                                                                 FILED
                                                             OCTOBER 30, 2018
                                                         In the Office of the Clerk of Court
                                                        WA State Court of Appeals, Division III




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

WASTE CONNECTIONS OF                         )         No. 35612-4-III
WASHINGTON, INC., D/B/A                      )
LAKESIDE DISPOSAL & RECYCLING                )
COMPANY,                                     )
                                             )
                     Appellant,              )
                                             )
              v.                             )         PUBLISHED OPINION
                                             )
DEPARTMENT OF LABOR &                        )
INDUSTRIES and the BOARD OF                  )
INDUSTRIAL INSURANCE APPEALS,                )
                                             )
                     Respondents.            )

       LAWRENCE-BERREY, C.J. — RCW 49.17.140(1) requires an employer wishing to

appeal a workplace-safety citation to timely notify the director of the Department of

Labor and Industries. WAC 296-900-17005(2) permits an employer to notify the director

by mail, and “[t]he postmark is considered the submission date of a mailed request.”
No. 35612-4-III
Waste Connections v. Dep’t of Labor & Indus.


       Waste Connections of Washington, Inc. (Waste Connections) timely submitted its

notice of appeal by mail, but used insufficient postage. This resulted in the notice being

returned to Waste Connections. Then, after the deadline, Waste Connections resubmitted

its notice of appeal with sufficient postage.

       The primary question is whether “the submission date of a mailed request” implies

sufficient postage. We hold that it does. We affirm the superior court’s dismissal of

Waste Connections’ appeal.

                                           FACTS

       On February 9, 2015, the Department of Labor and Industries (Department) issued

a citation and notice of assessment to Waste Connections for three regulatory violations.

Waste Connections signed for the assessment on February 11. The citation specified

Waste Connections had 15 working days to appeal from the date of signing for the

citation. The parties agree the final date to appeal was March 5.

       Waste Connections desired to appeal the citation. On March 2, Waste Connections

addressed its notice of appeal to the Department, with directions that it be sent by

certified mail. A Waste Connections employee mistakenly placed first class postage on

the envelope and attempted to send the notice by certified mail. The envelope that

contained the notice was postmarked March 2.


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No. 35612-4-III
Waste Connections v. Dep’t of Labor & Indus.


      Because of insufficient postage, the postal service returned the notice to Waste

Connections on March 12. Waste Connections resubmitted the notice by certified mail.

The envelope that contained the resubmitted notice was postmarked March 13. The

Department received the notice on March 17 and deemed the appeal untimely.

      At Waste Connections’ request, the Department forwarded the appeal to the

Board of Industrial Insurance Appeals (BIAA). The BIAA judge (IAJ) held a

timeliness hearing. Waste Connections argued that its notice of appeal was timely under

RCW 49.17.140, as supplemented by the plain meaning of the Department’s own rule.

The IAJ disagreed and concluded that the appeal was not timely. The IAJ issued a

proposed decision and order with findings of fact and conclusions of law.

      Waste Connections filed a petition for review with the BIAA. In its petition,

Waste Connections reiterated its prior argument. In addition, Waste Connections argued

it “substantially complied” with the notice requirements, and that “good cause” permitted

the BIAA to consider the late filing. The BIAA denied Waste Connections’ petition and

adopted the IAJ’s proposed decision and order.1




      1
       The proposed decision and order did not address the substantial compliance and
good cause arguments.

                                            3
No. 35612-4-III
Waste Connections v. Dep’t of Labor & Indus.


      Waste Connections appealed to the Grant County Superior Court. It reiterated its

prior arguments. In denying Waste Connections’ appeal, the superior court reasoned:

              Notice is required to be accomplished in a manner reasonably
      calculated to give notice to the Director. In re Saltis, 94 Wash. 2d 889, 898,
      621 P.2d 716 (1980). Even if the mailing here could be said to comply with
      a literal reading of the WAC, the court should avoid such a reading because
      it would be contrary to this purpose.

Clerk’s Papers (CP) at 209. In addition, the superior court found that Waste

Connections had not sufficiently argued “substantial compliance” or “good cause.”

      Waste Connections timely appealed to this court.

                                       ANALYSIS

      SUBMISSION DATE OF A MAILED REQUEST

      Waste Connections does not contest the BIAA’s findings of fact. Rather, it argues

that the superior court erred in its construction of RCW 49.17.140(1) and WAC 296-900-

17005(2). We review the interpretation of regulations and statutes de novo. Cobra

Roofing Serv., Inc. v. Dep’t of Labor & Indus., 122 Wn. App. 402, 409, 97 P.3d 17

(2004), aff’d, 157 Wn.2d 90, 135 P.3d 913 (2006).

      The general rules of statutory interpretation are:




                                             4
No. 35612-4-III
Waste Connections v. Dep’t of Labor & Indus.


               “When interpreting a statute, the court’s fundamental objective is to
       ascertain and give effect to the legislature’s intent. We begin with the plain
       meaning of the statute. In doing so, we consider the text of the provision in
       question, the context of the statute in which the provision is found, related
       provisions, amendments to the provision, and the statutory scheme as a
       whole. If the meaning of the statute is plain on its face, then we must give
       effect to that meaning as an expression of legislative intent. If, after this
       inquiry, the statute remains ambiguous or unclear, it is appropriate to resort
       to aids of construction and legislative history.”

Courtney v. Wash. Utils. & Transp. Comm’n, 3 Wn. App. 2d 167, 177, 414 P.3d 598

(quoting Lenander v. Dep’t of Ret. Sys., 186 Wn.2d 393, 405, 377 P.3d 199 (2016)),

review denied, 191 Wn.2d 1002, 422 P.3d 911 (2018). These rules apply to

administrative rules equally as to statutes. Cannon v. Dep’t of Licensing, 147 Wn.2d 41,

56, 50 P.3d 627 (2002). “This court will avoid a literal reading of a provision if it would

result in unlikely, absurd, or strained consequences.” Id. at 57.

       RCW 49.17.140(1) sets forth a jurisdictional limitation for BIAA and the courts

for hearing an appeal of a WISHA2 citation:

       If after an inspection or investigation the director or the director’s
       authorized representative issues a citation . . . the department . . . shall
       notify the employer . . . of the penalty to be assessed under the authority of
       RCW 49.17.180 and shall state that the employer has fifteen working days
       within which to notify the director that the employer wishes to appeal the
       citation or assessment of penalty. If, within fifteen working days from the
       communication of the notice issued by the director the employer fails to
       notify the director that the employer intends to appeal the citation or

       2
           Washington Industrial Safety and Health Act of 1973, chapter 49.17 RCW.

                                              5
No. 35612-4-III
Waste Connections v. Dep’t of Labor & Indus.


       assessment penalty, . . . the citation and the assessment shall be deemed a
       final order of the department and not subject to review by any court or
       agency.

RCW 49.17.140(1) (emphasis added).

       The legislature authorized the Department director to promulgate rules to effect

chapter 49.17 RCW. See RCW 49.17.040. Pursuant to this authority, the Department

enacted WAC 296-900-17005, which explains how an employer or employee wishing to

appeal a workplace-safety citation notifies the Department.

       WAC 296-900-17005(2) permits an employer or employee to notify the

Department of an appeal by mail, fax, electronically, or by personal delivery. With

respect to notification by mail, the subsection provides: “The postmark is considered the

submission date of a mailed request.” Id.

       Both parties argue that the meaning of the rule is plain. Nonetheless, they reach

different results. The Department argues the rule requires the notice to be submitted or

mailed, and a notice cannot be submitted or mailed with insufficient postage. Waste

Connections argues the rule requires only that the postmarked date be within the appeal

period. Waste Connections’ argument ignores the rule’s requirement that the submission

be a “mailed request.”




                                             6
No. 35612-4-III
Waste Connections v. Dep’t of Labor & Indus.


       “Mail” means “to send postal matter by mail.” WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 1361 (1993). Postal matter is not sent by mail unless it has

sufficient postage. A person who places an envelope with insufficient postage in the mail

knows the envelope likely will be returned, and therefore not sent. We hold that a

submission is not “mailed” if the envelope has insufficient postage and is returned to the

sender.

       This holding is consistent with decisions that require proof of sufficient postage as

an element toward establishing an item was mailed. See, e.g., Lieb v. Webster, 30 Wn.2d

43, 47, 190 P.2d 701 (1948); Kaiser Alum. & Chem. Corp. v. Dep’t of Labor & Indus., 57

Wn. App. 886, 892, 790 P.2d 1254 (1990). This holding also comports with our

obligation to construe legislation in a manner that avoids an absurd result. It would be an

absurd result to construe a notice requirement satisfied when, because of the sender’s

mistake, the notice did not reach the recipient.

       EQUITY

       Waste Connections, citing court rules that permit time extensions for “good

cause,” argues that equitable principles compel allowing the appeal to proceed. We

disagree.




                                              7
No. 35612-4-111
Waste Connections v. Dep 't ofLabor & Indus.


       A court will not grant equitable relief in contravention of a statutory requirement.

Longview Fibre Co. v. Cowlitz County, 114 Wn.2d 691, 699, 790 P.2d 149 (1990). Here,

RCW 49 .17 .140( 1) prohibits the BIAA and courts from exercising jurisdiction to hear an

untimely WISHA appeal. We are without authority, through equity or artifice, to expand

our jurisdiction.

       Affirmed.




                                                  Lawrence-Berrey, C.J.


WE CONCUR:




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Siddoway, J.               1)



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