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US industry accuses OSHA, MSHA, ACGIH of “Secret Rulemaking”

3 August 2001

The American Conference of Governmental Industrial Hygienists (ACGIH) and the Threshold Limit Values (TLV) listing for chemical substances and physical agents it publishes have been under attack by the US industry. The industry claims that ACGIH is under the influence of federal government agencies, including OSHA (Occupational Safety and Health Administration) and MSHA (Mine Safety and Health Administration), who use ACGIH as a tool in a “secret rulemaking” process. A call for an ACGIH reform was voiced in June by Henry Chajet, an occupational health attorney with Patton Boggs LLP, in his testimony before the US Congress’ Subcommittee on Workforce Protections. The testimony followed an earlier letter written, apparently in connection to two unresolved TLV lawsuits, by US Congressman Charlie Norwood to the Labor Secretary Chao, requesting actions against ACGIH. In the ACGIH opinion, these actions could be “a deathblow to ACGIH and the TLVs, as well as occupational health and safety generally”.

Nominally, the ACGIH is a member-based organization of professionals working towards advancement in worker health and safety. The TLV listing, published yearly by ACGIH, has become a commonly recognized guideline on occupational exposure limits. Norwood says in his letter that the TLVs are inappropriately used by OSHA and MSHA, both agencies within the Department of Labor (DOL), who incorporate the TLVs by reference in their standards. He further states that ACGIH is under the influence of MSHA and OSHA employees, who are ACGIH members and, thus, many ACGIH TLV actions are based on the input from DOL employees. Since ACGIH adopts the TLVs without public input, the process results in “secret lawmaking” and puts DOL employees in a conflict of interest position.

Norwood requests, among other actions, that TLV incorporation by reference be removed from MSHA rules, that ACGIH TLV-based enforcement of generic health and safety standards be prohibited, that DOL expenditures do not support the participation of DOL personnel in any ACGIH activities, and that DOL employees are prohibited from serving on ACGIH boards.

The situation and the current TLV lawsuits are not directly related to any diesel regulations. The ACGIH, however, has proposed a TLV for diesel particulates (currently 20 µg/m3 - EC), which influenced recent US mine health and safety regulations. The importance of ACGIH extends beyond the US, with ACGIH TLVs being explicitly referenced by mine health and safety code in some Canadian Provinces (e.g., Manitoba).

ACGIH is seeking supporters and soliciting donations to its Legal Defense Fund.

Letter from Norwood to Chao
ACGIH continues to defend against TLV lawsuits
Patton Boggs press release
Congress testimony by Henry Chajet

Source: ACGIH, Patton Boggs