Third Circuit Overrules Commission On Proof of Exposure in Asbestos Cases

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The Occupational Safety and Health Review Commission abused its discretion when it reduced the secretary of labor's asbestos-exposure citations against ConocoPhillips from serious to other-than-serious, a federal appeals court ruled Aug. 16 (Secretary of Labor v. ConocoPhillips Bayway Refinery, 3rd Cir., No. 10-2893, 8/16/11).

According to the U.S. Court of Appeals for the Third Circuit in Philadelphia, the commission reduced the citation against ConocoPhillips because the Labor Department did not present case-specific evidence that employees were exposed to asbestos. In vacating the commission's ruling, the appeals court stated that the department did not have to present such evidence.

Following an inspection of a ConocoPhillips refinery in Linden, N.J., the Occupational Safety and Health Administration cited the employer for nine serious violations of the asbestos standard, 29 C.F.R. 1926.1101, based on an incident in which employees partially removed a gas pipe installed in the early 1950s without taking proper precautions against asbestos exposure.

Citations Reduced by Commission

An OSHRC administrative law judge affirmed the Labor Department citations and set a $16,875 penalty. ConocoPhillips appealed to the commission, which reduced the citations to other-than-serious and the penalty to $3,150 (40 OSHR 542, 6/24/10; 23 OSHC 1137). The secretary of labor appealed to the Third Circuit.

Two types of asbestos-removal work were implicated in the case, the court said.

Class I refers to activities involving removal of thermal system insulation, surfacing material containing asbestos, and presumed asbestos-containing material.

Class II refers to removal of asbestos-containing material that is neither insulation nor surfacing material, such as wallboard and tile. The work at ConocoPhillips was Class II work.

Sides Debate What Must Be Shown

In its ruling, the commission noted that it was undisputed that a tar-like coating around the pipe at issue contained between 2 and 25 percent asbestos. However, it said the secretary of labor must show how the work the employees did around the pipe could have exposed them to harmful amounts of asbestos. The Labor Department countered that it need not make such a showing because there is a presumption under the regulations that Class II work exposes employees to significant amounts of asbestos.

The court's reasoning was guided by its 2007 decision in Secretary of Labor v. Trinity Industries Inc. (21 OSHC 2161). That case also involved a reclassification of a serious citation to other-than-serious, an appeal by the secretary of labor, and the Third Circuit's restoring the citations to serious.

Trinity, however, involved Class I work, and that was how the commission distinguished that case from the one involving ConocoPhillips.

Commission Ruling Contrary to Earlier Ruling

The court countered that the commission's ruling was contrary to the holding in Trinity. That case, in the court's words, “placed no emphasis on the type of work involved.”

Class I work presumes that employees are exposed to concentrations of asbestos that are over the permissible exposure limits. Class II work can still lead to asbestos exposure, even if the concentration is below the permissible exposure limit.

“Trinity’s standard only requires that there could be exposure to asbestos that is substantially probable to lead to serious harm,” the court ruled. “Applying this standard, Conoco's violations were ‘serious.’ ”

Further, the court wrote that the commission reasoned that the regulations do not spell out how far below permissible exposure limits a risk extends and so, according to the commission, there was a possibility that the work at ConocoPhillips’ refinery did not expose employees to a harmful amount of asbestos, meaning that the Labor Department did not meet its burden.

Harmful Exposure May Have Occurred

The court turned this argument around, saying that the commission, “by its own holding, admits that there is a possibility that the work may have actually exposed employees to a harmful level of asbestos, which is all that this Court's standard requires.”

The court then set out a rule that “demonstrating the possibility of harmful exposure to asbestos does not require case-specific evidence under this court's standard, where the Secretary demonstrates that (1) employees engaged in a particular type of asbestos work, (2) the work at issue is presumed to generate significant employee exposure to asbestos under the regulations, (3) the employer had actual or constructive knowledge of the violative conditions, and (4) regulations were violated.”

Finally, the court answered ConocoPhillips’ argument that this rule could mean almost any violation where harmful asbestos is present could lead to a serious violation with four points.

First, Class II work is limited to cases in which materials contain more than 1 percent asbestos, and the secretary of labor must demonstrate in each case that exposure could occur. Second, the secretary has already indicated that certain violations related to recordkeeping and housekeeping may not be classified as serious. Third, the secretary must always show that the employer had actual or constructive knowledge that violative conditions existed. Fourth, while the secretary need not offer case-specific evidence of potential exposure, the employer is always welcome to offer evidence that there was no possibility of exposure in any given case.

The court vacated the commission's decision and remanded the case with the direction that the commission affirm the citations as serious and reconsider an appropriate penalty.

By David Schwartz

The appeals court decision in Secretary of Labor v. ConocoPhillips Bayway Refinery is available at http://op.bna.com/env.nsf/r?Open=sbra-8ktnft .