WDFW Appeals L&I Fines From Smolt Trap Accidents

The Washington Department of Fish and Wildlife is appealing more than $200,000 in state fines recently levied by the Department of Labor & Industries following investigations of accidents that occurred at two Westside smolt traps early this year.

WDFW is taking issue with L&I’s determination that the accidents that left one staffer dead on the Duckabush and another in the hospital after hitting his head on the Nisqually earlier this year were “willful” violations of the Washington Industrial Safety and Health Act and is asking that they be downgraded to “serious” and the fines put towards the agency’s safety program instead.

“I don’t think the classification of the penalties was correct; we’ll see how that turns out. But while it’s under appeal, probably won’t talk a lot about the details,” WDFW Director Kelly Susewind briefed the Fish and Wildlife Commission this morning.

Appeal forms and attachments WDFW sent to L&I yesterday and acquired by this magazine do provide some more details.

“There is no evidence of willful violation of WISHA, in fact, it is the opposite,” read both attachments. “We were aware of the hazard of working in/on and around water and took reasonable steps to abate the hazard.”

WDFW points to efforts since 2021 to move from employee-led to professionally led training programs, a $5-plus million “investment” in safety tools and training last year and the December 2023 hiring of a consultant to review agency programs.

“There is also no evidence of plain indifference relative to hazards associated with working in/on and around water,” the letters state.

They lay out the 2021 and 2022 hiring of two instructors and development of a boating safety program, along with a series of scheduled classes last year and early this year.

WDFW is asking L&I to reclassify primary violations in both accidents to a lower level.

“We are asking that Violation 1-1 be classified as Serious, rather than Willful Serious. According to DOSH Compliance Manual Chapter 5 C.7.a. The employer has to commit: 1) an intentional violation of the WISH Act, or 2) plain indifference to its requirements. Relative to WISHA, there are no industry standards or legal requirements specific enough to justify a willful violation. WAC 296-800-14020(1), the alleged rule violation cited as a basis for the ‘willful serious’ finding, requires the employer to ‘develop, supervise, implement, and enforce training programs.’ WDFW has been doing this for years, and more recently has been taking steps to modernize and improve its training programs. Historically, WDFW relied more on specific on-the-job training by supervisors, tailored to the unique field conditions of each employee. WDFW has been working diligently and successfully to develop, supervise and implement more formalized and centralized training programs since 2021, including MOTC, Personal Safety, Swift Water, Cold Water, and PFD training,” WDFW Human Resources Director Lonnie Spikes states in both of the agency’s appeals of L&I’s citations.

L&I fined WDFW $114,000 for nine violations around the drowning death of scientific tech Mary Valentine, 48, while she was working at the trap on the Duckabush River last January and $86,400 for four violations after another tech hit his head on the bottom of a trap on the Nisqually River after his boat capsized in late February.

Both Valentine’s widower, David Hall, and the family of Erin Peterson, who died while performing a WDFW snorkel survey on the Wind River last September, are reportedly suing WDFW over their loved ones’ deaths. WDFW was fined $30,800 in March for the latter death.

Collected fines go into a supplementary workers’ comp fund, but WDFW is asking that those from the Duckabush and Nisqually incidents be “used for training and resources for our safety program.”

WDFW’s Spikes also took issue with L&I’s press release announcing the violations, stating it “include (sic) more factual allegations than the formal citations themselves” – an L&I spokesman has not returned an email from Wednesday morning asking for clarification on some of the violations mentioned – and wondered why in the Duckabush case, L&I dinged the agency for not having provided fish sampler assault training, as the job didn’t include public interactions.

He did note that WDFW is expanding that and boater safety training programs.

The agency’s focus on safety was reiterated by Director Susewind this morning.

“So you all have heard us talk about safety a lot,” Susewind told the commission. “This has become a top priority for us. You all approved a budget request last time for about $4.7 million from the legislature. You’re going to hear today that that’s continuing to build that safety program [in the 2025 budget request] is our top priority or a top priority and we’re leaning into it. So I want you to know that we’ve been on this path for a while, we’ve been accelerating it, and accelerating the acceleration, and I think we’re in a pretty good place going forward.”

Susewind told commissioners that most of the violations identified in the Duckabush and Nisqually investigations had been corrected by the time L&I issued its citations this summer.

“On those two particular things, we stopped all the operations,” Susewind said. “We stood down the smolt trap operations until we went to every smolt trap and made sure it was being operated in a safe manner, making sure people have their gear, have their flotation devices, etc., and are trained to operate. So we’re leaning as hard as we have been, and with that we also submitted an appeal of those penalties yesterday.”