Occupational Safety & Health Div. v. Loy Clark Pipeline, Co.

320 Or.App. 205

514 P.3d 544

OCCUPATIONAL SAFETY & HEALTH DIVISION, Petitioner,

v.LOY CLARK PIPELINE, CO., Respondent.

A171747

Court of Appeals of Oregon.

Argued and submitted April 1, 2022.

June 8, 2022

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

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

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

PAGÁN, J.

Petitioner, Oregon Occupational Safety and Health Administration (OR-OSHA) seeks review of a Workers’ Compensation Board (WCB) order, following a hearing before an administrative law judge (ALJ), which concluded that OR-OSHA failed to establish a violation arising from an excavation in northwest Portland. OR-OSHA alleged that employer, Loy Clark Pipeline Company, failed to obtain "locates" for underground utilities prior to digging at a work site.¹ In October 2016, employer's workers struck an underground natural gas line, causing a leak and, eventually, a series of explosions.

OR-OSHA advances a number of arguments on review; however, as we conclude that OR-OSHA is correct that the ALJ erred by not allowing OR-OSHA's amendment to the citation prior to hearing, we write only to address that assignment of error. Our resolution of that issue obviates the need to address OR-OSHA's arguments related to the ALJ's order on reconsideration and the ALJ's determination that employer had complied with the applicable safety rules. We reverse and remand.

Although the relevant facts are largely procedural, to provide context, we briefly summarize the background facts giving rise to this review.

BACKGROUND

In 2016, employer was performing excavation and utility work at a construction site in northwest Portland, near the intersection of NW 23rd Avenue and NW Glisan Street, including installation of an underground conduit and a new power pole on the north side of NW Glisan. Employer obtained "locate" marks for the underground utilities in that area on July 12, 2016. A photograph in the appellate record taken around July 12 depicts a yellow dashed paint marking from the street, crossing the north sidewalk of NW Glisan, and ending at a natural gas meter on the side of a building. On July 19, employer's crew removed a portion of the sidewalk, excavated, and installed several power conduits, before later covering the opening with a temporary asphalt patch. Notably, the marks that were on the portion of sidewalk that was removed were lost and no new marks were made on the asphalt patch.

In September 2016, employer had a separate project on the south side of NW Glisan Street; that project was not related to the July project. Employer obtained locate marks for the south side project before excavation.

On October 19, 2016, employer started work on another project on the north side of the street—this time to install a junction box for a Comcast line—in the same area as the July excavation. The foreman for the October job had not been on the July job, so, although he was aware of previous excavations in the area, he did not know the specific details. No new locate marks were made for the October job. When the crew arrived, the marks from the July 12 utility locate were faint and faded, in particular the yellow marks that indicated natural gas lines. The foreman observed the work site, saw some of the locate marks, and thought he could see "what was going where." All three of employer's workers saw markings for underground gas lines near the excavation site, but none of them thought the line was running through the area to be excavated. Using saws and a backhoe, the workers removed a portion of the asphalt patch and concrete sidewalk. As the foreman was using the backhoe to remove gravel underneath the sidewalk, the backhoe caught a natural gas line, causing a leak. A number of explosions occurred as a result, injuring eight people and causing more than $17 million in property damage.

Afterward, the foreman and another worker saw a yellow locate mark on the street curb and another yellow mark on the street that indicated a one-inch natural gas line near the excavation. The foreman had parked the backhoe over the locates from the July 2016 job, and so he had not seen them that morning. He testified that, had he seen those marks, he would have known there was a natural gas line in the work area.

OR-OSHA investigated the incident and noted that after the locate marks were placed in July, employer excavated in the area, installed conduit, and closed the excavation with temporary asphalt. One OR-OSHA officer noted that part of the July locate marks had been removed during the July job and had not been replaced. An OR-OSHA manager noted that the yellow natural gas mark on the curb was faint.

After the investigation, OR-OSHA issued employer a citation for violating 29 CFR § 1926.651(b)(1), which requires:

"The estimated location of utility installations, such as sewer, telephone, fuel, electric, water lines, or any other underground installations that reasonably may be expected to be encountered during excavation work, shall be determined prior to opening an excavation."

Under the statutory and regulatory authority created by the Oregon Safe Employment Act (OSEA), OR-OSHA "has promulgated rules setting safety and health standards for a vast range of workplaces and occupational activities."² OR-OSHA v. United Parcel Service, Inc. , 312 Or. App. 424, 432, 494 P.3d 959 (2021). OAR 437-003-0001(16)(b) adopts 29 CFR § 1926.651 in full.

In the original citation proposing $4,900 in penalties, OR-OSHA alleged:

"On October 19, 2016, the excavator operator struck a 1-inch steel natural gas line located at the northeast corner of NW Glisan at NW 23rd, causing an explosion in a nearby building and significant damage to other structures in the area. During this particular phase of the work, the employer did not obtain locates for the area in which the excavator damaged the 1-inch line. Locates had been done for other sections of the project."

Employer requested a hearing on the matter, and the parties engaged in discovery. About two years later, and approximately 30 days before the hearing was scheduled to take place, OR-OSHA filed an amendment to the citation. The amended citation alleged:

"On October 19, 2016, the employer's excavator operator struck a 1-inch steel natural gas line located underground near the northeast corner of NW Glisan at NW 23rd, which was a gas line that may reasonably have been expected to have been encountered. A resulting explosion occurred in a nearby building that caused significant damage to it and other structures in the area. During this particular phase of the work, prior to opening the excavation, the employer did not adequately determine through locates or other acceptable means the estimated location of the gas line that was damaged. Locates had been done for other sections of the project."

Employer moved to vacate the amended citation, arguing that "OR-OSHA decided that it had the right to unilaterally amend the citation in this case without first getting authorization from the forum," and that the amendment was "in essence, a brand new citation." According to employer, the statement of facts upon which the citation was based "constitute[d] a new and different manner in which Employer allegedly violated 29 CFR 1926.651(b)(1)," and the new citation was made well after the 180-day limit set out in ORS 654.071(3).

OR-OSHA responded that, under the applicable administrative rules, in particular, OAR 438-085-0526, OR-OSHA had the right to amend the citation until the date and time set for hearing, and that the amendment "simply describe[d] with more particularity [employer's] conduct, which OR-OSHA intends to prove at hearing."

The ALJ determined that the rule was "conditional," that is, "providing the ALJ with discretion to not allow such amendments." Moreover, the ALJ determined that the amendment "change[d] the nature of the employer's conduct," was "substantially different" from the original citation, and therefore was a "new" citation when compared to the original. The ALJ struck the amendment and proceeded to hearing on the original allegation.

A hearing was conducted and the ALJ ultimately dismissed the citation, having determined that employer had obtained locates prior to excavation. This petition for review followed the ALJ's order and later reconsideration. OR-OSHA raises three assignments of error. The first issue relates to an amended order issued by the ALJ after OR-OSHA filed this petition for review. OR-OSHA argues that the ALJ did not have jurisdiction to issue an amended order after the petition for review was filed.³ Second, OR-OSHA assigns error to the ALJ's determination that employer did not violate 29 CFR § 1926.651(b)(1). Finally, OR-OSHA assigns error to the ALJ's decision to strike the amended citation, requiring OR-OSHA to proceed at the hearing on the original citation. As noted above, because we conclude that the decision to strike the amended citation was error, we do not reach the merits of OR-OSHA's first and second assignments of error.

ANALYSIS

On review, as framed by the parties, we must first consider what standard of review applies. OR-OSHA contends that a legal error standard of review applies to the ALJ's interpretation of OAR 438-085-0526. Employer contends that, because OAR 438-085-0526 is a rule promulgated by the WCB, the board, acting through the ALJ, interpreted the rule and such interpretation is entitled to deference if plausible and not contrary to law.

Courts are authorized to overrule an agency's interpretation of a rule if an agency has "erroneously interpreted a provision of law." ORS 183.482(8)(a). The relevant provisions of law may include administrative rules. Don't Waste Oregon Com. v. Energy...