SAMSON PAPER BAG CO., INC. �

OSHRC Docket No. 76-222

Occupational Safety and Health Review Commission

June 13, 1980

� [*1] �

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners. �

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Simeon Brinberg, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

This case involves the interpretation and application of the occupational noise standard published at 29 C.F.R. � � 1910.95(b)(1). n1 Administrative Law Judge Seymour Fier found Respondent, Samson Paper Bag Co., Inc. ("Sanson"), in violation of 29 U.S.C. � � 654(a)(2), section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. � � � 651-678 ("the Act"), for failing to comply with section 1910.95(b)(1). � Samson petitioned the Commission for review of Judge Fier's decision, and review was granted under section 12(j) of the Act, 29 U.S.C. � � 661(i). � The judge's decision is set aside and the case is remanded for further proceedings.

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n1 This standard provides:

� � 1910.95 Occupational noise exposure.

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(b)(1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. � If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

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Table G-16 -- PERMISSIBLE NOISE EXPOSURES
	Sound level
Duration per day, hours	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

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(footnote omitted)

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I

Samson manufactures paper bags in its Huntington, Long Island, facility, where it employs approximately 100 people. � The main floor of Samson's plant is a large production area where 17 bag manufacturing machines are operated. � There are 9 "sack machines" on the "sack line" that produce large supermarket bags or sacks, and 8 "bag machines" on the "bag line" that produce smaller grocery bags. There are usually 23 employees in the area of the machines during each shift. � It is undisputed that the noise levels in the production area exceed the levels listed in Table G-16, note 1 supra. n2 At the time of the alleged violation, all exposed employees in the area were wearing earplugs capable of reducing their noise exposure to within permissible exposure levels.

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n2 According to measurements made by the industrial hygienist who inspected Samson's facility for the Secretary, Samson's employees were exposed to noise levels as high as 100 dBA.

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Each of the bag and sack machines is a self-contained manufacturing unit that operates automatically. � An operator places a roll of paper on a roll stand and manually threads the paper into the machine. The paper goes through various processes which fold, shape, cut, glue, and finally collate the finished product. � It is necessary fot the machine operator to make several adjustments during the production process. � Access to the various machine components is therefore essential.

The Secretary presented as in expert witness Norman C. Meyerson of Ostergaard Associates, a consulting firm engaged exclusively in noise reduction analysis. � Meyerson acknowledged that he had no prior experience with paper bag production machines, but testified that their components are not substantially different than equipment in other industries for which he has successfully implemented engineering controls. � Meyerson inspected Samson's plant in April 1976, to analyze both the source of the noise problem and possible methods of noise attenuation. � Based on his analysis, Meyerson determined that it was necessary to intercept the sound at its sources, which were located in three general areas: the [*4] � first paper fold, the principle shaping, gluing, and cutting area, and the packaging area where air actuators are operated.

In Meyerson's opinion, the noise could be reduced by enclosing these noise sources in a rectangular machine enclosure, with access doors or movable sections to permit servicing. � According to Meyerson, machine controls could penetrate the exterior of the enclosure and be sealed to prevent noise leaks. � The proposed enclosures could be made of conventional materials that are currently available. � Windows and access ports could be placed anywhere on the enclosure to allow the operator to observe the operation and make necessary adjustments. n3 Meyerson testified that the enclosure would need two openings in order to permit the paper stock to enter and exit. � These two openings would cause a 2% "integrity loss," with a resultant decrease of approximately 5 dBA in the amount of noise reduction that could be achieved. � Meyerson acknowledged that the heat generated by the machine during the manufacturing process would necessitate installing a ventilation system with a sound trap that allows the circulation of air but contains the sound. � Meyerson described this as [*5] � a relatively simple device that could be placed anywhere on the enclosure. The enclosure method of noise reduction was described as a well recognized and accepted procedure capable of reducing sound as much as 30 dBA. � Meyerson testified that at least a 10 dBA reduction, and probably more, could be achieved by Samson while allowing for all necessary openings in the structure. � It was his belief that the overall noise level could be reduced to within a 90 dBA limit if all of his recommendations were implemented. n4 Meyerson estimated that it would take 2 years to implement his proposed controls in order to avoid a major cessation of operations at the plant.

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n3 In the report that Meyerson prepared for the Secretary, he outlined the proposed enclosure. In drawing up the original proposal he did not consider that workers would need regular access to various machine components while the machine was operating. � He testified, however, that access ports could be incorporated into his design with a minimal reduction in its overall effectiveness.

n4 Meyerson acknowledged that Samson would "probably" need more openings in the enclosure than was reflected by his 2% integrity loss estimate. An estimate as to the reduction in overall effectiveness would be based on a previously determined "family of curves" that graphically displayed the "percentage open vs. the penalty in dB from the design value." The 5 dBA loss noted above was based on a 2% integrity loss with a 25 dBA design goal.

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Samson's witness, Mr. John Back, an acoustical engineer engaged in architectural acoustics, testified that he has been working in the field of noise controls for bag manufacturing machinery and had not yet succeeded in reducing sound levels to 90 dBA. � Based on the difficulties encountered by his company in constructing an effective enclosure, he concluded that the Meyerson design would suffer an integrity loss of greater than 2%. � The engineering department of the acoustical engineering firm at which Back is employed was developing a bag machine enclosure. Back believed that the prototype being developed would result in a "feasible reduction." He indicated that the design goal was to reduce noise to acceptable levels. � His testimony indicated that a prototype could be developed within 6 months and implementation would require an additional 2 years.

Mr. James Hamilton, the vice-president of a company that manufactures bag machinery similar to Samson's, testified that he had been supervising his company's efforts to reduce the noise associated with its machinery. � His firm had been successful with two [*7] � test machines in reducing noise from 103 dBA to 93 dBA, but had been unable to reduce noise levels to 90 dBA.

Samson's Vice-President of Manufacturing, Mr. Willis Fenwick, is a member of the Noise Abatement Committee of the Paper Bag Institute. � He testified that noise abatement was the main subject of a meeting held in May 1976, where various industry members indicated that minimal results had been achieved from their attempts to reduce noise. Fenwick stated that no member reported an ability to reduce noise levels to acceptable Table G-16 levels.

According to Fenwick, Samson began fitting employees with earplugs in May 1972. � In 1975 it began audiometric testing of employees' hearing. � Samson also made it a condition of employment that employees wear earplugs when in high noise areas. � Fenwick acknowledged that an acoustical engineer was not hired to study the noise problem at the plant prior to the issuance of this citation.

At the hearing, conflicting testimony was introduced regarding the cost of noise control enclosures. Meyerson estimated that the cost of fabricating and installing the enclosures would be approximately $125,000. � His estimate was based on a cost of $10 [*8] � per square foot, which was higher than the usual cost of $6 to $8 for this type of enclosure, but was intentionally inflated by Meyerson to allow for unusual parts that would have to be custom designed for doors or windows. � Samson's vice-president, Hamilton, was reluctant to express an opinion, but ultimately estimated that the cost per machine would be between $10,000 and $15,000, making the total cost for all seventeen machines between $170,000 and $225,000. � Exhibit C, which was prepared by Samson's Comptroller, Pacifico, indicates the total cost of inscalling controls would be $250,000. � However, Pacifico did not explain how he arrived at that figure. � There is also a wide discrepancy in the evidence regarding the extent of the production loss that the enclosures would cause. � Meyerson estimated that the production loss would be no more than 3%. � Pacifico estimated the production loss at 30% and calculated that an annual expenditure of $342,000 for a third shift would be necessary to maintain current production levels.

II

Judge Fier found that Samson failed to comply with section 1910.95(b)(1) as alleged. � He determined that noise abatement controls were technologically and [*9] � economically feasible. He reasoned that even though the controls suggested by the Secretary were not currently in use in Samson's industry, controls could be devised which would reduce the noise to Table G-16 levels. � Although Judge Fier concluded that noise abatement controls were economically feasible, citing Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977), he made no specific findings regarding the costs of compliance despite the conflicting cost estimates offered at the hearing by the various witnesses. � Judge Fier determined that an abatement period of 3 1/2 years would be reasonable in that it would "permit the respondent to act without any undue pressure of time and finance to achieve the best desired ultimate result."

Samson seeks reversal of the judge's decision, arguing that effective noise abatement controls for its paper bag manufacturing equipment are neither technologically nor economically feasible. It asserts that a violation of the cited standard cannot be found because the Secretary has not shown that "engineering controls are in existence, are [*10] � available or that if developed . . . will result in significant reduction in ambient noise levels." Samson further argues that "[t]he cost of implementing the suggested engineering controls is grossly disproportionate, both from a direct and indirect cost point of view, to any benefit to be derived," particularly because its employees were personal protective equipment and "are not subject to any health hazard."

III.

The standard limits the amount of noise to which employees may be exposed to 90 dBA for an eight-hour day, with lesser times of exposure permitted at higher noise levels. � It provides that, to achieve compliance, "feasible administrative or engineering controls shall be utilized." If such controls do not reduce noise to the permitted limits, "personal protective equipment shall be provided and used." Thus, the standard provides that administrative or engineering controls shall be the preferred means of compliance, with personal protective equipment to be used if such controls are not "feasible" or if the controls that are feasible cannot achieve full compliance. � Continental Can Co., supra.

There is no dispute that protection of employees exposed to noise levels [*11] � in excess of the limits permitted by the standard is necessary. � Moreover, the Commission has rejected the argument that the standard is arbitrary in requiring that engineering and administrative controls be used in preference to personal protective equipment to protect against the hazard. Turner Co., 76 OSAHRC 108/A2, BNA OSHC 1554, 1976-77 CCH OSHD P21,023 (No. 3635, 1976), rev'd on other grounds, 561 F.2d 82 (7th Cir. 1977).

The controversy here revolves around the proper interpretation of the word "feasible" as it is used in the standard and presents the first opportunity for the Commission as presently constituted to express its opinion concerning the noise standard. � I adhere to the views I expressed in prior noise cases. � E.g., Continental Can Co., supra; Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD P21,854 (No. 10925, 1977), appeal filed, No. 77-2565 (9th Cir. July 14, 1977).

A.

In determining whether administrative or engineering controls are feasible, the starting point must be whether there exists a type of control capable of producing a significant reduction in noise exposure in an employer's workplace. I [*12] � refer to such a control as being technologically feasible. n5 To prove that an employer violated the standard, the Secretary must at the very least demonstrate that, at the time of the alleged violation, a technologically feasible method of noise reduction existed. � Love Box Co., 76 OSAHRC 45/D5, 4 BNA OSHC 1138, 1975-76 CCH OSHD P20,588 (No. 6286, 1976).

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n5 The standard uses the single word "feasible." Because it is generally useful to separate whether a certain technology exists from the cost of implementing that technology, it has been the practice of the Commission to speak in terms of technological feasibility and economic feasibility. Indeed, the parties to noise cases often couch their arguments in these terms. � However, these terms do not have universally-accepted meanings, as the various opinions in this case demonstrate.

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This does not mean that the Secretary must prove that "off-the shelf" controls were available to an employer at the time of the alleged violation. � It is sufficient if the Secretary [*13] � shows that existence of technology that could be adapted to an employer's operations. � Castle & Cooke Foods, supra. As I noted in Castle & Cooke, adapting a technology to a new use may well involve additional costs compared to the implementation of "off-the-shelf" controls. � Such costs, however, are properly considered in determining the economic, rather than the technological, feasibility of controls.

The Secretary argues that his authority to cite employers for alleged violations of the noise standard is not limited to the issuance of citations to those employers which have failed to adapt presently existing technology to their operations. � Analogizing to his authority to force technology in the promulgation of standards, the Secretary argues that employers should be held in violation of the Act even if the technology does not presently exist. � He asserts that the authority to enforce standards during the technology forcing stage is necessary "in order that the proper pressure be placed on employers to stimulate technological development."

I do not agree with the Secretary's conclusion, for it goes beyond the requirement of the standard itself and demonstrates a fundamental [*14] � misunderstanding of what is meant when a standard is labelled "technology forcing." An employer is only in violation of the standard and therefore subject to a penalty if it fails to implement controls that are feasible at the time the employer allegedly violated the standard. � An employer cannot be penalized for failing to do something it could not possibly have done. � Cf. Central of Georgia Railroad Co. v. OSHRC, 576 F.2d 620, 625 (5th Cir. 1978) (violation cannot be based upon unsupported generalizations that an employer's efforts have not gone far enough); General Electric Co. v. OSHRC, 540 F.2d 67, 70 (2d Cir. 1976) (same). � It follows that the Secretary must prove the technology to reduce noise levels existed at the time of the alleged violation, not at some specified or unspecified future time. � Love Box Co., supra. Of course, the standard places a continuing duty on an employer who is not already in full compliance. � As technology advances, the employer must implement new controls as they become feasible, until ful compliance is attained. � An employer who fails to keep pace with technological advances may violate the standard in the future. � But an employer [*15] � cannot be found to have violated the standard in the past based on its failure to implement controls that were not feasible at the time of the alleged violation.

The Secretary's argument that the authority to promulgate technology forcing standards carries with it the authority to enforce such standards during the technology forcing stage misses the point. � In promulgating standards, the Secretary can certainly anticipate that advances in technology will occur and set objectives that cannot immediately be met. � To conclude otherwise would mean that the Secretary would have to engage in a new rulemaking proceeding every time there is a technological advance that would permit a further reduction in a particular hazard. Such a conclusion would be inconsistent with the very nature of performance standards, which are preferred by the Act, n6 and which assume that industry will itself develop new technology in seeking the most efficient way to comply. � See Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1900, 1975-76 CCH OSHD P20,333 at p. 24,250 (No. 6767, 1976), aff'd, 585 F.2d 1327 (6th Cir. 1978). But rulemaking is different from adjudication, and the fact that the Secretary [*16] � can anticipate technological advances in rulemaking does not mean that employers can be found to violate a standard based on their failure to implement non-existent technology.

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n6 Section 6(b)(5) of the Act, 29 U.S.C. � � 655(b)(5), states, in regard to standards dealing with toxic materials or harmful physical agents:

Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired.

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The leading decision which had addressed the technology forcing nature of standards, Society of the Plastics Industry, Inc. v. OSHA, 509 F.2d 1301 (2d Cir. 1975), cert. denied, 421 U.S. 992 (1975), does not support a contrary result. � In that case, the Secretary's standard establishing an exposure limit for vinyl chloride of one part per million averaged over an eight-hour day n7 was challenged on the basis, among others, that the technology did not then exist to achieve that low a level. n8 Responding to this argument, the court stated:

. . . the Secretary is � [*17] � not restricted by the status quo. � He may raise standards which require improvements in existing technologies or which require the development of new technology, and he is not limited to issuing standards based solely on devices already fully developed.

509 F.2d at 1309. The court went on to observe that the record developed in the rulemaking proceeding demonstrated a number of engineering and administrative means by which vinyl chloride exposure could be reduced, and then said:

But whether it (exposure to vinyl chloride) can (be reduced) or not, the Secretary's compliance scheme does not rest only on engineering and work practice controls. � He does mandate that the industry use such technology to the extent feasible, but, more importantly, he requires that, in addition, respiratory protection be used if engineering means cannot bring the VCM (vinyl chloride monomer) level down to the permissible limit.

509 F.2d at 1310.

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n7 The vinyl chloride standard is now codified at 29 C.F.R. � � 1910.1017. � Like the noise standard at issue here, the vinyl chloride standard places primary reliance on engineering and administrative controls, with personal protective equipment (respirators) to be used if feasible engineering and administrative controls cannot achieve the required limit.

n8 Society of the Plastics Industry involved a direct challenge to the promulgation of the standard pursuant to � � 6(f) of the Act, 29 U.S.C. � � 655(f). � It was not, like the present case, an enforcement proceeding in which an employer was charged with violating the standard.

� [*18] �

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Thus, although the court held that the Secretary could establish an exposure limit that anticipated future advances in technology, it did not imply that an employer could be found in violation of such a standard for failing to implement presently unavailable technology. Instead, the court's upholding of the one part per million requirement relied heavily on the provision in the standard of an alternative means, personal protective equipment, of achieving that limit while the necessary technology was being developed. � In other words, the court did not view the technology forcing aspect of the standard as placing a duty on employers that could not presently be achieved. � To go further is to impose a research requirement on all employers, and the Secretary's attempt to impose such a requirement in rulemaking has been held unauthorized by the Act. � American Iron & Steel Institute v. OSHA, 577 F.2d 825, 838 (3d Cir. 1978), petitions for cert. filed, 47 U.S.L.W. 3525 (U.S. 1978) (Nos. 78-918 & 78-919).

B.

If the only criterion for determining feasibility is whether a control is technologically feasible, � [*19] � that is, whether a method exists for achieving a significant reduction in noise exposure, the answer will always be on the affirmative, for it is always possible to achieve the limits permitted by the standard by limiting the presence of employees in areas of excess noise to the time of exposure permitted at the particular noise level. � This may, of course, adversely affect the employer's productivity. � In some cases, the effect will be devastating. � But a decrease in productivity is simply one type of cost that engineering or administrative controls may impose on an employer, and there is no reason to distinguish a cost resulting from production losses from any other type of cost. � Thus, if costs are not considered in determining the feasibility of controls, there will always be controls capable of achieving the limits required by the standard.

Such an interpretation of the noise standard - that costs play no part in determining the feasibility of controls - is not only totally unreasonable, it is inconsistent with the standard itself, which contemplates situations in which feasible administrative or engineering controls will not be able to achieve full compliance and personal protective [*20] � equipment must be used. � Moreover, such an interpretation essentially writes the word "feasible" out of the standard, for if cost is not a factor, engineering or administrative controls will always be feasible, and the inclusion of the word "feasible" in the standard is redundant. � To avoid rewriting the standard, costs must play a role in determining feasibility.

The Secretary has consistently agreed that costs do have some role to play in determining feasibility. He contends, however, that costs only render controls infeasible if they threaten the financial viability of an employer n9 and that the burden is on the employer to establish economic infeasibility. � Samson, on the other hand, relies on Continental Can Co., supra, and prior Commission decisions in arguing that a cost benefit analysis must be utilized in determining the economic feasibility of controls.

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n9 In this case, the Secretary asserts that even controls that threaten an employer's financial viability may be feasible if the employer is lagging behind its industry in safety and health compliance. � The Secretary cites Industrial Union Div., AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974), in which the court said:

Nor does the concept of economic feasibility necessarily guarantee the continued existence of individual employers. � It would appear to be consistent with the purposes of the Act to envisage the economic demise of an employer who has lagged behind the rest of the industry in protecting the health and safety of employees and is consequently financially unable to comply with new standards as quickly as other employers. � (footnote omitted).

499 F.2d at 478.

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In Continental Can Co., supra, the Commission held that the Secretary has the burden of proving that controls are economically feasible. Writing for the majority, I reasoned that in determining whether controls are economically feasible all relevant cost and benefit factors must be weighed and it must be shown that the cost of the controls are justified by the benefits they produce. � This interpretation of the noise standard has been approved by the two courts of appeals that have considered the question. � RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979); Turner Co. v. Secretary of Labor, 561 F.2d 82 (7th Cir. 1977). I adhere to the position that economic feasibility must be measured in terms of a cost-benefit test and am not persuaded by arguments to the contrary.

The basic defect in the Secretary's argument equating feasibility with financial viability is that it assumes an employer's entire resources are available to correct an excessive noise problem without regard to the extent of the problem or the actual hazard presented to employees. � Even if we focus only on an � [*22] � employer's obligation to comply with the Act, an employer cannot apply all its resources to eliminate excessive noise. Employers must comply with a great number of standards under the Act, and compliance with various standards may require significant expenditures. � While compliance with one standard may not endanger an employer's financial viability, compliance with all of them may. � To recognize this is not to question the need for or the appropriateness of any of the Secretary's standards; it is merely to recognize that it is inappropriate to consider, as would the Secretary, whether the cost of complying with a single standard will threaten an employer's financial viability. For this reason, the Secretary's test for economic feasibility is unacceptable.

Obviously, it would also be inappropriate to define economic feasibility in terms of some absolute number of dollars. � A large expenditure of funds may well be justified to achieve considerable benefits to employees' health, and even a relatively small expenditure may be too much if the benefits are negligible. � These extreme situations demonstrate that feasibility must include some balancing of costs and benefits to avoid unreasonable [*23] � results. � An example will serve to further illustrate this point.

In West Point Pepperell, Inc., 77 OSAHRC 48/B14, 5 BNA OSHC 1257, 1977-78 CCH OSHD P21,751 (No. 8255, 1977), aff'd, 588 F.2d 979 (5th Cir. 1979), 380 employees were exposed to approximately twice the noise dosage permitted by the standard. � The Secretary proposed, among other things, that the employer adopt the administrative control of having each employee work a four-hour shift each day, which would have achieved full compliance with the standard. � If this control was implemented, then to maintain full production the employer would have to hire and train an additional 380 workers to work the other four hours each day. � The record showed that the cost of obtaining and training such a crew would be approximately 2.6 million dollars.

The administrative control suggested by the Secretary would have resulted in the noise exposure of the original 380 employees being halved. � It would also have meant, however, that 380 additional employees would be exposed to high noise levels for four hours each day, although such levels would be permitted by the standard. n10 The net benefit the control would have achieved was [*24] � also reduced by the fact that the original employees were receiving some protection from their current use of personal protective equipment, equipment that would not be needed if the control was implemented. � Moreover, the affected employees would have sustained the loss of part of their weekly wages as a result of their reduced workweeks.

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n10 The fact that an employer may be in full compliance with the standard does not guarantee that there is no hazard to the hearing of its employees, for a noise level of 90 dBA for an eight-hour day still presents a hazard to some employees. � As the Secretary has stated in proposing a revised noise standard, "(w)ith regard to the risk of hearing loss, OSHA recognizes that comparatively more workers will be at lower risk at 85 dBA than at 90 dBA." 39 Fed. Reg. 37,773 (1974).

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Such considerations led me to conclude in Continental Can that the economic feasibility of controls had to be determined by weighing the cost of controls against the benefits they would achieve in each individual [*25] � case. � Commissioner Cottine asserts that a cost-benefit test results in arbitrary and unequal treatment of employers, and argues instead that ignoring costs entirely will maintain the competitive position of different employers. n11 This assumes that all employers, without regard to their size or financial strength, can equally "afford" to implement the same controls without their competitive position being affected. � This is obviously not the case even among employers who are not lagging behind their industry in providing a safe and healthful workplace. Commissioner Cottine's analysis also ignores competitive factors that reach beyond an employer's own industry, such as the fact that an entire industry's product may become non-competitive with a substitute product if its cost becomes too high, and the fact that many domestic employers compete with foreign companies who are not required to comply with the Act.

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n11 Commissioner Cottine concludes that costs have no role in determining feasibility but only enter into establishing an appropriate abatement date. � Underlying Commissioner Cottine's conclusion, which goes beyond what even the Secretary argues, is the assumption that any employer can "afford" controls if their cost is spread out over a sufficient length of time. � While this assumption may have merit in some situations where controls require only a one-time expenditure, it obviously fails when controls involve substantial continuing costs. � Lengthening the abatement period does nothing to enable an employer to better "afford" such continuing costs.

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These problems are reduced if the cost of controls must bear a reasonable relationship to the benefits to be achieved. � By assuring that substantial sums are spent only for worthwhile purposes, a cost-benefit test leads to the result that only those economic dislocations necessary to provide important health benefits to employees will occur. n12

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n12 I agree with my colleagues that economic hardship can be alleviated in appropriate cases by adjusting the time allowed for abatement. That is true regardless of the test for economic feasibility that is applied. � I disagree with my colleagues' action, however, in shifting the burden to the employer to prove that the abatement date in a citation is unreasonable. � The Commission has recently held that, when a citation is contested, "(t)he burden of proving the reasonableness of the abatement date lies with the Secretary." Gilbert Mfg. Co., 79 OSAHRC    , 7 BNA OSHC 1611, 1613, 1979 CCH OSHD P23,782 at 28,847 (No. 76-4719, 1979). � Indeed, it was partly to avoid shifting this burden to employers in certain cases that led Commissioner Cottine to dissent in Gilbert. 7 BNA OSHC at 1616, 1979 CCH OSHD at 28,849.

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Commissioner Cottine also suggests that cost-benefit balancing is too complex for the Commission to employ. � However, the entire subject of noise control is complex. � Under any test, there will be clear cases and there will be cases in which fine lines must be drawn. � The Commission has, I believe, reasonably applied the cost-benefit test in the past, demonstrating that the task is not unsurmountable. � See West Point Pepperell, Inc., supra; Carnation Co., 78 OSAHRC 54/D9, 6 BNA OSHC 1730, 1978 CCH OSHD P22,837 (No. 8165, 1978), appeal filed, No. 78-2894 (9th Cir. Aug. 18, 1978); Castle & Cooke Foods, supra; Great Falls Tribune Co., 77 OSAHRC 86/B7, 5 BNA OSHC 1443, 1977-78 CCH OSHD P21,844 (No. 6632, 1977), appeal filed, No. 77-2566 (9th Cir. July 14, 1977); Louisiana-Pacific Corp., 77 OSAHRC 187/A2, 5 BNA OSHC 1994, 1977-78 CCH OSHD P22,261 (No. 10639, 1977) (concurring opinion). � Although it is true that any test which ignores costs entirely has the virtue of simplicity, it has little else to recommend it. n13

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n13 A cost-benefit test avoids the potentially much more difficult questions inherent in the Secretary's financial viability test. � Under that test, the Commission would be faced with the task of determining whether a particular expenditure would indeed jeopardize an employer's financial existence and, if so, whether that expenditure should nonetheless be required because the employer has been lagging behind its industry in protecting the safety and health of its employees. � Such questions would require a detailed examination of the financial structure of an entire industry.

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For the above stated reasons, I continue to believe that the Commission must "weigh the costs of compliance against the benefits expected to be achieved thereby in order to determine whether the proposed remedy is economically feasible." RMI Co. v. Secretary of Labor, supra, 594 F.2d at 573.

IV.

The Secretary has established the technological feasibility of controls in this case. � A substantial reduction of at least 10 dBA in the existing noise levels could be achieved by installing [*29] � acoustical enclosures around Samson's machines. This would involve applying existing technology to the particular conditions in Samson's plant, not the development of new technology.

As discussed above, there was conflicting evidence regarding both the initial cost of developing and installing enclosures and the continuing cost in terms of lost productivity such controls would cause. � Although the judge purported to rely on Continental Can in reaching his decision, he did not make findings resolving the evidentiary conflicts or weigh the costs against the benefits of the suggested engineering controls.

Although the Commission can make its own findings on economic feasibility, n14 I would not do so on the present record. � This case was tried before Continental Can was decided and, although the parties presented some evidence on economics, the issue was not fully litigated. � Indeed, at the hearing the Secretary stated that he was not prepared to try the issue of economic feasibility. While Meyerson subsequently testified as to some cost factors, these were only rough estimates and had not been formulated prior to the hearing. � To accept one party's cost figures over the � [*30] � other on this record, or to select some intermediate figure, would be pure speculation. � Accordingly, I would remand the case to afford the parties an opportunity to present further evidence on the economic feasibility issue. � RMI Co. v. Secretary of Labor, supra; Atlantic Steel Co., 78 OSAHRC 6/A2, 6 BNA OSHC 1289, 1977-78 CCH OSHD P22,483 (No. 13439, 1978); Price-Potashnick-Codell-Oman, 77 OSAHRC 212/A2, 6 BNA OSHC 1179, 1977-78 CCH OSHD P22,411 (No. 13171, 1977).

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n14 Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied 425 U.S. 903 (1976).

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For the reasons stated in their separate opinions, my colleagues agree that the controls suggested by the Secretary are technologically feasible. Although my colleagues disagree with my views on economic feasibility, they nevertheless agree that Continental Can remains the dispositive Commission precedent on the issue. � They agree that the case should be remanded to enable the parties to present further evidence on economic [*31] � feasibility and for the judge to issue a new decision based on the cost-benefit test established in Continental Can.

Accordingly, the judge's decision is set aside and the case is remanded for further proceedings consistent with this opinion. � SO ORDERED. �

CONCURBY: CLEARY; COTTINE

CONCUR:

CLEARY, Chairman, concurring:

I agree that the Secretary has established the technological feasibility of the engineering controls at issue in this case. � Accordingly, the judge's conclusion on the issue of technological feasibility should be affirmed. � Although the controls suggested by the Secretary were not the "off-the-shelf" type, their final form is not so much the development of new technology as it is the adaptation of existing technology to a new use. � In addition, I agree that the record demonstrates that the reduction in noise upon implementation of the controls will be significant.

At this moment the Commission's decision in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (Nos. 3973, et al., 1976), appeal withdrawn, No. 76-3229 (9th Cir. 1977) ("Continental Can"), authored by Commissioner Barnako, represents our precedent on the noise standard [*32] � n15 and its interpretation. � The lead opinion in this case, also authored by Commissioner Barnako, adheres to that precedent. � Although both Commissioner Cottine and I disagree in different degrees with the economic feasibility analysis contained in Commissioner Barnako's interpretation of the noise standard, we have not been able to arrive at a new majority interpretation. � For reasons set forth more fully in Commissioner Cottine's separate opinion, I agree that we must continue to apply current Commission precedent until we are able to agree on a new majority interpretation for the noise standard. � See Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412 U.S. 800 (1973). Therefore, I concur with Commissioner Barnako's conclusion that the case should be remanded for further proceedings consistent with the Commission's decision in Continental Can.

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n15 29 C.F.R. � � 1910.95(b)(1); see note 1 supra.

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Almost four years ago, the Review Commission issued its decision in Continental Can. [*33] � Speaking for the majority in Continental Can, Commissioner Barnako concluded that "the [noise] standard should be interpreted to require those engineering and administrative controls which are economically, as well as technically feasible" (emphasis added). � 4 BNA OSHC at 1547, 1976-77 CCH OSHD at p. 25,256.

Both before and after the Commission's Continental Can decision, a number of federal courts have had the opportunity to examine the term "feasible," with particular emphasis on the role to be played by economics. � In a 1979 decision, a review of circuit court opinions led the United States Court of Appeals for the Sixth Circuit to conclude as follows:

A consensus is developing among the circuits that the term [feasible] should encompass both technological and economic feasibility. Numerous cases have hald that the Secretary should weigh the estimated costs of compliance against the benefits reasonably expected therefrom when promulgating or enforcing a regulation. � American Petroleum Inst. v. OSHA, 581 F.2d 493, 502-03 (5th Cir. 1978), cert. granted    U.S.   , 99 S.Ct. 1212, 59 L.Ed.2d 453 (1979); American Iron & Steel Inst. v. OSHA, 577 F.2d 825, � [*34] � 835-37 (3rd Cir. 1978) cert. den., 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978) [sic]; U.P.S. of Ohio, Inc. v. OSHRC, 570 F.2d 806, 811-12 (8th Cir. 1978); AFL-CIO v. Brennan, 530 F.2d 109, 122-23 (3d Cir. 1975); Arkansas - Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 653-54 (8th Cir. 1976); Industrial Union Dept., AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 341, 499 F.2d 467, 477 (1974). See also I.T.O. Corp. v. OSHRC, 540 F.2d 543, 546 (1st Cir. 1976); Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 548, 555 (3d Cir. 1976). These cases have reached such results based upon Congressional intent derived both from the statutory scheme and language and legislative history of the Act (footnote omitted). n16

RMI Co. v. Secretary of Labor and OSHRC, 594 F.2d 566, 571-72 (6th Cir 1979). After examining the position of the Seventh Circuit in its Turner Co. decision n17 and the position of the Commission majority in Continental Can, the Sixth Circuit agreed with the consensus and concluded that the term "feasible" as used in the noise standard involves economic as well as technological considerations. � 594 F.2d at 572. � [*35] �

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n16 The Court made no distinction between enforcement proceedings before the Review Commission and the procedure for promulgating new standards.

n17 The Sixth Circuit noted that

the seventh circuit has held that the word 'feasible' in � � 1910.95(b)(1) should be construed to include both technological and economic feasibility. Turner Co. v. Secretary of Labor, 561 F.2d 82 (7th Cir. 1977). The court said such a construction was 'in accord with the clear intent of Congress and the purpose of the Occupational Safety and Health Act.' Id. at 83 (footnote omitted).

594 F.2d at 572.

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I dissented in Continental Can. My dissent took issue with the lead opinion for including economic considerations in its construction of the noise standard's key term "feasible" and for placing on the Secretary the burden of proving economic feasibility. While my dissent in Continental Can made it clear that economic considerations are relevant in fashioning an appropriate abatement order, I said that economics should play [*36] � no role in determining "feasibility." 4 BNA OSHC at 1550, 1976-77 CCH OSHD P21,009 at p. 25,259.

Commissioner Cottine's separate opinion in this case essentially follows the rationale expressed in my Continental Can dissent on the issue of economic feasibility. I have carefully reexamined this issue in light of subsequent cases and conclude that the position expressed in my Continental Can dissent simply is not responsive to either the clear intent of Congress or to the realities of the workplace. While my view of the role to be played by economics in determining feasibility is narrower than that expressed by Commissioner Barnako, I agree with him that economics must play some role in determining whether controls are "feasible." To the extent Commissioner Barnako and I disagree on the weight to be given to the cost factor, it can be traced to my belief in the noise standard's overwhelming preference for engineering controls. � See note 1 supra.

Economics, as a factor to be considered by the Commission, comes into play in cases arising under the noise standard at two separate and distinct points in our analysis. � First, when a noise problem has been shown to exist [*37] � at respondent's worksite, economics, in the form of a cost factor or cost estimate, plays a role in a feasibility determination with respect to suggested abatement controls. � Second, when the suggested controls have been shown to be technologically and economically feasible, economics, in the form of the financial situation of the individual respondent, can play a role in fashioning an appropriate abatement order if the issue has been raised by the respondent.

Perhaps the most practical way of defining the term "feasible" under these circumstances is to indicate what would be economicallt "infeasible," that is, we should identify the terminal point of "feasibility" for the economic or cost factor. � Here, my approach is similar to that concerning compliance costs discussed in AFL-CIO v. Marshall, No. 78-1562 (D.C. Cir. October 24, 1979), petition for cert. filed sub nom. Amerian Textile Manufacturers Institute, Inc. v. Marshall, 48 U.S.L.W. 3701 (U.S. March 14, 1980) (No. 79-1429). � In that case, which involved a challenge to the new health standard limiting employee exposure to cotton dust, the D.C. Circuit reiterated its position that "costs cannot be 'prohibitively � [*38] � expensive.'" Slip op. at 49. � The argument that a determination of economic feasibility requires a formal cost-benefit analysis was rejected by the Court. � While it examined costs in determining feasibility, the Court concluded that "[n]othing in the statute or its legislative history requires a further determination that the costs . . . bear a 'reasonable' relationship to . . . benefits." (footnote omitted) Slip op. at 56.

In my view, for cases arising under the noise standard, if the expected reduction in noise through the implementation of engineering controls is insignificant in terms of increased hearing protection and the noise level is not expected to approach permissible limits while the cost of implementing the controls is great, then the controls should be deemed "prohibitively expensive" or economically "infeasible." n18 This is my terminal point of feasibility for the economic factor.

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n8 This assumes, of course, that respondent has an effective and ongoing program of personal protective equipment for its employees.

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This view of economic feasibility in the interpretation of standards is not new. � It was urged by the Secretary in Castle & Cooke Foods, 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD P21,854 (No. 10925, 1977), appeal docketed, No. 77-2565 (9th Cir. July 14, 1977). � In that case, Commissioner Barnako rejected this approach stating "[w]e do not think that consideration of the cost of controls should be limited as the Secretary suggests." 5 BNA OSHC at 1438, 1977-78 CCH OSHD at p. 26,329. Commissioner Barnako found this approach unacceptable because, in his view, it fails to recognize that an employer has limited resources with which to abate all health and safety hazards and it does not distinguish between possible hearing loss and life threatening hazards. Id.

In Continental Can, I said

The Secretary should not be forced to choose between hazards. Rather, he should be free to require literal compliance with both standards. � Any balancing that takes place should be in the context of determining the relative time needed to comply literally with both standards, i.e. in framing appropriate abatement orders (emphasis in original; footnote omitted). � [*40] �

4 BNA OSHC at 1553, 1976-77 CCH OSHD at p. 25,261. My view of this aspect of the noise problem has not changed.

What all of our words amount to is an attempt to develop a test to determine whether it is both economically and technologically feasible to use engineering controls under the circumstances of a particular case. � There is no simple formula to arrive at the answer. � Factors such as the noise level, the possibility of hearing loss, the cost of abatement, the possible impact upon the jobs of affected employees, the state of the technical art, industry practice, and comparable situations in other industries may merit consideration. � One aspect of the problem, however, is clear. � Our approach must be reasonable and realistic. � No fair reading of the standard should force an employer into an open-ended research and development program in order to abate a noise citation. � Further, it should not force an employer into an abatement situation that, from an economic standpoint, is patently unreasonable. � On the other hand, there is no reason to use a formal "cost-benefit analysis," with all that the term implies, in order to make our determination in a particular case. n19 Thus, � [*41] � to the extent the Commission's decision in Continental Can stands for the use of a formal cost-benefit analysis in cases involving the noise standard, I agree with Commissioner Cottine that Continental Can should be overruled. � I note parenthetically that a comprehensive cost-benefit analysis has seldom if ever been used by the Commission, even under Continental Can.

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n19 I agree essentially with the conclusion drawn by Prof. Nicholas A. Ashford in an essay contained in a recent publication of the U.S. Department of Labor. Prof. Ashford states

Economic analysis can be useful in discovering where economic burdens might be severe. This discovery may encourage the search for creative technological alternatives which provide the desired worker protection in a less burdensome way for particular industrial sectors. � This analysis is not a cost-benefit analysis, however, but rather a search for cost-effective solutions to a specific occupational hazard. (emphasis added)

N.A. Ashford, Economic Issues in Occupational Health and Safety, in Protecting People At Work at 72 (U.S. Dept. of Labor 1980).

� [*42] �

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In my opinion, in order to establish his prima facie case under the noise standard, the Secretary must show that (a) a respondent's comployees are exposed to noise levels in excess of those permitted by Table G-16 of the standard (b) there are technologically feasible controls available to reduce the noise, and (c) the cost of compliance is not "prohibitively expensive" using the test indicated earlier. � Then, in addition to having an opportunity to rebut the Secretary's prima facie case, the employer can introduce evidence of its financial situation as well as evidence on any other matter relevant to the setting of an appropriate abatement schedule.

In the instant case, Respondent stipulated that the noise levels at its plant exceeded those permissible. � As indicated, I agree with the judge's conclusion that the controls suggested by the Secretary through his expert witness are technologically feasible. Finally, the record supports a finding that the expected noise reduction will be at least 10 dBA, resulting in a noise level approaching or within permissible limits. � Under such circumstances, even [*43] � the highest estimated cost of implementation in the record is not "prohibitively expensive" or patently unreasonable. � Accordingly, the Secretary proved his case. � Because Respondent did not rebut the Secretary's showing, I would affirm Judge Fier's finding of a violation resulting from Respondent's failure to comply with the standard at 29 C.F.R. � � 1910.95(b)(1).

Respondent did, however, introduce evidence of its financial situation, and Judge Fier properly considered this evidence in allowing an appropriate abatement period. � I find no convincing reason to afford Respondent the opportunity to reopen the record to present additional evidence and, therefore, would ordinarily oppose a remand under these circumstances. � As stated at the outset, however, because of our inability to arrive at a new majority interpretation for the noise standard, I conclude that the case must be remanded for further proceedings consistent with our current precedent, Continental Can.

COTTINE, Commissioner, concurring.

The occupational noise standard, 29 C.F.R. � � 1910.95(b)(1), requires that administrative or engineering controls be used as the primary means of protecting employees against the hazard [*44] � of excessive noise exposure. Continental Can Co., 76 OSAHRC 109/A2, 5 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (Nos. 3973 et al., 1976), appeal withdrawn, No. 76-3229 (9th Cir. Aug. 26, 1977). � Personal protective equipment is to be used as supplemental protection when controls alone cannot reduce employee noise exposure to permissible levels. � Id.

The controversy concerning this standard revolves in large part around whether achieving protection against excessive noise by engineering controls should be preferred over the less expensive method of personal protective equipment. � That engineering controls are more effective than the use of personal protective equipment in protecting employees from the hazards associated with excessive noise exposure has long been recognized by the Commission. � E.g., Continental Can Co., supra; Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1976-77 CCH OSHD P21,023 (No. 3635, 1976), remanded, 561 F.2d 82 (7th Cir. 1977). Commission cases involving the noise standard also reveal that some employees will not always wear ear protectors, and others will not receive full protection from them due to improper fit or use. � [*45] � Continental Can Co., supra. Furthermore, the testimony of the Secretary's industrial hygienist in this case indicates that although ear muffs and earplugs are capable of reducing ("attenuating") noise levels to within acceptable levels, their effectiveness is subject to several variables. � The attenuation factors given by the manufacturer of the earplug may not be sustained throughout the working day due to "changes in temperature", "internal body chemistry", swelling of the ear, and improper placement or dislodgement of the plug. n1

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n1 The magnitude of the hazard associated with exposure to excessive noise is not in issue. � Indeed, in one case involving the occupational noise standard an administrative law judge referred to industrial studies indicating that at 90 decibels 10 percent of the exposed population would have significant hearing loss at retirement, and at 100 decibels 90 percent of the exposed population would have significant hearing loss at retirement. � � The results of these studies were based on the exposure of individuals not wearing ear protection. � However, because of the recognized problems associated with exclusive reliance on personal protective equipment, particularly the frequency of nonuse in previous cases, these studies are equally significant to the issues before the Commission in this case.

In addition, it must be noted that the Secretary is considering whether to reduce the permissible noise exposure limit to a level below the current eight hour time weighted average of 90 dBA based on recommendations submitted by the Environmental Protection Agency (EPA) and the National Institute for Occupational Safety and Health (NIOSH). � 39 Fed. Reg. 37773 (October 24, 1974). � On the basis of its review of "hearing impairment and risk," EPA recommended that the limit be reduced at least to 85 dBA, with a further reduction some time in the future. � NIOSH "indicated a need for reducing this eight hour exposure level to 85 dBA, but was unable to recommend a specific time period after which the 85 dBA noise level should become effective for all industry due to the unavailability of sufficient data relating to technological feasibility of this level." Id.

� [*46] �

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In Turner Co., supra, the Commission reviewed the rationale underlying the standard's preference for engineering and administrative controls in response to Turner's due process attack on the standard. � It was noted that controlling noise at its source or along the transmission pathway solves most, if not all, of the major safety and health problems associated with excessive noise. This type of control prevents not only hearing loss, but other adverse, non-auditory effects of a physiological or psychological nature. n2 It also eliminates the problems associated with employee resistance to the use of personal protective equipment resulting from the discomfort occasionally caused by its use, n3 the obvious problem of communication among workers, and the fact that hearing impairment due to excessive noise exposure occurs over a prolonged period of time. n4

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n2 For a general review of auditory and non-auditory effects of exposure to high noise levels, see U.S. ENVIRONMENTAL PROTECTION AGENCY, PROCEEDINGS OF THE INTERNATIONAL CONGRESS ON NOISE AS A PUBLIC HEALTH PROBLEM (1974); NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, U.S. DEPT. OF HEALTH, EDUCATION AND WELFARE, OCCUPATIONAL EXPOSURE TO NOISE (1972).

n3 In AFL-CIO v. Marshall, No. 78-1562 (D.C. Cir. Oct. 24, 1979), petition for cert. filed sub nom. American Textile Manufacturers Institute, Inc. v. Marshall, 48 U.S.L.W. 3701 (U.S. March 14, 1979) (No. 79-1429), the U.S. Court of Appeals for the District of Columbia Circuit determined that OSHA's rejection of personal protective equipment as a substitute for engineering control of employee exposure to cotton dust was reasonable. � The court based its conclusion on OSHA's findings regarding the physical discomfort and safety problems associated with the use of personal protective equipment as well as the inappropriate shifting of the burden of compliance to employees.

n4 Senate Report No. 91-1282 which accompanied the original Senate version of the Act (S. 2193) points out that where the period of time between exposure and the manifestation of illness is extended, an "employer has no economic incentive to invest in current precautions because he will seldom have to pay for the consequences of his own neglect." S. Rep. No. 91-1282, 91st. Cong., 2d Sess. (1970), reprinted in LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 at 141, 144 (1971).

� [*47] �

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I

Claims of infeasibility fall into two distinct factual categories: technological infeasibility of abatement and economic infeasibility of compliance. � See Industrial Union Department, ALF-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974). It is critical to distinguish between these two claims of infeasibility, for one refers to the availability of technology and the other to the financial ability of an employer to achieve abatement over an established period of time.

Technological Feasibility

Judge Fier found engineering controls to be technologically feasible, although not immediately available. n5 Samson argues that a violation of the cited standard cannot be found when there are no existing or known engineering controls immediately available to reduce noise levels in a plant manufacturing paper bags to within Table G-16 levels.

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n5 Samson disputes the judge's finding on this issue, challenging the credibility of the Secretary's expert witness and arguing that the Secretary failed to establish by a preponderance of the evidence that engineering controls are technologically feasible. The judge's finding as to technological feasibility is based in large part on credibility determinations on factual matters, is supported by the evidence, and should not be disturbed. � C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CH OSHD P22,481 (No. 14249, 1978). � In addition, Samson's own witness, an acoustical engineer, acknowledged an anticipated "feasible" noise reduction from the prototype enclosure being developed by his firm for paper bag manufacturing machinery.

� [*48] �

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Occupational safety and health standards "are intended to be the primary method of achieving the policies of the Act," Brennan v. OSHRC & Underhill Const. Corp., 513 F.2d 1032, 1038, (2d Cir. 1975); see also Diebold, Inc. v. Marshall, 585 F.2d 1327, 1330 (6th Cir. 1978), and must be interpreted in light of the Act's express Congressional purpose of providing a safe and healthful workplace. See Southern Railway Co. v. OSHRC, 539 F.2d 335, 338 (4th Cir. 1976); Brennan v. OSHRC & Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974). The Act was passed "in response to an appalling record of death and disability in our industrial environment," n6 Southern Railway Co. v. OSHRC, supra, and was intended to promote and improve employee safety beyond the existing levels of injuries and illnesses that were found to impose a substantial burden on interstate commerce. � 29 U.S.C. � � 651. The Act was designed

to reduce "work-related injuries and illnesses," which cause "even-increasing human misery and economic loss." S.Rep. No. 91-1282, 91st Cong., 2d Sess. (1970) . . .

Brennan v. � [*49] �� OSHRC & Gerosa, Inc., 491 F.2d at 1343. Moreover, safety and health standards may require improvements in existing technology or the development of new technology. n7 See Society of the Plastics Industry v. OSHA, 509 F.2d 1301 (2d Cir. 1975), Cert. denied, 421 U.S. 992 (1975). Standards may also "force technological advances . . . which are beyond what industry is immediately capable of attaining." Diebold v. Marshall & OSHRC, supra at 1333. � And, in American Federation of Labor v. Brennan, 530 F.2d 109 (3d Cir. 1975), the court agreed with the decision in Society of the Plastics Industry, Inc. v. OSHA, supra, "that, at least to a limited extent, OSHA is to be viewed as a technology forcing piece of legislation." n8 530 F.2d at 121. See AFL-CIO v. Marshall, no. 78-1562, slip op. at 36 (D.C. Cir. Oct. 24, 1979), petition for cert. filed sub nom. American Textile Manufacturers Institute, Inc. v. Marshall, 48 U.S.L.W. 3701 (U.S. March 14, 1979) (No. 79-1429).

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n6 For the years 1966-70, industrial accidents resulted in 14,500 deaths and 2.2 million disabilities annually. � Lost wages amounted to $1.5 billion annually for lost workdays and the annual loss to the Gross National Product exceeded $8 billion. � H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. (1970), reprinted in LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, 831, 844 (1971). � See Brennan v. OSHRC & Underhill Const. Corp., supra; Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1259 (4th Cir. 1974); Brennan v. OSHRC & Gerosa, Inc., supra. In addition, the Surgeon General of the United States discovered, based on a 1966-67 survey of 1700 industrial plants that employed 142,000 workers, "that 65 percent of the people were potentially exposed to toxic materials or harmful physical agents, such as severe noise or vibration." H.R. Rep. No. 91-1291, supra at 845. � The study estimated that there were 336,000 cases of industrial diseases nationally for that time period, an estimate that was actually exceeded, according to U.S. Public Health Service records, by the time the Act was debated. � Id. A recent study by the Bureau of Labor Statistics reveals that the number of occupational injuries and illnesses in 1977 increased by 5 percent over 1976, from 5.16 million to 5.46 million. � The study estimated 162,000 recognized occupational illnesses for 1977. � U.S. Department of Labor, BLS Reports on Occupational Injuries and Illnesses for 1977, USDL Release No. 78-951 (Nov. 21, 1978).

n7 Technological progress in industrial production "appears not to have been accompanied uniformly by corresponding reductions in the health hazards of industrial working conditions." Industrial Union Department, AFL-CIO v. Hodgson, supra at 470.

n8 Section 2(b) of the Act, 29 U.S.C. � � 651(b), indicates that Congress intended to achieve the Act's stated purpose by, inter alia, stimulating "employers . . . to institute new and to perfect existing programs for providing safe and healthful working conditions," 29 U.S.C. � � 651(b)(1), and "by building upon advances already made . . . ." 29 U.S.C. � � 651(b)(4).

� [*50] �

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The Secretary correctly observes that the authority to promulgate technology-forcing standards "carries with it the corresponding authority to enforce these standards during this technology forcing stage." (Brief of the Secretary of Labor, p. 11.) This can be accomplished by requiring either the development of new technology or the adaptation of already developed technology. 29 U.S.C. � � � 651(b)(1) and (b)(4). n9 Samson's argument that technological feasibility has not been established when effective controls are not shown to be immediately available must, therefore, be rejected. � The evidence in this case clearly establishes that specific engineering methods are available, using conventional materials and existing technology. Moreover, these methods can be adapted to Samson's machinery to achieve significant noise reduction. See Castle & Cooke Foods, a Division of Castle & Cooke, Inc., 77 OSAHRC 87/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD P21,854 (No. 10925, 1977), appeal filed, No. 77-2565 (9th Cir. July 14, 1977).

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n9 See note 8 supra.

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Furthermore, as the Commission observed in Continental Can Co., supra, controls are technologically feasible even though the noise reduction accomplished by their implementation does not reduce the noise within permissible levels. � The standard contemplates situations in which controls will benefit employee health but be unable to achieve optimal results. � The Act directs the Secretary "to act to protect the workingman, and to act even in circumstances where existing methodology or research is deficient." Society of the Plastics Industry v. OSHC, supra at 1308. n10

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n10 Requiring the use of protective methods or devices even though complete protection cannot be afforded to employees is consistent with the position the Commission has taken with respect to other standards. � See, e.g., Valley Roofing Corp., and J.B. Eurell Co., 78 OSAHRC 27/C14, 6 BNA OSHC 1513, 1978 CCH OSHD P22,633 (No. 15800, 1978) (personal protective equipment); Building Products Co., 77 OSAHRC 165/A2, 5 BNA OSHC 1773, 1977-78 CCH OSHD P22,102 (No. 14240, 1977) (saw guarding).

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The evidence in this case establishes that at least a 10 dBA noise reduction can be achieved by the use of engineering controls. � This represents a significant noise reduction. Accordingly, it is appropriate to affirm the judge's conclusion that the Secretary has sustained his burden of proving that engineering controls are technologically feasible.

Economic Feasibility

In addition, Samson argues that implementation of engineering controls is not economically feasible. It relies on prior Commission decisions holding that controls are "feasible" within the meaning of � � 1910.95(b)(1) only if they are demonstrated to be "economically feasible" on the basis of cost-benefit analysis. � See e.g., Great Falls Tribune Co., 77 OSAHRC 86/B7, 5 BNA OSHC 1443, 1977-78 CCH OSHD P21,844 (No. 6632, 1977), appeal filed, No. 77-2566 (9th Cir. July 14, 1977); Castle & Cooke Foods, supra; Turner Co., supra; Continental Can Co., supra. The decision in Continental Can Co. placed the burden of proof in this regard upon the Secretary as part of his prima facie burden of [*53] � establishing a violation of the occupational noise standard.

The Secretary of Labor continues to argue, as he has in all cases before the Commission involving the interpretation and application of the noise standard, that the burden of establishing economic feasibility was inappropriately assigned to him and that the cost-benefit test should be rejected. n11 He also maintains that the judge properly found controls to be economically feasible in this case. � The Secretary cites to Chairman Cleary's dissenting opinion in Continental Can, supra, where the Chairman stated that economic factors may be considered in establishing an abatement requirement, but should not be the basis for vacating the citation.

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n11 The Secretary has also consistently maintained that controls may be economically infeasible only if they affect the financial viability of an employer. � He also argues in this case, citing Industrial Union Department, AFL-CIO v. Hodgson, supra, that even financial non-viability may not be an appropriate defense if an employer is "lagging" behind its industry in safety compliance. � Brief of the Secretary of Labor at 17 n. 6a.

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The initial burden of proving the existence of controls technologically capable of reducing employee noise exposure rests with the Secretary. n12 The majority in Continental Can read the term "feasible" in � � 1910.95(b)(1) as imposing on the Secretary the additional burden of establishing that the controls are economically feasible. Having carefully re-examined the divided Commission decision in Continental Can in light of the arguments made by the parties in this case, I conclude that the interpretation of the term "feasible" in � � 1910.95(b)(1) and the allocation of burdens that flowed from it are erroneous and fundamentally inconsistent with the purposes and provisions of the Act. � Although continuity and predictability in the law are important considerations, stare decisis does not bar a re-examination of precedent when that precedent frustrates rather than furthers congressional policy. � See Boys Markets, Inc. v. Retail Clerk's Union, Local 770, 398 U.S. 235, 240-41 (1970).

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n12 See e.g., Continental Can Co., supra; Turner Co., supra; Love Box Co., 76 OSAHRC 45/D5, 4 BNA OSHC 1138, 1975-76 CCH OSHD P20,588 (No. 6286, 1975).

� [*55] �

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The economic impact of implementing engineering controls to reduce employee exposure to noise may be considered in establishing a reasonable abatement date in order to avoid imposing an undue financial burden on an employer. � Cf. Union Electric Co. v. E.P.A., 427 U.S. 246, 268 (1976). Economic impact is not determinative of whether there must be compliance with the standard's requirement to reduce employee exposure to excessive noise by implementing administrative or engineering controls. � Economic justification for a lengthened abatement period must be affirmatively raised by a respondent. n13 As Chairman Cleary noted in his dissenting opinion in Continental Can, "[e]conomic factors should be considered only if raised by an employer seeking adjustment of the technologically feasible abatement period," and "[t]he pace at which abatement should proceed can be adjusted to reflect the individual employer's financial condition." The burden of producing evidence to support a lengthened abatement period is appropriately borne by the employer, who is best able to determine its own financial status. � [*56] � n14

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n13 It is particularly important for this defense to be raised by the employer early in the proceedings to allow sufficient time for both parties to develop and analyze relevant economic data.

n14 This allocation of burdens is consistent with the traditional view that the burden of proving a particular issue should be assigned to the party who has knowledge of the relevant facts and access to relevant evidence. � See Bratton Corp. v. OSHRC & Marshall, 590 F.2d 273, 277 (8th Cir. 1978); International Harvester Co. v. Ruckleshaus, 478 F.2d 615, 643 (D.C CIR. 1973); Anning-Johnson Co., 76 OSAHRC 54/A2, 54/A14 n. 14, 4 BNA OSHC 1193, 1198 n. 14, 1975-76 CCH OSHD P20,690 at p. 24, 782 n. 14 (Nos. 3694 & 4409, 1976); J.E. Roupp and Co., Inc. and Denver Dry Wall Co., 74 OSAHRC 20/C1, 1 BNA OSHC 1680, 1973-74 CCH OSHD P17,660 (Nos. 146 & 147, 1974); MCCORMICK ON EVIDENCE � � 337 (2d ed. 1972). � This allocation is also consistent with the employer's burden during an abatement modification proceeding under 29 U.S.C. � � 659(c) and Commission Rule 34, 29 C.F.R. � � 2200.34, to show that despite "a good faith effort to comply . . . abatement has not been completed because of factors beyond his reasonable control." 29 U.S.C. � � 659(c). � Gilbert Manufacturing Co., Inc., 79 OSAHRC 68/A2, 7 BNA OSHC 1611, 1979 CCH OSHD P23,782 (No. 76-4719, 1979). � Moreover, in AFL-CIO v. Marshall, supra, the court stated that "[t]he very nature of economic analysis frequently imposes practical limits on the precision which reasonably can be required of the agency." Slip op. at 48. � In that case, as in the case before, us, the pertinent data was in the control of the employer and the regulated industry.

� [*57] �

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The Continental Can majority rejected the Secretary's argument that economic factors should be considered only if the cost of implementing controls would seriously jeopardize the financial condition of a company. � According to that majority, the Secretary's approach fails to distinguish between potential hearing loss and life threatening hazards and it fails to take into consideration the finite available to employers to abate workplace hazards. This issue necessarily involves a consideration of the statutory authority for standards promulgation and adjudication.

Congress delegated to the Secretary of Labor the authority to adopt or promulgate standards designed to improve the safety and health of American workers. � 29 U.S.C. � � 655. The occupational noise standard was an established federal standard, originally promulgated under the Walsh-Healey Public Contracts Act, 41 U.S.C. � � 35 et seq., and later adopted as an occupational safety and health standard by the Secretary under section 6(a) of the Act, 29 U.S.C. � � 655(a). � Section 6(a) authorized the Secretary to adopt "as an occupational [*58] � safety or health standard any national consensus standard, and any established Federal standard, unless he determined that the promulgation of such a standard would not result in improved safety and health for specifically designated employees." Consistent with this statutory provision, the Secretary exercised this promulgation authority with respect to the standard before us, having concluded that the standard is necessary for employee safety and health.

The Commission is an agency with delegated adjudicatory authority, established by Congress to allow parties in OSHA enforcement actions to litigate their claims in an independent forum. n15 29 U.S.C. � � 651(b)(3). � However, it is not within the scope of the Commission's adjudicatory functions to evaluate the comparative significance of occupational hazards or diseases. � Section 1910.95(b)(1) expresses an administrative determination that engineering controls are to be preferred over personal protective equipment as the means for protecting employees from excessive noise exposure. Were the Commission to say that compliance with this standard should be given less priority than compliance with other standards, or that a less expensive [*59] � method of protection is to be automatically preferred in contradiction of the terms of the standards, n16 the Commission would be substituting its judgment for that of the Secretary in exercising his legislative grant of discretion to set standards. � Congress clearly recognized the desirability of establishing priorities for mandatory standards and just as clearly authorized the Secretary to make this determination. � 29 U.S.C. � � 655(g). n17

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n15 H.R. Rep. No. 91-1291, supra note 6, at 831, 880.

n16 Chairman Cleary noted in his dissenting opinion in Castle & Cooke Foods, supra, "[i]t is impossible to conceive of a situation where engineering controls would cost less than ear plugs."

n17 Section 6(g) of the Act, 29 U.S.C. � � 655(g), provides the following:

(g) In determining the priority for establishing standards under this section, the Secretary shall give due regard to the urgency of the need for mandatory safety and health standards for particular industries, trades, craftspations, businesses, workplaces or work environments. � The Secretary shall also give due regard to the recommendations of the Secretary of Health, Education, and Welfare regarding the need for mandatory standards in determining the priority for establishing such standards.

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In pre-enforcement judicial review of standards promulgated under section 6(b) of the Act, the courts have found that a standard may be economically infeasible if it results in "crippling an industry or rendering it extinct," American Iron & Steel Institute v. OSHA, 577 F.2d 825, 835 (3d Cir. 1978), petition for cert. filed, 47 U.S.L.W. 3525 (U.S. Dec. 9, 1978) (No. 78-919), "making financial viability generally impossible," Industrial Union Department, AFL-CIO v. Hodgson, supra at 478, or if it causes "massive economic dislocation" in an industry. � American Federation of Labor v. Brennan, supra at 123. On the other hand, "[s]tandards may be economically feasible even though, from the standpoint of employers, they are financially burdensome and affect profit margins adversely." Industrial Union Department v. Hodgson, supra at 478. n18 Accord, Southern Colorado Prestress Company v. OSHRC, 586 F.2d 1342, 1351 (10th Cir. 1978). n19

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n18 See also Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649 (8th Cir. 1976), where the court noted that in passing the Act Congress made the legislative decision "to protect the health of employees even though increased production costs may result." 529 F.2d at 653. The court went on to state that "[t]he Act does not attempt to balance as neatly as does [the employer in that case] the cost of compliance against the cost of employees' injuries." 529 F.2d at 654.

n19 In commenting on the feasibility of safety precautions in the context of the general duty clause, 29 U.S.C. � � 654(a)(1), the court in National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973), noted that "a precaution does not become infeasible merely because it is expensive." 489 F.2d at 1266 n. 37. The court went on to state that if an employer's economic viability would be threatened, enforcement through promulgated regulations subject to industry comment was preferable to enforcement through the general duty clause. � It is clear that the court considered it appropriate that economic review be on an industry-wide rather than on an individual basis. � Futhermore, courts of appeals have recognized that an employer may be put out of business when it is "so marginally efficient or productive as to be unable to follow standards otherwise universally feasible," American Federation of Labor v. Brennan, supra at 123, or when it has "lagged behind the rest of industry in protecting the health and safety of employees and is consequently unable to comply with new standards as quickly as other employers." Industrial Union Department, AFL-CIO v. Hodgson, supra at 478, cited in AFL-CIO v. Marshall, supra at 36 n. 94, 49-50. � In this regard, "the concept of economic feasibility [does not] necessarily guarantee the continued existence of individual employers." Id.

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Senator Harrison Williams, sponsor of the original Senate bill (S. 2193), aptly pointed out that many employers could not make the necessary investment in employee safety and survive competitively unless all employers were compelled to do so. n20 Similarly, engaging in cost-benefit analysis on an individual basis to determine whether the implementation of engineering controls is required of an individual employer would result in unequal and arbitrary treatment and a competitive disadvantage for other employers who are complying with a standard. n21 A competitive advantage gained by the maintenance of an unsafe workplace is inconsistent with the policies and provisions of the Act. � We can fulfill the Act's stated purpose of improving the safety and health of American workers, and at the same time give due consideration to the realities of the marketplace, by requiring all employers to meet the standard's requirements, and then adjusting the abatement period for those financially incapable of proceeding with abatement at a more rapid pace. n22

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n20 S. Rep. No. 91-1282, supra note 4, at 141, 144, cited in American Federation of Labor v. Brennan, supra at 123 n. 39.

n21 For an analogous problem arising in the context of the Clean Air Act, 42 U.S.C. � � 1857 et seq., see International Harvester Co. v. Ruckelshaus, supra note 23, where the court observed that a relaxation of the automobile emission control standard for one manufacturer result in a competitive disadvantage for those already in the process of complying with the higher standard. � 478 F.2d at 637-38.

n22 That the Act represents a congressional decision to require safeguards for employee safety and health even though production costs would be increased was recognized by the court in Industrial Union Department, AFL-CIO v. Hodgson, supra. The court went on to note that this is not

the same thing as saying that Congress intended to require immediate implementation of all protective measures technologically achievable without regard for their economic impact.

499 F.2d at 477. It seems clear that the court related cost of compliance of the pace at which compliance was to be achieved, not to whether it was to be achieved at all.

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A review of the Act's legislative history as well as relevant provisions of the Act demonstrates that cost-benefit analysis is not statutorily required and that economic hardship is not a justification for an individual employer's failure to comply with a mandatory standard. � Responding to claims that occupational safety and health legislation would be too expensive, Senator Yarborough, one of the bill's sponsors, stated,

One may well ask too expensive for whom? Is it too expensive for the company who for lack of proper safety equipment loses the services if its skilled employees? � Is it too expensive for the employee who loses his hand or leg or eyesight?

We are talking about people's lives, not the indifference of some cost accountants. � We are talking about assuring our American workers who work in our plants and factories that they will go home after a day's work with their bodies intact.

LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 at 510 (1971), cited in AFL-CIO v. Marshall, supra at 55. � Similarly, Senator Eagleton stated,

The costs that will be incurred by [*64] � employers in meeting the standards of health and safety to be established under this bill are in my view, reasonable and necessary costs of doing business. � Whether we, as individuals, are motivated by simple humanity or by simple economics, we can no longer permit profits to be dependent upon an unsafe or unhealthy worksite.

LEGISLATIVE HISTORY at 1150-51, cited in AFL-CIO v. Marshall, supra at 54 n. 161.

As was pointed out by the D.C. Circuit in its review of the cotton dust standard, where Congress intended cost-benefit or risk analysis to be a prerequisite to administrative regulation, it included the requirement in the legislation. � Examples are found in the Clean Air Act, 42 U.S.C. � � 1857f-6c(c)(2)(B) (1976), recodified as 42 U.S.C. � � 7545(c)(2)(B) (1977), the Federal Environmental Pesticide Control Act of 1972, 7 U.S.C. � � 136(bb) (1976), the Federal Hazarous Substances Act, 15 U.S.C. � � 1261s (1976), the Consumer Products Safety Act, 15 U.S.C. � � 2058(c)(2)(A) (1976), and the Toxic Substances Control Act, 15 U.S.C. � � 2605(a) (1976). � AFL-CIO v. Marshall, supra at 53 & nn. 157 & 158, 55.

The provision in section 6(b)(6) of the Act, 29 U.S.C. � � 655(b)(6), for [*65] � the granting of a temporary variance, sets forth specific criteria that an employer must meet in order for compliance to be delayed. � The employer must establish that he is unable to comply (1) "because of unavailability of professional or technical personnel or of materials and equipment" or (2) "because necessary construction or alteration cannot be completed by the effective date" of the standard. � 29 U.S.C. � � 655(b)(6)(A). � A permanent variance under � � 6(d) will be granted only if the employer demonstrates that he has an alternative method of protection that will provide a place of employment "as safe and healthful" as that which would prevail if the employer complied with the standard. � 29 U.S.C. � � 655(d). � Cost is not a factor to be considered. n23 Cf. Union Electric Co. v. E.P.A., supra at 257.

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n23 The legislative history clearly indicates that economic hardship is not to be a consideration for the granting of a section 6(b)(6) extension. � Conf. Rep. No. 91-1765, 91st Cong., 2d Sess. (1970), reprinted in LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 at 1188 (1971). � It should also be noted in the context of the affirmative defense of "impossibility," that an employer is not excused from complying with a standard's requirements merely because compliance is difficult or expensive. Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978).

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The inappropriate emphasis placed on economic feasibility and the erroneous assignment of the accompanying burden of proof is demonstrated by the superficial approach that has been followed by the Commission in attempting to balance the cost of compliance against the achievable benefit to employee health. n24 Cost-benefit analysis is illsuited to these proceedings, n25 particularly because of the problems associated with the quantification of benefits n26 and the speculative nature of projected compliance costs. n27 The quotient to be obtained by merely dividing total cost of installation and maintenance of engineering controls by the number of affected employees does not accurately reflect the cost to the employer, nor does it reflect the non-quantifiable benefits to the employees. � To pursue cost-benefit analysis to its logical conclusion would require a reduction of the employer's costs associated with workers' compensation recovery, n28 as well as a consideration of tax benefits flowing to the employer from capital investment tax credits, depreciation deductions, and business expense deductions. � [*67] � In addition, a monetary benefit to the employer from reduced employee absenteeism could be anticipated. n29

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n24 For a critical congressional analysis of the use of cost-benefit analysis in the context of regulatory decision making involving health and safety, see Subcommittee of Oversight and Investigations of the Committee on Interstate and Foreign Commerce, Federal Regulation and Regulatory Reform, H.R. Doc. No. 95-134, 95th Cong., 1st Sess. 508-15, 555 (1976). � The subcommittee emphasized "that when subjective valuation is unavoidable, benefit/cost analysis is neither neutral nor objective." Id. at 515.

n25 In order to adequately develop a record for cost-benefit review purposes, the parties would be required to produce extensive scientific, economic and technical data. � Neither the Secretary nor an individual employer could be expected to invest the resources necessary to generate this type of record in each case before the Commission. � As was noted by the Secretary, the records developed in Commission proceedings are not comparable to those developed in standard-setting proceedings; nor are they comparable to those developed in pre-enforcement challenges under 29 U.S.C. � � 655(f).

n26 In the preamble accompanying the issuance of the coke oven emission standard, 41 Fed. Reg. 46742 (October 22, 1976), the Secretary of Labor made the following observations regarding the use of cost-benefit analysis in the standard setting process:

There are insuperable obstacles to any attempt to estamate accurately and to reduce to dollar terms the value of any health regulation. � To begin with, since life and death are neither bought nor sold in our society, any estimate as to dollar values must necessarily be speculative. � Yet, such an estimate requires unambiguous determinations of preventable mortality and morbidity and accepted standards of dollar values of life, illness, pain, and grief to those directly and indirectly affected.

41 Fed. Reg. at 46750. See also 43 Fed. Reg. 27350, 27379 (June 23, 1978) (cotton dust standard). � The same observations were made in a study by the National Academy of Sciences. � The report stated:

The most important and pervasive limitation on benefit-cost analysis is the role of values. � Many of the factors that are likely to be most significant in a decision concerning toxic chemicals cannot be measured in common terms (such as dollars) that are agreeable to all concerned parties. � Different individuals place different values on things such as human life, aesthetics, or national security. � Thus, an analysis that assigns a quantitative value to one or more of these factors is necessarily subjective and, to some degree, arbitrary.

NATIONAL ACADEMY OF SCIENCES, Decisioin Making for Regulating Chemicals in the Environment 39 (1975). � See AFL-CIO v. Marshall, supra at 58-59 & nn. 170-72. � For a similar view as to the unquantifiable benefits associated with health and safety regulation and the use of risk-benefit analysis, see Zimmerman, Risk-Benefit Analysis, 14 TRIAL, Feb. 1978, at 43.

n27 That projected costs are frequently inaccurate and speculative is evidenced in this case by Samson's projected annual cost increase based on an unsupported 30% production loss estimate. See also, AFL-CIO v. Marshall, supra at 47, where in discussing compliance costs associated with the challenged cotton dust standard the court referred to OSHA's statement that the industry's capital cost estimates included unnecessary costs.

n28 Hearing loss is a compensable occupational disease under workers' compensation laws. � LARSON, WORKMEN'S COMPENSATION LAW � � 41.50 (1976). � In his dissenting opinion in Great Falls Tribune Co., supra, Chairman Cleary indicated that a complete loss of hearing in one ear or both ears may be compensated in amounts that far exceeded the cost derived from the majority's cost-benefit analysis in that case. � The Chairman referred to 5 U.S.C. � � 8107 under which an employee would receive 58 weeks' compensation for complete loss of hearing in one ear or 200 weeks' compensation for complete loss of hearing in both ears. At the end of this period, the employee would also receive additional compensation payments for continuing total or partial disability under 29 U.S.C. � � � 8105 and 8106. � See also U.S. ENVIRONMENTAL PROTECTION AGENCY, OCCUPATIONAL HEARING LOSS WORKERS COMPENSATION UNDER STATE AND FEDERAL PROGRAMS (1979). � The EPA study indicates that in 1977, state benefits for hearing impairment amounted to $13 million.

n29 In his dissenting opinion in Continental Can, Chairman Cleary stated that the Commission lacks the necessary expertise and resources to enter into cost-benefit analysis in every case involving an alleged violation of the occupational noise standard, that the complexities of this type of analysis extend beyond an individual employer's situation, and, citing Industrial Union Department, AFL-CIO v. Hodgson, supra at 479-81 and American Federation of Labor v. Brennan, supra at 120-23, that cost-benefit analysis would involve both "intra-industry and inter-industry considerations." Moreover, as is evident from the preceeding textual discussion, the use of cost-benefit analysis in Commission preceedings is a measurement of the wisdom of the standard -- a determination that is not ours to make as an adjudicatory agency. � The Budd Co., 74 OSAHRC 12/A2, 1 BNA OSHC 1548, 1973-74 CCH OSHD P17,387 (Nos. 199 & 215, 1974), aff'd, 513 F.2d 201 (3d Cir. 1975).

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To the extent that Continental Can Co., supra and subsequently decided cases n30 have required the Secretary to establish the economic feasibility of controls as part of his prima facie case, they should be overruled. � Economic Feasibility is relevant only to the reasonableness of the abatement period proposed by the Secretary, n31 and is an issue to be pleaded and proved by the Respondent. n32 Economic feasibility would then be properly considered in the context of the employer's real capability to achieve abatement of the hazardous condition. � As a result, economic feasibility would be brought to bear on the fundamental remedial effect of this legislation on an individual employer. � Moreover, having established the existence of a worksite hazard, the adjudication would then be properly focused on the appropriate relief to be extended to the employer in establishing a reasonable abatement period for the control of the hazard. 29 U.S.C. � � 659(c).

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n30 See, e.g., KLI, Inc., 77 OSAHRC 202/A2, 6 BNA OSHC 1097, 1977-78 CCH OSHD P22,350 (No. 13490, 1977); West Point Pepperell, Inc., 77 OSAHRC 48/B14, 5 BNA OSHC 1257, 1977-78 CCH OSHD P21,751 (No. 8255, 1977), affirmed, 588 F.2d 979 (5th Cir. 1979); Great Falls Tribune Co., supra; Castle & Cooke Foods, supra; Turner Co., supra.

n31 The Fifth Circuit has expressed its view that a cost-benefit analysis is a necessary predicate to an administrative determination that an occupational safety and health standard is "reasonably necessary or appropriate" for workplace safety within the meaning of 29 U.S.C. � � 652(8). � American Petroleum Institute v. OSHA, 581 F.2d 493 (5th Cir. 1978), Cert. granted sub nom. Industrial Union Department, AFL-CIO v. American Petroleum Institute, 47 U.S.L.W. 3554 (U.S. Feb. 21, 1979) (No. 78-911). � The American Petroleum case is distinguishable from the issue before us on two bases. � First, the court was engaged in pre-enforcement review under 29 U.S.C. � � 655(f) of the OSHA benzene standard reducing the permissible benzene exposure from 10 ppm to 1 ppm. � The court was not engaged in a review of feasibility in the context of an enforcement proceeding. � Second, the court was concerned about the Secretary's failure to establish the benefits to be expected by the reduction in benzene exposure. The court stated that it could not conclude, on the basis of the record before it, that the conditions to be imposed by the standard were reasonably necessary to provide safe and healthful workplaces. Not knowing the benefits to be achieved, the court found it impossible to assess the reasonableness of the relationship between expected costs and benefits. � The case before us does not involve this type of challenge to the rational basis of the standard. � Moreover, it is important to note that the court in American Petroleum did not attempt to reconcile the seemingly contrary decisions of other circuits in Industrial Union Department v. Hodgson, supra; Society of Plastics Industry, Inc. v. OSHA, supra; and American Iron & Steel Institute v. OSHA, supra.

The D.C. Circuit's subsequent decision in the cotton dust case, AFL-CIO v. Marshall, supra, specifically rejects the Fifth Circuit's interpretation of "reasonably necessary or appropriate" because it was based on a prior holding of the Fifth Circuit in Aqua Slide 'N' Dive v. Consumer Products Safety Commission, 569 F.2d 831 (5th Cir. 1978) interpreting the statutory term "unreasonable risk" in the Consumer Products Safety Act. � The D.C. Circuit noted that although "unreasonable risk" language in the Consumer Products Safety Act and other legislation has been construed to include a cost-benefit requirement, nothing in this statute or legislative history requires this type of analysis as a prerequisite to regulation. � Slip op. at 56-58 & nn. 166-67 & 169.

n32 In Turner Co., Div. of Olin Corp. v. Secretary of Labor & OSHRC, 561 F.2d 82 (7th Cir. 1977), the Seventh Circuit expressed the view that the weighing of cost-benefit considerations is essential to a rational interpretation of the occupational noise standard, citing with approval the Commission decision in Continental Can Co., supra. The court held that the Commission erred in Turner by requiring costly engineering controls to reduce noise exposure, tather than less expensive personal protective equipment, without first employing a cost-benefit analysis, even though it had been shown that engineering controls were technologically feasible and affordable by the employer. � Similarly, in RMI Company v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979), the Sixth Circuit cited with approval the Commission holding in Continental Can and the Seventh Circuit holding in Turner Co. regarding the use of cost-benefit analysis. � In Diversified Industries Division, Independent Stave Co. v. OSAHRC & Marshall, No. 74-1291 (8th Cir. March 26, 1980), the Eighth Circuit followed RMI and Turner without comment.

The Commission adheres to the principle that an administrative agency charged with the duty of formulating uniform and orderly national law in its adjudicatory decisions is not bound to acquiesce in the views of U.S. courts of appeals that conflict with those of the agency. � S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, & nn. 15 & 16, 7 BNA OSHC 1260, 1264-65 & nn. 15 & 16, 1979 CCH OSHD P23,480 at pp. 28,437-38 & nn. 15 & 16 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979). � Having carefully considered the holdings of the Sixth and Seventh Circuits and their supporting rationale in light of the Commission's responsibility to establish national safety and health law, I respectfully decline to follow the Turner and RMI interpretations of the noise standard in the context of enforcement proceedings before the Commission. � S & H Riggers and Erectors, Inc., supra.

The Turner court distinguished between the health risks associated with excessive noise exposure and other hazards that pose "serious debilitating threats". � 561 F.2d at 86. It is unclear whether this evaluation of the physiological and psychological harm caused by noise was based on the court's deference to the Commission's decision in Continental Can, supra, or the court's independent judgment of the health risks involved in occupational noise exposure. To the extent that the Turner court relied on the Commission decision in Continental Can, supra to reach this conclusion, it should be noted that the Commission decision was in error in its assessment of the health risks associated with excessive noise exposure. The Commission does not sit to review the scientific sufficiency of the standards issued by the Secretary. � See The Budd Co., supra note 38. � That review is statutorily assigned to the courts of appeals in preenforcement review of the standard under section 6(f) of the Act, 29 U.S.C. � � 655(f). � To the extent that the Turner court exercised its independent judgment on the health hazard, that judgment is not supported by the best available scientific evidence. � See notes 10 and 11 supra. In AFL-CIO v. Marshall, supra at 58 n. 169, the D.C. Circuit distinguished Turner on the basis that "[j]ust such a serious risk is posed by cotton dust exposure." The D.C. Circuit did not examine the underlying support for the Seventh Circuit's evaluation of the health risks involved in excessive noise exposure or the appropriateness of the standard of review employed by the Turner court in reaching its conclusion. � Compare Industrial Union Dept., AFL-CIO v. Hodgson, supra with G.A.F. Corp. v. OSHRC 561. F.2d 913 (D.C. Cir. 1977). � Accordingly, the distinction in Turner rises or falls on its own merits and the D.C. Circuit's citation of Turner adds nothing to its correctness as a matter of law.

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II

In the case before us Samson has set forth the significant financial impact it anticipates from the implementation of engineering controls. � However, Samson did not attempt to establish a relationship between the asserted economic hardship and its abatement responsibilities. � Nevertheless, Judge Fier took this economic data into consideration in establishing a 3 1/2 year period for final abatement, rather than the 2 years originally proposed by the Secretary. n33

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n33 On review the Secretary argues in support of the abatement requirement established by the Judge, stating that "in extending the abatement date to give respondent three and one-half years to implement the controls, the judge has recognized the technology forcing aspect of the standard and given due consideration to any financial pressure respondent might encounter from a shorter abatement requirement."

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However, in order to avoid any possible prejudice, it has been the [*70] � policy of the Commission to afford parties the opportunity to present additional relevant evidence when there has been an intervening change of law. � See, e.g., KLI, Inc., 77 OSAHRC 202/A2, 6 BNA OSHC 1097, 1977-78 CCH OSHD P22,350 (No. 13490, 1977), appeal dismissed, No. 79-3127 (6th Cir. July 3, 1979); Donovan Electric Co., 77 OSAHRC 198/C13, 6 BNA OSHC 1074, 1977-78 CCH OSHD P22,339 (No. 13822, 1977); Georgia Quality Masonry, Inc., 77 OSAHRC 191/F1, 5 BNA OSHC 2052, 1977-78 CCH OSHD P22,297 (No. 14587, 1977). � Accordingly, I would afford Samson the opportunity to present additional evidence and would remand the case for further proceedings consistent with this opinion.

III

The remand I would order in this case coincides with Commissioner Barnako's conclusion that this case should be remanded for further proceedings. � However, the coincidence ends there because he would remand for further proceedings consistent with Continental Can, supra. Thus, the final issue in this case concerns the appropriate order to be entered when there is no concurrence in the interpretive rule to be applied. � An analysis of this issue necessarily begins with the substantive [*71] � impact of this decision on past Commission precedent. � Certainly, the Commission, like any appellate body, may overrule its precedent. � See Atchison, Topeka & Santa Fe Railway Company v. Wichita Board of Trade, 412 U.S. 800 (1973); Boys Market, Inc., supra; Public Interest Research Group v. F.C.C., 522 F.2d 1060, 1066 (1st Cir. 1975). In exercising its appellate responsibilities, the Commission has overruled earlier precedent on several occasions consistent with its national interpretive responsibility. E.g., S & H Riggers & Erectors, Inc., supra note 41; Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976). n34 However, the bare authority to overrule precedent is not license to do so.

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n34 Certainly, continuing change and development in the law is expected since "[i]n administrative law we are dealing pre-eminently with law in the making; with fluid tendencies and tentative traditions." Frankfurter, The Task of Administrative Law, 75 U.PA.L.REV. 614, 619 (1927), cited in 1B MOORE'S FEDERAL PRACTICE P0.403, at 351 (2d. ed. 1974).

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Insofar as Continental Can assigns the burden of persuasion on economic feasibility to the Secretary and deems it a prerequisite to the affirmance of a violation of the noise standard, that decision is erroneous and I would overrule it. � In contrast, Commissioner Barnako would reaffirm Continental Can on the issue of economic feasibility. In Chairman Cleary's opinion he states that "to the extent the Commission's decision in Continental Can stands for the use of a formal cost-benefit analysis in cases involving the noise standard . . . � Continental Can should be overruled." However, in distinct contrast to his dissent in Continental Can, Chairman Cleary would now join the majority in that earlier case in imposing on the Secretary of Labor the burden of proof with respect to economic feasibility. He now differs with the previous majority only to the extent that it imposes a quantitative cost-benefit analysis on the Secretary.

Though it is for each Member to reconcile his past and present opinions, it is the Commission's responsibility as an appellate body to continue to apply its [*73] � precedent except where overruled or distinguished. � Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, supra; Secretary of Argiculture v. United States, 347 U.S. 645 (1954); Local 777, Democratic Union Organizing Committee, Seafarers Int'l Union of North America, AFL-CIO v. NLRB, 603 F.2d 862, 894 (D.C. Cir. 1978). A majority of the Commission has clearly reaffirmed Continental Can to the extent that it assigns the burden of persuasion with respect to economic feasibility to the Secretary. � However, the essential standard of proof for that burden, i.e. the cost-benefit analysis of Continental Can, has been rejected by another majority of this Commission. � As a consequence, a Commission majority has failed to reach an interpretation of the occupational noise standard -- an interpretation that is essential to continued enforcement of the standard. � Thus, if the Commission by this decision were to overrule the existing interpretation set forth in Continental Can, yet not substitute an alternative, a chasm would be created into which all litigation involving this serious health hazard would fall. n35 The Secretary would have a burden to meet [*74] � without any definable standard of proof. � Neither the parties nor the administrative law judges would be guided on the rule of decision to be applied to the evidence introduced at trial. � Moreover, the absence of a majority interpretation of the occupational noise standard would leave uncertain an employer's responsitility under the Act. � As a result, employees would be left without a definable standard of protection, voluntary compliance would be discouraged, and protracted litigation would undoubtedly follow.

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n35 This is unlike the situation where a judicially imposed requirement, such as an element of a prima facie case, is abandoned but a substitute is not necessary for adjudication to proceed to final resolution. E. G. S & H Riggers & Erectors, Inc., supra note 32 (Secretary no longer required to establish the feasibility and likely utility of use of personal protective equipment as part of prima facie burden in litigating alleged violations).

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The substantive issues presented by this case are unquestionably [*75] � important to the effective enforcement of the occupational noise standard. � Both the statute and the standard compel the interpretation I have expressed in this opinion. � However, the Commission has a fundamental responsibility to the public as well as the litigants in a particular controversy to establish a uniform and orderly fabric of national law in adjudications involving occupational safety and health. � See S & H Riggers & Erectors, Inc., supra note 41, 7 BNA OSHC at 1264, 1979 CCH OSHD P23,480 at p. 28,437. Therefore, it is imperative that the Commission continue to apply precedent until a Commission majority displaces it with another rule of decision. � See Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, supra; Local 777, Democratic Union Organizing Committee, Seafarers Int'l Union of North America, AFL-CIO v. NLRB, supra. The essential nature of appellate adjudication mandates this result. � See generally K. Llewellyn, The Common Law Tradition: Deciding Appeals 19-53, 75-91 (1960). � I am constrained to conclude that the effect of the decision in this case is to leave undisturbed Continental Can as the rule of decision [*76] � with respect to the occupational noise standard. � Therefore, there is a concurrence in the appropriate relief to be extended the parties and the law to be applied. n36

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n36 This dispositional concurrence is unlike the situation where, in the absence of controlling precedent, Commission members agreed to resolve an impasse by voting to affirm the judge's order. � Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, 1977), aff'd, 591 F.2d 991 (9th Cir. 1977). Here our responsibilities are clear. � Individual views that seek to modify institutional decisions, as long as they do not enjoy majority support, are "of no consequence in the administrative process." Public Service Commission of the State of New York v. Federal Power Commission, 543 F.2d 757, 777-78 (D.C. Cir. 1974).

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