I. BACKGROUND
The three state agencies relevant to these proceedings are all branches of California's Department of Industrial Relations that are involved in the regulation of workplace health and safety. The Standards Board promulgates regulations
Section 3395-the regulation here at issue-sets forth requirements for heat illness prevention in outdoor places of employment and was initially adopted by the Standards Board in 2005 as an emergency regulation after an unusual number of reports of serious occupational heat-related illnesses and deaths that year. Thereafter, the Standards Board initiated a rulemaking action to promulgate a permanent version of section 3395, issuing an Initial Statement of Reasons (See Standards Board, Initial Statement of Reasons, New Section 3395 : Heat Illness Prevention (ISOR).) In 2006, the Standards Board issued its Final Statement of Reasons, responding to oral and written
AC Transit operates transit buses throughout Alameda County and adjoining areas. Bus routes range from 15 minutes to over an hour, with a small recovery time scheduled at the end of each route, which may or may not be available to the driver depending on whether he or she is running on schedule. Drivers can be behind the wheel driving for up to ten hours a shift. During relevant timeframes, AC Transit employed between 1200 and 1900 drivers and operated 695 buses, only 20 percent of which were air-conditioned. In November 2007, the Division cited AC Transit for three alleged violations of section 3395 with respect to the operation of its non-air-conditioned buses: (1) failure to supply adequate drinking water to drivers; (2) failure to make shade continuously available for drivers; and (3) failure to develop heat illness procedures and related training for employees and supervisors. (See § 3395, subds. (c), (d), & (e).)
AC Transit appealed, and an administrative hearing before an ALJ was subsequently held over the course of several days. During the hearing, several bus drivers testified that it was normally hotter inside the buses than outside during the daytime, even when the exterior temperature was in the 70s. They further reported that some of the non-air-conditioned buses
After considering the evidence presented, the ALJ concluded that "the term 'outdoor places of employment' [in section 3395 was] a relatively new term, without a proven 'common usage' and no 'common law meaning.' " Moreover, after a review of various dictionary definitions of "outdoor," the ALJ further found that "there is more than one common meaning" for that term. The ALJ thus reviewed the regulatory history of section 3395 in an attempt to ascertain its underlying purpose and decided that the "weight of the evidence" argued against defining "outdoor places of employment" to include "the interiors of municipal transit buses." He therefore dismissed the citations and vacated the corresponding penalties and abatement requirements. In response, the Division filed a petition for reconsideration with the Appeals Board on the "sole issue" of whether "drivers of non-air-conditioned public transit buses are excluded from coverage" under section 3395.
In its Decision After Reconsideration (DAR), the Appeals Board agreed with the conclusion of the ALJ, albeit under different reasoning. After incorporating the ALJ's Summary of Evidence, the Appeals Board declared that the plain meaning of section 3395 confirmed that bus interiors are not outdoor places of employment for purposes of the regulation. Rather, based on a review of dictionary definitions, the Appeals Board opined that "the ordinary and commonsense meaning of the word 'outdoor' means literally to be 'out of doors,' or in an open air environment." In making this determination, the Appeals Board expressly rejected the Division's assertion that non-air-conditioned buses could qualify as outdoor places of employment based on the regulatory history of section 3395, stating: "We do not find any support in the rulemaking record or the regulation's text itself that would support that the meaning of the word 'outdoor' turned on the existence or non-existence of a cooling device."
Refusing to accept this result, the Division filed a petition for writ of mandate in Alameda County Superior Court, asserting that the Appeals Board's conclusions in its DAR amounted to a prejudicial abuse of discretion and were clearly erroneous. After briefing and hearing, the trial court agreed, issuing an order granting the Division's petition (Order). In particular, the trial court concluded that the Appeals Board erred in limiting the definition of "outdoor" for purposes of section 3395 to " 'out of doors' or 'in an open
Timely notices of appeal were subsequently filed by both AC Transit and the Appeals Board, bringing the matter before this court.
II. DISCUSSION
A. Rules of Interpretation and Standard of Review
"The interpretation of a regulation, like the interpretation of a statute, is, of course, a question of law" and is therefore subject to our de novo review. ( Carmona v. Division of Industrial Safety (1975)
In determining the issuing agency's intent, we look first to the language of the regulation itself. ( Katz , supra ,
With all of the foregoing principles in mind, we address the task at hand: interpreting the term "outdoor" in the context of the Standard Board's heat illness prevention regulation, section 3395.
B. Application of Section 3395 to Non-Air-Conditioned Vehicles
If one thing is clear in this case, it is that the term "outdoor places of employment" as used in section 3395 is not clear. Thus, contrary to the conclusion reached by the Appeals Board in this matter, there is no dispositive "plain meaning" that can be relied upon when determining its import. Rather, "outdoor" can be defined variously as: something "[t]hat is done, exists, lives, or is used, out of doors, without the house, or in the open air" (X Oxford English Dict. (2d ed. 1989) p. 1011); "existing, happening, or done outside a building" (Cambridge Dict. < https://dictionary.cambridge.org/us/dictionary/english/outdoor#dataset-american-english
Because the plain language of the regulation is not dispositive, we turn next to the relevant regulatory history. (See J.G. Boswell Co . (CALOSHA, Feb. 21, 1991) OSHAB 90-R2D5-284 [
Despite a number of requests after issuance of the ISOR, the Standards Board expressly declined to expand section 3395 to indoor places of employment. (FSOR at pp. 6-7, 50-51, 54.) Although the Standards Board recognized that "risk of heat illness is not limited to outdoor work environments, and that in fact some of the most severe exposures to heat can occur in artificially heated environments," it believed that the "vast majority" of serious cases had occurred "where the employee is working out of doors." (FSOR at p. 6.) The Standards Board indicated its intent to study indoor environments at a later time. (Id. at p. 7.)
There are, moreover, additional statements in the regulatory history that further support this view. For instance, in response to a request that work vehicles used for extended travel be required to have working air conditioning systems during periods of extreme heat, the Standards Board opined: "The proposed standard would apply to non-air-conditioned work vehicles used for extended travel during periods of extreme heat. Employees traveling in these conditions are entitled to all of the protections provided by the standard including access to shade . The standard specifically states, 'Shade is not adequate when heat in the area of shade defeats the purpose of shade, which is to allow the body to cool. For example, a car sitting in the sun does not provide acceptable
It is true that the emergency version of section 3395"limited application of its provisions to 'outdoor places of employment at those times when the environmental risk factors for heat illness as defined in (b), are present .' " (See ISOR at p. 2, italics added.) However, as stated in the ISOR, "[t]his limitation is not included in the proposed permanent rule because of the variability of environmental risk factors and the resulting difficulty of predicting with confidence when environmental risk factors for heat illness may be present." (Ibid .) And the FSOR expressly refused to reinsert similar language on the same grounds. (FSOR at pp. 3, 15.) Thus, section 3395 is intended to apply to "all outdoor places of employment in California year round, whether or not there is any risk of heat illness." (FSOR at p. 20; see also id . at p. 8 [noting Standards Board's belief that "requiring all employers with employees working outdoors to determine the WBGT [Wet Bulb Globe Temperature] on a continuous, or even intermittent, basis would not substantially contribute to control of employee risk of heat illness while at the same time consuming resources that could have a greater effect implementing control measures, such as providing readily available drinking water along with shade and other means of cooling"].)
The Appeals Board argues that this regulatory history suggests that the Standards Board deliberately avoided any language in the regulation that would limit its application based on the presence or absence of environmental risk factors and that the trial court's proposed definition-stating that "if an enclosure or structure does not provide sufficient environmental protections to be considered 'indoor' then it is 'outdoor' "-does exactly that, contrary to the intent of the Standards Board. And, indeed, the trial court appears to have relied on these aspects of the regulatory record in concluding that the history contained "contrary indications" regarding the appropriate definition of outdoor. We
In addition, we are unpersuaded by the Appeals Board's argument that the trial court in this case created a two-pronged test that is contrary to the regulatory language and history. For instance, the Appeal Board contends at length that if outdoor is defined as "not in a building" in accordance to the first prong of the trial court's test, then all work vehicles-whether air-conditioned or non-air-conditioned-as well as underground worksites must be considered outdoor places of employment, contrary to the position of the Division and the regulatory history.
We do not, however, view the trial court's definition as bifurcated in this way. Rather, outdoor is defined simply as outside of a building, a common meaning of the word. It is only in determining what types of non-traditional structures or enclosures should be deemed buildings for purposes of this standard that the regulatory history expressly indicates the need to consider whether the structures or enclosures "significantly reduce the net effect of the environment risk factors that exist immediately outside." If they
We determine, then, that the regulatory history in this matter not only strongly supports the interpretation of "outdoor places of employment" adopted by the trial court-which is broad enough to include non-air-conditioned transit buses-but also speaks unambiguously on that issue and is therefore conclusive.
Moreover, the trial court's interpretation of section 3395 is consistent with the underlying purpose of the entire regulatory scheme of which it is a part. Specifically, in the particular context of workplace health and safety here at issue, our high court has reviewed the statutory structure and-noting that the relevant provisions "speak in the broadest possible terms"-has concluded that "the terms of the legislation are to be given a liberal interpretation for the purpose of achieving a safe working environment." ( Carmona , supra , 13 Cal.3d at pp. 312-313,
Finally, although not necessary to our conclusion, we note that the current version of section 3395 supports our construction of the term "outdoor."
In sum, we find the trial court's definition of "outdoor" to be consistent with the language of section 3395 and amply supported by its regulatory history. Moreover, this broader construction comports with the underlying purpose of the entire statutory scheme: the achievement of safe working environments. (
However, in its Order granting the Division's petition for writ of mandate, the trial court-after setting forth the "proper" definition of outdoor for purposes of section 3395 -went on to instruct the Appeals Board to determine on remand "whether a bus is physically 'outdoor,' whether employment in a bus is consistently or only intermittently 'outdoor,' and whether AC Transit provided water, shade or a shade equivalent, [and] appropriate training." We agree that the Appeals Board must determine on remand whether AC Transit's non-air-conditioned buses are "outdoor" places of employment for purposes of section 3395. Specifically, as discussed above, the Appeals Board should consider whether the buses at issue "significantly reduce the net effect of the environment risk factors that exist immediately outside." (FSOR at p. 28.) If they do not, they are outdoor worksites subject to section 3395. The Appeals Board need not, however, determine on remand whether employment as a bus driver on these non-air-conditioned buses is only intermittently outdoors as the trial court suggests. Rather, the Standards Board has indicated that even work that is only intermittently outdoors is covered by section 3395 and that "it is the responsibility of the employer to determine if the time spent indoors satisfies the requirements for an adequate supply of water and shade for preventative recovery periods, thus leaving the employer with an obligation to provide training." (FSOR at p. 3.) Finally, the administrative record is clear that AC Transit never argued that it had complied with section 3395 either before the ALJ or the Appeals Board. Thus, it has forfeited this potential defense and is not entitled to raise it on remand.
The Order and related Judgment are affirmed in part and reversed in part as set forth herein. The trial court is instructed to vacate the related Writ and issue a new writ of mandate in its place directing the Appeals Board to reconsider its DAR in light of this opinion. Each party to bear its own costs.
We concur:
STREETER, ACTING P.J.
SMITH, J.
Notes
The Standards Board is not a party to these proceedings.
The 2006 version of section 3395 is the operative version of the regulation for purposes of this appeal, and all unidentified references to section 3395 shall be to the 2006 version. Section 3395 was subsequently amended twice, in 2010 (2010 version) and 2015 (current version). (See history following Cal. Code Regs., tit. 8, § 3395.) We discuss the relevance of later iterations of the regulation below. Like the 2006 version of section 3395, however, both the 2010 version and the current version cover "all outdoor places of employment," and neither define the phrase. (See Cal. Code Regs., tit. 8, § 3395 ; former Cal. Code Regs., tit. 8, § 3395, subd. (a), Register 2010, No. 41 (Oct. 5, 2010).)
Although this request was made by the California Rural Legal Assistance Foundation, there is no indication that the Standards Board's statements in response are limited to agricultural transport vehicles as the Appeals Board and the DAR suggest.
While AC Transit suggests that this interpretation, if adopted, would apply to "every driver of every vehicle" doing the "work" of driving, such a construction is obviously overbroad as the regulation is clearly targeted at outdoor places of employment . Thus, it would only cover employees who are required to drive or ride in vehicles during the course of their employment, making such vehicles a worksite.
The Appeals Board misreads the regulatory history to the extent it asserts that the FSOR specifically declined to extend the protections of section 3395 to air-conditioned vehicles. Rather, the referenced statement in the FSOR-which we quote in full above-provides only that the Standards Board would not consider a requirement that all vehicles provide air conditioning because that suggestion had not been adequately vetted during the rulemaking process.
Because we find the rulemaking history both dispositive and consistent with the regulatory language, we need not reach the issue of which agency's interpretation, if any, is entitled to greater deference in this context, a question discussed at length by the trial court and strongly disputed by the parties. As stated above, "the ultimate resolution" of this question of regulatory interpretation "rests with the courts." (Carmona , supra ,
AC Transit's pending motion for judicial notice of the current version of section 3395 is hereby granted, and, on our own motion, we take judicial notice of the 2010 version of the regulations as well. (See Evid. Code, §§ 452, subd. (b) ; 459, subd. (a); see also Cal. Code Regs., tit. 8, § 3395 ; former Cal. Code Regs., tit. 8, § 3395 [2010 version].) AC Transit argues that the current version of section 3395 is relevant because it sets forth the requirements that it will be obligated to meet going forward if its non-air-conditioned buses are deemed to be "outdoor places of employment." The Division objects, arguing that the sole issue before this court is whether the term "outdoor" should be interpreted to include non-air-conditioned buses and thus any issues involving AC Transit's ability to comply with the regulation are irrelevant. While we observe that the regulatory structure contains a number of alternatives to strict compliance, we agree with the Division that those questions are not before us. (Lab. Code, §§ 143 [allowing for a permanent variance from an occupational safety and health standard "upon a showing of an alternate program, method, practice means, device, or process which will provide equal or superior safety for employees"], 6450 [permitting Division to grant a temporary variance]; see also Cal. Code Regs., tit. 8, § 3395, subd. (d) exceptions (1) & (2) [allowing alternative procedures for providing access to shade, including use of cooling measures, that provide equivalent protection]; FSOR at p. 46 [noting availability of personal cooling devices].) Instead, we consider both the current version and the 2010 version of section 3395 only as they relate to the issue of regulatory interpretation with which we are here presented.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.