OSHA: An Astonishingly Representative Tale of the Regulatorily Surreal

posted at 8:41 pm on October 28, 2010 by J.E. Dyer
[ Public Officials ]   

A reader forwarded me the link to this post by the law firm Nixon Peabody on a recent OSHA decision to change its basis for enforcing the standards on hearing protection in the workplace.

The summary of the OSHA move is as follows: since 1983, OSHA has accepted the use of personal hearing protection as an adequate means of reducing noise exposure, in situations where personal protective equipment (PPE) is, in fact, adequate (that is, it meets the federal standard for protection against noise exposure).  An alternative means of reducing noise exposure is to reduce the noise itself, through equipment retooling, sound dampening, etc.  OSHA has generally declined to fine employers who did not take such noise-reduction measures, as long as the use of PPE in their workplaces provided adequate protection for workers.

But OSHA has filed notice in the Federal Register that it will no longer operate on that basis.  It will instead begin assuming that what employers should be doing is reducing noise in the workplace in preference to relying on PPE for workers.  It will consider cost to the employer as a mitigating factor only if, in its judgment, the cost would compromise an employer’s ability to remain in business.

Nixon Peabody points out that this is likely to cost a lot of businesses a lot of money – and furthermore, that it is unclear from the get-go what standard OSHA will use to determine the “feasibility” of taking material noise-reduction measures.  Cost aside, how will the standard be defined?  By industry associations?  By the practices of the largest and wealthiest companies?  Will OSHA just make something up?

But I’m still stuck back on that thing about PPE providing adequate hearing protection.  I urge everyone (seriously) to read the statement in OSHA’s Federal Register filing, dense and painful though it may be, because it acknowledges in passing, half a dozen times, that the use of PPE has been providing adequate protection.  Just to be clear, that means workers have not been exposed to noise exceeding federal standards, when PPE is their employers’ main method of protecting them.  To be even clearer, it means there is nothing bad happening here.  Workers are protected.  Hearing loss is not epidemic.  There is no problem.

But in an obviously tortured – one might almost say angst-filled – bureaucratic decision process, OSHA has in effect decided that it’s high time to shift the basis for enforcement from protecting workers’ hearing to reducing noise absolutely.  The way OSHA puts the case is that it was wrong for the hearing-protection basis for enforcement to have been implemented in 1983, because that basis takes into account cost-benefit analyses from the employer’s standpoint.  The upshot has been that the employer is allowed, in effect, to choose the lower-cost of the alternatives that will protect his workers’ hearing (that is, in most cases, PPE).

OSHA’s highly abstract point – the tenet on which it bases its whole decision – is that nothing in the original law can be construed to give employers that option.  Cost-benefit, in OSHA’s view, was not intended by the law’s language to be a factor, and therefore it shouldn’t be a consideration in regulatory execution.

OSHA doesn’t go on to explicitly argue that what the law intended was for the standard for enforcement to be absolute noise reduction.  That’s the result its new enforcement plan will produce – but OSHA’s argument is, narrowly, that the original law’s language is not a basis for considering an employer’s cost-benefit calculus in enforcement.

This is the sum-total of OSHA’s justification for shifting its basis of enforcement.  Again, no problem related to hearing protection is cited as the motivation here.  Are we all getting this?  There is no problem.  A regulatory agency has merely decided that the way it looks at enforcement has been wrong, in terms of an abstract principle, for the last 27 years, and has decided to make a change.  After the change, there will be no improvement in hearing protection for American workers.  There will be a significant increase in compliance costs for many businesses.  It’s more than conceivable – it is likely – that if Congress doesn’t intervene to provide employers some relief, the new enforcement regime will discourage investment and expansion and hurt employee retention.

This is a beautiful illustration of the hazards of government by regulatory fiat.  The many court cases and regulatory decisions cited in the OSHA filing ought to be eye-opening for Americans who haven’t been paying attention, or have never had responsible positions in business.  This is how the rules that govern us are made today:  through endless narrow citations toted up by bureaucrats who argue that Law A “didn’t say exactly ‘B’, and therefore I’m going to do ‘C’.”

Doing “C” in this case amounts to changing the purpose of the law, from protecting workers’ hearing to reducing the absolute amount of noise.  It does this not by stating the new purpose but by enforcing the law as if that’s the purpose, on a premise any six-year-old could drive a truck through:  that the law doesn’t specify taking a tangential factor into consideration.  No justification related to worker health or safety is offered for proceeding in this manner.  We the people might think the purpose of the Occupational Safety and Health Act was to protect workers, and that the measure of effectiveness for it would be whether workers’ safety and health were being protected.  But we’re not federal bureaucrats.

J.E. Dyer blogs at The Green Room, Commentary’s “contentions” and as The Optimistic Conservative.  She writes a weekly column for Patheos.

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