Brand Energy Servs., LLC v. Or. Occupational Safety & Health Div.

• Decision Date: 20 February 2014
• Docket Number: 0900144SH, A150953.
• Parties: BRAND ENERGY SERVICES, LLC, Petitioner, v. OREGON OCCUPATIONAL SAFETY AND HEALTH DIVISION, Respondent.
• Court: Oregon Court of Appeals

261 Or.App. 210

323 P.3d 356

BRAND ENERGY SERVICES, LLC, Petitioner,

v.OREGON OCCUPATIONAL SAFETY AND HEALTH DIVISION, Respondent.

0900144SH, A150953.

Court of Appeals of Oregon.

Submitted Nov. 07, 2013.

Decided Feb. 20, 2014.

Suzanne Kelly Michael and Michael & Alexander PLLC filed the briefs for petitioner.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Inge D. Wells, Senior Assistant Attorney General, filed the brief for respondent.

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

HADLOCK, J.

Employer seeks judicial review of a final order of the Workers' Compensation Board that approved a citation by the Oregon Occupational Safety and Health Division (OR–OSHA) for violating 29 CFR section 1926.451(g)(1)(vii)-a rule that OR–OSHA has adopted by reference ¹-which generally requires that employees on scaffolds be protected by fall-protection systems. OR–OSHA issued the citation after an employee fell 40 feet from a scaffold that he and other employees were in the process of dismantling. The only question on review is whether 29 CFR section 1926.451(g)(1)(vii) applies to employees who are dismantling a scaffold. We conclude that the rule does not apply and, accordingly, reverse the board's order.

The pertinent facts are neither extensive nor disputed. Employer contracted to construct a scaffold as part of a roof-replacement project for a business in Newberg. The scaffold platform consisted of sheets of plywood laid across and nailed to aluminum I-beams. After the roof project was completed, employer dismantled the scaffold. Employees removed the nails from the plywood, picked up the plywood sheets, and passed them to other employees to be taken away. One of the plywood sheets shifted off its supporting I-beam after the nails had been removed. An employee was standing on the sheet when it shifted; both he and the sheet fell 40 feet to the floor below. At the time of the accident, the employee was wearing a fall-protection harness but was not “tied off” to anything; that is, the harness was not fastened to anything in a way that would have stopped the employee from falling to the ground.

OR–OSHA issued a citation to employer alleging that it had violated 29 CFR section 1926.451(g)(1)(vii), which provides that, for certain types of scaffolds, “each employee shall be protected by the use of personal fall arrest systems or guardrail systems * * *.” ² OR–OSHA did not cite employer for violating a different paragraph of the rule that explicitly applies to “employees erecting or dismantling supported scaffolds,” that requires employers to “determine the feasibility and safety of providing fall protection” for those employees, and that requires employers to provide fall protection for those employees “where the installation and use of such protection is feasible and does not create a greater hazard.” 29 CFR § 1926.451(g)(2).

Employer disputed the citation, arguing that subparagraph (g)(1)(vii) of the rule does not apply during the erecting and dismantling of scaffolds. Instead, employer argued, only subparagraph (g)(2) addresses fall protection for employees who are engaged in that work. The parties stipulated that, if subparagraph (g)(1)(vii) of the rule does not apply to employees who are erecting or dismantling scaffolds, the citation should be dismissed but, if the rule does apply in those circumstances, the citation was appropriate. After a hearing, an administrative law judge (ALJ) ruled that 29 CFR section 1926.451(g)(1)(vii) does apply, and he entered an order approving the citation. Employer seeks judicial review of that order.³

On review, employer renews its argument that 29 CFR section 1926.451(g)(2), not paragraph (g)(1), applies when employees are erecting or dismantling a scaffold. OR–OSHA responds that paragraph (g)(2) merely sets out the standard by which an employer must determine whether fall protection is feasible and safe during the erecting and dismantling processes, but does not itself require that any feasible fall protection be used. Instead, OR–OSHA contends, it is paragraph (g)(1) that requires that fall protection actually be used.

The parties' arguments raise the issue of the correct interpretation of 29 CFR section 1926.451(g)(1) and (2). 29 CFR section 1926.451 was enacted by the federal Occupational Safety and Health Administration (OSHA) in 1996 and adopted by OR–OSHA on March 12, 1997. Safety Standards for Scaffolds Used in the Construction Industry, 61 Fed Reg 46026 (Aug 30, 1996); OAR 437–003–0001(12)(b). In some cases involving federal safety rules that OR–OSHA has adopted by reference, we have looked to federal case law for guidance. OR–OSHA v. Moore Excavation, Inc., 257 Or.App. 567, 575–76, 307 P.3d 510 (2013). In this case, however, the parties have not alerted us to any federal cases interpreting 29 CFR section 1926.451(g), and we are not aware of any. ⁴ Consequently, we revert to our usual method of interpreting Oregon administrative rules.

Generally speaking, we interpret rules by applying the same analytical framework that applies to the interpretation of statutes. That is, we consider the text of the rule and its context, including other portions of the rule and related laws, and the rule's adoption history, State v. Teixeira, 259 Or.App. 184, 190, 313 P.3d 351 (2013), including the history of OSHA's adoption of the federal rule, cf. State v. Cooper, 319 Or. 162, 168, 874 P.2d 822 (1994) (considering federal legislative history of a federal evidence rule that was the model for Oregon's rule, where the United States Supreme Court had not interpreted the federal rule). However, when an administrative agency has interpreted its own rule, we defer to that interpretation if it is plausible and not “inconsistent with the wording of the rule itself, or with the rule's context, or with any other source of law.” ⁵ Don't Waste Oregon Com. v. EnergyFacility Siting, 320 Or. 132, 142, 881 P.2d 119 (1994). Here, OR–OSHA has interpreted its adopted version of 29 CFR section 1926.451(g) in the course of this administrative proceeding. Accordingly, we begin by considering the agency's interpretation of that adopted rule.

The pertinent subsections of 29 CFR section 1926.451(g) provide:

“(g) Fall protection. (1) Each employee on a scaffold more than 10 feet (3.1m) above a lower level shall be protected from falling to that lower level. Paragraphs (g)(1)(i) through (vii) of this section establish the types of fall protection to be provided to the employees on each type of scaffold. Paragraph (g)(2) of this section addresses fall protection for scaffold erectors and dismantlers.

“ * * * * *

“(vii) For all scaffolds not otherwise specified in paragraphs (g)(1)(i) through (g)(1)(vi) of this section, each employee shall be protected by the use of personal fall arrest systems or guardrail systems meeting the requirements of paragraph (g)(4) of this section.

“(2) Effective September 2, 1997, the employer shall have a competent person determine the feasibility and safety of providing fall protection for employees erecting or dismantling supported scaffolds. Employers are required to provide fall protection for employees erecting or dismantling supported scaffolds where the installation and use of such protection is feasible and does not create a greater hazard.”

OR–OSHA contends that the first sentence of paragraph (g)(1) (“Each employee * * * shall be protected from falling * * *.”) imposes a blanket requirement that all employees be protected from falling, and that paragraph (g)(2) creates an exception to that requirement for scaffold erectors and dismantlers when fall protection is infeasible or creates a greater hazard. According to the agency, paragraph (g)(2) requires the employer to make the feasibility determination and to “provide” fall protection when it is feasible, but “nothing in paragraph (g)(2) requires the use of fall protection. That obligation is found in paragraph (g)(1).” (Emphasis in original.) Thus, in OR–OSHA's view, subparagraphs (g)(1)(i) through (vii), setting out the types of fall protection to be provided, apply to all employees for whom protection must be provided, including scaffold erectors and dismantlers.

We disagree. OR–OSHA's interpretation of the rule overlooks its adoption history. Paragraph (g)(2) of the adopted rule did not become effective until September 2, 1997, whereas the rest of the rule took effect in Oregon six months earlier.⁶ If OR–OSHA were correct that the first sentence of paragraph (g)(1) imposes a requirement that all employees be protected from falling, for the six months before paragraph (g)(2) took effect, there was no exception to that blanket requirement for scaffold erectors and dismantlers. In other words, if OR–OSHA's interpretation were correct, during that initial period, those employees would have been required to use fall protection systems without regard to whether doing so was feasible or created a greater hazard. The rule's adoption history demonstrates that that was not the intent behind the rule.

Before 29 CFR section 1926.451(g) was adopted, fall protection for scaffold erectors and dismantlers was not required, because it was historically perceived that such protection was not feasible. Safety Standards for Scaffolds Used in the Construction Industry, 61 Fed Reg at 46064. As originally proposed, the rule included an express exemption from fall protection for erectors and dismantlers.⁷Id. at 46067. After receiving comments on the proposed rule, however, OSHA concluded that there are “many situations where it is feasible to provide fall protection for erectors and dismantlers.” Id. However, the agency recognized that, in some circumstances, the use of fall protection is infeasible because there are no suitable anchor points for a protection system, or the fall protection system creates a greater hazard because, for example, a falling person could pull the...