OSHA Withdraws Proposed Reinterpretation Of Noise Standard After Industry Criticism

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The Labor Department's Occupational Safety and Health Administration announced Jan. 19 it is withdrawing its proposed reinterpretation of the occupational noise exposure standard, a proposal that has drawn criticism from industry groups because of its potential cost.

David Michaels, assistant secretary of labor for occupational safety and health, said OSHA is looking at other avenues to address noise in the workplace.

“Hearing loss caused by excessive noise levels remains a serious occupational health problem in this country,” Michaels said in a written statement. “However, it is clear from the concerns raised about this proposal that addressing this problem requires much more public outreach and many more resources than we had originally anticipated. 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.”

Under the proposal, published Oct. 19, 2010, an employer would have to reduce noise exposure in its workplace by using administrative or engineering controls, rather than by providing personal protective equipment, as long as the cost of doing so does not threaten the employer's ability to stay in business (75 Fed. Reg. 64,216) (200 DLR A-3, 10/18/10).

The proposed reinterpretation would have clarified the term “feasible administrative or engineering controls” to mean that it does not threaten the employer's ability to stay in business. OSHA had previously relied on the U.S. Supreme Court's 1981 decision in American Textile Manufacturers Institute Inc. v. Donovan, which held that the word “feasible” within the Occupational Safety and Health Act means “capable of being done,” regardless of costs or benefits.

In explaining its decision to rescind the proposal, OSHA said it would review the comments submitted in response to the Federal Register notice announcing the reinterpretation, hold a stakeholder meeting within the next several months on preventing workplace hearing loss, consult with the National Institute for Occupational Safety and Health and the National Academy of Engineering on the issue, and initiate a “robust” outreach and compliance assistance effort to provide information and guidance “on the many inexpensive, effective engineering controls for dangerous noise levels.”

OSHA said Michaels met earlier this month with the offices of Sens. Olympia Snowe (R-Maine) and Joseph Lieberman (I-Conn.), members of the Senate Committee on Small Business and Entrepreneurship, in response to a letter from the senators concerning the proposal.

Industry Hails Announcement.

Joe Trauger, vice president of human resource policy at the National Association of Manufacturers, said he was pleased OSHA withdrew its proposal.

“Obviously they recognized that the process was flawed from the beginning, and the costs were going to be in the billions of dollars,” Trauger told BNA Jan. 19. “They've acknowledged that they need to do more public outreach, and unfortunately they didn't do that from the start. But it's always good when an agency takes a look at what they're proposing and takes into consideration the folks who are going to have to implement it.”

OSHA said, however, that it did not withdraw the proposed interpretation because of excessive costs to industry.

“OSHA believes that the proposed interpretation would not have imposed overly burdensome costs to businesses,” Jason Surbey, an agency spokesman, wrote to BNA in an e-mail. “The agency's concern, however, was that explaining the policy change and fully addressing the concerns that have been raised about this interpretation would have required much more work and resources on OSHA's part than earlier anticipated.”

OSHA failed to provide data showing hearing loss has steadily declined since 2004 and did not take into account the use of personal listening devices, a major contributor to hearing loss, said Marc Freedman, executive director of labor policy at the U.S. Chamber of Commerce.

“We're pleased to see that OSHA has reevaluated moving forward with this ill-conceived proposal,” Freedman told BNA in an e-mail. “The agency would have received extensive and unequivocal comments from employers opposing this move if they had continued with the comment period. That the agency did not anticipate this reaction reveals the lack of planning and analysis that went into this action.”

He also said the chamber “will be interested to see what OSHA promotes as 'inexpensive' engineering controls, and whether OSHA uses this as a way to impose engineering controls on employers who are already providing effective noise protection through other means.”

Labor Disappointed.

Representatives from labor groups expressed disappointment in the decision.

“It's very disappointing to hear about the retrenchment on that issue because it seemed like such a commonsense approach,” Peter Dooley, also a consultant with Laborsafe and former official in the United Auto Workers health and safety department, said at a Jan. 19 meeting of the National Advisory Committee on Occupational Safety and Health. “It's such a tremendous problem, and it's just gotten worse over time.”

Michaels, who addressed the advisory committee meeting, responded to Dooley that he shared his concern.

“There's lots of reasons to control noise, the one approach we tried this time we may have to pull back on at this time because it may not be the most effective,” Michaels said.

Eric Frumin, safety and health director at Change to Win, told BNA Jan. 19 that OSHA has identified many inexpensive engineering controls, and withdrawal of the proposed interpretation offers employers a good opportunity to reduce dangerous noise levels by improving maintenance of machinery.

Michael Silverstein, assistant director for the Washington Division of Occupational Safety and Health, said the OSHA proposal came too suddenly.

“I think it might make sense to compare the way that OSHA went about dealing with the residential fall protection,” he said. “[W]hen OSHA decided to go about the residential fall protection issue, a great deal of time went into working with stakeholders. The noise protection issue was announced a bit more abruptly, so it does make some sense that OSHA would take some additional time to work with stakeholders.”

By Greg Hellman and Stephen Lee

The proposed interpretation OSHA withdrew may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=scrm-8d9vvy.

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