Noise Citation Policy for Construction. | Occupational Safety and Health Administration

Standard Number:

1926.52

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

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May 2, 1994

MEMORANDUM FOR:     H. BERRIEN ZETTLER
                   Deputy Director 
                   Directorate of Compliance Programs

FROM:               MICHAEL G. CONNORS 
                   Regional Administrator

SUBJECT:            Noise Citation Policy for Construction

Due to a marked increase in industrial hygiene construction inspections as the result of our lead emphasis program we are anticipating an increase in the number of violations of 1926.52(d)(1) for the lack of an effective hearing conservation program in construction.

The Region V Solicitor's Office has expressed a great deal of concern that such violations cannot be legally sustained due to the lack of specificity of the standard on exactly what constitutes an effective hearing conservation program. Following the Seventh Circuit Court of Appeals decision in Kropp Forge Company in 1981, the 1910.95 standard in general industry was changed to include the requirements of what would be considered an adequate hearing conservation program. Unfortunately, the construction standard was not changed.

While in possession of memos from Patricia Clark and other correspondence which states what constitutes an adequate hearing conservation program, the question still remains as to the legal sufficiency of citations for lack of a hearing conservation program. At the current time, our Solicitor's are not willing to litigate the issue.

It would appear that this may be a perfect issue for which to utilize the CF&I decision and publish what OSHA considers to be an effective program.

Please give consideration to the idea and also provide interim guidance on how we are to handle hearing conservation deficiencies in the immediate future. This may be a good topic to be discussed by the Litigation Strategy Task Force.

If you have any questions, feel free to contact Mr. John Hermanson of my staff.

DATE:               April 22, 1994

MEMORANDUM FOR:     MICHAEL CONNORS
                   Regional Administrator

FROM:               ROB MEDLOCK 
                   Area Director

SUBJECT:            OFFICIAL NOISE CITATION POLICY IN CONSTRUCTION

Due to a marked increase in IH construction inspections due to the lead emphasis program we are anticipating large numbers of violations of 1926.52(d)(1) for the lack of a hearing conservation program as required. The Solicitors office has expressed concern that such violations cannot be legally sustained due to the lack of specificity of the standard on exactly what constitutes an adequate hearing conservation program (in the construction industry). Following the 7th Circuit Court of Appeals decision in Kropp Forge Company in 1981, the 1910.95 standard in General Industry was changed to include the requirements of what would be considered an adequate hearing conservation program, this, unfortunately, was not added to the construction standard.

While we are in possession of memos from Pat Clark and Bill Wiehrdt and other correspondence which states what constitutes an adequate hearing conservation program, the question still remains as to the legal sufficiency of citations issued for lack of a hearing conservation program. We are asking for a directive conveying policy on noise violations in construction to promote consistency and to withstand legal scrutiny. One issue, for example, that needs specific direction involves the requirement for audiometric testing (i.e. after what length of exposure (1 day? 30 days? 1 year?)) are we going to require it of an employer?

While it is evident that there is language that must be added to the standard itself, at this point we request guidance as to the proper applications of this, standard until such language is added.

Please contact Joe Warner or myself if there are any questions regarding this issue. Your immediate attention in this matter will be greatly appreciated.