Posted by: theoptimisticconservative | October 29, 2010

OSHA: An Astonishingly Representative Tale of the Regulatorily Surreal

Reader Ritchie Emmons 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 Hot Air’s Green Room and Commentary’s “contentions.”  She writes a weekly column for Patheos.


  1. […] This post was mentioned on Twitter by Great Lakes Enviro, J.E. Dyer. J.E. Dyer said: OSHA: An Astonishingly Representative Tale of the Regulatorily Surreal : My latest at TOC on regulatory insanity… […]

  2. “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.”

    And what constitutes an employer’s ability to stay in business? The employer will be able to stay in business, but only if one-third of the workers are let go?

    This terrible regulation reminds me of the law that was recently in the news regarding the ability of the federal govt’s ability to regulate navigable waterways. Some Democrat wanted to take the word “navigable” out, which would presumably have given the federal govt the authority to regulate ANY water in the US. Ponds, puddles, whatever. It seems that any chance liberals have to consolidate power into the realm of govt, like a moth to flame, they instinctively go right for it. Increasingly to our detriment.

  3. I just read this a minute ago from Mark Steyn. Along the same lines as this post here by J.E.

  4. I honestly don’t usually use other people’s comment sections to plug my own blog, but it’s easier to do that here than it is to distill a post I did at the beginning of October about the inevitable nature of bureaucracy, which is to seek regulatory perfection at the cost of actual effectiveness:

    • Plug away, Bookworm. Everybody, click on Bookworm’s trackback and see the original post on the fine-honed lunacy of the FDA. It’s worth the clicks.

      I don’t know why the trackback went to the spam queue — my apologies that I just got to it to clean it out. I’m really popular with the Greek-language spammers this month, for some reason.

      • Thanks! As I’m currently entangled in my own technological kerfuffle, I am remarkably sympathetic to your travails.

    • love that word “inevitable” quite useful to employ when one’s argument is a bit bare of fact or common sense.

      there’s nary a thing in your post to support inevitability. stick with “tendency”, Bookworm, until you garner some more proofs.

  5. […] which is a destructive search for regulatory perfection.  The Optimistic Conservative now provides a perfect example of the point I was trying to make. Share With […]

  6. Hello Optimist,

    Excellent post, but with an unfortunate history, so let me introduce you to two concepts :

    1- Quango : for Quasi Autonomous Government Agency, which is what OSHA seems to have become, taking a superflous decision for no purposes except the mental masturbation of some bureaucrats.
    2- Job Loss : It is likely that if this stuff is implemented in the US, most noise intensive industry will prefer to create jobs somewhere were people are not that lunatic … Good to see the Feds working hard for unemployement

  7. After reading your post, I have two questions:

    1) Is there an Obama political appointee in charge of OSHA? If so, is he/she another one of those socialist minded progressive types? (Read Stanley Kurtz’s scholarly book: Radical In Chief)

    2) Why are they trying to cripple more industries with onerous regulations that make it harder to compete price wise overseas and all the repercussions that necessarily would follow the cost outlays required?

  8. Lily, as far as I know, Obama has made the usual presidential appointments at OSHA. (I think the list of executive appointments is over 3300 now.)

    My own conclusions about this OSHA move is that it’s all about the main point discussed in the Federal Register filing. I’m not convinced it’s just OSHA thinking along these lines. It may be a trend throughout the Obama executive.

    That main point is that regulatory enforcement isn’t required, by the language of the original law, to take cost-benefit for employers into account in its choice of an enforcement standard. The OSHA filing seems really annoyed that the agency ever fell into that practice, back in 1983, and goes all over the map in pointing out at great length that it wasn’t necessary.

    This sounds very, very ominous for business, to my still-hearing ears. If I were businesses and their lawyers, I would be all over this. If OSHA can repudiate considering cost-benefit for employers in this matter, then every other agency of government can do the same in ALL matters. This looks like a stealth bomb to me.

  9. One would think that in a recession, the government wouldn’t want to raise taxes, that government wouldn’t want to increase health care costs for employees, that government wouldn’t want to slam the regulatory boot down harder on the neck of businesses.

    One would be wrong.

  10. This OSHA approach is entirely consistent with what the EPA is wreaking on industrial plants with a range of rules that will result in plant closings, moving operations overseas and at a minimum raising the cost of production high enough that any future expansions will be elsewhere.
    The entire non-transportation energy econony is being driven to natural gas, with the current promise that shale gas will keep prices reasonable – until they then turn on the last remaining source of allowed and efficient energy.

    Intentional or simply from ignorance and arrogance, this unchecked bureaucracy will put us all in soup lines.

  11. This stuff goes way back. The legislation that establishes federal agencies and their subsequent regulatory output is engineered to protect the interests of the existing corporatist establishment. The USDA is a good example and its story can be found here: Currently it’s obvious that a similar situation exists in the Pelosi-Reid health care fiasco, the various bail-outs in the financial and insurance sectors, and, in fact, practically any bureaucratic activity.

  12. I would also in this connection mention CPSIA, the Consumer Protection Safety Improvement Act (or something similar) which is such a bad law that I honestly think that it was passed as a stalking horse for future lefty legislation such as stimulus packages and health care takeovers; the theory being that if CPSIA could be enacted into the law of the land, any damned thing could.

    (I’ve posted before under my name, Pete Madsen, but have a gravatar for pfsm, my four initials.)

  13. This short post at the Weekly Standard about a study addressing how foundations go awry, wasting money and aiming for goals antithetical to their founders’ dreams, seems apropos:

    It’s always the bureaucratic element, isn’t it?

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