“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79-5772-P INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 August 29, 1980DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Thiscase is before the Commission for review pursuant to section 12(j), 29 U.S.C. ?\u00a0661(i),of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?theAct?). A joint stipulation and settlement agreement entered into by Petitioner,Independence Foundry & Manufacturing Company, Inc. (?Independence?), andthe Secretary of Labor (?the Secretary?) was approved ?with the exception ofthe exculpatory language in paragraph 4? by Administrative Law Judge VernonRiehl. Commissioner Barnako granted a petition for review of the judge?s orderfiled by Independence. Before us is the issue of whether the judge erred inissuing an order approving a settlement agreement while rejecting one specificprovision of that settlement. For the reasons which follow, the stipulation andsettlement agreement filed by the parties is approved.??????????? Independence?s?gray iron? foundry was inspected on September 29, 1975. As a result of thatinspection two citations were issued. Citation 1, alleging a serious violationof 29 C.F.R. ?\u00a01910.95,[1] was issued on October 7,1975, and citation 2, alleging, among other things, a nonserious violation of29 C.F.R. ? 1910.1000,[2] was issued on October 30,1975. These citations set October 6, 1976, and March 6, 1976, as abatementdates for the alleged noise and silica dust violations respectively.Independence did not contest either citation. On October 12, 1976, theSecretary issued an amended citation changing both the noise and silica dustcitations so as to extend the abatement period to October 6, 1977. Similarly,on November 3, 1977, abatement was extended to January 6, 1978; on February 2,1978, it was extended to March 6, 1978; on April 12, 1978, it was extended toSeptember 1, 1978; and, on September 22, 1978, it was extended to September 1,1979.[3]??????????? OnAugust 3, 1979, Independence filed with the OSHA Area Director a letterrequesting abatement extensions to September 1, 1980 for both violations.Independence?s request was forwarded by the Secretary to the Commission onOctober 3, 1979, at which time it was accompanied by the Secretary?s motion foradditional time to respond to the request. The Secretary?s submission was docketedby the Commission as a contested petition for modification of abatementpursuant to Commission Rule 34(d), 29 C.F.R. ? 2200.34(d),[4] and the case was assignedto Administrative Law Judge Riehl on December 3, 1979. The judge received anexecuted stipulation and settlement agreement on March 3, 1980, and on March13, 1980, issued his order approving the agreement ?with the exception of theexculpatory language in paragraph 4.?[5]??????????? Basedupon the record in this case Respondent?s August 3, 1979, petition for modificationof abatement dates was timely filed. Having previously received five amendedcitations, each extending the time to abate, Independence acted with reasonablereliance on the past extensions in concluding that it had until extend the timefor abatement to September its August 3, 1979, petition to extend the time forabatement to September 1, 1980, was timely filed under Commission Rule 34(c),29 C.F.R. ? 2200.34(c).[6] Further, we deem theSecretary?s action of forwarding Independence?s petition to the Commissionalong with his motion for additional time to respond as an objection to thepetition pursuant to Commission Rule 34(d), supra. Cf., Amoco Chemicals Corp.,80 OSAHRC ??, 8 BNA OSHC 1085, 1980 CCH OSHD ?24,253 (No. 79?4874?P, 1980)(Secretary?s response to a petition for modification of abatement stating alack of sufficient data to object to or concur in petition is objection withinthe meaning of Commission Rule 34(d)).??????????? TheCommission has held that it would be unfair to a respondent for the Commissionto abrogate one term of an agreement while leaving the remainder intact. SeaboardCoast Line Railroad Co., 76 OSAHRC 125\/G4, 3 BNA OSHC 1760, 1975?76 CCHOSHD ?20,184 (No. 10541, 1975), appeal dismissed, No. 76?1058 (D.C. Cir.March 15, 1976); Cf. Connecticut Aersols, Inc., 80 OSAHRC ??, 8 BNA OSHC1052, 1980 CCH OSHD ?24,257 (No. 78?25, 1980) (Commission, having authorityover only parts of a settlement agreement, declined to approve those partsbecause such action might not reflect intent of the parties). The judge,therefore, erred in issuing an order approving of the settlement agreementwhile rejecting a provision in the agreement that contained exculpatorylanguage. In any event, since the issuance of the judge?s decision in thiscase, the Commission has held that settlement agreements which meet therequirements set out in Dawson Brothers-Mechanical Contractors, 72OSAHRC 5\/B8, 1 BNA OSHC 1024, 1971?73 CCH OSHD ?15,039 (No. 12, 1972), as adoptedby Commission Rule 100,[7] will be approved by theCommission even if they contain exculpatory language. Farmer?s ExportCompany, 80 OSAHRC ??, 8 BNA OSHC 1655, 1980 CCH OSHD ?24,569 (No. 78?1708,1980).??????????? CommissionRule 100, which essentially codifies the criteria set forth in DawsonBrothers-Mechanical Contractors, supra, provides, in pertinent part, asfollows:?Rule 100 Settlement.(b) Requirements. Every settlementproposal submitted to the Judge or Commission shall include, where applicable,the following:?(1) A motion to amend or withdraw a citation,notification of proposed penalty, notice of contest, or petition formodification of abatement;?(2) A statement that payment of thepenalty has been tendered or a statement of a promise to pay; and?(3) A statement that the cited conditionhas been abated or a statement of the date by which abatement will beaccomplished.?(c) Filing; service and notice. When asettlement proposal is filed with the Judge or Commission, it shall also beserved upon represented and unrepresented affected employees in the mannerprescribed for notices of contest in ? 2200.7. Proof of service shall accompanythe settlement proposal. A settlement proposal shall not be approved until atleast 10 days following service of the settlement proposal on affected employees.???????????? Thesettlement agreement in this case essentially complies with the criteria setforth in Commission Rule 100. The agreement includes (a) the Secretary?sstatement that he does not object to the petition for modification of theabatement date to September 1, 1980, (b) a statement that a copy of theagreement has been served on the authorized representative of affectedemployees and posted at the workplace, and (c) a statement that the partiesagree to the entry of a final order establishing September 1, 1980, as theabatement date. Moreover, this agreement is not clearly repugnant to the Act?sobjective and provisions.[8]??????????? Accordingly,the judge?s decision is set aside and the settlement agreement submitted by theparties is approved.?SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: AUG 29, 1980\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79-5772-P INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 March 13, 1980ORDER??????????? Theattached joint stipulation and settlement agreement, filed March 3, 1980, andmade a part hereof by reference, is before me for approval.??????????? Theagreement is therefore approved with the exception of the exculpatory languagein paragraph 4. Said language is not approved because it extends thejurisdiction of this Court.??????????? Respondentis given until September 1, 1980, to be in abatement as per their letter August3, 1979.?Date: March 13, 1980?Vernon RiehlJudge, OSHRCAttachment?STIPULATION AND SETTLEMENT AGREEMENT??????????? RayMarshall, Secretary of Labor, United States Department of Labor, hereinafterreferred to as the ?Secretary?, and Independence Foundry and Manufacturing Co.,hereinafter referred to as the ?Petitioner,? stipulate and agree as follows:??????????? 1.Based upon an evaluation of the factors upon which abatement dates aredetermined, and the specific situation of the Petitioner in the above captionedmatter, the Secretary does not object to Petitioner?s petition to modify theabatement date in the above-captioned matter to September 1, 1980.??????????? 2.Petitioner hereby states that in support of the Secretary?s determination notto object to Petitioner?s petition for modification of abatement dates itagrees as follows:(a) That attached hereto as Appendix A isPetitioner?s Standard Operating Procedure for Selection and Use of Respiratorsat Petitioner?s plant. The procedure constitutes Petitioner?s respiratoryprotection program required under OSHA rules for employee personal protectiveequipment. This procedure shall be maintained and enforced until economicallyand operationally feasible administrative or engineering controls can beimplemented which will abate the violation alleged in item 1, citation number2, CSHO No. M2882, dated October 30, 1975. As of the date of the signing byPetitioner of this Stipulation and Settlement Agreement, Petitioner states thatit has no knowledge of any economically or operationally feasibleadministrative or engineering controls that can be implemented that will abatethe above-stated violation. Present affected employees of Petitioner shall beinstructed and trained in the proper use and limitations of respirators withintwo (2) weeks of the date this Stipulation and Settlement Agreement is signedby Petitioner. New affected employees shall be instructed and trained in theproper use and limitations of respirators within one (1) week from the datetheir status as an affected employee commences. Repeated instruction andreminders regarding the use and limitations of respirators shall be given.(b) That during the month of June, 1980,an appropriate inspection of work area conditions and degree of employeeexposure or stress shall be made and a written report of the same shall beprepared and sent to the Occupational Safety and Health Administration. Anappropriate inspection shall be a review of work area conditions regardingsilica dust and a review of the effectiveness of the Petitioner?s respiratoryprotection program with regard to such dust.(c) That every twelve (12) months, on adate selected by the Petitioner (unless the Petitioner?s physician determinesmore frequent review is necessary), all persons regularly working in a jobrequiring the use of respirators pursuant to this program will be examined bythe Petitioner?s physician to determine the person?s continued ability to performthe work while wearing a respirator. The employee will be advised of theresults of these examinations.?(d)That Petitioner shall on an annual basis engage in an inspection of work areaconditions and degree of employee silica exposure. The Petitioner shallmaintain a separate file containing the information obtained from theinspection, and a copy of the same shall be provided the Occupational Safetyand Health Administration. Modifications of the procedure attached hereto asAppendix A shall be made as is determined is necessary from the inspection. Allsuch modifications shall be reported to the Occupational Safety and HealthAdministration. Any modifications shall be properly announced and explained toall affected employees.(e) That protection against the effects ofnoise exposure shall be provided at no cost to employees.(f) That attached hereto as Appendix B isPetitioner?s Standard Operating Procedure for Selection and Use of HearingProtection Devices at Petitioner?s plant. The procedure constitutesPetitioner?s hearing conservation program required under OSHA rules foremployee personal protective equipment. This procedure shall be maintained andenforced until economically and operationally feasible administrative orengineering controls can be implemented which will abate the violation allegedin item 1 of citation number 1, CSHO No. M2882 issued October 7, 1975. As ofthe date of the signing by Petitioner of this Stipulation and SettlementAgreement, Petitioner states that it has no knowledge of any economically oroperationally feasible administrative or engineering controls that can beimplemented that will abate the afore-stated violation. Present affectedemployees shall be instructed and trained in the proper use and limitations ofthe hearing protective devices provided within two (2) weeks of the date thisStipulation and Settlement Agreement is signed by Petitioner. New affectedemployees shall be instructed and trained in the proper use and limitations ofthe hearing protective devices within one (1) week from the date their statusas an affected employee commences. Repeated instructions and remindersregarding the use and limitations of the hearing protective devices shall begiven.(g) That every twelve (12) months on adate selected by the Petitioner an audiogram will be obtained for each personregularly assigned in the jobs listed in paragraph 2 of Appendix B and for allpersons who on a regular basis work for a meaningful period of time in areas inor around the work areas of the listed jobs. The result of the examination willbe provided the employee. Retesting and\/or referral to an otolaryngologist orqualified physician shall be done when a significant shift in hearing occurs. A?significant shift in hearing? is equal to or greater than a -20db shift at anyfrequency from the previous year?s test results of that employee.(h) That Petitioner shall on an annualbasis engage in an inspection of work area conditions and degree of employeenoise exposure. The Petitioner shall maintain a separate file containing theinformation obtained from the inspection, and a copy of the same shall be providedthe Occupational Safety and Health Administration. Modifications of theprocedure attached hereto as Appendix B shall be made as is determined from theinspection. All such modifications shall be reported to the Occupational Safetyand Health Administration. Any modifications shall be properly announced andexplained to all affected employees.(i) For the purposes of this Stipulationand Settlement Agreement, the term ?affected employees? shall mean thosepersons regularly assigned to a job covered by the applicable OperatingProcedure.??????????? 3.Respondent and Petitioner agree that the procedures set forth in paragraph 2above and Appendices A and B shall constitute adequate interim controls undercitation number 2, CSHO No. M2882 item 1 issued October 30, 1975 and citationnumber 1, CSHO No. M2882 issued October 7, 1975, during the abatement extensionperiod during which any available economically and operationally feasibleadministrative or engineering controls shall be commenced or implemented thatwill abate the aforementioned violations.??????????? 4.Petitioner states affirmatively that the instant Stipulation and SettlementAgreement is being entered into solely in the spirit of conciliation and toavoid protracted and expensive litigation. Any admissions contained herein aresolely for the purpose of reaching settlement of this case and shall not beconstrued as an admission by Petitioner in any Court of law or equity or forany purposes whatsoever? excepting and limited to any subsequent OSHAproceeding regarding Petitioner.??????????? 5.Petitioner states that affected employees are represented by InternationalMolders and Allied Workers Union and its Local 162, and that a copy of thisStipulation and Settlement Agreement will be served on the Union, c\/o RobertMcMiller by prepaid, first-class mail on February 29, 1980. Petitioner alsostates that a copy of this Stipulation and Settlement Agreement was posted atPetitioner?s workplace on February 29, 1980 at a place where it may be viewedby its employees.??????????? 6.The Secretary and Petitioner agree that based upon the foregoing representationof Petitioner an order may be entered allowing a modification of abatement datein the above-captioned matter to September 1, 1980, be entered as a final orderof the Commission.?Dated this 27 day of February,1980?Watson,Ess, Marshall & EnggasByLeonard Singer 1006 Grand Avenue Kansas City, Missouri 64106Attorneysfor Petitioner?CarinAnn Clauss Solicitor of LaborTedrickA. Housh, Jr. Regional SolicitorJamesR. Cato AttorneyRoom2106, 911 Walnut StreetKansasCity, Missouri 64106(816)374?6441?Attorneysfor Ray Marshall,?Secretaryof Labor, United?StatesDepartment of Labor?NOTICE TO EMPLOYEES OR EMPLOYEEREPRESENTATIVE??????????? Ifyou have any comments on the settlement agreement entered into by the partieshereto, you may submit them within ten days of service or posting of thestipulation to:Judge Vernon G. Riehl?OccupationalSafety and Health Review Commission1114Market Street, Room 606St.Louis, Missouri 63101?orto:TedrickA. Housh, Jr.RegionalSolicitorU.S.Department of Labor911Walnut Street, Suite 2106KansasCity, Missouri 64106???????????? Acopy of such comments must be served on the persons who signed the attachedstipulation and settlement agreement.?Appendix ASTANDARD OPERATING PROCEDURE FOR SELECTIONAND USE OF RESPIRATORS AT INDEPENDENCE FOUNDRY AND MANUFACTURING COMPANY??????????? 1.The Company selects respirators on the basis of the known needs of theworkforce. The selection of OSHA-approved respirators or respirators approvedby another appropriate body shall be made in all cases.??????????? 2.Persons performing the following jobs shall wear respirators while working:(a) Grinders(b) Shake-out Helpers(c) Mullor Operators(d) Pit Cleaners(e) Any other function wherein OSHAstandards require such personal protective equipment??????????? 3. Ifthe Company provides reusable respirators, the following procedures will befollowed:(a) Where practicable, the respiratorsshould be assigned to individual workers for their exclusive use;(b) Respirators will be regularly cleanedand disinfected. Those issued for the exclusive use of one worker should becleaned after each day?s use, or more often if necessary. Those used by morethan one worker shall be thoroughly cleaned and disinfected after each use;(c) Respirators shall be stored in aconvenient clean and sanitary location;(d) Respirators shall be inspected duringcleaning. Worn or deteriorated parts shall be replaced.??????????? 4.Supervisors are responsible for requiring employees who should wear respiratorsunder this program to wear the respirator properly. Supervisors will makerandom inspections of employee respirator use.?Appendix BSTANDARD OPERATING PROCEDURE FOR SELECTIONAND USE OF HEARING PROTECTION DEVICES OF INDEPENDENCE FOUNDARY ANDMANUFACTURING COMPANY??????????? 1.The Company selects personal protective hearing devices (?devices?) on thebasis of known needs of the workforce. The selection of OSHA approved devicesor such devices approved by another appropriate body shall be made in allcases.??????????? 2.Persons working in the following jobs shall wear hearing protection deviceswhile working:(a) Automatic Molding Machine Operators(b) Jolt Squeeze Machine Operators(c) Grinders(d) Shake-out Helpers(e) Blast Machine Operators(f) Inspectors(g) Mullor Operators(h) Or other functions wherein OSHAstandards require such personal protective equipment.??????????? 3.Where insert earplugs or custom-molded hearing protection devices other thanself-fitted, malleable plugs are utilized, individual employee fitting shall beconducted by a trained person.??????????? 4.Each person regularly assigned to a job in which it is required by this programto use a hearing protection device shall be instructed regarding the use of thehearing protection device. Follow-up instruction or reminders will occurregarding the use of hearing protection devices.??????????? 5.Supervisors are responsible for requiring employees who should wear hearingprotection devices under this program to wear the hearing protection devicesproperly. Supervisors will make random inspections of employees using hearingprotection devices.??????????? 6.Within six months of the date of assignment or the commencement of regular workin the specified job, a baseline audiogram will be obtained for all employeeswho, at the time of hire, are assigned to the jobs listed in paragraph 2 andfor all employees who on a regular basis work for a meaningful period.[1] This standardessentially seeks to protect employees from exposure to excessive noise levels.[2] This standardessentially seeks to protect employees from exposure to excessiveconcentrations of airborne silica dust.[3] Although therecord is not clear as to the procedure by which the abatement dates wereextended, we construe the amended citations to be abatement extensions undersection 10(c) of the Act because the Secretary cannot amend a citation that hasbecome a final order.[4] This Ruleprovides as follows:?2200.34 Petitions for modification of abatement period.(d)Where any petition is objected to by the Secretary or affected employees, suchpetition shall be processed as follows:(1)The petition, citation and any objections shall be forwarded to the Commissionwithin three (3) working days after the expiration of the fifteen (15) dayperiod set out in paragraph (c)(4).(2)The Commission shall docket and process such petitions as expedited proceedingsas provided for in ? 2200.101 of this Part.(3)An employer petitioning for a modification of abatement period shall have theburden of proving in accordance with the requirements of 29 U.S.C. ? 659(c),that such employer has made a good faith effort to comply with the abatementrequirements of the citation and that abatement has not been completed becauseof factors beyond the employer?s control.(4)Within ten (10) working days after the receipt of notice of the docketing bythe Commission of any petition for modification of abatement date, eachobjecting party shall file a response setting forth the reasons for opposingthe granting of a modification date different from that requested in thepetition.[5] Paragraph 4 ofthe agreement states:4.Petitioner states affirmatively that the instant Stipulation and SettlementAgreement is being entered into solely in the spirit of conciliation and toavoid protracted and expensive litigation. Any admissions contained herein aresolely for the purpose of reaching settlement of this case and shall not beconstrued as an admission by Petitioner in any Court of law or equity or forany purposes whatsoever, excepting and limited to any subsequent OSHAproceeding regarding Petitioner.[6] Rule 34(c)provides, in pertinent part:Apetition for modification of abatement date shall be filed . . . no later thanthe close of the next working day following the date on which abatement wasoriginally required.[7] 29 C.F.R. ?2200.100. This Rule was revised by the Commission on December 5, 1979. 44 Fed.Reg. 70106, 70112 (1979).[8] None of theexculpatory language contained in the settlement agreement attempts to precludeor limit the use of the agreement in any future proceeding under the Act.Accordingly, for the reasons set forth in Part I of his dissenting opinion inFarmer?s Export Co., supra, Commissioner Cottine concurs in vacating thejudge?s order before us. Commissioner Cottine also concurs in the Commission?sapproval of the settlement because it complies with the requirements set forthin Dawson Brothers and Commission Rule 100, 29 C.F.R. ? 2200.100, and issufficiently detailed and comprehensive to allow the Commission to make thenecessary initial determinations that the agreement furthers the publicinterest and is consistent with the provisions and objectives of the Act. SeeBoston Gear, A Div. of Murray Co. of Texas, Inc., ?? OSAHRC ??, 7 BNA OSHC1414, 1979 CCH OSHD ?23,595 (No. 76?967, 1979) (dissenting opinion), and WesternElectric Co., Inc., 78 OSAHRC 98\/A2, 7 BNA OSHC 1020, 1978 CCH OSHD ?23,158(No. 1536, 1980) (dissenting opinion).”