COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Humphreys and McClanahan Argued by teleconference

NATIONAL COLLEGE OF BUSINESS AND TECHNOLOGY, INC. OPINION BY v. Record No. 0938-10-3 JUDGE ROBERT P. FRANK FEBRUARY 15, 2011 C. RAY DAVENPORT, COMMISSIONER OF LABOR AND INDUSTRY

FROM THE CIRCUIT COURT OF THE CITY OF SALEM Robert F. Doherty, Jr., Judge Samuel M. Brock, III (Monica Taylor Monday; James J. O’Keeffe; Spencer M. Wiegard; Spilman Thomas & Battle, PLLC; Gentry Locke Rakes & Moore, LLP on brief), for appellant. Crystal Y. Twitty, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Wesley G. Russel l, Jr., Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General, on brief), for appellee.

National College of Business and Technology, In c. (the College) was cited for violating certain asbestos-related safety standards issu ed by the Virginia Department of Labor and Industry Occupational Safety and Health Ad ministration (VOSH). The circuit court 1 upheld the citations and penalty. On appeal, the College contends the circuit court erred in finding: (1) that the College’s employees were exposed to the asbe stos hazard and (2) that the violations were “serious,” as defined by Code § 40.1-49.3. Esse ntially, the College ar gues the evidence to

1 Pursuant to Code § 40.1-49.4(E), when a citati on for a safety or health violation is contested, the Safety and Health Codes Commission shall file a civil action in the circuit court for that court to affirm, modify or vacate the Commissioner’s citation or proposed penalty, or to direct other appropriate reli ef, upon making findings of fact and conclusions of law.- 2 - support these findings was not sufficient. For the following reasons stated, we affirm in part and reverse in part.

BACKGROUND On appeal, a party complaining of an agency action bears the burden of demonstrating an error of law subject to review. Roanoke Memorial Hospitals v. Kenley , 3 Va. App. 599, 603, 352 S.E.2d 525, 527 (1987).

We 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 th e purposes of the basic law under which the [Commissioner] has acted.’” Sentara Norfolk Gen. Hosp. v. State Health

Comm’r , 30 Va. App. 267, 279, 516 S. E.2d 690, 696 (1999) (quoting Bio-Medical Applications of Arlington, Inc. v. Kenley , 4 Va. App. 414, 427, 358 S.E.2d 722, 729 (1987)), rev’d on other grounds , 260 Va. 267, 534 S.E.2d 325 (2000). VOSH received an anonymous co mplaint concerning dust from the renovation of the College in Salem. 2 Doug Wiggins, a VOSH asbestos/lead compliance officer, investigated the complaint at the College. He initiated the inspectio n on January 20, 2004. During the inspection, Wiggins was told there had been an asbestos insp ection and report prior to the renovation work. On one side of the gymnasiu m, Wiggins noticed four-inch diameter holes cut through the

concrete floor. The holes were for electrical condui t to pass through the floo r to the basement. He

was told there was an old bo iler room beneath that area. Wiggins then inspected the boiler room locate d in the basement and observed some damage suspected to contain asbest os materials, approximately seven to eight feet above th e floor. Wiggins photographed insulation material found in pipes and ducts in the boiler room . He found

2 This complaint is unrelated to the issues before this Court.- 3 - asbestos-containing material in some of the insulation. 3 Wiggins 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 photogra ph showed a pipe with new insulation. Wiggins observed a valve or faucet-like ha ndle in the boiler room, used to regulate the boiler’s temperature. In response to a question by the circuit co urt, Wiggins indi cated 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 recommende d that the College be cited for

certain violations related to the asbestos fo und in the boiler room. VOSH, based on the recommendations, issued a c itation with three subparts. Item 1 charged the College with not determinin g the quantities of the asbestos pipe

insulation and other asbestos materi al in the facility, in violation of 20 C.F.R. 1910.1001(j)(2)(i). 4 Item 2a charged the College w ith failure to post signs at th e entrance of the boiler room where damaged asbestos materials were located, in violation of 20 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 20 C. F.R. 1910.1001(j)(4)(i).

3 Wiggins took five samples of the insula tion material, but took no air samples. Laboratory analysis revealed asbestos (amosite and chrysotile). Amosite is described as brown asbestos. Chysotile is described as white asbest os. Sample ID: A415 tested for both amosite and chrysotile at approximately 10% each; Sample ID: A416 tested for chrysotile fibers at approximately 20%; Sample ID: A417 tested for 10% chrysotile fibers in a piece of insulation; Sample ID: A418 tested for chrysot ile fibers at approximately 30%.

4 The asbestos standards applied by VOSH are the same as the general industry asbestos standards applied by the federal Occupational Safety and Health Administration and are found in the Code of Federal Regulati ons, 29 C.F.R. § 1910.1001 et seq.- 4 - Wiggins explained the rationale of the Item 1 citation. The College was required to inspect

all areas where renovation occu rred for presumed asbestos-cont aining material (PACM) and asbestos-containing material (ACM). Specifically, the College woul d have been required to inspect the boiler room where the damage d asbestos material was found. 5 Wiggins concluded employees

had access to the boiler r oom because the College r ecords were stored ther e 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 ro om to identify the asbestos materials present. Ther e were no such signs. As to item 2b, the College was obligated to af fix warning labels to all products containing asbestos fibers (or to their co ntainers). No such labels were present. Wiggins then addressed the ra nge of penalties associated with the violations. There are three grades of seve rity: 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. 6

5 A survey was conducted February 20, 2003 by Baratta & Associates, Inc. to determine the presence of ACMs in those areas of the College that woul d be affected by the proposed renovation. As part of its recommendati ons, the surveyor wrote in his report: While we were preparing our pr oposal, we noted some damaged TSI [thermal system insulation] on the steam header in the boiler room. Evaluating the boiler room wa s not within the scope of this assignment. Since the TSI is damaged, it could present a health hazard if the space is entered of ten. We recommend the owner consider having the boiler room TS I sampled and tested. If it does prove to be an ACM, the owner may wish to have it removed while the other abatement work related to this project is being performed. The College objected to the admission of the report on hearsay grounds . The circuit court sustained the objection; however, the document was admitted into evidence for proof that it was received by The College and “to sa y what it says in here was said or presented,” and not for the truth of the matter asserted. T hus, the only relevance of the repor t is that the College was aware of a potential hazard.

6 The Field Operations Manual (FOM) explains gravity-based penalty (GBP) as follows: “The GBP for each violation shall be determined based on an appropriate and balanced- 5 - Because asbestos is carcinogenic, Wiggins classifi ed the severity as “high.” He classified the probability of exposure as “lesse r” based on the potential for employ ees to be in th e 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 arri ve at a proposed penalty . He calculated the pena lties based on the criteria

for “serious” violations set forth in the Field Operations Manual (FOM).

The circuit court affirmed the Commissi oner’s citations and th e penalties imposed. This appeal follows.

ANALYSIS The College contends no credible evidence supported the circuit co urt’s finding that the College’s employees were exposed to the asbestos hazard within the six-month period prior to

the citation date. 7 The College also asserts the circuit co urt erred in finding that the violations were “serious,” because no evidence showed a s ubstantial probability that death or serious physical harm could result from a condition exis ting in the place of employment, as required by Code § 40.1-49.3. 8

professional judgment, combining the severity as sessment and the final probability assessment.” Chapter IV, C.2.g.(1). It must be noted that the FOM is an operational manual setting forth procedures to investigate violati ons. It is not and does not purpor t to establish substantive law.

7 Code § 40.1-49.4(A)(3) states: “No citation may be issued u nder this section after the expiration of six months following the occurrence of any alleged violation.” Further, FOM, Chapter III, B.1.b provides in par t: “The exposure must have occurred within the six (6) months directly before the issu ance of the citation in or der to serve as a basis for the violations.”

8 Code § 40.1-49.3 defines “serious violation” as a violation deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which ex ists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.- 6 - On appeal, findings of fact made by the tria l judge are presumed to be correct and are “given the same effect as a jury verdict, sett ling all conflicts in the evidence in favor of the prevailing party.” Richmond v. Beltway Properties, Inc. , 217 Va. 376, 379, 228 S.E.2d 569, 572 (1976) (citing Reiber v. James M. Duncan & Associates, Inc. , 206 Va. 657, 660, 145 S.E.2d 157, 160 (1965)). In reviewing such a factual finding, we view the evid ence in a light most favorable

to the circuit court’s determination. See Rudder v. Wise County Redevelopment & Housing Authority , 219 Va. 592, 595, 249 S.E.2d 177, 178 (1978). “A contention that the evidence does not support the court’s factual finding will be su stained only when the finding is plainly wrong or is without credible evidence to support it.” Pike v. Dept. of Labor & Indus. , 222 Va. 317, 322, 281 S.E.2d 804, 807 (1981). Thus, our inquiry is whether there is cred ible evidence to support the circuit court’s factual findings. It should be noted the College does not assert it complied with the regulations by posting the required signage or th at it inspected the boiler room. For each citation, the Commissioner must pr ove by a preponderance of the evidence: (1) the applicability of the st andard, (2) the existence of noncomplying conditions, (3) employee exposure or access, and (4) that the employer knew or with the exercise of reasonable diligence

could have known of the violative condition. See e.g. , Secretary of Labor 9 v. Dun-Par Engineered Form Co. , OSHRC Docket No. 82-928 (1986). The College contests only the sufficiency of the second element.

9 The Commissioner of Labor and Industry is the counterpart of th e U.S. Secretary of Labor. Magco of Maryland, Inc. v. Barr , 33 Va. App. 78, 86 n.3, 531 S.E.2d 614, 618 n.3 (2000).- 7 - Exposure The College first contends no credible ev idence supports the finding that the College’s employees were exposed to the asbestos, 10 or that even if exposure took place, it was not within

six months before the citation date. The Co llege posits that Wiggins’s testimony regarding employee exposure was merely an assumption, base d on the presence of the storage boxes and a

heat valve in the boiler room. 11 The College further argues no evidence revealed that any asbestos-containing material was lo cated at or near the storage boxes or the heat valve, i.e. that no evidence proved an employee could be exposed to asbestos, even if the employee was in the boiler room. The College also submits that th ere was no evidence any employee actually entered the boiler room within the six-month limitation period. 12 The Commissioner responds that an employ ee need not actually be “exposed” to the hazard as long as the employee has a ccess to the hazard. We agree. [I]n order for the Secretary to establish employee exposure to a hazard she must show that it is reasonably predictable either by operational necessity or otherwis e (including inadvertence), that employees have been, are, or will be in the zone of danger. We emphasize that . . . the inquiry is not simply into whether exposure is theoretically possible. Rather , the question is whether employee entry into the danger zone is reasonably predictable.

10 29 C.F.R. § 1910.1001(b) defines “employee ex posure” as “that exposure to airborne asbestos that would occur if the employee were not using respiratory prot ective equipment.” The College argues the C.F.R. requires actual exposur e, which is inconsistent with “access.” VOSH responds that the C.F.R. does not require “actual” exposure.

11 The College did not object to this testimony.

12 To the extent the College argues Wiggins did not comply with the investigative procedures set forth in the FOM to investigate potential violations a nd specifically whether employees were exposed to the hazards, we will not consider this argument. Rule 5A:20(c) requires appellant’s opening brief to contain “[a] statement of th e assignments of error with a clear and exact reference to the page(s) of the tr anscript, written statemen t, record, or appendix where each assignment of error was preserved in the trial court.” See Cirrito v. Cirrito , 44 Va. App. 287, 309, 605 S.E.2d 268, 278 (2004) (noting that arguments not presented in the questions presented (now assignments of error) w ill not be considered). Further, because this argument was not made at trial, it is waived under Rule 5A:18.- 8 - Secretary of Labor v. Pete Miller, Inc. , OSHRC Docket No. 99-947 (2000) (quoting Secretary of Labor v. Fabricated Metal Prods., Inc. , OSHRC Docket No. 93-1853 (1997)). FOM Chapter III, B.1.b supports this view: (5) Potential Exposure. A citation may be issued when the possibility exists that an em ployee could be exposed to a hazardous condition because of work patterns, past circumstances, or anticipated work requirements, and it is reasonable to expect that employee exposure could occur, such as: (a) The hazardous condition is an integral part of an employer’s recurring operations, but the employer has not established a polic y or program that would prevent employee exposure, including accidental exposure from reoccurring, or (b) The employer has not ta ken steps to prevent access to unsafe machinery or equipment which employees may have reason to use; or (c) A safety or health hazard poses a danger to employees simply by employee presence in the area and it is reasonable to expect that an employee could come into the area during the course of the work, to rest or to eat at th e job site, or to enter or to exit from the assigned workplace. Thus, to resolve whether credible evidence supp orts the circuit court’s factual finding that employees were “exposed” to the asbestos, we must apply the test explained in Pete Miller to determine whether it is possible that an employee c ould be exposed to asbestos, i.e., whether it is reasonably predictable that employees have been or will be in the zone of danger. Barr v. S.W. Rodgers Co. , 34 Va. App. 50, 537 S.E.2d 620 (2000), is instructive. As in the instant case, an issue in Barr was whether the evidence was sufficient to prove that an employee had been exposed to the condition wh ich was the subject of the citation. The compliance officer did not see any employees actual ly in the trench, the s ite of the violation. However, there was evidence that an employee dug the trench, there was a footprint in the- 9 - bottom of the trench, and work had been done in the trench. Id. at 61, 537 S.E.2d at 625. We

concluded the evidence was sufficient. Id. In this case, although Wiggins saw no employ ee in the boiler room, evidence supports the circuit court’s finding that employees were “expose d” to the hazard – specifically, that they had access to the boiler room. Wiggins saw boxes of Co llege records stacked in the boiler room, in close proximity to insulated pipes. He also test ified that a valve used to adjust the temperature “in case it gets too cold or too hot” was located in th e boiler room, in clos e proximity to the defective pipes. Without objection, Wiggins te stified employees had ac cess to the asbestos because of “the storage of the records in the ba sement area and then with the adjustments of the heat of the building.” Based on Wiggins’s testimony and the exhibits depicting the boiler room, the circuit court properly inferred it was reasonably predictable that employ ees would enter the boiler room, the zone of danger, to adjust th e building’s temperature and to stor e and retrieve school records.

While the evidence was not as direct as it was in Barr , we cannot say the circuit court’s ruling on exposure was plainly wrong. The College further challenges the sufficiency of the evidence that exposure occurred

within six months of the cita tion date. The evidence revealed that the inspection occurred January 20 through January 30, 2004. The cita tions were issued February 19, 2004. The violations were observed during the inspection date s. Six months prior to the issuance date would have been August 2003. It is therefore reasonable to conclude that an employee had

access to the asbestos hazard within six months of the issuance date of the citation, because presumably an employee would have adjusted th e temperature of the building between August- 10 - 2003 (summer) and February 2004 (winter). 13 14 Furthermore, access is continuing. On any given day, it is reasonably predictable that employees have been, are, or will be in the zone of danger. See Pete Miller , OSHRC Docket No. 99-947. The College contends the anonymous complain t referred only to dust in the gymnasium

and not asbestos in the boiler room. We find no relevance to this contention. The issue before us is not what brought an inspector to the Co llege, but rather what the inspection revealed.

Serious Violation Next, the College contends no evidence suppor ted the circuit court’ s finding that the violations were “serious.” This argument a ddresses the penalty imposed upon the College. Code § 40.1-49.3 states:

“Serious violation” means a violatio n deemed to exist in a place of employment if there is a substa ntial probability that death or serious physical harm could result from a condition which exists, or from one or more practices , means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer di d not, and could not with the exercise of reasonable diligence , know of the presence of the violation. Under the FOM, Chapter III, B.2.b(2)(c), serious physical in jury is defined as follows:

1. Serious physical harm is defined as impairment of the body in which part of the body is ma de functionally useless or is substantially reduced in efficien cy on or off the job. Such impairment may be permanent or temporary, chronic or acute. Injuries involving such impairment would usually require treatment by a medical doctor. 2. Serious physical harm can also be an illness that could shorten life or significantly reduce physical or mental

13 There is no evidence in the record that th ere were any other temp erature controls or heating sources elsewhere in the building.

14 Because of this ruling, we do not addr ess the Commissioner’s argument that the statutory language “may” is “dir ectory” and not “mandatory,” nor that a statute of limitations does not apply to the sovereign.- 11 - efficiency by inhibiting the nor mal function of a part of the body. The College first contends that because no employee was actually exposed to asbestos, no employee would face the risk of death or serious physical harm. We have already resolved that argument against the College. Alternatively, the College maintains that even if employees entered the boiler room, no

evidence indicates the defective in sulation material in the boiler room could cause a “substantial probability of death or serious physical harm.” The College argues there was no air sampling testimony nor medical testimony as to that probab ility. Specifically, the College argues that there is no evidence as to how much exposur e and what type of exposure could cause a substantial probability of death or serious injur y. Essentially, the College challenges causation between exposure and injury. We agree with the College. The Commissioner points to the definiti on of a serious violation, which requires a substantial probability that death or serious bodily harm could result. Relying on identical language under 291 U.S.C. § 666(k) (“if there is a substantial probability that death or serious injury could result”), the commissioner in Pete Miller opined: “That provision does not mean

that the occurrence of an accident must be a s ubstantially probable result of the violative condition but, rather, that a seri ous injury is the likely result should an accident occur.” OSHRC Docket No. 99-947 (quoting Miniature Nut & Screw Corp. , OSHRC Docket No. 93-2535 (1996)). In other words, it is n ecessary to prove that if an empl oyee were to be exposed to the asbestos, the likely result of such expos ure would be a serious injury or death.

The circuit court had evidence of the levels of amosite and chrysotile asbestos in the insulation material. The circuit court inquired, “[a] re each of these the same material that causes- 12 - mesothelioma?,” and Wiggins responded, “[y]es sir, both of them will.” All of the materials analyzed contained greater than one pe rcent, meaning that ACM was present. 15 Furthermore, without objection, 16 Wiggins testified that asbe stos is “a carcinogenic,” 17 which “may cause cancer, may cause me sothelioma, may cause asbestosis.” 18 Our inquiry, then,

is whether the record contains sufficient credible evidence that a person exposed to asbestos is likely to suffer serious injury or death. We do not find such evidence.

The record contains no evidence as to what level of exposure or what frequency of exposure would lead to injury or death. Is a si ngle exposure to asbestos sufficient? Must the exposure take place over a prolonged period of ti me? There is no evidence to answer these questions. Wiggins’s testimony establishes that asbestos is a carcinoge n. Many substances, however, are carcinogenic. Evidence that shows me rely that a given substa nce is a carcinogen is not dispositive and will not support a finding of a serious violation.

15 ACM means any material containing more than 1% of asbestos. 29 CFR § 1910.1001(b).

16 Earlier in the hearing, the circuit court sustained an obj ection to similar testimony by Wiggins. The College did not make a continui ng objection, nor did it renew its objection to Wiggins’s later testimony. A party cannot avail it self of an objection to evidence if the party has, at some other time during the trial, ‘“volunt arily elicited the same evidence, or has permitted it to be brought out by his a dversary without objection.’” Burns v. Board of Supervisors of Stafford County , 227 Va. 354, 363, 315 S.E.2d 856, 862 (1984) (quoting Whitten v. McClelland , 137 Va. 726, 741, 120 S.E. 146, 150 (1923)).

17 A carcinogen is “a substance or agent pr oducing or inciting cancerous growth.” Webster’s New International Dictionary 337 (3d ed. 1993). Carcinogenic means “producing or tending to produce cancer.” Id.

18 Mesothelioma is a form of cancer whic h affects mesothelial tissue in the lungs, peritoneum or pericardium. The Sloane-Dorland Annotated Medical-Legal Dictionary 351 (Supp. 1992). Asbestosis is a form of lung disease th at causes interstitial fi brosis or scarring of the lungs. Id. at 36.- 13 - There must be some testimony that relates the frequency or level of exposure to a

substantial risk of death or serious physical injury. In this case, the record contains insufficient

evidence to show a serious violation.

CONCLUSION

The Commissioner and the circuit court corr ectly found proof by a preponderance of the evidence that employees were exposed to asbestos at the College. Finding no credible evidence to support a finding of a serious vi olation, we remand to the circui t court with instructions to

remand to the Commissioner for a re-determination of the penalty consistent with this opinion. Affirmed in part, reversed in part, and remanded.