_________________________________ ) COURTAULDS FIBERS INC., ) ) Petitioner, ) ) v. ) Case No. 89-7073 ) (Eleventh Circuit) OCCUPATIONAL SAFETY AND HEALTH ) ADMINISTRATION, UNITED STATES ) DEPARTMENT OF LABOR, ) ) Respondent. ) _________________________________) ) INTER-INDUSTRY COMMITTEE ON ) CARBON DISULFIDE, ) ) Petitioner, ) ) v. ) Case No. 89-7184 ) (Eleventh Circuit) OCCUPATIONAL SAFETY AND HEALTH ) ADMINISTRATION, UNITED STATES ) DEPARTMENT OF LABOR, ) ) Respondent. ) _________________________________)
The parties to this Settlement Agreement are the Inter-Industry Committee on Carbon Disulfide ("Inter-Industry Committee"),(1) Courtaulds Fibers Inc. ("Courtaulds"), and the Occupational Safety and Health Administration, United States Department of Labor ("OSHA").
________ FOOTNOTE(1) The Companies that are members of the Inter-Industry Committee are: Akzo Chemicals, Inc., BASF Corporation, Fibers Division, Courtaulds Fibers Inc., Dexter Corporation, Non Wovens Division, Flexel Corporation, North American Rayon Corporation, Pennwalt Corporation, PPG Industries, Inc., Teepak, Inc., and Viskase Corporation.
WHEREAS, OSHA has promulgated an Amended Air Contaminants Standard which includes a revised permissible exposure limit ("PEL") for carbon disulfide, consisting of an 8-hour time-weighted average ("TWA") limit of 4 parts per million ("ppm"), a short-term exposure limit ("STEL") of 12 ppm for 15 minutes, and various feasibility-based exceptions allowing compliance to be achieved with the use of respirators for certain specified operations ("respirator exceptions") to supplement existing engineering and work practice controls, 29 C.F.R. 1910.1000, 54 Fed. Reg. 2332 (Jan. 19, 1989); and
WHEREAS, the Inter-Industry Committee and Courtaulds have filed Petitions for Review of the revised standard for carbon disulfide (Case Nos. 89-7184 and 89-7073, respectively, United States Court of Appeals for the Eleventh Circuit); and
WHEREAS, on March 27, 1989 through March 29, 1989, OSHA representatives conducted site visits of four facilities of Inter-Industry Committee members, including BASF Corporation, North American Rayon Corporation, Flexel Corporation and Viskase Corporation; and
WHEREAS, the Inter-Industry Committee and Courtaulds continue to believe (and by entering into this Settlement Agreement do not concede otherwise) that OSHA has not met, by substantial evidence on the record as a whole, its burden of proving significant risk of material health impairment, to support the reduction of the PEL from 20 ppm to 4 ppm and the imposition of a 12 ppm STEL, and its burden of proving the technological and economic feasibility of the final regulation with regard to carbon disulfide; and
WHEREAS, extensive ventilation, enclosure and other engineering controls are generally in place to reduce exposure to carbon disulfide in production operations; and
WHEREAS, OSHA maintains that a carbon disulfide TWA of 4 ppm and STEL of 12 ppm are both necessary to protect workers against material impairment of health and feasible in United States operations with the allowance for certain respirator exceptions and for certain delayed compliance time tables applicable only to North American Rayon Corporation which are now pending before the Tennessee Occupational Safety and Health Administration ("TOSHA") (if granted by TOSHA); and
WHEREAS, OSHA concludes that this Settlement Agreement is protective of employees because it leaves in effect the exposure limits which OSHA believes necessary to protect employees and eliminates the uncertainties of litigation;
NOW, THEREFORE, the parties to this Settlement Agreement do hereby agree to the following terms:
1. With respect to the respirator exceptions, OSHA agrees that the language set forth below more clearly identifies appropriate respirator exceptions and clarifies the language set forth in the Preamble at page 2538, and OSHA will publish this clarification and interpretation in the Federal Register.
OSHA's assessment of the feasibility of this limit indicates that, under normal operating conditions, a 4 ppm TWA PEL and a 12 ppm STEL are generally achievable by using engineering and work-practice controls. Evidence in the record demonstrates that engineering controls and work practices are not feasible to achieve compliance and respiratory protection may be required during certain operations in industries that regenerate cellulose from viscose to form commercial products such as rayon staple, rayon yarn, cellophane, sponges and casings. Accordingly, respirators may be worn to achieve compliance with the Air Contaminants Standard when employees are performing the following tasks:
* Maintenance-type tasks (regardless of whether such tasks are performed by "maintenance personnel" or by others), such as tank washing, opening and redressing filters, cleaning process liquor screens, and handling unwashed, unpurified viscose and viscose products;
* Opening of production lines, e.g., to troubleshoot production quality, take tank samples, set thickness of cellophane, change spinerettes, clear jams, spin, thread and align film and fiber strands during extrusion, regeneration, and cutting, and manually puncture casings;
* Handling of fibers and filament bundles that have been removed from process equipment;
* Effecting product-line changes; and
* Loading alkali cellulose, and unloading, washing and dissolving xanthate, viscose and viscose products.
2. OSHA recognizes that due to the nature of the viscose process, conditions exist that may result intermittently in carbon disulfide concentrations in excess of the 12 ppm STEL. Such concentrations could result from conditions such as, but not limited to, process upsets, breakdowns, maintenance requirements, and the need periodically to enter process areas that are not continuously occupied by employees. In view of the foregoing, OSHA agrees that, in addition to the operations specified in paragraph 1, respirator use is appropriate to supplement existing engineering controls in such situations or similar situations to comply with the STEL.
3. Pursuant to paragraph 14 of this Settlement Agreement, OSHA will inform its regional and area offices through appropriate compliance directives that if proper respirators are appropriately worn in the context of an acceptable respirator program meeting the requirements of 29 C.F.R. 1910.134, no enforcement action will be taken for failing to utilize all feasible engineering and work practice controls or for failing to achieve compliance solely with engineering and work practice controls with the Final Rule Limits for carbon disulfide for the operations specified in paragraphs 1 and 2.
4. The foregoing shall apply beyond the start-up dates of the Air Contaminants Standard under 29 C.F.R. 1910.1000(f)(2)(i) and (ii) and shall continue to apply notwithstanding any prospective rulemaking(s) promulgated by OSHA with respect to the use of respirators in the workplace (except for new procedures broadening the acceptable usage of respirators), and, except as noted above with respect to the broadening of acceptable usage, modification to the respirator exceptions, if any, will be in the context only of a rulemaking specific to carbon disulfide. However, subject to the exceptions described in the foregoing sentence, any changes which may be made to the respirator program requirements of 29 C.F.R.1910.134 will apply to the respirator programs maintained by the members of the Inter-Industry Committee and Courtaulds.
5. Nothing in this Settlement Agreement is intended to prevent the application of the hierarchy of controls set forth at 29 C.F.R. 1910.1000(e) to tasks or operations not specifically identified above in paragraphs 1 and 2, and compliance with the Final Rule Limits for carbon disulfide shall be consistent with the provisions of 29 C.F.R. 1910.1000(e) for the tasks and operations not specified in paragraphs 1 and 2 above from the dates specified in 29 C.F.R. 1910.1000(f).
6. The members of the Inter-Industry Committee and Courtaulds agree to use and maintain the existing engineering controls at the operations specified above in paragraphs 1 and 2, and not to disable those systems while performing those operations if not required to carry out such operations, except as may be necessary to carry out maintenance, repair and/or replacement of those systems. OSHA may issue citations if failure to use or maintain such existing equipment (unless necessitated by the performance of operations described in paragraphs 1 and 2, and except as may be necessary to carry out maintenance, repairs, and/or replacement of those systems) leads to violations of the Final Rule Limits after December 31, 1992.
7. Prior to January 1, 1992, the members of the Inter-Industry Committee and Courtaulds will have a qualified industrial hygienist or engineer review hooding on the existing ventilation systems in the areas described above to determine whether changes to the size and shape of the existing hoods will significantly lower employee exposures, leading to reduced respirator use, without interfering with production. For operations where members of the Inter-Industry Committee and Courtaulds determine, based on factors they consider relevant, that it is economically and technologically feasible and cost-effective to make such changes, such changes will be completed by January 1, 1995 and become part of existing engineering controls. Once the foregoing determination has been made, and any changes deemed appropriate have been implemented, or upon concluding that any change is inappropriate, the obligations imposed under this paragraph shall be deemed satisfied.
8. OSHA agrees that the skin absorption limitation applies to skin contact with carbon disulfide in its liquid as opposed to vapor form.
9. With the shutdown of Avtex Fibers, Inc.'s plant at Front Royal, Virginia, North American Rayon Corporation becomes the only domestic manufacturer of rayon yarn, from which carbonized yarn, inter alia, a necessary constituent of materials employed in the nose cones of rockets used by various U.S. military and civilian agencies (including NASA), is produced. As a result of its visit to the North American Rayon facility on March 27, 1989, OSHA recognizes that because of the age of the facility, a phase-in period may be necessary to come into compliance with the respirator and engineering control and work practice requirements. See Application for Temporary Variance and supplemental letter to Robert B. Cooper dated August 15, 1989, and September 20, 1989, respectively, pending before the TOSHA attached hereto as Exhibits 1 and 2. OSHA, therefore, will, upon its execution, send this Settlement Agreement to TOSHA, and will state that it has no objection to the pending application for a temporary variance or for a temporary stay, as appropriate. In any plan agreed to between TOSHA and North American Rayon establishing a compliance program, (1) whenever equipment is upgraded for production purposes, ventilation will be correspondingly improved, and (2) those employees who are exposed to 4 ppm or more over an 8-hour TWA or 12 ppm over 15 minutes will be entitled to wear approved respirators upon their request.
10. If the application for a variance described in paragraph 9 is granted, and if North American Rayon and TOSHA should determine that it would be useful in connection with such variance, North American Rayon will undertake the preparation of an engineering plan by qualified engineers and industrial hygienists selected by North American Rayon to upgrade the ventilation system or provide alternative engineering controls for reducing exposures to carbon disulfide for employees who change spinerettes and load them for washing. To the extent that North American Rayon determines that it is economically and technologically feasible and cost-effective to implement any or all of the changes that may be contemplated by such a plan, it will submit a reasonable implementation schedule to its employees and TOSHA.
11. Nothing in this Settlement Agreement constitutes an admission by the Inter-Industry Committee or its members or Courtaulds that a significant risk of material health impairment exists for carbon disulfide justifying a reduction of the PEL to 4 ppm, over an 8-hour TWA or a 12 ppm STEL, or that a 4 ppm PEL and 12 ppm STEL are technologically or economically feasible. This Settlement Agreement is not intended to give any rights to any third party.
12. In the context of any future reconsideration of the 4 ppm TWA and 12 ppm STEL, OSHA agrees to review and consider any and all studies relating to the health effects of carbon disulfide. The Inter-Industry Committee represents that it is currently engaged in such studies and may undertake additional studies in the future.
13. If the Air Contaminants Standard is invalidated, nothing in this Settlement Agreement shall be construed as depriving the Inter-Industry Committee or Courtaulds of whatever court-ordered relief is available to interested persons who are not parties to the litigation contesting the standard.
14. The Inter-Industry Committee and Courtaulds agree to move to withdraw their petitions for review in the above-captioned cases within five working days of signing of this Settlement Agreement. OSHA agrees to publish within 30 days of signing this Settlement Agreement the above-mentioned Federal Register notice and simultaneously to issue the compliance directives described in this Agreement.
15. The Inter-Industry Committee and Courtaulds have intervened in all cases challenging the final Air Contaminants Standard. The Inter-Industry Committee and Courtaulds will move to dismiss their motions to intervene in all industry challenges simultaneously with their motion to dismiss Case Nos. 89-7073 and 89-7184, as petitioners. The Inter-Industry Committee and Courtaulds will not withdraw their motion to intervene on the side of respondent in AFL-CIO v. OSHA, No. 89-7185, in order to retain their rights to respond to any and all arguments the
AFL-CIO may make with respect to carbon disulfide or otherwise, including but not limited to any challenge to the provisions of this Settlement Agreement and/or to the provisions of the January 19, 1989 final Air Contaminants Standard as they apply to carbon disulfide.
16. If any member of the Inter-Industry Committee or Courtaulds undertakes to build a new, or completely rebuilds an existing, facility to which the Air Contaminant Standards for carbon disulfide would apply, such facility will be constructed to conform with then current good industry practices.
17. Each party agrees to bear its own attorneys' fees, costs and other expenses that have been incurred in connection with these proceedings up to and including filing of the motions to dismiss these petitions.
Agreed this 25th day of April, 1990.
____________________________ Charles P. Gordon United States Department of Labor 200 Constitution Avenue, N.W. Washington, D.C. 20210 Attorney for Respondent, Occupational Safety and Health Administration ______________________________ Joseph H. Price Baruch A. Fellner Theodore J. Boutrous GIBSON, DUNN & CRUTCHER 1050 Connecticut, N.W. Washington, D.C. 20036-5303 Counsel for Petitioner, Inter-Industry Committee _______________________________ Lynn L. Bergeson Kurt J. Olson FOX, WEINBERG & BENNETT 750 17th Street, N.W. Suite 1100 Washington, D.C. 20036 Counsel for petitioner, Courtaulds Fibers Inc.