__________________________________________ ) Institute of Makers of Explosives ) for itself and on behalf of its members, ) ) Petitioner, ) v. ) Case No. 89-7247 ) Occupational Safety and Health ) Administration, U.S. Department of ) Labor, ) ) Respondent. ) __________________________________________)
The parties to this Settlement Agreement are: the Institute of Makers of Explosives ("IME"), for itself and on behalf of its members, Atlas Powder Co. ("Atlas"), Ireco Inc. ("Ireco"), Austin Powder Co. ("Austin"), Hercules Inc. ("Hercules"), and the Occupational Safety and Health Administration, United States Department of Labor ("OSHA").
WHEREAS, OSHA has promulgated an amended Air Contaminants Standard (29 C.F.R 1910.1000, 54 Fed. Reg. 2332, January 19, 1989) which includes revised permissible exposure limits ("PELs") for Nitroglycerin ("NG"), consisting of a 15 minute Short Term Exposure Limit ("STEL") of 0.1 mg/m(3) with a skin designation, and for Ethylene Glycol Dinitrate ("EGDN"), consisting of a 15 minute STEL of 0.1 mg/m(3) with a skin designation; and
WHEREAS, the IME has filed a Petition for Review of the revised PELs for NG and EGDN (Case No. 89-7247, United States Court of Appeals for the Eleventh Circuit); and
WHEREAS, the IME filed with OSHA on June 19, 1989, a petition for reconsideration of the revised NG and EGDN PELs and a request for administrative stay, and had earlier supplied documentation to OSHA to support its petition for reconsideration; and
WHEREAS, Atlas, Ireco, Hercules and Austin manufacture NG and EGDN products (with a total exposed workforce of approximately 700) and employ the substantial majority of the exposed workforce-producing civilian explosives; and
WHEREAS, there are approximately 400 companies (approximately two thirds of which are represented by the IME) that distribute explosives (approximately 5% of which contain NG and EGDN) and may store such explosives in magazines where the possibility of volatilizing NG and EGDN from the explosives exists; and
WHEREAS, the IME believes that lowering the transitional exposure limits for NG and EGDN to the revised PELs is not necessary to prevent cardiovascular effects and severe headaches; and
WHEREAS, the IME believes that engineering controls to lower exposures to NG and EGDN, if otherwise feasible, should only be introduced after extensive experience and evaluation to minimize the possibility that they might increase the explosion hazard; and
WHEREAS, the IME believes that introducing respirators to immediately lower exposures may increase the risk of explosion and that air-purifying respirators do not have proven effectiveness; and
WHEREAS, the IME believes that a booklet titled Workplace Practices to Protect Worker Health Adopted by the Manufacturers of Nitroglycerin and Ethylene Glycol Dinitrate and the U.S. Occupational Safety and Health Administration -- August 1984, is fully appropriate, but OSHA has come to believe, after its recent health review, that the booklet tends to minimize the health risks of NG and EGDN and some of its suggested work practices may require revision; and
WHEREAS, OSHA believes that a substantial reduction in the exposure limits to NG and EGDN listed in the Transitional Limits column of Table Z-1-A are needed to reduce a significant risk of material impairment of health from cardiovascular effects and severe and moderate headaches; and
WHEREAS, OSHA believes that engineering controls are available to lower exposures to NC and EGDN but agrees with IME that they must be introduced only after careful evaluation to minimize the possibility of increasing the explosion hazard; and
WHEREAS, OSHA believes that half-mask air-purifying respirators do not present a safety hazard but that further research is needed to demonstrate their effectiveness for NG/EGDN mixtures, and that supplied air respirators may create safety hazards in some, but not all, explosive manufacturing operations; and
WHEREAS, OSHA intends to work with the Department of Defense, the Army, Navy, and other armed forces (who are not parties to this agreement) in their ongoing programs to reduce NG exposures to their civilian employees and the employees of their civilian contractors in a safe manner, while maintaining the defense capabilities of the United States, and it intends to coordinate with the National Institute of Occupational Safety and Health (not a party to this agreement) in its ongoing research efforts on the health effects and safe control of, NG and NG/EGDN; and
WHEREAS, both OSHA and IME agree that magazines that store explosives containing NG and EGDN should be vented prior to the entry of workers to store or remove explosives to reduce worker exposure to NG/EGDN, and that ventilation prior to entry is a recognized control in the industry; and
WHEREAS, OSHA concludes that this agreement will substantially improve the health of workers in the civilian explosives and propellants industry, both in the short and long-term, will prevent the possibility arising of increased risk from explosion, and considering the uncertainties of litigation, is the best approach to improve the health of workers in the civilian explosives and propellants industry;
NOW, THEREFORE, the parties to this settlement agreement do hereby agree to the following terms:
I. Installation of Engineering Controls to Lower Exposures To NG and EGDN
A. As part of this settlement agreement, Atlas, Austin, and Ireco will undertake the following actions in their respective facilities:
1. NG Line Improvements:
a. Design and install hood over NG buggy fill stations.
b. Design and install enclosure over NG transport water pump tanks.
c. Install larger exhaust system at NG storehouses(2). (Atlas only).
d. Install remote-operated Biazzi for NG/EGDN manufacture. (Ireco only).
2. Mix/Cartridge House Improvements:
a. Design and install vent hood over NG buggy stations. (Atlas only).
b. Design and install vent hood over Gel Mix NG Scale tank. (Ireco only).
c. Develop alternative possible designs for engineering and entry door system to reduce open time when removing/introducing mixes. Drafts from open doors upset building air flow patterns. (Atlas only).
d. Develop alternative possible designs to engineer improved containment of contaminated materials in tool enclosures, and similar areas.
e. Redesign powder shoveling stations to improve vapor containment.
f. Develop an improved system of collecting and reclaiming improperly filled cartridges (phonies).
g. Design and install improved vent hoods over powder shoveler stations (Austin).
h. Upgrade existing exhaust fan duct system in Pack A, A Line, and Pack C, A Line (Austin).
3. Neutralizer (Atlas/Tamaqua only): Design and install improved ventilation over shipping gutter.
4. Equalization Tank (Waste Water), (Atlas/Tamaqua only): Install improved ventilation over the equalization tank.
5. NG Line Improvements:
a. Install powered ventilation systems in outside catch tank houses. (January 1991 - January 1992)
b. Modify NG/EGDN waste water treatment system for remote neutralization. (Ireco only). (July 1990-December 1990)
6. Mix/Cartridge House Improvements:
a. Research and evaluate low permeability packaging materials such as case liners, curtain-coated boxes, etc. This will involve actual testing of different packaging materials. (December 1990 - December 1992)
b. Design, install prototypes, and test air curtains in front of mix bowls, doorways, and tailing stations. (December 1991 - December 1994)
c. Design, install prototypes and test modification of Hall machines (Atlas) and Bohlman machines (Ireco) so powder conveyors feed at a semicontinuous low rate, rather than in an on-off high rate fashion, to reduce powder dust generation. If tests are successful, complete modifications by June 30, 1993. (December 1990 - December 1991)
d. Design, install prototypes and test perforated ceilings and perimeter baseboard exhaust as a method of introducing conditioned air without inducing drafts. (December 1991 - December 1994)
e. Evaluate floor plan changes, partition additions and machine enclosures which will further isolate support operations, i.e., case sealing, empty package handling from vapor sources. Implement a reasonable number of those changes that are found to reduce exposures. (December 1991-December 1994)
f. Develop and install a powder hod handling method which eliminates open hods outside shoveling enclosure. (December 1990-July 1992)
g. Evaluate lower mixed powder temperatures. (December 1990 - December 1992)
h. For items 2(c) through 2(f) above, report to OSHA by September 1, 1991, on the results of the design and development work and, if successful, install improvements by September 1, 1992.
i. Design and install improved fume containment system on Dupont Packer machine. (Austin). (January 1991-June 1992)
Increase ventilation and isolation of dessicator loading areas in mix-house. (Atlas/Tamaqua only). (June 1, 1992)
8. The Austin NG Line is not presently in operation. In the event that Austin commences NG Line operations, Austin shall submit a list of projects, which projects, upon approval by OSHA, shall be completed within one year.
B. As part of this settlement agreement, Hercules will undertake the following actions in its Kenvil facilities to reduce employee exposure to NG:
1. NG Line Improvements:
a. Evaluate whether the NG storehouse and buggy operations can be eliminated.
b. Evaluate operator exposure to determine the need for and/or design basis for ventilation systems in outside catch tank houses.
2. Premix House Improvements:
a. Evaluate the need for and if required, develop the design basis for, a ventilation system at the premix station.
3. NG Line Improvements:
a. If elimination of the NG storehouse and buggy operation is not feasible (see B.1(a) above), design and install ventilation systems, (January 1991-December 1992)
b. Based on the evaluation and design development performed pursuant to B.1(b) above, install ventilation system in outside cash tank house. (December 1991)
4. Pre-Mix House Improvements:
a. Based on the evaluation and design development performed pursuant to B.2 (a) above, install a ventilation system at the premix station.
5. Propellant Mixer Bay (Both "A" and "B" lines) Improvements:
a. Evaluate the need for and/or design basis for alternative ventilation systems for control of operator exposure to NG vapor while charging premix to mixers and when dumping propellant from mixers. (July 1990-December 1991)
b. Based on the results of this evaluation, install new system(s). (January 1992-December 1992)
6. Blocker Building:
a. Evaluate the need for, and feasibility of, improved ventilation in blocker buildings. (January 1991-December 1991)
b. Based on the results of this evaluation, design and install ventilation systems in the blocker bays. (January 1991 - December 1992)
7. Extrusion Bays:
a. Evaluate the need for improved ventilation at the extrusion bays. (January 1991-December 1991)
b. Based on the results of this evaluation, design and install ventilation systems in the extrusion bays. (January 1902 - December 1993)
8. Cutting Room:
a. Evaluate the need for improved ventilation.
b. Based on the results of this evaluation, modify ventilation systems. (January 1992-December 1993)
a. Study workplace environment in and around representative Dry houses, Rest houses, Shipping houses, and magazines as part of a general Industrial Hygiene monitoring program to evaluate the need for improved engineering controls. (December 1990)
b. Based on the results of this study and evaluation, design and install engineering controls. (January 1991-December 1994)
II. Respirator Research and Use
As part of the settlement agreement, the IME will undertake the following research on respirator protection:
1. IME shall conduct a Hazard and Operability Review of respirators currently on the market to identify whether or not those respirators present safety problems. (Projected completion date: August 30, 1990.)
2. IME shall review the manufacturing process at Radford and Indian Head to identify those operations in which respirators are worn and the conditions under which they are worn. This review shall include an examination of the differences between: (a) the Radford and Indian Head processes for manufacturing NG and (b) the commercial processes for manufacturing NG/EGDN. This review shall evaluate whether, and how, any differences in manufacturing processes may affect the safe application of respirators to the NG/EGDN manufacturing process. (Projected completion date: November 30, 1990 -- the timing of this phase of IME's study is contingent on obtaining the necessary approvals from the parties concerned.) A report on items Nos. 1 and 2 above shall be submitted to OSHA no later than March 1, 1991.
3. Because NG and NG/EGDN have different vapor pressures, experience with respirators in an NG environment may not be directly applicable to processes involving NG/EGDN. Accordingly, IME will perform the following evaluations to determine whether such respirators may be used safely in an NG/EGDN environment. In particular, IME will test:
(a) compatibility of activated charcoal cartridge/filters with EGDN and NG/EGDN;
(b) capacity of activated charcoal cartridges/filters to absorb EGDN and NG/EGDN;
(c) potential for static charge build-up in the respirator;
(d) compatibility of half-mask, air-purifying respirators with EGDN. The purpose of these tests, which are mandatory for all materials introduced into an explosives environment, is to determine whether the interaction of NG/EGDN and EGDN with the materials from which the respirator is fabricated will cause a safety hazard. (Projected completion date: September 1, 1991 and report to be submitted to OSHA by that date.) 4. Some respirator manufacturers presently advise against using half-mask organic vapor cartridges in NG and NG/EGDN environments due to poor or non-existent warning properties. OSHA has authorized, under specified conditions, the use of air purifying respirators when there are poor warning properties for other substances. Subject to the terms of this agreement, OSHA may direct employers to use such respirators for NG and NG/EGDN, despite poor warning properties, whenever respirators are determined to be necessary to achieve compliance.
5. OSHA will evaluate the reports of March 1, 1991 and September 1, 1991, along with the ongoing Navy research. OSHA will make the results of this evaluation available to IME.
6. IME will initiate discussions with respirator manufacturers to: (a) identify a manufacturer or manufacturers willing to cooperate in attempting to solve any safety problems, if any, identified in the Hazard and Operability Review (see paragraph II.1. above); and (b) examine the technological feasibility and cost of redesigning the respirator to eliminate any safety problems identified in the Hazard and Operability Review. IME anticipates that initial discussions with respirator manufacturers could be completed by December 31, 1990 on these matters.
If redesigns are necessary, a study and evaluation schedule will be established, in conjunction with the respirator manufacturers, to eliminate possible hazards.
(Projected completion date: November 30, 1991, and report to be submitted to OSHA by that date.)
III. Administrative and Work Practice Controls
As part of this settlement agreement, IME, Atlas, Ireco, Hercules and Austin will undertake the following activities:
1. IME and OSHA shall review the booklet entitled Workplace Practices to Protect Worker Health Adopted by the Manufacturers of Nitroglycerin and Ethylene Glycol Dinitrate and the U.S. Occupational Safety and Health Administration -- August 1984 to evaluate whether any changes should be made, in particular, to the administrative controls and workplace practices recommended therein. This review shall be commenced by September 1, 1990, and completed by February 28, 1991. Until such time as agreement is reached, the booklet shall not be reprinted without a statement added "the health conclusions are those of the manufacturers and do not necessarily reflect the views of OSHA or NIOSH."
2. Atlas, Ireco, Hercules and Austin shall review their procedures for monitoring EGDN and NG to ensure sufficient analytical capability to prepare a detailed survey of exposure concentration in NG and NG/EGDN operating buildings and of exposures to employees. Personal samples as well as area samples shall be taken. These companies shall perform such surveys at regular intervals throughout the reconsideration period, no less frequently than semi-annually to monitor any changes or improvements in airborne concentrations of NG and NG/EGDN. In particular, the companies shall identify the areas and circumstances which give rise to the highs vapor concentrations. Measurements and techniques shall be in accordance with accepted industry standards.
3. Protective clothing and practices, including medical surveillance, described in Section III and VI of the Workplace Practices Manual, and any amendments thereto, shall be conscientiously maintained.
4. Atlas, Ireco, Hercules and Austin shall maintain employee medical histories and records of the atmospheric concentrations of NG and NG/EGDN to which those employees are exposed.
5. The records maintained under paragraph III.4. may be reviewed by selected experts in industrial hygiene and epidemiology for evaluation, and advice as to the records' completeness and content. IME may retain an expert in industrial hygiene and epidemiology to design and conduct an NG/EGDN health risk study.
6. Atlas, Ireco, Hercules and Austin and distributors and end-users of their NG and NG/EGDN products, shall ventilate magazines that contain NG and NG/EGDN explosives prior to entry. The IME shall inform its distributor members of this obligation.
IV. Labeling and Warning
As part of this settlement agreement, Atlas, Ireco, Hercules and Austin will also undertake the following activities:
1. (a) Except as set forth in 1(b) below, all Department of Transportation ("DOT") approved shipping containers containing NG and NG/EGDN products shall conspicuously bear a label meeting the requirements of the Hazard Communication Standard and, in addition, by December 31, 1990 shall include in that label the following words: Ventilate magazines before entering.
(b) Shipping containers, containing cans of smokeless powder, weighing up to 15 lbs., shall conspicuously bear a label meeting the requirements of the Hazard Communication Standard and, in addition, by December 31, 1990 shall include in that label the following words: Provide adequate ventilation.
2. By December 31, 1990, Material Safety Data Sheets for NG and NG/EGDN and explosives containing them shall indicate, in addition to the requirements of the Hazard Communication Standard, that magazines containing NG and/or EGDN explosives shall be ventilated before entry.
V. Reporting Requirements
1. On or before March 1, 1991, and every six months thereafter, IME, Atlas, Ireco, Hercules and Austin will each prepare and submit to OSHA a detailed written report of the steps it has taken to perform the activities required by the terms of this Settlement Agreement, and an updated schedule for all remaining activities contemplated by this Agreement. IME, Atlas, Ireco, Hercules, and Austin will each file a final report by January 1, 1995.
2. IME reports shall include reports on the progress of respirator research as specified in Section II.
3. Company reports will also include the results of tests undertaken, its preliminary findings concerning the effectiveness of the measures for reducing NG and NG/EGDN Cure pursuant to this Settlement Agreement, the engineering controls installed, an explanation of why any measures previously evaluated are not being implemented, and answers to such specific follow-up inquiries as OSHA may submit in writing. The reports shall include a SUMMARY of the exposure data collected pursuant to paragraph III.4.
4. In a final report submitted on or before January 1, 1995, each company will submit complete exposure data on NG and EGDN and also advise OSHA of any further steps that might be taken to reduce such exposures.
VI. Reconsideration of NG and EGDN PELs
1. Within 10 days after the execution of this Settlement Agreement, IME will move to dismiss its petition for judicial review of the Air Contaminants Standard relating to NG and EGDN.
2. Within 30 days following the dismissal of said petition for review by the court of appeals, OSHA will, by notice published in the Federal Register, formally grant the IME petition for administrative reconsideration of the NG and EGDN STELs insofar as they apply to the civilian explosives and propellants industry (i.e., civilian manufacture and distribution of explosives and propellants for civilian use).
3. (a) OSHA's granting of the petition for reconsideration will result in the PELs for NG and EGDN in the Final Rule Limits columns not being in effect for the civilian explosives and propellants industry. Those PELs will remain in effect for other industries except that, until such time as negotiations are concluded between OSHA and the Departments of Defense, Army, Navy and Air Force, and the National Aeronautics and Space Administration "NASA") (referred to collectively hereafter as "government agencies"), the PELs for NG and EGDN in the Final Rule Limits Column shall not he in effect for NG/EGDN manufacturers in their capacities as non-go-co contractors for those government agencies.
(b) If any company that manufactures NG products for sale to, or use by, government agencies, requests information about the status of the negotiations referred to in (a) above and the name of the person(s) responsible for those negotiations, OSHA shall, if the pertinent government agency consents, provide the requested information.
4. The ceiling limits for NG/EGDN in the Transitional Limits column of 29 C.F.R. 1910.1000, Table Z-1-A, will remain in effect indefinitely for the civilian propellants and explosives industry, as will the skin designation in the Final Rule Limits column.
5. No earlier than January 1, 1992 and after considering the reports on respirator safety, nor later than December 1, 1994, after consulting with relevant parties, OSHA will commence reconsidering the exposure limits for NG and EGDN. OSHA will publish a notice in the Federal Register and permit public comment before taking final action. No final rule will require Atlas, Ireco, Austin, and Hercules, prior to July 1, 1995, to install engineering controls in their existing facilities that manufacture NG and NG/EGDN explosives and propellants for civilian use, other than those engineering controls specified in this agreement.
6. OSHA may publish a Federal Register notice of rulemaking concerning the PELs for NG and EGDN at an earlier time if it determines, after consultation with the IME and the companies, that IME, Atlas, Ireco, Hercules or Austin have not acted in good faith to carry out this Settlement Agreement. Failure to meet a deadline set forth in this Settlement Agreement does not, in and of itself, constitute bad faith.
7. Atlas, Ireco, Hercules and Austin shall not be deemed in violation of this agreement in the event they are prevented from complying in a timely manner with any obligation imposed in this Agreement by reason of fire, flood, act of God, strike, other disturbance of labor, act of any court or governmental agency, or any other circumstances beyond their control, which they, by the exercise of all reasonable diligence, are unable to prevent or mitigate. Atlas, Austin, Hercules and Ireco, further shall exercise all reasonable diligence to remove or remedy any condition constituting such force majeure.
VII. Other Provisions
1. OSHA intends to consult with the Department of Army, Department of Navy and NIOSH about controlling exposure to NG and EGDN. It intends to encourage the Army and Navy programs of reducing exposures to NG, and the Navy program to test respirators for use in controlling exposures to NG (EGDN is not used in military facilities). OSHA may negotiate agreements with the Department of Defense, NASA, the Navy, the Army and other armed forces to control exposures to NG. As an Army contractor at Radford, Hercules will, if requested, participate in negotiations. At such time as an agreement is concluded with the Army, Hercules agrees that its operations at Radford will be subject to the terms of that agreement. At such time as an agreement is concluded between OSHA and the government agencies, Hercules' government contracting activities will be governed as appropriate by the agreement between OSHA and that other government agency or agencies.
2. Nothing in this agreement shall be construed to mean that OSHA is foreclosed from taking the position that exposures to NG or EGDN should be reduced based on current information, or that respirators may be safely used in appropriate circumstances.
3. (a) If manufacturers other than the parties to this agreement commence manufacturing civilian explosives from NG and/or EGDN, OSHA will attempt to negotiate a similar agreement with them. If agreement is not reached, OSHA may commence a rulemaking regarding exposure limits for NG and EGDN earlier than is stated in this agreement. However, no new requirements will apply to Atlas, Ireco, Hercules and Austin earlier than the dates specified in this settlement agreement.
(b) OSHA will provide written notice to IME if it intends to commence a rulemaking pursuant to subsection (a) above.
(c) Any other civilian contractors for the Department of Defense and armed forces shall be subject, in respect of their military production, to the terms of agreements between OSHA, and the other government agency or agencies.
4. (a) Atlas, Ireco, Hercules, and Austin will permit employees of the OSHA Offices of Health Standards or Regulatory Analysis to review their civilian NG and NG/EGDN production facilities upon reasonable notice, and at reasonable times, to evaluate the effectiveness of engineering controls, work practices and respirators, that are subject to the terms of this Settlement Agreement. Reasonable notice shall include such notice as is required to permit the company to make available to accompany the visiting OSHA employees, a company official who is knowledgeable about the projects and processes to be reviewed.
(b) OSHA shall not, without prior written permission, disclose to any third person confidential business information about the equipment and processes used in individual company production facilities that it obtains as a consequence of this Settlement Agreement.
(c) Compliance inspections shall be subject to the laws and regulations pertaining to such inspections.
5. Notices or reports required by this agreement to be given to the other party shall be given as set forth below.
(a) for IME Mr. Frederick P. Smith, Jr. President Institute of Makers of Explosives. 1120 19th Street, N.W. Suite 310 Washington, D.C. 20036-3605 Tel: 202-429-9280; and (b) for OSHA: Director of Health Standards Occupational Safety and Health Administration United States Department of Labor 200 Constitution Avenue, N.W. Room N-3718 Washington, D.C. 20210
6. The parties agree to bear their own attorneys' fees, costs and other expenses that have been incurred in connection with the