SECRETARY OF LABOR, SECRETARY OF LABOR, Complainant, v. OSHRC Docket No. 87-1359 WALKER TOWING CORPORATION, PADUCAH RIVER SERVICE, Respondent. DECISION Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners. BY THE COMMISSION: This case, involving an alleged violation of a shipyard standard,^Footnote ^arose from a two-day inspection of Walker Towing Corporation’s boat and barge repair facility, known as Paducah River Service. The facility consists of five dry docks on the Ohio River at Paducah, Kentucky. Throughout the inspection, the compliance officer saw two barges that were “half-docked” in dry dock, with one end in dry dock and the other end afloat, and observed six employees walking on the narrow decks, which were just 3 feet wide. The decks lacked guardrails and the employees were exposed to 14-foot falls onto the dry docks, or onto certain raft-like working surfaces (called “floating flats”) in the water around the barges. The Occupational Safety and Health Administration (“OSHA”) issued a citation alleging a serious violation of section 1915.73(d). See note 1 supra. The citation specified that t~[e]mp1oyee5 were exposed to a fall . . . while walking the unguarded edges of both barges located on dry docks #3 and #4.” Walker Towing opposed the charge on the basis that it would have been more hazardous to use guardrails and that guardrails were infeasible. The administrative law judge agreed. For the following reasons, we reverse the judge’s decision and affirm the citation item. I Walker Towing’s Repair Operations in General At the hearing, Walker Towing attempted to show that guard-rails are infeasible and more hazardous for the company’s barge repair operations in general. The Secretary raised repeated objections to this broad defense, contending that the citation is narrow, concerning only the two barges on which the compliance officer saw the six employees exposed to fall hazards. Walker Towing did not dispute that these barges were undergoing substantial structural overhauls which kept them in dry dock for several weeks and that the six employees observed walking on them were repair crew employees assigned to perform the work. Moreover, as Walker Towing’s own evidence revealed, the company does not usually undertake such major operations. Major repair jobs or structural overhauls constitute only 2 to 4 percent of the company’s barge repair work. The cited barges and the work activity on them are therefore not typical of operations in general. Nevertheless, the judge overruled the Secretary’s objections and allowed the company to proceed with its general evidence, the main points of which we will briefly review. Walker Towing maintains that what it terms the “barge repair industry of the inland waterways” is primarily concerned with relatively minor repairs that take approximately a day. Normally, soon after a barge is dry-docked for repair, one employee mounts the deck, walks from hatchway to hatchway, and shines a flashlight down into the below-deck tanks (called “wing tanks”) to see if there is water, which is a sign of leakage. Footnote Barges are approximately 35 feet wide and 195 feet long. However, they have only three or four wing tanks per side, and therefore this inspection, proceeding down one side and back up the other (that is, making a complete circuit of the open-sided deck), takes approximately 5 to 15 minutes. Throughout the industry, the inspection is conducted in this manner, on decks without guardrails. Competition is keen among inland barge repairers, and Walker Towing’s apprehension is that OSHA might single out this company to begin installing guard-rails completely around the deck of each barge, to protect the single employee who conducts this type of inspection. Walker Towing alleges that requiring it to install guardrails on every barge would put it at a considerable competitive disadvantage, because the cost to its ordinary customers would double. Walker Towing estimates that the time in dry dock would double and that every customer’s bill would rise $2,000 or more. Walker Towing also speculates that customers might demand that such guardrails be removed, because they could obstruct the progress of personnel going from barge to barge during navigation for normal commercial operations. To remove welded-on guardrails, Walker Towing would either knock them off with chipping hammers or burn them off with cutting torches. Both installation and removal would pose increased risks of falls, as two employees would need to drag the welding tools and cables along the decks and carry wire rope and angle irons. The employees would also repeatedly crouch at the deck edge while their vision was blocked by welding hoods. However, as the company’s evidence indicates, the employee activity on the two cited barges is not typical of the company’s or the industry’s normal operations. The cited barges represent an unusual case of repair crew exposure during major work involving weeks in dry dock. Normal activity, involving preliminary inspections and quick repairs, was not cited. Therefore, we conclude that the language of the citation and the Secretary’s objections to the company’s evidence relating to typical work operations limit our examination of the record to the evidence pertaining to the repair operations undertaken on the two cited barges. Footnote Walker Towing would have us enlarge this case. However, the Commission ordinarily does not render a decision on uncited matters, unless the Secretary has consented to a trial of them. Cf.Pennsylvania Power & Light Co. v. OSHRC, 737 F.2d 350, 357 n.8 (3d Cir. 1984) (prohibiting evidence to show a standard “unworkable and hazardous under circumstances not present in this case”). The Secretary did not consent to enlarge this case. In implicit recognition of this, Walker Towing contends that the Commission should take the extraordinary step of rendering a declaratory ruling on the company’s evidence of infeasibility for the company’s operations in general. The company asserts that the Secretary has “acknowledged Walker’s right to declaratory guidance.” We note, however, that the Secretary’s argument in her review brief indicates that she is not receptive to this approach: “Whatever respondent’s entitlement to some type of declaratory judgment regarding other work situations may be, it was not entitled to defend this citation based on inapplicable hypotheticals.” Moreover, the Commission has not generally granted declaratory relief. See Granite City Terminals Corp., 12 BNA OSHC 1741, 1748, 1986-87 CCH OSHD ¶ 27,547, p.35,777 (No. 83-882-S, 1986) (rejection of declaratory relief regarding the cited condition’s abatement because the citation was being vacated for failure to prove a violation). Nor would it be prudent to afford declaratory relief where one party has not agreed to a presentation of the underlying evidence. We therefore decline to do so in this case. Although our examination of Walker Towing’s evidence leaves us without doubt that the company’s concerns about its normal circumstances are genuine, we must leave for another day the resolution of those issues. II The Secretary’s Case We turn now to the issue of whether the Secretary established a violation on the two cited barges. To establish a violation of a standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies, (2) its terms were not met, (3) employees had access to the violative condition, and (4) the employer knew or could have known of it with the exercise of reasonable diligence. See, e.g., Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp. 31,899- 31,900 (No. 78-6247, 1981). In this case, there is no question of the cited standard’s applicability to the company’s two barges, nor of noncompliance with its terms. The Secretary has established both of these elements of the alleged violation. We also find access to have been established, by the compliance officer’s unrefuted testimony and his photographs showing that employees were walking within 3 feet of unguarded deck edges. Footnote It is well settled that brief exposures involved in passing or standing near an open edge constitute access. E.g., Brock v. L.R. Wilson & Sons, 773 F.2d 1377, 1386 (D.C. Cir. 1985); Frank Swidzinski Co., 9 BNA OSHC 1230, 1232, 1981 CCH OSHD ¶ 25,129, p. 31,032 (No. 76-4627, 1981); see also, Morgan & Culpepper, Inc. v. OSHRC, 676 F.2d 1065, 1069 (5th Cir. 1982) (short duration of exposure is no defense); Cf. North Berry Concrete Corp., 13 BNA OSHC 2055, 2055—56, 1989 CCH OSHD ¶ 28,444, p. 37,643 (No. 86—163, 1989) (“work” includes going to and from work stations; employees in transit require protection). The proof of knowledge in this case is less straightforward, but essentially undisputed. The compliance officer’s unchallenged testimony and his photographs show that the employees were in plain view throughout the two-day inspection. Testimony by Walker Towing’s managers firmly identifies the employees as repair crew members either engaged in overhauling the barges or going to their work areas. Although the company’s managers maintained that simple repair work would not ordinarily bring employees onto the decks after the initial inspection, they conceded that the employees observed by the compliance officer were not using the decks simply to get from one work area to another. That type of use would have contravened company rules and practices. Footnote We therefore find that the company could have known that its employees were being exposed to the unguarded deck edges. Cf. North Berry Concrete Corp., 13 BNA OSHC at 2057, 1989 CCH OSHD at p. 37,644 (No. 86—163, 1989) (violative conditions had existed for a week and were in plain view of a foreman who passed them daily); Lauhoff Grain Co., 13 BNA OSHC 1084, 1087-88, 1986-87 CCH OSHD ¶ 27,814, p. 36,397 (No. 81-984, 1987) (supervisory personnel had been aware of the nature of the work and the worksite conditions for a long time); Ted Wilkerson, Inc., 9 BNA OSHC 2012, 2016, 1981 CCH OSHD ¶ 25,551, p. 31,856 (No. 13390, 1981) (a leadman “would have been in a position to observe” the employee in the hazardous situation); Minnotte Contracting & Erection Corp., 6 BNA OSHC 1369, 1371 & 1372, 1978 CCH OSHD ¶ 22,551, pp. 27,214 & 27,215 (No. 15919, 1978) (employees working without tied—off safety belts were in plain view and within sight of a foreman). III Walker Towing’s Affirmative Defense of Infeasibility Having determined that the Secretary made a prima facie case of violation, we turn to whether Walker Towing established any affirmative defense. The company raised two defenses: infeasibility, which we will now address, and greater hazard, which we will address in a separate section of this decision. An employer may avoid liability for noncompliance by showing that compliance would have been infeasible under the circumstances.Cleveland Electric Illuminating Co., 13 BNA OSHC 2209, 2213, 1989 CCH OSHD ¶ 28,494, p. 37,761 (No. 84-593, 1989); Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1955-56, 1986-87 CCH OSHD ¶ 27,650, pp. 36,023-36,024 (No. 79-2553, 1986), rev’d on other grounds, 843 F.2d 1135 (8th Cir. 1988). Additionally, the standard cited in this case, see note 1 supra, has an infeasibility provision of its own. Under the terms of the standard, guardrails may be omitted where “the nature of the work in progress or the physical conditions prohibit the use or installation of such guardrails.” Compare Cleveland Electric, 13 BNA OSHC at 2213, 1989 CCH OSHD at p. 37,761 (referring to the traditional greater hazards defense and noting in addition that the standard which had been cited contained its own greater hazard provision). In this case, there is scant evidence pertaining to the infeasibility of using guardrails for employee protection on the two cited barges, as Walker Towing did not concentrate on problems related specifically to these two barges. Moreover, as we will describe at greater length below, the Secretary established that the repair crew employees were working in a particular area on one of the two barges and proposed that, at the least, guardrails could have been used in a limited way for the protection of these employees. Walker Towing did not establish any real problem with this limited use of guardrails. This is significant because, even when an employer cannot fully comply with the literal terms of a standard, it must nevertheless comply to the extent that compliance is feasible. E.g. Bratton Furniture Manufacturing Co., 11 BNA OSHC 1433, 1434, 1983-84 CCH OSHD ¶ 26,538, p. 33,858 (No. 8l—799—S, 1983). If limited guardrails were feasible, Walker Towing should have erected them, to minimize the exposure of the employees. Also, since the company’s witnesses maintained that the repair crew employees did not need to travel over the decks for any work-related reason, the company apparently had the option of precluding general access by appropriate physical means, and eliminating unnecessary exposure by enforcing work rules. E.g. Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003, 1975—76 CCH OSHD ¶ 20,448, pp. 24,424—24,425 (No. 504, 1976) (an employer has a duty to comply wherever there is any reasonable predictability of work or work-related activities). With these principles in mind, we examine the evidence concerning the repair crew’s work activities and consider whether the limited use of guardrails would have protected the employees during these activities. On the deck of one barge, the compliance officer saw and photographed some equipment, which included a fan for ventilating the wing tanks. Footnote Walker Towing’s dry dock supervisor, who testified about the equipment, could not tell if the fan was being used. He posited, however, that the equipment belonged to repair crew employees who were at work in a nearby wing tank and were storing their equipment on the deck. This storage area was located on one end of one barge. Around the corner (that is, on one side of the barge), were two ladders. One ladder provided a way down from the deck into the barge’s empty cargo reservoir (called a “hopper”). The other ladder, which was located approximately 10 feet farther along the deck, provided a way to board the barge from the dry dock. To board the barge and go into the hopper, employees not only climbed up one ladder and down the other, but also traversed part of the unguarded deck, the distance between the ladders. In addition, the employees apparently went approximately 10 feet farther, around the corner to the end of the barge, where the equipment was stored. Although these work activities involved only a small portion of the unguarded deck of the long barge, there were no barricades blocking access to the remainder of the deck. On many barges, including the two involved in this case, there is a wall (called the “combing”), at approximately waist height, along the inner edge of the deck; the combing encloses the hopper and separates it from the deck. To prevent falls from the unguarded outer edge of the deck at the end and corner where the employees’ work activities were taking place, as well as to preclude travel onto any other part of the deck, OSHA’s district supervisor for Norfolk, Virginia, Footnote proposed erecting a short stretch of angle iron and wire rope guardrails that would extend out from the combing at the outer limits of the work area and surround that work area. That is, the guardrails would include the two ladders and the storage area, but would prevent further access down the deck in both directions. This scheme would require about 50 feet of angle iron stanchions at approximately 8—foot intervals. The district supervisor for Norfolk, Virginia, also described another, more generally applicable scheme, which he indicated would require approximately 10 feet of stanchions. They would be used to section off a small, rectanglar segment of the deck and barricade access to the remainder of it. The sectioned-off rectangle would become a landing for the ladders. Specifically, there would be guardrails from the combing across the 3-foot width of the deck and at the deck edge, leaving a ladderway opening. In that opening Walker Towing would place its ladder coming up from the dry dock, and directly opposite would be the ladder going down into the hopper. The two ladders would be back-to-back, not 10 feet apart. They and the guardrails leading across the deck’s width would channel employees directly from the dry dock to the hopper. The employees would no longer be able to travel down the deck since these guardrails would be barricading access to it. Walker Towing’s manager estimated that four stanchions, which this scheme would require (approximately 10 feet of guardrails, in two sections), would cost approximately $200 to erect. We do not know how $200 compares to the bills for the work done on these barges, but Walker Towing did present evidence of bills for other barges dry-docked more than two days. The work that was done on a barge that was repaired from December 1 to December 23, 1987, and dry-docked for 1,014 manhours was billed at $33,016.00. Another bill for $15,700.50 arose when a barge was repaired and dry-docked for 487 manhours from December 4 to December 11, 1987. The record reveals that the two barges in this case were dry-docked for several weeks, and that Walker Towing installed approximately 30,000 pounds of steel during the repair work on one of the cited barges. From this evidence, we infer that the bills for that repair work on the cited barges would have been substantial, well within the range of the amounts of the other bills described in the record. Walker Towing’s manager opined that $200 for limited guardrails would be an “insignificant” cost, as he usually charged that amount merely to put a barge into dry dock. Most of the cost of installing the limited guardrails would be for labor. Each installation (or removal) of a stanchion would take less than one hour for two employees. Footnote The company’s manager called the suggestion that limited guardrails be installed “fine and reasonable.” The company also failed to demonstrate any technological problems with the use of limited guardrails. There is no evidence that their use would have precluded or significantly impeded any work. In particular, we conclude on this record that the repair crew employees had no apparent need to use the decks to go from one work area to another. For example, testimony indicates that one employee was required to make a special inspection on one of the barges. However, as Walker Towing states in its brief, special inspections usually concern a particular problem in one of the wing tanks and, to reach one of them, employees are required to use a ladder to climb onto the barge deck and then descend through the hatchway into the wing tank. By advocating ladders for special access to particular areas, Walker Towing effectively concedes that limited guardrails to prevent access to most of the deck area would not have precluded necessary work, such as special inspections. Walker Towing also failed to establish that the tasks involved in welding the stanchions to the deck would have presented physical or technological problems. In fact, the company made a counterproposal to install welded—on, reusable guardrail segments. Although welding and removing stanchions might damage “elaborate paint jobs” and “exotic coatings,” Walker Towing’s manager testified that there were no such coatings on the cited barges. There was some testimony that excessive cutting into a barge deck might eventually weaken it, and cause the barge to collapse into a “V”- shape and sink. However, the record before us does not indicate that the process of cutting off guardrails would significantly contribute to such a problem. The repair work that Walker Towing performs normally involves extensive welding work, including cutting holes in barge decks. Accordingly, the compliance officer and the OSHA district supervisor were both understandably skeptical that cutting off a few welded stanchions could do any real and irreparable damage. Moreover, Walker Towing no longer presses the claim, even as to barges in general, and it no longer claims that cutting off the welded stanchions would leave a residue creating a tripping hazard. Walker Towing’s principal concern is costs. We find, however, that Walker Towing has not shown economic infeasibility, either under the cited standard’s own infeasibility provision, which refers to conditions that “prohibit” abatement, or under Commission and relevant court precedent on infeasibility. The court precedent that is most directly relevant is from the United States Court of Appeals for the Sixth Circuit, which includes Kentucky. In Quality Stamping Products v. OSHRC, 709 F.2d 1093, 1099 (6th Cir. 1983), the Sixth Circuit held that infeasibility includes costs, but it put on the employer the burden of showing that the required abatement would not be “economically practicable” because it would be “prohibitively expensive.” Footnote The leading case establishing Commission precedent is Dun-Par Engineered Form, 12 BNA OSHC at 1955, 1986-87 CCH OSHD at pp. 36,023, in which the Commission decided that an employer’s burden is to show that compliance would offend “considerations of reasonableness or common sense, or . . . a strong sense of the practical.” This was followed by Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1966, 1986-87 CCH OSHD ¶ 27,651, p. 36,033-2 (No. 82-928, 1986), in which the Commission rejected an infeasibility defense because, among other things, the employer had failed to show “that the costs were unreasonable in light of the protection afforded” and “what effect, if any, these added costs would have on the contract or business as a whole.” Here, we conclude that the cost of limited guardrails would be “insignificant,” because it would fall within the usual range of charges to barge customers requiring major repairs. IV Walker Towing’s Affirmative Defense of Greater Hazard We turn now to Walker Towing’s affirmative defense of greater hazard. An employer’s burden of proof under case law defining this defense is well—established: There is a three—fold burden on an employer who seeks to assert the greater hazard defense. The employer must demonstrate (1) that the hazards of compliance are greater than the hazards of noncompliance, (2) that alternative means of protecting employees are unavailable, and (3) that a variance is unavailable or inappropriate. Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1116 (7th Cir. 1982); see also Cleveland Electric, 13 BNA OSHC at 2213, 1989 CCH OSHD at p. 37,761, citing Lauhoff Grain Co., 13 BNA OSHC at 1088, 1986—87 CCH OSHD at pp. 36,397-98. Footnote A threshold problem with Walker Towing’s greater hazard defense is that Walker Towing has not sought a variance and has not explained its failure to seek one. Compare H.S. Holtze Construction Co. v. Marshall, 627 F.2d 149, 152 n.2 (8th Cir. 1980) (where “the variance requirement was not entrenched at the time of petitioner’s hearing”). As the Secretary notes in her brief, Walker Towing has “adduced no evidence whatsoever as to why a variance application would have been inappropriate.” The company merely argues that, in general, its workplace has been safer than it would have been if the company had attempted to comply. The company claims that, during its normal operations, to have installed and removed guardrails would have required considerably more work and therefore more employee exposure, along unprotected deck edges, than the exposure that would have been eliminated by the guardrails. As we have fully explained in Part I of this decision, however, we are not concerned in this case with the exposure of employees during typical, short—term repair operations. Walker Towing’s greater hazard defense is therefore largely irrelevant to the issues in this case, except to the extent that it implies a similar concern regarding the installation and removal of limited guardrails. Should an employer who “correctly believes that his working conditions are safer than those prescribed in the standards” be excused from compliance despite “bypassing the variance procedures and taking his chances that he will not be cited or that he will prevail” when his case is heard? The court that was confronted with this argument replied: The flaw . . . is that some employers will believe incorrectly that their working conditions are safer than those prescribed in the standards. By removing this incentive to seek variances, the Commission would be allowing an employer to take chances not only with his money, but with the lives and limbs of his employees. This we cannot do. General Electric Co. v. Secretary, 576 F.2d 558, 561 (3d Cir. 1978). This reply was quoted in Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d at 1116, andDole v. Williams Enterprises, Inc., 876 F.2d 186, 190 n.7 (D.C. Cir. 1989). Accordingly, on this basis alone, Walker Towing’s defense could be rejected. As the court stated in Williams, “these elements” -- including the variance element --”are more than mere legal technicalities.” 876 F.2d at 190 n.7. Rejection of the affirmative defense of greater hazard because of failure to seek a variance would seem to be a particularly appropriate response to a company that, instead of focusing on the atypical operations that the Secretary cited, has tried to make a case for its industry’s need for general relief. Footnote Also, on this record it appears that an alternative method of protection was available. Walker Towing’s witnesses described a regular practice of using scaffolds as needed at barge edges, and photographs show scaffolds resting on floating flats, which are large in size and fairly substantial. We therefore conclude that scaffolding could have been used at barge edges, as well as on the dry dock, to protect employees either while installing limited guardrails or while working along the end and side of the one barge. For the reasons stated above, we reject Walker Towing’s greater hazard defense. V Seriousness and Penalty The Secretary classified the violation as serious and proposed a penalty of $480. There can be no real question of the violation’s seriousness. Although the company’s superintendent once saw an employee fall 14 feet without injury (“got up and walked back to work”), the compliance officer testified from his experience that an employee could suffer “broken bones or a minor concussion at the best” and, at “worst, an employee would . . . hit his head on a protruding object . . . [and) be killed.” Compare Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 2157, 1989 CCH OSHD ¶ 28,501, p. 37,772 (No. 87—1238, 1989) (“A fall from even that modest height [of 12 feet] could result in serious injury, especially a fall onto the sort of debris typically found around a construction site”). As to the penalty, Walker Towing employs approximately 110 employees at the Paducah River Service facility, and approximately 150 employees company—wide. The company has no prior history of violations, and the compliance officer credited Walker Towing with good faith. However, six employees were exposed to a serious fall hazard on the two cited barges. We therefore assess the penalty of $480 as proposed. Accordingly, we reverse the judge’s decision and affirm the citation alleging a serious violation of 29 C.F.R. § 1915.73(d). We assess a penalty of $480. /s/ Edwin G. Foulke, Jr. Chairman /s/ Velma Montoya Commissioner /s/ Donald G. Wiseman Commissioner Dated:February 15, 1991 ------------------------------------------------------------------------ SECRETARY OF LABOR, Complainant, v. OSHRC Docket No. 87-1359 WALKER TOWING CORPORATION, PADUCAH RIVER SERVICE, Respondent. APPEARANCES: John P. Garner, Esquire, Office of the Solicitor, U. S. Department of Labor, Nashville, Tennessee, on behalf of complainant Mark C. Whitlow, Esquire, Paducah, Kentucky, on behalf respondent DECISION AND ORDER SALVERS, Judge: Respondent, Walker Towing Corporation (“Walker”), contests a citation charging a serious violation of 29 C.F.R. § 1915.73(d)(1) for failure to erect guardrails around the edges of barge decks that were more than five feet above a solid surface. Footnote Walker (also referred to at the hearing as Paducah River Services) operates a barge repair facility located on the Ohio River at Clark River Road in Paducah, Kentucky (Tr. 12, 58). The facility consists of five dry docks and attendant buildings and structures (Ex. C-1; Tr. 16). On July 20 and 21, 1987, Occupational Safety and Health Administration (“OSHA”) Compliance Officer Rob Medlock conducted an inspection of the facility pursuant to Walker’s report of an employee fatality. Footnote At the time of Medlock’s inspection, two barges were docked at dry docks number 3 and number 4 (Tr. 17). The barges were half—docked or “cameled,” with the lower ends of the barges in the water slightly below the surface level. The upper end of the barge rested on the dry dock out of the water, slightly raised so that work could be performed on the underside (Tr. 15). The barges measured approximately 195 feet long and 35 feet wide and were 12 feet from the deck to the keel (Tr. 26, 29). “Combing” or metal walls rose five feet above the deck surfaces, enclosing the hoppers (Tr. 31). The three-foot width between the combing and the outer edges of the barges was where the employees walked when on top of the barge decks, and these decks were elevated 14 feet above the metal surface of the dry docks. The edges of the barge decks were unguarded (Tr. 30—31). The barges had been in dry dock for one and a half weeks prior to Medlock’s inspection and remained there at least 15 days after he completed his inspection (Tr. 47). Medlock observed six employees on the barge decks over the two days he conducted his inspection (Tr. 46). Medlock has been an OSHA compliance officer for ten years but has little experience relating to the inspection of dry dock facilities (Tr. 8, 58) and does not have more than a passing familiarity with regular practices in the maritime industry (Tr. 496). Following his inspection, he issued a citation for a violation of 29 C.F.R. § 1915.73(d)(1), which provides: (1) When employees are exposed to unguarded edges of decks, platforms, flats, and similar flat surfaces, more than 5 feet above a solid surface, the edges shall be guarded by adequate guardrails meeting the requirements of § i925.71(j)(1) and (2), unless the nature of the work in progress or the physical conditions prohibit the use of installation of such guardrails. Medlock proposed that guardrails could be erected by welding stanchions onto the barges’ edges. It was his further opinion that the stanchions could be welded about eight feet apart and that a wire rope could be strung through them to afford fall protection to employees (Ir. 50-51). The stanchions could be removed after the repair work was completed by usinci a chipping hammer and grinding down the residue (Tr.54). Thomas Pope has been the OSHA district supervisor for the Norfolk, Virginia, office for three years. He has been with OSHA for 13 years (Tr. 91). Before working with OSHA, Pope served a four-year apprenticeship at Shipbuilding and Dry Dock Company in Newport News, Virginia (Tr. 92). The Norfolk office has jurisdiction over maritime operations in Virginia, including 38 marine repair facilities (Tr. 93). Pope stated that the installation of guardrails on the barge decks was a feasible safety precaution in the present case (Tr. 96). Pope estimated that a barge the size of the ones in question would require 60 stanchions, which two employees could install in 12 to 16 hours (Tr.111). Pope testified that when vessels are brought into dry dock in the Norfolk area for a “haircut and shave” (removal of growth on the sides of the vessel and application of a protective coating), the vessels are generally dry docked for three or four days. Almost all of the vessels Pope had seen docked for a “haircut and shave” had guardrails erected on them (Tr. 108-109). It was Pope’s opinion that where employees required only limited access to the deck, only that portion used by the employees needed to be guarded (Tr. 111-115). Pope also suggested using 14-foot tall sawhorses as scaffolding. Planks could be laid across the sawhorses and guardrails could be erected on the plank edges. Pope stated that giant sawhorses were used “all the time” in the Norfolk area to protect against fall hazards (Tr. 117). On cross-examination, Pope admitted that he had no experience in inspecting inland dry docks; his experience was limited to coastal waterways (Tr. 121—122). Pope did not acknowledge a difference between ocean-going vessels and inland barges (Tr. 119). George Bundren is the general superintendent for Walker. He has 25 years’ experience in the barge repair industry (Tr. 164-165). Bundren testified that he had never erected guardrails on barge decks while the barges were in dry dock (Tr. 166). He stated that when a barge was brought in, two employees are sent up on the deck with flashlights to check the hatches, a procedure which takes about five minutes (Tr. 170-171). If the barge requires a simple patch job, work can be completed on the barge in about three hours. A major repair could take four to five and a half weeks (Tr. 179). Bundren estimated that only two or three percent of the repair work done at Walker would require several days’ work (Tr. 181). Bundren rejected the notion of installing guardrails on the barge decks as infeasible and dangerous (Tr. 185). Employees installing the guardrails would be required to drag welding leads made of heavy copper wire encased in rubber while they moved from stanchion to stanchion along the edge of the barge, creating a balance problem and a tripping hazard (Tr. 185, 196). In essence, it was his opinion that the installation of guardrails would expose employees to a fall hazard during the installation process which would far exceed the exposure of employees using the unguarded decks for brief and sporadic periods while the barge was in dry dock. Phillip Crabtree is the general manager at Walker. He has been in the barge repair industry for 22 years (Tr. 262-264). Crabtree has visited other dry dock facilities in New Orleans, St. Louis and Paducah. In his 22 years at Walker and in his visits to other dry docks, he had never seen guardrails erected on barge decks while in dry dock (Tr. 292-293). Crabtree estimated that 96 percent of the business Walker handled was minor patch work that required the barges to be docked for 4 to 12 hours (Tr. 267). He also estimated it would require about 50 manhours and cost approximately $2,000 to erect guardrails on one barge (Tr. 283). He asserted that a requirement to erect guardrails on each barge docked at his facility would cause him to close down his business in less than three months. The dry dock business is very competitive, and other dry dock facilities do not erect guardrails (Tr. 286). When questioned about the employees that Medlock had observed on the barge decks during his inspection, Crabtree stated that the barge owners had requested an inspection for additional damage to the vessels (Tr. 321) and that these employees were on the barge decks only briefly. William Alexander is the engineering manager for Ingram Barge Company. He is responsible for the repair of 1,050 barges, and he regularly uses Walker’s facility for repairs (Tr. 331). Alexander has visited 30 dry docks between Pittsburgh, Houston and St. Louis and has never seen guardrails installed on a barge (Tr. 340-341). Alexander stated that the average time an Ingram barge spends dry docked at Walker is four hours (Tr. 348). Alexander testified that he would be “violently against” the welding of stanchions onto Ingram’s barges. He stated that the welding and subsequent chipping and grinding would weaken the structure of the barge by creating a stress concentration (Tr. 337). Kenneth Hoffmeister is the general manager of Missouri Dry Dock and Repair located in Cape Gerardeau, Missouri. He has been in the barge repair industry for almost 30 years. Hoffmeister has never known any inland dry dock to install guardrails on dry docked barges (Tr. 366). Teddy Fondow is an oiler and fitter who works for Walker. It is his job to make the initial check on the barges placed in his dry dock. The check, which requires him to walk on the barge deck with a flashlight, generally takes him 10 to 15 minutes to complete (Tr. 394). Fondow testified that after the initial 15-minute inspection, employees rarely need to go up on the deck again: “When a barge is on dock, it’s very seldom a man is up on top of it. As far as just doing any actual work--after you get your first check made, there is nothing to do up there” (Tr. 410). Fondow also stated that installing guardrails would only increase the amount of time that employees would spend on top of the deck, exposing them to a fall (Tr. 412). Taken as a whole, the testimony establishes that it is not customary in the barge repair industry to install guardrails on barges dry docked for repairs at inland facilities. The testimony also establishes that approximately 96 percent of the barges brought to Walker for repair are docked there for less than one day. After the barge is docked, an inspection of the hatches is made, requiring one or two employees to walk around the deck for 5 to 15 minutes. After that initial inspection, it is rare for an employee to go on the deck again. It is also apparent that the installation of guardrails, as proposed by the Secretary, would require excessive exposure of employees to fall hazards during the installation process and would subject Walker to inordinate costs (See Ex. R—11) to its competitive disadvantage. Based on these facts, it would be unreasonable to require Walker to install guardrails on every barge that docked at its facilities. In most cases, the barge would be repaired and out of the dock before the guardrail installation could be completed. It is clear, however, that the circumstances revealed by Medlock’s inspection were not the typical, short-term repair job. The barges in question were docked for substantial periods as opposed to the usual four hours. The barges had been docked a week and a half prior to Medlock’s inspection, and presumably the initial 15-minute check had been made. Yet, Medlock observed six employees over a two-day period atop the barge decks. Respondent’s general superintendent (Bundren) acknowledged that major repairs could require from four to five and a half weeks and that such jobs were performed even though they constituted a small percentage of respondent’s total workload. The crucial question to be resolved in this case is whether the Secretary has shown by a preponderance of the evidence that Walker’s employees working on barges in dry docks numbers 3 and 4 at the time of Medlock’s inspection were exposed to the cited hazard with a frequency and duration sufficient to justify the extraordinary expenditure of time and money required to erect guardrails as urged by the Secretary. Compliance Officer Medlock did not elaborate concerning the circumstances surrounding his observation of the six employees atop the barge decks. No witnesses were produced who could give detailed testimony concerning the nature and extent of the duties performed by these employees. The record does not disclose whether these employees were performing work at this location over a period of time or were merely using the decks for momentary transit between work stations. In contrast to Medlock’s testimony, Walker’s witnesses who are familiar with these operations gave convincing testimony that employee exposure to the unguarded decks would be minimal and after the initial check of the hatches, there would be no reason for employees to spend any significant amount of time atop the barge decks. The Secretary did not successfully counter this testimony. The evidence supports a conclusion that employee exposure observed by Medlock did not reach a level of significance which would justify the implementation of guardrails as proposed by the Secretary. While it is concluded that the Secretary failed to establish sufficient exposure of employees to require the installation of guardrails under the facts presented in this case, respondent should not assume it has no obligation to provide appropriate fall protection for employees under any circumstances. Each situation must be assessed as it arises, and the Act imposes an obligation on employers to take reasonable steps to assure the safety of employees in the workplace. Under circumstances where employees are regularly and frequently expected to use the barge decks as a walkway during the course of major repairs extending over a period of weeks, or where they must spend substantial periods performing work on or around these decks, Walker must consider whether guardrails or some other form of fall protection (i.e., safety belts and lifelines, scaffolding) should be utilized to fulfill its obligations imposed by the Act. The foregoing constitute my findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. ORDER It is hereby ORDERED: Serious Citation No. 1, item 3, is vacated. /s/ EDWIN G. SALYERS Judge Date: July 12, 1988