The company was engaged in repairing and refurbishing railcars and related activities when it was cited by OSHA on October 30, 2015, for serious violations. The citation contained 5 items and proposed penalties totaling $23,000.00. After [The company] timely contested the citation, the Secretary filed a formal complaint with the Commission charging [The company] with violating the Act and seeking an order affirming the citation. The parties stipulated to the dismissal of Items 1, 2a, 2b, 3, 5a, and 5b of the citation. Thus, the only remaining issue in this proceeding is Item 4 of the citation, with a proposed penalty of $7,000.00, which alleges a violation of OSHA’s audiometric testing program, 29 CFR § 1910.95(g)(1). For the reasons indicated infra, Item 4 is AFFIRMED and [The company] is assessed a civil penalty of $7,000.00.
WRITTEN STIPULATIONS
On or about May 27, 2015, personal noise monitoring by OSHA revealed that the unabated noise level in the vicinity of an employee at the worksite was 103.2 A-weighted decibels (dBA)4 on an 8-hour time-weighted average. The exposed employee was employed for a period of 6 months and 24 days as of the date of the subject inspection. During all relevant times and pursuant to [The company]’s hearing conservation program, the employee was wearing [The company]-mandated dual hearing protectors to protect him from noise exposure. The dual hearing protectors worn by the employee consisted of a fully enclosed blasting suit with a protective helmet that provided outer hearing protection with a noise reduction rating (“NRR”) of 8 decibels (dB) and inner hearing protection consisting of foam ear plugs with an NRR of 30 dB.
Hearing protectors reduce employee exposure to noise. Even though hearing protectors are rated in accordance with federal guidelines, OSHA builds in safety factors. For example, foam ear plugs are only given credit for 50% of their NRR ratings. Applying all of the OSHA safety factors to the dual hearing protectors worn by the employee, the unabated noise level of 103.2 dBA was reduced to an actual employee noise exposure of 82.7 dBA.
Although [The company] had a hearing conservation program, it did not establish and maintain an audiometric testing program. An employee who is not provided audiometric testing when required pursuant to 29 CFR §1910.95(g)(1) is exposed to a serious hazard. A penalty of $7,000.00 is appropriate if [The company] violated 29 CFR §1910.95(g)(1).
ANALYSIS
In the Sixth Circuit, the jurisdiction in which this case arises,5 to establish a violation of the Act, the Secretary must show by a preponderance of the evidence that
(1) the cited standard applies to the facts,
(2) the requirements of the standard were not met,
(3) employees had access to the hazardous condition, and
(4) the employer knew or could have known of the hazardous condition with the exercise of reasonable diligence.
As noted above, the parties stipulated to the appropriateness of the “serious” characterization of the hazard and the proposed $7,000 penalty if the exposed employee was not provided audiometric testing when required pursuant to 29 CFR §1910.95(g)(1). Thus, the only dispute is whether [The company] violated 29 CFR §1910.95(g)(1) by failing to provide audiometric testing to an employee after it was determined that the employee was exposed to an 8-hour time-weighted average for noise levels of 103.2 dBA when the dual hearing protectors worn by the employee reduced the unabated noise level of 103.2 dBA to an actual employee noise exposure of 82.7 dBA.
Under OSHA’s audiometric testing program, [The company] is required to “establish and maintain an audiometric testing program… by making audiometric testing available to all employees whose exposures equal or exceed an 8-hour time-weighted average of 85 decibels,” referred to as the action level. (29 C.F.R. § 1910.95(g)(1). The Secretary alleges in the citation [The company] violated the cited standard when it “did not establish and maintain an audiometric testing program for all employees whose exposures equal or exceed [the action level]. Personal noise monitoring by OSHA revealed that an employee working in the sandblasting area sandblasting inside rail tank cars was exposed to an [8]-hour time weighed average for noise levels of 103.2 dBA.”
[The company] argues that the term “exposure” is intended to mean exactly what it says, i.e., that employee exposure is the noise level to which the employee is actually exposed. Thus, while [The company] admits personal noise monitoring by OSHA revealed that the unabated noise level in the vicinity of its employee exceed the action level, the dual hearing protectors worn by [The company]’s employee reduced the unabated noise level of 103.2 dBA to an actual employee noise exposure of 82.7 dBA, which is below the action level. The Secretary argues the requirement to establish an audiometric testing program is triggered by exposure above the action level without regard to the dual hearing protectors worn by [The company]’s employee. The Court agrees with the Secretary.
“When employees are subjected to sound exceeding [the action level], feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels [below the action level], personal protective equipment [such as dual hearing protectors] shall be provided and used to reduce sound levels within the [acceptable] levels[.]” 29 CFR § 1910.95(b)(1). For purposes of the hearing conservation program, “employee noise exposures shall be computed… without regard to any attenuation provided by the use of personal protective equipment.” 29 CFR § 1910.95(c)(1). Further, the preamble to a standard is the most authoritative evidence of the meaning of the standard. The preamble to the January 16, 1981 amendment emphasizes that “OSHA has interpreted this to require employers to provide audiometric testing for those employees exposed above the [action level] without regard to the use of personal protective equipment.” (Occupational Noise Exposure; Hearing Conservation Amendment, 46 FR 4078-01) (1981)
As the Supreme Court has noted, “Congress intended to delegate to the Commission the type of non-policy making adjudicatory powers typically exercised by a court in the agency-review context.” Thus, “the Commission is authorized to review the Secretary’s interpretations only for consistency with the regulatory language and for reasonableness.” The Court finds the Secretary’s interpretation to be both consistent with the regulatory language and reasonable. Therefore, the Court concludes that in determining if [The company]’s employee was subjected to sound exceeding the action level, his noise exposure is computed without regard to any reduction provided by the use of dual hearing protectors. [The company] stipulated that without the use of dual hearing protectors its employee was subjected to sound exceeding the action level.
The preamble to the January 16, 1981 amendment states the amendment included a requirement that all employees who are exposed to the action level “must be included in the audiometric test program, except for those who work less than 4 months (120 days) for one employer.” (Occupational Noise Exposure; Hearing Conservation Amendment, 46 FR 4078-01) (1981). A March 8, 1983 amendment replaced the 4-month period with a 6-month period. See (Occupational Noise Exposure; Hearing Conservation Amendment, 48 FR 9738-01) (1983).
Again, the Court finds the Secretary’s interpretation in the preambles to be both consistent with the regulatory language and reasonable.
Applying the Secretary’s interpretation, all of [The company]’s employees who are exposed to the action level must be included in the audiometric test program, except employees who work less than 6 months. As indicated supra, the parties stipulated the exposed employee was employed by [The company] for more than 6 months as of the date of the inspection. Thus, [The company] “was obligated to develop and implement a monitoring program fulfilling the requirements of section 1910.95(d)(1).” Thus, “an employer’s obligation to conduct monitoring is mandatory once a threshold noise level is reached.” [The company] stipulated it did not establish and maintain an audiometric testing program. Therefore, [The company] violated the cited standard. Accordingly,
ORDER
IT IS HEREBY ORDERED THAT Item 4 of the citation is AFFIRMED and [The company] is ASSESSED a civil penalty of $7,000.00.