KIN-BUC, Inc.

Plain-English summary

Item 3 of citation 1 concerned the occupational noise standard's requirement for feasible administrative or engineering controls. An intervening Supreme Court decision led the Commission to replace its prior cost-benefit test with an achievability test. The Commission vacated the judge's ruling on that item and remanded for additional evidence on technological and economic feasibility. Chairman Rowland dissented because he believed the feasible-control requirement was invalid.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(b)(1).
• Outcome: The ruling on item 3 of citation 1 was vacated and remanded for further proceedings.
• Key point: The noise-control item had to be reconsidered under a technological and economic achievability test.

Full text (OSHRC public release)

Docket No. 76-2769

KIN-BUC, INCORPORATED

OSHRC Docket No. 76-2769

Occupational Safety and Health Review Commission

December 17, 1982

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

Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Kent A. F. Weisert, for the employer

OPINION:

ORDER OF REMAND

BY THE COMMISSION:

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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.
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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set forth in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977), and substituted a test consistent with ATMI.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 item 3 of citation 1 is vacated.
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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 [*2]
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test of feasibility established by Sun Ship, Inc. n1

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n1 "Chairman Rowland dissents.
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He would not remand the case for future 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.
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