OR-OSHA v. Stahlbush Island Farms, Inc.

Under OAR 437-001-0145, a safety violation’s penalty is determined by its “probability” and “severity” ratings. The probability rating is “[t]he probability of an accident that could result in an injury or illness from a violation” and is based on a number of factors listed under OAR 437-001-0135.

Stahlbush Island Farms (Stahlbush) was issued a citation for a safety violation by the Oregon Occupational Safety Health Administration (OR-OSHA), a division of the Department of Consumer and Business Services. The compliance officer determined that Stahlbush's violation “had a probability rating of ‘medium.’” OR-OSHA’s contested case hearings are conducted by an ALJ. ORS 654.290(2)(b). The ALJ upheld the citation for Stahlbush's safety violation but reduced the penalty because he concluded that the violation should be rated as “low” instead of “medium.” Stahlbush sought judicial review of the order. The Court upheld the ALJ’s order, concluding it was “supported by substantial evidence and substantial reason.” OR-OSHA cross-petitioned, arguing that the ALJ erroneously reduced the penalty for Petitioner’s violation. At a contested case hearing, OR-OSHA’s burden is to prove the assessed penalty was reasonable, and the ALJ, in reviewing the penalty, is limited to determining whether OR-OSHA had met its burden. OAR 438-085-0820(1), (3). The Court agreed with OR-OSHA, concluding that it was “clear from the order that the ALJ made his own determination of the probability rating.” Thus, the Court held that the ALJ exceeded his authority because “[i]t was not the ALJ’s responsibility to determine a probability rating, but rather to determine whether OR-OSHA’s probability rating was reasonable.” Penalty vacated and remanded; otherwise affirmed.