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Secretary of Labor v. ConocoPhillips Bayway Refinery

ELR Citation: 41 ELR 20266
Nos. No. 10-2893, (3d Cir., 08/16/2011)

The Third Circuit held that the Secretary of Labor need only demonstrate the possibility of exposure to asbestos that is substantially probable to lead to serious harm for purposes of classifying work standard violations as "serious." The Secretary had cited a company for nine "serious" violations of the asbestos in construction standard under the OSH Act. An administrative law judge affirmed all of the violations and upheld the classification of the violations as serious. But the Occupational Safety and Health Review Commission thereafter reduced the classification of the nine violations to "other-than-serious" and lowered the total penalty from $16,875 to $3,150, in part because the Secretary failed to present case-specific evidence of possible employee exposure to asbestos. But demonstrating the possibility of harmful exposure to asbestos does not require case-specific evidence where, as here, 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. The Commission's order was therefore vacated and remanded.