1) Updates on Lawsuits Filed Against ACGIH®
As reported in the most recent issue of Today!, ACGIH® continues to vigorously defend itself against three separate and unrelated lawsuits, all of which were filed during December 2000. The Chemical Substance TLVs® are the subject of all three of the suits. Working with ACGIH® general counsel in Washington, D.C., and with additional law firms in Texas and in Atlanta and Macon, Georgia, ACGIH® has no choice but to defend itself against these unwarranted attacks on the credibility of its TLVs®. Because the TLVs® are internationally recognized and used throughout the world, the successful conclusion of these cases is essential to the continuing efforts to protect workers everywhere.
To date, ACGIH® has prevailed in quashing the attempts of two of the plaintiffs to impose Temporary Restraining Orders that would have precluded publication of the 2001 TLVs® and BEIs®. Subsequently, the Annual Report of the TLV® Committee was distributed with the most recent issue of Today!, and the 2001 TLVs® and BEIs® are being prepared for shipment to members and customers.
An updated summary of each of the three cases follows:
ANCHOR GLASS CONTAINER CORP., et. al. vs. ACGIH®, U.S. DOL, and U.S. DHHS
This action is brought by the producers and users of trona. It seeks to prohibit ACGIH® from publishing a trona TLV®, and from holding meetings to discuss trona. The Complaint argues that ACGIH® is a quasi-governmental, standard-setting organization. The Department of Labor (OSHA), and the Department of Health and Human Services (NIOSH) are included because of their alleged reliance upon, and use of TLVs®, and because employees of OSHA, MSHA, and NIOSH are members of ACGIH®.
The Plaintiffs argue that ACGIH® serves as an advisory committee to DOL and HHS, but has never complied with the requirements of the Federal Advisory Committee Act (FACA), and therefore, cannot be permitted to adopt a trona TLV®. Further, DOL and HHS cannot use or rely on a TLV® for trona. They argue that publication of the trona TLV® will mislead employees and consumers about safe levels of trona exposure, and that they will be irreparably damaged by such publication. They seek monetary damages from ACGIH®.
Most recently, the Federal Court in Macon denied plaintiffs' motion for expedited discovery by ruling that the Court will first come to a decision on ACGIH®'s Motion to Dismiss, and will then consider plaintiffs' Motion for Expedited Discovery. ACGIH® attorneys argued, based on case law, that the Court must first rule on the ACGIH® motion to dismiss the case before proceeding to discovery. The ACGIH® Motion to Dismiss is based on its firm conclusion that ACGIH® is not a Federal Advisory Committee, and is not bound by the Federal Advisory Committee Act. The motion to dismiss is also premised on First Amendment issues, and the right of ACGIH® and all scientific researchers who render credible opinions and recommendations, to continue to do so.
A ruling on ACGIH®'s Motion to Dismiss will not be made until April 2. If the Motion to Dismiss is denied, discovery will commence and must be completed by July 1. A tentative trial date has been set for September 4 in Atlanta.
On February 28, ACGIH® received Plaintiffs' response to its Motion to Dismiss. Over 50 pages long, it includes serious misstatements of fact regarding ACGIH®, its history, its governing body, and the TLV® Committee. ACGIH® Staff is preparing a detailed analysis of the factual errors contained in the filing for review and filing by legal counsel.
CARLIN DAVID STAPLES, et. al. vs. DOW CHEMICAL COMPANY, et.al.
Mr. Staples is a 38-year-old worker who has six children, and is seriously ill with brain cancer. ACGIH® was not named in the initial action, but was added as a defendant in a subsequent Amended Petition. Mr. Staples was exposed to vinyl chloride monomer from December 1982 until October 1997.
ACGIH® is included as a defendant, under a conspiracy theory, for fraudulently concealing evidence and for spoilage of evidence. The Plaintiffs seek punitive damages and compensatory damages.
In January, ACGIH® filed a Motion to Dismiss this case based on the fact that ACGIH® is not a Texas Corporation and does not do business in Texas; that ACGIH® was added as a defendant subsequent to the Court's established deadline for such an Amended Petition; and that ACGIH® engaged in no conspiracy to conceal or spoil evidence, or to do so at its own initiative. The Motion to Dismiss is pending.
REFRACTORY CERAMIC FIBERS COALITION, et.al vs. ACGIH®
The plaintiffs allege that ACGIH® is a standard-setting organization, and that the TLV® for RCF is unreasonable and unjustified. RCFC argues that its own Recommended Exposure Guideline (REG) is based on the principle that it is prudent to reduce RCF levels to the maximum feasible extent, and is set at the lowest level that appears feasible. It also notes conflicts of interest due to the involvement in the TLV® process of federal employees and employees of labor unions. RCFC asks the Court to enjoin ACGIH® from studying RCF, and from publishing its TLV®. It also seeks the assessment of damages.
On January 12, 2001, the United States District Court in Atlanta held a hearing on RCFC's request for a Temporary Restraining Order enjoining ACGIH® from publishing the RCF TLV®. After viewing the legal briefs filed by both parties and listening to counsel for both parties, the Court denied RCFC's request, finding that it does not appear that RCFC is likely to win. ACGIH® is free to publish the TLV® for RCF.
Based on the January 12th ruling, which was very favorable to ACGIH®, the parties have begun to discuss settlement of the litigation.