In March 2006, a coalition of industry trade groups, led by the National Association of Manufacturers (NAM), filed suit in federal court challenging OSHA’s Hazard Communication Standard.Â This rule, issued by OSHA in 1983, (48 Federal Register 53280)Â provides fundamental right-to-know protections to most U.S. workers.Â Â Among other things,Â the HazCom rule requires employers to give workers access to material safety data sheets (MSDS)Â whichÂ contain informationÂ on chemical substances to which the workers may be exposed on the job.Â The MSDS’s are required to include health hazard information, such asÂ specific target organ effects,Â and anyÂ OSHA permissible exposure orÂ thresholdÂ limit value (TLV)Â recommended by the American Conference of Governmental Industrial Hygienists (ACGIH).Â It was OSHA’s longstanding reference to the ACGIH TLVs that raised the ire of the NAM and the subject of the lawsuit.Â On MayÂ 11, 2007, Justice David TatelÂ rejected the industry groups’ arguments, noting “the reference to the ‘latest edition’ of the hygienists’ list have been part of the regulations for some twenty years, we dismiss the petition as untimely.”
When OSHA promulgated its HazCom rule in 1983, the standard (29 CFR 1910.1200(d)) required:
“chemical manufacturers and importers to evaluate chemicals produced in their workplaces or imported by them to determine if they are hazardous. …Chemical manufacturers and importers or employers evaluating chemicals shall identify and consider the available scientific evidence concerning such hazards…and shall treat the following sources as establishing…them [as] hazardous”: substances included in OSHA’sÂ list of permissible exposure limits, and “thresholdÂ limit valuesÂ for chemical substances and physical agents in the work environment, ACGIH (latest edition).”
It is the “latest edition” phrase thatÂ most perturbed the industry petitioners because the ACGIH, unlike OSHA, annually updates its hazard assessment on a selected subset of chemicals.Â Â Toxicologists, industrial hygienists,Â epidemiologists and others who are members of ACGIH, volunteer their time and offer their expertise to serve on theÂ group’s TLV committee.Â The committee members review the available scientific information andÂ annually revise their handbook of recommended TLVs.Â The TLVs are set at:
Â “the level of exposure that the typical worker can experience without adverse health effects.”Â Â
TLVs are not legally bindingÂ limits, that is, an employer is not obligated under OSHA regulations to keep workplace exposures below the TLVs.Â But, as part of OSHA’s HazCom standard,Â they are required to be publicized on MSDSs, in the spirit of a worker’s “right-to-know.”Â
[“Right-to-know, that is SOÂ 1980’s.]Â
When the ACGIH updated its TLV booklet in 2006,Â (andÂ OSHA’s HazCom rule was “amended” by reference,) the NAM and othersÂ filed their lawsuit.Â The industry plaintiffsÂ claimed that OSHA:
“…’effectuated a new standard that imposes both new and modified compliance obligations on employers…and subjects them to the threat of enforcement actions and sanctions for failure to comply with those obligations.HazCom was amended illegally because the agency did not provide.Â ‘ Because OSHA imposed these new obligations without notice and comment, NAM claim[ed] that the agency violated section 655 [of the OSH Act].” (Tatel’s May 11, 2007Â Ruling)
OSHA, on the other hand, asserted that the industry’s challenge to the HazCom rule was about two decades too late.Â In 1983 when the final rule was issued, any interested party had the right to seek judicial review of the rule; indeed some did.Â But the reference to the “latest edition” of the ACGIH TLVs was never raised in these original challenges to HazCom.Â Judge Tatel noted this in his ruling for the Appeals Court panel:
“Because the reference to the ‘latest edition’ of the hygienists’ list have been part of the regulations for some twenty years, we dismiss the [industries’] petition as untimely.”
This ruling, however, is bittersweet.Â It forced me to recollect an unjustified giveaway to the mining industry by the G.W. Bush Admininstration with respect to MSHA’s HazCom standard.Â
For nearly 20 years,Â workers atÂ U.S. coal, metal and non-metal mines did not haveÂ the same right-to-know protections provided in OSHA’s HazCom standard.Â In fact, minersÂ hadÂ no right-to-know safeguards.Â
MSHAÂ proposed a HazCom standard for mine workers in 1990 (seven years after OSHA’s rule tookÂ affect), but the rule languished on theÂ agency’s regulatory agenda until it wasÂ issued (finally!) in 2000.Â Â For reasons that were never fully explained to us,Â the Clinton-era Solicitor of Labor and OMB agreed to allowÂ us (MSHA) toÂ issueÂ the rule, if we published it as anÂ “interim final rule.”Â Not knowing exactly what an “interim final rule” was, but eager to get the much-needed rule in place, we published it onÂ October 3, 2000.*Â But, as such,Â the mining community would be given at least one moreÂ opportunity to comment on the rule.Â Ultimately, their opportunityÂ came during theÂ new, Supreme Court-selected Bush Administration.Â
Opponents of ACGIH and the Department of Labor’s references to ACGIH TLVs had already been fighting the non-profit organization in federal court,** andÂ whenÂ SecretaryÂ ofÂ Labor Chao, Solicitor of Labor ScaliaÂ and OMB officialsÂ gave the industry an opportunity toÂ modify MSHA’s HazCom rule, the industryÂ made the most out of theÂ gift.Â Â
MSHA’s “interim final rule” published in theÂ final months of the Clinton Administration incorporate the same language ofÂ OSHA’s HazCom standard, that is, itÂ made reference to the “ACGIH’sÂ TLV’s and Biological Exposure Indices (latest edition).”Â But during the public comment period, the agency acquiesced the industry lobbying.Â The final rule, published in June 2002, refers only to theÂ ACGIH TLVs 2001 edition.Â Â
Moreover, instead of the original (interim rule (2000)) Â language which also referenced the National Toxicology Program’s (NTP)Â Report on Carcinogens (latest edition) and International Agency for Research on Cancer’s (IARC) Monograph Series, MSHA’s HazCom rule was modified to reference only NTP’s 9th Report on Carcinogens (2001) (since then there has been a 10th and 11th Report on Carcinogens, and the 12th is in progress) and IARC Monograph Volumes 1 through 77 (since then 11 additional volumes have been issued.)Â
The mining industry’s manipulation of fundamental right-to-know safeguards, and the Bush Administration’s offering of opportunities to diminish worker protections is nauseating.Â Although the OSHA’s HazCom rule has been preserved, at least for now by the Court of Appeals decision,Â miners in this country are saddled with a substandard rule that fails to provide the most current ACGIH, NTP, or IARC information on potential hazards to their health.
*A lesson to be learned (I hope)Â for future senior political appointees making decisions about critically important worker S&H health rules.
**Anchor Glass Container Corp., FMC Corp., Solvay Minerals, General Chemical Group, Inc., Wyoming Mining Association, OCI Chemicals Corp. filedÂ a lawsuit against ACGIH, the Departments of Labor & HHS in December 2000 (Case No. 5:00-cv-00563-DF,Â U.S. District Court Middle District of Georgia.)
Celeste Monforton, MPH is a lecturer and research associate at The George Washington University School of Public Health & Health Services.Â She was an analyst and special assistant at OSHA (1991-1995) and MSHA (1996-2001), respectively.
One thought on “Appeals Court Upholds HazCom from Industry Challenge”
As a participant in the Hazcom campaign, I believed that OSHA referenced the ACGIH as a slap to NIOSH and its REL’s and as a sop to industry. The REL’s are now nearly as ossified as the PEL’s.
It’s of value to go through the current TLV’s, not the TLV’s we remember from long ago, to see which make a difference, and those which provide an opening to a difference. Making a difference means that some workers are foreseeably exposed to the agent above the TLV and in compliance with the PEL. Opening to a difference means exposure about 1/2 of the TLV on a random day, a statistical indication of non compliance with the TLV.