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Berkeley Developer Loses Asbestos Judgment Appeal

Friday January 02, 2004

Though a state Administrative Law Judge upheld the finding that a well-known Berkeley construction company “willfully” exposed both workers and the public to asbestos during a Hayward building demolition last year, a lawyer for the company is hailing the decision as a partial victory. 

The lawyer for Kimes Morris Construction—jointly owned by Berkeley builders Andrew Kimes and James Morris—says that the Cal-OSHA judge’s ruling actually favors the builders in some respects because he specifically found no evidence of an “intentional” violation. 

Fred Walter of the occupational health and safety law experts Walter Law Firm of Healdsburg, said that “while the ruling is against the employer [Kimes Morris], actually it is a vindication of the argument the employer [Kimes Morris] was making all along.” 

Cal-OSHA Associate Industrial Hygienist Garrett Brown, who brought the original charges against the firm, greeted Walter’s assertion of victory with a succinct “Ha!” The Oakland-based inspector added, “I don’t see how he [the Kimes Morris attorney] could say that. The only issue under contention was whether the classification of “willful” would be sustained or not, and that’s what the judge sustained. It goes on their record as a willful violation. Their [Kimes Morris’] contention was that it wasn’t a willful violation. They conceded they had violated the law, but they said it was not done willfully. [Cal-OSHA] felt otherwise, and on the basis of the three day hearing, so did the Administrative Law Judge.” 

The hearing was held in Oakland in early October. 

In a ruling issued last week, Judge Manuel M. Melgoza fined Kimes Morris $10,000 for the single charge remaining before him. Cal-OSHA inspectors had originally cited the company for 17 violations stemming from the Hayward demolition project, assessing fines of nearly $36,000. Kimes Morris appealed all of the citations to Cal-OSHA’s Appeals Board, later dropping all but the single “willful” citation appeal after negotiations with Cal-OSHA. 

The judge’s ruling, along with some adjustments to the charges by Cal-OSHA, reduced Kimes Morris’ total fine to $20,800. 

The citations and the hearing stemmed from a December, 2001-January, 2002 incident during Kimes Morris Company’s renovations of a Hayward commercial building co-owned by the company. After Kimes Morris employees were discovered dumping unprotected asbestos waste into an open bin behind the building, Cal-OSHA temporarily suspended the demolition. 

Among the 17 citations later listed against Kimes Morris were the fact that cancer-causing asbestos fibers were being loosed into the air and workers were handling the material without proper protection. Many of the workers involved were Latino immigrant laborers. 

In its defense, Kimes Morris said they were unaware that asbestos was present on the site and unfamiliar with the regulations governing asbestos removal. Kimes Morris officials say that they are primarily constructors of buildings, and have been involved in only one other major demolition project—the Artech Building in Berkeley. That project also involved asbestos removal, but the removal was subcontracted out to another company by Kimes Morris. 

To show what he said indicated the company’s moral—if not legal—lack of blame, Kimes Morris’ attorney Walter noted a sentence near the end of Judge Melgoza’s decision, which read: “The record does not warrant a finding that [Kimes Morris] intentionally exposed employees to a known asbestos hazard, but that is not required to prove the willful classification.” 

“Given the nature of the allegations made by Garrett Brown and other people at Cal-OSHA in Oakland,” Walter said, “I thought that this paragraph was especially valuable, even though we lost the case. The judge said that there is no evidence of any intent to expose employees to asbestos with some sort of cruel and callous disregard of their safety. That’s not necessary to prove OSHA’s definition of willful.” 

While Walter contended that willful ought to mean intentional in all instances, he added that “it’s coming to mean something different when you deal with state agencies that write their own definitions.” 

But Cal-OSHA inspector Brown said the judge’s rejection of the Kimes Morris appeal is all that matters. He notes that the Hayward asbestos citations were the fourth time Cal-OSHA has been called in to inspect Kimes Morris building projects in the past three years. The first three inspections resulted in “serious” citations, which he described as violations of safety procedures that have the “substantial possibility of serious injury or death.” 

Besides the $20,000 fine, Brown said, there might be other consequences for the company. “It might have some affect on their Workers Compensation insurance premiums if their workers comp carrier learns that they were cited by Cal-OSHA for willfully violating the law. It might make it more difficult for them to win bids if they have a record.” 

Brown added that someone might take note of the number of citations against a single company in a short a period of time. “That’s unusual,” he said. “It doesn’t happen very often.”