Deering-Milliken, Inc. (Commission decision, December 23, 1982)

Plain-English summary

This short order of remand covers two consolidated dockets involving alleged violations of the occupational noise standard at 29 C.F.R. § 1910.95(b)(1). While the case was pending, the Commission followed the Supreme Court's decision in American Textile Manufacturers Institute, Inc. v. Donovan and held that "feasible" under the noise standard means achievable. That ruling overruled the cost-benefit test of feasibility from Continental Can Co. and substituted a test consistent with the Supreme Court's decision. Because the judge had ruled under the superseded test, the Commission vacated his decision on the alleged violations and remanded. The parties may make further evidentiary submissions on remand so that technological and economic feasibility, which are intertwined, can be reconsidered under the test established in Sun Ship, Inc. Chairman Rowland dissented from the remand, taking the position that the requirement in section 1910.95(b)(1) to use feasible administrative or engineering controls is invalid.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(b)(1)
• Outcome: The judge's decision on the alleged noise violations was vacated and the consolidated case remanded.
• Key point: An intervening change to the feasibility test led the Commission to vacate the judge's ruling and allow further evidence on remand.

Full text (OSHRC public release)

Docket Nos. 12598; 13037

DEERING-MILLIKEN, INC.

OSHRC Docket Nos. 12598; 13037

Occupational Safety and Health Review Commission

December 23, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Richard O'Brecht, for the employer

Gregory B. Tobin, for the employer

OPINION:

ORDER OF REMAND

BY THE COMMISSION:

In accordance with the decision of the U.S. Supreme Court in American Textile Manufacturers Institute, Inc. v. Donovan, 101 S.Ct. 2478 (1981) ("ATMI"), the Commission held that "feasible" under the occupational noise standard means achievable.

The Commission overruled the cost-benefit test of feasibility previously set forth in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977), and substituted a test consistent with ATMI.

In view of this intervening change in law, the judge's decision with respect to the alleged violations of section 1910.95(b)(1) is vacated.

The case is remanded for further proceedings, including evidentiary submissions, so that the interrelated issues of technological and [*2]

economic feasibility can be reconsidered in light of the test of feasibility established by Sun Ship, Inc. n1

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 Chairman Rowland dissents.

He would not remand the case for further proceedings.

Consistent with his dissenting opinion in Sun Ship, he concludes that the requirement in section 1910.95(b)(1) that feasible administrative or engineering controls be utilized is invalid.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

SO ORDERED