The Difference a Word Makes

The Difference a Word Makes

Last week, the U.S. Occupational Safety and Health Administration (OSHA) issued a notice in the Federal Register requesting feedback on its proposed interpretation of the word "feasible" with respect to noise exposure standards. After reading what OSHA has proposed, I can assure you that the change in interpretation is by no means insignificant.

OSHA's General Industry and Construction Occupational Noise Exposure standards require employers to use "feasible administrative or engineering controls to reduce noise to acceptable levels." Currently, the OSHA Field Operations Manual authorizes citing employers for failure to use such controls only when (1) noise levels are so high – said to border on 100 dBA when the most effective hearing protections (such as personal protection equipment) are used – that hearing protectors alone will not reliably reduce noise to acceptable levels; or (2) the costs of such controls are less than the cost of an effective hearing conservation program. In its October 19 notice of interpretation (on which OSHA is taking comment through December 20), OSHA states that "Since effective engineering and administrative controls almost always cost more than a hearing conservation program based on hearing protectors, citations are rarely issued for failure to use such controls under OSHA's current policy."

So what change is OSHA proposing? In short, OSHA will now interpret "feasible" as meaning "capable of being done," regardless of costs or benefits. OSHA "proposes to consider administrative or engineering controls economically feasible under the noise standards when the cost of these controls will not threaten the cited employer's ability to stay in business or when the threat of vitality results from the employer's having lagged behind the industry in providing safety and health protection for employees" (FR at 64219). As such, OSHA will change its enforcement policy to authorize the issuance of citations requiring the use of such controls when they are "feasible."

Here's the bottom line: OSHA expects employers to institute administrative ("modifications of work assignments to reduce employees' exposure to noise, such as rotating employees so that they work in noise areas for a short time") or engineering ("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") controls unless it can be proven that doing so would threaten the employer's ability to stay in business. This means the use of PPE will be a supplement to, not substitute for, such controls. The result? Employers may need to make modifications to their operations to be fully compliant with the law, resulting in additional costs to doing business.

Ah, the difference the interpretation of a word makes…

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