particular period oftime. The record must therefore show that they were not wearingprotective equipment for the entire time they wore noise dosimeters.All the record shows as to Shields is that the compliance officerobserved him without protective equipment for at most four minutesduring Shields’ shift and momentarily at the end of the shift, asShields was preparing to leave the tunnel. The Secretary would have usinfer from this that Shields never wore protective equipment during hisshift. We decline to draw such an inference. Personal hearingprotection equipment–earplugs or earmuffs–is easily put on andremoved, and some people find the equipment uncomfortable when wornconstantly. Thus, an employee may well choose to wear the equipmentduring only part of the day. In particular, the employee may wear theequipment when the noise level is high when the noise level is high, atwhich times the need for the equipment is most obvious, and remove theequipment when the noise level is relatively low. Such a procedure ispermitted by the standard, which allows the employee to be unprotectedfor some time at all noise levels below 115 dBA and for a relativelylarge percentage of an eight-hour workday at the lower range of thenoise levels listed in Table D-2 of the standard. Thus, where theemployer makes protective equipment available for employees’ use,evidence that an employee did not wear such equipment for a few minutesduring the day does not suggest that the employee never wore theequipment during the entire day. The preponderance of the evidencetherefore does not support a finding that Shields was exposed toexcessive noise levels while unprotected by personal protective equipment.The compliance officer observed Grondin without hearing protection onlymomentarily, at the end of Grondin’s shift. For the reasons juststated, this observation does not prove Grondin failed to wear hearingprotection during the entire day. The only evidence tending to showthat Grondin did not wear protection during his entire shift is thecompliance officer’s testimony that he asked Grondin whether he worehearing protection and that Grondin replied he did not because he likedto be able to hear the machinery.Morrison-Knudsen argues that we should not rely on this evidence becauseit is hearsay. We put to one side whether this evidence should betechnically classified as hearsay. See Fed. R. Evid. 801(d)(2)(D)(out-of-court declarations by employees concerning matter within scopeor employment classified as non-hearsay rather than exception to hearsayrule). Whether evidence should be classified as non-hearsay for thepurpose of determining its admissibility bears little relation to itsvalue to support the Secretary’s case. We therefore note that even ifthis testimony might be classified as non-hearsay for the purpose ofdetermining its admissibility, its weight must be determined after itshearsay nature is taken into account.Grondin’s statement is an out-of-court declaration offered to prove thetruth of the matter it contains. Its weight depends on such factors aswhether the question was put to Grondin conversationally and answeredcasually without recognition of its import, as well as on Grondin’spropensity to tell the truth, the compliance officer’s ability tocorrectly appreciate Grondin’s words, and his relaying them accuratelyto the administrative law judge. A declaration that is introducedthrough another’s testimony inherently has less probative value than thedelcarant’s own testimony. When an out-of-court statement isintroduced, the trier of fact has no opportunity to assess thecredibility of the person who made the statement and must thereforeallow for the possibility that the statement is exaggerated, incomplete,taken out of context, or even false. Also, neither the other party northe judge has an opportunity to cross-examine the person who made thestatement. The only person able to evaluate the statement’s credibilityis the person who heard the statement and is testifying to itscontents. These considerations suggest that out-of-court statementscannot always be taken at face value.On its face, Grondin’s statement tends to show that he did not wearhearing protection during the entire time he wore the dosimeter.However, other possibilities also suggest themselves. Even if Grondinhad worn hearing protection for much of his shift, he may have felt hehad done something wrong when he was observed by the compliance officerwithout hearing protection; therefore he may have thought it necessaryto offer an excuse for not wearing the protection. Or, it is possiblethat Grondin spoke facetiously to the compliance officer when he said hedid not wear hearing protection because he \”likes to be able to hear themachinery.\” The compliance officer’s only personal observation ofGrondin’s not wearing hearing protectors came at the end of Grondin’sshift, after Grondin would probably have removed the hearing protectorsif he had been wearing them, and thus is of little corroborative value.We also note that Judge Hassenfeld, who was in a somewhat betterposition to judge than we are, was evidently unimpressed with thecompliance officer’s testimony concerning Grondin. On balance, we thinkthe compliance officer’s testimony leaves substantial uncertainty overwhether Grondin never wore hearing protection.We also note that the Secretary could have presented stronger evidenceon the point. He could have attempted to definitively establish thatGrondin did not wear hearing protection through discovery, such as arequest for admission.[[3]] If unable to establish the point throughdiscovery, he could have produced Grondin to testify. The Secretarybears the burden of proving a violation by the preponderance of theevidence. Like Judge Hassenfeld, we are not persuaded that he carriedthat burden here.[[4]]We conclude that the Secretary did not present sufficient evidence tomeet his burden of proving that Shields and Grondin did not wear hearingprotection on the day of the alleged violation. Accordingly, item 1A ofthe citation is vacated.[[5]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: March 3, 1987————————————————————————SECRETARY OF LABOR,Complainantv.MORRISON-KNUDSEN COMPANY,RespondentOSHRC NO. 80-0345Appearances: For Complainant,Albert H. Ross, Regional SolicitorU.S. Department of LaborFor Respondent,Robert D. Moran, Esq.Moran & Chaplin_STATEMENT OF PROCEEDINGS:_On December 28, 1979, Respondent was issued a Serious citation and aproposed penalty of $700.00. Respondent contested both. Trial was heldfor seven days in Boston, Massachusetts.The relevant regulations are:1A. 29 C.F.R. 1926.52(a):Protection against the effects of noise exposure shall be provided whenthe sound levels exceed those shown in Table D-2 of this section whenmeasured on the A-scale of a standard sound level meter at slow response.The citation alleges \”Seabrook Station Tunnels–Employees were notwearing hearing protection such as motor men, car pass operators andothers in the work area of the mole.\”1B. 29 C.F.R. 1926.52(b):When employees are subjected to sound levels exceeding those listed inTable D-2 of this section, feasible administrative or engineeringcontrols shall be utilized. If such controls fail to reduce soundlevels within the levels of the table, personal protective equipment asrequired in Subpart F, shall be provided and used to reduce sound levelswithin the levels of the table.The citation alleges \”Seabrook Station Tunnels–Motormen, brake men,mole operator, rock drillers, car pass operator.\”1C. 29 C.F.R. 1926.52(d)(1)In all cases where the sound levels exceed the values shown herein, acontinuing, effective hearing conservation program shall be administered.This regulation was substituted for 29 C.F.R. 1910.95(b)(3) by actionallowed August 18, 1980.The citation alleges \”Seabrook Station Tunnels–No audiometric testingfor overexposed employees.\”_ISSUES AND JURISDICTION_:The Respondent engages in interstate commerce within the meaning of theOccupational Safety and Health Act of 1970. It did not contest thejurisdiction of the Commission over the instant matter; therefore, theCommission assumes that jurisdiction by law. The issues before theundersigned judge concern whether or not the Respondent violated theregulations as alleged._EVIDENCE_Mr. David C. May, a compliance officer for the United States Departmentof Labor, Occupational Safety and Health Administration (OSHA) was theComplainant’s first witness. (Tr. 20) He is an industrial hygienist(Tr. 21) and he visited the Seabrook Power Station, Seabrook, NewHampshire, on October 30, 1979 (Tr. 24) and October 31, 1979 (Tr. 24)and inspected the tunnels. (Tr. 26)Mr. May took an elevator down into a cavern opening to get to thetunnels which were approximately two hundred fifty feet below thesurface and about one mile long. (Tr. 26) On October 30, 1979, therewas no moling (excavating), but Mr. May rode the locomotive out to themole site. (Tr. 26-27) Upon his return on October 31, 1979, hecontinued his inspection. (Tr. 27) On that date, he conducted somescreening gas tests and noise tests in both tunnels (Tr. 28). The molewas not operating at the time but the locomotive was. (Tr. 28). Forthe noise screening tests he used a Type Two General Radio sound levelmeter which gave him an instantaneous look at the noise level. (Tr. 29) He performed those tests to determine whether further sampling wasneeded on the trailing section of the mole. (Tr. 29-30) He informedthe Respondent of his desire to take full shift samplings. (Tr. 31)He returned to the work site on November 30, 1979 (Tr. 31), took somesamplings (Tr. 50), and arranged to return on December 4, 1979. Theemployee sampled on November 30, 1980, was not overexposed. (Tr. 50-51) Due to a fatality, the inspection was postponed until December 13,1979. (Tr. 51-52) On the latter date, the sampling was of the secondshift in Tunnel 173. (Tr. 52) After calibrating his dosimeters in theRespondent’s (Mr. Jones’) office, Mr. May requested employees fromTunnel 173 that included two locomotive drivers, a car pass operator, amole operator, a rock driller and a brakeman (Tr. 53) so that he couldobtain noise samples. (Tr. 65) He used two instruments to measure thenoise exposure, i.e., a dosimeter which records the intensity andduration of noise as well as a General Radio Type 1 sound level meter,which gives instantaneous readings at any one spot as to how loud itis. (Tr. 65-66) The dosimeter records on the A scale and perceivesnoise similar to that of an ear whereas the sound level meter measureshow loud noise is at certain frequences. (Tr. 65-66)On December 13, 1979, he attached dosimeters to a locomotive driver anda car pass operator in tunnel 173 by placing the instrument in thewearer’s belt and running the wire up to the collar where the microphonewas attached. (Tr.67) This procedure was used in order to get as closeas possible to the employee’s hearing zone. (Tr. 67) Mr. May alsotook readings with a hand sound level meter (Tr. 69, 76-77) while ridingright behind the locomotive driver and obtained a decibel (DBA) readingof 105 which he opined was \”fairly high\”. (Tr. 73, 77) The driver tookabout twelve round trips daily per shift, each one-way trip lastingapproximately five minutes. (Tr. 73) Mr. May testified that theemployee was not wearing hearing protection. (Tr. 76) He was primarilyin tunnel 173 (Except for 1 employee tested in tunnel 174) during thefull shift and made visual walk arounds, took sound level meter readingsas well as gas and dust readings. (Tr. 101) He recorded results aboutonce per hour. (Tr. 101) He testified to a dosimeter reading of 217percent (Exhibit C-8) over a period of more than eight hours for thedriver of a locomotive in tunnel 174 (Tr. 102-103), but admitted thatthere is a 30-32 percent error factor. (Tr. 103) He stated that anemployer is not cited unless a reading is greater than 132 percent so asto allow for the margin of error. (Tr. 103)He sampled the brakeman, Warren Kimball (Exhibit C-10) and the resultswere 378.1 percent of the OSHA standard. (Tr. 115-117) On ExhibitC-12, he recorded a 250.3 percent exposure in 5 hours 24 minutes toRonnie Deheitas, the mole operator in Tunnel 173. (Tr. 118, 127, 129,135) On December 13th, he also sampled for about 5 hours Leo Paradis,the car pass operator in Tunnel 173 (Exhibit C-14) and recorded 150percent of the OSHA standard (Tr. 137, 144, 146, 147).Exhibit C-16 showed 304.8 percent of the OSHA standard as a result of 8hours of sampling on December 13th of John J. Shield’s Jr., the motormanof Tunnel 173 (Tr. 150, 152). Exhibit C-18 recorded 999 percent for a 5hour sampling on December 13th of George Demers, a rock driller inTunnel 173.Mr. May testified that he observed Vic Allard, the walker (foreman) onthe mole without hearing protection as well as an electrician andcarpenter. (Tr. 105-107, 150, 152, 232, 240, 242, 257, 258 and ExhibitC-21). As a result of his inspection, Mr. May recommended that the overexposed employees have hearing protection, that feasible engineeringcontrols and a hearing conservation program be instituted. (Tr. 268) He also recommended that a serious citation be issued because \”noiseinduced hearing loss is a permanent loss of hearing, which cannot berecovered…\” (Tr. 268) When looking at factors considered for proposedpenalty he indicated that he found that the Respondent employed morethan 100 people, did not have a previous history of prior violationswithin his area office, and showed a willingness to assure employeeswould wear hearing protection. (Tr. 271)Regarding item 1A of the serious citation, the personal protectiveequipment required by Mr. May was available on site so an abatement dateof immediately was selected. (Tr. 275-276) As to Item 1B, herecommended a period of two months (Tr. 276-278) in order for theRespondent to submit its plan for abatement and another two months tofurnish the preliminary surveys indicating which feasible engineering oradministrative controls to use. (Tr. 278) Mr. May testified that hechose time frames based on his previous experience in noise cases. (Tr. 279) As to actual implementation of feasible administrative orengineering controls, he felt that six months from the time of theissuance of the citation would be reasonable, as it would be two monthsafter the engineering reports were completed. (Tr. 279) He admittedthat the latter date was difficult to pinpoint, acknowledging possibleproblems with contractors, etc. (Tr. 280, 282)He discussed enclosing the car pass operator’s work station (ExhibitC-28) the hydraulic motor noise source and the costs of such enclosure. (Tr. 282, 283, 288) Mr. May testified that his research had indicatedit would be technically feasible to place a booth around the car passoperator and that estimated cost would be $3,000.00 for two booths. (Tr. 289-290) As for the mole operator in tunnel 173, he indicated thata booth could be installed (Tr. 296-297, Exhibits C-25, C-26), andestimated the material cost per booth to be $1,900.00 (Tr. 298). Hestated that a theoretical reduction of about 35 decibels was predictedfor his proposal as regards to the mole operator. (Tr. 300) Histestimony concerning noise reduction for the rock drillers indicated theuse of mufflers, muffler jackets and\/or dampening materials. (Tr. 301),and Exhibit C-33 was introduced to demonstrate feasibility of suchcontrols for drills. (Tr. 307, 311)Exhibit C-34 depicts a locomotive at the site (Tr. 315) and Mr. Maysuggested installing a cab over where the operator and brakeman ride orenclosing the transmission. (Tr. 316-317) The cab should, according tothe witness, be made from noise reduction materials (Tr. 316), and hedidn’t believe the operation of the locomotive would be obstructed bythe cab but had no knowledge as to the effect of enclosing thetransmission on the operation. (Tr. 317) The estimated cost of theenclosure would be $1,150.00 per locomotive. (Tr. 319)As to item 1C of the serious citation, which concerned the hearingconservation program he recommended thirty days for abatement andrequired a four point program including base line audiograms forover-exposed employees. (Tr. 320, 325, 326) The guidelines he usedcame from the Industrial Hygiene Field Operations Manual. (Tr. 322,Exhibit C-35)On cross examination, Mr. May admitted that all employees except thosein booths or enclosures would have to wear hearing protection. (Tr.383) He also testified that the type of hearing plugs he wore at thetime of the inspection afforded him insulation of 30-40 decibels,according to the manufacturer and that there were ways to actuallyverify that. (Tr. 385) The cost of the plugs was about thirty centsper pair (Tr. 387), and they were effective in reducing the noise (Tr.392) but that he was concerned that employees might not wear them dailyor properly. (Tr. 391) He stated that they could become dirty from theenvironment so an employee might be tempted to throw them out after aday’s use although they could be cleaned and reused. (Tr. 392-393). The proposed booths had at best a theoretical estimate of 35 decibelreduction, which was about the same protection afforded by the earprotectors he wore. (Tr. 384, 389) He had no information nor could heobtain any regarding the actual decibel reduction that would be obtainedby the use of such booths. (Tr. 385, 386)As to commercially produced ear muffs, Mr. May indicated that theresultant reduction could be as much as 50 decibels, the cost would beabout ten to fifteen dollars, and they would last for the duration ofthe project. (Tr. 395-396) He admitted that not only would theyreduce noise to a greater degree than the proposed enclosure but thatthe cost would be considerably less. (Tr. 396, 398)While conducting his inspection, Mr. May wore a raincoat and work bootsas the tunnels are wet with constant moisture in the air. (Tr. 402-403) His testimony indicated that the OSHA Industrial Hygienist FieldOperations’ Manual warned that the dosimeters would perform accuratelyas long as moisture does not condense or deposit on the microphonediaphragm. (Tr. 407) For the noise samplings, the microphone wereplaced on the six employees’ collars but not covered by theirraincoats. (Tr. 408, 415) Normally the best placement of themicrophone would be the center of the shoulder in order to pick up noisecoming up from behind, in front and to the side (Tr. 412); however, heplaced the microphones on the collar in order to protect them from waterdripping in the tunnel, which placement admittedly was not the optimumlocation. (Tr. 413)He testified that dosimeters don’t record until the noise level is above90 decibels (Tr. 760-764) and a 2 decibel margin of error is allowed(Tr. 963) If the diaphragm of the microphone got wet, it would lowerthe results (Tr. 967-968) and the fact that the site was 258 feet belowsea level only meant a difference of 0.34 decibels (Tr. 973).Mr. May stated that out of the 330 Morrison-Knudsen employees at thesite, he saw 3 without hearing protection on December 13, 1979 (Tr.496-497). He made no inquiries as to whether or not the Respondentprovided hearing protection, (Tr. 498-500); however, Mr. David stated tohim that they were available in various locations. (Tr. 500-501). Mr.May’s contention in citing the Respondent was that it did not insurethat the employees wore them in high noise areas (Tr. 502-518) and hesuggested that a person be responsible for that. (Tr. 504) Hetestified that the fact that some employees wore hearing protection andothers did not indicated to him there were deficiencies in the safetyprogram but admitted he didn’t know about the program. (Tr. 518-520) The basis for his opinion that there was improper supervision restedsolely on the fact that he saw Vic Allard, the walker supervisor, notwearing them (Tr. 521) Mr. May suggested periodic audiometric testingfor overexposed employees. (Tr. 547, 555, 557-559)Mr. Jerry Antel, an engineering technician with the Mine Safety andHealth Administration (Tr. 1041) renders assistance to the miningindustry to reduce noise exposure (Tr. 1042). He analyzes a problemfrom the health and engineering aspects (Tr. 1042). His experienceincluded evaluating a diesel locomotive similar to the one used at theRespondent’s work site at the time of the inspection and found that thetransmission was the primary noise source. (Tr. 1049) He stated thatan enclosure was actually installed around the transmission with noiseabsorption materials resulting in about 8-10 decibel reduction whichbrought it within the allowable limits. (Tr. 1050, 1051, 1068) Inorder to know the actual absorption materials needed, tape recordings ofthe noise would have to be made. (Tr. 1094)Mr. Antel opined that the major source of noise for the drills used atthe Respondent’s site was the exhausting air and the attachment of abody muffler would achieve a 7-8 decibel reduction. According to him,there was no freezing encountered nor any significant drillingrestriction from the body muffler. (Tr. 1331) Regarding the boothsfor the locomotives and car pass operator, Mr. Antel testified that thewindow could be slanted to be closer at the bottom then at the top (Tr.1333) and it should be made of lucite. (Tr. 1335)Mr. Orville Jones, the senior safety supervisor for the Respondent atthe site (Tr. 1122) testified that the built-in circulatory system wouldbe destroyed if the car pass (Tr. 1181) or mole operator were enclosed(Tr. 1168-69), and that the use of air conditioning would not bepossible due to the electrical capacity in the tunnel. (Tr. 1170-71) He cited visual problems due to mud and scratching of the enclosure (Tr.1175) and clearance problems on the locomotives. (Tr. 1185, 1189,1193, 1267, 1269). He complained of diminished efficiency if mufflerswere put on the drills. (Tr. 1199)._DISCUSSION_The Secretary of Labor bears the burden of proving the existence of aviolation by a preponderance of the evidence. _Astra_ _PharmaceuticalProducts, Inc._, 9 BNA OSHC 2126 (1981). In the case at hand, theSecretary must prove that administrative or engineering controls forreducing employee exposure are technically and economically feasible. _Secretary of Labor v. Continental_ _Can Company_, 4 OSHC 1541, 1548(1976). The cost benefit test enunciated by the Commission appears tostill be the law for noise cases, see _Continental Can Company_,_supra_, despite the United States Supreme Court decision in _AmericanTextile_ _Manufacturers Institute Inc_. _et al v. Donovan et al_ (June17, 1981) which ruled on the interpretation of Section 6(b)(5) of theOccupational Safety and Health Act (29 U.S.C. Section 655(b)(5).To determine whether something is technologically feasible, there mustexist a type of control capable of producing a significant reduction innoise exposure in the Respondent’s workplace and the Secretary must showthat such technology could be adapted to the employer’s workplace. _Secretary of Labor v. Samson Paper Bag Company, Inc._, 8 OSHC 1515(1980). There is no duty on each employer to research and develop newtechnology, _American Iron and Steel Institute et al v. OSHA_, 6 OSHC1451, 1461 (1978). A Respondent is only in violation of the standard ifit fails to implement technological controls feasible at the time it wascited, see _Samson Paper Bag Company, Inc._, supra at 1519.\”The standard provides that administrative or engineering controls shallbe the preferred means of compliance, with personal protective equipmentto be used if such controls are not \”feasible\” or if the controls thatare feasible cannot achieve full compliance.\” _Samson Paper BagCompany, Inc_. supra at 1518, see also _Secretary of Labor v. TurnerCorp_., 4 OSHC 1554, 1557 (1976). In the _Samson Paper Bag_ case, theemployees were wearing earplugs capable of reducing noise exposure towithin the permissible exposure levels.The use of personal protective devices which in fact reduce the noiseexposure to within allowable limits can not excuse the employer from itsresponsibility to adhere to technological advances if they exist but useof the devices must be considered to determine whether the resultantharm will be serious or nonserious. In the instant case, the testimonyis uncontroverted that such devices exist and are available and in useat the Respondent’s workplace in issue; therefore, the harm that couldresult here is non-serious.The Respondent raises the issues of the proper use of the dosimeters andthe time lapse of their use after sound level tests were taken. Thetestimony reveals that there were no sound level tests performed at thetime the dosimeters were placed on the employees and the Respondentquestions the reliability of the dosimeter readings because thecompliance officer did not constantly watch the employees to know if thereadings resulted from the particular work stations for which theSecretary wants engineering controls or from other locations. Furthermore, the Respondent raises the issue of readings taken for lessthan eight hours and refers to _Secretary of Labor v. Gannett RochesterNewspaper Corporation_ 9 OSHC 1590 (1981) to support his contention. Inthe latter case, dosimeters weren’t used in conjunction with the soundlevel meters and the compliance officer failed to keep the employeesunder constant control. Certainly there are problems in this instantcase for requiring engineering controls for the mole operators, car passoperators and locomotive drivers. In one instance, the complianceofficer didn’t even observe the employee at work. There are furtherproblems that arise due to the lack of technological feasibility of theitems proposed or \”suggested\” by the Secretary for those work stations. There was no evidence that indicated that such booths would be feasibleor effective in the Respondent’s workplace. The compliance officer hadnever before inspected such a tunnel and Mr. Antel’s testimony on thatpoint was tenuous. This can be distinguished however from Mr. Antel’stestimony which referred to his experience with comparable use ofsimilar drills and the availability of mufflers for those drills toreduce noise levels. His answers to problems that could arise from theuse of mufflers certainly indicate they are technologically andeconomically feasible in the instant case, and the compliance officer’stestimony for that violation is credible and reliable. The testimonyadduced revealed that the noise levels to which the Respondent’s rockdrillers were exposed exceed the permissible levels and that theemployer knew or with the exercise of reasonable diligence could haveknown those facts.The Secretary’s testimony consisting of the compliance’s officersobservation of a few employees without hearing protection does not meetthe burden of proof that those employees were exposed for the timerequired to any levels that exceed the requirements of Table D-2.The last part of the citation (Item 1C) concerns the hearingconservation program and the Respondent has raised the issue that thestandard is constitutionally vague as it does not provide proper noticeto the employer of what’s required. The alleged violation of 29 C.F.R.1926.52(d)(1) is identical to 29 C.F.R. 1910.95(b)(3) which standard wasrecently declared by the Seventh Circuit in _Kropp Forge Company v.Secretary of Labor and OSHRC_, 9 OSHC 2133, 2134, (August 14, 1981) tobe unenforceably vague. The court stated that this was so because thestandard did not provide \”fair warning\” of what is required or prohibited.The Seventh Circuit referred to the United States Supreme Court decisionin _American Textile Manufacturers Institute Inc. v_. _Donovan_, _supra_and reiterated the predicate for agency action\”. The _Kropp Forge_ caseat 2135 noted that on January 16, 1981 OSHA removed the one-sentencestandard at issue and replaced it with a new regulation which thusacknowledged that the elements required by the Secretary in _KroppForge_ were not previously included in the standard cited. Thisreasoning is completely applicable to the instant case; thus, 29 C.F.R.1926.52(d)(1) must be found to be unenforceably vague._FINDINGS OF FACT_1. Compliance Officer David C. May made a duly authorized and properinspection of the Respondent in the instant case at the Seabrook PowerStation, Seabrook, New Hampshire.2. The Respondent is found to have been engaged in tunnel constructionat the time of the inspection.3. The Respondent is found to have contested Items 1A, 1B and 1C of theSerious citation.4. The Respondent is found to be a large company.5. At the rock drillers work stations, the said employees were exposedto noise levels exceeding those permitted by Table D-2.6. The Respondent knew, or with the exercise or reasonable diligencecould have known that the noise levels were excessive at the rockdrillers’ work stations.7. Use of mufflers of drills for the violation of Item 1B is found tobe required and to be economically and technologically feasible._CONCLUSIONS OF LAW_1. At all times relevant herein, the Respondent has been engaged in abusiness affecting commerce within the meaning of Section 3 of theOccupational Safety and Health Act of 1970.2. The Respondent was, at all times relevant hereto, subject to therequirements of the Occupational Safety and Health Act of 1970 and theStandards promulgated thereunder.3. The Commission, at all times relevant hereto, has had jurisdictionof the parties and of the subject matter herein.4. The Respondent did not fail to comply with 29 C.F.R. 1926.52(a).5. The Respondent failed to comply with 29 C.F.R. 1926.52(b) in so faras it applies to the drills, the rock drillers and the utilizing offeasible engineering controls for the said drills, but it did not failto comply with said standard as to the balance of the work stations andemployees tested.6. The Respondent’s failure to comply with 29 C.F.R. 1926.52(b) isnon-serious due to the employees’ use of hearing protection.7. The Respondent did not fail to comply with 29 C.F.R. 1926.52 (d)(1)as that standard is unenforceably vague._ORDER_1. Serious citation, Item 1A is vacated.2. Serious citation, Item 1B is affirmed as to the rock drillers anddrills and no penalty is assessed.3. Mufflers are required for the drills used at the Respondent’sworksite as regards to Serious citation, Item 1B.4. Serious citation, Item 1C is vacated.BARBARA L. HASSENFELDJUDGE, OSHRCDated: January 7, 1982Boston, MassachusettsFOOTNOTES:[[1]] The section 1926.52(a) allegation is contained in item 1A of acitation issued to Morrison-Knudsen by the Secretary of Labor. TheCommission previously granted the Secretary’s motion to withdraw item 1Bof the citation, which alleged that Morrison-Knudsen failed to usefeasible engineering or administrative controls to reduce noise levels. Also, the Secretary has not taken exception to the judge’s decision tovacate item 1C, which alleged that the company failed to implement ahearing conservation program.[[2]] The compliance officer testified that Shields was not wearinghearing protection at 9:27, when he took a reading from the dosimeterShields was wearing. The officer was somewhat equivocal about whetherhe observed Shields without hearing protection at 9:31, ultimatelystating that Shields was not wearing the equipment \”to the best of myrecollection.\” The compliance officer’s data sheet for Shields has anentry \”No PPE [personal protective equipment]\” for the 9:27 observationbut does not have a similar entry for the 9:31 observation. The datasheet also does not indicate whether Shields was wearing protectiveequipment at the other times he was observed by the compliance officer.[[3]] At the time this case was tried, Commission Rule 52, 29 C.F.R. ?2200.52, permitted requests for admissions. The Commission’s rules ofprocedure have since been amended, and requests for admissions are nowaddressed in Rule 54, 51 Fed. Reg. 32002, 32023 (Sept. 8, 1986) to becodified at 29 C.F.R. ? 2200.54.[[4]] To prove that an employer violated a standard, the Secretary mustshow that the employer knew or could have known, with reasonablediligence, of the existence of the violation. Here, the Secretary wouldhave to prove that Morrison-Knudsen had actual or constructive knowledgethat employees exposed to excessive noise were not wearing hearingprotection equipment. Because we conclude that the Secretary did notestablish that Morrison-Knudsen’s employees were not wearing theequipment for the required amount of time, we need not reach whether thecompany had the knowledge needed to find a violation. We note, however,that there is no evidence that Morrison-Knudsen had actual knowledgethat Shields and Grondin were not wearing hearing protection. Moreover,of 75 to 100 employees working in the tunnel during the inspection, allbut 2 or 3 were wearing hearing protection. The achievement of such ahigh degree of compliance is a strong indication that the companyadequately communicated and enforced a work rule requiring that hearingprotection equipment be worn and did not have constructive knowledge ofthe few instances of noncompliance. _See_ _I. T. O. Corp. ofAmeriport_, 83 OSAHRC 35\/C4, 11 BNA OSHC 1562, 1983 CCH OSHD ? 26,583(No. 80-2369, 1983); _Daniel Construction Co. of Alabama_, 81 OSAHRC71\/A2, 9 BNA OSHC 2002, 1981 CCH OSHD ? 25,553 (No. 13874, 1981).[[5]] Because of our disposition, we do not reach the other issue raisedby Morrison-Knudsen in arguing that the item should be vacated.”