Compared to safety regulation, OSHA has lagged badly in health regulation. Today, OSHA’s health rulemaking docket is so far behind that it is overwhelmed. Save for a handful of substances, the vast majority of Permissible Exposure Limits (PELs) have not been updated since 1968. In the late 1980s, OSHA tried to tighten about 420 PELs without using the modern risk assessment methods the Supreme Court had already required in a 1980 decision, and these limits were struck down en masse in 1992. During the ensuing 18 years, OSHA has made scant progress on the health front:
- OSHA has issued no new health standards since 1998, save for one ordered by a court;
- In that one case, the resultant chromium standard was the weakest toxic-substance standard ever issued by a federal agency, allowing approximately 80% of all the industrial users of chromium to weaken the few controls they already had put in place. This new limit consigns roughly an additional 4% of exposed employees to lung cancer; and
- Existing standards for hundreds of known toxics are woefully inadequate. For example, rulemakings to update inadequate standards for silica and beryllium (both of which cause fatal lung disease) have been stalled since the 1980s. Another example is diacetyl (known since 2001 to cause bronchiolitis obliterans, or “popcorn lung disease” in workers exposed to this artificial butter flavoring). OSHA fruitlessly promised action on diacetyl more than 5 years ago.
Despite this huge backlog, the Obama administration is adding extra review processes that will further delay every long-overdue health regulation currently in the pipeline. In June, OSHA announced it would convene two special peer review panels per standard to review both the science and the economics before proposed standards appear in the Federal Register.