CARNATION COMPANY, Petitioner, v. SECRETARY OF LABOR, and Occupational Safety and Health Review Commission, Respondents

In this enforcement proceeding, Carnation petitions to review the validity of an agency finding that Carnation committed a nonserious violation of 29 U.S.C. § 654 (a)(2), by failing to comply with the Secretary’s occupational noise standard, 29 C.F.R. 1910.95.

Carnation manufactures metal cans in its Waupun, Wisconsin facility. An industrial hygienist with the Occupational Safety and Health Administration (OSHA) conducted an inspection of the Waupun facility. At three random locations in the press room of the plant the inspector found readings indicating that the machines subjected the employees to sound levels in excess of the standard’s allowable limits. Carnation was then using, and desires to continue to rely upon, individual protective gear.

Carnation admits that the three machines in its Waupun plant produce noise in excess of the maximum allowable by the standard. Indeed, it is undisputed that the noise level is excessive throughout the entire plant. Carnation nonetheless argues two main reasons why it should not be found in violation of § 1910.95.

First, Carnation asserts that by presenting evidence regarding the economic feasibility of lowering the sound levels only…