DC Appeals Court Upholds OSHA in Case Challenging TLVs

A unanimous panel of three judges from the U.S. Court of Appeals for the District of Columbia Circuit sided with OSHA and the Labor Department today in a key case involving Threshold Limit Values, which OSHA recognizes but some industry groups attack because they are privately developed. OSHA's recognition of updated TLVs does not involve rulemaking and thus does not give stakeholders a chance to oppose them, the National Association of Manufacturers said in National Association of Manufacturers v. OSHA and Elaine Chao, Secretary of the United States Department of Labor, No. 06-1122.

In an opinion written by Judge David S. Tatel, the judges agreed with DOL and dismissed NAM's lawsuit as untimely -- a clear victory for the OSHA/DOL argument that OSHA's recognition of new TLVs issued by ACGIH on Jan. 31, 2006, did not reopen or revise the Hazard Communication Standard itself, which would require formal rulemaking.

Under the OSH Act, parties adversely affected by a safety or health standard have 60 days after promulgation to petition for review. OSHA argued the HazCom standard was enacted in 1983, and NAM's petition for review was filed 20 years too late. The U.S. Chamber of Commerce and other industry groups intervened in the case on the side of NAM, which was challenging five new substances on the 2006 TLV list, nine lowered TLVs, and other changes it considered substantial affecting chemicals made or used by NAM members. Tatel wrote that NAM failed to argue in its opening brief that it lacked a meaningful opportunity to challenge the standard in 1983 or 1987, so the judges did not decide whether they should grant in this case an exception to the 60-day requirement -- an exception this court recognized in a 1985 decision involving EPA.

Quentin Riegel, NAM's vice president, litigation, said he had watched the oral arguments March 28, 2007, and thought they went well. "We were quite surprised and concerned by the decision," he said today. "It sets a dangerous precedent of allowing OSHA to regulate by proxy." The decision allows OSHA to regulate through outside parties that lack OSHA's notice and comment procedures, Riegel said. "There really are new obligations imposed on employers every year" by OSHA's HazCom standard, he added. Riegel said no decision had been made at this point to file a rehearing request or appeal to the U.S. Supreme Court.
 

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