ACGIH Threshold Limit Values

“Now it’s war" against the ACGIH

Before succumbing to cancer in February 2007, Congressman Charlie Norwood (R-GA) was known as a “spirited legislator” who didn’t hide behind fancy words to express his opinions.  The Occupational Safety and Health Administration (OSHA) was a frequent target of his criticism; Congressman Norwood often asserted the agency was the epitome of "regulatory excess."  In more recent years, the Congressman directed some of his disdain toward the American Conference of Governmental Industrial Hygienists (ACGIH) and their non-binding threshold limit values (TLVs) for workplace exposures.  In April 2006, Congressman Charlie Norwood pronounced:

"the ACGIH is going to stop writing the laws of this land, if it’s the last thing I do on earth…I’m going to come after them…and now it’s war!” [1]

This case study will describe the history and role of the ACGIH in workplace health and safety protections, and explore the reasons behind the Congressman’s angry words against the organization.

ACGIH: Industrial Hygienists Suggest Exposure Limits

The American Conference of Governmental Industrial Hygienists (ACGIH) is a private, not-for-profit, professional organization for practitioners in the field of workplace and environmental health and safety.  With about 4,000 members worldwide,[2] ACGIH offers training workshops, sponsors conferences, and publishes reference texts, including its most well-known publication: Threshold Limit Values for Chemical Substances and Physical Agents (TLVs®) and Biological Exposure Indices (BEIs®). [3] 

ACGIH was established nearly 70 years ago, in 1938, by a group of 76 industrial hygienists (IHs) working at state and federal agencies, including the Tennessee Valley Authority, the Bureau of Mines, and the Public Health Service. In 1946, the ACGIH invited industrial hygiene professionals working in any government institution in the U.S. or abroad to become members, and several years later, membership was opened broadly to IHs employed by corporations, trade associations, labor organizations and other non-governmental institutions. [4]

In its formative years, ACGIH established a committee to investigate and review the scientific literature on workplace exposures to chemical substances, and suggest protective exposure limits. These limits were based “on the level exposure that the typical worker can experience without adverse health effects,” [5] covering the range of impairment from skin irritation, to acute respiratory disorders, to cancer or other long-term effects. In 1946, after five years of work, the committee recommended exposure limits for 148 contaminants. The full organization adopted the committee’s recommendations, calling it the ACGIH’s first list of “maximum allowable concentrations” for chemical exposures in the workplace. In 1956, ACGIH replaced the term “maximum allowable concentration” with “threshold limit values” (TLVs). ACGIH emphasizes (then and now) that the TLVs are not “consensus standards” (i.e., a position acceptable to all interested parties) but instead are defined by the organization as “a scientific opinion based on a review of existing peer-reviewed scientific literature by committees of experts in public health and related sciences.” [5]

OSHA and ACGIH TLVs: Start-Up Standards  

During 1969 and 1970, members of Congress, business leaders and worker advocates were involved in lengthy debate and deliberation over legislation to create a federal workplace safety agency. Eventually, a compromise was struck and President Richard Nixon signed into law the Occupational Safety and Health Act (OSH Act) on December 29, 1970.

One of the most urgent and fundamental tasks facing officials at the new agency called OSHA was adopting a set of start-up standards. The law provided the Secretary of Labor with the authority to adopt without formal rulemaking any “national consensus standards” or “federal standards” to be used as an OSHA regulation. In fact, the law encouraged the Secretary to do so by setting a two-year time period to complete the task. [6]  The safety regulations adopted by OSHA during this start-up period had been developed primarily by consensus organizations, most notably the American National Standards Institute (ANSI) and the National Fire Protection Association.  For health hazards, OSHA looked to other federal rules, specifically those adopted under the Walsh-Healy Act (governing workplaces with federal contracts). Typically, these rules required employers to comply with the most current version of the ACGIH’s TLVs.  By June 1971, OSHA had adopted all of its start-up standards, including about 425 workplace exposure limits for chemical substances, and the majority of them were based on the ACGIH’s TLVs for the year 1968. [7]

OSHA Falls Behind on Exposure Limits

Over the next 15 years, the ACGIH TLV committee continued to review and recommend revisions to improve the organization’s TLVs.  By the mid-1980’s the professional organization had adopted an additional 200 TLVs for chemical substances. [8]  Some of the TLVs were not without controversy.  Public health advocates, for example, criticized the ACGIH and asserted that its decision-making process was tainted by excessive influence by industry-employed IH's and other corporate representatives. [9,10,11]  

During this same time period (1970-1985), OSHA was engaged in major rulemakings to protect workers from exposure to lead, asbestos, vinyl chloride and cotton dust.  In total, it issued new health standards for about 25 contaminants, compared to the hundreds of chemical substances subject to reevaluation and revision by the ACGIH TLV committee.  In a bold move in 1988, OSHA Assistant Secretary John A. Pendergrass proposed improvements to 428 workplace exposure limits.  In making this decision, the Assistant Secretary acknowledged the agency’s failure to issue new standards for chemical substances, noting “a gap has developed between the OSHA permissible exposure limits and the more current ACGIH TLVs” and admitting OSHA “would never be able to keep up with the many chemicals which will be newly introduced in the future.” [8]

OSHA proceeded with this ambitious rulemaking effort and issued a final air contaminants rule in January 1989, with improved exposure limits for more than 400 substances. [12a]  The new limits were based primarily on the most-recent TLVs adopted by the ACGIH and limits recommended by the National Institute for Occupational Safety and Health. [12a]  Asst. Secretary Pendergrass remarked:

"we were able to make a 20-year leap forward in the level of worker protection in a relatively short time" [12b]

Despite the Department of Labor's satisfaction with the rule, both labor and industry groups challenged it in the U.S. Court of Appeals, with one side arguing the rules did not protect workers enough, and the other claiming the streamlined process was illegal. The Court was convinced by the arguments and in July 1992 vacated OSHA’s air contaminants rule. [13]  The Court instructed the agency of its obligation to make a risk and feasibility finding for each of the 428 substances, something that OSHA had not done in the rule. As a result of this court decision and OSHA’s unwillingness to engage in a follow-up rulemaking, nearly all of the OSHA exposure limits on the books still date back to 1968.

OSHA & ACGIH TLVs: Partners in Workers’ Right-to-Know

Although OSHA’s 1989 PELs Update did not stand, the agency did make use of the ACGIH’s TLVs in a regulation to help inform workers about on-the-job hazards.  In 1983, OSHA issued a “right-to-know” standard called the Hazard Communication rule (HazCom). [14]  The purpose of the rule is to provide workers with basic information about the chemical contaminants to which they are exposed at work, in an effort to prevent chemically-related injuries and illnesses.  It requires chemical manufacturers to assess the hazards of the chemicals they produce, and provide accurate labels and material safety data sheets (MSDS) for downstream users of their products.

Under the HazCom standard, an MSDS must include, among other things, the OSHA permissible exposure limit (if there is one), the current ACGIH TLV, and whether the chemical is listed in the National Toxicology Program’s Report on Carcinogens or is designated as a potential carcinogen by the International Agency for Research on Cancer (IARC). [15] 

When the HazCom standard was adopted by OSHA in 1983, it was challenged in federal court, as are most new OSHA regulations. The requirement to list the current ACGIH TLVs on MSDSs, however, was not an issue in the lawsuit.  In fact, the preamble to the final rule and comments contained in the record suggest little opposition at the time to referring to the TLVs in OSHA’s right-to-know rule. Ultimately, the HazCom standard was upheld (in most respects) by the US Court of Appeals in May 1985. [16]

For more than 20 years now, MSDSs have provided workers with health hazard information about chemicals to which they are exposed, including a reference to the current ACGIH TLV. (The major exception is the 300,000 workers employed at US mining operations, who are covered by regulations adopted by the Mine Safety and Health Administration (MSHA), not OSHA rules.  A comparable HazCom rule was not adopted by MSHA until October 2000; prior to that mine workers did not have these same fundamental right-to-know protections.) 

Under HazCom, employers are not required to comply with ACGIH TLVs; that is, there is no legal requirement that they reduce workers' exposures down to the value recommended by ACGIH.  Employers are only required to comply with exposure limits specifically promulgated by OSHA or MSHA. The ACGIH TLVs simply provide information to workers and employers. They are a resource for those who want more information about a particular contaminant and perhaps want a workplace safety and health program that offers more protection than OSHA’s or MSHA's standards.

ACGIH Process for Revising TLVs

As has been their practice for more than 60 years, the ACGIH and its committees continue their review of chemical substances and publish annually a booklet of TLVs.  The booklet contains one or two pages titled “Notice of Intended Change,” which alerts interested ACGIH members and the public of substances to be reviewed in the coming year by the TLV committee.  In 2006, for example, the ACGIH’s Notice of Intended Change announcement listed 35 substances, including beryllium, aldrin, and methyl propyl ketone. Although a private organization, ACGIH publishes its Notice of Intended Change to provide industrial hygienists, public health scientists and other interested parties an opportunity to comment and submit evidence for the committee’s consideration.  After completing its review, the 24-member TLV committee [17] makes a recommendation to the ACGIH’s elected Board of Directors. This 10-member Board [18] makes the final decision on changes to the TLVs.

Industries, Lobbyists and a Congressman Battle the ACGIH

In 1999, ACGIH listed “sodium sesquicarbonate,” known commonly as trona, on its Notice of Intended Change list. Trona is the raw material needed to make soda ash, which is a key ingredient in the manufacture of glass, paper, detergents, baking soda, and other goods.  Exposure to trona can cause respiratory irritation and dermatitis. A group of mining companies (General Chemical Group, Inc., FMC Corporation, OCI Wyoming LP and Solvay Minerals, Wyoming Mining Association) and users of trona (Southeastern Minerals, Anchor Glass) reported that they provided information to the ACGIH TLV committee.  They also stated that they had begun a study examining health effects among workers exposed to trona.

In the late fall 2000, the ACGIH committee’s work was nearly complete and they planned to submit their recommendation to the organization’s Board of Directors. Just then, the mining companies and users of trona filed a series of complaints in federal district court against the ACGIH, and the Secretary of Labor (DOL) and the Secretary of Health and Human Services (HHS). The first suit was filed in December 2000 in the US District Court for the Middle District of Georgia. The Washington, DC-based law firm Patton Boggs LLP brought the lawsuit on behalf of its industry clients,[19] selecting this particular judicial venue in Georgia:

“to take advantage of favorable law in the 11th Circuit permitting injunctions for Advisory Committee Act violations and product defamation" [19].

With respect to the ACGIH, the plaintiffs wanted the court to grant a restraining order to prevent the ACGIH from

“…conducting, holding, or sponsoring meetings or votes about a TLV for trona…” [20].

With respect to the DOL and HHS, the plaintiffs sought:

“injunctive relief to prevent the Government Defendants from promulgating, adopting, using, publishing, relying upon, or enforcing a TLV for trona…” [20].

The plaintiffs asserted that all three defendants violated the Federal Advisory Committee Act (FACA), a law stipulating how federal agencies set up and manage committees of non-governmental outside advisors. The industry plaintiffs were making a peculiar legal claim when they argued that ACGIH violated FACA; the law governs committees of federal agencies, not private organizations. As far as their claim against the DOL and HHS, the plaintiffs asserted that the agencies were:

“engaged in unconstitutional delegations and procedures by incorporating by reference TLVs promulgated by the ACGIH.” [20]

The creative legal arguments were never settled by a judge; the parties signed confidential agreements in September 2001 to close out the dispute. Meanwhile the ACGIH was also coming under scrutiny in Congress.

In June 2001, the House Subcommittee on Workforce Protections, chaired by Congressman Charlie Norwood (R-GA), focused on the DOL’s and HHS’s use of the ACGIH’s TLVs. The Patton Boggs counsel to the industry plaintiffs was invited to testify about OSHA workplace standards before this Congressional subcommittee, and he asserted that the government’s

“use of, and reliance on [ACGIH TLVs]…constitutes illegal rulemaking, a misuse of taxpayer dollars, and a conflict of interest that should be prohibited” [21]. 

He claimed that

“a single ACGIH action, if not reversed or prevented, could subject a vital US industry to a ‘hazardous substance’ designation” [21].

To illustrate his case, the plaintiffs’ attorney mentioned trona and diesel exhaust, which was also under review by ACGIH’s TLV committee and also the subject of a lawsuit bought by Patton Boggs for industry clients.

Rep. Norwood followed up on his formal congressional hearing with a letter to Secretary of Labor Elaine Chao. [22]  He asked her, among other things to:

  • revoke the TLV reference in OSHA’s HazCom standards
  • prohibit enforcement of TLVs in OSHA’s general duty clause
  • delete the reference to the “latest edition” of the ACGIH TLVs in MSHA’s interim HazCom rule. [23] 

 

To address complaints that federal employees participate in ACGIH events (albeit on their own time), the congressman offered a creative solution:

 “prohibit the indirect support of employee travel to ACGIH meetings through the scheduling of concurrent Department meetings.” [22]

The Department of Labor responded four months later to Congressman Norwood’s letter. The Assistant Secretary for Policy declined to address Mr. Norwood’s specific recommendations, but said they would give “careful thought to the issues you have raised." [24]

Since OSHA had been using ACGIH standards to inform its work since 1971, and since the organization was often accused by worker and environmental advocacy groups of being too industry-friendly, this sudden onslaught in 1999 came as something of a surprise. One possible explanation is that companies feared lawsuits from workers suffering from adverse health effects might claim that companies should have followed TLVs that were more protective than federal regulations.

Dormant Lobbyists Never Cease: At the Courthouse

For a couple of years, the animosity of Patton Boggs’ clients and Congressman Norwood toward ACGIH seemed to lay dormant, but in November 2004 another battle erupted. A second lawsuit was filed against the ACGIH and the Secretaries of DOL and HHS, by the International Brominated Solvents Association, Aerosafe Products, Inc. and the National Mining Association (hereafter ACGIH v Intl Brominated Solvents). Again, the plaintiffs were represented by the same attorneys from Patton Boggs and again filed the case in the US District Court for the Middle District of Georgia. The issue concerned substances listed on ACGIH’s Notice of Intended Change, specifically proposed TLVs for n-propyl bromide (nPB), silica, copper, and diesel particulate matter. The industry plaintiffs sought “declaratory and injunctive relief to prohibit the ACGIH…from considering, creating, publishing, promulgating, adopting, using, or recommending TLVs” for these four substances and prohibiting DOL and HHS from “allowing their officials and employees to seek, suggest, use, adopt, rely upon, promulgate, or enforce TLVs” for them. [25] (emphasis added)

The plaintiffs claimed, among other things, that ACGIH, DOL and HHS violate the Administrative Procedure Act (APA) and the Federal Advisory Committee Act (FACA); do not disclose TLV authors, credentials or conflicts of interest; and act in secret. In their complaint, the industry plaintiffs allege: “the ACGIH Board and committees are permeated by federal officials…[and] officials of Defendants DOL and HHS hold important positions in the ACGIH leadership and in the ACGIH bodies that request, review, formulate, propose and adopt TLVs. …ACGIH TLVs are controlled, managed, and/or subject to management and heavily influenced by officials of HHS, DOL and other federal departments and/or entities. …ACGIH committee members, and DOL and HHS officials, use ACGIH work products to influence government policy and set artificially unsupported standards of care…”[26]

ACGIH responded to the legal complaint, rebutting the allegations made by the industry defendants. They described themselves as an organization with 4,000 members worldwide, drawing from “virtually all segments of the occupational and environmental health professions,” working for government entities, universities and private industry.[27] ACGIH members who are also federal employees participate in organizational events “in their individual ― not their official — capacities” and use “annual leave” to attend ACGIH functions.[27] The ACGIH’s response to the court also noted that “TLVs are intended to be conservative recommendations based upon the premise that the protection of the health and safety of workers is of paramount importance.” The ACGIH policy statement on the use of TLVs states: “they are not developed for use as legal standards and ACGIH does not advocate for their use as such. However, it is recognized that in certain circumstances individuals or organizations may wish to make use of these recommendations or guidelines as a supplement to their occupational safety and health program.”[28]

In a frank rebuttal to the industries’ legal complaint, ACGIH asserted: “plaintiffs are free to disagree with the scientific opinions and conclusions represented by ACGIH’s TLVs …[and] are also free to develop and publish their own exposure guidelines (as some trade associations do…)"[27]

After months of legal sparring, the Court denied the industry plaintiffs’ request for a temporary restraining order to prevent ACGIH from acting on its TLVs.[29] Later, the court dismissed four of six plaintiffs’ claims, including those alleging that the defendants had violated FACA and that ACGIH was subject to the APA.[30] The court found grounds for the litigation to proceed on whether DOL’s and HHS’s reference to the ACGIH’s TLVs constitute a “final agency action” under the Administrative Procedure Act, and whether the ACGIH TLVs violate the State of Georgia’s Uniform Deceptive Trade Practices Act.[31]

In response to the judge’s favorable decision, ACGIH declared that this lawsuit:

“[is another] in a series of attempts by well-funded industry groups to intimidate ACGIH from publishing information and scientific opinions about the potentially adverse health effects of exposures to substances used in the workplace … [it] has been expensive and disruptive to ACGIH which is a not-for-profit volunteer organization of health and safety professionals with very limited resources.”[32]

 And the judge cautioned the parties that his decision:

“says nothing about whether the federal defendants have acted unlawfully, nor does it otherwise speak to the merits of the APA claim. Rather, it merely constitutes a threshold finding by the Court that [industry] plaintiffs may proceed to discovery on this claim.” [30a]

The deadline for discovery was September 15, 2006, and in the successive months, numerous procedural motions and counter motions have been filed.

In April 2007, the plaintiffs asked the Court to allow them to amend their complaint, saying that through the discovery process, they:

“uncovered substantial evidence supporting two additional claims against ACGIH such that justice requires amendment.” [30b]

One claim was for “negligence,” with the plaintiffs’ attorneys alleging that ACGIH’s Board and Committee members breached their scientific duties, and other for “negligent misrepresentation.” The court gave ACGIH until June 20, 2007 to respond to this latest legal maneuver.

Dormant Lobbyists Never Cease: In the Congress

Outside the judicial arena, Congressman Charlie Norwood provided additional political muscle to the industries’ complaints about the ACGIH TLVs. His muscle took the form of congressional hearings and legislation.  In April and June 2006, Congressman Norwood held congressional hearings on “non-consensus standards,” (a term he may have borrowed from Patton Boggs’ attorney Henry Chajet, who used it to characterize ACGIH TLVs at the Congressman’s hearing five years earlier).

At one point in the proceedings, Congressman Norwood erupted before the cameras, saying

“the ACGIH is going to stop writing the laws of this land, if it’s the last thing I do on earth … I’m going to come after them … and now it’s war!” [1]

He again offered a platform for the Patton Boggs attorney to make a case for his industry clients in the ongoing case ACGIH v Intl Brominated Solvents, with both repeatedly calling the ACGIH a “non-consensus organizations,” a term they also used to describe the International Agency for Research on Cancer.  Congressman Norwood summed up his complaint against the so-called “non-consensus organizations” with:

“[their] regulations carrying the weight of law, are written by a single outside group with no oversight, public participation, or input from competing organizations.” [1]

A lone dissenting voice at one of Congressman Norwood’s hearings was provided by David Michaels, PhD, MPH, an epidemiologists and former assistant secretary for environment, health and safety at the Department of Energy  Dr. Michaels's testimony emphasized that protecting workers from chemicals should not depend on what everyone can agree, but rather on the scientific evidence. He noted that in 1970, when the Surgeon General’s warning began appearing on cigarette packages, the caution label was not crafted by consensus with the tobacco industry. Dr. Michaels pointed out that we would not want to set meat safety standards based on the contaminant levels the slaughterhouses can live with, or highway speed limits based on the preferences of the long-haul trucking industry. Effective public health protections are often not embraced by the regulated community, particularly if the economic stakes are high. That doesn’t make a “non-consensus” decision, such as those adopted by ACGIH, invalid or false; rather, they are evidence-based decisions.[33]

In addition to holding the subcommittee hearings to discuss the alleged problems with “non-consensus” standards, Congressman Norwood introduced the “Workplace Safety and Health Transparency Act" (H.R. 5554)[34].  The bill would prohibit OSHA, any OSHA State Plan State, or MSHA from:

“incorporating by reference any finding, guideline, standard, limit, rule, or regulation based on a determination from a non-consensus organization that does not conform to the Occupational Safety and Health Act definition of a consensus standard.” 

The OSH Act defines a national consensus standard as one that has been promulgated by a

“nationally-recognized standards-producing organization under procedures whereby it can be determined by the Secretary of Labor that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, was formulated in a manner which afforded an opportunity for diverse views to be considered…” [35]. 

In an attempt to garner support for his bill, Congressman Norwood’s “Dear Colleague” letter asserted:

“…OSHA and MSHA have both chosen to outsource their work to non-governmental organizations that set their own independent standards in the shadows and without public consensus. …[C]urrent OSHA regulation created by bureaucrats runs roughshod over Congressional intent, and instead automatically adopts non-governmental health and safety standards devoid of stakeholder input, transparency, and sound science….It is time to rein in Department of Labor bureaucrats who outsource America’s health and safety standards to organizations that prevent stakeholder input, deny public access, and promote junk science.” [36]

Behind the strong rhetoric, there was nothing concrete to support the Congressman’s words. He failed, for example, to elaborate on how ACGIH TLVs “carry the weight of law.”  As mentioned above, the MSDSs required by OSHA’s HazCom standard refer to ACGIH TLVs, but there is no legal requirement for employers to reduce exposures to the TLV. As the common name suggests, the “right-to-know” standard is designed to give workers the latest information about chemicals used at their jobsites. For some workers, the information may compel them ask for better protection or compare their actual exposure level to the one recommended by ACGIH.

Moreover, the late Congressman alleged that OSHA and MSHA “bureaucrats” need to be reined in, insinuating that they are flooding the Federal Register with new workplace regulations and exposure standards. In reality, the first and only health standard issued by MSHA was published in 2001, and the last one issued by OSHA was in 2006 on the carcinogen hexavalent chromium that a federal court ordered them to complete; prior to that, the last OSHA health standard was issued in 1997. 

The ACGIH opponents have also resorted to personal attacks on federal employees (and other scientists) who participate in ACGIH activities, particularly those who serve on the TLV committee.

“The taxpayers pay them during daytime to work at OSHA, then at nighttime they go over to ACGIH and write these standards, then take them back to their OSHA desk and declare ‘it’s a great standard’ and none of us get any input at all.” [1],[37] 

Of the 20 individuals on the current TLV committee, only one is a federal employee. In previous years, there may have been as many as three or four Department of Labor employees on the committee, hardly the imbedded operatives suggested by critics.  These individuals volunteer their time to serve on ACGIH committees.  Congressional critics and attorneys representing these industry clients falsely implied that these individuals are engaged in some illicit activity. Instead, those who serve on ACGIH committees have special skills and expertise that they are willing to share to make the world a little safer and healthier for workers.

Conclusion

For nearly 70 years, ACGIH has undertaken the important task of generating TLV recommendations for hundreds of substances, based on the input of industrial hygiene professionals. Since it would take decades for OSHA to make rules on all of the substances for which ACGIH has issued TLVs, it is appropriate that OSHA make use of the organization’s work. The presence of ACGIH TLVs on Material Safety Data Sheets does not constitute a requirement for companies to meet those limits; it merely provides workers with information about the substances to which they are exposed.

It appears that opponents of the ACGIH, including several of Patton Boggs’s industry clients, declared “war” on the non-profit organization because they suspected TLVs might compel workers or their advocates to push for less-hazardous workplace conditions.  If it is a war, it is a very lopsided one; the brominated solvents and mining industries can afford hundreds of thousands of dollars for its legal case, while the non-profit ACGIH set up a legal defense fund to help defray the cost of these lawsuits. Some advocates for worker health have rallied behind ACGIH, even though they faulted it in the past for being too industry-friendly, because they know that prospects for new OSHA regulations are dim and ACGIH’s TLV’s are one of the few remaining resources for employers and employees seeking to make their workplaces safer.

On the legal front, the battle over TLVs for nPB, silica, copper, and diesel particulate matter has yet to be resolved.  In Congress, the attack on ACGIH has lost traction with transfer of power from Republicans to Democrats, and with the untimely death of Congressman Norwood from idiopathic pulmonary fibrosis and cancer.  Nonetheless, it appears that industry groups and their supporters have broadened their anti-regulation strategy to include a fight against science-based work to provide employers and employees with more information on workplace hazards, and the ACGIH is likely to remain embattled in the future.

****

Update (May 2008): Legal Victory for ACGIH

On May 2, 2008, U.S. District Judge Hugh Lawson ruled in favor of ACGIH, dismissing claims by the International Brominated Solvents Association, Aerosafe Products, Inc., Anchor Glass Container Products, Inc. and the National Mining Association, that ACGIH violated Georgia’s Uniform Deceptive Trade Practices Act. (Lawson ruling) The court also rejected the industry-plaintiff’s attempt to resurrect related claims against the Department of Labor, reprimanding the plaintiffs by writing:

“The Court disagrees with the Plaintiffs’ asssessment that this case somehow breathes life into expired claims and will not entertain any discussions towards a count already dismissed.”

The Court defended the scientific organization, saying it is:

“a non-profit association comprised of a group of scientists…more like an entity designed to promote ideas than one that engages in deceptive advertising in an effort to derive a financial benefit.”

In a news release issued by ACGIH, the organization’s chair stated:

“This ruling confirms our long-held position that ACGIH has the right to publish its scientific opinions that make the workplace safer. Occupational and environmental health professionals need to know they can rely on the information we provide. After almost four years of enormous expenditure of ACGIH financial and human resources in defending against this litigation, we view this as great news for the association, for the continued freedom of expression of scientific opinion, and for the entire occupational and environmental health profession.”

*****

Read a related story on the National Association of Manufacturers' 2006 lawsuit against OSHA's reference to ACGIH TLVs in its Hazard Communication standard (Full story Here) or (Just final opinion)

About the Author: Celeste Monforton, MPH is a research associate and lecturer at The George Washington University School of Public Health.  She was a federal employee from January 1991 thru December 2001 at the US Department of Labor.  She joined ACGIH in 2006 and made a contribution to the ACGIH Legal Defense Fund.

References:
(1) Hearing on Examining The Use of Non-Consensus Standards in Workforce Health and Safety. Subcommittee on Workforce Protections, House Education and the Workforce Committee, April 27, 2006. Link to webcast (01:20:00)

[2] Declaration of A. Anthony Rizzuto, November 22, 2004, In: Int’l Brominated Solvents Association, et al. v. ACGIH, et al., Civil Action No. 5:04-CV-394.

[3] American Conference of Governmental Industrial Hygienists. 2006 TLVs® and BEIs®: Based on the Documentations of the Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices. Cincinnati: ACGIH.

[4] ACGIH website. History of ACGIH.

[5] ACGIH. Statement of position regarding the TLVs® and BEIs®. 2006 TLVs and BEIs: Based on the Documentation of the Threshold Limit Values for Chemical Substances and Physical Agents & Biological Exposure Indices. Cincinnati: ACGIH, 2006, p. v.

[6] Section 6(a), Occupational Safety and Health Act of 1970.

[7] Plog BA ed. Fundamentals of Industrial Hygiene, 3rd edition. National Safety Council. 1988: 20.

[8] OSHA. Air Contaminants proposed rule. 53 Federal Register 20960, June 7, 1988. 

[9] Castleman BI, Ziem GE. Corporate influence on threshold limit values. Am J Ind Med. 1988;13(5):531-59. (PubMed abstract

[10] Ziem GE, Castleman BI. Threshold limit values: historical perspectives and current practice. J Occup Med. 1989 Nov;31(11):910-8. (PubMed abstract)

[11] Roach SA, Rappaport SM. But they are not thresholds: a critical analysis of the documentation of Threshold Limit Values. Am J Ind Med. 1990;17(6):727-53. (PubMed abstract)

[12a] OSHA. Air Contaminants final rule. 54 Federal Register 2332, January 19, 1989.

[12b] Swoboda F. OSHA tightens rules on worker hazards. Washington Post, January 14, 1989.

[13] AFL-CIO v OSHA, 965 F.2d 962, July 7, 1992.

[14] OSHA. Hazard Communication Final Rule. 48 Federal Register 53280, November 25, 1983.

[15] 29 CFR 1910.1200(g)(2).

[16] United Steelworkers of American v. Auchter. 763 F. 2d 728 (3d Cir. 1985).

[17] A list of the current TLV committee members is available here.

[18] A list of the current ACGIH Board of Directors is available here.

[19] Chajet H. Illegal rulemaking stopped, but aggregate industry still at risk. Aggregates Manager, November 2001.                    

[20] Order of Duross Fitzpatrick, Judge, US District Court, April 4, 2001, In: Anchor Glass Container Corp, et al. vs. ACGIH, et al., 5:00-CV-563-1.                                                                      

[21] Chajet H. Testimony before the US House of Representatives Committee on Education and the Workforce, Subcommittee on Workforce Protections, June 14, 2001.

[22] Norwood C. Letter to Secretary of Labor Elaine Chao, May 23, 2001.

[23] MSHA. Interim final rule on hazard communication. 65 Federal Register 59097, October 3, 2000. (See page 59097)

[24] Spear C.  Letter to Congressman Norwood, September 24, 2001.

[25], [26] Complaint, submitted to the US District Court, Middle District of Georgia, November 17, 2004. In: International Brominated Solvents Association, et al v. ACGIH et al (5:04CV394).

[27] Defendant ACGIH’s Memorandum in Support of Motion to Dismiss in Lieu of Answer to Amended Complaint, December 30, 2004. In: International Brominated Solvents Association, et al v. ACGIH et al (5:04CV394).

[28] ACGIH. Policy Statement on the Uses of TLVs® and BEIs®. 2006 TLVs® and BEIs®: Based on the Documentations of the Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices. Cincinnati: ACGIH.

[29] Order by US District Judge Hugh Lawson, US District Court for the Middle District of Georgia, November 26, 2004. In: International Brominated Solvents Association, et al v. ACGIH et al (5:04CV394 (DF)).

[30a] Order by US District Judge Duross Fitzpatrick, US District Court for the Middle District of Georgia, March 11, 2005. In: International Brominated Solvents Association, et al v. ACGIH et al (5:04CV394 (DF)).

[30b] Plaintiffs' Motion for Leave to Amend Complaint, April 13, 2007.

[31] Official Code of Georgia §10-1-372.

[32] “Industry groups fighting ACGIH ‘very satisfied’ with TLV decision.” Occupational Hazards, June 8, 2005.

[33a]  David Michaels, PhD MPH is also the Director of SKAPP, the organization which hosts this website.

[33b] Michaels D. Testimony before the Subcommittee on Workforce Protections, House Committee on Education and the Workforce, June 14, 2006.

[34] Workplace Safety and Health Transparency Act, H.R. 5554, 109th Congress, June 8, 2006.

[35] Section 3(9), Occupational Safety and Heath Act of 1970 (29 USC 651).

[36] Norwood C.  Dear Colleague letter, June 6, 2006.

[37] Torres K. Hearing stirs debate over non-consensus standards. Occupational Hazards, May 3, 2006.