`
`
`
`George W. Goodman, OSB #794984
`gwg@cumminsgoodman.com
`James S. Anderson, OSB #051885
`jsa@cumminsgoodman.com
`Cummins, Goodman, Denley & Vickers, P.C.
`P.O. Box 609
`Newberg, OR 97132-0609
`Telephone: (503) 476-8200
`Attorneys for Plaintiffs.
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
`
`MEDFORD DIVISION
`
`OREGON MANUFACTURERS AND
`COMMERCE, an Oregon non-profit
`association, ASSOCIATED OREGON
`LOGGERS, INC., an Oregon non-profit
`association, and OREGON FOREST &
`INDUSTRIES COUNCIL, an Oregon
`non-profit association,
`
`Plaintiffs,
`
`v.
`
`OREGON OCCUPATIONAL SAFETY
`AND HEALTH DIVISION, a division of the
`Oregon Department of Consumer and Business
`Services, RENEE STAPLETON, in her official
`capacity as acting administrator for the Oregon
`Occupational Safety and Health Division,
`OREGON DEPARTMENT OF CONSUMER
`AND BUSINESS SERVICES, an Agency of the
`State of Oregon, and ANDREW STOLFI, in his
`official capacity as the Director of the Oregon
`Department of Consumer and Business Services,
`
`
`Defendants.
`
`
`
`CASE NO. 1:22-cv-00875
`
`
`
`
`COMPLAINT
`
`
`
`
`
`
`
`
`
`
`
`
`NOW COMES OREGON MANUFACTURERS AND COMMERCE, ASSOCIATED
`
`OREGON LOGGERS, INC., AND OREGON FOREST & INDUSTRIES COUNCIL,
`Page 1 - COMPLAINT
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 2 of 19
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`
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`(collectively Plaintiffs), and file this Complaint for declaratory and injunctive relief stating as
`
`follows:
`
`PARTIES
`
`1.
`
`
`
`Plaintiff Oregon Manufacturers and Commerce (“OMC”) is an Oregon non-profit
`
`corporation. It is an association of approximately 16 Oregon companies employing thousands of
`
`Oregonians which is dedicated to promoting, protecting, and advancing Oregon manufacturers
`
`and their allied partners in commerce.
`
`2.
`
`
`
`Plaintiff Associated Oregon Loggers, Inc. (“AOL”) is an Oregon non-profit corporation.
`
`It is a statewide trade association representing some 1,000 member companies engaged in the
`
`harvest and sustainable forest management of Oregon’s 30 million acres of forestland.
`
`3.
`
`
`
`Plaintiff Oregon Forest & Industries Council (“OFIC”) is an Oregon non-profit
`
`corporation. It is a trade association representing more than 50 Oregon forestland owners and
`
`forest products manufacturers. OFIC members protect and manage more than five million acres
`
`of Oregon forestlands, employ nearly 60,000 Oregonians, and make Oregon the nation’s largest
`
`state producer of softwood lumber and plywood.
`
`
`
`
`
`Defendant Oregon Occupational Safety and Health Division (“OR-OSHA”) is a Division
`
`4.
`
`of the Oregon Department of Consumer and Business Services.
`
`5.
`
`
`Defendant Renee Stapleton is the Acting Administrator of OR-OSHA.
`Page 2 - COMPLAINT
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 3 of 19
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`
`
`6.
`
`
`
`Defendant Oregon Department of Consumer and Business Services (“DCBS”) is an
`
`Oregon State Agency.
`
`Defendant Andrew Stolfi is the Director of the Oregon DCBS.
`
`7.
`
`
`
`
`
`JURISDICTION AND VENUE
`
`8.
`
`This action arises under federal law, including the 14th Amendment to the United States
`
`Constitution, 42 U.S.C. §1983 and §1988, to redress the deprivation, under the color of state law,
`
`of rights, privileges, and immunities secured to Plaintiffs by the Constitution of the United
`
`States.
`
`9.
`
`Subject matter jurisdiction is appropriate in this Court under 28 U.S.C. §1331 and 28
`
`U.S.C. §1343.
`
`
`
`
`
`Supplemental jurisdiction over the state law claims stated herein is appropriate under 28
`
`10.
`
`U.S.C. §1367, as the claims are so related to the claims over which the Court has original
`
`jurisdiction that they form part of the same case or controversy between the parties.
`
`11.
`
`This Court has personal jurisdiction over Defendants because they have committed acts
`
`in this District that violate the rights of Plaintiffs’ members which are protected by the
`
`Constitution of the United States.
`Page 3 - COMPLAINT
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 4 of 19
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`
`
`12.
`
`
`
`Venue is appropriate under 28 U.S.C. §1391 as the events giving rise to these claims
`
`occurred in this judicial district and will affect Plaintiffs’ members’ activities within the judicial
`
`district.
`
`13.
`
`
`
`Divisional venue pursuant to LR 3-2 is appropriate as the challenged rules will have a
`
`substantial impact upon the activities of Plaintiffs’ members within this District.
`
`14.
`
`Plaintiffs request a declaration of their rights under the Constitution of the United States.
`
`The Court may declare the rights of Plaintiffs and grant further necessary and proper relief based
`
`thereon, including injunctive relief under to Fed. Civ. P. 65. 28 U.S.C. §§ 2201-2202.
`
`FACTUAL ALLEGATIONS
`
`15.
`
`Plaintiffs’ members are substantially comprised of Oregon employers who will be subject
`
`to regulations recently adopted by Defendant OR-OSHA related to regulation of employee
`
`exposure to wildfire smoke and apparent temperatures (heat index) in excess of 80 degrees
`
`Fahrenheit.
`
`16.
`
`As employers subject to enforcement of OR-OSHA’s recently adopted regulations,
`
`Plaintiffs’ members have standing to bring this action in their own right and, in consideration of
`
`judicial economy and efficiency, have requested that Plaintiffs bring the action to the court on
`
`behalf of their respective members.
`
`/ / / /
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`Page 4 - COMPLAINT
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 5 of 19
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`
`
`17.
`
`The interests Plaintiffs seek to protect are germane to Plaintiffs’ purposes as trade
`
`associations.
`
`A. The Wildfire Smoke Rules
`
`18.
`
`
`
`On May 10, 2022, Defendant Oregon Occupational Safety and Health Division (“OR-
`
`OSHA”) adopted Oregon Administrative Rules (“OAR”) 437-002-1081 and 437-004-9791. (Ex.
`
`1.).
`
`19.
`
`
`
`Both rules are entitled “Protection from Wildfire Smoke” and have an effective date of
`
`July 1, 2022.
`
`20.
`
`
`
`While the text of the rules is identical in relevant manner for purposes of this Complaint,
`
`OAR 437-002-1081 applies to general industry, while OAR 437-004-9791 applies to places of
`
`employment subject to the rules for agriculture in Division 2 of Chapter 437.
`
`21.
`
`
`
`Defendant OR-OSHA’s “Rulemaking Summary” makes clear that employers covered
`
`under Division 3 (Construction) and Division 7 (Forest Activities) of Chapter 437, must also
`
`comply with OAR 437-002-1081.
`
`22.
`
`
`
`The Scope and Application sections of both OAR 437-002-1080 and OAR 437-004-9791
`
`are identical and provide in part that: “This standard applies to public and private sector
`
`employers whose employees are or will be exposed to wildfire smoke where the ambient air
`
`Page 5 - COMPLAINT
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`
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 6 of 19
`
`
`
`concentration for fine particulate matter (PM2.5) is at or above 35.5 µg/m3 (Air Quality Index
`
`value of 101 for PM2.5).” Emphasis added.
`
`23.
`
`
`
`The rules’ requirements therefore apply to employers whose employees are or will be
`
`exposed to wildfire smoke when such exposure coincides with a PM2.5 Air Quality Index level
`
`of at least 101 for a particular work location but do not distinguish between contributions to the
`
`Air Quality Index level from wildfire smoke in comparison to other pollutants.
`
`24.
`
`
`
`Both OAR 437-002-1080 and OAR 437-004-9791 contain an identical definition of
`
`wildfire smoke: “Emissions from unplanned fires in wildlands, which may include adjacent
`
`developed and cultivated areas to which the fire spreads or from where it originates.”
`
`25.
`
`
`
`Both OAR 437-002-1080 and OAR 437-004-9791 contain an identical definition of the
`
`AQI: “The Air Quality Index (AQI) was developed by the U.S. Environmental Protection
`
`Agency (EPA) as an indicator of overall air quality and is based on the five criteria pollutants
`
`regulated under the Clean Air Act: ground-level ozone, particulate matter, carbon monoxide,
`
`sulfur dioxide, and nitrogen dioxide.”
`
`26.
`
`
`
`Both OAR 437-002-1080 and OAR 437-004-9791 contain provisions requiring
`
`employers to provide training, perform exposure assessments, and implement exposure controls
`
`if employees may be or are exposed to ambient air concentration not limited to wildfire smoke in
`
`particular, but to PM 2.5 at or above an AQI of 101.
`
`/ / / /
`
`Page 6 - COMPLAINT
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 7 of 19
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`
`
`27.
`
`
`
` Both OAR 437-002-1080 and OAR 437-004-9791 contain provisions advising
`
`employers that they can comply with the requirements to monitor the AQI for PM2.5 levels at
`
`their work sites by:
`
`(a) checking the current average and forecasted AQI value for PM2.5 from the Oregon
`
`Department of Environmental Quality, U.S. EPA AirNow or Interagency Wildland Fire
`
`Air Quality Response Program websites, or equivalent source;
`
`(b) checking notifications of air quality advisories due to wildfire smoke issued by the
`
`Oregon Department of Environmental Quality or local government health agencies;
`
`(c) directly measuring workplace ambient air concentration for PM2.5 in accordance with the
`
`testing device manufacturer’s user instructions; or
`
`(d) if the employer determines and can demonstrate that none of the methods in subsections
`
`(3)(a) through (3)(c) of this standard are available for their work location, the employer
`
`can then use the 5-3-1 Visibility Index provided in Appendix B, Table 1 of this standard
`
`to estimate the current air concentration for PM2.5, and equivalent AQI value, during
`
`daylight hours.
`
`28.
`
`
`
`Neither OAR 437-002-1080 nor OAR 437-004-9791 contains any method by which an
`
`employer can determine whether any particulates from wildfire smoke are contained within the
`
`PM2.5 contaminants present at a given work site, no less the extent of contribution, which in turn
`
`makes it infeasible to identify when and if the rules are applicable to a particular work site.
`
`/ / / /
`
`/ / / /
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`Page 7 - COMPLAINT
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 8 of 19
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`
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`B. The Ambient Heat Rules
`
`
`
`29.
`
`
`
`On May 9, 2022, Defendant Oregon Occupational Safety and Health Division (“OR-
`
`OSHA”) adopted Oregon Administrative Rules (“OAR”) 437-002-0156 and 437-004-1131. (Ex.
`
`2).
`
`30.
`
`
`
`Both rules are entitled “Heat Illness Prevention” and have an effective date of June 15,
`
`2022.
`
`31.
`
`
`
`While the text of the rules is identical in relevant manner for purposes of this Complaint,
`
`OAR 437-002-0156 applies to general industry, while OAR 437-004-1131 applies to places of
`
`employment subject to the rules for agriculture in Division 2 of Chapter 437.
`
`32.
`
`
`
`Defendant OR-OSHA’s “Rulemaking Summary” makes clear that employers covered
`
`under Division 3 (Construction) and Division 7 (Forest Activities) of Chapter 437 must also
`
`comply with OAR 437-002-0156.
`
`33.
`
`
`
`The Scope and Application sections of both OAR 437-002-0156 and OAR 437-004-1131
`
`are identical and provide in part that the standard apply: “whenever an employee performs work
`
`activities, whether in indoor or outdoor environments, where the heat index (apparent
`
`temperature) equals or exceeds 80 degrees Fahrenheit.”
`
`/ / / /
`
`/ / / /
`
`Page 8 - COMPLAINT
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 9 of 19
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`
`
`34.
`
`
`
`Both OAR 437-002-0156 and OAR 437-004-1131 contain requirements for employers to
`
`develop and implement a written heat illness prevention rest break schedule for workers when
`
`the heat index at a work site is 90 degrees Fahrenheit or greater.
`
`35.
`
`
`
`While the rest breaks are permitted to coincide with other unpaid breaks required by law,
`
`both rules specifically state that if the heat rest breaks do not coincide with existing unpaid mail
`
`breaks, the heat illness prevention rest break is a “work assignment.”
`
`36.
`
`
`
`By designating the heat illness prevention work breaks as a “work assignment,”
`
`Defendants are effectively requiring employers to pay workers for these mandated heat illness
`
`prevention breaks.
`
`37.
`
`
`
`Both OAR 437-002-0156 and OAR 437-004-1131 contain requirements for employers to
`
`develop and implement a written acclimatization plan for workers.
`
`38.
`
`
`
`While the rules permit employers to develop and implement their own plans, the rules do
`
`not provide requirements for exactly when such plans are triggered, how long such plans must be
`
`implemented if the weather changes or what type of employer-specific plan would be considered
`
`not in compliance.
`
`/ / / /
`
`/ / / /
`
`/ / / /
`
`Page 9 - COMPLAINT
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 10 of 19
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`
`
`FIRST CLAIM FOR INJUNCTIVE RELIEF
`
`AS TO OAR 437-002-1080 AND OAR 437-004-9791
`
`Count 1
`
`(Violation of Constitutional Due Process)
`
`39.
`
`
`
`Plaintiffs re-allege and incorporate the allegations set forth in Paragraphs 1-38 above as if
`
`fully set forth herein.
`
`40.
`
`
`
`OAR 437-002-1080 and OAR 437-004-9791 fail to provide employers, including
`
`Plaintiffs’ members, with a means to determine if wildfire smoke particulates are contained
`
`within the PM2.5 contaminants at a particular work site, thus making the rules applicable to that
`
`work site.
`
`41.
`
`
`
`OAR 437-002-1080 and OAR 437-004-9791 provide inconsistent requirements as to
`
`what metric should be utilized to measure the PM2.5 levels at a work site (AQI, AQI Now, AQI
`
`average) rendering employers, including Plaintiffs’ members, unable to definitively determine
`
`whether they are in compliance with the rules’ requirements.
`
`42.
`
`
`
`OAR 437-002-1080 and OAR 437-004-9791 require use of a metric for measuring
`
`PM2.5 contaminants (the AQI) which will be predictably imprecise for a particular worksite,
`
`rendering the rule subject to arbitrary and capricious enforcement.
`
`
`
`The 14th Amendment to the United States Constitution prohibits any state from depriving
`
`43.
`
`Page 10 - COMPLAINT
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`
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 11 of 19
`
`
`
`any person of life, liberty or property, without due process of law. The provisions of OAR 437-
`
`002-1080 and OAR 437-004-9791 are so vague that they do not provide employers, including
`
`Plaintiffs’ members, with fair notice of what conduct is required or proscribed, and as such are
`
`violative of the due process protections of the 14th Amendment to the United States Constitution.
`
`44.
`
`Plaintiffs are entitled to a declaration that OAR 437-002-1080 and 437-004-9791 are
`
`unconstitutionally vague and therefore violate the rights of Plaintiffs’ members under the 14th
`
`Amendment to the United States Constitution.
`
`Count 2
`
`(Lack of Statutory Authority)
`
`45.
`
`
`
`Plaintiffs re-allege and incorporate the allegations set forth in Paragraphs 1-44 above as if
`
`fully set forth herein.
`
`46.
`
`
`
`Defendant OR-OSHA, under the designated authority of Defendant Stolfi, derives its
`
`authority to adopt regulations from the Oregon Safe Employment Act (“OSEA”) set forth in
`
`ORS Chapter 654 et seq.
`
`47.
`
`
`
`The Oregon Legislature adopted the OSEA in 1973 and set forth the purpose of the
`
`OSEA in 654.003. The purpose of the OSEA is “to ensure as far as possible safe and healthful
`
`working conditions for every working person in Oregon, to preserve our human resources and to
`
`reduce the substantial burden, in terms of lost production, wage loss, medical expenses, disability
`
`compensation payments and human suffering, that is created by occupational injury and disease.”
`
`Page 11 - COMPLAINT
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`
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`
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 12 of 19
`
`
`
`48.
`
`To accomplish the purpose of the OSEA, the legislature stated it intended to “provide a
`
`procedure that would, among other things:
`
`“(3) Authorize the Director of the Department of Consumer and Business Services and
`
`the designees of the director to set reasonable, mandatory, occupational safety and health
`
`standards for all employments and places of employment;… and
`
`
`
`(6) Assure that Oregon assumes fullest responsibility, in accord with the federal
`
`Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), for the development,
`
`administration and enforcement of safety and health laws and standards.”
`
`49.
`
`
`
`The OSEA provides the Director of the DCBS and his designees with authority to adopt
`
`reasonable regulations to address occupational hazards.
`
`50.
`
`
`
`The OSEA does not provide the Director of the DCBS and/or his designees with the
`
`authority to regulate general societal hazards which affect employees in and out of the work
`
`environment.
`
`51.
`
`
`
`OAR 437-002-1080 and OAR 437-004-9791 regulate a hazard of daily life, air pollution
`
`tied to PM2.5 contaminants. These regulations are a significant and unauthorized expansion of
`
`OR-OSHA’s regulatory authority in that they amount to a general health measure which may fall
`
`within the authority of the Oregon Health Authority or the Department of Environmental
`
`Quality, but is outside of OR-OSHA’s statutory mission.
`
`/ / / /
`
`Page 12 - COMPLAINT
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 13 of 19
`
`
`
`52.
`
`
`
`The Oregon Legislature stated overtly its intent that the statutory authority provided in
`
`the OSEA would be in accord with the federal Occupational Safety and Health Act of 1970 for
`
`the development, administration, and enforcement of safety and health laws and standards.
`
`53.
`
`
`
`OAR 437-002-1080 and OAR 437-004-9791 are inconsistent with the Oregon
`
`Legislature’s stated intent that the OSEA would be administered and enforced in accord with the
`
`Federal Occupational Safety and Health Act of 1970, in that those standards regulate a general
`
`societal hazard rather than an occupational hazard which, as such, are not authorized by, nor in
`
`accord with, the federal OSH Act.
`
`54.
`
`
`
`Defendants have exceeded their statutory authority to regulate occupational hazards in
`
`adopting OAR 437-002-1080 and OAR 437-004-9791. The rules are irreconcilably inconsistent
`
`with the intent of the Oregon Legislature that the OSEA be administered and enforced in
`
`accordance with the Federal Occupational Safety and Health Act of 1970.
`
`55.
`
`Defendants’ unauthorized promulgation of OAR 437-002-1080 and 437-004-9791
`
`require Plaintiffs’ members to expend resources in an effort to develop exposure plans,
`
`implement exposure controls, and train employees on such plans and controls.
`
`56.
`
`
`
`Defendant OR-OSHA’s anticipated enforcement of the requirements of OAR 437-002-
`
`1080 and 437-004-9791 will require employers, including Plaintiffs’ members, to expend
`
`resources to defend against said enforcement actions despite their improper promulgation with
`
`Page 13 - COMPLAINT
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`
`
`
`
`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 14 of 19
`
`
`
`no available provision in law to allow recovery of those expenses should they prevail.
`
`57.
`
`Plaintiffs are entitled to a declaration that OR-OSHA exceeded its statutory authority in
`
`promulgating OAR 437-002-1080 and 437-004-9791.
`
`SECOND CLAIM FOR INJUNCTIVE RELIEF
`
`AS TO OAR 437-002-0156 AND OAR 437-004-1131
`
`Count 1
`
`(Violation of Constitutional Due Process)
`
`58.
`
`
`
`Plaintiffs re-allege and incorporate the allegations set forth in Paragraphs 1-57 above as if
`
`fully set forth herein.
`
`59.
`
`
`
`OAR 437-002-0156 and OAR 437-004-1131 fail to provide employers, including
`
`Plaintiffs’ members, with a means to determine when the acclimatization plan is required to be
`
`triggered on a particular work site, how long such plans must be implemented if the weather
`
`changes or what type of employer-specific plan would be considered not in compliance
`
`60.
`
`
`
`The lack of any direction in OAR 437-002-0156 and OAR 437-004-1131 as to what
`
`triggers implementation of the plan procedures or how long the procedures must be
`
`implemented, renders employers, including Plaintiffs’ members, unable to definitively determine
`
`whether they are in compliance with the rules’ requirements.
`
`61.
`
`
`
`OAR 437-002-0156 and OAR 437-004-1131 require implementation of acclimatization
`
`Page 14 - COMPLAINT
`
`
`
`
`
`
`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 15 of 19
`
`
`
`procedures without definitive requirements for when such procedures must be implemented on a
`
`particular work site, rendering the rule subject to arbitrary and capricious enforcement.
`
`62.
`
`
`
`The 14th Amendment to the United States Constitution prohibits any state from depriving
`
`any person of life, liberty or property, without due process of law. The provisions of OAR 437-
`
`002-0156 and OAR 437-004-1131 are so vague that they do not provide employers, including
`
`Plaintiffs’ members, with fair notice of what conduct is required or proscribed, and as such are
`
`violative of the due process protections of the 14th Amendment to the United States Constitution.
`
`63.
`
` Plaintiffs are entitled to a declaration that OAR 437-002-1080 and 437-004-9791 are
`
`unconstitutionally vague and therefore violate the rights of Plaintiffs’ members under the 14th
`
`Amendment to the United States Constitution.
`
`Count 2
`
`(Lack of Statutory Authority)
`
`64.
`
`
`
`Plaintiffs re-allege and incorporate the allegations set forth in Paragraphs 1-63 above as if
`
`fully set forth herein.
`
`65.
`
`
`
`Defendant OR-OSHA, under the designated authority of Defendant Stolfi, derives its
`
`authority to adopt regulations from the Oregon Safe Employment Act (“OSEA”) set forth in
`
`ORS Chapter 654 et seq.
`
`66.
`
`
`
`The Oregon Legislature adopted the OSEA in 1973 and set forth the purpose of the
`
`Page 15 - COMPLAINT
`
`
`
`
`
`
`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 16 of 19
`
`
`
`OSEA in 654.003. The purpose of the OSEA is “to ensure as far as possible safe and healthful
`
`working conditions for every working person in Oregon, to preserve our human resources and to
`
`reduce the substantial burden, in terms of lost production, wage loss, medical expenses, disability
`
`compensation payments and human suffering, that is created by occupational injury and disease.”
`
`67.
`
`To accomplish the purpose of the OSEA, the legislature stated it intended to “provide a
`
`procedure that would, among other things:
`
`“(3) Authorize the Director of the Department of Consumer and Business Services and
`
`the designees of the director to set reasonable, mandatory, occupational safety and health
`
`standards for all employments and places of employment;… and
`
`
`
`(6) Assure that Oregon assumes fullest responsibility, in accord with the federal
`
`Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), for the development,
`
`administration and enforcement of safety and health laws and standards.”
`
`68.
`
`
`
`The OSEA provides the Director of the DCBS and his designees with authority to adopt
`
`reasonable regulations to address occupational hazards.
`
`69.
`
`
`
`The OSEA does not provide the Director of the DCBS and/or his designees with the
`
`authority to regulate general societal hazards which affect employees in and out of the work
`
`environment.
`
`70.
`
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`OAR 437-002-0156 and OAR 437-004-1131 regulate a hazard of daily life, exposure to
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`apparent temperatures in excess of 80 degrees Fahrenheit. These regulations are a significant
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`Page 16 - COMPLAINT
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 17 of 19
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`expansion of OR-OSHA’s regulatory authority and amount to a general health measure which
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`may fall within the authority of the Oregon Health Authority.
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`71.
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`OAR 437-002-0156 and OAR 437-004-1131 contain provisions which provide: “Except
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`when the heat illness prevention rest breaks coincide with the existing unpaid meal break, the
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`heat illness prevention rest break is a work assignment.” By mandating that a heat illness
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`prevention break is a “work assignment,” OR-OSHA is regulating employee wages.
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`72.
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`The OSEA provides no statutory authority for Defendants to regulate wages in the form
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`of paid rest periods or otherwise. Rather the Oregon Legislature provided statutory authority
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`over regulation of wages to the Bureau of Labor and Industries.
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`73.
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`The Oregon Legislature stated that its intent that the statutory authority provided in the
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`OSEA would be in accord with the Federal Occupational Safety and Health Act of 1970 for the
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`development, administration and enforcement of safety and health laws and standards.
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`74.
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`OAR 437-002-0156 and OAR 437-004-1131 are inconsistent with the Oregon
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`Legislature’s stated intent that the OSEA would be administered and enforced in accord with the
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`Federal Occupational Safety and Health Act of 1970, in that those standards regulate a general
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`societal hazard rather than an occupational hazard which is not authorized by the Federal Act.
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`75.
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`Defendants exceed their statutory authority to regulate occupational hazards in adopting
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`OAR 437-002-0156 and OAR 437-004-1131. The rules are further inconsistent with the intent
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`Page 17 - COMPLAINT
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 18 of 19
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`of the Oregon Legislature that the OSEA be administered and enforced in accordance with the
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`Federal Occupational Safety and Health Act of 1970.
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`76.
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`Defendants’ unauthorized promulgation of OAR 437-002-0156 and 437-004-1131
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`require Plaintiffs’ members to expend resources developing heat illness and acclimatization
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`plans, implementing acclimatization plans and paid break schedules, and training employees on
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`such plans and controls.
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`77.
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`Defendant OR-OSHA’s anticipated enforcement of the requirements of OAR 437-002-
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`1080 and 437-004-9791 will require employers, including Plaintiffs’ members, to expend
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`resources to defend against said enforcement actions despite their improper promulgation with
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`no available provision in law to recover those expenses should they prevail.
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` Plaintiffs are entitled to a declaration that OR-OSHA exceeded its statutory authority in
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`78.
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`promulgating OAR 437-002-0156 and 437-004-1131.
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`WHEREFORE, Plaintiffs pray that this Honorable Court:
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`1.
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`2.
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`Enter Judgment in favor of Plaintiffs on each and every Claim for Relief;
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`Issue a declaration that OAR 437-002-1080 and 437-004-1080 are
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`unconstitutionally vague.
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`3.
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`Issue a declaration that Defendants exceeded their statutory authority in
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`promulgating OAR 437-002-1080, OAR 437-002-0156, OAR 437-004-9791 and
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`OAR 437-004-1131;
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`4.
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`Issue a temporary restraining order, preliminary injunction, and permanent
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`Page 18 - COMPLAINT
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`Case 1:22-cv-00875-CL Document 1 Filed 06/15/22 Page 19 of 19
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`injunction against Defendants prohibiting enforcement of OAR 437-002-1080,
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`OAR 437-002-0156, OAR 437-004-9791 and OAR 437-004-1131;
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`Charge all costs of this action against Defendants;
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`Award reasonable attorneys’ fees to Defendant pursuant to 42 U.S.C. §1983 and
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`5.
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`6.
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`all other basis in law and equity; and
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`7.
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`Award such other relief as the Court deems just and proper.
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`DATED this 15th day of June, 2022.
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`CUMMINS, GOODMAN,
`DENLEY & VICKERS, P.C.
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`/s/ George W. Goodman
`George W. Goodman, OSB #794984
`gwg@cumminsgoodman.com
`James S. Anderson, OSB #051885
`jsa@cumminsgoodman.com
`Cummins, Goodman, Denley & Vickers, P.C.
`100 S. College Street
`Newberg, OR 97132-0609
`Telephone: (503) 476-8200
`Of Attorneys for Plaintiffs
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`Trial Attorney: George W. Goodman, OSB #79498
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