IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BUILDING AND CONSTRUCTION
TRADES DEPARTMENT, AFL-CIO,
UNION OF NORTH AMERICA, and
OCCUPATIONAL SAFETY AND
U.S. DEPARTMENT OF LABOR,
|Docket No. 06-2433and consolidated cases
The Building and Construction Trades Department, AFL-CIO, Laborers' International Union of North America, and International Brotherhood of Teamsters (hereafter collectively "Building Trades") and the Occupational Safety and Health Administration, United States Department of Labor ("OSHA") agree to the following terms as a partial settlement of the Building Trades' challenge to OSHA's Hexavalent Chromium Standard.
- Effect of the Settlement Agreement
- This Agreement will resolve the Building Trades' challenge to 29 C.F.R. § 1926.1126, promulgated at 71 Fed. Reg. 10100 (Feb. 28, 2006), OSHA's Hexavalent Chromium Standard for the construction industry..
- In exchange for OSHA's commitment to implement the terms of this settlement by April 20, 2007, the Building Trades agrees to withdraw its petition to review OSHA's Hexavalent Chromium Standard, which is currently pending in the U.S. Court of Appeals for the Third Circuit (BCTD et al. v. OSHA, Case No. 06-2433 (3d Cir.)).
- OSHA will incorporate the terms of Section B into a document entitled "Portland Cement Inspection Procedures," which will apply to work sites where employees are exposed to portland cement. On or before April 20, 2007, OSHA will issue a memo to Regional Administrators instructing compliance safety and health officers ("CSHOs") to review the Portland Cement Inspection Procedures before conducting construction inspections (i.e., inspections of sites where employees are engaged in "construction work" as defined in 29 C.F.R. § 1910.12(b)). OSHA will attach a draft of that document to the memo and instruct CSHOs to follow the protocol set forth for conducting construction inspections where portland cement exposures are present. The "Portland Cement Inspection Procedures" will also be included as an appendix to OSHA's initial Cr(VI) Directive ("Inspection Procedures for the Chromium
(VI) Standards") to be issued to Regional Administrators later in 2007.
- The Cr(VI) Directive will direct CSHOs to report information that will enable OSHA and the public to determine the number of inspections conducted with respect to portland cement exposures and the outcome of those inspections.
- Although this Settlement Agreement is not applicable in the 22 states with OSHA-approved state occupational safety and health plans that cover the private sector, OSHA will strongly encourage these states to honor and implement the terms of this Agreement by implementing inspection requirements for portland cement operations consistent with paragraph A.3 above and Section B below. (States are required to establish enforcement policies and procedures which are at least as effective as OSHA's.)
- OSHA will notify the public of the hazards attendant to work with portland cement, and of the relevant standards, as set forth in Section B below.
- Substantive Terms
- At every OSHA inspection involving construction work, as defined in 29 C.F.R. § 1910.12(b), the CSHO will determine whether work involving portland cement exposure is being performed at the site at the time of the inspection and, if so, whether the relevant employers are in compliance with the standards listed below. OSHA's interpretations of the following standards and regulations are intended to protect employees from both the Cr(VI) and non-Cr(VI) hazards of portland cement and are set forth in paragraph B.3 below:
- Sanitation standard (§ 1926.51(f));
- Personal protective equipment (§ 1926.95);
- Hazard communication (§ 1910.1200, made applicable to construction through § 1926.59);
- Training (§ 1926.21(b) and 1910.1200(h)); and
- Recordkeeping (Part 1904).
- In addition, if the inspector determines that portland cement is being used on the site in one or more of the following processes that potentially expose employees to the inhalation of portland cement dust, the inspector will determine whether the relevant employers are in compliance with § 1926.55 (Gases, vapors, fumes, dusts, and mists):
- terrazzo work;
- mixing mortar; and
- jobsite mixing of concrete.
- The following are OSHA's interpretations of the standards listed in paragraph B.1. The Portland Cement Inspection Procedures will direct CSHOs to follow these interpretations when enforcing these standards at sites where employees are exposed to portland cement:
- Sanitation standard: § 1926.51(f)(1) requires employers to "provide adequate washing facilities for employees engaged in . . . operations where contaminants may be harmful to the employees. Such facilities shall be in near proximity to the worksite and shall be so equipped as to enable employees to remove such substances." (Emphasis added.)
- Due to the caustic and sensitizing properties of portland cement, and consistent with the record evidence presented at the Cr(VI) rulemaking hearings, this provision requires employers whose employees are exposed to portland cement to provide employees with
- clean water;
- non-alkaline soap; and
- clean towels.
- These hygiene facilities must be readily accessible to exposed employees.
- These hygiene facilities must be adequate for the number of exposed employees and the size of the job.
- Personal protective equipment (PPE): § 1926.95(a): "personal protective equipment . . . shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of . . . chemical hazards . . . encountered in a manner capable of causing injury or impairment of any part of the body through absorption . . . or physical contact." This provision applies to portland cement exposures as follows:
- Boots and gloves shall be provided as necessary and appropriate for the job.
- Provisions must be made to enable employees to clean or exchange equipment if it becomes ineffective or contaminated on the inside with portland cement while in use.
- Provisions must be made to ensure that equipment is maintained in a sanitary and reliable condition when not in use.
- Hazard communication (employer duties): § 1910.1200(g)(8): "The employer shall maintain in the workplace copies of the required material safety data sheets for each hazardous chemical, and shall ensure that they are readily accessible during each work shift . . . .":
- Employers are required to obtain, maintain and make available to employees MSDSs and labels for portland cement.
Note: Another provision of the standard, § 1910.1200(g)(2)(i)(C)(2), addresses the content of MSDSs for mixtures. For a mixture that has not been tested as a whole, each MSDS must include: "The chemical and common name(s) of all ingredients which have been determined to be health hazards, and which comprise less than 1% . . . of the mixture, if there is evidence that the ingredients(s) could be released . . . in concentrations which . . . could present a health risk to employees." There is evidence that exposure to the Cr(VI) in portland cement could cause sensitization and allergic dermatitis in employees. Therefore MSDSs for portland cement contaminated by Cr(VI) are expected to indicate the presence of Cr(VI) and to address this hazard. OSHA will address deficiencies in MSDSs in accordance with CPL 02-02-038, Inspection Procedures for the Hazard Communication
- Training: §§ 1926.21(b), 1910.1200(h)
§ 1926.21(b)(3): "Employees required to handle or use poisons, caustics, and other harmful substances shall be instructed regarding the safe handling and use, and be made aware of the potential hazards, personal hygiene, and personal protective measures required."
§ 1910.1200(h)(3): "Employee training shall include at least . . . [t]he physical and health hazards of the chemicals in the work area; [t]he measures employees can take to protect themselves from these hazards, . . . such as appropriate work practices, emergency procedures, and personal protective equipment to be used; and, [t]he details of the hazard communication program developed by the employer, including an explanation of the labeling system and the material safety data sheet, and how employees can obtain and use the appropriate hazard information."
Training for employees exposed to portland cement must include the following:
- Hazards associated with exposure to portland cement, including hazards associated with the cement's Cr(VI) content;
- Preventive measures, including
- proper use and care of PPE;
- importance of proper hygiene practices; and
- Employee access to hygiene facilities, PPE, and information (including MSDSs).
- Recordkeeping: §§ 1904.4 and 1904.7: "Each employer . . . must record each fatality, injury and illness that (1) [i]s work-related; and (2) [i]s a new case; and (3) [m]eets one or more of the general recording criteria of 1904.7. . ."
- Each construction employer subject to Part 1904 must record each work-related case of occupational dermatitis that meets the recordability criteria in 29 C.F.R. § 1904.4 in its illness and injury logs. See also § 1904.6(b)(2).
- § 1904.35(a)(1): Each employer must inform employees of how to report their work-related illnesses and injuries.
- This Agreement constitutes the complete and exclusive statement of agreement between OSHA and the Building Trades with respect to the subject matter herein set forth. All prior or contemporaneous statements, understandings, and agreements by and between the parties, whether written or oral, are deemed to be superseded by this Agreement.
- Each party agrees to bear its own attorneys' fees, costs, and other expenses that have been incurred in connection with the aforementioned litigation and the negotiation of this Agreement.
Agreed to this ______ day of April, 2007.
Victoria L. Bor
Counsel for the Building Trades
SHERMAN, DUNN, COHEN, LEIFER, & YELLIG, P.C.
900 Seventh Street, NW Suite 1000
Washington, DC 20001
Michelle C. Yau
Counsel for OSHA
United States Department of Labor
Office of the Solicitor
200 Constitution Avenue, NW
Washington, DC 20210