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OPM.gov / Policy / Pay & Leave / Claim Decisions / Decisions
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99-3931

Office of the General Counsel

Date: June 2, 2000
Matter of: xxxx
File Number: 99-3931

OPM Contact: xxxx

The claimant, a wage grade employee with the [agency] in xxxx, seeks xxxx based on asbestos exposure. For the reasons set forth herein, the claim is denied.

The claimant asserts that he was exposed to fibers while working in an agency break room. The agency acknowledges that during the renovation of the break room, material was removed that contained asbestos. However, the agency submitted an exposure assessment report which established that there were no airborne asbestos fibers and that the asbestos exposure that did occur was well below the permissible exposure limits set by the xxxx.

It should be noted that while xxxx has established asbestos exposure limits, there are no minimum asbestos exposure levels for EDP. See 5 C.F.R. Part 532, Subpart E, Appendix A, Part II, No. 16. The only EDP requirements are that asbestos must be present at the work site and that the EDP must be approved by the agency based on the agencys evaluation of the situation. See 5 C.F.R. ' 532.511(a)(2). In reviewing EDP claims, OPM does not substitute its judgment for that of the agency officials who are in a better position to investigate and resolve the matter. Indeed, unless there is clear and convincing evidence that the agency's decision was wrong or that the agency's decision was arbitrary and capricious, OPM will not disturb the agencys determination. See 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 decision was wrong. In fact, the agencys decision is fully supported by the administrative record.

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.

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."

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