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Capitol's $173 Million Asbestos Saga Ends After 13 Years

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By Emma Dumain
Roll Call Staff

This week marks the official conclusion of the case of 10 Architect of the Capitol employees who were exposed to asbestos for years.

Unofficially, the bitterness engendered by the case will continue to linger.

Thirteen years and more than $173 million later, with many of them suffering health complications likely to last a lifetime, the workers' supervisor is less satisfied with the outcome than the agencies involved.

How this came to pass is a story, in part, about an agency Congress created to ensure safety in the legislative branch workplace that says it has never had adequate resources to do so.

The Office of Compliance is expected to close the books this week on the administrative complaint it filed in 2006, the first and only such complaint since its inception in 1995.

A prelude to a lawsuit, the complaint charged the Architect of the Capitol with failing to eliminate years-old health and safety hazards first discovered in 2000 in the miles-long underground utility system that provides steam and chilled water to Capitol Hill. Among those hazards were falling concrete, excessive heat and asbestos.

Veteran lawmakers and staffers should remember the incident well: Members of Congress were outraged, the national media weighed in and the tunnel workers were compensated an undisclosed amount for harassment they received in retaliation for whistle-blowing.

Under a settlement ultimately agreed to by the OOC and the AOC, the latter agency promised to complete repairs to the tunnels in five years. Millions of dollars later, the OOC says the AOC has fulfilled its obligations on time.

In official responses, both offices put a positive spin on the saga's conclusion.

"The tunnel project shows what can be achieved when all of us on Capitol Hill work together toward a common goal," OOC Executive Director Tamara Chrisler said.

"Architect of the Capitol Stephen Ayers is extremely proud of the efforts of AOC employees and contractors to make improvements to the utility tunnel system, and to have achieved the goals of the settlement agreement so successfully," AOC spokeswoman Eva Malecki added.

But ex-tunnel supervisor John Thayer, who now runs a taxidermy business in Maryland and still suffers from asbestos poisoning, said he feels little vindication.

"After 15 years of ignoring health issues, you don’t settle with anybody," Thayer said of the OOC. “This announcement’s just paperwork. That's all it is."

As federal employees, Thayer and the others were barred under the Federal Employees’ Compensation Act from suing their employer for personal injuries they incurred as a result of the conditions in the tunnels.

It took six years before the OOC filed an administrative complaint against the AOC, from the time the Office of Compliance issued its first citation in 2000 to the time it piled on two more at the beginning of 2006.

The OOC first threatened legal action in February 2006. The AOC agreed to settle 16 months later.

But what was happening during those years between citations? Why were there no follow-up visits to ensure that the warnings were being taken seriously? Could the AOC have been forced to address the hazards sooner?

In an interview with Roll Call, OOC General Counsel Pete Eveleth would not elaborate on what happened before he arrived at the agency in 2003.

He did, however, suggest that the agency was — and still is — overwhelmed by the number of hazards in Congressional properties and lacked sufficient resources to fully inspect all facilities.

Though the OOC is responsible for monitoring safety compliance in legislative branch agencies on and off Capitol Hill, it wasn't until fiscal 2006 that the OOC had the money to hire a full-time employee to conduct Occupational Safety and Health Administration inspections. Prior to that, the OOC had one detailee from the Labor Department and two part-time contractors to cover the entire 16 million-square-foot Capitol campus.

Today, the agency has three staffers monitoring all legislative branch facilities for OSHA compliance, but only one is full time.

"Given the aging of the facilities on Capitol Hill and the complexity of the maintenance, certainly having one full-time inspector to address all the various types of hazardous conditions is woefully inadequate," said David Marshall, an attorney with Katz, Marshall & Banks who represented the tunnel workers' retaliation complaint.

Thayer, who still harbors considerable resentment about the case, attributed the AOC's delay in addressing the hazards to an "out of sight, out of mind" mentality.

"We're talking about a 100-year-old tunnel system that nobody sees. Nobody ever goes down there," he said.

He added that while the OOC was also evidently understaffed and overworked, he couldn't condone the decision not to take the AOC to court.

"I told them this when they signed the ‘landmark agreement,'" Thayer recalled of his conversation with the OOC in 2006. "I told them, 'Why aren't you holding [the AOC] responsible for the citations, and not only citations, but the reissuing of citations? Now you’re going to give them another five years to fix the problem? You let them off the hook.'"

However belated the OOC's actions may have been, Eveleth said the complaint and its fallout carried real weight -- and, like Chrisler and Malecki, he is willing to give the AOC some credit for its compliance post-settlement.

"Filing the complaint sent a message that we will not put people’s lives at risk in circumstances when employing offices offer no viable solutions for abating a very serious hazard," he said. "This settlement could serve as a template for mutually resolving future complex abatements of dangerous safety hazards."

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