                                                                                      COURT OF APPEALS
                                                                                          DIVISION II

                                                                                     20 III JUL - 8    AM 10: 10

                                                                                     STATE OF WASHINGTON


                                                                                                      JTY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

ACTIVE CONSTRUCTION INC.,                                                          No. 44918 -8 -II


                                       Appellant,


         v.




WASHINGTON STATE DEPARTMENT OF                                          UNPUBLISHED OPINION
LABOR AND INDUSTRIES,


                                       Respondent.


         JOHANSON, C. J. —            Active Construction, Inc. ( ACI) appeals a Department of Labor and


Industries ( L &I)   citation   for   a   Washington Industrial     Safety   and   Health Act    of   19731 ( WISHA)



safety   violation and   the resulting penalty        assessment.   Specifically, the citation alleged that ACI

failed to     comply   with     WAC        296- 155 -657,   which requires employers to provide cave -in


protective systems in trenches that are at least four feet deep when the trench is not made entirely

in   stable rock.    ACI   argues      that ( 1)   the evidence was insufficient to establish exposure to a


hazard, and ( 2) the evidence was insufficient to support the probability rating used to calculate

the penalty.    Because substantial evidence supports the industrial appeals judge' s ( IAJ) findings,

we affirm.




1
    Ch. 49. 17 RCW.
No. 44918 -8 -II



                                                                FACTS


                                                          I. INVESTIGATION


           On November 10, 2010, ACI was working on a project in Tacoma that involved replacing

an   existing      water   main,    fire hydrant,         and   street   improvements.            L &I safety and compliance

officer Scott Orla McMinimy was driving by the worksite when he noticed a man, later identified

as   ACI   employee        Timothy      Torresin,     digging    with a shovel          in   what appeared   to be   an




trench that     ran     from the   sidewalk out       into the    street.    Although Torresin was six feet five inches


tall, McMinimy could see only the man' s shoulders and head, and he appeared to be " walking

back   and   forth in the trench."           Clerk'   s   Papers ( CP)      at   197.     McMinimy drove around the block,

stopped in a parking lot near the work site, and started to photograph Torresin in the trench.

           McMinimy told Torresin to get out of the trench; spoke to the foreman, Mark Lloyd

Lillybridge;       and    took   several more photographs of              the trench.         At the end of the trench nearest

the sidewalk there was a shovel and a block that the new fire hydrant would rest on when it was

installed;    at   the street end of the trench             was a   large        valve.      McMinimy measured the trench' s

depth at the sidewalk end and photographed this measurement; the trench was five feet seven

inches     deep    at   this   point.   Although one side of the trench appeared to be cut into a step -like

ledge, the     other side was straight; neither side was                    significantly       sloped.   There was no shoring

inside the trench.


           Based on his visual inspection and his belief that the soil in the area was " predisturbed"

because of the trench' s proximity to a preexisting fire hydrant, a sidewalk, and a building,

2"
     Shoring" is        support placed             keep the sides from collapsing. Other protective
                                            inside trenches to
systems      include " benching," which involves cutting step -like ledges into the walls of the trench •
to   relieve pressure on         the side   walls, and "     sloping,"      which involves cutting the trench walls at an
angle.




                                                                    2
No. 44918 -8 -II



McMinimy             concluded           that the trench was        dug        into "     class   C"   soil rather     than into "    stable rock."




CP       at   148.       Because this type of soil required some type of cave -in protection system if the


trench was four feet or more deep, McMinimy issued a repeat serious infraction against ACI for

violating WAC 296 -155- 657( 1)( a). 3
                                                                   II. LITIGATION


              ACI     challenged          the   citation, and      the   matter proceeded                 to   a   hearing   before   an   IAJ. ACI


argued that L &I had failed to establish exposure to a hazard because the employee was not


working         a part of         the trench that       was more     than four           feet   deep   and      that L &I relied on speculation


to determine the duration of the alleged risk exposure.


              McMinimy,             L &I'     s only witness, testified as described above. McMinimy also submitted

10 photographs from the worksite, and he testified that this type of violation was a serious

violation because of the risk of collapse, which could result in hospitalization or death.

McMinimy also testified that he had calculated the base penalty of $5, 500 based on a " gravity"

score         of   24.       CP     at   153;    see      WAC 296- 900 -14010.                     He calculated the gravity score by
                                          4                                                                                  5
multiplying           a "   severity "        rate of   6(   on a scale of          1 to 6)     and a "   probability " rate of 4 ( on a scale




3
    ACI had a prior citation for the same type of violation.

4 " Severity" is             a measure of         the "   most serious         injury,      illness,     or    disease"   a violation is likely to
produce. WAC 296- 900 -14010.

5 "[
         P] robability rate" is a measure of the likelihood that an injury, illness, or disease will occur.
WAC 296- 900 - 14010.           When determining this rate, WISHA considers several factors, including
    1) the    frequency           and amount of exposure; (              2) the      number of employees exposed; (                   3) the number
of       times the hazard is identified in the                   workplace; (            4) the proximity of the worker to the hazard;
    5)    weather and other              working        conditions; (     6)    employee skill             level    and   training; ( 7) employee
awareness            of     the    hazard; ( 8) the        pace,   speed,       and       nature    of    the task; (     9) the use of personal
protective           equipment; and (            10)    other   mitigating          or   contributing          circumstances.     WAC 296 -900-
 14010.


                                                                                3
No. 44918 -8 -II


                6
of   1 to 6).       CP   at   152.    In determining the probability rate, McMinimy considered, among other

factors, "[ t] he depth         of    the trench"       and    the   employees       that were   exposed   to the hazard.     CP at


151.    After making adjustments for the company' s size and prior violations, the resulting penalty

was $ 6, 600. 7

            During cross -examination, McMinimy admitted that although he had attended a week-

long training        session on       trenching        and excavation,      he   was not a " certified     safety   professional,"   a




    certified   industrial hygienist,"            or a " competent person             for trenching   and excavation."        CP at


163.     He also stated that although he performed a visual test to determine the soil classification,

there    was no "      specific protocol" for " soils classification" and he did not conduct any " manual"

test   or   inspection.        CP     at    164 -65.    In addition, he testified that the slope ratio required would


differ depending on the soil classification; a one -to -one slope is required for class B soils, a one-

and- a- half        - one
                    to -      slope    is    required    for    class   C   soils.     McMinimy admitted that he had not

measured the slope, but he asserted that he did not take a measurement because it was obvious


that the sloping requirements were not met.

            ACI presented testimony from Torresin; Lillybridge; and ACI' s risk manager, Michael

Draper.         Torresin testified that he had measured the trench before he entered it, that the trench


was less than four feet deep, that he was working only at the valve end of the trench, that he was

only in the trench for about five minutes, and that he had been digging with a shovel at the valve

end of      the trench.        He further testified that the block at the sidewalk end of the trench had just

been "      drop[ ped]      in," that he did not know if the shovel at that end of the trench was the one he



6 See WAC 296- 900 -14010.

7
     See WAC 296- 900 -14015 ( base penalty                           adjustments).       Because ACI challenges only the
probability factor, we do not explain these adjustments in detail.

                                                                        4
No. 44918 -8 -II



had been using, that the trench was deeper at one end than it was the other, and that the sidewalk

end was approximately five feet seven inches deep. CP at 212.

          Lillybridge testified that he had learned about soil classifications in " trench classes" at his


shop and that he would classify the soil at this job site as class B soil because class C soil is

sandier, contained more gravel, and               this    soil was "   pretty firm, hard clay."   CP   at   230.   He also


opined that the soil was not " predisturbed soil" because it " hadn' t been touched for years, and

there [ were]    no     indications   of   ditches."     CP at 240. Lillybridge stated that if the soil was class B


soil, it needed to have " benching, shoring, or a one -by -one sloping system" if the trench was at

least four feet deep. CP at 247.

          As to the trench depth, Lillybridge testified that the                 area around   the, valve    was "[   r] ight


around    four feet," but he         admitted   he had    not measured     the trench depth himself. CP at 245.          He


also stated that although the trench' s bottom was level, the ground was higher towards the

sidewalk but that there was no reason for anyone to go to the sidewalk end of the trench.


          Draper testified that to classify the soil, there should be at least one visual and one

manual analysis.          He also testified that if the soil was class B soil, the slope would need to be

  o] ne   to    one."      CP   at   268.     In addition, he testified that the relevant, area for the depth


measurement was where the worker was working and that the risk exposure also depended on

where     the    employee       was    working.        He stated that he would have given this violation a


probability score of two or one depending on the length of time the employee was exposed to

any risk.


          The IAJ issued a proposed decision and order affirming the violation and corrective

notice    of redetermination.           The proposed decision and order described the testimony outlined

above and contained the following findings of fact:

                                                                 5
No. 44918 -8 -II



        2.         On November                 10,    2010, [ ACI],         failed to implement any protective
                   systems to protect employees in a trench at their excavation site in 6th
                   Avenue           and    N. Fife Street, Tacoma, WA 98409.                   The excavations were
                   not       in   areas made      entirely in    stable rock.        The excavation trenches were
                   deeper than 4 feet.
        3.         On June 27, 2008, [ ACI],                was cited by [ L &I] for a violation of [ WAC]
                   296 -155- 657( 1)( a)... .
        4.         On November 10, 2010, ...                    in the early morning hours a safety inspector
                   with [         L &I]   advised .[ACI],   through Mr. Lillybridge, the competent person
                   on site, that the excavation required a trench box to protect employees
                   entering the trench from the hazard of cave -ins. During the inspection,
                   Mr. Torresin an employee of [ ACI], was found in the trench, without the
                   trench box for protection, working on a valve. The probability an accident
                   could occur was very high rated 4 on a scale of 1 to 6 and could have
                   resulted in severe permanent disability or death for a severity rating of 6,
                   yielding          a    gravity rating   of   24.    The    employer       had             history
                                                                                                   an " average"


                   regarding             workplace    safety    and   its   good   faith   was "   fair."
                                                                                                       The company
                   employed               less than 100    workers. [        ACI],   intentionally disregarded their
                   employees'   safety when Mr. Toressin [ sic] entered the trench without
                   protection and performed work on the valve.
        5.         On November 10, 2010, [ ACI], committed a violation of WAC 296- 155 -
                   657( 1)(        a).     The violation was appropriately designated a repeat serious
                   violation.             The penalty, fo r the
                                                             violation ... is appropriately calculated at
                     6, 600.


CP at 353.


        After the Board of Industrial Insurance Appeals ( Board) denied review of the IAJ' s

proposed decision and order and the IAJ' s decision became the final order of the Board, ACI

appealed     the IAJ'    s    decision to the        superior court.         Finding substantial evidence in the record to

support      the IAJ'    s    findings, the          superior   court       affirmed   the   decision       and   entered   a $   6, 600


judgment against ACI. ACI appeals.


                                                                ANALYSIS


                              I. WISHA BURDEN OF PROOF AND STANDARD OF REVIEW


          Our 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


                                                                      6
No. 44918 -8 -I1


Washington."          RCW 49. 17. 010.            We     liberally     construe     WISHA to       effectuate       this   purpose.    BD


Roofing, Inc.       v.   Dep' t      of Labor & Indus., 139 Wn.              App.    98, 106, 161 P. 3d 387 ( 2007) ( quoting


Inland     Foundry Co.          v.   Dep' t   of Labor & Indus.,            106 Wn. App. 333, 336, 24 P. 3d 424 ( 2001)).

RCW 49. 17. 050( 2) requires L &I to adopt occupational health and safety standards that are at

least as effective as those promulgated by the United States Secretary of Labor under the federal

Occupational         Safety     and     Health Act     of   1970 ( OSHA), Title 29 U. S. C.             ch.   15.     Ch. 49. 17 RCW


 authorizes [       L &I] ` to    issue citations and assess penalties against an employer for on site safety

violations. '        BD Roofing, 139 Wn. App. at 106 ( quoting Erection Co. v. Dep' t of Labor &

Indus., 121. Wn.2d 513, 517, 852 P. 2d 288 ( 1993)).


           L &I bears the initial burden               of   proving     a    WISHA     violation.     Erection Co. v. Dep' t of

Labor & Indus.,          160 Wn. App. 194, 201, 248 P. 3d 1085, review denied, 171 Wn.2d 1033 ( 2011).

To prove a serious violation of a WISHA safety regulation, L &I has the burden of proving that

 1) the    regulation      in   question applies; (      2) the employer did not meet the standard' s requirements;


 3) the     employees         were      either   exposed     to   or   had    access   to the     violative    condition; (     4) '   the



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

violative condition ";               and ( 5) the violative condition created a substantial probability of death or

serious physical          harm.        BD   Roofing,     139 Wn.       App.    at   106 -07 ( quoting Wash. Cedar &               Supply

Co.   v.   Dep' t    of Labor &           Indus.,   119 Wn. App. 906, 914, 83 P. 3d 1012, review denied, 152

Wn.2d 1003 ( 2004)).


           WISHA         also governs         judicial   review of       the Board'    s   decisions.     RCW 49. 17. 140; RCW


 49. 17. 150( 1).        We   review such        decisions    directly,      based   on    the   record   before the agency.           J.E.




                                                                        7
No. 44918 -8 -II



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),

review   denied, 156 Wn.2d 1028 ( 2006)). "              We review findings of fact to determine whether they

are supported by substantial evidence and, if so, whether the findings support the conclusions of

law."     E. Dunn Nw., Inc., 139 Wn.
         J.                                         App.    at   42 ( citing Inland   Foundry Co., 106 Wn. App. at

340). " Substantial evidence is evidence ` in sufficient quantum to persuade a fair -
                                                                                    minded person

of   the truth   of   the declared          premise. '    E. Dunn Nw., Inc., 139 Wn.
                                                         J.                                      App.   at   43 ( quoting


Holland   v.   Boeing Co., 90 Wn.2d 384, 390 -91, 583 P. 2d 621 ( 1978)).

         We review the amount of a penalty for abuse of discretion. Danzer v. Dep' t of Labor &

Indus., 104 Wn. App. 307, 326, 16 P. 3d 35 ( 2000), review denied, 143 Wn.2d 1020 ( 2001).


Abuse of discretion occurs when the decision is arbitrary or rests on untenable grounds or

untenable reasons.          Danzer, 104 Wn.          App.   at   326.    A penalty determination based on relevant

factors and supported by substantial evidence is not arbitrary or based on untenable grounds.

Danzer, 104 Wn. App. at 327.

                                       II. SUFFICIENT EVIDENCE OF VIOLATION


         ACT argues that L &I failed to meet its burden to establish exposure to a hazard because it

did not prove that Torresin was working in an area of the trench that was at least: four feet deep.

We disagree.


         Although ACI' s evidence may have contradicted some of McMinimy' s testimony,

McMinimy' s testimony and his photographs support the IAJ' s finding that Torresin was working




                                                                  8
No. 44918 -8 -II



in an unprotected trench that was over four feet in depth.8 First, McMinimy measured the depth

at the sidewalk end of the trench as five feet seven inches deep and he photographed this

measurement.            Second, Torresin also testified that that end of the trench was approximately five

feet   seven       inches    deep. Third, although the testimony and the photographs also showed that the
                                                                                            9
ground    level      was     slightly lower     at   the   valve end of       the trench,       if the valve end of the trench was


less than four feet deep, it would be more than nineteen inches lower than the sidewalk end and

the    photographs          do   not show such a           steep   decline. Fourth, even if the valve end was not over


four feet deep, McMinimy testified that he had seen Torresin " walking back and forth in the
              10
trench. "          CP   at   197.     Thus, the finding that Torresin was in portions of the trench that were

more than four feet deep is supported by substantial evidence and this argument fails.

          ACI also appears to challenge McMinimy' s classifying the soil as class C soil.

Regardless of that classification, there is substantial evidence supporting a finding that ACI

failed to properly           protect    its   workers      from    a potential    hazard. Even if the IAJ relied on ACI' s


evidence that the soil type was class B, rather than class C, there was no shoring in the trench, at

least one wall was not benched, and the photographs clearly show that the trench walls were




8 Much of ACI' s argument hinges on whether Torresin' s or McMinimy' s testimony was more
credible or should carry more weight. For instance, ACI states, without citation to any authority,
 Weight of testimony to those who were present onsite and familiar with the trench' s actual
dimensions           should      be   given    deference."         Br.   of   Appellant    at    10.   We do not review the fact
finder'   s    credibility       or weigh     determinations. See Burnside            v.    Simpson Paper Co., 123 Wn.2d 93,
 108, 864 P. 2d 937 ( 1994).


9 There is no dispute that the bottom of the trench was level.

 1° ACI asserts that the evidence that Torresin was working only at the valve end of the trench
was uncontroverted.                 ACI is mistaken; McMinimy testified that he had seen Torresin " walking
back and forth" in the trench. CP at 197.
                                                                         9
No. 44918 -8 -II



essentially   straight and not sloped at a "[   o] ne to one" ratio, which is what ACI' s own witness


testified was required for class B soils. CP at 268. Accordingly, this argument also fails.

                                                III. PENALTY


        Finally,   ACI   argues   that the probability   score   was   incorrect because ( 1)   there was no



evidence that any employees entered the portion of the trench that was at least four feet deep;

and ( 2) even if there was such evidence, the exposure was brief. ACI argues that the probability

score should have been one rather than four. We disagree.

        As discussed above, the record supports findings that ( 1) the valve end of the trench was


at least four feet deep, and ( 2) McMinimy observed at least one employee walking back and

forth in the trench.     Accordingly, ACI' s assertion that there was no evidence that employees

were exposed to the risk of an unprotected trench has no merit.


        Furthermore, although the record shows that McMinimy observed Torresin in the trench

only for a short period of time, there is substantial evidence in the record that the exposure would

have been     more   significant   had McMinimy      not   intervened.      First, there was evidence that


Torresin had been in the trench before      McMinimy       arrived.    Second, it was clear that the hydrant


installation was not complete and completing the installation would have undoubtedly required

more   exposure.      Additionally, the exposure to the risk is just one of several factors that

contributed to the probability rating. Thus, ACI has not shown that the probability rating of four

was improper.




                                                     10
No. 44918 -8 -II



        We affirm the IAJ' s decision and order.


        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.




We concur:




                                                   11
