Last fall, when OSHA announced a plan to freshly interpret the meaning of “feasible” controls in its hearing protection standard, it must have known conservative employer groups would come back hard. They did, and they won the first round.

Alternate description

LIUNA General President
Terry O’Sullivan

On January 19, David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, scratched OSHA’s reinterpretation plan. “It is clear from the concerns raised about this proposal that addressing [work-related hearing loss] requires much more public outreach and many more resources than we had originally anticipated.” Conceding sensitivity “to the possible costs associated with improving worker protection,” Michaels said OSHA would “study other approaches to abating workplace noise hazards.

“This issue is vital to Laborers,” says LIUNA General President Terry O’Sullivan, noting that a recent evaluation of 76 members who worked highway construction in New Jersey – one of many studies with similar results – found almost half displaying irreversible hearing loss. Of those aged 50 and over, 75 percent needed referrals to an audiologist. OSHA reports that since 2004, nearly 125,000 workers have suffered significant, permanent hearing loss. In the most recent data available (2008), the Bureau of Labor Statistics reported 22,000 hearing loss cases.

Rather than require employers to implement engineering and administrative noise controls that are “capable of being done” – the meaning of “feasibility” in all other regulated realms of occupational safety and health – the agency will leave in place its revised 1983 hearing protection standard and compliance directive. Together, these rules require employers to issue personal protective equipment (PPE – ear plugs or ear muffs) if workplace noise exposure exceeds a time-weighted average of 85 dB (90 dB in construction), but they impose no obligation to adopt administrative or engineering controls if exposure is below 100 dB.

The window between 85 and 100 dB is critical. According to the National Institute for Occupational Safety and Health (NIOSH), 85 dB is the threshold at which permanent hearing damage occurs. And 100 dB is 32 times louder. NIOSH and the National Hearing Conservation Association, as well as the BLS data, all point out that PPE is not adequate to protect workers against permanent hearing loss. In announcing its intent to revert to the meaning of “feasibility” that was part of the original 1971 standard, OSHA was intent on requiring adequate protection.

With the reinterpretation effort now scuttled, the agency will pursue other avenues. These include:

  • Reviewing comments submitted in regard to the “feasibility” reinterpretation plan
  • Holding a series of stakeholder meetings
  • Consulting experts at NIOSH and the National Academy of Engineering
  • Initiating robust compliance assistance to encourage use of available, inexpensive, effective engineering controls

Critics of OSHA’s flip-flop wonder if opposition from the National Association of Manufacturers (NAM) and its political allies in the newly Republican-controlled House of Representatives drove the decision. Though it used the authority only once – to overturn OSHA’s ergonomics standard in 2001 – the Congressional Review Act allows Congress to overturn regulations set by federal agencies. Congress also sets OSHA’s annual budget.

NAM led reaction to the reinterpretation proposal, pitting workers’ hearing against their jobs. According to a NAM vice president, Joe Trauger, the rule change would “have a massive impact in terms of lost jobs, stifling hiring, slowing down hiring.&rdquo Referring to the noise control issue in a comment to Inside OSHA Online, a House Republican aide said, “It’s certainly an example of [an OSHA regulation] that [the new Republican majority would] look at going forward.”

The National Hearing Conservation Association strongly backed OSHA’s proposed reinterpretation in comments submitted December 14. OSHA encourages further comments, and the American Industrial Hygiene Association, LIUNA, other unions and other professional associations are expected to express their views.

“The proposed policy change would have been an important step forward in protecting the hearing of construction workers in the United States,” says O’Sullivan. Looking for a silver lining, he adds, “This debate has refocused attention on hearing protection. PPE simply is not as effective as other controls. Comments show that advances in technology over the past 25 years present a variety of inexpensive, feasible alternatives. If OSHA adopts an aggressive outreach and assistance program, many recalcitrant employers may realize that they can do a lot more for their workers than they now think.”

Hearing loss protection has long been a top priority of the LHSFNA. In 2000, it convened a national conference in an effort to jumpstart adoption of a construction noise control standard, and OSH Division staff played leading roles in the development of ANSI’s A10 standard. A Noise Control Guide on the Fund’s website details administrative and engineering options that will reduce noise exposure in construction. A variety of hearing-related posters and publications are available through the Fund’s online publications catalogue.

[Steve Clark]