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Interpretation of Vague Regulation Must Be Made Known or There Is Failure of Notice
Description Appeals court vacated a citation issued by OSHA to a plant operator. The regulation the operator violated was vague. There was an Interpretive Letter that clarified the regulation, but the operator had no notice of the interpretation so could not be held liable for violating the regulation.
Topic Administrative Law
Key Words Regulation; Interpretation; Notice
C A S E   S U M M A R Y
Facts Beaver runs a plant that has a 140-foot-tall smoke stack with a steel ladder on the side. Beaver received a citation for violating an OSHA standard that states: "Every ladderway floor opening or platform shall be guarded by a standard railing with standard toeboard on all exposed sides except at entrance to opening), with the passage through the railing either provided with a swinging gate or so offset that a person cannot walk directly into the opening." Beaver challenged the regulation as vague. The ALJ agreed that the rule was vague and confusing as it applied to the entry to the ladder in question and vacated the citation. The OSHA Commission reversed, upholding the citation, noting that the regulation was clarified by an OSHA Interpretive Letter. Beaver appealed.
Decision Vacated and remanded. An agency's construction of its own regulations is entitled to substantial deference and should be given full effect, if it is reasonable; that is if it sensibly conforms to the purpose and wording of the regulation. The OSHA Interpretive Letter is reasonable in its interpretation of the regulation, but unless there is evidence of knowledge of a hazardous condition, OSHA must show that the employer had actual or constructive notice of the Interpretive Letter, otherwise there is not fair notice. The ALJ's findings were correct; the regulation is vague. The interpretation is reasonable, but Beaver did not have notice of the interpretation, so the citation is vacated.
Citation Beaver Plant Operations, Inc. v. Herman, 223 F.3d 25 (1st Cir., 2000)

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