____________________________________________
WILLIAM E. BROCK, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, ) OSHRC DOCKET
) No. 86-509
V. )
)
UNION CARBIDE AGRICULTURAL PRODUCTS )
COMPANY, INC., A wholly-owned )
subsidiary of UNION CARBIDE CORPORATION, )
AND ITS SUCCESSORS, )
)
Respondent, )
)
and )
)
INTERNATIONAL ASSOCIATION OF MACHINISTS )
AND AEROSPACE WORKERS, LOCAL NO. 656, )
)
Authorized )
Employee Representative. )
____________________________________________)
WILLIAM E. BROCK, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, ) OSHRC DOCKET
)
V. ) No. 86-1391
)
UNION CARBIDE CORPORATION, SPECIALTY )
CHEMICALS DIVISION, )
)
Respondent. )
____________________________________________)
The parties, UNION CARBIDE AGRICULTURAL PRODUCTS COMPANY, INC. ("UCAPCo"), WILLIAM E. BROCK, SECRETARY OF LABOR, the United States Department of Labor ("complainant"), and UNION CARBIDE CORPORATION ("UCC"), by their undersigned counsel, and the INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL NO. 656 ("Local 656"), by its undersigned representative, have reached a full and complete settlement of OSHRC Docket Nos. 86-509 and 86-1391, respectively, pursuant to the Rule at 29 C.F.R. 2200.100 of the United States Occupational Safety and Health Review Commission's ("Commission") Rules of procedure. Accordingly, the parties state as follows:
1. The Commission has jurisdiction of these matters pursuant to the Occupational Safety and Health Act of 1970. 29 U.S.C. 651-678, at Section 10(c), 29 U.S.C. 659(c).
2. Complainant amends the Citations and Complaints in OSHRC Docket Nos. 86-509 and 86-1391 as follows:
A. OSHRC DOCKET NO. 86-509
(1) Citation No. 1
The total penalty for Citation No. 1 (Item Nos. 1,2,3,4,5,6,7, 8a and 8b) is amended to $201,885.00.
(2) Citation No. 2
a. Citation No. 2 is amended by withdrawing the following items: Item Nos. 1(a, b, c, d, h, i and j); 2(a through e); 4; 5(a, c, and d); 6(a through c); 7(b, c, d, and e); 8(a through e); 12a; 13a(a and b); 16b; 17(a); 18(a); 12a; 21d; and 21g.
b. Citation No. 2, Item No. 1(e) is amended by changing the abatement date from May 30, 1986, to December 31, 1987.
c. Citation No. 2, Item Nos. 1(f), 1(g), and 5(b) are amended to include "fire and/or explosion".
d. Citation No. 2, Item No. 7(a) is amended (i) to include "fire and/or explosion"; (ii) to delete the words "and the 416 stainless steel impeller nuts"; and (iii) to change the abatement date to November 2, 1987.
e. Citation No. 2, Item Nos. 13c(a and b) and 13d(a) are amended by changing the abatement date from May 30, 1986. to August 31, 1987.
f. Citation No. 2, Item Nos. 21e(a, b, c, d, and e) are amended by changing the abatement date from April 30, 1986. to August 31, 1987.
g. Citation No. 2, Item Nos. 23(a) and (b) are amended by changing the abatement date from April 18, 1986, to August 31, 1987.
h. The total penalty for Citation No. 2 is amended to $37,375.00.
(3) Citation No. 3
a. Citation No. 3 is amended by withdrawing the following items: Item Nos. 2; 3; 5a(a); 5b(a) and b); 5c(a and b); 7b(a); 7c(a); 7d(a); 7e(a); 7f(a); 8a(a and b); 13(a); 14(a); and 15(a).
b. The total penalty for Citation No. 3 is amended to $3,350.00.
(4) The total proposed penalty for OSHRC Docket No. 86-509 is amended to $242,610.00.
B. OSHRC DOCKET NO. 86-1391
(1) Citation No.1, item Nos. 1-7 are amended for penalty purposes only by placing the 312 alleged instances of violation in these items into 104 groups of three instances each. Item Nos. 8 and 9 of Citation No. 1 are not changed by this Agreement.
(2) The total proposed penalty for OSHRC Docket No. 86-1391 is amended to $165,890.00.
3. UCC will undertake an examination of relevant records in UCC's possession to ensure that the OSHA required records of UCC's current facilities covered by the Act. going back to January 1, 1983, are in compliance with the Act. the regulations at 29 C.F.R. part 1904. the OSHA Form No. 200 Log, and the Revised Recordkeeping Guidelines issued by the United States Department of Labor, Bureau of Labor Statistics in April 1986 ("1986 BLS Guidelines"). Complainant agrees that, during this examination period (see paragraph 9) and for any item placed appropriately on the OSHA Form No. 200 Log (including the completion of the OSHA Form No. 101) in compliance with this paragraph either during or prior to this examination. UCC will not be cited for failing to comply with the Act's recordkeeping requirements.
4. UCAPCo will undertake an examination of relevant records in UCAPCo's possession to ensure that the OSHA required records of UCAPCo's current facilities covered by the Act, going back to January 1, 1983, are in compliance with the Act, the regulations at 29 C.F.R. Part 1904, the OSHA Form No. 200 Log, and the 1986 BLS Guidelines. Complainant agrees that during this examination period (see paragraph 9) and for any item placed appropriately on the OSHA Form No. 200 Log (including the completion of the OSHA Form No. 101) in compliance with this paragraph either during or prior to this examination, UCAPCo will not be cited for allegedly failing to comply with the Act's recordkeeping requirements.
5. UCC agrees to maintain, on a corporate-wide basis, its occupational injury and illness recordkeeping practices in accordance with the Act, the recordkeeping regulations at 29 C.F.R. Part 1904, and the 1986 BLS Guidelines, as the same may be amended from time to time.
6. UCAPCo agrees to maintain the occupational injury and illness recordkeeping practices at its Plant located in Institute, West Virginia, in accordance with the Act, the recordkeeping regulations at 29 C.F.R. Part 1904, and the 1986 BLS Guidelines, as the same may be amended from time to time.
7. UCC voluntarily and outside the scope of abatement will institute a corporate-wide training program for OSHA recordkeeping to train those of its employees having responsibility for OSHA recordkeeping at UCC's current facilities covered by the Act. The training program will be conducted by individuals knowledgeable in OSHA's recordkeeping requirements. The training program will cover the regulations at 29 C.F.R. Part 1904, the OSHA Form No. 200 Log as well as the 1986 BLS Guidelines.
8. UCC voluntarily and outside the scope of abatement will include as part of its current corporate audit program a review of the OSHA recordkeeping practices at its current facilities covered by the Act. As part of this program, periodic audits of OSHA recordkeeping practices will be conducted on a representative basis by individuals knowledgeable in OSHA recordkeeping requirements.
9. The actions discussed in paragraphs 3, 4, 7, and 8, will be accomplished within six months of the commission's final order in these cases. The parties will confer with the intent of achieving agreement on some reasonable extension or extensions of this six-month period. if such should become necessary. A report describing the activities that have taken place pursuant to paragraphs 3, 7, and 8 will be provided by UCC to Complainant. A report describing the activities that have taken place pursuant to paragraph 4 will be provided by UCAPCo to Complainant. These reports will be provided to Complainant within a reasonable amount of time after the conclusion of the six-month period described in this paragraph or any extension thereof.
10. UCAPCo will abate the alleged violations in Citation No.1, Item Nos. 2, 3, 4, 5, 6. and 7, and citation No. 3. Item No. 1 in OSHRC Docket No. 86-509 by adding the alleged instances of failure to record listed in these items to its OSHA Form No. 200 Log for the years 1983, 1984, and 1985; by making the changes to its OSHA Form No. 101 equivalent noted in Citation No. 1, Item No. 8a in OSHRC Docket No. 86-509; and by completing a supplementary record for the cases noted in citation No. 1, Item No. 8b in OSHRC Docket No. 86-509. UCC will abate the alleged violations in OSHRC Docket No. 86-1391 by adding the alleged instances of failure to record to its OSHA Form No. 200 Log for the years 1983, 1984, 1985, and 1986. These abatement measures shall be completed within six months from the date of commission's final order in these cases.
11. UCAPCO states that the other alleged violations at issue in the citations in OSHRC Docket No. 86-509 have been or will be abated within the appropriate abatement periods.
12. With regard to Citation No. 2, Item No. 1(e) in OSHRC Docket No. 86-509, abatement will be accomplished by installing hydraulic relief in the chlorine tank line between the power operated valve and the valve on top of the chlorine storage tank most distant (approximately 100 feet) from its power operated valve.
13. With regard to Citation No. 2, item No. 1(f) in OSHRC Docket No. 86-509, abatement has been accomplished by sealing open (car seal) the block valve on the north condenser in the Phosgene Unit.
14. With regard to Citation No. 2. Item No. 1(g) in OSHRC Docket No. 86-509, the alleged inaccuracies in the Reliability Maintenance list in the Phosgene Unit, as noted in the description of the alleged violation as well as in complainant's inspection report, in due course have been included on the list. Complainant acknowledges that the Institute Plant's "T" number identification and data retrieval system addresses Complainant's concern with regard to ASME data plates.
15. Complainant has been informed concerning voluntary changes made outside of the scope of abatement which have been or will be made to the Units at issue in OSHRC Docket No. 86-509 in order to further enhance employee safety and health.
16. With regard to the conditions at issue in citation No. 2. item 12c in OSHRC Docket No. 86-509, the parties agree that abatement may be accomplished by extending the access ladder 36 inches above the top rail of the guardrail surrounding the work platform.
17. With regard to Citation No. 2, Item Nos. 13a(a and b) as well as Citation No. 3, Item Nos. 5a(a), 5b(a and b), and 5c(a and b) in OSHRC Docket No. 86-509, when the ladders at issue are replaced, they will be replaced with ladders meeting all of the then-existing requirements for such ladders set forth in the standard at 29 C.F.R. 1910.27 or the then-applicable standard.
18. With regard to citation No. 2. Item Nos. 13c(a and b) and 13d(a) in OSHRC Docket No. 86-509, the parties agree that the conditions at issue may be abated by the fabrication and installation of 6 additional horizontal hoops on each of the ladder cages at issue.
19. With regard to Citation No. 2. Item No. 14(a) in OSHRC Docket No. 86-509, the parties agree that the condition at issue may be abated by the installation of a ladder safety device in accordance with the standard at 29 C.F.R. 1910.27(d)(5) in lieu of constructing additional landing platforms.
20. The parties agree that Citation No. 2. Item Nos. 20(a. c. d. and e) are directed only to those situations having the following characteristics (1)) a number of employees are assigned to a task in an area other than ground level where emergency respiratory equipment may be needed for potential exposure to acutely toxic chemicals; (2) the assigned task is expected to take a substantial amount of time to complete (in excess of one hour); and (3) the number of already existing emergency respiratory devices conveniently located in the area of the assigned task is not sufficient to provide an emergency respiratory device to each of the assigned employees. Under such circumstances, additional emergency respiratory devices will be provided to the assigned work area during the time that the work is in progress so that each assigned employee will have access to a portable breathing air device in the event of an emergency.
21. With regard to Citation No. 2. Item No. 21f(a) in OSHRC Docket No. 86-509, the parties agree that the required respirator inspection (facepiece, headbands, valves, connecting tube, etc.) may be conducted while the respirator remains in its clear, sanitary covering.
22. With regard to the condition at issue in Citation No. 2. Item No. 21g in OSHRC Docket No. 86-509. the respirator inspection protocol (i.e., the items to be inspected on each respirator) will be added to the forms used to perform respirator inspections, and employees performing such inspections will "check off" or otherwise indicate those respirator items that need correction, if any.
23. With regard to Citation No. 2, Item No. 22(a) in OSHRC Docket No. 86-509, the parties agree that the condition will be abated by designating the area at issue as a "monogoggle area".
24. With regard to Citation No. 2, Item Nos. 23(a and b) in OSHRC Docket No. 86-509, the parties agree that the condition at issue may be abated by installing continuous combustible gas monitors with alarms on the two powered industrial trucks at issue. These monitors will be set to alarm at 10% of the lower explosion limit for the substance involved.
25. With regard to the condition at issue in Citation No. 3, Item No. 8a(b) in OSHRC Docket No. 86-509, a sign will be posted at the entrance of the plant to instruct employees to avoid walking under overhead structures when entering and leaving their assigned units. With regard to the Rigid Polyols Unit, UCC will require employees who are not wearing hard hat protection to enter and leave the Unit using the front or North entrance.
26. Within thirty days of the Commission's final order in these cases. UCAPCo promises to pay the proposed penalty of $242,610.00 for the citations at issue in OSHRC Docket No. 86-509, as amended above, and UCC promises to pay the proposed penalty of $165,890.00 for the citation at issue in OSHRC Docket No. 86-1391, as amended above, payment shall be made by two separate certified checks made payable to "OSHA - Labor".
27. UCAPCo and UCC certify that the original Notices of Contest as well as all pleadings and other filings in these separate matters, including a copy of this Agreement, have been served on Local No. 656 and on other affected employees not represented by Local No.656 in accordance with the commission Rule at 29 C.F.R. 2200.7.
28. UCAPCo and UCC specifically deny any and all alleged violations of the Act. Nothing in this Agreement, including the Agreement itself, the execution thereof, as well as any final order, is an admission, nor is it to be construed as an admission, of any fact or violation of the Act by UCAPCo or UCC, other than in any subsequent civil proceeding brought by the Complainant under the Act pertaining to the South Charleston and Institute facilities. The parties further understand and stipulate that this paragraph precludes any use of any information as described in this paragraph as an admission in any criminal proceedings commenced by the United States. This Agreement is being entered into solely to avoid further litigation and expense to the parties.
29. The parties recognize that, although UCAPCo and UCC have not withdrawn their Notices of Contest and do not admit any violation of the Act, the citations and penalties, as amended by this Agreement, will become final orders of the commission under this Agreement. There are no items in either OSHRC Docket No. 86-509 or OSHRC Docket No. 86-1391 that remain to be decided by the commission.
30. Included with this Agreement is a draft order for use by the commission, and the parties hereby consent to the entry of this draft order so that the litigation of these separate matters may be brought to an end.
31. Finally, the parties agree to bear their own attorneys' fees, costs, and other expenses that have been incurred in connection with any stage of these proceedings up to and including the filing of this Agreement.
Respectfully submitted, this 24th day of July 1987.
Robert C. Gombar George R. Salem
Solicitor of Labor
JONES, DAY, REAVIS & POGUE
Metropolitan Square
1450 G Street, N.W.
Washington, DC 20005-2088
(202) 879-3939
Counsel for Respondents.
UNION CARBIDE AGRICULTURAL Marshall H. Harris
PRODUCTS COMPANY, INC.; and Regional Solicitor
UNION CARBIDE CORPORATION.
SPECIALTY CHEMICALS DIVISION
Betty-Lynn White Matthew J. Rieder
Counsel Regional Counsel for OSHA
and MSHA
UNION CARBIDE CORPORATION
Law Department UNITED STATES DEPARTMENT
Old Ridgebury Road OF LABOR
Room E3-253 Room 14480, Gateway
Danbury, Connecticut 06817-0001 Building
(203) 794-6379 3535 Market Street
Philadelphia, PA
William C. Heck 19104
(215) 596-5181
KELLEY, DRYE & WARREN Counsel for Complainant,
101 Park Avenue WILLIAM E. BROCK,
New York, New York 10178 SECRETARY OF LABOR
(212) 808-7817
Counsel for UNION
CARBIDE CORPORATION
Pursuant to the Commission Rule
at 29 C.F.R. 2200.100(b), Local
No. 656 states that it raises no
objection to the terms of this
Agreement concerning the matters
at issue in OSHRC Docket No.
86-509.
Joe Gresham
Business Representative
Representative for Local No.
656 (Authorized Employee
Representative, OSHRC Docket
No. 86-509 only).
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, LOCAL NO. 656
801 Main Avenue
Nitro, West Virginia 25134
(304) 755-4308
____________________________________________
WILLIAM E. BROCK, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant. ) OSHRC DOCKET
) No. 86-509
)
UNION CARBIDE AGRICULTURAL PRODUCTS )
COMPANY, INC., A wholly-owned )
subsidiary of UNION CARBIDE CORPORATION, )
AND ITS SUCCESSORS, )
)
Respondent, )
)
and )
)
INTERNATIONAL ASSOCIATION OF MACHINISTS )
AND AEROSPACE WORKERS, LOCAL NO. 656, )
)
Authorized )
Employee Representative. )
)
WILLIAM E. BROCK, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, ) OSHRC DOCKET
)
v. ) No. 86-1391
)
UNION CARBIDE CORPORATION, SPECIALTY )
CHEMICALS DIVISION, )
)
Respondent. )
____________________________________________)
Respondent in OSHRC Docket No. 86-509. by a letter dated April 21, 1986. contested three citations issued to it by Complainant on April 1, 1986. Respondent in OSHRC Docket No. 86-509 also contested the penalties proposed by Complainant for those three citations.
Respondent in OSHRC Docket No. 86-1391, by a letter dated October 7, 1986, contested one citation issued to it by Complainant on September 16, 1986. Respondent in OSHRC Docket No. 86-1391 also contested the penalty proposed by Complainant for that one citation.
An executed Settlement Agreement addressing each of these cases has been received from the parties, and this Agreement addresses all matters at issue between the parties regarding these separate cases. The Agreement having been read and considered it is
ORDERED:
(1) That the terms of the Settlement Agreement are approved and incorporated as part of this Order; and
(2) That this Order, pursuant to Section 12(j) of the Act, 29 U.S.C. 661(j), will become the final order of the Commission.
Dated this_____________day of________________, 1987.
JAMES D. BURROUGHS