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,
Reversed and remanded. McDonald Carano LLP, and Timothy E.
Rowe, Reno, for Appellant.
of Nevada Department of Business and Industry, Division of
Industrial Relations, and Salli Ortiz, Carson City, for
SILVER, C.J., TAO and GIBBONS, JJ.
C.F.R. § 1910.132(f) (2011) requires employers to
provide training regarding the use of personal protective
equipment to employees 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(f), 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.
AND PROCEDURAL HISTORY
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.
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 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.
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.
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.
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 Packaging for a "serious" 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.
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.
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
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).
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 & Human Servs.,
129 Nev. 928, 930, 314 P.3d 949, 951 (2013).
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 ...