Nw. Abatement Servs. Inc. v. Wash. State Dep't of Labor & Indus.
| Decision Date | 02 March 2021 |
| Docket Number | No. 53439-8-II,53439-8-II |
| Court | Washington Court of Appeals |
| Parties | NORTHWEST ABATEMENT SERVICES INC., Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES, Respondent. |
MAXA, P.J. - The Department of Labor and Industries (DLI) issued citations against Northwest Abatement Services Inc. for violations of regulations under the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW, and asbestos-related regulations. The violations involved a project in which Northwest Abatement was removing a roof that contained asbestos. The Board of Industrial Insurance Appeals (Board) issued a decision and order upholding the violations, and the superior court affirmed. Northwest Abatement appeals, arguing that the Board's decision is not supported by substantial evidence.
Northwest Abatement was removing a roof on a four-story commercial building. After a DLI employee happened to observe a Northwest Abatement employee walking on the roof of the project without fall protection gear, DLI sent two inspectors to investigate the worksite. DLI issued a number of citations against Northwest Abatement for violating fall protection, flagging, and asbestos-related regulations.
Northwest Abatement argues that substantial evidence does not support the Board's determinations that (1) Northwest Abatement employees were exposed to fall protection, flagging, and asbestos-related violations; (2) Northwest Abatement had actual or constructive knowledge of the alleged violations; and (3) Northwest Abatement did not meet its burden of proving the affirmative defense of unpreventable employee misconduct.
We conclude that substantial evidence supports the Board's determinations. Accordingly, we affirm the superior court's order affirming the Board's decision and order.
Northwest Abatement is an asbestos removal company that was hired to remove an asphalt roof containing asbestos on a commercial building in downtown Tacoma. The building was approximately four stories tall. The building was located on a corner with an active bus stop.
Chris Eckholm was the project manager assigned to the roof removal project. The project manager's job duties included conducting safety inspections and developing the scope of work for the project. Forrest Hamilton was Northwest Abatement's certified asbestos supervisor and was the supervisor and foreman for the roof removal project. Hamilton was responsible for reviewing the job scope with the workers, ensuring all workers had their respirator cards and were suited up, and generally making sure that everything on the job was in good shape.
Paul Peters was the safety manager for Northwest Abatement. He conducted random job site inspections and provided additional safety training for employees. He conducted randomsafety inspections using a safety checklist form approximately once to twice a month. In addition, Northwest Abatement had sporadic supervisor meetings and general crew meetings whenever an issue arose.
Northwest Abatement had a three-stage disciplinary system that applied to employees who violated safety regulations: first a verbal warning, then a written warning, and then termination. Northwest Abatement retained the ability to impose a harsher penalty if warranted by the circumstances. Written warnings were supposed to be maintained in Northwest Abatement's daily logbook. However, Hamilton, Eckholm, and Peters had never written another employee up for a safety violation. Many of the employees had never heard of another employee being disciplined.
Before Northwest Abatement started to remove the roof, the building owner conducted a good faith inspection to determine the extent of asbestos involved. A core sample taken from the roof revealed that five layers out of 13 layers of the roof contained a type of asbestos called chrysotile. Chrysotile is extremely small and is not visible to the human eye. The chrysotile was bound to the asphalt material. The asbestos-containing layers alternated with layers that did not contain asbestos. The bottom layer, number 13, consisted of brown fibrous material that contained no asbestos.
Northwest Abatement workers were required to wear personal protective equipment and to saturate asbestos-containing material they removed with water (the wet method) to protect against the hazards of airborne asbestos fibers. Fields Roofing, another contractor, installed a debris chute feeding into a dumpster to dispose of the removed roofing material. There wasplastic material between the end of the chute and the dumpster to prevent any debris or dust from escaping.
Northwest Abatement started removing the roofing material on the east edge of the roof. The roof was removed in large chunks. Northwest Abatement used roof saws, hatchets, roofing shovels, wheelbarrows, brooms, and bags to remove and transport the roofing materials. The workers cut through multiple layers at once. The small pieces of black asphaltic materials were bagged, but not the larger sections. The discarded roofing materials were transported in wheelbarrows or bags to the debris chute.
Once the dumpster was full of debris, a Northwest Abatement truck would take it away. This process would occur multiple times each day. The dumpster removal process involved a truck backing up to the container, lifting it onto the truck, and driving away. A worker was needed to help the truck back up because the truck drivers could not see behind them. There was an active bus stop on the same corner where the dumpster was located.
Workers wore Tyvek suits1 and respirators during the entire course of the project as required by regulations. For safety reasons, workers would use their respirators even if they were working on the brown layer to minimize the risks of breathing in any fibers. The purpose of fitted respirators was to ensure that the worker had an appropriate fit to protect against chemicals or other hazards. Hamilton did not check the workers' fit testing documentation to ensure they had the correct fit testing.
Workers were expected to take off their Tyvek suits and respirator masks inside the regulated area and place them in an asbestos bag. Although there was a HEPA vacuum2 in a company truck to remove material from the suits, there was no HEPA vacuum in the regulated area. Workers sometimes took off their Tyvek suits outside of the regulated area and without using the HEPA vacuum first. And Hamilton did not establish a decontamination area outside the regulated area.
Northwest Abatement had removed about a quarter of the roof when DLI became involved in the project. Andrew Baga was a management analyst who worked at DLI, but was not in the Department of Occupational Safety and Health (DOSH). His office was on the fifth floor of a building near the project site. On the second day of the project, July 26, 2016, Baga happened to look out his office window and noticed workers on a roof who were not wearing fall protection harnesses. Baga visited the worksite and did not see any of the workers wearing fall protection equipment. He left the site and returned with Maili Jonkman, a DLI safety compliance officer.
While on the ground level outside of the building, Jonkman and Baga watched a Northwest Abatement employee, Richard Crakes, dumping debris into the unguarded debris chute without fall protection. Jonkman took a photograph showing Crakes's proximity to the chute. Jonkman and Baga also noticed that there was a large hole in the plastic sheet attached to the bottom of the chute. There was debris and dust spraying out of the hole.
Jonkman and Baga went up to the roof and spoke with Hamilton. But once Jonkman realized the workers were working with asbestos, she stopped her conference with Hamilton and called Lisa Van Loo, who was a DLI industrial hygienist familiar with asbestos. Van Loo's duties included conducting work site visits and inspecting them for safety and health hazards.
Jonkman and Baga went back down to the ground level to wait for Van Loo. While they were waiting outside, they saw Doug Murphy, a Northwest Abatement employee, standing in the road holding a stop/slow paddle sign. Jonkman did not see any warning signs placed in the road. A photograph Jonkman took showed Murphy standing in the bus stop area adjacent to the building without a high-visibility hard hat or a high-visibility safety garment. Murphy was helping a truck back into the work area to remove the dumpster. To reach the dumpster, the truck had to go against traffic and back across the bus stop area. Jonkman asked if Murphy had a flagger's card, but he did not provide one.
The bus stop adjacent to the building was active. The lane in which Murphy was standing was closed to regular traffic because of the construction, but it was open for buses. Jonkman did not see any buses approaching the bus stop area while Murphy was standing in the road.
Van Loo arrived, and she and Jonkman went up to the roof to continue the inspection. Van Loo took photographs during her inspection. Van Loo contacted Hamilton, and he showed her a copy of the good faith inspection and the work order. Van Loo requested and reviewed copies of the workers' respiratory fit tests and safety training documents. Crakes was wearing a half-face respirator mask despite being fitted only for a full-face respirator mask.
Van Loo observed workers using a roof saw to remove the roofing in sections and workers using a shovel to scrape along the cut line. She noticed that the cut line was not sealedoff or encapsulated in any way. She also watched workers shoveling, scraping, and sweeping dry roofing material. The workers placed the roofing material into wheelbarrows and plastic bags. The bags of material appeared to have no water in them. And the bags and the dumpster were not labeled as containing asbestos.
Van Loo took two bulk samples from loose material near...
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