“Docket No. 79-2553 SECRETARY OF LABOR,Complainant,v.DUN-PAR ENGINEERED FORM CO.,Respondent.OSHRC DOCKET NO. 79-2553\u00a0ORDERThe Secretary has advised the Commission that a remand has not been sought in thiscase.\u00a0 Accordingly, in accordance with the Commission decision issued July 30, 1986,this case is final order as of the date of this order.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: SEP 3 1986\u00a0SECRETARY OF LABOR,Complainant,v.DUN-PAR ENGINEERED FORM CO.,Respondent.OSHRC Docket No. 79-2553\u00a0DECISIONBefore: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:\u00a0This case is before the Occupational Safety and Health Review Commission under 29U.S.C. ? 661(i), Section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ? 651-678 (\”the Act\”).\u00a0 The Commission is an adjudicatory agency,independent of the Department of Labor and the Occupational Safety and HealthAdministration (\”OSHA\”).\u00a0 It was established to resolve disputes arisingout of enforcement actions brought by the Secretary of Labor under the Act and has noregulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).As a result of an employee compliant against the general contractor, an OSHAcompliance officer inspected a construction worksite in Excelsior Springs, Missouri.\u00a0 At the worksite, several different employers were working on an eleven-storybuilding.\u00a0 Among the subcontractors was Dun-Par Engineered Form Company(\”Dun-Par\”), which was responsible for the concrete formwork at the site.\u00a0When the compliance officer arrived at the worksite, the building was partiallyconstructed to the sixth floor.\u00a0 The second, third and fourth floors of the buildinghad guardrails around the perimeter.\u00a0 However, the fifth and sixth floors did not.\u00a0 The compliance officer observed eight Dun-Par employees tearing down formwork onthe fifth floor.\u00a0 Although he did not see anyone on the sixth floor, the complianceofficer was told later that Dun-Par employees also had been working on the sixth floor.\u00a0 The Secretary cited Dun-Par under 29 C.F.R. ? 1926.500(d)(1)[[1]] for failing toprovide guardrails on the fifth and sixth floors.\u00a0 The Secretary later amended hiscitation to allege, in the alternative, that Dun-Par should have protected its employeesagainst perimeter falls by providing them with safety belts under the personal protectionequipment standard at 29 C.F.R. ? 1926.28(a).[[2]]Judge Dixon affirmed the citation and rejected Dun-Par’s defense that guardrailswere \”impossible\” to erect at the worksite.\u00a0 The judge found that Dun-Parcould have installed guardrails and also found that \”cables, catch platforms,outriggers and nets, and safety belts\” would have been feasible.\u00a0 We reverseJudge Dixon’s findings and hold that Dun-Par established that guardrails and safety beltswere infeasible at the Excelsior Springs worksite.[[3]]At the worksite, Dun-Par erected the wooden formwork into which concrete waspoured to form the structural framework of the building.\u00a0 This formwork was erectedon each floor of the building.\u00a0 The formwork for one floor could not be erected untilthe concrete on the previous floor had hardened.First, the vertical forms, or shores, were built by connecting two 4×4 woodenbeams together with the aid of an \”ellis clamp.\”\u00a0 Then, 4×6 horizontalforms, or ledgers, were attached to the vertical shores and the vertical and horizontalforms were raised.\u00a0 Every sixteen feet along the floor, this same process ofcombining and then raising vertical and horizontal forms was repeated.\u00a0 The formworkalong the perimeter of the floor was angled out in such a way that the shores would beable to support an overhead walkway that would be built around the floor above.Additional 4×4 horizontal wooden forms, called runners, were attached to join theshores and ledgers together.\u00a0 This vertical and horizontal formwork was braced byadditional 4×4 and 4×6 wooden beams.\u00a0 A horizontal gridwork form was placed down ontop of this infrastructure and plywood was nailed down onto the gridwork form. \u00a0Concrete was then poured onto the completed formwork.\u00a0 When the concrete hardened,the wooden formwork was torn down by Dun-Par employees standing in the center of the floorand pulling the wooden forms away from the hardened concrete.\u00a0 This left a concretefloor, which Dun-Par employees used as a base at some later time to erect vertical andhorizontal formwork for the next floor.Dun-Par argued to the judge that it could not have erected guardrails and stillperformed its work at the Excelsior Springs worksite.\u00a0 Specifically, Dun-Par argued\”the functional impossibility\/impracticality of perimeter guarding.\”\u00a0 Atthe hearing, Dun-Par presented the testimony of two Dun-Par construction workers and JohnDunn, the president of Dun-Par.\u00a0 All three witnesses had extensive experience inconcrete formwork; all three gave several specific reasons why guardrails were notfeasible at any stage during Dun-Par’s work.\u00a0 The three Dun-Par witnesses testifiedthat before the plywood forms had been laid on top of the vertical shores and horizontalledgers and gridwork there was no place to erect guardrails.The compliance officer conceded that guardrails could not be erected until theplywood forms were put down, but contended that guardrails were feasible on the fifth andsixth floors of the Excelsior Springs project.\u00a0 However, the Dun-Par witnessesdemonstrated that guardrails would also be infeasible on the fifth and sixth floors.\u00a0 Dunn explained that the vertical shoring on one floor was used to support the floorabove and a walkway surrounding the overhead floor.\u00a0 Here, the vertical shoring ofthe fifth, or \”base\” floor was used to support the sixth floor and walkwaysurrounding the sixth floor.\u00a0 Thus, the vertical shoring on the fifth floor had to beangled out so that it supported the overhead walkway which was beyond the perimeter of thebuilding.\u00a0 The way in which the vertical shoring was angled out, according to Dunn,made it impossible to erect a guardrail on the fifth floor while the formwork was beingerected on top of the concrete base floor.\u00a0 Any guardrail would interfere with thisessential vertical shoring and would have had to be removed when Dun-Par erected thevertical perimeter shores.\u00a0 One Dun-Par employee explained that any cable orguardrail around the perimeter of the building would actually force Dun-Par workers toperform some of their duties outside the perimeter guarding.Dun-Par’s witnesses also testified that guardrails were not feasible on the sixthfloor during the time between the laying of the plywood cover and the erection of thevertical shores to support the next level.\u00a0 First, the Dun-Par witnesses testifiedthat when the plywood was placed down and guardrails could be erected, the guardrailswould perform no safety function for the Dun-Par employees.\u00a0 After the plywood formswere in place, Dun-Par’s work on the floor was completed and the other building tradeswould come on to the floor and perform their duties.\u00a0 As Dunn explained, afterplywood forms were in place, Dun-Par employees were \”down the building and othertrades are moving in.\”Dunn stated that a single Dun-Par employee oversaw the pouring of concrete overthe wooden forms to check for any unusual weaknesses in the formwork.\u00a0 However, thisemployee, according to Dunn, would not go to the perimeter of the building unless therewas a particular problem.Finally, the Dun-Par witnesses explained that the guardrails would be destroyedwhen Dun-Par employees returned to remove the shoring after the concrete was poured.\u00a0 The wooden shores were wedged into place and were removed by pulling them out.\u00a0 According to Dun-Par witnesses, any guardrails in place would be destroyed when theshoring was ripped down.\u00a0 Therefore, guardrails would not be feasible during thetearing down of the formwork.Dun-Par also argued that \”a safety belt\/life line system of protection isneither feasible nor of likely utility.\”\u00a0 The Secretary presented only thegeneral opinion of the compliance officer–who had no experience in concreteformwork–that such protection could have been provided.\u00a0 On the other hand, Dun-Parpresented specific testimony as to why safety belts would not have been feasible. \u00a0When asked whether Dun-Par employees needed to move around freely in the work area inorder to do their job.\u00a0 He added, \”We’re going up and down ladders. \u00a0Safety belts would just be impossible to do the job, do the work.\”IITo prove a violation of an OSHA standard, such as sections 1926.500(d)(1) or1926.25(a), the Secretary must establish (1) the applicability of the cited standard, (2)the existence of noncomplying conditions, (3) employee exposure or access, and (4) thatthe employer knew or with the exercise of reasonable diligence could have known of theviolative condition.\u00a0 See Belger Cartage Service, Inc., 79 OSAHRC 16\/B4, 7 BNAOSHC 1233, 1235, 1979 CCH OSHD ? 23,440, p. 28,373 (No. 76-1480, 1979); HarveyWorkover, Inc., 79 OSAHRC 72\/D5, 7 BNA OSHC 1687, 1688-90, 1979 CCH OSHD ? 23,830,pp. 28,908-10 (No. 76-1408, 1979).\u00a0 Here, there is no dispute about either theapplicability of the standards or that there were no guardrails or safety belts being usedat the worksite.\u00a0 Neither is there any question that Dun-Par employees had access tothe unguarded perimeter or that Dun-Par knew about the condition.\u00a0 The question inthis case is whether, as the direction for review suggests, the erection of guardrails anduse of safety belts were feasible at the Excelsior Springs worksite.The Commission has long held that employers may defend against a citation thatalleges a violation of an OSHA standard requiring a particular means of abatement,–inthis case, section 1926.500(d)(1), which requires the installation of guardrails–byproving the affirmative defense of \”impossibility.\”\u00a0 E.g., Julius NassoConcrete Corp., 77 OSAHRC 208\/F2, 6 BNA OSHC 1171, 1977-78 CCH OSHD ? 22,401 (No.16012, 1977).\u00a0 This defense has two elements: (1) impossibility and (2) proofof alternative protection.\u00a0 Under this defense the employer must firstdemonstrate that compliance with the standard’s literal requirements was not possible orwould preclude performance of the employer’s work.\u00a0 E.g., Bratton FurnitureManufacturing Co., 83 OSAHRC 30\/A2, 11 BNA OSHC 1433, 1435, 1983-84 CCH OSHD ?26,538, p. 33,858 (No. 81-799, 1983).\u00a0 Secondly, the employer must show that he tookalternative means of protection not specified in the standard, or that alternative meansof protection were unavailable.\u00a0 Id.\u00a0 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 that Dun-Par failedto establish the elements of the impossibility defense.\u00a0 According to the Secretary,Dun-Par failed to show that the erection of guardrails or the use of safety belts wouldhave prevented Dun-Par from doing its work.\u00a0 The Secretary also argues that Dun-Parfailed to show that other ways of protecting the workers were not available.On review, Dun-Par does not argue that the erection of guardrails was absolutelyimpossible but that the guardrails \”were not a feasible means to protect Dun-Paremployees due to the circumstances and nature of Dun-Par’s work.\”\u00a0 Dun-Parfurther argues that the guardrails were not \”practical\” and that their use atthe workplace was \”contrary to common sense and the purpose of the Act.\” \u00a0Similarly, Dun-Par argues that the record establishes that safety belts were \”neitherfeasible nor of likely utility.\”\u00a0 Dun-Par argues that the Commission shouldfollow the rationale of the United States Court of Appeals for the Eighth Circuit in H.S.Holtze Construction Co. v. OSHRC, 627 F.2d 149 (8th Cir.1980), and adopt a morepractical and reasonable approach to the defense of \”impossibility.\”Dun-Par’s arguments on review are not couched in the traditional terms of theimpossibility defense.\u00a0 Dun-Par does not claim that the erection of guardrails or theuse of safety belts was \”impossible\” but only that these means of protection didnot make sense given the manner in which Dun-Par performed its work.\u00a0 Neither doesDun-Par make any claim that it took available, alternative measures, as required under thesecond element of the \”impossibility\” defense.\u00a0 Essentially, Dun-Parquestions the \”impossibility\” defense as it has been developed by theCommission.A.Heretofore, the initial requirement of the impossibility defense was that theemployer was required to show that it is \”impossible\” to comply with a standard.\u00a0 Although Commission decisions have consistently spoken of\”impossibility,\” several courts of appeals have instead inquired whethercompliance was \”infeasible.\”[[4]]\u00a0 It is to this distinction between\”impossibility\” and \”infeasibility\” that we now turn.Section 5(a)(2) of the Act, 29 U.S.C. ? 654(a)(2), states simply that employers\”shall comply with occupational safety and health standards promulgated under thisAct.\”\u00a0 However, it soon became apparent to the Commission that this provision ofthe Act could not reasonably be applied in a literal manner and that some sort ofimpossibility or infeasibility defense was necessary.\u00a0 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). \u00a0There, the employer had suggested that compliance with a standard would have preventedwork from being performed.\u00a0 The Commission remanded to give the employer anopportunity to prove this but reserved decision on whether the allegation was a defense.\u00a0 The Commission stated simply that:It may well be that [the employer], by this allegation, intended to raise (albeitinartfully) impossibility of compliance as an affirmative defense.\u00a0 We would give[the employer] the opportunity to present the defense without venturing any opinion atthis time concerning the question of the completeness of the defense, if established underthe Act.1 BNA OSHC at 1076, 1973-74 CCH OSHD at p. 22,165.In the first Commission decision that actually upheld the defense, the Commissionvacated a citation for a violation of standards requiring guardrails on the ground thatthe work would have been \”impossible\” with the railings in place.\u00a0 W.B.Meredith, II, Inc., 74 OSAHRC 39\/A2, 1 BNA OSHC 1782, 1973-74 CCH OSHD ? 18,003 (No.810, 1974); see also Garrison & Associates, Inc., 75 OSAHRC 51\/D5, 3 BNA OSHC1110, 1974-75 CCH OSHD ? 19,550 (No. 4235, 1975).\u00a0 The Commission did not, however,make clear why a showing of \”impossibility\” was necessary, as opposed to ashowing of \”infeasibility.\”\u00a0 Possibly early members of the Commission sawno sharp distinction between the two, because thereafter, in K & T Steel 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 provenbecause the evidence showed the \”feasibility\” of using a guarding methodrequired by a standard.\u00a0 See also Central Steel & Tank Co., 75 OSAHRC9\/A2, 3 BNA OSHC 1711, 1712, 1975-76 CCH OSHD ? 20,172, p. 24,017 (No. 2346, 1975)(employer failed to establish that no \”practical\” means of guarding exists;\”impossibility\” defense not proved); and Universal Sheet Metal Corp., 74OSAHRC 44\/D7, 2 BNA OSHC 1061, 1973-74 CCH OSHD ? 18,163 (No. 657, 1974) (compliance withstandard would render performance of work \”very difficult if notimpossible.\”)\u00a0 When finally in C. Kaufman, Inc., 78 OSAHRC 3\/C1, 6 BNAOSHC 1295, 1300, 1977-78 CCH OSHD ? 22,481, p. 27,101 (No. 14249, 1978), and HughesBrothers, Inc., 78 OSAHRC 65\/A2, 6 BNA OSHC 1830,1835, 1978 CCH OSHD ? 22,909, p.27,719 (No. 1253, 1978), the Commission drew a sharp distinction between the terms\”impossibility\” and \”infeasibility,\” it did not explain why it did so.\u00a0 See also StanBest, Inc., 83 OSAHRC 10\/D6, 11 BNA OSHC 1222, 1231, 1983-84CCH OSHD ? 26,455, p. 33,624 (No. 76-4335, 1983).We think that the early members of the Commission correctly appreciated thatliteral compliance with the standards was not always possible.\u00a0 However, we do notbelieve the so-called impossibility defense, as presently framed, adequately reflects theobligations of employers under the Act.\u00a0 The standards adopted in the earliest daysof the Act were national consensus standards and established federal standards, whichCongress had required the Secretary to adopt quickly without additional rulemaking. \u00a0See sections 3(9), 3(10) and 6(a) of Act, 29 U.S.C. ? 652(9), 652(10) and 652(a).\u00a0The national consensus standards, which were the source of the \”overwhelming majorityof safety standards,\”[[5]] were often out-of-date by the time OSHA adoptedthem.[[6]]\u00a0 They had been drafted by committees of industry representatives under theauspices of private standard-setting organizations, particularly the American NationalStandards Institute (ANSI) and the National Fire Protection Association (NFPA), and werenot intended to be used as mandatory, inflexible legal requirements.\u00a0 A managingdirector of ANSI, for example, commented that \”[i]n the days before OSHA, whenstandards were developed as advisories, not laws, the committees sometimes tended toincorporate some lofty goals, knowing they would never be held accountable if [employers]didn’t achieve them.\”[[7]]\u00a0 As one observer noted:…[P]rivate standards were often written as goals to be attained rather than asrules intended to be enforced.\u00a0 …Many combine arbitrary levels, values, or otherrequirements with an either explicit or implicit understanding that these requirements arenot to be applied by rote to every situation which they might literally cover.[[8]]Both OSHA officials and early members of the Commission recognized that thevoluntary consensus standards were not designed to be rigidly enforced.[[9]]\u00a0 Thisview was reaffirmed by the Third Circuit in A.F.L.-C.I.O. v. Brennan, 530 F.3d 109,112 (3d Cir. 1975).\u00a0 That case involved a machine guarding standard that was derivedfrom an ANSI standard.\u00a0 The court observed that \”[w]hen it promulgated the nohands in dies standard, the [ANSI] B 11 standards committee did not anticipate that itscode would…become a mandatory federal standard rather than a precatory guideline for theaffected industries.\”This lack of expectation of rigid enforcement also lay behind the establishedfederal standards adopted en masse in 1971.\u00a0 Many were taken from standards adoptedunder the Walsh-Healey Public Contracts Act, 41 U.S.C. ? 35-45.\u00a0 Yet, theWalsh-Healey standards were only interpretive rules, designed to establish a benchmark foremployee safety and health but not to finally determine the government contractor’s duty.\u00a0 Thus, Labor Department regulations permitted the contractor to challenge\u00a0 the\”legality, fairness or propriety\” of the Labor Department’s reliance on astandard to show a violation of the statutory prohibition against \”unsanitary orhazardous or dangerous working conditions.\”\u00a0 41 C.F.R. ? 50-204.1.\u00a0 Seegenerally American Can Co., 82 OSAHRC 5\/A2, 10 BNA OSHC 1305, 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 the Contract Work Hours and SafetyStandards Act, 40 U.S.C. ? 327 et seq. (commonly known as the \”ConstructionSafety Act\”).\u00a0 According to 29 C.F.R.?1926.10 (first designated 29C.F.R.?1518.10), the Construction Safety Act standards were specifically intended tointerpret and apply section 107 of the Construction Safety Act, 30 U.S.C.?333, whichprohibits \”unsanitary, hazardous, or dangerous\” working conditions in governmentconstruction work.\u00a0 However, the procedures for enforcement were to be those underthe Service Contract Act, 41 U.S.C.?351 et seq. 29 C.F.R.?1926.4 (firstdesignated 29 C.F.R. ? 1518.4), adopted at 36 Fed. Reg. 7340, 7341, (1971).\u00a0The version of the pertinent Service Contract Act regulation that was ineffect when theConstruction Safety Act standards were adopted prescribed a system like that in theWalsh-Healey Act: Labor Department investigators and other officers were instructed to\”assume that failure to comply with…the safety and health measures provided in [theService Contract Act standards] results in working conditions which are ‘unsanitary orhazardous or dangerous…’\”\u00a0 In \”formal enforcement proceedings,\”however, contractors would \”be permitted to demonstrate by reliable, substantial,probative evidence, that their failure to comply with [the Service Contract Act standards]did not result in working conditions unsanitary or hazardous or dangerous….\”\u00a0Section 1516.1(b) and (c), adopted at 32 Fed. Reg. 21036-21037 (1967).\u00a0Thus, the Construction Safety Act standards were originally intended to be onlyinterpretive regulations; failure to follow a standard was not a per seviolation.Moreover, many, if not most, of the interpretive standards adopted under theWalsh-Healey Act and the Construction Safety Act were themselves derived from private,voluntary standards, which, as we have noted, were not drafted as inflexible, legalcommands.[[10]]The Commission’s in interpreting and applying the OSHA standards adopted undersection 6(a) has been consistent with the above account of their history–that they couldnot possibly have been written with literal application in mind; rather the standards weredesigned not for all cases but for the normal case.[[11]]\u00a0 As the Eighth Circuitpointed out in H.S. Holtze Construction Co. v. Marshall, 627 F.2d at 151-152,\”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 strong sense of thepractical implicit in the standards adopted under section 6(a).\u00a0 Feasibility, on theother hand, is consistent with the requirements of the Act and with earlier Commissiondecisions.\u00a0 This view is buttressed by the legislative history of the Act and by thelanguage of some standards.\u00a0 Thus, section 6(b)(5), by which means Congress intendedthe Secretary to adopt the health standards that would replace OSHA \”interim\”standards, speaks expressly of \”feasibility.\”\u00a0 One court has inferred fromsection 6(b)(5) that all OSHA standards are implicitly constrained by the feasibilityrequirement.\u00a0 See A.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).\u00a0 TheSecretary’s own standards–particularly the new health standards–consistently use theword \”feasible\” to qualify the employer’s obligation.[[13]]\u00a0 The generalduty imposed by section 5(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.\”\u00a0 See National Realty & Construction Co. v. OSHRC,489 F.2d 1257 (D.C. Cir. 1973).\u00a0 Finally, when a standard is so unclear that it wouldotherwise be held unconstitutionally vague, the Commission and several courts of appealshave held that the standard applies only to the extent the duty imposed on the employer is\”feasible.\”\u00a0 See Granite City Terminals Corp., 86 OSAHRC___, 12 BNAOSHC 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); Voegle Co. v. OSHRC, 625 F.2d 1075 (3rd Cir. 1980); Ray EversWelding 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 \”[r]ather than ‘impossibility,’the question is more properly thought of in terms of [in]feasibility.\u00a0 A.E.Burgess Leather Co. v. OSHRC, 576 F.2d 948, 950 & n.1 (1st Cir. 1978).[[14]]\u00a0 We therefore modify the defense by changing the inquiry in the first element from\”impossibility\” to \”infeasibility.\”\u00a0 We overrule Commissionprecedent that requires employers to prove that compliance with a standard is\”impossible\” rather than \”infeasible.\”B.Under the second element of the impossibility defense, an employer who establishedthe impossibility of the cited standard was also required to persuade the trier of fact bya preponderance of the evidence that alternative protective measures had been taken orwere unavailable.\u00a0 M.J. Lee Construction Co., 79 OSAHRC 12\/A2, 7 BNA OSHC1140, 1146, 1979 CCH OSHD ? 23,330, p. 28,229 (No. 15094, 1979).\u00a0 Although section5(a)(2) of the Act does not expressly impose a requirement to use available alternativeprotective measures, the Commission has reasoned that an employer should do something toprotect its employees if literal compliance with a standard is impossible.\u00a0 See id.However, none of the Commission cases that discussed the impossibility defense andthat allocated the burden of percussion to the employer to establish that compliance witha standard was \”impossible,\” ever analyzed why the employer should also have theburden of persuasion to establish that alternative means of protection were\”unavailable\” or why \”unavailability\” would be the test fordetermining the employer’s duty.\u00a0 Similarly, although the courts of appeals upheldthe Commission’s allocation of the burden of persuasion to the employer to establish thatcompliance with the cited standard was \”infeasible\” or \”impossible,\” ClevelandConsolidated v. OSHRC, 649 F.2d 1160 (5th Cir. 1981); Southern Colorado PrestressCo. v. OSHRC, 586 F.2d 1342 (10th Cir. 1978); Diebold Inc. v. Marshall, 585F.2d 1327 (6th Cir. 1978); A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948 (1stCir. 1978); Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439 (5th Cir. 1977),none of the courts discussed the allocation of the burden of persuasion on the alternativemeasures element.The allocation to the employer of the burden of persuasion on the alternativemeasures issue posed almost insoluble litigating problems for the employer: He would haveto prove the negative of a proposition and he could never know when he had proven theunavailability of all the alternative measures that could possibly exist.\u00a0 To preparefor a hearing in which the impossibility of abatement would be in issue, the employerwould have to conceive of all possible alternative measures, including those that might besuggested by the Secretary or his witnesses, and prepare evidence to establish that allthose measures were \”unavailable.\”\u00a0 Still, the employer might not haveanticipated no matter how diligent or imaginative his preparation for the hearing.We conclude that the burden of proposing alternative means of protection andpersuading the trier of fact that the employer failed to use them more fairly rests withthe Secretary.It should be noted that there are \”no hard-and-fast standards governing theallocation of the burden of proof in every situation.\”\u00a0 Keyes v. SchoolDistrict No. 1, Denver, Colo., 413 U.S. 189, 209 (1973).\u00a0 Where the burden ofpersuasion falls will ultimately rest \”upon broad reasons of experience andfairness.\”\u00a0 J. Wigmore, Evidence ? 2486 at 292 (J. Chadbourn ed., 1981).The courts have considered a host of factors when deciding whether to place theburden of persuasion with one party or another.[[15]]\u00a0 See McCormick, Lawsof Evidence ?337 at 788-789 (2d ed. 1972).\u00a0 One factor that is carefullyconsidered is whether the facts with regard to an issue are within the knowledge of aparticular party; if they are, that party is more likely to be allocated the burden ofestablishing those facts.\u00a0 McCormick at 787; Advanced Micro Devices v.C.A.B, 742 F.2d 1520 (D.C. Cir. 1984).\u00a0 See also Louisiana-Pacific Corp.,77 OSAHRC 63\/E14, 5 BNA OSHC 1572, 1977 CCH OSHD ? 21,977 (No. 6277, 1977) (concurringopinion).\u00a0 One court used this reasoning in holding that the burden of persuasionshould be on the employer to establish that compliance with the cited standard wasinfeasible.\u00a0 The Fifth Circuit in Ace Sheeting observed:Here, the regulation stated specific ways for the employer to eliminate thehazard.\u00a0 If the employer put up guardrails or covered the skylights, the safetystandard would have been met.\u00a0 If for any reason guard rails or covers are notfeasible, the employer knows this better than anyone else, and it is reasonable to requirehim to come forward with the evidence to prove it….\u00a0 We therefore hold that where aspecific duty standard contains the method by which the work hazard is to be abated, theburden of proof is on the employer to demonstrate that the remedy contained in theregulation is infeasible under the particular circumstances.Ace Sheeting, 555 F.2d at 441.On the other hand, determining whether alternative feasible means of protectioncould have been used in a particular situation requires safety expertise and a broadknowledge of available abatement methods.[[16]]\u00a0 An employer is not always aware ofthe many alternative means of protection, particularly if the alternative means ofprotection are not commonly used in the employer’s industry.\u00a0 Knowledge of thevarious alternative means of protection is more likely to reside with the complianceofficer and other employees of the Occupational Safety and Health Administration. \u00a0The employer does not on balance have any peculiar knowledge concerning alternative meansof protection and may indeed have less knowledge than OSHA of such matters.The allocation to the Secretary of the burden of alleging and establishingalternative means of protection is more consistent with holdings in closely analogousareas of occupational safety and health law.\u00a0 Where a statute or standard specifies ameans of abatement or states specific performance criteria, an employer informed of hisduty; if he raises an infeasibility defense, he will know what measures he must prove are\”infeasible.\”\u00a0 If the standard or statute (for example, the general dutyclause) is not so specific, however, the Commission and the courts have imposed on theSecretary the duty to specify and prove the feasibility of a means of abatement.\u00a0 CompareNational Realty & Construction Co., Inc. v. OSHRC, 489 F.2d 1257, 1268 (D.C. Cir.1973) (general duty clause), and Granite City Terminals Corp., 86 OSAHRC___, 12 BNAOSHC 1741, 1746, 1986 CCH OSHD ? 27,547, p. 35,775 (No. 83-882-S, 1986) (generalstandards), with Anoplate Corp., 86 OSAHRC___, 12 BNA OSHC 1678, 1684, 1986 CCHOSHD ? 27,519, p. 35,682 (No. 80-4109, 1986) (no burden of proving feasibility wherestandard is specific).\u00a0 Here, once the employer has proven the infeasibility of thespecific means of abatement imposed by or described by a standard, the situation issimilar to one in which a standard or statute prescribes none at all.\u00a0 Here too then,we think it appropriate to impose on the Secretary the duty to formulate his owntheory of what the employer should have done, to allege that theory and to support it withevidence at the hearing.For much the same reason, the Secretary will be required to show that thealternative means of protection is \”feasible\” and not merely\”available.\”\u00a0 This accords with the reasoning of the District of ColumbiaCircuit in National Realty that we mentioned above, and, as discussed in Part II.Aof this decision, with the language, structure and purpose of the Act.\u00a0 The Secretarymust therefore show that the alternative means is a practical and realistic method, giventhe circumstances at the workplace, to protect the employer’s workers, and that theemployer did not use it.The employer may, of course, rebut the Secretary’s showing that the employer didnot use a feasible alternative method of protection.\u00a0 He may, among other things,show that he had used another alternative protective method that was reasonably designedto mitigate the hazard.\u00a0 The alternative method that was reasonably designed tomitigate the hazard.\u00a0 The alternative method actually used by the employer need not,however, be as protective as the method proposed by the Secretary; it need only provide asmuch protection as the method required by the standard or, in the case of a generalstandard, by the method of protection proven to be a feasible method of complying with thestandard.We believe the reallocation of the burden of persuasion described in this decisionwill be fairer to the parties.\u00a0 It will give the employer sufficient notice of whatalternative means of protection will be the subject of the litigation.\u00a0 We alsobelieve this reallocation of the burden of persuasion will \”sharpen the inquiry\”and \”frame the factual question\” to the essential question concerningalternative means of protection: what could the employer have done to bring himself intocompliance with the cited standard?\u00a0 See Texas District of Community Affairs v.Burdine, 450 U.S. 248, 255 (1981).\u00a0 This will result in the creation of a fullerrecord concerning the important issues of the case and therefore better decision making.In placing on the Secretary the burden to show the feasibility of specificalternative measures, we do not hold that when employers are faced with the infeasibilityof the specific abatement method identified in applicable standards, they are free to donothing until told what to do by the Secretary in an adjudicatory proceeding.\u00a0 Justas employers have a duty to make reasonable efforts to comply with the general duty,employers who find identified forms of abatement infeasible continue to have a duty tomake reasonable efforts to utilize other means of abating the hazard of which the standardgives them notice.The concurring opinion argues that due process problems will arise because theemployer may be held in violation of the Act for not taking measures that are not requiredby standards promulgated under section 5(a)(2) or under the general duty clause of theAct.\u00a0 We believe that there are not such due process problems.We do not agree with the concurrence that the Secretary’s alternative measure mustbe derived from the most specifically applicable standard or through independent proof ofa recognized hazard under section 5(a)(1).\u00a0 In large measure the concurrence, bypermitting an alternative measure to be rebutted on grounds of inapplicability orpreemption, would preclude the Secretary from rebutting an infeasibility defense sincemost standards are hazard specific.\u00a0 The Secretary need not offer independent proofof recognition of the hazard since the standard which he first cited gives the employernotice of the hazard.\u00a0 Nor, where a cited standard would require abatement of otherthan serious hazards, would it be necessary for the Secretary to show the hazard to belikely to cause death or serious injury.\u00a0 It having been established in rulemakingthat the hazard warrants precautionary measures, the remaining issue, where the employerhas raised infeasibility of compliance as a defense, is simply the feasibility and likelyutility of means of abatement not specified in the standard.\u00a0 We would reiterate,however, that the Secretary has the same burden to show feasibility of the alternativemeasure as under the general duty clause.That the exact measures the employer should have taken are not spelled out in astandard is no different from when an employer is cited under the general duty clause or aperformance standard.\u00a0 There, an employer is not apprised of specific measures hemust take to comply with the general duty clause or a performance standard, but ratheronly with the general nature of the hazard.\u00a0 Just as the Commission and the courtshave found no due process problems with the lack of specific abatement methods in thegeneral duty clause or general performance standards,[[17]] we perceive no violation ofdue process because an employer is not notified in a standard of the specific alternativemeans of abatement he could take to protect his employees.\u00a0 In both cases, theemployer has a duty to think for himself and determine what feasibly can be done.III.Applying the infeasibility defense here, the question is whether Dun-Parestablished that guardrails could not have been installed or would have disrupted the workto such a degree that there was no feasible way to use guardrails to protect Dun-Par’semployees.\u00a0 Dun-Par’s work in erecting the concrete formwork occurred in severaldistinct stages.In the first stage, Dun-Par employees constructed and then raised vertical andhorizontal forms every 16 feet along the floor.\u00a0 Both parties agreed that at thisstage, before the plywood was laid on top of the vertical and horizontal forms, there wassimply no place to put guardrails.\u00a0 Therefore, at this stage in Dun-Par’s work,guardrails were infeasible.In the next stage of Dun-Par’s work, Dun-Par’s employees attached plywood to thevertical and horizontal forms so that concrete could be poured onto the wooden forms.\u00a0 The parties disagreed whether guardrails could be used at this stage of Dun-Par’swork.\u00a0 Dun-Par argued that guardrails could not be used because of the way in whichthe vertical shores along the perimeter of the building had to be angled out. \u00a0Dun-Par’s witnesses explained that the vertical shores along the perimeter of the buildingwere used to support the overhead floor and a walkway surrounding the floor above.\u00a0According to Dun-Par’s witnesses, the way in which vertical shores were angled would leaveno room for guardrails along the perimeter.From the evidence at the hearing, it appears that it was theoretically possible toerect guardrails once the plywood was put down.\u00a0 However, just because there was someconceivable way to erect guardrails does not mean that guardrails were feasible.\u00a0 Asthe Dun-Par witnesses explained, guardrails would interfere with the vertical shoringalong the perimeter of the floor.\u00a0 Any guardrail along the perimeter would have to beremoved so as not to interfere with this shoring.\u00a0 Thus, guardrails could have beenplaced somewhere on the floor though not along the perimeter.\u00a0 Dun-Par witnessestestified, however, that any perimeter guarding would force Dun-Par employees to workoutside the perimeter guards.\u00a0 We therefore find that guardrails were infeasible atthis stage of Dun-Par’s operation.\u00a0 Requiring an employer constantly to erect andtear down the guardrails or to have its employees work outside the guardrails in order tocomplete their work is not a feasible method of complying with section 1926.500(d)(1).The next stage of work was the pouring of concrete.\u00a0 This began after thevertical and horizontal forms were erected and the plywood was laid down.\u00a0 By thistime, almost all of the Dun-Par employees had left the work area.\u00a0 Only one Dun-Paremployee generally remained to oversee the pouring of concrete over the wooden forms andto check for any sagging or slippage in the forms.\u00a0 The employee would have nooccasion to approach the perimeter of the floor unless there was an unexpected problemwith the shores at the perimeter of the building during the concrete pour.We are unconvinced by the Secretary’s evidence of employee access at this stage.\u00a0 The Secretary must prove that it is reasonably predictable that \”employeeseither while in the course of their assigned duties, their personal comfort activitieswhile on the job, or their normal means of ingress-egress to their assigned workplaces,will be, are or have been in a zone of danger.\”\u00a0 Carpenter Contracting Corp.,84 OSAHRC___, 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 BNA OSHC 2002, 2003, 1975-76CCH OSHD ? 20,448, p. 24,425 (No. 504, 1976).\u00a0 Here, the evidence consists of nomore than speculation that an employee might go to the edge of the building if an unusualevent occurred.\u00a0 Although it may have been physically possible to erect perimeterguardrails at this stage, it would have made no practical sense for Dun-Par to have doneso.\u00a0 Dun-Par undoubtedly would have had to engage other employees in the erection ofguardrails along the entire perimeter of the fifth floor, thereby inevitably exposing themto a fall hazard.\u00a0 This would have been done to protect one employee in the event ofan unusual occurrence during the concrete pour–that an employee would go to the floorperimeter to check for sagging or slippage of the wooden forms.\u00a0 We find thatguardrails would not have been a feasible way to protect that single Dun-Par employeeduring the concrete pour.After the poured concrete hardened, Dun-Par employees returned to the work area toremove the wooden forms.\u00a0 Dun-Par employees would stand away from the perimeter ofthe floor and pull the wooden forms with the aid of a rope or board toward the center ofthe floor.\u00a0 Uncontradicted testimony by Dun-Par’s witnesses established that anyguardrails would have been destroyed by this procedure.\u00a0 At this point, guardrailsmay have been theoretically possible but they would have served no practical purpose inprotecting the employees.\u00a0 Under the circumstances, we find that guardrails at thisstage of Dun-Par’s work were infeasible.As we stated previously, feasibility must reflect the strong sense of thepractical implicit in the OSHA standards.\u00a0 The question of whether a means ofprotection is infeasible must be answered in light of the practical realities of theparticular workplace.\u00a0 Looking at the evidence presented concerning each stage ofDun-Par’s operations, we find that Dun-Par established by a preponderance of the evidencethat there was no feasible way to comply with section 1926.500(d)(1).\u00a0 Therefore, weuphold Dun-Par’s affirmative defense that guardrails were infeasible.The Secretary alternatively charged that safety belts could be used at theworkplace.\u00a0 Dun-Par maintained that because its employees needed to move about theworksite freely, safety belts would not be feasible.\u00a0 In Granite City TerminalsCorp., 86 OSAHRC___,12 BNA OSHC 1741 & n.10, 1986 CCH OSHD ? 27,547, p. 35,775(No. 83-882-S), the Commission held that when an employer is cited under a generalstandard, such as section 1926.28(a), which does not specify a particular method ofcompliance, the Secretary must prove that there is a feasible means of complying with thestandard.[[18]]\u00a0 The Secretary, then, has the burden of proving that safety beltswere feasible at the Excelsior Springs worksite.After weighing the testimony presented at the hearing and considering thepractical realities of the workplace, we find that the Secretary presented no evidenceconcerning how the safety belts would actually be used at the workplace beyond thecompliance officer’s bare claim that safety belts were feasible.\u00a0 On the other hand,Dun-Par presented specific testimony which established that safety belts were infeasible.\u00a0 Mr. Dunn, who had much more experience with concrete formwork than the complianceofficer, explained the need for Dun-Par workers to move freely about the work area, oftenmoving up and down ladders.Although we uphold Dun-Par’s infeasibility defense with respect to guardrails andfind that the Secretary failed to establish the feasibility of safety belts, we do not yetvacate the citation.\u00a0 As we discussed at some length above, when an employer arguesthat compliance with a cited standard is infeasible, the Secretary has the burden ofpersuasion to establish that a feasible alternative means of protection existed and theemployer did not use it.\u00a0 The Secretary, of course, was not on notice that he had theburden of establishing a feasible alternative means of protection and so produced verylittle evidence concerning any alternative methods.\u00a0 Similarly, the Secretary was notthen on notice that he bore a burden of proving the feasibility of safety belts.\u00a0 TheSecretary will therefore be granted an opportunity to adduce additional evidence on thefeasibility of safety belts and to amend his pleadings to allege that Dun-Par failed touse feasible alternative means of protection.Accordingly, the citation is vacated unless the Secretary, within ten days fromthe issuance of this decision, moves that this case be remanded to permit him to adduceadditional evidence on the feasibility of safety belts, or to amend his pleadings toallege that Dun-Par failed to use specific feasible alternative means of protection, andto adduce additional evidence concerning those matters.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JUL 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.\”\u00a0 I also agreethat when an employer raises the infeasibility defense it is the Secretary’s burden toplead and prove the alternative means of protection that the employer should haveutilized.\u00a0 Since we have substantially altered respective burdens of persuasion andgoing forward with the evidence where infeasibility is raised as a defense, I would add abrief explanation of how the defense will work from a procedural standpoint.In a typical case the Secretary will allege in his complaint that the employer hasviolated a certain standard.\u00a0 The employer will then raise the affirmative defense ofinfeasibility in his answer.\u00a0 At that point the Secretary is on notice that he mayhave to prove there were alternative measures the employer could and should have used.\u00a0 Since, as we have noted, the Secretary has peculiar knowledge of the availablealternative means of protection, and especially those upon which he may offer evidence attrial, he should amend his complaint to allege those alternative measures the employershould have taken if, in fact, compliance with the cited standard is infeasible.\u00a0 Inthis 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 simply infeasible. \u00a0Since the Secretary did not know it was his burden to allege and prove alternative meansof protection, we agree that the Secretary should be afforded the opportunity to do sonow.\u00a0 It is at this point, however, that I afforded the opportunity to do so now.\u00a0 It is at this point, however, that I part company with the majority.\u00a0 I differwith the majority as to what alternative measures the Secretary may propose.\u00a0 Underthe majority view, once the infeasibility defense is raised the Secretary may advocate anyfeasible alternative means of protection, even if those alternative measures are containedin inapplicable standards, or standards that are preempted under 29 C.F.R. 1910.5(c) bymore specific but uncited standards, or are not specified in any standard at all.Our holding that the burden of pleading and proving alternative measures properlyrests on the Secretary is founded on the due process concept that the employer should havefair notice of exactly what the Secretary alleges the employer should have done.\u00a0 Itis manifestly unfair to require the employer to be prepared to prove the unavailability ofall possible alternative measures that could be suggested by the Secretary’s witnesses attrial.\u00a0 It seems to me that if due process principles of notice and fairness precludethe imposition of ad hoc alternative measures at trial, those same principlespreclude the imposition of ad hoc alternative measures–i.e., measures notrequired by a standard or recognized under the general duty clause–at any time. \u00a0That the majority will now require the Secretary to apprise the employer of these adhoc alternative measures in advance of trial does not change the fact that theemployer may still be held in violation of the Act for not taking measures that are notcalled for in the standards promulgated under section 5(a)(2) or under the general dutyclause, section 5(a)(1).It goes without saying that the Secretary is solely responsible for writingstandards and regulations to establish an employer’s compliance duties.\u00a0 In adoptingthese standards, the Secretary is required to follow the rulemaking provisions set forthin section 6 of the Act, 29 U.S.C. ? 655.\u00a0 These standards primarily define theemployer’s duty under section 5(a) of the Act, for it is only when no standards apply thatany employer is required to comply with the Act’s general duty clause, which requiressteps against \”recognized hazards that are causing or are likely to cause death orserious physical harm….\”\u00a0 Section 5(a)(1), 29 U.S.C. ? 654(a)(1).\u00a0 Seegenerally 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 and limit theduties of employers.\u00a0 In adopting subsection 5(a)(2), Congress rejected theWalsh-Healey Act’s general criterion of \”unsanitary or hazardous or dangerous\”and made standards the primary focus of an employer’s duty.\u00a0 American Can Co., 83OSAHRC 5\/A2, 10 BNA OSHC 1305, 1312, 1982 CCH OSHD ? 25,899, p. 32,415 (No. 76-5162,1982).\u00a0 Although Congress stated a general duty in subsection 5(a)(1), it intendedthat that provision operate only when a standard did not.\u00a0 Congress also made thegeneral duty clause more limited than the Walsh-Healey Act’s general criterion, for itlimited the employer’s duty to avoiding only \”recognized\” hazards that are\”causing or likely to cause death or serious physical harm,\” and to takingfeasible steps against them.[[19]]The majority’s \”available alternative protective measures\” doctrine isout of step with this scheme.\u00a0 The measures it requires need not be measures that areonly specified in inapplicable or pre-empted standards, or not required by the standardsat all.\u00a0 This effectively expands the compliance duties imposed on employers; theyare required to comply with standards that do not apply or do not exist, or, stateddifferently, with requirements that have not been imposed beforehand by the Secretary,whose authority it is to establish or modify standards.\u00a0 See, e.g., LisbonContractors, 84 OSAHRC 19\/A2, 11 BNA OSHC 1971, 1974, 1984 CCH OSHD ? 26,924 (No.80-97, 1984); Schwarz-Jordan, 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).\u00a0 The majority’s view is based on the idea that if the employercannot feasibly comply with the applicable standard he must do \”something.\”\u00a0 The problem with this is that the Secretary’s view of what alternative measures theemployer should take maybe different from the employer’s.\u00a0 The employer thereforecannot know whether 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 of problem foremployers.\u00a0 To comport with the due process clause of the Fifth Amendment to theConstitution, standards must provide employers with fair notice of their complianceresponsibilities.\u00a0 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).\u00a0 To assure that employers receive such notice, standards mustnot be interpreted to impose duties that their plain meaning does not support.\u00a0 SeeDiamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976).\u00a0 Under the majority’sview the duties imposed ad hoc by the alternative measures doctrine may bear norelationship to the plain words of any cited standard.\u00a0 The employer thus hasno fair notice of what it is he must do to be in compliance with the Act until afterhe is cited for violations.For these reasons, I would not allow the Secretary to impose alternative measuresthat are not required by any standard or are beyond the scope of the general duty clause.\u00a0\u00a0The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).[Footnotes]\u00a0[[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 adjacent floor orground level shall be guarded by a standard railing, or the equivalent, as specified inparagraph (f)(1)(i) of this section, on all open sides, except where there is entrance toa ramp, stairway, or fixed ladder.\u00a0 The railing shall be provided with a standardtoeboard wherever, beneath the open sides, persons can press, or there is movingmachinery, or there is equipment with which falling materials could create a hazard.[[2]]The standard provides:? 1926.28 Personal protective equipment.(a) The employer is responsible for requiring the wearing of appropriate personalequipment in all operations where there this part indicates the need for using suchequipment 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 (6th Cir. March 14, 1986).[[3]] A subsidiary question in this case is whether the Commission hasjurisdiction to address the merits of the citation items.\u00a0 After Judge Dixon’sdecision, Dun-Par petitioned for review on several issues.\u00a0 However, formerCommissioner Barnako directed review on several issues.\u00a0 However, former CommissionerBarnako directed review on the sole question of the penalty.\u00a0 The Commission foundthe penalty assessment was in error and remanded the case to Judge Dixon.\u00a0 Dun-ParEngineered Form Co., 84 OSHARC___, 11 BNA OSHC 1912, 1984 CCH OSHD ? 26,883 (No.79-2553, 1984).\u00a0 On remand, the judge lowered the penalty.\u00a0 Dun-Par againpetitioned for review of several issues, not directed for review the merits of thiscitation because the citation items became final orders of the Commission in 1980, whenDun-Par petitioned for review of several issues, and only the question of the penalty wasdirected for review.As the Commission noted in Hamilton Die Cast, Inc., 86 OSAHRC___, 12 BNAOSHC 1797, 1986 CCH OSHD ? 27,576 (No. 83-308, 1986), when the Commission directs anyportion of a case for review, the entire judge’s report is before the Commission, unless acitation item is specifically severed and made a final order under rule 54(b) of theFederal Rules of Civil Procedure.\u00a0 Therefore, when former Commissioner Barnakodirected only the question of the penalty for review, the item alleging that Dun-Parviolated sections 1926.500(d)(1) and 1926.28(a) did not become the final order of theCommission.\u00a0 The issues of the feasibility of guardrails and safety belts could havebeen addressed in the Commission’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); FaultlessDivision, Bliss & Laughlin Industries Inc. v. Secretary of Labor, 674 F.2d 1177,1189-90 (7th Cir. 1982); Southern Colorado 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 (1stCir. 1978).\u00a0 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.2d 439, 440-1 (5th Cir. 1977).Indeed, it has been noted that, \”[t]o impose on an employer the burden ofproving impossibility is to impose a burden that is unachievable,\” AmericanLuggage 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 the Occupational Safetyand Health Act of 1970, 146 (Comm. Print. 1971) (\”However, as a recent Departmentof Labor study has shown, a large proportion of the voluntary standards are seriouslyout-of-date.\”)[[7]] Remarks of D. Peyton, quoted in C. Musacchio, \”The Power PressFlap: Will it Reshape Standards Setting?,\”\u00a0 35 Occupational Hazards 107,108 (Oct. 1973).\u00a0 See generally R. Hamilton, \”The Role of NongovernmentalStandards in the L. Rev. 1329, 1346 n. 40, 1350 & n. 52, 1449 (1978) (hereinaftercited as \”Hamilton\”).\u00a0 See also M. Rothstein, \”OSHA After TenYears: A Review and Some Proposed Reforms,\” 34 Vanderbilt L. Rev. 71, 73-74 (1981)(\”Most of the difficulties with national consensus standards can be traced to thefact that they were privately adopted, optional measures.\u00a0 Many…were poorlydrafted, [or] extremely general….\u00a0 Other[s]…were advisory, directory, orprecatory and were never intended to be given binding effect.\”).[[8]] R. Morey, \”Mandatory Occupational Safety and Health Standards–SomeLegal Problems,\” 38 Law & Contemp. Probs. 584, 588 (1974) (footnote omitted).\u00a0 See also Hamilton at 1393 (erratic coverage of private standards becausethey \”were often not written to be mandatory….\”).[[9]] E.g., A. Reis, \”Three Years of OSHA: The View from Within,\”98 Monthly Labor Rev. 35-36 (1975) (\”The consensus standards were not written to havethe force of law…\u00a0 The problem faced by OSHA was to revise these standards in amanner that made them suitable for enforcement….\”); R. Moran, \”OccupationalSafety and Health Standards as Federal Law: The Hazards of Haste,\” 15 Wm. & MaryL. Rev. 777, 786 (1974) (\”the voluntary nature of ANSI standards often resulted intheir idealization.\”); 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 for optimalworkplace safety and health without any idea that they would or should become law. \u00a0And they were not drafted by industry consensus but frequently by representatives ofselected industries for those industries. …All of industry was not represented on allcommittees nor did other industries object to the standards as published because suchstandards were of no concern to them.[[10]] According to the then managing director of ANSI, \”some 180 AmericanNational Standards were adopted in Walsh-Healey Public Contract Act Regulations issued bythe Secretary of Labor in May 1969.\”\u00a0 Occupational Safety and Health Act,1970: Hearings on S.2193 and S.2788 Before the Subcomm. on Labor of the SenateComm. on Labor and Public Welfare, 91st Cong., 1st & 2d Sess. 461 (1969-70)(statement of D. Peyton); see also id. at 150-52 (Department of Labor \”adoptedeight or nine [ANSI health] standards, under their Walsh-Healey health standards were froma non-consensus organization, the American Conference of Governmental IndustrialHygienists) (statement by M. Key, director of Bureau of Occupational Safety and Health,Department of Health, Education and Welfare).\u00a0 See also Bureau of Labor Standards,Dept. of Labor, Status of Safety Standards, 4-5 (1968) (Labor Departmentproposed adoption of consensus standards in 1968 under Walsh-Healey Act; adopted them in1967 under Service Contract Act.)\u00a0 The Construction Safety Act standards that appearin the 1972 edition of the Code of Federal Regulations incorporated 33 ANSI and NFPAstandards by reference, while other standards, including entire subparts, were lifted withonly some changes from ANSI standards.\u00a0 For example, the standard 1518.500(d)(1), see36 Fed. Reg. 25232 (Dec. 30, 1971)–was derived with only minor changes from ANSIA.12.1–1967, Safety Requirements for Floor and Wall Openings, Railings, and Toeboards? 5.1, p. 9.\u00a0 This and other derivations have been noted by the courts of appealsand the Commission.\u00a0 See Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 650 &n. 12 (5th Cir. 1976) (noting derivation of section 1926.500(d)(1)); L.R. Willson &Sons v. OSHRC, 698 F.2d 507, 515 (D.C. Cir. 1983) (derivation of section1926.450(a)(5) from ANSI A14.13–1956).[[11]] Indeed, the standard cited and applied in this case has often given rise tothe protest by cited employers that necessary work cannot be done with the guardrails inplace.\u00a0 E.g., Robert W. Setterlin & Sons, Co., 76 OSAHRC 53\/D8, 4BNA OSHC 1214, 1217, 1975-76 CCH OSHD ? 20,682, p. 24,774 (No. 7377, 1976); UniversalSheet Metal Corp., 2 BNA OSHC at 1062, 1973-74 CCH OSHD at pp. 22,340-41.[[12]] The Eighth Circuit’s full discussion of the inflexible application of animpossibility standard is as follows:While we are mindful of the broad scope and remedial purposes of the OccupationalSafety and Health Review Act, we are of the opinion that some modicum of reasonablenessand common sense is implied.\u00a0 There is a point at which the impracticality of therequirement voids its effectiveness and that point has been reached when to erect anentire wall, a project said take approximately two hours, petitioner must begin an endlessspiral of tasks consisting of abatement activities which necessitate further protectivedevices, i.e., guardrail to erect wall, scaffold to erect guardrail, safety devices toerect scaffold, etc.\u00a0 We agree with the dissent that some demarcation line must bedrawn between that which is genuinely aimed at the promotion of safety and health and thatwhich, 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 and medicalrecords); ? 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);? 1910.1029(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.\u00a0 In exploring the basis for theinfeasibility defense its predecessor, the impossibility defense, we have consideredwhether the availability of procedures for seeking permanent and temporary variances fromthe Secretary under sections 6(d) and 6(b)(6)(A) of the Act, 29 U.S.C. ? 655(d) and(b)(6)(A), should lead the Commission to hold that no defense is available at all. \u00a0Like our predecessors, we conclude that availability of a variance procedure is of noconsequence.\u00a0 It bears emphasis that infeasibility or even difficulty of complianceis irrelevant in a permanent variance proceeding.\u00a0 According to section 6(d), thesole criterion is whether the means used by the employer \”will provideemployment…as safe and healthful as those which would prevail if he complied with thestandard.\”\u00a0 The unstated premise if the permanent variance procedure is that thestandard was intended to apply and operate literally and that some means of providing asafe and healthful workplace do exist.\u00a0 The entire point of the infeasibility defenseis, however, that sometimes this premise does not obtain–that the standard was notintended to literally apply or that means of compliance do not exist.\u00a0 As we havesaid, however, the nature of the standards and the structure of the Act require that somemeans be available for addressing those concerns.\u00a0 Finally, the temporary variance isnot available once the effective date of the standard has passed.\u00a0 See section6(b)(6)(A)(i).\u00a0 As the D.C. Circuit stated when it recognized the infeasibilitydefense for a section 6(b) standard, \”[t]hese variances are therefore useless to theemployer who claims that he can find no practical way of meeting the health and safetydemands of an OSHA standard….\”\u00a0 United Steelworkers v. Marshall, 647F.2d 1189, 1268 (D.C. Cir. 1980). [[15]] Courts have allowed administrative agencies considerable discretion inplacing burdens of persuasion.\u00a0 See N.L.R.B. v. Transportation Management Corp.,462 U.S. 393 (1983); Zurn Industries v. N.L.R.B., 680 F.2d 683 (9th Cir. 1982) cert.denied, 459 U.S. 1198 (1983); N.R.L.B. v. Fixtures Manufacturing Corp., 669F.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, it has upheldgeneral standards against challenges that hey were unconstitutionally vague for failure toprovide employees with reasonable notice of what is required.\u00a0 See Ryder TruckLines, 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 (5th Cir.1978), upholding 29 C.F.R. ? 1926.28(a) (\”We conclude…that its requirements arenot unforeseeable if the standard is read to require only those protective measures whichthe knowledge and experience of the employer’s industry, which the employer is presumed toshare, would clearly deem appropriate under the circumstances.\”)[[18]] Several circuits of the Courts of Appeals have held that in order tosatisfy due process the Secretary must prove that there is a feasible method of complyingwith the standard, if the standard does not specify a means compliance.\u00a0 See L.R.Willson & Sons, Inc. v. OSHRC, 698 F.2d 507 (D.C. Cir. 1983); Modern Drop ForgeCo. v. Secretary of Labor, 683 F.2d 1105 (7th Cir. 1982); Voegle Co. v. OSHRC,625 F.2d 1075 (3d 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).”