UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 93-2474

UNITED STEELWORKERS OF AMERICA,
AFL-CIO-CLC, et al.

Petitioner,

V.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR,

Respondent.

MOTION TO VOLUNTARILY DISMISS
PETITION FOR REVIEW UNDER FED. R. APP. P. 42(b)

1. Pursuant to Federal Rule of Appellate Procedure 42(b), petitioners, the United Steelworkers of America and the Oil, Chemical, and Atomic Workers Union (collectively, "petitioners") hereby move to dismiss their above-captioned petition for review of the Permit-Required Confined Spaces Standard ("PRCS").
   
   In support of its motion, petitioners state as follows:
   
   1.  On March 12, 1993, petitioners filed a petition for review of PRCS in the United States Court of Appeals for the Third Circuit. On April 19, 1993, the Third Circuit granted the motion of respondent Occupational Safety and Health Administration ("OSHA") to transfer the petition to the Eleventh Circuit.  On April 30, 1993, this Court docketed the petition as shown above.
   
   2.  On June 21, 1994, petitioners and OSHA entered into the attached settlement agreement, whereby petitioners agreed to dismiss their petition for review in return for OSHA's agreement to carry out the provisions of the attached settlement agreement, subject to refiling only if OMB does not approve OSHA's proposals contained in paragraphs 5 and 6 of the settlement agreement. The parties further agreed that each party is to bear its own, costs, attorneys fees, and expenses.
   
   ACCORDINGLY, petitioners hereby move under Fed. R. App. P. 42(b) to dismiss their above-captioned petition for review with each side to pay its own costs, subject to refiling only if OMB does not approve OSHA's proposal described in paragraphs 5 and 6 of the attached settlement agreement.

Respectfully submitted,

George H. Cohen
Susan D. Carle
Bredhoff & Kaiser
1000 Connecticut Avenue, N.W.
Suite 1300
Washington, D.C. 20036
(202)833-9340

Dated: June 21, 1994

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

United Steelworkers of America,
AFL-CIO-CLC,

Petitioner

v. No. 93-2474

Occupational Safety and Health
Administration, United States
Department of Labor,

Respondent

SETTLEMENT AGREEMENT

The Petitioner, United Steelworkers of America, AFL-CIO-CLC (USWA), by its attorneys, and the Respondent, Occupational Safety and Health Administration (OSHA), by its attorneys, agree to the following settlement of the petition for review.

1. On January 14, 1993, OSHA published in the Federal Register a Final Rule entitled Permit-Required Confined Spaces for General Industry (the standard). 58 Fed. Reg. 4462-4563 (January 14, 1993). The USWA has petitioned for review of the standard in this Court.
    
2. Within five working days of the execution of this settlement agreement, the USWA will move pursuant to Fed. R. App. p. 42(b) to dismiss its petition for review subject to refiling only if OMB does not approve OSHA's proposal as described in paragraphs 5 and 6 of this agreement.
    
3. OSHA will issue as soon as possible a Federal Register document correcting the language in the preamble to the standard now printed on pages 4477-4478 of the January 14, 1993 Federal Register document. The correction document will add the new sentence underlined below after the last sentence of the last paragraph of the third column of text beginning on page 4477 and ending on page 4478. The existing and new (underlined) material will appear as follows;
   
   As indicated in the preamble to the proposal (54 FR 24089], OSHA notes that doorways and other portals through which a person can walk are not to be considered limited means for entry or exit. However, a space containing such a door or portal may still be deemed a confined space if an entrant's ability to escape in an emergency would be hindered.
    
4. The correction document will explain that the additional sentence is intended to clarify OSHA's original intent and not to effect any substantive change in the standard.
    
5. Within 180 days after execution of this settlement agreement, OSHA will complete work on a proposal to modify the standard's existing provisions relating to off-site rescue services. In the same document, OSHA will reopen the record to solicit comments on the extent to which employers should provide for employee participation in, and access to records of, evaluation of confined spaces, including all atmospheric monitoring conducted under the standard.  Pending the completion of this rulemaking the standard's existing provisions will remain in effect.
    
6. OSHA will publish the proposal in the Federal Register as soon as possible following receipt of OMB clearance under Executive Order 12866. OSHA expects to complete work on the amended rule within 12 months after the close of the public comment period. Promulgation of the final rule will occur after receipt of Executive Order authorization.
    
7. OSHA will publish a proposed standard on confined spaces in the construction industry as soon as possible, consistent with Executive Order 12866, after receipt of the recommendations of the Construction Advisory Committee.
    
8. OSHA agrees in principle that the determination whether a space has "limited or restricted means for entry or exit," within the meaning of the standard's definition of "confined space," must be made by evaluating whether, considering the hazards posed by the particular space at issue, the configuration or other characteristics of the space would interfere with an entrant's ability to escape in an emergency situation. OSHA will consult with USWA representatives and any other interested parties in developing appropriate language reflecting this principle for inclusion in a compliance directive.
    
9. OSHA will include in a compliance directive the provisions contained in Attachment A. to this agreement.
    
10. The parties agree to bear their own attorneys fees, costs and other expenses incurred in connection with these proceedings up to and including the filing of the motion to dismiss the petition for review.

Agreed this day of June, 1994.

ANN ROSENTHAL
CHARLES F. JAMES
U.S. Department of Labor Room S-4004
200 Constitution Ave. N.W. Washington, D.C. 20210 Attorney for respondent Occupational Safety and Health Administration

GEORGE COHEN
SUSAN D. CARLE
Bredhoff & Kaiser
1000 Connecticut Aye, Suite 1300
Washington, D.C. 20036
Attorney for petitioner United Steelworkers
of America, APL-CIO-CLC

COMPLIANCE DIRECTIVE PROVISIONS

1. Questions and Answers for PRCS Standard Clarification
   
   A facility, falling within the scope of the General Industry standards, is undertaking physical changes involving work in permit spaces. These changes will also employ construction practices either by in-house or contractual employees. Which standard, 1910.146 or 1926.21(b) (6), will be enforced for the work involved in the permit-required confined spaces?

   Generally speaking, refurbishing of existing equipment and space is maintenance; reconfiguration of space or installation of substantial new equipment (as for a process change) is usually construction.  Those spaces identified under 1910.146(c)(1) as permit spaces that are undergoing maintenance or modifications, Which do not involve construction, would be subject to the General Industry standards.
   
   A confined space created during or as a result of current construction activity or entered to perform construction activity would usually fall within the scope of the 29 CFR 1926 standards and the general duty clause until the space is turned over for General Industry operations.
   
   Some examples:
   
   * The lining in a tank is in need of restoration either to prevent the structural part of the tank from deteriorating or to prevent the product from being contaminated by the material making up the tank structure. In either case, the partial patching or total removal of existing lining and replacement is maintenance. The installation of a new lining for the above reasons is also maintenance.
   
   * The relining of a furnace with a new refractory is Maintenance.
   
   * Tuck pointing and individual brick replacement in a manhole is maintenance.
   
   * The relining of a sewer line using- a sleeve which is pushed through a section of the existing system is maintenance.
   
   * Repainting, which is part of a program to maintain a system or prevent its deterioration is maintenance.

   Can a space that is initially designed for continuous employee occupancy become a "confined space" because of changes in its use?

   If the changes alter the character of the space or if new or or more serious hazards are introduced, those changes require reevaluation of whether the space is fit for continuous employee occupancy. If the space is not fit for continuous employee occupancy and the other criteria of the confined space definition are net, the space should be reclassified as a confined space.

   How will OSHA interpret the language in paragraph 1910.146(c) (2) requiring employers to inform employees of permit spaces by posting signs or "by any other e4nally effective means?"

   OSHA presumes that, ordinarily, information about permit spaces is most effectively and economically communicated through the use of signs. . Consequently, signs should be the principal method of warning under the standard. Alternative methods, such as additional training, may be used where they are truly effective in warning all employees who could reasonably be expected to enter the space. It is the employer's obligation to assure that an alternative method is at least as effective as a sign. In some cases, employers may have to provide training in addition to signs, to protect employees who do not speak English or who would have difficulty understanding or interpreting signs. (One method by which OSHA can gauge an employer's effectiveness is through random interviews of affected employees.)

2. Current construction and maritime standards governing confined space entries
   
   The following standards contained in Part 1917 (Marine Terminals), Part 1918 (Longshoring) and Part 1926 (Construction) apply to confined space entries in those industries.
   
   1917.23     Addresses entry into hazardous atmospheres at marine terminals (testing, ventilation, standby observers).
   
   1917.152(b)     Requires that work not be performed in confined space until it is determined, through atmospheric testing, that the space is not hazardous.
   
   1917.152(f) (2)     Requires ventilation and respiratory protection, with standby person, when hot work is done in confined spaces.
   
   1917.152 (f) (3)     Specific requirements for welding, cutting, or heating of toxic metals in confined spaces.
   
   1918.93     Addresses entry into storage spaces or tanks where potential hazardous atmospheres exist
   
   1926.21(b) (6) (i)     Requires instructions to employees who enter confined or enclosed spaces.
   
   1926.21(b) (6) (ii)     Defines the confined and enclosed spaces which require instruction.
   
   1926.352 (g)     Fire prevention measures associated with the use of fuel gas and oxygen in enclosed spaces.
   
   1926.353(b) (1)     Requirement for exhaust ventilation when welding, cutting, or heating is performed in confined spaces.
   
   1926.353(b) (2)     Requires air line respirators and standby person whenever the means of access is blocked by ventilation equipment.

CERTIFICATE OF SERVICE

I hereby certify that on this 21st day of June, 1994, a copy of the foregoing Motion to voluntarily Dismiss Petition for Review Under Fed. li. App. p. 42(b) was served by first-class mail postage prepaid on the following:

Stephen C. Yohay, Esq.
Any E. Hancock, Ssq.
McDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20036-5306

Miriam Swydan, Esq.
American Gas Association
1515 Wilson Blvd.
Arlington, VA 22209

Elihu Leifer, Esq.
Stephen Coye, Esq.
Sherman, Dunn, Cohen & Leifer
1125 15th Street, NW.
Suite 801
Washington, D.C. 20005

Daniel L. Bart, Esg.
GTE Service Corporation
1850 N Street, N.W.
Suite 1200
Washington, D.C. 20036

Neil J. King, Esq.
Wilmer, Cutlet & Pickering
2445 N Street, LW.
Washington, D.c.. 20037

Mary Wynn O'Brien
United Steelworkers of America
Five Gateway Center
Pittsburgh, PA 15222

Ann Rosenthal, Esq.
U.S. Department of Labor
Room 8-4 004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Nancy B.G. Lassen, Esq.
Willig, Willig & Davidson
1845 Walnut Street, 24th Floor
Philadelphia, PA 19103

Jordan Rossen, General Counsel
Ralph Jones, Associate General Counsel
UAW Legal Department
8000 East Jefferson Avenue
Detroit, Michigan 48214

  -Susan D. Carle