“Docket No. 80-0345 SECRETARY OF LABOR, Complainant, v. MORRISON-KNUDSEN, INC., Respondent.OSHRC Docket No. 80-0345DECISION Before:\u00a0 BUCKLEY, Chairman; WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).The issue is whether Morrison-Knudsen, Inc., violatedthe OSHA standard at 29 C.F.R. ? 1926.52(a) because certain employees were not wearingequipment to protect against excessive noise.[[1]]\u00a0 Administrative Law Judge BarbaraHassenfeld vacated the item, finding that the Secretary had not proven thatMorrison-Knudsen’s employees lacked protection from excessive noise for a longer period oftime than the standard permits.\u00a0 We affirm her decision.During 1979, Morrison-Knuden was a contractor for theconstruction of the Seabrook Nuclear Power Plant in New Hampshire. The company wasresponsible for the construction of two tunnels under Hampton Bay.\u00a0 To dig thetunnels, material was excavated using a large tunneling machine, or \”mole.\”\u00a0 Railroad tracks ran through the sections of tunnel that had already been dug.\u00a0 Railroad cars running on tracks transported workers and equipment to the area inwhich the mole was working; they also transported moled rock away from the digging area.On October 30, 1979, an OSHA compliance officerinspected the worksite.\u00a0 Using a sound level meter, he measured noise levels of 96 to106 dBA on the railway in a tunnel.\u00a0 On December 13, he returned to the worksite tomeasure the amount of noise to which employees were exposed.\u00a0 On that date, personalnoise dosimeters were worn by six Morrison-Knudsen employees during their work shifts.\u00a0 The compliance officer also took sound level meter measurements at variouslocations on the worksite.\u00a0 Because the dosimeter readings showed excessive noiseexposures and the compliance officer observed certain employees not wearing hearingprotective equipment, the Secretary issued a citation alleging that Morrison-Knudsenviolated section 1926.52(a).Section 1926.52 provides in part:? 1926.52 Occupational noise exposure.(a) Protection against the effects of noise exposureshall be provided when 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 slow response.(b) When employees are subjected to sound levelsexceeding those listed in Table D-2 of this section, feasible administrative orengineering controls shall be utilized.\u00a0 If such controls fail to reduce sound levelswithin the levels of the table, personal protective equipment as required in Subpart E,shall be provided and used to reduce sound levels within the levels of the table.(c) If the variations in noise level involve maximaat intervals of 1 second or less, it is to be considered continuous.(d)(1) In all cases where the sound levels exceed thevalues shown herein, a continuing, effective hearing conservation program shall beadministered.TABLE D-2 — PERMISSIBLE NOISE EXPOSURESDuration per day, hours Sound level dBA slow response8 ……………………………………906 ……………………………………924 ……………………………………95 3 ……………………………………97 2 ……………………………………1001 1\/2 ………………………………1021……………………………………. 1051\/2…………………………………. 1101\/4 or less………………………… 115(2)(i) When the daily noise exposure is composed oftwo or more periods of noise exposure of different levels, their combined effect should beconsidered, rather than the individual effect of each.\u00a0 Exposure to different levelsfor various periods of time shall be computed according to the formula set forth inparagraph (d)(2)(ii) of this section.(ii)Fe=(T1\/L1)+(T2\/L2)+…+(Tn\/Ln)where:Fe=The equivalent noise exposure factor.T=The period of noise exposure at any essentiallyconstant level. L=The duration of the permissible noise exposure atthe constant level (from Table D-2).If the value of Fe exceeds unity (1) the exposureexceeds permissible levels.The personal noise dosimeters that the complianceofficer used to measure noise exposures are devices that continually measure sound levelsand automatically apply the cumulation formula in section 1926.52(d)(2)(ii). \u00a0 Thedosimeter calculates Fe, the equivalent noise exposure factor, and expresses the result ofits calculation in terms of the percentage of the permitted noise exposure. \u00a0 Adosimeter reading of more than 100% means that Fe is greater than one, which in turn meansthat the permissible daily noise exposure has been exceeded.\u00a0 See generallyNew England Container Co., 84 OSAHRC 55\/A2, 12 BNA OSHC 1368, 1371 n.7, 1984-85 CCHOSHD ? 27,148, pp. 35,045-46 n.7 (No. 78-1539, 1984).All six dosimeters that the compliance officerattached to Morrison-Knudsen employees yielded readings exceeding 100% during theemployees’ work shifts.\u00a0 However, Morrison-Knudsen provided personal hearingprotection equipment to its employees, and most of the employees who were observed by thecompliance officer were wearing the equipment, including four of the employees whose noiseexposure was measured with dosimeters.\u00a0 The Secretary does not argue that theequipment was not adequate to protect those employees.\u00a0 Thus, the Secretary’sallegation reduces to whether Morrison-Knudsen violated the standard with respect to thetwo employees who were observed to be without hearing protection.\u00a0 Those twoemployees were John Shields and Sterling Grondin.\u00a0 Both were motormen who drovelocomotives back and forth through the tunnels to the moling area.The compliance officer placed a dosimeter on Shieldsat 2:34 p.m., immediately before the start of his shift, and removed it at 10:40 p.m., atthe end of the shift.\u00a0 The dosimeter read 346% at the end of the shift, indicatingthat Shields received about three and one-half times the permissible dose of noise.\u00a0Around 5:30, the compliance officer rode on the locomotive that Shields was operating andmeasured the noise with a sound level meter.\u00a0 With the locomotive stationary, hemeasured a noise level of 97 dBA. With locomotive moving down the track, the noise levelwas 104 to 105 dBA.\u00a0 Around 9:30, the compliance officer observed that Shields wasnot wearing hearing protection.[[2]]\u00a0 He again observed Shields without hearingprotection at the end of the shift, as Shields was preparing to leave the tunnel.The compliance officer attached a dosimeter toGrondin at 2:32 p.m. and removed it at 11:15 p.m.\u00a0 It read 217%, indicating thatGrondin received over twice the permissible noise dose.\u00a0 The compliance officerobserved that Grondin was not wearing hearing protection when he removed the dosimeter.\u00a0 The compliance officer asked Grondin whether he wore hearing protection and,according to the compliance officer, Grondin replied that he did not because he likes tobe able to hear the machinery.We conclude that this evidence is insufficient toprove that Morrison-Knudsen violated the standard.\u00a0 We first note that the standarddoes not require that protective equipment always be worn when noise levels are between 90and 115 dBA.\u00a0 Table D-2 lists permissible times of exposure for this range of noiseslevels.\u00a0 For example, an employee who works for eight hours in an area where thenoise level is 95 dBA may work for four hours without hearing protection and still complywith the standard by wearing protective equipment the remainder of the time.The dosimeter readings for Shields and Grondin showtheir cumulative noise exposure throughout the day but do not show for how long they wereexposed to any particular noise level.\u00a0 Thus, the dosimeter readings do not show thelength of time that Shields and Grondin were required by the standard to wear protectiveequipment.\u00a0 They show only that if Shields and Grondin never wore protectiveequipment at all during the sampling period, a violation of the standard occurred.\u00a0Although sound level readings were also taken, the Secretary introduced no evidence thatany particular level continued for a particular period of time.\u00a0 It is therefore notpossible on this record to say that Shields and Grondin were required to wear protectiveequipment for any particular period of time.\u00a0 The record must therefore show thatthey were not wearing protective equipment for the entire time they wore noise dosimeters.All the record shows as to Shields is that thecompliance officer observed him without protective equipment for at most four minutesduring Shields’ shift and momentarily at the end of the shift, as Shields was preparing toleave the tunnel.\u00a0 The Secretary would have us infer from this that Shields neverwore protective equipment during his shift.\u00a0 We decline to draw such an inference.Personal hearing protection equipment–earplugs or earmuffs–is easily put on and removed,and some people find the equipment uncomfortable when worn constantly.\u00a0 Thus, anemployee may well choose to wear the equipment during only part of the day.\u00a0 Inparticular, the employee may wear the equipment when the noise level is high when thenoise level is high, at which times the need for the equipment is most obvious, and removethe equipment when the noise level is relatively low.\u00a0 Such a procedure is permittedby the standard, which allows the employee to be unprotected for some time at all noiselevels below 115 dBA and for a relatively large percentage of an eight-hour workday at thelower range of the noise levels listed in Table D-2 of the standard.\u00a0 Thus, where theemployer makes protective equipment available for employees’ use, evidence that anemployee did not wear such equipment for a few minutes during the day does not suggestthat the employee never wore the equipment during the entire day.\u00a0 The preponderanceof the evidence therefore does not support a finding that Shields was exposed to excessivenoise levels while unprotected by personal protective equipment.The compliance officer observed Grondin withouthearing protection only momentarily, at the end of Grondin’s shift.\u00a0 For the reasonsjust stated, this observation does not prove Grondin failed to wear hearing protectionduring the entire day.\u00a0 The only evidence tending to show that Grondin did not wearprotection during his entire shift is the compliance officer’s testimony that he askedGrondin whether he wore hearing protection and that Grondin replied he did not because heliked to be able to hear the machinery.Morrison-Knudsen argues that we should not rely onthis evidence because it is hearsay.\u00a0 We put to one side whether this evidence shouldbe technically classified as hearsay.\u00a0 See Fed. R. Evid. 801(d)(2)(D) (out-of-courtdeclarations by employees concerning matter within scope or employment classified asnon-hearsay rather than exception to hearsay rule).\u00a0 Whether evidence should beclassified as non-hearsay for the purpose of determining its admissibility bears littlerelation to its value to support the Secretary’s case.\u00a0 We therefore note that evenif this testimony might be classified as non-hearsay for the purpose of determining itsadmissibility, its weight must be determined after its hearsay nature is taken intoaccount.Grondin’s statement is an out-of-court declaration offered to prove the truth of thematter it contains.\u00a0 Its weight depends on such factors as whether the question wasput to Grondin conversationally and answered casually without recognition of its import,as well as on Grondin’s propensity to tell the truth, the compliance officer’s ability tocorrectly appreciate Grondin’s words, and his relaying them accurately to theadministrative law judge.\u00a0 A declaration that is introduced through another’stestimony inherently has less probative value than the delcarant’s own testimony. \u00a0When an out-of-court statement is introduced, the trier of fact has no opportunity toassess the credibility of the person who made the statement and must therefore allow forthe possibility that the statement is exaggerated, incomplete, taken out of context, oreven false.\u00a0 Also, neither the other party nor the judge has an opportunity tocross-examine the person who made the statement.\u00a0 The only person able to evaluatethe statement’s credibility is the person who heard the statement and is testifying to itscontents.\u00a0 These considerations suggest that out-of-court statements cannot always betaken at face value.On its face, Grondin’s statement tends to show thathe did not wear hearing protection during the entire time he wore the dosimeter. However,other possibilities also suggest themselves.\u00a0 Even if Grondin had worn hearingprotection for much of his shift, he may have felt he had done something wrong when he wasobserved by the compliance officer without hearing protection; therefore he may havethought it necessary to offer an excuse for not wearing the protection.\u00a0 Or, it ispossible that Grondin spoke facetiously to the compliance officer when he said he did notwear hearing protection because he \”likes to be able to hear themachinery.\”\u00a0 The compliance officer’s only personal observation of Grondin’s notwearing hearing protectors came at the end of Grondin’s shift, after Grondin wouldprobably have removed the hearing protectors if he had been wearing them, and thus is oflittle corroborative value. We also note that Judge Hassenfeld, who was in a somewhatbetter position to judge than we are, was evidently unimpressed with the complianceofficer’s testimony concerning Grondin.\u00a0 On balance, we think the complianceofficer’s testimony leaves substantial uncertainty over whether Grondin never wore hearingprotection.We also note that the Secretary could have presentedstronger evidence on the point.\u00a0 He could have attempted to definitively establishthat Grondin did not wear hearing protection through discovery, such as a request foradmission.[[3]]\u00a0 If unable to establish the point through discovery, he could haveproduced Grondin to testify.\u00a0 The Secretary bears the burden of proving a violationby the preponderance of the evidence.\u00a0 Like Judge Hassenfeld, we are not persuadedthat he carried that burden here.[[4]]We conclude that the Secretary did not present sufficient evidence to meet his burden ofproving that Shields and Grondin did not wear hearing protection on the day of the allegedviolation.\u00a0 Accordingly, item 1A of the citation is vacated.[[5]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated:\u00a0 March 3, 1987SECRETARY OF LABOR, Complainant v. MORRISON-KNUDSEN COMPANY, RespondentOSHRC NO. 80-0345Appearances:\u00a0 For Complainant,Albert H. Ross, Regional SolicitorU.S. Department of LaborFor Respondent,Robert D. Moran, Esq.Moran & ChaplinSTATEMENT OF PROCEEDINGS:On December 28, 1979, Respondent was issued a Seriouscitation and a proposed penalty of $700.00.\u00a0 Respondent contested both. Trial washeld for seven days in Boston, Massachusetts.The relevant regulations are:1A.\u00a0 29 C.F.R. 1926.52(a):Protection against the effects of noise exposureshall be provided when 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 slow response.The citation alleges \”Seabrook Station Tunnels–Employees were not wearing hearingprotection such as motor men, car pass operators and others in the work area of themole.\”1B.\u00a0 29 C.F.R. 1926.52(b):When employees are subjected to sound levelsexceeding those listed in Table D-2 of this section, feasible administrative orengineering controls shall be utilized.\u00a0 If such controls fail to reduce sound levelswithin the levels of the table, personal protective equipment as required in Subpart F,shall be provided and used to reduce sound levels within the levels of the table.The citation alleges \”Seabrook StationTunnels–Motormen, brake men, mole operator, rock drillers, car pass operator.\”1C.\u00a0 29 C.F.R. 1926.52(d)(1)In all cases where the sound levels exceed the valuesshown herein, a continuing, effective hearing conservation program shall be administered.This regulation was substituted for 29 C.F.R.1910.95(b)(3) by action allowed August 18, 1980.The citation alleges \”Seabrook StationTunnels–No audiometric testing for overexposed employees.\”ISSUES AND JURISDICTION:The Respondent engages in interstate commerce withinthe meaning of the Occupational Safety and Health Act of 1970.\u00a0 It did not contestthe jurisdiction of the Commission over the instant matter; therefore, the Commissionassumes that jurisdiction by law.\u00a0 The issues before the undersigned judge concernwhether or not the Respondent violated the regulations as alleged.EVIDENCEMr. David C. May, a compliance officer for the UnitedStates Department of Labor, Occupational Safety and Health Administration (OSHA) was theComplainant’s first witness.\u00a0 (Tr. 20)\u00a0 He is an industrial hygienist (Tr. 21)and he visited the Seabrook Power Station, Seabrook, New Hampshire, on October 30, 1979(Tr. 24) and October 31, 1979 (Tr. 24) and inspected the tunnels.\u00a0 (Tr. 26)Mr. May took an elevator down into a cavern openingto get to the tunnels which were approximately two hundred fifty feet below the surfaceand about one mile long.\u00a0 (Tr. 26)\u00a0 On October 30, 1979, there was no moling(excavating), but Mr. May rode the locomotive out to the mole site.\u00a0 (Tr.26-27)\u00a0 Upon his return on October 31, 1979, he continued his inspection.\u00a0 (Tr.27)\u00a0 On that date, he conducted some screening gas tests and noise tests in bothtunnels (Tr. 28).\u00a0 The mole was not operating at the time but the locomotive was.\u00a0 (Tr. 28).\u00a0 For the noise screening tests he used a Type Two General Radiosound level meter which gave him an instantaneous look at the noise level.\u00a0 (Tr. 29)\u00a0 He performed those tests to determine whether further sampling was needed on thetrailing section of the mole.\u00a0 (Tr. 29-30)\u00a0 He informed the Respondent of hisdesire to take full shift samplings. (Tr. 31)He returned to the work site on November 30, 1979(Tr. 31), took some samplings (Tr. 50), and arranged to return on December 4, 1979. \u00a0The employee sampled on November 30, 1980, was not overexposed.\u00a0 (Tr. 50-51) \u00a0Due to a fatality, the inspection was postponed until December 13, 1979.\u00a0 (Tr.51-52)\u00a0 On the latter date, the sampling was of the second shift in Tunnel 173.\u00a0 (Tr. 52) After calibrating his dosimeters in the Respondent’s (Mr. Jones’) office,Mr. May requested employees from Tunnel 173 that included two locomotive drivers, a carpass operator, a mole operator, a rock driller and a brakeman (Tr. 53) so that he couldobtain noise samples.\u00a0 (Tr. 65)\u00a0 He used two instruments to measure the noiseexposure, i.e., a dosimeter which records the intensity and duration of noise as well as aGeneral Radio Type 1 sound level meter, which gives instantaneous readings at any one spotas to how loud it is.\u00a0 (Tr. 65-66)\u00a0 The dosimeter records on the A scale andperceives noise similar to that of an ear whereas the sound level meter measures how loudnoise is at certain frequences.\u00a0 (Tr. 65-66)On December 13, 1979, he attached dosimeters to a locomotive driver and a car passoperator in tunnel 173 by placing the instrument in the wearer’s belt and running the wireup to the collar where the microphone was attached.\u00a0 (Tr.67)\u00a0 This procedure wasused in order to get as close as possible to the employee’s hearing zone.\u00a0 (Tr. 67)\u00a0 Mr. May also took readings with a hand sound level meter (Tr. 69, 76-77) whileriding right behind the locomotive driver and obtained a decibel (DBA) reading of 105which he opined was \”fairly high\”.\u00a0 (Tr. 73, 77)\u00a0 The driver tookabout twelve round trips daily per shift, each one-way trip lasting approximately fiveminutes.\u00a0 (Tr. 73) Mr. May testified that the employee was not wearing hearingprotection.\u00a0 (Tr. 76)\u00a0 He was primarily in tunnel 173 (Except for 1 employeetested in tunnel 174) during the full shift and made visual walk arounds, took sound levelmeter readings as well as gas and dust readings.\u00a0 (Tr. 101)\u00a0 He recorded resultsabout once per hour.\u00a0 (Tr. 101)\u00a0 He testified to a dosimeter reading of 217percent (Exhibit C-8) over a period of more than eight hours for the driver of alocomotive in tunnel 174 (Tr. 102-103), but admitted that there is a 30-32 percent errorfactor.\u00a0 (Tr. 103)\u00a0 He stated that an employer is not cited unless a reading isgreater than 132 percent so as to allow for the margin of error. (Tr. 103)He sampled the brakeman, Warren Kimball (ExhibitC-10) and the results were 378.1 percent of the OSHA standard.\u00a0 (Tr. 115-117) \u00a0On Exhibit C-12, he recorded a 250.3 percent exposure in 5 hours 24 minutes to RonnieDeheitas, the mole operator in Tunnel 173.\u00a0 (Tr. 118, 127, 129, 135)\u00a0 OnDecember 13th, he also sampled for about 5 hours Leo Paradis, the car pass operator inTunnel 173\u00a0 (Exhibit C-14) and recorded 150 percent of the OSHA standard (Tr. 137,144, 146, 147).Exhibit C-16 showed 304.8 percent of the OSHAstandard as a result of 8 hours of sampling on December 13th of John J. Shield’s Jr., themotorman of Tunnel 173 (Tr. 150, 152).\u00a0 Exhibit C-18 recorded 999 percent for a 5hour sampling on December 13th of George Demers, a rock driller in Tunnel 173.Mr. May testified that he observed Vic Allard, the walker (foreman) on the mole withouthearing protection as well as an electrician and carpenter.\u00a0 (Tr. 105-107, 150, 152,232, 240, 242, 257, 258 and Exhibit C-21).\u00a0 As a result of his inspection, Mr. Mayrecommended that the over exposed employees have hearing protection, that feasibleengineering controls and a hearing conservation program be instituted.\u00a0 (Tr. 268)\u00a0 He also recommended that a serious citation be issued because \”noise inducedhearing loss is a permanent loss of hearing, which cannot be recovered…\” (Tr. 268)When looking at factors considered for proposed penalty he indicated that he found thatthe Respondent employed more than 100 people, did not have a previous history of priorviolations within his area office, and showed a willingness to assure employees would wearhearing protection.\u00a0 (Tr. 271)Regarding item 1A of the serious citation, thepersonal protective equipment required by Mr. May was available on site so an abatementdate of immediately was selected.\u00a0 (Tr. 275-276)\u00a0 As to Item 1B, he recommendeda period of two months (Tr. 276-278) in order for the Respondent to submit its plan forabatement and another two months to furnish the preliminary surveys indicating whichfeasible engineering or administrative controls to use.\u00a0 (Tr. 278)\u00a0 Mr. Maytestified that he chose time frames based on his previous experience in noise cases.\u00a0 (Tr. 279)\u00a0 As to actual implementation of feasible administrative orengineering controls, he felt that six months from the time of the issuance of thecitation would be reasonable, as it would be two months after the engineering reports werecompleted.\u00a0 (Tr. 279)\u00a0 He admitted that the latter date was difficult topinpoint, acknowledging possible problems with contractors, etc.\u00a0 (Tr. 280, 282)He discussed enclosing the car pass operator’s workstation (Exhibit C-28) the hydraulic motor noise source and the costs of suchenclosure.\u00a0 (Tr. 282, 283, 288)\u00a0 Mr. May testified that his research hadindicated it would be technically feasible to place a booth around the car pass operatorand that estimated cost would be $3,000.00 for two booths.\u00a0 (Tr. 289-290)\u00a0 Asfor the mole operator in tunnel 173, he indicated that a booth could be installed (Tr.296-297, Exhibits C-25, C-26), and estimated the material cost per booth to be $1,900.00(Tr. 298).\u00a0 He stated that a theoretical reduction of about 35 decibels was predictedfor his proposal as regards to the mole operator.\u00a0 (Tr. 300)\u00a0 His testimonyconcerning noise reduction for the rock drillers indicated the use of mufflers, mufflerjackets and\/or dampening materials.\u00a0 (Tr. 301), and Exhibit C-33 was introduced todemonstrate feasibility of such controls for drills.\u00a0 (Tr. 307, 311)Exhibit C-34 depicts a locomotive at the site (Tr.315) and Mr. May suggested installing a cab over where the operator and brakeman ride orenclosing the transmission.\u00a0 (Tr. 316-317)\u00a0 The cab should, according to thewitness, be made from noise reduction materials (Tr. 316), and he didn’t believe theoperation of the locomotive would be obstructed by the cab but had no knowledge as to theeffect of enclosing the transmission on the operation.\u00a0 (Tr. 317)\u00a0 The estimatedcost of the enclosure would be $1,150.00 per locomotive.\u00a0 (Tr. 319)As to item 1C of the serious citation, whichconcerned the hearing conservation program he recommended thirty days for abatement andrequired a four point program including base line audiograms for over-exposed employees.\u00a0 (Tr. 320, 325, 326)\u00a0 The guidelines he used came from the Industrial HygieneField Operations Manual.\u00a0 (Tr. 322, Exhibit C-35)On cross examination, Mr. May admitted that allemployees except those in booths or enclosures would have to wear hearing protection.\u00a0 (Tr. 383)\u00a0 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 themanufacturer and that there were ways to actually verify that.\u00a0 (Tr. 385)\u00a0 Thecost of the plugs was about thirty cents per pair (Tr. 387), and they were effective inreducing the noise (Tr. 392) but that he was concerned that employees might not wear themdaily or properly.\u00a0 (Tr. 391)\u00a0 He stated that they could become dirty from theenvironment so an employee might be tempted to throw them out after a day’s use althoughthey could be cleaned and reused.\u00a0 (Tr. 392-393).\u00a0 The proposed booths had atbest a theoretical estimate of 35 decibel reduction, which was about the same protectionafforded by the ear protectors he wore.\u00a0 (Tr. 384, 389)\u00a0 He had no informationnor could he obtain any regarding the actual decibel reduction that would be obtained bythe use of such booths.\u00a0 (Tr. 385, 386)As to commercially produced ear muffs, Mr. Mayindicated that the resultant reduction could be as much as 50 decibels, the cost would beabout ten to fifteen dollars, and they would last for the duration of the project. \u00a0(Tr. 395-396)\u00a0 He admitted that not only would they reduce noise to a greater degreethan the proposed enclosure but that the cost would be considerably less. \u00a0 (Tr. 396,398)While conducting his inspection, Mr. May wore araincoat and work boots as the tunnels are wet with constant moisture in the air. (Tr.402-403)\u00a0 His testimony indicated that the OSHA Industrial Hygienist FieldOperations’ Manual warned that the dosimeters would perform accurately as long as moisturedoes not condense or deposit on the microphone diaphragm.\u00a0 (Tr. 407)\u00a0 For thenoise samplings, the microphone were placed on the six employees’ collars but not coveredby their raincoats.\u00a0 (Tr. 408, 415)\u00a0 Normally the best placement of themicrophone would be the center of the shoulder in order to pick up noise coming up frombehind, in front and to the side (Tr. 412); however, he placed the microphones on thecollar in order to protect them from water dripping in the tunnel, which placementadmittedly was not the optimum location.\u00a0 (Tr. 413)He testified that dosimeters don’t record until thenoise level is above 90 decibels (Tr. 760-764) and a 2 decibel margin of error is allowed(Tr. 963)\u00a0 If the diaphragm of the microphone got wet, it would lower the results(Tr. 967-968) and the fact that the site was 258 feet below sea level only meant adifference of 0.34 decibels (Tr. 973).Mr. May stated that out of the 330 Morrison-Knudsenemployees at the site, he saw 3 without hearing protection on December 13, 1979 (Tr.496-497).\u00a0 He made no inquiries as to whether or not the Respondent provided hearingprotection, (Tr. 498-500); however, Mr. David stated to him that they were available invarious locations.\u00a0 (Tr. 500-501).\u00a0 Mr. May’s contention in citing theRespondent was that it did not insure that the employees wore them in high noise areas(Tr. 502-518) and he suggested that a person be responsible for that. \u00a0 (Tr.504)\u00a0 He testified that the fact that some employees wore hearing protection andothers did not indicated to him there were deficiencies in the safety program but admittedhe didn’t know about the program.\u00a0 (Tr. 518-520)\u00a0 The basis for his opinion thatthere was improper supervision rested solely on the fact that he saw Vic Allard, thewalker supervisor, not wearing them (Tr. 521) Mr. May suggested periodic audiometrictesting for overexposed employees.\u00a0 (Tr. 547, 555, 557-559)Mr. Jerry Antel, an engineering technician with theMine Safety and Health Administration (Tr. 1041) renders assistance to the mining industryto reduce noise exposure (Tr. 1042).\u00a0 He analyzes a problem from the health andengineering aspects (Tr. 1042). His experience included evaluating a diesel locomotivesimilar to the one used at the Respondent’s work site at the time of the inspection andfound that the transmission was the primary noise source.\u00a0 (Tr. 1049)\u00a0 He statedthat an enclosure was actually installed around the transmission with noise absorptionmaterials resulting in about 8-10 decibel reduction which brought it within the allowablelimits.\u00a0 (Tr. 1050, 1051, 1068)\u00a0 In order to know the actual absorptionmaterials needed, tape recordings of the noise would have to be made.\u00a0 (Tr. 1094)Mr. Antel opined that the major source of noise forthe drills used at the Respondent’s site was the exhausting air and the attachment of abody muffler would achieve a 7-8 decibel reduction.\u00a0 According to him, there was nofreezing encountered nor any significant drilling restriction from the body muffler.\u00a0 (Tr. 1331)\u00a0 Regarding the booths for the locomotives and car pass operator,Mr. Antel testified that the window could be slanted to be closer at the bottom then atthe top (Tr. 1333) and it should be made of lucite.\u00a0 (Tr. 1335)Mr. Orville Jones, the senior safety supervisor forthe Respondent at the 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), andthat the use of air conditioning would not be possible due to the electrical capacity inthe tunnel.\u00a0 (Tr. 1170-71)\u00a0 He cited visual problems due to mud and scratchingof the enclosure (Tr. 1175) and clearance problems on the locomotives. \u00a0 (Tr. 1185,1189, 1193, 1267, 1269).\u00a0 He complained of diminished efficiency if mufflers were puton the drills.\u00a0 (Tr. 1199).DISCUSSIONThe Secretary of Labor bears the burden of provingthe existence of a violation by a preponderance of the evidence.\u00a0 Astra PharmaceuticalProducts, Inc., 9 BNA OSHC 2126 (1981).\u00a0 In the case at hand, the Secretary mustprove that administrative or engineering controls for reducing employee exposure aretechnically and economically feasible.\u00a0 Secretary of Labor v. Continental CanCompany, 4 OSHC 1541, 1548 (1976).\u00a0 The cost benefit test enunciated by theCommission appears to still be the law for noise cases, see Continental Can Company,supra, despite the United States Supreme Court decision in American Textile ManufacturersInstitute Inc. et al v. Donovan et al (June 17, 1981) which ruled on theinterpretation of Section 6(b)(5) of the Occupational Safety and Health Act (29 U.S.C.Section 655(b)(5).To determine whether something is technologicallyfeasible, there must exist a type of control capable of producing a significant reductionin noise exposure in the Respondent’s workplace and the Secretary must show that suchtechnology could be adapted to the employer’s workplace.\u00a0 Secretary of Labor v.Samson Paper Bag Company, Inc., 8 OSHC 1515 (1980).\u00a0 There is no duty on eachemployer to research and develop new technology, American Iron and Steel Institute etal v. OSHA, 6 OSHC 1451, 1461 (1978).\u00a0 A Respondent is only in violation of thestandard if it 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 orengineering controls shall be the preferred means of compliance, with personal protectiveequipment to be used if such controls are not \”feasible\” or if the controls thatare feasible cannot achieve full compliance.\”\u00a0 Samson Paper Bag Company, Inc.supra at 1518, see also Secretary of Labor v. Turner Corp., 4 OSHC 1554, 1557(1976).\u00a0 In the Samson Paper Bag case, the employees were wearing earplugscapable of reducing noise exposure to within the permissible exposure levels.The use of personal protective devices which in factreduce the noise exposure to within allowable limits can not excuse the employer from itsresponsibility to adhere to technological advances if they exist but use of the devicesmust be considered to determine whether the resultant harm will be serious ornonserious.\u00a0 In the instant case, the testimony is uncontroverted that such devicesexist and are available and in use at the Respondent’s workplace in issue; therefore, theharm that could result here is non-serious.The Respondent raises the issues of the proper use ofthe dosimeters and the time lapse of their use after sound level tests were taken. \u00a0The testimony reveals that there were no sound level tests performed at the time thedosimeters were placed on the employees and the Respondent questions the reliability ofthe dosimeter readings because the compliance officer did not constantly watch theemployees to know if the readings resulted from the particular work stations for which theSecretary wants engineering controls or from other locations.\u00a0 Furthermore, theRespondent raises the issue of readings taken for less than eight hours and refers to Secretaryof Labor v. Gannett Rochester Newspaper Corporation 9 OSHC 1590 (1981) to support hiscontention.\u00a0 In the latter case, dosimeters weren’t used in conjunction with thesound level meters and the compliance officer failed to keep the employees under constantcontrol.\u00a0 Certainly there are problems in this instant case for requiring engineeringcontrols for the mole operators, car pass operators and locomotive drivers.\u00a0 In oneinstance, the compliance officer didn’t even observe the employee at work.\u00a0 There arefurther problems that arise due to the lack of technological feasibility of the itemsproposed or \”suggested\” by the Secretary for those work stations.\u00a0 Therewas no evidence that indicated that such booths would be feasible or effective in theRespondent’s workplace.\u00a0 The compliance officer had never before inspected such atunnel and Mr. Antel’s testimony on that point was tenuous. This can be distinguishedhowever from Mr. Antel’s testimony which referred to his experience with comparable use ofsimilar drills and the availability of mufflers for those drills to reduce noise levels.\u00a0 His answers to problems that could arise from the use of mufflers certainlyindicate they are technologically and economically feasible in the instant case, and thecompliance officer’s testimony for that violation is credible and reliable.\u00a0 Thetestimony adduced revealed that the noise levels to which the Respondent’s rock drillerswere exposed exceed the permissible levels and that the employer knew or with the exerciseof reasonable diligence could have known those facts.The Secretary’s testimony consisting of thecompliance’s officers observation of a few employees without hearing protection does notmeet the burden of proof that those employees were exposed for the time required to anylevels that exceed the requirements of Table D-2.The last part of the citation (Item 1C) concerns thehearing conservation program and the Respondent has raised the issue that the standard isconstitutionally vague as it does not provide proper notice to the employer of what’srequired.\u00a0 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 was recently declared by the Seventh Circuit in KroppForge 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 the standard did notprovide \”fair warning\” of what is required or prohibited.The Seventh Circuit referred to the United StatesSupreme Court decision in American Textile Manufacturers Institute Inc. v. Donovan,supra and reiterated the predicate for agency action\”.\u00a0 The KroppForge case at 2135 noted that on January 16, 1981 OSHA removed the one-sentencestandard at issue and replaced it with a new regulation which thus acknowledged that theelements required by the Secretary in Kropp Forge were not previously included inthe standard cited.\u00a0 This reasoning 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 FACT1.\u00a0 Compliance Officer David C. May made a dulyauthorized and proper inspection of the Respondent in the instant case at the SeabrookPower Station, Seabrook, New Hampshire.2.\u00a0 The Respondent is found to have been engagedin tunnel construction at the time of the inspection.3.\u00a0 The Respondent is found to have contestedItems 1A, 1B and 1C of the Serious citation.4.\u00a0 The Respondent is found to be a largecompany.5.\u00a0 At the rock drillers work stations, the saidemployees were exposed to noise levels exceeding those permitted by Table D-2.6.\u00a0 The Respondent knew, or with the exercise orreasonable diligence could have known that the noise levels were excessive at the rockdrillers’ work stations.7.\u00a0 Use of mufflers of drills for the violationof Item 1B is found to be required and to be economically and technologically feasible.CONCLUSIONS OF LAW1.\u00a0 At all times relevant herein, the Respondenthas been engaged in a business affecting commerce within the meaning of Section 3 of theOccupational Safety and Health Act of 1970.2.\u00a0 The Respondent was, at all times relevanthereto, subject to the requirements of the Occupational Safety and Health Act of 1970 andthe Standards promulgated thereunder.3.\u00a0 The Commission, at all times relevanthereto, has had jurisdiction of the parties and of the subject matter herein.4.\u00a0 The Respondent did not fail to comply with29 C.F.R. 1926.52(a).5.\u00a0 The Respondent failed to comply with 29 C.F.R. 1926.52(b) in so far as it appliesto the drills, the rock drillers and the utilizing of feasible engineering controls forthe said drills, but it did not fail to comply with said standard as to the balance of thework stations and employees tested.6.\u00a0 The Respondent’s failure to comply with 29C.F.R. 1926.52(b) is non-serious due to the employees’ use of hearing protection.7.\u00a0 The Respondent did not fail to comply with29 C.F.R. 1926.52 (d)(1) as that standard is unenforceably vague.ORDER1.\u00a0 Serious citation, Item 1A is vacated.2.\u00a0 Serious citation, Item 1B is affirmed as tothe rock drillers and drills and no penalty is assessed.3.\u00a0 Mufflers are required for the drills used atthe Respondent’s worksite as regards to Serious citation, Item 1B.4.\u00a0 Serious citation, Item 1C is vacated.BARBARA L. HASSENFELD JUDGE, OSHRCDated:\u00a0 January 7, 1982 Boston, MassachusettsFOOTNOTES: [[1]] The section 1926.52(a) allegation is containedin item 1A of a citation issued to Morrison-Knudsen by the Secretary of Labor. TheCommission previously granted the Secretary’s motion to withdraw item 1B of the citation,which alleged that Morrison-Knudsen failed to use feasible engineering or administrativecontrols to reduce noise levels.\u00a0 Also, the Secretary has not taken exception to thejudge’s decision to vacate item 1C, which alleged that the company failed to implement ahearing conservation program.[[2]] The compliance officer testified that Shieldswas not wearing hearing protection at 9:27, when he took a reading from the dosimeterShields was wearing.\u00a0 The officer was somewhat equivocal about whether he observedShields without hearing protection at 9:31, ultimately stating that Shields was notwearing the equipment \”to the best of my recollection.\”\u00a0 The complianceofficer’s data sheet for Shields has an entry \”No PPE [personal protectiveequipment]\” for the 9:27 observation but does not have a similar entry for the 9:31observation.\u00a0 The data sheet also does not indicate whether Shields was wearingprotective equipment at the other times he was observed by the compliance officer.[[3]] At the time this case was tried, CommissionRule 52, 29 C.F.R. ? 2200.52, permitted requests for admissions.\u00a0 The Commission’srules of procedure have since been amended, and requests for admissions are now addressedin Rule 54, 51 Fed. Reg. 32002, 32023 (Sept. 8, 1986) to be codified at 29 C.F.R. ?2200.54.[[4]] To prove that an employer violated a standard,the Secretary must show that the employer knew or could have known, with reasonablediligence, of the existence of the violation.\u00a0 Here, the Secretary would have toprove that Morrison-Knudsen had actual or constructive knowledge that employees exposed toexcessive noise were not wearing hearing protection equipment.\u00a0 Because we concludethat the Secretary did not establish that Morrison-Knudsen’s employees were not wearingthe equipment for the required amount of time, we need not reach whether the company hadthe knowledge needed to find a violation.\u00a0 We note, however, that there is noevidence that Morrison-Knudsen had actual knowledge that Shields and Grondin were notwearing hearing protection. Moreover, of 75 to 100 employees working in the tunnel duringthe inspection, all but 2 or 3 were wearing hearing protection.\u00a0 The achievement ofsuch a high degree of compliance is a strong indication that the company adequatelycommunicated and enforced a work rule requiring that hearing protection equipment be wornand did not have constructive knowledge of the few instances of noncompliance.\u00a0 SeeI. T. O. Corp. of Ameriport, 83 OSAHRC 35\/C4, 11 BNA OSHC 1562, 1983 CCH OSHD ?26,583 (No. 80-2369, 1983); Daniel Construction Co. of Alabama, 81 OSAHRC 71\/A2, 9BNA OSHC 2002, 1981 CCH OSHD ? 25,553 (No. 13874, 1981).[[5]] Because of our disposition, we do not reach theother issue raised by Morrison-Knudsen in arguing that the item should be vacated.”