Conoco Phillips Bayway Refinery (Commission decision, October 25, 2011)

Plain-English summary

The Commission had previously affirmed nine asbestos-in-construction items as other-than-serious and assessed $350 per item. The Third Circuit vacated that order and directed the Commission to classify the violations as serious and reconsider the penalties. On remand, the Commission considered that up to eight employees worked in or near the excavation and applied the court's conclusions about presumed asbestos exposure during Class II work. It affirmed all nine items as serious and assessed $1,775 per item, for a total penalty of $15,975.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.1101
• Outcome: Nine asbestos items were reclassified as serious, and total penalties were increased from $3,150 to $15,975.
• Key point: After appellate remand, Class II asbestos-work exposure supported serious classifications and higher penalties for every item.

Full text (OSHRC public release)

CONOCOPHILLIPS BAYWAY REFINERY, Docket No. 07-1045

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 07-1045

CONOCOPHILLIPS BAYWAY REFINERY,

Respondent.

DECISION AND ORDER

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, 2011).

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
$15,975.

SO ORDERED.

_/s/______

Thomasina V. Rogers

Chairman

__/s/_____

Cynthia L. Attwood

Dated: October 25, 2011                                             Commissioner