National College of Business & Technology, Inc. v. Davenport
705 S.E.2d 519
Va. Ct. App.2011Background
- VOSH inspected the National College of Business and Technology in Salem after an anonymous dust complaint related to renovation dust; the inspection began January 20, 2004 and resulted in three citation items involving asbestos-containing material (ACM) in the boiler room.
- Wiggins observed damaged insulation near boilers, pipes, and a heat valve in the boiler room, with asbestos-containing material confirmed by samples; storage boxes of College records were located in the boiler room.
- The College did not post signs at the boiler room entrance or label asbestos-containing products, and it did not inspect the boiler room as part of the renovation work.
- The penalties were based on a gravity-based metric for serious violations, with asbestos deemed high severity and exposure deemed lesser probability.
- The circuit court upheld the citations and penalties; the College challenged exposure evidence and the finding of a serious violation, and this appeal followed.
- The court ultimately affirmed the exposure finding, reversed the serious-violation finding, and remanded for a penalty redetermination consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether employees were exposed to asbestos within six months prior to the citation. | Davenport argues no credible exposure; mere presence of boxes/valve is insufficient. | Davenport contends employees had access to the boiler room and thus exposure is reasonably predictable. | Yes; exposure was proven by access to the boiler room and predictability of employee presence. |
| Whether the violations constituted a 'serious violation' under Code § 40.1-49.3. | Davenport argues no substantial probability of death or serious harm from exposure. | Davenport asserts a serious violation based on potential carcinogenicity and exposure risk. | No; record lacked evidence tying exposure to a substantial probability of death or serious physical harm; remand for penalty re-determination. |
Key Cases Cited
- Sentara Norfolk Gen. Hosp. v. State Health Comm'r, 516 S.E.2d 690 (Va. Cir. 1999) (persuasive authority on review standards by agency action)
- Barr v. S.W. Rodgers Co., 537 S.E.2d 620 (Va. Ct. App. 2000) (exposure shown by evidence of activity in trench; access can establish exposure)
- Bio-Medical Applications of Arlington, Inc. v. Kenley, 358 S.E.2d 722 (Va. Ct. App. 1987) (regularity of agency action and standards applicability)
- Richmond v. Beltway Properties, Inc., 228 S.E.2d 569 (Va. 1976) (standard of review for factual findings in administrative actions)