692 F.2d 641 (9th Cir. 1982), 77-2565, Donovan v. Castle & Cooke Foods, a Div. of Castle and Cooke, Inc.

Docket Nº:77-2565.
Citation:692 F.2d 641
Party Name:Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. CASTLE & COOKE FOODS, A DIVISION OF CASTLE & COOKE, INC., and Occupational Safety and Health Review Commission, Respondents.
Case Date:November 19, 1982
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 641

692 F.2d 641 (9th Cir. 1982)

Raymond J. DONOVAN, Secretary of Labor, Petitioner,

v.

CASTLE & COOKE FOODS, A DIVISION OF CASTLE & COOKE, INC.,

and Occupational Safety and Health Review

Commission, Respondents.

No. 77-2565.

United States Court of Appeals, Ninth Circuit

November 19, 1982

Argued and Submitted Feb. 11, 1982.

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Dennis Kade, Dept. of Justice, Washington, D.C., for petitioner.

Hugh Shearer, Goodswill, Angerson & Quinn, Honolulu, Hawaii, for respondents.

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On Petition to Review an Order of the Occupational Safety and Health Review Commission.

Before BROWNING, Chief Judge, and CHAMBERS and HUG, Circuit Judges.

HUG, Circuit Judge:

Regulations promulgated pursuant to the Occupational Safety and Health Act (the "Act"), 29 U.S.C. Secs. 651-678, require employers to install feasible engineering or administrative controls to protect employees from exposure to harmful noise levels. The Secretary of Labor cited Castle & Cooke Foods, Inc. for violation of this regulatory standard. The Occupational Safety and Health Review Commission vacated the citation, concluding that the cost of the proposed engineering controls was not justified by the benefits to be gained by affected employees. The issue presented by the Secretary's petition for review is whether the Act authorizes the application of a cost-benefit analysis to determine what noise controls are feasible. We hold that the Act and the occupational noise regulations do permit consideration of relative costs and benefits, and we affirm the order vacating the citation.

Castle & Cooke Foods, Inc. ("Castle & Cooke") operates a pineapple cannery in Honolulu, Hawaii. The company maintains its own can plant in conjunction with the cannery. At that facility metal cans are manufactured from sheet metal. The can plant supplies all the cans necessary to Castle & Cooke's Hawaiian operation, as well as producing excess cans available for distribution to other local canneries. With seasonal variations, 210 to 350 persons are employed in the can plant. Additional employees affected by this appeal work in the cannery and frozen produce sections of the plant.

An Occupational Safety and Health Administration ("OSHA") compliance officer inspected the can plant and cannery on several occasions during 1974. The officer found that machinery in the can plant, and in the frozen produce and contract packing areas of the cannery, produced noise in excess of levels permitted by OSHA regulations. As a result, Castle & Cooke was cited for a nonserious violation of 29 C.F.R. Sec. 1910.95 (1981). That regulation, in Table G-16, specifies the noise levels to which employees may be exposed and the duration of exposure. The regulation also specifies, in section (b)(1), the methods of abating excess noise. 1 The citation charged that Castle & Cooke was in violation of this regulation because "[f]easible engineering or administrative controls have not been used to the extent possible where employees were subjected to sound [levels] exceeding those listed in Table G-16."

In contesting the citation, Castle & Cooke neither challenged the validity of the noise levels specified in Table G-16 nor disputed that its machinery produced noise in excess of permissible levels. Instead, its defense focused upon permissible means of protecting employees from excess noise. The Secretary, relying on 29 C.F.R. Sec. 1910.95(b)(1), insisted that the alleged violation could only be abated through implementation of engineering or administrative controls. 2 Castle

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& Cooke's defense was based on the fact, not contested by the Secretary, that it required its employees to wear personal protective equipment (specifically, ear plugs and ear muffs provided by the employer). In Castle & Cooke's view, use of personal protective equipment, in conjunction with a plant-wide hearing conservation program, adequately protected employees from exposure to excess noise. The company therefore argued that 29 C.F.R. Sec. 1910.95(b)(1), which favors one means of employee protection over another, is invalid because the preference for engineering and administrative controls exceeds statutory authority and lacks a reasonable basis in fact.

The Secretary did not dispute Castle & Cooke's claim that it enforced a mandatory program for employee use of personal protective equipment. He contended, however, that the regulatory preference for engineering and administrative controls was valid because ear plugs and ear muffs were a less effective means of protecting employees from excess noise levels. He therefore argued that Castle & Cooke's failure to install engineering controls constituted a violation of a valid OSHA standard, and that the violation could only be abated by the implementation of such controls. 3

At a hearing before an administrative law judge, the Secretary presented the testimony and written report of B. Andrew Kugler, an acoustical consultant. Mr. Kugler concluded that technologically feasible engineering controls were available for installation at the can plant and cannery. His testimony did not address the cost or economic impact of installing such controls. In addition, he noted that the proposed engineering controls might not reduce the noise within the can plant to levels required by Table G-16. The Secretary rested his case with the presentation of Mr. Kugler's testimony.

Castle & Cooke also presented testimony and documentary evidence by an acoustical consultant, Edward L. Pack. Mr. Pack agreed that it was technologically feasible to isolate the company's equipment by enclosing the machines in engineering controls that would significantly reduce noise levels outside the enclosures. The Pack report also analyzed the potential costs of implementing such controls, concluding that the costs of development and installation would total approximately $700,000, and that there would be an additional annual cost impact of approximately $250,000 on Castle & Cooke's production.

Castle & Cooke claimed that the proposed enclosures would interfere with machine maintenance and operation, and thus result in a significant loss of production. It supported this claim with the testimony of the can plant manager, the cannery manager, and the company's regional comptroller. The company also offered testimony that the increasing costs of processing pineapple in Hawaii had reduced the size and number of processing operations, so that imposing the additional cost of the proposed engineering controls threatened both the industry and the state's economy.

Other witnesses for Castle & Cooke, the company's medical director and head nurse, described the hearing conservation program and the methods by which ear plugs and ear muffs are provided and fitted. Castle & Cooke's final witness was Dr. Charles P. Lebo, a physician specializing in otolaryngology. Dr. Lebo testified that in his opinion ear plugs and ear muffs, when properly fitted and regularly used, were capable of attenuating noise to safe levels. He contested the Secretary's assertions that these personal protective devices are inadequate forms of protection because they are difficult to fit, induce ear and skin disease, and are uncomfortable for most employees.

In rebuttal to Dr. Lebo's testimony, the Secretary offered the opinion of his expert, Dr. John L. Fletcher, a professor of otolaryngology. Dr. Fletcher testified that engineering or administrative controls would be more effective than hearing conservation

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programs (including use of personal protective equipment) in preventing hearing loss.

Based on this evidence, the administrative law judge rejected Castle & Cooke's claim that the preference for engineering controls violated due process because it lacked a substantial relationship to the goal of protecting employees. He concluded, however, that the requirement of "feasible engineering controls" was so vague as to be unenforceable, in that it "compels employers to guess at their peril what controls will be subjectively considered economically feasible." (Emphasis in original.) As a result, the citation was vacated.

The Occupational Safety and Health Review Commission (the "Commission") affirmed the administrative law judge's order on an alternate basis. The Commission reasoned that in order to determine if the proposed engineering controls were economically feasible, it is necessary "realistically [to] consider the hazard presented by excessive noise and determine whether the health benefits to employees from noise reduction justify the cost to the employer." It determined that this approach was particularly appropriate in the area of noise control, for requiring employers to expend unreasonable amounts to protect workers against non-life-threatening occupational hazards would diminish employers'...

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