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Court Upholds Agency on Asbestos Exposure

The administrative record supported the Virginia Department of Labor & Industry’s classification of a college’s asbestos-related violations as “other than serious,” a higher designation than “de minimis,” and the Court of Appeals upholds a lower court determination on appeal by the college.

On appeal, the college argues the department’s commissioner failed to produce credible evidence of a direct and/or immediate relationship to the occupational safety and health of the college’s employees.

The Virginia Administrative Code defines an “other than serious” violation as a violation which is not, by itself a serious violation within the meaning of the law but which has a direct or immediate relationship to occupational safety or health. Under the Administrative Code, the requirements are disjunctive, not conjunctive. Contrary to the college’s assertion in reliance on the agency Field Operations Manual (FOM), an “other than serious” violation can occur if there is either a “direct or immediate relationship” to the employees’’ safety and health. The circuit court did not err in applying the law, as the college alleges, to this case.

In the circuit court, the commissioner conceded the violations in this case have no immediate relationship to the safety and health of the college’s employees in that mesothelioma or asbestosis do not appear immediately upon an exposure but can take many years to manifest themselves. The question then is whether the record contains sufficient credible evidence that there is a direct relationship between an employee’s exposure to asbestos materials and an employee’s health and safety. It does.

The college’s employees were exposed to the asbestos material in the boiler room. With regard to the asbestos material, the agency compliance officer testified that several pipes had damaged insulation that revealed the asbestos material and that he took samples of the insulation material. The laboratory analysis of the samples taken indicated every sample contained at least 10 percent to 30 percent of amosite and/or chrysotile asbestos. The compliance officer affirmatively responded that both substances will cause mesothelioma, and that asbestos is a “carcinogenic” that may cause cancers, mesothelioma and asbestosis.

Decision upholding agency action is affirmed.

National College of Business & Technology Inc. v. Malveaux (Huff) No. 1641-11-3, April 3, 2012; Salem Cir.Ct. (Doherty) Samuel M. Brock III for appellant; Joshua N. Lief, Sr. AAG, for appellee. VLW 012-7-088, 11 pp.

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