Hope OSHA Listens to Employers on Its Noisome Noise Proposal

Employers now have access to affordable and extremely effective technology to protect employees from excessive workplace noise. But it’s JUST NOT ENOUGH, OSHA shouts, regulatorily.

As a Nixon-Peabody Alert puts it, “OSHA announces a radical new and enormously costly interpretation of occupational noise standards“:

With little fanfare, the federal Occupational Safety and Health Administration (“OSHA”) has quietly announced that it is considering a radical change to its interpretation of an employer’s obligations concerning employee exposure to occupational noise. The announcement may have been quiet, but the impacts will be loud. If adopted in their current form, the new obligations will be substantial and the potential cost to employers is likely to be immense.

The law firm is sending out warning to employers in light of the Oct. 19 Federal Register notice by OSHA, “Interpretation of OSHA’s Provisions for Feasible Administrative or Engineering Controls of Occupational Noise.”

The International Safety Equipment Association describes the proposal, “OSHA prepares to lower the boom on workplace noise“:

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.

Dave Ippolito, a former OSHA compliance officer, commented in response to a blog post at the Center for Progressive Reform, supporters of the ever-expanding regulatory state. Ippolito knows what he’s talking about:

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 employer to hire 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.

(Our emphasis, and we fixed a few typos.)

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