CAOHC | UPDATE: Volume 3 - Issue 1

OSHA Policies on Noise Control
Alice Suter, Ph.D.

Many of you may know that the U.S. Department of Labor/OSHA has recently made and then withdrawn an interesting policy change.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 (TWAs) 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 28 years although voices from the professional community, labor unions, and several organizations protested.

The result of OSHA’s enforcement policy has been that the development and use of engineering noise control in this country has been virtually stagnant, 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, and any attempts to regulate or require labeling of noisy machines have died with it. That’s not the case in Europe, Australia, and other parts of the world, where legislation and directives have provided incentive to manufacturers to make quieter equipment and employers to use it.

One of the arguments against the 1983 policy change is that OHSA 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 U.S.). 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 was extended to March 21st 2011.

CAOHC, along with NHCA and ASHA 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. NHCA later followed up with detailed reasons for this support, including the points that workers are continuing to lose their hearing despite compliance with the hearing conservation amendment, that workers often fail to wear their protectors or use them improperly, that hearing protectors can have an adverse effect on communication and the perception of warning signals, and that 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. It is important to note that the feasibility issue refers to reducing time-weighted averages to 90dB TWA, not all noise exposures over 90 dBA.

Within a few weeks of its publication, there were objections from major business associations, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, that the policy change was not needed and that it would have an adverse effect on jobs. These groups maintained that employees can be effectively protected with hearing protectors, and other elements of a hearing conservation program.

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 of comments, the executive order and Congressional input, 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. The date of the meeting has not yet been determined.

Although the deadline of March 21st is past, OSHA officials have stated that the docket would continue to remain open and that interested parties could still send in comments. It would be particularly helpful to OSHA to learn about how some companies have used noise control in efficient and inexpensive ways. Comments on these issues may be sent to the OSHA Docket Office, Docket no. OSHA 2010-0032, U.S. Dept. Labor, 200 Constitution Ave. NW, Washington DC 20210.

Further information:
OSHA’s Federal Register notice: 10-19-10 https://www.osha.gov
OSHA’s Federal Register notice: 1-19-11 https://www.osha.gov

Alice H. Suter, Ph.D.
Alice Suter has worked in the area of noise effects and hearing conservation for more than 30 years and is the editor and author of the CAOHC Hearing Conservation Manual 4th edition. She has an M.S. in education of the deaf and a Ph.D. in audiology. She has been influential in noise criteria development, regulation, and public policy, first at the U.S. EPA’s Office of Noise Abatement and later at OSHA. At the EPA she participated in the development of criteria for noise effects, including the psychological, extra-auditory physiological, performance, and communication effects, in addition to the effects of noise on hearing. As Senior Scientist and Manager of the Noise Standard at OSHA, she was principal author of the hearing conservation amendment to the noise standard.

She may be contacted at ahsuter@comcast.net or 503-206-7770.

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	UPDATE: Volume 3 - Issue 1 - Spring 2011

printer-friendly version OSHA Policies on Noise Control Alice Suter, Ph.D. Many of you may know that the U.S. Department of Labor/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 (TWAs) 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 28 years although voices from the professional community, labor unions, and several organizations protested. The result of OSHA’s enforcement policy has been that the development and use of engineering noise control in this country has been virtually stagnant, 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, and any attempts to regulate or require labeling of noisy machines have died with it. That’s not the case in Europe, Australia, and other parts of the world, where legislation and directives have provided incentive to manufacturers to make quieter equipment and employers to use it. One of the arguments against the 1983 policy change is that OHSA 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 U.S.). 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 was extended to March 21st 2011. CAOHC, along with NHCA and ASHA 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. NHCA later followed up with detailed reasons for this support, including the points that workers are continuing to lose their hearing despite compliance with the hearing conservation amendment, that workers often fail to wear their protectors or use them improperly, that hearing protectors can have an adverse effect on communication and the perception of warning signals, and that 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. It is important to note that the feasibility issue refers to reducing time-weighted averages to 90dB TWA, not all noise exposures over 90 dBA. Within a few weeks of its publication, there were objections from major business associations, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, that the policy change was not needed and that it would have an adverse effect on jobs. These groups maintained that employees can be effectively protected with hearing protectors, and other elements of a hearing conservation program. 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 of comments, the executive order and Congressional input, 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. The date of the meeting has not yet been determined. Although the deadline of March 21st is past, OSHA officials have stated that the docket would continue to remain open and that interested parties could still send in comments. It would be particularly helpful to OSHA to learn about how some companies have used noise control in efficient and inexpensive ways. Comments on these issues may be sent to the OSHA Docket Office, Docket no. OSHA 2010-0032, U.S. Dept. Labor, 200 Constitution Ave. NW, Washington DC 20210. Further information: OSHA’s Federal Register notice: 10-19-10 https://www.osha.gov OSHA’s Federal Register notice: 1-19-11 https://www.osha.gov Alice H. Suter, Ph.D. Alice Suter has worked in the area of noise effects and hearing conservation for more than 30 years and is the editor and author of the CAOHC Hearing Conservation Manual 4th edition. She has an M.S. in education of the deaf and a Ph.D. in audiology. She has been influential in noise criteria development, regulation, and public policy, first at the U.S. EPA’s Office of Noise Abatement and later at OSHA. At the EPA she participated in the development of criteria for noise effects, including the psychological, extra-auditory physiological, performance, and communication effects, in addition to the effects of noise on hearing. As Senior Scientist and Manager of the Noise Standard at OSHA, she was principal author of the hearing conservation amendment to the noise standard. She may be contacted at ahsuter@comcast.net or 503-206-7770.