BARRETT, Circuit Judge.
The Secretary of Labor (Secretary) petitions for review of an order of the Occupational Safety and Health Review Commission (Commission), which vacated an administrative law judge's decision that Kennecott Copper Company (Kennecott) had violated certain OSHA regulations. In reversing the decision of the administrative law judge, a divided Commission found that Kennecott had not failed to comply with occupational health and safety standards promulgated by the Secretary. Jurisdiction for review is derived from 29 U.S.C. § 660(b) of the Occupational Safety and Health Act (the Act), 29 U.S.C. § 651, et seq.
The facts are basically undisputed. Kennecott, a large mineral mining and processing concern, employs some 1200 persons at its Magna, Utah, smelting plant. In addition to smelting copper ore at its Magna plant, Kennecott captures the fumes produced in the smelting process and, by passing them through "mist treaters," produces sulphuric acid. The "mist treaters," which are large cylindrical vats, several stories high, encircled by protruding horizontal ribs, occasionally spring leaks. When such difficulties occur, skilled workmen, known as "leadburners," repair the leaks by standing on temporary scaffolds in order to reach the troublesome areas.
The citations issued against Kennecott grew out of an accident which occurred at the Magna plant in November of 1974. Nick Laboa, a highly skilled and experienced "leadburner," constructed a makeshift scaffold to reach a leak 10 to 11 feet above the ground. He took a six-foot long wooden plank with cleats in both ends and hooked it onto an angle-iron bracket attached to the inside of one of the "mist treaters." There were no guard rails or toeboards on this scaffold and he did not use a ladder in order to gain access to the scaffold. While either working on the scaffold or ascending to it, he fell.
After a routine investigation of the accident by a representative of the Secretary, Kennecott was cited for failing to comply with OSHA regulations relating to scaffolds:
Further, Kennecott was cited for not providing a ladder for Laboa to use in gaining access to the scaffold:
Kennecott filed notice of intent to contest the citations and proposed penalty. Following a hearing, the administrative law judge found that Kennecott had violated the Act by failing to comply with occupational safety and health standards. He fined Kennecott $350. The judge specifically found that standards requiring guardrails on scaffolds had been properly promulgated and that Kennecott should have required the use of access ladders when its employees were ascending to scaffolds.
Kennecott appealed to the Commission, which reversed the judge's decision. In exonerating Kennecott, the Commission ruled that Kennecott had not violated the regulation requiring the use of guardrails on scaffolds because the regulation had been improperly promulgated and was, therefore, not binding on Kennecott. The Commission also found that Kennecott had not violated the regulation dealing with providing access ladders.
In petitioning for review, the Secretary contends that: (1) the Commission erroneously declared that the regulation dealing with guardrails was unenforceable because of improper promulgation and (2) the Commission erred in concluding that Kennecott had satisfied its OSHA obligations by providing its employees scaffold access ladders without requiring their use.
The Act was passed in 1970 to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions."
After the two year period allowed for promulgation of these interim standards any new standards or modification or revocation of standards could be enacted only by following the formal rulemaking procedure outlined in the Act.
The first citation charged Kennecott with failing to comply with a standard mandating the use of guardrails and toeboards in scaffolds:
This regulation was promulgated shortly after passage of the Act. Accordingly, the Secretary was not required to follow the Act's rulemaking procedures.
In promulgating this standard the Secretary changed the language concerning guardrails on scaffolds so that it assumed a mandatory, rather than advisory, character:
It is the Secretary's adoption of the regulation by use of the word shall rather than the word should which poses the problem presented here. We must determine whether this usage constitutes such a substantial change that the regulation is not to be considered as a national consensus standard.
The Secretary contends that the change from should to shall is not significant, in that it is simply a pro forma change, having no substantive effect on the regulation. The Secretary points to the statute which requires an employer to follow health and safety standards promulgated by the Secretary:
Because of the mandatory nature of the standards under the Act, the Secretary asserts that the substitution of mandatory for advisory language in the adoption of the guardrails and toeboards interim standards was valid. The Secretary argues that if the standards are to be complied with, it makes no difference whether the actual language is advisory or mandatory.
Employers are, of course, required to comply with standards properly established by the Secretary. The Act accords its special interim treatment exclusively to "any national consensus standard and any established Federal standard."
We hold that the Secretary did not comply with the statute by reason of his failure to adopt the ANSI standard verbatim or by failure to follow the appropriate due process procedure. The promulgation
The Commission, in a decision which posed the same issue as that before us here, articulated the view that only standards which are national consensus standards are valid. Secretary v. Oberhelman-Ritter Foundry, Inc., OSAHRC Docket No. 1572 (July 31, 1973).
Further, we observe that the Secretary has recognized that only mandatory standards should be seen as national consensus standards:
We hold that the Secretary improperly promulgated the standard dealing with mandatory guardrails. We affirm the decision of the Commission that Kennecott could not be held to be in violation of an unenforceable standard.
Kennecott was also charged with violating an OSHA standard which required that when workers were on scaffolds, "An access ladder or equivalent safe access shall be provided."
The Secretary contends that this interpretation is incorrect because it is in derogation of the underlying purpose of the Act. The Secretary maintains that the Commission erred in finding that Kennecott had complied with this regulation by simply providing its employees scaffold access ladders without requiring that they use them.
There is undisputed testimony that ladders were available to Kennecott's employees. It was also shown that some of the "leadburners" did not use them when ascending to their scaffolds and that Kennecott did not insist that such workers use the ladders for access to the scaffolds.
We hold that the Secretary's interpretation of the regulation is erroneous. Kennecott did comply with the regulation by providing ladders. It was not the purpose of the Act to make an employer the insurer of his employees' safety. Dunlop v. Rockwell, International, 540 F.2d 1283 (6th Cir. 1976); Brennan v. OSAHRC, 511 F.2d 1139 (9th Cir. 1975). The ultimate aim of the act was not to prevent all accidents, but to provide American employees with safe and healthful working conditions "so far as possible."
We do not agree that the Secretary may read "shall be provided" to mean
If the Secretary had determined to require that employees use ladders, he could have done so only by complying with the rulemaking procedure outlined in the Act. He did not do so. Accordingly, Kennecott was not required to assume the burden of guessing what the Secretary intended plain and unambiguous words employed in the safety regulations to mean. This is especially true when violation of a regulation subjects one to criminal or civil sanctions. A regulation cannot be construed to mean what an agency intended but did not adequately express. United States v. Ray, 488 F.2d 15 (10th Cir. 1973); Diamond Roofing Co. v. OSAHRC, 528 F.2d 645 (5th Cir. 1976). If the Secretary were to be permitted to interpret regulations by employing the unusual meaning of words, employers would be deprived of fair notice of that which is expected of them in violation of their due process rights. Brennan v. OSAHRC, 505 F.2d 869 (10th Cir. 1974). In Diamond Roofing, supra, this concern was succinctly expressed:
Kennecott did not violate the regulation. We affirm the Commission's decision. The relief prayed for is denied. We direct enforcement of the Commission Order.