A 'Major Victory' for ACGIH in TLV Litigation

The American Conference of Governmental Industrial Hygienists (ACGIH) is heralding a U.S. District Court's recent decision as a major blow to the organizations that tried to block ACGIH from publishing workplace safety exposure levels for four chemical substances.

U.S. District Judge Duross Fitzpatrick, in a 39-page decision, agreed to dismiss three of the four counts against ACGIH in a lawsuit filed last November in Macon, Ga., by the International Brominated Solvents Associations and other plaintiffs. The plaintiffs allege that ACGIH's threshold limit values (TLVs) for chemical substances and physical agents are illegally adopted, illegally enforced by the federal government and economically oppressive to the businesses they represent.

"For ACGIH, this decision is a major victory," said ACGIH Board Chair Cindy Coe Laseter.

The International Brominated Solvents Association, a non-profit trade association, along with the National Mining Association, AeroSafe Products Inc. and Anchor Glass Container Corp., sought to block ACGIH from proposing, adopting or publishing TLVs for 1-bromopropane (nPB -- n-propylbromide), copper, silica and diesel particulate matter. (The National Mining Association limited its concerns to silica, copper and diesel exhaust.)

Collectively, the four plaintiffs contend that the TLVs for the four substances are adopted by ACGIH and enforced by the Department of Labor in violation of federal and state law.

However, in his decision, Fitzpatrick concluded that:

  • Private litigants do not have the right to enforce the provisions of the Federal Advisory Committee Act, resulting in the dismissal of Count 1 of the complaint.
  • In order for ACGIH to be covered by the provisions of the Administrative Procedures Act, ACGIH must be a federal governmental agency. The facts alleged in the complaint fail to show this and Count 2 is dismissed.
  • In order to establish a cause of action for interference with business relations, plaintiffs must establish that without the interference, those relations were reasonably likely to develop in fact. The plaintiffs' complaint failed to meet this test and Count 4 was dismissed.

"Not only did Judge Fitzpatrick rule that the plaintiffs do not have a private right of action under the Federal Advisory Committee Act and ACGIH does not have to follow the Administrative Procedures Act, but at the end of his opinion he went out of his way to make it extremely clear that ACGIH has a First Amendment right to publish the TLVs, and any attempt to enjoin ACGIH from publishing the TLVs before such activity has occurred is a 'classic example of an impermissible prior restraint,'" said ACGIH General Counsel Steven John Fellman.

After filing the lawsuit against ACGIH and the other defendants in November 2004, the plaintiffs filed a motion for a temporary restraining order against ACGIH in an attempt to thwart ACIGH from taking any action on the proposed TLVs.

ACGIH opposed the restraining order, claiming that, under the First Amendment, it has the right to publish its scientific opinions. The organization also claimed that it is neither a federal advisory committee nor a government agency and therefore does not have to follow the Administrative Procedures Act.

U.S. District Court Judge Hugh Lawson denied the request for a restraining order, citing, among other things, ACGIH's First Amendment rights and the fact that ACGIH is entitled to full constitutional protection against prior restraints.

Fitzpatrick, in his opinion, noted Lawson's previous references to the First Amendment and wrote that he "feels compelled to address" the issue in his concluding remarks.

"At issue there was plaintiffs' attempt to prevent ACGIH from taking any action on the proposed TLVs at its annual board meeting, which was set to take place only a few days after oral argument on the [temporary restraining order] motion," Fitzpatrick wrote. "Plaintiffs wanted the court to prevent ACGIH from engaging in speech-related activity before such activity commenced. That request provided a classic example of an impermissible prior restraint -- i.e. the government enjoining speech before it occurs."

This case is now scheduled to proceed to discovery on one count against ACGIH -- of alleged deceptive trade practices -- and one count against the federal defendants, which include the Department of Labor and Labor Secretary Elaine Chao. ACGIH, however, in a statement said "it should be clear that the major portion of the plaintiffs' complaint against ACGIH has been dismissed."

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