Tierdael Const. v. Occupational Safety and Health

• Decision Date: 18 August 2003
• Docket Number: No. 02-9532.,02-9532.
• Citation: 340 F.3d 1110
• Parties: TIERDAEL CONSTRUCTION COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent. Associated General Contractors of America, Inc., Colorado Contractors Association, Inc., and National Utility Contractors Association, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1110

340 F.3d 1110

TIERDAEL CONSTRUCTION COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.

Associated General Contractors of America, Inc., Colorado Contractors Association, Inc., and National Utility Contractors Association, Amici Curiae.

No. 02-9532.

United States Court of Appeals, Tenth Circuit.

August 18, 2003.

COPYRIGHT MATERIAL OMITTED

James J. Gonzales, Holland & Hart, LLP, Denver, CO, for Petitioner.

Ellen L. Beard, Senior Appellate Attorney, U.S. Department of Labor (Eugene Scalia, Solicitor of Labor, Allen H. Feldman, Associate Solicitor for Special Appellate and Supreme Court Litigation, Nathaniel I. Spiller, Deputy Associate Solicitor, with her on the brief), Washington, DC, for Secretary of Labor, Respondent.

Peter R. Nadel, Gorsuch, Kirgis, LLP, Denver, CO, filed an amici curiae brief on behalf of Associated General Contractors of America, Inc., Colorado Contractors Association, Inc. and National Utility Contractors Association, in support of Petitioner.

Before HENRY, HOLLOWAY and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Tierdael Construction Company ("Tierdael") was issued a citation alleging several serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, after an inspection of their work site by a compliance officer from the Occupational Safety and Health Administration ("OSHA"). Tierdael appealed the citation to the Occupational Safety and Health Review Commission (the "Commission"). A four-day hearing was held before a Commission administrative law judge ("ALJ"). In his decision and order, the ALJ vacated four violations, affirmed four violations as other-than-serious, affirmed three violations as de minimis, and assessed penalties totaling $1,800.00. The decision of the ALJ became the final order of the Commission. Exercising jurisdiction pursuant to 29 U.S.C. § 660(a), this court denies Tierdael's petition for review, concluding that the plain and natural meaning of the regulation encompasses Tierdael's activity. Alternatively, OSHA's interpretation of 29 C.F.R. § 1926.1101 (the "OSHA Asbestos Standard") that Tierdael's activity falls within the definition of Class II asbestos work and that Tierdael was required to comply with the requirements of the OSHA Asbestos Standard is entitled to deference.

II. BACKGROUND

On October 30, 2000, two Tierdael employees removed asbestos-containing cement pipe from an excavation trench located in the middle of a street intersection in a residential neighborhood in Littleton, Colorado. In order to remove the pipe, one of the employees used a two-pound hammer to break the pipe while the other employee sprayed the pipe. The pipe remained intact, in that it did not crumble or become pulverized. The pipe was then lifted out of the trench with a sling and backhoe.

In response to a complaint about Tierdael's removal of the asbestos-containing pipe, an OSHA compliance officer went to the construction site. After conducting an inspection, OSHA, acting under the authority of the Secretary of Labor (the "Secretary"), issued a citation alleging the following violations, which were classified as "serious": (1) failure to provide sufficient protection for the excavation in violation of 29 C.F.R. § 1926.651(j)(2); (2) failure to provide a regulated area for the Class II asbestos work in violation of 29 C.F.R. § 1926.1101(e)(1); (3) failure to conduct exposure monitoring in violation of 29 C.F.R. § 1926.1101(f)(1)(i); (4) failure to use required engineering controls and work practices, including wetting methods, a HEPA vacuum, and proper disposal methods, in violation of 29 C.F.R. § 1926.1101(g)(1); (5) failure to have a competent person supervise the Class II asbestos work in violation of 29 C.F.R. § 1926.1101(g)(7)(i); (6) failure to use work practices and controls for removal including wetting, keeping the material intact during removal, and bagging and wrapping the material, in violation of 29 C.F.R. § 1926.1101(g)(8); (7) failure to provide respirators in violation of 29 C.F.R. § 1926.1101(h)(1); (8) failure to provide protective clothing in violation of 29 C.F.R. § 1926.1101(i)(1); (9) failure to establish an equipment room or area for decontamination of employees and their equipment in violation of 29 C.F.R. § 1926.1101(j)(2)(i); (10) failure to affix labels onto the water pipe or the bagged transite piping in violation of 29 C.F.R. § 1926.1101(k)(8)(i); and (11) failure to provide training to the employees exposed to the cement pipe in violation of 29 C.F.R. § 1926.1101(k)(9)(iv)(C).

Tierdael contested the citations and a four-day hearing was conducted before a Commission ALJ. At the hearing, Leary Jones, Tierdael's risk manager and controlling official at the work site on October 30, 2000, testified that the OSHA Asbestos Standard generally applied to Tierdael's work activities. He also testified that the pipe breakage and removal from the excavation constituted Class II asbestos work. He further stated that he believed the OSHA Asbestos Standard did not apply since Tierdael's construction activity did not meet or exceed the permissible exposure limit ("PEL") for asbestos. Jones testified that industry data revealed that the asbestos PEL is not exceeded when pipe is removed from an excavation. Moreover, Jones testified that Tierdael concluded that it had complied with the OSHA Asbestos Standard because an October 4, 1995 letter written by Western Environment and Ecology, Inc. ("Western"), which stated that the results of air monitoring conducted at a previous pipe removal construction project "were below current OSHA exposure standards," constituted objective data for a negative exposure assessment. Although the letter was the basis for Tierdael's "Asbestos Action Plan," Jones acknowledged that he did not have the 1995 letter with him at the work site and could not say whether the letter was reviewed prior to the work being performed.

Greg Sherman of Western also testified that the 1995 letter constituted objective data for a negative exposure assessment. He testified, however, that the method for removal examined by Western in 1995 was not the use of a hammer to break the pipe, a method Western would not recommend. Although Sherman testified that typically pipe removal is Class II asbestos work, he concluded that the pipe removal on October 30, 2000 was not Class II removal because no structure was attached to the pipe. In addition, Tierdael's expert similarly testified that the OSHA regulations did not apply because the pipe removal was not a Class II activity since the pipe was not a structure, substrate, or building component.

Daniel Crane of OSHA testified that Tierdael's construction activity was Class II removal. He testified that a pipeline was considered a structure and that a substrate is something in the ground which is not necessarily connected to a building. Crane further testified that asbestos-containing cement pipe is a building component. He stated that exposure is not always a necessary part of the regulations and that the OSHA Asbestos Standard requires compliance with some removal methods regardless of a negative exposure assessment.

The ALJ ruled, consistent with OSHA's interpretation, that Tierdael removed the pipe from the Littleton water delivery system, which was a structure. The ALJ then concluded that under the plain meaning of the regulation, Tierdael's activity was Class II asbestos work.

The ALJ vacated the violations of failure to provide sufficient protection for the excavation failure to require engineering controls and work practice of wetting methods and proper disposal, failure to use work practices and controls for removal, and failure to provide training. The ALJ affirmed the violations of failure to provide a regulated area, failure to use required engineering controls and work practices of a HEPA vacuum, failure to have a competent person supervise, and failure to affix labels but reduced the classification of the violations to "other-than-serious." The ALJ also affirmed violations of failure to conduct exposure monitoring, failure to provide respirators, failure to provide protective clothing, and failure to establish an equipment room, but reduced the classification of the violations from "serious" to "de minimis." The ALJ assessed a penalty of $1,800.00.

Tierdael filed a petition for discretionary review with the Commission, appealing the ALJ's order. The Commission declined review. Thus, the ALJ's decision and order became the final order of the Commission.

Tierdael petitions this court for review from the Commission's order, claiming Tierdael's construction activity did not constitute Class II asbestos removal subject to the requirements of 29 C.F.R. § 1926.1101; there was no likely or actual exposure to asbestos because the pipe remained intact; and objective data established a negative exposure assessment, rendering the OSHA Asbestos Standard's requirements moot. Tierdael also asserts that the ALJ's decision and the Secretary's interpretation of the OSHA Asbestos Standard denies due process.

III. STANDARD OF REVIEW

This court reviews the Commission's findings of fact under a substantial evidence standard upon consideration of the record as a whole. 29 U.S.C. § 660(a). The Commission's conclusions of law are reviewed "to determine if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the] law." Universal Constr. Co. v. Occupational Safety & Health Review Comm'n, 182 F.3d 726, 732 (10th Cir.1999). This court's review is narrow and highly deferential to OSHA and the Secretary. Id. That deferential standard applies even when the Commission does not receive evidence but instead adopts an ALJ's findings. See Modern Cont'l Constr. Co. v. Occupational Safety & Health Review Comm'n, 305 F.3d 43, 49 (1st Cir.2002).

IV. DISCUSSION

A. Class II Asbestos Work

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