THE COHEN GROUP
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The Cohen Group Newsletter - Volume 18  Issue 2, Article 1.  May 2007

TLVs and HazCom
By Joel Cohen, MPH, CIH

On May 11, 2007, a US Court of Appeals sided with Federal OSHA in a key case involving Threshold Limit Values (TLVs) which OSHA recognize, but some industry groups attack as privately developed.

The case, National Association of Manufacturers (NAM) vs. OSHA and Elaine Chao, Secretary of the United States Department of Labor, No. 06-1122, was concerned with how particular chemicals are classified as hazardous.  Rather than attempting to identify every hazardous chemical, the Hazard Communication Standard places primary responsibility for determining which products are hazardous on the manufacturer or importer.  OSHA states that a substance is hazardous if it appears on OSHA’s list of Toxic and Hazardous Substances or if the chemical appears in the latest edition of the TLV list, published by the American Conference of Governmental Industrial Hygienists (ACGIH).   It is this latter criterion that is the crux of the case when five new substances appeared on the 2006 TLV list and other substantial changes were made.

It is clear from the court decision that OSHA’s recognition of the ACGIH TLVs does not re-open or revise the HazCom standard (which would require formal rulemaking).  NAM believes the court decision allows OSHA to regulate by proxy, using the ACGIH TLV process to set standards without a formal comment procedure.  One of the judges wrote in the decision, “With minor exceptions and not relevant here, the Hazard Communication Standard identifies no specific chemicals as hazardous, instead leaving their evaluation to ACGIH and …to regulated entities themselves.”

Note: This article was abstracted from Occupational Health and Safety E-News