Oregon Manufacturers and Commerce v. Oregon Occupational Safety and Health Division ( 2022 )

"IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ‘MEDFORD DIVISION OREGON MANUFACTURERS AND COMMERCE, an Oregon non-profit . association, ASSOCIATED OREGON LOGGERS, INC.,, an Oregon non-profit Association, and OREGON FOREST & INDUSTRIES COUNCIL, an Oregon nonprofit association, . Case No, 1:22-cv-00875-CL Plaintiffs, v. OPINION AND ORDER OREGON OCCUPATIONAL SAFETY AND HEALTH DIVISION, a division of the Oregon Department of Consumer and Business Services, RENEE STAPLETON, in her official capacity as acting administrator for the Oregon Occupational Safety and Health Division, OREGON DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, an Agency of the State of Oregon, and- . ANDREW STOLFI, in his official capacity as the Director of the Oregon Department of Consumer and Business Services, : Defendants. CLARKE, Magistrate Judge Plaintiffs are non-profit organizations whose members represent the industries of manufacturing, commerce, logging, and forestry in the State of Oregon. They bring this cause of action against the defendants, the Oregon Department of Consumer and Business Services Pace ] OPINION AND ORDER (“DCBS”), the Oregon Occupational Safety and Health Division (““OR-OSHA”), which is a division of DCBS, and Renee Stapleton and Andrew Stolfi, who are the directors of those two agencies. Plaintiffs challenge the validity of recent Oregon Administrative Rules (“OAR”) 437- 002-1081 and 437-003-9791, which seek to provide worker protections from wildfire smoke, and OAR 437-002-0156 and 437-004-1131, which seek to provide workers with heat illness prevention tools. Full consent to magistrate jurisdiction was entered on December 6, 2022. The case comes before the Court on a motion to dismiss for sovereign immunity and failure to state a claim. An oral argument hearing was held on December 6, 2022. For the reasons below, the motion to dismiss (#20) is GRANTED. This case is dismissed with prejudice, and judgment shall be entered for the defendants: BACKGROUND Defendant OR-OSHA adopted administrative rules to protect Oregon workers from □ exposure to excessive ambient heat temperatures and hazardous levels of wildfire smoke while at work, See OAR 437-002-0156 and 437-004-1131 (the “heat rules”), OAR 437-002-1081! and OAR 437-004-9791 (the “smoke rules”) (collectively, “the heat and smoke rules”). The heat and smoke rules arise from Executive Order 20-04 (“EO-20-04”), issued on March 10, 2020, in which Governor Kate Brown directed certain state agencies to address and mitigate the impacts of climate change in various ways. Dkt. 1-1 (“Compl., Ex. 1”) at 1, 4; Dkt. 1-2 (‘Compl., Ex, 2”) at 1, 4-5. As relevant here, EO-20-04 directed OR-OSHA to work with the Oregon Health Authority (“OHA”) “to jointly develop a proposal for standards to protect employees from Throughout the Complaint, Plaintiffs cite to “OAR 437-002-1080” when referencing the smoke | rules. The Court recognizes this as a typographical error. The Court assumes that Plaintiffs meant to type “OAR 437-002-1081,” and the Court will address the merits of the substantive arguments without regard to the error. Dage 7 — OPINION AND ORDER workplace exposures to excessive heat and wildfire smoke.” Compl., Ex. 1 at 1, 4; see also Compl., Ex, 2 at 1, 4-5. . a. The Heat Rules OR-OSHA initiated the rulemaking process for the heat rules in March 2021 in collaboration with OHA, a rulemaking advisory committee, and stakeholders representing labor and business interests. Compl., Ex. 1 at 1. In June of 2021, because of the “unprecedented heat event” at the time, and with the formal rulemaking process underway, OR-OSHA adopted a temporary version of the heat rules. /d. at 1-2. On May 9, 2022, OR-OSHA adopted the final □□□□ rules, with an effective date of June 15, 2022. Compl. 4] 29-30; Compl., Ex. 1 at 4.7 In adopting the rules, OR-OSHA sought to address the problem that “both employers and workers may not clearly understand expectations of what must be done to prevent work-related heat illness.” Compl., Ex. 1 at 1. Indeed, “[t]he deadly heat wave of June 2021, which contributed to multiple workplace hospitalizations and fatalities, underscored the need for such rules to protect workers against the serious risk of work-related heat illness,” Id. . The heat rules apply “whenever an employee performs work activities, whether in indoor or outdoor environments, where the heat index (apparent temperature) equals or exceeds 80 degrees Fahrenheit.” Compl. 33; Compl., Ex. 1 at 8 (OAR 437-002-0156(1)); id. at 31 (OAR 437-004-1131(1)). The rules provide limited exemptions for certain workplaces and/or types of work. Compl., Ex. 1 at 8 (OAR 437-002-0156(1)(a) & (b)); id. at 31 (OAR 437-004-1131(1)¢a) & (b)). The heat rules include several provisions that address worker exposure to high ambient heat temperatures, including drinking water and shade requirements, high-heat practices, ? OR-OSHA adopted two sets of heat rules: OAR 437-002-0156 and OAR 437-004-1131. Compl. 931; also e.g, Compl., Ex. | at 1. As Plaintiffs allege, and the defendants agree, the text of the two sets of heat rules ts “identical in relevant manner for purposes of [Plaintiffs”] complaint.” See Compl. 31. OAR 437-002-0156 “applies to general industry,” and OAR 437-004-1131 “applies to places of employment subject to the rules for agriculture,” Jd. Pace 3 OPINION AND ORDER emergency medical plans, acclimatization plans, heat illness prevention plans, supervisor and employee training, and training documentation. See Compl., Ex. 1 at 9-12 (OAR 437-002- 0156@G)-(10)), 31-34 (OAR 437-004-1131(3)-(10)). Plaintiffs’ due process challenge against the heat rules relates to the provision requiring employers to develop and implement a written “acclimatization plan.” Compl. 37; see also Compl, Ex. 1 at 11 (OAR 437-002-0156(7)); id. at 33 (OAR 437-004-1131(7)). “[A]|eclimatization” is the “temporary adaptation of the body to work in the heat that occurs gradually when a person is exposed to it.” Compl., Ex. 1 at 9 (OAR 437-002-0156(2)(a)); id. at 31 (OAR 437-004-1131(2)(a)). The relevant portion of the heat rules provides: (7)