The NAM and 3 other associations filed a petition for review 3/31/06 challenging an OSHA regulation that recognizes “threshold limit values” (TLVs) for certain hazardous substances in the workplace. Our dispute centered on the fact that OSHA's regulation adopts the TLVs automatically, without providing the public, including the manufacturing sector, an opportunity to comment on them. OSHA relied on standards developed by a private organization, the American Conference of Governmental Industrial Hygienists (ACGIH), which periodically updates its list of TLVs.
Early in 2006, OSHA incorporated by reference these new values into its hazard communication standard, applicable to manufacturers nationwide. New numbers for carbon disulfide, iron oxide, propylene, crystalline silica and other substances are now in effect, and OSHA can issue citations when companies fail to incorporate these numbers into material safety data sheets in the workplace, even though the numbers have never been reviewed or offered for public comment by OSHA.
The NAM joined together with American Composites Manufacturers Association, Associated Builders and Contractors, Inc. and the Portland Cement Association in the petition. The U.S. Chamber of Commerce has also intervened in the case.
The Secretary of Labor moved to dismiss the case on the grounds that challenges to regulations like the Hazard Communication Standard must be made within 60 days of the date on which the standard was promulgated, in this case many years ago. We countered that by incorporating new requirements by reference, the OSHA regulation does constitute a new regulation each time that ACGIH changes its TLVs.
On May 11, the D.C. Circuit dismissed the NAM's lawsuit, saying that it should have been filed in 1983 when the HazComm standard was promulgated. It ruled that because employers still have to comply with the same HazComm rule, the rule has not changed and there can be no lawsuit challenging it. The court made this decision recognizing that new TLVs impose new obligations on employers, and that employers have no choice but to treat substances on the list as hazardous.
The NAM is very surprised and concerned about this ruling. It allows OSHA to regulate by proxy, turning over the decision on whether substances are hazardous to an outside organization that does not operate with the procedural and legal constraints that apply to all federal regulatory decisions. Whether a substance is hazardous is now in the hands of a group that has no obligations to Congress, the regulated community or the public at large. This kind of third-party regulation without any procedural or substantive restraints could become a surreptitious way for OSHA or other regulatory agencies to avoid statutory requirements for fairness.