SECRETARY OF LABOR,
Complainant,

v.

CONSOLIDATED RAIL CORPORATION
Respondent.

OSHRC DOCKET No. 81-1025

ORDER

The parties' settlement agreement is approved.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  JUL I7 1984


RAYMOND J. DONOVAN, SECRETARY OF LABOR,
Complainant,

v.

CONSOLIDATED RAIL CORPORATION
Respondent.

OSHRC DOCKET No. 81-1025

SETTLEMENT AGREEMENT
Raymond J. Donovan, Secretary of Labor, United States Department of Labor ("Secretary" or "OSHA"), and the Consolidated Rail Corporation ("Conrail"), by and through their attorneys hereby stipulate and agree as follows:

I.  Background
On March 27, 1981, the Secretary issued two citations charging Conrail with a serious violation of 29 CFR 1910.132(a) and a willful violation of 29 CFR 1910.134(a)(2).   Penalties totaling $3690.00 were proposed for the violations.  Following a hearing on the matter, Commission Administrative Law Judge Fier affirmed both citations as serious violations and assessed a penalty totaling $1540.00.  Conrail's petition for discretionary review followed and was granted by the Commission on April 1, 1982.

The central point of contention in this matter concerned the need for appropriate protective equipment including full body protective clothing and self-contained breathing apparatus for use in emergency situations.  Although both the Secretary and Conrail maintain that the positions they advanced before Judge Fier were correct, each agrees that reason and common sense dictate that the dispute be resolved without further adjudication.

To this end, the parties have agreed that any possible hazards confronting employees in Conrail's railyard during an emergency situation (such as a release of hazardous materials) may be significantly reduced through an adequately communicated and enforced workrule requiring employees to vacate the area any time a release of hazardous materials is suspected.  In conformity with the agreements described herein, and in furtherance of the best interest of Conrail's employees, the parties agree as follows:

II.  Resolution of the Citations
1.  Citation No. 1, 29 CFR 1910.132(a)
Item 1a (failure to provide full body protective clothing for use in emergency situations).  Complainant hereby withdraws this citation.
2.  Citation No. 2, 29 CFR 1910.134(a)(2)
Item la (failure to provide self-contained breathing apparatus respirators for use in emergency situations).  Complainant hereby amends this item to allege a serious violation and proposes a penalty of $500.00.  Respondent hereby withdraws its notice of contest to this item as amended.  Respondent agrees to abate this item in the manner specified at section III herein.

III.  Abatement Measures for Citation No. 2
The Secretary and Conrail agree that this item is to be abated through the implementation of an employee training and education program which specifies that whenever a release of hazardous materials is suspected, employees must vacate the area.  This program will be periodically presented to all Conrail employees working in Conrail's Edgemoor classification facility.  The program consists of:

1.  A visual slide presentation entitled "Operation Eye".   (A copy of the narrative accompanying this slide presentation is attached hereto and incorporated herein as Exhibit A).
2.  A written safety rule (attached hereto and incorporated herein as Exhibit B) which will be incorporated into Conrail's Safety Rulebook.

This program will be effectively communicated to employees and adequately enforced through a system of discipline outlined in Conrail's Safety Rulebook.  It is understood that periodically changes may be made to the slide presentation to keep it current without changing the substance of the presentation.

IV.  General Provisions
As part of this Settlement Agreement, Conrail promises to pay the above penalties in the amount of $500.00.

Respondent and complainant agree that each party shall bear its own costs.

Respondent agrees to post this Settlement Agreement in accordance with Commission Rule 7.

WHEREFORE, based on the foregoing Settlement Agreement, the parties stipulate that this action should be and hereby is dismissed.

LINTON W. HENGERER
Attorney For Complainant
U.S. Department of Labor

JOHN R. JENCHURA
Attorney for Respondent
Conrail Legal Department

The Administrative Law Judge decision in this format is unavailable in this matter.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).