Texas Architectural Aggregates, Incorporated
Texas Architectural Aggregates, Incorporated (FMSHRC CENT 86-120-M): Noise citation affirmed with a $20 penalty
Apply this to your situation
This order from 1987 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Texas Architectural Aggregates operated the Van Horn White Marble Mine, where MSHA cited excessive noise exposure from a LeRoi drill. The judge found that the drill operator and helper were exposed to noise above the mandatory limit, and that a feasible engineering control, a noise barrier, was available and had reduced exposure. The citation was affirmed, the violation was found nonserious and nonnegligent, and the operator was ordered to pay a $20 civil penalty. The proceeding was dismissed after payment.
Decision snapshot
- Cited standards: 30 C.F.R. § 57.5-50(b)
- Outcome: The section 104(a) citation was affirmed and a $20 civil penalty was assessed.
- Key point: Personal hearing protection did not replace the operator's duty to use a feasible engineering control to reduce excessive drill noise.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. TEXAS ARCHITECTURAL
DDATE:
19870625
TTEXT:
Page 2
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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 86-120-M
PETITIONER A.C. No. 41-00995-05510
v. Van Horn White Marble Mine
TEXAS ARCHITECTURAL
AGGREGATES,INCORPORATED,
RESPONDENT
DECISION
Appearances: Jill D. Klamm, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner; David M. Williams, Esq., San
Saba, Texas, for the Respondent.
Before: Judge Koutras
Statement of the Case
This is a civil penalty proceeding initiated by the
petitioner against the respondent pursuant to section 110(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a), seeking a civil penalty assessment of $20 for an alleged
violation of the mandatory noise standards found at 30 C.F.R.
57.5Ä50(b). The respondent filed a timely contest and answer and
a hearing was held in Austin, Texas. The parties were afforded an
opportunity to file posthearing briefs, but they declined to do
so.
Issues
The principal issues presented in this case are (1) whether
the conditions or practices cited by the inspector constitute a
violation of the cited mandatory health standard, and (2) the
appropriate civil penalty to be assessed for the violation,
taking into account the statutory civil
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penalty criteria found in section 110(i) of the Act. Additional
issues raised by the parties are discussed in the course of this
decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub.L.
95Ä164, 30 U.S.C. 801 et seq.
2. Sections 110(a) and (i) of the 1977 Act, 30 U.S.C.
820(a) and (i).
3. Commission Rules, 29 C.F.R. 2700.1 et seq.
4. Mandatory standard 30 C.F.R. 57.5Ä50, provides as
follows:
57.5Ä50 Mandatory. (a) No employee shall be permitted
an exposure to noise in excess of that specified in the
table below. Noise level measurements shall be made
using a sound level meter meeting specifications for
type 2 meters contained in American National Standards
Institute (ANSI) Standard S1.4Ä1971. "General Purpose
Sound Level Meters," approved April 27, 1971, which is
hereby incorporated by reference and made a part
hereof, or by a dosimeter with similar accuracy. This
publication may be obtained from the American National
Standards Institute, Inc., 1430 Broadway, New York, New
York 10018, or may be examined in any Metal and
Nonmetal Mine Health and Safety District or Subdistrict
Office of the Mine Safety and Health Administration.
PERMISSIBLE NOISE EXPOSURES
Duration per day, Sound level dBA,
hours of exposure 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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No exposure shall exceed 115 dBA. Impact or impulsive
noises shall not exceed 140 dB, peak sound pressure
level.
NOTE. When the daily exposure is composed of two or
more periods of noise exposure at different levels,
their combined effect shall be considered rather than
the individual effect of each.
If the sum
(C1/T1) + (C2/T2) + . . . (Cn/Tn)
exceeds unity, then the mixed exposure shall be
considered to exceed the permissible exposure Cn
indicates the total time of exposure at a specified
noise level, and Tn indicates the total time of
exposure permitted at that level. Interpolation between
tabulated values may be determined by the following
formula:
log T = 6.322 %68 0.0602 SL
Where T is the time in hours and SL is the sound level
in dBA.
(b) When employees' exposure exceeds that listed in the
above table, feasible administrative or engineering
controls shall be utilized. If such controls fail to
reduce exposure to within permissible levels, personal
protection equipment shall be provided and used to
reduce sound levels to within the levels of the table.
Stipulations
The parties stipulated to the following (Tr. 6Ä8):
1. The respondent's products affect commerce and the
respondent is subject to the jurisdiction of the Act
and this Commission.
2. The respondent's size as stated in terms of annual
man-hours worked is 129,227 production tons or
man-hours worked, and the size of the respondent's Van
Horn White Marble Mine is 11,385 productions tons or
man hours.
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3. The total number of MSHA inspection days at the mine in
question during the 24Ämonths preceding the issuance of the
citation in this case is 27, and during this time period the
respondent was issued civil penalty assessments for three
violations.
4. The imposition of a civil penalty assessment for the
violation in issue in this case will not adversely
affect the respondent's ability to continue in
business.
5. On February 7, 1985, MSHA Inspector David Lilly
conducted an inspection of the subject mine and issued
a citation alleging a violation of mandatory standard
30 C.F.R. 57.5Ä50(b). At the time of the inspection,
personal hearing protection was being worn by the drill
operator.
Discussion
Section 104(a) Citation No. 2236193, February 7, 1985, cites
an alleged violation of 30 C.F.R. 57.5Ä50(b), and the cited
condition or practice is described as follows:
The full shift exposure to mixed noise levels of the 12
EH LeRoi drill operator in the south central heading
exceeded unity (100%) by 235.9 times (235.9%) as
measured with a dosimeter. This is equivalent to an 8
hour exposure of 96 dBA. Personal hearing protection
was being worn.
The inspector fixed the abatement time as February 21, 1985,
and on April 25, 1985, he extended the abatement time to May 4,
1985, and noted as follows:
The operator has done several things to try to engineer
out the noise, moving the compressor, shielding the
drill rotation head and changing bits more often. SLM
survey of 30 min. showed the drill opr. to still be out
of compliance. A partial dosimeter survey avg. (sic)
out to confirm the SLM. The operator plans to do more
engineering on the drill to further reduce the noise
level.
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On June 6, 1985, the inspector extended the abatement time
further to September 3, 1985, and noted as follows:
The operator stated that he had called the manufacturer
of the LeRoi 12 EH drill for sound reduction
instructions and the engineer for the manufacturer had
told him there were no engineering controls to reduce
the noise, that they had incorporated all technology
available during construction of same, and would send a
letter to MSHA from the manufacturer stating this.
Denver Technical Support for MSHA was contacted by
Sidney Kirk and was told by them that the noise could
be reduced and that they would come to the mine and
provide assistance.
On August 27, 1985, the inspector extended the abatement
time to October 7, 1985, and noted that "The mine was not in
operation, a resurvey for mixed noise of the 12 EH LeRoi drill
operator could not be made."
On November 7, 1985, the inspector extended the abatement
time to January 10, 1986, and noted that "The Denver Technical
Support Group is scheduled to assist during that week to attempt
to reduce the noise exposure."
On January 7, 1986, the inspector extended the abatement
time to January 31, 1986, and noted as follows: "On January 7,
1986, some tests were made and simulated structures positioned
and did show a substantial reduction in the drill operator
position to noise. Additional time is needed for the operator to
construct the protective barrier on the drill."
On February 4, 1986, the inspector extended the abatement
time to March 31, 1986, and he noted that "The protective barrier
has been completed on the drill. Additional time is needed for
Denver Technical Support to do a noise study."
On April 15, 1986, the inspector terminated the citation,
and he noted as follows:
On April 15, 1986, a resurvey of noise on the stated
drill was conducted by the Denver Technical Support
Group. A reduction of noise exposure of 5 dBA had been
accomplished. There is no further engineering control
available at
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this time. However, hearing protection must still be
worn to prevent the driller from over-exposure.
MSHA's Testimony and Evidence
MSHA Inspector David P. Lilly testified as to his
background, experience, and training, and confirmed that in
addition to his regular mine inspections, he conducts
approximately 15 to 20 noise surveys a year as part of his
inspections. He explained the use of a dosimeter, and confirmed
that he conducted an inspection of the mine on February 7, 1985,
and that he took a noise survey that same day. After calibrating
the dosimeter testing devices, they were installed on a truck
driver who hauled material from the underground mine to the
crusher, and on the LeRoi drill helper who was assisting the
driller underground. Mr. Lilly described the drill as an air
percussion drill used to drill vertically and horizontally.
Mr. Lilly stated that during the noise survey period he took
periodic sound level meter readings with a testing device that
reads out in decibels rather than in percentages and that he
recorded the results. At the end of the day, his sound level
meter readings confirmed the results of the dosimeter test
results which reflected that there was an over-exposure to noise.
The dosimeter readings were considerably over the allowable noise
exposure of 90 decibels for an 8Ähour period of exposure (Tr.
11Ä17).
Mr. Lilly confirmed that during the survey shift in
question, the drill helper and operator continually wore Wilson
"muff-type" hearing protection. However, the protectors were old
and worn, and since the identification numbers were worn off, it
was difficult to ascertain whether or not they were MSHA approved
protectors. Mr. Lilly also confirmed that on the basis of his 14
years of experience as an underground miner, and statistics, a
continual over-exposure of noise levels in excess of 90 decibels
will eventually cause hearing deterioration to a point where
there will be a complete loss after time. He stated that when he
worked as a miner, personal hearing protection was not available,
and that he suffers from a loss of hearing (Tr. 18).
Mr. Lilly confirmed that he discussed possible solutions to
reduce the noise level of the drill with mine superintendent Carl
Schiller, and recommended that the air lines to a large
compressor located 20 feet from the drill be extended so as to
move the compressor as far away from the drill as
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possible. The compressor was a source of "a tremendous amount of
noise." Mr. Lilly also recommended that dull drill bits be
replaced with new ones so as to reduce the noise (Tr. 19). Mr.
Lilly confirmed that he made several follow-up visits to the mine
to monitor the noise levels and extended the abatement times
while the respondent attempted to reduce the noise levels through
engineering and contacts with the drill manufacturer (Tr. 21).
After further discussions with his supervisor, it was decided to
contact MSHA's Denver Technical Support Group to assist the
respondent in finding solutions to the drill noise levels. The
technical group had prior experience with air track drills and
were able to get substantial noise reductions in similar drills
at other operations. Since he was reassigned to another
inspection area at the time the technical support group surveyed
the drill noise, he had no personal knowledge of the detailed
results of MSHA's further testing, but did understand that a
reduction in the drill noise level was achieved (Tr. 23).
On cross-examination, Mr. Lilly confirmed that he had
inspected the mine in question since the latter part of 1982, and
he recalled an old drill that was used outside, but he never
observed it in operation. The LeRoi drill which he observed in
use underground during his February 7, 1985, inspection was "in
real good shape like it was fairly new" (Tr. 25).
Mr. Lilly confirmed that the mine in question is a marble
mine, and it is the only mine of this kind in his inspection
area. He stated that the cited drill is used "off and on" during
the working shift, but this makes no difference since his noise
survey is taken over a full 8Ähour shift and the dosimeter
averages the noise exposure over the full 8Ähour working period.
Mr. Lilly confirmed that his noise survey on February 7th was the
first one he has conducted at the mine, and he could not state
whether prior surveys had been made by MSHA. He was not aware of
any prior noise citations served on the respondent during the
time it has operated the mine (Tr. 27Ä28).
Mr. Lilly confirmed that the white marble mine in question
is worked by six employees, and he compared it to a small
underground potash mining operation. He also confirmed that the
respondent uses the same employees to work its open pit mines at
Eagle Flats (Tr. 30). Since he transferred out of the area when
MSHA's technical support group came in, Mr. Lilly could not state
the engineering and production costs of the noise shield which
was constructed to alleviate
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the noise level, nor could he state the number of hours spent by
the technical staff in developing the shield (Tr. 30).
In response to further questions, Mr. Lilly described the
LeRoi drill as a large track mounted piece of machinery, and he
stated that the operator stands at the control station while
operating the drill boom. He confirmed that the drill operator is
positioned further back from the drill helper who cleans and
collars the drill steel. He confirmed that only the drill helper
was surveyed with a dosimeter because he spends more time in the
area where the actual drilling is performed. However, on
subsequent noise surveys, he would probably test the drill
operator and a loader operator, and he tries not to survey the
same individual again (Tr. 33Ä35).
Mr. Lilly confirmed that the drill is also used for scaling
loose material, and that over an 8Ähour shift the drill is in
operation for approximately 4 to 5 hours (Tr. 36). Mr. Lilly also
confirmed that the results of his noise survey on February 7th
indicated that the drill noise exposure was 235.9 percent over
the allowable limit, and that this translates into a noise
exposure average of 96 dBA's, or 6 dBA's over the allowable limit
of 90 dBA's over the full shift noise survey period (Tr. 38Ä39).
Mr. Lilly identified the noise sources as the drill and the
compressor. The resulting noise levels to which the employees are
subjected are high frequency directional noises coming from the
air hammer and the "ringing" of the rotating steel drill bits,
and if one were to place a barrier between the employees and the
noise source, a small reduction in the noise will result (Tr.
39). The noise survey is based on a particular occupation and
takes into account the normal required duties of the person being
tested at any given time. In the instant case, a determination
was made that the drill and compressor were the main sources of
noise exposure to the area where the drill helper was required to
work (Tr. 41).
Mr. Lilly stated that his experience with similar drill
shielding devices in connection with MSHA's technical support at
another mining operation confirmed that such devices effectively
result in a great reduction of the drill noise exposure. In his
opinion, shielding devices are practical at the respondent's
mining operation and they do not hamper the operator's ability to
drill or control the drill (Tr. 42).
Mr. Lilly conceded that while his citation makes reference
to a drill "operator," the noise survey results are equally
applicable to the drill helper because both individuals
alternated at both occupational positions and the actual
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noise tests were conducted on the drill itself (Tr. 45). The work
sheet and notes which accompanied the citation state that two
individuals were exposed to the drill noise, and this would
include both the drill operator and the helper because they
alternately operate the drill, and his sound level meter reading
were taken around the drill areas, including the control station,
and they were all over 100 decibels (Tr. 48).
Thomas M. Lloyd, Physicist, MSHA Safety and Health
Technology Center, Denver, Colorado, testified as to his
education and experience, and confirmed that his work includes
testing noise levels, designing engineering noise controls and
modifications, and retesting such controls to assure positive
results. He confirmed that during his 7 years of employment with
MSHA he has been personally involved in conducting 15 noise
surveys a year. He has also been involved in at least 10 noise
control modifications for underground drill machines, and he
confirmed that MSHA performed technical assistance noise and
engineering control surveys at the respondent's mine in January
and April, 1986, and he identified exhibits GÄ4 and GÄ5, as
MSHA's reports and recommendations concerning its technical
assistance (Tr. 82Ä87).
Mr. Lloyd explained what takes place during his technical
assistance visits to mines, and he confirmed that exhibit GÄ4 is
the report he prepared with respect to his January 6Ä8, 1986,
visit to the mine in question. He confirmed that a two-side
temporary noise barrier was constructed out of plywood as a
diagnostic procedure, and when the noise level was tested with
the barrier in place, a reduction in noise resulted, and he
concluded that if a permanent shield was constructed for the
drill in question, there would be some noise reduction generated
(Tr. 87Ä90).
Mr. Lloyd confirmed that the April 8, 1986, survey and
follow-up noise measurements were made by another member of his
MSHA group, and he identified photographs of the shielding device
constructed out of panels of safety glass mounted on a wooden
frame (exhibit GÄ5; Tr. 91). Mr. Lloyd stated that the shielding
device creates an acoustical "shadow zone" for the person
standing behind the shield, and it serves to interrupt the noise
between the operator and the drill (Tr. 91). He confirmed that
such partial barrier noise control treatments for drilling
machines have been used successfully in at least 10 other
underground mines (Tr. 92).
Mr. Lloyd stated that he made it clear to the respondent
that his services were available to help in the construction
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of the barriers for the drilling machine in question, and he
estimated that the cost for the wooden frame and safety glass
materials to construct the barrier would be "in the area of
$300," plus the labor to construct it (Tr. 93).
Mr. Lloyd stated that the partial barrier shield constructed
with some scrap plywood during his January, 1986, survey resulted
in drill noise reduction at that time, and when the final barrier
was constructed and installed, MSHA's follow-up survey reported
in April, 1986, indicated a measured drill noise reduction of
five decibels. He described the method for testing the noise
levels utilizing the shield and indicated that the test results
are compared with the noise level readings taken before the
shield was in place (Tr. 93Ä95). He stated that all of the noise
exposure that was generated during the surveys in this case was
generated from the drill machine itself (Tr. 94). Mr. Lloyd
confirmed that other than the barrier shield which has been
constructed and installed on the drill in question, nothing
further can be done at this time to reduce the noise exposure,
and no further drill changes are required at this time (Tr. 97).
On cross-examination, Mr. Lloyd reiterated that there is no
other feasible control to reduce noise exposure other than the
noise control shield that has been installed on the LeRoi drill
in question (Tr. 97). He also reiterated that MSHA's Denver
Safety and Health Technology Center offers free engineering
consultant service to the mining industry to help keep the costs
down (Tr. 99). Mr. Lloyd stated further as follows (Tr. 100Ä101):
Q. You have heard testimony that the operator of the
drill is required to go outside of the barrier to clean
off the glass.
A. Uh-huh.
Q. And based on that, do you still feel that the
feasibility and the effectiveness of this barrier is
valid?
A. Yes, and there are several reasons I feel that.
First of all, it has been done several other places in
other mines and worked effectively, using glass
barriers, and we haveÄthe feedback that I have gotten
from the other projects I have worked on is that it is
somewhat of a nuisance and certainly an additional
responsibility for the operator to keep the
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glass clean, but in general a bottle of Windex or some cleaner of
that sort is sufficient to keep it clean.
Q. And did you make any notations about this operation
relative of the levels of dust and mud splattered as
compared to these other places you have visited?
A. There isÄall I really have to go by are the pictures
that we have shown in the report, because I was not in
that follow-up survey, but I would say it was
comparable to other places we have seen situations of
that degree.
And, at (Tr. 105Ä106):
Q. I'm still not sure I understand why you are
satisfied with thisÄat this particular moment in time.
A. Okay. I feel that the control as installed has met
the requirementsÄmy personal requirementsÄmy definition
of feasibility, and that is that noise control has
provided a substantial noise reduction. A 5 decibel
noise reduction will reduce the noise levelÄor noise
exposure in half for the time spent behind the shield,
so it provides significant noise reduction.
It also was constructedÄor could have been constructed
using a minimal amount of money. It is notÄwhether the
company decided to use technical support assistance in
constructing the shield or not was their decision, but
the amount of money spent could have been minimized to
somewhere in the order of $300, and so economically I
feel it is feasible.
And discussions with the drill operator at the time I
made the initial determination of the two-sided shield
indicated that there would not be a problem with
constructing the shield as we had laid it out. And, I
might add, that we purposely left the top of the shield
openÄor I am sorryÄwe did not put a roof on top of that
enclosure because when
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you are drilling in the vertical position he needed to see the
top of the drill, so we left thatÄthat was a further addition
that we had considered and decided not to go with that.
Q. Then it is your position then that this was an
inexpensive improvement so long as MSHA provides
physicists to do the engineering?
A. Well, yes, and we did.
With regard to the use of personal hearing protection, Mr.
Lloyd stated as follows (Tr. 128Ä129):
THE WITNESS: That is correct. The noiseÄone of my
points was that the amount of noise reduction provided
by the hearing protection is almost random. It is just
so variable that it is very, very difficult to protect
that. We are using hearing protection as a lastÄyou
know, it is the absolute last thing that we could think
of that would do any good at all.
To rely on hearing protection asÄto give a predicted
amount of noise reduction justÄit is just not
reasonable based on the tests. We have made over 200
tests of ear muff type protectors in the field, and our
concern is that people will be relying on hearing
protection to drop the noise level to that last
whatever number you want to pick.
When you design an engineering control, it is fixed on
the machine, and any time spent behind that will lower
his average daily noise exposure. It would be real
unlikely to go back and sample that person for all day
and come out higher or the same thenÄit may not be 5
decibels lower, but it is bound to be somewhat lower.
And my point is, given that that hearing protection is
unpredictable in its ability to reduce noise for the
operator, the engineering work, in conjunction with the
hearing protection, seems to be the most reasonably way
to approach it.
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Mr. Lloyd confirmed that he is not aware of any drills on the
market which are available, as manufactured, that will bring the
respondent into compliance with the 90 dBA requirement of the
standard. In order to achieve compliance, or attempt to do so, an
operator must modify any drill that it purchases, or the
manufacturer must make certain modifications, and MSHA is
available to assist with the design of a suitable engineering
noise control (Tr. 142Ä143).
Respondent's Testimony and Evidence
Joe R. Williams, respondent's general manager and president,
testified as to the scope or his mining operations, and confirmed
that the Van Horn, Texas White Marble Mine is the only
underground mine which he operates. Mr. Williams also confirmed
that six employers, including superintendent Carl Schiller, work
at the mine, as well as at two other surface mining locations
(Tr. 49Ä53).
Mr. Williams confirmed that the cited LeRoi hydraulic track
drill is in use at the subject mine, and that prior to the use of
that drill, a LeRoi air track drill and a GardnerÄDenver track
drill were used. The air track drills were very noisy in
comparison to the hydraulic drill currently in use. Mr. Williams
identified copies of three invoices reflecting the purchase and
trade-in of the drills which he referred to, and he confirmed
that the cited drill was purchased in November, 1983 (exhibit
RÄ1, Tr. 58).
Mr. Williams identified a copy of a letter dated May 24,
1985, after the citation was issued, received by Mr. Schiller
from the Chief Engineer, LeRoi Division, Dresser Industries,
concerning the cited drill, and it states as follows (exhibit
RÄ2, Tr. 59):
I enjoyed discussing the very interesting aspects of
your LeROI hydraulic drill rig application last week. I
regret that we could not be of more help to you in
complying with MSHA noise level requirement of 90 dBA,
8 hour average for operator.
We are required by EPA to silence portable compressors;
but as you know, there is presently no national
requirement for rock drills. I believe federal
legislation on noise purposely avoided restrictive
rules on rock drills because of the lack of any
feasible
Page 15
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means to implement. Many rock formations like your marble can
only be penetrated economically by percussion drilling means.
Percussion drilling is by nature very noisy.
Over the years we and others have experimented with
various schemes to reduce percussion drill noise.
Perhaps the biggest advance made in this direction was
the development of the hydraulic actuated hammer which
completely eliminated the pneumatic bark of pulsating
and expanding air from the machine cylinder. Even with
this advantage which you are utilizing, the impulsive
energy generated still has to travel down the steel to
bit to do any work.
Noise emanating from the rapidly struck drill steel is,
of course, the principal remaining sound source and we
have found no commercially feasible way to control it.
Various forms of telescoping enclosures and vibration
dampers have yielded marginal improvements but have
been, in general, too cumbersome and unreliable to
allow reasonable production levels.
On applications we have been involved with, earmuffs
and other personal ear protection have satisfied local
special requirements.
Mr. Williams also identified a copy of a letter dated June
7, 1985, from Mr. Schiller to Inspector Lilly, forwarding a copy
of the Dresser Industries letter, and it states as follows (Tr.
59):
We are using a LeROI 12 EH drill with a LeROI 175
compressor. We have attempted twice to reduce noise but
failed to bring this machine into compliance. Please
note paragraphs three and four in the attached letter
in relation to citation #2236193 issued February 7,
1985 and extended April 25, 1985.
We would like to have this citation extended until
suitable engineering controls are invented.
We have an existing personal protective equipment
program requiring drillers and drillers
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helpers to wear EAR (brand) plugs or David Clark Company Model
10A hearing protectors.
Mr. Williams identified a photograph of the cited drill in
question, and a photograph of the drill as modified by the noise
shield recommended by MSHA's technical support group (Tr. 61,
exhibits RÄ3, RÄ4).
Mr. Williams could not state whether prior MSHA noise
citations have ever been issued at the mine, and he stated that
"those drills are out of compliance with the regulation, and
always have been and always will be" (Tr. 64). He confirmed that
protective ear muffs or ear plugs have always been worn by his
employees since he began his mining operation (Tr. 64). He stated
that the drill operator and helper are behind the noise shield
only when they are at the controls, and he described their duties
with respect to the drilling operation (Tr. 64Ä66). He confirmed
that the sum total of the noise emanating from the operation of
the drill includes noise from the compressor, the hydraulic
mechanism engine, and the percussion of the steel drill as it
drills into the formation, and that the greater noise comes from
the steel drill (Tr. 66).
Mr. Williams stated that the glass panes on the noise
barrier accumulate mist and dust and need to be wiped off, and
that in certain drilling positions, the barrier creates some
handicap. Mr. Williams could not state how much time MSHA's
engineering staff spent on developing the barrier, and while he
had no accurate answer as to what it cost his company to
construct the barrier, he stated that "it cost several thousand
dollars of time, personnel's time" (Tr. 67). He confirmed that
Mr. Schiller, who is a mining engineer, constructed and mounted
the barrier on the drill (Tr. 68).
On cross-examination, Mr. Williams stated that while he was
never a miner, he has had 25 years of experience in the
"engineering field," and that his personnel have attended various
MSHA training schools (Tr. 69). Mr. Williams confirmed that he
has discussed the drill noise problem with Mr. Schiller a number
of times, and he considers Mr. Schiller to be a conscientious and
good engineer. However, they could not come up with any
solutions, and Mr. Williams does not believe that MSHA's solution
with respect to the noise barrier device "is worth a damn" (Tr.
71).
In response to further questions, Mr. Williams stated that
he traded in the air drill for the cited hydraulic drill because
the hydraulic is far less noisier and is less costly
Page 17
~1151
to terms of maintenance. He did not believe that the hydraulic
drill was tested for noise when he received it because everyone
knew it was inherently noisy and used ear plugs when it was
operated (Tr. 73). However, if a less noisier drill that meets
the noise regulations comes on the market, he would purchase one
(Tr. 75).
Mr. Williams stated that he was not too enchanted with
MSHA's recommended noise shielding device because "it is kind of
awkward, . . . and according to Carl Schiller, he says it
really doesn't make but about one decibel difference." Mr.
Williams does not believe that the device is a good noise
deterrent, and in his opinion, MSHA's reported 5 decibel noise
reduction with the use of the barrier "is questionable" (Tr. 75).
He confirmed that the drill operator still wears the protective
ear muffs (Tr. 75).
Mr. Williams conceded that the expense of constructing the
barrier in question was a one time expense, and that it was
installed only on the cited drill. He expressed some concern over
what the future will bring, and whether or not MSHA will at some
later time require him to install other noise devices to achieve
compliance. When asked whether there was a problem with
amortizing the cost of the noise shield, while at the same time
"keeping MSHA happy," Mr. Williams responded "I have no objection
to that. We did it . . . we spent the money. Now if they are
satisfied, it would tickle me" (Tr. 76).
Discussion
In MSHA v. Callanan Industries, Inc., 5 FMSHRC 1900
(November 1980), an inspector cited a sand and gravel mine
operator with a violation of 30 C.F.R. 56.5Ä50, a noise
standard identical to that found in section 57.5Ä50, after
conducting an 8Ähour dosimeter noise survey on an air track drill
used in a stone quarry. At the time of the survey, the drill
operator was wearing ear muffs, but the survey results showed
that for the 8Ähour shift, the operator of the drill was exposed
to 103.6 dBA, the equivalent of 660 percent of the 90 dBA
permissible noise exposure level established by the standard.
After the citation was issued, an engineer from MSHA's
Pittsburgh Technical Support Center conducted a noise survey on
the air track drill for the purpose of suggesting noise controls.
Subsequently, MSHA suggested that the drill cylinder be modified
to accommodate a muffler, and stated that Callanan could either
purchase a muffler commercially or
Page 18
~1152
construct one itself. MSHA concluded that the attachment of a
muffler would result in a noise reduction of approximately 5 dBA,
and it estimated the cost at $2,672.78. Callanan took the
position that the proposed drill shell modification was not
feasible because it was too costly to transport the drill for
retrofitting, and it stated that the drill in question was valued
at under $2,500. MSHA took the position that the proposed
engineering control was feasible because it was both
technologically achievable and reasonable from a cost standpoint.
The judge held in Callanan's favor and vacated the citation.
He found that the MSHA's cost estimate with respect to the
engineering control was "too imprecise to allow a proper economic
analysis," and he found no "reasonable assurance that there would
be an appreciable and corresponding improvement in working
conditions as a result of the proposed controls."
The Commission reversed, and rejected any notion that a
"cost-benefit analysis," as that term is commonly understood and
used, is the appropriate analytical method for determining
whether a noise control is required. The Commission construed the
term "feasible" as "capable of being done," and it concluded that
the determination of whether use of an engineering control to
reduce a miner's exposure to excessive noise is capable of being
done involves consideration of both technological and economic
achievability. In allocating the burdens of proof required to
make this determination, the Commission offered the following
guidelines at 5 FMSHRC 1909:
[I]n order to establish his case the Secretary must
provide: (1) sufficient credible evidence of a miner's
exposure to noise levels in excess of the limits
specified in the standard; (2) sufficient credible
evidence of a technologically achievable engineering
control that could be applied to the noise source; (3)
sufficient credible evidence of the reduction in the
noise level that would be obtained through
implementation of the engineering control; (4)
sufficient credible evidence supporting a reasoned
estimate of the expected economic costs of the
implementation of the control; and (5) a reasoned
demonstration that, in view of elements 1 through 4
above, the costs of the control are not wholly out of
proportion to the expected benefits. After the
Secretary has established each of the above elements,
the operator in
Page 19
~1153
rebuttal may refute any of the components of the Secretary's
case.
In Todilto Exploration and Development Corporation v. MSHA,
5 FMSHRC 1894 (November 1983), an inspector cited a violation of
30 C.F.R. 57.5Ä50(b), after conducting an 8Ähour noise survey
with a dosimeter on a jackleg percussion rock bolt drill in an
underground uranium mine and finding that the drill operator was
exposed to 114 dBA. The drill operator was wearing ear plugs and
muffs, and the drill was not equipped with a muffler. The
violation was abated by the installation of a muffler on the
drill. However, subsequent noise readings with a sound level
meter showed that excessive noise levels still existed, and the
readings established that the drill operator's average noise
exposure levels ranged between 110 dBA and 113 dBA. Even though
Todilto attached a muffler to the drill, the drill operator was
still required to wear personal protective equipment.
The judge found that the drill operator was exposed to an
excessive noise level, and although he also found that MSHA
established that the installation of the muffler was an
engineering control available to Todilto, since the exposure to
noise was still not within permissible levels as required by the
regulation, even with the muffler attached, the judge concluded
that the installation of the muffler was not a feasible
engineering control, and he vacated the citation. On appeal, the
Commission reversed and stated as follows at 5 FMSHRC 1896Ä1897:
[W]e hold that a control may indeed be "feasible"
within the meaning of 30 C.F.R. 57.5Ä50(b) even
though it does not reduce the miner's exposure to noise
to permissible levels set forth in subsection (a} of
the standard. Our holding is based upon the express
wording of the noise standard. Section 57.5Ä50(b)
unambiguously provides that when excessive noise
exposure levels exist, "feasible administrative or
engineering controls shall be utilized." It continues,
"[i]f such [feasible] controls fail to reduce exposure
to within permissible levels, personal protection
equipment is to be provided and used%y(4)27" (Emphasis
added). Thus, the noise standard clearly contemplates
that in a given case a control might not reduce the
noise exposure level to within permissible levels, but
nevertheless be a "feasible" control required to be
Page 20
~1154
implemented. To allow a mine operator to proceed directly to the
use of personal protective equipment and thereby avoid
implementing otherwise feasible administrative or engineering
controls, solely because use of the controls themselves does not
achieve permissible exposure levels, would be to allow
circumvention of the standard's clear requirement that excessive
noise levels first be addressed at their source. We note that
under the judge's approach a control that reduces the level of
noise from 114 dBA to 91 dBA (on the basis of an 8 hour exposure
period) would not be feasible simply because it fails to reduce
the noise level to 90 dBA. We find no support for this result in
the standard.
Upon remand of the Callanan case, the parties agreed to
settle the matter, and the operator paid a $78 civil penalty
assessment for the noise violation in question, 6 FMSHRC 139
(January 1984).
The Todilto case was remanded for the judge's determination
as to whether or not MSHA proved a violation of section
57.5Ä50(b) for failure by the operator to implement a feasible
engineering control within the parameters of the Commission's
guidelines as enunciated in Callanan, supra. On April 17, 1984,
the judge issued his decision and found that MSHA had established
that the drill operator was exposed to an excessive noise level,
that the muffler was a technologically achievable engineering
control capable of reducing the drill operator's noise exposure,
and that the cost was not unreasonable for the benefits achieved.
The judge found that Todilto was in violation of section
57.5Ä50(b), and stated in pertinent part as follows at 6 FMSHRC
934 (April 1984):
Therefore, based upon the credible evidence in this
case, and the Commission's decision in Callanan, I find
that the Secretary has proven the respondent violated
mandatory standard 57.5Ä50(b) by failing to implement
the feasible engineering control (muffler) which was
available to it. The fact that the muffler did not
reduce the noise level to that required by the standard
is not a proper reason for an operator to avoid the
control and go directly to personal protection
equipment. The standard contemplates the use of such
personal equipment only after all other "feasible"
Page 21
~1155
engineering controls are installed to achieve the best results
possible.
In MSHA v. Landwehr Materials Inc., 8 FMSHRC 54 (January
1986), Judge Broderick affirmed a citation for a violation of
section 56.5Ä50(b), after finding that a shovel operator at a
limestone quarry who was wearing personal hearing protection was
exposed to a 96 dBA noise level for an 8Ähour shift. After the
termination date for the citation was extended, MSHA's Denver
Technical Support Group performed a noise control survey which
showed that the noise level in the shovel operator's environment
was reduced by approximately 33 percent, from an average of 101
to 98 dBA, when a vinyl curtain was installed between the shovel
operator and the engine compartment of the shovel. While
significant, this reduction did not bring the noise level down to
the permissible 90 dBA specified in the cited standard, and
personal protection equipment was still deemed necessary. Judge
Broderick found that the installation of the vinyl curtain was a
feasible engineering control available to reduce the operator's
noise exposure, and that Landwehr's failure to utilize this
feasible noise control constituted a violation of section
56.5Ä50(b).
MSHA's Arguments
During oral argument at the hearing, petitioner's counsel
asserted that the respondent must use those available
technologically feasible engineering controls to reduce the noise
level as much as possible before resorting again to personal
hearing protection (Tr. 78). Counsel maintained that on the facts
of this case, the petitioner has established a prima facie
violation of section 57.5Ä50(b) by the respondent pursuant to the
guidelines established by Callanan Industries, Inc. and Todilto
Exploration and Development Corporation, supra. Counsel asserts
that petitioner has established that miners were over-exposed to
the drill noise, that there was a technologically available
engineering control, and that a "technical violation" of the
cited standard has been established (Tr. 140Ä141; 146). Counsel
concluded that since the inspector modified the citation to
delete his "significant and substantial" (S & S) finding, "the
references in regard to negligence are no longer a part of the
citation" (Tr. 150).
Respondent's Arguments
During oral argument at the hearing, respondent's counsel
conceded that the cited drill was out of compliance with MSHA's
noise requirements limiting the noise exposure to
Page 22
~1156
90 dBA's over an 8Ähour work shift (Tr. 139Ä140). However,
counsel took the position that the respondent did what it could
to reduce the drill noise, and he expressed concern that even
though MSHA concedes that even with the use of the noise barrier,
there are no additional feasible engineering controls available
to further reduce the noise, other inspectors in the future may
require the respondent to use additional controls to achieve
total compliance (Tr. 138). Counsel asserted further that while
it has received prior citations for noise violations, it has
required its employees to wear personal hearing protection,
purchased a quieter drill, and consulted with the drill
manufacturer in order to achieve compliance (Tr. 146Ä147).
Considering these past compliance efforts, counsel took the
position that it was in compliance with the intent of the
standard and was not negligent, and he preferred that MSHA issue
some sort of "warning" or advice to the respondent as to how to
continue in compliance, rather than issuing citations and seeking
civil penalty assessments (Tr. 147Ä148). Counsel believes further
that since MSHA has established that no further feasible
engineering controls are available, the citation should have been
withdrawn (Tr. 149Ä150).
Findings and Conclusions
The respondent in this case is charged with a violation of
the noise exposure requirements of mandatory standard 30 C.F.R.
57.5Ä50(b), for exceeding the noise exposure level for the
operator of a LeRoi 12 EH hydraulic track mounted drill which was
in use underground at the mine. Although the citation makes
reference to the "drill operator," Inspector Lilly explained that
the results of MSHA's noise surveys are equally applicable to the
drill operator and drill helper because they essentially occupy
the same occupational position, alternate their work during a
normal work shift so that each individual functions at any given
time as both the drill operator and helper, that they are both
exposed to the same noise levels emanating from the drill, and
that the noise tests and surveys measured the noise exposure from
the drill and its components.
The essential facts in this case are not in dispute.
Although the respondent's original answer denies that a violation
occurred, the respondent has not rebutted the petitioner's
credible evidence and testimony establishing that the drill in
question is out of compliance with the applicable cited noise
standard. As a matter of fact, respondent's general manager and
president Joe Williams candidly conceded that the cited drill is
out of compliance with the cited
Page 23
~1157
noise standard, and "always will be." Further, during the course
of the hearing, respondent's counsel, who happens to be Mr.
Williams' son, conceded that the drill is out of compliance with
the required 90 dBA noise exposure level over an 8Ähour shift
(Tr. 139Ä140). Under the circumstances, I conclude and find that
the petitioner has established by a preponderance of the credible
evidence in this case that the noise exposure resulting from the
underground operation of the cited drill was in excess of the
permissible limitation of 90 dBA, and that the drill operator and
helper were exposed to an excessive noise level amounting to a
noise dose over an 8Ähour period which was 235.9 percent in
excess of that permitted by the standard, resulting in an average
8 hour noise exposure of 96 dBA's. Accordingly, I further
conclude and find that the petitioner has satisfied the initial
requirements enunciated by the Commission in Callanan Industries,
Inc., supra, and has presented sufficient credible evidence of
miner exposure to noise levels in excess of the limits specified
in the standard.
The next consideration is whether the petitioner has
presented credible evidence as to the availability of a
technologically achievable engineering control capable of
reducing the drill operator or helper's exposure to excessive
noise. The facts show that after the citation was issued, and
during the extended abatement period, the respondent attempted to
reduce the drill noise exposure by moving the compressor,
shielding the drill rotation head, and changing the bits more
often, all to no avail. In addition, the respondent consulted
with the drill manufacturer, only to be told that all available
technology to reduce the drill noise had been incorporated into
the drill during its construction, and that no additional
engineering controls were available for noise reduction on the
drill as manufactured.
Subsequent to the respondent's efforts at reducing the drill
noise levels, MSHA provided technical assistance to the
respondent as testified to by Mr. Lloyd, and as reflected in his
report prepared jointly with MSHA Safety and Health Specialist
Donald D. Rapp (exhibit GÄ4), as well as in a subsequently issued
report prepared by MSHA General Engineer Richard J. Goff (exhibit
GÄ5). The evidence shows that as a result of Mr. Lloyd's
technical assistance, which included the construction of a
prototype noise barrier from scrap plywood to form a barrier
between the drill operator and the face where the drill cut into
the material being mined, the noise levels dropped. Following Mr.
Lloyd's recommendations, the respondent subsequently fabricated a
two-sided barrier from plywood and tempered safety glass, and it
was installed
Page 24
~1158
on the drill. Mr. Goff's report reflects that the recorded drill
noise levels before and after the installation of this barrier
showed a reduction of 5 dBA's in the drill noise level, and he
concluded that there was no additional suitable treatment for the
drill. He also concluded that personal hearing protection was
still needed, and that with the installation of the barrier, the
personal protection would be more effective against the lower
noise levels resulting from the use of the barrier.
Inspector Lilly testified that in his experience with
similar shielding devices at another mining operation, they have
proved to be effective in reducing drill noises. He also believed
that the barrier in question is a practical method for reducing
noise exposure and that it does not hamper the drill operator's
ability to drill or control the drill. Mr. Lloyd confirmed that
the use of similar glass barriers have proved effective in the
past, and while some of his "feedback" reflects that keeping the
glass clean may be a nuisance, it can be kept clean by the
operator. Mr. Lloyd also confirmed that his technical assistance
visit to the respondent's mine included discussions with the
drill operator, and he found that the construction and lay-out of
the barrier presented no problem. Mr. Lloyd also confirmed that
the top of the enclosure was left off to afford visibility while
the drill was used in the vertical position. The respondent did
not call the drill operator or mine superintendent Schiller to
testify in this case, and it has not rebutted the testimony of
Inspector Lilly or Mr. Lloyd.
Mr. Williams did not appear to be too enchanted with the
noise barrier and he questioned its effectiveness as a noise
deterrent. He also indicated that the glass had to be wiped off,
and that in certain drilling positions, the barrier was a
handicap. However, he did not suggest that the barrier presented
any safety hazards, nor did he offer any credible engineering
evidence to support his opinions and conclusions regarding the
use of the barrier. In short, I cannot conclude that the
respondent has rebutted the petitioner's evidence which leads me
to conclude and find that the construction, installation, and use
of the barrier in question is a technologically achievable
engineering control capable of reducing the drill noise sources
and the drill operator and helper's noise exposure.
With regard to the question as to whether or not the noise
barrier in question is an engineering control which is
economically achievable, I take note of the fact that in Callanan
Industries, Inc., supra, at 5 FMSHRC 1909, the
Page 25
~1159
Commission stated that this may be established by "sufficient
credible evidence supporting a reasoned estimate of the expected
economic costs of the implementation of the control." In the case
at hand, the evidence establishes that the initial diagnostic
noise barrier used by Mr. Lloyd during MSHA's technical
assistance survey was constructed from scrap plywood. Mr. Lloyd
estimated the cost of the one finished barrier, which consisted
of a two-sided wooden framed and glass barrier, at $300 plus the
cost of labor to construct it (Tr. 93). Utilizing MSHa's
technical support personnel to minimize the costs, Mr. Lloyd
believed that the construction and utilization of the barrier was
an inexpensive and economically feasible noise control
improvement (Tr. 105Ä106).
Mr. Williams confirmed that mine superintendent Schiller
constructed and installed the noise barrier, and while he could
not state what it cost, he estimated that "it cost several
thousand dollars of personnel time" (Tr. 67). However, there is
no credible evidence to support the respondent's estimate of the
"personnel costs." The respondent failed to call Mr. Schiller or
to present any other evidence to substantiate Mr. Williams'
conclusions. Photographs of the barrier in question (exhibit
RÄ4), and those which are included as part of MSHA's technical
assistance reports, reflects that the barrier is a relatively
simple piece of equipment mounted to the side of the drill at the
operator control station. Further, the record in this case
establishes that the costs of developing the barrier, including
the engineering technical assistance and advice leading to its
construction and installation, were all at MSHA's expense. In
addition, Mr. Lloyd confirmed that any future technical
assistance, if necessary, will be at MSHA's expense, as long as
the respondent avails itself of its services. Under the
circumstances, I conclude and find that the petitioner has
established by a preponderance of the credible evidence that the
cost of the single noise barrier in question is not economically
prohibitive, and that the respondent has failed to produce any
credible evidence to the contrary.
It seems clear in this case that the installation of the
noise barrier in question resulted in a reduction of 5 dBA's in
the drill noise level, as well as a reduction in the level of
noise exposure for the drill operator and helper, and that this
was achieved at a reasonable cost. Under the circumstances, I
conclude and find that the development and installation of the
drill noise barrier were not wholly out of proportion to the
resulting noise reduction benefits which have been achieved in
this case. The fact that the 5 dBA noise reduction with the use
of the barrier did not bring the
Page 26
~1160
respondent into total compliance with the permissible level
stated in subsection (a) of section 57.5Ä50, is no reason to
excuse the respondent from using the barrier or from continuing
to use personal hearing protection in conjunction with the
barrier. Todilto Exploration and Development Corporation, supra,
at 5 FMSHRC 1896Ä1897.
In view of the foregoing findings and conclusions, I
conclude and find that the petitioner has established a violation
of the cited mandatory standard, 30 C.F.R. 57.5Ä50(b), by a
preponderance of the credible evidence adduced in this case, and
the citation IS AFFIRMED.
History of Prior Violations
The parties have stipulated that for the 24Ämonth period
prior to the issuance of the citation in question, the respondent
was assessed for three violations. While it is not clear from the
record whether or not the respondent's past compliance record
includes citations for violations of section 57.5Ä50(b), this
burden in of the petitioner. The petitioner has produced no
evidence of any prior noise violations. Under the circumstances,
I conclude and find that the respondent has a good compliance
record.
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
The record establishes that the respondent is a small mine
operator. The parties have stipulated that the civil penalty
assessment for the violation in question will not adversely
affect the respondent's ability to continue in business.
Gravity
The record in this case reflects that the employees working
around the drill were wearing personal hearing protections. In
addition, the respondent had purchased or traded in an old drill
for a quieter one prior to the issuance of the citation, and
there is no evidence of any long-term noise exposure. Once the
noise barrier was installed, the respondent was still barely out
of compliance, but the personal hearing protection was more
effective against the lower noise levels resulting from the use
of the barrier. Under the circumstances, I conclude and find that
the violation was nonserious.
Page 27
~1161
Negligence
On the fact of this case, I cannot conclude that the
respondent was negligent. The record establishes that the
respondent required the drill operator and helper to wear
personal protective devices and they were being worn at the time
of the inspection. In addition, the respondent had purchased or
traded in its old drill for a newer one in its attempts to limit
the drill noise exposure.
Good Faith Compliance
The record established that the respondent took timely steps
to abate the violation, and cooperated fully with MSHA in its
attempts to comply with the noise standard in question. I
conclude and find that the respondent demonstrated good faith
compliance.
Civil Penalty Assessment
In view of the foregoing findings and conclusions, and
taking in to account the requirements of section 110(i) of the
Act, I conclude that a civil penalty assessment in the amount of
$20 is reasonable for the citation which has been affirmed.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
in the amount of $20 for section 104(a) non-"S & S" Citation No.
2236193, February 7, 1985, 30 C.F.R. 57.5050(b). Payment is to
be made to MSHA within thirty (30) days of the date of this
decision, and upon receipt of payment, this proceeding is
dismissed.
George A. Koutras
Administrative Law Judge
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