“SECRETARY OF LABOR,Complainant,v.SPANCRETE NORTHEAST, INC.,Respondent.OSHRC Docket No. 86-0521DECISIONBefore: FOULKE, Chairman, and WISEMAN, Commissioner.BY THE COMMISSION:A compliance officer of the Occupational Safety and HealthAdministration (OSHA) inspected a construction site in Greece, New York,where Spancrete Northeast, Inc., had finished installing precastconcrete planks that would form the mezzanine floor of the one-storybuilding under construction. At the time of the inspection, the plankshad been set on metal beams, and Spancrete’s employees were grouting thecracks between the planks to make the floor level. The employees wereworking approximately 13 feet, 8 inches above the ground. Because theemployees’ work took them within a few feet of the edge of the floor andthere was no protection to keep them from falling off the edge, theSecretary of Labor issued a citation alleging that Spancrete hadcommitted a repeated violation of the standard at 29 C.F.R. ?1926.500(d)(1)[[1\/]].Spancrete contested the citation, and a hearing was held before anadministrative law judge of this Commission. The judge found that, byfailing to erect guardrails to protect its employees from falling,Spancrete had violated the standard; he vacated the citation, however,because he found that Spancrete had proved the affirmative defense ofgreater hazard. The judge’s decision was directed for review, and thecase is before the Commission pursuant to section 12(j) of theOccupational Safety and Health Act of 1970 (\”the Act\”), 29 U.S.C. ? 661(j).The issues before the Commission involve: whether Spancrete hasestablished an affirmative defense so as to escape liability for itsfailure to comply with section 1926.500(d)(1), whether the violation wasserious, whether the violation was repeated, and the amount of the penalty.FACTSThe preformed concrete planks making up the mezzanine floor wereapproximately three and a half to four feet wide, forty feet long, andabout five tons in weight. During installation of the planks,Spancrete’s employees had to stand at the edge of the last plank to helpplace the next one. The work could not be performed with guardrails inplace without the rails continually being moved to the next plank aswork progressed.At the time of the inspection, however, installation was complete,leaving an L-shaped mezzanine floor. The mezzanine’s western edge, whichwas approximately 200 feet long, was enclosed by an exterior wall. Thenorth edge of the mezzanine, which was approximately 140 feet long, wasopen, as were the two east edges and the two south edges, leavingapproximately 350 to 400 feet of unguarded perimeter.The planks were not made with right angles on their sides. They wereslightly wider at the bottom than at the top, so that there were V’sbetween the planks. When the compliance officer observed Spancrete’semployees, they were engaged in filling these V’s with cement and sandmixed with water, which was mixed in a cement mixer truck and emptiedinto a wheelbarrow for delivery to the location where it would be used.There it was put into a bucket and poured into the V’s. Some of theemployees used long-handled squeegees to push the excess from the floorinto each V and to smooth the mixture level with the floor. This processwas called grouting.There were five Spancrete employees involved in the grouting, a foremanand four laborers. The entire grouting operation took approximately fiveand a half hours. It therefore took twenty-seven and a half man-hours toperform the grouting work, of which the Secretary estimated that sevenand a half to nine man-hours were spent near the unguarded edge.The Secretary asserted that these employees should be protected fromfalling off the edge by the use of guardrails. The Secretary proposedthe use of portable metal guardrails that could be erected around theperimeter of the floor.Once the Secretary has shown that the employer has failed to comply witha standard, the employer may then show that its failure should beexcused by proving one of several affirmative defenses recognized by theCommission. Spancrete asserts that it has proved two affirmativedefenses, the greater hazard defense and the unfeasibility defense.At the hearing, the parties presented conflicting estimates of how muchtime it would take to erect these portable railings and take them down,and how long the employees would be exposed to the hazard of falling offthe unguarded edge during their installation. Spancrete argued that,because of the time it would take to erect and dismantle these portableguardrails, using the guardrails as the Secretary proposed wasinfeasible. Spancrete also asserted that because of the time employeeswould spend near the edge of the floor while erecting and dismantlingthem, the installation of the guardrails would expose employees to agreater hazard than performing the work without them.The administrative law judge found that the use of portable guardrailswas infeasible and would indeed create a greater hazard. On review,Spancrete argues that the judge was correct in finding that it hadproved both the greater hazard affirmative defense and the affirmativedefense of unfeasibility. The Secretary argues that Spancrete failed toprove one element of the greater hazard defense and that theunfeasibility defense was not properly raised. For the reasons below, wereverse the judge and affirm the citation.THE GREATER HAZARD AFFIRMATIVE DEFENSEIn order to establish the greater hazard defense, an employer must proveeach of the following three elements, namely that: (1) the hazardscreated by complying with the standard are greater than those ofnoncompliance; (2) other methods of protecting its employees from thehazards are not available; and (3) a variance is not available or thatapplication for a variance is inappropriate. Walker Towing Corp., 14 BNAOSHC 2072, 2078, 1991 CCH OSHD ? 29,239, p. 39,161 (No. 87-1359. 1991).The parties have disputed the length of time that employees would beexposed to falling while performing the grouting, as compared to thetime that they would be exposed while erecting and dismantling theportable guardrails, and the likelihood of falling during eachoperation. In addition, the parties have disagreed over which party hasthe burden of proving the element of the defense involving theavailability of other means of protection.[[2\/]]We need not inquire whether Spancrete has proved the first two elementsof the defense, because it is clear that the company has introduced noevidence on the third. The administrative law judge excused that failurebecause, in his view, proof of the first two elements of the greaterhazard defense makes it inappropriate to seek a variance. We do notagree with the judge’s reasoning. The variance element of the greaterhazard defense has been recognized by the courts of appeals and endorsedby several of them[[3\/]], which makes us unwilling to alter the elementsof the affirmative defense.Spancrete introduced no evidence at the hearing to show either that ithad applied for a variance or that application for a variance wasinappropriate. The record shows that the activity cited here is anoperation Spancrete regularly performs. Consequently, there can be noargument that the work at this site would be completed before theSecretary could act on the variance application, since Spancrete couldapply for a continuing variance for this operation. Further, on review,the company has advanced no explanation for its failure to make such anapplication. Instead, it asserts that the variance requirement is notpart of the greater hazard defense. However, the case Spancrete cites insupport of its argument relates to the unfeasibility defense, not thegreater hazard defense.The variance requirement is very much a part of an employer’s burden ofproof of the affirmative defense of greater hazard, and the judge erredin eliminating that element. Consequently, the judge erred in making afinding that the affirmative defense had been proved, and we reversethat finding.THE INFEASIBILITY AFFIRMATIVE DEFENSEWhen the citation was issued in April 1986, the unfeasibility defensedid not exist. The Secretary’s Complaint and Spancrete’s Answer werefiled in May 1986. At that time, employers could plead only theaffirmative defense of impossibility. See, e.g., M.J. Lee ConstructionCo., 7 BNA OSHC 1140, 1144, 1979 CCH OSHD ? 23,330, p. 28,227 (No.15094, 1979). Spancrete therefore could not have raised a claim ofinfeasibility in its Answer.On July 30, 1986, two months after Spancrete filed its Answer, theCommission issued its decision in Dun-Par Engineered Form Co., 12 BNAOSHC 1949, 1986-87 CCH OSHD ? 27,650 (No. 79-2553, 1986), whichredefined the impossibility defense as the infeasibility defense. Thehearing in this case took place five months later, in January, 1987.The Commission’s long-standing precedent at the time Spancrete filed itsAnswer was that an affirmative defense must be raised during the issueformulation stage of the proceedings or it is considered to have beenwaived. Chicago Bridge & Iron Co., 1 BNA OSHC 1485, 1973-74 CCH OSHD ?17,187 (No. 744, 1974), rev’d on other grounds, 514 F.2d 1082 (7th Cir.1975)[[4\/]]. In the interval between the time the Commission’s decisionin Dun-Par was issued and the hearing, Spancrete failed to amend itsanswer to add the infeasibility defense. Nor did it move to amend at thehearing. The company has therefore never pleaded this affirmative defense.Failure to plead an affirmative defense excludes that issue from thecase. Dole v. Williams Enterprises, Inc. 876 F.2d 186, 189-90 (D. C.Cir. 1989).When Spancrete presented evidence at the hearing as to the cost of theportable railings, the Secretary objected on the grounds that theevidence went to an unpleaded defense, and the Secretary later renewedthat objection. In addition, Spancrete objected when the Secretaryattempted to inquire about its profitability, which would have gone torebut Spancrete’s claim that the portable metal guardrails wereprohibitively expensive. The issue of feasibility was therefore notfully litigated by the parties, and we find no express or impliedconsent by either party to try it. Consequently, the Commission declinesto amend Spancrete’s pleadings retroactively under Rule 15 (b) of theFederal Rules of Civil Procedure. See McWilliams Forge Co., 11 BNA OSHC2128, 1984 CCH OSHD ? 26,979 (No. 80-5868), appeal dismissed, No.84-3587 (3d Cir. 1984). We therefore will not consider Spancrete’s claimthat the use of portable guardrails is infeasible, since that issue wasnot raised in a timely manner.Accordingly, we reject Spancrete’s arguments on both affirmativedefenses. We reverse the decision of the judge and find that Spancretewas in violation of 29 C.F.R. ? 1926.500(d)(1).THE DEGREE OF THE VIOLATION AND THE PENALTYThe Secretary alleged that the violation was both serious and repeatedand proposed a penalty of $800. Because the judge vacated the citation,he did not make any findings on these issues and the parties have notaddressed them on review. The Secretary suggests that the case should beremanded for the judge to make appropriate findings. The judge whopresided over the hearing in this case and who issued the decision is nolonger with the Commission. It would be an inefficient use of resourcesto remand this case because we have thoroughly reviewed the record andare able to make the necessary determinations here. Because Spancretehas not addressed these issues, we will make our order conditional inorder to allow Spancrete the opportunity to present arguments if ittakes issue with our findings.The violation was alleged to be serious. Section 17(k) of the Act, 29U.S.C. ? 666(k), provides that a violation is serious if there is \”asubstantial probability that death or serious physical harm couldresult\” from the violation. The pertinent consideration is not whetheran accident is likely to occur; rather, it is whether the result of anaccident would likely be death or serious injury. Whiting-TurnerContracting Co., 13 BNA OSHC 2155, 2157, 1989 CCH OSHD ? 28,501, p.37,772 (No. 87-1238, 1989).Spancrete’s five employees were working thirteen feet, eight inchesabove the ground floor of a construction site which had buildingmaterials and debris below. The OSHA compliance officer who conductedthe inspection testified that the probable result of a fall from themezzanine floor would be major fractures, which are serious injuries. Wetherefore find the violation to be serious. Cf. Walker Towing Corp,supra, (14-foot fall); Whiting-Turner Contracting Co., supra, (12-footfall).The Secretary also alleged that the violation was repeated. To supportthat allegation, the Secretary introduced evidence that Spancrete hadpreviously been cited for violating section 1926.500(d)(1) and that,after a hearing, that citation had been affirmed.A violation is repeated if, at the time it occurred, there was aCommission final order that the employer had committed a substantiallysimilar violation; and a prima facie showing of similarity is made if itwas a violation of the same standard. Stone Container Corp., 14 BNA OSHC1757, 1762, 1990 CCH OSHD ? 29,064, p. 38,819 (No.88-310, 1990). Becausethere is evidence that Spancrete has previously been found in violationof the standard cited here, we find that this violation was repeated.The Secretary proposed a penalty of $800. In assessing a penalty for aviolation of the Act, the Commission must give due consideration to thesize of the employer’s business, the gravity of the violation, thecompany’s good faith, and its history of previous violations. Section17(j) of the Act, 29 U.S.C. ? 666(j). Having considered the evidence inthe record relating to those factors, we consider the penalty of $800proposed by the Secretary to be appropriate.We find that Spancrete committed a serious repeated violation of 29C.F.R. ? 1926.500(d)(1) and assess a penalty of $800. Because Spancretehas not addressed the degree of the violation and the penalty, however,our order is conditional. We will afford Spancrete twenty days from thedate of this order to file with the Executive Secretary of theCommission a notice that it wishes to present arguments that theCommission has erroneously found that the violation is serious andrepeated or that the penalty is inappropriate for the offense.Accordingly, we issue a conditional order reversing the decision of theadministrative law judge, affirming a serious, repeated violation of 29C.F.R. ? 1926.500(d)(1), and assessing a penalty of $800. ShouldSpancrete notify the Commission within twenty days of the date of thisorder that it intends to file arguments on the matters not addressed bythe judge, those arguments must be filed within thirty days of the dateof this decision.Edwin G. Foulke, Jr. WisemanChairmanDated: April, 30, 1991Donald G. WisemanCommissioner————————————————————————SECRETARY OF LABOR,Complainantv.SPANCRETE NORTHEAST, INC.,RespondentOSHRC Docket No. 86-0521APPEARANCES:For the ComplainantPatricia M. Rodenhausen, Regional SolicitorU. S. Department of LaborBy: Alan L. Kammerman, Esq.Peter T. Rodgers, Esq.Lacy, Katzen, Ryen & MittlemanDECISION AND ORDERThis case arose under 29 U.S.C., ? 651 et seq., of the OccupationalSafety and Health Act of 1970 (the Act). As a result of an inspection bythe Occupational Safety and Health Administration (OSHA) of theRespondent’s premises on or about March 27, 1986, Citation #1 was issuedon or about April 7, 1986, charging that the Respondent violated ?5(a)(2) of the Act by the repeated violation of the standard at 29C.F.R. ?1926.500(d)(1) in that open-sided floors were not properly guarded.On or about April 23, 1986, the Respondent filed Notice of Contest tothe Citation and the penalty proposed therefor.The pertinent sections of the Act and the standard are appended to thisdecision under appropriate titles.THE ISSUES1. Were the Respondent’s employees exposed to a hazardous condition?2. Was the proposed correction more dangerous than the alleged hazard?The Respondent is a sub-contractor installing precast planks for themezzanine floor of a one-story building. Except for the west side, thejobsite was an open-sided floor with a perimeter of about 350-375 feet.As the planks are installed at the mezzanine level, they become a flooron which the Respondent’s employees work, placing the planks intosections and filling grout in the seams between the planks. The lastplanks to be brought up from the ground become, in turn, the outer edgeof the floor, which is constantly being extended out from the westernside toward the edge of the other three open sides.There are 2 phases to the operation: the first, laying the planks toform a floor; and the second, grouting. The grout, a mortar-likesubstance, is poured into the seams and then spread by employeeswielding a pushbroom-like utensil called a \”squeegee.\” In the course of\”grouting\” the planks, some employees came within 2 feet of the edgewhile others came as close as inches. By the date of the inspection, theplanks had all been positioned and the Respondent’s employees were\”squeegeeing.\” They were all experienced construction erectors…. (Tr.8-12, 17, 24, 86, 89, 115, 116)The hazard was the possibility of a fall from the floor’s edge to theground some 13-feet 8 inches below…. (Tr. 12)There is not much doubt that the condition was a hazardous one; the mainquestion was how, if at all, it could be abated without exposing theRespondent’s employees to greater danger.What used to be the affirmative defense of impossibility has beenchanged to infeasibility by the Review Commission’s ruling in Secretaryof Labor v. Dun-Par Engineered Form Co., 12 OSHC 1949. Under it, oncethe employer has proven infeasibility of compliance with specific meansof abatement imposed by the standard, the Secretary must prove othermeans that are practical and realistic.Abatement ProposalsThe Complainant’s witness [Compliance Officer Sargent] testified that arailing of metal or wood or cables could be placed around the perimeterof the floor by the use of vertical posts or a portable guardrailsystem. The vertical posts would have to be attached to the floor’ssurface by a clamp. . . . Sargent conceded that he did not know whetherthat solution was feasible or not …. (Tr. 41-45)As concerns the portable guardrail, Sargent said 20 to 40 would beneeded, and it was his opinion that the floor could withstand the weightof the steel base of the portable guardrail, but conceded that he hadnot performed any tests to determine whether the floor could withstandits weight . . . . (Tr. 45, 57) He also estimated it would take 2 to 3men an hour to install the steel based posts and rails, but conceded hehad never done such work. . . . (Tr. 60, 61)As concerns wire cables, he said he had performed no tests to determinehow taut the cables could be made or how many posts would have to beinstalled…. (Tr. 47, 48) There would be about 35 or 40 posts, eachseparated by 8 feet…. (Tr. 47, 48, 50) While placing the posts, theworkers would be near the edge of the floor and be exposed to the dangerof falling…. (Tr. 50, 51) Putting up posts would take about 7 hours,whereas the grouting only takes 5-5 1\/2 hours, during which workerswould be near the edge only 25% of the time, or about 1 1\/2-1-3\/4 hours…. (Tr. 52, 53, 61) He testified that installing any kind of perimeterrails and posts would increase the time of – employees actually beingnear the edge ….(Tr. 62) But he also said that the employee would betaking himself into the zone of danger less than in the groutingoperation …. (Tr. 78)Engineer Buchman, the Respondent’s vice-president, testified thatconstructing a rail around the perimeter before the planks were set isnot practical or reasonable because there is nothing to attach it to….(Tr. 88) After the planks have been set and grouting begun, thehazard is increased if the employees have to go to the edge anadditional time to install the barrier and another time to remove it….(Tr. 88, 89) To put the clamp on, a man would have to reach over theedge and fasten a 26-pound steel bracket to the outside edge of the wall…. (Tr. 94)Buchman’s testimony tended to establish that it would take 8 minutes toset a wooden post to the horizontal floor; and 90 posts would take 12hours …. (Tr. 92) To remove the posts then would take 4 minutes a postor 6 additional hours …. (Tr. 92) He said such an abatement proposalis impractical, unreasonable, infeasible, and a greater hazard toemployees …. (Tr. 95) He also testified that equipment weighing over2,000 pounds would have to be brought to the jobsite; and he estimatedthat the cost of rental, loading, and unloading of such equipment wouldcome to $16,500-about 22% of the total contract price. In his opinion,it is not practical or reasonable to install standard rail guards or theheavy metal-based ones…. (Tr. 102)The testimony of Schrader, the Respondent’s erection foreman, tended toestablish that the grouting operation took about 5 1\/2 hours, of whichabout 8-10% was spent by 3 men doing the floor’s perimeter. In hisopinion, there was no hazard because the men knew of the danger, wereexperienced, and were extra careful …. (Tr. 116, 117) He testifiedthat, before the grouting, there is no place to put a railing; and afterthe floor has been completed, the clamping method cannot be used becausethere is no open edge ….(Tr. 119) He said there is a hazard ininstalling the posts and more equipment– electric cords, drills and ahammer–must be handled by employees than just the squeegee. In hisopinion, installing the posts is not a practical or reasonable solution,and it exposes employees to a greater hazard of falling off the edge….(Tr. 120) In addition, a similar operation would have to be undertakento remove them…. (Tr. 121).As concerns the portable rail guard, Schrader said it is heavy and it isnot practical to lift it and move it around the floor…. (Tr. 125).The HazardThe Respondent’s employees will be exposed to a hazard regardless ofwhether the present method of operation is continued or is replaced byone of the methods described by the Compliance Officer. The onlydifference [if any] is one of degree. If employees exercise ordinarycare in spreading grout with squeegees, it is not necessary for them toturn their backs to the floor’s edge [the zone of danger] or to comecloser to it than about 2 1\/2 feet [the length of the squeegee’shandle]. It is also not necessary for an employee to go near the zone ofdanger other than once [to spread the grout]; and then he need have onlyone implement in his hands, the squeegee. On the other hand, under themethod of rails supported by vertical posts affixed to the floor, someemployees would have to be in the zone of danger twice [once setting thebarrier up and once taking it down] while carrying or working withequipment such as an electric cord, drill, hammer, etc., used inerecting the barrier. Moreover, if the employee used one type of clasp-a26-pound base-the employee would have to lean over the floor’s edge toattach it…. (Tr. 94)If the portable barrier were used, other unanswered questions andunsolved problems arise involving how its weight is handled, how it getsmoved around the floor, whether the floor can sustain the weight, howthe equipment gets up to the jobsite, and so on. There simply was notsufficient evidence about the portable barrier to permit any realisticand practical evaluation of it.As the Compliance Officer testified about the clamp type of barrier, hejust did not know whether the proposal was feasible or not…. (Tr. 43-45)TimeThere is still another factor to be considered: the time employees spentin the zone of danger under the present operation as compared to whatwould be spent under the proposed system of a barrier. The Complainant’sevidence tended to establish that employees spent 51\/2 man-hours in thezone of danger under the present operation as compared to 7 man-hoursthat would be spent under the barrier proposal…. (Tr. 52, 53) TheRespondent estimated that employees would spend 18 man-hours under thebarrier proposal-12 hours installing the posts and 6 hours removingthem–as compared to 51\/2 man-hours under present conditions…. (Tr.92, 116)Both estimates were, of course, only estimates. However, even taking thefigures most favorable to the Complainant’s position, I find that thereis no appreciable difference in the time employees would spend in thezone of danger under either the present operation or the proposedreplacement of it by a barrier.The Greater HazardAs concerns the two grouting methods discussed [a standard railing ornone] I find that the standard railing solution creates a greater hazardto employees than the present method of operation followed by theRespondent [the use of squeegees and the exercise of ordinary care bythe employees].VarianceShould there have been a request by the Respondent for a variance?In the instant case, the Respondent did not ask for one …. (Tr. 82)The Review Commission has taken the position in several cases that,where the Respondent claims it was less dangerous to violate theparticular standard than to comply with it, the Respondent must show itwas refused a variance or it was inappropriate to ask for one.Section 655(d) of the Act says that the Secretary shall grant a varianceapplication if the methods used by the employer \”are as safe and healthyas those which would prevail if he complied with the standard.\” As ALJDeBenedetto pointed out in the Consolidated Rail case [78-4881], thatlanguage of the Act carries with it a \”catch-22\” or self-defeatingresult in that it requires a party seeking a variance to establish thatit is not entitled to it. That is because, once it has been shown thatcompliance with the standard is more hazardous than non-compliance, thealternative method proposed to be used for a variance only has to be \”assafe\” as the standard–which was already determined to result in agreater hazard. In those circumstances, it would obviously beinappropriate to seek a variance.Alternate FindingThe law on \”impossibility\” or infeasibility\” has been somewhatunsettled. For that reason, it may be helpful to add an alternatefinding. As such, I find that, whether or not any weight be accorded tofinancial considerations, the Respondent has established by apreponderance of the evidence that the Complainant’s proposed method ofabatement is neither reasonable nor practical.FINDINGS OF FACTHaving heard the testimony, observed the witnesses, and examined theexhibits, the following Findings of Fact are made:1. At all times concerned, the Respondent regularly received, handled orworked with goods which had moved across state lines.2. As concerns Citation #1, an open-sided floor more than 6 feet aboveground level was not guarded by a standard railing or the equivalent.3. The conditions described in paragraph 2 above could not be correctedwithout exposing employees to a greater hazard.4. The conditions described in Citation #1 exposed the Respondent’semployees to sustaining serious or fatal harm because of the hazard offalling.5. One or more officers or supervisory personnel of the Respondent knewof the hazardous conditions described herein and knew that employeeswere exposed to such hazard.CONCLUSIONS OF LAW1. At all times concerned, the Respondent was an employer engaged in abusiness affecting commerce within the meaning of the Act; and theOccupational Safety and Health Review Commission has jurisdiction overthe subject matter and the parties.2. At all times concerned, the Respondent knew, or with the exercise ofdue diligence should have known, of the alleged violation.3. On the date in question, the Respondent was not in compliance withthe standard at 29 C.F.R. ? 1926.500(d)(1) but compliance would haveresulted in a greater hazard.4. The Complainant has not sustained the burden of proving theRespondent violated 29 C.F.R. ? 1926.500(d)(1) and ? 5(a)(2) of the Act(?654).ORDERThe whole record having been considered, it is ordered: Citation #1 andthe penalty proposed therefor are vacated.SO ORDERED.FOSTER FURCOLOJudge, OSHRCDated: April 20, 1987Boston, MassachusettsAPPENDIX THE ACTSection 654 [section 5(a)(2)] Employer \”…shall comply withoccupational safety and health standards….\”Section 666 [section 17(a)] \”…employer who willfully or repeatedlyviolates…this Act…may be assessed a civil penalty of not more than$10,000 for each violation.\”Section 666 [section 17(b)] \”…employer who has received a citation fora serious violation…of this Act…shall be assessed a civil penalty ofup to $1,000 for each such violation.\”Section 666 [section 17(k)] \”… a serious violation shall be deemed toexist…if there is a substantial probability that death or seriousphysical harm could result…unless the employer did not, and couldnot…know of the presence of the violation.\”THE STANDARD29 C.F.R. ? 1926.500(d)(1): \”Every open-sided floor or platform 6 feetor more above adjacent floor or ground level shall be guardedby a standard railing, or the equivalent….\”————————————————————————FOOTNOTES:[[1\/]] That standard provides:? 1926.500 Guardrails, handrails, and covers.* * *(d) Guarding of open-sided floors, platforms, and runways. (1) Everyopen-sided floor or platform 6 feet or more above adjacent floor orground level shall be guarded by a standard railing, or the equivalent,as specified in paragraph (f)(1) of this section, on all open sides,except where there is entrance to a ramp, stairway, or fixed ladder. Therailing should be provided with a standard toeboard wherever, beneaththe open sides, persons can pass, or there is moving machinery, or thereis equipment with which falling materials could create a hazard.The standard printed in the Code of Federal Regulations contains amisprint. The version set out above is the correct version. See 44 Fed.Reg. 8577, 8637 (Feb. 9, 1979). When the standard was codified, it wasincorrectly printed to refer to paragraph \”(f)(1)(i),\” and that errorhas not yet been corrected.[[2\/]] Although the misprint in the Code of Federal Regulations ismisleading, the version of the standard originally printed in theFederal Register makes it clear that any of the railings described in1926.500(f)(1)(i) – (vi) would satisfy the requirements of1926.500(d)(1). The abatement proposed by the Secretary is therefore oneof several possible methods of complying with the standard, not analternative method. This fact is significant in the context of anaffirmative defense, because it means that the employer must prove theelements of that defense with respect to portable metal railings andthat the Secretary does not have the burden of proving them to be feasible.[[3\/]] See Dole v. Williams Enterprises, Inc., 876 F.2d 186, 188 (D.C.Cir. 1989); Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1389 n.13(D.C. Cir. 1985) (found affirmative defense not proved because noevidence of application for variance); RSR Corp. v. Donovan, 747 F.2d294, 303 (5th Cir. 1984); Donovan v. Williams Enterprises, Inc., 744F.2d 170, 178 n.12 (D.C. Cir. 1984) (greater hazard defense not possiblebecause company did not apply for variance); True Drilling Co. v.Donovan, 763 F.2d 1087, 1090 (9th Cir. 1983) (rejected attack onvariance requirement); Modern Drop Forge Co. v. Secretary, 683 F.2d1105, 1116 (7th Cir. 1982) (variance element \”important\”); PBR, Inc. v.Secretary, 643 F.2d 890, 895 (1st Cir. 1981) (variance requirementnecessary to ensure that employees not exposed to hazards becauseemployer incorrectly assumes its practice safer than complying); H.S.Holtz Construction Co. v. Marshall, 627 F.2d 149, 152 (8th Cir. 1980)(application for a variance found to be inappropriate; did not rule onappropriateness of elements of Commission’s greater hazard defense);Voegele Co. v. OSHRC, 625 F.2d 1075, 1080-81 (3d Cir. 1980); NoblecraftIndus. v. Secretary, 614 F.2d 199, 205 (9th Cir. 1980) (upheld variancerequirement); General Electric Co. v. Secretary, 576 F.2d 558, 560-61.(3d Cir. 1978) (upheld variance requirement); Irwin Steel Erectors, Inc.v. OSHRC, 574 F.2d 222, 223-24 (5th Cir. 1978). Cf. Diebold, Inc. v.Marshall, 585 F.2d 1327, 1339 (6th Cir. 1978) (courts look withjaundiced eye on claims of technological infeasibility raised withoutfirst seeking variance or amendment of standard).[[4\/]] That requirement was subsequently incorporated into Rule 36(b) ofthe Commission’s Rules of Procedure, 29 C.F.R. ? 2200.36(b). 51 Fed.Reg. 32,015, 32,021 (1986); 52 Fed. Reg. 13,831 (1987).”