“Docket No. 88-0671 SECRETARY OF LABOR,Complainant, v. MIAMI INDUSTRIES, INC., Respondent.OSHRC Docket No. 88-671DECISION BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:The primary issue in this case is whether statements andactions by agents 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 guarding standard, 29 C.F.R.? 1910.212(a)(1), [[1\/]] by failing to protect its employees from the hazards ofinrunning nip points on a series of rollers that form and shape steel in Miami’s plant. Wefind that OSHA misled Miami into believing that a hinged and removable panel guard that ithad installed following an earlier citation was sufficient to comply with the terms of thestandard. Accordingly, we conclude that Miami was denied fair notice that the Secretaryconsidered its existing panel guards to be inadequate. In addition, we conclude that thefactors necessary to establish estoppel against the Government are also present here. Forreasons of both lack of fair notice and estoppel, we vacate that portion of the citationwhich alleges that Miami’s existing guards failed to provide proper protection to itsemployees. We affirm the other allegations of the citation.FACTSA. BackgroundThe facts are largely uncontroverted. Miami manufactures weldedsteel tubing out of coils of flat steel. After the flat steel is slit into various widthsdepending on the size of the tubing to be made, it then passes through a series ofrollers, known as a \”tube mill,\” that gradually form it into a round shape. Inorder to maintain its high level of product quality, Miami’s employees must regularly andfrequently remove small bits of metal and other debris, known as \”pickups,\” fromthe rollers. Approximately 50 pickups occur in an average workday. To remove them,employees hold an emery board, sandpaper, or a file against the roller while it isspinning. Employees will also feel for the location of a pickup by pressing their fingersdirectly on the rotating surface of the roller. There is no dispute that this essentialmaintenance procedure can only be conducted effectively and efficiently when the rollersare operating. Although mill operators are highly trained employees and are instructed toremove pickups from the outgoing side of the roller and to place their thumbs on a fixtureso that their hands will not slip, it is uncontroverted that these employees are exposedto the hazard of getting caught in and injured by an inrunning nip point when they reachinto the area of the rollers in order to clean them.B. Prior CitationThe facts relating to the fair notice and estoppel issues,arise out of a previous inspection of Miami’s tube mills on May 4, 1978. Following thatinspection, OSHA issued a citation alleging that the ingoing nip points at the\”forming rolls and guide rolls\” were not guarded as required by 29 C.F.R. ?1910.212(a)(1). Miami did not contest this citation but rather sought to devise a methodof abating the violation. Ronald R. Fox, Miami’s industrial relations manager, testifiedthat Charles Barrett, the compliance officer who conducted the 1978 inspection, was notconcerned with any hazard that may have been presented to the mill operator during routineoperations but rather was only concerned that the mill be guarded to protect someone fromslipping and falling against the rollers. Fox described his conversation with Barrettregarding a means of accomplishing this objective:Q. When Mr. Barrett was there in May of 1978, was there adiscussion with 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 wouldrequire either a secured barrier guard or an interlocked barrier guard.I informed him at the time that we couldn’t put interlockedbarrier guards in because we couldn’t get in to polish the rolls and take the pickups offthe rolls which is necessary for us, again, to perform if we’re going to produce thequality of tubing that we do.With respect to fixed barrier guards, he said that if we couldput something up, again, to keep someone from falling into that, that would besatisfactory.According to Fox, Barrett also mentioned four tubingmanufacturers in Miami’s area who had guards, so that Miami could see for itself howguards could be installed. Fox made arrangements to visit one of the four, Armco Steel. Anattorney for one of the other companies informed Fox that that company in fact did notprovide guarding for its mills. Fox did not pursue the other two.The May 1978 citation required that the violation be abated byJune 26, 1978. Because it was unable to have access to the Armco facility until June 16,1978, and for other reasons, including the effect of summer vacations on its workschedule, Miami filed a petition for modification (extension) of the abatement date(\”PMA\”). On June 20, Ronald J. McCann, the area director for the Cincinnati areaoffice which had issued that citation, granted the PMA. McCann’s letter stated, inpertinent part, as follows:Please note that if you use movable barrier guards, they mustbe either secured by fasteners that are not readily removable, or they must be used inconjunction with electrically interlocked devices. Electrically interlocked devices mustbe installed so that when a barrier guard is removed or opened, the machine will shutdown. McCann’s letter also advised Fox, ”[i]f there are any furtherquestions concerning this matter, please contact William Murphy at this office.\”Upon his visit to the Armco plant, Fox discovered that Armcohad guards only at the reels which unwind steel coil at the end of the mill and not forthe rollers themselves. Therefore, even though Barrett was the one who suggested Armco asa model, the Armco guarding method would not have satisfied the compliance officer’sconcerns. Lacking any specific guarding model to follow, Miami had its engineering staffdesign a guarding method. As a result, Miami installed a set of four vertical metalbarriers along the walkway in front of the mill where the machine operators worked. Thesebarriers consisted of an upper and lower section, each hinged so that it could be swungopen to allow access to the rollers for the performance of maintenance work. Thesebarriers commenced at a point just past the first set of rollers, such that the first setwould be exposed regardless of whether the barrier guards were in their closed position.The record does not explain why the guard was not installed so as to enclose the first setof rollers.Fox regarded the hinged guard as a secured guard within themeaning of McCann’s letter, and therefore acceptable to OSHA, because it could not beknocked down accidentally and could only be opened by lifting the hinged section up andoff its pins. In Fox’s view, the guard was not readily removable because the only time itwould be taken down is when pickups occurred, and he considered the guard effectivebecause reaching into a roller is a conscious act, whereas the guard would protect theoperator or anyone in the area from accidental contact. Fox also testified that Barrettsubsequently gave express approval to the hinged panel guard device:Again, I communicated with Mr. Barrett the type of hingingmechanism which we were going to put on the bottom of the guard which we considered and heconsidered a fixed guard because you have to pick it up and slide it over; and it cannotbe 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 theblueprints for Miami’s guarding design to another company with which OSHA was working andthat OSHA later referred a second company to Miami for its guard design. Barrett did notconduct any reinspection of Miami’s facility after it installed this guard, and Fox didnot make any inquiries of Murphy, whose name was mentioned in the McCann letter of June20. Although Murphy at the time was a supervisor in the area office, McCann’s letter didnot indicate Murphy’s identity, and Fox testified that lie did not know who Murphy was.C. Present CitationAlmost ten years after these events, on January 4, 1988, DennisCollins, another OSHA compliance officer, conducted an inspection of Miami’s plant.Collins’ inspection, which resulted in the citation that is before us now, was in responseto a complaint that employees were required to reach over the existing guards and into theequipment in order to clean the rollers. While investigating this complaint at theworksite, Collins noticed that there was no guard in place around the first set of rollersat the beginning of the mill. He further observed that the hinged guards were open, thusfully exposing the rollers. Fox testified that the guards had been lowered to enable theoperators to set up or adjust the rollers in preparation for the production operation. Foxconceded that when the operators had begun to run the mill, they had replaced only thebottom half and not the top half of the guard. Fox also admitted that Miami had difficultykeeping track of the pins used to hold the guards in place. Shortly after Collinsmentioned that the guards were partly opened, Miami’s superintendent got some pins fromthe machine shop and secured the guards in place.Fox conceded that with the top half down, the guards offeredonly \”some\” and \”not total\” protection for employees working orwalking along the walkway, but he opined that when the guards are fully closed, they wouldbe completely effective for that purpose. Collins, however, testified that the guards wereinadequate because they could be easily opened. In Collins’ opinion, the guards shouldhave been held in place by fasteners \”that are not readily removable by theoperator\” or interlocked so that opening the guard would cause the machinery to shutoff. Fox, in turn, testified that Collins’ view was contrary to the position previouslytaken by OSHA, in which OSHA had agreed that it was necessary for Miami’s employees toreach into the machinery in order to clean the rollers while the mill was operating.OSHA conducted seven inspections in Miami’s plant between theBarrett inspection in 1978 and the Collins inspection approximately ten years later. Untilthe Collins inspection, however, OSHA had not cited any deficiencies in the guardsinstalled following the 1978 inspection. Fox expressly testified that \”it [theguarding] has never been questioned until December of 1987, so that certainly led us tobelieve that everything was satisfactory.\” Fox, who had been employed with Miami fortwenty-one years, also stated that the only known injury from a nip point at Miami’sworkplace occurred in November 1987, when an employee was removing a coolant residue froma roller by using the finger of a glove to wipe the roller. The employee’s finger becamecaught in the roller when he tried to remove the glove. Using a glove in this manner wascontrary to Miami’s instructions.ISSUES BEFORE THE COMMISSIONThe Secretary’s citation consists of two separate itemscomprising essentially four different allegations. Item 1(a) of the citation, whichalleges in part that \”the existing guards were not secured in place or interlocked toensure their use,\” sets forth the primary focus of the citation: Miami’s workpractice whereby its employees knowingly reach into the area of the rollers to clean themwhile the mill was operating. However, the Secretary also was concerned with the exposureof employees to a hazard at other times when they were not performing these cleaningoperations. Thus, item 1(a) contains a further allegation that employees could come intocontact with the rollers because the guards remained partially open while the mill wasoperating.The third allegation before us is item 1(b), which states thatthe first set of rollers had no guard whatever to prevent access to the inrunning nippoint.[[2\/]] In that portion of his decision addressing the two latter allegations, JudgeBurroughs found that the first set of rollers was completely unguarded and that theexisting guarding was not fully in place during the inspection. He also found that themill was operating while the guards were partly open. Thus, he concluded that employeeswere not protected against accidentally falling into the ingoing nip points. Since thepreponderance of the evidence fully supports these findings, and Miami does not disputethem, we affirm these portions of the judge’s decision.In that portion of his decision that is vigorously disputed onreview, Judge Burroughs further found that the existing guards were not adequate toprotect employees during the cleaning process because they would not preclude employeesfrom having access to the nip points while the rollers are operating. He concluded thatthere were methods available which would give Miami’s employees access to the movingrollers for cleaning purposes while protecting them from exposure to the inrunning nippoint itself. However, the judge did not rule on Miami’s contention that the Secretary isestopped from requiring any type or method of guarding other than the existing panelguards.[[3\/]]For the reasons stated herein, we conclude that OSHA’senforcement actions deprived Miami of fair notice that OSHA considered its existingguarding device to be inadequate and further find that, under the circumstances in thiscase, the Secretary is estopped from enforcing the citation to the extent the citationalleges that the hinged panel guards were not capable of protecting the employees.Accordingly, we reverse the judge’s decision in part, and we vacate the allegation of item1(a) that Miami should have provided a secured or interlocked guard.[[4\/]]DISCUSSION AND ANALYSIS A. Fair NoticeGenerally speaking, an employer cannot be held in violation ofthe Act if 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 previously held that because the standard at issue,? 1910.212(a)(1), is a general provision that by its terms applies to a number ofdifferent hazards on all 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 thelack of any express language specifically addressing die casting machines, [the employer]cannot reasonably be said to have been on notice of a requirement to guard during corepull operations once the Secretary had informed [the employer ] that guarding was notneeded at such times.Hamilton Die Cast, Inc., 11 BNA OSHC 2169, 2172, 1984-85CCH OSHD ? 26,983 at p. 34,690 (No. 79-1686, 1984).\u00a0 See Diebold, Inc. v. Marshall,585 F.2d 1327, 1336-37 (6th Cir. 1978) (holding that employer did not have adequate noticethat ? 1910.212 required guarding of its press breaks).In this case, however, the Secretary contends that Barrett’sstatements did not deprive Miami of notice that OSHA considered its panel guards to beinadequate.\u00a0 In the Secretary’s view, Fox’s testimony concerning out-of-courtstatements by Barrett should not be given dispositive weight because of the possibilitythat those statements are \”exaggerated, incomplete, taken out of context, or evenfalse, \”citing Morrison-Knudsen, Inc., 13 BNA OSHC 1121, 1124, 1986-87 CCH OSHD ?27,869, p. 36,540 (no. 80-345, 1987).\u00a0 The Secretary further argues that Miami couldnot have reasonably relied on Barrett’s statements because Barrett did not\”officially\” approve the guard panels in writing an because McCann’s letter tookprecedence over any contrary statements Barrett may have made indicating approval of thehinged guard.\u00a0 For the reasons set forth below, we reject these contentions.1. Use of Barrett’s StatementsWe first address the threshold question of whether Barrett’soral statements are entitled to probative value. We emphasize at the outset that no issueof credibility is presented. That is, there is nothing in the record to indicate, nor doessecretary contend, that Fox was not a credible witness. Accordingly, we conclude, in theabsence of any showing or even suggestion to the contrary, that Barrett in fact made thestatements Fox attributed to him. See Hamilton Die-Cast, 11 BNA OSHC at 2172 n.2,1984-85 CCH OSHD at p. 34,689 n.2 (employer’s unrebutted testimony of representations bythe Secretary’s agents is sufficient to establish that those statements were made). Wefurther note that no issue of hearsay is presented. Barrett’s statements were properlyintroduced into evidence as admissions by an opposing party through its agent. Stanbest,Inc., 11 BNA OSHC 1222, 1227, 1983-84 CCH OSHD ? 26,455, p. 33,621 (No. 76-4355,1983). In any event, the Secretary does not challenge their admissibility; nor, for thatmatter, did the Secretary ever request that Barrett be afforded an opportunity to testify.The only question before us is the weight to be assigned to Fox’s testimony of Barrett’sstatements.Although Morrison-Knudsen, on which the Secretaryrelies, observed that an out-of-court declaration \”inherently has less probativevalue\” than the testimony of the declarant himself, that decision deals with anout-of-court statement \”offered to prove the truth of the matter it contains.\”13 BNA OSHC at 1123, 1986-87 CCH OSHD at p. 36,540. That decision is therefore inappositehere because the question in this case is not whether in fact Barrett was being truthfulwhen he indicated that the panel guard would be acceptable to OSHA, but rather whetherBarrett’s statements caused Miami to act in a certain manner.[[5\/]] As we indicated inHamilton Die Cast, an employer’s undisputed testimony of statements by OSHA personnel isentitled to weight on the issue of notice to the employer. See L.R. Willson& Son, Inc. v. Donovan, 685 F.2d 664, 676 (D.C. Cir. 1982) (statements bycompliance officers, while not binding, are relevant to whether an employer has adequatenotice of the conduct required under a standard using broad terminology subject todiffering interpretations). Accordingly, we reject the Secretary’s contention thatBarrett’s out-of-court statements do not have probative value on the issue of Miami’snotice of its obligations under the standard.The Secretary, however, also argues that in the circumstancespresented here, Fox did not act reasonably in relying on Barrett’s statements. We now turnto that question.2. RelianceThe facts show that Miami relied not only on Barrett’s oralstatements to Fox, but also on the actions and conduct of the area office. In addition tohis discussions with Fox, in which he told Fox that a particular method of abatement wasacceptable, Barrett asked for Miami’s blueprints so that OSHA could use Miami’s guardingdesign as a model for another 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 director McCann’s letter.Fox specifically informed Barrett of his concern that Miami not be precluded fromconducting its maintenance operation, which required that the rollers be in motion.Barrett first replied that either a secured guard or interlocked guard was required andthereafter advised Fox that the panel guards were considered a fixed guard because theycould not be removed inadvertently. The first sentence of area director McCann’s letterplainly states, consistent with Barrett’s declarations to Fox, that movable barrier guardsmust either be secured so that they are not readily removable or they must beinterlocked. The second sentence states the purpose of an electrically interlocked device.While the letter is somewhat ambiguous, reading both sentences in context Fox couldreasonably have concluded that: (1) McCann also considered the hinged panel guard to be anacceptable alternative to an interlocked guard because it was not readily removable and(2) McCann would have required an interlock to shut off power only if the panelscould have been removed or lowered inadvertently. Since there is nothing in McCann’sletter inconsistent with Barrett’s statements to Fox, we cannot conclude that Fox shouldhave construed McCann’s letter as rescinding Barrett’s explicit approval of the hingedguard device. The congruity between McCann’s letter and Barrett’s statements is furthercorroborated by OSHA’s actions in using Miami’s guard design as a model for otheremployers.In view of the consistent pattern of conduct by the OSHA areaoffice, we conclude that Miami was entitled to rely on the statements and actions by theOSHA personnel.[[6\/]] Indeed, because ? 1910.212(a)(1) is a broad standard covering allhazards presented by the moving parts of industrial machinery in general, Miami’s relianceon OSHA’s conduct was not only reasonable but necessary in order for Miami to haveappropriate guidance on how to protect its operators from the hazard of inrunning nippoints. The situation here is identical to that in Hamilton Die Cast, in which theemployer similarly sought the Secretary’s assistance in ascertaining its obligations underthe standard, and the Commission concluded that the Secretary’s response misled theemployer into believing that the secretary considered its guarding device to besufficient.The circumstances here are also analogous to the facts in acase recently decided by the Eighth Circuit, Ryan Heating Co. v. NLRB, Daily Lab.Rep. (BNA) No. 170 (8th Cir. Aug. 26, 1991). There an administrative law judge dismissedan unfair labor practice charge based on the existing precedent of the National LaborRelations Board (\”Board\”). Subsequently, the Board decided another case in whichit reversed the precedent on which the judge in Ryan had relied. On review of the judge’sdecision, the Board applied its new precedent and ruled that the employer had committed anunfair labor practice. On appeal, the Eighth Circuit declined to enforce the Board’sorder, holding that the employer could not have foreseen the change in the case law andthat its reliance on the prior Board precedent was reasonable:As we have said in the past, the essential demands of fairnessrequire that parties like Ryan–who rely on the Board’s rulings when conducting theiraffairs–not \”be left subject to entrapment and branding as the perpetrator of anunfair labor practice\” merely because the Board later departs from its earlierposition.Id. at D-2 (quoting NLRB v. International Bhd. ofTeamsters,Local 41, 225 F.2d 343, 348 ((8th Cir. 1955)).Accordingly, while the Commission precedent in Hamilton DieCast is controlling in the circumstances here, the principle of Ryan Heatingalso supports our holding that OSHA did not give Miami fair notice of any inadequacy inits guard design.B. Estoppel 1. In GeneralThe principle that a party’s actions or conduct may preclude itfrom asserting a right or claim to which it would otherwise be entitled is known asequitable estoppel. This doctrine is intended to ensure that parties deal with each otherin a manner that reflects a fundamental \”consideration of justice and goodconscience.\” United States v. Georgia-Pacific Co., 421 F.2d 92, 95 (9th Cir.1970). As an affirmative defense, equitable estoppel requires a showing that the party tobe estopped intends that its conduct will be acted upon by the other party or acts in sucha manner that the other party reasonably believes that the first party intends that itsactions or conduct be relied on. Id. at 96; Watkins v. United States Army, 875 F.2d699, 709 (9th Cir. 1989) (en banc), cert. denied, 111 S. Ct. 384 (1990); Che-Li-Shenv. INS, 749 F.2d 1469 (10th Cir. 1984). A party’s reliance on the actions or conductof another is reasonable if the party claiming estoppel did not know nor should have knownthat the other party’s conduct was misleading. As the Supreme Court held in Heckler v.Community Health Serv.of Crawford County, Inc., 467 U.S. 51 (1984),\”The truth concerning these material facts must be unknownto the other party claiming the benefit of the estoppel, not only at the time of theconduct which amounts to a representation or concealment, but also at the time when thatconduct is acted upon by him. If, at the time when he acted, such party had knowledge ofthe truth, or had the means by which with reasonable diligence he could acquire theknowledge so that it would be negligence on his part to remain ignorant by not using thosemeans, he cannot claim to have been misled by relying on the representation orconcealment.\”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 the otherparty is reasonable under the Supreme Court’s decision in Heckler, we must consider\”the objective reasonableness of the reliance.\” Richmond v. OPM, 862 F.2d294, 300 (Fed. Cir. 1988), rev’d on other grounds, 110 S.Ct. 2465 (1990).As we have stated above, Miami acted reasonably in relying onOSHA’s conduct at the time the 1978 citation was issued. In addition to relying on thestatements and actions by OSHA personnel regarding the 1978 citation, Miami also relied onthe fact that OSHA issued no citations for machine guarding violations over the succeeding10-year period, during which OSHA conducted a number of inspections of Miami’s facility.In our view, this reliance was reasonable because Miami could understandably haveconcluded that the lack of citations for violation of the machine guarding standard overan extensive period of time following the 1978 citation corroborated the statements andactions by the area office at the time the 1978 citation was issued. We in no way retreatfrom our position that simple failure to issue a citation alleging a violation of aparticular standard does not in itself establish that OSHA considers the employer to be incompliance with that standard. Seibel Modern Mfg. & Welding Corp., 14 BNA OSHC1218, 1223-24 (No. 83-821, 1991); Colombian Art Works, Inc., 10 BNA OSHC 1132, 1981CCH OSHD ? 25,737 (No. 78-29, 1981). Here, however, the absence of further citationscorroborated and was fully consistent with Miami’s prior understanding that the areaoffice regarded its hinged panel guards as sufficient to comply with the standard. SeeCardinal industries, 14 BNA OSHC at 1012, 1987-90 CCH OSHD at p. 37,802 (lack of fairnotice of any deficiency in abatement measures found where employer adopted abatementmethod suggested by compliance officer and thereafter on reinspection the Secretary failedto allege a violation).In our view, the facts clearly demonstrate a regular andconsistent pattern of conduct over a 10-year period, between the 1978 citation and thecitation now before us, from which Miami was plainly justified in believing that OSHAregarded its panel guards to be an appropriate means of abatement. Since there had neverbeen any injuries attributable to the guarding, no other circumstances were present thatwould have put Miami on notice of a defect in its guards. Accordingly, reasonable relianceon the actions and conduct of another party required to establish estoppel has been shownin this case.2. Estoppel Against the GovernmentThe issue here, however, is not estoppel between two privateparties but rather a claim of estoppel by a private party against the Government. It iswell-established that for purposes of estoppel, the Government is not equivalent to aprivate party. As the Supreme Court has explained,When the Government is unable to enforce the law because theconduct of its agents has given rise to an estoppel, the interest of the citizenry as awhole in obedience to the rule of law is undermined. It is for this reason that it iswell-settled that the Government may not be estopped on the same terms as any otherlitigant.Heckler, 467 U.S. at 60. Because it concluded that the\”traditional elements of an estoppel\” applicable to private parties were notsatisfied in that case, the Court declined to decide whether the Government could ever beestopped under any circumstances. However, a number of courts of appeals, including theSixth Circuit where this case arises, have held that the Government may be estopped, butonly if an additional element of \”affirmative misconduct\” on the part ofGovernment agents is shown. E.g., United States v. River Coal Co., 748 F.2d1103 (6th Cir. 1984); Portmann v. United States, 674 F.2d 1155 (7th Cir. 1982); Corniel- Rodriguez v. INS, 532 F.2d 301 (2d Cir. 1976); United States v. Wharton, 514F.2d 406 (9th Cir. 1975). See INS v. Miranda, 459 U.S. 14 (1982) (lower court actedcorrectly in considering whether the evidence showed affirmative misconduct but erred inconcluding that it did).Actions by Government agents, however, even if reasonablyrelied 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 ofLabor, 744 F.2d 1411, 1416 (10th Cir. 1984) (where an employer instituted an employeetraining program which failed to meet the requirements of the Federal Mine Safety andHealth Act, the fact that the Mine Safety and Health Administration had approved theemployer’s program did not estop the agency from subsequently alleging a violation of thestatute, because allowing estoppel would free the employer from an obligation expresslyimposed by law).The Secretary asserts that because the standard at issue inthis case requires that inrunning nip points be guarded, finding an estoppel here on thebasis of the conduct of the OSHA area office would contravene the principle that actionsby Government agents may not be given an effect that would be contrary to the requirementsof the law. The Secretary further contends that \”affirmative misconduct\” has notbeen shown here. For the reasons set forth below, we reject both arguments.Unlike the Emery case, we are not confronted here with astatutory or regulatory provision that specifically or explicitly prohibits employees fromreaching into the area of moving rollers on a tube mill during a cleaning or maintenanceoperation. Rather, as previously indicated, ? 1910.212(a)(1) is a standard that isgeneral in nature. As we stated in Hamilton Die Cast, \”the standard requiresthat the employer exercise a certain degree of judgment in evaluating whether itsmachinery is in compliance with the standard and what types of guarding methods would beappropriate to achieve compliance.\” 11 BNA OSHC at 2171, 1984-85 CCH OSHD at p.34,689 (citing cases). While the standard is not so broad as to be vague, an employer mayappropriately look to extrinsic factors, such as common understanding and practice, aswell as \”administrative interpretations which clarify obscurities or resolveambiguities,\” as guidance in defining the meaning and application of the standard ina particular situation. Diebold,585 F.2d at 1336, 1338. Accordingly, there is not even anissue of waiver presented here. OSHA’s actions indicating approval of the hinged guard donot modify or alter the requirements of ? 1910.212(a)(1); rather, they define thescope of Miami ‘s duty under the standard.Furthermore, contrary to the Secretary’s contention, anemployer is not necessarily obligated under the Act to correct all hazardous conditionsthat come within the literal terms of the standard. Miami’s contention that the nature ofits work operations precluded the use of an interlocked guard or a guard that is notreadily removable is an argument that Miami could also have raised through the recognizedaffirmative defense of infeasibility of compliance. Seibel, slip op. at 23; WilliamsEnterprises, 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 ordervacating the citation allegation in question on the ground that it could not feasibly havetaken any further measures to protect its employees from the hazard of inrunning nippoints. Seibel, slip op. at 26-27; Dun-Par Engineered Form 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 our holding of estoppelbased on actions by OSHA indicating approval of Miami’s panel guards has the same effectas would a Commission order sustaining the affirmative defense of infeasibility ofcompliance. Both the infeasibility and estoppel defenses permit Miami to comply with thestandard by partially but not necessarily fully protecting its employees from the hazardof inrunning nip points. Accordingly, allowing estoppel in these circumstances does notwaive or alter the requirements of the law 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 party is simply silentif the other party relies to its detriment on that silence. American Sec. & TrustCo. v. Fletcher, 490 F.2d 481, 486 n.3 (4th Cir.), cert. denied, 419 U.S. 900(1974). However, mere acquiescence by the Government in the actions by the private partyor the failure of Government agents to act or to respond to the private party will notcreate an estoppel on the part of the Government. Wharton, 514 F.2d at 412.Conversely, affirmative misconduct does not necessarily require that the Governmentactually intend to mislead the other party; an active misrepresentation or concealment ofa material fact 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 affirmative misconduct; each case turns on its ownparticular facts. Watkins, 875 F.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 an injustice to the partyclaiming estoppel, and imposition of estoppel would 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 specificconcerns raised by Miami, the Secretary’s agent, Barrett, expressly informed Miami that ahinged guard device would provide sufficient protection for its employees. Thereafter,OSHA engaged in conduct which plainly demonstrated to Miami that OSHA regarded itsguarding device as a model for other employers. Even at that point, however, the Secretarystill could have made it clear to Miami that something more than the hinged panel guardwas required. Area Director McCann’s letter in response to Miami’s PMA gave OSHA a clearopportunity to state explicitly and unequivocally that it did not consider the hingedguards to be acceptable. Instead, McCann wrote a letter which was at best ambiguous andwhich, when read in the context of Barrett’s statements and OSHA’s other actions, simplyreinforced Miami’s understanding that OSHA accepted its panel guards.\u00a0 Assuming forthe sake of argument that the panel 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’scorroborating letter–rise to the level of affirmative misconduct.\u00a0 See Watkins,875 F.2d at 707-08 (repeated misrepresentations as a basis of affirmative misconduct).\u00a0 Compare Richmond, 862 F.2d at 299 (sufficient misconduct for estoppelexisted where Navy personnel gave a disability annuitant erroneous information regardingthe period of time for computing the annuitant’s outside income) with Chien-ShihWang v. Attorney General, 823 F.2d 1273 (8th Cir. 1987) (failure of Immigration andNaturalization Service to advise immigrant that his application was incomplete and failureto approve completed application in a timely fashion do not rise to the level ofaffirmative misconduct).Fox’s testimony also establishes that Miami trains andinstructs its operators to clean the rollers in a manner that reduces the risk of injury.\u00a0 Although the removal of \”pickups\” is a frequent and regular occurrence,no injuries had resulted from this maintenance operation over a period of twenty-oneyears.\u00a0 In the circumstances here, we conclude that the public interest in theeffectuation of the Act’s purpose to ensure safe working conditions is outweighed by theunacceptable unfairness to Miami that would result from holding it in violation of the Actfor using a guarding design that had clearly and unequivocally been approved by OSHA. SeeSun Il Yoo v. INS, 534 F.2d 1325, 1329 (9th Cir. 1976) (sense of \”justice orfair play\” warrants estoppel against the Government); United States v. Fox LakeState Bank, 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 the Government can enforce the lawfree from estoppel may in appropriate circumstances \”be outweighed by thecountervailing interest of citizens in some minimum standard of decency, honor, andreliability in their dealings with their Government.\”EFFECT OF THE COMMISSION’S DECISIONWe have decided this case on the grounds of both fair noticeand estoppel because Miami’s reasonable reliance on misrepresentations of the Secretarynecessary to establish estoppel also shows that Miami was denied fair notice of thestandard’s requirements as applied to the cited working conditions. We emphasize, however,that there is a significant difference between vacating the citation allegation inquestion for lack of fair notice and vacating it on the ground that the Secretary isestopped from enforcing the standard.Generally speaking, the question of whether an employer hasreceived constitutionally sufficient notice of its obligations depends upon the extent ofits notice at the time the citation was issued. An originally inadequate notice may becured by subsequent administrative or judicial determinations. Corbesco. Inc. v. Dole, 926F.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 considers the hinged guardingdevice to be inadequate. Accordingly, if we vacated the citation allegation before us here[[8\/]] solely under the principles governing fair notice, Miami would ordinarily besubject to a reinspection 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 ofwhether Miami was entitled to rely on the statements of a compliance officer until suchtime as Miami received notice to the contrary. Rather, the affirmative defense of estoppelinvolves the question of whether OSHA’s actions in effect constituted a formal approval ofMiami’s guarding device such that Miami cannot be held in violation of the Act for failingto implement a different means of protecting its employees. See Stone ContainerCorp., 14 BNA OSHC 1757, 1761, 1987-1990 CCH OSHD ? 29,064, p. 38,817 (No. 88-310,1990) (discussion of circumstances under which an employer may be legally excused fromcompliance). We are not suggesting that the Secretary is permanently precluded fromrequiring that Miami install an interlocked or more secure guarding device. In our view,however, the Secretary may not enforce such a requirement merely by issuing anothercitation. Our finding of estoppel here is analogous to OSHA’s granting of a permanentvariance from the requirements of a standard, which may be done if the Secretary finds,after conducting a hearing, that:the conditions, practices, means, methods, operations, orprocesses used or proposed to be used by an employer will provide employment and places ofemployment to his employees which are as safe and as healthful as those which wouldprevail if he complied with the standard.29 U.S.C. ? 655(d). Under this provision, the Secretary mustalso conduct a hearing before she may revoke such a variance: \”Such a rule or ordermay be modified or revoked . . . by the Secretary on (her) own motion, in the mannerprescribed for its issuance. . . . \” The Secretary has implemented this provisionthrough regulations affording the employer the right to a hearing before an administrativelaw judge and the right to administrative and judicial review of an adverse decision bythe judge. 29 C.F.R. ?? 1905.13(a)(2), 1905.20-.30, 1905.51. While we need not decidewhat further remedies are now available to the Secretary as a result of our decision inthis case, we conclude, consistent with 29 U.S.C. ? 655(d) and the Secretary’sregulations, that Miami is entitled to an opportunity to be heard before the Secretary mayinitiate any future enforcement proceedings pertaining to the guarding device at issuehere.ORDER Accordingly, we vacate those portions of item 1(a) of thecitation alleging that the existing guards were not secured in place or interlocked andwere not of such a height or configuration to prevent access from above. We affirm theportion of item 1(a) alleging that the mill was being operated with the hinged guards notfully in place and item 1(b), which alleges that there was no guard at the first set ofrollers.The Secretary proposed a penalty of $360 for the entirety ofitem 1. The testimony of compliance officer Collins establishes that the only hazard toemployees, other than to the operators themselves when removing pickups, is that anemployee walking by might be injured if he slipped and fell into the rollers. We concludethat the gravity of the affirmed violation, as modified herein, is low and that a totalpenalty of $100 is appropriate.Edwin G.Foulke, Jr. ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: September 13, 1991SECRETARY 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 ofrespondentDECISION AND ORDERBurroughs, Judge: Miami Industries (\”Miami\”), amanufacturer of welded steel tubing, contests an alleged serious violation of 29 C.F.R. ?1910.212(a)(1) for failing to provide protection to operators and other employees fromhazards created by ingoing nip points on forming rolls in its mill number three. [[1]] Thealleged violation emanated from an inspection held on January 4, 1988, at Miami’s Piqua,Ohio, plant. The Piqua, 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 to customer orders. Itpurchases steel in large coils in widths of 36 or 45 inches. The coils are slit intovarious widths that are needed to produce the diameter of tubing ordered by the customer.The slit coils of steel are sent to the tube mills where they are formed and welded intolengths of various-sized tubing. Miami manufactures hundreds of different sizes and shapesof tubes.Seventy-five percent of Miami’s product is cold rolled steeland ends up in some kind of plated and\/or painted end use application by the customer.Surface quality of tubing being plated and\/or painted is of prime importance. Miami hasestablished a reputation for manufacturing high quality tubing and attracts that part ofthe market which seeks a quality product. It guarantees its customers that the productwill be shipped in a condition that is acceptable for plating. It is important to Miami’seconomic future that surface qualify of its product be free from imperfections. There are117 major tubing manufacturers east of the Mississippi and 22 in the State of Ohio. Duringthe last three or four years, 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 andhorizontal dies or 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). Thelarge coils of steel are mounted on an \”uncoiler\” at the beginning of the mill.The flat steel reels off the coil and passes through the \”shear and end welder.\”The welder is used to weld the starting end of a new steel coil to the end of thepreceding coil. This allows the tubing to be produced on a continuing basis. The steelnext passes through an \”edge scarf unit\” which cleans and trims the edges of thesteel in order to present a true edge for welding after the flat steel has been formedinto a tubular shape (Tr. 190).After the edges of the steel have been prepared for subsequentwelding, the steel passes through the first of a series of power-driven rolls referred toas \”forming passes.\” These rolls are mounted on vertical supports and commenceto bend the flat steel around a gradually reducing radius. As the steel passes through the\”forming passes,\” it is slightly curved. It then passes through a series ofadditional dies known as \”cluster passes.\” The cluster passes continue to curveand narrow the radius 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.\” Thepurpose of these dies is to align the outer edges of the steel so that they will passimmediately beneath the welding electrode. When the two edges pass beneath the electrode,the tubing is squeezed together and the seam is welded. After the weld is either crushedor scarred to make the welded surface imperceptible to touch or sight, the tubing passesthrough eight separate dies, alternately mounted either vertically or horizontally andreferred to as \”sizing passes.\” The vertical mounted dies are power-driven. The\”sizing passes\” are designed to further reduce the diameter of the welded tube.After the sizing passes, the tubing passes through vertically mounted\”turkshead\” rolls which assures that the tubing leaving the mill is straight.The turkshead rolls are power-driven. The last step in the manufacturing process of thetubing is the cutoff machine which cuts the tubing into predetermined shipping lengths.The dies used in the mill are made of very high grade, hardenedsteel. They are circular in shape. As steel passes through each pair of forming dies, anip point is created on the ingoing side. As the steel passes through the power-drivenpairs of dies, minute particles of steel break away from the edges or welded seam andfrequently become imbedded in the surface of the dies. In order to achieve the qualitysought by Miami, it is 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 from the standpoint ofproduction to remove the \”pickups\” while the dies are rotating.The \”pickups\” are located by touch. The operator orassistant lightly presses a finger into the outgoing surface of the die. Once a\”pickup\” is located, it is most often removed by merely pressing a piece ofemery cloth into the groove of the die until the pickup disappears. \”Pickups\” inawkward locations are removed with emery cloth wrapped around the end of a stick, rod orsome similar extension. The stick allows the operator’s hands to be some distance fromrotating parts and the ingoing nip points. There is a need for employees to have access tothe dies in order 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 manner designed to protectoperators and other employees from hazards created by ingoing nip points. Specificallegations set forth in the citation were as follows:(a) Mill #3 was being operated with its mill roll guards out ofplace fully exposing the inrunning rolls. In addition, the existing guards were notsecured in place or interlocked to ensure their use nor were they of such a height orconfiguration that they would prevent access to the inrunning rolls from above the guards.(b) Mill #3 had no guarding to prevent access to the inrunningnip point created by the first set of rolls past the welder.The allegations make clear that no attempt had been made toguard the ingoing nip points created by the first set of rolls past the welder and thatbarrier guards utilized at other points along the line failed to adequately protectemployees from the hazards of the ingoing nip points. Employees could reach into theingoing nip points with the guard in place. The height and location of the barrier guardswere not sufficient to preclude contact (Tr. 28).The Secretary alleges that employees are exposed to ingoing nippoints while cleaning away the \”pickups.\” Miami’s manager of industrialrelations, Ronald Fox, conceded that there is a hazard on the ingoing side of the dies androlls (Tr. 167). According to him, Miami recognized the hazard and, for that reason,operators are instructed to remove pickups from the outgoing side of the rolls or dies(Tr. 167-168). He further conceded that while an employee is removing \”pickups,\”he is close to the ingoing side of the rolls (Tr. 168). In some cases the employee wouldbe only a few inches from the ingoing nip points (Tr. 168).Miami points out that all 16 of its tube mills were inspectedin 1978 by Compliance officer Charles Barrett. As a result of the. inspection, a citationwas issued to Miami on May 25, 1978, alleging a violation of 29 C.F.R. ? 1910.212(a)(1)for failure to guard ingoing nip points on forming and guide rolls on the 16-tube mills(Ex. R-3). As a result of that citation, Miami developed a hinged barrier guard which actsas a shield between the tube mill components and persons who might otherwise pass in frontof the mill. The hinged guards are held in the \”up\” position by pins.Compliance officer Dennis Collins determined the hinged guards,even when in place, [[2]] were inadequate to protect employees because the height andlocation were not sufficient to preclude contact with the ingoing nip points. The guardswere designed and installed in such a way as to allow access to the rolls (Tr. 92.). Miamiconcedes that operators could reach over the barrier guards into the rolls to clean themof 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 rolls to clean them of\”pickups.\” If the barrier guards were made higher, they would preclude employeeaccess to the rolls (Tr. 27-31). Cleaning of the \”pickups\” takes place while thetube mill is running since this has been determined to be the fastest and most effectivemeans of removing \”pickups.\”The cited standard, 29 C.F.R. ? 1910.212 (a) (l), [[3]]requires that machine guarding be provided to protect the operator and other employees inthe machine area from hazards created, among other things, by ingoing nip points. \u00a0Examples of guarding methods to be utilized include barrier guards, two-hand trippingdevices and electronic safety devises.\u00a0 There is no dispute over the fact thatingoing nip points are created by the rolls as they rotate.\u00a0 There is also no disputeover the fact that employees are exposed to ingoing nip points during the operation of themill.\u00a0 This is especially true while removing \”pickups.\”The facts unequivocally establish that Miami was in violationof 29 C.F.R. ? 1910.212 (a) (l) at the time of the inspection.\u00a0 There was no type ofguarding utilized for the first set of rolls past the welder (Ex. C-1; Tr. 23). \u00a0Anyone walking in close proximity to the rolls would have been exposed to ingoing nippoints.\u00a0 There was a walkway.\u00a0 These employees included setup operators,assistant operators and operators (Tr. 124). Even if the remaining barrier guards had beenin compliance, the top halves of the guards were not in an \”up\” position at thetime of the inspection (Tr. 165-166) and provided no protection against someoneaccidentally falling into the ingoing nip points (Tr. 165-166). The Secretary hasestablished that the ingoing nip points were unguarded and that the method of operation ofthe mill exposed employees to injury. These facts are sufficient to establish a violationof 29 C.F.R. ? 1910.212(a)(1). The next dispute centers on how the condition can beabated.The barrier guards in use were an inadequate means ofabatement. A barrier guard to be effective has to be high enough to preclude entry intothe ingoing nip point. It also must be secured so it is not readily removable. If it canbe removed, then it should be interlocked so that the equipment cannot be operated whilethe guard is not in place (Tr. 28). Miami insists that access must be available to therolls while they are rotating to efficiently remove \”pickups.\” It asserts thatelectronically interlocking barrier guards that would shut down the mill every time anemployee cleans \”pickups\” from the rolls would be economically infeasible. Itsubmitted evidence to show \”pickups\” are a continual problem and that the use ofinterlocking barrier guards would result in severe production loss. The loss in productionwould raise the cost of the product and result in undermining Miami’s competitive statuswithin the industry. Miami has adequately demonstrated that interlocking barrier guardswould destroy its competitive advantage and bring economic ruin to its businessoperations. However, this is not the only means of compliance with 29 C.F.R. ?1910.212(a)(1).The Secretary does not contend that interlocked barrier guardsare the only means of abating the violation. Barrier guards had previously been erected byrespondent and the citation description merely set out why the erected guards were notadequate for abatement purposes. The barrier guards in place were the means by which Miamisought to abate the previous citation issued in 1978. Compliance Officer Collins suggestedother methods of abatement. He suggested that individual guards be placed on the ingoingportions of the rolls. This would give the person cleaning the \”pickups\” accessto the outgoing portion of the rolls without endangering them to ingoing nip points (Tr.58). Collins also suggested 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 and distance that theoperator, if caught in the equipment, could shut the machinery off without being requiredto make a concerted effort. Collins further suggested developing a hand tool to be used inconjunction with slotted 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 toimplement any abatement measures to comply with the standard (Tr. 180-181). It has simplytaken the position that no other means of abatement is possible and considers any othersuggestions 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 complywith the standards promulgated by the Secretary. Where the employer determines that thespecified means of compliance is infeasible, it must affirmatively investigate alternativemeasures of preventing the hazard, and actually implement such alternative measures, tothe extent feasible. * * *An employer experienced in performing this duty adequatelyshould possess knowledge of the alternative means of compliance existing in the industry.To the extent that the employer requires further assistance in discovering alternativemeans of protecting its employees, it may look to the OSHA standards themselves.The court goes on to state that \”[t]he Act imposes anobligation on employers to become aware of, and to actually implement, alternative meansof compliance where feasible.\” 843 F.2d at 1139. In concluding that the employerbears the burden in proving infeasibility of alternative methods of compliance, the courtrecognized that \”the placement of the burden of proof may often be outcomedeterminative.\” 843 F.2d at 1140. While interlocking barrier guards may beeconomically infeasible, there has not been an adequate showing by Miami to establish thatcompliance with other suggested abatement methods are not feasible. The violation has beenestablished.Nature of ViolationThe Secretary alleges that the violation was serious within themeaning of section 17(k) of the Act. [[4]] \”To establish that a violation is’serious’ it must be shown that there is a substantial probability that death or seriousphysical harm could result from the violative condition and that the employer knew or withthe exercise of reasonable diligence could have known of the presence of theviolation.\” Wisconsin Electric Power Co., 76 OSAHRC 134\/B2, 4 BNA OSHC 1783,1787, 1976-77 CCH OSHD 21,234 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 an accidentbefore a violation can be classified as serious. He \”need only show that an accidentis possible and that such an accident will most likely result in serious injury.\” Communications,Inc., 79 OSAHRC 61\/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 inthis case. Employees were encouraged to clean \”Pickups\” from the rolls by usingtheir hands. Compliance officer Collins expressed the view that the ingoing nip pointscould cause lacerations, crushing injuries to the fingers or hands or broken bones (Tr.32-33). This is sufficient to categorize the hazard as being serious within the meaning ofsection 17(k) of the Act.Penalty DeterminationThe Commission is the final arbiter of penalties in allcontested cases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8thCir. 1973). Under section 17(j) [[5]] of the Act, the Commission is required to find andgive \”due consideration\” to the size of the employer’s business, the gravity ofthe violation, the good faith of the employer, and the history of previous violations indetermining the assessment of an appropriate penalty. The gravity of the offense is theprincipal factor to be considered. Nacirema Operating Co., Inc., 72 OSAHRC 1\/B10, 1BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).The operator and assistant operator of the tube mill reach intothe outgoing side of the rolls to clean the rolls of accumulated debris, referred to as\”pickups.\” The removal of \”pickups\” is a constant problem. During thisremoval procedure, the employees are close to the ingoing nip points and exposed topotential lacerations or crushing injuries. The speed of the rolls are approximately 60r.p.m. (Tr. 34). There was no evidence of any nip point injuries to Miami’s employees overthe last 20 years (Tr. 73-74). A citation was issued in 1978 covering the same condition.Miami cooperated during the inspection. A penalty of $300 is assessed for the violation.FINDINGS OF FACT AND CONCLUSIONS OF LAWThe findings of fact and conclusions of law contained in thisopinion are incorporated herein in accordance with Rule 52 of the Federal Rules of CivilProcedure.ORDERIn view of the foregoing, good cause appearing therefor, it isORDERED: (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, is affirmed and apenalty of $300 assessed for the violation.JAMES D. BURROUGHSJudgeDate: February 27,1989\u00a0FOOTNOTES: [[1]]The standard provides as follows:? 1910.212 General requirements for all machines.(a) Machine guarding (1) Types of guarding. One or more methods of machine guarding shallbe provided to protect the operator and other employees in the machine area from hazardssuch as those created by point of operation, ingoing nip points, rotating parts, flyingchips and sparks. Examples of guarding methods are-barrier guards, two-hand trippingdevices, electronic safety devices, etc.[[2\/]] The fourth allegation is summarily dismissed in note 4,infra.[[3\/]] Miami raised estoppel as an affirmative defense in itsanswer. It did not explicitly argue before the judge that the citation should also bevacated on fair notice grounds alone. Nevertheless, review was directed on whether OSHA’sprior enforcement actions deprived Miami of fair notice of the requirements of ?1910.212(a)(1), along with several other issues. In their review briefs, the partiesaddress both the fair notice and estoppel questions.[[4\/]] This portion of item 1(a) also alleges that the existingguards were not \”of such a height or configuration that they would prevent access tothe inrunning rolls from above the guards.\” In support of this allegation, Collinstestified that even with the top half of the guards in the closed position, the guardpanels would not prevent contact with the rollers. In his opinion, the height and\”location\” of the panels was not adequate to keep employees away from therollers. The judge did not specifically rule on this allegation but noted Collins’testimony in his decision.We conclude, however, that contrary to compliance officerCollins’ opinion, the entirety of the record clearly demonstrates that the existing guardsdid extend high enough above the rollers to protect Miami’s employees. Fox stated that theguards were equipped with hinged and removable sections precisely because employees couldnot gain access to the rollers simply by reaching over the guards. Fox’s testimony isconsistent with Collins’ own measurements, which showed that the top section of the guardwas 52 inches above the floor and the rollers 21 inches below the top of the guard. It isapparent that with the guard in the fully closed position, employees would be exposed tothe nip points only if they deliberately bent over the top of the guard and extended theirhands into the rollers. Accordingly, we conclude that the hinged guards were sufficient toprotect employees except during the maintenance operation, when employees lowered theguard in order to have access to the rollers for cleaning purposes.[[5\/]] Judge Burroughs so ruled at the hearing. The Secretary’scounsel objected that Fox’s testimony of statements Barrett made to him was inadmissiblehearsay. In response to an inquiry from the judge, Miami’s counsel explained that he wastrying to establish that Barrett’s statements induced Miami to take a certain course ofaction, rather than that Barrett’s statements were truthful. The judge ruled, withoutobjection or exception by either counsel, that the testimony was admissible to show theactions Miami took but did not necessarily establish the truth of Barrett’s statements.[[6\/]] We reject the Secretary’s related contention that Miamicould not have reasonably relied on Barrett’s statements because Barrett did not actuallyobserve the panel guards after they had been installed and because McCann’s letter statedthat Fox should contact William Murphy. Fox testified that he fully described the proposedpanel guards to Barrett and that Barrett did not request any further details. Fox wasjustified in concluding that Barrett had all of the information he required, particularlyafter Barrett asked for copies of Miami’s blueprints. By the same token, McCann’s letterdid not require Fox to contact Murphy; rather, the letter merely advised Fox that anyquestions should be directed to Murphy. The letter did not indicate Murphy’s position ortitle, and nothing in the letter suggests that Barrett was not authorized to deal withMiami regarding abatement of the violation.[7\/]] Under Seibel, an infeasibility defense is establishedwhere the employer demonstrates that compliance with the terms of the standard would notbe feasible and that there were no alternative means of protecting its employees. Here,Judge Burroughs found that it was necessary for the rollers to be cleaned while runningand that a guard not readily removable or an interlocked guard to cut off power to therollers if removed would effectively prevent Miami from conducting its cleaning operation.However, the judge noted that compliance officer Collins had testified about other meansMiami could have taken to safeguard its employees, and he concluded that Miami had notadduced evidence to show that implementing these other means would have been infeasible.In view of our disposition, we do not decide whether the elements of the infeasibilitydefense 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 afford appropriatenotice to an employer of its obligations under a standard susceptible of more than oneinterpretation. The issue in CF&I, however, was whether the Secretary’s interpretationof the standard was entitled to deference. The Court did not decide the question presentedhere: whether a consistent and ongoing pattern of conduct by the Secretary’s agents deniedthe employer fair notice of the requirements of the standard. We further note that theCourt did not necessarily consider issuance of a citation to be conclusive. As the Courtstated, \”the decision to use a citation as the initial means for announcing aparticular interpretation may bear on the adequacy of notice to regulated parties\”and that \”other factors relevant to the reasonableness of the Secretary’s exercise ofdelegated lawmaking powers\” are also to be taken into consideration. Id. at 1180(emphasis added). Among other things, the Court stated that \”whether the Secretaryhas consistently applied the interpretation embodied in the citation\” will have abearing on the \”reasonableness of the Secretary’s position.\” Id. at 1179. In ourview, the fact that the Secretary on several occasions advised Miami that its guardingdevice complied with the abatement requirements of the 1978 citation and thereafterdeclined to issue citations over an extensive period of time militates against theSecretary summarily reversing her position simply through the issuance of anothercitation.We note that the Sixth Circuit reached a similar result inDiebold, Inc. v, Marshall, 585 F.2d 1327, 1339 (6th Cir. 1978). In Diebold, the Secretaryissued a citation alleging that the employer violated ? 1910.212 by not guarding itspress brakes. The Commission affirmed the citation, rejecting the argument that thestandard was not applicable. The court. concluded that at the time the citation wasissued, the employer did not have fair notice that ? 1910.212 applied to press brakes,but that the Commission’s decision gave the employer the requisite notice. Despite thefact that the employer was now aware of its obligation under the standard, the court heldthat it would not be appropriate to require the employer to implement the abatement methodspecified in the citation, and it vacated the citation. Cf . Ryan Heating Co. v. NLRB ,Daily Lab. Rep. (BNA) No. 170 (8th Cir. Aug. 26, 1991) (court declines to give retroactiveeffect to a decision of the National Labor Relations Board where the employer hadreasonably relied on 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 withdrawalof its notice of contest to the alleged \”other\” violation was received fromrespondent. [[2]] At the time of the inspection, the top half of thebarrier guards were not in the \”up\” position while the mill was operating (Tr.22-23, 166). The pins had been removed. Compliance Officer Collins discovered the pinsthat 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)\u00a0\u00a0\u00a0 Types ofguarding.\u00a0 One or more methods of machine guarding shall be provided to protectthe operator and other employees in the machine area from hazards such as those created bypoint of operation, ingoing nip points, rotating parts, flying chips and sparks. \u00a0Examples of guarding methods are–barrier guards, two-hand tripping devices, electronicsafety devices, etc.[[4]] Section 17(k) of the Act provides:(k) For purposes of this section, a serious violation shall bedeemed to exist in a place of employment if there is a substantial probability that deathor serious physical harm could result from a condition which exists, or from one or morepractices, means, methods, operations, or processes which have been adopted or are in use,in such place of employment 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 civilpenalties provided in this section, giving, due consideration to the appropriateness ofthe penalty with respect to the size of the business of the employer being charged, thegravity of the violation, the good faith of the employer, and the history of previousviolations.”