________________________________________________
)
NATIONAL ELECTRICAL MANUFACTURERS ASSOCIATION, )
)
Petitioner, )
)
v. )
) No. 92-2947
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, )
U.S. DEPARTMENT OF LABOR, )
ROBERT B. REICH, U.S. SECRETARY OF LABOR, )
DAVID ZEIGLER, ACTING ASSISTANT )
SECRETARY OF LABOR, )
)
Respondents. )
________________________________________________)
Pursuant to Federal Rule of Appellate Procedure 42(b), Petitioner, National Electrical Manufacturers Association (NEMA), and Respondents, Robert B. Reich, U.S. Secretary of Labor, and the Occupational Safety and Health Administration (OSHA), agree that this proceeding shall be dismissed, each party to pay its own costs and fees.
WHEREAS, OSHA has promulgated an Occupational Safety and Health Standard for Exposure to Cadmium (29 CFR 1910.1027, 57 Fed. Reg. 42102 et seq., September 14, 1992) (the "Cadmium Standard"); and
WHEREAS, NEMA has petitioned for review of the Cadmium Standard in the above-captioned proceeding; and
WHEREAS, NEMA and OSHA wish to resolve certain issues relating to the Cadmium Standard which impact the operations of several of NEMA's members; and
WHEREAS, OSHA has independently and separately settled issues relating to the Cadmium Standard with several of NEMA's members; and
WHEREAS, OSHA and NEMA wish to resolve certain issues relating to the Cadmium Standard for the one remaining member of NEMA affected by the Cadmium Standard, Marathon Power Technologies (MPT); and thereby settle this proceeding;
THEREFORE, NEMA and OSHA agree as follows:
1. OSHA agrees that MPT may include in its Compliance Plan for the Cadmium Standard the provisions set forth in Appendix A of this Agreement, and that compliance by MPT with each such provision shall constitute compliance by MPT with the specified requirements of the referenced paragraphs and subparagraphs of the Cadmium Standard to which such provisions relates, as set forth in Appendix A.
2. NEMA agrees that by June 9, 1993, it will file with the United States Court of Appeals for the Eleventh Circuit a motion to dismiss the NEMA petition with prejudice.
3. NEMA and OSHA agree that this Settlement Agreement extends to, binds and inures to the benefit of MPT, its successors and assigns.
4. NEMA and OSHA each agrees to bear its own attorney fees, costs and other expenses incurred in connection with these proceedings up to and including the filing of the motion to dismiss the NEMA petition.
IN WITNESS WHEREOF the parties have executed this Agreement as of the 8th day of June, 1993.
NATIONAL ELECTRICAL MANUFACTURERS
ASSOCIATION
By:_______________________________
Steven S. Rosenthal
ROBERT B. REICH, U.S. SECRETARY OF
LABOR, AND OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION
By:_______________________________
Charles E. Adkins
Director of Health Standards Programs,
Occupational Safety and Health
Administration
I. PURPOSE
This plan describes engineering controls and work practices for controlling employee exposure to cadmium in the nickel- cadmium battery manufacturing facility owned and operated in Waco, Texas by Marathon Power Technologies (MPT). The plan also includes additional provisions of MPT's plan for compliance with certain other requirements of the standard. In adopting this compliance plan, it is the understanding of OSHA and MPT that MPT will be undertaking certain actions in an effort to reduce employee exposure to Cadmium to below the PEL. This compliance plan is submitted to, and accepted by, OSHA with the mutual understanding that compliance with its provisions constitutes compliance with the specified requirements of the paragraphs or sub-paragraphs of the cadmium standard to which each provision relates, as specifically referenced below. The plan extends to, binds and inures to the benefit of MPT, its successors and assigns.
II. ENGINEERING CONTROLS
In order to satisfy the requirements for engineering controls of paragraph (f) of the cadmium standard, MPT shall do the following:
A. Platemaking and Plate Preparation. By December 31, 1993, MPT shall relocate the cadmium plate preparation and assembly areas to a designated area with a (i) centralized vacuuming system and (ii) specialized local exhaust systems.
B. Processing and Plaque Brushing. By June 1, 1994, MPT shall install appropriate local exhaust systems or similar equipment, as feasible, in an effort to reduce employee exposure to the PEL.
C. As equipment used to control cadmium exposure is installed, develop and implement a comprehensive preventive maintenance program to assure that the equipment continues to operate properly and achieve its intended purpose.
D. It is understood that some exposures in some operations in MPT's plant may exceed the PEL despite MPT's implementation of engineering controls and the comprehensive preventive maintenance program described in paragraphs II(A), (B), and (C) of this compliance plan. Since measurements over the PEL and SECAL(s) may occur which may be due to sampling error, random variability of airborne cadmium levels, or feasibility constraints, to determine whether MPT is in compliance with paragraph (f)(1)(ii) of the cadmium standard when some air monitoring results exceed the applicable SECAL, OSHA will consider, among other things, whether the results are unrepresentatively high in light of MPT's past monitoring data.
III. SHOWER FACILITIES
In order to satisfy the provisions of 29 C.F.R. 1910.1027(j)(1) and (j)(3) requiring wet showers, MPT shall require all employees exposed above the PEL to pass through air tunnel(s), devices designed to remove cadmium from the clothes and skin of employees in a manner minimizing dispersion, at the end of their work shift and on each occasion when the employee exits a regulated area. If engineering and work practice controls have not succeeded in reducing all employee exposures to or below the PEL by June 1, 1995, then MPT shall comply with the shower provisions of paragraphs (j)(1) and (j)(3) by December 1, 1995, or within six months after OSHA has denied any application for a permanent variance submitted by MPT no later than September 1, 1995, whichever is later. If, however, in accordance with section 6(d) of the OSH Act, MPT is able to present sufficient objective evidence that its air shower is as effective as a wet shower in removing cadmium from employees' hair and skin, OSHA will grant a permanent variance from the wet shower requirement.
IV. LUNCHROOM HOUSEKEEPING
A. In order to meet the requirement of paragraph (j)(4)(i) of the cadmium standard that "tables for eating are maintained free of cadmium," MPT shall wet wipe each lunchroom table at least every four hours during which the lunchroom is continuously open and available for use, and, during periods of non-continuous use, shall wet-wipe them before each meal period.
B. In order to meet the requirement of paragraph (j)(4)(ii), within 12 weeks of the approval of this settlement agreement, MPT shall install air tunnel(s) at the egress point from any regulated area and require employees to pass through the air shower prior to entering the vending and cafeteria area for breaks and lunch.
V. MEDICAL REMOVAL PROTECTION
A. After January 1, 1999, MPT shall fully comply with the requirements of 29 C.F.R. 1910.1027(l)(3)(ii)-(iv) for medical removal of exposed employees except to the extent MPT has applied for and received a variance under section 6(b)(6) or section 6(d) of the OSH Act.
B. During the period from the effective date of this Agreement until January 1, 1996, in order to comply with the requirements of paragraphs (l)(3)(ii)-(iv) for medical removal of exposed employees, MPT shall mandatorily remove any employee subject to medical surveillance to a job having airborne cadmium exposure below the action level whenever both the employee's initial or periodic biological monitoring results and the follow- up set of biological monitoring test results required by paragraph (l)(3)(iii) show either:
1. CdB levels in excess of 15 ug/Lwb; or
2. B(2)-M levels in excess of 1500 ug/g Cr, coupled with CdU levels in excess of 3 ug/g Cr or CdB levels in excess of 5 ug/Lwb; or
3. CdU levels in excess of 15 ug/g Cr.
MPT shall also evaluate for medical removal any employee whose most recent biological monitoring results show either CdU in excess of 10 and less than or equal to 15 ug/g Cr; CdB in excess of 12 and less than or equal to 15 ug/Lwb; or B(2)-M in excess of 1000 and less than or equal to 1500 ug/g Cr coupled with CdU levels in excess of 3 ug/g Cr or CdB levels in excess of 5 ug/Lwb. For any such employee, MPT shall perform follow-up biological monitoring within 90 days. MPT shall mandatorily remove the employee unless the follow-up measurements show:
(i) decreases in any CdU level that exceeded 3 ug/g Cr and any CdB level that exceeded 5 ug/Lwb, and stability or decline in any B(2)-M level that exceeded 300 ug/g Cr; and
(ii) no increase in any CdU, CdB, or B(2)-M level that was less than 3 ug/g Cr, 5 ug/Lwb, and 300 ug/g Cr respectively to levels in excess of 3 ug/g Cr, 5 ug/Lwb, and 300 ug/g Cr respectively.
C. During the period January 1, 1996 to January 1, 1999, MPT shall mandatorily remove any employee who meets the criteria identified in V.B above. MPT shall also evaluate for medical removal any employee whose most recent biological monitoring results show CdU in excess of 7 but less or equal to 10 ug/g Cr; CdB in excess of 10 but less than or equal to 12 ug/Lwb; or B(2)- M in excess of 750 but less than or equal to 1000 ug/g Cr coupled with CdU levels in excess of 3 ug/g Cr or CdB levels in excess of 5 ug/Lwb. For any such employee, MPT shall perform follow-up biological monitoring within 120 days. MPT shall mandatorily remove the employee unless the follow-up measurements show:
(i) decreases in any CdU level that exceeded 3 ug/g Cr and any CdB level that exceeded 5 ug/Lwb, and stability or decline in any B(2)-M level that exceeded 300 ug/g Cr; and
(ii) no increase in any CdU, CdB, or B(2)-M level that was less than 3 ug/g Cr, 5 ug/Lwb, and 300 ug/g Cr respectively to levels in excess of 3 ug/g Cr, 5 ug/Lwb, and 300 ug/g Cr respectively.
D. Prior to January 1, 1999, in order to comply with the requirements of paragraphs (l)(3)(ii)-(iv) for medical removal of exposed employees, MPT shall not be required to remove any employee for whom biological monitoring test results do not show either a CdU level greater than 7 ug/g Cr; CdB level greater than 10 ug/Lwb; or B(2)-M greater than 750 ug/g Cr coupled with CdU level greater than 3 ug/g Cr or CdB level greater than 5 ug/Lwb.
E. This compliance plan eliminates the physician's obligation under paragraphs (l)(3)(ii)-(iv) to determine in writing whether an employee should be medically removed when the employee's biological monitoring results are above the limits specified in paragraph (l)(3)(i) and at or below the limits specified in paragraphs (l)(3)(iii) and (l)(3)(iv)(C). It does not, however, in any way affect the ultimate discretion that a physician must have to remove workers for medically sufficient reasons, other than biological monitoring results alone, as specified in paragraph (l)(11)(i)(A). After January 1, 1999, MPT shall fully comply with the requirements of paragraphs (l)(3)(ii)-(iv) for medical removal of exposed employees unless prior to that date it applies for and receives a variance under Section 6(b)(6) or Section 6(d) of the OSH Act.
VI. PREVIOUSLY EXPOSED WORKERS
In order to comply with the requirement of 29 C.F.R. 1910.1027(l)(4)(v)(A) on discontinuation of medical surveillance of "previously exposed" employees (as defined in paragraph (l)(1)(i)(B)), the company need not conduct additional biological monitoring of an employee whenever:
(a) the initial biological monitoring tests show the employee's CdU level to be at or below 3 ug/g Cr, B(2)-M level to be at or below 300 ug/g Cr, and CdB level to be at or below 5 ug/Lwb;
(b) the employee has never held a job at MPT for which airborne cadmium exposure exceeded an eight-hour time- weighted-average of 25 ug/m(3);
(c) the employee has not held a job at MPT with airborne cadmium exposure at or above the action level at any time during the most recent five years; and
(d) a company-designated physician determines that further medical surveillance of the employee is not required to protect the employee's health.
VII. BIOLOGICAL MONITORING IN GENERAL
Before taking any action required by a single biological monitoring result under paragraph (l), if MPT has good reason to believe that the first result cannot be representative of the employee's levels of cadmium or B(2)-M in urine or cadmium in blood and MPT documents that reason, MPT may promptly conduct a follow-up test. If the results of the follow-up test would not require the action, then MPT need not take that action. Otherwise, the action must be taken within the time period specified in the applicable provision of paragraph (l) measured from the date of receipt of the results of the first test, except that any such time period of two weeks or less shall be measured from the date of receipt of the results of the follow-up test.
VIII. COMPLIANCE MONITORING
A. After January 1, 1994, MPT agrees to permit OSHA access to its facility in Waco to provide OSHA (i) the opportunity to review and assess MPT's compliance with this agreement and (ii) to conduct unannounced air monitoring for potential exposure to cadmium.
B. Until January 1995, MPT agrees to submit status reports to OSHA describing the steps it is taking to implement the provisions of this Agreement. The status reports shall include a description of the implementation of engineering controls formatted with accompanying before and after air and biological monitoring data as well as air and biological monitoring results for all employees exposed above the action level. The first status report will be submitted within 60 days of the signing of this Agreement. The next status reports will be submitted at 60 day intervals. After January 1995 no further status reports shall be submitted.
IX. EXPIRATION DATE
Unless extended in writing by the mutual consent of MPT and OSHA, this compliance plan shall expire in accordance with the dates set forth herein.
X. POSTING
MPT shall provide this Settlement Agreement to affected employees by posting it on a bulletin board or other worksite location where employees normally receive important information.