A New Round in the OSHA-OSHRC Fight Over Noise Exposure

by Matt Shudtz

October 19, 2010

Today, OSHA released a “proposed interpretation” of its 39-year old noise exposure standards. Talk about making up for lost time. All joking aside, this move truly is a positive step for American workers, and may demonstrate a path of action that could help OSHA address hazards in addition to excessive noise. 

Over the years, the federal courts and the Occupational Safety and Health Review Commission (OSHRC) have muddied the waters of many OSHA regulations, enforcement policies, and rulemaking procedures. Their sometimes contradictory, sometimes ambiguous decisions have left OSHA struggling to write new standards in a cumbersome rulemaking process and unable to stringently enforce existing standards—or even employers’ fundamental obligations under the General Duty Clause. The story of the noise exposure standards, as told in today’s Federal Register notice, is a prime example.

OSHA first promulgated the noise exposure standards in 1971, under its authority to adopt already-established federal health and safety standards. These rules OSHA adopted required employers to use "feasible" administrative or engineering controls if their employees were exposed to sound exceeding specified levels. (Administrative controls might be rotating shifts at high-noise tasks; engineering controls might involve isolating machinery or workers.) If those controls failed to reduce the sound below the specified levels, employers were to provide employees with earmuffs, earplugs, or other personal protective equipment. In 1975, OSHA issued interpretive guidance explaining that the rules meant exactly what they said: employers must use administrative and engineering controls to reduce noise hazards, and PPE must be used as a supplement if the other controls were insufficient.

OSHA started writing citations based on this interpretation, employers challenged the citations, and that is when the Review Commission and the federal courts started mucking things up. A series of decisions on noise exposure cases in the early 1980s, entwined with the Supreme Court’s decisions in the Cotton Dust case and Martin v. OSHRC, ended with OSHA and the Review Commission in what amounted to a stalemate over what it meant for OSHA to require “feasible” administrative and engineering controls. The Review Commission had adopted an interpretation of “feasible” that allowed employers to choose the least-cost method for eliminating noise hazards, whether it be PPE or other controls. Obviously, foam earplugs or earmuffs would fit the bill more often than not, the result being that employers could shift the burden of eliminating hazards to their employees. OSHA never agreed with that interpretation, but adopted an enforcement policy that acquiesced to a least-cost method for determining whether employers complied with the noise standards.

At the heart of this problem is a longstanding struggle between OSHA and the Review Commission to establish primacy in interpreting the OSH Act. Congress created the Review Commission to be an independent panel as a compromise at a time when some legislators feared that the new regulatory agencies might somehow infringe on due process if they could both cite regulated parties and then rule on the regulated parties’ appeals. However, further appeal to the federal courts was always an option for aggrieved parties and the history of EPA and other regulatory agencies shows that their administrative review process is generally fair to all parties. Perhaps this history played a part in the Supreme Court’s Martin v. OSHRC decision, in which it held that the Review Commission should defer to the Secretary of Labor’s (OSHA’s) interpretation of OSHA standards, so long as the interpretations are reasonable.

OSHA’s proposed interpretation of the noise exposure standards is plainly reasonable. It rests on the standard meaning of the term “feasible”—that an employer could find in any dictionary—rather than a meaning that might allow idiosyncratic value judgments about costs and benefits of protecting workers’ health.

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.

As an ex OSHA compliance officer, supervisor, and OSHA Area Director I will simply say that literal enforcement of this approach, without careful consideration could put many Americans out of work. For example, when a machine shop has an ambient noise level of say 95 dBA and also has an effective hearing conservation program consisting of hearing protection, training and audiograms, apparently it will now bear the additional cost to reduce that level to below 90 using engineering or administrative means. In almost ALL CASES, the need for the hearing conservation program will remain since it is the rare instance where enginering controls can bring such noise levels down to below 85 where no hearing conservation program is necessary. This is especially true when the high ambient noise level results from the additive effects of scores of machines, compressed air, electric motors etc -each with its own set of unique noise emitting characteristics and noise elimination solutions. Administrative controls can be effective but may require the empoloyer to higher more skilled people to do the same job and/or have skilled people do non-skilled work for part of the day or simply make what was a one day job into a two day job. This would put that employer at such a competitive disadvantage as to effectively put it out of business. My other thought is that technological and economic feasibility are often (not always) inextricably partnered and I do not see how the agency can simply declare it is looking at one aspect and not the other? To sum it up, if this goes through, it will be an enourmous hammer that must wielded carefully.
— Dave Ippolito
Dave - thanks for the comment. I'd just add that employers who do right by adopting administrative controls, as required by the regulations, will only be at a competitive disadvantage if OSHA fails to enforce the noise standards against scofflaw employers. This administration has shown a penchant for hitting violators with maximum penalties, which should level the playing field for the employers who follow the law.
— Matt Shudtz
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Matthew Shudtz, J.D., is the Executive Director of the Center for Progressive Reform. He joined CPR in 2006 as policy analyst, after graduating law school with a certificate in environmental law.

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