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Judge Upholds Right of ACGIH to Publish TLVs

U.S. District Court Judge Hugh Lawson has upheld the right of the American Conference of Governmental Industrial Hygienists (ACGIH) to publish threshold limit values (TLVs) for 1-bromopropane (nPB -- n-propylbromide), copper, silica and diesel exhaust (DPM -- diesel particulate matter).

ACGIH, headquartered in Cincinnati, Ohio, was named as a defendant in lawsuits filed in the United States District Court in Macon, Ga. The initial case, International Brominated Solvents Association and Aerosafe Products Inc. v. ACGIH, Department of Labor (DOL), and Department of Health and Human Services (DHHS), alleges that ACGIH is about to publish or revise TLVs for the substances involved and sought to stop ACGIH from taking any action with regard to these substances. It also alleged that ACGIH is a government advisory committee; that ACGIH is required to follow the provisions of the Administrative Procedures Act (APA) but does not do so; and that ACGIH has published false and misleading information about the products sold by the plaintiffs and interfered with the plaintiffs' business. The National Mining Association filed a complaint to intervene in the case, but limited its concerns to silica, copper and diesel exhaust.

The plaintiffs filed a motion for a temporary restraining order. ACGIH opposed the restraining order, claiming that under the First Amendment to the Constitution it has the right to publish its scientific opinions. The group claimed also that it is not a Federal Advisory Committee and that it is not a government agency and does not have to follow the APA. ACGIH also claimed it has not published false or misleading information.

Following a hearing, the judge denied the plaintiffs' request for a restraining order and in a comprehensive 21-page opinion, Lawson addressed each of the issues raised by the plaintiffs. He concluded that:

  • The plaintiffs do not have standing to bring an action directly under the Federal Advisory Committee Act (FACA).
  • An injunction, if issued, would be a prior restraint on free speech and that ACGIH is entitled to full constitutional protection against prior restraints.
  • Publication of the ACGIH TLVs was not commercial speech or government speech and that the TLVs are fully protected by the First Amendment.

In fact, said Lawson, an injunction against publication of the TLVs "would amount to an abridgement of ACGIH's First Amendment speech rights."

According to ACGIH, the nature of these complaints calls into question the freedom of any party to undertake independent scientific research and publish results. The group claims this threatens the credibility of the occupational hygiene profession and the ability of occupational hygienists to continue their work.

"The nature of the allegations presents a real threat to the ability of professional practitioners to fully protect workers based upon sound and thorough science. These claims are unfounded and are without basis. At stake is the right of any organization or group to express scientific opinions based on their reasoned evaluation and judgment," said Vickie L. Wells, MS, CIH, CSP, chairperson of the ACGIH board. She added that after careful consideration and with the advice of experienced legal counsel, ACGIH has concluded "that a vigorous and thorough defense of ACGIH and the IH profession is necessary." She said the group stands by its policies, procedures and processes, and by its recommended TLVs and "the fairness and thoroughness of the system used in their development and dissemination."

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