________________________________________
WILLIAM E. BROCK, Secretary of Labor, )
United States Department of Labor, )
)
Complainant, )
)
v. ) OSHRC Docket
) No. 87-95
)
SHELL OIL COMPANY, DEER PARK )
MANUFACTURING COMPLEX )
)
Respondent. )
)
OIL CHEMICAL AND ATOMIC WORKERS )
INTERNATIONAL UNION, LOCAL NO. 4-367, )
)
Authorized Employee )
Representative. )
________________________________________)
Complainant and Respondent have reached a full and complete settlement of the above-captioned matter presently pending before the Occupational Safety and Health Review Commission. The parties hereby agree as follows:
(a) Respondent is a corporation doing business as Shell Oil Company, Deer Park Manufacturing Complex, with a principal office and place of business at One Shell Plaza, Houston, Texas, and a workplace at Highway 225, Deer Park, Texas. Respondent, at the aforesaid workplace produces goods for sale outside Texas and utilizes goods, equipment, and materials shipped to there from outside the State of Texas. Respondent, therefore, is engaged in a business affecting commerce and is an employer within the meaning of Sections 3(5) and 3(6) of the Occupational Safety and Health Act of 1970 (hereinafter "OSHA" or the "Act"), 29 U.S.C. 652(5) and (6) (1982).
(b) The Occupational Safety and Health Review Commission (hereinafter the "Commission") has jurisdiction of this matter pursuant to Section 10(C) of the Act, 29 U.S.C. 659(c) (1982).
(c) As a result of an inspection by one or more authorized representatives of the Secretary from June 16, 1986, through October 7, 1986, the Secretary issued to respondent Citation 1 for serious OSHA violations together with a proposed penalty of $960, Citation 2 for other than serious OSHA violations with no proposed penalty, and Citation 3 for willful OSHA violations together with a proposed penalty of $244,000. Respondent received these citations on December 23, 1986. On January 14, 1987, a representative of the Secretary received from respondent a notice of contest of all items in each citation. The secretary duly transmitted this notice of contest to the Commission.
(d) Subsequently on March 11, 1987, the Secretary filed with the Commission his complaint initiating this action, and respondent filed a timely answer.
Respondent does not admit any wrongdoing or violation of the occupational safety and Health Act or any regulation or standard issued thereunder. By executing this agreement, the parties agree that the alleged violations were not the result of intentional or knowing disregard for the requirements of the Act, regulations or standards thereunder, or BLS recordkeeping guidelines. This agreement is made in order to prevent further litigation and expense to both the government and respondent and to resolve differences regarding compliance with the Act. The parties agree that this stipulation and settlement Agreement, and the citations as amended thereby, will constitute a final order of the commission.
(a) Complainant hereby agrees to amend Citation 2, item 1 and Citation 3 to state. as the type of violation, "a violation of Section 17 of the Act"
(b) Complainant hereby agrees to amend Citation 2, item 1 and Citation 3 to include a total proposed penalty of $103,000 for the alleged recordkeeping violations.
(c) Complainant hereby agrees to amend Citation 1, item 1 by deleting the standard cited, 29 CFR 1910.134(b) (8), and replacing same with section 5(a) (1) of the Act. Complainant also agrees to amend the proposed penalty for Citation 1, item 1, to two hundred forty dollars ($240). Respondent agrees to abate the cited condition by supplying its employees with ear jacks to be attached to the sound alarm on each employee's personal hydrogen sulfide monitor.
(d) Complainant hereby agrees to amend the proposed penalty for Citation 1, item 2, to one hundred and twenty dollars ($120). Respondent agrees to abate. and has abated, the cited condition by installing the safety shower which was installed on August 22, 1986 in the loading rack area of the sulfur recovery unit.
(e) Complainant hereby agrees to reclassify Citation 1, item 3, as other than serious and to amend the proposed penalty to one hundred and twenty dollars ($120). Respondent agrees to abate, and has abated, the cited condition by issuing a Material Safety Data Sheet (hereinafter "MSDS") for its product VCM Light Ends (Shell Code 32298), corrected to state that carbon tetrachloride is listed in National Toxicology Program ("NTP") , Annual Report on Carcinogens (latest edition) and is listed as a potential carcinogen by OSHA and in International Agency for Research on Cancer ("IARC"),Monographs (latest edition).
(f) Complainant agrees to accept respondent's revised MSDS, dated January 2, 1987, for its product VCM Light Ends (Shell Code 32298) as abatement of the condition cited in Citation 2, item 4(a)
(g) Complainant agrees to withdraw Citation 2, item 4 (b)
(h) Complainant agrees to withdraw Citation 2, item 4(c)
(i) Complainant agrees to withdraw Citation 2, item 5.
(a) Respondent agrees to pay to the U.S. Department of Labor $103,480 within two weeks of execution of this agreement.
(b) Respondent represents that the above-noted alleged violations at its Deer Park Manufacturing Complex have been corrected and that the 103 injuries at issue and not heretofore recorded will be recorded on the OSHA Log No. 200. Respondent similarly agrees that it has reviewed its recordkeeping practices at all other geographic locations covered by the Act under section 4(a) of the Act and assures that its records, going back to January 1, 1984, are currently in compliance with the Act, the recordkeeping regulations at 29 CFR Part 1904, the OSHA No. 200 Log, and the Revised BLS Recordkeeping Guidelines for Occupational Injuries and Illnesses, effective April 1986.
(c) Respondent agrees to maintain hereafter its injury and illness records nationwide in accord with the Act, the recordkeeping regulations at 29 CFR Part 1904, the OSHA No. 200 Log, and the Revised BLS Recordkeeping Guidelines for occupational Injuries and Illnesses, effective April 1986, and as they may from time to time be revised.
(d) Respondent agrees to and has provided the Secretary with a report indicating all programmatic changes instituted corporate-wide and/or at individual plants to implement paragraphs V(b) and (c). The report includes all written and other materials disseminated by Shell or any agent thereof intended to provide instruction or guidance to its plant recordkeepers and safety personnel in their recordkeeping responsibilities under the Act.
(e) Respondent agrees that the actions noted in paragraphs V(b) and (d), will be entirely accomplished within six months of the date of execution of this agreement.
(f) Respondent agrees to withdraw its notice of contest filed in response to the above-mentioned citations as amended herein.
Respondent certifies that it has mailed, postage prepaid, a copy of this Stipulation and Settlement Agreement to the authorized employee representative in this case, Local No. 4-367, Oil, Chemical and Atomic Workers International Union, c/o Alan L. Barnes, Secretary-Treasurer, 311 Tatar Street, Pasadena, Texas 77406. in accordance with OSHRC Rule 2200.7. Respondent also certifies that it has posted a copy of this Stipulation and Settlement Agreement at its Deer Park Manufacturing Complex, Deer Park, Texas, in accordance with OSHRC Rules 2200.7(g) and 2200.100(c)
Each party agrees to bear all of its own attorneys fees, costs, and expenses arising out of and incidental to the instant matter.
WHEREFORE, the parties agree that under the above-noted conditions this matter, docketed before the Commission as Docket No. 87-97.-is hereby settled.
FOR COMPLAINANT: FOR RESPONDENT:
GEORGE R. SALEM
Solicitor of Labor
CYNTHIA L. ATTWOOD
DAVID H. FELDMAN BRYNN F. AURELIUS
Associate Solicitors Attorney
Legal Department
DALY D. E. TEMCHINE Shell Oil Company
Deputy Associate Solicitor One Shell Plaza
for Special Litigation P.O. Box 2463
Houston, Texas 77252
December 18, 1987
PETER B. DOLAN Date
WAYNE R. BERRY
Attorneys
U.S. Department of Labor
200 Constitution Ave., NW
Washington, D.C. 20210
17 December 1987
Date
Pursuant to OSHRC Rule 100(b), 29 C.F.R. 2200.100(b), the authorized employee representative, Local 4-367, OCAW, which has elected party status in this case, does not object to any abatement period set forth in this Stipulation and Settlement Agreement.
By:
ALAN L. BARNES
Secretary-Treasurer
Local 4-367
OCAW
311 Tatar Street
Pasadena, Texas 77506
Date: December 18,1987
_____________________________________________
WILLIAM E. BROCK, Secretary of Labor, )
United States Department of Labor, )
Complainant, )
)
V. )
)
SHELL OIL COMPANY, DEER PARK ) OSHRC Docket
MANUFACTURING COMPLEX ) No. 87-95
)
)
Respondent. )
)
)
OIL CHEMICAL AND ATOMIC WORKERS )
INTERNATIONAL UNION, LOCAL NO. 4-367, )
)
Authorized Employee )
Representative )
_____________________________________________)
The parties have submitted a Stipulation and 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 from affected employees. The Stipulation and Settlement Agreement is approved and incorporated herein by reference.
So ORDERED.
Administrative Law Judge
Date:_________________