The Occupational Safety and Health Act permits states to administer their own workplace safety and health programs, as long as the state program adopts standards at least as stringent as the federal requirements of the Act. Half the states now administer their own programs. Both North and South Carolina have state-run programs which, as a general rule, adopt and enforce the federally-promulgated regulations in the same manner as the federal Occupational Safety and Health Administration (OSHA). However, some differences in enforcement exist, and reliance on the federal standards may subject unsuspecting employers in the Carolinas to citations or fines from their respective state agency. Occupational noise exposure is one area in which reliance on federal enforcement methods could trap unwary employers.
OSHA reports that, from October 1996 to September 1997, 107 employers in the Carolinas were issued 252 citations for violations of the Occupational Noise Exposure Standard contained in 29 C.F.R. § 1910.95, for a total of $43,224.85 in penalties actually paid. While the federally-compiled statistics do not indicate which particular paragraphs of § 1910.95 were violated, they show that occupational noise exposure is a problem for employers in both Carolinas. To avoid similar citations and penalties, employers should be aware of the Occupational Noise Exposure Standard's requirements and its relationship to 29 C.F.R. § 1904, OSHA's general record-keeping provisions.
Section 1910.95 requires an employer to conduct noise sampling if it has reason to believe that any of its employees may be exposed to occupational noise which equals or exceeds an 8 hour time-weighted average (TWA) of 85 decibels. This level is known as the "action level." If any employee, as determined by representative sampling, is exposed to occupational noise of at least the "action level," the employer must develop and implement a hearing conservation program. The hearing conservation program must include:
- periodic representative sampling of noise exposure, not less frequently than yearly, but potentially more frequently as workplace conditions change;
- a training program for affected employees, including training on the permanence of hearing loss;
- in the eventof exposure equal to or in excess of an 8 hour TWA of 90 decibels ("permissible exposure limit" or PEL), engineering controls designed to reduce employee exposure to noise;
- hearing protection and fit-testing of hearing protection;
- baseline audiograms for affected employees conducted within six months of initial exposure to noise at or above the action level; and
- annual audiograms for affected employees.
Depending on the recorded levels, work-related hearing loss may be recordable on the employer's OSHA 200 log. Occupational hearing loss is measured by comparing the employee's original audiogram with any subsequent audiogram. A hearing loss of 10 decibels or more on any of three specific octave bands is known as a "standard threshold shift" (STS). In states which have federally-administered OSHA programs, employers are not required to record an STS of 10 decibels. Rather, two Letters of Interpretation issued by OSHA provide that federally-administered programs only require recording of standard threshold shifts of 25 decibels or more -- a clear deviation from the Occupational Noise Exposure Standard.
The state-administered programs of North and South Carolina, however, follow the Standard, rather than the Letters of Interpretation. Therefore, employers in the Carolinas are required to record an STS of 10 decibels or more on their OSHA 200 logs. Usually, this hearing loss will be recordable on the OSHA 200 log as an "illness." On the other hand, if the employee's STS is attributable to a single incident, such as an explosion, the STS is recordable as an "injury" on the OSHA 200 log. In addition, employers are required to complete an OSHA No. 101, a supplementary record of injury or illness (or equivalent Worker's Compensation form), for each STS.
Failure to properly record an employee's STS of 10 decibels or more may result in a citation, which could range from $100 to $7000 per violation. With an awareness of the discrepancies in the federal and state enforcement of the Noise Exposure Standard and careful recording of standard threshold shifts, employers in the Carolinas can avoid these preventable penalties.