SECRETARY OF LABOR,

Complainant,

v.

MIAMI INDUSTRIES, INC.,

Respondent.

OSHRC Docket No. 88-671

DECISION

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

The primary issue in this case is whether statements and actions by agents of the Occupational Safety and Health Administration ("OSHA") justify vacating a portion of a citation alleging that Miami Industries, Inc. ("Miami") violated the Secretary of Labor's machine guarding standard, 29 C.F.R. § 1910.212(a)(1), [[1/]] by failing to protect its employees from the hazards of inrunning nip points on a series of rollers that form and shape steel in Miami's plant. We find that OSHA misled Miami into believing that a hinged and removable panel guard that it had installed following an earlier citation was sufficient to comply with the terms of the standard. Accordingly, we conclude that Miami was denied fair notice that the Secretary considered its existing panel guards to be inadequate. In addition, we conclude that the factors necessary to establish estoppel against the Government are also present here. For reasons of both lack of fair notice and estoppel, we vacate that portion of the citation which alleges that Miami's existing guards failed to provide proper protection to its employees. We affirm the other allegations of the citation.

FACTS

A. Background

The facts are largely uncontroverted. Miami manufactures welded steel tubing out of coils of flat steel. After the flat steel is slit into various widths depending on the size of the tubing to be made, it then passes through a series of rollers, known as a "tube mill," that gradually form it into a round shape. In order to maintain its high level of product quality, Miami's employees must regularly and frequently remove small bits of metal and other debris, known as "pickups," from the rollers. Approximately 50 pickups occur in an average workday. To remove them, employees hold an emery board, sandpaper, or a file against the roller while it is spinning. Employees will also feel for the location of a pickup by pressing their fingers directly on the rotating surface of the roller. There is no dispute that this essential maintenance procedure can only be conducted effectively and efficiently when the rollers are operating. Although mill operators are highly trained employees and are instructed to remove pickups from the outgoing side of the roller and to place their thumbs on a fixture so that their hands will not slip, it is uncontroverted that these employees are exposed to the hazard of getting caught in and injured by an inrunning nip point when they reach into the area of the rollers in order to clean them.

B. Prior Citation

The facts relating to the fair notice and estoppel issues, arise out of a previous inspection of Miami's tube mills on May 4, 1978. Following that inspection, OSHA issued a citation alleging that the ingoing nip points at the "forming rolls and guide rolls" were not guarded as required by 29 C.F.R. § 1910.212(a)(1). Miami did not contest this citation but rather sought to devise a method of abating the violation. Ronald R. Fox, Miami's industrial relations manager, testified that Charles Barrett, the compliance officer who conducted the 1978 inspection, was not concerned with any hazard that may have been presented to the mill operator during routine operations but rather was only concerned that the mill be guarded to protect someone from slipping and falling against the rollers. Fox described his conversation with Barrett regarding a means of accomplishing this objective:

Q. When Mr. Barrett was there in May of 1978, was there a discussion with respect to interlocked barrier guards or secured barrier guards?

And, please explain to the Judge those discussions.

A. Yes. There was a discussion that the OSHA standard would require either a secured barrier guard or an interlocked barrier guard.

I informed him at the time that we couldn't put interlocked barrier guards in because we couldn't get in to polish the rolls and take the pickups off the rolls which is necessary for us, again, to perform if we're going to produce the quality of tubing that we do.

With respect to fixed barrier guards, he said that if we could put something up, again, to keep someone from falling into that, that would be satisfactory.

According to Fox, Barrett also mentioned four tubing manufacturers in Miami's area who had guards, so that Miami could see for itself how guards could be installed. Fox made arrangements to visit one of the four, Armco Steel. An attorney for one of the other companies informed Fox that that company in fact did not provide guarding for its mills. Fox did not pursue the other two.

The May 1978 citation required that the violation be abated by June 26, 1978. Because it was unable to have access to the Armco facility until June 16, 1978, and for other reasons, including the effect of summer vacations on its work schedule, Miami filed a petition for modification (extension) of the abatement date ("PMA"). On June 20, Ronald J. McCann, the area director for the Cincinnati area office which had issued that citation, granted the PMA. McCann's letter stated, in pertinent part, as follows:

Please note that if you use movable barrier guards, they must be either secured by fasteners that are not readily removable, or they must be used in conjunction with electrically interlocked devices. Electrically interlocked devices must be installed so that when a barrier guard is removed or opened, the machine will shut down.

McCann's letter also advised Fox, ''[i]f there are any further questions concerning this matter, please contact William Murphy at this office."

Upon his visit to the Armco plant, Fox discovered that Armco had guards only at the reels which unwind steel coil at the end of the mill and not for the rollers themselves. Therefore, even though Barrett was the one who suggested Armco as a model, the Armco guarding method would not have satisfied the compliance officer's concerns. Lacking any specific guarding model to follow, Miami had its engineering staff design a guarding method. As a result, Miami installed a set of four vertical metal barriers along the walkway in front of the mill where the machine operators worked. These barriers consisted of an upper and lower section, each hinged so that it could be swung open to allow access to the rollers for the performance of maintenance work. These barriers commenced at a point just past the first set of rollers, such that the first set would be exposed regardless of whether the barrier guards were in their closed position. The record does not explain why the guard was not installed so as to enclose the first set of rollers.

Fox regarded the hinged guard as a secured guard within the meaning of McCann's letter, and therefore acceptable to OSHA, because it could not be knocked down accidentally and could only be opened by lifting the hinged section up and off its pins. In Fox's view, the guard was not readily removable because the only time it would be taken down is when pickups occurred, and he considered the guard effective because reaching into a roller is a conscious act, whereas the guard would protect the operator or anyone in the area from accidental contact. Fox also testified that Barrett subsequently gave express approval to the hinged panel guard device:

Again, I communicated with Mr. Barrett the type of hinging mechanism which we were going to put on the bottom of the guard which we considered and he considered a fixed guard because you have to pick it up and slide it over; and it cannot be knocked down.

Q. This is the design of the hinge?

A. The hinges of the guard, that's correct.

Q. And you described that to Mr. Barrett?

A. Yes.

Q. And he said it was satisfactory?

A. Yes.

Fox also testified that Barrett asked if he could give the blueprints for Miami's guarding design to another company with which OSHA was working and that OSHA later referred a second company to Miami for its guard design. Barrett did not conduct any reinspection of Miami's facility after it installed this guard, and Fox did not make any inquiries of Murphy, whose name was mentioned in the McCann letter of June 20. Although Murphy at the time was a supervisor in the area office, McCann's letter did not indicate Murphy's identity, and Fox testified that lie did not know who Murphy was.

C. Present Citation

Almost ten years after these events, on January 4, 1988, Dennis Collins, another OSHA compliance officer, conducted an inspection of Miami's plant. Collins' inspection, which resulted in the citation that is before us now, was in response to a complaint that employees were required to reach over the existing guards and into the equipment in order to clean the rollers. While investigating this complaint at the worksite, Collins noticed that there was no guard in place around the first set of rollers at the beginning of the mill. He further observed that the hinged guards were open, thus fully exposing the rollers. Fox testified that the guards had been lowered to enable the operators to set up or adjust the rollers in preparation for the production operation. Fox conceded that when the operators had begun to run the mill, they had replaced only the bottom half and not the top half of the guard. Fox also admitted that Miami had difficulty keeping track of the pins used to hold the guards in place. Shortly after Collins mentioned that the guards were partly opened, Miami's superintendent got some pins from the machine shop and secured the guards in place.

Fox conceded that with the top half down, the guards offered only "some" and "not total" protection for employees working or walking along the walkway, but he opined that when the guards are fully closed, they would be completely effective for that purpose. Collins, however, testified that the guards were inadequate because they could be easily opened. In Collins' opinion, the guards should have been held in place by fasteners "that are not readily removable by the operator" or interlocked so that opening the guard would cause the machinery to shut off. Fox, in turn, testified that Collins' view was contrary to the position previously taken by OSHA, in which OSHA had agreed that it was necessary for Miami's employees to reach into the machinery in order to clean the rollers while the mill was operating.

OSHA conducted seven inspections in Miami's plant between the Barrett inspection in 1978 and the Collins inspection approximately ten years later. Until the Collins inspection, however, OSHA had not cited any deficiencies in the guards installed following the 1978 inspection. Fox expressly testified that "it [the guarding] has never been questioned until December of 1987, so that certainly led us to believe that everything was satisfactory." Fox, who had been employed with Miami for twenty-one years, also stated that the only known injury from a nip point at Miami's workplace occurred in November 1987, when an employee was removing a coolant residue from a roller by using the finger of a glove to wipe the roller. The employee's finger became caught in the roller when he tried to remove the glove. Using a glove in this manner was contrary to Miami's instructions.

ISSUES BEFORE THE COMMISSION

The Secretary's citation consists of two separate items comprising essentially four different allegations. Item 1(a) of the citation, which alleges in part that "the existing guards were not secured in place or interlocked to ensure their use," sets forth the primary focus of the citation: Miami's work practice whereby its employees knowingly reach into the area of the rollers to clean them while the mill was operating. However, the Secretary also was concerned with the exposure of employees to a hazard at other times when they were not performing these cleaning operations. Thus, item 1(a) contains a further allegation that employees could come into contact with the rollers because the guards remained partially open while the mill was operating.

The third allegation before us is item 1(b), which states that the first set of rollers had no guard whatever to prevent access to the inrunning nip point.[[2/]] In that portion of his decision addressing the two latter allegations, Judge Burroughs found that the first set of rollers was completely unguarded and that the existing guarding was not fully in place during the inspection. He also found that the mill was operating while the guards were partly open. Thus, he concluded that employees were not protected against accidentally falling into the ingoing nip points. Since the preponderance of the evidence fully supports these findings, and Miami does not dispute them, we affirm these portions of the judge's decision.

In that portion of his decision that is vigorously disputed on review, Judge Burroughs further found that the existing guards were not adequate to protect employees during the cleaning process because they would not preclude employees from having access to the nip points while the rollers are operating. He concluded that there were methods available which would give Miami's employees access to the moving rollers for cleaning purposes while protecting them from exposure to the inrunning nip point itself. However, the judge did not rule on Miami's contention that the Secretary is estopped from requiring any type or method of guarding other than the existing panel guards.[[3/]]

For the reasons stated herein, we conclude that OSHA's enforcement actions deprived Miami of fair notice that OSHA considered its existing guarding device to be inadequate and further find that, under the circumstances in this case, the Secretary is estopped from enforcing the citation to the extent the citation alleges that the hinged panel guards were not capable of protecting the employees. Accordingly, we reverse the judge's decision in part, and we vacate the allegation of item 1(a) that Miami should have provided a secured or interlocked guard.[[4/]]

DISCUSSION AND ANALYSIS

A. Fair Notice

Generally speaking, an employer cannot be held in violation of the Act if it fails to receive prior fair notice of the conduct required of it. E.g., Cardinal Industries, 14 BNA OSHC 1008, 1011, 1987-90 CCH OSHD ¶ 28,510, p. 37,801 (No. 82-427, 1989). The Commission has previously held that because the standard at issue, § 1910.212(a)(1), is a general provision that by its terms applies to a number of different hazards on all types of machinery, statements by OSHA personnel can affect the employer's notice of its obligations under this standard:

In view of the general nature of the cited standard and the lack of any express language specifically addressing die casting machines, [the employer] cannot reasonably be said to have been on notice of a requirement to guard during core pull operations once the Secretary had informed [the employer ] that guarding was not needed at such times.

Hamilton Die Cast, Inc., 11 BNA OSHC 2169, 2172, 1984-85 CCH OSHD ¶ 26,983 at p. 34,690 (No. 79-1686, 1984).  See Diebold, Inc. v. Marshall, 585 F.2d 1327, 1336-37 (6th Cir. 1978) (holding that employer did not have adequate notice that § 1910.212 required guarding of its press breaks).

In this case, however, the Secretary contends that Barrett's statements did not deprive Miami of notice that OSHA considered its panel guards to be inadequate.  In the Secretary's view, Fox's testimony concerning out-of-court statements by Barrett should not be given dispositive weight because of the possibility that those statements are "exaggerated, incomplete, taken out of context, or even false, "citing Morrison-Knudsen, Inc., 13 BNA OSHC 1121, 1124, 1986-87 CCH OSHD ¶ 27,869, p. 36,540 (no. 80-345, 1987).  The Secretary further argues that Miami could not have reasonably relied on Barrett's statements because Barrett did not "officially" approve the guard panels in writing an because McCann's letter took precedence over any contrary statements Barrett may have made indicating approval of the hinged guard.  For the reasons set forth below, we reject these contentions.

1. Use of Barrett's Statements

We first address the threshold question of whether Barrett's oral statements are entitled to probative value. We emphasize at the outset that no issue of credibility is presented. That is, there is nothing in the record to indicate, nor does secretary contend, that Fox was not a credible witness. Accordingly, we conclude, in the absence of any showing or even suggestion to the contrary, that Barrett in fact made the statements Fox attributed to him. See Hamilton Die-Cast, 11 BNA OSHC at 2172 n.2, 1984-85 CCH OSHD at p. 34,689 n.2 (employer's unrebutted testimony of representations by the Secretary's agents is sufficient to establish that those statements were made). We further note that no issue of hearsay is presented. Barrett's statements were properly introduced into evidence as admissions by an opposing party through its agent. Stanbest, Inc., 11 BNA OSHC 1222, 1227, 1983-84 CCH OSHD ¶ 26,455, p. 33,621 (No. 76-4355, 1983). In any event, the Secretary does not challenge their admissibility; nor, for that matter, did the Secretary ever request that Barrett be afforded an opportunity to testify. The only question before us is the weight to be assigned to Fox's testimony of Barrett's statements.

Although Morrison-Knudsen, on which the Secretary relies, observed that an out-of-court declaration "inherently has less probative value" than the testimony of the declarant himself, that decision deals with an out-of-court statement "offered to prove the truth of the matter it contains." 13 BNA OSHC at 1123, 1986-87 CCH OSHD at p. 36,540. That decision is therefore inapposite here because the question in this case is not whether in fact Barrett was being truthful when he indicated that the panel guard would be acceptable to OSHA, but rather whether Barrett's statements caused Miami to act in a certain manner.[[5/]] As we indicated in Hamilton Die Cast, an employer's undisputed testimony of statements by OSHA personnel is entitled to weight on the issue of notice to the employer. See L.R. Willson & Son, Inc. v. Donovan, 685 F.2d 664, 676 (D.C. Cir. 1982) (statements by compliance officers, while not binding, are relevant to whether an employer has adequate notice of the conduct required under a standard using broad terminology subject to differing interpretations). Accordingly, we reject the Secretary's contention that Barrett's out-of-court statements do not have probative value on the issue of Miami's notice of its obligations under the standard.

The Secretary, however, also argues that in the circumstances presented here, Fox did not act reasonably in relying on Barrett's statements. We now turn to that question.

2. Reliance

The facts show that Miami relied not only on Barrett's oral statements to Fox, but also on the actions and conduct of the area office. In addition to his discussions with Fox, in which he told Fox that a particular method of abatement was acceptable, Barrett asked for Miami's blueprints so that OSHA could use Miami's guarding design as a model for another company. Furthermore, the OSHA area office referred still another company to Miami.

Furthermore, contrary to the Secretary's contention, Barrett's statements are corroborated, rather than contradicted, by area director McCann's letter. Fox specifically informed Barrett of his concern that Miami not be precluded from conducting its maintenance operation, which required that the rollers be in motion. Barrett first replied that either a secured guard or interlocked guard was required and thereafter advised Fox that the panel guards were considered a fixed guard because they could not be removed inadvertently. The first sentence of area director McCann's letter plainly states, consistent with Barrett's declarations to Fox, that movable barrier guards must either be secured so that they are not readily removable or they must be interlocked. The second sentence states the purpose of an electrically interlocked device. While the letter is somewhat ambiguous, reading both sentences in context Fox could reasonably have concluded that: (1) McCann also considered the hinged panel guard to be an acceptable alternative to an interlocked guard because it was not readily removable and (2) McCann would have required an interlock to shut off power only if the panels could have been removed or lowered inadvertently. Since there is nothing in McCann's letter inconsistent with Barrett's statements to Fox, we cannot conclude that Fox should have construed McCann's letter as rescinding Barrett's explicit approval of the hinged guard device. The congruity between McCann's letter and Barrett's statements is further corroborated by OSHA's actions in using Miami's guard design as a model for other employers.

In view of the consistent pattern of conduct by the OSHA area office, we conclude that Miami was entitled to rely on the statements and actions by the OSHA personnel.[[6/]] Indeed, because § 1910.212(a)(1) is a broad standard covering all hazards presented by the moving parts of industrial machinery in general, Miami's reliance on OSHA's conduct was not only reasonable but necessary in order for Miami to have appropriate guidance on how to protect its operators from the hazard of inrunning nip points. The situation here is identical to that in Hamilton Die Cast, in which the employer similarly sought the Secretary's assistance in ascertaining its obligations under the standard, and the Commission concluded that the Secretary's response misled the employer into believing that the secretary considered its guarding device to be sufficient.

The circumstances here are also analogous to the facts in a case recently decided by the Eighth Circuit, Ryan Heating Co. v. NLRB, Daily Lab. Rep. (BNA) No. 170 (8th Cir. Aug. 26, 1991). There an administrative law judge dismissed an unfair labor practice charge based on the existing precedent of the National Labor Relations Board ("Board"). Subsequently, the Board decided another case in which it reversed the precedent on which the judge in Ryan had relied. On review of the judge's decision, the Board applied its new precedent and ruled that the employer had committed an unfair labor practice. On appeal, the Eighth Circuit declined to enforce the Board's order, holding that the employer could not have foreseen the change in the case law and that its reliance on the prior Board precedent was reasonable:

As we have said in the past, the essential demands of fairness require that parties like Ryan--who rely on the Board's rulings when conducting their affairs--not "be left subject to entrapment and branding as the perpetrator of an unfair labor practice" merely because the Board later departs from its earlier position.

Id. at D-2 (quoting NLRB v. International Bhd. of Teamsters,Local 41, 225 F.2d 343, 348 ((8th Cir. 1955)).

Accordingly, while the Commission precedent in Hamilton Die Cast is controlling in the circumstances here, the principle of Ryan Heating also supports our holding that OSHA did not give Miami fair notice of any inadequacy in its guard design.

B. Estoppel

1. In General

The principle that a party's actions or conduct may preclude it from asserting a right or claim to which it would otherwise be entitled is known as equitable estoppel. This doctrine is intended to ensure that parties deal with each other in a manner that reflects a fundamental "consideration of justice and good conscience." United States v. Georgia-Pacific Co., 421 F.2d 92, 95 (9th Cir. 1970). As an affirmative defense, equitable estoppel requires a showing that the party to be estopped intends that its conduct will be acted upon by the other party or acts in such a manner that the other party reasonably believes that the first party intends that its actions or conduct be relied on. Id. at 96; Watkins v. United States Army, 875 F.2d 699, 709 (9th Cir. 1989) (en banc), cert. denied, 111 S. Ct. 384 (1990); Che-Li-Shen v. INS, 749 F.2d 1469 (10th Cir. 1984). A party's reliance on the actions or conduct of another is reasonable if the party claiming estoppel did not know nor should have known that the other party's conduct was misleading. As the Supreme Court held in Heckler v. Community Health Serv.of Crawford County, Inc., 467 U.S. 51 (1984),

"The truth concerning these material facts must be unknown to the other party claiming the benefit of the estoppel, not only at the time of the conduct which amounts to a representation or concealment, but also at the time when that conduct is acted upon by him. If, at the time when he acted, such party had knowledge of the truth, or had the means by which with reasonable diligence he could acquire the knowledge so that it would be negligence on his part to remain ignorant by not using those means, he cannot claim to have been misled by relying on the representation or concealment."

467 U.S. at 59 n.10 (quoting Restatement (Second) of Torts § 810 at 219 (1979)). In determining whether a party's reliance on the actions of the other party is reasonable under the Supreme Court's decision in Heckler, we must consider "the objective reasonableness of the reliance." Richmond v. OPM, 862 F.2d 294, 300 (Fed. Cir. 1988), rev'd on other grounds, 110 S.Ct. 2465 (1990).

As we have stated above, Miami acted reasonably in relying on OSHA's conduct at the time the 1978 citation was issued. In addition to relying on the statements and actions by OSHA personnel regarding the 1978 citation, Miami also relied on the fact that OSHA issued no citations for machine guarding violations over the succeeding 10-year period, during which OSHA conducted a number of inspections of Miami's facility. In our view, this reliance was reasonable because Miami could understandably have concluded that the lack of citations for violation of the machine guarding standard over an extensive period of time following the 1978 citation corroborated the statements and actions by the area office at the time the 1978 citation was issued. We in no way retreat from our position that simple failure to issue a citation alleging a violation of a particular standard does not in itself establish that OSHA considers the employer to be in compliance with that standard. Seibel Modern Mfg. & Welding Corp., 14 BNA OSHC 1218, 1223-24 (No. 83-821, 1991); Colombian Art Works, Inc., 10 BNA OSHC 1132, 1981 CCH OSHD ¶ 25,737 (No. 78-29, 1981). Here, however, the absence of further citations corroborated and was fully consistent with Miami's prior understanding that the area office regarded its hinged panel guards as sufficient to comply with the standard. See Cardinal industries, 14 BNA OSHC at 1012, 1987-90 CCH OSHD at p. 37,802 (lack of fair notice of any deficiency in abatement measures found where employer adopted abatement method suggested by compliance officer and thereafter on reinspection the Secretary failed to allege a violation).

In our view, the facts clearly demonstrate a regular and consistent pattern of conduct over a 10-year period, between the 1978 citation and the citation now before us, from which Miami was plainly justified in believing that OSHA regarded its panel guards to be an appropriate means of abatement. Since there had never been any injuries attributable to the guarding, no other circumstances were present that would have put Miami on notice of a defect in its guards. Accordingly, reasonable reliance on the actions and conduct of another party required to establish estoppel has been shown in this case.

2. Estoppel Against the Government

The issue here, however, is not estoppel between two private parties but rather a claim of estoppel by a private party against the Government. It is well-established that for purposes of estoppel, the Government is not equivalent to a private party. As the Supreme Court has explained,

When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well-settled that the Government may not be estopped on the same terms as any other litigant.

Heckler, 467 U.S. at 60. Because it concluded that the "traditional elements of an estoppel" applicable to private parties were not satisfied in that case, the Court declined to decide whether the Government could ever be estopped under any circumstances. However, a number of courts of appeals, including the Sixth Circuit where this case arises, have held that the Government may be estopped, but only if an additional element of "affirmative misconduct" on the part of Government agents is shown. E.g., United States v. River Coal Co., 748 F.2d 1103 (6th Cir. 1984); Portmann v. United States, 674 F.2d 1155 (7th Cir. 1982); Corniel - Rodriguez v. INS, 532 F.2d 301 (2d Cir. 1976); United States v. Wharton, 514 F.2d 406 (9th Cir. 1975). See INS v. Miranda, 459 U.S. 14 (1982) (lower court acted correctly in considering whether the evidence showed affirmative misconduct but erred in concluding that it did).

Actions by Government agents, however, even if reasonably relied on, cannot be given an effect that would result in waiving or altering the employer's legal obligations under the Act. E.g., Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984) (where an employer instituted an employee training program which failed to meet the requirements of the Federal Mine Safety and Health Act, the fact that the Mine Safety and Health Administration had approved the employer's program did not estop the agency from subsequently alleging a violation of the statute, because allowing estoppel would free the employer from an obligation expressly imposed by law).

The Secretary asserts that because the standard at issue in this case requires that inrunning nip points be guarded, finding an estoppel here on the basis of the conduct of the OSHA area office would contravene the principle that actions by Government agents may not be given an effect that would be contrary to the requirements of the law. The Secretary further contends that "affirmative misconduct" has not been shown here. For the reasons set forth below, we reject both arguments.

Unlike the Emery case, we are not confronted here with a statutory or regulatory provision that specifically or explicitly prohibits employees from reaching into the area of moving rollers on a tube mill during a cleaning or maintenance operation. Rather, as previously indicated, § 1910.212(a)(1) is a standard that is general in nature. As we stated in Hamilton Die Cast, "the standard requires that the employer exercise a certain degree of judgment in evaluating whether its machinery is in compliance with the standard and what types of guarding methods would be appropriate to achieve compliance." 11 BNA OSHC at 2171, 1984-85 CCH OSHD at p. 34,689 (citing cases). While the standard is not so broad as to be vague, an employer may appropriately look to extrinsic factors, such as common understanding and practice, as well as "administrative interpretations which clarify obscurities or resolve ambiguities," as guidance in defining the meaning and application of the standard in a particular situation. Diebold,585 F.2d at 1336, 1338. Accordingly, there is not even an issue of waiver presented here. OSHA's actions indicating approval of the hinged guard do not modify or alter the requirements of § 1910.212(a)(1); rather, they define the scope of Miami 's duty under the standard.

Furthermore, contrary to the Secretary's contention, an employer is not necessarily obligated under the Act to correct all hazardous conditions that come within the literal terms of the standard. Miami's contention that the nature of its work operations precluded the use of an interlocked guard or a guard that is not readily removable is an argument that Miami could also have raised through the recognized affirmative defense of infeasibility of compliance. Seibel, slip op. at 23; Williams Enterprises, 13 BNA OSHC 1249, 1253, 1986-87 CCH OSHD ¶ 27,893, p. 36,585 (No. 85-355, 1987). On a sufficient factual showing, Miami would have been entitled to an order vacating the citation allegation in question on the ground that it could not feasibly have taken any further measures to protect its employees from the hazard of inrunning nip points. Seibel, slip op. at 26-27; Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1986-87 CCH OSHD ¶ 27,650 (No. 79-2553, 1986), rev'd & remanded on other grounds, 843 F.2d 1135 (8th Cir. 1988). While we do not now decide whether the merits of the infeasibility defense have been established, [[7/]] we note that our holding of estoppel based on actions by OSHA indicating approval of Miami's panel guards has the same effect as would a Commission order sustaining the affirmative defense of infeasibility of compliance. Both the infeasibility and estoppel defenses permit Miami to comply with the standard by partially but not necessarily fully protecting its employees from the hazard of inrunning nip points. Accordingly, allowing estoppel in these circumstances does not waive or alter the requirements of the law applicable to Miami.

The final issue before us concerns the additional element of "affirmative misconduct" essential. to establish an estoppel against the Government. Between private parties, estoppel may exist where one party is simply silent if the other party relies to its detriment on that silence. American Sec. & Trust Co. v. Fletcher, 490 F.2d 481, 486 n.3 (4th Cir.), cert. denied, 419 U.S. 900 (1974). However, mere acquiescence by the Government in the actions by the private party or the failure of Government agents to act or to respond to the private party will not create an estoppel on the part of the Government. Wharton, 514 F.2d at 412. Conversely, affirmative misconduct does not necessarily require that the Government actually intend to mislead the other party; an active misrepresentation or concealment of a material fact is sufficient. Kriegresmann v. Barry-Wehmiller Co., 739 F.2d 357 (8th Cir. 1984), cert. denied, 469 U.S. 1036 (1984); United States v. Ruby Co., 588 F.2d 697, 703-04 (9th Cir. 1978), cert. denied, 442 U.S. 917 (1979). Furthermore, there is no single test for judging affirmative misconduct; each case turns on its own particular facts. Watkins, 875 F.2d at 707; Lavin v. Marsh, 644 F.2d 1378, 1382 n.6 (9th Cir. 1981). Generally speaking, though, estoppel against the Government may be permitted where the Government's wrongful conduct will result in an injustice to the party claiming estoppel, and imposition of estoppel would not unduly damage the public interest. Watkins, 875 F.2d at 708; City of Long Beach v. DOE, 754 F.2d 379, 388 (Temp. Em. Ct, App. 1985); Morris v. Andrus, 593 F.2d 851, 854 (9th Cir. 1978), cert. denied, 444 U.S. 863 (1979).

The facts here clearly establish that in response to specific concerns raised by Miami, the Secretary's agent, Barrett, expressly informed Miami that a hinged guard device would provide sufficient protection for its employees. Thereafter, OSHA engaged in conduct which plainly demonstrated to Miami that OSHA regarded its guarding device as a model for other employers. Even at that point, however, the Secretary still could have made it clear to Miami that something more than the hinged panel guard was required. Area Director McCann's letter in response to Miami's PMA gave OSHA a clear opportunity to state explicitly and unequivocally that it did not consider the hinged guards to be acceptable. Instead, McCann wrote a letter which was at best ambiguous and which, when read in the context of Barrett's statements and OSHA's other actions, simply reinforced Miami's understanding that OSHA accepted its panel guards.  Assuming for the sake of argument that the panel guards in fact do not comply with § 1910.212 (a) (l), as now argued by the Secretary, we conclude that OSHA's prior overt conduct--Barrett's statements, OSHA's use of Miami's design as a model, and McCann's corroborating letter--rise to the level of affirmative misconduct.  See Watkins, 875 F.2d at 707-08 (repeated misrepresentations as a basis of affirmative misconduct).   Compare Richmond, 862 F.2d at 299 (sufficient misconduct for estoppel existed where Navy personnel gave a disability annuitant erroneous information regarding the period of time for computing the annuitant's outside income) with Chien-Shih Wang v. Attorney General, 823 F.2d 1273 (8th Cir. 1987) (failure of Immigration and Naturalization Service to advise immigrant that his application was incomplete and failure to approve completed application in a timely fashion do not rise to the level of affirmative misconduct).

Fox's testimony also establishes that Miami trains and instructs its operators to clean the rollers in a manner that reduces the risk of injury.   Although the removal of "pickups" is a frequent and regular occurrence, no injuries had resulted from this maintenance operation over a period of twenty-one years.  In the circumstances here, we conclude that the public interest in the effectuation of the Act's purpose to ensure safe working conditions is outweighed by the unacceptable unfairness to Miami that would result from holding it in violation of the Act for using a guarding design that had clearly and unequivocally been approved by OSHA. See Sun Il Yoo v. INS, 534 F.2d 1325, 1329 (9th Cir. 1976) (sense of "justice or fair play" warrants estoppel against the Government); United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir. 1966). As the Court recognized in Heckler, 467 U.S. at 60-61, the public interest in ensuring that the Government can enforce the law free from estoppel may in appropriate circumstances "be outweighed by the countervailing interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government."

EFFECT OF THE COMMISSION'S DECISION

We have decided this case on the grounds of both fair notice and estoppel because Miami's reasonable reliance on misrepresentations of the Secretary necessary to establish estoppel also shows that Miami was denied fair notice of the standard's requirements as applied to the cited working conditions. We emphasize, however, that there is a significant difference between vacating the citation allegation in question for lack of fair notice and vacating it on the ground that the Secretary is estopped from enforcing the standard.

Generally speaking, the question of whether an employer has received constitutionally sufficient notice of its obligations depends upon the extent of its notice at the time the citation was issued. An originally inadequate notice may be cured by subsequent administrative or judicial determinations. Corbesco. Inc. v. Dole, 926 F.2d 422, 428 (5th Cir. 1991); Diebold, 585 F.2d at 1338. The Secretary's position in this litigation clearly places Miami on notice that the Secretary considers the hinged guarding device to be inadequate. Accordingly, if we vacated the citation allegation before us here [[8/]] solely under the principles governing fair notice, Miami would ordinarily be subject to a reinspection and issuance of a subsequent citation if it failed to make appropriate modifications to its guarding device.

This case, however, raises more than simply the issue of whether Miami was entitled to rely on the statements of a compliance officer until such time as Miami received notice to the contrary. Rather, the affirmative defense of estoppel involves the question of whether OSHA's actions in effect constituted a formal approval of Miami's guarding device such that Miami cannot be held in violation of the Act for failing to implement a different means of protecting its employees. See Stone Container Corp., 14 BNA OSHC 1757, 1761, 1987-1990 CCH OSHD ¶ 29,064, p. 38,817 (No. 88-310, 1990) (discussion of circumstances under which an employer may be legally excused from compliance). We are not suggesting that the Secretary is permanently precluded from requiring that Miami install an interlocked or more secure guarding device. In our view, however, the Secretary may not enforce such a requirement merely by issuing another citation. Our finding of estoppel here is analogous to OSHA's granting of a permanent variance from the requirements of a standard, which may be done if the Secretary finds, after conducting a hearing, that:

the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and as healthful as those which would prevail if he complied with the standard.

29 U.S.C. § 655(d). Under this provision, the Secretary must also conduct a hearing before she may revoke such a variance: "Such a rule or order may be modified or revoked . . . by the Secretary on (her) own motion, in the manner prescribed for its issuance. . . . " The Secretary has implemented this provision through regulations affording the employer the right to a hearing before an administrative law judge and the right to administrative and judicial review of an adverse decision by the judge. 29 C.F.R. §§ 1905.13(a)(2), 1905.20-.30, 1905.51. While we need not decide what further remedies are now available to the Secretary as a result of our decision in this case, we conclude, consistent with 29 U.S.C. § 655(d) and the Secretary's regulations, that Miami is entitled to an opportunity to be heard before the Secretary may initiate any future enforcement proceedings pertaining to the guarding device at issue here.

ORDER

Accordingly, we vacate those portions of item 1(a) of the citation alleging that the existing guards were not secured in place or interlocked and were not of such a height or configuration to prevent access from above. We affirm the portion of item 1(a) alleging that the mill was being operated with the hinged guards not fully in place and item 1(b), which alleges that there was no guard at the first set of rollers.

The Secretary proposed a penalty of $360 for the entirety of item 1. The testimony of compliance officer Collins establishes that the only hazard to employees, other than to the operators themselves when removing pickups, is that an employee walking by might be injured if he slipped and fell into the rollers. We conclude that the gravity of the affirmed violation, as modified herein, is low and that a total penalty of $100 is appropriate.

Edwin G.Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: September 13, 1991

SECRETARY OF LABOR,

Complainant,

v.

MIAMI INDUSTRIES,

Respondent.

OSHRC Docket No. 88-671

APPEARANCES:

Christopher J. Carney, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant

John M. Kunst Jr., Esquire, Cincinnati, Ohio, on behalf of respondent

DECISION AND ORDER

Burroughs, Judge: Miami Industries ("Miami"), a manufacturer of welded steel tubing, contests an alleged serious violation of 29 C.F.R. § 1910.212(a)(1) for failing to provide protection to operators and other employees from hazards created by ingoing nip points on forming rolls in its mill number three. [[1]] The alleged violation emanated from an inspection held on January 4, 1988, at Miami's Piqua, Ohio, plant. The Piqua, Ohio, facility has 16 tube mills. The inspection resulted from a formal complaint and was limited to tube mill number three.

Miami manufactures tubing from a quarter inch to four inches in diameter. Ninety-five percent of its products are made pursuant to customer orders. It purchases steel in large coils in widths of 36 or 45 inches. The coils are slit into various widths that are needed to produce the diameter of tubing ordered by the customer. The slit coils of steel are sent to the tube mills where they are formed and welded into lengths of various-sized tubing. Miami manufactures hundreds of different sizes and shapes of tubes.

Seventy-five percent of Miami's product is cold rolled steel and ends up in some kind of plated and/or painted end use application by the customer. Surface quality of tubing being plated and/or painted is of prime importance. Miami has established a reputation for manufacturing high quality tubing and attracts that part of the market which seeks a quality product. It guarantees its customers that the product will be shipped in a condition that is acceptable for plating. It is important to Miami's economic future that surface qualify of its product be free from imperfections. There are 117 major tubing manufacturers east of the Mississippi and 22 in the State of Ohio. During the last three or four years, at least two competitors have achieved the same quality of product offered by Miami (Tr. 120-121).

Mill number three is composed of a line of vertical and horizontal dies or rolls configured in a manner that allows the flat strip steel to be gradually formed into round metal tubing as it passes through the mill (Tr. 188). The large coils of steel are mounted on an "uncoiler" at the beginning of the mill. The flat steel reels off the coil and passes through the "shear and end welder." The welder is used to weld the starting end of a new steel coil to the end of the preceding coil. This allows the tubing to be produced on a continuing basis. The steel next passes through an "edge scarf unit" which cleans and trims the edges of the steel in order to present a true edge for welding after the flat steel has been formed into a tubular shape (Tr. 190).

After the edges of the steel have been prepared for subsequent welding, the steel passes through the first of a series of power-driven rolls referred to as "forming passes." These rolls are mounted on vertical supports and commence to bend the flat steel around a gradually reducing radius. As the steel passes through the "forming passes," it is slightly curved. It then passes through a series of additional dies known as "cluster passes." The cluster passes continue to curve and narrow the radius of the steel so that it appears as a piece of tubing. The tubing next passes through a series of four dies referred to as "fin passes." The purpose of these dies is to align the outer edges of the steel so that they will pass immediately beneath the welding electrode. When the two edges pass beneath the electrode, the tubing is squeezed together and the seam is welded. After the weld is either crushed or scarred to make the welded surface imperceptible to touch or sight, the tubing passes through eight separate dies, alternately mounted either vertically or horizontally and referred to as "sizing passes." The vertical mounted dies are power-driven. The "sizing passes" are designed to further reduce the diameter of the welded tube. After the sizing passes, the tubing passes through vertically mounted "turkshead" rolls which assures that the tubing leaving the mill is straight. The turkshead rolls are power-driven. The last step in the manufacturing process of the tubing is the cutoff machine which cuts the tubing into predetermined shipping lengths.

The dies used in the mill are made of very high grade, hardened steel. They are circular in shape. As steel passes through each pair of forming dies, a nip point is created on the ingoing side. As the steel passes through the power-driven pairs of dies, minute particles of steel break away from the edges or welded seam and frequently become imbedded in the surface of the dies. In order to achieve the quality sought by Miami, it is important that the tube mill operators and their assistants remove the "pickups." The "pickups" have in the past been removed while the mill is operating and the dies are rotating. It is more efficient from the standpoint of production to remove the "pickups" while the dies are rotating.

The "pickups" are located by touch. The operator or assistant lightly presses a finger into the outgoing surface of the die. Once a "pickup" is located, it is most often removed by merely pressing a piece of emery cloth into the groove of the die until the pickup disappears. "Pickups" in awkward locations are removed with emery cloth wrapped around the end of a stick, rod or some similar extension. The stick allows the operator's hands to be some distance from rotating parts and the ingoing nip points. There is a need for employees to have access to the dies in order to remove the "pickups."

Alleged Violation of 29 C.F.R. § 1910.212(a)(1)

The serious citation alleges that Miami violated 29 C.F.R. § 1910.212(a)(1) by failing to guard tube mill number three in a manner designed to protect operators and other employees from hazards created by ingoing nip points. Specific allegations set forth in the citation were as follows:

(a) Mill #3 was being operated with its mill roll guards out of place fully exposing the inrunning rolls. In addition, the existing guards were not secured in place or interlocked to ensure their use nor were they of such a height or configuration that they would prevent access to the inrunning rolls from above the guards.

(b) Mill #3 had no guarding to prevent access to the inrunning nip point created by the first set of rolls past the welder.

The allegations make clear that no attempt had been made to guard the ingoing nip points created by the first set of rolls past the welder and that barrier guards utilized at other points along the line failed to adequately protect employees from the hazards of the ingoing nip points. Employees could reach into the ingoing nip points with the guard in place. The height and location of the barrier guards were not sufficient to preclude contact (Tr. 28).

The Secretary alleges that employees are exposed to ingoing nip points while cleaning away the "pickups." Miami's manager of industrial relations, Ronald Fox, conceded that there is a hazard on the ingoing side of the dies and rolls (Tr. 167). According to him, Miami recognized the hazard and, for that reason, operators are instructed to remove pickups from the outgoing side of the rolls or dies (Tr. 167-168). He further conceded that while an employee is removing "pickups," he is close to the ingoing side of the rolls (Tr. 168). In some cases the employee would be only a few inches from the ingoing nip points (Tr. 168).

Miami points out that all 16 of its tube mills were inspected in 1978 by Compliance officer Charles Barrett. As a result of the. inspection, a citation was issued to Miami on May 25, 1978, alleging a violation of 29 C.F.R. § 1910.212(a)(1) for failure to guard ingoing nip points on forming and guide rolls on the 16-tube mills (Ex. R-3). As a result of that citation, Miami developed a hinged barrier guard which acts as a shield between the tube mill components and persons who might otherwise pass in front of the mill. The hinged guards are held in the "up" position by pins.

Compliance officer Dennis Collins determined the hinged guards, even when in place, [[2]] were inadequate to protect employees because the height and location were not sufficient to preclude contact with the ingoing nip points. The guards were designed and installed in such a way as to allow access to the rolls (Tr. 92.). Miami concedes that operators could reach over the barrier guards into the rolls to clean them of any "pickups" that could damage the product being run through the line (Tr. 32). Miami insists that operators have to have easy access to the rolls to clean them of "pickups." If the barrier guards were made higher, they would preclude employee access to the rolls (Tr. 27-31). Cleaning of the "pickups" takes place while the tube mill is running since this has been determined to be the fastest and most effective means of removing "pickups."

The cited standard, 29 C.F.R. § 1910.212 (a) (l), [[3]] requires that machine guarding be provided to protect the operator and other employees in the machine area from hazards created, among other things, by ingoing nip points.   Examples of guarding methods to be utilized include barrier guards, two-hand tripping devices and electronic safety devises.  There is no dispute over the fact that ingoing nip points are created by the rolls as they rotate.  There is also no dispute over the fact that employees are exposed to ingoing nip points during the operation of the mill.  This is especially true while removing "pickups."

The facts unequivocally establish that Miami was in violation of 29 C.F.R. § 1910.212 (a) (l) at the time of the inspection.  There was no type of guarding utilized for the first set of rolls past the welder (Ex. C-1; Tr. 23).   Anyone walking in close proximity to the rolls would have been exposed to ingoing nip points.  There was a walkway.  These employees included setup operators, assistant operators and operators (Tr. 124). Even if the remaining barrier guards had been in compliance, the top halves of the guards were not in an "up" position at the time of the inspection (Tr. 165-166) and provided no protection against someone accidentally falling into the ingoing nip points (Tr. 165-166). The Secretary has established that the ingoing nip points were unguarded and that the method of operation of the mill exposed employees to injury. These facts are sufficient to establish a violation of 29 C.F.R. § 1910.212(a)(1). The next dispute centers on how the condition can be abated.

The barrier guards in use were an inadequate means of abatement. A barrier guard to be effective has to be high enough to preclude entry into the ingoing nip point. It also must be secured so it is not readily removable. If it can be removed, then it should be interlocked so that the equipment cannot be operated while the guard is not in place (Tr. 28). Miami insists that access must be available to the rolls while they are rotating to efficiently remove "pickups." It asserts that electronically interlocking barrier guards that would shut down the mill every time an employee cleans "pickups" from the rolls would be economically infeasible. It submitted evidence to show "pickups" are a continual problem and that the use of interlocking barrier guards would result in severe production loss. The loss in production would raise the cost of the product and result in undermining Miami's competitive status within the industry. Miami has adequately demonstrated that interlocking barrier guards would destroy its competitive advantage and bring economic ruin to its business operations. However, this is not the only means of compliance with 29 C.F.R. § 1910.212(a)(1).

The Secretary does not contend that interlocked barrier guards are the only means of abating the violation. Barrier guards had previously been erected by respondent and the citation description merely set out why the erected guards were not adequate for abatement purposes. The barrier guards in place were the means by which Miami sought to abate the previous citation issued in 1978. Compliance Officer Collins suggested other methods of abatement. He suggested that individual guards be placed on the ingoing portions of the rolls. This would give the person cleaning the "pickups" access to the outgoing portion of the rolls without endangering them to ingoing nip points (Tr. 58). Collins also suggested a panic bar stop device across the front of the machinery (Tr. 87). A panic bar devise would have to be located at such a height and distance that the operator, if caught in the equipment, could shut the machinery off without being required to make a concerted effort. Collins further suggested developing a hand tool to be used in conjunction with slotted barrier guards to allow access of the hand tool into the danger area without allowing the hand into the danger area (Tr. 96).

Aside from the barrier guards, Miami has not attempted to implement any abatement measures to comply with the standard (Tr. 180-181). It has simply taken the position that no other means of abatement is possible and considers any other suggestions by Compliance Officer Collins to be "fruitless experimentation" (Tr. 182).

In Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135, 1139 (8th Cir. 1988), the court stated:

* * *The employer bears the initial responsibility to comply with the standards promulgated by the Secretary. Where the employer determines that the specified means of compliance is infeasible, it must affirmatively investigate alternative measures of preventing the hazard, and actually implement such alternative measures, to the extent feasible. * * *An employer experienced in performing this duty adequately should possess knowledge of the alternative means of compliance existing in the industry. To the extent that the employer requires further assistance in discovering alternative means of protecting its employees, it may look to the OSHA standards themselves.

The court goes on to state that "[t]he Act imposes an obligation on employers to become aware of, and to actually implement, alternative means of compliance where feasible." 843 F.2d at 1139. In concluding that the employer bears the burden in proving infeasibility of alternative methods of compliance, the court recognized that "the placement of the burden of proof may often be outcome determinative." 843 F.2d at 1140. While interlocking barrier guards may be economically infeasible, there has not been an adequate showing by Miami to establish that compliance with other suggested abatement methods are not feasible. The violation has been established.

Nature of Violation

The Secretary alleges that the violation was serious within the meaning of section 17(k) of the Act. [[4]] "To establish that a violation is 'serious' it must be shown that there is a substantial probability that death or serious physical harm could result from the violative condition and that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation." Wisconsin Electric Power Co., 76 OSAHRC 134/B2, 4 BNA OSHC 1783, 1787, 1976-77 CCH OSHD 21,234 at p. 25,532 (No. 5209, 1976), aff'd, 567 F.2d 735 (7th Cir. 1977). The Secretary does not have to establish the likelihood of an accident before a violation can be classified as serious. He "need only show that an accident is possible and that such an accident will most likely result in serious injury." Communications, Inc., 79 OSAHRC 61/A2, 7 BNA OSHC 1598, 1602, 1979 CCH OSHD ¶ 23,759, at p. 28,813 (No. 76-1924), aff'd in an unpublished opinion, No. 79-2148 (D.C. Cir. 1981).

Miami was aware of the conditions that constitute the hazard in this case. Employees were encouraged to clean "Pickups" from the rolls by using their hands. Compliance officer Collins expressed the view that the ingoing nip points could cause lacerations, crushing injuries to the fingers or hands or broken bones (Tr. 32-33). This is sufficient to categorize the hazard as being serious within the meaning of section 17(k) of the Act.

Penalty Determination

The Commission is the final arbiter of penalties in all contested cases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j) [[5]] of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., Inc., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ¶ 15,032 (No. 4, 1972).

The operator and assistant operator of the tube mill reach into the outgoing side of the rolls to clean the rolls of accumulated debris, referred to as "pickups." The removal of "pickups" is a constant problem. During this removal procedure, the employees are close to the ingoing nip points and exposed to potential lacerations or crushing injuries. The speed of the rolls are approximately 60 r.p.m. (Tr. 34). There was no evidence of any nip point injuries to Miami's employees over the last 20 years (Tr. 73-74). A citation was issued in 1978 covering the same condition. Miami cooperated during the inspection. A penalty of $300 is assessed for the violation.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact and conclusions of law contained in this opinion are incorporated herein in accordance with Rule 52 of the Federal Rules of Civil Procedure.

ORDER

In view of the foregoing, good cause appearing therefor, it is ORDERED: (1) That the "other" citation issued to Miami on January 19, 1988, is affirmed; and
(2) That the serious citation issued to Miami on January 19, 1988, is affirmed and a penalty of $300 assessed for the violation.

JAMES D. BURROUGHS
Judge

Date: February 27,1989

FOOTNOTES:

[[1]]The standard provides as follows:
§ 1910.212 General requirements for all machines.
(a) Machine guarding (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are-barrier guards, two-hand tripping devices, electronic safety devices, etc.

[[2/]] The fourth allegation is summarily dismissed in note 4, infra.

[[3/]] Miami raised estoppel as an affirmative defense in its answer. It did not explicitly argue before the judge that the citation should also be vacated on fair notice grounds alone. Nevertheless, review was directed on whether OSHA's prior enforcement actions deprived Miami of fair notice of the requirements of § 1910.212(a)(1), along with several other issues. In their review briefs, the parties address both the fair notice and estoppel questions.

[[4/]] This portion of item 1(a) also alleges that the existing guards were not "of such a height or configuration that they would prevent access to the inrunning rolls from above the guards." In support of this allegation, Collins testified that even with the top half of the guards in the closed position, the guard panels would not prevent contact with the rollers. In his opinion, the height and "location" of the panels was not adequate to keep employees away from the rollers. The judge did not specifically rule on this allegation but noted Collins' testimony in his decision.

We conclude, however, that contrary to compliance officer Collins' opinion, the entirety of the record clearly demonstrates that the existing guards did extend high enough above the rollers to protect Miami's employees. Fox stated that the guards were equipped with hinged and removable sections precisely because employees could not gain access to the rollers simply by reaching over the guards. Fox's testimony is consistent with Collins' own measurements, which showed that the top section of the guard was 52 inches above the floor and the rollers 21 inches below the top of the guard. It is apparent that with the guard in the fully closed position, employees would be exposed to the nip points only if they deliberately bent over the top of the guard and extended their hands into the rollers. Accordingly, we conclude that the hinged guards were sufficient to protect employees except during the maintenance operation, when employees lowered the guard in order to have access to the rollers for cleaning purposes.

[[5/]] Judge Burroughs so ruled at the hearing. The Secretary's counsel objected that Fox's testimony of statements Barrett made to him was inadmissible hearsay. In response to an inquiry from the judge, Miami's counsel explained that he was trying to establish that Barrett's statements induced Miami to take a certain course of action, rather than that Barrett's statements were truthful. The judge ruled, without objection or exception by either counsel, that the testimony was admissible to show the actions Miami took but did not necessarily establish the truth of Barrett's statements.

[[6/]] We reject the Secretary's related contention that Miami could not have reasonably relied on Barrett's statements because Barrett did not actually observe the panel guards after they had been installed and because McCann's letter stated that Fox should contact William Murphy. Fox testified that he fully described the proposed panel guards to Barrett and that Barrett did not request any further details. Fox was justified in concluding that Barrett had all of the information he required, particularly after Barrett asked for copies of Miami's blueprints. By the same token, McCann's letter did not require Fox to contact Murphy; rather, the letter merely advised Fox that any questions should be directed to Murphy. The letter did not indicate Murphy's position or title, and nothing in the letter suggests that Barrett was not authorized to deal with Miami regarding abatement of the violation.

[7/]] Under Seibel, an infeasibility defense is established where the employer demonstrates that compliance with the terms of the standard would not be feasible and that there were no alternative means of protecting its employees. Here, Judge Burroughs found that it was necessary for the rollers to be cleaned while running and that a guard not readily removable or an interlocked guard to cut off power to the rollers if removed would effectively prevent Miami from conducting its cleaning operation. However, the judge noted that compliance officer Collins had testified about other means Miami could have taken to safeguard its employees, and he concluded that Miami had not adduced evidence to show that implementing these other means would have been infeasible. In view of our disposition, we do not decide whether the elements of the infeasibility defense have been proven.

[[8/]]In Martin v. OSHRC (CF&I Steel Corp.), 111 S. Ct. 1171, 1179 (1991), the Court held that issuance of a citation alone may afford appropriate notice to an employer of its obligations under a standard susceptible of more than one interpretation. The issue in CF&I, however, was whether the Secretary's interpretation of the standard was entitled to deference. The Court did not decide the question presented here: whether a consistent and ongoing pattern of conduct by the Secretary's agents denied the employer fair notice of the requirements of the standard. We further note that the Court did not necessarily consider issuance of a citation to be conclusive. As the Court stated, "the decision to use a citation as the initial means for announcing a particular interpretation may bear on the adequacy of notice to regulated parties" and that "other factors relevant to the reasonableness of the Secretary's exercise of delegated lawmaking powers" are also to be taken into consideration. Id. at 1180 (emphasis added). Among other things, the Court stated that "whether the Secretary has consistently applied the interpretation embodied in the citation" will have a bearing on the "reasonableness of the Secretary's position." Id. at 1179. In our view, the fact that the Secretary on several occasions advised Miami that its guarding device complied with the abatement requirements of the 1978 citation and thereafter declined to issue citations over an extensive period of time militates against the Secretary summarily reversing her position simply through the issuance of another citation.

We note that the Sixth Circuit reached a similar result in Diebold, Inc. v, Marshall, 585 F.2d 1327, 1339 (6th Cir. 1978). In Diebold, the Secretary issued a citation alleging that the employer violated § 1910.212 by not guarding its press brakes. The Commission affirmed the citation, rejecting the argument that the standard was not applicable. The court. concluded that at the time the citation was issued, the employer did not have fair notice that § 1910.212 applied to press brakes, but that the Commission's decision gave the employer the requisite notice. Despite the fact that the employer was now aware of its obligation under the standard, the court held that it would not be appropriate to require the employer to implement the abatement method specified in the citation, and it vacated the citation. Cf . Ryan Heating Co. v. NLRB , Daily Lab. Rep. (BNA) No. 170 (8th Cir. Aug. 26, 1991) (court declines to give retroactive effect to a decision of the National Labor Relations Board where the employer had reasonably relied on a prior contrary precedent of the Board and retroactive application would have a substantial detrimental impact on the employer).

[[1]] The notice of contest also placed in issue and alleged "other" violation of 29 C.F.R. § 1910.22(a)(l). On May 13, 1988, a withdrawal of its notice of contest to the alleged "other" violation was received from respondent.

[[2]] At the time of the inspection, the top half of the barrier guards were not in the "up" position while the mill was operating (Tr. 22-23, 166). The pins had been removed. Compliance Officer Collins discovered the pins that held the hinges had not been in use for two weeks (Tr. 165-166).

[[3]]Section 1910.212(a)(l) of 29 C.F.R. provides:

(a) Machine guarding--(1)    Types of guarding.  One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.   Examples of guarding methods are--barrier guards, two-hand tripping devices, electronic safety devices, etc.

[[4]] Section 17(k) of the Act provides:

(k) For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[[5]] Section 17(j) of the Act states:

(j) The Commission shall have authority to assess all civil penalties provided in this section, giving, due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.