Contractor Prevails in Part Against CalOSHA in Valley Fever Case

Bango Architecture & Design

Fever. Specifically, Valley fever. Caused by the fungus Coccidioides. It lives in the top two to 12 inches of soil, can become airborne when the soil is exposed, and can cause respiratory illness and even death. And apparently, it is present in many parts of California particularly in the Central Valley and along the coast. Who knew?

In Granite Construction Company v. Occupational Safety and Health Appeals Board, Case No. C086704 (2023), contractor Granite Construction was cited by CalOSHA for exposing its employees to Coccidioides at a large solar power plant known as California Flats Solar Project in Monterey California. The 3rd District Court of Appeal reversed in part. It should be noted that this case originally unpublished, it was then published, and then later depublished, so it should not be relied on for precedential value.

The Granite Construction Case

The California Flats Solar Project is located at a former cattle ranch. Before construction began, the Monterey County Planning Department required the project owner to take several measures to prevent the spread of Valley fever including preparation of a Valley fever management plan, to implement dust suppression measures, and to develop an educational handout about Valley fever for on-site workers and nearby residents. The Department also required the project’s general contractor to implement a worker training program about Valley fever before any grading activity.

The project owner and general contractor complied with the Department’s instructions. In addition, Granite Construction, a subcontractor on the project, discussed Valley fever in safety instructions to its employees, prepared a job hazard analysis form identifying Valley fever as a potential hazard, and instructed employees to keep material wet and to use a N95 dust make as necessary.

In May 2017, CalOSHA conducted an inspection of the project. The inspection ultimately centered on the potential of Granite Construction’s employees to be exposed to Coccidioides. Notably, during the site visit, CalOSHA inspectors did not wear respiratory protection, nor did they test for Coccidioides, and apparently no one contracted Valley Fever. Nevertheless, CalOSHA cited Granite Construction for three violations:

1. For requiring its employees to wear respirators without first providing a medical evaluation to determine their fitness to wear a respirator in violation of 8 CCR §5144(e)(1);
2. For failing to implement procedures to prevent exposure to Coccidioides during dust-generating activities and while working in dusty, windy environments in violation of 8 CCR §1509(a); and
3. For failing to require its employees to wear respirators “when effective engineering controls were not feasible, or while they were being instituted, to protect against exposure to harmful dust contaminated with coccidioides fungal (Valley Fever) spores during . . . dust generating activities and while working in dusty windy environments” in violation of 8 CCR §5144(a)(1).

Granite Construction disputed the allegations and following an administrative law hearing, the administrative law judge (ALJ) rejected CalOSHA’s claims finding that Granite Construction did not require its employees to wear respirators, but rather, that it was voluntary, and that there was no evidence that any worker was exposed to Coccidioides. After CalOSHA unsuccessfully petitioned for reconsideration the CalOSHA Board reversed the ALJ’s decision.

Note: This is something many people are not aware of. While California’s administrative law procedures allows for a party to challenge an administrative decision before an AJL, the administrative agency has the ability to overturn the ALJ. Seems unfair right? Judge, jury, and executioner all in one. But it’s technically not, since a party can file a petition for administrative mandate with the superior court, although it can make the process a long one and is somewhat slanted in favor of the administrative agency, the rationale being that decisions by administrative agencies should generally not be disturbed.

This is exactly what Granite Construction did. Granite Construction filed a petition for administrative mandate with the superior court where it was denied by the trial court. Granite Construction then appealed.

The Appeal

On appeal, the 3rd District Court of Appeal explained that its function on appeal was the same as that of the trial court in ruling on the petition for the writ of administrative mandate, specifically, that review shall not be extended further than to determine, based on the entire record certified by the appeals board, whether:

(a) The appeals board acted without or in excess of its powers.

(b) The order or decision was procured by fraud.

(c) The order or decision was unreasonable.

(d) The order or decision was not supported by substantial evidence.

(e) If findings of fact are made, such findings of fact support eh order or decision under review.

Labor Code §6629.

Further, explained the Court of Appeal, in evaluating whether the Board’s decision was supported by substantial evidence, “[w]e view the evidence in a light most favorable to the Board’s decision, drawing all reasonable inferences in resolving conflicts in the evidence in favor of the decision.”

As to the Section 5144(a)(1) violation, the Court of Appeal noted that the Board had applied two similar but different standards in the past: (1) a “harmful exposure” standard that looks at whether an employee was exposed to “dusts, fumes, mists, vapors, or gases . . . of such a nature by inhalation as to result in, or have a probability to result in, injury, illness, disease, impairment or loss of function” and which the Board has typically applied to Section 5144(a)(1) violations; and (2) a “zone of danger” standard that looks at whether an employee was “in a zone danger” or “that it is reasonably predictable by operational necessity or otherwise, including inadvertence, that employees have been, are, or will be in the zone of danger” that the Board has not typically applied to Section 5144(a)(1) violations.  However, under either standard held the Court of Appeal, substantial evidence did not support the Board’s decision:

Here, however, nothing we have found in the record shows that any part of the worksite “present[ed] [a] danger to employees.” The CDC, to be sure, has said Coccidioides is endemic in California. But that does not mean that the fungus is present everywhere in the state (or for that matter, everywhere in Monterey County)—which even Division staff conceded. The Department of Industrial Relations, moreover, has indicated that Monterey County and seven other counties have relatively high rates of Valley fever, with rates over 10 per 100,000 people. But that does not mean that Coccidioides was present (or even likely present) at the worksite here. Nor does it even show a meaningful probability that the fungus was present. And although Monterey County and even Granite Construction demonstrated concerns about Valley fever and took steps to limit potential exposure, that too does not show that Coccidioides was actually present. All this evidence instead only shows, with no degree of certainty, that the worksite might have presented a danger to employees because Coccidioides might have been present in the soil. That, however, is insufficient to support the Board’s finding . . .

As to the Section 1509(a) violation, the Court of Appeal noted:

Section 1509, subdivision (a) states: “Every employer shall establish, implement and maintain an effective Injury and Illness Prevention Program in accordance with section 3203 of the General Industry Safety Orders.” Section 3203, in turn, as relevant here, states: “[E]very employer shall establish, implement and maintain an effective Injury and Illness Prevention Program (Program)” that, at a minimum, includes “methods and/or procedures for correcting unsafe or unhealthy conditions, work practices and work procedures in a timely manner based on the severity of the hazard: (A) When observed or discovered; and, (B) When an imminent hazard exists which cannot be immediately abated without endangering employee(s) and/or property, remove all exposed personnel from the area except those necessary to correct the existing condition.”

And here, held the Court of Appeal, there was no substantial evidence that Granite Construction’s employees were exposed to Coccidioides.

However, as to the Section 5144(e)(1) violation, the Court of Appeals, citing to the testimony of one Granite Construction’s employees that masks were “required,” affirmed the Board’s decision finding that the use of masks “was not a suggestion or advice; it was a ‘rule.'”

Conclusion

Granite Construction takes a relatively deep dive into a very specific situation. However, the lesson for contractors is that, while Granite Construction successfully appealed two of three citations, the pathway to get there was both long (i.e., an ALJ hearing, a writ of administrative mandate, and an appeal) and the law generally is in favor of administrative agencies.

And if you’re a Peggy Lee fan . . .