Apcompower Inc. v. State Of Wa, Dept. Of L & I ( 2013 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
APCOMPOWER INC., No. 43104 -1 - II
Respondent, UNPUBLISHED OPINION
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STATE OF WASHINGTON, DEPARTMENT
OF LABOR AND INDUSTRIES,
BJORGEN, J. — The Washington State Department of Labor and Industries ( Department)
I_ cited APComPower Inc. ( APC) for violations of the Washington Industrial Safety and Health
Act ( WISHA), chapter 49. 17 RCW, related to asbestos removal while performing work at the
Centralia steam plant. After an industrial appeals judge ( IAJ) found that APC had committed the
violations, and the Washington State Board of Industrial Insurance Appeals. (Board) affirmed
that decision by order, APC appealed the Board' s order to the superior court. The superior court
vacated the order after determining that APC' s intent to avoid asbestos work and reliance on
statements that no asbestos was present in the work area excused its lack of compliance. The
No. 43104 -1 - II
superior court also determined that the Department failed to show that APC knew of the presence
of asbestos or that the work exposed APC' s employees to asbestos.
The Department appeals the superior court' s decision. Rejecting APC' s arguments that
its subjective intent governed the applicability of the regulations, that it could rely on the plant
owner' s statements about the absence of asbestos to discharge its duty to comply with the
regulations, that it could not have known of the regulatory violations through the exercise of the
reasonable diligence, and that the Department needed to show its employees were exposed to
asbestos, we reverse the superior court and reinstate the Board' s order affirming the citation.
FACTS
APC contracted to perform boiler maintenance work at TransAlta' s steam plant in
Centralia, Washington. In the course of performing these services, APC assigned employees to
work on two boiler air preheaters, numbers 11 and 12, during a scheduled maintenance period in
May 2009.
The preheaters are large mechanical units that pipe hot gas emerging from the boilers in
close proximity to cold air entering the boilers. This allows for a heat exchange that warms the
incoming air, reducing thermal shock and stress on the boilers. To achieve an efficient heat
exchange, the preheaters are heavily insulated. To work on the underlying equipment, workers
must first remove this insulation.
Because the plant was built in 1972, its construction involved the extensive use of
asbestos products, especially in its insulation. APC' s contract with TransAlta states that APC
will not perform any asbestos abatement as part of the services it provides. APC is not a
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certified asbestos contractor, and the employees assigned to the work on the preheaters were not
certified asbestos workers.
In preparation for the work on preheaters 11 and 12, APC asked TransAlta whether the
insulation it needed to remove contained asbestos. Keith Ortis, the on -
site supervisor of
TransAlta' s asbestos consultant, informed Ralph Mitchell, APC' s foreman for the boiler work,
that the insulation in APL' s work area did not contain asbestos. However, Ortis did mention that
the plant used asbestos block material in the vicinity of preheaters 11 and 12. Ortis drew
Mitchell a map laying out his recollection of the location of asbestos -containing insulation.
Based on the map and Mitchell' s discussion with Ortis, a job safety analysis prepared by APC
and approved by TransAlta does not list asbestos as a safety concern.
On May 25, 2009, APC began removing insulation between preheaters 11 and 12. The
work site was not demarcated and controlled as a regulated area, nor did it have a negative
pressure enclosure or a decontamination area. APC' s employees worked without high efficiency
particulate air ( HEPA) respirators,) and APC never performed initial or continuing monitoring of
its workers' asbestos exposure.
After removing a thick layer of fiberglass wool insulation, APC employees encountered
dry white block insulation in one -foot by one -foot by inch
two - pieces. One employee estimated
that he and his partner removed between 8 and 15 of the blocks from the preheaters before
stopping work. After removing the block insulation, APC' s employees broke up the blocks and
1 One of the employees testified he may have had a HEPA respirator at one point in his
testimony, although he later stated that even if the respirator had a HEPA filter, it had no positive
air supply as required by WAC 296- 62- 07715( 4)( a)( ii).
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No. 43104 -1 - II
placed the pieces into 50- or 60- gallon clear plastic garbage bags. They later disposed of these
bags in the plant' s dumpsters.
After APC' s employees had finished removing the insulation from the work area,
Mitchell walked by. One of the employees picked up a small piece of the block insulation lying
nearby and asked Mitchell if he should have any safety concerns. Mitchell told the employee to
wait while he summoned Ortis to examine the material. When Ortis arrived, he informed
Mitchell and the worker that the block contained asbestos.
APC' s safety coordinator then directed the employees to proceed to the nearest bathroom,
where they placed their clothing and boots in sealed contamination bags. The safety coordinator
did not use a HEPA vacuum to decontaminate the men before asking them to leave the work
area.
In order to test whether the insulation the APC employees handled actually contained
asbestos, Ortis later retrieved a small sample of the white block material from one of the clear
plastic bags placed in a dumpster. A laboratory tested this piece of material, as well as material
sampled from the vicinity of preheaters 'l l and 12. All of the materials contained asbestos.
The Department investigated the incident and cited APC for serious violations of
Washington Administrative Code ( WAC) regulations related to working with asbestos
2
containing materials. APC appealed the citation, and the parties contested the violations before
2
Specifically, the citation alleged that APC performed an asbestos abatement project without
obtaining the necessary certification in violation of WAC 296 -65- 030( 1); failed to establish a
regulated area, negative pressure enclosure, and decontamination area surrounding or adjacent to
thework area in violation of WAC 296 -62- 07711( 1), - 07712( 7)( a), and - 07719( 3)( b)( i); failed to
employ certified asbestos workers to perform a class I abatement project in violation of WAC
296- 62- 07722( 3)( failed to wet the asbestos before disturbing it in violation of WAC 296- 62 -
a);
07712( 2)( c); failed to decontaminate workers with a HEPA vacuum before allowing them to
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No. 43104 -1 - II
an IAJ.
The IAJ determined that in the performance of its contract APC had performed asbestos
4
work under the governing regulatory scheme. The IAJ determined that APC' s intent was
irrelevant to the applicability of the regulations. The IAJ also concluded that APC could not rely
on Ortis' s statements regarding the presence of asbestos, or the " confusing" map that he drew, in
order to excuse its lack of compliance with the asbestos related regulations. 3 Board of Industrial
Insurance Appeals Record ( BR) at 45. The IAJ rejected APC' s argument that the Department
could not show any worker exposure to asbestos after finding the Department adequately showed
of-custody.
chain - The IAJ reached this conclusion by noting that the bag containing the sample
Ortis removed was distinctively clear, as opposed to the normal bags used to dispose of asbestos
containing material, and also that the contents of the bag matched the materials APC' s workers
claimed to have disposed of. After rejecting APC' s arguments, the IAJ upheld the citation in its
entirety in the proposed decision and order.
APC appealed this proposed decision and order to the Board. The Board denied APC' s
petition for review and adopted the proposed decision and order as its own order.
leave the work ,area and remove their clothing in violation of WAC 296- 62- 07719( 3)( b)( iii);
failed to supply workers the proper positive air pressure HEPA respirators in violation of WAC
296- 62- 07715( 4)( a)( ii); failed to employ an asbestos trained competent person on site in
violation of WAC 296 -62- 07728( 1); and failed to perform and initial exposure assessment or
daily monitoring in violation of WAC 296- 62- 07709( 3)( a)( ii) and ( c)( i).
3 The Board record is partially sequentially paginated, but this pagination does not include the
hearing transcripts and exhibits. Consequently, we cite to testimony from the hearing by
transcript date and page number and cite to exhibits solely by hearing exhibit number.
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No. 43104 -1 - II
APC then appealed the Board' s order to the superior court, which reversed the order and
vacated the citation in its entirety. The superior court determined that the regulations the
Department cited APC for violating only applied if APC intended to perform asbestos abatement
work. The superior court determined that APC had no such intent and that it had taken steps to
ensure it did not do any asbestos abatement work. The superior court also determined that the
Department could not show the employees were exposed to asbestos because it could not show
the samples tested for asbestos were from the insulation the employees had handled.
The Department appeals, asking us to reverse the superior court and reinstate the Board' s
order.
ANALYSIS
The legislature enacted WISHA "`` to assure, insofar as may reasonably be possible, safe
and healthful working conditions for every man and woman working in the state _ of
Washington. "' Adkins v. Aluminum Co., 110 Wash. 2d 128, 146, 750 P.2d 1257, 756 P.2d 142
1988) ( quoting RCW 49. 17. 010). Under WISHA, the Department both promulgates
administrative rules to effectuate WISHA' s aim of ensuring workplace safety and enforces these
regulations through its power to impose civil penalties and to request the prosecuting attorney to
commence criminal prosecutions. RCW 49. 17. 040, . 180, . 190.
RCW 49. 17. 180 divides civil violations of WISHA, or regulations the Department
promulgates under WISHA' s authority, into three categories: willful or repeat, serious, and not
serious. RCW 49. 17. 180( 1), ( 2), ( 3). A serious violation occurs
in a workplace if there is a substantial probability that death or serious physical
harm could result from a condition which exists, or from one or more practices,
means, methods, operations, or processes which have been adopted or are in use
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No. 43104 -1 - II
in such workplace, unless the employer did not, and could not with the exercise of
reasonable diligence, know of the presence of the violation.
RCW 49. 17. 180( 6). To prove a serious regulatory violation under RCW 49. 17. 180( 6), the
Department must show that. ( 1) the regulation applies, ( 2) a regulatory violation occurred, ( 3)
employees were exposed to the regulatory violation, (4) the employer knew or could have known
of the regulatory violation with reasonable diligence, .and ( 5) there is a substantial probability the
violation could result in death or serious physical harm Wash. Cedar & Supply Co., Inc. v. Dep' t
of Labor & Indus., 119 Wn. App. 906, 914, 83 P.3d 1012 ( 2004) ( quoting D.A. Collins Constr.
Co. v. Sec' y ofLabor, 117 F.3d 691, 694 ( 2d Cir. 1997).
A. Standard of Review
We review 'a decision by the Board directly based on the record before it when it made
the decision. J. Dunn Nw., Inc.
E. v. Dep' t of Labor & Indus., 139 Wash. App. 35, 42, 156 P.3d
250 ( 2007). In that review, "[ t]he findings of the board or the hearing examiner where the board
has denied a petition or petitions for review with respect to questions of fact, if supported by
substantial_ evidence on _the record _considered - as _ a- whole, _shall _beconclusive." RCW__
49: 17. 150( 1). Substantial evidence is evidence " sufficient to. persuade a fair -
minded person of
the truth of the matter asserted." Katare v. Katare, 175 Wash. 2d 23, 35, 283 P.3d 546 ( 2012), cert.
denied, 133 S. Ct. 889, 184 L. Ed. 2d 661 ( 2013). If we determine substantial evidence supports
the findings of fact, we then look to whether the findings support the Board' s conclusions of law.
J.E. Dunn, 139 Wash. App. at 42.
We review de novo the interpretation of a statute or regulation. Roller v. Dep' t ofLabor
Indus., 128 Wn. App. 922, 926, 117 P.3d 385 ( 2005) ( quoting Cobra Roofing Serv., Inc. v.
Dep' t of Labor & Indus., 122 Wn. App. 402, 409, 97 P.3d 17 ( 2004)). We review the Board' s
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No. 43104 -1 - II
interpretation of a statute or regulation under an error of law standard. Roller, 128 Wash. App. at
926 ( quoting Cobra Roofing, 122 Wn. App. at 409). Under this standard, we may substitute our
interpretation for the Board' s if we determine the Board erred. Roller, 128 Wash. App. at 926
quoting Cobra Roofing, 122 Wash. App. at 409).
B. APC violated the cited regulations in chapters 296 -62 and 296 -65 WAC
The Department cited APC for violating several WAC regulations governing asbestos
work, and the Board affirmed the citation in its entirety. APC challenges ( 1) the Department' s
showing on the first element of a serious violation by claiming that the asbestos related
regulations did not apply because APC did not intend to perform asbestos abatement work and
relied on TransAlta' s assurances of an asbestos -free work site; ( 2) the Department' s showing on
the fourth element of a serious violation by claiming APC had no knowledge of the presence of
asbestos at the site; and ( 3) the Department' s showing on the fifth element of a serious violation
by claiming the Department could not show serious physical harm or death could result from the
incident because the Department could not. show the regulatory violation exposed the workers to
asbestos. See Wash. Cedar, 119 Wash. App. at 914 ( discussing the five elements of a serious
violation). AFC' s arguments regarding the first element find no support in the text of the
regulations at issue and controlling case law requires us to reject the arguments it makes with
respect to the fourth and fifth elements.
No. 43104 -1 - II
1. APC' s intent to avoid asbestos abatement work and its reliance on Ortis' s statement
that no asbestos was present in the work site did not render the requirements of WAC chapters
296 -62 and 296 -
65 inapplicable to AFC' s work.
APC argues that its intention to avoid asbestos abatement work and the steps it took to
ensure it performed no such work rendered the WAC provisions governing asbestos abatement
work inapplicable. It cites to its contract with TransAlta, which states that it will not perform
asbestos work, its supervisor' s conversation with Ortis about the absence of asbestos at the work
site, and the job safety analysis it did with TransAlta in support of these contentions. Although
APC did make efforts to ensure that its work site contained no asbestos, and did rely on
TransAlta' s assurance of an asbestos free work site, it in fact performed class I asbestos work,
and its discharge of its contractual duties constituted an asbestos abatement project. The
regulations applied regardless of APC' s intent or reliance on TransAlta' s assurances.
i. APC' s intent to avoid asbestos work does not make the regulations
inapplicable
We interpret agency regulations in the same manner we interpret statutes. Potelco, Inc. v.
Dep' t of Labor & Indus., 166 Wn. App. 647, 653, 272 P.3d 262 ( 2012). We attempt to give
effect to the promulgating agency' s intent by discerning the regulation' s plain meaning. See
Dep' t of Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9 - 12, 43 P.3d 4 ( 2002). We discern
the regulation' s plain meaning by examining its plain text as well as any related regulations. See
Campbell & Gwinn, 146 Wash. 2d at 10 -12. If the regulation is ambiguous after this plain meaning
analysis, we apply canons of construction in order to interpret the regulation. See Jongeward v.
BNSFRy. Co., 174 Wash. 2d 586, 600, 278 P.3d 157 ( 2012).
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The plain text of the regulations at issue provides no support to APC' s argument that the
regulations did not apply to its actions. Each regulation, by its text, applies where the individual
performs class I asbestos work or an asbestos abatement project, regardless of the employer' s
intent. Further, the Department has stated its intent to regulate all workplace exposure to
asbestos. WAC 296 -62- 07701( 1) ( " WAC 296 -62 -07701 through 296 -62 -07753 applies to all
occupational exposures to asbestos in all industries covered by chapter 49. 17 and chapter 49.26
RCW. "). Exposure is exposure, intentional or not. We must give effect to the plain meaning of
the statute and the purpose of the regulatory structure expressed by the WACs. This requires us
to reject APC' s argument.
Even if we accepted APC' s argument that the omission of any type of intent element
from the regulations at issue left them ambiguous, and thus susceptible to construction, several
canons of construction require us to reject the reading offered by APC.
First, WISHA is a remedial statute, and we construe both the statute itself and any
regulations promulgated under its authority liberally. Adkins, 110 Wash. 2d at 146 ( quoting RCW
49. 17. 010). WISHA aims to secure a " safe and healthful" work environment for all Washington
workers. RCW 49. 17. 010. Reading these regulations to apply regardless of employer intent
furthers WISHA' s goal by prompting employers to guard against mistakes in identifying
asbestos containing material, as happened here.
Second, the Department has expertise with WISHA and the regulations at issue. We give
substantial weight" to the Department' s interpretation of regulations with which it has expertise
and will uphold it
that interpretation if "`` reflects a plausible construction of the language of the
statute and is not contrary to the legislative intent. "' Cobra Roofing, 122 Wash. App. at 409
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No. 43104 -1 - II
of Soc. & Health Servs., 82 Wash. App. 495, 518,
quoting Seatome Convalescent Ctr. v. Dep' t
919 P.2d 602 ( 1996)). The Department reads the omission of an intent element in these
regulations to mean that there is no such element. This is a plausible interpretation of the
regulations and does not run counter to the legislative intent behind WISHA. Our deference to
the Department requires us to adopt its plausible interpretation of these regulations.
Third, APC asks us to determine that a serious violation must be willful. The legislature
expressly made willful WISHA violations distinct from serious WISHA violations, providing
greater penalties for willful violations. RCW 49. 17. 180( 1), ( 2). We find no definition for
willful" in the statutes or regulations at issue and therefore give the term its ordinary dictionary
meaning. State v. Gonzalez, 168 Wash. 2d 256, 263, 226 P.3d 131 ( 2010). " Willful" is defined as
2: done deliberately: not accidental or without purpose: INTENTIONAL." WEBsTER' s THIRD
NEW INTERNATIONAL DICTIONARY 2617 ( 1966). APC' s argument, that its intent mattered as to
whether it committed a serious violation, thus asks us to hold that the Department must prove a
willful violation in order to prove a serious one. This argument asks us to conflate serious and
willful violations and render portions of RCW 49. 17. 180( 1) superfluous, which we decline to do.
Jongeward, 174 Wash. 2d at 601.
Finally, the legislature has specifically recognized the dangers posed by asbestos and
required the Department to reduce that threat under WISHA. RCW 49. 26. 010, . 140. APC' s
interpretation allows companies to easily evade regulations governing asbestos abatement
projects by ignoring their possible existence. This is a strained and absurd reading of regulations
promulgated to give effect to the legislature' s concern about workplace asbestos exposure, and
we avoid such readings. See City ofSeattle v. Fuller, 177 Wash. 2d 263, 270, 300 P.3d 340 ( 2013).
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No. 43104 -1 - II
With our rejection of APC' s intent argument, substantial evidence supports the Board' s
conclusion that the regulations applied. The WAC requires employers to assume that the type of
material at issue here, thermal system insulation present in a building constructed before 1980,
contains asbestos unless the employer rebuts this presumption. WAC 296 -62 -07703 ( definition
of presumed asbestos containing material and asbestos) . 4 Removal of thermal system insulation
is considered class I asbestos work, and its removal is, by definition, an asbestos project. WAC
296 -62 -07703 ( definition of class I asbestos work); WAC 296- 62- 07722( 3)( a) ( " Class I
asbestos] work must be considered an asbestos project. "). An asbestos project involving three
or more square or linear feet of material is an asbestos abatement project, and undisputed
testimony indicated that AFC' s employees removed three or more square feet of thermal system
insulation. WAC 296 -62 -07703 ( definition of an asbestos abatement project). The regulations at
issue applied to APC' s actions.
ii. Any reliance on Ortis' s statement that the work area had no asbestos does
not render the regulations inapplicable.
As APC notes, WAC 296- 62- 07721( 1)( c)( ii) required TransAlta to perform a good faith
inspection of the work site to determine the presence of asbestos before soliciting subcontracting
bids. TransAlta could avoid this good faith inspection if its agent, Ortis, was " reasonably certain
that asbestos will not be disturbed by the project" or " assume[ d] that the suspect material
contain[ ed] asbestos and handl[ ed] the material in accordance" with chapter 296 -62 WAC.
WAC 296- 62- 07721( 1)( c)( ii)(B). TransAlta was also required by WAC 296 -62 -07721 to give
4
Ignoring this presumption could itself be considered " willful" but the Department has not made
this argument.
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No. 43104 -1 - II
contractors a written statement either of the reasonable certainty of nondisturbance of asbestos or
of assumption of the presence of asbestos if a good faith inspection was not carried out.
APC had a duty to treat the thermal system insulation it contracted to remove as asbestos
containing material unless it rebutted the presumption that the insulation contained asbestos.
WAC 296 -62 -07703 ( definition of "[ p] resumed asbestos -containing material "), - 07721( 1)( b).
This from TransAlta' s duty to perform a good faith analysis. See RCW
duty existed apart
49. 17. 180( 6) ( employers must exercise reasonable diligence to learn of regulatory violations);
WAC 296- 62- 07721( 1)( b).
WAC 296 -62- 07721( 3) provides two methods for rebutting the presumption that the
insulation contained asbestos; both require analytical testing. See WAC 296- 62- 07721( 3)( b)( i),
ii). By enumerating only these two methods, the legislature excluded the good faith inspection
by the owner under WAC 296- 62- 07721( 1)( c)( ii) and the owner' s statement. that asbestos will
not be disturbed under WAC 296- 62- 07721( 1)( c)( ii)(B) as a means of rebutting the presumption
that thermal system insulation in a building constructed before 1980 contains asbestos. See State
v. Ortega, 177 Wash. 2d 116, 124, 297 P.3d 57 ( 2013) ( "`` to express or include one thing implies
the exclusion of the other. "') ( quoting BLACK' S LAw DICTIONARY 661 ( 9th ed. 2009)). Ortis' s
statement thus could not relieve APC of its duty to either assume the insulation contained
asbestos or demonstrate that it did not. Since APC did not rebut the presumption under WAC
296- 62- 07721( 3)( b)( i) or ( ii), it had a duty to treat the insulation as asbestos containing material
and comply with the regulations governing class I asbestos work and asbestos abatement
projects. APC failed to do so.
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No. 43104 -1 - II
2. APC had actual or constructive knowledge that its workers performed work on an
asbestos abatement project without complying with the regulations found in chapters 296-
62 and 296 -65 WAC.
Next, APC urges us to hold that it had no knowledge that its workers did or would
encounter asbestos during the work on preheaters 11 and 12. The Department accepts this
framing of the issue and claims that APC knew or could have known through reasonable
diligence that the workers would encounter asbestos.
To establish a serious violation, RCW 49. 17. 180( 6) requires the Department to show that
the employer knew, or could have known through the exercise of reasonable diligence, of a
regulatory violation. See, e. g., Erection Co., Inc. v. Dep' t of Labor & Indus., 160 Wash. App. 194, ,
203, 248 P.3d 1085, review denied, 171 Wash. 2d 1033, 251 P.3d 664 ( 2011); Wash. Cedar, 119
Wn. App. at 914, 916. The Board made no explicit findings regarding APC' s knowledge of a
violation or its ability to know of a violation with reasonable diligence. APC contends that the
failure to make these findings requires reversal, citing state and federal cases concerning a lack
of administrative fact finding.
Under RCW 34. 05. 562( 2)( a) the appropriate response to the absence of findings is not
dismissal, but remand for the Board to make the necessary factual determinations. However,
where the evidence is uncontroverted, we are in as good a position to find facts as the lower
tribunal and any remand for the entry of findings of fact would be a useless act. Cogswell v.
Cogswell, 50 Wash. 2d 597, 601 - 02, 313 P.2d 364 ( 1957). APC' s appeal presents a case where a
remand would be a useless act.
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No. 43104 -1 - II
The principle that ignorance of the law is no defense applies whether the law be a statute
or a duly promulgated and published regulation." United States v. Int' l Minerals & Chem. Corp.,
402 U.S. 558, 563, 91 S. Ct. 1697, 29 L. Ed. 2d 178 ( 1971). We may apply this principle,
especially when the law imposes a duty of investigation. Cf.Samuelson v. Cmty. Coll. Dist. No.
2, 75 Wn. App. 340, 347 -48, 877 P.2d 734 ( 1994). RCW 49. 17. 180( 6), by requiring that
employers exercise reasonable diligence to learn of regulatory violations, imposes a duty of
investigation.
Because we charge APC. with knowledge of the WAC, we presume it knew that the
preheater project was class I asbestos work and an asbestos abatement project, given the volume
of presumed asbestos containing insulation involved. We also presume that APC understood it
needed to comply with ' the WAC provisions governing this work unless it rebutted the
presumption that the insulation contained asbestos. Given this knowledge, and APC' s duty to
exercise reasonable diligence to know of regulatory violations under RCW 49. 17. 180( 6), we find
that APC could have known of these violations with reasonable diligence. APC simply would
have needed to see its employees performing the work to know they were not using respirators,
negative pressure enclosures, regulated areas, HEPA vacuum decontamination procedures, or
exposure monitoring as required by chapters 296 -62 and 65 WAC.
296 - See Erection Co., 160
Wash. App. at 206 -07 ( employer could know of readily apparent violations in work area with
reasonable diligence). A simple check of APL' s files would show that APC was not a certified
asbestos contractor, that its employees were not certified asbestos workers, and that APC did not
employ a competent person within the meaning of WAC 296 -62 -07703 for the preheater work.
Given this finding, we affirm the Board' s conclusion that APC committed serious violations
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because we find that APC could have, with reasonable diligence, known of the regulatory
violations.
3. APC' s violations could have resulted in death or serious injury.
Finally, APC challenges the showing the Department made with respect to whether its
violation could have resulted in death or serious physical injury, the fifth element the Department
must prove to demonstrate a serious violation. APC contends that the Department failed to show
its employees had any exposure to asbestos because, it claims, the Department cannot trace the
samples it took, and which tested positive for asbestos, to the insulation APC' s employees
removed from the preheaters. APC also maintains that, even assuming the employees had
contact with asbestos, their limited exposure carried no risk of death or substantial harm.
We have adopted the majority federal interpretation of the language in RCW
49. 17. 180( 6) requiring a " substantial probability that death or serious physical harm could
result ". Lee Cook Trucking & Logging v. Dep' t of Labor & Indus., 109 Wash. App. 471., 478 -82,
36 P.3d 558 ( 2001). Under Lee Cook, if the Department shows that death or serious physical
injury could result from a regulatory violation, the Department has made the necessary showing
for the fifth element of its case. Lee Cook, 109 Wn. App. at 482. Thus, "[ i]f the harm that the
regulation was intended to prevent is death or serious physical injury, then its violation is serious
per se." Lee Cook, 109 Wn. App. at 479 ( quoting California Stevedore & Ballast Co. v.
Occupational Health Review Comm' 517 F.2d 986, 988 n. l ( 9th Cir. 1975))
Safety & n,
emphasis omitted) ( internal quotations omitted). We apply this standard because
w]here violation of a regulation renders an accident resulting in death or serious
injury possible, however, even if not probable, [ the legislature] could not have
intended to encourage employers to guess at the probability of an accident in
Wei
No. 43104 -1 - II
deciding whether to obey the regulation. When human life or limb is at stake, any
violation of a regulation is serious.
Lee Cook, 109 Wn. App. at 478 -79 ( quoting California Stevedore & Ballast, 517 F.2d at 988)
emphasis omitted).
As the Department points out, under Lee Cook, it did not need to show APL' s workers in
fact had exposure to asbestos to show a serious violation. Undisputed testimony before the
Board indicated that asbestos exposure can result in " lung disease, asbestosis, inflammation of
the pleura, mesothelioma, [ and] cancers of the lung" and that these conditions " ultimately can
result in death." BR ( May 17, 2010 Transcript) at 102, 114. APC allowed its workers to
perform an asbestos abatement project without complying with the regulations promulgated to
protect its workers from these dangers. The Board' s findings support its conclusion that APC
committed serious violations. Accord Sec 'y of Labor v. Trinity Indus., Inc., 504 F.3d 397, 401
3d Cir. 2007) ( " Given that the violations made it possible that the workers could unwittingly
stumble into large amounts of asbestos without adequate protection, there was no need to show
the contractor' s] employees suffered any actual exposure to _
asbestos, much less ... `` significant _
5
exposure "' in order to show a serious violation). We affirm the Board' s decision based on our
holding in Lee Cook.
APC argues also that " isolated" exposure does not lead to a " substantial probability of
death or serious physical harm." Br. of Resp' t at 47. In support, APC cites decisions under
WISHA.and the Occupational Safety and Health Act (OSHA) that hold that isolated exposure to
asbestos cannot constitute a serious violation. Each of these cases predates Lee Cook, which
5
Because WISHA parallels the Occupational Safety and Health Act (OSHA), we may look to
federal cases interpreting OSHA as persuasive authority. Lee Cook, 109 Wash. App. at 478.
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overruled their reasoning. APC cannot rely on them to contest the fifth element of the
Department' s case. So long as exposure to asbestos could lead to serious physical injury or
6
death, and unchallenged testimony indicates that it could, a serious violation occurred.
CONCLUSION
We reverse the superior court' s decision and reinstate the Board' s order affirming APC' s
citation for violations of regulations governing asbestos related work.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Br RGE; J
We concur:
f
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Scientific research has, as yet, failed to discover any safe exposure level for asbestos.
Hernandez v. Amcord, Inc., 156 Cal. Rptr. 3d 90, 94 ( Cal Ct. App. 2013).
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