   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                       DIVISION ONE

WESTERN OILFIELDS SUPPLY,  )                     No. 75615-0-1
d/b/a RAIN FOR RENT,       )                                                             -

                           )
               Appellant,  )
                           )
       v.                  )
                           )
WASHINGTON STATE DEPARTMENT)                     UNPUBLISHED OPINION
OF LABOR AND INDUSTRIES,   )
                           )                     FILED: November 20, 2017
                           )
               Respondent. )
                                         )

      VERELLEN, C.J.- A Rain for Rent employee suffered a severe hand injury
when he reached inside a rented pipe fusion machine without deactivating the

machine's hydraulics. The Department of Labor and Industries (Department) cited

Rain for Rent for violating WAC 296-155-040(2), the safe place standard.

      The manufacturer's operator manual instructs users to turn off the hydraulics

before reaching inside the unit. Rain for Rent did not provide the operator's manual

with the machine or require the employee to review the manual, and Rain for Rent

itself identified the employee's failure to follow the operator's manual as a cause of

the incident. Because the Department presented substantial evidence that Rain for

Rent failed to provide a workplace free of a hazard, the hazard was recognized, the

hazard caused serious physical harm, and there were feasible means to eliminate or
No. 75615-0-1-2


materially reduce the hazard, the Board of Industrial Insurance Appeals (Board) did

not err when it upheld the citation.

       Additionally, the Board correctly determined Rain for Rent did not prove its

affirmative defense of unpreventable employee misconduct. And Rain for Rent failed

to establish the accident prevention program rule was more specific than the safe

place standard in this setting.

       Therefore, we affirm.

                                       FACTS

       Rain for Rent is a nationwide company that provides temporary liquid handling

solutions. In July 2013, Rain for Rent was helping build a wastewater treatment plant

in Bellingham. Rain for Rent rented a McElroy Pitbull-900 pipe fusion machine to

assist with the project.

       Michael Landdeck, who primarily worked for Rain for Rent as a delivery driver,

was assigned the job of operating the fusion machine. He performed fusion jobs

once every year or year and a half. Landdeck had received prior training on using

pipe fusion machines, but Rain for Rent had not performed a fusion job in nearly two

years. The Pitbull-900 was a new machine that Rain for Rent had not used before.

       Landdeck discovered that the operator's manual was not with the machine

"the day the machine showed up"1 Landdeck informed his supervisor that the

operator's manual was missing from the machine's manual box. Rain for Rent




       1 Clerk's Papers(CP)at 264-65.



                                           2
No. 75615-0-1-3



neither provided a copy nor required Landdeck to review the manual. Landdeck

continued to use the fusion machine without reviewing the manual.

       The fusion machine's carriage had two fixed jaws and two hydraulically

operated jaws. These jaws held the two pipe sections in place. A double-sided

"facer"(circular pipe with three rotating cutter blades) was between the jaws. To

"face"2 the pipe, Landdeck used the machine's hydraulics to move the jaws together,

bringing the two pipe ends into contact with the facer. The rotating cutter blades

shaved plastic ribbons3 from the pipe, squaring off the ends of the pipe. A heat plate

then seals the pipe ends together. Unlike the machines Rain for Rent had used

before, this machine had different hydraulic controls, and the heat plate stayed on

even when the hydraulics were shut off.

       The operator's manual for the Pitbull-900 instructed, "Turn the hydraulics off if

it is necessary to enter the unit for maintenance or chip removal. Death or serious

injury will result if the hydraulics are activated while in the unit." The warnings

referred to cleaning "shavings out of pipe ends and from between the jaws."5 And the

manual directed, "Before operating this machine, please read this manual thoroughly,



       2 "Facing" is theprocess of shaving down the pipe ends to prepare for fusing
them together. See CP at 255, 575-80.
       3 At the hearing, Landdeck called the plastic shavings "ribbons," see CP at
255, but the operator's manual refers to them as "shavings" or "chips," see CP at
576. These terms were used interchangeably at the hearing, see CP at 307("Okay.
What did the operator's manual say about chip or ribbon removal during pipe
facing?").
       4 CP   at 576.
       5 CP at 576(emphasis added).



                                            3
No. 75615-0-1-4


and keep a copy with the machine for future reference. This manual is to be

considered part of your machine."6

       On July 16, 2013, Landdeck used this machine to face two sections of 36-inch

high density polyethylene(HDPE) pipe. He noticed plastic shavings catching

between the facer and a metal shroud that covered it. He thought he had to remove

the shavings to continue the job, so he reached into the machine to dislodge them.

Landdeck did not deactivate the machine's hydraulics before attempting to remove

the shavings. He inadvertently leaned against a lever near his knee, which moved

the carriage to the right, pinching his hand between the pipe and the facing plate.

The force crushed his hand.

       In the weeks before the incident, Landdeck had completed several job safety

analysis(JSA) worksheets that identified "pinch points" as a hazard and directed the

operator of the machine to watch hand placement. In the handwritten section of the

JSA worksheet, Landdeck wrote,"Keep hands out of pinch points."7 But the JSA

worksheets did not provide instructions on how to remove shavings and did not

mention turning off the hydraulics.

       Rain for Rent's employees participate in an initial 40-hour training, monthly

specific safety and health training, and an annual lockout/tagout program. The

company also has written safety rules, policies, and procedures available in hard

copy at each branch. The goal of the written lockout/tagout policy is "that adequate



       6 CP at 545(emphasis added).
       7 CP at 279.




                                           4
No. 75615-0-1-5



procedures exist to prevent unexpected energization, start up or release of stored

energy."8 After the incident, Landdeck told the Department's compliance officer he

had not seen the lockout/tagout policy or Rain for Rent's pipe cleaning standard

operating procedure. At the hearing, Landdeck testified he was aware of the

lockout/tagout policy and it was possible he reviewed it before the incident, but the

policy did not specifically address this machine. Landdeck testified that he had never

been trained on the issue of ribbons being stuck while facing pipe. At the hearing,

Landdeck also testified it was "possible" Rain for Rent had a policy to shut down

hydraulics. Landdeck had not previously encountered this problem with shavings. At

some unspecified time, Landdeck participated in two two-week training sessions with

the manufacturer's representative. There is no evidence of the substance of the

manufacturer's training. Rain for Rent's regional safety manager testified that he had

the same five days of training on fusion provided by Rain for Rent fusion instructors

and that training included turning off hydraulics before reaching into a fusion

machine.

       For the fusion machines Landdeck previously used, turning off the hydraulics

also shut off the heater plate. After discussing the incident with Landdeck, the

inspector believed Landdeck did not turn off hydraulic pumps because he thought he

would have to wait for the heater plate to reheat, and Landdeck was concerned about

the July 19, 2013, project deadline.




      8 CP   at 448.



                                           5
No. 75615-0-1-6


       Rain for Rent conducted an internal investigation. Its regional safety manager

concluded the incident was caused by (i) Landdeck's failure to follow the operator's

manual while using the fusion machine, (ii) Landdeck's failure to follow Rain for

Rent's lockout/tagout policy, (iii) Landdeck's failure to follow Rain for Rent's HDPE

pipe cleaning standard operating procedure,(iv) the speed of the fusion process to

meet the July 19 deadline, and (v) worker fatigue. The report noted Landdeck did not

shut down the hydraulic pump before "entering the pinch crush point."9

       Landdeck received "written disciplinary action" as a result of this incident.10

According to Landdeck's site supervisor, having an operator's manual would probably

have helped with the heater plate shutdown because the manual would have

explained the heater plate would not lose heat even if the operator shut down the

hydraulics.

      The Department citedll Rain for Rent for violating WAC 296-155-040(2), the

safe place standard.12 Rain for Rent appealed to the Board, and the Board affirmed

the citation. The Board noted,"The employer could have insisted its fusion machine

operators thoroughly read the operator's manual in order to be prepared for



       9 CP   at 479.
       10 CP at 466.
       11On September 24, 2013, the Department cited Rain for Rent for violating
WAG 296-155-035(2)(inadequate training), but issued a corrective notice on
December 16 citing Rain for Rent for violating WAG 296-155-040(2)(safe place
standard) instead.
      12 "The employer did not adopt and use practices or methods which are
reasonably adequate to furnish a place of employment that is free from a recognized
hazard." CP at 533.



                                            6
No. 75615-0-1-7


situations (like this one) which may not have been seen before by any particular

machine operator."13

       The Board found Landdeck "was exposed to the potential and foreseeable

hazard of an unsafe workplace when his hands were in close proximity of the fusion

machine while he was operating the machine."14 And Rain for Rent failed to provide

a safe workplace because it failed to (i) furnish a copy of the manual to its employee,

(ii) insist its employee read the manual, or (iii) provide equivalent training. It also

found Rain for Rent "did not take effective steps to discover and correct violations of

safety rules related to the protection of its workers from potential injuries."15 It

concluded the Department "met each element of the safe place standard, WAC 296-

155-040(2), by a preponderance of the evidence."16

       On appeal, the Whatcom County Superior Court affirmed the Board's decision,

concluding that substantial evidence supported the Board's decision.

       Rain for Rent appeals.

                                        ANALYSIS

       We review the Board's decision directly, based on the record before the

agency.17 The Board's findings of fact "are conclusive if supported by substantial




       13 CP   at 57.
       14   CP at 59.
       15 CP   at 60.
       16   CP at 57.
       17 J.E. DunnNw., Inc. v. Washington State Dep't of Labor & Indus., 139 Wn.
App. 35, 42, 156 P.3d 250(2007).
No. 75615-0-1-8


evidence when viewed in light of the record as a whole."18 Evidence is substantial if

it is sufficient to "persuade a fair-minded person of the truth of the declared

premise?" This court views "the evidence and reasonable inferences in the light

most favorable to the prevailing party."2° If there is substantial evidence to support

the findings, we determine whether the findings support the conclusions of law.21

I. WAC 296-155-040(2)"Safe Place Standard" Violation

       Rain for Rent contends the citation should be vacated because the

Department failed to establish that Rain for Rent violated WAC 296-155-040(2), the

safe place standard.

       The regulation requires an employer to "furnish each employee a place of

employment free from recognized hazards that are causing or likely to cause serious

injury or death to employees."22 The regulation also requires employers to "adopt

and use practices, methods, operations, and processes which are reasonably

adequate to render such employment and place of employment safe."23

       To establish a violation of a safety regulation under the Washington Industrial

Safety and Health Act(WISHA),chapter 49.17 RCW,the Department must prove

(i) the employer failed to provide a workplace free of a hazard, (ii) the hazard was


       18Id. at 43(citing RCW 49.17.150(1); RCW 34.05.570(3)(e)).
      19 Holland v. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978).

      20 Frank Coluccio Const. Co. v. Washington Dep't of Labor & Indus., 181 Wn.
App. 25, 35, 329 P.3d 91 (2014).
      21 Id. (citing RCW 49.17.150(1)).

       22 WAC 296-155-040(1).

            WAC 296-155-040(2).



                                            8
No. 75615-0-1-9


recognized, (iii) the hazard was likely to cause death or serious injury, and (iv) there

were feasible means to eliminate or materially reduce the hazard.24 25

       (i) Workplace Free of Hazard

       Rain for Rent argues the Department did not present substantial evidence that

a hazard existed at the worksite.

       Here, Landdeck was exposed to "the potential and foreseeable hazard of an

unsafe workplace when his hands were in close proximity of the fusion machine while

he was operating the machine."26 Specifically, he was injured when he attempted to

remove shavings from inside the fusion machine. Substantial evidence supports the

Board's finding that this was an unsafe work practice. Landdeck testified he did not

deactivate the machine's hydraulics before attempting to remove the shavings.

When Landdeck's leg inadvertently pressed against a lever that controlled the

machine's hydraulic jaws, his hand was crushed. The Department's construction




       24 Dep't of Labor & Indus. v. Kaiser Aluminum & Chem. Corp., 111 Wn. App.
771, 780,48 P.3d 324(2002)(citing Donovan v. Royal Logging Co., 645 F.2d 822,
829 (9th Cir. 1981)); SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202, 1207(D.C.
Cir. 2014).
       25 When construing WISHA statutes, Washington courts look to parallel federal
authority under the federal Occupational Safety and Health Act(OSH Act), 29 U.S.C.
§§ 651-678. See SuperValu, Inc. v. Dep't of Labor & Indus., 158 Wn.2d 422, 433,
144 P.3d 1160(2006)("As part of its burden under the general duty clause, L & I
'must specify the particular steps the employer should have taken to avoid the
citation. ..[and] must demonstrate the feasibility and likely utility of those measures.'
This is the same burden that OSH Act's general duty clause requires.")(quoting
Kaiser Aluminum, 111 Wn. App. at 780).
       26   CP at 59.


                                            9
No. 75615-0-1-10


construction safety expert, David Conley, testified that this exposed Landdeck to a

"caught-in or struck-by hazard."27

       Rain for Rent offers Department of Labor & Industries v. Kaiser Aluminum &

Chemical Corporation for the proposition that its "adequate safety and training

program" negated any actual hazard at the worksite.28 But Kaiser Aluminum stands

only for the proposition that the practice of using an angle iron to support the bucket

of a small front-end loader was widely accepted in the industry, and the Department

failed to present evidence that the angle iron had failed or became dislodged to

cause the injury.29 It does not stand for Rain for Rent's suggestion that training

renders a hazard moot. Viewed in a light most favorable to the prevailing party, the

record supports the determination that a hazard existed.

       (ii) Recognized Hazard

       Rain for Rent contends the Department did not present substantial evidence

that the hazard was "recognized."30

       A hazard is "recognized" if the employer had actual knowledge that the

condition was hazardous or it is generally known to be hazardous in the industry.31

Recognition may be proved without reference to industry practice or safety expert


       27 CP   at 377.
       28   111 Wn. App. 771,48 P.3d 324(2002).
       29 Id. at 773, 780.
       30 Br. of App. at 16.
       31 Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 321 (5th Cir. 1984);
see Titanium Metals Corp. of America v. Usery, 579 F.2d 536, 541 (9th Cir. 1978)
("An activity or practice may be a 'recognized hazard' even if the employer is ignorant
of the existence of the activity or practice or its potential for harm.")



                                           10
No. 75615-0-1-11


testimony if the hazard is "obvious and glaring."32 An employer's knowledge can be

actual or constructive, and common knowledge can be used to establish that a

hazard is recognized.33

       Rain for Rent narrowly defines the hazard as removing chips stuck under the

shroud and argues this particular hazard was not recognized by the company or the

industry at large. But the hazard was reaching between the jaws to remove chips, a

risk expressly recognized in the operator's manual. And reaching between the jaws

of an energized pipe fusion machine is also an "obvious and glaring" hazard.34 As

the Department's construction safety expert testified,"common sense just tells me,

from looking at the machine and how it operates, that there are many hazards."35

       (iii) Caused Serious Physical Harm

       It is undisputed that the Pitbull-900 fusion machine was "likely to cause death

or serious injury."36



       32 Tri-State Roofing & Sheet Metal, Inc. v. Occupational Safety & Health
Comm'n,685 F.2d 878, 880-81 (4th Cir. 1982).
       33 See In Re: The Hertz Corn., 1996 WL 473419, at *4(Wash. Bd. Ind. Ins.
App.)(holding crossing the middle line in a road and driving the wrong way into traffic
constituted a recognized hazard).
       34 See Tri-State Roofing, 685 F.2d at 880-81 ("Where a hazard is obvious and
glaring, the [Occupational Safety and Health] Commission may determine that the
hazard is recognized for purposes of the general duty clause, 29 U.S.C. s 654(a)(1),
without reference to industry practice or safety expert testimony.").
       35 CP at 378(emphasis added); see CP at 328 (regarding how he determined
this was a recognized hazard even though it may have been an isolated incident, the
Department's compliance officer testified on cross-examination, "It's a pinch point on
a machine that you had access to because it's right in front of your face when you're
operating the machine.").
       36   Kaiser Aluminum, 111 Wn. App. at 780.



                                          11
No. 75615-0-1-12


       (iv) Feasible Means to Correct or Materially Reduce the Hazard

       Rain for Rent contends the Department failed to show that a feasible

abatement method existed to mitigate the hazard.

       Employers do not have an absolute duty to make safe the working

environment of its employees.37 But employers do have the duty to abate recognized

hazards.38 An effective abatement method is one that will materially reduce or

eliminate the hazard and is a feasible and useful means of doing so.39 "Abatement is

'feasible' when it is 'economically and technologically capable of being done.'"4°

       Here, the Board noted several feasible means to reduce the hazard, including

(i) attaching a safety manual to the machine, (ii) insisting its fusion machine operators

thoroughly read the operator's manual, or (iii) providing training or instruction on how

to remove shavings from a pipe fusion machine.

       Rain for Rent argues the Board's ruling creates an unreasonable per se rule

that employers must "attach operator's manuals to every piece of machinery.',41 To

the contrary, attaching the manual to the machine was only one of three ways the

Board suggested Rain for Rent could have abated the hazard.




     37 Baroid Div. of NL Indus., Inc. v. Occupational Safety and Health Review
Comm'n,660 F.2d 439, 447-48 (10th Cir. 1981).
       38   Id.
             of Labor v. Morrison-Knudsen Co., 16 O.S.H. Gas.(BNA)1105, 1993
       39 Sec'v
WL 127964, *19 (0.S.H.R.C. Apr. 20, 1993).
     40 SeaWorld of Florida, 748 F.3d at 1215 (quoting Baroid, 660 F.2d at 447).
       41 Br. of App. at 25.



                                           12
No. 75615-0-1-13


       Rain for Rent contends having the manual with the machine would not have

made a difference because the warning is for maintenance or chip removal only "in

the context of cleaning shavings 'out of pipe ends.'"42 But the manual refers to

removing "shavings out of pipe ends and from between thejaws."43 Landdeck was

removing plastic shavings from "between the jaws" at the time of the incident.

Substantial evidence taken in the light most favorable to the Department supports the

determination that the manual's warnings applied in this setting. Rain for Rent's own

investigation also identified Landdeck's failure to follow the manual's directions as a

cause of the incident.

       The Board recognized there was evidence that Landdeck may not have turned

off the hydraulics for fear that the heater plate would have to be reheated and the

delay would have jeopardized his deadline. Rain for Rent suggests reading the

manual would have been ineffective because the manual did not state the hydraulic

pump and heater plate were separately controlled. But the manual shows the

hydraulic pump and the heater are controlled by separate on/off switches. The

depiction of the separate switches in the manual supports a reasonable inference

that the hydraulics could be shut off independently of the heater plate.

       Rain for Rent contends Landdeck was trained and aware of the pinch point

potential of the fusion machine. The JSAs acknowledged that pinch points were

hazards, but contrary to Rain for Rent's contention advanced at oral argument, the



       42   Br. of App. at 17.
       43 CP   at 576(emphasis added).



                                           13
No. 75615-0-1-14


JSA's did not address what steps employees should take if they encounter shavings

getting caught in the machine. And the compliance officer noted during his

investigation Landdeck had no formal training in this model of fuser, there was no

formal company policy for shavings removal using this size pipe, and Landdeck "was

not aware that the hydraulics could be shut off independent of the heating pad

because it was a newer model of machine that he hadn't worked with before on the

fusion."'"

       Taking the evidence and reasonable inferences in the light most favorable to

the Department,(i) providing the operator's manual, (ii) insisting the employee read

the manual, and (iii) specific training on chip removal were each feasible means to

mitigate the hazard.

       We conclude the Board properly affirmed the safe place standard violation.

II. Unpreventable Employee Misconduct

       Rain for Rent argues the citation should be vacated because it resulted from

unpreventable employee misconduct.

       The Department may not issue a citation if unpreventable employee

misconduct caused the violation.45 To establish this affirmative defense,46 the

employer must show:




       44 CP   at 322.
       45   RCW 49.17.120(5)(a).
       46Potelco, Inc. v. Dep't of Labor & Indus., 194 Wn. App. 428,435, 377 P.3d
251 (2016), review denied, 186 Wn.2d 1024(2016).



                                          14
No. 75615-0-1-15


      (i) A thorough safety program, including work rules, training, and
      equipment designed to prevent the violation;

      (ii) Adequate communication of these rules to employees;

      (iii) Steps to discover and correct violations of its safety rules; and

      (iv) Effective enforcement of its safety program as written in practice
      and not just in theory.[471

"An employer asserting the defense must prove each element."45 The "evidence

must support the employer's assertion that the employees' misconduct was an

isolated occurrence and was not foreseeable.'"49 We apply the substantial evidence

standard to our review of Rain for Rent's proof of its unpreventable employee

misconduct defense.59

       First, Rain for Rent contends its safety program was thorough because it

included a lockout/tagout policy that "instructed employees on how to isolate

hazardous energy" and Landdeck participated in training from the machine's

manufacturer.51 But there is a factual dispute as to when Landdeck reviewed the

lockout/tagout policy, and there is no evidence the lockout/tagout policy addressed

the safe removal of shavings from the fusion machine. Additionally, Rain for Rent did




      47 RCW 49.17.120(5)(a).

       48Potelco, Inc., 194 Wn. App. at 435.
      49 Id. (quoting BD Roofing, Inc. v. Dep't of Labor & Indus., 139 Wn. App. 98,
111, 161 P.3d 387(2007)).
      59 Legacy Roofing, Inc. v. Dep't of Labor & Indus., 129 Wn. App. 356, 363, 119
P.3d 366 (2005).
       51   Br. of App. at 28.



                                            15
No. 75615-0-1-16


not establish when the manufacturer's training occurred, and there is no evidence of

the substance of Landdeck's specific training with the manufacturer.

       Here, the Board noted Rain for Rent "offered records of various safety

meetings that purport to reflect a safety program that includes regular safety

meetings, training, and communication of the safety program to employees."52 The

regional safety manager testified that Rain for Rent has eight chapters of policies,

procedures, and written safety rules, with approximately between fifteen and twenty

different safety rules in each chapter. The Rain for Rent fusion instructors teach

operators to turn off hydraulics before reaching into a machine. But the absence of

training on safe removal of shavings from between the jaws, without providing the

required operator's manual or requiring Landdeck to review the manual, leaves

doubts about the thoroughness of Rain for Rent's safety program.

       Second, Rain for Rent contends it adequately communicated its safety rules to

employees. But the Board observed,"testimony from Mr. Landdeck in regards to

[lockout/tagout] policies and his use of the fusion machine suggests that

communication of the company's policies were neither accomplished nor effective

from Mr. Landdeck's perspective."53 Here, Landdeck told the inspector that he had

not seen the lockout/tagout policy before and did not review the standard operating

procedure for pipe cleaning. He gave equivocal "it's possible" answers to several

questions about the safety policies. Rain for Rent's description of its policies in the



       52 CP at 58.
       53 CP at 58.




                                           16
No. 75615-0-1-17



record does not establish it adequately communicated to Landdeck the need to turn

off the hydraulic pump before placing his hand between the jaws of the machine.

Landdeck's equivocal testimony, along with the compliance officer's report, show a

confused understanding of the policies, training, standard operating procedure, and

JSAs as applied to removal of shavings.54

      Third, Rain for Rent contends its safety program is effective in practice

because only one injury took place in the past five years, it had a "lower than average

amount of workers compensation claims," and it made efforts to comply with safety

standards before the Department's inspection.55 But "in order for the employer to

prove that the enforcement of its safety program is effective, it must prove that the

employee's misconduct was not foreseeable."56

       Here, the manual addressed removing plastic shavings. The Department's

construction expert testified that, by mentioning shavings in its manual, the

manufacturer would "expect this as part of normal operations."57 Rain for Rent's

regional safety manager testified that the impending deadline for the work to be

completed was a contributing factor to the incident. Given this context, absent review




      64 Rain for Rent also emphasizes the inaccurate observation by the Board that
Landdeck completed the JSAs after the incident, although it is clear they were
completed before the incident. But this inaccuracy does not undercut the Board's
concerns about ineffective communication regarding the lockout/tagout policy and
removal of shavings.
       66   Br. of App. at 30-31.
       66   Legacy Roofing, 129 Wn. App. at 366-67.
       67 CP   at 387.



                                           17
No. 75615-0-1-18


of an operator's manual or equivalent training, it was foreseeable that Landdeck

would reach into the machine to remove shavings.

      We conclude Rain for Rent failed to prove this incident was the result of

unpreventable employee misconduct, thus its affirmative defense fails.58

III. More Specific Standard

       Rain for Rent argues the citation must be vacated because a more specific

standard applies. Rain for Rent contends WAC 296-155-110, accident prevention

program regulation, is more appropriate in this setting because it covers "violative

conditions" such as inadequate safety plans.58

       Under WAC 296-155-110(2), each employer must "develop a formal accident-

prevention program, tailored to the needs of the particular plant or operation and to

the type of hazard involved." The regulation specifies that the program must be

outlined in a written format and lists minimal program elements for all employers.80

      As the Board recognized, WAC 296-155-110 is not more specific than the safe

place standard in this setting because "an accident prevention program applies

universally to worksites and generally applies no more specifically to the facts of this

case than they would in most other worksite situations."61 The Department's expert

witness even acknowledged Rain for Rent has "what is actually a very good written



      55 We need not address whether Rain for Rent took adequate steps to
discover and correct safety violations. See Br. of App. at 29.
      59   Br. of App. at 34.
      8° WAC 296-155-110(3)(4).
      61   CP at 57.



                                           18
No. 75615-0-1-19



accident prevention program."62 The safe place standard requires employers to

provide places of employment that are free of recognized hazards,63 a more specific

standard as applied here.

       We conclude WAC 296-155-110 was not a more specific applicable standard

in this setting. Therefore, we affirm.




WE CONCUR:




                                                        eux,




       62 CP   at 397.
       63 WAC 296-155-040.




                                         19
