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October 19, 2010

OSHA Proposes Interpretation of Its Provisions for Feasible Administrative or Engineering Controls of Occupational Noise

The ACTA Group

On October 19, 2010, the Occupational Safety and Health Administration (OSHA) proposed to alter significantly its interpretation of the term “feasible administrative or engineering controls” as that term is used in the applicable sections of OSHA’s General Industry and Construction Occupational Noise Exposure standards. 75 Fed. Reg. 64216. Under the standard, which is codified at 29 C.F.R. Sections 1910.95(b)(1) and 1926.52(b), employers must use administrative or engineering controls, rather than personal protective equipment (PPE), to reduce noise exposures that are above acceptable levels, when such controls are feasible. This is consistent with OSHA’s long-standing approach to have employers rely on PPE as a last resort to reduce exposure to workplace hazards. In the October 19 notice, OSHA proposes to clarify that “feasible,” as used in the standard, has its ordinary meaning of “capable of being done.” OSHA intends to revise its current enforcement policy to reflect this interpretation. Comments on this interpretation are due December 20, 2010.

OSHA’s standards require that, when employees are exposed to sound exceeding the permissible level, feasible administrative or engineering controls must be utilized to reduce the sound to within that level, and if such controls are ineffective, PPE must be provided and used. Feasibility encompasses both economic and technological considerations, but OSHA’s proposed interpretation addresses only economic feasibility. Under OSHA’s current enforcement policy, OSHA issues citations for failure to use engineering and administrative controls only when hearing protectors are ineffective or the costs of such controls are less than the cost of an effective hearing conservation program. OSHA now believes that this policy is contrary to the plain meaning of the standard, and thwarts the safety and health purposes of the Occupational Safety and Health Act (OSH Act) by rarely requiring administrative and engineering controls, even though these controls are affordable and generally more effective than hearing protectors in reducing noise exposure. Accordingly, OSHA proposes in the October 19 Federal Register to consider administrative or engineering controls economically feasible when the cost of implementing such controls will not threaten the employer’s ability to remain in business, or if such a threat to viability results from the employer’s failure to meet industry safety and health standards. This is a far lower standard than the one OSHA has historically followed.

Decisions in several high profile court cases on what is economically feasible for purpose of the noise abatement regulations appear to be driving OSHA’s new interpretation. These cases, OSHA believes, support its decision not to require cost-benefit analysis under the Section 1910.95(b)(1) and Section 1926.52(b) requirements. In fact, OSHA believes cost-benefit analyses would be contrary to the plain meaning of feasibility and thwart the safety and health purposes of the OSH Act and the standards. Therefore, 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 to viability results from the employer’s having lagged behind the industry in providing safety and health protection for employees.

OSHA is, in effect, compelling employers to rely more heavily on engineering and administrative measures rather than PPE to reduce noise exposure. These types of controls typically are more costly to implement than purchasing and requiring the use of PPE. Engineering controls involve 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. Administrative controls involve modifications of work assignments to reduce employees’ exposure to noise, such as rotating employees so that they work in noisy areas for a short time. Those employers who have relied upon PPE or a hearing conservation program rather than engineering or administrative controls may now be forced to re-evaluate their decision and, in many instances, likely will be forced to implement more costly engineering and/or administrative controls.