UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

STIPULATION AND SETTLEMENT AGREEMENT

I.

Scope and Intent of Agreement

1. Complainant, Hilda L. Solis, Secretary of Labor, United States Department of Labor, through the Occupational Safety and Health Administration ("OSHA"), and Respondent, Republic Steel (formerly known as Republic Engineered Products, Inc.) ("Republic" or "Respondent"), submit the following stipulation and settlement agreement ("Agreement") pursuant to Rule 2200.100 of the Occupational Safety and Health Review Commission ("OSHRC") Rules of Procedure.
    
2. Republic Steel is the properly named Respondent for this action.
    
3. This Agreement constitutes a full and complete settlement of the contested Citations, proposed penalties, and abatement dates at issue and disposes of all issues in the above-styled case, OSHRC Docket No. 11-1533, arising from OSHA Inspection No. 313785941.
    
4. Respondent's employees are represented by a certified bargaining representative.
    
5. The Citations are amended to include the abatement requirements as described in this Agreement below and they are intended to apply to all existing Republic facilities under federal OSHA jurisdiction but excluding those Republic facilities located in states that administer state plans approved under Section 18 of the Occupational Safety and Health Act of 1970,29 CFR U.S.C. § 651, et seq. (the "Act").
    
6. Accordingly, this Agreement applies to the following Republic steelmaking facilities:
    

Republic Steel - Lorain Plant
1807 East 28th Street
Lorain, Ohio 44055

Republic Steel - Canton Plant
2633 Eighth Street, NE
Canton, Ohio 44074

Republic Steel - Massillon Plant
401 Rose A venue, SE
Massillon, Ohio 44646

Republic Steel- Lackawanna Plant
3049 Lakeshore Road
Blasdell, New York 14219

II.

Amendment of the Citations

1. The parties agree that the Citations issued to Republic on May 16, 2011, and as further described below are amended by this Agreement to include the full terms of this Agreement including the abatement actions and dates stated herein.
    
2. The issued Citations are amended as follows:
    
   1. Citation No. 1, Item 1 is affirmed as a willful violation of 29 CFR 1910.23(c)(l) with a penalty of $70,000.00.
       
   2. Citation No. 1, Items 2 through 4 are grouped to allege willful violations of29 CFR 1910.132(a) on November 19, 2010, with a single penalty of$70,000.00.
       
   3. Citation No. 1, Items 5 and 6 are grouped to allege willful violations of29 CFR 1910.132(a) on November 20,2010, with a single penalty of$70,000.00.
       
   4. Citation No. 1, Item 7 is amended to allege a repeat violation of 29 CFR 191 0.147(d)(4)(i) and grouped with Citation No.2, Item 1, which alleges a repeat violation of29 CFR 1910.147(c)(4)(i). A single penalty of$10,000.00 is affirmed for these items.
       
   5. Citation No. 2, Item 2 is affirmed as a repeat violation of 29 CFR 1910.147(c)(7)(i) with a penalty of$7,500.00.
       
   6. Citation No. 2, Item 3 1s affirmed as a repeat violation of 29 CFR 1910.147(d)(3) with a penalty of$7,500.00.
       
3. The penalties proposed in the Citations subject to this Agreement are amended to total $235,000.
    

III.
 

Withdrawal of Notice of Contest and Entry of Final Order

Respondent hereby withdraws its notice of contest to the Citations, 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 ofthis Agreement.

IV.

Payment of Penalties

Respondent agrees to pay the sum of $235,000.00 (Two Hundred Thirty Five Thousand Dollars) within thirty (30) days after this Agreement becomes a final order of the OSHRC. Respondent shall tender payment to the U.S. Department of Labor, OSHA, in care of Kim Nelson--Area Director, OSHA Toledo Area Office, 420 Madison Avenue, Suite 600, Toledo, Ohio 43604. The check shall be made payable to "U.S. Department of Labor--OSHA."

V.

Abatement, Certification and Documentation

1. Respondent represents that the violations alleged in the Citations issued on May 16, 2011 have been abated and that all certification, documentation and posting requirements have been met in connection with such abatements.
    
2. With respect to the specific abatement measures set forth in Parts VI and VII of this Agreement with deadlines, Respondent will comply with all applicable abatement verification provisions of 29 CFR 1903.19, including but not limited to, all certification, documentation, and posting requirements. Abatement certification shall be accomplished by providing a Certificate of Abatement by no later than the later often (10) calendar days after the effective date of this Agreement or ten (1 0) calendar days after the applicable abatement deadlines established herein, by mailing a letter to: Kim Nelson--Area Director, OSHA Toledo Area Office, 420 Madison A venue, Suite 600, Toledo, Ohio 43604, certifying that affected employees and their representatives have been informed of the abatement measures taken. Required abatement documentation shall be submitted along with the abatement certification. A copy of the abatement verification will also be provided to the Authorized Employee Representative to the attention of the following: Steve Sallman, United Steelworkers, Health, Safety & Environment Department, Five Gateway Center, Pittsburgh, PA 15222.
    
3. Respondent will submit quarterly progress reports for all other abatement measures required in Parts VI and VII of this Agreement. Respondent shall submit each quarterly progress report no later than ten (1 0) calendar days after the end of each calendar quarter to Kim Nelson--Area Director, OSHA Toledo Area Office, 420 Madison Avenue, Suite 600, Toledo, Ohio 43604. A copy of each quarterly progress report will also be provided to the Authorized Employee Representative to the attention of the following: Steve Sallman, United Steelworkers, Health, Safety & Environment Department, Five Gateway Center, Pittsburgh, PA 15222.
    

VI.
 

Corporate-Wide Additional Abatement Measures

Unless otherwise stated, abatement measures described in Paragraphs VI (A)-(D) apply to Respondent's Lorain Plant, Canton Plant, Massillon Plant and Lackawanna Plant (the "Covered Facilities"). Respondent shall comply with the Corporate-Wide Additional Abatement Measures throughout the effective term of the Agreement, set forth in Part XII, unless otherwise indicated.

1. Safety Structure Improvements
    
   1. Full-time Health & Safety Manager. Within 90 days after the effective date of this agreement, Respondent agrees to retain qualified individuals to serve as full-time salaried health & safety managers for Respondent's Lorain Plant, Canton Plant, and Lackawanna Plant; these individuals will not also have primary plant environmental responsibilities. Respondent also agrees to retain a qualified individual to serve as full-time salaried health & safety manager for its Massillon Plant, except this individual may also have primary plant environmental responsibilities. Each of the foregoing four individuals ("Health & Safety Managers") shall be supervised by and directly report to Respondent's Director of Environment, Health & Safety at corporate .headquarters. The Health & Safety Managers shall have authority to suspend work until any health and safety issue has been abated, without first referring the matter to the plant manager or other managers or supervisors.
       
   2. Bi-Monthly internal safety inspections. Respondent agrees that each Health & Safety Manager will continue to conduct random, unannounced safety inspections at their respective plant, at least twice per month. These inspections are not "wall to wall"; rather they are intended to be directed at different departments or areas within the facility, on an unannounced basis. The Health & Safety Manager will provide the plant United Steelworkers ("USW") Safety Coordinator with the opportunity to participate in the bi-monthly safety audit and will document the findings and provide a copy of the findings to the local USW. At least once per calendar quarter, an unannounced safety inspection shall be conducted by the safety manager, or other trained individual, from another facility. The findings will be posted at the facility and provided to the facility's Joint Safety Committee ("JSC") and to the corporate Director of Environment, Health & Safety. Facility management is required to respond to any recommendations within thirty (30) days. If a corrective measure cannot be implemented within thirty (30) days, the reason, and the interim protections taken and their date of implementation, shall be documented.
       
   3. Monthly JSC department audits. Respondent represents that department-specific JSC audits are conducted each month at the Covered Facilities on a scheduled, rolling basis throughout the year. Respondent agrees that the JSC members will continue to conduct these monthly department audits.
       
   4. Best practices tracking methodology. Respondent, in coordination with the JSCs, shall develop a common best practice for tracking health and safety items identified as a result of the inspections described in Paragraph VI.A.2 and Paragraph VI.A.3 for purposes of transparency and consistency in tracking and resolving identified safety items.
       
   5. Communications. Respondent agrees to review the use of in-plant safety bulletin boards and make improvements as needed, with the goal of having consistency of content among each of the covered facilities. The JSC shall have input into the content of the health and safety bulletin boards. The results of the monthly JSC department audits described in Paragraph VI.A.3 shall be posted on the bulletin boards. Responsibility for the boards shall be assigned and boards shall be placed in each large building where employees regularly work.
       
   6. Suggestion Box. Respondent agrees to establish a system for employees to notify Respondent's management, including the corporate Director- Environment, Health & Safety, of health and safety concerns, anonymously and without fear of reprisal. The system may include a suggestion box and shall include procedures to advise the employee, if known, of the status of implemented and proposed actions to address the concern or respond to the suggestion within thirty (30) days, and shall track the concerns or suggestions, management's responses and the actions taken (or the reason no action was taken).
       
   7. USW safety coordinators. Respondent agrees to review and as necessary improve the accessibility of the USW safety coordinators to the hourly work force by designating space and establishing time periods for each USW safety coordinator to meet with employees during work shifts within the plant to the extent not already in place.
       
   8. Newsletter. Respondent agrees to publish a quarterly fact sheet or newsletter on health and safety improvement initiatives and to make it available to all employees and a copy of the newsletter shall be mailed to the local union president of each covered facility.
       
2. Training
    
   1. USW training. On December 5-6, 2011, Respondent provided the two-day Joint Safety Committee training program offered by the USW- Tony Mazzocchi Center to all JSC members (which includes plant managers, USW Safety Coordinators, and salaried Health & Safety Managers).
       
   2. USW Pittsburgh Health and Safety Conference. Respondent has permitted each USW safety coordinator to attend the USW Health, Safety & Environment Conference scheduled for the week of March 5, 2012. Management will compensate each coordinator for time spent attending actual Conference activities and will reimburse for registration fees and reasonable travel, lodging, and food expenses associated with attending the Conference in accordance with applicable Republic travel and reimbursement policies.
       
   3. Fall hazard and LOTO training program.
      1. Respondent agrees to utilize the services of a third party consultant, who is qualified by education and training, to assist in the development and implementation of a training program specifically addressing fall hazards and the control of hazardous energy (lockout/tagout requirements ("LOTO")). In advance of the training, Respondent's written corporate fall hazard and LOTO procedures/programs will be reviewed and updated as needed.
          
      2. The fall hazard and LOTO training program shall be provided to current employees at the Canton Plant, Massillon Plant and Lackawanna Plant whose job responsibilities indicate the need for fall hazard and/or LOTO training (i.e., affected employees). Fall hazard training has already been provided for relevant Lorain employees during 2011; LOTO training for the Lorain Plant is addressed in Section VILA below.
          
      3. Respondent shall complete training at the covered facilities for all current affected employees on or before December 31,2012.
          
      4. Respondent also agrees to provide this training to new affected employees within ninety (90) days after the start of the employee's employment by Respondent. The training program shall also include refresher training for affected employees on an annual basis. The new employee training and annual refresher training may be provided by Republic qualified personnel.
          
   4. Competent Person Training. To the extent not received during 2011, Respondent shall provide general competent person training to all salaried employees with a plant supervisory role and each union safety coordinator within forty-five (45) days of the effective date of the Agreement or within ninety (90) days after the start of the employee's employment by Respondent. A copy of the curriculum for this training shall be provided to the OSHA Toledo Area Office.
       
   5. Republic-specific 1 0-hour health & safety training.
      1. Respondent agrees to develop and implement a Republic-specific ten (1 0)- hour health & safety training program addressing hazards specific to its operations. Respondent will provide this 1 0-hour training to current plant operations and maintenance employees within twelve (12) months of the Effective Date ofthis Agreement.
          
      2. A copy of the curriculum for this training shall be provided to the OSHA Toledo Area Office for approval. If OSHA does not object to Republic's proposed curriculum within fifteen (15) days, then the curriculum is deemed to be approved by OSHA. At the same time the curriculum is provided to OSHA, a copy of the curriculum will also be provided to the local union.
          
   6. Contractor training. The training programs described in Sections VI.B.3 and VI.B.5 will be offered to contractors who have (or are expected to have) a presence at any of Respondent's covered facilities for more than 30 days in a calendar year to the extent appropriate for their job responsibilities requiring work activities inside the plant. In addition, Respondent agrees to provide awareness level training (i.e., site-specific hazard recognition and facility familiarization including emergency procedures) to all contractors who work at any of Respondent's covered facilities to train and inform them about hazards they may encounter.
       
   7. Training Augments the Act's Requirements. None of the abatement measures described in this Agreement are intended to change Respondent's obligation to comply with the Act and its regulations. The training which Respondent has agreed to undertake as part of this Agreement and as described herein is not intended to replace any training requirements of the Act, but rather is intended to supplement and augment the training requirements of the Act.
       
3. Consultant/auditor - safety programs consultation and compliance audits.
    
   1. Third-Party Safety Consultant. Respondent agrees to retain a third-party consultant (or consultants) qualified by education, training and experience to consult m reviewing Respondent's health and safety programs and to otherwise assist Respondent in complying with the terms of this Agreement at Respondent's covered facilities.
       
   2. Third Party Agreement Auditor. Respondent also agrees to retain a third-party consultant qualified by education, training and experience to audit Respondent's compliance with the requirements of this Agreement.
       
      1. Audits. The Third Party Agreement Auditor shall conduct an audit at each covered facility at least once each year during the term of this Agreement as may be needed to determine whether the covered facilities are complying with the terms of this Agreement. The audit shall be completed within 60 days of the end of each 12 month period beginning with the effective date of this Agreement.
          
      2. Report of findings and recommendations. For each audit, the Third Party Agreement Auditor will prepare a report of the findings and recommendations for submission to the Director- Environment, Health & Safety. Respondent's Third Party Agreement Auditor shall provide the report to the Toledo Area OSHA Office and the Authorized Employee Representative at the same time that the report is provided to Respondent.
          
      3. Date response due. Respondent shall address any findings within thirty (30) days and implement feasible recommendations as soon as practical.
          
      4. d. Statement of Action. Within thirty (30) days after receipt of a report from the Third Party Agreement Auditor, Respondent will prepare a statement of the action ("Statement of Action") that it intends to take on any recommendation. If Respondent determines not to implement a recommendation, it shall state the reason and describe the actions it is taking or proposes to take to address the matter. If Respondent is unable to implement a feasible recommendation, the written plan will be included in the Statement of Action. Copies of the Statement of Action shall be provided to the Toledo Area OSHA Office and to the Authorized Employee Representative.
          
   3. Selection procedure.
      1. Respondent agrees to retain a qualified person or persons at Respondent's own cost to serve as Third-Party Safety Consultant and Third-Party Agreement Auditor as described above. Within thirty (30) days of the effective date of this Agreement, Respondent shall furnish the name and curriculum vitae of the person or persons whom Respondent proposes to retain as Third-Party Safety Consultant.
          
      2. At least ninety (90) days in advance of the end of the annual period to be covered by an annual review by the Third-Party Agreement Auditor, Respondent shall furnish the name and qualifications of the person or persons whom Respondent proposes to retain as Third-Party Agreement Auditor.
          
      3. OSHA has fifteen (15) days to object to the proposed Third-Party Safety Consultant or the Third-Party Agreement Auditor. If OSHA objects, Respondent shall continue the search until it locates a person to whom OSHA does not object. That person and/or his or her firm shall be retained by Respondent promptly following expiration of the fifteen (15) day period without objection. This process will not extend the abatement, certification, and document submission dates set forth in this Agreement.
          
4. Corporate Liaison.
   
   Respondent hereby designates the Director- Environment, Health & Safety (presently, Jon V. Lessard) as a direct liaison to OSHA and to the Authorized Employee Representative to address all issues related to employee safety and health, including, but not limited to, issues related to this Agreement.
    

VII.

Lorain-Specific Additional Abatement Measures

1. Two-hour LOTO training. In addition to the training described above, Respondent agrees to implement a two (2) hour LOTO training program for the Lorain Plant and to train all current affected employees in the program by December 31, 2012. If necessary, and if the program differs from the program discussed in Part VI, above, Respondent will provide annual refresher training.
    
2. Commitment to continuing education. Respondent agrees that it will remain committed to offering continuing education in health and safety for the salaried Health & Safety Manager and for the USW Safety Coordinator(s).
    
3. Lorain Bar Mill fall audit. A third party consultant, who may be the same person or firm selected as the Third Party Safety Consultant under Part VI above, shall conduct a fall hazard audit of the Lorain Bar Mill and prepare a report of the findings and recommendations. If a different person or firm is selected, Respondent shall use the procedures described in Paragraph VI.C.3, above, to select the person to conduct this audit.
    
4. Fall protection abatement plan: By September 1, 2012, Respondent will develop a written abatement plan which includes a schedule to abate fall hazards identified in the Lorain Bar Mill fall hazard audit. Within ten (1 0) days after developing this abatement plan, Respondent will submit the abatement plan to the Area Director of the Toledo Area OSHA Office. Respondent will submit quarterly progress reports on the abatement plan to the Area Director of the Toledo Area OSHA Office for a period of one year. Each report will describe the activities undertaken pursuant to the abatement plan for that quarter. The progress reports will be due on the following dates: December 1, 2012; March 1, 2013; June 1, 2013 and September 1, 2013.
    
5. Interim measures: Respondent will utilize all existing available fall protection equipment or take other interim measures pending completion of the abatement activities set forth in the abatement plan. Respondent acknowledges that any imminent hazards which are identified during the fall hazard safety audit, or otherwise, will require immediate abatement.
    
6. Additional Safety Representative. Respondent agrees that it will add a second union safety representative in the event that steel making and casting operations resume.
    

VIII.

Enforcement under Section ll(b) of the OSH Act

Respondent agrees that the terms of this Agreement shall be enforceable under Section 11 (b) of the OSH Act. Respondent agrees that it will not oppose the entry of such an order enforcing this Agreement and the final, amended citations by the U.S. Court of Appeals to which the Secretary of Labor presents this Agreement and supporting documents.

IX.

Failure to Abate

Failure to comply with this Agreement is grounds for notice of failure to abate under Section 10 of the OSH Act.

X.

Inspections

The parties agree that OSHA shall monitor progress and compliance with this Agreement in accordance with OSHA Directive CPL 2.00.152 (guidelines for administering corporate-wide settlement agreements). 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.

XI.

Costs

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.

XII.

Effective Date and Term of Agreement

This Agreement shall be effective on the date it becomes a final order of the OSHRC and its term shall be three (3) years from the time that this Agreement becomes a final order of the OSHRC.

XIV.

Notice and Communications

All notice and communications shall be to the following persons at the following addresses.

OSHA: Kim Nelson--Area Director, OSHA Toledo Area Office, 420 Madison Avenue, Suite 600, Toledo, Ohio 43604;

Respondent: Jon V. Lessard, CSP- Director of Environment, Health & Safety, Republic Steel, 2633 Eighth Street NE, Canton, OH 44704; and Wendlene M. Lavey, Squire Sanders (US) LLP, 4900 Key Tower,127 Public Square, Cleveland, Ohio 44114-1304;

Authorized Employee Representative: Steve Sallman, United Steelworkers, Health, Safety & Environment Department, Five Gateway Center, Pittsburgh, P A 15222.

XV.

Service and Posting

1. Respondent certifies that the names and addresses of all authorized employee representatives of affected employees are: USW Local 1104. Pursuant to OSHRC Rules 7 and 100, 29 CFR Parts 2200.7 and 2200.100, Respondent served a copy of this Agreement on the authorized employee representatives by postage prepaid first class mail, by electronic transmission, or personal delivery on Don Golden, President, USW Local 1104 Van A. Bittner Hall, 2501 Broadway, Lorain, Ohio 44052 on March 26, 2012
    
2. Respondent certifies that there are no other unions representing the affecte.d employees, except for those set forth above.
    
3. Pursuant to OSHRC Rules 7 and 100, 29 CFR Parts 2200.7 and 29 CFR 2200.100, Respondent served a copy of this Agreement on unrepresented employees by posting this document where the citation is required to be posted on March 27,2012
    

XVI.

No Alteration of Employee Rights

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

XVII.

Non-Admission

Except in proceedings or matters brought by or against the United States, neither this Settlement Agreement nor Respondent's consent to entry of a final order by the Commission pursuant to this Agreement, constitutes an admission by Respondent of violations of the OSH Act, 29 U.S.C. 651 e se ., regulations or standards promulgated thereunder, or the allegations contained withing the citations and notifications of penalties.

NOTICE

Any party (including any authorized employee representative of affected employees and any affected employee not represented by an authorized representative) who has any objection to the entry of an order as set forth should communicate such objections within ten (10) days ofthe posting of this Agreement to:

Patrick B. Augustine
Administrative Law Judge
Occupational Safety and Health
Review Commission
721 19th Street, Room 407
Denver, Colorado 80202-2517

A copy of said objection should also be sent to:

Patrick L. DePace
Trial Attorney
U.S. Department of Labor
Office of the Solicitor
881 Federal Office Building
1240 East Ninth Street
Cleveland, Ohio 44199

Wendlene M. Lavey
Squire Sanders (US) LLP
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114-1304

Steve Sallman
USW
Health, Safety & Environment Department
Five Gateway Center
Pittsburgh, P A 15222

1 On or about September 13, 2011, Republic Engineered Products, Inc. changed its name to Republic Steel. Back to Top