Legal Actions Threaten ACGIH, Occupational Hygiene Profession

The American Conference of Governmental Industrial Hygienists (ACGIH) was served with three separate, unrelated lawsuits last month.

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The American Conference of Governmental Industrial Hygienists (ACGIH), headquartered in Cincinnati, Ohio, has never been sued during its 62-year history but was served with three separate, unrelated lawsuits last month.

Each of these complaints involve the Chemical Substance Threshold Limit Values (TLVs).

ACGIH says two of the lawsuits put the future viability of ACGIH, and its work in promulgating practice guidelines, at risk.

However the association said these law suits more importantly call into question the freedom of any party to undertake independent scientific research and publish results.

"This threatens the credibility of the occupational hygiene profession, and the ability of occupational hygienists to continue their occupational health work," said ACGIH.

The ACGIH Board of Directors, along with other volunteers, some who are members of the CS-TLV Committee, and ACGIH staff have concluded that a vigorous defense of ACGIH and its members is essential if they are to continue to progress in the cause of worker health and safety.

Board Chair, Scott E. Merkle, CIH, said, "The nature of the allegations brought in these actions brings a real threat to the ability of professional practitioners to fully protect workers based upon sound and thorough science. These allegations are unfounded and are without basis. Nonetheless, any adverse judgment in these cases could very well dampen, if not silence, the dissemination of the results of credible research by all scientists in all fields of endeavor. At stake is the right of any organization or group to express scientific opinions based on their reasoned evaluation and judgment. These cases threaten our right to free speech as granted in the First Amendment to our Constitution."

Merkle continued, "After careful consideration and with the advice of experienced legal counsel, we have concluded that a vigorous and thorough defense of ACGIH and the IH profession is necessary. There is no alternative. We stand by ACGIH and the significant contributions it has made for over half a century. We stand by our TLV Committee. We stand by our policies, procedures, and processes. We stand by our recommended Threshold Limit Values, and we stand by the fairness and the thoroughness of the system used in their development and dissemination."

The bases for the allegations of the three lawsuits vary to the extent that a separate legal defense has been mounted for each one.

The substances involved are sodium sesquicarbonate (trona), synthetic vitreous fibers (specifically refractory ceramic fibers (RCF)) and vinyl chloride.

In the trona case, the plaintiffs (Anchor Glass Container Corp.; FMC Corp.; The General Chemical Group Inc.; OCI Chemical Corp., Solvay Minerals, and the Wyoming Mining Association) argue that ACGIH is a Federal Advisory Committee, and should, therefore, be subject to the rules and procedures mandated in the Federal Advisory Committee Act, which was passed by Congress in 1972.

ACGIH said it defends its position that it is not a federal advisory committee, and the plaintiffs have developed this strategy "in an effort to squelch the dissemination of credible, scientific evidence on trona."

Other defendants in this case are the Department of Labor and the Department of Health and Human Services. This action is brought in Federal District Court in Macon, Ga.

In the second case, the plaintiffs (the Refractory Ceramic Fibers Coalition; Thermal Ceramics Inc.; Unifrax Corp.; and Vesuvius U.S.A. Corp.) allege that the research undertaken by ACGIH members is flawed, and that the conclusions that have been approved at several levels, and ultimately ratified by the Board of Directors, are wrong.

The plaintiffs seek to have an ACGIH TLV that is higher than ACGIH believes is warranted based on science.

Moreover, the plaintiffs seek to restrain ACGIH from publishing the TLV for RCF that was recommended by the CS-TLV Committee and ratified by the Board of Directors.

The complaint, filed in Federal District Court in Atlanta, Ga., seeks substantial monetary damages. It alleges an inappropriate relationship, if not a conspiracy, between ACGIH and the Federal government on the recommended TLVs.

The third lawsuit is brought by the family of a worker who was exposed to vinyl chloride over a period of time.

Along with ACGIH, defendants include more than 20 chemical and other manufacturing companies, and other not-for-profit groups such as the Society of the Plastics Industry.

The plaintiff alleges that ACGIH and others conspired to withhold evidence regarding vinyl chloride. ACGIH maintains that there is no truth to this allegation. This action is brought in the 23rd Judicial District Court of Brazoria County, Texas.

"ACGIH has acted within all legal requirements in developing and publishing TLVs. It has every right and responsibility to defend its position, said ACGIH General Counsel Steven John Fellman of Galland, Kharasch, Greenberg, Fellman & Swirsky, P.C. in Washington, D.C. "Beyond my commitment to continue a thorough and reasoned defense of ACGIH, its members and the industrial hygiene profession, my concerns extend to similar not-for-profit, voluntary, membership organizations in other fields of endeavor which disseminate recommendations and practice guidelines intended to protect people from injury and death."

Fellman and his associates are working primarily on the RCF case. Additional legal counsel was retained in Macon and Atlanta, Ga., and in Texas for ACGIH''s defense.

ACGIH Executive Director Richard A. Strano, CAE, noted, "Since Dec. 1, these unwarranted actions have consumed a great deal of precious time and effort, both among our key, dedicated volunteers and our staff. The Trona case and the RCF case are precedent-setting ones, and require our full and concerted attention. I am confident that the extended efforts of our board of directors, committee and other ACGIH members, staff, and legal counsel , will result in a full exoneration of ACGIH and the TLVs, and the value they both bring to society throughout the world."

by Virginia Sutcliffe

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