“SECRETARY OF LABOR,Complainant,v.DUN-PAR ENGINEEREDFORM COMPANYRespondent.OSHRC DOCKET NO. 79-2553_DECISION_Before: BUCKLEY, Chairman, and AREY, Commissioner.AREY, Commissioner:This case is before the Commission for the second time, pursuant to acourt of appeals remand order. _Brock v. Dun-Par Engineered Form Co._,843 F.2d 1135 (8th Cir. 1988), _rev’g_, 12 BNA OSHC 1949, 1986-87 CCHOSHD ? 27,650 (No. 79-2553, 1986). In its first decision, theCommission vacated an OSHA citation alleging that Dun-Par violated theguardrail standard at 29 C.F.R. ? 1926.500(d)(1)[[1\/]]. It found thaterection of guardrails was infeasible and that the Secretary had failedto meet her burden of proving that an alternative means of protectionwas feasible.The U. S. Court of Appeals for the Eighth Circuit held that theCommission had improperly placed on the Secretary the burden of provingthe feasibility of alternative protection. The court held that anemployer who demonstrates that literal compliance with an OSHA standardis infeasible must also show that other means of protecting itsemployees were unavailable. 843 F.2d at 1136. The Commission musttherefore determine whether Dun-Par made that showing.[[2\/]]The citation was based on Dun-Par’s failure to protect its employeesfrom perimeter fall hazards on the fifth and sixth floors of an 11-storybuilding under construction in Excelsior Springs, Missouri. Dun-Par wasthe subcontractor at the worksite responsible for constructing, andlater tearing down, the wooden forms into which concrete was poured tocreate the floors (\”decks\”) of the building. Construction had reachedthe sixth floor at the time of OSHA’s inspection.Employees were exposed to falling hazards when erecting forms at theperimeter, and later when stripping them after the concrete deck hadcured. No fall protection devices were provided for these employees. The Secretary did not challenge before the court of appeals theCommission’s finding that guardrails would not have been feasible. Therefore, that finding will be followed in this proceeding as the \”lawof the case.\” _See_, _e.g._, _In re Progressive Farmers Ass’n_, note 2_supra_.The principal unresolved issue in this case is whether Dun-Par couldhave taken alternative measures to protect its employees from thefalling hazards. Several possible alternatives to guardrails werediscussed at the hearing, including perimeter cables, safety belts,catch platforms, and safety nets. Dun-Par argues that all thosesuggested alternatives were infeasible and thus unavailable. It alsoargues that it cannot be found in violation for failure to use catchplatforms or safety nets, because those methods had not been in issue inthe case. However, the feasibility of catch platforms and safety netswas in issue, and the Commission now concludes that Dun-Par has failedto sustain its burden of proving that these methods would have beeninfeasible.[[3\/]]The factors that made guardrails and safety belts infeasible have nobearing in determining whether catch platforms or safety nets would havebeen feasible. In essence, the need to perform work at the edges of thefloors and on the surfaces of the floors made guardrails infeasible,while the need for employee mobility made safety belts infeasible. However, there is no indication that catch platforms or safety netswould have affected Dun-Par’s ability to perform its work.The evidence specifically directed to the feasibility of catch platformsor safety nets may be summarized as follows. In response to a questionby Dun-Par’s counsel, the OSHA inspector testified that a catch platformor a safety net could have protected its employees if guardrails couldnot have been used. He repeated that testimony in response to aspecific question by OSHA’s counsel about how Dun-Par could haveprotected the perimeter of the fifth floor. When asked by Dun-Par’scounsel how the employer could have provided a safety net, the witnesstestified that Dun-Par could have \”[p]ut outriggers out with a shore-upand [hung] nets on it. . . . You could do it from the fifth floor or thefourth floor . . . . It’s not uncommon.\” The record shows that, at thetime of the alleged violation, there already were outrigger steel beamsextending several feet out from the fifth floor perimeter.Dun-Par presented no evidence that safety nets would have beeninfeasible or unavailable. Its president was asked whether safety netscould have been erected on the building, and responded that he did notknow. He had never seen outrigger nets.Dun-Par also did not prove that employee catch platforms would have beeninfeasible or unavailable. Prior to the inspection, the company haderected a materials catch platform that extended out from thefifth-floor perimeter. The platform was three or four feet wide, andabout two to three times as long. It was connected to a permanent partof the structure. Its purpose was to catch materials as they werestripped and to prevent them from falling to the ground and endangeringemployees who were working at ground level. The existing materialscatch platform covered only a small part of the perimeter. It was notdesigned to provide fall protection to employees on the fifth and sixthfloors, and it was inadequate for that purpose. However, its presencesuggests that catch platforms specifically designed to prevent_employees_ from falling to the ground would have been feasible.On this record, Dun-Par has not demonstrated the infeasibility orunavailability of safety nets and catch platforms, and therefore has notestablished the defense of infeasibility of compliance. It should beemphasized that this conclusion is limited to this record and is basedon Dun-Par’s failure to meet the burden of proof imposed on it by theappellate court. _See_ _supra_ note 2. No opinion is intimated as towhether catch platforms and perimeter safety nets are feasible means offall protection in building construction generally. Also, I leave foranother day the question of whether current Commission precedent iscorrect, or whether the Eighth Circuit’s position should be adopted. Commission precedent still places the burden on the Secretary of showinga feasible alternative means of protection when literal compliance witha standard is infeasible.Although the Eighth Circuit has reversed the Commission on the burden ofproof issue, there is no need to reopen the evidentiary record. Contrary to Dun-Par’s assertions, the feasibility of alternative meansof protection was an issue that was tried at the hearing in this case.The evidence discussed above shows that Dun-Par recognized that the useof safety nets and catch platforms are alternative means of protectionwas at issue at the hearing. The OSHA inspector testified about all ofthe alternative fall protection devices discussed in this decision, inresponse to questions by both Dun-Par’s counsel and the Secretary’scounsel. For example, Dun-Par’s counsel asked specific questions abouthow a safety net could have been provided. At the time of the hearingin this case, Commission precedent placed the burden on the employer toshow the unavailability of alternative protection. Dun-Par acknowledgedits awareness of that burden in its post-hearing brief to the judge. The court’s decision does not place a greater burden of proof onDun-Par than it had at the time of the court’s decision had been issuedbefore the case was tried.In sum, Dun-Par unsuccessfully attempted to rebut testimony that wasclearly submitted by the Secretary for the purpose of establishing thatsafety nets and employee catch platforms were feasible and usefulalternatives to guardrails. Dun-Par had adequate notice that thefeasibility of those protective devices was at issue. _Cf._, _Lewis &Lambert Metal Contractors, Inc._, 84 OSAHRC 45\/A2, 12 BNA OSHC 1026,1031 1984-85 CCH OSHD ? 27,073, p. 34,900 (No. 80-5295-S, 1984)(employer may not be found in violation for failure to use alternativemeans of protection not discussed at hearing).Dun-Par raised a second affirmative defense, which was not addressed inthe Commission’s prior decision. Dun-Par argues that it should not befound in violation because the general contractor was responsible forerection of guardrails under an agreement between the two employers. The Commission has permitted a limited defense for some subcontractorson multiple employer worksites in situations where the citedsubcontractor neither created nor controlled the hazardous condition. _See Anning-Johnson_ _Co._, 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76CCH OSHD ? 20,690 (No. 3694, 1976); _Grossman Steel & Aluminum_ _Corp_.,76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ? 20,691 (No. 12775,1976). However, this defense is not available to Dun-Par in thiscase. As in a previous case, \”Dun-Par itself created the hazard byparticipating in the erection of the opensided floor and leaving itsedges unguarded.\” _Dun-Par Engineered Form Co._, 80 OSAHRC 14\/E6, 8 BNAOSHC 1044, 1049, 1980 CCH OSHD ? 24,238, p. 29,492 (No. 16062, 1980),_aff’d_, 676 F.2d 1333, 1336 (10th Cir. 1982). Thus, Dun-Par wasresponsible for compliance with the standard \”[r]egardless of who hadthe contractual responsibility for providing guardrails[.]\” _Id_. _SeeLauhoff Grain Co_., 13 BNA OSHC 1084, 1089, 1986-87 CCH OSHD ? 27,814,p. 36,398 (No. 81-984, 1987) (employer that creates hazard to which itsown employees are exposed may not prevail under _Anning-Johnson_defense). _See also_ _Bratton_ _Corp. v. OSHRC_, 590 F.2d 273 (8th Cir.1979); _Marshall v. Knutson Construction Co_., 566 F.2d 596, 599 (8thCir. 1977) (approving principles of multi-employer worksite defensegenerally.)The Secretary has established all the other elements necessary to provea violation of section 1926.500(d)(1). As noted in the previousCommission decision, it is undisputed that the standard applies to theperimeter form work and that Dun-Par did not comply with its terms. Also, there is no question that Dun-Par’s employees had access to thefall hazards and that Dun-Par knew about the conditions. 12 BNA OSHC at1952, 1986-87 CCH OSHD at p. 36,019. The remaining issues are theclassification of the violation and an appropriate penalty.The violation was serious, as the judge found.[[4\/]] The fall distancewas about 38-46 feet. The judge assessed the maximum penalty for aserious violation — $1000. The basis for the judge’s assessment was asfollows:[R]espondent is of moderate size, has an excellent history, and has anon-going safety program involving both its supervisory and hourlyworkers, and maintains an experienced work force of carpenters. Howevermitigating these circumstances are, it is also clearly demonstrated thatrespondent has a stated reluctance to establish guardrails and a statedhistory of exposing its employees to unguarded perimeters. Therefore,it is felt that respondent’s posture regarding guardrails for itsemployees erecting or stripping out shores overcomes any considerationof mitigation. . . .The judge’s reasoning, and his decision to impose the maximum penalty,are not justified by the record. The evidence does not show stubbornresistance by Dun-Par to the use of guardrails or other fall protectiondevices. Its reluctance to build guardrails was linked to its briefthat they were infeasible and also the fact that contractualresponsibility for guardrails were shown to be infeasible during thephases of construction when Dun-Par’s employees worked at theperimeter. As noted above (n. 3), safety belts also were infeasible,and there was substantial evidence that another common alternative,perimeter cables, was infeasible. The failure to provide catchplatforms or safety nets was due, at least in part, to a lack offamiliarity with these safety devices. Dun-Par had an extensive safetyprogram, and up to that time (over ten years in business) had notexperienced any serious perimeter falls.The Secretary argues that Dun-Par’s failure to provide fall protectionhere was obdurate in light of the previous case where the Commissionfound that Dun-Par repeatedly had violated the same standard cited hereon upper floors in concrete construction. Dun-Par (No. 16062), 8 BNAOSHC at 1050-51, 1980 CCH OSHD at pp. 29,492-94. However, guardrailswere not shown to be infeasible in those situations. The specific andsubstantial feasibility problems here were not addressed there. Noinference of stubborn refusal to protect employees based on that case isappropriate.Penalties are to be assessed in consideration of the gravity of theviolation, the employer’s size, good faith and history of violations. 29U.S.C. ? 666(j). In light of these factors (noted above), a penalty of$160 is appropriate.Thus, the citation for violation of ? 1926.500(d)(1) is affirmed, theviolation is classified as serious, and a penalty of $160 is assessed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: April 12, 1988(actual final order date: April 12, 1989–above date incorrectlypublished in all other media)BUCKLEY, Chairman, concurring:I concur with Commissioner Arey’s disposition of this case, given themandate imposed on the Commission by the Eighth Circuit Court of Appealsin _Brock v. Dun-Par Engineered Form Co._, 843 F.2d 1135 (8th Cir.1988). But I am impelled to point out what I consider to be amisunderstanding by the court of the history of the\”impossibility\/infeasibility\” defense as it was created by the ReviewCommission. Quoting _Brock v. Chicago Zoological Society_, 820 F.2d909, 912 (7th Cir. 1987), the court said, \”[T]he Commission’sreinterpretation of the impossibility defense is owed no specialdeference, because ‘it is the Secretary, not the Commission, whoexercises policymaking and prosecutorial authority under the Act.’\” 843 F.2d at 1137. But it was the Commission rather than the Secretarywho created the defense in the first place.Adjudication under the Act had hardly begun when cited employers beganpresenting to our judges various claims of practical impossibility(infeasibility, in essence). These claims all tended toward one of twoarguments: that it would be impossible\/infeasible to perform work oncethe requirements of the standard were met, or that it would beimpossible\/infeasible even to do what the standard required. _See M.J.Lee Construction Co_., 79 OSAHRC 12\/A2, 7 BNA OSHC 1140, 1144, 1979 CCHOSHD ? 23,330, p. 28,227 (No. 15094, 1979). But this practical defensewas nowhere prescribed by the Secretary; on the contrary, in the earlycases the Secretary opposed the employers’ claims, asserting, amongother things, that the employers were impermissibly questioning thewisdom of the Secretary’s standards, and that the employers shouldinstead either have challenged the standards in pre-enforcement reviewproceedings, or have applied to the Secretary for variances. TheCommission, however, increasingly questioned the reasonableness of theSecretary’s positions and increasingly recognized the practicaljustification of the employers’ claims. _See_, _e.g_., _W.C. SiversCo_., 74 OSAHRC 30\/B5, 1 BNA OSHC 1074, 1973-74 CCH OSHD ? 17,792 (No.239, 1972); _Universal Sheet Metal Corp_., 74 OSAHRC 44\/D7, 2 BNA OSHC1061, 1973-74 CCH OSHD ? 18,163 (No. 657, 1974); _Dic-Underhill, A JointVenture_, 75 OSAHRC 35\/F10, 2 BNA OSHC 1651, 1974-75 CCH OSHD ? 19,328(No. 2232, 1975); _Warnel Corp_., 76 OSAHRC 41\/C5, 4 BNA OSHC 1034,1975-76 CCH OSHD ? 20,576 (No. 4537, 1976); _Rob’t W. Setterlin &_ _SonsCo_., 76 OSAHRC 53\/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD ? 20,682 (No.7377, 1976). And, increasingly, the courts of appeals that addressedthese claims of impossibility\/infeasibility tended to accept the defenseand tended to view it in terms of practical compliance rather thantechnical or physical \”impossibility.\” _See_, _e.g_., _Dorey ElectricCo. v. OSHRC_, 553 F.2d 357, 358-59 (4th Cir. 1977); _Ace Sheeting andRepair Co. v. OSHRC_, 555 F.2d 439, 441-42 (5th Cir. 1977); _GreyhoundLines-West v_. Marshall, 575 F.2d 759, 762 (9th Cir. 1978); _A.E.Burgess Leather Co. v. OSHRC_, 576 F.2d 948, 951-52 (1st Cir. 1978);_Diebold, Inc. v. Marshall_, 585 F.2d 1327, 1339 (6th Cir. 1978);_Southern Colorado Prestress Co. v. OSHRC_, 586 F.2d 1342, 1351 (10thCir. 1978).Furthermore, the Commission’s later-announced element of thedefense–requiring the employer to establish either that alternativeprotective measures had been taken or that they were infeasible orunavailable–departed from the Commission’s earlier decisions withoutexplanation. Those decisions had not made alternative measures anelement; the Commission instead required the Secretary to allege otherstandards which would put at issue particular alternative methods ofprotection. _See_, _e.g_., _Warnel Corp_., _supra_; _Rob’t W.Setterlin & Sons Co_., _supra_. In _Taylor Building Associates_, 77OSAHRC 27\/A10, 5 BNA OSHC 1083, 1085 & n. 8, 1977-78 CCH OSHD ? 21, 592,p. 25,910 & n. 8 (No. 3735, 1977), the Commission specificallydisclaimed that it was determining whether these earlier decisionsshould be reevaluated to add an alternative protection element to theimpossibility defense. Shortly thereafter, however, the Commissioncited Taylor for the proposition that the employer had to establish theunavailability of alternative protection to establish the defense. _Julius Nasso Concrete Corp_., 77 OSAHRC 208\/F2, 6 BNA OSHC 1171,1977-78 CCH OSHD ? 22,401 (No. 16012, 1977). Thus, until its decisionin this case, the Commission never examined whether alternativeprotection should be an element of the impossibility\/infeasibilitydefense or where the burden of proof should lie.Three recognized defenses now contain an alternative measures element: (1) infeasibility (of compliance or of work performance); (2) greaterhazard (while complying or thereafter while working); and (3) themulti-employer worksite defense (that the cited employer on amulti-employer worksite neither created nor controlled the violativecondition). The same element is implicit in the case of a violation ofthe general duty clause. 29 U.S.C. ? 654(a)(1). Certainly, asdiscussed in the Commission’s earlier decision in this case, _Dun-ParEngineered Form Co_., 12 BNA OSHC 1949, 1957-58, 1986-87 CCH OSHD ?27,650, pp. 36,025-26 (No. 79-2553, 1986), the obligation of carryingthe burden of proof should be the same in all of these. In general dutyclause cases, the courts and Commission have uniformly imposed upon theSecretary the burden of proving the feasibility of methods by which toabate the recognized hazard. _See_, _e.g_., _National Realty &Construction Co. v. OSHRC_, 489 F.2d 1257 (D.C. Cir. 1973); _Phillips__Petroleum Co_., 84 OSAHRC 2\/E7, 11 BNA OSHC 1776, 1983-4 CCH OSHC ?26,783 (No. 78-1816, 1984), _aff’d_, No. 84-1425 (10th Cir. Sept. 10,1985); _see also_, _Royal Logging Co._, 79 OSAHRC 84\/A2, 7 BNA OSHC1744, 79 CCH OSHD 23,914 (No. 15169, 1979), _aff’d_, 645 F.2d 822 (9thCir. 1981). For greater hazard defenses, the Commission has generallyrequired the employer to show only the unavailability of alternativemethods of protection proposed by the Secretary. _See_, _e.g_.,_Industrial Steel_ _Erectors, Inc._, 74 OSAHRC 2\/E5, 1 BNA OSHC 1497,1973-4 CCH OSHD ? 17,136 (No. 703, 1974); _H.E. Wiese, Inc_., 82 OSAHRC18\/A2, 10 BNA OSHC 1499, 1982 CCH OSHD ? 25, 985 (No. 78-204, 1982),_aff’d_ No. 82-4202 (5th Cir. 1983). And as to the multi-employerdefense, the Commission has recently held (on the authority of _GrossmanSteel & Aluminum Corp_., 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76 CCHOSHD ? 20,691 (No. 12775, 1976)) that an employer is not required todefend against alternative methods of protection not raised at thehearing. _Lewis & Lambert Metal Contractors, Inc_., 84 OSAHRC 45\/A2, 12BNA OSHC 1026, 1031, 1984-85 CCH OSHD ? 27,073, p. 34,900 (No.80-5295-S, 1984). In all of these the burden of proposing feasiblealternative methods of protection was on the Secretary. TheCommission’s earlier decision in the instant case was, therefore, merelyan effort to return consistency and uniformity to its adjudicatoryprocesses, and at the same time to restructure a departure by theCommission from its prior precedents dealing with theimpossibility\/infeasibility defense. Accordingly, it is with reluctancethat I follow the Eighth Circuit’s decision so summarily declining todefer to the Commission on a defense which the Commission created andjust lately restructured to provide that uniformity————————————————————————SECRETARY OF LABOR,Complainant,v.DUN-PAR ENGINEERED FORM CO.,Respondent.OSHRC Docket No. 79-2553_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651- 678 (\”the Act\”). The Commissionis an adjudicatory agency, independent of the Department of Labor andthe Occupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).As a result of an employee complaint against the general contractor, anOSHA compliance officer inspected a construction worksite in ExcelsiorSprings, Missouri. At the worksite, several different employers wereworking on an eleven-story building. Among the subcontractors wasDun-Par Engineered Form Company (\”Dun-Par\”), which was responsible forthe concrete formwork at the site. When the compliance officer arrivedat the worksite, the building was partially constructed to the sixthfloor. The second, third and fourth floors of the building hadguardrails around the perimeter. However, the fifth and sixth floorsdid not. The compliance officer observed eight Dun-Par employeestearing down formwork on the fifth floor. Although he did not seeanyone on the sixth floor, the compliance officer was told later thatDun-Par employees also had been working on the sixth floor. TheSecretary cited Dun-Par under 29 C.F.R. ? 1926.500(d)(1)[[1]] forfailing to provide guardrails on the fifth and sixth floors. TheSecretary later amended his citation to allege, in the alternative, thatDun-Par should have protected its employees against perimeter falls byproviding them with safety belts under the personal protection equipmentstandard at 29 C.F.R. ? 1926.28(a).[[2]]Judge Dixon affirmed the citation and rejected Dun-Par’s defense thatguardrails were \”impossible\” to erect at the worksite. The judge foundthat Dun-Par could have installed guardrails and also found that\”cables, catch platforms, outriggers and nets, and safety belts\” wouldhave been feasible. We reverse Judge Dixon’s findings and hold thatDun-Par established that guardrails and safety belts were infeasible atthe Excelsior Springs worksite.[[3]]At the worksite, Dun-Par erected the wooden formwork into which concretewas poured to form the structural framework of the building. Thisformwork was erected on each floor of the building. The formwork forone floor could not be erected until the concrete on the previous floorhad hardened.First, the vertical forms, or shores, were built by connecting two 4x4wooden beams together with the aid of an \”ellis clamp.\” Then, 4x6horizontal forms, or ledgers, were attached to the vertical shores andthe vertical and horizontal forms were raised. Every sixteen feet alongthe floor, this same process of combining and then raising vertical andhorizontal forms was repeated. The formwork along the perimeter of thefloor was angled out in such a way that the shores would be able tosupport an overhead walkway that would be built around the floor above.Additional 4×4 horizontal wooden forms, called runners, were attached tojoin the shores and ledgers together. This vertical and horizontalformwork was braced by additional 4×4 and 4×6 wooden beams. Ahorizontal gridwork form was placed down on top of this infrastructureand plywood was nailed down onto the gridwork form. Concrete was thenpoured onto the completed formwork. When the concrete hardened, thewooden formwork was torn down by Dun-Par employees standing in thecenter of the floor and pulling the wooden forms away from the hardenedconcrete. This left a concrete floor, which Dun-Par employees used as abase at some later time to erect vertical and horizontal formwork forthe next floor.Dun-Par argued to the judge that it could not have erected guardrailsand still performed its work at the Excelsior Springs worksite.Specifically, Dun-Par argued \”the functionalimpossibility\/impracticality of perimeter guarding.\” At the hearing,Dun-Par presented the testimony of two Dun-Par construction workers andJohn Dunn, the president of Dun-Par. All three witnesses had extensiveexperience in concrete formwork; all three gave several specific reasonswhy guardrails were not feasible at any stage during Dun-Par’s work. The three Dun-Par witnesses testified that before the plywood forms hadbeen laid on top of the vertical shores and horizontal ledgers andgridwork there was no place to erect guardrails.The compliance officer conceded that guardrails could not be erecteduntil the plywood forms were put down, but contended that guardrailswere feasible on the fifth and sixth floors of the Excelsior Springsproject. However, the Dun-Par witnesses demonstrated that guardrailswould also be infeasible on the fifth and sixth floors. Dunn explainedthat the vertical shoring on one floor was used to support the floorabove and a walkway surrounding the overhead floor. Here, the verticalshoring of the fifth, or \”base\” floor was used to support the sixthfloor and walkway surrounding the sixth floor. Thus, the verticalshoring on the fifth floor had to be angled out so that it supported theoverhead walkway which was beyond the perimeter of the building. Theway in which the vertical shoring was angled out, according to Dunn,made it impossible to erect a guardrail on the fifth floor while theformwork was being erected on top of the concrete base floor. Anyguardrail would interfere with this essential vertical shoring and wouldhave had to be removed when Dun-Par erected the vertical perimetershores. One Dun-Par employee explained that any cable or guardrailaround the perimeter of the building would actually force Dun-Parworkers to perform some of their duties outside the perimeter guarding.Dun-Par’s witnesses also testified that guardrails were not feasible onthe sixth floor during the time between the laying of the plywood coverand the erection of the vertical shores to support the next level. First, the Dun-Par witnesses testified that when the plywood was placeddown and guardrails could be erected, the guardrails would perform nosafety function for the Dun-Par employees. After the plywood forms werein place, Dun-Par’s work on the floor was completed and the otherbuilding trades would come on to the floor and perform their duties. AsDunn explained, after plywood forms were in place, Dun-Par employeeswere \”down the building and other trades are moving in.\”Dunn stated that a single Dun-Par employee oversaw the pouring ofconcrete over the wooden forms to check for any unusual weaknesses inthe formwork. However, this employee, according to Dunn, would not goto the perimeter of the building unless there was a particular problem.Finally, the Dun-Par witnesses explained that the guardrails would bedestroyed when Dun-Par employees returned to remove the shoring afterthe concrete was poured. The wooden shores were wedged into place andwere removed by pulling them out. According to Dun-Par witnesses, anyguardrails in place would be destroyed when the shoring was rippeddown. Therefore, guardrails would not be feasible during the tearingdown of the formwork.Dun-Par also argued that \”a safety belt\/life line system of protectionis neither feasible nor of likely utility.\” The Secretary presentedonly the general opinion of the compliance officer — who had noexperience in concrete formwork — that such protection could have beenprovided. On the other hand, Dun-Par presented specific testimony as towhy safety belts would not have been feasible. When asked whetherDun-Par employees could wear safety belts and still perform theirduties, Dunn explained that Dun-Par employees needed to move aroundfreely in the work area in order to do their job. He added, \”We’regoing up and down ladders. Safety belts would just be impossible to dothe job, do the work.\”IITo prove a violation of an OSHA standard, such as sections1926.500(d)(1) or 1926.28(a), the Secretary must establish (1) theapplicability of the cited standard, (2) the existence of noncomplyingconditions, (3) employee exposure or access, and (4) that employer knewor with the exercise of reasonable diligence could have known of theviolative condition. _See Belger Cartage_ _Service Inc_., 79 OSAHRC16\/B4, 7 BNA OSHC 1233, 1235, 1979 CCH OSHD ? 23,440, p. 28,373 (No.76-1480, 1979); _Harvey Workover, Inc_., 79 OSAHRC 72\/D5, 7 BNA OSHC1687, 1688-90, 1979 CCH OSHD ? 23,830, pp. 28,908-10 (No. 76-1408,1979). Here, there is no dispute about either the applicability of thestandards or that there were no guardrails or safety belts being used atthe worksite. Neither is there any question that Dun-Par employees hadaccess to the unguarded perimeter or that Dun-Par knew about thecondition. The question in this case is whether, as the direction forreview suggests, the erection of guardrails and use of safety belts werefeasible at the Excelsior Springs worksite.The Commission has long held that employers may defend against acitation that alleges a violation of an OSHA standard requiring aparticular means of abatement,–in this case, section 1926.500(d)(1),which requires the installation of guardrails–by proving theaffirmative defense of \”impossibility.\” _E.g_., _Julius Nasso ConcreteCorp_., 77 OSAHRC 208\/F2, 6 BNA OSHC 1171, 1977-78 CCH OSHD ? 22,401(No. 16012, 1977). This defense has two elements: (1) impossibilityand (2) proof of alternative protection. Under this defense the employermust first demonstrate that compliance with the standard’s literalrequirements was not possible or would preclude performance of theemployer’s work. _E.g_., _Braxton Furniture Manufacturing Co_., 83OSAHRC 30\/A2, 11 BNA OSHC 1433, 1435, 1983-84 CCH OSHD ? 26,538, p.33,858 (No. 81-799, 1983). Secondly, the employer must show that hetook alternative means of protection not specified in the standard, orthat alternative means of protection were unavailable. _Id_. _See__also American Luggage Works, Inc_., 82 OSAHRC 30\/C7, 10 BNA OSHC 1678,1683, 1982 CCH OSHD ? 26,072, p. 32,797 (No. 77- 893, 1982).The Secretary argues that Judge Dixon was correct in finding thatDun-Par failed to establish the elements of the impossibility defense. According to the Secretary, Dun-Par failed to show that the erection ofguardrails or the use of safety belts would have prevented Dun-Par fromdoing its work. The Secretary also argues that Dun-Par failed to showthat other ways of protecting the workers were not available.On review, Dun-Par does not argue that the erection of guardrails wasabsolutely impossible but that the guardrails \”were not a feasible meansto protect Dun-Par employees due to the circumstances and nature of Dun-Par’s work.\” Dun-Par further argues that the guardrails were not\”practical\” and that their use at the workplace was \”contrary to commonsense and the purpose of the Act.\” Similarly, Dun-Par argues that therecord establishes that safety belts were \”neither feasible nor oflikely utility.\” Dun-Par argues that the Commission should follow therationale of the United States Court of Appeals for the Eighth Circuitin _H.S. Holtze_ _Construction Co. v. _OSAHRC, 627 F.2d 149 (8th Cir.1980), and adopt a more practical and reasonable approach to the defenseof \”impossibility.\”Dun-Par’s arguments on review are not couched in the traditional termsof the impossibility defense. Dun-Par does not claim that the erectionof guardrails or the use of safety belts was \”impossible\” but only thatthese means of protection did not make sense given the manner in whichDun-Par performed its work. Neither does Dun-Par make any claim that ittook available, alternative measures, as required under the secondelement of the \”impossibility\” defense. Essentially, Dun-Par questionsthe \”impossibility\” defense as it has been developed by the Commission.A.Heretofore, the initial requirement of the impossibility defense wasthat the employer was required to show that it is \”impossible\” to complywith a standard. Although Commission decisions have consistentlyspoken of \”impossibility,\” several courts of appeals have insteadinquired whether compliance was \”infeasible.\”[[4]] It is to thisdistinction between \”impossibility\” and \”infeasibility\” that we now turn.Section 5(a)(2) of the Act, 29 U.S.C. ? 654(a)(2), states simply thatemployers \”shall comply with occupational safety and health standardspromulgated under this Act.\” However, it soon became apparent to theCommission that this provision of the Act could not reasonably beapplied in a literal manner and that some sort of impossibility orinfeasibility defense was necessary.The Commission’s use of the word \”impossibility\” began in _W.C. Sivers_,74 OSAHRC 30\/B5, 1 BNA OSHC 1074, 1973-74 CCH OSHD ? 17,792 (No. 239,1972). There, the employer had suggested that compliance with astandard would have prevented work from being performed. The Commissionremanded to give the employer an opportunity to prove this but reserveddecision on whether the allegation was a defense. The Commission statedsimply that:It may well be that [the employer], by this allegation, intended toraise (albeit inartfully) impossibility of compliance as an affirmativedefense. We would give [the employer] the opportunity to present thedefense without venturing any opinion at this time concerning thequestion of the completeness of the defense, if established under the Act.1 BNA OSHC at 1076, 1973-74 CCH OSHD at p. 22,165.In the first Commission decision that actually upheld the defense, theCommission vacated a citation for a violation of standards requiringguardrails on the ground that the work would have been \”impossible\” withthe railings in place. _W.B. Meredith, II, Inc._, 74 OSAHRC 39\/A2, 1BNA OSHC 1782, 1973-74 CCH OSHD ? 18,003 (No. 810, 1974); _see alsoGarrison & Associates, Inc._, 75 OSAHRC 51\/D5, 3 BNA OSHC 1110, 1974-75CCH OSHD ? 19,550 (No. 4235, 1975). The Commission did not, however,make clear why a showing of \”impossibility\” was necessary, as opposed toa showing of \”infeasibility.\” Possibly early members of the Commissionsaw no sharp distinction between the two, because thereafter, in _K & TSteel Corp_., 76 OSAHRC 31\/A2, 3 BNA OSHC 2026, 2028, 1975-76 CCH OSHD ?20,445, p. 24,415 (No. 5769, 1976), the Commission held that the\”impossibility\” defense had not been proven because the evidence showedthe \”feasibility\” of using a guarding method required by a standard. _See_ _also Central Steel & Tank Co_., 75 OSAHRC 9\/A2, 3 BNA OSHC 1711,1712, 1975-76 CCH OSHD ? 20,172, p. 24,017 (No. 2346, 1975) (employerfailed to establish that no \”practical\” means of guarding exists;\”impossibility\” defense not proved); and _Universal Sheet Metal Corp_.,74 OSAHRC 44\/D7, 2 BNA OSHC 1061, 1973-74 CCH OSHD ? 18,163 (No. 657,1974) (compliance with standard would render performance of work \”verydifficult if not impossible.\”) When finally in _C. Kaufman, Inc_., 78OSAHRC 3\/C1, 6 BNA OSHC 1295, 1300, 1977-78 CCH OSHD ? 22,481, p. 27,101(No. 14249, 1978), and _Hughes_ _Brothers, Inc_., 78 OSAHRC 65\/A2, 6 BNAOSHC 1830, 1835, 1978 CCH OSHD ? 22,909, p. 27,719 (No. 12523, 1978),the Commission drew a sharp distinction between the terms\”impossibility\” and \”infeasibility,\” it did not explain why it did so. _See_ _also_ _StanBest, Inc_., 83 OSAHRC 10\/D6, 11 BNA OSHC 1222, 1231,1983-84 CCH OSHD ? 26,455, p. 33,624 (No. 76-4335, 1983).We think that the early members of the Commission correctly appreciatedthat literal compliance with the standards was not always possible. However, we do not believe the so-called impossibility defense, aspresently framed, adequately reflects the obligations of employers underthe Act. The standards adopted in the earliest days of the Act werenational consensus standards and established federal standards, whichCongress had required the Secretary to adopt quickly without additionalrulemaking. See sections 3(9), 3(10) and 6(a) of Act, 29 U.S.C. ??652(9), 652(10) and 655(a). The national consensus standards, whichwere the source of the \”overwhelming majority of safety standards,\”[[5]]were often out-of-date by the time OSHA adopted them.[[6]] They hadbeen drafted by committees of industry representatives under theauspices of private standard-setting organizations, particularly theAmerican National Standards Institute (ANSI) and the National FireProtection Association (NFPA), and were not intended to be used asmandatory, inflexible legal requirements. A managing director of ANSI,for example, commented that \”[i]n the days before OSHA, when standardswere developed as advisories, not laws, the committees sometimes tendedto incorporate some lofty goals, knowing they would never be heldaccountable if [employers] didn’t achieve them.\”[[7]] As one observernoted:… [P]rivate standards were often written as goals to be attainedrather than as rules intended to be enforced…. Many combine arbitrary levels, values, or other requirements with aneither explicit or implicit understanding that these requirements arenot to be applied by rote to every situation which they might literallycover.[[8]]Both OSHA officials and early members of the Commission recognized thatthe voluntary consensus standards were not designed to be rigidlyenforced.[[9]] This view was reaffirmed by the Third Circuit in_A.F.L.-C.I.O. v. Brennan_, 530 F.3d 109, 112 (3d Cir. 1975). That caseinvolved a machine guarding standard that was derived from an ANSIstandard. The court observed that \”[w]hen it promulgated the no handsin dies standard, the [ANSI] B 11 standards committee did not anticipatethat its code would … become a mandatory federal standard rather thana precatory guideline for the affected industries.\”This lack of expectation of rigid enforcement also lay behind theestablished federal standards adopted en masse in 1971. Many were takenfrom standards adopted under the Walsh-Healey Public Contracts Act, 41U.S.C. ?? 35-45. Yet, the Walsh-Healey standards were only interpretiverules, designed to establish a benchmark for employee safety and healthbut not to finally determine the government contractor’s duty. Thus,Labor Department regulations permitted the contractor to challenge the\”legality, fairness or propriety\” of the Labor Department’s reliance ona standard to show a violation of the statutory prohibition against\”unsanitary or hazardous or dangerous working conditions.\” 41 C.F.R. ?50-204.1. _See generally American Can Co_., 82 OSAHRC 5\/A2, 10 BNA OSHC1305, 1311, 1982 CCH OSHD ? 25,899, p. 32,414 (No. 76-5162 1982).The same is true of the Construction Safety Act standards in 29 C.F.R.Part 1926, which were originally adopted under and interpreted theContract Work Hours and Safety Standards Act, 40 U.S.C. ? 327 _et seq_. (commonly known as the \”Construction Safety Act\”). According to 29C.F.R. ? 1926.10 (first designated 29 C.F.R. ? 1518.10), theConstruction Safety Act standards were specifically intended tointerpret and apply section 107 of the Construction Safety Act, 30U.S.C. ? 333, which prohibits \”unsanitary, hazardous, or dangerous\”working conditions in government construction work. However, theprocedures for enforcement were to be those under the Service ContractAct, 41 U.S.C. ? 351 _et_ _seq_. 29 C.F.R. ? 1926.4 (first designated29 C.F.R. ? 1518.4), _adopted at_ 36 Fed. Reg. 7340, 7341 (1971). Theversion of the pertinent Service Contract Act regulation that was ineffect when the Construction Safety Act standards were adoptedprescribed a system like that in the Walsh-Healey Act: Labor Departmentinvestigators and other officers were instructed to \”assume that failureto comply with…the safety and health measures provided in [the ServiceContract Act standards] results in working conditions which are’unsanitary or hazardous or dangerous….’\” In \”formal enforcementproceedings,\” however, contractors would \”be permitted to demonstrate byreliable, substantial, probative evidence, that their failure to complywith [the Service Contract Act standards] did not result in workingconditions unsanitary or hazardous or dangerous….\” Section 1516.1(b)and (c), _adopted at_ 32 Fed. Reg. 21036-21037 (1967). Thus, theConstruction Safety Act standards were originally intended to be onlyinterpretive regulations; failure to follow a standard was not _per__se_ violation.Moreover, many, if not most, of the interpretive standards adopted underthe Walsh-Healey Act and the Construction Safety Act were themselvesderived from private, voluntary standards, which, as we have noted, werenot drafted as inflexible, legal commands.[[10]]The Commission’s experience in interpreting and applying the OSHAstandards adopted under section 6(a) has been consistent with the aboveaccount of their history–that they could not possibly have been writtenwith literal application in mind; rather the standards were designed notfor all cases but for the normal case.[[11]] As the Eighth Circuitpointed out in _H.S. Holtze_ _Construction Co. v. Marshall_, 627 F.2d at151-52, \”some modicum of reasonableness and common sense is implied.\”[[12]]Strict application of an \”impossibility\” defense does not accommodateconsiderations of reasonableness or common sense, or reflect the strongsense of the practical implicit in the standards adopted under section6(a). Feasibility, on the other hand, is consistent with therequirements of the Act and with earlier Commission decisions. Thisview is buttressed by the legislative history of the Act and by thelanguage of some standards. Thus, section 6(b)(5), by which meansCongress intended the Secretary to adopt the health standards that wouldreplace OSHA \”interim\” standards, speaks expressly of \”feasibility.\” One court has inferred from section 6(b)(5) that all OSHA standards areimplicitly constrained by the feasibility requirement. _SeeA.F.L.-C.I.O. v. Brennan_, 530 F.2d 109, 121 (3d Cir. 1975); _Atlantic &Gulf Stevedores, Inc. v. OSHRC_, 534 F.2d 541, 555 (3d Cir. 1976). TheSecretary’s own standards–particularly the new healthstandards–consistently use the word \”feasible\” to qualify theemployer’s obligation.[[13]] The general duty imposed by section5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), which applies when nostandard is applicable, is also implicitly qualified by the concept of\”feasibility.\” _See National Realty & Construction Co. v. OSHRC_, 489F.2d 1257 (D.C. Cir. 1973). Finally, when a standard is so unclear thatit would otherwise be held unconstitutionally vague, the Commission andseveral courts of appeals have held that the standard applies only tothe extent the duty imposed on the employer is \”feasible.\” _See__Granite City Terminals Corp_., 86 OSAHRC ____, 12 BNA OSHC 1741, 1746 &n.10., 1986 CCH OSHD ? 27,547, pp. 35,774-75 & n.10 (No. 83-882-S,1986); _Frank Briscoe Co., Inc_., 76 OSAHRC 129\/A2, 4 BNA OSHC 1729,1976-77 CCH OSHD ? 21,162 (No. 7792, 1976); _L. R. Willson & Sons, Inc.v. OSHRC_, 698 F.2d 507 (D.C. Cir. 1983); _Modern Drop Forge_ _Co. v.Secretary of Labor_, 683 F.2d 1105 (7th Cir. 1982); _Voegele Co. v.OSHRC_, 625 F.2d 1075 (3rd Cir. 1980); _Ray Evers_ _Welding v. OSHRC_,625 F.2d 726 (6th Cir. 1980); _Bristol Steel & Iron Works, Inc. v.OSHRC_, 601 F.2d 717 (4th Cir. 1979); _General Electric Co. v. OSHRC_,540 F.2d 67 (2d Cir. 1976).We agree with several courts of appeals that \”rather than’impossibility,’ the question is more properly thought of in terms of[in]feasibility. _A.E. Burgess Leather Co. v. OSHRC_, 576 F.2d 948, 950& n.1 (1st Cir. 1978).[[14]] We therefore modify the defense bychanging the inquiry in the first element from \”impossibility\” to\”infeasibility.\” We overrule Commission precedent that requiresemployers to prove that compliance with a standard is \”impossible\”rather than \”infeasible.\”B.Under the second element of the impossibility defense, an employer whoestablished the impossibility of the cited standard was also required topersuade the trier of fact by a preponderance of the evidence thatalternative protective measures had been taken or were unavailable. _M.J. Lee Construction Co_., 79 OSAHRC 12\/A2, 7 BNA OSHC 1140, 1146, 1979CCH OSHD ? 23,330, p. 28,229 (No. 15094, 1979). Although section5(a)(2) of the Act does not expressly impose a requirement to useavailable alternative protective measures, the Commission has reasonedthat an employer should do something to protect its employees if literalcompliance with a standard is impossible. _See_ _id_.However, none of the Commission cases that discussed the impossibilitydefense and that allocated the burden of persuasion to the employer toestablish that compliance with a standard was \”impossible,\” everanalyzed why the employer should also have the burden of persuasion toestablish that alternative means of protection were \”unavailable\” or why\”unavailability\” should be the test for determining the employer’s duty. Similarly, although the courts of appeals upheld the Commission’sallocation of the burden of persuasion to the employer to establish thatcompliance with the cited standard was \”infeasible\” or \”impossible,\”_Cleveland_ _Consolidated v. OSHRC_, 649 F.2d 1160 (5th Cir. 1981);_Southern Colorado Prestress Co. v. OSHRC_, 586 F.2d 1342 (10th Cir.1978); _Diebold Inc. v. Marshall_, 585 F.2d 1327 (6th Cir. 1978); _A.E.Burgess Leather Co. v. OSHRC_, 576 F.2d 948 (1st Cir. 1978); _AceSheeting & Repair Co. v. OSHRC_, 555 F.2d 439 (5th Cir. 1977), none ofthe courts discussed the allocation of the burden of persuasion on thealternative measures element.The allocation to the employer of the burden of persuasion on thealternative measures issue posed almost insoluble litigating problemsfor the employer: He would have to prove the negative of a propositionand he could never know when he had proven the unavailability of all thealternative measures that could possibly exist. To prepare for ahearing in which the impossibility of abatement would be in issue, theemployer would have to conceive of all possible alternative measures,including those that might be suggested by the Secretary or hiswitnesses, and prepare evidence to establish that all those measureswere \”unavailable.\” Still, the employer could never know for certainthat he had prepared his defense adequately, that he had addressed allpossible alternative measures. Others might occur to the Secretary, thejudge or the Commission that the employer might not have anticipated nomatter how diligent or imaginative his preparation for the hearing.We conclude that the burden of proposing alternative means of protectionand persuading the trier of fact that the employer failed to use themmore fairly rests with the Secretary.It should be noted that there are \”no hard-and-fast standards governingthe allocation of the burden of proof in every situation.\” _Keyes v.School District No.1, Denver, Colo._, 413 U.S. 189, 209 (1973). Wherethe burden of persuasion falls will ultimately rest \”upon broad reasonsof experience and fairness.\” J. Wigmore, _Evidence_ ? 2486 at 292 (J.Chadbourn ed., 1981).The courts have considered a host of factors when deciding whether toplace the burden of persuasion with one party or another.[[15]] _See__McCormick_, _Laws of Evidence_ ? 337 at 788-789 (2d ed. 1972). Onefactor that is carefully considered is whether the facts with regard toan issue are within the knowledge of a particular party; if they are,that party is more likely to be allocated the burden of establishingthose facts. _McCormick_ at 787; _Advanced Micro Devices v. C.A.B_, 742F.2d 1520 (D.C. Cir. 1984). _See also Louisiana-Pacific Corp_., 77OSAHRC 63\/E14, 5 BNA OSHC 1572, 1977 CCH OSHD ? 21,977 (No. 6277, 1977)(concurring opinion). One court used this reasoning in holding that theburden of persuasion should be on the employer to establish thatcompliance with the cited standard was infeasible. The Fifth Circuit in_Ace Sheeting_ observed:Here, the regulation stated specific ways for the employer to eliminatethe hazard. If the employer put up guard rails or covered theskylights, the safety standard would have been met. If for any reasonguard rails or covers are not feasible, the employer knows this betterthan anyone else, and it is reasonable to require him to come forwardwith the evidence to prove it. . . . We therefore hold that where aspecific duty standard contains the method by which the work hazard isto be abated, the burden of proof is on the employer to demonstrate thatthe remedy contained in the regulation is infeasible under theparticular circumstances._Ace Sheeting_, 555 F.2d at 441.On the other hand, determining whether alternative feasible means ofprotection could have been used in a particular situation requiressafety expertise and a broad knowledge of available abatementmethods.[[16]] An employer is not always aware of the many alternativemeans of protection, particularly if the alternative means of protectionare not commonly used in the employer’s industry. Knowledge of thevarious alternative means of protection is more likely to reside withthe compliance officer and other employees of the Occupational Safetyand Health Administration. The employer does not on balance have anypeculiar knowledge concerning alternative means of protection and mayindeed have less knowledge than OSHA of such matters.The allocation to the Secretary of the burden of alleging andestablishing alternative means of protection is more consistent withholdings in closely analogous areas of occupational safety and healthlaw. Where a statute or standard specifies a means of abatement orstates specific performance criteria, an employer is informed of hisduty; if he raises an infeasibility defense, he will know what measureshe must prove are \”infeasible.\” If the standard or statute (forexample, the general duty clause) is not so specific, however, theCommission and the courts have imposed on the Secretary the duty tospecify and prove the feasibility of a means of abatement. _CompareNational Realty & Construction Co., Inc. v. OSHRC_, 489 F.2d 1257, 1268(D.C. Cir. 1973) (general duty clause), _and Granite City TerminalsCorp_., 86 OSAHRC ____, 12 BNA OSHC 1741, 1746, 1986 CCH OSHD ? 27,547,p. 35,775 (No. 83-882-S, 1986) (general standards), _with AnoplateCorp._, 86 OSAHRC ____, 12 BNA OSHC 1678, 1684, 1986 CCH OSHD ? 27,519,p. 35,682 (No. 80-4109, 1986) (no burden of proving feasibility wherestandard is specific). Here, once the employer has proven theinfeasibility of the specific means of abatement imposed by or describedby a standard, the situation is similar to one in which a standard orstatute prescribes none at all. Here too then, we think it appropriateto impose on the Secretary the duty to formulate his own theory of whatthe employer should have done, to allege that theory and to support itwith evidence at the hearing.For much the same reason, the Secretary will be required to show thatthe alternative means of protection is \”feasible\” and not merely\”available.\” This accords with the reasoning of the District ofColumbia Circuit in National Realty that we mentioned above, and, asdiscussed in Part II.A of this decision, with the language, structureand purpose of the Act. The Secretary must therefore show that thealternative means is a practical and realistic method, given thecircumstances at the workplace, to protect the employer’s workers, andthat the employer did not use it.The employer may, of course, rebut the Secretary’s showing that theemployer did not use a feasible alternative method of protection. Hemay, among other things, show that he had used another alternativeprotective method that was reasonably designed to mitigate the hazard. The alternative method actually used by the employer need not, however,be as protective as the method proposed by the Secretary; it need onlyprovide as much protection as the method required by the standard or, inthe case of a general standard, by the method of protection proven to bea feasible method of complying with the standard.We believe the reallocation of the burden of persuasion described inthis decision will be fairer to the parties. It will give the employersufficient notice of what alternative means of protection will be thesubject of the litigation. We also believe this reallocation of theburden of persuasion will \”sharpen the inquiry\” and \”frame the factualquestion\” to the essential question concerning alternative means ofprotection: what could the employer have done to bring himself intocompliance with the cited standard? _See_ _Texas District of CommunityAffairs v. Burdine_, 450 U.S. 248, 255 (1981). This will result in thecreation of a fuller record concerning the important issues of the caseand therefore better decision making.In placing on the Secretary the burden to show the feasibility ofspecific alternative measures, we do not hold that when employers arefaced with the infeasibility of the specific abatement method identifiedin applicable standards, they are free to do nothing until told what todo by the Secretary in an adjudicatory proceeding. Just as employershave a duty to make reasonable efforts to comply with the general dutyclause and standards that state only a general duty, employers who findidentified forms of abatement infeasible continue to have a duty to makereasonable efforts to utilize other means of abating the hazard of whichthe standard gives them notice.The concurring opinion argues that due process problems will arisebecause the employer may be held in violation of the Act for not takingmeasures that are not required by standards promulgated under section5(a)(2) or under the general duty clause of the Act. We believe thatthere are not such due process problems.We do not agree with the concurrence that the Secretary’s alternativemeasure must be derived from the most specifically applicable standardor through independent proof of a recognized hazard under section5(a)(1). In large measure the concurrence, by permitting an alternativemeasure to be rebutted on grounds of inapplicability or preemption,would preclude the Secretary from rebutting an infeasibility defensesince most standards are hazard specific. The Secretary need not offerindependent proof of recognition of the hazard since the standard whichhe first cited gives the employer notice of the hazard. Nor, where acited standard would require abatement of other than serious hazards,would it be necessary for the Secretary to show the hazard to be likelyto cause death or serious injury. It having been established inrulemaking that the hazard warrants precautionary measures, theremaining issue, where the employer has raised infeasibility ofcompliance as a defense, is simply the feasibility and likely utility ofmeans of abatement not specified in the standard. We would reiterate,however, that the Secretary has the same burden to show feasibility ofthe alternative measure as under the general duty clause.That the exact measures the employer should have taken are not spelledout in a standard is no different from when an employer is cited underthe general duty clause or a performance standard. There, an employeris not apprised of specific measures he must take to comply with thegeneral duty clause or a performance standard, but rather only with thegeneral nature of the hazard. Just as the Commission and the courtshave found no due process problems with the lack of specific abatementmethods in the general duty clause or general performancestandards,[[17]] we perceive no violation of due process because anemployer is not notified in a standard of the specific alternative meansof abatement he could take to protect his employees. In both cases, theemployer has a duty to think for himself and determine what feasibly canbe done.III.Applying the infeasibility defense here, the question is whether Dun-Parestablished that guardrails could not have been installed or would havedisrupted the work to such a degree that there was no feasible way touse guardrails to protect Dun-Par’s employees. Dun-Par’s work inerecting the concrete formwork occurred in several distinct stages.In the first stage, Dun-Par employees constructed and then raisedvertical and horizontal forms every 16 feet along the floor. Bothparties agreed that at this stage, before the plywood was laid on top ofthe vertical and horizontal forms, there was simply no place to putguardrails. Therefore, at this stage in Dun-Par’s work, guardrails wereinfeasible.In the next stage of Dun-Par’s work, Dun-Par’s employees attachedplywood to the vertical and horizontal forms so that concrete could bepoured onto the wooden forms. The parties disagreed whether guardrailscould be used at this stage of Dun-Par’s work. Dun-Par argued thatguardrails could not be used because of the way in which the verticalshores along the perimeter of the building had to be angled out. Dun-Par’s witnesses explained that the vertical shores along theperimeter of the building were used to support the overhead floor and awalkway surrounding the floor above. According to Dun-Par’s witnesses,the way in which vertical shores were angled would leave no room forguardrails along the perimeter.From the evidence at the hearing, it appears that it was theoreticallypossible to erect guardrails once the plywood was put down. However,just because there was some conceivable way to erect guardrails does notmean that guardrails were feasible. As the Dun-Par witnesses explained,guardrails would interfere with the vertical shoring along the perimeterof the floor. Any guardrail along the perimeter would have to beremoved so as not to interfere with this shoring. Thus, guardrailscould have been placed somewhere on the floor though not along theperimeter. Dun-Par witnesses testified, however, that any perimeterguarding would force Dun-Par employees to work outside the perimeterguards. We therefore find that guardrails were infeasible at this stageof Dun-Par’s operation. Requiring an employer constantly to erect andtear down the guardrails or to have its employees work outside theguardrails in order to complete their work is not a feasible method ofcomplying with section 1926.500(d)(1).The next stage of work was the pouring of concrete. This began afterthe vertical and horizontal forms were erected and the plywood was laiddown. By this time, almost all of the Dun-Par employees had left thework area. Only one Dun-Par employee generally remained to oversee thepouring of concrete over the wooden forms and to check for any saggingor slippage in the forms. The employee would have no occasion toapproach the perimeter of the floor unless there was an unexpectedproblem with the shores at the perimeter of the building during theconcrete pour.We are unconvinced by the Secretary’s evidence of employee access atthis stage. The Secretary must prove that it is reasonably predictablethat \”employees either while in the course of their assigned duties,their personal comfort activities while on the job, or their normalmeans of ingress-egress to their assigned workplaces, will be, are orhave been in a zone of danger.\” _Carpenter_ _Contracting Corp_., 84OSAHRC _____ , 11 BNA OSHC 2027, 2029, 1984 CCH OSHD ? 26,950, p. 34,563(No. 81-838, 1984); _Gilles & Cotting, Inc_., 76 OSAHRC 30\/D9, 3 BNAOSHC 2002, 2003, 1975-76 CCH OSHD ? 20,448, p. 24,425 (No. 504, 1976). Here, the evidence consists of no more than speculation that an employeemight go to the edge of the building if an unusual event occurred. Although it may have been physically possible to erect perimeterguardrails at this stage, it would have made no practical sense forDun-Par to have done so. Dun-Par undoubtedly would have had to engageother employees in the erection of guardrails along the entire perimeterof the fifth floor, thereby inevitably exposing them to a fall hazard. This would have been done to protect one employee in the event of anunusual occurrence during the concrete pour — that an employee would goto the floor perimeter to check for sagging or slippage of the woodenforms. We find that guardrails would not have been a feasible way toprotect that single Dun-Par employee during the concrete pour.After the poured concrete hardened, Dun-Par employees returned to thework area to remove the wooden forms. Dun-Par employees would standaway from the perimeter of the floor and pull the wooden forms with theaid of a rope or board toward the center of the floor. Uncontradictedtestimony by Dun-Par’s witnesses established that any guardrails wouldhave been destroyed by this procedure. At this point, guardrails mayhave been theoretically possible but they would have served no practicalpurpose in protecting the employees. Under the circumstances, we findthat guardrails at this stage of Dun-Par’s work were infeasible.As we stated previously, feasibility must reflect the strong sense ofthe practical implicit in the OSHA standards. The question of whether ameans of protection is infeasible must be answered in light of thepractical realities of the particular workplace. Looking at theevidence presented concerning each stage of Dun-Par’s operations, wefind that Dun-Par established by a preponderance of the evidence thatthere was no feasible way to comply with section 1926.500(d)(1). Therefore, we uphold Dun-Par’s affirmative defense that guardrails wereinfeasible.The Secretary alternatively charged that safety belts could be used atthe workplace. Dun-Par maintained that because its employees needed tomove about the worksite freely, safety belts would not be feasible. In_Granite City Terminals Corp_., 86 OSAHRC , 12 BNA OSHC 1741, 1746 &n.10, 1986 CCH OSHD ? 27,547, p. 35,775 (No. 83-882-S), the Commissionheld that when an employer is cited under a general standard, such assection 1926.28(a), which does not specify a particular method ofcompliance, the Secretary must prove that there is a feasible means ofcomplying with the standard.[[18]] The Secretary, then, has the burdenof proving that safety belts were feasible at the Excelsior Springsworksite.After weighing the testimony presented at the hearing and consideringthe practical realities of the workplace, we find that the Secretaryfailed to establish that safety belts were feasible. The Secretarypresented no evidence concerning how the safety belts would actually beused at the workplace beyond the compliance officer’s bare claim thatsafety belts were feasible. On the other hand, Dun-Par presentedspecific testimony which established that safety belts were infeasible. Mr. Dunn, who had much more experience with concrete formwork than thecompliance officer, explained the need for Dun-Par workers to movefreely about the work area, often moving up and down ladders.Although we uphold Dun-Par’s infeasibility defense with respect toguardrails and find that the Secretary failed to establish thefeasibility of safety belts, we do not yet vacate the citation. As wediscussed at some length above, when an employer argues that compliancewith a cited standard is infeasible, the Secretary has the burden ofpersuasion to establish that a feasible alternative means of protectionexisted and the employer did not use it. The Secretary, of course, wasnot on notice that he had the burden of establishing a feasiblealternative means of protection and so produced very little evidenceconcerning any alternative methods. Similarly, the Secretary was notthen on notice that he bore a burden of proving the feasibility ofsafety belts. The Secretary will therefore be granted an opportunity toadduce additional evidence on the feasibility of safety belts and toamend his pleadings to allege that Dun-Par failed to use feasiblealternative means of protection.Accordingly, the citation is vacated unless the Secretary, within tendays from the issuance of this decision, moves that this case beremanded to permit him to adduce additional evidence on the feasibilityof safety belts, or to amend his pleadings to allege that Dun-Par failedto use specific feasible alternative means of protection, and to adduceadditional evidence concerning those matters.FOR THE COMMISSIONExecutive SecretaryDated: July 30, 1986RADER, Commissioner, concurring in part and dissenting in part:I join with the majority in holding that the so-called \”impossibility\”defense is more properly cast in terms of \”infeasibility.\” I also agreethat when an employer raises the infeasibility defense it is theSecretary’s burden to plead and prove the alternative means ofprotection that the employer should have utilized. Since we havesubstantially altered the respective burdens of persuasion and goingforward with the evidence where infeasibility is raised as a defense, Iwould add a brief explanation of how the defense will work from aprocedural standpoint.In a typical case the Secretary will allege in his complaint that theemployer has violated a certain standard. The employer will then raisethe affirmative defense of infeasibility in his answer. At that pointthe Secretary is on notice that he may have to prove there werealternative measures the employer could and should have used. Since, aswe have noted, the Secretary has peculiar knowledge of the availablealternative means of protection, and especially those upon which he mayoffer evidence at trial, he should amend his complaint to allege thosealternative measures the employer should have taken if, in fact,compliance with the cited standard is infeasible. In this manner, then,both parties will have fair notice of the claims and defenses of theother prior to trial.In the present case we unanimously vacate the citation under section1926.500(d)(1) because Dun-Par demonstrated that guardrails were simplyinfeasible. Since the Secretary did not know it was his burden toallege and prove alternative means of protection, we agree that theSecretary should be afforded the opportunity to do so now. It is atthis point, however, that I part company with the majority. I differwith the majority as to what alternative measures the Secretary maypropose. Under the majority view, once the infeasibility defense israised the Secretary may advocate any feasible alternative means ofprotection, even if those alternative measures are contained ininapplicable standards, or standards that are preempted under 29 C.F.R.1910.5(c) by more specific but uncited standards, _or_ _are_ _not__specified_ _in_ _any_ _standard_ _at_ _all_.Our holding that the burden of pleading and proving alternative measuresproperly rests on the Secretary is founded on the due process conceptthat the employer should have fair notice of exactly what the Secretaryalleges the employer should have done. It is manifestly unfair torequire the employer to be prepared to prove the unavailability of allpossible alternative measures that could be suggested by the Secretary’switnesses at trial. It seems to me that if due process principles ofnotice and fairness preclude the imposition of _ad hoc_ alternativemeasures at trial, those same principles preclude the imposition of _adhoc_ alternative measures–_i.e_., measures not required by a standardor recognized under the general duty clause–at any time. That themajority will now require the Secretary to apprise the employer of these_ad hoc_ alternative measures in advance of trial does not change thefact that the employer may still be held in violation of the Act for nottaking measures that are not called for in the standards promulgatedunder section 5(a)(2) or under the general duty clause, section 5(a)(1).It goes without saying that the Secretary is solely responsible forwriting standards and regulations to establish an employer’s complianceduties. In adopting these standards, the Secretary is required tofollow the rulemaking provisions set forth in section 6 of the Act, 29U.S.C. ? 655. These standards primarily define the employer’s dutyunder section 5(a) of the Act, for it is only when no standards applythat any employer is required to comply with the Act’s general dutyclause, which requires steps against \”recognized hazards that arecausing or are likely to cause death or serious physical harm . . . . \”Section 5(a)(1), 29 U.S.C. ? 654(a)(1). _See generally_ 29 C.F.R. ?1910.5(f); _Brisk Waterproofing Co._, 73 OSAHRC 30\/E1, BNA OSHC 1263,1973-74 CCH OSHD ? 16,345 (No. 1046, 1973).Section 5(a) reflects a scheme of regulation intended to define andlimit the duties of employers. In adopting subsection 5(a)(2), Congressrejected the Walsh-Healey Act’s general criterion of \”unsanitary orhazardous or dangerous\” and made standards the primary focus of anemployer’s duty. _American Can Co_., 82 OSAHRC 5\/A2, 10 BNA OSHC 1305,1312, 1982 CCH OSHD ? 25,899, p. 32,415 (No. 76-5162, 1982). AlthoughCongress stated a general duty in subsection 5(a)(1), it intended thatthat provision operate only when a standard did not. Congress alsomade the general duty clause more limited than the Walsh-Healey Act’sgeneral criterion, for it limited the employer’s duty to avoiding only\”recognized\” hazards that are \”causing or likely to cause death orserious physical harm,\” and to taking feasible steps against them.[[19]]The majority’s \”available alternative protective measures\” doctrine isout of step with this scheme. The measures it requires need not bethose described in the standard found to have been violated, and couldwell be measures that are only specified in inapplicable or pre-emptedstandards, or not required by the standards at all. This effectivelyexpands the compliance duties imposed on employers; they are required tocomply with standards that do not apply or do not exist, or, stateddifferently, with requirements that have not been imposed beforehand bythe Secretary, whose authority it is to establish or modify standards. _See_, _e.g., Lisbon Contractors_, 84 OSAHRC 19\/A2, 11 BNA OSHC 1971,1974, 1984 CCH OSHD ? 26,924, p. 34,500 (No. 80-97, 1984);_Schwarz-Jordant Inc_., 84 OSAHRC ____, 11 BNA OSHD 2145, 2147, 1984 CCHOSHD ? 26,989, p. 34,714 (No. 81-2738, 1984), _rev’d on other grounds_,777 F.2d 195 (5th Cir. 1985). The majority’s view is based on the ideathat if the employer cannot feasibly comply with the applicable standardhe must do \”something.\” The problem with this is that the Secretary’sview of what alternative measures the employer should take may bedifferent from the employer’s. The employer therefore cannot knowwhether the \”something\” he does is sufficient to comply with the Actuntil after he has been cited and the citation litigated.The majority’s holding here still leaves a significant notice problemfor employers. To comport with the due process clause of the FifthAmendment to the Constitution, standards must provide employers withfair notice of their compliance responsibilities. _See_ _Dravo Corp. v.OSHRC_, 613 F.2d 1227, 1232 (3d Cir. 1980), and cases cited therein;_Ryder Truck Lines, Inc. v. Brennan_, 497 F.2d 230, 233 (5th Cir.1974). To assure that employers receive such notice, standards must notbe interpreted to impose duties that their plain meaning does notsupport. _See_ _Diamond Roofing Co. v. OSHRC_, 528 F.2d 645 (5th Cir.1976). Under the majority’s view the duties imposed _ad_ _hoc_ by thealternative measures doctrine may bear no relationship to the plainwords of any cited standard. The employer thus has no fair notice ofwhat it is he must do to be in compliance with the Act until after he iscited for violations.For these reasons, I would not allow the Secretary to impose alternativemeasures that are not required by any standard or are beyond the scopeof the general duty clause.————————————————————————SECRETARY OF LABOR,Complainantv.DUN-PAR ENGINEERED FORM CO.,RespondentOSHRC DOCKET 79-2553(REMAND)_CORRECTED ORDER ON REMAND_Pursuant to the Review Commission’s Remand Order of April 27, 1984, thepenalty assessment made in the Decision of this Administrative Law JudgeNovember 19, 1980, is corrected and amended to $1,000.A total penalty of $1,000 is assessed for serious violation of 29 CFR1926.500(d)(1) and serious violation of 29 CFR 1926.28(a).DATE: May 30, 1984Paul E. Dixon, Judge, OSHRC————————————————————————SECRETARY OF LABOR,Complainant,v.DUN-PAR ENGINEERED FORM CO.,Respondent.OSHRC DOCKET NO. 79-2553_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Commission for review on the issue of whetherthe Administrative Law Judge erred in assessing a penalty of $1620 for aserious violation of 29 C.F.R. ? 1926.500(d)(1) and 29 C.F.R.?1926.28(a), alleged in the alternative. The Respondent, Dun-ParEngineered Form Co., was originally cited by the Secretary of Labor foran alleged repeated violation of the Occupational Safety and Health Actof 1970, 29 U.S.C. ??651-678. The Secretary proposed a penalty of$1620. The judge declined to find the violation repeated, affirminginstead a serious violation of the Act. Section 17(b) of the Act, 29U.S.C. ? 666(b), provides for a maximum civil penalty of $1000 for eachserious violation of the Act.[[1\/]] Dun-Par correctly maintains, andthe Secretary concedes, that the assessed penalty in this case shouldnot have exceeded $1000. Accordingly, that portion of the judge’s orderassessing a penalty of $1620 for the serious violation affirmed inCitation No. 1 is vacated. The case is remanded to the AdministrativeLaw Judge for the assessment of an appropriate penalty for this violation.FOR THE COMMISSIONEXECUTIVE SECRETARYDated: April 27, 1984ROWLAND, Chairman, Dissenting:While I agree with the majority that the judge erred as a matter of lawin assessing a penalty in excess of that permitted under the Act for aserious violation, I dissent from its decision to remand this matter tothe judge for a penalty assessment. In my view, the majority errs infailing to consider Respondent’s arguments that it did not violate theAct in the first instance.Respondent was alleged to have violated 29 C.F.R. ? 1926.500(d)(1) forfailure to provide perimeter guardrail protection for employees workingon open-sided floors at heights of approximately 38 and 46 feet oralternatively section 1926.28(a) for allowing these employees to workwithout safety belts, lifelines, and lanyards.[[1]] The record, inbrief, shows that Respondent was a subcontractor engaged solely ininstalling and removing formwork for concrete flooring on the worksitein question. The record further shows that Respondent could not haveused guardrails during a substantial portion of its work because suchguardrails would obstruct the formwork. There is also evidence tendingto show that safety belts and some of the other means of protectingemployees suggested by the Secretary’s inspector also could not havebeen used or would have been ineffective to protect employees. Respondent took steps to minimize the exposure of its employees bystructuring the work such that employees spent as little time aspossible at the perimeter and worked from the perimeter toward theinside of the building. Finally, Respondent requested that the generalcontractor install guardrails as soon as conditions would permit,normally when the formwork for a particular floor had been completed.On these facts, the judge affirmed the citation, finding essentiallythat there was some exposure of Respondent’s employees to the unguardedfloor perimeters and that some measures could have been taken for theirprotection. Respondent filed a petition for review, contending that thejudge’s decision is not supported by the facts and is contrary torelevant case law regarding the duty of a subcontractor to protectagainst hazardous conditions which it did not create or control as wellas contrary to case law regarding the requirements of section 1926.28(a)and the duty of the employer when compliance with the specific terms ofa standard is not possible. Respondent also disputed the judge’spenalty assessment.Former Commissioner Barnako filed a direction for review of the judge’sdecision, stating as the only issue for review the propriety of thejudge’s penalty assessment. Despite the fact that Respondent filed abrief on review renewing all of its exceptions to the judge’s decision,the majority only considers the penalty issue. I would not limit reviewto the penalty assessment.The circumstances of this case plainly demonstrate that a penaltyassessment cannot logically be separated from, and considered withoutregard to, the merits of the underlying citation. A penalty assessmentnecessarily implies that a violation has occurred, yet no suchdetermination has been made by the Commission, despite Respondent’sforceful arguments that it did not violate the Act. Moreover, it is wellsettled that a penalty assessment is based upon the size of the businessof the cited employer, the gravity of the violation, the employer’s goodfaith, and the history of previous violations. _J.L. Foti ConstructionCo._, 80 OSAHRC 36\/C10, 8 BNA OSHC 1281, 1980 CCH OSHD ? 24,421 (Nos.76-4429 and 76-5049, 1980). Under these criteria, circumstances such aslimited duration of employee exposure and the efforts made to protectemployees are to be taken into account in assessing an appropriatepenalty. _E.g._, _Connecticut Natural Gas Corp_., 78 OSAHRC 60\/B3, 6BNA OSHC 1796, 1978 CCH OSHD ? 22,874 (No. 13964, 1978); _National Steeland Shipbuilding Co_., 78 OSAHRC 48\/A2, 6 BNA OSHC 1680, 1978 CCH OSHD ?22,808 (Nos. 11011 and 11769, 1978), _aff’d_, 607 F.2d 311 (9th Cir.1979). In this case, however, Respondent also defends against thecitation itself by referring to its efforts to limit employee exposureand otherwise to protect its employees. It argues that such matters arerelevant to determining the scope of the employer’s duty. Thus,application of the penalty assessment criteria here necessarily willrequire consideration of factual matters and contentions integrallyrelated to the merits of the citation itself.By refusing to include the merits within the scope of its review, themajority in effect fragments this case despite the fact that modernjudicial practice encourages the prompt disposition of all claimspresented. Thus, the Federal Rules of Civil Procedure warrant thebroadest possible scope of action consistent with fairness to theparties; joinder of claims and remedies is strongly encouraged. _UnitedMine Workers v. Gibbs_, 383 U.S. 715, 724 (1966). The tribunal havingjurisdiction over the parties should dispose in one proceeding of allrelated grievances between the parties. _Price v. Williams_, 393 F.2d348 (D.C. Cir. 1968); _Rolls-Royce, Ltd. v. United States_, 364 F.2d 415(Ct. Cl. 1966).In this regard, I note that although section 10 of the Act, 29 U.S.C. ?659, allows an employer to contest either a citation or notification ofproposed penalty,[[2]] Commission precedent is that a notice of contestfiled by an employer limited to the penalty will nevertheless beconstrued to include a contest of the citation as well if the employersubsequently indicates that its intent was also to challenge thecitation. _State Home Improvement Co_., 77 OSAHRC 216\/A2, 6 BNA OSHC1249, 1977-78 CCH OSHD ? 22,435 (No. 14098, 1977); _Turnbull MillworkCo_., 75 OSAHRC 16\/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD ? 20,221 (No.7413, 1975). This precedent implicitly recognizes that normally it isinappropriate to limit consideration only to the amount of a penaltyassessment when a challenge to the underlying citation itself isproperly brought before the Commission. In view of the closerelationship between penalty assessment and determination of a violationhere, the majority errs in denying Respondent the right to be heard onall of its exceptions to the judge’s decision.————————————————————————SECRETARY OF LABOR,Complainantv.DUN-PAR ENGINEERED FORM CO.,RespondentOSHRC DOCKET 79-2553APPEARING ON BEHALF OF COMPLAINANT:ROCHELLE G. STERN, ESQ., and EUGENE F. DeSHAZO, ESQ., U. S. Departmentof Labor, Office of the SolicitorAPPEARING ON BEHALF Of RESPONDENT:WILLIAM E. SIMMONS, ESQ.THOMAS M. MOORE, ESQ.Hearing held March 20, 1980, U. S. Court of Appeals Courtroom, KansasCity, Missouri, Judge Paul E. Dixon presiding._STATEMENT OF THE CASE_This is a proceeding pursuant to section 10 of the Occupational Safetyand Health Act of 1970, contesting a citation issued by the complainantagainst the respondent under the authority vested in the complainant bysection 9(a) of the Act. The citation alleged that an inspection of aworkplace under the operation and control of the respondent revealedexistence of conditions that violated section 5(a)(2) of the Act, forthe reason that these conditions failed to comply with certainoccupational safety and health standards promulgated by the Secretary ofLabor pursuant to section 6 thereof.A citation for repeat violation, consisting of one item, and a citationfor other violation, consisting of one item, were issued on May 10,1979, as a result of an inspection made on May 3, 1979, of respondent’sworksite at Kansas City and St. Louis Avenues, Excelsior Springs,Missouri, where respondent was engaged in work as a subcontractor,erecting and tearing down concrete forms.Respondent duly contested the citation and proposed penalty, and uponfiling of the complaint and answer by the respondent the cause was at issue._CITATION 1__Alleged Repeat Violation__Item 1_\”29 CFR 1926.500(d)(1): Open-sided floors or platforms, 6 feet or moreabove adjacent floor or ground level, were not guarded by a standardrailing or the equivalent on all open sides:a) 5th and 6th floors of building, 38 feet3 inches and 46 feet 9 inches, respectively -No perimeter protection provided.\”An abatement date of May 15, 1979, was established, along with aproposed penalty of $1,620._The Standard_\”1926.500–Guardrails, Handrails, and Covers(d) Guarding of open-sided floors, platforms, and runways(1) Every opensided floor or platform 6 feet or more above adjacentfloor or ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(i) of this section, on allopen sides, except where there is entrance to a ramp, stairway, or fixedladder. The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials couldcreate a hazard.\”_CITATION 2__Alleged Other Violation__Item 1_\”29 CFR 1926.450(a)(9): The side rails of ladder(s) did not extend morethan 36 inches above landing(s):a) Access ladder to 6th floor – Eight (8) foot step ladder even with 6thfloor level.\”An abatement date of May 15, 1979, was established, with a proposedpenalty of $0._The Standard_\”1926.450–Ladders(a) General requirements(9) The side rails shall extend not less than 36 inches above thelanding. When this is not practical, grab rails, which provide a securegrip for an employee moving to or from the point of access, shall beinstalled.\”The complainant, through its complaint, alleged in the alternative thatrespondent was in violation of the standard published at 29 CFR1926.28(a) and plead the violation to assert it as a serious violation.\”1926.28–Personal Protective Equipment(a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.\”At the commencement of the proceeding, complainant moved to add anallegation to his complaint alleging violation of 29 CFR 1926.450(a)(9),which had been originally charged in the citation and which complainantomitted from its complaint based on the belief that respondent hadfailed to deny the allegation in its notice of contest.Respondent argued against the addition of the allegation tocomplainant’s complaint. The Judge reserved ruling on the basis of thefile record, wherein be found that the notice of contest and answercontained an apparent general denial as to all allegations made by thecomplainant. The Judge now rules that the amendment was appropriate, inthat respondent was put on notice by the original citation 2 issued bythe complainant, and that the complainant’s failure to include thecharge in its complaint was based on either a misunderstanding ofrespondent’s position or carelessness in preparation, and thatrespondent did not demonstrate any substantial or material prejudice bythe complainant’s failure to plead the allegation in his original complaint._THE EVIDENCE_Dun-Par is a corporation that has its principal office and place ofbusiness located at 9808 East 87th Street, Raytown, Missouri. On May 3,1979, Dun-Par maintained a construction jobsite on a high-rise buildingat Kansas City and St. Louis Avenues in Excelsior Springs, Missouri. Onthat construction project, Dun-Par was one of five or six differentemployers working on the jobsite on May 3, 1979, the date the complianceofficer inspected the project.Dun-Par is a specialty subcontractor, which erects the forms forreinforced concrete decks. The two principals of the company have sixtyyears of construction experience between them, with the last 22 years inthis specialized forming business. Since its inception and up until thetime of May 3, 1979, Dun-Par had successfully formed 25 million squarefeet of reinforced concrete service and completed over 500 projects inMissouri, Kansas, Colorado, Iowa, Wyoming, Oklahoma, Texas and Louisiana.Respondent’s method of forming for concrete pours consisted of using16-foot dimension timber to form for the concrete decks of the high-risebuilding. The vertical shores were 4 by 4’s with ellis clamps holdingtwo 4 by 4’s together. The forms were erected on a horizontal 4 by 6ledger tacked on top of a 4 by 4, which was raised with another 4 by 4,then being slipped under the other end of the 4 by 6 ledger.Sixteen feet over from the two 4 by 4’s supporting the 4 by 6 ledger,two additional shores supporting a ledger were raised and a horizontal 4by 4 runner was intact between the two ledgers to tie all the shores andledgers together. Intermediate 4 by 6’s and 4 by 4’s were then raisedand affixed to the framework with X-bracing as a stabilizer being nailedto the vertical supports.When completed, a gridwork form was erected for plywood to be nailed onthe top so that the concrete could be poured for the next floor. Theforming process for one floor, such as the seventh floor, could not bebegun by Dun-Par until the concrete for the floor below, the sixthfloor, was completely cured, and then the forms on the sixth floorstripped or wrecked out. The form work was started at one end of thebuilding, and employees worked across the building bringing twoperimeters of the floor down the building at the same time.The job in question consisted of a proposed construction of a building11 stories high, plus the roof.The vertical shores on the perimeter of the building leaned outward atan angle, so that a 4-foot wide walkway around the floor above could beerected.These vertical shores angled outward, extending beyond the perimeteredge of the building, and are called leaners.The perimeter horizontal 4 by 6 ledger on top of the leaners wasapproximately 10 inches to 14 inches outside of the perimeter of thedeck being worked from, as it was angled outward from the floorhorizontally 1 foot for each 8 feet of vertical height.It is respondent’s contention that it was not possible for perimeterguardrails to be erected to protect the perimeter edge of the floorbeing worked from by respondent’s employees because of the way theleaners angled outward. The leaners could not have been erected if aperimeter guardrail was in place.On top of the workform itself, it was not possible to erect a guardrailuntil the plywood was nailed onto the shoring, because there was nothingto which a guardrail could be attached until the plywood was nailed down.After Dun-Par’s employees had nailed the plywood to the top of the formwork, respondent’s employees’ work on the floor to be formed ceased, andrespondent’s employees left the construction project, because there wasno more work for respondent’s employees until the concrete had beenpoured and cured and it was time to strip or wreck the preceding floorand set up forming for the next floor.It was respondent’s president’s testimony that on the day of theinspection on the fifth floor respondent’s employees were stripping theform work, which had been erected so that the concrete of the sixthfloor level could be poured. To strip the form work, a 16-foot squaresection in the middle of the floor was first stripped so that therewould be an open area in which other material being stripped on thefloor could be stacked. When the material on the floor was dropped,employees first pulled it back to the middle 16-foot square section todisassemble the form work and then to stack it.To strip the form work, the intermediate vertical shores supporting thehorizontal ledgers were removed, leaving only the end 4 by 4 shores tosupport the ledgers. One of the end 4 by 4’s was then jerked out fromunderneath two 4 by 6 ledgers and an entire 16-foot section of form workwas then dropped to the floor where employees pulled it to the centersection, disassembled it and stacked it. The vertical shores were onlywedged in place, and were thus loose and reasonably easy to pull down ina controlled manner.Instructions were given to respondent’s employees that when stripping towork toward the interior of the floor, because the perimeter of thefloor is dangerous, and to avoid working near the perimeter as much aspossible.Employees of respondent never worked toward the perimeter of the floorwhen in close proximity to it; instead, they always work towards theinside of the building by standing, as instructed, further away from theperimeters of the floor and the vertical floor being pulled out.If guardrails were in place at the time of the stripping operation theywould be broken when the forms were pulled out.After the entire stripping operation on a floor is completed,respondent’s employees are not on that floor again, as they either leavethe area to go to another job or another area of the project to work.It was the deposition testimony of respondent’s witness engineer DonMarvin, with an extensive background in commercial and industrialconstruction, that it was not normal and customary in respondent’sforming work for guardrails or other equivalent barriers to be in placeon the floors from which respondent’s employees, or employees of otherspecialty contractors doing identical work, were erecting their formwork, because it is impossible for the leaners to be erected. Ifperimeter guarding of any kind is present on those floors, it becomesnecessary for employees to work outside the perimeter of guarding tostrip the form work, and results in the perimeter guarding gettingsmashed by the forms being stripped.Compliance officer Carl Kinney, with some 20 years experience inconstruction and related fields, conducted his inspection on May 3,1978, of respondent’s work activities at a jobsite located at KansasCity Street and St. Louis Street in Excelsior Springs, Missouri, whererespondent was operating as a subcontractor for the general contractorV. C. DeCarlo.At the time of the inspection, the fifth and sixth floors of a buildingwere under construction, with no perimeter guardrails at the fifth andsixth floor level. Kinney also noted that at the fifth floor levelthere was an 8-foot step ladder gaining access to the sixth floor fromthe fifth floor which did not extend above the floor level 36 inches.Kinney, during the course of his inspection, was accompanied byrespondent’s foremen Parkin and from Parkin and interviews with threeemployees determined that there was a total of eight employees at thejobsite.After observing respondent’s employees working the fifth floor, Kinneywent to the sixth floor where he did not observe any of respondent’semployees performing work at the time of his inspection.Kinney could not state with certainty whether respondent’s work activityconsisted of placing or wrecking out forms at the time of the inspection.Kinney identified photograph C-3 an having been taken on the sixthfloor, showing no perimeter guarding. Exhibit C-4 was again on thesixth floor taken to the northeast, depicting no perimeter guarding. Exhibit C-5 was identified as a view from the ground up on the east sideof the building showing the fifth and sixth floors without perimeterguarding, with guardrails being built on the third and fourth floorlevel. It also depicted a 4-foot outrigger platform that extended outfrom the fifth floor used to hoist materials raised by crane which didnot have any guardrails. The platform is connected to one of thepermanent parts of the building and also serves as catch platform formaterial as it comes down. Photograph C-6 was identified as depictingthe same outrigger platform extending out from the fifth floor from adifferent angle.Exhibit C-7 was described by Kinney as not relating to respondent, butrather showed that the general contractor had started putting upguardrails on the fourth floor level.Photograph C-8 was described by Kinney as representing the ground levelshowing debris and 4 by 4’s, things that people would fall on if theyfell off the edge of the building.Kinney made no measurements from the fifth to the sixth floor, but thedistances he obtained were from the general contractor’s blueprints.Kinney determined that from the first to the second floor level was 12feet, 6 1\/2 inches, with the other floors as 8 feet, 6 1\/2 inches, fromfloor to floor.From the fifth floor level to the ground was 38 feet, 6 inches; from thesixth floor level to the ground was 46 feet, 3 inches.Kinney observed forms set for the pouring of concrete, and also observedshores out on the platform in the course of his inspection.He also observed employees on the fifth floor that would have access tothe unguarded edge of the floor.Kinney’s inspection was prompted by a complaint that a cement finisherhad slipped from the sixth floor, however, was able to catch a shore onhis way down and was not injured.During the course of Kinney’s walkaround he had occasion to speak torespondent’s foreman Parkin, its employees Ron Fisher, Rubin Sendejasand employee Wright.Kinney was of the opinion that based upon his experience inconstruction, appropriate abatement would have been guardrails orperimeter guarding, and that it was feasible to construct them at thejobsite.Kinney further testified as to his observation that no employees werewearing any other type of personal protective equipment.Kinney was of the opinion that a fall from either 38 or 46 feet wouldresult in multiple fractures and probable death.Kinney further testified that he recommended that a repeated citation beissued respondent based upon a prior citation issued respondent for aviolation of 29 CFR 1926.500(d)(1), involving two employees working atthe edge of a floor (roof) above the fourth floor level where there wereunguarded opensided floors with a drop of approximately 48 feet toground level.The citation was identified as Exhibit C-2, in which the proposedpenalty had been paid.Regarding the current citation, Kinney testified that taking intoconsideration the size, history and good faith of respondent he arrivedat a proposed penalty of $1,620.Kinney also testified as to his other-than-serious citation 2, basedupon a stepladder which did not extend above the sixth floor level 36inches, it being his observation that the stepladder was the only accessto the sixth floor, and that there was evidence of forming work beingperformed on the sixth floor, although he did not observe any ofrespondent’s employees utilizing the ladder.It was Kinney’s observation that because the sixth floor level hadcolumns extending out of it with no roofing material and had stairwellsextending up to the level that it was a floor and not a roof, along withthe assertion of respondent’s representative that the total constructionwas going to consist of 11 stories.From Kinney’s questioning of the foreman and the three employees aboutpersonal protective equipment consisting of safety belts, he was advisedthat their use was impractical.While Kinney did not see any of respondent’s employees working near theperimeter during the inspection, he was of the opinion that theemployees had access to the perimeter of level five. He was advised byrespondent’s foreman at the opening conference that there were employeesof respondent working both fifth and sixth levels. Kinney’s personalobservation was that there were shores and forming work on level six andevidence of respondent’s employees wrecking out level five on thenortheast corner. It was Kinney’s opinion that if it were impossible toerect guardrails, due to the respondent’s allegation that there wasnothing to attach guardrails to, that other alternative means could beused to protect respondent’s employees, such as lanyards, outriggerswith nets, catch platforms, or the use of a cable strung around theperimeter between the angled outermost vertical shores and the concreteor steel columns along the perimeter.Generally, on respondent’s work project, materials used in the formingoperation are stacked on a platform extending out from the edge of thebuilding (Exhibit C-5). When respondent’s employees check for shoringthat might be slipping or forming that might be sagging, employees mustwork near the edge of the platform.Respondent’s president acknowledged that respondent’s work is the mostdangerous job on the construction project, and respondent has a twice ayear review of its safety program with its foremen as to how things areperformed, new regulations and individual conversations with the variousforemen, who in turn have regular toolbox meetings on the jobsite, andhold discussions on safety.In addition, respondent has a policy of not putting its new men onperimeter shores, but allowing them to gain experience working witholder men, with the additional policy of having the foreman work up fromthe ranks with at least five years experience. Respondent estimates that90 percent of its employees are regular employees. Respondent maintainsthat it has had no deaths from falling from unguarded perimeters since1958, nor any major injuries.Respondent does not compute the guardrails in its bids on contracts,stating that it was industry practice that the general contractorprovided guardrails. In addition, respondent’s president acknowledgedit did not wish to erect guardrails because there were so many requiredthroughout the whole depth of a job.Respondent’s president denied that erecting netting, as suggested bycompliance officer Kinney, was possible, although he gave no reasonstherefor.Respondent employs a fulltime safety officer, who is a professionallyregistered engineer in Missouri, who inspects the jobs for conformingwith regulations and setting up respondent’s safety program, previouslydescribed, along with sending its employees to construction industrysafety programs and its foreman to OSHA schools put on by the builder’sassociation. Respondent also maintains safety belts for use of itsemployees where practical.Respondent’s president Dunn testified with respect to the outerperimeter of vertical shores, which are installed on an angle, notingthat at a height of approximately 3 1\/2 feet from floor level there is aspace of approximately 3 1\/2 inches between the column and the shore.It was Dunn’s testimony that respondent could not string cable throughthe space, for the reason that it would prevent work activity and itsemployees would have to work outside of the cable.Dunn reiterated that respondent could not put up a guardrail, even onthe walkway that is erected following the completion of the shoring, asit would be the responsibility of the general contractor who would putthe edge form around the building, and along with various othersubcontractor work, such as the steel erectors placing reinforcingsteel, mechanical people setting ducts and chases for mechanical workand electrical people.Dunn denied ever having seen any outrigger nets, and would not know howthey could be connected to permanent parts of the structure.Dunn was of the opinion that the installation of a cable around theperimeter would make the job of erecting vertical shoring more hazardousto his employees.Dunn was referenced to a fatality that happened after the currentcitation in Hutchinson, Kansas, where a man was killed falling from theperimeter of a job on which respondent was doing the forming.After the OSHA investigation, guardrails were installed around theperimeter, but Dunn was not personally knowledgeable about theguardrails, although he subsequently testified that at the jobsite wherethe fatality occurred, in the interest of completing the job, respondentput the guardrails on the roof, which was the final floor.By posthearing deposition, Don Marvin, a graduate civil engineer,testified on behalf of respondent.With reference to the cited jobsite, namely the Colony Plaza apartmentproject, Marvin identified DeCarlo as the general contractor, with thearrangements at the time of the contract being that DeCarlo was requiredto construct the edge forms or spandrel beams and not the respondent.The installation of handrails and guardrails were to be the generalcontractor’s responsibility, as it was Marvin’s opinion that they wouldonly protect DeCarlo’s carpenters, laborers, cement finishers,electricians, plumbers and rebar installers.Marvin was also of the opinion that when the perimeter shores wherekicked out they would destroy or knock out any guardrails that wouldhave been erected.Marvin characterized the Excelsior Springs job as a typical forming jobdone by respondent. He verified that respondent had no cost forhandrails or guardrails considered in its bid to DeCarlo.It was his opinion that based on his work on 20 high-rise projects, itwas not possible to erect handrails or guardrails around the perimeter,although he felt it was possible to string cable between the outershores, but that the workmen would have to work outside of the cable,with respect to the perimeter vertical shores.To his personal knowledge, he was not aware if DeCarlo ever did in facterect guardrails on levels five and six of the Colony Plaza project.He further supported respondent’s position that respondent could notconstruct guardrails or handrails until the plywood forming wasconcluded, in that there was nothing to attach the guardrails to, andfurther that once the plywood was down the Dun-Par employees would befinished and would move on vacating the premises for the other trades.Posthearing testimony of Rubin Sendejas, a carpenter who has beenemployed by respondent on different occasions, developed that Sendejashad been employed as a carpenter on the Excelsior Springs project at thetime of the inspection, giving rise to the citation.It was his recollection that he worked on both the fifth and sixthlevels of the building under construction, and testified that wheneverhis duties required he had to work on the edge of the building.There are times he would not work on the edge of the building, and atother times he might work on the edge of the building for maybe ahalf-an-hour or 15 minutes.Sendejas explained that on every job for every company he had worked forhis duties would require him to work near the edge of the perimeter inputting up the next level. On the Excelsior Springs job, it wasSendejas’ testimony that there were cables at times around the perimeterof the job, and on the day of the inspection the cables were probablylaying on the ground.Sendejas was interviewed by the compliance officer, who prepared astatement for him to sign, which was identified as Exhibit C-9.On the day of the inspection, he wasn’t given any particularinstructions; however, when he started for respondent he was shown thetype of work he was to do and how to do it, the instructions being givento him by his foreman.Sendejas described his interview by the compliance officer as takingplace on October 3, 1979, at which time questions were on a sheet whichwere asked of him and thereafter signed by Sendejas.Sendejas was somewhat ambivalent about his statement on the one hand,stating that it was not completely and totally accurate, and on theother hand stating, \”I wrote down the answers, I read them, and it waspretty much what I said so I signed the paper.\”Following Sendejas’ interview by compliance officer, he was thenrequired to answer questions by his boss and superintendent.Sendejas described the respondent’s forming work as essentially the sameas done by other companies that he has worked for. During his time ofemployment by respondent he never knew of anyone getting hurt.It is respondent’s practice to take a new and untrained or inexperiencedemployee and have him work with more experienced employees or an olderperson or journeyman to be trained.Sendejas has never been denied use of a safety belt by respondent;however, Sendejas expressed the opinion that safety belts were toocumbersome for the type of work he does as a carpenter. He noted thathe carries approximately 25 pounds of tools, bags and nails, which alongwith the safety belt and having to climb up and down ladders results inthe safety belt getting in the way, along with creating a tripping problem.Sendejas described the vertical shores at the perimeter of the floor as\”leaners\”, which are erected at an angle in order to afford an area forpeople on the upper level to walk upon to put the edge forms on that level.It was Sendejas’ opinion that it is not possible to work on theperimeter erecting shoring and to have a guardrail. Further, that acable is in the way of leaning something out past the edge or perimeterof the level.Sendejas also ventured the opinion that until platforming is laid on thefloor and before the concrete is poured there is nothing to attach aguardrail to, and that once the platform is laid the job is finished andthe guardrail would be of no benefit to respondent’s employee._DISCUSSION_The instant case involving respondent strongly parallels in manyrespects the decision issued by the Review Commission approximately amonth and a day preceding this hearing; _Secretary v. Dun-Par EngineeredForm Company_, Docket 16062, February 21, 1980, CCH OSHD ? 21,069 (onappeal, May 1980, 10th Circuit, Court of Appeals, Docket 80-1401).This matter will be treated in order of the defenses advanced byrespondent in its brief.Respondent alleges that it did not violate the standard published at 29CFR 1926.500(d)(1), on the basis that there were no employees on thesixth floor.Respondent relies heavily upon the compliance officer’s lack ofobservation of employees performing work at the sixth floor level of theconstruction site.The defense cannot stand on the basis of the record evidence; namely,evidence of work having been performed on the sixth floor level,admissions by respondent’s foreman Parkin to the compliance officersthat employees were working on the fifth and sixth levels and depositiontestimony of respondent’s employee Sendejas that he had worked not onlythe fifth and sixth floor levels, but he also worked at the perimeter.The fact that there was no perimeter guarding is apparent bydemonstrative evidence introduced by the compliance officer consistingof photographs, along with his personal observation of no perimeterguarding, and in particular, the testimony of respondent’s managingofficer that guardrails were not bid in his dealings with the generalcontractor, nor were they contemplated, and further that respondent didnot wish to erect guardrails on this particular project.Respondent relies heavily upon an argument of impossibility ofcompliance, drifting back and forth between work which has to be donewithin the perimeter and work which has to be done without the perimeterin the establishment of leaners to support a walking surface at the nextlevel being erected. In sequential fashion, respondent alleges it couldnot establish guardrails at the various levels until such time asplywood work was completed for the pouring of concrete, at which timeguardrails would be of no benefit to its employees, that outriggers ornets could not be used without giving the reason therefor, and thatcable was used at times with the necessity of employees to work outsideof the cable. No argument was raised as to the compliance officer’ssuggestion that it would be possible to establish catch platforms toafford the necessary protection.From a viewing of the testimony and the actual demonstrative evidence,it must be concluded that little credibility can be accorded to thisentire defense of impracticability of attachment of a guardrail. Photographic evidence clearly demonstrates the existence of a sturdyoutrigger, which according to the testimony and evidence of record isused to support the heavy weight of 16 by 4 by 4 shores, both in theestablishment of forms and in the wrecking out of forms to a structuralmember of the building to serve as access to the work area.It is concluded by this Writer that the construction industry is not soprimitive a trade as to be able to erect a substantial outriggerappendage to a structural member of a floor being worked, and at thesame time cannot erect a guardrail to the same building member.Clearly the erection and maintenance of this outrigger for work activitywithin the perimeter is supportive of the compliance officer’s testimonythat outriggers could be established with netting or catch platform withguardrails to afford the exposed employees the protection in lieu of aguardrail.The exposure of employees was clearly demonstrated by the testimony ofSendejas of the necessity of working the perimeter to set up the leanersand further testimony that it was necessary to be at the perimeter tocheck for sagging during the concrete pour.The hazard was a serious one, in that a fall from the perimeter would befrom a distance of 38 feet, 3 inches, from the fifth floor and 46 feetfrom the ninth floor, and would certainly result in multiple fracturesor death. Respondent’s contention of impossibility of compliance istherefore rejected.Respondent’s third line of defense is the subcontractor defense,claiming that respondent is a noncreating noncontrolling subcontractoron a multi-employer jobsite who expended reasonable efforts and tookrealistic measures to protect its employees from a condition for whichthe general contractor was responsible. _Citing Secretary v.Anning-Johnson Co._, Docket 3694\/4409, 76 OSHRC 54\/A2; BNA 4 OSHC 1193;CCH OSHD ? 20,690, and _Secretary v. Grossman Steel & AluminumCorporation_, Docket 12775, 76 OSHRC 54\/D9; BNA 4 OSHC 1185; CCH OSHD ?20,691.Having rejected respondent’s contention of impossibility of performance,it is clearly demonstrated by the evidence of record that during theinstallation and stripping out of the shores that respondent’s employeeswere exposed to and had access to the perimeter of the open-sided floorsand the hazard of falling from 38 to 46 feet. So too, as was found inthe price case, respondent had the sole responsibility for constructingthe form work, and its employees were exposed to the hazard. Respondent, through its on-site foreman and its managing officer’spolicy, was aware there was no perimeter protection on the fifth andsixth floor levels. Nor, did respondent demonstrate, other than itsover-all safety program, which is meritorious, that it made anyreasonable efforts to abate the violation.It must be noted that respondent, through its previous citationintroduced into the record and commentary in the decision of _Secretaryv. Dun-Par Engineered Form Company_, _supra_., that it was the subjectof perimeter guarding charges on prior occasions and evidenced throughits testimony and knowledge of the requirements of perimeter guarding.Therefore, the _Anning-Johnson\/Grossman_, _supra_., defense is rejected.Respondent’s argument against the amendment of the citation by thealternative allegation of serious violation of 29 CFR 1926.28(a) is alsorejected.The pleading of the alternative violation of this particular standard isno more than buttressing another modality of protection for employeesexposed to perimeter work, as described by the compliance officer.The evidence is clear and unequivocal that the respondent’s employees donot spend all of their time climbing ladders and performing dutieswithin the framework of the forming. In fact, it is quite specific thata lesser amount of time is performed on the perimeter work. For thoselesser periods of time that employees would be performing perimeter workthe utilization of a safety belt would afford the necessary fallprotection from either 38 feet or 46 feet.With respect to respondent’s argument as to the issue of \”feasibility\”and its extensive case citation, the Review Commission has clearlystated the complainant’s requirements under an allegation of 29 CFR1926.28(a); _Secretary v. S & H Riggers & Erectors_, _Inc_., Docket15855, 79 OSHRC 23\/A2; BNA 7 OSHC 1260; CCH OSHD ? 21,261, 23,480:\”Nonetheless, the standard in this case is written in broad terms. Therefore, it is appropriate to place upon the Secretary the burden ofestablishing employee exposure to a hazardous condition requiring theuse of personal protective equipment and identifying the appropriateform of personal protective equipment to eliminate the hazard. To theextent that prior Commission decisions have broadened that burden andrequire the Secretary to also affirmatively establish the feasibilityand likely utility of the recommended form of personal protectiveequipment, they are overruled.\”Respondent’s argument as to its nonviolation of 29 CFR 1926.450(a)(9),and its reasons given therefor, were also rejected.The exceptions that respondent takes to complainant’s pleading of theutilization of a stepladder for access from level five to level sixreferenced an entirely different portion of subpart (1) of 29 CFR1926.450, wherein the alleged violative standard is contained in thegeneral requirements, which include both metal and wooden ladders, andthe distinction made by respondent is inapplicable.The evidence as previously stated of the testimony of carpenter Sendejasand the foreman’s admissions of work being performed on levels five andsix, and with the stepladder being the only modality of access to thesixth level, a violation has been established in that the ladder did notextend 36 inches above the sixth level landing._NATURE OF THE VIOLATION_Complainant alleges respondent in the repeated violation of 29 CFR1926.500(d)(1), and in support of its charges relies upon the citationof July 21, 1975, which refers to, \”Two employees working at the edge ofthe floor (roof) above the fourth floor level…\”, with some dichotomytaking place at the hearing regarding the sixth floor level ofrespondent’s project in Excelsior Springs. It is determined that underno form of semantical conjugation can respondent’s work at the ExcelsiorSprings job constitute work on a roof level. The uncontrovertedevidence was that there were supporting columns at the level, stairwellsand that the level was a level in progress of construction, as opposedto a completing level; this, in addition to the uncontroverted evidencethat the project was to be an 11 or 12-story project in accordance withits plans and specifications.Therefore, in order to establish a repeat violation, it is necessary forthe complainant to show that at the time of the alleged repeat violationthere is a Commission final order against the employer for asubstantially similar violation.While much detailed testimony was given as to the construction problemsattendant to the erection of the fifth and sixth floor levels, no suchtestimony was adduced as to what, if anything, would be similar to theconstruction of the roof level, and it is not for the Judge to conjureand speculate as to what the required evidence might be. It is feltthat there was a complete lack of proof of establishment of thenecessary element of a substantially similar violation, particularlywith the long history of the various postures as to what constitutes aroof, and based upon such uncertainty this Writer would be reluctant tofind a repeat violation on the evidence of this record._PENALTY_Taking into account the statutory consideration for penalty, it is notedthat respondent is of moderate size, has an excellent history, and hasan on-going safety program involving both its supervisory and hourlyworkers, and maintains an experienced work force of carpenters. Howevermitigating these circumstances are, it is also clearly demonstrated thatrespondent has a stated reluctance to establish guardrails and a statedhistory of exposing its employees to unguarded perimeters. Therefore,it is felt that respondent’s posture regarding guardrails for itsemployees erecting or stripping out shores overcomes any considerationof mitigation and that the proposed penalty of $1,620 should be affirmed._FINDINGS OF FACT_Based upon the preponderance of the credible evidence, the followingfindings of fact are made:1. Respondent, Dun-Par Engineered Form Company, is a corporation with aprincipal office and place of business at 9808 East 87th Street,Raytown, Missouri; and, at all times mentioned was engaged in concreteform contracting.2. Respondent employed approximately eight employees at itsconstruction site at Excelsior Springs, Missouri, as alleged by thecomplainant’s complaint and admitted by respondent’s answer.3. As the result of an inspection by an authorized representative ofthe complainant, respondent was issued a citation for repeatedviolation, together with a notification of proposed penalty and acitation for other-than-serious violation pursuant to section 9(a) ofthe Act.4. The citations and proposed penalty were received by respondent onMay 11, 1979. On May 16, 1979, the Area Director received fromrespondent a notice to contest the citation and proposed penaltypursuant to section 10(c) of the Act. This notice was duly transmittedto the Occupational Safety and Health Review Commission. Thecomplainant alleged in his complaint that the citation alleging aviolation of 29 CFR 1926.450(a)(9) had become a final order of theCommission since the notice of contest did not address that violation. The respondent’s answer denied the allegation, and the complainant movedto amend the complaint to include the violation of 29 CFR 1926.450(a)(9)at the hearing over respondent’s objection, which was overruled.5. Evidence was received establishing the violation of 29 CFR1926.450(a)(9).6. Respondent was issued a prior citation alleging a serious violationof 29 CFR 1926.500(d)(1) on July 21, 1975, with reference to work beingperformed at the edge of a roof with lack of guarding.7. Respondent did not contest the citation and notification of proposedpenalty, and it became a final order of the Commission by operation of law.8. On the day of the current inspection, compliance officer Kinneyobserved respondent’s employees working on the fifth floor of thebuilding under construction.9. Compliance officer Kinney was advised by respondent’s foreman thatwork had been performed on both the fifth and sixth floor levels of saidbuilding; that during the course of their work in placing shoring forconcrete employees of respondent were required to perform some of theirwork near the edge of the fifth and sixth floor perimeters.10. The distance to the ground from the fifth floor level wasapproximately 38 feet, 3 inches, and from the sixth floor 46 feet, 9 inches.11. There was nothing between the fifth and sixth floors to preventrespondent’s employees from falling to the ground level, except for anoutrigger platform extending from the fifth floor level.12. In respondent’s operations materials used on the forming work arestacked near the edge of the work platform or on an outrigger platformattached to a structural member of the building.13. Employees are required to work near the perimeter of the floorlevel in order to check for slipping or sagging forms.14. Guardrails, cables, catch platforms, outriggers and nets, andsafety belts are feasible methods of protecting unguarded perimeters offloors in the shoring operations.15. Respondent’s supervisory personnel was on the jobsite at the timeof the inspection and was aware of the lack of perimeter guarding.16. Respondent’s supervisory personnel was also aware that respondent’semployees were working on the fifth and sixth floors without perimeterguards or other personal protective equipment.17. A fall from either perimeter at a height of 38 feet, 3 inches, or46 feet, 9 inches, exposed respondent’s employees to the hazard ofserious injury or death.18. On the day of the inspection there was a wooden stepladder betweenthe fifth and sixth floor levels, which was the only means of accessfrom the fifth to the sixth floor level.19. The stepladder did not extend 3 feet above the adjoining level, andexposed respondent’s employees to an approximate 8-foot fall, which didnot constitute a serious hazard._CONCLUSIONS OF LAW_1. Respondent is an employer within the meaning of the Act.2. Jurisdiction over the parties and the subject matter herein isconferred upon the Occupational Safety and Health Review Commission bysection 10(c) of the Act, and the citations were issued in accordancewith section 9(a) of the Act.3. Respondent violated section 5(a)(2) of the Act by failing to complywith the Occupational Safety and Health Act of 1970, as alleged in thecitations and complaint, being in violation of 29 CFR 1926.500(d)(1),violation of 29 CFR 1926.450(a)(9), and alternatively the violation of29 CFR 1926.28(a).4. With respect to respondent’s violation of 29 CFR 1926.500(d)(1), itis found that it is a serious violation and not a repeat violation forfailure of proof._ORDER_Based upon the above findings of fact and conclusions of law, it ishereby ORDERED that citation 1 is affirmed for serious violation of 29CFR 1926.500(d)(1) and serious violation of 29 CFR 1926.28(a), andcitation 2, other-than-serious violation of 29 CFR 1926.450(a)(9).A total penalty of $1,620 is assessed for the serious violations. Nopenalty is assessed for the other-than-serious violation of 29 CFR1926.450(a)(9).DATE: November 19, 1980Paul E. Dixon, Judge, OSHRCFOOTNOTES:[[1\/]] That standard provides:Every open-sided floor or platform 6 feet or more above adjacent flooror ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(1)(i) of this section, on allopen sides, except where there is entrance to a ramp, stairway, or fixedladder. The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials couldcreate a hazard.[[2\/]] Because the court’s ruling on this issue is the \”law of thecase,\” I express no views on the matters discussed in Chairman Buckley’sseparate opinion. _See_, _e.g_., _In re Progressive Farmers Ass’n_, 829F.2d 651, 655 (8th Cir. 1987), _cert. denied_ _sub nom_. _South CentralEnterprises, Inc. v. Farrington_, 108 S.Ct. 1574 (1988) (\”law of thecase\” doctrine).[[3\/]] The Commission also concludes that Dun-Par has proven that safetybelts were not a feasible or available alternative to guardrails. Inthe Commission’s prior decision, the Commission said:After weighing the testimony presented at the hearing and consideringthe practical realities of the workplace, we find that the Secretaryfailed to establish that safety belts were feasible. The Secretarypresented no evidence concerning how the safety belts would actually beused at the workplace beyond the compliance officer’s bare claim thatsafety belts were feasible. On the other hand, Dun-Par presentedspecific testimony which established that safety belts were infeasible. Mr. Dunn, who had much more experience with concrete formwork than thecompliance officer, explained the need for Dun-Par workers to movefreely about the work area, often moving up and down ladders.12 BNA OSHC at 1960, 1986-87 CCH OSHD at p. 36,028. Dunn testifiedthat, as a result of this need for mobility, the form crews could nothave stripped the forms while tied off with safety belts. Also, acarpenter on Dun-Par’s form crews on this project, Sendejas, testifiedthat safety belts tied off by lines to secure points would have beencumbersome and would have interfered with the normal work. He testifiedthat they would have created tripping hazards for the wearer and otheremployees working in the area.The evidence on safety belts has been re-evaluated in light of thecourt’s burden of proof. Dun-Par rebutted the suggestion that safetybelts were feasible with specific and credible evidence that provedtheir infeasibility. The essential evidence is that quoted above fromthe Commission’s previous decision. Secretary failed to prove aviolation of ? 1926.28(a) under the court’s criteria. (The Secretaryalleged the ? 1926.28(a) violation in the alternative, based on thefailure to use safety belts.)Perimeter cables would have been subject to many of the same feasibilityconstraints as complete guardrails. However, there was some evidencethat these problems could have been overcome. In light of theCommission’s conclusion that Dun-Par’s defense fails on other grounds,it is unnecessary to decide whether safety cables would have been feasible.[[4\/]] It is unnecessary to consider whether this violation should beclassified as repeated within the meaning of the Act. OSHA originallyclassified this violation as repeated, and thus subject to enhancedpenalties under 29 U.S.C. ? 666(a). However, the judge rejected thatclassification and affirmed only the allegation that the violation wasserious. The proper classification of the violation was not included asan issue in the direction for review, and the Secretary does not ask fora repeated classification on review.[[1]] The standard provides:? 1926.500 Guardrails, handrails and covers.* * *(d) _Guarding of open-sided floors, platforms, and runways_.(1) Every opensided floor or platform 6 feet or more above adjacentfloor or ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(1)(i) of this section, on allopen sides, except where there is entrance to a ramp, stairway, or fixedladder. The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials couldcreate a hazard.[[2]] The standard provides:? 1926.28 _Personal protective equipment_.(a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions and where this part indicates the needfor using such equipment to reduce the hazards to the employees._See_ _L.E. Myers Co_., 86 OSAHRC, 12 BNA OSHC 1609, 1986 CCH OSHD ?27,476 (No. 82-1137, 1986), _pet. for review filed_, No. 86-3215 (6thCir. March 14, 1986).[[3]] A subsidiary question in this case is whether the Commission hasjurisdiction to address the merits of the citation items. After JudgeDixon’s decision, Dun-Par petitioned for review on several issues. However, former Commissioner Barnako directed review on the solequestion of the penalty. The Commission found the penalty assessmentwas in error and remanded the case to Judge Dixon. _Dun-Par EngineeredForm Co_., 84 OSAHRC, 11 BNA OSHC 1912, 1984 CCH OSHD ? 26,883 (No.79-2553, 1984). On remand, the judge lowered the penalty. Dun-Par againpetitioned for review of several issues, not directed for review byformer Commissioner Barnako, including the feasibility of guardrails andsafety belts. The Secretary argues that the Commission cannot reviewthe merits of this citation because the citation items became finalorders of the Commission in 1980, when Dun-Par petitioned for review ofseveral issues, and only the question of the penalty was directed forreview.As the Commission noted in _Hamilton Die Cast, Inc_., 86 OSAHRC, 12 BNAOSHC 1797, 1986 CCH OSHD ? 27,576 (No. 83-308, 1986), when theCommission directs any portion of a case for review, the entire judge’sreport is before the Commission, unless a citation item is specificallysevered and made a final order under Rule 54(b) of the Federal Rules ofCivil Procedure. Therefore, when former Commissioner Barnako directedonly the question of the penalty for review, the item alleging thatDun-Par violated sections 1926.500(d)(1) and 1926.28(a) did not becomethe final order of the Commission. The issues of the feasibility ofguardrails and safety belts could have been addressed in theCommission’s previous decision and are now properly before theCommission on Dun-par’s second petition for review.[[4]] _Donovan v. Williams Enterprises_, 744 F.2d 170, 178 (D.C. Cir.1984); _Faultless Division, Bliss & Laughlin Industries Inc. v_._Secretary of Labor_, 674 F.2d 1177, 1189-90 (7th Cir. 1982); _SouthernColorado Prestress Co. v. OSHRC_, 586 F.2d 1342, 1351 (10th Cir. 1978);_A.E. Burgess Leather Co. v. OSHRC_, 576 F.2d 948, 951-2 (1st Cir.1978). _See_ _also_ _United Steelworkers v_. _Marshall_, 647 F.2d 1189,1270, 1273 (D.C. Cir. 1980); _Diebold, Inc. v. Marshall_, 585 F.2d 1327,1333 (6th Cir. 1978); _Ace_ _Sheeting & Repair Co. v. OSHRC_, 555 F.2d439, 440-1 (5th Cir. 1977).Indeed, it has been noted that, \”[t]o impose on an employer the burdenof proving impossibility is to impose a burden that is unachievable,\”_American Luggage Works_, 10 BNA OSHC at 1686, 1982 CCH OSHD at p.32,798 (Rowland, Chairman, dissenting).[[5]] M. Rothstein, _Occupational Safety and Health Law_ ?125 (2d ed. 1983),[[6]] S. Rep. No. 91-1282, 91st Cong., 2d Sess. 6 (1970), _reprinted inCommittee on Labor & Public Welfare, Legislative History_ _of theOccupational Safety and Health Act of 1970_, 146 (Comm. Print. 1971)(\”However, as a recent Department of Labor study has shown, a largeproportion of the voluntary standards are seriously out-of-date.\”)[[7]] Remarks of D. Peyton, quoted in C. Musacchio, \”The Power PressFlap: Will it Reshape Standards Setting?,\” 35 _Occupational Hazards_107, 108 (Oct. 1973). _See generally_ R. Hamilton, \”The Role ofNongovernmental Standards in the Development of Mandatory FederalStandards Affecting Safety or Health,\” 56 Texas L. Rev. 1329, 1346 n.40, 1350 & n. 52, 1449 (1978) (hereinafter cited as \”Hamilton\”). _Seealso_ M. Rothstein, \”OSHA After Ten Years: A Review and Some ProposedReforms,\” 34 Vanderbilt L. Rev. 71, 73-74 (1981) (\”Most of thedifficulties with national consensus standards can be traced to the factthat they were privately adopted, optional measures. Many … werepoorly drafted, [or] extremely general …. Other[s]. . were advisory,directory, or precatory and were never intended to be given bindingeffect.\”).[[8]] R. Morey, \”Mandatory Occupational Safety and HealthStandards–Some Legal Problems,\” 38 Law & Contemp. Probs. 584, 588(1974) (footnote omitted). _See_ _also_ Hamilton at 1393 (erraticcoverage of private standards because they \”were often not written to bemandatory….\”).[[9]] _E.g_., A. Reis, \”Three Years of OSHA: The View from Within,\” 98Monthly Labor Rev. 35-36 (1975) (\”The consensus standards were notwritten to have the force of law…. The problem faced by OSHA was torevise these standards in a manner that made them suitable forenforcement….\”); R. Moran, \”Occupational Safety and Health Standardsas Federal Law: The Hazards of Haste,\” 15 Wm. & Mary L. Rev. 777, 786(1974) (\”the voluntary nature of ANSI standards often resulted in theiridealization.\”); and F. Barnako, \”Enforcing Job Safety: A ManagerialView,\” 98 Monthly Labor Rev. 36, 37 (1975):… [T]he [ANSI and NFPA] standards were drafted as recommendations foroptimal workplace safety and health without any idea that they would orshould become law. And they were not drafted by industry consensus butfrequently by representatives of selected industries for thoseindustries. … All of industry was not represented on all committees,nor did other industries object to the standards as published becausesuch standards were of no concern to them.[[10]] According to the then managing director of ANSI, \”some 180American National Standards were adopted in Walsh-Healey Public ContractAct Regulations issued by the Secretary of Labor in May 1969.\” _Occupational Safety and Health Act, 1970_: _Hearings on S.2193 andS.2788 Before the Subcomm. on Labor of the Senate Comm. on Labor andPublic Welfare_, 91st Cong., 1st & 2d Sess. 461 (1969-70) (statement ofD. Peyton); _see_ _also_ _id_. at 150-52 (Department of Labor \”adoptedeight or nine [ANSI health] standards, under their Walsh-Healey Act,\”and the bulk of the Walsh-Healey health standards were from anon-consensus organization, the American Conference of GovernmentalIndustrial Hygienists) (statement by M. Key, director of Bureau ofOccupational Safety and Health, Department of Health, Education andWelfare). _See also Bureau of Labor Standards, Dept. of_ _Labor, Statusof Safety Standards_, 4-5 (1968) (Department proposed adoption ofconsensus standards in 1968 under Walsh-Healey Act; adopted them in 1967under Service Contract Act). The Construction Safety Act standards thatappear in the 1972 edition of the Code of Federal Regulationsincorporated 33 ANSI and NFPA standards by reference, while otherstandards, including entire subparts, were lifted with only some changefrom ANSI standards. For example, the standard cited in this case,section 1926.500(d)(1)–originally codified as section 1518.500(d)(1),_see_ 36 Fed. Reg. 25232 (Dec. 30, 1971)–was derived with only minorchanges from ANSI A.12.1–1967, _Safety Requirements for Floor and WallOpenings, Railings, and Toeboards_ ? 5.1, p. 9. This and otherderivations have been noted by the courts of appeals and theCommission. _See_ _Diamond Roofing Co. v. OSHRC_, 528 F.2d 645, 650 &n. 12 (5th Cir. 1976) (nothing derivation of section 1926.500(d)(1));_L.R. Willson & Sons v. OSHRC_, 698 F.2d 507, 515 (D.C. Cir. 1983)(derivation of section 1926.450(a)(5) from ANSI A14.13–1956).[[11]] Indeed, the standard cited and applied in this case has oftengiven rise to the protest by cited employers that necessary work cannotbe done with the guardrails in place. _E.g_., _Robert W. Setterlin &Sons, Co_., 76 OSAHRC 53\/D8, 4 BNA OSHC 1214, 1217, 1975-76 CCH OSHD ?20,682, p. 24,774 (No. 7377, 1976); _Universal Sheet Metal Corp_., 2 BNAOSHC at 1062, 1973-74 CCH OSHD at pp. 22,340-41.[[12]] The Eighth Circuit’s full discussion of the inflexibleapplication of impossibility standard is as follows:While we are mindful of the broad scope and remedial purposes of theOccupational Safety and Health Review Act, we are of the opinion thatsome modicum of reasonableness and common sense is implied. There is apoint at which impracticality of the requirement voids its effectivenessand that point has been reached when to erect an entire wall, a projectsaid to take approximately two hours, petitioner must begin an endlessspiral of tasks consisting of abatement activities which necessitatefurther protective devices, i.e., guardrail to erect wall, scaffold toerect guardrail, safety devices to erect scaffold, etc. We agree withthe dissent that some demarcation line must be drawn between that whichis genuinely aimed at the promotion of safety and health and that which,while directed at such aims, is so imprudent as to be unreasonable.[[13]] 29 C.F.R. ? 1910.20(e)(iii)(b) (access to employee exposure andmedical records); ? 1910.134(a)(1) (respiratory protection); ?1910.268(m)(11)(vi)(A) (telecommunications); ? 1910.1001(d)(1)(ii)(asbestos); ? 1910.1017(f)(1) (vinyl chloride); ? 1910.1018(g)(1)(i)(inorganic arsenic); ? 1910.1025(e)(1)(i) (lead); ? 1910.1029(f)(1)(i)(coke oven emissions); 1910.1043(e)(1) (cotton dust); ? 1910.1044(g)(1)(1, 2 dibromo-3-chloropropane); ? 1910.1045(g)(1)(i) (acrylonitrile);and ? 1910.1047(f)(1)(i) (ethylene oxide).[[14]] _See_ _also_ note 4 _supra_. In exploring the basis for theinfeasibility defense and its predecessor, the impossibility defense, wehave considered whether the availability of procedures for seekingpermanent and temporary variances from the Secretary under sections 6(d)and 6(b)(6)(A) of the Act, 29 U.S.C. ?? 655(d) and (b)(6)(A), shouldlead the Commission to hold that no defense is available at all. Likeour predecessors, we conclude that availability of a variance procedureis of no consequence. It bears emphasis that infeasibility or evendifficulty of compliance is irrelevant in a permanent varianceproceeding. According to section 6(d), the sole criterion is whetherthe means used by the employer \”will provide employment … as safe andhealthful as those which would prevail if he complied with thestandard.\” The unstated premise of the permanent variance procedure isthat the standard was intended to apply and operate literally and thatsome means of providing a safe and healthful workplace do exist. Theentire point of the infeasibility defense is, however, that sometimesthis premise does not obtain–that the standard was not intended toliterally apply or that means of compliance do not exist. As we havesaid, however, the nature of the standards and the structure of the Actrequire that some means be available for addressing those concerns. Finally, the temporary variance is not available once the effective dateof the standard has passed. See section 6(b)(6)(A)(i). As the D.C.Circuit stated when it recognized the infeasibility defense for asection 6(b) standard, \”[t]hese variances are therefore useless to theemployer who claims that he can find no practical way of meeting thehealth and safety demands of an OSHA standard…. \” _UnitedSteel-workers v. Marshall_, 647 F.2d 1189, 1268 (D.C. Cir. 1980).[[15]] Courts have allowed administrative agencies considerablediscretion in placing burdens of persuasion. _See N.L.R.B. v_._Transportation Management Corp_., 462 U.S. 393 (1983); _Zurn Industriesv. N.L.R.B_., 680 F.2d 683 (9th Cir. 1982) _cert_. _denied_, 459 U.S.1198 (1983); _N.L.R.B. v. Fixtures Manufacturing Corp_., 669 F.2d 547(8th Cir. 1982).[[16]] _Cf_. _National Realty & Construction Co. v. OSHRC_, 489 F.2d1257, 1266 (D.C. Cir. 1973).[[17]] While the Fifth Circuit has expressed concern in this area, ithas upheld general standards against challenges that they wereunconstitutionally vague for failure to provide employees withreasonable notice of what is required. _See Ryder Truck Lines, Inc. v_._Brennan_, 497 F.2d 230 (5th Cir. 1974), upholding 29 C.F.R. ?1910.132(a), and _B & B Insulation, Inc. v. OSHRC_, 583 F.2d 1364 (5thCir. 1978), upholding 29 C.F.R. ? 1926.28(a) (\”We conclude … that itsrequirements are not unforeseeable if the standard is read to requireonly those protective measures which the knowledge and experience of theemployer’s industry, which the employer is presumed to share, wouldclearly deem appropriate under the circumstances.\”)[[18]] Several circuits of the Courts of Appeals have held that in orderto satisfy due process the Secretary must prove that there is a feasiblemethod of complying with the standard, if the standard does not specifya means of compliance. _See_ _L.R. Willson & Sons_, _Inc. v. OSHRC_,698 F.2d 507 (D.C. Cir. 1983); _Modern Drop Forge Co. v. Secretary ofLabor_, 683 F.2d 1105 (7th Cir. 1982); _Voegele Co. v. OSHRC_, 625 F.2d1075 (3d Cir. 1980); _Ray Evers Welding v. OSHRC_, 625 F.2d 726 (6thCir. 1980); _Bristol_ _Steel & Iron Works, Inc. v. OSHRC_, 601 F.2d 717(4th Cir. 1979); _General Electric Co. v. OSHRC_, 540 F.2d 67 (2d Cir.1976).[[19]] _See generally_ M. Rothstein, _Occupational Safety and HealthLaw_ ? 145 (2d ed. 1983).The most distinctive and significant element of ? 5(a)(1) violations isthat they are limited to \”recognized hazards.\” The \”recognition\”requirement serves to ensure that cited employers at least haveconstructive knowledge of the existence of specific hazardousconditions. In this way, Congress sought to eliminate the unfairness ofassessing first-instance civil penalties based on such a sweeping andbroadly worded provision.[[1\/]] Section 17(b) states the following:(b) Any employer who has received a citation for a serious violation ofsection 5 of the Act . . . shall be assessed a civil penalty of up to$1,000 for each such violation.[[1]] 29 C.F.R. ? 1926.500(d)(1) requires, in pertinent part, that\”[e]very open-sided floor or platform 6 feet or more above adjacentfloor or ground level shall be guarded by a standard railing . . . onall open sides . . . .\” Section 1926.28(a) requires that employees wear\”appropriate personal protective equipment in all operations where thereis an exposure to hazardous conditions or where this part [Part 1926]indicates the need for using such equipment to reduce the hazards to theemployees.\”[[2]] 29 U.S.C.? 659(c) provides that \”[i]f an employer notifies theSecretary that he intends to contest a citation . . . or [penalty]notification . . . the Commission shall afford an opportunity for ahearing . . . . \””