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OSHA Succumbs to Noisy Public Comment

Sigel_Gabrielle_COLORBy Gabrielle Sigel


On January 19, 2011, in response to vociferous objection from the regulated community, OSHA withdrew its proposed official interpretation of the term "feasible administrative or engineering controls" as used in its General Industry and Construction Occupational Noise Exposure standards.   The standards state that employers must use administrative or engineering controls, rather than personal protective equipment (PPE), to reduce noise exposures that are above acceptable levels when such controls are  "feasible," i.e., "capable of being done," even if the cost of such controls are much more than the effective use of PPE, such as ear plugs.  Notably, OSHA withdrew this proposed interpretation before the close of public comments in March 2011.

In the Federal Register on October 19, 2010, OSHA had proposed to amend its current enforcement policy to clarify that by "feasible," the noise standards mean "capable of being done." (Interpretation of OSHA's Provisions for Feasible Administrative or Engineering Controls of Occupational Noise, 75 Fed. Reg. 64216 (proposed 1o/19/2010).  OSHA further stated that employers could not use cost as a reason not to implement administrative and engineering controls unless the costs were so high as to threaten the employer's ability to remain in business.”  (Id. at 64217.)

In the October 2010 publication, OSHA also admitted that since 1983, its enforcement policy "has allowed employers to rely on a hearing conservation program based on PPE if such a program reduces noise exposures to acceptable levels and is less costly than administrative and engineering controls."  (Id.)  OSHA said that it wanted to change its former policy because  (1) the policy was contrary to the plain meaning of the standards;  and (2) thwarts the purposes of the OSH Act because engineering and administrative controls are "generally more effective than hearing protectors in reducing noise exposure."  (Id.)

The regulated community strongly objected to OSHA's legal conclusion that the law allowed this interpretation, to OSHA's regulatory authority and procedural approach, and to the policy and factual support for the new interpretation.  For example, in its preliminary comments in response to the October proposal, the U.S. Chamber of Commerce stated, "OSHA has not demonstrated in any way why this reversal of current policy is necessary or justified, and implementing this will impose dramatic costs and disruptions on employers who are already providing appropriate protection to their employees from exposure to noise.” (U.S. Chamber of Commerce public comment, 1/18/2011).  After publication of the proposed interpretation, Assistant Secretary of Labor for Occupational Safety and Health David Michaels met with Senators Olympia Snowe (R-ME) and Joseph Lieberman (I-CT), co-chairs of the Senate Task Force on Manufacturing, who expressed concern about OSHA's proposal.

In its January 19, 2011 withdrawal of this proposed interpretation, Assistant Secretary  Michaels stated,  "We are sensitive to the possible costs associated with improving worker protection and have decided to suspend work on this proposed modification while we study other approaches to abating workplace noise hazards."  OSHA said that it would hold additional meetings and outreach on the issue.  Senators Snowe and Lieberman praised OSHA's decision.