“Docket No. 14131 SECRETARY OF LABOR,Complainant, v.THE SHERWIN WILLIAMS COMPANY, Respondent. OIL, CHEMICAL AND ATOMIC WORKERSINTERNATIONAL UNION AND ITS LOCAL 7-268,Authorized Employee Representative.OSHRC Docket No. 14131DECISION Before:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BUCKLEY, Commissioner: This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration.\u00a0 It was established to resolvedisputes arising out of enforcement actions brought by the Secretary of Labor under theAct and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C.? 659(c).The primary issue on review is whetherengineering controls proposed by the Secretary to reduce noise at Sherwin-Williams’ plantare \”feasible\” within the meaning of the occupational noise standard at 29C.F.R. ? 1910.95(b)(1).[[1]]\u00a0 The judge found that the controls were not feasibleand vacated a citation alleging a violation of the standard.\u00a0 For reasons given inour separate opinions, Chairman Rowland and I affirm the judge’s decision. ISherwin-Williams was cited for failing to use engineering controls to reduce noise levelsat its Chicago, Illinois can manufacturing plant.\u00a0 The judge described the canproduction process as follows:The operation is housed in two multi-storybuildings.\u00a0 There are 33 punch presses which make various can components, lids, tops,bottoms, handles, the ears to which bails attach and top rings.\u00a0 There are sevencontinuous can making production lines which fabricate metal cans of various sizes andshapes.\u00a0 A typical can making line begins with a machine called a feeder-slitter.\u00a0This machine is used to cut tinplate sheet metal into blanks of proper size to beformed in the next machine into a can body.\u00a0 The bodymaker is a press which forms theflat plate, usually into a cylinder which is then joined at the edges.\u00a0 Sometimes theears are added.\u00a0 The body moves next to a flanger where the top and bottom edge arecrimped.\u00a0 It then passes to a seamer where the ends are attached.\u00a0 In some linesthe next step is to a doper where a plastic sealant lining is sprayed inside the can.\u00a0 The finished can is then passe[d] to a tester for air pressure checking for leaks,then on to packing tables for placement by hand into cardboard cases. Movement fromstation to station is continuous along metal tracks drops and chutes with the cans beingpropelled by means of moving belts and chains, gravity, vibrators and with the can beingturned by air jets, magnets and cans.\u00a0 Employees attend each operation and observethe conveyor lines.The parties stipulated that 250-280Sherwin-Williams employees \”work in ambient sound levels for periods of time whichare in excess of levels set forth in Table G-16,\” and that administrative controls toreduce or eliminate the excessive noise are not feasible. The sound levels range from 84to 112 dBA.The Secretary presented Howard Pelton as anexpert witness on the feasibility of engineering controls.\u00a0 Pelton was an acousticalengineer, noise consultant and designer of industrial noise controls.\u00a0 He hadconducted more than 300 noise surveys, some of which involved can manufacturing plants.\u00a0 He was designing industrial noise controls for a can manufacturing plant at thetime of the hearing but had not previously designed controls that had been implemented ina can manufacturing plant.\u00a0 Pelton conducted an extensive noise survey atSherwin-Williams’ plant.\u00a0 He testified that engineering controls could be installedthat would bring noise levels to 85-88 dBA throughout the plant.\u00a0 He proposed anumber of methods for dealing with the many different types of machine. These methodsincluded the installation of acoustical panels, enclosure and partial enclosure ofmachines, the hanging of acoustical baffles from the ceiling and the placement of soundabsorptive barriers between machines.\u00a0 Pelton also recommended the installation ofair silencers, the coating of moving parts with urethane, the redesign of certainmachinery, and the tightening of loose parts.\u00a0 Pelton did not actually constructprototypes of any of his recommended abatement methods.\u00a0 Pelton estimated that laborand materials for the controls would cost approximately $885,590.\u00a0 He did notconsider the details of how his proposals would affect maintenance or production but didstate that there would be no increase in costs due to increased maintenance or losses inproduction.Benson, an electrical engineer who designednoise control systems, testified for Sherwin-Williams on the feasibility of the noisecontrols recommended by the Secretary.\u00a0 Benson testified that Pelton had developedconcepts for noise reduction, but had not made calculations that would have demonstratedthat his concepts would abate noise levels to the degree he claimed.\u00a0 Using thedrawings of controls made by Pelton, Benson calculated the sound levels that Pelton’srecommendations would actually achieve at four types of machine.\u00a0 Benson testifiedthat Pelton’s recommendations would not result in reductions to within Table G-16 limits.Four of Sherwin-Williams’ witnesses testified on the cost of Pelton’s controls. \u00a0Monchunski, a sales engineer for a metal fabricating company, testified that it would cost$1,028,451 for the materials and labor needed to realize Pelton’s recommendations.Chimmens, Sherwin-Williams’ chief industrial engineer, testified that the extra manpowerand lost production resulting from the installation of the controls would cost anadditional $201,252.\u00a0 He testified that coating the tracks of the conveyors withplastic would cost $20,000.\u00a0 Willer, a master mechanic for Sherwin-Williams,testified that additional maintenance costs, including the wages of an additionalmachinist, would require more than $32,000 per year.\u00a0 Drogos, the liaison engineerfor Sherwin-Williams, estimated that the engineering time required to implement Pelton’scontrols and the scrapping of existing guards would cost $340,000.The Secretary introduced three expert witnesseson the effectiveness of ear plugs generally and as used by Sherwin-Williams. WilliamPlotkin, Ph.D., the executive director of the Chicago Hearing Society, had an extensivebackground in audiological testing. He testified that Sherwin-Williams’ hearingconservation program was not effective and did not protect the hearing of its employees.Plotkin stated that some of Sherwin-Williams employees would suffer hearing loss if theycontinued to work in present sound levels. Both J.V. Tobias, Ph.D., an expert inpsycho-acoustics and audiology, and John Fletcher, Ph.D., a researcher in otolaryngologywere in agreement with Plotkin’s assessment of Sherwin-Williams’ program.\u00a0 Fletcherand Tobias stated that a combination of engineering controls and personal protectiveequipment was required to prevent employee hearing loss in the presence of excessivenoise.\u00a0 From the audiometric records, Fletcher identified 15 employees who hadsuffered hearing loss.\u00a0 Tobias also testified that if \”Peacekeeper\”earplugs were properly worn by employees exposed to a noise level of 95 dBA, he wouldexpect 50% of the employees to be exposed to less than 80 dBA and 94% of the employees tobe exposed to less than 90 dBA.\u00a0 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 ofotolaryngology at the University of Colorado Medical School, testified forSherwin-Williams.\u00a0 According to Dr. Hildyard, earplugs are an effective method ofpreventing hearing loss.\u00a0 He identified 35 of the 378 employees tested as havingpossibly suffered hearing loss, but stated that the hearing loss suffered bySherwin-Williams’ employees as a whole was comparable to that experienced by a similargroup at sound levels of 80 dBA.\u00a0 He stated that an employee exposed to sound levelsof 108 dBA could receive a 30 dBA reduction in noise exposure if earplugs were worn.\u00a0He testified that it was not necessarily more advantageous to use engineeringcontrols to reduce sound levels from 108 decibels to below 90 decibels when this 30decibel reduction was available.Thirteen of Sherwin-Williams’ employeestestified on the Secretary’s behalf regarding the wearing of earplugs and earmuffs at theplant.\u00a0 They testified to a number of complaints that they attributed to the wearingof earplugs, including discomfort, difficulty in communication, hearing loss, difficultyin determining the source of sounds, and ear infections.\u00a0 There was also testimonythat employees took earplugs out during the workday and altered the plugs to make thenmore comfortable.\u00a0 Three employees also testified, however, that the failure to wearearplugs was a serious breach of Sherwin-Williams’ safety rules.II The administrative law judge vacated the citation.\u00a0 Relying on the Commission’sdecisions in Continental Can Co., 76 OSAHRC 109\/A2, 4 BNA OSHC 1541, 1976-77 CCHOSHD ? 21,009 (No. 3973, 1976), and Castle & Cooke Foods, 77 OSAHRC 87\/A2, 5BNA OSHC 1435, 1977-78 CCH OSHD ? 21,854 (No. 10925, 1977), aff’d, 692 F.2d 641(9th Cir. 1982), he found that the engineering controls proposed by the Secretary weretechnologically feasible but were not economically feasible because the benefits to begained did not justify the cost of controls.[[2]]The judge found that Pelton’s predictions thatcontrols would reduce levels below 90 dBA were \”well founded\” and that evenBenson’s testimony indicated that Pelton’s controls would accomplish a\”substantial\” reduction.\u00a0 The judge also found that \”[t]he properwearing of earplugs or earmuffs would have reduced the sound levels reaching employees’eardrums to less than 90 dBA.\” The judge determined that the controls would cost$1,800,000, or $6,249 per employee, including $1,000,000 for labor and materials, $200,000for engineering, and $200,000 per year in lost production and increased maintenance costsfor the three years required to implement the program.\u00a0 He found that lost productionand increased maintenance would continue at an annual rate of $228,000 or $814 peremployee after the three year start-up period.[[3]]The Secretary argues that the proposedengineering controls are economically feasible because their costs would not jeopardizeSherwin-Williams’ financial position to the extent that it might be driven out ofbusiness, and because the increment in employee protection is significant compared to thecosts of controls.\u00a0 The Secretary and the authorized employee representative urgerejection of a Continental Can type of cost-benefit test, which requires that thebenefits of engineering controls justify their cost.The Secretary maintains that even under the ContinentalCan test, his proposed engineering controls are feasible.\u00a0 He claims that thecontrols, which would initially cost $4,286 per employee and would under the employer’sown evidence cost an additional $714 per employee per year (see note 3 supra), costless per employee than the controls in Carnation Co., 78 OSAHRC 54\/D9, 6 BNA OSHC1730, 1978 CCH OSHD ? 22,837 (No. 8165, 1978), aff’d, 641 F.2d 801 (9th Cir.1981). \u00a0In that case, one Commissioner found that the benefit of engineering controlsoutweighed the costs where the total costs were less than $100,000.\u00a0 The Secretaryalso takes exception to the judge’s finding that losses in production and increasedmaintenance costs would cost Sherwin-Williams $200,000 per year.\u00a0 He relies onPelton’s testimony that the controls are compatible with Sherwin-Williams’ existingproduction process and therefore that no additional annual costs would be incurred.Sherwin-Williams urges the Commission to affirmthe judge’s application of the cost-benefit test announced in Continental Can and Castle& Cooke.\u00a0 It also contends that it was reasonable to expect that Pelton’senclosures would cause losses in production and add to the maintenance costs.\u00a0Sherwin-Williams urges the Commission to adopt the judge’s finding that thesefactors would cost an additional $200,000 per year.Sherwin-Williams contends that it has aneffective hearing conservation program.\u00a0 It relies on the results of the audiometrictests it administered and on the testimony of Dr. Hildyard that the hearing ofSherwin-Williams’ employees was equivalent to that of a group of people working in ambientnoise levels of about 80 dBA.\u00a0 Sherwin-Williams also relies on Dr. Tobias’ testimonythat the proper wearing of the Peacemaker type of earplugs by its employees will result inexposure below 80 dBA for more than 95% of its employees.\u00a0 Sherwin-Williams claimsthat testimony from its employees about the negative aspects of wearing earplugs does notestablish that wearing earplugs caused infections, or, because Table G-16 allows shortexposures to excessive sound levels, that employees who occasionally removed earplugswould suffer hearing loss as a result.III The Commission last interpreted the word \”feasible\” in section 1910.95(b)(1) in SunShip, Inc., 82 OSAHRC 69\/A2, 11 BNA OSHC 1028, 1983 CCH OSHD ? 26,353 (No. 16118,1982).\u00a0 There, the Commission overruled Continental Can’s holding that theSecretary must demonstrate that the benefits to be achieved by engineering oradministrative controls justify the costs of the controls.\u00a0 It adopted aninterpretation of \”feasible\” similar to that advocated by the Secretary in hisbrief on review in this case.\u00a0 Sun Ship held that the Secretary mustdemonstrate that the cost of administrative and engineering controls will not threaten thelong-term profitability and competitiveness of the employer, or show that the employer’sdifficulty in affording the controls is a result of his inability to keep up with safepractices in his industry.\u00a0 In concluding that section 1910.95(b)(1) is notsusceptible to cost-benefit analysis, Sun Ship relied on the definition of\”feasible\” given by the Supreme Court in American Textile Manufacturers Institutev. Donovan, 452 U.S. 490 (1981) (\”ATMI\”).\u00a0 In ATMI, theSupreme Court held that \”feasible\” as it 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 requirea weighing of costs and benefits.By contrast, in a decision issued shortly beforeSun Ship, the Ninth Circuit affirmed the Commission’s decision in Castle &Cooke applying a cost-benefit analysis.\u00a0 Donovan v. Castle & Cooke Food,692 F.2d 641 (9th Cir. 1982).\u00a0 The Ninth Circuit reached a different conclusion thandid the majority in Sun Ship, noting that the ATMI decision limited itsconstruction of \”feasible\” to standards promulgated under section 6(b)(5) of theAct, \”a distinct ‘species of the genus of standards governed by the basicrequirement’ of the Act.\” 692 F.2d at 648, quoting Industrial UnionDepartment v. American Petroleum Institute, 448 U.S. 607, 642 (1980).\u00a0 TheSupreme Court expressly reserved judgment on how section 3(8) of the Act, 29 U.S.C. ?652(8), might affect the promulgation of standards under other provisions of theAct.\u00a0 ATMI, 452 U.S. at 513 n.32.\u00a0 That section defines an\”occupational safety and health standard\” as a standard that requires\”reasonably necessary or appropriate\” measures.\u00a0 Thus, the Ninth Circuitheld that the Commission was not required by ATMI to abandon the cost-benefitapproach of Continental Can, which had been upheld by every court of appeals thatconsidered it.\u00a0 See Carnation Co. v. Secretary of Labor, 641 F.2d 801(9th Cir. 1981); International Harvester Co. v. OSHRC, 628 F.2d 982 (7thCir. 1980); RMI Company v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979); Marshallv. West Point Pepperell, Inc., 588 F.2d 979 (5th Cir. 1979); Turner Co. v.Secretary of Labor, 561 F.2d 82 (7th Cir. 1977).\u00a0 Since this case was briefed,the Secretary has accepted the cost-benefit approach to noise standard enforcementaffirmed by the Ninth Circuit in Castle & Cooke.\u00a0 See OSHA Instruction CPL2-2.35A (Nov. 9, 1983) (prescribing new enforcement policies), reprinted in 1 BNAOSHR Reference File 21:8312, 1984 CCH Emp. S&H Guide Developments ? 8019; 13 BNA OSHRCurrent Reports 1294 (May 3, 1984).\u00a0 For these reasons, the Commission’s decision in SunShip should be reexamined.IV Section 1910.95(b)(1) is derived from 41 C.F.R. ? 50-204.10, a noise standard that wasoriginally promulgated under the Walsh-Healey Government Contracts Act, 41 U.S.C. ??35-45 (\”the Walsh-Healey Act\”).\u00a0 The Walsh-Healey Act requires thatcontracts with the federal government for materials in amounts over $10,000 provide that\”no part of such contract will be performed . . . under working conditions which areunsanitary or hazardous or dangerous to the health and safety of employees engaged in theperformance of said contract.\”\u00a0 Section 1(e), 41 U.S.C. ? 35(e).\u00a0 TheSecretary of Labor is authorized to adopt rules and regulations to carry out the statute.\u00a0 Section 4, 41 U.S.C. ? 38.\u00a0 In the event of a breach of the provisions of theWalsh-Healey Act or the rules promulgated under it, the agency involved \”shall havethe right to cancel [the contract].\”\u00a0 Section 2, 41 U.S.C. ? 36.\u00a0 TheWalsh-Healey Act also requires that the name of the breaching contractor be placed on alist of persons or firms to which \”no contracts shall be awarded . . . until threeyears have elapsed from the date the Secretary determines such breach to haveoccurred.\”\u00a0 Section 3, 41 U.S.C. ? 37.While the Walsh-Healey background of the noise standard does not reflect any regulative oradjudicative history suggesting the intent of its redactors, it is possible to reach someconclusions about what was understood by the word \”feasible.\”\u00a0 The noisestandard was one of a body of regulations governing the relationship between thegovernment as contractor and businessmen who dealt with it.\u00a0 Costs imposed byWalsh-Healey regulations were reflected in the bids that contractors submitted tocontracting government agencies.\u00a0 In determining whether to bid, and in preparingtheir bids, these contractors were subject to a variety of constraints requiring basiceconomic and financial decisions.\u00a0 If they allocated a great deal of money to reducenoise by engineering controls, they might drive up their bid and fail to secure acontract.\u00a0 If they did not reduce noise through feasible engineering controls andwere the successful bidder, they might be prosecuted under the Walsh-Healey Act’senforcement scheme and be exposed to sanctions, which might strip them of the contract andblacklist them for three years.\u00a0 Of course, such prospective bidders retained theoption of not entering the bid competition if they deemed the constraints to be tooburdensome.\u00a0 Unlike the costs imposed by the prevailing wage, working hours, childand convict labor, and personal protective equipment requirements of the Walsh-Healey Actand standards, the costs imposed by the engineering control requirement would have beendifficult to predict, for the noise standard furnished little guidance on where the LaborDepartment would draw the line between feasibility and infeasibility. Accordingly, itseems reasonable to predicate that government contractors, like all businessmen, would notapply to the word \”feasible\” the meaning commonly given in dictionaries, i.e.,as merely \”capable of being done or carried out,\”[[5]] but rather would apply toit a sense of practicality and determine not just whether noise reduction could beaccomplished but whether it could be done in a cost-effective manner.[[6]]\u00a0Government contractors, as well as the contracting agencies, would have understoodthat employing a dictionary definition of feasible would have been self-defeating, for itwould have required noise to be reduced even to the point of depriving the government ofcontractors or depriving contractors of a reasonable profit.It is therefore highly unlikely that thegovernment would have intended, or government contractors would have understood, thatengineering controls were to be implemented without regard to their benefits.\u00a0 A morereasonable assumption is that a government contractor would decide whether administrativeor engineering controls were \”feasible\” in the same way he would determine if itwere practical and cost-effective to use certain materials for a job on which he waspreparing a bid.\u00a0 He would consider the costs of tools and materials and theirmarginal utility and strike a balance between them.\u00a0 Absent any clear indication of\”legislative\” intent, it is reasonable to conclude that cost-effectiveness was afactor in the determination of feasibility under Walsh-Healey, and remains so asincorporated into the Occupational Safety and Health Act.To prove a violation, therefore, the Secretary must prove that proposed engineering andadministrative controls are both technologically and economically feasible.\u00a0 As theNinth Circuit recognized in Castle & Cooke, \”realism and common senseshould dictate how the Secretary may meet his burden of providing substantial evidence offeasibility.\”\u00a0 692 F.2d at 650.\u00a0 After the Secretary proves that controlsare technologically feasible, the burden of producing evidence shifts to the employer, whomay raise the issue of economic feasibility and go forward with evidence of the cost ofcontrols and personal protective equipment.\u00a0 The burden of producing evidence thenreturns to the Secretary \”who must establish that the benefit of the proposedengineering controls justifies their relative cost in comparison to other abatementmethods.\”\u00a0 Id.\u00a0 The ultimate burden of persuasion on the feasibilityissue nevertheless remains with the Secretary.Sherwin-Williams established and the judge foundthat the controls would cost $1,200,000 plus $200,000 per year for lost production andincreased maintenance, which amounts to $4,286 per employee plus $714 per employee peryear.[[7]]\u00a0 It was also stipulated that the cost of personal protective equipment wasapproximately $4,000 per year.\u00a0 The evidence demonstrates that the earplugs worn bySherwin-Williams’ employees were capable of reducing sound levels below the levelsspecified in Table G-16. Sherwin-Williams demonstrated that all of its employees wererequired to wear earplugs or earmuffs and that they were subject to discipline if thecontrols were not worn.\u00a0 Dr. Hildyard testified that up to a 30 dBA reduction innoise levels could be achieved if earplugs were properly worn.\u00a0 The expert testimonyelicited by the Secretary questioned the efficacy of earplugs because of employeereluctance to wear the plugs.\u00a0 Dr. Tobias conceded, however, that reductions to soundlevels below 90 decibels could be expected.\u00a0 The testimony of employees reveals thatshortcomings exist in Sherwin-Williams’ personal protective equipment program but they donot affect the conclusion that the wearing of earplugs by Sherwin-Williams’ employeesreduced sound levels experienced by employees within Table G-16 limits.While engineering controls would significantly reduce noise exposure,[[8]] the Secretaryhas failed to demonstrate that the benefits that will be achieved by the controls justifythe cost of implementing them.\u00a0 His contention that the cost of controls are feasiblehere because they are less expensive than those found feasible by the Commission in Carnationwould turn the cost-benefit approach to the implementation of noise controls into a rigidformula.\u00a0 We first note that Carnation did not represent a majorityapplication of the Continental Can cost-benefit test.\u00a0 Commissioner Cleary didnot consider the cost of controls in determining that the controls were feasible. \u00a0Chairman Barnako, upon whose opinion the Secretary relies, did not apply a rigid formulain Carnation.\u00a0 On the contrary, in Carnation he observed that in thetwo other cases, Continental Can and Castle & Cooke, he had found thatthe benefits to be gained were outweighed by the costs even though the cost per employeewas significantly less than that in the Carnation case. 6 BNA OSHC at 1738 n.19,1976-77 CCH OSHD at p. 27,624 n.19.\u00a0 In this case, the cost per employee is evengreater than that in Continental Can and Castle & Cooke. \u00a0 ChairmanBarnako also noted that, unlike the other two cases, Carnation involved no annualor continuing costs, and the total cost of compliance was less than $100,000.\u00a0 6 BNAOSHC at 1738, 1976-77 CCH OSHD at p. 27,624.\u00a0 Here, the total cost is many timeshigher and significant continuing costs will be incurred.I agree with the judge that in this case theSecretary failed to prove the feasibility of controls by a preponderance of the evidence.As the Fifth, Sixth, Seventh and Ninth Circuits have held in numerous decisions,engineering and administrative controls are not feasible within the meaning of section1910.95(b)(1) if their costs are not justified by their expected benefits.\u00a0 SunShip is overruled. The judge’s decision vacating the citation is therefore affirmed.V The judge denied a motion by the Secretary to amend the citation to also allege thatSherwin-Williams violated former section 1910.95(b)(3),[[9]] the old hearing conservationstandard.\u00a0 He stated that the evidence did not support a violation and thatSherwin-Williams lacked notice because it might have introduced other experts had itrealized that the \”value of [its] . . . conservation program was at issue.\”The union has urged the Commission to overrule the judge and grant the Secretary’s motionto amend the citation.\u00a0 However, the Secretary has withdrawn this allegation and themotion to amend.\u00a0 Chairman Rowland and I affirm the judge’s disposition denying themotion.\u00a0 When the Secretary chooses not to amend his complaint to allege a possibleviolation of the Act, the authorized employee representative may not prosecute a differentallegation or compel the Secretary to do so.\u00a0 See Marshall v. OSHRC (IMCChemical Group), 635 F.2d 544, 552 (6th Cir. 1980).\u00a0 Cf. AmericanBakeries, 84 OSAHRC _\/_, 11 BNA OSHC 2024, 1984 CCH OSHD ? _____ (No. 83-131, 1984);(a union may not object to withdrawal of citation); Copperweld Steel Co., No.79-2600 (June 29, 1984) (same).Accordingly,the citation alleging a violation of29 C.F.R. ? 1910.95(b)(1) is vacated.\u00a0 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:\u00a0 JUL 20 1984ROWLAND, Chairman, concurring:In Sun Ship, Inc., 82 OSAHRC 69\/A2, 11BNA OSHC 1028, 1983 CCH OSHD ? 26,353 (No. 16118, 1982) (dissenting opinion), I foundthat section 1910.95(b)(1)’s requirement that \”feasible\” engineering andadministrative controls be used is unenforceable.\u00a0 I reasoned that the standard lacksascertainable criteria for its enforcement and that authority was impermissibly delegatedto the Commission to decide what the standard means.\u00a0 I still adhere to that view.\u00a0However, unless Commissioners Cleary and Buckley were to conclude that Sun Shipwould remain Commission precedent, see Samson Paper Bag Co., 80 OSAHRC60\/A2, 8 BNA OSHC 1515, 1980 CCH OSHD ? 24,555 (No. 76-222, 1980), the parties and theCommission’s administrative law judges would have no clear guidance of what principles toapply.\u00a0 Moreover, as between the test set forth in Sun Ship and thecost-benefit approach adopted by Commissioner Buckley, I believe the latter testrepresents the more reasoned result. As I stated in Sun Ship, the cost-benefitapproach represents a \”good faith attempt to give genuine significance to costs ofcompliance with the noise standard.\”\u00a0 11 BNA OSHC at 1042, 1983 CCH OSHD at p.33,430.\u00a0 Similarly, in Donovan v. Castle & Cooke Foods, 77 OSAHRC87\/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD ? 21,854 (No. 10925, 1977), aff’d, 692F.2d 641 (9th Cir. 1982), the Ninth Circuit stated:We view the Commission’s [cost-benefit]interpretation of \”feasible\” as a reasonable reconciliation of the regulation’slanguage and the statute’s \”reasonably necessary\” requirement.. . . the [cost-benefit] test provides arealistic view of the range of hazards from which employees require protection and thealternate means of providing that protection, and recognizes that the Act does not\”require employers to provide absolutely risk-free workplaces whenever it istechnologically feasible to do so. . . Id. at 649.\u00a0 I therefore join withCommissioner Buckley in overruling the Commission’s decision in Sun Ship andadopting the cost-benefit approach as set forth by Commissioner Buckley in his decision.CLEARY, Commissioner, dissenting:By its decision the majority virtuallyeliminates engineering controls from the noise standard.\u00a0 This is neither consistentwith the language and purpose of the Act nor within the Commission’s power.The definition of economic feasibilityestablished in Sun Ship is the proper one:\u00a0 engineering and administrativecontrols are economically feasible if they do not threaten the employer’s long-termprofitability and competitiveness or, in the event of economic threat, do so because theemployer has lagged behind its industry in providing noise protection for employees.\u00a0 Sun Ship, Inc., OSAHRC 69\/A2, 11 BNA OSHC 1028, 1983 CCH OSHD ? 26,353 (No.16118, 1982).On this record there can be little question thatthe Secretary has established the economic feasibility of engineering controls.\u00a0 Theadministrative law judge found that engineering controls would cost $1,800,000 over thethree-year abatement period suggested by the Secretary, with lost production andmaintenance cost thereafter of $200,000 per year.[[1]]\u00a0 This comes to a start-up costof $5,000 per employee during the first three years and $714 per employee annuallythereafter.\u00a0 During the relevant fiscal year, 1975, Sherwin-Williams had a net annualincome of over twenty-eight million dollars and an increase inworking capital of over sixty million dollars.[[2]]Sun Ship is predicated on a basic rule of statutory construction:\u00a0 regulationsare to be construed consistent with the statutes under which they are promulgated and whenterms are not defined in their regulatory context they must be interpreted in accord withunderlying Congressional purpose.\u00a0 United States v. American Trucking Associations,310 U.S. 534, 542 (1940).\u00a0 Moreover, unless a different intent is clearly evident,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), andregulatory language should be given the same meaning as the language appearing in thestatute.\u00a0 See Baroid Div. of N.L. Industries, Inc. v. OSAHRC, 660 F.2d439, 447 (10th Cir. 1981), and RMI Co. v. Secretary of Labor, 594 F.2d 566 (6thCir. 1979) (in which the statutory and regulatory uses of \”feasible\” are viewedas synonymous).\u00a0 Accordingly, in Sun Ship the Commission looked to evidence ofCongressional intent for guidance as to the meaning of feasible noise controls.The noise standard was promulgated pursuant tosection 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),which empowers the Secretary to promulgate standards for toxic substances and harmfulphysical agents.\u00a0 Therefore, the leading case on the question is the Supreme Courtdecision, American Textile Manufacturer Institute, Inc. v. Donovan, 452 U.S. 490(1981) (\”ATMI\”).\u00a0 In ATMI, the Court considered the meaningof feasible as it is used in section 6(b)(5).\u00a0 The Court concluded that the plainmeaning of feasible is \”capable of being done,\” \”achievable,\” and thattherefore it cannot be understood to incorporate a cost-benefit test unless that wasCongress’s intent. For evidence of Congress’s intent the Court looked both toCongressional practice generally and to the legislative history of the Occupational Safetyand Health Act and concluded that Congress did not think of feasibility in cost-benefitterms.\u00a0 \”When Congress has intended that an agency engage in cost-benefitanalysis, it has clearly indicated such intent on the face of the statute.\”\u00a0 452U.S. at 510.\u00a0 Moreover, \”[t]he legislative history of the Act, while concededlynot 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 Congresscontemplated a different balancing by OSHA of the benefits of worker health and safetyagainst the costs of achieving them.\u00a0 Indeed Congress thought that the financialcosts of health and safety problems in the workplace were as large or larger thanthe financial costs of eliminating these problems.\u00a0 In its statement offindings and declaration of purpose encompassed in the Act itself, Congress announced that\”personal injuries and illnesses arising out of work situations impose a substantialburden upon, and are a hindrance to, interstate commerce in terms of lost production, wageloss, medical expenses, and disability compensation payments.\”\u00a0 29 U.S.C. ?651(a).452 U.S. at 522-523 (emphasis in original).Because the noise standard was originallypromulgated under the Walsh-Healey Government Contracts Act, 41 U.S.C. ?? 34-35 (the\”Walsh-Healy Act\”) and only later incorporated by the Secretary of Labor intothe Occupational Safety and Health Act, the Sun Ship Commission alsoexamined Walsh-Healey’s legislative history for evidence that Congress thought offeasibility in terms of cost-benefit analysis.\u00a0 As conceded in the majority, there isno evidence that the Walsh-Healey Congress intended feasibility to depend oncost-benefit.[[3]]The majority attaches great significance to theNinth Circuit’s decision in Donovan v. Castle & Cooke Foods, 692 F.2d 641 (9thCir. 1982), in which the Circuit Court held that ATMI does not require theCommission to abandon the cost benefit approach because ATMI deals with a differentsection of the Occupational Safety and Health Act than is involved in the noise standard.(ATMI involves section 6(b)(5), 29 U.S.C. ? 655(b)(5), which empowers theSecretary to engage in substantive rulemaking for toxic substances and harmful physicalagents, whereas the noise standard involves section 6(a), 29 U.S.C. ? 655(a), whichdirects the Secretary to adopt existing federal standards.)[[4]]\u00a0 In the first place,the Ninth Circuit began its analysis from a presumption of deference to the Commission’scost-benefit analysis simply because it was then-prevailing precedent.\u00a0 In the secondplace, the Court held merely that ATMI did not require abandonment ofcost-benefit. \u00a0Finally, and most importantly, the fact that there are different typesof OSHA standards simply does not bear on the question of the meaning offeasibility.\u00a0 The Supreme Court has said that the word has a commonly understoodmeaning which is not contradicted by statute, regulation or legislative history.\u00a0Therefore, there is no basis for grafting cost-benefit onto the term, whether the Actprovides for one type of standard or a hundred.Perhaps even more important than the statutory construction aspect of this case is thefact that the majority virtually eliminates engineering controls from the noise standard.\u00a0The standard explicitly prefers administrative and engineering controls overpersonal protective equipment; only to the extent that administrative and engineeringcontrols will not bring noise levels under prescribed levels may an employer rely onpersonal protective equipment.\u00a0 One of the majority’s principal reasons for holdingthat engineering controls are economically infeasible for this company is that they wouldbe more expensive than personal protective equipment.\u00a0 It will be the rare caseindeed when acoustical panels, machine enclosures, sound absorptive barriers and similarengineering devices do not cost more than wax earplugs and woolly earmuffs.\u00a0 Thepractical effect, therefore, of the majority decision is to strip the noise standard ofits primary abatement requirement.[[5]]\u00a0 This exceeds the Commission’s authority.\u00a0The Commission has no power to rewrite the Secretary’s standards because it prefersa means of abatement other than that chosen by the Secretary.\u00a0 Budd Co.,1 BNA OSHC 1548, 1973-74 CCH OSHD ? 17,387 (Nos. 199 & 215, 1974), aff’d, subnom. Budd Co. v. OSAHRC, 513 F.2d 201 (3d Cir. 1975); see alsoCastle & Cooke Foods, 77 OSAHRC 87\/A2, 5 BNA OSHC 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 suggestsotherwise, it is possible to give effect to the standard’s preference for engineeringcontrols over personal protective equipment without ignoring economic reality and drivingcompanies into bankruptcy.\u00a0 I suggested in Sun Ship a range of economicfactors that should be considered before engineering controls are required, including thecompetitive structure of the industry involved, the competition that the industry facesfrom other industries or other countries, inflation, the ability of the company to raisecapital, its ability to alter employee work schedules and assignments, its other capitalinvestment requirements, energy costs, etc. 11 BNA 1033 at n.12.\u00a0 Moreover, it wouldbe possible in most cases to alleviate the employer’s financial hardship by extending thetime required for installation of controls.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 those listed in Table G-16,feasible administrative or engineering controls shall be utilized.\u00a0 If such controlsfail to reduce sound levels within the levels of Table G-16, personal protective equipmentshall be provided and used to reduce sound levels within the levels of the table.* * *TABLE G–16-PERMISSIBLE NOISE EXPOSURES Duration per day, hours Sound level dBA slow response 8…………………………………………………….. 90 6……………………………………………………… 92 4…………………………………………………….. 95 3…………………………………………………….. 97 2…………………………………………………….. 100 1 1\/2 ………………………………………………. 102 1…………………………………………………….. 105 1\/2 …………………………………………………. 110 1\/4 or less ………………………………………… 115 (Footnote omitted.)[[2]] Sherwin-Williams did not brief the issueof the technological feasibility of engineering controls.\u00a0 Sherwin-Williams simplynotes in its 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 thatthe judge’s last two figures were in error, and that they should have been $200,000 and$714 respectively.[[4]] Section 6(b)(5) provides in pertinentpart:The Secretary in promulgating standards dealingwith toxic materials or harmful physical agents under this subsection, shall set thestandard which most adequately assures, to the extent feasible, on the basis of the bestavailable evidence, that no employee will suffer material impairment of health orfunctional capacity. . . .[[5]] Webster’s New Collegiate Dictionary 415(1979).[[6]] An example of this sense of practicalityis illustrated by the reasoning in Southland Mfg. Corp., 75-1 CCH Cont. App. Dec.? 10,994 (AS No. 16830, 1974), which resolved a contract dispute under the Walsh-HealeyAct.\u00a0 There, the government claimed that the only issue in determining whethermachinery was reasonably capable of being converted to another use was whether it could bephysically so converted.\u00a0 The claim was rejected because the government’s approachleft no room for considering whether conversion was \”economically feasible.\”\u00a0The government’s argument was characterized as unrealistic because all factors,particularly the cost of conversion, should be considered in determining whether it wasfeasible to convert machinery.\u00a0 Id. at p. 52,357.[[7]] The judge’s rejection of the Secretary’scontention that the controls would not affect production or require additional maintenanceis supported by the evidence.\u00a0 These are the types of additional costs that must beconsidered in determining whether controls are economically feasible.\u00a0 ContinentalCan, 4 BNA OSHC at 1548, 1976-77 CCH OSHD at p. 25,257.[[8]] Although the Secretary’s expert Peltontestified that the controls would reduce sound exposure below Table G-16 levels, the judgefound it unnecessary to make specific findings on the reductions that would be achievedbecause he decided that, even if the reduction in sound was not as great as theSecretary’s expert believed, the reduction would still be significant.\u00a0 The partiesdo not take issue with this determination.\u00a0 I reserve judgment on whether theSecretary can establish a prima facie case of technological feasibilitywithout demonstrating that engineering controls will reduce sound exposure within TableG-16 levels.\u00a0 See Continental Can, 4 BNA at 1545 n.13 and 1549n.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] acontinuing, effective hearing conservation program shall be administered.[[1]] The Secretary disputes the judge’s costfindings and contends that the actual costs would be less, particularly the cost of lostproduction and maintenance.\u00a0 However, inasmuch as I find Sherwin-Williams well ableto absorb the costs estimated by the administrative law judge, I will not decide theissue.[[2]] The majority concedes that even under Sherwin-Williams’ estimates, which are farlower than the Secretary’s, the proposed engineering controls would achieve significantnoise reductions and are technologically feasible.[[3]] The Sun Ship Commission made no\”reasonable assumptions\” of what government contractors consider cost-effective.\u00a0 The Supreme court has said that a regulatory word is to be given its dictionarymeaning unless Congress intends otherwise.\u00a0 The ruminations of a mythical governmentcontractor cannot substitute for the rule of law.[[4]] Section 6(b)(5) provides in pertinentpart:The Secretary in promulgating standards dealingwith toxic materials or harmful physical agents under this subsection, shall set thestandard which most adequately assures, to the extent feasible, on the basis of the bestavailable evidence, that no employee will suffer material impairment of health orfunctional capacity. . . .Section 6(a) provides in pertinent part:The Secretary shall. . .by rule promulgated asoccupational safety or health standard. . .any established Federal standard. . . .See also ? 4(b)(2), 29 U.S.C. ?653(b)(2) which provides in pertinent part:Standards promulgated under the Walsh-HealeyAct. . .and in effect on or after the date of this Act shall be deemed to be occupationalsafety and health standards issued under this Act.It would not be too much to say that by section4(b)(2) Congress specifically ratified the preference for noise control by engineeringmethods in the Walsh-Healey noise standard.[[5]] The preference for engineering controls isa wise one.\u00a0 Excessive noise can have adverse effects other than hearing loss,including harmful changes in cardiovascular, endocrine and neurologic functions.\u00a0 Seegenerally Criteria Document at IV 10-V 16, of which I would take officialnotice.\u00a0 Complaints of fatigue, irritability, and social conflict as a result ofexposure to excessive noise have been documented.\u00a0 A consequent reduction in jobperformance also has been recorded.\u00a0 See generally Criteria Documentat IV 9-14.\u00a0 And employees testified in this case that inability to hear over the dinmade it difficult for them to hear work orders, to monitor the operation of machines, andto hear and respond to safety warnings or dangerous machine breakdowns.Moreover, earplugs and muffs have significantlimitations.\u00a0 They are subject to employee resistance because they are uncomfortable.\u00a0 Not all employees can benefit from them.\u00a0 The Secretary put on experttestimony that noise reduction achieved by earplugs in actual use is less than half theattenuation achieved in laboratory tests.\u00a0 This has been recently borne out by aNIOSH-CDC study to the same effect.\u00a0 Hearing Protectors Field Measurement, Morbidityand Mortality Weekly Report, 607 (Nov. 19, 1982).”