UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 11869
WEYERHAEUSER COMPANY,
Respondent.

September 24, 1976

DECISION

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

A decision of Review Commission Judge Robert N. Burchmore, dated September 11, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision vacated a citation which alleged that respondent violated 29 U.S.C. § 654(a)(2) by failing to comply with the occupational safety and health standards codified at 29 C.F.R. § 1910.95.

Review was directed on whether the Judge erred in concluding that 29 C.F.R. § 1910.95 was invalid. A divided Commission has recently held in Secretary v. Turner Company, Division of Olin Corp., OSAHRC Docket No. 3635, August 24, 1976, and Secretary v. Continental Can Company, OSAHRC Docket No. 3973, August 24, 1976, that the standard is valid. Accordingly, the Judge’s decision is reversed and the case is remanded for a decision on the merits. That decision should include a finding as to whether the evidence establishes that the implementation of administrative and engineering controls is feasible within the guidelines set out in the Turner and Continental Can decisions. Since it is necessary to remand this case, the parties may present additional evidence and argument on the feasibility question if they desire.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

CLEARY, Commissioner, CONCURRING:

I join with Commissioner Moran in his order of remand. I do not, however, share his view that our decisions in Turner and Continental Can are dispositive of all issues presented here. Neither of those cases dealt with one of Judge Burchmore’s two grounds for declaring the standard invalid. The Judge held that 29 CFR § 1910.95(b)(1) is invalid because its adoption contravened section 5(b) of the Act, and because its requirement of engineering controls which do not reduce sound levels to G–16 levels is arbitrary and capricious. Only Turner spoke to the validity of the standard, and though it addressed the latter argument, it did not settle the first one. Weyerhaeuser also presents an argument not considered in Turner. I therefore shall address these arguments here.

As the Third Circuit noted, in Atlantic & Gulf Stevedores v. O.S.H.R.C., 534 F.2d 541, 553–554 (3d Cir. 1976), section 5(b) of the Act is not intended to diminish the employer’s responsibility to assure compliance by his employees, let alone restrict by implication the Secretary’s explicit rulemaking powers. Thus, it is clearly wrong to state that section 5(b) ‘clearly preclude[s] a regulation which, as in this case, seeks to impose all responsibility for employee protection upon the employer.’

As to the constitutional point, I note only that as we stated in Turner the heavy burden of demonstrating the invalidity of the standard must be borne by those who would attack it, and that as I pointed out in Part III.C.1. in Turner, it is enough for us to hold that the Secretary could have rationally found that engineering controls are a superior form of hearing protection. Whether Judge Burchmore correctly found that ear protectors protect employees ‘fully’ or that the Secretary’s contrary determination was right or wrong is simply not the point. Our private views of this controversy are not at issue. For even if we were thoroughly convinced that hearing protectors are superior to engineering controls, we could not declare the standard unconstitutional. The only conclusion which we are permitted to base our judgment upon is whether the Secretary, in the exercise of his rulemaking powers, could have rationally found that engineering controls are preferable to personal protective equipment. See e.g., Kelly v. Johnson, 96 S.Ct. 1440, 1446 (1976) and cases cited.

Finally, Weyerhaeuser’s reliance on the provisions of section 3 (8) of the Act is misplaced. Hana Shoe Corporation, No. 5656 (August 24, 1976) (slip op. at 5); American Airlines, No. 6706 (August 24, 1976) (slip op. at 3 and cases cited).

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 11869
WEYERHAEUSER COMPANY,
Respondent.

September 11, 1975

Altero D’Agostini and Donald F. Rector for the Secretary of Labor.

Douglas B.M. Ehlke for the respondent.

DECISION AND ORDER

BURCHMORE, Judge:

By citation issued December 17, 1974, the complainant charges that respondent committed a violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq (the Act), in that respondent failed to utilize feasible engineering and administrative controls to reduce noise levels in its Honolulu plant, contrary to the Occupational Safety and Health Standard contained in 29 C.F.R. 1910.95(b). No penalty was proposed. Timely notice of contest was filed and the proceeding was assigned to the undersigned administrative law judge for adjudication. A prehearing conference was held at San Francisco, Calif. on April 9, 1975, and the hearing was held at Seattle, Wash., on April 15–16, 1975. The parties have submitted briefs and replies; the case was finally submitted on July 28, 1975.

THE FACTS

At the prehearing conference the parties stipulated to numerous fundamental facts of the case. In addition, the record of the hearing comprises 314 pages of transcript and 34 numbered exhibits. The following findings are largely undisputed. Where there is a conflict in the evidence, the testimony introduced by both parties is summarized.

1. The Respondent, Weyerhaeuser Company, is a Washington corporation, and at all times relevant to this proceeding maintained its principal place of business at Tacoma, Washington, and a workplace at 900 N. Nimitz Highway, Honolulu, Hawaii.

2. Respondent, at all times relevant to this proceeding, had employees and was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act, in that, at its Honolulu workplace Respondent uses paper shipped to Hawaii from places outside thereof, and ships corrugated boxes from Hawaii to places outside thereof.

3. On November 12, 13, 14, and 15, 1974, an inspection and noise survey was conducted at Respondent’s Honolulu workplace by Occupational Safety and Health Administration Compliance Officer and industrial hygienist Robert Yamamoto. As a result of that inspection, Respondent was issued a citation on December 17, 1974, alleging violation of that Occupational Safety and Health Standard found at 29 CFR 1910.95(b)(1). The citation was amended by the Complaint to charge a violation of the entire noise standard, 29 CFR § 1910.95.

4. The Secretary’s Notification of Proposed Penalty was mailed to Respondent on December 17, 1974, proposing the assessment of no penalty for the violation alleged in the citation. Respondent’s Notice of Contest was received by the Secretary on January 14, 1974 and was duly transmitted to the Occupational Safety and Health Review Commission.

5. Respondent manufactures corrugated cardboard boxes at its Honolulu workplace. The corrugation process is accomplished in an area approximately 32 feet wide and 74 feet long. The corrugating machine is manufactured by the Langston Company, and consists of a single facer component, a double backer component and a heater drum. Three rolls of paper are fed into the machines during the corrugation process. At the single facer component, one sheet of paper is corrugated and a second sheet is adhered to one face of the corrugated piece. At the double backer component, a third sheet is adhered to the other side of the corrugated piece, forming the corrugated board, which is then dried, cut, and formed into cardboard boxes.

6. The double backer component is located approximately 30 feet downstream from the single facer component.

7. Three employees per shift are normally employed to operate the corrugating line, the single facer operator, the double backer operator, and the crane operator.

8. During each of the four days of the aforesaid OSHA inspection, the single facer operator was exposed to noise levels over an eight-hour period of from 95 to 110 dBA.

9. The primary source of the noise on the corrugation line is the single facer component.

10. During the aforesaid OSHA inspection, all employees observed by the compliance officer, including the single facer operator, were wearing ear protection. The wearing of ear protective devices at Weyerhaeuser’s Honolulu plant site is a mandatory employment requirement.

11. The ear protective device (ear plugs) being worn by the single facer operator during the inspection reduced his exposure to within the permissible noise exposures of Table G–16 of 29 CFR § 1910.95.

12. At its Honolulu plant, Respondent administered a continuing, effective hearing conservation program, including an audiometric testing program for all employees.

13. In order to investigate the effectiveness and feasibility of every form of noise control for the single facer, apart from its effective mandatory ear protector program, Weyerhaeuser has conducted an extensive companywide investigation of engineering and administrative controls. The following list of controls and related costs have been or are being tested in various plants of Respondent’s Shipping Container Division:

A. Building an acoustically designed brand new corrugated box plant in Tampa, Florida with the best available engineering and operating controls. Such controls included:

(1) new single facer machine

(2) hundreds of baffles hung over and around the single facer area of the corrugator machine

(3) creation of a quiet area or noise refuge for the operator through use of a barrier wall

(4) acoustically constructed concrete block walls with absorbing materials.

RESULT:	No significant noise levels reduction in the single facer work area s or in the operator’s workshift exposure; no reduction to the limits of Table G–16.
COST:	$60,000.

B. Hanging vinyl curtains near the single facer in at least three different plants.

RESULT:	Generally a one or two decibel reduction
COST:	$6,000 to $8,000 each

C. Constructing an acoustical (hollow) plenum wall barrier to sound in several plants.

RESULT:	Generally a one or two decibel reduction
COST:	$8,000 per wall

D. Ordering an experimental tight-fitting single facer machine enclosure for the sole purpose of noise reduction, yet to be tested.

COST: $29,500 per enclosure.

E. Experimental redesigning of the single facer machine components and loading requirements for potential noise control and production modifications.

RESULTS: Unsuccessful in achieving noise levels within Table G–16

COST of Experimental Single Facer: $200,000.

F. Participating as a founding member in the corrugated industry study (through the Fibre Box Association) to investigate feasible engineering controls, with special emphasis on the single facer. Industry experts have analyzed various controls including booths and retained an independent acoustical expert, Bill Halvorsen of Structural Dynamics Research Corporation to analyze and recommend directions for further research on engineering controls. Progress reports from the industry study are sent to all of Weyerhaeuser’s plants such as Honolulu. The Fibre Box Association represents 83% of the industry production and includes over half of the industry’s 1300 corrugator machine operations.

G. Working with Langston Company’s own noise consultants at a different Weyerhaeuser plant location to control noise generated by the single facer, which efforts included complete foundation isolating of the single facer of a new Langston corrugator which cost $1,300,000 (two single facer portions cost $158,000 each).

RESULT: No reduction to Table G–16 limits.

COST of “environmental preparation” of the single facer for noise control: $100,000.

H. Conducting a program of noise level surveys since 1967 throughout the Company’s box plants to identify noisy machinery and plantsite locations. Following such surveys the Company has designed and posted innovative signs in all noisy plant areas to alert and remind employees to keep wearing their ear protectors. The compliance officer’s photograph shows these posted signs in evidence at Respondent’s Honolulu plant single facer area.

I. Conducting continual daily machine maintenance and lubrication programs, as at Honolulu.

J. In sum, Weyerhaeuser has spent nearly $418,800 to date in its ongoing program of investigating feasible engineering and administrative controls principally for the single facer plantside areas—all without significant success in reducing the operator’s ambient air noise exposure levels to within the limits of Table G–16.

14. Respondent has not done so, but it is technically possible to reduce by an unknown amount the noise exposure of the single facer operator at the Honolulu worksite by the following engineering controls: 1) a partial personnel enclosure for the single facer operator with the single facer control panel located within the enclosure and 2) lead vinyl curtains located to the left and right of the single facer component.

15. The evidence does not show that the use of the engineering controls described in finding 14 would reduce the noise exposure of the single facer operator to levels permissible under Table G–16.

16. The noise level in the corrugation area 10 feet away from the single facer, when the single facer is operating, is approximately 6 dBA lower than the corresponding noise level at the single facer control panel.

17. The respondent has not used administrative controls and the evidence does not show whether it is feasible to reduce the noise exposure of the single facer operator by training the double backer operator to perform all of the duties of the single facer operator and requiring the interchange of duties of the two employees during each 8 hour shift.

State of facts presented as Rational Basis for Rejection of Personnel Protective Devices

The regulatory standard, as interpreted by the Secretary, rejects the use of personal protective equipment such as ear plugs or muffs as a permanent alternative to administrative or engineering controls. The Secretary offers the following opinion of a physiologist as showing a rational basis for adopting that position as a safety and health measure, Tr. 166–7:

“My opinion, as succinctly as possible, is this—that various ear protective devices such as earplugs and ear muffs, show an ability to protect the ear from intrusion of sound up to a given degree—a number such as 20 decibels, which is a rather large attenuation, is often quoted as “a typical amount of protection.” The amount of protection is the function somewhat of the frequency of the sound, but leaving that aside, the main problem with ear protective devices, as the means of always getting protection, is the question of reliability and practicality in the real life situation, as distinct from laboratory tests; and there is evidence which shows that the fitting and wearing of ear protective devices is very—must be carefully done and carefully followed both by the person using the devices and the person fitting him; and that the day-by-day usage of these devices does not afford the protection that one hopes will be afforded because of these—the day-by-day vagaries, the problems of maintaining a seal, and other practical considerations which will be shown in the figures.

The other factor is that while even with the laboratory tests, where the conditions are ideal for both the measurement and the fitting of the device, we find that there are a certain percentage of the people that are not afforded the amount of hearing protection that the average person may be afforded in the laboratory.

Well, these two factors are the basis—are my opinion as to limitations in the utilization of ear protective devices as a certain means of protecting the hearing of people exposed to intense noise on a day-by-day basis.”

Opposed to this is the testimony of Dr. Victor Hildyard, M.D., a Denver Otologist who testified for respondent as follows:

“The most frequent types of nerve-damage hearing loss are unpreventable and occur as a natural result of the human aging process (e.g. presbycusis) and everyday community living (e.g., sociocusis) (Tr. 221–222). By sharp contrast, noise-induced nerve hearing loss can be prevented by attenuating the sound pressure level to the inner ear (Tr. 222). Sound can be effectively attenuated by obstruction of the ear canal either by means of fitting some object into the ear (plug) or by fitting something over the ear (muff) (Tr. 223–224). Dr. Hildyard’s uncontradicted results from personal testing of earplugs and muffs show the following attenuation effects for protecting employees’ ears: (1) earplugs—average attenuation from 20 to 25 decibels; (2) ear muffs—up to 35 decibels (Tr. 224, 226). At every level of noise exposure relevant to this case, including at 90 dba (at which level no ear protection is required by the OSHA standard), because of known population sensitivities to noise, more employees will be better protected from losing their hearing simply by wearing good fitting ear protectors than by engineering or administrative control of the noise levels to 90 dba without ear protectors (Tr. 226–227, 234–235). In Dr. Hildyard’s opinion, this superiority of ear protectors remains even if the noise exposure is reduced through engineering or administrative means to 80 dba (Tr. 234). In one company of 5,000 employees Dr. Hildyard has studied through the Hearing and Speech Center over a period of five years, where the company has a mandatory ear protector program, fewer than two percent have shown any degree of noise-induced hearing loss. In other words, 98% of the 5,000 workers have been successfully protected from the effects of noise through the supervised use of ear protectors (Tr. 229). It is understandably concluded that the two percent of employees with some noise hearing loss simply haven’t been wearing their ear protection properly or that they are individuals with unique sensitivities at such low levels of noise that no amount of available protection (including engineering controls to 90 dba) could prevent their degree of loss (Tr. 230). Because of a phenomenon called paracusis, an employee can hear better in noisy environments with ear protection devices than he can without such protection (Tr. 234). Every employee can be fitted with adequate personal ear protection either of the plug or muff type (Tr. 227–228; Resp.Exs. R–3, R–4, and R–5). Fitting is a simple process (Tr. 232–233). Ear protectors can be easily worn with eyeglasses (Tr. 233). It is easy for an employee to know whether his earplug is properly seated and to adjust it himself if it’s not (Tr. 233). There is no medical evidence that indicates ear protectors are unhealthy for any reason (Tr. 321).”

Considering all the testimony I find that a fair evaluation of it compels the following finding of fact:

18. Ear plugs or ear muffs are effective to prevent noise induced hearing loss unless the employee fails or refuses to wear them.

THE ISSUES

As interpreted by the Secretary, the cited regulation prohibits the permanent use of personal protective equipment as an alternative to engineering controls, no matter how effective such protective equipment may be to prevent noise induced hearing loss and no matter how well administered is the program requiring its use. Further, according to the Secretary, the regulation requires the use of such feasible engineering controls as already exist even though they may fail to reduce the noise to G–16 levels and even though ear protection must still be worn. Respondent contends that the standard, as so interpreted, is invalid, and that there are no feasible engineering controls.

The questions presented are: (1) Whether this Commission has the power to adjudicate the validity of the standard adopted by the Secretary; (2) If the Commission has that power, is the noise standard invalid (a) because it excludes the use of personal protective equipment as a permanent alternative to engineering controls or (b) because it requires the use of controls even though they do not achieve G–16 noise levels; and (3) do feasible controls exist.

VALIDITY OF THE STANDARD

The power of the Commission. No court has yet decided the question whether this Commission has the power to pass upon the validity of a regulation promulgated by the Secretary. The Commission itself has in fact exercised such power to invalidate a standard on the grounds that it was unenforceably vague; in that case one Commissioner dissented, urging that the Commission lacked such power. Secretary v. Santa Fe Transportation Company, No. 331 (December 20, 1973). It must therefore be concluded that the majority of the Commission is of the opinion that the Commission has the requisite power and authority.

Examination of the Act, and reflection upon the statutory scheme of regulation, supports the view that the Commission has the power and duty to pass upon the validity of the standards which are cited in proceedings brought before the Commission. For the Act sets forth a clear separation of power between the Secretary, who was given the power to establish standards and prosecute enforcement actions, and the Commission which was authorized to carry out the adjudicatory functions of the Act. Section 2(b)(3). The power to adjudicate contested enforcement proceedings, which is accorded to the Commission under section 10(c), necessarily involves the power and duty to determine the validity of the cited standard, for an invalid standard would be a nullity which could not form a lawful basis for affirming a citation.

The scheme of regulation adopted in this Act is fundamentally different on this point from the familiar scheme of other statutes underlying such agencies as the Federal Trade Commission, or the Interstate Commerce Commission. For in such cases the agency possesses both rule making and quasi-judicial powers, and it would be a manifest absurdity for the agency to pass upon the validity of its own regulations. This Commission, on the other hand, is similar to the Tax Court in that it performs only an adjudicatory function in the exercise of which it is inherently sound to consider the lawfulness of the standard promulgated by another, wholly independent agency. This is not to say, of course, that the Commission’s determination is final and unreviewable, for section 11 of the Act clearly provides for judicial review of the Commission’s decision. However, there is just as much reason for the Commission to make a reviewable determination of the validity of a standard as there is for the Commission to arrive at a reviewable decision on any other necessary element of an enforcement proceeding.

The Act itself supports the view that this Commission is expected to make reviewable determinations of the validity of regulations, for it provides in section 11(a) that no objection that has not been urged before the Commission shall be considered by the court. Accordingly, if the regulation were not challenged before the Commission, it could not be challenged in court.

The view that the Commission can pass upon the validity of regulations is not contrary to the principle, urged by the Secretary, that an administrative agency lacks the power to pass upon the constitutionality of the very legislation that created it. It is the validity of a standard promulgated under the Act, and not the Act itself, which is brought in issue herein. Moreover, it is unquestionably true, as the Secretary further argues, that this Commission has only the power conferred upon it by statute, that the authority of the Secretary to promulgate standards is exclusive and that the Commission has no rule-making power. In passing upon the validity of the Secretary’s standards, this Commission clearly has no authority to consider the wisdom or fairness of the standard, or whether it comports well or ill with the purposes of the Act; the Commission cannot lawfully “second guess” the Secretary. It’s only proper function, so far as the standard is concerned, is to determine whether it is within the power of the Secretary to promulgate according to the provisions of the Act and of the Constitution. In performing that function, the Commission does not exercise a rule-making power; rather it exercises a purely adjudicatory power.

The Secretary points out that the Act provides in section 6(f) a specific method for obtaining review of a challenged standard. It is there provided that any person adversely affected by a standard may, within sixty days after the standard is promulgated, petition a court of appeals for judicial review. It is the view of the Secretary that this method of pre-enforcement review is exclusive. That view, however, is contrary to the legislative history on the matter, for the Senate Report on the bill explicitly recited, emphasis supplied:

Section 6(f) ... provides that any person who may be adversely affected by a standard may, within 60 days of its issuance seek judicial review in the appropriate United States Court of Appeals. While this would be the exclusive method for obtaining pre-enforcement judicial review of a standard, the provision does not foreclose an employer from challenging the validity of a standard during an enforcement proceeding.

Finally, as to legislative history, the Secretary points to a bill that was debated and rejected (H.R.16785) and which was supposed to have expressly provided for the Commission to review the validity of standards, citing a Commission judge’s decision in Secretary v. Boise Cascade Co., No. 2944 (March 14, 1974). Examination of that decision reveals that H.R.16785 actually provided for such review by the Secretary and not by the Commission, so the case does not stand for the proposition that Congress rejected the idea of having the Commission pass upon the validity of the Secretary’s standards.

I conclude that, as a matter of law, this Commission has the power and the duty to determine the validity under the Act and under the Constitution of any standard cited by the Secretary if it be properly challenged in an enforcement proceeding.

The test of validity. It is well settled under the constitution that due process demands that a law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. Nebbia v. New York, 291 U.S. 502, 525 (1934). At the same time, as the Secretary contends it is incumbent upon the opponents of a law to demonstrate that it is clearly unreasonable, Arizona Copper Co. v. Hammer, 250 U.S. 400, 426 (1918). Where the legislative judgment is called in question the inquiry is whether any state of facts either known or which could reasonably be assumed affords support for it; the courts will not pass judgment on the wisdom of the law. Railway Express Agency v. New York, 336 U.S. 106, 109 (1954).

A regulation adopted and enforced by an agency pursuant to an act of Congress must not only satisfy substantive due process, it must also conform to the requirements of the statutory grant of authority. H. & H. Tire Co. v. Department of Transportation 471 F.2d 350 (7th Cir.1972). National Tire Dealers and Retreaders Assoc., Inc. v. Brinegar, 491 F.2d 31 (D.C.Cir.1974). Further, a regulation is not rationally related to the regulatory purpose just because an agency says so. Some factual basis must appear. Pan American Petroleum Corp. v. F.P.C., 352 F.2d 241 (10th Cir.1965). The courts require a showing by the agency that there is a rational basis for its regulation. Coakley v. Postmaster of Boston, Mass., 374 F.2d 209, 210 (1st Cir.1967).

Applying the foregoing principles to this case, I conclude that the regulation is invalid as interpreted by the Secretary. There is no rational basis in safety or health for rejecting the use of personal protective equipment. The fact is that such equipment is fully effective to protect employees against noise induced hearing loss unless the employee fails or refuses to wear them. But the willingness of employees to wear ear plugs or ear muffs is not grounded in safety and health; it is a matter of personal preference and cooperation.

To reject the use of ear plugs or muffs solely because some employees refuse to wear them exceeds the power of the Secretary under the Act. Section 2(b)(2) states that “employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions.” And it is provided in section 5(b) that “Each employee shall comply with occupational safety and health standards and all rules, regulations and orders issued pursuant to this Act which are applicable to his own actions and conduct.” Those provisions clearly preclude a regulation which, as in this case, seeks to impose all responsibility for employee protection upon the employer.

The regulation is also invalid because it is fundamentally arbitrary and capricious to require the adoption of engineering controls which do not produce sound levels prescribed by the standard. In such a case, the employee must still wear ear plugs or muffs, and the wearing of them protects him fully; the engineering controls are therefore futile and of no effect upon safety or health.

It is ORDERED that the citation be and the same is hereby vacated and that this proceeding be and the same is hereby terminated.

Robert N. Burchmore

Judge OSAHRC

September 11, 1975