Sierra Pack'g v. Chief Ad. Off'r of NOSHA

133 Nev., Advance Opinion 05
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

SIERRA PACKAGING & No. 71130
CONVERTING, LLC,
Appellant,
vs.
FILE
THE CHIEF ADMINSTRATIVE NOV 1 6 2017
OFFICER OF THE OCCUPATIONAL tTH &BROWN
SAFETY AND HEALTH
ADMINISTRATION OF THE DIVISION C

OF INDUSTRIAL RELATIONS OF THE
DEPARTMENT OF BUSINESS AND
INDUSTRY, STATE OF NEVADA; AND
THE OCCUPATIONAL SAFETY AND
HEALTH REVIEW BOARD,
Respondents.

Appeal from a district court order denying a petition for
judicial review in an occupational safety and health matter. First Judicial
District Court, Carson City; James Todd Russell, Judge.
Reversed and remanded.

McDonald Carano LLP, and Timothy E. Rowe, Reno,
for Appellant.

State of Nevada Department of Business• and Industry, Division of
Industrial Relations, and Salli Ortiz, Carson City,
for Respondent.

BEFORE SILVER, C.J., TAO and GIBBONS, JJ.

OPINION
By the Court, SILVER, C.J.:
29 C.F.R. § 1910.132(f) (2011) requires employers to provide
training regarding the use of personal protective equipment to employees
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exposed to hazards necessitating the use of such equipment. Appellant
Sierra Packaging and Converting, LLC, argues the Nevada Occupational
Safety and Health Administration improperly cited it for violating 29
C.F.R. § 1910.132(0, as no facts establish that the subject employees were
actually exposed to such a hazard in the course of their work or were
required by that regulation to have fall protection training. In this appeal,
we clarify that exposure to a hazard can be demonstrated by facts
establishing that exposure to the hazard is reasonably predictable.
Because we conclude the Nevada Occupational Safety and Health Review
Board relied on an incorrect standard to reach its decision and the
evidence must be reevaluated under the standard set forth in this opinion,
we reverse and remand.
FACTS AND PROCEDURAL HISTORY
Respondent Nevada Occupational Safety and Health
Administration (NOSHA)' received an anonymous complaint alleging, in
relevant part, that appellant Sierra Packaging and Converting, LLC
(Sierra Packaging), violated NOSHA's health and safety regulations by
allowing employees to climb on warehouse racks without personal
protection equipment (PPE). Pictures of three employees on the racking
without PPE accompanied the complaint.
Jennifer Cox, an enforcement officer for NOSHA, investigated
the• complaint. The men in the pictures were three temporary
maintenance personnel hired through a subcontractor and working under
maintenance manager Steve Tintinger. At the time, Sierra Packaging had

'When referring to the Occupational Safety and Health
Administration of other states or the federal government, we use the more
general term "OSHA."

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just moved to a new location and hired the temporary help for the move.
Sierra Packaging also hired another company to install the warehouse
racking at its new location, but that company failed to install metal
stabilization plates on the racking.
The three employees, assisted by a company interpreter, spoke
to Cox regarding the photograph depicting them on the racking without
PPE. The employees stated that they had been instructed to install the
metal plates that were missing in the racking. Two employees admitted
that they were not supposed to climb on the racking; one stated that he
had actually been standing on a ladder next to the racking and the other
did not say whether he had been standing on the racking. The third
employee, however, admitted to Cox that he was in fact standing on the
racking without PPE. All three were visibly nervous. One of the
employees asserted Tintinger ordered them onto the racks to complete the
task and told them to use ladders and PPE. But another stated that the
subcontractor who hired the three men ordered them to install the metal
plates. The third employee's statement is silent on this point.
When Cox inquired about the PPE, the men stated that "the
employer" provided them with PPE, and one of them retrieved a harness
system and shop pack. At least one employee indicated he had undergone
safety training provided in Spanish Although the three men knew how to
don and inspect the PPE, Cox discovered that none of them understood
how to utilize the equipment.
Cox also interviewed management, including Tintinger, and
learned that management did not know the PPE's limitations. At the
conclusion of the investigation, Cox recommended NOSHA cite Sierra

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Packaging for a "serious" 2 violation of 29 C.F.R. § 1910.132(f) (2011) for
failing to provide adequate training regarding PPE. Thereafter, NOSHA
issued a citation with notification of penalty for $3,825.
Sierra Packaging contested the citation and the Nevada
Occupational Safety and Health Review Board (the Board) held an
evidentiary hearing. NOSHA presented evidence, including the
anonymous complaint accompanied with pictures of the three men
standing on the racking, along with Cox's testimony and report. NOSHA
argued that "[t]he only thing that matters is that these employees . . . had
the fall protection equipment but they didn't know how to properly use it."
Conversely, Sierra Packaging generally denied NOSHA's allegations,
arguing the citation was improper because the employees did not actually
need PPE to perform their job duties. But Sierra Packaging acknowledged
that maintenance workers sometimes needed PPE, and Tintinger at one
point admitted that he may have directed the three employees to install
the metal plates on the racking. In its written decision concluding Sierra
Packaging failed to adequately train the employees, the Board focused on
the employees' access to the PPE. The Board found that Sierra
Packaging's evidence was not credible, and upheld NOSHA's citation. In
resolving Sierra Packaging's subsequent petition for judicial review, the
district court agreed with the Board's conclusion and held that the "Board
has taken the reasonable stance that when an employer provides fall
protection equipment, it must also provide the training on the safe use of
such equipment." This appeal followed.

2There are several categories of OSHA violations, and the penalties
vary for the type of violation. See generally NRS Chapter 618; 51 C.J.S.
Labor Relations § 42 (2017).

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ANALYSIS
Sierra Packaging argues that the Board disregarded the plain
language of 29 C.F.R. § 1910.132(f)(1), a regulation mandating training for
employees required to use PPE. On appeal, Sierra Packaging does not
dispute that the three employees were inadequately trained; rather, Sierra
Packaging argues that no facts established that the employees were
required to be trained under 29 C.F.R. § 1910.132(f). NOSHA counters
that, because the evidence established that Tintinger instructed the
workers to use PPE, and the employees had access to PPE, 29 C.F.R.
§ 1910.132(f) requires that the employees must also be trained in using
PPE.
When reviewing an agency's decision, we, like the district
court, consider whether the decision was affected by an error of law or was
"an arbitrary and capricious abuse of discretion." Law Offices of Barry
Levinson, P.C. v. Milko, 124 Nev. 355, 362, 184 P.3d 378, 383 (2008); see
also NRS 233B.135(3)(d), (f); State Tax Comm'n v. Am. Home Shield of
Nev., Inc., 127 Nev. 382, 385-86, 254 P.3d 601, 603 (2011). If the agency's
decision rests on an error of law and the petitioner's substantial rights
have been prejudiced, this court may set aside the decision. State, Private
Investigator's Licensing Bd. v. Tatalovich, 129 Nev. 588, 590, 309 P.3d 43,
44 (2013). Our review is limited to the record before the agency, Gandy v.
State ex rel. Div. of Investigation & Narcotics, 96 Nev. 281, 282, 607 P.2d
581, 582-83 (1980), and we will overturn the agency's factual findings only
if they are not supported by substantial evidence. NRS 233B.135(3)(e), (f);
City of N. Las Vegas v. Warburton, 127 Nev. 682, 686, 262 P.3d 715, 718
(2011). Substantial evidence is that "which a reasonable mind might
accept as adequate to support a conclusion." NRS 233B.135(4); Nev. Pub.
Emps.' Ret. Bd. v. Smith, 129 Nev. 618, 624, 310 P.3d 560, 564 (2013).
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We review questions of statutory construction de novo. I. Cox
Constr. Co., LLC v. CH2 Invs., LLC, 129 Nev. 139, 142, 296 P.3d 1202,
1203 (2013). We first look to the statute's plain language, and we
"construe the statute according to its fair meaning and so as not to
produce unreasonable results." Id. Ordinarily we will defer to the
agency's interpretation of its governing regulations, so long as the agency's
interpretation is within the language of the statute. Taylor v. Dep't of
Health St Human Servs., 129 Nev. 928, 930, 314 P.3d 949, 951 (2013).
29 C.F.R. § 1910.132 (2011), in relevant part, states:
(a) Application. Protective equipment,
including personal protective equipment . , shall
be provided, used, and maintained in a sanitary
and reliable condition wherever it is necessary by
reason of hazards of processes or environment[.]

(d) Hazard assessment and equipment
selection.
(1) The employer shall assess the
workplace to determine if hazards are present, or
are likely to be present, which necessitate the use
of personal protective equipment (PPE).

(f) Training.
(1) The employer shall provide
training to each employee who is required by this
section to use PPE. Each such employee shall be
trained to know at least the following: . . .
(iv) The limitations of the PPE.
The plain language of this regulation mandates training when
the employee is "required by this section" to use PPE. Under subsections
(a) and (d), PPE is required as "necessary" to protect against hazards.
Accordingly, the citation was proper if the employees' work exposed them
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to a hazard that required the use of PPE—here, if the employees were
exposed to heights that necessitated the use of fall protection equipment.
29 C.F.R. § 1910.132 does not, however, clarify what evidence
NOSHA must present to show exposure to the hazard. Although Nevada's
appellate courts have not yet addressed this question, other jurisdictions
have held that, where a regulation requires exposure to a hazard, evidence
of actual exposure is not required so long as the record demonstrates
exposure was reasonably predictable. See Or. Occupational Safety &
Health Div. v. Moore Excavation, Inc., 307 P.3d 510 (Or. Ct. App. 2013).
In Moore Excavation, for example, the Oregon Occupational
Safety and Health Division cited a company under 29 C.F.R.
§ 1926.1053(b)(16) for failing to tag as defective a damaged ladder and
remove it from service. Id. at 511. In reviewing the administrative law
judge's decision to vacate the citation, the Oregon Court of Appeals
addressed the burden of proof for that state's OSHA to show exposure to
the hazard. Id. at 514-16. The appeals court relied on the "rule of access"
promulgated by the federal Occupational Safety and Health Review
Committee, which the appeals court held "ultimately requires, simply,
that the agency prove that it was reasonably predictable that one or more
employees had been, were, or would be exposed to the hazard presented by
the violative condition at issue." Id. at 516; see also Gilles & Cotting, Inc.,
1976 CCH OSHD 91 20,448, 91 24,425 (No. 504, 1976) ("On balance we
conclude that a rule of access based on reasonable predictability is more
likely to further the purposes of the Act than is a rule requiring proof of
actual exposure."). The appeals court noted that this standard requires
more than a mere showing of access to the hazard, but less than proof of
actual exposure. Moore Excavation, 307 P.3d at 517.

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Similarly, the United States Court of Appeals for the Fourth
Circuit, while not using the term "rule of access," explained that, in
establishing an exposure to a hazard under 29 C.F.R. § 1926.501(b)(1),
OSHA must show a reasonable predictability that the employees either
were, or would be, in the "zone of danger." N&N Contractors, Inc. v.
Occupational Safety & Health Review Comm'n, 255 F.3d 122, 127 (4th Cir.
2001). The United States Court of Appeals for the Ninth Circuit likewise
addressed employee exposure to the "zone of danger," concluding that
proof of actual exposure to the danger was unnecessary to establish a
violation of 29 C.F.R. § 1926.651(c)(2) where the evidence showed it was
reasonably predictable that the employees would be exposed to the danger.
R. Williams Constr. Co. u. Occupational Safety & Health Review Comm'n,
464 F.3d 1060, 1064 (9th Cir. 2006).
Although these cases do not address 29 C.F.R. § 1910.132, the
cases suggest a common theme that may be applied to that regulation:
where a rule requires OSHA to demonstrate employee exposure to a
hazard, OSHA meets its burden of proof by showing that it is reasonably
predictable that the employee was or would be exposed to the hazard in
the course of the employee's work. Importantly, this rule comports with
the language of 29 C.F.R. § 1910.132, a regulation focusing on the
potential for and probability of employee exposure to hazards, rather than
actual exposure. We therefore agree with the analysis set forth in Moore
Excavation and hold that where NOSHA is required to show exposure to
the hazard, NOSHA meets its burden of proof by demonstrating that it is

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reasonably predictable that the employees were or would be exposed to the
hazard. 3
In the present case, the Board employed an incorrect standard
in rendering the underlying decision. Under 29 C.F.R. § 1910.132, the
citation was proper if the employees' work exposed them to a hazard that
required the use of PPE. Pursuant to the "rule of access," NOSHA could
meet its burden of proof here by showing it was reasonably predictable
that the employees were or would be exposed to hazardous heights
necessitating the use of PPE. Yet instead of focusing on exposure to
heights necessitating the use of PPE, the Board predicated its decision on
the employees' access to the PPE and concluded this access triggered 29
C.F.R. § 1910.132(f)'s training requirement. Under the "rule of access,"
however, this training requirement only comes into play if it was
reasonably predictable that the employees were or would be exposed to
hazardous heights requiring the use of PPE. As a result, we reject the
Board's interpretation of 29 C.F.R. § 1910.132 and conclude that its
resulting decision was grounded in an error of law that, in this case,
infected the proceedings and consequently prejudiced Sierra Packaging's
substantial rights. See Tatalovich, 129 Nev. at 590, 309 P.3d at 44.
Pursuant to the "rule of access" we adopt today, the propriety of
the citation against Sierra Packaging needs to be reexamined under the
reasonable predictability standard, but this analysis must be carried out by
the Board in the first instance, as it is well established that courts may not
reweigh the evidence in reviewing an administrative decision. See Nellis

3 We note the district court addressed Moore Excavation and the
"rule of access," although the district court, like the Board, focused on the
employees' access to the PPE.

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Motors v. State, Dep't of Motor Vehicles, 124 Nev. 1263, 1269-70, 197 P.3d
1061, 1066 (2008) (providing that an appellate court reviewing an
administrative decision will not reweigh the evidence or reassess witness
credibility). Accordingly, we reverse and remand this case to the district
court with instructions to remand this matter to the Board to reevaluate
the evidence and reconsider its decision under the standard set forth in this
opinion.
CONCLUSION
We adopt the "rule of access" standard as articulated in Moore
Excavation. Under this standard, when a statute or regulation requires
NOSHA to establish employee exposure to a hazard, the Board's decision
regarding a NOSHA citation may be upheld if NOSHA presents substantial
evidence demonstrating that exposure to the hazard was or would be
reasonably predictable. Here, because the Board applied an incorrect
standard in evaluating the citation, we reverse and remand this case to the
district court for it to remand this matter back to the Board for further
proceedings in accordance with this opinion

C.J.
Silver

J.
Gibbons

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TAO, J., concurring:
I agree with my colleagues that Nevada OSHA (NOSHA) erred
by applying a circular legal standard under which an employer's duty to
train kicks in whenever employees have access to safety equipment
regardless of whether any hazard is present or not, rather than the better
"rule of access" under which the duty to train arises only when it's
reasonably predictable that employees will actually be exposed to some
hazard that could hurt them. I therefore fully join the very thorough and
well-reasoned majority opinion that explains NOSHA's error quite well.
But I would go a step further and find that there's a second,
larger problem here that ought to be thought through on remand before
this case goes any further. Although not quite pressed by the parties on
appeal (and, hence, why it's not the subject of the principal opinion), it
appears to me that NOSHA overstepped its regulatory authority by
levying a fine pursuant to an excessively broad and non-textual
interpretation of 29 C.F.R. § 1910.132, a regulation that, fairly read,
doesn't apply to the conduct at issue. This case might therefore be ripe for
dismissal because Sierra's conduct didn't violate the terms of § 1910.132
as actually written.
There's an ongoing and active debate over how much quasi-
legislative power Congress can constitutionally delegate to executive
branch agencies, and how much deference courts owe to those agencies
when they engage in the quasi-judicial task of interpreting the law. See
Gutierrez-Brizuela v. Lynch, 834 F.2d 1142, 1149 (10th Cir. 2016)
(Gorsuch, J., concurring) (questioning the constitutionality of Chevron
deference as violating the principle of separation of powers); Waterkeeper
All. v. Envir. Protect. Agency, 853 F.3d 527, 539 (D.C. Cir. 2017) (Brown,

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J., concurring) ("An Article III renaissance is emerging against the judicial
abdication performed in Chevron's name. If a court could purport fealty to
Chevron while subjugating statutory clarity to agency 'reasonableness,'
textualism will be trivialized."). Cf. Tom v. Innovative Home Sys., LLC,
132 Nev. „ 368 P.3d 1219, 1230 (Ct. App. 2016) (Tao, J., concurring)
(noting practical problems with treating executive-branch advisory
opinions as if they were judicial decisions). This appeal goes to the very
heart of that debate, as I would conclude that NOSHA's case against
Sierra requires § 1910.132 to be interpreted in a way that exceeds any
authority actually delegated by Congress.
I.
NOSHA filed its complaint against Sierra in September 2013,
and issued its decision imposing a fine in April 2014. These dates matter
because the regulation was significantly changed in November 2016 to add
29 C.F.R. § 1910.140, a new section that specifically addressed "personal
fall protection systems." But this section didn't exist before 2016, so
Sierra couldn't have violated it in 2013.
Prior to 2016, 29 C.F.R. § 1910.132 was limited to addressing
chemical and environmental hazards that injure when breathed in or
when in contact with skin, ears, face, or eyes. When these hazards are
present, employers must provide personal protective equipment (PPEs),
along with training in how to use them, to all exposed employees.
But NOSHA didn't charge Sierra with failing to provide PPEs
to employees facing potential injury from toxic environmental hazards. It
charged Sierra with failing to provide PPEs to employees working on an
elevated platform from which they could have fallen. But § 1910.132 has
nothing to do with this kind of danger, and the PPEs that § 1910.132

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describes wouldn't have prevented anyone from either falling or being hurt
if they did.

The place to start is with the plain text of § 1910.132. See
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 56 (2012) (It] he words of a governing text are of paramount
concern"). The scope of both the current and pre-2016 versions of
§ 1910.132 is defined in paragraph (a), the "application" paragraph of the
regulation. Paragraph (a) states:
Application. Protective equipment, including
personal protective equipment for eyes, face, head,
and extremities, protective clothing, respiratory
devices, and protective shields and barriers, shall
be provided, used, and maintained in a sanitary
and reliable condition wherever it is necessary by
reason of hazards of processes or environment,
chemical hazards, radiological hazards, or
mechanical irritants encountered in a manner
capable of causing injury or impairment in the
function of any part of the body through
absorption, inhalation or physical contact.
NOSHA contends that the phrase "hazards of processes or environment" is
broad enough to encompass placing employees in situations where a
dangerous fall is reasonably predictable. Is NOSHA correct?
The answer seems to me to be: NOSHA is correct only if the
lengthy phrase that closes the paragraph—"encountered in a manner
capable of causing injury or impairment in the function of any part of the
body through absorption, inhalation or physical contact"—is read to
qualify merely the term "mechanical irritants" that immediately precedes
it, and nothing else.

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But I don't read it that way. To me, the most natural meaning
of the closing phrase is that it's intended to qualify the entire list of
hazards set forth in paragraph (a), and not just the very last item on the
list. In other words, a violation of § 1910.132(f) can occur only if a hazard
capable of causing injury "through absorption, inhalation or physical
contact" is present. Read that way, § 1910.132 was designed to address
possible harm resulting from environmental hazards such as chemicals
and irritants or small objects flying about in the workplace that might
injure someone through skin contact or inhalation. The regulation has
nothing to do with preventing employees from falling from high places.

Why do I read the pre-2016 regulation that way?
First, reading it the way NOSHA wants us to would mean that
the first item in the list of hazards, "hazards of processes or environment,"
just dangles there with no additional definition or qualifier. But that
reading makes the phrase so broad and imprecise that it can cover any
kind of workplace "hazard" at all: noxious chemicals, slips and falls, slicing
injuries, malfunctioning machines, surly junkyard dogs running about,
and even attacks by deranged assassins or terrorists within the
"environment" of the workplace. And if the initial item on the list were
intended to have been so broad, then the entire rest of the list would be
totally unnecessary. Yet "no part of a statute should be rendered
nugatory, nor any language turned to mere surplusage, if such
consequences can properly be avoided." Indep. Am. Party v. Lau, 110 Nev.
1151, 1154, 880 P.2d 1391, 1392 (1994) (quoting Paramount Ins., Inc. v.
Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530,533 (1970)).
Second, the types of PPEs specifically set forth throughout the
pre-2016 version of 29 C.F.R. § 1910.132 consist of things like "eyewear"
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(paragraph (h)(2)), "metatarsal guards" (paragraph (h)(3)), "protective
clothing" (paragraph (a)), "respiratory devices" (paragraph (a)) and
"protective shields" (paragraph (a)). These are things that have nothing to
do with preventing employees from falling from heights, but quite a lot to
do with chemical or respiratory hazards that injure via absorption,
inhalation, and skin contact.
Third, the overall structure of the pre-2016 version of Title 29
assigns the risk of employee falls to Subparts "D" and "F." For example,
29 C.F.R. § 1910.28(a)(1) of Subpart "D" describes the subpart as
"requir[ing] employers to provide protection for each employee exposed to
fall and falling object hazards." 29 C.F.R. § 1910.28(b)(1)(i) further
clarifies a "fall hazard" as arising when employees are on a "walking-
working surface with an unprotected side or edge that is 4 feet (1.2 m) or
more above a lower level .. . ." But the provision that Sierra was charged
with violating isn't located anywhere within this subpart. Instead,
§ 1910.132 is located several subparts away, in Subpart "I" (and, notably,
immediately preceded by Subpart "H" addressing "Hazardous Materials").
NOSHA's argument moves a provision from one subpart to the other. But
we aren't supposed to read regulations that way. Quite to the contrary,
"Eilf possible, every word and every provision is to be given effect (verba
cum effectu stint accipienda). None should be ignored. None should
needlessly be given an interpretation that causes it to duplicate another
provision or to have no consequence." Scalia & Garner, supra, at 174
(footnote omitted).
Furthermore, NOSHA's interpretation of § 1910.132(a) would
give it breathtaking scope and reach. Subpart "D" defines a "fall hazard"
as occurring only at four feet or higher. But according to NOSHA, the

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"hazard" of § 1910.132(a) of Subpart "I" includes no height limitation, so
apparently it kicks in at any height. Thus, PPEs and PPE training are
required whenever an employee steps on anything even mere inches above
floor level—footstools, benches, even the single step of a staircase; every
employee now needs a PPE to walk up or down a stairway. Would it apply
to an employee who stands on his tippy-toes to reach something without a
PPE? If § 1910.132(a) means what NOSHA says it does, there's nothing to
prevent NOSHA from prosecuting that as a violation, as utterly absurd as
that seems.
In short, the most plain and natural reading of the entirety of
the pre-2016 version of 29 C.F.R. § 1910.132 is that it's limited to hazards
that cause injury through "absorption, inhalation or physical contact," and
doesn't cover the risk of falling created by having employees work in high
places. NOSHA cited and relied upon the wrong regulation in imposing its
fine, and it's no longer clear what the outcome might have been had it
cited one that did apply (perhaps, but not certainly, subpart "D") and
allowed Sierra to mount a defense against it.
IV.
Nonetheless, NOSHA argues that its legal interpretation of
the regulations at issue ought to be given deference. That's true, to a
point. But only to a point. Courts give deference only to agency
interpretations of law that are "reasonable" and within the language of the
governing regulation and statutes. See Chevron, U.S.A., Inc. v. Nat. Res.
Del Council, Inc., 467 U.S. 837 (1984); see also Taylor v. Dep't of Health &
Human Servs., 129 Nev. 928, 930, 314 P.3d 949, 951 (2013) (under the
Nevada Administrative Procedures Act, courts defer to agency
interpretations of their governing statutes or regulations if the
interpretation is within the language of the statute).
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NOSHA's interpretation strikes me as neither; it's an
interpretation that re-writes a clear regulation of relatively limited scope
into an ill-defined one of almost boundless and unlimited scope, with scant
regard for the actual text. If we're required to give deference to an
interpretation as far-reaching and atextual as this one with precious little
judicial review over the end result, I wonder if Judge (now Justice)
Gorsuch wasn't right to question whether it makes constitutional sense to
give so much power to interpret the meaning of a regulation to the very
agency charged with prosecuting alleged violations of it. See Gutierrez-
Brizuela, 834 F.2d at 1149.
The very purpose of requiring that federal regulations be
published for all the world to see is to give fair notice to potential violators
of the precise conduct prohibited under pain of administrative sanction.
See Oliver W. Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 459
(1897) (written law serves to notify when the state will bring its force to
bear, and "a bad man has as much reason as a good one" to want to know
when "the axe will fall"). Congress delegated some rule-making power in
this arena to federal OSHA to define what conduct ought to be punished.
But once OSHA exercised that delegated power and promulgated
something into the Code of Federal Regulations, I doubt that Congress
intended that its state counterparts could subsequently re-cast the
meaning of those words on the fly, totally ad hoc, under the rubric of
"agency interpretation," in order to penalize some unrelated conduct that
OSHA's own published words don't reasonably cover. That strikes me as
the very definition of "arbitrary," not to mention a serious due process
problem to boot.

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Once written, words are supposed to have a fixed meaning that
ought to be more or less understandable to any reasonable person endeavoring
to read them with an eye toward avoiding penalty. See Scalia & Garner,
supra, at 78 ("Words must be given the meaning they had when the text was
adopted."). It's true that litigants and lawyers may, and constantly do, argue
over shades of meaning when the written words are unclear. But when words
are clear, what shouldn't be the subject of argument is whether they have any
definite meaning at all. Government agencies aren't supposed to be able to
prosecute anyone they want whether or not the targeted conduct bears any
relation to words published anywhere in any regulation or statute. Law isn't a
looking-glass world where words mean whatever happens to be most
convenient in one moment and something very different in the next. See
Lewis Carroll, Through the Looking-Glass 188 (Signet Classic 2000) ("When I
use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just
what I choose it to mean—neither more nor less.' 'The question is,' said Alice,
'whether you can make words mean so many different things.").
OSHA drafted a regulation and made it law through the regular
procedures of the Administrative Procedures Act. Having done so, it (and its
state counterpart agencies) ought to stand by the original meaning of its own
regulation and not try to make it now mean something else. CI Brett M.
Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2150
(2016) ("Chevron encourages the Executive Branch (whichever party controls
it) to be extremely aggressive in seeking to squeeze its policy goals into ill-
fitting statutory authorizations and restraints.").
V.
Consequently, while I fully agree that a remand is necessary,
on remand I would suggest that the parties and the Board seriously

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reconsider whether the words of the regulation relied upon by NOSHA bear
any reasonable relationship to Sierra's conduct or whether instead this
entire case shouldn't just be dismissed outright.

, J.
Tao

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