Oil, Chemical and Atomic Workers International Union

Plain-English summary

After an explosion injured or killed employees at an IMC Fertilizer plant in Sterlington, Louisiana, the Secretary and the employer entered a pre-contest settlement that included $10 million in penalties and a corporate process safety management implementation schedule. The employees' union challenged the length of that schedule and argued that it had been denied meaningful input into the settlement. The Commission held that the PSM deadlines functioned as abatement dates even though they were incorporated into the settlement rather than printed on the formal citations. That characterization gave the union a statutory right to challenge their reasonableness and gave the Commission jurisdiction over that issue. The Commission declined to set aside the settlement because the union had participated extensively in the inspection and submitted findings that OSHA considered, despite receiving the final agreement less than two days before execution. It remanded for the ALJ to determine whether the PSM implementation schedule for the Sterlington plants was reasonable, with the Secretary bearing the burden of proof.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1) and 29 C.F.R. §§ 1910.119, 1910.120(p)(7), 1910.134(b)(10), and 1910.134(e)(5)
• Outcome: The request to set aside the settlement was denied, but the reasonableness of the Sterlington PSM deadlines was remanded for further proceedings.
• Key point: A remedial deadline in a settlement can be an abatement date that employees have a statutory right to challenge, even when it is not printed on the citation form.

Full text (OSHRC public release)

                                  UNITED STATES OF AMERICA
     OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                        OneLafayette Centre
                  1120 20th Street, N.W. - 9th Floor
                                Washington, DC 20036-3419


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                                                                                           cs :202) 60640so

SECRETARY OF LABOR,
Complainant,

    v.                                                       ..
                                                             ..          Docket No. 91-3349
                                                              .

OIL, CHEMICAL AND ATOMIC WORKERS ;
INTERNATIONAL UNION, AFL-CIO :
AND ITS LOCAL 4786, ..
Authorized ..
Employee Representative. ..
..

                                          DECISION                 ’

BEFORE: FOULKE, Chairman, and MONTOYA, Commissioner.
BY THE COMMISSION:
On May 1, 1991, a number of employees were injured or killed when an explosion
occurred at an IMC Fertilizer Corporation plant in Sterlington, Louisiana. The Secretary
inspected that plant, as well as two others adjacent to it. Before any citations were issued,
the Secretary and IMC Fertilizer’ entered into settlement negotiations. The authorized
employee representative, the Oil, Chemical and Atomic Workers International Union and
its local 4-786 (“OCAW” or “the union”), had been involved in the lengthy inspection, but
was not a participant ifi the discussions leading up to the preparation of a “draft”
agreement, nor was it informed that the discussions were taking place.

’ The evidence indicates that Angus Chemical Companv owned the plant and IMC Fertilizer operated it.
Both emplovers are parties to the settlement agreement. and the “inextricable relationship” between the two
was never &solved during the hearing. The issue of whether OCAW serves as the authorized employee
representative for Angus employees is not on review. For convenience,we will refer to the employer, which,
in any event, is not a party to this proceeding, as “MC Fertilizer.”
.
 The Secretary’s discussions with
document referred to by the Secretam 4 as an “Informal Settkment .Grunent.“-
,’ .A>part
of the execution of this agreement on October 31, 19%. the Secretary citd the companv4 for
specific violations of general industry standards concerning fire prevention. emergencv 4 exit
plans, hazard communication, and respirator use, as weI1 as for muitipIe violations of the
“general duty clause,” 29 USC. 5 654(a)(l), section 5(a)( 1) of the Occupational Safe9 and
Health Act of 1970 (“the Act”), 29 U.S.C. 55 6X-678, for failure to furnish 223 employees
with a workplace reasonably free of hazards. The violations were left uncharacterized. IhlfC
Fertilizer agreed not to contest the citations and to pay $10 million in penalties. The .
agreement covers identifiable citation items3 as well as a commitment to take actions not
addressed in any formal citation in that the company agreed to implement a corporate-wide
process safety management (“PSM”) plan4 at its plants in Louisiana and Florida? In other
words, parts of the PSM plan responded to the alleged general duty clause violations
contained in the citations for the Sterlington, Louisiana facility, while others were agreed to
by IMC Fertilizer without a citation. The Secretary refers to the PSM implementation
schedule only as “deadline dates for other remedial actions” or as “a phased-in time frame

2 According to the Secretary, “informal” refers only to the fact that a settlement was reached prior to any
notice of contest; it does not mean that it not legally binding following execution.

3 Citation Nos. 1 and 2, covering access to employee exposure and medical records, flammable and
combustible liquids,hazardous waste operations and emergency response, respiratory protection, fire brigades,
employee alarm systems, air receivers, powered industrial trucks, electric utilization systems, hazard
communication, and the general duty clause, section 5(a)(l) of the Act.

’ The PSM plan requires the completion of process hazard analyses for each location to prevent the incidence
and mitigate the consequences of a release of various harmful chemicals. The employer must also examine
its safety procedures during each phase of its operations. Corrective actions may include development of
contingency and emergency response planning, control over ignition sources, detonation traps, location of
physical facilities, employek training, and assignment of management authority and responsibility.

5 OCAW does not represent emplovees . at the Florida plant, and no employee representative at that plant
filed a notice of contest. OCAW does not contend that it has anv standing to- contest any part of the
settlement agreement involving the Florida plant, and we so find. Whether an employee representative at the
Florida plant would have had standing to file a notice of contest in this action is not decided here.
 3

for the completion    Of corrective   actions    (k       elimination   of hazardous   cmditii-lr, . .** -p2
                                                                                                           .&

implementation     schedule for this plan spans a h-year time period.”
        On October    29, 1991, ~0 days before the date the parties were schedukd                to sign the

agreement, the Secretary provided the union with a copy of it, for their input.                 The union
filed a notice of contest challenging           the extended       abatement    periods    set out in the
agreement as to the plants at the Sterlington, Louisiana facility and requesting the judge to
set aside the agreement on the grounds that the union had been deprived of its opportunity
for input into the settlement negotiations       under Boise Cascade Cop., 14 BNA OSHC 1993,
1991 CCH OSHD lf 29,222 (NO. 89-3087, 1991) (consolidated) (“Boise Cascade”). After an
expedited hearing, the administrative law judge held that the only unexpired abatement dates
in the agreement to which the union objected were beyond the scope of the original citation,

c and that Boise Cascade does not apply to this case. The judge concluded that even if Boise
Chscade did apply, he lacked the authority to set aside the agreement because his
jurisdiction was limited to the reasonableness of abatement dates f”Ixedin citations.
The union petitioned for review, and Commissioner Montoya directed the case for
review on March 23, 1992. Oral argument was heard on November 17, 1992.

        Since no employer notice of contest was filed in this case, the Commission has no
jurisdiction   to set aside the agreement on that basis.                The Secretary contends      that the
union’s notice of contest as to the reasonableness of the abatement dates in the agreement
does not provide an independent basis for the Commission to assert jurisdiction. He claims
that the contest is either moot because the abatement dates in the citations have passed or
invalid because the other time frames are not part of a citation.
         It is by now well-settled    that in the absence of an employer notice of contest, the
Commission has no jurisdiction to review the Secretary’s settlement of a citation and penalty,




6 Although at the time of the inspection. the Secretary had not issued a standard governing process safety
management,a PSM standard has since been promulgated. 29 C.F.R. 9 1910.119.

4

except as to the reasonableness of the abatement dates.’ Section 10(c) of the .\;t .-r 1 ., +
. : ,.,‘-L
that an authorized employee
d representative may file a notice of L‘mtcSSt“dbrin~~
,‘ ,’ ~:n,.!the
period of time fixed in the citation for the abatement of the violation is unreasonable.” It
is undisputed that MC Fertilizer never contested the citations in this case; the question
remains whether the union’s contest here provides the jurisdictional basis for the
Commission to review the agreement.
We find, as a preliminary matter, that the union’s contest was not moot at the time
of the hearing and is still not moot. The dzit’esin the settlement agreement to which the
union objects have not passed.’ The PSM implementation schedule is still ongoing, with
the latest deadline set in December 1995.
Because the union’s contest is the only basis on which the Commission may rest its
exercise of jurisdiction in this case, our resolution of the jurisdictional issue depends on our
resolution of the validity of the union’s challenge.g For the following reasons, we find that
the union’s contest is a valid one, as it concerns the reasonableness of abatement dates. The
matter is therefore properly within our jurisdiction.

7 Donovan v. Allied Ikdus. Wo&zts (A&et Lb&S), 760 E2d 783,785 (7th Cir. 1985); Donovan v. Local %z
ICWU (Englehatd), 748 E2d 1470 (1 lth Cir. 1984); Donovan v. IntL Union, Alliedhdus. Works of America
(whid’l), 722 E2d 1415,1418,1422 (8th Cir. 1983);Donovan v. UnitedSteelwohm ofAmerica (Morwanto),
722 E2d 1158, 1160 (4th Cir. 1983); Donovan v. OSHRC (Mobil oil), 713 E2d 918, 931 (24 Cir. 1983);
Mmhall v. Sun Pem&um Rods., 622 E2d 1176, 1185 (3d Cir.), cert: denied, 449 U.S. 1061 (1980); Dak M:
M&n Constr., Lk v. Htigson, 502 F.2d 278, 280 (9th Cir. 1974).

8 All other abatement dates had either passed by the time of the hearing, or are no longer contested. The
only dates at issue in this case are those constituting the PSM implementation schedule.

9 In Philfi’ps66 Co., No. 90-1549 (August 20, 1993), also issued today, we rely in part on the concept of
ancillaryjurisdiction to review the entire settlement agreement in that case. There is no dispute in that case
that the Commission hasprimary jurisdiction to review the settlement of employer-contested citations, and the
non-cited matter (PSM plan) is viewed as ancillarv or subordinate under Davies Can Co., 4 BNA OSHC 1237,
1976-77 CCH OSHD Yi20,704 (No. 8182, 1976).dand other cases. In this case, however, there is nothing to
which even primar>,jurisdiction attaches unless we find that the subject of the employee contest is the
reasonableness of abatement dates, or that the case is otherwise properly before us.
 5

       The Secretary       insists that by objecting to what in his viw         is an aspax   \!i ::;lc
agreement    other     than abatement    dates,   the union     is attempting   to infringe   On his
prosecutorial discretion.     He argues that because the PSM plan schedule is not “fixed in a
citation,” it falls within the realm of his prosecutoriai     discretion and is not a permissible
union objection.      The Secretary maintains that the deadline dates are not “abatement dates
fixed in a citation” because they cannot be traced directly to alleviation of hazardous
conditions   existing at a plant and were no’t cited in connection with actual violations
observed during an inspection.          The union contends to the contrary that the plan is
essentially an extended abatement schedule anchored in an underlying citation which
generated the settlement agreement in the first place. Acknowledging that the Secretary’s

. literal interpretation might be plausible if seen in isolation, the union argues that “[w]e must
not be guided by a single sentence or member of a sentence, but look to the provisions of
the whole law and to its object and policy.” Pilot Life Inr. Co. v. Dedeaw 481 U.S. 41, 51
(1987).
In our view, the union’s challenge addresses the reasonableness of an abatement date.
Although the abatement dates are not fiied in an official “Citation and Notification of
Penalty - OSHA-2 (Rev. l/84)” form, their appearance does not change their nature. They
are designed, as are other abatement dates, to ensure that certain conditions have been
eliminated or analyses made within a specified time. In claiming that the deadline dates are
not traceable to hazardous conditions at a plant, the Secretary chooses to ignore the reason
for implementing PSM plans. As evidenced by the terms of the settlement agreements in
this case and in Phillips 66 Co., No. 90-1549 (August 20, 1993), as well as by the proposed
PSM standard on which these settlements were based, see supra note 4, the plans are
designed to identify and prevent at all IMC Fertilizer’s plants the -type of hazardous
conditions that escalate into accidents such as the one that occurred at the Sterlington,
Louisiana facility. Counsel for the Secretary at oral argument called the provisions in the
settlement agreements a “mini-PSM . . . standard” and noted that if any deadline in the
settlement agreement was more generous than its counterpart in the standard eventually
issued, the agreement would conform to the standard. That the Secretary was able to
 6

achieve corporate-wide implementation of a PSM plan through wtkmsnt          in~;d   ‘: I:--: lL:l=:h
litigation of citations under a specialized
  CI
                                  a
                                              PSM standard. then still pendinc. ha 20 ticlrino
on the nature of the timetables involved. Counsel for the Secretary described the corporate-
wide settlement      mechanism   as acting “to bring the entire company        under the same

obligations as though the Secretaty had cited violations in each pkznt” (emphasis added).
Thus, the Secretary requests that we give the other conditions agreed to by IMC the same
effect under the Act as if they were set forth in the citations.

        ‘.The Secretary’s intention to have all parts of the agreement treated substantively as
if they were citations, regardless of whether they are formally citations or not, is borne out
in the document itself. The agreement includes a provision that “IMCF and ANGUS agree
that this Agreement and the terms hereof shall become a final order of the Occupational

.
Safety and Health Review Commission, and shall be enforceable under 0 11(b) of the Act.
IMCF and ANGUS consent to the entry of such an enforcement order by the United States
Court of Appeals.” Thus, the Secretary expects the entire agreement to be accorded the
considerable benefits associated with citations that become final orders enforceable under
color of section 11(b) of the Act. Such benefits include immediate enforcement by a United
States court of appeals without review of the Corknission’s findings or a new trial on the
merits. In addition to executing this summary enforcement procedure, the court may hold
contempt proceedings, impose penalties under the Act, and invoke other available remedies
to accomplish swift abatement of violations and payment of penalties. The Secretary intends
the Commission to give final-order status and binding effect to both (1) the uncontested
citations that become final orders by operation of law under section 10(a) of the Act and
(2) the employer’s promises to adhere to PSM plans. While the Secretary is correct that
uncontested citations are deemed final orders by operation of what he calls the self-executing
provisions of section 10(a) of the Act, this matter is not “uncontested.”
The Secretary claims that both “the citations and settlement agreement” have become
a final order under color of the Act and that the issue of whether that order is enforceable
under section 11(b) of the Act is an appellate court enforcement matter rather than a
Commission matter. We disagree. While the Secretary and an employer may be free to
settle an action by agreeing to any terms that are not opposed to public policy, we are not
 7

bound to enter an enforceable final order embodying the settlement.           This C~mzi?;+:    “;\;
                                                                                                 .,
a judicial body, not a recorder of contracts.”   HO V. &fmti?t.\hm’etta cw-p.. 845 F.Ld 545 i,5th

Cir. 19ss> (“HO”) (citing ujrited States K Ciry of Mimi, 664 Cd            4% (5th Cir. 1951) (en
bane) (Rubin, J., concurring)).
       Settlement agreements “have attributes both of contracts and of judicial decrees, or
in this case, administrative   orders. While they are arrived at by negotiation       between the
parties and often admit no violation of law, they are motivated by threatened or pending
litigation.”
       .     UnitedStates v. TTr Continental Baking Co., 420 U.S. 223,236 n. 10 (1975). Here,
that threatened or pending litigation arises under the provisions of the Act. me Act
“created a new cause of action, and remedies therefor, unknown to the common law, and
placed their enforcement in a tribunal supplying speedy and expert resolutions of the issues

.
involved.” Atlas Roofing Co., Inc. v, OSHRC, 430 U.S. 442, 461 (1977) The Act provides
a single, orderly enforcement scheme: If a violation is found during an inspection, the
Secretary must issue a citation and may propose a penalty, sections 8 through lo(a) of the
Act, 29 U.S.C. 00 657 through 659(a); the Secretary may prosecute contested citations in
enforcement proceedings before the Commission, section 10(c) of the Act, 29 U.S.C.
8 659(c); the Commission has sole authority to assess penalties, section 17(j) of the Act, 29
U.S.C. Q 666(j); the Secretary may seek enforcement of Commission orders, section 11(b)
of the Act, 29 U.S.C. 0 660(b). See hzovan v. OSHRC (Mobil Oil), 713 F.2d 918,926 (2d
Cir. 1983). The Act offers only one vitayto obtain summary enforcement of a Commission
final order, whether that order be the result of litigation or settlement, and that is to follow
the enforcement scheme set forth in the Act. No provision of the Act specifically addresses
pre-contest settlements, but with the authority to litigate a case comes the authority not to,
and such settlements are not expressly prohibited. The Secretary’s power to settle claims
advances the central purpose of the Act, which is to “reduce safety hazards and improve
working conditions.” Donovan v. Inti. Union, Allied huh. Workers (Mzirlpool), 722 F.2d
1415, 1420 (8th Cir. 1983), citing Dale h4. Madden Const~,Inc. v. Hodgson, 502 F.2d 278,280
(9th Cir. 1974). Under the Act’s enforcement scheme, the Secretary is not entitled to claim
final order status for a settlement agreement unless potential parties are accorded an
 8

opportunity to exercise rights granted under section 10 of the Act. This wmnx AX;,; 7 I-,-

absence of Review Commission jurisdiction.
It is true that had this case been litigated instead of settled. the Secretary could not
have demanded. and the Commission could not have ordered, MC Fertilizer to implement
a PSM pIan at any or all of its plants, because the PSM plan provisions of the settlement
agreement were not designated as part of the formal citations that were simultaneously
issued and amended in the settlement agreement. With respect to actual citations, section
10(c) of the Act grants the Commission the power only to “issue an order l . . affirming,
modifying, or vacating the Secretary’s citation.” Yet we see nothing to prevent the Secretary
from extracting from IMC Fertilizer a promise to implement a PSM plan in exchange for
something the company values, whether that be a decreased penalty, the absence of a
serious or willful characterization of the violations, extended abatement dates, or something
else. Moreover, the parties may reasonably expect, as they do here, that the agreement as
a whole be treated as any other final order. Section 10(c) of the Act grants the Commission,
in addition to power to dispose of citations themselves, power to “[direct] other appropriate
relief.” It is under this grant of authority that we review and approve settlements as
enforceable final orders. See, e.g., Ho (a federal court’s power to grant relief extends beyond
its power of jurisdiction). However, for the settling parties to obtain the benefit of a final
order, the “burden” must be borne as well. That’may include defending the reasonableness
of the abatement dates agreed uporiin the settlement, even if those dates are not formally
“fixed in the citation.”
Pending oral argument, the Secretary commended to us Local No. 93, Ind Asn. of *
Firefightersv. City of Cleveland, 478 U.S. 501 (1986), for the proposition that a court is not
barred from entering a consent decree merely because the decree provides broader relief
than the court could have awarded after a trial. In that case, certain minority firefighters .
lodged a discrimination complaint against the city. The Supreme Court upheld a settlement
agreement that provided relief benefiting individuals who could not have maintained their
own action in court. In doing so, the Court did not rely on the concept of ancillary
jurisdiction. The Secretary would prefer to have us read Local 93 only to support his
argument that the Commission should acknowledge, and the courts alone enforce, settlement
 9

agreements like the one in this case covering more than citations. The ~;t~tf&:tb \;-~?,\r;
                                                                                     CA.
                                                                                      LI.
  w
the pposition  that the parties, with the help of the decision-makt:r. mavd ~~~<>~+~~ mc,re

through settlement than through litigation. However, the Secretary seems to believs that the
Secretary and the employer are the only parties whose rights and duties we are charged with
adjudicating under     the Act. The Secretary’s narrow interpretation           of LOCd    93 fails to take
into account    how a two-party settlement agreement might affect third parties, namely,
employees and their representatives,       who are granted rights under the statute. The Supreme
Cburt cautioned      that “[tlhis is not to say that the parties may agree to take action that
conflicts with or violates the statute upon which the complaint was based.” Local No. 93,
478 U.S. at 526. Thus, by invoking Local 93 here, the Secretary cannot expect the
Commission to overlook the union’s colorable objections to the terms of the settlement

.
agreement.”
In summary, we conclude that the PSM plan implementation schedule, as
incorporated into the settlement agreement, is an abatement period. The union may
challenge the reasonableness of that period only as it applies to the plants at the Sterlingon,
Louisiana facility, and the Commission hear those objections, under section 10(a) of the Act.
See, e.g., Pan American World Aiways, Inc., 11 BNA OSHC 2003, 1984-85 CCH OSHD
l’l26,920 (No. 83-249, 1984) (collecting cases).
IJT Abuse of D&don by the Secretary under Boise Cascade
Before remanding this case to the judge for consideration of the reasonableness of
the abatement dates, we consider the union’s allegation that it was deprived of an .
.
opportunity for input into the settlement negotiations as prescribed in Bake Cascade.
Assuming, without deciding, that Boise Cascade applies in this case, we fmd that the

lo The Secretary raises the specter of unions attempting to interfere with his prosecutorial discretion and
discouraging employers from ever entering into settlements. Citing Mobil Oil, 713 F.2d at 927, he contends
that nothing in the statute indicates that Congress intended the Secretary’s enforcement authority to be
subordinate to emplovee rights. However, in Mobil Oif, the Second Circuit noted that the Act subordinates
the prosecutorial discietion of the Secretarv to the rights of employees in only !SUO
                                                                                    instances, one of which is
the right to challenge an abatement .period noted in a citation. It is that right that the union is exercising   .
                                     .
here.

10

Secretam’s
        d actions do not constitute an abuse of discretion such that the settlc:zx:r                  - \-c +
                                                                                                      a..-
set aside.”
           The union was extensively involved in the inspection            and submitted a report on its
findings    to the Secretary.   However,    the union was not informed that settlement negotiations
were   taking place. Two days before the Secretary’s 6-month deadline for issuing citations
resulting from the explosion, a copy of the 67.page settlement agreement was faxed to ~0
union officials. The union’s response showed that it was primarily concerned with the level
of union involvement anticipated under the terms of the agreement.                       As a result of the
union’s comments, IMC Fertilizer wrote a letter to the union’s president about
                                                                           . the level of
union involvement. The Secretary describes this document                     as “a letter agreement from
IMCF outlining the level of union participation in the implementation phase of the agree-

.
ment.” The union maintains that the letter merely expresses a willingness on the part of the
company to meet with the union to discuss the question of union Wolvement in process
safety issues. Uncontradicted testimony indicates that before writing the letter, company
representatives told the union that “this settlement . . . is final. We can’t change one single
word of this Agreement.” In any event, the settlement agreement itse& unmodified, was
executed less than forty-eight hours after it was disclosed to the union.
In Boise Cascade, the Commission expressed a hope and an expectation that the
Secretary and employer would “make every effort to provide employees with the opportunity
for input in the settlement process & much as practicable.” We noted the Secretary’s
assurances at oral argument in the B&e Cascade case “that it is the policy of the Secretary
to confer with employees or give them the opportunity to confer prior to the finalization of
a settlement agreement.” Ih at 1997, 1991 CCH OSHD at p. 39,123. We suggested that
even though “input can be received at any time prior to the execution of the settlement
agreement,” it would “only be beneficial if it is received before the Secretary and employer

I1 The judge made no findings on whether the opportunity for input on these facts was an abuse of the
Secretary’s discretion under Boise, since he found that Boise was inapplicable to this case. In the judge’s view,
Boise applies only to cases initiated by an employer’s notice of contest,where the affected employees or
authorized employee representative has elected party status, and where the Secretary and employer submit the
settlement agreement to the Commission for approval. In light of our disposition, we need not determine
whether the judge’s analysis is correct:

11

have reached a final decision on the terms Of the Settlement.” 1~1.at 19% L! i?.h. 1w i C‘CH
0s~~ at p. 39,124 & n. 6. We noted, however, that the degree XKI method or’ iE?ti: LV~S
a matter not for the judge, but for the Secretary, in his discretion, to determine on a cas+bv-d
case basis. At the same time, the Secretary was not given unfettered discretion, as the
decision reserved the possibility of finding a “rare” abuse of discretion in “unusual or
egregious cases where it appears that the Secretary has contravened his stated policy by
denying employees an opportunity for input.” Id. at 1998, 1991 CCH OSHD at p. 39,124.
The union argues that the Secretary’s efforts to afford it an “opportunity for input”
in this case were so inadequate as to constitute a constructive denial of that
. opportunity.
The Secretary argues that if Boise Cascade applies, the union was given sufficient
opportunity for input. The Secretary maintains, as he did in Boise Cscrrde, that it is
OS&I’s policy to encourage settlements, and to welcome employee input. He admits,
however, that if an employer requests that a union be excluded from the discussions, OSHA
tends to honor that request, and, in most cases, will only inform the union that settlement
negotiations are going on and that it will eventually have the opportunity for comment.
The union’s opportunity for input here was minimal at best. It had less than two full
working days to review a lengthy agreement that had already been negotiated by the time
its input was sought. However, when the union’s role is viewed in context, fkom the time of
the explosion to the issuance of the citations six months later, we cannot say that the
Secretary abused his discretion in this case. The union worked closely with OSHA during
OSHA’s 3-month inspection, meeting with the OSHA team, gathering evidence and
coordinating employee interviews. The union even issued a report analyzing the cause of
the e@osion that OSHA took into account in setting abatement dates, and the union
attended the closing conference at which a list of proposed citations was read.
In this case, the union’s participation early in the process, together with the
supplemental letter from IMC Fertilizer acknowledging the union’s concerns, offsets the
limited opportunity for input that the union was given later in the process. Nothing in the
record supports a finding of. abuse of discretion in this case, SO we deny the union’s request
that we set aside the settlement agreement on the grounds that Boise Cascade was violated.
 K Order
We remand this case to the judge for a determination of whether Ihe PS.LI pian
implementation schedule. as it applies to the plants at the Sterlington,Louisiana t’acilim.
d is
reasonable. The judge may conduct any further hearings he deems necessan;.d The
Secretary shall submit a statement addressing the reasonableness of the timetable dates in
accordance with Rule 38 and shall bear the burden of proof in showing that the dates are
reasonable.

                                                         Edwin G. Foulke, Jr.
                                                         Chairman



                                                         Velma Montoya
                                                         Commissioner

Dated: August 20, 1993
 UNITED
STATES OFAMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street. N.\N. - 9th Floor
Washington, DC 20036-3419

                                                                                           =u.
                                                                                       .   SOM ‘202) 50&545G
                                                                                           =s 12021 606-SC50




Secretary of Labor,                            .   ..
              Complainant,                          ..
                                                   .
      v.                                           ..             Docket No. 91-3349
                                                   ..

OIL, CHEMICAL AND ATOMIC                           .
WORKERS INTERNATIONAL UNION,                       I
AFL-CIO AND ITS LOCAL 4-786,                       ..
             Authorized                             ..

. Employee Representative. ..

              NOTICE OF COMMISSION             DECISION AND REMAND ORDER


The attached Decision and Order of Remand by the Occupational Safety and Health Review
Commission was issued on August 20. 1993. The case will be referred to the Office of the Chief
Administrative Law Judge for further action.

                                                   FOR T-H-ECOMMISSION


August 20. 1993
Date

Docket No. 91-3349

YOTICE IS GIVEN TO THE FOLLOWING:


Daniei J. Slick. Esq.
Counsel for Regional Trial Litigation

. Office of the Solicitor, US. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 501
525 S. Griffin Street
Dallas, TX 75202

-George A. Cohen, Esq.
 Jeremiah A. Collins, Esq.
 Bredhoff & Kaiser
 1000 Connecticut Ave., N.W., Suite 1300
 Washington, D.C. 20036


James R. Morrin, Esq.
Wildman, Harrold, Allen and Dixon
225 West Wacker Drive
Chicago, IL 60606


Prentice H. Marshall, Jr., Esq.
Patrick S. Casey, Esq.
Sidley & Austin
One First National Plaza
Chicago, IL 60603


James A. Cronin, Jr.
Administrative Law Judge
Occupational Safety and Health
  Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204-3582

uNlTEC STATES OF AMERtCA
OCCUPATiONAL 3 FETY AND HEALTH RE
1825 K SREET N.?J
477-i FLOOR
\wWNGTON DC 20035 736

SECRETARY OF LABOR !
Complainant, OSHRC DOCKET
v. NO. 91-3349

OIL, CHEMICAL AND ATOMIC
WORKERS INTERNATIONAL UNION,
AFL-CIO, AND ITS LOCAL 4-786
Authorized Employee
Representative.

                  NOTICE OF DOCKETING
           OF ADMINISTRATIVE  LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on February 27, 1992. The decision of the Judge
will become a final order of the Commission on March 30, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
March 18, 1992 in order to ermit su2 lcient time for its review. See
Commission Rule 91, 29 C.8 .R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
 .
DOCKET NO. 91-3349

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Aw party
havrng questions about review rights may contact the Commission’s Exkcutic’e
Secretary or call (202) 634-7950.
FOR THE COMMISSION

Date: February 27, 1992 Ray H. Darling, Jr.
Executive Secretary
 DOCKET NO. 91-3349
NOTICE Is GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room MOO4
200 Constitution Ave., NW.
Washington, D.C. 20210

James E. White, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘&ite 501
Griffin & Youn Streets
Dallas, TX 752 tf2

• Geor e H. Cohen, Esq.
  Bred i off & Kaiser ,.
  1000 Connecticut Ave., N. W.
  Washington, DC 20036

James R. Morrin, Es .
Wildman, Harrold, A len and Dixon
225 West Wacker Drive
Chicago, IL 60606 1229

Prentice H. Marshall, Jr., Esq.
Sidle & Austin
One b irst National Plaza
Chicago, IL 60603

James A. Cronin
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO t!0204 3582

00107607863 :06
 UNITa srms w AMERICA
~CUpATlONAL SAFETY AND HEALTH Rwtw COM~i~ION
1244 N. SPEER BOULEVARD
ROOM 250
DENVER. COLORADO 80204-3582

                                                                                  w
                                                                                  COM w3)844-3759
                                                                                  F5 w-359

                                                      I
SECRETARY OF LABOR,
     Cumplabn~

       v.                                             I     OSHRC Docket No. 910334SE

OIL, CHEMICAL AND ATOMIC
WORKERS INTERNATIONAL UNION,
AFLCIO, AND ITS IDCAL 4-786,
      Authorized Employee
      Representative.

.

APPEARANCES:
       For the Complainant:
               Sue AM Wolff,Esq.,PatrickD. Gilfillan,Esq.,Officeof
                     the Solicitor,U.S. Departmentof I&or, Washington,
                     D.C and V. Denise Duckworth,Officeof the Solicitor,
                     U.S. DepaItmentof Labor,DaMa&    7bs

       Fbt the Authoriml EmployeeReptzsentatiw
                  GeorgeH.CoBea,Esq.,Btabhoff
                                            & Kaiser,
                                                    W&shin-       D.C


Before: Administrative bw Jud” James A crosin, Jr.

                                  m                                                       .

       m      procading    arises under the Occupational safety and Hdtb   Act of 1970 (29
USC. Section 651 a seq.; hereafter called the “Act”).
        Following an investigation by the Occupational Safety and Health Administration .
(OSHA) of a May 1, 1991 explosion at’s worksite of IMC Fertilizer, Inc. (IMCF) hated
in Sterlington,    Louisiana, OSHA issued citations under section 9(a) of the Act to IMCF
and Angus Chemical (Angus), the owner of the facility, on October 31, 1991. No notice

of ant& to tkSt Citations WWt filed either by IMCF Of AnguS. Instead, tht &cd
emplqcm entered into a sin@e informal settlement agreement with the Secretary of
bbr &td October 31, 1991 and waived their fights to file notices of contest to the
citations. Although the informal settlement agreement mentions Mm’s and hgu~’
consent to uentry of a final order,” the agreement was never submitted to the &ma-
sion for approval. See Exhibit E-3 at pg. 13.
‘I’he Oil, Chemical and Atomic Workers International Union, AFLCIO, for md
on behalf of its bcaI 6786 (OCAW), however, in its role as an authorized employee .

representatiw: filed one notice of contest under section 10(c) of the Act to cert& of the
abatement dates in the citations issued on the MCF and Angus inspections and u to
some of the abatement dates set out in the informal settlement agreement. Addjtiona&
the notia of contest requested that the informal settlement agreement be set aside in its
entirety based on the Secretary’s failure to compiy with the &w&sion’s ruling in a-
twy of Lobor v Bob carctldc Corp. (Boise Chsccuk), 14 BNA OSHC 1993,199l CCH
OSHD 129,222 (Nos. 89-3087 and 89-3088, 1991) that requires that a&cted emplm
or their authorized employee representative, who have elected party status in a case
pending before the Commission, be afforded an opportunity “to provide input on all
matters pertaining to the settlement before the agreement is GUzed.”
This case was received by this judge on January 21, 1992, and an expedited hear-
ing was held on February 13,1992, at Dallas, Taas. At the hearing this judge ruled that
Boise M was inapplicabk to this cast and denied OCAW’s moticm to set aside the
lnformalSettlementAgrttment. Afkr rtconsidtratio~thisjudge B that nrliag.
In this judge’s view, the settlement procedures mandated by Boise C&c& apply
only in a case i&Wed by an tmpbyer’s notie of CoIltest,where the afkcted tmployecs
or author&I em- representative have elected party status, and where the Secretary
and employer submit the settkment agreement to the Commission for approval,
Commission jurisdiction under the Act arises in any one of four ways: (1) when
an employer files a notice of contest within 15 days to a citation issued under section 9(a)
of the Act (2) when an employer files a notice of contest within 15 days to a notification

                                                 2

of a failure to abate issued under s&on lo@) of tht Act (3) when an tmpbytr cantmu
or aes a petition to modify an abatement date in a citation. See section lO(c the Aa
md Commission Rule 37, or (4) when an affected employee or authorized employet
representative files a notice of contest alleging that the period of time fixed in the du-
tion for abatement of a violation is unreasonable.
In this case neither of the cited employers filed notices of contest to the citations
which were issued to them under section 9(a) of the Act. The oniy notice of contest filed
in this case was by OCAW and it is only through this not& of contest that the Commis-
sion attained judsdktion. When only an employee notict of conttst is filed, however, the
Commission has jurisdiction ovtr only the reasonableness of the abatement times set for
the items contained in the citation. Also, it is well settled that in the a&act of an *
employer notice of contest, employees lack standing to challenge anything otherthantht
reasonableness of the abatement dates set forth in the citations. See Donovrrn Y I-0
of Ameh
.
tibnd Viii& Al&d Idtil Works (Whirlpool), 722 Fo2d 1415 (8th Cir.
1983).
The Commission also has held that when an employer files a notkt of c0ntcst
only io the reasonableness of the abatement period or simply Irequests an extension of
the abatement period, the Commission does not gain jurisdiction over the entire citation.
See D&z Pack@g Covny, 8 BNA OSHC 1999, 1980 CCH OSHD f24,729 (No. 77.
3266,1x$0); Gi&mM4nufocnuing, 7 BNA OSHC 1611,1979 CCH 06HD 123,782 (No.
764719,1979).
InthiscasethcCommissionwasncvcriwesttdwithjurisdictionovuthecntire
citations or ovtr tbt cited tmployt~ txctpt with regard to the -bkness of tbe
abatement dates in the citations. This judge, therefore, lacks the authority to impose on
the cited empkyen and the Secretary the settlement procedures mandated by Bbik
CUSCtZtk
The Secretary and cited employers, however, may not deprive empbyees of their
statutory right to contest the reasonableness’of the abatement dates set forth in a citation
through a settlement agreement. Once an authorized employee representative files a

                                               3

. a

m&    of contest to the citation’s abatement dates, the Secretary lacks the disu&ja       to
cntcr into an enforceable agreement with a cited employer to extend the abatement
dates of the citation. Stated somewhat differently: a commission    final order regarding
the reasonableness of the citation’s abatement dates supersedes any agreement between
the Secretary and IMC to extend a citation’s abatement dates.
       &cause Boise Casctrde was found to be inapplicable in this case, it is UM~
for th& judge to determine whether or not OCAW was afforded an opportunity to pm
tide input on all matters pertaining to the informal settlement agreement.    Evidene on
&at issue, however, is contained in the record for po&~le review by the ammission.
       Finally, even if B&e cascade was applicable to this c&e and it was found that
OCAW was not @en the opportunity for input, the Commission would lack the authority
to set aside the informal settlement agreement. The courts have uniform@ held that the
Commission’s jurisdiction over settlement agreements bctwcen the Secretary and cited

.
employers is limited to employee challenges to the reasonableness of the abatement
dates in the settlement agreement. Thus, the commission cannot undo, or affect, a
settlement agreement that the Secretary has concluded with a cited emplqer, except with
respect to the reasonableness of the abatement dates. See whirlpool, 772 E2d at 1420.

                           Reasonableness of Abatement Dates

       The only remaining issue before the commission is the reasonableness of the

abatement dates in the citation which have been challenged by OCAW and any abate-

ment dates in the itlfonnaf settlement agreement that extend thaw abatement dates.

When the reasonableness of an abatement date is at issue, the burden of proving reason- -

abkncss by a preptmderance of the evidence lies with the Secretq         Dnd h&&g



       In this case, OCAWs notice of contest challenged the reasonableness of the

abatement dates set forth for items 3, 5, 9, 12, 13, 21, 22 and 23 of Citation No. 1. The


                                            4

only abatement datCS in the citation which have not yet eXpw are UE March 1, 1992

data for item 5 (hazardous substance training), item 12 (respirator users medical status)

and item 13 (respimtor fit tests). None of the provisions of the settlement agreement

extended the March 1 abatement dates. With respect to items 3, 9, 21, 22 and 23, of

Citation No. 2, the hazds created by those violations must be eliminated prior to the

operational start up of the NP plant because the abatement dates have already c@&.

   Mr. James E Rogers, the OSHA safety supcmisor who led the OSHA &est@

tive team, selected the three abatement dates at issue (Tr. 142). According to Mr.

Rogers, OSHA generally takes into consideration such things as the employ& cap&ty
.
to abate and the gravity of the violation or the danger to which the emplqws arc

exposed when selecting an abatement date, and this procedure was followed in this CIB

(Tr. 142-143).

   The standard at 81910.J20 (p)(7)(‘)
                                    t 9 in item 5, requires employers provide new

employees exposed to health hazards or hazardous substances at treatment, storage, and

disposal (TSD) facilities with 24 hours of initial training and, thereafter, with eight hours

of refresher training annually. The objective of this training in this case is to quaint

emp@ecs with the nature of the hazardous waste generated at the NP plant and bow TV

handle this hazardous waste in a safe and healthful IIBZUIIW
so BSnot to endagcr them- . .

   When asked why he had sckcted the abatement date of March 1, 1992, Mr.

Rogers explained that he considered the following factors: the number of emplayees to

be trained, the fact that the NP plant would not come back on line before January 1,

                                          5

1% and he f’ct that during the months of Novtrnbtr and Decaber there wzu a hi@

ab~nte&m rate at the plant due to the holidays and hunting SeaSOIlS. Ah. Rogers testi-

fied that there also was a “problem” Of the availability of people qualified to teach the

tratig (Tr. 15243). It should be noted in regard to that “problem” that OSm

required that the violation under item 6, which charged that the trainers who had taught

the initial training lacked the new academic background, be abated “imme&te~ew

       Thirty-seven out of the forty-one empluyees on the emergency response m                      w

not received the initial 24 hour training and according to.* Mr. Rogers, these employees

continued to work at the plant during November and December, 1991 ur: 152,154). No

attempt was made by OSHA to determine if they were available for training during that .

period (Tr. 218).

 Finally, Mr. Rogers stated that this type of required training dcd                    “fairly ld       in

OSHA’s priorities compared to the operator training on the neflvequipment which had a

higher priority (Tr. 155-156).

       Item No. 12 invohrts the standard at ~1910.134@)(10) which requires that prsons

should not be assigned to tasks rquiring the use of rcspirato~~ UI&SSit bar been cktcr-

mined that they are physically able to perform the work md use the equipment. Addi-

tionally, the standard req&cs that a respiratoruser% mcdia3l status should be revkwed

periodically (for instan- annually). To comply with this latter requirement, rqimtor

users must be pySically examined by a doctor or specialized f&ility to determine

whether the employee is physically capable of wearing a respirator (Tr. 158). Mr. Rogers

conceded that item 12 was a “sign&ant violation” (Tr. 201).

                                                6

-in, Mr. Rogers reiterated that the date of March 1, 1992 was selected becam

of normally high employee absenteeism rate during the months of Novemt>er and

~mm&, 1991, and because the plant ws not projected to come back on line until the

first of the year (Tr. 159). Mr. Rogers did not consider medical review a high priority

item because there were a number of employees whose paper work was up to date.

IMCF, therefore, had an adequate number of peopk qualified to use a respirator and

that it would not “werly pose a hazard to employees~ during January and Febnrary, 1992

(Tr. 160).

    According to Mr. Rogers, there were 10 respirator users who had’not had their

medical status reviewed and these employees were working at the worksite (Tr. 160). ’

Mr. Rogers agreed that in the cast of an emergency, respirator users who were not phy+

ically capable of wearing a respirator or who did not have a properly fitted respirator,

would be facing a serious hazard (T’r. 206).

    Item 13, im&es       a violation of ~1910.134@)(5), which requires that facepiece to

face seal tests be conducted for all employees who have to w a respirator. Mr.

Rogers testified these fit tests are relatively easy to conduct but that they cannot take

place until after the medical status of the respirator =r is determined (Tr. 165466).

The March 1,1992 abtement date was selected in order to give IMCF suRcient time to

abate both violations under items 12 and 13.

   Mr. Rogem repeated that OSHA was more concemd with making sure that when

the NP plant came back on line on January 1, 1992, none of the hazards that cuntriiiuted

to the catastrophic explosion would still exist (Tr. 167). As of the time of the hearing,

                                           7

. .
however, the W plant was still not op-t& It is Mr. Rogers’ present oph tit

there is nothing now to prevent Mm from doing the medical status r&ew and fitmtcst-

hg at this time (Tr. 172-174).

                                     Discussion

   The evidence offered by the ‘Secretary in support of the March 1, 1992 abatement

dates for items 5, 12 and 13 of Citation NO. 1, is unpersuasive and MIS short of est&~h-

i,ng the reasonableness of those abatement dates. Essentially, OSHA selected the wh

first dates based on its conclusion that IlbfCF lacked the knowledge, resources and ability

to eliminate both the existing hazards under items 5, 12 and 13 and the hamds that

contributed to the explosion. But no direct evidence was introduced to suppost that

conclusion. No attempt was made to determine-whether the employees, who required

the 24 hour training, the medical status review, and the fit testing, mre wmvaihbk

during the months of November and December, 1991. Also, no attempt was made to

confirm IMCF’s claim that it was unable to provide the required training, medical status

review, and fit testing during that period.

   In this judge’s view, the gravity of the violationsimmhed is high and the remhing

hazards require elimination before the NP plant goes back into operation. l%ae ir 110

valid reason in this record for codmaing to cxpoe employees to these hazar& ti two

more months after tbt plant commences operation. It Gould be unconscionabk br an

employer to expose employees to hazardous waste without proper training or to require

an employee to wear a respirator when responding to emergencies such as fires,

explosions, or the release of toxic substances without first determining whether the

                                          8

employm in physically capable of wearing a respirator and fit testing the respirator to w

employs.

                                             Findinns of Fact

      Au findings of fact relevant and necessary to a determination of the issues have

ken found specially and appear in the decision above. See Rule 52(a) of the Feded

Rules of civil Procedure.

                                            Conclusions of Law

      10              The Commission’s holding in B&w Ckzscadeis inapplicable to this case.

      2               This Commission lacks jurisdiction to set aside the info-             settlement

agreement between the secretary, Angus Chemical, and IMCF.

      3   l           The Secretary failed to establish by a preponderance of the evidence that

the March 1, 1992 abatement dates for items.5, 12 and 13 of Citation No. 1, issued

October 31, 1991, were reasonable.

      40              A reasonable time for abating items 5, 12, and 13 of C!itatjon No. 1 js

before resuming production at the NP plant.

      Based upon the entire record, it is ORDEREm

      1       l       OCAWs motion to set aside the informal settlement                  agreement is

DENIED.

                                                      9

2 The abatement dates of March 1, 1992, for items 5, 12 and 13 of Citation

NO. 1, &sued October 31, 1992, are VACATED.

  3.    The abatement of items 5, 12 and 13 of Citation No. 1, issued October 31,

1~1, must be accomplished prior to commencement of production at the NP plant.

Dated: February 25,1992

                                     10