Nat'l Coll. of Bus. & Tech., Inc. v. Malveaux, Record No. 1641–11–3.
| Decision Date | 03 April 2012 |
| Docket Number | Record No. 1641–11–3. |
| Citation | 723 S.E.2d 270,60 Va.App. 22 |
| Parties | NATIONAL COLLEGE OF BUSINESS AND TECHNOLOGY, INC. v. Courtney M. MALVEAUX, Commissioner of Labor and Industry. |
| Court | Virginia Court of Appeals |
OPINION TEXT STARTS HERE
Samuel M. Brock III (Spilman Thomas & Battle, PLLC, on brief), for appellant.
Joshua N. Lief, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Steven P. Jack, Assistant Attorney General, on brief), for appellee.
Present: ALSTON and HUFF, JJ., and Coleman S.J.
On this second appeal, National College of Business and Technology, Inc. (“the College”) appeals the Circuit Court of the City of Salem's (“circuit court”) order, on remand from this Court's opinion, Nat'l College of Bus. and Tech., Inc. v. Davenport,1 57 Va.App. 677, 705 S.E.2d 519 (2011), finding that the asbestos-related violations were properly classified as “other than serious” violations with no penalties imposed. On appeal, the College contends that the circuit court erred in finding that the alleged violations were properly classified as “other than serious” violations, rather than “de minimis” violations, because the Commissioner failed to produce credible evidence of a direct and/or immediate relationship to the occupational safety and health of the College's employees. For the following reasons, this Court affirms the circuit court's holding.
On appeal, “[w]e view the facts in this case ‘in the light most favorable to sustaining the [Commissioner's] action and take due account of the presumption of official regularity, the experience and specialized competence of the [Commissioner], and the purposes of the basic law under which the [Commissioner] has acted.’ ” Nat'l College, 57 Va.App. at 680–81, 705 S.E.2d at 521 (alteration in original) (quoting Sentara Norfolk Gen. Hosp. v. State Health Comm'r, 30 Va.App. 267, 279, 516 S.E.2d 690, 696 (1999)). So viewed, the evidence is as follows.
The Virginia Department of Labor and Industry Occupational Safety and Health Administration (“VOSH”) received an anonymous complaint concerning dust from the renovation of the College in Salem. Doug Wiggins (“Wiggins”), a VOSH asbestos/lead compliance officer, investigated the complaint at the College. He initiated the inspection on January 20, 2004. During the inspection, Wiggins was told there had been an asbestos inspection and report prior to the renovation work.
On one side of the gymnasium, Wiggins noticed four-inch diameter holes cut through the concrete floor. The holes were for an electrical conduit to pass through the floor to the basement. He was told there was an old boiler room beneath that area.
Wiggins then inspected the boiler room located in the basement, and observed some damaged pipe insulation suspected to contain asbestos, approximately seven to eight feet above the floor. Wiggins photographed insulation material found on the pipes and ducts in the boiler room. He found asbestos-containing material in some of the insulation.3 In response to questioning if amosite and chrysotile asbestos caused mesothelioma, Wiggins affirmatively responded that both of them will cause mesothelioma.4 Wiggins also testified it takes an expert to identify asbestos. Wiggins indicated most asbestos material is covered by a cloth-like material to “keep the asbestos materials in and to insulate,” but several pipes had damaged insulation, revealing the asbestos material. One photograph showed a pipe with new insulation.
Wiggins observed a valve or faucet-like handle in the boiler room, used to regulate the boiler's temperature. In response to a question by the circuit court, Wiggins indicated that the presence of the heat valve would cause employees to go to the boiler room. Wiggins also observed boxes containing College records being stored in the boiler room.
Upon the conclusion of the inspection, Wiggins recommended that the College be cited for certain violations related to the asbestos found in the boiler room. VOSH, based on the recommendations, issued a citation with three subparts.
Item 1 charged the College with not determining the quantities of the asbestos pipe insulation and other asbestos material in the facility, in violation of 29 C.F.R.1910.1001(j)(2)(i).
Item 2a charged the College with failure to post signs at the entrance of the boiler room where damaged asbestos materials were located, in violation of 29 C.F.R.1910.1001(j)(3)(v).
Item 2b charged the College with failure to place warning labels on the products (pipe insulation, old boiler, etc.) that contained asbestos, in violation of 29 C.F.R.1910.1001(j)(4)(i).
Wiggins explained the rationale of the Item 1 citation. The College was required to inspect all areas where renovation occurred for presumed asbestos-containing material (“PACM”) and asbestos-containing material (“ACM”). Specifically, the College would have been required to inspect the boiler room where the damaged asbestos material was found. Wiggins concluded employees had access to the boiler room because the College records were stored there and because employees must go to the boiler room to adjust the temperature.
Referring to Item 2a of the citation, Wiggins testified the College had a duty to post signs at the entrance to the boiler room to identify the asbestos materials present. There were no such signs. As to item 2b, the College was obligated to affix warning labels to all products containing asbestos fibers (or to their containers). No such labels were present.
Wiggins then addressed the range of penalties associated with the violations. There are three grades of severity: high, medium, and low. There are two grades of probability: greater and lesser. The levels of severity and probability are combined to reach a “gravity-based” penalty.5 Because asbestos is carcinogenic,6 meaning it “may cause cancers, may cause mesothelioma, [and] may cause asbestosis,” Wiggins classified the severity as “high.” He classified the probability of exposure as “lesser” based on the potential for employees to be in the area and with what frequency.
Wiggins applied the same calculation to arrive at the penalties for Items 2a and 2b, which he grouped together to arrive at a proposed penalty. He calculated the penalties based on the criteria for “serious” violations set forth in the Field Operations Manual (“FOM”).
The circuit court affirmed the Commissioner's citations and the penalties imposed. The College appealed to this Court alleging that the circuit court erred in finding “(1) that the College's employees were exposed to the asbestos hazard and (2) that the violations were ‘serious,’ as defined by Code § 40.1–49.3.” Nat'l College, 57 Va.App. at 680, 705 S.E.2d at 521. On February 15, 2011, this Court affirmed the circuit court holding that there was evidence that the employees were exposed to asbestos at the College. Id. at 691, 705 S.E.2d at 526. This Court, however, reversed the circuit court's finding that the evidence in the record was sufficient to show a finding of a serious violation in that there was no evidence that a person exposed to asbestos is likely to suffer serious injury or death. Id. at 691–92, 705 S.E.2d at 526. This Court then remanded the second issue to the circuit court with instructions to remand to the Commissioner “for a re-determination of the penalty consistent with this opinion.” Id. at 692, 705 S.E.2d at 526.
Upon remand, the Commissioner filed a memorandum on re-determination of the penalty in the circuit court, and proposed that the citations be classified as “other than serious” violations without penalty, pursuant to Code § 40.1–49.4(G), based on the fact that the violations have a direct relationship to the occupational safety and health of the College's employees. The Commissioner acknowledged in the memorandum that since the diseases resulting from exposure to asbestos do not appear immediately, the question was not whether the relationship was immediate but rather whether the relationship was direct.
The College filed its response contesting the Commissioner's proposed classification of the violations. The College argued that the violations should have been classified as “de minimis” since there was no proof of a direct and/or immediate relationship between the violations and the occupational safety and health of the College's employees.
On June 29, 2011, the circuit court issued a letter opinion finding that In the letter opinion, the circuit court “adopt[ed] the 6/10/11 ‘Memorandum on Re-determination of the Penalty’ as filed by the Commissioner ..., as the opinion of this [c]ourt.” On July 21, 2011, the circuit court issued a final order and specifically held that, “the [circuit court] finds that the asbestos related violations, ..., are properly classified as ‘other than serious' violations with no penalties imposed.” This appeal followed.
On appeal, “[t]he burden is upon the party complaining of an agency action to demonstrate an error of law subject to review.” Roanoke Mem'l Hosps. v. Kenley, 3 Va.App. 599, 603, 352 S.E.2d 525, 527 (1987) (citation omitted). Further,
[o]n appeal, findings of fact made by the trial judge are presumed to be correct and are “given the same effect as a jury verdict, settling all conflicts in the evidence in favor of the prevailing party.” Richmond v. Beltway Properties, 217 Va. 376, 379, 228 S.E.2d 569, 572 (1976). In reviewing such a factual finding, we view the evidence in a light most favorable to the finding. See, e.g., Rudder v. Housing Authority, 219 Va. 592, 595, 249 S.E.2d 177, 178 (1978), appeal dismissed, 441 U.S. 939 [, 99 S.Ct. 2154, 60 L.Ed.2d 1040] (1979). A contention that the evidence does not support the court's factual finding will be sustained only when the finding is plainly wrong or is without...
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Atl. Envtl. Constr. Co. v. Malveaux
...VDLI has “reasonable cause to believe” a violation of a safety or health standard has occurred. Nat'l Coll. of Bus. & Tech., Inc. v. Malveaux, 60 Va.App. 22, 31–32, 723 S.E.2d 270, 275 (2012). VDLI, however, can only “propose” a civil penalty for the cited violation. Code § 40.1–49.4(A)(4)(......