“Docket No. 80-7251 SECRETARY OF LABOR, Complainant, v.SHARON STEEL CORPORATION, Respondent. UNITED STEELWORKERS OF AMERICA, LOCAL 1197,Authorized Employee Representative.OSHRC Docket No. 80-7251DECISIONBefore:\u00a0 BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).Sharon Steel Company (\”Sharon\”)operates a steel processing facility in Farrell, Pennsylvania.\u00a0 Following an OSHAinspection of the worksite on August 19, 1980, the Secretary of\u00a0 Labor issued acitation alleging that Sharon violated the Act’s \”general duty\” clause[[1]] inthat employees performing a certain maintenance operation were exposed to a hazard ofbeing struck by flying fragments of steel.\u00a0 Administrative Law Judge George O.Taylor, Jr. concluded that Sharon violated the Act as alleged.\u00a0 We reverse and vacatethe citation.The citation alleged that employees were exposedto the hazard of flying steel while working on machinery Sharon uses to temper, or harden,the surface of sheet steel.\u00a0 Sheet steel arrives at Sharon’s Number 28 Temper Mill onlarge rolls.\u00a0 A roll is placed vertically on a device called a vertihort, thefunction of which is to change the sheet steel’s orientation from vertical to horizontal.The horizontally-oriented steel that emerges from the vertihort is then threaded aroundand past two rollers before passing through the temper mill.\u00a0 The function of theserollers, called \”bridle rolls,\” is to maintain the proper tension in the steel.\u00a0Sharon’s temper mill is the only one in North America that uses such a vertihortarrangement.Normal wear of the bridle rolls requires theirreplacement two or three times per year.\u00a0 The rolls are also replaced on infrequentoccasions when unexpected defects develop.\u00a0 When the bridle rolls are being changed,sheet steel cannot be run off the vertihort. However, operation of the mill can continueby placing the roll of steel being fed into the mill on a horizontal reel, called thepayoff reel, located between the bridle rolls and the temper mill.\u00a0 It was Sharon’spolicy to shut down the 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 6inches from bridle roll No. 1.\u00a0 However, since bridle roll No. 2 was 6 feet fartheraway from the payoff reel, employees could change bridle roll No. 2 while sheet steel wasbeing fed into the mill from the payoff reel.\u00a0 The Secretary alleges that employeeswho changed bridle roll No. 2 while steel was being fed off the payoff reel were exposedto the hazard of flying fragments of steel in violation of section 5(a)(1) of the Act.The evidence in the record indicates that onoccasion the sheet of steel breaks while being fed off the payoff reel at high speeds.When that occurs, the broken end could shatter upon striking a solid object, producingfragments of steel.\u00a0 There was conflicting evidence as to whether these fragmentscould endanger employees working on bridle roll No. 2.\u00a0 Several Sharon employeestestified that they were nearly struck by flying fragments of steel while they wereworking on or near bridle roll No. 2 and steel was being run off the payoff reel.\u00a0 Onthe other hand, the company presented testimony that employees changing bridle roll No. 2would be protected by floor plates and other barriers and hence would not be exposed to ahazard even if flying fragments of steel were produced.There was also conflicting evidence as towhether Sharon knew that the operation of the mill off the payoff reel could produceflying steel fragments.\u00a0 There was testimony that some employees had attempted tobring the problem to management’s attention. However, all of Sharon’s management personnelwho had responsibility for the safety of the mill’s operation testified that they wereunaware of any incidents of flying steel and had never been informed by employees of anyconcern over flying steel.\u00a0 We need not resolve these conflicts, however, because wefind that there was no hazard established on the day of the inspection, or within thepreceding 6 months, and because we may not affirm a citation based upon the possibility ofa future or prospective violation.To prove that an employer violated section5(a)(1), the Secretary must first show that a condition or activity in the employer’sworkplace presents a hazard to employees.\u00a0 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).\u00a0 He must then prove that the cited employer or the employer’s industryrecognizes the hazard.\u00a0 Davey Tree Expert Co., 84 OSAHRC 11\/D11, 11 BNA OSHC1898, 1984 CCH OSHD ? 26,852 (No. 77-2350, 1984).\u00a0 The Secretary must further provethat the hazard is likely to cause death or serious physical harm and that feasible meansexist to eliminate or materially reduce the hazard.\u00a0 Phillips Petroleum 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 thiscase, the Secretary asserts that fragments of flying steel can be generated when Sharon’sNumber 28 Temper Mill is being fed from the payoff reel, and that these fragments endangeremployees if they are performing maintenance on bridle roll No. 2 at the same time.\u00a0The Secretary presented the testimony of several Sharon employees who said that theyhad, in the past, worked on bridle roll No. 2 while the mill was running off the payoffreel.\u00a0 The latest such incident occurred in December, 1979, eleven months before thecitation was issued.\u00a0 Sharon cannot be charged with a violation of the Act based onthese occurrences because they took place outside the six month statute of limitationsperiod imposed by section 9(c) of the Act.\u00a0 29 U.S.C. 658(c).[[2]] \u00a0The onlyevidence tending to show that the allegedly hazardous activity occurred within six monthsof the citation’s issuance pertains to the day of the OSHA inspection.[[3]]\u00a0 TheSecretary does not argue that any prior instances form the basis of his allegations;indeed, at the hearing he specifically stated that the alleged violation occurred on theday of the inspection, Aug. 19, 1980.\u00a0 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 off the vertihort, notthe payoff reel.\u00a0 The bridle roll No. 2 was observed to be slightly misshapen. \u00a0Mill superintendent Bible therefore decided to replace that bridle roll after the roll ofsheet steel that was then on the vertihort had been completely processed. \u00a0 The lastof the steel on the vertihort passed through the mill at 1:10 p.m.[[4]] \u00a0Atapproximately noon, millwrights Griffin and Lizzie were assigned the task of changingbridle roll No. 2.\u00a0 According to Griffin, they gathered their tools and went to thearea at about 12:30, when the mill was still running off the vertihort.\u00a0 Griffin, theonly one of the two millwrights to testify, was uncertain whether the mill was inoperation during the time they were replacing the bridle roll.Shortly after lunch, the inspection party,consisting of OSHA compliance officer Sutton and a number of Sharon representatives,arrived at the mill.\u00a0 Sutton testified that he observed the millwrights replacing theNo. 2 bridle roll while steel was running off the payoff reel into the temper mill.\u00a0However, Sharon’s assistant superintendent, Schell, explained that they wereattempting to run the mill while the inspection party was there, but were not able to doso due to an electrical malfunction.\u00a0 Schell testified that the mill was being\”jogged\” back and forth in an attempt to cure the electrical problem, but thisproved unsuccessful and the mill was shut down entirely at 1:30 until after the bridleroll change was completed.Judge Taylor accepted Schell’s version of whattranspired during the inspection, i.e., that the mill was being jogged. \u00a0Nevertheless, he found 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.\u00a0 He concludedthat the fact the mill was being jogged was sufficient to establish that steel was beingfed into the mill off the payoff reel within the meaning of the citation. \u00a0 Moreover,the judge said that even if the steel was unlikely to break during the jogging procedure,Sharon’s intent to operate the mill if the electrical problem had been correctedestablished that Sharon’s employees were \”within the zone of danger that exists whensteel is being processed off the payoff reel under normal conditions.\”We believe the evidence is clear that no hazard existed on the day of the inspection.\u00a0The preponderance of the evidence establishes that the mill was not operating duringthe inspection, but was only being jogged. [[5]]\u00a0 There is no evidence suggestingthat a flying steel hazard exists when the mill is being jogged.\u00a0 When the mill isoperated with steel being fed from the payoff reel, the steel normally moves through themill at a speed of 1000 feet per minute.\u00a0 The record does not establish precisely howfast the steel moves when the mill is being jogged, but it does indicate that the speed ismuch lower than during normal operation.\u00a0 One of the employees who testified he wasnearly struck by flying steel, Paul Dzaja, testified that the steel shattered when thebroken end on the payoff reel hit an I-beam between the payoff reel and the bridlerolls.\u00a0 For the sheet steel to shatter in this manner, it must have been moving at arelatively high speed.\u00a0 Another of the employees who experienced an incident offlying steel, Robert Alter, testified that the mill was operating at high speed at thetime.[[6]]\u00a0 It thus appears that flying steel fragments were generated only when thesteel broke as it was moving through the mill at high speed.\u00a0 There is no evidencetending to show that the steel could shatter into fragments at slow speed when the mill isbeing jogged, and accordingly, the Secretary did not prove that a hazard existed on theday of the inspection.The judge essentially concluded that a violationoccurred because Sharon intended to operate the mill during the bridle roll change if theelectrical malfunction had been corrected.[[7]]\u00a0 The Secretary, reasoning similarly,argues that a violation should be found because Sharon’s policy to replace bridle roll No.2 with the mill operating made it reasonably predictable that employees would be exposedto the hazard alleged in the citation.[[8]]\u00a0 It is clear that both the judge and theSecretary are relying on the possibility of a prospective violation.\u00a0 The Act,however, does not permit citations founded on the possibility of future violations. \u00a0Section 9(c) of the Act is unambiguous.\u00a0 A citation may be issued only within sixmonths of the \”occurrence\” of a \”violation.\”\u00a0 The mere existenceof an unimplemented policy is not the \”occurrence\” of a\”violation.\”\u00a0 In the absence of evidence of a violation within six monthsof the issuance of a citation, Sharon cannot be found in violation of the Act.We conclude that Sharon did not violate section5(a)(1) of the Act.\u00a0 The judge’s decision is reversed and the citation is vacated.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 November 19, 1985BUCKLEY, Chairman, concurring:I concur with the conclusions of the leadopinion, and with the reasons stated therein.\u00a0 It is clear that, offered by the ALJan opportunity to amend the complaint, the Secretary’s solicitor declined and expresslystated that he intended to prove that the violation of the general duty clause (29 U.S.C.654 (a)(1)) occurred on the date of the compliance officer’s inspection, August 19, 1980.\u00a0It is also clear that he failed to prove that violation for the reasons stated inthe lead opinion.But even had the amendment to the complaint beenmade, I would find that the Secretary failed to carry his burden of establishing anyviolation of the general duty clause because he failed to establish the existence of arecognized hazard in the workplace at any time.In order to show that a hazard is recognizedwithin the meaning of section 5(a)(1), the Secretary must prove that an allegedlyviolative condition or practice was known both to exist in the workplace and to behazardous either by the cited employer or generally within the employer’s industry.\u00a0 NationalRealty & Construction Co. v. OSHRC, 489 F.2d 1257, 1265 n.32 (D.C. Cir. 1973).\u00a0As the alleged hazard in this case results from practices associated with machinerythat is unique to Sharon, the hazard could not have been known generally within the steelindustry.\u00a0 Thus, the Secretary would have to show either that, at the time of thealleged violation, Sharon itself knew of the hazard, or that a reasonable person familiarwith Sharon’s operation would have known of the hazard.\u00a0 See Usery v.Marquette Cement Manufacturing Co., 568 F.2d 902, 910 (2d Cir. 1977); LittonSystems, 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, 625F.2d 726, 731 (6th Cir. 1980) (29 C.F.R. ? 1926.28(a)).\u00a0 The Secretary did not makesuch a showing.The No. 28 Temper Mill had been in operationsince 1966 with no injuries from flying steel.\u00a0 Moreover, several Sharon supervisorshad worked in the plant during most or all of the time the No. 28 Temper Mill had beenoperating and could reasonably believe they were thoroughly familiar with its operationand that the operation’s safety was not open to serious dispute.\u00a0 Sharon could nothave learned of any hazard from the experience of other companies in its industry sincethe arrangement of the machinery giving rise to the complaint was unique to Sharon’splant.\u00a0 Thus, the accumulated experience of Sharon and its industry in operatingtemper mills did not put Sharon on notice that it might be dangerous to replace bridleroll No. 2 with the mill in operation.Although two employees who testified they hadexperienced incidents of flying steel said that they brought the problem to the attentionof their foremen, their testimony was contradicted by the two foremen.\u00a0 Sharon’ssuperintendent, Charles Bible, as well as three supervisors, also testified categoricallythat they were unaware of any incidents of flying steel and had received no complaints orreports of any such incidents.\u00a0 One of these, the Corporate Safety Director, who wasa member of, and regularly attended meetings of, the Management-Union Safety Committee,testified that in his three and one-half years no report had ever been made of a hazard offlying steel.\u00a0 The Secretary elicited testimony purporting to demonstrate the effortby employees to bring the problem to the company’s attention through evidence of agrievance filed following an incident on December 12, 1979.\u00a0 According to thegrievance, two employees assigned to change the bridle roll complained to their foremanthat the job was \”unsafe.\”\u00a0 The foreman insisted the job was not unsafe andtold the employees they would be subject to discipline if they refused to do it.\u00a0 Theemployees then performed the task.\u00a0 Notably, the employees did not tell the foremanwhy they thought the job was unsafe, and the grievance papers did not mention any problemof flying steel.\u00a0 Indeed, the relief sought by the grievance was only that theforeman apologize for threatening the employees with discipline, not that Sharon changeits policy of replacing the bridle roll while the mill was in operation.\u00a0 Thegrievance therefore gave Sharon no reason to believe that the employees were concernedwith a hazard other than the obvious one of contacting the rotating roll of steel on thepayoff reel, a hazard that Sharon believed had been eliminated by its policy of notworking on bridle roll No. 1 with the mill running off the payoff reel.\u00a0 Sharon couldcertainly expect that employees concerned about a hazard associated with a bridle rollchange would have been much more specific about the nature of the hazard. The grievancetherefore did not put Sharon on notice that flying steel fragments could endangeremployees working on bridle roll No. 2.In finding that Sharon recognized that a hazardof flying steel existed while employees were changing bridle rolls, Judge Taylor reliedprimarily on testimony of employee Rocky Vadala, a crane operator and Union SafetyOfficer.\u00a0 Vadala was first called to testify by the Secretary.\u00a0 His testimonywas that he operated overhead cranes in all of the Sharon mills and had seen flying steelmany times in the No. 28 Temper Mill.\u00a0 However, he was unable to state that he hadseen flying steel when the steel was running off of the payoff reel or that millwrightswere changing a bridle roll at a time that he observed flying steel.After the Respondent rested, he was recalled asa witness by the authorized employee representative to rebut Bible’s testimony that liewas not aware of any flying steel hazard.\u00a0 On direct examination, Vadala did not saythat he had told Bible about flying steel, but only that working on the bridle rolls withthe mill running was \”unsafe.\”\u00a0 After the completion of Vadala’s directtestimony, Sharon’s counsel pointed out that Vadala had not rebutted Bible’s statementthat he had never been told about flying steel.\u00a0 Following some colloquy,Respondents’ attorney proceeded to cross-examine the witness.\u00a0 Vadala was at firstevasive.\u00a0 Asked whether he told Bible about flying steel, he answered, \”I wasn’tasked to tell him that.\”\u00a0 On being pressed, he responded that he told Biblethere was a \”safety problem,\” and only after being pressed further did he state,\”I explained to Mr. Bible…that there was flying steel….\” When asked whetherhe told Bible about a specific incident of flying steel, his answer was that he could notremember the entire conversation.\u00a0 He later stated that he \”might have told himabout the incident of flying steel.\”I find Vadala’s testimony on the whole to beself-contradictory and vague, and inadequate to establish that Respondent knew or shouldhave known that a hazard of flying steel existed in the No. 28 Temper Mill.For the foregoing reason, I find that theSecretary failed to carry his burden of establishing that a recognized hazard existed inthe workplace.\u00a0 I therefore concur for this additional reason in the vacation of thecitation.FOOTNOTES: [[1]] The general duty clause is section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), whichprovides:\u00a0 \”[e]ach employer . . . shall furnish to each of his employeesemployment and a place of employment which are free from recognized hazards that arecausing or are likely to cause death or serious physical harm to his employees.\”[[2]] Section 9(c) of the Act provides:\”No citation may be issued under thissection after the expiration of six months following the occurrence of anyviolation.\”[[3]] The record indicates that the bridle rollswere changed a week before 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, that there is any hazardto employees when steel is run off the vertihort. [[5]] Compliance officer Sutton was the onlywitness who testified that the mill was \”operating\” during the inspection.\u00a0However, Sutton was not familiar with the mill’s operation and could well have equated themovement of steel through the mill during the jogging procedure with the mill being\”in operation.\”\u00a0 Moreover, Sutton testified that he was informed during theinspection that the mill was \”not operating up to normal.\”[[6]] Alter testified that the steel was moving at 2000 feet per minute when the incidentoccurred.\u00a0 This cannot be entirely accurate, for the mill’s maximum speed is 1500feet per minute.\u00a0 It does suggest, however, that the mill was engaged in its normalhigh-speed operation.[[7]] It is not clear from the record that thiswas Sharon’s intent.\u00a0 There is some testimony indicating that Sharon was notattempting to operate the mill during the inspection but was only trying to demonstratethe process to the compliance officer.\u00a0 Other testimony indicates that Sharon wouldhave operated the mill if the electrical malfunction had been corrected.\u00a0 We need notresolve the point for the critical fact is that the mill did not operate.[[8]] The Secretary borrows, as did the judge,from Commission decisions employing a reasonable predictability approach to determiningwhether employees will be in a \”zone of danger\” created by a violativecondition.\u00a0 E.g., Gilles & Cotting, Inc., 76 OSAHRC 30\/D9, 3 BNAOSHC 2002, 1975-76 CCH OSHD ? 20,448 (No. 504, 1976).\u00a0 These decisions presuppose,however, that the violative condition already exists.\u00a0 See Clement Food Co.,84 OSAHRC , 11 BNA OSHC 2120, 2123-24, 1984 CCH OSHD ? 26,972, p. 34,633 (No. 80-607,1984).\u00a0 They do not provide a basis for concluding that a violative condition existswithin the meaning of section 5(a)(1).”