“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16118 SUN SHIP, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 17, 1982DECISIONBefore ROWLAND, Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? Theoccupational noise standard at 29 C.F.R. ? 1910.95(b)(1)[1] requires that ?feasible?administrative or engineering controls be implemented to reduce excessive noiselevels. This case involves the meaning of the word ?feasible? as it is used inthe standard. In Continental Can Co.,76 OSAHRC 109\/A2, 4 BNA OSHC 1541, 1976?77 CCH OSHD ?21,009 (No. 3973, 1976), appeal withdrawn, No. 76?3229 (9th Cir.Apr. 26, 1977) (?Continental Can?),the Commission first interpreted ?feasible? in the noise standard. A dividedCommission held that the word must be interpreted ?to effectuate theCongressional purposes underlying the Act,?[2] 4 BNA OSHC at 1546,1976?77 CCH OSHD at p. 25,255, and reasoned that this means a cost-benefitanalysis is required. The Commission stated: ?In determining whether controlsare economically feasible, all relevant cost and benefit factors must beweighed.? 4 BNA OSHC at 1547, 1976?77 CCH OSHD at p. 25,256.??????????? Thisholding of Continental Can hasremained Commission precedent. SamsonPaper Bag Co., 80 OSAHRC 60\/A2, 8 BNA OSHC 1515, 1980 CCH OSHD ?24,555 (No.76?222, 1980). However, the Supreme Court has since interpreted the word?feasible? in section 6(b)(5)[3]of the Act and held that?feasible? does not require, and indeed precludes, a weighing of costs andbenefits. American Textile ManufacturersInstitute, Inc. v. Donovan, 101 S.Ct. 2478 (1981) ( ?ATMI?). The Court held that ?feasible? means ?capable of beingdone? or ?achievable? and that Congress intended employee health to outweigh?all other considerations save those making the attainment of this ?benefit?unachievable.? 101 S.Ct. at 2490.??????????? Inthis case, we consider the impact of the Supreme Court?s decision in ATMI on the Commission?s interpretationof the noise standard in Continental Can.For the following reasons, we hold that the interpretation in Continental Can was erroneous.I??????????? SunShip, Inc. operates a shipyard in Chester, Pennsylvania. In September, 1975, aUnited States Department of Labor compliance officer inspected the plant andmeasured the noise to which one blacksmith was exposed during his work shift.Because the compliance officer found excessive noise exposure, Sun Shipreceived a citation alleging noncompliance with the noise standard, section1910.95(b)(1).??????????? Atthe hearing, the Secretary proposed engineering controls to reduce theexcessive noise. An expert, a consulting engineer with experience in noisecontrol, testified about the controls and the costs involved in implementingthem. He gave a figure representing the cost of fabricating the controls but hedid not quantify any indirect costs, such as any loss of productivity,incidental to using the controls.??????????? Atthe close of the Secretary?s case, Sun Ship moved to dismiss the charges on thebasis that the Secretary?s case was insufficient. Sun Ship argued that theSecretary failed to meet his burden of proof under Continental Can, supra, because he failed to demonstrate indirectcosts. Administrative Law Judge William E. Brennan, before whom the case wastried, granted Sun Ship?s motion to dismiss. He concluded that the Secretaryfailed to meet the burden of proof imposed by Continental Can since he did not establish the indirect costs ofthe engineering controls.??????????? TheSecretary filed a petition for discretionary review which Commissioner Clearygranted.[4] The Commissionsubsequently issued the following briefing order:(1) What impact, if any, does the UnitedStates Supreme Court decision in AmericanTextile Manufacturers Institute, Inc. v. Donovan . . . have on theCommission interpretation of 29 C.F.R. ? 1910.95(b)(1) set forth in . . . Continental Can Co. . . .(2) What impact, if any, does the decisionin Carnation Co. v. Secretary of Labor,641 F.2d 801 (9th Cir. 1981), have on whether the Secretary established a primafacie case that Respondent violated 29 C.F.R. ? 1910.95(b)(1)?[5]???????????? SunShip argues that ATMI does not affectContinental Can because ATMI involved a section 6(b)(5)[6] rather than a section 6(a)[7] standard, ATMI involved alife-threatening hazard, and under ATMI cost-benefit may be used to determinethe feasible abatement to reach a given exposure level. The Secretary arguesthat ATMI requires Continental Can to be overruled. In theSecretary?s view, ?feasible? must be given the same meaning in the noisestandard as in section 6(b)(5). Also, the Act does not require a cost-benefitanalysis for a standard adopted under section 6(a).II??????????? In ATMI the Supreme Court interpreted thelanguage of section 6(b)(5) which states:The Secretary, in promulgating standardsdealing with toxic materials or harmful physical agents under this subsection,shall set the standard which most adequately assures, to the extent feasible,on the basis of the best available evidence, that no employee will suffer materialimpairment of health or functional capacity. . . .???????????? TheCourt was confronted with an industry challenge to a standard regulatingemployee exposure to cotton dust. The standard was adopted by the Secretaryunder section 6(b)(5) and the industry parties contended that the Act requiresthe Secretary to balance costs and benefits when promulgating a standard underthis section.??????????? Focusingon the phrase ?to the extent feasible,? the Court held that ?feasible? means?capable of being done? or ?achievable.? 101 S.Ct. at 2490, 2494. The Courtlooked to the ?plain meaning? of the word?the common definition. The Court alsoexamined other statutes and found that ?[w]hen Congress has intended that anagency engage in cost-benefit analysis, it has clearly indicated such intent onthe face of the statute.? 101 S.Ct. at 2491. From this, the Court concludedthat, in view of the common definition of ?feasible,? the word as used byCongress in section 6(b)(5) cannot be understood to impose a requirement forcost-benefit analysis. In addition, the Court reviewed the legislative historyof the Act and concluded:The legislative history of the Act, whileconcededly not crystal clear, provides general support for . . . [theconclusion that ?feasible? does not require cost-benefit analysis]. Thecongressional reports and debates certainly confirm that Congress meant?feasible? and nothing else in using that term. Congress was concerned that theAct might be thought to require achievement of absolute safety, an impossible standard,and therefore insisted that health and safety goals be capable of economic andtechnological accomplishment. Perhaps most telling is the absence of anyindication whatsoever that Congress intended OSHA to conduct its owncost-benefit analysis before promulgating a toxic material or harmful physicalagent standard. The legislative history demonstrates conclusively that Congresswas fully aware that the Act would impose real and substantial costs ofcompliance on industry, and believed that such costs were part of the cost ofdoing business.?101 S.Ct. at 2493. The Court specifically concludedfrom its examination of the congressional discussions of general costs andgeneral employee benefits:Nowhere is there any indication thatCongress contemplated a different balancing by OSHA of the benefits of workerhealth and safety against the costs of achieving them. Indeed Congress thoughtthat the financial costs of healthand safety problems in the workplace were as large or larger than the financial costs of eliminating theseproblems. In its statement of findings and declaration of purpose encompassedin the Act itself, Congress announced that ?personal injuries and illnessesarising out of work situations impose a substantial burden upon, and are a hindranceto, interstate commerce in terms of lost production, wage loss, medicalexpenses, and disability compensation payments.? 29 U.S.C. ? 651(a).?101 S.Ct. at 2496?2497 (emphasis by the Court).??????????? Insum, in ATMI the Supreme Court heldthat, because neither the Act nor its legislative history reveals that Congressintended to require a cost-benefit analysis as a part of rulemaking undersection 6(b)(5), the word ?feasible? in that section must be given its ordinarymeaning?that which is ?achievable.? Significantly, the Court determined thatCongress, in enacting the Act, believed that the costs of employee injuries andillnesses were at least as great as, and likely greater than, the costs ofeliminating injuries and illnesses and that, therefore, the benefits of reducedinjuries and illnesses generally justified the costs that would be incurred indoing so.??????????? TheCourt?s interpretation of ?feasible? is limited, Sun Ship argues in this case,to standards promulgated under section 6(b)(5). Because the noise standard waspromulgated under section 6(a) of the Act, see note 7 supra, and neither Congress nor the Secretary ever considered thebalance of costs against benefits for this standard, Sun Ship argues thatcost-benefit analysis should be required to enforce the standard. Accordingly,Sun Ship urges that the Commission adhere to Continental Can.??????????? Wefind these arguments unpersuasive in light of the Court?s decision. Clearly,the Supreme Court decided only the meaning of section 6(b)(5) and not whethercost-benefit analysis might be required for standards promulgated under othersections. See 101 S.Ct. at 2490 n. 29 and 2493 n. 32. However, the SupremeCourt held that, because of the absence of any strong indication that Congressintended ?feasible? to have a special meaning, ?feasible? as used by Congressmust be given its ordinary meaning. The Court further held that, under itsordinary meaning of ?achievable,? ?feasible? cannot require cost-benefitanalysis. See 101 S.Ct. at 2490,2492. The Court thus decided that Congress did not intend to requirecost-benefit analysis by using the word ?feasible.? The identical question oflegislative intent is presented in interpreting the noise standard.??????????? Thepertinent language of the noise standard is: ?When employees are subjected tosound exceeding those listed . . ., feasible administrative or engineeringcontrols shall be utilized.? The Secretary adopted this language in the noisestandard because Congress directed that the Walsh-Healey standards, one ofwhich was the noise standard, be adopted as occupational safety and healthstandards under section 6(a). See note 7 supra.Accordingly, the Commission in ContinentalCan examined the Walsh-Healey Act and its history as well as the history ofthe noise standard to determine whether ?feasible? had any special meaning.However, there was no indication that the word was intended to have any meaningother than the common definition. In these circumstances, the Commissionconcluded, ?The standard must be interpreted to effectuate the Congressionalpurposes underlying the Act.? 4 BNA OSHC at 1546, 1976?77 CCH OSHD at p.25,255.??????????? Because?feasible? had no special meaning under the Walsh-Healey Act, it is appropriateto interpret it in accordance with the Congressional purpose underlying the OSHAct. But, as held by the Supreme Court inATMI, ?feasible? under the OSH Act means ?achievable? and does not requirecost-benefit analysis. Regulations are to be construed consistent with thestatutes under which they are promulgated. UnitedStates v. American Trucking Ass?ns, 310 U.S. 534, 542 (1940). Furthermore,unless a different intent is clearly evident the same statutory terms are to begiven the same meaning. Chugach Natives,Inc. v. Dayon Ltd., 588 F.2d 723 (9th Cir. 1979) and cases cited.Accordingly, regulatory language should be given the same meaning as the samelanguage appearing in the statute. SeeBaroid Div. of N.L. Industries, Inc. v. OSHRC, 660 F.2d 439, 447 (10th Cir.1981), and RMI Co. v. Secretary of Labor,594 F.2d 566 (6th Cir. 1979), where the statutory and regulatory uses of ?feasible?are viewed as synonymous.[8] Accordingly, we overruleContinental Can to the extent that it holds that ?feasible? in the noisestandard requires cost-benefit analysis.[9]??????????? TheSupreme Court did not, however, reject the idea that ?feasible? includeseconomic considerations. All parties in ATMI agreed that a standard would notbe feasible if its costs would be so high as to threaten the economic viabilityof an industry.[10]The Court did not disagree, expressing the view that inclusion of economicconsiderations ?is certainly consistent with the plain meaning of the word?feasible.? 101 S.Ct. at 2501 n. 55. In promulgating the standard in ATMI, the Secretary had estimated thecosts of compliance for the different sectors of the cotton industry affectedby the standard and evaluated their ability to absorb the costs. Because heconcluded that compliance with the standard would not threaten the ?long-termprofitability and competitiveness? of the various industrial sectors, theSecretary concluded that the standard was feasible. Id.??????????? Thus,?feasibility? under section 6(b)(5) includes consideration of whether the costof compliance with a standard will be so great as to threaten an industry?slong-term profitability and competitiveness. By analogy, considerations of costmust also enter into whether administrative or engineering controls are?feasible? under section 1910.95(b)(1).[11] Generally, administrativeor engineering controls would be economically infeasible if their cost wouldseriously jeopardize the cited employer?s long-term financial profitability andcompetitiveness.[12]There may also, as the Secretary points out, be situations in which aparticular employer is lagging so far behind its industry in protecting thehealth and safety of its employees that it cannot afford to implement controlsthat are generally feasible throughout the industry. See Industrial Union Department, AFL?CIO v. Hodgson, 499 F.2d 467,478 (D.C. Cir. 1974). In these situations, controls may be feasible even thoughthey are beyond the financial capability of the cited employer. Thus, as partof his proof of feasibility, the Secretary must show either that the cost ofengineering and administrative controls will not threaten the cited employer?slong-term profitability and competitiveness or that the employer?s inability toafford the cost of controls results from the employer lagging behind itsindustry in providing safety and health protection for employees.[13]III??????????? Inthis case, the Secretary?s charges under the noise standard were dismissed atthe close of the Secretary?s evidence. The question is whether the Secretarymade a prima facie case of violation under our interpretation of the noisestandard. The evidence presented during the Secretary?s case-in-chief is asfollows.??????????? OnSeptember 30, 1975, a blacksmith was performing grinding and blacksmith workfor shipfitting and fabrication in a building in Sun Ship?s shipyard. Using adosimeter and a sound level meter, the compliance officer measured the noise towhich the blacksmith was exposed during his shift.??????????? Duringthe morning half of his shift, the blacksmith worked in the shipfitting end ofthe building grinding steel hatch opening rings. He used a Stanley V?50pneumatic hand-held grinder which was not equipped with a muffler. A metalworkbench was used to hold each ring as it was ground. The ring was not clampedto the workbench. Also, there were eight or nine other employees performingwelding, grinding, and shipfitting work in the vicinity of the blacksmith.??????????? Withthe sound level meter, the compliance officer measured the noise levels. Shefound that they ranged from 101 to 108 dBA while the blacksmith was using thegrinder in contact with a hatch opening ring and the other employees wereworking in the background. When there was no background noise but theblacksmith was using the grinder on a ring, the noise levels were 102 to 103dBA. The background noise alone was 90 to 92 dBA. The noise levels were below90 dBA when no employees were working.??????????? Thecompliance officer timed the blacksmith?s grinding activities. She watched theemployee grinding several of the rings and, using a stop watch, she timed theintervals during which he held the grinder in contact with the ring. She foundthat the intervals added up to about five minutes per ring, on the average.Since eleven rings were ground that morning, the compliance officer attributedone hour of the morning portion of the shift to grinder-to-metal work.??????????? Betweenthe intervals of grinder-to-metal work, the blacksmith was doing such things asadjusting the ring on the workbench or adjusting the grinder. During thesetimes, he was exposed only to background noise and\/or noise from his grinderwhich may have been switched on. He was not holding the grinder in contact withanything, however. Because the blacksmith spent a total of about three hoursworking on grinding the eleven hatch opening rings but one of those hours couldbe attributed to grinder-to-metal work, the compliance officer attributed theremaining two hours to pre-grinding work involving exposure mainly tobackground noise. There remained approximately one hour during which theblacksmith was performing some unidentified activities not involving exposureto any of this noise. The compliance officer concluded that during this hourthe blacksmith?s noise exposure was below 90 dBA.??????????? Duringthe afternoon half of his shift, the blacksmith performed blacksmith work inthe fabrication end of the same building. With the sound level meter, thecompliance officer found that the noise level was generally 92 dBA. She alsofound that the blacksmith was exposed to this noise level for about 3.25 hours.??????????? Withthe information compiled about the various sound levels and time intervals, thecompliance officer was able to compute the blacksmith?s total noise exposure.The compliance officer?s data indicated that the blacksmith was exposed to thefollowing minimum noise levels for the following times: 102 dBA -1 hour (grinder-to-metal work?no background noise) 90 dBA -2 hours (background noise only) less than 90 dBA -1 hour (unidentified work) 92 dBA -3.25 hours (blacksmith work) \u00a0Table G?16, note 1 supra,gives the permissible exposure time for each of these noise levels. The footnoteto the table states that the combined effect of exposure to two or more periodsof noise exposure at different levels may be determined by computing the sum offractions Cn\/Tn where Cn is the total actual exposure time and Tn is thepermissible exposure time for the particular noise level. In this case, thefractions added up to 1.46.[14] Because the sum exceededunity (one), the compliance officer concluded that the blacksmith was exposedto excessive noise.??????????? Thecompliance officer also used a dosimeter to judge the blacksmith?s noiseexposure. The blacksmith wore the dosimeter while he was engaged in performingthe grinding and blacksmith work. The total readout was 168 percent ofpermissible noise exposure which showed exposure to excessive noise. Becauseboth the dosimeter readout and the computation based on the sound level metermeasurements revealed excessive noise exposure, the Secretary issued thecitation alleging noncompliance with the noise standard with respect to theblacksmith.??????????? Atthe hearing, the Secretary presented expert testimony proposing engineeringcontrols for the hatch opening ring grinding operation. The expert visited SunShip?s facility and tested the noise levels generated by a Stanley V?50pneumatic grinder which was being used to grind the metal substructure of aship. He found that the levels were generally 92 dBA when the grinder was incontact with the metal. When the grinder was not in contact, the levels wereabout 90 dBA. Any higher noise levels detected during grinder-to-metal work aregenerally attributable almost entirely to vibration of the work piece. Also,large metal objects such as this metal ship substructure produce littlesignificant vibration noise while being ground. The expert concluded from histests that the noise level produced by the grinder alone was about 92 dBA. Hetestified that the 102 dBA noise levels detected by the compliance officerwhile the blacksmith was grinding hatch opening rings but there was nobackground noise were attributable to two sources, the grinder itself and thehatch opening rings vibrating on the workbench. Therefore, the expertrecommended muffling the grinder and using a sound-dampening workbench.??????????? Theexpert testified that the primary source of the noise generated by the grinderis the exhaust air port, where the pressurized air exhausts after turning theturbine of the grinder. Accordingly, the expert proposed enclosing the exhaustair port and attaching a muffler. The expert testified that from Stanley, themanufacturer of the grinder, he learned that a muffled version of the grindercan be purchased. He also learned that, although Stanley does not produce aretrofit kit to muffle the older V?50 grinder, for $200 an employer canpurchase the muffling parts of the newer grinder and apply them to the oldertool. However, because Stanley does not produce the parts specifically adaptedto retrofit the older V?50, the Secretary?s expert designed a muffler for thegrinder. His design consisted of a housing enclosing the exhaust air port and ahose leading to a muffler. The expert estimated that the design cost would be$1500 and the fabrication cost would be $320, a total of $1820.[15] He also estimated, basedon his experience in muffling grinding tools, that a 3 dBA reduction would resultand as much as a 6 dBA reduction could be possible.??????????? Theexpert also recommended that the metal workbench be replaced with a wooden oneand that the workbench be equipped with clamps to hold the hatch opening ringssecurely to the workbench during grinding. The expert estimated that the costof materials and labor for this workbench would be about $460.IV??????????? TheSecretary?s evidence shows employee exposure to excessive noise. The principalquestion is whether the evidence shows there are feasible engineering controlsfor the excessive noise. According to the expert?s testimony, the muffler wouldresult in a 3 dBA reduction in the noise produced by the grinder alone, whichthe expert determined was approximately 92 dBA. Further, the elevation in noiselevels during grinder-to-metal work results from vibration noise. Accordingly,vibration noise accounts for approximately 10 dBA of the 102 dBA noise levelsdetected by the compliance officer while the blacksmith was using the grinderin contact with the hatch opening rings.[16] With a 3 dBA reduction ingrinder noise and most of the vibration noise eliminated,[17] the Secretary?s evidenceshows that the blacksmith?s exposure will be within permissible limits.[18]??????????? TheSecretary?s evidence also establishes that the cost of implementing thecontrols will be about $2,500. See note 15 supraand accompanying text. The judge dismissed the Secretary?s charges because theSecretary did not show the indirect costs, such as inefficiency or loss of productivity,that might result from implementation of the controls. We can infer, however,that such indirect costs would be negligible. Substitution of a woodenworkbench for a metal one should present no impediment to Sun Ship?s grindingprocess. Moreover, the fact that muffled grinders are available commerciallysuggests that grinders can be successfully muffled without a significantadverse effect on performance.??????????? TheSecretary?s evidence also establishes that Sun Ship has annual sales in excessof $100 million. In light of this, we infer that the $2,500 cost of thecontrols will not adversely affect Sun Ship?s long-term profitability andcompetitiveness. We therefore conclude that the Secretary has established aprima facie case. In making this conclusion, we have not taken into accountwhether abatement on a plant-wide basis will threaten Sun Ship?s long-termprofitability and competitiveness. See note 5 supra and accompanying text.However, we conclude that, to make a prima facie case, the Secretary is notrequired to show more than that the controls are economically feasible for thecited operation or location. As the Court of Appeals for the Ninth Circuitstated in Carnation Co. v. Secretary of Labor, supra, in rejecting theemployer?s argument that the Secretary was required to inspect the entire plantfor noise violations and issue a comprehensive citation:It would be a waste of government moneyand energy to compel the Secretary to prove the economic feasibility ofplant-wide controls where there is no suggestion by the violator that suchcontrols would be economically infeasible. . . . The matter would be entirelydifferent if a violator were able to show that the controls installed atdiscrete locations, while economically feasible, would not be economicallyfeasible were they installed throughout the plant. The latter case would beimpermissible because the Secretary could carry his burden and prove economicfeasibility under 29 C.F.R. ? 1910.95 by piecemeal proof in situations where hewould not be able to prove economic feasibility had he required the violator atthe outset to remedy all the violations in the plant.?641 F.2d at 803.??????????? Accordingly,we conclude that the Secretary has established a prima facie case of violationof the noise standard.[19] The judge?s decisiongranting Sun Ship?s motion to dismiss is therefore set aside and the case isremanded for further proceedings.[20] SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: DEC 17, 1982ROWLAND, Chairman, dissenting:??????????? Duringthe more than ten years that the noise standard has been in effect, thisCommission has been unable to interpret and apply it in a consistent,reasonable manner. This decision, which represents the Commission?s latestattempt to define the meaning of the term ?feasible,? is no exception. Relyingon a Supreme Court decision[21] that is not dispositiveof the issue at hand, the majority concludes that ?feasible? has the ?plainmeaning? of ?achievable,? and that the noise standard therefore requires employersto spend large sums of money to reduce noise levels regardless of whether suchexpenditures produce any commensurate benefits in employee safety or health.Moreover, the majority?s interpretation preempts a rulemaking decision that theSecretary of Labor is statutorily empowered to make, and indeed is in theprocess of making. In my opinion, the inability of the Commission to arrive ata consistent interpretation of the standard, coupled with the absence of anylegislative history concerning the meaning ?feasible? was intended to have inthe standard, demonstrates that the standard lacks ascertainable criteria forits enforcement and impermissibly delegates to the Commission the authority todecide what the standard should mean. I therefore conclude that the standard isunenforceable to the extent it seeks to require ?feasible administrative orengineering controls? and would vacate the citation issued to Sun Ship in thiscase on this basis.I??????????? It isa fundamental principle that a statute or regulation is unenforceable if itsterms are so uncertain of meaning as to result in arbitrary and discriminatoryenforcement. Grayned v. City of Rockford,408 U.S. 104 (1972); Giaccio v. State ofPennsylvania, 382 U.S. 399 (1966); InternationalSociety for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809 (5thCir. 1979). As the Supreme Court said in Graynedv. City of Rockford, supra:[I]f arbitrary and discriminatoryenforcement is to be prevented, laws must provide explicit standards for thosewho apply them. A vague law impermissibly delegates basic policy matters topolicemen, judges, and juries for resolution on an ad hoc and subjective basis,with the attendant dangers of arbitrary and discriminatory application.?408 U.S. 108?09 (footnotes omitted). Examining thenexus between unenforceably vague statutory terms and the non-delegationdoctrine, Justice Rehnquist observed in his concurring opinion in Industrial Union Department, AFL?CIO v.American Petroleum Institute, 448 U.S. 607, 100 S.Ct. 2844 (1980) ( ?IUD v. API?):As formulated and enforced by this Court,the nondelegation doctrine serves three important functions. First, and mostabstractly, it ensures to the extent consistent with orderly governmentaladministration that important choices of social policy are made by Congress,the branch of our government most responsive to the popular will. See Arizona v. California, 373 U.S. 546,626 (1963) (Harlan, J., dissenting in part); United States v. Robel, 389 U.S. 258, 276 (1967) (Brennan, J.,concurring in the result). Second, the doctrine guarantees that, to the extentCongress finds it necessary to delegate authority, it provides the recipient ofthat authority with an ?intelligible principle? to guide the exercise of thedelegated discretion. See Hampton &Co. v. United States, 276 U.S. 394, 409 (1928); Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935). Third, andderivative of the second, the doctrine ensures that courts charged withreviewing the exercise of delegated legislative discretion will be able to testthat exercise against ascertainable standards. See Arizona v. California, supra, at 626 (Harlan, J., dissenting inpart); American Power & Light Co. v.SEC, 329 U.S. 90, 106 (1946).?100 S.Ct. at 2885?86. Justice Rehnquist?s observationthat Congress ?must provide sufficient principles to guide an agency as to thelimits of its delegated discretion,? is equally applicable to agencypromulgation of standards. Accordingly, where an agency exercisesCongressionally-delegated authority to promulgate standards, the agency mustwrite the standards in reasonably explicit terms so that the adjudicators underthose standards have principles to guide their findings and conclusions.??????????? Inattempting to interpret the noise standard, individual Commission members haveheld greatly divergent views about the meaning of ?feasible? and ultimately theCommission has not been able to adhere to an interpretation. Instead, each timethe Commission has examined the issue, its members came to differentconclusions. In Continental Can Co.,[22] a Commission majorityagreed that ?[i]n determining whether controls are economically feasible, allrelevant cost and benefit factors must be weighed.? 4 BNA OSHC at 1547, 1976?77CCH OSHD at p. 25,256. The majority noted that the Secretary would only allowconsideration of economic factors if the cost of implementing controls wouldseriously jeopardize the financial health of a company[23] and stated that thisapproach is unreasonable because it compels employers to expend considerablesums of money for protection against a hazard that is not life threatening:Clearly, employers have finite resourcesavailable for use to abate health hazards. And just as clearly if they are tobe made to spend without limit for abatement of this hazard their financial abilityto abate other hazards, including life threatening hazards, is reduced. We canconceive that in some if not many cases it will be reduced to the point thatthey will be put in financial jeopardy when faced with the problem of abating alife threatening hazard.?4 BNA OSHC 1547, 1976?77 CCH OSHD at p. 25,256. Thus,the Continental Can majority saw thatit is entirely unreasonable to hold that ?feasible? means simply ?achievable?or ?capable of being done.? The courts that reviewed decisions concerningalleged violations of the noise standard accepted the Continental Canmajority?s interpretation. Donovan v.Castle & Cooke Foods, No. 77?2565 (9th Cir. Nov. 19, 1982); RMI Co. v. Secretary, 594 F.2d 566 (6thCir. 1979); Turner Co. v. Secretary, 561 F.2d 82 (7th Cir. 1977). See also Diversified Industries Division,Independent Stave Co. v. OSHRC, 618 F.2d 30 (8th Cir. 1980); Marshall v. West Point Pepperell, 588F.2d 979, 981 n.3 (5th Cir. 1979).??????????? TheCommission has never until now overruled the Continental Can interpretation, but the two Commission members whoform the majority in this case certainly wanted to, and were only preventedfrom doing so through their inability to agree on a new interpretation.Commissioner Cleary first described his views in his dissenting opinion in Continental Can. There he said,?Economic considerations are notimplicit in the term ?feasible? as it appears in section 1910.95(b)(1)?(emphasis in the original) and ?Cost considerations are relevant only indetermining the pace at which an abatement program should proceed.? 4 BNA OSHCat 1550, 1976?77 CCH OSHD at p. 25,259. Thus, Commissioner Cleary took the viewthat ?feasible? means technologically achievable and nothing more. Astechnology develops, employers must implement it, without regard to costs andbenefits. Commissioner Cottine later agreed with this position in Samson Paper Bag Co., 80 OSAHRC 60\/A2, 8BNA OSHC 1515, 1980 CCH OSHD ?24,555 (No. 76?222, 1980) (concurring opinion),but Commissioner Cleary then decided, having given the matter further thought,that economics plays some role in determining whether controls are feasible.According to Commissioner Cleary, the standard ?should not force an employerinto an abatement situation that, from an economic standpoint, is patentlyunreasonable.? 8 BNA OSHC at 1525, 1980 CCH OSHD at p. 30,048. However, herejected weighing the costs against the benefits as the test of economicfeasibility, saying that the OSH Act does not require a reasonable balance ofcosts and benefits.??????????? Thus,over about four years there were three widely diverging and strongly held viewsexpressed by Commission members about the meaning of ?feasible?: one requiringcost-benefit analysis, another prohibiting any consideration of economicfactors, and a third permitting consideration of economic factors under avaguely defined ?reasonableness? test.??????????? Thecurrent Commission majority adopts a fourth view. As part of the Secretary?sproof of feasibility, the Secretary must show ?either that the cost ofengineering and administrative controls will not threaten the cited employer?slong-term profitability and competitiveness or that the employer?s inability toafford the cost of controls results from the employer lagging behind itsindustry in providing safety and health protection for employees.?[24]II??????????? Acceptingthe Secretary?s arguments, the majority bases its interpretation of the noisestandard on ATMI, in which theSupreme Court decided that ?feasible? means simply ?capable of being done? or?achievable.?[25]However, in ATMI the Supreme Courtwas faced only with the narrow question of interpreting section 6(b)(5) of theOSH Act, which deals with the promulgation of standards for toxic substancesand harmful physical agents. See notes 3 and 6 of the majority opinion. Seealso 101 S.Ct. at 2489. The Court unequivocally stated in ATMI that it did not decide whether costs and benefits can beweighed in promulgating standards under other provisions of the OSH Act or toestablish priorities among possible standards for rulemaking proceedings. 101S.Ct. at 2490 n. 29 and 2493 n. 32. SeeDonovan v. Castle & Cooke Foods, slip op. at 12. Thus, ATMI does not answer what role costs andbenefits can play in a standard adopted under section 6(a).??????????? Additionally,the Court?s ?plain meaning? definition of ?feasible? cannot be uncriticallyapplied wherever the term is found. The Court closely examined the legislativehistory of section 6(b)(5) to assure that the Congressional intent in inserting?feasible? into the section corresponded with what the Court said was the?plain meaning? of the term. See 101S.Ct. at 2490?94. Accordingly, although the meaning of section 6(b)(5) of theOSH Act is now clear from ATMI, themeaning of the noise standard remains an unanswered question.??????????? Interpretingthe noise standard presents different and special problems. Because the noisestandard was adopted under section 6(a) of the OSH Act as an establishedfederal standard in effect under the Walsh-Healey Act,[26] the standard must begiven the same meaning under the OSH Act that it had under the Walsh-HealeyAct, for the Secretary was generally not empowered to effect any substantivechange in adopting standards under section 6(a) of the OSH Act. American Can Co., 82 OSAHRC 5\/A2, 10 BNAOSHC 1305, 1982 CCH OSHD ?25, 899 (No. 76?5162, 1982); George C. Christopher & Sons, Inc., 82 OSAHRC ___, 10 BNA OSHC1436, 1982 CCH OSHD ?25,956 (No. 76?647, 1982), citing Diebold, Inc. v. OSHRC, 585 F.2d 1327, 1332 (6th Cir. 1978); cf. Noblecraft Industries, Inc. v. Secretary,614 F.2d 199 (9th Cir. 1980). But nowhere in the Walsh-Healey Act, itslegislative history, or the standards adopted under the statute is there anyindication what ?feasible? meant under Walsh-Healey. Accordingly, unlikesection 6(b)(5) of the OSH Act, for the Walsh-Healey noise standard there is nolegislative support for interpreting ?feasible? as simply ?achievable.???????????? Inthe absence of any ascertainable criteria to guide the enforcement of astandard, any interpretation given by the Commission is derived, not from thestandard, but from the Commission majority?s own views of what the standardshould say.[27]Such an interpretation is impermissible for any standard, but particularly forone that, like the noise standard, may impose enormous costs on industry toprotect against a hazard that is not life-threatening.[28] The policy decisions thatmust be made in such a situation should be made in rulemaking, in which allpersons affected by the standard have an opportunity to be heard. Indeed, theSecretary is currently engaged in a rulemaking proceeding aimed at determiningthe degree to which administrative or engineering controls must be used toprotect against excessive noise.[29] It is incongruous for theCommission to apply the Supreme Court?s section 6(b)(5) definition of?feasible? to the current standard?s requirement for administrative andengineering controls when the Secretary is considering in rulemaking thecircumstances under which such controls are ?feasible? within the meaning ofsection 6(b)(5).??????????? Theextent of this incongruity is demonstrated by examining the nature of thepolicy decisions the Secretary must make in determining whether administrativeand engineering controls are feasible within the meaning of section 6(b)(5). Asnoted above, note 3 supra, one reportprepared for the Secretary calculated that the cost of achieving 90 dBA in allworkplaces would approximate $13.5 billion, unadjusted for the inflation thathas occurred in the past several years. The report also states that the cost ofachieving the 85 dBA limit of the hearing conservation standard throughengineering controls would approximate $31.6 billion, also unadjusted forinflation. The Secretary must consider the impact these costs will have on eachindustry affected by the standard, taking into account all the complex andcritical factors listed by Commissioner Cleary in his separate remarks in thiscase. He must determine whether different requirements should be imposed ondifferent industries either because the nature of the hazard differs betweenindustries or because certain industries cannot afford to achieve noise levelsthat other industries can, and perhaps already have, obtained. See AFL?CIO v. Marshall, 617 F.2d 825(D.C. Cir. 1979); see also 39 Fed. Reg. 43802 (Environmental ProtectionAgency?s comments in the Secretary?s rulemaking proceeding). He must considerwhether a requirement for administrative or engineering controls should bephased in over a period of time, or whether different industries should begiven different periods for compliance. The difficulty of making thesedeterminations is illustrated by the fact that the Secretary has been unable toadopt a final standard in the approximately ten years he has had the issueunder consideration.[30]??????????? Noneof the factors bearing on economic feasibility under section 6(b)(5) wereconsidered when the Secretary promulgated the present standard under theWalsh-Healey Act, and were also not considered when the Secretary followed thesummary procedure for adopting that standard under the OSH Act. See Continental Can Co., 4 BNA OSHC at1547, 1976?77 CCH OSHD at p. 25,256. The Secretary simply required thatengineering or administrative controls be implemented if ?feasible,? withoutproviding ascertainable criteria by which the meaning of ?feasible? could bedetermined. Indeed, the Secretary?s very purpose in using the word ?feasible? wasprobably to avoid establishing ascertainable criteria and to leave theinterpretation of the word for a later day.??????????? Irecognize that, to this time, no court which has considered the noise standardhas decided that it impermissibly delegates to the Commission the unboundedauthority to establish criteria for its enforcement. Donovan v. Castle & Cooke Foods, supra; RMI Co. v. Secretary,supra; Turner Co. v. Secretary, supra; see also Diversified IndustriesDivision, Independent Stave Co. v. OSHRC, supra. But the interpretationbefore these courts for their consideration was that set forth by theCommission in Continental Can, whichrepresented a good faith attempt to give genuine significance to costs ofcompliance with the noise standard.[31] The Commission had notyet issued the decisions in Samson PaperBag Co., supra, or this case, which so graphically illustrate that the word?feasible? can mean whatever an individual adjudicator wants it to mean.Because the Commission majority has now retreated from Continental Can at the urging of the Secretary, and has substitutedan unworkable test consisting of elements which the majority itself cannotclearly define, I conclude that the requirement of section 1910.95(b)(1) toabate by use of ?feasible? controls must be considered unenforceable.III??????????? Nobodycan deny that protection against excessive noise is necessary. However, it isnot necessary to enforce the requirement for ?feasible administrative orengineering controls? in section 1910.95(b)(1) to provide employees with suchprotection. The requirement of the Secretary?s new hearing conservationstandard that employees be protected against excessive noise levels by personalprotective equipment remains in force.[32] Indeed, in this case theemployee allegedly exposed to excessive noise was wearing Swedish woolearplugs, and there is no allegation that this equipment was being improperlyused.??????????? TheSecretary has been considering, in rulemaking, the circumstances in whichengineering or administrative controls shall be required to supplement theprotection afforded by the hearing conservation standard. The question requiresthe Secretary to consider a number of complex issues, including significance ofthe risk to employees despite the provisions of the hearing conservationstandard and the economic feasibility of controls for all industries andindustry segments affected by the standard. By their decision in this case,however, the majority short-circuits the statutory rulemaking process anddecides that engineering or administrative controls must be implementedregardless of the efficacy or use of personal protective equipment. Themajority further holds that the numerous and complex factors affecting theability of employers to afford the cost of controls, factors that arepeculiarly suited to consideration in rulemaking, must be addressed on acase-by-case basis in adjudication.??????????? Thus,instead of the Commission applying ascertainable criteria established when thestandard was promulgated, each Commission proceeding on a noise citation willbecome a mini-rulemaking proceeding. But because the record made in aproceeding before the Commission cannot possibly permit an intelligentevaluation of the factors the Secretary must consider in rulemaking, suchCommission proceedings will inevitably result in arbitrary and unequalenforcement of the standard. Given the absence of any legislative history ofthe standard establishing ascertainable criteria for its enforcement, I wouldhold that the requirement for feasible engineering and administrative controlsis unenforceable. I would leave the issue of when such controls should berequired for the Secretary to resolve in rulemaking, the forum in whichCongress intended such questions to be resolved.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16118 SUN SHIP, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 August 10, 1977DECISION AND ORDERAPPEARANCESFOR THE SECRETARY OF LABORMarshall H. Harris, Regional SolicitorAttn: Howard K. Agran, Esq. U. S. Department of Labor\u00a0FOR THE RESPONDENTPepper, Hamilton & Scheetz Attn:Kenneth L. Oliver, Esq. J. Anthony Messina, Esq.\u00a0Brennan, W. E.; A.L.J.??????????? Thisaction arises under the provisions of Section 10(c) of the Occupational Safetyand Health Act of 1970, 29 U.S.C. 659(c) (hereinafter the Act), to review aCitation for nonserious violations of Section 5(a)(2) of the Act, 29 U.S.C.654(a)(2) and penalties proposed thereon issued pursuant to Sections 9(a) and10(a) of the Act, 29 U.S.C. 658(a) and 659(a) by the Secretary of Labor throughthe Area Director of the Occupational Safety and Health Administration forPhiladelphia, Pennsylvania (hereinafter Complainant), to Sun Shipbuilding andDrydock Company (hereinafter Respondent), following an inspection ofRespondent?s shipyard located at the foot of Morton Avenue, Chester,Pennsylvania (hereinafter work site).??????????? BetweenJuly 31, 1975, and September 30, 1975, three Industrial Hygienists?ComplianceOfficers (Clark, Dubin and Crenshaw), made an industrial hygiene inspection ofRespondent?s work site. As a result of that inspection, Respondent, on November26, 1975, was issued a Citation alleging nonserious violations of Section5(a)(2) of the Act, 29 U.S.C. 654(a)(2) for failure to comply with theOccupational Safety and Health Standards (hereinafter Standards) codified at 29C.F.R. 1910.95, (Item No. 1) and 29 C.F.R. 1910.1000 (Item No. 2), as well as aNotification proposing a total penalty of $60 based upon Item No. 2 (R.pp. 1,2).??????????? Atimely notice of contest to both Items of the Citation was filed by Respondent,through its counsel, pursuant to Section 10(c) of the Act, 29 U.S.C. 659(c)(R.p. 3).??????????? Afterthe filing of a Complaint (R.p. 6) and Answer (R.p. 8), this case wasoriginally set down for trial for March 24, 1976 (R.p. J 1).??????????? ItemNo. 1 of the instant Citation involved the so called ?noise? Standard, 29C.F.R. 1910.95, and Item No. 2, the Air Contaminant Standard, 29 C.F.R.1910.1000, and there ensued rather protracted pretrial procedures involving areinspection of Respondent?s work site and discovery procedures (R.pp. J 2through J 25).??????????? OnAugust 24, 1976, the Review Commission issued its Decision in the case of Sec. of Labor v. Continental Can Company,Inc., OSHRC Docket No. 3973, et al., which involved the noise Standard (29C.F.R. 1910.95), and significantly altered the burden of proof of the partiesto such a type of case. A further delay in this trial was occasioned awaitingthe Complainant?s decision on whether to appeal the Continental Can case to anappropriate U. S. Court of Appeals (R.pp. J 26 through J 32). It was finallydecided that any further delay of this trial pending the appeal in the Continental Can case was not warranted,and the trial was finally convened pursuant to written notice on January 12,1977, concluding on the fifth day, with an intermittent recess, on March 10,1977 (R.pp. J 32 through J 35). Both parties were represented by counsel. Noaffected employees or representatives thereof desired party status (Tr. Vol. I,p. 6). Post-trial briefs were finally received from both parties on May 23,1977 (R.pp. J 50, J 51).??????????? Havingconsidered the entire record herein, the testimony and demeanor of thewitnesses, the exhibits, stipulations, representations, admissions andarguments of the parties, it is concluded that the substantial, reliable andprobative evidence of this record considered as a whole supports the followingfindings of fact and conclusions of law.??????????? Thecitation as issued herein, set forth the following information:Item No. 1? Description of Alleged Violation29 C.F.R. 1910.95?Employees, in thefollowing locations, were subjected to sound levels which exceeded thepermissible exposures listed in Table G 16 of this section, and their exposureswere not limited in accordance with the requirements of 29 CFR 1910.95(b)(1).The sound levels were obtained at the hearing zone of the employees:a) Shot Blast Building?shot blast operator?b) Building No. 42, BlacksmithShop?Blacksmith (grinding hatch opening rings and blacksmithing)?Employees at the preceding locations, ?a?and ?b?, were subjected to sound levels for which the exposure fraction Cn\/Tn(see Table G 16, Note #1) exceeded 1.0.c) Building No. 30, Boiler Shop?arcairoperator?Employee at the preceding location, ?c?,was subjected to sound levels in excess of 115 dBA.\u00a0Abatement was ordered in accordance with a specifictimetable set forth in the Citation, and a total penalty of $60, not allocatedto any of the three specified locations, was intended to be proposed (see fn.[33], supra).? Item No. 2? Description of Alleged Violation29 C.F.R. 1910.1000?Employees, in thefollowing locations, were exposed to material listed in Table Z 1 of thissection, and their exposures were not limited in accordance with therequirements of 29 CFR 1910.1000(a)(2), (d)(1) and (e). Samples were obtainedat the breathing zone of the employees:a) Building No. 30, Boiler Shop?arcairoperator?Employees at the preceding location, ?a?,were exposed to iron oxide fume concentrations in excess of 10 mg\/M3(eight-hour time-weighted average).?Abatement was ordered in the same fashionas under Item No. 1, and no penalty was intended to be proposed (R.pp. 1, 2).?The cited Standards provide:? Item No. 1? 29 C.F.R. 1910.95Occupational Noise Exposure(a) Protection against the effects ofnoise exposure shall be provided when the sound levels exceed those shown inTable G 16 when measured on the A scale of a standard sound level meter at slowresponse. When noise levels are determined by octave band analysis, theequivalent A-weighted sound level may be determined as follows:?(b)(1) When employees are subjected tosound exceeding those listed in Table G 16, feasible administrative orengineering controls shall be utilized. If such controls fail to reduce soundlevels within the levels of Table G 16, personal protective equipment shall beprovided and used to reduce sound levels within the levels of the table.? TABLE G?16?PERMISSIBLE NOISE EXPOSURES1 \u00a0 Duration per day, hours Sound level dBA slow response 8 90 6 92 4 95 3 97 2 100 1 ? 102 1 105 ? 110 ? or less 115 \u00a0(Footnote 1 omitted)Exposure to impulsive or impact noiseshould not exceed 140 dB peak sound pressure level.(2) If the variations in noise levelinvolved maxima at intervals of 1 second or less, it is to be consideredcontinuous.?(3) In all cases where the sound levelsexceed the values shown herein, a continuing, effective hearing conservationprogram shall be administered.?Item No. 2? 29 C.F.R. 1910.1000Air ContaminantsAn employee?s exposure to any materiallisted in table Z 1, Z 2, or Z 3 of this section shall be limited in accordancewith the requirements of the following paragraphs of this section.?(a) Table Z 1:(2) Other materials?8-hour time weightedaverages. An employee?s exposure to any material in table Z 1, the name ofwhich is not preceded by ?c?, in any 8-hour work shift of a 40-hour work week,shall not exceed the 8-hour time weighted average given for that material inthe table. Table Z-1 Substance p\/m mg\/M3 Iron Oxide Fume \u00a0 10 (e) To achieve compliance with paragraph(a) through (d) of this section, administrative or engineering controls mustfirst be determined and implemented whenever feasible. When such controls arenot feasible to achieve full compliance, protective equipment or any otherprotective measures shall be used to keep the exposure of employees to aircontaminants within the limits prescribed in this section. Any equipment and\/ortechnical measures used for this purpose must be approved for each particularuse by a competent industrial hygienist or other technically qualified person.Whenever respirators are used, their use shall comply with ? 1910.134.???????????? Thefollowing matters were stipulated to by the parties at the outset of trial.??????????? ExhibitC 1 was admitted into evidence (Tr. Vol. I, p. 7). Samples of the iron oxidecontaminant obtained during the inspection of Respondent?s work site were sentto the National Institute?s Occupational Safety and Health analyticallaboratory at Salt Lake City, Utah, where they were analyzed by Chemist EdwardF. Zimowski. Exhibit C 1 sets forth the substance of this chemist?s testimonyif he were produced as a witness, i.e., the receipt of the samples, the methodused to analyze them, and the results of this analysis. These samples were foundto contain iron oxide in excess of the 10 mg\/M3[34] limit set forth inthe Standard, to wit; 23.4, 20.3, 27.2 and 19.9 mg\/M3 (see Exhibit C 1, p. 3).This exhibit obviated the need to call this chemist and relates to Item No. 2of the Citation.??????????? ExhibitC 2, as amended by counsel at trial, was also admitted into evidence (Tr. Vol.I, pp. 7 12).??????????? Thisexhibit involves Item 1(a) of the Citation, wherein, it is alleged that theshotblast operator, working in a shotblast building at the work site, wasexposed to sound levels which exceeded the allowable levels set forth in thecited Standard, 29 C.F.R. 1910.95, supra.??????????? Atthe close of the Complainant?s case, Respondent moved for the dismissal of theCitation. During argument on that motion, Item 1(a) of the Citation was foundto have been established by the stipulation, Exhibit C 2. Because Respondenthad implemented two of the three engineering controls suggested by Complainantin his reinspection of the work site thereby evidencing its good faith, it wasconcluded that no penalty (or portion of the $60 penalty proposed for all thealleged noise violations, Items 1(a), 1(b) and 1(c)), should be assessed (Tr.Vol. V, pp. 38 62). That ruling is hereby confirmed.??????????? Further,at the beginning of trial, Complainant moved to vacate Item 1(c) of theCitation, on the ground that there exists no known engineering technology toreduce employee exposure who are arcairing[35] to permissible levels asset forth in Table G 16 of the noise Standard. This motion was granted, whichruling is hereby confirmed (Tr. Vol. I, pp. 12, 13).??????????? Thus,at the outset of trial, there remained for resolution the one remaining allegednoise violation, Item No. 1(b), involving an employee located in Building No.42 engaged in grinding hatch opening rings, with a hand held, pneumaticgrinder, and Item No. 2, involving an employee in Building No. 30, the BoilerShop, engaged in an arcairing operation and exposed to iron oxide fumes inexcess of the limit permissible under the cited Standard.??????????? Itwas additionally stipulated that Respondent is a Pennsylvania corporation withits principal office located at its shipyard in Chester, Pennsylvania. Itpurchases goods in excess of one million dollars a year from sources withoutthe State of Pennsylvania. No injuries are connected with this case. It is alarge employer in its geographic area, with an average daily number of 4000employees. Its gross annual sales exceed 100 million dollars (Tr. Vol. I, pp.17 21, Vol. II, p. 97).??????????? Basedupon the foregoing, it is concluded that Respondent is an employer engaged in abusiness affecting commerce who has employees within the meaning of Sections3(5) and (6) of the Act, 29 U.S.C. 652(5) and (6). Upon the filing of theNotice of Contest herein, the Review Commission has jurisdiction in this matterpursuant to Section 10(c) of the Act, 29 U.S.C. 659(c).??????????? Thefirst issue to be decided is Respondent?s contention that it was improperlycited, in Item No. 2, for an alleged violation of the General Industry Standardcodified at 29 C.F.R. 1910.1000 because the arcairing operation in process,which forms the factual basis of the allegation, involved shipbuilding andthus, a Maritime-Shipbuilding Standard, specifically 29 C.F.R. 1916.82(d)(1)should have been cited (see Respondent?s Brief, pp. 3, 4, 13 15; R.p. J 50).??????????? TheGeneral Industry Standard codified at 29 C.F.R. 1910.5, in pertinent part,provides as follows:??????????? Applicabilityof Standards(c)(1) If a particular standard isspecifically applicable to a condition, practice, means, method, operation, orprocess, it shall prevail over any different general standard which mightotherwise be applicable to the same condition, practice, means, method,operation, or process. For example, ? 1501.23(c)(3) of this title prescribespersonal protective equipment for certain ship repairmen working in specifiedareas. Such a standard shall apply, and shall not be deemed modified norsuperseded by any different general standard whose provisions might otherwisebe applicable, to the ship repairmen working in the areas specified in ?\u00a01915.23(c)(3).?(2) On the other hand, any standard shallapply according to its terms to any employment and place of employment in anyindustry, even though particular standards are also prescribed for theindustry, as in Subpart B or Subpart R of this part, to the extent that none ofsuch particular standards applies. To illustrate, the general standardregarding noise exposure in ? 1910.95 applies to employments and places ofemployment in pulp, paper, and paperboard mills covered in ?\u00a01910.261.???????????? Respondentargues that the Shipbuilding Standard codified at 29 C.F.R. 1916.82(d)(1),[36] covers the activity herein question because the coverage of the Longshoremen and Harbor Workers Act(under which the Shipbuilding Standards were initially promulgated) has beenjudicially broadened under the recent case of Dravo Corp. v. Maxin, 545 F.2d 374 (CA 3, 1976). Thus, the employeewho was arcairing in Respondent?s shipyard, although geographically removedfrom the ?navigable waters of the U. S.,? would be covered under the Dravo case, supra, and also thereby covered under the Shipbuilding Standard.??????????? Thesolution to this issue, however, in my view, rests in determining the meaningof the above quoted ?applicability? provisions of the General IndustryStandards, 29 C.F.R. 1910.5(c)(1) and (2).??????????? Althoughthe quoted provisions are far from a model of clarity, they appear to intend tomake applicable to any given condition, the most specific Standard existent,whether a General Industry or particular industry standard regardless of wherethe alleged violative condition exists. Here, the General Industry Standardcited and relied upon by Complainant, 29 C.F.R. 1910.1000 is much more specificthan the Shipbuilding Standard Respondent argues should apply. 1910.1000 makesreference to the specific offending air contaminant herein, iron oxide fume byname, and sets a specific employee exposure limit, 10 mg\/M3, whereasthe Shipbuilding Standard is more general in its terms.??????????? Itis therefore concluded that the appropriate and more specific General IndustryStandard is properly cited and relied upon herein and Respondent?s argument isrejected.??????????? Thenext issue raised is whether the remaining noise violation, Item 1(b),involving the grinding of hatch rings at Respondent?s work site, is establishedby the evidence of record.??????????? Inorder to determine this question, reference must be made to the decision of theCommission in its precedent case, Sec. ofLabor v. Continental Can Company, Inc., OSHRC Docket No. 3973 et al.(August 24, 1976).??????????? ChairmanBarnako, speaking for the majority, in part,[37] held that the NoiseStandard, 29 C.F.R. 1910.95, ?. . . requires only the implementation of thoseengineering controls which are economically, as well as technically feasible.?(p. 3, Slip opinion). In short, the Chairman defined the word ?feasible? as itappears in the Noise Standard, to mean both ?economically? and?technically??feasible.??????????? Further,the Chairman stated:In determining whether controls areeconomically feasible, all the relevant cost and benefit factors must beweighed. . . . any significant reduction in ambient noise levels which areabove G 16 limits will tend to provide some protection to the hearing ofemployees. But we cannot overlook the fact that protection against most of thedetrimental effects of excessive noise can be achieved through the use of arelatively reliable and convenient type of personal protective equipment.Additionally, the effects of exposure to continuous noise levels as high as 115dBA is permitted by the standard itself.\u00a0Other factors to be considered in thebenefits which noise reduction will achieve include the number of employeesexposed to excessive noise, and the net reduction in their exposure whichengineering or administrative controls can reasonably be expected to produce.As to the last noted factor we would emphasize that the benefits to be obtainedwill vary according to the magnitude of the noise levels existing prior to theimposition of controls. Cost factors which must be considered include both thedirect costs of installing and maintaining controls, and indirect costs due toany loss of productivity or efficiency resulting from their implementation.This list is not meant to be all-inclusive. We cannot here establish specificguidelines which will be applicable to all cases. The ultimate determination ineach individual case must be made by weighing all the relevant factors in lightof the objectives of the Act.\u00a0The burden of proving that engineering oradministrative controls are feasible lies with Labor. Love Box Co., OSHRC Docket No. 6286, BNA 4 OSHC 1138, CCH OSHDpara. 20,588 (April 7, 1976); ReynoldsMetals Co., OSHRC Docket No. 1551, BNA 3 OSHC 2051, CCH OSHD para. 20,447(February 25, 1976).16Fn 16 In Atlantic & Gulf Stevedores, Inc. v. OSHRC, [534 F2d 541 (3rdCir., March 26, 1976)], the Court indicated that an employer could generallydefend against an alleged violation of a standard by proving that the standardwas not economically feasible as to him. The standard here at issue, unlike theone before the Court, explicitly requires only those engineering andadministrative controls which are feasible. Accordingly, proof of feasibilityis an element of the charge, and must be borne by Labor. In Love Box Co. and Reynolds Metals Co., supra, Labor conceded that it had the burdenof proving the feasibility of engineering or administrative controls.?(Slip opinion, pp. 18 20).?As of this writing, the Continental Can case has not beenreviewed, reversed or modified by any U. S. Circuit Court of Appeals. Ittherefore constitutes Review Commission precedent which binds the undersignedand controls the determination of the issue stated, supra. Gindy ManufacturingCompany v. Secretary of Labor, 10 OSAHRC 367, (May 7, 1974).??????????? AsCommissioner Cleary pointed out in his dissenting opinion in Continental Can, supra:Perhaps the most disturbing aspect of theChairman?s holding is his placing of the burden of proving the economicfeasibility of engineering controls upon the Secretary. This imposition iscontrary to settled principles of law. More importantly, however, it placesupon the Secretary a burden that is so onerous that it may be impossible tosatisfy. As a necessary consequence, therefore, it will be virtually impossiblefor the Secretary to enforce the noise standard so as to assure the continuingdevelopment and implementation of technologically feasible engineeringcontrols.[38]\u00a0(Slip opinion, pp. 35 36).??????????? Asto the case herein, and the issue stated, supra, the evidence of this recorddoes not establish the alleged noise violation set forth in Item 1(b). Underthe Continental case burden of proof,Complainant failed to introduce any evidence whatever concerning the ?. . .indirect costs due to any loss of productivity or efficiency resulting from . ..?, the implementation of ?technically? feasible engineering controls (i.e., amuffled air driven grinder and a wooden workbench), which the evidence doesestablish were available to this Respondent (see Tr. Vol. I, pp. 34 104, Exhs.R 1, R 2; pp. 113 202, Exhs. C 3, C 4, C 5, C 6).[39] At the close of theComplainant?s case, Respondent?s motion to dismiss Item 1(b) was granted forthe foregoing reasons (Tr. Vol. V, pp. 3 89). This ruling is hereby confirmed.[40]??????????? Thereremains for determination Item No. 2 of the nonserious Citation herein, whichalleges that an arcair operator in Respondent?s Boiler Shop, was exposed toiron oxide fumes in excess of the 10 mg\/M3 level set forth in theAir Contaminant Standard, 29 C.F.R. 1910.1000, and Respondent failed todetermine and implement feasible engineering controls to reduce his exposure.??????????? Paragraph(e) of the cited Standard provides:To achieve compliance with paragraph (a)through (d) of this section, administrative or engineering controls must firstbe determined and implemented whenever feasible. When such controls are notfeasible to achieve full compliance, protective equipment or any otherprotective measures shall be used to keep the exposure of employees to aircontaminants within the limits prescribed in this section.29 C.F.R. 1910.1000(e)???????????? Duringtrial, Respondent?s counsel argued that the term ?feasible? as it appears inthe Air Contaminant Standard should be construed to mean what Chairman Barnakosaid ?feasible? means in the Noise Standard (29 C.F.R. 1910.95) in the Continental Can case. (Tr. Vol. V, pp.90 126).??????????? Thisargument is rejected. In my view, the term ?feasible? appearing in the AirContaminant Standard means ?practically possible of accomplishment under all ofthe circumstances of the case.?[41] (Tr. Vol. V, pp. 107,127). ?Feasible? is defined in Webster?s New World Dictionary (The WorldPublishing Co., Second College Ed., 1974), as follows:1. Capable of being done or carried out;practicable; possible. 2. Within reason, likely, probable. 3. Capable of beingused or dealt with successfully; suitable.\u00a0??????????? Inherentin the foregoing definitions are concepts of both ?technical? and ?economic?feasibility. In my view, ?economic? feasibility, i.e., the financial capacityof an employer to implement engineering or administrative controls, otherwise?technically feasible,? is properly a matter of an affirmative defense to beborne by employers, who are best situated to know their own financial statusand the financial impact, both as to ?direct? and ?indirect? costs,implementation of ?technically? feasible controls will have.??????????? Thedefinition ?announced? (as Respondent puts it), at trial, in the absence ofauthority to the contrary, is therefore used herein to determine the allegediron oxide violation.??????????? IndustrialHygienist Martin Dubin, on September 30, 1975, very professionally, carefullyand competently obtained air samples from the breathing zone of the arcairingemployee, Mr. Wilson.[42] These samples, properlyhandled throughout, were ultimately analyzed at the Salt Lake City laboratoryof NIOSH. This analysis revealed concentrations of iron oxide, in these samplesto be as follows: 23.4 mg\/M3; 20.3 mg\/M3; 27.2 mg\/M3;19.9 mg\/M3. From these results, the eight hour time weightedexposure of Mr. Wilson to the iron oxide fumes, was properly calculated to havebeen 13.986 mg\/M3, thus exceeding the 10 mg\/M3 Standard limit. (Tr.Vol. II, pp. 5 94).??????????? Theevidence of record clearly establishes Mr. Wilson?s exposure to a level of ironoxide fumes in excess of the limit set forth in the Standard. It furtherestablishes, however, without contradiction, that throughout this arcairingoperation, Mr. Wilson wore a respirator. It was Respondent?s practice, to issuea respirator, either air line or canister type depending on the type ofarcairing to be performed, to any employee who is to do arcairing, with thearcairing tool and equipment from the tool room, prior to each arcairingoperation. (Tr. Vol. II, pp. 98 109). Instructions on how to use theserespirators are given employees and Respondent?s safety personnel regularlyinspect and enforce the use of this respiratory equipment. (Tr. Vol. II, p.113; Vol. V, p. 150).??????????? Thus,the question presented by this case is whether there existed ?feasible?administrative or engineering controls to achieve compliance with the citedStandard, 29 C.F.R. 1910.1000(e). If so, a violation has been established. Ifnot, Respondent was justified in resorting to ?protective equipment,? i.e.,respirators, as spelled out in paragraph (e) of 1910.1000 for the arcairingoperation in question; and no violation existed.??????????? Theevidence reveals that Respondent?s Boiler Shop, within which the arcairingoperation in question took place, is approximately 500 feet long and 120 feetwide. This building is divided into two open areas, the low bay and high bay.The low bay is about 45 feet high, the high bay 70 to 75 feet high. In the lowbay, two 25-ton overhead cranes operate at about 25 feet from the floor. In thehigh bay, one 100-ton and three 35-ton overhead cranes also operate. ThisBoiler Shop, like Respondent?s other operations, is essentially a job shop, thatis, there exists no production line type of operation. Many varied andindividualized parts for ships are fabricated therein, such as bulbous bows,rudders, propellers, boilers, smoke stacks and the like. Many of these shipcomponents are of gigantic size and weight, are fabricated at varying locationswithin the Boiler Shop on a space available basis. Thus, the physical layout ofthis shop varies from day to day. (Tr. Vol. V, pp. 177 180, 221 245).??????????? Thearcairing type of operation is used extensively throughout Respondent?sshipyard and as many as 50 such operations may be in progress on any given day.Within the Boiler Shop, as many as seven or eight arcairing operations arefrequently in progress. Large ventilating blowers or fans, capable of moving 186,000cubic feet of air per minute are located in the roof of the Boiler Shop.Individual local ventilation equipment is provided to all welders and foremployees working in enclosed spaces on ships. Respondent employs ventilationcontrol experts to assure adequate ventilation in enclosed spaces which aboundat this shipyard. (Tr. Vol. II, pp. 100, 112; Vol. V, pp. 205 210).??????????? Onthe day of the inspection, Mr. Wilson was working in the low bay of the BoilerShop about 50 feet in from the river end of this building. He was engaged inarcairing a large cone and a cylinder. The cylinder was a portion of an innersmoke stack and was about 5 feet in diameter and 30 feet long, and was layingon its side, on a platen (platform), thus resembling a large pipe. Respondent?squality assurance inspectors had marked various welds and other areas on thesurface of the cylinder which required arcairing. To accomplish the arcairing,staging had been erected alongside of this cylinder, and Mr. Wilson wasobserved to arcair from the staging, 5 to 6 feet off the floor, as well as onthe bottom portion of the cylinder, about 2 feet from the floor. Uponcompletion of the arcairing operation, inspectors would reinspect the areas.Other work was performed on this cylinder during the total arcairing process,such as rewelding joints and further inspections. This cylinder was in theBoiler Shop for approximately 45 days and arcairing took place inside as wellas outside of the cylinder. (Tr. Vol. V, pp. 177 189, 191, 230). There is no evidencein this record concerning the specifics of the large cone Mr. Wilson wasarcairing on the day of the inspection.??????????? Asnoted earlier, the arcairing process involves melting unwanted metal, such as adefective weld, to a molten state and blowing this molten metal away from thesurface by a jet of high velocity air, emitted from the arcairing tool at from80 to 100 psi (pounds per square inch). The molten metal, which generates theiron oxide fumes, is thus blown away at about 100 to 125 feet per second (Tr.Vol. III, pp. 90 91). There is thus produced a large, defused shower of sparksand molten metal propelled in a direction away from the operator. If thearcairing operation is a shallow cut, the fume cloud is closer to the operatorthan if a deep cut is being made. In the latter case, a tunnel like effect isproduced and the fume cloud is propelled as far as 25 feet from the operator(Tr. Vol. V, pp. 230, 231). The trajectory of the shower of sparks and moltenmetal, as well as the iron oxide fume cloud, will also vary depending upon thegeometry or shape of the surface being arcaired.??????????? Respondentproduced a representative from the Arc Air Company, the manufacturer of thearcair tool used by Mr. Wilson. Although this company, through its Research andDevelopment Department, is currently working in both the noise and fume controlarea, having spent about $100,000 for various consultants, it as yet has notbeen successful in devising any system to effectively vent arcairing fumesunder the conditions existent at Respondent?s work site. Further, he wasunaware of any commercially available equipment for dealing with this problem(Tr. Vol. III, pp. 86 142).??????????? Respondenthas also performed several experiments attempting to collect and vent awayarcairing fumes which were not successful. In 1970, Respondent found that itsexperimental collector was not successful because the molten metal damaged theimpellers in the ventilating blowers and clogged the filters (Tr. Vol. V, pp.225 227).??????????? Complainant?sprimary witness concerning the arcairing operation, Mr. Gronka, an IndustrialHygiene Engineer with a private consultant firm, testified at considerablelength to three proposed engineering methods to ventilate the iron oxide fumesaway from Mr. Wilson while working on the cylinder. (Mr. Gronka made apost-inspection visit to Respondent?s Boiler Shop on May 7, 1976. The cylinderin question was no longer there. He reviewed Industrial Hygienists Dubin?snotes to visulize the arcairing operation in question.)??????????? Hefirst suggested the most simple devise, a pedestal fan to blow the iron oxidefume cloud away from Mr. Wilson (Tr. Vol. II, pp. 182 188). He next recommendeda ?lamb? air mover, which is nothing more than a relatively high velocity,directional fan, to blow the fumes away from Mr. Wilson.??????????? Neitherof these suggestions, however, are practical, as pointed out by Respondent?sSafety Director, Mr. Walton. Either system merely moves the iron oxide fumecloud from one location to another, which, because of the job shop nature ofRespondent?s work site, in all probability, would result in blowing the fumesonto nearby workers. Additionally, the high velocity fan (variously denominateda ?lamb? air mover, squirrel cage or copas blower), would subject an arcairoperator to a significant draft and thus a possible health hazard. Further, anyhigh velocity air mover would also blow dust particles about, with asignificant chance of causing such particles to be blown into the eyes ofnearby workers, compounding an already common employee complaint of foreignmatter in their eyes. Furthermore, because arcairing operations involve thefrequent movement of the operator from one location to another upon the hugestructures involved, any fan type of ventilation would require the repositioningof any type of fan being used. This would have to be done by ventilationemployees, not the arcair operator, or a jurisdictional labor dispute mightwell ensue (Tr. Vol. V, pp. 211, 216 236).??????????? Mr.Gronka?s next suggestion was a system of fume collection and exhaustion awayfrom the operator outside of the building. These systems were to employ varioustypes of collection hoods, connected by duct work to exhaust fans and byadditional duct work to outside of the building. Exhibits C 7(a), (b), (c) andC 8 are copies of diagrams depicting these suggested engineering controls. Suchexhausting suggestions also involved the use of a platen or platform withmotorized rollers, onto which the stack in question would be placed, androtated so that the arcairing operation could be done at a constant, fixedlevel off the floor.??????????? Thesesystems all have significant difficulties which make them impracticable. Aspointed out by Respondent?s Safety Director, if Respondent?s work site involvedthe same operation on a day-to-day basis, perhaps such systems might be made towork effectively. However, Respondent?s work is just the contrary, with aconstantly changing work environment, with differently shaped, large componentsof ships being fabricated at ever changing locations within the Boiler Shop.The collection hoods also present a significant problem. The molten metal andsparks created by the arcairing process, being jetted away at high speed fromthe point of burning, would strike the collection hood and bounce back at theoperator, thus subjecting him to the danger of burns. These hoods, to beeffective in any way, would have to be positioned at a very precise distanceand angle to the point of burning, which would require the constant adjustmentof them from one spot to another as the various locations on the stack would bearcaired. Because of the mechanically limited range and configuration which thehooded ducts are capable of, such a system would not be possible of use insideof large ship parts, such as the bulbous bows or rudders, the interior of whichare webbed with reinforcing steel supports. Additionally, the duct work tocarry off the fumes would significantly interfere with the movement of theoverhead cranes in this Boiler Shop.??????????? Thevery large, skid mounted exhaust fan also suggested is likewise not practical(See Exhibit C 9). Its implementation would require frequent repositioningwithin the Boiler Shop, which would require the use of overhead cranes as wellas flexible duct work running on the Shop floor to the fan. This ducting on theShop floor of course would create a tripping hazard.??????????? Theuse of the platen equipped with motorized rollers, to position the cylinder atissue at a constant fixed level (a necessary part of the fume collection, hoodsuggestion), is also impractical, because of the necessity for other employeesto work upon and within the cylinder during arcairing operations (Tr. Vol. II,pp. 124 214, 215 233; Vol. III, pp. 5 85; Vol. IV, pp. 9 28, 29 103; Vol. V,pp. 133 258).??????????? Althoughthe evidence of record is rather meager as to the toxicity of iron oxide fumes,both parties appear to agree that these fumes present the lowest form oftoxicity and constitute no risk of permanent physical injury or disability toemployees. It is compared to nuisance dust (Tr. Vol. IV, pp. 17 21; Exh. C 10).??????????? Thus,when dealing with a substance of such admittedly low toxicity, if toxic at allon this record, the Complainant?s burden of proving the feasibility, i.e.,practicality of suggested engineering or administrative controls, is higherthan if a more toxic air contaminant were involved. Similarly, Respondent?sburden of showing infeasibility, i.e., impracticality is proportionatelyreduced.??????????? Theevidence is also clear and unrebutted that Respondent?s employees, includingMr. Wilson, who carry out arcairing operation at this work site, are adequatelyprotected from iron oxide fumes by well maintained respirators, the use ofwhich is closely monitored and enforced by Respondent?s Safety Division.??????????? Uponthe evidence of record herein, it is therefore concluded that there existed nofeasible engineering or administrative controls available to Respondent for thearcairing operation in question on the day of the inspection. Respondent?sutilization of personal protective equipment, i.e., a respirator for theemployee engaged in this operation, conformed to the requirements of the AirContaminant Standard, 29 C.F.R. 1910.1000, and thus, no violation of thisStandard has been established.??????????? Basedupon the foregoing findings and conclusions, and pursuant to the provisions ofSections 10(c) and 12(j) of the Act, 29 U.S.C. 659(c) and 661(i), it is hereby,ORDERED:??????????? 1.That Item No. 1(a) of the Nonserious Citation herein, alleging a violation ofSection 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), for failure to comply with theNoise Standard set forth at 29 C.F.R. 1910.95, is AFFIRMED. No penalty isASSESSED.??????????? 2.Items No. 1(b) and 1(c) of said Citation are VACATED.??????????? 3.Item No. 2 of said Citation, alleging a violation of Section 5(a)(2) of theAct, 29 U.S.C. 654(a)(2) for failure to comply with the Air ContaminantStandard set forth at 29 C.F.R. 1910.1000 is VACATED.?WILLIAM E. BRENNANAdm. Law Judge, OSHRCDated: August 10, 1977?Hyattsville, Maryland\u00a0\u00a0[1] 29 C.F.R. ?1910.95(b)(1) provides:?1910.95 Occupational noise exposure.(b)(1) When employees are subjected to sound exceeding those listed in Table G?16,feasible administrative or engineering controls shall be utilized. If suchcontrols fail to reduce sound levels within the levels of Table G?16, personalprotective equipment shall be provided and used to reduce sound levels withinthe levels of the table. TABLE G?16?PERMISSIBLE NOISE EXPOSURES1 Duration per day, hours Sound level dBA slow response 8 90 6 92 4 95 3 97 2 100 1 ? 102 1 105 ? 110 ? or less 115 1 When the dailynoise exposure is composed of two or more periods of noise exposure ofdifferent levels, their combined effect should be considered, rather than theindividual effect of each. If the sum of the following fractions: C1\/T1 + C2\/T2Cn\/Tn exceeds unity, then, the mixed exposure should be considered to exceedthe limit value. Cn indicates the total time of exposure at a specified noiselevel, and Tn indicates the total time of exposure permitted at that level.Exposure to impulsive or impactnoise should not exceed 140 dBA peak sound pressure level.[2] The OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act? or ?the OSHAct?).[3] Section 6(b)(5),29 U.S.C. ? 655(b)(5), of the Act provides in pertinent part:TheSecretary, in promulgating standards dealing with toxic materials or harmfulphysical agents under this subsection, shall set the standard which mostadequately assures, to the extent feasible, on the basis of the best availableevidence, that no employee will suffer material impairment of health orfunctional capacity. . . .[4] The case isbefore the Commission pursuant to ? 12(j) of the Act, 29 U.S.C. ? 661(i). Priorto the Supreme Court?s decision in ATMI,the parties filed briefs with the Commission. The Secretary contended that Continental Can was wrongly decided andthat, under a proper burden of proof, his case was sufficient. Sun Shipcontended that the Secretary?s case was insufficient under Continental Can and therefore was properly dismissed.[5] Sun Ship arguedto the judge and on review that the Secretary was required, as a part of hisprima facie case, to establish the feasibility of the proposed engineeringcontrols for all other, similar operations performed in Sun Ship?s facility,not just the feasibility of controls for the one cited operation. A similarclaim was made in Carnation Co. v.Secretary of Labor. The Court of Appeals for the Ninth Circuit held thatthe employer must be given the opportunity to show ?that a piecemeal approachdiffers significantly from a plant-wide approach,? 641 F.2d at 805, and that,if the employer shows there would be significantly different results, then theSecretary must show that his controls are feasible for the entire plant.[6] Section 6(b)authorizes the Secretary to adopt safety and health standards after notice andan opportunity to comment. See ?? 6(b)(2)?(4). Section 6(b)(5) containsspecific requirements imposed on ?[t]he Secretary, in promulgating standardsdealing with toxic materials or harmful physical agents under this subsection… .? In ATMI the Supreme Courtreviewed a standard regulating exposure to cotton dust which was adoptedpursuant to ? 6(b)(5).[7] Section 6(a)authorized the Secretary to adopt safety and health standards without regard toother requirements for notice and comment rulemaking proceedings in theAdministrative Procedure Act, 5 U.S.C. ?? 551?706, and in this Act. Theauthority was limited to the two years following the effective date of the Actand concerned adoption of national consensus standards, see 29 U.S.C. ? 652(9),and established federal standards, see 29 U.S.C. ? 652(10). See generally S. Rep. No. 1282, 91st Cong., 2d Sess., at 5?6,reprinted in Legislative History of the Occupational Safety and Health Act of1970, at 145?46 (1971). The noise standard, ? 1910.95, was an establishedfederal standard adopted as an occupational safety and health standard pursuantto ? 6(a). The standard was originally promulgated by the Secretary under theWalsh-Healey Act, 41 U.S.C. ?? 35?45.[8] Our dissentingcolleague claims that the Commission errs in applying the Court?s ATMIinterpretation of the statutory term ?feasible? to the interpretation of thesame term in a section 6(a) standard. This new interpretation conforms theCommission?s interpretation of ?feasibility? to the language and intent of theAct as interpreted by the Supreme Court. Moreover, reappraisal of precedent ispermissible in the administrative process though the reversal of precedent mustbe guided by caution. See NLRB v. J.Weingarten, Inc., 420 U.S. 251, 265?6 (1975); Atchison, Topeka & Santa Fe R.R. Co. v. Wichita Board of Trade,412 U.S. 800 (1973); NLRB v. WentworthInst., 505 F.2d 550, 555 (1st Cir. 1975). Accordingly, we reject ourdissenting colleague?s suggestion that the Commission?s overruling of itsprecedent of 6 years and its substitution of a new interpretation of the term?feasible? supports his contention that the standard is unenforceably vague.[9] The United StatesCourt of Appeals for the Ninth Circuit recently issued its decision in Donovan v. Castle & Cooke Foods, A Div.of Castle & Cooke, Inc., No. 77?2565 (9th Cir. Nov. 19, 1982),affirming a 1977 Commission decision that applied the Continental Can cost-benefit test. The court concluded that theCommission?s interpretation was ?neither unreasonable, arbitrary, nor anextension of the authority granted the Commission by the Act,? slip. op. at 13,under the applicable standard for judicial review of agency decisions, slip.op. at 6. The court deferred to the Commission?s expertise in interpreting thestandard. This case involves a necessary reevaluation of Continental Can and a reinterpretation of the noise standard inlight of the Supreme Court?s decision in ATMI.The Ninth Circuit considered theSupreme Court?s interpretation of the term ?feasible? in section 6(b)(5) of theAct to be inapplicable to section 6(a) standards. However, we treat asidentical the term ?feasible? in the statute and the noise standard. WhenCongress authorized the Secretary to adopt established federal standards andnational consensus standards as occupational safety and health standards, itunderstood that the Walsh-Healey standards would be the primary source ofestablished federal standards for covered workplace hazards. General Motors Corp., GM Parts Div., 81OSAHRC 13\/C10, 9 BNA OSHC 1331, 1336?37, 1981 CCH OSHD ?25,202 at pp. 31,122?24(No. 79?4478, 1981), appeal dismissed,No. 81?3194 (6th Cir. Sept. 16, 1981). Several of these standards, like thenoise standard, regulated exposure to ?toxic materials? and ?harmful physicalagents? and contained feasibility requirements. At the same time that Congressauthorized the adoption of section 6(a) standards, it authorized thepromulgation of standards dealing with toxic materials or harmful physicalagents under section 6(b)(5). Section 6(b)(5) also contains a feasibilityrequirement. There is no indication that Congress intended the feasibilityrequirement of existing standards that the Secretary was authorized toimplement immediately to be measured by a different criterion than feasibilityunder section 6(b)(5).Accordingly, we respectfullydecline to acquiesce in the Ninth Circuit?s divergent interpretation of theterm ?feasible.? Rather, we view the ATMIinterpretation to be applicable to the regulation in question. Cf. Baroid Div. of N.L. Industries, Inc. v.OSHRC, 660 F.2d 439, 447 (10th Cir. 1981) (definition of ?feasible? aseconomically and technologically capable of being done applied to a section5(a)(1) violation based on Supreme Court?s definition in ATMI).[10] In an early caseinvolving a challenge by a union to the promulgation of a ? 6(b)(5) standard,the Court of Appeals for the District of Columbia Circuit held that theSecretary could properly consider the economic impact on an industry indetermining whether a standard is feasible. IndustrialUnion Department, AFL?CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974). Thatholding has been followed in other decisions involving challenges to 6(b)(5)standards. United Steelworkers ofAmerica, AFL?CIO?CLC v. Marshall, 647 F.2d 1139, 1265 (D.C. Cir. 1980), cert. denied, 101 S.Ct. 3148 (1981); American Iron & Steel Institute v. OSHA,577 F.2d 825 (3d Cir. 1978), cert.dismissed, 448 U.S. 917 (1980). Thus, by the time ATMI was decided by the Supreme Court, there was no longer any realdispute that the Secretary could, and indeed must, consider the economic impacton an industry in determining feasibility. Indeed, in the industry challenge tothe cotton dust standard that led to the Supreme Court?s decision in ATMI, the D.C. Circuit held that theSecretary had not established the economic feasibility of the standard for thecottonseed oil industry. AFL?CIO v.Marshall, 617 F.2d 825 (D.C. Cir. 1979). That holding was not in issuebefore the Supreme Court.[11] The initialinquiry into feasibility of administrative or engineering controls involveswhether such controls are technologically feasible. The Commission has heldthat, because the standard expressly requires that administrative orengineering controls be used in preference to personal protective equipment,controls which achieve a significant reduction in noise exposure will be deemedtechnologically feasible even if they do not result in absolute compliance withTable G?16 levels. Continental Can Co.,4 BNA OSHC at 1545?46, 1976?77 CCH OSHD at pp. 25,254?55; see also Samson Paper Bag Co., supra; Turner Co., 76 OSAHRC 108\/A2, 4 BNA OSHC 1554, 1976?77 CCH OHSD?21, 023 (No. 3635, 1976), rev?d on othergrounds, 561 F.2d 82 (7th Cir. 1977). This test for technologicalfeasibility is consistent with the ordinary meaning of ?feasible? as set forthby the Supreme Court in ATMI.[12] In most casesarising under the noise standard, there will not be a serious question of theemployer?s ability to afford the cost of technologically feasible controls;economic feasibility will be clear. See,e.g., Continental Can Co., 4 BNA OSHC at 1542 n.4, 1976?77 CCH OSHD at p.25,251 n.4. It has been our experience that the controls suggested by theSecretary in cases arising under section 1910.95(b)(1) are not generally soexpensive as to give rise to substantial question of their economicfeasibility. Moreover, in most cases it will be possible to alleviate theemployer?s financial difficulty by extending the time required for theinstallation of controls. See SamsonPaper Bag Co., supra (lead and separate opinions). Thus, in cases wherefinancial hardship is asserted, the Commission will consider whether thishardship can be adequately cured through an extended abatement date beforeconcluding that the controls are infeasible.Commissioner Cleary notes that,when there is a question whether controls will be so costly as to threaten anemployer?s ability to remain in business, a range of economic factors may meritconsideration. These factors could include the competitive structure of theindustry involved, the competition that the industry faces from otherindustries or from other countries, inflation, the ability of the company toraise capital, its ability to alter employees? work schedules and assignments,its other capital investment requirements, energy costs, and the like. SeeATMI; Samson Paper Bag, supra(Cleary, concurring).[13] In CommissionerCleary?s view, the Secretary may make out a prima facie showing of economicfeasibility by showing that the estimated costs of the controls are smallcompared with other figures that represent the company?s financial ability. Forexample, if implementation of the controls would require an initial capitalinvestment, the Secretary could show that the company regularly makes capitalinvestments that are substantially larger than implementation of the controlswould require. If the controls would involve annual costs, the Secretary couldshow that the company?s annual cash flow or profits, over a representativeperiod of time, are substantially larger than the annual cost the controlswould impose. Such information is readily available to the Secretary eitherthrough public reports that corporations must file or through discovery.The employer may then rebut theSecretary?s case by showing that the cost figures are incorrect or thatadditional, indirect, costs will be incurred, or that any of the factors listedabove, such as the competitive structure of the industry, make controlsinfeasible. The employer may also rebut the Secretary?s case by showing thatwhile controls for the cited locations are economically feasible, the cost ofplant-wide controls would exceed the bounds of economic feasibility. Carnation Co. v. Secretary of Labor, 641F.2d 801 (9th Cir. 1981).[14] The followingfractions were added:1\/1.5+ 2\/8 + 1\/infinity (zero) + 3.25\/6(Thepermissible time for exposure to 102 dBA is 1.5 hours, for 90 dBA is 8 hours,for less than 90 dBA is unlimited, and for 92 dBA is 6 hours).[15] The expertestimated that the muffler could be designed in one day for about $400. In twodays, a draftsman could produce detailed engineering design drawings andinvestigate the availability of materials. The cost for the draftsman?s workwould be about $800. The expert estimated that additional expenses could bringthe design cost to about $1500.The expert further estimated thatlabor for making the housing would be about $120 (for 6 hours at $20 per hour).Labor at the same wage rate for the muffler would be about $80 (4 hours) andabout $80 (4 hours) to apply the parts to the tool. The expert estimated thecost of materials at about $40, for a total fabrication cost of approximately $320.[16] Because thecompliance officer detected noise levels of 102 dBA when there was nobackground noise (from other employees working near the blacksmith), we do notascribe any part of the elevated noise levels to background noise.[17] The Secretary?sexpert did not specify what dBA reduction he would expect from thesound-dampening workbench, but he testified that it should be made of woodwhich he stated has ?significant? sound-dampening properties. He also specifiedthat the workbench should have clamps to hold the workpiece in place firmlyagainst the wood. Thus, most if not all vibration noise can be eliminated usingthe wooden workbench with clamps.[18] On the basis ofthe expert?s testimony, see note 17 supra, most of the vibration noise can beeliminated. Because the noise level was 102 dBA when the blacksmith was exposedonly to the noise generated by grinding metal and about 10 dBA of this noiselevel was vibration noise, we find that using the proposed workbench can beexpected to reduce the vibration noise by approximately 7?8 dBA. Adding to thisthe 3 dBA reduction in grinder noise, the 102 dBA noise level can be reduced byabout 10?11 dBA. The computation based on Table G?16 and the footnote to it,see note 1 supra, will be:1\/6+ 2\/8 + 1\/infinity (zero) + 3.25\/6(Thepermissible time for exposure to 92 dBA is 6 hours.)The compliance officer?scomputation was:1\/1.5+ 2\/8 + 1\/infinity (zero) + 3.25\/6The sum will be .96 rather than1.46. See note 14 supra and accompanying text. The total reduction may be evengreater. The expert stated that a 6 dBA reduction in grinder noise from themuffler could be possible.[19] The cases reliedon by our dissenting colleague in support of his conclusion that the noisestandard is unenforceable because it is ?so uncertain of meaning as to resultin arbitrary and discriminatory treatment? are inapposite to these proceedingsbecause they involve either criminal or First Amendment issues. The standardfor review of the constitutional sufficiency of a regulatory warning is not the?reasonably explicit? test taken from Graynedv. City of Rockford, 408 U.S. 104 (1972). As the omitted footnote citationsto Papachristou v. City of Jacksonville,405 U.S. 156, 162 (1972), reveal, the test of Grayned is subject to the qualification that administrativeregulations are governed by a less stringent standard. 408 U.S. at 108?09 nn. 3& 4; see Diebold, Inc. v. OSHRC,585 F.2d 1327, 1337 (6th Cir. 1978).Whenconsidering remedial legislation such as the OSH Act and its implementingregulations, the purported vagueness of a standard is judged not on its facebut rather in the light of its application to the facts of the case. PBR, Inc. v. Secretary of Labor, 643F.2d 890, 897 (1st Cir. 1981); McLeanTrucking Co. v. OSHRC, 503 F.2d 8, 10?11 (4th Cir. 1974). Moreover, theregulations will pass constitutional muster even though they are not draftedwith the utmost precision; all that due process requires is a fair andreasonable warning. Allis-Chalmers Corp.v. OSHRC, 542 F.2d 27, 30 (7th Cir. 1976).FaultlessDiv., Bliss & Laughlin Indus., Inc. v. Secretary of Labor & OSHRC, 674 F.2d 1177,1185 (7th Cir. 1982). See Diebold, Inc.v. OSHRC, supra, citing, Boyce MotorLines v. United States, 342 U.S. 337, 340 (1952). A standard is notunconstitutionally vague simply because judgment must be exercised indetermining its application. SeeBethlehem Steel Corp., 82 OSAHRC ___, 10 BNA OSHC 1673, 1677 n.8, 1982 CCHOSHD ?26,093 at p. 32,832 n.8 (No. 77?1807, 1982). See Turner Co., supra note 11. A standard must be read in light ofthe conduct to which it is addressed. UnitedStates v. National Dairy Products, Inc., 372 U.S. 29, 36 (1963); Bethlehem Steel Corp., supra.Additionally, while we do not agreewith the dissenting Member that the standard in question is constitutionallyinfirm, we note that[I]tis axiomatic that defects in the constitutional sufficiency of a regulatorywarning may be cured by authoritative judicial or administrativeinterpretations which clarify obscurities or resolve ambiguities.Diebold,Inc. v. OSHRC,585 F.2d at 1338 (footnote omitted), citing, Rose v. Locke, 423 U.S. 48, 52 (1975); Parker v. Levy, 417 U.S. 733, 752?54 (1974); Smith v. Gougen, 415 U.S. 566, 575 ( 974); Wainwright v. Stone, 414U.S. 21, 22?23 (1973); Jackson v. Dorrier,424 F.2d 213, 217?18 (6th Cir.), cert.denied, 400 U.S. 850 (1970). See S& H Riggers & Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260,1264 & n.14, 1978 CCH OSHD ?23, 490 at p. 28,437 & n.14 (No. 15855,1979), rev?d on other grounds, 659F.2d 1273 (5th Cir. 1981).The Commission has consistently andrepeatedly held that the noise standard is not unenforceably vague. E.g., Turner Co., supra, cited in Wheeling-Pittsburgh Steel Corp., 79OSAHRC 66\/A2, 7 BNA OSHC 1581, 1979 CCH OSHD ?23, 784 (No. 14702, 1979); Wheeling Corrugating Co., A Div. ofWheeling-Pittsburgh Steel Corp., 77 OSAHRC 204\/E9, 6 BNA OSHC 1661, 1977?78CCH OSHD ?22,350 (No. 13286, 1977), petitiondenied, No. 77?1030 (3d Cir. Nov. 20, 1978); Castle & Cooke Foods, A Div. of Castle & Cooke, Inc., 77OSAHRC 87\/A2, 5 BNA OSHC 1435, 1977?78 CCH OSHD ?21,954 (No. 10925, 1977), aff?d, No. 77?2565 (9th Cir. Nov. 19,1982); accord Plum Creek Lumber Co. v.Hutton, 608 F.2d 1283 (9th Cir. 1979); cf.Turner Co. v. Secretary of Labor, 561 F.2d 82, 84 (7th Cir. 1977)(consideration of relevant economic considerations under Continental Can will?obviate any due process challenge?). The term ?feasible? is not so devoid ofmeaning that a fair determination of the required conduct cannot be made. See Boyce Motor Lines v. United States,supra. Furthermore, one of the cases relied on by our colleague indicatesthat perceived ambiguities can be cured by interpretation?a course that ispreferable to invalidation. SeeInternational Society for Krishna Consciousness of Atlanta v. Eaves, 601F.2d 809, 822 (5th Cir. 1979).In ATMI v. Donovan, the Court determined that the term ?feasibility?had an ascertainable meaning based on the statute. 101 S.Ct. at 2490. Thedefinition set forth by the Court is applicable to the regulation at issue. Wereject our colleague?s suggestion that the term is devoid of meaning.[20] CommissionerCottine further notes that the dissent?s conclusion that the noise standardrepresents an impermissible delegation depends on the erroneous premise thatthe noise standard is vague. The dissent characterizes the noise standard as animpermissible delegation to the Commission of the Secretary?s authority topromulgate standards and establish enforcement criteria under the Act. This broadcharacterization ignores the fact that the noise standard establishes adefinite criteria for occupational noise exposure?an 8-hour time weightedaverage of 90 dBA. ? 1910.95(a). This required performance is to be achieved by?feasible? administrative or engineering controls. ? 1910.95(b). As previouslynoted, the term ?feasible? permits a fair determination of the required conductand is capable of application to the factual controversies presented to thisadjudicatory forum. See Boyce Motor Linesv. United States, supra note 19.Like any factual inquiry ?feasibility? is determined by the uniquecharacteristics of an employer?s economic conditions and the technologicalattributes of the abatement methodology. The ?feasibility? criterion isascertainable and the possibility of more than one interpretation does notjustify invalidation under the delegation doctrine. ATMI v. Donovan, 101 S.Ct. at 2506 n.75. The mere fact that a termrequires a factual analysis does not invalidate the standard. Factual determinationsare both the heart of adjudication and the focus of delegation. See Atlas Roofing Co., Inc. v. OSHRC,430 U.S. 442, 449?60 (1977). Seegenerally L. Jaffe, Judicial Controlof Administrative Action ch. 3 (1965). Moreover, a feasibility determinationis the type of complex fact-finding regularly committed to an administrativeagency for specialized adjudication in the context of the forum?s experienceand expertise. See, e.g., Crowell v.Benson, 285 U.S. 22, 46?47 (1932); ReconstructionFinance Corp. v. Bankers Trust Co., 318 U.S. 163, 170 (1943). Accordingly,Commissioner Cottine rejects the dissent?s conclusion that the noise standardis unenforceable because the regulatory use of the term ?feasible? results inan impermissible delegation.In addition, Commissioner Cottinenotes that the Commission?s adjudicatory responsibility does not permit it toquestion a standard?s stringency or appropriateness. W.J. Lazynski, Inc., 79 OSAHRC 108\/B6, 7 BNA OSHC 2064, 2072, 1980CCH OSHD ?24,145 at p. 29,336 (No. 13864, 1979); Austin Bridge Co., 79 OSAHRC 81\/A2, 7 BNA OSHC 1761, 1764, 1979 CCHOSHD ?23,934 at p. 29,021 (No. 76?93, 1979); Fleming Foods of Nebraska, Inc., 77 OSAHRC 196\/C12, 6 BNA OSHC1233, 1978 CCH OSHD ?22,889 (No. 14484, 1977). However, the Commission?sindependent adjudicatory responsibility necessarily includes the interpretationof the statute and its implementing regulations. Donovan v. Castle & Cooke Foods Div., Castle & Cooke, Inc.,No. 77?2565, slip op. at 7 (9th Cir. Nov. 19, 1982) and cases cited; Brennan v. OSHRC & Ron M. Fiegen, Inc.,513 F.2d 713 (8th Cir. 1975). In interpreting the term ?feasibility,? it isirrelevant that the Secretary has under consideration revisions to the presentstandard, see, Modern Drop Forge Co. v.Secretary of Labor, 683 F.2d 1105, 1111 (7th Cir. 1982); Koppers Co., Inc., 77 OSAHRC 44\/A2, 2BNA OSHC 1354, 1974?75 CCH OSHD ? 19,063 (No. 3449, 1974); United States Steel Corp., 77 OSAHRC 12\/C3, 2 BNA OSHC 1343,1974?75 CCH OSHD ?19, 047 (Nos. 2975 & 4349, 1974) (alternate holding), appeal dismissed, 517 F.2d 1400 (3d Cir.1975), or that individual members of the Commission have expressed differingpersonal views on the proper interpretation of this term, see Public Service Commission of the State of New York v. Federal PowerCommission, 543 F.2d 757, 777?78 (D.C. Cir. 1974). It is the Commission?sinstitutional responsibility as an adjudicatory body, 29 U.S.C.?\u00a0651(b)(3), to apply precedent unless overruled or distinguished, see Atchison, Topeka & Santa Fe RailwayCo. v. Wichita Board of Trade, 412 U.S. 800, 808 (1973); Secretary of Agriculture v. United States,347 U.S. 645 (1954); Local 777, DemocraticUnion Organizing Committee Seafarers Int?l Union of North America v. NLRB,603 F.2d 862, 894 (D.C. Cir. 1978), and to interpret the applicable legalrequirements in the context of factual controversies.[21] American Textile Manufacturers Institute v.Donovan, 101 S.Ct. 2478 (1978) (?ATMI?).[22] 76 OSAHRC 109\/A2,4 BNA OSHC 1541, 1976?77 CCH OSHD ?21,009 (No. 3973, 1976), appeal withdrawn, No. 76?3229 (9th Cir.Apr. 26, 1977) (?Continental Can?).[23] Engineeringcontrols to reduce noise levels can be very expensive. A study prepared forOSHA in the early 1970?s projected that the cost of achieving the 90 dBA 8-hourtime weighted average limit of the noise standard using engineering controlswould be about $13.5 billion. 1973?74 CCH Developments ? 9126. And, since thattime, inflation has undoubtedly increased the cost considerably. In contrast,according to OSHA?s preamble to the new hearing conservation standard, 46 Fed.Reg. 4078, 4117?18 (1981), the cost of a hearing protection program meeting therequirements of the new standard is expected to be, at most, $270 million.The cost of engineering controlsobviously will fall unevenly on different industries and different employerswithin an industry. Thus, there is a very real possibility that the costsassociated with engineering controls will jeopardize the financial health ofparticular employers or even of entire industries.[24] Although theyagree on this broad, general test, it appears that Commissioners Cleary andCottine do not agree on how the test is to be applied. Commissioner Clearyspecifies numerous factors that may be considered in such inquiry, and it isnot clear whether Commissioner Cottine considers those factors relevant. Seenotes 12 and 13 of the lead opinion. Moreover, the wide range of factorsCommissioner Cleary would consider provide a further demonstration that?feasible? can mean whatever a person wants it to mean. As Justice Rehnquiststated, ?feasible? is a ?legislative mirage . . . assuming any form desired bythe beholder.? IUD v. API, 100 S.Ct.at 2883 (concurring opinion).[25] In this case, theSecretary argues that the Court?s interpretation of ?feasible? as it appears in? 6(b)(5) rulemaking should be applied to the judicial interpretation of thenoise standard, promulgated under ? 6(a). However, in another case, the Secretaryhas argued to the Commission that the ?significant risk? test for ? 6(b)(5)standards established by the Supreme Court in IUD v. API should not be applied to the interpretation andapplication of standards because that decision of the Court applies only torulemaking, and not adjudication. SeePratt & Whitney Aircraft, 10 BNA OSHC 2011, 1982 CCH OSHD ?26,257 (No.13591, 1982), appeal filed, No.82?4180 (2d Cir. Nov. 16, 1982).[26] See note 7 of themajority opinion.[27] See Continental Can Co., 4 BNA OSHC at1546?47 and n. 14, 1976?77 CCH OSHD at p. 25,255 and n. 14. Having recognizedthat the legislative history of the standard provided no guidance as to therole economic considerations were to play, the majority in Continental Canproceeded to hold that the standard required a balancing of costs and benefits.Although I believe such an interpretation is ?reasonable,? the Commissioncannot create an interpretation of a standard that has no basis in the languageand intent of the standard. As I have noted, it is the duty of thecongressionally delegated authority, in this case the Secretary, to provideascertainable criteria by which standards can be interpreted and applied. Tohold otherwise would mean that the Commission, not the Secretary, is settingthe standard, and would constitute an impermissible delegation of theSecretary?s rulemaking authority. Thus, although I believe that the ContinentalCan interpretation was reasonable, I also believe that the majority?s analysisin Continental Can supports the conclusion that the standard is unenforceable.[28] The abatement ofmany life-threatening hazards involves costs far less than those at stake inimplementing engineering controls for noise. For example, OSHA estimated thecost of engineering controls for cotton dust at $543 million. ATMI, 101 S.Ct. at 2498. OSHA believedthat the cost of such controls for benzene would be $266 million. IUD v. API, 100 S.Ct. at 2857. The costof engineering controls for lead, to be implemented by primary and secondarysmelters, battery manufacturers, and the paints and coatings industry, OSHAprojected to be between approximately $337 and 395 million. United Steelworkers of America, AFL?CIO?CLCv. Marshall, 647 F.2d 1189, 1278?1303 (D.C. Cir. 1980), cert. denied, 101 S.Ct. 3148 (1981). AndOSHA estimated that the costs for compliance with the coke oven emissionsstandard would be between $240 and 1,280 million. American Iron & Steel Institute v. OSHA, 577 F.2d 825, 836 (3dCir. 1978), cert. dismissed, 448 U.S.917 (1980).The costs associated with abatingthese life-threatening hazards have been subjected to intense scrutiny inadministrative rulemaking and in judicial review of the rulemaking actions. Incontrast, the potentially much greater costs associated with engineeringcontrols for noise, see note 3 supra, were apparently not considered beforesection 1910.95(b)(1) was promulgated under the Walsh-Healey Act and the policydecisions that Congress intended should be made before such costs are imposedon industry have not been made or scrutinized in any forum.[29] In 1972, pursuantto authority granted by 29 U.S.C. ?? 669(a) and 671(d), the National Institutefor Occupational Safety and Health (?NIOSH?) developed a criteria document onnoise exposure recommending that the Secretary study the feasibility ofreducing the permissible time weighted exposure level to 85 dBA. In 1973,pursuant to authority granted by 29 U.S.C. ? 656(b), the Assistant Secretary ofLabor for Occupational Safety and Health appointed an Advisory Committee onNoise to receive and evaluate the views of labor, management, government, andindependent experts in noise problems and make recommendations to OSHA for arevised noise standard. In late 1973, the Advisory Committee transmitted itsreport to OSHA and, during the first nine or ten months of 1974, OSHA consideredthe information and recommendations contained in the NIOSH criteria documentand the Advisory Committee?s recommendations, as well as other availableinformation. 46 Fed. Reg. 4102?4103. Then, on October 24, 1974, OSHA proposed arevision to the noise standard and solicited comments and objections. 39 Fed.Reg. 37773?37778. Subsequently, the comment period was extended several timesbecause of the complexity of the issues and over the next several years, twoinformal hearings were held. See 46 Fed. Reg. 4103?04 (summarization of noticesand proceedings). These proceedings resulted in the hearing conservationamendment to the noise standard and OSHA?s solicitation of further informationabout revision of the noise standard?s current requirement for the use of?feasible? engineering and administrative controls. See 46 Fed. Reg. 4105.[30] In this case, theSecretary contends that Sun Ship violated section 1910.95(b)(1) by exposing asingle employee to excessive noise and by failing to implement engineeringcontrols for the equipment that employee was using. However, the interpretationestablished in this case will control the disposition of more than twenty othercases now before the Commission. Many of those cases will have implications forthe types of noise controls required in entire industries. E.g., Cox Enterprises, Docket No. 12074 (newspaper industry); Pabst Brewing Co., Docket No. 13068 and77?1895 (beverage packaging); Plum CreekLumber Co., Docket No. 78?1753 (sawmill operations); Deering-Milliken, Inc., Docket Nos. 12598 and 13037 (textilemanufacturing); Southwest ForestIndustries, Docket No. 78?3976 (corrugated paperboard manufacturing); Sherwin Williams, Inc., Docket No. 14131(can manufacturing). Therefore, although this case has relatively simplisticfacts, its decision will have a broad impact on numerous industries, and it isnecessary to consider that impact in deciding this case.[31] In Donovan v. Castle & Cooke Foods, theNinth Circuit concluded that the Supreme Court?s decision in ATMI did not preclude a weighing ofcosts and benefits in the enforcement of a ? 6(a) standard. The Ninth Circuittherefore accepted the Commission?s interpretation of ?\u00a01910.95(b)(1)because that interpretation was not unreasonable, arbitrary, or inconsistentwith the Act. Slip op. at 13. I agree with the Ninth Circuit that ATMI does not preclude a weighing ofcosts and benefits in interpreting a ? 6(a) standard. However, as I haveexplained above, the enforcement of any standard must be consistent with the regulatoryintent underlying the standard. The Commission is not free to fill a regulatoryvoid by supplying its own interpretation of a standard lacking in regulatoryintent, no matter how reasonable that interpretation may be.[32] The hearingconservation standard requires employers to ensure that all employees exposedto noise levels in excess of those listed in Table G?16 wear personal hearingprotectors. In addition, employers must make hearing protectors available toemployees exposed to time weighted average noise levels greater than 85 dBA,and must ensure that employees exposed to such noise levels who haveexperienced a permanent significant threshold shift in their hearing abilitywear such protectors. 29 C.F.R. ? 1910.95(1).Properly used, personal protectiveequipment is capable of as much as a 20 to 30 dB attenuation in existing noiselevels, see 46 Fed. Reg. at 4111 (1981), and can reasonably be expected toproduce a 10 to 15 dB attenuation, see 46 Fed. Reg. 4113?14. Of course, theeffectiveness of personal protective equipment depends on its correct use and,therefore, personal protective equipment is generally regarded as inferior toengineering controls. See Continental Can Co., supra; Turner Co., 76 OSAHRC108\/A2, 4 BNA OSHC 1554, 1976?77 CCH OSHD ?21,023 (No. 3635, 1976), remanded, 561 F.2d 82 (7th Cir. 1977); see generally 46 Fed. Reg. at 4078,4113, 4114. However, in the hearing conservation amendment to the noisestandard, OSHA prescribes a program for effective use of personal protectiveequipment. The employer is required to make available a variety of suitableprotective devices, to insure their proper fit, and to train and superviseemployees in the proper use and care of hearing protectors. Detailedinstructions are also prescribed for evaluating the degree of noise attenuationwhich will be achieved by protective equipment. Presumably, the program can besuccessfully implemented. Moreover, engineering controls can also be usedineffectively and can become progressively less effective from wear and abuse.For example, removable barriers or enclosures can be circumvented, left out ofplace, or damaged by employees. See OrmetCorp., 81 OSAHRC 35\/C3, 9 BNA OSHC 1828, 1981 CCH OSHD ?25,322 (No.76?4398, 1981) (employees deliberately damaged a locking clasp on a mainelectrical disconnect switch so that they could use it as an on-off switch); MRS Printing, Inc., 78 OSAHRC 84\/B10, 6BNA OSHC 2025, 1978 CCH OSHD ?23, 102 (No. 76?3113, 1978)) (employeecircumvented dual controls activating a guillotine cutter by tripping the lefthand lever with his left knee, leaving his left hand free while the blade wasactivated by his right hand). Thus, engineering controls, too, involve humanelements that can undermine the protection.[33] During the trialherein, without objection, the Notification of Proposed Penalty was amended, toreflect Complainant?s true intention, to wit, to propose the $60 penalty forthe alleged noise violation, Item No. 1, and no penalty for Item No. 2 (Tr.Vol. IV, p. 20).[34] [35] Arcairing is aprocess of burning away unwanted metal. It is the opposite of welding. Thearcair tool is hand held. It is fitted with various diameter carbon rods, whichare electrically arced producing intense heat which melts the unwanted metal toa molten state. An air stream at high velocity (80 to 100 p.s.i.) moves throughthe tool and blows the molten metal away at approximately 100 to 125 feet persecond. The process is used to gouge out defective welds or to burn and blowaway other types of unwanted metal from surfaces. The molten metal generatesthe iron oxide fumes at issue herein (Tr. Vol. III, pp. 90, 91; Vol. pp. 224226).[36] This Standardprovides:(d)Protection against particulate contaminants not immediately dangerous to life.(1)When employees are exposed to unsafe concentrations of particulatecontaminants, such as dusts and fumes, mists and fogs or combinations of solidsand liquids, they shall be protected by either air line or filter respirators,except as otherwise provided in the regulations of this part.[37] See ?concurring?opinion of Commissioner Moran, p. 23, Slip opinion.[38] I find myself inagreement with the compelling logic of Commissioner Cleary?s well reasoneddissent in the Continental Can case,Slip opinion, pp. 24 37. Regrettably, I am not free to follow it however.[39] This failure ofevidence is quite understandable. I fail to understand how Complainant canproduce such evidence absent a thorough and extensive cost analysis of all ofRespondent?s relevant financial, as well as production records, coupled with athorough time and motion study of the noise operation both before and after the?technically? feasible engineering or administrative control. (Complainantmight well have to resort to Section 8(b) of the Act, 29 U.S.C. 657(b) toaccomplish this.) Even this type of evidence might well prove to beinsufficient under Continental Canbecause the Chairman advises that the indicated ?indirect costs,? ?. . . is notmeant to be all-inclusive.?[40] Thisdetermination is one example of what I conceive to be the accuracy and wisdomof Commissioner Cleary?s caveat in his dissenting opinion in the Continental Can case, quoted, supra.[41] The term?feasible? is not defined in the Act or the Air Contaminant Standard.[42] All sampling doneby the inspecting Industrial Hygienists were professionally and competentlycarried out.”