“Docket No. 80-5966 SECRETARY OF LABOR, Complainant, v. STEWART-WARNER CORPORATION, Respondent.OSHRC Docket No. 80-5966ORDERThe Parties’ stipulation and settlement agreement isapproved. This order is issued pursuant to a delegation of authority to the ExecutiveSecretary. 41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).FOR THE COMMISSION Ray H. Darling, Jr.Executive SecretaryDated: November 18, 1987SECRETARY OF LABOR, Complainant, v. STEWART-WARNER CORPORATION, a Corporation, Respondent.OSHRC Docket No. 80-5966DECISION AND ORDERAppearance:FRANCIS X. LILLY, Esq., Solicitor of Labor,JOHN SECARAS, Regional Solicitor, CHRISTOPHER D. WOLFE, Esq., andJAMES L. BOWERS, Esq., for Raymond J. Donovan, Secretaryof Labor, U.S. Department of Labor, Complainant.Columbus R. Gangoni, Jr., Esq., and Gerald C. Peterson, Esq.,David B. Lowe, Esq., Winston & Strawn, Chicago, Illinois, Attorney for Stewart-Warner Corporation, Respondent.Mark B. Bigelow, Esq., Chicago, Illinois, Attorney forUnited Workers Association, U.E.: Local 1154, Authorized Employee Representative.BOBRICK, JudgeThis proceeding was commenced pursuant to Section10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq.,(hereinafter referred to as the \”Act\”), wherein Respondent, Stewart-WarnerCorporation, contested a Citation issued by Complainant, Raymond J. Donovan, Secretary ofLabor, U.S. Department of Labor, hereinafter the \”Secretary.\”[[1\/]] The Citation charged Respondent with a repeat violation of the 1980 OccupationalSafety and Health Regulations 29 C.F.R. 1910.95(b)(1), entitled Occupational NoiseExposure [[2\/]] (hereinafter the \”Noise Standard\”), in Departments 2, 6, and 75of its Chicago plant.FACTS OF CASEOn July 27, 1980, in response to a complaint made byan employee of Respondent alleging exposure to excessive noise levels, Complainant,through one of its compliance officers from the Occupational Safety and HealthAdministration (hereinafter \”compliance officer\”), began an inspection ofRespondent’s facility in Chicago. Such safety and health inspection ended August 7, 1980.Respondent, at the inspected work site, manufacturedor fabricated, among other things, a broad variety of alemite (lubrication) systems,instruments, and related fittings such as automobile hood latch devices, automobile doorhandles, large oil mist lubricating systems, airless and conventional spray equipment,fluid dispensing pumps, electrical pumps, miscellaneous lubrication fittings, and variousspeed pressure and tachometer, meters and gauges. (Tr. 2604-2607, Ex. C-25).The products manufactured by Respondent are precisionmade and involve exacting tolerances. The manufacturing work requires a high degree oftechnology, a wide variety of engineering expertise and highly skilled machiningoperations. The inspection concluded by the Secretary in July 1980, was not the firstinspection of Respondent’s workplace wherein excessive noise levels were found to exist.In 1975 and again in 1977, safety and health inspections had revealed excessive noiselevels to which employees were exposed. The 1977 inspection resulted in the issuance of aSerious Citation which alleged violations of 29 C.F.R. ? 1910.95(b)(1), in Departments 1,2, 6 and 75 of Respondent plant (Ex. C-20); the Citation was not contested and became afinal order of the Commission. From time to time requests for modification of abatementwere filed; on March 20, 1979 a hearing was held as to abatement date changes, at whichtime a final abatement date of August 25, 1979, was agreed to by the parties (Ex. C-19,20, 21).As a result of the current 1980 inspection, a RepeatCitation was issued to Respondent. This Repeat Citation alleged the existence of excessivenoise levels, in violation of the Noise Standard, in Departments 2, 6. and 75. ThisCitation was contested and is the subject matter of the instant case.Looking to the individually cited areas we first findDepartment 2. Department 2 is located on the first floor of Respondent’s facility. It is alarge open area having exposed concrete walls, floor and ceiling; approximately 71 punchpresses are located in this space. Of the 71 punch presses, approximately 41 are referredto as \”secondary presses\” and 21 are \”automatic presses.\” An automaticpress is one wherein the operator loads raw materials into a feeding mechanism and partsare then automatically produced with little employee interaction. The operator merelyloads the press with the raw materials and monitors the parts being made to insure thatthey are being correctly made and properly expelled from the machine. A secondary press isone in which the operator loads an individual piece of raw material or partially producedpart into the press, activates the press, and then monitors that the press properlypressed and expelled the part from its dies (Tr. 2616, 2619). Approximately 115 employeesare employed in Department 2 (Ex. C-24). The presses with their component high airpressure systems are the main source of the noise levels in this department.Department 6 is located on the fourth floor ofRespondent’s facility and occupies approximately 1,200 square feet of space having exposedconcrete walls, floor, and ceiling. Within Department 6 are located 35 screw machines ofwhich there are three basic types. A screw machine is a machine in which round metal bars(stock) are fed through rotating dies which then fabricate small machined components.These screw machines are referred to as multi-spindled machines wherein the fabrication ofparts is done simultaneously on several of the metal bar stock inserted into the feedportion of the machine. The operation of the screw machines represents the basic source ofthe noise levels in Department 6 (Ex. C-24). Approximately 42 employees are employed inDepartment 6 (Ex. C-24).Department 75 occupies approximately 12,000 squarefeet of floor space on the third floor of the facility, such area also having exposedconcrete walls, floor, and ceiling. Located within this department are 74 multispindledscrew machines, benches and grinders and other equipment. The screw machines, known asDavenports, fabricate small machined components on multi-spindled dies from a number ofbars of metal being fed into one end of the machine. Approximately 67 employees areassigned to Department 75 (Tr. 327, Exs. C-13, 24). The screw machines appear to be thebasic source of the noise levels in this work area.During relevant times, the Respondent hadadministered audiometric examinations to its employees. These tests were analyzed by aconsultant, engaged by Respondent, with written codes being assigned to the testedemployee to indicate whether the individual should be medically referred to an earspecialist. The audiometric exams together with the evaluations were routinely stored inthe company safe while never being provided to any of Respondent’s employees. No actionsor referrals were ever made to doctors based upon the results of the examinations eventhough the analysis done of these exams recommended that a significant number of employeesbe seen by a medical ear doctor. (Tr. 76, 77, 78, 96, 97, 2090, 2209, 2211, 2229, 4309,4310, 4311).Before discussing the legal and factual issues, thearguments concerning the application or enforcement of the Noise Standard, and theeconomic, and technological feasibility of engineering noise controls proposed for thosecited areas where employees were allegedly exposed to excessive noise levels, it will benecessary to first review several procedural matters raised by Respondent. It will also benecessary to dispose of certain factual challenges to the sampling and measuring made bythe Secretary’s compliance officer to record the noise levels in the workplace, and toreview certain challenged procedures followed by the compliance officer in taking hernoise level readings.FINDINGS OF FACT AND CONCLUSIONS OF LAW I. CHALLENGE TO COMMISSION JURISDICTIONRespondent argues that the Commission lacksjurisdiction over this matter in that it perceives the Secretary’s action to be acontinuation of the former Citation proceeding with its successive Petitions forModification of Abatement proceedings; and that the Secretary’s actions herein should notbe the subject matter of a new citation (Ex. C-20, 21). Respondent maintains that asettlement agreement had been reached between the parties and, under such settlementagreement, Respondent had determined that further controls were not feasible in accordancewith said agreement. Respondent thus reaches the conclusion that this action, in effect,should be an enforcement action of the terms of the settlement agreement and not a newlyinstituted citation proceeding. Respondent extrapolates on this position arguing that thesettlement agreement had not become a final order of the Commission and that the agreementdid not specifically grant the Commission jurisdiction to enforce its terms. To bolsterits argument, Respondent points out that the past Citation, together with its Petition forModification of Abatement was made part of these proceedings by their introduction intoevidence. Accordingly, goes Respondent’s agreement, the current action is an allegedenforcement action of the terms of the settlement agreement, the Commission having nojurisdiction over any matter connected with the alleged 1977 violations since thesettlement agreement disposed of same.While Respondent’s argument had never before beenraised in this proceeding, except in its post-trial brief, it could thus be considereduntimely. We nonetheless, review same, finding Respondent’s position to be without anyfactual or legal merit.The scenario portrayed by Respondent in this argumentdoes not fit the facts of this case and in any event hardly makes any sense at all. In theinstant matter, we find that the Complainant, on the basis of an inspection in July andAugust of 1980, issued a Repeat Citation for alleged excessive noise levels to whichRespondent’s employees were exposed in Departments 2, 6, and 75. While Respondent urgesthat the proof of its argument is demonstrated by the fact that the 1977 Citation, and thePetition for Modification of Abatement proceedings were brought into this matter toenforce their terms, we find this not to be the case at all. This matter deals with theSecretary presently litigating the propriety of the Citations issued to Respondent onSeptember 12, 1980 (Ex. C-74). The prior Citations, referred to by Respondent as thecentral core of its argument, were introduced into these proceedings for the sole purposeof showing knowledge on behalf of the Respondent, feasibility of abatement, and properclassification of the instant violation as repeat. The Repeat Citation, involved in thiscase, by its terms, lists violations occurring on July 24, 1980, and the contest filed byRespondent vested this Commission with jurisdiction.II. THE CITATION WAS NOT ISSUED WITHIN 180 DAYS OFTHE ALLEGED VIOLATION.Respondent submits that under Section 9(c) of theAct, and what it referred to as its implementing Regulation, 29 C.F.R. ? 1903.14, acitation to be valid and enforceable, must be issued with reasonable promptness, and inany event not more than 180 days after the date of the alleged violation. Additionally,Respondent tells us that for a citation to be valid it must be in writing, describing thenature of the alleged violation, and must state the following:\”that the issuance of a citation does notconstitute a finding that a violation of the Act has occurred unless there is a failure tocontest as provided for in the Act or, if contested, unless the citation is affirmed bythe Review Commission.\” 29 C.F.R. ? 1903.14(e).Respondent argues that since the above cited clausewas not in the instant Citation, and that a citation containing such a clause was neverissued within 180 days of the alleged violation, the Citation is improper and must bedismissed. In support of this argument, Respondent cites several cases holding thatregulations duly adopted by an agency have force and effect in law and that an agency isbound by its own regulations. Cf., Union of Concerned Scientists v. AEC, 499 F.2d1069, 1082 (D.C. Cir. 1974); Service v. Dulles, 364 U.S. 363, 388 (1957); Cityof Santa Clara v. Andrus, 572 F.2d 660, 669 n. 5 (9th Cir.), cert. denied,99 S. Ct. 176 (1978); Husky Oil Co. v. Department of Energy, 582 F.2d 644 (TECA.1978).We believe Respondent’s argument fails for tworeasons. First, the grounds alleged by Respondent for avoiding the Citation are notincluded in the Act. Second, after reviewing the face of the Citation we find that theSecretary, in issuing it, had done so with substantial compliance with the statute andregulations, and as such, no prejudice to the company resulted by such an omission in theCitation as charged by Respondent. Chicago Bridge and Iron v. Occupational Safety andHealth Review Commission, 535 F.2d 371 (7th Cir. 1976).III. THE \”CITATION\” WAS IMPROPERRespondent argues that the issuance of a Citationclassified as \”Repeat\” deprived it of its due process rights because theCitation was mischaracterized as repeat, and that by reason of this, it was unable tointroduce evidence that the original Citation (1977) was invalid.Respondent further argues that in order to establisha \”repeat\” violation, the Secretary was required to show that abatement of theprior alleged violation had been accomplished, citing Braswell Motor Freight Lines,Inc., 5 BNA OSHC 1469, 1977. Respondent argues that since there was no evidence thatit had \”abated\” the alleged violation in Departments 2, 5 and 75, the Citationmust be dismissed.Respondent’s argument misses the mark. The instantcase deals with the issuance of a Repeat Citation. A Repeat Citation has been denied bothby the Review Commission and various U.S. Courts of Appeals as a violation occurring whenthere was a Commission final order against the same employer for a substantially similarviolation. Potlatch Corp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD 23,294; GeorgeHyman Construction Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978); Todd Shipyards Corp.v. Secretary of Labor and OSHRC, 566 F.2d 1327 (9 Cir. 1981); Kent NowlinConstruction Company, Inc. v. OSHRC, 648 F.2nd 1278 (10 Cir. 1981); BungeCorporation v. Secretary of Labor and OSHRC, 638 F.2nd 831 (5th Cir. 1981). There isno case law or statutary provision predicating the existence of a repeat violation on anemployers abatement efforts.In the instant case there can be little doubt thatthe Secretary has met the requirements for issuance of a Repeat Citation. In 1977Respondent was issued, at its same workplace, a Citation for the same violation as thatfound in the present case (Ex. C-20). That 1977 Citation became a final order of theCommission when Respondent chose not to contest. Accordingly, we find the instant RepeatCitation a valid and fully enforceable citation. The particular facts surrounding theviolation in 1977 was found not relevant to the instant violation.IV. LEGALITY OF THE MEASUREMENT OF NOISE LEVELSAND EXPOSURE TO ALLEGED EXCESSIVE NOISE LEVELSThe Secretary maintains that it’s compliance officerhad correctly measured sound levels existing at Respondent’s plant and had also correctlymeasured levels of exposure of Respondent’s employees to such noise levels. The Secretaryfurther maintains that these measurements show that employees in Departments 2, 6, and 75were exposed to noise levels in excess of the permissible levels set forth in the NoiseStandard. The noise levels were measured by the compliance officer through use of soundlevel meters, which measured the noise levels at a particular instant in time, and throughwhat is known as \”dosimeters,\” a device used to measure accumulated exposure tosound levels over a period of time.Respondent on the other hand argues that there is artambiguity in the Noise Standard and that this, coupled with Complainants method ofdetermining existing sound levels, resulted in error requiring the vacation of theCitation. Respondent also argues that the noise readings were unreliable and erroneouslymeasured. This last argument will be discussed separately.A. Measuring Mixed Sound LevelsRespondent argues that Table G-16 of the NoiseStandard (See n. 2) fails to give adequate notice that mixed sound levels can be used todetermine employee exposure. Respondent maintains that the method of determining existingsound levels through use of a dosimeter, which measures accumulated sounds from differentsource of varying levels over a given time period, under the language of the NoiseStandard, is constitutionally infirm since the Noise Standard does not require an employerto account for accumulated mixed levels of noise exposure. Next, Respondent argues theinclusion of impact noise levels existing at the plant site was unconstitutionallyincluded in Complainant’s findings of employee noise exposure since the Noise Standard, asinterpreted by Respondent, does not provide for the inclusion of impact noise in measuringnoise exposure.With respect to Respondent’s first argument, that thenoise regulation is not clear and concise in its language, not giving fair warning of theprohibitive conduct addressed by the standard, i.e., dealing with \”accumulativenoise, levels,\” we find this argument without substance or support. The claim ofambiguity perceived by Respondent rests upon what it characterizes as a failure within theStandard to give adequate notice that \”accumulative mixed sound levels\” could beused to determine employee exposure. In support of this argument Respondent points tofootnote 1 [[3\/]] of the Standard which in applicable part reads:\”When the daily noise exposure is composed of two or more periods of noise exposureof different levels, their combined effect should be considered, rather than theindividual effect of each.\”The constitutionally offending enforcement of thisStandard, as perceived by Respondent, develops from the inclusion of the term\”should\” in footnote 1. which Respondent argues, renders the entire Standardadvisory or unenforceable. Respondent cites Pittsburgh-Des Moines Steel Coal, CCH1977-78 OSHD 21,807 (R.C. 1977), aff’d sub nom; Marshall v. Pittsburgh-DesMoines Steel Coal, 584 F.2d 638 (3rd Cir. 1978).We find Respondent’s interpretation of the standardill founded since the standard is unambiguous on its face in establishing that employeeexposure to certain sound levels, for certain prescribed period of time, is actionablerequiring abatement efforts by the employer. The standard clearly deals with total noiseto which employees are exposed, and this is quite evident in the Standard which speaks of\”sound (levels) exceeding those listed in Table G-16.\”The absence of any qualifiers to the terms\”sound levels\” and \”noise exposure\” clearly and practically impliesthat noise levels means total noise levels to which employees are exposed regardless ofintensity, source or modulation. This is sensible since it would be impossible to draft aregulation which would address each one of a myriad of different conceivable sources andlevels of noise. Secondly, having a standard which deals with noise levels predicated onintensity, rather than frequency, modulation or source, is a more recognizable standard todeal with in determining whether remedial action should be taken or not since it dealswith one factor, that being total noise level exposure.Respondent’s reliance on the existence of some sortof constitutional quagmire rooted in footnote 1 to the Standard is misplaced since thefootnote is advisory in nature; furthermore it is overshadowed by the objectively clearmandate found in the basic text of the standard, revealing to any reasonable and practicalperson, the potential threat to ear injury and the need for employee protection. AmericanCan Company, 10 BNA OSHC 1305, 1982 CCH OSHD 25,899; Ryder Truck Lines, Inc. v.Peter J. Brennan, 497 F.2d 230 (5th Cir. 1974). We further see that the application ofthe Standard to the facts of the case, i.e., high noise levels, employee exposure, noiseinduced hearing loss and technical methods of abatement, makes this remedial regulation amost simple and unambiguous one, finding easy application and interpretation to thepotential hazards involved. Diebold, Inc. v. OSHRC, 585 F.2d 1327 (6th Cir. 1978); VanceConstruction v. Donovan, 723 F.2d 410 (5th Cir. 1984). While the cited Circuit Courtdecisions are a sufficient basis alone to reject Respondent’s argument, we also find thatthe Commission has consistently and repeatedly held that the Noise Standard is notunforceably vague but is a fully enforceable standard. Sherwin Williams, 11 BNAOSHC 2105, CCH 1984 OSHD 26,986; Sun Ship, Inc., 11 BNA OSHC 1028, 1979 CCH OSHD26,353; American Can, supra.B. Inclusion of Impact NoiseRespondent argues that fair warning is notincorporated in the Standard alerting employers that impact and impulse noise will beincluded in total noise readings. Respondent points to the last sentence of footnote 1which provides \”Exposure to impulse or impact noise should not exceed 140 dB peaksound pressure level,\” to establish the proposition that inclusion of impact andimpulse noise in a sound level meter reading is unconstitutional. Respondent argues that,since the footnote indicates that impact noise should not exceed 140 dB, it thus shouldnot be included in a scale measurement of existing noise in the workplace.I fail to find any logic to this argument for severalreasons. First. remedial legislation and regulation, such as the Noise Standard, should beread in the manner applicable to its intended purpose and not antagonistic towards theconduct to which it is addressed. Secondly, the proposition forwarded by Respondent doesnot make sense since to a large extent noise sources are impact and impulse in nature andrepresent the bulk of noise produced by machinery, as is the case at Respondent’s own worksite (Ex. C-23, Fig. 2, 3, and 13). If one were to follow Respondent’s argument, most allexcessive noise levels would not fall within the occupational noise exposure standard.Lastly, Respondent’s reading of footnote 1 of the Noise Standard, does not square with theplain reading of the provision itself and this presents sufficient basis alone to rejectits argument. Accordingly, we find no affirmity in the Standard precluding itsenforcement.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0V. ACCURACY AND RELIABILITY OF SOUND LEVEL MEASUREMENTS MADE BY THE SECRETARYAs a major part of the Secretary’s prima faciecase, it is necessary that he demonstrate that employees were exposed to sound levels inexcess of those specified in Table G-16 [[4\/]] of the Noise Standard. In order to meetthis burden, sound level readings of the work area and dosimeter readings of employeeexposure were taken and recorded by the Secretary’s Industrial Hygienist\/complianceofficer. The noise measurements were then entered into this record for the purpose ofestablishing noise level exposure of Respondent’s employees in the cited areas.Respondent raises certain procedural and evidentiarychallenges to the accuracy, reliability and application of those sound leveldeterminations made by the Secretary. Also Respondent challenges the Noise Standard’sapplication, vis-a-vis, the Secretary’s sound level measurements and methods bywhere they were taken.First, Respondent, in defense to the Citation, arguesthat the Secretary’s method of measuring noise level exposure, used to reach hisconclusions that there existed excessive noise exposure of employees, deprived Respondentof due process since there exists an absence of any clear language in the Noise Standardthat give an employer fair warning of how the sound levels are to be determined ormeasured. Respondent more specifically argues that the Noise Standard’s language withinFootnote 1 of the Standard, to wit,\”when the daily noise exposure is composed oftwo or more periods of noise exposure of different levels, their combined effect shouldbe considered rather than the individual effect of each,\” makes the collection of different noise levelsoptional.Respondent points to the use of the word\”should\” found in Footnote 1, arguing that this makes the provision advisory innature rather than mandatory, and accordingly is unenforceable by its own terms.Respondent relies upon the case of Pittsburgh-Des Moines Steel Co., 5 BNA OSHC1420, 1977-1978 CCH OSHD ? 21,804 (No. 13708, 1977), aff’d sub nom, Marshallv. Pittsburgh-Des Moines Steel Coal, 584 F.2d 638 (3rd Cir. 1978). Enlarging on thisargument, Respondent concludes that an employer should not be compelled to accumulatemixed sound levels to determine employee exposure. Respondent extrapolates from thisconclusion the proposition that since dosimeter readings measure varying degrees of noiselevels, as well as impact and continuous noise levels, the inclusion and acceptance ofdosimeter readings as evidence of employee exposures deprives it of due process.We fail to follow Respondent’s argument since we findno ambiguity in the standard’s requirements or application, particularly with regard tonoise measurements, and accordingly find Respondent’s arguments without merit.Looking to the Noise Standard, maximum noise exposurefor employees is clearly and unambiguously set forth in Table G-16. The Noise Standardbecomes actionable upon the existence of excessive noise level exposure by employees.Whatever the provisions of Footnote 1, it is clear it has no effect on the unambiguousapplication of the noise exposure values set forth in Table G-16 showing permissible noiseexposures. Nothing in Footnote 1 alters the mandate of the Standard that noise levels inexcess of the permissible noise exposure values be eliminated through either feasibleengineering or administrative controls. We find the reading of Noise Standard clear andconcise, having easy understanding and application. Respondent misreads the purpose ofFootnote 1, with its component calculations, in relationship to the mandated permissiblenoise level exposures. As mentioned earlier, Footnote 1 is an advisory note dealing with amethod of noise calculation and not with basic noise level exposure limits; additionallythe noise formula goes with the text of that note.We find no due process problem, as proposed byRespondent, since Footnote 1 presents nothing more than directions on how to use alonghand method of computing noise level exposures when different levels of sound arepresent in the workplace. Footnote 1 is an acoustical engineering formula for calculatingvarying noise measurements. Apparently at the time the Noise Standard was written,Footnote 1 was needed in that dosimeters had not been invented (Tr. 744, 745). With theadvent and availability of accurate and reliable dosimeters, Footnote 1 is now all butignored or forgotten by acoustical engineers or industrial hygienists who might find itnecessary to determine employee exposure to sound levels since the dosimeter does thecalculations automatically and accurately (Tr. 1153-1157). Furthermore, since Footnote 1has no application in determining or calculating noise exposure as a matter of law, and inthis case as a matter of fact, we fail to find the perceived error as alleged.Respondent next argues that the Standard fails toprovide fair warning to employers that impact or impulse noise should be included in noisereadings. Again, Respondent refers to language of Footnote 1 which reads, \”exposureto impulse or impact noise should not exceed 140 dB peak sound pressure levels.\”Alluding this provision to the compliance officer’s operating handbook (OSHA IndustrialHygiene Manual) dealing with the measuring of noise, Respondent maintains that thedosimeter readings should not be followed or used as a means of determining employeeexposure since the dosimeter measured both impact and continuous noise levels.We again find Respondent’s argument without merit.The referenced provision of Footnote 1 gives the end limits of noise exposure at 140decibel; that is, no employee is allowed such an exposure for any moment or time period.This coupled with the well established principle that a compliance officer’s manual haslittle relevance since it in no way affords a party procedural or substantive rights,leaves Respondent’s argument without any credence. Moreover, the failure to follow suchguidelines, if any existed, is not grounds for vacating a citation. General ElectricCo., 7 BNA OSHC 2183, 1980 CCH OSHD ? 24,502; PAF Equipment Co., 7 BNA OSHC1209, 1979 CCH OSHD ? 23,421; Limach Co., 6 BNA OSHC 1244, 1977-1978 CCH OSHD ?22,467; FMC Corp., 5 BNA OSHC 1707, 1977-1978 CCH OSHD ? 22,060; CombustionEngineering, Inc., 5 BNA OSHC 1943, 1977-1978 CCH OSHD ? 22,241; ConcernedResidents of Buckhill Falls v. Grant, 537 F.2d 2938 (3rd Cir. 1976).Respondent next challenges the specific noisereadings taken by the compliance officer used to establish the existing noise levels towhich employees were exposed, and which were the basis for issuance of the Citation.Respondent argues that both the sound level meter and the dosimeters used to take thereadings were inaccurate, unreliable, improperly used or otherwise produced erroneousdata. Respondent lists a variety of reasons why both the sound level meter and thedosimeter did not accurately measure sound levels and noise level exposures, namelyfailure to calibrate the dosimeter prior to inspection, failure to use wind screens onmicrophones, the existence of moisture and wind in the workplace, improper instruction toemployees wearing dosimeters, faulty monitoring of employees wearing dosimeters by thecompliance officer, failure to take noise readings in lunchroom, and the inclusion ofimpact and continuous noise levels in the dosimeter readings.We have reviewed the record most carefully, and findmore than sufficient evidence to support a finding that the sound level meter readings andthe dosimeter readings were reliable and accurate and fully usable as a source toestablish the existence of excessive noise levels in the workplace.Looking to the compliance officer’s conduct in use ofthe sound level meters and the dosimeters, the evidence clearly establishes that thecompliance officer calibrated the sound level meter and dosimeter both before and afteruse in Respondent’s workplace to insure their accuracy (Tr. 2263). That the dosimeter andthe sound level meters were properly operating and accurately recording sound levels andsound level exposures is most clear and convincing in the record and was never challengedby any evidence submitted by Respondent (Tr. 2290, 2291, 2293, 2296, 2297, 2298, 2316,2317, 2428, 2429, 2432, 2433, 2483). Additionally, we find that the compliance officer didinstruct employees in the proper use of the dosimeter and did monitor the dosimeterperformance as well as the employees’ wearing of the dosimeter to insure it had been donecorrectly. When a dosimeter was found to be used or operated in a manner not consistentwith good operational procedures, or used in a manner inconsistent with the instructionsgiven by the compliance officer, the reading of that dosimeter was disregarded (Tr. 2264,2265, 2312, 2435, 2514, 2515, 2516, 2537, 2538). The evidence is clear that the complianceofficer fully understood the importance of proper pre and post inspection calibration ofboth the sound level meter and dosimeter and did so when she used these instruments (Tr.2483, 2481).Additional support for the reliability and accuracyof the noise readings made by the compliance officer is found in the testimony of theSecretary’s expert witness as well as Respondent’s expert witness, both of whom wereacoustical engineers. Each of these experts testified that their own individual noisereadings were consistent with the noise readings taken by the compliance officer (Tr. 918,4547, 4549, 4560-4563, 4594, 4595, 4624). While there is sufficient evidence in thisrecord to show that the compliance officer’s readings, standing alone, were reliable andaccurate, the fact that both parties’ technical consultants, (who were intimatelyconnected with the measurement and analysis of sound and the operation of sound measuringequipment) had found that their measurements were totally consistent with the complianceofficer’s noise measurements established beyond any possible challenge that the soundlevel and sound exposure measurements of the compliance officer, introduced into evidence,were solid, unrefutable, and totally reliable in establishing sound levels existing inRespondent’s workplace and sound exposures of employees.Respondent forwards one last argument concerning thevalidity of the dosimeter readings. This argument deals with the ability of the dosimeterto accurately record sound levels of varying intensity over a period of time. Respondentargues that dosimeters used to measure sound levels in a typical metal fabricatingenvironment, will record and indicate noise levels 5 to 13 decibels of sound (hereinafter\”dBA\”) [[5\/]] higher than the sound levels actually existing in the workplace.Respondent maintains that this situation results from the dosimeter’s inability to recordsimultaneously both impact and impulse noise. As a basis for its argument, Respondentdirects our attention to Chapter VI of OSHA’s Industrial Hygiene Manual,[[6\/]] andstatements by the compliance officer that the dosimeter would record impulse noise but notimpact noise (Tr. 244). Respondent also utilizes the testimony of the Secretary’s expert,George Kamperman, an acoustical engineer, to support the proposition that the dosimetersused in a typical metal fabricating noise environment would produce results 5 to 13 dBAhigher or six times the expected noise relative to the Noise Standards 5 dBA\”exchange rate\” [[7\/]] (Tr. 1168, 1171). Respondent thus asserts that thisdosimeter error coupled with a standard plus\/minus 2 dBA error inherent in every dosimeterresults in erroneous readings from two to six times the expected noise levels in relationto OSHA’s 5 dBA \”exchange rate.\”While the record might show some inconsistency in theprolonged testimony concerning the accuracy of the dosimeter [[8\/]] there appears to be noquestion that the dosimeter is an instrument that can accurately measure and record totalnoise exposure over a specific period of time. I reached this conclusion from the lengthytestimony of Mr. George Kamperman, an acoustical engineer, whose experience in thesematters was significant. He showed a substantial involvement in the development and use ofsound and vibration measuring devices, in addition to the development and production ofthe dosimeter itself (Tr. 740, 741, 743). I find his testimony persuasive concerning thereliable use of sound level meters and dosimeters and an the fact that these devices gaveequivalent answers in the measurement of sound levels, albeit that the format of suchsound readings may be different (Tr. 743, 745, 746). I find Mr. Kamperman’s testimony tobe reliably supported by the record, that the type of noise generated at Respondent’smetal working plant was such that a dosimeter could accurately measure and record thelevels of noise exposure of Respondent’s employees in the workplace (Tr. 747, 918, 1153,1154, 1156, 1157, 1174, 1183).As above discussed, we found the method employed bythe compliance officer in utilizing the sound level meter and dosimeter to be correct andin accordance with standard operating procedures aimed at accurately recording soundlevels and sound level exposures. Now having determined that dosimeters indeed accuratelyrecord sound levels in excess of Table G-16 of the Noise Standard, as determined by theSecretary. It follows then that the Secretary’s allegations, as contained in the Citationand Complaint, that employees were subjected to sound levels exceeding those permissiblelevels listed in Table G-16 of the Noise Standard are supported by significant evidence inthis record and. as a matter of fact and law, will be sustained.This now brings us to the next issue as to whetherthere existed feasible administrative or engineering controls capable of reducing theexcessive noise levels to those levels allowable in Table G-16, of the Standard, andwhether Respondent was obligated to install such controls.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0VI. THE REQUIREMENT FOR USE OF \u00a0\u00a0\u00a0 FEASIBLE ENGINEERING OR ADMINISTRATIVE CONTROLS TO REDUCE EXCESSIVE SOUND LEVELSWe find the language of the Noise Standardunequivocal in its mandate that once noise levels, to which employees are exposed, exceedthose levels listed in Table G-16 of the Standard the employer must utilize feasibleengineering or administrative controls to reduce the excessive sound levels to permissiblelevels. A considerable body of case law has evolved concerning the interpretation of theterm \”feasible engineering controls.\” Within this body of law developed adifficult and changing concept concerning the economic component of technologicalfeasibility. The application of this concept of economic feasibility has over the yearstaken on different meanings within the Commission. Without belaboring this decision withthe complete dialectic history of the definitional evolution of economic feasibility andtechnological feasibility, we will start at that point of interpreting the Noise Standardwith the case of Continental Can, 4 BNA OSHC 1541, 1976-1977 CCH OSHD ? 21,009(No. 3976, 1976).In the Continental Can case, there evolvedwhat has come to be known as the \”cost-benefit\” theory. This theory dealt withdetermining whether controls were feasible or not, whether there was a realisticconsideration of the hazards presented by excessive noise, and whether the health benefitsto employees from noise reduction through the use of engineering controls justified thecost to the employer. The rationale of this decision was that the Act recognized thatperfect safety and health could not be achieved, and that a balancing of costs andbenefits must be made. (Also see, Castle & Cooke Foods, 5 BNAOSHC 1435, 1977-78 CCH OSHD 854, aff’d 692 F.2d 641 (9th Cir. 1982).Propelled by the U.S. Supreme Courts decision in AmericanTextile Manufacturers’ Institute, Inc., v. Donovan, 101 S. Ct. 2478 (1981), (hereafter\”ATMI\”), the Commission in Sun Ship, Inc., 11 BNA OSHRC 1028, 1983CCH OSHD 26,353, appeal dismissed No. 83-3081 (3rd Cr. 1983), found Continental Can to bean erroneous decision and set aside the cost-benefit theory of economic feasibility. TheCommission held that the Supreme Court in ATMI had determined that wheninterpreting standards the term \”feasible\” meant \”capable of beingdone\” or \”that which is achievable\” and that Congress intended employeehealth to outweigh \”all\” other considerations save those making the attainmentof this benefit \”unachievable\” (101 U.S. at 2490). The Commission’s concept ofengineering and economic feasibility looked to specific cost considerations and, whethersuch costs would be so high as to threaten the economic viability of an industry. TheCommission placed upon the Secretary the burden of proving feasibility and that the costof the engineering and administrative controls would not threaten the cited employer’slong-term profitability and competitiveness, or that the employer’s inability to affordthe cost of controls resulted from the employer’s lagging behind its industry in providingsafety and health protection for employees. [[9\/]] Thus, in Sun Ship we find theCommission fairly well tailoring its definition of technological and economic feasibilityalong the lines articulated in the ATMI case.Looking to the most recent of Commission cases(issued July 20,1984) we see the Commission requiring The reexamination of the economicfeasibility ruling contained in Sun Ship. Sherwin-Williams Co., 11 BNA OSHC2105, 1984 CCH OSHD ? 26,986. The Commission in Sherwin-Williams, determined thatthe cost benefit analysis contained in Continental Can and Castle & Cookecases still had application) in noise cases regardless of the holding in ATMI. TheCommission reached this decision by holding that the ATMI decision had limitedapplication to standards promulgated under Section 6(b)(5) of the Act, quoting IndustrialUnion Department v. American Petroleum Institute, 448 U.S. 607, 642 (1980). TheCommission specifically stated that the Supreme Court had expressly reserved judgment onthe promulgation of standards under Section 3(8) of the Act, 29 (U.S.C. ? 652(a) (ATMI,452 U.S. at 513 (note 32).That being the case, the Commission concluded it wasnot required by ATMI to abandon the cost-benefit approach of Continental Can.Significantly the Commission found support in bringing back the cost-benefit theory in therulings of the Fifth, Ninth and Seventh Circuit Courts, citing Marshall v. West PointPepperell,Inc., 588 F.2nd 979 (5th Cir. 1979); Donovan v. Castle & Cooke Food,692 F.2d 641 (9th Cir. 1982); International Harvester Co. v. OSHRC, 628 F.2d 982(7th Cir. 1980); Turner Co. v. Secretary of Labor, 561 F.2d 82 (7th Cir. 1977).We now reach that point, in this decision at least,where we must determine what test or theory of economic feasibility is to be applied, andby what method we must apply that particular theory to the facts of the case. This is notwithout some difficulty since the Commission in returning to the \”cost-benefit\”theory, distinguishing the ATMI and Sun Ship cases from its own basicruling, came to rely on various Circuit Court cases to reach a synergistic decisionbalancing its own rational set out in Sherwin-Williams with that of the variouscircuits. Accordingly, while we are constrained now to apply the \”cost-benefit\”theory in reaching the economic feasibility issue, we must look to the circuits forguidance in the application of that theory. In this regard we, in the instant matter, areparticularly bound to the rulings of the Seventh Circuit.In International Harvester, supra theSeventh Circuit’s evaluation of economic feasibility of noise controls, like theCommission, required that all relevant costs and benefit factors be considered. However,unlike the Commission, the Court pointed out that in comparing costs and benefits,benefits to employees must be weighted more heavily in the calculus than costs to theemployer (628 F.2d at 988). Departing from the ruling of the Seventh Circuit, a; well asother circuits, we find the Commission in Sherwin-Williams, in reaching its owncost analysis, comparing the cost of earplugs to the cost of engineering controls withpredictable results assured. Furthermore, unlike the Commission holding, the 7th Circuitheld that the fact that controls are expensive does not mean they are not economicallyfeasible under the cost-benefit theory, citing Turner Co. v. Secretary of Labor,561 F.2d 82 at 988 (7th Cir. 1977).The Seventh Circuit, in International Harvester,held, that since the use of personal protective equipment could not prevent allemployees from experiencing hearing loss and hearing difficulties, the benefits toemployees from implementation of engineering noise controls would be substantial (at 989).The Court, like the Commission, considered the fact that substantial noise reductionscould be obtained through the use of engineering controls, and that such substantial noisereduction would prevent hearing loss. However, the Court in recognizing the remedialpurpose of the Act, after considering the availability of personal protective equipmentwhich had a miniscule cost in relation to the cost of implementation of feasibleengineering controls, found the benefits of engineering controls such that they were heldeconomically feasible.It should be noted that the Commission, in Sherwin-Williams,in reaching its conclusion as to whether engineering controls were economically feasible,within the meaning of the Noise Standard, specifically looked to the holdings of thevarious Circuit Courts, i.e., Fifth, Sixth, Seventh and Ninth to determine if their costswere justified or not when measured against their expected benefits, 11 OSHC, at p. 2109,1984 CCH OSHD 26,986, at p. 34,703. Accordingly, it will be necessary for us to reviewthose considerations of the Seventh Circuit as to \”expected benefits\” in makingthe correct balance under the cost-benefit theory, and then juxtapose those considerationsagainst the Commission’s own application of the cost-benefit theory in order to arrive ata decision which comports with applicable and controlling law.It must be said at this point that, looking to thefacts of this case, and then applying controlling Circuit rulings, the result to bearrived at will be somewhat different than one would initially expect under the holding ofthe Sherwin-Williams case. The Commission in adopting the cost-benefit theory,unlike the Circuit rulings. placed great emphasis on the cost component in thecost-benefit formula, comparing costs of engineering controls to costs of earplugs. Thiscan be seen from the language of Sherwin-Williams wherein the Commission states:\”The burden of producing evidence then returnsto the Secretary \”who must establish that the benefit of the proposed engineeringcontrols justifies their relative cost in comparison to other abatement methods.\”1984 CCH OSHD 26,986, at p. 34,072\”In this case, the cost per employee is evengreater than that in Continental Can and Castle & Cooke. . .here, thetotal cost is many times higher and-significant continuing costs will be incurred. ..\” 1984 CCH OSHD, 26,986 at page 34,703). . .The Seventh Circuit in contrast to the Commission, indiscussing costs, has consistently held that relative cost comparison should not to bemade between personal protective equipment and engineering controls stating\”furthermore in comparing costs and benefits, benefits to employees weigh moreheavily in the calculus than cost to the employer.\” See International HarvesterCo., supra at 988; RMI Co., supra at 572. We find a dichotomy inthe term \”benefits\” as understood by the Commission and as understood by thosecourts which have, from time to time, defined the cost-benefit theory. The Commission in Sherwin-Williamshas given to the term \”benefits\” a performance ingredient focusing on theperceived capabilities of personal protective equipment [[10\/]] as opposed to thedefinitive capabilities of engineering controls. In Sherwin-Williams, this\”capability\” ingredient translated into employers being given the option tochoose either engineering controls or a program of personal protective equipment incomplying with the basic terms of the Standard. It is in this context that the Commissionunderstands the term benefit, a concept quite apart from that ascribed to by the variousCircuit Courts who have spoken on this issue.The Commission, in arriving at their understanding of\”benefits\” looked to the least costly means or measures of interpretingostensible compliance with the Standard, all but ignoring the considerable benefits whichwould be obtained by the employees through the more expensive method of lowering soundlevels. The Commission’s approach to defining \”cost benefits\” is to do so interms of the least costly proposed abatement method, without taking into consideration theabsence or shortfalls in health and safety benefit to employees as is easily seen by theevidence they considered and did not consider, and as noted in the Commission’sconclusions that\”the testimony of employees reveals thatshortcomings exist in Sherwin-Williams’ personal protective equipment program but they donot affect the conclusion that the wearing of earplugs by Sherwin-Williams’ employeesreduced sound levels experienced by employees within Table G-16 limits. While engineeringcontrols would significantly reduce noise exposure, the Secretary has failed todemonstrate that the benefits that will be achieved by the controls justify the cost ofimplementing them.\” 1984 CCH OSHD at page 34,702.Significantly the Commission’s conclusions in Sherwin-Williamsfollowed unrebutted testimony of employees that the wearing of earplugs and earmuffsproduced \”discomfort, difficulty in communication, hearing loss, difficulty indetermining the source of sounds, and ear infections…that employees took earplugs outduring the workday and altered the plugs to make them more comfortable.\” 11 BNA OSHCat 2107, 1984 CCH OSHD, at p. 34,699. Additionally, three experts in the field ofaudiology bolstered the testimony of the employees, in that each indicated that theemployer’s program of personal protective equipment did not protect the hearing ofemployees and that employees would suffer hearing loss if they continued to work in thesound levels existing at Sherwin-Williams’ worksite. The Commission’s emphasis on thetotal dollar expenditure as the controlling factor in applying the\”cost-benefit\” theory was pointed out by Commission Cleary in his dissentstating:\”By its decision the majority virtuallyeliminates engineering controls from the Noise Standard. This is neither consistent withthe language and purpose of the Act nor with the Commission power.\”1984 CCH OSHD, at pages 34,703, 34704Thus, we see the Commission’s application of thecost-benefit theory, as above discussed, presenting a significant departure from theSeventh Circuit application, as well as these other Circuit rulings on this issue. TheCircuits have been unanimous in their view that in applying the \”cost-benefit\”theory one must emphasize the benefits a particular mode of compliance with the Standardwill give employees, and not the cheapest and least expensive way possible for theemployer to gain compliance with the Standard. In International Harvester Co., supra,the court noted, in finding engineering controls preferable to the less expensive earplugmethod,\”the benefit to employees fromimplementation of engineering noise controls will be substantial. The use of personalprotective equipment has not prevented hearing loss and hearing difficulties among theseemployees. Implementation of engineering controls will bring all 80 employees withinpermissible noise exposure level\” (at 989). (Emphasis added).Likewise the Fifth and Sixth Circuits (cited by theCommission in reaching its interpretation) follows the Seventh Circuit in holding that theNoise Standard reflects the determination that the preferable method of abating hazardousnoise exposure is through technological or administrative controls such as theinstallation of damping material to machine surfaces and work walls. (Marshall v. WestPoint Pepperell, Inc., 588 F.2d 979 at 981) (5th Cir. 1979); RMI Co. v. Secretaryof Labor, 594 F.2nd 566 (6th Cir. 1979). The courts have found that numerous medicaland physiological studies document the serious effects of excessive noise exposure onemployees, (West Point Pepperell, Inc., supra, at 981, footnote 4). Ofparticular significance is the courts recognition of the Noise Standard’s mandate thatonly when engineering or administrative controls are not feasible, would workers beprovided, and required to wear, personal protective equipment (West Point Pepperell,Inc., at 981). Likewise in RMI Co. v. Secretary of Labor, supra thecourt quoting Turner Co., 561 F.2d 82 (7th Cir. 1977), held that the cost ofproposed controls was to be balanced against the proposed benefits flowing therefrom inorder that resources would be allocated in priority to the degree of harm established andthat \”Controls will not necessarily be infeasible merely because they areexpensive.\” (at 572) Thus we see somewhat of a uniform approach by the variousCircuits, including the Seventh, that in applying the cost benefit theory it is thebenefits to employees that must be compared to the costs rather than the making of acomparison of costs of personal protective vis-a-vis the costs of engineeringcontrols.Looking to both Commission and Circuit case law, wefind ourselves with distinct differing interpretations as to the application of thecost-benefit theory. We find the Seventh Circuit application showing an emphasis towardsemployee health and safety considerations,[[11\/]] whereas the Commission, in Sherwin-Williams,while recognizing that employees were experiencing hearing loss and having troubles withthe personal protective equipment program, nonetheless choosing personal protectiveequipment as the most expedient means of complying with the Noise Standard. In opting forexpediency the Commission, in Sherwin-Williams, garnered to the employer theeconomic benefits of a cheaper means of compliance, subordinating the protective benefitsassociated with the more costly engineering controls — all the while employeesexperiencing hearing loss, ear infections, and other safety related dangers in the highnoise environment where they were obligated to wear earplugs. The Seventh Circuit, quiteapart from the Commission, specifically found engineering controls to be economicallyfeasible by reason of the very fact that they benefited those employees who did experiencehearing loss and other hearing difficulties, and that it represented a means which wouldbring all employees within permissible noise exposure levels. InternationalHarvester Co. v. OSHRC, supra at 989. We find ourselves with two distinct approaches to theapplication of the cost- benefit theory, each having significant differences anddepartures from one another — all of which leave us in a difficult position in fashioningan Order in this case. Looking to guidance from the courts, we are assured of the generalprinciple that an agency is charged with the responsibility of formulating law or policy,while the courts bear the final responsibility for interpreting that law or policy. BeverlyEnterprises v. NLRB, 727 F.2d 591 (6th Cir. 1984). We are bound by Commissionprecedent to apply the \”cost-benefit\” theory, as mandated by Sherwin-Williams,disregarding the former \”feasibility test\” of Sun Ship. We are likewisebound to follow the dictates of the Circuit Court’s appellate jurisdiction, and not departfrom their judgmental interpretation and application of the rules promulgated by theCommission, Beverly Enterprises v. NLRG, supra; Smith Steel CastingCompany v. Donovan, 725 F.2d 1032 (5th Cir. 1984).Accordingly, we find ourselves constrained to followthe case law of the Circuit in which these proceedings have taken place, and are requiredto apply the courts reading of the cost benefit theory within the Standard. Smith SteelCasting Co. v. Donovan, supra; Beverly Enterprises v. NLRB, supra.Looking to the test established by the SeventhCircuit, the benefits to employees will be weighed against the cost to the employer, andall relevant cost and benefit factor will enter into the determination of economicfeasibility. However, unlike the Commission, employee benefits will weigh heavier on thescale than costs to employer, and we will look to an abatement method that leaves noemployee behind, unprotected, and possibly sustaining injury. RMI Co. v. Secretary ofLabor, supra at 572, International Harvester Co. v. OSHRC, supra,at 988 and 989. As will be more fully discussed below, applying this test, it is clear thebenefits to employees from mandating the installation of engineering controls will befound to decisively outweigh their costs to the employer, and will be required of theemployer where found technologically feasible.VII. BENEFITS UNDER COST BENEFIT THEORYThe litmus test in determining economic feasibilityof proposed engineering controls under the cost-benefit theory requires that we carefullyanalyze those benefits which inure to the employees from the imposition upon the employerof the requirement to provide such engineering controls, and weight them against cost ofsuch controls to the employers. At the same time there must be a realistic recognition ofthe capabilities of a program of personal protective equipment and its ability to meet thehealth hazard associated with excessive noise levels. Selection of the most effectivemethod, in terms of employee protection after each method has been found to be a viablealternative, would be the last step toward compliance with the Standard. — For practicalpurposes we will compare the two methods.First in taking inventory of employee benefitsobtained through engineering controls and through personal protective equipment, it isimportant that we fully understand the nature of the health hazard involved. We find, andthe record herein demonstrates, that excessive noise levels represent an insidiousoccupational health hazard manifesting itself in sensory neural hearing loss. It isinsidious because the,\”hazards to the auditory system are not dramaticlike hazards to vision – onset is slow and deterioration is gradual. Often the process isfar advance before it is noticed and only then is the extreme social debilitation ofdeafness recognized – too late for either prevention or corrective measures to helpmuch.\” (Respondent Exhibit 10, p. 59)In opting for a particular means of protection it isparticularly important to choose the most effective or proven means to protect theemployees since unrealized expectations of a particular touted mode of employeesprotection when found wanting, will have allowed for the hazard to cause hearing loss toemployees. Hearing loss induced through the excessive noise levels is irreversible sinceit involves damage to the neurological auditory sensors (Tr. 3900). The loss of this vitalsensory system has a significant adverse impact and creates a handicap in a person to adegree closely comparable in magnitude to the handicap associated with loss of sight (Tr.3898-3899). Indeed it could be said that a person who is blind can function much better insociety than a person who has experienced a hearing loss (Tr. 3897). Clearly the qualityof life of a person experiencing noise induced hearing loss is significantly impaired (Tr.3898, 3899).Employees who begin to experience hearing loss due toexcessive noise levels in the workplace will continue to do so if they remain in the highnoise level (Tr. 3900). It is only through the reduction of noise levels to approximately80 dBA that there exists no risk to employees from the pernicious and insidious healthhazard associated with such exposure to high noise levels (Tr. 3901, 3908).In assessing the benefits to employees and weighingthem against the cost of engineering controls, vis-a-vis the costs for a program ofpersonal protective equipment, we must compare the scope of protection afforded theemployees from each mode and how each provides that necessary quantum of protection fromthe hazards involved. International Harvester Co., supra; RMI Co. v.Secretary of Labor, supra.The evidence establish that noise levels inRespondent’s plant were excessive, generally averaging in the upper 90’s dBA range, (97,98, 99 dBA) and at times reaching 113 dBA (Tr. 2267-2284). It is important then that inresolving the \”cost-benefit\” issues herein we select a means of hazard abatementwhich would reasonably assure all of Respondent’s employees protection from the dangeroushigh noise level. The Seventh Circuit found this test to be a particularly important onein choosing a means of employee protection; it was on this basis that the court foundengineering noise controls feasible under the cost-benefit theory (notwithstanding theirsignificant costs), rejecting a program of personal protective equipment as a suitablemethod of compliance. International Harvester Co., supra at 989.[[12\/]] Wefirst look to the levels of protection obtained from use of a program of personalprotective equipment.The evidence in this case unequivocally establishedthat the advertised expectations for noise attenuation obtained from use of personalprotective equipment did not correlate with its actual on-the-job performance as a meansof noise hazard protection. Comprehensive studies showed that in actual use personalprotective equipment did not provide the extent of protection that it was designed or heldout to provide. Looking to Respondent’s Exhibit R-10, we find that attenuation factors forearplugs varying greatly from their advertised and mean attenuation expectations. Indeedit appeared undisputed that the results of recent studies indicated that hearingprotectors, worn in real life conditions, produced attenuation results, for a given workforce, in a quantum far less than the manufacturers stated estimates of noise attenuation(Tr. 3862), Ex. R-10; also see Sherwin Williams Company at 34,705, footnote 5,Commissioner Cleary dissenting) [[13\/]]. In the instant case we find that Respondentprovided its employees with two types of earplugs, these being \”Swedish Wool\”and the \”E-A-R\” earplug (Tr. 405). Utilizing Exhibit R-10, we are able toevaluate the actual degree of employee protection provided to Respondent’s workforce byuse of these earplugs.In the case of the earplug known as \”SwedishWool\” under the trade name of Bilson, (Exhibit R-10, page 17), we find that while themajority of those employees, who correctly wore the earplug, received a mean attenuationof 18.4 decibels of noise attenuation, a significant portion of the employees wouldreceive only 13.5 and 8.4 decibels of noise attenuation (Ex. R-10, page 10, line 5).Applying these attenuation factors to noise levels existing at the workplace, we find thatthe neural component of some of the employees’ ears, while wearing the earplug, wereexposed to noise levels from 105 decibels to 97 decibels in the higher levels, and 90 to82 in the lower levels. Looking to the data for the \”E-A-R\” earplug, we findthat while the majority of employees would receive 31.5 decibels of attenuation, ifcorrectly worn, a significant portion of the employee population would receive 24.1 and16.5 attenuation. This would result in employees, who wore the earplug, being exposed tosound levels of 89 to 97 decibels in the higher end of noise exposure.It should be noted that cited attenuation figuresapply to those individuals who correctly comply with Respondent’s plan of personalequipment. Those employees who, knowingly or unknowingly, incorrectly use or insert theplugs, or who by reason of inability due to discomfort, ear infection, or personalreasons, fail to wear their personal protective equipment throughout the work day, will ofcourse receive a small modicum of protection or no protection at all. [[14\/]] Consistentwith this finding that not all employees who wore earplugs were receiving adequate noiseprotection was the evidence, of record, that Respondent’s employees were experiencingneurological damage to their ears from the excessive noise levels, and that Respondent’smethod of choice of complying with the Noise Standard, its program of personal protectiveequipment, was not capable of providing that quantity of protection to all employeesnecessary to arrest their continued loss of hearing.This learned fact, of course, is not to be unexpectedsince the evidence established the existence of gaps or lapses in the program such as whenemployees, while wearing the \”E-A-R\” earplug and receiving greater noiseattenuation benefits, found that in order to carry out their job functions they needed,from time to time, take the earplug out to communicate in the workshop or on the telephone(Tr. 2218). Additionally, the inserting and removing of earplugs seemed to present aproblem to employees by reason of the oil mist in the air and the deposits of oil on theearplug and within the ear (Tr. 2218, 2219). Consistent with the evidence of difficultiesin use of earplugs was the testimony of employees who reported hearing loss since workingat Respondent’s workplace (Tr. 2091, 2213, 2232, 2237, 3876).The phenomena of lower expectations in the capabilityof personal protective equipment seems consistent with other documentary evidence whichshowed that employees were experiencing noise induced hearing loss, or were tending towardthat condition. Looking to Respondent’s own audiometric examinations, many employees wereshowing signs or trends towards noise induced hearing loss. (Ex. C-75, 76, 77, 80, 81).While Respondent’s expert in the field of audiologydisputed the fact that employees were experiencing signs and trends of hearing loss,resulting from excessive noise level, to any degree exceeding that of the generalpopulation, I specifically find the conclusions of Respondent expert, in this regard,without any credence or persuasiveness since the method employed by Respondent’s expert toarrive at these conclusions were Without foundation and appeared contrary to the basicfacts of this case. Looking to the testimony of Respondent’s expert concerning hiscalculations of the percentage of hearing loss within Respondent’s work force, what hecalculated and considered to be a normal rate of hearing loss among employees, as comparedto the general population, would within 20 years leave each and every employee within thatwork force stone deaf. One could hardly characterize such a result as normal, as didRespondent expert witness (Tr. 3442, 3667, 3679, 3685, 3796-3801).Using Respondent’s own audiometric test results we dofind credible the fact that 28.6% of the employees in Department 75 showed adverse changesin hearing sensitivity, 14.9% of employees in Department 2 showed trends and shiftstowards hearing impairment, and in Department 6, 6.3% showed such shifts in hearing (Tr.3705-3706, 3707, 3708, Ex. C-77, 78, 79, 80, 81). Apparently on a plant wide basis, 17% ofemployees showed shifts in their hearing (EX. R-28, Tr. 3705).Significantly, the data introduced at trialconcerning the audiograms, and the extent employees were experiencing adverse shifts intheir hearing, is consistent with the testimony of the employees themselves concerningproblems developing in their hearing while employed at Respondent’s work place. Employeestestified that since being employed with Respondent their hearing had deteriorated and hadpresented them with problems in communicating with others (Tr. 2091, 2213, 2232, 2237). Wefind that substantial evidence has amply demonstrated the fact that a program of personalprotective equipment (earplugs, ear muffs) is not able to afford to all of Respondent’semployees that requisite quantity of protection, under the Noise Standard, from thehazards associated with high noise levels in the workplace. The courts have mandated thatsuch a program is unacceptable as compliance with the Noise Standard under the costbenefit theory. International Harvester, supra; West Point Pepperell,Inc., supra.While the dollar costs of such a program of personalprotective equipment are clearly nominal when compared to the costs of engineeringcontrols, effective protection of the entire work force is a benefit lost with sucheconomies. When looking to the efficacy of engineering controls, however, we are assuredof one controlling fact, that being that the noise exposure of all employees willnot exceed that level obtained through use of noise controls designed to lower theexcessive noise levels. As recognized by Respondent’s own expert, a good hearingconservation program aimed at conserving human hearing includes the use of engineeringnoise controls to lower overall noise levels (Tr. 3765, 3888). Once engineering controlsare in place there should be no reason why an employee should sustain hearing impairmentas a result of excessive workplace noise (Tr. 3888). This is a benefit that just can notbe overlooked and one the courts have used to justify reasonable costs expenditures forfeasible engineering controls. Furthermore the courts have recognized that the employer isobligated to take those steps necessary to protect those workers who predictably will notfare well under a program of earplugs or ear muffs. (International Harvester, supraat 989; pp. 35 to 39, supra).It is important to be aware of the fact that once theinsidious nature of high noise levels is eliminated through use of engineering noisecontrols no employee in the work force will be adversely affected. We further know thatemployees showing potential risk of hearing loss, once in the lowered noise levels willnow enjoy no threat to their hearing and any hearing loss experienced will be arrested(Tr. 3901, 3873, 3900).When considering that employees are working in anenvironment of noise levels up to and exceeding 100 decibels the use of earplugs hardlyseems the type of benefit envisioned by the Noise Standard; its mandate requires realisticemployee protection from the hazards of high noise levels. The various Circuit Courts havelikewise reached this same conclusion in interpreting the standard. InternationalHarvester Co. v. OSHRC, supra; RMI Company v. Secretary of Labor, 594F.2d 566 (6th Cir. 1979); Marshall v. West Point Pepperell, Inc., supra.It has not been disputed that none of the adverseconditions effecting employees would exist if noise levels were lowered through the use ofengineering controls since all employees in the workplace would have an exposure nogreater than that of the lower noise levels obtained through the utilization of theengineering controls. We view this as a benefit to employees that well justifies the costassociated with feasible engineering controls and is a result mandated by the Act, as setforth in its stated purpose assuring assure \”every working man or woman\” safeand healthful working conditions (29 U.S.C. ? 651(b)).It must be emphasized at this point that in Section2(b) of the Act, Congress specifically declared it to be its purpose to assure so far aspossible \”every working man and woman\” safe and healthful workingconditions 29 USC 865(b). Thus following this language we would expect an understandingthat all employees are entitled to adequate occupational safety and healthprotection. Accordingly, a means of compliance with safety or health regulations thatgarners to some, or even most, employees the required occupational safety and healthprotection is inconsistent with the stated purpose of the Act if it does not protect allemployees. Such a means of compliance is not acceptable as compliance with the purposes ofthe Act, regardless of whatever theory of \”cost-benefit\” is applied, RMICompany, supra at 572; International Harvester, supra at 989.Exhibit R-10, together with the testimony of employees, the audiometric examinations, andreports of Respondent’s expert show large gaps in employee noise protection making theprogram of earplugs unacceptable as a means of compliance with the Noise Standard, asrequired by the Act and as interpreted by the cases cited.One last point concerning the comparative benefits ofengineering controls and personal protective equipment. A key adjunct to the effectivenessof a personal protective equipment program is the requirement to monitor the work force’shearing with follow-up to any difficulties brought out by such monitoring; the monitoringof the hearing health of employees is done through audiometric testing. In the instantcase we find Respondent did administer audiometric examinations to its employees workingin the hazard area. However, for such program to be operated correctly, as an objectivemonitor of the effectiveness of the personal protective equipment, employees who are shownby the examination results not to be doing well should be removed from the noise hazardarea so as to forstall any further loss in their hearing. They are then to be referred outto a doctor for consultation.Further, for a program of personal protectiveequipment to provide the benefits of effective employee protection from the noise hazard(in particular the type of benefit envisioned by the Commission as articulated in Sherwin-Williams,supra), the monitoring program itself had to be fully effective, administeredcorrectly, and conscientiously applied in order to have any semblance of effectivenesscomparable to engineering noise controls (Tr. 3438, 3764, 3765, 3888, 3889, 3890, 3891).Thus, if the audiometric testing facet of the program of personal protective equipment isfound ineffective, so must the entire program of personal protective equipment beevaluated. According to Respondent’s own expert, the issuance to employees of earplugsalone cannot be considered an effective hearing conservation program designed toadequately protect employees from the hazards of high noise levels (Tr. 3764, 3767, 3888,3890, 3891).In the instant case we find Respondent’s program ofpersonal protective equipment a failure (not only from its inability to adequately protectall employees in the workplace as earlier discussed), but from the fact that themonitoring of the employees success in use of the earplugs was superficial at best. andotherwise a dismal failure. Respondent did administer audiometric examinations toemployees but that was as far as it went. The record herein is replete with evidenceshowing that the data contained in the audiometric examinations was all but ignored. Theevidence showed that the audiometric tests were given solely to establish the fact thatsuch examinations were given, and not for the purpose of monitoring the health of theseemployees exposed to the high noise level. Nor were the audiometric examinations used tomonitor the effectiveness of the earplug program in the workplace (Tr. 76, 86, 87, 96).Employees were not told of the results of theaudiometric exams, even though these examinations indicated hearing loss. What insteadoccurred was for Respondent to lock away the exam results in the safe of its GeneralManager. While Respondent’s expert industrial audiologist would review the examinationresults, and issue a printed report calling attention to the fact that employees wereexperiencing shifts in their hearing, these reports, like the audiometric examination,were also locked away in the safe and not used in any manner whatsoever including themonitoring of adversely affected employees. The evidence is replete that the monitoringprogram was a sham, designed solely to have it appear as though there was some sort of anact of compliance with the Noise Standard by Respondent — and it was nothing more thenthat (Tr. 74, 76, 77, 78, 86, 96, 97, 99, 107, 401, 435, 2090, 2209, 2210, 2211, 2229,2230, 4311, 4309, 4313, 4314).Indeed the individual who was responsible foremployee safety and health, the Manager of Security and Safety, admittedly did not knowthe meaning and purpose of the information given to Respondent by its own audiometric’sexpert. Nor was he one bit interested in understanding what the audiometric exams as awhole showed (Tr. 87). He merely viewed the program of audiometric exams, with itscomputer analysis printout, as a means of complying with the hearing conservation programmandated under the OSHA regulations (Tr. 96). In accordance with this view, Respondent hadplaced all the documents in a safe in the General Manager’s office never to be seen by anyemployee or member of Respondent’s supervision again (Tr. 96, 97). Even if the audiometricexaminations and analysis reports were to reveal an employee going stone deaf nothingwould be done and the reports would be filed away never again to see the light of day (Tr.100-107). Accordingly, we must conclude from this, that as a matter of fact, Respondent’sprogram of personal protective equipment did not offer the same requisite degree of safetyand protection to employees that would have been available to employees had Respondentinstalled engineering controls to lower the excessive noise levels to safe levels.SUMMARYWe find the facts to squarely reveal that a programof personal protective equipment is not able to adequately protect all employees in theworkplace from the hazards of excessive noise. We further find that the facts show thatonly through use of feasible engineering noise controls would all employees be assuredthey were receiving adequate protection from the harmful effects of excessive noiselevels. Additionally, the lowering of excessive noise levels through use of feasibleengineering controls would prevent those employees who had experienced hearing loss, orwho showed signs or trends of hearing loss, from experiencing further damage to theirhearing. Thus, as a matter of fact, we find that the benefits to employees from theinstallation of feasible engineering controls justifies the reasonable costs associatedwith the installation of such controls.We find that personal protective equipment, withtheir lesser costs, can not provide the same degree of success in protection from theharmful effects of high noise levels as would engineering controls. We find, as a matterof fact, that the use of personal protective equipment, with all its economies of cost,not preventing hearing loss among all employees, a result which could be obtained throughuse of engineering controls.The evidence has established that the use of personalprotective equipment did not prevent all employees from experiencing hearing loss,that employees complained of hearing difficulties, that employees who experienced hearingdifficulties were continued in employment in the high noise area, and under thesecircumstances the Seventh Circuit (as well as all other Circuits) find that the reasonablecosts of engineering noise controls is well justified, — to which we are bound. InternationalHarvester, Inc., supra; RMI Company v. Secretary of Labor, supra.The fact that the cost of the engineering noise controls is far greater than the cost ofpersonal protective equipment does not alter any conclusions herein which would makeengineering controls economically unfeasible, as has currently been determined by theCommission. We are thus left with the inescapable legal conclusion that, under the factsof this case, after application of the cost-benefit theory, feasible engineering controlare required to lower noise level in Respondent’s workplace.VIII. TECHNOLOGICAL FEASIBILITY OF ENGINEERINGNOISE CONTROLSWe now turn to the issue of whether there wereavailable to Respondent feasible engineering noise controls capable of lowering soundlevels in the cited workplace. This issue, generally referred to as \”technologicalfeasibility,\” deals with the availability of engineering controls capable of loweringsound levels while at the same time being fully compatible with the manufacturing andmaintenance processes associated with the machinery that is the subject of the noisesuppression activity. As part of the technological feasibility issue, there exists aneconomic component dealing with the reasonableness of the cost for such controls asbalanced against the amounts of noise reduction that can be obtained from such controls.(We suggest this is where the thrust of the \”cost-benefit\” determination shouldreside).With respect to the economic component oftechnological feasibility, the proposed noise control should incorporate a reasonablebalance between its noise suppression ability, the number of employees who will beaffected by the installation of such controls, and its ultimate cost. If a reasonablebalance is met between these three factors, then the controls must be consideredtechnologically feasible if they are otherwise able to lower noise levels without harmingthe manufacturing process. Establishing that the engineering controls are technologicallyfeasible, and that there exists a reasonable balance between these three mentioned factorsof noise suppression ability, the number of employees affected and ultimate cost, is theresponsibility of the Secretary who must preponderate on these issues. Sherwin-WilliamsCompany, supra; Donovan v. Castle and Cooke Food, 692 F.2d 641(9th Cir.1982); RMI Company v. Secretary of Labor, supra at 574.Before turning to the individual facts involvingtechnological feasibility, it is important to sort out what evidence was found credibleand reliable and what was not. Considerable evidence and testimony has been submitted inthis record on the issue of feasibility of engineering controls. In evaluating thepersuasiveness of this evidence, we find that both the Secretary’s and Respondent’sacoustical engineering experts were highly credible witnesses whose views we foundpersuasive in reaching resolution on these issues. Complementing the views of the expertswas the testimony received from those employees who both operated and maintained themachines which are the subject matter of the action. The evidence received from thesewitnesses had considerable impact upon the ultimate conclusions concerning the feasibilityof engineering noise controls. We, however, do not find the same reliability or degree ofpersuasiveness in the testimony given by two of Respondent’s witnesses concerning theproposed engineering controls. We specifically refer to the testimony of Mr. Prem Rai andMr. Ted Gabryszewski. We find their testimony generally unreliable, biased andinconsistent with that credible testimony received from the operators and maintenanceemployees who, on a daily basis, worked with the punch presses and screw machines.With respect to the observations of Mr. Rai, and hiscalculations concerning the estimated stockups made of each screw machine per day,together with the time calculated necessary to gain access to the screw machines throughthe doors on the proposed acoustical enclosures. we find no support in this record fortheir reliability. His conclusions were at odds with the credible testimony of thoseemployees who operated and serviced the screw Machines and who were intimate with the dayto day operation of the machines. We find the testimony of Mr. Rai and Mr. Gabryszewskinot reconcilable with the credible evidence as a whole, and give no persuasive element toit. Continuing along this line. we find the proposition contained in Respondent’s\”domino theory,\” where employees would open noise enclosures on a sequentialbasis in order to hear their machines operating, to be inconsistent with the facts of thecase and contrary to acoustical principles established by the expert in recommending suchnoise controls.Since we disregarded the general conclusions reachedby Mr. Rai and Mr. Gabryszewski as without foundation or reliability, it follows then thatthose opinions of Respondent’s acoustical engineering expert which were based upon theconclusions and calculations of Mr. Rai and Mr.Gabryszewski, and not of the experts ownpersonal knowledge, must likewise be disregarded. With this in mind, we can now review theappropriateness of the engineering controls proposed by the Secretary as feasibleengineering controls.Department 75Department 75 contains approximately 72 Davenportautomatic screw machines (Tr. 144, 2170, Exhibit R-8). These machines fabricate smallmachined components from bar stock fed into the receiving end of the machine, The partsproduced are utilized in the assembly of Respondent’s various product lines (Tr. 2168,2612, Exhibits R-8, C-13, AE-1).Screw machine operators generally are assigned theresponsibility for the operation of two screw machines during an eight-hour shift (Tr.2169). Approximately 67 employees are assigned to Department 75 during the two shifts theDepartment is in operation (Tr. 327, Exhibit C-24). On the average, approximately 50 ofthe 72 machines are in operation on a given day (Tr. 1847, 2178). The screw machineoperators’ duties are such that most of the workday is spent near his machines within theDepartment (Tr. 2172, Exhibit C-15).The Davenport screw machine is a noisy machine,having sound levels frequently exceeding the OSHA standard. On the average, operators areexposed to 99-102 decibel during their workday (Exhibits R-8, C-74). The engineering noisecontrol proposed for the Davenport screw machine is a complete acoustical enclosure of themachine (Tr. 481, 1840, 2458). The Secretary’s expert witness, whose testimony I findcredible an this subject, testified that the noise enclosure for a Davenport screw machineis a state of the art, off-the-shelf item easily available to Respondent. He had seenthese enclosures used in 50 to 100 other manufacturing facilities (Tr. 909). Theacoustical noise enclosure for a screw machine is not an unusual engineering solution, butis one very familiar to the industry and one that will significantly achieve noisereductions bringing the noise level within compliance with the Noise Standard (Tr.913-916). Indeed, it is possible that noise levels could be brought to levels of 85decibels in this workplace (Tr. 2036, 2037).The cost for such acoustical enclosure isapproximately $4,000-6,000, plus a like amount for installation (Tr. 916). We find theSecretary’s expert’s conclusions consistent with the experience of the Respondent’s ownpersonnel who had constructed a prototype shroud to cover the Davenport stock tubes, andthis was found to be very effective in reducing noise levels (Exhibit C-43).Interestingly, Respondent declined the installation of noise enclosures, since it feltthat such action would needlessly comply with the Act (Tr. 1555, 1556, Exhibits C- 43,C-45, C-46). Additionally, in 1972 the Respondent had begun ordering acoustical enclosuresfor screw machines, five of which were installed in 1974 (Tr. 1821, Exhibits C-18, C-78,p. 68, C-49, p.9). Respondent later changed its supplier of acoustical noise enclosures tothe GT Safety Equipment Company (Tr. 1844-1846, 2183, 2793). At the time of the hearing,approximately 24 screw machines were equipped with enclosures in Department 75, producingsignificant noise reductions (Tr. 1843, 3124).\u00a0We find that the acoustical enclosures are compatiblewith the manufacturing and maintenance evolutions carried on at Respondent’s workplace.These enclosures are designed specifically for the type of machine used by Respondent andwith appropriate venting are fully compatible with all activities carried on atRespondent’s workplace. (Tr. 907, 909, 912, 1116, 1140, Exhibit C-23). Indeed,Respondent’s own acoustical expert admitted that he had recommended acoustical enclosuresas one means of reducing noise levels to less than 10 decibels at another facility having54 Davenport screw machines (Tr. 4587, 44489, 4592, 4593). Respondent’s expert witnessfurther testified that a well-designed acoustical enclosure would reduce noise levels byat least 20 decibels (Tr. 4575), and when enclosures were correctly used noise levels inDepartment 75 would be below 90 dBA (Tr. 4436).As mentioned above, we do not find any reliance inthe testimony of Mr. Prem Rai, who indicated that enclosures would have to be opened forapproximately 16 minutes per day, thus degrading their use subjecting employees toexposure levels of 105 decibels for 32 minutes per day (Tr. 3641, 3642, 4505, 4506, 4574,4618-4620). This testimony was not consistent with the testimony of the employees whoindicated that enclosures would be opened while the machine was running, once every 20minutes for approximately 15 seconds to check parts (Tr. 4719-4626), and once or twice perhour for two or three seconds to make a tool adjustment (Tr. 4702). The testimony of theemployees, which I find credible, indicated that the total amount of time for which theenclosures would have to be open to check parts or make tool adjustment would be less than16 minutes per day for both machines (Tr. 4719-4725). The conclusions of Respondent’sengineering expert that with the use of the enclosures employees would be exposed toexcessive noise levels for 38 minutes per day is not found credible since it was based oninaccurate or biased data (Tr. 4563).The overwhelming credible evidence established thatnoise enclosures are a feasible engineering control available for Respondent’s screwmachines in Department 75. It is not difficult reaching this conclusion since Respondenthas had experience with enclosing with enclosing screw machines in its Johnson City,Tennessee plant, wherein the enclosure of 14 machines had reduced noise levels to 92decibels (Tr. 1775-1777). Finally, new Davenport screw machines were purchased, or plannedfor purchase, with acoustical enclosures (Tr. 346, 347, 1983, 1984, C-78 p. 85). Whencarefully viewing the record, it would be extremely difficult to say acoustical noiseenclosures for screw machines in Respondent’s workplace were not technologically feasible.We do not find the evidence submitted by theRespondent, at all persuasive that there would be additional costs associated withenclosing the machines. We find that acoustical enclosures impose no difficulty oradditional cost of labor to employees who on the machines, and that the enclosures requirelittle maintenance. We believe current estimated cost of $5,000 per enclosure, plus aninstallation cost of between $1,200-1,400 per machine to be an economically feasible andcost effective outlay of capital to achieve compliance with the Noise Standard and Act(Tr. 1822, 1861, 1863, 1864). Significant noise reduction will be obtained and asignificant number of employees will benefit from the lowered noise levels. It is clearthat the financial burden to Respondent, when compared with the abatement of the healthhazards to the employees as earlier described, makes these costs reasonable and theimposition of the engineering controls required under the Act and the Noise Standard.Department 2 Department 2 contains approximately 70 presses, ofwhich 41 are secondary presses and 25 are automatic (Tr. 2616, 2824). Approximately 49employees are employed in this department as operators and setters (Tr. 2617). Anautomatic press operator’s duties include monitoring the transportation of materials forthe press, clearing parts from the press, and stocking the press with new materials (Tr.2618). A secondary press operator’s duties include loading the part into press, activatingthe press and ensuring that the part clears the die area (Tr. 2619). Also employed in thisDepartment are die setters and other maintenance employees. Department 2 operates twoshifts. Each employee works five days per week, approximately five to eight employees workon the weekend (Tr. 2086). The parts produced in Department 2 are removed from the pressby either a blowoff mechanism, a mechanical ejection method, or in some instances the partdrops out of the bottom of the die (Tr. 2084).The Secretary’s expert determined that the greatestsource of noise in Department 2 was the air ejection system used to remove and transportparts from the dies (Exhibit C-23). This fact was known to Stewart Warner (Exhibit C-55).Respondent, in August of 1973 and October of 1979, performed studies which identified jetairblasts as the major source of excessive sound levels (Exhibits C-49, C-55). TheSecretary’s expert concluded that control of the air blasts could reduce employee exposureby at least 5 dBA at cost of $25 to $40 per air nozzle (Tr. 763, 765). To demonstrate thecapability of noise suppression that could be achieved through use of air mufflers, theexpert had performed several experiments wherein he insolated noise occurring from the jetairblasts; such experiments revealed that noise levels could drop from 101.5 dBA to 93.8dBA (Tr. 753, 754). The costs for controlling air noise appears extremely reasonable inview of the results which could be obtained in noise reduction, and the number ofemployees who would benefit therefrom.The air ejection system created noise in two distinctmanners. The air ejection system was continually on during the stamping process. Noise wasgenerated from the airjet, and from the air hitting the die on closing. The noiseemanating from these sources could be controlled through use of a valving method allowingthe air blast to be only when the part in the machine was ready to expelled. When themachine was cycling the air valve would discontinue the flow of air, thus eliminatingsignificant amounts of noise.A second method of noise control dealing with the airejection system involved the use of multiple air ejection nozzles to be substituted forone single nozzle for removal and transfer of materials from the die to the to the partbin (Tr. 762, Exhibit C-23).The inclusion of air ejector mufflers was also foundto be a significant noise control device. Respondent’s own supervisory employees and otherwitnesses, who operated the presses recognized that the most efficient means of air noisereduction in Department 2 would be through the use of mufflers on the air ejector system(Tr. 2621, Exhibits C-78, p. 60, C-67, C-12, p.3). It was estimated that installation ofsuch mufflers could provide greater air thrust requiring lower air pressure in the system.This could result in 76 percent less air consumption with a significant energy costsavings (Exhibit C-11, p. 6).Air noise problems could be eliminated with the useof air mufflers, the valving of continuously on air, and the use of a multiple airejection system. Offsetting the cost of these controls is the fact that significant energyused in the current air ejection system could be reduced through the use of noise controlsthat require less air pressure energy. This would result in significant energy savings tothe Respondent. We find that the control of air noise, as above described, to be afeasible engineering control with advantageous economic overtones justifying its use. Itis clear the benefits to employees by significantly lowered noise levels, through thesenoise controls methods, well justify their reasonable costs and are found to be requiredof Respondent under the Noise Standard.An alternative method of noise control recommended bythe Secretary’s expert was the use of a mechanical ejection system (Tr. 760, ExhibitC-23). A mechanical ejection system would be so designed that as the die in the pressseparated a series of linkages which serve to automatically remove and expel the part fromthe die without resort to a noisy air ejection system (Tr. 765). While the mechanicalejector system recommended by the Secretary may be a possible technologically feasiblecontrol, we find that the Secretary did not establish this fact by a preponderance ofevidence. The proof supplied by the Secretary on this point amounted to nothing more thanthe general recommendations of its expert, providing no backup information demonstratingthe feasibility, workability or cost of this recommended control.The Secretary’s expert’s general conclusions are notsufficient to adequately carry the burden of proof necessary in on the issue of themechanical ejector’s technical feasibility. Indeed, the Secretary’s expert was totallyunaware of the size, shape weight, number of dies, finish requirements or tolerancesneeded to adequately demonstrate that mechanical ejectors would be economically ortechnically feasible for installation (Tr. 1104, 1105). This information was absolutelyessential to such a determination (Tr. 4423, 4424). Accordingly, this recommendation isnot found to be feasible under the proofs submitted.The last method of noise control recommended bySecretary’s expert dealt with the partial and full enclosures of the punch presses (Tr.1107, Exhibit R-4, Tr. 950, 951). It was conceded, however, that the recommended use offull and partial enclosures was not, with certainty, the most cost effective method ofreducing employee exposure to noise (Tr. 951, 952). Additionally, this record is absentany evidence of a study of work routines, employee operations, or machine operationsnecessary to establish or demonstrate that enclosures were feasible and were compatiblewith the work processes and employee operations.The Respondent’s expert had concluded that a fullenclosure for a manual press was not technologically feasible (Tr. 4426). Throughout hisprofessional career he had never seen a manual press with a full enclosure; this includedvisits to at least 250 plants (Tr. 4426). I find Respondent’s expert’s opinions andobservations, that a full enclosure for a manual press Is not feasible, persuasive andreliable (Tr. 4426). With respect to full enclosures for automatic machines, Respondent’sexpert indicated that such a recommendation might be considered on a machine by machinebasis, but that there was insufficient information developed to pursue any knowledgeabledecision (Tr. 4428). Respondent’s expert found the same true with respect to partialenclosures, indicating that a determination of feasibility required much more Informationthan presently was available in the engineering report of the Secretary’s acousticalengineer expert together with his testimony (Tr. 4429, 4430). Again we agree withRespondent’s expert and accept these conclusions as controlling herein.We can only conclude that while we do not findpartial or full enclosures for automatic presses infeasible. there is insufficientevidence in this record to indicate that such controls are feasible, and as such we findthat the Secretary has not carried his burden in demonstrating, through a preponderance ofevidence, the feasibility of these proposed noise controls. Accordingly, such controls atthis point would not be imposed upon the Respondent.Department 6The manufacturing equipment located in Department 6consists of 28 screw machines, of which there are three different makes (Tr. 2199). As inDepartment 75, operators would run two machines during an eight-hour day (Tr. 2199). Theautomatic screw machine operator would set up and operate the machines, performing alltasks necessary for their efficient operation (Exhibit C-15). Basically, the machineslocated in Department 6 operated generally the same as the Davenport machines inDepartment 75 (Tr. 2200, 2201, 2203). As with the screw machines in Department 75enclosures were found to be an appropriate noise control device. The enclosures forDepartment 6’s screw machine were off-the-shelf items representing current technology. Theenclosures were designed to be totally compatible with the manufacturing maintenanceprocesses of the screw machines. The Secretary’s expert calculated the cost of enclosuresas between $6,000-8,000 piece (Tr. 779). The lower cost would be indicative of anenclosure bought with the new machine while the $8,000 figure represented the price for aretrofit enclosure purchased for a machine currently at the plant (Tr. 779). As with theDavenport machine, the manufacturer of the Acme-Gridly machine, a type used Department 6,specifically made screw machine acoustical enclosures at cost ranging from $4,150- $5,600(Exhibit C-18, p. 7). Noise reductions of between 12-18 decibels were available with thistype enclosure (Exhibit C-18, p. 8). Significantly, Industrial Sound Control, amanufacturer of screw machine acoustical enclosures, had produced noise enclosures rangingin cost from $2,500-$4,000. Such enclosures enabled customers to meet all OSHArequirements (Exhibit C-16, p. 15). The costs of enclosures appear reasonable whencompared with amount of noise reduction obtained and number of employees affected.In September 1979, the National Acme Company informedRespondent that total acoustical enclosures capable of reducing sound levels toapproximately 85 dBA were available for its Acme-Gridly machines (Exhibits C-70, R-22, pp.3, 6). While the Respondent indicated that it would not be feasible to place noiseenclosures on these machines since they would be retired soon, this argument is rejectedsince there was no indication of the length of the useful life of the machines and howlong Respondent intended to use them (Tr. 2778, 2779). It appeared that these machinesstill could be used for an indefinite period of time (Tr. 3602). Moreover, we found thatRespondent made no representations that any machines would be retired, or that newmachines were on order, or that there were plans to order machines (Tr. 3602, 3603, 3064).We find the Secretary’s expert quite persuasive withrespect to screw machine acoustical enclosure as a feasible engineering control.Furthermore, it is clear from the evidence that noise enclosures are a standard state ofthe art engineering noise control fully compatible with the screw machine’s operation andmanufacturing process. As earlier mentioned, we do not accept the calculations orconclusions of witness Mr. Rai concerning the nonfeasibility of these controls. Weparticularly find this evidence unreliable. In those instances where Respondent’sacoustical engineering expert’s conclusions were predicted on Mr. Rai’s study, we cannotfind the same degree of persuasiveness we have found with some of his other opinions.We find the recommended noise enclosures for thosescrew machines that have a useful life of at least three years from the date hereof to bea technically and economically feasible control whose benefits to employees health requirethat Respondent obtain and install same for Department 6.The Secretary’s expert also proposed for Department 6the use of acoustical tile of baffling for the walls and ceilings (Tr. 774). With respectto baffling, this is a commercially available device in the recommended size of 2 foot by4 foot panels, ? inch in thickness, and having a plastic coating designed to resist oiland other air suspended contaminants. The Secretary’s expert estimated the installed costof the baffling at S1.00 to $1.50 per square foot (Tr. 775, 1111, Exhibit C-23, p. 3). Theexpert estimated that the noise reduction that could be achieved with this applicationwould range between 2 and 5 dBA, the least noise reduction, 2 dBA, occurring between twooperating screw machines that were not equipped with acoustical enclosures (Exhibit C-23,p. 3, Tr. 775, 776).The record shows that the Secretary’s expert spend aminimum amount of time in Department 6 developing his conclusion that baffles and ceilingtiles were an appropriate engineering noise control. We find this witness not veryfamiliar with the physical condition of Department 6. He did not know the specificsconcerning the existing fire and sprinkling system located near the ceilings, the locationof the lighting and electrical systems. nor was he familiar with other piping found in theDepartment. The various piping systems did have a significant impact upon the feasibilityof the acoustical baffling recommendation.Respondent’s acoustical engineering expert, on theother hand, performed an in-depth comprehensive sound measuring analysis of the workareaof Department 6 (Tr. 4508- 4523). His skillful review of the acoustics of Department 6revealed to him that most operators of equipment would receive no more than 1 to 2decibels of noise reduction. Additionally, he found that the fire extinguishing piping, aswell as the electrical and lighting piping and fixtures would significantly interfere withthe placement of noise baffles (Tr. 4649, 4537-4539). He further found that ceiling tilewould not be as effective a noise suppressant as noise baffles (Tr. 4534). Respondent’sexpert estimated that the installed cost of baffling would be approximately $2.50 persquare foot, for a total cost of $180,000 (Tr. 4669, 4670).We are inclined to find the testimony of Respondent’sexpert more persuasive on the point of acoustical baffles and titles than the Secretary’sexpert. Respondent’s expert conducted a much more in-depth analysis of the acoustics ofDepartment 6, and thus we find his conclusions better placed. We find that, at this giventime, without the installation of noise enclosures for the screw machines the use ofceiling tile or baffles is not a feasible engineering control. We reach this conclusionfor two reasons. First, looking to the economic aspect of proposed noise control we findthe expenditure of approximately $180,000 to obtain only one or two decibels of noisereduction not a reasonable economic trade off since the benefit in noise reductionexperienced by the employees does not balance reasonably with the cost incurred. This isevidenced even more so with the use of ceiling tile since it produces even less noisesuppressant. Secondly, we find that in the case of baffles, as amatter of fact, their installation would be compatible with the fire sprinkler system orthe electrical lighting and piping in the workplace. To install the baffling below thefire sprinkling system or the lighting system would degrade the fire fighting system andpresent a serious bumping hazard to employees, in addition to interfering with movement ofmaterial and equipment through the workplace. The suggested use of sound absorption foamon the walls and ceilings, we find to be both a health and fire hazard (Tr. 4532, 1115).Lastly, open airjets in Department 6 were found to bea significant noise source. The installation of valving or mufflers on this noise sourcewas not disputed in these proceedings, and apparently was something that amounted to nomore than required maintenance work. Both experts were in agreement that the noise sourcewas something that was easily controlled with appropriate mufflers, valving or maintenance(Tr. 4673).XI. CONCLUSIONS AND SUMMARYWe find the evidence clear, convincing and reliablethat excessive noise levels, as reported by the compliance officer, existed in theworkplace. We further find that these excessive noise levels had a significantly adverseeffect on the hearing of those employees exposed. We find Circuit case law mandating thatin weighing costs against benefits the benefits to employees, in the reduction of noiselevels through engineering controls, must weight heavier in the balance than the costs.Accordingly, under the \”cost-benefit\” theory, feasible engineering noisecontrols was the mandated method of abatement of the noise hazard in Respondent’sworkplace.In the instant case, we find that the engineeringcontrols, found technologically feasible, also came with a favorable economic feasibilitycomponent (i.e., a reasonable balance between the cost of the controls, the amount ofnoise reduction obtained, and the number of employees affected) and that they provided toemployees health benefits which could not otherwise inure to them through the use ofpersonal protective equipment, a means of abatement far less costly in terms of dollarsand cents.The evidence established that employees in theworkplace were not faring satisfactorily with the use of personal protective equipment,and that hearing loss or trends towards hearing loss, which employees experienced, couldbe arrested with the imposition upon the employer of the obligation to install the morecostly engineering control methods.The Secretary had determined that certain engineeringcontrols were technologically feasible and we agree in part with that determination. Inthose instances where we agree with the Secretary’s conclusions, we deal with standardstate of the art, uncomplicated but effective, noise controls. This case does not dealwith exotic engineering devices commanding significantly expensive materials andengineering services. The noise controls found feasible in this case are standardoff-the-shelf items having current competitive market prices.We find that acoustical noise enclosures for screwmachines in Department 75 and Department 6 will assure significant reductions of noiselevels to and below the levels mandated by the Noise Standard. These controls, when viewedfrom an economic standpoint, present a well balanced expenditure of funds when comparingcosts and noise abatement properties. Indeed, the Respondent had programmed for thepurchase and installation of these controls, and in fact had some in place, demonstratingtheir effectiveness. Both parties’ experts in this case concurred that acousticalenclosures for screw machines were feasible engineering controls for this Respondent (wheneach was fully and realistically aware of the operations carried on by the operators ofthe machines). Accordingly, we find it to be the obligation of the employer to utilize andinstall acoustical noise enclosures on all its screw machines, that have a useful life ofthree years from the date hereof, in Departments 6 and 75.We find that the control of air noise, a significantnoise source in Department 2, a realistic and cost effective noise abatement method. Thecontinuous flow of high pressure of air, as a means of ejecting parts from punch pressdies and sending them into bins, created high levels of noise. The installation ofwaiving, which would control the flow of air at the precise time of injecting the part.the use of mufflers, and the use of multiple jets, represent a we’ll recognized state ofthe art noise control. The cost for such valving and mufflers, again. is not expensivesince they are off-the-shelf items competitively priced. Additionally, their use wouldrepresent significant savings to the employer by reason of the conservation of energy usedfor high pressure air.We find that the Secretary did not adequatelypreponderate on the issue of technological feasibility of enclosures, partial enclosures,ceiling tile and acoustical panels. The Secretary failed to provide adequate technical andeconomic data to make a case for their use. The same is true with respect to mechanicalejectors; the record was totally absent sufficient technical and cost information or datato indicate that this control was indeed a feasible engineering noise control having areasonable balance in terms of noise suppression and costs.X. ABATEMENT DATESIn terms of abatement time, the evidence establishedthat all the screw machines can be enclosed within an 18 month period. Acousticalenclosures on screw machines are readily available from the manufacturers of the screwmachines as well as other sources; installation time would be consistent with the 18 monthabatement period. Installation of all controls associated with noise sources from the airejection systems can be performed within six months since components needed are readilyavailable from commercial sources and easily obtained. Installation time is nominal.XI. NATURE OF VIOLATIONThe condition alleged in the Citation is one thatdates back a significant number of years. The Respondent had been cited for the identicalviolation in 1977. That Citation had been affirmed; indeed the Respondent had on severaloccasions sought abatement date modifications. The current citation cites the sameviolation, at the same location, as the earlier 1977 Citation, and accordingly will beaffirmed as a Repeat Citation, (see pp. 9 and 10, supra).XII. PENALTYThe evidence has demonstrated that the hazardassociated with noise exposure is significant and serious (pp. 33 and 34, supra).We find employees not doing well in the workplace where excessive noise levels exist (pp.38 and 39, supra). We find that this condition has existed for a significant numberof years, and that the condition was well known by Respondent’s supervision.The evidence established that Respondent’s program ofpersonal protective equipment was the basic means of protection for employees from thehazards associated with noise levels. Respondent’s monitoring of the employees’ success inobtaining realistic protection through use of personal protective equipment was found tobe indifferent bordering on nonexistence. There essentially was no monitoring of thehealth of its employees (pp. 42 to 44, supra). Respondent’s monitoring of employeeshearing through use of audiometric examinations was a sham designed only to showostensible compliance with the Act, and not at all used to monitor whether its program ofpersonal protective equipment program was working or was harmful to those employees whorelied upon it for protection from the excessive noise levels.We find that Respondent’s noncompliance with theNoise Standard represents a serious departure from its obligation to provide a safe andhealthful workplace for its employees. as required under the Act. Accordingly, we find theimposition of a penalty in the amount of $1,000 to be appropriate after considering thosefactors in Section 17(j) of the Act.ORDER Based upon the foregoing Findings of Fact andConclusions of Law, and for those reasons set out in my Decision and Order, and for goodcause shown, it is ORDERED that1. Repeat Citation Number 1 is hereby AFFIRMED, withabatement requirements and dates as setforth in my Decision and Order.2. A penalty of $1,000 is ASSESSED.Edward A. Bobrick Judge, OSHRCDated: December 31, 1984Chicago, IllinoisFOOTNOTES: [[1\/]] Jurisdiction of the parties and the subject matter herein is confirmed upon theOccupational Safety and Health Review Commission by Section 10(c) of the Act.[[2\/]] ? 1910.95 Occupational Noise Exposure.(a) Protection against the effects of noise exposure shall be provided when the soundlevels exceed those shown in Table C-16 when measured on the A scale of a standard soundlevel meter at slow response. . .(b)(1) When employees are subjected to sound [levels] exceeding those listed in TableG-16, feasible administrative or engineering controls shall be utilized. If such controlsfail to reduce sound levels within the levels of Table G-16, personal protective equipmentshall be provided and used to reduce sound levels within the levels of the table.(2) If the variations in noise level involve maxima at intervals of 1 second or less,it is to be considered continuous.Table G-16 — Permissible Noise Exposures [[1\/]] Duration per day, hours Sound level dBA slow response 8 90 6 92 4 95 3 97 2 100 1? 102 1 105 ? 110 ? or less 115 [[3\/]] When the daily noise exposure is composed oftwo or more periods of noise exposure of different levels, their combined effect should beconsidered, rather than the individual effect of each. If the sum of the followingfractions: C1\/T1 + C2\/T2 [+. . .+] Cn\/Tnexceeds unity, then the mixed exposure should be considered to excess the limit value. Cnindicates the total time of exposure at a specified noise level and Tnindicates the total time of exposure permitted at that level.Exposure to impulsive or impact noise should notexceed 140 dB peak sound pressure level.[[4\/]] ? 1910.95 Occupational noise exposure.(a) Protection against the effects of noise exposure shall be provided when the soundlevels exceed those shown in Table G-16 when measured on the A scale of a standard soundlevel meter at slow response. . .[[5\/]] The A added to dB (decibel) indicates that thedecibel of sound was measured on the A scale of a standard sound meter at slow response,as required in 29 C.F.R. 1910.95(a). Additionally, decibels the basic unit of measurementof sound levels, are recorded on sound level meters according to several scales. On the Ascale, the meter is more sensitive to higher pitched tones than those of a lower pitch,just as the human ear is. The \”slow\” response is another setting of theinstrument by which it averages out high level noises of brief duration (such ashammering), rather than responding to the individual impact noises. See U.S. Dep’t ofLabor, Guidelines to the Department of Labor’s Occupational and Noise Standards p. 3(1971). Marshal v. West Point Pepperil, 588 F.2d 979 at 982 n. 5 (5th Cir. 1979).[[6\/]] \”Impulse [or impact] noise shallbe measured in the peak mode of a precision (Type 1) SLM [as opposed to the non-precisionType 2 instrument used by OSHA in this case] set to flat or unweighted response. Whereflat response is not available, the C weighted network is used.\”[[7\/]] A term meaning a rate at which noise intensityor strength doubles with every 5 dBA increase in noise levels.[[8\/]] The Secretary’s expert Mr. George Kampermanwas queried as to certain statements made by him at an acoustical engineering conferencein Canada, to the effect that dosimeters do read higher than the actual sound levels (Tr.1152, 1168-1170). While at times the testimony given on this subject was confusing. I findthat Mr. Kamperman adequately explained the rationale behind these statements, as well ashis later statements that the dosimeter would indeed give accurate readings by reason ofthe scientific formula contained in Table G-16 (Tr. 1152-1154). In response to questionsby the Judge to clear up the apparent conflict in his testimony, Mr. Kamperman explainedthat the dosimeter would take inconsistencies of sound into account when it automaticallycalculated the G-16 formula on sound level measurements over periods of time (Tr. 1154),and that the sound level meter component of the dosimeter would read noise accurately, andin particular it would read and record accurately the type of noise found in Respondent’sworkplace (Tr. 747, 1096, 1152, 1153, 1154, 1156, 1157, 1174, 1182, 1183).[[9\/]] Be it as it may, this ruling seemedinconsistent with the holdings that financial burdensomeness was not a defense foremployers in occupational safety and health matters. Industrial Union Department,AFL-CIO, et al. v Hodgson, 499 F.2d 467 (D.C. Cir. 1974); American Federation ofLabor, etc. v. Brennan, 530 F.2d 109, at 122, 123 (C.A. 3, 1975).[[10\/]] As will be discussed below, a program ofpersonal protection equipment (earplugs) will not provide noise hazard protection toemployees as advertised, expected or generally understood, and definitely not the sameprotection that is associated with engineering noise controls (pp. 35 to 39 infra).[[11\/]] The same is true with respect to the holdingof the 5th, 6th, and 9th Circuit.[[12\/]] We believe the language of the SeventhCircuit is well worth repeating as it plays a decisive role in bringing understanding tothe legitimate priorities within the cost-benefit theory in terms of employee protections;and in that it fits precisely into these proceedings by reason of the facts of this case.The court held,\”the benefit to employees from implementation of engineering noisecontrols will be substantial. The use of personal protective equipment has not preventedhearing loss and hearing difficulties among these employees. Implementation of engineeringcontrols will bring all 80 employees within permissible noise exposure levels\”(at 989). (Emphasis added)[[13\/]] \”…Moreover, earplugs and muffs havesignificant limitations. They are subject to employee resistance because they areuncomfortable. Not all employees can benefit from them. The Secretary put on experttestimony that noise reduction achieved by earplugs in actual use is less than half theattenuation achieved in laboratory tests. This has been recently borne out by a NIOSH-CDCstudy to the same effect. Hearing Protectors Field Measurement, Morbidity and MortalityWeekly Report, 607 (Nov. 19, 1982).[[14\/]] While not covered in this record, earplugsworn throughout the workday tend to naturally work free of the ear canal through normalmandibular movements in talking or chewing. This degrades the seal between the earplug andear canal allowing noise to enter the inner ear.”