The Dolese Company

Plain-English summary

The Dolese Company faced alleged violations of the occupational noise standard's requirement for feasible administrative or engineering controls. An intervening Supreme Court decision led the Commission to replace its former cost-benefit approach with a test asking whether controls were technologically and economically achievable. The Commission vacated the judge's ruling on the alleged noise-control violations and remanded for additional evidence and reconsideration under that test. 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 judge's ruling on the alleged noise-control violations was vacated and the case remanded for further proceedings.
• Key point: Technological and economic achievability govern feasibility under the occupational noise standard.

Full text (OSHRC public release)

Docket No. 76-3460

DOLESE COMPANY

OSHRC Docket No. 76-3460

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

Peter T. Van Dyke, 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set forth in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541,1976-77 CCH OSHD P21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 268 1977), and substituted a test consistent with ATMI.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 violations 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

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

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.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

SO ORDERED.
�