“Docket No. 79-2553 SECRETARY OF LABOR,Complainant,v.DUN-PAR ENGINEEREDFORM COMPANYRespondent.OSHRC DOCKET NO. 79-2553DECISIONBefore:\u00a0 BUCKLEY, Chairman, and AREY,Commissioner.AREY, Commissioner:This case is before the Commission for the second time, pursuant to a court of appealsremand order.\u00a0 Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135 (8th Cir.1988), rev’g, 12 BNA OSHC 1949, 1986-87 CCH OSHD ? 27,650 (No. 79-2553, 1986).\u00a0 In its first decision, the Commission vacated an OSHA citation alleging thatDun-Par violated the guardrail standard at 29 C.F.R. ? 1926.500(d)(1)[[1\/]].\u00a0 Itfound that erection of guardrails was infeasible and that the Secretary had failed to meether burden of proving that an alternative means of protection was feasible.The U. S. Court of Appeals for the Eighth Circuitheld that the Commission had improperly placed on the Secretary the burden of proving thefeasibility of alternative protection.\u00a0 The court held that an employer whodemonstrates that literal compliance with an OSHA standard is infeasible must also showthat other means of protecting its employees were unavailable.\u00a0 843 F.2d at 1136.\u00a0 The Commission must therefore determine whether Dun-Par made that showing.[[2\/]]The citation was based on Dun-Par’s failure toprotect its employees from perimeter fall hazards on the fifth and sixth floors of an11-story building under construction in Excelsior Springs, Missouri.\u00a0 Dun-Par was thesubcontractor at the worksite responsible for constructing, and later tearing down, thewooden forms into which concrete was poured to create the floors (\”decks\”) ofthe building.\u00a0 Construction had reached the sixth floor at the time of OSHA’sinspection.Employees were exposed to falling hazards whenerecting forms at the perimeter, and later when stripping them after the concrete deck hadcured.\u00a0 No fall protection devices were provided for these employees.\u00a0 TheSecretary did not challenge before the court of appeals the Commission’s finding thatguardrails would not have been feasible.\u00a0 Therefore, that finding will be followed inthis proceeding as the \”law of the case.\”\u00a0 See, e.g., Inre Progressive Farmers Ass’n, note 2 supra.The principal unresolved issue in this case iswhether Dun-Par could have taken alternative measures to protect its employees from thefalling hazards.\u00a0 Several possible alternatives to guardrails were discussed at thehearing, including perimeter cables, safety belts, catch platforms, and safety nets.\u00a0 Dun-Par argues that all those suggested alternatives were infeasible\u00a0 and thusunavailable.\u00a0 It also argues that it cannot be found in violation for failure to usecatch platforms or safety nets, because those methods had not been in issue in the case.\u00a0 However, the feasibility of catch platforms and safety nets was in issue, and theCommission now concludes that Dun-Par has failed to sustain its burden of proving thatthese methods would have been infeasible.[[3\/]]The factors that made guardrails and safety beltsinfeasible have no bearing in determining whether catch platforms or safety nets wouldhave been feasible.\u00a0 In essence, the need to perform work at the edges of the floorsand on the surfaces of the floors made guardrails infeasible, while the need for employeemobility made safety belts infeasible.\u00a0 However, there is no indication that catchplatforms or safety nets would have affected Dun-Par’s ability to perform its work.The evidence specifically directed to thefeasibility of catch platforms or safety nets may be summarized as follows.\u00a0 Inresponse to a question by Dun-Par’s counsel, the OSHA inspector testified that a catchplatform or a safety net could have protected its employees if guardrails could not havebeen used.\u00a0 He repeated that testimony in response to a specific question by OSHA’scounsel about how Dun-Par could have protected the perimeter of the fifth floor.\u00a0When asked by Dun-Par’s counsel how the employer could have provided a safety net,the witness testified that Dun-Par could have \”[p]ut outriggers out with a shore-upand [hung] nets on it. . . . You could do it from the fifth floor or the fourth floor . .. . It’s not uncommon.\”\u00a0 The record shows that, at the time of the allegedviolation, there already were outrigger steel beams extending several feet out from thefifth floor perimeter.Dun-Par presented no evidence that safety netswould have been infeasible or unavailable.\u00a0 Its president was asked whether safetynets could have been erected on the building, and responded that he did not know.\u00a0 Hehad never seen outrigger nets.Dun-Par also did not prove that employee catchplatforms would have been infeasible or unavailable.\u00a0 Prior to the inspection, thecompany had erected a materials catch platform that extended out from the fifth-floorperimeter.\u00a0 The platform was three or four feet wide, and about two to three times aslong.\u00a0 It was connected to a permanent part of the structure.\u00a0 Its purpose wasto catch materials as they were stripped and to prevent them from falling to the groundand endangering employees who were working at ground level.\u00a0 The existing materialscatch platform covered only a small part of the perimeter.\u00a0 It was not designed toprovide fall protection to employees on the fifth and sixth floors, and it was inadequatefor that purpose.\u00a0 However, its presence suggests that catch platforms specificallydesigned to prevent employees from falling to the ground would have been feasible. On this record, Dun-Par has not demonstrated theinfeasibility or unavailability of safety nets and catch platforms, and therefore has notestablished the defense of infeasibility of compliance.\u00a0 It should be emphasized thatthis conclusion is limited to this record and is based on Dun-Par’s failure to meet theburden of proof imposed on it by the appellate court.\u00a0 See supra note2.\u00a0 No opinion is intimated as to whether catch platforms and perimeter safety netsare feasible means of fall protection in building construction generally.\u00a0 Also, Ileave for another day the question of whether current Commission precedent is correct, orwhether the Eighth Circuit’s position should be adopted.\u00a0 Commission precedent stillplaces the burden on the Secretary of showing a feasible alternative means of protectionwhen literal compliance with a standard is infeasible.Although the Eighth Circuit has reversed theCommission on the burden of proof issue, there is no need to reopen the evidentiaryrecord.\u00a0 Contrary to Dun-Par’s assertions, the feasibility of alternative means ofprotection was an issue that was tried at the hearing in this case.The evidence discussed above shows that Dun-Parrecognized that the use of safety nets and catch platforms are alternative means ofprotection was at issue at the\u00a0 hearing.\u00a0 The OSHA inspector testified about allof the alternative fall protection devices discussed in this decision, in response toquestions by both Dun-Par’s counsel and the Secretary’s counsel.\u00a0 For example,Dun-Par’s counsel asked specific questions about how a safety net could have beenprovided.\u00a0 At the time of the hearing in this case, Commission precedent placed theburden on the employer to show the unavailability of alternative protection.\u00a0 Dun-Paracknowledged its awareness of that burden in its post-hearing brief to the judge.\u00a0The court’s decision does not place a greater burden of proof on Dun-Par than it hadat the time of the court’s decision had been issued before the case was tried.In sum, Dun-Par unsuccessfully attempted to rebuttestimony that was clearly submitted by the Secretary for the purpose of establishing thatsafety nets and employee catch platforms were feasible and useful alternatives toguardrails.\u00a0 Dun-Par had adequate notice that the feasibility of those protectivedevices was at issue.\u00a0 Cf., Lewis & Lambert Metal Contractors, Inc.,84 OSAHRC 45\/A2, 12 BNA OSHC 1026, 1031 1984-85 CCH OSHD ? 27,073, p. 34,900 (No.80-5295-S, 1984) (employer may not be found in violation for failure to use alternativemeans of protection not discussed at hearing).Dun-Par raised a second affirmative defense,which was not addressed in the Commission’s prior decision.\u00a0 Dun-Par argues that itshould not be found in violation because the general contractor was responsible forerection of guardrails under an agreement between the two employers.\u00a0 The Commissionhas permitted a limited defense for some subcontractors on multiple employer worksites insituations where the cited subcontractor neither created nor controlled the hazardouscondition.\u00a0 See Anning-Johnson Co., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193,1975-76 CCH OSHD ? 20,690 (No. 3694, 1976); Grossman Steel & Aluminum Corp.,76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ? 20,691 (No. 12775, 1976). \u00a0However, this defense is not available to Dun-Par in this case.\u00a0 As in a previouscase, \”Dun-Par itself created the hazard by participating in the erection of theopensided floor and leaving its edges unguarded.\”\u00a0 Dun-Par Engineered FormCo., 80 OSAHRC 14\/E6, 8 BNA OSHC 1044, 1049, 1980 CCH OSHD ? 24,238, p. 29,492 (No.16062, 1980), aff’d, 676 F.2d 1333, 1336 (10th Cir. 1982).\u00a0 Thus, Dun-Par wasresponsible for compliance with the standard \”[r]egardless of who had the contractualresponsibility for providing guardrails[.]\” Id.\u00a0 See Lauhoff Grain Co.,13 BNA OSHC 1084, 1089, 1986-87 CCH OSHD ? 27,814, p. 36,398 (No. 81-984, 1987) (employerthat creates hazard to which its own employees are exposed may not prevail under Anning-Johnsondefense).\u00a0 See also Bratton Corp. v. OSHRC, 590 F.2d 273 (8thCir. 1979); Marshall v. Knutson Construction Co., 566 F.2d 596, 599 (8th Cir. 1977)(approving principles of multi-employer worksite defense generally.)The Secretary has established all the otherelements necessary to prove a violation of section 1926.500(d)(1).\u00a0 As noted in theprevious Commission decision, it is undisputed that the standard applies to the perimeterform work and that Dun-Par did not comply with its terms.\u00a0 Also, there is no questionthat Dun-Par’s employees had access to the fall hazards and that Dun-Par knew about theconditions.\u00a0 12 BNA OSHC at 1952, 1986-87 CCH OSHD at p. 36,019.\u00a0 The remainingissues are the classification of the violation and an appropriate penalty.The violation was serious, as the judgefound.[[4\/]]\u00a0 The fall distance was about 38-46 feet.\u00a0 The judge assessed themaximum penalty for a serious violation — $1000.\u00a0 The basis for the judge’sassessment was as follows:[R]espondent is of moderate size, has an excellent history, and has an on-going safetyprogram involving both its supervisory and hourly workers, and maintains an experiencedwork force of carpenters.\u00a0 However mitigating these circumstances are, it is alsoclearly demonstrated that respondent has a stated reluctance to establish guardrails and astated history of exposing its employees to unguarded perimeters.\u00a0 Therefore, it isfelt that respondent’s posture regarding guardrails for its employees erecting orstripping out shores overcomes any consideration of mitigation. . . .The judge’s reasoning, and his decision to impose the maximum penalty, are not justifiedby the record.\u00a0 The evidence does not show stubborn resistance by Dun-Par to the useof guardrails or other fall protection devices.\u00a0 Its reluctance to build guardrailswas linked to its brief that they were infeasible and also the fact that contractualresponsibility for guardrails were shown to be infeasible during the phases ofconstruction when Dun-Par’s employees worked at the perimeter.\u00a0 As noted above (n.3), safety belts also were infeasible, and there was substantial evidence that anothercommon alternative, perimeter cables, was infeasible.\u00a0 The failure to provide catchplatforms or safety nets was due, at least in part, to a lack of familiarity with thesesafety devices.\u00a0 Dun-Par had an extensive safety program, and up to that time (overten years in business) had not experienced any serious perimeter falls. The Secretary argues that Dun-Par’s failure toprovide fall protection here was obdurate in light of the previous case where theCommission found that Dun-Par repeatedly had violated the same standard cited here onupper floors in concrete construction. Dun-Par (No. 16062), 8 BNA OSHC at 1050-51, 1980CCH OSHD at pp. 29,492-94.\u00a0 However, guardrails were not shown to be infeasible inthose situations.\u00a0 The specific and substantial feasibility problems here were notaddressed there.\u00a0 No inference of stubborn refusal to protect employees based on thatcase is appropriate.Penalties are to be assessed in consideration ofthe gravity of the violation, the employer’s size, good faith and history of violations.29 U.S.C. ? 666(j).\u00a0 In light of these factors (noted above), a penalty of $160 isappropriate.Thus, the citation for violation of ?1926.500(d)(1) is affirmed, the violation is classified as serious, and a penalty of $160is assessed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 April 12, 1988(actual final order date: April 12, 1989–above date incorrectly published in all other media)BUCKLEY, Chairman, concurring:I concur with Commissioner Arey’s disposition of this case, given the mandate imposed onthe Commission by the Eighth Circuit Court of Appeals in Brock v. Dun-Par EngineeredForm Co., 843 F.2d 1135 (8th Cir. 1988).\u00a0 But I am impelled to point out what Iconsider to be a misunderstanding by the court of the history of the\”impossibility\/infeasibility\” defense as it was created by the ReviewCommission.\u00a0 Quoting Brock v. Chicago Zoological Society, 820 F.2d 909, 912(7th Cir. 1987), the court said, \”[T]he Commission’s reinterpretation of theimpossibility defense is owed no special deference, because ‘it is the Secretary, not theCommission, who exercises policymaking and prosecutorial authority under the Act.’\”\u00a0 843 F.2d at 1137.\u00a0 But it was the Commission rather than the Secretary whocreated the defense in the first place.Adjudication under the Act had hardly begun whencited employers began presenting to our judges various claims of practical impossibility(infeasibility, in essence).\u00a0 These claims all tended toward one of two arguments:\u00a0 that it would be impossible\/infeasible to perform work once the requirements of thestandard were met, or that it would be impossible\/infeasible even to do what the standardrequired.\u00a0 See M.J. Lee Construction Co., 79 OSAHRC 12\/A2, 7 BNA OSHC 1140,1144, 1979 CCH OSHD ? 23,330, p. 28,227 (No. 15094, 1979).\u00a0 But this practicaldefense was nowhere prescribed by the Secretary; on the contrary, in the early cases theSecretary opposed the employers’ claims, asserting, among other things, that the employerswere impermissibly questioning the wisdom of the Secretary’s standards, and that theemployers should instead either have challenged the standards in pre-enforcement reviewproceedings, or have applied to the Secretary for variances.\u00a0 The Commission,however, increasingly questioned the reasonableness of the Secretary’s positions andincreasingly recognized the practical justification of the employers’ claims.\u00a0 See,e.g., W.C. Sivers Co., 74 OSAHRC 30\/B5, 1 BNA OSHC 1074, 1973-74 CCH OSHD ?17,792 (No. 239, 1972); Universal Sheet Metal Corp., 74 OSAHRC 44\/D7, 2 BNA OSHC1061, 1973-74 CCH OSHD ? 18,163 (No. 657, 1974); Dic-Underhill, A Joint Venture,75 OSAHRC 35\/F10, 2 BNA OSHC 1651, 1974-75 CCH OSHD ? 19,328 (No. 2232, 1975); WarnelCorp., 76 OSAHRC 41\/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD ? 20,576 (No. 4537, 1976); Rob’tW. Setterlin & Sons Co., 76 OSAHRC 53\/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD? 20,682 (No. 7377, 1976).\u00a0 And, increasingly, the courts of appeals that addressedthese claims of impossibility\/infeasibility tended to accept the defense and tended toview it in terms of practical compliance rather than technical or physical\”impossibility.\”\u00a0 See, e.g., Dorey Electric Co. v. OSHRC,553 F.2d 357, 358-59 (4th Cir. 1977); Ace Sheeting and Repair Co. v. OSHRC, 555F.2d 439, 441-42 (5th Cir. 1977); Greyhound Lines-West v. Marshall, 575 F.2d 759,762 (9th Cir. 1978); A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 951-52 (1stCir. 1978); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1339 (6th Cir. 1978); SouthernColorado Prestress Co. v. OSHRC, 586 F.2d 1342, 1351 (10th Cir. 1978).Furthermore, the Commission’s later-announcedelement of the defense–requiring the employer to establish either that alternativeprotective measures had been taken or that they were infeasible or unavailable–departedfrom the Commission’s earlier decisions without explanation.\u00a0 Those decisions had notmade alternative measures an element; the Commission instead required the Secretary toallege other standards which would put at issue particular alternative methods ofprotection.\u00a0 See, e.g., Warnel Corp., supra;\u00a0 Rob’tW. Setterlin & Sons Co., supra.\u00a0 In Taylor Building Associates,77 OSAHRC 27\/A10, 5 BNA OSHC 1083, 1085 & n. 8, 1977-78 CCH OSHD ? 21, 592, p. 25,910& n. 8 (No. 3735, 1977), the Commission specifically disclaimed that it wasdetermining whether these earlier decisions should be reevaluated to add an alternativeprotection element to the impossibility defense.\u00a0 Shortly thereafter, however, theCommission cited Taylor for the proposition that the employer had to establish theunavailability of alternative protection to establish the defense.\u00a0 Julius NassoConcrete Corp., 77 OSAHRC 208\/F2, 6 BNA OSHC 1171, 1977-78 CCH OSHD ? 22,401 (No.16012, 1977).\u00a0 Thus, until its decision in this case, the Commission never examinedwhether alternative protection should be an element of the impossibility\/infeasibilitydefense or where the burden of proof should lie.Three recognized defenses now contain analternative measures element:\u00a0 (1) infeasibility (of compliance or of workperformance); (2) greater hazard (while complying or thereafter while working); and (3)the multi-employer worksite defense (that the cited employer on a multi-employer worksiteneither created nor controlled the violative condition).\u00a0 The same element isimplicit in the case of a violation of the general duty clause.\u00a0 29 U.S.C. ?654(a)(1).\u00a0 Certainly, as discussed in the Commission’s earlier decision in thiscase, Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1957-58, 1986-87 CCH OSHD ?27,650, pp. 36,025-26 (No. 79-2553, 1986), the obligation of carrying the burden of proofshould be the same in all of these.\u00a0 In general duty clause cases, the courts andCommission have uniformly imposed upon the Secretary the burden of proving the feasibilityof methods by which to abate the recognized hazard.\u00a0 See, e.g., NationalRealty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); PhillipsPetroleum Co., 84 OSAHRC 2\/E7, 11 BNA OSHC 1776, 1983-4 CCH OSHC ? 26,783 (No.78-1816, 1984), aff’d, No. 84-1425 (10th Cir. Sept. 10, 1985); see also, RoyalLogging Co., 79 OSAHRC 84\/A2, 7 BNA OSHC 1744, 79 CCH OSHD 23,914 (No. 15169, 1979), aff’d,645 F.2d 822 (9th Cir. 1981).\u00a0 For greater hazard defenses, the Commission hasgenerally required the employer to show only the unavailability of alternative methods ofprotection proposed by the Secretary.\u00a0 See, e.g., Industrial SteelErectors, Inc., 74 OSAHRC 2\/E5, 1 BNA OSHC 1497, 1973-4 CCH OSHD ? 17,136 (No.703, 1974); H.E. Wiese, Inc., 82 OSAHRC 18\/A2, 10 BNA OSHC 1499, 1982 CCH OSHD ?25, 985 (No. 78-204, 1982), aff’d No. 82-4202 (5th Cir. 1983).\u00a0 And as to themulti-employer defense, the Commission has recently held (on the authority of GrossmanSteel & Aluminum Corp., 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ?20,691 (No. 12775, 1976)) that an employer is not required to defend against alternativemethods of protection not raised at the hearing.\u00a0 Lewis & Lambert MetalContractors, Inc., 84 OSAHRC 45\/A2, 12 BNA OSHC 1026, 1031, 1984-85 CCH OSHD ?27,073, p. 34,900 (No. 80-5295-S, 1984).\u00a0 In all of these the burden of proposingfeasible alternative methods of protection was on the Secretary.\u00a0 The Commission’searlier decision in the instant case was, therefore, merely an effort to returnconsistency and uniformity to its adjudicatory processes, and at the same time torestructure a departure by the Commission from its prior precedents dealing with theimpossibility\/infeasibility defense.\u00a0 Accordingly, it is with reluctance that Ifollow the Eighth Circuit’s decision so summarily declining to defer to the Commission ona defense which the Commission created and just lately restructured to provide thatuniformity SECRETARY OF LABOR, Complainant, v. DUN-PAR ENGINEERED FORM CO., Respondent.OSHRC Docket No. 79-2553DECISIONBefore:\u00a0 BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651- 678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29U.S.C. ? 659(c).As a result of an employee complaint against thegeneral contractor, an OSHA compliance officer inspected a construction worksite inExcelsior Springs, Missouri.\u00a0 At the worksite, several different employers wereworking on an eleven-story building.\u00a0 Among the subcontractors was Dun-Par EngineeredForm Company (\”Dun-Par\”), which was responsible for the concrete formwork at thesite. When the compliance officer arrived at the worksite, the building was partiallyconstructed to the sixth floor.\u00a0 The second, third and fourth floors of the buildinghad guardrails around the perimeter.\u00a0 However, the fifth and sixth floors did not.\u00a0The compliance officer observed eight Dun-Par employees tearing down formwork on thefifth floor.\u00a0 Although he did not see anyone on the sixth floor, the complianceofficer was told later that Dun-Par employees also had been working on the sixth floor.\u00a0The Secretary cited Dun-Par under 29 C.F.R. ? 1926.500(d)(1)[[1]] for failing toprovide guardrails on the fifth and sixth floors.\u00a0 The Secretary later amended hiscitation to allege, in the alternative, that Dun-Par should have protected its employeesagainst perimeter falls by providing them with safety belts under the personal protectionequipment standard at 29 C.F.R. ? 1926.28(a).[[2]]Judge Dixon affirmed the citation and rejectedDun-Par’s defense that guardrails were \”impossible\” to erect at the worksite.\u00a0 The judge found that Dun-Par could have installed guardrails and also found that\”cables, catch platforms, outriggers and nets, and safety belts\” would have beenfeasible.\u00a0 We reverse Judge Dixon’s findings and hold that Dun-Par established thatguardrails and safety belts were infeasible at the Excelsior Springs worksite.[[3]]At the worksite, Dun-Par erected the woodenformwork into which concrete was poured to form the structural framework of the building.\u00a0This formwork was erected on each floor of the building.\u00a0 The formwork for onefloor could not be erected until the concrete on the previous floor had hardened.First, the vertical forms, or shores, were builtby connecting two 4×4 wooden beams together with the aid of an \”ellis clamp.\”\u00a0 Then, 4×6 horizontal forms, or ledgers, were attached to the vertical shores andthe vertical and horizontal forms were raised.\u00a0 Every sixteen feet along the floor,this same process of combining and then raising vertical and horizontal forms wasrepeated.\u00a0 The formwork along the perimeter of the floor was angled out in such a waythat the shores would be able to support an overhead walkway that would be built aroundthe floor above.Additional 4×4 horizontal wooden forms, calledrunners, were attached to join the shores and ledgers together.\u00a0 This vertical andhorizontal formwork was braced by additional 4×4 and 4×6 wooden beams.\u00a0 A horizontalgridwork form was placed down on top of this infrastructure and plywood was nailed downonto the gridwork form.\u00a0 Concrete was then poured onto the completed formwork. \u00a0When the concrete hardened, the wooden formwork was torn down by Dun-Par employeesstanding in the center of the floor and pulling the wooden forms away from the hardenedconcrete.\u00a0 This left a concrete floor, which Dun-Par employees used as a base at somelater time to erect vertical and horizontal formwork for the next floor.Dun-Par argued to the judge that it could nothave erected guardrails and still performed its work at the Excelsior Springs worksite.Specifically, Dun-Par argued \”the functional impossibility\/impracticality ofperimeter guarding.\”\u00a0 At the hearing, Dun-Par presented the testimony of twoDun-Par construction workers and John Dunn, the president of Dun-Par.\u00a0 All threewitnesses had extensive experience in concrete formwork; all three gave several specificreasons why guardrails were not feasible at any stage during Dun-Par’s work.\u00a0 Thethree Dun-Par witnesses testified that before the plywood forms had been laid on top ofthe vertical shores and horizontal ledgers and gridwork there was no place to erectguardrails.The compliance officer conceded that guardrailscould not be erected until the plywood forms were put down, but contended that guardrailswere feasible on the fifth and sixth floors of the Excelsior Springs project.\u00a0 However, the Dun-Par witnesses demonstrated that guardrails would also beinfeasible on the fifth and sixth floors.\u00a0 Dunn explained that the vertical shoringon one floor was used to support the floor above and a walkway surrounding the overheadfloor.\u00a0 Here, the vertical shoring of the fifth, or \”base\” floor was usedto support the sixth floor and walkway surrounding the sixth floor.\u00a0 Thus, thevertical shoring on the fifth floor had to be angled out so that it supported the overheadwalkway which was beyond the perimeter of the building.\u00a0 The way in which thevertical shoring was angled out, according to Dunn, made it impossible to erect aguardrail on the fifth floor while the formwork was being erected on top of the concretebase floor.\u00a0 Any guardrail would interfere with this essential vertical shoring andwould have had to be removed when Dun-Par erected the vertical perimeter shores.\u00a0 OneDun-Par employee explained that any cable or guardrail around the perimeter of thebuilding would actually force Dun-Par workers to perform some of their duties outside theperimeter guarding.Dun-Par’s witnesses also testified thatguardrails were not feasible on the sixth floor during the time between the laying of theplywood cover and the erection of the vertical shores to support the next level. \u00a0First, the Dun-Par witnesses testified that when the plywood was placed down andguardrails could be erected, the guardrails would perform no safety function for theDun-Par employees.\u00a0 After the plywood forms were in place, Dun-Par’s work on thefloor was completed and the other building trades would come on to the floor and performtheir duties.\u00a0 As Dunn explained, after plywood forms were in place, Dun-Paremployees were \”down the building and other trades are moving in.\”Dunn stated that a single Dun-Par employeeoversaw the pouring of concrete over the wooden forms to check for any unusual weaknessesin the formwork.\u00a0 However, this employee, according to Dunn, would not go to theperimeter of the building unless there was a particular problem.Finally, the Dun-Par witnesses explained that theguardrails would be destroyed when Dun-Par employees returned to remove the shoring afterthe concrete was poured.\u00a0 The wooden shores were wedged into place and were removedby pulling them out. According to Dun-Par witnesses, any guardrails in place would bedestroyed when the shoring was ripped down.\u00a0 Therefore, guardrails would not befeasible during the tearing down of the formwork.Dun-Par also argued that \”a safety belt\/lifeline system of protection is neither feasible nor of likely utility.\”\u00a0 TheSecretary presented only the general opinion of the compliance officer — who had noexperience in concrete formwork — that such protection could have been provided.\u00a0 Onthe other hand, Dun-Par presented specific testimony as to why safety belts would not havebeen feasible. When asked whether Dun-Par employees could wear safety belts and stillperform their duties, Dunn explained that Dun-Par employees needed to move around freelyin the work area in order to do their job.\u00a0 He added, \”We’re going up and downladders. Safety belts would just be impossible to do the job, do the work.\”IITo prove a violation of an OSHA standard, such as sections 1926.500(d)(1) or 1926.28(a),the Secretary must establish (1) the applicability of the cited standard, (2) theexistence of noncomplying conditions, (3) employee exposure or access, and (4) thatemployer knew or with the exercise of reasonable diligence could have known of theviolative condition.\u00a0 See Belger Cartage Service Inc., 79 OSAHRC 16\/B4,7 BNA OSHC 1233, 1235, 1979 CCH OSHD ? 23,440, p. 28,373 (No. 76-1480, 1979); HarveyWorkover, Inc., 79 OSAHRC 72\/D5, 7 BNA OSHC 1687, 1688-90, 1979 CCH OSHD ? 23,830,pp. 28,908-10 (No. 76-1408, 1979).\u00a0 Here, there is no dispute about either theapplicability of the standards or that there were no guardrails or safety belts being usedat the worksite.\u00a0 Neither is there any question that Dun-Par employees had access tothe unguarded perimeter or that Dun-Par knew about the condition.\u00a0 The question inthis case is whether, as the direction for review suggests, the erection of guardrails anduse of safety belts were feasible at the Excelsior Springs worksite.The Commission has long held that employers maydefend against a citation that alleges a violation of an OSHA standard requiring aparticular means of abatement,–in this case, section 1926.500(d)(1), which requires theinstallation of guardrails–by proving the affirmative defense of\”impossibility.\”\u00a0 E.g., Julius Nasso Concrete Corp., 77OSAHRC 208\/F2, 6 BNA OSHC 1171, 1977-78 CCH OSHD ? 22,401 (No. 16012, 1977).\u00a0 Thisdefense has two elements:\u00a0 (1) impossibility and (2) proof of alternative protection.Under this defense the employer must first demonstrate that compliance with the standard’sliteral requirements was not possible or would preclude performance of the employer’swork.\u00a0 E.g., Braxton Furniture Manufacturing Co., 83 OSAHRC 30\/A2, 11BNA OSHC 1433, 1435, 1983-84 CCH OSHD ? 26,538, p. 33,858 (No. 81-799, 1983). \u00a0Secondly, the employer must show that he took alternative means of protection notspecified in the standard, or that alternative means of protection were unavailable.\u00a0 Id.\u00a0 See also American Luggage Works, Inc., 82 OSAHRC30\/C7, 10 BNA OSHC 1678, 1683, 1982 CCH OSHD ? 26,072, p. 32,797 (No. 77- 893, 1982).The Secretary argues that Judge Dixon was correctin finding that Dun-Par failed to establish the elements of the impossibility defense.\u00a0According to the Secretary, Dun-Par failed to show that the erection of guardrailsor the use of safety belts would have prevented Dun-Par from doing its work.\u00a0 TheSecretary also argues that Dun-Par failed to show that other ways of protecting theworkers were not available.On review, Dun-Par does not argue that theerection of guardrails was absolutely impossible but that the guardrails \”were not afeasible means to protect Dun-Par employees due to the circumstances and nature of Dun-Par’s work.\”\u00a0 Dun-Par further argues that the guardrails were not\”practical\” and that their use at the workplace was \”contrary to commonsense and the purpose of the Act.\”\u00a0 Similarly, Dun-Par argues that the recordestablishes that safety belts were \”neither feasible nor of likely utility.\”\u00a0 Dun-Par argues that the Commission should follow the rationale of the United StatesCourt of Appeals for the Eighth Circuit in H.S. Holtze Construction Co. v. OSAHRC,627 F.2d 149 (8th Cir. 1980), and adopt a more practical and reasonable approach to thedefense of \”impossibility.\”Dun-Par’s arguments on review are not couched inthe traditional terms of the impossibility defense.\u00a0 Dun-Par does not claim that theerection of guardrails or the use of safety belts was \”impossible\” but only thatthese means of protection did not make sense given the manner in which Dun-Par performedits work.\u00a0 Neither does Dun-Par make any claim that it took available, alternativemeasures, as required under the second element of the \”impossibility\” defense.\u00a0 Essentially, Dun-Par questions the \”impossibility\” defense as it has beendeveloped by the Commission.A.Heretofore, the initial requirement of the impossibility defense was that the employer wasrequired to show that it is \”impossible\” to comply with a standard. \u00a0Although Commission decisions have consistently spoken of \”impossibility,\”several courts of appeals have instead inquired whether compliance was\”infeasible.\”[[4]]\u00a0 It is to this distinction between\”impossibility\” and \”infeasibility\” that we now turn.Section 5(a)(2) of the Act, 29 U.S.C. ?654(a)(2), states simply that employers \”shall comply with occupational safety andhealth standards promulgated under this Act.\”\u00a0 However, it soon became apparentto the Commission that this provision of the Act could not reasonably be applied in aliteral manner and that some sort of impossibility or infeasibility defense was necessary.The Commission’s use of the word\”impossibility\” began in W.C. Sivers, 74 OSAHRC 30\/B5, 1 BNA OSHC 1074,1973-74 CCH OSHD ? 17,792 (No. 239, 1972).\u00a0 There, the employer had suggested thatcompliance with a standard would have prevented work from being performed.\u00a0 TheCommission remanded to give the employer an opportunity to prove this but reserveddecision on whether the allegation was a defense.\u00a0 The Commission stated simply that:It may well be that [the employer], by thisallegation, intended to raise (albeit inartfully) impossibility of compliance as anaffirmative defense.\u00a0 We would give [the employer] the opportunity to present thedefense without venturing any opinion at this time concerning the question of thecompleteness of the defense, if established under the Act.1 BNA OSHC at 1076, 1973-74 CCH OSHD at p. 22,165.In the first Commission decision that actuallyupheld the defense, the Commission vacated a citation for a violation of standardsrequiring guardrails on the ground that the work would have been \”impossible\”with the railings in place.\u00a0 W.B. Meredith, II, Inc., 74 OSAHRC 39\/A2, 1 BNAOSHC 1782, 1973-74 CCH OSHD ? 18,003 (No. 810, 1974); see also Garrison &Associates, Inc., 75 OSAHRC 51\/D5, 3 BNA OSHC 1110, 1974-75 CCH OSHD ? 19,550 (No.4235, 1975).\u00a0 The Commission did not, however, make clear why a showing of\”impossibility\” was necessary, as opposed to a showing of\”infeasibility.\”\u00a0 Possibly early members of the Commission saw no sharpdistinction between the two, because thereafter, in K & T Steel Corp., 76OSAHRC 31\/A2, 3 BNA OSHC 2026, 2028, 1975-76 CCH OSHD ? 20,445, p. 24,415 (No. 5769,1976), the Commission held that the \”impossibility\” defense had not been provenbecause the evidence showed the \”feasibility\” of using a guarding methodrequired by a standard.\u00a0 See also Central Steel & Tank Co., 75OSAHRC 9\/A2, 3 BNA OSHC 1711, 1712, 1975-76 CCH OSHD ? 20,172, p. 24,017 (No. 2346, 1975)(employer failed to establish that no \”practical\” means of guarding exists;\”impossibility\” defense not proved); and Universal Sheet Metal Corp., 74OSAHRC 44\/D7, 2 BNA OSHC 1061, 1973-74 CCH OSHD ? 18,163 (No. 657, 1974) (compliance withstandard would render performance of work \”very difficult if not impossible.\”)\u00a0 When finally in C. Kaufman, Inc., 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1300,1977-78 CCH OSHD ? 22,481, p. 27,101 (No. 14249, 1978), and Hughes Brothers,Inc., 78 OSAHRC 65\/A2, 6 BNA OSHC 1830, 1835, 1978 CCH OSHD ? 22,909, p. 27,719 (No.12523, 1978), the Commission drew a sharp distinction between the terms\”impossibility\” and \”infeasibility,\” it did not explain why it did so.\u00a0 See also StanBest, Inc., 83 OSAHRC 10\/D6, 11 BNA OSHC 1222,1231, 1983-84 CCH OSHD ? 26,455, p. 33,624 (No. 76-4335, 1983).We think that the early members of the Commissioncorrectly appreciated that literal compliance with the standards was not always possible.\u00a0 However, we do not believe the so-called impossibility defense, as presentlyframed, adequately reflects the obligations of employers under the Act.\u00a0 Thestandards adopted in the earliest days of the Act were national consensus standards andestablished federal standards, which Congress had required the Secretary to adopt quicklywithout additional rulemaking.\u00a0 See sections 3(9), 3(10) and 6(a) of Act, 29 U.S.C.?? 652(9), 652(10) and 655(a).\u00a0 The national consensus standards, which were thesource of the \”overwhelming majority of safety standards,\”[[5]] were oftenout-of-date by the time OSHA adopted them.[[6]]\u00a0 They had been drafted by committeesof industry representatives under the auspices of private standard-setting organizations,particularly the American National Standards Institute (ANSI) and the National FireProtection Association (NFPA), and were not intended to be used as mandatory, inflexiblelegal requirements.\u00a0 A managing director of ANSI, for example, commented that\”[i]n the days before OSHA, when standards were developed as advisories, not laws,the committees sometimes tended to incorporate some lofty goals, knowing they would neverbe held accountable if [employers] didn’t achieve them.\”[[7]]\u00a0 As one observernoted:… [P]rivate standards were often written asgoals to be attained rather than as rules intended to be enforced…. Many combine arbitrary levels, values, or other requirements with an either explicitor implicit understanding that these requirements are not to be applied by rote to everysituation which they might literally cover.[[8]]Both OSHA officials and early members of the Commission recognized that the voluntaryconsensus standards were not designed to be rigidly enforced.[[9]] This view wasreaffirmed by the Third Circuit in A.F.L.-C.I.O. v. Brennan, 530 F.3d 109, 112 (3dCir. 1975).\u00a0 That case involved a machine guarding standard that was derived from anANSI standard.\u00a0 The court observed that \”[w]hen it promulgated the no hands indies standard, the [ANSI] B 11 standards committee did not anticipate that its code would… become a mandatory federal standard rather than a precatory guideline for the affectedindustries.\”This lack of expectation of rigid enforcementalso lay behind the established federal standards adopted en masse in 1971.\u00a0 Manywere taken from standards adopted under the Walsh-Healey Public Contracts Act, 41 U.S.C.?? 35-45.\u00a0 Yet, the Walsh-Healey standards were only interpretive rules, designedto establish a benchmark for employee safety and health but not to finally determine thegovernment contractor’s duty.\u00a0 Thus, Labor Department regulations permitted thecontractor to challenge the \”legality, fairness or propriety\” of the LaborDepartment’s reliance on a standard to show a violation of the statutory prohibitionagainst \”unsanitary or hazardous or dangerous working conditions.\”\u00a0 41C.F.R. ? 50-204.1.\u00a0 See generally American Can Co., 82 OSAHRC 5\/A2, 10 BNAOSHC 1305, 1311, 1982 CCH OSHD ? 25,899, p. 32,414 (No. 76-5162 1982).The same is true of the Construction Safety Actstandards in 29 C.F.R. Part 1926, which were originally adopted under and interpreted theContract Work Hours and Safety Standards Act, 40 U.S.C. ? 327 et seq. \u00a0(commonly known as the \”Construction Safety Act\”).\u00a0 According to 29 C.F.R.? 1926.10 (first designated 29 C.F.R. ? 1518.10), the Construction Safety Act standardswere specifically intended to interpret and apply section 107 of the Construction SafetyAct, 30 U.S.C. ? 333, which prohibits \”unsanitary, hazardous, or dangerous\”working conditions in government construction work.\u00a0 However, the procedures forenforcement were to be those under the Service Contract Act, 41 U.S.C. ? 351 et seq.\u00a029 C.F.R. ? 1926.4 (first designated 29 C.F.R. ? 1518.4), adopted at 36 Fed. Reg.7340, 7341 (1971).\u00a0 The version of the pertinent Service Contract Act regulation thatwas in effect when the Construction Safety Act standards were adopted prescribed a systemlike that in the Walsh-Healey Act: Labor Department investigators and other officers wereinstructed to \”assume that failure to comply with…the safety and health measuresprovided in [the Service Contract Act standards] results in working conditions which are’unsanitary or hazardous or dangerous….’\”\u00a0 In \”formal enforcementproceedings,\” however, contractors would \”be permitted to demonstrate byreliable, substantial, probative evidence, that their failure to comply with [the ServiceContract Act standards] did not result in working conditions unsanitary or hazardous ordangerous….\” Section 1516.1(b) and (c), adopted at 32 Fed. Reg. 21036-21037(1967). Thus, the Construction Safety Act standards were originally intended to be onlyinterpretive regulations; failure to follow a standard was not per seviolation.Moreover, many, if not most, of the interpretivestandards adopted under the Walsh-Healey Act and the Construction Safety Act werethemselves derived from private, voluntary standards, which, as we have noted, were notdrafted as inflexible, legal commands.[[10]]The Commission’s experience in interpreting and applying the OSHA standards adopted undersection 6(a) has been consistent with the above account of their history–that they couldnot possibly have been written with literal application in mind; rather the standards weredesigned not for all cases but for the normal case.[[11]]\u00a0 As the Eighth Circuitpointed out in H.S. Holtze Construction Co. v. Marshall, 627 F.2d at 151-52,\”some modicum of reasonableness and common sense is implied.\”[[12]] Strict application of an \”impossibility\” defense does not accommodateconsiderations of reasonableness or common sense, or reflect the strong sense of thepractical implicit in the standards adopted under section 6(a).\u00a0 Feasibility, on theother hand, is consistent with the requirements of the Act and with earlier Commissiondecisions.\u00a0 This view is buttressed by the legislative history of the Act and by thelanguage of some standards.\u00a0 Thus, section 6(b)(5), by which means Congress intendedthe Secretary to adopt the health standards that would replace OSHA \”interim\”standards, speaks expressly of \”feasibility.\”\u00a0 One court has inferred fromsection 6(b)(5) that all OSHA standards are implicitly constrained by the feasibilityrequirement.\u00a0 See A.F.L.-C.I.O. v. Brennan, 530 F.2d 109, 121 (3d Cir. 1975); Atlantic& Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 555 (3d Cir. 1976).\u00a0 TheSecretary’s own standards–particularly the new health standards–consistently use theword \”feasible\” to qualify the employer’s obligation.[[13]]\u00a0 The generalduty imposed by section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), which applies when nostandard is applicable, is also implicitly qualified by the concept of\”feasibility.\”\u00a0 See National Realty & Construction Co. v. OSHRC,489 F.2d 1257 (D.C. Cir. 1973).\u00a0 Finally, when a standard is so unclear that it wouldotherwise be held unconstitutionally vague, the Commission and several courts of appealshave held that the standard applies only to the extent the duty imposed on the employer is\”feasible.\”\u00a0 See Granite City Terminals Corp., 86 OSAHRC____, 12 BNA OSHC 1741, 1746 & n.10., 1986 CCH OSHD ? 27,547, pp. 35,774-75 &n.10 (No. 83-882-S, 1986); Frank Briscoe Co., Inc., 76 OSAHRC 129\/A2, 4 BNA OSHC1729, 1976-77 CCH OSHD ? 21,162 (No. 7792, 1976); L. R. Willson & Sons, Inc. v.OSHRC, 698 F.2d 507 (D.C. Cir. 1983); Modern Drop Forge Co. v. Secretary ofLabor, 683 F.2d 1105 (7th Cir. 1982); Voegele Co. v. OSHRC, 625 F.2d 1075 (3rdCir. 1980); Ray Evers Welding v. OSHRC, 625 F.2d 726 (6th Cir. 1980); BristolSteel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979); GeneralElectric Co. v. OSHRC, 540 F.2d 67 (2d Cir. 1976).We agree with several courts of appeals that\”rather than ‘impossibility,’ the question is more properly thought of in terms of[in]feasibility.\u00a0 A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 950 &n.1 (1st Cir. 1978).[[14]]\u00a0 We therefore modify the defense by changing the inquiryin the first element from \”impossibility\” to \”infeasibility.\”\u00a0 Weoverrule Commission precedent that requires employers to prove that compliance with astandard is \”impossible\” rather than \”infeasible.\” B.Under the second element of the impossibility defense, an employer who established theimpossibility of the cited standard was also required to persuade the trier of fact by apreponderance of the evidence that alternative protective measures had been taken or wereunavailable.\u00a0 M. J. Lee Construction Co., 79 OSAHRC 12\/A2, 7 BNA OSHC 1140,1146, 1979 CCH OSHD ? 23,330, p. 28,229 (No. 15094, 1979).\u00a0 Although section 5(a)(2)of the Act does not expressly impose a requirement to use available alternative protectivemeasures, the Commission has reasoned that an employer should do something to protect itsemployees if literal compliance with a standard is impossible.\u00a0 See id.However, none of the Commission cases thatdiscussed the impossibility defense and that allocated the burden of persuasion to theemployer to establish that compliance with a standard was \”impossible,\” everanalyzed why the employer should also have the burden of persuasion to establish thatalternative means of protection were \”unavailable\” or why\”unavailability\” should be the test for determining the employer’s duty.\u00a0Similarly, although the courts of appeals upheld the Commission’s allocation of theburden of persuasion to the employer to establish that compliance with the cited standardwas \”infeasible\” or \”impossible,\” Cleveland Consolidated v.OSHRC, 649 F.2d 1160 (5th Cir. 1981); Southern Colorado Prestress Co. v. OSHRC,586 F.2d 1342 (10th Cir. 1978); Diebold Inc. v. Marshall, 585 F.2d 1327 (6th Cir.1978); A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948 (1st Cir. 1978); AceSheeting & Repair Co. v. OSHRC, 555 F.2d 439 (5th Cir. 1977), none of the courtsdiscussed the allocation of the burden of persuasion on the alternative measures element.The allocation to the employer of the burden ofpersuasion on the alternative measures issue posed almost insoluble litigating problemsfor the employer:\u00a0 He would have to prove the negative of a proposition and he couldnever know when he had proven the unavailability of all the alternative measures thatcould possibly exist.\u00a0 To prepare for a hearing in which the impossibility ofabatement would be in issue, the employer would have to conceive of all possiblealternative measures, including those that might be suggested by the Secretary or hiswitnesses, and prepare evidence to establish that all those measures were\”unavailable.\”\u00a0 Still, the employer could never know for certain that hehad prepared his defense adequately, that he had addressed all possible alternativemeasures.\u00a0 Others might occur to the Secretary, the judge or the Commission that theemployer might not have anticipated no matter how diligent or imaginative his preparationfor the hearing.We conclude that the burden of proposingalternative means of protection and persuading the trier of fact that the employer failedto use them more fairly rests with the Secretary.It should be noted that there are \”nohard-and-fast standards governing the allocation of the burden of proof in everysituation.\” Keyes v. School District No.1, Denver, Colo., 413 U.S. 189, 209(1973).\u00a0 Where the burden of persuasion falls will ultimately rest \”upon broadreasons of experience and fairness.\”\u00a0 J. Wigmore, Evidence ? 2486 at 292(J. Chadbourn ed., 1981).The courts have considered a host of factors whendeciding whether to place the burden of persuasion with one party or another.[[15]]\u00a0 SeeMcCormick, Laws of Evidence ? 337 at 788-789 (2d ed. 1972).\u00a0 Onefactor that is carefully considered is whether the facts with regard to an issue arewithin the knowledge of a particular party; if they are, that party is more likely to beallocated the burden of establishing those facts.\u00a0 McCormick at 787; AdvancedMicro Devices v. C.A.B, 742 F.2d 1520 (D.C. Cir. 1984).\u00a0 See alsoLouisiana-Pacific Corp., 77 OSAHRC 63\/E14, 5 BNA OSHC 1572, 1977 CCH OSHD ? 21,977(No. 6277, 1977) (concurring opinion).\u00a0 One court used this reasoning in holding thatthe burden of persuasion should be on the employer to establish that compliance with thecited standard was infeasible.\u00a0 The Fifth Circuit in Ace Sheeting observed:Here, the regulation stated specific ways for theemployer to eliminate the hazard.\u00a0 If the employer put up guard rails or covered theskylights, the safety standard would have been met.\u00a0 If for any reason guard rails orcovers are not feasible, the employer knows this better than anyone else, and it isreasonable to require him to come forward with the evidence to prove it. . . . Wetherefore hold that where a specific duty standard contains the method by which the workhazard is to be abated, the burden of proof is on the employer to demonstrate that theremedy contained in the regulation is infeasible under the particular circumstances. Ace Sheeting, 555 F.2d at 441.On the other hand, determining whether alternative feasible means of protection could havebeen used in a particular situation requires safety expertise and a broad knowledge ofavailable abatement methods.[[16]]\u00a0 An employer is not always aware of the manyalternative means of protection, particularly if the alternative means of protection arenot commonly used in the employer’s industry.\u00a0 Knowledge of the various alternativemeans of protection is more likely to reside with the compliance officer and otheremployees of the Occupational Safety and Health Administration.\u00a0 The employer doesnot on balance have any peculiar knowledge concerning alternative means of protection andmay indeed have less knowledge than OSHA of such matters.The allocation to the Secretary of the burden ofalleging and establishing alternative means of protection is more consistent with holdingsin closely analogous areas of occupational safety and health law.\u00a0 Where a statute orstandard specifies a means of abatement or states specific performance criteria, anemployer is informed of his duty; if he raises an infeasibility defense, he will know whatmeasures he must prove are \”infeasible.\”\u00a0 If the standard or statute (forexample, the general duty clause) is not so specific, however, the Commission and thecourts have imposed on the Secretary the duty to specify and prove the feasibility of ameans of abatement.\u00a0 Compare National Realty & Construction Co., Inc. v. OSHRC,489 F.2d 1257, 1268 (D.C. Cir. 1973) (general duty clause), and Granite City TerminalsCorp., 86 OSAHRC ____, 12 BNA OSHC 1741, 1746, 1986 CCH OSHD ? 27,547, p. 35,775 (No.83-882-S, 1986) (general standards), with Anoplate Corp., 86 OSAHRC ____, 12 BNAOSHC 1678, 1684, 1986 CCH OSHD ? 27,519, p. 35,682 (No. 80-4109, 1986) (no burden ofproving feasibility where standard is specific). Here, once the employer has proven theinfeasibility of the specific means of abatement imposed by or described by a standard,the situation is similar to one in which a standard or statute prescribes none at all.\u00a0 Here too then, we think it appropriate to impose on the Secretary the duty toformulate his own theory of what the employer should have done, to allege that theory andto support it with evidence at the hearing.For much the same reason, the Secretary will berequired to show that the alternative means of protection is \”feasible\” and notmerely \”available.\”\u00a0 This accords with the reasoning of the District ofColumbia Circuit in National Realty that we mentioned above, and, as discussed in PartII.A of this decision, with the language, structure and purpose of the Act.\u00a0 TheSecretary must therefore show that the alternative means is a practical and realisticmethod, given the circumstances at the workplace, to protect the employer’s workers, andthat the employer did not use it.The employer may, of course, rebut theSecretary’s showing that the employer did not use a feasible alternative method ofprotection.\u00a0 He may, among other things, show that he had used another alternativeprotective method that was reasonably designed to mitigate the hazard.\u00a0 Thealternative method actually used by the employer need not, however, be as protective asthe method proposed by the Secretary; it need only provide as much protection as themethod required by the standard or, in the case of a general standard, by the method ofprotection proven to be a feasible method of complying with the standard.We believe the reallocation of the burden ofpersuasion described in this decision will be fairer to the parties.\u00a0 It will givethe employer sufficient notice of what alternative means of protection will be the subjectof the litigation.\u00a0 We also believe this reallocation of the burden of persuasionwill \”sharpen the inquiry\” and \”frame the factual question\” to theessential question concerning alternative means of protection:\u00a0 what could theemployer have done to bring himself into compliance with the cited standard?\u00a0 SeeTexas District of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981).\u00a0This will result in the creation of a fuller record concerning the important issuesof the case and therefore better decision making.In placing on the Secretary the burden to showthe feasibility of specific alternative measures, we do not hold that when employers arefaced with the infeasibility of the specific abatement method identified in applicablestandards, they are free to do nothing until told what to do by the Secretary in anadjudicatory proceeding.\u00a0 Just as employers have a duty to make reasonable efforts tocomply with the general duty clause and standards that state only a general duty,employers who find identified forms of abatement infeasible continue to have a duty tomake reasonable efforts to utilize other means of abating the hazard of which the standardgives them notice.The concurring opinion argues that due processproblems will arise because the employer may be held in violation of the Act for nottaking measures that are not required by standards promulgated under section 5(a)(2) orunder the general duty clause of the Act. We believe that there are not such due processproblems.We do not agree with the concurrence that theSecretary’s alternative measure must be derived from the most specifically applicablestandard or through independent proof of a recognized hazard under section 5(a)(1).\u00a0In large measure the concurrence, by permitting an alternative measure to berebutted on grounds of inapplicability or preemption, would preclude the Secretary fromrebutting an infeasibility defense since most standards are hazard specific.\u00a0 TheSecretary need not offer independent proof of recognition of the hazard since the standardwhich he first cited gives the employer notice of the hazard.\u00a0 Nor, where a citedstandard would require abatement of other than serious hazards, would it be necessary forthe Secretary to show the hazard to be likely to cause death or serious injury.\u00a0 Ithaving been established in rulemaking that the hazard warrants precautionary measures, theremaining issue, where the employer has raised infeasibility of compliance as a defense,is simply the feasibility and likely utility of means of abatement not specified in thestandard.\u00a0 We would reiterate, however, that the Secretary has the same burden toshow feasibility of the alternative measure as under the general duty clause.That the exact measures the employer should havetaken are not spelled out in a standard is no different from when an employer is citedunder the general duty clause or a performance standard.\u00a0 There, an employer is notapprised of specific measures he must take to comply with the general duty clause or aperformance standard, but rather only with the general nature of the hazard.\u00a0 Just asthe Commission and the courts have found no due process problems with the lack of specificabatement methods in the general duty clause or general performance standards,[[17]] weperceive no violation of due process because an employer is not notified in a standard ofthe specific alternative means of abatement he could take to protect his employees.\u00a0In both cases, the employer has a duty to think for himself and determine whatfeasibly can be done.III.Applying the infeasibility defense here, the question is whether Dun-Par established thatguardrails could not have been installed or would have disrupted the work to such a degreethat there was no feasible way to use guardrails to protect Dun-Par’s employees. Dun-Par’swork in erecting the concrete formwork occurred in several distinct stages.In the first stage, Dun-Par employees constructedand then raised vertical and horizontal forms every 16 feet along the floor.\u00a0 Bothparties agreed that at this stage, before the plywood was laid on top of the vertical andhorizontal forms, there was simply no place to put guardrails.\u00a0 Therefore, at thisstage in Dun-Par’s work, guardrails were infeasible.In the next stage of Dun-Par’s work, Dun-Par’semployees attached plywood to the vertical and horizontal forms so that concrete could bepoured onto the wooden forms.\u00a0 The parties disagreed whether guardrails could be usedat this stage of Dun-Par’s work. Dun-Par argued that guardrails could not be used becauseof the way in which the vertical shores along the perimeter of the building had to beangled out.\u00a0 Dun-Par’s witnesses explained that the vertical shores along theperimeter of the building were used to support the overhead floor and a walkwaysurrounding the floor above.\u00a0 According to Dun-Par’s witnesses, the way in whichvertical shores were angled would leave no room for guardrails along the perimeter.From the evidence at the hearing, it appears thatit was theoretically possible to erect guardrails once the plywood was put down. However,just because there was some conceivable way to erect guardrails does not mean thatguardrails were feasible.\u00a0 As the Dun-Par witnesses explained, guardrails wouldinterfere with the vertical shoring along the perimeter of the floor.\u00a0 Any guardrailalong the perimeter would have to be removed so as not to interfere with this shoring.\u00a0 Thus, guardrails could have been placed somewhere on the floor though not along theperimeter.\u00a0 Dun-Par witnesses testified, however, that any perimeter guarding wouldforce Dun-Par employees to work outside the perimeter guards.\u00a0 We therefore find thatguardrails were infeasible at this stage of Dun-Par’s operation.\u00a0 Requiring anemployer constantly to erect and tear down the guardrails or to have its employees workoutside the guardrails in order to complete their work is not a feasible method ofcomplying with section 1926.500(d)(1).The next stage of work was the pouring ofconcrete.\u00a0 This began after the vertical and horizontal forms were erected and theplywood was laid down.\u00a0 By this time, almost all of the Dun-Par employees had leftthe work area.\u00a0 Only one Dun-Par employee generally remained to oversee the pouringof concrete over the wooden forms and to check for any sagging or slippage in the forms.The employee would have no occasion to approach the perimeter of the floor unless therewas an unexpected problem with the shores at the perimeter of the building during theconcrete pour.We are unconvinced by the Secretary’s evidence ofemployee access at this stage.\u00a0 The Secretary must prove that it is reasonablypredictable that \”employees either while in the course of their assigned duties,their personal comfort activities while on the job, or their normal means ofingress-egress to their assigned workplaces, will be, are or have been in a zone ofdanger.\”\u00a0 Carpenter Contracting Corp., 84 OSAHRC _____ , 11 BNAOSHC 2027, 2029, 1984 CCH OSHD ? 26,950, p. 34,563 (No. 81-838, 1984); Gilles &Cotting, Inc., 76 OSAHRC 30\/D9, 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD ? 20,448, p.24,425 (No. 504, 1976).\u00a0 Here, the evidence consists of no more than speculation thatan employee might go to the edge of the building if an unusual event occurred. \u00a0Although it may have been physically possible to erect perimeter guardrails at this stage,it would have made no practical sense for Dun-Par to have done so.\u00a0 Dun-Parundoubtedly would have had to engage other employees in the erection of guardrails alongthe entire perimeter of the fifth floor, thereby inevitably exposing them to a fallhazard.\u00a0 This would have been done to protect one employee in the event of an unusualoccurrence during the concrete pour — that an employee would go to the floor perimeter tocheck for sagging or slippage of the wooden forms.\u00a0 We find that guardrails would nothave been a feasible way to protect that single Dun-Par employee during the concrete pour.After the poured concrete hardened, Dun-Paremployees returned to the work area to remove the wooden forms.\u00a0 Dun-Par employeeswould stand away from the perimeter of the floor and pull the wooden forms with the aid ofa rope or board toward the center of the floor.\u00a0 Uncontradicted testimony byDun-Par’s witnesses established that any guardrails would have been destroyed by thisprocedure.\u00a0 At this point, guardrails may have been theoretically possible but theywould have served no practical purpose in protecting the employees.\u00a0 Under thecircumstances, we find that guardrails at this stage of Dun-Par’s work were infeasible.As we stated previously, feasibility must reflectthe strong sense of the practical implicit in the OSHA standards.\u00a0 The question ofwhether a means of protection is infeasible must be answered in light of the practicalrealities of the particular workplace.\u00a0 Looking at the evidence presented concerningeach stage of Dun-Par’s operations, we find that Dun-Par established by a preponderance ofthe evidence that there was no feasible way to comply with section 1926.500(d)(1).\u00a0Therefore, we uphold Dun-Par’s affirmative defense that guardrails were infeasible.The Secretary alternatively charged that safety belts could be used at the workplace.\u00a0Dun-Par maintained that because its employees needed to move about the worksitefreely, safety belts would not be feasible.\u00a0 In Granite City Terminals Corp.,86 OSAHRC , 12 BNA OSHC 1741, 1746 & n.10, 1986 CCH OSHD ? 27,547, p. 35,775 (No.83-882-S), the Commission held that when an employer is cited under a general standard,such as section 1926.28(a), which does not specify a particular method of compliance, theSecretary must prove that there is a feasible means of complying with the standard.[[18]]\u00a0The Secretary, then, has the burden of proving that safety belts were feasible atthe Excelsior Springs worksite.After weighing the testimony presented at thehearing and considering the practical realities of the workplace, we find that theSecretary failed to establish that safety belts were feasible.\u00a0 The Secretarypresented no evidence concerning how the safety belts would actually be used at theworkplace beyond the compliance officer’s bare claim that safety belts were feasible.\u00a0 On the other hand, Dun-Par presented specific testimony which established thatsafety belts were infeasible.\u00a0 Mr. Dunn, who had much more experience with concreteformwork than the compliance officer, explained the need for Dun-Par workers to movefreely about the work area, often moving up and down ladders.Although we uphold Dun-Par’s infeasibilitydefense with respect to guardrails and find that the Secretary failed to establish thefeasibility of safety belts, we do not yet vacate the citation.\u00a0 As we discussed atsome length above, when an employer argues that compliance with a cited standard isinfeasible, the Secretary has the burden of persuasion to establish that a feasiblealternative means of protection existed and the employer did not use it.\u00a0 TheSecretary, of course, was not on notice that he had the burden of establishing a feasiblealternative means of protection and so produced very little evidence concerning anyalternative methods. Similarly, the Secretary was not then on notice that he bore a burdenof proving the feasibility of safety belts.\u00a0 The Secretary will therefore be grantedan opportunity to adduce additional evidence on the feasibility of safety belts and toamend his pleadings to allege that Dun-Par failed to use feasible alternative means ofprotection.Accordingly, the citation is vacated unless theSecretary, within ten days from the issuance of this decision, moves that this case beremanded to permit him to adduce additional evidence on the feasibility of safety belts,or to amend his pleadings to allege that Dun-Par failed to use specific feasiblealternative means of protection, and to adduce additional evidence concerning thosematters.FOR THE COMMISSION Executive Secretary Dated:\u00a0 July 30, 1986RADER, Commissioner, concurring in part anddissenting in part:I join with the majority in holding that theso-called \”impossibility\” defense is more properly cast in terms of\”infeasibility.\”\u00a0 I also agree that when an employer raises theinfeasibility defense it is the Secretary’s burden to plead and prove the alternativemeans of protection that the employer should have utilized.\u00a0 Since we havesubstantially altered the respective burdens of persuasion and going forward with theevidence where infeasibility is raised as a defense, I would add a brief explanation ofhow the defense will work from a procedural standpoint.In a typical case the Secretary will allege inhis complaint that the employer has violated a certain standard.\u00a0 The employer willthen raise the affirmative defense of infeasibility in his answer.\u00a0 At that point theSecretary is on notice that he may have to prove there were alternative measures theemployer could and should have used.\u00a0 Since, as we have noted, the Secretary haspeculiar knowledge of the available alternative means of protection, and especially thoseupon which he may offer evidence at trial, he should amend his complaint to allege thosealternative measures the employer should have taken if, in fact, compliance with the citedstandard is infeasible.\u00a0 In this manner, then, both parties will have fair notice ofthe claims and defenses of the other prior to trial.In the present case we unanimously vacate thecitation under section 1926.500(d)(1) because Dun-Par demonstrated that guardrails weresimply infeasible.\u00a0 Since the Secretary did not know it was his burden to allege andprove alternative means of protection, we agree that the Secretary should be afforded theopportunity to do so now.\u00a0 It is at this point, however, that I part company with themajority.\u00a0 I differ with the majority as to what alternative measures the Secretarymay propose.\u00a0 Under the majority view, once the infeasibility defense is raised theSecretary may advocate any feasible alternative means of protection, even if thosealternative measures are contained in inapplicable standards, or standards that arepreempted under 29 C.F.R. 1910.5(c) by more specific but uncited standards, or arenot specified in any standard at all.Our holding that the burden of pleading andproving alternative measures properly rests on the Secretary is founded on the due processconcept that the employer should have fair notice of exactly what the Secretary allegesthe employer should have done.\u00a0 It is manifestly unfair to require the employer to beprepared to prove the unavailability of all possible alternative measures that could besuggested by the Secretary’s witnesses at trial.\u00a0 It seems to me that if due processprinciples of notice and fairness preclude the imposition of ad hoc alternativemeasures at trial, those same principles preclude the imposition of ad hocalternative measures–i.e., measures not required by a standard or recognized underthe general duty clause–at any time.\u00a0 That the majority will now require theSecretary to apprise the employer of these ad hoc alternative measures in advanceof trial does not change the fact that the employer may still be held in violation of theAct for not taking measures that are not called for in the standards promulgated undersection 5(a)(2) or under the general duty clause, section 5(a)(1).It goes without saying that the Secretary issolely responsible for writing standards and regulations to establish an employer’scompliance duties.\u00a0 In adopting these standards, the Secretary is required to followthe rulemaking provisions set forth in section 6 of the Act, 29 U.S.C. ? 655.\u00a0 Thesestandards primarily define the employer’s duty under section 5(a) of the Act, for it isonly when no standards apply that any employer is required to comply with the Act’sgeneral duty clause, which requires steps against \”recognized hazards that arecausing or are likely to cause death or serious physical harm . . . . \” Section5(a)(1), 29 U.S.C. ? 654(a)(1).\u00a0 See generally 29 C.F.R. ? 1910.5(f); BriskWaterproofing Co., 73 OSAHRC 30\/E1, BNA OSHC 1263, 1973-74 CCH OSHD ? 16,345 (No.1046, 1973).Section 5(a) reflects a scheme of regulationintended to define and limit the duties of employers.\u00a0 In adopting subsection5(a)(2), Congress rejected the Walsh-Healey Act’s general criterion of \”unsanitary orhazardous or dangerous\” and made standards the primary focus of an employer’sduty.\u00a0 American Can Co., 82 OSAHRC 5\/A2, 10 BNA OSHC 1305, 1312, 1982 CCH OSHD? 25,899, p. 32,415 (No. 76-5162, 1982).\u00a0 Although Congress stated a general duty insubsection 5(a)(1), it intended that that provision operate only when a standard did not.\u00a0 Congress also made the general duty clause more limited than the Walsh-Healey Act’sgeneral criterion, for it limited the employer’s duty to avoiding only\”recognized\” hazards that are \”causing or likely to cause death or seriousphysical harm,\” and to taking feasible steps against them.[[19]]The majority’s \”available alternativeprotective measures\” doctrine is out of step with this scheme.\u00a0 The measures itrequires need not be those described in the standard found to have been violated, andcould well be measures that are only specified in inapplicable or pre-empted standards, ornot required by the standards at all.\u00a0 This effectively expands the compliance dutiesimposed on employers; they are required to comply with standards that do not apply or donot exist, or, stated differently, with requirements that have not been imposed beforehandby the Secretary, whose authority it is to establish or modify standards.\u00a0 See,e.g., Lisbon Contractors, 84 OSAHRC 19\/A2, 11 BNA OSHC 1971, 1974, 1984 CCH OSHD ?26,924, p. 34,500 (No. 80-97, 1984); Schwarz-Jordant Inc., 84 OSAHRC ____, 11 BNAOSHD 2145, 2147, 1984 CCH OSHD ? 26,989, p. 34,714 (No. 81-2738, 1984), rev’d on othergrounds, 777 F.2d 195 (5th Cir. 1985).\u00a0 The majority’s view is based on the ideathat if the employer cannot feasibly comply with the applicable standard he must do\”something.\”\u00a0 The problem with this is that the Secretary’s view of whatalternative measures the employer should take may be different from the employer’s. \u00a0The employer therefore cannot know whether the \”something\” he does is sufficientto comply with the Act until after he has been cited and the citation litigated.The majority’s holding here still leaves asignificant notice problem for employers.\u00a0 To comport with the due process clause ofthe Fifth Amendment to the Constitution, standards must provide employers with fair noticeof their compliance responsibilities.\u00a0 See Dravo Corp. v. OSHRC, 613F.2d 1227, 1232 (3d Cir. 1980), and cases cited therein; Ryder Truck Lines, Inc. v.Brennan, 497 F.2d 230, 233 (5th Cir. 1974).\u00a0 To assure that employers receivesuch notice, standards must not be interpreted to impose duties that their plain meaningdoes not support.\u00a0 See Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5thCir. 1976).\u00a0 Under the majority’s view the duties imposed ad hoc by thealternative measures doctrine may bear no relationship to the plain words of any citedstandard.\u00a0 The employer thus has no fair notice of what it is he must do to be incompliance with the Act until after he is cited for violations.For these reasons, I would not allow theSecretary to impose alternative measures that are not required by any standard or arebeyond the scope of the general duty clause. SECRETARY OF LABOR, Complainant v. DUN-PAR ENGINEERED FORM CO., RespondentOSHRC DOCKET 79-2553 (REMAND)CORRECTED ORDER ON REMANDPursuant to the Review Commission’s Remand Orderof April 27, 1984, the penalty assessment made in the Decision of this Administrative LawJudge November 19, 1980, is corrected and amended to $1,000.A total penalty of $1,000 is assessed for seriousviolation of 29 CFR 1926.500(d)(1) and serious violation of 29 CFR 1926.28(a).DATE:\u00a0 May 30, 1984Paul E. Dixon, Judge, OSHRC SECRETARY OF LABOR, Complainant, v. DUN-PAR ENGINEERED FORM CO., Respondent.OSHRC DOCKET NO. 79-2553DECISION Before:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Commission for review onthe issue of whether the Administrative Law Judge erred in assessing a penalty of $1620for a serious violation of 29 C.F.R. ? 1926.500(d)(1) and 29 C.F.R. ?1926.28(a), allegedin the alternative.\u00a0 The Respondent, Dun-Par Engineered Form Co., was originallycited by the Secretary of Labor for an alleged repeated violation of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ??651-678.\u00a0 The Secretary proposed apenalty of $1620.\u00a0 The judge declined to find the violation repeated, affirminginstead a serious violation of the Act.\u00a0 Section 17(b) of the Act, 29 U.S.C. ?666(b), provides for a maximum civil penalty of $1000 for each serious violation of theAct.[[1\/]]\u00a0 Dun-Par correctly maintains, and the Secretary concedes, that theassessed penalty in this case should not have exceeded $1000.\u00a0 Accordingly, thatportion of the judge’s order assessing a penalty of $1620 for the serious violationaffirmed in Citation No. 1 is vacated. The case is remanded to the Administrative LawJudge for the assessment of an appropriate penalty for this violation.FOR THE COMMISSIONEXECUTIVE SECRETARYDated:\u00a0 April 27, 1984ROWLAND, Chairman, Dissenting:While I agree with the majority that the judgeerred as a matter of law in assessing a penalty in excess of that permitted under the Actfor a serious violation, I dissent from its decision to remand this matter to the judgefor a penalty assessment.\u00a0 In my view, the majority errs in failing to considerRespondent’s arguments that it did not violate the Act in the first instance.Respondent was alleged to have violated 29 C.F.R.? 1926.500(d)(1) for failure to provide perimeter guardrail protection for employeesworking on open-sided floors at heights of approximately 38 and 46 feet or alternativelysection 1926.28(a) for allowing these employees to work without safety belts, lifelines,and lanyards.[[1]]\u00a0 The record, in brief, shows that Respondent was a subcontractorengaged solely in installing and removing formwork for concrete flooring on the worksitein question.\u00a0 The record further shows that Respondent could not have used guardrailsduring a substantial portion of its work because such guardrails would obstruct theformwork.\u00a0 There is also evidence tending to show that safety belts and some of theother means of protecting employees suggested by the Secretary’s inspector also could nothave been used or would have been ineffective to protect employees.\u00a0 Respondent tooksteps to minimize the exposure of its employees by structuring the work such thatemployees spent as little time as possible at the perimeter and worked from the perimetertoward the inside of the building.\u00a0 Finally, Respondent requested that the generalcontractor install guardrails as soon as conditions would permit, normally when theformwork for a particular floor had been completed.On these facts, the judge affirmed the citation,finding essentially that there was some exposure of Respondent’s employees to theunguarded floor perimeters and that some measures could have been taken for theirprotection.\u00a0 Respondent filed a petition for review, contending that the judge’sdecision is not supported by the facts and is contrary to relevant case law regarding theduty of a subcontractor to protect against hazardous conditions which it did not create orcontrol as well as contrary to case law regarding the requirements of section 1926.28(a)and the duty of the employer when compliance with the specific terms of a standard is notpossible.\u00a0 Respondent also disputed the judge’s penalty assessment.Former Commissioner Barnako filed a direction forreview of the judge’s decision, stating as the only issue for review the propriety of thejudge’s penalty assessment.\u00a0 Despite the fact that Respondent filed a brief on reviewrenewing all of its exceptions to the judge’s decision, the majority only considers thepenalty issue.\u00a0 I would not limit review to the penalty assessment.The circumstances of this case plainlydemonstrate that a penalty assessment cannot logically be separated from, and consideredwithout regard to, the merits of the underlying citation.\u00a0 A penalty assessmentnecessarily implies that a violation has occurred, yet no such determination has been madeby the Commission, despite Respondent’s forceful arguments that it did not violate theAct. Moreover, it is well settled that a penalty assessment is based upon the size of thebusiness of the cited employer, the gravity of the violation, the employer’s good faith,and the history of previous violations.\u00a0 J.L. Foti Construction Co., 80 OSAHRC36\/C10, 8 BNA OSHC 1281, 1980 CCH OSHD ? 24,421 (Nos. 76-4429 and 76-5049, 1980).\u00a0Under these criteria, circumstances such as limited duration of employee exposureand the efforts made to protect employees are to be taken into account in assessing anappropriate penalty.\u00a0 E.g., Connecticut Natural Gas Corp., 78 OSAHRC60\/B3, 6 BNA OSHC 1796, 1978 CCH OSHD ? 22,874 (No. 13964, 1978); National Steel andShipbuilding Co., 78 OSAHRC 48\/A2, 6 BNA OSHC 1680, 1978 CCH OSHD ? 22,808 (Nos.11011 and 11769, 1978), aff’d, 607 F.2d 311 (9th Cir. 1979).\u00a0 In this case,however, Respondent also defends against the citation itself by referring to its effortsto limit employee exposure and otherwise to protect its employees.\u00a0 It argues thatsuch matters are relevant to determining the scope of the employer’s duty.\u00a0 Thus,application of the penalty assessment criteria here necessarily will require considerationof factual matters and contentions integrally related to the merits of the citationitself.By refusing to include the merits within thescope of its review, the majority in effect fragments this case despite the fact thatmodern judicial practice encourages the prompt disposition of all claims presented. \u00a0Thus, the Federal Rules of Civil Procedure warrant the broadest possible scope of actionconsistent with fairness to the parties; joinder of claims and remedies is stronglyencouraged.\u00a0 United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966).\u00a0 Thetribunal having jurisdiction over the parties should dispose in one proceeding of allrelated grievances between the parties.\u00a0 Price v. Williams, 393 F.2d 348 (D.C.Cir. 1968); Rolls-Royce, Ltd. v. United States, 364 F.2d 415 (Ct. Cl. 1966).In this regard, I note that although section 10of the Act, 29 U.S.C. ? 659, allows an employer to contest either a citation ornotification of proposed penalty,[[2]] Commission precedent is that a notice of contestfiled by an employer limited to the penalty will nevertheless be construed to include acontest of the citation as well if the employer subsequently indicates that its intent wasalso to challenge the citation.\u00a0 State Home Improvement Co., 77 OSAHRC 216\/A2,6 BNA OSHC 1249, 1977-78 CCH OSHD ? 22,435 (No. 14098, 1977); Turnbull Millwork Co.,75 OSAHRC 16\/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD ? 20,221 (No. 7413, 1975).\u00a0 Thisprecedent implicitly recognizes that normally it is inappropriate to limit considerationonly to the amount of a penalty assessment when a challenge to the underlying citationitself is properly brought before the Commission.\u00a0 In view of the close relationshipbetween penalty assessment and determination of a violation here, the majority errs indenying Respondent the right to be heard on all of its exceptions to the judge’s decision. SECRETARY OF LABOR,Complainant v. DUN-PAR ENGINEERED FORM CO., RespondentOSHRC DOCKET 79-2553APPEARING ON BEHALF OF COMPLAINANT:ROCHELLE G. STERN, ESQ., and EUGENE F. DeSHAZO, ESQ., U. S. Department of Labor, Office ofthe SolicitorAPPEARING ON BEHALF Of RESPONDENT:WILLIAM E. SIMMONS, ESQ.THOMAS M. MOORE, ESQ.Hearing held March 20, 1980, U. S. Court of Appeals Courtroom, Kansas City, Missouri,Judge Paul E. Dixon presiding.STATEMENT OF THE CASEThis is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of1970, contesting a citation issued by the complainant against the respondent under theauthority vested in the complainant by section 9(a) of the Act.\u00a0 The citation allegedthat an inspection of a workplace under the operation and control of the respondentrevealed existence of conditions that violated section 5(a)(2) of the Act, for the reasonthat these conditions failed to comply with certain occupational safety and healthstandards promulgated by the Secretary of Labor pursuant to section 6 thereof.A citation for repeat violation, consisting ofone item, and a citation for other violation, consisting of one item, were issued on May10, 1979, as a result of an inspection made on May 3, 1979, of respondent’s worksite atKansas City and St. Louis Avenues, Excelsior Springs, Missouri, where respondent wasengaged in work as a subcontractor, erecting and tearing down concrete forms.Respondent duly contested the citation and proposed penalty, and upon filing of thecomplaint and answer by the respondent the cause was at issue.CITATION 1Alleged Repeat Violation Item 1\”29 CFR 1926.500(d)(1):\u00a0 Open-sided floors or platforms, 6 feet or more aboveadjacent floor or ground level, were not guarded by a standard railing or the equivalenton all open sides:a) 5th and 6th floors of building, 38 feet3 inches and 46 feet 9 inches, respectively – No perimeter protection provided.\”An abatement date of May 15, 1979, wasestablished, along with a proposed penalty of $1,620.The Standard\”1926.500–Guardrails, Handrails, and Covers(d) Guarding of open-sided floors, platforms, and runways(1) Every opensided floor or platform 6 feet or more above adjacent floor or ground levelshall be guarded by a standard railing, or the equivalent, as specified in paragraph(f)(i) of this section, on all open sides, except where there is entrance to a ramp,stairway, or fixed ladder.\u00a0 The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is moving machinery, or thereis equipment with which falling materials could create a hazard.\”CITATION 2Alleged Other ViolationItem 1\”29 CFR 1926.450(a)(9):\u00a0 The side rails of ladder(s) did not extend more than 36inches above landing(s):a) Access ladder to 6th floor – Eight (8) foot step ladder even with 6th floorlevel.\”An abatement date of May 15, 1979, wasestablished, with a proposed penalty of $0.The Standard\”1926.450–Ladders(a) General requirements(9) The side rails shall extend not less than 36 inches above the landing.\u00a0 When thisis not practical, grab rails, which provide a secure grip for an employee moving to orfrom the point of access, shall be installed.\”The complainant, through its complaint, allegedin the alternative that respondent was in violation of the standard published at 29 CFR1926.28(a) and plead the violation to assert it as a serious violation.\”1926.28–Personal Protective Equipment(a) The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for using such equipment to reduce the hazards tothe employees.\”At the commencement of the proceeding,complainant moved to add an allegation to his complaint alleging violation of 29 CFR1926.450(a)(9), which had been originally charged in the citation and which complainantomitted from its complaint based on the belief that respondent had failed to deny theallegation in its notice of contest.Respondent argued against the addition of theallegation to complainant’s complaint.\u00a0 The Judge reserved ruling on the basis of thefile record, wherein be found that the notice of contest and answer contained an apparentgeneral denial as to all allegations made by the complainant.\u00a0 The Judge now rulesthat the amendment was appropriate, in that respondent was put on notice by the originalcitation 2 issued by the complainant, and that the complainant’s failure to include thecharge in its complaint was based on either a misunderstanding of respondent’s position orcarelessness in preparation, and that respondent did not demonstrate any substantial ormaterial prejudice by the complainant’s failure to plead the allegation in his originalcomplaint.THE EVIDENCEDun-Par is a corporation that has its principal office and place of business located at9808 East 87th Street, Raytown, Missouri.\u00a0 On May 3, 1979, Dun-Par maintained aconstruction jobsite on a high-rise building at Kansas City and St. Louis Avenues inExcelsior Springs, Missouri.\u00a0 On that construction project, Dun-Par was one of fiveor six different employers working on the jobsite on May 3, 1979, the date the complianceofficer inspected the project.Dun-Par is a specialty subcontractor, whicherects the forms for reinforced concrete decks.\u00a0 The two principals of the companyhave sixty years of construction experience between them, with the last 22 years in thisspecialized forming business.\u00a0 Since its inception and up until the time of May 3,1979, Dun-Par had successfully formed 25 million square feet of reinforced concreteservice and completed over 500 projects in Missouri, Kansas, Colorado, Iowa, Wyoming,Oklahoma, Texas and Louisiana.Respondent’s method of forming for concrete poursconsisted of using 16-foot dimension timber to form for the concrete decks of thehigh-rise building.\u00a0 The vertical shores were 4 by 4’s with ellis clamps holding two4 by 4’s together.\u00a0 The forms were erected on a horizontal 4 by 6 ledger tacked ontop of a 4 by 4, which was raised with another 4 by 4, then being slipped under the otherend of the 4 by 6 ledger.Sixteen feet over from the two 4 by 4’ssupporting the 4 by 6 ledger, two additional shores supporting a ledger were raised and ahorizontal 4 by 4 runner was intact between the two ledgers to tie all the shores andledgers together.\u00a0 Intermediate 4 by 6’s and 4 by 4’s were then raised and affixed tothe framework with X-bracing as a stabilizer being nailed to the vertical supports.When completed, a gridwork form was erected forplywood to be nailed on the top so that the concrete could be poured for the next floor.\u00a0 The forming process for one floor, such as the seventh floor, could not be begun byDun-Par until the concrete for the floor below, the sixth floor, was completely cured, andthen the forms on the sixth floor stripped or wrecked out.\u00a0 The form work was startedat one end of the building, and employees worked across the building bringing twoperimeters of the floor down the building at the same time.The job in question consisted of a proposedconstruction of a building 11 stories high, plus the roof.The vertical shores on the perimeter of thebuilding leaned outward at an angle, so that a 4-foot wide walkway around the floor abovecould be erected. These vertical shores angled outward, extendingbeyond the perimeter edge of the building, and are called leaners.The perimeter horizontal 4 by 6 ledger on top ofthe leaners was approximately 10 inches to 14 inches outside of the perimeter of the deckbeing worked from, as it was angled outward from the floor horizontally 1 foot for each 8feet of vertical height.It is respondent’s contention that it was notpossible for perimeter guardrails to be erected to protect the perimeter edge of the floorbeing worked from by respondent’s employees because of the way the leaners angled outward.\u00a0The leaners could not have been erected if a perimeter guardrail was in place.On top of the workform itself, it was notpossible to erect a guardrail until the plywood was nailed onto the shoring, because therewas nothing to which a guardrail could be attached until the plywood was nailed down.After Dun-Par’s employees had nailed the plywoodto the top of the form work, respondent’s employees’ work on the floor to be formedceased, and respondent’s employees left the construction project, because there was nomore work for respondent’s employees until the concrete had been poured and cured and itwas time to strip or wreck the preceding floor and set up forming for the next floor.It was respondent’s president’s testimony that onthe day of the inspection on the fifth floor respondent’s employees were stripping theform work, which had been erected so that the concrete of the sixth floor level could bepoured.\u00a0 To strip the form work, a 16-foot square section in the middle of the floorwas first stripped so that there would be an open area in which other material beingstripped on the floor could be stacked.\u00a0 When the material on the floor was dropped,employees first pulled it back to the middle 16-foot square section to disassemble theform work and then to stack it.To strip the form work, the intermediate verticalshores supporting the horizontal ledgers were removed, leaving only the end 4 by 4 shoresto support the ledgers.\u00a0 One of the end 4 by 4’s was then jerked out from underneathtwo 4 by 6 ledgers and an entire 16-foot section of form work was then dropped to thefloor where employees pulled it to the center section, disassembled it and stacked it.\u00a0The vertical shores were only wedged in place, and were thus loose and reasonablyeasy to pull down in a controlled manner.Instructions were given to respondent’s employeesthat when stripping to work toward the interior of the floor, because the perimeter of thefloor is dangerous, and to avoid working near the perimeter as much as possible. Employees of respondent never worked toward theperimeter of the floor when in close proximity to it; instead, they always work towardsthe inside of the building by standing, as instructed, further away from the perimeters ofthe floor and the vertical floor being pulled out.If guardrails were in place at the time of thestripping operation they would be broken when the forms were pulled out.After the entire stripping operation on a flooris completed, respondent’s employees are not on that floor again, as they either leave thearea to go to another job or another area of the project to work.It was the deposition testimony of respondent’switness engineer Don Marvin, with an extensive background in commercial and industrialconstruction, that it was not normal and customary in respondent’s forming work forguardrails or other equivalent barriers to be in place on the floors from whichrespondent’s employees, or employees of other specialty contractors doing identical work,were erecting their form work, because it is impossible for the leaners to be erected.\u00a0If perimeter guarding of any kind is present on those floors, it becomes necessaryfor employees to work outside the perimeter of guarding to strip the form work, andresults in the perimeter guarding getting smashed by the forms being stripped.Compliance officer Carl Kinney, with some 20years experience in construction and related fields, conducted his inspection on May 3,1978, of respondent’s work activities at a jobsite located at Kansas City Street and St.Louis Street in Excelsior Springs, Missouri, where respondent was operating as asubcontractor for the general contractor V. C. DeCarlo.At the time of the inspection, the fifth andsixth floors of a building were under construction, with no perimeter guardrails at thefifth and sixth floor level.\u00a0 Kinney also noted that at the fifth floor level therewas an 8-foot step ladder gaining access to the sixth floor from the fifth floor which didnot extend above the floor level 36 inches.Kinney, during the course of his inspection, wasaccompanied by respondent’s foremen Parkin and from Parkin and interviews with threeemployees determined that there was a total of eight employees at the jobsite. After observing respondent’s employees workingthe fifth floor, Kinney went to the sixth floor where he did not observe any ofrespondent’s employees performing work at the time of his inspection.Kinney could not state with certainty whetherrespondent’s work activity consisted of placing or wrecking out forms at the time of theinspection. Kinney identified photograph C-3 an having beentaken on the sixth floor, showing no perimeter guarding.\u00a0 Exhibit C-4 was again onthe sixth floor taken to the northeast, depicting no perimeter guarding.\u00a0 Exhibit C-5was identified as a view from the ground up on the east side of the building showing thefifth and sixth floors without perimeter guarding, with guardrails being built on thethird and fourth floor level.\u00a0 It also depicted a 4-foot outrigger platform thatextended out from the fifth floor used to hoist materials raised by crane which did nothave any guardrails.\u00a0 The platform is connected to one of the permanent parts of thebuilding and also serves as catch platform for material as it comes down.\u00a0 PhotographC-6 was identified as depicting the same outrigger platform extending out from the fifthfloor from a different angle.Exhibit C-7 was described by Kinney as notrelating to respondent, but rather showed that the general contractor had started puttingup guardrails on the fourth floor level.Photograph C-8 was described by Kinney asrepresenting the ground level showing debris and 4 by 4’s, things that people would fallon if they fell off the edge of the building.Kinney made no measurements from the fifth to thesixth floor, but the distances he obtained were from the general contractor’s blueprints.Kinney determined that from the first to thesecond floor level was 12 feet, 6 1\/2 inches, with the other floors as 8 feet, 6 1\/2inches, from floor to floor.From the fifth floor level to the ground was 38feet, 6 inches; from the sixth floor level to the ground was 46 feet, 3 inches.Kinney observed forms set for the pouring ofconcrete, and also observed shores out on the platform in the course of his inspection.He also observed employees on the fifth floorthat would have access to the unguarded edge of the floor.Kinney’s inspection was prompted by a complaintthat a cement finisher had slipped from the sixth floor, however, was able to catch ashore on his way down and was not injured.During the course of Kinney’s walkaround he had occasion to speak to respondent’s foremanParkin, its employees Ron Fisher, Rubin Sendejas and employee Wright. Kinney was of the opinion that based upon hisexperience in construction, appropriate abatement would have been guardrails or perimeterguarding, and that it was feasible to construct them at the jobsite. Kinney further testified as to his observationthat no employees were wearing any other type of personal protective equipment.Kinney was of the opinion that a fall from either38 or 46 feet would result in multiple fractures and probable death.Kinney further testified that he recommended thata repeated citation be issued respondent based upon a prior citation issued respondent fora violation of 29 CFR 1926.500(d)(1), involving two employees working at the edge of afloor (roof) above the fourth floor level where there were unguarded opensided floors witha drop of approximately 48 feet to ground level.The citation was identified as Exhibit C-2, inwhich the proposed penalty had been paid.Regarding the current citation, Kinney testifiedthat taking into consideration the size, history and good faith of respondent he arrivedat a proposed penalty of $1,620.Kinney also testified as to hisother-than-serious citation 2, based upon a stepladder which did not extend above thesixth floor level 36 inches, it being his observation that the stepladder was the onlyaccess to the sixth floor, and that there was evidence of forming work being performed onthe sixth floor, although he did not observe any of respondent’s employees utilizing theladder.It was Kinney’s observation that because thesixth floor level had columns extending out of it with no roofing material and hadstairwells extending up to the level that it was a floor and not a roof, along with theassertion of respondent’s representative that the total construction was going to consistof 11 stories.From Kinney’s questioning of the foreman and thethree employees about personal protective equipment consisting of safety belts, he wasadvised that their use was impractical.While Kinney did not see any of respondent’semployees working near the perimeter during the inspection, he was of the opinion that theemployees had access to the perimeter of level five.\u00a0 He was advised by respondent’sforeman at the opening conference that there were employees of respondent working bothfifth and sixth levels.\u00a0 Kinney’s personal observation was that there were shores andforming work on level six and evidence of respondent’s employees wrecking out level fiveon the northeast corner.\u00a0 It was Kinney’s opinion that if it were impossible to erectguardrails, due to the respondent’s allegation that there was nothing to attach guardrailsto, that other alternative means could be used to protect respondent’s employees, such aslanyards, outriggers with nets, catch platforms, or the use of a cable strung around theperimeter between the angled outermost vertical shores and the concrete or steel columnsalong the perimeter.Generally, on respondent’s work project,materials used in the forming operation are stacked on a platform extending out from theedge of the building (Exhibit C-5).\u00a0 When respondent’s employees check for shoringthat might be slipping or forming that might be sagging, employees must work near the edgeof the platform.Respondent’s president acknowledged thatrespondent’s work is the most dangerous job on the construction project, and respondenthas a twice a year review of its safety program with its foremen as to how things areperformed, new regulations and individual conversations with the various foremen, who inturn have regular toolbox meetings on the jobsite, and hold discussions on safety.In addition, respondent has a policy of notputting its new men on perimeter shores, but allowing them to gain experience working witholder men, with the additional policy of having the foreman work up from the ranks with atleast five years experience. Respondent estimates that 90 percent of its employees areregular employees.\u00a0 Respondent maintains that it has had no deaths from falling fromunguarded perimeters since 1958, nor any major injuries. Respondent does not compute the guardrails in itsbids on contracts, stating that it was industry practice that the general contractorprovided guardrails.\u00a0 In addition, respondent’s president acknowledged it did notwish to erect guardrails because there were so many required throughout the whole depth ofa job.Respondent’s president denied that erectingnetting, as suggested by compliance officer Kinney, was possible, although he gave noreasons therefor. Respondent employs a fulltime safety officer, whois a professionally registered engineer in Missouri, who inspects the jobs for conformingwith regulations and setting up respondent’s safety program, previously described, alongwith sending its employees to construction industry safety programs and its foreman toOSHA schools put on by the builder’s association.\u00a0 Respondent also maintains safetybelts for use of its employees where practical. Respondent’s president Dunn testified withrespect to the outer perimeter of vertical shores, which are installed on an angle, notingthat at a height of approximately 3 1\/2 feet from floor level there is a space ofapproximately 3 1\/2 inches between the column and the shore.It was Dunn’s testimony that respondent could not string cable through the space, for thereason that it would prevent work activity and its employees would have to work outside ofthe cable.Dunn reiterated that respondent could not put upa guardrail, even on the walkway that is erected following the completion of the shoring,as it would be the responsibility of the general contractor who would put the edge formaround the building, and along with various other subcontractor work, such as the steelerectors placing reinforcing steel, mechanical people setting ducts and chases formechanical work and electrical people.Dunn denied ever having seen any outrigger nets,and would not know how they could be connected to permanent parts of the structure.Dunn was of the opinion that the installation ofa cable around the perimeter would make the job of erecting vertical shoring morehazardous to his employees. Dunn was referenced to a fatality that happenedafter the current citation in Hutchinson, Kansas, where a man was killed falling from theperimeter of a job on which respondent was doing the forming.After the OSHA investigation, guardrails wereinstalled around the perimeter, but Dunn was not personally knowledgeable about theguardrails, although he subsequently testified that at the jobsite where the fatalityoccurred, in the interest of completing the job, respondent put the guardrails on theroof, which was the final floor.By posthearing deposition, Don Marvin, a graduatecivil engineer, testified on behalf of respondent.With reference to the cited jobsite, namely theColony Plaza apartment project, Marvin identified DeCarlo as the general contractor, withthe arrangements at the time of the contract being that DeCarlo was required to constructthe edge forms or spandrel beams and not the respondent.The installation of handrails and guardrails were to be the general contractor’sresponsibility, as it was Marvin’s opinion that they would only protect DeCarlo’scarpenters, laborers, cement finishers, electricians, plumbers and rebar installers.Marvin was also of the opinion that when theperimeter shores where kicked out they would destroy or knock out any guardrails thatwould have been erected. Marvin characterized the Excelsior Springs job asa typical forming job done by respondent.\u00a0 He verified that respondent had no costfor handrails or guardrails considered in its bid to DeCarlo.It was his opinion that based on his work on 20high-rise projects, it was not possible to erect handrails or guardrails around theperimeter, although he felt it was possible to string cable between the outer shores, butthat the workmen would have to work outside of the cable, with respect to the perimetervertical shores.To his personal knowledge, he was not aware ifDeCarlo ever did in fact erect guardrails on levels five and six of the Colony Plazaproject.He further supported respondent’s position thatrespondent could not construct guardrails or handrails until the plywood forming wasconcluded, in that there was nothing to attach the guardrails to, and further that oncethe plywood was down the Dun-Par employees would be finished and would move on vacatingthe premises for the other trades.Posthearing testimony of Rubin Sendejas, acarpenter who has been employed by respondent on different occasions, developed thatSendejas had been employed as a carpenter on the Excelsior Springs project at the time ofthe inspection, giving rise to the citation.It was his recollection that he worked on boththe fifth and sixth levels of the building under construction, and testified that wheneverhis duties required he had to work on the edge of the building.There are times he would not work on the edge ofthe building, and at other times he might work on the edge of the building for maybe ahalf-an-hour or 15 minutes.Sendejas explained that on every job for everycompany he had worked for his duties would require him to work near the edge of theperimeter in putting up the next level.\u00a0 On the Excelsior Springs job, it wasSendejas’ testimony that there were cables at times around the perimeter of the job, andon the day of the inspection the cables were probably laying on the ground. Sendejas was interviewed by the complianceofficer, who prepared a statement for him to sign, which was identified as Exhibit C-9. On the day of the inspection, he wasn’t given any particular instructions; however, whenhe started for respondent he was shown the type of work he was to do and how to do it, theinstructions being given to him by his foreman.Sendejas described his interview by thecompliance officer as taking place on October 3, 1979, at which time questions were on asheet which were asked of him and thereafter signed by Sendejas. Sendejas was somewhat ambivalent about hisstatement on the one hand, stating that it was not completely and totally accurate, and onthe other hand stating, \”I wrote down the answers, I read them, and it was prettymuch what I said so I signed the paper.\”Following Sendejas’ interview by complianceofficer, he was then required to answer questions by his boss and superintendent.Sendejas described the respondent’s forming workas essentially the same as done by other companies that he has worked for. During his timeof employment by respondent he never knew of anyone getting hurt.It is respondent’s practice to take a new anduntrained or inexperienced employee and have him work with more experienced employees oran older person or journeyman to be trained.Sendejas has never been denied use of a safetybelt by respondent; however, Sendejas expressed the opinion that safety belts were toocumbersome for the type of work he does as a carpenter.\u00a0 He noted that he carriesapproximately 25 pounds of tools, bags and nails, which along with the safety belt andhaving to climb up and down ladders results in the safety belt getting in the way, alongwith creating a tripping problem.Sendejas described the vertical shores at theperimeter of the floor as \”leaners\”, which are erected at an angle in order toafford an area for people on the upper level to walk upon to put the edge forms on thatlevel.It was Sendejas’ opinion that it is not possibleto work on the perimeter erecting shoring and to have a guardrail.\u00a0 Further, that acable is in the way of leaning something out past the edge or perimeter of the level.Sendejas also ventured the opinion that untilplatforming is laid on the floor and before the concrete is poured there is nothing toattach a guardrail to, and that once the platform is laid the job is finished and theguardrail would be of no benefit to respondent’s employee.DISCUSSIONThe instant case involving respondent strongly parallels in many respects the decisionissued by the Review Commission approximately a month and a day preceding this hearing; Secretaryv. Dun-Par Engineered Form Company, Docket 16062, February 21, 1980, CCH OSHD ?21,069 (on appeal, May 1980, 10th Circuit, Court of Appeals, Docket 80-1401).This matter will be treated in order of thedefenses advanced by respondent in its brief.Respondent alleges that it did not violate thestandard published at 29 CFR 1926.500(d)(1), on the basis that there were no employees onthe sixth floor.Respondent relies heavily upon the complianceofficer’s lack of observation of employees performing work at the sixth floor level of theconstruction site. The defense cannot stand on the basis of therecord evidence; namely, evidence of work having been performed on the sixth floor level,admissions by respondent’s foreman Parkin to the compliance officers that employees wereworking on the fifth and sixth levels and deposition testimony of respondent’s employeeSendejas that he had worked not only the fifth and sixth floor levels, but he also workedat the perimeter.The fact that there was no perimeter guarding isapparent by demonstrative evidence introduced by the compliance officer consisting ofphotographs, along with his personal observation of no perimeter guarding, and inparticular, the testimony of respondent’s managing officer that guardrails were not bid inhis dealings with the general contractor, nor were they contemplated, and further thatrespondent did not wish to erect guardrails on this particular project.Respondent relies heavily upon an argument ofimpossibility of compliance, drifting back and forth between work which has to be donewithin the perimeter and work which has to be done without the perimeter in theestablishment of leaners to support a walking surface at the next level being erected.\u00a0In sequential fashion, respondent alleges it could not establish guardrails at thevarious levels until such time as plywood work was completed for the pouring of concrete,at which time guardrails would be of no benefit to its employees, that outriggers or netscould not be used without giving the reason therefor, and that cable was used at timeswith the necessity of employees to work outside of the cable.\u00a0 No argument was raisedas to the compliance officer’s suggestion that it would be possible to establish catchplatforms to afford the necessary protection.From a viewing of the testimony and the actual demonstrative evidence, it must beconcluded that little credibility can be accorded to this entire defense ofimpracticability of attachment of a guardrail.\u00a0 Photographic evidence clearlydemonstrates the existence of a sturdy outrigger, which according to the testimony andevidence of record is used to support the heavy weight of 16 by 4 by 4 shores, both in theestablishment of forms and in the wrecking out of forms to a structural member of thebuilding to serve as access to the work area.It is concluded by this Writer that theconstruction industry is not so primitive a trade as to be able to erect a substantialoutrigger appendage to a structural member of a floor being worked, and at the same timecannot erect a guardrail to the same building member.Clearly the erection and maintenance of thisoutrigger for work activity within the perimeter is supportive of the compliance officer’stestimony that outriggers could be established with netting or catch platform withguardrails to afford the exposed employees the protection in lieu of a guardrail.The exposure of employees was clearlydemonstrated by the testimony of Sendejas of the necessity of working the perimeter to setup the leaners and further testimony that it was necessary to be at the perimeter to checkfor sagging during the concrete pour.The hazard was a serious one, in that a fall fromthe perimeter would be from a distance of 38 feet, 3 inches, from the fifth floor and 46feet from the ninth floor, and would certainly result in multiple fractures or death.\u00a0Respondent’s contention of impossibility of compliance is therefore rejected.Respondent’s third line of defense is the subcontractor defense, claiming that respondentis a noncreating noncontrolling subcontractor on a multi-employer jobsite who expendedreasonable efforts and took realistic measures to protect its employees from a conditionfor which the general contractor was responsible.\u00a0 Citing Secretary v.Anning-Johnson Co., Docket 3694\/4409, 76 OSHRC 54\/A2; BNA 4 OSHC 1193; CCH OSHD ?20,690, and Secretary v. Grossman Steel & Aluminum Corporation, Docket 12775,76 OSHRC 54\/D9; BNA 4 OSHC 1185; CCH OSHD ? 20,691. Having rejected respondent’s contention ofimpossibility of performance, it is clearly demonstrated by the evidence of record thatduring the installation and stripping out of the shores that respondent’s employees wereexposed to and had access to the perimeter of the open-sided floors and the hazard offalling from 38 to 46 feet.\u00a0 So too, as was found in the price case, respondent hadthe sole responsibility for constructing the form work, and its employees were exposed tothe hazard.\u00a0 Respondent, through its on-site foreman and its managing officer’spolicy, was aware there was no perimeter protection on the fifth and sixth floor levels.\u00a0 Nor, did respondent demonstrate, other than its over-all safety program, which ismeritorious, that it made any reasonable efforts to abate the violation.It must be noted that respondent, through itsprevious citation introduced into the record and commentary in the decision of Secretaryv. Dun-Par Engineered Form Company, supra., that it was the subject ofperimeter guarding charges on prior occasions and evidenced through its testimony andknowledge of the requirements of perimeter guarding.Therefore, the Anning-Johnson\/Grossman, supra.,defense is rejected. Respondent’s argument against the amendment of the citation by the alternative allegationof serious violation of 29 CFR 1926.28(a) is also rejected.The pleading of the alternative violation of thisparticular standard is no more than buttressing another modality of protection foremployees exposed to perimeter work, as described by the compliance officer.The evidence is clear and unequivocal that therespondent’s employees do not spend all of their time climbing ladders and performingduties within the framework of the forming.\u00a0 In fact, it is quite specific that alesser amount of time is performed on the perimeter work.\u00a0 For those lesser periodsof time that employees would be performing perimeter work the utilization of a safety beltwould afford the necessary fall protection from either 38 feet or 46 feet.With respect to respondent’s argument as to theissue of \”feasibility\” and its extensive case citation, the Review Commissionhas clearly stated the complainant’s requirements under an allegation of 29 CFR1926.28(a); Secretary v. S & H Riggers & Erectors, Inc., Docket15855, 79 OSHRC 23\/A2; BNA 7 OSHC 1260; CCH OSHD ? 21,261, 23,480:\”Nonetheless, the standard in this case iswritten in broad terms.\u00a0 Therefore, it is appropriate to place upon the Secretary theburden of establishing employee exposure to a hazardous condition requiring the use ofpersonal protective equipment and identifying the appropriate form of personal protectiveequipment to eliminate the hazard.\u00a0 To the extent that prior Commission decisionshave broadened that burden and require the Secretary to also affirmatively establish thefeasibility and likely utility of the recommended form of personal protective equipment,they are overruled.\”Respondent’s argument as to its nonviolation of29 CFR 1926.450(a)(9), and its reasons given therefor, were also rejected.The exceptions that respondent takes tocomplainant’s pleading of the utilization of a stepladder for access from level five tolevel six referenced an entirely different portion of subpart (1) of 29 CFR 1926.450,wherein the alleged violative standard is contained in the general requirements, whichinclude both metal and wooden ladders, and the distinction made by respondent isinapplicable.The evidence as previously stated of thetestimony of carpenter Sendejas and the foreman’s admissions of work being performed onlevels five and six, and with the stepladder being the only modality of access to thesixth level, a violation has been established in that the ladder did not extend 36 inchesabove the sixth level landing.NATURE OF THE VIOLATIONComplainant alleges respondent in the repeated violation of 29 CFR 1926.500(d)(1), and insupport of its charges relies upon the citation of July 21, 1975, which refers to,\”Two employees working at the edge of the floor (roof) above the fourth floorlevel…\”, with some dichotomy taking place at the hearing regarding the sixth floorlevel of respondent’s project in Excelsior Springs.\u00a0 It is determined that under noform of semantical conjugation can respondent’s work at the Excelsior Springs jobconstitute work on a roof level.\u00a0 The uncontroverted evidence was that there weresupporting columns at the level, stairwells and that the level was a level in progress ofconstruction, as opposed to a completing level; this, in addition to the uncontrovertedevidence that the project was to be an 11 or 12-story project in accordance with its plansand specifications.Therefore, in order to establish a repeatviolation, it is necessary for the complainant to show that at the time of the allegedrepeat violation there is a Commission final order against the employer for asubstantially similar violation.While much detailed testimony was given as to theconstruction problems attendant to the erection of the fifth and sixth floor levels, nosuch testimony was adduced as to what, if anything, would be similar to the constructionof the roof level, and it is not for the Judge to conjure and speculate as to what therequired evidence might be.\u00a0 It is felt that there was a complete lack of proof ofestablishment of the necessary element of a substantially similar violation, particularlywith the long history of the various postures as to what constitutes a roof, and basedupon such uncertainty this Writer would be reluctant to find a repeat violation on theevidence of this record.PENALTYTaking into account the statutory consideration for penalty, it is noted that respondentis of moderate size, has an excellent history, and has an on-going safety programinvolving both its supervisory and hourly workers, and maintains an experienced work forceof carpenters.\u00a0 However mitigating these circumstances are, it is also clearlydemonstrated that respondent has a stated reluctance to establish guardrails and a statedhistory of exposing its employees to unguarded perimeters.\u00a0 Therefore, it is feltthat respondent’s posture regarding guardrails for its employees erecting or stripping outshores overcomes any consideration of mitigation and that the proposed penalty of $1,620should be affirmed.FINDINGS OF FACTBased upon the preponderance of the credible evidence, the following findings of fact aremade:1.\u00a0 Respondent, Dun-Par Engineered FormCompany, is a corporation with a principal office and place of business at 9808 East 87thStreet, Raytown, Missouri; and, at all times mentioned was engaged in concrete formcontracting.2.\u00a0 Respondent employed approximately eight employees at its construction site atExcelsior Springs, Missouri, as alleged by the complainant’s complaint and admitted byrespondent’s answer.3.\u00a0 As the result of an inspection by an authorized representative of thecomplainant, respondent was issued a citation for repeated violation, together with anotification of proposed penalty and a citation for other-than-serious violation pursuantto section 9(a) of the Act.4.\u00a0 The citations and proposed penalty were received by respondent on May 11, 1979.\u00a0 On May 16, 1979, the Area Director received from respondent a notice to contest thecitation and proposed penalty pursuant to section 10(c) of the Act.\u00a0 This notice wasduly transmitted to the Occupational Safety and Health Review Commission.\u00a0 Thecomplainant alleged in his complaint that the citation alleging a violation of 29 CFR1926.450(a)(9) had become a final order of the Commission since the notice of contest didnot address that violation.\u00a0 The respondent’s answer denied the allegation, and thecomplainant moved to amend the complaint to include the violation of 29 CFR 1926.450(a)(9)at the hearing over respondent’s objection, which was overruled.5.\u00a0 Evidence was received establishing the violation of 29 CFR 1926.450(a)(9). 6.\u00a0 Respondent was issued a prior citation alleging a serious violation of 29 CFR1926.500(d)(1) on July 21, 1975, with reference to work being performed at the edge of aroof with lack of guarding.7.\u00a0 Respondent did not contest the citation and notification of proposed penalty, andit became a final order of the Commission by operation of law.8.\u00a0 On the day of the current inspection, compliance officer Kinney observedrespondent’s employees working on the fifth floor of the building under construction.9.\u00a0 Compliance officer Kinney was advised by respondent’s foreman that work had beenperformed on both the fifth and sixth floor levels of said building; that during thecourse of their work in placing shoring for concrete employees of respondent were requiredto perform some of their work near the edge of the fifth and sixth floor perimeters.10.\u00a0 The distance to the ground from the fifth floor level was approximately 38 feet,3 inches, and from the sixth floor 46 feet, 9 inches.11.\u00a0 There was nothing between the fifth and sixth floors to prevent respondent’semployees from falling to the ground level, except for an outrigger platform extendingfrom the fifth floor level.12.\u00a0 In respondent’s operations materials used on the forming work are stacked nearthe edge of the work platform or on an outrigger platform attached to a structural memberof the building.13.\u00a0 Employees are required to work near the perimeter of the floor level in order tocheck for slipping or sagging forms.14.\u00a0 Guardrails, cables, catch platforms, outriggers and nets, and safety belts arefeasible methods of protecting unguarded perimeters of floors in the shoring operations.15.\u00a0 Respondent’s supervisory personnel was on the jobsite at the time of theinspection and was aware of the lack of perimeter guarding.16.\u00a0 Respondent’s supervisory personnel was also aware that respondent’s employeeswere working on the fifth and sixth floors without perimeter guards or other personalprotective equipment.17.\u00a0 A fall from either perimeter at a height of 38 feet, 3 inches, or 46 feet, 9inches, exposed respondent’s employees to the hazard of serious injury or death.18.\u00a0 On the day of the inspection there was a wooden stepladder between the fifth andsixth floor levels, which was the only means of access from the fifth to the sixth floorlevel.19.\u00a0 The stepladder did not extend 3 feet above the adjoining level, and exposedrespondent’s employees to an approximate 8-foot fall, which did not constitute a serioushazard.CONCLUSIONS OF LAW1.\u00a0 Respondent is an employer within the meaning of the Act.2.\u00a0 Jurisdiction over the parties and the subject matter herein is conferred upon theOccupational Safety and Health Review Commission by section 10(c) of the Act, and thecitations were issued in accordance with section 9(a) of the Act.3.\u00a0 Respondent violated section 5(a)(2) of the Act by failing to comply with theOccupational Safety and Health Act of 1970, as alleged in the citations and complaint,being in violation of 29 CFR 1926.500(d)(1), violation of 29 CFR 1926.450(a)(9), andalternatively the violation of 29 CFR 1926.28(a).4.\u00a0 With respect to respondent’s violation of 29 CFR 1926.500(d)(1), it is found thatit is a serious violation and not a repeat violation for failure of proof.ORDERBased upon the above findings of fact and conclusions of law, it is hereby ORDEREDthat citation 1 is affirmed for serious violation of 29 CFR 1926.500(d)(1) and seriousviolation of 29 CFR 1926.28(a), and citation 2, other-than-serious violation of 29 CFR1926.450(a)(9).A total penalty of $1,620 is assessed for theserious violations.\u00a0 No penalty is assessed for the other-than-serious violation of29 CFR 1926.450(a)(9).DATE:\u00a0 November 19, 1980Paul E. Dixon, Judge, OSHRCFOOTNOTES: [[1\/]] That standard provides:Every open-sided floor or platform 6 feet or moreabove adjacent floor or ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, exceptwhere there is entrance to a ramp, stairway, or fixed ladder.\u00a0 The railing shall beprovided with a standard toeboard wherever, beneath the open sides, persons can pass, orthere is moving machinery, or there is equipment with which falling materials could createa hazard.[[2\/]] Because the court’s ruling on this issueis the \”law of the case,\” I express no views on the matters discussed inChairman Buckley’s separate opinion.\u00a0 See, e.g., In re ProgressiveFarmers Ass’n, 829 F.2d 651, 655 (8th Cir. 1987), cert. denied sub nom. SouthCentral Enterprises, Inc. v. Farrington, 108 S.Ct. 1574 (1988) (\”law of thecase\” doctrine).[[3\/]] The Commission also concludes that Dun-Parhas proven that safety belts were not a feasible or available alternative to guardrails.\u00a0 In the Commission’s prior decision, the Commission said:After weighing the testimony presented at thehearing and considering the practical realities of the workplace, we find that theSecretary failed to establish that safety belts were feasible.\u00a0 The Secretarypresented no evidence concerning how the safety belts would actually be used at theworkplace beyond the compliance officer’s bare claim that safety belts were feasible.\u00a0 On the other hand, Dun-Par presented specific testimony which established thatsafety belts were infeasible.\u00a0 Mr. Dunn, who had much more experience with concreteformwork than the compliance officer, explained the need for Dun-Par workers to movefreely about the work area, often moving up and down ladders.12 BNA OSHC at 1960, 1986-87 CCH OSHD at p.36,028.\u00a0 Dunn testified that, as a result of this need for mobility, the form crewscould not have stripped the forms while tied off with safety belts.\u00a0 Also, acarpenter on Dun-Par’s form crews on this project, Sendejas, testified that safety beltstied off by lines to secure points would have been cumbersome and would have interferedwith the normal work.\u00a0 He testified that they would have created tripping hazards forthe wearer and other employees working in the area.The evidence on safety belts has beenre-evaluated in light of the court’s burden of proof.\u00a0 Dun-Par rebutted thesuggestion that safety belts were feasible with specific and credible evidence that provedtheir infeasibility.\u00a0 The essential evidence is that quoted above from theCommission’s previous decision.\u00a0 Secretary failed to prove a violation of ?1926.28(a) under the court’s criteria.\u00a0 (The Secretary alleged the ? 1926.28(a)violation in the alternative, based on the failure to use safety belts.)Perimeter cables would have been subject to manyof the same feasibility constraints as complete guardrails.\u00a0 However, there was someevidence that these problems could have been overcome.\u00a0 In light of the Commission’sconclusion that Dun-Par’s defense fails on other grounds, it is unnecessary to decidewhether safety cables would have been feasible.[[4\/]] It is unnecessary to consider whether thisviolation should be classified as repeated within the meaning of the Act.\u00a0 OSHAoriginally classified this violation as repeated, and thus subject to enhanced penaltiesunder 29 U.S.C. ? 666(a).\u00a0 However, the judge rejected that classification andaffirmed only the allegation that the violation was serious.\u00a0 The properclassification of the violation was not included as an issue in the direction for review,and the Secretary does not ask for a repeated classification on review.[[1]] The standard provides:? 1926.500 Guardrails, handrails and covers.* * *(d) Guarding of open-sided floors, platforms, and runways.(1) Every opensided floor or platform 6 feet or more above adjacent floor or ground levelshall be guarded by a standard railing, or the equivalent, as specified in paragraph(f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp,stairway, or fixed ladder.\u00a0 The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is moving machinery, or thereis equipment with which falling materials could create a hazard.[[2]] The standard provides:? 1926.28 Personal protective equipment.(a) The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardous conditionsand where this part indicates the need for using such equipment to reduce the hazards tothe employees.See L.E. Myers Co., 86 OSAHRC, 12BNA OSHC 1609, 1986 CCH OSHD ? 27,476 (No. 82-1137, 1986), pet. for review filed,No. 86-3215 (6th Cir. March 14, 1986).[[3]] A subsidiary question in this case is whether the Commission has jurisdiction toaddress the merits of the citation items.\u00a0 After Judge Dixon’s decision, Dun-Parpetitioned for review on several issues.\u00a0 However, former Commissioner Barnakodirected review on the sole question of the penalty.\u00a0 The Commission found thepenalty assessment was in error and remanded the case to Judge Dixon.\u00a0 Dun-ParEngineered Form Co., 84 OSAHRC, 11 BNA OSHC 1912, 1984 CCH OSHD ? 26,883 (No.79-2553, 1984). On remand, the judge lowered the penalty.\u00a0 Dun-Par again petitionedfor review of several issues, not directed for review by former Commissioner Barnako,including the feasibility of guardrails and safety belts.\u00a0 The Secretary argues thatthe Commission cannot review the merits of this citation because the citation items becamefinal orders of the Commission in 1980, when Dun-Par petitioned for review of severalissues, and only the question of the penalty was directed for review.As the Commission noted in Hamilton Die Cast,Inc., 86 OSAHRC, 12 BNA OSHC 1797, 1986 CCH OSHD ? 27,576 (No. 83-308, 1986), whenthe Commission directs any portion of a case for review, the entire judge’s report isbefore the Commission, unless a citation item is specifically severed and made a finalorder under Rule 54(b) of the Federal Rules of Civil Procedure. Therefore, when formerCommissioner Barnako directed only the question of the penalty for review, the itemalleging that Dun-Par violated sections 1926.500(d)(1) and 1926.28(a) did not become thefinal order of the Commission.\u00a0 The issues of the feasibility of guardrails andsafety belts could have been addressed in the Commission’s previous decision and are nowproperly before the Commission on Dun-par’s second petition for review.[[4]] Donovan v. Williams Enterprises, 744 F.2d 170, 178 (D.C. Cir. 1984); FaultlessDivision, Bliss & Laughlin Industries Inc. v. Secretary of Labor, 674 F.2d1177, 1189-90 (7th Cir. 1982); Southern Colorado Prestress Co. v. OSHRC, 586 F.2d1342, 1351 (10th Cir. 1978); A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 951-2(1st Cir. 1978).\u00a0 See also United Steelworkers v. Marshall,647 F.2d 1189, 1270, 1273 (D.C. Cir. 1980); Diebold, Inc. v. Marshall, 585 F.2d1327, 1333 (6th Cir. 1978); Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d439, 440-1 (5th Cir. 1977).Indeed, it has been noted that, \”[t]o impose on an employer the burden of provingimpossibility is to impose a burden that is unachievable,\” American Luggage Works,10 BNA OSHC at 1686, 1982 CCH OSHD at p. 32,798 (Rowland, Chairman, dissenting).[[5]] M. Rothstein, Occupational Safety andHealth Law ?125 (2d ed. 1983),[[6]] S. Rep. No. 91-1282, 91st Cong., 2d Sess. 6 (1970), reprinted in Committee onLabor & Public Welfare, Legislative History of the Occupational Safety andHealth Act of 1970, 146 (Comm. Print. 1971) (\”However, as a recent Department ofLabor study has shown, a large proportion of the voluntary standards are seriouslyout-of-date.\”)[[7]] Remarks of D. Peyton, quoted in C.Musacchio, \”The Power Press Flap:\u00a0 Will it Reshape Standards Setting?,\”\u00a0 35 Occupational Hazards 107, 108 (Oct. 1973).\u00a0 See generally R.Hamilton, \”The Role of Nongovernmental Standards in the Development of MandatoryFederal Standards Affecting Safety or Health,\” 56 Texas L. Rev. 1329, 1346 n. 40,1350 & n. 52, 1449 (1978) (hereinafter cited as \”Hamilton\”).\u00a0 Seealso M. Rothstein, \”OSHA After Ten Years:\u00a0 A Review and Some ProposedReforms,\” 34 Vanderbilt L. Rev. 71, 73-74 (1981) (\”Most of the difficulties withnational consensus standards can be traced to the fact that they were privately adopted,optional measures.\u00a0 Many … were poorly drafted, [or] extremely general ….Other[s]. . were advisory, directory, or precatory and were never intended to be givenbinding effect.\”).[[8]] R. Morey, \”Mandatory OccupationalSafety and Health Standards–Some Legal Problems,\” 38 Law & Contemp. Probs. 584,588 (1974) (footnote omitted).\u00a0 See also Hamilton at 1393 (erraticcoverage of private standards because they \”were often not written to bemandatory….\”).[[9]] E.g., A. Reis, \”Three Years ofOSHA:\u00a0 The View from Within,\” 98 Monthly Labor Rev. 35-36 (1975) (\”Theconsensus standards were not written to have the force of law…. The problem faced byOSHA was to revise these standards in a manner that made them suitable forenforcement….\”); R. Moran, \”Occupational Safety and Health Standards asFederal Law:\u00a0 The Hazards of Haste,\” 15 Wm. & Mary L. Rev. 777, 786 (1974)(\”the voluntary nature of ANSI standards often resulted in theiridealization.\”); and F. Barnako, \”Enforcing Job Safety:\u00a0 A ManagerialView,\” 98 Monthly Labor Rev. 36, 37 (1975):… [T]he [ANSI and NFPA] standards were draftedas recommendations for optimal workplace safety and health without any idea that theywould or should become law.\u00a0 And they were not drafted by industry consensus butfrequently by representatives of selected industries for those industries. … All ofindustry was not represented on all committees, nor did other industries object to thestandards as published because such standards were of no concern to them.[[10]] According to the then managing director ofANSI, \”some 180 American National Standards were adopted in Walsh-Healey PublicContract Act Regulations issued by the Secretary of Labor in May 1969.\”\u00a0 OccupationalSafety and Health Act, 1970: Hearings on S.2193 and S.2788 Before the Subcomm. onLabor of the Senate Comm. on Labor and Public Welfare, 91st Cong., 1st & 2d Sess.461 (1969-70) (statement of D. Peyton); see also id. at 150-52(Department of Labor \”adopted eight or nine [ANSI health] standards, under theirWalsh-Healey Act,\” and the bulk of the Walsh-Healey health standards were from anon-consensus organization, the American Conference of Governmental Industrial Hygienists)(statement by M. Key, director of Bureau of Occupational Safety and Health, Department ofHealth, Education and Welfare).\u00a0 See also Bureau of Labor Standards, Dept. of Labor,Status of Safety Standards, 4-5 (1968) (Department proposed adoption of consensusstandards in 1968 under Walsh-Healey Act; adopted them in 1967 under Service ContractAct).\u00a0 The Construction Safety Act standards that appear in the 1972 edition of theCode of Federal Regulations incorporated 33 ANSI and NFPA standards by reference, whileother standards, including entire subparts, were lifted with only some change from ANSIstandards.\u00a0 For example, the standard cited in this case, section1926.500(d)(1)–originally codified as section 1518.500(d)(1), see 36 Fed. Reg.25232 (Dec. 30, 1971)–was derived with only minor changes from ANSI A.12.1–1967, SafetyRequirements for Floor and Wall Openings, Railings, and Toeboards ? 5.1, p. 9. Thisand other derivations have been noted by the courts of appeals and the Commission.\u00a0 SeeDiamond Roofing Co. v. OSHRC, 528 F.2d 645, 650 & n. 12 (5th Cir. 1976)(nothing derivation of section 1926.500(d)(1)); L.R. Willson & Sons v. OSHRC,698 F.2d 507, 515 (D.C. Cir. 1983) (derivation of section 1926.450(a)(5) from ANSIA14.13–1956).[[11]] Indeed, the standard cited and applied in this case has often given rise to theprotest by cited employers that necessary work cannot be done with the guardrails inplace.\u00a0 E.g., Robert W. Setterlin & Sons, Co., 76 OSAHRC 53\/D8, 4BNA OSHC 1214, 1217, 1975-76 CCH OSHD ? 20,682, p. 24,774 (No. 7377, 1976); UniversalSheet Metal Corp., 2 BNA OSHC at 1062, 1973-74 CCH OSHD at pp. 22,340-41.[[12]] The Eighth Circuit’s full discussion of the inflexible application of impossibilitystandard is as follows:While we are mindful of the broad scope andremedial purposes of the Occupational Safety and Health Review Act, we are of the opinionthat some modicum of reasonableness and common sense is implied.\u00a0 There is a point atwhich impracticality of the requirement voids its effectiveness and that point has beenreached when to erect an entire wall, a project said to take approximately two hours,petitioner must begin an endless spiral of tasks consisting of abatement activities whichnecessitate further protective devices, i.e., guardrail to erect wall, scaffold to erectguardrail, safety devices to erect scaffold, etc.\u00a0 We agree with the dissent thatsome demarcation line must be drawn between that which is genuinely aimed at the promotionof safety and health and that which, while directed at such aims, is so imprudent as to beunreasonable.[[13]] 29 C.F.R. ? 1910.20(e)(iii)(b) (access toemployee exposure and medical records); ? 1910.134(a)(1) (respiratory protection); ?1910.268(m)(11)(vi)(A) (telecommunications); ? 1910.1001(d)(1)(ii) (asbestos); ?1910.1017(f)(1) (vinyl chloride); ? 1910.1018(g)(1)(i) (inorganic arsenic); ?1910.1025(e)(1)(i) (lead); ? 1910.1029(f)(1)(i) (coke oven emissions); 1910.1043(e)(1)(cotton dust); ? 1910.1044(g)(1) (1, 2 dibromo-3-chloropropane); ? 1910.1045(g)(1)(i)(acrylonitrile); and ? 1910.1047(f)(1)(i) (ethylene oxide).[[14]] See also note 4 supra.\u00a0 In exploring the basis for theinfeasibility defense and its predecessor, the impossibility defense, we have consideredwhether the availability of procedures for seeking permanent and temporary variances fromthe Secretary under sections 6(d) and 6(b)(6)(A) of the Act, 29 U.S.C. ?? 655(d) and(b)(6)(A), should lead the Commission to hold that no defense is available at all. \u00a0Like our predecessors, we conclude that availability of a variance procedure is of noconsequence.\u00a0 It bears emphasis that infeasibility or even difficulty of complianceis irrelevant in a permanent variance proceeding.\u00a0 According to section 6(d), thesole criterion is whether the means used by the employer \”will provide employment …as safe and healthful as those which would prevail if he complied with thestandard.\”\u00a0 The unstated premise of the permanent variance procedure is that thestandard was intended to apply and operate literally and that some means of providing asafe and healthful workplace do exist.\u00a0 The entire point of the infeasibility defenseis, however, that sometimes this premise does not obtain–that the standard was notintended to literally apply or that means of compliance do not exist.\u00a0 As we havesaid, however, the nature of the standards and the structure of the Act require that somemeans be available for addressing those concerns.\u00a0 Finally, the temporary variance isnot available once the effective date of the standard has passed.\u00a0 See section6(b)(6)(A)(i).\u00a0 As the D.C. Circuit stated when it recognized the infeasibilitydefense for a section 6(b) standard, \”[t]hese variances are therefore useless to theemployer who claims that he can find no practical way of meeting the health and safetydemands of an OSHA standard…. \” United Steel-workers v. Marshall, 647 F.2d1189, 1268 (D.C. Cir. 1980).[[15]] Courts have allowed administrativeagencies considerable discretion in placing burdens of persuasion.\u00a0 See N.L.R.B. v.Transportation Management Corp., 462 U.S. 393 (1983); Zurn Industries v. N.L.R.B.,680 F.2d 683 (9th Cir. 1982) cert. denied, 459 U.S. 1198 (1983); N.L.R.B.v. Fixtures Manufacturing Corp., 669 F.2d 547 (8th Cir. 1982).[[16]] Cf. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257,1266 (D.C. Cir. 1973).[[17]] While the Fifth Circuit has expressed concern in this area, it has upheld generalstandards against challenges that they were unconstitutionally vague for failure toprovide employees with reasonable notice of what is required.\u00a0 See Ryder TruckLines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974), upholding 29 C.F.R. ?1910.132(a), and B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir.1978), upholding 29 C.F.R. ? 1926.28(a) (\”We conclude … that its requirements arenot unforeseeable if the standard is read to require only those protective measures whichthe knowledge and experience of the employer’s industry, which the employer is presumed toshare, would clearly deem appropriate under the circumstances.\”)[[18]] Several circuits of the Courts of Appeals have held that in order to satisfy dueprocess the Secretary must prove that there is a feasible method of complying with thestandard, if the standard does not specify a means of compliance.\u00a0 See L.R.Willson & Sons, Inc. v. OSHRC, 698 F.2d 507 (D.C. Cir. 1983); ModernDrop Forge Co. v. Secretary of Labor, 683 F.2d 1105 (7th Cir. 1982); Voegele Co. v.OSHRC, 625 F.2d 1075 (3d Cir. 1980); Ray Evers Welding v. OSHRC, 625 F.2d 726(6th Cir. 1980); Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717(4th Cir. 1979); General Electric Co. v. OSHRC, 540 F.2d 67 (2d Cir. 1976).[[19]] See generally M. Rothstein, Occupational Safety and Health Law ? 145(2d ed. 1983).The most distinctive and significant element of? 5(a)(1) violations is that they are limited to \”recognized hazards.\” \u00a0The \”recognition\” requirement serves to ensure that cited employers at leasthave constructive knowledge of the existence of specific hazardous conditions.\u00a0 Inthis way, Congress sought to eliminate the unfairness of assessing first-instance civilpenalties based on such a sweeping and broadly worded provision.[[1\/]] Section 17(b) states the following:(b) Any employer who has received a citation fora serious violation of section 5 of the Act . . . shall be assessed a civil penalty of upto $1,000 for each such violation.[[1]] 29 C.F.R. ? 1926.500(d)(1) requires, in pertinent part, that \”[e]veryopen-sided floor or platform 6 feet or more above adjacent floor or ground level shall beguarded by a standard railing . . . on all open sides . . . .\” Section 1926.28(a)requires that employees wear \”appropriate personal protective equipment in alloperations where there is an exposure to hazardous conditions or where this part [Part1926] indicates the need for using such equipment to reduce the hazards to theemployees.\”[[2]] 29 U.S.C.?\u00a0659(c) provides that \”[i]f an employer notifies the Secretarythat he intends to contest a citation . . . or [penalty] notification . . . the Commissionshall afford an opportunity for a hearing . . . . \””