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The California Flats Solar Project is a large solar power plant built on part of a former cattle ranch in the southeastern corner of Monterey County. Granite Construction was involved as a subcontractor in the construction of this project.

The Monterey County Planning Department required the primary project contractor to prepare and implement a worker training program about Valley fever before any grading activity. Consistent with these requirements, the owner of the project site created a Valley fever fact sheet, a Valley fever training program, and a Valley fever management plan for the project. The project general contractor, in turn, created a safety plan that identified Valley fever as a potential risk and described methods for mitigating this risk. Granite Construction also discussed Valley fever in safety instructions to its employees.

In May 2017, Cal/OSHA began an inspection of the project worksite, which ultimately centered on the potential exposure of Granite Construction’s employees to Coccidioides, the fungus which causes Valley fever. During their site visits, Cal/OSHA staff did not wear respiratory protection to prevent their own potential exposure to Coccidioides. Nor did they test the site for Coccidioides, though staff assumed that tests were available to determine the presence of the fungus. No evidence in the record shows that any Granite Construction employee contracted Valley fever. Nor does any testimony show that any person who visited the worksite contracted Valley fever.

Cal/OSHA issued a citation to Granite Construction for allegedly violating three regulations. It alleged Granite Construction violated one regulation because it required its employees to wear masks without first providing a medical evaluation to determine their fitness to wear them. And it alleged the company violated two other regulations because it exposed its employees to dust containing a harmful fungus – namely, Coccidioides, the fungus that causes Valley fever – and failed to implement adequate measures to limit this exposure.

After Granite Construction disputed these allegations, an ALJ rejected the Division’s claims. The ALJ reasoned that no credible evidence showed that Granite Construction required its employees to wear masks and no reliable evidence showed that Coccidioides was present at the worksite.

But after the Cal/OSHA petitioned for reconsideration, the Occupational Safety and Health Appeals Board reversed on these issues and ruled for Cal/OSHA. The trial court later denied Granite Construction’s petition for writ of administrative mandate seeking to set aside the Board’s decision.

On appeal from the trial court, the Court of Appeal reversed in the published case of Granite Construction Co. v. Occupational Safety and Health Appeals Bd. – C096704 (September 2023). It agreed with Granite Construction’s claim that insufficient evidence shows its employees were exposed to Coccidioides. But it ejected its additional claim that it allowed (rather than required) its employees to wear masks, finding sufficient evidence supports the Board’s contrary ruling on this point.

Granite Construction challenged the Board’s finding that it violated California Code of Regulations, title 8, section 5144(a)(1) – a finding that was largely premised on the Board’s conclusion that the company exposed its employees to Coccidioides because no evidence showed Coccidioides was present at the worksite.

Over the years, the Board has discussed two competing standards for evaluating whether an employee has been exposed to an atmospheric contaminant within the meaning of this regulation. It established the first standard – the “harmful exposure” standard – decades ago. Under this standard, the Division must show “ ‘[a]n exposure to dusts, fumes, mists, vapors, or gases . . . [o]f such a nature by inhalation as to result in, or have a probability to result in, injury, illness, disease, impairment, or loss of function.’ ”

The Board has since suggested that an alternative standard – the “zone of danger” standard – might be more appropriate in evaluating alleged violations of section 5144(a)(1). Under this alternative standard, the Division must show either that the employees have been or are in the zone of 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.

To date, the Division has yet to decide which of these two standards – the “harmful exposure” standard or the “zone of danger” standard – is the appropriate one in cases involving alleged violations of section 5144(a)(1). It has instead, in each case it has considered these standards, found it unnecessary to decide between the two standards because it concluded that both favor the same result.

In its decision here, the Board noted that the “harmful exposure” standard is the one it has applied in past decisions involving section 5144(a)(1). But at the same time, it noted it might have reason to “overrule” this approach and apply the “zone of danger” standard – which it characterized as its “typical exposure analysis.”

The Court of Appeal concluded that under either standard, the Board’s finding that employees were exposed to dusts containing Coccidioides lacks evidentiary support.

“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 that the worksite was in fact a zone of danger.”