Frank Coluccio Constr. Co. v. Wash. State Dep't of Labor & Indus.

• Decision Date: 14 May 2014
• Docket Number: No. 70334–0–I.,70334–0–I.
• Citation: 329 P.3d 91,181 Wash.App. 25
• Court: Washington Court of Appeals
• Parties: FRANK COLUCCIO CONSTRUCTION CO., Inc., Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

181 Wash.App. 25

329 P.3d 91

FRANK COLUCCIO CONSTRUCTION CO., Inc., Appellant,

v.WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

No. 70334–0–I.

Court of Appeals of Washington, Division 1.

March 24, 2014.

Publication Ordered May 14, 2014.

Aaron Kazuo Owada, AMS Law PC, Lacey, WA, Jennifer Liu Truong, AMS Law PC, Seattle, WA, for Appellant.

Paul Michael Weideman, Attorney at Law, Seattle, WA, for Respondent.

LAU, J.

¶ 1 Frank Coluccio Construction Co. operated an excavator within 10 feet of an energized power line in violation of WAC 296–155–428(20)(a)'s 10–foot clearance requirement. The Board of Industrial Insurance Appeals (Board) affirmed the Department of Labor & Industries' “Citation and Notice of Assessment” against Coluccio for a serious violation of the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW. The superior court affirmed the citation and assessment of penalties. Because substantial evidence supports the Board's findings of fact and its findings support its conclusion that Coluccio failed to prove its affirmative “infeasibility” defense, we affirm the Board's decision.

FACTS

¶ 2 Sound Transit hired Frank Coluccio Construction Company (Coluccio) to replace a damaged sewer main beneath Broadway Street between Denny Street and East Howell Street in Seattle's Capitol Hill neighborhood. At that location, Broadway has one northbound and one southbound lane—each 13 1/2 feet wide—and an 11–foot wide center turn lane.

¶ 3 Metro buses powered by 18–foot high electric trolley lines run above Broadway. The high voltage trolley lines are 600–800 volts and located approximately 12 to 15 feet from the center of the road. Exposure to as little as 50 volts and 5 milliamps can cause death.

¶ 4 The sewer work required Coluccio to dig a trench approximately 250 feet long, 13 feet deep, and 5 feet wide down Broadway's center turn lane. Coluccio determined it needed a medium-size excavator with a boom (arm) length of about 20 feet for the project. According to Coluccio, a smaller excavator would be unable to dig to the necessary depth or to pull a trench box ¹ around the work site.

¶ 5 Before starting the project, Coluccio's corporate safety director, Robert Clouatre, visited the work site to identify potential safety hazards. Clouatre saw the Metro trolley lines above Broadway. He knew the excavation project required Coluccio's employees to work within 10 feet of the trolley lines. He also knew about WAC 296–155–428(20)(a)'s requirement that employees must maintain a 10–foot clearance from energized overhead lines when operating vehicles or mechanical equipment. That provision specifically requires:

Any vehicle or mechanical equipment capable of having parts of its structure elevated near energized overhead lines shall be operated so that a clearance of 10 ft. is maintained. If the voltage is higher than 50kV, the clearance shall be increased 0.4 inch for every 1kV over the voltage. However, under any of the following conditions, the clearance may be reduced:

(i) If the vehicle is in transit with its structure lowered, the clearance may be reduced to 4 ft. If the voltage is higher than 50kV, the clearance shall be increased 0.4 inch for every 1kV over that voltage.

(ii) If insulating barriers are installed to prevent contact with the lines, and if the barriers are rated for the voltage of the line being guarded and are not a part of or an attachment to the vehicle or its raised structure, the clearance may be reduced to a distance within the designed working dimensions of the insulating barrier.

WAC 296–155–428(20)(a). Clouatre did not realize at the time that Metro's trolley lines were high voltage. He was not “used to high voltage lines being that low.” Hearing Transcript (Feb. 1, 2012)(HT) at 142.

¶ 6 Project foreman Randy Brown also observed the trolley lines before work began. He knew Coluccio's employees would be unable to comply with WAC 296–155–428(20)(a)'s 10–foot clearance requirement due to the sewer's location in the street. Brown knew the trolley lines were energized and that portions of the excavator would be within 10 feet of the trolley lines at times.

¶ 7 Despite Clouatre and Brown's knowledge that Coluccio would be unable to achieve WAC 296–155–428(20)(a)'s 10–foot clearance requirement, Coluccio did not apply to the Department of Labor and Industries (Department) for a variance from that regulation before starting work.² Clouatre had obtained variances from the Department in the past. On an earlier project, he obtained a variance when he knew Coluccio's employees would be working near electrical lines.

¶ 8 Rather than obtain a variance, Clouatre worked with Brown “to insure that we did not touch those lines.” HT at 134. According to Clouatre, the two men discussed how Brown “was going to position all of his vehicles and his equipment and keep an eye and remind people on a regular basis how any time the excavator arm was articulating he'd be standing there spotting to make sure nobody got close to that.” HT at 132. Brown explained that Coluccio backed the trucks “right next to the ditch” in order to load them in such a way that they never had the excavator's bucket under the overhead trolley lines. HT at 103. He explained that the excavator was placed to allow the operator to “always ha[ve] a visual with the wires.” HT at 104. Brown stated that “most of the time” his job was to act as a spotter ³ for the excavator operator, Dan Mitchell. HT at 93.

¶ 9 No one told Mitchell before starting the work that he had to stay 10 feet away from the trolley lines. Mitchell knew the lines were energized. He never worked directly under the lines. The excavator's cab could rotate 360 degrees. Occasionally Mitchell had to turn the excavator so that the boom and bucket would leave the center line. This would bring the boom and bucket to the side of the excavator. Mitchell stated that when he connected the excavator's bucket to the trench box in the trench, the boom was approximately 8 to 10 feet away from the trolley lines. While spotting for Mitchell, Brown observed the bucket or boom come within 3 to 4 feet of the trolley lines.

¶ 10 On February 11, 2011, Department compliance safety health officer Randy Paddock was driving northbound on Broadway. He observed Coluccio's excavator dragging a trench box at street level from one end of the work zone to the other. The trench box was chained to the excavator's bucket. The excavator was traveling forward with its boom extended out in front of the trench box, which was being pulled.

¶ 11 While in his car, Paddock saw the boom's pivot point within 10 feet of the Metro trolley lines. Paddock also saw buses attached to the lines, confirming they were energized. Paddock was concerned that the chain attaching the excavator boom to the trench box could break, causing the boom to swing upward and contact the trolley lines. If the excavator had touched the energized lines, the operator's death was nearly certain. People standing close to the excavator would also be at risk of death or serious injury. Paddock parked his car and walked to the work site to perform a safety investigation. Clouatre and project manager Mike McGinley told Paddock they did not have a variance.

¶ 12 Safety devices exist to prevent a boom from moving upward or to restrict its movement. A nylon sling can act as a limit on booms. A limit switch can also be installed to limit the excavator's operation to preestablished parameters, allowing for control of the boom's height and swing. Coluccio's excavator had no nylon sling or a limit switch. The strobe light on the outside shroud of the excavator cab was not operating. Paddock saw no painted line on the ground as visual reminder of the necessary clearance from the overhead lines. Paddock observed no spotter. He talked to foreman Brown about the use of a spotter, but no one identified a spotter on the work site. Brown acknowledged he was not spotting when the excavator was dragging the trench box. Brown claimed that a spotter was not needed at that time “[b]ecause the box was right next to our ditch was more than 10 feet away as far as I knew at the time.” HT at 104.

¶ 13 Paddock warned Coluccio's employees against operating equipment within 10 feet of the energized overhead trolley lines. He gave them the telephone number of Department employee Steve Heist, who handled variances.

¶ 14 After the inspection, Paddock spoke with Department high voltage compliance supervisor Rick Evans. Evans testified that “qualified electrical workers” and employees working under a variance can work within 10 feet of high voltage lines. Evans explained that Coluccio employees received previous hazard awareness training and obtained a variance on a prior job involving work within 10 feet of energized lines. This, however, did not allow them to work within 10 feet of the energized trolley lines at the Broadway project.

¶ 15 After Paddock's inspection, Coluccio stopped excavation work and applied for a variance. Clouatre consulted with Heist regarding measures to protect Coluccio's workers. In its variance application, Coluccio proposed the following alternative protection measures:

1. This crew has been trained in a 4 hour electrical hazards recognition and procedures course by Seattle City Light. They performed excavation work in the Massachusetts St substation without any incident and worked near very high voltages. We will conduct a refresher of this course with site specific procedures discussed.

2. Daily prejob meetings will be held.

3. A foreman (not the one directing this work), that has already been thru the training mentioned in 1. above, will be assigned as safety watch. He will have no other duties. He is a competent person and will have full authority to stop the work and correct procedures.

4. The excavator used will have a limiter switch attached to it. An adjustable rod will be attached to the boom...