City Of Des Moines Vs. Employment Appeal Board And Labor Commissioner Byron K. Orton

IN THE SUPREME COURT OF IOWA
No. 81/ 04-1763
Filed September 29, 2006
CITY OF DES MOINES,
Appellee,
vs.
EMPLOYMENT APPEAL BOARD and
LABOR COMMISSIONER BYRON K. ORTON,
Appellants.
________________________________________________________________________
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Glenn E. Pille,
Judge.
The employment appeal board and labor commissioner seek
further review of an adverse ruling on the City’s petition for judicial
review. DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED WITH
DIRECTIONS.
Rick Autry, Des Moines, and Gail Sheridan-Lucht, Des Moines, for
appellants.
Mark Godwin, Deputy City Attorney, Des Moines, for appellee.
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WIGGINS, Justice.
The Iowa labor commissioner filed a complaint against the City of
Des Moines (City) for two serious violations of the general industry Iowa
occupational safety and health (IOSH) standards for permit-required
confined spaces in connection with two deaths and five injuries occurring
to the employees of a contractor while working on a sewer-relining
project for the City. The employment appeal board found the City
committed the two serious violations and assessed a total penalty of
$9000. The City sought judicial review of the appeal board’s decision.
The district court reversed the decision of the appeal board. The appeal
board and the labor commissioner appealed the district court’s decision.
We transferred the case to our court of appeals. The court of appeals
affirmed the district court’s decision. The appeal board and labor
commissioner then sought further review, which we granted.
On further review, we find (1) the commissioner did not violate
Iowa Code section 17A.3 (2001) when he used federal interpretations of
the United States occupational safety and health administration (OSHA)
standards as a guide in interpreting those standards; (2) the City’s due
process rights were not violated when the commissioner and the appeal
board relied on the federal interpretations of the OSHA standards; (3) the
appeal board was correct in its interpretation of the general industry
permit-required confined spaces standards (29 C.F.R. section 1910.146);
(4) substantial evidence supports the appeal board’s conclusion that the
general industry permit-required confined spaces standards were
applicable to this sewer project; (5) the appeal board properly determined
that the City was a “host employer” under 29 C.F.R. section
3
1910.146(c)(8)(i), (iii); and (6) substantial evidence supports the appeal
board’s decision that the City committed two serious violations.
In view of these conclusions, we vacate the decision of the court of
appeals, reverse the district court’s decision, and remand the case to the
district court for an entry of judgment upholding the employment appeal
board’s decision.
I. Background Facts and Proceedings.
Upon receiving a notice from the Iowa department of natural
resources (DNR) of the presence of raw sewage in Dean’s Lake, the City
contracted with Insituform Technologies USA, Inc. to reline a portion of
its sewer. Before receiving this notice, the City did not have any plans to
work on the sewer. In July 2002, fumes from unidentified sewer gases
overcame Insituform workers inside the City-owned sewer line. Two
workers collapsed inside the sewer and drowned in pooling water. Five
other workers were seriously injured in the incident.
The City’s plan for the sewer project called for a sanitary sewer
renovation using a cured-in-place pipe liner, sewer cleaning,
reconnecting sewer services, by-pass pumping, and other related items.
The plan required Insituform to insert a liner within an existing sewer
pipe, expand the liner within the pipe, and cure it in place with heat.
Insituform was also required to install fillets to reduce the sharp angles
in the sewer and increase the liner’s strength.
Prior to the start of this project, the City developed procedures
relating to sewer entry consistent with the IOSH general industry
standards for permit-required confined spaces. Insituform had a similar
confined spaces entry plan for its employees.
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A pre-construction meeting was held between City officials and
Insituform representatives before work began in the sewer. At that
meeting, the City did not discuss its permit-required confined spaces
procedures with Insituform. From the start date of the actual work in
the sewer to the date of the fatal accident, the City had an inspector at
the work site virtually every day.
After the accident, the Iowa division of labor services occupational
safety and health bureau investigated the circumstances surrounding
the accident. After completing its investigation, the bureau cited the City
for two serious violations. The first violation was based on 29 C.F.R.
section 1910.146(c)(8)(i), as incorporated in Iowa’s administrative rules,
for the City’s failure to inform Insituform that the sewer contained permit
spaces and that permit space entry is allowed only through compliance
with a permit space program. See Iowa Admin. Code r. 875—10.20(88).
The City was also cited for a violation of the provisions in 29 C.F.R.
section 1910.146(c)(8)(iii), as incorporated in Iowa’s administrative rules,
for its alleged failure to apprise Insituform of what precautions and
procedures the City implemented to protect employees in or near permit
spaces where Insituform personnel would be working. See id. The
citation proposed a penalty of $4500 for each violation, or $9000 in total.
The City contested the citation. The commissioner filed a
complaint with the employment appeal board. An administrative law
judge presided over the hearing on the complaint. In addition to offering
testimony and exhibits at the hearing, the parties stipulated that the City
did not perform the actions required in 29 C.F.R. section
1910.146(c)(8)(i), (iii).
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The administrative law judge entered a decision and proposed
order affirming the violations concluding (1) the commissioner’s reliance
on federal interpretations of its OSHA standards in deciding what
violations may have occurred did not amount to rulemaking in violation
of Iowa Code section 17A.3; (2) the safety and health regulations for
general industry promulgated under 29 C.F.R. part 1910 apply to the
work in the sewer, rather than the safety and health regulations for
construction employment promulgated under 29 C.F.R. part 1926; and
(3) the City was a “host employer” under 29 C.F.R. section
1910.146(c)(8). The judge disagreed with the determination that the
violations were serious violations, amended the violations to other than
serious violations, and reduced the penalty to a total of $2500.
The City appealed the decision to the employment appeal board.
The appeal board issued a decision and final order agreeing with the
administrative law judge’s decision as to the violations, but found the
violations to be serious violations and reinstated the $9000 penalty.
The City petitioned the district court for judicial review. The
district court reversed the appeal board’s decision and voided the
penalty. The court concluded the commissioner’s reliance on the federal
OSHA documents constituted an abuse of discretion and unlawful
rulemaking, the work performed by Insituform was not governed by the
general industry safety and health regulations promulgated under 29
C.F.R. part 1910, and the City was not a “host employer” under 29
C.F.R. section 1910.146(c)(8).
The appeal board and the commissioner appealed. We transferred
the case to our court of appeals. Our court of appeals affirmed the
district court’s ruling concluding the commissioner’s reliance on the
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federal OSHA documents constituted an abuse of discretion and
unlawful rulemaking in violation of Iowa Code section 17A.3, as such
reliance was undisclosed and authoritative. Our court of appeals also
found substantial evidence did not support the appeal board’s decision
approving the citation under the general industry standards. The court
of appeals did not reach any other issues raised on appeal by the parties.
The appeal board and commissioner filed an application for further
review, which we granted.
II. Issues.
To resolve this appeal we must decide whether: (1) the appeal
board erred when it held the commissioner did not violate Iowa Code
section 17A.3 when he used federal interpretations of the OSHA
standards as a guide in interpreting those standards; (2) the City’s due
process rights were violated when the appeal board relied on the federal
interpretations of the OSHA standards; (3) the appeal board erred in
interpreting the general industry permit-required confined spaces
standards (29 C.F.R. section 1910.146); (4) substantial evidence
supports the appeal board’s conclusion that the general industry permit-
required confined spaces standards applied to the work in the sewer; (5)
the board properly determined that the City was a “host employer” under
29 C.F.R. section 1910.146(c)(8)(i), (iii); and (6) substantial evidence
supports the appeal board’s decision to find the City committed two
serious violations.
III. Scope of Review.
When reviewing the decision of the district court on judicial review,
“we must apply the standards set forth in [the Iowa Administrative
Procedure Act] and determine whether our application of those standards
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produces the same results as reached by the district court.” ABC
Disposal Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 601 (Iowa
2004); see also Iowa Code § 88.9(1) (providing judicial review of
occupational safety and health citations is in accordance with the Iowa
Administrative Procedure Act). The Iowa Administrative Procedure Act
allows the district court to reverse or modify an agency’s decision only if
it is incorrect under a ground specified in the Act, and a party’s
substantial rights have been prejudiced. Iowa Code § 17A.19(10).
Neither party claims if we find one of the enumerated provisions in
section 17A.19(10) exist, that the actions of the commissioner do not
affect the substantial rights of the City. Because of the different nature
of each issue raised on appeal, we will discuss the applicable standards
of review as we discuss each issue.
IV. Iowa Code Section 17A.3.
The Iowa legislature authorized the commissioner to adopt and
promulgate occupational safety and health standards that the United
States secretary of labor adopted and promulgated as permanent
standards by and in accordance with federal law. Iowa Code § 88.5(1)(a).
Pursuant to this authorization, the commissioner adopted parts of the
federal OSHA standards governing general industry safety and health.
Iowa Admin. Code r. 875—10.20(88). The commissioner also adopted
parts of the federal OSHA standards governing construction employment.
Iowa Admin. Code r. 875—10.12(88)(2). Although the sewer is a confined
space as defined by the general industry safety and health standards, the
permit-required confined spaces standards do not apply to construction
employment. 29 C.F.R. § 1910.146(a) (adopted by Iowa Admin. Code r.
875—10.20(88)). Construction employment is governed by 29 C.F.R.
8
part 1926. IOSH regulations define construction employment as “work
for construction, alteration, or repair.” Iowa Admin. Code r. 875—
10.12(88)(2).
The appeal board adopted the commissioner’s interpretation. It
found the work in the sewer was governed by the permit-required
confined spaces standards contained in the general industry safety and
health standards, rather than construction employment standards. In
support of its decision, the appeal board relied on the testimony of Mary
Bryant, IOSH administrator. In her testimony, Bryant looked to OSHA
instruction CPL 2.100 and an OSHA standard interpretation to
determine whether the general industry or the construction employment
standards applied to the work in the sewer. The United States
department of labor authored the instruction and the standard
interpretation. CPL 2.100 discusses when the general industry safety
and health standards apply to a project. The instruction states in
relevant part:
Generally speaking, refurbishing of existing equipment and
space is maintenance; reconfiguration of space or
installation of substantially new equipment (as for a process
change) is usually construction. Those spaces identified
under 1910.146(c) as permit spaces that are undergoing
maintenance or modifications, which do not involve
construction, would be subject to the General Industry
standards.
A confined space created during or as a result of
construction activity or entered to perform construction
activity would usually fall within the scope of the 29 CFR
1926 standards and the general duty clause until the space
is turned over for General Industry operations.
...
The relining of a sewer line using a sleeve which is pushed
through a section of the existing system is maintenance.
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U.S. Dep’t of Labor, Occupational Safety & Health Admin., CPL 2.100 –
Application of the Permit-Required Confined Spaces (PRCS) Standards, 29
C.F.R. 1910.146 (May 5, 1995).
The standard interpretation expanded on the difference between
construction and maintenance operations. It provides:
29 CFR 1910.12(b) defines construction work as “work for
construction, alteration, and/or repair, including painting
and decorating.” Generally speaking reconfiguration of
space or installation of substantially new equipment is
usually considered construction, whereas refurbishing of
existing equipment and space is considered maintenance.
Maintenance operations are covered by general industry
standards contained in 29 CFR 1910 and construction
activities are covered by the construction standards
contained in 29 CFR 1926. While paragraph (a), scope and
application, of 29 CFR 1910.146 does not apply to
construction activities, it does not exclude contractors from
coverage when performing maintenance type operations in
confined spaces.
Thus, if you are a contractor performing maintenance type
activities for a host employer, compliance with 29 CFR
1910.146 is required. Some examples of maintenance
operations would be:
...
Relining of a sewer line using a sleeve which is pushed
through a section of the existing system.
U.S. Dep’t of Labor, Occupational Safety & Health Admin., Standard
Interpretations-Confined Spaces: Use of Rescue-Type SCBAs; Maintenance
v. Construction (Apr. 12, 1996).
The City claims the commissioner’s reliance on the OSHA
instruction and the standard interpretation is unlawful rulemaking
under the Iowa Code. The City also claims that the commissioner cannot
use the OSHA instruction and the standard interpretation because the
10
commissioner did not index them as required by the Code. The Code
provides:
In addition to other requirements imposed by Constitution or
statute, each agency shall:
...
b. Adopt rules of practice setting forth the nature and
requirements of all formal and informal procedures available
to the public, including a description of all forms and
instructions that are to be used by the public in dealing with
the agency.
...
d. Make available for public inspection all rules, and make
available for public inspection and index by subject, all other
written statements of law or policy, or interpretations
formulated, adopted, or used by the agency in the discharge
of its functions.
2. No agency rule or other written statement of law or policy,
or interpretation, order, decision, or opinion is valid or
effective against any person or party, nor shall it be invoked
by the agency for any purpose, until it has been made
available for public inspection and indexed as required by
subsection 1, paragraphs “d” and “e”. This provision is not
applicable in favor of any person or party who has actual
timely knowledge thereof and the burden of proving such
knowledge shall be on the agency.
Iowa Code §§ 17A.3(1)(b), (d), 17A.3(2).
To decide this issue, we must interpret section 17A.3. The
interpretation of a statute is always a matter of law to be determined by
the court. City of Marion v. Iowa Dep’t of Revenue & Fin., 643 N.W.2d
205, 206 (Iowa 2002). However, under certain circumstances we are
required to give some deference to the agency’s interpretation. Id.
Chapter 17A prescribes the amount of deference we should give to the
view of an agency. Iowa Code § 17A.19(11). Because the legislature did
not vest the interpretation of section 17A.3 with the agency, we do not
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give any deference to the view of the agency and employ a correction-of-
errors-at-law standard of review. Id. § 17A.19(10)(b); Thoms v. Iowa Pub.
Employees’ Ret. Sys., 715 N.W.2d 7, 11 n.3 (Iowa 2006); Auen v. Alcoholic
Beverages Div., Iowa Dep’t of Commerce, 679 N.W.2d 586, 590-91 (Iowa
2004).
A purpose of Iowa Code section 17A.3 is to prevent secret agency
rulemaking when the agency uses undisclosed but authoritative
interpretations of law or policy. Doe v. Iowa State Bd. of Physical
Therapy & Occupational Therapy Exam’rs, 320 N.W.2d 557, 561 (Iowa
1982). However, these provisions are not relevant unless the agency
applies the undisclosed authoritative interpretations as a matter of law,
rather than merely applying the interpretations as relevant to the factual
situation. See Ford v. Iowa Dep’t of Human Servs., 500 N.W.2d 26, 29
(Iowa 1993).
Applying these considerations, we agree with the appeal board’s
decision that the commissioner’s use of the OSHA instruction and the
standard interpretation did not amount to unlawful rulemaking. The
commissioner alleged in his complaint that the City violated the
standards contained in 29 C.F.R. section 1910.146(c)(8)(i), (iii), not that it
violated the OSHA instruction or the standard interpretation. The
commissioner adopted the standards of 29 C.F.R. section
1910.146(c)(8)(i), (iii) using the required rulemaking procedures. These
standards were properly indexed in the administrative code. See Iowa
Admin. Code r. 875—10.20(88). Therefore, we also agree with the appeal
board’s decision that the commissioner’s actions did not amount to the
unlawful use of unindexed authorities.
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The commissioner used the OSHA instruction and the standard
interpretation as an aid in interpreting whether the City’s inaction was
governed by the general industry safety and health standards contained
in 29 C.F.R. part 1910. Accordingly, the administrator did not use the
OSHA instruction and standard interpretation to establish a rule of law
in this proceeding. In making the determination whether the general
industry safety and health standards, as contained in 29 C.F.R. part
1910, governed the City’s inaction, the commissioner only applied the
OSHA instruction and standard interpretation as relevant to this factual
situation. Cf. Anderson v. Iowa Dep’t of Human Servs., 368 N.W.2d 104,
107-08 (Iowa 1985) (holding an agency could not use a policy found in a
department’s employee manual as the rule of law to determine a
contested issue because the agency never adopted a rule containing such
a policy).
V. Due Process.
The City claims the commissioner’s and appeal board’s reliance on
the OSHA instruction and the standard interpretation violated the due
process guarantees of article I, section 9 of the Iowa constitution and the
Fourteenth Amendment to the United States Constitution. Although the
City raised the constitutional issue before the appeal board, the district
court did not reach this issue, instead finding the other issues raised by
the City were dispositive of the case. Under these circumstances we can
review the City’s due process claims on appeal. See Anderson, 368
N.W.2d at 107 (stating “[i]f the district court found one issue dispositive
and did not address the other issues, we can scrutinize all issues in
reviewing the rulings”). Our review of a constitutional issue raised by a
13
party in an agency proceeding is de novo. ABC Disposal Sys., Inc., 681
N.W.2d at 605.
The notion of due process requires that “no person shall be
deprived of life, liberty, or property, without due process of law.” Iowa
Const. art. I, § 9; U.S. Const. amends. V, XIV, § 1. We have stated that
the state and federal due process clauses are interpreted the same,
“including [when] . . . differentiating between ‘procedural’ and
‘substantive’ due process.” Master Builders of Iowa, Inc. v. Polk County,
653 N.W.2d 382, 397 (Iowa 2002). The City does not specify whether
procedural or substantive due process applies, but claims because it did
not have fair notice of what conduct is classified as prohibited a due
process violation occurred.
We have held:
Under the Due Process Clause, a civil statute is
unconstitutionally vague “when its language does not convey
a sufficiently definite warning of the proscribed conduct.”
The legal test for determining vagueness is: “[i]f the statute’s
meaning is fairly ascertainable by reliance on generally
accepted and common meaning of words used, or by
reference to the dictionary, related or similar statutes, the
common law, or previous judicial constructions, due process
is satisfied.” There is a presumption of constitutionality and
a litigant can only rebut this presumption by “negating every
reasonable basis on which the statute can be sustained.”
“Literal exactitude or precision is not required.” “A statute is
not unconstitutionally vague merely because a key word has
not been specifically defined.” To avoid a rule from unduly
restricting the regulation of certain matters, a certain degree
of indefiniteness is necessary.
ABC Disposal Sys., Inc., 681 N.W.2d at 605 (citations omitted).
As we previously determined, the rules of law applicable to this
agency proceeding are contained in 29 C.F.R. parts 1910 and 1926, as
incorporated in Iowa’s administrative rules. The commissioner used the
14
OSHA instruction and standard interpretation as relevant authority to
interpret and apply the standards to the facts of this case. The
commissioner’s reliance on these and like authorities is no different than
if he relied on case law, similar statutes, or previous agencies’
construction of 29 C.F.R. parts 1910 and 1926.
The OSHA instruction and standard interpretation are public
documents readily available on OSHA’s website. U.S. Dep’t of Labor,
Occupational Safety & Health Admin., http://www.osha.gov (last visited
Sept. 28, 2006). Additionally, OSHA instruction CPL 2.100 has been
cited in federal occupational safety health review commission decisions.
See, e.g., Sec’y of Labor v. Drexel Chem. Co., 18 O.S.H. Cas. (BNA) ¶
31,260, at 43,873 (Mar. 3, 1997). The use of the OSHA instruction and
standard interpretation does not violate due process guarantees because
the City had fair notice of what conduct is classified as prohibited.
Therefore, neither the commissioner’s nor the appeal board’s use of the
OSHA instruction and standard interpretation violated the City’s due
process guarantees under article I, section 9 of the Iowa constitution or
the Fourteenth Amendment to the United States Constitution.
VI. Interpretation of the General Industry Standards.
The appeal board interpreted the IOSH standards and concluded
that the general industry permit-required confined spaces standards
were applicable to this sewer project, rather than the construction
employment standards. The City contends the board erred in applying
the general industry permit-required confined spaces standards. We
disagree.
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The legislature gave the labor commissioner the authority to
promulgate Iowa’s occupational safety and health standards. Iowa Code
§ 88.5(1)(a). The legislature also made all determinations regarding the
issuance of a standard by the commissioner conclusive if substantial
evidence supports the standard. Id. § 88.5(10). This legislative authority
vests the interpretation of standards with the Iowa department of labor.
Thomes, 715 N.W.2d at 11-12 (Iowa 2006). Accordingly, we will give
appropriate deference to the agency’s interpretation of the standards and
reverse the agency’s action if it is based on an interpretation of law that
is “irrational, illogical, or wholly unjustified.” Iowa Code
§§ 17A.19(10)(l), 17A.19(11)(c).
To aid it in its interpretation of 29 C.F.R. parts 1910 and 1926, the
commissioner relied on OSHA instruction CPL 2.100 and a standard
interpretation. We find nothing wrong with the agency’s reliance on
these documents. The federal occupational safety health review
commission has found it proper for OSHA to rely on similar documents
to support its interpretation of a safety standard. See Drexel, 18 O.S.H.
Cas. (BNA) at 43,875 n.3 (citing numerous decisions where the federal
agency relied on CPLs to support interpretations of standards).
Additionally, the City introduced its own standard interpretation in
support of its case. U.S. Dep’t of Labor, Occupational Safety & Health
Admin., Standard Interpretations – Construction v. Maintenance (Aug. 11,
1994). This interpretation is consistent with the OSHA instruction and
the standard interpretation relied on by the commissioner. It provides in
relevant part that:
There is no specified definition for “maintenance,” nor a clear
distinction between terms such as “maintenance,” “repair,”
16
or “refurbishment.” “Maintenance activities” can be defined
as making or keeping a structure, fixture or foundation
(substrates) in proper condition in a routine, scheduled, or
anticipated fashion. This definition implies “Keeping
equipment working in its existing state, i.e., preventing its
failure or decline.” However, this definition, (taken from the
directive on confined spaces) is not dispositive; and,
consequently, determinations of whether a contractor is
engaged in maintenance operations rather than construction
activities must be made on a case-by-case basis, taking into
account all information available at a particular site.
...
In other instances, where an activity cannot be easily
classified as construction or maintenance even when
measured against all of the above factors, the activity should
be classified so as to allow application of the more protective
1910 or 1926 standard, depending on the hazard. In such
cases, the citation should be issued in the alternative with
the emphasis on the more protective standard.
Id.
In other words, because there is no bright line rule to determine
whether an activity is maintenance or repair, we must look at the facts of
each case to determine whether the task being performed was repair or
maintenance. If the question is close as to whether the work constitutes
repair or maintenance, the agency should apply the standards that
provide more protection to the employees, depending on the hazard.
Therefore, we cannot say the board’s interpretation of the IOSH
standards was “irrational, illogical, or wholly unjustified” when it
interpreted the standards and applied the more protective general
industry permit-required confined spaces standards contained in 29
C.F.R. part 1910.
VII. Substantial Evidence Analysis.
Having determined the agency’s interpretation of 29 C.F.R. parts
1910 and 1926 is not “irrational, illogical, or wholly unjustified,” we must
17
now determine if substantial evidence supports the board’s decision that
the general industry permit-required confined spaces standards apply to
this case. Iowa Code §§ 17A.19(10)(f), 88.8(3). “The [agency’s] factual
findings are binding on this court if supported by substantial evidence.”
United Fire & Cas. Co. v. St. Paul Fire & Marine Ins. Co., 677 N.W.2d 755,
759 (Iowa 2004). Our inquiry is whether the evidence supports the
findings made by the agency, not whether the evidence may support a
different finding. Munson v. Iowa Dep’t of Transp., 513 N.W.2d 722,
723 (Iowa 1994) (citing Reed v. Iowa Dep’t of Transp., 478 N.W.2d 844,
846 (Iowa 1991)).
The record supports a finding that during the investigation of an
oil/water mixture in Dean’s Lake, the DNR discovered the City
discharged raw sewage into the lake. A City maintenance worker
informed the DNR the discharge occurred when a contractor removed
sludge during an upgrade of a sewer box containing sewer lines for both
storm water and sewage. The DNR’s investigation concluded the leakage
did not occur due to mechanical failure or acts beyond the
control of the owner, [rather] it occurred due to the failure [of
the City] to have a contingency plan in place in case the lines
failed during the upgrade of the sewer box.
To remedy the problem, the DNR required the City to “[s]ubmit a written
plan for sewer box repairs [and] upgrades that will eliminate the potential
for future prohibited bypasses and discharges.”
In response to this requirement, the City developed a plan to reline
the East Twentieth Street sanitary sewer. The relining plan shows that
the existing sanitary and storm sewers are contained in one rectangular
sewer box. A six-inch-thick concrete common wall separates the two
sewers. The sanitary sewer routes raw sewage to the City’s wastewater
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treatment plant, while the storm sewer routes rainwater and other run-
off to natural waterways.
Although the DNR alerted the City to the discharge problem, this
fact alone does not determine whether work on the sewer can be
classified as repair or maintenance. The relining plan did not involve a
repair to a specific area of the sewer where leakage may have occurred.
Instead, the plan shows the City chose to reline all 6800 lineal feet of the
sanitary sewer with a cured-in-place pipe liner. The plan also required
the existing walls of the sanitary sewer to provide the structural support
for the lining. The liner could not function without the existing sewer
walls because it relied upon the existing structure of the sewer for its
support and integrity. Other than enlarging two manhole covers, the
contractor made no other structural changes to the sanitary sewer.
During the relining of the sewer, the contractor was required to maintain
the flow of waste through the system.
In order to place the liner in the existing sewer, Insituform’s
employees were required to enter the sewer. For the hazards the workers
encountered in the sewer, the permit-required confined spaces standards
provide more protection than the construction employment standards.
Examining the sewer project in this light, we conclude the record
supports the finding that the City was maintaining the existing sewer
line because the work done in the sewer was not to fix a specific defect in
the sewer, but rather to refurbish it by keeping it in good working order.
Accordingly, substantial evidence supports the commissioner’s
interpretation and the appeal board’s finding that the general industry
permit-required confined spaces standards apply to this case rather than
the construction employment standards.
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VIII. Host Employer Violations.
The commissioner’s complaint alleges the City violated 29 C.F.R.
section 1910.146(c)(8)(i), (iii), as incorporated in Iowa’s administrative
rules. These standards provide:
When an employer (host employer) arranges to have
employees of another employer (contractor) perform work
that involves permit space entry, the host employer shall:
(i) Inform the contractor that the workplace contains permit
spaces and that permit space entry is allowed only through
compliance with a permit space program meeting the
requirements of this section;
...
(iii) Apprise the contractor of any precautions or procedures
that the host employer has implemented for the protection of
employees in or near permit spaces where contractor
personnel will be working[.]
29 C.F.R. § 1910.146(c)(8)(i), (iii). Although the City stipulated that it did
not comply with the duties created by these standards, the City claims it
is not required to comply with any duties under these standards because
it is not a “host employer.” We disagree.
By giving the commissioner both the authority to promulgate
Iowa’s occupational safety and health standards and the ability to make
conclusive all determinations regarding the issuance of a standard, if
supported by substantial evidence, the legislature vested the
interpretation of standards with the commissioner. Iowa Code
§§ 88.5(1)(a), 88.5(10). As we did in division VI of this opinion, we will
give appropriate deference to the agency’s interpretation of the standards
and will only reverse the agency’s action based on an interpretation of
law that is “irrational, illogical, or wholly unjustified.” Id.
§§ 17A.19(10)(l), 17A.19(11)(c).
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The same rules of interpretation that apply to statutes apply to
regulations of an administrative agency. City of Iowa City v. State Bldg.
Code Bd. of Rev., 663 N.W.2d 868, 871 (Iowa 2003). The purpose of
statutory construction is to determine legislative intent. State v. McCoy,
618 N.W.2d 324, 325 (Iowa 2000). The words chosen by the legislature,
not what it should or might have said determine legislative intent.
Painters & Allied Trades Local Union v. City of Des Moines, 451 N.W.2d
825, 826 (Iowa 1990). Words are given their ordinary and common
meaning by considering the context within which they are used absent a
statutory definition or an established meaning in the law. Midwest Auto.
III, L.L.C. v. Iowa Dep't of Transp., 646 N.W.2d 417, 426 (Iowa 2002). In
addition, we may consider the legislative history of a statute when
ascertaining legislative intent. State v. Allen, 708 N.W.2d 361, 366 (Iowa
2006).
Despite a list of definitions set forth in 29 C.F.R. section
1910.146(b), there is no definition for “host employer.” See generally 29
C.F.R. § 1910.146(b). The common meaning of “host” is a person or
entity that invites guests onto its premises. See Webster’s Third
International Dictionary 1094 (unabr. ed. 2002) (defining host as “one
who receives or entertains guests or strangers socially or commercially”).
It is clear from the context of the standards, “host employer” means an
employer that has another employer’s employees perform work on the
first employer’s premises. Not only does the common understanding of
the word “host” require this interpretation, the legislative history of the
standard confirms this interpretation.
Legislative history contained in the Federal Register confirms that
a host employer is an employer that has another employer’s employees
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perform work on the first employer’s premises. Permit Required
Confined Spaces, 59 Fed. Reg. 24,080, 24,091 (June 5, 1989) (codified at
29 C.F.R. pt. 1910). The United States department of labor in a notice of
proposed rulemaking regarding 29 C.F.R. part 1910 indicated a host
employer is the individual who controlled the permit-required confined
spaces. See id. (stating “[p]roposed (c)(10) requires individuals who
control permit spaces (host employer) to provide contractors (or similar
employers) who plan to have employees enter these permit spaces with
all available information on permit space hazards; on efforts to comply
with the standard; and on any other hazards, safety rules or emergency
procedures” (emphasis added)). In a later notice of proposed rulemaking
regarding 29 C.F.R. part 1910 the department disclosed it received a
comment from its advisory committee on construction safety and health
requesting that the work site owner or the host employer be responsible
for compliance with the proposed rule. Occupational Exposure to
Methylene Chloride, 57 Fed. Reg. 36,964, 36,967 (Aug. 17, 1992)
(codified at 29 C.F.R. pts. 1910, 1915, 1926) (stating “the Committee
suggested that the Agency consider designating the work site owner, or
‘host’ employer as being responsible for overall work site safety”
(emphasis added)).
Finally, when OSHA issued its final rules for 29 C.F.R. part 1910,
it explained the purpose of 29 C.F.R. section 1910.146(c)(8) is to “enable
. . . contractors to develop and implement permit space programs that
satisfy section 1910.146.” Permit-Required Confined Spaces, 59 Fed.
Reg. 4462, 4492 (Jan. 14, 1993). In referring to the obligations of the
host employer, one commenter referred to the host employer as host
company. Id. (stating “[i]n many circumstances, it is absolutely vital to
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the safety of all workers that confined space entries in existing process
facilities remain under the close control of the host company, using one
common and consistent set of procedures established for the facility,
conforming to the OSHA rule” (emphasis added)). Another rulemaking
participant equated the host employer to the owner/operator. Id. at
4493 (stating “OSHA should recognize that the owner/operator may not
have expertise in confined space entry and may only be able to provide
the contractor with a list of chemicals, their MSDSs and physical
information on the confined space. The owner/operator may be hiring an
experienced contractor to perform the work precisely because he
recognizes that he does not have the expertise to perform the task safely.
In such a situation, the owner could not be expected to advise the
contractor.” (Emphasis added.))
The record establishes the City was the owner of the sewer lines
where Insituform’s employees performed the work. Based on the clear
meaning of the words used in the standards and the legislative history
we cannot say the commissioner’s interpretation and appeal board’s
determination that the City is a “host employer” under 29 C.F.R. section
1910.146(c)(8) is “irrational, illogical, or wholly unjustified.”
IX. Penalties.
The commissioner alleged the violations by the City of 29 C.F.R.
section 1910.146(c)(8)(i), (iii) constituted serious violations under Iowa
Code section 88.14(2). The appeal board agreed with the commissioner’s
determination. The City claims substantial evidence does not support
these findings. Our review of the record reveals substantial evidence
supports the appeal board’s findings that these two violations are serious
violations.
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[A] serious violation shall be deemed to exist in a place of
employment if there is substantial probability that death or
serious physical harm could result from a condition which
exists, or from one or more practices, means, methods,
operations, or processes which have been adopted or are in
use, in such place of employment unless the employer did
not, and could not with the exercise of reasonable diligence,
know of the presence of the violation.
Iowa Code § 88.14(11). The purpose of the host employer standards is
twofold. First, the standards provide each contractor who works in a
permit-required space owned by another the local knowledge gained by
the owner, thereby furthering compliance with the general industry
standards. Second, the standards inform each contractor of any
hazards, safety rules, or emergency procedures that the owner identified
regarding the owner’s permit-required confined spaces. Permit Required
Confined Spaces, 54 Fed. Reg. at 24,091.
The City recognized that working in the sewers created a
substantial probability of death or serious physical harm and developed
its own sewer confined space entry procedures as required by the general
industry permit-required confined spaces standards. The City
distributed these standards to all City employees who entered its sewers.
Virtually every day, the City had an inspector at the work site. The
City should have known through the exercise of reasonable diligence that
it was a “host employer” under the permit-required confined spaces
standards, and therefore required to provide certain information to
Insituform before Insituform employees entered the sewer. The City also
should have known that the employees of Insituform entered the sewer
and when in the sewer, the workers were exposed to a substantial
probability of death or serious physical harm.
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Accordingly, there is substantial evidence supporting the appeal
board’s determination that the City’s violations were serious violations.
X. Conclusion and Disposition.
In conclusion, we find (1) the commissioner did not violate Iowa
Code section 17A.3 when he used federal interpretations of the OSHA
standards as a guide in interpreting those standards; (2) the City’s due
process rights were not violated when the commissioner and the appeal
board relied on the federal interpretations of the OSHA standards; (3) the
appeal board was correct in its interpretation of the general industry
permit-required confined spaces standards (29 C.F.R. section 1910.146);
(4) substantial evidence supports the appeal board’s conclusion that the
general industry permit-required confined spaces standards were
applicable to this sewer project; (5) the appeal board properly determined
that the City was a “host employer” under 29 C.F.R. section
1910.146(c)(8)(i), (iii); and (6) substantial evidence supports the appeal
board’s decision that the City committed two serious violations.
Accordingly, the district court should have affirmed the
employment appeal board’s decision. Therefore, we vacate the decision
of the court of appeals, reverse the district court’s decision, and remand
the case to the district court for an entry of judgment upholding the
appeal board’s decision.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED WITH
DIRECTIONS.