In October 2010, the Occupational Safety and Health Administration (OSHA) published a proposed interpretation of the phrase "feasible administrative or engineering controls" found in 29 CFR §1926.52 of the construction industry regulations. The interpretation's purpose was to clarify the meaning of the phrase with respect to employers' obligations under occupational noise exposure regulations.
Recently, in an action that can only be described as unexpected, OSHA withdrew its proposed interpretation and announced future efforts with respect to preventing occupational hearing loss.
What is "feasible"?
OSHA's construction noise regulation requires use of feasible administrative or engineering controls to reduce worker exposures below established levels; if such controls do not reduce noise sufficiently, employers must provide personal protective equipment (PPE). The issue of what is meant by "feasible" has challenged employers attempting to comply with the regulation.
Engineering controls modify equipment, processes or materials to eliminate or reduce worker exposure to hazards. Administrative controls modify worker assignments through methods such as job rotation to reduce or eliminate exposure.
Earlier OSHA enforcement policy allowed the use of PPE and a hearing conservation program in lieu of engineering or administrative controls when PPE is less costly than the controls. However, OSHA's proposed interpretation analyzed "feasibility" in terms of economic feasibility and concluded an administrative or engineering control is feasible under the noise standard if implementing such controls "will not threaten the employer's ability to remain in business."
OSHA noted in the proposed regulation its interpretation of feasibility was consistent with traditional hierarchies of controls that promote administrative and engineering controls as the primary methods of limiting worker noise exposures. According to OSHA, an analysis of the costs of such controls is relevant only if the costs threaten the employer's ability to stay in business.
OSHA rejected a cost-benefit analytical approach to noise hazards that could be reduced or eliminated by PPE because such an approach would remove engineering and administrative controls as options in light of the low cost of PPE. According to the agency, such an approach ultimately would alter the plain meaning of the regulatory language that requires initial use of engineering or administrative controls.
Business groups anticipated enormous compliance costs under the proposed interpretation based on the near limitless economic expenditures untethered feasible engineering or administrative controls would require.
Despite withdrawing the proposed interpretation, OSHA has stated it remains concerned about hearing loss cases reported by workers and plans to:
NRCA expects to participate in OSHA's stakeholder meeting and continue efforts through the Coalition for Workplace Safety, a group of employers and associations, to encourage solutions to occupational hearing loss hazards that are effective, clear and grounded in scientific testing and analysis.
Harry Dietz is NRCA's director of risk management.