______________________________________ WILLIAM E. BROCK, Secretary of Labor, ) United States Department of Labor, ) ) Complainant, ) ) OSHRC Docket v. ) ) No. 86-1707 FINA OIL AND CHEMICAL COMPANY, ) Port Arthur Refinery, ) ) Respondent. ) ______________________________________)
Pursuant to the provisions of 29 CFR 2200.100, Complainant and Respondent have reached a full and complete settlement of the above-captioned matter, and, through their undersigned counsel, hereby agree as follows:
(a) Respondent at all relevant times was an employer as defined in Section 3(5) of the Occupational Safety and Health Act (hereinafter the "Act"), 29 U.S.C. 652(5), employing employees, as defined in Section 3(6) of the Act, 29 U.S.C. 652(6), at its Port Arthur Refinery workplace, located at Port Arthur, Texas.
(b) The Occupational Safety and Health Review Commission (hereinafter the "Commission") has jurisdiction of this matter pursuant to Section 10(c) of the Act, 29 U.S.C. 659(c).
(a) As a result of an inspection conducted from April 29, 1986, through July 3, 1986, at Respondent's aforementioned workplace, the Secretary of Labor (hereinafter the "Secretary") issued to Respondent Citation 1, for alleged serious violations of the Act, with a proposed penalty of $1,500; Citation 2, for alleged other-than-serious violations of the Act, with a proposed penalty of $500; and Citation 3, for alleged willful violations of the Act, with a proposed penalty of $184,000. Respondent received these Citations on November 10, 1986.
(b) By letter dated November 14, 1986, in response to the above-mentioned Citations, Respondent timely gave its notice of contest pursuant to Section 10(a) of the Act, 29 U.S.C. 659(a), and 29 C.F.R. 1903.17(a). The notice of contest was received by the Complainant on November 28, 1986, and was thereafter duly transmitted to the Commission.
(c) On December 5, 1986, the Secretary filed with the Commission his complaint initiating this action, and Respondent thereafter timely filed its answer.
(d) No affected employees or employee representatives have elected party status in this proceeding.
(a) The complainant amends the Citations and complaint herein as follows:
(1) Citation 1, item 1: The type of violation alleged is amended to other than serious.
(2) Citation 1, item 2 is withdrawn.
(3) Citation 2, items 7, 8, and 9 are withdrawn.
(4) Citation 3: The type of violations alleged is withdrawn, and the Citation is amended to allege violations as described in Section 17 of the Act, 29 U.S.C. 666.
(5) Citations 1, 2, and 3: The proposed penalties for all items are withdrawn, and the Citations are amended to provide a total penalty of $83,500.
(b) The parties acknowledge and agree that the violations alleged in Citation 2, item 1, and Citation 3 were not the result of intentional or knowing disregard for the requirements of the Act, regulations or standards thereunder, or Bureau of Labor Statistics guidelines.
(c) Fina Oil and Chemical Company ("Fina") agrees that company-wide at all current facilities covered by the Act, within six (6) months from the date this Stipulation and Settlement Agreement becomes a final order of the Commission, it will conform its OSHA Forms 200 for the years 1984, 1985, and 1986 to the requirements of the Act, the regulations at 29 C.F.R. 1904, the instructions on the current edition of the OSHA Form 200, and the 1986 Bureau of Labor Statistics Recordkeeping Guidelines. Complainant agrees that, during the time specified for accomplishing the foregoing actions, for any item Fina enters either during or before such time period on an OSHA Form 200 (and any associated record maintained pursuant to the Act, regulations, or guidelines referred to hereinabove) in compliance with this paragraph, Fina will not be cited for allegedly failing to comply with the recordkeeping requirements of the Act or any regulations or guidelines issued pursuant thereto.
(d) Fina agrees that at all of its current facilities covered by the Act, effective with those recordkeeping entries not covered by the preceding paragraph III(c) that are made from and after the date this Stipulation and Settlement Agreement becomes a final order of the Commission, it will maintain its OSHA Forms 200 according to the requirements of the Act, the regulations at 29 C.F.R. 1904, the instructions on the OSHA Form 200, and the 1986 Bureau of Labor Statistics Recordkeeping Guidelines, as such provisions may from time to time be revised and according to the versions thereof that are in effect as of the date of the Form 200 entry.
(e) Fina agrees to provide to the Secretary a report describing the activities that have taken place pursuant to paragraph III(c) above. This report will be provided within 60 days after the conclusion of the six-month period (or any agreed extension thereof) specified in paragraph III(c).
(f) Complainant and Respondent agree that all of Fina's actions pursuant to the provisions of paragraphs III(c), (d), and (e) above are undertaken voluntarily, and are outside the scope of abatement except with regard to any OSHA Form 200 changes made in respect of the specific instances involving the Fina Port Arthur Refinery that are cited in Citation 2, item 1, and Citation 3, item 1, as referred to hereinabove.
Without admitting any violation of the Act or any regulation or standard issued pursuant thereto, Respondent hereby withdraws its notice of contest to all items contained in Citations 1, 2, and 3, as amended herein, and agrees that the amended Citations and this Stipulation and Settlement Agreement will constitute a final order of the Commission. Respondent's consent to entry of a final order of the Commission pursuant to this Stipulation and Settlement Agreement shall not constitute an admission by Respondent of (i) any violation of the Act, (ii) the alleged facts underlying the Citations or amended Citations, or (iii) any wrongdoing, all of which Respondent expressly denies. The parties agree that the Respondent enters into this Stipulation and Settlement Agreement in compromise and settlement of a disputed claim, for the sole purpose of avoiding further trouble, litigation, and expense; and the parties intend that neither this instrument nor any part of it may be construed, used, or admitted into evidence in any judicial, administrative, or arbitral proceeding, whether civil or criminal, as an admission of any kind by Respondent. The parties further agree, however, that with respect to any future proceeding brought against the Respondent by the Secretary of Labor directly under the provisions of the Act, this Stipulation and Settlement Agreement and any final order of the Commission in this proceeding may be offered into evidence for the purpose of enforcing the terms of this settlement, or to establish the occurrence and disposition of this proceeding for proper purposes under the Act.
Respondent represents that the alleged violations appearing in Citations 1, 2, and 3, as amended herein, have been abated.
Within three working days after this Stipulation and Settlement Agreement is filed with the judge, Respondent will serve all authorized employee representatives and post notice to affected employees in accordance with the provisions of 29 C.F.R. 2200.100(c).
Within 30 days after the order approving this Stipulation and Settlement Agreement has become a final order of the Commission, Respondent will pay to the Secretary of Labor the amount agreed to in paragraph III(a)(5) herein. The parties hereto agree to bear their own attorney's fees, costs, and other expenses that have been incurred in connection with any stage of these proceedings.
WHEREFORE, the parties agree that pursuant to the terms and conditions stated above, this matter is hereby settled and no issues in this case remain to be adjudicated by the Commission.
FOR COMPLAINANT: FOR RESPONDENT: GEORGE R. SALEM Solicitor of Labor CYNTHIA L. ATTWOOD DAVID H. FELDMAN BENNETT W. CERVIN Associate Solicitors Thompson & Knight 3300 First City Center DALY D. E. TEMCHINE 1700 Pacific Avenue Acting Deputy Associate Dallas, Texas 75201 Solicitor PETER B. DOLAN JAMES L. VEACH MARVA M. PEACE-JACKSON Senior Attorney Attorneys Fina Oil and Chemical Company U.S. DEPARTMENT OF LABOR P. O. Box 2159 200 Constitution Avenue, N.W. Dallas, Texas 75221 Washington, D.C. 20210 17 December 1987 12-16-87 Date Date