“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 1551 REYNOLDS METALS COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 25, 1976?DECISIONBEFOREBARNAKO, Chairman; MORAN and CLEARY, Commissioners.BARNAKO,Chairman:Theissue in this case is whether Respondent (Reynolds) violated 29 C.F.R. ?1910.95(b)(1)[1] at its can manufacturingplant in Torrance, California. Judge Harold A. Kennedy found that Complainanthas failed to prove the violation, and vacated the citation. For the reasonswhich follow, we affirm.Theplant at issue contains a production area 500 by 260 feet in size. Cans aremanufactured on six production lines containing a total of 126 pieces ofequipment. The plant operates 24 hours per day, with three shifts of workers.Each employee normally spends 7 hours and 20 minutes per shift in theproduction area. Each production line is shut down for one day every six weeksfor regular maintenance. Otherwise, the plant runs continuously, with onlyoccasional shutdowns of individual machines for emergency repairs.Complainant?srepresentative made measurements of the noise levels throughout the productionarea. His measurements, made over durations ranging from 30 seconds to severalminutes, showed levels ranging from 92? to 105 dBA. At most locations, thenoise levels were between 95 and 100 dBA. All employees working in the areawere protected from the effects of excessive noise by the use of personalprotective equipment.Complainantpresented an expert witness who was highly experienced in noise control, buthad no personal knowledge of the conditions in Reynolds? plant. He was of theopinion that standard noise control techniques, such as enclosing some machinesand installing sound absorbing material on the walls and ceiling of the area,might achieve some reduction in the noise levels. When asked, however, whetherhe could recommend ?specific things that could be done and that would, in factreduce the noise level,? this witness frankly answered. ?No, I couldn?t,without an evaluation of the plant.?Reynolds?operations manager testified that a number of controls had already beenimplemented to reduce noise levels. For example, nylon facing had been added tothe rails of the conveyers along which the cans moved. All equipment had beenmounted on rubber cushions. Mufflers had been installed to reduce noisegenerated by air discharge. The effort to reduce noise was continuing, andReynolds was planning to attempt further controls. The witness, however, didnot think that enclosures between machines would be feasible because thesemight interfere with the air balance in the plant, causing fumes to accumulateand creating other problems. Additionally, he did not think that soundabsorbing material on the walls and ceiling would achieve a significant reductionin noise.TheJudge found that the evidence failed to establish that the exposure ofReynolds? employees to noise exceeded the levels specified in Table G?16. Hefound that ?(t)he evidence indicates that Respondent?s operations werecontinuous, but it was not established that the noise levels in Respondent?splant were continuous.? We do not agree with the latter conclusion. It is truethat, with insignificant exceptions, the operations in the plant werecontinuous. And since these operations were the source of the noise, the onlyreasonable conclusion which can be made is that excessive noise levels werealso continuous within the range measured by Complainant?s representative. Wehave previously held that a showing of excessive noise can be made by the useof spot readings if other evidence shows that exposure of employees to thenoise levels so measured existed for a period of time in excess of thatpermitted by the standard. Sun Shipbuilding and Dry-dock Company, 11OSAHRC 171, BNA 2 O.S.H.C. 1181, CCH E.S.H.G. para. 18,537 (1974); See also WRPLumber Co., OSHRC Docket No. 4612 (Dec. 16, 1975). The facts here arewithin the prior cases.Weagree, however, with Judge Kennedy?s conclusion that Complainant failed toprove the existence of feasible engineering controls to reduce noise.[2]The testimony of Complainant?s expert shows only that general techniques toreduce noise exist. It does not show that any particular controls are feasibleto reduce the noise in Reynolds? plant. Indeed, this witness specificallystated that he could not recommend any such controls.[3]Additionally, the testimony of Reynolds? plant manager rebutted the suggestionthat machine enclosures or sound treatment of the walls and ceiling would befeasible.Complainantargues that the fact that Reynolds is planning to install further controls toreduce noise shows the feasibility of such controls. We do not agree. Simplybecause an employer may be attempting to reduce noise does not prove that hisefforts will succeed. Additionally, it would be anomalous to find Reynolds inviolation of the standard solely on the basis of evidence that it wasattempting to comply.Accordingly,the Judge?s decision vacating the citation for violation of 29 C.F.R. ?\u00a01910.95(b)(1)is affirmed. It is so ORDERED.FOR THECOMMISSION:William S.McLaughlinExecutiveSecretaryDATE: FEB 25,1976?MORAN,Commissioner, Concurring:Iagree with the disposition of this case because the complainant failed toestablish that either administrative or engineering controls would have reducedthe noise in the respondent?s plant to the permissible levels specified in 29C.F.R. ? 1910.95(b)(1).Itis also clear to me on the basis of the record in this case that complainantfailed to prove that the noise in respondent?s plant to which its employeeswere exposed at the time of the inspection exceeded the levels of noiseprohibited by ? 1910.95(b)(1) for the durations of time listed therein.Accordingly, I agree that Judge Kennedy?s decision should be affirmed. In orderthat readers of this decision can study the full text of exactly what we areherewith affirming, I incorporate Judge Kennedy?s decision by reference andattach it hereto as Appendix A.?CLEARY,Commissioner, DISSENTING:Iagree with the Chairman that excessive noise levels in the plant were proved.But I respectfully disagree with his conclusion that the Secretary of Laborfailed to prove the existence of feasible engineering controls to reduce noise.My disagreement stems from the apparent burden of proof placed upon complainantand the use of expert testimony in carrying that burden.Thelead opinion notes specifically that complainant?s expert was ?highlyexperienced in noise control, but had no personal knowledge of theconditions in Reynolds? plant? (emphasis added). Rather, it was pointed outthat the Secretary?s noise expert could not recommend specific things to reducenoise without an evaluation of respondent?s plant. This testimony is quotedverbatim.Thefirsthand observation of an expert witness is only one of several possiblesources for expert opinion. See, Rule 703 of the Federal Rules of Evidence.Here, the facts that complainant?s expert had before him were made known to himat the hearing. They are set out in some detail in the lead opinion. In additionto those facts, complainant?s expert knew that there were approximately 126individual items of equipment in the 500 by 260 feet production area. Theequipment was arranged in six separate, but similar production lines. TheSecretary?s expert knew that the plant had a concrete floor and that the wallsand ceiling consisted of steel framing covered with aluminum siding. He hadavailable during his testimony, and had studied before hand, complainant?sexhibit 2, a detailed diagram of spot noise readings taken during theindustrial hygienist?s noise survey. From all of these facts complainant?sexpert was able to conclude that the noise in the Reynolds Metals? facilitycreated a ?reverberant? noise field.[4]TheSecretary?s expert then testified to the use of the propagation path approachto noise reduction. His testimony was that reverberation noise, generally,could be reduced by enclosing machines, by physically separating various partsof the process and by applying absorptive material to non-absorptive surfaces,thereby breaking up the paths of reverberating sound. The expert was presentduring the testimony of complainant?s other witnesses who testified to thephysical structure of the facility. From their testimony, he concluded that thepropagation path approach to noise reduction had not been implemented inrespondent?s facility.Inthe absence of an actual visit to respondent?s facility, the Secretary?sexpert?s testimony was all that could be expected. As an expert, he gave hisopinion based on relevant facts. The expert testified that there was apresently available feasible engineering control (the propagation path method)and that respondent had failed to implement it.Atthat point the Secretary had established that respondent?s employees were exposedto excessive noise for a period in excess of that permitted by the standard. Hehad also established that there were presently available general engineeringcontrols that are feasible. I would hold therefore that the Secretary hassustained his burden of proof.[5]I would presume[6] from the basic fact thatthere exist feasible engineering controls, the fact that they could be appliedin respondent?s 500 by 260 foot facility. I would adopt the presumption becauseof (1) problems of access to proof, and (2) it is a policy that is moreconsonant with the legislative purpose than the approach of the majority.[7]Asto access to proof,[8] it is clear thatrespondent?s personnel are in a superior position to that of a complianceofficer, or a noise expert who is not a Federal employee,[9]in having access to evidence as to whether the elements of the propagation pathmethod of noise control are feasible for respondent?s facility. (See, thediscussion of respondent?s evidence, infra.)Asto policy reasons, the role of the administrative agency is two-fold:Anadministrative agency must serve a dual purpose in each case. It might decidethe case correctly as between the litigants before it, and it must also decidethe case correctly so as to serve the public interest which it is charged withprotecting.[10]Thepurpose of the Act is clearly stated in terms of Congressional policy.[11]Where decisions of this kind confront the Commission the achievement of thispurpose must be given great consideration.[12]Thepresumption would impose upon Reynolds Metals, the party against whom it isdirected, the burden of proving that the non-existence of the presumed fact ofcontrols is more probable than its existence.[13]The testimony of Reynolds Metals? Can Operations Manager was that respondenthas added nylon facing to its track rails; covered cables along the track withplastic; installed mufflers on certain air discharge outlets and mountedequipment on rubber cushions. In addition, the Can Operations Manager notedthat the erection of physical barriers or enclosures to cut down on noise wouldcause an air imbalance causing cans in the ovens to be upset. Moreover, it washis testimony that the production tracks could not be enclosed becauseproduction quality control required clear visibility and easy access to themoving line of cans.Respondent?sCan Operations Manager?s testimony, offered to rebut the Secretary?s experttestimony, although completely creditable, in effect confirms the Secretary?sprima facie case. Thus, at various places in his testimony he noted thatReynolds Metals was:. . . [M]odifyingthe whole mechanism that drives the ram [on the D & I machines] . . . gofrom [an] air transfer?. . . [S]pendingalmost $200,000 on the printers, . . . to go from [an] air transfer tomechanical transfer . . ..?Andthis is a current situation. We have these fiber glass guards we?re putting onthe D & I presses. We have plans of?of moving some of the end operationsout of this facility which, of course, is going to render some implication thatwe should put in walls . . ., isolate the palletizers.Itwas his testimony that Reynolds Metals had an on-going program that wouldcontinue to attack its noise problem. By testifying to the various methods ofengineering controls then being implemented he was in essence saying: ?Yes,there are presently available feasible engineering controls, but, no, ReynoldsMetals had not completed their installation.?Thesefacts show a bona fide, albeit untimely, attempt on the part of Reynolds Metalsto comply with the noise standard. Clearly, its efforts should be given fullconsideration in passing upon any abatement order and on the matter of whetherany civil penalty should be assessed. But these efforts do not establish that,at the time of inspection, Reynolds Metals was in compliance with the noisestandard.APPENDIX A\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 1551 REYNOLDS METALS COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: October 18, 1973?DECISION AND ORDER?Appearances:Theresa Kalinski, Attorney, of LosAngeles, California for the Secretary of Labor.\u00a0Austin B. Graff, Esq. and WilliamH. Bass III, Esq., of Richmond, Virginia for the Respondent.?STATEMENTOF THE CASEHarold A.Kennedy, Judge, OSAHRCThisis a proceeding pursuant to Section 10 of the Occupational Safety and HealthAct of 1970 (29 USC 651 et seq., hereafter called the Act) contesting onecharge, Item No. 2, contained in a citation issued by the Complainant againstthe Respondent under the authority vested in Complainant by Section 9(a) ofthat Act.[14] The citation alleges thatas a result of the inspection of a workplace under the ownership, operation orcontrol of the Respondent located at 500 Crenshaw Boulevard, Torrance,California, on August 28, 1972, the Respondent had violated Section 5(a)(2) of theAct by failing to comply with certain occupational safety and health standardspromulgated by the Secretary of Labor pursuant to Section 6 thereof.[15]Thecitation, which was issued on September 13, 1972, alleges in Item No. 2 thereofthat the violation results from a failure to comply with the standard set forthat 29 CFR 1910.95(b)(1). The description of the alleged violation as set forthin the said citation states:Failure to controlnoise levels within those listed in Table G?16 by feasible engineering and\/oradministrative controls, i.e.1. at washers andovens2. at coaters3. at printers4. washers andflangers5. at super-sortersand palletizers6. at Bliss presses7. at activepresses.?TheSecretary?s complaint, filed with the Commission on October 26, 1972, alsoalleged violation of the standard appearing at 29 CFR 1910.95(b)(1) in the sameareas and one other, viz., at the ?D & I machines?.Thestandard appearing at 29 CFR 1910.95(b) provides as follows:When employees aresubjected 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.?(2) If thevariations in noise level involve maxima at intervals of 1 second or less, itis to be considered continuous.?(3) In all caseswhere the sound levels exceed the values shown herein, a continuing, effectivehearing conservation program shall be administered.?Table G?16?Permissible Noise Exposure Duration per day, hours Sound level dBA slow response 8 90 6 92 4 95 3 97 2 100 1? 102 1 105 ? 110 ? or less 115 \u00a0Thecitation prescribed abatement with respect to Item No. 2 as follows:Study, research,and\/or implement engineering controls with final report including abatementschedule due no later than March 1, 1973. (Monthly progress reports arerequired during study and abatement period.)TheSecretary?s representative, the Area Director of the Long Beach, Californiaoffice of the Occupational Safety and Health Administration, U.S. Department ofLabor (OSHA), proposed no penalty for the violation alleged in Item No. 2 ofthe citation. The case was heard on the merits at Los Angeles, California onJune 21, 1973.[16] Testifying for theSecretary were: Lehi Lorus Pitchforth, Jr., an OSHA Industrial Hygienist;Boleslaw Andrew Kagler, a private consultant in industrial noise control; andthree of Respondent?s employees, Leonard Davis, Dudley L. Washington and WalterStewart. Respondent recalled Mr. Davis to testify briefly on its defense andalso presented the testimony of William Korman, Operations Manager for theRespondent?s Can Division. No employee or representative thereof sought toparticipate in the proceeding.FINDINGSOF FACT1.The following matters were stipulated by the parties at the outset of thehearing (Tr. 9?12):A. Respondent isan employer which has employees engaged in a business affecting commerce withinthe meaning of the Occupational Safety and Health Act of 1970 (hereinafterreferred to as the ?Act?).B. On August 28,1972, an inspection of Respondent?s workplace at 500 Crenshaw Boulevard,Torrance, California, was conducted by Mr. Gerald Holmes, Compliance Safety andHealth Officer and by Mr. Lehi L. Pitchforth, Jr., Industrial Hygienist, U.S.Department of Labor Occupational Safety and Health Administration.C. A noisesurvey of the plant was conducted by Mr. Pitchforth during the afternoon ofAugust 28, 1972, between the hours of 4:30 pm and 5:25 pm. In making thissurvey, Mr. Pitchforth was accompanied by Mr. Ron Johnson, managementrepresentative. The instrument used by Mr. Pitchforth to make noise levelreadings is a General Radio Sound Level Meter, Model #1565?B. This instrumentwas calibrated by Mr. Pitchforth immediately before and after this inspectionon the 28th.D. The length oftime spent at each point by Mr. Pitchforth for a reading was approximately 30seconds to several minutes, but no more than 5 minutes. Only two employees wereinterviewed in this tour and they were in the deco area and were asked by Mr.Pitchforth how far they normally were from the pieces of machinery in question.E. During thecourse of the walk-around survey the management representative asked Mr.Pitchforth whether he could see the noise level readings, and Mr. Pitchforthresponded that the Department does not supply a copy of the readings althoughMr. Pitchforth was not hiding the meter.F. At the exitinterview on August 28 the Department?s representative made no attempt toreveal to the Respondent the specific readings at the various locations in theplant, although he did allow that he felt the plant had a noise problem. TheCompany representatives pointed out that there was a mandatory hearing out thatthere was in effect. When asked during this exit interview on August 28 whetheror not there were any other engineering steps that the Respondent might take,the representative of the Department of Labor did not have any specificsuggestions. No other noise inspections of the plant have been made by OSHArepresentatives since August 28, 1972.G. As a resultof the inspection, Respondent was issued a citation and notified of proposedpenalty on September 13, 1972. Item 2 in this citation alleged that the Companywas violating Section 1910.95(b)(1) of the standards by failing to controlnoise levels within the limits listed in Table G?16 of that standard byfeasible engineering and\/or administrative controls in seven places:(1) At washersand ovens(2) At coaters(3) At printers(4) Waxers andflangers(5) Atsuper-sorters and palletizers(6) At blisspresses(7) At activepressesAletter containing a notice of contest of this citation was then transmitted tothe Occupational Safety and Health Administration, Area Director, in LongBeach, California by the Respondent by letter dated September 27, 1972. Thisletter was in turn transmitted by the Area Director to the Occupational Safetyand Health Review Commission on October 10, 1972.H. A complaintwas issued against the Respondent by the Department of Labor on October 24,1972, alleging violation of Section 1910.95(b)(1) in the same areas as setforth in the citation, plus one other: The D & I machines.I. A prehearingconference was held on February 15, 1973, at which time the parties agreed thatthe issues are:(1)whether the noise levels at Respondent?s workplace exceeded the permissiblenoise exposures listed in Table G?16 of the standard set forth at1910.95(b)(1);(2)whether Respondent failed to utilize feasible engineering and\/or administrativecontrols.Itis agreed that there is no issue in this case that Respondent has not providedpersonal protective equipment which is effective in reducing sound levels topermissible levels under Table G?16.2.The parties also stipulated to the admissibility of a diagram that shows thelocation of various items of equipment and specific areas in Respondent?sTorrance can manufacturing plant (SX 1, Tr. 14?16). The manufacturingfacilities are housed in an area 500 feet long and 260 feet wide. Approximately126 individual items of equipment are arranged within the manufacturing area soas to provide six separate but similar production lines (Tr. 105, 299?300).Employee Davis testified that a line would include four D & I machines, awasher, oven, two coaters, coater oven, inner spray oven, a flanger, tester andpalletizer (Tr. 29). The diagram shows that a warehouse area (262 x 311) islocated immediately adjacent to the manufacturing area on the south.3.The construction of the building housing Respondent?s manufacturing facilitiesand the arrangement and operation of Respondent?s equipment therein are not indispute (Tr. 24?42, 94?105, 121?124, 136?8, 156?65). The building has concretefloors and metal walls and ceiling, consisting of steel framing and aluminumsiding. There are windows on one side where the dye room, tool room andcafeteria are located. Walls made of cement block or brick separate offices andcafeteria and certain areas within the plant (Tr. 30?5).4. Respondent?sTorrance plant operates 24 hours a day, seven days a week. Employee Davisexplained that four shifts work in rotation to keep the plant in continuous operationas follows (Tr. 25):* * * We have acontinuous operation and we have four crews, A, B, C and D crew, and it?s setup in a rotation where I?m off Wednesday of one week, Thursday, Friday thefollowing week. Saturday, Sunday, Monday and Tuesday of the following week andthen it returns to Wednesday off. * * *\u00a0Itis not usual for employees to work overtime. Mr. Davis testified that he hadworked on the average six days a week during the preceding year (Tr. 25).Employees stay in their own work area during each work shift as a rule, exceptfor two 10-minute coffee breaks and one 20-minute lunch break which they takein the cafeteria (Tr. 26, 121, 157).[17]5.Each line is periodically scheduled to be shut down for at least six hours formaintenance. Previously a line would be shut down on a Tuesday and another on aThursday of each week. Within the past year or so, however, only one line hasbeen shut down each week, which means that each line is serviced about everysix weeks. In addition, there are occasions when a line, or part of it, isclosed down for repairs. See Tr. 28?30, 39?42.6.Some of Respondent?s equipment at its Torrance plant has been changed in recentyears, but none of the employees who testified had noticed any change in thenoise level during their five years or more of employment (Tr. 38?9, 84, 125,135, 168). Mr. Davis pointed out, however, that it is not always possible tonotice the difference in the noise level even when a line is shut down,depending of course on one?s relative position to the equipment (Tr. 38?9).7.Respondent?s Can Operations Manager, William Korman, testified concerningRespondent?s efforts to combat ?a noise problem? at Respondent?s Torrance plant(Tr. 293). Mr. Korman testified that a noise survey conducted in September 1968indicated that there was ?elevated noise? in the plant which ?caused us to gointo a hearing protection program? (Tr. 317). Mr. Korman pointed out that therewere many sources of noise in the plant, including the release of air underpressure and empty cans bumping against one another (Tr. 293?4). According toMr. Korman, Respondent had taken steps before the inspection to reduce noiselevels in the plant, including the following: Added nylon facings on trackrails; covered cables with plastic; mounted equipment on rubber cushions;installed mufflers on certain air discharge outlets; installed shieldings, etc.He said that consideration has been given to doing other things to improve thenoise levels in the plant (e.g., removal of ?End Department? to a new locationand installation of roller bearings on conveyor tracks), but they had not beenaccomplished at the time of the inspection. There are, according to Mr. Korman,certain practical considerations which would limit the erection of barriers orenclosures to cut down on noise, however. For example, an air imbalance in theovens will upset cans in the ovens. Also, the production lines must be visibleto Respondent?s employees in order to assure quality of the cans beingproduced. See Tr. 293?327.8.OSHA Hygienist Lehi L. Pitchforth explained how he conducted the noise surveyat Respondent?s plant on August 28, 1972. After calibrating his noise meter,Mr. Pitchforth stated that he went through different areas of the plant andtook noise readings of ?30 seconds to a minute or perhaps longer? at variouslocations (Tr. 224). The readings were recorded first on a rough schematic mapor diagram of the plant and later transferred to a cleaner copy (SX 2a-b-c-d-e,Tr. 224?31). It was his understanding, he said, that the six lines operated on?basically identical lines? (Tr. 221). Mr. Pitchforth testified, and thediagram indicates, that the noise readings in the area of the foreman?s officeranged between 101?103 (Tr. 232). Reading in the 90?s were taken in the area ofthe washers and ovens along the East wall (supposedly a low noise area),coaters, printers, Bliss presses and other items of equipment (Tr. 232?4, SX2).9.Boleslaw Andrew Kugler is an Associate Manager in Charge of Industrial NoiseControl for Bolt, Beranek and Newman, a Southern California consulting firmconcerned with research and development in acoustics. He holds a bachelor?s anda master?s degree in engineering and has had experience in noise control. Hewas familiar with Mr. Pitchforth?s noise survey and the evidence presented bythe Secretary, including the testimony of Respondent?s three employees.10.Mr. Kugler testified that he was not in a position to suggest any?administrative noise control possibilities? (Tr. 265?6), but he did undertaketo express some opinions as to the use of engineering controls in Respondent?sTorrance plant. It was his view that a ?reverberant? noise field?where noiselevels remain essentially the same in all locations (Tr. 267)?existed incertain areas of Respondent?s manufacturing facility. He thought that treatmentof the walls and roof of the plant with absorptive surfaces could operate toreduce the noise in the areas of the machine shop and the inner-spray ovens toan acceptable level (Tr. 268). He also pointed out that the concrete floorscould be covered with some absorptive material, such as carpeting, and thatcertain noise areas could be enclosed and others separated from quieter areasby a barrier. He added (Tr. 269):?Damping ofvibrating panels on some of these machines is another approach that could beused in lowering noise levels for machines that are required.?Fromreading the information that was provided to me and from the testimony that wasgiven this morning, I don?t see that none of these attempts have been made sofar. So, although I cannot specifically say what can be done in terms of noisecontrol, and how effective that noise control would be, I feel that I don?t seeany evidence of any engineering noise control activities that haven?t takenplace.[18]DISCUSSIONTheburden of proof is upon the Secretary to establish violation of the citedstandard and the Act (Rule 73 of the Commission?s Rules of Procedure). Suchstandard requires, first, that the Secretary show that the noise exceeded thesound levels and the exposures indicated in Table G?16 and, second, thatRespondent failed to utilize feasible administrative or engineering controls toreduce such noise levels. The Secretary established neither the first elementnor the second, and, therefore, the citation must be vacated.Withrespect to the first element, Respondent contends that the tests conducted bythe Secretary were insufficient to establish that ?the impermissible soundlevel existed for the prohibited length of time and that those sound levelscoexisted with the employees? exposure.? According to Respondent, in order toshow that the exposure limit was exceeded it was necessary for the Secretary totake noise level readings for the time periods specified in the standard?e.g.,two hours for a 100 dBA reading or eight hours for a 90 dBA reading. Respondentalso argues that the Secretary?s noise survey did not establish that employeeswere exposed to excessive noise inasmuch as it was not shown that employeeswere working where the meter readings were taken. On this phase of the case itis only necessary to consider the contention dealing with the duration of theSecretary?s sample noise readings.[19]Forthe Secretary to prevail here, it was incumbent upon him to show that theimpermissible noise levels continued for the times specified in Table G?16(ranging from 15 minutes or less for a 115 dBA level to eight hours for 90DBA). Such was not established. The evidence indicates that Respondent?soperations were continuous, but it was not established that the noise levels inRespondent?s plant were continuous. Without such proof the Secretary?s noisesamples were inadequate and the evidence insufficient. It is possible that thesound levels in Respondent?s Torrance plant continued for the time periodsprescribed (or even increased), but it can not be presumed that such occurred.Butit would not have been enough to sustain the citation and complaint even if thenoise in any of the specific areas referred to in the citation and complainthad exceeded the sound levels set forth in Table G?16 for the time periodsspecified therein. The Secretary also had the burden of showing that there werefeasible administrative or engineering controls available to reduce the soundlevels in the plant, and Respondent failed to utilize them. There is noevidence that administrative controls were available to Respondent. Withrespect to engineering controls, it was stipulated that Mr. Pitchforth wasunable to offer ay suggestions. And the Secretary?s acoustics expert, Mr.Kugler, only testified in general terms that noise levels could be reduced byenclosing machines by physical separation of various areas or by application ofabsorptive materials to building surfaces. He was unable to state that specificthings would reduce noise levels effectively in Respondent?s plant. When hetestified he did not know whether Respondent had in fact tried any engineeringtechniques in its Torrance plant.[20]The record, thus, does not contain probative evidence that feasibleadministrative or engineering controls were available to reduce effectively thesound levels in Respondent?s Torrance plant, and that Respondent had failed toutilize them.[21]Basedon the foregoing, and the whole record, the following are entered asCONCLUSIONSOF LAW1.Respondent is now, and at all times mentioned herein, an ?employer? within themeaning of Section 3(5) of the Occupational Safety and Health Act of 1970, andthat the Commission has jurisdiction of the parties and the subject matter.2.The Secretary did not establish that Respondent had violated the standardappearing at 29 CFR 1910.95(b)(1) or Section 5(a)(2) of the Act.ORDERBasedon the foregoing, and the whole record, it is ORDERED that Citation No. 1issued against Respondent herein on September 12, 1972, be VACATED.?Harold A.KennedyJudge, OSAHRCDated: September 18, 1973\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 1551 REYNOLDS METALS COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: April 27, 1973?DIRECTION FORREVIEW AND ORDER?BEFORE VAN NAMEE and BURCH,CommissionersVAN NAMEE, Commissioner:OnMarch 28, 1973 Judge Harold A. Kennedy?s decision in this case was issued. Byhis decision Judge Kennedy vacated the Complainant?s citation for the reasonthat Respondent?s notice of contest had not been forwarded to the Commissionwithin seven days as required by Rule 32 of the Commission?s Rules ofProcedure.Inaccordance with the authority granted by section 12(j) of the OccupationalSafety and Health Act of 1970 (29 U.S.C.A. 651, et seq., hereinafter ?the Act?)review of the Judge?s order is hereby directed. We have reviewed the record andthe Judge?s decision. For the reasons given hereinafter we reverse.Thefacts are as follows:OnSeptember 13, 1972 Complainant issued Respondent a citation for allegedviolations of section 5(a)(2) of the Act. In response thereto Respondent fileda letter which was received by Complainant on October 2. On October 5,Complainant?s compliance officer called Respondent and inquired as to theintended status of the letter. He was informed that it was a notice of contest.Thereafter, on October 10 (eight days after receipt of the letter) the AreaDirector forwarded the notice of contest to the Commission.Respondentin reliance on Secretary of Labor v. Lennox Industries, Inc., OSHRCDocket No. 1106 (July 7, 1972) and Secretary of Labor v. Brent TowingCompany, OSHRC Docket No. 1003 (December 29, 1972) moved for vacation. Asis required by Secretary of Labor v. J. Dale Wilson Builder, OSHRCDocket No. 1625 (February 20, 1973) and Secretary of Labor v. ADM GrainCompany, OSHRC Docket No. 1767 (February 20, 1973) Judge Kennedy affordedComplainant an opportunity to explain the delay.Nevertheless,Complainant is not in violation of the letter of our rules. Rule 4 states inpertinent part as follows:?The last day of theperiod shall be included unless it is a Saturday, Sunday or Federal holiday inwhich event the period runs until the end of the next day which is not aSaturday, Sunday, or Federal holiday.??Theperiod prescribed by Rule 32 in this case expired on Monday, October 9, 1972.However, that Monday was a Federal holiday (Columbus Day). Therefore, underRule 4 Complainant could wait until October 10 to file the notice of contest.Accordingly, the filing was timely and vacation is not warranted.Itis therefore ORDERED that (1) the Judge?s decision be set aside, and (2) thecase be reinstated and remanded for further proceedings consistent with thisdecision.?WILLIAM S. McLAUGHLINEXECUTIVE SECRETARYDATED: April 27, 1973\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 1551 REYNOLDS METALS COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 27, 1973\u00a0APPEARANCES:\u00a0For the Secretary: TheresaKalinski, Attorney of Los Angeles, California\u00a0For Respondent: Austin B. Graff,Esq. William H. Bass III, Esq. of Richmond, Virginia?ORDER GRANTINGMOTION TO DISMISS\u00a0OnMarch 6, 1973, Respondent filed a motion with the Commission seeking dismissalof this proceeding before the Occupational Safety and Health Review Commissionon the ground that the Secretary had not timely transmitted Respondent?s Noticeof Contest to the Commission.[22]Section 10(c) of the Occupational Safety and Health Act of 1970 provides that?the Secretary shall immediately advise the Commission? of a notification thatan employer intends to contest a citation or a notification of any proposedpenalty. Commission Rule 2200.32, in effect since September 28, 1972 (37 Fed.Reg. 20237), provides:The Secretary shall,within 7 days of receipt of a notice of contest, transmit the original to theCommission, together with copies of all relevant documents.?Therecord shows that a letter dated September 27, 1972 (J 3), originating fromRespondent?s inspected plant in Torrance, California and which was treated as anotice of contest, was received on October 2, 1972, at the Long Beach,California Office of the Secretary and by the Executive Secretary of theCommission on October 12, 1972. It is not disputed that the Secretary did notforward the notice of contest until October 10, 1972?eight (8) days after itsreceipt.Recentdecisions of the Commission indicate that the Secretary is to be given anopportunity to explain his failure to forward a notice of contest within thetime prescribed in Commission Rule 2200.32; also, that Respondent may show thatit has been prejudiced by the late transmittal of the notice of contest. See ADMGrain Company, DOCKET No. 1767 dated February 20, 1973 and J. DaleWilson, Docket 1625, dated February 20, 1972.??????????? The Secretary was given anopportunity herein to explain the delay in forwarding the notice of contest,and Respondent has responded thereto.OnMarch 13, 1973, the Secretary filed an affidavit of Compliance Officer GilbertGarcia. The affidavit reads in part:On October 2, 1972,the Occupational Safety and Health Administration received in the mail at itsoffice in Long Beach, California, a letter from Respondent Reynolds MetalsCompany (such letter was forwarded to the Commission on October 10, 1972).?OnOctober 5, 1972, I called the Respondent at its office at 500 CrenshawBoulevard, Torrance, California, to determine whether the letter received onOctober 2, 1972 constituted a Notice of Contest, insomuch it was not at allcertain from such letter whether respondent intended it to be a Notice ofContest. I was told by Mr. Johnson, an employee of Respondent, that managerialpersonnel were absent from the city and that he was unable to respond to myquestion but that he would call the corporate headquarters in Virginia toobtain a response to my question.OnOctober 5, 1972, 2:45 p.m., Mr. Johnson called me and stated that the letterwas a Notice of Contest. Thus, it was not until October 5, 1972 that theOccupational Safety and Health Administration was definitely apprised that theletter from the Respondent received on October 2, 1972 constituted a Notice ofContest.??????????? On October 10, 1972, theOccupational Safety and Health Administration forwarded to the OccupationalSafety and Health Review Commission, the letter which it received fromRespondent on October 2, 1972.Respondentfiled a memorandum of opposition to the affidavit on March 22, 1973. Accordingto the memorandum, the affidavit is legally insufficient even when considered?in its most favorable light?. The undersigned agrees.TheSecretary?s affidavit indicates there was a three-day delay in making inquiryof Respondent as to whether the letter should be treated as a notice ofcontest. In any event, the Secretary?s representative knew by October 5, 1972that it was to be so treated and had ample time to transmit it to the Review Commissionwithin the prescribed seven-day period. Yet he did not do so until October 10,1972.Itmay not have been readily apparent to the Secretary?s representative thatRespondent?s September 27, 1972 letter intended to contest any part of thecitation issued. But as Respondent points out, the Commission has vacatedcitations where there was a doubt as to whether the document submitted by an employerwas a notice of contest.[23]And while the Commission recent holdings indicate that the Secretary will bepermitted to explain a delay in transmitting a notice of contest, the reasonoffered here remains an insufficient one. Said the Commission in J. DaleWilson Builder, DOCKET No. 1625 dated February 20, 1972:In the past theCommission has applied the extreme sanction of vacation of a citation where anArea Director has not forwarded a notice of contest because in his view theemployer?s writing was not a notice of contest. (Secretary of Labor v.Pleasant Valley Packing Co., Inc., OSHRC DOCKET No. 464; Secretary ofLabor v. Brent Towing Co., Inc., OSHRC DOCKET No. 1003, Pet. for Jud. Rev.,Docket No. 72?3511, filed November 21, 1972, 5th Cir.; Secretary of Labor v.Lennox Industries, Inc., OSHRC DOCKET No. 1106). We used the sanction inthese cases because the function of determining the legal sufficiency of anotice of contest is an adjudicatory function, and the action of the AreaDirector operated to deprive an employer of his statutory right to a hearing asprovided for by section 10(c) and to usurp the responsibility of thisCommission to provide the hearing.)\u00a0Findingthe record in that case to be ?silent regarding the reasons for delay intransmittal of the notice of contest.?, the case was remanded so the Secretarycould explain the delay and Respondent could show how it had been prejudiced.Herethe Secretary has been given an opportunity to explain the delay for latetransmittal of Respondent?s notice of contest, and he has failed to justify it.Accordingly, Item No. 2 of Citation No. 1 dated September 13, 1972 is VACATED[24].?Harold A.KennedyJudge, OSAHRCDated: March 23,1973[1] This standard states:When employees are subjected to sound exceeding thoselisted in Table G?16, feasible administrative or engineering controls shall beutilized. If such controls fail to reduce sound levels within the levels ofTable G?16, personal protective equipment shall be provided and used to reducesound levels within the levels of the table.Table G?16?Permissible Noise Exposure Duration per day, hours Sound level dBA slow response 8 90 6 92 4 95 3 97 2 100 1? 102 1 105 ? 110 ? or less 115 \u00a0[2]Complainant does not contend that administrative controls are feasible, andthere is no evidence of record demonstrating the feasibility of such controls.\u00a0[3]My dissenting colleague would presume the existence of a violation on thisevidence. He would do so because among other things he reads my opinion in ReynoldsMetal Co., No. 4385, 3 OSHC 1749, OSHD para. 20,214 (1975) as presenting anaccess to proof problem for the Secretary. My colleague fails to note that thequestion presented in that case concerned trade secrets. The question is notpresented in this case.[4]A reverberant field is one in which noise levels result from combinations ofnoise producing machinery and which has the effect of producing noise levels ofessentially the same intensity throughout the area.\u00a0[5]5 U.S.C. section 556(d). See also 2 Davis, Administrative Law Treatise, ?14.14, citing, Sen. Doc. No. 248, 79th Cong. 2d Sess. 208, 270 (1946).\u00a0[6]As used here, the root term ?presumption? is limited to the description givenby Professor McCormick,. . . theestablishment of fact B [there are feasible engineering controls available toreduce reverberant noise] is sufficient to satisfy a party?s burden ofproducing evidence with respect to fact A [the general controls are applicableto respondent?s noise problem.]McCormick, Law of Evidence, 2ded. ? 342, 343 (1972).[7]McCormick, ? 343.\u00a0[8]?. . . Some presumptions are created to correct an imbalance resulting from oneparty?s superior access to proof.? McCormick ? 343, pp. 806?7.\u00a0[9]The ?access to proof? argument for allowing the presumption in cases of thissort is particularly compelling because in another case the Chairman statedthat he would not, in the absence of a showing of good cause, permitcomplainant to avail himself of the best available noise expert for discoveryinspections for excess noise if that expert is not a federal employee, andCommissioner Moran would restrict discovery inspections generally. See ReynoldsMetals Co., No. 4385; BNA 3 OSHC 1749; CCH OSHD para. 20,214 (1975).\u00a0[10]Report of the Attorney General?s Committee on Administrative Procedure, p. 70(1941), as quoted by Davis, ? 14.08, p. 284.\u00a0[11]Section 2(b) states this purpose as: ?. . . to assure so far as possible everyworking man and woman in the Nation safe and healthful working conditions . ..? See also, Clarkson Construction Co. v. O.S.H.R.C. & Secretary ofLabor, No. 75?1070 (10th Cir., January 21, 1976) slip op. 12.\u00a0[12]Brennan v. O.S.H.R.C. and John J. Gordon Co., 492 F.2d 1027, 1032 (2dCir. 1974) and authorities cited therein.\u00a0[13]Rule 301 of the Federal Rules of Evidence.1 The citationcontained three ?Items? or charges, but Respondent contested only one.\u00a0[15]Section 5(a)(2) provides that each employer subject to the Act ?shall complywith occupational safety and health standards promulgated under this Act.?[16]A prehearing conference was held in the case on February 15, 1973, primarily toresolve the issues raised in a Motion to Permit Discovery filed by theSecretary. The case was thereafter dismissed by the undersigned by order datedMarch 23, 1973 on the ground that the Secretary had failed to timely transmitthe Respondent?s notice of contest to the Commission. The Commission by orderdated April 27, 1973 reversed and remanded.[17]The employees who testified indicated that they sometimes take more than theallotted time for lunch and coffee. Also, they may have occasion to leave theirwork station to go to the lavatory, to pick up supplies or to perform someother work function (Tr. 101, 124, 162, 171?6). The breaks are staggered so themachines can continue to operate (Tr. 146?7).[18]See also Tr. 272?4. Mr. Kugler said it would be necessary to make an evaluationof the plant before he could state what specific things could be done to reducethe noise level (Tr. 274).\u00a0[19]With respect to Respondent?s other argument, the record indicates thatRespondent?s employees would have been working for sufficient time periods inthe general areas where the noise recordings were taken. This aspect of theSecretary?s sampling technique was, therefore, presumably valid?if it had beenshown that the noise levels had continued (not declined) for the time periodsprescribed in the standard.[20]Mr. Kugler testified before Mr. Korman was called as a defense witness.\u00a0[21]The parties eliminated any issue involving the use of personal protectiveequipment by stipulation (Tr. 12).[22]This proceeding grew out of an inspection of Respondent?s plant in Torrance,California on August 28, 1972. A citation issued on September 13, 1972containing three charges or ?Items?. Such items allege violation of occupationalsafety and health standards appearing at 29 CFR 1910, 101(b), 1910.95(b)(1) and1910.252(a)(2)(iv)(c), respectively. A $40 penalty was proposed for Item No. 1,but no penalty was proposed for either item No. 1 or Item No. 2. Respondentonly contested Item No. 2, involving the alleged failure to properly controlnoise levels ?by feasible engineering and\/or administrative controls?, which isthe only charge before the undersigned.[23]Respondent cites Lennox Industries, Inc., DOCKET No. 1106, dated July 7,1972 and Brent Towing Company, DOCKET No. 1003, dated December 29, 1972.Respondent also points out that the Secretary?s own directives require him totreat a letter in a doubtful situation as a notice of contest and transmit itto the Commission, citing Compliance Operations Manual, page XXII?(B)(2), andOSHA Program Directive #200?15, 4c.(1) and (2), para. 8639, CCH EmploymentSafety and Health Guide.[24]As indicated, only Item No. 2 is before the Review Commission, and no penaltywas proposed as to it. [Footnote placed by editor; no microfiche available oforiginal decision.]”