Opinion
No. 52027-0-I.
Filed: March 29, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-03925-1. Judgment or order under review. Date filed: 02/19/2003. Judge signing: Hon. Roderick Sinclair Simmons.
Counsel for Appellant(s), Guy Jeffrey Sternal, Attorney at Law, 1201 Pacific Ave Ste 1200, Tacoma, WA 98402-4395.
Jennifer Ann Wing, Eisenhower Carlson PLLC, 1201 Pacific Ave Ste 1200, Tacoma, WA 98402-4395.
Counsel for Respondent(s), Brian Lamar Dew, Attorney at Law, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.
Fields Corporation appeals a superior court order affirming the decision of the Board of Industrial Insurance Appeals to uphold three citations and impose penalties for violations of the Washington Industrial Safety and Health Act. Fields contends that the BIIA abused its discretion by admitting opinion testimony at the hearing, that the findings supporting the citations were not supported by substantial evidence, that the conclusions of law are not supported by the findings, and that the BIIA abused its discretion in imposing penalties for the citations for violating WISHA.
We conclude that the BIIA did not abuse its discretion either in admitting the opinion testimony of a Department of Labor and Industries employee or in imposing penalties resulting from the citations. We also conclude that the challenged findings are supported by substantial evidence and support the conclusions of law underlying the citations.
Fields manufactures roofing products containing asbestos at plants in Tacoma and Kent, Washington. Fields' employees at the Kent plant routinely handle chrysotile asbestos used in making coatings and mastic (asphalt) products. The manufacturing process requires workers to open bags of asbestos and pour it into mixing machinery. Employees retrieve spilled asbestos for disposal by sweeping it up while it is dry and placing it into a disposal receptacle. The spilled asbestos is not recycled into the manufacturing process.
In March and April 2000, the DLI inspected Fields' Kent plant and measured asbestos exposure of a worker engaged in the manufacturing process. The inspectors measured an employee's exposure to airborne asbestos and found an exposure level of 0.281 fibers/cm3, nearly three times the limit allowed by law. This number is measured as an eight-hour time-weighted average. Among other violations, the inspectors found that employees violated regulations by `dry sweeping' asbestos, and by walking on top of a tanker truck without a guardrail.
The inspection covered the equipment, facilities, safety practices, a walkthrough of the plant, interviews, and records review. The inspectors cited Fields for numerous violations of WISHA regulations. Fields challenges citations 1-2 (violating permissible asbestos exposure level), 1-4 (dry sweeping of asbestos), 1-8 (violating WISHA fall protection standards), a portion of the DLI's testimony, and the penalties resulting from the citations.
Fields appealed the citations to the BIIA. After a hearing, the BIIA issued a decision supported by findings of fact and conclusions of law. The BIIA affirmed the citations and relevant penalty assessments. The superior court affirmed the BIIA's decision, and Fields appeals.
EVIDENTIARY RULING
Fields contends that the BIIA abused its discretion when it overruled Fields' evidentiary objection to exclude testimony from DLI inspector, Nancy Lee. Fields argues that Lee's testimony regarding Fields' ventilation system should have been stricken in its entirety because Lee did not base her testimony on personal knowledge, but rather based it solely upon conjecture and speculation. We conclude that the BIIA did not abuse its discretion in admitting Lee's testimony.
Evidentiary rulings are reviewed under an abuse of discretion standard. `Abuse of discretion occurs where the trial court's decision is arbitrary or rests on untenable grounds or untenable reasons.' Where expert opinions are involved, It is the trier of fact's ultimate responsibility to determine what weight, if any, it will give to the opinion testimony. Fields argues Lee based her testimony on mere speculation and lack of personal knowledge. Fields further argues that under either ER 602 (lay opinion), or ER 702 (expert opinion), Lee's testimony was inadmissible. The exchange in dispute dealt with Fields' ventilation system:
Sunbreaker Condo. Ass'n v. Travelers Ins. Co., 79 Wn. App. 368, 372, 901 P.2d 1079 (1995), review denied, 129 Wn.2d 1020 (1996).
Danzer v. Dep't of Labor Indus., 104 Wn. App. 307, 326, 16 P.3d 35 (2000), review denied, 143 Wn.2d 1020 (2001) (citations omitted).
State v. Ellis, 136 Wn.2d 498, 523, 963 P.2d 843 (1998).
RULE 602. LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.
RULE 702. TESTIMONY BY EXPERTS
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
[Counsel]: Was there anything insufficient about that dust collector?
[Lee]: I didn't do a thorough review to determine whether or not it was sufficient or insufficient. Basically what I did was determine that [the] employees were exposed above the permissible exposure limit. It's up to the employer to come up with engineering controls and work practices to reduce the permissible limit.
[Counsel]: What are you basing your testimony on when you say there could have [been] engineering control or work practice enhancement concerning the ventilation system?
[Lee]: My experience, I guess, in terms of industrial hygiene and just the basic fundamental process of ventilation and increasing flow rate and maintaining a good ventilation system.
[Counsel]: Your Honor, I would ask that her testimony be stricken in its entirety concerning that speculation because it's not based on any knowledge of Fields. It's based on her understanding in general of ventilation systems.
However beyond her experience, Lee did have personal knowledge of the ventilation system. She monitored the operations at Fields and `was basically on site all day, observing practices and procedures at the facility, performed employee interviews, did a walk-through of the facility.' She `reviewed Puget Sound Clean Air's documents on the ventilation system that was installed [at Fields].'
Lee further testified that she reviewed documentation for the ventilation system including installation, maintenance, operations manuals, and information about the `10-K' dust collectors. The inspector discussed the ventilation system with Fields' technical director. Lee described the system to the BIIA and informed the BIIA that the system's `asbestos filters have not been changed out since 1992.' Fields Technical Director, Larry Nordi, told Lee that the filters were last cleaned in 1993. Lee did have personal knowledge about the ventilation system in use at Fields, and observed and recorded its effect on the levels of asbestos in the air at the site. Given Lee's knowledge, the BIIA correctly applied ER 602 in overruling Fields' objection to her testimony.
Additionally, Lee qualifies as an expert witness. Her credentials include a Bachelor of Science in Environmental Health and certification as an industrial hygienist. She has 13 years of public and private employment experience working with asbestos issues. Furthermore, the inspector reviewed Fields' WISHA violation history and information from previous WISHA inspections of Fields. The record shows that Lee based her opinion testimony on expertise, experience, and personal knowledge of the ventilation system in use at Fields. We thus conclude the BIIA also correctly applied ER 702 in overruling Fields' objection to Lee's opinion testimony.
We conclude there was no abuse of discretion by the BIIA in admitting Lee's testimony. In light of her experience, expertise and personal knowledge of the ventilation system, the BIIA did not base its decision to overrule Fields' objection on arbitrary or untenable grounds.
Fields also argues that Lee lacked factual support for the citations because she mistakenly reviewed the ventilation system records of an unrelated company. We reject this argument because it is not supported by the record.
Lee testified that she reviewed documents regarding Fields' ventilation system. In one answer to a question from Fields' counsel, she mistakenly referred to Fields as `Fields Roofing,' but she immediately corrected herself. Lee said, `I'm sorry. Did I get the name wrong? Fields Services Corporation.' Furthermore, she testified that she confirmed the information from the ventilation systems records on-site with Fields' technical director Larry Nordi.
In sum, a fair reading of the record supports our conclusion that the BIIA did not abuse its discretion in admitting Lee's testimony.
SUBSTANTIAL EVIDENCE
Fields contends in its briefing that substantial evidence did not support Citation 1-2 for Fields' failure to comply with WAC 296-62-07713(1)(a). We disagree.
WAC 296-62-07713(1)(a).
Methods of compliance for asbestos activities in general industry.
(1) Engineering controls and work practices.
(a) The employer must institute engineering controls and work practices to reduce and maintain employee exposure to or below the permissible exposure limits prescribed in WAC 296-62-07705 except to the extent that such controls are not feasible. Engineering controls and work practices include but are not limited to the following:
(i) Local exhaust ventilation equipped with HEPA filter dust collection systems;
(ii) Vacuum cleaners equipped with HEPA filters;
(iii) Enclosure or isolation of processes producing asbestos dust;
(iv) Use of wet methods, wetting agents, or removal encapsulants to control employee exposures during asbestos handling, mixing, removal, cutting, application, and cleanup;
(v) Prompt disposal of wastes contaminated with asbestos in leak-tight containers; or
(vi) Use of work practices or other engineering controls that the director can show to be feasible.
The regulation requires that employers institute engineering controls and work practices to reduce and maintain employee asbestos exposure to or below the permissible limits (PEL) of `0.1 fiber per cubic centimeter,' except to the extent such controls are not feasible. The purpose of asbestos and other WISHA regulations is to `assure, insofar as may reasonably be possible, safe and healthful working conditions for every man and woman working in the state of Washington.' `WISHA is to be liberally construed to carry out this purpose.' The Legislature declared, `The nature of this problem [airborne-asbestos] is such as to constitute a hazard to the public health and safety, and should be brought under appropriate regulation.'
See WAC 296-62-07705.
Inland Foundry Co., Inc. v. Dep't of Labor Indus., 106 Wn. App. 333, 336, 24 P.3d 424 (2001).
Review of factual support for BIIA decisions involving WISHA citations is expressly governed by RCW 49.17.150(1), which states in relevant part, `The findings of the board if supported by substantial evidence on the record considered as a whole, shall be conclusive.' Substantial evidence is evidence sufficient to persuade a rational person of the truth of the declared premise. Furthermore, where expert opinions are involved, `It is the trier of fact's ultimate responsibility to determine what weight, if any, it will give to the opinion testimony.'
Danzer, 104 Wn. App. at 319.
Ellis, 136 Wn.2d at 521.
OSHA decisions should be persuasive in interpreting WISHA regulations because the federal government requires WISHA standards to be `at least as effective' as OSHA. In a federal Occupational and Safety Health Administration (OSHA) decision that reviewed asbestos removal by a contractor and a regulatory exception to an asbestos wetting requirement, the OSHA Review Commission stated, `As an exception, it is to be read narrowly and the burden is on the employer to show entitlement.'
Secretary of Labor v. Reliance Environmental Management, Inc., 1998 O.S.H.D. (CCH) P 31612, 18 O.S.H. Cas. (BNA) 1507, 1998 WL 438486 (O.S.H.R.C.) (July 27, 1998) at 17.
Fields argues that instituting the controls or practices available to reduce asbestos exposure levels within the PELs was not feasible, and that because no feasible controls and practices are available, they had to set up a regulated work area. Fields further argues that the area should be afforded an exception that allows for exposure up to 0.5 fibers/cm3 under WAC 296-62-07711 and WAC 296-62-07713(1)(c).
WAC 296-62-07713(1)(c)
For the following operations, wherever feasible engineering controls and work practices that can be instituted are not sufficient to reduce the employee exposure to or below the permissible exposure limits prescribed in WAC 296-62-07705, the employer must use them to reduce employee exposure to or below 0.5 fiber per cubic centimeter of air (as an eight-hour time-weighted average) or 2.5 fibers per cubic centimeter of air for 30 minutes (short-term exposure), and must supplement them by the use of any combination of respiratory protection that complies with the requirements of WAC 296-62-07715, work practices and feasible engineering controls that will reduce employee exposure to or below the permissible exposure limits prescribed in WAC 296-62-07705: Coupling cutoff in primary asbestos cement pipe manufacturing; sanding in primary and secondary asbestos cement sheet manufacturing; grinding in primary and secondary friction product manufacturing; carding and spinning in dry textile processes; and grinding and sanding in primary plastics manufacturing.
The DLI points out that the exception in WAC 296-62-07713(1)(c) allows airborne asbestos to exceed the PEL only after a company institutes all feasible controls and work practices. Feasible means, `capable of being done, executed or effected.' Furthermore, WAC 296-62-07713(1)(a) states that `[t]he employer must institute engineering controls and work practices to reduce and maintain employee exposure.'
Webster's Third New International Dictionary 831 (1993).
(Emphasis added.)
The BIIA concluded that Fields violated WAC 296-62-07713(1)(a). This conclusion followed directly from finding of fact 2: `Fields Company, LLC, failed to implement feasible and necessary engineering controls and work practices in the asbestos room in order to reduce and maintain employee exposure to or below the permissible exposure limits for airborne asbestos.'
The DLI admits that exposure levels up to 0.5 fibers/cm3 are permissible, but after feasible engineering controls have been instituted. But, there is substantial evidence that Fields failed to implement a number of feasible engineering controls and work practices that could reduce asbestos exposure.
In addition to exceeding the PEL, Fields also fails to carry its burden of showing entitlement to the exception to the 0.1 fiber/cm3 PEL. Although Fields claims that they complied with the PEL for a regulated area, Fields did not implement sufficient controls in the area. Fields fails to show that the controls and practices of using vacuum cleaners equipped with HEPA filters, use of wet methods during clean up, and maximization of local exhaust ventilation as required by WAC 296-62-07713(1)(a) were not feasible.
WAC 296-62-07711(1)
General. The employer shall establish a regulated area in work areas where airborne concentrations of asbestos exceed or can reasonably be expected to exceed the permissible exposure limits prescribed in WAC 296-62-07705.
Use of a vacuum with a HEPA filter is specifically listed as an engineering control or practice in WAC 296-62-07713(1)(a)(ii). Karen Anderson, a DLI expert, testified that implementing a HEPA vacuum was feasible because `they're affordable easy to operate.' Fields concedes that it was not using a vacuum with a HEPA filter. Fields also failed to present evidence that would suggest that installing a HEPA vacuum would not be feasible. In fact, Fields' own expert testified that there was no vacuum there the day of the survey. He further testified that a vacuum `adds to the overall arsenal of engineering controls that you can use to keep [exposure] as low as possible.' Fields installed a HEPA vacuum after the DLI's inspection, thus suggesting the feasibility of such an engineering control. The failure to use a HEPA vacuum is supported by substantial evidence and there is also substantial evidence that use of the vacuum was feasible. Fields also failed to demonstrate that it was not feasible to use wet methods for all asbestos cleanup as required by WAC 296-62-07713(1)(a)(iv). Fields contends that wetting the asbestos for clean up is not feasible because the asbestos cannot be used wet. But, the asbestos that is spilled in Fields' mixing area is not recycled for use in the manufacturing process. Fields' employees clean up spilled asbestos by dry sweeping and placing the sweepings into a waste container. The waste is bagged, sprayed with water, and discarded.
Fields' employees wet down asbestos disposal bags before the bags are discarded. But Fields fails to explain why it is not feasible to wet down the spilled asbestos waste before it is bagged and collected for disposal. Fields expert argues that reuse of the dry asbestos is preferable to dumping wet clumps of asbestos into landfills. But, the spilled, dry asbestos is not recycled into Fields' products. The DLI expert, Anderson, testified that `(wet) wiping is feasible, that's affordable, and easy to do.'
We conclude that wet sweeping and wiping of `waste' asbestos is a feasible measure that Fields failed to implement, thus violating the regulation. The DLI also cited Fields for failing to use `local exhaust ventilation equipped with a HEPA filter dust collection systems.' Fields uses a bag-house type local exhaust ventilation system. But, the bag-house filters had not been changed or cleaned since 1992. Fields' expert opined that the ventilation system was sufficient. The DLI contends the age of the filter is evidence of an ineffective local exhaust ventilation system, and demonstrates a lack of maintenance. Cleaning the filter and sealing openings in the system are feasible engineering controls that could lower asbestos exposure.
One of Fields' experts admitted the possibility that asbestos exposure could be lowered. He opined that the system at Fields was good but, `there might be some little thing we could tweak or add or adapt or improve on. I'm not saying we can't improve.'
Finally, Fields argues that the work area in which the .281 fibers/cm3 reading was taken in a `regulated area' that is allowed to exceed PEL and exempt from the engineering controls and practices, because its employees use respirators and protective suits. Fields is correct that `regulated areas' may exceed PELs, but the regulations should be read to allow for higher PELs only after the employer implements feasible engineering controls and work practices. Here, Fields failed to implement feasible controls such as a HEPA vacuum, wet clean-up and an effective local exhaust ventilation system. Thus, the regulations allow for no citation to be issued if after the employer implements feasible controls the regulated area exceeds PELs. Notwithstanding Fields' use of extra protective gear, Fields failed to implement at least three feasible practices to reduce exposure, thus, we conclude that there was substantial evidence supporting the factual finding and conclusion that led to the issuance of Citation Item 1-2.
Fields next argues substantial evidence does not support citation 1-4, a violation of WAC 296-62-07723(5) regarding the dry sweeping of asbestos because the practice is not feasible. The regulation provides; Housekeeping (5) Shoveling, dry sweeping, and dry cleaning of asbestos may be used only where vacuuming and/or wet cleaning are not feasible. Substantial evidence supports the findings that support the conclusion that Fields violated the WAC and merited the citation.
Fields argues that vacuuming and wet cleaning are not feasible in the mixing area cited. It argues that dry asbestos that did not make it into the mixer could only be swept up because wet asbestos cannot be used in their products. A Fields' employee admitted that he dry swept asbestos in the mixing room. While it may be true that wet asbestos cannot be used in Fields' manufacturing process, the asbestos spilled in the mixing room is not reused by Fields. We also look to the previous analysis of citation 1-2 in concluding there is substantial evidence showing wet sweeping or vacuuming of spilled, waste asbestos is feasible.
Next, Fields argues that no substantial evidence supported citation 1-8, relying on the defense of unpreventable employee misconduct. The citation issued is for an employee standing on a tanker truck without a guardrail, a violation of WAC 296-24-75001(1). Fields does not dispute that its employee violated the regulation.
WAC 296-24-75007
Protection of open-sided runways.
(1) Railings must be provided with a toeboard wherever, beneath the open sides:
(a) Person can pass;
(b) There is moving machinery; or
(c) There is equipment with which falling materials could create a hazard.
(2) Every runway shall be guarded by a standard railing (or the equivalent as specified in WAC 296-24-75011(3) on all open sides 4 feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.
Runways used exclusively for special purposes (such as oiling, shafting, or filling tank cars) may have the railing on one side omitted where operating conditions necessitate such omission, providing the falling hazard is minimized by using a runway of not less than 18 inches wide. Where persons entering upon runways become thereby exposed to machinery, electrical equipment, or other danger not a falling hazard, additional guarding than is here specified may be essential for protection.
(3) Regardless of height, runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with a standard railing and toeboard.
Unpreventable employee misconduct is codified in RCW 49.17.120(5) and provides in relevant part:
(5)(a) No citation may be issued under this section if there is unpreventable employee misconduct that led to the violation, but the employer must show the existence of:
(i) A thorough safety program, including work rules, training, and equipment designed to prevent the violation;
(ii) Adequate communication of these rules to employees;
(iii) Steps to discover and correct violations of its safety rules; and
(iv) Effective enforcement of its safety program as written in practice and not just in theory.
(b) This subsection (5) does not eliminate or modify any other defenses that may exist to a citation. (Emphasis added).
The BIIA made a finding that `Fields Company, LLC, did not take adequate steps to discover and correct violations of its safety rules.' Finding 15 states, `Fields does not have effective enforcement of its safety program as written in practice and not just in theory.'
Substantial evidence supports these findings. Although Fields' owner, John Fields, uses written rules and regulations, a system of discipline, warnings, and safety trainings, there is evidence the company does not take steps to discover and correct violations of its safety rules and that safety programs are not enforced in practice. Employee James Martin, who was cited for standing on top of a tanker truck without sufficient railings, testified that he received safety training and knew of the company safety rules. Martin also admitted he violated the rule more than once.
Even though Martin violated the guardrail rule more than once, he only received `verbal warnings from the supervisor.' Furthermore, John Fields admitted that even though some employees have been fired for safety violations, violations typically are not written up until a supervisor is `just exasperated.' He also admitted he was not aware of whether this was the employee's first violation or what level of discipline, if any, was instituted for the violation.
John Fields' lack of knowledge regarding his employee's violations is further evidence that Fields Corporation does not take steps to discover and correct violations of its safety rules. There are 5 employees in the Kent Facility according to the Inspection Report. That Fields did not discipline Martin for violating company safety rules and state law also provides substantial evidence that support the conclusion that Fields did not have `effective enforcement of its safety program as written in practice and not just in theory.'
CALCULATION OF PENALTIES
Fields argues based on the past three years that it should have been given a `good' instead of an `average' for history. Fields argues that the BIIA abused its discretion when it upheld the DLI's calculation of penalties. We conclude there was no abuse of discretion in imposing the penalties in this case.
WISHA penalty amounts are reviewed under an abuse of discretion standard. The DLI's penalty calculation process is codified at WAC sec. sec. 596-800-35022 through 35040. First, the DLI establishes a `base penalty' by assessing the severity of possible injury and the probability of that offense. The severity is multiplied by the probability to form a `gravity' factor. This factor forms the base penalty. The base penalty is modified up or down for several factors including history. Under sec. 35032, the DLI considers `an employer's history of safety and health violations using previous citations as well as injury and illness rates.' There is no limit on the period of an employer's history that is considered. The DLI argues a three-year period is used to determine whether to characterize a violation as a repeat under sec. 35040.
Danzer, 104 Wn. App. at 326.
Prior inspections yielded safety and health violations in 1994. Inspector Lee gave Fields an `average' history because `there have been issues in terms of violations and issues like that.' She also considered an experience factor that `has to do with injuries and claims and things like that in terms of exposure to hazards.' Both Lee and Anderson reviewed Fields' history of inspections. Lee also considered citations issued to Fields in 1992. DLI inspectors concluded that Fields' history was average. That decision was well within permissible limits.
We conclude that the BIIA did not abuse its discretion in concluding Fields' history was `average,' and imposing the penalty that it did.
ATTORNEY FEES
Fields argues it is entitled to an award of reasonable attorney fees and costs on appeal for judicial review of an agency action under RCW 4.84.350. We disagree.
Fields is not entitled to attorney fees under RCW 4.84.350. RCW 34.05 is the Washington Administrative Procedure Act and RCW 34.05.570 outlines judicial review under the Act. But RCW 34.05.030(2)(a) and (2)(c) exclude WISHA proceedings from judicial review under the provisions of the WAPA. RCW 4.84.350 does not authorize attorney fees at any stage of an administrative or judicial review of a WISHA citation. Accordingly, attorney fees are not awardable to Fields under the provision it cites.
WISHA proceedings are excluded from RCW 34.05.410 through RCW 34.05.598 (the WAPA's judicial review provisions).
We affirm the decision of the BIIA to uphold the three citations appealed by Fields and to impose penalties for those violations of the WISHA.
COLEMAN and BECKER, JJ. concur.