SECRETARY OF LABOR,

Complainant,

v.

PHILLIPS 66 COMPANY,

Respondent.

OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION, LOCAL 4-227,

Authorized Employee
Representative.

Docket No. 90-1271 & 90-1549
(Consolidated)

DIRECTION FOR REVIEW AND ORDER

An order of Administrative Law Judge Louis G. LaVecchia approving a settlement agreement between the Secretary of Labor and Respondent, Phillips 66 Company ("Phillips"), is hereby directed for review under section 12 (j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651-78 ("the Act"), and Commission Rule 91 (a), 29 C.F.R. § 2200.91 (a). For the reasons that follow, we set aside the judge's order and remand for further proceedings.

Following an explosion and fire at Phillips' petrochemical facility in Pasadena, Texas, the Secretary, through the Occupational Safety and Health Administration ("OSHA"), conducted a lengthy inspection resulting in the issuance of a citation setting forth detailed and complex allegations of violations of section 5 (a) (1) of the Act, 29 U.S.C. § 654 (a) (1). These allegations were repeated individually and separately for each of the 566 employees alleged to be exposed to the hazard of fire and explosion at that facility, and each of the 566 violations were alleged to be willful. The Secretary sought penalties in the amount of $5,660,000 for the violations of section 5 (a) (1). The Secretary further alleged serious violations of standards promulgated under the Act, for which she proposed an additional penalty of $6,200. Phillips contested all the citations in their entirety. Thereafter, the Secretary and Phillips entered into a settlement agreement, and Judge LaVecchia approved that settlement in his order which is now before us.

The settlement agreement essentially: 1) deletes the alleged willful characterization, 2) slightly reduces the penalty to be paid by Phillips, and 3) greatly extends the abatement periods for the violations. While the maximum abatement period specified in the citations and the Secretary's complaint was approximately ten months, the settlement agreement creates a graduated abatement schedule for several different Phillips worksites, including worksites other than the facility involved in the inspection and citations at issue here. Depending on the worksite, the prescribed abatement period varies from approximately three years to eight and one-half years from the date of a final Commission order.

The Secretary served a copy of the proposed settlement agreement on the labor unions representing Phillips' employees by facsimile transmission on August 21, 1991, only one day before the agreement was executed by the Secretary and Phillips. On August 23, 1991, the executed agreement was filed with the judge's office by mail and was received by the judge on August 20, 1991. The judge approved the agreement in an order dated September 5, 1991. There is no indication that the executed agreement was served on any of Phillips' unions.

On August 30, 1991, Local 4-227 of the Oil, Chemical and Atomic Workers International Union ("union"), one of the collective bargaining representatives for Phillips' employees, wrote to the Commission as follows:

Please be advised that we received the proposed settlement agreement...on August 21, 1991 and vigorously object to its entry.

On behalf of the [union], we object to the manner in which this is being settled. We have had insufficient time to study the document at length and further, object to:

1. The fact that the fines have been lowered;
2. A deletion of the willful violation findings;
3. The period of time with which Phillips is allowed to abate; and
4. Any further objections we may have to the findings once we have sufficient time to review our copy.

We construe this letter as a petition for discretionary review of the judge's order under Commission Rule 91 (b), 29 C.F.R. § 2200. 91 (b), which provides that "[a] party adversely affected or aggrieved by the decision of the Judge may seek review by the Commission by filing a petition for discretionary review."

It is well-settled that employees or their representatives, may object to settlement agreements solely on the ground that the abatement period specified in the agreement is unreasonable. General Electric Co., 14 BNA OSHC 1763, 1765, 1987-90 CCH OSHD ¶ 29,072, p. 38,849 (No. 88-2265, 1990). Since the union here is raising such an objection, and this is a significant case in which the parties to the settlement agreement have sought to greatly extend the abatement periods, we direct review in order to consider that objection. [[1]] Because Judge LaVecchia did not rule on the union's objections to the settlement agreement, and the objections raise factual issues regarding the reasonableness of the extended abatement periods set forth in the settlement agreement, we remand for development of the necessary factual record and determination of the merits of the union's objection to the abatement periods prescribed by the settlement agreement.

Furthermore, neither the parties to the settlement agreement nor Judge LaVecchia acted in accordance with the Commission's rules and case law regarding the procedures for allowing employees or their representatives to raise objections to settlement agreements. Rule 100 (c), 29 C.F.R. § 2200.100(c), provides, in pertinent part, as follows:

When a settlement agreement is filed with the Judge or the Executive Secretary, proof of service shall be filed with the settlement agreement, showing service upon all parties and authorized employee representatives... If the time has not expired under these rules for electing party status, or if party status has been elected, an order terminating the litigation before the Commission because of the settlement shall not be issued until at least ten days after service to consider any affected employee's or authorized employee representative's objection to the reasonableness of any abatement time.

The purpose of this rule is to ensure that employees or their representatives have the opportunity to present, and to have the judge consider, any objections they may have to the reasonableness of the abatement period in the settlement agreement before the agreement is approved. General Electric, 14 BNA OSHC at 1764, 1987-90 CCH OSHD at p. 38,849.

The record here fails to show that the executed copy of the settlement agreement was served on the union. [[2]] Furthermore, even assuming the union had been properly served, Judge LaVecchia failed to afford the union the full 10-day period prescribed by Rule 100 (c) for the filing of objections to the abatement period.

Under the Commission's rule regarding the computation of time, the period in which the union could file objections with the judge did not expire until at least September 9, 1991, and would not have expired until September 12, 1991 had the union been served by mail as was the judge. [[3]] Therefore, not only did the judge err by approving the settlement agreement in the absence of proof of service of the executed agreement on the union, but he also denied the union the opportunity to make known its objections to the settlement agreement in a manner consistent with the Commission's rules.[[4]]

We further note additional aspects of these cases that warrant the attention of the parties and the judge on remand. The Secretary has filed a motion requesting that the Commission remand these proceedings for the reasons that the union has raised an objection cognizable under the Act and the judge issued his order prematurely, grounds which we have addressed in this order. In that, motion, however, the Secretary also contends that the union has standing to challenge the extended abatement periods only for the particular worksite at which the inspection occurred. In the Secretary's view, the union may not object to the abatement periods prescribed in the settlement agreement for facilities that were not cited by the Secretary. We express no opinion on the merits of that contention at this time. On remand, the parties may present their arguments to the judge regarding the permissible scope of the union's objection to the time for abatement.[[5]]

In addition, although technically there are two consolidated cases before us at this time, Phillips' contest of the citations issued as a result of OSHA's inspection of the Pasadena facility, where the fire and explosion occurred, constitutes only one docket number, 90-1549. OSHA, nonetheless, also issued citations at another Phillips worksite known as the "Sweeny Complex," and these other citations are currently pending before Judge LaVecchia in docket no. 90-1271. The "Sweeny Complex" is one of the additional worksites encompassed in the settlement agreement at issue. Accordingly, regardless of the merits of the Secretary's argument that the union is not entitled to challenge the abatement dates set forth in the settlement agreement with respect to the Sweeny plant, the union conceivably may be entitled to dispute the abatement dates prescribed for the violations at issue in docket no. 90-1271.[[6]]

Judge LaVecchia previously granted the parties' joint motion to consolidate this proceeding with docket no. 90-1271. In order for any settlement agreement that may be approved on remand in docket no. 90-1549 to take effect, the two cases will of necessity have to be severed. Similarly, to the extent any settlement agreement approved in docket no. 90-1549 alone also disposes of any citation items at issue in docket no. 90-1271, those items would have to be severed from docket no. 90-1271 so that the settlement agreement could properly become a final order. See R & R Builders, Inc., 14 BNA OSHC 1844, 1987-90 CCH OSHD ¶ 29,105 (No. 88-282, 1990) (discussion of severance of citation items). On the other hand, the parties are of course free to enter into a single settlement agreement disposing of both docket numbers, in which event consolidation would continue to be appropriate.

We therefore instruct the judge on remand as follows: the judge is to issue a ruling on the extent to which the union may challenge the abatement periods specified in the settlement agreement after affording the parties, including the union, an opportunity to be heard on that question. Once the judge determines the permissible scope of the union's objections, the judge is then to make findings on the merits of those objections based on an appropriate evidentiary record. If he determines that the union's permissible objections are meritorious and that an abatement period shorter than that provided in the settlement agreement is appropriate, he is to enter an order disapproving the settlement agreement. On the other hand, if the judge finds that the abatement periods the union may properly dispute are reasonable, he is to approve the agreement. In that event, or in the event the Secretary and employer submit another settlement agreement to which the union does not object, the judge shall determine an appropriate disposition of docket no. 90-1271 in accordance with our remarks above. Finally, we emphasize that any subsequent settlement agreement submitted to the judge must be in compliance with the service requirements of Rule 100(c) and that any order by the judge approving such an agreement must afford the union the full 10-day period for making objections prescribed by Rule 100(c).

Accordingly, these cases are remanded for further proceedings consistent with this opinion. We also order that further proceedings be expedited, pursuant to Rule 103, 29 C.F.R. § 2200.103.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: September 25, 1991

LYNN MARTIN, Secretary of Labor,

United States Department of Labor,

Complainant,

v.

PHILLIPS 66 COMPANY,

Respondent.

OSHRC Docket
No. 90-1549

ORDER APPROVING SETTLEMENT AGREEMENT

A Stipulation and Settlement Agreement has been filed in this case which disposes of all issues pending before the Review Commission. Upon consideration, it is ORDERED:

1. The Stipulation and Settlement Agreement is approved and its terms are incorporated into this Order.

2. The citations are affirmed as modified in that Agreement.

Dated this 5th day of September, 1991.

JUDGE

LYNN MARTIN, Secretary of Labor,

United States Department of Labor,

Complainant,

v.

PHILLIPS 66 COMPANY,

Respondent.

OSHRC Docket

No. 90-1549

STIPULATION AND SETTLEMENT AGREEMENT

Phillips 66 Company ("Phillips") and Lynn Martin, Secretary of Labor, United States Department of Labor ("Secretary" or "OSHA"), in settlement of the captioned case, pursuant to 29 C.F.R. § 2200.100, hereby agree to the following. This Agreement disposes of any and all issues contained in that case.

1. To supplement and enhance existing safety practices and procedures, Phillips agrees to implement process safety management procedures at its Houston Chemical Complex ("HCC") pursuant to the terms of this Agreement. The goal of the process safety management system is to prevent the incidence and mitigate the consequences of uncontrolled releases of highly hazardous chemicals. The process safety management system shall: (1) provide a systematic approach to identifying, evaluating, and controlling hazards in the processes listed herein; (2) provide a management structure to address the findings of the process hazard analysis; (3) recommend corrective action; and (4) confirm and document completion or other disposition of recommended corrective actions. The core component of the process safety management system at HCC shall be a process hazard analysis for each process that has the potential for an uncontrolled release of highly hazardous chemicals, and separate process safety management analyses to assess factors bearing on the overall safety of the HCC. The processes subject to this Agreement are as follows: (1) polyethylene units; (2) developmental unit; (3) polypropylene unit; (4) K- Resin unit; and (5) neohexene unit.

2. The process hazard analysis shall be conducted by Phillips or under its direction utilizing a methodology that will best address the hazards of the particular process at issue. The process hazard analysis shall include, but not be confined to, (1) a human factors analysis of working conditions that may adversely impact the safety performance of HCC personnel and potentially contribute to accident event sequences, and (2) an analysis of the safety effectiveness of process hardware, piping, valving, and instrumentation, especially during maintenance operations or upset/emergency conditions. The process hazard analysis shall be performed by individuals with expertise in engineering and in process operations. The team shall include at least one person with experience and knowledge specific to the hazard or process under evaluation, and be led by an independent consultant. Such independent consultant has been retained by Phillips.

3. In addition to the process hazard analysis, Phillips will address the following issues in separate process safety management analyses to ensure that these areas conform with applicable OSHA standards or generally accepted industry practices: (a) the adequacy of its safety permit and hot work permit procedures, including enforcement; (b) compliance with OSHA's standard regarding lockout/tagout of energy sources during maintenance operations; (c) proper classification of hazardous locations and control over the introduction of ignition sources into such hazardous locations; (d) contingency planning for upset conditions and emergency response planning; (e) upset and emergency condition detection systems, and systems to mitigate the scale of hazardous chemical releases; (f) the siting, separation, design and configuration of physical facilities and equipment to ensure that the facilities are designed, maintained, inspected, tested and operated in a safe manner; (g) the training of operators, technicians, and maintenance personnel, including HAZCOM training; (h) the safety of existing Standard Operating Procedures and maintenance procedures; and (i) the assignment of authority and responsibility to identify and correct hazardous conditions.

4. Phillips agrees that the process safety management system will promptly address the findings of each process hazard analysis and process safety management analysis and develop appropriate recommendations. This management system shall (1) implement and document any actions taken pursuant to the process hazard/process safety management analyses; (2) communicate such actions to operations, maintenance or other personnel who work in the facility, including contractor employees whose working conditions are affected by the findings and recommendations of an analysis; and (3) assure that all corrective action is implemented according to this Agreement. Phillips management will prepare written responses to each process hazard analysis. If, upon consideration of the recommendations contained in the process hazard analysis, management determines that corrective action is required, that action will be taken. If management disagrees with a hazard assessment or recommendation contained in a process hazard analysis, the written response shall explain and justify the disagreement.

5. Within thirty (30) days after execution of this Agreement, Phillips shall provide the OSHA Houston Area Office with the name of a management contact person for HCC. The management contact person shall meet with the OSHA Houston Area Director within sixty (60) days thereafter, and as necessary to review actions planned or undertaken by HCC pursuant to this Agreement. Such meetings can be requested by OSHA or Phillips.

6. Phillips agrees to provide the OSHA Houston Area Office with a certified copy of the process hazard/process safety management analyses and any management responses thereto, and to review with OSHA any comments or recommendations it may have upon request.

7. Phillips agrees to conduct the process hazard/process safety management analyses required by this Agreement, provide copies of such analyses and management responses to OSHA, and address any recommended corrective actions contained in or arising from such analyses, in accordance with the following schedule:

8. If the schedule contained herein cannot be met, OSHA will not unreasonably deny a timely-filed petition for modification of abatement. 29 C.F.R. ¶ 1903.14a.

9. Phillips further agrees that on or before the scheduled completion date for each numbered task in Paragraph 7 above, it will transmit written verification to the OSHA Houston Area Office that the task has been completed as scheduled.

10. Phillips further agrees to provide to OSHA an evaluation, to be conducted by an independent consultant, of the adequacy of settling leg maintenance procedures performed while polyethylene reactors are in operation. This evaluation will be forwarded to the OSHA Houston Area Office no later than six (6) months from the date of a final Commission Order.

11. If OSHA disagrees with Phillips' determination of (1) the assessment of a process safety hazard, (2) the need for corrective action, or (3) an appropriate time frame for executing corrective action, OSHA will state its points of disagreement, and the reasons therefor, in writing so that Phillips may review them. OSHA and Phillips will then engage in good faith discussions to resolve the disagreement. This paragraph shall not limit OSHA's right to use, as appropriate, enforcement methods provided by the OSH Act.

12. Phillips agrees to develop and maintain a compilation of written safety information to enable Phillips and all exposed employees, including contractor employees, to identify and understand the specific hazards posed by the processes involving highly hazardous chemicals present at HCC. This safety information will be communicated to all exposed employees, including contractor employees, and shall describe the hazards of the highly hazardous chemicals used in the process, as well as information pertaining to the equipment and technology involved in the process. In addition, Phillips agrees to develop and implement written operating procedures to provide clear instructions for safely conducting process and maintenance operations consistent with the process safety information it develops. The steps required by this paragraph shall be completed within 90 days of the completion of the process hazard/process safety management analyses required under ¶ 7.

13. Phillips agrees to train each employee involved in a covered process or maintenance operation in an overview of the process and in pertinent operating procedures for that process. The training will emphasize the specific safety and health hazards of the process, and safe operating procedures and practices applicable to the process. Refresher and supplemental training shall be provided at least annually in the event the process does not undergo significant change, or concomitantly with any process change or modification to ensure understanding and adherence to the current operating procedures of the process or maintenance operation. Such training will be completed prior to assigning an employee to a process or maintenance operation.

14. Phillips agrees to inform any contractor performing work on, or near, a process, of the known potential fire, explosion or toxic release hazards related to the contractor's work and the process, and ensure that contractor employees are trained in the work practices and emergency procedures necessary to safely perform their job.

15. Phillips will implement a process safety management system at its Borger Refinery & NGL Process Center, Philtex/Ryton Complex, Sweeny Refinery & Petrochemical Complex, and Woods Cross Refinery in accordance with the terms and timetable provided in Appendix "A," which is incorporated herein by reference.

16. All documents or other information made available by Phillips under this Agreement shall be handled in accordance with Section 15 of the OSH Act, 29 U.S.C. § 644, 18 U.S.C.§ 1905, and 29 C.F.R. § 1903.9. Phillips will have the obligation to identify the document, information, or portion thereof that contains proprietary or confidential information.

17. OSHA agrees not to issue citations to Phillips for any working conditions identified in the process hazard analysis or any other analysis required by this Agreement, provided such conditions are being or will be addressed in good faith in accordance with this Agreement (including correction, if necessary). Phillips agrees to allow OSHA access to HCC to determine progress and compliance with this Agreement. OSHA agrees that, assuming good-faith implementation of this Agreement by Phillips, it shall not conduct general schedule inspections, except that OSHA may conduct monitoring inspections to determine compliance with this Agreement. OSHA retains the right to conduct all other types of inspections permitted under the OSH Act.

18. No later than six (6) months following Phillips' verification that it has completed all of the actions enumerated in Paragraphs 1 through 14 of this Agreement, OSHA shall return to Phillips all copies of Phillips' process hazard analyses, written management responses, and other safety analyses. OSHA shall not thereafter retain any such copies.

19. OSHA amends Citation No. 1, Inspection No. 106612433 issued April 19, 1990, to delete any characterization of the alleged violations contained therein.

20. Phillips agrees to pay the amount of FOUR MILLION DOLLARS ($4,000,000.00) in settlement of Citations Nos. 1 and 2, as amended, Inspection No. 106612443 issued April 19, 1990, within thirty (30) days of a final Order of the Commission.

21. The parties agree that this Settlement Agreement shall become the final Order of the Commission and an agreed Order is attached hereto. The terms hereof shall be subject to enforcement under § 11(b) of the Act. Phillips consents to the entry of such an Order by the Circuit Court of Appeals.

22. The parties agree that the Citation as amended and Notification of Proposed Penalty, Complaint, Answer, Stipulation and Settlement Agreement, Phillips' Notice of Contest, Phillips' failure to continue to contest, Phillips' abatement of the alleged violations, Phillips' payment provided herein and the Commission's Final Order entered herein shall not constitute any evidence or admission on the part of Phillips of any violation of the Occupational Safety and Health Act or regulations or standards promulgated thereunder. None of the foregoing shall be admitted into evidence, in whole or in part, in any proceeding or litigation in any court, agency or forum, except in proceedings brought directly under the Act by the Secretary. The contents of the Stipulation and Settlement Agreement are for the exclusive benefit of the parties hereto, and none of the foregoing constitute evidence or an admission on the part of Phillips that any of the conditions alleged in the Citations or Complaint existed or were a cause, proximate or otherwise, of any accident, or damages, if any, resulting therefrom. Phillips is entering into this Settlement Agreement without any prejudice to its rights to raise any defense or argument in any future or pending cases before the Commission or in any other proceedings, including but not limited to the right to assert that any future conditions identical or similar to those alleged in the original Citations or the Complaint do not violate the Occupational Safety and Health Act or any standard promulgated thereunder. By entering into this Settlement Agreement Phillips does not admit the truth of any alleged facts, any of the characterizations of Phillips' alleged conduct or any of the conclusions set forth in the Citations or Complaint issued in this matter regarding the standards cited therein.

23. Phillips certifies that the names and addresses of all authorized employee representatives of affected employees are:

Oil, Chemical and Atomic Workers
International Union, AFL-CIO
Local Union No. 4-227 (clerical group)
F.G. Bunch

Oil, Chemical and Atomic Workers
International Union, AFL-CIO
Local Union No. 4-227(clerical group)
Joe Campbell

Oil, Chemical and Atomic Workers
International Union, AFL-CIO
Local Union No. 4-227 (plant group)
B. G. Martinez

Oil, Chemical and Atomic Workers
International Union, AFL-CIO
Local Union No. 4-227 (plant group)
Joe Campbell

International Brotherhood of Electrical Workers
Local Union No. 716
G. G. Welch

International Brotherhood of Electrical Workers, AFL-CIO
J. D. Muhl

Phillips further certifies that there are no other unions representing affected employees except as set forth above.

24. The Secretary certifies that service of the fully executed Settlement Agreement was made on each authorized employee representative by facsimile transmission on August 21, 1991. Affected employees have not raised objections to the reasonableness of any abatement period specified herein.

25. Each party agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.

DATED August 22, 1991.
FOR PHILLIPS 66 COMPANY FOR U.S. DEPARTMENT OF LABOR
John VanBuskirk
Senior Vice President
ALAN C. McMILLAN
Deputy Assistant Secretary
Occupational Safety and Health Administration
Marion R. Froehlich
Counsel for Phillips 66 Company
ROBERT P. DAVIS Solicitor of Labor

JAMES E. WHITE
Regional Solicitor

JACK F. OSTRANDER
Counsel for Occupational Safety and Health

SUE ANN WOLFF
Senior Trial Attorney
BRIAN L. PUDENZ

JANICE L. HOLMES Trial Attorneys

APPENDIX "A" TO
STIPULATION AND SETTLEMENT AGREEMENT
BETWEEN PHILLIPS 66 COMPANY AND LYNN MARTIN,
SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR

Phillips 66 Company ("Phillips") and Lynn Martin, Secretary of Labor, United States Department of Labor ("Secretary" or "OSHA"), hereby agree to the following:

1. Phillips agrees to implement a process safety management system at its Borger Refinery & NGL Process Center, Philtex/Ryton Complex, Sweeny Refinery & Petrochemical Complex, and Woods Cross Refinery. This system will be a comprehensive process safety management system which includes but is not limited to the steps described in the Agreement to which this Appendix "A" is attached.

2. Phillips agrees to abide by the following timetable:

3. Complete process hazard/ process safety Four and one-half years from management analysis on the following same
units:

Philtex:

Dimethyl Sulfide Blending and Storage Methyl Mercaptan Reaction and Storage Propane Storage and Processing Butane Storage and Processing Anhydrous HCl Storage

4. Complete process hazard/process safety. Six and one-half years from same management analysis on the following units:

Cols. 104, 105, 108, 109, 111, 117 N-Butane Treater
2.1 Minalk Treater
13 Front end clean-up NGL Train Rack
NGL Truck Rack
Above Ground Propane Storage and Loading
RAW NGL Feed System
E/P Caverns and Handling
Propane Caverns and Handling
Above Ground IC4 Storage and Handling
Above Ground NC4 Storage and Handling
Isobutane Caverns and Handling N-Butane Caverns and Handling De-ethanized NGL Feed System Alky Feed Caverns and Handling Above Ground 1C5 Storage and Handling
Above Ground NC5 Storage and Handling

5. Complete actions recommended by  process hazard/process safety management analyses.
As soon as practicable, but within two years from completion of the process hazard/process safety management analysis on each unit

3. Upon request by OSHA, Phillips shall make available to OSHA any documents prepared pursuant to this Appendix "A" including verification of corrective actions taken.

4. The parties recognize that circumstances may cause delays to occur, such as construction or design problems and delays in obtaining necessary permits. If the timetable contained herein cannot be met, Phillips will communicate that information to OSHA including the reason (s) for the delay and the expected completion date (s). The parties agree that all undertakings by Phillips pursuant to this Appendix "A" are part of a settlement of a dispute between the parties and do not constitute an abatement of any unsafe condition.

5. All documents or other Information made available by Phillips under this Appendix shall be handled in accordance with Section 15 of the OSH Act, 29 U.S.C. § 644, 18 U.S.C. § 1905, and 29 C.F.R. § 1903.9. Phillips will have the obligation to identify the document, information, or portion thereof that contains proprietary or confidential information. No later than six (6) months following Phillips' verification that it has completed all of the actions enumerated herein, OSHA shall return to Phillips all copies of Phillips' process hazard/process safety management analyses, written management responses, and other safety analyses. OSHA shall not thereafter retain any such copies.

6. OSHA agrees not to issue citations to Phillips for any working conditions identified in the process hazard analysis or any other analysis required by this Appendix, provided such conditions are being or will be addressed in good faith in accordance with this Appendix (including correction, if necessary). Phillips agrees to allow OSHA access to the above facilities to determine progress and compliance with this Appendix. OSHA agrees that, assuming good-faith implementation of this Appendix by Phillips, it shall not conduct general schedule inspections, except that OSHA may conduct monitoring inspections to determine compliance with this Agreement. OSHA retains the right to conduct all other types of inspections permitted under the OSH Act.

DATED August 22, 1991.

FOOTNOTES:

[[1] ]We further construe the letter as a request for party status and we grant the request in accordance with Rule 20(a), 29 C.F.R. § 2200.20 (a): "Affected employees and authorized employee representatives, by notice of election filed at least ten days before the hearing, may elect party status concerning any matter in which the Act confers a right to participate." The record does not reflect that any hearing date was set in these proceedings.

[[2]] Although the union here was not a party when the settlement agreement was executed, Rule 100 (c) nevertheless is intended to ensure that all employee representatives have notice of the terms of a settlement agreement. Therefore, even non-party employee representatives are entitled to be served with a copy of the executed settlement agreement. General Electric Co., 14 BNA OSHC 1763, 1764 n.2, 1987-90 CCH OSHD ¶ 29,072, p. 38,849 n.2 (No. 88-2265, 1990); General Motors Corp., Delco Electronics Div., 14 BNA OSHC 1753, 1987-90 CCH OSHD ¶ 29,069 (No. 88-1112, 1990).

[[3]] Commission Rule 4 is as follows:

§ 2200.4 Computation of time.

(a) Computation. In computing any period of time prescribed or allowed in these rules, the day from which the designated period begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or Federal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or Federal holiday. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and Federal holidays shall be excluded from the computation.

Under this rule, assuming a service date of August 23, 1991, the 10-day period allowed by Rule 100(c) for the filing of objections by the union would not have expired until September 9, not counting intermediate weekend days and the Federal holiday of September 2, 1991. In addition, Rule 4(b), 29 C.F.R, § 2200.4(b), provides that where a document is served by mail, three days shall be added to the period prescribed for filing a response.

[[4]] We note that the union filed its letter of August 30, 1991 with the Commission rather than with the judge, contrary to Rule 8, 29 C.F.R. § 2200.8, which requires that after a case is assigned to a Judge and until the judge's decision is docketed with the Commission, all documents shall be filed with the judge. While we do not excuse the union's violation of our rules, the record reflects that the Executive Secretary for the Commission sent the union's letter back to the judge's office, where it was received on September 11, 1991. Accordingly, had the judge waited until September 12, 1991, the expiration of the 10-day period allowing for service of the settlement agreement on the union by mail, he would have received the union's objection in time to consider that objection before issuing an order.

[[5]] It is unclear at this time what position the Secretary would take with respect to approval of the settlement agreement in the event the judge were to accept the Secretary's argument that the union's right to challenge the abatement period is limited to the period for abating the hazard at the cited plant. However, insofar as the Secretary may be suggesting that the portion of the settlement agreement prescribing abatement periods for the other facilities should be approved regardless of any objections by the union, we emphasize that a judge is not empowered to excise provisions from a settlement agreement and approve the agreement only in part. John Deere Foundry, 9 BNA OSHC 1351, 1981 CCH OSHD ¶ 25,218 (No. 78-5498, 1981) (consolidated) (selective approval of a settlement agreement may not reflect the intent of the parties to the agreement).

[[6]] We do not know whether the union has elected or may be entitled to elect party status in docket no. 90-1271 as the representative for affected employees at the Sweeny facility. We also do not know whether the citations in docket no. 90-1271 involve the same hazards or working conditions as those covered by the settlement agreement here.