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