___________________________________ ) SAFT AMERICA, INC. ) ) Petitioner, ) ) v. ) Docket No. 92-9098 ) ROBERT REICH, U.S. SECRETARY OF ) LABOR, AND OCCUPATIONAL SAFETY AND ) HEALTH ADMINISTRATION, ) ) Respondents. ) ___________________________________)
Pursuant to Federal Rule of Appellate Procedure 42(b), Petitioner SAFT America, Inc. (SAFT), and Respondents Robert Reich, U.S. Secretary of Labor, and Occupational Safety and Health Administration (OSHA), by and through their attorneys, hereby enter into this Agreement for the settlement of this litigation.
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, SAFT has petitioned for review of the Cadmium Standard in the above-captioned proceeding; and
WHEREAS, SAFT and OSHA wish to resolve certain issues relating to the Cadmium Standard and thereby settle this proceeding;
THEREFORE, SAFT and OSHA agree as follows:
1. OSHA agrees that SAFT may include in its Compliance Plan for the Cadmium Standard the provisions set forth in Appendix A to this Agreement, and that compliance by SAFT with each such provision shall constitute compliance by SAFT 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. SAFT 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 SAFT petition with prejudice.
3. SAFT 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 SAFT petition.
IN WITNESS WHEREOF the parties have executed this Agreement as of the 19th day of March, 1993.
SAFT AMERICA, INC. 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
This plan describes engineering controls and work practices for controlling employee exposure to cadmium in the nickel-cadmium battery manufacturing facility owned and operated by SAFT American Inc. (SAFT) at 711 Industrial Boulevard, Valdosta, Georgia. SAFT believes that by December 31, 1995 the engineering and work practice controls described in this plan will reduce exposure to airborne cadmium below the action level for 70% of cadmium-exposed employees and to or below the PEL of 5 ug/m(3) for all of the employees in the plant. If successful, SAFT will not have obligations under the cadmium standard that require protective measures to be taken when employee exposures exceed the PEL, including provisions for the use of respirators, protective work clothing and equipment, and hygiene areas and practices. The parties agree that reduction of employee exposures to or below the PEL through engineering and work practice controls will better protect employees than the alternative permitted by the standard of reducing exposures to or below the SECALs through engineering and work practice controls and relying on respirators, protective work clothing and equipment, and hygiene areas and practices to protect employees against excessive cadmium exposure. Accordingly, this plan takes into account some of SAFT's unique worksite conditions and enables SAFT to focus its available resources on achieving the PEL and/or action level through engineering and work practice controls. The plan minimizes the need to provide certain costly items that will not be required if SAFT succeeds in lowering exposure levels to or below the PEL while still providing adequate interim protection for employees while engineering and work practice controls are being implemented.
2. APPLICATION OF PEL
SAFT's employees currently work 12-hour shifts on three consecutive days and are then off work the next three consecutive days. In view of the fact that the adverse health effects the standard is intended to prevent result from cadmium accumulated from chronic exposure, that OSHA is not aware of any dose-rate effect, and that OSHA is not aware of evidence that short-term cadmium exposure produces adverse acute health effects at the levels shown by historical monitoring data to be present in SAFT's facility, the parties agree that SAFT will be in compliance with 29 C.F.R. 1910.1027(c) for employees whose work shifts are described above if an employee's time-weighted-average exposure, measured over every consecutive eight-hour period, no matter when begun, during a work shift is 5 ug/m(3) or less.
3. ENGINEERING CONTROLS
In order to satisfy the requirement of 29 C.F.R. 1910.1027(f) for engineering controls, SAFT shall do the following:
Plate Making and Plate Preparation
1. Install dust-free despiraling by December 31, 1993.
2. Install dust-free pay-off at ECC 1 & 2 (the cleaning process following impregnation) by December 31, 1993.
3. Install shrouds and particulate catch pans at six post "ready" stations on impregnation lines by December 31, 1993.
4. Install drying vessel particulate capture modifications for five impregnation vessels by December 31, 1994.
5. Install central HEPA Vacuum System with drops at Impregnation Lines, ECC machines, and Despiral area by December 31, 1994.
6. Install pneumatic seal on mixing bowl in Plastic Bonded Electrode (PBE) Mix Facility by December 31, 1994.
7. Install HEPA vacuum ventilation or other equally effective dust-removal method at PBE decortication station by December 31, 1994.
8. Enclose and ventilate AA and Sub-C coilers (winders) by December 31, 1995.
9. Install dust control ventilation on all PSD Plate Preparation department equipment by December 31, 1995.
10. Install enclosures and ventilation on all PBD Electrode Assembly Department equipment by December 31, 1995.
11. Enclose and ventilate to the extent necessary the PBD Electrode Assembly Department by December 31, 1995.
12. As equipment used to control cadmium exposure is installed, develop and implement a comprehensive preventive maintenance program to assure that the equipment continues to operate properly and achieve its intended purpose.
4. WORK PRACTICES
In order to satisfy the requirement of 29 C.F.R. 1910.1027(f) for work practice controls, SAFT shall:
1. Discontinue the use of fans which may cause dispersion of cadmium dusts by March 14, 1993.
2. Clean the Chemical Plant to remove accumulated cadmium dust by December 31, 1994.
3. Clean the Assembly Plant to remove accumulated cadmium dust by December 31, 1995.
4. Establish a work practice team by March 22, 1993, to monitor work practice improvements during the life of this compliance plan and determine whether additional modifications to work practices can further reduce exposure of employees to cadmium.
In order to satisfy the lunchroom facilities requirement of 29 C.F.R. 1910.1027(j)(4)(ii), SAFT shall install by December 14, 1993, in the aisleway leading to the lunchroom, an air tunnel that removes cadmium dust from employees' clothing without dispersing it and shall require employees to pass through the air shower prior to entering the vending and cafeteria areas for break and lunch.
6. SHOWER FACILITY
In order to satisfy the provisions of 29 C.F.R. 1910.1027(j)(1) and (j)(3) requiring wet showers, SAFT shall require all employees exposed above the PEL to pass through the air tunnel described in the previous section at the end of their work shift. If engineering and work practice controls have not succeeded in reducing all employee exposures to or below the PEL by December 31, 1995, then SAFT shall comply with paragraphs (j)(1) and (j)(3) by April 30, 1996. If, however, in accordance with section 6(d) of the OSH Act, SAFT is able to present sufficient objective evidence that its air shower is as effective as a wet shower in removing cadmium from employees' hair and skin, OSHA will grant a permanent variance from the wet shower requirement.
7. EMPLOYEE NOTIFICATION
In order to satisfy the employee notification requirement of 29 C.F.R. 1910.1027(d)(5)(ii), SAFT shall, within 15 days of its receipt of a monitoring result showing that an employee is exposed over the PEL, provide such employee with a list of possible solutions and shall refer the air monitoring results to the Work Practice Team, Supervisor, and Area Manager, who shall assess the action needed. Within 30 working days of the receipt of the monitoring results, SAFT shall post a report in the affected employee area of their findings and either the corrective action taken or the reasons why no corrective action is necessary or feasible.
8. LUNCHROOM MAINTENANCE
In order to meet the requirement of 29 C.F.R. 1910.1027(j)(4) that "tables for eating are maintained free of cadmium," SAFT shall assure that lunchroom tables are wet wiped before each use.
9. EXPOSURE MONITORING
In order to satisfy the exposure monitoring requirement of 29 C.F.R. 1910.1027(d)(1)(iii), SAFT may monitor each job category by sampling the representative fraction of the employees who perform the job category who are expected to have the highest cadmium exposure. SAFT may limit monitoring to between the hours of 7:00 a.m. and 7:00 p.m. unless variations in worksite conditions or processes provide a reason to believe that employees who work between 7:00 p.m. and 7:00 a.m. will experience higher exposures than those who work between 7:00 a.m. and 7:00 p.m., in which case representative sampling between 7:00 p.m. and 7:00 a.m. shall be conducted. All samples shall be sent to an outside accredited analytical laboratory for analysis.
10. MEDICAL REMOVAL PROTECTION.
After January 1, 1999, SAFT shall fully comply with the requirements of 29 C.F.R. 1910.1027(l)(3)(ii)-(iv) for medical removal of exposed employees. Between March 22, 1993 and January 1, 1999, SAFT shall either:
(a) fully comply with the requirements of 29 C.F.R. 1910.1027(l)(3)(ii)-(iv); or
(b) comply with the following medical removal protocol:
Any employee subject to medical surveillance shall be removed to a job having airborne cadmium exposure below the action level whenever biological monitoring test results show either
(i) B(2)-M level to be above 300 ug/g Cr coupled with either CdU level above 3 ug/g Cr or CdB level above 5 ug/lwb; (ii) CdB level to be above 10 ug/lwb; (iii) B(2)-M to be above 750 u/g Cr; or (iv) CdU level to be above:
(A) 10 ug/g Cr, between July 1, 1993 and July 1, 1995;
(B) 9 ug/g Cr, between July 2, 1995 and July 1, 1996;
(C) 8 ug/g Cr, between July 2, 1996 and July 1, 1997; and
(D) 7 ug/g Cr, thereafter.
This protocol eliminates the physician's obligation under paragraphs (l)(3)(ii)-(iv) to determine in writing whether an employee should be medically removed when 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)(l)(A).
By July 1, 1993, SAFT shall notify OSHA of the choice it has made between (a) and (b).
11. INITIAL MEDICAL EXAMINATION
In order to comply with the requirement of 29 C.F.R. 1910.1027(l)(2) for initial medical examinations, SAFT shall, by April 14, 1993, provide an initial medical examination that covers the subjects specified in paragraphs (l)(2)(ii)(A) and (B)(1) to each employee covered by the medical surveillance program required in paragraph (l)(1)(i) who has not been provided, after April 14, 1992, a medical examination that includes measurement of CdU. Any employee whose most recent examination showed a CdU level above 3 ug/g creatinine shall be provided a complete initial medical examination by April 14, 1993 and treated in accordance with the medical surveillance provisions of the standard. In addition, SAFT shall provide all employees covered by the medical surveillance program a periodic medical examination in accordance with paragraph (l)(4)(ii) by December 31, 1993. And for those employees who received a company-provided medical examination after April 14, 1992, SAFT shall provide a complete initial medical examination or a periodic medical examination within one year of the employee's most recent examination.
12. CHANGE ROOM
In order to comply with the requirements of 29 C.F.R. 1910.1027(i)(2)(i) and (j)(2), SAFT shall provide a change room in full compliance with the standard by April 30, 1996 if some employees remain exposed above the PEL after December 31, 1995. Effective March 22, 1993, while SAFT need not provide such a change room, SAFT shall assure that employees who are required by paragraph (i)(1) to use protective clothing and equipment remove and store that clothing and equipment in a manner that minimizes dispersion of cadmium and prevents contamination of the employee's street clothes.