July 20, 2020

Representative Kim Wallan

House District 6
Oregon House of Representatives
Sent via e-mail to rep.kimwallan@oregonlegislature.gov.
Dear Representative Wallan:
I am writing in partial response to your inquiry and request under the Public Records Act. We will
provide the responsive documents. But I also wanted to reply to the suggestion that certain documents
that do not in fact, exist must exist for us to have adopted the Emphasis Program addressing potential
COVID-19 exposures in food processing. – the responsive documents are being assembled and will be
sent to you shortly. That appears to reflect a misunderstanding of the existing requirements to
implement an emphasis program – a misunderstanding that was also reflected in several industry
stakeholder comments on the directive when it was in draft form.
Program Directive A-301 itself, which implements the emphasis program, was issued on June 26, 2020,
can be found at https://osha.oregon.gov/OSHARules/pd/pd-301.pdf and includes links to the primary
reference materials on which it was based.
Your letter includes the following statement describing your understanding of Oregon OSHA’s general
obligations when developing an emphasis program under the Oregon Safe Employment Act:
In the past, it is my understanding that these programs target the most hazardous industries
identified by state and national data. I understand OR-OSHA rule requires that state data come from
the Department of Consumer and Business Services claim files, the Bureau of Labor Statistics
Occupational Injury and Illness Survey, and the Oregon Employment Department. In addition to the
data collected by these departments, the rules must also be based on established knowledge of
recognized hazards.
That is not what the rule in question requires, and it certainly has not been Oregon OSHA’s past practice
to read the rule that way. Indeed, only three of our current emphasis programs would comply with the
mistaken requirement to include all four of the listed data sources in establishing any emphasis
program. Because the question was raised by certain stakeholders when reviewing drafts of the
directive, the final directive includes a discussion of the applicable rule in Appendix B, #7:
Oregon OSHA’s understanding that Oregon OSHA’s rule on the subject (OAR 437-001-0057(9)) does not
require each emphasis program to involve all four of the listed sources of information is not a new
understanding. A brief review of the existing emphasis programs (without even considering those that were
previously adopted but are no longer in place) confirms that historic understanding. Of the 17 current
emphasis programs described in an Oregon OSHA Program Directive (both those initiated by Oregon and those
based on a federal OSHA emphasis program), only three appear to rely upon all the listed information sources.
The following 14 existing emphasis programs appear to rely upon three or fewer of the sources listed in the
rule:
PD A-174 (issued January 2, 1993 and revised August 11, 2011): Field Sanitation
PD A-177 (issued April 5, 1993 and revised September 12, 2018): Process Safety Management of Highly
Hazardous Chemicals
Michael Wood to Rep. Kim Wallan re: Food Processing Emphasis Program
July 20, 2020
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PD A-235 (issued March 30, 2000 and revised February 28, 2018): Pesticides
PD A-239 (issued July 19, 2000 and revised January 29, 2003): Falls In Construction
PD A-253 (issued January 13, 2003 and revised October 17, 2008): Silicosis
PD A-256 (issued May 1, 2006 and revised January 20, 2017): Occupational Exposures to Isocyanates
PD A-265 (issued February 21, 2008 and revised January 3, 2019): Trenching and Excavation
PD A-273 (issued February 14, 2009 and revised June 29, 2017): Lead in general industry and construction
PD A-275 (issued March 23, 2010 and revised October 18, 2012): Diacetyl (Flavoring Chemicals)
PD A-277 (issued December 9, 2010 and revised February 22, 2019): Severe Violator Enforcement Program
(SVEP)
PD A-278 (issued August 18, 2010): Hexavalent Chromium
PD A-284 (issued December 15, 2011 and revised November 27, 2017): Hospitals and nursing and residential
care facilities
PD A-298 (issued October 28, 2016 and revised June 19, 2019): Tethered Logging
PD A-299 (issued July 11, 2017 and revised June 6, 2019): Preventing Heat Related Illness
Although we were surprised when stakeholders raised this concern and based it upon their reading of
Oregon OSHA’s rule on the subject, the confusion apparently arises from the fact that in the rule the
four listed data sources are separated by an “and” rather than an “or.” However, in the context of the
rule as a whole (even apart from our historic practices), as well as the nature of the data sources itself, it
is clear that our reading of the rule is the correct one (even if Oregon OSHA’s interpretation of its own
rule, to the degree there is ambiguity, were not entitled to deference in applying that rule).
The rule in question reads as follows:
(9) Emphasis Inspections – An inspection may be made if the place of employment is included in a national or
local safety or health emphasis program. Emphasis programs are established by identifying the most
hazardous industries and processes through information obtained from the Department of Consumer and
Business Services claim files, the Bureau of Labor Statistics Occupational Injury and Illness Survey, the Oregon
Employment Department, and knowledge of recognized hazards associated with certain processes. Program
directives will be issued to establish and describe emphasis programs and the written neutral administrative
standards that will be used to schedule the inspections.
The English language does not always provide the level of clarity one might wish, particularly when it
comes to the use of conjunctions. While one could argue that the correct understanding of the rule (that
every emphasis program must be based upon at least one of the listed sources) could be stated clearly
simply by replacing the word “and” in the second sentence with the word “or,” such a change would not
in fact preclude alternate interpretations with an equally perverse outcome. If a sentence indicates that
something must be this or that, the most literal reading of that statement is that it would need to be
one or the other, but not both. With four items on the emphasis program list, separated by “or,” the
argument could be made that each directive had to be based on one, and only one, of the listed data
sources, and could not be based upon two or more.
While it is possible to rewrite the paragraph and the particular sentence in a way that eliminates any
ambiguity (and Oregon OSHA will no doubt do so when the rule provisions are open for amendment due
to other reasons), the necessary modification is not as straightforward as simply replacing “and” with
“or.” Therefore, the fact that the sentence uses “and” instead of “or” cannot be viewed as
determinative.
However, other language in the rule supports Oregon OSHA’s understanding of it. The subject of the
same sentence is not “each emphasis program” or “every emphasis program” or “any emphasis
program,” nor is it even the simple singular “emphasis program.” The subject is the plural “emphasis
programs,” and when we are speaking of them as a collective, it is indeed true that – when taken as a
Michael Wood to Rep. Kim Wallan re: Food Processing Emphasis Program
July 20, 2020
Page 3
group – “emphasis programs are established by identifying the most hazardous industries through
information obtained” from all of the listed data sources. While an individual emphasis program may not
(and typically does not) rely upon every data source, emphasis programs as a group do indeed rely upon
all four.
Further, when one looks at the individual data sources themselves, it would obviously be a perverse
outcome to require that each of them be used in crafting each and every individual emphasis program.
To take perhaps the most obvious example, the Employment Department is relied upon only when it is
necessary to use that data to identify work locations and employer size. One of Oregon OSHA’s most
longstanding and certainly its most frequently used emphasis program – falls in construction – does not
rely upon data from the Employment Department. It would be a similarly perverse result to require
emphasis programs addressing cancer and other chronic disease risks to rely upon essentially non-
existent workers compensation data about such risks, in spite of their well-documented and widely
recognized nature. And it would cripple Oregon OSHA’s ability to address emerging hazards if the rule
were read to require that any emphasis program must be based on the United States Bureau of Labor
Statistics Injury & Illness Survey, which is published well after each year’s experience has taken place. If
COVID-19 were to have an effect on that data, as it indeed might (although it would likely be muted by
the nature of the hazards involved), it could not possibly show up in the published reports sooner than
December of 2021 (the currently available reports address calendar year 2018).
For these reasons, Oregon OSHA is confident that our current and past understanding of the rule is
accurate – and, in spite of the number of emphasis programs that do not meet the test advocated by the
industry in the present case, no suggestion to the contrary has been made before now, to the best of
our collective recollection.
Finally, there is a second implicit suggestion in the data requests you made that should also be
addressed. The reference to identifying the “most hazardous industries and processes” should not be
read to suggest that any emphasis program is intended to address the single most hazardous industry or
process in the state. Indeed, if that were the case, Oregon OSHA would be able to have only one
emphasis program at a time (and it would arguably need to suspect its regular inspection scheduling
protocols for the duration of the emphasis program). The phrase alludes to the statutory expectation
found in ORS 654.003(4) (and elaborated on in ORS 654.035(1)(d)) that one of Oregon OSHA’s purposes
is to “predominantly prioritize inspections of places of employment to first focus enforcement activities
upon places of employment that the director reasonably believes to be the most unsafe.” Toward that
end, an emphasis program must be based on Oregon OSHA’s reasonable belief that the particular
industry or activity is among those that are “the most unsafe,” not that it represent the single most
unsafe industry or activity.
With this background, I have addressed your information requests below:
1. Documentation of COVID-19 specific data collected and analyzed from the Department of Consumer
and Business Services claim files, the Bureau of Labor Statistics Occupational Injury and Illness
Survey, and the Oregon Employment Department, as required under rule.
There are no such documents. Oregon OSHA did not make such an analysis as part of its determination
that the potential for COVID-19 exposures in Food Processing facilities represents a recognized
workplace health hazard. As discussed above, the rule in question does not in fact include such a
requirement.
2. Documentation of the data OR-OSHA relied on to determine that agricultural facilities and food
processing facilities are the “most hazardous industries” thus warranting an Emphasis Program.
Michael Wood to Rep. Kim Wallan re: Food Processing Emphasis Program
July 20, 2020
Page 4
We are in the process of assembling the data and other materials and distinguishing between those
materials that were available on or before June 26 and those developed subsequently. Because the
development of a directive is not rulemaking, we do not maintain the sort of record of references that
we would in the latter case. We expect to completely fulfill your public records request by July 24.
3. Documentation of the differential between the rate of testing of agricultural and food processing
employees compared to employees in other industries.
We do not have data systematically comparing the testing rate between different industries, on either a
national or state level. While the Oregon Health Authority may have the necessary data (although they
do not have immediate access to the employment data that would be needed to make a comparison
regarding the rates), we are unaware of any such systematic analysis on either the state or national
level.
4. Documentation of whether OR-OSHA characterizes the level of testing of agricultural and food
processing employees as less, proportionate, or greater than other industries in the state.
There are no such documents. However, it is our anecdotal understanding that the relative level of
testing in food processing exceeds most (although not all) other industries in the state. It is also our
understanding that this higher level of testing is based, at least in part, on recognition of the same
potential COVID-19 exposures that motivated Oregon OSHA’s adoption of the emphasis program. Finally
(although you did not raise this question) it is also our understanding that the level of testing varies
significantly between sites in the food processing industry, making identified “outbreaks” somewhat
unreliable as the basis for enforcement activity on Oregon OSHA’s part.
5. Documentation showing that OR-OSHA consulted with appropriate state and federal public health
agencies to accurately understand COVID-19 exposure risks in agricultural and food processing
facilities before it enacted the Emphasis Program.
To the degree that this request covers documents not already addressed by #2 above, there are no
additional documents.
6. My understanding is that the Program has already been put into effect. Please provide
documentation of the process you utilized to avoid the usual public rulemaking process.
Because Oregon OSHA did not “avoid the usual public rulemaking process,” there is no such
documentation. Although there are rare exceptions (agriculture labor housing), most emphasis
programs are adopted outside the rulemaking process because the creation of a policy directive and the
implementation of such an emphasis program does not involve rulemaking.

Oregon OSHA’s public records coordinator, Michele Houser, will provide the documents we have
identified in relation to #2 shortly.
Sincerely,
Michael Wood
Michael Wood, Administrator
Oregon OSHA
Department of Consumer & Business Services
(503)947-7400 (office)
(971)707-0996 (mobile voice and text)