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         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II


     APCOMPOWER INC.,                                                            No. 43104 -1 - II


                                       Respondent,                      UNPUBLISHED OPINION


              ka



     STATE OF WASHINGTON, DEPARTMENT
     OF LABOR AND INDUSTRIES,




              BJORGEN, J. —      The Washington State Department of Labor and Industries ( Department)


I_   cited   APComPower Inc. (      APC) for violations of the Washington Industrial Safety and Health

     Act ( WISHA),        chapter 49. 17 RCW, related to asbestos removal while performing work at the

     Centralia steam plant. After an industrial appeals judge ( IAJ) found that APC had committed the

     violations, and the Washington State Board of Industrial Insurance Appeals. (Board) affirmed


     that decision by order, APC appealed the Board' s order to the superior court. The superior court

     vacated the order after determining that APC' s intent to avoid asbestos work and reliance on

     statements    that   no asbestos was present   in the   work area excused   its lack   of compliance.     The
No. 43104 -1 - II



superior court also determined that the Department failed to show that APC knew of the presence

of asbestos or that the work exposed APC' s employees to asbestos.

         The Department           appeals    the   superior court' s     decision.    Rejecting APC' s arguments that

its subjective intent governed the applicability of the regulations, that it could rely on the plant

owner' s statements about the absence of asbestos to discharge its duty to comply with the

regulations, that it could not have known of the regulatory violations through the exercise of the

reasonable diligence, and that the Department needed to show its employees were exposed to


asbestos, we reverse the superior court and reinstate the Board' s order affirming the citation.

                                                            FACTS


         APC contracted to perform boiler maintenance work at TransAlta' s steam plant in

Centralia, Washington.             In the course of performing these services, APC assigned employees to

work on two boiler air preheaters, numbers 11 and 12, during a scheduled maintenance period in

May 2009.

          The preheaters are large mechanical units that pipe hot gas emerging from the boilers in

close   proximity     to   cold   air entering the boilers. This allows for a heat exchange that warms the


incoming      air,   reducing thermal        shock and stress       on   the boilers.        To achieve an efficient heat


exchange,      the   preheaters are     heavily     insulated. To work on the underlying equipment, workers


must first remove this insulation.


          Because the plant was built in 1972, its construction involved the extensive use of

 asbestos products,        especially in its insulation.         APC' s contract with TransAlta states that APC

will    not   perform      any    asbestos   abatement     as   part   of   the   services    it   provides.   APC is not a




                                                                2
No. 43104 -1 - II


certified asbestos contractor, and the employees assigned to the work on the preheaters were not


certified asbestos workers.



         In preparation for the work on preheaters 11 and 12, APC asked TransAlta whether the

insulation it    needed     to   remove    contained     asbestos.       Keith Ortis, the on -
                                                                                             site supervisor of


TransAlta' s asbestos consultant, informed Ralph Mitchell, APC' s foreman for the boiler work,

that the insulation in APL' s work area did not contain asbestos. However, Ortis did mention that

the   plant   used    asbestos   block   material   in the vicinity      of preheaters      11   and   12.    Ortis drew


Mitchell a map laying out his recollection of the location of asbestos -containing insulation.

Based on the map and Mitchell' s discussion with Ortis, a job safety analysis prepared by APC

and approved by TransAlta does not list asbestos as a safety concern.

         On    May    25, 2009, APC began removing insulation between                  preheaters      11    and   12.   The


work site was not demarcated and controlled as a regulated area, nor did it have a negative

pressure enclosure or a decontamination area. APC' s employees worked without high efficiency

particulate air (    HEPA)   respirators,)   and APC never performed initial or continuing monitoring of

its workers' asbestos exposure.


         After removing a thick layer of fiberglass wool insulation, APC employees encountered

dry   white   block insulation in    one -foot   by   one -foot   by       inch
                                                                       two -      pieces.   One employee estimated


that he and his partner removed between 8 and 15 of the blocks from the preheaters before

stopping      work.   After removing the block insulation, APC' s employees broke up the blocks and




 1 One of the employees testified he may have had a HEPA respirator at one point in his
testimony, although he later stated that even if the respirator had a HEPA filter, it had no positive
air supply as required by WAC 296- 62- 07715( 4)( a)( ii).

                                                            3
No. 43104 -1 - II



placed   the pieces   into 50-        or   60- gallon   clear plastic garbage    bags.    They later disposed of these

bags in the plant' s dumpsters.


         After APC' s employees had finished removing the insulation from the work area,

Mitchell walked by. One of the employees picked up a small piece of the block insulation lying

nearby   and asked    Mitchell if he          should    have any safety    concerns.     Mitchell told the employee to


wait    while   he   summoned          Ortis to     examine    the   material.   When Ortis arrived, he informed


Mitchell and the worker that the block contained asbestos.


         APC' s safety coordinator then directed the employees to proceed to the nearest bathroom,

where    they   placed   their clothing       and   boots in   sealed contamination      bags. The safety coordinator


did not use a HEPA vacuum to decontaminate the men before asking them to leave the work

area.



         In order to test whether the insulation the APC employees handled actually contained

asbestos, Ortis later retrieved a small sample of the white block material from one of the clear


plastic bags placed in a dumpster. A laboratory tested this piece of material, as well as material

sampled from the vicinity of preheaters 'l l and 12. All of the materials contained asbestos.

          The Department investigated the incident and cited APC for serious violations of

Washington         Administrative           Code ( WAC)         regulations related to working with asbestos

                               2
containing      materials.         APC appealed the citation, and the parties contested the violations before



2
    Specifically, the citation alleged that APC performed an asbestos abatement project without
obtaining the necessary              certification   in   violation of   WAC 296 -65- 030( 1);    failed to establish a
regulated area, negative pressure enclosure, and decontamination area surrounding or adjacent to
thework area in violation of WAC 296 -62- 07711( 1), - 07712( 7)( a), and - 07719( 3)( b)( i); failed to
employ certified asbestos workers to perform a class I abatement project in violation of WAC
296- 62- 07722( 3)(        failed to wet the asbestos before disturbing it in violation of WAC 296- 62 -
                         a);

07712( 2)(   c);   failed to decontaminate workers with a HEPA vacuum before allowing them to


                                                                 4
    No. 43104 -1 - II



    an IAJ.


              The IAJ determined that in the performance of its contract APC had performed asbestos
4


    work    under      the governing regulatory          scheme.       The IAJ determined that APC' s intent was


    irrelevant to the applicability of the regulations. The IAJ also concluded that APC could not rely

    on Ortis' s statements regarding the presence of asbestos, or the " confusing" map that he drew, in

    order   to   excuse   its lack   of compliance with     the   asbestos   related regulations.   3 Board of Industrial

    Insurance Appeals Record ( BR)            at   45.   The IAJ rejected APC' s argument that the Department


    could not show any worker exposure to asbestos after finding the Department adequately showed

          of-custody.
    chain -                  The IAJ reached this conclusion by noting that the bag containing the sample

    Ortis removed was distinctively clear, as opposed to the normal bags used to dispose of asbestos

    containing material, and also that the contents of the bag matched the materials APC' s workers

    claimed to have disposed of. After rejecting APC' s arguments, the IAJ upheld the citation in its

    entirety in the proposed decision and order.

                 APC   appealed   this   proposed   decision   and order     to the Board.   The Board denied APC' s


    petition for review and adopted the proposed decision and order as its own order.




     leave the work ,area and remove their clothing in violation of WAC 296- 62- 07719( 3)( b)( iii);
     failed to supply workers the proper positive air pressure HEPA respirators in violation of WAC
     296- 62- 07715( 4)( a)( ii); failed to employ an asbestos trained competent person on site in
     violation of      WAC 296 -62- 07728( 1);       and failed to perform and initial exposure assessment or
     daily monitoring in violation of WAC 296- 62- 07709( 3)( a)( ii) and ( c)( i).

     3 The Board record is partially sequentially paginated, but this pagination does not include the
     hearing transcripts and exhibits. Consequently, we cite to testimony from the hearing by
     transcript date and page number and cite to exhibits solely by hearing exhibit number.

                                                                   5
No. 43104 -1 - II


         APC then appealed the Board' s order to the superior court, which reversed the order and


vacated     the   citation   in its entirety.         The superior court determined that the regulations the


Department cited APC for violating only applied if APC intended to perform asbestos abatement

work.    The superior court determined that APC had no such intent and that it had taken steps to


ensure   it did   not   do any    asbestos abatement work.            The superior court also determined that the


Department could not show the employees were exposed to asbestos because it could not show

the samples tested for asbestos were from the insulation the employees had handled.

          The Department appeals, asking us to reverse the superior court and reinstate the Board' s

order.



                                                          ANALYSIS


          The legislature     enacted       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. "'       Adkins      v.   Aluminum Co., 110 Wn.2d 128, 146, 750 P. 2d 1257, 756 P.2d 142


 1988) (    quoting      RCW          49. 17. 010).     Under    WISHA,       the    Department    both promulgates


administrative rules to effectuate WISHA' s aim of ensuring workplace safety and enforces these

regulations through its power to impose civil penalties and to request the prosecuting attorney to

commence criminal prosecutions.                 RCW 49. 17. 040, . 180, . 190.


           RCW 49. 17. 180 divides              civil   violations   of   WISHA, or regulations the Department


promulgates under         WISHA' s authority, into three             categories:    willful or repeat, serious, and not



 serious.   RCW 49. 17. 180( 1), (        2), ( 3).   A serious violation occurs


           in a workplace if there is a substantial probability that death or serious physical
           harm could result from a condition which exists, or from one or more practices,
           means, methods, operations, or processes which have been adopted or are in use




                                                                E
No. 43104 -1 - II


         in such workplace, unless the employer did not, and could not with the exercise of
         reasonable diligence, know of the presence of the violation.


RCW 49. 17. 180( 6).          To     prove   a   serious       regulatory   violation    under   RCW 49. 17. 180( 6), the


Department       must show      that. ( 1)   the   regulation applies, (      2)   a   regulatory   violation occurred, (   3)


employees were exposed to the regulatory violation, (4) the employer knew or could have known

of the regulatory violation with reasonable diligence, .and ( 5) there is a substantial probability the

violation could result       in death   or serious physical            harm Wash. Cedar &        Supply Co., Inc. v. Dep' t

of Labor & Indus., 119 Wn.             App.      906, 914, 83 P. 3d 1012 ( 2004) (          quoting D.A. Collins Constr.

Co. v. Sec' y ofLabor, 117 F.3d 691, 694 ( 2d Cir. 1997).

A.       Standard of Review


         We review 'a decision by the Board directly based on the record before it when it made

the decision.      J. Dunn Nw., Inc.
                    E.                           v.   Dep' t    of Labor & Indus.,       139 Wn. App. 35, 42, 156 P. 3d

250 ( 2007). In that       review, "[   t]he findings of the board or the hearing examiner where the board

has denied a petition or petitions for review with respect to questions of fact, if supported by

substantial_ evidence         on _the    record _considered - as          _ a- whole, _shall _beconclusive."          RCW__


49: 17. 150( 1).       Substantial   evidence      is   evidence "     sufficient to. persuade a fair -
                                                                                                      minded person of


the truth   of   the   matter asserted."     Katare       v.   Katare, 175 Wn.2d 23, 35, 283 P. 3d 546 ( 2012),         cert.




denied, 133 S. Ct. 889, 184 L. Ed. 2d 661 ( 2013). If we determine substantial evidence supports


the findings of fact, we then look to whether the findings support the Board' s conclusions of law.

J.E. Dunn, 139 Wn. App. at 42.

         We review de novo the interpretation of a statute or regulation. Roller v. Dep' t ofLabor

     Indus., 128 Wn.        App.     922, 926, 117 P. 3d 385 ( 2005) ( quoting Cobra                 Roofing   Serv., Inc. v.


Dep' t   of Labor & Indus., 122 Wn.                App.    402, 409, 97 P. 3d 17 ( 2004)).          We review the Board' s



                                                                   7
No. 43104 -1 - II



interpretation of a statute or regulation under an error of law standard. Roller, 128 Wn. App. at

926 ( quoting Cobra       Roofing, 122       Wn.   App.   at   409). Under this standard, we may substitute our


interpretation for the Board'       s   if   we   determine the Board     erred.   Roller, 128 Wn. App. at 926

 quoting Cobra Roofing, 122 Wn. App. at 409).

B.        APC violated the cited regulations in chapters 296 -62 and 296 -65 WAC

          The Department cited APC for violating several WAC regulations governing asbestos

work, and the Board affirmed the citation in its entirety. APC challenges ( 1) the Department' s

showing on the first element of a serious violation by claiming that the asbestos related

regulations did not apply because APC did not intend to perform asbestos abatement work and
relied on   TransAlta' s   assurances of an asbestos -free work site; (        2) the Department' s showing on

the fourth element of a serious violation by claiming APC had no knowledge of the presence of

asbestos at the site; and ( 3) the Department' s showing on the fifth element of a serious violation

by claiming the Department could not show serious physical harm or death could result from the

incident because the Department could not. show the regulatory violation exposed the workers to

asbestos.     See Wash. Cedar, 119 Wn. App. at 914 ( discussing the five elements of a serious

violation).    AFC' s arguments regarding the first element find no support in the text of the

regulations at issue and controlling case law requires us to reject the arguments it makes with

respect   to the fourth   and   fifth   elements.
No. 43104 -1 - II


         1.    APC' s intent to avoid asbestos abatement work and its reliance on Ortis' s statement


that no asbestos was present in the work site did not render the requirements of WAC chapters


296 -62 and 296 -
                65 inapplicable to AFC' s work.


         APC argues that its intention to avoid asbestos abatement work and the steps it took to


ensure it performed no such work rendered the WAC provisions governing asbestos abatement

work inapplicable.          It cites to its contract with TransAlta, which states that it will not perform


asbestos work, its supervisor' s conversation with Ortis about the absence of asbestos at the work


site, and     the job safety    analysis   it did   with     TransAlta in     support of   these   contentions.   Although


APC did make efforts to ensure that its work site contained no asbestos, and did rely on

TransAlta' s assurance of an asbestos free work site, it in fact performed class I asbestos work,


and   its discharge       of   its   contractual    duties      constituted    an   asbestos   abatement    project.   The


regulations applied regardless of APC' s intent or reliance on TransAlta' s assurances.


                    i. APC' s intent to avoid asbestos work does not make the regulations

inapplicable


         We interpret agency regulations in the same manner we interpret statutes. Potelco, Inc. v.

Dep' t   of Labor & Indus., 166 Wn.             App.       647, 653, 272 P. 3d 262 ( 2012).           We attempt to give


effect   to the promulgating agency'           s    intent   by discerning      the   regulation' s plain   meaning.   See


Dep' t   of Ecology    v.   Campbell & Gwinn, LLC, 146 Wn.2d 1, 9 - 12, 43 P. 3d 4 ( 2002). We discern


the regulation' s plain meaning by examining its plain text as well as any related regulations. See

Campbell &        Gwinn, 146 Wn.2d at 10 -12. If the regulation is ambiguous after this plain meaning

analysis, we      apply   canons of construction           in   order   to interpret the   regulation.   See Jongeward v.


BNSFRy. Co., 174 Wn.2d 586, 600, 278 P. 3d 157 ( 2012).



                                                                  0
No. 43104 -1 - II


           The plain text of the regulations at issue provides no support to APC' s argument that the


regulations did not apply to its actions. Each regulation, by its text, applies where the individual

performs class I asbestos work or an asbestos abatement project, regardless of the employer' s


intent.     Further, the Department has stated its intent to regulate all workplace exposure to


asbestos.     WAC 296 -62- 07701( 1) ( "        WAC 296 -62 -07701 through 296 -62 -07753 applies to all


occupational exposures to asbestos in all industries covered by chapter 49. 17 and chapter 49.26

RCW. "). Exposure is           exposure,   intentional    or not.   We must give effect to the plain meaning of

the   statute and     the   purpose of   the regulatory   structure expressed   by   the WACs. This requires us


to reject APC' s argument.


           Even if we accepted APC' s argument that the omission of any type of intent element

from the regulations at issue left them ambiguous, and thus susceptible to construction, several

canons of construction require us to reject the reading offered by APC.

           First, WISHA is a remedial statute, and we construe both the statute itself and any

regulations promulgated under its authority liberally. Adkins, 110 Wn.2d at 146 ( quoting RCW

49. 17. 010).    WISHA aims to secure a " safe and healthful" work environment for all Washington

workers.      RCW 49. 17. 010.           Reading these regulations to apply regardless of employer intent

furthers WISHA' s goal by prompting employers to guard against mistakes in identifying

asbestos containing material, as happened here.

           Second, the Department has expertise with WISHA and the regulations at issue. We give

  substantial weight" to the Department' s interpretation of regulations with which it has expertise

and will uphold                                it
                       that interpretation if "`    reflects a plausible construction of the language of the


 statute   and   is   not   contrary to the legislative intent. "'       Cobra Roofing, 122 Wn. App. at 409



                                                             10
No. 43104 -1 - II



                                                                  of Soc. &    Health Servs.,    82 Wn. App. 495, 518,
 quoting Seatome Convalescent Ctr.                  v.   Dep' t

919 P. 2d 602 ( 1996)).            The Department reads the omission of an intent element in these

regulations   to    mean       that there is   no    such    element.       This is a plausible interpretation of the


regulations and     does       not run counter      to the legislative intent behind WISHA.             Our deference to


the Department requires us to adopt its plausible interpretation of these regulations.

        Third, APC        asks us    to determine that        a serious violation must      be   willful.   The legislature


expressly made willful WISHA violations distinct from serious WISHA violations, providing

greater penalties        for   willful    violations.      RCW 49. 17. 180( 1), (     2).   We find no definition for


 willful" in the statutes or regulations at issue and therefore give the term its ordinary dictionary

meaning. State      v.   Gonzalez, 168 Wn.2d 256, 263, 226 P. 3d 131 ( 2010). " Willful" is defined as


 2:   done   deliberately:        not accidental or without purpose:               INTENTIONAL."      WEBsTER' s THIRD


NEW INTERNATIONAL DICTIONARY 2617 ( 1966).                              APC' s argument, that its intent mattered as to


whether it committed a serious violation, thus asks us to hold that the Department must prove a

willful violation    in    order   to    prove a serious one.           This argument asks us to conflate serious and


willful violations and render portions of RCW 49. 17. 180( 1) superfluous, which we decline to do.

Jongeward, 174 Wn.2d at 601.


         Finally, the legislature has specifically recognized the dangers posed by asbestos and

required   the Department to             reduce   that threat      under    WISHA.     RCW 49. 26. 010, . 140.      APC' s


interpretation allows companies to easily evade regulations governing asbestos abatement

projects by ignoring their possible existence. This is a strained and absurd reading of regulations

promulgated to give effect to the legislature' s concern about workplace asbestos exposure, and


 we avoid such readings. See City ofSeattle v. Fuller, 177 Wn.2d 263, 270, 300 P. 3d 340 ( 2013).



                                                                   11
No. 43104 -1 - II


         With our rejection of APC' s intent argument, substantial evidence supports the Board' s

conclusion that the regulations applied. The WAC requires employers to assume that the type of

material at issue here, thermal system insulation present in a building constructed before 1980,

contains asbestos unless          the    employer rebuts        this   presumption.     WAC 296 -62 -07703 ( definition


of presumed asbestos         containing       material and asbestos) .        4 Removal of thermal system insulation

is considered class I asbestos work, and its removal is, by definition, an asbestos project. WAC

296 -62 -07703 ( definition             of   class   I   asbestos      work);   WAC      296- 62- 07722( 3)(   a) ( "   Class   I


 asbestos]   work must       be   considered an asbestos project. ").               An asbestos project involving three

or more square or linear feet of material is an asbestos abatement project, and undisputed

testimony indicated that AFC' s employees removed three or more square feet of thermal system

insulation. WAC 296 -62 -07703 ( definition                 of an asbestos abatement project).         The regulations at


issue applied to APC' s actions.


                    ii. Any reliance on Ortis' s statement that the work area had no asbestos does

not render the regulations inapplicable.


         As APC notes, WAC 296- 62- 07721( 1)( c)( ii) required TransAlta to perform a good faith

inspection of the work site to determine the presence of asbestos before soliciting subcontracting

bids. TransAlta could avoid this good faith inspection if its agent, Ortis, was " reasonably certain

that   asbestos     will   not   be disturbed        by   the   project"     or "   assume[ d] that the suspect material


contain[ ed]   asbestos      and        handl[ ed] the    material      in   accordance"    with chapter 296 -62 WAC.


WAC 296- 62- 07721( 1)(           c)(   ii)(B).   TransAlta was also required by WAC 296 -62 -07721 to give



4
    Ignoring this presumption could itself be considered " willful" but the Department has not made
this argument.



                                                                  12
No. 43104 -1 - II



contractors a written statement either of the reasonable certainty of nondisturbance of asbestos or

of assumption of the presence of asbestos if a good faith inspection was not carried out.


          APC had a duty to treat the thermal system insulation it contracted to remove as asbestos

containing material unless it rebutted the presumption that the insulation contained asbestos.

WAC 296 -62 -07703 ( definition               of "[ p] resumed     asbestos -containing      material "), -     07721( 1)( b).


This                             from TransAlta' s         duty   to   perform   a   good   faith   analysis.     See RCW
         duty   existed apart




49. 17. 180( 6) (   employers must exercise reasonable diligence to learn of regulatory violations);

WAC 296- 62- 07721( 1)( b).


           WAC 296 -62- 07721( 3)            provides two methods for rebutting the presumption that the

insulation      contained asbestos;        both   require analytical    testing. See WAC 296- 62- 07721( 3)( b)( i),

 ii).   By enumerating only these two methods, the legislature excluded the good faith inspection

by the owner under WAC 296- 62- 07721( 1)( c)( ii) and the owner' s statement. that asbestos will

not be disturbed under WAC 296- 62- 07721( 1)( c)( ii)(B) as a means of rebutting the presumption

that thermal system insulation in a building constructed before 1980 contains asbestos. See State

v.   Ortega, 177 Wn.2d 116, 124, 297 P. 3d 57 ( 2013) ( "`                 to express or include one thing implies

the     exclusion of   the   other. "') (   quoting BLACK' S LAw DICTIONARY 661 ( 9th                 ed.   2009)).    Ortis' s


statement thus could not relieve APC of its duty to either assume the insulation contained

asbestos or      demonstrate that it did          not.   Since APC did not rebut the presumption under WAC


296- 62- 07721( 3)( b)( i)     or ( ii),   it had a duty to treat the insulation as asbestos containing material

and comply with the regulations governing class I asbestos work and asbestos abatement

projects. APC failed to do so.




                                                              13
No. 43104 -1 - II


        2. APC had actual or constructive knowledge that its workers performed work on an

asbestos abatement project without complying with the regulations found in chapters 296-

62 and 296 -65 WAC.


        Next, APC urges us to hold that it had no knowledge that its workers did or would

encounter    asbestos    during    the     work   on preheaters       11   and    12.    The Department accepts this


framing of the issue and claims that APC knew or could have known through reasonable
diligence that the workers would encounter asbestos.


        To establish a serious violation, RCW 49. 17. 180( 6) requires the Department to show that

the employer knew, or could have known through the exercise of reasonable diligence, of a

regulatory   violation.    See,   e. g.,   Erection Co., Inc.   v.   Dep' t   of Labor & Indus.,      160 Wn. App. 194, ,

203, 248 P. 3d 1085,       review    denied, 171 Wn.2d 1033, 251 P. 3d 664 ( 2011); Wash. Cedar, 119


Wn.   App.   at   914, 916.    The Board made no explicit findings regarding APC' s knowledge of a

violation   or    its ability to know      of a violation with reasonable          diligence.     APC contends that the


failure to make these findings requires reversal, citing state and federal cases concerning a lack

of administrative fact finding.

        Under RCW 34. 05. 562( 2)( a) the appropriate response to the absence of findings is not

dismissal, but      remand    for the Board to      make   the necessary factual determinations.                However,


where the evidence is uncontroverted, we are in as good a position to find facts as the lower

tribunal and any       remand     for the entry    of   findings     of   fact   would   be   a useless act.   Cogswell v.


 Cogswell, 50 Wn.2d 597, 601 - 02, 313 P. 2d 364 ( 1957).                     APC' s appeal presents a case where a


remand would be a useless act.




                                                            14
No. 43104 -1 - II



          The principle that ignorance of the law is no defense applies whether the law be a statute

or a   duly   promulgated and published regulation."              United States   v.   Int' l Minerals &   Chem. Corp.,

402    U. S. 558, 563, 91 S. Ct. 1697, 29 L. Ed. 2d 178 ( 1971).                       We may apply this principle,

especially when the law imposes a duty of investigation. Cf.Samuelson v. Cmty. Coll. Dist. No.

2, 75 Wn.       App.    340, 347 -48, 877 P.2d 734 ( 1994).              RCW 49. 17. 180( 6),        by requiring that

employers exercise reasonable diligence to learn of regulatory violations, imposes a duty of

investigation.


         Because we charge APC. with knowledge of the WAC, we presume it knew that the

preheater project was class I asbestos work and an asbestos abatement project, given the volume


of presumed asbestos          containing insulation involved. We also presume that APC understood it


needed to comply with ' the WAC provisions governing this work unless it rebutted the

presumption      that the insulation      contained asbestos.         Given this knowledge, and APC' s duty to

exercise reasonable      diligence to know        of   regulatory   violations under     RCW 49. 17. 180( 6), we find


that APC       could   have known    of   these   violations with reasonable           diligence.   APC simply would

have needed to see its employees performing the work to know they were not using respirators,

negative pressure enclosures, regulated areas, HEPA vacuum decontamination procedures, or

exposure      monitoring   as required     by   chapters    296 -62   and       65 WAC.
                                                                            296 -              See Erection Co., 160


Wn. App. at 206 -07 ( employer could know of readily apparent violations in work area with
reasonable      diligence).    A simple check of APL' s files would show that APC was not a certified


asbestos contractor, that its employees were not certified asbestos workers, and that APC did not

employ a competent person within the meaning of WAC 296 -62 -07703 for the preheater work.

 Given this finding, we affirm the Board' s conclusion that APC committed serious violations



                                                             15
No. 43104 -1 - II



because we find that APC could have, with reasonable diligence, known of the regulatory

violations.



         3.    APC' s violations could have resulted in death or serious injury.

         Finally, APC challenges the showing the Department made with respect to whether its

violation could have resulted in death or serious physical injury, the fifth element the Department

must prove to demonstrate a serious violation. APC contends that the Department failed to show

its employees had any exposure to asbestos because, it claims, the Department cannot trace the

samples it took, and which tested positive for asbestos, to the insulation APC' s employees

removed       from the   preheaters.         APC also maintains that, even assuming the employees had

contact with asbestos, their limited exposure carried no risk of death or substantial harm.

         We have adopted the majority federal interpretation of the language in RCW

49. 17. 180( 6) requiring      a "   substantial probability that death or serious physical harm could

result ".     Lee Cook   Trucking & Logging          v.   Dep' t   of Labor & Indus.,         109 Wn. App. 471., 478 -82,

36 P. 3d 558 ( 2001).      Under Lee Cook, if the Department shows that death or serious physical

injury could result from a regulatory violation, the Department has made the necessary showing

for the fifth    element of    its   case.   Lee Cook, 109 Wn.            App.   at   482.   Thus, "[ i]f the harm that the


regulation was intended to prevent is death or serious physical injury, then its violation is serious

per   se."     Lee Cook, 109 Wn.             App.   at    479 ( quoting California Stevedore &                 Ballast Co. v.


Occupational                     Health Review Comm'                      517 F. 2d 986,       988   n. l   ( 9th Cir. 1975))
                    Safety &                                         n,




 emphasis omitted) ( internal quotations omitted).                   We apply this standard because

              w]here violation of a regulation renders an accident resulting in death or serious
             injury possible, however, even if not probable, [ the legislature] could not have
             intended to encourage employers to guess at the probability of an accident in



                                                               Wei
No. 43104 -1 - II



          deciding whether to obey the regulation. When human life or limb is at stake, any
          violation of a regulation is serious.


Lee Cook, 109 Wn.         App.      at   478 -79 ( quoting California Stevedore & Ballast, 517 F.2d at 988)


 emphasis omitted).



          As the Department points out, under Lee Cook, it did not need to show APL' s workers in

fact had    exposure      to      asbestos   to   show a     serious violation.                Undisputed testimony before the

Board indicated that asbestos exposure can result in " lung disease, asbestosis, inflammation of

the   pleura, mesothelioma, [ and]             cancers of     the   lung" and that these conditions " ultimately can

result   in death."       BR ( May 17, 2010 Transcript)                         at   102, 114.        APC allowed its workers to


perform an asbestos abatement project without complying with the regulations promulgated to

protect   its   workers      from these dangers.         The Board' s findings support its conclusion that APC


committed serious         violations.        Accord Sec 'y of Labor                  v.   Trinity   Indus., Inc., 504 F. 3d 397, 401


 3d Cir. 2007) ( " Given            that the violations made it possible that the workers could unwittingly

stumble into large amounts of asbestos without adequate protection, there was no need to show


 the   contractor' s]   employees suffered          any actual exposure to _
                                                                           asbestos,                      much   less ... `   significant _



                                                                       5
exposure "'     in   order   to   show a serious violation).                We affirm the Board' s decision based on our


holding in Lee Cook.

          APC argues also that " isolated" exposure does not lead to a " substantial probability of

death    or serious physical             harm."   Br.   of   Resp' t       at   47.       In support, APC cites decisions under


 WISHA.and the Occupational Safety and Health Act (OSHA) that hold that isolated exposure to

 asbestos cannot constitute               a serious violation.         Each of these cases predates Lee Cook, which


 5
     Because WISHA        parallels       the Occupational      Safety          and       Health Act (OSHA),      we may look to
 federal cases interpreting OSHA as persuasive authority. Lee Cook, 109 Wn. App. at 478.


                                                                    17
    No. 43104 -1 - II



    overruled       their reasoning.            APC cannot rely on them to contest the fifth element of the

    Department'           s   case.     So long as exposure to asbestos could lead to serious physical injury or
                                                                                                                 6
    death,       and unchallenged         testimony indicates   that it   could, a serious violation occurred.




                                                             CONCLUSION


                 We reverse the superior court' s decision and reinstate the Board' s order affirming APC' s

    citation for violations of regulations governing asbestos related work.

                 A majority of the panel having determined that this opinion will not be printed in the

    Washington Appellate Reports, but will be filed for public record in accordance with RCW

    2.06.040, it is so ordered.




                                                                      Br RGE;      J

    We concur:
                                    f
                                r



         Ai _'   AR, J.
3
                                            J




    jJOHANSON, A.C.J. '
     I
    U




     6
          Scientific          research   has,   as yet, failed to discover any safe exposure level for asbestos.
     Hernandez        v.      Amcord, Inc.,     156 Cal. Rptr.3d 90, 94 ( Cal Ct. App. 2013).


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