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Department of Labor and Industries v. Foss Environmental Services Co.

December 19, 1996

DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON, RESPONDENT,
v.
FOSS ENVIRONMENTAL SERVICES COMPANY, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-2-29179-3. Date filed: 08/04/95. Judge signing: Hon. Nancy A. Holman.

Authored by Faye C. Kennedy. Concurring: Mary K. Becker, Ronald E. Cox.

The opinion of the court was delivered by: Kennedy

KENNEDY, A.C.J. -- Foss Environmental Services Company (Foss) was cited by the Washington Department of Labor and Industries (DLI) for three violations of the Washington Industrial Safety and Health Act for failure to follow the Act's provisions during an underground tank excavation at Children's Hospital in Seattle. The Board of Industrial Insurance Appeals vacated the citation against Foss because it found that WAC 296-62-300 (Part P), upon which the alleged violations were premised, did not apply to the Foss site. DLI appealed the Board's order to the superior court, which reinstated the citation. Foss appeals, contending that the Board properly found that Part P did not apply because the Foss site was not recognized as an uncontrolled hazardous waste site. We reverse the trial court and reinstate the Board's decision.

FACTS

In 1993, Foss was retained to perform underground storage tank closure and site assessment activities at Children's Hospital in Seattle. Foss removed three tanks from the site. During excavation and removal of the tanks, a Foss supervisor detected the odor of diesel fuel and noticed staining of the soil near the tanks. Testing revealed that the tanks had been used to store diesel fuel, and that the soil surrounding the tanks was contaminated with the fuel. Foss notified the Washington Department of

Ecology and completed its operation.

During the excavation, a DLI industrial hygienist, McClelland Davis, was at Children's Hospital on an unrelated matter. Davis noticed Foss's excavation activities, informally inspected the site, and spoke with Foss personnel. Suspecting violations of safety and health laws, Davis referred the matter to DLI, which inspected Foss's work operation between February and July, 1993. DLI cited Foss for three violations of the Washington Industrial Safety and Health Act. *fn1

Foss appealed the citation to the Board of Industrial Appeals (Board).

At the hearing before Industrial Appeals Judge Mark Jaffe, DLI conceded that the first of the three allegations of violation should be dismissed.

After considering the evidence, Judge Jaffe determined that the citation against Foss should be vacated in its entirety. The DLI petitioned the Board for review of Judge Jaffe's decision. Review was denied, and the Board adopted Judge Jaffe's proposed decision as its final decision.

The DLI then appealed to the King County Superior Court. The court reversed the decision of the Board, affirmed the vacation of the first alleged violation, reinstated the second and third violations, and entered a monetary judgment in favor of DLI in the amount of the fines originally imposed by DLI against Foss.

Foss appeals.

Discussion

The DLI contends that WISHA appeals such as this one are "specifically exempt from the procedural aspects of the ...


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