OSHA’s re-interpretation of “feasible” when applied to noise controls is getting some attention, and battle lines are being drawn along predictable lines. Supporters think it’s high time the agency brings its enforcement policies up to date. Opponents see it as one more regulatory mandate that will cost American jobs.
NAM jumped on quickly, calling OSHA “tone deaf” in its Shopfloor blog. The National Heariung Conservation Association, which has an Alliance with OSHA on hearing protection, issued a statement supporting the action. NHCA must have had an inside track, because its web site dates its annnouncement three days before the Federal Register notice was published.
Law firm Nixon Peabody is telling clients “the new obligations would be substantial and the potential cost to employers is immense.” This got picked up by conservative blogger J.E. Dyer who calls it “an astonishingly representative tale of the regulatory surreal.” Her post on Hot Air claims OSHA is attacking a problem that doesn’t exist. She writes: ”But I’m still stuck back on that thing about PPE providing adequate hearing protection. I urge everyone (seriously) to read the statement in OSHA’s Federal Register filing, dense and painful though it may be, because it acknowledges in passing, half a dozen times, that the use of PPE has been providing adequate protection. Just to be clear, that means workers have not been exposed to noise exceeding federal standards, when PPE is their employers’ main method of protecting them.”
Blogging for the Center for Progressive Reform at CPRBlog, analyst Matt Shudtz calls OSHA’s move a “positive step for American workers, [that] may demonstrate a path of action that could help OSHA address hazards in addition to excessive noise.” Clearly he’s thinking of other ways this interpretation could be used by OSHA to get around what it sees as wrongheaded Occupational Safety and Health Review Commission decisions:
“Hopefully what OSHA has done today foreshadows a broader effort to clarify some of the other murky waters created by the Review Commission and the federal courts. For instance, OSHA could interpret the General Duty Clause as requiring employers to assess and mitigate hazards posed by air contaminants, with reference to exposure limits developed by NIOSH, ACGIH, AIHA, or other governmental bodies. OSHA might also use an interpretive rule to develop a policy regarding significant risk determinations that would reduce the analytical burdens the agency has put on itself since the failed 1989 Permissible Exposure Limits update.”
Dave Ippolito, who’s had experience as an OSHA compliance official, takes a different view. His comment to the CPRBlog post points out that a machine shop with an ambient noise level of 95 dB and an effective hearing conservation program (HCP) will have to install controls to bring the noise to below 90 dB, and in almost all cases will still have to have the HCP because it’s rare that noise can be reduced below the 85 dB action level. “This would put that employer at such a competitive disadvantage as to effectively put it out of business,” he writes.