323 P.3d 356
Or. Ct. App.2014Background
- Employer seeks judicial review of a final order approving an OR-OSHA citation for violating 29 CFR 1926.451(g)(1)(vii) during scaffold dismantling.
- The employee fell 40 feet while dismantling a scaffold; fall protection was not tied off.
- OR-OSHA cited under (g)(1)(vii); (g)(2) not cited; issue is whether (g)(1)(vii) applies to dismantling.
- ALJ ruled (g)(1) applies; employer challenged; board affirmed; employer seeks review.
- Court interprets the rule, rejects OR-OSHA’s interpretation, and concludes (g)(2) governs erectors/dismantlers; dismissal ordered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does (g)(1)(vii) apply to scaffold erectors/dismantlers? | Employer argues (g)(1) does not apply; (g)(2) controls. | OR-OSHA argues (g)(1) applies and (g)(2) only sets feasibility/safety determinations. | (g)(1) does not apply; (g)(2) governs erectors/dismantlers. |
| Is OR-OSHA's interpretation of the rule plausible and entitled to deference? | OR-OSHA's interpretation is plausible and should be given deference. | Court should defer if plausible; here interpretation is not plausible. | OR-OSHA's interpretation rejected as not plausible; deference academic. |
| What does the adoption history say about applying (g)(2) to erectors/dismantlers? | History supports blanket use of (g)(1) originally, with (g)(2) delaying protection. | History shows site-specific feasibility and safety determinations for erectors/dismantlers. | (g)(2) requires feasibility-based protection where feasible and safe. |
| What is the court's ultimate disposition on the citation? | If (g)(1) doesn't apply, citation should be dismissed. | Court should uphold the citation under (g)(1). | Citation dismissed; reverse ALJ; remand with instructions to dismiss. |
Key Cases Cited
- Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132 (1994) (deference to agency interpretations; standard explained)
- State v. Teixeira, 259 Or App 184 (2013) (statutory interpretation framework; context and history considered)
- State v. Cooper, 319 Or 162 (1994) (considering federal legislative history for state rule interpretation)
- Or-OSHA v. Moore Excavation, Inc., 257 Or App 567 (2013) (agency interpretation of adopted federal rule reviewed)