Filed 8/26/20 Walsh Shea Corridor Construction v. Cal. Occupational etc. CA2/2
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                         SECOND APPELLATE DISTRICT
                                        DIVISION TWO

 WALSH SHEA CORRIDOR                                             B300019
 CONSTRUCTORS,
                                                                 (Los Angeles County
           Plaintiff and Appellant,                              Super. Ct. No. BS172720)

           v.

 CALIFORNIA OCCUPATIONAL
 SAFETY AND HEALTH APPEALS
 BOARD,

           Defendant and Respondent;

 CALIFORNIA DIVISION OF
 OCCUPATIONAL SAFETY AND
 HEALTH,

      Real Party in Interest and
 Respondent.


      APPEAL from a judgment of the Superior Court of
Los Angeles County. Mitchell L. Beckloff, Judge. Affirmed.
      Monteleone & McCrory, Diana M. Dron and Patrick J.
Duffy for Plaintiff and Appellant.
      J. Jeffrey Mojcher, Chief Counsel, Aaron R. Jackson,
Autumn R. Gonzalez, and Andia Farzaneh, Industrial Relations
Counsel for Defendant and Respondent.
      Division of Occupational Safety & Health, Christopher
Grossgart, Rocio Y. Garcia-Reyes, and Eric L. Compere for Real
Party in Interest and Respondent.
                  _____________________________
      Petitioner and appellant Walsh Shea Corridor Constructors
(WSCC) appeals from the judgment entered in favor of
respondents California Occupational Safety and Health Appeals
Board (the Board) and real party in interest California Division
of Occupational Safety and Health (the Division) after the trial
court denied WSCC’s petition for writ of administrative
mandamus. WSCC’s petition sought to vacate the Board’s
decision affirming a citation issued by the Division against
WSCC for violating title 8, section 1630, subdivision (a)
(hereafter § 1630(a)), of the California Code of Regulations.1 We
affirm the judgment.
                          BACKGROUND
      WSCC contracted with the Los Angeles County
Metropolitan Transit Authority to construct the Crenshaw/LAX
Transit Corridor Project. The project included construction of a
subway station at the corner of Rodeo Road and Crenshaw
Boulevard (the Exposition site). Construction at the Exposition
site was a “cut-and-cover operation,” defined in the regulations as
“subway stations which are both physically connected to ongoing
underground construction operations and are covered in such a
manner as to create conditions characteristic of underground
____________________________________________________________
1     All further references are to title 8 of the California Code of
Regulations, unless otherwise specified.




                                  2
construction.” (§ 8403, subd. (a)(1).) In this case, the operation
involved digging an excavation, constructing a subway station at
the invert level, and then backfilling the excavation and
replacing the street.
      Beginning in January 2015, the Division and WSCC
discussed the need for a construction passenger elevator as
required by section 1630, subdivision (a) (hereafter § 1630(a)),
and whether an exception might apply. WSCC maintained that
section 1630 did not apply and that the industry standard was to
use stair towers as the primary means of ingress and egress to
the excavation site. WSCC argued that similar subway stations
had been built without use of a construction passenger elevator.
As an alternative to a construction passenger elevator, WSCC
proposed using an onsite crane with an attachable cage to be
used as needed. The Division rejected WSCC’s proposed
alternative because it did not provide continuous access. Despite
the absence of an approved alternative means of continuous
access, WSCC proceeded with the construction without installing
a construction passenger elevator.2
      The Division conducted an inspection of the Exposition site
in September 2015. At that time, the excavation at the
construction site was 800 feet long and 60 feet wide for the
southernmost two-thirds of its length, increasing to 100 feet wide
for the northernmost third of its length. As of September 21,
2015, the excavation was 65 feet deep. No construction
passenger elevator had been installed, and approximately 70
employees entered and exited the worksite by means of a stair
tower.
____________________________________________________________
2     WSCC, under protest, installed a construction passenger
elevator at the construction site in November 2015.




                                3
       The excavation had pieces of concrete decking covering
portions of its top at street level, leaving openings that were used
to carry materials and tools in and out of the excavation. The
Division’s inspection described the excavation as a box without a
top, with the pieces of decking arranged to create openings and to
allow cars, trucks, and buses to continue to drive on Crenshaw
Boulevard. The decking was not permanent and could be
removed and reconfigured as needed. Inside the excavation a
weldment of struts and steel walers had been constructed as a
shoring system, and slurry walls filled the excavation from street
level to the invert level. Following the inspection, the Division
issued a citation alleging a willful general violation of section
1630.
       WSCC appealed the citation, and the matter proceeded to a
hearing before Administrative Law Judge Howard Chernin.
Witnesses for both WSCC and the Division testified concerning
the Exposition site and the applicability of section 1630. WSCC
argued that section 1630 did not apply and that another
regulation, section 8403, governed instead.
       On September 5, 2017, ALJ Chernin issued a decision
upholding the citation in full. WSCC filed a petition for
reconsideration. On February 9, 2018, the Board issued a
decision upholding the general violation of section 1630 but
removing the willful classification.
       WSCC then filed a petition for writ of mandate in the
superior court. On March 25, 2019, the trial court denied the
petition, finding that the Board’s interpretation of section 1630
was not clearly erroneous and was supported by substantial
evidence. This appeal followed.




                                 4
                           DISCUSSION
I. Standard of review and general legal principles
      “‘On appeal from the judgment on a petition for writ of
administrative mandate in a case not involving fundamental
vested rights, as here, we review the agency’s findings, not the
superior court’s decision, for substantial evidence.’ [Citations.]
‘However, insofar as an appeal from an administrative
mandamus proceeding presents questions of law, our review is de
novo.’ [Citations.]” (State Dept. of Social Services v. Marin (2019)
34 Cal. App.5th 328, 334.)
      The interpretation of a regulation is a question of law
subject to de novo review. (Department of Industrial Relations v.
Occupational Safety & Health Appeals Bd. (2018) 26 Cal.App.5th
93, 100 (AC Transit).) A reviewing court accords an
administrative agency’s interpretation of its own regulation great
weight and deference, however, unless the interpretation is
unauthorized or clearly erroneous. (Lusardi Construction Co. v.
California Occupational Safety & Health Appeals Bd. (1991) 1
Cal.App.4th 639, 645 (Lusardi).)
      When interpreting an administrative regulation, the
ordinary rules of statutory construction apply. (AC Transit,
supra, 26 Cal.App.5th at p. 100.) The fundamental goal is to
ascertain and effectuate the agency’s intent in promulgating the
regulation. (Ibid.) To do so, we look first to the language of the
regulation itself, giving the words their plain and ordinary
meaning. (Id. at p. 101.) If the language is clear and
unambiguous, the inquiry goes no further. “‘“‘[W]here a word of
common usage has more than one meaning, the one which will
best attain the purposes of the [regulation] should be adopted,
even though the ordinary meaning of the word is thereby




                                 5
enlarged or restricted and especially in order to avoid absurdity
or to prevent injustice.’”’ [Citations.] Moreover, ‘[w]e do not
construe a regulation in isolation, but instead read it with
reference to the scheme of law of which it is a part, so that the
whole may be harmonized and retain effectiveness.’ [Citations.]”
(Ibid.)
II. Regulatory framework
       Title 8, division 1, chapter 4 of the California Code of
Regulations sets forth safety orders that apply to various
operations. As relevant here, subchapter 4 sets forth
construction safety orders (CSOs) and subchapter 20 tunnel
safety orders (TSOs).
       A. Construction safety orders
       Section 1630 is one of the CSOs set forth in subchapter 4.
The CSOs “establish minimum safety standards whenever
employment exists in connection with the construction,
alteration, painting, repairing, construction maintenance,
renovation, removal, or wrecking of any fixed structure or its
parts.” (§ 1502, subd. (a).) The term “structure” is defined as
“[t]hat which is built or constructed, an edifice or building of any
kind, or any piece of work artificially built up or composed of
parts joined together in some definite manner.” (§ 1504.)
       The CSOs “apply to all excavations not covered by other
safety orders for a specific industry or operation.” (§ 1502, subd.
(a).) At construction projects, the CSOs “take precedence over
any other general orders that are inconsistent with them, except
for [TSOs] or the Pressurized Worksite Standards in Article 154
of the General Industry Safety Orders.” (§ 1502, subd. (b).)
       Section 1630(a), the regulation at issue here, provides in
relevant part: “In addition to the stairways required in Section




                                 6
1629, a construction passenger elevator for hoisting workers shall
be installed and in operation on or in any building, or structure,
60 feet or more in height above or 48 feet in depth below ground
level. . . . [¶] The building or structure depth shall be determined
by measuring from ground level to the lowest floor level excluding
local depression such as sumps and elevator pits.”
       B. Tunnel safety orders
       The TSOs “establish minimum safety standards in places of
employment at tunnels, shafts, raises, inclines, underground
chambers, and premises appurtenant thereto during excavation,
construction, alteration, repairing, renovating or demolishing and
the following: [¶] (1) Cut-and-cover operations such as subway
stations which are both physically connected to ongoing
underground construction operations and are covered in such a
manner as to create conditions characteristic of underground
construction.” (§ 8403, subd. (a).)
       Section 8495 of the TSOs specifies acceptable means of
access in a shaft. It states in relevant part: “When a shaft is
used as a means of egress, the employer shall make advance
arrangements for power-assisted hoisting capability to be readily
available in an emergency, unless the regular hoisting means can
continue to function in the event of an electrical power failure at
the jobsite. . . . [¶] . . . There shall be two safe means of access in
shafts at all times. This may include a ladder and acceptable
hoisting system.”
       A shaft is defined in section 8405 of the TSOs as “[a]ny
excavation where its depth is at least twice its greatest cross
section dimension. The sides are nearly parallel or cylindrical. A
shaft is considered to be vertical if its alignment is within 20
degrees of vertical.”




                                  7
III. Applicability of section 1630
      WSCC advances several arguments as to why section 1630
did not apply to the Exposition site at the time the Division
issued the citation: (1) the CSOs did not apply because no “fixed
structure” was present or under construction at the time; (2) the
TSOs, and not the CSOs (including section 1630), exclusively
governed the excavation at the Exposition site; (3) the concrete
decking covering the excavation at the time was a “bridge” that
exempted the site from section 1630; and (4) the Exposition site
was a “shaft” in which the TSOs allow use of a hoisting device,
such as a cage attached to a crane, for emergency egress.
      A. Fixed structure
      The Board made a factual finding3 that WSCC was engaged
in the construction of a “structure” at the Exposition site at the
time the citation was issued. Substantial evidence supports that
finding. There was evidence that the excavation was cross-
braced with struts (heavy, 36-inch diameter pipes approximately
one-half to three-quarters of an inch thick), and walers (steel
beams connected by “very robust weldments” to steel soldier
beams). The conjoined struts and walers come within the
definition of a “structure” in section 1504 -- “[t]hat which is built
or constructed, an edifice or building of any kind, or any piece of
work artificially built up or composed of parts joined together in
some definite manner.”
      WSCC contends the struts and walers were not part of a
“fixed” structure within the meaning of section 1502 because they
were not permanent but rather a temporary shoring system that
would eventually be removed from the site. WSCC cites no
____________________________________________________________
3      Despite WSCC’s position at oral argument that this is a
legal issue, we accept it as factual.




                                 8
evidence in the record, however, to support its claim that the
structure was temporary. Even if the structure was temporary,
section 1502 would still apply because it covers “fixed” not
“permanent” structures. Section 1502 applies, moreover, not only
to construction and maintenance of a fixed structure, but also to
its removal or wrecking. (§ 1502, subd. (a).) Eventual removal of
the struts and walers would therefore not preclude application of
the CSOs at the time of the Division’s inspection.
       Substantial evidence supports the Board’s finding that the
struts and walers, joined together by “robust weldments,”
constituted a “fixed structure” within the meaning of sections
1502 and 1504. The CSOs, including section 1630, therefore
applied to the work undertaken at the Exposition site. (§ 1502.)
       B. The TSOs do not preclude application of section
1630
       WSCC contends section 1502, subdivision (a), read together
with section 8403, support its position that the TSOs exclusively
governed the Exposition site. The plain language of those
regulations undermines rather than supports WSCC’s argument.
       Section 1502, subdivision (a) states that the CSOs “apply to
all excavations not covered by other safety orders for a specific
industry or operation.” WSCC argues that a cut and cover
operation is an excavation covered by another specific industry
safety order, namely section 8403, and that the CSOs accordingly
do not apply.
       WSCC’s interpretation is inconsistent with the plain
language of section 1502, subdivision (b), which expressly
recognizes circumstances where both the CSOs and TSOs may
apply. Section 1502, subdivision (b) addresses potential conflicts
between the two sets of regulations:




                                 9
      “At construction projects, these Orders [CSOs] take
      precedence over any other general orders that are
      inconsistent with them, except for Tunnel Safety
      Orders or the Pressurized Worksite Standards in
      Article 154 of the General Safety Orders.”

       Section 1502, subdivision (b) resolves potential conflicts
between CSOs and TSOs. As the trial court noted in its written
ruling, WSCC’s interpretation of section 1502, subdivision (a)
would render section 1502, subdivision (b) superfluous because
there would never be a situation in which a CSO and a TSO were
in conflict.
       TSO sections 8495, subdivisions (a)(1) and (a)(3) are not in
conflict with CSO section 1630(a). Rather, as both the Board’s
decision and the trial court’s ruling note, the two sets of
regulatory provisions can be harmonized. Section 8495,
subdivision (a)(3) requires two means of continuous access, which
may include a ladder and a hoisting system. Section 8495,
subdivision (a)(1) requires the employer to have a power-assisted
hoisting system available for use in an emergency, unless the
regular hoisting system can function during an electrical power
failure. Section 1630(a) requires a construction passenger
elevator when an excavation extends more than 48 feet below the
surface. The construction passenger elevator required by section
1630(a) is one of the two means of access under section 8495,
subdivision (a)(3). If the elevator cannot function during a power
outage, then section 8495, subdivision (a)(1) requires the
employer to have a readily available alternate hoisting system
that can function during such a power outage. This
interpretation is bolstered by section 8495, subdivision (a)(18),
which includes construction elevators as an acceptable hoisting




                                10
system.4 Both section 1630(a) and section 8495, subdivision (a)
could apply to the Exposition site.
      C. Whether the Exposition site was exempt from
section 1630
      We reject WSCC’s argument that the Exposition site was
exempt from the construction passenger elevator requirement
because an exception set forth in section 1630(a) applied. Section
1630(a) allows an alternate means of access at jobsites where
unusual site conditions make installation of a construction
passenger elevator infeasible:
      “Exceptions: . . . At work locations where unusual
      site conditions or unusual structural configurations
      exist, alternate means of access in conformance with
      Section 1630(c) shall be permitted.”

      “Note: For the purposes of this Section, unusual site
      configurations are considered to exist at those work
      locations where the installation of a construction
      passenger elevator is not feasible.”

      “Unusual site conditions or configurations are
      bridges, steel tank erection, dams, water towers,
      antennas, cooling towers, refinery towers, stacks,
      prefabricated parking structures, tower cranes, etc.”


____________________________________________________________
4     Section 8495 governs hoisting equipment and systems.
Section 8495, subdivision (a)(3) states: “There shall be two safe
means of access in shafts at all times. This may include a ladder
and acceptable hoisting system.” Section 8495, subdivision
(a)(18) states: “Construction elevator-type hoists as defined in
the Construction Safety Orders shall comply with the California
Code of Regulations, Title 8, Article 14 of the Construction Safety
Orders.”




                                11
      WSCC contends the concrete decking covering the
excavation at the Exposition site was a bridge, citing the
testimony of a witness at the administrative hearing who
described the decking as a “major bridge.”
      At unusual site conditions, such as a bridge, section 1630,
subdivision (c) allows an employer to use an alternate means of
access acceptable to the Division:
      “At unusual site conditions or structure
      configurations, the Division shall permit alternate
      means of access, consisting of one or more, but not
      limited to, the following:

      “(1) Use of personnel platforms designed, constructed,
      and operated as specified by Section 5004 of the
      General Industry Safety Orders, and only under the
      conditions permitted by the general requirements of
      that section.

      “(2) Use of suspended power-driven scaffolds where
      employees are protected by safety belts secured to
      independent safety lines by means of a descent
      control device acceptable to the Division.

      “(3) Use of appropriate vehicle-mounted elevating
      and rotating platforms.

      “(4) Use of other means, such as inclined elevators,
      etc. acceptable to the Division, presented in written
      form and acceptance granted prior to use.”

      An employer bears the burden of establishing that this
exception applies. (Chicago Bridge & Iron Co., Cal/OSHA App.




                                12
76-1082, Decision after Reconsideration (Feb. 4, 1980).5 To do so,
the employer must demonstrate (1) the existence of an unusual
site condition or structural configuration, and (2) an alternate
means of access in conformance with section 1630, subdivision (c).
(Ibid.)
       The Board in this case found an unusual site condition
existed at the Exposition site, making installation of a
construction passenger elevator infeasible for the duration of the
project. The Board further found, however, that WSCC failed to
establish the second element of the exception because WSCC did
not comply, offer, or provide an alternate means of access in
conformance with section 1630, subdivision (c). Substantial
evidence supports the Board’s latter finding.
       The record shows that after a February 24, 2015 meeting at
which the Division informed WSCC that a construction passenger
elevator was required, WSCC sought to invoke the exception set
forth in section 1630(a). As an alternative means of access,
WSCC offered to make available a crane equipped for transport of
personnel consistent with section 5004 of the General Industry
Safety Orders (i.e., with an attachable cage capable of carrying a
person). WSCC would not agree, however, to make this
alternative means of access continuously available, but agreed to
do so only during shift changes and in the event of an emergency.
The Division refused to accept WSCC’s proposal to make the
crane with cage attachment only intermittently available, and
WSCC never received the Division’s approval for any alternate
means of access.
____________________________________________________________
5     Decisions of the Board are binding on the Division. (Lab.
Code, § 148.6; Nolte Sheet Metal, Inc. v. Occupational Safety &
Health Appeals Bd. (2020) 44 Cal.App.5th 437, 446, fn. 15.)




                               13
      The Board found that WSCC’s offer of intermittent access
did not meet the conditions for the exception, interpreting section
1630(a) and (c) in a manner most protective of workers:
      “[W]e find that the alternate means of access had to
      be available on a permanent or continual basis, not
      just during the circumstances identified by Employer.
      Requiring the availability of the alternate means of
      access ‘at all times’ better assures the health and
      safety of workers. In making this finding, we also
      note that the alternative means of access is meant to
      serve as a substitute for a construction passenger
      elevator, which is provided for access and egress on a
      permanent and continuous basis. Since the
      personnel platform will act as a substitute for the
      elevator, it stands to reason that it should have the
      same availability.”

      The Board’s interpretation of section 1630 is entitled to
great weight and deference as it is neither unauthorized nor
clearly erroneous. (Lusardi, supra, 1 Cal.App.4th at p. 645.) We
agree that the exception did not apply.
      D. Whether a shaft existed at the worksite
      The plain language of the applicable regulations does not
support WSCC’s claim that a shaft existed at the Exposition site.
Section 8405 of the TSOs defines a shaft as “[a]ny excavation
where its depth is at least twice its greatest cross section
dimension. The sides are nearly parallel or cylindrical. A shaft
is considered to be vertical if its alignment is within 20 degrees of
vertical. For purposes of these safety orders, shaft shall include
incline and raise (also see Incline and Raise).”
      At the time of the Division’s inspection, the excavation at
the Exposition site was 65 feet deep and approximately 800 feet
long and 60 feet wide for the southern two-thirds, and 100 feet




                                 14
wide for the northern one-third. Its depth, 65 feet, was not “at
least twice its greatest cross section dimension” and therefore did
not come within the definition of a shaft.
       WSCC argues, as it did at the administrative hearing
below, that if the “muck” opening in the concrete decking located
above the excavation was used to measure the dimensions of the
site, the excavation would come within the definition of a shaft.
The Board found, however, that the definition of a shaft refers to
the dimensions of the excavation, not the dimensions of the
opening above the excavation. The plain language of the
regulation supports that interpretation.
                           DISPOSITION
       The judgment is affirmed. Respondents are awarded their
costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                              ____________________________, J.
                              CHAVEZ

We concur:


__________________________, P. J.
LUI


__________________________, J.
ASHMANN-GERST




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