___________________________________ ) GATES ENERGY PRODUCTS, INC., ) ) Petitioner, ) ) v. ) Docket No. 92-2920 ) ROBERT REICH U.S. SECRETARY OF ) LABOR, AND OCCUPATIONAL SAFETY AND ) HEALTH ADMINISTRATION, ) ) Respondents. ) ___________________________________)
Pursuant to Federal Rule of Appellate Procedure 42(b), Petitioner Gates Energy Products, Inc. (GEP), 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, GEP has petitioned for review of the Cadmium Standard in the above-captioned proceeding; and WHEREAS, GEP and OSHA wish to resolve certain issues relating to the Cadmium Standard and thereby settle this proceeding;
THEREFORE, GEP and OSHA agree as follows:
1. OSHA agrees that GEP may include in its Compliance Plan for the Cadmium Standard the provisions set forth in Appendix A to this Agreement, and that compliance by GEP with each such provision shall constitute compliance by GEP 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. GEP 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 GEP petition with prejudice.
3. GEP and OSHA agree that this Settlement Agreement extends to, binds and inures to the benefit of GEP, its successors and assigns.
4. GEP 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 GEP petition.
IN WITNESS WHEREOF the parties have executed this Agreement as of the 19th day of March, 1993.
GATES ENERGY PRODUCTS INC. By_______________________________ Judith W. Parson Director, Environmental Safety and Health Division 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
This plan describes engineering controls and work practices for controlling employee exposure to cadmium in the nickel-cadmium battery manufacturing facility owned and operated near Gainesville, Florida by Gates Energy Products, Inc. ("GEP"). The plan also includes additional provisions of GEP's plan for compliance with certain other requirements of the cadmium standard. This compliance plan is submitted to, and accepted by, OSHA with the mutual understanding that compliance with its provisions constitutes compliance with the specified requirements of the paragraphs or sub-paragraphs of the cadmium standard to which each provision relates, as specifically referenced below.
II. ENGINEERING CONTROLS
In order to satisfy the requirements for engineering controls of paragraph (f) of the cadmium standard, GEP shall do the following:
A) Platemaking and Plate Preparation
1. By December 31, 1993, enclose the area in which the despiraling machine is located. By December 31, 1994, improve ventilation of this area.
2. By December 31, 1993, install dust containment on the pay-off reels for the cleaning process following impregnation.
3. By June 14, 1994, enclose and ventilate fifteen individual winders in the cell assembly building.
4. By December 31, 1993, isolate the "D" winding area.
5. By December 31, 1994, upgrade the vacuum system used in the cell assembly building so as to divide the present two trunk lines into three trunk lines. By December 31, 1994, relocate a vacuum power unit and dust collector for the isolated "D" winding area.
B) Other Operations
6. By December 31, 1993, isolate, with one barrier, areas in the cell assembly building with airborne cadmium levels below 5 ug/m3.
7. By December 31, 1993, modify the design of the drop boxes in the cell assembly building to enhance separation of materials and increase air flow rates.
8. As equipment used to control cadmium exposure is installed, develop and implement preventive maintenance practices to assure that the equipment continues to operate properly and achieves its intended purpose. Specifically, by October 14, 1993, develop a comprehensive Preventive Maintenance ("PM") program to assure that all such equipment continues to operate properly and achieves its intended purpose, and by July 14, 1994, implement the PM program. Update the program as needed.
9. By December 31, 1993, install pressure differential monitors with surveillance on existing HEPA filtered air that is returned to the workplace.
10. Contemporaneously with the installation of the new equipment that returns HEPA filtered air to the workplace, install pressure differential monitors on the new equipment.
11. Between January 1, 1995 and January 1, 1996, evaluate the effectiveness of the engineering and work practice controls that have been implemented under this plan and, if the applicable SECALs are being exceeded, implement such additional engineering and work practice controls as are necessary and feasible to achieve the SECALs.
12. It is understood that some exposures in some operations in GEP's plant may exceed the applicable SECAL despite GEP's implementation of the necessary engineering controls and its implementation of the comprehensive preventive maintenance program described in paragraph II(B)(8) of this compliance plan. Measurements over the SECAL(s) may be due to sampling error, random variability of airborne cadmium levels, or feasibility constraints. In determining whether GEP is in compliance with paragraph (f)(1)(ii) of the cadmium standard when some air monitoring results exceed the applicable SECAL, OSHA will consider, among other things, whether the results are unrepresentatively high in light of GEP's past monitoring data.
III. WORK PRACTICES
In order to satisfy the work practice control requirements of the paragraph (f) of the cadmium standard, GEP will:
1. By March 19, 1993, clean the assembly building and the impregnation and plate preparation areas over ten feet from the building floor to remove accumulated cadmium dust.
2. By March 19, 1993, begin to use work practice teams to determine whether additional work practices are desirable.
3. Conduct continuing monitoring of work practice improvements during the life of this compliance plan to determine whether further action is necessary.
IV. SHOWER FACILITIES
1. In order to satisfy the requirements of paragraphs (j)(1) and (j)(3) of the cadmium standard regarding wet showers, GEP shall:
1) by October 17, 1993, install and put in service an air tunnel in each building where employees are exposed to cadmium above the PEL; the first of those installations shall be completed and in use by July 23, 1993; the second shall be completed and in use by August 20, 1993.
2) As the air tunnels are installed, GEP shall assure that all employees who are in the building with the air tunnel and are exposed above the PEL, except those who take wet showers in accordance with paragraph (j)(1) and (j)(3), take air showers after their last occupational exposure to cadmium has ceased and before leaving work.
3) By July 1, 1995, GEP shall submit a permanent variance application under Section 6(d) of the OSH Act if the company determines that the air tunnels have proven to be as protective as the wet showers required by the cadmium standard and GEP wishes to rely upon air tunnels instead of wet showers to comply with that standard.
4) If GEP submits a timely application for a permanent variance to OSHA, and if, in accordance with section 6(d) of the OSH Act, GEP presents sufficient objective evidence that its air tunnel is as effective as a wet shower in removing cadmium from employee's hair and skin, OSHA shall promptly grant the permanent variance request.
5) If GEP does not make a timely application for a permanent variance, or if OSHA denies GEP's application for a permanent variance, by January 1, 1996 or within six months after such denial, whichever date is later, GEP shall install and put in use wet showers in compliance with the requirements of paragraphs (j)(1).
2. In the event that GEP installs wet showers, in order to comply with the requirement of paragraph (j)(3)(i) of the cadmium standard, the company will assure that employees exposed to cadmium in excess of the PEL on any given day take showers after their exposure to cadmium has ceased and before leaving the plant.
V. EMPLOYEE NOTIFICATION
In order to satisfy the employee notification requirements in paragraph (d)(5)(ii) of the cadmium standard, GEP shall, within 15 working days after receipt of a monitoring result showing an employee is exposed in excess of the PEL, notify each affected employee in writing of that fact and provide the employee with a list of possible solutions. In addition, GEP shall refer such results to the area work practice team, area manager, plant manager, and engineering staff, to promptly assess the need for corrective action. Within 30 working days of the receipt of the monitoring results, GEP shall post a report in the affected employee's work area of their findings and the corrective action taken to reduce employee exposure to or below the PEL or of the reasons why no corrective action was deemed necessary or feasible.
VI. LUNCHROOM HOUSEKEEPING
In order to meet the requirement of paragraph (j)(4)(i) of the cadmium standard that "tables for eating are maintained free of cadmium," GEP shall wet wipe each lunchroom table at least every four hours during which the lunchroom is continuously open and available for use, and, during periods of non-continuous use, shall wet-wipe them before each meal period.
VII. RESPIRATOR FIT TEST
In order to meet the respirator fit testing requirement in paragraph (g)(4)(v) of the cadmium standard, GEP may use a Portacount machine for quantitative fit testing unless and until OSHA determines that the accuracy of that method has been thrown in doubt through results in validation testing or OSHA in a respirator standard revision declines to include it as a validated fit test method.
In order to satisfy the accuracy requirement for analysis of monitoring samples in paragraph (d)(6) of the cadmium standard, GEP will use Inductively Coupled Argon Plasma Atomic Emission Spectroscopy to perform such analysis and shall comply with the accuracy requirements in that paragraph.
IX. MEDICAL REMOVAL PROTECTION
1) In order to comply with the requirements of paragraphs (l)(3)(ii)-(iv) for medical removal of exposed employees, GEP shall mandatorily remove any employee subject to medical surveillance to a job having airborne cadmium exposure below the
action level whenever the employee's biological monitoring test results show either:
a) CdB levels in excess of 10 ug/Lwb; or
b) B2M levels in excess of 300 ug/g Cr, coupled with CdU levels in excess of 3 ug/g Cr or CdB levels in excess of 5 ug/Lwb; or
c) By the following dates, CdU levels in excess of:
i) Effective December 14, 1992, 12 ug/g Cr;
ii) Effective January 1, 1994, 10 ug/g Cr;
iii) Effective January 1, 1995, 9 ug/g Cr;
iv) Effective January 1, 1997, 8 ug/g Cr; and
v) Effective January 1, 1998, 7 ug/g Cr.
2) This compliance plan eliminates the physician's obligation under paragraphs (l)(3)(ii)-(iv) to determine in writing whether an employee should be medically removed whenever the employee's biological monitoring results are above the limits specified in paragraph (l)(3)(i) and at or 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). After January 1, 2001, GEP shall fully comply with the requirements of paragraphs (l)(3)(ii)-(iv) for medical removal of exposed employees unless prior to that date it applies for and receives a variance under Section 6(b)(6) or Section 6(d) of the OSH Act.
3) With regard to GEP's request that employees who must be mandatorily removed from their jobs in accordance with paragraph IX(1) of this compliance plan but would not have to be removed under the applicable mandatory removal trigger levels in paragraph (l)(3)(iii) of the cadmium standard, may be removed for up to 12 months to jobs where air cadmium levels are at or above the action level but are below the PEL, OSHA invites GEP to promptly submit an application for a temporary variance under Section 6(b)(6) of the OSH Act and agrees to expedite the processing of such an application.
X. REGULATED AREAS
In order to comply with the requirement of paragraphs (p)(2)(ii) and (g)(1)(iii) of the cadmium standard, GEP will establish the regulated areas required by paragraph (e) of the standard by June 14, 1993. This deferral of the startup date for regulated areas
in no way otherwise affects GEP's obligation to comply with paragraphs (p)(2)(i) and (p)(2)(iii).
XI. INITIAL MEDICAL EXAMINATIONS
In order to comply with the requirements of paragraphs (l)(2)(i) and (p)(2)(viii) of the cadmium standard,
1) GEP by April 14, 1993 shall provide a medical examination that monitors the level of cadmium in urine and includes a medical and work history, as defined in paragraph (l)(2)(ii)(A), to all employees covered under paragraph (l)(1)(i) by the medical surveillance program to whom the company has not after April 14, 1992 provided a medical examination that includes a measurement of CdU. For those employees who received such a medical examination after April 14, 1992, depending upon the nature of that examination, GEP shall provide either a periodic medical examination, as defined in paragraph (l)(4)(ii) of the standard, or biological monitoring, as defined in paragraph (l)(2(ii)(B), within one year of the employee's most recent examination.
2) GEP also shall provide all employees covered by the medical surveillance program with CdB and B2M monitoring on a schedule that assures that at least twenty-five percent of those employees will have had such tests by March 14, 1993, fifty percent by June 14, 1993, seventy-five percent by September 14, 1993, and 100 percent by December 31, 1993.
3) Provided, however, that any employee monitored under requirement 1) or 2) of this paragraph whose most recent biological monitoring result for CdU, CdB, or B2M is in excess of the limits set out in paragraph (l)(3)(i) of the cadmium standard shall be treated in accordance with the medical surveillance provisions of the cadmium standard.
XII. EXPIRATION DATE
Unless extended by mutual consent of GEP and OSHA, and except for paragraphs that are self-limiting at an earlier date and for paragraph IX, which provides a later expiration date, this approved compliance plan shall expire on January 1, 1999. Upon that date, GEP in its Gainesville facility shall comply with all provisions of the cadmium standard other than those addressed by paragraph IX. GEP shall comply with those provisions as well by January 1, 2001, as specified in that paragraph.