Many of you know by now that the U.S. Department of Labor/Occupational Safety & Health Administration (OSHA) has recently made and then withdrawn an interesting policy change. Back in 1983, just after OSHA had issued the final version of the hearing conservation amendment, the Agency sent out a notice to its inspectors not to enforce the noise standard’s requirements for feasible engineering and administrative controls until workers’ time-weighted average exposure levels exceeded 100 dBA, and even then only if the other elements of the hearing conservation program, specifically hearing protectors, did not adequately protect them. This policy stayed in effect for 27 years although voices from ASHA, NHCA, labor unions, and other organizations protested. The result has been that the use of engineering noise control in this country has virtually disappeared, at least in the workplace. The situation in the general environment isn’t much better because EPA’s Office of Noise Abatement has been closed since 1982.
One of the arguments against the 1983 policy change is that OSHA implemented it without going through the public rule-making process, so its legality has been questioned. Another argument is that this policy is contrary to all other OSHA health and safety regulations, where engineering and administrative controls are the primary methods of hazard reduction. During this period, however, there were some major court cases, the outcome of which required OSHA inspectors to perform cost-benefit assessments if they issued citations for lack of noise control. So while the other industrialized nations have developed quieter products and processes, the American workplace remains noisy. In Europe and Australia noise control technology has greatly outpaced the U.S., as has the protection of workers against noise-induced hearing loss. Some American manufacturers market quiet products in Europe and noisy ones at home. The OSHA noise standard lags behind those of the rest of the world in other respects. Out of some 25 nations, there are only 2 that use the OSHA 90-dBA permissible exposure limit (India and the U.S.) and four that use the 5-dB exchange rate (Brazil, Colombia, Israel, and the US). Most others have adopted a limit of 85 dBA or below and the more protective 3-dBA exchange rate.
In more recent years additional litigation has taken place, going as far as the U.S. Supreme Court, which struck down the necessity of a cost-benefit analysis. Consequently, on October 19th of last year, OSHA published in the Federal Register the intention of changing its current policy by redefining the word “feasible” as it relates to the noise standard as “capable of being done.” The Agency did say that if a noise control remedy threatened an employer’s viability (the capacity to remain in business), it would not be considered feasible. OSHA encouraged the public to comment on the proposed change with a deadline of Dec. 20th 2010, which has since been extended to March 21st 2011.
ASHA, along with NHCA and Council for Accreditation in Occupational Hearing Conservation (CAOHC), signed a coalition letter to Dr. David Michaels, the OSHA Director, supporting the recent policy change and requesting that the Agency continue to make improvements to the existing regulation. We later followed up with detailed reasons for our support, including the facts that workers are continuing to lose their hearing despite alleged compliance with the hearing conservation amendment, they often fail to wear their protectors or use them improperly, hearing protectors can have an adverse effect on communication and the perception of warning signals, and engineering controls can actually be less expensive in many situations because they are one-time rather than annual expenses. Also, there are many options available to OSHA to ease any resulting burdens on employers by giving long compliance times, exempting small businesses, and providing technical assistance.
Within a few weeks of its publication, there was a firestorm of objection from major business associations, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, claiming that the policy change was not needed and that it would have an adverse effect on jobs. These groups maintained that employees were sufficiently protected with hearing protectors and other elements of the hearing conservation program. They conveyed the impression to their members that OSHA would crack down on them immediately (an impossibility), that the policy applied to workers exposed to noise levels over 90 dBA, when in fact it’s TWAs (averages not levels, resulting in far fewer overexposed workers). They also maintained that this was something new rather than something that had been an integral part of the noise standard since 1971!
Also around this time President Obama issued an executive order directing the agencies to reexamine the need for regulations, and certain members of Congress took a negative interest in OSHA’s proposed policy change. As a result, OSHA withdrew its policy on January 19, 2011, stating that this process required “much more public outreach” and that they needed to examine other alternatives. They would, however, review all comments that arrived by March 21st and some time after that hold a stakeholders meeting.
ASHA members should consider submitting comments on these issues to OSHA. Mail three copies to the OSHA Docket Office, Docket no. OSHA 2010-0032, U.S. Dept. Labor, 200 Constitution Ave. NW, Washington DC 20210.
- NHCA’s press releases about the proposed policy change
- Response from National Institute for Occupational Safety and Health (NIOSH)
Dr. Alice Suter has been active in the field of occupational hearing conservation for 40 years, during which time she worked at the U.S. EPA, OSHA, and NIOSH, and more recently as a consultant. At OSHA she was a senior scientist and manager of the noise standard. Although she is a strong proponent of hearing loss prevention programs, she believes that these programs must include measures to control noise at the source for them to be effective.