Filed 8/13/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CALIFORNIA DEPARTMENT OF
INDUSTRIAL RELATIONS, DIVISION OF
OCCUPATIONAL SAFETY AND HEALTH,
Plaintiff and Respondent,
A142799
v.
CALIFORNIA OCCUPATIONAL SAFETY (County of Alameda
AND HEALTH APPEALS BOARD, No. RG13687314)
Defendant and Appellant,
AC TRANSIT (ALAMEDA-CONTRA
COSTA TRANSIT DISTRICT),
Real Party in Interest and Appellant.
In this appeal, we consider a narrow question of regulatory interpretation: Can the
interior of a non-air-conditioned bus be deemed an “outdoor place of employment” for
purposes of the heat illness prevention standards promulgated by the California
Occupational Safety and Health Standards Board (Standards Board) as stated in section
3395 of title 8 of the California Code of Regulations (section 3395)? After the
Department of Industrial Relation’s Division of Occupational Safety and Health
(Division) cited the Alameda-Contra Costa Transit District (AC Transit) for several
violations of section 3395 involving its non-air-conditioned buses, AC Transit sought
administrative review, arguing, among other things, that the buses were not “outdoor”
places of employment for purposes of the heat illness prevention regulation. The
Occupational Safety and Health Appeals Board (Appeals Board) ultimately agreed,
1
affirming the dismissal of the appealed-from violations by one of its administrative law
judges (ALJ). However, after the Division filed a petition for writ of mandate in the trial
court disputing this decision, the trial court determined that the Appeals Board’s
definition of “outdoor” was too narrow and issued a peremptory writ of mandate
instructing the Appeals Board to reconsider the matter using a broader definition of
outdoor that could include non-air-conditioned vehicles. Both AC Transit and the
Appeals Board appealed. We conclude—based upon our independent analysis of the
question—that the trial court’s construction of section 3395 is well supported both by the
language of the regulation and by its related regulatory history. We therefore remand the
matter for further proceedings consistent with our analysis.
I. BACKGROUND
The three state agencies relevant to these proceedings are all branches of
California’s Department of Industrial Relations that are involved in the regulation of
workplace health and safety. The Standards Board promulgates regulations setting
occupational health and safety standards. (Lab. Code, § 140 et seq.) The Division
enforces those standards, inspecting workplaces and issuing citations for health and
safety violations. (Id., § 142; see also id., § 6300 et seq.) Finally, it is the responsibility
of the Appeals Board to adjudicate appeals of Division citations. (Id., § 148 et seq.) As
the trial court pointed out below, this case presents “the interesting situation” where the
Division and the Appeals Board advocate different interpretations of regulations issued
by the Standards Board. 1
Section 3395—the regulation here at issue—sets forth requirements for heat
illness prevention in outdoor places of employment and was initially adopted by the
Standards Board in 2005 as an emergency regulation after an unusual number of reports
of serious occupational heat-related illnesses and deaths that year. Thereafter, the
Standards Board initiated a rulemaking action to promulgate a permanent version of
section 3395, issuing an Initial Statement of Reasons (See Standards Board, Initial
1
The Standards Board is not a party to these proceedings.
2
Statement of Reasons, New Section 3395: Heat Illness Prevention (ISOR).) In 2006, the
Standards Board issued its Final Statement of Reasons, responding to oral and written
comments. (See Standards Board Final Statement of Reasons, New Section 3395: Heat
Illness Prevention (FSOR).) It then adopted the permanent version of section 3395
applicable broadly to “all outdoor places of employment.” (former Cal. Code Regs., tit.
8, § 3395, subd. (a), Register 2006, No. 30 (July 27, 2006).) 2 Generally speaking, section
3395 sets standards for the provision of water, shade, and training for employees working
in outdoor environments. (Ibid.)
AC Transit operates transit buses throughout Alameda County and adjoining
areas. Bus routes range from 15 minutes to over an hour, with a small recovery time
scheduled at the end of each route, which may or may not be available to the driver
depending on whether he or she is running on schedule. Drivers can be behind the wheel
driving for up to ten hours a shift. During relevant timeframes, AC Transit employed
between 1200 and 1900 drivers and operated 695 buses, only 20 percent of which were
air-conditioned. In November 2007, the Division cited AC Transit for three alleged
violations of section 3395 with respect to the operation of its non-air-conditioned buses:
(1) failure to supply adequate drinking water to drivers; (2) failure to make shade
continuously available for drivers; and (3) failure to develop heat illness procedures and
related training for employees and supervisors. (See § 3395, subds. (c), (d), & (e).)
AC Transit appealed, and an administrative hearing before an ALJ was
subsequently held over the course of several days. During the hearing, several bus
drivers testified that it was normally hotter inside the buses than outside during the
2
The 2006 version of section 3395 is the operative version of the regulation for
purposes of this appeal, and all unidentified references to section 3395 shall be to the
2006 version. Section 3395 was subsequently amended twice, in 2010 (2010 version)
and 2015 (current version). (See history following Cal. Code Regs., tit. 8, § 3395.) We
discuss the relevance of later iterations of the regulation below. Like the 2006 version of
section 3395, however, both the 2010 version and the current version cover “all outdoor
places of employment,” and neither define the phrase. (See Cal. Code Regs., tit. 8,
§ 3395; former Cal. Code Regs., tit. 8, § 3395, subd. (a), Register 2010, No. 41 (Oct. 5,
2010).)
3
daytime, even when the exterior temperature was in the 70s. They further reported that
some of the non-air-conditioned buses had issues with ventilation and engine
compartments that radiated heat into the bus interior. One driver, who was also a union
representative, testified that he had heard concerns from AC Transit drivers “[t]hat the
conditions on very hot days were unhealthy and unsafe.” A Division employee explained
that the variable weather pattern in AC Transit’s service area created a risk of heat illness
due to lack of time for drivers’ bodies to acclimatize during short-term heat waves.
Further, in one heat wave—with outside temperatures between 93 and 97 degrees—this
employee had measured temperatures between 97 and 102 degrees immediately behind
the driver seats on four AC Transit buses. Another Division employee noted that sitting
next to large windows subjects bus drivers to direct solar radiation, adding to their
bodies’ heat burden. Finally, an occupational medicine physician and consultant to the
Division testified that the effects of even mild heat illness could impair a bus driver’s
ability to multi-task, leading to safety risks. AC Transit put on no evidence, conceding
that it had not complied with section 3395. It argued, instead, that it was not subject to
the regulation and that section 3395 was unenforceably vague.
After considering the evidence presented, the ALJ concluded that “the term
‘outdoor places of employment’ [in section 3395 was] a relatively new term, without a
proven ‘common usage’ and no ‘common law meaning.’ ” Moreover, after a review of
various dictionary definitions of “outdoor,” the ALJ further found that “there is more than
one common meaning” for that term. The ALJ thus reviewed the regulatory history of
section 3395 in an attempt to ascertain its underlying purpose and decided that the
“weight of the evidence” argued against defining “outdoor places of employment” to
include “the interiors of municipal transit buses.” He therefore dismissed the citations
and vacated the corresponding penalties and abatement requirements. In response, the
Division filed a petition for reconsideration with the Appeals Board on the “sole issue” of
whether “drivers of non-air-conditioned public transit buses are excluded from coverage”
under section 3395.
4
In its Decision After Reconsideration (DAR), the Appeals Board agreed with the
conclusion of the ALJ, albeit under different reasoning. After incorporating the ALJ’s
Summary of Evidence, the Appeals Board declared that the plain meaning of section
3395 confirmed that bus interiors are not outdoor places of employment for purposes of
the regulation. Rather, based on a review of dictionary definitions, the Appeals Board
opined that “the ordinary and commonsense meaning of the word ‘outdoor’ means
literally to be ‘out of doors,’ or in an open air environment.” In making this
determination, the Appeals Board expressly rejected the Division’s assertion that non-air-
conditioned buses could qualify as outdoor places of employment based on the regulatory
history of section 3395, stating: “We do not find any support in the rulemaking record or
the regulation’s text itself that would support that the meaning of the word ‘outdoor’
turned on the existence or non-existence of a cooling device.”
Refusing to accept this result, the Division filed a petition for writ of mandate in
Alameda County Superior Court, asserting that the Appeals Board’s conclusions in its
DAR amounted to a prejudicial abuse of discretion and were clearly erroneous. After
briefing and hearing, the trial court agreed, issuing an order granting the Division’s
petition (Order). In particular, the trial court concluded that the Appeals Board erred in
limiting the definition of “outdoor” for purposes of section 3395 to “ ‘out of doors’ or ‘in
an open air environment.’ ” Instead, the trial court agreed with the ALJ that there is no
single, common meaning for the term “outdoor,” and thus the plain text of the regulation
was not helpful in determining regulatory intent. The court therefore considered the
regulatory history related to the Standards Board’s adoption of section 3395 and
concluded that “the Standards Board intended the regulations to protect employees who
did not have ‘the environmental protections indoor working environments can provide.’ ”
The court further found, however, that the regulatory history contained conflicting
statements regarding the scope of the term “outdoor.” It thus went on to consider
whether deference should be granted to either of the contradictory interpretations of
“outdoor” advocated by the Division and the Appeals Board, and determined that the
Division’s interpretation was entitled to greater deference than the Appeals Board’s
5
construction. In the end, the court held that, for purposes of section 3395, “ ‘outdoors’ is
defined as ‘out of doors’ or ‘not in a building’ and that if an enclosure or structure does
not provide sufficient environmental protections to be considered ‘indoor’ then it is
‘outdoor.’ ” On this basis, the trial court granted judgment in the Division’s favor
(Judgment) and ordered issuance of a writ of mandate (Writ), directing the Appeal’s
Board to set aside its decision and reconsider the matter in accordance with this “proper”
definition of “outdoor.”
Timely notices of appeal were subsequently filed by both AC Transit and the
Appeals Board, bringing the matter before this court.
II. DISCUSSION
A. Rules of Interpretation and Standard of Review
“The interpretation of a regulation, like the interpretation of a statute, is, of course,
a question of law” and is therefore subject to our de novo review. (Carmona v. Division
of Industrial Safety (1975) 13 Cal.3d 303, 310 (Carmona).) Accordingly, while an
administrative agency’s interpretation of its own regulation is entitled to deference
appropriate to the circumstances, “the ultimate resolution of such legal questions rests
with the courts.” (Ibid.; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19
Cal.4th 1, 7-8, 11-13 (Yamaha) [An agency’s interpretation of a regulation is contextual
and is only one among several tools available to the court: “Depending on the context, it
may be helpful, enlightening, even convincing. It may sometimes be of little worth.”].)
When interpreting an administrative regulation, we follow the same rules of construction
that apply to statutes. (County of Sacramento v. State Water Resources Control Bd.
(2007) 153 Cal.App.4th 1579, 1586 (Sacramento County).) Thus, our fundamental
objective is to ascertain and effectuate the intent of the agency issuing the regulation.
(New Cingular Wireless PCS, LLC v. Public Utilities Com. (2016) 246 Cal.App.4th 784,
795 (New Cingular); see also De La Torre v. California Horse Racing Bd. (2017) 7
Cal.App.5th 1058, 1066 (De La Torre); Katz v. Los Gatos-Saratoga Joint Union High
School Dist. (2004) 117 Cal.App.4th 47, 54 (Katz).)
6
In determining the issuing agency’s intent, we look first to the language of the
regulation itself. (Katz, supra, 117 Cal.App.4th at p. 54; De La Torre, supra,
7 Cal.App.5th at p. 1066.) “ ‘If the language is clear and unambiguous there is no need
for construction, nor is it necessary to resort to indicia of the intent of the [agency]. . . .’
[Citation.] ‘But the “plain meaning” rule does not prohibit a court from determining
whether the literal meaning of a [regulation] comports with its purpose. . . .’ [Citation.]
Furthermore, ‘ “where 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 enlarged or restricted and especially in order to
avoid absurdity or to prevent injustice.” ’ ” (Katz, supra, 117 Cal.App.4th at p. 54; see
also New Cingular, supra, 246 Cal.App.4th at pp. 796-797 [choosing from “any number
of permissible interpretations” the one that was reasonable—keeping in mind the
“Legislature’s expressly stated intent.”) 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.” (De La Torre, supra, 7
Cal.App.5th at p. 1066; New Cingular, supra, 246 Cal.App.4th at p. 795.) Finally, when
an examination of regulatory language in its proper context fails to resolve an ambiguity,
courts may “turn to the [regulatory] history of an enactment as an aid to its
interpretation.” (Katz, supra, 117 Cal.App.4th at p. 55.)
With all of the foregoing principles in mind, we address the task at hand:
interpreting the term “outdoor” in the context of the Standard Board’s heat illness
prevention regulation, section 3395.
B. Application of Section 3395 to Non-Air-Conditioned Vehicles
If one thing is clear in this case, it is that the term “outdoor places of employment”
as used in section 3395 is not clear. Thus, contrary to the conclusion reached by the
Appeals Board in this matter, there is no dispositive “plain meaning” that can be relied
upon when determining its import. Rather, “outdoor” can be defined variously as:
something “[t]hat is done, exists, lives, or is used, out of doors, without the house, or in
the open air” (X Oxford English Dict. (2d ed. 1989) p. 1011); “existing, happening, or
7
done outside a building” (Cambridge Dict.
[as of Aug. 13, 2018]); “of or relating to the outdoors” or “not enclosed: having
no roof” (Merriam-Webster’s Collegiate Dict. (11th ed. 2014) p. 880 (Merriam-
Webster’s)); and “characteristic of, located, occurring, or belonging outdoors”
(Dictionary.com [as of Aug. 13, 2018]
(Dictionary.com)). Similarly, when used in its noun form—as in some definitions of
outdoor—“outdoors” is defined in a number of ways as well, including: “any area outside
buildings or shelter, typically [] far away from human habitation” (English Oxford Living
Dicts. [as of Aug. 13, 2018]); “a
place outside, away from buildings, where you can experience nature” (Cambridge Dict.
) [as of Aug. 13,
2018]; “a place or location away from the confines of a building” (Merriam Webster’s at
p. 880); or “the world outside of or away from houses; open air” (Dictionary. Com). It
thus appears that the term “outdoor” includes within its common meanings both the idea
of being “outside of a building” and the notion of being “in the open air.”
Because the plain language of the regulation is not dispositive, we turn next to the
relevant regulatory history. (See J.G. Boswell Co. (CALOSHA, Feb. 21, 1991) OSHAB
90-R2D5-284 [1991 WL 528460], Decision After Reconsideration [Final Statement of
Reasons approved by the Standards Board is “clear evidence of the intent of the
Standards Board”].) As stated above, after issuance of an emergency heat illness
prevention regulation, the Standards Board promulgated the permanent, 2006 version of
section 3395 at the culmination of an administrative rulemaking process which included
issuance of an ISOR and a FSOR. The ISOR states that section 3395 applies only to
outdoor places of employment in order to “limit the requirements of the proposed
standard to employers with employees having significant exposure to outdoor work, with
the intended effect of protecting employees performing such work from the increased risk
of heat illness that can result from working without the environmental protections indoor
working environments can provide.” (ISOR at p. 2, italics added.)
8
Despite a number of requests after issuance of the ISOR, the Standards Board
expressly declined to expand section 3395 to indoor places of employment. (FSOR at pp.
6-7, 50-51, 54.) Although the Standards Board recognized that “risk of heat illness is not
limited to outdoor work environments, and that in fact some of the most severe exposures
to heat can occur in artificially heated environments,” it believed that the “vast majority”
of serious cases had occurred “where the employee is working out of doors.” (FSOR at
p. 6.) The Standards Board indicated its intent to study indoor environments at a later
time. (Id. at p. 7.)
In addition, the Standards Board declined a request to include a definition of
“outdoor places of employment” in section 3395, stating that it did not believe it was
necessary. (FSOR at pp. 27-28.) In particular—in a statement highly relevant to the
instant case—the Standards Board rejected a definition of “outdoor” which would include
“nominally outdoor places of employment,” stating: “The [Standards] Board recognizes
that packing sheds and partial or temporary structures, such as tents, lean-tos, and
structures with one or more open sides, can be either indoor or outdoor workplaces
depending on the circumstances. In many case these structures may actually be hotter
than the environment outside of them because of heating by the sun and conditions inside
like limited air circulation and/or lack of insulation. The Board believes that it is clear
the standard is intended to protect employees from heat illness resulting from exposure to
outdoor environmental risk factors, and therefore temporary or partial structures that do
not significantly reduce the net effect of the environmental risk factors that exist
immediately outside should be considered outdoor workplaces.” (Ibid., italics added.)
We believe this statement is strong evidence that the Standards Board intended section
3395 to apply to workplaces outside of a building where the environmental protections
offered are insufficient to reduce existing environmental risk factors for heat illness, as
the trial court held.
There are, moreover, additional statements in the regulatory history that further
support this view. For instance, in response to a request that work vehicles used for
extended travel be required to have working air conditioning systems during periods of
9
extreme heat, the Standards Board opined: “The proposed standard would apply to non-
air-conditioned work vehicles used for extended travel during periods of extreme heat.
Employees traveling in these conditions are entitled to all of the protections provided by
the standard including access to shade. The standard specifically states, ‘Shade is not
adequate when heat in the area of shade defeats the purpose of shade, which is to allow
the body to cool. For example, a car sitting in the sun does not provide acceptable shade
to a person inside it, unless the car is running with air[-]conditioning.’ The [Standards]
Board is not aware of any scientific evidence that passengers riding in a work vehicle, in
compliance with motor vehicle and other applicable standards, are exposed to a greater
risk of heat illness than workers at other outdoor workplaces, which are not required to
be air-conditioned. The [Standards] Board believes the issues related to the necessity and
feasibility of a proposed requirement for air-conditioned vehicles were not adequately
vetted during this rulemaking. Therefore the [Standards] Board does not believe that
further modification to the proposal is necessary as a result of this comment.” (FSOR at
p. 30, italics added; see also ISOR at p. 3; § 3395, subd. (b).) 3 Thus, the Standards Board
expressly distinguished air-conditioned and non-air-conditioned vehicles for purposes of
section 3395, confirmed that it was not requiring that air conditioning be installed to
comply with the terms of the regulation, and clearly believed that non-air-conditioned
vehicle interiors could be deemed outdoor places of employment. 4
It is true that the emergency version of section 3395 “limited application of its
provisions to ‘outdoor places of employment at those times when the environmental risk
factors for heat illness as defined in (b), are present.’ ” (See ISOR at p. 2, italics added.)
3
Although this request was made by the California Rural Legal Assistance
Foundation, there is no indication that the Standards Board’s statements in response are
limited to agricultural transport vehicles as the Appeals Board and the DAR suggest.
4
While AC Transit suggests that this interpretation, if adopted, would apply to
“every driver of every vehicle” doing the “work” of driving, such a construction is
obviously overbroad as the regulation is clearly targeted at outdoor places of employment.
Thus, it would only cover employees who are required to drive or ride in vehicles during
the course of their employment, making such vehicles a worksite.
10
However, as stated in the ISOR, “[t]his limitation is not included in the proposed
permanent rule because of the variability of environmental risk factors and the resulting
difficulty of predicting with confidence when environmental risk factors for heat illness
may be present.” (Ibid.) And the FSOR expressly refused to reinsert similar language on
the same grounds. (FSOR at pp. 3, 15.) Thus, section 3395 is intended to apply to “all
outdoor places of employment in California year round, whether or not there is any risk
of heat illness.” (FSOR at p. 20; see also id. at p. 8 [noting Standards Board’s belief that
“requiring all employers with employees working outdoors to determine the WBGT [Wet
Bulb Globe Temperature] on a continuous, or even intermittent, basis would not
substantially contribute to control of employee risk of heat illness while at the same time
consuming resources that could have a greater effect implementing control measures,
such as providing readily available drinking water along with shade and other means of
cooling”].)
The Appeals Board argues that this regulatory history suggests that the Standards
Board deliberately avoided any language in the regulation that would limit its application
based on the presence or absence of environmental risk factors and that the trial court’s
proposed definition—stating that “if an enclosure or structure does not provide sufficient
environmental protections to be considered ‘indoor’ then it is ‘outdoor’ ”—does exactly
that, contrary to the intent of the Standards Board. And, indeed, the trial court appears to
have relied on these aspects of the regulatory record in concluding that the history
contained “contrary indications” regarding the appropriate definition of outdoor. We
agree with the Division, however, that the Appeals Board’s argument improperly
conflates two very different things.
In adopting the permanent version of section 3395, the Standards Board clearly
and repeatedly declined to include environmental triggers for when the heat illness
prevention standards would apply to outdoor work due to the difficulties employers
would encounter in constantly monitoring employee work environments to determine
whether any such adopted thresholds were met. (ISOR at p. 2; FSOR at p. 3.) Thus,
once a worksite is determined to be outdoor, section 3395 applies continuously and
11
prophylactically, regardless of whether there is any current risk of heat illness. (FSOR at
p. 20.) In contrast, the Standards Board unequivocally indicated that reference to
environmental factors is appropriate in determining whether certain atypical structures or
enclosures should be considered outdoor workplaces and therefore subject to section
3395. (FSOR at p. 28.) This approach is not inconsistent with the Standards Board’s ban
on specific environmental triggers, as any such analysis is a one-time determination
focused solely on whether the enclosure in question contains sufficient environmental
protections to “significantly reduce the net effect of the environmental risk factors that
exist immediately outside.” It therefore presents none of the issues of continuing
variability and unpredictability that caused the Standards Board to abandon reliance on
environmental triggers.
In addition, we are unpersuaded by the Appeals Board’s argument that the trial
court in this case created a two-pronged test that is contrary to the regulatory language
and history. For instance, the Appeal Board contends at length that if outdoor is defined
as “not in a building” in accordance to the first prong of the trial court’s test, then all
work vehicles—whether air-conditioned or non-air-conditioned—as well as underground
worksites must be considered outdoor places of employment, contrary to the position of
the Division and the regulatory history. 5 The Appeals Board further asserts that the
second prong of the trial court’s test—defining outdoor to mean an enclosure or structure
that does not provide sufficient environmental protections—significantly departs from the
plain meaning of the word outdoor.
We do not, however, view the trial court’s definition as bifurcated in this way.
Rather, outdoor is defined simply as outside of a building, a common meaning of the
word. It is only in determining what types of non-traditional structures or enclosures
5
The Appeals Board misreads the regulatory history to the extent it asserts that the
FSOR specifically declined to extend the protections of section 3395 to air-conditioned
vehicles. Rather, the referenced statement in the FSOR—which we quote in full above—
provides only that the Standards Board would not consider a requirement that all vehicles
provide air conditioning because that suggestion had not been adequately vetted during
the rulemaking process.
12
should be deemed buildings for purposes of this standard that the regulatory history
expressly indicates the need to consider whether the structures or enclosures
“significantly reduce the net effect of the environment risk factors that exist immediately
outside.” If they do not, then the Standards Board’s apparent intent is to protect
employees working in those environments “from the increased risk of heat illness that
can result from working without the environmental protections indoor working
environments can provide.” (ISOR at p. 2.) The trial court’s construction appropriately
takes into account this regulatory intent. Thus, under the trial court’s definition, neither
air-conditioned vehicles nor underground worksites would be deemed “outdoor” due to
their inherent cooling attributes. In contrast, it appears from the existing administrative
record that AC Transit’s non-air-conditioned buses may very well fall within the purview
of the outdoor standard.
We determine, then, that the regulatory history in this matter not only strongly
supports the interpretation of “outdoor places of employment” adopted by the trial
court—which is broad enough to include non-air-conditioned transit buses—but also
speaks unambiguously on that issue and is therefore conclusive. 6
Moreover, the trial court’s interpretation of section 3395 is consistent with the
underlying purpose of the entire regulatory scheme of which it is a part. Specifically, in
the particular context of workplace health and safety here at issue, our high court has
reviewed the statutory structure and—noting that the relevant provisions “speak in the
broadest possible terms”—has concluded that “the terms of the legislation are to be given
a liberal interpretation for the purpose of achieving a safe working environment.”
6
Because we find the rulemaking history both dispositive and consistent with the
regulatory language, we need not reach the issue of which agency’s interpretation, if any,
is entitled to greater deference in this context, a question discussed at length by the trial
court and strongly disputed by the parties. As stated above, “the ultimate resolution” of
this question of regulatory interpretation “rests with the courts.” (Carmona, supra, 13
Cal.3d at p. 310.) If anything, the fact that the two agencies tasked with applying section
3395—the Division and the Appeals Board—fundamentally disagree on its interpretation
argues against the existence of any consistent administrative construction to which we
should defer. (Yamaha, supra, 19 Cal.4th at p. 13.)
13
(Carmona, supra, 13 Cal.3d at pp. 312-313; see, e.g., Lab. Code, § 6401 [“Every
employer shall do every . . . thing reasonably necessary to protect the life, safety, and
health of employees.”]; id., § 6307 [providing that the Division “has the power,
jurisdiction, and supervision over every employment and place of employment in this
state, which is necessary to adequately enforce and administer all laws and lawful
standards and orders, or special orders requiring such employment and place of
employment to be safe, and requiring the protection of the life, safety, and health of every
employee in such employment or place of employment”].) On this basis, the Supreme
Court in Carmona rejected a narrow agency construction excluding short-handled hoes
from the purview of a regulation mandating that unsafe hand tools not be used.
(Carmona, supra, 13 Cal.3d at pp. 305-308.)
The agency in Carmona had reasoned that short-handled hoes were not inherently
dangerous, but only had the potential to cause harm with extended use in a bent-over
position. (Carmona, supra, 13 Cal.3d at pp. 305-308.) However, noting the “clear
language of the regulation” and the “comprehensive sweep” of worker safety legislation,
the Carmona court disagreed, holding that “any hand tool which causes injury, immediate
or cumulative, when used in the manner in which it was intended to be used may
constitute an ‘unsafe hand tool’ within the meaning of the regulation.” (Id. at p. 313.)
Similarly, in this case, selecting the interpretation of “outdoor” espoused by the trial court
both acknowledges the “comprehensive sweep” of worker safety legislation and chooses
from among common meanings the interpretation which will best attain the purpose of
section 3395, the prevention of heat illness in employees who do not work indoors. (See
Carmona, supra, 13 Cal.3d at p. 313; Katz, supra, 117 Cal.App.4th at p. 54 [“ ‘ “where 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 enlarged” ’ ”].)
14
Finally, although not necessary to our conclusion, we note that the current version
of section 3395 supports our construction of the term “outdoor.” 7 As stated above, this
iteration of the regulation still applies to “all outdoor places of employment,” and that
term remains undefined. (Cal. Code Regs., tit. 8, § 3395, subds. (a) & (b).) However, the
current regulation includes certain high-heat procedures which are triggered when the
temperature equals or exceeds 95 degrees Fahrenheit. (Id., subd. (e).) While these high-
heat procedures are only applicable to certain industries and would not apply to AC
Transit’s non-air-conditioned buses, they are nevertheless instructive because, pursuant to
the express terms of the regulation, they do apply to the “[t]ransportation or delivery of
agricultural products, construction materials or other heavy materials (e.g. furniture,
lumber, freight, cargo, cabinets, industrial or commercial materials), except for
employment that consists of operating an air-conditioned vehicle and does not include
loading or unloading.” (Id., subd. (a)(2)(E), italics added.) Moreover, subparagraph (2),
of which this language is a part, states that it is a “[l]ist of industries subject to all
7
AC Transit’s pending motion for judicial notice of the current version of section
3395 is hereby granted, and, on our own motion, we take judicial notice of the 2010
version of the regulations as well. (See Evid. Code, §§ 452, subd. (b); 459, subd. (a); see
also Cal. Code Regs., tit. 8, § 3395; former Cal. Code Regs., tit. 8, § 3395 [2010
version].) AC Transit argues that the current version of section 3395 is relevant because
it sets forth the requirements that it will be obligated to meet going forward if its non-air-
conditioned buses are deemed to be “outdoor places of employment.” The Division
objects, arguing that the sole issue before this court is whether the term “outdoor” should
be interpreted to include non-air-conditioned buses and thus any issues involving AC
Transit’s ability to comply with the regulation are irrelevant. While we observe that the
regulatory structure contains a number of alternatives to strict compliance, we agree with
the Division that those questions are not before us. (Lab. Code, §§ 143 [allowing for a
permanent variance from an occupational safety and health standard “upon a showing of
an alternate program, method, practice means, device, or process which will provide
equal or superior safety for employees”], 6450 [permitting Division to grant a temporary
variance]; see also Cal. Code Regs., tit. 8, § 3395, subd. (d) exceptions (1) & (2)
[allowing alternative procedures for providing access to shade, including use of cooling
measures, that provide equivalent protection]; FSOR at p. 46 [noting availability of
personal cooling devices].) Instead, we consider both the current version and the 2010
version of section 3395 only as they relate to the issue of regulatory interpretation with
which we are here presented.
15
provisions of this standard, including subsection (e) [the high-heat procedures].” (Id.,
subd. (a)(2), italics added.) Since section 3395 continues to apply only to outdoor places
of employment and purports to regulate certain non-air-conditioned vehicles, it is
apparent that, at least currently, the Standards Board intends “outdoor places of
employment” to be interpreted broadly enough to encompass non-air-conditioned
vehicles.
In sum, we find the trial court’s definition of “outdoor” to be consistent with the
language of section 3395 and amply supported by its regulatory history. Moreover, this
broader construction comports with the underlying purpose of the entire statutory
scheme: the achievement of safe working environments. (Carmona, supra, 13 Cal.3d at
pp. 312-313.) Under such circumstances, we will not here disturb it.
However, in its Order granting the Division’s petition for writ of mandate, the trial
court—after setting forth the “proper” definition of outdoor for purposes of section
3395—went on to instruct the Appeals Board to determine on remand “whether a bus is
physically ‘outdoor,’ whether employment in a bus is consistently or only intermittently
‘outdoor,’ and whether AC Transit provided water, shade or a shade equivalent, [and]
appropriate training.” We agree that the Appeals Board must determine on remand
whether AC Transit’s non-air-conditioned buses are “outdoor” places of employment for
purposes of section 3395. Specifically, as discussed above, the Appeals Board should
consider whether the buses at issue “significantly reduce the net effect of the environment
risk factors that exist immediately outside.” (FSOR at p. 28.) If they do not, they are
outdoor worksites subject to section 3395. The Appeals Board need not, however,
determine on remand whether employment as a bus driver on these non-air-conditioned
buses is only intermittently outdoors as the trial court suggests. Rather, the Standards
Board has indicated that even work that is only intermittently outdoors is covered by
section 3395 and that “it is the responsibility of the employer to determine if the time
spent indoors satisfies the requirements for an adequate supply of water and shade for
preventative recovery periods, thus leaving the employer with an obligation to provide
training.” (FSOR at p. 3.) Finally, the administrative record is clear that AC Transit
16
never argued that it had complied with section 3395 either before the ALJ or the Appeals
Board. Thus, it has forfeited this potential defense and is not entitled to raise it on
remand.
III. DISPOSITION
The Order and related Judgment are affirmed in part and reversed in part as set
forth herein. The trial court is instructed to vacate the related Writ and issue a new writ
of mandate in its place directing the Appeals Board to reconsider its DAR in light of this
opinion. Each party to bear its own costs.
17
_________________________
REARDON, J.
We concur:
_________________________
STREETER, ACTING P. J.
_________________________
SMITH, J.*
*Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
A142799 CA Industrial Relations v. CA OSHA
18
Trial Court:
Alameda County Superior Court
Trial Judge:
Hon. Evelio M. Grillo
Counsel for Defendant and Appellant:
J. Jeffrey Mojcher; Chief Counsel, California Occupational Safety and
Health Appeals Board
Aaron R. Jackson; Industrial Relations Counsel III, California Occupational
Safety and Health Appeals Board
Autumn R. Gonzales; Industrial Relations Counsel II, California
Occupational Safety and Health Appeals Board
Counsel for Real Party in Interest and Appellant
Robert D. Peterson; Robert D. Peterson Law Corporation
Counsel for Plaintiff and Respondent:
Amy D. Martin; Chief Counsel, Division of Occupational Safety and
Health
Allyce Kimerling; Staff Counsel, Division of Occupational Safety and
Health
A142799 CA Industrial Relations v. CA OSHA
19