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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON BALFOUR BEATTY CONSTRUCTION, INC., Appellant, v. WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) NO. 62893-3-I DIVISION ONE

UNPUBLISHED OPINION

FILED: January 11, 2010

Leach, J. -- Balfour Beatty Construction, Inc., appeals a citation issued by the Department of Labor & Industries for a "serious" violation of WAC 296817-20005. Balfour's principal claim is that the department misclassified the violation because the department failed to show a substantial probability of death or serious physical harm. We disagree. The department met its burden of proving its prima facie case, and we affirm. Background On January 2, 2005, Balfour began construction on a 750-foot-long stub tunnel for Sound Transit Light Rail in downtown Seattle.1 The excavation project A "stub tunnel" refers to the first section of a new tunnel branching from an existing tunnel which is to be completed at a later date.
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NO. 62893-3-I / 2 was a cut-and-cover operation located between 9th Avenue and Boren and underneath Pine Street. The tunnel had a depth of 40 feet below street level at the west end and a depth of 85 feet at the east end. The bulk of Balfour's work took place inside the excavation where workers operated a track hoe, clay spades, concrete vibrators, and a pneumatic hammer. At street level, employees operated a hydraulic crane, a friction crane, and an excavator. Other heavy equipment in operation at the jobsite included a wheelloader, a dump truck, a street sweeper, welders, a forklift, exhaust fans, and air compressors for powering the various tools in the tunnel section. As part of its contract, Sound Transit required that Balfour develop a community noise control plan to keep construction noise levels within the limits prescribed by applicable city ordinances. The plan projected levels of To

"unmitigated" overall noise at around the 94 to 95 decibel (dBA) level.

mitigate this noise, Balfour placed sound barriers around the job site and monitored noise levels by taking 20-minute measurements at approximately weekly intervals from five street level locations. The plan, however, did not call for, nor did Balfour perform, direct individual employee noise level monitoring. Neither did the plan call for, nor did Balfour perform, any noise level monitoring inside the excavation. On December 8, 2005, Michelle Czajka, an industrial hygienist and compliance safety and health officer with the department, inspected Balfour's

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NO. 62893-3-I / 3 site. Czajka took several measurements at various locations and found noise levels well in excess of 85 dBA. Czajka returned a week later to conduct full-shift individual employee noise monitoring. This entailed affixing noise dosimeters to individual

employees and monitoring their average noise exposure levels over the course of an eight-hour workday.2 Czajka learned that the average exposure level for

four workers in the excavation was between 87.9 dBA and 107.5 dBA. Additionally, two street level employees averaged exposures of more than 90 dBA. On March 6, 2006, the department cited Balfour for three violations, including a failure to conduct individual employee noise monitoring as required by WAC 296-817-20005.3 The department determined that this was a "serious" violation and assessed a fine of $750. After Balfour challenged all three

violations, the department issued a Corrective Notice of Redetermination on May 5, 2006, retaining the department's original citation for the WAC 296-817-20005 violation. Balfour appealed. On December 21, 2007, an insurance appeals On February 1, 2008, the

judge ordered that Balfour's citation be vacated.

department petitioned for review by the Board of Industrial Insurance Appeals. A dosimeter is a device that computes the worker's average noise level exposure over the entire exposure interval. 3 WAC 296-817-20005 states, "You must . . . [c]onduct employee noise exposure monitoring to determine the employee's actual exposure when reasonable information indicates that any employee's exposure may equal or exceed 85 dBA TWA8." As used throughout WAC 296-817, TWA8 stands for eight-hour time-weighted average. -32

NO. 62893-3-I / 4 The board granted review and on March 12, 2008, affirmed the corrective notice. Balfour appealed to the King County Superior Court, and on December 17, 2008, the court affirmed the board's decision. Standard of Review We review a decision by the board directly, based on the record before the agency.4 Findings of fact are reviewed to determine whether they are

supported by substantial evidence and, if so, whether the findings support the conclusions of law.5 "Substantial evidence is evidence `in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.'"6 If

supported by substantial evidence when viewed in light of the record as a whole, findings of fact are conclusive.7 We review questions of law, including an agency's construction of a regulation, de novo but give substantial weight to an agency's interpretation of a regulation within its area of expertise.8 Analysis The state legislature enacted the Washington Industrial Safety and Health Legacy Roofing, Inc. v. Dep't of Labor & Indus., 129 Wn. App. 356, 363, 119 P.3d 366 (2005) 5 Mid Mountain Contractors, Inc. v. Dep't of Labor & Indus., 136 Wn. App. 1, 4, 146 P.3d 1212 (2006). 6 J.E. Dunn Nw., Inc. v. Dep't of Labor & Indus., 139 Wn. App. 35, 43, 156 P.3d 250 (2007) (quoting Holland v. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978)). 7 Mid Mountain, 136 Wn. App. at 4; RCW 49.17.150(1); RCW 34.05.570(3)(e). 8 Wash. Cedar & Supply Co., Inc. v. Dep't of Labor & Indus., 119 Wn. App. 906, 912-13, 83 P.3d 1012 (2004). -44

NO. 62893-3-I / 5 Act (WISHA) "to assure, insofar as may reasonably be possible, safe and healthful working conditions for every man and woman working in the state of Washington."9 The Department of Labor & Industries is charged with

promulgating regulations under WISHA,10 and employers are responsible for complying with these regulations in their oversight of all employees.11 When the department charges an employer with a WISHA regulation violation, the department bears the initial burden of proving the violation occurred.12 If it

charges a "serious" violation of a specific WISHA provision, the department must prove as part of its prima facie case: (1) the cited standard applies; (2) the requirements of the standard were not met; (3) employees were exposed to, or had access to, the violative condition; (4) the employer knew or, through the exercise of reasonable diligence, could have known of the violative condition; and (5) there is a substantial probability that death or serious physical harm could result from the violative condition.[13] Specific WISHA provisions are those arising from the specific duty clause of RCW 49.17.060(2), which states that an employer must "comply with the rules, regulations, and orders promulgated under this chapter." The regulation at issue in this case, WAC 296-817-20005, is a specific WISHA provision requiring employers to "[c]onduct employee noise exposure monitoring to determine the employee's actual exposure when reasonable RCW 49.17.010. RCW 49.17.040. 11 Express Constr. Co. v. Dep't of Labor & Indus., 151 Wn. App. 589, 596, 215 P.3d 951 (2009). 12 Express Constr., 151 Wn. App. at 597. 13 Express Constr., 151 Wn. App. at 597-98.
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NO. 62893-3-I / 6 information indicates that any employee's exposure may equal or exceed 85 dBA TWA8." Under the regulation, "reasonable information" includes "[w]ork near abrasive blasting or jack hammering operations . . . [h]eavy equipment or machinery[,] . . . [and] [c]ompressed air-driven tools or equipment in frequent use." Balfour claims that the department must show actual employee exposure to warrant a "serious" violation of WAC 296-817-20005. Thus, according to

Balfour, without such a showing there can be no substantial probability of serious bodily harm. And since Balfour's employees were using hearing

protection, the department failed to show that its employees experienced harmful noise levels. According to Balfour, its conduct was at worst a "general" violation of the WISHA regulations. In addition, Balfour appears to contend that it is not required to directly monitor individual employee's noise exposure levels under applicable WISHA regulations. Instead, Balfour claims that WAC 296-817-30010 and -30015

allowed it to rely on extrapolated values derived from measurements taken at the street level. 14 At the outset, we note that Balfour's two arguments appear inconsistent. Asking for a downgrade of the violation to a "general" classification impliedly WAC 296-817-30010 states, "A noise dosimeter is the basis for determining total daily noise exposure for employees. However, where you have constant noise levels, you may estimate employee noise exposure using measurements from a sound level meter. Calculation of the employee noise exposure must be consistent with WAC 296-817-30015." -614

NO. 62893-3-I / 7 concedes that the department met its burden on the first four elements of its prima facie case, which includes Balfour's failure to meet the requirements of WAC 296-817-20005. Yet, Balfour asserts that it effectively met the

requirements of WAC 296-817-20005 by complying with WAC 296-817-30010 and -30015. We will treat these arguments as alternative bases for relief and address the second first. The plain language of WAC 265-817-20005 expressly refers to the singular and singular possessive forms of the word "employee" while imposing a clear mandate to monitor individual employee exposure. For example, when "reasonable information indicates that any employee's exposure may equal or exceed 85 dBA TWA8," the employer must (1) "[c]onduct employee noise exposure monitoring," (2) "determine the employee's actual exposure," (3) identify "all employees whose exposure equals or exceeds . . . 85 dBA TWA8" as measured by "noise dosimetry," (4) "[p]rovide exposed employees and their

representatives with an opportunity to observe any measurements of employee noise exposure[s]," and (5) "[n]otify each employee whose exposure equals or exceeds 85 dBA TWA8 of the monitoring results within five working days." This is precise language. The regulation unequivocally imposed on

Balfour an obligation to monitor individual employees not only at the street level but also within the tunnel. Balfour claims that it complied with the monitoring mandate under its community noise control plan and the detection methods made available under WAC 296-817-30010 and -30015. We disagree. Under -7-

NO. 62893-3-I / 8 the noise control plan, Balfour limited its monitoring activities to the street level. But, as shown by the department, the noise environment within the tunnel was much different than that present at street level. Thus, the street level

measurements were inadequate for assessing the noise conditions inside the tunnel. Moreover, the record reflects that Balfour failed to determine exposure levels within the tunnel by any method. In light of this failure, only one

reasonable conclusion can be drawn: Balfour violated the threshold requirement of WAC 296-817-20005 to monitor individual employees in at least the tunnel section of the jobsite. It is therefore irrelevant whether WAC 296-817-30010 provided an alternative method of determining exposure levels. We now turn to Balfour's primary argument--that the department must show actual exposure to support a finding of a substantial probability that death or serious physical harm could result from the violation. Our Supreme Court has held that "if the violation concerns a specific [WISHA] standard, it is not necessary to even prove that a hazard exists, just that the specific standard was violated."15 The standard presupposes the hazard: prolonged exposure to loud noises in the workplace leads to occupational hearing loss, and a failure to identify such hazards increases this risk of harm. Consequently, the "exposure" the department has to prove as part of its prima facie case refers to employer noncompliance with specific WISHA standards and the extent to which this SuperValu, Inc. v. Dep't of Labor & Indus., 158 Wn.2d 422, 434, 144 P.3d 1160 (2006) (emphasis added) (citing Lee Way Motor Freight, Inc. v. Sec'y of Labor, 511 F.2d 864, 869 (10th Cir. 1975)). -815

NO. 62893-3-I / 9 noncompliance contributed to a hazardous jobsite. It does not refer, as Balfour asserts, to some measureable injury resulting from exposure to a hazardous environmental condition. Our recent decision in Mowat Construction Co. v. Department of Labor & Industries16 illustrates this. In that case, the department cited an employer for a "serious" violation of a related WISHA provision, WAC 296-817-20010. The

employer argued that the violation should be downgraded to a "general" classification because employees at the work site were wearing earplugs, the effect of which was to reduce the experienced noise levels to acceptable limits. We disagreed and held that under WISHA's hearing loss regulations "[t]he Department is not required to prove, every time there is a citation for a serious violation, that exposure to loud noise causes hearing loss. Nor is the Department required to wait for someone to go deaf before citing the employer."17 We explained that WISHA regulations require employers to reduce noise levels at the source independently from requiring that workers wear hearing protection. The reason was that "[h]earing protection reduces the risk of hearing loss but does not eliminate it[;] . . . earplugs are not always effective and may not always be worn."18 In fact, as we pointed out, the "failure to ensure that employees are wearing earplugs is a potential violation under a different regulation, WAC 296-817-20015."19 148 Wn. App. 920, 201 P.3d 407 (2009). Mowat, 148 Wn. App. at 931 (emphasis added). 18 Mowat, 148 Wn. App. at 930.
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NO. 62893-3-I / 10 Thus, we held that whether a substantial probability of serious bodily injury justifies a "serious" penalty turns on "`the likelihood that, should harm result from the violation, that harm could be death or serious physical harm'" and "not . . . the probability that harm will occur on a particular work site."20 This means that though the use of hearing protection makes it less likely that a worker will suffer harm, "the violation is still serious because if the violation of noise standards does cause harm, there is a substantial probability that the nature of the harm will be permanent hearing loss."21 Balfour neglects to address this court's previous decisions, choosing instead to ignore controlling case law. Yet, the same rationale applies here. A "serious" violation of WAC 296-817-20005 is one that will likely result in serious injury should harm occur. Since Balfour fails to provide any compelling logic distinguishing our prior decisions from the facts of this case, his argument fails. Having determined that Balfour's interpretation of applicable law is erroneous, we turn next to whether substantial evidence in the record supports the board's findings of fact and conclusions of law. The record in this case shows that on December 8, 2005, Czajka initiated an inspection of Balfour's jobsite and found noise levels well in excess of 85 dBA. She returned on

December 15, 2008, to conduct full-shift individual employee noise monitoring.

Mowat, 148 Wn. App. at 930. Mowat, 148 Wn. App. at 932 (quoting Lee Cook Trucking & Logging v. Dep't of Labor & Indus., 109 Wn. App. 471, 482, 36 P.3d 558 (2001)). 21 Mowat, 148 Wn. App. at 932.
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NO. 62893-3-I / 11 Balfour does not contest that Czajka's measurements showed average exposure levels for four workers in the excavation well in excess of 85 dBA. Nor does Balfour contest that Czajka's measurements showed average exposure levels for two street level employees in excess of 90 dBA. Balfour's only monitoring

consisted of measurements taken at street level once a week for 20-minute intervals. We conclude that the board's findings are amply supported by

evidence in the record and that the department satisfied its initial burden of proving a "serious" violation of WAC 296-817-20005. Conclusion Because we find that sufficient evidence in the record supports a finding that the department established each element of its prima facie case, we affirm the department's penalty.

WE CONCUR:

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