Housing Authority Of King County v. Wa State Department Of Labor & Industries

• Court: Court of Appeals of Washington
• Decided: June 8, 2020
• Docket: 80408-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, DEPARTMENT OF LABOR & No. 80408-1-I INDUSTRIES , DIVISION ONE Respondent, UNPUBLISHED OPINION v.

HOUSING AUTHORITY OF KING COUNTY,

Appellant.

SMITH, J. — The King County Superior Court reversed the Board of

Industrial Insurance Appeal’s (Board) order vacating the Department of Labor

and Industries’ (Department) issuance of a citation against Housing Authority of

King County. Housing Authority appeals, asserting that the Board correctly

determined that Housing Authority complied with the Department’s regulation that

requires Housing Authority to have performed a good faith inspection for

asbestos containing material. The regulation also requires Housing Authority to

maintain the inspection reports.

Because Housing Authority’s contractor misplaced one volume of its

asbestos maintenance program and because the remaining volume did not

contain the laboratory results, sample locations, or the inspector’s credentials,

Citations and pin cites are based on the Westlaw online version of the cited material. No. 80408-1-I/2

Housing Authority failed to maintain the report as required by the cited regulation.

Therefore, we affirm the superior court’s decision and reverse the Board’s order.

FACTS

Housing Authority, a municipal corporation, provides public housing in

King County. To this end, Housing Authority owns Fairwood Apartments in

Renton, Washington. And Housing Authority contracts with Allied Residential to

run the day-to-day operations for Fairwood Apartments.

A Department regulation—promulgated pursuant to Washington Industrial

Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW—requires building

owners to perform or have performed an asbestos survey, maintain the survey’s

report, and provide the report to the Department upon request. Pursuant to this

regulation, in 1995, Clayton Environmental Consultants completed an Asbestos

Operations and Maintenance Program for Fairwood Apartments. The program

contained three volumes.

Volume 1’s stated objective was to provide for the “management of

asbestos-containing material (ACM) in the Fairwood Apartments.” Volume 1,

section 4 provided, among other things, a short summary of a survey of Fairwood

Apartments completed by Phase I Inc., an asbestos testing and removal

company. Section 4 listed the known ACM present at the apartments, i.e.,

(1) ceiling texture material, (2) gypsum board and joint compound, (3) floor tile

and mastic, and (4) roofing material. Phase I Inc.’s owner, Eric Kieselbach, later

testified that he did not recall his company’s work at Fairwood Apartments and

had no documentation. But he explained that Phase I Inc. completes two types

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of inspections: (1) “a Phase I site inspection,” which includes limited asbestos

sampling that does not comply with Asbestos Hazard Emergency Response Act

(AHERA) standards, and (2) an asbestos survey, which includes photographs,

laboratory result analyses, chain of custody information, locations of samples,

and floor plans showing where the inspector took asbestos samples. An AHERA

accredited inspector performs the asbestos surveys.

Appendix B in volume 1 provided a template for notifying the building’s

employees of ACM. The template stated that “Housing Authority . . . completed a

preliminary visual survey to determine the presence of [ACM,] . . . [and t]he

building was inspected in accordance with the Environmental Protection Agency

guidelines for [ACM].”

According to Housing Authority, volume 2 included “copies of the

applicable regulations.” And while there is no evidence of what was contained in

volume 3, Housing Authority contends that volume 3 contained “backup studies.”

Housing Authority provided volume 3 to Allied Residential, but Allied Residential

misplaced it.

In 2001, Housing Authority obtained an asbestos survey for roofing

material in conjunction with roofing construction. In 2014, it obtained another

asbestos survey for flooring material throughout the apartment complex. In

2016, Allied Residential hired OV Construction, All Service Plumbing, and

American Floors and Blinds (contractors) to perform work at Fairwood

Apartments.

Based on the construction work completed at the apartments, the

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Department received a complaint. Compliance Safety and Health Officers

(CSHO) Tom Vroman and Timothy Garlock inspected Housing Authority, Allied

Residential, and the contractors regarding the work being performed. CSHO

Garlock collected samples from the building indicating “there was asbestos.”

And CSHO Vroman requested documentation of any information pertaining to

asbestos at Fairwood Apartments that Housing Authority gave Allied Residential.

Housing Authority provided volume 1 of the program and the 2001 inspection

report from the roofing construction. Housing Authority did not provide volume 2

or volume 3 to the Department.

CSHO Vroman later determined that Housing Authority violated

Department regulations promulgated under WISHA. Specifically, CSHO Vroman

found that the program “lack[ed] specific knowledge of the presence, quantity,

and location of asbestos on-site (all items that are determined in an AHERA

accredited Good Faith Inspection).” For this reason and because the report did

not list an accredited inspector or provide laboratory results, CSHO Vroman

concluded that Housing Authority’s program did not meet the requirements of a

good faith inspection report.

On February 3, 2017, the Department issued one serious violation

(Violation 1) and one general violation (Violation 2) against Housing Authority.

Violation 1 alleged that Housing Authority “did not ensure that employees and

subcontractors assigned to do work on an asbestos project at Fairwood

Apartments were certified asbestos workers.” And Violation 2 alleged that

Housing Authority “did not perform or cause to be performed, a good faith

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building inspection, by an accredited inspector, to determine which building

materials contained asbestos.”

After the Department issued the violations, Housing Authority had another

survey performed. Housing Authority provided the resulting report to the

Department. And Mark Abernathy, Housing Authority’s risk manager, later

testified that the report indicated nothing materially different from the 1995

program.

Housing Authority appealed the violation to an Industrial Appeals Judge

(IAJ). And thereafter, Housing Authority moved for partial summary judgment,

seeking dismissal of Violation 1. In response, the Department moved to vacate

Violation 1. And the IAJ issued an order granting the Department’s motion to

vacate, thereby denying Housing Authority’s motion for partial summary

judgment.

On April 9, 2018, the IAJ held a hearing on Violation 2. Thereafter, the IAJ

issued a proposed decision and order vacating the general violation.

Specifically, the IAJ determined that the program complied with the Department’s

regulations because the program identified building materials containing

asbestos and provided specific instructions on how to maintain or repair those

building materials.

The Department petitioned for review by the Board, but the Board denied

the petition for review without comment, resulting in the Board’s acceptance of

the IAJ’s proposed decision. Thus, the Board adopted the following findings of

fact and conclusions of law:

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4. In 1995, the Housing Authority of King County, through Clayton Environmental Consultants, an accredited inspector, performed a good faith building inspection of the Fairwood Apartments to identify and determine asbestos containing materials at the apartment complex. Clayton Environmental Consultants produced a three-volume report of its inspection. The Housing Authority of King County provided a complete copy of all volumes of the inspection report to Allied Residential, whom the Housing Authority of King County hired to conduct the day to day management and maintenance of the Fairwood Apartments.

5. The Housing Authority of King County complied with the requirements of [Washington Administrative Code] (WAC) 296- 62-07721(2)(b)(ii) in that before it authorized or allowed any construction, renovation, remodeling, maintenance, repair, or demolition project, it, as the facility owner, caused to be performed a good faith inspection to determine whether materials to be worked on or removed contained asbestos, and the inspection was documented by a written report maintained on file and made available upon request to the director of the Department.

The Board therefore concluded that “Housing Authority . . . did not commit a

general violation of WAC 296-62-07721(2)(b)(ii) as specified in Violation 2, Item 1

of Corrective Notice.”

The Department appealed the Board’s decision to King County Superior

Court. The superior court determined that Housing Authority violated WAC 296-

62-07721(2)(b)(ii) because it “failed to keep[—or ‘maintain’—]the 1995 good faith

inspection report in its existing state and to preserve it from failure or decline.”

Specifically, the court found that “[t]he plain language of the code . . . requires the

entire report to be maintained on file.” Thus, the superior court reversed the

Board’s decision and affirmed Violation 2.

Housing Authority appeals.

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ANALYSIS

Housing Authority contends that the superior court erred when it reversed

the Board’s decision and determined that Housing Authority violated WAC 296-

62-07721(2)(b)(ii). We disagree.

Under WISHA, “[t]he Department bears the initial burden to prove a

violation.” Mowat Constr. Co. v. Dep’t of Labor & Indus., 148 Wn. App. 920, 924,

201 P.3d 407 (2009); WAC 263-12-115(2)(b). Here, the Department cited

Housing Authority for a violation of WAC 296-62-07721(2)(b)(ii), which states:

Before authorizing or allowing any construction . . . , a[ building’s] owner . . . must perform, or cause to be performed, a good faith inspection to determine whether materials to be worked on or removed contain asbestos. The inspection must be documented by a written report maintained on file and made available upon request to the director . . . . . . . [and] must be conducted by an accredited inspector.

In short, the regulation requires building owners to complete a good faith

inspection using an accredited inspector and to maintain the report produced

therefrom.

“Appeals from the Board are governed by the Administrative Procedure

Act (APA), chapter 34.05 RCW.” Pro-Active Home Builders, Inc. v. Dep’t of

Labor & Indus., 7 Wn. App. 2d 10, 16, 432 P.3d 404 (2019). And we “review[ ] a

decision by the Board directly, based on the record before the agency.” Mowat

Constr. Co., 148 Wn. App. at 925. To this end, “we review the Board’s findings

of fact for substantial evidence” and “‘view the evidence and reasonable

inferences in the light most favorable to [Housing Authority,] the prevailing party.’”

Pro-Active Home Builders, 7 Wn. App. 2d at 16 (quoting Frank Coluccio Constr.

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Co. v. Dep’t of Labor & Indus., 181 Wn. App. 25, 35, 329 P.3d 91 (2014)). “We

review the Board’s conclusions of law de novo to determine whether the Board

correctly applied the law and whether the Board’s findings of fact support its

conclusions of law.” Pro-Active Home Builders, 7 Wn. App. 2d at 16.

As an initial matter, Housing Authority asserts that the Department failed

to assign error to the Board’s finding of fact 5 and that it therefore cannot

challenge it on appeal. The Department argued at the superior court that it was

“not asking the Court to reverse any of the factual findings” because it was

raising “only issues of law.” To this end, the Department contested the Board’s

conclusion that Housing Authority maintained the report. While the Board

labeled the conclusion a finding of fact, the determination in finding of fact 5 that

Housing Authority maintained its report as required by the Department’s

regulations involved a conclusion of law. And even “if a conclusion of law is

labeled as a finding of fact, . . . it will be treated as a conclusion of law.” Dep’t of

Labor & Indus. v. Lyons Enters., Inc., 186 Wn. App. 518, 529-30, 347 P.3d 464

(2015), aff’d, 185 Wn.2d 721, 374 P.3d 1097 (2016). Thus, because the

Department discussed this conclusion of law at the superior court, we disagree

with Housing Authority and conclude that the Department properly raised the

issue below.

Because “[w]e interpret agency regulations as if they were statutes,” Top

Cat Enters., LLC, v. City of Arlington, 11 Wn. App. 2d 754, 760, 455 P.3d 225

(2020), and because we must discern the meaning of “maintain” within the

regulation, whether Housing Authority maintained its report in compliance with

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WAC 296-62-07721(2)(b)(ii) presents an issue of statutory interpretation that we

review de novo. See Dep’t of Labor & Indus. v. Gongyin, 154 Wn.2d 38, 44, 109

P.3d 816 (2005). “‘If a regulation is unambiguous, intent can be determined from

the language alone, and we will not look beyond the plain meaning of the words

in the regulation.’” Top Cat Enters., LLC, 11 Wn. App. 2d at 761 (quoting Mader

v. Health Care Auth., 149 Wn.2d 458, 473, 70 P.3d 931 (2003)). To that end, if a

word is not defined in a regulation, it is “given [its] ordinary definition as defined in

the dictionary.” Dep’t of Labor & Indus. v. Tyson Foods, Inc., 143 Wn. App. 576,

582, 178 P.3d 1070 (2008).

Here, the regulation is unambiguous because the intent of the regulation is

clear: a building owner must perform or have performed an asbestos survey by

an accredited inspector, maintain the survey report, and provide it to the

Department. And “maintain” is not defined in the regulation. But its ordinary

meaning is “to keep in a state of repair, efficiency, or validity[, and] preserve from

failure or decline.” W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2627

(2002). Here, Housing Authority concedes that volume 3 is missing. And volume

3 may have contained evidence of an accredited inspector’s completion of the

survey. But, as discussed below, volume 1 alone did not provide sufficient

evidence to make a determination as to whether the survey met the regulation’s

requirements. Without Housing Authority’s maintenance of the complete report

and the report’s provision to the Department, the Department cannot make an

informed determination as to whether the survey complied with and fulfilled the

purpose of the regulation. And WISHA regulations are to be interpreted liberally

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in order to achieve their purpose of providing safe working conditions for every

worker in Washington. Frank Coluccio Constr. Co., 181 Wn. App. at 36. Without

volume 3, the Department cannot assess the report’s validity. Therefore—

according to the plain language of the regulation—lacking volume 3, Housing

Authority violated WAC 296-62-07721(2)(b)(ii).

Housing Authority disagrees and asserts that volume 1 satisfied the

requirement to maintain the report. Volume 1 contains significant information on

the management of and best practices for dealing with ACM. However, the only

information relating to a good faith inspection is found in section 4, which simply

lists the four building materials known to contain asbestos. Section 4 does not

provide information on whether the listed ACMs exist throughout the whole

property, and it does not explain the sampling process, provide the laboratory

results, show the location of the samples taken, provide the inspector’s

accreditation, or give any insight into the type of ACM located throughout the

apartment complex.

In contrast, Housing Authority contends that the summary list contained in

section 4 of volume 1 applies to all units of the apartment complex. But it cites

testimony that does not provide evidence to that effect. Specifically, Abernathy

stated that section 4 applied to each apartment. But Abernathy also answered, “I

assume so,” when asked whether volume 3 would have listed “which apartment

units had asbestos.” And nowhere in the record—particularly in section 4—does

it indicate that the summary list pertained to all units. Thus, contrary to Housing

Authority’s contention, volume 1 does not provide notice of the actual location of

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ACM and does not assert that ACM is in every apartment. And to read the

regulation as requiring only a summary list of building materials containing

asbestos would undermine the regulation’s purpose to provide safe working

conditions.

In further support of its position, Housing Authority also points to the

Board’s conclusion that the program “complied with the requirements of the WAC

regulation” because, among other things, “[t]he fact that one of the volumes of

the report was lost since the report was issued does not negate the fact the

inspection was performed and the report prepared which detailed which building

products contained asbestos.” The Board’s conclusion was incorrect.

Specifically, the fact that an inspector prepared a report does not satisfy the legal

requirement that Housing Authority maintained the report and provided it to the

Department. Thus, Housing Authority’s assertion fails.

Finally, Housing Authority asserts that “the record unequivocally

establishes that [it] caused a good faith building inspection to be performed.”

First, as discussed above, due to the lack of a complete report, the Department

was unable to determine whether the survey complied with the accreditation

requirement under the statute.1 Furthermore, while Violation 2 references only

Housing Authority’s failure to perform a good faith inspection, the Department

1 To the contrary, the record suggests that Housing Authority’s inspection did not comply with the WAC 296-62-07721. Specifically, section 4 explicitly states that a “Phase I environmental assessment [was] conducted by Phase I, Inc.” And Kieselbach testified that a Phase I Inc. survey would not comply with AHERA reporting standards by an accredited inspector. Furthermore, the record provides no basis for Kieselbach’s testimony that “apparently [Phase I Inc.] did an asbestos survey,” which would have involved an accredited inspector.

11 No. 80408-1-I/12

cited WAC 296.62.07721(2)(b)(ii) as the violated and applicable regulation. And

the inspection information summary noted the importance of the information

missing from the report, stating:

[G]iven the lack of specific knowledge of the presence, quantity and location of asbestos on-site (all items that are determined in an AHERA accredited Good Faith Inspection), it is likely that many projects on site would be considered to disturb ACM or PACM. If the annual budgeting process does not accurately account cost of doing maintenance and repair work on ACM, then both parties are not appropriately setting up procedures to handle ACM properly.

Additionally, the issue of whether Housing Authority maintained the report was

litigated at the IAJ hearing and throughout the appeals process. Housing

Authority also points to no legal authority—and we have found none—that

requires the citation to specifically state all issues material to the violation. See

DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)

(“Where no authorities are cited in support of a proposition, the court is not

required to search out authorities, but may assume that counsel, after diligent

search, has found none.”). Thus, Housing Authority’s assertion is unpersuasive.

WISHA asbestos regulations are vital to the health and safety of workers

throughout the state. And because Housing Authority failed to maintain the

report’s important—if not imperative—information pertaining to the asbestos

survey, the Board erred when it concluded that Housing Authority did not violate

WAC 296-62-07721(2)(b)(ii).

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Therefore, we affirm the superior court’s reversal of the Board’s order.

WE CONCUR: