The federal Occupational Safety and Health Administration (“OSHA”) is proposing a substantial change in its approach to regulating employee exposure to occupational noise. The agency’s aggressive, new interpretation of the existing occupational noise rule could lead to substantial compliance costs for manufacturers.

As the existing rule (found at 29 C.F.R. §§ 1910.95(b)(1) and 1926.52(b)) is written, when employees are exposed to sound exceeding the permissible level, feasible administrative or engineering controls must be utilized to reduce the sound to within the permissible level, and if such controls are ineffective, personal protective equipment must be provided and used. Under the agency’s current interpretation of the rule, however, OSHA issues citations for failure to use engineering and administrative controls only when hearing protectors are ineffective or the costs of such controls are less than the cost of an effective hearing conservation program. In practice, this means that companies have been able to comply with the rule by providing relatively inexpensive hearing protectors to its employees up front, and forgoing more expensive overhauls of machinery or personnel policies.

OSHA has now determined that its current interpretation is contrary to the plain meaning of the text of the rule, and thwarts the safety and health purposes of the Occupational Safety and Health Act by rarely requiring administrative and engineering controls even though, in the agency’s words, these controls are affordable and generally more effective than hearing protectors in reducing noise exposure. As a result, OSHA is proposing a new interpretation of the phrase “feasible administrative or engineering controls.”

Under the agency’s proposed interpretation, OSHA would consider administrative or engineering controls economically feasible when the cost of implementing such controls will not threaten the employer’s ability to remain in business, or if the employer’s inability to afford these controls results from having lagged behind the industry in providing safety or health protection for employees. In other words, rather than allowing employers to comply with the rule by providing hearing protection as a matter of first resort, employers will now have to either implement appropriate administrative or engineering controls to comply or demonstrate why hearing protection is warranted as a matter of last resort because those controls are too costly.

The proposed rule raises the specter of drastically higher compliance costs and begs a host of questions. How will OSHA determine whether administrative or engineering controls threaten an employer’s viability as a going concern? What industry and safety health standards will the agency use to determine whether an employer must implement the applicable controls? How would a company document that implementing certain controls would threaten its ability to continue in business?

The new interpretation would apply to all companies that are subject to OSHA’s General Industry and Construction Occupational Noise Exposure standards. The agency is accepting comments on the new interpretation until March 20, 2011.