OR-OSHA v. Moore Excavation, Inc.

OR-OSHA has the burden of proving, in its prima facie case when a hazardous condition is presumed to exist, that employee exposure to the hazardous condition is "reasonably predictable."

The Oregon Occupational Safety and Health Division (OR-OSHA) sought judicial review of an order of an administrative law judge (ALJ) vacating a citation issued by OR-OSHA to Moore Excavation, Inc. (Moore) in connection with the presence of a damaged ladder at Moore's worksite that had not been marked as hazardous pursuant to 29 CFR section 1926.1053(b)(16), a federal regulation adopted in Oregon by reference under the Oregon Safe Employment Act (OSEA). The ALJ concluded that OR-OSHA had failed to satisfy its prima facie burden as to employee "exposure" to the ladder, reasoning that, under the circumstances, it was not "reasonably predictable" that an employee would have been exposed to the hazard presented by the ladder. OR-OSHA argued that the ALJ erred in imposing a reasonable predictability standard of proof with respect to the employee exposure element, as opposed to simply proving the existence of a hazard and the possibility of employee exposure, and in vacating the citation under that standard. On review for errors of law, the Court of Appeals held under ORS 183.482(8)(a), the ALJ correctly imposed a reasonable predictability standard of proof with respect to OR-OSHA's burden to prove employee exposure to the damaged ladder, a condition presumed to be hazardous. On review for substantial evidence, under ORS 183.482(8)(c), the ALJ's determination that OR-OSHA failed to carry its burden under that standard and, therefore, vacating the citation, is supported. Affirmed.