UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
_____________________________________
)
ELIZABETH DOLE, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, )
) OSHRC DOCKET NO. 89-1198
v. )
) Inspection No. 000627109
ZINC CORPORATION OF AMERICA, A )
DIVISION OF HORSEHEAD INDUSTRIES, ) REGION III
INC., and HORSEHEAD RESOURCE )
DEVELOPMENT COMPANY, INC., )
)
Respondent. )
)
UNITED STEELWORKERS OF AMERICA, )
AFL-CIO-CLC, AND LOCAL )
UNION 3317, )
)
Authorized )
Employee )
Representative. )
)
_____________________________________)
)
ELIZABETH DOLE, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, )
) OSHRC DOCKET NO. 89-1199
v. )
) Inspection No. 000627018
ZINC CORPORATION OF AMERICA, A )
DIVISION OF HORSEHEAD INDUSTRIES, ) REGION III
INC., and HORSEHEAD RESOURCE )
DEVELOPMENT COMPANY, INC., )
)
Respondent. )
)
UNITED STEELWORKERS OF AMERICA, )
AFL-CIO-CLC, AND LOCAL )
UNION 3317, )
)
Authorized )
Employee )
Representative. )
)
_____________________________________)
The parties, ZINC CORPORATION OF AMERICA, A DIVISION OF HORSEHEAD INDUSTRIES, INC., and HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC. ("ZCA" or "the Company"); the SECRETARY OF LABOR, the UNITED STATES DEPARTMENT OF LABOR ("the Secretary"); and the UNITED STEELWORKERS OF AMERICA, AFL-CIO- CLC, AND LOCAL UNION 3317 ("the Union"), by their undersigned representatives, have reached a full and complete settlement of OSHRC Docket Nos. 89-1198 and 89-1199 under Rule 2200.100, the Occupational Safety and Health Review Commission's ("the Commission") procedural rule on settlement. Accordingly, the parties state as follows:
1. The Commission has jurisdiction of these matters under 29 U.S.C. 659(c), Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").
2. The parties move, pursuant to the Commission Rule 2200.9, that these matters, OSHRC Docket Nos. 89-1198 and 89-1199, be consolidated for purposes of settlement. The two matters have common parties and involve the same overall plant site.
3. The Secretary amends the Citations at issue in OSHRC Docket Nos. 89-1198 and 89-1199 in accordance with the attached Appendices A, B, C, and D.
4. ZCA undertakes the obligations in this paragraph 4 in consideration for, among other things, the amendments to the Citations referenced in paragraph 3 and the amendment of the total proposed penalty in paragraph 5 of this Agreement.
A. ZCA and the Union shall jointly conduct a training program about the hazards of lead in the workplace. This training program shall be attended by all employees, both management and hourly, who will be involved in the implementation of lead-related programs in the Palmerton Plant. The training program shall include education on subjects such as respiratory protection, housekeeping, medical surveillance, medical removal, and disciplinary systems. The training program also shall cover all matters required to be covered by the Citations at issue, all matters in 29 C.F.R. 1910.1025(l), as well as matters required by 29 C.F.R. 1910.1200(h). Those hourly employees participating in the training program shall suffer no loss of pay because of the time spent attending the training program sessions. Representatives of the Secretary shall be informed of the training schedule and shall be invited to attend the training program. The training program shall be completed in six months.
B. A physician selected by the Union shall be permitted to review the medical records of Palmerton Plant employees who have been or may be exposed to lead in the workplace (provided that appropriate releases are obtained by the Union). The physician shall perform a medical screening program for those Palmerton Plant employees who the physician determines need a further medical evaluation for lead exposure. The physician, along with representatives of the Union (both Local and International), shall be permitted to tour the Palmerton Plant and to meet with physicians retained by ZCA to obtain information about the medical surveillance and medical removal programs. This program shall be completed in nine months.
C. ZCA, in consultation and cooperation with the Union, shall revise the Palmerton Plant's respirator program as well as the Plant's work practice and engineering control programs as necessary to responsibly address the Citations at issue. All such revisions shall be submitted to the Secretary prior to their implementation, if possible.
5. The total proposed penalty for both OSHRC Docket No. 89-1198 and 89-1199 is amended to $614,000.00.
6. ZCA withdraws its Notice of Contest to the Citations in OSHRC Docket No. 89-1198 as amended and its Notice of Contest to the Citations in OSHRC Docket No. 89-1199 as amended. These withdrawals, however, are made solely to facilitate the settlement of these matters. They do not qualify and are not to be interpreted as being inconsistent with Paragraph 7 below.
7. ZCA specifically denies any and all allegations that it violated the Act. Nothing in this Agreement, including the Agreement itself, its execution, as well as any final order, is an admission or evidence, nor is it to be construed as an admission or treated as evidence, of any fact or of any violation of the Act by ZCA, other than in a proceeding brought by the Secretary under the Act. For purposes of proceedings brought by the Secretary under the Act, the parties agree to treat the Citations in OSHRC Docket Nos. 89-1198 and 89-1199, as amended, as uncontested citations. This Agreement is being entered into solely to avoid further litigation and expense to the parties.
8. There are no citation items in either OSHRC Docket No. 89-1198 or OSHRC Docket No. 89-1199 that remain to be decided by the Commission.
9. All dates and time periods imposed by this Agreement, unless otherwise indicated, shall run from the date of the Commission's final orders in these cases. The parties shall confer in good faith with the intent of reaching agreement on some reasonable extension or extensions of the abatement periods set forth in this Agreement and in the Citations, if such should become necessary. The language in this paragraph, however, is not intended to supercede the Commission Rule at 29 C.F.R. 2200.37, which deals with petitions for modification of the abatement period.
10. Included with this Agreement is a draft order consolidating these cases and approving this Settlement Agreement. The form and content of this draft order have been negotiated by the parties. The parties hereby consent to the entry of this draft order so that the litigation of these matters may be brought to an end.
11. 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.
12. ZCA certifies that the original Notices of Contest as well as all pleadings in OSHRC Docket Nos. 89-1198 and 89-1199, including a copy of this Agreement, have been served on affected employees at the Palmerton Plant in accordance with Commission Rule 2200.7.
Respectfully submitted, this __ 8th __ day of _ December _
1989.
__________________________ Robert P. Davis
Robert C. Gombar Solicitor of Labor
Arthur G. Sapper
JONES, DAY, REAVIS & POGUE
Metropolitan Square ___________________________
1450 G Street, N.W. Marshall H. Harris
Washington, D.C. 20005-2088 Regional Solicitor
(202) 879-3939
Counsel for Respondent,
ZINC CORPORATION OF AMERICA, ____________________________
A DIVISION OF HORSEHEAD Matthew J. Rieder
INDUSTRIES, INC., and Regional Counsel for OSHA
HORSEHEAD RESOURCE DEVELOPMENT and MSHA
COMPANY, INC.
____________________________ _____________________________
Mary-Win 0'Brien Covette Rooney
Assistant General Counsel Attorney
UNITED STEELWORKERS OF AMERICA UNITED STATES DEPARTMENT
OF AFL-CIO-CLC LABOR
Five Gateway Center Room 14480, Gateway
Building
Pittsburgh, Pennsylvania 15222 3535 Market Street
(412) 562-2543 Philadelphia, PA 19104
(215) 596-5176
Counsel for the Authorized Counsel for Complainant,
Employee Representative, ELIZABETH DOLE, SECRETARY
UNITED STEELWORKERS OF AMERICA, OF LABOR
AFL-CIO-CLC, AND LOCAL UNION 3317
1773s
APPENDIX A
In Docket No. 89-1199, the Secretary amends Citation No. 1 and the accompanying proposed abatement periods as set forth below. As used in this Appendix, "OSHA" refers to the Wilkes-Barre, Pennsylvania, Office of the Occupational Safety and Health Administration.
Item 1a: Subitem 1a(c) is deleted. The classification of all other subitems is amended from "willful" to "serious".
Item 1b: This Item is combined with Item 1c to form a single Item 1b. Subitem 1b(c) is deleted. The classification of all other subitems in the combined Item 1b is amended from "willful" to "serious". Within 60 days, ZCA shall retrain employees in the performance of the fit tests recommended by the manufacturers of the respirators provided to the employees and shall require each employee to perform a fit test each time that the respirator is donned.
Item 1d: This Item is combined with Item 1f and Item 1g to form a single Item 1d. Without regard to such combination, Subitems 1d(c), 1f(c), and 1g(c) are deleted. Except for progress reports, Step 1 of the abatement schedule shall be completed in 90 days. Progress reports shall be submitted to OSHA and the Union on a quarterly basis (90 days), with the first report due at the end of Step 1. Step 2 of the abatement schedule shall be completed by June 30, 1990. It is recognized that ZCA is obligated to install only those engineering and work practice controls that are deemed feasible and that the installation of such controls may not reduce employee exposure to lead (without the use of personal protective equipment) in accordance with the schedule set forth at Table 1 in the standard at 29 C.F.R. 1910.1025.
Item 1e: The classification of Item 1e is amended from "willful" to "serious".
Item 1h: This Item is deleted.
Item 2a: The classification of Item 2a is amended from "willful" to "serious".
Item 2b: Subitems 2b(a) and (b) as well as 2b(d)-(i) are deleted. The classification of Subitem 2b(c) is amended from "willful" to "serious".
Item 2c: Subitems 2c(a), (b), (c), and (e) are deleted. The classification of Subitems 2c(d) and (f) is amended from "willful" to "serious".
Item 3a: This Item is combined with Item 3d and Item 18 to form a single Item 3a.
Item 3b: This Item is combined with Item 3c to form a single Item 3b. The classification of the combined Item 3b is amended from "willful" to "serious".
Item 3e: This Item is combined with Item 3f and Item 3g to form a single Item 3e. Without regard to such combination, the abatement date for Item 3e is amended to November 30, 1989, and the abatement date for Items 3f and 3g is amended to February 28, 1990. Recognizing the potential limitations posed by certain structural conditions, it is understood that surfaces shall be maintained as free as feasible of lead accumulations.
Item 3h: The classification of Item 3h is amended from "willful" to "serious". ZCA shall continue to enforce its policy of prohibiting eating, drinking and smoking in areas in which employees are exposed to lead above the PEL.
Item 3i: The abatement date for Item 3i is amended to January 15, 1990.
Item 4a: Subitems 4a(a) and 4a(f) are deleted. The remainder of Item 4(a) is combined with Item 4(e) to form a single Item 4a.
Item 4b: This Item is deleted.
Item 4c: Subitem 4c(f) is deleted.
Item 4d: This Item is deleted.
Subitem 5(d) is withdrawn. The classification of Item 5 is amended from "willful" to "serious".
Item 6a: This Item is combined with Item 6b and Item 6c to form a single Item 6a. The classification for the combined Item 6a is amended from "willful" to "serious". ZCA may abate the condition in the combined Item 6a through work practices that reduce employee exposure to the permissible exposure level. Within 60 days, ZCA shall reduce to writing a program for the control of copper dust through work practices. The program shall be distributed to the Union, employees and OSHA.
Item 7a is combined with Item 7b, Item 7c, Item 7d, and Item 7e to form a single item 7a. Without regard to such combination, Subitems 7a(a), 7d(d), and 7e(d) are deleted. With regard to respiratory protection, ZCA shall continue to train employees to perform a fit test recommended by the manufacturer each time that a respirator is donned. With regard to feasible administrative or engineering controls, Step 1 of the abatement schedule shall be completed in 90 days. Progress reports shall be submitted to OSHA and the Union on a quarterly basis (90 days), with the first report due at the end of Step 1. Step 2 of the abatement schedule shall be completed by June 30, 1990.
Item 8a is combined with Item 8b and Item 8c to form a single Item 8a. The classification for the combined Item 8a is amended from "willful" to "serious".
Item 9a is combined with Item 9b and Item 10 to form a single Item 9a. The Step 3 abatement date for the combined Item 9a is amended to February 1, 1990.
This Item is deleted.
The classification of Item 12 is amended from "willful" to "serious".
This Item is deleted.
This Item is deleted.
This Item is deleted.
Subitem 16(a) is deleted. The classification of the remainder of this Item is amended from "willful" to "serious".
In Docket No. 89-1199, the Secretary amends Citation No. 2 as set forth below.
The classification of Item 6 is amended from "serious" to "other".
In Docket No. 89-1199, the Secretary amends Citation No. 3 as set forth below.
Subitem 3(a) is deleted.
In Docket No. 89-1198, the Secretary amends Citation No. 1 as set forth below.
The parties agree that any communications or alarm system used by ZCA to abate the cited condition may be operated by the stand-by employee, i.e., that only a single stand-by employee is required for abatement as long as the stand-by employee is able to carry out both the communications function and any rescue function.
The parties agree that ZCA may abate by using a movable platform equipped with guardrails.
1773s
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
_____________________________________
)
ELIZABETH DOLE, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, )
) OSHRC DOCKET NO. 89-1198
v. )
) Inspection No. 000627109
ZINC CORPORATION OF AMERICA, A )
DIVISION OF HORSEHEAD INDUSTRIES, ) REGION III
INC., and HORSEHEAD RESOURCE )
DEVELOPMENT COMPANY, INC., )
)
Respondent. )
)
UNITED STEELWORKERS OF AMERICA, )
AFL-CIO-CLC, AND LOCAL )
UNION 3317, )
)
Authorized )
Employee )
Representative. )
)
_____________________________________)
)
ELIZABETH DOLE, SECRETARY OF LABOR, )
UNITED STATES DEPARTMENT OF LABOR, )
)
Complainant, )
) OSHRC DOCKET NO. 89-1199
v. )
) Inspection No. 000627018
ZINC CORPORATION OF AMERICA, A )
DIVISION OF HORSEHEAD INDUSTRIES, ) REGION III
INC., and HORSEHEAD RESOURCE )
DEVELOPMENT COMPANY, INC., )
)
Respondent. )
)
UNITED STEELWORKERS OF AMERICA, )
AFL-CIO-CLC, AND LOCAL )
UNION 3317, )
)
Authorized )
Employee )
Representative. )
)
_____________________________________)
Respondent in OSHRC Docket No. 89-1198, by letters dated April 4, 1989, timely contested the Citations issued to it by Complainant on March 15, 1989. Respondent in OSHRC Docket No. 89-1198 also contested the penalties proposed by Complainant for the Citations.
Respondent in 89-1199, by letters dated April 4, 1989, timely contested the Citations issued to it by Complainant on March 15, 1989. Respondent in OSHRC Docket No. 89-1199 also contested the penalties proposed by Complainant for the Citations.
The parties have moved that these cases be consolidated for purposes of settlement. In addition, 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 cases. The Motion and the Agreement having been read and considered, it is
ORDERED: (1) That the parties' Motion is granted, and these cases are hereby consolidated for settlement purposes;
(2) That the terms of the Settlement Agreement are approved and incorporated as part of this Order;
(3) That the Citation items are affirmed, modified, or vacated in accordance with the terms of the Settlement Agreement; and
(4) That this Order, pursuant to Section 12(j) of the Act, 29 U.S.C. 661(j), shall become the final order of the Commission at the expiration of 30 days from the date of docketing by the Executive Secretary, unless within that time a member of the Commission directs that it be reviewed.
Dated this _________ day of _____________ , 1989.
___________________________
MICHAEL H. SCHOENFELD
Judge, OSHRC