RENDERED: OCTOBER 11, 2024; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-0649-MR
COMMISSIONER OF THE DEPARTMENT OF WORKPLACE STANDARDS, EDUCATION AND LABOR CABINET APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 22-CI-00155
KALKREUTH ROOFING AND SHEET METAL, INC.; AND KENTUCKY OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ECKERLE, A. JONES, AND TAYLOR, JUDGES.
ECKERLE, JUDGE: The Franklin Circuit Court affirmed a Final Decision and
Order of Appellee, the Kentucky Occupational Safety and Health Review
Commission (“the Commission”), dismissing a citation and penalty against Appellee, Kalkreuth Roofing and Sheet Metal, Inc. (“Kalkreuth”). Appellant, the
Commissioner of the Department of Workplace Standards, Education, and Labor
Cabinet (“the Cabinet”), had issued the citation and recommended a penalty. It
now seeks review of the dismissal and urges reinstatement of its charges.
The underlying citation alleged that Kalkreuth violated 29 Code of
Federal Regulation (“C.F.R.”) § 1926.501(b)(10) when it allowed its employees to
work within a warning line system on a flat or low-sloped roof without any
secondary fall protection. However, the Commission and the Circuit Court
interpreted the regulation as requiring secondary protection only if the work was
being performed outside the warning line requiring dismissal of the citation. The
Cabinet asks us to reverse the Circuit Court contending the regulation requires the
use of secondary fall protection whenever a warning line system is employed
regardless of where the work is being performed in relation to the warning line.
We conclude that the regulation and definition can be read together
congruently, giving meaning to each, as required in statutory interpretation. This
reading supports the interpretation offered by the Commission, Kalkreuth, the
national trade organization, the underlying citation, and the practice that has been
in place in the industry for many years. The Cabinet’s recent conclusion, finding
an ambiguity in the definition section of the regulation, unnecessarily strains the
principles controlling the review and legal interpretations of the terms used in
-2- regulations. It also unilaterally attempts to overturn long-standing and well-
established practices without any showing that those practices have caused any
harm or danger. Hence, we affirm the Circuit Court’s Order upholding the
Commission’s decision to dismiss the Cabinet’s citation against Kalkreuth.
I. FACTUAL AND PROCEDURAL HISTORY
In 2018, Kalkreuth was performing roofing work on the Kentucky
International Convention Center in Louisville, Jefferson County. During a routine
investigation, the Cabinet noticed a Kalkreuth employee working on a flat or low-
sloped, large roof inside a “warning line system” – an area marked by a warning
barrier over six feet from the roof’s edge. The language used in the definition of
the terms used throughout the roofing industry and the regulations governing it are
central to the issues before us. Undisputedly, all employees were working within
the boundary of the warning line, and they used this demarcation line as the sole
method of fall protection without any supplementation.
On November 28, 2018, the Cabinet issued a citation to Kalkreuth for
one violation of 29 C.F.R. § 1926.501(b)(10), for failing to use a secondary fall-
protection system. This citation carried a $2,000.00 penalty. Kalkreuth contested
the citation, and the Cabinet filed a Complaint with the Commission. The Cabinet
took the position, apparently for the first time, that the regulation required
Kalkreuth’s employees to use a supplemental fall-protection measure when
-3- working within a warning line system on a low-slope or flat roof. Kalkreuth
countered that a July 23, 1996, advisory letter (“the Ellis letter”),1 and several
advisory letters issued thereafter, interpreted the regulation differently and required
additional safety measures only when workers went beyond the warning line
system.
On September 13, 2021, the Commission’s Hearing Officer (the
“Officer”) issued Findings of Fact, Conclusions of Law, and a Recommended
Order upholding the Cabinet’s citation. The Officer concluded that the language of
the regulation and definition required Kalkreuth’s employees to use supplemental
safety measures in addition to the warning line system, whether within or outside
of it, when working on a low-sloping or flat roof. However, the Officer also found
that Kalkreuth had relied in good faith on the Ellis letter. Thus, the Officer found a
violation, but recommended that no penalty be imposed.
Both Kalkreuth and the Cabinet submitted countervailing petitions
seeking review. On February 2, 2022, the Commission issued a final Decision and
Order dismissing both the citation and the civil penalty. The Commission
concluded that the Cabinet failed to meet its burden of proving that Kalkreuth
1 The Ellis letter was written by Russell B. Swanson, from the Directorate of Construction- Occupational Safety and Health Administration (“OSHA”) – Office of Construction Standards and Compliance Assistance, in response to an inquiry from Dr. J. Nigel Ellis of Dynamic Scientific Controls regarding several interpretations of OSHA’s standards regarding fall protection.
-4- violated the standard set forth in the regulation. The Commission further
concluded that the Cabinet failed to prove that Kalkreuth’s actions exposed its
employees to a fall hazard.
The Cabinet then appealed the Commission’s Decision and Order to
the Franklin Circuit Court under Kentucky Revised Statutes (“KRS”) 13B.140 and
338.091. In an Opinion and Order issued on May 8, 2023, the Circuit Court
affirmed the Commission. The Circuit Court concluded that the regulation
required supplemental fall protection in addition to the warning line system only
when workers went beyond that line. The Cabinet now appeals to this Court.
Additional facts will be set forth below as necessary.
II. STANDARD OF REVIEW
As an initial matter, we note that there has been a recent change in law
on an issue that has tangential impact on this case. Kentucky has generally
adhered to the doctrine of “Chevron deference,” first enunciated by the United
States Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Under this
doctrine, courts may defer to an agency’s interpretation of an ambiguous statute or
regulation if it “is based on a permissible construction of the statute.” Id. at 843,
104 S. Ct. at 8782. But following briefing in this case, the United States Supreme
Court abrogated the Chevron doctrine in Loper Bright Enterprises v. Raimondo,
-5- 144 S. Ct. 2244, 2254, 219 L. Ed. 2d 834 (U.S. Jun. 28, 2024).2 The Supreme
Court reinforced the principle that it is the function of the courts, not the agencies
whose actions the courts review, to decide all relevant questions of law and
interpret statutory provisions. Id. at 2266. Specifically, “Courts must exercise
their independent judgment in deciding whether an agency has acted within its
statutory authority. . . .” Id. at 2273.
Regardless of the recent opinion, Chevron deference or the
rescindment thereof has no real impact here. First, the doctrine would not apply to
the Cabinet’s decision. Among other things, the Commission has the express
authority to “hear and rule on appeals from citations, notifications, and variances
issued under” KRS Chapter 338. KRS 338.071. Thus, the Commission, not the
Cabinet, is designated as the primary arbiter. Kentucky Lab. Cabinet v. Graham,
43 S.W.3d 247, 252 (Ky. 2001), abrogated on other grounds by Hoskins v.
Maricle, 150 S.W.3d 1 (Ky. 2004). Indeed, the Commission serves as the
“ultimate decision-maker in occupational safety and health cases[.]” Sec’y, Lab.
Cabinet v. Boston Gear, Inc., a Div. of IMO Indus., Inc., 25 S.W.3d 130, 133 (Ky.
2000). Thus, the Commission does not have to defer to the Cabinet; and, indeed
2 As the decision was handed down after briefing in this case, this Court allowed the parties to tender supplemental briefing on the issue and to address it at oral argument.
-6- neither the Circuit Court nor the Commission gave any deference to the Cabinet’s
interpretation of the regulation as finding Kalkreuth in violation.
Furthermore, the Kentucky Supreme Court has also recognized that
the courts have the ultimate responsibility in matters of statutory construction, and
a reviewing court is not bound by an administrative body’s interpretation of a
statute. Board of Educ. of Fayette County v. Hurley-Richards, 396 S.W.3d 879,
885-86 (Ky. 2013) (citing Delta Air Lines, Inc. v. Commonwealth, Revenue
Cabinet, 689 S.W.2d 14, 20 (Ky. 1985)). On issues of law, courts are “authorized
to review . . . on a de novo basis.” Aubrey v. Office of Attorney General, 994
S.W.2d 516, 519 (Ky. App. 1998). An agency’s interpretation is only valid if it
“complies with the actual language of the regulation.” Comprehensive Home
Health Servs., Inc. v. Pro. Home Health Care Agency, Inc., 434 S.W.3d 433, 442
(Ky. 2013) (quoting Hagan v. Farris, 807 S.W.2d 488, 490 (Ky. 1991)).
III. INTERPRETING THE REGULATION AND THE DEFINITION
The legal regulation that is the subject of this appeal, 29 C.F.R. §
1926.501(b)(10), was adopted in 803 Kentucky Administrative Regulation
(“KAR”) § 2:412(2), and provides as follows:
Roofing work on Low-slope [sic] roofs. Except as otherwise provided in paragraph (b) of this section, each employee engaged in roofing activities on low-slope [sic] roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, personal fall
-7- arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line system and personal fall arrest system, or warning line system and safety monitoring system.
By its clear and unambiguous terms, the language of the regulation provides three
types of fall-protection systems: guardrails, safety nets, or personal fall arrest
systems. It also provides for supplemental protection with a warning line system
used in conjunction with any of these three protections, as well as with a fourth
type of safety monitoring system. The three specified fall protections alone do not
require the use of a supplemental warning line system. The use of a warning line
system only appears in the regulation in conjunction with the three, or four, other
mechanisms. Nowhere does this regulation state that a warning line system
coupled with any of the additional three or four protections is required within the
warning line system. And the regulation only applies to flat or low-sloping roofs,
where the danger is less than a steep-sloping roof.
The definition of “warning line system” as set out in 29 C.F.R. §
1926.500(b), further clarifies as follows:
Warning line system means a barrier erected on a roof to warn employees that they are approaching an unprotected roof side or edge, and which designates an area in which roofing work may take place without the use of guardrail, body belt, or safety net systems to protect employees in the area.
(Emphasis added.)
-8- The Ellis letter and its progeny specifically expound upon the
regulation and definition to note that the warning line system operates on its own
to protect those workers within its perimeter by establishing a barrier to prevent
them from stepping outside of it closer to the edge of the roof. When work needed
to be performed outside the warning line, supplemental protection – in the form of
the three or four mechanisms listed above in the regulation – is required. Thus, the
Ellis letter and progeny harmonized and elucidated the regulatory language and the
definition.
The Commission agrees with this non-binding advice, concluding that
the regulation unambiguously permitted Kalkreuth to use a warning line system
alone as fall protection when its workers stayed within the line’s boundary.
However, when workers ventured beyond the line on a low-slope or flat roof, a
supplemental fall-protection method was needed. The National Roofing
Contractors’ Association, which filed an Amicus Curiae brief in this case with
leave of Court, endorses this viewpoint.
The Commission notes that the regulation explicitly affords the
employer the right to select which of the seven, delineated methods that it will use
to obtain compliance. The Commission agrees with the Cabinet that the regulation
unambiguously mandates supplemental fall protection for the four methods out of
seven that use a warning line system – but only where workers venture beyond the
-9- line. The Commission believes, however, that the Cabinet’s interpretation would
cause the regulation to contradict its concomitant definition by adding to the
narrow terms of the regulation to make it mandate a second type of fall protection
even when employees are working within the warning line system. In part because
this reading would make the warning line entirely superfluous, the Commission
thus rendered a decision stating that a guardrail, safety net, personal fall arrest
system, or safety monitoring system are not required unless a worker moves
outside the warning line system. Because Kalkreuth’s employees were only
working within the warning line system, the Commission found that the Cabinet
failed to prove a violation of the regulation.
In its opinion, the Circuit Court concluded that the Commission’s
interpretation of the regulation was reasonable and “not arbitrary.” The Circuit
Court also pointed out that the Commission’s interpretation is supported by
OSHA’s Technical Manual, which provides that “[a]ny employee performing
roofing work between the warning line and the roof edge must be protected using
another form of fall protection.” 3 (Emphasis added.) While the Circuit Court
gave deference to the Commission’s interpretation of the regulation, it concluded
3 The language in the Technical Manual closely tracks to 29 C.F.R. § 1926.502(f)(3), which specifies that, “[n]o employee shall be allowed in the area between a roof edge and a warning line unless the employee is performing roofing work in that area.”
-10- that the Commission’s reading was most consistent with the entire regulatory
scheme.
As previously noted, this Court conducts a de novo review on matters
of law, including the initial question of ambiguity, giving no deference to another
body’s legal analysis. In interpreting the regulation, “the same rules apply that
would be applicable to statutory construction and interpretation.” Revenue
Cabinet, Commonwealth v. Gaba, 885 S.W.2d 706, 708 (Ky. App. 1994). The
most commonly-stated rule in statutory interpretation is that the plain meaning of
the statute controls. Lamb v. Holmes, 162 S.W.3d 902 (Ky. 2005). We adhere to
the plain-meaning rule “unless to do so would constitute an absurd result.”
Executive Branch Ethics Commission v. Stephens, 92 S.W.3d 69, 73 (Ky. 2002).
“In construing statutory provisions, it is presumed that the legislature did not
intend an absurd result.” Commonwealth, Cent. State Hosp. v. Gray, 880 S.W.2d
557, 559 (Ky. 1994). See also Brown-Forman Corp. v. Miller, 528 S.W.3d 886,
895 (Ky. 2017). “General principles of statutory construction hold that a court
must not be guided by a single sentence of a statute but must look to the provisions
of the whole statute and its object and policy.” Cnty. of Harlan v. Appalachian
Reg’l Healthcare, Inc., 85 S.W.3d 607, 611 (Ky. 2002). “No single word or
sentence is determinative, but the statute as a whole must be considered.” Id.
-11- The Cabinet states that 29 C.F.R. § 1926.501(b)(10) is not ambiguous
and plainly requires the use of a second type of fall protection anytime that a
warning line system is used. The Cabinet further maintains that the Commission
and the Circuit Court created the ambiguity only by reading this section in
conjunction with the codified definition of warning line system.
We disagree. While we give no deference to the Ellis letter in
reaching our conclusion, we note that it does have some relevance here. Under the
doctrine of contemporaneous construction, an agency’s interpretation of a statute
or regulation, once made and applied over a long period of time, cannot be
unilaterally revoked by the agency and without notice. Revenue Cabinet v.
Lazarus, Inc., 49 S.W.3d 172, 174 (Ky. 2001) (citing GTE v. Revenue Cabinet, 889
S.W.2d 788, 792 (Ky. 1994), superseded by statute on other grounds as recognized
in Miller v. Johnson Controls, Inc., 296 S.W.3d 392, 395 (Ky. 2009)). Thus, the
Ellis letter and its progeny, although not binding, may demonstrate a long-standing
interpretation of a regulation. The parties agree that the Commission’s
interpretation of the regulation is consistent with both state and federal
interpretations going back to at least 1995.
This case presents a matter of first impression on a novel theory
recently advanced by the Cabinet. After careful review, we hold that the regulation
of 29 C.F.R. § 1926.501(b)(10) is unambiguous. Thus, we owe no deference to
-12- any agency interpretation under Chevron or Loper. We disagree that the regulation
becomes somehow unclear when read in conjunction with the definition of warning
line system provided in the same section of the regulation.
At the outset, we must note that the intent of the regulation and
accompanying definition is abundantly clear. The provision of fall protection to
workers is paramount. And the safety systems at issue here only apply to flat or
low-sloping roofs where the more burdensome protections are not warranted. One
of the many types of fall protection is the warning line system, but it is not the sole
method available, and it is not always required. This point is beyond dispute.
Furthermore, the regulations and definitions are not new. And yet,
this is the first challenge of this nature. We could find no corresponding litigation
in the state and federal systems. It has not escaped our notice that this issue has
not occurred before anywhere in this highly regulated industry, which must operate
pursuant to clear standards that are uniformly enforced.
However, while we find the regulation and definition are not
ambiguous and do not conflict, it is obvious that they do not offer a model of
clarity. The definition specifically references a “guardrail, body belt, or safety net
system.” 29 C.F.R. § 1926.500(b). The regulation, however, references a
“guardrail” and a “safety net,” but it does not mention a “body belt,” and instead
-13- cites a “personal fall arrest” and a “safety monitoring system.” 29 C.F.R. §
1926.501(b)(10).4
Further compounding any obscurity, the regulation and definition of
warning line system both imply without clearly stating that the barrier alone is
sufficient within the line, and supplemental protection is only required beyond it.
The definition is not well-written, and it can be read in a manner to cause it to fail
to make inherent sense. Its terms reference an unprotected area and then
immediately say that work may take place without the use of safety systems.
But it would be absurd to read the definition to mean that supplemental protection
is not needed in the unprotected area. It would be much better if it read as follows
with added language in brackets:
Warning line system means a barrier erected on a roof to warn employees that they are approaching an unprotected roof side or edge[.] [The area within the barrier {leaving out “and” and “which”}] designates an area in which roofing work may take place without the use of guardrail, body belt, or safety net systems to protect employees in the area.
29 C.F.R. § 1926.500(b). However, even without the adding of clarifying
language, this meaning is clearly implied. The supplemental protections only
4 At oral argument, the Cabinet asserted that the definition of “warning line system” in 29 C.F.R. § 1926.500(b) is outmoded because, “[e]ffective January 1, 1998, body belts are not acceptable as part of a personal fall arrest system.” 29 C.F.R. § 1926.502(d). However, 29 C.F.R. § 1926.500(b) continues to include a definition of “body belt.” Furthermore, the use of a body belt is permissible in a positioning system device under 29 C.F.R. § 1926.502(e). Regardless, the Cabinet’s main point is that some form of supplementation is required, body belt or otherwise.
-14- make sense when they are required outside the line. If additional systems were
needed within the barrier, no warning line system would be needed. If a warning
line system is heeded within, then no supplemental protection would be warranted
because no one would be outside of it. Thus, while the definition and the
regulation are different, they are not mutually exclusive.
Similarly, the language in the regulation itself specifically provides
that four types of fall protection may be used without a warning line. When a
warning line is used, the supplemental protections are required. Again, by
necessary implication, those protections would only be needed outside the line. If
they were needed inside the line as well, then there would be no need or provision
for the warning line, because the other four methods are clearly and
unambiguously permitted to be used alone and without the line at all.
We are required to give statutory words their plain meaning. Any
finding that the second type of fall protection is required when employees are
working inside of the warning line barrier would be a strained interpretation that
would render the use of a warning line superfluous. And, it would compel us to
throw out the legislature’s definition entirely, which is inconsistent with the
mandated legal principle of giving effect to the language used. As Kalkreuth and
the Amicus Curiae brief note, the use of a warning line to delineate where
additional protections are needed closer to the edge of the roof reinforces the intent
-15- of the regulations – to ensure that employees working on a roof that is greater than
50 feet in length and more than six feet above ground are protected from falls. The
protection is necessarily greater outside the line where the risk of injury is higher.
Thus, we must conclude that the Circuit Court and the Commission did not err by
interpreting the regulation as not requiring supplemental protection for the work
performed by Kalkreuth’s employees inside the warning line.
IV. CONCLUSION
Accordingly, we affirm the Opinion and Order of the Franklin Circuit
Court dismissing the citation and penalty.
ALL CONCUR.
-16- BRIEFS FOR APPELLANT BRIEFS AND ORAL ARGUMENT KENTUCKY EDUCATION AND FOR APPELLEE KENTUCKY LABOR CABINET DEPARTMENT OCCUPATIONAL SAFETY AND OF WORKPLACE STANDARDS: HEALTH REVIEW COMMISSION:
John R. Rogers E.H. “Chip” Smith, IV Frankfort, Kentucky Frankfort, Kentucky
ORAL ARGUMENT FOR BRIEFS AND ORAL ARGUMENT APPELLANT: FOR APPELLEE KALKREUTH ROOFING AND SHEET METAL, Haley Kincer INC.: Frankfort, Kentucky Joyce Ann Merritt Lexington, Kentucky
BRIEF FOR AMICUS CURIAE NATIONAL ROOFING CONTRACTORS ASSOCIATION:
F. Laurens Brock Nashville, Tennessee
Trent H. Cotney Kyle C. Rea Carter J. Pope Tampa, Florida
-17-