SECRETARY OF LABOR,
Complainant,

v.

DUN-PAR ENGINEERED FORM CO.,
Respondent.

OSHRC DOCKET NO. 79-2553

 

ORDER

The Secretary has advised the Commission that a remand has not been sought in this case.  Accordingly, in accordance with the Commission decision issued July 30, 1986, this case is final order as of the date of this order.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: SEP 3 1986

 

SECRETARY OF LABOR,
Complainant,

v.

DUN-PAR ENGINEERED FORM CO.,
Respondent.

OSHRC Docket No. 79-2553

 

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

 

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), Section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

As a result of an employee compliant against the general contractor, an OSHA compliance officer inspected a construction worksite in Excelsior Springs, Missouri.   At the worksite, several different employers were working on an eleven-story building.  Among the subcontractors was Dun-Par Engineered Form Company ("Dun-Par"), which was responsible for the concrete formwork at the site.  When the compliance officer arrived at the worksite, the building was partially constructed to the sixth floor.  The second, third and fourth floors of the building had guardrails around the perimeter.  However, the fifth and sixth floors did not.   The compliance officer observed eight Dun-Par employees tearing down formwork on the fifth floor.  Although he did not see anyone on the sixth floor, the compliance officer was told later that Dun-Par employees also had been working on the sixth floor.   The Secretary cited Dun-Par under 29 C.F.R. 1926.500(d)(1)[[1]] for failing to provide guardrails on the fifth and sixth floors.  The Secretary later amended his citation to allege, in the alternative, that Dun-Par should have protected its employees against perimeter falls by providing them with safety belts under the personal protection equipment standard at 29 C.F.R. 1926.28(a).[[2]]

Judge Dixon affirmed the citation and rejected Dun-Par's defense that guardrails were "impossible" to erect at the worksite.  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 been feasible.  We reverse Judge Dixon's findings and hold that Dun-Par established that guardrails and safety belts were infeasible at the Excelsior Springs worksite.[[3]]

At the worksite, Dun-Par erected the wooden formwork into which concrete was poured to form the structural framework of the building.  This formwork was erected on each floor of the building.  The formwork for one floor could not be erected until the concrete on the previous floor had hardened.

First, the vertical forms, or shores, were built by connecting two 4x4 wooden beams together with the aid of an "ellis clamp."  Then, 4x6 horizontal forms, or ledgers, were attached to the vertical shores and the vertical and horizontal forms were raised.  Every sixteen feet along the floor, this same process of combining and then raising vertical and horizontal forms was repeated.  The formwork along the perimeter of the floor was angled out in such a way that the shores would be able to support an overhead walkway that would be built around the floor above.

Additional 4x4 horizontal wooden forms, called runners, were attached to join the shores and ledgers together.  This vertical and horizontal formwork was braced by additional 4x4 and 4x6 wooden beams.  A horizontal gridwork form was placed down on top of this infrastructure and plywood was nailed down onto the gridwork form.   Concrete was then poured onto the completed formwork.  When the concrete hardened, the wooden formwork was torn down by Dun-Par employees standing in the center of the floor and pulling the wooden forms away from the hardened concrete.  This left a concrete floor, which Dun-Par employees used as a base at some later time to erect vertical and horizontal formwork for the next floor.

Dun-Par argued to the judge that it could not have erected guardrails and still performed its work at the Excelsior Springs worksite.  Specifically, Dun-Par argued "the functional impossibility/impracticality of perimeter guarding."  At the hearing, Dun-Par presented the testimony of two Dun-Par construction workers and John Dunn, the president of Dun-Par.  All three witnesses had extensive experience in concrete formwork; all three gave several specific reasons why guardrails were not feasible at any stage during Dun-Par's work.  The three Dun-Par witnesses testified that before the plywood forms had been laid on top of the vertical shores and horizontal ledgers and gridwork there was no place to erect guardrails.

The compliance officer conceded that guardrails could not be erected until the plywood forms were put down, but contended that guardrails were feasible on the fifth and sixth floors of the Excelsior Springs project.  However, the Dun-Par witnesses demonstrated that guardrails would also be infeasible on the fifth and sixth floors.   Dunn explained that the vertical shoring on one floor was used to support the floor above and a walkway surrounding the overhead floor.  Here, the vertical shoring of the fifth, or "base" floor was used to support the sixth floor and walkway surrounding the sixth floor.  Thus, the vertical shoring on the fifth floor had to be angled out so that it supported the overhead walkway which was beyond the perimeter of the building.  The way in which the vertical shoring was angled out, according to Dunn, made it impossible to erect a guardrail on the fifth floor while the formwork was being erected on top of the concrete base floor.  Any guardrail would interfere with this essential vertical shoring and would have had to be removed when Dun-Par erected the vertical perimeter shores.  One Dun-Par employee explained that any cable or guardrail around the perimeter of the building would actually force Dun-Par workers to perform some of their duties outside the perimeter guarding.

Dun-Par's witnesses also testified that guardrails were not feasible on the sixth floor during the time between the laying of the plywood cover and the erection of the vertical shores to support the next level.  First, the Dun-Par witnesses testified that when the plywood was placed down and guardrails could be erected, the guardrails would perform no safety function for the Dun-Par employees.  After the plywood forms were in place, Dun-Par's work on the floor was completed and the other building trades would come on to the floor and perform their duties.  As Dunn explained, after plywood forms were in place, Dun-Par employees were "down the building and other trades are moving in."

Dunn stated that a single Dun-Par employee oversaw the pouring of concrete over the wooden forms to check for any unusual weaknesses in the formwork.  However, this employee, according to Dunn, would not go to the perimeter of the building unless there was a particular problem.

Finally, the Dun-Par witnesses explained that the guardrails would be destroyed when Dun-Par employees returned to remove the shoring after the concrete was poured.   The wooden shores were wedged into place and were removed by pulling them out.   According to Dun-Par witnesses, any guardrails in place would be destroyed when the shoring was ripped down.  Therefore, guardrails would not be feasible during the tearing down of the formwork.

Dun-Par also argued that "a safety belt/life line system of protection is neither feasible nor of likely utility."  The Secretary presented only the general opinion of the compliance officer--who had no experience in concrete formwork--that such protection could have been provided.  On the other hand, Dun-Par presented specific testimony as to why safety belts would not have been feasible.   When asked whether Dun-Par employees needed to move around freely in the work area in order to do their job.  He added, "We're going up and down ladders.   Safety belts would just be impossible to do the job, do the work."

II

To prove a violation of an OSHA standard, such as sections 1926.500(d)(1) or 1926.25(a), the Secretary must establish (1) the applicability of the cited standard, (2) the existence of noncomplying conditions, (3) employee exposure or access, and (4) that the employer knew or with the exercise of reasonable diligence could have known of the violative condition.  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); Harvey Workover, Inc., 79 OSAHRC 72/D5, 7 BNA OSHC 1687, 1688-90, 1979 CCH OSHD 23,830, pp. 28,908-10 (No. 76-1408, 1979).  Here, there is no dispute about either the applicability of the standards or that there were no guardrails or safety belts being used at the worksite.  Neither is there any question that Dun-Par employees had access to the unguarded perimeter or that Dun-Par knew about the condition.  The question in this case is whether, as the direction for review suggests, the erection of guardrails and use of safety belts were feasible at the Excelsior Springs worksite.

The Commission has long held that employers may defend against a citation that alleges a violation of an OSHA standard requiring a particular means of abatement,--in this case, section 1926.500(d)(1), which requires the installation of guardrails--by proving the affirmative defense of "impossibility."  E.g., Julius Nasso Concrete Corp., 77 OSAHRC 208/F2, 6 BNA OSHC 1171, 1977-78 CCH OSHD 22,401 (No. 16012, 1977).  This defense has two elements: (1) impossibility and (2) proof of alternative protection.  Under this defense the employer must first demonstrate that compliance with the standard's literal requirements was not possible or would preclude performance of the employer's work.  E.g., Bratton Furniture Manufacturing Co., 83 OSAHRC 30/A2, 11 BNA OSHC 1433, 1435, 1983-84 CCH OSHD 26,538, p. 33,858 (No. 81-799, 1983).  Secondly, the employer must show that he took alternative means of protection not specified in the standard, or that alternative means of protection were unavailable.  IdSee also American Luggage Works, Inc., 82 OSAHRC 30/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 correct in finding that Dun-Par failed to establish the elements of the impossibility defense.  According to the Secretary, Dun-Par failed to show that the erection of guardrails or the use of safety belts would have prevented Dun-Par from doing its work.  The Secretary also argues that Dun-Par failed to show that other ways of protecting the workers were not available.

On review, Dun-Par does not argue that the erection of guardrails was absolutely impossible but that the guardrails "were not a feasible means to protect Dun-Par employees due to the circumstances and nature of Dun-Par's work."  Dun-Par further argues that the guardrails were not "practical" and that their use at the workplace was "contrary to common sense and the purpose of the Act."   Similarly, Dun-Par argues that the record establishes that safety belts were "neither feasible nor of likely utility."  Dun-Par argues that the Commission should follow the rationale of the United States Court of Appeals for the Eighth Circuit in H.S. Holtze Construction Co. v. OSHRC, 627 F.2d 149 (8th Cir.1980), and adopt a more practical and reasonable approach to the defense of "impossibility."

Dun-Par's arguments on review are not couched in the traditional terms of the impossibility defense.  Dun-Par does not claim that the erection of guardrails or the use of safety belts was "impossible" but only that these means of protection did not make sense given the manner in which Dun-Par performed its work.  Neither does Dun-Par make any claim that it took available, alternative measures, as required under the second element of the "impossibility" defense.  Essentially, Dun-Par questions the "impossibility" defense as it has been developed by the Commission.

A.

Heretofore, the initial requirement of the impossibility defense was that the employer was required to show that it is "impossible" to comply with a standard.   Although Commission decisions have consistently spoken of "impossibility," several courts of appeals have instead inquired whether compliance was "infeasible."[[4]]  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 and health standards promulgated under this Act."  However, it soon became apparent to the Commission that this provision of the Act could not reasonably be applied in a literal 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).   There, the employer had suggested that compliance with a standard would have prevented work from being performed.  The Commission remanded to give the employer an opportunity to prove this but reserved decision on whether the allegation was a defense.   The Commission stated simply that:

It may well be that [the employer], by this allegation, intended to raise (albeit inartfully) impossibility of compliance as an affirmative defense.  We would give [the employer] the opportunity to present the defense without venturing any opinion at this time concerning the question of the completeness 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 actually upheld the defense, the Commission vacated a citation for a violation of standards requiring guardrails on the ground that the work would have been "impossible" with the railings in place.  W.B. Meredith, II, Inc., 74 OSAHRC 39/A2, 1 BNA OSHC 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).  The Commission did not, however, make clear why a showing of "impossibility" was necessary, as opposed to a showing of "infeasibility."  Possibly early members of the Commission saw no sharp distinction between the two, because thereafter, in K & T Steel Corp., 76 OSAHRC 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 proven because the evidence showed the "feasibility" of using a guarding method required by a standard.  See also Central Steel & Tank Co., 75 OSAHRC 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., 74 OSAHRC 44/D7, 2 BNA OSHC 1061, 1973-74 CCH OSHD 18,163 (No. 657, 1974) (compliance with standard would render performance of work "very difficult if not impossible.")  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. 1253, 1978), the Commission drew a sharp distinction between the terms "impossibility" and "infeasibility," it did not explain why it did so.   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 Commission correctly appreciated that literal compliance with the standards was not always possible.  However, we do not believe the so-called impossibility defense, as presently framed, adequately reflects the obligations of employers under the Act.  The standards adopted in the earliest days of the Act were national consensus standards and established federal standards, which Congress had required the Secretary to adopt quickly without additional rulemaking.   See sections 3(9), 3(10) and 6(a) of Act, 29 U.S.C. 652(9), 652(10) and 652(a).  The national consensus standards, which were the source of the "overwhelming majority of safety standards,"[[5]] were often out-of-date by the time OSHA adopted them.[[6]]  They had been drafted by committees of industry representatives under the auspices of private standard-setting organizations, particularly the American National Standards Institute (ANSI) and the National Fire Protection Association (NFPA), and were not intended to be used as mandatory, inflexible legal requirements.  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 never be held accountable if [employers] didn't achieve them."[[7]]  As one observer noted:

...[P]rivate standards were often written as goals to be attained rather than as rules intended to be enforced.  ...Many combine arbitrary levels, values, or other requirements with an either explicit or implicit understanding that these requirements are not to be applied by rote to every situation which they might literally cover.[[8]]

Both OSHA officials and early members of the Commission recognized that the voluntary consensus standards were not designed to be rigidly enforced.[[9]]  This view was reaffirmed by the Third Circuit in A.F.L.-C.I.O. v. Brennan, 530 F.3d 109, 112 (3d Cir. 1975).  That case involved a machine guarding standard that was derived from an ANSI standard.  The court observed that "[w]hen it promulgated the no hands in dies 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 affected industries."

This lack of expectation of rigid enforcement also lay behind the established federal standards adopted en masse in 1971.  Many were taken from standards adopted under the Walsh-Healey Public Contracts Act, 41 U.S.C. 35-45.  Yet, the Walsh-Healey standards were only interpretive rules, designed to establish a benchmark for employee safety and health but not to finally determine the government contractor's duty.   Thus, Labor Department regulations permitted the contractor to challenge  the "legality, fairness or propriety" of the Labor Department's reliance on a standard to show a violation of the statutory prohibition against "unsanitary or hazardous or dangerous working conditions."  41 C.F.R. 50-204.1.  See generally American Can Co., 82 OSAHRC 5/A2, 10 BNA OSHC 1305, 1311, 1982 CCH OSHD 25,899, p. 32,414 (No. 76-5162, 1982).

The same is true of the Construction Safety Act standards in 29 C.F.R. Part 1926, which were originally adopted under and interpreted the Contract Work Hours and Safety Standards Act, 40 U.S.C. 327 et seq. (commonly known as the "Construction Safety Act").  According to 29 C.F.R.1926.10 (first designated 29 C.F.R.1518.10), the Construction Safety Act standards were specifically intended to interpret and apply section 107 of the Construction Safety Act, 30 U.S.C.333, which prohibits "unsanitary, hazardous, or dangerous" working conditions in government construction work.  However, the procedures for enforcement were to be those under the Service Contract Act, 41 U.S.C.351 et seq. 29 C.F.R.1926.4 (first designated 29 C.F.R. 1518.4), adopted at 36 Fed. Reg. 7340, 7341, (1971).  The version of the pertinent Service Contract Act regulation that was ineffect when the Construction Safety Act standards were adopted prescribed a system like that in the Walsh-Healey Act: Labor Department investigators and other officers were instructed to "assume that failure to comply with...the safety and health measures provided in [the Service Contract Act standards] results in working conditions which are 'unsanitary or hazardous or dangerous...'"  In "formal enforcement proceedings," however, contractors would "be permitted to demonstrate by reliable, substantial, probative evidence, that their failure to comply with [the Service Contract Act standards] did not result in working conditions unsanitary or hazardous or dangerous...."  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 only interpretive regulations; failure to follow a standard was not a per se violation.

Moreover, many, if not most, of the interpretive standards adopted under the Walsh-Healey Act and the Construction Safety Act were themselves derived from private, voluntary standards, which, as we have noted, were not drafted as inflexible, legal commands.[[10]]

The Commission's in interpreting and applying the OSHA standards adopted under section 6(a) has been consistent with the above account of their history--that they could not possibly have been written with literal application in mind; rather the standards were designed not for all cases but for the normal case.[[11]]  As the Eighth Circuit pointed out in H.S. Holtze Construction Co. v. Marshall, 627 F.2d at 151-152, "some modicum of reasonableness and common sense is implied."[[12]]

Strict application of an "impossibility" defense does not accommodate considerations of reasonableness or common sense, or reflect the strong sense of the practical implicit in the standards adopted under section 6(a).  Feasibility, on the other hand, is consistent with the requirements of the Act and with earlier Commission decisions.  This view is buttressed by the legislative history of the Act and by the language of some standards.  Thus, section 6(b)(5), by which means Congress intended the Secretary to adopt the health standards that would replace OSHA "interim" standards, speaks expressly of "feasibility."  One court has inferred from section 6(b)(5) that all OSHA standards are implicitly constrained by the feasibility requirement.  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).  The Secretary's own standards--particularly the new health standards--consistently use the word "feasible" to qualify the employer's obligation.[[13]]  The general duty imposed by section 5(a)(1) of the Act, 29 U.S.C.654(a)(1), which applies when no standard is applicable, is also implicitly qualified by the concept of "feasibility."  See National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).  Finally, when a standard is so unclear that it would otherwise be held unconstitutionally vague, the Commission and several courts of appeals have held that the standard applies only to the extent the duty imposed on the employer is "feasible."  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 OSHC 1729, 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 of Labor, 683 F.2d 1105 (7th Cir. 1982); Voegle Co. v. OSHRC, 625 F.2d 1075 (3rd 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).

We agree with several courts of appeals that "[r]ather than 'impossibility,' the question is more properly thought of in terms of [in]feasibility.  A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 950 & n.1 (1st Cir. 1978).[[14]]   We therefore modify the defense by changing the inquiry in the first element from "impossibility" to "infeasibility."  We overrule Commission precedent that requires employers to prove that compliance with a standard is "impossible" rather than "infeasible."

B.

Under the second element of the impossibility defense, an employer who established the impossibility of the cited standard was also required to persuade the trier of fact by a preponderance of the evidence that alternative protective measures had been taken or were unavailable.  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).  Although section 5(a)(2) of the Act does not expressly impose a requirement to use available alternative protective measures, the Commission has reasoned that an employer should do something to protect its employees if literal compliance with a standard is impossible.  See id.

However, none of the Commission cases that discussed the impossibility defense and that allocated the burden of percussion to the employer to establish that compliance with a standard was "impossible," ever analyzed why the employer should also have the burden of persuasion to establish that alternative means of protection were "unavailable" or why "unavailability" would be the test for determining the employer's duty.  Similarly, although the courts of appeals upheld the Commission's allocation of the burden of persuasion to the employer to establish that compliance with the cited standard was "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); Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439 (5th Cir. 1977), none of the courts discussed the allocation of the burden of persuasion on the alternative measures element.

The allocation to the employer of the burden of persuasion on the alternative measures issue posed almost insoluble litigating problems for the employer: He would have to prove the negative of a proposition and he could never know when he had proven the unavailability of all the alternative measures that could possibly exist.  To prepare for a hearing in which the impossibility of abatement would be in issue, the employer would have to conceive of all possible alternative measures, including those that might be suggested by the Secretary or his witnesses, and prepare evidence to establish that all those measures were "unavailable."  Still, the employer might not have anticipated no matter how diligent or imaginative his preparation for the hearing.

We conclude that the burden of proposing alternative means of protection and persuading the trier of fact that the employer failed to use them more fairly rests with the Secretary.

It should be noted that there are "no hard-and-fast standards governing the allocation of the burden of proof in every situation."  Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 209 (1973).  Where the burden of persuasion falls will ultimately rest "upon broad reasons of experience and fairness."  J. Wigmore, Evidence 2486 at 292 (J. Chadbourn ed., 1981).

The courts have considered a host of factors when deciding whether to place the burden of persuasion with one party or another.[[15]]  See McCormick, Laws of Evidence 337 at 788-789 (2d ed. 1972).  One factor that is carefully considered is whether the facts with regard to an issue are within the knowledge of a particular party; if they are, that party is more likely to be allocated the burden of establishing those facts.  McCormick at 787; Advanced Micro Devices v. C.A.B, 742 F.2d 1520 (D.C. Cir. 1984).  See also Louisiana-Pacific Corp., 77 OSAHRC 63/E14, 5 BNA OSHC 1572, 1977 CCH OSHD 21,977 (No. 6277, 1977) (concurring opinion).  One court used this reasoning in holding that the burden of persuasion should be on the employer to establish that compliance with the cited standard was infeasible.  The Fifth Circuit in Ace Sheeting observed:

Here, the regulation stated specific ways for the employer to eliminate the hazard.  If the employer put up guardrails or covered the skylights, the safety standard would have been met.  If for any reason guard rails or covers are not feasible, the employer knows this better than anyone else, and it is reasonable to require him to come forward with the evidence to prove it....  We therefore hold that where a specific duty standard contains the method by which the work hazard is to be abated, the burden of proof is on the employer to demonstrate that the remedy 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 have been used in a particular situation requires safety expertise and a broad knowledge of available abatement methods.[[16]]  An employer is not always aware of the many alternative means of protection, particularly if the alternative means of protection are not commonly used in the employer's industry.  Knowledge of the various alternative means of protection is more likely to reside with the compliance officer and other employees of the Occupational Safety and Health Administration.   The employer does not on balance have any peculiar knowledge concerning alternative means of protection and may indeed have less knowledge than OSHA of such matters.

The allocation to the Secretary of the burden of alleging and establishing alternative means of protection is more consistent with holdings in closely analogous areas of occupational safety and health law.  Where a statute or standard specifies a means of abatement or states specific performance criteria, an employer informed of his duty; if he raises an infeasibility defense, he will know what measures he must prove are "infeasible."  If the standard or statute (for example, the general duty clause) is not so specific, however, the Commission and the courts have imposed on the Secretary the duty to specify and prove the feasibility of a means of abatement.  Compare National Realty & Construction Co., Inc. v. OSHRC, 489 F.2d 1257, 1268 (D.C. Cir. 1973) (general duty clause), and Granite City Terminals Corp., 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 BNA OSHC 1678, 1684, 1986 CCH OSHD 27,519, p. 35,682 (No. 80-4109, 1986) (no burden of proving feasibility where standard is specific).  Here, once the employer has proven the infeasibility 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.  Here too then, we think it appropriate to impose on the Secretary the duty to formulate his own theory of what the employer should have done, to allege that theory and to support it with evidence at the hearing.

For much the same reason, the Secretary will be required to show that the alternative means of protection is "feasible" and not merely "available."  This accords with the reasoning of the District of Columbia Circuit in National Realty that we mentioned above, and, as discussed in Part II.A of this decision, with the language, structure and purpose of the Act.  The Secretary must therefore show that the alternative means is a practical and realistic method, given the circumstances at the workplace, to protect the employer's workers, and that the employer did not use it.

The employer may, of course, rebut the Secretary's showing that the employer did not use a feasible alternative method of protection.  He may, among other things, show that he had used another alternative protective method that was reasonably designed to mitigate the hazard.  The alternative method that was reasonably designed to mitigate the hazard.  The alternative method actually used by the employer need not, however, be as protective as the method proposed by the Secretary; it need only provide as much protection as the method required by the standard or, in the case of a general standard, by the method of protection proven to be a feasible method of complying with the standard.

We believe the reallocation of the burden of persuasion described in this decision will be fairer to the parties.  It will give the employer sufficient notice of what alternative means of protection will be the subject of the litigation.  We also believe this reallocation of the burden of persuasion will "sharpen the inquiry" and "frame the factual question" to the essential question concerning alternative means of protection: what could the employer have done to bring himself into compliance with the cited standard?  See Texas District of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981).  This will result in the creation of a fuller record concerning the important issues of the case and therefore better decision making.

In placing on the Secretary the burden to show the feasibility of specific alternative measures, we do not hold that when employers are faced with the infeasibility of the specific abatement method identified in applicable standards, they are free to do nothing until told what to do by the Secretary in an adjudicatory proceeding.  Just as employers have a duty to make reasonable efforts to comply with the general duty, employers who find identified forms of abatement infeasible continue to have a duty to make reasonable efforts to utilize other means of abating the hazard of which the standard gives them notice.

The concurring opinion argues that due process problems will arise because the employer may be held in violation of the Act for not taking measures that are not required by standards promulgated under section 5(a)(2) or under the general duty clause of the Act.  We believe that there are not such due process problems.

We do not agree with the concurrence that the Secretary's alternative measure must be derived from the most specifically applicable standard or through independent proof of a recognized hazard under section 5(a)(1).  In large measure the concurrence, by permitting an alternative measure to be rebutted on grounds of inapplicability or preemption, would preclude the Secretary from rebutting an infeasibility defense since most standards are hazard specific.  The Secretary need not offer independent proof of recognition of the hazard since the standard which he first cited gives the employer notice of the hazard.  Nor, where a cited standard would require abatement of other than serious hazards, would it be necessary for the Secretary to show the hazard to be likely to cause death or serious injury.  It having been established in rulemaking that the hazard warrants precautionary measures, the remaining 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 the standard.  We would reiterate, however, that the Secretary has the same burden to show feasibility of the alternative measure as under the general duty clause.

That the exact measures the employer should have taken are not spelled out in a standard is no different from when an employer is cited under the general duty clause or a performance standard.  There, an employer is not apprised of specific measures he must take to comply with the general duty clause or a performance standard, but rather only with the general nature of the hazard.  Just as the Commission and the courts have found no due process problems with the lack of specific abatement methods in the general duty clause or general performance standards,[[17]] we perceive no violation of due process because an employer is not notified in a standard of the specific alternative means of abatement he could take to protect his employees.  In both cases, the employer has a duty to think for himself and determine what feasibly can be done.

III.

Applying the infeasibility defense here, the question is whether Dun-Par established that guardrails could not have been installed or would have disrupted the work to such a degree that there was no feasible way to use guardrails to protect Dun-Par's employees.  Dun-Par's work in erecting the concrete formwork occurred in several distinct stages.

In the first stage, Dun-Par employees constructed and then raised vertical and horizontal forms every 16 feet along the floor.  Both parties agreed that at this stage, before the plywood was laid on top of the vertical and horizontal forms, there was simply no place to put guardrails.  Therefore, at this stage in Dun-Par's work, guardrails were infeasible.

In the next stage of Dun-Par's work, Dun-Par's employees attached plywood to the vertical and horizontal forms so that concrete could be poured onto the wooden forms.   The parties disagreed whether guardrails could be used at this stage of Dun-Par's work.  Dun-Par argued that guardrails could not be used because of the way in which the vertical shores along the perimeter of the building had to be angled out.   Dun-Par's witnesses explained that the vertical shores along the perimeter of the building were used to support the overhead floor and a walkway surrounding the floor above.  According to Dun-Par's witnesses, the way in which vertical shores were angled would leave no room for guardrails along the perimeter.

From the evidence at the hearing, it appears that it 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 that guardrails were feasible.  As the Dun-Par witnesses explained, guardrails would interfere with the vertical shoring along the perimeter of the floor.  Any guardrail along the perimeter would have to be removed so as not to interfere with this shoring.  Thus, guardrails could have been placed somewhere on the floor though not along the perimeter.  Dun-Par witnesses testified, however, that any perimeter guarding would force Dun-Par employees to work outside the perimeter guards.  We therefore find that guardrails were infeasible at this stage of Dun-Par's operation.  Requiring an employer constantly to erect and tear down the guardrails or to have its employees work outside the guardrails in order to complete their work is not a feasible method of complying with section 1926.500(d)(1).

The next stage of work was the pouring of concrete.  This began after the vertical and horizontal forms were erected and the plywood was laid down.  By this time, almost all of the Dun-Par employees had left the work area.  Only one Dun-Par employee generally remained to oversee the pouring of 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 there was an unexpected problem with the shores at the perimeter of the building during the concrete pour.

We are unconvinced by the Secretary's evidence of employee access at this stage.   The Secretary must prove that it is reasonably predictable that "employees either while in the course of their assigned duties, their personal comfort activities while on the job, or their normal means of ingress-egress to their assigned workplaces, will be, are or have been in a zone of danger."  Carpenter Contracting Corp., 84 OSAHRC___, 11 BNA OSHC 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).  Here, the evidence consists of no more than speculation that an employee might go to the edge of the building if an unusual event occurred.  Although 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.  Dun-Par undoubtedly would have had to engage other employees in the erection of guardrails along the entire perimeter of the fifth floor, thereby inevitably exposing them to a fall hazard.  This would have been done to protect one employee in the event of an unusual occurrence during the concrete pour--that an employee would go to the floor perimeter to check for sagging or slippage of the wooden forms.  We find that guardrails would not have been a feasible way to protect that single Dun-Par employee during the concrete pour.

After the poured concrete hardened, Dun-Par employees returned to the work area to remove the wooden forms.  Dun-Par employees would stand away from the perimeter of the floor and pull the wooden forms with the aid of a rope or board toward the center of the floor.  Uncontradicted testimony by Dun-Par's witnesses established that any guardrails would have been destroyed by this procedure.  At this point, guardrails may have been theoretically possible but they would have served no practical purpose in protecting the employees.  Under the circumstances, we find that guardrails at this stage of Dun-Par's work were infeasible.

As we stated previously, feasibility must reflect the strong sense of the practical implicit in the OSHA standards.  The question of whether a means of protection is infeasible must be answered in light of the practical realities of the particular workplace.  Looking at the evidence presented concerning each stage of Dun-Par's operations, we find that Dun-Par established by a preponderance of the evidence that there was no feasible way to comply with section 1926.500(d)(1).  Therefore, we uphold Dun-Par's affirmative defense that guardrails were infeasible.

The Secretary alternatively charged that safety belts could be used at the workplace.  Dun-Par maintained that because its employees needed to move about the worksite freely, safety belts would not be feasible.  In Granite City Terminals Corp., 86 OSAHRC___,12 BNA OSHC 1741 & 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, the Secretary must prove that there is a feasible means of complying with the standard.[[18]]  The Secretary, then, has the burden of proving that safety belts were feasible at the Excelsior Springs worksite.

After weighing the testimony presented at the hearing and considering the practical realities of the workplace, we find that the Secretary presented no evidence concerning how the safety belts would actually be used at the workplace beyond the compliance officer's bare claim that safety belts were feasible.  On the other hand, Dun-Par presented specific testimony which established that safety belts were infeasible.   Mr. Dunn, who had much more experience with concrete formwork than the compliance officer, explained the need for Dun-Par workers to move freely about the work area, often moving up and down ladders.

Although we uphold Dun-Par's infeasibility defense with respect to guardrails and find that the Secretary failed to establish the feasibility of safety belts, we do not yet vacate the citation.  As we discussed at some length above, when an employer argues that compliance with a cited standard is infeasible, the Secretary has the burden of persuasion to establish that a feasible alternative means of protection existed and the employer did not use it.  The Secretary, of course, was not on notice that he had the burden of establishing a feasible alternative means of protection and so produced very little evidence concerning any alternative methods.  Similarly, the Secretary was not then on notice that he bore a burden of proving the feasibility of safety belts.  The Secretary will therefore be granted an opportunity to adduce additional evidence on the feasibility of safety belts and to amend his pleadings to allege that Dun-Par failed to use feasible alternative means of protection.

Accordingly, the citation is vacated unless the Secretary, within ten days from the issuance of this decision, moves that this case be remanded 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 feasible alternative means of protection, and to adduce additional evidence concerning those matters.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: JUL 30 1986

RADER, Commissioner, concurring in part and dissenting in part:

I join with the majority in holding that the so-called "impossibility" defense is more properly cast in terms of "infeasibility."  I also agree that when an employer raises the infeasibility defense it is the Secretary's burden to plead and prove the alternative means of protection that the employer should have utilized.  Since we have substantially altered respective burdens of persuasion and going forward with the evidence where infeasibility is raised as a defense, I would add a brief explanation of how the defense will work from a procedural standpoint.

In a typical case the Secretary will allege in his complaint that the employer has violated a certain standard.  The employer will then raise the affirmative defense of infeasibility in his answer.  At that point the Secretary is on notice that he may have to prove there were alternative measures the employer could and should have used.   Since, as we have noted, the Secretary has peculiar knowledge of the available alternative means of protection, and especially those upon which he may offer evidence at trial, he should amend his complaint to allege those alternative measures the employer should have taken if, in fact, compliance with the cited standard is infeasible.  In this manner, then, both parties will have fair notice of the claims and defenses of the other prior to trial.

In the present case we unanimously vacate the citation under section 1926.500(d)(1) because Dun-Par demonstrated that guardrails were simply infeasible.   Since the Secretary did not know it was his burden to allege and prove alternative means of protection, we agree that the Secretary should be afforded the opportunity to do so now.  It is at this point, however, that I afforded the opportunity to do so now.   It is at this point, however, that I part company with the majority.  I differ with the majority as to what alternative measures the Secretary may propose.  Under the majority view, once the infeasibility defense is raised the Secretary may advocate any feasible alternative means of protection, even if those alternative measures are contained in inapplicable standards, or standards that are preempted under 29 C.F.R. 1910.5(c) by more specific but uncited standards, or are not specified in any standard at all.

Our holding that the burden of pleading and proving alternative measures properly rests on the Secretary is founded on the due process concept that the employer should have fair notice of exactly what the Secretary alleges the employer should have done.  It is manifestly unfair to require the employer to be prepared to prove the unavailability of all possible alternative measures that could be suggested by the Secretary's witnesses at trial.  It seems to me that if due process principles of notice and fairness preclude the imposition of ad hoc alternative measures at trial, those same principles preclude the imposition of ad hoc alternative measures--i.e., measures not required by a standard or recognized under the general duty clause--at any time.   That the majority will now require the Secretary to apprise the employer of these ad hoc alternative measures in advance of trial does not change the fact that the employer may still be held in violation of the Act for not taking measures that are not called for in the standards promulgated under section 5(a)(2) or under the general duty clause, section 5(a)(1).

It goes without saying that the Secretary is solely responsible for writing standards and regulations to establish an employer's compliance duties.  In adopting these standards, the Secretary is required to follow the rulemaking provisions set forth in section 6 of the Act, 29 U.S.C. 655.  These standards primarily define the employer's duty under section 5(a) of the Act, for it is only when no standards apply that any employer is required to comply with the Act's general duty clause, which requires steps against "recognized hazards that are causing or are likely to cause death or serious physical harm...."  Section 5(a)(1), 29 U.S.C. 654(a)(1).  See generally 29 C.F.R. 1910.5(f); Brisk Waterproofing Co., 73 OSAHRC 30/E1, BNA OSHC 1263, 1973-74 CCH OSHD 16,345 (No. 1046,1973).

Section 5(a) reflects a scheme of regulation intended to define and limit the duties of employers.  In adopting subsection 5(a)(2), Congress rejected the Walsh-Healey Act's general criterion of "unsanitary or hazardous or dangerous" and made standards the primary focus of an employer's duty.  American Can Co., 83 OSAHRC 5/A2, 10 BNA OSHC 1305, 1312, 1982 CCH OSHD 25,899, p. 32,415 (No. 76-5162, 1982).  Although Congress stated a general duty in subsection 5(a)(1), it intended that that provision operate only when a standard did not.  Congress also made the general duty clause more limited than the Walsh-Healey Act's general criterion, for it limited the employer's duty to avoiding only "recognized" hazards that are "causing or likely to cause death or serious physical harm," and to taking feasible steps against them.[[19]]

The majority's "available alternative protective measures" doctrine is out of step with this scheme.  The measures it requires need not be measures that are only specified in inapplicable or pre-empted standards, or not required by the standards at all.  This effectively expands the compliance duties imposed on employers; they are required to comply with standards that do not apply or do not exist, or, stated differently, with requirements that have not been imposed beforehand by the Secretary, whose authority it is to establish or modify standards.  See, e.g., Lisbon Contractors, 84 OSAHRC 19/A2, 11 BNA OSHC 1971, 1974, 1984 CCH OSHD 26,924 (No. 80-97, 1984); Schwarz-Jordan, Inc., 84 OSAHRC___, 11 BNA OSHD 2145, 2147, 1984 CCH OSHD 26,989, p. 34,714 (No. 81-2738, 1984), rev'd on other grounds, 777 F.2d 195 (5th Cir. 1985).  The majority's view is based on the idea that if the employer cannot feasibly comply with the applicable standard he must do "something."   The problem with this is that the Secretary's view of what alternative measures the employer should take maybe different from the employer's.  The employer therefore cannot know whether the "something" he does is sufficient to comply with the Act until after he has been cited and the citation litigated.

The majority's holding here still leaves a significant notice of problem for employers.  To comport with the due process clause of the Fifth Amendment to the Constitution, standards must provide employers with fair notice of their compliance responsibilities.  See Dravo Corp. v. OSHRC, 613 F.2d 1227, 1232 (3d Cir. 1980), and cases cited therein; Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233, (5th Cir. 1974).  To assure that employers receive such notice, standards must not be interpreted to impose duties that their plain meaning does not support.  See Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976).  Under the majority's view the duties imposed ad hoc by the alternative measures doctrine may bear no relationship to the plain words of any cited standard.  The employer thus has no fair notice of what it is he must do to be in compliance with the Act until after he is cited for violations.

For these reasons, I would not allow the Secretary to impose alternative measures that are not required by any standard or are beyond the scope of the general duty clause.

 

 


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[Footnotes]

 

[[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 level shall 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.  The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can press, or there is moving machinery, or there is 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 personal equipment in all operations where there this part indicates the need for using such equipment to reduce the hazards to the employees.

See L.E. Myers Co., 86 OSAHRC___, 12 BNA 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 to address the merits of the citation items.  After Judge Dixon's decision, Dun-Par petitioned for review on several issues.  However, former Commissioner Barnako directed review on several issues.  However, former Commissioner Barnako directed review on the sole question of the penalty.  The Commission found the penalty assessment was in error and remanded the case to Judge Dixon.  Dun-Par Engineered Form Co., 84 OSHARC___, 11 BNA OSHC 1912, 1984 CCH OSHD 26,883 (No. 79-2553, 1984).  On remand, the judge lowered the penalty.  Dun-Par again petitioned for review of several issues, not directed for review the merits of this citation because the citation items became final orders of the Commission in 1980, when Dun-Par petitioned for review of several issues, 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), when the Commission directs any portion of a case for review, the entire judge's report is before the Commission, unless a citation item is specifically severed and made a final order under rule 54(b) of the Federal Rules of Civil Procedure.  Therefore, when former Commissioner Barnako directed only the question of the penalty for review, the item alleging that Dun-Par violated sections 1926.500(d)(1) and 1926.28(a) did not become the final order of the Commission.  The issues of the feasibility of guardrails and safety belts could have been addressed in the Commission's previous decision and are now properly 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); Faultless Division, Bliss & Laughlin Industries Inc. v. Secretary of Labor, 674 F.2d 1177, 1189-90 (7th Cir. 1982); Southern Colorado Prestress Co. v. OSHRC, 586 F.2d 1342, 1351 (10th Cir. 1978); A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 951-2 (1st Cir. 1978).  See also United Steelworkers v. Marshall, 647 F.2d 1189, 1270, 1273 (D.C. Cir. 1980); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1333 (6th Cir. 1978); Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439, 440-1 (5th Cir. 1977).

Indeed, it has been noted that, "[t]o impose on an employer the burden of proving impossibility 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 and Health law 125 (2d ed. 1983),

[[6]] S. Rep. No. 91-1282, 91st Cong., 2d Sess. 6 (1970), reprinted in Committee on Labor & Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 146 (Comm. Print. 1971) ("However, as a recent Department of Labor study has shown, a large proportion of the voluntary standards are seriously out-of-date.")

[[7]] Remarks of D. Peyton, quoted in C. Musacchio, "The Power Press Flap: Will it Reshape Standards Setting?,"  35 Occupational Hazards 107, 108 (Oct. 1973).  See generally R. Hamilton, "The Role of Nongovernmental Standards in the L. Rev. 1329, 1346 n. 40, 1350 & n. 52, 1449 (1978) (hereinafter cited as "Hamilton").  See also M. Rothstein, "OSHA After Ten Years: A Review and Some Proposed Reforms," 34 Vanderbilt L. Rev. 71, 73-74 (1981) ("Most of the difficulties with national consensus standards can be traced to the fact that they were privately adopted, optional measures.  Many...were poorly drafted, [or] extremely general....  Other[s]...were advisory, directory, or precatory and were never intended to be given binding effect.").

[[8]] R. Morey, "Mandatory Occupational Safety and Health Standards--Some Legal Problems," 38 Law & Contemp. Probs. 584, 588 (1974) (footnote omitted).   See also Hamilton at 1393 (erratic coverage of private standards because they "were often not written to be mandatory....").

[[9]] E.g., A. Reis, "Three Years of OSHA: The View from Within," 98 Monthly Labor Rev. 35-36 (1975) ("The consensus standards were not written to have the force of law...  The problem faced by OSHA was to revise these standards in a manner that made them suitable for enforcement...."); R. Moran, "Occupational Safety and Health Standards as Federal Law: The Hazards of Haste," 15 Wm. & Mary L. Rev. 777, 786 (1974) ("the voluntary nature of ANSI standards often resulted in their idealization."); and F. Barnako, "Enforcing Job Safety: A Managerial View," 98 Monthly Labor Rev. 36, 37 (1975):

...[T]he [ANSI and NFPA] standards were drafted as recommendations for optimal workplace safety and health without any idea that they would or should become law.   And they were not drafted by industry consensus but frequently by representatives of selected industries for those industries. ...All of industry was not represented on all committees nor did other industries object to the standards as published because such standards were of no concern to them.

[[10]] According to the then managing director of ANSI, "some 180 American National Standards were adopted in Walsh-Healey Public Contract Act Regulations issued by the Secretary of Labor in May 1969."  Occupational Safety and Health Act, 1970: Hearings on S.2193 and S.2788 Before the Subcomm. on Labor 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 their Walsh-Healey health standards were from a non-consensus organization, the American Conference of Governmental Industrial Hygienists) (statement by M. Key, director of Bureau of Occupational Safety and Health, Department of Health, Education and Welfare).  See also Bureau of Labor Standards, Dept. of Labor, Status of Safety Standards, 4-5 (1968) (Labor Department proposed adoption of consensus standards in 1968 under Walsh-Healey Act; adopted them in 1967 under Service Contract Act.)  The Construction Safety Act standards that appear in the 1972 edition of the Code of Federal Regulations incorporated 33 ANSI and NFPA standards by reference, while other standards, including entire subparts, were lifted with only some changes from ANSI standards.  For example, the standard 1518.500(d)(1), see 36 Fed. Reg. 25232 (Dec. 30, 1971)--was derived with only minor changes from ANSI A.12.1--1967, Safety Requirements for Floor and Wall Openings, Railings, and Toeboards 5.1, p. 9.  This and other derivations have been noted by the courts of appeals and the Commission.  See Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 650 & n. 12 (5th Cir. 1976) (noting 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 ANSI A14.13--1956).

[[11]] Indeed, the standard cited and applied in this case has often given rise to the protest by cited employers that necessary work cannot be done with the guardrails in place.  E.g., Robert W. Setterlin & Sons, Co., 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1217, 1975-76 CCH OSHD 20,682, p. 24,774 (No. 7377, 1976); Universal Sheet 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 an impossibility standard is as follows:

While we are mindful of the broad scope and remedial purposes of the Occupational Safety and Health Review Act, we are of the opinion that some modicum of reasonableness and common sense is implied.  There is a point at which the impracticality of the requirement voids its effectiveness and that point has been reached when to erect an entire wall, a project said take approximately two hours, petitioner must begin an endless spiral of tasks consisting of abatement activities which necessitate further protective devices, i.e., guardrail to erect wall, scaffold to erect guardrail, safety devices to erect scaffold, etc.  We agree with the dissent that some demarcation line must be drawn between that which is genuinely aimed at the promotion of safety and health and that which, while directed at such aims, is so imprudent as to be unreasonable.

[[13]] 29 C.F.R. 1910.20(e)(iii)(b) (access to employee 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); 1910.1029(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.  In exploring the basis for the infeasibility defense its predecessor, the impossibility defense, we have considered whether the availability of procedures for seeking permanent and temporary variances from the 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.   Like our predecessors, we conclude that availability of a variance procedure is of no consequence.  It bears emphasis that infeasibility or even difficulty of compliance is irrelevant in a permanent variance proceeding.  According to section 6(d), the sole 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 the standard."  The unstated premise if the permanent variance procedure is that the standard was intended to apply and operate literally and that some means of providing a safe and healthful workplace do exist.  The entire point of the infeasibility defense is, however, that sometimes this premise does not obtain--that the standard was not intended to literally apply or that means of compliance do not exist.  As we have said, however, the nature of the standards and the structure of the Act require that some means be available for addressing those concerns.  Finally, the temporary variance is not available once the effective date of the standard has passed.  See section 6(b)(6)(A)(i).  As the D.C. Circuit stated when it recognized the infeasibility defense for a section 6(b) standard, "[t]hese variances are therefore useless to the employer who claims that he can find no practical way of meeting the health and safety demands of an OSHA standard...."  United Steelworkers v. Marshall, 647 F.2d 1189, 1268 (D.C. Cir. 1980).

[[15]] Courts have allowed administrative agencies considerable discretion in placing burdens of persuasion.  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.R.L.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 general standards against challenges that hey were unconstitutionally vague for failure to provide employees with reasonable notice of what is required.  See Ryder Truck Lines, 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 are not unforeseeable if the standard is read to require only those protective measures which the knowledge and experience of the employer's industry, which the employer is presumed to share, would clearly deem appropriate under the circumstances.")

[[18]] Several circuits of the Courts of Appeals have held that in order to satisfy due process the Secretary must prove that there is a feasible method of complying with the standard, if the standard does not specify a means compliance.  See L.R. Willson & Sons, Inc. v. OSHRC, 698 F.2d 507 (D.C. Cir. 1983); Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105 (7th Cir. 1982); Voegle 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).