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

IN THE SUPREME COURT OF IOWA

No. 81/ 04-1763

Filed September 29, 2006

CITY OF DES MOINES,

Appellee,

vs.

EMPLOYMENT APPEAL BOARD and
LABOR COMMISSIONER BYRON K. ORTON,

Appellants.
________________________________________________________________________

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Glenn E. Pille,

Judge.

The employment appeal board and labor commissioner seek

further review of an adverse ruling on the City’s petition for judicial

review. DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED WITH

DIRECTIONS.

Rick Autry, Des Moines, and Gail Sheridan-Lucht, Des Moines, for

appellants.

Mark Godwin, Deputy City Attorney, Des Moines, for appellee.
 2

WIGGINS, Justice.

The Iowa labor commissioner filed a complaint against the City of

Des Moines (City) for two serious violations of the general industry Iowa

occupational safety and health (IOSH) standards for permit-required

confined spaces in connection with two deaths and five injuries occurring

to the employees of a contractor while working on a sewer-relining

project for the City. The employment appeal board found the City

committed the two serious violations and assessed a total penalty of

$9000. The City sought judicial review of the appeal board’s decision.

The district court reversed the decision of the appeal board. The appeal

board and the labor commissioner appealed the district court’s decision.

We transferred the case to our court of appeals. The court of appeals

affirmed the district court’s decision. The appeal board and labor

commissioner then sought further review, which we granted.
On further review, we find (1) the commissioner did not violate

Iowa Code section 17A.3 (2001) when he used federal interpretations of

the United States occupational safety and health administration (OSHA)

standards as a guide in interpreting those standards; (2) the City’s due

process rights were not violated when the commissioner and the appeal

board relied on the federal interpretations of the OSHA standards; (3) the

appeal board was correct in its interpretation of the general industry

permit-required confined spaces standards (29 C.F.R. section 1910.146);

(4) substantial evidence supports the appeal board’s conclusion that the

general industry permit-required confined spaces standards were

applicable to this sewer project; (5) the appeal board properly determined

that the City was a “host employer” under 29 C.F.R. section
 3

1910.146(c)(8)(i), (iii); and (6) substantial evidence supports the appeal

board’s decision that the City committed two serious violations.

In view of these conclusions, we vacate the decision of the court of

appeals, reverse the district court’s decision, and remand the case to the

district court for an entry of judgment upholding the employment appeal

board’s decision.

I. Background Facts and Proceedings.

Upon receiving a notice from the Iowa department of natural

resources (DNR) of the presence of raw sewage in Dean’s Lake, the City

contracted with Insituform Technologies USA, Inc. to reline a portion of

its sewer. Before receiving this notice, the City did not have any plans to

work on the sewer. In July 2002, fumes from unidentified sewer gases

overcame Insituform workers inside the City-owned sewer line. Two

workers collapsed inside the sewer and drowned in pooling water. Five

other workers were seriously injured in the incident.
The City’s plan for the sewer project called for a sanitary sewer

renovation using a cured-in-place pipe liner, sewer cleaning,

reconnecting sewer services, by-pass pumping, and other related items.

The plan required Insituform to insert a liner within an existing sewer

pipe, expand the liner within the pipe, and cure it in place with heat.

Insituform was also required to install fillets to reduce the sharp angles

in the sewer and increase the liner’s strength.

Prior to the start of this project, the City developed procedures

relating to sewer entry consistent with the IOSH general industry

standards for permit-required confined spaces. Insituform had a similar

confined spaces entry plan for its employees.
 4

A pre-construction meeting was held between City officials and

Insituform representatives before work began in the sewer. At that

meeting, the City did not discuss its permit-required confined spaces

procedures with Insituform. From the start date of the actual work in

the sewer to the date of the fatal accident, the City had an inspector at

the work site virtually every day.

After the accident, the Iowa division of labor services occupational

safety and health bureau investigated the circumstances surrounding

the accident. After completing its investigation, the bureau cited the City

for two serious violations. The first violation was based on 29 C.F.R.

section 1910.146(c)(8)(i), as incorporated in Iowa’s administrative rules,

for the City’s failure to inform Insituform that the sewer contained permit

spaces and that permit space entry is allowed only through compliance

with a permit space program. See Iowa Admin. Code r. 875—10.20(88).

The City was also cited for a violation of the provisions in 29 C.F.R.

section 1910.146(c)(8)(iii), as incorporated in Iowa’s administrative rules,

for its alleged failure to apprise Insituform of what precautions and

procedures the City implemented to protect employees in or near permit

spaces where Insituform personnel would be working. See id. The

citation proposed a penalty of $4500 for each violation, or $9000 in total.

The City contested the citation. The commissioner filed a

complaint with the employment appeal board. An administrative law

judge presided over the hearing on the complaint. In addition to offering

testimony and exhibits at the hearing, the parties stipulated that the City

did not perform the actions required in 29 C.F.R. section

1910.146(c)(8)(i), (iii).
 5

The administrative law judge entered a decision and proposed

order affirming the violations concluding (1) the commissioner’s reliance

on federal interpretations of its OSHA standards in deciding what

violations may have occurred did not amount to rulemaking in violation

of Iowa Code section 17A.3; (2) the safety and health regulations for

general industry promulgated under 29 C.F.R. part 1910 apply to the

work in the sewer, rather than the safety and health regulations for

construction employment promulgated under 29 C.F.R. part 1926; and

(3) the City was a “host employer” under 29 C.F.R. section

1910.146(c)(8). The judge disagreed with the determination that the

violations were serious violations, amended the violations to other than

serious violations, and reduced the penalty to a total of $2500.
The City appealed the decision to the employment appeal board.

The appeal board issued a decision and final order agreeing with the

administrative law judge’s decision as to the violations, but found the

violations to be serious violations and reinstated the $9000 penalty.

The City petitioned the district court for judicial review. The

district court reversed the appeal board’s decision and voided the

penalty. The court concluded the commissioner’s reliance on the federal

OSHA documents constituted an abuse of discretion and unlawful

rulemaking, the work performed by Insituform was not governed by the

general industry safety and health regulations promulgated under 29

C.F.R. part 1910, and the City was not a “host employer” under 29

C.F.R. section 1910.146(c)(8).

The appeal board and the commissioner appealed. We transferred

the case to our court of appeals. Our court of appeals affirmed the

district court’s ruling concluding the commissioner’s reliance on the
 6

federal OSHA documents constituted an abuse of discretion and

unlawful rulemaking in violation of Iowa Code section 17A.3, as such

reliance was undisclosed and authoritative. Our court of appeals also

found substantial evidence did not support the appeal board’s decision

approving the citation under the general industry standards. The court

of appeals did not reach any other issues raised on appeal by the parties.

The appeal board and commissioner filed an application for further

review, which we granted.
II. Issues.

To resolve this appeal we must decide whether: (1) the appeal

board erred when it held the commissioner did not violate Iowa Code

section 17A.3 when he used federal interpretations of the OSHA

standards as a guide in interpreting those standards; (2) the City’s due

process rights were violated when the appeal board relied on the federal

interpretations of the OSHA standards; (3) the appeal board erred in

interpreting the general industry permit-required confined spaces

standards (29 C.F.R. section 1910.146); (4) substantial evidence

supports the appeal board’s conclusion that the general industry permit-

required confined spaces standards applied to the work in the sewer; (5)

the board properly determined that the City was a “host employer” under

29 C.F.R. section 1910.146(c)(8)(i), (iii); and (6) substantial evidence

supports the appeal board’s decision to find the City committed two

serious violations.

III. Scope of Review.

When reviewing the decision of the district court on judicial review,

“we must apply the standards set forth in [the Iowa Administrative

Procedure Act] and determine whether our application of those standards
 7

produces the same results as reached by the district court.” ABC

Disposal Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 601 (Iowa

2004); see also Iowa Code § 88.9(1) (providing judicial review of

occupational safety and health citations is in accordance with the Iowa

Administrative Procedure Act). The Iowa Administrative Procedure Act

allows the district court to reverse or modify an agency’s decision only if

it is incorrect under a ground specified in the Act, and a party’s

substantial rights have been prejudiced. Iowa Code § 17A.19(10).

Neither party claims if we find one of the enumerated provisions in

section 17A.19(10) exist, that the actions of the commissioner do not

affect the substantial rights of the City. Because of the different nature

of each issue raised on appeal, we will discuss the applicable standards

of review as we discuss each issue.
IV. Iowa Code Section 17A.3.

The Iowa legislature authorized the commissioner to adopt and

promulgate occupational safety and health standards that the United

States secretary of labor adopted and promulgated as permanent

standards by and in accordance with federal law. Iowa Code § 88.5(1)(a).

Pursuant to this authorization, the commissioner adopted parts of the

federal OSHA standards governing general industry safety and health.

Iowa Admin. Code r. 875—10.20(88). The commissioner also adopted

parts of the federal OSHA standards governing construction employment.

Iowa Admin. Code r. 875—10.12(88)(2). Although the sewer is a confined

space as defined by the general industry safety and health standards, the

permit-required confined spaces standards do not apply to construction

employment. 29 C.F.R. § 1910.146(a) (adopted by Iowa Admin. Code r.

875—10.20(88)). Construction employment is governed by 29 C.F.R.
 8

part 1926. IOSH regulations define construction employment as “work

for construction, alteration, or repair.” Iowa Admin. Code r. 875—

10.12(88)(2).

The appeal board adopted the commissioner’s interpretation. It

found the work in the sewer was governed by the permit-required

confined spaces standards contained in the general industry safety and

health standards, rather than construction employment standards. In

support of its decision, the appeal board relied on the testimony of Mary

Bryant, IOSH administrator. In her testimony, Bryant looked to OSHA

instruction CPL 2.100 and an OSHA standard interpretation to

determine whether the general industry or the construction employment

standards applied to the work in the sewer. The United States

department of labor authored the instruction and the standard

interpretation. CPL 2.100 discusses when the general industry safety

and health standards apply to a project. The instruction states in

relevant part:

Generally speaking, refurbishing of existing equipment and
space is maintenance; reconfiguration of space or
installation of substantially new equipment (as for a process
change) is usually construction. Those spaces identified
under 1910.146(c) as permit spaces that are undergoing
maintenance or modifications, which do not involve
construction, would be subject to the General Industry
standards.

A confined space created during or as a result of
construction activity or entered to perform construction
activity would usually fall within the scope of the 29 CFR
1926 standards and the general duty clause until the space
is turned over for General Industry operations.

...

The relining of a sewer line using a sleeve which is pushed
through a section of the existing system is maintenance.
 9

U.S. Dep’t of Labor, Occupational Safety & Health Admin., CPL 2.100 –

Application of the Permit-Required Confined Spaces (PRCS) Standards, 29

C.F.R. 1910.146 (May 5, 1995).

The standard interpretation expanded on the difference between

construction and maintenance operations. It provides:

29 CFR 1910.12(b) defines construction work as “work for
construction, alteration, and/or repair, including painting
and decorating.” Generally speaking reconfiguration of
space or installation of substantially new equipment is
usually considered construction, whereas refurbishing of
existing equipment and space is considered maintenance.

Maintenance operations are covered by general industry
standards contained in 29 CFR 1910 and construction
activities are covered by the construction standards
contained in 29 CFR 1926. While paragraph (a), scope and
application, of 29 CFR 1910.146 does not apply to
construction activities, it does not exclude contractors from
coverage when performing maintenance type operations in
confined spaces.

Thus, if you are a contractor performing maintenance type
activities for a host employer, compliance with 29 CFR
1910.146 is required. Some examples of maintenance
operations would be:

...

Relining of a sewer line using a sleeve which is pushed
through a section of the existing system.

U.S. Dep’t of Labor, Occupational Safety & Health Admin., Standard

Interpretations-Confined Spaces: Use of Rescue-Type SCBAs; Maintenance

v. Construction (Apr. 12, 1996).

The City claims the commissioner’s reliance on the OSHA

instruction and the standard interpretation is unlawful rulemaking

under the Iowa Code. The City also claims that the commissioner cannot

use the OSHA instruction and the standard interpretation because the
 10

commissioner did not index them as required by the Code. The Code

provides:

In addition to other requirements imposed by Constitution or
statute, each agency shall:

...

b. Adopt rules of practice setting forth the nature and
requirements of all formal and informal procedures available
to the public, including a description of all forms and
instructions that are to be used by the public in dealing with
the agency.

...

d. Make available for public inspection all rules, and make
available for public inspection and index by subject, all other
written statements of law or policy, or interpretations
formulated, adopted, or used by the agency in the discharge
of its functions.

2. No agency rule or other written statement of law or policy,
or interpretation, order, decision, or opinion is valid or
effective against any person or party, nor shall it be invoked
by the agency for any purpose, until it has been made
available for public inspection and indexed as required by
subsection 1, paragraphs “d” and “e”. This provision is not
applicable in favor of any person or party who has actual
timely knowledge thereof and the burden of proving such
knowledge shall be on the agency.

Iowa Code §§ 17A.3(1)(b), (d), 17A.3(2).
To decide this issue, we must interpret section 17A.3. The

interpretation of a statute is always a matter of law to be determined by

the court. City of Marion v. Iowa Dep’t of Revenue & Fin., 643 N.W.2d

205, 206 (Iowa 2002). However, under certain circumstances we are

required to give some deference to the agency’s interpretation. Id.

Chapter 17A prescribes the amount of deference we should give to the

view of an agency. Iowa Code § 17A.19(11). Because the legislature did

not vest the interpretation of section 17A.3 with the agency, we do not
 11

give any deference to the view of the agency and employ a correction-of-

errors-at-law standard of review. Id. § 17A.19(10)(b); Thoms v. Iowa Pub.

Employees’ Ret. Sys., 715 N.W.2d 7, 11 n.3 (Iowa 2006); Auen v. Alcoholic

Beverages Div., Iowa Dep’t of Commerce, 679 N.W.2d 586, 590-91 (Iowa

2004).

A purpose of Iowa Code section 17A.3 is to prevent secret agency

rulemaking when the agency uses undisclosed but authoritative

interpretations of law or policy. Doe v. Iowa State Bd. of Physical

Therapy & Occupational Therapy Exam’rs, 320 N.W.2d 557, 561 (Iowa

1982). However, these provisions are not relevant unless the agency

applies the undisclosed authoritative interpretations as a matter of law,

rather than merely applying the interpretations as relevant to the factual

situation. See Ford v. Iowa Dep’t of Human Servs., 500 N.W.2d 26, 29

(Iowa 1993).
Applying these considerations, we agree with the appeal board’s

decision that the commissioner’s use of the OSHA instruction and the

standard interpretation did not amount to unlawful rulemaking. The

commissioner alleged in his complaint that the City violated the

standards contained in 29 C.F.R. section 1910.146(c)(8)(i), (iii), not that it

violated the OSHA instruction or the standard interpretation. The

commissioner adopted the standards of 29 C.F.R. section

1910.146(c)(8)(i), (iii) using the required rulemaking procedures. These

standards were properly indexed in the administrative code. See Iowa

Admin. Code r. 875—10.20(88). Therefore, we also agree with the appeal

board’s decision that the commissioner’s actions did not amount to the

unlawful use of unindexed authorities.
 12

The commissioner used the OSHA instruction and the standard

interpretation as an aid in interpreting whether the City’s inaction was

governed by the general industry safety and health standards contained

in 29 C.F.R. part 1910. Accordingly, the administrator did not use the

OSHA instruction and standard interpretation to establish a rule of law

in this proceeding. In making the determination whether the general

industry safety and health standards, as contained in 29 C.F.R. part

1910, governed the City’s inaction, the commissioner only applied the

OSHA instruction and standard interpretation as relevant to this factual

situation. Cf. Anderson v. Iowa Dep’t of Human Servs., 368 N.W.2d 104,

107-08 (Iowa 1985) (holding an agency could not use a policy found in a

department’s employee manual as the rule of law to determine a

contested issue because the agency never adopted a rule containing such

a policy).
V. Due Process.

The City claims the commissioner’s and appeal board’s reliance on

the OSHA instruction and the standard interpretation violated the due

process guarantees of article I, section 9 of the Iowa constitution and the

Fourteenth Amendment to the United States Constitution. Although the

City raised the constitutional issue before the appeal board, the district

court did not reach this issue, instead finding the other issues raised by

the City were dispositive of the case. Under these circumstances we can

review the City’s due process claims on appeal. See Anderson, 368

N.W.2d at 107 (stating “[i]f the district court found one issue dispositive

and did not address the other issues, we can scrutinize all issues in

reviewing the rulings”). Our review of a constitutional issue raised by a
 13

party in an agency proceeding is de novo. ABC Disposal Sys., Inc., 681

N.W.2d at 605.

The notion of due process requires that “no person shall be

deprived of life, liberty, or property, without due process of law.” Iowa

Const. art. I, § 9; U.S. Const. amends. V, XIV, § 1. We have stated that

the state and federal due process clauses are interpreted the same,

“including [when] . . . differentiating between ‘procedural’ and

‘substantive’ due process.” Master Builders of Iowa, Inc. v. Polk County,

653 N.W.2d 382, 397 (Iowa 2002). The City does not specify whether

procedural or substantive due process applies, but claims because it did

not have fair notice of what conduct is classified as prohibited a due

process violation occurred.
We have held:

Under the Due Process Clause, a civil statute is
unconstitutionally vague “when its language does not convey
a sufficiently definite warning of the proscribed conduct.”
The legal test for determining vagueness is: “[i]f the statute’s
meaning is fairly ascertainable by reliance on generally
accepted and common meaning of words used, or by
reference to the dictionary, related or similar statutes, the
common law, or previous judicial constructions, due process
is satisfied.” There is a presumption of constitutionality and
a litigant can only rebut this presumption by “negating every
reasonable basis on which the statute can be sustained.”
“Literal exactitude or precision is not required.” “A statute is
not unconstitutionally vague merely because a key word has
not been specifically defined.” To avoid a rule from unduly
restricting the regulation of certain matters, a certain degree
of indefiniteness is necessary.

ABC Disposal Sys., Inc., 681 N.W.2d at 605 (citations omitted).

As we previously determined, the rules of law applicable to this

agency proceeding are contained in 29 C.F.R. parts 1910 and 1926, as

incorporated in Iowa’s administrative rules. The commissioner used the
 14

OSHA instruction and standard interpretation as relevant authority to

interpret and apply the standards to the facts of this case. The

commissioner’s reliance on these and like authorities is no different than

if he relied on case law, similar statutes, or previous agencies’

construction of 29 C.F.R. parts 1910 and 1926.

The OSHA instruction and standard interpretation are public

documents readily available on OSHA’s website. U.S. Dep’t of Labor,

Occupational Safety & Health Admin., http://www.osha.gov (last visited

Sept. 28, 2006). Additionally, OSHA instruction CPL 2.100 has been

cited in federal occupational safety health review commission decisions.

See, e.g., Sec’y of Labor v. Drexel Chem. Co., 18 O.S.H. Cas. (BNA) ¶

31,260, at 43,873 (Mar. 3, 1997). The use of the OSHA instruction and

standard interpretation does not violate due process guarantees because

the City had fair notice of what conduct is classified as prohibited.

Therefore, neither the commissioner’s nor the appeal board’s use of the

OSHA instruction and standard interpretation violated the City’s due

process guarantees under article I, section 9 of the Iowa constitution or

the Fourteenth Amendment to the United States Constitution.

VI. Interpretation of the General Industry Standards.

The appeal board interpreted the IOSH standards and concluded

that the general industry permit-required confined spaces standards

were applicable to this sewer project, rather than the construction

employment standards. The City contends the board erred in applying

the general industry permit-required confined spaces standards. We

disagree.
 15

The legislature gave the labor commissioner the authority to

promulgate Iowa’s occupational safety and health standards. Iowa Code

§ 88.5(1)(a). The legislature also made all determinations regarding the

issuance of a standard by the commissioner conclusive if substantial

evidence supports the standard. Id. § 88.5(10). This legislative authority

vests the interpretation of standards with the Iowa department of labor.

Thomes, 715 N.W.2d at 11-12 (Iowa 2006). Accordingly, we will give

appropriate deference to the agency’s interpretation of the standards and

reverse the agency’s action if it is based on an interpretation of law that

is “irrational, illogical, or wholly unjustified.” Iowa Code

§§ 17A.19(10)(l), 17A.19(11)(c).
To aid it in its interpretation of 29 C.F.R. parts 1910 and 1926, the

commissioner relied on OSHA instruction CPL 2.100 and a standard

interpretation. We find nothing wrong with the agency’s reliance on

these documents. The federal occupational safety health review

commission has found it proper for OSHA to rely on similar documents

to support its interpretation of a safety standard. See Drexel, 18 O.S.H.

Cas. (BNA) at 43,875 n.3 (citing numerous decisions where the federal

agency relied on CPLs to support interpretations of standards).

Additionally, the City introduced its own standard interpretation in

support of its case. U.S. Dep’t of Labor, Occupational Safety & Health

Admin., Standard Interpretations – Construction v. Maintenance (Aug. 11,

1994). This interpretation is consistent with the OSHA instruction and

the standard interpretation relied on by the commissioner. It provides in

relevant part that:

There is no specified definition for “maintenance,” nor a clear
distinction between terms such as “maintenance,” “repair,”
 16

or “refurbishment.” “Maintenance activities” can be defined
as making or keeping a structure, fixture or foundation
(substrates) in proper condition in a routine, scheduled, or
anticipated fashion. This definition implies “Keeping
equipment working in its existing state, i.e., preventing its
failure or decline.” However, this definition, (taken from the
directive on confined spaces) is not dispositive; and,
consequently, determinations of whether a contractor is
engaged in maintenance operations rather than construction
activities must be made on a case-by-case basis, taking into
account all information available at a particular site.

...

In other instances, where an activity cannot be easily
classified as construction or maintenance even when
measured against all of the above factors, the activity should
be classified so as to allow application of the more protective
1910 or 1926 standard, depending on the hazard. In such
cases, the citation should be issued in the alternative with
the emphasis on the more protective standard.

Id.

In other words, because there is no bright line rule to determine

whether an activity is maintenance or repair, we must look at the facts of

each case to determine whether the task being performed was repair or

maintenance. If the question is close as to whether the work constitutes

repair or maintenance, the agency should apply the standards that

provide more protection to the employees, depending on the hazard.

Therefore, we cannot say the board’s interpretation of the IOSH

standards was “irrational, illogical, or wholly unjustified” when it

interpreted the standards and applied the more protective general

industry permit-required confined spaces standards contained in 29

C.F.R. part 1910.

VII. Substantial Evidence Analysis.

Having determined the agency’s interpretation of 29 C.F.R. parts

1910 and 1926 is not “irrational, illogical, or wholly unjustified,” we must
 17

now determine if substantial evidence supports the board’s decision that

the general industry permit-required confined spaces standards apply to

this case. Iowa Code §§ 17A.19(10)(f), 88.8(3). “The [agency’s] factual

findings are binding on this court if supported by substantial evidence.”

United Fire & Cas. Co. v. St. Paul Fire & Marine Ins. Co., 677 N.W.2d 755,

759 (Iowa 2004). Our inquiry is whether the evidence supports the

findings made by the agency, not whether the evidence may support a

different finding. Munson v. Iowa Dep’t of Transp., 513 N.W.2d 722,

723 (Iowa 1994) (citing Reed v. Iowa Dep’t of Transp., 478 N.W.2d 844,

846 (Iowa 1991)).
The record supports a finding that during the investigation of an

oil/water mixture in Dean’s Lake, the DNR discovered the City

discharged raw sewage into the lake. A City maintenance worker

informed the DNR the discharge occurred when a contractor removed

sludge during an upgrade of a sewer box containing sewer lines for both

storm water and sewage. The DNR’s investigation concluded the leakage

did not occur due to mechanical failure or acts beyond the
control of the owner, [rather] it occurred due to the failure [of
the City] to have a contingency plan in place in case the lines
failed during the upgrade of the sewer box.

To remedy the problem, the DNR required the City to “[s]ubmit a written

plan for sewer box repairs [and] upgrades that will eliminate the potential

for future prohibited bypasses and discharges.”

In response to this requirement, the City developed a plan to reline

the East Twentieth Street sanitary sewer. The relining plan shows that

the existing sanitary and storm sewers are contained in one rectangular

sewer box. A six-inch-thick concrete common wall separates the two

sewers. The sanitary sewer routes raw sewage to the City’s wastewater
 18

treatment plant, while the storm sewer routes rainwater and other run-

off to natural waterways.

Although the DNR alerted the City to the discharge problem, this

fact alone does not determine whether work on the sewer can be

classified as repair or maintenance. The relining plan did not involve a

repair to a specific area of the sewer where leakage may have occurred.

Instead, the plan shows the City chose to reline all 6800 lineal feet of the

sanitary sewer with a cured-in-place pipe liner. The plan also required

the existing walls of the sanitary sewer to provide the structural support

for the lining. The liner could not function without the existing sewer

walls because it relied upon the existing structure of the sewer for its

support and integrity. Other than enlarging two manhole covers, the

contractor made no other structural changes to the sanitary sewer.

During the relining of the sewer, the contractor was required to maintain

the flow of waste through the system.
In order to place the liner in the existing sewer, Insituform’s

employees were required to enter the sewer. For the hazards the workers

encountered in the sewer, the permit-required confined spaces standards

provide more protection than the construction employment standards.

Examining the sewer project in this light, we conclude the record

supports the finding that the City was maintaining the existing sewer

line because the work done in the sewer was not to fix a specific defect in

the sewer, but rather to refurbish it by keeping it in good working order.

Accordingly, substantial evidence supports the commissioner’s

interpretation and the appeal board’s finding that the general industry

permit-required confined spaces standards apply to this case rather than

the construction employment standards.
 19

VIII. Host Employer Violations.

The commissioner’s complaint alleges the City violated 29 C.F.R.

section 1910.146(c)(8)(i), (iii), as incorporated in Iowa’s administrative

rules. These standards provide:

When an employer (host employer) arranges to have
employees of another employer (contractor) perform work
that involves permit space entry, the host employer shall:

(i) Inform the contractor that the workplace contains permit
spaces and that permit space entry is allowed only through
compliance with a permit space program meeting the
requirements of this section;

...

(iii) Apprise the contractor of any precautions or procedures
that the host employer has implemented for the protection of
employees in or near permit spaces where contractor
personnel will be working[.]

29 C.F.R. § 1910.146(c)(8)(i), (iii). Although the City stipulated that it did

not comply with the duties created by these standards, the City claims it

is not required to comply with any duties under these standards because

it is not a “host employer.” We disagree.

By giving the commissioner both the authority to promulgate

Iowa’s occupational safety and health standards and the ability to make

conclusive all determinations regarding the issuance of a standard, if

supported by substantial evidence, the legislature vested the

interpretation of standards with the commissioner. Iowa Code

§§ 88.5(1)(a), 88.5(10). As we did in division VI of this opinion, we will

give appropriate deference to the agency’s interpretation of the standards

and will only reverse the agency’s action based on an interpretation of

law that is “irrational, illogical, or wholly unjustified.” Id.

§§ 17A.19(10)(l), 17A.19(11)(c).
 20

The same rules of interpretation that apply to statutes apply to

regulations of an administrative agency. City of Iowa City v. State Bldg.

Code Bd. of Rev., 663 N.W.2d 868, 871 (Iowa 2003). The purpose of

statutory construction is to determine legislative intent. State v. McCoy,

618 N.W.2d 324, 325 (Iowa 2000). The words chosen by the legislature,

not what it should or might have said determine legislative intent.

Painters & Allied Trades Local Union v. City of Des Moines, 451 N.W.2d

825, 826 (Iowa 1990). Words are given their ordinary and common
meaning by considering the context within which they are used absent a

statutory definition or an established meaning in the law. Midwest Auto.

III, L.L.C. v. Iowa Dep't of Transp., 646 N.W.2d 417, 426 (Iowa 2002). In

addition, we may consider the legislative history of a statute when

ascertaining legislative intent. State v. Allen, 708 N.W.2d 361, 366 (Iowa

2006).

Despite a list of definitions set forth in 29 C.F.R. section

1910.146(b), there is no definition for “host employer.” See generally 29

C.F.R. § 1910.146(b). The common meaning of “host” is a person or

entity that invites guests onto its premises. See Webster’s Third

International Dictionary 1094 (unabr. ed. 2002) (defining host as “one

who receives or entertains guests or strangers socially or commercially”).

It is clear from the context of the standards, “host employer” means an

employer that has another employer’s employees perform work on the

first employer’s premises. Not only does the common understanding of

the word “host” require this interpretation, the legislative history of the

standard confirms this interpretation.

Legislative history contained in the Federal Register confirms that

a host employer is an employer that has another employer’s employees
 21

perform work on the first employer’s premises. Permit Required

Confined Spaces, 59 Fed. Reg. 24,080, 24,091 (June 5, 1989) (codified at

29 C.F.R. pt. 1910). The United States department of labor in a notice of

proposed rulemaking regarding 29 C.F.R. part 1910 indicated a host

employer is the individual who controlled the permit-required confined

spaces. See id. (stating “[p]roposed (c)(10) requires individuals who

control permit spaces (host employer) to provide contractors (or similar

employers) who plan to have employees enter these permit spaces with
all available information on permit space hazards; on efforts to comply

with the standard; and on any other hazards, safety rules or emergency

procedures” (emphasis added)). In a later notice of proposed rulemaking

regarding 29 C.F.R. part 1910 the department disclosed it received a

comment from its advisory committee on construction safety and health

requesting that the work site owner or the host employer be responsible

for compliance with the proposed rule. Occupational Exposure to

Methylene Chloride, 57 Fed. Reg. 36,964, 36,967 (Aug. 17, 1992)

(codified at 29 C.F.R. pts. 1910, 1915, 1926) (stating “the Committee

suggested that the Agency consider designating the work site owner, or

‘host’ employer as being responsible for overall work site safety”

(emphasis added)).

Finally, when OSHA issued its final rules for 29 C.F.R. part 1910,

it explained the purpose of 29 C.F.R. section 1910.146(c)(8) is to “enable

. . . contractors to develop and implement permit space programs that

satisfy section 1910.146.” Permit-Required Confined Spaces, 59 Fed.

Reg. 4462, 4492 (Jan. 14, 1993). In referring to the obligations of the

host employer, one commenter referred to the host employer as host

company. Id. (stating “[i]n many circumstances, it is absolutely vital to
 22

the safety of all workers that confined space entries in existing process

facilities remain under the close control of the host company, using one

common and consistent set of procedures established for the facility,

conforming to the OSHA rule” (emphasis added)). Another rulemaking

participant equated the host employer to the owner/operator. Id. at

4493 (stating “OSHA should recognize that the owner/operator may not

have expertise in confined space entry and may only be able to provide

the contractor with a list of chemicals, their MSDSs and physical
information on the confined space. The owner/operator may be hiring an

experienced contractor to perform the work precisely because he

recognizes that he does not have the expertise to perform the task safely.

In such a situation, the owner could not be expected to advise the

contractor.” (Emphasis added.))

The record establishes the City was the owner of the sewer lines

where Insituform’s employees performed the work. Based on the clear

meaning of the words used in the standards and the legislative history

we cannot say the commissioner’s interpretation and appeal board’s

determination that the City is a “host employer” under 29 C.F.R. section

1910.146(c)(8) is “irrational, illogical, or wholly unjustified.”

IX. Penalties.

The commissioner alleged the violations by the City of 29 C.F.R.

section 1910.146(c)(8)(i), (iii) constituted serious violations under Iowa

Code section 88.14(2). The appeal board agreed with the commissioner’s

determination. The City claims substantial evidence does not support

these findings. Our review of the record reveals substantial evidence

supports the appeal board’s findings that these two violations are serious

violations.
 23

[A] serious violation shall be deemed to exist in a place of
employment if there is substantial probability that death or
serious physical harm could result from a condition which
exists, or from one or more practices, means, methods,
operations, or processes which have been adopted or are in
use, in such place of employment unless the employer did
not, and could not with the exercise of reasonable diligence,
know of the presence of the violation.
Iowa Code § 88.14(11). The purpose of the host employer standards is

twofold. First, the standards provide each contractor who works in a

permit-required space owned by another the local knowledge gained by

the owner, thereby furthering compliance with the general industry

standards. Second, the standards inform each contractor of any

hazards, safety rules, or emergency procedures that the owner identified

regarding the owner’s permit-required confined spaces. Permit Required

Confined Spaces, 54 Fed. Reg. at 24,091.

The City recognized that working in the sewers created a

substantial probability of death or serious physical harm and developed

its own sewer confined space entry procedures as required by the general

industry permit-required confined spaces standards. The City

distributed these standards to all City employees who entered its sewers.

Virtually every day, the City had an inspector at the work site. The

City should have known through the exercise of reasonable diligence that

it was a “host employer” under the permit-required confined spaces

standards, and therefore required to provide certain information to

Insituform before Insituform employees entered the sewer. The City also

should have known that the employees of Insituform entered the sewer

and when in the sewer, the workers were exposed to a substantial

probability of death or serious physical harm.
 24

Accordingly, there is substantial evidence supporting the appeal

board’s determination that the City’s violations were serious violations.

X. Conclusion and Disposition.

In conclusion, we find (1) the commissioner did not violate Iowa

Code section 17A.3 when he used federal interpretations of the OSHA

standards as a guide in interpreting those standards; (2) the City’s due

process rights were not violated when the commissioner and the appeal

board relied on the federal interpretations of the OSHA standards; (3) the

appeal board was correct in its interpretation of the general industry

permit-required confined spaces standards (29 C.F.R. section 1910.146);

(4) substantial evidence supports the appeal board’s conclusion that the

general industry permit-required confined spaces standards were

applicable to this sewer project; (5) the appeal board properly determined

that the City was a “host employer” under 29 C.F.R. section

1910.146(c)(8)(i), (iii); and (6) substantial evidence supports the appeal

board’s decision that the City committed two serious violations.
Accordingly, the district court should have affirmed the

employment appeal board’s decision. Therefore, we vacate the decision

of the court of appeals, reverse the district court’s decision, and remand

the case to the district court for an entry of judgment upholding the

appeal board’s decision.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED WITH

DIRECTIONS.