OR-OSHA v. Loy Clark Pipeline, Co.

205

Argued and submitted April 1, reversed and remanded June 8, petition for

review denied November 23, 2022 (370 Or 471)

OCCUPATIONAL SAFETY

& HEALTH DIVISION,

Petitioner,

v.

LOY CLARK PIPELINE, CO.,

Respondent.

Workers’ Compensation Board

1700028SH; A171747

514 P3d 544

In this review from a decision of the Workers’ Compensation Board, the

agency contests the board’s determination that employer did not violate certain

workplace safety rules related to an excavation in northwest Portland. About 30

days before the scheduled hearing, the administrative law judge (ALJ) rejected

the agency’s amendment to the workplace safety citation by concluding that the

amendment would delay the hearing and that the amendment amounted to a new

violation under applicable administrative rules. Among other things, the agency

assigns error to the ALJ’s decision to reject the amendment to the citation.

Held: The ALJ erroneously interpreted the applicable rule related to the timing

of amendments. Although an ALJ may set a schedule for a contested case, includ-

ing limiting the timing of amendments, such limit must be communicated to the

parties before an amendment is filed. Absent a different schedule communicated

to the parties, an ALJ is without discretion to reject an amendment on timing

grounds. As the agency’s amendment in this case merely clarified the factual

allegations it intended to prove at the hearing and did not change the time or

place of the alleged violation, nor allege a violation of a different safety rule, the

amendment did not constitute a new violation within the meaning of the rules.

Reversed and remanded.

Erin K. Galli, Assistant Attorney General, argued the

cause for petitioner. Also on the briefs were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

James S. Anderson argued the cause for respondent.

Also on the brief were George W. Goodman and Cummins,

Goodman, Denley & Vickers, P. C.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

PAGÁN, J.

Reversed and remanded.

206 OR-OSHA v. Loy Clark Pipeline, Co.

PAGÁN, J.

Petitioner, Oregon Occupational Safety and Health

Administration (OR-OSHA) seeks review of a Workers’

Compensation Board (WCB) order, following a hearing

before an administrative law judge (ALJ), which concluded

that OR-OSHA failed to establish a violation arising from

an excavation in northwest Portland. OR-OSHA alleged

that employer, Loy Clark Pipeline Company, failed to obtain

“locates” for underground utilities prior to digging at a work

site.1 In October 2016, employer’s workers struck an under-

ground natural gas line, causing a leak and, eventually, a

series of explosions.

OR-OSHA advances a number of arguments on

review; however, as we conclude that OR-OSHA is correct

that the ALJ erred by not allowing OR-OSHA’s amendment

to the citation prior to hearing, we write only to address that

assignment of error. Our resolution of that issue obviates

the need to address OR-OSHA’s arguments related to the

ALJ’s order on reconsideration and the ALJ’s determination

that employer had complied with the applicable safety rules.

We reverse and remand.

Although the relevant facts are largely procedural,

to provide context, we briefly summarize the background

facts giving rise to this review.

BACKGROUND

In 2016, employer was performing excavation and

utility work at a construction site in northwest Portland,

near the intersection of NW 23rd Avenue and NW Glisan

Street, including installation of an underground conduit and

a new power pole on the north side of NW Glisan. Employer

obtained “locate” marks for the underground utilities in

that area on July 12, 2016. A photograph in the appellate

record taken around July 12 depicts a yellow dashed paint

marking from the street, crossing the north sidewalk of NW

1

“Locate” marks are color-coded marks that depict the approximate surface

location for underground utilities. See generally OAR 952-001-0010(12) (defining

“marks” to include “stakes, paint or other clearly identifiable material, to show

the field location or absence of underground facilities at a proposed work site”);

OAR 952-001-0070 (explaining marking for underground facilities).

Cite as 320 Or App 205 (2022) 207

Glisan, and ending at a natural gas meter on the side of a

building. On July 19, employer’s crew removed a portion of

the sidewalk, excavated, and installed several power con-

duits, before later covering the opening with a temporary

asphalt patch. Notably, the marks that were on the portion

of sidewalk that was removed were lost and no new marks

were made on the asphalt patch.

In September 2016, employer had a separate project

on the south side of NW Glisan Street; that project was not

related to the July project. Employer obtained locate marks

for the south side project before excavation.

On October 19, 2016, employer started work on

another project on the north side of the street—this time to

install a junction box for a Comcast line—in the same area

as the July excavation. The foreman for the October job had

not been on the July job, so, although he was aware of pre-

vious excavations in the area, he did not know the specific

details. No new locate marks were made for the October job.

When the crew arrived, the marks from the July 12 utility

locate were faint and faded, in particular the yellow marks

that indicated natural gas lines. The foreman observed the

work site, saw some of the locate marks, and thought he

could see “what was going where.” All three of employer’s

workers saw markings for underground gas lines near the

excavation site, but none of them thought the line was run-

ning through the area to be excavated. Using saws and a

backhoe, the workers removed a portion of the asphalt patch

and concrete sidewalk. As the foreman was using the back-

hoe to remove gravel underneath the sidewalk, the backhoe

caught a natural gas line, causing a leak. A number of explo-

sions occurred as a result, injuring eight people and causing

more than $17 million in property damage.

Afterward, the foreman and another worker saw a

yellow locate mark on the street curb and another yellow

mark on the street that indicated a one-inch natural gas

line near the excavation. The foreman had parked the back-

hoe over the locates from the July 2016 job, and so he had

not seen them that morning. He testified that, had he seen

those marks, he would have known there was a natural gas

line in the work area.

208 OR-OSHA v. Loy Clark Pipeline, Co.

OR-OSHA investigated the incident and noted that

after the locate marks were placed in July, employer exca-

vated in the area, installed conduit, and closed the excavation

with temporary asphalt. One OR-OSHA officer noted that

part of the July locate marks had been removed during the

July job and had not been replaced. An OR-OSHA manager

noted that the yellow natural gas mark on the curb was faint.

After the investigation, OR-OSHA issued employer

a citation for violating 29 CFR § 1926.651(b)(1), which

requires:

“The estimated location of utility installations, such

as sewer, telephone, fuel, electric, water lines, or any

other underground installations that reasonably may be

expected to be encountered during excavation work, shall

be determined prior to opening an excavation.”

Under the statutory and regulatory authority cre-

ated by the Oregon Safe Employment Act (OSEA), OR-OSHA

“has promulgated rules setting safety and health standards

for a vast range of workplaces and occupational activities.”2

OR-OSHA v. United Parcel Service, Inc., 312 Or App 424,

432, 494 P3d 959 (2021). OAR 437-003-0001(16)(b) adopts 29

CFR § 1926.651 in full.

In the original citation proposing $4,900 in penal-

ties, OR-OSHA alleged:

“On October 19, 2016, the excavator operator struck a

1-inch steel natural gas line located at the northeast cor-

ner of NW Glisan at NW 23rd, causing an explosion in a

nearby building and significant damage to other structures

in the area. During this particular phase of the work, the

employer did not obtain locates for the area in which the

excavator damaged the 1-inch line. Locates had been done

for other sections of the project.”

Employer requested a hearing on the matter, and

the parties engaged in discovery. About two years later, and

approximately 30 days before the hearing was scheduled to

take place, OR-OSHA filed an amendment to the citation.

The amended citation alleged:

2

“ORS 654.001 to 654.295, 654.412 to 654.423, 654.750 to 654.780 and

654.991 may be cited as the Oregon Safe Employment Act.” ORS 654.001.

Cite as 320 Or App 205 (2022) 209

“On October 19, 2016, the employer’s excavator operator

struck a 1-inch steel natural gas line located underground

near the northeast corner of NW Glisan at NW 23rd, which

was a gas line that may reasonably have been expected

to have been encountered. A resulting explosion occurred

in a nearby building that caused significant damage to it

and other structures in the area. During this particular

phase of the work, prior to opening the excavation, the

employer did not adequately determine through locates or

other acceptable means the estimated location of the gas

line that was damaged. Locates had been done for other

sections of the project.”

Employer moved to vacate the amended citation,

arguing that “OR-OSHA decided that it had the right to

unilaterally amend the citation in this case without first

getting authorization from the forum,” and that the amend-

ment was “in essence, a brand new citation.” According to

employer, the statement of facts upon which the citation was

based “constitute[d] a new and different manner in which

Employer allegedly violated 29 CFR 1926.651(b)(1),” and the

new citation was made well after the 180-day limit set out

in ORS 654.071(3).

OR-OSHA responded that, under the applicable

administrative rules, in particular, OAR 438-085-0526,

OR-OSHA had the right to amend the citation until the date

and time set for hearing, and that the amendment “simply

describe[d] with more particularity [employer’s] conduct,

which OR-OSHA intends to prove at hearing.”

The ALJ determined that the rule was “condi-

tional,” that is, “providing the ALJ with discretion to not

allow such amendments.” Moreover, the ALJ determined

that the amendment “change[d] the nature of the employer’s

conduct,” was “substantially different” from the original

citation, and therefore was a “new” citation when compared

to the original. The ALJ struck the amendment and pro-

ceeded to hearing on the original allegation.

A hearing was conducted and the ALJ ultimately

dismissed the citation, having determined that employer

had obtained locates prior to excavation. This petition for

review followed the ALJ’s order and later reconsideration.

OR-OSHA raises three assignments of error. The first

210 OR-OSHA v. Loy Clark Pipeline, Co.

issue relates to an amended order issued by the ALJ after

OR-OSHA filed this petition for review. OR-OSHA argues

that the ALJ did not have jurisdiction to issue an amended

order after the petition for review was filed.3 Second,

OR-OSHA assigns error to the ALJ’s determination that

employer did not violate 29 CFR § 1926.651(b)(1). Finally,

OR-OSHA assigns error to the ALJ’s decision to strike the

amended citation, requiring OR-OSHA to proceed at the

hearing on the original citation. As noted above, because

we conclude that the decision to strike the amended citation

was error, we do not reach the merits of OR-OSHA’s first

and second assignments of error.

ANALYSIS

On review, as framed by the parties, we must first

consider what standard of review applies. OR-OSHA con-

tends that a legal error standard of review applies to the

ALJ’s interpretation of OAR 438-085-0526. Employer con-

tends that, because OAR 438-085-0526 is a rule promul-

gated by the WCB, the board, acting through the ALJ,

interpreted the rule and such interpretation is entitled to

deference if plausible and not contrary to law.

Courts are authorized to overrule an agency’s inter-

pretation of a rule if an agency has “erroneously interpreted

a provision of law.” ORS 183.482(8)(a). The relevant provi-

sions of law may include administrative rules. Don’t Waste

Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881

P2d 119 (1994). When an agency’s interpretation of a rule is

“plausible” and not “inconsistent with the wording of the rule

itself, or with the rule’s context, or with any other sources of

law,” we defer to that interpretation. Id. However, that defer-

ence is owed only to the authority that promulgated the rule,

not to interpretations made by those without policy-making

authority. Id. at 142 n 8; United Parcel Service, 312 Or App

at 442 (OR-OSHA’s interpretation of federal rule that had

been adopted by OR-OSHA was plausible and therefore

entitled to deference); Ring v. Employment Dept., 205 Or App

532, 536, 134 P3d 1096 (2006) (distinguishing department

3

The parties do not dispute—and we agree—that this matter is properly

before us. Given our disposition on the third assignment of error, the validity of

the amended order is immaterial.

Cite as 320 Or App 205 (2022) 211

with policy making authority from ALJ without authority to

articulate policy through interpretation of rules).

In any event, we need not decide whether the ALJ’s

interpretation of OAR 438-085-0526 would be entitled to

deference, because we conclude that the interpretation is

“inconsistent with the wording of the rule itself, or with

the rule’s context,” and therefore, we would not defer to it.

In interpreting an administrative rule, we begin with the

text and context, just as we would for interpreting a stat-

ute. United Parcel Service, 312 Or App at 436. We may also

consider the rule’s adoption history. Brand Energy Services,

LLC v. OR-OSHA, 261 Or App 210, 214, 323 P3d 356 (2014).

We begin with the text.

OAR 438-085-0526 provides:

“(1) Unless otherwise provided by the Administrative

Law Judge, amendments to the citation and to the request

for hearing, including affirmative defenses, shall be allowed

up to the date and time set for hearing.

“(2) An amendment made by OR-OSHA under this

rule may not allege a new violation or increase a penalty.

“(3) Amendments made in accordance with this rule

are effective upon filing.

“(4) If a party is prejudiced by the timing of the amend-

ment, a postponement or continuance may be allowed.”

The dispute in this review turns on the interpreta-

tion, first, of section (1) and, later, when considering if the

amendment alleged a new violation, of section (2). The gen-

eral structure of section (1) begins with an apparent excep-

tion to the general rule stated after the first clause. The

use of the phrase “[u]nless otherwise provided” is commonly

understood to signal some exception to a general rule. See

State v. Connally, 339 Or 583, 590, 125 P3d 1254 (2005) (con-

cluding that the phrase “[u]nless otherwise provided” meant

an exception to the general rule); see also Webster’s Third

New Int’l Dictionary 2503 (unabridged ed 2002) (“unless: 1:

under any other circumstance than that: except on the con-

dition that”); id. at 1598 (“otherwise: 2: in different circum-

stances: under other conditions”). Unlike in many rules and

statutes, where the exception points to other provisions, the

212 OR-OSHA v. Loy Clark Pipeline, Co.

exception in this rule explains where “otherwise provided”

comes from: the administrative law judge hearing the case.

Thus, the ALJ may provide an exception to the general rule.

The general rule, in unambiguous terms, allows

either side to amend the citation or the responsive pleadings,

“up to the date and time set for hearing.” For our analysis,

the key idiom—“shall be allowed”—provides a limitation on

the authority of the ALJ to disallow amendments to either

the citation or responsive pleadings. See Williams v. Philip

Morris Inc., 344 Or 45, 59, 176 P3d 1255 (2008) (noting that

in statutes “shall” generally indicates something is man-

datory); Webster’s at 2085 (“shall: 2b - used in laws, regu-

lations, or directives to express what is mandatory”). The

words and structure of the general rule in section (1) indi-

cate that either side may file amendments, at any time after

the citation is served or the request for hearing is made,

up until the hearing commences. That general rule of sec-

tion (1) addresses only the timing of when an amendment is

allowed to be filed and places no substantive limitations on

an amendment.

The location of the exception to the general rule

within section (1), coupled with the narrow temporal limita-

tion, provides insight as to what type of exception the ALJ

may make—a limitation on when amendments may be filed.

Given the mandatory language of the general rule govern-

ing when amendments are allowed, we are led to the log-

ical conclusion that an ALJ may limit when amendments

are allowed but must provide the parties guidance about

those limitations in advance. That is to say that an ALJ

may inform the parties that amendments must be served

and filed at a time earlier than the “date and time set for

hearing,” but without having done so before an amendment

is filed, the ALJ is without discretion, under section (1), to

deny an amendment as untimely. We can conceive of no

other meaning that harmonizes both the general rule and

the exception contained in section (1). As in statutory con-

struction, interpretation of a rule should give effect to each

provision in it. See, e.g., Force v. Dept. of Rev., 350 Or 179,

190, 252 P3d 306 (2011) (statutory provisions interpreted to

give effect to all); Growing Green Panda v. Dept. of Human

Cite as 320 Or App 205 (2022) 213

Services, 302 Or App 325, 332, 461 P3d 1026, rev den, 366

Or 552 (2020) (applying statutory construction framework

to administrative rule). Accepting employer’s argument that

the ALJ has after-the-fact discretion to disallow amend-

ments would alter the mandatory nature of the word “shall”

in a manner that is inconsistent with our historical under-

standing of that term.

The contextual setting for OAR 438-085-0526 pro-

vides additional support for the likely meaning of section (1).

Consider the remedy provision of section (4). That provision

provides that the ALJ may, at the ALJ’s discretion, post-

pone or continue a case “[i]f a party is prejudiced by the tim-

ing of the amendment.” Similar language in another pro-

vision promulgated by the WCB has been construed as “a

classic grant of discretion to the ALJ.” SAIF v. Kurcin, 334

Or 399, 405, 50 P3d 1167 (2002) (discussing OAR 438-006-

0091 which provides, in part that “[t]he Administrative Law

Judge may continue a hearing for further proceedings”). It

would be inconsistent to read the different language between

sections (1), using the word “shall,” and (4), using the word

“may,” pertaining to the ALJ to mean the same thing. Thus,

an ALJ may remedy prejudice flowing from the timing of

an amendment but may not, without previously setting a

different schedule, deny the amendment solely on timing

grounds.

Employer’s contextual argument relies on a state-

ment of policy contained in OAR 438-085-0805, which spec-

ifies that it “is the duty of the [ALJ] to conduct a fair and

impartial hearing and to avoid delay.” We fail to see how a

general statement of duty for the ALJ can transform the

mandatory language of OAR 438-085-0526(1) into a matter

of discretion for the ALJ. That is particularly so when the

duty imposed on the ALJ is understood in context of the

broader policy expressed by the WCB in OAR 438-085-0017.

That rule provides:

“(1) It is the policy of the Board to provide for the

prompt and fair disposition of contested cases, encourage

settlements, formal and informal, consistent with the pur-

poses of the Act, and provide an impartial forum for hear-

ings on cases that cannot be resolved between the parties.

214 OR-OSHA v. Loy Clark Pipeline, Co.

“(2) These rules shall be liberally construed to carry

out the policy of the Board and the purposes of the Act.”

The broader policy expressed by the WCB promotes

the dual goals of both promptness and fairness in resolving

contested cases through an impartial forum. Absent a pol-

icy statement that prioritizes promptness above other stated

goals of either the WCB or the OSEA, we cannot read a gen-

eral duty to avoid delay as overriding the words selected by

the WCB and the context for the amendment rule.

As a consequence of the meaning of OAR 438-085-

0526(1) in context, the ALJ’s interpretation that it had dis-

cretion to reject OR-OSHA’s amendment is inconsistent

with the wording and context of the rule itself and there-

fore, implausible.4 Absent a different schedule previously set

by the ALJ, the ALJ erred by concluding that OR-OSHA’s

amendment could be rejected solely as a matter of ALJ

discretion.

Turning to our analysis of OAR 438-085-0526(2)

and whether the proposed amendment alleged a new vio-

lation, we return to the text. Section (2) provides that “[a]n

amendment made by OR-OSHA under this rule may not

allege a new violation or increase a penalty.” The question

on review is whether the ALJ erred by concluding that

OR-OSHA’s amendment to the factual allegations consti-

tuted a “new violation” within the meaning of the rule. The

question whether an amendment constitutes a “new viola-

tion” is one of law that we review for legal error. OR-OSHA

v. A&B Sheet Metal Works, LLC, 302 Or App 455, 458, 461

P3d 1094, rev den, 366 Or 760 (2020).

The term “new violation” is partially defined by

other administrative rules applicable to contested cases

under OSEA. “Violation” is defined to mean “[t]he breach of

a person’s duty to comply with an Oregon occupational safety

or health law, rule or order.” OAR 438-085-0026(26); see also

OAR 437-001-0015(63). The consequence of that definition

is that not all workplace accidents or injuries constitute a

4

We reach the same conclusion whether or not we afford deference to the

ALJ’s interpretation. It follows that if an interpretation of a rule is implausible,

the interpretation is also legal error, and would therefore require remedy regard-

less of what standard of review applied.

Cite as 320 Or App 205 (2022) 215

violation and, conversely, a violation can exist absent acci-

dent or injury. The relevant question reduces to whether a

duty was imposed by “law, rule or order,” and whether a per-

son’s actions or inactions breached that duty. Inherent in

whether a person’s actions or inactions breached a duty is

a nexus to time, place, and circumstances of how the duty

was breached. The administrative definition of “violation”

implies that a discrete set of factual conditions is the rele-

vant unit of measure to determine whether a violation has

occurred.

“New” is not defined in the relevant statutes or

rules, thus we assume a plain meaning, informed by, among

other things, dictionary definitions. See Growing Green

Panda, 302 Or App at 333-34. As used in the rule, “new”

is an adjective modifying “violation.” Likely definitions for

“new,” as an adjective, include “being other than the former

or old: having freshly come into a new relation (as use, con-

nection, or function) <turn a ~ leaf> <the ~ teacher> <a ~

product>” or “different or distinguished from a person, place,

or thing of the same kind or name that has longer or previ-

ously existed <the ~ reservoir> <the ~ theology>.” Webster’s

at 1522. Apparent from those definitions is a relative rela-

tionship between things being compared and a requirement

that sufficient difference exists between the things for the

latter to be considered “other than the former” or “different

* * * from * * * that [which] previously existed.”

The contextual setting for the definition of “vio-

lation” provides additional support to the inference that a

particular set of factual conditions is the relevant measure

for violations. See ORS 654.025(3)(c) (generally limiting

instances when “a state of facts or condition constitutes a

violation of more than one rule” to only one citation or one

penalty). The legislature, in defining a “serious violation,”

set the unit of measurement as “a condition which exists,

or * * * one or more practices, means, methods, operations

or processes which have been adopted or are in use.” ORS

654.086(2). That definition of serious violation, focusing on a

discrete set of facts or practices, adds considerable weight to

the understanding that a discrete and logically related group

of facts existing at a specific period in time is how a “vio-

lation” should be measured. See also ORS 654.071(2)(a) - (c)

216 OR-OSHA v. Loy Clark Pipeline, Co.

(requiring that a citation contain information as to date and

place, statement of facts, and reference to legal authority

for alleged violation); Assn. of Oregon Loggers v. Dept. of Ins.

and Finance, 130 Or App 594, 600-01, 883 P2d 859, rev den,

320 Or 493 (1994) (noting that ORS 654.025(3)(c) allows only

one punishment for a single “incident” or “state of facts or

condition” that may violate multiple rules).

The broader principles served by the “new violation”

rule include maintaining the 180-day limitation on citations

prescribed by statute, ORS 654.071(3), and preventing unfair

prejudice to the employer. The unfair prejudice principle is

animated by the need to provide an opportunity to prepare

an adequate defense. See, e.g., Sachdev v. Oregon Medical

Board, 292 Or App 778, 785, 426 P3d 118 (2018) (discuss-

ing the Oregon Administrative Procedures Act (APA), in

the context of disciplinary proceedings for medical profes-

sionals, and the contours of administrative notice require-

ments). Although, by its terms, the APA is not applicable to

cases brought under OSEA, see ORS 183.315(1), cases inter-

preting parallel language are useful.

The citation notice requirement of OSEA, ORS

654.071(2), requires among other things, a “plain statement

of facts upon which the citation is based,” and a “reference to

the law, regulation, rule, standard or order relied upon.” The

analogous APA provision, ORS 183.415(3), requires a “short

and plain statement of the matters asserted or charged,”

and a “reference to the particular sections of the statutes

and rules involved.” In Sachdev, we interpreted the APA

provision to require that a “notice of disciplinary action * * *

refer to the statute or rule upon which it relies as a ground to

impose discipline and must indicate which statutory ground

the board [would actually] press at the contested case hear-

ing.” 292 Or App at 788. When an agency has alleged more

than one statutory ground for discipline, the agency “may

not rely only on factual allegations to notify the licensee

of the statutory ground on which it will proceed.” Id.; see

also Murphy v. Oregon Medical Board, 270 Or App 621, 631,

348 P3d 1173 (2015) (notice did not provide adequate notice

of statutory bases for discipline); Villanueva v. Board of

Psychologist Examiners, 175 Or App 345, 358, 27 P3d 1100

(2001), adh’d to on recons, 179 Or App 134, 39 P3d 238 (2002)

Cite as 320 Or App 205 (2022) 217

(same). What Sachdev, Murphy, and Villanueva all imply is

that, in assessing whether a notice complied with the statu-

tory requirements, the importance of the factual conditions

(“a short and plain statement”) is somewhat attenuated when

compared to the statutory basis for imposing discipline. To

meet the statutory requirement for the statement of facts,

it is sufficient to explain when and where the occurrence

giving rise to discipline proceedings happened—the infor-

mation about how the facts violated a particular duty is tied

to the specific statutory basis portion of the notice. Stated

in terms of what the notice provision protects, a party can

reasonably understand the allegations against them when

the notice provides reference to the “particular sections of

statutes and rules involved” and factual detail about what

factual occurrence an agency will pursue. Sachdev, 292 Or

App at 793 (concluding that the notice provided sufficient

facts, notably a specific date and circumstances, to consti-

tute a plain statement of facts); see also Murphy, 270 Or App

at 631 (reversing when board’s conclusion was not based on

legal theories alleged in notice). The ability for a party to

understand, from the notice, the allegations against them is

the gravamen to the ability to prepare a defense.

A proposed amendment that does not allege new

operative facts or a violation of a different rule than orig-

inally cited should not impair a party’s ability to under-

stand the allegations against them or their ability to defend

against those allegations. In those circumstances, it is error

for an ALJ to conclude that the proposed amendment consti-

tuted a “new violation” under section (2).

Here, in both the original and amended citation,

OR-OSHA alleged that employer violated only a single appli-

cable safety rule. That rule imposes only the broad duty to

“determine[ ] prior to opening an excavation” the “estimated

location of utility installations.” 29 CFR § 1926.651(b)(1).

OR-OSHA originally alleged that employer “did not obtain

the locates” of the gas lines prior to excavation. The amended

citation alleged that employer failed to “adequately deter-

mine, through locates or other acceptable means, the esti-

mated location” of the gas lines. OR-OSHA did not allege

new operative facts or a different rule violation. To be sure,

OR-OSHA’s proposed amendment, as noted, changed some

218 OR-OSHA v. Loy Clark Pipeline, Co.

of the details with respect to how the duty was breached.

Importantly, OR-OSHA’s amendment did not change what

duty employer failed to meet, nor did it change when or where

the breach occurred, and for those reasons, the amendment

would not have impaired employer’s ability to prepare a

defense. OR-OSHA’s amended citation rephrased what it had

originally alleged: the actions employer took to ensure it was

aware of the utility lines in place before excavating did not

comply with the applicable rule. To the extent that “new vio-

lation” is shorthand for the requirements for notice—in fur-

therance of the interest in preparing a defense—discussed

in Sachdev, OR-OSHA’s amendment did not constitute an

allegation of a new violation.5 Employer struggles to identify

what new discovery, witnesses, or expert testimony would

be required if the amendment were allowed, and that diffi-

culty is consistent with our conclusion that the amendment

did not deprive employer of the ability to adequately prepare

for its defense. In this situation, the ALJ erred in conclud-

ing that the proposed amendment alleged a new violation,

because the amendment did not allege sufficiently different

facts to constitute a “new violation” under the definition in

the rules.

As we conclude that the ALJ impermissibly denied

OR-OSHA’s amendment to the citation, we need not address

the other assignments of error raised by OR-OSHA. We note

that whether OR-OSHA’s interpretation of the adopted fed-

eral rule, 29 CFR § 1926.651(b)(1), was entitled to deference

was, at the time of the administrative hearing, “an open

question in Oregon.” A&B Sheet Metal Works, 302 Or App

at 463 n 1. Since the hearing, we have determined that we

will defer to OR-OSHA’s interpretation of an adopted fed-

eral rule “if it is plausible given the text and context [of the

rule] and not inconsistent with any source of law.” United

Parcel Service, 312 Or App at 436. On remand, the ALJ may

have an opportunity, in the first instance, to determine if

5

In Sachdev, for instance, when determining that the Oregon Medical Board

failed to provide adequate notice, we focused on the fact that the board had origi-

nally alleged that the doctor in question provided “substandard care” to patients

but then proceeded on a theory that the doctor violated ORS 677.190(24) by pre-

scribing a controlled substance without following the accepted procedures. 292

Or App at 794. We concluded “[n]othing in the allegation could be reasonably

understood to convey that the board would proceed on [that] ground.” Id.

Cite as 320 Or App 205 (2022) 219

OR-OSHA’s interpretation of 29 CFR § 1926.651(b)(1) is

entitled to such deference.

Reversed and remanded.