Or. Occupational Safety & Health Div. v. A & B Sheet Metal Works, LLC

• Citation: 461 P.3d 1094,302 Or.App. 455
• Decision Date: 26 February 2020
• Docket Number: A165656
• Parties: OREGON OCCUPATIONAL SAFETY AND HEALTH DIVISION, Petitioner Cross-Respondent, v. A & B SHEET METAL WORKS, LLC, Respondent Cross-Petitioner.
• Court: Court of Appeals of Oregon

302 Or.App. 455

461 P.3d 1094

OREGON OCCUPATIONAL SAFETY AND HEALTH DIVISION, Petitioner Cross-Respondent,

v.A & B SHEET METAL WORKS, LLC, Respondent Cross-Petitioner.

A165656

Court of Appeals of Oregon.

Argued and submitted December 30, 2019

February 26, 2020

Erin K. Galli, Assistant Attorney General, argued the cause for petitioner-cross-respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

James S. Anderson argued the cause for respondent-cross-petitioner. Also on the briefs were George W. Goodman and Cummins, Goodman, Denley & Vickers, P.C.

Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

JAMES, J.

The Oregon Occupational Safety and Health Administration (OR-OSHA) cited respondent, A & B Sheet Metal Works, LLC (A & B), for "[a] violation of 29 CFR § 1910.1025(d)(2) requiring an initial determination be made to determine if any employee may be exposed to lead at or above the action level," a federal regulation adopted in Oregon by reference pursuant to the Oregon Safe Employment Act (OSEA); see OAR 437-003-0001(24)(d) (Sept. 26, 2007). A & B contested the citation and requested an administrative hearing before an administrative law judge (ALJ) of the Hearings Division of the Workers’ Compensation Board. The ALJ found that:

"[A & B] is a specialty metal fabrication shop that, among other things, makes lead roof jacks used on tile roofs. The current owner, Mr. McInnis, purchased the business ‘a couple of years ago,’ keeping on all the existing employees, and renaming the business A & B Sheet Metal Works, LLC. At the time of the purchase, Mr. McInnis had some concerns about lead outgassing resulting from soldering. Nonetheless, he did not make arrangements for air sampling or exposure studies to be performed. Rather, he relied on smoke testing performed by the manufacturer of the shop’s exhaust systems and assurances from the prior owner that lead monitoring had been performed to allay his concerns."

Additionally, the ALJ found that subsequent testing by a Senior Health Compliance Officer determined that the airborne lead levels at A & B were "8.3 microns per cubic meter over an 8-hour period." 29 CFR section 1910.1025(d)(2) prohibits exposure to lead at or above 50 microns per cubic meter and requires specified employer actions when levels reach 30 microns per cubic meter.

Applying those factual findings, the ALJ concluded that A & B’s actions—specifically, reliance on smoke testing performed by the manufacturer of the shop’s exhaust systems and assurances from the prior owner—did not constitute a "determination" under 29 CFR section 1910.1025 (d)(2). However, given that subsequent testing established that the lead levels at A & B were well below 50 microns per cubic meter, the ALJ reasoned that the failure to conduct a determination compliant with 29 CFR section 1910.1025 (d)(2) did not "expos[e] any employees to a hazardous condition." Relying on our decision in OR-OSHA v. Moore Excavation, Inc. , 257 Or. App. 567, 307 P.3d 510 (2013), the ALJ vacated the citation.

Both parties petitioned for review of the ALJ’s decision. On petition, OR-OSHA argues that the ALJ erred in importing an "actual exposure" requirement to an initial determination violation. On cross-petition, A & B argues that the ALJ was correct in requiring OR-OSHA to establish actual exposure, but that the ALJ erred in finding that A & B’s actions did not meet the standards of a "determination" under 29 CFR section 1910.1025(d)(2).

We address each argument below. Regarding the ALJ’s decision that A & B’s actions were insufficient to constitute a determination under 29 CFR section 1910.1025 (d)(2), we affirm. Regarding the ALJ’s decision that because the airborne lead levels were subsequently determined to be 8.3 microns per cubic meter over an eight-hour period, and, therefore, the failure to initially determine the levels did not expose any employees to a hazardous condition, we reverse.

Whether the ALJ correctly imputed an actual exposure requirement to an initial determination citation is a question of law, reviewed for errors of law, pursuant to ORS 183.482(8)(a). Further, whether A & B’s undisputed actions meet the standard of an initial determination under 29 CFR section 1910.1025(d)(2) is a question of law, reviewed for errors of law.

The facts underlying this case are largely undisputed. A & B is an Oregon business employing five individuals that was acquired in approximately 2014, by McInnis. McInnis purchased the property and the equipment from the former owner, who had operated a similar business under the name "A & B Sheet Metal, Inc." McInnis hired the former owner’s employees. One of the products made by A & B was lead roof jacks used on tile roofs, the creation of which involved soldering and ventilation equipment. That soldering and ventilation equipment was present when McInnis purchased the business.

While evaluating the purchase of the business, McInnis recognized that the existing work processes involved some lead soldering, which might continue to be part of his new business activities. McInnis had some concern about off-gassing from the lead soldering, so he engaged consultants from Jones Welding and "Air Gas." They provided input concerning the condition of the existing equipment as well as whether there was sufficient air movement through the shop areas where plasma cutting and soldering were taking place. They did not, however, measure the presence of lead in the air around those stations in a quantifiable manner.

McInnis also consulted with the prior owner of the business and equipment, Smautz, regarding his safety concerns. Smautz advised McInnis that air sampling and monitoring was previously performed several times on the soldering station as well as in another area of the building. However, no records were provided. Smautz advised that the results had been negative for hazardous exposures. Smautz recommended McInnis perform smoke tests every month to ensure the ventilation system was continuing to function effectively. He demonstrated performance of the smoke tests for McInnis. Following his purchase of the equipment, McInnis continued to perform smoke tests, which he described as follows:

"[T]hey have these little smoke bombs that you get and you can put them behind your [sic ] with somebody standing there, you can put them in front or you can set them throughout the room and turn the fan on and watch the smoke [and] how it travels[.]"

In August 2015, Davis, a compliance officer with OR-OSHA, visited A & B for a general inspection. Davis scheduled a time to return to the site to get a baseline of potential lead exposures to employees who performed soldering work. Davis also indicated that she would like to review any previous air sampling or employee exposure studies that A & B possessed.

On her return visit approximately three weeks later, Davis conducted monitoring and took air samples. A & B did not produce any previous air sampling or employee exposure studies. Testing on Davis’s samples showed an airborne concentration of lead of 8.3 µg/m³. OR-OSHA cited employer for failing to make the initial determination of lead exposure required by 29 CFR section 1910.1025(d)(2). Specifically, the citation alleged:

"An initial determination was not made to determine if any employee may be exposed to lead at or above the action level:

"[ ]At the time of the inspection, the employer did not ensure that a baseline or initial monitoring was performed for employees soldering lead metal with lead solder. The employees fabricate lead roof jacks."

OR-OSHA classified the violation as "other than serious" and proposed a penalty of $0.

We turn now to the merits. The OSEA mandates that employers "furnish employment and a place of employment which are safe and healthful for employees." ORS 654.010 ; see also ORS 654.003. The OSEA permits the Director of the Department of Consumer and Business Services to adopt by reference federal regulations regarding workplace safety. ORS 654.035 ; OAR 437-002-0360(21)(d).

In 1978, the federal Occupational Safety and Health Administration (federal OSHA) issued the final standard for occupational exposure to lead. See United Steelworkers of America, AFL-CIO-CLC v. Marshall , 647 F.2d 1189, 1202 (D.C. Cir. 1980) (explaining genesis of federal lead regulations). Those regulations, which Oregon adopted by reference, apply to any workplace, other than a construction site, where "lead is present * * * in any quantity." 29 CFR § 1910.1025, Appendix B(II).

Under 29 CFR section 1910.1025(c)(1), employers must "assure that no employee is exposed to lead at concentrations greater than fifty micrograms per cubic meter of air (50 µg/m³) averaged over an 8-hour period." Prior to that ceiling, however, the regulation sets an "action level" when an employee, "without regard to the use of respirators," is exposed "to an airborne concentration of lead of 30 micrograms per cubic meter of air (30 µg/m³) averaged over an 8-hour period." 29 § CFR 1910.1025(b).

Because the regulatory scheme—both the ceiling and the action level—are tied to specific quantifiable amounts of airborne lead, the regulation requires employers to perform a determination of lead levels, essentially identifying an initial baseline. 29 CFR § 1910.1025(d)(2) requires that "[e]ach employer who has a workplace or work operation covered by this standard shall determine if any employee may be exposed to lead at or above the action level" of 30 µg/m³.

The method of that determination is covered in 29 CFR section 1910.1025(d)(3), which provides:

"Basis of initial determination.

"(i) The employer shall monitor employee exposures and shall base initial determinations on the employee exposure monitoring results and any of the following, relevant considerations:

"(A) Any information, observations, or calculations which would indicate employee exposure to lead;

"(B) Any previous measurements of

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