                                                        133 Nev., Advance Opinion    05
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA

                   SIERRA PACKAGING &                                    No. 71130
                   CONVERTING, LLC,
                   Appellant,
                   vs.
                                                                              FILE
                   THE CHIEF ADMINSTRATIVE                                    NOV 1 6 2017
                   OFFICER OF THE OCCUPATIONAL                                    tTH &BROWN
                   SAFETY AND HEALTH
                   ADMINISTRATION OF THE DIVISION                                      C

                   OF INDUSTRIAL RELATIONS OF THE
                   DEPARTMENT OF BUSINESS AND
                   INDUSTRY, STATE OF NEVADA; AND
                   THE OCCUPATIONAL SAFETY AND
                   HEALTH REVIEW BOARD,
                   Respondents.


                               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.


                   BEFORE SILVER, C.J., TAO and GIBBONS, JJ.

                                                    OPINION
                   By the Court, 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
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10) 1947B   e                                                                    n - cloz_O
                   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(0, 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.
                                    FACTS AND PROCEDURAL HISTORY
                               Respondent 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.
                               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

                         'When referring to the Occupational Safety and Health
                   Administration of other states or the federal government, we use the more
                   general term "OSHA."

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                   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



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                   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.

                         2There are several categories of OSHA violations, and the penalties
                   vary for the type of violation. See generally NRS Chapter 618; 51 C.J.S.
                   Labor Relations § 42 (2017).

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                                                   ANALYSIS
                               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).
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                                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 St 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
                                selection.
                                             (1) The employer shall assess the
                                workplace to determine if hazards are present, or
                                are likely to be present, which necessitate the use
                                of personal protective equipment (PPE).


                                      (f) Training.
                                             (1) The employer shall provide
                                training to each employee who is required by this
                                section to use PPE. Each such employee shall be
                                trained to know at least the following: . . .
                                            (iv) The limitations of the PPE.
                                The plain language of this regulation mandates training when
                    the employee is "required by this section" to use PPE. Under subsections
                    (a) and (d), PPE is required as "necessary" to protect against hazards.
                    Accordingly, the citation was proper if the employees' work exposed them
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                        to a hazard that required the use of PPE—here, if the employees were
                        exposed to heights that necessitated the use of fall protection equipment.
                                     29 C.F.R. § 1910.132 does not, however, clarify what evidence
                        NOSHA must present to show exposure to the hazard. Although Nevada's
                        appellate courts have not yet addressed this question, other jurisdictions
                        have held that, where a regulation requires exposure to a hazard, evidence
                        of actual exposure is not required so long as the record demonstrates
                        exposure was reasonably predictable.        See Or. Occupational Safety &
                        Health Div. v. Moore Excavation, Inc., 307 P.3d 510 (Or. Ct. App. 2013).
                                     In Moore Excavation, for example, the Oregon Occupational
                        Safety and Health Division cited a company under 29 C.F.R.
                        § 1926.1053(b)(16) for failing to tag as defective a damaged ladder and
                        remove it from service. Id. at 511. In reviewing the administrative law
                        judge's decision to vacate the citation, the Oregon Court of Appeals
                        addressed the burden of proof for that state's OSHA to show exposure to
                        the hazard. Id. at 514-16. The appeals court relied on the "rule of access"
                        promulgated by the federal Occupational Safety and Health Review
                        Committee, which the appeals court held "ultimately requires, simply,
                        that the agency prove that it was reasonably predictable that one or more
                        employees had been, were, or would be exposed to the hazard presented by
                        the violative condition at issue." Id. at 516; see also Gilles & Cotting, Inc.,
                        1976 CCH OSHD 91 20,448, 91 24,425 (No. 504, 1976) ("On balance we
                        conclude that a rule of access based on reasonable predictability is more
                        likely to further the purposes of the Act than is a rule requiring proof of
                        actual exposure."). The appeals court noted that this standard requires
                        more than a mere showing of access to the hazard, but less than proof of
                        actual exposure. Moore Excavation, 307 P.3d at 517.

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                               Similarly, the United States Court of Appeals for the Fourth
                   Circuit, while not using the term "rule of access," explained that, in
                   establishing an exposure to a hazard under 29 C.F.R. § 1926.501(b)(1),
                   OSHA must show a reasonable predictability that the employees either
                   were, or would be, in the "zone of danger."     N&N Contractors, Inc. v.
                   Occupational Safety & Health Review Comm'n, 255 F.3d 122, 127 (4th Cir.
                   2001). The United States Court of Appeals for the Ninth Circuit likewise
                   addressed employee exposure to the "zone of danger," concluding that
                   proof of actual exposure to the danger was unnecessary to establish a
                   violation of 29 C.F.R. § 1926.651(c)(2) where the evidence showed it was
                   reasonably predictable that the employees would be exposed to the danger.
                   R. Williams Constr. Co. u. Occupational Safety & Health Review Comm'n,
                   464 F.3d 1060, 1064 (9th Cir. 2006).
                               Although these cases do not address 29 C.F.R. § 1910.132, the
                   cases suggest a common theme that may be applied to that regulation:
                   where a rule requires OSHA to demonstrate employee exposure to a
                   hazard, OSHA meets its burden of proof by showing that it is reasonably
                   predictable that the employee was or would be exposed to the hazard in
                   the course of the employee's work. Importantly, this rule comports with
                   the language of 29 C.F.R. § 1910.132, a regulation focusing on the
                   potential for and probability of employee exposure to hazards, rather than
                   actual exposure. We therefore agree with the analysis set forth in Moore
                   Excavation and hold that where NOSHA is required to show exposure to
                   the hazard, NOSHA meets its burden of proof by demonstrating that it is




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                     reasonably predictable that the employees were or would be exposed to the
                     hazard. 3
                                  In the present case, the Board employed an incorrect standard
                     in rendering the underlying decision. Under 29 C.F.R. § 1910.132, the
                     citation was proper if the employees' work exposed them to a hazard that
                     required the use of PPE. Pursuant to the "rule of access," NOSHA could
                     meet its burden of proof here by showing it was reasonably predictable
                     that the employees were or would be exposed to hazardous heights
                     necessitating the use of PPE. Yet instead of focusing on exposure to
                     heights necessitating the use of PPE, the Board predicated its decision on
                     the employees' access to the PPE and concluded this access triggered 29
                     C.F.R. § 1910.132(f)'s training requirement. Under the "rule of access,"
                     however, this training requirement only comes into play if it was
                     reasonably predictable that the employees were or would be exposed to
                     hazardous heights requiring the use of PPE. As a result, we reject the
                     Board's interpretation of 29 C.F.R. § 1910.132 and conclude that its
                     resulting decision was grounded in an error of law that, in this case,
                     infected the proceedings and consequently prejudiced Sierra Packaging's
                     substantial rights. See Tatalovich, 129 Nev. at 590, 309 P.3d at 44.
                                  Pursuant to the "rule of access" we adopt today, the propriety of
                     the citation against Sierra Packaging needs to be reexamined under the
                     reasonable predictability standard, but this analysis must be carried out by
                     the Board in the first instance, as it is well established that courts may not
                     reweigh the evidence in reviewing an administrative decision.       See Nellis

                           3 We  note the district court addressed Moore Excavation and the
                     "rule of access," although the district court, like the Board, focused on the
                     employees' access to the PPE.


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                   Motors v. State, Dep't of Motor Vehicles, 124 Nev. 1263, 1269-70, 197 P.3d
                   1061, 1066 (2008) (providing that an appellate court reviewing an
                   administrative decision will not reweigh the evidence or reassess witness
                   credibility). Accordingly, we reverse and remand this case to the district
                   court with instructions to remand this matter to the Board to reevaluate
                   the evidence and reconsider its decision under the standard set forth in this
                   opinion.
                                                  CONCLUSION
                                 We adopt the "rule of access" standard as articulated in Moore
                   Excavation.    Under this standard, when a statute or regulation requires
                   NOSHA to establish employee exposure to a hazard, the Board's decision
                   regarding a NOSHA citation may be upheld if NOSHA presents substantial
                   evidence demonstrating that exposure to the hazard was or would be
                   reasonably predictable. Here, because the Board applied an incorrect
                   standard in evaluating the citation, we reverse and remand this case to the
                   district court for it to remand this matter back to the Board for further
                   proceedings in accordance with this opinion




                                                                                       C.J.
                                                        Silver




                                                   J.
                   Gibbons




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                       TAO, J., concurring:
                                    I agree with my colleagues that Nevada OSHA (NOSHA) erred
                       by applying a circular legal standard under which an employer's duty to
                       train kicks in whenever employees have access to safety equipment
                       regardless of whether any hazard is present or not, rather than the better
                       "rule of access" under which the duty to train arises only when it's
                       reasonably predictable that employees will actually be exposed to some
                       hazard that could hurt them. I therefore fully join the very thorough and
                       well-reasoned majority opinion that explains NOSHA's error quite well.
                                   But I would go a step further and find that there's a second,
                       larger problem here that ought to be thought through on remand before
                       this case goes any further. Although not quite pressed by the parties on
                       appeal (and, hence, why it's not the subject of the principal opinion), it
                       appears to me that NOSHA overstepped its regulatory authority by
                       levying a fine pursuant to an excessively broad and non-textual
                       interpretation of 29 C.F.R. § 1910.132, a regulation that, fairly read,
                       doesn't apply to the conduct at issue. This case might therefore be ripe for
                       dismissal because Sierra's conduct didn't violate the terms of § 1910.132
                       as actually written.
                                   There's an ongoing and active debate over how much quasi-
                       legislative power Congress can constitutionally delegate to executive
                       branch agencies, and how much deference courts owe to those agencies
                       when they engage in the quasi-judicial task of interpreting the law.     See
                       Gutierrez-Brizuela v. Lynch,    834 F.2d 1142, 1149 (10th Cir. 2016)
                       (Gorsuch, J., concurring) (questioning the constitutionality of Chevron
                       deference as violating the principle of separation of powers); Waterkeeper
                       All. v. Envir. Protect. Agency, 853 F.3d 527, 539 (D.C. Cir. 2017) (Brown,

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                     J., concurring) ("An Article III renaissance is emerging against the judicial
                     abdication performed in Chevron's name. If a court could purport fealty to
                     Chevron while subjugating statutory clarity to agency 'reasonableness,'
                     textualism will be trivialized.").   Cf. Tom v. Innovative Home Sys., LLC,
                     132 Nev. „ 368 P.3d 1219, 1230 (Ct. App. 2016) (Tao, J., concurring)
                     (noting practical problems with treating executive-branch advisory
                     opinions as if they were judicial decisions). This appeal goes to the very
                     heart of that debate, as I would conclude that NOSHA's case against
                     Sierra requires § 1910.132 to be interpreted in a way that exceeds any
                     authority actually delegated by Congress.
                                                            I.
                                 NOSHA filed its complaint against Sierra in September 2013,
                     and issued its decision imposing a fine in April 2014. These dates matter
                     because the regulation was significantly changed in November 2016 to add
                     29 C.F.R. § 1910.140, a new section that specifically addressed "personal
                     fall protection systems." But this section didn't exist before 2016, so
                     Sierra couldn't have violated it in 2013.
                                 Prior to 2016, 29 C.F.R. § 1910.132 was limited to addressing
                     chemical and environmental hazards that injure when breathed in or
                     when in contact with skin, ears, face, or eyes. When these hazards are
                     present, employers must provide personal protective equipment (PPEs),
                     along with training in how to use them, to all exposed employees.
                                 But NOSHA didn't charge Sierra with failing to provide PPEs
                     to employees facing potential injury from toxic environmental hazards. It
                     charged Sierra with failing to provide PPEs to employees working on an
                     elevated platform from which they could have fallen. But § 1910.132 has
                     nothing to do with this kind of danger, and the PPEs that § 1910.132

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                   describes wouldn't have prevented anyone from either falling or being hurt
                   if they did.


                                  The place to start is with the plain text of § 1910.132.   See
                   Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
                   Legal Texts 56 (2012) (It] he words of a governing text are of paramount
                   concern"). The scope of both the current and pre-2016 versions of
                   § 1910.132 is defined in paragraph (a), the "application" paragraph of the
                   regulation. Paragraph (a) states:
                                  Application. Protective equipment, including
                                  personal protective equipment for eyes, face, head,
                                  and extremities, protective clothing, respiratory
                                  devices, and protective shields and barriers, shall
                                  be provided, used, and maintained in a sanitary
                                  and reliable condition wherever it is necessary by
                                  reason of hazards of processes or environment,
                                  chemical hazards, radiological hazards, or
                                  mechanical irritants encountered in a manner
                                  capable of causing injury or impairment in the
                                  function of any part of the body through
                                  absorption, inhalation or physical contact.
                   NOSHA contends that the phrase "hazards of processes or environment" is
                   broad enough to encompass placing employees in situations where a
                   dangerous fall is reasonably predictable. Is NOSHA correct?
                                  The answer seems to me to be: NOSHA is correct only if the
                   lengthy phrase that closes the paragraph—"encountered in a manner
                   capable of causing injury or impairment in the function of any part of the
                   body through absorption, inhalation or physical contact"—is read to
                   qualify merely the term "mechanical irritants" that immediately precedes
                   it, and nothing else.



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                               But I don't read it that way. To me, the most natural meaning
                   of the closing phrase is that it's intended to qualify the entire list of
                   hazards set forth in paragraph (a), and not just the very last item on the
                   list. In other words, a violation of § 1910.132(f) can occur only if a hazard
                   capable of causing injury "through absorption, inhalation or physical
                   contact" is present. Read that way, § 1910.132 was designed to address
                   possible harm resulting from environmental hazards such as chemicals
                   and irritants or small objects flying about in the workplace that might
                   injure someone through skin contact or inhalation. The regulation has
                   nothing to do with preventing employees from falling from high places.


                               Why do I read the pre-2016 regulation that way?
                               First, reading it the way NOSHA wants us to would mean that
                   the first item in the list of hazards, "hazards of processes or environment,"
                   just dangles there with no additional definition or qualifier. But that
                   reading makes the phrase so broad and imprecise that it can cover any
                   kind of workplace "hazard" at all: noxious chemicals, slips and falls, slicing
                   injuries, malfunctioning machines, surly junkyard dogs running about,
                   and even attacks by deranged assassins or terrorists within the
                   "environment" of the workplace. And if the initial item on the list were
                   intended to have been so broad, then the entire rest of the list would be
                   totally unnecessary. Yet "no part of a statute should be rendered
                   nugatory, nor any language turned to mere surplusage, if such
                   consequences can properly be avoided." Indep. Am. Party v. Lau, 110 Nev.
                   1151, 1154, 880 P.2d 1391, 1392 (1994) (quoting Paramount Ins., Inc. v.
                   Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530,533 (1970)).
                               Second, the types of PPEs specifically set forth throughout the
                   pre-2016 version of 29 C.F.R. § 1910.132 consist of things like "eyewear"
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                   (paragraph (h)(2)), "metatarsal guards" (paragraph (h)(3)), "protective
                   clothing" (paragraph (a)), "respiratory devices" (paragraph (a)) and
                   "protective shields" (paragraph (a)). These are things that have nothing to
                   do with preventing employees from falling from heights, but quite a lot to
                   do with chemical or respiratory hazards that injure via absorption,
                   inhalation, and skin contact.
                                Third, the overall structure of the pre-2016 version of Title 29
                   assigns the risk of employee falls to Subparts "D" and "F." For example,
                   29 C.F.R. § 1910.28(a)(1) of Subpart "D" describes the subpart as
                   "requir[ing] employers to provide protection for each employee exposed to
                   fall and falling object hazards." 29 C.F.R. § 1910.28(b)(1)(i) further
                   clarifies a "fall hazard" as arising when employees are on a "walking-
                   working surface with an unprotected side or edge that is 4 feet (1.2 m) or
                   more above a lower level .. . ." But the provision that Sierra was charged
                   with violating isn't located anywhere within this subpart. Instead,
                   § 1910.132 is located several subparts away, in Subpart "I" (and, notably,
                   immediately preceded by Subpart "H" addressing "Hazardous Materials").
                   NOSHA's argument moves a provision from one subpart to the other. But
                   we aren't supposed to read regulations that way. Quite to the contrary,
                   "Eilf possible, every word and every provision is to be given effect (verba
                   cum effectu stint accipienda).    None should be ignored. None should
                   needlessly be given an interpretation that causes it to duplicate another
                   provision or to have no consequence." Scalia & Garner, supra, at 174
                   (footnote omitted).
                               Furthermore, NOSHA's interpretation of § 1910.132(a) would
                   give it breathtaking scope and reach. Subpart "D" defines a "fall hazard"
                   as occurring only at four feet or higher. But according to NOSHA, the

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                   "hazard" of § 1910.132(a) of Subpart "I" includes no height limitation, so
                   apparently it kicks in at any height. Thus, PPEs and PPE training are
                   required whenever an employee steps on anything even mere inches above
                   floor level—footstools, benches, even the single step of a staircase; every
                   employee now needs a PPE to walk up or down a stairway. Would it apply
                   to an employee who stands on his tippy-toes to reach something without a
                   PPE? If § 1910.132(a) means what NOSHA says it does, there's nothing to
                   prevent NOSHA from prosecuting that as a violation, as utterly absurd as
                   that seems.
                                 In short, the most plain and natural reading of the entirety of
                   the pre-2016 version of 29 C.F.R. § 1910.132 is that it's limited to hazards
                   that cause injury through "absorption, inhalation or physical contact," and
                   doesn't cover the risk of falling created by having employees work in high
                   places. NOSHA cited and relied upon the wrong regulation in imposing its
                   fine, and it's no longer clear what the outcome might have been had it
                   cited one that did apply (perhaps, but not certainly, subpart "D") and
                   allowed Sierra to mount a defense against it.
                                                         IV.
                                 Nonetheless, NOSHA argues that its legal interpretation of
                   the regulations at issue ought to be given deference. That's true, to a
                   point. But only to a point. Courts give deference only to agency
                   interpretations of law that are "reasonable" and within the language of the
                   governing regulation and statutes. See Chevron, U.S.A., Inc. v. Nat. Res.
                   Del Council, Inc., 467 U.S. 837 (1984); see also Taylor v. Dep't of Health &
                   Human Servs., 129 Nev. 928, 930, 314 P.3d 949, 951 (2013) (under the
                   Nevada Administrative Procedures Act, courts defer to agency
                   interpretations of their governing statutes or regulations if the
                   interpretation is within the language of the statute).
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                                NOSHA's interpretation strikes me as neither; it's an
                   interpretation that re-writes a clear regulation of relatively limited scope
                   into an ill-defined one of almost boundless and unlimited scope, with scant
                   regard for the actual text. If we're required to give deference to an
                   interpretation as far-reaching and atextual as this one with precious little
                   judicial review over the end result, I wonder if Judge (now Justice)
                   Gorsuch wasn't right to question whether it makes constitutional sense to
                   give so much power to interpret the meaning of a regulation to the very
                   agency charged with prosecuting alleged violations of it.        See Gutierrez-
                   Brizuela, 834 F.2d at 1149.
                                The very purpose of requiring that federal regulations be
                   published for all the world to see is to give fair notice to potential violators
                   of the precise conduct prohibited under pain of administrative sanction.
                   See Oliver W. Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 459
                   (1897) (written law serves to notify when the state will bring its force to
                   bear, and "a bad man has as much reason as a good one" to want to know
                   when "the axe will fall"). Congress delegated some rule-making power in
                   this arena to federal OSHA to define what conduct ought to be punished.
                   But once OSHA exercised that delegated power and promulgated
                   something into the Code of Federal Regulations, I doubt that Congress
                   intended that its state counterparts could subsequently re-cast the
                   meaning of those words on the fly, totally ad hoc, under the rubric of
                   "agency interpretation," in order to penalize some unrelated conduct that
                   OSHA's own published words don't reasonably cover. That strikes me as
                   the very definition of "arbitrary," not to mention a serious due process
                   problem to boot.



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                                Once written, words are supposed to have a fixed meaning that
                   ought to be more or less understandable to any reasonable person endeavoring
                   to read them with an eye toward avoiding penalty.        See Scalia & Garner,
                   supra, at 78 ("Words must be given the meaning they had when the text was
                   adopted."). It's true that litigants and lawyers may, and constantly do, argue
                   over shades of meaning when the written words are unclear. But when words
                   are clear, what shouldn't be the subject of argument is whether they have any
                   definite meaning at all. Government agencies aren't supposed to be able to
                   prosecute anyone they want whether or not the targeted conduct bears any
                   relation to words published anywhere in any regulation or statute. Law isn't a
                   looking-glass world where words mean whatever happens to be most
                   convenient in one moment and something very different in the next.          See
                   Lewis Carroll, Through the Looking-Glass 188 (Signet Classic 2000) ("When I
                   use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just
                   what I choose it to mean—neither more nor less.' 'The question is,' said Alice,
                   'whether you can make words mean so many different things.").
                                OSHA drafted a regulation and made it law through the regular
                   procedures of the Administrative Procedures Act. Having done so, it (and its
                   state counterpart agencies) ought to stand by the original meaning of its own
                   regulation and not try to make it now mean something else.        CI Brett M.
                   Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2150
                   (2016) ("Chevron encourages the Executive Branch (whichever party controls
                   it) to be extremely aggressive in seeking to squeeze its policy goals into ill-
                   fitting statutory authorizations and restraints.").
                                                           V.
                                Consequently, while I fully agree that a remand is necessary,
                   on remand I would suggest that the parties and the Board seriously

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                   reconsider whether the words of the regulation relied upon by NOSHA bear
                   any reasonable relationship to Sierra's conduct or whether instead this
                   entire case shouldn't just be dismissed outright.


                                                                                ,   J.
                                                       Tao




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