“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13068 \u00a0 PABST BREWING COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 23, 1982ORDER OF REMANDBefore: ROWLAND, Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? OnDecember 17, 1982, the Commission issued its decision in Sun Ship, Inc., OSHRC Docket No. 16118. In accordance with thedecision of the U.S. Supreme Court in AmericanTextile Manufacturing Institute, Inc. v. Donovan, 101 S.Ct. 2478 (1981) (?ATMI?), the Commission held that?feasible? under the occupational noise standard means achievable. TheCommission overruled the cost-benefit test of feasibility previously set forthin Continental Can Co., 76 OSAHRC109\/A2, 4 BNA OSHC 1541, 1976?77 CCH OSHD ?21,009 (No. 3973, 1976), appeal withdrawn, No. 76?3229 (9th Cir.Apr. 26, 1977), and substituted a test consistent with ATMI.??????????? Inview of this intervening change in law, the judge?s decision with respect tothe alleged violation of section 1910.95(b)(1) is vacated. The case is remandedfor further proceedings, including evidentiary submissions, so that theinterrelated issues of technological and economic feasibility can bereconsidered in light of the test of feasibility established by Sun Ship, Inc.[1]?SO ORDERED?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: DEC 23, 1982\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13068 \u00a0 PABST BREWING COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 25, 1978DECISION AND ORDER ON REMANDAPPEARANCES:Stephen J. Simko, Jr., Esquire, Office ofthe Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf ofcomplainant.\u00a0Mr. J. D. Fleming, Jr., Esquire,Sutherland, Asbill and Brennan, Atlanta, Georgia, on behalf of respondent.?STATEMENT OF CASELARKIN, JUDGE??????????? Thiscase is on remand from the Occupational Safety and Health Review Commission(Commission). Respondent (Pabst) operates a brewery at Perry, Georgia. On April7, 1975, Pabst as cited [2] for a non-seriousviolation of section 5(a)(2) of the Occupational Safety and Health Act of 1970(Act) for failure to conform with 29 C.F.R. ? 1910.95(b)(1).[3]??????????? Theareas left in issue are Filling Rooms, I, 2, III East and III West.??????????? InFilling Room I, cans are filled with beer in two 100-spout fillers, operatingat a rate of approximately 90,000 cans per hour each, for a total filling rateof approximately 180,000 cans per hour. Two employees operate these fillers. InFilling Room 2, cans are filled with beer in two 88-spout fillers, each ofwhich processes approximately 72,000 cans per hour, for a total filling rate ofapproximately 144,000 cans per hour. Two employees operate these fillers. Afterbeing filled, the cans from Filling Rooms I and 2 move to a pasteurizer outsideof the filling rooms. Twelve-ounce non-returnable bottles pass from a bottlesterilizer into Filling Room III East, where they are filled in a 72-spoutfiller at a rate of approximately 42,000 bottles per hour. One employeeoperates this filler. Returnable and non-returnable bottles, primarily 12-ouncereturnable bottles, pass from the bottle sterilizer into Filling Room III West,where they are filled in a 100-spout filler at a rate of approximately 36,000bottles per hour. Two employees, one to operate the filler and one to operate asoaker-discharger, work in Filling Room III West. After being filled, bottlespass from Filling Rooms III East and III West into a pasteurizer.??????????? FillingRooms I and 2 are approximately 40 feet by 70 feet. Filling Rooms III East andIII West are approximately 40 feet by 60 feet. The rooms have concrete blockwalls with plaster ceilings.??????????? ThePackaging Center normally operates on three daily eight-hour shifts. All of thefillers are operated about 70% of the time during the day shift. As few as twofillers may be operated on a shift and it is rare that all of the fillers arerun except on the day shift. The operators normally spend between 6.5 and sevenhours per shift in the filling rooms. Other personnel come into the fillingrooms, including maintenance, utility, clean-up, and supervisors but theirexposure time is not in issue.??????????? InFilling Rooms III East and III West, the operators monitor the fillingoperation. They correct bottle jams and feed crowns at the crowner chute. Theoperators move along a platform 12 to 14 feet long. If problems occur theyspend 70% to 80% of their time at the crowner, two to four feet away from thefiller. Otherwise, they spend approximately 50% of their time at the crowner.??????????? InFilling Rooms I and 2, the operators feed lids to the canning machine andmonitor along an 18-foot platform. Approximately 60% of the time is spentfeeding lids to the seamer and 40% is spent at other locations. The operatorsfeel the cans to detect indentations and remove foreign material in the seamercausing the problem. The operator must clear jams, sometime to the extent ofusing crowbars. The can lines run approximately 70% to 75% of the time.??????????? Thenoise measurements on March 12, 1975, and June 23, 1977, in the four fillingrooms were as follows:Room IIIWest Noise Levels \u00a0 Location \u00a0 98-105 \u00a0 platform \u00a0 98 \u00a0 platform – cap machine \u00a0 102 \u00a0 platform – filler area \u00a0 98-101 \u00a0 platform – soaker discharge \u00a0 98-100 \u00a0 floor – between conveyor and soaker discharge \u00a0 \u00a0Room IIIEast 103 \u00a0 platform – filler \u00a0 98-102 \u00a0 platform \u00a0 101.5 \u00a0 platform – machine running and not filling \u00a0 \u00a0Room 2 91-92 \u00a0 platform – machine running and not filling \u00a0 97-98 \u00a0 platform – machine filling \u00a0 97.5 \u00a0 east machine – cap filling location \u00a0 97-98 \u00a0 filler area \u00a0 97 \u00a0 between filling machines \u00a0 98 \u00a0 behind machine \u00a0 \u00a0Room I 102-103 \u00a0 west machine – filling platform \u00a0 102 \u00a0 between machines \u00a0 101-103 \u00a0 east machine – platform \u00a0 101 \u00a0 east doorway \u00a0 102 \u00a0 conveyor line – between machines \u00a0 \u00a0??????????? Inareas of possible excessive noise, signs requiring hearing protection areposted and Pabst employees are required to use personal hearing protectors.??????????? Theworkers in Filling Rooms I, 2, III East and III West wear muffs. These muffswill lower noise at the eardrum by at least 30 dBA or to a level between 68 and72 dBA.??????????? OnJune 23 and 24, 1977, Dr. Thomas H. Melling, Hampshire, England, agreed upon bythe parties as an expert in acoustical engineering and noise control inbreweries, inspected Pabst?s facility to determine the feasibility ofengineering controls to reduce the noise levels. Dr. Melling?s report wasreceived into evidence by agreement of the parties.??????????? Twocomponents make up the noise level in a room with machinery running. The firstis the direct noise from the machines. The second is the reverberant levelproduced by all of the noise sources in the room. The direct noise level at theoperator?s ear decreases as he moves away from the machine. If the machine iscompact, such as a motor or a pump, the direct noise level decreases byapproximately six dBA with each doubling of the distance from the center of themachine. For example, if the direct noise level is 102 dBA when the operator istwo feet from a pump, it falls to 96 dBA when he moves to four feet from thepump. If the machine is elongated rather than compact, such as in the case of aconveyor line, the direct noise level decreases by approximately three dBA foreach doubling of the distance of the operator from the center of the machine.For example, if the direct noise level is 102 dBA when the operator is two feetfrom a conveyor, it falls to 99 dBA when he moves to a distance of four feet.The reverberant sound level is constant throughout the room and does not dependon the location of the operator.??????????? Noiselevels in dBA cannot be added directly. Instead, the total sound power must bedetermined by adding the power from each source. The total noise level can thenbe calculated from the equation: L = 10 log (P\/C)where L is the sound level in dBA, P is the soundpower, and C is a constant. As an approximation, a doubling of the sound powerwill increase the total noise level by approximately three dBA. If a roomcontains two machines, each of which produces a sound level at a given positionof 90 dBA, the total resulting sound level will be 93 dBA. Similarly, if thedirect sound level at an operation?s position is 95 dBA and the reverberantsound level is 95 dBA, the total sound level at that position will beapproximately 98 dBA.??????????? Theforegoing considerations indicate that the sound level at the operator?sposition in a room containing machinery will be made up of the reverberantsound level and the direct sound level produced by the machines. If eithernoise component greatly exceeds the other, that component will be the majorcontributor to the total sound level and efforts to reduce the total soundlevel will depend on taking steps to reduce the predominating component. Ifboth components are of comparable magnitude, reduction of the overall noisewill require reduction of both components.??????????? The directnoise level may be reduced by a properly designed shield or enclosure whichseparates the operator from the sound source. In some cases, it may also bepossible to redesign or modify the equipment in order to decrease the directsound power which is emitted. The reverberant level may be decreased byinstalling sound absorbing materials in the room in order to absorb a portionof the reverberant sound energy.Dr. Melling concluded:The filling rooms would require treatmentto reduce both the reverberant noise level and the direct noise level. For eachfilling room, absorptive treatment is necessary to reduce the reverberant noiselevel. The absorbent material specified was a textured vinyl coated tilemanufactured by Owens Corning, Inc., having an absorption coefficient of 0.6.For the bottle filling rooms, Filling Rooms III East and III West, the directnoise level could be reduced by enclosing the bottle conveyors with ?Clear& Quiet? panels produced by Body Guard, Inc. The Body Guard panels are madeof corrugated clear plastic, with wedges of plastic-capped foam in thecorrugations. The direct noise from the crowner could be decreased byinstalling a shield made of plastic material similar to that used in the BodyGuard screens and the Holstein and Kappert crowner could be modified to reducethe direct noise level by rebuilding the crown injection system. For the canfilling rooms, Filling Rooms I and II, the direct noise level from the seamercould be decreased by covering the seamer opening with a plastic materialsimilar to that used in the Body Guard shields. Also, the direct noise levelcould be reduced by enclosing in metal enclosures hydraulic power packs, usedto operate the fillers.???????????? Theengineering controls were itemized and the cost estimated by Dr. Melling asfollows: AREA \u00a0 RECOMMENDED TREATMENT \u00a0 COST ESTIMATE \u00a0 Filler Room I \u00a0 1130 ft2 absorptive treatment to walls\/ceilings \u00a0 $ 720 \u00a0 \u00a0 \u00a0 Screens over seamer open areas\u00a0 \u00a0 $ 800 \u00a0 \u00a0 \u00a0 Enclosures for hydraulic power packs \u00a0 $2,000 \u00a0 Filler Room 2 \u00a0 1130 ft2 absorptive treatment to walls\/ceilings \u00a0 $ 750 \u00a0 \u00a0 \u00a0 Screens over seamer open areas \u00a0 $ 800 \u00a0 \u00a0 \u00a0 Enclosures for hydraulic power packs \u00a0 $2,000 \u00a0 Filler Room III East\u00a0 2200 ft2 absorptive treatment to walls\/ ceilings \u00a0 $1,500 \u00a0 \u00a0 \u00a0 Bottle conveyor covers \u00a0 $1,200 \u00a0 \u00a0 \u00a0 Conveyor screens at filler\/crowner \u00a0 $1,000 \u00a0 Filler Room III West \u00a0 2600 ft2 absorptive treatment to walls\/ ceilings \u00a0 $1,500 \u00a0 \u00a0 \u00a0 Modifications to H & K Crowner \u00a0 $3,000 \u00a0 \u00a0 \u00a0 Conveyor screens at filler\/crowner \u00a0 $1,000 \u00a0 \u00a0 \u00a0 TOTAL \u00a0 $16,270 \u00a0 \u00a0??????????? Thecost estimate was obtained by Dr. Melling by talking with proposed suppliers byphone.??????????? As anexperiment to test Dr. Melling?s proposals, Pabst installed the aboverecommended applications for Filler Room III East adding an additional 100square feet of absorptive tile. The installation cost Pabst $9,815. Based uponthe difference between Dr. Melling?s cost estimate and Pabst?s actual costexperience, the total cost of application of the four rooms would be $43,160 inlieu of Dr. Melling?s estimate of $16,270. This would indicate a cost of thecontrols per employee of $1,570 per employee for Filling Room I; $1,556 peremployee for Filling Room 2; $3,272 per employee for Filling Room III East; and$2,432 per employee per employee for Filling Room III West.??????????? Duringthe period from 1974 through October, 1977, Pabst spent a total of $6,100.90 toprovide 266 employees with personal hearing protectors at an average annualcost per employee of $6.12.??????????? Engineeringpredictions are made by either theoretical predictions, empirical predictionsor a combination of both. A theoretical prediction is based on a fundamentalanalysis of physical phenomena. An example of a theoretical prediction is theknowledge that the amount of force necessary to accelerate a mass at a givenrate is equal to the product of mass and acceleration. Because theoreticalpredictions are based on physical phenomena fully explained, they tend to bevery accurate. In many practical situations, the controlling factors are toocomplex to permit theoretical analysis. In such a case, it is necessary to makean empirical prediction based on experimental data correlated in an orderlyfashion. With empirical predictions, it is not unusual to find errors of 20%.If theoretical predictions are used without all of the conditions knownaccurately or if empirical predictions are used, an error must be anticipatedin the prediction. The techniques which Dr. Melling used in his study werebased on theoretical equations interpreted and applied by using empirical predictions.This prediction makes heavy use of experience and calls for the application ofjudgment. Because judgment is involved, predictions would vary some betweenconsultants. Dr. Melling anticipated his predictions could error as much as 2dBA in sould level and 60% in sound power.??????????? Dr.Melling predicted that the engineering controls which he specified could reducethe noise level in all four filling rooms to 91.5 dBA. With Dr. Melling?sestimate of as much as 2 dBA error in his predictions, the actual noise levelresulting from implementation of the controls could be as high as 93.5 dBA.??????????? Ifthe noise level in the filling rooms could be reduced to 91.5 dBA byimplementing the controls specified by Dr. Melling, the allowable exposure timewithout personal hearing protectors would be 6.5 hours. Theoretically, a workerexposed to 91.5 dBA for 6.5 hours would not need to wear personal hearingprotectors. The normal work day at Pabst consists of eight hours with a lunchbreak of 30 minutes and two 15-minute coffee breaks. On days with no equipmentmalfunctions, the workers are exposed for seven hours. Because of thepossibility of error in Dr. Melling?s calculations and an exposure on some daysof seven hours instead of 6.5 hours used by Dr. Melling, the filling roomemployees would need to continue wearing personal hearing protectors.??????????? Inassessing the effect of a change in sound level, the term ?doubling rate? isused to indicate the sound level decrease, in dBA, which decreases the effectby one half. A doubling rate of three dBA is internationally recognized as theproper doubling rate to be used in assessing the effects of a change in soundlevel on hearing damage. Under this criterion, hearing damage is a directfunction of the sound power level or the sound energy level.??????????? Usinga doubling rate of three dBA, the percent change in sound power or sound energywhich results from a change in sound level from L1 dBA to L2 dBA is given byDelta P = 100(10.IL2\/10.IL1-1)To evaluate the effectiveness of a particular noisecontrol, a cost-benefit ratio, in dollars per percent of sound energyreduction, may be calculated by dividing the cost of the control of eachprotected worker by the percent of sound energy reduction. A high ratioindicates that the control is costly compared with its benefits.??????????? Pabstadministers pre-employment audiometric tests to all new employees and annualaudiometric examination to employees who are employed in high noise areas. Ifany hearing problems are detected, the company refers the employees to thecompany physician. Pabst has invested over $5,000 in equipment used in thehearing conservation program and spends over $3,000 annually on audiometrictests. The annual cost of the audiometric examination program is $7.58 peremployee tested.??????????? Pabsthas experienced no difficulty in insuring that its employees use personalhearing protectors. No workmen?s compensation claims for hearing impairmenthave been made.??????????? TheSecretary has never adopted any regulations, rules, interpretations, guidelinesor standards to define the meaning of the term ?feasible? administrative orengineering controls.??????????? It isthe Secretary?s practice not to give employers any guidelines or informationwhich identify feasible controls when a citation is issued. That practice wasfollowed in this case.??????????? Neitherthe citation nor the complaint specified the noise levels alleged to exist atthe cited locations, the amount of reduction in noise levels which complainantexpected Pabst to accomplish, nor any method of noise control which Pabst couldimplement in order to abate the alleged violations.??????????? Anabatement period cannot be specified until a specific control is identified, asupplier is located, and the delivery and installation times have beendetermined. The one-year abatement period proposed in this case was not basedon any analysis of these factors.??????????? Theabatement period of one year in this case was selected because it was customaryto set a one-year period since such a period did not require the approval ofthe OSHA regional office.ECONOMIC FEASIBILITY??????????? Theultimate decision in the case rests upon whether the government has carried itsburden of proving that the proposed engineering controls are ?economically andtechnologically feasible.? It is concluded that the Secretary has not carriedthat burden.??????????? Althoughbound by Commission precedent[4] it is difficult to ignorewithout comment the validity of respondent?s argument that the term ?economicfeasibility? is so vague that it violates the due process clause of the FifthAmendment. Respondent argues:In order for the Commission to hold thatthe term ?feasible? is sufficiently definite, the meaning of the included term?economic feasibility? must be sufficiently clear that it need not be definedby statute or regulation in order to inform an employer what he must do toavoid a violation.?The relevant criteria were stated by theTenth Circuit, in the specific context of OSHA standards, in Brennan v. Occupational Safety and HealthReview Commission, 505 F.2d 869 (10th Cir. 1974). The basic rule is:?A statute which is so vague that men ofcommon intelligence must necessarily guess at its meaning and differ as to itsapplication violates due process. This rule applies to regulations.? 505 F.2dat 872 (citations omitted).???????????? Thedecision as to whether or not a standard meets this test is ?governed by the?reasonable man? concept.? Id at 873.The noise standard is not impermissibly vague if a reasonable person coulddecide whether or not a noise control measure is ?economically feasible.?Respondent respectfully submits that neither complainant, respondent nor eventhe Commission can reasonably make that decision.??.. . it should be noted that complainant has never promulgated any regulation,rule, interpretation, guideline, or standard in order to advise the public what?feasible? means. . . .??Respondent respectfully submits that thenoise standard does not ?delineate its reach in words of common understanding.?Brennan v. Occupational Safety and HealthReview Commission, 505 F.2d 869, 872 (10th Cir. 1974). When a panel ofexperts selected by complainant cannot agree on what ?feasible? means, and whencomplainant?s own industrial hygienist states that ?it?s a vague term? which hecannot evaluate, it would be ludicrous to hold that ?feasible? is a word ofcommon understanding. No reasonable man, no employer, and not even a reasonableexpert can be held at his peril to know what he is commanded to do by astandard which directs him to employ ?feasible? noise controls.????????????? TheCommission has stated its position in TurnerCo., supra, by quoting the following except from the case of Union Camp Corporation, supra:?Any standard given the necessaryspecificity, as respondent suggests, to meet the objection of one employerwould be necessity contain variable factors which would call for differentconclusions by different employers under different or even the samecircumstances. It is manifest that engineering or administrative controls cannot be specified to meet the varying noise levels of every employer. Yet allmust be subject to regulation if the objective of the Act is to be achieved.How does one accomplish this objective? Requiring specifications as to how toreduce noise levels for every known sound in excess of the permissible limitswould be an insurmountable obstacle to the enforcement of the Act. Theobjective of the Act would be totally frustrated insofar as noise exposure isconcerned. Thus the standard must necessarily be expressed in general terms anddepend for its application upon the circumstances of each case. The employer isrequired to think and use his expertise gained in the operation of his businessin order to comply with the standard. This is not grounds for declaring astandard vague and unenforceable. Due process does not require that an employerbe informed as to every course of action he is to take.????????????? It isdifficult to understand how the compounding of mass confusion furthers thepurposes of the Act. Failure to force the government to establish guidelines inthe noise field will result in many years of useless litigation with theultimate cost passed on to the American consumers and especially the Americanworker already being destroyed in an economy out of control.??????????? Respondentcorrectly points out that what is meant by the term ?economic feasibility? willbe as varied as the number of people questioned. To compound such massconfusion by failing to force the government to set forth guidelines in thenoise field is especially devastating to the small employer fighting forsurvival in an attempt to comply with the regulations of a myriad of governmentagencies.[5]??????????? Howis the small employer to handle the situation? How is the small employer goingto know how to proceed as to his noise problem? To be exact, to find out whatis required under the present regulation and Commission position, ultimatelyrequires litigation because each employer, of necessity, cannot know what?economic feasibility? means as to his individual operation. His first recoursemust be an appeal to the Commission. There as is obvious in the Turner case,supra, his problem is only compounded. The Secretary contends that ?economicfeasibility? is limited to whether the costs of the controls would result inputting the employer out of business. SeeCastle & Cooke Foods, A Division of Castle & Cooke, Inc. supra.Each Commissioner has his own ideas. Then, as in Turner, the case is reversed by the Court for the Commission todefine the term ?economic feasibility? as to the specific facts in issue andthe whirlwind begins again. By then the complexity of the Commission haschanged with a new member who probably has his own concept of what is meant by?economic feasibility.? In the interim litigation costs mount and emphasize toan attorney properly representing large or small employer that his client maynever know what the term ?economic feasibility? means as applicable to hisbusiness because he does not have the financial resources to find out?and thisis due process under the Constitution . . . to put the situation in thevernacular ?Thomas Jefferson would turn over in his grave.???????????? Again,it is mere folly to say that the government cannot tell its citizenry what isexpected of them in the noise field. The Secretary in this case has brought an internationallyrecognized expert in the noise field from England at a probable fantastic costto defend against the vagueness of the regulation. This witness has joined thehorde of other persons in expressing his understanding of what is meant by theterm ?economic feasibility.? If this witness can establish criteria in thiscase, then the government could use him to establish published regulationsapplicable to the industry. Rather than expend vast sums of money in expertwitness fees and litigation costs, wouldn?t the purposes of the Act be fargreater served by recognizing that the regulation ?. . . is so vague that menof common intelligence must necessarily guess at its meaning? and violates dueprocess???????????? Guidelinesmust be established. If not done on an administrative level, it will have to bedone by the Courts. The Commission rather than fulfilling its statutory role asa quasi-judicial body has attempted to establish guidelines as the alter ego ofthe Secretary. This function instead was placed by Congress with the Secretarywho has statutory authority to make law by issuing regulations that must musterdue process.??????????? Theultimate effect of the regulation is that government is saying to its citizenry?you tell government what is meant? rather than the government telling itscitizenry. For the citizenry to find out what ?economic feasibility? meanslegally it must litigate. This is not government by and for the people, this ispeople subservient to and for government.??????????? TheCommission attempts to soften the impact of its position by stating to theemployer, you spend what may amount to thousands of dollars to apply controlsand if your efforts are unacceptable to a government inspector, your good faithattempt will be rewarded by the Commission as the proposed penalty which cannot exceed $1,000 under section 17(c) of the Act will be adjusted. See footnote12 of the Commission?s decision in TurnerCo., supra.??????????? Dueprocess ultimately means fairness. There is no way that fairness can be foundregarding this regulation whether applicable to the Secretary, the Commission,the worker or the employer. Instead, ridiculous position after ridiculousposition will be justified on the grounds it is a public act involving safetyand health. Does such purpose justify that the basic concepts of a democracy asprotected by the Constitution should be ignored? The purposes of the Act cannot be furthered by attempting to uphold such a vague and indefiniteregulation.??????????? However,being bound by Commission precedent, an attempt will be made to determinewhether the proposed controls in this case are ?economically feasible.? TheCommission has expressed ?economic feasibility? in terms of a ?cost benefit?concept. More specifically the Commission stated in Continental Can Co., Inc., supra:. . . any significant reduction in ambientnoise levels which are above G?16 limits will tend to provide some protectionto the hearing of employees. But we cannot overlook the fact that protectionagainst most of the detrimental effects of excessive noise can be achievedthrough the use of a relatively reliable and convenient type of personalprotective equipment. Additionally, the effects of excessive noise are gradualrather than sudden, and a certain amount of exposure to continuous noise levelsas high as 115 dBA is permitted by the standard itself.?Other factors to be considered in thebenefits which noise reduction will achieve include the number of employeesexposed to excessive noise, and the net reduction in their exposure which engineeringor administrative controls can reasonably be expected to produce. As to thelast noted factor we would emphasize that the benefits to be obtained will varyaccording to the magnitude of the noise levels existing prior to the impositionof controls. Cost factors which must be considered include both the directcosts of installing and maintaining controls, and indirect costs due to anyloss of productivity or efficiency resulting from their implementation. Thislist is not meant to be all-inclusive. We cannot here establish specificguidelines which will be applicable to all cases. The ultimate determination ineach individual case must be made by weighing all the relevant factors in lightof the objectives of the Act.??As to the merits, the Secretary contends:??????????? 1.Pabst exposed its employees to noise levels in excess of those listed in TableG?16.??????????? 2.Pabst failed to utilize feasible administrative or engineering controls toreduce noise levels and 21 employees were exposed to levels two to four timesthose listed in Table G?16.??????????? 3.The government does not have to prove that administrative or engineeringcontrols are economically or technologically feasible, but even assuming thatit does, it has carried that burden, and??????????? 4.The controls recommended by the government?s expert were available at the timeof the initial inspection.??????????? Inresponse to the Secretary?s first and second arguments, Pabst concedes that thenoise levels in the areas in issue exceed the levels listed in Table G?16.Instead, Pabst points to the protection afforded by personal hearing protectorsand the fact such protectors lower the sound levels at least 22 dBAs below theengineering controls proposed by the expert.[6]??????????? Theparties are in substantial disagreement as to the Secretary?s third argumentand it will be considered in conjunction with Pabst?s contentions.??????????? Pabstdoes not pursue the argument on brief that the proposed controls were notavailable at the time of the inspection. With exception of the H & Kcrowner, Dr. Melling testified that similar materials were being used in Europeprior to the inspection date.??????????? Thereare other areas of controversy as to the facts that must be reconciled. Mostcrucial to the case is whether the proposed controls will eliminate the needfor personal hearing protectors. The Secretary assumes this fact on brief andit is concluded it is not supported by the weight of the facts of record. Pabstcontends that even accepting the expert?s findings, personal protectors muststill be worn. Pabst?s position is supported by admissions of Dr. Melling andtestimony of Pabst?s safety director. The expert?s findings were based upon a6.5 hour day and a conclusion that the controls would lower the sound levels to91.5 dBA. The 91.5?dBA level is the maximum permissible exposure time for 6.5hours under Table G?16. The expert admitted a margin of error and obviouslythere would have to be some margin of error in speculating as to the ultimatesound reduction of untested controls. This possible error was estimated by Dr.Melling at 1% to 2% in sound level or 60% in sound power (Tr. 211). Also, onsome days the employees are exposed for at least seven hours. For these reasonsthe expert conceded:?Q So if in fact your prediction is off asmuch as 2 DB?s and this is what is found when the controls are tested, thenthis is the allowable time. This is the average time, so that on the averagethey?re overexposed one and a half hours, and on maximum days they?reoverexposed for two hours???A Yes.??Q Now, based on all of that, if you?reresponsible for the safety program at this plant, surely you?re not going tolet the employees discontinue the use of hearing protectors? That?s fair tosay, isn?t it???A That?s fair to say.??Q And in fact, unless you could have a veryconvincing safety factor in here you probably would not want [to] risk thehealth of your employees enough to discontinue the use of hearing protectors,is that right???A That?s right.? (Tr. 219)???????????? Theparties are in disagreement as to the estimated costs of the proposed controls.Dr. Melling obtained his estimated costs by telephoning proposed suppliers.Pabst installed the proposed controls in Filling Room III East. The actualexperience of Pabst would be entitled to greater weight than cost estimatesobtained by phone due to the possibility of misunderstandings andmisconceptions that are likely to occur during phone conversations.[7] Pabst?s actual cost forFilling Room III East are more reliable to use as a basis for arriving atultimate estimated costs.??????????? Insupport of his contention that the proposed controls are ?economicallyfeasible,? the Secretary relies heavily upon the maintenance cost of $5,000,000expended by Pabst annually and the original equipment costs of approximately$1,800,000 to $2,000,000. The Secretary argues that one percent of capitalcosts of the equipment is convincing that the costs of proposed controls are?economically feasible.???????????? Pabstargues that the ?cost-benefit? concept should be applied by comparing the costper dBA reduction per employee provided by personal hearing protectors againstthe cost per dBA reduction per employee pr vided by the proposed controls.Pabst points out that the ?cost-benefit? concept must be considered in thelight of whether the proposed controls will eliminate the wearing of thepersonal hearing protectors. Pabst emphasizes that personal hearing protectorsreduce the sound levels 22 dBA below the threshold limits at a cost of $6.12per employee, while even the Secretary?s most optimistic cost figures show $592per employee and will not eliminate the wearing of the personal hearingprotectors.??????????? TheSecretary?s argument that the costs of the controls are reasonable whenconsidered in the light of Pabst?s annual maintenance costs and the capital costsof the equipment adds little to a ?cost-benefit? concept. Sizeable capital andmaintenance costs are at most indicative that an employer can afford thecontrols. Pabst does not challenge this fact and the Commission majority hasrejected the Secretary?s argument that ?economic feasibility? is limited solelyto ability to afford the controls. SeeContinental Can Co., Inc., supra.??????????? Pabst?sapproach does add significance to a ?cost-benefit? concept. If cost per dBA ofreduction is considered in the light of benefit to each employee, someguideline is established that could be applicable to all employers irrespectiveof the size of the employer or the number of employees involved. Actually, thebenefits to the individual employee in the light of the cost to the employer ofthe control for each employee is the crux of what a cost-benefit concept shouldbe all about. There is no better way to ultimately determine cost-benefit thanby weighing the cost of the control by the amount of sound reduction measured interms of dBA. This approach relates directly to Table G?16 and the reality ofwhether the control eliminates the wearing of personal hearing protectors.Although the Commission has held that controls may be required to reduce noiselevels even though the levels specified in Table G?16 are not reached, the factthat personal hearing protectors are not eliminated is a very important fact toconsider as to the benefit of the control to the employee. Actually from a?cost-benefit? concept the fact that the personal hearing protectors are noteliminated should be one of the more important considerations. If personalprotectors are not eliminated, the benefit of the proposed control to theemployee is at best minimal. This fact was recognized by the Commission in thefollowing quote from Continental Can Co.,Inc., supra, that ?. . . we cannot overlook the fact that protectionagainst most of the detrimental effects of excessive noise can be achievedthrough the use of a relatively reliable and convenient type of personalprotective equipment.???????????? Asstated, unless the cost-benefit concept is applied on the basis of cost per dBAof reduction in the light of benefit to each employee, the concept can not bemade consistently applicable to all employers. By this approach, a definiteguideline is established and there is better possibility of equal and fairapplication of the regulation to all employers, irrespective of size or thenumber of employees affected.??????????? Thehigher the ratio between the costs of the proposed controls and the costs ofpersonal hearing protectors in situations where the protectors are noteliminated, the greater the indication that the costs are excessive and thebenefit minimal. The facts in the instant case emphasize the importance of therecognition of inexpensive personal hearing protectors especially where thecontrols fail to eliminate their use. The facts of record show that thepersonal hearing protectors cost $6.12 per employee. The Secretary?s mostoptimistic cost shows $592 per employee. The personal hearing protector willreduce the noise conservatively to 68 dBA or 23.5 dBA lower than theSecretary?s most optimistic assumed results. Pabst breaks down its comparativecost-benefit argument even further by comparing costs on the basis of percentageof sound removed by hearing protectors as against the proposed controls. Thiscomparison indicates a cost-benefit ratio for hearing protectors of six centsversus $6.50 to $13.89 depending on the filling room involved. The resultsbecome of even greater magnitude when the reduction of percentage of soundbetween the protectors and proposed controls are compared.??????????? Theexpert testified:?Q. Looking at it strictly from thestandpoint of economic feasibility, though, if I can get down to 68 dBA at acost of $6.12, you agree with me that purely on an economic basis, given thechoice of these two, the economic choice, of course, must be hearingprotectors???A Yes.??Q And I think you said earlier thatreally, hearing protectors, anytime this is an allowable choice, is bound to bethe better economic choice???A Yes.??Q On an economic basis, there?s noquestion in your mind that hearing protectors are economically the preferablechoice???A In this instance, yes.? (Tr. 301).???????????? Thefacts indicate in the instant case an extremely high costs ratio and theprotectors must still be worn. When these facts are weighed in the light of theadmissions of the government?s expert witness as to cost-benefit concepts, theonly logical legal conclusion remaining is that the Secretary has failed tocarry his burden of proving that the proposed engineering controls are?economically feasible.?ENGINEERING FEASIBILITY??????????? Pabstquestions whether the acoustical tile and the Body Guard shield can be used inits plant because of sanitation problems. It relies upon Great Falls Tribune, supra, holding that the Secretary?s burdenincludes proof that the proposed controls can be used in the employer?sworkplace.??????????? Dr.Melling testified that the Body Guard could be designed without the acousticalmaterial. Although this testimony is an ultimate conclusion of fact, in view ofhis expertise, the statement is accepted as sufficient to carry the Secretary?sburden.??????????? However,a different conclusion must be drawn regarding the acoustical tile.??????????? Dr.Melling did not determine the working environment in the filling rooms. He didnot determine the hazard involved from movement of cartons, ladders or otherdevices that might damage the tile. Although he testified that tile wasintended to be placed higher than the workmen, this does not assure thatcartons and the necessity to use ladders would not damage the tile. Obviously,a vinyl coating no thicker than one thousandth of an inch would be verysusceptible to sharp edges or an object exerting even slight pressure. Dr.Melling?s statement that the tile had been used in breweries in Europe or onoffshore platforms is not sufficient to shift the burden back to Pabst to goforward with the evidence, much less sufficient to carry the Secretary?s burdenof persuasion. The reason, of course, is that the Secretary failed to layfoundation that Dr. Melling knew the working conditions at Pabst or that thebreweries in Europe were the same in design as Pabst?s facility and, of course,there was no foundation laid that the operation at Pabst has any bearing tooffshore platforms. To emphasize the problem with the Secretary?s failure ofproof, Dr. Melling?s pertinent testimony was as follows:?Q All right. Now, again, in answer to myquestion, just so we?ll have it on the record, you don?t know of any breweriesusing the H & K Crowner in America – – – I?m sorry, modification of the H& K Crowner???A No I don?t.?Q How many breweries, what fraction ofbreweries in America use the acoustical tile that you suggest of your own knowledge???A I don?t know.??Q How many breweries in America haveenclosed hydraulic power packs to your knowledge, what fraction of them???A I don?t know.??Q Now, I?m leaving something out, Dr.Melling, what is it? Oh, Body Guard, how many breweries in America to yourknowledge are using Body Guard on the conveyors???A I don?t know.??Q Do you know how many breweries inAmerica have shielded, covered the bottom of the seamer in America???A No.??Q So that with regard to Pabst, in termsof these specific modifications, you?re not able to evaluate how widely any ofthese are used in America in breweries???A Given time I could find out, yes.??Q Right, but I mean here today???A Here today, no.? (Tr. 229, 230)??Q If the – – – let?s be sure the Courtunderstands what we?re talking about with the tile now. Acoustical tilenormally is very porous and very absorbant, right???A Yes.??Q As it needs to be to be a good soundabsorber???A Right.??Q So that this material up here, if I putit in a bucket of paint would soak that paint up rapidly, right???A Yes.??Q It would be kind of like the televisioncommercial that one of the flouride (sic) toothpastes puts on where they take apiece of chalk and they put it in a dye and very, very quickly you get acolored ring, right???A Yes.??Q Now, the only way that you can put thistile in the Pabst Brewery is by preventing that kind of thing, right???A Yes.??Q Because if material starts sopping upin there you?d have a terrible sanitation problem, right???A Yes.??Q And the FDA would be on your neck,true???A I believe so.??Q So what?s been done here it to coatthis tile with an impervious vinyl film, correct???A Yes.??Q How thick is that film???A It?s of the order of thousands of aninch.??Q A couple of mils, maybe???A Umh.??Q Two thousandths of an inch thick???A Yes.??Q And if you make it a thick film, ofcourse, then the tile would no longer function as an acoustical absorbant???A Correct.??Q So we have here a vinyl film maybe .001to .002 inches thich (sic)???A Yes.??Q Now, I can take my thumb nail andscrape it across this film and destroy it very easily???A Yes.??Q So that if someone comes into thebottling plant with a stack of beer bottles and happens to rub across thesurface of that film it would damage it, wouldn?t it???A It would indeed, but let?s get thisinto perspective. That treatment is quite high up, it deliberately placed abovehead height, etcetera so it will be reasonably free from damage.??Q And how many times do people bringladders, big stacks of cartons in there that would go up above the level of thetile???A In the case of Pabst, I have no idea.??Q But you wouldn?t be surprised it doesoccur from time to time???A I wouldn?t be surprised.??Q But from what you know of thismaterial, you wouldn?t disagree with me that it may or may not provestructurally satisfactory at the Pabst plant? You know it will absorb noise,but you don?t know whether its?s going to prove that it?s too easily damaged tostay up, isn?t that true, Dr. Melling???A I would agree with you, yes.? (Tr.231?234)??Q. No, how long would you expect thematerial to last in place???A Well, again I can call on my experienceback in the United Kingdon (sic) where we have used similar materials not onlyin breweries, but offshore platforms, which I?m sure you will accept as being amore rugged environment than a brewery. It?s been very satisfactory and verylittle damage.? (Tr. 314).???????????? Onthe basis of the overall record, it must be concluded that the Secretary hasfailed to carry his burden of persuasion that the acoustical tile is a feasibleengineering control adaptable to Pabst?s operation.ULTIMATE CONCLUSIONS OF FACT, LAW, DECISIONAND ORDER??????????? 1.Respondent is engaged in a business affecting commerce within the meaning ofsection 3(5) of the Act.??????????? 2.The Commission has jurisdiction over the parties and the proceeding.??????????? 3. OnMarch 12, 1975, the noise levels in Filling Rooms 1, 2, III East and III Westof Respondent?s packaging center exceeded the limits of Table G?16 of 29 C.F.R.? 1910.95(b)(1).??????????? 4.The employees exposed to the noise levels in Filling Rooms 1, 2, III East andIII West were protected by personal protective equipment.??????????? 5.Due to the high cost ratio between the engineering controls proposed by theSecretary and the personal hearing protectors where the controls will noteliminate the wearing of the protectors, the Secretary has failed to prove thatthe costs of the proposed controls are feasible when weighed in the light ofthe benefits to the employee.??????????? 6.The Secretary has failed to prove that on March 12, 1975, and January 10, 1978,that economically feasible engineering controls existed for use in Filling RoomsI, 2, III East and III West of respondent?s packaging center at Perry, Georgia.??????????? 7.The Secretary has failed to prove that acoustical tile was technologicallyfeasible for installation on March 10, 1975, and January 10, 1978, in FillingRooms I, 2, III East and III West of respondent?s packaging center at Perry,Georgia.??????????? 8.The respondent was not in violation of section 5(a)(2) of the Act for failureto conform with 29 C.F.R. ? 1910.95(b)(1).DECISION AND ORDERWherefore it is ORDERED:??????????? Thecitation issued on April 7, 1975, is vacated and no penalty is assessed.?Dated this 25th day of July, 1978.?JOHN J. LARKINJudge[1] Chairman Rowlanddissents. He would not remand the case for further proceedings. Consistent withhis dissenting opinion in Sun Ship,he concludes that the requirement in section 1910.95(b)(1) that feasibleadministrative or engineering controls be utilized is invalid.[2] The citationdescribed the violation of 29 C.F.R. ? 1910.95(b)(1) as follows:Failureto use feasible engineering or administrative controls to protect employeesfrom exposure to hazardous noise levels exceeding those specified in 1910.95Table G?16. Violations occurred in the Filling Room # III?West, Filling RoomNo. III, East, No. 2 Filling Room, No. 1 Filling Room, Machine Operators in CanPackaging Area, Uncaser and Rinser Operator, Label Machine Operators, H & KPacker Machine Operator, SK Glue Machine Operator, 3 West Uncaser & RinserOperator and Bottle Pasteurizer Operator.LongRange Abatement: April 9, 1976AnAbatement Plan shall be submitted by: July 5, 1975?[3] The standard at29 C.F.R. ? 1910.95(b)(1) provides:Whenemployees are subjected to sound exceeding those listed in Table G?16, feasibleadministrative or engineering controls shall be utilized. If such controls failto reduce sound levels within the levels of Table G?16, personal protectiveequipment shall be provided and used to reduce sound levels within the levelsof the table. TABLE G?16?PERMISSIBLE NOISE EXPOSURES1 Duration per day, hours Sound level dBA slow response 8 90 6 92 4 95 3 97 2 100 1 ? 102 1 105 ? 110 \u00a0[4] Continental Can Co., Inc., 76 OSAHRC109\/A2, 4 BNA OSHC 1541, 76?77 CCH OSHD ?21,009 (Docket No. 3973, August 24,1976), pet. for rev. withdrawn; Turner Co., 76 OSAHRC 108\/A2, 4 BNA OSHC1554, 76?77 CCH OSHD ?21,023 (Docket No. 3635, August 24, 1976) rev. CA 7; Castle & Cooke Foods, A Division ofCastle & Cooke, Inc., 77 OSAHRC 87\/A2, 5 BNA OSHC 1435, 77?78 CCH OSHD?21,854 (Docket No. 10925, May 19, 1977); UnionCamp Corp., 74 COSHRC 25\/C5 (8\/31), 1 BNA OSHC 3385, 73?74 CCH OSHD ?17,576(Docket No. 3905, May 1, 1974); Great Falls Tribune Co., 77 OSAHRC86\/B7, 5 BNA OSHC 1443, 1977?78 CCH OSHD ?21,844 (Docket No. 6632, May 19,1977).[5] Respondent pointsto the requirements of the Food and Drug Administration and Internal RevenueService as two of the agencies directly involved in this case in addition toOSHA. Very little imagination is required to recognize the many other agencieswith voluminous regulations affecting respondent?s operation.[6] Although theSecretary refers to administrative controls in his brief, no facts were offeredthat administrative controls were applicable or feasible and it has not beenconsidered as an issue.[7] The witnessrecognized he was working under a time limitation and the difficulty dealingwith suppliers (Tr. 198, 203). Also, the rising costs of materials due toinflation are a matter of common knowledge.”