“Docket No. 86-0521 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 SpancreteNortheast, Inc., had finished installing precast concrete planks that would form themezzanine floor of the one-story building under construction. At the time of theinspection, the planks had been set on metal beams, and Spancrete’s employees weregrouting the cracks between the planks to make the floor level. The employees were workingapproximately 13 feet, 8 inches above the ground. Because the employees’ work took themwithin a few feet of the edge of the floor and there was no protection to keep them fromfalling off the edge, the Secretary 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 beforean administrative law judge of this Commission. The judge found that, by failing to erectguardrails to protect its employees from falling, Spancrete had violated the standard; hevacated the citation, however, because he found that Spancrete had proved the affirmativedefense of greater hazard. The judge’s decision was directed for review, and the case isbefore the Commission pursuant to section 12(j) of the Occupational Safety and Health Actof 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 its failure to complywith section 1926.500(d)(1), whether the violation was serious, whether the violation wasrepeated, and the amount of the penalty.FACTS The preformed concrete planks making up the mezzanine floorwere approximately three and a half to four feet wide, forty feet long, and about fivetons in weight. During installation of the planks, Spancrete’s employees had to stand atthe edge of the last plank to help place the next one. The work could not be performedwith guardrails in place without the rails continually being moved to the next plank aswork progressed.At the time of the inspection, however, installation wascomplete, leaving an L-shaped mezzanine floor. The mezzanine’s western edge, which wasapproximately 200 feet long, was enclosed by an exterior wall. The north edge of themezzanine, which was approximately 140 feet long, was open, as were the two east edges andthe two south edges, leaving approximately 350 to 400 feet of unguarded perimeter.The planks were not made with right angles on their sides. Theywere slightly wider at the bottom than at the top, so that there were V’s between theplanks. When the compliance officer observed Spancrete’s employees, they were engaged infilling these V’s with cement and sand mixed with water, which was mixed in a cement mixertruck and emptied into 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 the employees usedlong-handled squeegees to push the excess from the floor into each V and to smooth themixture level with the floor. This process was called grouting.There were five Spancrete employees involved in the grouting, aforeman and four laborers. The entire grouting operation took approximately five and ahalf hours. It therefore took twenty-seven and a half man-hours to perform the groutingwork, of which the Secretary estimated that seven and a half to nine man-hours were spentnear the unguarded edge.The Secretary asserted that these employees should be protectedfrom falling off the edge by the use of guardrails. The Secretary proposed the use ofportable metal guardrails that could be erected around the perimeter of the floor.Once the Secretary has shown that the employer has failed tocomply with a standard, the employer may then show that its failure should be excused byproving one of several affirmative defenses recognized by the Commission. Spancreteasserts that it has proved two affirmative defenses, the greater hazard defense and theunfeasibility defense.At the hearing, the parties presented conflicting estimates ofhow much time it would take to erect these portable railings and take them down, and howlong the employees would be exposed to the hazard of falling off the unguarded edge duringtheir installation. Spancrete argued that, because of the time it would take to erect anddismantle these portable guardrails, using the guardrails as the Secretary proposed wasinfeasible. Spancrete also asserted that because of the time employees would spend nearthe edge of the floor while erecting and dismantling them, the installation of theguardrails would expose employees to a greater hazard than performing the work withoutthem.The administrative law judge found that the use of portableguardrails was infeasible and would indeed create a greater hazard. On review, Spancreteargues that the judge was correct in finding that it had proved both the greater hazardaffirmative defense and the affirmative defense of unfeasibility. The Secretary arguesthat Spancrete failed to prove one element of the greater hazard defense and that theunfeasibility defense was not properly raised. For the reasons below, we reverse the judgeand affirm the citation.THE GREATER HAZARD AFFIRMATIVE DEFENSEIn order to establish the greater hazard defense, an employermust prove each of the following three elements, namely that: (1) the hazards created bycomplying with the standard are greater than those of noncompliance; (2) other methods ofprotecting its employees from the hazards are not available; and (3) a variance is notavailable or that application 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 employeeswould be exposed to falling while performing the grouting, as compared to the time thatthey would be exposed while erecting and dismantling the portable guardrails, and thelikelihood of falling during each operation. In addition, the parties have disagreed overwhich party has the 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 twoelements of the defense, because it is clear that the company has introduced no evidenceon the third. The administrative law judge excused that failure because, in his view,proof of the first two elements of the greater hazard defense makes it inappropriate toseek a variance. We do not agree with the judge’s reasoning. The variance element of thegreater hazard defense has been recognized by the courts of appeals and endorsed byseveral of them[[3\/]], which makes us unwilling to alter the elements of the affirmativedefense.Spancrete introduced no evidence at the hearing to show eitherthat it had applied for a variance or that application for a variance was inappropriate.The record shows that the activity cited here is an operation Spancrete regularlyperforms. Consequently, there can be no argument that the work at this site would becompleted before the Secretary could act on the variance application, since Spancretecould apply for a continuing variance for this operation. Further, on review, the companyhas advanced no explanation for its failure to make such an application. Instead, itasserts that the variance requirement is not part of the greater hazard defense. However,the case Spancrete cites in support of its argument relates to the unfeasibility defense,not the greater hazard defense.The variance requirement is very much a part of an employer’sburden of proof of the affirmative defense of greater hazard, and the judge erred ineliminating that element. Consequently, the judge erred in making a finding that theaffirmative defense had been proved, and we reverse that finding.THE INFEASIBILITY AFFIRMATIVE DEFENSEWhen the citation was issued in April 1986, the unfeasibilitydefense did not exist. The Secretary’s Complaint and Spancrete’s Answer were filed in May1986. At that time, employers could plead only the affirmative defense of impossibility.See, e.g., M.J. Lee Construction Co., 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,the Commission issued its decision in Dun-Par Engineered Form Co., 12 BNA OSHC 1949,1986-87 CCH OSHD ? 27,650 (No. 79-2553, 1986), which redefined the impossibility defenseas the infeasibility defense. The hearing in this case took place five months later, inJanuary, 1987.The Commission’s long-standing precedent at the time Spancretefiled its Answer was that an affirmative defense must be raised during the issueformulation stage of the proceedings or it is considered to have been waived. ChicagoBridge & Iron Co., 1 BNA OSHC 1485, 1973-74 CCH OSHD ? 17,187 (No. 744, 1974), rev’don other grounds, 514 F.2d 1082 (7th Cir. 1975)[[4\/]]. In the interval between the timethe Commission’s decision in Dun-Par was issued and the hearing, Spancrete failed to amendits answer to add the infeasibility defense. Nor did it move to amend at the hearing. Thecompany has therefore never pleaded this affirmative defense.Failure to plead an affirmative defense excludes that issuefrom the case. 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 the portable railings,the Secretary objected on the grounds that the evidence went to an unpleaded defense, andthe Secretary later renewed that objection. In addition, Spancrete objected when theSecretary attempted to inquire about its profitability, which would have gone to rebutSpancrete’s claim that the portable metal guardrails were prohibitively expensive. Theissue of feasibility was therefore not fully litigated by the parties, and we find noexpress or implied consent by either party to try it. Consequently, the Commissiondeclines to amend Spancrete’s pleadings retroactively under Rule 15 (b) of the FederalRules of Civil Procedure. See McWilliams Forge Co., 11 BNA OSHC 2128, 1984 CCH OSHD ?26,979 (No. 80-5868), appeal dismissed, No. 84-3587 (3d Cir. 1984). We therefore will notconsider Spancrete’s claim that the use of portable guardrails is infeasible, since thatissue was not raised in a timely manner.Accordingly, we reject Spancrete’s arguments on bothaffirmative defenses. We reverse the decision of the judge and find that Spancrete was inviolation 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 andrepeated and proposed a penalty of $800. Because the judge vacated the citation, he didnot make any findings on these issues and the parties have not addressed them on review.The Secretary suggests that the case should be remanded for the judge to make appropriatefindings. The judge who presided over the hearing in this case and who issued the decisionis no longer with the Commission. It would be an inefficient use of resources to remandthis case because we have thoroughly reviewed the record and are able to make thenecessary determinations here. Because Spancrete has not addressed these issues, we willmake our order conditional in order to allow Spancrete the opportunity to presentarguments if it takes issue with our findings.The violation was alleged to be serious. Section 17(k) of theAct, 29 U.S.C. ? 666(k), provides that a violation is serious if there is \”asubstantial probability that death or serious physical harm could result\” from theviolation. The pertinent consideration is not whether an accident is likely to occur;rather, it is whether the result of an accident would likely be death or serious injury.Whiting-Turner Contracting 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, eightinches above the ground floor of a construction site which had building materials anddebris below. The OSHA compliance officer who conducted the inspection testified that theprobable result of a fall from the mezzanine floor would be major fractures, which areserious injuries. We therefore find the violation to be serious. Cf. Walker Towing Corp,supra, (14-foot fall); Whiting-Turner Contracting Co., supra, (12-foot fall).The Secretary also alleged that the violation was repeated. Tosupport that allegation, the Secretary introduced evidence that Spancrete had previouslybeen cited for violating section 1926.500(d)(1) and that, after a hearing, that citationhad been affirmed.A violation is repeated if, at the time it occurred, there wasa Commission final order that the employer had committed a substantially similarviolation; and a prima facie showing of similarity is made if it was a violation of thesame standard. Stone Container Corp., 14 BNA OSHC 1757, 1762, 1990 CCH OSHD ? 29,064, p.38,819 (No.88-310, 1990). Because there is evidence that Spancrete has previously beenfound in violation of the standard cited here, we find that this violation was repeated.The Secretary proposed a penalty of $800. In assessing apenalty for a violation of the Act, the Commission must give due consideration to the sizeof the employer’s business, the gravity of the violation, the company’s good faith, andits history of previous violations. Section 17(j) of the Act, 29 U.S.C. ? 666(j). Havingconsidered the evidence in the record relating to those factors, we consider the penaltyof $800 proposed by the Secretary to be appropriate.We find that Spancrete committed a serious repeated violationof 29 C.F.R. ? 1926.500(d)(1) and assess a penalty of $800. Because Spancrete has notaddressed the degree of the violation and the penalty, however, our order is conditional.We will afford Spancrete twenty days from the date of this order to file with theExecutive Secretary of the Commission a notice that it wishes to present arguments thatthe Commission has erroneously found that the violation is serious and repeated or thatthe penalty is inappropriate for the offense.Accordingly, we issue a conditional order reversing thedecision of the administrative law judge, affirming a serious, repeated violation of 29C.F.R. ? 1926.500(d)(1), and assessing a penalty of $800. Should Spancrete notify theCommission within twenty days of the date of this order that it intends to file argumentson the matters not addressed by the judge, those arguments must be filed within thirtydays of the date of this decision.Edwin G. Foulke, Jr. WisemanChairmanDated: April, 30, 1991Donald G. WisemanCommissionerSECRETARY OF LABOR, Complainant v. SPANCRETE NORTHEAST, INC., RespondentOSHRC Docket No. 86-0521APPEARANCES: For the ComplainantPatricia M. Rodenhausen, Regional Solicitor U. 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 theOccupational Safety and Health Act of 1970 (the Act). As a result of an inspection by theOccupational Safety and Health Administration (OSHA) of the Respondent’s premises on orabout March 27, 1986, Citation #1 was issued on or about April 7, 1986, charging that theRespondent 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 ofContest to the Citation and the penalty proposed therefor.The pertinent sections of the Act and the standard are appended to this decision underappropriate titles.THE ISSUES1. Were the Respondent’s employees exposed to a hazardouscondition? 2. Was the proposed correction more dangerous than the allegedhazard?The Respondent is a sub-contractor installing precast planksfor the mezzanine floor of a one-story building. Except for the west side, the jobsite wasan open-sided floor with a perimeter of about 350-375 feet. As the planks are installed atthe mezzanine level, they become a floor on which the Respondent’s employees work, placingthe planks into sections and filling grout in the seams between the planks. The lastplanks to be brought up from the ground become, in turn, the outer edge of the floor,which is constantly being extended out from the western side toward the edge of the otherthree open sides.There are 2 phases to the operation: the first, laying theplanks to form a floor; and the second, grouting. The grout, a mortar-like substance, ispoured into the seams and then spread by employees wielding a pushbroom-like utensilcalled a \”squeegee.\” In the course of \”grouting\” the planks, someemployees came within 2 feet of the edge while others came as close as inches. By the dateof the inspection, the planks 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 edgeto the ground some 13-feet 8 inches below…. (Tr. 12)There is not much doubt that the condition was a hazardous one; the main question was how,if at all, it could be abated without exposing the Respondent’s employees to greaterdanger.What used to be the affirmative defense of impossibility hasbeen changed to infeasibility by the Review Commission’s ruling in Secretary of Labor v.Dun-Par Engineered Form Co., 12 OSHC 1949. Under it, once the employer has proveninfeasibility of compliance with specific means of abatement imposed by the standard, theSecretary must prove other means that are practical and realistic.Abatement ProposalsThe Complainant’s witness [Compliance Officer Sargent]testified that a railing of metal or wood or cables could be placed around the perimeterof the floor by the use of vertical posts or a portable guardrail system. The verticalposts would have to be attached to the floor’s surface by a clamp. . . . Sargent concededthat he did not know whether that solution was feasible or not …. (Tr. 41-45)As concerns the portable guardrail, Sargent said 20 to 40 wouldbe needed, and it was his opinion that the floor could withstand the weight of the steelbase of the portable guardrail, but conceded that he had not performed any tests todetermine whether the floor could withstand its weight . . . . (Tr. 45, 57) He alsoestimated it would take 2 to 3 men an hour to install the steel based posts and rails, butconceded he had never done such work. . . . (Tr. 60, 61)As concerns wire cables, he said he had performed no tests todetermine how 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, each separated by 8feet…. (Tr. 47, 48, 50) While placing the posts, the workers would be near the edge ofthe floor and be exposed to the danger of falling…. (Tr. 50, 51) Putting up posts wouldtake 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 perimeter rails and posts would increase thetime of – employees actually being near the edge ….(Tr. 62) But he also said that theemployee would be taking himself into the zone of danger less than in the groutingoperation …. (Tr. 78)Engineer Buchman, the Respondent’s vice-president, testifiedthat constructing a rail around the perimeter before the planks were set is not practicalor reasonable because there is nothing to attach it to ….(Tr. 88) After the planks havebeen set and grouting begun, the hazard is increased if the employees have to go to theedge an additional 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 the edge and fasten a 26-poundsteel bracket to the outside edge of the wall …. (Tr. 94)Buchman’s testimony tended to establish that it would take 8minutes to set a wooden post to the horizontal floor; and 90 posts would take 12 hours…. (Tr. 92) To remove the posts then would take 4 minutes a post or 6 additional hours…. (Tr. 92) He said such an abatement proposal is impractical, unreasonable, infeasible,and a greater hazard to employees …. (Tr. 95) He also testified that equipment weighingover 2,000 pounds would have to be brought to the jobsite; and he estimated that the costof rental, loading, and unloading of such equipment would come to $16,500-about 22% of thetotal contract price. In his opinion, it is not practical or reasonable to installstandard rail guards or the heavy metal-based ones…. (Tr. 102)The testimony of Schrader, the Respondent’s erection foreman, tended to establish that thegrouting operation took about 5 1\/2 hours, of which about 8-10% was spent by 3 men doingthe floor’s perimeter. In his opinion, there was no hazard because the men knew of thedanger, were experienced, and were extra careful …. (Tr. 116, 117) He testified that,before the grouting, there is no place to put a railing; and after the floor has beencompleted, the clamping method cannot be used because there is no open edge ….(Tr. 119)He said there is a hazard in installing the posts and more equipment– electric cords,drills and a hammer–must be handled by employees than just the squeegee. In his opinion,installing the posts is not a practical or reasonable solution, and it exposes employeesto a greater hazard of falling off the edge…. (Tr. 120) In addition, a similar operationwould have to be undertaken to remove them…. (Tr. 121).As concerns the portable rail guard, Schrader said it is heavyand it is not practical to lift it and move it around the floor…. (Tr. 125). The HazardThe Respondent’s employees will be exposed to a hazardregardless of whether the present method of operation is continued or is replaced by oneof the methods described by the Compliance Officer. The only difference [if any] is one ofdegree. If employees exercise ordinary care in spreading grout with squeegees, it is notnecessary for them to turn 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’s handle]. It is also notnecessary for an employee to go near the zone of danger other than once [to spread thegrout]; and then he need have only one implement in his hands, the squeegee. On the otherhand, under the method of rails supported by vertical posts affixed to the floor, someemployees would have to be in the zone of danger twice [once setting the barrier up andonce taking it down] while carrying or working with equipment such as an electric cord,drill, hammer, etc., used in erecting the barrier. Moreover, if the employee used one typeof clasp-a 26-pound base-the employee would have to lean over the floor’s edge to attachit…. (Tr. 94)If the portable barrier were used, other unanswered questionsand unsolved problems arise involving how its weight is handled, how it gets moved aroundthe floor, whether the floor can sustain the weight, how the equipment gets up to thejobsite, and so on. There simply was not sufficient evidence about the portable barrier topermit any realistic and practical evaluation of it.As the Compliance Officer testified about the clamp type ofbarrier, he just did not know whether the proposal was feasible or not…. (Tr. 43-45) Time There is still another factor to be considered: the timeemployees spent in the zone of danger under the present operation as compared to whatwould be spent under the proposed system of a barrier. The Complainant’s evidence tendedto establish that employees spent 51\/2 man-hours in the zone of danger under the presentoperation as compared to 7 man-hours that would be spent under the barrier proposal….(Tr. 52, 53) The Respondent estimated that employees would spend 18 man-hours under thebarrier proposal-12 hours installing the posts and 6 hours removing them–as compared to51\/2 man-hours under present conditions…. (Tr. 92, 116)Both estimates were, of course, only estimates. However, eventaking the figures most favorable to the Complainant’s position, I find that there is noappreciable difference in the time employees would spend in the zone of danger undereither the present operation or the proposed replacement of it by a barrier.The Greater HazardAs concerns the two grouting methods discussed [a standardrailing or none] I find that the standard railing solution creates a greater hazard toemployees than the present method of operation followed by the Respondent [the use ofsqueegees and the exercise of ordinary care by the employees].Variance Should there have been a request by the Respondent for avariance?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 theRespondent claims it was less dangerous to violate the particular standard than to complywith it, the Respondent must show it was refused a variance or it was inappropriate to askfor one.Section 655(d) of the Act says that the Secretary shall grant avariance application if the methods used by the employer \”are as safe and healthy asthose which would prevail if he complied with the standard.\” As ALJ DeBenedettopointed out in the Consolidated Rail case [78-4881], that language of the Act carries withit a \”catch-22\” or self-defeating result in that it requires a party seeking avariance to establish that it is not entitled to it. That is because, once it has beenshown that compliance with the standard is more hazardous than non-compliance, thealternative method proposed to be used for a variance only has to be \”as safe\”as the standard–which was already determined to result in a greater hazard. In thosecircumstances, it would obviously be inappropriate to seek a variance.Alternate FindingThe law on \”impossibility\” or infeasibility\” hasbeen somewhat unsettled. For that reason, it may be helpful to add an alternate finding.As such, I find that, whether or not any weight be accorded to financial considerations,the Respondent has established by a preponderance of the evidence that the Complainant’sproposed method of abatement is neither reasonable nor practical.FINDINGS OF FACTHaving heard the testimony, observed the witnesses, andexamined the exhibits, the following Findings of Fact are made:1. At all times concerned, the Respondent regularly received,handled or worked with goods which had moved across state lines.2. As concerns Citation #1, an open-sided floor more than 6feet above ground level was not guarded by a standard railing or the equivalent. 3. The conditions described in paragraph 2 above could not becorrected without exposing employees to a greater hazard.4. The conditions described in Citation #1 exposed theRespondent’s employees to sustaining serious or fatal harm because of the hazard offalling.5. One or more officers or supervisory personnel of theRespondent knew of the hazardous conditions described herein and knew that employees wereexposed to such hazard.CONCLUSIONS OF LAW1. At all times concerned, the Respondent was an employerengaged in a business affecting commerce within the meaning of the Act; and theOccupational Safety and Health Review Commission has jurisdiction over the subject matterand the parties.2. At all times concerned, the Respondent knew, or with the exercise of due diligenceshould have known, of the alleged violation.3. On the date in question, the Respondent was not incompliance with the 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).ORDER The whole record having been considered, it is ordered:Citation #1 and the penalty proposed therefor are vacated.SO ORDERED.FOSTER FURCOLOJudge, OSHRCDated: April 20, 1987 Boston, MassachusettsAPPENDIX THE ACTSection 654 [section 5(a)(2)] Employer \”…shall comply with occupational safety andhealth standards….\”Section 666 [section 17(a)] \”…employer who willfully or repeatedly violates…thisAct…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 for a seriousviolation…of this Act…shall be assessed a civil penalty of up to $1,000 for each suchviolation.\”Section 666 [section 17(k)] \”… a serious violation shall be deemed to exist…ifthere is a substantial probability that death or serious physical harm couldresult…unless the employer did not, and could not…know of the presence of theviolation.\”THE STANDARD29 C.F.R. ? 1926.500(d)(1): \”Every open-sided floor orplatform 6 feet or 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) Every open-sided floor orplatform 6 feet or more above adjacent floor or ground level shall be guarded by astandard railing, or the equivalent, as specified in paragraph (f)(1) of this section, onall open sides, except where there is entrance to a ramp, stairway, or fixed ladder. Therailing should be provided with a standard toeboard wherever, beneath the open sides,persons can pass, or there is moving machinery, or there is equipment with which fallingmaterials could create a hazard.The standard printed in the Code of Federal Regulations contains a misprint. The versionset out above is the correct version. See 44 Fed. Reg. 8577, 8637 (Feb. 9, 1979). When thestandard was codified, it was incorrectly printed to refer to paragraph\”(f)(1)(i),\” and that error has not yet been corrected.[[2\/]] Although the misprint in the Code of Federal Regulationsis misleading, the version of the standard originally printed in the Federal Registermakes it clear that any of the railings described in 1926.500(f)(1)(i) – (vi) wouldsatisfy the requirements of 1926.500(d)(1). The abatement proposed by the Secretary istherefore one of several possible methods of complying with the standard, not analternative method. This fact is significant in the context of an affirmative defense,because it means that the employer must prove the elements of that defense with respect toportable metal railings and that the Secretary does not have the burden of proving them tobe 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 no evidence of applicationfor variance); RSR Corp. v. Donovan, 747 F.2d 294, 303 (5th Cir. 1984); Donovan v.Williams Enterprises, Inc., 744 F.2d 170, 178 n.12 (D.C. Cir. 1984) (greater hazarddefense not possible because company did not apply for variance); True Drilling Co. v.Donovan, 763 F.2d 1087, 1090 (9th Cir. 1983) (rejected attack on variance requirement);Modern Drop Forge Co. v. Secretary, 683 F.2d 1105, 1116 (7th Cir. 1982) (variance element\”important\”); PBR, Inc. v. Secretary, 643 F.2d 890, 895 (1st Cir. 1981)(variance requirement necessary to ensure that employees not exposed to hazards becauseemployer incorrectly assumes its practice safer than complying); H.S. Holtz ConstructionCo. v. Marshall, 627 F.2d 149, 152 (8th Cir. 1980) (application for a variance found to beinappropriate; did not rule on appropriateness of elements of Commission’s greater hazarddefense); Voegele Co. v. OSHRC, 625 F.2d 1075, 1080-81 (3d Cir. 1980); Noblecraft Indus.v. Secretary, 614 F.2d 199, 205 (9th Cir. 1980) (upheld variance requirement); GeneralElectric Co. v. Secretary, 576 F.2d 558, 560-61. (3d Cir. 1978) (upheld variancerequirement); 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 without first seekingvariance or amendment of standard).[[4\/]] That requirement was subsequently incorporated into Rule36(b) of the 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).”