SECRETARY OF LABOR, Complainant, v. SHARON STEEL CORPORATION, Respondent. UNITED STEELWORKERS OF AMERICA, LOCAL 1197, Authorized Employee Representative. OSHRC Docket No. 80-7251 _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). Sharon Steel Company ("Sharon") operates a steel processing facility in Farrell, Pennsylvania. Following an OSHA inspection of the worksite on August 19, 1980, the Secretary of Labor issued a citation alleging that Sharon violated the Act's "general duty" clause[[1]] in that employees performing a certain maintenance operation were exposed to a hazard of being struck by flying fragments of steel. Administrative Law Judge George O. Taylor, Jr. concluded that Sharon violated the Act as alleged. We reverse and vacate the citation. The citation alleged that employees were exposed to the hazard of flying steel while working on machinery Sharon uses to temper, or harden, the surface of sheet steel. Sheet steel arrives at Sharon's Number 28 Temper Mill on large rolls. A roll is placed vertically on a device called a vertihort, the function of which is to change the sheet steel's orientation from vertical to horizontal. The horizontally-oriented steel that emerges from the vertihort is then threaded around and past two rollers before passing through the temper mill. The function of these rollers, called "bridle rolls," is to maintain the proper tension in the steel. Sharon's temper mill is the only one in North America that uses such a vertihort arrangement. Normal wear of the bridle rolls requires their replacement two or three times per year. The rolls are also replaced on infrequent occasions when unexpected defects develop. When the bridle rolls are being changed, sheet steel cannot be run off the vertihort. However, operation of the mill can continue by placing the roll of steel being fed into the mill on a horizontal reel, called the payoff reel, located between the bridle rolls and the temper mill. It was Sharon's policy to shut down the mill when employees were changing bridle roll No. 1 to avoid the possible hazard of contacting the rotating steel on the payoff reel, which was 9 feet 6 inches from bridle roll No. 1. However, since bridle roll No. 2 was 6 feet farther away from the payoff reel, employees could change bridle roll No. 2 while sheet steel was being fed into the mill from the payoff reel. The Secretary alleges that employees who changed bridle roll No. 2 while steel was being fed off the payoff reel were exposed to the hazard of flying fragments of steel in violation of section 5(a)(1) of the Act. The evidence in the record indicates that on occasion the sheet of steel breaks while being fed off the payoff reel at high speeds. When that occurs, the broken end could shatter upon striking a solid object, producing fragments of steel. There was conflicting evidence as to whether these fragments could endanger employees working on bridle roll No. 2. Several Sharon employees testified that they were nearly struck by flying fragments of steel while they were working on or near bridle roll No. 2 and steel was being run off the payoff reel. On the other hand, the company presented testimony that employees changing bridle roll No. 2 would be protected by floor plates and other barriers and hence would not be exposed to a hazard even if flying fragments of steel were produced. There was also conflicting evidence as to whether Sharon knew that the operation of the mill off the payoff reel could produce flying steel fragments. There was testimony that some employees had attempted to bring the problem to management's attention. However, all of Sharon's management personnel who had responsibility for the safety of the mill's operation testified that they were unaware of any incidents of flying steel and had never been informed by employees of any concern over flying steel. We need not resolve these conflicts, however, because we find that there was no hazard established on the day of the inspection, or within the preceding 6 months, and because we may not affirm a citation based upon the possibility of a future or prospective violation. To prove that an employer violated section 5(a)(1), the Secretary must first show that a condition or activity in the employer's workplace presents a hazard to employees. _Aluminum Co. of America_, 83 OSAHRC 24/E10, 11 BNA OSHC 1520, 1522-23, 1983-84 CCH OSHD ¶ 26,526, pp. 33,794-95 (No. 78-3157, 1983). He must then prove that the cited employer or the employer's industry recognizes the hazard. _Davey Tree Expert Co_., 84 OSAHRC 11/D11, 11 BNA OSHC 1898, 1984 CCH OSHD ¶ 26,852 (No. 77-2350, 1984). The Secretary must further prove that the hazard is likely to cause death or serious physical harm and that feasible means exist to eliminate or materially reduce the hazard. _Phillips Petroleum Co_., 84 OSAHRC 2/E7, 11 BNA OSHC 1776, 1779, 1983-84 CCH OSHD ¶ 26,783, p. 34,524 (No. 78-1816, 1984), _aff'd_, No. 84-1425 (10th Cir. Sept. 19, 1985). To establish the existence of a hazard in this case, the Secretary asserts that fragments of flying steel can be generated when Sharon's Number 28 Temper Mill is being fed from the payoff reel, and that these fragments endanger employees if they are performing maintenance on bridle roll No. 2 at the same time. The Secretary presented the testimony of several Sharon employees who said that they had, in the past, worked on bridle roll No. 2 while the mill was running off the payoff reel. The latest such incident occurred in December, 1979, eleven months before the citation was issued. Sharon cannot be charged with a violation of the Act based on these occurrences because they took place outside the six month statute of limitations period imposed by section 9(c) of the Act. 29 U.S.C. 658(c).[[2]] The only evidence tending to show that the allegedly hazardous activity occurred within six months of the citation's issuance pertains to the day of the OSHA inspection.[[3]] The Secretary does not argue that any prior instances form the basis of his allegations; indeed, at the hearing he specifically stated that the alleged violation occurred on the day of the inspection, Aug. 19, 1980. Accordingly, the events of that day are critical in determining whether there was a violation. On the morning of the inspection, steel was being fed into the mill off the vertihort, not the payoff reel. The bridle roll No. 2 was observed to be slightly misshapen. Mill superintendent Bible therefore decided to replace that bridle roll after the roll of sheet steel that was then on the vertihort had been completely processed. The last of the steel on the vertihort passed through the mill at 1:10 p.m.[[4]] At approximately noon, millwrights Griffin and Lizzie were assigned the task of changing bridle roll No. 2. According to Griffin, they gathered their tools and went to the area at about 12:30, when the mill was still running off the vertihort. Griffin, the only one of the two millwrights to testify, was uncertain whether the mill was in operation during the time they were replacing the bridle roll. Shortly after lunch, the inspection party, consisting of OSHA compliance officer Sutton and a number of Sharon representatives, arrived at the mill. Sutton testified that he observed the millwrights replacing the No. 2 bridle roll while steel was running off the payoff reel into the temper mill. However, Sharon's assistant superintendent, Schell, explained that they were attempting to run the mill while the inspection party was there, but were not able to do so due to an electrical malfunction. Schell testified that the mill was being "jogged" back and forth in an attempt to cure the electrical problem, but this proved unsuccessful and the mill was shut down entirely at 1:30 until after the bridle roll change was completed. Judge Taylor accepted Schell's version of what transpired during the inspection, _i.e_., that the mill was being jogged. Nevertheless, he found that on the way of the inspection, Sharon's employees were exposed to the hazard of flying steel during the replacement of the No. 2 roll. He concluded that the fact the mill was being jogged was sufficient to establish that steel was being fed into the mill off the payoff reel within the meaning of the citation. Moreover, the judge said that even if the steel was unlikely to break during the jogging procedure, Sharon's intent to operate the mill if the electrical problem had been corrected established that Sharon's employees were "within the zone of danger that exists when steel is being processed off the payoff reel under normal conditions." We believe the evidence is clear that no hazard existed on the day of the inspection. The preponderance of the evidence establishes that the mill was not operating during the inspection, but was only being jogged. [[5]] There is no evidence suggesting that a flying steel hazard exists when the mill is being jogged. When the mill is operated with steel being fed from the payoff reel, the steel normally moves through the mill at a speed of 1000 feet per minute. The record does not establish precisely how fast the steel moves when the mill is being jogged, but it does indicate that the speed is much lower than during normal operation. One of the employees who testified he was nearly struck by flying steel, Paul Dzaja, testified that the steel shattered when the broken end on the payoff reel hit an I-beam between the payoff reel and the bridle rolls. For the sheet steel to shatter in this manner, it must have been moving at a relatively high speed. Another of the employees who experienced an incident of flying steel, Robert Alter, testified that the mill was operating at high speed at the time.[[6]] It thus appears that flying steel fragments were generated only when the steel broke as it was moving through the mill at high speed. There is no evidence tending to show that the steel could shatter into fragments at slow speed when the mill is being jogged, and accordingly, the Secretary did not prove that a hazard existed on the day of the inspection. The judge essentially concluded that a violation occurred because Sharon intended to operate the mill during the bridle roll change if the electrical malfunction had been corrected.[[7]] The Secretary, reasoning similarly, argues that a violation should be found because Sharon's policy to replace bridle roll No. 2 with the mill operating made it reasonably predictable that employees would be exposed to the hazard alleged in the citation.[[8]] It is clear that both the judge and the Secretary are relying on the possibility of a prospective violation. The Act, however, does not permit citations founded on the possibility of future violations. Section 9(c) of the Act is unambiguous. A citation may be issued only within six months of the "occurrence" of a "violation." The mere existence of an unimplemented policy is not the "occurrence" of a "violation." In the absence of evidence of a violation within six months of the issuance of a citation, Sharon cannot be found in violation of the Act. We conclude that Sharon did not violate section 5(a)(1) of the Act. The judge's decision is reversed and the citation is vacated. FOR THE COMMISSION RAY H. DARLING, JR. EXECUTIVE SECRETARY DATED: November 19, 1985 BUCKLEY, Chairman, concurring: I concur with the conclusions of the lead opinion, and with the reasons stated therein. It is clear that, offered by the ALJ an opportunity to amend the complaint, the Secretary's solicitor declined and expressly stated that he intended to prove that the violation of the general duty clause (29 U.S.C. 654 (a)(1)) occurred on the date of the compliance officer's inspection, August 19, 1980. It is also clear that he failed to prove that violation for the reasons stated in the lead opinion. But even had the amendment to the complaint been made, I would find that the Secretary failed to carry his burden of establishing any violation of the general duty clause because he failed to establish the existence of a recognized hazard in the workplace at any time. In order to show that a hazard is recognized within the meaning of section 5(a)(1), the Secretary must prove that an allegedly violative condition or practice was known both to exist in the workplace and to be hazardous either by the cited employer or generally within the employer's industry. _National Realty & Construction Co. v. OSHRC,_ 489 F.2d 1257, 1265 n.32 (D.C. Cir. 1973). As the alleged hazard in this case results from practices associated with machinery that is unique to Sharon, the hazard could not have been known generally within the steel industry. Thus, the Secretary would have to show either that, at the time of the alleged violation, Sharon itself knew of the hazard, or that a reasonable person familiar with Sharon's operation would have known of the hazard. _See_ _Usery v. Marquette Cement Manufacturing Co_., 568 F.2d 902, 910 (2d Cir. 1977); _Litton Systems, Inc_., 81 OSAHRC 101/C12, 10 BNA OSHC 1179, 1182, 1982 CCH OSHD ¶ 25,817, p. 32,270 (No. 76-900, 1981); _cf_. _Ray Evers_ _Welding Co. v. OSHRC_, 625 F.2d 726, 731 (6th Cir. 1980) (29 C.F.R. § 1926.28(a)). The Secretary did not make such a showing. The No. 28 Temper Mill had been in operation since 1966 with no injuries from flying steel. Moreover, several Sharon supervisors had worked in the plant during most or all of the time the No. 28 Temper Mill had been operating and could reasonably believe they were thoroughly familiar with its operation and that the operation's safety was not open to serious dispute. Sharon could not have learned of any hazard from the experience of other companies in its industry since the arrangement of the machinery giving rise to the complaint was unique to Sharon's plant. Thus, the accumulated experience of Sharon and its industry in operating temper mills did not put Sharon on notice that it might be dangerous to replace bridle roll No. 2 with the mill in operation. Although two employees who testified they had experienced incidents of flying steel said that they brought the problem to the attention of their foremen, their testimony was contradicted by the two foremen. Sharon's superintendent, Charles Bible, as well as three supervisors, also testified categorically that they were unaware of any incidents of flying steel and had received no complaints or reports of any such incidents. One of these, the Corporate Safety Director, who was a member of, and regularly attended meetings of, the Management-Union Safety Committee, testified that in his three and one-half years no report had ever been made of a hazard of flying steel. The Secretary elicited testimony purporting to demonstrate the effort by employees to bring the problem to the company's attention through evidence of a grievance filed following an incident on December 12, 1979. According to the grievance, two employees assigned to change the bridle roll complained to their foreman that the job was "unsafe." The foreman insisted the job was not unsafe and told the employees they would be subject to discipline if they refused to do it. The employees then performed the task. Notably, the employees did not tell the foreman why they thought the job was unsafe, and the grievance papers did not mention any problem of flying steel. Indeed, the relief sought by the grievance was only that the foreman apologize for threatening the employees with discipline, not that Sharon change its policy of replacing the bridle roll while the mill was in operation. The grievance therefore gave Sharon no reason to believe that the employees were concerned with a hazard other than the obvious one of contacting the rotating roll of steel on the payoff reel, a hazard that Sharon believed had been eliminated by its policy of not working on bridle roll No. 1 with the mill running off the payoff reel. Sharon could certainly expect that employees concerned about a hazard associated with a bridle roll change would have been much more specific about the nature of the hazard. The grievance therefore did not put Sharon on notice that flying steel fragments could endanger employees working on bridle roll No. 2. In finding that Sharon recognized that a hazard of flying steel existed while employees were changing bridle rolls, Judge Taylor relied primarily on testimony of employee Rocky Vadala, a crane operator and Union Safety Officer. Vadala was first called to testify by the Secretary. His testimony was that he operated overhead cranes in all of the Sharon mills and had seen flying steel many times in the No. 28 Temper Mill. However, he was unable to state that he had seen flying steel when the steel was running off of the payoff reel or that millwrights were changing a bridle roll at a time that he observed flying steel. After the Respondent rested, he was recalled as a witness by the authorized employee representative to rebut Bible's testimony that lie was not aware of any flying steel hazard. On direct examination, Vadala did not say that he had told Bible about flying steel, but only that working on the bridle rolls with the mill running was "unsafe." After the completion of Vadala's direct testimony, Sharon's counsel pointed out that Vadala had not rebutted Bible's statement that he had never been told about flying steel. Following some colloquy, Respondents' attorney proceeded to cross-examine the witness. Vadala was at first evasive. Asked whether he told Bible about flying steel, he answered, "I wasn't asked to tell him that." On being pressed, he responded that he told Bible there was a "safety problem," and only after being pressed further did he state, "I explained to Mr. Bible...that there was flying steel...." When asked whether he told Bible about a specific incident of flying steel, his answer was that he could not remember the entire conversation. He later stated that he "might have told him about the incident of flying steel." I find Vadala's testimony on the whole to be self-contradictory and vague, and inadequate to establish that Respondent knew or should have known that a hazard of flying steel existed in the No. 28 Temper Mill. For the foregoing reason, I find that the Secretary failed to carry his burden of establishing that a recognized hazard existed in the workplace. I therefore concur for this additional reason in the vacation of the citation. ------------------------------------------------------------------------ FOOTNOTES: [[1]] The general duty clause is section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), which provides: "[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." [[2]] Section 9(c) of the Act provides: "No citation may be issued under this section after the expiration of six months following the occurrence of any violation." [[3]] The record indicates that the bridle rolls were changed a week before the inspection, but there is no evidence that the mill was operating off the payoff reel at the time. [[4]] The Secretary does not allege, nor does the record suggest, that there is any hazard to employees when steel is run off the vertihort. [[5]] Compliance officer Sutton was the only witness who testified that the mill was "operating" during the inspection. However, Sutton was not familiar with the mill's operation and could well have equated the movement of steel through the mill during the jogging procedure with the mill being "in operation." Moreover, Sutton testified that he was informed during the inspection that the mill was "not operating up to normal." [[6]] Alter testified that the steel was moving at 2000 feet per minute when the incident occurred. This cannot be entirely accurate, for the mill's maximum speed is 1500 feet per minute. It does suggest, however, that the mill was engaged in its normal high-speed operation. [[7]] It is not clear from the record that this was Sharon's intent. There is some testimony indicating that Sharon was not attempting to operate the mill during the inspection but was only trying to demonstrate the process to the compliance officer. Other testimony indicates that Sharon would have operated the mill if the electrical malfunction had been corrected. We need not resolve the point for the critical fact is that the mill did not operate. [[8]] The Secretary borrows, as did the judge, from Commission decisions employing a reasonable predictability approach to determining whether employees will be in a "zone of danger" created by a violative condition. _E.g_., _Gilles & Cotting, Inc_., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD ¶ 20,448 (No. 504, 1976). These decisions presuppose, however, that the violative condition already exists. _See_ _Clement Food Co_., 84 OSAHRC , 11 BNA OSHC 2120, 2123-24, 1984 CCH OSHD ¶ 26,972, p. 34,633 (No. 80-607, 1984). They do not provide a basis for concluding that a violative condition exists within the meaning of section 5(a)(1).