Oregon Occupational Safety & Health Division v. Moore Excavation, Inc.

Citations: 257 Or. App. 567; 307 P.3d 510; 2013 WL 3744214; 2013 Ore. App. LEXIS 879Docket: 0800169SH; A149283

Court: Court of Appeals of Oregon; July 17, 2013; Oregon; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

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The Oregon Occupational Safety and Health Division (OR-OSHA) is contesting a ruling by an administrative law judge (ALJ) that vacated a citation against Moore Excavation, Inc. for failing to properly tag a damaged portable ladder, violating 29 CFR section 1926.1053(b)(16). Moore admitted to the violation but the ALJ found that OR-OSHA did not demonstrate that it was "reasonably predictable" a worker would be exposed to the hazard. OR-OSHA argues that it only needed to prove that the regulation was violated and that employees had access to the hazardous condition, claiming that it only had to show possible exposure, not reasonable predictability. However, the judicial review concluded that the ALJ appropriately imposed the reasonable-predictability standard for proving employee exposure. The ALJ's decision to vacate the citation was upheld, as OR-OSHA failed to meet this burden.

The incident occurred in January 2008 during Moore's water line repair project in Turner, where an OR-OSHA inspection was conducted by Safety Compliance Officer Weaver. At that time, most work was completed, and only a part of the site was active. Weaver discovered a damaged 24-foot extension ladder in an inactive area, which had not been tagged for safety despite being visibly damaged from an incident a week prior. The ladder was located in a fenced area not currently in use for active work, and after being pointed out by Weaver, was promptly removed by a foreman.

Weaver cited Moore for an "other than serious violation" due to its failure to tag and remove a damaged ladder from the worksite, imposing a $0 penalty. Moore appealed to OR-OSHA, leading to a hearing before an Administrative Law Judge (ALJ) on August 5, 2010. The ALJ vacated the citation, questioning whether mere possibility of exposure was sufficient to support the citation. OR-OSHA sought reconsideration, and on April 20, 2011, the ALJ affirmed the citation, referencing OR-OSHA v. David A. Mowat, which clarified the burden of proof regarding employee exposure to hazards. 

Moore then requested reconsideration, resulting in another ALJ vacating the citation again on July 28, 2011. This ALJ concluded that the "zone of danger" was limited to the damaged ladder's use and that a violation would exist only if it was reasonably predictable that an employee would attempt to use the ladder. Despite conflicting testimony about the locked status of the worksite gate, there was insufficient evidence that the site was active when the defective ladder was present.

OR-OSHA is now seeking judicial review, arguing that the ALJ incorrectly required proof of reasonably predictable employee exposure to support the citation, stating it only needed to demonstrate a regulation violation and employee access to the hazardous condition. Moore accepts that a hazard existed but contends OR-OSHA did not prove reasonably predictable employee endangerment. Moore maintains that "reasonable predictability" is the correct standard for establishing employee exposure and supports the ALJ's conclusion that OR-OSHA did not meet its burden of proof under this standard. The summary also distinguishes between proof of "hazardousness" and proof of "exposure," referencing the Mowat case for clarification.

The ALJ vacated a citation against an employer, citing a lack of proof that the employer's violation of a safety regulation created a hazard for employees. However, the decision was reversed, establishing that federal law differentiates between rules that explicitly or implicitly consider hazardousness. The regulation in question presumed that failing to conduct excavations according to specified options creates a cave-in hazard, meaning OR-OSHA did not need to provide evidence of an actual hazardous condition at the work site as part of its prima facie case. Similar reasoning applied to a regulation requiring employers to mark and remove damaged equipment, where it was presumed that unmarked damaged equipment poses a hazard if accessible. Despite not needing to prove a hazardous condition, OR-OSHA still had to demonstrate employee exposure to that hazard. Previous cases, such as Mowat, highlighted that when a hazard is present throughout a worksite, employee exposure is implicit, whereas in this case, with a damaged ladder, exposure was not automatically certain. The court agreed with the ALJ that OR-OSHA did not have to prove the ladder's hazardousness, which the employer did not dispute. The issue of employee exposure had not been previously addressed directly but had been discussed in prior cases. The court noted that evidence could infer employee exposure without needing to observe actual exposure at the time of inspection, differentiating it from the hazardousness element.

To establish a violation, OR-OSHA must demonstrate that an employee faced an unsafe condition due to non-compliance with safety standards. The employer acknowledged improper spooling of wire but asserted that OR-OSHA did not prove employee endangerment. The referee concluded that there was no evidence showing actual exposure of employees to hazards from the improperly spooled wire; the evidence only indicated a potential hazard. Testimony indicated that properly spooled wire could also pose risks, and without a "pull test," the extent of any damage remained undetermined. OR-OSHA argued that the referee's requirement for proof of "actual hazard" was legally flawed, asserting that a violation can occur with evidence of potential risk, even without actual exposure. The referee's decision emphasized insufficient evidence of any risk to employees, leading to the dismissal of the citation. Additionally, it was noted that the case law does not obligate OR-OSHA to prove actual exposure to a hazardous condition. The OSEA is aligned with federal OSHA regulations, and federal case law provides guidance, particularly concerning the standards for proving employee exposure. The OSHRC, influenced by federal courts, has established that proof of actual exposure is not necessary due to OSHA's preventative objectives, leading to the adoption of a "rule of access" standard based on reasonable predictability for potential hazards.

A reasonable predictability standard for access to hazards is favored over a requirement for proof of actual exposure, as it better serves the purposes of the Act. The Occupational Safety and Health Review Commission (OSHRC) has consistently applied this standard, which allows for establishing exposure by demonstrating that it was reasonably predictable that employees could be in the "zone of danger" during their normal work duties. The standard, derived from federal cases, requires proving that one or more employees had been, were, or would be exposed to the hazard, and has been endorsed by the majority of federal appellate courts.

Contrarily, the cases cited by OR-OSHA do not support its position, either contradicting it or failing to address the appropriate standard. The distinction between "access" and "exposure" is negligible in this context, focusing instead on whether exposure must be reasonably predictable. OR-OSHA's proposed standard aligns with the prevailing federal standard, which includes a reasonableness component.

Furthermore, OR-OSHA acknowledged that while anything is theoretically possible, establishing a purely theoretical access standard would undermine its burden of proof and create a strict liability scenario. Ultimately, the Administrative Law Judge (ALJ) correctly determined that OR-OSHA did not meet its burden of proving employee exposure, as the conditions surrounding the ladder—located in a restricted, inactive area of a large worksite—did not support a reasonable prediction of exposure. Speculative assertions about potential emergency use do not suffice for establishing reasonably predictable exposure.

Evidence presented by OR-OSHA regarding supervisory employees having access to a locked area and the presence of footprints was deemed speculative and insufficient. OR-OSHA did not demonstrate that any supervisory employee was unaware of a damaged ladder or that the footprints were made by individuals who did not work in the area. As a result, OR-OSHA failed to prove it was reasonably predictable that a worker would enter the restricted area to use the ladder, which would expose them to potential hazards. The Administrative Law Judge (ALJ) was found to have correctly applied the standard for employee exposure, leading to the affirmation of the order. 

According to ORS 654.290(2)(b), the ALJ's ruling is a final order for judicial review. The relevant regulation (29 CFR § 1926.1053(b)(16)) mandates that defective portable ladders must be marked or tagged and withdrawn from use until repaired. Testimony indicated that the area was locked and marked with "Do Not Enter" signs, yet there were footprints despite no workers being present during the inspection, and no investigation followed regarding their origin. Concerns were raised about the ladder not being properly removed from service, but these claims lacked supporting evidence. The case was later reassigned to another ALJ after the initial judge’s passing.

Portable ladders with structural defects must be marked or tagged as defective and withdrawn from service until repaired. Common defects include broken or missing rungs, cleats, steps, split rails, and corroded components. The legal standard adopted by various states, influenced by federal OSHA guidelines, emphasizes "reasonable predictability" over mere hypothetical risk, requiring a more substantial basis than mere possibility for determining employee exposure to hazards such as asbestos. To establish that employees have been or are likely to be in a dangerous situation, the relevant agency must provide credible evidence demonstrating this reasonable predictability concerning employee access to hazardous conditions.