“Docket No. 78-1539 SECRETARY OF LABOR,Complainant,v.NEW ENGLAND CONTAINER COMPANY, INC.,Respondent.OSHRC Docket No. 78-1539DECISION Before:\u00a0 BUCKLEY, Chairman; and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).At issue in this case is whether Administrative Law Judge Ben D. Worcestererred in finding that New England Container Company had not \”repeatedly\”violated 29 C.F.R. ? 1910.106(e)(2)(iv)(d),[[1]] and in vacating citation itemsalleging that New England violated 29 C.F.R. ?? 1910.95(a) and (b)(1).[[2]]\u00a0Chairman Buckley and Commissioner Cleary disagree as to the disposition of the items onreview.Item 2:\u00a0 Self-closing valvesItem 2 alleges that New England failed to equip 55-gallon drums of flammable liquid withself-closing valves, contrary to section 1910.106(e)(2)(iv)(d).\u00a0 The Secretarycharacterized the violation as repeated because a 1976 citation involving a violation ofthe same standard at the same location had become a final order of the Commission beforethe alleged violation occurred in 1978.\u00a0 He did not propose that a penalty beassessed, however.\u00a0 During the 1978 inspection, the drums were not equipped withself-closing valves.\u00a0 The drums had been so equipped but the valves broke two weeksbefore the inspection and new valves were on order.\u00a0 The judge found New England inviolation, but found the violation \”at most . . . other than serious, one in which nopenalty should be assessed.\”Chairman Buckley would affirm the judge’s decision.\u00a0 He finds that New England didnot \”repeatedly\” violate section 1910.106(e)(2)(iv)(d) within the meaningof section 17(a) of the Act, 29 U.S.C. ? 666(a).[[3]]\u00a0 Under the Commission’sdecision in Potlatch Corp., 79 OSAHRC 6\/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ?23,294 (No. 16183, 1979), an employer has repeatedly violated a standard under section17(a) of the Act, 29 U.S.C. ? 666(a), if, at the time of the alleged violation, there wasa Commission final order against the same employer for a \”substantially similar\”violation.[[4]]\u00a0 In determining whether two violations are so \”substantiallysimilar\” as to warrant a finding that an employer \”repeatedly\” violated theAct, the purpose underlying the test must be borne in mind.\u00a0 Potlatchattempted to give concrete effect to the congressional intent underlying the flexiblepenalty scheme in the Act–i.e., to authorize or require progressively higher penaltiesfor progressively greater misconduct.[[5]]\u00a0 Congress thus coupled violationswillfully committed with those repeatedly committed and authorized for both a ten-foldincrease in the potential penalty.\u00a0 By specifying this hierarchical system ofpenalties, Congress evidently intended that misconduct engaged in repeatedly was eithercircumstantial evidence of willfulness, or of itself was of a higher order requiring agreater deterrent penalty.\u00a0 See Bethlehem Steel Corp. v. OSHRC,540 F.2d 157, 161-62 (3d Cir. 1975).\u00a0 When such a pattern of misconduct occurs, theemployer may require the greater incentive of an increased penalty to comply withstandards.Chairman Buckley finds no such pattern of misconduct here.\u00a0 Theself-closing valves were in place but had worn out shortly before the inspection, and NewEngland was awaiting the delivery of replacements.\u00a0 Certainly it cannot be said thatNew England’s failure to have replacements on hand when the valves unexpectedly failed isrepresentative of a pattern of misconduct, nor does it demonstrate conduct substantiallysimilar to the previous violation when New England did not have or use self-closingvalves. Indeed, the violation in this instance is an example of the \”purelyinadvertent recurrence\” that the court in George Hyman Construction Co. v.OSHRC, 582 F.2d 834, 841 (4th Cir. 1978), cautioned should not be the basis for arepeat violation citation.\u00a0 It is also apparent that New England does not require anygreater incentive to comply with the standard.\u00a0 It had been in compliance before theinspection and would have been in compliance on the day of the inspection but for thefailure of the valves and its shortage of replacements.\u00a0 Indeed, the Secretaryacknowledged that New England needed no additional incentive to comply with section1910.106(e)(2)(iv)(d), for he did not even propose that a penalty be assessed.\u00a0Chairman Buckley would therefore affirm the judge’s characterization of theviolation of section 1920.106(e)(2)(iv)(d) as other than serious and would assessno penalty.Commissioner Cleary would find the violation to be repeated.\u00a0 NewEngland violated section 1910.106(e)(2)(iv)(d) by failing to equip drums containingflammable materials with self-closing valves.\u00a0 The citation it received in 1976 forviolating the same standard has become a final order of the Commission.In Potlatch, the Commission held that:A violation is repeated under section 17(a) of the Act if, at the time of thealleged repeated violation, there was a Commission final order against the same employerfor a substantially similar violation.7 BNA OSHC at 1063, 1979 CCH OSHD at pp. 28,172-3.\u00a0 If the antecedentand current violations concern the same standard, a prima facie case of substantialsimilarity has been made out.\u00a0 Id.\u00a0 The employer may rebut this primafacie case by showing that the antecedent and current violations concerned disparatehazards and conditions.\u00a0 Id.\u00a0 Under Potlatch, the employer’sattitude toward compliance with the Act is not relevant to the substantial similarityquestion. [[7]]\u00a0 BNA OSHC at 1064, 1979 CCH OSHD at p. 28,173.\u00a0 The Potlatchtest has clearly been met here.\u00a0 The antecedent and current violations concern thesame standard, the same hazard and even the same equipment.\u00a0 Commissioner Clearywould therefore conclude that the violation was repeated.Commissioner Cleary observes that this conclusion is compelled by Commissionprecedent. \u00a0The clear and easily applied Potlatch test was announced after theCommission had experienced great difficulties created by the lack of a consistent andauthoritative interpretation of \”repeated\” by both the Commission and thecourts.\u00a0 The issue was thoroughly re-examined and a consensus was reached paring downthe significant elements to two–whether a prior violation had become a final order andwhether the present violation was substantially similar to it.[[6]]\u00a0 The Commissioncharacterized a number of factors as relevant only to penalty assessment that previouslyhad been thought relevant to the repeated issue, such as an employer’s attitude towardcompliance (including \”aggravated conduct,\” and \”disregard\” and\”flouting\” of the Act), commonality of supervision, and geographical proximityof violations.\u00a0 Potlatch does not hold or imply that a pattern of misconductmust be shown to have existed or that the employer’s need for greater incentives to complymust be considered when determining whether a violation is repeated.This is not to say that Commissioner Cleary would not consider the eventspreceding the violation and the employer’s good faith in having ordered replacement valvesin assessing a penalty.\u00a0 See Potlatch Corp., 7 BNA OSHC at 1064, 1979CCH OSHD at pp. 28,172-3.\u00a0 In this case he agrees with the Chairman that no penaltyshould be assessed.Items 1(a) and (b):\u00a0 Personal Protective Equipment and EngineeringControls New England also was cited for repeated violations of sections 1910.95(a) and1910.95(b)(1).\u00a0 Item 1(a) alleged that an employee in the blasting machine area wasnot wearing hearing protection when exposed to excessive sound levels, contrary to section1910.95(a).\u00a0 Item 1(b) alleged that the company had not implemented feasibleengineering controls to reduce employee exposure in the blasting machine area withinpermissible limits, contrary to section 1910.95(b)(1).In its plant, New England reconditions used 55-gallon drums.\u00a0 After thetops of the used drums are removed, any material remaining is poured out and the residueis burned in an incinerator.\u00a0 A conveyor belt then takes the drums to the blastingmachine area.\u00a0 When a drum arrives at the blasting area, an employee positions it ina device variously called a pneumatic lifter, a barrel loader or a promoter, which liftsthe drum and positions it at the blasting machine.\u00a0 The blasting machine then shootsmetal pellets into the drum to blast off scale and residue.\u00a0 The noise in theblasting machine area stems from three sources:\u00a0 the banging and scraping of themetal drums against the metal surface of the conveyor belt; the air exhaust of thepneumatic lifter; and the metal pellets being blasted against the inside walls of themetal drums.The compliance officer testified that, for six hours, he measured the noiseexposure of the operator of the blaster, who was not, wearing personal hearing protection,using an audiometric dosimeter.\u00a0 The dosimeter showed that the operator had received138% of the noise dose permissible under the standard.[[7]]\u00a0 The compliance officeralso measured the sound levels at the blaster operator’s work station with a sound levelmeter.\u00a0 He testified that the sound levels went from a high of 112 dBA to a low of 87dBA (permissible for any period of time under Table G-16 of the standard).\u00a0 He statedthat the noise from the drums scraping against the conveyor surface was present for about70% of the time, and was 92 dBA (permissible under the table for 6 hours), with peaks ofunspecified duration up to 97 dBA (permissible under the table for 3 hours).\u00a0 He alsostated that the noise levels \”at\” the pneumatic lifter ranged \”anywherefrom 97 to 112 [dBA], depending upon the portion of the cycle\” of operations beingmeasured. The compliance officer took two sets of sound level readings–one within twofeet of the air exhaust of the pneumatic lifter and one near the employee’s ear–but hedid not state from which set these sound level readings came.\u00a0 He did not testifywhat noise level was produced when the drums were blasted with metal pellets.\u00a0Although he testified that the work of the blaster operator consumed 4 3\/4 hours outof 6 hours on the day of the inspection, he did not state how long any of these levelscontinued, what portion of the operating cycle they covered or how long each operatingcycle was.\u00a0 He did note that the blasting operation was usually shut down for an houreach day.The compliance officer recommended the installation of a muffler, which hesaid would cost between $10 and $50, on the air exhaust of the pneumatic lifter.[[8]]\u00a0 Though he conceded that this would not reduce the noise from air exhaust on thepneumatic lifter to below 90 dBA, the permissible level for an 8-hour work day, he statedwithout elaboration that it would reduce the blaster operator’s noise exposure to 70% ofthe permissible dose for 6 hours.\u00a0 This muffler would affect only the noise from anexhaust on the pneumatic lifter.\u00a0 It would do nothing to counteract the noiseemanating from the conveyor belt or the pellets striking the barrel.In an effort to, among other things, reduce sound levels after a 1976inspection of the blasting machine area, New England installed mufflers, redesigned thecylinder on the pneumatic lifter, and installed rubber lining to reduce the noise of thedrum as it goes through the blaster.\u00a0 It also modified that part of the blaster wherethe drum is uprighted.\u00a0 New England’s vice president testified, based on hisextensive experience in the drum reconditioning industry, that the operation cited isinherently noisy and that noise had been reduced \”as much as the state of the artallows.\”\u00a0 He testified that the air exhaust was neither the sole nor the majorsource of the noise in the blaster room.The judge vacated both items, finding that the Secretary had not proved\”that the employer, although put on notice that a hazard existed, had failed tocorrect it.\”\u00a0 The judge noted that there was credible testimony that New Englandhad modified its equipment for the purpose of reducing noise in the interval between the1976 and 1978 inspections, including the installation of a larger piston in the blaster,the installation of mufflers, and the coating with rubber of areas where metal struckagainst metal.\u00a0 The judge also found that New England provided and enforced the useof ear plugs.\u00a0 The judge found that the Secretary failed to prove that New Englandknew or should have known that the operator was not using hearing protection.In Chairman Buckley’s view, the record does not support the allegation thatNew England failed to install feasible engineering controls and he would affirm thejudge’s decision vacating the citation.\u00a0 Though the Secretary now claims in his briefthat sufficient evidence exists to support a finding that one proposed engineeringcontrol, a muffler, was feasible, the record does not establish what benefits, if any,will be achieved by use of the muffler.\u00a0 See Sherwin-Williams Co., 84OSAHRC , 11 BNA OSHC 2105, 2110, 1984 CCH OSHD ? 26,986, p. 34,702 (No. 14131, 1984).\u00a0The compliance officer’s conclusory and unsupported opinion that a muffler couldreduce the exposure to the employee to 70% of that permitted by the standard lackssufficient foundation to justify making such a finding.Chairman Buckley notes that the noise standard does not regulate the sound level at anoise source but the dose of noise that an employee receives.\u00a0 To determine thebenefit from a proposed engineering control therefore requires a determination of thereduction in noise dose effected by the control.\u00a0 If an employee is exposed to noisefrom several sources, it is not ordinarily possible to tell what the dose reduction wouldbe without knowing what sound level was generated at the employee’s hearing zone by thenoise source to be controlled, the length of exposure to that sound level, and the soundlevel reduction expected from the control.\u00a0 If the sound level generated by a sourceat the employee’s hearing zone is not known, it is nevertheless possible to calculate adose reduction if the sound level generated at the source, the distance of the employeefrom the source, the amount of time that the source generates noise, and the expectedsound level reduction are known.\u00a0 This record, however, supplies little or noevidence on these factors.Although the compliance officer testified that the proposed muffler wouldreduce the blaster operator’s exposure to 70% of the permissible dosage, he conceded thathe had based this conclusion on \”a cursory engineering study.\”\u00a0 There is noevidence that the compliance officer considered all of the above-mentioned factors inmaking his estimate, nor is there evidence of the factors he did consider.\u00a0 He didnot testify to the amount of time that the air exhaust from the pneumatic lifter generatedany particular noise level. It is not clear whether the sound levels or 97-112 dBAemanating from that source were measured in the employee’s hearing zone or at the exhaust,where they would be higher.\u00a0 The compliance officer’s statement that the air exhaustwas the primary noise source in the area was not only contradicted by New England’s vicepresident, but is unsupported by any testimony regarding the noise levels created duringblasting or the amount of time that the air exhaust generated noise, both of which areneeded to determine the relative contributions of various sources to the blasteroperator’s noise dose.\u00a0 The compliance officer also did not testify to the reductionin decibels a muffler could be expected achieve.\u00a0 The compliance officer’s bareconclusion is insufficient to support a finding that the muffler would have any particulareffect on the employee’s noise dose.\u00a0 See General Motors Corp., 81OSAHRC 30\/E13, 9 BNA OSHC 1575, 1577, 1981 CCH OSHD ? 25,280, p. 31,239 (No. 78-2894,1981); Hurlock Roofing Co., 79 OSAHRC 7\/A2, 7 BNA OSHC 1108, 1979 CCH OSHD ?23,358, p. 28,267 (No. 76-357, 1979).Nothing in the Act or the standard requires New England to make yet anotherpiecemeal change in its equipment when it has not been shown that the change would benefitemployees.[[9]]\u00a0 Because the Secretary failed to prove by a preponderance of theevidence that the control he advocated would achieve some benefits, Chairman Buckleycannot find that the benefits of the control are justified by its cost.\u00a0 ChairmanBuckley would therefore conclude that the Secretary has failed to establish by apreponderance of the evidence that engineering controls are feasible and would affirm thejudge’s disposition of item 1(b).With respect to item 1(a), Chairman Buckley also would affirm the judge’sfinding that the Secretary failed to show that New England knew or with the exercise ofreasonable diligence could have known of the blaster operator’s failure to wear personalhearing protection.\u00a0 See, e.g., Scheel Construction, Inc., 76OSAHRC 38\/B6, 4 BNA OSHC 1824, 1826, 1976-77 CCH OSHD ? 21,263, p. 25,560 (No. 8687,1976)(in all cases the Secretary must prove by a preponderance actual or constructiveknowledge on the part of the employer).\u00a0 It is clear that New England did not haveactual knowledge that the temporary operator was not wearing earplugs.\u00a0 There is noevidence to show that either New England’s vice-president or its plant manager knew thatthe operator was not wearing hearing protection.\u00a0 Nor does the evidence show thatwith reasonable diligence New England could have known that the operator was not wearinghearing protection.\u00a0 New England’s vice-president testified that earplugs wereavailable and that the regular blaster operator used them consistently and regularly.\u00a0The plant manager testified that employees were told that they could be suspended ifthey did not use hearing protection.\u00a0 The burden was on the Secretary to establish bya preponderance of the evidence that New England did not exercise reasonable diligence.\u00a0Although the compliance officer testified that the operator told him he did notusually wear earplugs, the record indicates that this employee was only temporarilysubstituting for the regular operator.\u00a0 There is no evidence that the operator’sregular duties required him to wear earplugs or that Costa could reasonably have knownthat the replacement operator was not wearing earplugs.\u00a0 The evidence is insufficientto establish that New England should have known of the operator’s failure to wear theplugs.Commissioner Cleary would find that the evidence demonstrates that NewEngland failed to implement engineering controls to reduce sound levels below Table G-16levels and that such controls were feasible.\u00a0 He would therefore find a violation ofsection 1910.95(b)(1) and affirm item 1(b).\u00a0 In his view, engineering controls areeconomically feasible if they do not threaten an employer’s long-term profitability andcompetitiveness or, in the event of economic threat, do so because the employer has laggedbehind its industry in providing noise protection for employees.\u00a0 Sherwin-WilliamsCo., 11 BNA at 2112, 1984 CCH OSHD at p. 34,704 (dissenting opinion).\u00a0 It is notdisputed that New England’s employee was exposed to 138% of his permissible noiseexposure.\u00a0 The judge found that \”[t]here is credible and reliable evidence,based upon the very thorough testing performed by the Secretary’s inspector, Mitchell,that [the] temporary employee, Miller was exposed to excess noise at the time of the March1978 inspection and that he was not wearing ear floss or other hearing protection.\”The uncontradicted testimony of the compliance officer was clearly sufficientto demonstrate that the installation of a muffler costing $10-50 on the pneumatic lifterwould reduce the operator’s exposure to 70% of the permissible dose.[[10]]\u00a0 Todetermine what engineering controls would be feasible, the compliance officer measuredsound levels at various sources with a precision sound level meter.\u00a0 He\”determined what the sound level was during different parts of the cycle, and fromthat how much time in total . . . that sound level was present during the . . . day.\”\u00a0 Having determined the portion of the blaster operator’s total noise dosecontributed by the exhaust from the pneumatic lifter, it would have been a simple matterfor the compliance officer to compute the noise reduction a muffler would accomplish anddetermine that it would reduce the blaster operator’s noise dose to 70% of that permittedby the standard.\u00a0 Thus, although he did not outline every step in his calculations,the compliance officer undoubtedly calculated the dose reduction by taking into accountthe sound level generated at the employee’s hearing zone by the exhaust from the pneumaticlifter, the amount of time it generated that sound level, and the sound level reductionexpected from the control.\u00a0 Had the parties focussed more directly on the effects ofthe engineering controls suggested by the Secretary, the compliance officer might havebeen called on to go over these computations in painstaking detail.\u00a0 See Quickv. Martin, 397 F.2d 644, 647 (D.C. Cir. 1968).\u00a0 However, standing alone, thecompliance officer’s testimony is certainly sufficient to establish that the benefit ofthe installation of a muffler costing only $10-50 would be to reduce the blasteroperator’s noise dose to 70% of that permitted by the standard.\u00a0 Commissioner Clearywould therefore conclude that the controls are economically feasible.Commissioner Cleary also would find that the controls are feasible undercurrent Commission precedent.\u00a0 Under the lead opinion in Sherwin-Williams,engineering controls are economically feasible if the benefit that will be achieved by thecontrols justify the cost of implementing them.\u00a0 11 BNA at 2110, 1984 CCH OSHD at p.34,702.\u00a0 It is apparent that the expenditure of a mere $10-50 is justified to reducean employee’s daily exposure far below Table G-16 levels.Commissioner Cleary would find a violation of section 1910.95(a) and affirmitem 1(a).\u00a0 He finds that the judge erred in finding that the employer is notresponsible for the operator’s failure to wear earplugs.\u00a0 When an employer relies ona workrule to achieve compliance with the standard, he must take steps to discoverviolations and effectively enforce the rule when infractions are discovered.\u00a0 SeeR. Zoppo Co., 81 OSAHRC 18\/A2, 9 BNA OSHC 1392, 1395, 1981 CCH OSHD ? 25,230, p.31,183 (No. 14884, 1981).\u00a0 There is no indication that New England attempted toenforce the rule requiring the wearing of hearing protection. Biano, the companyvice-president, testified that not all employees wore earplugs.\u00a0 He stated thatemployees neglected to wear the plugs even after he \”[t]old them to get them.\”\u00a0 Biano couldn’t \”think of a procedure we have for disciplining people for notwearing them.\”\u00a0 For these reasons, Commissioner Cleary concludes that NewEngland failed to adequately implement its safety rule and thus could, with the exerciseof reasonable diligence, have known of the violation.\u00a0 See Marson Corp.,82 OSAHRC 29\/C4, 10 BNA OSHC 1660, 1663, 1982 CCH OSHD ? 26,075, p. 32,804 (No. 78-3491,1982).Commissioner Cleary would also characterize New England’s violations ofsections 1910.95(a) and (b)(1) as repeated because the Potlatch test was met.\u00a0 There was a 1976 Commission final order involving the same standards and excessivenoise from the same machine.Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action can betaken by the Commission with the affirmative vote of at least two members.\u00a0 Toresolve their impasse and permit a resolution of this long-pending case, Chairman Buckleyand Commissioner Cleary have agreed to affirm the judge’s decision but accord it theprecedential value of an unreviewed judge’s decision.[[11]]\u00a0 See LifeScience Products Co., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313(No. 14910, 1977), aff’d sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).Accordingly, the judge’s decision is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED:\u00a0 DEC 28 1984\u00a0The 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).\u00a0FOOTNOTES:[[1]] This standard provides:? 1910.106 Flammable and combustible liquids. * * *(e) Industrial Plants–* * *(2) Incidental storage or use of flammable and combustible liquids– * * *(iv) Handling liquids at point of final use. (d) Flammable or combustible liquids shall be drawn from ortransferred into vessels, containers, or portable tanks within a building only through aclosed piping system, from safety cans, by means of a device drawing through the top, orfrom a container or portable tanks by gravity through an approved self-closing valve.\u00a0 Transferring by means of air pressure on the container or portable tanks shall beprohibited. [[2]] These standards provide in part:? 1910.95 Occupational Noise Exposure.(a) Protection against the effects of noise exposure shall be provided when the soundlevels exceed those shown in Table G-16 when measured on the A scale of a standard soundlevel meter at slow response.* * *(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–PERMISSIBLE NOISE EXPOSURES[[1]] Duration per day, hours Sound level dBA slow response 8…………………………………………………….. 90 6…………………………………………………….. 92 4…………………………………………………….. 95 3…………………………………………………….. 97 2…………………………………………………… 100 1 1\/2 ……………………………………………… 102 1……………………………………………………. 105 1\/2…………………………………………………. 110 1\/4 or less………………………………………… 115 [[1]] When the daily noise exposure is composed of two or more periods of noise exposureof different levels, their combined effect should be considered, rather than theindividual effect of each.\u00a0 If the sum of the following fractions: \u00a0C1\/T1+C2\/T2[+…+]Cn\/Tn exceeds unity, then, the mixed exposure should be considered toexceed the limit value.\u00a0 Cn indicates the total time of exposure at a specified noiselevel, and Tn indicates the total time of exposure permitted at that level.Exposure to impulsive or impact noise should not exceed 140 dB peak soundpressure level.[[3]] Section 17(a) of the Act provides:Any employer who willfully or repeatedly violates the requirements of section5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act,or regulations prescribed pursuant to this Act, may be assessed a civil penalty of notmore than $10,000 for each violation.[[4]] Chairman Buckley finds it unnecessary here to decide whether the testenunciated in Potlatch is correct, particularly with respect to whether a singleprior Commission final order is a sufficient basis for characterizing a violation as one\”repeatedly\” done regardless of when or where the prior violation occurred.[[5]] Under the scheme of the Act, no penalty is assessed for de minimisviolation.\u00a0 A penalty of up to $1,000 may be assessed for a non-serious violation.\u00a0 A penalty of up to $1,000 must be assessed for a serious violation.\u00a0 Apenalty of up to $10,000 may be assessed for a willful violation or against one whoviolates a standard repeatedly.\u00a0 A penalty of up to $1,000 per day may be assessedfor failing to correct a violation.\u00a0 Sections 9(a) and 17(a) – (d), 29 U.S.C. ??658(a) and 666(a)-(d).[[6]] Potlatch has been followed in every circuit where the\”repeated\” issue has been examined in its light. See J.L. Foti Constr.Co. v. OSHRC, 687 F.2d 853 (6th Cir. 1982); Dun-Par Engineered Form Co. v.Marshall, 676 F.2d 1333 (10th Cir. 1982); Willamette Iron & Steel Co. v.Secretary of Labor, 10 BNA OSHC 1477 (9th Cir. 1982)(unpublished); Communications,Inc. v. Marshall, 672 F.2d 893 (D.C. Cir. 1981).\u00a0 In Bunge Corp. v. Secretaryof Labor, 638 F.2d 831 (5th Cir. 1981), the Fifth Circuit noted its general agreementwith Potlatch, but disagreed only as to the allocation of the burden of proof,holding that the Secretary must show that conditions were substantially similar.[[7]] A dosimeter displays the percentage of the permissible dose of noisethat an employee received during the time he wore the dosimeter.\u00a0 Thus, a 200%reading on a dosimeter indicates that the employee had been exposed to twice the dosepermitted by the noise standard; an employee exposed to 100 dBA for 1 hour would be shownto have received 50% of the permissible dose.\u00a0 The circuitry of a dosimeter is sodesigned that it in effect registers the duration of each sound level over 89 dBA anddetermines the ratio of that duration to the permissible duration for that sound level,which is given in Table G-16 of the standard.\u00a0 It then, in effect, adds that ratio toall other such ratios, cumulating exposures to varying noise levels in the manner statedby the footnote to the table.\u00a0 When the dosimeter is read, it gives the total ofthose ratios in percentage form.\u00a0 An employee might, for example, be exposed to soundlevels of 110 dBA for 1\/2 hour, 97 dBA for 1 hour, and no sound over 89 dBA for 6 hours,resulting in a dosimeter reading of 133%.\u00a0 One can calculate that exposure to aconstant noise level of 92.1 dBA over 8 hours would result in a dose of 133%. \u00a0However, because a dosimeter does not retain each sound level and its duration, one cannotdetermine from a dosimeter reading what each sound level was and how long it lasted.[[8]] Although the compliance officer recommended other steps, some wereshown to be technologically infeasible, such as coating the metal conveyor belt.\u00a0 Ofthe others, the compliance officer supplied no estimate of the possible benefit. \u00a0Therefore, the discussion is confined to the compliance officer’s proposal for a muffleron the air exhaust of the pneumatic lifter.[[9]] New England was required to implement engineering changes following the1976 inspection–changes which did not reduce employee exposure to within Table G-16levels.\u00a0 The Secretary cannot now seek to impose additional engineering requirementswithout demonstrating that the control will accomplish its intended purpose of bringingNew England into compliance without the need for earplugs.\u00a0 Any different resultopens the door for the Secretary to revisit New England’s facility and find a violationuntil such times as the amalgam of controls does achieve its purpose.[[10]] The record indicates that the compliance officers who conducted the1976 inspection, the compliance officer who conducted the 1978 inspection, and Aetna, NewEngland’s insurer, all identified exhaust from the pneumatic lifter as the primary noisesource. New England’s vice-president disagreed with this view.\u00a0 However, New Englandnever conducted a noise survey until after it installed the disputed muffler on thepneumatic lifter following the 1978 inspection.\u00a0 Although the record is silent on theresults of New England’s noise survey, Commissioner Cleary would infer from theinstallation of the muffler that it was a feasible engineering control.\u00a0 Cf.Fed. R. Evid. 407.[[11]] As established by the Act, the Commission is composed of threemembers.\u00a0 Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Presently, the Commission has twomembers as a result of a vacancy.”