National College of Business & Technology, Inc. v. Malveaux
723 S.E.2d 270
Va. Ct. App.2012Background
- VOSH investigated an anonymous asbestos complaint at the College in Salem; inspection began January 20, 2004, after prior asbestos investigations/pre-renovation reports.
- Inspectors observed four-inch holes in the gym floor for conduit and damaged asbestos-containing pipe insulation in a boiler room, with samples showing amosite/chrysotile asbestos up to 10–30%.
- Wiggins concluded employees could access the boiler room due to stored records and thermostat adjustments, prompting citations for asbestos-related violations.
- Citations: Item 1—failure to determine quantities of asbestos-containing materials; Item 2a—no warning signs at boiler room entrance; Item 2b—no warning labels on asbestos-containing products.
- Circuit Court upheld the citations and penalties; on appeal, this Court (Nat'l College) affirmed exposure evidence but held no proof of a serious violation, remanding for penalty re-determination.
- On remand, the Commissioner proposed classifying the violations as “other than serious” with no penalties; the College argued they were de minimis; circuit court adopted the Commissioner’s position and final order labeled the violations as “other than serious.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct/immediate relation required for non-serious | College: no direct/immediate relation; should be de minimis. | Commissioner: under 16 VAC 25-60-10, either direct or immediate relationship suffices. | Record supports other-than-serious; law allows direct or immediate relation. |
| De minimis vs other-than-serious classification | College: evidence inadequate to show direct/immediate impact on safety/health; should be de minimis. | Commissioner: record shows direct relationship via asbestos hazards; not de minimis. | Record shows direct relationship; violations properly classified as other-than-serious. |
Key Cases Cited
- Nat'l College of Bus. and Tech., Inc. v. Davenport, 57 Va. App. 677 (Va. App. 2011) (reversed finding of serious violation; remanded for penalty re-determination)
- Sentara Norfolk Gen. Hosp. v. State Health Comm'r, 30 Va.App. 267 (Va. App. 1999) (standard for reviewing agency factual findings)
- Floyd S. Pike Electr. Contr., Inc. v. Comm'r, Dep't of Labor & Indus., 222 Va. 317 (1981) (burden on party challenging agency action; proper standard of review)
- Rudder v. Housing Authority, 219 Va. 592 (Va. 1978) (credibility and factual findings reviewed for reasonableness)
- Richmond v. Beltway Properties, 217 Va. 376 (Va. 1976) (presumption of regularity and deference to agency findings)
- Williams v. Commonwealth, 57 Va. App. 750 (Va. App. 2011) (res judicata effect on relitigation of issues resolved in prior appeal)