K & T Steel Corporation

Plain-English summary

K & T Steel fabricated structural steel, reinforcing bar, and tanks. OSHA cited the company because an ironworker, hydraulic press brake, and plate rolling machine lacked point-of-operation guards. K & T admitted the ironworker violation but contested the other two machines. The Commission held that the general machine-guarding standard applied to the press brake despite its exclusion from the mechanical-power-press standard, and it rejected K & T's validity and vagueness challenges. Employees' hands came close to crushing and amputation hazards at the press brake and plate roller. K & T did not prove that compliance was impossible merely by asserting that guards were inconvenient or unavailable. The Commission affirmed the serious citation and assessed the judge's reduced penalty of $150.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.212(a)(3)(ii) and 1910.217(a)(5)
• Outcome: The serious machine-guarding citation was affirmed, with a $150 penalty.
• Key point: An employer asserting impossibility of machine guarding must prove the defense; unsupported claims that suitable guards are unavailable are insufficient.

Full text (OSHRC public release)

false
false
false

EN-US
X-NONE
X-NONE

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 5769

K & T STEEL CORPORATION,

���������������������������������������������
Respondent.

February 24, 1976

�

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

The
decision of administrative Law Judge Thomas J. Donegan was rendered on January
30, 1975. K & T Steel Corporation, the respondent employer, petitioned for
review of the Judge�s decision by the full Commission. An order for review was
issued by Commissioner Moran. Although the order for review does not refer to
the petition, the issues described therein parallel closely to those raised by
the petition. The decision discusses the issues as framed and argued by the
petitioner. Essentially, the issues concern: (1) the application of a general
machine-guarding standard to a hydraulic press brake and a plate rolling
machine; (2) the validity of the standard in light of assertions of vagueness
and unlawful adoption; and (3) an asserted impossibility defense.

Respondent�s
manufacturing activities include structural and miscellaneous steel
fabrication, reinforcing bar fabrication and tank fabrication. On November 7,
1973, respondent�s workplace was inspected by an OSHA compliance officer. As a
result of this inspection two citations were issued. The first citation was not
contested. The second citation alleged a violation that grouped together three
alleged infractions of 29 CFR � 1910.212(a)(3)(ii) [1]
for failure to provide point-of-operation guarding on three separate machines:

The
three machines are: (1) an HTC hydraulic press brake; (2) a plate rolling
machine used to roll barrels and metal stock; and (3) a Mubea ironworker.
Respondent admitted the violation as to the ironworker. Respondent timely
contested the citation as to the remaining two machines and as to the proposed
penalty of $550.

Judge
Donegan held that 29 CFR � 1910.212(a)(3)(ii) was applicable to the machines
involved and that respondent violated the standard by failing to provide
point-of-operation guarding on the machines. In determining the appropriate
penalty, the Judge found that the gravity of the violation was low due to the
limited amount of time these machines were in operation each day. Considering
the good faith of the respondent and the absence of prior injuries, he assessed
a penalty of $150.

For
the reasons that follow we affirm the decision of the Judge finding respondent
in violation of the Act insofar as it is consistent with this opinion.

Respondent
argues that the exclusion of press brakes and hydraulic power presses in 29 CFR
� 1910.217(5) [2] precludes the citation of
such hydraulic press brakes under section 1910.212(a)(3)(ii). This argument was
rejected by the Commission in Irvington Moore , No. 3116 (April 7, 1975)
16 OSAHRC 608. For the reasons expressed in that decision it also fails here.

Respondent
in its brief before the Commission argues that 29 CFR � 1910.212(a)(3)(ii) was
invalidly enacted. This issue was not raised at the hearing by respondent. In
any event, we reject the contentions. Respondent relies upon the decision of
Administrative Law Judge Garl Watkins in Western Steel Mfg. Co ., No.
3528 (October 8, 1974) (Administrative Law Judge) review ordered, November 6,
1974, holding 29 CFR � 1910.212(a)(3)(ii) invalid because of the form of its
enactment. We reject the contentions for the reasons stated in our decision in Diebold ,
Inc., Nos. 6767, 7721 & 9496 (January 22, 1976).

Respondent
next argues that section 1910.212(a)(3)(ii) is unenforceably vague. [3]
We reject the argument. The performance required by the standard is clear
enough. Diebold, Inc ., supra .

It
is undisputed that neither of these machines was equipped with any
point-of-operation guards. Therefore, if the operation of these machines
exposes an employee to injury, a violation of 29 CFR � 1910.212(a)(3)(ii) has
occurred. Buckeye Industries, Inc ., No. 8454 (December 22, 1975).

That
the operation of both the press brake and the plate rolling machine exposed
employees to injury is clear. The hazards to which the employees were exposed
can best be identified by a description of the processes involved in the
operation of each of these machines.

The
press brake is used for bending sheet metal through the action of an upper die
or ram descending until it has pressed the sheet metal inserted between the two
dies by the employees into the desired form or shape. Up to 200 tons of
pressure can be exerted by this machine. The operator testified that he stands
approximately 18″ from the front of the machine and that his fingers come
within 2″ from the bottom die during the cycle. An assistant stands one
to two feet from the machine and his hands come as close as 1″ from the
bottom die. A safety witness testified that if the fingers or hands of these
employees remained in the area between the two dies as the ram descended,
severe injuries in the nature of abrasions, contusions, amputations, and simple
and compound fractures could result.

The
plate rolling machine is used to form flat metal sheets into various sized
cylindrical tanks. The rollers are eight inches in diameter and eight feet in
length. They revolve at a speed of ten revolutions per minute during the
operating cycle. The operator stands at arm�s length from the machine and feeds
the plates into the rollers. His hands come as close as 6″ to the point
of entry between the rollers. The safety expert testified that if the fingers
or hands of the operator were to get caught between the rollers, severe
crushing injuries and multiple fractures could occur.

In
view of the above-described hazards to which employees are exposed during the
operation of these machines, the failure of respondent to provide appropriate
devices to guard against such hazards is a clear violation of �
1910.212(a)(3)(ii). Sheet Metal Specialty Co. , No. 5022 (April 22, 1975)
17 OSAHRC 212.

As
a final defense respondent argues that it cannot be penalized for
non-compliance as it cannot possibly comply with this standard because there
exist no appropriate guards with which to equip these machines. [4]

The
evidence clearly shows the feasibility of equipping respondent�s press brakes
with various types of guarding devices. Respondent does not deny that its press
brake could be equipped with such guards, but asserts that because it performs
custom jobs rather than repetitive production work, such guards could not be
conveniently used. Even if proved, the fact that it is less convenient to use
point-of-operation guards during a work process does not meet the level of
proof necessary to establish an impossibility of compliance defense. Sheet
Metal Specialty Co ., No. 5022 (April 22, 1975) 17 OSAHRC 212; Garrison
& Associates , No. 4235 (April 22, 1975) 17 OSAHRC 188.

Neither
has respondent established this defense as to the plate rolling machine. It argues
that there are no existing guards that can prevent what the standard literally
prohibits, i.e., the operator from having any part of his body in the danger
zone during the operating cycle. Its evidence on this issue consisted of
statements made by the president of the company that the machine was not sold
with point-of-operation guards; that the manufacturer advised him that none
were available; and that to the best of his knowledge other similar machines in
the area were not equipped with any such guards. [5]

This
evidence also falls far short of preponderant. Something more than unsupported
assertions that no appropriate guards are available is needed. [6]

For
these reasons the Judge�s decision finding respondent in violation of 29 CFR � 1910.212(a)(3)(ii)
is affirmed.

In
assessing a penalty the Judge found that the gravity of the violation was low
due to the limited amount of time these machines were in operation each day and
taking into consideration the good faith of the respondent and the lack of
previous violations, he assessed a penalty of $150. Having examined the record
in its entirety and having given the factors specified in section 17(j) of the
Act their due consideration, we agree.

Accordingly,
the citation for a serious violation of 29 CFR � 1910.212(a)(3)(ii) is affirmed
and a penalty of $150 assessed. It is so ORDERED.

�

FOR THE
COMMISSION:

�

William S.
McLaughlin

Executive
Secretary

DATED: FEB 24,
1976

�

MORAN,
Commissioner, Dissenting:

For
the reasons I stated in Secretary v. Irvington Moore, Division of U.S.
Natural Resources, Inc ., 16 OSAHRC 608, 612 (1975), and Secretary v.
Gem-Top Mfg., Inc ., 16 OSAHRC 591 (1975), the portion of the citation
pertaining to the respondent�s HTC hydraulic press brake should be vacated
because 29 C.F.R. � 1910.217 rather than 29 C.F.R. � 1910.212(a)(3)(ii)
applies to press brakes.

Likewise,
on the record in this case, a violation based upon noncompliance with � 1910.212(a)(3)(ii)
cannot be established as to the unguarded plate rolling machine. That standard
specifically requires that:

�The guarding device
shall be in conformity with any appropriate standards therefor, or, in the
absence of applicable specific standards, shall be so designed and constructed
as to prevent the operator from having any part of his body in the danger zone
during the operating cycle.�

The
majority decision misplaces the burden of proof in this regard. The standard
clearly requires the complainant to establish that there was an appropriate
standard prescribing a particular guarding device or that one could be designed
and constructed to provide the protection specified in � 1910.212(a)(3)(ii).
The complainant failed to prove either.

Furthermore,
despite what my colleagues say, the record clearly establishes that no guard
could be used which would comply with this requirement. Respondent�s president
testified that the manufacturer of the plate roller had informed him no such
guards were available. In corroboration thereof, it was established that other
companies in the area also were not using guards. Moreover, even though
complainant�s witness, a state director of safety and fire prevention,
enumerated various methods of guarding the plate roller, he also admitted that
all of those particular methods would not prevent exposure of the operator�s
body to the danger zone.

By
affirming a violation when compliance is not possible, Messrs. Barnako and
Cleary have ignored substantial Commission precedent. See Secretary v.
Underhill Construction Corp. , 15 OSAHRC 695 (1975); Secretary v.
Universal Sheet Metal Corporation , 9 OSAHRC 742, 743 (1974); Secretary
v. W. B. Meredith II, Inc ., 9 OSAHRC 245, 246 (1974); Secretary v. J. H.
Baxter and Company , 4 OSAHRC 496, 506 (1973). They have also penalized this
respondent for failing to do the impossible.

The
purpose of this law is not to penalize employers�but to reduce work accidents
and injuries. As Dr. Morton Corn, Assistant Secretary of Labor for Occupational
Safety and Health stated as he assumed that office on December 2, 1975:

�Punitive measures alone
will not bring about major changes in occupational safety and health in the
U.S.�

Deputy
Assistant Secretary of Labor Marshall L. Miller made a similar but more
positive statement on January 27, 1976 when he said:

�The best way to
reduce hazards . . . is to educate people in the hazards involved and the
necessary measures to avoid those hazards.�

�

What
are the necessary measures to avoid the hazards which my colleagues have found
in this case? They don�t say. [7]
So what has been accomplished for workplace safety as a result of these
proceedings against this respondent? Not a thing.

In
my opinion Messrs. Barnako and Cleary have, with this decision, contributed to
the problems which have plagued the implementation of this Act and which Dr.
Corn and his associates are apparently attempting to overcome. These were
rather succinctly described by former Secretary of Labor John T. Dunlop when he
said on August 7, 1975:

�The
present procedures are aimed at maximizing antagonisms.�

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 5769

K & T STEEL CORPORATION,

���������������������������������������������
Respondent.

Final Date Order: March 03, 1975

�

DECISION AND ORDER

Appearances:

For the Complainant: Malcolm R.
Trifon, Attorney Office of the Solicitor U. S. Department of Labor 450 Golden
Gate Avenue, Box 36017 10404 Federal Building San Francisco, California 94102

For the Respondent: Robert M.
Harwood, Attorney Benoit, Alexander & Harwood Twin Falls Bank & Trust
Bldg. P. O. Box 366 Twin Falls, Idaho 83301

Donegan, Judge, OSAHRC:

This
is a proceeding pursuant to section 10(c) of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as
the Act.)

The
Respondent had under its control and was operating a steel fabricating plant at
Twin Falls, Idaho on November 7, 1973, when an OSHA compliance officer
inspected this place of employment.

As
a result of this inspection, a citation number 1 for alleged non-serious
violations (6 items) and a citation number 2 for all alleged serious violation,
involving three machines, were issued to the Respondent, on November 27, 1973,
by the Complainant.

In
a notification of proposed penalty issued to the Respondent on the same date,
the Complainant proposed that no penalties be assessed for the alleged
non-serious violations (6 items) of citation number 1 and that $500 be assessed
for the serious violation alleged in citation number 2.

The
Respondent timely contested that allegation that the hydraulic press brake (2)
and the plate rolling machine (3) were in violation of the standard as charged
in citation number 2 for a serious violation. The allegation in this citation
that the Mubea Ironworker (1) violated this standard was not contested by the
Respondent.

Citation
number 2 for a serious violation alleges that the Respondent violated the Act
by failing to comply with 29 CFR 1910.212(a)(3)(ii) as follows:

�(1) A Mubea
Ironworker, Serial #KBL 16

(2) One HTC
hydraulic press brake, Serial #371462, located in the tank bay is not equipped
with point of operation guards.

(3) A plate rolling
machine, located in the tank bay, is not provided with a guard at the point of
operation area between the two feed rolls; which would prevent employees� hands
from coming in contact with these rolls.

�

THE ABOVE THREE
(3) INSTANCES OF FAILURE TO PROVIDE POINT OF OPERATION GUARDS, ANY ONE OF WHICH
COULD ALONE BE CONSIDERED SERIOUS, HAVE BEEN GROUPED FOR CITATION AND PENALTY
PURPOSES TO FROM THIS ONE ALLEGED SERIOUS VIOLATION.�

The
standard which is alleged to have been violated in citation number 2 provides
as follows:

�29 CFR
1910.212(a)(3)(ii)

� 1910.212 General
requirements for all machines.

(a) Machine
guarding.

(3) Point of
operation guarding.

(ii) The point of
operation of machines whose operation exposes an employee to injury, shall be
guarded. The guarding device shall be in conformity with any appropriate
standards therefor, or, in the absence of applicable specific standards, shall
be so designed and constructed as to prevent the operator from having any part
of his body in the danger cone during the operating cycle.�

�

A
complaint was filed on January 3, 1974. The complaint (paragraph IX) amends the
description of the violation alleged in citation number 2 for the purpose of
adding the phrase, �the operation of each of which exposed an employee to
injury.� This amendment was allowed under Commission Rule 33(a)(3).

The
Respondent answered the complaint with a letter dated January 14, 1974, signed
by the President of the Respondent Corporation, which denied that the Act had
been violated as alleged in the complaint.

The
Complainant filed a motion on April 1, 1974 to amend the complaint. An Order
denying this motion was issued by this Judge on April 16, 1974.

The
Complainant filed a request for admissions on March 21, 1974. In a letter [8]
, dated April 17, 1974, the Respondent expressed agreement with all the
requests for admissions except item no. 5. This item states that the penalty
proposed for the non-contested violation involving the Mubea Ironworker was not
contested. At the hearing the Complainant agreed that item no. 5 of the request
for admissions was in error and that the proposed penalty concerning the Mubea
Ironworker non-contested violation was in issue (T. 5�7).

No
affected employees or representatives of affected employees requested leave to
intervene or have elected to participate in this proceeding as a party.

The
Complainant and the Respondent have submitted briefs in this case.

ISSUES
AND FINDINGS

Before
evidence was introduced at the hearing, the Respondent moved to dismiss the case,
contending that the Act and regulations at issue violate the Fifth Amendment of
the Constitution (T. 8�9, 246).

The
Judge ruled on this motion, holding that he did not have jurisdiction to decide
the issue of the constitutionality of the Act [9]
(T. 10�12, 247).

The
Respondent also made motions at the hearing to dismiss on the grounds of the
vagueness of the standard [29 CFR 1910.212(a)(3)(ii)] allegedly violated, and
that the hydraulic press brake was an excluded machine under 29 CFR
1910.217(a)(5) [10] (T. 9�12, 247�251).
Rulings were reserved on these motions until this decision.

The
Respondent�s contention, that the standard [29 CFR 1910.212(a)(3)(ii)] is
unenforceable because of vagueness is concerned with point of operation
guarding for all machines.

The
standard prescribes that in the absence of applicable specific standards for
guarding, which is the situation in this case, the guarding device shall be so
designed and constructed as to prevent, in this case, the operators of the
hydraulic press brake and the plate rolling machine from having any parts of
their bodies in the danger zones of these machines during the operating cycle.

The
standard gives fair warning of what is required in the way of guarding by
stating that the purpose of guarding is to keep parts of the operator�s body
out of the danger zone of the machine during the operating cycle.

The
standard is not vague and unenforceable because it does not specify how the
guarding shall be accomplished. It would be arbitrary and unreasonable to hold
that the Secretary of Labor must specify the type of guarding that is required
for the many different types of machines to which this standard is applicable [11] .

It
is concluded that this standard [29 CFR 1910.212(a)(3)(ii)] is not vague to the
extent that it is unenforceable. The standard is clear as to safety factors
involved and an employer is not placed in jeopardy of non-compliance when a
good faith attempt is made to comply with the standard.

The
Respondent�s contention is rejected that the hydraulic press brake is not in
violation of the standard [29 CFR 1910.212(a)(3)(ii)] because it is an excluded
machine under the requirements for guarding mechanical power presses [29 CFR
1910.217(a)(5)]. This exclusion is clearly limited to the requirements of this section
(1910.217) and does not apply to the section (1910.212) concerned with point of
operation guarding for all machines.

It
is concluded that the standard [29 CFR 1910.212(a)(3)(ii)], which is alleged to
have been violated, is applicable to the hydraulic press brake as well as the
plate rolling machine.

It
is concluded from the substantial credible evidence that the points of
operation of the hydraulic press brake and the plate rolling machine are danger
zones wherein the operators were exposed to injury during the operating cycle
of the machines. The points of operation of these machines were not guarded in
compliance with the standard alleged to have been violated (T. 17, 18, 49, 53,
66, 67, 79, 86, 92�94, 102, 113, 117�119, 128�130, 143, 146, 152, 156, 191,
218).

The
evidence also sustains a finding that guarding can be applied to the hydraulic
press brake and the plate rolling machine to prevent the operator from having
any part of the body in the danger zones of the points of operation of these
machines during the operating cycle (T. 175�244).

Based
on the testimony, a finding is made that serious injuries in the form of
crushed hands and fingers with possible resulting amputation could occur from
the lack of guarding at the point of operation of the press brake if the hands
or fingers of the operators should be placed inadvertently between the dies of
the hydraulic press brake while the ram is descending. It is also found that
the operator of the plate rolling mill could suffer similar injuries in the
event his hands or clothing came in contact with the rollers of this machine.
The procedures followed in operating these machines and a history of no
accidents since they have been in operation at the Respondent�s plant, supports
a conclusion that the probability of an accident occurring is small (T. 17, 18,
32, 46, 97, 120, 121, 138, 191�194, 218�219, 254, 256).

The
proposed penalty of $500 for the serious violation involving the three machines:

1.
Mubea Ironworker 2. hydraulic press brake; 3. plate rolling machine) has been
contested and consequently it is necessary to determine whether this penalty is
appropriate.

The
three machines are not operated on an assembly line type of production. The
plant is primarily engaged in the type of work which is performed in a job shop
(T. 36, 252). The Respondent agreed with paragraphs six and seven of the
Complainant�s �Requests For Admissions� wherein it is stated that the hydraulic
press brake and the plate rolling machine are operated by Respondent�s
employees throughout a normal workday on a regular basis. There is no admission
in this regard concerning the Mubea Ironworker.

The
employee who has worked with the Mubea Ironworker, testified that a number of
employees have access to and use this machine. He did not know if the machine
is used every day (T. 168).

The
testimony reflects that the hydraulic press brake was operated about an hour a
day (T. 79, 81, 85). The regular operator is assisted by a helper (T. 102,
104).

The
operator of the plate rolling machine operates this machine about an hour on an
average day although sometimes it is operated two hours a day and very rarely
is it operated three hours in a day (T. 132).

After
weighing the available evidence concerning the factors which are relevant to a
determination of the extent of employee exposure to the unguarded points of
operation of these three machines, it is concluded that the gravity of the
serious violation charged in the citation is not of a high order.

At
the time of the inspection, the Respondent had 63 employees of which 40 to 50
work in the shop. The Company is in the middle class as to size when compared
with steel fabricators in the Northwest (T. 15, 260).

The
evidence reflects that the Respondent is concerned with safety and merits full
credit for good faith (T. 21, 253, 255, 256, 258).

The
Respondent has no history of previous violations under the Act (T. 21).

After
considering the penalty criteria set forth in section 17(j) of the Act, [12]
it is determined that it is appropriate to assess a penalty of $150 for the
serious violation involving the three machines named in citation number 2.

CONCLUSIONS
OF LAW

1.
The Respondent, K & T Steel Corporation, was at all times material to this
proceeding an employer engaged in business affecting interstate commerce within
the meaning of section 3 of the Act.

2.
The Occupational Safety and Health Review Commission has jurisdiction over the
parties and the subject matter of this proceeding as provided in section 10 of
the Act.

3.
The Occupational Safety and Health Review Commission does not have the
jurisdictional authority to rule on the issue of the constitutionality of the
Act.

4.
The place of employment maintained by the Respondent at Twin Falls, Idaho was
inspected by an authorized employee of the Secretary of Labor on November 7,
1973 in accordance with the requirements of section 8 of the Act.

5.
The Respondent was in violation of section 5(a)(2) of the Act on November 7,
1973. This violation occurred as a result of the hydraulic press brake and the
plate rolling machine not being in compliance with 29 CFR 1910.212(a)(3)(ii), a
regulation or standard promulgated by the Secretary of Labor as provided in
section 6 of the Act.

6.
This violation involving the hydraulic press brake and the plate rolling
machine was of a serious nature within the meaning of section 17(k) of the Act.

7.
The civil penalty of $150, which is assessed herein for the serious violation
of citation number 2, is assessed pursuant to and as a result of giving due
consideration to the criteria set forth in section 17(j) of the Act.

ORDER

����������� Based on the foregoing findings of
fact and conclusions of law, it is ORDERED:

1.
That citation number 2 for a serious violation be, and is hereby affirmed as it
applies to the hydraulic press brake and the plate rolling machine.

2.
That the proposed penalty of $550 for the serious violation alleged in citation
number 2 for a serious violation be, and is hereby vacated.

����������� 3. That a civil penalty of $150 be,
and is hereby assessed for the serious violation set forth in citation number
2.

�

THOMAS J.
DONEGAN

Judge, OSAHRC

Dated: January
30, 1975

Seattle,
Washington

[1] That standard reads:

� 1910.212 General requirements for
all machines.

(a) Machine guarding.

(3) Point of
operation guarding.

(ii) The point of
operation of machines whose operation exposes an employee to injury, shall be
guarded. The guarding device shall be in conformity with any appropriate
standards therefor, or, in the absence of applicable specific standards, shall
be so designed and constructed as to prevent the operator from having any part
of his body in the danger zone during the operating cycle.

[2] That standard reads:

� 1910.217
Mechanical Power Presses.

(a) General
Requirements.

(5) Excluded
Machines. Press brakes, hydraulic and pneumatic power presses, bulldozers, hot
bending and hot metal presses, forging presses and hammers, riveting machines
and similar types of fastener applicators are excluded from the requirements of
this section.

[3]
For my own part, I adhere to the view stated in my dissenting opinion in Sante
Fe Trail Transport. Co. , No. 331 (December 18, 1973), rev�d 505 F.2d
869 (10th Cir. 1974), that the Commission has no power to declare a standard
unenforceable by reason of vagueness.

[4]
An assertion that compliance with a standard is impossible due to the nature of
the work being done is, at most, an affirmative defense. Brennan v.
O.S.H.R.C. & Underhill Constr. Co. , 513 F.2d 1032 (2d Cir. 1975). An
employer may of course seek a variance from a standard so long as a safety
practice is adopted that provides equal protection for employees.

[5]
The respondent also points to the failure of the Secretary�s safety witness to
identify any existing guarding devices which prevent the operator from having
any part of his body in the danger zone during the operating cycle.

Inasmuch as impossibility of compliance
is at most, an affirmative defense, the Secretary does not have the burden of
showing that the respondent is able to comply with a cited standard. Buckeye
Industries, Inc ., No. 8454 (December 22, 1975).

In any event, the Secretary�s
witness did demonstrate various tripbar or release mechanisms with which the
plate rolling machine could be equipped whereby the operator could cause the
rollers to separate if any part of his body (or clothing) became lodged between
the two rollers.

As respondent�s machine is not
equipped with such a device we need not address the question of whether such
release devices are sufficient guarding devices under section
1910.212(a)(3)(ii).

[6]
It is my separate view that, even if the evidence conclusively established the
present unavailability of such guards, which it clearly does not, the Secretary
could make allowance for this in prescribing abatement requirements permitting
the development of new safety devices. As the Second Circuit stated in Society
of Plastics Industry, Inc. v. O.S.H.A ., 509 F.2d 1301, (2d Cir. 1975), cert.
denied 95 S.Ct. 1998 (1975):

In the area of
safety, we wish to emphasize, the Secretary is not restricted by the status
quo. He may raise standards which require improvements in existing technologies
or which require the development of new technology, and he is not limited to
issuing standards based solely on devices already fully developed.

509 F.2d at 1309
(citations omitted).

[7]
The majority asserts that the machines here involved clearly �exposed employees
to injury.� They find a violation but do not point to anything which respondent
can feasibly do to reduce that exposure. The record, however, shows that
something must be going right, for Judge Donegan specifically found in his
decision (which is attached hereto as Appendix A):

�a history of no
accidents since they have been in operation.�

[8]
The Complainant received this letter although a copy was not in the record.
Prior to the hearing, the Respondent was represented by William Koch, President
of K&T Steel Corporation.

[9]
See: Secretary v. Rea Express Co ., 2 OSAHRC 959 (RC 1973); Secretary
v. American Smelting and Refining Company , OSAHRC Docket No. 10 (August 17,
1973); American Smelting and Refining Company v. OSAHRC 501 F.2d 504
(8th Cir 1974).

[10]
29 CFR 1910.217(a)(5) provides.

Excluded machines.
Press brakes, hydraulic and pneumatic power presses, bulldozers, hot bending
and hot metal presses, forging presses and hammers, riveting machines and
similar types of fastener applicators are excluded from the requirements of
this section.

[11] See: Secretary v. Consolidated Metal Products, a
Division of Schott Industries, Inc ., OSAHRC DOCKET No. 3620 (September 18,
1974).

[12] Section 17(j) provides:

The Commission shall have authority to assess all
civil penalties provided in this section, giving due consideration to the
appropriateness of the penalty with respect to the size of the business of the
employer being charged, the gravity of the violation, the good faith of the
employer, and the history of previous violations.