Oregon Occupational Safety & Health Division ) Docket No: SH-93179 ) Plaintiff ) CITATION NO: C5730-001-93 MODOC LUMBER CO ) Defendant ) ORDER OF DISMISSAL A hearing in this matter was scheduled for November 28, November 29 and November 30, 1994 in Medford, Oregon before Philip A. Mongrain, Referee. On October 14 counsel for Modoc Lumber Company, George Goodman, submitted a motion to dismiss three of the four violations described in Citation No. C5730-001-93. On October 28 counsel for OR-OSHA, Armonica Gilford, submitted a response and on November 17 Mr. Goodman replied. Following a telephone conference on November 21, submission of exhibits by OR-OSHA on November 22 and a telephone conference on November 23, counsel were advised that the motion would be granted. The issues represented by the remaining alleged violation were then settled and a formal hearing was not convened. Exhibits 1-29 were submitted as exhibits by Ms. Gilford on November 22. A number of them were discussed during the telephone conference of November 23. For purposes of the ruling on the motion, Exhibits 1-24 and Exhibit 29 are admitted in evidence.
Were alleged violations 1-2, 2-3 and 2-4 issued without authority because of OR-OSHA's failure to conduct a valid inspection relative to those alleged violations?
On October 5, 1992 Duane Menestrina, a lumber carrier driver for Modoc Lumber Company, was killed when the carrier he was driving tipped over (Exhibits 6, 7 (page 1)). On October 6 Safety Compliance Officers Cliff Crawford and Dennis Dixon appeared at Modoc Lumber Company to conduct an investigation (Exhibits 3, 22 (pages 1, 2)). Mr. Crawford presented his credentials and advised the company vice president, Tom Shaw, that the investigation was " accident investigation, it's a specific type of inspection." (Exhibit 22 (pages 1, 2)). After so advising, Mr. Crawford discussed a required general checklist regarding elements of company safety, including confirmation that a written "lock out/tag out" program was in place (Exhibits 5 (page 1), 22 (pages 2-4)). Mr. Crawford then asked Mr. Shaw and Rick Hubble, the company safety director, a series of questions specifically directed to the circumstances of the carrier accident and indicated that he would need a list of people "in that department" so he could set up some interviews (Exhibit 22 (pages 1, 2)). Mr. Crawford indicated that when doing an accident investigation, "...if we find violations, proposed violations why then we'll issue citations for that." (Ex. 22, page 2). After the opening conference Mr. Dixon and Mr. Crawford interviewed the following people: William Erickson, a trimmerman; Bob Bassett, a green stacker; Travis Pace, a cleanup person who had worked at several other positions; Shawn Hardt, a green-chain puller; Todd Hamblin, a green-chain puller; Doug Hicks, a green-chain puller; Jerry Angle, the sawmill night supervisor; Troy Payne, a forklift and carrier driver; Lloyd Waldrup, an assistant trimmerman; Ken Milani, a green stacker/operator and relief carrier driver; Tonya Borner, a deck saw operator; Tom Shaw, the company vice president; Joseph Hubbard, a sticker placer on the green-chain stacker; Ralph Beard, the green sorter and dry kilns supervisor; Don Snedden, an equipment mechanic (Exhibits 8-21, 23, 24). All were asked general questions pertaining to one or more of the following subjects: company safety programs, company accident procedures, company training, company supervision, company discipline, carrier operation and maintenance, and Mr. Menestrina and his operation of the lumber carrier. Several of the non-management employees were also asked specific questions regarding the functioning of the company lock out/tag out procedures (Exhibits 10 (pages 1-7), 13 (pages 14, 15), 14 (pages 12, 13), 17 (pages 12-15), 18 (pages 7-10), 19 (pages 10-22)). Arising from those questions Ms. Borner described her method of unplugging a chipper (Exhibit 19 (pages 11-14)). The safety compliance officers concluded that proper lock out/tag out procedures were not followed in different areas; that management allowed and had knowledge of potential hazards when employees were cleaning plugups and performing maintenance on equipment (Exhibit 5, page 8). Modoc management agreed to remedy the chipper hazard by the morning of October 12, 1993 and supplied photos and documentation relative thereto (Exhibit 5, page 4). Management was very surprised there was a lock out/tag out problem and "immediately got on the problem and remedied it" (Exhibit 5, page 5). A citation was issued on March 30, 1993 citing Modoc Lumber Company for a violation resulting from investigation of Mr. Menestrina's accident and additionally citing the employer for three violations not related to the accident investigation and pertaining to faulty lock out/tag out procedures and employee opening of a hood on the chipper (Exhibit 1 (pages 3-5)).
(1) The employer consented only to an inspection of the fatal lumber carrier accident of October 5, 1992. (2) OR-OSHA did not seek the employer's consent to expand the purpose, nature and intended scope of the inspection nor did it reconvene an opening conference to inform the employer that the inspection was being expanded.
OR-OSHA, in carrying out its mandate relative to enforcement of the Oregon Safe Employment Act, has the authority to enter without delay and at reasonable times any place of employment for the purpose of inspection and investigation. ORS 654.067(1)(2). Following an inspection a citation must be issued for any violation of a safety law or regulation believed to exist. ORS 654.071(1). Except in the case of an emergency or a place open to the public the employer has the right to deny access to its premises for the purpose of an inspection or investigation. ORS 654.067(3). In such a case OR-OSHA must obtain an inspection warrant, which can be issued only upon cause that includes the purpose for which the inspection or investigation is to be made and the basis upon which cause exists to inspect. ORS 654.067(3), 654.206(1). That extraordinary procedure was not required here, of course, because the employer consented to an inspection. Therefore, it is important to determine to what kind of an inspection the employer consented. The Department of Consumer & Business Services (formerly the Department of Insurance and Finance) has adopted certain administrative rules pertaining to inspection procedures, and OAR 437-01-075 (1) provides that the compliance officer shall, if possible, conduct an opening conference including the employer and shall, among other things, (1) explain the purpose, nature and intended scope of the inspection, and (2) give the employer representative an opportunity to accompany the compliance officer on the inspection. That was done when Mr. Crawford explained that the investigation was an accident investigation, "...a specific type of inspection...we'll be taking some photos and videos of the accident and the like...if we find violations, proposed violations why then we'll issue citations for that." (Exhibit 22, page 2). Although Mr. Crawford discussed some other items in a very general manner, it is clear that none of those items was identified at that time as part of the inspection or as a possible source of violations (Exhibit 22, pages 1-4)). Clearly, by consenting to an inspection and not availing itself of its statutory right to require OR-OSHA to obtain an inspection warrant, the employer was consenting to an inspection limited in purpose, nature and scope to the fatal lumber carrier accident. The general and specific questions addressed by Mr. Crawford and Mr. Dixon that clearly or even arguably could pertain to the fatal accident were certainly within the scope of the inspection that had been explained to the employer and to which the employer had consented. However, the specific questions asked by Mr. Crawford and/or Mr. Dixon that pertained to functioning of the lock out/tag out program were clearly outside the scope that had been explained to the employer at the opening conference and to which the employer had consented. In my opinion, it cannot reasonably be doubted that such questions would have been outside the scope of an inspection warrant issued upon the probable cause that a fatal accident had occurred and was reasonably believed to be necessary to determine the cause of the accident and whether any violation of a safety or health statute or regulation had occurred. Similarly, such questions were outside the scope of the employer's consent. The inevitable result of the lock out/tag out inquiries by Mr. Dixon and Mr. Crawford and the answers thereto was to expand the purpose, nature and scope of the inspection. In my opinion, at that point the compliance officers, in order to satisfy the mandatory language of OAR 437-01-075 in this non-emergency situation, were required to either advise the employer of an intent to expand the inspection or convene a second opening conference. Either procedure would have provided to the employer the opportunity to consent or revoke its original consent and require an inspection warrant. Either circumstance would have allowed the employer to be informed of what was happening. The importance of the employer's awareness of an expanded scope of the inspection is apparent from ORS 654.067(4), which provides that an employer representative ". . .shall be given an opportunity to accompany the director during the inspection of any place of employment for the purpose of aiding such inspection." (emphasis supplied). Did the employer have an opportunity to aid the inspection of the lock out/tag out procedures and any chipper hazard? The clear answer is "no", considering the fact that no management personnel were asked any specific questions pertaining to functioning of the lock out/tag out procedures and the chipper. Employer knowledge is a prerequisite to the finding of a violation. Skirvin v. APD, 32 Or App 109 (1978). An "inspection" is defined by OAR 437-01-015 (35) as "an official examination of a place of employment by a Compliance Officer to determine if an employer is in compliance with the Act." In view of the Skirvin prerequisite, absent an opportunity by the employer's management and supervisory personnel to provide interviews relative to functioning of the lock out/tag out procedures and the chipper, there could be no inspection that would determine if a violation had occurred. Such an inspection was foreclosed because the employer was denied the opportunity to consent to an expansion of the scope of the inspection. As Mr. Goodman correctly points out, an agency's authority is limited by and the agency is bound by its enabling legislation and its own administrative rules. Ochoco Construction v. Department of Land Conservation & Development, 56 Or App 36 (1982); APD v. Asana, 110 Or App 103 (1991). Such limitations protect against arbitrary and inaccurately informed government conduct. Dika v. Department of Insurance and Finance, 312 Or 106 (1991). Properly enacted administrative rules and regulations have the same force and effect as statutes. Bronson v. Moonen, 270 Or 469 (1974). An agency's failure to follow procedure mandated by statute or, by necessary implication of the above principle a procedure mandated by administrative regulation, invalidates an administrative act. Dika, supra at page 109. In my opinion, for the reasons previously discussed the compliance officers' failure to properly expand the purpose, nature and intended scope of the inspection rendered the inspection incomplete and therefore invalid insofar as lock out/tag out procedures and a chipper hazard. Absent a valid inspection to determine if the employer was in compliance, which is the criterion for issuance of a citation pursuant to ORS 654.071(1) and OAR 437-01-015(35), surely no citation for violations could be valid. Ms. Gilford argues that ORS 654.025 grants broad authority to OR-OSHA to enforce and administer all safety and health laws as related to employment, and to do "all things...necessary or convenient..." in the exercise of that authority. That is, of course, a correct statement, but those are general principles that in my opinion must bow to the specific statutory and regulatory requirements pertaining to the elements of an opening conference. Ms. Gilford argues that dismissal is a draconian sanction for a "purely technical" misstep. However, that would appear to be nothing more than an argument that there was substantial compliance with the regulation requirements. "Substantial compliance" requires (1) an effort to comply fully with the statute or regulation, and (2) a failure to comply amounting to a minor error or irregularity that does not affect the substance of the statute or regulation. Gugler v. Baker Co. Ed. Serv. Dist., 305 Or 548, 557 (1988). Here, there was no effort at all to comply with the regulation insofar as the total purpose, nature and intended scope of the inspection, and that failure produced an incomplete inspection that foreclosed the employer's input of information relative to a determination of employer compliance with the Oregon Safe Employment Act. Therefore, the omission was more than a "purely technical" misstep. Accordingly, the sanction of dismissal is not in fact excessive.
Violations 1-2, 2-3 and 2-4 were issued without authority.
IT IS HEREBY ORDERED that items 1-2, 2-3 and 2-4 set forth in Citation No. C5730-001-93 are dismissed. NOTICE TO ALL PARTIES: If you are dissatisfied with the Order you may, not later than SIXTY (60) days after the mailing date on this Order, request a review by the Court of Appeals, Third Floor, Justice Building, Salem, Oregon 97310, pursuant to ORS 183.480, 183.482. A request for review shall be mailed to the Court of Appeals at the above address with copies of such request mailed to all other parties to this proceeding. Failure to mail such a request for a review within SIXTY (60) days after the mailing date of the Order will result in LOSS OF RIGHT TO APPEAL FROM THIS ORDER. Entered at Medford, Oregon on December 6, 1994 WORKERS' COMPENSATION BOARD Philip A. Mongrain, Referee