Professional Health and Safety Organization Under Legal Attack – And So Is Worker Safety

by Mary Erio 

If you want to keep current on worker health and safety issues, don’t just look at OSHA updates.  Recently, independent professional health and safety organizations have come under attack for their efforts to recommend improved workplace standards. 

The organization currently under attack is called the American Conference of Governmental Industrial Hygienists, or ACGIH.  For the non – Industrial Hygienist, a brief introduction is necessary.  The ACGIH is a voluntary, not for profit, professional scientific society, whose primary purpose is to promote worker health and safety.  The conference was formed in 1938, and represented health and safety professionals from the government, universities, and the Tennessee Valley Authority.  Today, the association includes governmental and university Industrial Hygienists as full members.  Corporate and other Industrial Hygienists can join as associates.

The best known of ACGIH’s activities, the development of Threshold Limit Values, or TLVs, was established in 1941.  The TLV committee became responsible for investigating, recommending, and annually reviewing recommended exposure limits for chemicals.  When OSHA was created in 1970, the 1968 TLVs were almost completely adopted as OSHA’s legally enforceable Permissible Exposure Limits (PEL).

While the OSHA Law makes it difficult for OSHA to update a chemical PEL by the rulemaking process, the ACGIH continues to annually update the TLV list based on recent studies.  As you might expect, the current TLVs for many chemical substances are significantly lower than the legal OSHA PEL.  For example, the OSHA PEL for acetone is 1000 parts per million (ppm), for an 8 hour average exposure, while the 2001 recommended TLV is 500 ppm.  Additionally, TLVs have been recommended for over 100 chemicals for which no OSHA PEL currently exists.  One example is the TLV for refractory ceramic fibers (a voluntary OSHA PEL was recently adopted for fiberglass).

A good question at this point is:  Since the ACGIH TLVs do not have the force of law, what good are they?   First, many Industrial Hygienists compare TLVs with workplace chemical exposure sampling.   Even if a worker’s chemical exposure is less than the OSHA PEL, an Industrial Hygienist might recommend that the employer voluntarily comply with a lower TLV, since it is based on more recent data, and is more protective of employee health.  The OSHA Hazard Communication Standard requires that chemical producers use the TLVs as one source of chemical hazard determination.  OSHA has also used the TLVs for enforcement of the General Duty Clause, for known chemical hazards where no OSHA PEL exists.  Many countries around the world use TLVs as a guide for the development of exposure limits.

It is precisely the respect and influence of the TLVs that has attracted recent lawsuits from potentially affected industries.  For example, in 1999, ACGIH proposed a TLV of 0.5 mg/m3 (milligram per cubic meter of air) for respirable trona.  Trona (or sodium sesquicarbonate) is a naturally occurring mineral used to make baking soda, animal feed, and is a key ingredient in glass.  Previously, the TLV for trona was only included as a general respirable particulate recommendation of 3 mg/m3.  Last December, companies that mine and process trona filed a lawsuit against ACGIH in the U.S. District Courts in Georgia.  The “trona companies” are represented by the legal firm of Patton Boggs LLC. The lawsuit seeks to prohibit ACGIH from publishing a trona TLV, and from holding meetings to discuss trona. 

The trona industry plaintiffs argue that ACGIH serves as an advisory committee to the Department of Labor (DOL) and Health and Human Services (HHS), and therefore,                  cannot be permitted to adopt a trona TLV. Further, DOL and HHS cannot rely on a TLV for trona. They argue that publication of the trona TLV will mislead employees and consumers about safe levels of trona exposure, and that they will be irreparably damaged by such publication.  They seek monetary damages from ACGIH.

The trona companies charge that DOL and other employees intermingle their roles and resources and use the ACGIH to support federal rulemaking efforts, in violation of the Federal Advisory Committee Act, which mandates that only chartered open and balanced advisory committees be used by the federal government.  They also argue that the TLV Committee did not wait for the results of the industry study, which reportedly showed the proposed TLV to be “scientifically unsound.”

Attorneys from Patton Boggs have also provided written testimony to the U.S. House of Representatives Committee on Education and the Workforce.  The testimony claims that ACGIH, controlled by federal officials, engages in secret rulemaking in violation of the Federal Advisory Committee Act, and recommends “TLV reform” through the creation of a Federal Health Standard Advisory Committee comprised of ACGIH members, as well as representatives from labor and industry.  The complete congressional testimony by Patton Boggs, as well as a summary, “Secret Rulemaking Threatens U.S. Industry”, can be found on the company website at pattonboggs.com.  

In a related development, Georgia Congressman Charlie Norwood, wrote a letter to the Secretary of Labor, Elaine Chao requesting that DOL employees be prohibited from serving on the ACGIH Board of Directors and TLV committee, as well as many other restrictions on DOL employee participation, and the use of TLVs. 

The ACGIH has explained on its website that ACGIH members who are government employees attend ACGIH meeting and work on committees on the same basis as other government employees who attend meeting of other professional associations, such as the American Bar Association and the American Medical Association.  Furthermore, ACGIH members volunteer for the TLV Committee, and ACGIH receives no federal or state funding to develop workplace exposure guidelines.

A clear response to this type of lawsuit came from ACGIH Chair, Scott Merkle, in a speech recently presented at the American Industrial Hygiene Conference and Exposition.   Without discussing the legal details, he stated, “these lawsuits are a threat to ACGIH’s existence.  But there is even more at stake than the survival of our organization. The use of the legal system in these cases represents a real and serious threat to our profession.  These cases are a real and serious threat to worker health.”   Continuing, “these cases would have ACGIH balance economic health against worker health.  These cases would have us place the corporate right to make a profit ahead of an associations right to free speech.  These cases seek to silence the TLVs.”  The full text of Mr. Merkle’s speech can be found on the ACGIH website at acgih.org.  The website also contains news on the status of this and other lawsuits, as well as a sample letter of support and information about the legal defense fund.

This probably will not be the last time that the Federal Advisory Committee Act  is used against professional health and safety organizations.

Information for this article was obtained from the ACGIH website, the Patton Boggs website, the OSHA Permissible Exposure Limits, and the 2001 ACGIH “Threshold Limit Values for Chemical Substances and Physical Agents.”

Mary Erio is an industrial hygiene consultant, based in Kansas City. Her professional credentials include Professional Engineer, Certified Industrial Hygienist, and Certified Safety Professional. She is a past chair of the Kansas City Chapter of the American Industrial Hygiene Association. Erio also does a monthly feature, Safety First, on the Heartland Labor Forum radio show and provides answers to workers with workplace health and safety questions visiting the KC Labor web site. She can be contacted at safety@kclabor.org.

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