MARION POWER SHOVEL CO., INC.  

OSHRC Docket No. 76-4114

Occupational Safety and Health Review Commission

October 31, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Carl H. Hellerstedt, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case is before the Commission for review under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Following an inspection, the Secretary of Labor ("the Secretary") issued five citations to the Respondent, Marion Power Shovel Company, Inc. ("Marion Power").   The Secretary alleged, among other things, that Marion Power failed to comply with the safety standard at 29 C.F.R. §   1910.252(e)(1)(i). n1 Administrative Law Judge Joseph Chodes affirmed this item, item 5 of citation 5, as an other than serious violation of the Act and assessed a penalty of $85.   Respondent petitioned for review of the judge's decision regarding this single item, and review was granted by Chairman Cleary.   For the reasons that follow we affirm the judge.

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n1 The standard provides as follows:

(e) Protection of personnel - (1) General -- (i) Railing. A welder or helper working on platforms, scaffolds, or runways shall be protected against falling. This may be accomplished by the use of railings, safety belts, life lines, or some other equally effective safeguards.

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I

Marion Power manufactures surface mining equipment.   One of the many components of surface mining equipment manufactured by Marion Power is a piece known as a "dipper back." The record indicates that a dipper back is a large piece of oddly shaped metal equipment approximately 10 feet high, 8 feet long and 6 feet wide, and composed of a series of steel plates welded into place.   When in use, a dipper back serves as a shovel to scoop up earth.   At the time of the inspection in this case, it is undisputed that an employee was standing on a 24 inch square area of steel on the dipper back approximately 8 1/2 feet above the floor. The employee was operating a chipping hammer to smooth the surface of the dipper back.   The employee was not protected from a possible fall.   As a result of the inspection, the Secretary issued several citations to the Respondent for alleged violations of the Act.   An item in one citation alleged an other than serious violation for noncompliance with section 1910.252(e)(1)(i).   Marion Power contested the item.

At the hearing before Judge Chodes, the compliance officer testified [*3]   that the employee could lose control of the chipping hammer, causing him to lose his balance and fall to the floor. The compliance officer suggested several ways to protect the employee from a fall.   According to the compliance officer, an employee could perform the chipping while on a mobile lift platform. Such platforms, which could have been equipped with guardrails, were available for use by Respondent's employees and could have been moved alongside the dipper back.   Because an employee working from a mobile platform could not reach all areas of the dipper back, the compliance officer admitted that it would be necessary at times for an employee to perform chipping operations while standing or sitting directly on the dipper back.   The compliance officer suggested that under such circumstances an employee could wear a safety belt and tie off to some stable object in the area such as a mobile lift platform, a hole in the dipper back, or to U-bolts that could be welded onto the dipper back specifically for that purpose.

Respondent's safety director asserted that guardrails attached to the dipper back and the use of the protective devices suggested by the compliance officer would [*4]   be infeasible.   He stated that guardrails and U-bolts could not be attached directly to the dipper back because it was frequently moved and turned for access to its entire area.   Further, he claimed that the shape of many dipper backs made it impossible to install guardrails. In addition, he testified that a mobile lift platform would not provide access to all places on the dipper back where welding was necessary.   According to the safety director, safety belts and lanyards were infeasible because they presented a tripping hazard by coiling at the worker's feet. Furthermore, he stated that the belts and lanyards might ignite or be weakened by hot sparks and that the sharp edges of the steel or weld slag could fray a lanyard and substantially weaken it.   Respondent's safety director also stated that the 6 foot length of the lanyard would not provide adequate protection because it necessarily would be attached to the dipper back below the employee's waist-level.   The safety director explained that, for an employee 5 1/2 to 6 feet tall, this would add about 3 feet fall distance to the 6 foot free fall afforded by a 6 foot lanyard, for a total fall of about 9 feet. Thus, because the [*5]   worker was only 8 1/2 feet above the floor, he would hit the ground before the lanyard could stop the fall.

In rebuttal, the compliance officer claimed that the length of the lanyard could be adjusted to stop a fall of 8 1/2 feet. In addition, he stated that the lanyard would fray only if subjected to rubbing against the steel edges while under pressure.

The judge concluded that the Respondent failed to establish the affirmative defense of impossibility. In his decision the judge did not respond to Marion Power's greater hazard defense.   The judge reasoned that as long as some methods suggested by the compliance officer would not interfere with welding operations, then adherence to the Act would not render work impossible.   He found that positioning a mobile platform with guardrails alongside the dipper back as well as tying the lanyard to a hole in the piece itself would protect against a fall for most of the work that needed to be done.   In his decision the judge noted that Respondent may "wish" to consider applying to the Secretary for a variance under section 6(d) of the Act, 29 U.S.C. §   655(d), in light of the problems presented by the peculiar configuration of the dipper [*6]   back.

II

On review, the Respondent contends that the judge erred in failing to make a distinction between the affirmative defense of impossibility and the Secretary's burden of demonstrating feasible abatement methods.   The Respondent argues in this case that the Secretary must first establish the feasibility of each of the compliance officer's suggestions for protecting an employee from a fall.   To support this proposition, Marion Power cites to note 6 of Engineers Construction, Inc., 75 OSAHRC 84/E11 1537 3 BNA OSHC 1517, 1975-76 CCH OSHD P20,012 (No. 3551, 1975), which stated that the law under an alleged violation of section 5(a)(1), 29 U.S.C. §   654(a)(1), the general duty clause, is equally applicable to an alleged violation of a specific standard under section 5(a)(2), 29 U.S.C. §   654(a)(2) of the Act.   Based on this premise, Marion Power argues that compliance with a specific standard, as here, should be viewed in terms of achievability rather than absolute compliance, citing National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). The Respondent then cites to the Commission's decision in Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729,   [*7]   1976-77 CCH OSHD P21,162 (No. 7792, 1976), and submits that in order for the Secretary to establish noncompliance with section 1910.252(e)(1)(i), he must allege specific remedial measures, unless supplied by the standard, and prove the feasibility of these suggested measures.

Marion Power asserts that the Secretary did not establish the feasibility of any abatement method.   It further asserts the affirmative defense of greater hazard. The Respondent argues that inasmuch as fall protection cannot be provided in every situation, it is impossible for employees to comply with the standard and continue to perform their job.   Marion Power also argues that tying off the lanyard below the point of operation causes a greater hazard because it violates section 1926.104(b) n2 and creates the hazards of tripping, fraying and entanglement of the lanyard.

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n2 29 C.F.R. §   1926.104(b) states:

Lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds.

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In his letter in lieu of a brief, the Secretary asserts that when a standard such as section 1910.252(e)(1)(i) suggests specific remedial measures, the Secretary need not demonstrate the feasibility of such proposed measures, citing Floyd S. Pike, Inc., 75 OSAHRC 31/D1, 2 BNA OSHC 1520, 1974-75 CCH OSHD P19,274 (No. 3069, 1975), vacated and remanded on other grounds, 557 F.2d 1045 (4th Cir. 1977). The Secretary argues that the suggested methods of abatement do not create a greater hazard because the evidence demonstrates that the use of the mobile lift platform or safety belts will protect employees under most circumstances.   In addition, the Secretary maintains that as long as lanyards can be secured above the point of operation in some instances, the Respondent is not excused from compliance with section 1910.252(e)(1)(i) even if under some circumstances such compliance would violate section 1926.104(b).

III

The Commission has held that in enforcing a broadly worded standard "the Secretary's burden is greater than it is with respect to standards that presuppose the existence of specific hazards when the requirements of the standard are not met." S &    [*9]   H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1266 n.22, 1979 CCH OSHD P23,480 p. 28,439 n.22 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979) ("S & H Riggers").   The standard cited in this case, 29 C.F.R. §   1926.252(e)(1)(i), which states "[a] welder or helper working on platforms, scaffolds, or runways shall be protected against falling," creates a specific duty in that it assumes the hazard of falling exists where welders or helpers perform their duties while positioned on "platforms, scaffolds, or runways." The cited standard goes on to list a number of alternative ways in which an employer may fulfill its specific duty to provide effective protection against falling. Such guidance as to alternative methods of compliance does not alter or diminish the specific duty imposed by the standard but rather is designed to aid employers in fulfilling that duty.   We thus conclude that the standard at 29 C.F.R. §   1926.252(e)(1)(i) is a specific duty standard to which the application of a section 5(a)(1) or general duty analysis, as Respondent urges, would be inappropriate.   See S & H Riggers, supra at 1266. n3 Thus, the Secretary's [*10]   burden of proof in demonstrating a violation of 29 C.F.R. §   1926.252(e)(1)(i) is no greater than that in any other case in which a violation of section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), has been alleged.

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n3 Under consideration in S & H Riggers was the standard at 29 C.F.R. §   1926.28(a) which states:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to employees.

In S & H Riggers, the Commission held that in view of the "broad terms" of 29 C.F.R. §   1926.28(a), it is appropriate to require the Secretary to establish "employee exposure to a hazardous condition requiring the use of personal protective equipment and [to] identify the appropriate form of personal protective equipment to eliminate the hazard." (Footnote omitted.) The standard at issue in this case, §   1926.252(e)(1)(i), is not "written in broad terms" as is the standard considered by the Commission in S & H Riggers.

In his concurring opinion in S & H Riggers, Commissioner Barnako stated that he would adhere to the interpretation of §   1926.28(a) expressed in Frank Briscoe, Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P22,162 (No. 7792, 1976), and would require the Secretary to prove the feasibility of the personal protective equipment that the Secretary has recommended.   Commissioner Barnako agreed with the S & H Riggers majority that for cases involving an alleged violation of a specific standard, it is enough to require proof by the Secretary that the provisions of the specific standard have been violated.   S & H Riggers at 1269.   For an "extremely broadly worded standard," however, such as §   1926.28(a), Commissioner Barnako concludes that the Secretary's burden of proof includes elements such as those discussed in Frank Briscoe. S & H Riggers at 1269.   In this case, Commissioner Barnako agrees that the standard at issue, §   1926.252(e)(1)(i), is specific, that is, it is not written in terms so broad as to require a more substantial burden of proof on the part of the Secretary.

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In Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1235, 1979 CCH OSHD P23,440, p. 28,373 (No. 76-1480, 1979), the Commission stated, "[I]n order to prove a violation of section 5(a)(2) of the Act, the Secretary must establish that a particular standard applies to the facts, that the cited employer failed to comply with the standard, and that the cited employer's employees had access to the hazard." Thus, the Secretary need not prove the "feasibility" of the remedial measures suggested by the compliance officer.

Applying the criteria set forth in Belger Cartage Service, Inc., supra, to the facts in this case we conclude that the Secretary established a prima facie violation of section 5(a)(2) of the Act.   It is undisputed that a welder was operating a chipping hammer while standing on a dipper back.   It is further undisputed that the employee was not protected against falling. The Secretary thus made out the elements necessary to prove a violation of the cited standard.

Marion Power's challenges to the feasibility of suggested compliance measures involve the elements of [*12]   three affirmative defenses recognized under Commission precedent, i.e., impossibility of compliance, impossibility of performance, and greater hazard. In order to establish one of the impossibility defenses, the employer must prove that (1) compliance with the requirements of the cited standard either would be functionally impossible or would preclude performance of required work, and (2) alternative means of employee protection are unavailable.   M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 79 CCH OSHD P23,330 (No. 15094, 1979), and cases cited. n4 In order to sustain a claim of greater hazard as a defense, a Respondent must prove that (1) compliance with the cited standard would diminish rather than enhance employee safety, (2) alternative means of protecting the employees are unavailable, or if available, are used, and (3) a variance application under 29 U.S.C. §   655(d) is inappropriate.   H.S. Holtze Construction Company, 79 OSAHRC 82/A2, 7 BNA OSHC 1753, 1979 CCH OSHD P23,925 (No. 16059, 1979), rev'd in part on other grounds, No. 79-1957 (8th Cir. Aug. 8, 1980).

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n4 Marion Power's contention that the citation must be vacated because each of the Secretary's proposed abatement measures are not feasible is misplaced.   With narrow exceptions, not applicable here, the proper inquiry regarding the affirmative defense is one of "impossibility" rather than "feasibility" or "infeasibility," Hughes Brothers, Inc., 78 OSAHRC G5/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978), and cases cited.

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The Respondent's asserted defenses of impossibility of compliance and performance are not sustained by the record in this case.   The judge correctly found that Marion Power could comply with the cited standard by requiring the use of a safety belt tied off to a hole in the dipper back or by having its employees perform the work from a mobile platform with guardrails. These findings are enough to reject the defenses of impossibility of compliance and performance.   See Martin-Tomlinson Roofing Company, Inc., 80 OSAHRC 4/B12, 7 BNA OSHC 2122, 1979 CCH OSHD P24,167 (No. 76-2339, 1979).

We now turn to the Respondent's defense that compliance with the cited standard would create a greater hazard. Marion Power asserts that the use of safety belts tied off to a stable object would create hazards (e.g., tripping) greater than the hazard of falling off the dipper back.   The argument lacks merit.   The judge correctly found from the testimony of the compliance officer that the length of the lanyard "could be adjusted so as not to interfere with the movements of the welder." Thus, the record does not show [*14]   that compliance would create a hazard. Moreover, the defense of greater hazard requires a showing of increased risk, not the mere possibility of a different hazard. See Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHD P24,006 (No. 14907, 1979).   Marion Power contends that tying off to a place below the point of operation creates a greater hazard by violating section 1926.104(b).   See note 2, supra. However, the compliance officer pointed out that the employee he observed could have tied off effectively to a manlift at the side of the dipper back or through a hole in the dipper back itself a little below waist level.   He testified that either step would have prevented a fall to the floor. Even where an employer cannot fully comply with all standards, it must still provide such protection as is possible.   See Martin-Tomlinson Roofing Company, Inc., supra.

Accordingly, we conclude that the Secretary has established a prima facie case of noncompliance with section 1910.252(e)(1)(i) and that Marion Power has not established the affirmative defenses of impossibility of compliance, impossibility of performance or greater hazard.

The judge's [*15]   decision is affirmed.

SO ORDERED.