“Docket No. 81-0799 SECRETARY OF LABOR, Complainant,v.BRATTON FURNITURE MANUFACTURING COMPANY,Respondent.OSHRC Docket No. 81-0799 SDECISIONBefore: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSIONA decision of Administrative Law Judge John S. Patton is before the Commission pursuantto section 12(j), 29 U.S.C.?661(i), of the Occupational Safety and Health Act of 1970, 29U.S.C. ??651-678 (\”the Act\”). Judge Patton vacated item 6 of citation issuedby the Secretary of Labor (\”the Secretary\”) to Respondent, Bratton furnitureManufacturing Company (\”Bratton\”).\u00a0 Item 6 alleges a serious violation ofthe Act based on noncompliance with 29 C.F.R.?1910.213(r)(4) in the Bratton failed toguard the point of operation of a woodworking machine identified as a Porter No. 500overhead router.[[1]]\u00a0 The judge vacated this item on the ground that \”theevidence reflects that a guard would not be feasible.\”\u00a0 For the reason stated inthis decision, we reverse the judge and affirm item 6 of the citation.In a case arising under section 5(a)(2) of the Act, the Secretary does not have theburden of proving the feasibility of a means of abatement unless the express language ofthe standard, e.g., 29 C.F.R. ?1910.95(b)(1), the occupational noise standard, place thatburden on him; instead, the employer must prove an affirmative defense excusing itsfailure to comply with the cited standard, e.g., impossibility or the greater hazarddefense.\u00a0 Farmers Cooperative Grain & Supply Co., 82 OSAHRC ___, 10 BNA OSHC2086, 1982 CCH OSHD ?26,301 (No. 79-1177, 1982); Ed Cheff d\/b\/a Ed Cheff Logging, 81OSAHRC 60\/A2, 9 BNA OSHC 1883, 1981 CCH OSHD ?25,431 (No. 77-2778, 1981), appeal filed,No. 81-7493 (9th Cir. July 27, 1981).\u00a0 Accordingly, the Commission has consistentlyheld, with reference to 29 C.F.R. ?1910.212(a)(3)(ii), another general machine guardingstandard similar to the standard cited in this case, that the Secretary does not have theburden of proving a feasible method of guarding a machine’s point operation. [[2]] E.g.American Luggage Works Inc., 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).\u00a0 To establishan impossibility defense, an employer must prove either that compliance with the standardwould preclude performance of the required work or that compliance would be functionallyimpossible.\u00a0 The employer must also show that alternative means of protection wereunavailable.\u00a0 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).\u00a0 It is not a defenseunder the Act that compliance with a standard would be merely difficult, inconvenient orexpensive.\u00a0 See, e.g., George C. Christopher & Son, Inc., 82 OSAHRC 9\/A2, 10 BNAOSHC 1436, 1982 CCH OSHD ?25, 956 (No. 76-647, 1982); National Industrial Constructors,Inc., 81 OSAHRC 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 to the extent thathe placed on the Secretary the burden of proving the feasibility of guarding the router’spoint of operation or, alternatively, erred to the extent that the he recognized anaffirmative defense of \”impracticality.\”\u00a0 Based on the precedent set forthabove, we agree that the judge erred. [[3]]The issue in this case, properly formulated, is whether Bratton established animpossibility defense.\u00a0 We conclude that it did not.\u00a0 When viewed in a lightmost favorable to Bratton, its evidence establishes at most that a ring guard does notprovide totally effective protection and that a ring guard precludes the performance ofsome but not all operations on the router.\u00a0 However, neither the fact that a guard isnot totally effective nor the fact that a guard cannot be used for all operation providesa sufficient basis for sustaining an impossibility defense.\u00a0 See American LuggageWorks, Inc., supra; A & S Millworks & Rentals, 77 OSAHRC 213\/A2, 6 BNA OSHC 1212,1977-78 CCH OSHD\u00a0 ?22, 425 (No. 15052, 1977).\u00a0 As we states recently in FarmersCooperative Grain & Supply Co., supra, \”Even in full compliance with a standardcannot be achieved, an employer must nevertheless protect its employees to the extentpossible against the hazards to which standards are directed.\”\u00a0 10 BNA OSHC AT2089, 1982 CCH OSHD AT P.33,263.We reject Bratton’s impossibility defense for another reason as well.\u00a0 Asindicated, in order to sustain an impossibility defense, the employer must show thatalternative means of protection were unavailable.\u00a0 Here, however, the recordestablishes the contrary, i.e., that there was an alternative means of protection thatcould have been but was not used.\u00a0 The compliance officer testified that a\”jig\” is a device used to hold the material being operated on in a fixedposition while keeping the operator out of the zone of danger.\u00a0 He indicated that thejig is an acceptable alternative to a guard when use of the guard is not \”practical.\”[[4]]\u00a0 However, he also testified that, during the last operation of the machine prior tohis inspection, the router was used without either a guard or a jig.\u00a0 Thus, althoughthere was an alternative means of protecting the machine operator, that means was notused.We further conclude that the record sustains the violation alleged in item 6, includingthe allegation that the violation was \”serious\” as defined at section 17(k) ofthe Act, 29 U.S.C. ?666(j).\u00a0 As stated, the router was used while the ring guard wasremoved and no other from of point-of-operation guarding was provided.\u00a0 The operatorwas thereby exposed to the hazard of possible severe lacerations or amputation of a fingerif he contacted\u00a0 the small, high-speed, rotating blade at the router’s point ofoperation.\u00a0 Bratton either knew or should have known that the router was operatedwithout the guard and without using jig.Accordingly, because the evidence sustains the alleged violation and Bratton failed toestablish its impossibility defense, we reverse Judge Pattom’s decision and order to theextent that it vacated item 6 of citation no. 1.\u00a0 The citation item is affirmed.\u00a0 The Secretary proposed that a $60 penalty be assessed for this violation.\u00a0 Having considered the penalty assessment criteria set forth in section 17(j) of theAct, 29 U.S.C. ? 661(i), with particular emphasis on appropriate.\u00a0 A penalty of $60is therefore assessed.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983\u00a0The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ) , telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386)”