Nelson Trucking

Plain-English summary

Nelson Trucking operated a small sand and gravel business with four employees. MSHA found that a front-end-loader operator's eight-hour noise exposure was 2.68 times the permissible level, equivalent to 97 dBA, and cited the company for failing to use feasible engineering controls. Judge Michael A. Lasher, Jr. found that installing a muffler was feasible, while administrative controls were not practical for the small operation. He found minimal negligence because a prior courtesy inspection had not required controls, and he found the violation non-serious because an injury was not likely. The citation was affirmed and a $20 civil penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.5-50
• Outcome: Citation No. 2374054 was affirmed and a $20 civil penalty was assessed.
• Key point: Personal hearing protection did not replace the requirement to use feasible engineering controls when noise exposure exceeded the permissible level.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204
JAN 121987
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA), Docket No. LAKE 86-6-M
Petitioner . A.C. No. 47-02575-05502

            v.                                                                                               Pit #6

NELSON TRUCKING,
Respondent

                                                                                 DECISION

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois,
for Petitioner;
Mr. Kenneth M. Nelson, Nelson Trucking Company,
Green Bay, Wisconsin,
pro ~

Before: Judge Lasher

 The Petitioner initiated this proceeding on October 30,

1985, by the filing of a Proposal for Penalty requesting that a
penalty be assessed for Respondent's alleged violation of 30
C.F.R. § 56.5-50 which provides:

 (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 meet-
 ing specifications for type 2 meters contained in American
 National Standards Institute (ANSI) Standard Sl.4-1971,
 "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, N.Y.
 10018, or may be examined in any Metal and Nonmetal Mine
 Safety and Health District or Subdistrict Off ice of the
 Mine Safety and Health Administration.

                                            PERMISSIBLE NOISE EXPOSURES

                                                                                                                                                                    Sound
       Duration per day, hours of exposure                                                                                                                       level dBA,
                                                                                                                                                                 slow response

  8
  6
        .. .. . . .. .. .. .. .. .. ....... . . ... . .. . . . . .
        •   •   •   •   •   •   0   •   •   •   •   •   •   •   •   •   •   •   •   •   •   •   •   •   •   •   •   •   •   •   •
                                                                                                                                                                       90
                                                                                                                                                                       92


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Page 2

    4     ... . . . . . . . . . . . . . . . .. . . . . . . . .        95
    3     . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
                                    ~                                                     97
    2                                                                                    100
    1 1/ 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~- .        102
    l                                                                                    105
    1/ 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       110
    1/4 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       115

No exposure shall exceed 115 dBA. Impact or impulsive noises
shall not exceed 140 dB, peak sound pressure level.

x              x             x            x             x            x               x    x

(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.

 Pursuant to notice, this matter came on for hearing in Green

Bay, Wisconsin, on August 13, 1986, at which MSHA Inspector Arnie
Mattson testified for Petitioner and Kenneth Nelson, a co-owner,
testified for Respondent.

 In the citation involved, No. 2374054, Inspector Mattson

described the violative condition as follows:

"The eight hour exposure to mixed noise levels of the 120
Hough International front-end loader operator in the pit
exceeded unity (100%), by 2.68 times (268%) as measured
with a dosimeter. This is equivalent to an 8-hour exposure
to 97 dBA.  Personel [sic] hearing protection was being
worn."

 Based on stipulations, documents, and testimony, I find or

infer from the preponderant reliable and probative evidence as
follows:

 The Respondent is a very small (four employees> sand and

gravel operator doing business in the vicinity of Green Bay,
Wisconsin; it has no history of violations prior to that involved
in the subject citation which Respondent, in good faith, promptly
abated after it received notification thereof. Payment of a
penalty in this matter will not adversely affect Respondent's
ability to continue in business.

 While on a regular inspection of Respondents No. 6 Pit on

July 10, 1985, Inspector Mattson observed the crusher and
determined that a noise survey should be conducted. On July 11,
1985, Inspector Mattson performed such survey (Ex. S-3) for a
period of eight hours, during which time a dosimeter was attached
to the short collar of CHRIS NICKLAS, the operator of the 120
Hough International front-end loader.

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Page 3

 As a result of the sound level examination and testing of

the environment of the crusher operator, it was determined that
the operator of the front-end loader was exposed to (a) 97 dBA
for a period of eight hours (480 minutes), and to (b) noise 2.68
times the permissible level (T. 16-20). 1/ The loader operator
had been wearing ear protection and the Respondent's management
erroneously believed that this alone constituted compliance with
the requirements of the standard, according to the Inspector (T.
28, 29).

 To abate the violation, the Respondent was required to

install engineering controls, i.e., a muffler, on the loader
which reduced the sound level to approximately 93-94 dBA for the
relevant period. Since the mine operator had only four
employees, administrative controls, in this case, reducing the
number of hours the operator of the loader actually operated the
machine each day, were not feasible (T. 25). Since the instal-
lation of the muffler did not bring the sound level down to
permissible sound limits, the loader operator was also required
to also wear personal ear protection to insure compliance with
the standard. The Citation was terminated on August 29, 1985,
upon Respondent's compliance with the above requirements. The
Inspector indicated that the occurrence of the hazard posed by
the infraction, injury to the loader operator's hearing, was "not
likely" (Ex. S-1), but that had such occurred, such an injury
would be "permanently disabling".

Issues

 1. Whether the evidence established that Respondent failed

to employ feasible engineering controls where its employee's
exposure to noise exceeded permissible limits.

 2. If so, the amount of an appropriate penalty for the

violation.

     Ultimate Findings, Conclusions and Discussion

 The Respondent made no substantial or persuasive challenge

to the existence of the conditions which constitute the violation
and raised no legal defense thereto. 2/ By stipulation at the

1/ Exposure of the loader operator to a sound level in excess of
90 dBA for an 8-hour workday constitutes an infraction of the
standard.

2/ Respondent's concerns about not being advised about this
infraction during a prior MSHA courtesy assistance visit were,
inasmuch as such might be construed as an equitable estoppel
defense, addressed in my decision in a related matter, Docket No.
LAKE 85-102-M, issued September 11, 1986. My decision on this
question is incorporated herein by reference.

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Page 4

commencement of the hearing, Respondent conceded that the
Commission and this administrative law judge has jurisdiction over
it and the subject matter of this proceeding.

 In July 11, 1985, Respondent's loader operator was exposed

to noise 2.68 times the permissible level; the exposure was
equivalent to 97 dBA for eight hours per day.

 There were feasible engineering controls available to reduce

the exposure, i.e., the installation of a muffler on the subject
front-end loader. Respondent thus was in violation of 30 C.F.R.
§ 56.5-50 because of its failure to utilize such engineering
controls (administrative controls not being feasible) to reduce
the exposure of its loader operator to excessive noise (T. 28).

 Because MSHA had examined the Respondent's operation

previously during a courtesy inspection and had not required
engineering controls to reduce the noise levels, Respondent's
negligence is found to be minimal. Based on the Inspector's
characterization of the probability of the hazard ever being
realized as "not likely", the violation is not found to be
serious. There is no contention or evidence that the imposition
of a penalty will adversely affect this very small Respondent's
ability to continue in business. Considering the above mandatory
penalty assessment factors, and the fact that Respondent
proceeded in good faith, upon notification of the violation, to
promptly abate such, the penalty urged by the Secretary, $20.00
is found appropriate. In view of the very modest amount ($20.00)
of the penalty sought by the Secretary to begin with, I find no
reason for a reduction thereof based on MSHA's failure to advise
the Respondent about it during the prior "courtesy" visit. See
Secretary of Labor v. King Knob Coal Company, Inc., 3 FMSHRC 1417
(1981).

                           ORDER

 (1) Citation No. 2374054 is affirmed.

 (2) Respondent shall pay the Secretary of Labor within 30

days from the date hereof the sum of $20.00 as and for a civil
penalty.

                 Michael A. Lasher, Jr.
                 Administrative Law Judge

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Page 5

Distribution:

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL
60604 (Certified Mail)
Nelson Trucking Company, Mr. Kenneth M. Nelson, 2898 Flintville,
Green Bay, WI 54303 (Certified Mail)

/bls

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