OSHA: It’s Not As Easy Making Standards As You Might Think!

Many people have commented about how slow OSHA is to issue new standards or to update the old ones. As has been discussed on this blog before, most of the current OSHA PELs were adopted under the 1970 Occupational Safety and Health Act (OSH Act) from the 1968 ACGIH TLV values. With a few exceptions, the majority of the PELs today are unchanged since they were first adopted even though a considerable amount of chemical safety data has been collected since then and the ACGIH TLVs have been regularly updated.

• Recently the Government Accountability Office (GAO) issued a report “Workplace Safety and Health – Multiple Challenges Lengthen OSHA’s Standard Setting, April 2012” asking why. The GOA found that it took OSHA from 15 months to 19 years, average 7 years to pass a standard over the period from 1981 to 2010. OSHA as with other government agencies has a fairly long procedure to issue standards requiring giving notice and opportunity for interested parties to comment before issuing a standard as required under the Administrative Procedure Act. However the GAO found that there were several reason why OSHA took so much longer than other agencies.

• Courts generally defer to the expertise of government agencies and will only overturn a regulation if it is found to be ‘arbitrary and capricious,’ an easy standard to defend against anyone trying to get a regulation overturned. OSHA in contrast is held to a much more difficult standard, the “substantial evidence in the record considered as a whole.” OSHA has had several major standards overturned in the courts (Benzene standard US Supreme Court, 1980) and the PEL update (11th Cir. 1992) and has since been rather reluctant to issue any new PELs absent overwhelming support.

• OSHA is required by the US Supreme Court and Executive Order to understand how any new standard would operate in any workplace that it applies to. OSHA’s mandate of every workplace in the US is very broad; and so OSHA, or more often OSHA’s contractors typically spend a lot time assessing both technological and economic feasibility before issuing new standards.

• OSHA has not worked as closely with NIOSH, and other agencies as it could have done. NIOSH’s role is to perform occupational safety research and for a while OSHA was duplicating this effort.

• Unlike some other agencies such as the EPA and section 112 of the Clean Air Act, OSHA is not required to periodically update its standards; and so they languish steadily graying. The report also said that OSHA officials consider that it reflects poorly on the agency when OSHA issuing citations to employers that are following current industry consensus standards, but are being cited because the OSHA standard is obsolete.

OSHA also has the authority under the OSH Act (sec. 6) to issue emergency standards for 6 months, but has declined to do so since 1983 because of the evidence needed to meet the statutory requirements.

The GAO recommends that OSHA work more closely with other government agencies, especially NIOSH, and OSHA is working more closely with them than before. Another suggestion is the change the evidential standard that OSHA must reach to issue a standard, but there is a concomitant concern to lower quality regulation. This blog supports the idea of changing the evidential standard or using consensus standards such as ACGIH, but also requiring periodic review of the standards as assurance of regulation quality. Such a change would require modification of the OSH Act and thus Congressional action.