RMI Co. v. Secretary of Labor, U.S. Dept. of Labor

• Decision Date: 13 March 1979
• Docket Number: No. 78-3312,78-3312
• Citation: 594 F.2d 566
• Parties: 7 O.S.H. Cas.(BNA) 1119, 1979 O.S.H.D. (CCH) P 23,386 RMI COMPANY, Petitioner, v. SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR and Occupational Safetyand Health Review Commission of The United States of America, and Oil, Chemicaland Atomic Workers International Union, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 566

594 F.2d 566

7 O.S.H. Cas.(BNA) 1119, 1979 O.S.H.D. (CCH) P 23,386

RMI COMPANY, Petitioner, v. SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR and Occupational Safetyand Health Review Commission of The United States of America, and Oil, Chemicaland Atomic Workers International Union, Respondents.

No. 78-3312.

United States Court of Appeals Sixth Circuit.

Argued Dec. 7, 1978.

Decided March 13, 1979.

Robert H. Gillespy, Richard W. McLaren, Jr., Squire, Sanders & Dempsey, Cleveland, Ohio, for petitioner.

OSHRC, Washington, D. C., William G. Staton, U. S. Dept. of Labor, Washington, D. C., Steve Wodka, Washington, D. C., for respondents.

Before CELEBREZZE, KEITH and MERRITT, Circuit Judges.

CELEBREZZE, Circuit Judge.

RMI Company (RMI) petitions for review of a decision of the Occupational Safety and Health Review Commission (OSHRC) ¹ which affirmed a decision of an Administrative Law Judge (ALJ). ² The ALJ found RMI to be in violation of noise standards promulgated by the Secretary of Labor ³ and ordered installation of engineering controls. RMI contends that the OSHRC erred in finding the engineering controls to be technologically "feasible," as that term is used in the noise standard, and in ordering installation of economically infeasible engineering controls. We affirm the decision insofar as it found the controls to be technologically feasible. We adopt a cost-benefit analytical framework for determining the economic feasibility of such controls and remand the cause to the OSHRC for application of this standard.

FACTS

RMI is engaged in the production of titanium at its Ashtabula, Ohio, facility. As a part of this process it is necessary to remove or chip "spalt" (a combination of titanium sponge and sodium chloride) from 10,000 pound pots. The pots are put in place on a chipping deck by a forklift truck and the chipping operation is performed by three stationary chipping guns. These guns, resembling large horizontal jackhammers, are fifteen feet long and located six to seven feet apart. Each gun consists of a control console area, a gun support, a hydraboom, and a chipping hammer and bit that move along a rail to contact the spalt. During a typical work shift, the operator of each gun spends roughly three hours at the control console operating the gun, two hours at the pot site breaking up large lumps of spalt, cleaning up, performing miscellaneous maintenance, and replacing bits, and one-half hour maneuvering the pots.

The impact of the gun bits on the spalt emits a continuous staccato noise. The noise level is very high and was measured at approximately 107 decibels (dBA) over the seven hours of exposure during the normal work shift. This combination of noise level and duration of exposure per day exceeds that permitted by Table G-16 of 29 C.F.R. § 1910.95(b). ⁴

RMI has long realized the danger to its employees from such high noise levels. It has implemented a safety program requiring the chipping gun operators to wear "personal protective equipment," Viz., earmuffs. The ALJ found, and it is not disputed by the Secretary, that the earmuffs reduced the sound to which the employees were exposed to levels permitted by Table G-16. The Secretary has not disputed that RMI's program was effectively enforced.

Despite the effectiveness of RMI's safety program, the Secretary cited RMI for a nonserious violation ⁵ of 29 U.S.C. § 654(a)(2), which requires employers to "comply with occupational safety and health standards promulgated under" the Occupational Safety and Health Act. ⁶ The Secretary asserted that RMI should install engineering controls to reduce noise levels in the chipping area. The Secretary's expert recommended that acoustical enclosures be placed around both the pot area and the console area. He estimated that the cost of installation of such enclosures, plus other necessary modifications, would be approximately $125,000.

RMI contested the Secretary's citation. The ALJ, after a hearing, determined that enclosures around the pot area were not feasible and he modified the citation to that effect. ⁷ He found that enclosures around the console area of each gun were technologically feasible, however, and affirmed the citation in that regard. He found that such engineering controls would reduce sound levels to those permitted by Table G-16 while employees are working in the console area. It would still be necessary, however, for employees to wear personal protective equipment while away from the console area performing their other tasks since the noise reduction from the console enclosures would not be sufficient to bring the overall exposure during the work shift to a level permitted by Table G-16. ⁸ No finding was made as to the cost of installing these enclosures, although RMI has asserted to this court that the cost would exceed $100,000.

On discretionary review by the OSHRC, ⁹ the ALJ's decision was affirmed in full. It agreed that the engineering controls need not reduce sound levels to those permitted by Table G-16 for the entire work shift in order to be "feasible." It was held sufficient that the controls reduced noise to permissible levels for the three hours per day the employees spent in the console area. This reduction was seen as substantially decreasing exposure to very high noise levels, thus providing the employees with a significant protection against noise-related injury. The OSHRC did not consider the ALJ's determination that enclosure of the pot area was not feasible since that issue was not urged before it by the Secretary. It also found it unnecessary to consider the issue of the economic feasibility of the controls since RMI had not urged that issue before it.

TECHNOLOGICAL FEASIBILITY

Under 29 U.S.C. § 660(a), "any person adversely affected or aggrieved by an order of the" OSHRC "may obtain review of such order in" the appropriate United States Court of Appeals. Our scope of review in such cases, not unlike that in our review of other administrative agency action, is a narrow one. ¹⁰ The statute provides that the OSHRC's factual findings, "if supported by substantial evidence on the record considered as a whole, shall be conclusive." ¹¹ Inasmuch as RMI does not contest any of the OSHRC's factual findings, but rather the legal consequences flowing therefrom, we accept the facts found below as supported by substantial evidence.

In reviewing OSHRC determinations other than factual findings, this circuit has held that our scope of review is that applicable to administrative agencies generally as found in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Empire-Detroit Steel Div. v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978); Dunlop v. Rockwell International, 540 F.2d 1283, 1288 (6th Cir. 1976), citing cases. In Dunlop we quoted the standard set out in § 706(2)(A):

" 'The reviewing court shall

(2) hold unlawful and set aside agency action, findings, and conclusions found to be

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' "

We continued:

The Supreme Court in Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc. et al., 419 U.S. 281, 285-286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974), stated:

" 'Under the "arbitrary and capricious" standard the scope of review is a narrow one. A reviewing court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." The agency must articulate a "rational connection between the facts found and the choice made." . . . While we may not supply a reasoned basis for the agency's action that the agency itself has not given, . . . we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned. (Citation deleted.)' "

540 F.2d at 1288. ¹²

Applying the above standard to all aspects of the OSHRC decision other than economic feasibility, we hold that the decision passes muster. We cannot say that the decision on technological feasibility is "arbitrary and capricious" inasmuch as it clearly implements a substantial reduction in noise levels for at least the three hour period every day that the employees spend at the control consoles of the chipping guns. It was not unreasonable to hold that the enclosures represented "feasible engineering controls," as that phrase is used in the regulation, even though overall noise levels were not brought within Table G-16 limits. ¹³

Given the fact that the employees will still be required to wear personal protective equipment for the remaining time they spend in the vicinity of the chipping guns, ¹⁴ we probably would not have reached the same result as did the OSHRC were we considering this case as an initial proposition. We are not called upon, though, to decide whether the OSHRC chose the best course or the Most reasonable interpretation of the regulation. We are only asked to decide if it chose a reasonable interpretation, which was done here. Floyd S. Pike Electrical Contractor, Inc. v. OSHRC, 576 F.2d 72, 75 (5th Cir. 1978). We are not "empowered to substitute (our) judgment for that of the agency." We cannot say "there has been a clear error of judgment." ¹⁵ "As a general matter, the (OSHRC) is entitled to great deference in its reasonable interpretations of regulations promulgated under the Act." (citations omitted). Diebold, Inc. v. Marshall, 585 F.2d 1327, 1332, 1334 & n. 10 (6th Cir. 1978). Therefore, in all respects save economic feasibility we affirm the decision of the OSHRC. ¹⁶

ECONOMIC FEASIBILITY

Neither the statute nor the particular regulation involved here specifically discuss economic considerations relative to their implementation. Both, however, speak in terms of "feasibility." 29...