Housing Authority Of King County v. Wa State Department Of Labor & Industries ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
DEPARTMENT OF LABOR & No. 80408-1-I
INDUSTRIES,
ORDER GRANTING MOTION
Respondent, FOR RECONSIDERATION,
WITHDRAWING OPINION,
v. AND SUBSTITUTING OPINION
HOUSING AUTHORITY OF KING
COUNTY,
Appellant.
Respondent, Department of Labor and Industries, has filed a motion for
reconsideration of the opinion filed in the above matter on June 8, 2020. The court has
determined that respondent’s motion for reconsideration should be granted, the opinion
should be withdrawn and a substitute opinion be filed. Now, therefore, it is hereby
ORDERED that respondent’s motion for reconsideration is granted. It is further
ORDERED that the opinion filed on June 8, 2020, is withdrawn and a substitute
opinion be filed.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DEPARTMENT OF LABOR & No. 80408-1-I
INDUSTRIES,
DIVISION ONE
Respondent,
UNPUBLISHED OPINION
v.
HOUSING AUTHORITY OF KING
COUNTY,
Appellant.
SMITH, J. — The King County Superior Court reversed the Board of
Industrial Insurance Appeal’s (Board) order vacating the Department of Labor
and Industries’ (Department) issuance of a citation against Housing Authority of
King County. Housing Authority appeals, asserting that the Board correctly
determined that Housing Authority complied with the Department’s regulation that
requires Housing Authority to have performed a good faith inspection for
asbestos containing material. The regulation also requires Housing Authority to
maintain the inspection reports.
Because Housing Authority’s contractor misplaced one volume of its
asbestos maintenance program and because the remaining volume did not
contain the laboratory results, sample locations, or the inspector’s credentials,
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80408-1-I/2
Housing Authority failed to maintain the report as required by the cited regulation.
Therefore, we affirm the superior court’s decision and reverse the Board’s order.
FACTS
Housing Authority, a municipal corporation, provides public housing in
King County. To this end, Housing Authority owns Fairwood Apartments in
Renton, Washington. And Housing Authority contracts with Allied Residential to
run the day-to-day operations for Fairwood Apartments.
A Department regulation—promulgated pursuant to Washington Industrial
Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW—requires building
owners to perform or have performed an asbestos survey, maintain the survey’s
report, and provide the report to the Department upon request. Pursuant to this
regulation, in 1995, Clayton Environmental Consultants completed an Asbestos
Operations and Maintenance Program for Fairwood Apartments. The program
contained three volumes.
Volume 1’s stated objective was to provide for the “management of
asbestos-containing material (ACM) in the Fairwood Apartments.” Volume 1,
section 4 provided, among other things, a short summary of a survey of Fairwood
Apartments completed by Phase I Inc., an asbestos testing and removal
company. Section 4 listed the known ACM present at the apartments, i.e.,
(1) ceiling texture material, (2) gypsum board and joint compound, (3) floor tile
and mastic, and (4) roofing material. Phase I Inc.’s owner, Eric Kieselbach, later
testified that he did not recall his company’s work at Fairwood Apartments and
had no documentation. But he explained that Phase I Inc. completes two types
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of inspections: (1) “a Phase I site inspection,” which includes limited asbestos
sampling that does not comply with Asbestos Hazard Emergency Response Act
(AHERA) standards, and (2) an asbestos survey, which includes photographs,
laboratory result analyses, chain of custody information, locations of samples,
and floor plans showing where the inspector took asbestos samples. An AHERA
accredited inspector performs the asbestos surveys.
Appendix B in volume 1 provided a template for notifying the building’s
employees of ACM. The template stated that “Housing Authority . . . completed a
preliminary visual survey to determine the presence of [ACM,] . . . [and t]he
building was inspected in accordance with the Environmental Protection Agency
guidelines for [ACM].”
According to Housing Authority, volume 2 included “copies of the
applicable regulations.” And while there is no evidence of what was contained in
volume 3, Housing Authority contends that volume 3 contained “backup studies.”
Housing Authority provided volume 3 to Allied Residential, but Allied Residential
misplaced it.
In 2001, Housing Authority obtained an asbestos survey for roofing
material in conjunction with roofing construction. In 2014, it obtained another
asbestos survey for flooring material throughout the apartment complex. In
2016, Allied Residential hired OV Construction, All Service Plumbing, and
American Floors and Blinds (contractors) to perform work at Fairwood
Apartments.
Based on the construction work completed at the apartments, the
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Department received a complaint. Compliance Safety and Health Officers
(CSHO) Tom Vroman and Timothy Garlock inspected Housing Authority, Allied
Residential, and the contractors regarding the work being performed. CSHO
Garlock collected samples from the building indicating “there was asbestos.”
And CSHO Vroman requested documentation of any information pertaining to
asbestos at Fairwood Apartments that Housing Authority gave Allied Residential.
Housing Authority provided volume 1 of the program and the 2001 inspection
report from the roofing construction. Housing Authority did not provide volume 2
or volume 3 to the Department.
CSHO Vroman later determined that Housing Authority violated
Department regulations promulgated under WISHA. Specifically, CSHO Vroman
found that the program “lack[ed] specific knowledge of the presence, quantity,
and location of asbestos on-site (all items that are determined in an AHERA
accredited Good Faith Inspection).” For this reason and because the report did
not list an accredited inspector or provide laboratory results, CSHO Vroman
concluded that Housing Authority’s program did not meet the requirements of a
good faith inspection report.
On February 3, 2017, the Department issued one serious violation
(Violation 1) and one general violation (Violation 2) against Housing Authority.
Violation 1 alleged that Housing Authority “did not ensure that employees and
subcontractors assigned to do work on an asbestos project at Fairwood
Apartments were certified asbestos workers.” And Violation 2 alleged that
Housing Authority “did not perform or cause to be performed, a good faith
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building inspection, by an accredited inspector, to determine which building
materials contained asbestos.”
After the Department issued the violations, Housing Authority had another
survey performed. Housing Authority provided the resulting report to the
Department. And Mark Abernathy, Housing Authority’s risk manager, later
testified that the report indicated nothing materially different from the 1995
program.
Housing Authority appealed the violation to an Industrial Appeals Judge
(IAJ). And thereafter, Housing Authority moved for partial summary judgment,
seeking dismissal of Violation 1. In response, the Department moved to vacate
Violation 1. And the IAJ issued an order granting the Department’s motion to
vacate, thereby denying Housing Authority’s motion for partial summary
judgment.
On April 9, 2018, the IAJ held a hearing on Violation 2. Thereafter, the IAJ
issued a proposed decision and order vacating the general violation.
Specifically, the IAJ determined that the program complied with the Department’s
regulations because the program identified building materials containing
asbestos and provided specific instructions on how to maintain or repair those
building materials.
The Department petitioned for review by the Board, but the Board denied
the petition for review without comment, resulting in the Board’s acceptance of
the IAJ’s proposed decision. Thus, the Board adopted the following findings of
fact and conclusions of law:
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No. 80408-1-I/6
4. In 1995, the Housing Authority of King County, through Clayton
Environmental Consultants, an accredited inspector, performed
a good faith building inspection of the Fairwood Apartments to
identify and determine asbestos containing materials at the
apartment complex. Clayton Environmental Consultants
produced a three-volume report of its inspection. The Housing
Authority of King County provided a complete copy of all
volumes of the inspection report to Allied Residential, whom
the Housing Authority of King County hired to conduct the day
to day management and maintenance of the Fairwood
Apartments.
5. The Housing Authority of King County complied with the
requirements of [Washington Administrative Code] (WAC) 296-
62-07721(2)(b)(ii) in that before it authorized or allowed any
construction, renovation, remodeling, maintenance, repair, or
demolition project, it, as the facility owner, caused to be
performed a good faith inspection to determine whether
materials to be worked on or removed contained asbestos, and
the inspection was documented by a written report maintained
on file and made available upon request to the director of the
Department.
The Board therefore concluded that “Housing Authority . . . did not commit a
general violation of WAC 296-62-07721(2)(b)(ii) as specified in Violation 2, Item 1
of Corrective Notice.”
The Department appealed the Board’s decision to King County Superior
Court. The superior court determined that Housing Authority violated WAC 296-
62-07721(2)(b)(ii) because it “failed to keep[—or ‘maintain’—]the 1995 good faith
inspection report in its existing state and to preserve it from failure or decline.”
Specifically, the court found that “[t]he plain language of the code . . . requires the
entire report to be maintained on file.” Thus, the superior court reversed the
Board’s decision and affirmed Violation 2.
Housing Authority appeals.
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ANALYSIS
Housing Authority contends that the superior court erred when it reversed
the Board’s decision and determined that Housing Authority violated WAC 296-
62-07721(2)(b)(ii). We disagree.
Under WISHA, “[t]he Department bears the initial burden to prove a
violation.” Mowat Constr. Co. v. Dep’t of Labor & Indus., 148 Wn. App. 920, 924,
201 P.3d 407 (2009); WAC 263-12-115(2)(b). Here, the Department cited
Housing Authority for a violation of WAC 296-62-07721(2)(b)(ii), which states:
Before authorizing or allowing any construction . . . , a[ building’s]
owner . . . must perform, or cause to be performed, a good faith
inspection to determine whether materials to be worked on or
removed contain asbestos. The inspection must be documented by
a written report maintained on file and made available upon request
to the director . . . .
. . . [and] must be conducted by an accredited inspector.
In short, the regulation requires building owners to complete a good faith
inspection using an accredited inspector and to maintain the report produced
therefrom.
“We “review[ ] a decision by the Board directly, based on the record before
the agency.” Mowat Constr. Co., 148 Wn. App. at 925. To this end, “we review
the Board’s findings of fact for substantial evidence” and “‘view the evidence and
reasonable inferences in the light most favorable to [Housing Authority,] the
prevailing party.’” Pro-Active Home Builders, Inc. v. Dep’t of Labor & Indus., 7
Wn. App. 2d 10, 16, 432 P.3d 404 (2018) (quoting Frank Coluccio Constr. Co. v.
Dep’t of Labor & Indus., 181 Wn. App. 25, 35, 329 P.3d 91 (2014)). “We review
the Board’s conclusions of law de novo to determine whether the Board correctly
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No. 80408-1-I/8
applied the law and whether the Board’s findings of fact support its conclusions
of law.” Pro-Active Home Builders, 7 Wn. App. 2d at 16.
As an initial matter, Housing Authority asserts that the Department failed
to assign error to the Board’s finding of fact 5 and that it therefore cannot
challenge it on appeal. The Department argued at the superior court that it was
“not asking the Court to reverse any of the factual findings” because it was
raising “only issues of law.” To this end, the Department contested the Board’s
conclusion that Housing Authority maintained the report. While the Board
labeled the conclusion a finding of fact, the determination in finding of fact 5 that
Housing Authority maintained its report as required by the Department’s
regulations involved a conclusion of law. And even “if a conclusion of law is
labeled as a finding of fact, . . . it will be treated as a conclusion of law.” Dep’t of
Labor & Indus. v. Lyons Enters., Inc., 186 Wn. App. 518, 529-30, 347 P.3d 464(2015), aff’d, 185 Wn.2d 721, 374 P.3d 1097 (2016). Thus, because the
Department discussed this conclusion of law at the superior court, we disagree
with Housing Authority and conclude that the Department properly raised the
issue below.
Because “[w]e interpret agency regulations as if they were statutes,” Top
Cat Enters., LLC, v. City of Arlington, 11 Wn. App. 2d 754, 760, 455 P.3d 225(2020), and because we must discern the meaning of “maintain” within the
regulation, whether Housing Authority maintained its report in compliance with
WAC 296-62-07721(2)(b)(ii) presents an issue of statutory interpretation that we
review de novo. See Dep’t of Labor & Indus. v. Gongyin, 154 Wn.2d 38, 44, 109
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No. 80408-1-I/9
P.3d 816 (2005). “‘If a regulation is unambiguous, intent can be determined from
the language alone, and we will not look beyond the plain meaning of the words
in the regulation.’” Top Cat Enters., LLC, 11 Wn. App. 2d at 761 (quoting Mader
v. Health Care Auth., 149 Wn.2d 458, 473, 70 P.3d 931 (2003)). To that end, if a
word is not defined in a regulation, it is “given [its] ordinary definition as defined in
the dictionary.” Dep’t of Labor & Indus. v. Tyson Foods, Inc., 143 Wn. App. 576,
582, 178 P.3d 1070 (2008).
Here, the regulation is unambiguous because the intent of the regulation is
clear: a building owner must perform or have performed an asbestos survey by
an accredited inspector, maintain the survey report, and provide it to the
Department. And “maintain” is not defined in the regulation. But its ordinary
meaning is “to keep in a state of repair, efficiency, or validity[, and] preserve from
failure or decline.” W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2627
(2002). Here, Housing Authority concedes that volume 3 is missing. And volume
3 may have contained evidence of an accredited inspector’s completion of the
survey. But, as discussed below, volume 1 alone did not provide sufficient
evidence to make a determination as to whether the survey met the regulation’s
requirements. Without Housing Authority’s maintenance of the complete report
and the report’s provision to the Department, the Department cannot make an
informed determination as to whether the survey complied with and fulfilled the
purpose of the regulation. And WISHA regulations are to be interpreted liberally
in order to achieve their purpose of providing safe working conditions for every
worker in Washington. Frank Coluccio Constr. Co., 181 Wn. App. at 36. Without
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No. 80408-1-I/10
volume 3, the Department cannot assess the report’s validity. Therefore—
according to the plain language of the regulation—lacking volume 3, Housing
Authority violated WAC 296-62-07721(2)(b)(ii).
Housing Authority disagrees and asserts that volume 1 satisfied the
requirement to maintain the report. Volume 1 contains significant information on
the management of and best practices for dealing with ACM. However, the only
information relating to a good faith inspection is found in section 4, which simply
lists the four building materials known to contain asbestos. Section 4 does not
provide information on whether the listed ACMs exist throughout the whole
property, and it does not explain the sampling process, provide the laboratory
results, show the location of the samples taken, provide the inspector’s
accreditation, or give any insight into the type of ACM located throughout the
apartment complex.
In contrast, Housing Authority contends that the summary list contained in
section 4 of volume 1 applies to all units of the apartment complex. But it cites
testimony that does not provide evidence to that effect. Specifically, Abernathy
stated that section 4 applied to each apartment. But Abernathy also answered, “I
assume so,” when asked whether volume 3 would have listed “which apartment
units had asbestos.” And nowhere in the record—particularly in section 4—does
it indicate that the summary list pertained to all units. Thus, contrary to Housing
Authority’s contention, volume 1 does not provide notice of the actual location of
ACM and does not assert that ACM is in every apartment. And to read the
regulation as requiring only a summary list of building materials containing
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No. 80408-1-I/11
asbestos would undermine the regulation’s purpose to provide safe working
conditions.
In further support of its position, Housing Authority also points to the
Board’s conclusion that the program “complied with the requirements of the WAC
regulation” because, among other things, “[t]he fact that one of the volumes of
the report was lost since the report was issued does not negate the fact the
inspection was performed and the report prepared which detailed which building
products contained asbestos.” The Board’s conclusion was incorrect.
Specifically, the fact that an inspector prepared a report does not satisfy the legal
requirement that Housing Authority maintained the report and provided it to the
Department. Thus, Housing Authority’s assertion fails.
Finally, Housing Authority asserts that “the record unequivocally
establishes that [it] caused a good faith building inspection to be performed.”
First, as discussed above, due to the lack of a complete report, the Department
was unable to determine whether the survey complied with the accreditation
requirement under the statute.1 Furthermore, while Violation 2 references only
Housing Authority’s failure to perform a good faith inspection, the Department
cited WAC 296.62.07721(2)(b)(ii) as the violated and applicable regulation. And
the inspection information summary noted the importance of the information
1 To the contrary, the record suggests that Housing Authority’s inspection
did not comply with the WAC 296-62-07721. Specifically, section 4 explicitly states
that a “Phase I environmental assessment [was] conducted by Phase I, Inc.” And
Kieselbach testified that a Phase I Inc. survey would not comply with AHERA
reporting standards by an accredited inspector. Furthermore, the record provides
no basis for Kieselbach’s testimony that “apparently [Phase I Inc.] did an asbestos
survey,” which would have involved an accredited inspector.
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No. 80408-1-I/12
missing from the report, stating:
[G]iven the lack of specific knowledge of the presence, quantity and
location of asbestos on-site (all items that are determined in an
AHERA accredited Good Faith Inspection), it is likely that many
projects on site would be considered to disturb ACM or PACM. If
the annual budgeting process does not accurately account cost of
doing maintenance and repair work on ACM, then both parties are
not appropriately setting up procedures to handle ACM properly.
Additionally, the issue of whether Housing Authority maintained the report was
litigated at the IAJ hearing and throughout the appeals process. Housing
Authority also points to no legal authority—and we have found none—that
requires the citation to specifically state all issues material to the violation. See
DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)
(“Where no authorities are cited in support of a proposition, the court is not
required to search out authorities, but may assume that counsel, after diligent
search, has found none.”). Thus, Housing Authority’s assertion is unpersuasive.
WISHA asbestos regulations are vital to the health and safety of workers
throughout the state. And because Housing Authority failed to maintain the
report’s important—if not imperative—information pertaining to the asbestos
survey, the Board erred when it concluded that Housing Authority did not violate
WAC 296-62-07721(2)(b)(ii).
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Therefore, we affirm the superior court’s reversal of the Board’s order.
WE CONCUR:
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