___________________________________ ) BIG RIVER MINERALS CORPORATION, ) ) Petitioner, ) ) v. ) Docket No. 92-3132 ) ROBERT REICH, U.S. SECRETARY OF ) LABOR, AND OCCUPATIONAL SAFETY AND ) HEALTH ADMINISTRATION, ) ) Respondents. ) ___________________________________)
Pursuant to Federal Rule of Appellate Procedure 42(b), Petitioner Big River Minerals Corporation (Big River) and Respondents Robert 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 Exposure to Cadmium (29 CFR 1910.1027, 57 Fed. Reg. 42102 et seq., September 14, 1992) (Cadmium Standard); and
WHEREAS, Big River has petitioned for review of the Cadmium Standard in the above-captioned proceeding; and
WHEREAS, Big River and OSHA wish to resolve certain issues relating to the Cadmium Standard and thereby settle this proceeding;
THEREFORE, Big River and OSHA agree as follows:
1. OSHA agrees that Big River may include in its Compliance Plan for the Cadmium Standard the provisions set forth in Appendix A to this Agreement, and that compliance by Big River with each such provision shall constitute compliance by Big River with the specified requirements of the referenced paragraphs and subparagraphs of the Cadmium Standard to which such provision relates, as set forth in Appendix A.
2. Big River 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 Big River petition with prejudice.
3. Big River 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 Big River petition.
IN WITNESS WHEREOF the parties have executed this Agreement as of the 19th day of March, 1993.
BIG RIVER MINERALS CORPORATION By_________________________________ Edwin H. Seeger, its Attorney ROBERT 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)(1) 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. The boundaries of regulated areas need not extend to broader areas in which employee exposure levels are at or below the PEL, such as the Leach-Purification and Roaster-Acid Plants, the Cell Room and the Casting and Yard areas, as described by Big River.
2. Exposure Monitoring. In order to meet the requirements of paragraphs (d)(1) and (d)(2), authorizing the use of historic monitoring data to determine whether an employee is exposed above the action level ("AL"), Big River may use its relevant historic monitoring data, even if the monitoring was performed prior to September 14, 1991, so long as: a) the monitoring data otherwise satisfy all the requirements in paragraphs (d)(1)(ii) and (iii) and (d)(2)(ii); and b) the data are clear and consistent; provided, however, that, where employees in the same job classification, in the same work area, subject to cadmium exposures of similar duration and level perform the same job tasks on two or more shifts, historic data or current monitoring results for an employee's exposure levels on one shift may be used to represent employee exposure levels in those jobs on other shifts if the data or results are obtained from the shift where the exposure levels for the job are or are likely to be the highest.
3. 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. 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 with respect to compensating employees for the time involved in the taking of such showers.
4. Lunchroom Facilities.
(a) Lunchroom tables. In order to comply with the requirement of 29 C.F.R. 1910.1027(j)(4)(i) for cleanliness of tables in lunchrooms, the company will maintain the surfaces of tables in lunchrooms and in breakrooms where meals are regularly eaten in as clean condition as is reasonably practicable. In the case of Big River, this means that tables should be thoroughly wet-wiped at least every three hours during any period of continuous use. For non-continuous use, tables shall be thoroughly wet-wiped before being used.
(b) Lunchroom Air Concentrations. In order to comply with the requirement of paragraph (j)(4)(i) concerning employee exposure to cadmium in lunchrooms, Big River will ensure that no employee in a lunchroom or in a breakroom where meals are regularly eaten is exposed at any time to a level of cadmium in air exceeding 2.5 ug/m3, as measured by area sampling.
(c) Protective Clothing. In order to comply with the requirement of paragraph (j)(4)(ii) concerning lunchrooms and surface cadmium on protective clothing, Big River will either: (i) take appropriate steps to assure that employees remove protective clothing before entering lunchrooms or breakrooms where meals are regularly eaten; or (ii) install HEPA vacuuming or air showers that remove cadmium dust without dispersing it to remove surface cadmium from protective clothing worn by such employees.
5. Biological Monitoring in General. Before taking any action required by a single biological monitoring result under paragraph (l), if Big River has good reason to believe that the first result cannot be representative of the employee's levels of cadmium or B-2M in urine or cadmium in blood and the company documents that reason, the company may promptly conduct a second test. If the results of the second test would not require the action, then Big River need not take that action. Otherwise, the action must be taken within the time period specified in the applicable provision of paragraph (l) measured from the date of receipt of the results of the first test, except that any such time period of two weeks or less shall be measured from the date of receipt of the results of the second test.
6. Medical Surveillance--Previously Exposed Employees. 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 2.5 ug/g Cr, B(2)-M level to be at or below 250 ug/g Cr, and CdB level to be at or below 4 ug/Lwb; (b) the employee has not been exposed at the company to concentrations of airborne cadmium in excess of 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 above the PEL on a total of more than 30 days during the most recent three years; and (d) a company-designated physician determines that further medical surveillance of the employee is not required to protect the employee's health. Big River may rely on its historic monitoring data, as provided in paragraph 2, above, for purposes of satisfying conditions (b) and (c).
7. Medical Surveillance--Additional Tests. Under paragraph (l)(4)(ii)(I) of the standard, the examining physician may only require additional tests whose purpose is to assess medical conditions that may reasonably be related to cadmium exposure.
8. Powered Air Purifying Respirators (PAPRs). In order to comply with the requirement of paragraph (g)(2)(ii), concerning the provision of PAPRs to employees who choose to wear PAPRs but are not required by the standard to do so, Big River will make reasonable efforts to assure that PAPRs are provided in a timely fashion to all employees who request them and are entitled to them. The company will do so as soon as the company has determined through a brief trial use that particular employees do intend to use them. These efforts shall include the following: a) by March 22, 1993, Big River will provide at least 12 PAPRs for a two-week trial to at least the first 12 employees who make a request to wear such respirators and are entitled to do so; b) at the end of the two weeks, Big River will determine whether each of those employees still wishes to wear a PAPR; c) As quickly as possible thereafter, Big River will supply each of those employees with a PAPR; d) Big River will then provide PAPRs for a two-week trial to the next batch of employees who make a request to wear such respirators and are entitled to do so; e) Big River will continue this process until all employees who wish to wear a PAPR and are entitled under the standard to do so are provided with a PAPR. In any event, Big River shall provide PAPRs to all such employees by no later than August 14, 1993.
9. Initial Medical Examination. As stated in paragraph (l)(2)(iii) of the cadmium standard, where a recent medical examination that complies with the requirements of paragraph (l)(2)(ii) of that standard is used instead of an initial examination, the prior examination shall be treated as if it were an initial examination for purposes of paragraphs (l)(3) and (4) of that standard.
10. Dates In lieu of particular compliance deadlines established in paragraph (p) of the cadmium standard, Big River will:
(a) By April 15, 1993, complete initial air monitoring required by paragraph (d)(2) of the cadmium standard for those employees whose cadmium exposure levels cannot be determined by use of historical data in accordance with paragraph 2, above, of this Compliance Plan;
(b) By April 15, 1993, complete the establishment of regulated areas as required by paragraph (e) of the cadmium standard;
(c) By July 30, 1993, complete the establishment of temporary regulated areas as provided for in paragraph 1, above, of this Compliance Plan;
(d) By April 15, 1993, complete the initial examination required by paragraph (l)(2) of the cadmium standard for all employees who have not been examined in accordance with the requirements of paragraph (l)(2)(ii) of that standard within the past 12 months;
(e) By May 15, 1993, complete the initial information and training program required by paragraph (m)(4) of the cadmium standard for employees identified pursuant to paragraph 10(a), above, of this Compliance Plan; and by August 31, 1993, complete that same initial program for employees identified pursuant to paragraph 10(c), above, of this Compliance Plan; and
(f) By May 15, 1993, complete the provision of respirators required by paragraph (g) of the cadmium standard, except as provided in paragraph 8, above, of this Compliance Plan.