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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PERFORMANCE ABATEMENT
SERVICES, INC.,
                                                 DIVISION ONE
             Appellant,
                                                 No. 70451-6-1
                   v.

                                                 UNPUBLISHED OPINION
DEPARTMENT OF LABOR AND
INDUSTRIES,

              Respondent.                        FILED: August 11, 2014


       Dwyer, J. — Performance Abatement Services, Inc. (PAS) challenges the

Board of Industrial Insurance Appeals' (Board) determination that it failed to

provide adequate hand washing facilities, and that this failure constituted a

serious violation of the Washington Industrial Safety and Health Act of 19731

(WISHA). The Board's factual findings are supported by substantial evidence

and those findings adequately support the Board's determination. Accordingly,

we affirm.




       PAS is a company that specializes in lead and asbestos removal. In

March 2011, PAS performed asbestos and lead abatement work at a three-story

building owned by Western Washington University. The building was formerly an

armory owned by the Washington National Guard. During the building's previous

       1Ch. 49.17 RCW.
No. 70451-6-1/2



ownership, a portion of the basement was used as a shooting range.

       Work in the shooting range consisted of bagging up and removing sand,

which was littered with bullets. Due to the high amount of lead from the bullets,

the shooting range was cordoned off. A three-stage showering area was set up

outside the cordoned shooting range. The shooting range was only accessible

through the showering area, and employees working on sand removal were

required to take a shower upon leaving the shooting range.

       The rest of the building contained much lower amounts of lead than the

shooting range and was not similarly cordoned off. Work in the rest of the

building consisted mainly of removing metal from a boiler and removing lead by

scrubbing the walls with wire brushes and scraping them with a device referred to

as a "five-in-one."

       On March 17, 2011, Christian Bannick, an industrial hygienist with the

Department of Labor and Industries (Department), conducted his first inspection

of the work ongoing at the armory. Bannick later returned "at least a couple

times following up with additional walkthroughs." Following the inspections,

Bannick cited PAS for violation of Washington Administrative Code (WAC) 296-

155-17619(5), requiring the provision of adequate hand washing facilities for

employees exposed to lead.2 Bannick proposed that the violation be classified
as serious due to the potential health effects of lead exposure, including "impact

on . . . the blood forming systems," "reproductive hazards," and "neurological


        2 Bannick also cited PAS for violations of two other WAC provisions, neither of which are
at issue on appeal.
No. 70451-6-1/3



damage."

       An Industrial Appeals judge conducted a hearing on the citation. At the

hearing, the judge heard testimony from Bannick and numerous PAS employees.

These individuals testified as follows.

       Arnoldo Cantu, a laborer with PAS, stated that employees would wash

their hands in a tub connected to the showering area. The tub did not have

running water; rather, it was filled in the morning and emptied at the end of the

day. Cantu also stated that employees used the tub to clean their equipment.

       Cantu testified that a separate washing station was located on the first

floor of the armory. This station had a foot pump for running water, and was also

equipped with soap and towels. Cantu could not recall if there was a washing

facility on the second floor, but believed there was one.

       The showers, as far as Cantu could recall, always had running water.

Cantu used the showers whenever he exited the shooting range. However, he

also stated that "sometimes you can't get enough water out of" the showers.

       Mynor Arita, a former laborer with PAS, stated that employees washed

their hands in a bucket of water or sometimes with a sprayer. Arita testified that

the shower had no water.

       Lauro Santiago, a laborer with PAS, stated that employees would use

buckets filled with soap and water to wash their hands. These buckets were

filled using water hoses. Santiago stated that he and other employees would
also wash their hands using a "hotsy" sprayer. Water from the sprayer collected

in a tub, and was later emptied by hand into a 55 gallon container.

                                          -3-
No. 70451-6-1/4



        Santiago testified that the shower functioned properly, and that he would

use it every time he left the shooting range. Santiago stated that additional

showers were set up in other parts of the building. According to Santiago, the

armory was equipped with showers throughout the entire project.

        Earnest Crane, a PAS employee who served as the foreman on the

armory project, testified that he walked around the armory with Bannick during at

least one inspection. Crane stated that Bannick told him "good job" after seeing

a shower on site.


        Crane further testified that there were two showering facilities in the

basement: one for the shooting range and one for the rest of the basement.

There was also a shower located on the second floor, located near the entrance

to the building. Crane stated that the shower for the shooting range was fully

operational on the day that laborers worked in the firing range. Crane observed

the workers exit the shooting range shower and saw that all of them were wet.

After work on the firing range was completed, the shower was relocated to the

first floor.

         The only hand washing facility Crane described at the hearing was "a

three-stage shower with ... a black tub that we use on jobs with a water hose

ran inside of it," located on the second floor.

         Gary Hansen, a branch safety supervisor for PAS, testified that he

became involved with the armory project after Bannick's first inspection. During

a subsequent inspection, Hansen observed the following interaction between

Bannick and Crane:
No. 70451-6-1/5



         Mr. Bannick asked Mr. Crane if we had a hand wash station set up
         to do the lead work. Mr. Crane pointed at the shower that was set
         up in the hallway and said, "We have this shower set up." And to
         the best of my recollection, Mr. Bannick said, "That's even better."[3]

Hansen also testified that he observed "a set of buckets at the bottom of the

stairwell" being used as a hand washing facility.

         Bannick, the Department's inspector, stated that during one of his

inspections, the foreman informed him about the shower that had previously

been used, and also informed him that the employees were currently using

buckets filled with water to wash their hands. Bannick saw these buckets in the

basement and was unsure "what the source of water was." Bannick testified that

water in buckets is not clean because "[tjhat's standing water that's becoming

progressively more contaminated depending on the number of individuals that

are using it." Bannick did not see any other hand washing facilities during his

inspections, nor did he observe any employees washing their hands.

         When Bannick conducted his first inspection, work on the shooting range

had been completed, and the shower for that area had been removed. Bannick

did observe "evidence of shower stalls for decon" on site. Bannick's

understanding was "that showers were present and set up for different aspects of

the job, but that a shower was not always up, available, operational to be used in
the fashion of a hand washing facility at all times for employees during breaks."

         After considering all of the aforementioned testimony, the Industrial

Appeals judge issued a proposed decision on June 14, 2012. The judge found

         3 Bannick did not remember the conversation, but could not say that he never said such a
thing.
No. 70451-6-1/6



that "PAS employees were not given access to hand washing facilities which met

the requirements of WAC 296-155-140." Finding of Fact 5. In the proposed

decision, the judge explained her reasoning as follows:

        Ifthe point of having hand washing facilities is, as Mr. Bannick
        testified, to prevent employee ingestion of lead during breaks and
        after hours, the requirement that employees take the time to fully
        undress and shower before taking minor breaks to use the
        restroom, get water, or have a cigarette does not meet this need.
               Further, the evidence conflicted as to whether or not
        showers were even provided. This is not surprising, given the level
        of movement taking place at the Armory during that time period. . . .
        Showers were moved depending upon where they were needed in
        the building.
              Although the testimony is mixed as to whether the showers
        even worked, the testimony did establish that employees would use
        buckets, tubs, hoses, hotsy sprayers or a combination thereof to
        wash their hands when showers weren't present or working
        properly. Because I agree with Mr. Bannick that standing bucket
        water becomes progressively more contaminated depending upon
        the number of individuals using it (or, indeed, even as one
        individual uses it), I cannot find that these "alternatives" met the
        strict (and mandatory) requirements set forth in the WAC.
        Accordingly, I find that PAS violated WAC 296-155-17619(5)(a) by
        failing to provide hand washing facilities which complied with its
        requirements.

The judge further found that the violation was serious. The judge thus

concluded that "PAS committed a serious violation of WAC 296-155-

17619(5)(a)." Conclusion of Law 3.

        PAS filed a petition for review with the Board on July 26, 2012. The
Board denied PAS's petition and adopted the judge's proposed decision in

full.

        PAS appealed to the Whatcom County Superior Court. The superior court
upheld the Board's determinations in all respects. PAS was ordered to pay a civil
No. 70451-6-1/7



penalty of $400 and a statutory attorney fee of $200.

      PAS appeals.

                                         II


      PAS challenges the Board's Finding of Fact 5, that it failed to provide

adequate hand washing facilities, contending that this finding is not supported by

substantial evidence. PAS contends that the testimony of certain PAS

employees is inconsistent with the factual finding that it did not provide adequate

hand washing facilities. PAS also asserts that showers suffice as adequate hand

washing facilities. Neither contention has merit.

       "We review a decision by the BIIA directly, based on the record before the

agency." J.E. Dunn Nw.. Inc. v. Dep't of Labor &Indus., 139 Wn. App. 35, 42,

156 P.3d 250 (2007) (citing Legacy Roofing. Inc. v. Dep't of Labor &Indus., 129

Wn. App. 356, 363, 119 P.3d 366 (2005)). "We review findings of fact to

determine whether they are supported by substantial evidence." J.E. Dunn, 139

Wn. App. at 42 (citing Inland Foundry Co. v. Dep't of Labor &Indus., 106Wn.
App. 333, 340, 24 P.3d 424 (2001)). Substantial evidence is that which is "in
sufficient quantum to persuade a fair-minded person of the truth of the declared

premise." Holland v. Boeing Co.. 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978).
We review findings of fact in light of the record as a whole. J.E. Dunn, 139 Wn.
App. at 43. "Becausewe give deference to an agency's factual findings in its
area of expertise, we will uphold the Board's findings unless they are clearly
erroneous." Wash. Cedar & Supply Co. v. Dep't of Labor & Indus., 119 Wn. App.

906, 914, 83 P.3d 1012 (2004). This standard of review does not contemplate

                                        -7-
No. 70451-6-1/8



that we will "undertake an evaluation of the credibility of witnesses" or "engage in

a weighing and balancing of conflicting evidence." Gogertv v. Dep't of

Institutions, 71 Wn.2d 1, 8, 426 P.2d 476 (1967).

       The Department bears the burden of proving that a violation occurred.

Mowat Constr. Co. v. Dep't of Labor & Indus., 148 Wn. App. 920, 924, 201 P.3d

407 (2009). In order to prove that a violation occurred, the Department must

show that:

       (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; and (4) the employer knew, or through the
       exercise of reasonable diligence could have known, of the violative
       condition.

Mowat, 148 Wn. App. at 924 (citing SuperValu, Inc. v. Dep't of Labor & Indus..

158Wn.2d422, 433, 144 P.3d 1160 (2006)).

       WAC 296-155-17619(5)(a) states, "The employer shall provide adequate

handwashing facilities for use by employees exposed to lead in accordance with
WAC 296-155-140." WAC 296-155-140 states, in relevant part, "Clean, tepid

wash water, between 70 and 100 degrees Fahrenheit, shall be provided at all

construction sites." WAC 296-155-140(2)(a). The Board found that PAS had

violated these administrative provisions because employees were washing their

hands in buckets, and standing water in buckets is not clean water. PAS does

not dispute that standing water in buckets is not clean. Rather, it contendsthat
the testimony does not support a finding that buckets were the primary means by

which employees could wash their hands.

       However, substantial evidence supports the Board's finding of fact. Arita

                                         -8-
No. 70451-6-1/9



and Santiago both testified that they washed their hands in buckets. Both

Bannick and Hansen observed buckets set up as hand washing facilities. Cantu

testified that employees washed their hands in a tub with no running water, and

that employees used the same tub to wash their equipment.

       As PAS notes, there was some testimony to the contrary. Santiago

testified that there was a "hotsy" sprayer that emptied into a tub. Cantu testified

that there was a washing station operated by foot pump on the first floor.

However, "substantial evidence" does not mean "the only evidence." "It is for the

trier of fact to assess the credibility and weight to be attached to the evidence,

[and] to measure that evidence in the light of applicable legal requirements and

presumptions." Cook v. Cook, 80 Wn.2d 642, 646, 497 P.2d 584 (1972). Here,

several witnesses testified that employees used buckets to wash their hands.

Further, Cantu testified that employees washed their hands in a tub that was also

used to wash equipment. The Board gave more weight to the evidence that the

employees used buckets to wash their hands than to the scattered testimony

about sprayers and foot operated washing facilities. We will not disturb the

Board's determination.

       PAS further contends that WAC 296-155-17619(5)(a) is a "performance

standard" and, as such, PAS should be afforded leeway in deciding how to

comply with the regulation. Thus, PAS asserts, it can use showers instead of

other hand washing facilities if it so chooses. PAS relies on Sec'v of Labor v.

Thomas Indus. Coatings. Inc., 21 O.S.H. Cas. (BNA) 2283, 2007 WL 4138237

(O.S.H.R.C. Nov. 1, 2007), in support of this contention. In that case, the

                                         -9-
No. 70451-6-1/10



Occupational Safety Health Review Commission differentiated between

"performance standards" and "specification standards." Thomas Indus. Coatings,

2007 WL 4138237 at *4. This distinction is irrelevant to the case at hand,

because PAS's contention fails regardless. Under federal law, performance

standards "are interpreted in light of what is reasonable." Thomas Indus.

Coatings, 2007 WL 4138237 at *4. Here, the Board found that it was not

reasonable to expect employees to use showers to wash their hands whenever

they took a short break. Thus, even if PAS had discretion in deciding how to

comply with WAC 296-155-17619(5)(a), the Board's findings preclude a

conclusion that PAS acted lawfully.

       The Board's Finding of Fact 5 is supported by substantial evidence.

                                         Ill


       In the alternative, PAS contends that the Board erred by concluding that

its violation of WAC 296-155-17619(5)(a) was serious. This is so, it asserts,

because PAS's provision of showers provided equal or greater protection than

would have been provided by strict compliance with the administrative regulation.

We disagree.

       "The standard for a 'serious' violation is whether there is 'a substantial

probability that death or serious physical harm could result.'" Mowat, 148 Wn.
App. at 929 (quoting RCW 49.17.180(6)). "Substantial probability" is defined as
"the likelihood that, should harm result from the violation, that harm could be

death or serious physical harm." Lee Cook Trucking &Logging v. Dep't of Labor

&Indus., 109 Wn. App. 471, 482, 36 P.3d 558 (2001). Here, Bannick testified

                                        -10-
No. 70451-6-1/11



that exposure to lead can result in "impact on . . . the blood forming systems,"

"reproductive hazards," and "neurological damage." No evidence to the contrary

was offered. Thus, the Department met its burden to prove that the violation was

serious.

       Nevertheless, PAS contends that Phoenix Roofing, Inc. v. Dole, 874 F.2d

1027 (5th Cir. 1989), mandates that the violation be classified as general. This is

so, it asserts, because showers provide an equal, if not better, quality of

protection than what is mandated by WAC 296-155-17619(5)(a). Phoenix

Roofing does not support PAS's contention.4

       In Phoenix Roofing, the employer was cited for violation of a regulation

requiring that a motion stopping device at the edge or a warning line six feet from

the edge be used when employees worked on a roof more than 50 feet wide.

874 F.2d at 1029-30. Instead of a motion stopping device or warning line, the

employer used two experienced employees whose sole duty was to warn

workers when they ventured too close to the roof's edge. Phoenix Roofing, 874

F.2d at 1030. Pursuant to federal regulations, monitors are permitted only when

the roof is less than 50 feet wide, or when employees are "working within 6 feet

of the edge where only a warning line is in place." Phoenix Roofing, 874 F.2d at
1030. The administrative law judge found that this constituted a serious violation.

Phoenix Roofing, 874 F.2d at 1032.

        In reversing the administrative law judge, the appellate court noted that:

       4The Department contends that we rejected the Fifth Circuit's analysis in our decision in
Mowat. Contrary to its assertion, this court in Mowat did not reject Phoenix Roofing, but rather
distinguished that case on its facts. 148 Wn. App. at 931.

                                              -11 -
No. 70451-6-1/12



              There are, conceptually, at least three circumstances under
      which a violation may be considered de minimis: (1) Where no
      injury will result, or any injury will be minor; (2) where the possibility
      of injury is remote; or (3) where there is no significant difference
      between the protection provided by the employer and that which
      would be afforded by technical compliance with the standard.

Phoenix Roofing, 874 F.2d at 1032 (footnotes omitted). The facts in that case

established that "the citation was based only upon the compliance officer's

observation of employees working near the edge of the roof who, under the

regulations, could have been protected by monitors. The additional presence of

a warning line would be only for the protection of employees working further from

the perimeter." Phoenix Roofing, 874 F.2d at 1032. Under those circumstances,

the use of monitors "provided safety equal to or greater than that imposed by

regulation." Phoenix Roofing, 874 F.2d at 1032. The court thus held that

because the monitoring used by the employer did not "appreciably diminish" the

safety of its workers, the violation must be classified as de minimis. Phoenix

Roofing, 874 F.2d at 1033.

       The employer bears the burden of proving that it did not appreciably

diminish the safety of its workers. Hackney, Inc. v. McLaughlin, 895 F.2d 1298,

1300 (10th Cir. 1990). Unlike in the employer in Phoenix Roofing, PAS did not
meet this burden. While Cantu and Santiago testified that they took a shower

when they left the shooting range, they did not testify that they used the shower
to wash their hands on other occasions. No testimony was presented

establishing that the employees used the showers after the work on the shooting
range was completed. Finally, as the Board found, showers do not serve the

                                         -12-
No. 70451-6-1/13



purpose of WAC 296-155-17619(5)(a), because an employee is unlikely to take a

shower when taking only a short work break.

      Substantial evidence does not establish that the showers at the armory

"provided safety equal to or greater than that imposed by regulation." See

Phoenix Roofing. 874 F.2d at 1032. Accordingly, the Board did not err by

concluding that the violation was serious.

      Affirmed.




We concur:




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