“SECRETARY OF LABOR,Complainant,v.MIAMI INDUSTRIES, INC.,Respondent.OSHRC Docket No. 88-671_DECISION_BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:The primary issue in this case is whether statements and actions byagents of the Occupational Safety and Health Administration (\”OSHA\”)justify vacating a portion of a citation alleging that Miami Industries,Inc. (\”Miami\”) violated the Secretary of Labor’s machine guardingstandard, 29 C.F.R. ? 1910.212(a)(1), [[1\/]] by failing to protect itsemployees from the hazards of inrunning nip points on a series ofrollers that form and shape steel in Miami’s plant. We find that OSHAmisled Miami into believing that a hinged and removable panel guard thatit had installed following an earlier citation was sufficient to complywith the terms of the standard. Accordingly, we conclude that Miami wasdenied fair notice that the Secretary considered its existing panelguards to be inadequate. In addition, we conclude that the factorsnecessary to establish estoppel against the Government are also presenthere. For reasons of both lack of fair notice and estoppel, we vacatethat portion of the citation which alleges that Miami’s existing guardsfailed to provide proper protection to its employees. We affirm theother allegations of the citation._FACTS__A. Background_The facts are largely uncontroverted. Miami manufactures welded steeltubing out of coils of flat steel. After the flat steel is slit intovarious widths depending on the size of the tubing to be made, it thenpasses through a series of rollers, known as a \”tube mill,\” thatgradually form it into a round shape. In order to maintain its highlevel of product quality, Miami’s employees must regularly andfrequently remove small bits of metal and other debris, known as\”pickups,\” from the rollers. Approximately 50 pickups occur in anaverage workday. To remove them, employees hold an emery board,sandpaper, or a file against the roller while it is spinning. Employeeswill also feel for the location of a pickup by pressing their fingersdirectly on the rotating surface of the roller. There is no dispute thatthis essential maintenance procedure can only be conducted effectivelyand efficiently when the rollers are operating. Although mill operatorsare highly trained employees and are instructed to remove pickups fromthe outgoing side of the roller and to place their thumbs on a fixtureso that their hands will not slip, it is uncontroverted that theseemployees are exposed to the hazard of getting caught in and injured byan inrunning nip point when they reach into the area of the rollers inorder to clean them._B. Prior Citation_The facts relating to the fair notice and estoppel issues, arise out ofa previous inspection of Miami’s tube mills on May 4, 1978. Followingthat inspection, OSHA issued a citation alleging that the ingoing nippoints at the \”forming rolls and guide rolls\” were not guarded asrequired by 29 C.F.R. ? 1910.212(a)(1). Miami did not contest thiscitation but rather sought to devise a method of abating the violation.Ronald R. Fox, Miami’s industrial relations manager, testified thatCharles Barrett, the compliance officer who conducted the 1978inspection, was not concerned with any hazard that may have beenpresented to the mill operator during routine operations but rather wasonly concerned that the mill be guarded to protect someone from slippingand falling against the rollers. Fox described his conversation withBarrett regarding a means of accomplishing this objective:Q. When Mr. Barrett was there in May of 1978, was there a discussionwith respect to interlocked barrier guards or secured barrier guards?And, please explain to the Judge those discussions.A. Yes. There was a discussion that the OSHA standard would requireeither a secured barrier guard or an interlocked barrier guard.I informed him at the time that we couldn’t put interlocked barrierguards in because we couldn’t get in to polish the rolls and take thepickups off the rolls which is necessary for us, again, to perform ifwe’re going to produce the quality of tubing that we do.With respect to fixed barrier guards, he said that if we could putsomething up, again, to keep someone from falling into that, that wouldbe satisfactory.According to Fox, Barrett also mentioned four tubing manufacturers inMiami’s area who had guards, so that Miami could see for itself howguards could be installed. Fox made arrangements to visit one of thefour, Armco Steel. An attorney for one of the other companies informedFox that that company in fact did not provide guarding for its mills.Fox did not pursue the other two.The May 1978 citation required that the violation be abated by June 26,1978. Because it was unable to have access to the Armco facility untilJune 16, 1978, and for other reasons, including the effect of summervacations on its work schedule, Miami filed a petition for modification(extension) of the abatement date (\”PMA\”). On June 20, Ronald J. McCann,the area director for the Cincinnati area office which had issued thatcitation, granted the PMA. McCann’s letter stated, in pertinent part, asfollows:Please note that if you use movable barrier guards, they must be eithersecured by fasteners that are not readily removable, or they must beused in conjunction with electrically interlocked devices. Electricallyinterlocked devices must be installed so that when a barrier guard isremoved or opened, the machine will shut down.McCann’s letter also advised Fox, ”[i]f there are any further questionsconcerning this matter, please contact William Murphy at this office.\”Upon his visit to the Armco plant, Fox discovered that Armco had guardsonly at the reels which unwind steel coil at the end of the mill and notfor the rollers themselves. Therefore, even though Barrett was the onewho suggested Armco as a model, the Armco guarding method would not havesatisfied the compliance officer’s concerns. Lacking any specificguarding model to follow, Miami had its engineering staff design aguarding method. As a result, Miami installed a set of four verticalmetal barriers along the walkway in front of the mill where the machineoperators worked. These barriers consisted of an upper and lowersection, each hinged so that it could be swung open to allow access tothe rollers for the performance of maintenance work. These barrierscommenced at a point just past the first set of rollers, such that thefirst set would be exposed regardless of whether the barrier guards werein their closed position. The record does not explain why the guard wasnot installed so as to enclose the first set of rollers.Fox regarded the hinged guard as a secured guard within the meaning ofMcCann’s letter, and therefore acceptable to OSHA, because it could notbe knocked down accidentally and could only be opened by lifting thehinged section up and off its pins. In Fox’s view, the guard was notreadily removable because the only time it would be taken down is whenpickups occurred, and he considered the guard effective because reachinginto a roller is a conscious act, whereas the guard would protect theoperator or anyone in the area from accidental contact. Fox alsotestified that Barrett subsequently gave express approval to the hingedpanel guard device:Again, I communicated with Mr. Barrett the type of hinging mechanismwhich we were going to put on the bottom of the guard which weconsidered and he considered a fixed guard because you have to pick itup and slide it over; and it cannot be knocked down.Q. This is the design of the hinge?A. The hinges of the guard, that’s correct.Q. And you described that to Mr. Barrett?A. Yes.Q. And he said it was satisfactory?A. Yes.Fox also testified that Barrett asked if he could give the blueprintsfor Miami’s guarding design to another company with which OSHA wasworking and that OSHA later referred a second company to Miami for itsguard design. Barrett did not conduct any reinspection of Miami’sfacility after it installed this guard, and Fox did not make anyinquiries of Murphy, whose name was mentioned in the McCann letter ofJune 20. Although Murphy at the time was a supervisor in the areaoffice, McCann’s letter did not indicate Murphy’s identity, and Foxtestified that lie did not know who Murphy was._C. Present Citation_Almost ten years after these events, on January 4, 1988, Dennis Collins,another OSHA compliance officer, conducted an inspection of Miami’splant. Collins’ inspection, which resulted in the citation that isbefore us now, was in response to a complaint that employees wererequired to reach over the existing guards and into the equipment inorder to clean the rollers. While investigating this complaint at theworksite, Collins noticed that there was no guard in place around thefirst set of rollers at the beginning of the mill. He further observedthat the hinged guards were open, thus fully exposing the rollers. Foxtestified that the guards had been lowered to enable the operators toset up or adjust the rollers in preparation for the productionoperation. Fox conceded that when the operators had begun to run themill, they had replaced only the bottom half and not the top half of theguard. Fox also admitted that Miami had difficulty keeping track of thepins used to hold the guards in place. Shortly after Collins mentionedthat the guards were partly opened, Miami’s superintendent got some pinsfrom the machine shop and secured the guards in place.Fox conceded that with the top half down, the guards offered only \”some\”and \”not total\” protection for employees working or walking along thewalkway, but he opined that when the guards are fully closed, they wouldbe completely effective for that purpose. Collins, however, testifiedthat the guards were inadequate because they could be easily opened. InCollins’ opinion, the guards should have been held in place by fasteners\”that are not readily removable by the operator\” or interlocked so thatopening the guard would cause the machinery to shut off. Fox, in turn,testified that Collins’ view was contrary to the position previouslytaken by OSHA, in which OSHA had agreed that it was necessary forMiami’s employees to reach into the machinery in order to clean therollers while the mill was operating.OSHA conducted seven inspections in Miami’s plant between the Barrettinspection in 1978 and the Collins inspection approximately ten yearslater. Until the Collins inspection, however, OSHA had not cited anydeficiencies in the guards installed following the 1978 inspection. Foxexpressly testified that \”it [the guarding] has never been questioneduntil December of 1987, so that certainly led us to believe thateverything was satisfactory.\” Fox, who had been employed with Miami fortwenty-one years, also stated that the only known injury from a nippoint at Miami’s workplace occurred in November 1987, when an employeewas removing a coolant residue from a roller by using the finger of aglove to wipe the roller. The employee’s finger became caught in theroller when he tried to remove the glove. Using a glove in this mannerwas contrary to Miami’s instructions._ISSUES BEFORE THE COMMISSION_The Secretary’s citation consists of two separate items comprisingessentially four different allegations. Item 1(a) of the citation, whichalleges in part that \”the existing guards were not secured in place orinterlocked to ensure their use,\” sets forth the primary focus of thecitation: Miami’s work practice whereby its employees knowingly reachinto the area of the rollers to clean them while the mill was operating.However, the Secretary also was concerned with the exposure of employeesto a hazard at other times when they were not performing these cleaningoperations. Thus, item 1(a) contains a further allegation that employeescould come into contact with the rollers because the guards remainedpartially open while the mill was operating.The third allegation before us is item 1(b), which states that the firstset of rollers had no guard whatever to prevent access to the inrunningnip point.[[2\/]] In that portion of his decision addressing the twolatter allegations, Judge Burroughs found that the first set of rollerswas completely unguarded and that the existing guarding was not fully inplace during the inspection. He also found that the mill was operatingwhile the guards were partly open. Thus, he concluded that employeeswere not protected against accidentally falling into the ingoing nippoints. Since the preponderance of the evidence fully supports thesefindings, and Miami does not dispute them, we affirm these portions ofthe judge’s decision.In that portion of his decision that is vigorously disputed on review,Judge Burroughs further found that the existing guards were not adequateto protect employees during the cleaning process because they would notpreclude employees from having access to the nip points while therollers are operating. He concluded that there were methods availablewhich would give Miami’s employees access to the moving rollers forcleaning purposes while protecting them from exposure to the inrunningnip point itself. However, the judge did not rule on Miami’s contentionthat the Secretary is estopped from requiring any type or method ofguarding other than the existing panel guards.[[3\/]]For the reasons stated herein, we conclude that OSHA’s enforcementactions deprived Miami of fair notice that OSHA considered its existingguarding device to be inadequate and further find that, under thecircumstances in this case, the Secretary is estopped from enforcing thecitation to the extent the citation alleges that the hinged panel guardswere not capable of protecting the employees. Accordingly, we reversethe judge’s decision in part, and we vacate the allegation of item 1(a)that Miami should have provided a secured or interlocked guard.[[4\/]]_DISCUSSION AND ANALYSIS__A. Fair Notice_Generally speaking, an employer cannot be held in violation of the Actif it fails to receive prior fair notice of the conduct required of it._E.g._, _Cardinal Industries_, 14 BNA OSHC 1008, 1011, 1987-90 CCH OSHD? 28,510, p. 37,801 (No. 82-427, 1989). The Commission has previouslyheld that because the standard at issue, ? 1910.212(a)(1), is a generalprovision that by its terms applies to a number of different hazards onall types of machinery, statements by OSHA personnel can affect theemployer’s notice of its obligations under this standard:In view of the general nature of the cited standard and the lack of anyexpress language specifically addressing die casting machines, [theemployer] cannot reasonably be said to have been on notice of arequirement to guard during core pull operations once the Secretary hadinformed [the employer ] that guarding was not needed at such times._Hamilton Die Cast, Inc._, 11 BNA OSHC 2169, 2172, 1984-85 CCH OSHD ?26,983 at p. 34,690 (No. 79-1686, 1984). See Diebold, Inc. v. Marshall,585 F.2d 1327, 1336-37 (6th Cir. 1978) (holding that employer did nothave adequate notice that ? 1910.212 required guarding of its press breaks).In this case, however, the Secretary contends that Barrett’s statementsdid not deprive Miami of notice that OSHA considered its panel guards tobe inadequate. In the Secretary’s view, Fox’s testimony concerningout-of-court statements by Barrett should not be given dispositiveweight because of the possibility that those statements are\”exaggerated, incomplete, taken out of context, or even false, \”citingMorrison-Knudsen, Inc., 13 BNA OSHC 1121, 1124, 1986-87 CCH OSHD ?27,869, p. 36,540 (no. 80-345, 1987). The Secretary further argues thatMiami could not have reasonably relied on Barrett’s statements becauseBarrett did not \”officially\” approve the guard panels in writing anbecause McCann’s letter took precedence over any contrary statementsBarrett may have made indicating approval of the hinged guard. For thereasons set forth below, we reject these contentions._1. Use of Barrett’s Statements_We first address the threshold question of whether Barrett’s oralstatements are entitled to probative value. We emphasize at the outsetthat no issue of credibility is presented. That is, there is nothing inthe record to indicate, nor does secretary contend, that Fox was not acredible witness. Accordingly, we conclude, in the absence of anyshowing or even suggestion to the contrary, that Barrett in fact madethe statements Fox attributed to him. _See Hamilton Die-Cast_, 11 BNAOSHC at 2172 n.2, 1984-85 CCH OSHD at p. 34,689 n.2 (employer’sunrebutted testimony of representations by the Secretary’s agents issufficient to establish that those statements were made). We furthernote that no issue of hearsay is presented. Barrett’s statements wereproperly introduced into evidence as admissions by an opposing partythrough its agent. _Stanbest, Inc._, 11 BNA OSHC 1222, 1227, 1983-84 CCHOSHD ? 26,455, p. 33,621 (No. 76-4355, 1983). In any event, theSecretary does not challenge their admissibility; nor, for that matter,did the Secretary ever request that Barrett be afforded an opportunityto testify. The only question before us is the weight to be assigned toFox’s testimony of Barrett’s statements.Although _Morrison-Knudsen_, on which the Secretary relies, observedthat an out-of-court declaration \”inherently has less probative value\”than the testimony of the declarant himself, that decision deals with anout-of-court statement \”offered to prove the truth of the matter itcontains.\” 13 BNA OSHC at 1123, 1986-87 CCH OSHD at p. 36,540. Thatdecision is therefore inapposite here because the question in this caseis not whether in fact Barrett was being truthful when he indicated thatthe panel guard would be acceptable to OSHA, but rather whetherBarrett’s statements caused Miami to act in a certain manner.[[5\/]] Aswe indicated in Hamilton Die Cast, an employer’s undisputed testimony ofstatements by OSHA personnel is entitled to weight on the issue ofnotice to the employer. _See_ _L.R. Willson & Son, Inc. v. Donovan_, 685F.2d 664, 676 (D.C. Cir. 1982) (statements by compliance officers, whilenot binding, are relevant to whether an employer has adequate notice ofthe conduct required under a standard using broad terminology subject todiffering interpretations). Accordingly, we reject the Secretary’scontention that Barrett’s out-of-court statements do not have probativevalue on the issue of Miami’s notice of its obligations under the standard.The Secretary, however, also argues that in the circumstances presentedhere, Fox did not act reasonably in relying on Barrett’s statements. Wenow turn to that question._2. Reliance_The facts show that Miami relied not only on Barrett’s oral statementsto Fox, but also on the actions and conduct of the area office. Inaddition to his discussions with Fox, in which he told Fox that aparticular method of abatement was acceptable, Barrett asked for Miami’sblueprints so that OSHA could use Miami’s guarding design as a model foranother company. Furthermore, the OSHA area office referred stillanother company to Miami.Furthermore, contrary to the Secretary’s contention, Barrett’sstatements are corroborated, rather than contradicted, by area directorMcCann’s letter. Fox specifically informed Barrett of his concern thatMiami not be precluded from conducting its maintenance operation, whichrequired that the rollers be in motion. Barrett first replied thateither a secured guard or interlocked guard was required and thereafteradvised Fox that the panel guards were considered a fixed guard becausethey could not be removed inadvertently. The first sentence of areadirector McCann’s letter plainly states, consistent with Barrett’sdeclarations to Fox, that movable barrier guards must _either_ besecured so that they are not readily removable or they must beinterlocked. The second sentence states the purpose of an electricallyinterlocked device. While the letter is somewhat ambiguous, reading bothsentences in context Fox could reasonably have concluded that: (1)McCann also considered the hinged panel guard to be an acceptablealternative to an interlocked guard because it was not readily removableand (2) McCann would have required an interlock to shut off power _onlyif_ the panels could have been removed or lowered inadvertently. Sincethere is nothing in McCann’s letter inconsistent with Barrett’sstatements to Fox, we cannot conclude that Fox should have construedMcCann’s letter as rescinding Barrett’s explicit approval of the hingedguard device. The congruity between McCann’s letter and Barrett’sstatements is further corroborated by OSHA’s actions in using Miami’sguard design as a model for other employers.In view of the consistent pattern of conduct by the OSHA area office, weconclude that Miami was entitled to rely on the statements and actionsby the OSHA personnel.[[6\/]] Indeed, because ? 1910.212(a)(1) is a broadstandard covering all hazards presented by the moving parts ofindustrial machinery in general, Miami’s reliance on OSHA’s conduct wasnot only reasonable but necessary in order for Miami to have appropriateguidance on how to protect its operators from the hazard of inrunningnip points. The situation here is identical to that in _Hamilton DieCast_, in which the employer similarly sought the Secretary’s assistancein ascertaining its obligations under the standard, and the Commissionconcluded that the Secretary’s response misled the employer intobelieving that the secretary considered its guarding device to besufficient.The circumstances here are also analogous to the facts in a caserecently decided by the Eighth Circuit, _Ryan Heating Co. v. NLRB_,Daily Lab. Rep. (BNA) No. 170 (8th Cir. Aug. 26, 1991). There anadministrative law judge dismissed an unfair labor practice charge basedon the existing precedent of the National Labor Relations Board(\”Board\”). Subsequently, the Board decided another case in which itreversed the precedent on which the judge in Ryan had relied. On reviewof the judge’s decision, the Board applied its new precedent and ruledthat the employer had committed an unfair labor practice. On appeal, theEighth Circuit declined to enforce the Board’s order, holding that theemployer could not have foreseen the change in the case law and that itsreliance on the prior Board precedent was reasonable:As we have said in the past, the essential demands of fairness requirethat parties like Ryan–who rely on the Board’s rulings when conductingtheir affairs–not \”be left subject to entrapment and branding as theperpetrator of an unfair labor practice\” merely because the Board laterdeparts from its earlier position.Id. at D-2 (quoting _NLRB v. International Bhd. of Teamsters,Local 41_,225 F.2d 343, 348 ((8th Cir. 1955)).Accordingly, while the Commission precedent in _Hamilton Die Cast_ iscontrolling in the circumstances here, the principle of _Ryan Heating_also supports our holding that OSHA did not give Miami fair notice ofany inadequacy in its guard design._B. Estoppel __1. In General_The principle that a party’s actions or conduct may preclude it fromasserting a right or claim to which it would otherwise be entitled isknown as equitable estoppel. This doctrine is intended to ensure thatparties deal with each other in a manner that reflects a fundamental\”consideration of justice and good conscience.\” _United States v.Georgia-Pacific Co._, 421 F.2d 92, 95 (9th Cir. 1970). As an affirmativedefense, equitable estoppel requires a showing that the party to beestopped intends that its conduct will be acted upon by the other partyor acts in such a manner that the other party reasonably believes thatthe first party intends that its actions or conduct be relied on. Id. at96; _Watkins v. United States Army_, 875 F.2d 699, 709 (9th Cir. 1989)(en banc), _cert. denied_, 111 S. Ct. 384 (1990); _Che-Li-Shen v. INS_,749 F.2d 1469 (10th Cir. 1984). A party’s reliance on the actions orconduct of another is reasonable if the party claiming estoppel did notknow nor should have known that the other party’s conduct wasmisleading. As the Supreme Court held in _Heckler v. Community HealthServ.of Crawford County, Inc._, 467 U.S. 51 (1984),\”The truth concerning these material facts must be unknown to the otherparty claiming the benefit of the estoppel, not only at the time of theconduct which amounts to a representation or concealment, but also atthe time when that conduct is acted upon by him. If, at the time when heacted, such party had knowledge of the truth, or had the means by whichwith reasonable diligence he could acquire the knowledge so that itwould be negligence on his part to remain ignorant by not using thosemeans, he cannot claim to have been misled by relying on therepresentation or concealment.\”467 U.S. at 59 n.10 (quoting Restatement (Second) of Torts ? 810 at 219(1979)). In determining whether a party’s reliance on the actions of theother party is reasonable under the Supreme Court’s decision in_Heckler_, we must consider \”the objective reasonableness of thereliance.\” _Richmond v. OPM_, 862 F.2d 294, 300 (Fed. Cir. 1988), _rev’don other grounds_, 110 S.Ct. 2465 (1990).As we have stated above, Miami acted reasonably in relying on OSHA’sconduct at the time the 1978 citation was issued. In addition to relyingon the statements and actions by OSHA personnel regarding the 1978citation, Miami also relied on the fact that OSHA issued no citationsfor machine guarding violations over the succeeding 10-year period,during which OSHA conducted a number of inspections of Miami’s facility.In our view, this reliance was reasonable because Miami couldunderstandably have concluded that the lack of citations for violationof the machine guarding standard over an extensive period of timefollowing the 1978 citation corroborated the statements and actions bythe area office at the time the 1978 citation was issued. We in no wayretreat from our position that simple failure to issue a citationalleging a violation of a particular standard does not in itselfestablish that OSHA considers the employer to be in compliance with thatstandard. _Seibel Modern Mfg. & Welding Corp._, 14 BNA OSHC 1218,1223-24 (No. 83-821, 1991); _Colombian Art Works, Inc._, 10 BNA OSHC1132, 1981 CCH OSHD ? 25,737 (No. 78-29, 1981). Here, however, theabsence of further citations corroborated and was fully consistent withMiami’s prior understanding that the area office regarded its hingedpanel guards as sufficient to comply with the standard. _See Cardinalindustries_, 14 BNA OSHC at 1012, 1987-90 CCH OSHD at p. 37,802 (lack offair notice of any deficiency in abatement measures found where employeradopted abatement method suggested by compliance officer and thereafteron reinspection the Secretary failed to allege a violation).In our view, the facts clearly demonstrate a regular and consistentpattern of conduct over a 10-year period, between the 1978 citation andthe citation now before us, from which Miami was plainly justified inbelieving that OSHA regarded its panel guards to be an appropriate meansof abatement. Since there had never been any injuries attributable tothe guarding, no other circumstances were present that would have putMiami on notice of a defect in its guards. Accordingly, reasonablereliance on the actions and conduct of another party required toestablish estoppel has been shown in this case._2. Estoppel Against the Government_The issue here, however, is not estoppel between two private parties butrather a claim of estoppel by a private party against the Government. Itis well-established that for purposes of estoppel, the Government is notequivalent to a private party. As the Supreme Court has explained,When the Government is unable to enforce the law because the conduct ofits agents has given rise to an estoppel, the interest of the citizenryas a whole in obedience to the rule of law is undermined. It is for thisreason that it is well-settled that the Government may not be estoppedon the same terms as any other litigant._Heckler_, 467 U.S. at 60. Because it concluded that the \”traditionalelements of an estoppel\” applicable to private parties were notsatisfied in that case, the Court declined to decide whether theGovernment could ever be estopped under any circumstances. However, anumber of courts of appeals, including the Sixth Circuit where this casearises, have held that the Government may be estopped, but only if anadditional element of \”affirmative misconduct\” on the part of Governmentagents is shown. _E.g._, _United States v. River Coal Co._, 748 F.2d1103 (6th Cir. 1984); _Portmann v. United States_, 674 F.2d 1155 (7thCir. 1982); _Corniel – Rodriguez v. INS_, 532 F.2d 301 (2d Cir. 1976);_United States v. Wharton_, 514 F.2d 406 (9th Cir. 1975). See _INS v.Miranda_, 459 U.S. 14 (1982) (lower court acted correctly in consideringwhether the evidence showed affirmative misconduct but erred inconcluding that it did).Actions by Government agents, however, even if reasonably relied on,cannot be given an effect that would result in waiving or altering theemployer’s legal obligations under the Act. E.g., _Emery Mining Corp. v.Secretary of Labor_, 744 F.2d 1411, 1416 (10th Cir. 1984) (where anemployer instituted an employee training program which failed to meetthe requirements of the Federal Mine Safety and Health Act, the factthat the Mine Safety and Health Administration had approved theemployer’s program did not estop the agency from subsequently alleging aviolation of the statute, because allowing estoppel would free theemployer from an obligation expressly imposed by law).The Secretary asserts that because the standard at issue in this caserequires that inrunning nip points be guarded, finding an estoppel hereon the basis of the conduct of the OSHA area office would contravene theprinciple that actions by Government agents may not be given an effectthat would be contrary to the requirements of the law. The Secretaryfurther contends that \”affirmative misconduct\” has not been shown here.For the reasons set forth below, we reject both arguments.Unlike the _Emery_ case, we are not confronted here with a statutory orregulatory provision that specifically or explicitly prohibits employeesfrom reaching into the area of moving rollers on a tube mill during acleaning or maintenance operation. Rather, as previously indicated, ?1910.212(a)(1) is a standard that is general in nature. As we stated in_Hamilton Die Cast_, \”the standard requires that the employer exercise acertain degree of judgment in evaluating whether its machinery is incompliance with the standard and what types of guarding methods would beappropriate to achieve compliance.\” 11 BNA OSHC at 2171, 1984-85 CCHOSHD at p. 34,689 (citing cases). While the standard is not so broad asto be vague, an employer may appropriately look to extrinsic factors,such as common understanding and practice, as well as \”administrativeinterpretations which clarify obscurities or resolve ambiguities,\” asguidance in defining the meaning and application of the standard in aparticular situation. Diebold,585 F.2d at 1336, 1338. Accordingly, thereis not even an issue of waiver presented here. OSHA’s actions indicatingapproval of the hinged guard do not modify or alter the requirements of? 1910.212(a)(1); rather, they _define_ the scope of Miami ‘s duty underthe standard.Furthermore, contrary to the Secretary’s contention, an employer is notnecessarily obligated under the Act to correct all hazardous conditionsthat come within the literal terms of the standard. Miami’s contentionthat the nature of its work operations precluded the use of aninterlocked guard or a guard that is not readily removable is anargument that Miami could also have raised through the recognizedaffirmative defense of infeasibility of compliance. _Seibel_, slip op.at 23; _Williams Enterprises_, 13 BNA OSHC 1249, 1253, 1986-87 CCH OSHD? 27,893, p. 36,585 (No. 85-355, 1987). On a sufficient factual showing,Miami would have been entitled to an order vacating the citationallegation in question on the ground that it could not feasibly havetaken any further measures to protect its employees from the hazard ofinrunning nip points. Seibel, slip op. at 26-27; _Dun-Par EngineeredForm Co._, 12 BNA OSHC 1949, 1986-87 CCH OSHD ? 27,650 (No. 79-2553,1986), _rev’d & remanded on other grounds_, 843 F.2d 1135 (8th Cir.1988). While we do not now decide whether the merits of theinfeasibility defense have been established, [[7\/]] we note that ourholding of estoppel based on actions by OSHA indicating approval ofMiami’s panel guards has the same effect as would a Commission ordersustaining the affirmative defense of infeasibility of compliance. Boththe infeasibility and estoppel defenses permit Miami to comply with thestandard by partially but not necessarily fully protecting its employeesfrom the hazard of inrunning nip points. Accordingly, allowing estoppelin these circumstances does not waive or alter the requirements of thelaw applicable to Miami.The final issue before us concerns the additional element of\”affirmative misconduct\” essential. to establish an estoppel against theGovernment. Between private parties, estoppel may exist where one partyis simply silent if the other party relies to its detriment on thatsilence. _American Sec. & Trust Co. v. Fletcher_, 490 F.2d 481, 486 n.3(4th Cir.), _cert. denied_, 419 U.S. 900 (1974). However, mereacquiescence by the Government in the actions by the private party orthe failure of Government agents to act or to respond to the privateparty will not create an estoppel on the part of the Government._Wharton_, 514 F.2d at 412. Conversely, affirmative misconduct does notnecessarily require that the Government actually intend to mislead theother party; an active misrepresentation or concealment of a materialfact is sufficient. _Kriegresmann v. Barry-Wehmiller Co._, 739 F.2d 357(8th Cir. 1984), _cert. denied_, 469 U.S. 1036 (1984); _United States v.Ruby Co._, 588 F.2d 697, 703-04 (9th Cir. 1978), cert. denied, 442 U.S.917 (1979). Furthermore, there is no single test for judging affirmativemisconduct; each case turns on its own particular facts. Watkins, 875F.2d at 707; _Lavin v. Marsh_, 644 F.2d 1378, 1382 n.6 (9th Cir. 1981).Generally speaking, though, estoppel against the Government may bepermitted where the Government’s wrongful conduct will result in aninjustice to the party claiming estoppel, and imposition of estoppelwould not unduly damage the public interest. _Watkins_, 875 F.2d at 708;_City of Long Beach v. DOE_, 754 F.2d 379, 388 (Temp. Em. Ct, App.1985); _Morris v. Andrus_, 593 F.2d 851, 854 (9th Cir. 1978), _cert.denied_, 444 U.S. 863 (1979).The facts here clearly establish that in response to specific concernsraised by Miami, the Secretary’s agent, Barrett, expressly informedMiami that a hinged guard device would provide sufficient protection forits employees. Thereafter, OSHA engaged in conduct which plainlydemonstrated to Miami that OSHA regarded its guarding device as a modelfor other employers. Even at that point, however, the Secretary stillcould have made it clear to Miami that something more than the hingedpanel guard was required. Area Director McCann’s letter in response toMiami’s PMA gave OSHA a clear opportunity to state explicitly andunequivocally that it did not consider the hinged guards to beacceptable. Instead, McCann wrote a letter which was at best ambiguousand which, when read in the context of Barrett’s statements and OSHA’sother actions, simply reinforced Miami’s understanding that OSHAaccepted its panel guards. Assuming for the sake of argument that thepanel guards in fact do not comply with ? 1910.212 (a) (l), as _now_argued by the Secretary, we conclude that OSHA’s prior overtconduct–Barrett’s statements, OSHA’s use of Miami’s design as a model,and McCann’s corroborating letter–rise to the level of affirmativemisconduct. _See_ _Watkins,_ 875 F.2d at 707-08 (repeatedmisrepresentations as a basis of affirmative misconduct). _Compare__Richmond_, 862 F.2d at 299 (sufficient misconduct for estoppel existedwhere Navy personnel gave a disability annuitant erroneous informationregarding the period of time for computing the annuitant’s outsideincome) _with_ _Chien-Shih Wang v. Attorney General_, 823 F.2d 1273 (8thCir. 1987) (failure of Immigration and Naturalization Service to adviseimmigrant that his application was incomplete and failure to approvecompleted application in a timely fashion do not rise to the level ofaffirmative misconduct).Fox’s testimony also establishes that Miami trains and instructs itsoperators to clean the rollers in a manner that reduces the risk ofinjury. Although the removal of \”pickups\” is a frequent and regularoccurrence, no injuries had resulted from this maintenance operationover a period of twenty-one years. In the circumstances here, weconclude that the public interest in the effectuation of the Act’spurpose to ensure safe working conditions is outweighed by theunacceptable unfairness to Miami that would result from holding it inviolation of the Act for using a guarding design that had clearly andunequivocally been approved by OSHA. _See_ _Sun Il Yoo v. INS_, 534 F.2d1325, 1329 (9th Cir. 1976) (sense of \”justice or fair play\” warrantsestoppel against the Government); _United States v. Fox Lake StateBank_, 366 F.2d 962 (7th Cir. 1966). As the Court recognized in_Heckler_, 467 U.S. at 60-61, the public interest in ensuring that theGovernment can enforce the law free from estoppel may in appropriatecircumstances \”be outweighed by the countervailing interest of citizensin some minimum standard of decency, honor, and reliability in theirdealings with their Government.\”_EFFECT OF THE COMMISSION’S DECISION_We have decided this case on the grounds of both fair notice andestoppel because Miami’s reasonable reliance on misrepresentations ofthe Secretary necessary to establish estoppel also shows that Miami wasdenied fair notice of the standard’s requirements as applied to thecited working conditions. We emphasize, however, that there is asignificant difference between vacating the citation allegation inquestion for lack of fair notice and vacating it on the ground that theSecretary is estopped from enforcing the standard.Generally speaking, the question of whether an employer has receivedconstitutionally sufficient notice of its obligations depends upon theextent of its notice at the time the citation was issued. An originallyinadequate notice may be cured by subsequent administrative or judicialdeterminations. Corbesco. Inc. v. Dole, 926 F.2d 422, 428 (5th Cir.1991); Diebold, 585 F.2d at 1338. The Secretary’s position in thislitigation clearly places Miami on notice that the Secretary considersthe hinged guarding device to be inadequate. Accordingly, if we vacatedthe citation allegation before us here [[8\/]] solely under theprinciples governing fair notice, Miami would ordinarily be subject to areinspection and issuance of a subsequent citation if it failed to makeappropriate modifications to its guarding device.This case, however, raises more than simply the issue of whether Miamiwas entitled to rely on the statements of a compliance officer untilsuch time as Miami received notice to the contrary. Rather, theaffirmative defense of estoppel involves the question of whether OSHA’sactions in effect constituted a formal approval of Miami’s guardingdevice such that Miami cannot be held in violation of the Act forfailing to implement a different means of protecting its employees._See_ _Stone Container Corp._, 14 BNA OSHC 1757, 1761, 1987-1990 CCHOSHD ? 29,064, p. 38,817 (No. 88-310, 1990) (discussion of circumstancesunder which an employer may be legally excused from compliance). We arenot suggesting that the Secretary is permanently precluded fromrequiring that Miami install an interlocked or more secure guardingdevice. In our view, however, the Secretary may not enforce such arequirement merely by issuing another citation. Our finding of estoppelhere is analogous to OSHA’s granting of a permanent variance from therequirements of a standard, which may be done if the Secretary finds,after conducting a hearing, that:the conditions, practices, means, methods, operations, or processes usedor proposed to be used by an employer will provide employment and placesof employment to his employees which are as safe and as healthful asthose which would prevail if he complied with the standard.29 U.S.C. ? 655(d). Under this provision, the Secretary must alsoconduct a hearing before she may revoke such a variance: \”Such a rule ororder may be modified or revoked . . . by the Secretary on (her) ownmotion, in the manner prescribed for its issuance. . . . \” The Secretaryhas implemented this provision through regulations affording theemployer the right to a hearing before an administrative law judge andthe right to administrative and judicial review of an adverse decisionby the judge. 29 C.F.R. ?? 1905.13(a)(2), 1905.20-.30, 1905.51. While weneed not decide what further remedies are now available to the Secretaryas a result of our decision in this case, we conclude, consistent with29 U.S.C. ? 655(d) and the Secretary’s regulations, that Miami isentitled to an opportunity to be heard before the Secretary may initiateany future enforcement proceedings pertaining to the guarding device atissue here._ORDER _Accordingly, we vacate those portions of item 1(a) of the citationalleging that the existing guards were not secured in place orinterlocked and were not of such a height or configuration to preventaccess from above. We affirm the portion of item 1(a) alleging that themill was being operated with the hinged guards not fully in place anditem 1(b), which alleges that there was no guard at the first set ofrollers.The Secretary proposed a penalty of $360 for the entirety of item 1. Thetestimony of compliance officer Collins establishes that the only hazardto employees, other than to the operators themselves when removingpickups, is that an employee walking by might be injured if he slippedand fell into the rollers. We conclude that the gravity of the affirmedviolation, as modified herein, is low and that a total penalty of $100is appropriate.Edwin G.Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: September 13, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.MIAMI INDUSTRIES,Respondent.OSHRC Docket No. 88-671APPEARANCES:Christopher J. Carney, Esquire, Office of the Solicitor, U. S.Department of Labor, Cleveland, Ohio, on behalf of complainantJohn M. Kunst Jr., Esquire, Cincinnati, Ohio, on behalf of respondent_DECISION AND ORDER_Burroughs, Judge: Miami Industries (\”Miami\”), a manufacturer of weldedsteel tubing, contests an alleged serious violation of 29 C.F.R. ?1910.212(a)(1) for failing to provide protection to operators and otheremployees from hazards created by ingoing nip points on forming rolls inits mill number three. [[1]] The alleged violation emanated from aninspection held on January 4, 1988, at Miami’s Piqua, Ohio, plant. ThePiqua, Ohio, facility has 16 tube mills. The inspection resulted from aformal complaint and was limited to tube mill number three.Miami manufactures tubing from a quarter inch to four inches indiameter. Ninety-five percent of its products are made pursuant tocustomer orders. It purchases steel in large coils in widths of 36 or 45inches. The coils are slit into various widths that are needed toproduce the diameter of tubing ordered by the customer. The slit coilsof steel are sent to the tube mills where they are formed and weldedinto lengths of various-sized tubing. Miami manufactures hundreds ofdifferent sizes and shapes of tubes.Seventy-five percent of Miami’s product is cold rolled steel and ends upin some kind of plated and\/or painted end use application by thecustomer. Surface quality of tubing being plated and\/or painted is ofprime importance. Miami has established a reputation for manufacturinghigh quality tubing and attracts that part of the market which seeks aquality product. It guarantees its customers that the product will beshipped in a condition that is acceptable for plating. It is importantto Miami’s economic future that surface qualify of its product be freefrom imperfections. There are 117 major tubing manufacturers east of theMississippi and 22 in the State of Ohio. During the last three or fouryears, at least two competitors have achieved the same quality ofproduct offered by Miami (Tr. 120-121).Mill number three is composed of a line of vertical and horizontal diesor rolls configured in a manner that allows the flat strip steel to begradually formed into round metal tubing as it passes through the mill(Tr. 188). The large coils of steel are mounted on an \”uncoiler\” at thebeginning of the mill. The flat steel reels off the coil and passesthrough the \”shear and end welder.\” The welder is used to weld thestarting end of a new steel coil to the end of the preceding coil. Thisallows the tubing to be produced on a continuing basis. The steel nextpasses through an \”edge scarf unit\” which cleans and trims the edges ofthe steel in order to present a true edge for welding after the flatsteel has been formed into a tubular shape (Tr. 190).After the edges of the steel have been prepared for subsequent welding,the steel passes through the first of a series of power-driven rollsreferred to as \”forming passes.\” These rolls are mounted on verticalsupports and commence to bend the flat steel around a gradually reducingradius. As the steel passes through the \”forming passes,\” it is slightlycurved. It then passes through a series of additional dies known as\”cluster passes.\” The cluster passes continue to curve and narrow theradius of the steel so that it appears as a piece of tubing. The tubingnext passes through a series of four dies referred to as \”fin passes.\”The purpose of these dies is to align the outer edges of the steel sothat they will pass immediately beneath the welding electrode. When thetwo edges pass beneath the electrode, the tubing is squeezed togetherand the seam is welded. After the weld is either crushed or scarred tomake the welded surface imperceptible to touch or sight, the tubingpasses through eight separate dies, alternately mounted eithervertically or horizontally and referred to as \”sizing passes.\” Thevertical mounted dies are power-driven. The \”sizing passes\” are designedto further reduce the diameter of the welded tube. After the sizingpasses, the tubing passes through vertically mounted \”turkshead\” rollswhich assures that the tubing leaving the mill is straight. Theturkshead rolls are power-driven. The last step in the manufacturingprocess of the tubing is the cutoff machine which cuts the tubing intopredetermined shipping lengths.The dies used in the mill are made of very high grade, hardened steel.They are circular in shape. As steel passes through each pair of formingdies, a nip point is created on the ingoing side. As the steel passesthrough the power-driven pairs of dies, minute particles of steel breakaway from the edges or welded seam and frequently become imbedded in thesurface of the dies. In order to achieve the quality sought by Miami, itis important that the tube mill operators and their assistants removethe \”pickups.\” The \”pickups\” have in the past been removed while themill is operating and the dies are rotating. It is more efficient fromthe standpoint of production to remove the \”pickups\” while the dies arerotating.The \”pickups\” are located by touch. The operator or assistant lightlypresses a finger into the outgoing surface of the die. Once a \”pickup\”is located, it is most often removed by merely pressing a piece of emerycloth into the groove of the die until the pickup disappears. \”Pickups\”in awkward locations are removed with emery cloth wrapped around the endof a stick, rod or some similar extension. The stick allows theoperator’s hands to be some distance from rotating parts and the ingoingnip points. There is a need for employees to have access to the dies inorder to remove the \”pickups.\”_Alleged Violation of 29 C.F.R. ? 1910.212(a)(1)_The serious citation alleges that Miami violated 29 C.F.R. ?1910.212(a)(1) by failing to guard tube mill number three in a mannerdesigned to protect operators and other employees from hazards createdby ingoing nip points. Specific allegations set forth in the citationwere as follows:(a) Mill #3 was being operated with its mill roll guards out of placefully exposing the inrunning rolls. In addition, the existing guardswere not secured in place or interlocked to ensure their use nor werethey of such a height or configuration that they would prevent access tothe inrunning rolls from above the guards.(b) Mill #3 had no guarding to prevent access to the inrunning nip pointcreated by the first set of rolls past the welder.The allegations make clear that no attempt had been made to guard theingoing nip points created by the first set of rolls past the welder andthat barrier guards utilized at other points along the line failed toadequately protect employees from the hazards of the ingoing nip points.Employees could reach into the ingoing nip points with the guard inplace. The height and location of the barrier guards were not sufficientto preclude contact (Tr. 28).The Secretary alleges that employees are exposed to ingoing nip pointswhile cleaning away the \”pickups.\” Miami’s manager of industrialrelations, Ronald Fox, conceded that there is a hazard on the ingoingside of the dies and rolls (Tr. 167). According to him, Miami recognizedthe hazard and, for that reason, operators are instructed to removepickups from the outgoing side of the rolls or dies (Tr. 167-168). Hefurther conceded that while an employee is removing \”pickups,\” he isclose to the ingoing side of the rolls (Tr. 168). In some cases theemployee would be only a few inches from the ingoing nip points (Tr. 168).Miami points out that all 16 of its tube mills were inspected in 1978 byCompliance officer Charles Barrett. As a result of the. inspection, acitation was issued to Miami on May 25, 1978, alleging a violation of 29C.F.R. ? 1910.212(a)(1) for failure to guard ingoing nip points onforming and guide rolls on the 16-tube mills (Ex. R-3). As a result ofthat citation, Miami developed a hinged barrier guard which acts as ashield between the tube mill components and persons who might otherwisepass in front of the mill. The hinged guards are held in the \”up\”position by pins.Compliance officer Dennis Collins determined the hinged guards, evenwhen in place, [[2]] were inadequate to protect employees because theheight and location were not sufficient to preclude contact with theingoing nip points. The guards were designed and installed in such a wayas to allow access to the rolls (Tr. 92.). Miami concedes that operatorscould reach over the barrier guards into the rolls to clean them of any\”pickups\” that could damage the product being run through the line (Tr.32). Miami insists that operators have to have easy access to the rollsto clean them of \”pickups.\” If the barrier guards were made higher, theywould preclude employee access to the rolls (Tr. 27-31). Cleaning of the\”pickups\” takes place while the tube mill is running since this has beendetermined to be the fastest and most effective means of removing \”pickups.\”The cited standard, 29 C.F.R. ? 1910.212 (a) (l), [[3]] requires thatmachine guarding be provided to protect the operator and other employeesin the machine area from hazards created, among other things, by ingoingnip points. Examples of guarding methods to be utilized includebarrier guards, two-hand tripping devices and electronic safetydevises. There is no dispute over the fact that ingoing nip points arecreated by the rolls as they rotate. There is also no dispute over thefact that employees are exposed to ingoing nip points during theoperation of the mill. This is especially true while removing \”pickups.\”The facts unequivocally establish that Miami was in violation of 29C.F.R. ? 1910.212 (a) (l) at the time of the inspection. There was notype of guarding utilized for the first set of rolls past the welder(Ex. C-1; Tr. 23). Anyone walking in close proximity to the rollswould have been exposed to ingoing nip points. There was a walkway. These employees included setup operators, assistant operators andoperators (Tr. 124). Even if the remaining barrier guards had been incompliance, the top halves of the guards were not in an \”up\” position atthe time of the inspection (Tr. 165-166) and provided no protectionagainst someone accidentally falling into the ingoing nip points (Tr.165-166). The Secretary has established that the ingoing nip points wereunguarded and that the method of operation of the mill exposed employeesto injury. These facts are sufficient to establish a violation of 29C.F.R. ? 1910.212(a)(1). The next dispute centers on how the conditioncan be abated.The barrier guards in use were an inadequate means of abatement. Abarrier guard to be effective has to be high enough to preclude entryinto the ingoing nip point. It also must be secured so it is not readilyremovable. If it can be removed, then it should be interlocked so thatthe equipment cannot be operated while the guard is not in place (Tr.28). Miami insists that access must be available to the rolls while theyare rotating to efficiently remove \”pickups.\” It asserts thatelectronically interlocking barrier guards that would shut down the millevery time an employee cleans \”pickups\” from the rolls would beeconomically infeasible. It submitted evidence to show \”pickups\” are acontinual problem and that the use of interlocking barrier guards wouldresult in severe production loss. The loss in production would raise thecost of the product and result in undermining Miami’s competitive statuswithin the industry. Miami has adequately demonstrated that interlockingbarrier guards would destroy its competitive advantage and bringeconomic ruin to its business operations. However, this is not the onlymeans of compliance with 29 C.F.R. ? 1910.212(a)(1).The Secretary does not contend that interlocked barrier guards are theonly means of abating the violation. Barrier guards had previously beenerected by respondent and the citation description merely set out whythe erected guards were not adequate for abatement purposes. The barrierguards in place were the means by which Miami sought to abate theprevious citation issued in 1978. Compliance Officer Collins suggestedother methods of abatement. He suggested that individual guards beplaced on the ingoing portions of the rolls. This would give the personcleaning the \”pickups\” access to the outgoing portion of the rollswithout endangering them to ingoing nip points (Tr. 58). Collins alsosuggested a panic bar stop device across the front of the machinery (Tr.87). A panic bar devise would have to be located at such a height anddistance that the operator, if caught in the equipment, could shut themachinery off without being required to make a concerted effort. Collinsfurther suggested developing a hand tool to be used in conjunction withslotted barrier guards to allow access of the hand tool into the dangerarea without allowing the hand into the danger area (Tr. 96).Aside from the barrier guards, Miami has not attempted to implement anyabatement measures to comply with the standard (Tr. 180-181). It hassimply taken the position that no other means of abatement is possibleand considers any other suggestions by Compliance Officer Collins to be\”fruitless experimentation\” (Tr. 182).In Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135, 1139 (8th Cir.1988), the court stated:* * *The employer bears the initial responsibility to comply with thestandards promulgated by the Secretary. Where the employer determinesthat the specified means of compliance is infeasible, it mustaffirmatively investigate alternative measures of preventing the hazard,and actually implement such alternative measures, to the extentfeasible. * * *An employer experienced in performing this dutyadequately should possess knowledge of the alternative means ofcompliance existing in the industry. To the extent that the employerrequires further assistance in discovering alternative means ofprotecting its employees, it may look to the OSHA standards themselves.The court goes on to state that \”[t]he Act imposes an obligation onemployers to become aware of, and to actually implement, alternativemeans of compliance where feasible.\” 843 F.2d at 1139. In concludingthat the employer bears the burden in proving infeasibility ofalternative methods of compliance, the court recognized that \”theplacement of the burden of proof may often be outcome determinative.\”843 F.2d at 1140. While interlocking barrier guards may be economicallyinfeasible, there has not been an adequate showing by Miami to establishthat compliance with other suggested abatement methods are not feasible.The violation has been established._Nature of Violation_The Secretary alleges that the violation was serious within the meaningof section 17(k) of the Act. [[4]] \”To establish that a violation is’serious’ it must be shown that there is a substantial probability thatdeath or serious physical harm could result from the violative conditionand that the employer knew or with the exercise of reasonable diligencecould have known of the presence of the violation.\” _Wisconsin ElectricPower Co._, 76 OSAHRC 134\/B2, 4 BNA OSHC 1783, 1787, 1976-77 CCH OSHD21,234 at p. 25,532 (No. 5209, 1976), _aff’d_, 567 F.2d 735 (7th Cir.1977). The Secretary does not have to establish the likelihood of anaccident before a violation can be classified as serious. He \”need onlyshow that an accident is possible and that such an accident will mostlikely result in serious injury.\” _Communications, Inc_., 79 OSAHRC61\/A2, 7 BNA OSHC 1598, 1602, 1979 CCH OSHD ? 23,759, at p. 28,813 (No.76-1924), _aff’d_ in an unpublished opinion, No. 79-2148 (D.C. Cir. 1981).Miami was aware of the conditions that constitute the hazard in thiscase. Employees were encouraged to clean \”Pickups\” from the rolls byusing their hands. Compliance officer Collins expressed the view thatthe ingoing nip points could cause lacerations, crushing injuries to thefingers or hands or broken bones (Tr. 32-33). This is sufficient tocategorize the hazard as being serious within the meaning of section17(k) of the Act._Penalty Determination_The Commission is the final arbiter of penalties in all contested cases._Secretary v. OSAHRC and Interstate Glass Co._, 487 F.2d 438 (8th Cir.1973). Under section 17(j) [[5]] of the Act, the Commission is requiredto find and give \”due consideration\” to the size of the employer’sbusiness, the gravity of the violation, the good faith of the employer,and the history of previous violations in determining the assessment ofan appropriate penalty. The gravity of the offense is the principalfactor to be considered. _Nacirema Operating Co., Inc._, 72 OSAHRC1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).The operator and assistant operator of the tube mill reach into theoutgoing side of the rolls to clean the rolls of accumulated debris,referred to as \”pickups.\” The removal of \”pickups\” is a constantproblem. During this removal procedure, the employees are close to theingoing nip points and exposed to potential lacerations or crushinginjuries. The speed of the rolls are approximately 60 r.p.m. (Tr. 34).There was no evidence of any nip point injuries to Miami’s employeesover the last 20 years (Tr. 73-74). A citation was issued in 1978covering the same condition. Miami cooperated during the inspection. Apenalty of $300 is assessed for the violation._FINDINGS OF FACT AND CONCLUSIONS OF LAW_The findings of fact and conclusions of law contained in this opinionare incorporated herein in accordance with Rule 52 of the Federal Rulesof Civil Procedure._ORDER_In view of the foregoing, good cause appearing therefor, it is ORDERED:(1) That the \”other\” citation issued to Miami on January 19, 1988, isaffirmed; and(2) That the serious citation issued to Miami on January 19, 1988, isaffirmed and a penalty of $300 assessed for the violation.JAMES D. BURROUGHSJudgeDate: February 27,1989 ————————————————————————FOOTNOTES:[[1]]The standard provides as follows:? 1910.212 General requirements for all machines.(a) Machine guarding (1) Types of guarding. One or more methods ofmachine guarding shall be provided to protect the operator and otheremployees in the machine area from hazards such as those created bypoint of operation, ingoing nip points, rotating parts, flying chips andsparks. Examples of guarding methods are-barrier guards, two-handtripping devices, electronic safety devices, etc.[[2\/]] The fourth allegation is summarily dismissed in note 4, infra.[[3\/]] Miami raised estoppel as an affirmative defense in its answer. Itdid not explicitly argue before the judge that the citation should alsobe vacated on fair notice grounds alone. Nevertheless, review wasdirected on whether OSHA’s prior enforcement actions deprived Miami offair notice of the requirements of ? 1910.212(a)(1), along with severalother issues. In their review briefs, the parties address both the fairnotice and estoppel questions.[[4\/]] This portion of item 1(a) also alleges that the existing guardswere not \”of such a height or configuration that they would preventaccess to the inrunning rolls from above the guards.\” In support of thisallegation, Collins testified that even with the top half of the guardsin the closed position, the guard panels would not prevent contact withthe rollers. In his opinion, the height and \”location\” of the panels wasnot adequate to keep employees away from the rollers. The judge did notspecifically rule on this allegation but noted Collins’ testimony in hisdecision.We conclude, however, that contrary to compliance officer Collins’opinion, the entirety of the record clearly demonstrates that theexisting guards did extend high enough above the rollers to protectMiami’s employees. Fox stated that the guards were equipped with hingedand removable sections precisely because employees could not gain accessto the rollers simply by reaching over the guards. Fox’s testimony isconsistent with Collins’ own measurements, which showed that the topsection of the guard was 52 inches above the floor and the rollers 21inches below the top of the guard. It is apparent that with the guard inthe fully closed position, employees would be exposed to the nip pointsonly if they deliberately bent over the top of the guard and extendedtheir hands into the rollers. Accordingly, we conclude that the hingedguards were sufficient to protect employees except during themaintenance operation, when employees lowered the guard in order to haveaccess to the rollers for cleaning purposes.[[5\/]] Judge Burroughs so ruled at the hearing. The Secretary’s counselobjected that Fox’s testimony of statements Barrett made to him wasinadmissible hearsay. In response to an inquiry from the judge, Miami’scounsel explained that he was trying to establish that Barrett’sstatements induced Miami to take a certain course of action, rather thanthat Barrett’s statements were truthful. The judge ruled, withoutobjection or exception by either counsel, that the testimony wasadmissible to show the actions Miami took but did not necessarilyestablish the truth of Barrett’s statements.[[6\/]] We reject the Secretary’s related contention that Miami could nothave reasonably relied on Barrett’s statements because Barrett did notactually observe the panel guards after they had been installed andbecause McCann’s letter stated that Fox should contact William Murphy.Fox testified that he fully described the proposed panel guards toBarrett and that Barrett did not request any further details. Fox wasjustified in concluding that Barrett had all of the information herequired, particularly after Barrett asked for copies of Miami’sblueprints. By the same token, McCann’s letter did not require Fox tocontact Murphy; rather, the letter merely advised Fox that any questionsshould be directed to Murphy. The letter did not indicate Murphy’sposition or title, and nothing in the letter suggests that Barrett wasnot authorized to deal with Miami regarding abatement of the violation.[7\/]] Under Seibel, an infeasibility defense is established where theemployer demonstrates that compliance with the terms of the standardwould not be feasible and that there were no alternative means ofprotecting its employees. Here, Judge Burroughs found that it wasnecessary for the rollers to be cleaned while running and that a guardnot readily removable or an interlocked guard to cut off power to therollers if removed would effectively prevent Miami from conducting itscleaning operation. However, the judge noted that compliance officerCollins had testified about other means Miami could have taken tosafeguard its employees, and he concluded that Miami had not adducedevidence to show that implementing these other means would have beeninfeasible. In view of our disposition, we do not decide whether theelements of the infeasibility defense have been proven.[[8\/]]In Martin v. OSHRC (CF&I Steel Corp.), 111 S. Ct. 1171, 1179(1991), the Court held that issuance of a citation alone may affordappropriate notice to an employer of its obligations under a standardsusceptible of more than one interpretation. The issue in CF&I, however,was whether the Secretary’s interpretation of the standard was entitledto deference. The Court did not decide the question presented here:whether a consistent and ongoing pattern of conduct by the Secretary’sagents denied the employer fair notice of the requirements of thestandard. We further note that the Court did not necessarily considerissuance of a citation to be conclusive. As the Court stated, \”thedecision to use a citation as the initial means for announcing aparticular interpretation may bear on the adequacy of notice toregulated parties\” and that \”other factors relevant to thereasonableness of the Secretary’s exercise of delegated lawmakingpowers\” are also to be taken into consideration. Id. at 1180 (emphasisadded). Among other things, the Court stated that \”whether the Secretaryhas consistently applied the interpretation embodied in the citation\”will have a bearing on the \”reasonableness of the Secretary’s position.\”Id. at 1179. In our view, the fact that the Secretary on severaloccasions advised Miami that its guarding device complied with theabatement requirements of the 1978 citation and thereafter declined toissue citations over an extensive period of time militates against theSecretary summarily reversing her position simply through the issuanceof another citation.We note that the Sixth Circuit reached a similar result in Diebold, Inc.v, Marshall, 585 F.2d 1327, 1339 (6th Cir. 1978). In Diebold, theSecretary issued a citation alleging that the employer violated ?1910.212 by not guarding its press brakes. The Commission affirmed thecitation, rejecting the argument that the standard was not applicable.The court. concluded that at the time the citation was issued, theemployer did not have fair notice that ? 1910.212 applied to pressbrakes, but that the Commission’s decision gave the employer therequisite notice. Despite the fact that the employer was now aware ofits obligation under the standard, the court held that it would not beappropriate to require the employer to implement the abatement methodspecified in the citation, and it vacated the citation. Cf . RyanHeating Co. v. NLRB , Daily Lab. Rep. (BNA) No. 170 (8th Cir. Aug. 26,1991) (court declines to give retroactive effect to a decision of theNational Labor Relations Board where the employer had reasonably reliedon a prior contrary precedent of the Board and retroactive applicationwould have a substantial detrimental impact on the employer).[[1]] The notice of contest also placed in issue and alleged \”other\”violation of 29 C.F.R. ? 1910.22(a)(l). On May 13, 1988, a withdrawal ofits notice of contest to the alleged \”other\” violation was received fromrespondent.[[2]] At the time of the inspection, the top half of the barrier guardswere not in the \”up\” position while the mill was operating (Tr. 22-23,166). The pins had been removed. Compliance Officer Collins discoveredthe pins that held the hinges had not been in use for two weeks (Tr.165-166).[[3]]Section 1910.212(a)(l) of 29 C.F.R. provides:(a) _Machine guarding_–(1) _Types of guarding_. One or more methodsof machine guarding shall be provided to protect the operator and otheremployees in the machine area from hazards such as those created bypoint of operation, ingoing nip points, rotating parts, flying chips andsparks. Examples of guarding methods are–barrier guards, two-handtripping devices, electronic safety devices, etc.[[4]] Section 17(k) of the Act provides:(k) For purposes of this section, a serious violation shall be deemed toexist in a place of employment if there is a substantial probabilitythat death or serious physical harm could result from a condition whichexists, or from one or more practices, means, methods, operations, orprocesses which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exerciseof reasonable diligence, know of the presence of the violation.[[5]] Section 17(j) of the Act states:(j) The Commission shall have authority to assess all civil penaltiesprovided in this section, giving, due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations.”