_____________________________________ ) AMERICAN IRON AND STEEL INSTITUTE, ) Petitioner ) ) v. ) Docket No. 92-3091 ) ROBERT B. REICH, U.S. SECRETARY OF ) LABOR, AND OCCUPATIONAL SAFETY AND ) HEALTH ADMINISTRATION, ) Respondents ) _____________________________________)
Pursuant to Federal Rules of Appellate Procedure 42(b), Petitioner American Iron and Steel Institute ("AISI") and Respondents Robert B. Reich, U.S. Secretary of Labor, and Occupational Safety and Health Administration ("OSHA") agree that this proceeding shall be dismissed, each party to pay its own costs and fees.
WHEREAS OSHA has promulgated an Occupational Safety and Health Standard for Occupational Exposure to Cadmium (29 C.F.R. 1910.1027, 57 Fed. Reg. 47102
et seq., September 14, 1992)("Cadmium Standard"), and
WHEREAS AISI has filed a petition for judicial review of the Cadmium Standard, which petition is pending before the United States Court of Appeals for the Eleventh Circuit as No. 92-3091 ("AISI Petition"), and
WHEREAS AISI and OSHA wish to resolve certain issues relating to the Cadmium Standard in order that the AISI Petition may be dismissed,
THEREFORE, AISI and OSHA agree as follows:
1. OSHA agrees that any company in the iron and steel industry (Standard Industrial Classification Industry No. 3312) may include in its compliance program for the Cadmium Standard any one or more of the provisions set forth in Appendix A to this Agreement and that compliance by such company with each such provision so included constitutes compliance with the specified requirements of the referenced paragraphs and subparagraphs of the Cadmium Rule to which such provision relates, as set forth in Appendix A, and with the corresponding terms of any applicable State plan approved by the Secretary of Labor pursuant to Section 18 of the Occupational Safety and Health Act, 29 U.S.C. 667.
2. AISi agrees that by March 22, 1993, it will file with the United States Court of Appeals for the Eleventh Circuit a motion to dismiss the AISI Petition with prejudice.
3. AISI and OSHA each agrees to bear its own attorney fees, costs and other expenses incurred in connection with these proceedings up to and including the filing of the motion to dismiss the AISI Petition.
IN WITNESS WHEREOF the parties have executed this Agreement as of the 19th day of March, 1993.
AMERICAN IRON AND STEEL INSTITUTE By _____________________________________________ Edwin H. Seeger, its Attorney ROBERT B. REICH, U.S. SECRETARY OF LABOR AND OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION By _____________________________________________ Charles E. Adkins Director of Health Standards Programs Occupational Safety and Health Administration
1. Regulated Areas. In order to comply with the requirement of 29 C.F.R. 1910.1027(e)(i) for the establishment of "regulated areas," the company will establish such an area wherever an employee's exposure to airborne cadmium is or can reasonably be expected to exceed the PEL. A temporary regulated area may be established when a task performed by an employee in an area not already designated a regulated area may reasonably be expected to expose that employee in excess of the PEL only while the employee is performing that task.
2. Showers. In order to comply with the requirement of 29 C.F.R. 1910.1027(j)(3)(i) for showers, the company will take appropriate steps to assure that employees who are exposed to cadmium above the PEL on any given day take showers after their exposure to cadmium has ceased and before leaving the company's facility. With respect to compensating employees for the time involved in the taking of such showers, the company will comply with its applicable collective bargaining agreement to the extent authorized in the Fair Labor Standards Act and the Portal- to-Portal Pay Act.
3. Lunchroom tables. In order to comply with the requirement of 29 C.F.R. 1910.1027(j)(4)(i) for cleanliness of lunchroom tables, the company will maintain the surfaces of such tables in as clean condition as is reasonably practicable. At a minimum, either (a) the amount of cadmium on a wipe sample of a table surface taken in accordance with Chapter 2 of CPL 2-2.20B shall be undetectable, or (b) tables shall be thoroughly wet- wiped at least every four hours during any period during which the lunchroom is continuously open and available for use, and, during periods of non-continuous availability, tables shall be thoroughly wet-wiped before being used.
4. Medical Removal Protection. In order to comply with the requirements of 29 C.F.R. 1910.1027(l)(3)(ii)-(iv) for medical removal of exposed employees, the company, effective March 22, 1993, shall mandatorily remove any employee subject to medical surveillance to a job having airborne cadmium exposure below the action level whenever biological monitoring test results show either:
(a) B(2)-M level to be above 300 ug/g Cr coupled with either CdU level above 3 ug/g Cr or CdB level above 5 ug/lwb; or
(b) CdU level to be above 7 ug/g Cr or CdB level to be above 10 ug/lwb or B(2)-M level to be above 750 ug/g Cr.
This compliance program eliminates the physician's obligation under paragraphs (l)(3)(ii)-(iv) to determine in writing whether an employee should be medically removed when the employee's biological monitoring results are above the limits specified in paragraph (l)(3)(i) and below the limits specified in paragraphs (l)(3)(iii) and (l)(3)(iv)(C). It does not, however, in any way affect the ultimate discretion that a physician must have to remove workers for medically sufficient reasons as specified in paragraph (l)(11)(i)(A).
5. Currently Exposed Workers. In order to comply with the requirements of 29 C.F.R. 1910.1027(l)(3)-(5) for medical surveillance of "currently exposed" employees, the company will provide such surveillance to each employee who is or may be exposed to cadmium at or above the action level only during any period of time in which such employee is or will be so exposed on 30 or more days in the course of twelve consecutive months. Nothing in this provision affects the company's obligation to comply with paragraphs (l)(3)-(5) when the results of a biological monitoring test of an employee who was currently exposed at the time of the test but is no longer currently exposed exceed the levels specified in paragraph (l)(3)(i). Moreover, nothing in this provision affects the company's obligation to provide termination of employment examinations in accordance with paragraph (l)(8).
6. Previously Exposed Workers. In order to comply with the requirement of 29 C.F.R. 1910.1027(l)(4)(v)(A) on discontinuation of medical surveillance of "previously exposed" employees (as defined in paragraph (l)(1)(i)(B)), the company need not conduct additional biological monitoring of an employee whenever:
(a) the initial biological monitoring tests show the employee's CdU level to be at or below 3 ug/g Cr, B(2)-M level to be at or below 300 ug/g Cr, and CdB level to be at or below 5 ug/lwb;
(b) the employee has never held a job at the company for which airborne cadmium exposure exceeded an eight-hour time- weighted-average of 25 ug/m(3);
(c) the employee has not held a job at the company with airborne cadmium exposure at or above the action level at any time during the most recent five years; and
(d) a company-designated physician determines that further medical surveillance of the employee is not required to protect the employee's health.
7. Container Labeling. In order to comply with the requirement of 29 C.F.R. 1910.1027(m)(3) for the labeling of shipping and storage containers, the company shall:
(a) with respect to protective clothing and equipment required by paragraph (i)(1), comply with paragraph (i)(2)(iv) by placing the prescribed label on bags or containers of contaminated protective clothing and equipment that are to be taken out of the change rooms or the workplace for laundering, cleaning, maintenance, or disposal; and
(b) place the prescribed label on any container containing cadmium, cadmium compounds, or cadmium-contaminated waste, scrap, debris or other clothing or equipment where the cadmium concentration of the contained materials is 0.1 percent or more and there is potential for cadmium release.
8. Employee Training. In order to comply with the requirement of 29 C.F.R. 1910.1027(m)(4) for training, the company will provide training to all employees who are assigned to work areas in which there is potential occupational cadmium exposure, in the following manner:
(a) initial training for all such employees through the distribution of an informational fact sheet briefly describing the hazards of cadmium exposure, the operations in the employer's facility that lead to cadmium release, and the measures employees can take to protect themselves from cadmium exposure (including modification of such habits as smoking and personal hygiene);
(b) initial training to each employee whose reasonably foreseeable cadmium exposure will exceed 20% of the action level but will be below the action level, through the provision of "low exposure training" as hereinafter defined;
(c) annual training to each employee whose reasonably foreseeable cadmium exposure will exceed 30% of the action level but will be below the action level, through the provision of "low exposure training" as hereinafter defined;
(d) initial and annual training in accordance with paragraph (m)(4)(iii) to each employee whose reasonably foreseeable cadmium exposure will be at or above the action level.
"Low exposure training" will consist of training that covers the subject matter of paragraph (m)(4)(iii)(A), (B), and (D) to the extent necessary to inform the employees about the nature of the cadmium hazard and about ways to minimize the employees' exposure to cadmium in order to facilitate their voluntarily taking preventive steps to protect themselves. Employees' reasonably foreseeable cadmium exposures may be determined on the basis of the type of objective data referenced in paragraph (n)(2).