LEE COOK TRUCK. & LOGGING v. STATE, L & I

• Decision Date: 14 December 2001
• Docket Number: No. 26162-6-II.,26162-6-II.
• Citation: 36 P.3d 558,109 Wash.App. 471
• Court: Washington Court of Appeals
• Parties: LEE COOK TRUCKING AND LOGGING, Respondent, v. STATE of Washington, DEPARTMENT OF LABOR AND INDUSTRIES, Appellant.

36 P.3d 558

109 Wash.App. 471

LEE COOK TRUCKING AND LOGGING, Respondent, v. STATE of Washington, DEPARTMENT OF LABOR AND INDUSTRIES, Appellant.

No. 26162-6-II.

Court of Appeals of Washington, Division 2.

December 14, 2001.

Bourtai Hargrove, Assistant Attorney General, Olympia, Counsel for Appellant.

Paul David Doumit, Attorney at Law, Olympia, Counsel for Respondent.

QUINN-BRINTNALL, J.

The Department of Labor and Industries Industrial Safety and Health Division (L & I) appeals the superior court reversal of a Board of Industrial Insurance Appeals (Board) ruling on one of several safety violations charged against Lee Cook Trucking & Logging. L & I claims that the trial court erred in holding that the offense was not a "serious" violation. Holding that the superior court misinterpreted the meaning of "serious" violation, we reverse the superior court, and reinstate the decision of the Board.

FACTS

L & I inspector Monte Hanks visited Lee Cook's logging site in Cougar, Washington, at least once in late 1997 and again in early 1998. Hanks cited Lee Cook for three safety requirements in logging operations. The citations focused on broken wires in the cable used to haul logs and to stabilize a tower in violation of former WAC 296-54-543 (1979).¹

The violation at issue here referenced former WAC 296-54-543(7)(b) and read as follows:

Left rear quarter—crushed section with more tha[n] two broken wires in one lay approximately 8 feet off drum; ...

Board Record at 16 (Item² 1-1, Instance 1).

There were seven subsections under § (7)(b). The citation alleged a violation of subsection (v) of § (7)(b), which read as follows:

(b) Wire rope shall be removed from service when any of the following conditions exist:

...

(v) In standing ropes, more than two broken wires in one lay in sections beyond end connections or more than one broken wire at an end connection.

Former WAC 296-54-543(7)(b)(v) (1979).

Cable is made up of strands of wire wrapped around a core wire. Logging cable is usually referred to as 6×29 or 6×19, which means six interwoven strands made up of 19 or 29 individual wires. The "lay" referenced in former WAC 296-54-543(7)(b) is a unit made up of one complete spiral or helix of a strand in the cable. A lay is determined by looking at the strand at the top of the cable, through where the strand wraps down around the core of the cable, is interwoven with the other strands, and comes back up to the top, where a new lay begins.³

THE LOGGING OPERATION AND CABLE

The particular logging method Lee Cook used at the time of the violations was "tree-length logging." This operation uses a powerful block and tackle system that allows the loggers to pull trees up to the landing site without first having to cut them into more manageable pieces. They then can be loaded onto trucks. A machine called a yarder operates the pulleys and cables, which are attached to the tower. The tower is stabilized by guy lines made of wire cable or ropes. The wires of these guy line cables are the ones at issue.

As noted above, cables used as "standing ropes" (e.g., guy lines) could not have more than two broken wires in one lay in sections beyond end connections or more than one broken wire at an end connection. Former WAC 296-54-543(7)(b)(v). L & I witness Thomas Ford explained why the regulations were more stringent for standing lines:

Any time you have a standing line it's a more critical part of the stabilization, like as a guyline. You don't get the normal wear from the line moving back and forth as you would with a running line. So any time you have a standing line that starts to show any type of deterioration—if it's visible to where you can see then there is normally some type of deterioration that's taken place within the line around the core where it is not visible.

Transcript (4-1-99, 8:10) at 27.

PROCEDURAL HISTORY

After the two inspections in question (in late 1997 and early 1998), Hanks issued several citations. Hanks classified the citation at issue here as a "serious violation" under RCW 49.17.180(6). Under the internal reassumption of jurisdiction process (see RCW 49.17.140(3)), the agency reconsidered the citations and issued a Corrective Notice of Redetermination on April 22, 1998. The Corrective Notice corrected an initial mistake in determining the company's size, and reduced the fine amount on the citation at issue by half (from $680 to $340). Various citations were affirmed, vacated, and overturned during the appeals process through the agency and the courts. Only one, Item 1-1, Instance 1, is at issue in this appeal.⁴

Lee Cook appealed the citations to the Board, and the Board judge issued a proposed decision and order on June 30, 1999. In this decision, he affirmed both the citation and the determination that it was a "serious" violation. The Board subsequently denied Lee Cook's petition for review.

Lee Cook appealed the Board's decision to Thurston County Superior Court. That court affirmed the violation of former WAC 296-54-543(7)(b) itself, but reversed its characterization as "serious" under RCW 49.17.180(6). L & I appeals this reversal, and Lee Cook counter-appeals, claiming lack of subject matter jurisdiction.

ANALYSIS

The main issue on appeal is the construction of the term "serious violation" under RCW 49.17.180. Our review is de novo. Stuckey v. Dep't of Labor & Indus., 129 Wash.2d 289, 295, 916 P.2d 399 (1996).

STATUTORY CONSTRUCTION OF RCW 49.17.180(6)

Under the Washington Industrial Safety Health Act and the Washington Administrative Code, violations assessed against employers are either classified as "willful," "serious," or not "of a serious nature." RCW 49.17.180. The sole issue L & I raises is the proper interpretation of the language describing a "serious" violation under RCW 49.17.180(6), which reads in pertinent part as follows:

For the purposes of this section, a serious violation shall be deemed to exist in a work place if there is a substantial probability that death or serious physical harm could result from a condition which exists ... in such work place ...

(Emphasis added.)

AMBIGUOUS ON ITS FACE

The parties offer two interpretations of the italicized language above. L & I asserts that the "substantial probability" language refers to the likelihood that, should any harm result from the violation, that harm will be death or serious physical harm. Lee Cook counters that the term "substantial probability" modifies the risk of harm itself and asserts that there must be proof of a substantial probability that harm will result from the violation.⁵ We agree with L & I.

We accord an agency's legal interpretation substantial weight if it falls within the agency's expertise in a special area of law. Jefferson County v. Seattle Yacht Club, 73 Wash.App. 576, 588, 870 P.2d 987 (1994). The Ninth Circuit held that the nearly identical language in the federal counterpart to RCW 49.17.180(6) is ambiguous in California Stevedore & Ballast Co. v. Occupational Safety & Health Review Comm'n, 517 F.2d 986, 988 (9th Cir.1975). We agree that the statutory language is ambiguous and requires interpretation.

INTERPRETATION OF THE FEDERAL COUNTERPART

Aside from the use of the term "work place" in the Washington statute and the term "place of employment" in the federal statute, the two definitions of "serious violation" in RCW 49.17.180(6) and its federal counterpart are identical. The federal statute reads in pertinent part as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists ... in such place of employment....

29 U.S.C. § 666(k).⁶

When a Washington statute has the same purpose as its federal counterpart, we look to federal decisions to determine the appropriate construction of the statute. Clarke v. Shoreline School Dist. No. 412, 106 Wash.2d 102, 118, 720 P.2d 793 (1986). There are no Washington cases interpreting the portion of the statute at issue here; therefore, interpretation of the federal counterpart is particularly relevant.

The Ninth Circuit reached this exact issue in California Stevedore & Ballast, 517 F.2d 986. In that case, the Occupational Safety and Health Commission argued the same interpretation L & I now asserts, namely, that the term "substantial probability" refers to the probability that any injury that occurs regardless of the likelihood that it will occur would be "death or serious physical harm." After observing that the language of 29 U.S.C. § 666(j) (identical to the language now found in subsection (k)) was "artlessly and ambiguously drafted," the court observed that OSHA's interpretation of the statute was not unreasonable and was, therefore, entitled to "a certain deference." California Stevedore & Ballast, 517 F.2d at 988 (citing Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965)⁷).

Additionally, the court reasoned that OSHA's interpretation furthered the Congressional intent in establishing workplace safety standards to require employers to eliminate all foreseeable and preventable hazards:

Where violation of a regulation renders an accident resulting in death or serious injury possible, however, even if not probable, Congress could not have intended to encourage employers to guess at the probability of an accident in deciding whether to obey the regulation. When human life or limb is at stake, any violation of a regulation is "serious." We therefore adopt the Secretary's construction of section 17(k).

California Stevedore & Ballast, 517 F.2d at 988 (emphasis added).

The offending company in the California Stevedore & Ballast case argued that, even using the above interpretation, the "serious" label did not apply to the hatch-beam violation at issue there⁸ because the agency produced no evidence that the harm would occur other than under a "freakish or...