C H A M B E R O F C O M M E R C E O F T H E U N I T E D S T A T E S O F A M E R I C A R A N D E L K. J O H N S O N S E N I O R V I C E P R E S I D E N T L A B O R, I M M I G R A T I O N & E M P L O Y E E B E N E F I T S 1 6 1 5 H S T R E E T, N. W. W A S H I N G T O N, D. C. 2 0 0 6 2 2 0 2 / 4 6-5 4 4 8 M A R C D. F R E E D M A N E X E C. D I R E C T O R, L A B O R L A W P O L I C Y L A B O R, I M M I G R A T I O N & E M P L O Y E E B E N E F I T S OSHA Docket Office Docket No. OSHA 2010 002 U.S. Department of Labor Room N-2625 200 Constitution Avenue, N.W. Washington, DC 20210 January 18, 2011 By electronic submission: http://www.regulations.gov RE: Docket No. OSHA 2010 002; Interpretation of OSHA s Provisions for Feasible Administrative or Engineering Controls of Occupational Noise, 75 Federal Register, 64216, October 19, 2010 To the Docket: The U.S. Chamber of Commerce, the world s largest business federation with over three million members, represents businesses of all sizes and in every market sector and throughout the United States. Many of these will be directly affected by OSHA s proposed interpretation of feasibility under the noise exposure standards. The Chamber will be submitting comprehensive comments consistent with the March 21 deadline. However, because this action by OSHA would be so disruptive to employers current noise reduction programs, and would impose extraordinary costs, we feel compelled to submit these preliminary comments to make OSHA aware of just how ill-conceived we believe this action to be. More extended analysis and data will be included in our full comments. OSHA s existing noise standard requires that, where noise levels exceed certain thresholds, feasible administrative or engineering controls shall be utilized, and, where such controls do not reduce noise to acceptable levels, personal protective equipment shall be provided and used to do so. 29 C.F.R. 1910.95(b)(1). Administrative controls include employee rotation and other adjustments in work assignments to minimize exposure. Engineering controls include quieter machinery and modified processes. Personal protective equipment (PPE) embraces earplugs and other hearing protectors. For over 25 years, OSHA has interpreted this provision to require use of engineering and administrative controls only if available PPE was ineffective in reducing workplace noise to acceptable levels, or if such controls could be implemented for a lower cost than personal protective equipment. Therefore, under current law, PPE alone is often sufficient to comply with OSHA noise standards. On October 19, 2010, OSHA proposed to reverse this interpretation and to require employers to implement engineering and administrative controls to control noise exposures, even
if PPE would be effective, so long as those controls would not, in essence, bankrupt the employer. 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. (75 Fed. Reg. at 64217, emphasis added). OSHA s entire Federal Register notice announcing this action was dedicated to establishing the agency s authority to interpret the term feasible in the way it is proposing. Yet legitimate questions remain about OSHA s ability to proceed with this interpretation. The noise exposure standard is one of the early regulations that were adopted through the Section 6(a) process it was brought in as an existing federal standard after the agency was created under the Occupational Safety and Health Act. OSHA provides an extended legal and case law analysis to support its contention that it has the authority to interpret feasibility in a way that will no longer take into account considerations of costs and benefits. 1 But, because these standards were adopted in their pre-existing form, they were not subject to the questions of feasibility that attach to standards promulgated by OSHA under Section 6 (b)(5). Quite simply, OSHA is confusing factors that apply to Section 6(b)(5) standards with Section 6(a) standards. Indeed, Section 6(b)(5) requires the Agency to engage in extensive rulemaking procedures, and make detailed factual findings regarding significant risk, feasibility, and cost-effectiveness prior to promulgating a standard. These procedural safeguards provide employers with some assurance that Section 6(b)(5) standards, even if onerous, are based on sound science and otherwise justified. OSHA engaged in none of these procedures in promulgating the noise standard, and thus none of the procedural safeguards for employers were present. Applying Section 6(b)(5) feasibility requirements retroactively to the noise standard would thus be particularly unjustified. Assuming arguendo that OSHA does have the authority to impose this interpretation of feasibility, the more relevant question is whether the agency should. Here the unequivocal answer is that it should not. Nowhere in its notice has OSHA offered any indication of why this action is warranted or what data it is supported. Whatever the plain meaning may appear to be to OSHA now, the proposal, if adopted, would reverse an interpretation consistently applied for more than 25 years, since 1984 three years after the Supreme Court decision on which OSHA now relies to support its view that this interpretation is plainly wrong. 75 Fed. Reg. at 64219. There has been no change in the law since OSHA created its enforcement policy, nor does OSHA point to any changed circumstances justifying a new approach. OSHA does not suggest that the number or severity hearing loss cases have increased, or provide any other information from which one could conclude that its longstanding approach is ineffective or unwarranted. Indeed, hearing loss injuries have been decreasing since they were added to the OSHA 00 logs, see Figures 1 and 2 below. OSHA cites no data at all regarding hearing loss injuries. 1 OSHA has concluded that engaging in cost-benefit analysis under 1910.95(b)(1) and 1926.52(b) is contrary to the plain meaning of feasibility and thwarts the safety and health purposes of the OSH Act and the standard. 75 Fed. Reg. at 64219. 2
1,000 29,000 27,000 25,000 2,000 21,000 19,000 17,000 15,000 Number Hearing Loss Injuries in the Private Sector 19,500 2004 2005 2006 2007 2008 2009 Number of cases (thousands) Source: Bureau of Labor Statistics Figure 1 Hearing Loss Injuries have been declining steadily since being added to OSHA 00 Log form..5 2.5.2 Hearing Loss Incidence Rate Private Sector 2.6 2.4 2. 2.2 2 1.5 1 2004 2005 2006 2007 2008 2009 Incidence rate Injuries per 10,000 full time employees Source: Bureau of Labor Statistics Figure 2 Hearing Loss Injury Incidence Rates have been declining steadily since being added to the OSHA 00 Log form. OSHA s admitted change of interpretation literally reversing the priority between engineering controls and personal protective equipment is arbitrary because it reflects no consideration at all for the practical consequences of the change. Instead of being a limiting modifier engineering and administrative controls would only have to be used if they are feasible OSHA now proposes to make feasible an expanding modifier engineering and administrative controls must be used if they will not threaten the viability of the business. 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. OSHA offers no justification for, or reveals even any awareness of, these consequences of its action. It certainly points to nothing in the OSH Act that supports it. Such a dramatic change will have significant impacts which will only be magnified under current economic conditions, dramatically increasing compliance costs while providing no evidence whatsoever that the prior approach fails to adequately protect worker safety. Forcing employers to rework their approaches to protecting their employees will needlessly cause them to expend significant resources for no improvement in protection. Early responses from our members and other companies are making clear how expensive and disruptive these changes will be. OSHA s new policy will not allow a company to justify a failure to institute engineering controls based on any adverse impact short of the company s viability as a whole. Therefore, for example, OSHA could require engineering controls that would not be economically viable for a particular plant or operation if the expense involved would not threaten the overall viability of the company. One early response we received was from a large, regional grocery store chain which also maintains bakeries, dairies, and distribution locations, among other locations that would have noise exposure situations. It described the difficulties they would have trying to implement engineering controls to reduce noise exposure associated with their large refrigeration units which are already isolated, but require routine maintenance and servicing: these motors cannot easily be covered or insulated to reduce noise as they quickly overheat. Having a motor down can be extremely costly especially if product drops below a certain temperature and then has to be discarded. Same is true with these systems in our manufacturing facilities where refrigeration or freezers exist. They also described a conflict between using acoustical tiles and sanitation concerns: This new policy will impact all of our food processing facilities. In the food industry we cannot always use the obvious noise reduction controls (acoustical tiles, acoustical foams, etc.) due to food safety issues. We are required to use equipment and related fixtures that can be washed down and sanitized with specific cleaning chemicals. Hence, we cannot use noise reduction material or equipment that absorbs water or has the likelihood to harbor bacteria. Finally, they described the overall impact this new interpretation would have on their ability to service their customers and continue their business: Having to shut down a distribution location or reduce the volume of refrigerated area to address this noise in a refrigeration motor room is impractical. If it came to this, it would significantly hinder our ability to adequately service our customers. Poor customer service leads to reduced shoppers and companies close low volume, poor performing stores. Having too few stores in a district or region cripples efficiency to the point that the company may be forced to leave the area, region or even state. Finally, the manner in which OSHA has sought to impose this new interpretation is also troubling. Publishing this for comment in the Federal Register is not the same as proposing this under OSHA s rulemaking procedures. None of the protections of that process apply. For instance, OSHA is not obligated to conduct, and accordingly has not conducted, any analysis of the impact this will have on small businesses. Indeed, this publication has not even been reviewed 4
by the Office of Information and Regulatory Affairs (OIRA), the administration s checkpoint for all regulatory actions. Nor is OSHA under any obligation to take into account the comments it will receive. In fact OSHA could proceed to finalize this on March 22 without any consequence. The impression created is that OSHA is using this approach to avoid various obligations and extra steps that would be required under a traditional rulemaking and would reveal the severe impacts and difficulties of this new interpretation. The Chamber adamantly opposes OSHA s proposed new interpretation of the term feasible as it applies to engineering and administrative controls. OSHA has not demonstrated in any way why this reversal of current policy is necessary or justified, and implementing this will impose dramatic costs and disruptions on employers who are already providing appropriate protection to their employees from exposure to noise. OSHA s new interpretation will require implementation of any possible administrative and engineering controls needed to reduce noise to specified levels, without regard to the ability of PPE to reduce exposure to the same levels. Under OSHA s new policy, PPE will become a last resort, rather than an acceptable primary means to comply with the noise standards. Accordingly, companies that are now successfully protecting their employees through PPE will be required to implement engineering controls, presumably including new quieter machinery, if such machinery is available and would not bankrupt the company, or administrative controls which will only reduce efficiency and increase labor costs. We strongly urge OSHA to withdraw this proposal and abandon any other efforts to implement this change. Sincerely, Randel Johnson Senior Vice President Marc Freedman Executive Director, Labor Law 5