Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.


RODERICK A. DeARMENT               )
                    Complainant,   )
               v.                  )  Inspection
                                   )  No. 110318540
  Channelview Plant                )
  Channelview, Texas               )
                    Respondent.    )


ARCO Chemical Company ("ARCO") and the Occupational Safety and Health Administration ("OSHA"), in Settlement of the above citations and proposed penalties which were issued on January 3, 1991, hereby agree as follows:

1. ARCO agrees to correct the conditions cited in the above citations by conducting process hazard analysis at all its corporate facilities, located in Channelview, Texas, Bayport, Texas, Pittsburgh, Pennsylvania, and Painesville, Ohio.

2. The process hazard analyses shall 1) provide a systematic approach to identifying, evaluating, and controlling processes involving highly hazardous chemicals; 2) evaluate a plant's management structure; 3) recommend corrective action, and 4) develop emergency response coordination. The process hazard analyses shall be conducted using a methodology accepted by recognized industry authorities, and shall be designed to identify deficiencies and recommend improvements. The process hazard analyses shall be performed by teams with expertise in engineering and process operations, and the teams shall include at least one person with experience and knowledge specific to the process being evaluated. The process hazard analyses shall focus particular attention on the following elements:

          o    human factors analysis
          o    redundancy of critical instrumentation
          o    design and control of nitrogen pads/sweeps over
                petrochemical-containing tanks
          o    proper classifications of hazardous locations
          o    control over introduction of ignition sources
                into hazardous locations
          o    training of operators and maintenance personnel;
                development of SOP's; HAZCOM training
          o    assignment of authority and responsibility to
                personnel to identify and correct hazardous
If generally accepted process data and documentation are not available at the time of the process hazard analysis, the audit team may use the best available data and documentation.

3. ARCO further agrees to establish a management system to promptly address the findings of each process hazard analysis and develop appropriate recommendations. This management system shall 1) document any actions taken pursuant to a process hazard analysis, 2) communicate such actions to operating, maintenance, and other employees who work in the facility, as well as any contractor employees who are affected by the findings and recommendations of the process hazard analysis, and 3) assure that any corrective actions are implemented according to the timetable set out in # 6 below.

ARCO management shall prepare written responses to each process hazard analysis. If upon consideration of the recommendations contained in the process hazard analyses, management determines that corrective action is required, such action shall be taken. If management disagrees with a hazard assessment contained in a process hazard analysis, the written response shall explain and justify the disagreement. If management disagrees only with a recommendation for corrective action, the written response shall explain management's reasons for not following such recommendation.

In the event that OSHA disagrees with a management action taken pursuant to this paragraph, the dispute resolution procedures set out in # 11 below shall take effect.

4. Within 30 days after execution of this agreement, ARCO shall provide each OSHA Area Office with jurisdiction over a covered ARCO facility with the name of a management contact person for that facility. The management contact person for each facility shall meet with the appropriate OSHA Area Director by March 1, 1991, and as necessary thereafter to discuss activities undertaken by the facility pursuant to this Agreement. Such meetings can be requested by OSHA or ARCO.

5. ARCO further agrees to provide to the OSHA Area Office with jurisdiction over each facility a verified copy of the process hazard analysis and management's written response for the facility and to discuss with OSHA any comments or recommendations the Area Office may have.

6. ARCO further agrees to conduct the process hazard analyses required by this Agreement, provide copies of the process hazard analyses and management responses to OSHA, and implement any corrective actions contained in or arising from such process hazard analyses in accordance with the following timetable:

               TASK                          COMPLETION DATE
1.  Assembly of process hazard          30 days from execution of
    analysis staff for each             Agreement.

2.  Completion of process hazard        270 days from execution
    analysis at each facility.          of Agreement.

3.  Provide OSHA Area Office with       270 days from execution
    process hazard analysis for         of Agreement.
    facility in their jurisdiction.

4.  Provide OSHA Area Office with       30 days from completion
    written management response to      of process hazard
    process hazard analysis.            analysis.

5. Implement actions recommended        As soon as practicable,
   by process hazard analyses           but in no event later
   and/or written management            than one year from
   responses.                           completion of step 3.
7. Arco further agrees that, on or before the scheduled completion date of each of the above numbered tasks, it will verify by letter to the respective OSHA Area Office that the task has been completed as scheduled. The parties agree that in the event ARCO is unable to timely complete Tasks No. 2, 3 or 5 in the above schedule, OSHA will consider a timely-submitted petition for modification of the abatement period.

8. ARCO further agrees to engage the services of an independent third party consultant of its choosing to verify, in a written process hazard analysis, that the design and operation of the wastewater utilities area at the Channelview plant complies with recognized industry standards. This process hazard analysis and verification will be completed as soon as possible but in no event longer than six months from the execution of this Agreement. The process hazard analysis will address all operations within the Channelview wastewater utilities area, with particular attention to the factors identified in # 2 of this Agreement. Upon completion, this process hazard analysis will be promptly forwarded to the Houston OSHA Area Office.

9. No later than six (6) months following ARCO's verification that it has completed all the actions enumerated in # 1-6 above, OSHA shall return to ARCO all copies of ARCO process hazard analyses and written management responses. OSHA shall not thereafter retain any such copies.

10. All documents or other information made available by ARCO under this Agreement shall be handled pursuant to Section 15 of the Act (29 U.S.C. 664), 18 U.S.C. 1905, and 29 C.F.R. 1903.9. ARCO shall have the obligation to identify the document, information, or portion thereof, that contains proprietary or confidential material. No document or information that is proprietary or confidential shall be made available to the public by OSHA, directly or indirectly, in any form whether by SUMMARY, analysis,. or verbatim except as required by the Freedom of Information Act or other law.

11. If OSHA disagrees with ARCO's determination of 1) the assessment of a process safety hazard, 2) the need for corrective action, or 3) what constitutes a practicable timeframe for implementing corrective action, OSHA will state its points of disagreement, and the reasons therefor, in writing so that ARCO may review them. OSHA and ARCO will then engage in good faith discussions to resolve the disagreement. This paragraph is not intended to limit OSHA's right to use, as appropriate, enforcement methods provided by the OSH Act.

12. ARCO further agrees to pay the penalties of $3,481,300 issued with the above citations no later than January 10, 1991. In entering into this Agreement, ARCO waives its right to contest the citations and abatement dates pursuant to 10(a) of the act.

13. Neither ARCO's signing of this Agreement, its consent to entry of a final order, nor ARCO's payment of any penalty constitutes an admission by ARCO of any violation of the Occupational Safety and Health Act, regulations or standards promulgated thereunder. This Agreement shall not be used or admitted in evidence in any proceeding or litigation, whether administrative, civil, or criminal, other than proceedings brought by OSHA. This Agreement shall not be construed as an admission of fault or liability as to any claim or proceeding which exists, has existed, or may in the future arise or be pursued by any person, agency, or entity. ARCO is entering into this Agreement without any prejudice to its rights to raise any defense or argument in any future or pending cases before the Occupational Safety and Health Review Commission or in any other proceeding or litigation, except for proceedings to enforce this Agreement. By entering into this Agreement, ARCO does not admit the truth of any facts alleged, of any characterizations of ARCO's alleged conduct, or any of the conclusions set forth in the above-referenced citations issued in this matter. This Agreement creates no right or obligation to or in any third party not a signatory to the Agreement.

14. OSHA agrees not to issue citations to ARCO for any working conditions identified in the process hazard analyses required by this Agreement provided such conditions are being or will be addressed in good faith in accordance with this Agreement (including correction, if necessary).

15. ARCO represents that there is no authorized employee representative for the employees affected by the working conditions addressed by the citation and this Agreement at the Channelview plant. ARCO shall provide this Agreement to affected employees by posting it, alongside the citation, on bulletin boards at the Channelview plant where employees normally receive important information.

16. Each party agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.

Dated:    January 3,  1991
For ARCO Chemical Company          For U.S. Department of Labor,
                                   Occupational Safety and Health

_____________________________      _____________________________
HARRY W.  GILL, JR., Esq.          ALAN C. McMILLAN
Vice President and Counsel         Deputy Assistant Secretary
ARCO Chemical Company
Newtown Square, Pennsylvania

_____________________________      _____________________________
THOMAS M. MELD, Esq.               SUE ANN WOLFF, Esq.
B. THOMAS COOK, Esq.               Senior Trial Attorney
Bracewell and Patterson            Office of the Solicitor
Houston, Texas                     Washington, D.C.

                                   NICHOLAS J. LEVINTOW
                                   Trial Attorney
                                   Office of the Solicitor
                                   Washington, D.C.

                                   JAMES E. WHITE
                                   Regional Solicitor

                                   JACK F. OSTRANDER

                                   V. DENISE DUCKWORTH
                                   Trial Attorney

                                   MARY E. WITHEROW
                                   Trial Attorney
                                   Office of the Solicitor
                                   Dallas, Texas

RODERICK A. DeARMENT              )
                    Complainant,  )
               v.                 )  Inspection
                                  )  No. 110318540
  Channelview Plant               )
  Channelview, Texas              )
                    Respondent.   )

This memorandum confirms the understanding between ARCO Chemical Company ("ARCO") and the Occupational Safety and Health Administration ("OSHA") regarding the privileged nature of certain documents which will be generated in connection with the Settlement Agreement entered this day with respect to citations issued as a result of Inspection No. 110318540. The process hazard analyses and the responses described in this Settlement Agreement are required to be made to OSHA. ARCO claims a privilege to refuse to disclose, and to prevent any other person from disclosing, the content of such reports and responses to anyone other than OSHA. OSHA has a privilege to refuse to disclose the content of such reports and responses to anyone, except to the extent required by law. The submission of any report which has been created under an attorney/client or work product privilege shall not be deemed to waive such privilege or be admissible as evidence in any private civil suit, including personal injury or property damage lawsuits.

Date:     January 3,  1991

For ARCO Chemical Company:         For Occupational Safety
                                   and Health Administration:

___________________________        ____________________________
Harry W. Gill, Jr.                 Sue Ann Wolff
Vice President and Counsel         Senior Trial Attorney