IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________________________ SAFE BUILDINGS ALLIANCE, Petitioner, v. No. 94-41222 THE UNITED STATES DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Respondent. _____________________________________________
The petitioner in the above-captioned case has sought judicial review of the revised asbestos standards for general industry, construction and shipyards issued by the Occupational Safety and Health Administration (OSHA) on August 10, 1994, 59 F.R. 40964, to be codified at 29 CFR 1910.1001, 1915.1001, and 1926.1101. In order to resolve the issues raised by this petition, the parties hereby agree to the following.
1. In order to assure that the Preamble to the asbestos standards is fully consistent with the regulatory text, OSHA will make the following corrections to the preamble to the final standards covering occupational exposure to asbestos (59 FR 40964 et seq.).
a) OSHA will delete the second sentence in paragraph 2, p.40978, col 1, and in its place will insert the following paragraph.
In many places in this Preamble, OSHA refers to "high risk"
ACM and PACM. These terms are not used in the regulatory text. The term "risk" refers to the possibility or potential for injury and does not mean injury will necessarily occur. OSHA uses these terms in the Preamble in a relative sense to describe its findings that TSI and surfacing material are more prevalent and can be more friable than many other asbestos-containing materials in buildings. As discussed elsewhere in the Preamble, OSHA finds that the OSHA-required provisions involving all types of ACM should result in low exposure levels that would protect employees from significant risk.
b) OSHA will delete the phrase "high hazard" on page 40964, column 1, paragraph 1.
c) OSHA will delete the phrase high hazard" three times, on lines 8-9, 10 and 15 of the last paragraph, from the bottom of the first column on p. 41016 and in their place insert the phrase "high risk".
d) OSHA will delete the phrase "high hazard" on line 28 of the third column on p. 41016 and in its place insert the phrase "potentially high risk".
e) OSHA will delete the phrase "any contact with ACM/PACM which releases fibers or which alters its position or arrangement" on the last three lines in column 2 of page 40977 and line 1 of paragraph 1 of column 3. on p. 40977, and in its place substitute the phrase "activities that disrupt the matrix of ACM or PACM, crumble or pulverize ACM or PACM, or generate visible debris from ACM or PACM."
f) OSHA will insert the phrase "perform housekeeping" after the phrase " all employees who", on line 10 of paragraph 2 in the first column on p. 40975.
2. OSHA will correct the regulatory text by making the following redesignations and technical revisions:
a) OSHA will correct 1910.1001 (k)(7)(iv), 1926.1101(l)(4), and 1915.1001 (1)(4) to read as follows:
Waste and debris and accompanying dust in an area containing accessible thermal system insulation or surfacing material or visibly deteriorated ACM...
b) To conform to the above correction, OSHA will correct 1910.1001 (k)(1) to read as follows:
All surfaces shall be maintained as free as practicable of ACM waste and debris and accompanying dust.
c). OSHA will clarify that a rebuttal of PACM must show that the material is not "ACM", defined as material containing more than 1% asbestos. Accordingly OSHA will substitute the term "ACM" for the term "asbestos" and will delete the phrase "in the material" in paragraphs (j)(8)(ii)(A) and (B) in the general industry standard and paragraph (k)(4)(ii)(B) in the shipyards and construction standards.
d) OSHA will correct its definition of the term "disturbance" to clarify the distinction between Class III and Class IV asbestos work. Therefore, the definition of "disturbance" in paragraph (b) of the construction and shipyards standards will be corrected to read:
"Disturbance" means activities that disrupt the matrix of ACM or PACM, crumble or pulverize ACM or PACM, or generate visible debris from ACM or PACM.
e) To further clarify the distinction between Class III and IV asbestos work, OSHA will correct the definition of Class IV asbestos work in 1915.1001(b) and 1926.1101(b) to read as follows:
"Class IV asbestos work means maintenance and custodial activities during which employees contact but do not disturb ACM or PACM and activities to clean up dust, waste and debris resulting from Class I, II and III activities."
f) Paragraph (g)(9)(iii) of the construction and shipyards standards will be corrected to add the phrase "or another isolation method" at the end of the paragraph. As corrected the paragraph will read as follows:
Where the disturbance involves drilling, cutting, abrading, sanding, chipping, breaking, or sawing of thermal system insulation or surfacing material the employer shall use impermeable dropcloths, and shall isolate the operation using mini-enclosures or glove bag systems pursuant to paragraph (g)(3) of this section, or another isolation method."
3. The corrections and additions to the Preamble and regulatory text of the standards contained in this agreement shall be published in the Federal Register as soon as practicable as part of a document containing general corrections and clarifications to the standards. The amendments and additions to the regulatory text shall be effective immediately upon publication in the Federal Register. Before publication, employers may rely on the provisions of this agreement as an expression of OSHA's enforcement policy, and OSHA will not issue citations to any employer who is acting in accordance with the provisions of this agreement.
4. Within ten days of the execution of this Agreement, the Petitioner will file a joint motion on behalf of the Petitioner and OSHA asking the Court to sever this case from the consolidated cases in which other petitions are challenging the asbestos standards and to hold briefing in this case in abeyance until OSHA publishes in the Federal Register the additions and amendments to these standards. If Petitioner's pending motions to intervene in the cases brought challenging the OSHA standards by AFSCME, BCTD and SEIU have been granted, within ten days of the last called for in this Agreement or any other additions or amendments published sua sponte or as called by other Agreements, Petitioner shall, unless it determines that any of the other additions or amendments are inconsistent with the issues covered by this Agreement, file a motion with the Court to withdraw its petition. In no event will Petitioner, once OSHA publishes the additions and amendments called for in this Agreement, raise before the Court any objections to any part of the standards as issued August 10, 1994.
5. OSHA will inform the Petitioner of any other change in the regulatory text which will affect the requirements relating to building owners, which will be included in the Federal Register notice referred to in paragraph 10 of this Agreement.
6. 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.
7. All parties will bear their own costs and attorney fees.
8. The individuals signing this agreement on behalf of the parties hereby certify that they are authorized to bind the respective parties to the terms of this agreement.
Agreed, this 13th day of March, 1995.
THE UNITED STATES DEPARTMENT OF LABOR OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
Joseph A. Dear, Assistant Secretary Occupational Safety and Health Administration
SAFE BUILDINGS ALLIANCE
Timothy S.Hardy, its Attorney