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Sierra Packaging & Converting, LLC v. Chief Adminstrative Officer of Occupational Safety and Health

Court of Appeals of Nevada

November 16, 2017


          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.



          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 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.


         Respondent Nevada Occupational Safety and Health Administration (NOSHA)[1] 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 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 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.


         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).

         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 & 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 ...

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