“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0px; margin-bottom:0px; line-height:1.5; margin-top:0; font-size:11pt; font-family:Calibri; color:WindowText; } p { font-family:Times New Roman; font-size:12pt; margin-top:0px; margin-bottom:0px; line-height:1.5; font-size:11pt; font-family:Calibri; } p.style_Normal { margin-top:0px; margin-bottom:0px; line-height:1.5; font-size:11pt; font-family:Calibri; } .style_Normal span { font-family:Calibri; } span.style_DefaultParagraphFont { } table.style_TableNormal { } table.style_TableGrid { } .style_TableGrid span { font-family:Calibri; } p.style_Header { margin-top:0px; margin-bottom:0px; line-height:1.5; line-height:1; } span.style_HeaderChar { font-size:11pt; font-family:Calibri; } .style_HeaderChar span { font-family:Calibri; } p.style_Footer { margin-top:0px; margin-bottom:0px; line-height:1.5; line-height:1; } span.style_FooterChar { font-size:11pt; font-family:Calibri; } .style_FooterChar span { font-family:Calibri; } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:96px;margin-top:96px;margin-bottom:96px;margin-right:96px;} div.basic { width:16.51cm;height:22.86cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NO. 80\u20134057\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRED STAR MARINE SERVICES, INC.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tSeptember 4, 1985\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tThe Secretary\u2019s notice is construed as a motion for leave to withdraw the citation and is granted. The citation is vacated and this proceeding is dismissed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRay H. Darling, Jr.\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tSEP 4 1985\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NO. 80\u20134057\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRED STAR MARINE SERVICES, INC.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAugust 2, 1982\t\t\t\t\t\t\t\t\t\tAPPEARANCES:\t\t\t\t\t\t\t\t\t\tPaul Katz, Esq., for Complainant\t\t\t\t\t\t\t\t\t\tJames M. Kenny, Esq., for Respondent\t\t\t\t\t\t\t\t\t\tDECISION AND ORDER\t\t\t\t\t\t\t\t\t\tThis case arose under 29 USC, sec. 651 et seq. of the Occupational Safety and Health Act of 1970 (the Act). As a result of an inspection by the Occupational Safety and Health Administration [OSHA] of the Respondent\u2019s premises on March 19, 1980 to May 29, 1980, Citation 1 was issued on or about July 3, 1980, charging that the Respondent violated sec. 5(a)(2) of the Act by the serious violation of the standards at 29 CFR 1910.95(a), (b)(1) and (b)(3) [respectively items 1A\u2013C of Citation #1]; and the other than serious violation of the standard at 29 CFR 1910.145(c)(2) [item 1 of Citation #2].\t\t\t\t\t\t\t\t\t\tOn July 10, 1980, the Respondent filed Notice of Contest to items 1A\u2013C of Citation #1 and item 1 of Citation #2, and the penalties proposed therefor. The Complainant withdrew item #1B of Citation #1 and Citation #2 . . . Tr. 3, 4.\t\t\t\t\t\t\t\t\t\tREOPEN THE CASE?\t\t\t\t\t\t\t\t\t\tDue to the unavailability of Judge Hassenfeld after the hearing had been completed, the case was assigned to me. While the Complainant indicated willingness to agree to a decision by me based on the Transcript, Record, and Briefs, the Respondent requested a new hearing so that the credibility of witnesses could be tested. That request is denied for the reasons stated below.\t\t\t\t\t\t\t\t\t\tAt the hearing on October 15 and 16, 1981, the only witnesses were the OSHA inspection officer [Bocynesky], the Respondent\u2019s engineer [Merrill], the OSHA expert industrial hygienist [Ratney], and an OSHA compliance officer [Kaletsky]. All were called by the Complainant.\t\t\t\t\t\tKalesky\u2019s\t\t\t\t\t\ttestimony was practically unimportant as he merely authenticated official court documents concerning the search warrant.\t\t\t\t\t\t\t\t\t\tThe Transcript clearly discloses that there was no serious effort to challenge the credibility of any witness either by cross-examination or by other testimony or evidence. In fact, the Respondent\u2019s defense seemed to be that the Complainant had not made out a case on the testimony; and, in any event, that the Complainant\u2019s evidence should have been suppressed because the search warrant was invalid and illegal. Credibility of any witness was not really in issue.\t\t\t\t\t\t\t\t\t\tThe Transcript and Record both establish that each party had every full and fair opportunity to present its side of the case at the hearing. It is clear that no question was raised at the trial about the credibility of any witness; nor has there been and need to choose between witnesses. It is also clear that the probability of any change in the facts that might be elicited at a re-hearing seems to be very slight. In those circumstances, it is my opinion that the case should not be reopened. That is particularly true when [as here] it is apparent that any evidence to be offered at the reopening was available to the parties at the original trial.\t\t\t\t\t\t\t\t\t\tFor the reasons cited, the case will not be reopened but will be decided on the Transcript, Record, and Briefs.\t\t\t\t\t\t\t\t\t\tThe pertinent sections of the Act and the standards are appended to this decision under appropriate titles.\t\t\t\t\t\t\t\t\t\tTHE ISSUES:\t\t\t\t\t\t\t\t\t\t1. Was the inspection of the \u2018Stamford\u2019 legal and valid?\t\t\t\t\t\t\t\t\t\t2. Did the noise in the Stamford\u2019s engine room exceed that permitted by Table G\u201316?\t\t\t\t\t\t\t\t\t\t3. Did the Respondent provide a continued and effective hearing conservation program?\t\t\t\t\t\t\t\t\t\tTHE INSPECTION:\t\t\t\t\t\t\t\t\t\tThe Respondent operates a tugboat and marine towing service. Two of its tugboats are the \u2018Stamford\u2019 and the \u2018New Haven\u2019. As a result of an employee\u2019s complaint (Exh. C\u20131), an OSHA Compliance Officer on May 9, 1980, obtained a search warrant authorizing the inspection of the two tugboats [Exh. C\u20133, C\u20136]. This warrant stated that it was valid only to May 19th, but the time was apparently extended to May 29th. I find that the warrant was properly issued on May 9th and was extended to include Mary 29th. It was presented to the Respondent on May 12th. Inspections of the Stamford were made on May 27 and May 29.\t\t\t\t\t\t\t\t\t\tOn May 14th, the Respondent\u2019s assistant office manager [Rosenbaum] told OSHA Compliance Officer\t\t\t\t\t\tBocynesky\t\t\t\t\t\tthat the Respondent would not consent to an inspection of the tugboats. However, on May 15th, Rosenbaum informed\t\t\t\t\t\tBocynesky\t\t\t\t\t\tthat the Respondent had changed its mind and had decided to allow the inspection . . . Tr. 20\u201332, 42, 43, 54.\t\t\t\t\t\t\t\t\t\tThe Complainant contended that the inspection was based on a valid Search Warrant or the Respondent\u2019s consent or both. I find that the inspection was valid and legal on both grounds.\t\t\t\t\t\t\t\t\t\tEXCESSIVE NOISE:\t\t\t\t\t\t\t\t\t\tAlthough the Compliance Officer inspected the tugboat Stamford on both the 27th and 29th of May, the decision in this case is based on the inspection of the 29th because the evidence established that conditions were \u2018normal\u2019 or \u2018representative\u2019 on that date according to the Respondent\u2019s engineer [Merrill], the assistant office manager [Rosenbaum], and \u2018management\u2019 whereas \u2018the crew members, the captain and the engineer\u2019 said the 27th was not a \u2018normal\u2019 day . . . Tr. 146\u2013152, 164, 165.\t\t\t\t\t\t\t\t\t\tBecause the Respondent\u2019s tugboat (the Stamford) is \u2018automated\u2019, the engineer does not have to spend all his time in the engine room but merely monitors instruments outside the engine room that alert him to any problem that requires his presence in it . . . Tr. 117. The uncontradicted testimony of the Respondent\u2019s engineer [Merrill] tended to establish that he usually spent over two hours in the engine room during a six hour shift . . . Tr. 123, 124, 127.\t\t\t\t\t\t\t\t\t\tMerrill testified that he wore earmuffs 99% of the time in the engine room; and that other employees who merely passed through it did not normally wear earmuffs . . . Tr. 115, 116.\t\t\t\t\t\t\t\t\t\tThe testing was performed with a general radio noise dosimeter and a sound level meter. The dosimeter was set at A scale, slow response, and was calibrated . . . Tr. 58\u201362. On both May 27th and May 29th, the tests clearly established that the engineer [Merrill] was exposed to excessive noise in the engine room. On May 29th, the dosimeter was worn for 322 minutes and recorded a decibel percentage reading of 385.6%, or 104.5 decibels, which exceeded the limit allowed in Table G\u201316. For Merrill\u2019s entire time on May 29th, the decibel percentage reading was 435.1%, or 99.96 dBA. Although that volume of noise is allowable for only two hours, Merrill was exposed to it for over eight hours [525 minutes] . . . Tr. 78\u201390.\t\t\t\t\t\t\t\t\t\tHEARING CONSERVATION PROGRAM:\t\t\t\t\t\t\t\t\t\tThe uncontradicted evidence established that the Respondent did not have a continued and effective hearing conservation program. Compliance Officer\t\t\t\t\t\tBocynesky\t\t\t\t\t\ttestified that the\t\t\t\t\t\tRespondent\u2019s office manager [Smith] said the Respondent had not monitored for noise or given employees audiometric testing . . . Tr. 113. The Complainant\u2019s well-qualified expert [Ratney] testified that audiometric testing is the only real quality control and is a very important part of any hearing conservation program. He pointed out that it costs $5 to $15 per employee . . . Tr. 238, 239. Obviously, such a program is easily feasible.\t\t\t\t\t\t\t\t\t\tINJURY:\t\t\t\t\t\t\t\t\t\tIn my opinion, there was not sufficient evidence to establish a \u2018substantial probability that death or serious physical harm could result\u2019. As a result, I find that the violation was merely \u2018other than serious\u2019.\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT:\t\t\t\t\t\t\t\t\t\tHaving read the Transcript, Record, and Briefs, and examined the exhibits, the following Findings of Fact are made:\t\t\t\t\t\t\t\t\t\t1. At all times concerned, the Respondent regularly received, handled or worked with goods which had moved across state lines.\t\t\t\t\t\t\t\t\t\t2. As concerns Items #1A & C of Citation #1, an employee was exposed to sound levels exceeding those listed in Table G\u201316, and a continuing, effective hearing conservation program was not administered.\t\t\t\t\t\t\t\t\t\t3. The conditions described in Items #1A & C of Citation #1 exposed the Respondent\u2019s employee to sustaining harm because of the hazard of noise creating deafness.\t\t\t\t\t\t\t\t\t\t4. One or more officers or supervisory personnel of the Respondent knew of the hazardous conditions described herein and knew that an employee was exposed to such hazard.\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t1. At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act; and the Occupational Safety & Health Review Commission has jurisdiction over the subject matter and the parties.\t\t\t\t\t\t\t\t\t\t2.\t\t\t\t\t\tAt all times\t\t\t\t\t\tconcerned, the Respondent knew, or with the exercise of due diligence should have known, of the alleged violation.\t\t\t\t\t\t\t\t\t\t3. On the date in question, the Respondent was not in compliance with the standards at 29 CFR 1910.95(a) and (b)(3); and the Complainant has sustained the burden of proving the Respondent violated sec. 5(a)(2) of the Act (sec. 654).\t\t\t\t\t\t\t\t\t\t4. The Complainant has not sustained the burden of proving the Respondent violated the standards at 29 CFR 1910.95(b)(1) and 29 CFR 1910.145(c)(2), respectively item 1B of Citation #1 and item 1 of Citation #2.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tThe whole record having been considered, and due consideration having been given to 29 U.S.C., sec. 666(j), it is ordered:\t\t\t\t\t\t\t\t\t\t1. Items 1A and 1C of Citation #1 are affirmed, without penalty, as other than serious violations.\t\t\t\t\t\t\t\t\t\t2. Item 1B of Citation #1 and Citation #2 are vacated.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOSTER FURCOLO\t\t\t\t\t\t\t\t\t\tJUDGE, OSHRC\t\t\t\t\t\t\t\t\t\tDated: August 2, 1982\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBoston, Massachusetts\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAPPENDIX\t\t\t\t\t\t\t\t\t\tTHE ACT\t\t\t\t\t\t\t\t\t\tSection 654 [section 5(a)(2)] Employer \u2018. . . shall comply with occupational safety and health standards . . .\u2019\t\t\t\t\t\t\t\t\t\tSection\t\t\t\t\t\t666 [section 17(c)] \u2018. . . employer who has received a citation for a violation of . . . this Act . . . specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.\u2019\t\t\t\t\t\t\t\t\t\tSection\t\t\t\t\t\t666 [section 17(j)] \u2018. . . assess all civil penalties . . . giving due consideration to . . . the size of the business . . . gravity of the violation, the good faith of the employer, and the history of previous violations.\u2019\t\t\t\t\t\t\t\t\t\tSection 666 [section 17(k)] \u2018. . . a serious violation shall be deemed to exist . . . if there is a substantial probability that death or serious physical harm could result . . . unless the employer did not, and could not . . . know of the presence of the violation.\u2019\t\t\t\t\t\t\t\t\t\tTHE STANDARDS\t\t\t\t\t\t\t\t\t\t1910.95(a): \u2018Protection against the effects of noise exposure shall be provided when the sound levels exceed those shown in Table G\u201316 when measured on the A scale of a standard sound level meter at slow response . . .\u2019\t\t\t\t\t\t\t\t\t\t1910.95(b)(3): Where there is excessive sound, \u2018a continuing, effective hearing conservation program shall be administered.\u2019\t\t\t\t\t\t\” \t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t”