RMI Company (Commission decision, June 28, 1979)

Plain-English summary

This is a one-page order carrying out a court of appeals remand. It decides no part of the merits. What makes it worth reading is the timing problem it describes, where the law governing a case changed after the parties had finished arguing it.

What the case was about. RMI Company ran a metal reduction plant. Employees in the chipping area worked at consoles, and the noise levels there exceeded the limits in Table G-16 of the noise standard. The standard requires feasible administrative or engineering controls, with hearing protection only as a fallback if controls cannot bring the noise within the table. The Secretary charged RMI with failing to use enclosures for the consoles.

What the Commission decided the first time. In its 1978 decision the
Commission found RMI in violation. The only issue raised on review was whether the console enclosures were technologically feasible, and the Commission found that they were. It said expressly that whether the enclosures were economically feasible was not before it. A footnote explained why: the judge had written that economic impact might be a factor in some case but not this one, because the controls the Secretary proposed were well within RMI's fiscal capacity, and RMI had not taken exception to that conclusion on review.

What the Sixth Circuit held. The court agreed that the enclosures were
technologically feasible. But it held that the word feasible in the standard
covers both technological and economic feasibility, so both must be considered before an employer can be found in violation. It pointed to the Commission's own decision in Continental Can, which had read economic feasibility into the standard and called for weighing costs against benefits.

Why that created a problem no one could have avoided. The order sets out the dates, and the dates are the whole point. The judge decided the case on June 10, 1976. RMI filed its brief with the Commission on August 12, 1976. Continental Can came down on August 24, 1976, twelve days later. The Commission decided the case on April 12, 1978. So the Commission ruled after Continental Can and was bound by it, which is why the court found error in not reaching economic feasibility. But the judge and RMI had both finished their work before Continental Can existed, and neither the Secretary nor RMI had notice that the standard would be read this way. The court concluded it would be unfair to decide economic feasibility on a record built under the older understanding, and ordered the case remanded for additional evidence and a determination whether the cost of the engineering controls is outweighed by the benefit to employee health and safety.

What this order does. Because the court requires new evidence, the Commission sends the case to an administrative law judge rather than deciding it itself. The judge who originally heard the case is no longer with the Commission, so the case goes to the chief administrative law judge for reassignment. The new judge is ordered to take evidence and determine economic feasibility as the court directed. Nothing else is disturbed.

Errors and artifacts in the source text. The release reads "RMI did not
excent to that conclusion" in footnote 2, where the sense requires "except".
Table G-16 is flattened by the text conversion, so each duration and each sound level appears on its own line and the two columns no longer read across. One footnote rule is broken in the middle by the page marker [*2], leaving the opening rule split across two lines. All are reproduced below as released.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(b)(1)
• Outcome: Remanded. On the Sixth Circuit's order, the case returns to the chief administrative law judge for reassignment, so that a judge can take evidence on economic feasibility and weigh the cost of the engineering controls against the benefit to employees.
• Key point: Feasibility under the noise standard includes economic feasibility, and where the decision announcing that reading came down after the parties had briefed and the judge had ruled, the remedy is a new record rather than a decision on the old one.

Full text (OSHRC public release)

Docket No. 13773

RMI COMPANY

OSHRC Docket No. 13773

Occupational Safety and Health Review Commission

June 28, 1979

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[*1]
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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Assoc.
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Regional Solicitor, U.S. Dep't of Labor

Robert H. Gillespy, for the employer

Bill Leslie, Rec. Sec., Local 7-629, for the employees

OPINION:

ORDER

BY THE COMMISSION:

This case is before the Commission on an order of remand issued by the United States Court of Appeals for the Sixth Circuit.
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RMI Co. v. Secretary of Labor, etc., 594 F.2d 566 (6th Cir. 1979).

In the Commission decision in this case, RMI Co., 78 OSAHRC 31/C8, 6 BNA OSHC 1523, 1978 CCH OSHD P22,674 (No. 13773, 1978), RMI Company ["RMI"] was found in violation of 29 C.F.R. �
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1910.95(b)(1) n1 for failure to use enclosures for consoles in the chipping area of its metal reduction plant.
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The only issue raised on review and therefore considered by the Commission was whether the console enclosures were technologically feasible within the terms of the standard.
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The Commission found the enclosures technologically feasible. It also noted that the issue of whether the console enclosures were economically feasible was not before the Commission. n2

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[*2]
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- - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The standard provides:

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1910.95 Occupational Noise Exposure.

(b)(1) When employees are subjected to sound levels exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized.
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If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

Table G-16 - Permissible Noise Exposures

Duration per day,

Sound level dBA

hours

slow response

8

90

6

92

4

95

3

97

2

100

1-1/2

102

1

105

1/2

110

1/4 or less

115

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n2 The administrative law judge's decision noted, "Economic impact might be a factor but not in the instant case; all engineering controls indicated by Complainant [the Secretary] are well within the fiscal capacity of Respondent [RMI]." On review to the Commission, RMI did not excent to that conclusion.

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

The United States Court of Appeals for the Sixth Circuit upheld the Commission's determination that the enclosures were technologically feasible.
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[*3]
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However, the court further ruled that under the cited standard both technological and economic feasibility must be considered in determining whether an employer is in violation of the standard.
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It emphasized that in Continental Can Co., Inc., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, et al., 1976), the Commission ruled that the term "feasible" used in �
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1910.95(b)(1) includes economic feasibility and that a cost-benefit test should be applied to determine whether an employer is in violation of the standard.

The court held that inasmuch as the Commission decision in this case was issued after Continental Can, n3 the Commission erred in not considering the issue of economic feasibility in its decision.
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It further ruled that inasmuch as the judge's decision and the submission of RMI's brief predated the decision in Continental Can, neither the Secretary nor RMI had notice of the change in law announced in Continental Can. Finally, the court ruled that it would be unfair to the parties for a determination on the issue of economic feasibility to be made on the basis of the present record.
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It concluded that the appropriate disposition [*4]
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was to remand the case to the Commission

for the taking of additional evidence on the issue of economic feasibility and for a determination of whether the costs of installing the engineering controls are outweighed by the benefits to the employees' health and safety reasonably expected to be achieved thereby.

594 F.2d at 574.

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

n3 The judge's decision in this case was issued on June 10, 1976.
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RMI submitted its brief to the Commission on August 12, 1976.
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On August 24, 1976 the decision in Continental Can was issued.
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The Commission's decision in this case was issued on April 12, 1978.

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

Because the order of the court requires the taking of further evidence, we find it appropriate to remand the case for further proceedings before an administrative law judge.
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However, the judge who originally heard the case is no longer with the Commission.
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The case is therefore remanded to the chief administrative law judge for assignment to an administrative law judge, who is ordered to take evidence and to make a determination [*5]
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on the issue of economic feasibility, as ordered by the court.

IT IS SO ORDERED.
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