Boise Cascade Corp., Composite Can Div. v. Secretary of Labor and Occupational Safety and Health Review Com'n

• Decision Date: 10 December 1982
• Docket Number: No. 77-2201,77-2201
• Citation: 694 F.2d 584
• Parties: 11 O.S.H. Cas.(BNA) 1010, 1982 O.S.H.D. (CCH) P 26,345 BOISE CASCADE CORPORATION, COMPOSITE CAN DIVISION, Petitioner, v. SECRETARY OF LABOR AND OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 584

694 F.2d 584

11 O.S.H. Cas.(BNA) 1010, 1982 O.S.H.D. (CCH)

P 26,345

BOISE CASCADE CORPORATION, COMPOSITE CAN DIVISION, Petitioner, v. SECRETARY OF LABOR AND OCCUPATIONAL SAFETY AND HEALTH REVIEW

COMMISSION, Respondent.

No. 77-2201.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 11, 1982.

Decided Dec. 10, 1982.

Warren C. Jones, Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, Idaho, for petitioner.

Dennis Kade, U.S. Dept. of Labor, Washington, D.C., argued for respondent; William J. Kilberg, Sol. of Labor, Dept. of Labor, Washington, D.C., on brief.

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

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

HUG, Circuit Judge:

Boise Cascade Corporation petitions for review of a decision of the Occupational Safety and Health Review Commission enforcing a citation for violation of occupational noise standards. The Secretary of Labor cited the company for failure to install engineering and administrative controls to abate noise levels and failure to implement a hearing conservation program. We affirm the determination that Boise Cascade violated the standard and the requirement that it institute an effective hearing conservation program. Because the Secretary failed to prove that feasible engineering controls exist, we vacate the portions of the citation requiring implementation of such controls.

Boise Cascade Corporation operates a plant in Turner, Kansas, ¹ at which composite cans are formed. ² Approximately 125 persons are employed at the plant.

In February, 1972, an Occupational Safety and Health Administration ("OSHA") industrial hygienist inspected the plant to determine the employees' noise exposure. He recorded noise levels in excess of the 90 dBA level permitted under the applicable OSHA standard, 29 C.F.R. Sec. 1910.95 (1981). Based on the hygienist's observations, the Secretary issued a citation on March 6, 1972, alleging a violation of 29 C.F.R. Sec. 1910.95. The citation noted violations in two different work areas. The first was the area where punch presses were located. The second area contained automatic seamers, hand seamers, and winders. ³

Boise Cascade contested the citation. At a hearing before an Administrative Law Judge ("ALJ"), the company conceded that the punch presses produced noise in excess of permissible levels, but argued that punch press workers were adequately protected by the requirement that they wear earplugs. As evidence of its good faith, the company presented testimony as to its efforts to develop prototype engineering controls for the punch presses. Boise Cascade denied that the remaining equipment produced noise in excess of permissible levels, and challenged the technique by which the hygienist had made his observations. It presented expert witnesses who described appropriate sound measurement techniques.

The ALJ found that the hygienist's testimony was sufficient evidence to support the citation. He determined that noise levels in all pertinent plant areas had exceeded 90 dBA during approximately seven hours of the regular workday. He concluded Boise Cascade had not implemented an effective hearing conservation program to protect its workers, and that protection through administrative controls was not feasible. Finally, the ALJ concluded that Boise Cascade's efforts to design engineering controls for the punch presses had confronted the company with "enormous problems." In view of the developmental difficulties and the company's apparent good faith, the ALJ expanded the schedule for implementation of engineering controls. He did order, however, that "Respondent shall, by June 1, 1975, complete feasible equipment and/or facility modifications to attenuate those areas wherein excessive noise was found."

Boise Cascade sought review by the Commission under 29 U.S.C. Sec. 661(i). The following issues were specified for Commission review:

(1) Whether the evidence adduced in this case establishes a violation of the Act for noncompliance with 29 C.F.R. Sec. 1910.95.

(2) Whether 29 C.F.R. Sec. 1910.95(b)(1) requires the employer to utilize feasible engineering or administrative controls if personal protective equipment used by the employees reduces the sound levels to that required by Table G-16.

(3) Whether 29 C.F.R. Sec. 1910.95(b) is so vague as to be unenforceable.

The Commission affirmed the ALJ's conclusion that the OSHA hygienist's testimony provided sufficient credible evidence that noise levels exceeded permissible standards. ⁴ The second issue--whether personal protective equipment could be used in lieu of administrative or engineering controls--was not reached, because the Commission determined that Boise Cascade had not implemented and enforced a protective equipment program. ⁵ Finally, the Commission held that the standard outlined in 29 C.F.R. Sec. 1910.95 is not unenforceably vague. It pointed to Boise Cascade's efforts at compliance as evidence that the standard is understandable. ⁶

Following the Commission's decision, Boise Cascade removed the punch presses from the plant. The parties agree that only the portions of the citation concerning the winders and seamers are at issue in this appeal.

In this enforcement action, our jurisdiction to review the Commission's decision is provided by 29 U.S.C. Sec. 660(a) and by 5 U.S.C. Sec. 706. Titanium Metals Corp. of America v. Usery, 579 F.2d 536, 540 & n. 2 (9th Cir.1978); Brennan v. OSHRC, 511 F.2d 1139, 1141 (9th Cir.1975). We must affirm the Commission's finding that Boise Cascade violated 29 C.F.R. Sec. 1910.95 if that finding is "supported by substantial evidence on the record considered as a whole." 29 U.S.C. Sec. 660(a).

Boise Cascade first challenges the finding of the ALJ, affirmed by the Commission, that its equipment produced noise in excess of permissible levels as set out in Table G-16 of 29 C.F.R. Sec. 1910.95. At the administrative hearing, the Secretary bore the burden of proof on this issue; he was required to prove the violation by a preponderance of the evidence. See 29 C.F.R. Sec. 2200.73(a) (1981); B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1372 (5th Cir.1978); Marshall v. Knutson Constr. Co., 566 F.2d 596, 599 (8th Cir.1977); Olin Constr. Co. v. OSHRC, 525 F.2d 464, 466-67 (2d Cir.1975) (per curiam). To satisfy this burden as to the existence of a violation, the Secretary provided the testimony of the OSHA industrial hygienist, Albert Stewart. Stewart made an inspection tour of the plant, accompanied by a Boise Cascade executive who identified each piece of equipment and the operator's normal work station. He acquired sound level readings by placing the microphone "perpendicular to the noise and directed towards the ear of the employee who is either standing or sitting [in the normal operating position at the machine]." Generally, readings were taken approximately three inches from each of an employee's ears. Stewart considered the pattern of the employee's movement in operating the machines and observed the cycle of functions performed by the equipment. He testified that none of the winder or seamer operators wore earplugs or other protective equipment. He estimated he spent 20 to 25 minutes taking readings in that area of the plant. The Secretary also produced evidence of the accuracy and reliability of the equipment employed by Stewart.

Boise Cascade tried to refute Stewart's testimony in two ways. It first produced evidence to challenge Stewart's testing methods. Carleton Wold, the company's Corporate Noise Control Consultant, testified that Stewart erred in holding the microphone so close to the employees' ears, because the skull reflects the sound and distorts the reading. In Wold's opinion, the better testing method is to move the sound level meter in an arc 10 to 15 inches from the employee's head, to prevent sound reflection. ⁷

The ALJ found Wold's testimony insufficient to rebut the Secretary's prima facie case. He noted that Wold's survey, which showed noise within permissible levels, was for engineering purposes rather than employee protection. He observed that although Wold was critical of Stewart's failure to consider the effect of sound reflection from employees' skulls, Wold had not considered whether this factor affected his own readings. In addition, the ALJ noted that Wold's testimony did not establish the accuracy and reliability of his equipment.

Boise Cascade also claimed that Stewart had taken "grab samples," resulting in a survey that was too brief to be accurate and that he failed to consider the machinery's intermittent cycles. Company executives testified that because the machines did not produce steady noise levels, and because mechanical difficulties resulted in calculable periods of downtime, employees were not exposed to noise in excess of 90 dBA for eight hours each day. Boise Cascade therefore asserted that because exposure to more than 90 dBA for eight hours' duration had not been shown, the evidence was insufficient to establish a violation. ⁸

The ALJ found that Stewart's survey was not based on grab samples, but that "[c]onsidering the number of locations surveyed by Mr. Stewart, his obtaining of collateral information from Respondent's managerial representative, his expertise, and further considering his most detailed testimony as to the locations and the various sound levels recorded by him, it is felt that Mr. Stewart's evidence on this issue is more credible and more probative than that of the Respondent." The ALJ further determined that the mechanical cycles of the winders and seamers was such that when they were operated simultaneously, each machine's peak noise level became indistinguishable from the background noise, so that the noise level of the machines was not intermittent.

We will not reverse the ALJ's credibility judgment, or the testimonial inferences on which it is based. See Zurn Industries,...