“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11869 WEYERHAEUSER COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September24, 1976?DECISIONBefore:BARNAKO, Chairman; MORAN and CLEARY, Commissioners.MORAN,Commissioner:A decision of Review Commission JudgeRobert N. Burchmore, dated September 11, 1975, is before this Commission forreview pursuant to 29 U.S.C. ? 661(i). That decision vacated a citation whichalleged that respondent violated 29 U.S.C. ? 654(a)(2) by failing to complywith the occupational safety and health standards codified at 29 C.F.R. ?1910.95.Review was directed on whether the Judgeerred in concluding that 29 C.F.R. ? 1910.95 was invalid. A divided Commissionhas recently held in Secretary v. Turner Company, Division of Olin Corp.,OSAHRC Docket No. 3635, August 24, 1976, and Secretary v. Continental CanCompany, OSAHRC Docket No. 3973, August 24, 1976, that the standard isvalid. Accordingly, the Judge?s decision is reversed and the case is remandedfor a decision on the merits. That decision should include a finding as towhether the evidence establishes that the implementation of administrative andengineering controls is feasible within the guidelines set out in the Turnerand Continental Can decisions. Since it is necessary to remand thiscase, the parties may present additional evidence and argument on thefeasibility question if they desire.?FOR THE COMMISSION:William S. McLaughlinExecutive Secretary\u00a0CLEARY, Commissioner, CONCURRING:I join with Commissioner Moran in hisorder of remand. I do not, however, share his view that our decisions in Turnerand Continental Can are dispositive of all issues presented here.Neither of those cases dealt with one of Judge Burchmore?s two grounds fordeclaring the standard invalid. The Judge held that 29 CFR ? 1910.95(b)(1) isinvalid because its adoption contravened section 5(b) of the Act, and becauseits requirement of engineering controls which do not reduce sound levels toG?16 levels is arbitrary and capricious. Only Turner spoke to thevalidity of the standard, and though it addressed the latter argument, it didnot settle the first one. Weyerhaeuser also presents an argument not consideredin Turner. I therefore shall address these arguments here.As the Third Circuit noted, in Atlantic& Gulf Stevedores v. O.S.H.R.C., 534 F.2d 541, 553?554 (3d Cir. 1976),section 5(b) of the Act is not intended to diminish the employer?sresponsibility to assure compliance by his employees, let alone restrict byimplication the Secretary?s explicit rulemaking powers. Thus, it is clearlywrong to state that section 5(b) ?clearly preclude[s] a regulation which, as inthis case, seeks to impose all responsibility for employee protection upon theemployer.?As to the constitutional point, I noteonly that as we stated in Turner the heavy burden of demonstrating theinvalidity of the standard must be borne by those who would attack it, and thatas I pointed out in Part III.C.1. in Turner, it is enough for us to holdthat the Secretary could have rationally found that engineering controls are asuperior form of hearing protection. Whether Judge Burchmore correctly foundthat ear protectors protect employees ?fully? or that the Secretary?s contrarydetermination was right or wrong is simply not the point. Our private views ofthis controversy are not at issue. For even if we were thoroughly convincedthat hearing protectors are superior to engineering controls, we could notdeclare the standard unconstitutional. The only conclusion which we arepermitted to base our judgment upon is whether the Secretary, in the exerciseof his rulemaking powers, could have rationally found that engineering controlsare preferable to personal protective equipment. See e.g., Kelly v. Johnson,96 S.Ct. 1440, 1446 (1976) and cases cited.Finally, Weyerhaeuser?s reliance on theprovisions of section 3 (8) of the Act is misplaced. Hana Shoe Corporation,No. 5656 (August 24, 1976) (slip op. at 5); American Airlines, No. 6706(August 24, 1976) (slip op. at 3 and cases cited).\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11869 WEYERHAEUSER COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September 11, 1975AlteroD?Agostini and Donald F. Rector for the Secretary of Labor.DouglasB.M. Ehlke for the respondent.DECISIONAND ORDERBURCHMORE, Judge:Bycitation issued December 17, 1974, the complainant charges that respondentcommitted a violation of section 5(a)(2) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. 651 et seq (the Act), in that respondent failed toutilize feasible engineering and administrative controls to reduce noise levelsin its Honolulu plant, contrary to the Occupational Safety and Health Standardcontained in 29 C.F.R. 1910.95(b). No penalty was proposed. Timely notice ofcontest was filed and the proceeding was assigned to the undersignedadministrative law judge for adjudication. A prehearing conference was held atSan Francisco, Calif. on April 9, 1975, and the hearing was held at Seattle,Wash., on April 15?16, 1975. The parties have submitted briefs and replies; thecase was finally submitted on July 28, 1975.THEFACTSAtthe prehearing conference the parties stipulated to numerous fundamental factsof the case. In addition, the record of the hearing comprises 314 pages oftranscript and 34 numbered exhibits. The following findings are largelyundisputed. Where there is a conflict in the evidence, the testimony introducedby both parties is summarized.1.The Respondent, Weyerhaeuser Company, is a Washington corporation, and at alltimes relevant to this proceeding maintained its principal place of business atTacoma, Washington, and a workplace at 900 N. Nimitz Highway, Honolulu, Hawaii.2.Respondent, at all times relevant to this proceeding, had employees and was anemployer engaged in a business affecting commerce within the meaning of Section3(5) of the Act, in that, at its Honolulu workplace Respondent uses papershipped to Hawaii from places outside thereof, and ships corrugated boxes fromHawaii to places outside thereof.3.On November 12, 13, 14, and 15, 1974, an inspection and noise survey wasconducted at Respondent?s Honolulu workplace by Occupational Safety and HealthAdministration Compliance Officer and industrial hygienist Robert Yamamoto. Asa result of that inspection, Respondent was issued a citation on December 17,1974, alleging violation of that Occupational Safety and Health Standard foundat 29 CFR 1910.95(b)(1). The citation was amended by the Complaint to charge aviolation of the entire noise standard, 29 CFR ? 1910.95.4.The Secretary?s Notification of Proposed Penalty was mailed to Respondent onDecember 17, 1974, proposing the assessment of no penalty for the violationalleged in the citation. Respondent?s Notice of Contest was received by theSecretary on January 14, 1974 and was duly transmitted to the OccupationalSafety and Health Review Commission.5.Respondent manufactures corrugated cardboard boxes at its Honolulu workplace.The corrugation process is accomplished in an area approximately 32 feet wideand 74 feet long. The corrugating machine is manufactured by the LangstonCompany, and consists of a single facer component, a double backer componentand a heater drum. Three rolls of paper are fed into the machines during thecorrugation process. At the single facer component, one sheet of paper is corrugatedand a second sheet is adhered to one face of the corrugated piece. At thedouble backer component, a third sheet is adhered to the other side of thecorrugated piece, forming the corrugated board, which is then dried, cut, andformed into cardboard boxes.6.The double backer component is located approximately 30 feet downstream fromthe single facer component.7.Three employees per shift are normally employed to operate the corrugatingline, the single facer operator, the double backer operator, and the craneoperator.8.During each of the four days of the aforesaid OSHA inspection, the single faceroperator was exposed to noise levels over an eight-hour period of from 95 to110 dBA.9.The primary source of the noise on the corrugation line is the single facercomponent.10.During the aforesaid OSHA inspection, all employees observed by the complianceofficer, including the single facer operator, were wearing ear protection. Thewearing of ear protective devices at Weyerhaeuser?s Honolulu plant site is amandatory employment requirement.11.The ear protective device (ear plugs) being worn by the single facer operatorduring the inspection reduced his exposure to within the permissible noiseexposures of Table G?16 of 29 CFR ? 1910.95.12.At its Honolulu plant, Respondent administered a continuing, effective hearingconservation program, including an audiometric testing program for allemployees.??????????? 13. In order to investigate the effectiveness andfeasibility of every form of noise control for the single facer, apart from itseffective mandatory ear protector program, Weyerhaeuser has conducted anextensive companywide investigation of engineering and administrative controls.The following list of controls and related costs have been or are being testedin various plants of Respondent?s Shipping Container Division:A.Building an acoustically designed brand new corrugated box plant in Tampa,Florida with the best available engineering and operating controls. Suchcontrols included:(1)new single facer machine(2)hundreds of baffles hung over and around the single facer area of thecorrugator machine(3)creation of a quiet area or noise refuge for the operator through use of abarrier wall(4)acoustically constructed concrete block walls with absorbing materials. RESULT: \u00a0 \u00a0 No significant noise levels reduction in the single facer work area s or in the operator?s workshift exposure; no reduction to the limits of Table G?16. \u00a0 \u00a0 \u00a0 COST: \u00a0 \u00a0 $60,000. \u00a0 \u00a0 \u00a0??????????? B. Hanging vinyl curtains near the single facer in atleast three different plants.\u00a0 RESULT: \u00a0 \u00a0 Generally a one or two decibel reduction \u00a0 \u00a0 COST: \u00a0 \u00a0 $6,000 to $8,000 each \u00a0 \u00a0 \u00a0??????????? C. Constructing an acoustical (hollow) plenum wallbarrier to sound in several plants.\u00a0 RESULT: \u00a0 \u00a0 Generally a one or two decibel reduction \u00a0 \u00a0 COST: \u00a0 \u00a0 $8,000 per wall \u00a0 \u00a0 ???????????? D. Ordering an experimental tight-fitting single facermachine enclosure for the sole purpose of noise reduction, yet to be tested.COST: $29,500 per enclosure.??????????? E. Experimental redesigning of the single facer machinecomponents and loading requirements for potential noise control and productionmodifications.RESULTS: Unsuccessful inachieving noise levels within Table G?16COST of ExperimentalSingle Facer: $200,000.??????????? F. Participating as a founding member in the corrugatedindustry study (through the Fibre Box Association) to investigate feasibleengineering controls, with special emphasis on the single facer. Industryexperts have analyzed various controls including booths and retained anindependent acoustical expert, Bill Halvorsen of Structural Dynamics ResearchCorporation to analyze and recommend directions for further research onengineering controls. Progress reports from the industry study are sent to allof Weyerhaeuser?s plants such as Honolulu. The Fibre Box Association represents83% of the industry production and includes over half of the industry?s 1300corrugator machine operations.??????????? G. Working with Langston Company?s own noise consultantsat a different Weyerhaeuser plant location to control noise generated by thesingle facer, which efforts included complete foundation isolating of thesingle facer of a new Langston corrugator which cost $1,300,000 (two singlefacer portions cost $158,000 each).RESULT: No reduction toTable G?16 limits.COST of ?environmentalpreparation? of the single facer for noise control: $100,000.??????????? H. Conducting a program of noise level surveys since 1967throughout the Company?s box plants to identify noisy machinery and plantsitelocations. Following such surveys the Company has designed and postedinnovative signs in all noisy plant areas to alert and remind employees to keepwearing their ear protectors. The compliance officer?s photograph shows theseposted signs in evidence at Respondent?s Honolulu plant single facer area.??????????? I. Conducting continual daily machine maintenance andlubrication programs, as at Honolulu.??????????? J. In sum, Weyerhaeuser has spent nearly $418,800 to datein its ongoing program of investigating feasible engineering and administrativecontrols principally for the single facer plantside areas?all withoutsignificant success in reducing the operator?s ambient air noise exposurelevels to within the limits of Table G?16.??????????? 14. Respondent has not done so, but it is technicallypossible to reduce by an unknown amount the noise exposure of the single faceroperator at the Honolulu worksite by the following engineering controls: 1) apartial personnel enclosure for the single facer operator with the single facercontrol panel located within the enclosure and 2) lead vinyl curtains locatedto the left and right of the single facer component.??????????? 15. The evidence does not show that the use of theengineering controls described in finding 14 would reduce the noise exposure ofthe single facer operator to levels permissible under Table G?16.??????????? 16. The noise level in the corrugation area 10 feet awayfrom the single facer, when the single facer is operating, is approximately 6dBA lower than the corresponding noise level at the single facer control panel.??????????? 17. The respondent has not used administrative controlsand the evidence does not show whether it is feasible to reduce the noiseexposure of the single facer operator by training the double backer operator toperform all of the duties of the single facer operator and requiring theinterchange of duties of the two employees during each 8 hour shift.Stateof facts presented as Rational Basis for Rejection of Personnel ProtectiveDevices??????????? The regulatory standard, as interpreted by the Secretary,rejects the use of personal protective equipment such as ear plugs or muffs asa permanent alternative to administrative or engineering controls. TheSecretary offers the following opinion of a physiologist as showing a rationalbasis for adopting that position as a safety and health measure, Tr. 166?7:?My opinion, assuccinctly as possible, is this?that various ear protective devices such asearplugs and ear muffs, show an ability to protect the ear from intrusion ofsound up to a given degree?a number such as 20 decibels, which is a ratherlarge attenuation, is often quoted as ?a typical amount of protection.? Theamount of protection is the function somewhat of the frequency of the sound,but leaving that aside, the main problem with ear protective devices, as themeans of always getting protection, is the question of reliability andpracticality in the real life situation, as distinct from laboratory tests; andthere is evidence which shows that the fitting and wearing of ear protectivedevices is very?must be carefully done and carefully followed both by theperson using the devices and the person fitting him; and that the day-by-dayusage of these devices does not afford the protection that one hopes will beafforded because of these?the day-by-day vagaries, the problems of maintaininga seal, and other practical considerations which will be shown in the figures.??????????? The other factor is that while even with the laboratorytests, where the conditions are ideal for both the measurement and the fittingof the device, we find that there are a certain percentage of the people thatare not afforded the amount of hearing protection that the average person maybe afforded in the laboratory.??????????? Well, these two factors are the basis?are my opinion asto limitations in the utilization of ear protective devices as a certain meansof protecting the hearing of people exposed to intense noise on a day-by-daybasis.???????????? Opposed to this is the testimony of Dr. Victor Hildyard,M.D., a Denver Otologist who testified for respondent as follows:?The most frequenttypes of nerve-damage hearing loss are unpreventable and occur as a naturalresult of the human aging process (e.g. presbycusis) and everyday communityliving (e.g., sociocusis) (Tr. 221?222). By sharp contrast, noise-induced nervehearing loss can be prevented by attenuating the sound pressure level to theinner ear (Tr. 222). Sound can be effectively attenuated by obstruction of theear canal either by means of fitting some object into the ear (plug) or byfitting something over the ear (muff) (Tr. 223?224). Dr. Hildyard?suncontradicted results from personal testing of earplugs and muffs show the followingattenuation effects for protecting employees? ears: (1) earplugs?averageattenuation from 20 to 25 decibels; (2) ear muffs?up to 35 decibels (Tr. 224,226). At every level of noise exposure relevant to this case, including at 90dba (at which level no ear protection is required by the OSHA standard),because of known population sensitivities to noise, more employees will bebetter protected from losing their hearing simply by wearing good fitting earprotectors than by engineering or administrative control of the noise levels to90 dba without ear protectors (Tr. 226?227, 234?235). In Dr. Hildyard?sopinion, this superiority of ear protectors remains even if the noise exposureis reduced through engineering or administrative means to 80 dba (Tr. 234). Inone company of 5,000 employees Dr. Hildyard has studied through the Hearing andSpeech Center over a period of five years, where the company has a mandatoryear protector program, fewer than two percent have shown any degree ofnoise-induced hearing loss. In other words, 98% of the 5,000 workers have beensuccessfully protected from the effects of noise through the supervised use ofear protectors (Tr. 229). It is understandably concluded that the two percentof employees with some noise hearing loss simply haven?t been wearing their earprotection properly or that they are individuals with unique sensitivities atsuch low levels of noise that no amount of available protection (includingengineering controls to 90 dba) could prevent their degree of loss (Tr. 230).Because of a phenomenon called paracusis, an employee can hear better in noisyenvironments with ear protection devices than he can without such protection(Tr. 234). Every employee can be fitted with adequate personal ear protectioneither of the plug or muff type (Tr. 227?228; Resp.Exs. R?3, R?4, and R?5).Fitting is a simple process (Tr. 232?233). Ear protectors can be easily wornwith eyeglasses (Tr. 233). It is easy for an employee to know whether hisearplug is properly seated and to adjust it himself if it?s not (Tr. 233).There is no medical evidence that indicates ear protectors are unhealthy forany reason (Tr. 321).????????????? Considering all the testimony I find that a fairevaluation of it compels the following finding of fact:??????????? 18. Ear plugs or ear muffs are effective to prevent noiseinduced hearing loss unless the employee fails or refuses to wear them.THEISSUES??????????? As interpreted by the Secretary, the cited regulationprohibits the permanent use of personal protective equipment as an alternativeto engineering controls, no matter how effective such protective equipment maybe to prevent noise induced hearing loss and no matter how well administered isthe program requiring its use. Further, according to the Secretary, theregulation requires the use of such feasible engineering controls as alreadyexist even though they may fail to reduce the noise to G?16 levels and eventhough ear protection must still be worn. Respondent contends that thestandard, as so interpreted, is invalid, and that there are no feasibleengineering controls.??????????? The questions presented are: (1) Whether this Commissionhas the power to adjudicate the validity of the standard adopted by theSecretary; (2) If the Commission has that power, is the noise standard invalid (a)because it excludes the use of personal protective equipment as a permanentalternative to engineering controls or (b) because it requires the use ofcontrols even though they do not achieve G?16 noise levels; and (3) do feasiblecontrols exist.VALIDITYOF THE STANDARD??????????? The power of the Commission. No court has yet decided thequestion whether this Commission has the power to pass upon the validity of aregulation promulgated by the Secretary. The Commission itself has in factexercised such power to invalidate a standard on the grounds that it wasunenforceably vague; in that case one Commissioner dissented, urging that theCommission lacked such power. Secretary v. Santa Fe Transportation Company,No. 331 (December 20, 1973). It must therefore be concluded that the majorityof the Commission is of the opinion that the Commission has the requisite powerand authority.??????????? Examination of the Act, and reflection upon the statutoryscheme of regulation, supports the view that the Commission has the power and dutyto pass upon the validity of the standards which are cited in proceedingsbrought before the Commission. For the Act sets forth a clear separation ofpower between the Secretary, who was given the power to establish standards andprosecute enforcement actions, and the Commission which was authorized to carryout the adjudicatory functions of the Act. Section 2(b)(3). The power toadjudicate contested enforcement proceedings, which is accorded to theCommission under section 10(c), necessarily involves the power and duty todetermine the validity of the cited standard, for an invalid standard would bea nullity which could not form a lawful basis for affirming a citation.??????????? The scheme of regulation adopted in this Act isfundamentally different on this point from the familiar scheme of otherstatutes underlying such agencies as the Federal Trade Commission, or theInterstate Commerce Commission. For in such cases the agency possesses bothrule making and quasi-judicial powers, and it would be a manifest absurdity forthe agency to pass upon the validity of its own regulations. This Commission,on the other hand, is similar to the Tax Court in that it performs only anadjudicatory function in the exercise of which it is inherently sound toconsider the lawfulness of the standard promulgated by another, whollyindependent agency. This is not to say, of course, that the Commission?sdetermination is final and unreviewable, for section 11 of the Act clearlyprovides for judicial review of the Commission?s decision. However, there isjust as much reason for the Commission to make a reviewable determination ofthe validity of a standard as there is for the Commission to arrive at areviewable decision on any other necessary element of an enforcementproceeding.??????????? The Act itself supports the view that this Commission isexpected to make reviewable determinations of the validity of regulations, forit provides in section 11(a) that no objection that has not been urged beforethe Commission shall be considered by the court. Accordingly, if the regulationwere not challenged before the Commission, it could not be challenged in court.??????????? The view that the Commission can pass upon the validityof regulations is not contrary to the principle, urged by the Secretary, thatan administrative agency lacks the power to pass upon the constitutionality ofthe very legislation that created it. It is the validity of a standardpromulgated under the Act, and not the Act itself, which is brought in issueherein. Moreover, it is unquestionably true, as the Secretary further argues,that this Commission has only the power conferred upon it by statute, that theauthority of the Secretary to promulgate standards is exclusive and that theCommission has no rule-making power. In passing upon the validity of theSecretary?s standards, this Commission clearly has no authority to consider thewisdom or fairness of the standard, or whether it comports well or ill with thepurposes of the Act; the Commission cannot lawfully ?second guess? the Secretary.It?s only proper function, so far as the standard is concerned, is to determinewhether it is within the power of the Secretary to promulgate according to theprovisions of the Act and of the Constitution. In performing that function, theCommission does not exercise a rule-making power; rather it exercises a purelyadjudicatory power.??????????? The Secretary points out that the Act provides in section6(f) a specific method for obtaining review of a challenged standard. It isthere provided that any person adversely affected by a standard may, withinsixty days after the standard is promulgated, petition a court of appeals forjudicial review. It is the view of the Secretary that this method ofpre-enforcement review is exclusive. That view, however, is contrary to thelegislative history on the matter, for the Senate Report on the bill explicitlyrecited, emphasis supplied:Section 6(f) …provides that any person who may be adversely affected by a standard may,within 60 days of its issuance seek judicial review in the appropriate UnitedStates Court of Appeals. While this would be the exclusive method for obtainingpre-enforcement judicial review of a standard, the provision does not foreclosean employer from challenging the validity of a standard during an enforcementproceeding.???????????? Finally, as to legislative history, the Secretary pointsto a bill that was debated and rejected (H.R.16785) and which was supposed tohave expressly provided for the Commission to review the validity of standards,citing a Commission judge?s decision in Secretary v. Boise Cascade Co.,No. 2944 (March 14, 1974). Examination of that decision reveals that H.R.16785actually provided for such review by the Secretary and not by the Commission,so the case does not stand for the proposition that Congress rejected the ideaof having the Commission pass upon the validity of the Secretary?s standards.??????????? I conclude that, as a matter of law, this Commission hasthe power and the duty to determine the validity under the Act and under theConstitution of any standard cited by the Secretary if it be properlychallenged in an enforcement proceeding.??????????? The test of validity. It is well settled under theconstitution that due process demands that a law shall not be unreasonable,arbitrary or capricious, and that the means selected shall have a real andsubstantial relation to the object sought to be attained. Nebbia v. New York,291 U.S. 502, 525 (1934). At the same time, as the Secretary contends it isincumbent upon the opponents of a law to demonstrate that it is clearlyunreasonable, Arizona Copper Co. v. Hammer, 250 U.S. 400, 426 (1918).Where the legislative judgment is called in question the inquiry is whether anystate of facts either known or which could reasonably be assumed affordssupport for it; the courts will not pass judgment on the wisdom of the law. RailwayExpress Agency v. New York, 336 U.S. 106, 109 (1954).??????????? A regulation adopted and enforced by an agency pursuantto an act of Congress must not only satisfy substantive due process, it mustalso conform to the requirements of the statutory grant of authority. H.& H. Tire Co. v. Department of Transportation 471 F.2d 350 (7thCir.1972). National Tire Dealers and Retreaders Assoc., Inc. v. Brinegar,491 F.2d 31 (D.C.Cir.1974). Further, a regulation is not rationally related tothe regulatory purpose just because an agency says so. Some factual basis mustappear. Pan American Petroleum Corp. v. F.P.C., 352 F.2d 241 (10thCir.1965). The courts require a showing by the agency that there is a rationalbasis for its regulation. Coakley v. Postmaster of Boston, Mass., 374F.2d 209, 210 (1st Cir.1967).??????????? Applying the foregoing principles to this case, Iconclude that the regulation is invalid as interpreted by the Secretary. Thereis no rational basis in safety or health for rejecting the use of personalprotective equipment. The fact is that such equipment is fully effective toprotect employees against noise induced hearing loss unless the employee failsor refuses to wear them. But the willingness of employees to wear ear plugs orear muffs is not grounded in safety and health; it is a matter of personalpreference and cooperation.??????????? To reject the use of ear plugs or muffs solely becausesome employees refuse to wear them exceeds the power of the Secretary under theAct. Section 2(b)(2) states that ?employers and employees have separate butdependent responsibilities and rights with respect to achieving safe andhealthful working conditions.? And it is provided in section 5(b) that ?Eachemployee shall comply with occupational safety and health standards and allrules, regulations and orders issued pursuant to this Act which are applicableto his own actions and conduct.? Those provisions clearly preclude a regulationwhich, as in this case, seeks to impose all responsibility for employeeprotection upon the employer.??????????? The regulation is also invalid because it isfundamentally arbitrary and capricious to require the adoption of engineeringcontrols which do not produce sound levels prescribed by the standard. In sucha case, the employee must still wear ear plugs or muffs, and the wearing ofthem protects him fully; the engineering controls are therefore futile and ofno effect upon safety or health.??????????? It is ORDERED that the citation be and the same is herebyvacated and that this proceeding be and the same is hereby terminated.?Robert N. BurchmoreJudge OSAHRCSeptember 11, 1975”