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Published: June, 2008; Vol 5, Num 1

 

Court Empowers OSHA ‘Best Practice’ References

“OSHA does not have either the staff or the budget to keep its standards up to date or to write new standards that are needed,” states LIUNA General President Terence M. O’Sullivan.  “The agency has developed the useful practice of referencing more up-to-date, voluntary standards developed by professional safety organizations like the American National Standards Institute (ANSI) or the American Conference of Governmental Industrial Hygienists (ACGIH). But this practice was in jeopardy due to claims by industry that private, non-governmental efforts to define ‘best practice’ guidelines are inherently biased and should not be allowed. With Judge Lawson’s ruling, OSHA can continue to use consensus standards to provide up-to-date information about worksite hazards to LIUNA members and signatory contractors.”

Who is the ACGIH?

Despite its name, the American Conference of Governmental Industrial Hygienists (ACGIH) no longer confines membership to government employees. Industrial hygienists from industry, academia, research and other nations work together in its 11 working committees. As the ACGIH says, the best known of its committees is the Threshold Limit Values for Chemical Substances Committee, the committee that developed the TLVs that were the subject of the Court’s dismissal. The ACGIH established this committee in 1941, and it published its first list of TLVs in 1946. Its current list defines exposure limits for 642 chemical substances and physical agents.

O’Sullivan refers to the May 6 decision of U.S. District Court Judge Hugh Lawson, who threw out the nine-year-old lawsuit against the ACGIH and the U.S. Department of Labor (OSHA’s parent agency) that was brought by several chemical industry associations.

Many OSHA standards currently reference voluntary standards.  OSHA’s Hazard Communication standard, the one at issue in the dismissed case, requires companies to train workers on the hazards of chemicals to which they may be exposed and give them access to Material Safety Data Sheets (MSDS) that contain information about the hazards.  These MSDS must include ACGIH threshold limit values (TLVs) and NIOSH recommended exposure limits (RELs) where they exist, and the MSDS must be kept up to date with the most recent limits.

Although OSHA can only require the provision of up-to-date MSDS but cannot require companies to reduce exposures to those limits, this reference to non-governmental guidelines draws the ire of some industry representatives.  They complain that such “best practice” references establish de facto rules which, if ignored, could result in lawsuits by workers whose injuries or illnesses might have been avoided had the guidelines been followed.

OSHA and other groups concerned about workplace safety counter that the agency would be derelict if it did not refer employers and their workers to the most advanced, most current information available. They also point out that the ACGIH – along with ANSI and other voluntary standards organizations – have special committees that draft voluntary standards only after full consideration of the developing science as well as industry input. Moreover, these standards are regularly kept up to date (e.g., ANSI standards are reviewed and updated every five years; ACGIH updates some of its standards every year). 

In the dismissed suit, the International Brominated Solvents Association, the National Mining Association and other plaintiffs charged that the ACGIH’s publication of TLVs is, itself, a false and deceptive trade practice that should be barred because it is “not supported by credible science” and “disparage(s) the goods, services or businesses of another by false or misleading representation of fact.” The industry wanted the court to stop ACGIH from publishing the TLVs and stop OSHA and NIOSH from referring to them. 

By questioning the credibility of ACGIH, a long-established professional association, the lawsuit threatened to open a new basis for opposing any OSHA reference to any guideline that emerges from a non-governmental organization. Now, nine years later, the judge has dismissed the complaint, ruling that “ACGIH, a non-profit association comprised of a group of scientists that adopts workplace safety exposure levels is more like an entity designed to promote ideas than one that engages in deceptive advertising in an effort to derive a financial benefit.”

ACGIH Board of Directors’ Chair Lawrence M. Gibbs, while complaining of the wasted time and money required to defend the association’s scientific integrity, said, “[W]e 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.”

The LHSFNA is part of that profession. “Our Fund’s Occupational Safety and Health Division staff regularly participate in ANSI committees and other professional associations that develop voluntary standards,” says O’Sullivan, noting the years of effort that are often required to develop best practice guidelines that respect both science and the needs of our industry. “By affirming ACGIH’s credibility as a source of scientific information, the judge strongly suggests that OSHA’s practice of incorporating these voluntary standards is not only appropriate but important and well-justified.” 

[Steve Clark]