IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
ASBESTOS INFORMATION ASSOCIATION/
NORTH AMERICA
Petitioner,
v. No. 94-41097
ROBERT B. REICH,
SECRETARY OF LABOR,
Respondent.
_______________
AMERICAN IRON AND STEEL INSTITUTE,
Petitioner,
v. No. 96-60006
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
Respondent.
_______________
AMERICAN IRON AND STEEL INSTITUTE,
Petitioner,
v. No.96-60702
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
Respondent.
_______________
SETTLEMENT AGREEMENT
This Agreement sets forth the terms and conditions for settling the three above-captioned consolidated cases to the extent they involve the American Iron and Steel Institute ("AISI") as a petitioner or intervenor and the Secretary of Labor and the Occupational Safety and Health Administration (hereinafter referred to collectively as "OSHA") as respondents. The three actions involve challenges to OSHA rules regulating occupational exposures to asbestos in General Industry and the Construction Industry. The rules as promulgated and thereafter revised were published in the Federal Register on August 10, 1994, 59 Fed. Reg. 40964, June 29, 1995, 60 Fed. Reg. 33974, and August 23, 1996, 61 Fed. Reg. 43454. They are codified at 29 CFR § 1910.1001 and 1926.1101.
Basis of Settlement
In order to resolve the outstanding issues and settle the three pending actions, AISI and OSHA have entered into a Memorandum of Understanding ("MOU"), a copy of which is attached as Appendix A and incorporated herein as a part of this Agreement. The MOU sets forth the agreement of AISI and OSHA regarding the interpretation and application of various provisions and requirements of the Construction Asbestos Standard, 29 CFR 1926.1101, and the General Industry Asbestos Standard, 29 CFR 1910.1001, (hereinafter the "Standards") to AISI member company plant sites in SIC Code 3312. It provides the substantive basis for this Settlement Agreement.
Agreements and Undertakings of OSHA
For its part, OSHA agrees that once this Settlement Agreement is executed, the Secretary of Labor, the Assistant Secretary of Labor for Occupational Safety and Health, OSHA Compliance Officers, and any other Department of Labor officials or employees involved in interpreting or enforcing the provisions of the Construction Industry Asbestos Standard, 29 CFR 1926.1101, or the General Industry Asbestos Standard, 29 CFR 1910.1001, will interpret and apply the various provisions and requirements of those Standards at facilities of AISI member companies in accordance with the terms of the MOU to the extent that either such Standard is applicable to the facility, and will make decisions regarding whether or not to issue citations or to seek penalties or other relief on that basis. OSHA also agrees that the terms of this MOU shall govern the interpretation and application of the Standards for purposes of resolving or adjudicating any citation alleging a violation of the Standard(s) that is outstanding as of the date on which this Settlement Agreement is executed or that is issued thereafter.
If OSHA or any of its officials, employees, or agents takes any action that is inconsistent with the foregoing agreements in a matter involving any AISI member company, the fact that the AISI member company has acted in conformity with the terms and provisions of the MOU shall be a complete defense to any citation or claim alleging that the company has violated any provision or requirement of the Standard(s) to which the applicable provision(s) of the MOU are addressed.
Finally, OSHA undertakes within 60 days from the date of execution of this Settlement Agreement to provide copies of the MOU to the Administrators of State Plans approved by OSHA under Section 18 of the Occupational Safety and Health Act and to notify them that the interpretations of the Standards set forth in the MOU constitute a Federal program change for application at AISI member company plant sites.
AISI Agreements and Undertakings
For its part, AISI agrees that within two weeks after the execution of this Settlement Agreement, it will join with OSHA in fling a motion asking the Court to stay further proceedings in Case No. 96-60006 and Case No. 96-60702 and to dismiss AISI's petitions for review in those cases without prejudice to AISI's right to reinstate the petitions within 180 days if OSHA should ai1 to comply with its agreements and undertakings set forth above or if any person seeks judicial review of this Settlement Agreement or any actions taken pursuant thereto. If the Court issues an order granting the aforesaid motion, AISI will, within ten days thereafter, file a notice withdrawing its intervention in Case No. 94-41097. If the Court denies the motion, or if AISI reinstates the petitions for any reason other than an alleged failure by OSHA to comply with its agreements and undertakings set forth above, OSHA's obligations under this Agreement shall be suspended unless and until AISI subsequently withdraws the petitions.
Costs
The parties to this Agreement shall bear their own costs and attorney fees.
IN WITNESS WHEREOF, the undersigned parties have executed this Settlement Agreement on the 29th day of April, 1997:
AMERICAN IRON AND STEEL INSTITUTE
By ________________________
Andrew G. Sharkey, III
President
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
By ________________________
Gregory Watchman
Acting Assistant Secretary of Labor for Occupational Safety and Health
Appendix A to AISI Settlement Agreement
Memorandum of Understanding:
Application of Construction and General Industry Asbestos Standards
to AISI Member Companies
This Memorandum of Understanding ("MOU") sets forth the agreement of the Occupational Safety and Health Administration ("OSHA") and the American Iron and Steel Institute ("AISI") regarding the interpretation and application of various requirements of the Construction Asbestos Standard, 29 CFR 1926.1101, and the General Industry Asbestos Standard, 29 CFR 1910.1001, (the "Standards") to AISI member company plant sites in SIC Code 3312. The terms of this MOU clarify application of the Standards at AISI member company facilities covered by the MOU and delineate various obligations that AISI member companies have as employers under the Standards at such facilities. This MOU is part of an agreement to settle litigation brought against OSHA by AISI; employers whose operations are not within SIC 3312 may not rely upon this MOU.
The parties intend that the MOU will be incorporated into a Settlement Agreement between AISI and OSHA pursuant to which AISI will withdraw (or discontinue its intervention in) three petitions for review of the Standards pending in the United States Court of Appeals for the Fifth Circuit. Asbestos Information Association/North America v. Reich, No. 94-41097, AISI v. OSHA, No. 96-60006, and AISI v. OSHA, No. 96-60702. It is agreed and intended that, once the Settlement Agreement is executed, OSHA Compliance Officers and any other Department of Labor 0fficials or employees involved in enforcing the provisions of the Construction Asbestos Standard or the General Industry Asbestos Standard at facilities of AISI member companies will interpret and apply the Standards in accordance with the terms of this MOU to the extent that either such Standard is applicable to the facility. The terms of this MOU also shall govern the interpretation and application of the Standards for purposes of resolving or adjudicating any citation alleging a violation of the Standard(s) that is outstanding as of the date on which the Settlement Agreement is executed or that is issued thereafter. In addition, OSHA will provide copies of this MOU to the Administrators of State Plans approved by OSHA under Section 18 of the Occupational Safety and Health Act and will notify them that the interpretations of the Construction and General Industry Asbestos Standards set forth in this MOU constitute a Federal program change for application at AISI member company plant sites.
- Competent Person Supervision
When Class II, III, or IV work requiring competent person supervision under 29 CFR 1926.1101 is being performed at an AISI member company facility and a negative exposure assessment has been made, the competent person need not be at the plant, as long as he or she is available for consultation, provided that in the case of Class II work, the competent person supervises or performs the applicable duties set forth in 29 CFR 1926.1101(o)(3). If a negative exposure assessment has been made for the work activity being performed, the competent person need not inspect the work site further unless there is an employee request to do so or if the competent person learns of conditions that cast doubt on the continuing validity of the negative exposure assessment. In such a case, work that results in further disturbance of asbestos will stop until the competent person arrives. - Negative Exposure Assessments Negative exposure assessments for work activities (or categories of work activities) at AISI member company facilities can be made by a competent person on the basis of sound professional judgment and experience. Negative exposure assessments made for categories of work activities (such as wire stripping, gasket replacement/repair, panel replacement/repair) shall apply to the same categories of work of the same or lesser magnitude. For larger jobs, the competent person shall consider the processes and type of material, applicable work practices and control methods, and monitoring data for the work activity or for other work activities where monitoring results provide relevant information. Other types of objective data also may be considered. A negative exposure assessment made for one category of work activity may be applied to other types of work activity if a competent person reasonably determines that asbestos exposures associated with the other types of work activity would be lower than the exposures associated with the category of work activity for which the negative exposure assessment has been made
- Respirator Use for Class III Work When Wet Methods Are Not Used
When a negative exposure assessment has been made for a Class III job at an AISI member company facility in circumstances where wet methods were not used, the employee performing the job need not wear a respirator even though wet methods are not being used on the job, unless the work is likely to involve the disturbance of thermal system insulation or surfacing ACM. If, however, conditions arise that would invalidate the negative exposure assessment, the employee performing the job without the use of wet methods must wear a respirator to continue the work or the work must cease until a competent person arrives and determines that the work can proceed without the use of a respirator. Employees who perform work subject to this paragraph must be informed of the types of conditions that would invalidate a negative exposure assessment. If an employee does not perform work for which respirator use is required under the Standards, the provisions of the Standards that are triggered by the use of respirators shall not apply. This paragraph is not intended to affect the question of when the use of wet methods is required.
- General Work Practice Method of Compliance Requirements
Pursuant to 29 CFR 1926.1101(g)(1), wet methods, rather than vacuuming, may be used to clean up and collect debris and dust containing ACM or PACM. When vacuum cleaners are used to collect debris and dust containing ACM or PACM, the vacuum cleaners shall be equipped with HEPA filters.
- Use of Critical Barriers
When a negative exposure assessment has been made for Class I work at an AISI member company facility, the word "adjacent" as used in 29 CFR § 1926.1101(g)(4)(ii) refers to an area within 25 feet of a regulated area unless there is an intervening barrier, such as a floor, ceiling, or wall. This paragraph is not intended to alter the requirement that one of the control methods listed in 29 CFR § 1926.1101(g)(5) be used for all Class I jobs.
Where critical barriers (such as plastic sheeting) are used at an AISI member company facility, the area within the critical barriers need not be sealed or maintained under negative pressure unless the barriers are part of the structure of a negative pressure enclosure system for Class I work that is being performed in accordance with 29 CFR 1926.1101(g)(5)(i).
- Training of Employees Performing Class III Work
In accordance with 29 CFR 1926.1101(k)(9)(v), training of AISI member company employees who perform Class III work need not be consistent with the EPA requirements for training of maintenance and custodial workers as set forth at 40 CFR 763.92(a)(2) and need not take 16 hours, if a competent person determines that the EPA curriculum is not fully applicable or appropriate for the type of Class III work that is performed at the AISI member company facility. In such a case, the competent person shall specify alternative training that explains the hazards of asbestos and the appropriate work practices and control procedures. The training shall cover at least the following topics:
(1) The health effects associated with asbestos;
(2) The types of structural components and materials at the facility that should be deemed to contain asbestos;
(3) The relationship between smoking and asbestos in producing lung cancer, and information regarding public health organizations that offer smoking cessation programs or materials;
(4) The nature of operations that could result in exposure to asbestos and any protective controls and work practices necessary to minimize asbestos exposure and any necessary instructions in the use of these controls and practices;
(5) The purpose, proper use, fitting instructions, and limitations of respirators as required by 29 CFR 1910.134;
(6) Applicable criteria for providing asbestos related medical surveillance;
(7) The content or subjects of the Standard and its Appendices that are relevant to the employee's work activities; and
(8) An explanation of the Hazard Communication and Labeling requirements set forth in the section of this MOU bearing that heading.
Training that covers the foregoing topics shall be deemed to comply with the requirements of 29 CFR 1926.1101(k)(9)(v) & (viii). There are no explicit requirements as to the length of such initial alternative training or refresher training. An employee who has received training in accordance with the foregoing paragraph for Class III work will be deemed to have received the training required for Class IV work as well, provided the Class III training meets the two-hour minimum that is required for Class IV training.
- Compressed Air Cleaning
Some electrical components and motors contain asbestos. It is understood that these motors and electrical components must be cleaned from time to time in order to remove dirt or dust that can damage equipment performance or create a safety hazard and that the only feasible way to perform the cleaning operation is to use compressed air. AISI member companies may use compressed air to perform the cleaning operation without having to capture the dust generated by the activity if a competent person has determined that: (1) it is not feasible to clean the component in any other manner, and (2) the asbestos containing material is likely to remain intact throughout the cleaning process.
- Definition of Thermal System Insulation
As a matter of clarification, it is understood that the term "thermal system insulation" or "TSI" as used in the Construction Asbestos Standard, 29 CFR 1926.1101, does not include transite; galbestos; gaskets; valve packings; floor tiles; or electrical mountings, electrical isolators, electric wire coverings, and other materials used in electrical applications.
- Definition of Class III Work
Activities at AISI member company facilities that involve the disturbance or removal and associated cleanup in any work area in the course of one work day of an amount of asbestos-containing material or presumed asbestos-containing material that can be contained in one glove bag or waste bag that does not exceed 60 inches in length and width shall be considered to be Class III work.
Building maintenance involving the repair or replacement of no more than three panels of intact asbestos-containing transite, galbestos, or similar material in any work area in the course of one work day at an AISI member company facility shall be considered to be Class III work. A damaged or cracked panel shall be deemed to be intact if it meets the definition of "intact" set forth in 29 CFR 1926.1101(b). If OSHA field data from AISI member company facilities or other information from such facilities shows that exposures during removal of no more than three panels of intact asbestos-containing transite, galbestos, or similar material are likely to exceed the 8-hour time weighted average permissible exposure limit or the excursion limit, OSHA reserves the right to reconsider, after providing AISI an opportunity to comment on such field data or other information, whether such work should be reclassified as Class II work. OSHA will notify AISI of any reclassification made pursuant to this paragraph and will not apply such reclassification adversely to AISI member companies with respect to any activity that occurs less than 60 days following such notification.
Maintenance work involving the removal or replacement of wiring or electrical components containing asbestos containing material ("ACM") is Class III work if ACM is likely to be disturbed by the operation and is Class IV work if ACM is not disturbed.
- Demarcation for Class III Work
Where a negative exposure assessment has been made, the regulated area for a Class III job need not extend beyond the work area occupied by the employee(s) performing the job and the location of any uncontained asbestos-containing debris resulting from the job. An area where Class III work is performed need not be demarcated as a regulated area or made subject to access restrictions, provided that:
(1) A negative exposure assessment has been made for the work activity involved;
(2) No condition arises that would invalidate the negative exposure assessment while the activity is being performed;
(3) Any ACM waste or debris generated by the work is not left unattended and is cleaned up upon completion of the ACM-related work or the workshift, whichever is sooner; and
(4) It is not reasonably foreseeable that employees other than those performing the work will enter the regulated area, as described at the beginning of this paragraph, and, if they do enter, they will be instructed to leave.
- Hazard Communication and Labeling
AISI member companies shall be deemed to be in compliance with the requirements of 29 CFR 1910.1001(j)(2), (j)(3)(v) & (j)(4) and 29 CFR 1926.1101(k)(1), (k)(2), (k)(3), (k)(4), (k)(6) & (k)(8) at their facilities (to the extent those provisions otherwise apply) if they follow the specific requirements of those paragraphs or if they post signs stating that all thermal system insulation and sprayed or troweled-on surfacing material at the fci1ity must be treated as asbestos unless the material is known or determined not to contain asbestos. The signs also shall identify all other generic types of potential asbestos-containing materials in the facility, such as flooring, roofing, siding, valve packing and gaskets, and electrical insulation and mounting materials, and state that such materials must be treated as asbestos unless the material is known or determined not to contain asbestos. The AISI member company shall take feasible steps to ensure that its non-English speaking employees understand the content and significance of such signs. Such signs must be posted where employees (including contractor employees) who may disturb such components or materials can see the signs on a regular and routine basis.
AISI member companies shall be deemed to be in compliance with the requirements of 29 CFR 1910.1001(j)(2)(iii) and 29 CFR 1926.1101(k)(2)(ii) & (k)(4) at their facilities (to the extent those provisions otherwise apply) if they follow the specific requirements of those paragraphs or if they notify contractors whose employees work at their facilities that all thermal system insulation and sprayed or troweled-on surfacing material at the facility, and all other generic types of potential asbestos-containing materials in the facility, such as flooring, roofing, siding, valve packing and gaskets, and electrical insulation and mounting materials, must be treated as asbestos unless the material is known or determined not to contain asbestos. Such communication can be made by including an appropriate message in contract-related documents or by any other means that will effectively bring the information to the attention of the contractor.
- Coverage of Employees Under 29 CFR 1910.1001(j)(7)(iv) & (v)
For purposes of application to AISI member company facilities, 29 CFR 1910.1001(j)(7)(iv) applies to employees who perform janitorial services that may result in contact with ACM or PACM when such services are not related to Construction or performed on the worksite of a construction job. 29 CFR 1910.1001(j)(7)(v) applies to employees who are covered by 29 CFR 1910.1001(j)(7)(i) and by 29 CFR 1910.1001(j)(7)(iv) and their representatives.
- Coverage of Employees Under 29 CFR 1926.1101(k)(10)(iii)
For purposes of application to AISI member company facilities, 29 CFR 1926.1101(k)(10)(iii) applies to employees who perform Class I, Class II, Class III, Class IV work at the facility.
IN WITNESS WHEREOF, the undersigned parties have executed this Memorandum of Understanding on the 29th day of April, 1997.
AMERICAN IRON AND STEEL INSTITUTE
By: ___________________________________________________
Andrew G. Sharkey, III
President
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
By: ___________________________________________________
Gregory Watchman
Acting Assistant Secretary of Labor
for Occupational Safety and Health