F. Coluccio Const. Co., App. v. Wa. St. Dept. Of L. & I., Res.

Citation: Not availableDocket: 70334-0

Court: Court of Appeals of Washington; March 24, 2014; Washington; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

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The Washington State Department of Labor and Industries filed a motion on April 11, 2014, to publish the opinion from March 24, 2014, regarding Frank Coluccio Construction Co. Inc. The court granted this motion, allowing the opinion to be published. 

The case revolves around Frank Coluccio Construction Co.'s operation of an excavator within 10 feet of an energized power line, violating WAC 296-155-428(20)(a), which mandates a 10-foot clearance from such lines. The Board of Industrial Insurance Appeals upheld the citation and penalties against Coluccio for a serious violation of the Washington Industrial Safety and Health Act of 1973 (WISHA). The superior court also affirmed this decision. 

Coluccio was contracted by Sound Transit to replace a sewer main on Broadway Street in Seattle, where high-voltage trolley lines were present. The excavation required a trench that was 250 feet long, 13 feet deep, and 5 feet wide, necessitating a medium-sized excavator with a 20-foot boom. The corporate safety director, Robert Clouatre, acknowledged the need for a 10-foot clearance from the overhead trolley lines but was unaware of their high voltage status. He misjudged the proximity of the lines and did not recognize the potential hazards associated with working near them. The Board found substantial evidence supporting its findings and concluded that Coluccio failed to establish an affirmative defense of infeasibility regarding the clearance requirement.

Randy Brown, the project foreman, recognized that Coluccio's employees could not meet the 10-foot clearance requirement from energized trolley lines as per WAC 296-155-428(20)(a) due to the sewer's location. Despite knowing this, Coluccio did not seek a variance from the Department of Labor and Industries before commencing work. Clouatre, who had previously obtained variances for similar situations, instead coordinated with Brown to ensure safety without formal approval. They discussed positioning equipment and maintaining vigilance to avoid contact with the trolley lines. Although excavator operator Dan Mitchell was aware of the energized lines, he was not specifically instructed to maintain the 10-foot distance, and the boom frequently came within 8 to 10 feet of the lines, sometimes as close as 3 to 4 feet.

On February 11, 2011, Department compliance safety health officer Randy Paddock observed the excavator dangerously close to the trolley lines while dragging a trench box. Concerned about the risk of the boom contacting the energized lines, Paddock conducted a safety investigation. He found that Coluccio did not have a variance and noted the absence of safety devices, such as a nylon sling or limit switch, to restrict the boom's movement. Additional safety measures like a functioning strobe light and visual clearance markings were also lacking, and no spotter was present on-site, despite discussions between Paddock and Brown regarding the need for one.

Brown admitted he was not acting as a spotter while the excavator was dragging the trench box, asserting that a spotter was unnecessary because the box was more than 10 feet away from the ditch. Paddock had previously warned Coluccio's employees against operating equipment within 10 feet of energized trolley lines and provided contact information for variance assistance. After an inspection, Paddock consulted with Rick Evans, who confirmed that qualified workers could operate within 10 feet of high voltage lines only if under a variance, which Coluccio did not have for the Broadway project. Following the inspection, Coluccio ceased excavation and applied for a variance, proposing several safety measures, including training sessions, daily safety meetings, assigning a dedicated safety foreman, and installing a limiter switch on the excavator to prevent it from extending too far. 

On March 7, 2011, the Department issued an interim order permitting Coluccio to proceed with sewer work while maintaining a 4-foot clearance from the trolley lines and adhering to the proposed safety measures. This order mandated the use of a strobe light on the excavator and indicated that a visual line would be painted to mark the clearance. A dedicated spotter was required to ensure the excavator did not exceed operational limits near the energized lines, with all crew members kept at a safe distance during loading operations. Subsequently, Coluccio was cited for a serious violation of workplace safety regulations, resulting in a $1,200 penalty, defined as a substantial risk of serious harm due to known unsafe conditions.

Coluccio contested the feasibility of complying with the 10-foot clearance requirement under WAC 296-155-428(20)(a). The industrial appeals judge (IAJ) upheld the corrective notice of redetermination, finding that a Coluccio employee had operated an excavator within the required clearance of an energized Metro bus trolley line without obtaining a variance, which constituted a violation. The IAJ determined that serious injury or death was the potential consequence of this violation, and concluded that compliance was feasible at the time of the infraction, as were work operations and alternative protections. Coluccio's petition for review to the three-member Board was denied, and the Board adopted the IAJ's decision as final. Coluccio appealed to the superior court, challenging the Board's findings and evidentiary rulings. The superior court affirmed the Board's decision. On appeal, Coluccio focused solely on the feasibility determination, abandoning the evidentiary challenges.

The review process by the appellate court is based on the agency's record, with findings of fact being conclusive if supported by substantial evidence. Substantial evidence refers to evidence sufficient to persuade a fair-minded individual of the truth of the claims. The appellate court views evidence favorably towards the prevailing party, which is the Department in this case. Unchallenged findings are treated as established facts. The purpose of the Washington Industrial Safety and Health Act (WISHA) is to ensure safe working conditions, and its statutes are construed liberally. An agency's interpretation of its regulations is given significant weight, provided it aligns with legislative intent, though the court retains the ultimate responsibility for regulation interpretation. WISHA mandates that employers provide a workplace free from recognized hazards that could cause serious injury or death.

WISHA imposes a duty on employers to adhere to its regulations and orders (RCW 49.17.060(2)). The Department of Labor and Industries must assess penalties for serious violations as defined under RCW 49.17.180, with the burden of proof lying with the Department to demonstrate a violation (WAC 263-12-115(2)(b)). To establish a serious violation, the Department must prove five elements: (1) applicability of the cited standard; (2) non-compliance with the standard's requirements; (3) employee exposure to the violative condition; (4) employer knowledge or reasonable diligence regarding the condition; and (5) a substantial probability of death or serious harm resulting from it. 

Coluccio was cited for a serious violation concerning the operation of equipment near an energized power line (WAC 296-155-428(20)(a)). If a specific standard exists, it is presumed feasible, placing the burden on the employer to demonstrate otherwise. To assert an infeasibility defense, the employer must prove compliance with the standard would be technologically or economically impractical and that either alternative protection methods were implemented or none were feasible.

Coluccio argued it was not operating directly beneath the trolley lines and had taken precautions to prevent contact. However, substantial evidence supported the Board's conclusion that Coluccio failed to demonstrate alternative protective measures against the electrocution hazard or that no feasible alternatives existed. Coluccio contended that the alternative precautions discussed in an interim order were irrelevant to the citation, as they pertained to future work rather than the specific hazard cited.

Coluccio contends that the alternative safety measures are irrelevant to the hazard cited by the Department, which involved a failure to maintain a 10-foot clearance from power lines while operating a Komatsu excavator. Inspector Paddock testified that the excavator was working within this clearance, expressing concern about its proximity to energized bus lines. Coluccio inaccurately interprets Paddock’s testimony, suggesting that the citation was solely for hazards related to dragging a trench box. However, Paddock clarified that his concern was about the operation of the excavator itself within 10 feet of the lines, not just the specific task being performed. Coluccio's argument attempts to narrowly define the activity to evade liability under WAC 296-155-428(20)(a), which mandates a 10-foot clearance, presuming a safety hazard when the standard is violated. The regulation aims to prevent electrocution, and testimony indicated that feasible safety alternatives, such as using a dedicated spotter or a limit switch, were not in place during the inspection. Coluccio does not contest the feasibility of these measures but claims they are irrelevant as they would not have provided additional protection in the circumstances observed.

Coluccio contends there is no obligation to use limit switches, asserting their implementation would have been pointless as the boom did not operate under the trolley lines. However, Coluccio had proposed a limit switch in its variance application for worker safety. Testimony revealed that a limit switch could limit both the boom's height and swing, with evidence indicating the excavator's movement could lead to potential contact with trolley lines. The Board could reasonably determine that a limit switch or a dedicated spotter was necessary to prevent such contact during trench work. 

Coluccio claimed it had implemented adequate safety measures through careful work sequencing and specialized electrical training for workers regarding high voltage lines. The Board, however, is tasked with assessing the feasibility of these measures. Coluccio's argument that the absence of a specific regulation mandating limit switches absolves it of liability is flawed; Washington case law does not restrict alternative safety measures to only those listed in the Washington Administrative Code (WAC). Additionally, the Board's rejection of Coluccio's 'infeasibility' defense was based on multiple failures to implement feasible safety measures, not solely the lack of a limit switch. 

Coluccio's reliance on federal cases that address specific regulations is misplaced, as they are not relevant to the specific WAC in question. Concerns about the adequacy of electrical training were raised, especially considering that training occurred years prior and at a different site, with evidence suggesting employees were not fully aware of the high voltage risks at the current job site. Thus, substantial evidence supports the Board’s findings, leading to the affirmation of its decision. Notably, despite Coluccio's claims of precautions, evidence indicated that no spotter was present during an inspection.