Utility Contractor Cited for Workplace Safety Violation Fails to Establish Infeasibility Defense

On March 24, 2014, Division I of the Washington Court of Appeals affirmed the citation by the Washington Department of Labor and Industries (L&I) of a contractor who operated within 10-feet of an energized lines without taking mitigating measures, and rejected the contractor’s “infeasibility defense.”

In this case, Frank Coluccio Construction Co. (“FCC”) was hired to replace a damaged sewer line on Broadway in the Capitol Hill neighborhood of Seattle for Sound Transit.[1]  The repair of the line required FCC to excavate below 18-foot high, 600-800V electric trolley lines, which are used to power busses running along Broadway.  FCC’s work was dangerous, as exposure to as little as 50V can cause death.

The Washington Administrative Code addresses clearance requirements when working around high-powered overhead lines.  Under WAC 296-155-428(20)(a), contractors must maintain a 10-foot clearance from energized overhead lines when operating vehicles and mechanical equipment.  RCW 49.17.080 allows an employer to apply for a variance if it is unable to comply with the standard and meets several other requirements, but FCC did not apply for a variance. 

Under the regulations, a contractor can take several mitigation measures when operating heavy machinery around high-powered overhead lines. For example, nylon slings can act as a limit on the boom and a limit switch can be installed on the excavator’s hydraulics to limit the excavators’ operation to pre-established parameters allowing for control of the boom’s height and swing.  Strobe lights can be hooked to the limit switch indicating when the boom comes within a certain distance of the overhead line.  Lines can be painted on the ground as visual reminders of necessary clearance from overhead lines.  Certified spotters (people who observe the equipment operation from the ground) and alarms to stop the operators from getting close can be used to reduce the risks.

Here, FCC used a backhoe and trench box (a structure placed inside a trench to protect workers from the risk of cave-in – akin to shoring, but readily moveable) to perform the trench excavation, but did not utilize any of the mitigating measures described above.  While digging the trench, a L&I Compliance Safety Officer was travelling in his car and saw FCC’s excavator dragging the box.  He observed the excavator’s boom come within 10-feet of the energized overhead power lines.  L&I cited FCC for a serious violation of WAC 296-155-428(20)(a) and assessed a $1,200 penalty, which was affirmed by a hearing examiner.  FCC unsuccessfully appealed to the Board of Industrial Appeals and then to the King County Superior Court. 

In this appeal to the Washington Court of Appeals, the only issue was whether the Board erred in rejecting its “infeasibility defense.”  “To prevail on an infeasibility defense, the employer must prove (i) that compliance with a particular standard either is impossible or will render performance of the work impossible; and (ii) that it (the employer) undertook alternative steps to protect its workers (or that no such steps were available).”[2]  FCC argued that none of the alternative safety considerations discussed above were relevant because they provided no additional protection from the specific safety hazard, narrowly defining the safety hazard as pulling the trench box.

The Court held, giving substantial weight to the L&I’s expertise and interpretation of the WACs as well as construing the regulations liberally in order to achieve the purpose of providing a safe work conditions for workers, that FCC failed to meet its burden of proving its infeasibility defense.  The Court held that feasible alternatives could have protected FCC’s workers from the electrocution hazard, including use of dedicated spotters and installation of limits that restricted the excavators’ range of motion.  The Court rejected FCC’s attempt to narrowly construe the cited activity, concluding that “a standard that prescribes certain conditions, here the 10-foot prohibition, assumes the existence of safety hazard.”  The Court broadly defined the hazard as electrocution, noting that the testimony indicated that specific and feasible alternatives could have protected FCC’s workers from the hazard, and rejected the infeasibility defense.

[1] Frank Coluccio Const. Co. v. Washington State Dep’t of Labor & Indus., 181 Wash. App. 25, 329 P.3d 91 (2014).

[2] Id. (citing Harry C. Crooker & Sons, Inc. v. Occupational Safety & Health Review Comm’n, 537 F.3d 79, 82 (2008)).

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