_____________________________________________
WILLIAM E. BROCK, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, ) OSHRC DOCKET
)
v. ) No. 86-1642
)
UNION CARBIDE CORPORATION, LINDE )
DIVISION (North Royalton, Ohio), )
)
Respondent. )
_____________________________________________)
WILLIAM E. BROCK. SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, ) OSHRC DOCKET
)
v. ) No. 87-350
)
)
UNION CARBIDE CORPORATION, LINDE )
DIVISION (Buffalo, New York) )
)
Respondent. )
_____________________________________________)
WILLIAM E. BROCK, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, ) OSHRC DOCKET
)
v. ) No. 86-1384
)
UNION CARBIDE CORPORATION, LINDE )
DIVISION (West Mifflin, Pa.), )
)
Respondent. )
)
and )
)
INTERNATIONAL CHEMICAL WORKERS UNION, )
LOCAL 211, )
Authorized Employee )
Representative )
_____________________________________________)
WILLIAM E. BROCK, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, ) OSHRC DOCKET
)
v. ) No. 86-1743
)
UNION CARBIDE CORPORATION, LINDE )
DIVISION (Altoona, Pennsylvania), )
)
Respondent. )
_____________________________________________)
The parties, Union Carbide Corporation, Linde Division ("Linde"), and William E. Brock, Secretary of Labor, United States Department of Labor ("Complainant"), by their undersigned counsel, have reached full and complete settlement in each of the above-captioned matters currently pending before the Occupational Safety and Health Review Commission (hereinafter the "Commission"). The parties hereby agree as follows:
(a) The Commission has jurisdiction of these matters pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590: 29 U.S.C. 651, et seq.) (hereinafter the "Act").
(b) Linde maintains its principal office and place of business at Old Ridgebury Road, Danbury. Connecticut, and operates several workplaces throughout the United States engaged in the production and sale of compressed gases.
(a) An inspection of Linde's above-identified worksite was conducted by compliance officers of the Occupational Safety and Health Administration ("OSHA"), Cleveland Area Office, from April 16, 1986 to October 23, 1986. As a result of this inspection, Linde was issued on October 23, 1986, willful, serious and other than serious citations and notification of penalty assessing a total proposed penalty of $3,070.00. The citations allege a violation of Section 5(a)(1) of the Act, violations of regulations promulgated pursuant to Section 5(a)(2) of the Act, and violations of recordkeeping requirements set forth in 29 C.F.R. 1904.2(a). The citations additionally ordered the abatement of the alleged violations.
(b) Linde filed a timely notice of contest to the citations and proposed penalties with the Secretary of Labor. The notice of contest was duly transmitted to the Commission.
Citation 1, Item 1
Complainant amends the penalty proposed for this item to $270. Linde states that the condition referred to in this item has been corrected by removal of the identified manifold-B valves.
Citation 1, Item 2
Complainant withdraws this item. Linde states, however, that the safety relief valve referred to in this item was inspected and found to be in proper operating condition.
Citation 1, Item 3(a)
Complainant withdraws this subitem.
Citation 1, Item 3(b)
Complainant withdraws this subitem without prejudice. Within sixty (60) days of the execution of this Agreement, Linde shall supply the Area Director of the Cleveland Area Office of OSHA with documentation to demonstrate that the condition referred to in this subitem complies with current NFPA standards and would constitute a de minimis condition under 9 (a) of the Act. The Area Director shall review Linde's submission and will confer with Linde in the event any additional information or clarification is necessary.
In the event the Area Director, after reviewing Linde's submission and any additional information and clarifications supplied, does not agree with Linde's contention that the condition described in the subitem is de minimis, the Area Director retains the right to reinspect Linde's facility and, if warranted, to issue appropriate citations.
Citation 1, Item 4(a) Citation 1, Item 4(b)
Complainant amends the penalty Proposed for this item to $340. Should Linde elect to maintain respirators for use in dangerous atmospheres that may be encountered in the workplace, it will assure that:
(a) All employees who are required to use respirators will be appropriately trained in use of the respirators in normal conditions and in emergencies;
(b) The respirators will be properly inspected and maintained;
(c) Appropriate records of respirator inspections will be maintained, including an inventory of the parts inspected; and
(d) Standby personnel will be provided with an appropriate respirator for rescue purposes. (Applicable if Linde elects to use S.C.B.A.'s [self contained breathing apparatuses] at its workplace).
Citation 1, Item 5
Complainant amends the penalty proposed for this item to $405.
Citation 2, Item 1
Complainant reduces the classification of this item from willful to other than serious and amends the penalty proposed for this item to $500.
Citation 3, Item 1
Linde states that the conditions referred to in this item which created the potential for dermal exposure to acetone no longer exist. Accordingly, the use of gloves impervious to acetone is not necessary at this time.
Citation 3, Item 2
1. This item charges that Linde violated 29 C.F.R. 1910.1200(f)(1)(ii).
2. The parties agree that the issue presented in Citation 3, Item 2, is whether Linde's acetylene cylinder labels did not contain "appropriate hazard warnings" because they failed to "address potential simple asphyxiant hazards."
3. The issue presented in Brock v. Union Carbide Corporation, Linde Division, OSHRC Docket No. 86-740, is identical to the issue presented by Item 2 of Citation 3 in this proceeding.
4. That issue was resolved in the Secretary's favor by Judge Burroughs. However, Linde filed a petition for discretionary review, which has been granted. The parties agree to be bound on this issue by the final decision, after exhaustion of all administrative and judicial appeals, in Brock v. Union Carbide Corporation, Linde Division, OSHRC Docket No. 86-740.
(a) An inspection of Linde's above-identified worksite was conducted by OSHA compliance officers of the Bowmansville, New York Area Office from September 17, 1986 to October 22, 1986. As a result of this inspection, Linde was issued on February 2, 1987, serious and other than serious citations and notification of penalty assessing a total proposed penalty of $1,680.00. The citations allege a violation of Section 5(a)(1) of the Act, violations of regulations promulgated pursuant to Section 5(a)(2) of the Act, and violations of recordkeeping requirements set forth in 29 C.F.R. 1904.2(a). The citations additionally ordered the abatement of the alleged violations.
(b) Linde filed a timely notice of contest to the citations and proposed penalties with the Secretary of Labor. The notice of contest was duly transmitted to the Commission.
Citation 1, Item 1
Complainant amends the penalty proposed for this item to $420. Linde states that it will abate the condition referred to in this item by providing a continuous flammable gas monitoring and alarm system interconnected to an emergency ventilation system of sufficient capacity to keep the concentration of flammable gas below the lower explosive limit. Complainant amends the abatement date to 120 days after the signing of this Agreement.
Citation 1, Item 2
Complainant amends this item by deleting the words "and body" from the instant description and by amending the penalty to $160. Linde agrees to correct the condition referred to in this item by installing an eye wash in the room adjacent to the carbide charging area.
Citation 1, Item 3
Complainant amends the penalty proposed for this item to $365. Linde states that the condition-has been corrected by the removal of acetylene manifold and pipes from the area referred to in the item, thus making the area a "non-classified area".
Citation 1, Item 4
Complainant amends the penalty proposed for this item to $210. Complainant withdraws instance (a) 7 of Item 4 without prejudice.
Within sixty (60) days of the signing of this Agreement, Linde will provide the Area Director of the Bowmansville Area Office of OSHA with documentation to demonstrate the appropriate classification, pursuant to 29 C.F.R. 1910.307(a), of the area where the equipment in this instance is located and the suitability of the equipment for this location. The Area Director shall review Linde's submission and will confer with Linde in the event additional information or clarification is necessary.
In the event the Area Director, after reviewing Linde's submission and any additional information and clarifications supplied, does not agree with Linde's contention that the cited equipment is suitable for the location in question, the Area Director retains the right to reinspect Linde's facility and, if warranted, to issue appropriate citations.
Citation 2, Item 2
Linde has corrected the cited condition by providing employees mink oil to waterproof their footwear.
Citation 2. Item 3
1. This item charges that Linde violated 29 C.F.R. 1910.1200(f)(1)(ii).
2. The parties agree that the issue presented in Citation 3, Item 2, is whether Linde's acetylene cylinder labels did not contain "appropriate hazard warnings" because they failed to "address potential simple asphyxiant hazards."
3. The issue presented in Brock v. Union Carbide Corporation, Linde Division, OSHRC Docket No. 86-740, is identical to the issue presented by Item 2 of Citation 3 in this proceeding.
4. That issue was resolved in the Secretary's favor by Judge Burroughs. However, Linde filed a petition for discretionary review, which has been granted. The parties agree to be bound on this issue by the final decision, after exhaustion of all administrative and judicial appeals, in Brock v. Union Carbide Corporation, Linde Division, OSHRC Docket No. 86-740.
(a) An inspection of Linde's above-identified worksite was conducted by OSHA compliance officers of the Pittsburgh Area Office from February 26, 1986 to May 2, 1986. As a result of this inspection, Linde was issued on September 16, 1986, willful, serious and other than serious citations and notification of penalty assessing a total proposed penalty of $15,660.00. The citations allege a violation of Section 5(a)(1) of the Act, violations of regulations promulgated pursuant to Section 5(a)(2) of the Act, and violations of recordkeeping requirements set forth in 29 C.F.R. 1904.2(a). The citations additionally ordered the abatement of the alleged violations.
(b) Linde filed a timely notice of contest to the citations and proposed penalties with the Secretary of Labor. The notice of contest was duly transmitted to the Commission.
Citation 1, Item 1
Complainant amends the proposed penalty to $750. Linde agrees to abate this item as follows:
1. Linde agrees to blow down oxygen cylinders in an area separate from the painting area so as to prevent the possibility of oxygen-enrichment of the painting area;
2. Employees are not, and will not be, permitted to smoke in the oxygen blow down area and are not, and will not be, permitted to smoke or be in" a smoking area for thirty (30) minutes after blowing down oxygen cylinders.
3. Linde will amend its safety manual to include the measures specified in 1 and 2, supra.
4. Linde will instruct its employees regarding the MSDS's on Spatz enamel paint and oxygen and will emphasize the increased combustibility of clothing if it becomes oxygen-enriched.
Citation 1, Item 2a(a)
Complainant withdraws this item. Linde agrees to continue to keep surfaces in the carbide room swept as free as is practicable of calcium carbide dust accumulations.
Citation 1, Item 2a(b)
Complainant withdraws this item. Linde agrees to continue to minimize to the extent practicable chemical accumulations on the ground near the acetone tanks and employee exposure to any accumulations which may occur.
Citation 1, Items 2b(a) and 2b(b)
Complainant amends the proposed penalty for these parts of Item 2 to $240, with the parties' understanding that the cited conditions resulted from leaks.
Citation 1, Item 3
Complainant amends the proposed penalty for this item to $420. Linde agrees to abate as follows: When gas cylinders are stored, Linde will continue to assure that the cylinders are properly located and dovetailed, feathered or otherwise secured to the extent practicable.
Citation 1, Item 4
Complainant amends the proposed penalty for this item to $675.
Citation 1, Item 5
Complainant amends the proposed penalty for this item to $420.
Citation 1, Item 6
Complainant amends the proposed penalty for this item to $750. Should Linde elect to maintain respirators for use in dangerous atmospheres that may be encountered in the workplace, it will assure that:
(a) All employees who are required to use respirators are appropriately trained in use of the respirators in normal conditions and in emergencies;
(b) The respirators are properly inspected and maintained; and
(c) Appropriate records of respirator inspections are maintained, including an inventory of the parts inspected.
Citation 1, Item 7(a)
Complainant amends the proposed penalty for this item and its subparts to $560.
Linde will continuo to assure that the self-closing doors to the supervisor's room and to the quality control room are not propped open.
Citation 1, Item 7(b)
Complainant withdraws this subitem. If the bake out oven is put back into service, Linde will assure that leaking acetylene tanks are not in proximity to the oven.
Citation 1, Item 7(c)
Linde states that it will not store leaking acetylene tanks in proximity to the mercury vapor light.
Citation 2, Item 1
Complainant reduces the classification for this item from willful to other than serious and amends the proposed penalty to $500.
Citation 3, Item 2
Complainant withdraws this item. Linde will require that the acetylene generator attendant use gloves that are fully intact, except when performing tasks for which the wearing of gloves is impracticable.
(a) An inspection of Linde's above-identified worksite was conducted by OSHA compliance officers of the Pittsburgh Area Office from May 14, 1986 to June 23, 1986. As a result of this inspection, Linde was issued on November 14, 1986, serious and other than serious citations and notification of penalty assessing a total proposed penalty of $2,170.00. The citations allege violations of regulations promulgated pursuant to Section 5(a)(2) of the Act, and a violation of the recordkeeping requirements set forth at 29 C.F.R. 1904.2(b)(2). The citations additionally ordered the abatement of the alleged violations.
(b) Linde filed a timely notice of contest to the citations and proposed penalties with the Secretary of Labor. The notice of contest was duly transmitted to the Commission.
Citation 1, Item 1
Complainant amends the proposed penalty to $300, with the parties understanding that the cited condition resulted from a leak.
Citation 1, Item 2
Complainant amends the proposed penalty to $300. Linde agrees to abate as follows: When gas cylinders are stored, Linde will continue to assure that the cylinders are properly located and dovetailed, feathered or otherwise secured to the extent practicable.
Citation 1, Item 3
Complainant amends the proposed penalty to $600. Should Linde elect to maintain respirators for use in dangerous atmospheres that may be encountered in the workplace, it will assure that:
1. All employees who are required to use respirators are appropriately trained in use of the respirators in normal conditions and in emergencies;
2. The respirators are properly inspected and maintained;
3. Appropriate records of respirator inspections are maintained, including an inventory of the parts inspected; and
4. Standby personnel are provided with an appropriate respirator for rescue purposes. (Applicable if Linde elects to S.C.B.A.'s [self-contained breathing apparatuses] at its workplace).
Citation 1, Item 4(b)
Complainant withdraws this instance. Linde will use an explosion-proof light when doing maintenance work in the acetylene generator.
Complainant amends the proposed penalty for Citation 1, Item 4 to $210.
Citation 2, Item 2
Complainant withdraws this item. Linde will assure that all nameplates on its equipment are maintained in a legible condition.
Citation 3, Item 3
Complainant withdraws this item. Linde will reference "oiled" carbide as a product name on the existing MSDS for calcium carbide.
(a) Linde represents that the alleged violations in the above-captioned cases have been abated or will be abated as set forth in this Agreement. Linde represents that the non-recordkeeping violations will be abated within sixty (60) days of the signing of this Agreement, except as otherwise provided herein. Linde represents that the alleged violations of OSHA's recordkeeping regulation noted in the above-noted citations have been or will be corrected within six (6) months of the signing of this Agreement.
(b) Linde agrees to maintain its injury and illness records in accordance with the Act, the recordkeeping regulations at 29 C.F.R. Part 1904, the OSHA 200 Log and the instructions on the reverse side of same, and the revised BLS Recordkeeping Guidelines for Occupational Injuries and Illnesses effective April, 1986, and as they may all from time to time be revised.
(a) Linde certifies that its original notices of contest and all pleadings in these matters, including a copy of this Agreement, have been served on the affected unions in accordance with the Commission Rules at 29 C.F.R. 2200.7 and 2200.100. Furthermore, Linde certifies that this Agreement has been served upon all affected employees not represented by the unions in the same manner in which Linde's notices of contest were served on such employees, as prescribed in the Commission Rule at 29 C.F.R. 2200.7.
(b) Within 30 days of the Commission's Final Order in this matter, Linde promises to pay the amended penalty of $1,515 for the citations at issue in OSHRC Docket 86-1642, the amended penalty of $1,155 for the citations at issue in OSHRC Docket No. 87-350, the amended penalty of $4,315 for the citations at issue in OSHRC Docket No. 86-1384, and the amended penalty of $1,410 for the citations of issue in the OSHRC Docket 86-1743. Payment shall be by certified check in the total amount of $8,395 made payable to "OSHA, LABOR".
(c) Linde withdraws its contest to all items,as amended by this agreement, not withdrawn by Complainant.
Linde's agreement to take the proposed actions set forth herein and the signing of this agreement are not admissions by Linde of any violation of the Act or any standards or regulations promulgated or adopted thereunder, or of the truth of any of the allegations or conclusions set forth in the citations, the Complaint, or any other pleading filed in this matter. Furthermore, neither the signing of this agreement nor the doing of the proposed actions set forth herein shall be construed in any way as an admission of fact or law, or of fault or liability, in any claim or proceeding which now exists or may arise and be pursued by any person, agency, or entity, other than in any subsequent proceeding brought by the complainant under the Act.
The parties agree to bear their own attorneys' fees. costs and other expenses that have been incurred in connection with any stage of this proceeding up to and including the filing of this Stipulation and Settlement Agreement.
Respectfully submitted this 24th day of July, 1987.
UNION CARBIDE CORPORATION,
LINDE DIVISION George R. Salem
Solicitor of Labor
BY:
Willis J. Goldsmith
Marshall H. Harris
Regional Solicitor
Patricia A. Dunn
JONES, DAY, REAVIS & POGUE
Attorneys for Respondent
Matthew J. Rieder
Regional Counsel
Richard A. Uhlar UNITED STATES DEPARTMENT
Industrial Hygienist OF LABOR
Health and Safety Department
International Chemical Attorneys for Complainant
Workers Union
(AUTHORIZED EMPLOYEE
REPRESENTATIVE in OSHRC)