Southwest Forest Industries (Commission decision, December 23, 1982)

Plain-English summary

Southwest Forest Industries faced an alleged violation of the occupational noise rule requiring feasible administrative or engineering controls. An intervening Supreme Court decision caused the Commission to replace its former cost-benefit analysis with an achievability test. The Commission vacated the judge's ruling and remanded for additional evidence on technological and economic feasibility under the new test. Chairman Rowland dissented because he considered the standard's feasible-control requirement invalid.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(b)(1).
• Outcome: The judge's ruling on the alleged noise violation was vacated and the case remanded.
• Key point: Feasible noise controls are evaluated for technological and economic achievability.

Full text (OSHRC public release)

Docket No. 78-3976

SOUTHWEST FOREST INDUSTRIES, INC.

OSHRC Docket No. 78-3976

Occupational Safety and Health Review Commission

December 23, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Douglas B. M. Ehlke, for the employer

OPINION:

ORDER OF REMAND

BY THE COMMISSION:

In accordance with the decision of the U.S. Supreme Court in American Textile Manufacturing 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set forth in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P 21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977), and substituted a test consistent with ATMI.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 violation 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 economic feasibility can be reconsidered in light of the test of [*2]

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