Division of Occupational Safety & Health v. State Bd. of Control

• Decision Date: 19 February 1987
• Citation: 189 Cal.App.3d 794,234 Cal.Rptr. 661
• Court: California Court of Appeals Court of Appeals
• Parties: , 1986-1987 O.S.H.D. (CCH) P 27,921 DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Plaintiff and Respondent, v. STATE BOARD OF CONTROL, Defendant and Respondent; ARCADE FIRE DISTRICT, Real Party in Interest and Appellant. Civ. C 000006.

Page 661

234 Cal.Rptr. 661

189 Cal.App.3d 794, 1986-1987 O.S.H.D. (CCH) P 27,921

DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Plaintiff and Respondent, v. STATE BOARD OF CONTROL, Defendant and Respondent ARCADE FIRE DISTRICT, Real Party in Interest and Appellant.

Civ. C 000006.

Court of Appeal, Third District, California.

Feb. 19, 1987.

Rogers & Wells, Ross & Scott and William D. Ross, Los Angeles, for real party in interest and appellant.

Ralph B. Jordan, County Counsel, Bakersfield, and Evelyn Keller, Deputy County Counsel, Los Angeles, for intervenor and appellant.

Michael D. Mason, Chief Counsel, San Francisco, for plaintiff and respondent.

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Jeffrey J. Fuller and Faith J. Geoghegan, Deputy Attys. Gen., for defendant and respondent.

PUGLIA, Presiding Justice.

In this appeal we consider whether a safety regulation promulgated by the Division of Occupational Safety and Health (Division) of the Department of Industrial Relations mandates increased costs to local government such that they are reimbursable under the provisions of Revenue and Taxation Code section 2201 et seq. ¹ With respect to the period of time in issue, we conclude that the regulation does not create reimbursable state-mandated costs.

On October 8, 1980, Arcade Fire District (Arcade) filed a test claim with the State Board of Control (Board) asserting that title 8, section 5144, subdivision (g), of the California Administrative Code (hereafter referred to as Regulation) imposed additional manpower requirements upon it and other local fire protection districts beyond service levels required prior to January 1, 1973. ² A local governmental agency (§ 2211), Arcade sought state reimbursement under former section 2231. (Repealed Stats. 1986, ch. 879, § 23; No. 10, West's Cal.Legis.Service, p. 799; see now Gov.Code, § 17561.) Arcade claimed it incurred additional manpower costs during fiscal years 1978-1979 and 1979-1980 as a result of Regulation 5144, subdivision (g), and that these costs were mandated by the state within the meaning of section 2207.

Section 2207 defines reimbursable " 'Costs mandated by the state.' " They include "any increased costs which a local agency is required to incur as a result of ... (c) Any executive order issued after January 1, 1973, which (i) implements or interprets a state statute and (ii), by such implementation or interpretation, increases program levels above the levels required prior to January 1, 1973." An executive order includes a regulation issued by a state agency such as the Division (§ 2209, subd. (c)). Specifically excluded from the definition of " 'costs mandated by the State' " are " 'costs mandated by the federal government' " as defined in section 2206 and former section 2253.2, subdivision (b)(3) (repealed Stats. 1986, ch. 879, § 41; No. 10, West's Cal.Legis.Service, p. 800; see now Gov.Code, § 17556, subd. (c)).

Regulation 5144, subdivision (g), was first adopted by the Division effective August 11, 1974. As amended effective October 14, 1978, the regulation provides: "In atmospheres immediately hazardous to life or health, at least two persons equipped with approved respiratory equipment shall be on the job. Communications shall be maintained between both or all individuals present. Standby persons, at least one of which shall be in a location which will not be affected by any likely incidents, shall be present with suitable rescue equipment including self-contained breathing apparatus." ³

At the administrative hearing, Arcade established that it has always adhered to a practice, known as the "buddy system," whereby two fire fighters enter a burning structure together. Arcade also presented evidence that the buddy system is considered essential to the safety of both fire fighters and the public and is practiced by fire fighting agencies nationwide. Prior to the 1974 effective date of Regulation 5144, subdivision (g), Arcade was unaware of any standby requirement and used only two-person teams in its engine companies. After its effective date, Arcade interpreted the regulation to mandate a minimum fire fighting team of at least three persons equipped with respiratory equipment, one of whom was required to stand by outside a burning structure while the other two operated together under the "buddy system." In support of this interpretation, Arcade presented evidence that Division inspectors had previously informed local fire protection districts that Regulation 5144, subdivision (g), requires a minimum of three fire fighters at the scene.

In opposition to Arcade's claim, the Division maintained that any costs incurred as a result of Regulation 5144, subdivision (g), were federally mandated because the state regulation merely implemented a federal regulation under the 1979 Federal Occupational Safety and Health Act. (29 U.S.C. § 651 et seq.) Even if a state mandate were involved, the Division contended, Arcade's interpretation of the regulation was erroneous. In the Division's view, Regulation 5144, subdivision (g), requires only two persons to be on the job when atmospheres immediately hazardous to life or health are encountered--one person to stand by in a location unaffected by likely incidents and the other to encounter the dangerous atmosphere itself. While the Division would certainly encourage the use of three-person teams at the option of local fire districts, it takes the position that additional manpower is neither mandated by the express language of the regulation nor, as a matter of official policy, a fire fighting standard which the Division seeks to enforce.

The Board found the regulation created a reimbursable state mandated cost and approved Arcade's claim. The Board apparently concluded the regulation did not "explicitly require three-person companies" but considered its effect nonetheless "was to remove the previously existing option of public fire departments to deploy two-person companies," and that this requirement "exceeded federal and prior state safety regulations."

The Division sought mandamus to review the Board's ruling. (See former § 2253.5 repealed Stats. 1986, ch. 879, § 44, No. 10, West's Cal.Legis.Service, p. 800; see now Gov.Code, § 17559; Code Civ.Proc., § 1094.5.) The superior court found the Board had abused discretion in allowing Arcade's claim and issued a peremptory writ of mandate directing the Board to set aside its decision.

Arcade appeals from the order granting the Division mandamus relief. In challenging the court's conclusion that Regulation 5144, subdivision (g), did not create state-mandated costs, Arcade contends the court (1) applied the wrong standard of review, (2) improperly considered new evidence and legal issues which were not presented at the administrative hearing, and (3) erred in ruling that section 2207, subdivision (f), did not apply.

I

Preliminarily, we set forth the applicable standard of review. In an administrative mandamus proceeding, we are bound by the Board's findings on all issues of fact within its jurisdiction which are supported by substantial evidence on the record. (See former § 2253.5; Gov.Code, § 17559.) The interpretation of an administrative regulation, however, like the interpretation of a statute, is a question of law ultimately to be resolved by the courts. (Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 310, 118 Cal.Rptr. 473, 530 P.2d 161; Skyline Homes, Inc. v. Occupational Safety & Health Appeals Bd. (1981) 120 Cal.App.3d 663, 669, 174 Cal.Rptr. 665; see also People ex rel. Fund American Companies v. California Ins. Co. (1974) 43 Cal.App.3d 423, 431, 117 Cal.Rptr. 623.)

Where the substantial evidence test applies, the superior court exercises an essentially appellate function in determining whether the administrative findings are supported by substantial evidence and the proceedings free from legal error; the scope of our appellate review is coextensive with that of the superior court. (Bank of America v. State Water Resources Control Bd. (1974) 42 Cal.App.3d 198, 207, 116 Cal.Rptr. 770; City of Sacramento v. State of California (1984) 156 Cal.App.3d 182, 190, 203 Cal.Rptr. 258, disapproved on other grounds in County of Los Angeles v. State of California (1987) 43 Cal.3d 46, 58, fn. 10, 233 Cal.Rptr. 38, 729 P.2d 202; see also Swaby v. Unemployment Ins. Appeals Bd. (1978) 85 Cal.App.3d 264, 269, 149 Cal.Rptr. 336.) We therefore focus our review on the administrative proceedings, declining to consider specific claims of error committed by the superior court.

We shall also consider, as a preliminary matter, whether a federal mandate or an equally or more restrictive pre-1973 state regulation exists which would bar Arcade's claim for reimbursement. (See §§ 2206; 2207, subds. (c), (f); former § 2253.2, subd. (b)(3).) Although these legal theories may not have been thoroughly developed by the Division in the administrative proceedings, we are not foreclosed from addressing them on appeal. (See City of Merced v. State of California (1984) 153 Cal.App.3d 777, 781, 200 Cal.Rptr. 642; Frink v. Prod (1982) 31 Cal.3d 166, 170-171, 181 Cal.Rptr. 893, 643 P.2d 476.) Such consideration will not involve receipt of evidence not before the Board. The Board found Regulation 5144, subdivision (g), exceeded the requirements of both federal and pre-1973 state safety regulations. Our review necessarily requires that we take judicial notice of any statutes and published administrative regulations which impact upon the contentions of the parties. (See Evid.Code, § 451, subds. (a), (b); Gov.Code, § 11343.6; 44 U.S.C. § 1507.) In any event, Arcade is not prejudiced by our consideration of these issues on appeal because, as will appear, we reject the Division's arguments that a federal mandate or a pre-1973 state regulation bars Arcade's claim.

II

The California Occupational Safety and Health Act (State OSHA; Lab.Code § 6300 et seq.), from...