IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________________________ AZROCK INDUSTRIES INC., and FLOORS & INTERIORS, INC., Petitioners, v. No. 94-40797 OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, Respondent. _____________________________________________ HILLCREST FLOORS, INC., Petitioner, v. No. 94-41051 OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, Respondent. _____________________________________________ ARMSTRONG WORLD INDUSTRIES, INC., Petitioner, v. No.94-41068 OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, Respondent. _____________________________________________ GAF CORPORATION, Petitioner, v. No. 95-60125 OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, Respondent. _____________________________________________
The Petitioners in the above-captioned cases have sought judicial review of a revised asbestos standard for construction work issued by the Occupational Safety and Health Administration (OSHA) on August 10, 1994. 59 Fed. Reg. 40964, to be codified at 29 C.F.R. 1926.1101. In order to resolve the issues raised by the petitions, the parties hereby agree to the following.
1. Negative Exposure Assessment: The asbestos rulemaking record contains many measurements, collected under a variety of worksite conditions, showing worker exposures during removals of asbestos-containing floor tile, sheet vinyl floor covering, and flooring adhesive (hereinafter collectively referred to as "flooring material"). The measurements were collected to determine whether flooring removal operations complied with OSHA's 1986 asbestos standard, which set an action level of 0.1 f/cc as an 8-hour time weighted average, an 8-hour time weighted average exposure limit of 0.2 f/cc, and an excursion limit of 1.0 f/cc averaged over 30 minutes. The 8-hour time weighted average exposure limit (TWA) under the revised standard is equal to the action level under the 1986 standard and the excursion limits under both standards are the same, so the data in the rulemaking record are relevant in determining whether flooring removal operations can be conducted within the exposure limits specified in the revised standard.
The data show that use of certain work practices during removal of flooring material consistently result in worker exposures below the TWA and excursion limit established by the revised standard. For example, measurements in the ENVIRON reports in the rulemaking record showed exposure levels below the TWA and excursion limit when the following work practices were used.
Removal of sheet vinyl floor covering:
* Before removal begins, the entire. floor is vacuumed using a HEPA vacuum with a metal floor attachment.
* The material is sliced with a sharp edged instrument, such as a utility knife, into strips approximately 4 to 8 inches wide.
* Each strip is rolled up tightly from end to end. * As each strip is rolled up, a constant mist of water or amended water is sprayed into the point where the material separates from the backing.
* After a strip has been removed, it is placed in a heavy duty impermeable trash bag or other closed leak-tight container.
* After three strips of flooring material are removed, any residual felt, after being thoroughly wetted, is removed with a stiff-bladed scraper. The felt scrapings are placed while still wet in an impermeable trash bag or other closed leak-tight container.
* As removal progresses, areas from which the flooring has been removed are vacuumed using a HEPA vacuum with a metal floor attachment.
* After the entire floor has been removed and has dried, it is vacuumed using a HEPA vacuum with a metal floor attachment.
Removal of floor tiles and associated adhesives:
* Before removal begins, the entire floor is vacuumed using a HEPA vacuum with a metal floor attachment.
* Each floor tile is pried up individually using a stiff bladed scraper. If a tile does not release from the adhesive when the scraper is forced under the tile by hand, the scraper may be struck with a hammer to cause the tile to release and/or the tile is heated (e.g. using a hot air gun) to soften the adhesive and facilitate removal.
* Alternatively, without first prying up floor tiles using a scraper, heat is applied to the floor tile from a heat source (e.g. infrared heat machine) and the tiles are removed by hand or by using a scraper.
* After the tile is removed, it is placed in a heavy duty impermeable trash bag or other closed leak-tight container without further breakage.
* As small areas of floor are cleared of tile, residual adhesive is removed, to the extent necessary to prepare the surface for installation of new flooring material, by being wetted and scraped using a stiff bladed floor scraper.
* Alternatively, after the tile is removed, residual adhesive is removed by using a low speed floor machine and wetted sand or a removal solution.
* Adhesive residues are placed while still wet in a heavy duty impermeable trash bag or other closed leak-tight container.
* The area from which the adhesive has been removed is vacuumed using a HEPA vacuum with a metal floor attachment.
* After the entire floor has been removed and has dried, it is vacuumed using a HEPA vacuum with a metal floor attachment.
In addition to the work practices used when the measurements in the ENVIRON reports were made, the revised standard requires wetting of tiles prior to removal when the tiles are not heated (see 1101(g)(1)(ii) & (g)(8)(i)(H) and paragraph 9 of this Agreement). Removal of flooring material using the above work practices, including wetting of unheated tiles prior to removal (see paragraph 9 of this Agreement), fully complies with the requirements of 1101(g)(1), (g)(2), and (g)(8)(i). This Agreement will refer to this combination of work practices as "compliant work practices."
Based on the data in the rulemaking record, OSHA concludes that employee exposures will consistently be below the TWA and excursion limit during removal of intact (see 1101(b) and paragraph 2 of this Agreement) flooring material when compliant work practices are followed. Accordingly, without determining whether the data meet the criteria for "objective data" in 1101(f)(2)(iii)(A), OSHA concludes that employers may rely on the data in the rulemaking record to make negative exposure assessments for floor removal operations when: (1) only compliant work practices are used; (2) all workers engaged in the removal are trained in accordance with the provisions of 1101(k)(8); and (3) before removal begins, a competent person assesses the job and determines that the flooring material is "intact" within the meaning of 1101(b.) and is likely to remain "intact" throughout the removal process. (See paragraph 2 of this Agreement for the meaning of "intact").
The rulemaking record also shows that exposure levels can exceed the TWA when removal methods that are not designed to minimize release of asbestos fibers are used. Therefore, an OSHA compliance officer may determine that a negative exposure assessment is not justified if compliant work practices are not being followed, if the employees performing the removal work are not trained in accordance with the standard, or if the flooring material is not removed intact. (See 1101(b) and paragraph 2 of this Agreement). Moreover, if OSHA field data or other information, weighed against the data in the rulemaking record, show that exposures during particular floor removal operations in which compliant work practices are used are likely to exceed the TWA or excursion limit, OSHA reserves the right to reconsider, after providing these Petitioners an opportunity to comment on such field data or other information, whether flooring contractors can continue to make negative exposure assessments for such particular floor removal operations based solely on the data in the rulemaking record.
2. Definition of Intact: The term "intact" is defined at 1101(b) to mean "that the ACM has not crumbled, been pulverized, or otherwise deteriorated so that it is no longer likely to be bound with its matrix." In accordance with this definition, the incidental breakage of flooring material, including slicing of sheet vinyl floor covering with a sharp edged instrument, during removal operations conducted in accordance with compliant work practices (see paragraph 1 of this Agreement) does not mean that the material is not removed in an "intact" condition within the meaning of 1101(b) and 1101(g)(8)(i)(G) & (H), and a "substantially intact" state within the meaning of 1101(g)(7)(ii) and (h)(1)(ii). Rather, the issue of whether flooring material is "intact" or "substantially intact" is determined by whether the flooring material (whether broken or not) has crumbled, been pulverized, or has otherwise deteriorated so that it is not likely to be bound with its matrix. The incidental breakage of flooring materials, or slicing of sheet vinyl floor covering with a sharp edged instrument, during removal of flooring materials conducted in accordance with compliant work practices (see paragraph 1 of this Agreement) also does not mean that such operations constitute an "aggressive method" within the meaning of 1101(b).
3. Competent Person Training: In order to comply with the requirement of 1101(o)(4)(i) regarding competent person training, any removal of flooring material in which the material is not removed intact (see 1101(b) and paragraph 2 of this Agreement) must be supervised by a competent person who has successfully completed a training course meeting the criteria of EPA's Model Accreditation Plan (40 CFR 763) for supervisors. In accordance with 1101(q)(3)(vii), as amended (60 Fed. Reg. 9624 (Feb. 21, 1995)), such training shall be completed as soon as possible but no later than July 10, 1995. A flooring removal project in which compliant work practices (see paragraph l of this Agreement) are used and the material is removed intact (see 1101(b) and paragraph 2 of this Agreement) may be supervised by a competent person who has successfully completed a training course providing instruction in the matters listed on the outline attached as Appendix A to this Agreement, provided that person otherwise meets the definition of a competent person in 29 CFR 1926.32(f). Such training course shall be at least 12 hours in duration. If a job is being supervised by a competent person who has not completed a training course meeting the criteria of EPA's Model Accreditation Plan for supervisors and, during the course of that job, it is found that the flooring material cannot be removed intact (see 1101(b) and paragraph 2 of this Agreement), work must be stopped until the job can be evaluated and supervised by a competent person who has completed such a training course.
The training course for competent persons who supervise removal of intact (see 1101(b) and paragraph 2 of this Agreement) flooring material using compliant work practices (see paragraph 1 of this Agreement) shall be completed as soon as possible but no later than November 10, 1995. A person who has successfully completed the employee training required by 1101(k)(8), as clarified under paragraph 10 of this Agreement, may satisfy the competent person training requirement by successfully completing the "Additional Training Course" set forth in Appendix A to this Agreement at a separate training session, which shall be at least 4 hours in duration.
4. Jobsite Inspections by Competent Person: In order to comply with the requirement of 1101(o)(2) & (3) that the competent person make frequent and regular inspections of a job site, and the requirement of 1101(o)(3) that for Class II and III jobs, on-site inspections be made at intervals sufficient to assess whether conditions have changed, and at any reasonable time at employee request, the competent person supervising a flooring removal project shall inspect the site prior to the start of removal operations (e.g., during the pre-job bidding process) for purposes of conducting the initial exposure assessment. If a negative exposure assessment is made, the competent person shall thereafter inspect the site within a reasonable time of any employee request or upon learning of any conditions that cast doubt on the validity of the negative exposure assessment, such as unusual difficulty in removing the material.
5. Impermeable Dropcloths: The requirement of 1101(g)(7)(iii) that impermeable dropcloths be placed on surfaces beneath all removal activity does not apply to the removal of flooring material from a solid substrate underneath the material.
6. Notification of Adjacent Employers: In order to comply with the requirement of 1101(k)(2)(ii)(B) for notification of employers of employees who work and/or will be working in areas adjacent to work that is subject to the asbestos standard, employers who remove "intact" flooring material (see 1101(b) and paragraph 2 of this Agreement) using compliant work practices (see paragraph 1 of this Agreement) must notify only employers of employees who, during the removal of flooring material, are or will be working in areas that are not separated from the work area by an impermeable barrier, which may include a wall, closed door or window.
7. Warning Signs: The warning signs required by 1101(k)(6) to demarcate a regulated area need not contain any statement to the effect that respirators and/or protective clothing are required when the asbestos standard does not require that respirators and/or protective clothing be used under the conditions present in the area.
8. Respirator Fit Test Training: Before any employee is assigned to a job in which the employee is required to wear a respirator pursuant to 1101(h), the respirator must be fit tested pursuant to 1101(h)(4)(i)-(ii), and the employee must be given fit test training that complies with 29 C.F.R. 1910.134(e)(5). The requirement of 1101(k)(8)(vi)(E) that employees be trained in the purpose, proper use, fitting instructions, and limitations of respirators as part of the training program required prior to or at the time of initial assignment to any job that is subject to the asbestos standard does not require that hands-on fit testing be given to employees whose assigned duties do not require them to wear respirators.
9. Wetting: For the removal of floor tile not subject to 1101(g)(8)(i)(H), the requirement to use wet methods or wetting agents under 1101(g)(1)(ii) is satisfied by misting the floor tile with water or other wetting agents, provided that the floor tile is removed "intact" within the meaning of 1101(b), as clarified by paragraph 2 of this Agreement.
10. Employee Training: The employee training required by 1101(k)(8) shall be completed no later than November 10, 1995. A person who has completed an 8-hour training course that addresses the topics listed in Appendix A to this Agreement shall have received the training required to conduct removals of intact flooring materials (see 1101(b) and paragraph 2 of this Agreement) using compliant work practices (see paragraph 1 of this Agreement). Additional training in the precautions needed when removing non intact flooring material shall be required before the employee may engage in removal of such material.
A person who, after August 10, 1994, has successfully completed a training course that substantially conforms to the requirements for an 8-hour employee training course set forth in Appendix A to this Agreement shall be deemed to have satisfied the employee training requirement of 1101(k)(8) if the employee certifies by November 10, 1995 that he/she has received and reviewed supplemental training materials which address any subjects not covered in the initial 8-hour course.
11. Removal of Floor Tile Using Heat: The requirement of 1101(h)(1)(iii) that respirators be used during Class II work that is not performed using wet methods does not apply to the non-wet removal of intact floor tile using heat, as provided in 1101(g)(8)(i)(H), when the other compliant work practices (see paragraph 1 of this Agreement) are followed.
12. Identification of ACM and PACM: When work subject to the construction standard is limited to removal, repair, or maintenance of flooring material, the requirements in 1101(k)(1) & (2) for identifying and communicating the presence, location, and quantity of ACM and PACM apply only to the flooring material in the work site or work area respectively.
13. Typographical Corrections: The reference in 1101(g)(7)(iv) to "paragraph (g)(3)(i) through (v)" will be corrected to read "paragraph (g)(1)(i) through (iii)," the reference in 1101(o)(3) to "paragraph (p)(3)(i) and (ii)" will be corrected to read "paragraph (o)(3)(i)," and the reference in 1101(k)(7)(vi) to "paragraphs (k)(2)(i) through (k)(2)(iii)" will be corrected to read "paragraphs (k)(7)(i) through (k)(7)(iii)" in a corrections document to be published in the Federal Register.
14. The interpretations, clarifications and corrections in this Agreement with respect to the provisions of the revised asbestos standard for construction work shall apply to corresponding provisions in the revised asbestos standard for shipyard employment issued by OSHA on August 10, 1994, 59 Fed. Reg. 40964 to be codified at 29 C.F.R. 1915.1001.
15. OSHA will enforce the asbestos standard in accordance with the provisions contained in this Agreement and will not enforce citations issued to any employer who acted in accordance with this Agreement prior to its execution. This Agreement will be transmitted to OSHA's regional and area offices as an appendix to the Compliance Directive relating to the standard. OSHA will provide copies of this Agreement to the Administrators of State Plans approved by OSHA under Section 18 of the Occupational Safety and Health Act and will notify them that the interpretations of the standard set forth in this Agreement, including the provisions of paragraph 1 relating to the making of negative exposure assessments and paragraph 3 related to competent person training, constitute a Federal program change. When it provides copies of this Agreement to State Plan Administrators, OSHA will inform them that any amendment to a State asbestos standard that permits employers to make negative exposure assessments in circumstances consistent with paragraph 1 of this Agreement and that establishes training requirements for competent persons consistent with paragraph 3 of this Agreement, and that is otherwise consistent with the provisions of this Agreement, shall be deemed to be "at least as effective" as the Federal program change.
16. OSHA will publish a Federal Register notice that contains the typographical corrections listed in paragraph 13 of this Agreement and also corrects and amends the standard and its preamble in other ways. In that Federal Register notice, OSHA will not amend the standard in any manner that significantly affects the requirements pertaining to removal of flooring material.
17. This Settlement Agreement is intended for the benefit of and may be relied upon by (a) each of the parties to this Agreement and their respective successors and assigns, and (b) every employer subject to federal OSHA jurisdiction (whether or not a party to this Agreement) that conducts removals of flooring material.
18. Within ten days of the date of execution of this Agreement, these Petitioners shall file motions with the Court to withdraw their petitions.
19. This Agreement does not affect the Petitioners' status as Intervenors in the case involving a Petition by the Building & Construction Trades Department, AFL-CIO, or a Petition by American Federation of State, County and Municipal Employees, or the right to seek Intervenor status in any other petition filed in this case. Should any other party that has petitioned for review of the asbestos standard challenge the flooring provisions of the standard, or should any party challenge the validity of any provision of this Agreement in a judicial proceeding, OSHA will not oppose intervention by the Petitioners in that proceeding.
20. In the event that any party seeks judicial review of any provision of the standard as it applies to flooring operations, OSHA will not, in defending the standard against such a challenge, make any reference to this Agreement or represent in any fashion that Petitioners endorse the standard, or accept the need for, appropriateness or feasibility of any provision of the standard.
21. In the event a reviewing court overturns any interpretation contained herein, OSHA will keep such interpretation in effect until the agency takes subsequent action with respect to such interpretation unless otherwise ordered by the reviewing court.
22. By entering into this Agreement, the parties do not concede the validity or invalidity of any claim or argument that any party could have raised in litigation. Nothing in this Agreement constitutes an admission by Petitioners that a significant risk of material health impairment exists in flooring operations subject to, or not in compliance with, the provisions of the standard affecting such operations or that such provisions are feasible or reasonably necessary or appropriate to protect worker health.
23. The terms of this settlement Agreement may not be modified or amended without the written consent of the parties to this Agreement.
24. All parties will bear their own costs and attorney fees.
Agreed, this 15th day of June, 1995.
THE UNITED STATES DEPARTMENT OF LABOR OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
Joseph A. Dear, Assistant Secretary Occupational Safety and Health Administration
AZROCK INDUSTRIES, INC., FLOORS & INTERIORS, INC., and HILLCREST FLOORS, INC.
William N. Hall, their Attorney
ARMSTRONG WORLD INDUSTRIES, INC.
Bethann Jakoboski, its Attorney
Michael A. Wiegard, its Attorney
REMOVAL OF RESILIENT FLOOR
TRAINING COURSE OUTLINE
These courses are designed to train workers to remove "intact" flooring materials (see 1101(b) and paragraph 2 of this Agreement for meaning of "intact") using compliant work practices (see paragraph 1 of this Agreement for a description of "compliant work practices") and to meet the training requirement for a competent person who supervises removals of intact flooring materials. To qualify as a competent person, a person must complete the 8-hour employee training course (including receiving a passing examination grade) and then successfully complete the additional course, including a passing grade on a separate examination covering Sections 10-13, and must otherwise meet the definition of competent person under 29 CFR 1926.32(f). Completion of these training courses does not qualify workers to remove non-intact flooring material or competent persons to supervise removal of non-intact flooring material.
8-HOUR EMPLOYEE TRAINING COURSE
Section 1 - Background Information on Asbestos (slides, lecture, workbook, quiz) - Characteristics of asbestos - Categories of asbestos-containing building materials - Friable and non-friable condition of materials - List of suspect asbestos-containing materials - Determination/identification of asbestos-containing materials (including presumptions regarding flooring materials) - Control options - Potential health effects related to exposure to airborne asbestos - Hazards of smoking and asbestos exposure - Protective work practices and controls to minimize asbestos exposure Section 2 - Laws and Regulations (video, slides, lecture, workbook, quiz) - Current regulations concerning the removal and disposal of asbestos-containing materials - Regulated areas/Respirators/Negative Air Pressure/ Protective Clothing/Decontamination Procedures - How Regulations are enforced - Federal Government agencies that regulate asbestos removal - OSHA Asbestos Standard - EPA NESHAP - EPA AHERA and ASHARA - DOT Regulations - Difference between federal and state asbestos laws - State and local asbestos regulations - Hazard Communication standard and safety issues Section 3 - Asbestos-Containing Resilient Flooring Materials (slides, lecture, workbook, quiz) - Walk through survey versus bulk sample analysis - Types of floor coverings which contain asbestos - Determining friability of resilient floor coverings (EPA Recommended Test) - Flooring adhesives which contain asbestos - Alternatives to removing asbestos-containing floor covering and adhesives - Methods which should not be used to remove resilient floor covering materials - Waste disposal procedures - Notification requirements Section 4 - Removal of Resilient Floor Tile - Video demonstration of properly removing floor tile - "Hands on" student practice removing floor tiles using heat and without heat - Quiz Section 5 - Removal of Residual Asphaltic Adhesive - Video demonstration of proper procedure for removing adhesive - Review of proper procedure for removing adhesive - "Hands on" student practice removing adhesive - Quiz Section 6 - Removal of Resilient Sheet Flooring - Video demonstration of proper procedure for removing sheet flooring - Live demonstration of proper procedure for removing sheet flooring - "Hands on" student practice removing sheet flooring - Quiz Section 7 - Complete Removal of Wood Underlayment - Video demonstration of proper procedures for removing resilient flooring complete with underlayment - Review of proper procedures for complete removal of wood underlayment Section 8 - Review - Review previous instruction and clarify any unanswered questions Section 9 - Examination Covering Sections 1-7 ADDITIONAL TRAINING COURSE FOR SUPERVISORS OF INTACT REMOVAL OF FLOORING MATERIALS USING COMPLIANT WORK PRACTICES (4-HOUR MINIMUM) Section 10 - Prework Activities and Considerations - Determination of asbestos-containing materials - Methods of identification - Walk through survey/bulk sampling - Common building materials containing asbestos - Review of regulations - OSHA - EPA - DOT - State and Local Section 11 - Assessment of the Work Area - Site preparation considerations - Conducting a Negative Exposure AssessmentIsolating the work area - Adjacent areas - Regulated areas - Safety hazards Section 12 - Notification, Recordkeeping, and Waste Disposal - Recordkeeping requirements - Notification requirements - Warning signs - Special equipment - Transport and disposal of asbestos waste Section 13 - Supervising Workers - Establishing goals - Providing clear instructions - Establishing expectations - Use of supervisory authority - Motivating workers Section 14 - Review and Examination - Review - Examination (covering sections 10-13)