Stone Container Corporation (Commission decision, December 23, 1982)

Plain-English summary

This is a short order of remand issued after the law on noise abatement shifted under the parties' feet. Following the Supreme Court's decision in American Textile Manufacturers Institute, Inc. v. Donovan, the Commission held that "feasible" in the occupational noise standard means achievable. That holding overruled the cost-benefit test the Commission had used since Continental Can Co. and replaced it with a test consistent with the Supreme Court's reasoning. Because the judge in this case had decided the feasibility question under the old rule, the Commission vacated his decision as to the single-facer and double-backer operators and sent the case back. On remand the parties may make further evidentiary submissions so that the technological and economic feasibility questions, which run together, can be reconsidered under the test set out in Sun Ship, Inc. Chairman Rowland dissented. He would not remand, because in his view the requirement in 29 C.F.R. § 1910.95(b)(1) that feasible administrative or engineering controls be used is invalid.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(b)(1)
• Outcome: The judge's decision as to the single-facer and double-backer operators was vacated and the case remanded for further proceedings.
• Key point: A decision resting on the overruled cost-benefit test of feasibility does not survive; the case reopens for evidence under the achievable standard.

Full text (OSHRC public release)

Docket No. 15116

STONE CONTAINER CORPORATION

OSHRC Docket No. 15116

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

Robert L. Greenwald, Corporate House Counsel, Stone Container Corporation, For Employer

Local No. 703, United Paperworkers International Union, For Employees

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 single-facer and double-backer operators is vacated.

The case is remanded for further proceedings,

[*2]

including evidentiary submissions, so that the interrelated issues of technological and economic feasibility can be reconsidered in light of the test of feasibility established by Sun Ship, Inc. n1

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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.

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SO ORDERED.