Superior Court of Pierce County. Superior Court Docket No. 91-2-12634-3. Date Filed In Superior Court: March 19, 1993. Superior Court Judge Signing: Karen Strombom.
Written By: Bridgewater, J, Concurred In By: Armstrong, J, Turner, J
BRIDGEWATER, J. -- William Dickson Company (the Company), whose subsidiary, HLD Construction, Inc. (HLD), undertook pre-demolition removal of asbestos, appeals the assessment of civil penalties under RCW
70.94.040 of the Washington Clean Air Act when inspectors from Puget Sound Air Pollution Control Agency (PSAPCA) found cement asbestos board (CAB) remaining on the site during demolition. The Washington State Pollution Control Hearings Board (PCHB) and the superior court affirmed these penalties. We hold that the agency's employment of strict liability was appropriate, and that its order was supported by substantial evidence and was not arbitrary or capricious. We affirm.
On March 4, 1991, HLD undertook as subcontractor to the Company, to remove 18,000 square feet of CAB from the exterior of a single family dwelling. HLD completed the asbestos removal project that same day. The next day, March 5, 1991, the Company began demolition of the structure though demolition was not scheduled to begin until March 11. On March 5, Joseph Eng, a PSAPCA inspector, visited the site in response to a complaint and observed a backhoe operator loading demolition debris onto a truck. Eng found several pieces of CAB on the ground near the 20 by 50 foot pile of debris. The CAB measured approximately two square feet, and was broken into several large pieces with clean edges.
CAB is sheet material commonly used for siding on houses, and occasionally found in roofs or indoor structures. CAB is approximately one-eighth of an inch thick, and is extremely hard and brittle. It does not emit asbestos into the air (it is non-friable) unless it is crumbled, which cannot be done by hand.
Before leaving the site, Eng took samples of the CAB for testing; the inspector picked it up with his bare hands. The backhoe operator immediately called John Dickson (Dickson), Vice-President of HLD, who, along with a certified asbestos worker, went to the site and removed the remaining CAB on the same day. The parties agree that the material found was asbestos.
Thereafter, PSAPCA issued, pursuant to RCW 70.94.040, an amended notice and order of civil penalty 7421 in the
amount of $1,000 alleging violations of PSAPCA Regulation III, Article 4, Sections 4.04 (a)(4)(B) and (C) and 4.05(a)(1)(B).
RCW 70.94.040 provides as follows: "Except where specified in a variance permit, as provided in RCW 70.94.181, it shall be unlawful for any person to cause air pollution or permit it to be caused in violation of this chapter, or of any ordinance, resolution, rule or regulation validly promulgated hereunder."
Sections 4.04(a)(4)(B) and (C) require that all asbestos-containing materials that have been removed or may have fallen off components during the course of an asbestos project shall be collected for disposal at the end of each working day, and contained in a controlled area at all times until transported to a waste disposal site. Section 4.05(a)(1)(B) requires that all asbestos-containing waste material, after being wetted, is to be sealed in leak tight containers to ensure that the asbestos remains adequately wet when deposited at the waste disposal site. RCW 70.94.431 allows the PSAPCA to assess civil penalties up to $1,000 per day.
HLD filed an appeal with the PCHB, which conducted a hearing. The PCHB affirmed the penalty but suspended $250 of it because of HLD's diligence in promptly removing the asbestos; this reduction in penalty would hold only if HLD did not violate air pollution regulations for three years. The PCHB recognized that HLD had worked on over 100 asbestos removal projects, and that it had an asbestos violation the year before. The trial court affirmed the PCHB's findings and conclusions.
The Company argues that the agency's imposition of strict liability to enforce its regulations is an erroneous interpretation that runs contrary to the authorizing statute, RCW 70.94.040, because that statute requires proof of knowledge and causation. It also argues that asbestos removal
should be judged not by whether there was a perfect result, but by a standard similar to that used by the EPA; the EPA examines whether a company failed to perform a required work practice or use a reasonable degree of care. Though these theories were not argued before the PCHB and we need not consider them on appeal, we discuss them to the extent the Company intertwined these issues with the appealable issue of agency interpretation. Case law supports the position that the agency may, within the scope of the statute, impose strict liability to enforce its regulations.
When reviewing agency orders in adjudicative proceedings, the appellate court applies the standards of the Washington Administrative Procedure Act (WAPA) directly to the record before the agency. Tapper v. Employment Sec. Dept., 122 Wash. 2d 397, 402-03, 858 P.2d 494 (1993). Under RCW 34.05.570(3) of the WAPA, a reviewing court may reverse an administrative decision when, inter alia: (1) the administrative decision is based on an error of law; (2) the ...