“SECRETARY OF LABOR,Complainant,v.SHARON STEEL CORPORATION,Respondent.UNITED STEELWORKERS OF AMERICA,LOCAL 1197,Authorized EmployeeRepresentative.OSHRC Docket No. 80-7251_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).Sharon Steel Company (\”Sharon\”) operates a steel processing facility inFarrell, Pennsylvania. Following an OSHA inspection of the worksite onAugust 19, 1980, the Secretary of Labor issued a citation alleging thatSharon violated the Act’s \”general duty\” clause[[1]] in that employeesperforming a certain maintenance operation were exposed to a hazard ofbeing struck by flying fragments of steel. Administrative Law JudgeGeorge O. Taylor, Jr. concluded that Sharon violated the Act asalleged. We reverse and vacate the citation.The citation alleged that employees were exposed to the hazard of flyingsteel while working on machinery Sharon uses to temper, or harden, thesurface of sheet steel. Sheet steel arrives at Sharon’s Number 28Temper Mill on large rolls. A roll is placed vertically on a devicecalled a vertihort, the function of which is to change the sheet steel’sorientation from vertical to horizontal. The horizontally-oriented steelthat emerges from the vertihort is then threaded around and past tworollers before passing through the temper mill. The function of theserollers, called \”bridle rolls,\” is to maintain the proper tension in thesteel. Sharon’s temper mill is the only one in North America that usessuch a vertihort arrangement.Normal wear of the bridle rolls requires their replacement two or threetimes per year. The rolls are also replaced on infrequent occasionswhen unexpected defects develop. When the bridle rolls are beingchanged, sheet steel cannot be run off the vertihort. However, operationof the mill can continue by placing the roll of steel being fed into themill on a horizontal reel, called the payoff reel, located between thebridle rolls and the temper mill. It was Sharon’s policy to shut downthe mill when employees were changing bridle roll No. 1 to avoid thepossible hazard of contacting the rotating steel on the payoff reel,which was 9 feet 6 inches from bridle roll No. 1. However, since bridleroll No. 2 was 6 feet farther away from the payoff reel, employees couldchange bridle roll No. 2 while sheet steel was being fed into the millfrom the payoff reel. The Secretary alleges that employees who changedbridle roll No. 2 while steel was being fed off the payoff reel wereexposed to the hazard of flying fragments of steel in violation ofsection 5(a)(1) of the Act.The evidence in the record indicates that on occasion the sheet of steelbreaks while being fed off the payoff reel at high speeds. When thatoccurs, the broken end could shatter upon striking a solid object,producing fragments of steel. There was conflicting evidence as towhether these fragments could endanger employees working on bridle rollNo. 2. Several Sharon employees testified that they were nearly struckby flying fragments of steel while they were working on or near bridleroll No. 2 and steel was being run off the payoff reel. On the otherhand, the company presented testimony that employees changing bridleroll No. 2 would be protected by floor plates and other barriers andhence would not be exposed to a hazard even if flying fragments of steelwere produced.There was also conflicting evidence as to whether Sharon knew that theoperation of the mill off the payoff reel could produce flying steelfragments. There was testimony that some employees had attempted tobring the problem to management’s attention. However, all of Sharon’smanagement personnel who had responsibility for the safety of the mill’soperation testified that they were unaware of any incidents of flyingsteel and had never been informed by employees of any concern overflying steel. We need not resolve these conflicts, however, because wefind that there was no hazard established on the day of the inspection,or within the preceding 6 months, and because we may not affirm acitation based upon the possibility of a future or prospective violation.To prove that an employer violated section 5(a)(1), the Secretary mustfirst show that a condition or activity in the employer’s workplacepresents a hazard to employees. _Aluminum Co. of America_, 83 OSAHRC24\/E10, 11 BNA OSHC 1520, 1522-23, 1983-84 CCH OSHD ? 26,526, pp.33,794-95 (No. 78-3157, 1983). He must then prove that the citedemployer or the employer’s industry recognizes the hazard. _Davey TreeExpert Co_., 84 OSAHRC 11\/D11, 11 BNA OSHC 1898, 1984 CCH OSHD ? 26,852(No. 77-2350, 1984). The Secretary must further prove that the hazardis likely to cause death or serious physical harm and that feasiblemeans exist to eliminate or materially reduce the hazard. _PhillipsPetroleum Co_., 84 OSAHRC 2\/E7, 11 BNA OSHC 1776, 1779, 1983-84 CCH OSHD? 26,783, p. 34,524 (No. 78-1816, 1984), _aff’d_, No. 84-1425 (10th Cir.Sept. 19, 1985).To establish the existence of a hazard in this case, the Secretaryasserts that fragments of flying steel can be generated when Sharon’sNumber 28 Temper Mill is being fed from the payoff reel, and that thesefragments endanger employees if they are performing maintenance onbridle roll No. 2 at the same time. The Secretary presented thetestimony of several Sharon employees who said that they had, in thepast, worked on bridle roll No. 2 while the mill was running off thepayoff reel. The latest such incident occurred in December, 1979,eleven months before the citation was issued. Sharon cannot be chargedwith a violation of the Act based on these occurrences because they tookplace outside the six month statute of limitations period imposed bysection 9(c) of the Act. 29 U.S.C. 658(c).[[2]] The only evidencetending to show that the allegedly hazardous activity occurred withinsix months of the citation’s issuance pertains to the day of the OSHAinspection.[[3]] The Secretary does not argue that any prior instancesform the basis of his allegations; indeed, at the hearing hespecifically stated that the alleged violation occurred on the day ofthe inspection, Aug. 19, 1980. Accordingly, the events of that day arecritical in determining whether there was a violation.On the morning of the inspection, steel was being fed into the mill offthe vertihort, not the payoff reel. The bridle roll No. 2 was observedto be slightly misshapen. Mill superintendent Bible therefore decidedto replace that bridle roll after the roll of sheet steel that was thenon the vertihort had been completely processed. The last of the steelon the vertihort passed through the mill at 1:10 p.m.[[4]] Atapproximately noon, millwrights Griffin and Lizzie were assigned thetask of changing bridle roll No. 2. According to Griffin, they gatheredtheir tools and went to the area at about 12:30, when the mill was stillrunning off the vertihort. Griffin, the only one of the two millwrightsto testify, was uncertain whether the mill was in operation during thetime they were replacing the bridle roll.Shortly after lunch, the inspection party, consisting of OSHA complianceofficer Sutton and a number of Sharon representatives, arrived at themill. Sutton testified that he observed the millwrights replacing theNo. 2 bridle roll while steel was running off the payoff reel into thetemper mill. However, Sharon’s assistant superintendent, Schell,explained that they were attempting to run the mill while the inspectionparty was there, but were not able to do so due to an electricalmalfunction. Schell testified that the mill was being \”jogged\” back andforth in an attempt to cure the electrical problem, but this provedunsuccessful and the mill was shut down entirely at 1:30 until after thebridle roll change was completed.Judge Taylor accepted Schell’s version of what transpired during theinspection, _i.e_., that the mill was being jogged. Nevertheless, hefound that on the way of the inspection, Sharon’s employees were exposedto the hazard of flying steel during the replacement of the No. 2 roll. He concluded that the fact the mill was being jogged was sufficient toestablish that steel was being fed into the mill off the payoff reelwithin the meaning of the citation. Moreover, the judge said that evenif the steel was unlikely to break during the jogging procedure,Sharon’s intent to operate the mill if the electrical problem had beencorrected established that Sharon’s employees were \”within the zone ofdanger that exists when steel is being processed off the payoff reelunder normal conditions.\”We believe the evidence is clear that no hazard existed on the day ofthe inspection. The preponderance of the evidence establishes that themill was not operating during the inspection, but was only being jogged.[[5]] There is no evidence suggesting that a flying steel hazard existswhen the mill is being jogged. When the mill is operated with steelbeing fed from the payoff reel, the steel normally moves through themill at a speed of 1000 feet per minute. The record does not establishprecisely how fast the steel moves when the mill is being jogged, but itdoes indicate that the speed is much lower than during normaloperation. One of the employees who testified he was nearly struck byflying steel, Paul Dzaja, testified that the steel shattered when thebroken end on the payoff reel hit an I-beam between the payoff reel andthe bridle rolls. For the sheet steel to shatter in this manner, itmust have been moving at a relatively high speed. Another of theemployees who experienced an incident of flying steel, Robert Alter,testified that the mill was operating at high speed at the time.[[6]] It thus appears that flying steel fragments were generated only when thesteel broke as it was moving through the mill at high speed. There isno evidence tending to show that the steel could shatter into fragmentsat slow speed when the mill is being jogged, and accordingly, theSecretary did not prove that a hazard existed on the day of the inspection.The judge essentially concluded that a violation occurred because Sharonintended to operate the mill during the bridle roll change if theelectrical malfunction had been corrected.[[7]] The Secretary,reasoning similarly, argues that a violation should be found becauseSharon’s policy to replace bridle roll No. 2 with the mill operatingmade it reasonably predictable that employees would be exposed to thehazard alleged in the citation.[[8]] It is clear that both the judgeand the Secretary are relying on the possibility of a prospectiveviolation. The Act, however, does not permit citations founded on thepossibility of future violations. Section 9(c) of the Act isunambiguous. A citation may be issued only within six months of the\”occurrence\” of a \”violation.\” The mere existence of an unimplementedpolicy is not the \”occurrence\” of a \”violation.\” In the absence ofevidence of a violation within six months of the issuance of a citation,Sharon cannot be found in violation of the Act.We conclude that Sharon did not violate section 5(a)(1) of the Act. Thejudge’s decision is reversed and the citation is vacated.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: November 19, 1985BUCKLEY, Chairman, concurring:I concur with the conclusions of the lead opinion, and with the reasonsstated therein. It is clear that, offered by the ALJ an opportunity toamend the complaint, the Secretary’s solicitor declined and expresslystated that he intended to prove that the violation of the general dutyclause (29 U.S.C. 654 (a)(1)) occurred on the date of the complianceofficer’s inspection, August 19, 1980. It is also clear that he failedto prove that violation for the reasons stated in the lead opinion.But even had the amendment to the complaint been made, I would find thatthe Secretary failed to carry his burden of establishing any violationof the general duty clause because he failed to establish the existenceof a recognized hazard in the workplace at any time.In order to show that a hazard is recognized within the meaning ofsection 5(a)(1), the Secretary must prove that an allegedly violativecondition or practice was known both to exist in the workplace and to behazardous either by the cited employer or generally within theemployer’s industry. _National Realty & Construction Co. v. OSHRC,_ 489F.2d 1257, 1265 n.32 (D.C. Cir. 1973). As the alleged hazard in thiscase results from practices associated with machinery that is unique toSharon, the hazard could not have been known generally within the steelindustry. Thus, the Secretary would have to show either that, at thetime of the alleged violation, Sharon itself knew of the hazard, or thata reasonable person familiar with Sharon’s operation would have known ofthe hazard. _See_ _Usery v. Marquette Cement Manufacturing Co_., 568F.2d 902, 910 (2d Cir. 1977); _Litton Systems, Inc_., 81 OSAHRC 101\/C12,10 BNA OSHC 1179, 1182, 1982 CCH OSHD ? 25,817, p. 32,270 (No. 76-900,1981); _cf_. _Ray Evers_ _Welding Co. v. OSHRC_, 625 F.2d 726, 731 (6thCir. 1980) (29 C.F.R. ? 1926.28(a)). The Secretary did not make such ashowing.The No. 28 Temper Mill had been in operation since 1966 with no injuriesfrom flying steel. Moreover, several Sharon supervisors had worked inthe plant during most or all of the time the No. 28 Temper Mill had beenoperating and could reasonably believe they were thoroughly familiarwith its operation and that the operation’s safety was not open toserious dispute. Sharon could not have learned of any hazard from theexperience of other companies in its industry since the arrangement ofthe machinery giving rise to the complaint was unique to Sharon’splant. Thus, the accumulated experience of Sharon and its industry inoperating temper mills did not put Sharon on notice that it might bedangerous to replace bridle roll No. 2 with the mill in operation.Although two employees who testified they had experienced incidents offlying steel said that they brought the problem to the attention oftheir foremen, their testimony was contradicted by the two foremen. Sharon’s superintendent, Charles Bible, as well as three supervisors,also testified categorically that they were unaware of any incidents offlying steel and had received no complaints or reports of any suchincidents. One of these, the Corporate Safety Director, who was amember of, and regularly attended meetings of, the Management-UnionSafety Committee, testified that in his three and one-half years noreport had ever been made of a hazard of flying steel. The Secretaryelicited testimony purporting to demonstrate the effort by employees tobring the problem to the company’s attention through evidence of agrievance filed following an incident on December 12, 1979. Accordingto the grievance, two employees assigned to change the bridle rollcomplained to their foreman that the job was \”unsafe.\” The foremaninsisted the job was not unsafe and told the employees they would besubject to discipline if they refused to do it. The employees thenperformed the task. Notably, the employees did not tell the foreman whythey thought the job was unsafe, and the grievance papers did notmention any problem of flying steel. Indeed, the relief sought by thegrievance was only that the foreman apologize for threatening theemployees with discipline, not that Sharon change its policy ofreplacing the bridle roll while the mill was in operation. Thegrievance therefore gave Sharon no reason to believe that the employeeswere concerned with a hazard other than the obvious one of contactingthe rotating roll of steel on the payoff reel, a hazard that Sharonbelieved had been eliminated by its policy of not working on bridle rollNo. 1 with the mill running off the payoff reel. Sharon could certainlyexpect that employees concerned about a hazard associated with a bridleroll change would have been much more specific about the nature of thehazard. The grievance therefore did not put Sharon on notice that flyingsteel fragments could endanger employees working on bridle roll No. 2.In finding that Sharon recognized that a hazard of flying steel existedwhile employees were changing bridle rolls, Judge Taylor reliedprimarily on testimony of employee Rocky Vadala, a crane operator andUnion Safety Officer. Vadala was first called to testify by theSecretary. His testimony was that he operated overhead cranes in all ofthe Sharon mills and had seen flying steel many times in the No. 28Temper Mill. However, he was unable to state that he had seen flyingsteel when the steel was running off of the payoff reel or thatmillwrights were changing a bridle roll at a time that he observedflying steel.After the Respondent rested, he was recalled as a witness by theauthorized employee representative to rebut Bible’s testimony that liewas not aware of any flying steel hazard. On direct examination, Vadaladid not say that he had told Bible about flying steel, but only thatworking on the bridle rolls with the mill running was \”unsafe.\” Afterthe completion of Vadala’s direct testimony, Sharon’s counsel pointedout that Vadala had not rebutted Bible’s statement that he had neverbeen told about flying steel. Following some colloquy, Respondents’attorney proceeded to cross-examine the witness. Vadala was at firstevasive. Asked whether he told Bible about flying steel, he answered,\”I wasn’t asked to tell him that.\” On being pressed, he responded thathe told Bible there was a \”safety problem,\” and only after being pressedfurther did he state, \”I explained to Mr. Bible…that there was flyingsteel….\” When asked whether he told Bible about a specific incident offlying steel, his answer was that he could not remember the entireconversation. He later stated that he \”might have told him about theincident of flying steel.\”I find Vadala’s testimony on the whole to be self-contradictory andvague, and inadequate to establish that Respondent knew or should haveknown that a hazard of flying steel existed in the No. 28 Temper Mill.For the foregoing reason, I find that the Secretary failed to carry hisburden of establishing that a recognized hazard existed in theworkplace. I therefore concur for this additional reason in thevacation of the citation.————————————————————————FOOTNOTES:[[1]] The general duty clause is section 5(a)(1) of the Act, 29 U.S.C. ?654(a)(1), which provides: \”[e]ach employer . . . shall furnish to eachof his employees employment and a place of employment which are freefrom recognized hazards that are causing or are likely to cause death orserious physical harm to his employees.\”[[2]] Section 9(c) of the Act provides:\”No citation may be issued under this section after the expiration ofsix months following the occurrence of any violation.\”[[3]] The record indicates that the bridle rolls were changed a weekbefore the inspection, but there is no evidence that the mill wasoperating off the payoff reel at the time.[[4]] The Secretary does not allege, nor does the record suggest, thatthere is any hazard to employees when steel is run off the vertihort.[[5]] Compliance officer Sutton was the only witness who testified thatthe mill was \”operating\” during the inspection. However, Sutton was notfamiliar with the mill’s operation and could well have equated themovement of steel through the mill during the jogging procedure with themill being \”in operation.\” Moreover, Sutton testified that he wasinformed during the inspection that the mill was \”not operating up tonormal.\”[[6]] Alter testified that the steel was moving at 2000 feet per minutewhen the incident occurred. This cannot be entirely accurate, for themill’s maximum speed is 1500 feet per minute. It does suggest, however,that the mill was engaged in its normal high-speed operation.[[7]] It is not clear from the record that this was Sharon’s intent. There is some testimony indicating that Sharon was not attempting tooperate the mill during the inspection but was only trying todemonstrate the process to the compliance officer. Other testimonyindicates that Sharon would have operated the mill if the electricalmalfunction had been corrected. We need not resolve the point for thecritical fact is that the mill did not operate.[[8]] The Secretary borrows, as did the judge, from Commission decisionsemploying a reasonable predictability approach to determining whetheremployees will be in a \”zone of danger\” created by a violativecondition. _E.g_., _Gilles & Cotting, Inc_., 76 OSAHRC 30\/D9, 3 BNAOSHC 2002, 1975-76 CCH OSHD ? 20,448 (No. 504, 1976). These decisionspresuppose, however, that the violative condition already exists. _See__Clement Food Co_., 84 OSAHRC , 11 BNA OSHC 2120, 2123-24, 1984 CCH OSHD? 26,972, p. 34,633 (No. 80-607, 1984). They do not provide a basis forconcluding that a violative condition exists within the meaning ofsection 5(a)(1).”