On Appeal from the Occupational Safety and Health Review Commission (OSHRC Docket No. 07-1045)
The opinion of the court was delivered by: Garth, Circuit Judge:
Before: SLOVITER, FUENTES and GARTH, Circuit Judges.
In this appeal, although ConocoPhillips Bayway Refinery is the real party in interest, we are asked to decide between different interpretations of agency regulations-the one announced by the Secretary of Labor, the other by the Occupational Safety and Health Review Commission. Both entities are part and parcel of the Department of Labor. In this appeal, because two factions within the same government agency disagree with each other over the application of a standard, we are thrust into resolving what is essentially an internal dispute. We do so here, and hold that the Secretary's interpretation comports with the standard we established in Secretary of Labor v. Trinity Industries, 504 F.3d 397 (3d Cir. 2007).*fn1
The Secretary of Labor ("Secretary") petitioned this Court to challenge the determination of the Occupational Safety and Health Review Commission ("Commission") that nine asbestos violations by ConocoPhillips Bayway Refinery ("Conoco") were "not serious" rather than "serious" under 29 U.S.C. § 666. The Secretary originally cited Conoco for nine "serious" violations of the asbestos in construction standard, 29 C.F.R. § 1926.1100, under the Occupational Safety and Health Act ("Act"), 29 U.S.C. §§ 651-678. The Administrative Law Judge ("ALJ") affirmed all of the violations and upheld the classification of the violations as "serious." The Commission thereafter reduced the classification of the nine violations to "other-than-serious," in part because the Secretary failed to present case-specific evidence of possible employee exposure to asbestos.
We conclude that the Commission misapplied this Court‟s precedent in Secretary of Labor v. Trinity Industries, 504 F.3d 397 (3d Cir. 2007). We will therefore vacate the Order of the Commission, and remand to the Commission with the direction that the citations be affirmed as "serious" and that the penalty for the violations be reconsidered.
Pursuant to the Act, the Secretary shall promulgate occupational safety and health standards. 29 U.S.C. § 655.*fn2
The Occupational Safety and Health Administration ("OSHA"), an agency within the Department of Labor, helps the Secretary promulgate these standards. OSHA regulates asbestos exposure at 29 C.F.R. §§ 1926.1101 (construction standard) and 1910.1001 (industry standard), and has determined that asbestos is a harmful substance. E.g. Occupational Exposure to Asbestos, Tremolite, Anthophyllite, and Actinolite, 51 Fed. Reg. 22,647-48, 22,698 (June 20, 1986) (to be codified at 29 C.F.R. pt. 1910); Occupational Exposure to Asbestos, 59 Fed. Reg. 40,967, 40,979 (Aug. 10, 1994) (to be codified at 29 C.F.R. pt. 1910).
The construction standard ("Standard"), the regulation at issue in this case, prescribes certain protective requirements based on the measurable concentration of asbestos fibers to which employees are or may be exposed, and contains a second set of specific requirements that apply regardless of the level of exposure.
The Standard sets a permissible exposure limit (PEL) of 0.1 fiber per
cubic centimeter of air (f/cc), and imposes certain assessment and
monitoring requirements to ensure that no employee is exposed to an
airborne concentration of asbestos in excess of this limit.*fn3
29 C.F.R. § 1926.1101(c). This PEL represents the lowest
exposure level that can be reliably measured. 59 Fed. Reg. 40,967. The
Standard recognizes a significant risk even under a PEL of 0.1, and in
order to reduce that risk to the extent practicable, the Standard has
taken an approach of adding certain protective provisions based on the
kind of operations being regulated. 59 Fed. Reg. 40,968. See also id.
40,967 (acknowledging that the 0.1 f/cc level "leaves a remaining
significant risk"). Additionally, measured levels of exposure "often
fail to define risk," and with regard to removal work (the type of
work at issue in this case), "highly variable amounts of asbestos are
generated." Id. 40,968. Therefore, the Standard requires such
employees to be protected in order to assure each asbestos worker is
exposed to the lowest feasible level. Id. The mandated work practices
are important because they "assure that each asbestos worker is
exposed to the lowest feasible level." Id. 40,969. "The operations for
which mandatory work practices are required would otherwise result in employee exposure that is
The Standard classifies asbestos work activities into four classes, of which only Class I and Class II are relevant in this appeal.
Class I asbestos work refers to activities involving the removal of TSI (thermal system insulation), surfacing ACM (asbestos containing material) and PACM (presumed asbestos containing material). 29 C.F.R. § 1926.1101(b).
Class II asbestos work consists of the removal of ACM which is neither TSI nor surfacing material-for example, asbestos-containing wallboard, floor tile and sheeting and construction mastics. Id.
The work at issue in this case falls into Class II. Protective requirements for Class II work include: the establishment of a regulated area (§ 1926.1101(e)(1)); the use of respirators (§ 1926.1101(h)); in the absence of a negative exposure assessment, the use of protective clothing (§ 1926.1101(i)(1)); and training of employees (§ 1926.1101(k)(9)(iv)(C)).
All employers with workplaces covered by the Standard must conduct an initial exposure assessment before or at the beginning of an operation to ascertain expected exposures of asbestos. 29 C.F.R. § 1926(f)(2). For Class I asbestos work, "until the employer conducts exposure monitoring and documents that employees on that job will not be exposed in excess of the PELs," the employer shall presume that employees are exposed in excess of the limit. Id. § 1926(f)(2)(ii).
Violations of OSHA standards are characterized as "willful," "repeated," "serious," or "not serious" (referred to by the Commission as "other-than-serious"). See 29 ...