“SECRETARY OF LABOR,Complainant,v.PHILLIPS 66 COMPANY,Respondent.OIL, CHEMICAL AND ATOMIC WORKERSINTERNATIONAL UNION, LOCAL 4-227,Authorized EmployeeRepresentative.Docket No. 90-1271 & 90-1549(Consolidated)_DIRECTION FOR REVIEW AND ORDER_An order of Administrative Law Judge Louis G. LaVecchia approving asettlement agreement between the Secretary of Labor and Respondent,Phillips 66 Company (\”Phillips\”), is hereby directed for review undersection 12 (j) of the Occupational Safety and Health Act of 1970, 29U.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 orderand remand for further proceedings.Following an explosion and fire at Phillips’ petrochemical facility inPasadena, Texas, the Secretary, through the Occupational Safety andHealth Administration (\”OSHA\”), conducted a lengthy inspection resultingin the issuance of a citation setting forth detailed and complexallegations of violations of section 5 (a) (1) of the Act, 29 U.S.C. ?654 (a) (1). These allegations were repeated individually and separatelyfor each of the 566 employees alleged to be exposed to the hazard offire and explosion at that facility, and each of the 566 violations werealleged to be willful. The Secretary sought penalties in the amount of$5,660,000 for the violations of section 5 (a) (1). The Secretaryfurther alleged serious violations of standards promulgated under theAct, for which she proposed an additional penalty of $6,200. Phillipscontested all the citations in their entirety. Thereafter, the Secretaryand Phillips entered into a settlement agreement, and Judge LaVecchiaapproved that settlement in his order which is now before us.The settlement agreement essentially: 1) deletes the alleged willfulcharacterization, 2) slightly reduces the penalty to be paid byPhillips, and 3) greatly extends the abatement periods for theviolations. While the maximum abatement period specified in thecitations and the Secretary’s complaint was approximately ten months,the settlement agreement creates a graduated abatement schedule forseveral different Phillips worksites, including worksites other than thefacility involved in the inspection and citations at issue here.Depending on the worksite, the prescribed abatement period varies fromapproximately three years to eight and one-half years from the date of afinal Commission order.The Secretary served a copy of the proposed settlement agreement on thelabor unions representing Phillips’ employees by facsimile transmissionon August 21, 1991, only one day before the agreement was executed bythe Secretary and Phillips. On August 23, 1991, the executed agreementwas filed with the judge’s office by mail and was received by the judgeon August 20, 1991. The judge approved the agreement in an order datedSeptember 5, 1991. There is no indication that the executed agreementwas served on any of Phillips’ unions.On August 30, 1991, Local 4-227 of the Oil, Chemical and Atomic WorkersInternational Union (\”union\”), one of the collective bargainingrepresentatives for Phillips’ employees, wrote to the Commission as follows:Please be advised that we received the proposed settlementagreement…on August 21, 1991 and vigorously object to its entry.On behalf of the [union], we object to the manner in which this is beingsettled. We have had insufficient time to study the document at lengthand 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; and4. Any further objections we may have to the findings once we havesufficient time to review our copy.We construe this letter as a petition for discretionary review of thejudge’s order under Commission Rule 91 (b), 29 C.F.R. ? 2200. 91 (b),which provides that \”[a] party adversely affected or aggrieved by thedecision of the Judge may seek review by the Commission by filing apetition for discretionary review.\”It is well-settled that employees or their representatives, may objectto settlement agreements solely on the ground that the abatement periodspecified in the agreement is unreasonable. _General Electric Co., _14BNA 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 asignificant case in which the parties to the settlement agreement havesought to greatly extend the abatement periods, we direct review inorder to consider that objection. [[1]] Because Judge LaVecchia did notrule on the union’s objections to the settlement agreement, and theobjections raise factual issues regarding the reasonableness of theextended abatement periods set forth in the settlement agreement, weremand for development of the necessary factual record and determinationof the merits of the union’s objection to the abatement periodsprescribed by the settlement agreement.Furthermore, neither the parties to the settlement agreement nor JudgeLaVecchia acted in accordance with the Commission’s rules and case lawregarding the procedures for allowing employees or their representativesto 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 ExecutiveSecretary, proof of service shall be filed with the settlementagreement, showing service upon all parties and authorized employeerepresentatives… If the time has not expired under these rules forelecting party status, or if party status has been elected, an orderterminating the litigation before the Commission because of thesettlement shall not be issued until at least ten days after service toconsider any affected employee’s or authorized employee representative’sobjection to the reasonableness of any abatement time.The purpose of this rule is to ensure that employees or theirrepresentatives have the opportunity to present, and to have the judgeconsider, any objections they may have to the reasonableness of theabatement period in the settlement agreement before the agreement isapproved. _General Electric, _14 BNA OSHC at 1764, 1987-90 CCH OSHD atp. 38,849.The record here fails to show that the executed copy of the settlementagreement was served on the union. [[2]] Furthermore, even assuming theunion had been properly served, Judge LaVecchia failed to afford theunion the full 10-day period prescribed by Rule 100 (c) for the filingof objections to the abatement period.Under the Commission’s rule regarding the computation of time, theperiod in which the union could file objections with the judge did notexpire until at least September 9, 1991, and would not have expireduntil September 12, 1991 had the union been served by mail as was thejudge. [[3]] Therefore, not only did the judge err by approving thesettlement agreement in the absence of proof of service of the executedagreement on the union, but he also denied the union the opportunity tomake known its objections to the settlement agreement in a mannerconsistent with the Commission’s rules.[[4]]We further note additional aspects of these cases that warrant theattention of the parties and the judge on remand. The Secretary hasfiled a motion requesting that the Commission remand these proceedingsfor the reasons that the union has raised an objection cognizable underthe Act and the judge issued his order prematurely, grounds which wehave addressed in this order. In that, motion, however, the Secretaryalso contends that the union has standing to challenge the extendedabatement periods only for the particular worksite at which theinspection occurred. In the Secretary’s view, the union may not objectto the abatement periods prescribed in the settlement agreement forfacilities that were not cited by the Secretary. We express no opinionon the merits of that contention at this time. On remand, the partiesmay present their arguments to the judge regarding the permissible scopeof the union’s objection to the time for abatement.[[5]]In addition, although technically there are two consolidated casesbefore us at this time, Phillips’ contest of the citations issued as aresult of OSHA’s inspection of the Pasadena facility, where the fire andexplosion occurred, constitutes only one docket number, 90-1549. OSHA,nonetheless, also issued citations at another Phillips worksite known asthe \”Sweeny Complex,\” and these other citations are currently pendingbefore Judge LaVecchia in docket no. 90-1271. The \”Sweeny Complex\” isone of the additional worksites encompassed in the settlement agreementat issue. Accordingly, regardless of the merits of the Secretary’sargument that the union is not entitled to challenge the abatement datesset forth in the settlement agreement with respect to the Sweeny plant,the union conceivably may be entitled to dispute the abatement datesprescribed for the violations at issue in docket no. 90-1271.[[6]]Judge LaVecchia previously granted the parties’ joint motion toconsolidate this proceeding with docket no. 90-1271. In order for anysettlement agreement that may be approved on remand in docket no.90-1549 to take effect, the two cases will of necessity have to besevered. Similarly, to the extent any settlement agreement approved indocket no. 90-1549 alone also disposes of any citation items at issue indocket no. 90-1271, those items would have to be severed from docket no.90-1271 so that the settlement agreement could properly become a finalorder. _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 singlesettlement agreement disposing of both docket numbers, in which eventconsolidation would continue to be appropriate.We therefore instruct the judge on remand as follows: the judge is toissue a ruling on the extent to which the union may challenge theabatement periods specified in the settlement agreement after affordingthe parties, including the union, an opportunity to be heard on thatquestion. Once the judge determines the permissible scope of the union’sobjections, the judge is then to make findings on the merits of thoseobjections based on an appropriate evidentiary record. If he determinesthat the union’s permissible objections are meritorious and that anabatement period shorter than that provided in the settlement agreementis appropriate, he is to enter an order disapproving the settlementagreement. On the other hand, if the judge finds that the abatementperiods the union may properly dispute are reasonable, he is to approvethe agreement. In that event, or in the event the Secretary and employersubmit 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 thatany subsequent settlement agreement submitted to the judge must be incompliance with the service requirements of Rule 100(c) and that anyorder by the judge approving such an agreement must afford the union thefull 10-day period for making objections prescribed by Rule 100(c).Accordingly, these cases are remanded for further proceedings consistentwith this opinion. We also order that further proceedings be expedited,pursuant to Rule 103, 29 C.F.R. ? 2200.103.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: September 25, 1991————————————————————————LYNN MARTIN, Secretary of Labor,United States Department of Labor,Complainant,v.PHILLIPS 66 COMPANY,Respondent.OSHRC DocketNo. 90-1549_ORDER APPROVING SETTLEMENT AGREEMENT_A Stipulation and Settlement Agreement has been filed in this case whichdisposes of all issues pending before the Review Commission. Uponconsideration, it is ORDERED:1. The Stipulation and Settlement Agreement is approved and its termsare 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 DocketNo. 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 settlementof the captioned case, pursuant to 29 C.F.R. ? 2200.100, hereby agree tothe following. This Agreement disposes of any and all issues containedin that case.1. To supplement and enhance existing safety practices and procedures,Phillips agrees to implement process safety management procedures at itsHouston Chemical Complex (\”HCC\”) pursuant to the terms of thisAgreement. The goal of the process safety management system is toprevent the incidence and mitigate the consequences of uncontrolledreleases of highly hazardous chemicals. The process safety managementsystem 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 processhazard analysis; (3) recommend corrective action; and (4) confirm anddocument completion or other disposition of recommended correctiveactions. The core component of the process safety management system atHCC shall be a process hazard analysis for each process that has thepotential for an uncontrolled release of highly hazardous chemicals, andseparate process safety management analyses to assess factors bearing onthe overall safety of the HCC. The processes subject to this Agreementare 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 underits direction utilizing a methodology that will best address the hazardsof the particular process at issue. The process hazard analysis shallinclude, but not be confined to, (1) a human factors analysis of workingconditions that may adversely impact the safety performance of HCCpersonnel 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 operationsor upset\/emergency conditions. The process hazard analysis shall beperformed by individuals with expertise in engineering and in processoperations. The team shall include at least one person with experienceand knowledge specific to the hazard or process under evaluation, and beled by an independent consultant. Such independent consultant has beenretained by Phillips.3. In addition to the process hazard analysis, Phillips will address thefollowing issues in separate process safety management analyses toensure that these areas conform with applicable OSHA standards orgenerally accepted industry practices: (a) the adequacy of its safetypermit and hot work permit procedures, including enforcement; (b)compliance with OSHA’s standard regarding lockout\/tagout of energysources during maintenance operations; (c) proper classification ofhazardous locations and control over the introduction of ignitionsources into such hazardous locations; (d) contingency planning forupset conditions and emergency response planning; (e) upset andemergency condition detection systems, and systems to mitigate the scaleof hazardous chemical releases; (f) the siting, separation, design andconfiguration of physical facilities and equipment to ensure that thefacilities are designed, maintained, inspected, tested and operated in asafe manner; (g) the training of operators, technicians, and maintenancepersonnel, including HAZCOM training; (h) the safety of existingStandard Operating Procedures and maintenance procedures; and (i) theassignment of authority and responsibility to identify and correcthazardous conditions.4. Phillips agrees that the process safety management system willpromptly address the findings of each process hazard analysis andprocess safety management analysis and develop appropriaterecommendations. This management system shall (1) implement and documentany actions taken pursuant to the process hazard\/process safetymanagement analyses; (2) communicate such actions to operations,maintenance or other personnel who work in the facility, includingcontractor employees whose working conditions are affected by thefindings and recommendations of an analysis; and (3) assure that allcorrective action is implemented according to this Agreement. Phillipsmanagement will prepare written responses to each process hazardanalysis. If, upon consideration of the recommendations contained in theprocess hazard analysis, management determines that corrective action isrequired, that action will be taken. If management disagrees with ahazard assessment or recommendation contained in a process hazardanalysis, the written response shall explain and justify the disagreement.5. Within thirty (30) days after execution of this Agreement, Phillipsshall provide the OSHA Houston Area Office with the name of a managementcontact person for HCC. The management contact person shall meet withthe OSHA Houston Area Director within sixty (60) days thereafter, and asnecessary to review actions planned or undertaken by HCC pursuant tothis Agreement. Such meetings can be requested by OSHA or Phillips.6. Phillips agrees to provide the OSHA Houston Area Office with acertified copy of the process hazard\/process safety management analysesand any management responses thereto, and to review with OSHA anycomments or recommendations it may have upon request.7. Phillips agrees to conduct the process hazard\/process safetymanagement analyses required by this Agreement, provide copies of suchanalyses and management responses to OSHA, and address any recommendedcorrective actions contained in or arising from such analyses, inaccordance with the following schedule:\tTask \tCompletion Date1. \tIdentify process hazard\/process safetymanagement analysis staff. \t30 days from date of finalCommission Order2. \tComplete process hazard\/processsafety management analyses. \t1 year from same3. \tProvide OSHA Houston Area Officewith process hazard\/process safetymanagement analyses. \tI year from same4. \tProvide OSHA Houston Area Officewith management responses. \t30 days from completion ofanalyses5. \tComplete actions recommended byprocess hazard\/process safetymanagement analyses. \tAs soon as practicable, butwithin 2 years from completionof Step 28. If the schedule contained herein cannot be met, OSHA will notunreasonably 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 completiondate for each numbered task in Paragraph 7 above, it will transmitwritten verification to the OSHA Houston Area Office that the task hasbeen completed as scheduled.10. Phillips further agrees to provide to OSHA an evaluation, to beconducted by an independent consultant, of the adequacy of settling legmaintenance procedures performed while polyethylene reactors are inoperation. This evaluation will be forwarded to the OSHA Houston AreaOffice no later than six (6) months from the date of a final CommissionOrder.11. If OSHA disagrees with Phillips’ determination of (1) the assessmentof a process safety hazard, (2) the need for corrective action, or (3)an appropriate time frame for executing corrective action, OSHA willstate its points of disagreement, and the reasons therefor, in writingso that Phillips may review them. OSHA and Phillips will then engage ingood faith discussions to resolve the disagreement. This paragraph shallnot limit OSHA’s right to use, as appropriate, enforcement methodsprovided by the OSH Act.12. Phillips agrees to develop and maintain a compilation of writtensafety information to enable Phillips and all exposed employees,including contractor employees, to identify and understand the specifichazards posed by the processes involving highly hazardous chemicalspresent at HCC. This safety information will be communicated to allexposed employees, including contractor employees, and shall describethe hazards of the highly hazardous chemicals used in the process, aswell as information pertaining to the equipment and technology involvedin the process. In addition, Phillips agrees to develop and implementwritten operating procedures to provide clear instructions for safelyconducting process and maintenance operations consistent with theprocess safety information it develops. The steps required by thisparagraph shall be completed within 90 days of the completion of theprocess hazard\/process safety management analyses required under ? 7.13. Phillips agrees to train each employee involved in a covered processor maintenance operation in an overview of the process and in pertinentoperating procedures for that process. The training will emphasize thespecific safety and health hazards of the process, and safe operatingprocedures and practices applicable to the process. Refresher andsupplemental training shall be provided at least annually in the eventthe process does not undergo significant change, or concomitantly withany process change or modification to ensure understanding and adherenceto the current operating procedures of the process or maintenanceoperation. Such training will be completed prior to assigning anemployee to a process or maintenance operation.14. Phillips agrees to inform any contractor performing work on, ornear, a process, of the known potential fire, explosion or toxic releasehazards related to the contractor’s work and the process, and ensurethat contractor employees are trained in the work practices andemergency procedures necessary to safely perform their job.15. Phillips will implement a process safety management system at itsBorger Refinery & NGL Process Center, Philtex\/Ryton Complex, SweenyRefinery & Petrochemical Complex, and Woods Cross Refinery in accordancewith the terms and timetable provided in Appendix \”A,\” which isincorporated herein by reference.16. All documents or other information made available by Phillips underthis Agreement shall be handled in accordance with Section 15 of the OSHAct, 29 U.S.C. ? 644, 18 U.S.C.? 1905, and 29 C.F.R. ? 1903.9. Phillipswill have the obligation to identify the document, information, orportion thereof that contains proprietary or confidential information.17. OSHA agrees not to issue citations to Phillips for any workingconditions identified in the process hazard analysis or any otheranalysis required by this Agreement, provided such conditions are beingor will be addressed in good faith in accordance with this Agreement(including correction, if necessary). Phillips agrees to allow OSHAaccess to HCC to determine progress and compliance with this Agreement.OSHA agrees that, assuming good-faith implementation of this Agreementby Phillips, it shall not conduct general schedule inspections, exceptthat OSHA may conduct monitoring inspections to determine compliancewith this Agreement. OSHA retains the right to conduct all other typesof inspections permitted under the OSH Act.18. No later than six (6) months following Phillips’ verification thatit has completed all of the actions enumerated in Paragraphs 1 through14 of this Agreement, OSHA shall return to Phillips all copies ofPhillips’ process hazard analyses, written management responses, andother safety analyses. OSHA shall not thereafter retain any such copies.19. OSHA amends Citation No. 1, Inspection No. 106612433 issued April19, 1990, to delete any characterization of the alleged violationscontained 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) daysof a final Order of the Commission.21. The parties agree that this Settlement Agreement shall become thefinal Order of the Commission and an agreed Order is attached hereto.The terms hereof shall be subject to enforcement under ? 11(b) of theAct. Phillips consents to the entry of such an Order by the CircuitCourt of Appeals.22. The parties agree that the Citation as amended and Notification ofProposed Penalty, Complaint, Answer, Stipulation and SettlementAgreement, Phillips’ Notice of Contest, Phillips’ failure to continue tocontest, Phillips’ abatement of the alleged violations, Phillips’payment provided herein and the Commission’s Final Order entered hereinshall not constitute any evidence or admission on the part of Phillipsof any violation of the Occupational Safety and Health Act orregulations or standards promulgated thereunder. None of the foregoingshall be admitted into evidence, in whole or in part, in any proceedingor litigation in any court, agency or forum, except in proceedingsbrought directly under the Act by the Secretary. The contents of theStipulation and Settlement Agreement are for the exclusive benefit ofthe parties hereto, and none of the foregoing constitute evidence or anadmission on the part of Phillips that any of the conditions alleged inthe Citations or Complaint existed or were a cause, proximate orotherwise, of any accident, or damages, if any, resulting therefrom.Phillips is entering into this Settlement Agreement without anyprejudice to its rights to raise any defense or argument in any futureor pending cases before the Commission or in any other proceedings,including but not limited to the right to assert that any futureconditions identical or similar to those alleged in the originalCitations or the Complaint do not violate the Occupational Safety andHealth Act or any standard promulgated thereunder. By entering into thisSettlement Agreement Phillips does not admit the truth of any allegedfacts, any of the characterizations of Phillips’ alleged conduct or anyof the conclusions set forth in the Citations or Complaint issued inthis matter regarding the standards cited therein.23. Phillips certifies that the names and addresses of all authorizedemployee representatives of affected employees are:Oil, Chemical and Atomic WorkersInternational Union, AFL-CIOLocal Union No. 4-227 (clerical group)F.G. BunchOil, Chemical and Atomic WorkersInternational Union, AFL-CIOLocal Union No. 4-227(clerical group)Joe CampbellOil, Chemical and Atomic WorkersInternational Union, AFL-CIOLocal Union No. 4-227 (plant group)B. G. MartinezOil, Chemical and Atomic WorkersInternational Union, AFL-CIOLocal Union No. 4-227 (plant group)Joe CampbellInternational Brotherhood of Electrical WorkersLocal Union No. 716G. G. WelchInternational Brotherhood of Electrical Workers, AFL-CIOJ. D. MuhlPhillips further certifies that there are no other unions representingaffected employees except as set forth above.24. The Secretary certifies that service of the fully executedSettlement Agreement was made on each authorized employee representativeby facsimile transmission on August 21, 1991. Affected employees havenot raised objections to the reasonableness of any abatement periodspecified herein.25. Each party agrees to bear its own fees and other expenses incurredby such party in connection with any stage of this proceeding.DATED August 22, 1991.FOR PHILLIPS 66 COMPANY FOR U.S. DEPARTMENT OF LABORJohn VanBuskirkSenior Vice PresidentALAN C. McMILLANDeputy Assistant SecretaryOccupational Safety and Health AdministrationMarion R. FroehlichCounsel for Phillips 66 CompanyROBERT P. DAVIS Solicitor of LaborJAMES E. WHITERegional SolicitorJACK F. OSTRANDERCounsel for Occupational Safety and HealthSUE ANN WOLFFSenior Trial AttorneyBRIAN L. PUDENZJANICE L. HOLMES Trial Attorneys————————————————————————APPENDIX \”A\” TOSTIPULATION AND SETTLEMENT AGREEMENTBETWEEN PHILLIPS 66 COMPANY AND LYNN MARTIN,SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABORPhillips 66 Company (\”Phillips\”) and Lynn Martin, Secretary of Labor,United States Department of Labor (\”Secretary\” or \”OSHA\”), hereby agreeto the following:1. Phillips agrees to implement a process safety management system atits Borger Refinery & NGL Process Center, Philtex\/Ryton Complex, SweenyRefinery & Petrochemical Complex, and Woods Cross Refinery. This systemwill be a comprehensive process safety management system which includesbut is not limited to the steps described in the Agreement to which thisAppendix \”A\” is attached.2. Phillips agrees to abide by the following timetable:Task \tCompletion Date1. Identify process hazard\/process safetymanagement analysis staff. \t30 days from date of final ReviewCommission Order2. Complete process hazard\/process safetymanagement analysis on the followingunits: \tTwo and one-half years from dateof final Review CommissionOrderSweeny: \t26.1 \tARDS Unit, A Train30 \tHF Alkylation Unit26.1 \tARDS Unit, Trains A and B28.1 \tDEA Regenerators and SourWater Strippers28.2 \tSulfur Unit15 \tHexane Isom3 \tFCC Unit4 \tFCC Gas Plant27.1 \tHOC Unit27.2 \tHOC Gas Plant43 \tCopper Treater10ABC \tNGL Fractionation17 \tLight Aromatics Recovery19 \tBenzene HydrogenationBorger \t43 \tSulfur Recoverv Unit22 \tHF Alkylation9 \tCrude Unit10 \tCrude Unit34 \tSulfur Recovery Unit42 \tARDS11 \tEthane Recovery Unit29 \tCat Cracker28 \tCrude Unit40 \tCat Cracker35 \tAmine Treater & H2S Dryers41 \tHydrogen Unit44 \tAmine & Sour Water Treater6 \tHexane IsomPhiltex:Propylene Unloading and StorageH2S SystemSO2 Unloading and StorageButadiene Unloading and StorageWoods Cross:7 \tHF Alkylation10 \tSolvent Deasphalting11 \tStraight Run Gas Plant62 \tPropane Pit3. Complete process hazard\/ process safety Four and one-half years frommanagement analysis on the following sameunits:Sweeny: \t15 \tBenzene Hydrogenation56 \tWaste Water System22 \tEthylene PlantI0D \tNGL Fractionation21 \tNGL Fractionation11 \tCatalytic Reformer14 \tCatalytic Reformer24 \tEthylene Plant18 \tPropylene Fractionation7 \tHeavy Aromatics Recovery26.2 \tHydrogen Purification Unit20 \tPentane Isomerization25.2 \tDistillate HDSBorger: \t19.2 \tReformer7 \tReformer2.2 \tNGL HDS19.1 \tNaphtha HDS19.3 \tDistillate HDS36 \tHDS Treater1.6 \tPropane Treater4 \tButane Isom5 \tPentane Isom6 \tBenzene Hydrogenation26 \tLight End Recovery & Alky\tFeed TreaterPhiltex:Dimethyl Sulfide Blending and Storage Methyl Mercaptan Reaction andStorage Propane Storage and Processing Butane Storage and ProcessingAnhydrous HCl StorageWoods Cross:4 \tTCC6 \tReformer12 \tNHDS68 \tPressurized HC Storage86 \tPressurized HC TruckLoading\/Unloading87 \tPressurized HC RailroadLoading\/Unloading5 \tVacuum8 \tCrude13 \tC5\/C6 Isomerization4. Complete process hazard\/process safety. Six and one-half years fromsame management analysis on the following units:Sweeny \t62 \tClemens Terminal68 \tSweeny Tank Farm, #1Pumphouse88 \tFreeport Terminal #189 \tSan Bernard Terminal86 \tTruck Loading Rack87 \tTank Car Loading Rack6 \tMTBE Unit and HydroisomUnit58 \tPipelines25 \tCrude Unit9 \tCrude Unit51 \tSteam Plants52 \tWater Treater90 \tJones Creek Terminal92 \tFreeport Terminal #2 Borger: \t12 \tPantex Cryogenic Gas PlantNo. 7 \tCols. 35-42, 45No. 1 \tCols. 7, 9-12No. 1 \tCols. 13-17No. 4 \tCols. 23-27No. 4 \tCols. 18-22No. 6 \tCols. 28-3423 \tStraight Run FractionatorCols. 104, 105, 108, 109, 111, 117 N-Butane Treater2.1 Minalk Treater13 Front end clean-up NGL Train RackNGL Truck RackAbove Ground Propane Storage and LoadingRAW NGL Feed SystemE\/P Caverns and HandlingPropane Caverns and HandlingAbove Ground IC4 Storage and HandlingAbove Ground NC4 Storage and HandlingIsobutane Caverns and Handling N-Butane Caverns and HandlingDe-ethanized NGL Feed System Alky Feed Caverns and Handling Above Ground1C5 Storage and HandlingAbove Ground NC5 Storage and Handling5. Complete actions recommended by process hazard\/process safetymanagement analyses.As soon as practicable, but within two years from completion of theprocess hazard\/process safety management analysis on each unit3. Upon request by OSHA, Phillips shall make available to OSHA anydocuments prepared pursuant to this Appendix \”A\” including verificationof corrective actions taken.4. The parties recognize that circumstances may cause delays to occur,such as construction or design problems and delays in obtainingnecessary 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 partiesagree that all undertakings by Phillips pursuant to this Appendix \”A\”are part of a settlement of a dispute between the parties and do notconstitute an abatement of any unsafe condition.5. All documents or other Information made available by Phillips underthis Appendix shall be handled in accordance with Section 15 of the OSHAct, 29 U.S.C. ? 644, 18 U.S.C. ? 1905, and 29 C.F.R. ? 1903.9. Phillipswill have the obligation to identify the document, information, orportion thereof that contains proprietary or confidential information.No later than six (6) months following Phillips’ verification that ithas completed all of the actions enumerated herein, OSHA shall return toPhillips all copies of Phillips’ process hazard\/process safetymanagement analyses, written management responses, and other safetyanalyses. OSHA shall not thereafter retain any such copies.6. OSHA agrees not to issue citations to Phillips for any workingconditions identified in the process hazard analysis or any otheranalysis required by this Appendix, provided such conditions are beingor will be addressed in good faith in accordance with this Appendix(including correction, if necessary). Phillips agrees to allow OSHAaccess to the above facilities to determine progress and compliance withthis Appendix. OSHA agrees that, assuming good-faith implementation ofthis Appendix by Phillips, it shall not conduct general scheduleinspections, except that OSHA may conduct monitoring inspections todetermine compliance with this Agreement. OSHA retains the right toconduct 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 andwe grant the request in accordance with Rule 20(a), 29 C.F.R. ? 2200.20(a): \”Affected employees and authorized employee representatives, bynotice of election filed at least ten days before the hearing, may electparty status concerning any matter in which the Act confers a right toparticipate.\” The record does not reflect that any hearing date was setin these proceedings.[[2]] Although the union here was not a party when the settlementagreement was executed, Rule 100 (c) nevertheless is intended to ensurethat all employee representatives have notice of the terms of asettlement agreement. Therefore, even non-party employee representativesare entitled to be served with a copy of the executed settlementagreement. _General Electric Co.,_ 14 BNA OSHC 1763, 1764 n.2, 1987-90CCH OSHD ? 29,072, p. 38,849 n.2 (No. 88-2265, 1990); _General MotorsCorp., 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 allowedin these rules, the day from which the designated period begins to runshall not be included. The last day of the period so computed shall beincluded unless it is a Saturday, Sunday or Federal holiday, in whichevent the period runs until the end of the next day which is not aSaturday, Sunday, or Federal holiday. When the period of time prescribedor allowed is less than 11 days, intermediate Saturdays, Sundays andFederal holidays shall be excluded from the computation.Under this rule, assuming a service date of August 23, 1991, the 10-dayperiod allowed by Rule 100(c) for the filing of objections by the unionwould not have expired until September 9, not counting intermediateweekend 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 isserved by mail, three days shall be added to the period prescribed forfiling a response.[[4]] We note that the union filed its letter of August 30, 1991 withthe 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 anduntil the judge’s decision is docketed with the Commission, alldocuments shall be filed with the judge. While we do not excuse theunion’s violation of our rules, the record reflects that the ExecutiveSecretary for the Commission sent the union’s letter back to the judge’soffice, where it was received on September 11, 1991. Accordingly, hadthe judge waited until September 12, 1991, the expiration of the 10-dayperiod allowing for service of the settlement agreement on the union bymail, he would have received the union’s objection in time to considerthat objection before issuing an order.[[5]] It is unclear at this time what position the Secretary would takewith respect to approval of the settlement agreement in the event thejudge were to accept the Secretary’s argument that the union’s right tochallenge the abatement period is limited to the period for abating thehazard at the cited plant. However, insofar as the Secretary may besuggesting that the portion of the settlement agreement prescribingabatement periods for the other facilities should be approved regardlessof any objections by the union, we emphasize that a judge is notempowered to excise provisions from a settlement agreement and approvethe agreement only in part. _John Deere Foundry,_ 9 BNA OSHC 1351, 1981CCH OSHD ? 25,218 (No. 78-5498, 1981) (consolidated) (selective approvalof a settlement agreement may not reflect the intent of the parties tothe agreement).[[6]] We do not know whether the union has elected or may be entitled toelect party status in docket no. 90-1271 as the representative foraffected employees at the Sweeny facility. We also do not know whetherthe citations in docket no. 90-1271 involve the same hazards or workingconditions as those covered by the settlement agreement here.”