“SECRETARY OF LABOR,Complainant,v.BRATTON FURNITURE MANUFACTURINGCOMPANY,Respondent.OSHRC Docket No. 81-0799 S_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSIONA decision of Administrative Law Judge John S. Patton is before theCommission pursuant to section 12(j), 29 U.S.C.?661(i), of theOccupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”theAct\”). Judge Patton vacated item 6 of citation issued by the Secretaryof Labor (\”the Secretary\”) to Respondent, Bratton furnitureManufacturing Company (\”Bratton\”). Item 6 alleges a serious violationof the Act based on noncompliance with 29 C.F.R.?1910.213(r)(4) in theBratton failed to guard the point of operation of a woodworking machineidentified as a Porter No. 500 overhead router.[[1]] The judge vacatedthis item on the ground that \”the evidence reflects that a guard wouldnot be feasible.\” For the reason stated in this decision, we reversethe judge and affirm item 6 of the citation.In a case arising under section 5(a)(2) of the Act, the Secretary doesnot have the burden of proving the feasibility of a means of abatementunless the express language of the standard, e.g., 29 C.F.R.?1910.95(b)(1), the occupational noise standard, place that burden onhim; instead, the employer must prove an affirmative defense excusingits failure to comply with the cited standard, e.g., impossibility orthe greater hazard defense. Farmers Cooperative Grain & Supply Co., 82OSAHRC ___, 10 BNA OSHC 2086, 1982 CCH OSHD ?26,301 (No. 79-1177, 1982);Ed Cheff d\/b\/a Ed Cheff Logging, 81 OSAHRC 60\/A2, 9 BNA OSHC 1883, 1981CCH OSHD ?25,431 (No. 77-2778, 1981), appeal filed, No. 81-7493 (9thCir. July 27, 1981). Accordingly, the Commission has consistently held,with reference to 29 C.F.R. ?1910.212(a)(3)(ii), another general machineguarding standard similar to the standard cited in this case, that theSecretary does not have the burden of proving a feasible method ofguarding a machine’s point operation. [[2]] E.g. American Luggage WorksInc., 82 OSAHRC 30\/C7, 10 BNA OSHC 1678. 1982 CCH OSHD ?26,072 (No.77-893, 1982), appeal filed, No. 82-1572 (1st Cir. July 19, 1982). Toestablish an impossibility defense, an employer must prove either thatcompliance with the standard would preclude performance of the requiredwork or that compliance would be functionally impossible. The employermust also show that alternative means of protection were unavailable. American Luggage Works, Inc SUPRA; M.J. Lee Construction Co., 79 OSAHRC12\/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ?23,330 (No.15094, 1979). It isnot a defense under the Act that compliance with a standard would bemerely difficult, inconvenient or expensive. See, e.g., George C.Christopher & Son, Inc., 82 OSAHRC 9\/A2, 10 BNA OSHC 1436, 1982 CCH OSHD?25, 956 (No. 76-647, 1982); National Industrial Constructors, Inc., 81OSAHRC 94\/A2, 10 BNA OSHC 1081, 1981 CCH OSHD ?25,743 (No. 76-4507, 1982).On review in this case, the Secretary argues that Judge Patton erred tothe extent that he placed on the Secretary the burden of proving thefeasibility of guarding the router’s point of operation or,alternatively, erred to the extent that the he recognized an affirmativedefense of \”impracticality.\” Based on the precedent set forth above, weagree that the judge erred. [[3]]The issue in this case, properly formulated, is whether Brattonestablished an impossibility defense. We conclude that it did not. When viewed in a light most favorable to Bratton, its evidenceestablishes at most that a ring guard does not provide totally effectiveprotection and that a ring guard precludes the performance of some butnot all operations on the router. However, neither the fact that aguard is not totally effective nor the fact that a guard cannot be usedfor all operation provides a sufficient basis for sustaining animpossibility defense. See American Luggage Works, Inc., supra; A & SMillworks & Rentals, 77 OSAHRC 213\/A2, 6 BNA OSHC 1212, 1977-78 CCHOSHD ?22, 425 (No. 15052, 1977). As we states recently in FarmersCooperative Grain & Supply Co., supra, \”Even in full compliance with astandard cannot be achieved, an employer must nevertheless protect itsemployees to the extent possible against the hazards to which standardsare directed.\” 10 BNA OSHC AT 2089, 1982 CCH OSHD AT P.33,263.We reject Bratton’s impossibility defense for another reason as well. As indicated, in order to sustain an impossibility defense, the employermust show that alternative means of protection were unavailable. Here,however, the record establishes the contrary, i.e., that there was analternative means of protection that could have been but was not used. The compliance officer testified that a \”jig\” is a device used to holdthe material being operated on in a fixed position while keeping theoperator out of the zone of danger. He indicated that the jig is anacceptable alternative to a guard when use of the guard is not\”practical.\”[[4]] However, he also testified that, during the lastoperation of the machine prior to his inspection, the router was usedwithout either a guard or a jig. Thus, although there was analternative means of protecting the machine operator, that means was notused.We further conclude that the record sustains the violation alleged initem 6, including the allegation that the violation was \”serious\” asdefined at section 17(k) of the Act, 29 U.S.C. ?666(j). As stated, therouter was used while the ring guard was removed and no other from ofpoint-of-operation guarding was provided. The operator was therebyexposed to the hazard of possible severe lacerations or amputation of afinger if he contacted the small, high-speed, rotating blade at therouter’s point of operation. Bratton either knew or should have knownthat the router was operated without the guard and without using jig.Accordingly, because the evidence sustains the alleged violation andBratton failed to establish its impossibility defense, we reverse JudgePattom’s decision and order to the extent that it vacated item 6 ofcitation no. 1. The citation item is affirmed. The Secretary proposedthat a $60 penalty be assessed for this violation. Having consideredthe penalty assessment criteria set forth in section 17(j) of the Act,29 U.S.C. ? 661(i), with particular emphasis on appropriate. A penaltyof $60 is therefore assessed.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983 ————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. 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