Wednesday, August 17, 2011

Secretary of Labor v. ConocoPhillips Bayway Refinery

Aug 16: In the U.S. Court of Appeals, Third Circuit, Case no. 10-2893. On Appeal from the Occupational Safety and Health Review Commission. In this appeal, although ConocoPhillips Bayway Refinery is the real party in interest, the Appeals Court is asked to decide between different interpretations of agency regulations -- the one announced by the Secretary of Labor (Secretary), the other by the Occupational Safety and Health Review Commission (OSHRC). Both entities are part and parcel of the Department of Labor. In the appeal, because two factions within the same government agency disagree with each other over the application of a standard, the Appeals Court is thrust into resolving what is essentially an internal dispute. The Appeals Court held that "the Secretary's interpretation comports with the standard we established in Secretary of Labor v. Trinity Industries, 504 F.3d 397 (3d Cir. 2007)."
    The Secretary petitioned the Court to challenge the determination of the OSHRC that nine asbestos violations by ConocoPhillips Bayway Refinery were "not serious" rather than "serious" under 29 U.S.C. § 666. The Secretary originally cited Conoco for nine "serious" violations of the asbestos in construction standard, 29 C.F.R. § 1926.1100, under the Occupational Safety and Health Act (Act), 29 U.S.C. §§ 651-678.
    The Appeals Court states further, "We conclude that under Trinity, the violations in this case were "serious," and that the Secretary is not required to proffer case-specific evidence to meet Trinity's standard. We therefore vacate the Order of the Commission, and remand to the Commission with the direction that it affirm the citations as "serious" and reconsider the penalty for the violations in light of this opinion.
    Access the complete opinion (click here). [#Toxics, #CA3]

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