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In announcing the withdrawal, David Michaels, assistant secretary of labor for occupational safety and health, said, "It is clear from the concerns raised about this proposal that addressing this problem requires much more public outreach and many more resources than we had originally anticipated." He said the agency would study other approaches to abate workplace noise hazards.

Many commenters cited increased costs and other hardships associated with the revised interpretation. The U.S. Chamber of Commerce said it would be disruptive to employers' current noise reduction programs and would impose extraordinary costs and called the action ill-conceived.

The Chamber said the change would reverse the priority between engineering controls and personal protective equipment, which it said was "arbitrary because it reflects no consideration at all for the practical consequences of the change." It specifically cited the potential cost of the change.

"Under OSHA's new standard, a company's only defense against using a 'possible' engineering control would be that implementing it would threaten the company's very 'ability to remain in business.' In the case of a large company, therefore, OSHA could conceivably force the company to expend tens or hundreds of millions of dollars to upgrade machinery in a facility, or even force the closure of the facility altogether, so long as the company itself could survive," the Chamber wrote.

Others expressed similar concerns. "I think this regulation is going way too far," wrote Tim Manherz of TAS Commercial Concrete. "How do you determine whether the hearing loss is because of work activities or if it is due to afterwork activities? We would have to test every individual at the time they are hired and monitor that annually. Who pays for that?"

Mark Garvin, president of the Tree Care Industry Association, said the 2,000 member companies provide utility vegetation management services to maintain reliable electrical service throughout the country.

"OSHA's proposed action would put all these employers and their employees out of business quite literally," Garvin wrote. "OSHA's proposed action imposes such steep economic penalties that utility rates would rise dramatically and residential tree care costs would force homeowners or non-professionals to attempt to perform the work themselves, endangering amateurs and putting employers and their professional employees out of business."

In proposing the change, OSHA had said nearly 125,000 workers have suffered significant, permanent hearing loss since 2004, with more than 22,000 cases in 2008 alone.

Michaels said for the time being, the agency will:

• Conduct a thorough review of comments that were submitted.
• Hold a stakeholder meeting on preventing occupational hearing loss to get a variety of viewpoints.
• Consult with experts from the National Institute for Occupational Safety and Health and the National Academy of Engineering.
• Institute a robust outreach and compliance assistance effort to provide enhanced technical information and guidance on the many inexpensive, effective engineering controls for dangerous noise levels.

Read more at the WorkersComp Forum homepage.

February 10, 2011

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