Construction Law

Though the Contractor Conducted a Survey of Hazardous Materials and There Were No Objective Standards to Determine the Adequacy of the Survey, L&I Found as a Matter of Law That the Survey Was Not Performed in Good Faith and the Contractor Was Cited

By John P. Ahlers

Seattle Pacific University ("SPU") engaged Prezant Associates, Inc. ("Prezant") to identify all asbestos containing materials for abatement on the Miller Science Building.  The contractor, in its bid, agreed to perform the inspection in accordance with the Washington Administrative Code (WAC) and certain federal regulations (CFRs).  The contractor performed the survey and sampled vinyl flooring materials from the first floor of the two story project and determined which portions of the project contained asbestos. The Contractors believed the vinyl floor on the second floor was the same as the first floor.  After issuance of the report, a subcontractor began work on the site and during demolition, discovered asbestos containing vinyl floor tile on the second floor.  The contractor was cited by L&I, who concluded that the contractor's investigation and survey had not been performed adequately.  The contractor appealed to the Board of Industrial Insurance Appeals (BIIA).  BIIA ruled as a matter of law that that contractor committed a serious violation and confirmed the Department's citation.  The contractor then appealed to the Court of Appeals of the State of Washington, asserting that the sampling protocol followed by the contractor was appropriate.  The WAC referred to 40 CFR 763.83, which defined vinyl floors as "miscellaneous material", which required that samples from each homogeneous area be collected in "a manner sufficient" to determine whether the material contains asbestos.

The contractor argued that since there were no objective standards to determine the adequacy of a good faith survey, the citation should be dismissed.  The inspector, based on his mistaken belief that the vinyl flooring from the first two floors was the same, took only a single sample.  As it turned out, the first floor vinyl was not the same color or texture as the vinyl on the second floor and the court concluded that the contractor had violated the WAC by not performing a good faith survey.

Prezant Associates, Inc. v. Washington State Depart. of Labor & Industries, 141 Wn. App. 1, 165 P.3d 12 (2007)

Full post as published by Construction Law Blog on February 22, 2008 (boomark / email).