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

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.