“SECRETARY OF LABOR,Complainant,v.THE SHERWIN WILLIAMS COMPANY,Respondent.OIL, CHEMICAL AND ATOMIC WORKERSINTERNATIONAL UNION AND ITS LOCAL 7-268,Authorized EmployeeRepresentative.OSHRC Docket No. 14131_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BUCKLEY, Commissioner:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).The primary issue on review is whether engineering controls proposed bythe Secretary to reduce noise at Sherwin-Williams’ plant are \”feasible\”within the meaning of the occupational noise standard at 29 C.F.R. ?1910.95(b)(1).[[1]] The judge found that the controls were not feasibleand vacated a citation alleging a violation of the standard. Forreasons given in our separate opinions, Chairman Rowland and I affirmthe judge’s decision.ISherwin-Williams was cited for failing to use engineering controls toreduce noise levels at its Chicago, Illinois can manufacturing plant. The judge described the can production process as follows:The operation is housed in two multi-story buildings. There are 33punch presses which make various can components, lids, tops, bottoms,handles, the ears to which bails attach and top rings. There are sevencontinuous can making production lines which fabricate metal cans ofvarious sizes and shapes. A typical can making line begins with amachine called a feeder-slitter. This machine is used to cut tinplatesheet metal into blanks of proper size to be formed in the next machineinto a can body. The bodymaker is a press which forms the flat plate,usually into a cylinder which is then joined at the edges. Sometimesthe ears are added. The body moves next to a flanger where the top andbottom edge are crimped. It then passes to a seamer where the ends areattached. In some lines the next step is to a doper where a plasticsealant lining is sprayed inside the can. The finished can is thenpasse[d] to a tester for air pressure checking for leaks, then on topacking tables for placement by hand into cardboard cases. Movement fromstation to station is continuous along metal tracks drops and chuteswith the cans being propelled by means of moving belts and chains,gravity, vibrators and with the can being turned by air jets, magnetsand cans. Employees attend each operation and observe the conveyor lines.The parties stipulated that 250-280 Sherwin-Williams employees \”work inambient sound levels for periods of time which are in excess of levelsset forth in Table G-16,\” and that administrative controls to reduce oreliminate the excessive noise are not feasible. The sound levels rangefrom 84 to 112 dBA.The Secretary presented Howard Pelton as an expert witness on thefeasibility of engineering controls. Pelton was an acoustical engineer,noise consultant and designer of industrial noise controls. He hadconducted more than 300 noise surveys, some of which involved canmanufacturing plants. He was designing industrial noise controls for acan manufacturing plant at the time of the hearing but had notpreviously designed controls that had been implemented in a canmanufacturing plant. Pelton conducted an extensive noise survey atSherwin-Williams’ plant. He testified that engineering controls couldbe installed that would bring noise levels to 85-88 dBA throughout theplant. He proposed a number of methods for dealing with the manydifferent types of machine. These methods included the installation ofacoustical panels, enclosure and partial enclosure of machines, thehanging of acoustical baffles from the ceiling and the placement ofsound absorptive barriers between machines. Pelton also recommended theinstallation of air silencers, the coating of moving parts withurethane, the redesign of certain machinery, and the tightening of looseparts. Pelton did not actually construct prototypes of any of hisrecommended abatement methods. Pelton estimated that labor andmaterials for the controls would cost approximately $885,590. He didnot consider the details of how his proposals would affect maintenanceor production but did state that there would be no increase in costs dueto increased maintenance or losses in production.Benson, an electrical engineer who designed noise control systems,testified for Sherwin-Williams on the feasibility of the noise controlsrecommended by the Secretary. Benson testified that Pelton haddeveloped concepts for noise reduction, but had not made calculationsthat would have demonstrated that his concepts would abate noise levelsto the degree he claimed. Using the drawings of controls made byPelton, Benson calculated the sound levels that Pelton’s recommendationswould actually achieve at four types of machine. Benson testified thatPelton’s recommendations would not result in reductions to within TableG-16 limits.Four of Sherwin-Williams’ witnesses testified on the cost of Pelton’scontrols. Monchunski, a sales engineer for a metal fabricatingcompany, testified that it would cost $1,028,451 for the materials andlabor needed to realize Pelton’s recommendations. Chimmens,Sherwin-Williams’ chief industrial engineer, testified that the extramanpower and lost production resulting from the installation of thecontrols would cost an additional $201,252. He testified that coatingthe tracks of the conveyors with plastic would cost $20,000. Willer, amaster mechanic for Sherwin-Williams, testified that additionalmaintenance costs, including the wages of an additional machinist, wouldrequire more than $32,000 per year. Drogos, the liaison engineer forSherwin-Williams, estimated that the engineering time required toimplement Pelton’s controls and the scrapping of existing guards wouldcost $340,000.The Secretary introduced three expert witnesses on the effectiveness ofear plugs generally and as used by Sherwin-Williams. William Plotkin,Ph.D., the executive director of the Chicago Hearing Society, had anextensive background in audiological testing. He testified thatSherwin-Williams’ hearing conservation program was not effective and didnot protect the hearing of its employees. Plotkin stated that some ofSherwin-Williams employees would suffer hearing loss if they continuedto work in present sound levels. Both J.V. Tobias, Ph.D., an expert inpsycho-acoustics and audiology, and John Fletcher, Ph.D., a researcherin otolaryngology were in agreement with Plotkin’s assessment ofSherwin-Williams’ program. Fletcher and Tobias stated that acombination of engineering controls and personal protective equipmentwas required to prevent employee hearing loss in the presence ofexcessive noise. From the audiometric records, Fletcher identified 15employees who had suffered hearing loss. Tobias also testified that if\”Peacekeeper\” earplugs were properly worn by employees exposed to anoise level of 95 dBA, he would expect 50% of the employees to beexposed to less than 80 dBA and 94% of the employees to be exposed toless than 90 dBA. With a noise level of 100 dBA, Tobias would expect84% to be exposed to a noise level under 90 dBA.Victor Hildyard, M.D., a clinical professor of otolaryngology at theUniversity of Colorado Medical School, testified for Sherwin-Williams. According to Dr. Hildyard, earplugs are an effective method ofpreventing hearing loss. He identified 35 of the 378 employees testedas having possibly suffered hearing loss, but stated that the hearingloss suffered by Sherwin-Williams’ employees as a whole was comparableto that experienced by a similar group at sound levels of 80 dBA. Hestated that an employee exposed to sound levels of 108 dBA could receivea 30 dBA reduction in noise exposure if earplugs were worn. Hetestified that it was not necessarily more advantageous to useengineering controls to reduce sound levels from 108 decibels to below90 decibels when this 30 decibel reduction was available.Thirteen of Sherwin-Williams’ employees testified on the Secretary’sbehalf regarding the wearing of earplugs and earmuffs at the plant. They testified to a number of complaints that they attributed to thewearing of earplugs, including discomfort, difficulty in communication,hearing loss, difficulty in determining the source of sounds, and earinfections. There was also testimony that employees took earplugs outduring the workday and altered the plugs to make then more comfortable. Three employees also testified, however, that the failure to wearearplugs was a serious breach of Sherwin-Williams’ safety rules.IIThe administrative law judge vacated the citation. Relying on theCommission’s decisions in _Continental Can Co._, 76 OSAHRC 109\/A2, 4 BNAOSHC 1541, 1976-77 CCH OSHD ? 21,009 (No. 3973, 1976), and _Castle &Cooke Foods_, 77 OSAHRC 87\/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD ?21,854 (No. 10925, 1977), _aff’d_, 692 F.2d 641 (9th Cir. 1982), hefound that the engineering controls proposed by the Secretary weretechnologically feasible but were not economically feasible because thebenefits to be gained did not justify the cost of controls.[[2]]The judge found that Pelton’s predictions that controls would reducelevels below 90 dBA were \”well founded\” and that even Benson’s testimonyindicated that Pelton’s controls would accomplish a \”substantial\”reduction. The judge also found that \”[t]he proper wearing of earplugsor earmuffs would have reduced the sound levels reaching employees’eardrums to less than 90 dBA.\” The judge determined that the controlswould cost $1,800,000, or $6,249 per employee, including $1,000,000 forlabor and materials, $200,000 for engineering, and $200,000 per year inlost production and increased maintenance costs for the three yearsrequired to implement the program. He found that lost production andincreased maintenance would continue at an annual rate of $228,000 or$814 per employee after the three year start-up period.[[3]]The Secretary argues that the proposed engineering controls areeconomically feasible because their costs would not jeopardizeSherwin-Williams’ financial position to the extent that it might bedriven out of business, and because the increment in employee protectionis significant compared to the costs of controls. The Secretary and theauthorized employee representative urge rejection of a _Continental Can_type of cost-benefit test, which requires that the benefits ofengineering controls justify their cost.The Secretary maintains that even under the _Continental Can_ test, hisproposed engineering controls are feasible. He claims that thecontrols, which would initially cost $4,286 per employee and would underthe employer’s own evidence cost an additional $714 per employee peryear (see note 3 _supra_), cost less per employee than the controls in_Carnation Co_., 78 OSAHRC 54\/D9, 6 BNA OSHC 1730, 1978 CCH OSHD ?22,837 (No. 8165, 1978), _aff’d_, 641 F.2d 801 (9th Cir. 1981). In thatcase, one Commissioner found that the benefit of engineering controlsoutweighed the costs where the total costs were less than $100,000. TheSecretary also takes exception to the judge’s finding that losses inproduction and increased maintenance costs would cost Sherwin-Williams$200,000 per year. He relies on Pelton’s testimony that the controlsare compatible with Sherwin-Williams’ existing production process andtherefore that no additional annual costs would be incurred.Sherwin-Williams urges the Commission to affirm the judge’s applicationof the cost-benefit test announced in _Continental Can_ and _Castle &Cooke_. It also contends that it was reasonable to expect that Pelton’senclosures would cause losses in production and add to the maintenancecosts. Sherwin-Williams urges the Commission to adopt the judge’sfinding that these factors would cost an additional $200,000 per year.Sherwin-Williams contends that it has an effective hearing conservationprogram. It relies on the results of the audiometric tests itadministered and on the testimony of Dr. Hildyard that the hearing ofSherwin-Williams’ employees was equivalent to that of a group of peopleworking in ambient noise levels of about 80 dBA. Sherwin-Williams alsorelies on Dr. Tobias’ testimony that the proper wearing of thePeacemaker type of earplugs by its employees will result in exposurebelow 80 dBA for more than 95% of its employees. Sherwin-Williamsclaims that testimony from its employees about the negative aspects ofwearing earplugs does not establish that wearing earplugs causedinfections, or, because Table G-16 allows short exposures to excessivesound levels, that employees who occasionally removed earplugs wouldsuffer hearing loss as a result.IIIThe Commission last interpreted the word \”feasible\” in section1910.95(b)(1) in _Sun Ship, Inc_., 82 OSAHRC 69\/A2, 11 BNA OSHC 1028,1983 CCH OSHD ? 26,353 (No. 16118, 1982). There, the Commissionoverruled _Continental Can’s_ holding that the Secretary mustdemonstrate that the benefits to be achieved by engineering oradministrative controls justify the costs of the controls. It adoptedan interpretation of \”feasible\” similar to that advocated by theSecretary in his brief on review in this case. _Sun_ _Ship_ held thatthe Secretary must demonstrate that the cost of administrative andengineering controls will not threaten the long-term profitability andcompetitiveness of the employer, or show that the employer’s difficultyin affording the controls is a result of his inability to keep up withsafe practices in his industry. In concluding that section1910.95(b)(1) is not susceptible to cost-benefit analysis, _Sun Ship_relied on the definition of \”feasible\” given by the Supreme Court in_American Textile Manufacturers_ _Institute v. Donovan_, 452 U.S. 490(1981) (\”_ATMI_\”). In _ATMI_, the Supreme Court held that \”feasible\” asit is used in section 6(b)(5) of the Act, 29 U.S.C. ? 655(b)(5),[[4]]means \”capable of being done\” and does not require a weighing of costsand benefits.By contrast, in a decision issued shortly before _Sun Ship_, the NinthCircuit affirmed the Commission’s decision in _Castle & Cooke_ applyinga cost-benefit analysis. _Donovan v. Castle & Cooke Food_, 692 F.2d 641(9th Cir. 1982). The Ninth Circuit reached a different conclusion thandid the majority in _Sun Ship_, noting that the _ATMI_ decision limitedits construction of \”feasible\” to standards promulgated under section6(b)(5) of the Act, \”a distinct ‘species of the genus of standardsgoverned by the basic requirement’ of the Act.\” 692 F.2d at 648,_quoting_ _Industrial Union Department v. American Petroleum Institute_,448 U.S. 607, 642 (1980). The Supreme Court expressly reserved judgmenton how section 3(8) of the Act, 29 U.S.C. ? 652(8), might affect thepromulgation of standards under other provisions of the Act. _ATMI_,452 U.S. at 513 n.32. That section defines an \”occupational safety andhealth standard\” as a standard that requires \”reasonably necessary orappropriate\” measures. Thus, the Ninth Circuit held that the Commissionwas not required by _ATMI_ to abandon the cost-benefit approach of_Continental Can_, which had been upheld by every court of appeals thatconsidered it. _See_ _Carnation Co. v. Secretary of Labor_, 641 F.2d801 (9th Cir. 1981); _International_ _Harvester Co. v. OSHRC_, 628 F.2d982 (7th Cir. 1980); _RMI Company v. Secretary of Labor_, 594 F.2d 566(6th Cir. 1979); _Marshall v. West Point Pepperell, Inc_., 588 F.2d 979(5th Cir. 1979); _Turner Co. v. Secretary of Labor_, 561 F.2d 82 (7thCir. 1977). Since this case was briefed, the Secretary has accepted thecost-benefit approach to noise standard enforcement affirmed by theNinth Circuit in _Castle & Cooke_. See OSHA Instruction CPL 2-2.35A(Nov. 9, 1983) (prescribing new enforcement policies), _reprinted in_ 1BNA OSHR Reference File 21:8312, 1984 CCH Emp. S&H Guide Developments ?8019; 13 BNA OSHR Current Reports 1294 (May 3, 1984). For thesereasons, the Commission’s decision in _Sun Ship_ should be reexamined.IVSection 1910.95(b)(1) is derived from 41 C.F.R. ? 50-204.10, a noisestandard that was originally promulgated under the Walsh-HealeyGovernment Contracts Act, 41 U.S.C. ?? 35-45 (\”the Walsh-Healey Act\”). The Walsh-Healey Act requires that contracts with the federal governmentfor materials in amounts over $10,000 provide that \”no part of suchcontract will be performed . . . under working conditions which areunsanitary or hazardous or dangerous to the health and safety ofemployees engaged in the performance of said contract.\” Section 1(e),41 U.S.C. ? 35(e). The Secretary of Labor is authorized to adopt rulesand regulations to carry out the statute. Section 4, 41 U.S.C. ? 38. In the event of a breach of the provisions of the Walsh-Healey Act orthe rules promulgated under it, the agency involved \”shall have theright to cancel [the contract].\” Section 2, 41 U.S.C. ? 36. TheWalsh-Healey Act also requires that the name of the breaching contractorbe placed on a list of persons or firms to which \”no contracts shall beawarded . . . until three years have elapsed from the date the Secretarydetermines such breach to have occurred.\” Section 3, 41 U.S.C. ? 37.While the Walsh-Healey background of the noise standard does not reflectany regulative or adjudicative history suggesting the intent of itsredactors, it is possible to reach some conclusions about what wasunderstood by the word \”feasible.\” The noise standard was one of a bodyof regulations governing the relationship between the government ascontractor and businessmen who dealt with it. Costs imposed byWalsh-Healey regulations were reflected in the bids that contractorssubmitted to contracting government agencies. In determining whether tobid, and in preparing their bids, these contractors were subject to avariety of constraints requiring basic economic and financialdecisions. If they allocated a great deal of money to reduce noise byengineering controls, they might drive up their bid and fail to secure acontract. If they did not reduce noise through feasible engineeringcontrols and were the successful bidder, they might be prosecuted underthe Walsh-Healey Act’s enforcement scheme and be exposed to sanctions,which might strip them of the contract and blacklist them for threeyears. Of course, such prospective bidders retained the option of notentering the bid competition if they deemed the constraints to be tooburdensome. Unlike the costs imposed by the prevailing wage, workinghours, child and convict labor, and personal protective equipmentrequirements of the Walsh-Healey Act and standards, the costs imposed bythe engineering control requirement would have been difficult topredict, for the noise standard furnished little guidance on where theLabor Department would draw the line between feasibility andinfeasibility. Accordingly, it seems reasonable to predicate thatgovernment contractors, like all businessmen, would not apply to theword \”feasible\” the meaning commonly given in dictionaries, i.e., asmerely \”capable of being done or carried out,\”[[5]] but rather wouldapply to it a sense of practicality and determine not just whether noisereduction could be accomplished but whether it could be done in acost-effective manner.[[6]] Government contractors, as well as thecontracting agencies, would have understood that employing a dictionarydefinition of feasible would have been self-defeating, for it would haverequired noise to be reduced even to the point of depriving thegovernment of contractors or depriving contractors of a reasonable profit.It is therefore highly unlikely that the government would have intended,or government contractors would have understood, that engineeringcontrols were to be implemented without regard to their benefits. Amore reasonable assumption is that a government contractor would decidewhether administrative or engineering controls were \”feasible\” in thesame way he would determine if it were practical and cost-effective touse certain materials for a job on which he was preparing a bid. Hewould consider the costs of tools and materials and their marginalutility and strike a balance between them. Absent any clear indicationof \”legislative\” intent, it is reasonable to conclude thatcost-effectiveness was a factor in the determination of feasibilityunder Walsh-Healey, and remains so as incorporated into the OccupationalSafety and Health Act.To prove a violation, therefore, the Secretary must prove that proposedengineering and administrative controls are both technologically andeconomically feasible. As the Ninth Circuit recognized in _Castle &Cooke_, \”realism and common sense should dictate how the Secretary maymeet his burden of providing substantial evidence of feasibility.\” 692F.2d at 650. After the Secretary proves that controls aretechnologically feasible, the burden of producing evidence shifts to theemployer, who may raise the issue of economic feasibility and go forwardwith evidence of the cost of controls and personal protectiveequipment. The burden of producing evidence then returns to theSecretary \”who must establish that the benefit of the proposedengineering controls justifies their relative cost in comparison toother abatement methods.\” _Id_. The ultimate burden of persuasion onthe feasibility issue nevertheless remains with the Secretary.Sherwin-Williams established and the judge found that the controls wouldcost $1,200,000 plus $200,000 per year for lost production and increasedmaintenance, which amounts to $4,286 per employee plus $714 per employeeper year.[[7]] It was also stipulated that the cost of personalprotective equipment was approximately $4,000 per year. The evidencedemonstrates that the earplugs worn by Sherwin-Williams’ employees werecapable of reducing sound levels below the levels specified in TableG-16. Sherwin-Williams demonstrated that all of its employees wererequired to wear earplugs or earmuffs and that they were subject todiscipline if the controls were not worn. Dr. Hildyard testified thatup to a 30 dBA reduction in noise levels could be achieved if earplugswere properly worn. The expert testimony elicited by the Secretaryquestioned the efficacy of earplugs because of employee reluctance towear the plugs. Dr. Tobias conceded, however, that reductions to soundlevels below 90 decibels could be expected. The testimony of employeesreveals that shortcomings exist in Sherwin-Williams’ personal protectiveequipment program but they do not affect the conclusion that the wearingof earplugs by Sherwin-Williams’ employees reduced sound levelsexperienced by employees within Table G-16 limits.While engineering controls would significantly reduce noiseexposure,[[8]] the Secretary has failed to demonstrate that the benefitsthat will be achieved by the controls justify the cost of implementingthem. His contention that the cost of controls are feasible herebecause they are less expensive than those found feasible by theCommission in _Carnation_ would turn the cost-benefit approach to theimplementation of noise controls into a rigid formula. We first notethat _Carnation_ did not represent a majority application of the_Continental Can_ cost-benefit test. Commissioner Cleary did notconsider the cost of controls in determining that the controls werefeasible. Chairman Barnako, upon whose opinion the Secretary relies,did not apply a rigid formula in _Carnation_. On the contrary, in_Carnation_ he observed that in the two other cases, _Continental Can_and _Castle & Cooke_, he had found that the benefits to be gained wereoutweighed by the costs even though the cost per employee wassignificantly less than that in the _Carnation_ case. 6 BNA OSHC at 1738n.19, 1976-77 CCH OSHD at p. 27,624 n.19. In this case, the cost peremployee is even greater than that in _Continental Can_ and _Castle &Cooke._ Chairman Barnako also noted that, unlike the other two cases,_Carnation_ involved no annual or continuing costs, and the total costof compliance was less than $100,000. 6 BNA OSHC at 1738, 1976-77 CCHOSHD at p. 27,624. Here, the total cost is many times higher andsignificant continuing costs will be incurred.I agree with the judge that in this case the Secretary failed to provethe feasibility of controls by a preponderance of the evidence. As theFifth, Sixth, Seventh and Ninth Circuits have held in numerousdecisions, engineering and administrative controls are not feasiblewithin the meaning of section 1910.95(b)(1) if their costs are notjustified by their expected benefits. _Sun Ship_ is overruled. Thejudge’s decision vacating the citation is therefore affirmed.VThe judge denied a motion by the Secretary to amend the citation to alsoallege that Sherwin-Williams violated former section 1910.95(b)(3),[[9]]the old hearing conservation standard. He stated that the evidence didnot support a violation and that Sherwin-Williams lacked notice becauseit might have introduced other experts had it realized that the \”valueof [its] . . . conservation program was at issue.\”The union has urged the Commission to overrule the judge and grant theSecretary’s motion to amend the citation. However, the Secretary haswithdrawn this allegation and the motion to amend. Chairman Rowland andI affirm the judge’s disposition denying the motion. When the Secretarychooses not to amend his complaint to allege a possible violation of theAct, the authorized employee representative may not prosecute adifferent allegation or compel the Secretary to do so. _See_ _Marshallv. OSHRC (IMC_ _Chemical Group_), 635 F.2d 544, 552 (6th Cir. 1980). _Cf_. _American Bakeries_, 84 OSAHRC _\/_, 11 BNA OSHC 2024, 1984 CCHOSHD ? _____ (No. 83-131, 1984); (a union may not object to withdrawalof citation); _Copperweld Steel Co_., No. 79-2600 (June 29, 1984) (same).Accordingly,the citation alleging a violation of 29 C.F.R. ?1910.95(b)(1) is vacated. The motion to amend the citation to allege aviolation of section 1910.95(b)(3) is denied.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JUL 20 1984ROWLAND, Chairman, concurring:In _Sun Ship, Inc_., 82 OSAHRC 69\/A2, 11 BNA OSHC 1028, 1983 CCH OSHD ?26,353 (No. 16118, 1982) (dissenting opinion), I found that section1910.95(b)(1)’s requirement that \”feasible\” engineering andadministrative controls be used is unenforceable. I reasoned that thestandard lacks ascertainable criteria for its enforcement and thatauthority was impermissibly delegated to the Commission to decide whatthe standard means. I still adhere to that view. However, unlessCommissioners Cleary and Buckley were to conclude that _Sun Ship_ wouldremain Commission precedent, _see_ _Samson Paper Bag Co_., 80 OSAHRC60\/A2, 8 BNA OSHC 1515, 1980 CCH OSHD ? 24,555 (No. 76-222, 1980), theparties and the Commission’s administrative law judges would have noclear guidance of what principles to apply. Moreover, as between thetest set forth in _Sun_ _Ship_ and the cost-benefit approach adopted byCommissioner Buckley, I believe the latter test represents the morereasoned result. As I stated in _Sun Ship_, the cost-benefit approachrepresents a \”good faith attempt to give genuine significance to costsof compliance with the noise standard.\” 11 BNA OSHC at 1042, 1983 CCHOSHD at p. 33,430. Similarly, in _Donovan v. Castle &_ _Cooke Foods_,77 OSAHRC 87\/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD ? 21,854 (No. 10925,1977), _aff’d_, 692 F.2d 641 (9th Cir. 1982), the Ninth Circuit stated:We view the Commission’s [cost-benefit] interpretation of \”feasible\” asa reasonable reconciliation of the regulation’s language and thestatute’s \”reasonably necessary\” requirement.. . . the [cost-benefit] test provides a realistic view of the range ofhazards from which employees require protection and the alternate meansof providing that protection, and recognizes that the Act does not\”require employers to provide absolutely risk-free workplaces wheneverit is technologically feasible to do so. . ._Id_. at 649. I therefore join with Commissioner Buckley in overrulingthe Commission’s decision in _Sun Ship_ and adopting the cost-benefitapproach as set forth by Commissioner Buckley in his decision.CLEARY, Commissioner, dissenting:By its decision the majority virtually eliminates engineering controlsfrom the noise standard. This is neither consistent with the languageand purpose of the Act nor within the Commission’s power.The definition of economic feasibility established in _Sun Ship_ is theproper one: engineering and administrative controls are economicallyfeasible if they do not threaten the employer’s long-term profitabilityand competitiveness or, in the event of economic threat, do so becausethe employer has lagged behind its industry in providing noiseprotection for employees. _Sun Ship, Inc_., OSAHRC 69\/A2, 11 BNA OSHC1028, 1983 CCH OSHD ? 26,353 (No. 16118, 1982).On this record there can be little question that the Secretary hasestablished the economic feasibility of engineering controls. Theadministrative law judge found that engineering controls would cost$1,800,000 over the three-year abatement period suggested by theSecretary, with lost production and maintenance cost thereafter of$200,000 per year.[[1]] This comes to a start-up cost of $5,000 peremployee during the first three years and $714 per employee annuallythereafter. During the relevant fiscal year, 1975, Sherwin-Williams hada net annual income of _over_ _twenty-eight_ _million_ _dollars_ and anincrease in working capital of _over_ _sixty_ _million_ _dollars_.[[2]]_Sun Ship_ is predicated on a basic rule of statutory construction: regulations are to be construed consistent with the statutes under whichthey are promulgated and when terms are not defined in their regulatorycontext they must be interpreted in accord with underlying Congressionalpurpose. _United States v. American Trucking Associations_, 310 U.S.534, 542 (1940). Moreover, unless a different intent is clearlyevident, the same statutory terms are to be given the same meaning,_Chugach Natives, Inc. v. Doyon_ _Ltd_., 588 F.2d 723 (9th Cir. 1979)(and cases cited therein), and regulatory language should be given thesame meaning as the language appearing in the statute. _See_ _BaroidDiv. of N.L. Industries, Inc. v. OSAHRC_, 660 F.2d 439, 447 (10th Cir.1981), and _RMI Co. v. Secretary of Labor_, 594 F.2d 566 (6th Cir. 1979)(in which the statutory and regulatory uses of \”feasible\” are viewed assynonymous). Accordingly, in _Sun Ship_ the Commission looked toevidence of Congressional intent for guidance as to the meaning offeasible noise controls.The noise standard was promulgated pursuant to section 6(a), 29 U.S.C. ?655(a), of the Act, which does not use the word feasible. \”Feasible\”does, however, appear in section 6(b)(5), 29 U.S.C. ? 655(b)(5), whichempowers the Secretary to promulgate standards for toxic substances andharmful physical agents. Therefore, the leading case on the question isthe Supreme Court decision, _American Textile Manufacturer Institute,Inc. v. Donovan_, 452 U.S. 490 (1981) (\”_ATMI_\”). In _ATMI_, the Courtconsidered the meaning of feasible as it is used in section 6(b)(5). The Court concluded that the plain meaning of feasible is \”capable ofbeing done,\” \”achievable,\” and that therefore it cannot be understood toincorporate a cost-benefit test unless that was Congress’s intent. Forevidence of Congress’s intent the Court looked both to Congressionalpractice generally and to the legislative history of the OccupationalSafety and Health Act and concluded that Congress did not think offeasibility in cost-benefit terms. \”When Congress has intended that anagency engage in cost-benefit analysis, it has clearly indicated suchintent on the face of the statute.\” 452 U.S. at 510. Moreover, \”[t]helegislative history of the Act, while concededly not crystal clear,provides general support for. . . [the conclusion that ‘feasible’ doesnot require cost-benefit analysis].\” 452 U.S. at 514.Nowhere is there any indication that Congress contemplated a differentbalancing by OSHA of the benefits of worker health and safety againstthe costs of achieving them. Indeed Congress thought that the_financial_ _costs_ of health and safety problems in the workplace wereas large or larger than the _financial_ _costs_ of eliminating theseproblems. In its statement of findings and declaration of purposeencompassed in the Act itself, Congress announced that \”personalinjuries and illnesses arising out of work situations impose asubstantial burden upon, and are a hindrance to, interstate commerce interms of lost production, wage loss, medical expenses, and disabilitycompensation payments.\” 29 U.S.C. ? 651(a).452 U.S. at 522-523 (emphasis in original).Because the noise standard was originally promulgated under theWalsh-Healey Government Contracts Act, 41 U.S.C. ?? 34-35 (the\”Walsh-Healy Act\”) and only later incorporated by the Secretary of Laborinto the Occupational Safety and Health Act, the _Sun_ _Ship_ Commissionalso examined Walsh-Healey’s legislative history for evidence thatCongress thought of feasibility in terms of cost-benefit analysis. Asconceded in the majority, there is no evidence that the Walsh-HealeyCongress intended feasibility to depend on cost-benefit.[[3]]The majority attaches great significance to the Ninth Circuit’s decisionin _Donovan v. Castle & Cooke Foods_, 692 F.2d 641 (9th Cir. 1982), inwhich the Circuit Court held that _ATMI_ does not require the Commissionto abandon the cost benefit approach because _ATMI_ deals with adifferent section of the Occupational Safety and Health Act than isinvolved in the noise standard. (_ATMI_ involves section 6(b)(5), 29U.S.C. ? 655(b)(5), which empowers the Secretary to engage insubstantive rulemaking for toxic substances and harmful physical agents,whereas the noise standard involves section 6(a), 29 U.S.C. ? 655(a),which directs the Secretary to adopt existing federal standards.)[[4]] In the first place, the Ninth Circuit began its analysis from apresumption of deference to the Commission’s cost-benefit analysissimply because it was then-prevailing precedent. In the second place,the Court held merely that _ATMI_ did not _require_ abandonment ofcost-benefit. Finally, and most importantly, the fact that there aredifferent types of OSHA standards simply does not bear on the questionof the meaning of feasibility. The Supreme Court has said that the wordhas a commonly understood meaning which is not contradicted by statute,regulation or legislative history. Therefore, there is no basis forgrafting cost-benefit onto the term, whether the Act provides for onetype of standard or a hundred.Perhaps even more important than the statutory construction aspect ofthis case is the fact that the majority virtually eliminates engineeringcontrols from the noise standard. The standard explicitly prefersadministrative and engineering controls over personal protectiveequipment; only to the extent that administrative and engineeringcontrols will not bring noise levels under prescribed levels may anemployer rely on personal protective equipment. One of the majority’sprincipal reasons for holding that engineering controls are economicallyinfeasible for this company is that they would be more expensive thanpersonal protective equipment. It will be the rare case indeed whenacoustical panels, machine enclosures, sound absorptive barriers andsimilar engineering devices do not cost more than wax earplugs andwoolly earmuffs. The practical effect, therefore, of the majoritydecision is to strip the noise standard of its primary abatementrequirement.[[5]] This exceeds the Commission’s authority. TheCommission has no power to rewrite the Secretary’s standards because itprefers a means of abatement other than that chosen by the Secretary. _Budd_ _Co_., 1 BNA OSHC 1548, 1973-74 CCH OSHD ? 17,387 (Nos. 199 &215, 1974), _aff’d_, _sub_ _nom_. _Budd Co. v. OSAHRC_, 513 F.2d 201 (3dCir. 1975); _see_ _also_ _Castle & Cooke Foods_, 77 OSAHRC 87\/A2, 5 BNAOSHC 1435, 1442, 1977-78 CCH OSHD ? 21,854, (No. 10925, 1977) (Cleary,dissenting), _aff’d_, 692 F.2d 641 (9th Cir. 1982).Although the majority opinion suggests otherwise, it is possible to giveeffect to the standard’s preference for engineering controls overpersonal protective equipment without ignoring economic reality anddriving companies into bankruptcy. I suggested in _Sun_ _Ship_ a rangeof economic factors that should be considered before engineeringcontrols are required, including the competitive structure of theindustry involved, the competition that the industry faces from otherindustries or other countries, inflation, the ability of the company toraise capital, its ability to alter employee work schedules andassignments, its other capital investment requirements, energy costs,etc. 11 BNA 1033 at n.12. Moreover, it would be possible in most casesto alleviate the employer’s financial hardship by extending the timerequired for installation of controls.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] This standard provides:? 1910.95 _Occupational noise exposure_.* * *(b)(1) When employees are subjected to sound levels exceeding thoselisted in Table G-16, feasible administrative or engineering controlsshall be utilized. If such controls fail to reduce sound levels withinthe 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 EXPOSURESDuration per day, hours \tSoundlevel dBAslowresponse8…………………………………………………….. \t906………………………………………………………\t924…………………………………………………….. \t953…………………………………………………….. \t972…………………………………………………….. \t1001 1\/2 ………………………………………………. \t1021…………………………………………………….. \t1051\/2 …………………………………………………. \t1101\/4 or less ………………………………………… \t115(Footnote omitted.)[[2]] Sherwin-Williams did not brief the issue of the technologicalfeasibility of engineering controls. Sherwin-Williams simply notes inits brief that it does not \”waive\” its position that the Secretary hadfailed to prove that engineering controls were technologically feasible.[[3]] Sherwin-Williams apparently concedes that the judge’s last twofigures were in error, and that they should have been $200,000 and $714respectively.[[4]] Section 6(b)(5) provides in pertinent part:The Secretary in promulgating standards dealing with toxic materials orharmful physical agents under this subsection, shall set the standardwhich most adequately assures, to the extent feasible, on the basis ofthe best available evidence, that no employee will suffer materialimpairment of health or functional capacity. . . .[[5]] Webster’s New Collegiate Dictionary 415 (1979).[[6]] An example of this sense of practicality is illustrated by thereasoning in _Southland Mfg. Corp._, 75-1 CCH Cont. App. Dec. ? 10,994(AS No. 16830, 1974), which resolved a contract dispute under theWalsh-Healey Act. There, the government claimed that the only issue indetermining whether machinery was reasonably capable of being convertedto another use was whether it could be physically so converted. Theclaim was rejected because the government’s approach left no room forconsidering whether conversion was \”economically feasible.\” Thegovernment’s argument was characterized as unrealistic because allfactors, particularly the cost of conversion, should be considered indetermining whether it was feasible to convert machinery. _Id_. at p.52,357.[[7]] The judge’s rejection of the Secretary’s contention that thecontrols would not affect production or require additional maintenanceis supported by the evidence. These are the types of additional coststhat must be considered in determining whether controls are economicallyfeasible. _Continental Can_, 4 BNA OSHC at 1548, 1976-77 CCH OSHD at p.25,257.[[8]] Although the Secretary’s expert Pelton testified that the controlswould reduce sound exposure below Table G-16 levels, the judge found itunnecessary to make specific findings on the reductions that would beachieved because he decided that, even if the reduction in sound was notas great as the Secretary’s expert believed, the reduction would stillbe significant. The parties do not take issue with this determination. I reserve judgment on whether the Secretary can establish a _prima__facie_ case of technological feasibility without demonstrating thatengineering controls will reduce sound exposure within Table G-16levels. _See_ _Continental_ _Can_, 4 BNA at 1545 n.13 and 1549 n.18,1976-77 CCH OSHD at pp. 25,255 n.13 and 25,258 n.18 (concurring opinion).[[9]] ? 1910.95 _Occupational noise exposure_.* * *[(b)](3) In all cases where the sound levels exceed the values shown in[Table G-16] a continuing, effective hearing conservation program shallbe administered.[[1]] The Secretary disputes the judge’s cost findings and contends thatthe actual costs would be less, particularly the cost of lost productionand maintenance. However, inasmuch as I find Sherwin-Williams well ableto absorb the costs estimated by the administrative law judge, I willnot decide the issue.[[2]] The majority concedes that even under Sherwin-Williams’ estimates,which are far lower than the Secretary’s, the proposed engineeringcontrols would achieve significant noise reductions and aretechnologically feasible.[[3]] The _Sun Ship_ Commission made no \”reasonable assumptions\” of whatgovernment contractors consider cost-effective. The Supreme court hassaid that a regulatory word is to be given its dictionary meaning unlessCongress intends otherwise. The ruminations of a mythical governmentcontractor cannot substitute for the rule of law.[[4]] Section 6(b)(5) provides in pertinent part:The Secretary in promulgating standards dealing with toxic materials orharmful physical agents under this subsection, shall set the standardwhich most adequately assures, to the extent feasible, on the basis ofthe best available evidence, that no employee will suffer materialimpairment of health or functional capacity. . . .Section 6(a) provides in pertinent part:The Secretary shall. . .by rule promulgated as occupational safety orhealth standard. . .any established Federal standard. . . ._See_ _also_ ? 4(b)(2), 29 U.S.C. ? 653(b)(2) which provides inpertinent part:Standards promulgated under the Walsh-Healey Act. . .and in effect on orafter the date of this Act shall be deemed to be occupational safety andhealth standards issued under this Act.It would not be too much to say that by section 4(b)(2) Congressspecifically ratified the preference for noise control by engineeringmethods in the Walsh-Healey noise standard.[[5]] The preference for engineering controls is a wise one. Excessivenoise can have adverse effects other than hearing loss, includingharmful changes in cardiovascular, endocrine and neurologic functions. _See_ _generally_ _Criteria Document_ at IV 10-V 16, of which I wouldtake official notice. Complaints of fatigue, irritability, and socialconflict as a result of exposure to excessive noise have beendocumented. A consequent reduction in job performance also has beenrecorded. _See_ _generally_ _Criteria Document_ at IV 9-14. Andemployees testified in this case that inability to hear over the dinmade it difficult for them to hear work orders, to monitor the operationof machines, and to hear and respond to safety warnings or dangerousmachine breakdowns.Moreover, earplugs and muffs have significant limitations. They aresubject to employee resistance because they are uncomfortable. Not allemployees can benefit from them. The Secretary put on expert testimonythat noise reduction achieved by earplugs in actual use is less thanhalf the attenuation achieved in laboratory tests. This has beenrecently borne out by a NIOSH-CDC study to the same effect. HearingProtectors Field Measurement, _Morbidity and Mortality Weekly Report_,607 (Nov. 19, 1982).”