Presidential Appointee at SBA Maligns OSHA's Industrial Noise Proposal; Claims Ear Plugs "Solve" the Problem

by Sidney Shapiro

April 15, 2011

Congress charged the Office of Advocacy of the U.S. Small Business Administration (SBA) with the job of representing the interests of small business before regulatory agencies, such as the Occupational Safety and Health Administration (OSHA). As an agency of the federal government, it has an obligation to taxpayers to get its facts straight before it speaks. Lately, it has ignored this basic obligation, most notably sponsoring a study that used flawed methodology to claim that regulations impose $1.75 trillion in costs every year.

Now, Dr. Winslow Sargeant, Chief Counsel for Advocacy at the SBA, has upped his attack on OSHA’s efforts to update its noise regulation, making assertions that are highly misleading and at times simply wrong. In an interview last week with the Phoenix Business Journal, Sargeant claimed:

The OSHA rule was a solution to a problem that had already been solved. Basically, this was a noise abatement rule. At some factories, there's noise. The machine makes noise. There's already a solution -- ear plugs, earmuffs that workers would wear. That solved the problem. OSHA came along and said, well, that may solve the problem. But we think companies should buy new equipment with lower noise figures. So now we've gone from a solution of $10 or so to millions of dollars to solve the same problem.

Dr. Sargeant, a presidential appointee, is not arguing that he thinks reducing machine noise isn't worth the cost; he's actually asserting that there is no safety difference whatsoever between using ear plugs and reducing equipment noise. That's not true.

Since 2004, the Bureau of Labor Statistics has reported that nearly 125,000 workers have suffered significant, permanent hearing loss. OSHA’s noise rule, issued in 1971, requires employers to use either engineering or administrative controls to reduce the exposure of workers to noise, and if these options are not feasible, the employer can use personal protective equipment such as earmuffs or earplugs. Engineering controls involve modifications to plant, equipment, processes or materials that reduce the sound intensity at the source, by substituting quieter machines and processes, or by isolating the machine or its operator. Administrative controls involve modifications of work assignments to reduce employees' exposure to noise, such as rotating employees so that they work in noisy areas for a short time. 

Employers have long complained about OSHA’s preference for engineering and administrative protections because personal protective equipment, as Dr. Sargeant notes, is less expensive. The problem is that personal protective equipment is also substantially less protective. For this reason, European Union countries, Australia and New Zealand employ engineering and administrative noise controls as the primary way to reduce noise exposure. Moreover, of 25 industrial countries with noise controls, the United States ties India for the weakest protection standard (90-dBA permissible exposure limit). 

The reason for instituting engineering and administrative controls is simple: workers are not adequately protected from noise by personal protective equipment. Studies demonstrate that when workers are protected only by personal protective equipment, they continue to lose their hearing. This occurs because workers resist the use of personal protective equipment (it is uncomfortable for one thing, and workers take out the equipment so that they can confer with each other and their bosses) and these devices do not always provide as much protection as engineering and administrative solutions (because, among other reasons, the exposure to noise is too loud and overwhelms the equipment and the equipment is improperly used). In addition, personal protection equipment creates a safety hazard: workers cannot hear warning sounds and other safety communication (See NIOSH's comments for more on the research in many of these areas). 

In 1971, OSHA required the use of noise reduction equipment and administrative controls as the primary ways to reduce noise exposure, but this requirement was thrown into doubt by a 1982 court decision that suggested OSHA might lack the statutory authority to do this. OSHA reacted by allowing employers to use personal protective equipment as the primary protection. In 1994, another court decision clarified that OSHA has the statutory authority to require engineering and administrative controls as the primary protections, but OSHA nevertheless continued to allow employers to hand out personal protective equipment, even though workers were not adequately protected.  In 2010, OSHA sought to return to its original requirement. OSHA then announced in January that it was holding the noise proposal in order to conduct more public outreach on the issue, but in the process rightly maintained that "Hearing loss caused by excessive noise levels remains a serious occupational health problem in this country." That's despite the widespread availability of earplugs, of course.

So, it is misleading to suggest, as Dr. Sargeant does, that all is well, and OSHA for some frivolous reason is now seeking to add new requirements, which are unnecessary. Moreover, for good measure, Dr. Sargeant threw in a joking veiled threat at fellow public servants in his interview:

I convened a roundtable with OSHA and invited the regulators from OSHA to come to hear what small businesses had to say about this rule. We assured OSHA that they wouldn’t have to fear for life and limb, because we run the meeting.

Industry regularly misstates or misrepresents what OSHA is doing, but they are not a government agency. If SBA wants to argue that the scientific evidence actually does not back up OSHA’s preference for engineering and administrative controls, let's hear it. But to ignore the evidence and make jokes about harming OSHA’s leaders smacks of shilling for industry. That's not what our tax dollars are supposed to be working for.

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Sidney A. Shapiro holds the Fletcher Chair in Administrative Law at the Wake Forest University School of Law and is the Associate Dean for Research and Development. He is a member of the board of directors of the Center for Progressive Reform.

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