U. S. DEPARTMENT OF LABOR

OFFICE OF THE SOLICITOR 525 S. Griffin Street, Suite 501 Dallas, Texas 75202 (972) 850-3100 (972) 850-3101 Fax Reply to the Attention of: MPSallusti: Ik

Via United States Mail
April 25,2012

Honorable Stephen J. Simko, Jr.
Administrative Law Judge
Occupational Safety and Health
Review Commission
1924 Building, Suite 2R90
100 Alabama Street, S. W.
Atlanta, Georgia, 30303

Re: Secretary v. Enterprise Products Transportation Company, LLC
OSHRC Docket No. 11-2566
OSHA Inspection No. 312926280
RSOL Case No. 11-01564

Dear Judge Sirnko:

Enclosed for filing are the original and one copy of a Settlement Agreement entered in OSHRC Docket No. 11-2566 executed by all parties herein. Please file this instrument and return a conformed copy to me in the enclosed envelope, indicating the date filed.

A proposed Order has been enclosed for you consideration.

Should you have any questions, please do not hesitate to contact me at 972/850-3117.

Respectully,

Matthew P. Sallusti
Attorney

Enclosures

cc: Via United States Mail
T.J. Wray (with enclosures)
Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 1300
Houston, Texas 77010

Via United States Mail
Area Director Mark R. Briggs (with enclosures)
Occupational Safety and Health Administration
Houston South Area Office
17625 El Camino Real
Suite 400
Houston, Texas 77058

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SETTLEMENT AGREEMENT

COME NOW the Complainant, Hilda L. Solis, Secretary of Labor, United States Department of Labor, and the Respondent, Enterprise Products Transportation Company, LLC and submit the following settlement agreement pursuant to Rule 2200.1 00 of the Commission's Rules of Procedure:

This Settlement Agreement specifies the terms of settlement as set out below for each contested item and disposes of all issues in the case. Affected employees have not filed objections to the reasonableness of any abatement items.

1. Complainant makes no change to Citation 1, Item 1. Citation 1, Item 1 remains serious with a total penalty of seven thousand dollars ($7,000.00).

2. Complainant agrees to group Citation 1, Items 2 and 3. Complainant agrees to amend and change this now grouped item from serious to other than serious and agrees to amend and reduce the total penalty for this now grouped item to four thousand dollars ($4,000.00).

3. Complainant agrees to withdraw Citation 1, Item 4. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer. 4. Complainant agrees to amend and change the total penalty for Citation 1, Item 5a from five thousand dollars ($5,000.00) to seven thousand ($7,000.00). Citation 1, Item 5a remains serious.

5. Complainant agrees to withdraw Citation 1, Item 5b. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.

6. Complainant agrees to amend and change Citation 1, Item 6 from serious to other than serious, however, the total penalty remains four thousand dollars ($4,000.00).

7. Complainant makes no change to Citation 1, Item 7. Citation 1, Item 7 remains serious with a total penalty of five thousand dollars ($5,000.00).

8. Complainant agrees to amend and change Citation 1, Item 8 from serious to other than serious and agrees to amend and reduce the total penalty from seven thousand dollars ($7,000.00) to three thousand dollars ($3,000.00).

9. Complainant makes no change to Citation 1, Item 9a. Citation 1, Item 9a remains serious with a total penalty of seven thousand dollars ($7,000.00).

10. Complainant agrees to withdraw Citation 1, Item 9b. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.

11. Complainant agrees to withdraw Citation I, Item 10. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.

12. Complainant makes no change to Citation 1, Item I 1 a. Citation 1, Item I la remains serious with a total penalty of five thousand dollars ($5,000.00).

13. Complainant agrees to withdraw Citation 1, Item I lb. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.

14. Complainant makes no change to Citation 1, Item 12. Citation 1, Item 12 remains serious with a total penalty of seven thousand dollars ($7,000.00).

15. Complainant agrees to amend Citation 1, Item 13 as follows:

29 CFR 19 10.147(c)(1): The employer shall establish a program consisting of energy control procedures, employee training and periodic inspections to ensure that before any employee performs any servicing or maintenance on a machine or equipment where the unexpected energizing, start up or release of stored energy could occur and cause injury, the machine or equipment shall be isolated from the energy source, and rendered inoperative.

The employer did not develop an energy control program consisting of procedures, periodic inspection and employee training. As amended above, Citation 1, Item 13 will be classified as other than serious with a total penalty of seven thousand dollars ($7,000.00).

16. Complainant agrees to withdraw Citation 1, Item 14. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.

17. Complainant agrees to withdraw Citation 1, Item 15. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.

18. Complainant agrees to amend and change Citation 1, Item 16a from serious to other than serious, but maintain the total penalty of seven thousand dollars ($7,000.00).

19. Complainant agrees to withdraw Citation 1, Item 16b. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.

20. Complainant agrees to amend and change Citation 1, Item 17 from serious to other than serious and agrees to amend and reduce the total penalty from five thousand dollars ($5,000.00) to two thousand dollars ($2,000.00).

21. Complainant agrees to withdraw Citation 1, Item 18. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.

22. Complainant makes no change to Citation 1, Item 19. Citation 1, Item 19 remains serious with a total penalty of five thousand dollars ($5,000.00).

23. Complainant makes no change to Citation 1, Item 20a. Citation 1, Item 20a remains serious with a total penalty of seven thousand dollars ($7,000.00).

24. Complainant agrees to withdraw Citation 1, Item 20b. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.

25. Complainant agrees to amend and change Citation I, Item 21 from serious to other than serious and agrees to amend and reduce the total penalty from five thousand dollars ($5,000.00) to one thousand dollars ($1,000.00).

26. Complainant agrees to amend and change Citation 1, Item 22 from serious to other than serious and agrees to amend and reduce the total penalty from four thousand dollars ($4,000.00) to three thousand dollars ($3,000.00).

27. Complainant agrees to group Citation 1, Items 23 and 25. Complainant agrees to amend and change this now grouped item from serious to other than serious and agrees to amend and reduce the total penalty for this now grouped item to five thousand dollars ($5,000.00).

28. Complainant makes no change to Citation 1, Item 24. Citation 1, Item 24 remains serious with a total penalty of seven thousand dollars ($7,000.00).

29. Complainant agrees to group Citation 1, Items 26 and 29. Complainant agrees to amend and change this now grouped item from serious to other than serious and agrees to amend and reduce the total penalty for this now grouped item to seven thousand dollars ($7,000.00).

30. Complainant agrees to withdraw Citation 1, Item 27. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.

31. Complainant agrees to withdraw Citation 1, Item 28. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.

32. Complainant makes no change to Citation 2, Item 1. Citation 2, Item 1 remains other than serious with a total penalty of zero dollars ($0.00).

33. Complainant agrees to withdraw Citation 2, Item 2. The withdrawal of this item is not intended to affect the Secretary's interpretation of the standard, compliance with the standard, nor its application to this employer.

34. Complainant makes no change to Citation 2, Item 3. Citation 2, Item 3 remains other than serious with a total penalty of zero dollars ($0.00).

35. Respondent promises to pay the one hundred thousand dollars ($100,000.00) in assessed penalties no later than ten (10) days after the entry of a final order of the Commissionapproving this settlement agreement. Respondent shall tender payment to: Occupational Safety and Health Administration, 17625 El Camino Real, Suite 400, Houston, Texas, 77058. The cashier's check shall be made payable to "U. S. Department of Labor - OSHA."

36. The abatement requirements as described in paragraphs 37 and 38 of this Agreement are intended to apply to Respondent's worksites located in Freeport, Texas; Baytown, Texas; Beaumont, Texas; Lake Charles, Louisiana; and Baton Rouge, Louisiana.

37. On or before January l,20 13, Respondent agrees to:

a. develop and implement an emergency action plan that will comply with 29 CFR 1910.38(c), including but not limited to providing for distinctive signals for specified emergencies, actions required, and training of employees concerning the same.

b. develop and implement an energy control program consisting of procedures, periodic inspection and employee training of the program concerning the hazards associated with the boiler(s).

c. provide accurate identification information of the heel, necessary personal protective equipment, and emergency information to tank washers (including but not limited to chemical identity, physical and health hazard information, emergency procedures and necessary personal protective equipment information).

d. install a personal fall protection system with horizontal lifeline and retractable lanyard designed by a qualified person and installed in accordance with manufacturer's instructions and ANSI 23 59.1 - 1993.

38. Within 10 calendar days of developing and/or implementing the items addressed in paragraph 37, Respondent will provide copies of all written programs, plans, and identification information developed and implemented and will confirm that all employees impacted by the creation of all such written programs, plans, and identification information were trained in accordance with the written programs, plans, and identification information developed and implemented to Occupational Safety and Health Administration, 17625 El Camino Real, Suite 400, Houston, Texas, 77058 and will reference OSHRC Docket No. 11-2566 and Inspection No. 3 12926280 in its letter.

39. Pending the completion of the permanent abatement measures described in paragraph 37 and 38, Respondent represents that it has taken the following interim measures at its worksites located in Freeport, Texas; Baytown, Texas; Beaumont, Texas; Lake Charles, Louisiana; and Baton Rouge, Louisiana: (I) retrain affected and authorized employees in proper personal protective equipment procedures when washing tanks; (2) retrain affected and authorized employees on lockout/tagout requirements; (3) install temporary supplied air line systems; (4) retrain all employees on respiratory protection program; (5) train affected employees on Respondent's new personal protective equipment policy; (6) install temporary engineered cable fall protection systems; (7) reviewed all safety policies and revised as appropriate for fall protection, lockout/tagout, respiratory protection, confined space entry, and breathing air policies; (8) revised tank opening procedures; and (9) evaluated electrical installations at all sites for compliance. In accordance with requirements of paragraph 41, Respondent will provide OSHA with documentation that verifies completion of the aforementioned interim measures.

40. Respondent states that the specific conditions at Freeport, Texas described in Citation No. 1, Item Nos. 1, 2, 3, 5a, 5b, 6, 7, 8, 9a, lla, 12, 13, 16a, 17, 19, 20a, 21, 22, 23, 24, 25, 26, 28, and 29 and Citation 2, Item Nos. 1 and 3 have been corrected.

41. Respondent will comply with all applicable abatement verification provisions of 29 C.F.R. § 1903.19, including but not limited to, all certification, documentation, and posting requirements. Abatement certification shall be accomplished within 10 calendar days after the abatement date, which shall be the date of the last signature on this Agreement, by mailing a letter to Occupational Safety and Health Administration, 17625 El Camino Real, Suite 400, Houston, Texas, 77058, stating that abatement has been completed, the date and method of abatement, and that affected employees and their representatives have been informed of the abatement. Any required abatement documentation shall be submitted along with the abatement certification.

42. The parties agree that the citation as amended and the specific abatement measures set forth in paragraphs 37 and 38 of this Agreement shall be considered required abatement of the cited conditions and that the failure to perform any measures required in the Agreement may be cited as failure to abate under Section 10(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq. ("the Act"), 29 U.S.C. § 659(b), to the same extent as if these abatement measures had been set forth from the outset in the Citations issued in this matter.

43. Respondent agrees that failure to implement the abatement measures set forth in paragraphs 37 and 38 of this Agreement may be subject to an enforcement action brought by Complainant pursuant to Section 11(b) of the Act, 29 U.S.C. § 660(b), to the same extent as if these abatement measures had been set forth from the outset in the Citations issued in this matter. Respondent agrees that it will not oppose the entry of such an order of enforcement by the United States Court of Appeals to which Complainant presents this Agreement and supporting documents.

44. Respondent promises to permit Complainant access to the workplace at issue herein subsequent to the dates fixed for abatement for the specific and limited purpose of determining if the conditions described in Citation 1, Item Nos. 1, 2, 3, 5a, 5b, 6, 7, 8, 9a, 11a, 12, 13, 16a, 17, 19, 20a, 21, 22, 23, 24, 25, 26, 28, and 29 and Citation 2, Item Nos. 1 and 3 have been corrected.

45. Respondent withdraws its notice of contest.

46. Neither this Settlement Agreement nor Respondent's consent to entry of a final order by the Commission pursuant to this Agreement constitutes any admission by Respondent of a violation of the Occupational Safety and Health Act or regulations or standards promulgated there under. Neither this Settlement Agreement nor any order of the Commission entered pursuant to this Agreement shall be offered, used or admitted in evidence in any proceeding or litigation, whether civil or criminal, except for proceedings and matters brought by the United States Government. Respondent is entering into said Agreement without any prejudice to its rights to raise any defense or argument in any future or pending cases before this Commission. Respondent retains the right to assert in any subsequent action or proceeding that any future existing conditions identical or similar to those alleged in the original Citation, the Citation as amended or the Complaint do not violate the Occupational Safety and Health Act or any standard promulgated there under. By entering into this Agreement, Respondent does not admit the truth of any alleged facts, any of the characterizations of Respondent's alleged conduct or any of the conclusions set forth in the Citation or amended Citation issued in this matter.

47. Respondent promises to continue good faith efforts to comply with the Occupational Safety and Health Act.

48. Respondent certifies that the affected employees in the above-styled case are not represented by an authorized employee representative.

49. Respondent certifies that a copy of this settlement agreement has been served upon the unrepresented affected employees in the manner set forth in Rule 2200.1 00 of the Commission's Rules of Procedure, by posting same on the ____ day of ___________, 2012.

50. Each party agrees to pay 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 which may be available under the Equal Access to Justice Act, as amended.

NOTICE TO AFFECTED EMPLOYEES NOT
REPRESENTED BY A LABOR ORGANIZATION

EACH AFFECTED EMPLOYEE WHO IS NOT REPRESENTED BY A LABOR ORGANIZATION HEREBY IS GIVEN NOTICE THAT ANY OBJECTIONS TO THE ENTRY OF AN ORDER TERMINATING THIS LITIGATION MUST BE FILED WITHIN TEN (10) DAYS FROM THE DATE THAT THIS SETTLEMENT AGREEMENT IS POSTED. SUCH OBJECTIONS MUST BE SET FORTH IN WRITING AND MAILED TO THE HONORABLE STEPHEN J. SMIKO, ADMINISTRATIVE LAW JUDGE, OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, 100 ALABAMA STREET S.W., BUILDING 1924, ROOM 2R90, ATLANTA, GEORGIA, 30303 WITH COPIES TO COMPLAINANT AND RESPONDENT.

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ORDER

The parties have submitted a settlement agreement pursuant to Rule 100 of the Rules of Procedure. The agreement meets the requirements of the Commission for hospitable consideration of settlements. No objection has been received horn affected employees. The settlement agreement is approved and incorporated herein by reference.

SO ORDERED.

SIGNED this ______ day of ________________________ ,2012

HONORABLE STEPHEN J. SIMKO, JR.
Administrative Law Judge