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Office of the General Counsel

Date: May 12, 1998
Matter of: [xxx]
File Number: S001371

OPM Contact: Murray M. Meeker

The Chief Counsel of the [xxx] has submitted hazardous duty pay (HDP) claims based on asbestos exposure from three General Schedule (GS) employees located at the [xxx] in [xxx]. The [xxx] employees base their claims on the fact that wage grade (WG) employees who are physically located at the same work area receive environmental differential pay (EDP) for asbestos exposure. For the reasons stated herein, the claims are denied.

While the agency acknowledges that WG employees at [xxx] receive EDP for asbestos exposure, the agency explains that the asbestos levels do not mandate that the claimants receive HDP for asbestos exposure. The agency explains further that the payments to the WG employees are in compliance with an arbitrator's decision.

It should be emphasized that there is no minimum exposure level for asbestos for EDP. See 5 C.F.R. Part 532, Subpart E, Appendix A, Part II, No. 16.(1) The only EDP requirements are that asbestos must be present at the work site and that the EDP must be approved by the agency or be ordered by an arbitrator. See 5 C.F.R.  532.511(a)(2). In reviewing HDP claims, OPM will not substitute its judgment for that of the agency officials who are in a better position to investigate and resolve the matter, and unless there is clear and convincing evidence that the agency's decisions were wrong or that the agency's decisions were arbitrary and capricious. 58 Comp. Gen. 331 (1979) and Joseph Contarino, B-202182, Jan. 19, 1982, as cited in AFGE Local 2413, 67 Comp. Gen. 489 (1988).

We find no basis for concluding that the agency's decisions denying the [xxx] employees' HDP claims are wrong, arbitrary or capricious; the applicable OSHA and OPM asbestos exposure standards

for HDP, 5 C.F.R. Part 550, Subpart I, Appendix A,(2) do not mandate that these employees receive HDP for asbestos exposure.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the rights of employees to bring actions in appropriate United States Courts.

1 OPM's regulations authorize EDP for asbestos exposure as follows: "16. Asbestos. Working in an area where airborne concentrations of asbestos fibers may expose employees to potential illness or injury and protective devices or safety measures have not practically eliminated the potential for such personal illness or injury."

2 OPM's regulations governing HDP for asbestos exposure, provide that there must be "Significant risk of exposure to airborne concentrations of asbestos fibers in excess of the permissible exposure limits (PELS) in the standard for asbestos provided in title 29, Code of Federal Regulations, subsections 1910.1001 or 1926.58, when the risk of exposure is directly connected with the performance of assigned duties."

Control Panel