Russell, Burdsall & Ward, Inc. (Commission decision, December 23, 1982)

Plain-English summary

The case concerned whether engineering controls required by the occupational noise standard were feasible. After an intervening Supreme Court decision, the Commission replaced its former cost-benefit test with a test asking whether controls were technologically and economically achievable. It vacated the judge's ruling on engineering controls and remanded the case for additional evidence and reconsideration under the new feasibility test. Chairman Rowland dissented because he viewed the standard's feasible-control requirement as invalid.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(b)(1).
• Outcome: The engineering-controls portion of the judge's decision was vacated and remanded for further proceedings.
• Key point: Feasibility under the noise standard turns on whether controls are technologically and economically achievable, not on a cost-benefit comparison.

Full text (OSHRC public release)

Docket No. 76-2958

RUSSELL, BURDSALL & WARD, INCORPORATED

OSHRC Docket No. 76-2958

Occupational Safety and Health Review Commission

December 23, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

William S. Kloepfer, Assoc. Reg. Sol., USDOL

William A. Ziegler, 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set forth in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977), and substituted a test consistent with ATMI.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 is vacated with respect to the allegation concerning engineering controls.

The case is remanded for further proceedings, including evidentiary submissions, so that the interrelated issues of technological and economic feasibility can be reconsidered in light

[*2]

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.