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LONE STAR INDUSTRIES, INC.
March 31, 1999
LAKE 98-16-RM

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                         March 31, 1999

LONE STAR INDUSTRIES, INC.,   :  CONTEST PROCEEDINGS
               Contestant     :
          v.                  :  Docket No. LAKE 98-16-RM
                              :  Citation No.  7824109; 11/4/97
SECRETARY OF LABOR,           :
  MINE SAFETY AND HEALTH      :  Docket No.  LAKE 98-18-RM
  ADMINISTRATION (MSHA),      :  Citation No.  7824110; 11/4/97
               Respondent     :
                              :  Greencastle Plant
                              :  Mine ID: 12-00064
                              :
SECRETARY OF LABOR,           :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :  Docket No. LAKE 98-172-M
               Petitioner     :  A. C. No. 12-00064-05539
          v.                  :
                              :  Greencastle Plant
LONE STAR INDUSTRIES, INC.,   :
               Respondent     :

                            DECISION

Appearances:  William I. Althen, Esq., Heenan, Althen & Roles,
              Washington, DC for  Lone Star Industries, Inc.;
              Christine M. Kassak, Esq., Office of the Solicitor,
              U. S. Department of Labor, Chicago, Illinois for
              U.S. Department of Labor.

Before:  Judge Barbour

     These contest and civil penalty proceedings arise under
sections 105(d), 105(a), and 110(a) of the Federal Mine Safety
and Health (30 U.S.C.  815(d),  815(a), and  820(a)).  They
involve two citations issued to Lone Star Industries, Inc. (Lone
Star) at its Greencastle Plant, a cement and limestone facility
located near Greencastle, Indiana.  The citations allege that
Lone Star violated 30 C.F.R.  56.5050, a mandatory health
standard that regulates miners' exposure to noise.[1]

     The citations charge that two general laborers working in
the plant's mill processing building were subjected to noise
levels that exceeded the allowed limit and that the company
did not implement required feasible controls.  The citations
also allege that the violations were serious, that they
significantly and substantially contributed to a mine
health hazard, and that they were the result of the
company's negligence.

     Lone Star sought review of the citations arguing that there
were no violations; or, if the violations existed, the findings
of the inspector regarding the gravity of the violations and the
negligence of the company were not justified.  The Secretary
answered, asserting the citations were proper in all respects.

     The review proceedings were assigned to me.  At the parties'
request, I stayed them pending the filing of an associated civil
penalty proceeding.  When initiation of the proceeding was
delayed, the parties agreed to dissolution of the stay and to
trial of the review cases.  The parties understood that at the
trial evidence would be taken on the civil penalty aspects of the
alleged violations and that the evidence would be applied to the
civil penalty case when it was filed.

     The review cases were tried in Greencastle, Indiana.  In the
subsequently filed civil penalty proceeding, the Secretary
proposed a penalty of $50 for each alleged violation.  The civil
penalty case herein is consolidated for decision with the contest
proceedings.  Counsels have filed helpful briefs.

                       THE CENTRAL ISSUES

     The central issues are whether the Secretary proved the
cited laborers were working in a violative noise environment,
and, if so, whether there were feasible engineering or
administrative noise controls the company should have been
using (see Tr. 14-21).

                          STIPULATIONS

     At the commencement of the hearing, the parties stipulated
as follows:

          1. The . . . Commission has jurisdiction over these
     proceedings.

          2. Lone Star is an operator within the meaning of
     the . . . Act . . . and the Greencastle plant is a mine
     within the meaning of the Act.

          3. [A]t all times relevant to these proceedings,
     Lone Star operated the Greencastle plant.

          4. Lone Star and its . . . plant are subject to
     the jurisdiction of the Act.

          5. [T]he plant's operations affect interstate
     commerce.

          6. [O]n November 4, 1997, an [MSHA inspector] . .
     issued [Loan Star] Citation N[o.] 7824109 pursuant to
     Section 104[a] . . . of the Act . . . alleging a violation
     of . . . [s]ection 56.5050.

          7. [O]n November 6, 1997, the . . . [MSHA inspector]
     issued a modification to Citation N[o.] 7824109. . . .

          8. Citation [No.] 7824109 and the modification
     where properly served .

          9. [O]n November 4, 1997, [the MSHA inspector] . .
     issued . . . Loan Star . . .Citation N[o.] 7824110
     pursuant to Section 104[(a)] of the . . . Act . . . alleging
     [a] . . . violation of . . . [s]ection 56.5050.

          10. [O]n November 6, 1997, the [MSHA inspector]
     issued a modification to Citation N[o.] 7824110.

          11. Citation N[o.] 7824110 and the modification
     were properly served .

(Tr. 9-11; see also Joint Exh. 1)

                            THE FACTS

The Kiln, The Burner Pipe , And The Replacement Of The Pipe

     One of the processes undertaken at the plant is the burning
of coal in a kiln.  The kiln is operated at extremely high
temperatures.  Fuel is fed into the kiln through a "burner pipe".
The burner pipe usually needs to be replaced once or twice a
year.  When the time comes, the kiln is shut down, the pipe is
removed, and a new pipe is readied for insertion into the kiln.
Once the new pipe is installed and operating, the pipe requires
no further maintenance, and the kiln is operated twenty four
hours a day, seven days a week until the pipe again is replaced
(Tr. 174-175).

     Before a new burner pipe can be installed in the kiln, the
pipe must be insulated to protect if from the kiln's high
temperatures.  This is done by standing the pipe upright, setting
a two-part form around the pipe, and pouring refractory material
into the form.[2]  An overhead came is used to lift the pipe and
to move the two parts of the form into position.

     After the refractory is poured, the pipe and the material
are allowed to set for a day or two after which the form is
removed, and the pipe is moved to a furnace where the insulation
is heat cured.  Once the refractory is cured, the insulated
pipe is inserted into the kiln, and the kiln is restarted.

     The process of changing the pipe usually involves two
workers.  Until November 1997, the job was done in the plant's
machine shop (Tr. 131).  The machine shop has an overhead crane
that can lift the pipe and the two-part form, and it has a work
area that can accommodate the pipe, form, and laborers (Tr.
127-128).  The machine shop is a very quiet area of the plant.

     In 1997 Lone Star decided it would experiment with a new
type of pipe (Tr. 171, 175).  The new pipe was longer than the
pipe it was using and its diameter was different.  The company
hoped that the new pipe would result in the more efficient
burning of fuel in kiln, the release of less emissions, and
a better product (Tr. 174).

     In November the time came to replace the burner pipe with
the new and longer pipe.  Because of the length of the new pipe,
the machine shop could not be used as the work site.  Rather, the
company decided to use its mill processing building because it
had a overhead crane that was high enough to accommodate the new
and longer pipe (Tr. 131-132, 137, 156).

The Mill Processing Building

     The mill processing building contains three overhead mills 
two finish mills and one raw mill.[3]  The work area in the mill
processing building measures approximately 87 feet by 29 feet.
The finish mills were located over the area, approximately 15 to
17 feet above the floor (Tr. 140, 145; Conts. Exhs. 6, 7).  The
raw mill had to be shut down in order safely to transport
the pipe two-part form to the work area under the crane, to
erect the pipe, and to put the form in place.  However,
the finish mills continued to operate (Tr. 132).

     When the mills are operating it is very noisy in the
building.   Usually, no one is  assigned to work in the building
for an extended time.  Miners only access the building for short
periods to do maintenance work, to cleanup, or to traverse the
building to get from the shop to the office area (Tr. 189-190).
Because of the noise the company has posted signs at various
entrances to the building.  The signs advise miners to limit
their time in the building.[4]

The Laborers

       When the work of replacing the pipe was announced, two
laborers, Steven Welker and Ron Costin, bid for and were awarded
the job.  They bid pursuant to the company-union labor agreement
(Tr. 60, 123, 125).  Under the agreement, laborers who then
worked at the plant had the right to bid for the job on the basis
of seniority.[5]  The job was classified higher than the work of
a general laborer, and Welker and Costin were entitled to more
pay as a result (Tr. 124-125, 170 ).

     Welker and Costin began the job on November 4.  Their work
shift was approximately 6:30 a.m. and 3:30 p.m.  The job required
them to be in and out of the mill processing building.  Welker
described their duties in the morning:

          We . . . went over to the carpenter shop and got
     our tools and started by getting the tow motor . . . and
     bringing the back form [into the mill processing building]
     and setting it up and chaining it off.  And then we brought
     the burner pipe in and for that we had to use the . . .
     crane to pick that burner pipe up and set it in the form,
     and then we used the tow motor to bring in the back part
     and then [we] bolted it together (Tr. 118-119, see also
     Tr. 138).

The laborers completed this part of the job by their lunch break.
After lunch they:

     had to go outside and get the mixer and bring it in
     and . . . had to go over to the other side and get a
     pallet and set the mixer on [it] to raise it up off the
     floor.  We had to bring in the refractory and other stuff
     to mix it with, so we were in and out [of the mill
     processing building] in the afternoon (Tr 119; see also Tr.
     126).

     The laborers spent between six and seven hours doing the
job. They worked between five and five and one half hours in
the mill processing building (Tr. 119, 177, 192).  During all
the time they worked on the job they were wearing company
provided ear plugs.

     The laborers believed they were the workers with the most
experience in insulating the burner pipe and that they were the
best people available for the job (Tr. 126-128).  Welker stated,
"[W]e had been there the longest and were the most senior people
and had been around that kind of stuff probably more than the
other people had been" (Tr. 146).  Further, he and Costin were
the workers most experienced when it came to using the overhead
crane (Tr. 142).  (Costin was the one who actually operated the
crane (Tr. 138).)  Welker explained, "[Y]ou have to be shown how
to run [the crane] . . . to be broke in on it before you can run
it" (Tr. 151).  In Welker's view, if he and Costin had been
rotated out of the  job part of the time, the company would have
lost the use of its most experienced people and the job would
have taken more time to complete (Tr. 143, 168).

The Inspector, The Inspection, And The Citations

     In November 1997, William Oglesby, an inspector from the
Secretary's Mine Safety and Health Administration (MSHA), was
scheduled to conduct his first regular inspection of the
Greencastle Plant.  The inspection was going to include testing
the noise levels to which Lone Star's employees were exposed.[6]

     On the morning of November 4, Oglesby went to the plant.
Oglesby explained to  Dismukes that he needed to test employees'
noise exposure to determine if there were any "compliance
problems" at the plant (Tr. 32, 170).  Oglesby asked Dismukes to
select two laborers for noise testing (Tr. 170).  Dismukes called
the plant foreman on the mine telephone and the foreman sent
Welker and Costin to the office.  Prior to their arrival, Oglesby
checked two dosimeters he had in his possession to make sure the
instruments were working properly (Tr. 40).  They were, and when
the men arrived, Oglesby fitted them with the dosimeters (Tr. 56,
60, 176).[7]    Once the dosimeters were in place, the men wore
them for the rest of the work day.  Dismukes explained to Oglesby
that the job the laborers were going to do was not their regular
of work (Tr. 62).

     Oglesby inspected other parts of the mine while the miners
were working, but he visited the miners three times, at 11:00
a.m., 2:20 p.m, and at the end of their work period.  At 11:00
a.m. the dosimeters indicated Welker was exposed to an average
noise level of 132.3 %  and Costin to an average noise level of
122.7% (Tr. 86-87; Conts. Exhs. 1 and 2).  At 2:20 p.m. the
dosimeters showed readings of 132.4% for Welker and 141.4% for
Costin (Tr. 87; Conts. Exhs. 1 and 2).   The last time Oglesby
read the dosimeters was at the end of the laborers' shift, and
the readings respectively were 181.5% and 171.5% (Id.).
(Oglesby's tests were the only ones conducted on November 4.  The
company did not perform its own tests.)

     Oglesby matched the sound level readings of the dosimeters
against those of his sound level meter (SLM).  He found the
readings were the same (Tr. 58-59).  From the results of the
dosimeter readings, he calculated Welker and Costin respectively
were exposed to time-weighted average exposures of 94.3 and 93.7
dBA during the period they worked.  This was more than the level
allowed by section 56.5050 (Tr. 58-59).[8]    Because Oglesby
also believed Lone Star was not using feasible engineering or
administrative controls, he issued citations to the company.

     Citation No. 7824109 is based on the noise levels to which
Welker was subjected and Citation No. 7824110 is based on the
dosimeter readings with regard to Costin.  The citations as
issued stated that "[f]easible engineering controls were not
being used to eliminate the need for hearing protection" (Cont.
Exh 1 at 1, Cont. Exh. 2 at 1).  Later in the day on November 4,
Oglesby modified both citations to indicated "[f]easible
engineering or administrative controls were not being used" (Id.
at 2).  Oglesby could not recall whether or not he talked to
anyone at MSHA about the modifications (Tr. 70).  He agreed,
however, that in issuing the citations he did not make a
significant analysis with regard to either engineering or
administrative controls
(Tr. 71-72).

    Sources Of The Noise And Their Control

     All of the witnesses testified that the mill processing
building was very noisy.  Welker believed that although sound
came from "all around," due to the finish mills "more sounds
[came] from above" (Tr. 145).   Costin testified that most of the
noise was from overheard, or, as he put it, from "the mills right
above you" (Tr. 16).  Oglesby, who admitted he was "not very
familiar" with the plant (Tr. 47), testified the sound to which
the laborers were exposed was coming from above, from the side,
and that some was reverberating off the concrete floor (Tr.
62-63).

     The noise coming from overhead was produced by the "big
steel balls [in the mills] that roll[ed] around and crush[ed]
[the material in the mills into smaller particles" (Tr. 47).
Oglesby described the noise as "like a bolt or something that
fell out of your pocket in the washing machine [and] that
was banging up against the sides" (Tr. 64).

     In Oglesby's opinion there were engineering controls the
company could have used to reduce the miners' noise exposure.
Although it was not practical to install engineering controls to
dampen the sound from the overhead mills, he thought that Lone
Star could have installed local sound barriers, or as he
described them "some small [wooden] barriers," around the work
area (Tr. 55, see also Tr. 72-73).  As he envisioned it, the
barriers could have been eight to ten feet high, "like partitions
in offices, but . . . [with] sound absorbing type material"
(Tr.55).  He also described ten to twelve feet high lead-lined
partitions ("lead curtains") that could have been installed where
the men were working (see Tr. 216-218).  He believed that either
kind of partition could have offered "some reduction" in noise
(Tr. 218).  Further, he suggested panels of sound absorbing
material could have been placed over the laborers' heads, between
the men and the mills (Tr. 102).  He acknowledged, however, that
given the fact the insulation of the burner pipe was infrequently
performed in the mill processing building and that it was
essentially a "one-day job", installation of engineering controls
might be "ridiculous" (Tr. 75).

     In addition to Oglesby's opinions, the Secretary offered the
testimony of George Schorr, an MSHA industrial hygienist.  At the
time of the hearing, Schorr, who holds a masters degree in
industrial hygiene and safety, had worked for MSHA for five years
(Tr. 196-201).  Schorr's testimony was based on his expertise in
the field of noise and its control, on his review of Oglesby's
notes, and on hearing the testimony of Oglesby, Welker, Costin,
and Dismukes.

     Schorr shared Oglesby's view that partitions could have been
used as noise barriers.   He suggested panels made of lead, or
vinyl, or plywood (Tr. 220-221).  He was of the opinion that just
using plywood would result in a "substantial drop" in the noise
level (Tr. 221), but he did not know how much noise reduction
could be expected "without monitoring or testing, without taking
a look at noise reduction ratings in the specifics of the room"
(Tr. 222).

     Like Oglesby, Schorr seemed to have doubts about engineering
controls.  When asked what his opinion was with regard to cutting
down noise exposure in the area where the pipe was erected, he
replied:

          [W]ithout looking at specific information on the
     cost of the materials, it would be hard to give . . . an
     estimate.  You could probably do it for less than $10,000,
     but it would probably cost you more than a couple hundred
     dollars. . . . I didn't look at engineering controls
     specifically because we were more interested in adminis-
     trative controls (Tr. 223).

He added, "My opinion is that engineering controls, although
available, may not be feasible, the cost may be significant" (Tr.
212).

     David Starr is the general manager and chief consultant of
American Star International, a firm that specializes in vibration
and noise analysis.  Since 1983, he has conducted approximately
60 noise analyzes at various companies (Tr. 168).  Starting in
February 1998, he conducted such an analysis at the Greencastle
Plant.  He not only evaluated noise sources in the mill
processing building, he also evaluated them in the pump room, the
compressor room, in the warehouse, and in other areas of the
plant.  He took up to 60 noise readings throughout the entire
plant (Tr. 270-274).  He testified as an expert in noise analysis
(Tr. 270, 279).

     Starr did not believed engineering controls were feasible.
Based upon his noise analysis, he concluded that in the mill
processing building the dominant noise was coming from the
overhead finish mills (Tr. 273).  In his view, there was no way
to meaningfully diminish this noise.  Partitions were not
practical because they did nothing to stop the noise coming from
overhead.  The only way to interdict that the noise would be to
put panels or a "ceiling" between the men and the mills.  This
was not possible because the ceiling would have prevented use of
the overhead crane (Tr. 275).  Asked if he was able to suggest
any effective engineering control, Starr responded "not really"
(Tr. 276).

     The real focus of the Secretary's suggestions with regard to
noise control was the administrative area.  Oglesby believed the
company should have rotated its employees so that laborers in the
area were limited to four hours of work (Tr. 55, 88-89).  He
thought the company had laborers available who could have been
rotated (Tr. 56).  However, he did not do noise tests on any
other miners on November 4, nor did he or anyone else from MSHA
conduct a noise survey of the plant.  Therefore, he did not know
what the noise level was for laborers who might have replaced
Welker and Costin, nor could he give a knowledgeable opinion as
to the noise level to which Welker and Costin reasonably could
have been expected to be subjected once they were replaced (Tr.
101).

     Schorr, Lone Star's expert, also believed there were
feasible administrative controls that the company could have
instituted.  Lone Star could have broken up the job over two,
three, or four days, exposing Welker and Costin to reduced
noise levels each day.   Or, it could have used two
different crews (Tr. 227, 239).  Since the total time
worked would have been the same, the cost to the company
of instituting the controls would not have been
significant, or out of proportion to the benefit expected (Tr.
230, 232, 239).  Finally, Schorr suggested the company could have
eliminated the problem altogether by doing the work outside the
mill processing building (Tr. 228).  If he had been in charge, it
is how he would have solved the problem (Tr. 240).

     Not surprisingly, perhaps, Lone Starr's employees doubted
the efficacy of the suggested administrative controls.  With
regard to rotating employees, Welker stated:

          In my opinion, it wouldn't have been feasible to
     bring someone new into the job.  They don't know where
     we left off, what bolts we tightened, what we hadn't
     tightened.  To me, it wouldn't make sense to switch people
     out of a job like that.

          If it was a simple job that anybody could do . . . it
     might be okay.  But it wouldn't make any sense to do it on
     that job (Tr. 144).

     Dismukes agreed.   He stated, "[W]hen a person starts on a
job, it's our contention that [the] person should finish the job.
And . . . as long as it is done safely, that's what we do" (Tr.
189-190).  In addition, Dismukes noted that Welker and Costin
were receiving an upgrade in pay for doing the job (approximately
an additional $3.00 an hour), and that rotating Welker and Costin
out of a job for which they had successfully bid and for which
they received augmented pay could have violated the company-union
agreement (Tr. 190).

     Starr agreed the administrative controls could cause labor
problems.  He stated that "scuttlebutt" he hear from the crew
lead him to believe "it would be very difficult to make the work
force split" (Tr. 276) because the miners "are pretty strong on
what they want to do and don't want to do" (Tr. 275-276).  He
also stated that to evaluate the adequacy of the suggested
administrative controls it was necessary to understand the noise
levels of areas to which the laborers might be sent and from
which they might come, something MSHA did not know (Tr. 278).

            SECTION 56.5050 AND THE ELEMENTS OF PROOF

     The elements of proof of a violation of section 56.5050 are
set forth in Callanan Industries, Inc., 5 FMSHRC 1900, 1909
(November 1983), wherein the Commission stated that the Secretary
establishes a prima facie case of violation by offering:

          (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 the elements
     1 through 4 above, the costs of the control are not
     wholly out of proportion to the expected benefits.[[9]]

The Miners' Exposure To Noise Levels

     The citations state that Welker was exposed to a noise level
equivalent to 94.30 dBA for the period worked (Conts. Exh. 1) and
Costin was exposed to a level equivalent to 93.89 dBA (Conts.
Exh. 2).  Oglesby described where he placed the dosimeters and
microphones (Tr. 37, 39, 41-42, 161).  He also described how he
checked the dosimeters to make sure they were working properly
(Tr. 40).  Further, he matched the results shown by the
dosimeters against the readings he obtained using a SLM (Tr.
58-59).  The company did not challenge the accuracy of the
dosimeters or the methods used by Oglesby to measure the sound
levels.  Nor did the company  conduct its own noise survey (Tr.
177).

     Given these factors, there is sufficient credible evidence
to find that on November 4, 1997, Welker and Costin were exposed
to an average noise level in excess of that specified in the
standard.  In other words, I find that the laborers were exposed
to 94.30 dBA and 93.89 dBA for the equivalent of an eight hour
day.  Because the exposure level exceeded 90 dBA, both laborers'
exposure exceeded that specified in section 56.5050(a).

Available Engineering Controls

     It is clear from the testimony that although Welker and
Costin were working in an environment where noise was emanating
from multiple sources, there was one primary, overriding source
  the overheard finish mills.  Welker, Costin, and Starr, were
far more familiar with the mill processing building and the noise
sources than were Oglesby, who was on his first inspection of the
plant, and Schorr, who never visited the plant.  Welker, Costin
and Star agreed that most of the sound came from above (Tr. 145,
164, 273).  Thus, I find there is ample testimony to support the
inference that the predominant source of the noise that caused
the laborers to be overexposed was the overhead mills.

     To establish the second element proof as set forth in
Callanan , the Secretary had to establish the existence of a
technologically achievable engineering control that could be
applied to this predominant source.  It would have done no good
to diminish some of the ambient sound, if the noise from the
overhead mills continued to descent on the laborers.  Oglesby
thought it would be "almost impossible" to muffle the mills
themselves (Tr. 72-73), and Schorr, who also had doubts about
whether they could be muffled, believed that even if it were
possible, control would be economically prohibitive (Tr. 212).

     Therefore, the Secretary fell back on suggesting indirect
engineering controls for the sound.  Oglesby, and to a lesser
extent Schorr, suggested Lone Star erect partitions in the mill
processing building.  The problem with the suggestion is the lack
of any credible evidence the partitions would have lessened
significantly any of the sound from above (See Tr. 62-63).
Although Oglesby thought it might have been possible to put
"panels" of sound absorbing material over the partitions and
between the laborers and the mills, the fact the laborers had to
work with an overhead crane and with a pipe that would have
extended through part of the "ceiling" made the suggestion
totally impractical.  Moreover, the Secretary's witnesses never
explained clearly how the partitions could have been placed so as
to both diminish the sound and to allow the laborers to do the
job they were assigned (see Tr. 216-217).  As was apparent from
the testimony, the Secretary's priorities simply were not
directed at engineering controls
(Tr. 75, 223).

     For these reasons, I conclude the Secretary did not present
sufficient credible evidence of  technologically achievable
engineering controls and that her case with regard to engineering
controls has failed.

     In view of this finding, I need not reach questions
regarding the reduction in the noise level that could have
been obtained or the expected cost of implementing the
suggested controls.  Nevertheless, I note Schorr's admission
that "without monitoring and testing" and without being
familiar with "the specifics of the room", he was not certain
how much noise reduction could be expected (Tr. 222), and
that even if engineering controls were achievable, they
might not be feasible because of "significant" costs
(Tr. 212).

Available Administrative Controls

     The Commission has not ruled regarding what constitutes a
feasible administrative control (see A.H. Smith, 6 FMSHRC 199,
201, n.2 (February 1994)).  However, it is generally accepted
that "administrative controls" involve the management of
personnel and work practices to achieve compliance with the
standard, and in Callanan, the Commission defined "feasible" as
"capable of being done, executed, or effected" (5 FMSHRC at 1907,
citing American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490,
508-509 (1981)).  These principles offer guidance when analyzing
the Secretary's suggested administrative solutions to the
laborers' noise exposure.

     When implementing administrative controls it is not unusual
for an operator to organize work assignments so that a miner
exposed to a high noise level for part of his or her shift is
moved to a different job involving less noise exposure; or for an
operator to keep the miner at the same job, but reduce the time
spent on the job.  Also, where it is possible, it is not unusual
for an  operator to choose to move the work to a less noisy site.
The Secretary offered all of these traditional administrative
control measures as "fixes" for Lone Star's problem.

     As I have noted, Oglesby testified the company could have
rotated employees so that the laborers were limited to four hours
of work in the building (Tr. 55, 88); and Schorr suggested the
company could have spread the job over two, three, or even four
days, thus exposing the laborers to reduced noise levels each
day; or that the company could have spread the job over several
days and used different crew members (Tr. 227, 239).  In
addition, Schorr suggested the company simply could have done the
work outside rather than in the building (Tr. 228, 240).

     I have found the Secretary offered sufficient credible
evidence the miners were exposed to noise
levels in excess of the limits specified in the
standard.  I also find that the Secretary presented sufficient
evidence the suggested rotation of employees was capable of being
done.  At the plant there were four or five additional worker who
were classified as laborers (Tr. 120, 175).  By establishing
their availability the Secretary created a presumption that they
could have been rotated into the job.  Lone Star's argument that
Welker and Costin were better trained for the job does not
successfully rebut the presumption and overcome the Secretary's
proof.   The company is responsible for training its employees,
and the fact that some of its similarly classified employees were
inadequately trained for a particular job cannot be used as an
excuse for exposing other of its employees to a health hazard.
To allow such a defense would be to place enforcement in the
hands of the company.

     Likewise, the company's argument that the laborers doing a
particular job are entitled to higher pay under a company-union
agreement, can not be used to undermine the Secretary's case.
The company, not MSHA, has control over and responsibility for
its labor contracts, and the company cannot contractually
abrogate the health protections afforded by the Act.

     In addition to finding the Secretary presented sufficient
evidence the rotation of employees was achievable, I also find
she presented sufficient evidence the job could have been spread
over several days.  It is certain the company was in a hurry to
have the work completed and to resume full production, but
nothing in the record compels the conclusion it was
technologically or administratively impossible to do work over
two or more days.  (It might have been inconvenient for Lone Star
 very inconvenient  but it could have been done.)

     Having presented sufficient credible evidence of the
achievability of the suggested administrative controls, it was
incumbent upon the Secretary to establish the third of the
Callanan elements,   sufficient credible evidence of the
reduction in the noise level what would have been obtained had
the laborers been rotated or the job extended, and here the
Secretary failed.  She offered no credible evidence regarding the
noise level the laborers reasonably could have been expected to
be subjected to once they were removed for the job site and were
assigned to other work.  Nor did she offer credible evidence of
the noise level the laborers reasonably could have been expected
to be subjected to if to the job was extended for several days
and they were reassigned.  Without such evidence, it is
impossible to determine whether replacement or removal of the
laborers would have reduced the level of their exposure.[10]
In this regard, Starr's testimony was compelling.

          Q.  With respect to exposure to noise by splitting
     a shift in half, that would, only work to split the noise
     in half if the noise was equal over the entire shift;
     wouldn't that be true?

          A.  Yes.

          Q.  So . . . if a miner were in . . . 105 decibel
     noise for the first 15 minutes of the shift and then in
     much lower decibel noise for the rest of the shift, to
     split it in the middle really wouldn't affect the exposure
     significantly, would it?

          A.  No.

          Q.  If a worker leaves one location after four
     hours and then goes to another work location, does the
     worker's exposure to noise stop?

          A.  No.

          Q.  And depending upon where the worker went,
     could that noise exposure actually go up?

          A.  Oh, yes.

          Q.  So to know if . . . by removing one worker and
     putting another worker in is going to actually reduce
     either worker's exposure to noise, you would have to know
     their respective noise levels, wouldn't you?

          A.  That's correct.

          Q.  And if you didn't know that, you couldn't make
     an evaluation?

          A.  No.

          Q.  Would that also be true . . . with respect to
     doing a job over several days?  For example, if you did
     . . . half a job one day, went someplace else for the rest
     of that day and came back another day and did the second
     half of that job, [and] went someplace else, could you
     determine the effect of that noise level on either of
     those days without knowing what noise . . . those workers
     were in on the second half of the days that they weren't
     doing the job?

          A.  No (Tr. 280-282).

     The deficiencies in the Secretary's proof were exemplified
by Oglesby's and Schorr's testimony.  Oglesby did not know the
noise levels of areas to which Welker and Costin reasonably
could have been expected to be subjected after they were
rotated (Tr. 101).  Schorr had no knowledge of other work
the laborers might have done while the job was extended and
the noise levels that could have been expected at those
other jobs.[11]   Starr's testimony that at the plant
there are very noisy areas within a few feet of
very quiet areas meant that without testimony from the
Secretary's witnesses as to reasonable expectations regarding
work assignment areas and noise levels of those expected work
areas, implementation of administrative controls could not be
assumed to reduce the displaced miner's exposure (Tr. 282).

     The Secretary's evidentiary failing was highlighted by
Oglesby.

          Judge:  [H]ow can you know . . . that administrative
     controls are feasible when you don't know what the average
     noise the people outside are going to be exposed to?
     [I]sn't it conceivable that they could be exposed to
     noise that would be above 90 [dBA]?

          Witness:  Right.  What we would look for are
     administrative controls because everything below 90 is
     not what you want.  What you want to do is find an area
     of your facility where people could work for a period
     of time below 90[d]BA.  (Tr. 245).

     To meet her requirements under Callanan, the Secretary
should have offered credible proof of the area to which Oglesby
referred.  She did not, and for the reasons stated above, I
conclude the Secretary has failed to carry her burden of proof
by establishing the third element of the Callanan elements as it
relates to worker  rotation and job extension.

     Finally, I reject Schorr's unsupported suggestion the work
could have been done outside the mill processing building.
Dismukes testified without dispute that there were no outside
areas where the pipe could be secured properly and the refractory
material poured (Tr. 171-173).  Further, Secretary's own witness,
Oglesby, questioned whether the temperatures were warm enough in
November to do the job outside and to do it safely (Tr. 155-157).

                      CONCLUSION AND ORDER

     Because the Secretary failed to prove the existence of
feasible engineering or administrative controls to reduce the
laborers' exposure to noise, Citation No. 7284109 and Citation
No. 7284110 are VACATED.  Lone Star's contests (Docket Nos. LAKE
98-16-RM and LAKE 98-18-RM) are GRANTED.  The Secretary's civil
penalty petition (Docket No. LAKE 172-M) is DISMISSED.

                               David Barbour
                               Administrative Law Judge

Distribution:

William I. Althen, Esq., Michael T. Heenan, Esq., William K.
Doran, Esq., Heenan, Althen & Roles, 1110 Vermont Avenue, NW,
Washington, DC 20005 (Certified Mail)

Christine M. Kassak, Esq., Office of the Solicitor, U. S.
Department of Labor, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604 (Certified Mail)

nt

***FOOTNOTES***

     [1]  Section 56.5050(a) is the noise standard for surface
metal and non-metal mines.  Its goal is to limit exposure of an
operator's employees to noise over specified periods of time in
excess of specified levels of sound.  If the levels are exceeded,
the standard requires the use of feasible administrative or
engineering controls to reduce the employees' exposure.

     30 C.F.R. _ 56.5050 states:

     (a)  No employee shall be permitted an exposure to noise in
excess of that specified in the table below.  . . . .

     *        *        *        *        *        *

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                                     102
          1                                     105
                                               110
          1/4 or less                           115

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

     *        *        *        *        *        *

     (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 levels of the
table.

     [2]  "Refractory" is "A material of a very high melting
point
with properties that make it suitable for such uses as furnace
linings and kiln construction" (U.S. Department of the Interior,
A Dictionary of Mining, Mineral, and Related Terms 908 (1968)).
(The witnesses also referred to refractory as "castable".)

     [3]  All of the overhead mills grind material.  The finish
mills grind clinker into cement  (Tr. 130).

     [4]  According to Lone Star's manager of maintenance and
engineering, Fred Dismukes, the signs advise miners to limit
their time from one and three fourths hours to six hours.  They
are directed at miners who are not wearing ear plugs (Tr.
183-184, 188).

     [5]  In November 1997, in addition to Welker and Costin,
there were four or five other laborers at the plant (Tr. 120,
175).

     [6]  Oglesby began working for the agency in April 1994.
During his time with MSHA, Oglesby conducted between 60 and 70
noise surveys (Tr. 28).

     [7]  A dosimeter is an electronic device that measures noise
exposure.  The dosimeter contains a memory cell that is sensitive
to all sound.  The cell stores information relating to cumulative
noise exposure during a shift.  The cell is read by the inspector
at the end of the shift and based on the reading the inspector
determines whether the miner has been exposed to more noise then
is allowed under section 56.5050.  The dosimeter usually is
placed in the miner's shirt pocket and a microphone is attached
to the miner's collar.  The microphone is approximately six to
eight inches away from the miner's ear (Tr. 37,39, 41-42, 161).

     [8]  MSHA determines compliance with the standard based on
the percent of dos.  A dosimeter reading of over 100% indicates
an exposure of more than 90 dBA.  Because of the error factor
of a dosimeter, MSHA does not cite a violation of section 56.5050
until a dosimeter reads more than 132% (Tr. 242, 244).

     [9]  Although the language of Callanan reflects the fact the
case involved the application of an engineering control to a
noise source, there is not apparent reason why the same elements
of proof should not be applicable to administrative controls as
well.

     [10]  How the Secretary chose to elicit such evidence was
for the Secretary to decide.  She might have had her expert
conduct a noise survey at the plant.  She might have offered
testimony regarding what was reasonable to expect the laborers
to be doing when they were not working at insulting the
burner pipe and what was reasonable to expect sound levels
at those jobs to be.  She pursued neither of these
possibilities, nor did she attempt to pursue others.

     [11]  Lone Star could not be expected to remove the laborers
from the mill processing building and excuse them from work
altogether.