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                    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ADVANCE ENVIRONMENTAL INC,                                                        )   No. 74857-2-I

                                         Respondent,                             )
                                                                                 )    DIVISION ONE
                                         v.                                      )
                                                                                 )
DIRECTOR, WASHINGTON STATE                                                       )
DEPARTMENT OF LABOR AND                                                          )    UNPUBLISHED OPINION
INDUSTRIES,                                                                      )
                                         Appellant.                              )    FILED: July 3, 2017
__________________________________________________________________________________)

             MANN, J. —Airborne asbestos dust and particles are known to produce

irreversible lung damage and bronchogenic carcinoma. As a result, the State imposes

special requirements controlling asbestos removal. These include a requirement that if

removal disturbs asbestos fibers, asbestos containing materials may not be removed

without advance notice to the Department of Labor and Industries (Department).

             The Department issued a citation to Advance Environmental, Inc. (AEI) for

violating regulations adopted under the Asbestos Safety Act, chapter 49.26 RCW,

including a serious violation of WAC 296-65-020(2) which requires 10-day notice before

removing asbestos containing materials. AEI appealed the citation to the Board of

Industrial Insurance Appeals (Board). After reviewing the evidence, the Board affirmed
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the Department’s citation. AEI then petitioned for review by the superior court. The

superior court granted AEI’s petition and reversed the citation. The Department appeals

the superior court’s reversal of the citation for a serious violation of WAC 296-65-020(2).

Because the Board’s decision is supported by substantial evidence and not erroneous

as a maffer of law, we reverse the superior court and affirm the Board’s decision and

the Department’s citation.

                                         FACTS

       In October 2012, AEI removed vinyl flooring from two mobile homes that it

planned to demolish. The vinyl flooring contained asbestos, which releases asbestos

fibers when cut or torn. WAC 296-65-020 requires a person removing asbestos without

leaving it intact to notify the Department 10 days before beginning the removal. Before

it started demolition, AEI twice requested a waiver from the 10-day notice requirement.

The first waiver request was denied by a Department supervisor. A few days later,

Randy Gee, the owner of the contractor doing the demolition, called Department

inspector McClelland Davis and again asked for a waiver of the notice requirement.

After Davis advised Gee that the demolition did not qualify for a waiver, Gee responded

that the job had to proceed and concluded the call.

       Concerned that the demolition would proceed without the required notice, Davis

inspected the job site on October 19, 2012. When he arrived at the site, Davis found

Gee on a track hoe starting to demolish one of the two mobile homes. Davis asked Gee

if there had been asbestos removal. Gee responded yes. Davis was unable to enter

the mobile home being demolished because it was unstable. Davis was, however, able

to enter the second mobile home and discovered that part of the flooring in the bedroom

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 area had been removed in its entirety leaving only the floor joists. Based on his

experience, Davis believed it was unusual for someone to remove both the vinyl and

 underlying wood flooring during an asbestos removal. The normal process would be to

try and peel the vinyl flooring away from the underlying wood. Davis believed the only

way the vinyl and underlying floor would be removed would by cutting it out.

         On February 7, 2013, the Department cited AEI for a serious violation of WAC

296-65-020(2) which requires 10-day notice before removing asbestos containing

material.1 AEI appealed the citation to the Board. Consistent with RCW 51.52.104, an

evidentiary hearing was conducted by the Board’s industrial appeals judge. Davis

testified on behalf of the Department. AEI did not present any witnesses. At the

conclusion of the hearing, the industrial appeals judge issued a proposed decision and

order finding that the Department failed to prove that AEI was required to provide 10-

day notice for the removal of asbestos containing material. The Department filed a

petition for review of the appeals judge’s proposed decision to the Board. After review

of the record, the Board found that AEI’s “work was an asbestos project” and that it was

required to provide 10-day notice prior to abatement of the asbestos containing

material. The Board’s decision affirmed the entire citation.

        AEI appealed the Board’s decision to the superior court arguing that the order

was not supported by substantial evidence and that the Board improperly placed the


         1 The citation included three separate alleged violations: (1) a Repeat Serious violation of WAC

296-65-020(1) (failing to provide notice prior to asbestos removal) (Item 1—i); (2) a Serious violation of
WAC 296-65-020(2) (failing to provide notice 10 days in advance of the abatement work) (Item 2-1); and
(3) a General violation of WAC 296-842-14005 (maintaining a confidential copy of an employee’s medical
questionnaire). The Department subsequently reduced the penalty for Item 1-1 and issued a corrective
notice of redetermination on March 24, 2013. Only Item 2-1 (failing to provide 10-day notice prior to
abatement work) is at issue in this appeal.
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burden of proof on AEI. The superior court reversed stating only that the Board’s

decision was “[b]ased upon an error of law, and [n]ot supported by substantial

evidence.” The Department appeals the superior court’s order to the extent that it

reversed item 2-1: the citation for a serious violation of WAC 296-65-020(2).

                                         ANALYSIS

       The Department contends that the superior court erred in reversing the Board’s

decision. Because the Board’s decision was supported by substantial evidence and not

erroneous as a matter of law, we agree with the Department.



       The Asbestos Safety Act is enforced under the Washington Industrial Safety and

Health Act (WISHA). WISHA governs our review of the Board’s decision. RCW

49.17.150(1). “We review the Board’s decision based on the record that was before the

Board.” Potelco, Inc. v. Wash. Dep’t of Labor & Indus., 194 Wn. App. 428, 434, 377

P.3d 251 (2016). If the Board’s findings are supported by substantial evidence, then

they are conclusive. RCW49.17.150(1); Potelco, 194 Wn. App. at 434. “Substantial

evidence is evidence sufficient to persuade a fair-minded person of the truth of the

matter asserted.” Potelco, 194 Wn. App. at 434. We do not reweigh the evidence.

Instead, we view it in the light most favorable to the party that prevailed before the

Board—here, the Department. Potelco, 194 Wn. App. at 434.

      We review errors of law de novo. “We construe WISHA statutes and regulations

liberally to achieve their purpose of providing safe working conditions for workers in

Washington.” Frank Coluccio Constr. Co. v. Dep’t of Labor & Indus., 181 Wn. App. 25,

36, 329 P.3d 91(2014). We give substantial weight to an agency’s interpretation of

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 No. 74857-2-1/5


 statutes and regulations within its area of expertise. “But we retain ultimate

 responsibility for interpreting a regulation.” Frank Coluccio, 181 Wn. App. at 36.



         AEI argues that we should affirm the superior court’s decision because the

 Board’s decision is “not supported by substantial evidence, with respect to Findings of

 Fact 3 and          4~”2   We disagree.

         RCW 49.26.120(2) requires that “[t]he department shall require persons

undertaking asbestos projects to provide written notice to the department before the

commencement of the project.” The Department’s regulations further define the notice

requirements. WAC 296-65-120 requires individuals to provide 10-day notice of

asbestos projects to ensure safe removal:

                   (1) Before any person or individual begins an asbestos project
         as defined in WAC 296-62-07722 or 296-65-003 involving more than forty-
         eight square feet. of asbestos containing material, written notification
                                     .


         must be provided to the department.

                   (2) Notices must be received by the department no later than ten
         days prior to the start of the project. Notices must be sent directly to the
         department of labor and industries regional office having jurisdiction on the
         project.

        An “asbestos project” includes the demolition of any building “releasing or likely

to release asbestos fibers into the air.” RCW49.26.100(2). Department regulations

further define an asbestos project to include projects where asbestos containing

          2 Relying on RAP 10.3(h), the Department argues that because AEI is challenging the Board’s

administrative order it was required to assign error to the Board’s decision on appeal, and because it
failed to do so, the Board’s findings are verities on appeal. While RAP 10.4(h) is specific to appeals
brought under the administrative procedures act, chapter 34.05 RCW, we agree that the same rule should
apply to challenges brought under WISHA. However, while AEI’s brief did not include a separate
assignment of error, it made clear in its briefing that it was assigning error to the Board’s findings of fact 3
and 4. In its request for relief AEI asks this court to “affirm the Superior Court’s determination that
Citation 2-1 .   .is not supported by substantial evidence, with respect to Findings of Fact 3 and 4.”
                     .




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materials “do not stay intact (including removal of vinyl asbestos floor (VAT) or roofing

materials by mechanical methods such as chipping, grinding, or sanding.” WAC 296-

62-07722(3)(b)(i)(B). An exception to this requirement is where the asbestos containing

material is removed “intact” because no would be exposed to asbestos fibers. WAC

296-62-07722(3)(b)(ii)(A).

       The Department concluded that AEI’s work removing the asbestos containing

vinyl flooring constituted an “asbestos project” and thus notice was required under WAC

296-65-120. AEI maintained that the flooring was removed intact and thus was exempt

from the notice requirements. The Board agreed with the Department.

A.     Substantial Evidence Supports Findini of Fact 3

       The Board’s finding of fact 3 concluded that the project was an “asbestos project”

because AEI removed the asbestos containing flooring using mechanical methods

without the required notice:

       3. On October 18, 2012, [AEI] removed flooring and window putty from the
       two mobile homes at 3611”l” Street NE, Auburn, WA 98002. The work
       involved the removal for over 10 linear feet and/or 48 square feet of
       asbestos containing material. The work was an asbestos project because
       mechanical methods of removal of the asbestos containing materials were
       used. Because the work was an asbestos project, [AEI] had to provide 10
       days written notice to the Department before beginning its work removing
       the asbestos containing material.

       The Department’s witness, Davis, testified that it would have been impossible to

remove the sheet vinyl and the plywood underlayment it was glued to without cutting

through the vinyl. Davis explained that “intact” removal usually related only to removal

of square pieces of floor tile that can be easily popped off without disturbing the

asbestos material in the matrix. Davis explained that because sheet vinyl flooring is


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No. 74857-2-1/7


glued down, it cannot be peeled away from the underlying wood without leaving a mess

and disturbing the matrix. Davis believed that AEI had cut both the vinyl and underlying

wood flooring out because he saw clean edges adjacent to the walls. Davis concluded

that AEI cut the floor around the edges with a saw and then cut the flooring into small

sections to fit through the doorway. Davis testified that in 29 years of experience as a

field inspector and industrial hygienist, he had never seen a sheet vinyl floor removed

like this. Davis opined that removing the flooring by cutting it would have released

asbestos fibers.

       Davis further explained that AEI twice asked the Department for a waiver of the

10-day notice requirement. After Davis denied the second request, Gee told Davis that

the work would commence anyway. Davis testified that he had never had a situation

where a contractor would call seeking a waiver if they intended on doing an intact

removal.

      AEI also contends that Davis’s testimony was contradictory and that he admitted

that it was possible to remove the vinyl and underlayment intact. This argument fails.

Davis was asked on cross-examination whether, hypothetically, someone could slice

the sheet vinyl along a seam, and then use a “Burke Bar” (a crowbar-like tool) to get

underneath the underlying plywood, pry it up, and remove the full boards out the door.

Although Davis conceded that it may have been possible to do this he did not believe

that this is what happened. Davis believed the flooring had not been removed intact

because he saw clean edges around the floor, and from this he inferred that the floor

was cut into pieces and carried out. At best, the question posed to Davis during cross

examination was a hypothetical question; it was not evidence of how AEI removed the

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No. 74857-2-1/8


flooring. Hypothetical questions are not evidence unless the party offering the

hypothetical establishes the necessary facts to support them. Peterson v. State, 100

Wn.2d 421, 442, 671 P.2d 230 (1983). AEI failed to offer any evidence in support of its

hypothetical.

       AEI also contends that Davis was unqualified to testify about how the floor was

removed. This argument also fails. While Davis admitted he did not have construction

or demolition experience, he confirmed that he had held a masters of science degree in

public health and industrial hygiene, had 29 years of service as an industrial hygienist

with the Department, and had performed over 2000 asbestos inspections. On appeal,

we do not reweigh the evidence or assess credibility. Potelco, 194 Wn. App. at 434.

Rather, we ask if substantial evidence supported the finding. If it does, then our

analysis ends.

       Viewed in the light most favorable to the Department, the evidence supports the

Board’s finding of fact 3: AEI used mechanical methods to cut the floor into pieces to

remove it. Removing the flooring like this made the project an “asbestos project.” AEI

was required to notify the Department 10 days before starting. See WAC 296-65-020.

B.     Substantial Evidence Supports Finding of Fact 4

       The Board’s finding of fact 4 concluded:

      4. A substantial probability existed that the [AEI] employees exposed to
      the hazard described in Items No. 1-1 and 2-1 would be injured, and that if
      harm resulted, it would be serious physical harm, including the possibility
      of cancer, long-term disease, and suffering.

       Davis, after describing his education and training as an industrial hygienist, his

29 years of experience with the Department as a field inspector, then supervisor of


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No. 74857-2-1/9


hygiene compliance inspectors, and his specific training with asbestos, explained the

dangers of asbestos exposure:

        [Davis]: Asbestos is a known carcinogen and has a history of people being
        exposed to it with an unknown amount and causing cancer, causing
        what’s known as mesothelioma, a form of lung cancer, and at higher
        doses, asbestosis, a rather debilitating disease where you basically
        suffocate.

        [Department’s Counsel]: Mr. Davis, is there any known save level of
        asbestos exposure?
        [Davis]: None that I’ve heard of and none that I’ve found in any literature.

        Viewed in the light most favorable to the Department, substantial evidence

supports finding of fact 4: a substantial probability existed that AEI employees were

exposed to asbestos fibers during the flooring removal and could be seriously harmed.3

                                                       III

       AEI also argues that the Board committed an error of law by improperly shifting

the burden of proof from the Department to AEI. AEI bases its arguments primarily on a

statement in the Board’s decision noting:

       [AEI] maintains that the flooring was removed intact and therefore it had
       no obligation to notify the Department 10 days before the removal of
       [asbestos containing material. However, [AEI] did not present evidence of
       the manner in which the flooring was removed.

AEI contends this passage is evidence that the Board improperly shifted the burden of

proof. We disagree. Contrary to AEI’s contention, the Board applied the proper burden

of proof.

       As the Board explained in the opening paragraph of its decision: “In this order

we address the only contested issue of this appeal; whether the Department has met its


       ~ AEI’s appellate brief offers no substantive argument against finding of fact 4.

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No. 74857-2-1/10


burden of proof to establish that [AEI] committed the violations alleged in Citation and

Notice No. 316558741.” The Board later reiterated that: “fi]n a WISHA appeal, the

Department has the burden of proving the alleged violations and the correctness of the

assessed penalty.” The Board clearly understood the appropriate burden of proof.

         After reviewing the testimony from Davis, the only witness, the Board explained:

         The Department has proved that [AEI] failed to provide proper notice of an
         asbestos project. The eyewitness testimony of Mr. Davis is circumstantial
         evidence that shows that flooring containing [asbestos containing material]
         had been cut (mechanically removed) from the project location. The
         project involved over. 48 square feet of [asbestos containing material].
                                .   .


         Because this was not an intact removal, [AEI] was subject to notice
         requirements.

         Once the Department met its burden of proof, the Board then correctly shifted the

burden to AEI to rebut or present an affirmative defense. Other than its hypothetical

cross-examination, AEI presented no evidence. The Board then correctly concluded

that “[t]he Department has met its burden of proof to establish that [AEI] committed the

violations alleged in [the citation.].” The Board did not improperly shift the burden of

proof.

         We reverse the superior court’s decision ordering the Board to vacate Citation

Item 2-1. We affirm the Board and Item 2-1 in the Department’s October 3, 2014

Decision and Order regarding Corrective Notice of Redetermination No. 316558741.




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No. 74857-2-I/Il




                           ~L4i
WE CONCUR:




           ‘I




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