Turner Co., Div. of Olin Corp. v. Secretary of Labor

• Decision Date: 31 August 1977
• Docket Number: No. 76-2025,76-2025
• Parties: , 5 O.S.H. Cas.(BNA) 1790, 1977-1978 O.S.H.D. ( 22,105 TURNER COMPANY, DIVISION OF OLIN CORPORATION, Petitioner-Appellant, v. SECRETARY OF LABOR and OSHRC, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 82

561 F.2d 82

43 A.L.R.Fed. 152, 5 O.S.H. Cas.(BNA) 1790,

1977-1978 O.S.H.D. ( 22,105

TURNER COMPANY, DIVISION OF OLIN CORPORATION, Petitioner-Appellant, v. SECRETARY OF LABOR and OSHRC, Respondents-Appellees.

No. 76-2025.

United States Court of Appeals, Seventh Circuit.

Argued June 9, 1977.

Decided Aug. 31, 1977.

William V. Hollander, New Haven, Conn., William B. Dickinson, Stamford, Conn., for petitioner-appellant.

Michael H. Levin, Joan M. Hollenbach, U. S. Dept. of Labor, Washington, D.C., for respondents-appellees.

Before CUMMINGS, and PELL, Circuit Judges, and MARSHALL, District Judge. ^*

CUMMINGS, Circuit Judge.

Petitioner Turner presently appeals from the final decision of the Occupational Safety and Health Review Commission entered on August 24, 1976, in OSHRC Docket No. 3635. Therein the Commission, inter alia, affirmed a $75 penalty imposed by the Secretary of Labor on account of Turner's alleged failure to comply with federal occupational safety and health noise standards, as required by the Occupational Safety and Health Act of 1970 (29 U.S.C. § 654). More importantly, the Commission's decision would require Turner to adopt an engineering noise abatement program at an estimated cost of up to $30,000 to bring Turner into compliance. Our jurisdiction is conferred by virtue of 29 U.S.C. § 660(a).

The controversy at hand presents an issue of first impression for this Circuit ¹ and requires us to interpret the relevant language of the occupational noise exposure standard ² promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act (29 U.S.C. § 655).

What is of particular concern here is whether the Commission should construe the word "feasible" in the standard, as suggested by Turner, to include a consideration of both technical and economic feasibility, in order to weigh rationally the costs of implementation and maintenance of any proposed noise abatement program with the benefits to be received, or as suggested by the Secretary of Labor, to limit its consideration to the financial ability of an employer to pay for technological controls irrespective of compelling alternatives.

Upon consideration of the record, the briefs of the parties, including an amicus curiae brief on behalf of Continental Can Company, and for the reasons more fully set forth below, we hold that the word "feasible" as contained in 29 CFR § 1910.95(b)(1) (note 2 supra ) must be given its ordinary and common sense meaning of "practicable." This construction is in accord with the clear intent of Congress and the purpose of the Occupational Safety and Health Act. Accordingly, the Commission erred when it failed to consider the relative cost of implementing engineering controls in Turner's Waterbury room in its Sycamore, Illinois, plant versus the effectiveness of an existing personal protective equipment program utilizing individually fitted earplugs. We, therefore, set aside the decision of the Commission and remand the case for further proceedings not inconsistent with this order.

In accord with this Court's long-standing policy of requiring strict necessity before disposing of constitutional issues, we decline under the circumstances to address Turner's due process challenge to 29 CFR § 1910.95(b)(1) (note 2 supra ). This is particularly warranted where, as here, the Commission on remand must consider those factors which in our view obviate any due process challenge. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-348, 56 S.Ct. 466, 80 L.Ed. 688 (concurring opinion of Justice Brandeis).

I

The relevant facts are not in dispute and may be summarized as follows:

On May 18, 1973, during a routine inspection of Turner's manufacturing plant in Sycamore, Illinois, an Occupational Safety and Health Administration compliance officer determined that the ambient noise level of the so-called "Waterbury" room exceeded the permissible standard for occupational noise exposure as established by the Secretary of Labor. See 29 CFR § 1910.95(b)(1) (note 2 supra ).

The Waterbury room is located in the southwestern quadrant of the plant and houses three power presses: a Bliss power press; a Niagara Automatic power press; and a Waterbury-Farrell Automatic transfer power press. The presses are used in the manufacture of small steel gas cylinders. The Bliss press forms foot rings which are attached to the bottom of finished cylinders. The dies of the Niagara press make about 27 up-and-down strokes per minute, and each stroke forms three "cups", so that about 81 "cups" are produced from sheet steel every minute. In turn, the Waterbury press fabricates the "cups" into the tops and bottoms of propane cylinders at a rate of 33 to 38 cans per minute.

Nine employees, out of approximately 350 employed by Turner, work in the Waterbury room in three eight-hour shifts. The ambient noise levels during this period have been stipulated to by the parties as follows:

(a) Bliss Press Area:

480 minutes at 100 dBA.

(b) Waterbury Press Area:

12 minutes at an average of 90 dBA, 61 minutes at an average of 92 dBA, and 407 minutes at an average of 96 dBA.

(c) Niagara Press Area:

12 minutes at less than 90 dBA, 61 minutes at an average of 90 dBA, and 407 minutes at an average of 95 dBA.

These levels are admittedly in excess of the Secretary's noise standard (note 2 supra ). However, the record establishes that Turner has maintained an effective hearing conservation program whereby press operators in the Waterbury room are required to wear ear protectors which are capable of reducing the noise level in the employee's inner ear down to at least 80 decibels. Furthermore, the press operators have been instructed on the need for ear protectors while on duty, and signs in the plant remind them of this requirement. Turner has furnished various types of ear protection, custom-fitted by its nurse. The evidence establishes that the press operators have not suffered any loss of hearing nor have otherwise complained of any hearing difficulties.

Notwithstanding, a citation was served upon Turner on June 14, 1973, which, inter alia, described the noise exposure violation as "non-serious" but nonetheless ordered "(a)n abatement plan to be submitted on or before July 16, 1973," and also ordered "(f)ull compliance shall be obtained on or before June, 1974." In addition, a $75 fine was imposed.

After petitioner filed a notice of contest with the Area Director challenging the noise exposure violation, the Secretary filed a complaint with the Commission pursuant to 29 U.S.C. § 659(c). Thereafter on February 18, 1975, an Administrative Law Judge affirmed the Secretary's citation of non-compliance on the basis of the record, but without weighing the cost-benefit considerations which we deem essential to a rational interpretation of 29 CFR § 1910.95(b)(1) (note 2 supra ). The subsequent affirmation by the Commission in a two-to-one decision on review fails in the same regard and erroneously rejects out of hand Turner's furnishing of personal protective equipment, once it has been shown that technological feasibility exists and that the cost of such an abatement program is (in the balance sheet sense) affordable by an employer such as Turner.

II

The...