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.

If you’re an employer with a noisy workplace, OSHA says you have to keep the sound level below a certain level, or provide your workers with PPE such as ear plugs or earmuffs.  There is a condition in the regulations that says the administrative or engineering controls used to limit noise must be feasible, which OSHA has long interpreted as meaning less costly than an effective hearing conservation program using monitoring, testing, training and PPE.  Now OSHA wants to revise that policy, interpreting feasible to mean “capable of being done” and setting a new threshold for affordability.

An October 19 Federal Register notice declares OSHA’s intent to revise its enforcement policy in line with this new interpretation.  The notice reads like a legal pleading, in which the agency discusses contradictory interpretations of feasibility in decisions of the Occupational Safety and Health Review Commission and various federal courts.  On one hand there’s the cost-benefit argument, that says the health benefit of a control must justify the cost of putting it in place.  On the other hand is the “can it be done” interpretation of feasibility, which argues that the OSH Act requires engineering or administrative controls if they can be implemented without putting a company out of business.  OSHA now proposes to use the latter interpretation to enforce the noise regulations:  administrative or engineering controls are economically feasible if they don’t cost so much that they threaten the employer’s long-term viability and competitiveness.  In addition, OSHA will reject a claim of economic hardship if it’s caused by a company’s failure to meet industry safety and health standards.  In other words, if the noise controls are going to cost too much because an employer hasn’t put a hearing conservation program in place, too bad.  

This proposal comes at a time of change for the hearing protector business.  EPA is expected to release its revised NRR rating and labeling rules by the end of the year.  Manufacturers are developing new products for hearing protection and noise monitoring, some of which were on display at the recent National Safety Council expo in San Diego. 

The OSHA proposal is likely to come under fire from employer groups, whose constituents could face considerable costs to retrofit noise-producing machinery.  They may also portray the proposal as a threat to jobs, as employers seek to limit noise exposure to workers by automating processes.  Even some safety directors may chafe at OSHA’s decision to limit their flexibility in protecting workers’ hearing.  OSHA will defend its action as legally justified and within its mandate, but may have a harder time selling the idea that noise-reducing controls are always a better solution than individual hearing protectors.  There was no discussion in the notice of how the new enforcement policy will enhance hearing conservation.  Twice within the last several years,  ISEA petitioned OSHA to reduce permissible levels of noise from 90 to 85 dB, to bring its regulations in line with noise regulation in most of the rest of the world.  The agency took no action on our request.  OSHA will accept comments on the proposal through December 20.

The second issue of ISEA’s Protection Update newsletter, published in January 2001, carried the first column of real-world stories about people whose lives were saved or who avoided serious injuries by using various types of safety equipment from ISEA member companies.  Over the decade since then, all but one of the 40 Protection Updates, which now is published as a quarterly supplement to EHS Today magazine, have carried the popular ”Safety Equipment Works for You” feature.

Now you can check out all of the nearly 90 tales of safety equipment’s life-protecting values we have told over the years in one place on ISEA’s Web site.  Stories report on accidents involving eye/face, fall, hand, head and respiratory protection, high-visibility and protective apparel, and thermal imaging cameras.  You also can read the 22 “Very Best of Safety Equipment Works for You” stories in the October EHS Today, which should already be on your desks.  We hope that you not only will find these testimonials to be interesting and informative, but that they also will serve as a valuable tool in your safety training toolbox.

Joe Walker, Editor, Protection Update, International Safety Equipment Association

The message from OSHA assistant secretary David Michaels is clear:  companies need to focus on prevention of worker injury and illness through comprehensive safety and health management programs.  OSHA and its stakeholders need to find new and creative ways to have a bigger impact, he told the audience at the National Safety Council’s Congress and Expo in San Diego on October 5.   He wants OSHA inspectors to see a culture of safety when they go to a workplace, evidence that employers are finding and fixing hzards, not just reacting to incidents. 

Dr. Michaels cited a success story – a company that fixed its bad safety habits by going to OSHA a few years ago and using its compliance assistance resources to set up an injury and illness prevention program.  He appealed to everyone in the audience for support.  “When we issue an injury and illness prevention program proposal, we’ll hear that the business community opposes it,” he said, calling on his listeners to pressure their trade associations to support reform. 

In a panel discussion that was part of the NSC program, Dr. Michaels,  NIOSH director John Howard and MSHA chief Joseph Main agreed that business and regulators need better predictors of the success of a safety and health program.  Dr. Howard  suggested that companies and government do a good job of recording injuries, but not work-related illness.  Dr. Michaels said the data that’s collected does a poor job of showing how well or poorly a company is performing.   He noted that because contractors are not included in a facility’s incident report, the day after workers were killed in a refinery explosion the facility still had a zero-fatality record.

Michaels also reported that OSHA is about to announce its approach to updating permissible exposure limited (PELs) to hazardous chemicals.  There was a noticable absence of the “new sheriff in town” rhetoric that accompanied Michaels’ appointment, possibly because the audience is well aware of the highly publicized enforcement actions at OSHA.  Her did ask how many in the audience realized that OSHA was involved in the Gulf oil spill cleanup, and expressed satisfaction at the number of hands that were raised.  It was a safety crowd, after all.