____________________________________ ) THE FERTILIZER INSTITUTE, ) ) Petitioner, ) ) v. ) Docket No. 89-7252 ) THE OCCUPATIONAL SAFETY AND ) HEALTH ADMINISTRATION, ) United States Department of Labor, ) ) Respondent. ) ____________________________________)
The Fertilizer Institute ("TFI") and the Occupational Safety and Health Administration, United States Department of Labor ("OSHA") are the parties to this Agreement.
WHEREAS, OSHA has promulgated an amended Air Contaminants Standard ("Standard"), 54 Fed. Reg. 2332 (Jan. 19, 1989), codified at 29 C.F.R. 1910.1000, revising, inter alia, the permissible exposure limits ("PELs") for ammonia to 35 parts per million ("ppm") as a short-term exposure limit ("STEL"); sulphur dioxide to 2 ppm as an eight-hour time-weighted average ("TWA") and to a 5 ppm STEL; nitrogen dioxide to a 1 ppm STEL; and hydrogen sulfide to a 10 ppm TWA and a 50 ppm STEL; and
WHEREAS, on March 10, 1989, TFI filed on behalf of its members a petition in the above-captioned matter seeking judicial review of the Standard insofar as it amended PELs for the mentioned substances and carbon monoxide, phosphoric acid, fluorides and diethanolamine; and
WHEREAS, TFI asserts as the basis for its petition that (1) OSHA lacks authority to issue the amended PELs for two of the listed chemicals (ammonia and phosphoric acid) because they are merely sensory irritants and exposure to them does not present a "substantial risk of material impairment to health" within the meaning of Section 6(b)(5) of the Occupational Safety and Health Act ("OSH Act"), 29 U.S.C. 655(b)(5) (1982); (2) the amended PELs are deficient because OSHA failed in promulgating them to rely on the "best available evidence" within the meaning of Section 6(b)(5) of the OSH Act; and (3) the Standard is defective because compliance with the PELs is not "feasible" within the meaning of Section 6(b)(5) of the OSH Act; and
WHEREAS, OSHA initiated a rulemaking on June 5, 1989 "proposing to modify the existing provisions for controlling exposures" to the chemicals listed above as established under regulations found at 29 C.F.R. 1910.1000(e) and solicited public comment on such methods of compliance and OSHA's "policy relating to the use of engineering controls and respirators under the Standard." 54 Fed. Reg. 23,991 (June 5, 1989); and
WHEREAS, the regulations at 29 C.F.R. 1910.1000(e), both as they presently exist and as OSHA has proposed to modify them, require that in order "to achieve compliance with [the PELs discussed above], administrative or engineering controls must first be determined and implemented whenever feasible"; and
WHEREAS, OSHA has concluded that the exposure limits it has issued in the Air Contaminants rulemaking, including those for the substances for which TFI has filed a petition for review, are necessary to substantially reduce a significant risk of material impairment of employee health and are technically and economically feasible; and
WHEREAS, OSHA's view and experience is that engineering controls are the preferred method for complying with exposure limits, providing better protection and a higher certainty of protection, and this view is broadly shared by professional industrial hygienists; and
WHEREAS, it also has been OSHA's view that personal protective equipment is sometimes appropriate to supplement engineering controls when feasible engineering controls are not available to achieve an exposure limit in particular circumstances; for maintenance and repair operations where engineering controls need to be disabled to complete the maintenance and repair; for certain intermittent operations in locations where workers are otherwise generally protected by engineering controls; and certain other situations; and
WHEREAS, TFI has presented evidence through comments filed in response to the Methods of Compliance rulemaking that: fertilizer products manufactured by TFI members are produced in closed systems which incorporate appropriate engineering controls such as valves with seals or adjustable packing, closed mixers, etc., which under normal circumstances when properly engineered and maintained present virtually no opportunity for regular or sustained worker exposure to the chemicals listed above at levels exceeding the PELs; if the plant is properly designed, operated and maintained the only significant risk of exposure to the chemicals listed above in TFI member facilities arises from infrequent and unpredictable "fugitive" emissions that occur as a result of occasional leaks in valves, pipes and seals from opening, starting up and shutting down certain equipment and from plant upsets; and that the fertilizer industry employs few workers, virtually none of whom are significantly exposed to the chemical substances listed above; and
WHEREAS, OSHA's experience with the fertilizer industry supports these conclusions; and
WHEREAS, OSHA and TFI are in agreement that the above-described closed production systems, together and in combination with other ventilation systems and air-conditioned control booths/rooms in which most of the non-maintenance personnel employed in the fertilizer industry perform their duties, constitute engineering controls within the meaning of 29 C.F.R. 1910.1000(e); and
WHEREAS, OSHA concludes that this Settlement Agreement is protective of employees because it leaves in effect the exposure limits and hierarchy of controls which OSHA has found necessary to protect employees, clarifies the operations where compliance will generally be achieved with engineering controls and the operations where respiratory protection is appropriate, and eliminates the uncertainties of litigation;
NOW, THEREFORE, the parties to this Settlement Agreement do hereby agree that during (1) the process of supplying raw materials for fertilizer production; (2) fertilizer production; and (3) fertilizer distribution and retailing, the use of personal protective equipment, such as respirators that comply with the performance requirements established at 29 C.F.R. 1910.134, is appropriate for the operations listed below as a supplement to engineering controls to achieve compliance with the PELs for the above-listed chemicals. The parties specifically agree that such use of protective measures is appropriate to achieve compliance in the following activities, so long as existing engineering controls which do not need to be disabled for the described activity remain in operation, purging the system for a reasonable time where feasible will not succeed in reducing exposures below the PELs, and simple engineering controls such as keeping containers covered and using wet washing are utilized where feasible:
1. Maintenance and repair. Such activities include, but are not limited to, cleaning, lubricating, rodding and repairing equipment and operating areas; pressure-checking evaporators; and installing lockouts and tagouts.
2. Inspecting, monitoring, and adjusting equipment and taking product samples, where workers generally monitor plant operations from air-conditioned control booths/rooms, but must occasionally confirm the readings taken in the control room and provide additional data during brief on-site sampling, and such location sampling is infrequent.
3. Plant start-ups, shutdowns and plant upsets. 4. Inspecting and monitoring the operation of granulators, ammoniators, reactors and blungers. Such activities include, but are not limited to, adjusting product flow and discharge.
5. Connecting and disconnecting lines, arms, hoses and pipelines.
6. Unloading and storing molten sulfur. For purposes of this paragraph, it is understood that supplied air respiratory protection is required 7. Loading and unloading fertilizer products. There are engineering controls available for loading and unloading fertilizer products. Feasible controls for bulk loading/unloading may include filtered-air cabs for vehicles and other adequate engineering controls. Maintenance, repair and adjustment at such operations may require respirator use. Bulk loading/unloading of dry products in warehouse/storage facilities may require respirator use for employees outside vehicles. However, appropriate dust control equipment needs to be in place to prevent gross contamination and dust spreading to other areas. Employers may demonstrate in enforcement actions that feasible engineering controls are not available to reduce exposures below the PELs in particular circumstances and supplementary respiratory protection is appropriate.
PROVIDED THAT, nothing in this agreement shall prevent OSHA from issuing citations for failure to keep employee exposures below PELs when the appropriate engineering controls and personal protective measures described above are not in place or are not properly operated or repaired to keep production operations in compliance with PELs.
FURTHERMORE, the parties also agree that:
1. Within five working days after the execution of this Agreement, TFI will move to dismiss its petition for review of the standard.
2. The parties agree to bear their own attorneys' fees, costs and other expenses that have been incurred in connection with the proceedings in the Court of Appeals, up to and including the filing of the motion to dismiss the petition for review.
3. This Settlement Agreement shall be effective when signed in counterparts on behalf of the parties hereto.
___________________________ _____________________________ RICHARD A FLYE CHARLES P. GORDON STANLEY W. LANDFAIR TATJANA M. PETRANOVIC United States Department of Labor Room S-4004 McKenna, Conner & Cuneo 200 Constitution Avenue, N.W. 1575 Eye Street, N.W. Washington, DC 20210 Washington, DC 20005 Counsel for The Counsel for the Fertilizer Institute Occupational Safety and Health Administration _____ MARCH 13 _______, 1990 _____ March 19 ___________ , 1990