OSHA Standard-Setting: Past Glory, Present Reality and Future Hope

Abstract

John Howard

Among the duties delegated to by Congress to the Secretary of Labor in the Occupational Safety and Health (OSH) Act of 1970 is the authority to adopt standards. The majority of the current toxic substance standards adopted by the Occupational Safety and Health Administration (OSHA) were promulgated in 1970s. Forty years later, most of the permissible exposure limits for toxic agents adopted by OSHA are now considered to be grossly obsolete. By the 1980s, the number of standards being adopted by OSHA had decreased. Since the late 1980s, efforts by the OSHA to jumpstart the standards-setting process have not been successful.

A number of theories have been suggested as causes for the slow pace of OSHA standard-setting such as lack of political will, insufficient internal resources at OSHA, overly-complex standards, excessive administrative review processes, and accretion of rulemaking requirements by Congress, the President and the courts which has straight-jacketed the rulemaking process. These additional rulemaking requirements have significantly lengthened the time needed for OSHA to adopt a new toxic substance standard.

Over the four decades that OSHA has been in existence, legal and policy commentators have proposed a various proposals to speed up the process. Among these proposals are those that emphasize a political solution, suggest that more internal resources be directed in the OSHA budget to standard-setting, ask that OSHA adopt less complex standards, streamline the review processes, obtain regulatory relief specifically for OSHA standard-setting, and consider approaches to regulation than single substance standards and other proposals such as adopting international consensus standards and reforming the Occupational Safety and Health Act of 1970 to streamline OSHA standards-setting. How the Obama Administration solves the slow pace of standards-setting problem may well determine the effectiveness of OSHA for future generations of workers who rely on the Act for protection from workplace hazards.