“SECRETARY OF LABOR,Complainant,v.WHEELING-PITTSBURGH STEEL CORPORATION,Respondent.OSHRC Docket No. 15647_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:The Secretary of Labor alleges that Wheeling-Pittsburgh SteelCorporation violated the occupational noise standard at 29 C.F.R. ?1910.95(b)(1) by not using \”feasible\” engineering controls againstexcessive noise. Administrative Law Judge Benjamin G. Usher held thatthe Secretary did not prove that the engineering control he proposed metthe cost-benefit test of feasibility set forth in Continental Can Co.,76 OSAHRC 109\/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD ? 21,009 (No. 3973,1976), appeal withdrawn, No. 76-3229 (9th Cir. April 26, 1977). TheSecretary’s petition for review was granted under 29 U.S.C. ? 661(i).In Sun Ship, Inc., 82 OSAHRC 69\/A2, 11 BNA OSHC 1028, 1983 CCH OSHD ?26,353 (No. 16118, 1982), we overruled Continental Can and held, inaccordance with the decision of the United States Supreme Court inAmerican Textile Manufacturers Institute, Inc. v. Donovan, 101 S.Ct.2478 (1981), that \”feasible\” as used in the noise standard meansachievable. In view of this intervening change in law, we vacate thejudge’s decision and remand for further proceedings, includingevidentiary submissions, so that the interrelated issues oftechnological and economic feasibility can be reconsidered in light ofSun ShipHowever, we shall also examine an important, threshold issue raised byWheeling-Pittsburgh: Is exposure to a sound level above 115 dBAexcessive regardless of duration?The occupational noise standard states in part:? 1910.95 Occupational noise exposure.(a) Protection against the effects of noise exposure shall be providedwhen the sound levels exceed those shown in Table G-16 when measured onthe A scale of a standard sound level meter at slow response….(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.(2) If the variations in noise level involve maxima at intervals of 1second or less, it is to be considered continuous.* * *Table G-16–Permissible Noise Exposures [[1\/]]Duration per day, hours Sound level dBA slow response8 906 924 953 972 1001 1\/2 1021 1051\/2 1101\/4 or less 115The only evidence of excessive noise exposure relied on by the Secretaryestablishes that a Wheeling-Pittsburgh employee was exposed to noise at124 dBA for 10 seconds, 127 dBA for 15 seconds, 124 dBA for 5 seconds,126 dBA for 7 seconds, 124 dBA for 5 seconds, and 122 dBA for 5seconds. The Secretary repeatedly declined before the judge to arguethat these sound levels lasted longer than exposure durationsextrapolated from the duration-sound level benchmarks in Table G-16. Instead, he maintains that the table sets a ceiling of 115 dBA andexposure to sound levels above 115 is excessive regardless of duration.Wheeling-Pittsburgh argues that 115 dBA is not a ceiling and thattime-weighting of employee exposure with extrapolated durations isnecessary. It maintains that the standard does not clearly prohibitexposure to sound levels above 115 dBA, and points to the secondparagraph of the footnote to Table G-16, which permits exposure as highas 140 dB to impulsive or impact noises, as evidence that brief exposureto levels above 115 dBA is permissible. It notes that Table G-16permits sound levels to vary with duration according to a knownmathematical relationship.[[1\/]] Wheeling-Pittsburgh then reasons thatinasmuch as this relationship must be used to calculate sound levels anddurations between those supplied by the table (interpolation), [[2\/]]the relationship should be used to calculate durations for sound levelsabove 115 dBA (extrapolation). Wheeling-Pittsburgh also argues that itwas not given fair notice that 115 dBA is a ceiling value.We agree with the Secretary that 115 dBA is the upper limit ofpermissible sound levels. The words \”or less\” in Table G- 16 cansignify nothing else.[[3\/]] Table G-16 prescribes the highestpermissible sound level for a given exposure period. For exposureperiods of more than one-quarter hour, the maximum permissible soundlevels supplied by the table range from 90 dBA for eight hours to 110dBA for one-half hour. For an exposure period of one-quarter hour, themaximum permissible level is 115 dBA. And for a period of less thanone-quarter hour, the words \”or less\” reveal that the maximumpermissible level is also 115 dBA.[[4\/]] Wheeling-Pittsburgh’s contraryinterpretation would render superfluous the words \”or less.\” We mustgive effect to these words unless it is impossible to do so. SeeAnaconda Aluminum Co., 81 OSAHRC 27A\/A2, 9 BNA OSHC 1460, 1480, 1981 CCHOSHC ? 25,300, p. 31,352 (No. 13102, 1981).Wheeling-Pittsburgh argues that the second paragraph of the footnote tothe table, which states that \”[e]xposure to impulsive or impact noiseshould not exceed 140 dB peak sound pressure level,\” would beunnecessary if Table G-16 already provided a ceiling. We disagree. Thefootnote refers solely to impulsive or impact noise. The noise here,however, is not of that character but is continuous. Thus, whetherTable G-16 regulates only continuous noise as measured by a sound levelmeter set at A scale and slow response, or whether it regulatescontinuous, impulsive and impact noise as so measured, the table doesimpose a ceiling on at least the continuous noise in this case.We also do not agree with Wheeling-Pittsburgh that because one mayinterpolate between values supplied by Table G-16, one may with equallogic extrapolate above them. The soundness of extrapolation as amathematical technique has no bearing on whether the standard permitsextrapolation. The answer to that legal question of regulatoryinterpretation depends on whether the drafter intended to impose anabsolute limit on the noise to which unprotected human ears may safelybe exposed. To extrapolate is to assume that the drafter imposed nosuch limit and is therefore to assume the answer to the legal questionbefore us.Yet, there is evidence in addition to the words of the standard that thedrafter did intend to impose an exposure ceiling. Shortly after theSecretary adopted section 1910.95 under the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-679 (\”the Act\”), he publishedBulletin 334, \”Guidelines to the Department of Labor’s OccupationalNoise Standards\” (rev. June 8, 1971), reprinted in 1 BNA NoiseRegulation Reporter, Reference File 41:3001. This publication, a nearlycontemporaneous interpretation of the standard by its drafter, [[5\/]]states that \”[e]mployees must not be exposed to steady sound levelsabove 115 dBA, regardless of the duration.\” Id. at 2. It also explainsthat \”[i]n contrast with the 115 dBA upper limit for steady noise, thehigher intensity for impact noise is permissible because the noiseimpulse resulting from impacts….is past before the ear has time toreact fully.\” Id. at 4. [[6\/]]It bears emphasis that under Wheeling-Pittsburgh’s interpretation,employees would for varying periods be left entirely unprotected fromnoise levels higher than 115 dBA; they would not even have to wear earplugs or ear muffs. If, as Wheeling-Pittsburgh advocates, permissiblelevels were extrapolated, employees could be lawfully exposed withoutany ear protection whatever to 120 dBA for seven and one-half minutes,and to 140 dBA for about 28 seconds. [[7\/]] Yet, 120 dB is thethreshold of pain. [[8\/]] The words of the standard and its regulatoryhistory convince us that the Secretary did not intend this result.Accordingly, the judge’s decision is vacated. The case is remanded forfurther proceedings consistent with this opinion. [[9\/]]SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAR 31 1983————————————————————————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\/]] When the daily noise exposure is composed of two or more periodsof noise exposure of different levels, their combined effect should beconsidered, rather than the individual effect of each. If the sum ofthe following fractions: C1\/T1 + C2\/T2 [+…+] Cn\/Tn exceeds unity,then the mixed exposure should be considered to exceed the limit value. Cn indicates the total time of exposure at a specified noise level andTn indicates the total time of exposure permitted at that level.Exposure to impulsive or impact noise should not exceed 140 dB peaksound pressure level.[[1\/]] See note 7 infra.[[2\/]] See Weyerhaeuser Co., 77 OSAHRC 9\/A2, 4 BNA OSHC 1972, 1975 n.11,1976-77 CCH OSHD para. 21,465, p. 25,749 n.11 (Nos. 1231 & 1758, 1977),aff’d in pertinent part, 614 F.2d 199 (9th Cir. 1980); Sun Shipbuilding& Dry Dock Co., 11 OSAHRC 171, 2 BNA OSHC 1181, 1183 n.4, 1185 n.5,1974-75 CCH OSHD para. 18,537, p. 22,519 n.4, p. 22,520 n.5 (No. 268,1974) (lead and concurring opinions).[[3\/]] For this reason alone, we are unconvinced byWheeling-Pittsburgh’s argument that it lacked fair notice that 115 dBAis a ceiling.[[4\/]] The Commission has always interpreted Table G-16 as imposing a115 dBA ceiling. \”[E]xposure for any period of time to sound levels of115 dBA or more constitutes a violation.\” Louisiana-Pacific Corp., 77OSAHRC 187\/A2, 5 BNA OSHC 1994, 2000, 1977-78 CCH OSHD ? 22,261, p.26,803 (No. 10639, 1977); see Castle & Cook Foods, 77 OSAHRC 87\/A2, 5BNA OSHC 1435, 1436 n.5, 1977-78 CCH OSHD ? 21,854, p. 26,327 n.5 (No.10925, 1977), aff’d without discussion of point, 692 F.2d 641 (9th Cir.1982); Continental Can, 4 BNA OSHC at 1547, 1976-77 CCH OSHD at p. 25,257.[[5\/]] See Turner Co., 76 OSAHRC 108\/A2, 4 BNA OSHC 1554, 1557-58,1976-77 CCH OSHD ? 21,023, p. 25,275 (No. 3635, 1976), rev’d on anotherground, 561 F.2d 82 (7th Cir. 1977). As in Turner, the Bulletin wasreferenced in this litigation. Cf. Davis Metal Stamping, Inc., 82OSAHRC 37\/A2, 10 BNA OSHC 1741, 1746, 1982 CCH OSHD ? 26,134, p. 32,899(No. 78- 5775, 1982) (contemporaneous interpretation of regulation ininspection manual).[[6\/]] Some contemporaneous industrial hygiene materials also indicatesthat 115 dBA was then commonly thought of as an upper limit for at leastcontinuous noise. See American Conference of Governmental IndustrialHygienists, \”Threshold Limit Values of Physical Agents\” (1969) (tablesimilar to Table G-16; 115 dBA marked as \”ceiling value\”), reprinted inNational Safety Council, Fundamentals of Industrial Hygiene 739-741(1971); Inter-Society Committee, \”Guidelines for Noise ExposureControl,\” 4 Sound & Vibration 21, 23 (Nov. 1970) (permissible noiselevels of \”up to 115 dBA\”); and Inter-Society Committee, \”Guidelines forNoise Exposure Control,\” 28 Ind. Hyg. Assn. J. 418, 421 (Sept.-Oct.1967) (\”maximum of 115 dB\”).[[7\/]] The mathematical formula that we used to derive these numbers,and which is implicit in Table G-16, isT=__________ 8_____________,2 (L-90)\/5where T is the duration of a sound level in hours, and L is the soundlevel in dBA. See ? 1910.95, Appendix A. An easier but equivalentmethod of calculation is to halve the duration for each 5 dBA increasein sound level.[[8\/]] Fundamentals of Industrial Hygiene, at 168, supra note 6.[[9\/]] Chairman Rowland would not remand this case for furtherproceedings. Consistent with his dissenting opinion in Sun Ship, heconcludes that the requirement in section 1910.95(b)(1) that feasibleadministrative and engineering controls be utilized is invalid. Inasmuchas the Secretary seeks only the installation of engineering controls,Chairman Rowland would vacate the citation and does not reach thequestion of whether 115 dBA is a ceiling.”