UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

STIPULATION AND AGREEMENT

I

Scope and Intent of Agreement

1. Complainant, Seth D. Harris, Acting Secretary of Labor, United States Department of Labor, through the Occupational Safety and Health Administration ("OSHA"), and Respondent, ConAgra Foods, Inc. d/b/a Lamb Weston, Inc. ("ConAgra"), agree to a full and complete settlement of the remaining issues arising from the contested citations, proposed penalties, and abatement dates referenced by OST-IA Inspection Number 313354 730 and Occupational Safety and Health Review Commission ("OSHRC") Docket Number 10-2092.
    
2. The parties agree that the terms of this Agreement apply to low pressure ammonia receivers ("LPRs") located at the following ConAgra facilities: Batesville, Arkansas; Trenton, Missouri; Troy, Ohio; American Falls, Idaho~ and Twin Falls. 1daho. (See Appendix A for complete addresses).
    

II.

Amendment of the Citation

The parties agree to the following with respect to the citations issued by OSHA in this matter:

1. Serious Citation I, Item 2(a) is deleted.
    
2. Serious Citation 1, Item 2(b) remains, with an amended penalty of$1,000.
    
3. The total penalty tbr this matter as amended by this Agreement is $1,000.
    

The parties further agree that the citation described in paragraph B, above, is amended to include the full terms of this Agreement, including the abatement actions, dates, and time frames stated herein.

III.

Withdrawal of Notice of Contest and Entry of Final Order

In settlement of these disputed issues, ConAgra hereby withdraws its notice of contest to the citation, proposed penalties and abatement dates, as amended and set forth herein, and the parties agree to the entry of a final enforceable order of the OSHRC consistent with the terms of this Agreement.

In agreeing to the terms of this Agreement, OSHA and ConAgra agree that the actions taken by ConAgra with respect to the LPRs covered by this Agreement constitute full and complete abatement consistent with the requirements of 29 C.F.R. §§ 1910.119(d}(3)(ii) and (iii). as applicable. OSHA and ConAgra also agree that the actions taken with respect to the LPRs covered by this Agreement constitute sate work practices in accordance with 29 C.F.R. § 1910.1 19(f)(4).

IV.

Payment of Penalties

ConAgra agrees to pay the sum set forth in Paragraph II, C, above within 30 days after this Agreement becomes a final order of the OSHRC. ConAgra shall tender payment to the U.S. Department of Labor, OSHA. The check shall be made payable to "U.S. Department of Labor- OSHA" and sent to:

David Kearns, Area Director
Boise Area Office
1150 North Curtis Road, Suite 20 I
Boise, Idaho 83 706

V.

Administrative Controls

ConAgra shall implement the following administrative controls with respect to LPRs at all facilities noted in Appendix A of this Agreement:

1. Within 120 days of the execution of this Agreement by both parties (hereinafter "execution of the Agreement"), ConAgra shall conduct additional training on the following topic areas for all employees who work in the vicinity of the LPRs covered by this Agreement:
   1. The hazards of ammonia;
   2. Site specific protective measures taken by Con.Agra to protect employees from the hazards of ammonia; and
       
   3. Site specific Emergency Response and evacuation procedures.
       
2. Within 120 days of the execution of the Agreement, Con.Agra shall revitw and update where necessary all piping and instrumentation diagrams ("P&JDs") as they relate to LPRs covered by the Agreement. These updates shall include all equipment downstream of the applicable evaporator. which includes the LPRs as well as any pumps, pipes. and valves (both relief and emergency isolation) attached to the LPRs.
    
3. From the date of the last applicable mechanical integrity assessment, ConAgra shall conduct mechanical integrity assessments, equivalent to the five year Independent Inspection provisions of liAR Bulletin 110, of the LPRs covered by this agreement at least as often as every three years. The mechanical integrity assessments shall include all equipment downstream of the applicable evaporator, which includes the LPRs as well as any pumps, pipes, and valves (both relief and emergency isolation) attached to the LPRs.
    
4. ConAgra shall continue to ensure that access to any enclosed areas with respect to the LPRs covered by this agreement are limited to qualified refrigeration technicians and/or qualified maintenance personnel. Any personnel entering these areas shall be equipped with and wear, if necessary, personal protective equipment that ConAgra has deemed appropriate pursuant to the results of any workplace hazard assessments.
    

VI.

Site-Specific Interim and Final Controls

ConAgra shall implement the following worksite-specific controls at the tacilities noted in Section I of this Agreement as follows:

Batesville, Arkansas

ConAgra shall implement the following engineering controls on Batesville LPR #I, a horizontal accumulator manufactured by Frick in 1981 :

1. ConAgra stipulates that it has decommissioned the LPR at its Batesville, Arkansas facility. Within 45 days of the execution of the Agreement, ConAgra shall notify OSHA of the steps taken to ensure that this LPR was decommissioned and/or will not be unintentionally restarted.
    
2. If, in the future, ConAgra decides to return this LPR to service, it shall conduct all appropriate analyses, including, but not limited to, a pre-start up safety review, to determine if the hazards associated with this LPR have been addressed in accordance with applicable OSHA requirements and will notify the local OSHA Area Director of the intention to restart the LPR at least 30 days before restart is initiated.
    

Trenton, Missouri

ConAgra shall implement the following engineering controls on Trenton LPR # I, a vertical Control Pressure Receiver manufactured by RVS in 1988:

1. Within 180 days ofthe execution of the Agreement, ConAgra shall install controllers on the DX units to reduce potential for overfeed with high pressure liquid.
    
2. Within 90 days of the execution ofthe Agreement, ConAgra shall reset the hand expansion valves for the liquid overfeed units of the freezers and adjust them to the lowest practicable and controllable overfeed rates to reduce cycling on the pumper drum system.
    
3. Within I year of the execution of the Agreement, ConAgra shall add two additional non-destruct testing points over the pumper drum during mechanical integrity audits. These non-destruct testing points will be added in areas within the working liquid level region of the drum and physically separated by an equal horizontal distance from the vertical center line of the drum. Existing non-destruct testing points will be maintained at their current locations.
    
4. Within 90 days of the execution of this Agreement, ConAgra shall replace the doors in the enclosure area so that they swing in an outward direction and, in addition, will replace the handles of both doors with panic bars.
    
5. Within one year of the execution of this Agreement, ConAgra shall remove and replace the cun-ent insulation on the LPR.
    

Troy, Ohio

ConAgra shall implement the following engineering controls on Troy LPR # 1, a horizontal accumuJator manufactured by Frick in 1993:

1. Within 180 days of the execution of this Agreement, ConAgra shall reposition the exhaust duct horizontally at ceiling level.
    
2. Within 270 days of the execution of this Agreement, ConAgra shall install audio and visual a1anns and an auto-on switch (for both normal and emergency ventilation) outside of the existing doors leading from the enclosed space.
    
3. Within 90 days of the execution of this Agreement, ConAgra shall replace the handles of the doors leading to the enclosure with panic bars, and ensure that the doors swing outward from the enclosure.
    
4. Within one year of the execution of this Agreement, ConAgra shall construct two sets of stairs to the bottom of the enclosed space tor employee access when performing maintenance on the LPR.
    
5. Within one year of the execution of this Agreement, ConAgra shall interlock the water sump in the enclosed space to the ammonia detection system.
    

American Falls, Idaho

1. Engineering Controls ConAgra shall implement the following engineering controls on LPRs at American Falls as follows:
    
   1. American Falls LPR # 1. manufactured by the Morfab Company. Inc. in 1986
      
      Within 18 months from the execution of this Agreement, ConAgra shall wnstruct an enclosun: that includes one door that opens oul\vard and is equipped with panic bars. ConAgra shall also install audio and visual alarms outside of the space housing the LPR, and an auto-on switch for the ventilation (both nonnal and emergency ventilation). ConAgra will ensure that the enclosure is maintained at negative pressure.
       
   2. American Falls LPR # 2. a low temperature pump receiver. manufactured by Morfab Company. Inc., in 2000
      
      ConAgra agrees that within 180 days of the execution ofthis Agreement, it shall ensure that the doors accessing the LPR open outward and are equipped with panic bars. In addition, ConAgra shall, within 180 days ofthe execution of this Agreement, install audio and visual alarms outside of the space housing the LPR, and an auto-on switch for the ventilation (both nonnal and emergency ventilation).
       
   3. American Falls LPR # 3, a low temperature pump receiver. manufactured by Morfab Company, Inc .. in 1995
      
      Within 18 months of the execution of this Agreement, ConAgra shall construct an enclosure consisting of one door that opens outward and is equipped with panic bars. ConAgra shall also install audio and visual alarms outside of the space housing the LPR, along with an auto-on switch for the ventilation (both normal and emergency). ConAgra will ensure that the enclosure is maintained at negative pressure.
       
   4. American Falls LPR # 5, a low temperature pump receiver. manufactured by Morfab Company, Inc .. in 2000
      
      Within 18 months of the execution of this Agreement, ConAgra shall construct an enclosure that includes one door that opens outward and is equipped with panic bars. ConAgra shall nlso install audio and visual alarms outside of the space housing the LPR, along with an auto-on switch for the ventilation (both normal and emergency). ConAgra will ensure that the enclosure is maintained at negative pressure.
       
2. Interim Controls
   
   Prior to the completion of the engineering controls described above, ConAgra shall implement the following interim measures upon execution of this Agreement;
    
   1. Maintain ventilation as currently configured with respect to each affected LPR.
       
   2. Maintain ammonia detectors and alarm settings at 25 ppm.
       
   3. Limit direct access with the LPRs to qualified refrigeration technicians and/or qualified maintenance personnel. Any such personnel shall wear or be equipped with personal protective equipment that ConAgra has deemed appropriate to address hazards to which employees may be exposed.
       
   4. Conduct emergency action plan ("EAP") refresher training once per year for all personnel, including but not limited to production, sanitation, and maintenance personnel, working in vicinity of the LPRs covered by the Agreement. ConAgra shall also conduct EAP drills once a year for each shift.
       

Twin Falls, Idaho

1. Engineering Controls ConAgra shall implement the following engineering controls on LPRs at Twin Falls covered by this Agreement:
    
   1. Twin Falls Line-1 LPR. Twin Falls Line-2 LPR. Curing Room-LPR, Cold Storage-LPR. Line-2 LPR. Line-3 LPR
      
      ConAgra shall, within 180 days of the execution of this Agreement, shall ensure that the doors accessing these LPRs open outward and are equipped with panic bars. In addition, ConAgra shall, within 180 days of the execution of this Agreement, install audio and visual alam1s outside of the spaces housing the LPRs, along with auto-on switches for the ventilation (both normal and emergency).
       
   2. The C&F LPR
       
      1. Within 12 months of the execution ofthis Agreement, ConAgra shall select one of the following controls to address hazards associated with the C&F LPR and provide OSHA with notification of this selection:
          
         1. Decommission the LPR;
             
         2. Relocate the LPR to a location outside of the building; or
             
         3. Construct a full enclosure around the LPR. This enclosure shall include one door that opens outward and is equipped with panic bars, as well as audio and visual alanns outside of the space housing the LPR, along with an auto~on switch for the ventilation (both normal and emergency ventilation). ConAgra will ensure that the enclosure is maintained at negative pressure.
             
      2. ConAgrashall complete all work associated with the C&F LPR within 18 months of the execution ofthis Agreement.
          
2. Interim Controls Prior to the completion of the selected engineering control, ConAgra shall implement the following interim measures upon execution of this Agreement:
    
   1. Maintain ventilation as currently configured with respect to each affected LPR.
       
   2. Maintain ammonia detectors and alarm settings at 25 ppm.
       
   3. Conduct EAP refresher training once per year for all personnel, including but not limited to production, sanitation, and maintenance persormel, working in vicinity of the LPRs covered by the agreement ConAgra shall also conduct EAP drills once a year for each shift.
       
   4. Ensure that the C&F LPR. as well as any associated piping and pumps, is physically protected from being struck by any equipment, such as powered industrial trucks, that could rupture the ammonia containment.
       
   5. Conduct oil draining operations during periods of non~production in the area surrounding the LPR.
       
   6. Within three (3) months ofthe execution ofthis Agreement:
      1. Determine the integrity ofC&F LPR and its components;
          
      2. Inspect insulation to determine if the vapor barrier or insulation on the C&F LPR piping has been compromised;
          
      3. Monitor integrity of the ammonia pumps; and
          
      4. Initiate ammonia leak checks of equipment as part of daily inspections.
          

VII.

Decommissioning of LPRs

ConAgra reserves the right to decommission any of the LPRs subject to this Agreement in lieu of implementing the engineering controls set forth in this Agreement. Should ConAgra choose to decommission any of the LPRs, it must notify OSHA of such action and take the steps set tbrth in Section VI, Paragraph I ol'this Agreement related to the LPR located in Batesville, Arkansas. If, in the future, ConAgra elects to return the applicable LPR to service, ConAgra shall take the steps set forth in Section VI, Paragraph 2 of this Agreement related to the LPR located in Batesville, Arkansas, as well as implement any applicable interim and engineering controls contained in this Agreement for that facility within the specified time frames.

VIII.

Monitoring and Reporting

For as long as this Agreement is effective, ConAgra shall pennit OSHA to enter into and conduct monitoring inspections at the facilities covered by this Agreement to verify compliance with the Agreement. ConAgra shall not require warrants for entry by OSHA, and shall not require subpoenas for access to documents, witnesses, or other information related to compliance with this Agreement. The scope of the OSHA monitoring inspections shall be limited to the verification of compliance with this Agreement, unless other non-compliant conditions are observed in the plain view of an OSHA compliance officer during the verification visit.

Until the termination of the Agreement, ConAgra shall provide to OSHA written reports every six months following the execution of the Agreement detailing the results of the internal audits of the LPRs in each facility covered by this Agreement measuring the progress of all abatement measures contained in the Agreement, as well as the continuing maintenance of the identified interim controls. The contents of these reports shall be verified by corporate-level ConAgra safety and health officials through either direct participation in the audits or through any other appropriate measures. These reports shall be submitted to the OSHA point of contact as provided by Section XIV of this Agreement.

IX.

Abatement Certification and Documentation

1. Within 30 days after final implementation of all controls contained in this Agreement, ConAgra must certify abatement. ConAgra must submit to OSHA abatement documents within 30 days of final implementation demonstrating that abatement is complete. Such verification shall include documentation demonstrating that ConAgra has fully implemented the administrative and engineering controls in Sections V and Vr of this Agreement or has decommissioned LPRs in accordance with Section VII.
    
2. The certification and document submission wi ll be mailed to:
    
   Thomas Galassi, Director
   Directorate of Enforcement Programs
   Occupational Safety and Health Administration
   U.S. Department of Labor
   200 Constitution Ave, NW Room N 3119
   Washington, DC 20210
   
    
3. Pursuant to 29 C.F.R. § I 903.19(g), ConAgra must notify employees and their authorized employee representatives of abatement activities in accordance with this regulation. ConAgra shall post a copy of this Agreement at all facilities covered by this Agreement for ten (10) days following final approval of the Agreement by the OSHRC.
    

X.

Modification of Abatement

ConAgra may petition OSHA for Modification of Abatement Dates, pursuant to 29 C.F.R. § 1903.14a, if ConAgra is unable to meet any abatement deadline set forth in Section V and VI of this Agreement because offactors beyond ConAgra's reasonable control and despite ConAgra's good faith effort to comply with the required abatement measures. OSHA agrees that any such Petition for Modification of Abatement Date ("PMA") submitted by ConAgra to the Directorate of Enforcement Programs in OSHA's National Office, and any extension of time approved by OSHA in response to such a PMA, need not be made specific to a single worksite, but may be made to apply to any or all of the worksites covered by this Agreement. Any extension of time approved by OSHA's National Office in response to a PMA submitted by ConAgra during the tenn of this Agreement shall be automatically incorporated into this Agreement and binding upon the Parties. and ConAgra retains its right to seek variances.

XI.

Costs

Each party agrees to pay its own attorneys' fees, costs, and other expenses incurred by such party in connection with any stage of the above-referenced proceeding including, but not limited to, attorneys' fees that may be available under the Equal Access to Justice Act, as amended.

XII.

Exculpatory Clause

None of the foregoing agreements, statements, stipulations, findings and actions taken by Respondent shall be deemed an admission by Respondent of(i) the allegations contained within the Citation and Notification of Penalty, or (ii) any violations of the Act. The agreements, statements, stipulations, findings and actions taken herein are made for the purpose of settling this matter economically and amicably and shall not be used for any purpose, except for proceedings and matters instituted by the Agency under the Act.

Both ConAgra and OSHA are entering into this Agreement without any prejudice to their rights to raise any argument or defense in any future or pending case before the Occupational Safety and Health Review Commission or any other proceedings, including but not limited to the right to assert that any future conditions identical or similar to those alleged in the citation do or do not violate the Occupational Safety and Health Act, or any standard or regulation promulgated or asserted thereunder or that any proposed abatement measure identical or similar to those discussed in this Agreement will or will not be appropriate in other cases.

XIII.

Effective Date and Term of Agreement

This Agreement shall be effective upon execution. This Agreement shall terminate two (2) years after its effective date.

XIV.

Notice and Communications

All notices and communications related to this Agreement shall be to the following persons at the following addresses:

OSHA

Thomas Galassi, Director
Directorate of Enforcement Programs
Occupational Safety and Health Administration
U.S. Department of Labor
200 Constitution Ave, NW Room N-3119
Washington, DC 20210

ConAgra

Thomas Culross
Vice President, Environment, Health and Safety
ConAgra Foods, Inc.
II ConAgra Drive CC-165
Omaha, NE 68102

XV.

Failure to Abate and Section ll(b) of the Act

Failure to comply with this Agreement is grounds for notice of failure to abate under Section 10 of the OSH Act, and/or by enforcement under Section ll(b) of the OSH Act. ConAgra agrees that is will not object to OSHA seeking enforcement of a final order of the OSHRC pursuant to Section 11(b) ofthe OSH Act in the appropriate U.S. Court of Appeals.

XVI.

Service and Posting

1. ConAgra certifies that the nwnes and addresses of all authorized employee representatives of affected employees are:
   
   Batesville. AR
   IBT- Local 878
   6000 Patterson Ave.
   P.O. Box 190070
   Little Rock, AR 72219
   
   UFCW- Local 2008
   7924 Interstate 30, Suite A
   Little Rock, AR 72209
   
   Trenton, MO
   BCTGM-Local 1940
   903 Main St.
   Trenton, MO 64683-2106
   
   American Fails
   IBT- Local983
   P.O. Box 1085
   Pocatello, ID 83201
    
2. Pursuant to OSHRC Rules 7 and 100,29 C.F.R. Parts 2200.7 and 2200.100 ConAgra served a copy of this agreement on the authorized representatives in paragraph A. above, by postage prepaid first-class mail this 17th day of June, 2013.
    
3. Pursuant to OSHRC Rules 7 and 100,29 C.F.R. Parts 2200.7 and 29 C.F.R. § 2200.100, ConAgra served a copy of this agreement on unrepresented employees by posting this document where the citation is required to be posted on the 17th day of June, 2013.
    

XVII.
No Alteration of Emplovee Rights

Nothing in this Agreement alters in any manner the rights afforded employees under the OSH Act.

NOTICE

Any party (including any authorized employee representative of affected employees and any affected employee not represented by nn authorized employee representative) that has any objection to the entry of an order as set forth herein should communicate such objection within ten (10) days of the posting of this agreement to the Occupational Safety and Health Review Commission.

APPENDIX A

STIPULATION AND AGREEMENT

Appendix A consists of the addresses of the following ConAgra facilities subject to the Stipulation and Agreement regarding low pressure ammonia receivers:

Batesville, Arkansas facility:

1810 S. Louis Street
Batesville, AR 72501

Trenton, Missouri facility:

1401 Harris A venue
Trenton, MO 64683

Troy, Ohio facility:

801 Dye Mill Road
Troy, OH 45373

American Falls, Idaho facility:

2975 Lamb Weston Road
American Falls, ID 83211

Twin Falls, Idaho facility:

856 Russet Street
Twin Falls, 10 83301