Before: ROGERS, Chairman; ATTWOOD, Commissioner.
BY THE COMMISSION:
In a June 15, 2010 Decision and Order, the Commission affirmed violations of the
asbestos in construction standard, 29 C.F.R. § 1926.1101, alleged in a nine-item citation issued
to ConocoPhillips Bayway Refinery under the Occupational Safety and Health Act of 1970
(“OSH Act”), 29 U.S.C. §§ 651-678. The Commission characterized these violations as other-than-serious and assessed a penalty of $350 for each citation item, for a total penalty of $3,150.
The Secretary appealed the case to the United States Court of Appeals for the Third Circuit,
challenging the Commission’s characterization of the asbestos violations. The Third Circuit
“vacate[d] the Order of the Commission, and remand[ed] to the Commission with the direction
that it affirm the citations as ‘serious’ and reconsider the penalt[ies] for the violations in light of
this opinion.” ConocoPhillips Bayway Refinery, No. 10-2893, slip op. at 18 (3d Cir. Aug. 16,
In accordance with the Third Circuit’s order, we affirm as serious the violations of the
asbestos standard alleged in Citation 1, Items 1 through 9. Also, we reconsider the penalties for
these serious violations in light of the OSH Act’s statutory factors, which require the
Commission to give “due consideration to the appropriateness of the penalty with respect to the
size of the business of the employer being charged, the gravity of the violation, the good faith of
the employer, and the history of previous violations.” OSH Act § 17(j), 29 U.S.C. § 666(j).
When evaluating gravity, typically the principal factor, the Commission considers “the number
of employees exposed, duration of exposure, likelihood of injury, and precautions taken against
injury.” Siemens Energy & Automation, Inc., 20 BNA OSHC 2196, 2201, 2004-09 CCH OSHD
¶ 32,880, p. 53,231 (No. 00-1052, 2005).
Here, neither party has disputed the judge’s determination that Conoco is not entitled to a
reduction in penalty for business size or prior history but is entitled to a reduction for good faith.
With respect to gravity, the judge found that about twelve employees were exposed to the cited
conditions. The judge based her finding on a witness’s testimony that concerned the conditions
in existence the day before the events at issue here. This same witness also testified, however,
that five or six employees, and two supervisors, worked in or near the excavation on the day in
question. Thus, in assessing the gravity factor, we take into account that a total of up to eight
employees were working in or near the excavation on that day. We also take into account the
Third Circuit’s conclusions regarding the presumption of employee asbestos exposure during
Class II work. ConocoPhillips Bayway Refinery, No. 10-2893, slip op. at 16-18. Accordingly,
we find that $1,775 is an appropriate penalty for each citation item, for a total penalty of
Thomasina V. Rogers
Cynthia L. Attwood
Dated: October 25, 2011 Commissioner