IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

SETTLEMENT AGREEMENT

The Building and Construction Trades Department, AFL-CIO (BTCD), has sought judicial review of revised asbestos standards issued by the Occupational Safety and Health Administration (OSHA) on August 10, 1994, 59 Fed. Reg. 40964, and of amendments to those standards issued on June 29 and September 29, 1995. 60 Fed. Reg. 33974 (June 29, 2995); 60 Fed Reg. 50411 (Sept. 29, 1995). In order to resolve the issues raised by the petitions, the parties hereby agree to the following.

1. Training for Class II and Class III work: The training requirements of the construction and shipyard standards will be modified to assure that the training received by employees who perform asbestos removal work is appropriate for the type of work in which they engage. The August 10, 1994 standard contained a requirement that workers who engage in Class II removals receive the same 32-hour asbestos abatement worker course as workers who engage in Class I removals but permitted training of shorter duration for workers who engage in Class II removals of only one generic category of material. The intent was to assure that employees who engage in general asbestos abatement work, including Class II removals, and whose work requires the most stringent precautions (such as critical barriers and negative pressure enclosures) receive the full training necessary for proper conduct of such work, while providing that employees who engage in Class II removals on a single or limited number of generic types of material receive appropriate training for the work they do.

In the June 29, 1995 corrections, the provisions dealing with training of workers who engage in limited types of Class II removals were modified to assure that the degree of training reflected the nature of the work being done. However, the training provision applicable to employees whose work includes Class II removals that require the use of critical barriers or negative pressure enclosures was inadvertently deleted. The changes described in this paragraph will restore the 32-hour training requirement for such workers. Moreover, to more clearly distinguish the workers who require 32-hour training from those who do not, the language of the rule will now state explicitly that 32-hour training must be given when the construction and shipyard standards require the use of critical barriers or negative pressure enclosures.

The training provisions applicable to workers who engage in Class II and Class III removals on a single or limited number of generic types of material will be modified to state more clearly that such employees must receive training specific to all type(s) of materials, work practices, and removal methods applicable to their work.

Accordingly, paragraph (k)(9)(iii) of the construction and shipyard standards will be amended to read as follows:

Training for Class I operations and for Class II operations that require the use of critical barriers (or equivalent isolation methods) and/or negative pressure enclosures under this section shall be the equivalent in curriculum, training method and length to the EPA Model Accreditation Plan (MAP) asbestos abatement workers training (40 CFR Part 763, subpart E, appendix C).

Paragraph (k)(9)(iv) of the construction and shipyard standards will be amended to read as follows:

(iv) Training for other Class II work. (A) For work with asbestos containing roofing materials, flooring materials, siding materials, ceiling tiles, or transite panels, training shall include at a minimum all the elements included in paragraph (k)(9)(viii) of this section and in addition, the specific work practices engineering controls set forth in paragraph (g) of this section which specifically relate to that category. Such course shall include "hands-on" training and shall take at least 8 hours.

(B) An employee who works with more than one of the categories of material specified in paragraph (k)(9)(iv)(A) of this section shall receive training in the work practices applicable to each category of material that the employee removes and each removal method that the employee uses.

(C) For Class II operations not involving the categories of material specified in paragraph (k)(9)(iv)(A) of this section, training shall be provided which shall include at a minimum all the elements included in paragraph (k)(9)(viii) of this section and in addition, the specific work practices and engineering controls set forth in paragraph (g) of this section which specifically relate to the category of material being removed, and shall include "hands-on" training in the work practices applicable to each category of material that the employee removes and each removal method that the uses.

Paragraph (k)(9)(v) of the construction and shipyard standards will be amended to read as follows:

(v) Training for Class III employees shall be consistent with EPA requirements for training of local education agency maintenance and custodial staff as set forth at 40 CFR 763.92 (a) (2). Such a course shall also include "hands-on" training and shall take at least 16 hours. Exception: For Class III operations for which the competent person determines that the EPA curriculum does not adequately cover the training needed to perform that activity, training shall include as a minimum all the elements included in paragraph (k)(9)(viii) of this section and in addition, the specific work practices and engineering controls set forth in paragraph (g) of this section which specifically relate to that activity, and shall include "hands-on" training in the work practices applicable to each category of material that the employee removes and each removal method that the employee uses.

2. Training topics: In the preamble to the Federal Register notice that effectuates the changes in regulatory language specified in this agreement, OSHA will explain that the employee training under paragraph (k)(9) in the construction and shipyard standards and paragraph (j)(7) in the general industry standard, although it may include reliance on written materials and electronic media such as videotapes, must take place with a knowledgeable instructor (such as a person who qualifies as a "competent person") present or readily available and that the employees must have the opportunity to question the instructor regarding the topics covered training. OSHA will further explain that the standards' requirement for the training to be conducted in a manner that the employee is able to understand means that (1) any written or electronic media used in the training shall be presented at an appropriate reading level; and (2) reasonable steps must be taken to assure that employees who are not fluent in English understand the content of the training.

3. Availability of powered, air-purifying respirators: Paragraph (h)(2)(iii) of the construction and shipyard standards will be will be amended to read as follows:

(iii) The employer shall provide a tight fitting powered, air-purifying respirator in lieu of any negative-pressure respirator specified in Table 1 whenever:
(A) an employee chooses to use this type of respirator; and
(B) this respirator will provide adequate protection to the employee.
The employer shall inform any employee required to wear a respirator under this paragraph that the employee may require the employer to provide a powered, air-purifying respirator in lieu of a negative pressure respirator.

4. Medical surveillance: The August 10, 1994 rule required medical surveillance for all workers who, for a combined total of 30 or more days per year, either engaged in Class I, II or III work or were exposed over a permissible exposure limit (PEL). The rule's intent was to count towards the medical surveillance requirement all of the days in which an employee engaged in either Class I or Class II or Class III work or, regardless of the type of work being done, was exposed over a PEL. On June 29, 1995, the medical surveillance provision was modified in a way suggesting that days an employee was exposed over a PEL should be counted separately towards 30-day requirement rather being combined with days in which the employee engaged in Class I, II, or III work. This was not OSHA's intent, and the rule will be modified to make clear that days in which a worker is exposed over a PEL must be aggregated with any other days in which an employee engages in Class I, II or III work.

The medical surveillance provision specifies that employers need not count days in which an employee engages in Class II or III work, using compliant work practices, for one hour or less. This provision is being modified to provide that such days may only be excluded if the material being removed or disturbed is intact. When material that is non-intact is removed or disturbed, the potential for significant exposure exists, and any day in which removal of non-intact material takes place should be counted for medical surveillance purposes. This provision will also be clarified by stating that the one-hour time period includes the entire Class II or Class III removal operation, including cleanup.

Accordingly, paragraph (m)(1)(i)(A) of the construction and shipyard standards will be amended to read as follows:

The employer shall institute a medical surveillance program for all employees who for a combined total of 30 or more days per year are engaged in Class I, II and III work or are exposed at or above a permissible exposure limit. For purposes of this subparagraph, any day in which a worker engages in Class II or Class III operations or a combination thereof on intact material for one hour or less (taking into account the entire time spent on the removal operation, including cleanup) and, while doing so, adheres fully to the work practices specified in this standard, shall not be counted.

5. Pre-job reporting information: OSHA will make reasonable efforts to see that its area offices obtain copies of a sample of the forms that employers must submit to the Environmental Protection Agency pursuant to 40 C.F.R. § 61.145. OSHA will, to the extent permitted by available resources and other enforcement priorities, treat a percentage of the forms as "referrals" and investigate them in a timely manner in accordance with Chapter I.C.10 of the OSHA Field Inspection Reference Manual.

6. Warning Signs: Paragraph (k)(8)(vii) of the construction and shipyard standards will be amended to read as follows:

When a building owner or employer identifies previously installed PACM and/or ACM, labels or signs shall be affixed or posted so that employees will be notified of what materials contain PACM and/or ACM. The employer shall attach such labels in areas where they will clearly be noticed by employees who are likely to be exposed, such as at the entrance to mechanical room/areas. Signs required by paragraph (k)(6) of this section may be posted in lieu of labels so long as they contain information required for labelling. The employer shall ensure, to the extent feasible, that employees who come in contact with these signs or labels can comprehend them. Means to ensure employee comprehension may include the use of foreign languages, pictographs, graphics, and awareness training.

Paragraph (k)(6) of the construction and shipyard standards, and paragraph (j)(3)(v) of the general industry standard, will be amended to read as follows:

At the entrance to mechanical rooms/areas in which employees reasonably can be expected to enter and which contain ACM and/or PACM, the building owner shall post signs which identify the material which is present, its location, and appropriate work practices which, if followed, will ensure that and/or PACM will not be disturbed. The employer shall ensure, to the extent feasible, that employees who come in contact with these signs can comprehend them. Means to ensure employee comprehension may include the use of foreign languages, pictographs, graphics, and awareness training.

7. Labels: In the preamble to the Federal Register notice that effectuates the changes in regulatory language specified in this agreement, OSHA will explain that, consistent with the discussion at 55 Fed. Reg. 3724, 3730 (Feb. 5, 1990) the training in the content of signs and labels required by the standards must include reasonable steps to effectively inform employees who are not fluent in English so they will understand the warnings provided by the labels and signs.

8. One waste bag limitation for Class II work: In the the preamble to the Federal Register notice that effectuates the changes in regulatory language specified in this agreement, OSHA will explain (1) that ACM and/or PACM is only considered to be "contained" in a glove bag or waste bag, within the definition of "disturbance" in paragraph (b) of the construction and shipyard standards, if the bag is filled only to the point where it can be sealed effectively and will not become opened inadvertently or broken during normal handling; and (2) that it is generally proper practice fill a bag only 1/3 to 1/2 full to facilitate secure closure and avoid breakage.

9. Inclusion of agreement in compliance directive: Within 60 days of the date of execution of this settlement agreement, OSHA will transmit copies of the agreement to its area offices and instruct them that it should be regarded as an appendix to the compliance directive, OSHA Instruction CPL 2-2.63, issued on November 3, 1995.

10. This settlement agreement, and the regulatory amendments for which it provides, are not intended to modify or supersede the terms of any earlier settlement agreements pertaining to the construction, shipyard, and general industry standards that OSHA entered into with the Safe Buildings Alliance (dated March 13, 1995), the National Roofing Contractors Association et al, (dated March 15, 1995), and Azrock Industries et al. (dated June 15, 1995).

11. Within 120 days of the date of this agreement, OSHA will file with the Office of the Federal Register a document effectuating the provisions of this agreement that require publication in the Federal Register.

12. Within 30 days of the date of this agreement, BCTD and OSHA will file with the Court of Appeals a joint motion to withdraw BCTD's petition for review without prejudice to its ability to reinstate the petition if OSHA does not comply with any part of this agreement or if any person seeks judicial review or this agreement or any of the amendments to the standards made pursuant to this agreement. OSHA will consent to any future motion by BCTD to extend the time period in which it may reinstate its petition for review.

13. By entering into the agreement, the parties do not concede the validity or invalidity of any claim or argument that any party could have raised in litigation.

14. The parties to this agreement shall bear their own costs and attorney fees.

Agreed, this 22nd day of April, 1996.

THE UNITED STATES DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND ADMINISTRATION

By           (Signed)          
Joseph A. Dear, Assistant Secretary
Occupational Safety and Health Administration

BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO

By           (Signed)          
Nora H. Leyland , its attorney