Oregon Occupational Safety & Health Division v. Moore Excavation, Inc., 0800169SH; A149283.

CourtCourt of Appeals of Oregon
Writing for the CourtSERCOMBE
Citation257 Or.App. 567,307 P.3d 510
Docket Number0800169SH; A149283.
Decision Date17 July 2013

257 Or.App. 567
307 P.3d 510


0800169SH; A149283.

Court of Appeals of Oregon.

Argued and Submitted July 30, 2012.
Decided July 17, 2013.

[307 P.3d 511]

Inge D. Wells, Senior Assistant Attorney General, argued the cause for petitioner.
On the briefs were John Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General.

George W. Goodman argued the cause for respondent. With him on the brief was Cummins, Goodman, Denley & Vickers, P.C.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.


[257 Or.App. 568]The Oregon Occupational Safety and Health Division (OR–OSHA) seeks judicial review of an administrative law judge's (ALJ) order vacating a citation issued by OR–OSHA to Moore Excavation, Inc. (Moore).1 Moore was cited for failure to “tag and withdraw from service a damaged portable ladder” in violation of 29 CFR section 1926.1053(b)(16),2 a federal regulation

[307 P.3d 512]

adopted in Oregon by reference pursuant to the Oregon Safe Employment Act (OSEA).3OAR 437–003–0001(24)(d) (9/26/07); see alsoORS 654.035 (authorizing the Director of the Department of Consumer and Business Services to adopt such regulations). Although Moore conceded that a violation of that regulation had indeed occurred, the ALJ vacated the citation after determining that OR–OSHA had failed to prove that, as a result of the violation, it was “reasonably predictable” that a worker would have become exposed to the hazard created by that violation. OR–OSHA assigns error to the ALJ's vacation of the citation, arguing on judicial review that the ALJ erroneously imposed that standard of proof in assessing the employee “exposure” element of its prima facie case. It asserts that, “under the proper standard,” it was required to prove only “that the [regulation] was violated and that employees had access to the violative condition.” OR–OSHA concedes that evidence of employee exposure to the hazardous condition was required to prove the violation. However, OR–OSHA argues that it was required to prove only that employee exposure to the hazardous condition was possible—not, as required by the ALJ, that it was “reasonably predictable[.]” On review for errors of law, ORS 183.482(8)(a), we conclude that the ALJ correctly imposed a reasonable-predictability standard with respect to OR–OSHA's burden to prove employee exposure [257 Or.App. 569]to the damaged ladder. On review for substantial evidence, ORS 183.482(8)(c), we conclude that the ALJ did not err in vacating the citation after determining that OR–OSHA had failed to meet its burden under that standard.4

In January 2008, Moore—an excavation company operating in the Pacific Northwest—was repairing a water line in Turner. The project was quite large, involving approximately “15,000 lineal feet of pipe and several discrete work areas.” On January 18, OR–OSHA Safety Compliance Officer Weaver opened an inspection at the site, contacting site superintendent Coate and conducting a “walk through” of the site. Importantly, at the time of Weaver's inspection, the bulk of the work had been completed and the “active construction zone” within the three-mile worksite had been reduced to “roughly two to three thousand [lineal] feet” with approximately 18 employees working in that area; however, Weaver's inspection encompassed both active and inactive areas.

In the course of his inspection, Weaver “identified a 24–foot extension ladder that had been damaged” but had not been “tagged” (that is, marked with language such as “Do Not Use” as set forth in 29 CFR section 1926.1053(b)(16)). The ladder had been visibly damaged approximately one week prior to the inspection when it was run over by an excavator, and the top rungs were “severely bent.” At the time of the inspection, it was located inside of a large, “enclosed fenced area” that was “not a part of the active work zone at the time * * *.” That “inactive” area was approximately 2,000 square feet in size, encompassed a large, excavated pit, and was surrounded by a “cyclone” fence topped with barbed wire. Weaver observed the ladder resting in the bottom of that pit, with the visibly damaged portion of it sticking out and [257 Or.App. 570]leaning up against the fencing.5 After Weaver pointed

[307 P.3d 513]

it out, a foreman was immediately called to remove the damaged ladder from the worksite.

Ultimately, Weaver cited Moore for an “[o]ther than serious violation” in connection with its failure to tag and remove the damaged ladder from the worksite and imposed a $0 penalty. Moore appealed to OR–OSHA, and that appeal was subsequently transferred for a hearing before an ALJ on August 5, 2010. Soon after, that ALJ issued an opinion and order vacating the citation and framing the issue as follows: “The question in this case is whether the mere possibility of exposure as opposed to a reasonable likelihood of exposure is enough to support the citation in this instance.” OR–OSHA then moved for reconsideration, and, on April 20, 2011, the ALJ issued an opinion and order on reconsideration affirming the citation—relying in large part on this court's opinion in OR–OSHA v. David A. Mowat & ML Mowat Co., 237 Or.App. 576, 240 P.3d 748 (2010)( Mowat ), which we discuss below. Moore then moved for reconsideration, and, on July 28, 2011, a different ALJ 6 issued a second opinion and order on reconsideration, which again vacated the citation. Addressing our opinion in Mowat, the ALJ ultimately reasoned that “[a]ll Mowat really tells us here is that OR–OSHA [did] not have to prove that a broken ladder is hazardous to use, a proposition that employer does not challenge.” Addressing OR–OSHA's burden to prove employee “exposure” (still in existence post- Mowat), the ALJ reasoned:

[257 Or.App. 571]“First, it is obvious that the ‘zone of danger’ here is restricted to use of the damaged ladder itself. * * * [H]ere, a violation would be established if it were reasonably predictable that, as a result of employer's failure to tag and/or withdraw from service the defective ladder, an employee would attempt to use the damaged ladder. Although there was conflicting testimony regarding whether the gate to the fenced work site here was locked, there is no persuasive evidence that the work site itself was an active site during the time the defective ladder was stored there.
(Emphases added.) OR–OSHA now seeks judicial review.

As noted, OR–OSHA contends on review that the ALJ erred in requiring that it “prove that there was [reasonably predictable] employee exposure to a hazard because of Moore's failure to comply with the regulation” and argues that the citation should have been affirmed in this instance. That is, it argues that it was required to prove only that the regulation was violated and that “employees had access to the violative condition”—eschewing the ALJ's requirement that OR–OSHA prove that it was “reasonably predictable that, as a result of the violative condition * * *, a worker would become exposed to the actual risk of injury by attempting to use the defective ladder.” (Emphasis added.) In addition, relying on Mowat, 237 Or.App. at 580–83, 240 P.3d 748, OR–OSHA argues that “[n]othing in the terms of the [regulation] at issue here requires OR–OSHA to prove the existence of a hazard.”

For its part, Moore “accepts the existence of a hazard and asserts only that there was no reasonably predictable employee endangerment relative to that hazard.” That is, Moore concedes that its violation of 29 CFR section 1926.1053(b)(16) “created a potentially hazardous condition” under the principle set forth in Mowat and discussed below; however, it argues that the ALJ correctly concluded that OR–OSHA failed to carry its burden of proving reasonably predictable employee exposure to that hazardous condition. Ultimately, Moore (1) asserts that “reasonable predictability” is the appropriate standard for proving employee exposure to a violative condition under the OSEA and (2)

[307 P.3d 514]

argues that the ALJ correctly determined that OR–OSHA failed to meet its burden of proof under that standard. We agree with Moore.

[257 Or.App. 572]First, in order to clarify the parties' arguments and the ALJ's reasoning, we address our 2010 decision in Mowat and the distinction between proof of “hazardousness” and proof of “exposure.” In Mowat, we reviewed an ALJ's order vacating a citation for violation of a federal regulation adopted under the OSEA that prescribed specific standards for “sloping and benching system[s]” at excavation sites. 237 Or.App. at 578, 240 P.3d 748. There, the ALJ had vacated the citation “on the ground that OR–OSHA had failed to prove that [the employer's] violation of [the] safety [regulation] had created a hazard for [its] employees.” Id. (emphasis added). We reversed, reasoning that established federal law “draws a distinction between two types of rules” those that “explicitly or implicitly make hazardousness an element of the rules” and those that presume the existence of a hazard. Id. at 580–82, 240 P.3d 748. We held that the regulation at issue fell into the latter category, stating that the regulation

“presumes that an employer's failure to conduct an excavation in accordance with one of the four options in the [regulation] creates a cave-in hazard for employees who could be affected by a cave-in. Hence, OR–OSHA was not required to present evidence as part of its prima facie case that the excavation at the [employer's] work site had, in fact, created a hazardous condition for [the employer's] employees.”

Id. at 582–83, 240 P.3d 748.

Like the regulation in Mowat,29 CFR section 1926.1053(b)(16) falls into the latter category.7 A regulation mandating that employers mark damaged and unsafe equipment ( e.g., a broken ladder) and remove it from service implicitly presumes that, if left unmarked and accessible,...

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