ELR Citation: ELR 20050
No(s). 03-60958 (5th Cir. Feb 21, 2005)

The Fifth Circuit upheld the Occupational Safety and Health Review Commission's final order against an individual, who allowed workers to be exposed to asbestos during a building renovation project, for various violations of the Occupational Safety and Health Act (OSH Act) and associated safety and health regulations. The individual's illegal asbestos abatement activities at the worksite affected interstate commerce, thereby supporting the OSH Act's jurisdictional reach over the individual as an employer. In addition, substantial evidence supported the commission's findings that the individual's corporations were not alter egos of the individual to support reverse corporate piercing. Further, the commission's legal determination that the individual's lack of willfulness under the OSH Act's general duty clause was neither arbitrary, capricious, nor an abuse of discretion, and the commission properly assessed citations against the individual for training and respirator violations on a per-instance rather than per-employee basis. Last, the commission did not abuse its discretion in assessing the maximum penalty amounts.