Marpac Construction Llc, V. Department Of Labor & Industries ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MARPAC CONSTRUCTION, LLC ,
No. 82200-4-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
DEPARTMENT OF LABOR AND
INDUSTRIES OF THE STATE OF
WASHINGTON,
Respondent.
APPELWICK, J. — Marpac appeals the determination that it committed three
serious willful WISHA violations pertaining to safe crane operation near energized
power lines. Marpac’s actions show an indifference to safety that satisfies the
standard for a willful violation. We affirm.
FACTS
Marpac Construction LLC was the general contractor on an apartment
complex construction project on Oregon Street and 42nd Avenue in West Seattle.
The worksite had high voltage power lines running along Oregon Street, across an
alley, and on 42nd Avenue. Seattle City Light had flagged the power lines along
42nd Street on the east side of the project with a 10 foot offset.1 None of the other
power lines were flagged. Marpac’s superintendent, Todd Weeks, never called
Seattle City Light to check the voltage of the lines. He assumed they were between
1 The flags were placed 10 feet away from the high voltage line.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82200-4-I/2
26 kV (kilovolts) and 50 kV based on their connection to the lines flagged by Seattle
City Light. Initially, Marpac had planned to bury the power lines on the west side
of the project. But, in September 2016, the lines remained above ground.
Marpac had subcontracted with Spartan Concrete Inc. to work on the
building’s structural foundation. It started with the basement where the work was
safely performed outside the proximity of the power lines. When construction
approached street level, the owner of Spartan expressed his concerns about
working around the power lines. According to Spartan’s owner, Weeks told him
that Marpac was working on mitigation of the power line hazard and Spartan was
to continue working.
Crane operator Denny Yuckert was working with Spartan to erect concrete
columns. Yuckert used a crane to lift heavy concrete forms around vertical rebar
so Spartan workers could pour concrete into the forms. After the concrete had set,
Yuckert removed the forms and repeated the process for the next column.
On September 26, 2016, a Spartan cement truck arrived while Weeks,
Yuckert, and foreman Andrew Williams were on break. The truck could not park
to pour a column because the crane and concrete forms were in the way. Weeks
and Williams told Yuckert to move the panels and tear down the crane so the truck
could park.
Yuckert returned to the jobsite and found Spartan employees Juan Estrada
and Mario Pacheco taking their break near the crane. The men had a brief
conversation about moving the panels. Yuckert was aware of the energized power
lines nearby but he did not “really take it into consideration.” The lines were not
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flagged and there was no designated spotter for the lift. Estrada and Pacheco
chained the panels to the ball of the crane. Yuckert was in the crane and began
moving the panels. Estrada signaled to Yuckert to pick up the panel. Estrada
continued to signal Yuckert as he maneuvered the panels. Yuckert lowered the
panels as directed. Estrada and Pacheco grabbed the chains to disconnect them
from the forms. Yuckert heard “a big pop,” saw smoke, and saw Estrada being
blown backward. Yuckert realized that the crane’s line had contacted the power
lines, electrocuting Estrada and Pacheco. Both men suffered serious injuries.
The Department of Labor and Industries (DLI) responded to the scene and
conducted an inspection and investigation. Marpac received citations for six
violations. Three citations were for serious violations and three were willful serious
violations. DLI assessed a total penalty of $133,500. The willful serious violations
amounted to $126,000 of the penalties.
Marpac appealed the citation to the Board of Industrial Insurance Appeals
(Board). The Board upheld the citations, including the three willful determinations,
because “Marpac management substituted its own judgment for and exhibited
indifference to the safety requirements.” Specifically,
Marpac managers knew the power Iines bordering the construction
site were energized, high-power Iines. They knew the Iines along
the west alley were supposed to be buried. When this did not occur,
Marpac managers continued to instruct its employees to work near
and under the power Iines without instituting other safety measures.
Marpac failed to learn the voltage of the power Iines and erroneously
established a 15-foot distance limitation from the Iines. This
limitation should have been 20 feet. Marpac knew spotters were not
being used for all lifts being conducted near the power Iines. The
repetition, frequency and seriousness of Marpac’s failures to comply
with safety standards were the result of a culture of indifference
created largely by Superintendent Weeks. Mr. Weeks routinely
substituted his judgment for safety rules.
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Marpac filed a petition for review of the Board decision. Marpac challenged only
the three “willful” classifications, conceding that the six violations were “serious.”
The Board denied review and adopted the proposed decision as its final decision.
Marpac filed an appeal of the Board’s decision in King County Superior
Court. The trial court affirmed the Board’s decision and entered a judgment
against Marpac for the amount of the fines. Marpac appeals.
DISCUSSION
In a Washington Industrial Safety and Health Act of 1973 (WISHA), chapter
49.17 RCW, appeal, we review a decision by the Board based on the record before
the agency. Shimmick Constr. Co, Inc. v. Dept. of Labor & Indus., 12 Wn. App. 2d
770, 778, 460 P.3d 192 (2020). The Board’s findings of fact are conclusive if they
are supported by substantial evidence, which is evidence “in sufficient quantity to
persuade a fair-minded person of the truth of the declared premise.” Frank
Coluccio Constr. Co. v. Dept. of Labor & Indus., 181 Wn. App. 25, 35, 329 P.3d 91(2014). We then determine whether the findings of fact support the conclusions of
law. Id. We construe evidence in the light most favorable to the party that
prevailed in the administrative proceedings. Shimmick, 12 Wn. App. 2d at 778.
We interpret agency regulations as if they are statutes and review questions
of law de novo. Id. Substantial weight is given to DLI’s interpretation of WISHA.
Id. WISHA statutes and regulations are construed liberally “in order to achieve
their purpose of providing safe working conditions for every worker in Washington.”
Erection Co. v. Dep’t of Labor & Indus., 160 Wn. App. 194, 202, 248 P.3d 1085(2011). If Washington law does not provide controlling case law, we may look to
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federal decisions interpreting WISHA’s federal analogue, the Occupational Safety
and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651-78. Shimmick, 12 Wn. App. 2d
at 778.
WISHA requires employers to “furnish to each of his or her employees a
place of employment free from recognized hazards that are causing or likely to
cause serious injuries or death.” RCW 49.17.060(1). Under WISHA, a serious
violation “shall be deemed to exist in a workplace if there is a substantial probability
that death or serious physical harm could result from a condition” in the workplace
unless the employer did not and could not know of the presence of the violation
with the exercise of reasonable diligence. RCW 49.17.180(7). Violations may also
be deemed “willful.” RCW 49.17.180(1). A willful violation involves a voluntary
action, done either with an intentional disregard of or plain indifference to the
requirements of the statute. Elder Demolition, Inc. v. Dep’t of Labor & Indus., 149
Wn. App. 799, 807, 207 P.3d 453 (2009). Neither malicious motives nor specific
intent are necessary for a willful violation. Id. at 808. Rather, “a plain indifference
to safety requirements is sufficient by itself to establish a willful violation.” Id. An
act may be willful if the employer shows an “‘indifference’” to the rules, with a state
of mind such that “‘if he were informed of the rule, he would not care.’” Id. (internal
quotation marks omitted) (quoting Brock v. Morello Bros. Constr., Inc., 809 F.2d
161, 164 (1st Cir. 1987)).
DLI bears the initial burden of proving a WISHA violation. Frank Coluccio,
181 Wn. App. at 36. Marpac concedes that its violations were serious, challenging
only the willful classifications of three of the six violations.
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I. Power Line Safety
A. WAC 296-155-53408(2)(b)
Operation of a crane or derrick requires precautions to prevent
encroachment when any part of the crane, load line, or load could come within 20
feet of a power line up to 350 kV. WAC 296-155-53408(1)(a), (2)(b). The
regulation includes three options for encroachment precautions:
(i) Option (1) - Deenergize and ground. Confirm from the
utility owner/operator that the power line has been deenergized and
visibly grounded at the worksite.
(ii) Option (2) - Clearance. Ensure that no part of the
crane/derrick, load line or load (including rigging and lifting
accessories), gets closer than 20 feet of a power line that is up to
350 kV or closer than 50 feet of a power line that exceeds 350 kV by
implementing the measures specified in (b) of this subsection.
(iii) Option (3) - Table 4 clearance.
(A) Determine the line’s voltage and the minimum approach
distance permitted under Table 4 of this section.
(B) Determine if any part of the crane/derrick, load line or load
(including rigging and lifting accessories), could get closer than the
minimum approach distance of the power line permitted under Table
4 of this section. If so, then you must follow the requirements in (b)
of this subsection to ensure that no part of the crane/derrick, load
line, or load (including rigging and lifting accessories), gets closer to
the line than the minimum approach distance.
WAC 296-155-53408(1)(a) (boldface omitted). Options 2 and 3 have additional
requirements including planning meetings to review locations of the power lines
and steps to prevent encroachment and electrocution, and elevated warning lines
with high visibility markings at 20 feet from the power line or use of a designated
spotter. WAC 296-155-53408(2)(b). In order to use Option 3, Marpac was
required to determine the voltage of the power line. WAC 296-155-
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53408(1)(a)(iii)(A). The utility owner/operator must provide the voltage
information. WAC 296-155-53408(2)(c).
Marpac contends its violation of WAC 296-155-53408(2)(b) was not willful
because it “had a good faith belief that it complied with the cited regulations.”
Among its cited reasons for this good faith belief, Marpac notes that it observed a
15 foot zone under the power lines that exceeded the 10 foot minimum distance
for power lines under 50 kVs required by WAC 296-155-53408 Table 4.
But, Marpac did not contact the utility to determine the voltage of the power
lines at the site. Weeks assumed the lines were between 26 kV and 50 kV but
never confirmed his assumption with Seattle City Light. As a result, Marpac could
not use the precautions established in Option 3 that would have allowed a 10 foot
safety zone. WAC 296-155-53408(1)(a)(iii)(A), Table 4. Because the voltage was
unconfirmed, Marpac needed to observe the most protective precaution as set out
in Option 2. WAC 296-155-53408(1)(a)(ii). Failure to either determine the voltage
and minimum safe distance in Option 3 or default to the more protective Option 2
showed a “plain indifference” to the requirements that amounts to a willful violation.
See 149 Wn. App. at 807.
Additionally, Marpac knew that the construction was encroaching on the
power lines but directed work to continue. The owner of the subcontractor raised
this concern with Weeks. Weeks indicated that Marpac was working to mitigate
the hazard and to continue working in the meantime. But, people continued to
work under the energized power lines for several weeks leading up to the accident.
This included operation of the crane with a boom that could extend 52 feet under
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No. 82200-4-I/8
power lines 36.75 feet off the ground. Considering the evidence in the light most
favorable to DLI, Marpac’s weeks of work under the power lines without proper
mitigation shows the level of indifference to safety to support the willful designation.
B. WAC 296-155-53408(2)(d)(i)
Marpac was cited with a serious willful violation because it “did not prohibit
the use of extendable forklift and crane below energized power lines.” Unless an
exception applies, “[n]o part of the crane/derrick, load line or load (including rigging
and lifting accessories) is allowed below a power line unless you have confirmed
that the utility owner/operator has deenergized and (at the worksite) visibly
grounded the power line.” WAC 296-155-53408(2)(d)(i). None of the exceptions
applied to this construction site.2 In addition to the operations of the crane, Marpac
also used a forklift modified with a boom attachment under the power lines. A
2 WAC 296-155-53408(2)(d)(ii) states,
Exceptions. (d)(i) of this subsection is inapplicable where you
demonstrate that one of the following applies:
(A) The work is covered by chapter 296-45 WAC.
(B) For cranes/derricks with nonextensible booms: The
uppermost part of the crane/derrick, with the boom at true vertical,
would be more than 20 feet below the plane of a power line that is
up to 350 kV, 50 feet below the plane of a power line that exceeds
350 kV or more than the Table 4 minimum clearance distance below
the plane of the power line.
(C) For cranes with articulating or extensible booms: The
uppermost part of the crane, with the boom in the fully extended
position, at true vertical, would be more than twenty feet below the
plane of a power line that is up to 350 kV, fifty feet below the plane
of a power line that exceeds 350 kV or more than the Table 4
minimum clearance distance below the plane of the power line.
(D) Compliance with (d)(i) of this subsection is infeasible and
meets the requirements of subsection (4) of this section.
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No. 82200-4-I/9
forklift with this attachment can be used as a crane and should not be operated
under power lines.
Weeks admitted that the modified forklift worked under the power lines.
This was a violation of WAC 296-155-53408(2)(d)(i). Marpac argues that it was
unaware that adding an attachment to a forklift would subject it to crane power line
regulations but took numerous steps to ensure that the forklift did not come within
10 feet of the power lines. But, Marpac’s lack of knowledge supports rather than
refutes the willfulness designation. Georgia Elec. Co. v. Marshall, 595 F.2d 309,
320 (5th Cir. 1979) (“It is precisely because the Company made no effort
whatsoever to make anyone with supervisory authority at the job site aware of the
OSHA regulations that the Company can be said to have acted with plain
indifference and thereby acted willfully.”). Marpac’s ignorance of the important
safety rules when working equipment capable of encroaching on energized power
lines shows an indifference to safety that supports the finding of a willful violation.
II. Lift Director—WAC 296-155-53401
DLI also cited Marpac with a serious willful violation related to the lack of a
designated qualified lift director. WAC 296-155-53401(5)(c) requires the site
supervisor to ensure that a qualified person is designated as the lift director. The
lift director “[d]irectly oversees the work being performed by a crane and the
associated rigging crew.” WAC 296-155-53401(1). Marpac claims this violation
was not willful because it assigned Williams to perform the duties of the lift director.
The record contradicts Marpac’s claim. Williams adamantly denied that he
was lift director. Williams said he was the site foreman, “and [his] paycheck reflects
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No. 82200-4-I/10
that.” During the investigation, Williams told Gary Orsborn, “‘They’re going to try
to stick me on that, but I keep telling them no. I don’t understand the rules well
enough. And they promised me they’d get me more training.’” Williams said he
had “‘[n]ot really’” had any training to be lift director.
Based on this evidence, Williams was not a qualified lift director and had
informed Marpac of his lack of qualification and lack of interest in serving as lift
director. Marpac showed an indifference to the safety requirements by either
failing to appoint a lift director or appointing an unqualified lift director. Either
interpretation of the testimony supports the willfulness of the violation.
We affirm.
WE CONCUR:
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