UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SETTLEMENT AGREEMENT

Complainant and Respondent submit the following settlement agreement pursuant to Rule 2200.100 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 time.

1. Complainant amends the Citation as follows:
 

2. By July 2,2012, Respondent agrees to implement, install andlor utilize one or more of the following means of abatement in its vehicles depending on the type of vehicle and the type of cargo as follows:

(i) not allow employees to ride in the cargo area and/or hopper seat in the cargo area of the vehicle; or

(ii) install and utilize a cargo netting system to adequately secure the cargo to prevent the cargo from shifting in the event of abrupt vehicle movement; or

(iii) install and utilize a cabinet, cage, or other type of repository container in the cargo area that contains/secures the cargo and prevents contact with the employee/hopper in the cargo area; or

(iv) install a full barrier wall between the cargo and the hopperlemployee in the cargo area.

(v) To the extent Respondent is unable to comply with the provisions of this Paragraph by July 2,2012 based on delay by the third party supplier, Respondent may request a modification of the abatement deadline.

3. By July 16,2012 or within 30 days of hire, Respondent will train or re-train employees regarding the hazards associated with unsecured cargo and how to effectively use the abatement systems referenced in Paragraph 2 supra (cargo netting system, cabinets, cages, any other types of repository containers, andor full barrier wall). Respondent will provide documentation regarding the training of affected employees to the Corpus Christi District Office by July 23,2012.

4. The abatement requirements as described in this Agreement are intended to apply to all of Respondent's existing and new worksites under federal OSHA jurisdiction but excludes those worksites 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"). Use of the word "worksites" hereinafter in this Agreement shall refer only to Respondent's worksites under federal jurisdiction.

5. Respondent promises to pay the $2,000.00 in assessed penalties no later than ten (10) days after the date of this Agreement, which shall be the date of the last signature hereto. Respondent shall tender payment to: OSHA, Corpus Christi Area District Office, 606 N. Carancahua, Suite 700, Corpus Christi, Texas 78401. The check shall be made payable to "U.S. Department of Labor - OSHA."

6. Respondent states that the specific condition described in the citation will be corrected as described in Paragraphs 2 and 3 supra.

7. 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 by July 23, 2012, by mailing a letter to OSHA, Corpus Christi Area District Office, 606 N. Carancahua, Suite 700, Corpus Christi, Texas 78401, 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.

8. The parties agree that the citation as amended and the specific abatement measures set forth in paragraph 3 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. Respondent agrees that failure to implement the abatement measures set forth in paragraph 3 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.

9. Respondent withdraws its notice of contest.

10. 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 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. 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 citations issued in this matter.

11. Respondent promises to permit Complainant access to the workplace at issue herein subsequent to the date fixed for abatement for the specific and limited purpose of determining if the conditions described in the citations at issue herein have been corrected.

12. This Agreement shall expire two (2) years from the date it becomes a final order of the OSHRC, Respondent expressly agrees that all duties and obligations relating to its specific abatement actions required herein shall be fully completed and implemented prior to the expiration of this Agreement. In the event Respondent fails to timely abate and comply with the terms of this Agreement, Respondent will not assert that this expiration date in any way affects Respondent's duty to fully comply with the Agreement.

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

14. Respondent certifies that a copy of this settlement agreement has been served upon the unrepresented affected employees in the manner set forth in Rule 2200.100 of the Commission's Rules of Procedure, by posting same on the 29th day of February, 2012.

15. Each party agrees to bear 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 APPROVING THIS SETTLEMENT AGREEMENT 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 STEPHEN J. SIMKO, JR., ADMINISTRATIVE LAW JUDGE, OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, 1924 BUILDING, SUITE 2R90,lOO ALABAMA STREET, S. W., ATLANTA, GA 30303-3 104 WITH COPIES TO COMPLAINANT AND RESPONDENT.