“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5769 K & T STEEL CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 24, 1976?DECISIONBEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.\u00a0CLEARY, Commissioner:\u00a0Thedecision of administrative Law Judge Thomas J. Donegan was rendered on January30, 1975. K & T Steel Corporation, the respondent employer, petitioned forreview of the Judge?s decision by the full Commission. An order for review wasissued by Commissioner Moran. Although the order for review does not refer tothe petition, the issues described therein parallel closely to those raised bythe petition. The decision discusses the issues as framed and argued by thepetitioner. Essentially, the issues concern: (1) the application of a generalmachine-guarding standard to a hydraulic press brake and a plate rollingmachine; (2) the validity of the standard in light of assertions of vaguenessand unlawful adoption; and (3) an asserted impossibility defense.Respondent?smanufacturing activities include structural and miscellaneous steelfabrication, reinforcing bar fabrication and tank fabrication. On November 7,1973, respondent?s workplace was inspected by an OSHA compliance officer. As aresult of this inspection two citations were issued. The first citation was notcontested. The second citation alleged a violation that grouped together threealleged infractions of 29 CFR ? 1910.212(a)(3)(ii)[1]for failure to provide point-of-operation guarding on three separate machines:Thethree machines are: (1) an HTC hydraulic press brake; (2) a plate rollingmachine used to roll barrels and metal stock; and (3) a Mubea ironworker.Respondent admitted the violation as to the ironworker. Respondent timelycontested the citation as to the remaining two machines and as to the proposedpenalty of $550.JudgeDonegan held that 29 CFR ? 1910.212(a)(3)(ii) was applicable to the machinesinvolved and that respondent violated the standard by failing to providepoint-of-operation guarding on the machines. In determining the appropriatepenalty, the Judge found that the gravity of the violation was low due to thelimited amount of time these machines were in operation each day. Consideringthe good faith of the respondent and the absence of prior injuries, he assesseda penalty of $150.Forthe reasons that follow we affirm the decision of the Judge finding respondentin violation of the Act insofar as it is consistent with this opinion.Respondentargues that the exclusion of press brakes and hydraulic power presses in 29 CFR? 1910.217(5)[2] precludes the citation ofsuch hydraulic press brakes under section 1910.212(a)(3)(ii). This argument wasrejected by the Commission in Irvington Moore, No. 3116 (April 7, 1975)16 OSAHRC 608. For the reasons expressed in that decision it also fails here.Respondentin its brief before the Commission argues that 29 CFR ? 1910.212(a)(3)(ii) wasinvalidly enacted. This issue was not raised at the hearing by respondent. Inany event, we reject the contentions. Respondent relies upon the decision ofAdministrative Law Judge Garl Watkins in Western Steel Mfg. Co., No.3528 (October 8, 1974) (Administrative Law Judge) review ordered, November 6,1974, holding 29 CFR ? 1910.212(a)(3)(ii) invalid because of the form of itsenactment. We reject the contentions for the reasons stated in our decision in Diebold,Inc., Nos. 6767, 7721 & 9496 (January 22, 1976).Respondentnext argues that section 1910.212(a)(3)(ii) is unenforceably vague.[3]We reject the argument. The performance required by the standard is clearenough. Diebold, Inc., supra.Itis undisputed that neither of these machines was equipped with anypoint-of-operation guards. Therefore, if the operation of these machinesexposes an employee to injury, a violation of 29 CFR ? 1910.212(a)(3)(ii) hasoccurred. Buckeye Industries, Inc., No. 8454 (December 22, 1975).Thatthe operation of both the press brake and the plate rolling machine exposedemployees to injury is clear. The hazards to which the employees were exposedcan best be identified by a description of the processes involved in theoperation of each of these machines.Thepress brake is used for bending sheet metal through the action of an upper dieor ram descending until it has pressed the sheet metal inserted between the twodies by the employees into the desired form or shape. Up to 200 tons ofpressure can be exerted by this machine. The operator testified that he standsapproximately 18\u2033 from the front of the machine and that his fingers comewithin 2\u2033 from the bottom die during the cycle. An assistant stands oneto two feet from the machine and his hands come as close as 1\u2033 from thebottom die. A safety witness testified that if the fingers or hands of theseemployees remained in the area between the two dies as the ram descended,severe injuries in the nature of abrasions, contusions, amputations, and simpleand compound fractures could result.Theplate rolling machine is used to form flat metal sheets into various sizedcylindrical tanks. The rollers are eight inches in diameter and eight feet inlength. They revolve at a speed of ten revolutions per minute during theoperating cycle. The operator stands at arm?s length from the machine and feedsthe plates into the rollers. His hands come as close as 6\u2033 to the pointof entry between the rollers. The safety expert testified that if the fingersor hands of the operator were to get caught between the rollers, severecrushing injuries and multiple fractures could occur.Inview of the above-described hazards to which employees are exposed during theoperation of these machines, the failure of respondent to provide appropriatedevices to guard against such hazards is a clear violation of ?1910.212(a)(3)(ii). Sheet Metal Specialty Co., No. 5022 (April 22, 1975)17 OSAHRC 212.Asa final defense respondent argues that it cannot be penalized fornon-compliance as it cannot possibly comply with this standard because thereexist no appropriate guards with which to equip these machines.[4]Theevidence clearly shows the feasibility of equipping respondent?s press brakeswith various types of guarding devices. Respondent does not deny that its pressbrake could be equipped with such guards, but asserts that because it performscustom jobs rather than repetitive production work, such guards could not beconveniently used. Even if proved, the fact that it is less convenient to usepoint-of-operation guards during a work process does not meet the level ofproof necessary to establish an impossibility of compliance defense. SheetMetal Specialty Co., No. 5022 (April 22, 1975) 17 OSAHRC 212; Garrison& Associates, No. 4235 (April 22, 1975) 17 OSAHRC 188.Neitherhas respondent established this defense as to the plate rolling machine. It arguesthat there are no existing guards that can prevent what the standard literallyprohibits, i.e., the operator from having any part of his body in the dangerzone during the operating cycle. Its evidence on this issue consisted ofstatements made by the president of the company that the machine was not soldwith point-of-operation guards; that the manufacturer advised him that nonewere available; and that to the best of his knowledge other similar machines inthe area were not equipped with any such guards.[5]Thisevidence also falls far short of preponderant. Something more than unsupportedassertions that no appropriate guards are available is needed.[6]Forthese reasons the Judge?s decision finding respondent in violation of 29 CFR ?\u00a01910.212(a)(3)(ii)is affirmed.Inassessing a penalty the Judge found that the gravity of the violation was lowdue to the limited amount of time these machines were in operation each day andtaking into consideration the good faith of the respondent and the lack ofprevious violations, he assessed a penalty of $150. Having examined the recordin its entirety and having given the factors specified in section 17(j) of theAct their due consideration, we agree.Accordingly,the citation for a serious violation of 29 CFR ? 1910.212(a)(3)(ii) is affirmedand a penalty of $150 assessed. It is so ORDERED.?FOR THECOMMISSION:?William S.McLaughlinExecutiveSecretaryDATED: FEB 24,1976?MORAN,Commissioner, Dissenting:Forthe reasons I stated in Secretary v. Irvington Moore, Division of U.S.Natural Resources, Inc., 16 OSAHRC 608, 612 (1975), and Secretary v.Gem-Top Mfg., Inc., 16 OSAHRC 591 (1975), the portion of the citationpertaining to the respondent?s HTC hydraulic press brake should be vacatedbecause 29 C.F.R. ? 1910.217 rather than 29 C.F.R. ?\u00a01910.212(a)(3)(ii)applies to press brakes.Likewise,on the record in this case, a violation based upon noncompliance with ?\u00a01910.212(a)(3)(ii)cannot be established as to the unguarded plate rolling machine. That standardspecifically requires that:?The guarding deviceshall be in conformity with any appropriate standards therefor, or, in theabsence of applicable specific standards, shall be so designed and constructedas to prevent the operator from having any part of his body in the danger zoneduring the operating cycle.?\u00a0Themajority decision misplaces the burden of proof in this regard. The standardclearly requires the complainant to establish that there was an appropriatestandard prescribing a particular guarding device or that one could be designedand constructed to provide the protection specified in ? 1910.212(a)(3)(ii).The complainant failed to prove either.Furthermore,despite what my colleagues say, the record clearly establishes that no guardcould be used which would comply with this requirement. Respondent?s presidenttestified that the manufacturer of the plate roller had informed him no suchguards were available. In corroboration thereof, it was established that othercompanies in the area also were not using guards. Moreover, even thoughcomplainant?s witness, a state director of safety and fire prevention,enumerated various methods of guarding the plate roller, he also admitted thatall of those particular methods would not prevent exposure of the operator?sbody to the danger zone.Byaffirming a violation when compliance is not possible, Messrs. Barnako andCleary have ignored substantial Commission precedent. See Secretary v.Underhill Construction Corp., 15 OSAHRC 695 (1975); Secretary v.Universal Sheet Metal Corporation, 9 OSAHRC 742, 743 (1974); Secretaryv. W. B. Meredith II, Inc., 9 OSAHRC 245, 246 (1974); Secretary v. J. H.Baxter and Company, 4 OSAHRC 496, 506 (1973). They have also penalized thisrespondent for failing to do the impossible.Thepurpose of this law is not to penalize employers?but to reduce work accidentsand injuries. As Dr. Morton Corn, Assistant Secretary of Labor for OccupationalSafety and Health stated as he assumed that office on December 2, 1975:?Punitive measures alonewill not bring about major changes in occupational safety and health in theU.S.?DeputyAssistant Secretary of Labor Marshall L. Miller made a similar but morepositive statement on January 27, 1976 when he said:?The best way toreduce hazards . . . is to educate people in the hazards involved and thenecessary measures to avoid those hazards.??Whatare the necessary measures to avoid the hazards which my colleagues have foundin this case? They don?t say.[7]So what has been accomplished for workplace safety as a result of theseproceedings against this respondent? Not a thing.Inmy opinion Messrs. Barnako and Cleary have, with this decision, contributed tothe problems which have plagued the implementation of this Act and which Dr.Corn and his associates are apparently attempting to overcome. These wererather succinctly described by former Secretary of Labor John T. Dunlop when hesaid on August 7, 1975:?Thepresent procedures are aimed at maximizing antagonisms.? \u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5769 K & T STEEL CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0Final Date Order: March 03, 1975?DECISION AND ORDERAppearances:For the Complainant: Malcolm R.Trifon, Attorney Office of the Solicitor U. S. Department of Labor 450 GoldenGate Avenue, Box 36017 10404 Federal Building San Francisco, California 94102\u00a0For the Respondent: Robert M.Harwood, Attorney Benoit, Alexander & Harwood Twin Falls Bank & TrustBldg. P. O. Box 366 Twin Falls, Idaho 83301\u00a0Donegan, Judge, OSAHRC:Thisis a proceeding pursuant to section 10(c) of the Occupational Safety and HealthAct of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to asthe Act.)TheRespondent had under its control and was operating a steel fabricating plant atTwin Falls, Idaho on November 7, 1973, when an OSHA compliance officerinspected this place of employment.Asa result of this inspection, a citation number 1 for alleged non-seriousviolations (6 items) and a citation number 2 for all alleged serious violation,involving three machines, were issued to the Respondent, on November 27, 1973,by the Complainant.Ina notification of proposed penalty issued to the Respondent on the same date,the Complainant proposed that no penalties be assessed for the allegednon-serious violations (6 items) of citation number 1 and that $500 be assessedfor the serious violation alleged in citation number 2.TheRespondent timely contested that allegation that the hydraulic press brake (2)and the plate rolling machine (3) were in violation of the standard as chargedin citation number 2 for a serious violation. The allegation in this citationthat the Mubea Ironworker (1) violated this standard was not contested by theRespondent.Citationnumber 2 for a serious violation alleges that the Respondent violated the Actby failing to comply with 29 CFR 1910.212(a)(3)(ii) as follows:?(1) A MubeaIronworker, Serial #KBL 16(2) One HTChydraulic press brake, Serial #371462, located in the tank bay is not equippedwith point of operation guards.(3) A plate rollingmachine, located in the tank bay, is not provided with a guard at the point ofoperation area between the two feed rolls; which would prevent employees? handsfrom coming in contact with these rolls.?THE ABOVE THREE(3) INSTANCES OF FAILURE TO PROVIDE POINT OF OPERATION GUARDS, ANY ONE OF WHICHCOULD ALONE BE CONSIDERED SERIOUS, HAVE BEEN GROUPED FOR CITATION AND PENALTYPURPOSES TO FROM THIS ONE ALLEGED SERIOUS VIOLATION.?Thestandard which is alleged to have been violated in citation number 2 providesas follows:?29 CFR1910.212(a)(3)(ii)? 1910.212 Generalrequirements for all machines.(a) Machineguarding.(3) Point ofoperation guarding.(ii) The point ofoperation of machines whose operation exposes an employee to injury, shall beguarded. The guarding device shall be in conformity with any appropriatestandards therefor, or, in the absence of applicable specific standards, shallbe so designed and constructed as to prevent the operator from having any partof his body in the danger cone during the operating cycle.??Acomplaint was filed on January 3, 1974. The complaint (paragraph IX) amends thedescription of the violation alleged in citation number 2 for the purpose ofadding the phrase, ?the operation of each of which exposed an employee toinjury.? This amendment was allowed under Commission Rule 33(a)(3).TheRespondent answered the complaint with a letter dated January 14, 1974, signedby the President of the Respondent Corporation, which denied that the Act hadbeen violated as alleged in the complaint.TheComplainant filed a motion on April 1, 1974 to amend the complaint. An Orderdenying this motion was issued by this Judge on April 16, 1974.TheComplainant filed a request for admissions on March 21, 1974. In a letter[8], dated April 17, 1974, the Respondent expressed agreement with all therequests for admissions except item no. 5. This item states that the penaltyproposed for the non-contested violation involving the Mubea Ironworker was notcontested. At the hearing the Complainant agreed that item no. 5 of the requestfor admissions was in error and that the proposed penalty concerning the MubeaIronworker non-contested violation was in issue (T. 5?7).Noaffected employees or representatives of affected employees requested leave tointervene or have elected to participate in this proceeding as a party.TheComplainant and the Respondent have submitted briefs in this case.ISSUESAND FINDINGSBeforeevidence was introduced at the hearing, the Respondent moved to dismiss the case,contending that the Act and regulations at issue violate the Fifth Amendment ofthe Constitution (T. 8?9, 246).TheJudge ruled on this motion, holding that he did not have jurisdiction to decidethe issue of the constitutionality of the Act[9](T. 10?12, 247).TheRespondent also made motions at the hearing to dismiss on the grounds of thevagueness of the standard [29 CFR 1910.212(a)(3)(ii)] allegedly violated, andthat the hydraulic press brake was an excluded machine under 29 CFR1910.217(a)(5)[10] (T. 9?12, 247?251).Rulings were reserved on these motions until this decision.TheRespondent?s contention, that the standard [29 CFR 1910.212(a)(3)(ii)] isunenforceable because of vagueness is concerned with point of operationguarding for all machines.Thestandard prescribes that in the absence of applicable specific standards forguarding, which is the situation in this case, the guarding device shall be sodesigned and constructed as to prevent, in this case, the operators of thehydraulic press brake and the plate rolling machine from having any parts oftheir bodies in the danger zones of these machines during the operating cycle.Thestandard gives fair warning of what is required in the way of guarding bystating that the purpose of guarding is to keep parts of the operator?s bodyout of the danger zone of the machine during the operating cycle.Thestandard is not vague and unenforceable because it does not specify how theguarding shall be accomplished. It would be arbitrary and unreasonable to holdthat the Secretary of Labor must specify the type of guarding that is requiredfor the many different types of machines to which this standard is applicable[11].Itis concluded that this standard [29 CFR 1910.212(a)(3)(ii)] is not vague to theextent that it is unenforceable. The standard is clear as to safety factorsinvolved and an employer is not placed in jeopardy of non-compliance when agood faith attempt is made to comply with the standard.TheRespondent?s contention is rejected that the hydraulic press brake is not inviolation of the standard [29 CFR 1910.212(a)(3)(ii)] because it is an excludedmachine under the requirements for guarding mechanical power presses [29 CFR1910.217(a)(5)]. This exclusion is clearly limited to the requirements of this section(1910.217) and does not apply to the section (1910.212) concerned with point ofoperation guarding for all machines.Itis concluded that the standard [29 CFR 1910.212(a)(3)(ii)], which is alleged tohave been violated, is applicable to the hydraulic press brake as well as theplate rolling machine.Itis concluded from the substantial credible evidence that the points ofoperation of the hydraulic press brake and the plate rolling machine are dangerzones wherein the operators were exposed to injury during the operating cycleof the machines. The points of operation of these machines were not guarded incompliance with the standard alleged to have been violated (T. 17, 18, 49, 53,66, 67, 79, 86, 92?94, 102, 113, 117?119, 128?130, 143, 146, 152, 156, 191,218).Theevidence also sustains a finding that guarding can be applied to the hydraulicpress brake and the plate rolling machine to prevent the operator from havingany part of the body in the danger zones of the points of operation of thesemachines during the operating cycle (T. 175?244).Basedon the testimony, a finding is made that serious injuries in the form ofcrushed hands and fingers with possible resulting amputation could occur fromthe lack of guarding at the point of operation of the press brake if the handsor fingers of the operators should be placed inadvertently between the dies ofthe hydraulic press brake while the ram is descending. It is also found thatthe operator of the plate rolling mill could suffer similar injuries in theevent his hands or clothing came in contact with the rollers of this machine.The procedures followed in operating these machines and a history of noaccidents since they have been in operation at the Respondent?s plant, supportsa conclusion that the probability of an accident occurring is small (T. 17, 18,32, 46, 97, 120, 121, 138, 191?194, 218?219, 254, 256).Theproposed penalty of $500 for the serious violation involving the three machines:1.Mubea Ironworker 2. hydraulic press brake; 3. plate rolling machine) has beencontested and consequently it is necessary to determine whether this penalty isappropriate.Thethree machines are not operated on an assembly line type of production. Theplant is primarily engaged in the type of work which is performed in a job shop(T. 36, 252). The Respondent agreed with paragraphs six and seven of theComplainant?s ?Requests For Admissions? wherein it is stated that the hydraulicpress brake and the plate rolling machine are operated by Respondent?semployees throughout a normal workday on a regular basis. There is no admissionin this regard concerning the Mubea Ironworker.Theemployee who has worked with the Mubea Ironworker, testified that a number ofemployees have access to and use this machine. He did not know if the machineis used every day (T. 168).Thetestimony reflects that the hydraulic press brake was operated about an hour aday (T. 79, 81, 85). The regular operator is assisted by a helper (T. 102,104).Theoperator of the plate rolling machine operates this machine about an hour on anaverage day although sometimes it is operated two hours a day and very rarelyis it operated three hours in a day (T. 132).Afterweighing the available evidence concerning the factors which are relevant to adetermination of the extent of employee exposure to the unguarded points ofoperation of these three machines, it is concluded that the gravity of theserious violation charged in the citation is not of a high order.Atthe time of the inspection, the Respondent had 63 employees of which 40 to 50work in the shop. The Company is in the middle class as to size when comparedwith steel fabricators in the Northwest (T. 15, 260).Theevidence reflects that the Respondent is concerned with safety and merits fullcredit for good faith (T. 21, 253, 255, 256, 258).TheRespondent has no history of previous violations under the Act (T. 21).Afterconsidering the penalty criteria set forth in section 17(j) of the Act,[12]it is determined that it is appropriate to assess a penalty of $150 for theserious violation involving the three machines named in citation number 2.CONCLUSIONSOF LAW1.The Respondent, K & T Steel Corporation, was at all times material to thisproceeding an employer engaged in business affecting interstate commerce withinthe meaning of section 3 of the Act.2.The Occupational Safety and Health Review Commission has jurisdiction over theparties and the subject matter of this proceeding as provided in section 10 ofthe Act.3.The Occupational Safety and Health Review Commission does not have thejurisdictional authority to rule on the issue of the constitutionality of theAct.4.The place of employment maintained by the Respondent at Twin Falls, Idaho wasinspected by an authorized employee of the Secretary of Labor on November 7,1973 in accordance with the requirements of section 8 of the Act.5.The Respondent was in violation of section 5(a)(2) of the Act on November 7,1973. This violation occurred as a result of the hydraulic press brake and theplate rolling machine not being in compliance with 29 CFR 1910.212(a)(3)(ii), aregulation or standard promulgated by the Secretary of Labor as provided insection 6 of the Act.6.This violation involving the hydraulic press brake and the plate rollingmachine was of a serious nature within the meaning of section 17(k) of the Act.7.The civil penalty of $150, which is assessed herein for the serious violationof citation number 2, is assessed pursuant to and as a result of giving dueconsideration to the criteria set forth in section 17(j) of the Act.ORDER??????????? Based on the foregoing findings offact and conclusions of law, it is ORDERED:1.That citation number 2 for a serious violation be, and is hereby affirmed as itapplies to the hydraulic press brake and the plate rolling machine.2.That the proposed penalty of $550 for the serious violation alleged in citationnumber 2 for a serious violation be, and is hereby vacated.??????????? 3. That a civil penalty of $150 be,and is hereby assessed for the serious violation set forth in citation number2.?THOMAS J.DONEGANJudge, OSAHRCDated: January30, 1975Seattle,Washington[1] That standard reads:? 1910.212 General requirements forall machines.(a) Machine guarding.(3) Point ofoperation guarding.(ii) The point ofoperation of machines whose operation exposes an employee to injury, shall beguarded. The guarding device shall be in conformity with any appropriatestandards therefor, or, in the absence of applicable specific standards, shallbe so designed and constructed as to prevent the operator from having any partof his body in the danger zone during the operating cycle.\u00a0[2] That standard reads:? 1910.217Mechanical Power Presses.(a) GeneralRequirements.(5) ExcludedMachines. Press brakes, hydraulic and pneumatic power presses, bulldozers, hotbending and hot metal presses, forging presses and hammers, riveting machinesand similar types of fastener applicators are excluded from the requirements ofthis section.[3]For my own part, I adhere to the view stated in my dissenting opinion in SanteFe Trail Transport. Co., No. 331 (December 18, 1973), rev?d 505 F.2d869 (10th Cir. 1974), that the Commission has no power to declare a standardunenforceable by reason of vagueness.[4]An assertion that compliance with a standard is impossible due to the nature ofthe work being done is, at most, an affirmative defense. Brennan v.O.S.H.R.C. & Underhill Constr. Co., 513 F.2d 1032 (2d Cir. 1975). Anemployer may of course seek a variance from a standard so long as a safetypractice is adopted that provides equal protection for employees.\u00a0[5]The respondent also points to the failure of the Secretary?s safety witness toidentify any existing guarding devices which prevent the operator from havingany part of his body in the danger zone during the operating cycle.\u00a0Inasmuch as impossibility of complianceis at most, an affirmative defense, the Secretary does not have the burden ofshowing that the respondent is able to comply with a cited standard. BuckeyeIndustries, Inc., No. 8454 (December 22, 1975).\u00a0In any event, the Secretary?switness did demonstrate various tripbar or release mechanisms with which theplate rolling machine could be equipped whereby the operator could cause therollers to separate if any part of his body (or clothing) became lodged betweenthe two rollers.\u00a0As respondent?s machine is notequipped with such a device we need not address the question of whether suchrelease devices are sufficient guarding devices under section1910.212(a)(3)(ii).\u00a0[6]It is my separate view that, even if the evidence conclusively established thepresent unavailability of such guards, which it clearly does not, the Secretarycould make allowance for this in prescribing abatement requirements permittingthe development of new safety devices. As the Second Circuit stated in Societyof Plastics Industry, Inc. v. O.S.H.A., 509 F.2d 1301, (2d Cir. 1975), cert.denied 95 S.Ct. 1998 (1975):In the area ofsafety, we wish to emphasize, the Secretary is not restricted by the statusquo. He may raise standards which require improvements in existing technologiesor which require the development of new technology, and he is not limited toissuing standards based solely on devices already fully developed.509 F.2d at 1309(citations omitted).[7]The majority asserts that the machines here involved clearly ?exposed employeesto injury.? They find a violation but do not point to anything which respondentcan feasibly do to reduce that exposure. The record, however, shows thatsomething must be going right, for Judge Donegan specifically found in hisdecision (which is attached hereto as Appendix A):?a history of noaccidents since they have been in operation.?[8]The Complainant received this letter although a copy was not in the record.Prior to the hearing, the Respondent was represented by William Koch, Presidentof K&T Steel Corporation.\u00a0[9]See: Secretary v. Rea Express Co., 2 OSAHRC 959 (RC 1973); Secretaryv. American Smelting and Refining Company, OSAHRC Docket No. 10 (August 17,1973); American Smelting and Refining Company v. OSAHRC 501 F.2d 504(8th Cir 1974).\u00a0[10]29 CFR 1910.217(a)(5) provides.Excluded machines.Press brakes, hydraulic and pneumatic power presses, bulldozers, hot bendingand hot metal presses, forging presses and hammers, riveting machines andsimilar types of fastener applicators are excluded from the requirements ofthis section.[11] See: Secretary v. Consolidated Metal Products, aDivision of Schott Industries, Inc., OSAHRC DOCKET No. 3620 (September 18,1974).[12] Section 17(j) provides:The Commission shall have authority to assess allcivil penalties provided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the business of theemployer being charged, the gravity of the violation, the good faith of theemployer, and the history of previous violations.”