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Oregon Judicial Department Appellate Court Opinions

FILED: November 8, 2006 IN THE COURT OF APPEALS OF THE STATE OF OREGON VICKERS/NELSON & ASSOCIATES, CONSTRUCTION PROGRAM MANAGEMENT, INC., Petitioner, v. ENVIRONMENTAL QUALITY COMMISSION, Respondent. AQ/AB-NWR-02-181; A126168 Judicial Review from Environmental Quality Commission. Argued and submitted March 10, 2006. David P. Meyer argued the cause for petitioner. With him on the briefs was David P. Meyer, P.C. Judy Carol Lucas, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General. Before Edmonds, Presiding Judge, and Linder and Wollheim, Judges. EDMONDS, P. J. Affirmed. EDMONDS, P. J. Petitioner Vickers/Nelson & Associates, Construction Program Management, Inc. (Vickers/Nelson) seeks review of a final order of the Environmental Quality Commission (the commission) that assessed a civil penalty against it under ORS 468A.715(1) for allowing an unlicensed contractor to perform asbestos abatement work at an elementary school. Vickers/Nelson contends that the Department of Environmental Quality (DEQ) rule implementing ORS 468A.715 (OAR 340-248-0010(33)) exceeds DEQ's statutory authority and that the imposition of a penalty based on that rule was error. Vickers/Nelson also asserts that the commission erred in excluding certain evidence that was offered at the contested case hearing. For the reasons that follow, we affirm. On judicial review, Vickers/Nelson does not challenge the commission's factual findings. (1) Accordingly, we take the following facts from the commission's final order. Vickers/Nelson is a project management company. In September 2001, Vickers/Nelson entered into a contract with Portland Public Schools (PPS) to provide project management services for the district's facility capital improvement program. The contract included renovation work at James John Elementary School. That renovation work involved removing and replacing sheet vinyl from the floor of the boys restroom in a modular classroom building. As part of its agreement with PPS, Vickers/Nelson was designated an "owner's representative" for the

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Oregon Judicial Department Appellate Court Opinions

school renovation project. PPS and Vickers/Nelson understood this to mean that Vickers/Nelson would act as an intermediary between PPS and the contractors hired to do renovation work. Questions from contractors were directed at Vickers/Nelson, and Vickers/Nelson would then communicate with PPS and respond to the contractors. PPS retained ultimate authority regarding the budget, scope of the project, and final scheduling issues. One of Vickers/Nelson's responsibilities as owner representative was to solicit bids from qualified contractors. The invitation for bids was printed on Vickers/Nelson letterhead and explained that the bids should be returned to Vickers/Nelson. Following the bid process, PPS entered into a contract with Cedar Mill Construction Company (Cedar Mill). Cedar Mill, in turn, hired Addison Interiors (Addison) to remove the flooring in the boys restroom. Ultimately, Addison removed the flooring, despite concerns that the floor contained asbestos. When those concerns were confirmed through testing, the environmental coordinator for PPS contacted DEQ to report a potential asbestos problem at the school. After visiting the site, DEQ found that Addison had not properly packaged or labeled the asbestos-containing material that had been removed. DEQ then checked its databases and determined that Addison was not a licensed asbestos abatement contractor. Subsequently, DEQ issued a Notice of Violation and Assessment of Civil Penalty in the amount of $7,200 against Vickers/Nelson for violation of ORS 468A.715(1) and OAR 340-248-0110(2). ORS 468A.715(1) provides that "an owner or operator of a facility containing asbestos shall require only licensed contractors to perform asbestos abatement projects." OAR 340-248-0110(2), which is among the administrative rules implementing Oregon's asbestos abatement project statutes, addresses the same subject matter as 468A.715(1). OAR 340-248-0110(2) provides that "[a]n owner or operator of a facility may not allow any persons other than those employees of the facility owner or operator who are appropriately certified or a licensed asbestos abatement contractor to perform an asbestos abatement project in or on that facility." Vickers/Nelson requested a contested case hearing, and a hearing was held before an administrative law judge (ALJ). The ALJ concluded that Vickers/Nelson was in fact "an owner or operator" of a facility containing asbestos. The ALJ relied on the definition of "owner or operator" found in DEQ's implementing rules: "'Owner or operator' means any person who owns, leases, operates, controls or supervises a facility being demolished or renovated or any person who owns, leases, operates, controls, or supervises the demolition or renovation operation, or both." OAR 340-248-0010(33). The promulgation of that definition, the ALJ concluded, was within DEQ's authority, and the evidence established that Vickers/Nelson supervised and controlled the renovation project at the school. The ALJ also made two evidentiary rulings that are relevant to our review. First, the ALJ ruled that references to the federal Asbestos Hazards Emergency Response Act (AHERA), 15 USC

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