UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SETTLEMENT AGREEMENT

Complainant, Hilda L. Solis, Secretary of Labor, United States Department of Labor ("Complainant"), through Complainant's attorneys, and Exel, Inc. ("Respondent") (collectively the "Parties"), through its attorneys, have reached a settlement of the above-captioned case pursuant to 29 C.P.R.§ 2200.100 of the Occupational Safety and Health Review Commission's Rules of Procedure. Accordingly, it is stated and stipulated as follows:

1. The Commission has jurisdiction of this matter pursuant to Section 1 0( c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et ~(hereinafter the "Act").
2. The Parties agree that this Settlement Agreement amends the Citation and Notification of Penalty issued on February 21, 2012, as follows.
   1. Citation 1, Items 1 through 6, will be amended to "unclassified violations of Section 17 of the Act." The total penalty for Citation 1 is $140,000.
   2. Citation 2, Items 1 through 3, which are alleged as "other-than-serious" violations, will remain as issued. The total penalty for Citation 2 is $3,000.00.
   3. The total penalty for amended Citation 1 and Citation 2 is $143,000. Respondent will pay the total penalty of $143,000 within ten days of the entry of an Order Approving this Settlement Agreement. The payment will be made by check payable to "U.S. Department of Labor-- OSHA" and mailed to:

      OSHA Harrisburg Area Office
      Progress Plaza
      49 North Progress Avenue
      Harrisburg, Pennsylvania 17109-3596

3. The Parties agree that this Settlement Agreement further amends the Citation and Notification of Penalty to include the following abatement obligations and actions to be taken by Respondent.

   EDC III OCCUPATIONAL NOISE EXPOSURE ABATEMENT OBLIGATIONS

4. Respondent operates a facility called the Eastern Distribution Center III ("EDC III") at 500 North Lingle Avenue, Palmyra, PA 17078. EDC III consists of the Distribution Center ("DC") and the Co-Pack Operation. The abatement obligations set forth below that are specific to EDC III are intended to apply only to the Co-Pack Operation.
5. Consultant: Respondent shall retain the services of SEA Limited and specifically the services of Ron Thuman, a Certified Safety Professional and Certified Industrial Hygienist, on staff at SEA Limited (hereinafter "Safety Consultant" or "Consultant"). Respondent represents that Mr. Thuman is qualified by education, experience and training to perform occupational noise exposure auditing. If, at any time during the term of this Agreement, Mr. Thuman becomes unavailable to act as Respondent's Safety Consultant, Respondent shall immediately employ the services of another SEA Limited safety consultant who will be a Certified Safety Professional and Certified Industrial Hygienist, and who will be qualified by education, experience and training to perform occupational noise exposure auditing. Additionally, Respondent may use the services of other qualified Certified Safety Professionals on staff at SEA Limited to assist in fulfilling the terms of this Settlement Agreement.
6. Consultant's Noise Exposure Audit and Report: By December 31, 2012, the Consultant shall complete an audit of the occupational noise exposure levels throughout all areas of the Co-Pack Operation at EDC III, including 8-hour time-weighted average sound levels, and shall generate a report ("Consultant's Noise Exposure Audit and Report") that sets forth the noise exposure levels recorded during the audit. Based upon those levels, the Report shall set forth specific abatement recommendations for any levels which, pursuant OSHA's occupational noise exposure standard, 29 C.F.R. § 1910.95, require Respondent to take certain actions. Respondent will ensure that the Consultant is informed that noise exposure auditing must be performed so as to determine the noise levels to which all workers in all of the following categories are or may be exposed: Exel employees; non-Exel employees who work under Exel's direct supervision; and all contractual employees of Exel (hereafter cumulatively referred to as "Covered Employees").
7. Submission and Posting of Report: Within 7 days of receiving the Consultant's Noise Exposure Audit and Report, Respondent shall: provide a complete copy of the report to OSHA by overnight mail; and post a complete copy of the report at a location in the Co-Pack Operation of EDC III where it will be readily visible to all Covered Employees.
8. Exel's EDC III Noise Exposure Abatement Plan: Within 30 days of Respondent's Receipt of the Consultant's Noise Exposure Audit and Report, Respondent shall submit to OSHA a Noise Exposure Abatement Plan for EDC III ("EDC III Noise Abatement Plan") setting forth Respondent's site-specific proposal for complying with OSHA's occupational noise exposure standard, based on the results of the Consultant's Noise Exposure Audit and Report. In developing the EDC III Noise Abatement Plan, Respondent shall consider the abatement recommendations made by the Consultant in the Consultant's Noise Exposure Audit and Report and, to the extent that Respondent proposes any abatement measures that differ from the Consultant's recommendations, Respondent shall explain the reasons for not adopting the Consultant's recommendations. The EDC III Noise Abatement Plan shall further include the following:
    
   1. The EDC III Noise Abatement Plan shall include a discussion and evaluation of the feasibility of using engineering and administrative controls rather than personal protective equipment ("PPE") to reduce noise exposure. If Respondent determines that implementation of such controls is not feasible, the Plan shall explain the basis for that determination. Further, if Respondent determines that implementation of engineering controls is not feasible because Respondent lacks the authority to alter machinery or equipment, the Plan will explain in detail the basis for this determination.
   2. The EDC III Noise Abatement Plan shall include the proposed dates and deadlines for actions to be taken, as well as the names and job titles of all individuals responsible for taking any actions as part of the EDC III Noise Abatement Plan.
   3. The EDC III Noise Abatement Plan shall address how the proposed actions will ensure protection against noise exposure for all Covered Employees.
   4. The EDC III Noise Abatement Plan shall specifically state whether a Hearing Conservation Program will be implemented at EDC III (if so, the Hearing Conservation Program shall be embodied in a separate document, discussed below).
9. Hearing Conservation Program: Based upon the Consultant's Noise Exposure Audit and Report, including the Consultant's abatement recommendations, if a Hearing Conservation Program ("HCP") is required, then, at the same time that Respondent submits to OSHA its EDC III Noise Abatement Plan, Respondent shall also submit to OSHA a written, site specific HCP that has been developed in conjunction with the Noise Exposure Consultant. The HCP shall clearly identify all persons with any responsibilities related to the HCP, and all jobs and positions which will be included in the HCP.
10. Posting of Noise Plan and HCP: Respondent shall post the EDC III Noise Abatement Plan, and the written HCP (if a HCP is required), for sixty (60) days, at a location in the Co-Pack Operation ofEDC III where the documents will be readily visible to all employees.

11. Verification: At six months, and again at twelve months, following the submission of the EDC III Noise Abatement Plan to OSHA, Respondent shall submit abatement verification to OSHA confirming which specific steps in the EDC III Noise Abatement Plan have been implemented and when they were implemented, and any modifications made to the actions listed in the EDC III Noise Abatement Plan and the reasons for any such modifications. If, as of the time of the submission of the second such abatement verification, the EDC III Noise Abatement Plan has not been completely implemented, Respondent will continue to submit abatement verification every six months until all provisions of the EDC III Noise Abatement Plan have been fully implemented.

    CORPORATE-WIDE OCCUPATIONAL NOISE EXPOSURE ABATEMENT OBLIGATIONS

12. Exel Production Facilities: Exel, Inc., and its wholly-owned subsidiaries, own and/or operate numerous facilities throughout the United States. The corporate-wide abatement obligations for noise exposure, set forth below, are intended to apply to all facilities owned (wholly or in part) and/or operated (wholly or in part) by Exel, Inc., or any of its wholly-owned subsidiaries, located within Federal OSHA Jurisdiction, in which any production work is performed. The noise exposure abatement obligations are not intended to apply to any facilities used solely for warehousing purposes, unless Respondent, or any of its agents, have any reason to believe that any employees at such warehouse facilities may be exposed to any noise levels which, pursuant 29 C.F.R. § 1910.95, would require that Respondent take certain actions. All facilities included within the above scope are referred to herein as the "Exel Production Facilities." Further, the corporate-wide obligations for noise exposure auditing are only intended to apply to determining the noise levels to which Covered Employees (as defined above) are or may be exposed.
13. State OSHA Jurisdictions: Over and above the noise exposure abatement obligations set forth below at all Exel Production Facilities within Federal OSHA Jurisdiction, Respondent intends to implement the same noise exposure abatement measures at all facilities owned (wholly or in part) and/or operated (wholly or in part) by Exel, Inc., or any of its wholly owned subsidiaries, in which any production work is performed, and which are located in states that have assumed authority for the enforcement of OSHA Standards under a state plan pursuant to Section 18 of the Act ("State OSHA Jurisdictions"). OSHA will notify the state plan officials in these State OSHA Jurisdictions of the existence of this Agreement and will provide such officials with copies of this Agreement.
14. Production Facility List: Within 30 days from the entry of an Order Approving this Settlement Agreement, Respondent shall compile and submit to OSHA a list of all facilities that it has determined are "Exel Production Facilities" (i.e., fall within the scope of paragraph 12 above), including the address of each such facility. Every 120 days thereafter, for the duration of this Agreement, Respondent shall provide OSHA with an updated list of all actively operating "Exel Production Facilities."
15. Exel Policy Memorandum Regarding Occupational Noise Exposure: Within 30 days from the entry of an Order Approving this Settlement Agreement, Exel shall issue to the management employees at all Exel Production Facilities: (a) a copy of its Hearing Conservation Program; and (b) a copy of an Exel Hearing Conservation Memorandum setting forth the company's policy regarding Occupational Noise Exposure. This Memorandum shall explain the company's commitment to addressing occupational noise exposure and to complying with OSHA's occupational noise exposure standard, and shall clearly communicate the company's expectation that all Exel Production Facility management employees will similarly embrace a commitment to addressing Occupational Noise Exposure and complying with OSHA's occupational noise exposure standard. This Memorandum will also include a clear statement that for Exel Production Facilities, all actions taken to measure and to address occupational noise exposure must include all employees at the work site who are exposed to noise, including employees of an employer other than Exel.
16. Occupational Noise Exposure Audits: Within 90 days from the entry of an Order Approving this Settlement Agreement, occupational noise exposure auditing will be conducted at each Exel Production Facility by a person or persons qualified by education, experience and training to perform occupational noise exposure auditing. Each Exel Production Facility will ensure that the person or persons performing the audit are informed that noise exposure auditing must be performed so as to determine the noise levels to which all Covered Employees (as defined above) are or may be exposed. If the occupational noise exposure auditing at any Exel Production Facility reveals that employees are exposed to an 8-hour time-weighted average of 85 decibels or greater, Respondent shall immediately comply with the requirements of29 C.F.R. § 1910.95 paragraphs (i)(l) through (i)(5).
17. Exel Production Facility Compliance: Based upon the results of such audits, each Exel Production Facility shall, within 30 days from the completion of the audit, determine what steps must be taken at the facility to comply with 29 C.F.R. § 1910.95, including but not limited to:
     
    1. whether protection against the effects of noise exposure must be provided to any employees(§ 1910.95(a));
    2. whether feasible administrative or engineering controls must be utilized(§ 191 0.95(b ));
    3. whether a hearing conservation program must be administered for any employees (§ 1910.95(c));
    4. whether a monitoring program must be developed and implemented (§ 1910.95(d));
    5. whether an audiometric testing program must be established and maintained (§ · 1910.95(g)); and
    6. whether any employees must receive occupational noise exposure training (§ 1910.95(k)).
18. Exel Production Facility Compliance Plans and Quarterly Updates: For each Exel Production Facility that determines, based upon the results of any noise exposure auditing, that noise exposure levels at the facility require that actions be taken to comply with 29 C.F.R. § 1910.95, Respondent shall ensure that the facility develops a written noise abatement plan. Each such plan will include dates and deadlines for all actions to be taken to implement the plan, as well as the names and job titles of all individuals responsible for taking any actions as part of implementing the plan. Each such facility will submit its written compliance plan to Respondent's corporate safety director, and will provide quarterly updates to Respondent's corporate safety director until the plan is fully implemented. Each such plan shall include a discussion and evaluation of the feasibility of using engineering and administrative controls rather than PPE to reduce noise exposure, and shall prioritize the use of engineering and administrative controls rather than personal protective equipment ("PPE") to reduce noise exposures when such controls are feasible. If Respondent determines that implementation of such controls is not feasible, the Plan shall explain the basis for that determination. Further, if implementation of engineering controls is not feasible because Respondent lacks the authority to alter machinery or equipment, the plan will explain in detail the basis for this determination.

19. New Production Facilities: For any new facilities which begin to operate at some point after the date that this Agreement becomes a Final Order of the Commission, but before the end of the term of this Agreement, each such facility shall be evaluated to determine whether it falls within the scope of paragraph 12 above, and, if so, such facility will be treated as an "Exel Production Facility" and will proceed through the same process set forth in paragraphs 16, 1 7, and 18 above (i.e., noise exposure audits, determination as to steps necessary for compliance, written plan for compliance and monthly progress reports).

    EDC III RECORDKEEPING ABATEMENT OBLIGATIONS

20. Written Site-Specific Recordkeeping Policy: Respondent has developed and implemented a written recordkeeping policy that includes site-specific procedures for the reporting and recording of injuries and illnesses at EDC III, and which addresses and highlights the importance of injury and illness reporting and recording. The policy was developed in consultation with Respondent's Safety Consultant (identified in paragraph 5), and was approved in its final version by the Consultant. The site-specific procedures shall identify the particular job position or job positions responsible for each aspect of the reporting and recording process (including the individuals responsible for gathering and maintaining all injury and illness records), and shall also identify the job position with ultimate authority for ensuring that these policies and procedures are implemented and maintained at EDC III. A copy of this document shall be provided to OSHA. A copy of this document shall also be posted at the Co-Pack Operation of EDC III at a location where it will be readily visible to employees.
21. Employees to Receive OSHA Recordkeeping Training: Within 60 days from the entry of an Order Approving this Settlement Agreement, Exel shall provide OSHA recordkeeping training (which shall be developed in consultation with Respondent's Safety Consultant) to Covered Employees (as defined above) who fall into any of the following categories: (a) All EDC III management employees; (b) all employees with any supervisory authority who work in the Co-Pack Operation at EDC III or who have any job duties related to the Co-Pack Operation; and (c) all non-management and non-supervisory employees who have any responsibilities related to reporting and/or recording injuries and illnesses at EDC III. Each such individual, in addition to receiving the training described below, will be provided with a copy of the written, site-specific recordkeeping policy discussed in paragraph 20 above.
22. Substance of OSHA Recordkeeping Training: In developing a comprehensive and appropriate OSHA recordkeeping training program for EDC III, Respondent's Safety Consultant shall review, and shall consider for inclusion in the training program, the following:
     
    1. The "Comprehensive Presentation" PowerPoint Presentation available for downloading at http://www.osha.gov/recordkeeping/RKpresentations.html;
    2. OSHA 3169 Publication, including the section of that publication entitled "What's so important about recordkeeping?";
    3. The OSHA slide presentation entitled "Brief Tutorial on Completing the Recordkeeping Forms," available on-line (and down-loadable) at http://www.osha.gov/recordkeeping/tutorial.html; and
    4. 29 C.F.R. § 1904.
23. Certification of OSHA Recordkeeping Training: At the completion of the OSHA recordkeeping training described in paragraph 22 above for all employees identified in paragraph 21 above, Respondent shall submit to OSHA written and signed certification that such training has been completed. This certification shall include: identification of who provided the training and that person's or company's qualifications; a summary of the components of the training; the names of all employees who participated in the training; and the dates of such training. This certification shall be signed by Respondent's Corporate Safety Director who shall personally ensure that the training described above has been provided to each employee listed in the certification document.

24. OSHA Recordkeeping Training for New Management/Supervisory Employees: Any new employees hired in the future who fall within the scope of paragraph 21 above shall receive the same OSHA recordkeeping training described in paragraph 22 above within 15 days after starting to work at EDC III.

    CORPORATE-WIDE RECORD KEEPING ABATEMENT OBLIGATIONS

25. Recordkeeping Obligations at All Exel Facilities: The corporate-wide abatement obligations for recordkeeping, set forth below, are intended to apply to all facilities owned (wholly or in part) and/or operated (wholly or in part) by Exel, Inc., or any of its wholly-owned subsidiaries, located within Federal OSHA Jurisdiction, regardless of the nature of the work performed therein.
26. State OSHA Jurisdictions: Over and above the recordkeeping abatement obligations set forth below at all Exel facilities within Federal OSHA Jurisdiction, Respondent intends to implement the same recordkeeping abatement measures at all facilities owned (wholly or in part) and/or operated (wholly or in part) by Exel, Inc., or any of its wholly-owned subsidiaries, which are located in State OSHA Jurisdictions. OSHA will notify the state plan officials in these State OSHA Jurisdictions of the existence of this Agreement and will provide such officials with copies of this Agreement.
27. List of All Exel Facilities: Within 30 days from the entry of an Order Approving this Settlement Agreement, Respondent shall submit to OSHA a list of all actively operating facilities, located within Federal OSHA Jurisdiction, which fall within the scope of paragraph 25 above. Every 120 days thereafter, for the duration of this Agreement, Respondent shall provide OSHA with an updated list of all actively operating Exel Facilities.
28. Exel Policy Memorandum Regarding Recordkeeping: Within 60 days from the entry of an Order Approving this Settlement Agreement, Exel shall issue to the management employees at all Exel facilities: (a) a copy of its "OSHA Recordable Procedure"; and (b) a copy of an Exel Recordkeeping Memorandum setting forth the company's policy regarding Injury and Illness Recordkeeping. The Exel Recordkeeping Memorandum shall explain the company's commitment to complying with OSHA's recordkeeping requirements, and shall clearly communicate the company's expectation that all Exel facility management employees will similarly embrace a commitment to complying with OSHA's recordkeeping requirements This Memorandum will also include a clear statement that for any facility operated by Exel, recordkeeping applies to and must include both Exel employees and employees of any other subcontractor of Exel working at the facility.
29. Designation of Ultimate Responsibility for Recordkeeping: For each Exel facility within OSHA Jurisdiction, Exel shall designate: (a) a permanent job position with ultimate authority for overseeing the recordkeeping process and ensuring that the recordkeeping is accurate and complete; and (b) a permanent job position with ultimate responsibility for reviewing all information and documentation related to each employee injury or illness and making case-by-case determinations as to whether the injury or illness will be recorded on the OSHA 300 Log. Further, Exel shall document this information in writing and shall ensure that this information is clearly communicated in writing to the individuals holding those particular job titles.
30. Recordkeeping Training: Within 180 days from the entry of an Order Approving this Settlement Agreement, all persons in job positions designated as having any of the responsibilities discussed in paragraph 29 above shall be required to undergo recordkeeping training. Each individual undergoing such training shall, at a minimum:
     
    1. View the "Comprehensive Presentation" PowerPoint Presentation available for downloading at http://www.osha.gov/recordkeeping/RKpresentations.html;
    2. View the OSHA slide presentation entitled "Brief Tutorial on Completing the Recordkeeping Forms," available on-line (and down-loadable) at http://www.osha.gov/recordkeeping/tutorial.html;
    3. Receive copies of: (i) OSHA 3169 Publication"; and (ii) 29 C.F .R. § 1904; and
    4. Receive training on the written, site-specific recordkeeping program for the facility.

    CORPORATE-WIDE CHANGES TO INCENTIVE PROGRAMS

31. Incentive Programs: The Parties agree that a positive incentive program can encourage workers and management employees to report and/or record injuries, illnesses, near misses, or hazards, and can encourage worker and management employees involvement in the safety and health management system. However, an incentive program that focuses on injury and illness numbers can have the effect of discouraging workers from reporting injuries or illnesses, and/or discouraging management employees from recording injuries or illnesses. In this light, Respondent agrees to the following.
32. Elimination of Incentives Based on Reporting/Recording Injuries: Effective January 1, 2013, Exel shall eliminate any components in any Exel employee or management incentive or bonus programs which provide any awards or benefits, or any reductions to awards or benefits, based upon the number of injuries or illnesses at a facility, and/or based upon attaining a certain injury and illness incidence rate over a set period of time. In particular, Respondent shall eliminate from the "EDC III - Performance Management Process (PMP) CoPack Incentive Plan" the component entitled "Facility Safety Record" in which incentive payments are reduced by 20% "if there is more than one recordable injury in the area during the incentive period," and shall eliminate from the "2011 North American Exel Management Incentive Plan (MIP)" the components of all associated Individual Key Objectives ("IKOs") which offer an increase in bonus payments based upon the number of "OSHA Recordables" (i.e., the number of injuries or illnesses which are recorded on the OSHA Logs). On or before January 31, 2013, Respondent shall submit written and signed verification that these provisions have been eliminated.

33. Retaining Compensation and Benefits Expert to Evaluate Safety Incentive Programs: Within 60 days from the entry of an Order Approving this Settlement Agreement, Respondent shall retain a Compensation and Benefits Expert who is qualified by education and experience in incorporating safety and health in incentive programs to assist the company in evaluating the inclusion of alternate safety-based provisions in its Incentive and Bonus Programs. The consultant will provide Respondent with options for including in its incentive and bonus programs alternative methods of objectively measuring employee performance in the category of safety and health that do not rely upon the number of injuries or illnesses at a facility, and/or attaining a certain injury and illness incidence rate over a set period of time.

    OTHER SETTLEMENT TERMS AND OBLIGATIONS

34. Citations of Section 29 C.P.R. § 1910.95: Complainant agrees that for a period of two years from the entry of an Order Approving this Settlement Agreement, OSHA shall not cite Respondent for any violation of the general industry Occupational Noise Exposure standard (29 C.P.R.§ 1910.95) where the potential violation is based upon occupational noise levels that were first identified as a result of the noise auditing required by this Settlement Agreement. This prohibition does not apply to situations in which Exel or any of its agents, at the time of the entry of an Order Approving this Settlement Agreement, already knew, or had reason to know with the exercise of reasonable diligence, about the existence of occupational noise levels requiring that some action be taken pursuant to 29 C.F.R. § 1910.95. This prohibition will also not apply if OSHA determines that the Company has not complied with, or is not engaging in a good faith effort to comply with, any of the occupational noise exposure abatement obligations of this Settlement Agreement.
35. Citations of29 C.F.R. Part 1904: Complainant agrees that for a period of two years from the entry of an Order Approving this Settlement Agreement, OSHA shall not cite Respondent for any violation of29 C.F.R. §§ 1904.4(a) or 1904.32(b)(l) which involves a failure to record any injuries or illnesses of any non-Exel employees. This prohibition will also not apply if OSHA determines that the Company has not complied with, or is not engaging in a good faith effort to comply with, any of the recordkeeping provisions of this Settlement Agreement.
36. Inspections During the Term of this Agreement: During the term of this Settlement Agreement, Respondent will permit OSHA entry into and inspection of any Exel facility to determine progress and compliance with this Agreement. The scope of the monitoring inspection shall be limited to the verification of compliance with this Agreement. Respondent agrees to require no warrants for entry by OSHA, and to require no subpoenas for access to documents, related to compliance with this Agreement. If during the course of any inspection conducted during the term of this Agreement, Complainant determines that a condition covered by the terms of this Agreement could result in a citation, the Complainant will determine whether the condition is covered as part of Excel's abatement obligations pursuant to this Agreement. If the Complainant determines that such condition is being addressed in good faith under the terms of this Agreement, no citation shall be issued. Further, Complainant agrees that, assuming implementation of the Settlement Agreement by Respondent, in good faith, OSHA shall not conduct a programmed inspection of conditions covered by this Agreement at any Exel facility during the term of the Agreement. OSHA retains the right to conduct all other types of inspections permitted under the Act and nothing in this Agreement will be construed to alter or affect Respondent's rights or obligations under the Act with respect to such inspections.
37. Dispute Resolution Regarding Compliance with this Agreement: Complainant agrees that if, during the term of this Settlement Agreement, OSHA reaches a preliminary determination that Respondent may not be in compliance with this Agreement, OSHA shall first notify Respondent in writing by sending such notification to:
     

    Robert C. Whipple
    Associate General Counsel
    Exel, Inc.
    570 Polaris Parkway
    Westerville, Ohio 43082

    Respondent will have 15 calendar days from receipt of OSHA's notification to provide a written response to the Director of Enforcement Programs, U.S. Department of Labor, Occupational Safety and Healthy Administration, 200 Constitution Avenue, NW, Washington, DC 20210. Within 30 calendar days after OSHA's receipt of Respondent's written response, the Parties will enter into good faith discussions in an attempt to resolve the issue. If the Parties are unable to resolve the issue within 15 calendar days of entering into such discussions, Complainant shall determine the appropriate course of action.
38. No Other OSHA Enforcement Limitations: Except as otherwise provided, nothing in this Agreement shall limit OSHA's right to use, as appropriate, enforcement methods provided under the Act.
39. Sections 1 O(b) and 11(b) Enforcement: The Parties understand and agree that a failure to perform in good faith any of the abatement obligations required by this Settlement Agreement may be cited as failure to abate under Section 10(b) of the Act, 29 U.S.C. § 659(b), and may be subject to an enforcement action brought by Complainant pursuant to Section ll(b) of the Act, 29 U.S.C. § 660(b), to the same extent as if these abatement obligations had been set forth from the outset in the Citation and Notification of Penalty issued in this matter. Respondent agrees that it will not oppose the entry, pursuant to Section 11(b) of the Act, of an order of enforcement by the United States Court of Appeals to which Complainant presents this Agreement and supporting documents.
40. Document Submission to OSHA: All documents and information required under this Agreement to be provided or submitted or furnished to OSHA shall be sent to:
     

    Directorate of Enforcement Programs
    Occupational Safety and Health Administration
    U.S. Department of Labor
    200 Constitution A venue, NW
    Washington, D.C. 20210

41. Withdrawal of Notice of Contest: Respondent withdraws its Notice of Contest to the Citation and Notification of Proposed Penalty as amended by this Settlement Agreement.
42. Posting of Settlement Agreement at EDC III: In accordance with the requirements of29 C.F.R. §§ 2200.100(c) and 2200.7, Respondent will post a copy of this Settlement Agreement at _________________ (location) on -------(date) so as to provide notice to all affected employees at the worksite.
43. Posting of Settlement Agreement at Other Facilities: This settlement agreement shall be provided to all Exel facilities within Federal OSHA Jurisdiction and shall be posted at each Exel facility for a minimum of 90 days, at a work site location where it will be readily visible to all employees.
44. Compliance with the Act: Respondent agrees to comply with the applicable provisions of the Act, and the applicable health and safety standards promulgated pursuant to the Act.
45. Amendment of Citation and Notification of Penalty: The Parties agree that the Citation and Notification of Penalty is amended to include the provisions of this Settlement Agreement. The Citation and Notification of Penalty as amended by this Settlement Agreement, and this Settlement Agreement, shall become final Orders of the Commission, and the Parties consent to the entry of the attached Consent Order Approving Settlement.
46. Non-Admission Provision: None of the foregoing agreements, stipulations, or actions taken by Respondent shall be deemed an admission of any of the allegations contained in the Citation and Notification of Penalty herein. The agreements, statements, stipulations, findings and actions herein are made solely for the purpose of settling this matter economically and amicably without litigation and shall not be used for any purpose except for proceedings and matters arising under the Act.
47. EAJA: Each party agrees to bear its own attorney's fees, costs, and other expenses incurred by such party in connection with any stage of the above-referenced proceeding including, but not limited to, attorney's fees and costs which may be available under the Equal Access to Justice Act, as amended.
48. Term of Agreement: This Agreement shall become effective on the date that it becomes a Final Order of the Commission, and shall remain in effect for a term of two years from that effective date. Before the termination date of this Agreement, either Party may give notice to the other that it wishes to extend the Agreement for another term. The Parties agree that if one Party gives such notice in writing, the Parties shall enter into good faith discussions to address the continuation of the Agreement.

notice to the other that it wishes to extend the Agreement for another term. The Parties agree that if one Party gives such notice in writing, the Parties shall enter into good faith discussions to address the continuation of the Agreement.