329 P.3d 91
Wash. Ct. App.2014Background
- Coluccio operated a 20-foot‑boom excavator in Broadway’s center turn lane beneath energized Metro trolley lines located ~12–15 feet above the road while replacing a sewer main. Inspector Paddock observed the boom within 10 feet of the lines on Feb. 11, 2011.
- WAC 296‑155‑428(20)(a) requires a 10‑foot clearance from energized overhead lines; violation of that rule was cited as a serious WISHA violation.
- Coluccio’s safety director and foreman knew the work would require operating within 10 feet of the lines but did not obtain a pre‑work variance; they relied on spotters and positioning instead.
- At the time of inspection no limit switch, nylon sling, functioning strobe, painted clearance line, or dedicated spotter were in use; Paddock halted work and provided variance contact information.
- Coluccio applied for a variance after the inspection proposing measures (training refreshers, daily prejob meetings, a dedicated safety watch, and installation of a limit switch); the Department granted an interim 4‑foot clearance with those safeguards for continued work.
- The Department assessed a $1,200 penalty; the Board and superior court affirmed, finding Coluccio failed to prove an affirmative infeasibility defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Coluccio established an affirmative infeasibility defense to the specific WAC 10‑ft requirement | Coluccio: compliance was infeasible as the excavator never operated directly under the lines and it used planning, positioning, and electrical training to avoid contact | Department: the regulation is presumed feasible; Coluccio failed to show impossibility or that no feasible alternatives existed and did not use feasible alternatives (spotter, limit switch) before inspection | Held: Board’s rejection of infeasibility affirmed — substantial evidence supports finding Coluccio failed to prove infeasibility or use of feasible alternatives |
| Whether alternative safety measures proposed after inspection are relevant to the citation | Coluccio: post‑inspection measures address future work and are irrelevant to the violation observed | Department: alternatives (e.g., limit switch, dedicated spotter) were feasible and would have addressed the electrocution hazard the regulation targets | Held: Court treated those alternatives as relevant evidence of feasible protections and noted Coluccio itself proposed a limit switch in its variance application |
| Whether the cited hazard was limited to ‘‘pulling the trench box’’ or encompassed general excavator operation within 10 ft | Coluccio: citation concerned only trench‑box dragging beneath the lines | Department/inspector: citation targeted operation of the excavator within 10 ft of energized lines, not just the box activity | Held: Court agreed inspector cited general operation within 10 ft; employer cannot relabel the hazard to avoid the standard |
| Whether absence of an explicit regulation requiring limit switches prevents reliance on them as feasible alternatives | Coluccio: no WAC mandates limit switches, so the Department cannot rely on their absence to defeat infeasibility | Department: WAC need not list every feasible alternative; courts may consider practical, feasible measures | Held: Court rejects Coluccio’s argument — feasibility of alternatives may be shown even if not specifically required by WAC; Coluccio’s failure to use multiple feasible measures was dispositive |
Key Cases Cited
- SuperValu, Inc. v. Dep’t of Labor & Indus., 158 Wn.2d 422 (2006) (burden and presumption that a specific standard is feasible; employer must prove infeasibility)
- Wash. Cedar & Supply Co. v. Dep’t of Labor & Indus., 119 Wn. App. 906 (2004) (elements required to prove a serious WISHA violation)
- Harry C. Crooker & Sons, Inc. v. Occupational Safety & Health Review Comm’n, 537 F.3d 79 (1st Cir. 2008) (framing infeasibility defense: compliance impossible or prevents work and alternatives undertaken or unavailable)
- Spancrete Northeast, Inc. v. Occupational Safety & Health Review Comm’n, 905 F.2d 589 (2d Cir. 1990) (limits of relying on non‑specific general standards for prescribing particular protective equipment)
- Asplundh Tree Expert Co. v. Dep’t of Labor & Indus., 145 Wn. App. 52 (2008) (Washington courts consult federal precedent interpreting analogous OSHA provisions)