________________________________________
AMERICAN IRON AND STEEL INSTITUTE )
AND BETHLEHEM STEEL CORPORATION, )
ET AL. )
Petitioners, )
)
v. ) Case No. 79-1054 and
) Consolidated Cases
OCCUPATIONAL SAFETY AND HEALTH ) Nos. 79-1078, 79-1111
ADMINISTRATION AND UNITED STATES ) & 82-1135
DEPARTMENT OF LABOR, ET AL., )
)
Respondents, )
)
UNITED STEELWORKERS OF AMERICA, )
AFL-CIO-CLC, BRASS AND BRONZE )
INGOT MANUFACTURERS, INC., )
ET AL. )
)
Intervenors. )
________________________________________)
1. The parties to this Settlement Agreement are petitioner, the Institute of Scrap Recycling Industries ("ISRI"), the Brass and Bronze Ingot Manufacturers, Inc. ("BBIM"), intervenor, and their member brass and bronze ingot manufacturing companies, on the one side, and the Occupational Safety and Health Administration ("OSHA"), United States Department of Labor, respondent, on the other.
2. WHEREAS, the ingot industry members of ISRI and BBIM currently collectively produce at least 75 percent of the brass and bronze ingots produced in the United States; and
3. WHEREAS, on July 11, 1989, OSHA promulgated a final rule on Occupational Exposure to Lead, 29 CFR 1910.1025, which included a determination that achieving a permissible exposure limit ("PEL") of 50 ug/m(3) by means of engineering and work practice controls is technologically and economically feasible for the brass and bronze ingot industry as a whole, 54 FR 29142, 29157, 29159, 29162; and
4. WHEREAS, before this Court BBIM and ISRI challenged OSHA's feasibility determinations; and
5. WHEREAS, this Court reviewed the record and affirmed OSHA's findings that the PEL was technologically feasible for the brass and bronze ingot industry to achieve by means of engineering and work practice controls,
American Iron and Steel Institute (AISI) v. OSHA, 939 F.2d 975, 1010 (D.C. Cir. 1991); and
6. WHEREAS, this Court determined that OSHA had not shown that achieving the PEL by means of engineering and work practice controls was economically feasible for the brass and bronze ingot industry, AISI, 939 F.2d at 1009; and
7. WHEREAS, this Court vacated OSHA's findings on economic feasibility for the brass and bronze ingot industry and remanded that portion of the record to OSHA for reconsideration, AISI, 939 F.2d at 1010; and
8. WHEREAS, this Court has continued to stay 29 CFR 1910.1025(e)(1) with respect to the brass and bronze ingot industry, AISI, 939 F.2d at 1010; and
9. WHEREAS, BBIM and ISRI continue to believe (and by entering this Settlement Agreement do not concede otherwise) that OSHA has not met, by substantial evidence in the record as a whole, its burden of proving the economic feasibility of achieving the PEL by means of engineering and work practice controls; and
10. WHEREAS, the industry's economic and technological ability to achieve a PEL of 50 ug/m(3) by some combination of respirators, engineering controls and work practices is not in dispute; and,
11. WHEREAS, upon reconsideration of the existing record, OSHA recognizes that:
A. Most employers in the brass and bronze ingot manufacturing industry cannot achieve the PEL without the supplemental use of respirators; and
B. OSHA cannot demonstrate that achieving an 8-hour time-weighted average ("TWA") below 75 ug/m(3) is economically feasible for the brass and bronze ingot manufacturing industry.
12. NOW, THEREFORE, the parties to this Settlement Agreement do hereby agree to the following terms, which OSHA shall incorporate into a compliance directive applicable to existing companies in the industry that does not add any other obligations beyond those imposed by this agreement:
A. An 8-hour TWA of 75 ug/m(3) is an economically feasible air level that can be achieved in the industry as a whole.
B. Employers are required to reduce air lead levels to an 8-hour TWA of 75 ug/m(3).
C. Because of economic feasibility constraints on the brass and bronze ingot manufacturing industry, the industry will have six years from the date this court lifts the existing stay to reduce air lead levels to an 8-hour TWA of 75 ug/m(3).
D. During the period when engineering and work practice controls are being implemented and, thereafter, where an employer cannot achieve the PEL by engineering and work practice controls, supplemental respirator use is authorized and required to achieve the PEL.
E. As soon as practicable, and in any event within one year after this court lifts the existing stay of paragraph (e)(1) for the industry, employers whose air lead levels are above an 8-hour TWA of 75 ug/m(3) shall take the following steps to reduce air lead levels to or below the 8-hour TWA of 75 ug/m(3) where doing so is no-cost or low cost: conduct an industrial hygiene evaluation; improve work practices (written, communicated to employees, and followed), housekeeping, and preventive maintenance of ventilation and production systems; and control cross contamination.
F. During the period until engineering and work practice controls achieve a TWA of 75 ug/m(3), ISRI and BBIM jointly or separately shall provide the Office of Health Standards Programs in OSHA with the air lead and blood lead monitoring data that is required to be collected under the lead standard for each of their ingot industry member companies. The submission shall be made annually and company by company. The submission shall be without member company identification and shall not be distributed to OSHA enforcement personnel unless OSHA determines that the data indicate a violation of the lead standard, in which case the company shall be identified. It is understood that any such OSHA determination does not relieve OSHA of its obligation to prove the elements of a violation in such judicial proceedings as may be initiated under the OSH Act.
G. OSHA recognizes that it probably is not economically feasible to achieve an 8-hour TWA of 75 ug/m(3) by means of engineering and work practice controls in the briquetting and baghouse maintenance operations in the industry. OSHA therefore would have the burden of proving the economic feasibility of materially reducing existing air lead levels above 75 ug/m(3) by engineering and work practice controls in any enforcement proceeding under paragraph (e)(1) of the lead standard concerning these operations.
13. Except as set forth in paragraph 12(G) above, this Settlement Agreement does not in any respect expand or restrict the rights that an employer might otherwise have had in defending an OSHA enforcement citation had this Court affirmed OSHA's findings that it is economically feasible for the brass and bronze ingot industry to achieve an 8-hour TWA of 75 ug/m(3) by means of engineering and work practice controls.
14. This Settlement Agreement is not intended to bind OSHA in any future rulemaking the Agency might undertake concerning occupational exposure to lead.
15. OSHA agrees to add a footnote to Table I of the lead standard to state that compliance for the brass and bronze ingot manufacturing industry with paragraph (e)(1) of the lead standard is to be determined in accordance with the compliance directive referred to in paragraph 12 of this settlement agreement.
16. In addition, in light of this settlement agreement, BBIM and ISRI agree that, following their signatures to this agreement, within 10 working days of the issuance of the compliance directive referred to in paragraph 12 of this agreement and the publication in the Federal Register of the footnote to Table I of the lead standard referred to in paragraph 15 of this agreement, they will file with the United States Court of Appeals for the D.C. Circuit a motion to dismiss their petitions with prejudice and a joint motion with OSHA to vacate the remaining stay of paragraph (e)(1) of the lead standard with respect to the brass and bronze ingot manufacturing industry.
B. BBIM and ISRI and their ingot industry member companies also agree that they will not file a judicial challenge under Section 6(f) of the OSH Act or the APA to OSHA's finding that an 8-hour TWA of 75 ug/m(3) is economically and technologically feasible for the brass and bronze ingot industry and further that they will not provide any encouragement or aid to any other company or entity that may wish to challenge those findings. Their rights under paragraph 13 of this agreement remain unaffected by the preceding sentence.
C. Each party agrees to bear its own attorneys' fees, costs and other expenses that have been incurred in connection with these proceedings.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day of February, 1995.
__________________________________
John F. Martonik, Acting Director
Health Standards Programs
Occupational Safety and Health
Administration
United States Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210
__________________________________
Mark P. Schumann
President of Intervenor,
Brass and Bronze Ingot
Manufacturers, Inc.
22500 Alexander Road
Bedford, Ohio 44146
Tel. (216) 439-2300
__________________________________
Herschel Cutler
Executive Director of Petitioner,
Institute of Scrap Recycling
Industries, Inc.
1325 G Street, N.W., Suite 1000
Washington, D.C. 20005
Tel. (202) 662-8506