May 14, 2007 The Pump Handle 1Comment

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.  This rule, issued by OSHA in 1983, (48 Federal Register 53280) provides fundamental right-to-know protections to most U.S. workers.  Among other things, the HazCom rule requires employers to give workers access to material safety data sheets (MSDS) which contain information on chemical substances to which the workers may be exposed on the job.  The MSDS’s are required to include health hazard information, such as specific target organ effects, and any OSHA permissible exposure or threshold limit value (TLV) recommended by the American Conference of Governmental Industrial Hygienists (ACGIH).  It was OSHA’s longstanding reference to the ACGIH TLVs that raised the ire of the NAM and the subject of the lawsuit.  On May 11, 2007, Justice David Tatel 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’s list of permissible exposure limits, and “threshold limit values for chemical substances and physical agents in the work environment, ACGIH (latest edition).”

It is the “latest edition” phrase that most perturbed the industry petitioners because the ACGIH, unlike OSHA, annually updates its hazard assessment on a selected subset of chemicals.  Toxicologists, industrial hygienists, epidemiologists and others who are members of ACGIH, volunteer their time and offer their expertise to serve on the group’s TLV committee.  The committee members review the available scientific information and annually revise their handbook of recommended TLVs.  The TLVs are set at:

 “the level of exposure that the typical worker can experience without adverse health effects.”  

TLVs are not legally binding limits, that is, an employer is not obligated under OSHA regulations to keep workplace exposures below the TLVs.  But, as part of OSHA’s HazCom standard, they are required to be publicized on MSDSs, in the spirit of a worker’s “right-to-know.” 

[“Right-to-know, that is SO 1980’s.] 

When the ACGIH updated its TLV booklet in 2006, (and OSHA’s HazCom rule was “amended” by reference,) the NAM and others filed their lawsuit.  The industry plaintiffs 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. ‘ 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, 2007 Ruling)

OSHA, on the other hand, asserted that the industry’s challenge to the HazCom rule was about two decades too late.  In 1983 when the final rule was issued, any interested party had the right to seek judicial review of the rule; indeed some did.  But the reference to the “latest edition” of the ACGIH TLVs was never raised in these original challenges to HazCom.  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.  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. 

For nearly 20 years, workers at U.S. coal, metal and non-metal mines did not have the same right-to-know protections provided in OSHA’s HazCom standard.  In fact, miners had no right-to-know safeguards. 

MSHA proposed a HazCom standard for mine workers in 1990 (seven years after OSHA’s rule took affect), but the rule languished on the agency’s regulatory agenda until it was issued (finally!) in 2000.  For reasons that were never fully explained to us, the Clinton-era Solicitor of Labor and OMB agreed to allow us (MSHA) to issue the rule, if we published it as an “interim final rule.”  Not knowing exactly what an “interim final rule” was, but eager to get the much-needed rule in place, we published it on October 3, 2000.*  But, as such, the mining community would be given at least one more opportunity to comment on the rule.  Ultimately, their opportunity came during the new, Supreme Court-selected Bush Administration. 

Opponents of ACGIH and the Department of Labor’s references to ACGIH TLVs had already been fighting the non-profit organization in federal court,** and when Secretary of Labor Chao, Solicitor of Labor Scalia and OMB officials gave the industry an opportunity to modify MSHA’s HazCom rule, the industry made the most out of the gift.  

MSHA’s “interim final rule” published in the final months of the Clinton Administration incorporate the same language of OSHA’s HazCom standard, that is, it made reference to the “ACGIH’s TLV’s and Biological Exposure Indices (latest edition).”  But during the public comment period, the agency acquiesced the industry lobbying.  The final rule, published in June 2002, refers only to the ACGIH TLVs 2001 edition.  

Moreover, instead of the original (interim rule (2000))  language which also referenced the National Toxicology Program’s (NTP) 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.) 

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.  Although the OSHA’s HazCom rule has been preserved, at least for now by the Court of Appeals decision, 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) 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. filed a lawsuit against ACGIH, the Departments of Labor & HHS in December 2000 (Case No. 5:00-cv-00563-DF, 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.  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

  1. 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.

Leave a Reply

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.