Dun-Par Engineered Form Company

Plain-English summary

Dun-Par employees performed concrete formwork on unguarded upper floors of an eleven-story construction project. The Commission replaced its strict impossibility defense with an infeasibility defense that considers the practical realities of the workplace. It held that Dun-Par proved perimeter guardrails would interfere with or be destroyed during each stage of its formwork operations. It also held that OSHA had not shown how safety belts could feasibly be used by employees who had to move freely and climb ladders. The Commission initially allowed the Secretary ten days to seek a remand for evidence on alternative protection, but the order at the beginning of the release states that no remand was sought, making the citation's vacatur final.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.500(d)(1) and 1926.28(a)
• Outcome: Guardrail and safety-belt allegations vacated; vacatur became final when the Secretary did not seek remand.
• Key point: The employer bears the burden to show literal compliance is infeasible, while the Secretary bears the burden to identify and prove feasible alternative protection.

Full text (OSHRC public release)

Docket No. 79-2553

SECRETARY OF LABOR,

Complainant,

v.

DUN-PAR ENGINEERED FORM CO.,

Respondent.

OSHRC DOCKET NO. 79-2553

ORDER

The Secretary has advised the Commission that a remand has not been sought in this
case.  Accordingly, in accordance with the Commission decision issued July 30, 1986,
this case is final order as of the date of this order.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: SEP 3 1986

SECRETARY OF LABOR,

Complainant,

v.

DUN-PAR ENGINEERED FORM CO.,

Respondent.

OSHRC Docket No. 79-2553

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29
U.S.C. � 661(i), Section 12(j) of the Occupational Safety and Health Act of 1970, 29
U.S.C. � 651-678 ("the Act").  The Commission is an adjudicatory agency,
independent of the Department of Labor and the Occupational Safety and Health
Administration ("OSHA").  It was established to resolve disputes arising
out of enforcement actions brought by the Secretary of Labor under the Act and has no
regulatory functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

As a result of an employee compliant against the general contractor, an OSHA
compliance officer inspected a construction worksite in Excelsior Springs, Missouri.
  At the worksite, several different employers were working on an eleven-story
building.  Among the subcontractors was Dun-Par Engineered Form Company
("Dun-Par"), which was responsible for the concrete formwork at the site.
 When the compliance officer arrived at the worksite, the building was partially
constructed to the sixth floor.  The second, third and fourth floors of the building
had guardrails around the perimeter.  However, the fifth and sixth floors did not.
  The compliance officer observed eight Dun-Par employees tearing down formwork on
the fifth floor.  Although he did not see anyone on the sixth floor, the compliance
officer was told later that Dun-Par employees also had been working on the sixth floor.
  The Secretary cited Dun-Par under 29 C.F.R. � 1926.500(d)(1)[[1]] for failing to
provide guardrails on the fifth and sixth floors.  The Secretary later amended his
citation to allege, in the alternative, that Dun-Par should have protected its employees
against perimeter falls by providing them with safety belts under the personal protection
equipment standard at 29 C.F.R. � 1926.28(a).[[2]]

Judge Dixon affirmed the citation and rejected Dun-Par's defense that guardrails
were "impossible" to erect at the worksite.  The judge found that Dun-Par
could have installed guardrails and also found that "cables, catch platforms,
outriggers and nets, and safety belts" would have been feasible.  We reverse
Judge Dixon's findings and hold that Dun-Par established that guardrails and safety belts
were infeasible at the Excelsior Springs worksite.[[3]]

At the worksite, Dun-Par erected the wooden formwork into which concrete was
poured to form the structural framework of the building.  This formwork was erected
on each floor of the building.  The formwork for one floor could not be erected until
the concrete on the previous floor had hardened.

First, the vertical forms, or shores, were built by connecting two 4x4 wooden
beams together with the aid of an "ellis clamp."  Then, 4x6 horizontal
forms, or ledgers, were attached to the vertical shores and the vertical and horizontal
forms were raised.  Every sixteen feet along the floor, this same process of
combining and then raising vertical and horizontal forms was repeated.  The formwork
along the perimeter of the floor was angled out in such a way that the shores would be
able to support an overhead walkway that would be built around the floor above.

Additional 4x4 horizontal wooden forms, called runners, were attached to join the
shores and ledgers together.  This vertical and horizontal formwork was braced by
additional 4x4 and 4x6 wooden beams.  A horizontal gridwork form was placed down on
top of this infrastructure and plywood was nailed down onto the gridwork form.  
Concrete was then poured onto the completed formwork.  When the concrete hardened,
the wooden formwork was torn down by Dun-Par employees standing in the center of the floor
and pulling the wooden forms away from the hardened concrete.  This left a concrete
floor, which Dun-Par employees used as a base at some later time to erect vertical and
horizontal formwork for the next floor.

Dun-Par argued to the judge that it could not have erected guardrails and still
performed its work at the Excelsior Springs worksite.  Specifically, Dun-Par argued
"the functional impossibility/impracticality of perimeter guarding."  At
the hearing, Dun-Par presented the testimony of two Dun-Par construction workers and John
Dunn, the president of Dun-Par.  All three witnesses had extensive experience in
concrete formwork; all three gave several specific reasons why guardrails were not
feasible at any stage during Dun-Par's work.  The three Dun-Par witnesses testified
that before the plywood forms had been laid on top of the vertical shores and horizontal
ledgers and gridwork there was no place to erect guardrails.

The compliance officer conceded that guardrails could not be erected until the
plywood forms were put down, but contended that guardrails were feasible on the fifth and
sixth floors of the Excelsior Springs project.  However, the Dun-Par witnesses
demonstrated that guardrails would also be infeasible on the fifth and sixth floors.
  Dunn explained that the vertical shoring on one floor was used to support the floor
above and a walkway surrounding the overhead floor.  Here, the vertical shoring of
the fifth, or "base" floor was used to support the sixth floor and walkway
surrounding the sixth floor.  Thus, the vertical shoring on the fifth floor had to be
angled out so that it supported the overhead walkway which was beyond the perimeter of the
building.  The way in which the vertical shoring was angled out, according to Dunn,
made it impossible to erect a guardrail on the fifth floor while the formwork was being
erected on top of the concrete base floor.  Any guardrail would interfere with this
essential vertical shoring and would have had to be removed when Dun-Par erected the
vertical perimeter shores.  One Dun-Par employee explained that any cable or
guardrail around the perimeter of the building would actually force Dun-Par workers to
perform some of their duties outside the perimeter guarding.

Dun-Par's witnesses also testified that guardrails were not feasible on the sixth
floor during the time between the laying of the plywood cover and the erection of the
vertical shores to support the next level.  First, the Dun-Par witnesses testified
that when the plywood was placed down and guardrails could be erected, the guardrails
would perform no safety function for the Dun-Par employees.  After the plywood forms
were in place, Dun-Par's work on the floor was completed and the other building trades
would come on to the floor and perform their duties.  As Dunn explained, after
plywood forms were in place, Dun-Par employees were "down the building and other
trades are moving in."

Dunn stated that a single Dun-Par employee oversaw the pouring of concrete over
the wooden forms to check for any unusual weaknesses in the formwork.  However, this
employee, according to Dunn, would not go to the perimeter of the building unless there
was a particular problem.

Finally, the Dun-Par witnesses explained that the guardrails would be destroyed
when Dun-Par employees returned to remove the shoring after the concrete was poured.
  The wooden shores were wedged into place and were removed by pulling them out.
  According to Dun-Par witnesses, any guardrails in place would be destroyed when the
shoring was ripped down.  Therefore, guardrails would not be feasible during the
tearing down of the formwork.

Dun-Par also argued that "a safety belt/life line system of protection is
neither feasible nor of likely utility."  The Secretary presented only the
general opinion of the compliance officer--who had no experience in concrete
formwork--that such protection could have been provided.  On the other hand, Dun-Par
presented specific testimony as to why safety belts would not have been feasible.  
When asked whether Dun-Par employees needed to move around freely in the work area in
order to do their job.  He added, "We're going up and down ladders.  
Safety belts would just be impossible to do the job, do the work."

II

To prove a violation of an OSHA standard, such as sections 1926.500(d)(1) or
1926.25(a), the Secretary must establish (1) the applicability of the cited standard, (2)
the existence of noncomplying conditions, (3) employee exposure or access, and (4) that
the employer knew or with the exercise of reasonable diligence could have known of the
violative condition.  See Belger Cartage Service, Inc. , 79 OSAHRC 16/B4, 7 BNA
OSHC 1233, 1235, 1979 CCH OSHD � 23,440, p. 28,373 (No. 76-1480, 1979); Harvey
Workover, Inc. , 79 OSAHRC 72/D5, 7 BNA OSHC 1687, 1688-90, 1979 CCH OSHD � 23,830,
pp. 28,908-10 (No. 76-1408, 1979).  Here, there is no dispute about either the
applicability of the standards or that there were no guardrails or safety belts being used
at the worksite.  Neither is there any question that Dun-Par employees had access to
the unguarded perimeter or that Dun-Par knew about the condition.  The question in
this case is whether, as the direction for review suggests, the erection of guardrails and
use of safety belts were feasible at the Excelsior Springs worksite.

The Commission has long held that employers may defend against a citation that
alleges a violation of an OSHA standard requiring a particular means of abatement,--in
this case, section 1926.500(d)(1), which requires the installation of guardrails--by
proving the affirmative defense of "impossibility."  E.g., Julius Nasso
Concrete Corp. , 77 OSAHRC 208/F2, 6 BNA OSHC 1171, 1977-78 CCH OSHD � 22,401 (No.
16012, 1977).  This defense has two elements: (1) impossibility and (2) proof
of alternative protection .  Under this defense the employer must first
demonstrate that compliance with the standard's literal requirements was not possible or
would preclude performance of the employer's work.  E.g., Bratton Furniture
Manufacturing Co. , 83 OSAHRC 30/A2, 11 BNA OSHC 1433, 1435, 1983-84 CCH OSHD �
26,538, p. 33,858 (No. 81-799, 1983).  Secondly, the employer must show that he took
alternative means of protection not specified in the standard, or that alternative means
of protection were unavailable.  Id .  See also American Luggage Works,
Inc. , 82 OSAHRC 30/C7, 10 BNA OSHC 1678, 1683, 1982 CCH OSHD � 26,072, p. 32,797 (No.
77-893, 1982).

The Secretary argues that Judge Dixon was correct in finding that Dun-Par failed
to establish the elements of the impossibility defense.  According to the Secretary,
Dun-Par failed to show that the erection of guardrails or the use of safety belts would
have prevented Dun-Par from doing its work.  The Secretary also argues that Dun-Par
failed to show that other ways of protecting the workers were not available.

On review, Dun-Par does not argue that the erection of guardrails was absolutely
impossible but that the guardrails "were not a feasible means to protect Dun-Par
employees due to the circumstances and nature of Dun-Par's work."  Dun-Par
further argues that the guardrails were not "practical" and that their use at
the workplace was "contrary to common sense and the purpose of the Act."  
Similarly, Dun-Par argues that the record establishes that safety belts were "neither
feasible nor of likely utility."  Dun-Par argues that the Commission should
follow the rationale of the United States Court of Appeals for the Eighth Circuit in H.S.
Holtze Construction Co. v. OSHRC , 627 F.2d 149 (8th Cir.1980), and adopt a more
practical and reasonable approach to the defense of "impossibility."

Dun-Par's arguments on review are not couched in the traditional terms of the
impossibility defense.  Dun-Par does not claim that the erection of guardrails or the
use of safety belts was "impossible" but only that these means of protection did
not make sense given the manner in which Dun-Par performed its work.  Neither does
Dun-Par make any claim that it took available, alternative measures, as required under the
second element of the "impossibility" defense.  Essentially, Dun-Par
questions the "impossibility" defense as it has been developed by the
Commission.

A.

Heretofore, the initial requirement of the impossibility defense was that the
employer was required to show that it is "impossible" to comply with a standard.
  Although Commission decisions have consistently spoken of
"impossibility," several courts of appeals have instead inquired whether
compliance was "infeasible."[[4]]  It is to this distinction between
"impossibility" and "infeasibility" that we now turn.

Section 5(a)(2) of the Act, 29 U.S.C. � 654(a)(2), states simply that employers
"shall comply with occupational safety and health standards promulgated under this
Act."  However, it soon became apparent to the Commission that this provision of
the Act could not reasonably be applied in a literal manner and that some sort of
impossibility or infeasibility defense was necessary. 

The Commission's use of the word "impossibility" began in W.C. Sivers ,
74 OSAHRC 30/B5, 1 BNA OSHC 1074, 1973-74 CCH OSHD � 17,792 (No. 239, 1972).  
There, the employer had suggested that compliance with a standard would have prevented
work from being performed.  The Commission remanded to give the employer an
opportunity to prove this but reserved decision on whether the allegation was a defense.
  The Commission stated simply that:

It may well be that [the employer], by this allegation, intended to raise (albeit
inartfully) impossibility of compliance as an affirmative defense.  We would give
[the employer] the opportunity to present the defense without venturing any opinion at
this time concerning the question of the completeness of the defense, if established under
the Act.

1 BNA OSHC at 1076, 1973-74 CCH OSHD at p. 22,165.

In the first Commission decision that actually upheld the defense, the Commission
vacated a citation for a violation of standards requiring guardrails on the ground that
the work would have been "impossible" with the railings in place.  W.B.
Meredith, II, Inc. , 74 OSAHRC 39/A2, 1 BNA OSHC 1782, 1973-74 CCH OSHD � 18,003 (No.
810, 1974); see also Garrison & Associates, Inc. , 75 OSAHRC 51/D5, 3 BNA OSHC
1110, 1974-75 CCH OSHD � 19,550 (No. 4235, 1975).  The Commission did not, however,
make clear why a showing of "impossibility" was necessary, as opposed to a
showing of "infeasibility."  Possibly early members of the Commission saw
no sharp distinction between the two, because thereafter, in K & T Steel Corp. ,
76 OSAHRC 31/A2, 3 BNA OSHC 2026, 2028, 1975-76 CCH OSHD � 20,445, p. 24,415 (No. 5769,
1976), the Commission held that the "impossibility" defense had not been proven
because the evidence showed the "feasibility" of using a guarding method
required by a standard.  See also Central Steel & Tank Co. , 75 OSAHRC
9/A2, 3 BNA OSHC 1711, 1712, 1975-76 CCH OSHD � 20,172, p. 24,017 (No. 2346, 1975)
(employer failed to establish that no "practical" means of guarding exists;
"impossibility" defense not proved); and Universal Sheet Metal Corp. , 74
OSAHRC 44/D7, 2 BNA OSHC 1061, 1973-74 CCH OSHD � 18,163 (No. 657, 1974) (compliance with
standard would render performance of work "very difficult if not
impossible.")  When finally in C. Kaufman, Inc. , 78 OSAHRC 3/C1, 6 BNA
OSHC 1295, 1300, 1977-78 CCH OSHD � 22,481, p. 27,101 (No. 14249, 1978), and Hughes
Brothers, Inc. , 78 OSAHRC 65/A2, 6 BNA OSHC 1830,1835, 1978 CCH OSHD � 22,909, p.
27,719 (No. 1253, 1978), the Commission drew a sharp distinction between the terms
"impossibility" and "infeasibility," it did not explain why it did so.
  See also StanBest, Inc. , 83 OSAHRC 10/D6, 11 BNA OSHC 1222, 1231, 1983-84
CCH OSHD � 26,455, p. 33,624 (No. 76-4335, 1983).

We think that the early members of the Commission correctly appreciated that
literal compliance with the standards was not always possible.  However, we do not
believe the so-called impossibility defense, as presently framed, adequately reflects the
obligations of employers under the Act.  The standards adopted in the earliest days
of the Act were national consensus standards and established federal standards, which
Congress had required the Secretary to adopt quickly without additional rulemaking.  
See sections 3(9), 3(10) and 6(a) of Act, 29 U.S.C. � 652(9), 652(10) and 652(a). 
The national consensus standards, which were the source of the "overwhelming majority
of safety standards,"[[5]] were often out-of-date by the time OSHA adopted
them.[[6]]  They had been drafted by committees of industry representatives under the
auspices of private standard-setting organizations, particularly the American National
Standards Institute (ANSI) and the National Fire Protection Association (NFPA), and were
not intended to be used as mandatory, inflexible legal requirements.  A managing
director of ANSI, for example, commented that "[i]n the days before OSHA, when
standards were developed as advisories, not laws, the committees sometimes tended to
incorporate some lofty goals, knowing they would never be held accountable if [employers]
didn't achieve them."[[7]]  As one observer noted:

...[P]rivate standards were often written as goals to be attained rather than as
rules intended to be enforced.  ...Many combine arbitrary levels, values, or other
requirements with an either explicit or implicit understanding that these requirements are
not to be applied by rote to every situation which they might literally cover.[[8]]

Both OSHA officials and early members of the Commission recognized that the
voluntary consensus standards were not designed to be rigidly enforced.[[9]]  This
view was reaffirmed by the Third Circuit in A.F.L.-C.I.O. v. Brennan , 530 F.3d 109,
112 (3d Cir. 1975).  That case involved a machine guarding standard that was derived
from an ANSI standard.  The court observed that "[w]hen it promulgated the no
hands in dies standard, the [ANSI] B 11 standards committee did not anticipate that its
code would...become a mandatory federal standard rather than a precatory guideline for the
affected industries."

This lack of expectation of rigid enforcement also lay behind the established
federal standards adopted en masse in 1971.  Many were taken from standards adopted
under the Walsh-Healey Public Contracts Act, 41 U.S.C. � 35-45.  Yet, the
Walsh-Healey standards were only interpretive rules, designed to establish a benchmark for
employee safety and health but not to finally determine the government contractor's duty.
  Thus, Labor Department regulations permitted the contractor to challenge  the
"legality, fairness or propriety" of the Labor Department's reliance on a
standard to show a violation of the statutory prohibition against "unsanitary or
hazardous or dangerous working conditions."  41 C.F.R. � 50-204.1.  See
generally American Can Co. , 82 OSAHRC 5/A2, 10 BNA OSHC 1305, 1311, 1982 CCH OSHD �
25,899, p. 32,414 (No. 76-5162, 1982).

The same is true of the Construction Safety Act standards in 29 C.F.R. Part 1926,
which were originally adopted under and interpreted the Contract Work Hours and Safety
Standards Act, 40 U.S.C. � 327 et seq . (commonly known as the "Construction
Safety Act").  According to 29 C.F.R.�1926.10 (first designated 29
C.F.R.�1518.10), the Construction Safety Act standards were specifically intended to
interpret and apply section 107 of the Construction Safety Act, 30 U.S.C.�333, which
prohibits "unsanitary, hazardous, or dangerous" working conditions in government
construction work.  However, the procedures for enforcement were to be those under
the Service Contract Act, 41 U.S.C.�351 et seq . 29 C.F.R.�1926.4 (first
designated 29 C.F.R. � 1518.4), adopted at 36 Fed. Reg. 7340, 7341, (1971). 
The version of the pertinent Service Contract Act regulation that was ineffect when the
Construction Safety Act standards were adopted prescribed a system like that in the
Walsh-Healey Act: Labor Department investigators and other officers were instructed to
"assume that failure to comply with...the safety and health measures provided in [the
Service Contract Act standards] results in working conditions which are 'unsanitary or
hazardous or dangerous...'"  In "formal enforcement proceedings,"
however, contractors would "be permitted to demonstrate by reliable, substantial,
probative evidence, that their failure to comply with [the Service Contract Act standards]
did not result in working conditions unsanitary or hazardous or dangerous...." 
Section 1516.1(b) and (c), adopted at 32 Fed. Reg. 21036-21037 (1967). 
Thus, the Construction Safety Act standards were originally intended to be only
interpretive regulations; failure to follow a standard was not a per se
violation.

Moreover, many, if not most, of the interpretive standards adopted under the
Walsh-Healey Act and the Construction Safety Act were themselves derived from private,
voluntary standards, which, as we have noted, were not drafted as inflexible, legal
commands.[[10]]

The Commission's in interpreting and applying the OSHA standards adopted under
section 6(a) has been consistent with the above account of their history--that they could
not possibly have been written with literal application in mind; rather the standards were
designed not for all cases but for the normal case.[[11]]  As the Eighth Circuit
pointed out in H.S. Holtze Construction Co. v. Marshall , 627 F.2d at 151-152,
"some modicum of reasonableness and common sense is implied."[[12]]

Strict application of an "impossibility" defense does not accommodate
considerations of reasonableness or common sense, or reflect the strong sense of the
practical implicit in the standards adopted under section 6(a).  Feasibility, on the
other hand, is consistent with the requirements of the Act and with earlier Commission
decisions.  This view is buttressed by the legislative history of the Act and by the
language of some standards.  Thus, section 6(b)(5), by which means Congress intended
the Secretary to adopt the health standards that would replace OSHA "interim"
standards, speaks expressly of "feasibility."  One court has inferred from
section 6(b)(5) that all OSHA standards are implicitly constrained by the feasibility
requirement.  See A.F.L.-C.I.O. v. Brennan , 530 F.2d 109, 121 (3d Cir. 1975); Atlantic
& Gulf Stevedores, Inc. v. OSHRC , 534 F.2d 541, 555 (3d Cir. 1976).  The
Secretary's own standards--particularly the new health standards--consistently use the
word "feasible" to qualify the employer's obligation.[[13]]  The general
duty imposed by section 5(a)(1) of the Act, 29 U.S.C.�654(a)(1), which applies when no
standard is applicable, is also implicitly qualified by the concept of
"feasibility."  See National Realty & Construction Co. v. OSHRC ,
489 F.2d 1257 (D.C. Cir. 1973).  Finally, when a standard is so unclear that it would
otherwise be held unconstitutionally vague, the Commission and several courts of appeals
have held that the standard applies only to the extent the duty imposed on the employer is
"feasible."  See Granite City Terminals Corp. , 86 OSAHRC___, 12 BNA
OSHC 1741, 1746 & n.10., 1986 CCH OSHD � 27,547, pp. 35,774-75 & n.10 (No.
83-882-S, 1986); Frank Briscoe Co., Inc. , 76 OSAHRC 129/A2, 4 BNA OSHC 1729,
1976-77 CCH OSHD � 21,162 (No. 7792, 1976); L.R. Willson & Sons, Inc. v. OSHRC ,
698 F.2d 507 (D.C. Cir. 1983); Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105
(7th Cir. 1982); Voegle Co. v. OSHRC , 625 F.2d 1075 (3rd Cir. 1980); Ray Evers
Welding v. OSHRC, 625 F.2d 726 (6th Cir. 1980); Bristol Steel & Iron Works, Inc. v.
OSHRC , 601 F.2d 717 (4th Cir. 1979); General Electric Co. v. OSHRC , 540 F.2d 67
(2d Cir. 1976).

We agree with several courts of appeals that "[r]ather than 'impossibility,'
the question is more properly thought of in terms of [in]feasibility.  A.E.
Burgess Leather Co. v. OSHRC , 576 F.2d 948, 950 & n.1 (1st Cir. 1978).[[14]]
  We therefore modify the defense by changing the inquiry in the first element from
"impossibility" to "infeasibility."  We overrule Commission
precedent that requires employers to prove that compliance with a standard is
"impossible" rather than "infeasible."

B.

Under the second element of the impossibility defense, an employer who established
the impossibility of the cited standard was also required to persuade the trier of fact by
a preponderance of the evidence that alternative protective measures had been taken or
were unavailable.  M.J. Lee Construction Co. , 79 OSAHRC 12/A2, 7 BNA OSHC
1140, 1146, 1979 CCH OSHD � 23,330, p. 28,229 (No. 15094, 1979).  Although section
5(a)(2) of the Act does not expressly impose a requirement to use available alternative
protective measures, the Commission has reasoned that an employer should do something to
protect its employees if literal compliance with a standard is impossible.  See id .

However, none of the Commission cases that discussed the impossibility defense and
that allocated the burden of percussion to the employer to establish that compliance with
a standard was "impossible," ever analyzed why the employer should also have the
burden of persuasion to establish that alternative means of protection were
"unavailable" or why "unavailability" would be the test for
determining the employer's duty.  Similarly, although the courts of appeals upheld
the Commission's allocation of the burden of persuasion to the employer to establish that
compliance with the cited standard was "infeasible" or "impossible," Cleveland
Consolidated v. OSHRC , 649 F.2d 1160 (5th Cir. 1981); Southern Colorado Prestress
Co. v. OSHRC , 586 F.2d 1342 (10th Cir. 1978); Diebold Inc. v. Marshall , 585
F.2d 1327 (6th Cir. 1978); A.E. Burgess Leather Co. v. OSHRC , 576 F.2d 948 (1st
Cir. 1978); Ace Sheeting & Repair Co. v. OSHRC , 555 F.2d 439 (5th Cir. 1977),
none of the courts discussed the allocation of the burden of persuasion on the alternative
measures element.

The allocation to the employer of the burden of persuasion on the alternative
measures issue posed almost insoluble litigating problems for the employer: He would have
to prove the negative of a proposition and he could never know when he had proven the
unavailability of all the alternative measures that could possibly exist.  To prepare
for a hearing in which the impossibility of abatement would be in issue, the employer
would have to conceive of all possible alternative measures, including those that might be
suggested by the Secretary or his witnesses, and prepare evidence to establish that all
those measures were "unavailable."  Still, the employer might not have
anticipated no matter how diligent or imaginative his preparation for the hearing.

We conclude that the burden of proposing alternative means of protection and
persuading the trier of fact that the employer failed to use them more fairly rests with
the Secretary.

It should be noted that there are "no hard-and-fast standards governing the
allocation of the burden of proof in every situation."  Keyes v. School
District No. 1, Denver, Colo. , 413 U.S. 189, 209 (1973).  Where the burden of
persuasion falls will ultimately rest "upon broad reasons of experience and
fairness."  J. Wigmore, Evidence � 2486 at 292 (J. Chadbourn ed., 1981).

The courts have considered a host of factors when deciding whether to place the
burden of persuasion with one party or another.[[15]]  See McCormick , Laws
of Evidence �337 at 788-789 (2d ed. 1972).  One factor that is carefully
considered is whether the facts with regard to an issue are within the knowledge of a
particular party; if they are, that party is more likely to be allocated the burden of
establishing those facts.  McCormick at 787; Advanced Micro Devices v.
C.A.B , 742 F.2d 1520 (D.C. Cir. 1984).  See also Louisiana-Pacific Corp. ,
77 OSAHRC 63/E14, 5 BNA OSHC 1572, 1977 CCH OSHD � 21,977 (No. 6277, 1977) (concurring
opinion).  One court used this reasoning in holding that the burden of persuasion
should be on the employer to establish that compliance with the cited standard was
infeasible.  The Fifth Circuit in Ace Sheeting observed:

Here, the regulation stated specific ways for the employer to eliminate the
hazard.  If the employer put up guardrails or covered the skylights, the safety
standard would have been met.  If for any reason guard rails or covers are not
feasible, the employer knows this better than anyone else, and it is reasonable to require
him to come forward with the evidence to prove it....  We therefore hold that where a
specific duty standard contains the method by which the work hazard is to be abated, the
burden of proof is on the employer to demonstrate that the remedy contained in the
regulation is infeasible under the particular circumstances.

Ace Sheeting , 555 F.2d at 441.

On the other hand, determining whether alternative feasible means of protection
could have been used in a particular situation requires safety expertise and a broad
knowledge of available abatement methods.[[16]]  An employer is not always aware of
the many alternative means of protection, particularly if the alternative means of
protection are not commonly used in the employer's industry.  Knowledge of the
various alternative means of protection is more likely to reside with the compliance
officer and other employees of the Occupational Safety and Health Administration.  
The employer does not on balance have any peculiar knowledge concerning alternative means
of protection and may indeed have less knowledge than OSHA of such matters.

The allocation to the Secretary of the burden of alleging and establishing
alternative means of protection is more consistent with holdings in closely analogous
areas of occupational safety and health law.  Where a statute or standard specifies a
means of abatement or states specific performance criteria, an employer informed of his
duty; if he raises an infeasibility defense, he will know what measures he must prove are
"infeasible."  If the standard or statute (for example, the general duty
clause) is not so specific, however, the Commission and the courts have imposed on the
Secretary the duty to specify and prove the feasibility of a means of abatement.  Compare
National Realty & Construction Co., Inc. v. OSHRC , 489 F.2d 1257, 1268 (D.C. Cir.
1973) (general duty clause), and Granite City Terminals Corp. , 86 OSAHRC, 12 BNA
OSHC 1741, 1746, 1986 CCH OSHD � 27,547, p. 35,775 (No. 83-882-S, 1986) (general
standards), with Anoplate Corp. , 86 OSAHRC, 12 BNA OSHC 1678, 1684, 1986 CCH
OSHD � 27,519, p. 35,682 (No. 80-4109, 1986) (no burden of proving feasibility where
standard is specific).  Here, once the employer has proven the infeasibility of the
specific means of abatement imposed by or described by a standard, the situation is
similar to one in which a standard or statute prescribes none at all.  Here too then,
we think it appropriate to impose on the Secretary the duty to formulate his own
theory of what the employer should have done, to allege that theory and to support it with
evidence at the hearing.

For much the same reason, the Secretary will be required to show that the
alternative means of protection is "feasible" and not merely
"available."  This accords with the reasoning of the District of Columbia
Circuit in National Realty that we mentioned above, and, as discussed in Part II.A
of this decision, with the language, structure and purpose of the Act.  The Secretary
must therefore show that the alternative means is a practical and realistic method, given
the circumstances at the workplace, to protect the employer's workers, and that the
employer did not use it.

The employer may, of course, rebut the Secretary's showing that the employer did
not use a feasible alternative method of protection.  He may, among other things,
show that he had used another alternative protective method that was reasonably designed
to mitigate the hazard.  The alternative method that was reasonably designed to
mitigate the hazard.  The alternative method actually used by the employer need not,
however, be as protective as the method proposed by the Secretary; it need only provide as
much protection as the method required by the standard or, in the case of a general
standard, by the method of protection proven to be a feasible method of complying with the
standard.

We believe the reallocation of the burden of persuasion described in this decision
will be fairer to the parties.  It will give the employer sufficient notice of what
alternative means of protection will be the subject of the litigation.  We also
believe this reallocation of the burden of persuasion will "sharpen the inquiry"
and "frame the factual question" to the essential question concerning
alternative means of protection: what could the employer have done to bring himself into
compliance with the cited standard?  See Texas District of Community Affairs v.
Burdine , 450 U.S. 248, 255 (1981).  This will result in the creation of a fuller
record concerning the important issues of the case and therefore better decision making.

In placing on the Secretary the burden to show the feasibility of specific
alternative measures, we do not hold that when employers are faced with the infeasibility
of the specific abatement method identified in applicable standards, they are free to do
nothing until told what to do by the Secretary in an adjudicatory proceeding.  Just
as employers have a duty to make reasonable efforts to comply with the general duty,
employers who find identified forms of abatement infeasible continue to have a duty to
make reasonable efforts to utilize other means of abating the hazard of which the standard
gives them notice.

The concurring opinion argues that due process problems will arise because the
employer may be held in violation of the Act for not taking measures that are not required
by standards promulgated under section 5(a)(2) or under the general duty clause of the
Act.  We believe that there are not such due process problems.

We do not agree with the concurrence that the Secretary's alternative measure must
be derived from the most specifically applicable standard or through independent proof of
a recognized hazard under section 5(a)(1).  In large measure the concurrence, by
permitting an alternative measure to be rebutted on grounds of inapplicability or
preemption, would preclude the Secretary from rebutting an infeasibility defense since
most standards are hazard specific.  The Secretary need not offer independent proof
of recognition of the hazard since the standard which he first cited gives the employer
notice of the hazard.  Nor, where a cited standard would require abatement of other
than serious hazards, would it be necessary for the Secretary to show the hazard to be
likely to cause death or serious injury.  It having been established in rulemaking
that the hazard warrants precautionary measures, the remaining issue, where the employer
has raised infeasibility of compliance as a defense, is simply the feasibility and likely
utility of means of abatement not specified in the standard.  We would reiterate,
however, that the Secretary has the same burden to show feasibility of the alternative
measure as under the general duty clause.

That the exact measures the employer should have taken are not spelled out in a
standard is no different from when an employer is cited under the general duty clause or a
performance standard.  There, an employer is not apprised of specific measures he
must take to comply with the general duty clause or a performance standard, but rather
only with the general nature of the hazard.  Just as the Commission and the courts
have found no due process problems with the lack of specific abatement methods in the
general duty clause or general performance standards,[[17]] we perceive no violation of
due process because an employer is not notified in a standard of the specific alternative
means of abatement he could take to protect his employees.  In both cases, the
employer has a duty to think for himself and determine what feasibly can be done.

III.

Applying the infeasibility defense here, the question is whether Dun-Par
established that guardrails could not have been installed or would have disrupted the work
to such a degree that there was no feasible way to use guardrails to protect Dun-Par's
employees.  Dun-Par's work in erecting the concrete formwork occurred in several
distinct stages.

In the first stage, Dun-Par employees constructed and then raised vertical and
horizontal forms every 16 feet along the floor.  Both parties agreed that at this
stage, before the plywood was laid on top of the vertical and horizontal forms, there was
simply no place to put guardrails.  Therefore, at this stage in Dun-Par's work,
guardrails were infeasible.

In the next stage of Dun-Par's work, Dun-Par's employees attached plywood to the
vertical and horizontal forms so that concrete could be poured onto the wooden forms.
  The parties disagreed whether guardrails could be used at this stage of Dun-Par's
work.  Dun-Par argued that guardrails could not be used because of the way in which
the vertical shores along the perimeter of the building had to be angled out.  
Dun-Par's witnesses explained that the vertical shores along the perimeter of the building
were used to support the overhead floor and a walkway surrounding the floor above. 
According to Dun-Par's witnesses, the way in which vertical shores were angled would leave
no room for guardrails along the perimeter.

From the evidence at the hearing, it appears that it was theoretically possible to
erect guardrails once the plywood was put down.  However, just because there was some
conceivable way to erect guardrails does not mean that guardrails were feasible.  As
the Dun-Par witnesses explained, guardrails would interfere with the vertical shoring
along the perimeter of the floor.  Any guardrail along the perimeter would have to be
removed so as not to interfere with this shoring.  Thus, guardrails could have been
placed somewhere on the floor though not along the perimeter.  Dun-Par witnesses
testified, however, that any perimeter guarding would force Dun-Par employees to work
outside the perimeter guards.  We therefore find that guardrails were infeasible at
this stage of Dun-Par's operation.  Requiring an employer constantly to erect and
tear down the guardrails or to have its employees work outside the guardrails in order to
complete their work is not a feasible method of complying with section 1926.500(d)(1).

The next stage of work was the pouring of concrete.  This began after the
vertical and horizontal forms were erected and the plywood was laid down.  By this
time, almost all of the Dun-Par employees had left the work area.  Only one Dun-Par
employee generally remained to oversee the pouring of concrete over the wooden forms and
to check for any sagging or slippage in the forms.  The employee would have no
occasion to approach the perimeter of the floor unless there was an unexpected problem
with the shores at the perimeter of the building during the concrete pour.

We are unconvinced by the Secretary's evidence of employee access at this stage.
  The Secretary must prove that it is reasonably predictable that "employees
either while in the course of their assigned duties, their personal comfort activities
while on the job, or their normal means of ingress-egress to their assigned workplaces,
will be, are or have been in a zone of danger."  Carpenter Contracting Corp. ,
84 OSAHRC___, 11 BNA OSHC 2027, 2029, 1984 CCH OSHD � 26,950, p. 34,563 (No. 81-838,
1984); Gilles & Cotting, Inc. , 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 2003, 1975-76
CCH OSHD � 20,448, p. 24,425 (No. 504, 1976).  Here, the evidence consists of no
more than speculation that an employee might go to the edge of the building if an unusual
event occurred.  Although it may have been physically possible to erect perimeter
guardrails at this stage, it would have made no practical sense for Dun-Par to have done
so.  Dun-Par undoubtedly would have had to engage other employees in the erection of
guardrails along the entire perimeter of the fifth floor, thereby inevitably exposing them
to a fall hazard.  This would have been done to protect one employee in the event of
an unusual occurrence during the concrete pour--that an employee would go to the floor
perimeter to check for sagging or slippage of the wooden forms.  We find that
guardrails would not have been a feasible way to protect that single Dun-Par employee
during the concrete pour.

After the poured concrete hardened, Dun-Par employees returned to the work area to
remove the wooden forms.  Dun-Par employees would stand away from the perimeter of
the floor and pull the wooden forms with the aid of a rope or board toward the center of
the floor.  Uncontradicted testimony by Dun-Par's witnesses established that any
guardrails would have been destroyed by this procedure.  At this point, guardrails
may have been theoretically possible but they would have served no practical purpose in
protecting the employees.  Under the circumstances, we find that guardrails at this
stage of Dun-Par's work were infeasible.

As we stated previously, feasibility must reflect the strong sense of the
practical implicit in the OSHA standards.  The question of whether a means of
protection is infeasible must be answered in light of the practical realities of the
particular workplace.  Looking at the evidence presented concerning each stage of
Dun-Par's operations, we find that Dun-Par established by a preponderance of the evidence
that there was no feasible way to comply with section 1926.500(d)(1).  Therefore, we
uphold Dun-Par's affirmative defense that guardrails were infeasible.

The Secretary alternatively charged that safety belts could be used at the
workplace.  Dun-Par maintained that because its employees needed to move about the
worksite freely, safety belts would not be feasible.  In Granite City Terminals
Corp. , 86 OSAHRC___,12 BNA OSHC 1741 & n.10, 1986 CCH OSHD � 27,547, p. 35,775
(No. 83-882-S), the Commission held that when an employer is cited under a general
standard, such as section 1926.28(a), which does not specify a particular method of
compliance, the Secretary must prove that there is a feasible means of complying with the
standard.[[18]]  The Secretary, then, has the burden of proving that safety belts
were feasible at the Excelsior Springs worksite.

After weighing the testimony presented at the hearing and considering the
practical realities of the workplace, we find that the Secretary presented no evidence
concerning how the safety belts would actually be used at the workplace beyond the
compliance officer's bare claim that safety belts were feasible.  On the other hand,
Dun-Par presented specific testimony which established that safety belts were infeasible.
  Mr. Dunn, who had much more experience with concrete formwork than the compliance
officer, explained the need for Dun-Par workers to move freely about the work area, often
moving up and down ladders.

Although we uphold Dun-Par's infeasibility defense with respect to guardrails and
find that the Secretary failed to establish the feasibility of safety belts, we do not yet
vacate the citation.  As we discussed at some length above, when an employer argues
that compliance with a cited standard is infeasible, the Secretary has the burden of
persuasion to establish that a feasible alternative means of protection existed and the
employer did not use it.  The Secretary, of course, was not on notice that he had the
burden of establishing a feasible alternative means of protection and so produced very
little evidence concerning any alternative methods.  Similarly, the Secretary was not
then on notice that he bore a burden of proving the feasibility of safety belts.  The
Secretary will therefore be granted an opportunity to adduce additional evidence on the
feasibility of safety belts and to amend his pleadings to allege that Dun-Par failed to
use feasible alternative means of protection.

Accordingly, the citation is vacated unless the Secretary, within ten days from
the issuance of this decision, moves that this case be remanded to permit him to adduce
additional evidence on the feasibility of safety belts, or to amend his pleadings to
allege that Dun-Par failed to use specific feasible alternative means of protection, and
to adduce additional evidence concerning those matters.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: JUL 30 1986

RADER, Commissioner, concurring in part and dissenting in part:

I join with the majority in holding that the so-called "impossibility"
defense is more properly cast in terms of "infeasibility."  I also agree
that when an employer raises the infeasibility defense it is the Secretary's burden to
plead and prove the alternative means of protection that the employer should have
utilized.  Since we have substantially altered respective burdens of persuasion and
going forward with the evidence where infeasibility is raised as a defense, I would add a
brief explanation of how the defense will work from a procedural standpoint.

In a typical case the Secretary will allege in his complaint that the employer has
violated a certain standard.  The employer will then raise the affirmative defense of
infeasibility in his answer.  At that point the Secretary is on notice that he may
have to prove there were alternative measures the employer could and should have used.
  Since, as we have noted, the Secretary has peculiar knowledge of the available
alternative means of protection, and especially those upon which he may offer evidence at
trial, he should amend his complaint to allege those alternative measures the employer
should have taken if, in fact, compliance with the cited standard is infeasible.  In
this manner, then, both parties will have fair notice of the claims and defenses of the
other prior to trial.

In the present case we unanimously vacate the citation under section
1926.500(d)(1) because Dun-Par demonstrated that guardrails were simply infeasible.  
Since the Secretary did not know it was his burden to allege and prove alternative means
of protection, we agree that the Secretary should be afforded the opportunity to do so
now.  It is at this point, however, that I afforded the opportunity to do so now.
  It is at this point, however, that I part company with the majority.  I differ
with the majority as to what alternative measures the Secretary may propose.  Under
the majority view, once the infeasibility defense is raised the Secretary may advocate any
feasible alternative means of protection, even if those alternative measures are contained
in inapplicable standards, or standards that are preempted under 29 C.F.R. 1910.5(c) by
more specific but uncited standards, or are not specified in any standard at all .

Our holding that the burden of pleading and proving alternative measures properly
rests on the Secretary is founded on the due process concept that the employer should have
fair notice of exactly what the Secretary alleges the employer should have done.  It
is manifestly unfair to require the employer to be prepared to prove the unavailability of
all possible alternative measures that could be suggested by the Secretary's witnesses at
trial.  It seems to me that if due process principles of notice and fairness preclude
the imposition of ad hoc alternative measures at trial, those same principles
preclude the imposition of ad hoc alternative measures-- i.e. , measures not
required by a standard or recognized under the general duty clause--at any time.  
That the majority will now require the Secretary to apprise the employer of these ad
hoc alternative measures in advance of trial does not change the fact that the
employer may still be held in violation of the Act for not taking measures that are not
called for in the standards promulgated under section 5(a)(2) or under the general duty
clause, section 5(a)(1).

It goes without saying that the Secretary is solely responsible for writing
standards and regulations to establish an employer's compliance duties.  In adopting
these standards, the Secretary is required to follow the rulemaking provisions set forth
in section 6 of the Act, 29 U.S.C. � 655.  These standards primarily define the
employer's duty under section 5(a) of the Act, for it is only when no standards apply that
any employer is required to comply with the Act's general duty clause, which requires
steps against "recognized hazards that are causing or are likely to cause death or
serious physical harm...."  Section 5(a)(1), 29 U.S.C. � 654(a)(1).  See
generally 29 C.F.R. � 1910.5(f); Brisk Waterproofing Co., 73 OSAHRC 30/E1, BNA OSHC 1263,
1973-74 CCH OSHD � 16,345 (No. 1046,1973).

Section 5(a) reflects a scheme of regulation intended to define and limit the
duties of employers.  In adopting subsection 5(a)(2), Congress rejected the
Walsh-Healey Act's general criterion of "unsanitary or hazardous or dangerous"
and made standards the primary focus of an employer's duty.  American Can Co., 83
OSAHRC 5/A2, 10 BNA OSHC 1305, 1312, 1982 CCH OSHD � 25,899, p. 32,415 (No. 76-5162,
1982).  Although Congress stated a general duty in subsection 5(a)(1), it intended
that that provision operate only when a standard did not.  Congress also made the
general duty clause more limited than the Walsh-Healey Act's general criterion, for it
limited the employer's duty to avoiding only "recognized" hazards that are
"causing or likely to cause death or serious physical harm," and to taking
feasible steps against them.[[19]]

The majority's "available alternative protective measures" doctrine is
out of step with this scheme.  The measures it requires need not be measures that are
only specified in inapplicable or pre-empted standards, or not required by the standards
at all.  This effectively expands the compliance duties imposed on employers; they
are required to comply with standards that do not apply or do not exist, or, stated
differently, with requirements that have not been imposed beforehand by the Secretary,
whose authority it is to establish or modify standards.  See , e.g. , Lisbon
Contractors , 84 OSAHRC 19/A2, 11 BNA OSHC 1971, 1974, 1984 CCH OSHD � 26,924 (No.
80-97, 1984); Schwarz-Jordan, Inc. , 84 OSAHRC___, 11 BNA OSHD 2145, 2147, 1984 CCH
OSHD � 26,989, p. 34,714 (No. 81-2738, 1984), rev'd on other grounds , 777 F.2d 195
(5th Cir. 1985).  The majority's view is based on the idea that if the employer
cannot feasibly comply with the applicable standard he must do "something."
  The problem with this is that the Secretary's view of what alternative measures the
employer should take maybe different from the employer's.  The employer therefore
cannot know whether the "something" he does is sufficient to comply with the Act
until after he has been cited and the citation litigated.

The majority's holding here still leaves a significant notice of problem for
employers.  To comport with the due process clause of the Fifth Amendment to the
Constitution, standards must provide employers with fair notice of their compliance
responsibilities.  See Dravo Corp. v. OSHRC , 613 F.2d 1227, 1232 (3d Cir.
1980), and cases cited therein; Ryder Truck Lines, Inc. v. Brennan , 497 F.2d 230,
233, (5th Cir. 1974).  To assure that employers receive such notice, standards must
not be interpreted to impose duties that their plain meaning does not support.  See
Diamond Roofing Co. v. OSHRC , 528 F.2d 645 (5th Cir. 1976).  Under the majority's
view the duties imposed ad hoc by the alternative measures doctrine may bear no
relationship to the plain words of any cited standard.  The employer thus has
no fair notice of what it is he must do to be in compliance with the Act until after
he is cited for violations.

For these reasons, I would not allow the Secretary to impose alternative measures
that are not required by any standard or are beyond the scope of the general duty clause.

The Administrative Law Judge decision in this matter is unavailable in this format. To
obtain a copy of this document, please request one from our Public Information Office by
e-mail ( [email protected] ), telephone
(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

[Footnotes]

[[1]]The standard provides:

� 1926.500 Guardrails, handrails and covers .

(d) Guarding of open-sided floors, platforms, and runways .

(1) Every opensided floor or platform 6 feet or more above adjacent floor or
ground level shall be guarded by a standard railing, or the equivalent, as specified in
paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to
a ramp, stairway, or fixed ladder.  The railing shall be provided with a standard
toeboard wherever, beneath the open sides, persons can press, or there is moving
machinery, or there is equipment with which falling materials could create a hazard.

[[2]]The standard provides:

� 1926.28 Personal protective equipment .

(a) The employer is responsible for requiring the wearing of appropriate personal
equipment in all operations where there this part indicates the need for using such
equipment to reduce the hazards to the employees.

See L.E. Myers Co. , 86 OSAHRC___, 12 BNA OSHC 1609, 1986 CCH OSHD � 27,476
(No. 82-1137, 1986), pet. for review filed , No. 86-3215 (6th Cir. March 14, 1986).

[[3]] A subsidiary question in this case is whether the Commission has
jurisdiction to address the merits of the citation items.  After Judge Dixon's
decision, Dun-Par petitioned for review on several issues.  However, former
Commissioner Barnako directed review on several issues.  However, former Commissioner
Barnako directed review on the sole question of the penalty.  The Commission found
the penalty assessment was in error and remanded the case to Judge Dixon.  Dun-Par
Engineered Form Co. , 84 OSHARC___, 11 BNA OSHC 1912, 1984 CCH OSHD � 26,883 (No.
79-2553, 1984).  On remand, the judge lowered the penalty.  Dun-Par again
petitioned for review of several issues, not directed for review the merits of this
citation because the citation items became final orders of the Commission in 1980, when
Dun-Par petitioned for review of several issues, and only the question of the penalty was
directed for review.

As the Commission noted in Hamilton Die Cast, Inc. , 86 OSAHRC___, 12 BNA
OSHC 1797, 1986 CCH OSHD � 27,576 (No. 83-308, 1986), when the Commission directs any
portion of a case for review, the entire judge's report is before the Commission, unless a
citation item is specifically severed and made a final order under rule 54(b) of the
Federal Rules of Civil Procedure.  Therefore, when former Commissioner Barnako
directed only the question of the penalty for review, the item alleging that Dun-Par
violated sections 1926.500(d)(1) and 1926.28(a) did not become the final order of the
Commission.  The issues of the feasibility of guardrails and safety belts could have
been addressed in the Commission's previous decision and are now properly before the
Commission on Dun-Par's second petition for review.

[[4]] Donovan v. Williams Enterprises , 744 F.2d 170, 178 (D.C. Cir. 1984); Faultless
Division, Bliss & Laughlin Industries Inc. v. Secretary of Labor , 674 F.2d 1177,
1189-90 (7th Cir. 1982); Southern Colorado Prestress Co. v. OSHRC , 586 F.2d 1342,
1351 (10th Cir. 1978); A.E. Burgess Leather Co. v. OSHRC , 576 F.2d 948, 951-2 (1st
Cir. 1978).  See also United Steelworkers v. Marshall , 647 F.2d 1189, 1270,
1273 (D.C. Cir. 1980); Diebold, Inc. v. Marshall , 585 F.2d 1327, 1333 (6th Cir.
1978); Ace Sheeting & Repair Co. v. OSHRC , 555 F.2d 439, 440-1 (5th Cir. 1977).

Indeed, it has been noted that, "[t]o impose on an employer the burden of
proving impossibility is to impose a burden that is unachievable," American
Luggage Works , 10 BNA OSHC at 1686, 1982 CCH OSHD at p. 32,798 (Rowland, Chairman,
dissenting).

[[5]] M. Rothstein, Occupational Safety and Health law � 125 (2d ed.
1983),

[[6]] S. Rep. No. 91-1282, 91st Cong., 2d Sess. 6 (1970), reprinted in
Committee on Labor & Public Welfare, Legislative History of the Occupational Safety
and Health Act of 1970 , 146 (Comm. Print. 1971) ("However, as a recent Department
of Labor study has shown, a large proportion of the voluntary standards are seriously
out-of-date.")

[[7]] Remarks of D. Peyton, quoted in C. Musacchio, "The Power Press
Flap: Will it Reshape Standards Setting?,"  35 Occupational Hazards 107,
108 (Oct. 1973).  See generally R. Hamilton, "The Role of Nongovernmental
Standards in the L. Rev. 1329, 1346 n. 40, 1350 & n. 52, 1449 (1978) (hereinafter
cited as "Hamilton").  See also M. Rothstein, "OSHA After Ten
Years: A Review and Some Proposed Reforms," 34 Vanderbilt L. Rev. 71, 73-74 (1981)
("Most of the difficulties with national consensus standards can be traced to the
fact that they were privately adopted, optional measures.  Many...were poorly
drafted, [or] extremely general....  Other[s]...were advisory, directory, or
precatory and were never intended to be given binding effect.").

[[8]] R. Morey, "Mandatory Occupational Safety and Health Standards--Some
Legal Problems," 38 Law & Contemp. Probs. 584, 588 (1974) (footnote omitted).
  See also Hamilton at 1393 (erratic coverage of private standards because
they "were often not written to be mandatory....").

[[9]] E.g. , A. Reis, "Three Years of OSHA: The View from Within,"
98 Monthly Labor Rev. 35-36 (1975) ("The consensus standards were not written to have
the force of law...  The problem faced by OSHA was to revise these standards in a
manner that made them suitable for enforcement...."); R. Moran, "Occupational
Safety and Health Standards as Federal Law: The Hazards of Haste," 15 Wm. & Mary
L. Rev. 777, 786 (1974) ("the voluntary nature of ANSI standards often resulted in
their idealization."); and F. Barnako, "Enforcing Job Safety: A Managerial
View," 98 Monthly Labor Rev. 36, 37 (1975):

...[T]he [ANSI and NFPA] standards were drafted as recommendations for optimal
workplace safety and health without any idea that they would or should become law.  
And they were not drafted by industry consensus but frequently by representatives of
selected industries for those industries. ...All of industry was not represented on all
committees nor did other industries object to the standards as published because such
standards were of no concern to them.

[[10]] According to the then managing director of ANSI, "some 180 American
National Standards were adopted in Walsh-Healey Public Contract Act Regulations issued by
the Secretary of Labor in May 1969."  Occupational Safety and Health Act,
1970: Hearings on S.2193 and S.2788 Before the Subcomm. on Labor of the Senate
Comm. on Labor and Public Welfare , 91st Cong., 1st & 2d Sess. 461 (1969-70)
(statement of D. Peyton); see also id . at 150-52 (Department of Labor "adopted
eight or nine [ANSI health] standards, under their Walsh-Healey health standards were from
a non-consensus organization, the American Conference of Governmental Industrial
Hygienists) (statement by M. Key, director of Bureau of Occupational Safety and Health,
Department of Health, Education and Welfare).  See also Bureau of Labor Standards,
Dept. of Labor , Status of Safety Standards , 4-5 (1968) (Labor Department
proposed adoption of consensus standards in 1968 under Walsh-Healey Act; adopted them in
1967 under Service Contract Act.)  The Construction Safety Act standards that appear
in the 1972 edition of the Code of Federal Regulations incorporated 33 ANSI and NFPA
standards by reference, while other standards, including entire subparts, were lifted with
only some changes from ANSI standards.  For example, the standard 1518.500(d)(1), see
36 Fed. Reg. 25232 (Dec. 30, 1971)--was derived with only minor changes from ANSI
A.12.1--1967, Safety Requirements for Floor and Wall Openings, Railings, and Toeboards
� 5.1, p. 9.  This and other derivations have been noted by the courts of appeals
and the Commission.  See Diamond Roofing Co. v. OSHRC , 528 F.2d 645, 650 &
n. 12 (5th Cir. 1976) (noting derivation of section 1926.500(d)(1)); L.R. Willson &
Sons v. OSHRC , 698 F.2d 507, 515 (D.C. Cir. 1983) (derivation of section
1926.450(a)(5) from ANSI A14.13--1956).

[[11]] Indeed, the standard cited and applied in this case has often given rise to
the protest by cited employers that necessary work cannot be done with the guardrails in
place.  E.g. , Robert W. Setterlin & Sons, Co. , 76 OSAHRC 53/D8, 4
BNA OSHC 1214, 1217, 1975-76 CCH OSHD � 20,682, p. 24,774 (No. 7377, 1976); Universal
Sheet Metal Corp. , 2 BNA OSHC at 1062, 1973-74 CCH OSHD at pp. 22,340-41.

[[12]] The Eighth Circuit's full discussion of the inflexible application of an
impossibility standard is as follows:

While we are mindful of the broad scope and remedial purposes of the Occupational
Safety and Health Review Act, we are of the opinion that some modicum of reasonableness
and common sense is implied.  There is a point at which the impracticality of the
requirement voids its effectiveness and that point has been reached when to erect an
entire wall, a project said take approximately two hours, petitioner must begin an endless
spiral of tasks consisting of abatement activities which necessitate further protective
devices, i.e., guardrail to erect wall, scaffold to erect guardrail, safety devices to
erect scaffold, etc.  We agree with the dissent that some demarcation line must be
drawn between that which is genuinely aimed at the promotion of safety and health and that
which, while directed at such aims, is so imprudent as to be unreasonable.

[[13]] 29 C.F.R. � 1910.20(e)(iii)(b) (access to employee exposure and medical
records); � 1910.134(a)(1) (respiratory protection); �1910.268(m)(11)(vi)(A)
(telecommunications); � 1910.1001(d)(1)(ii) (asbestos); 1910.1017(f)(1) (vinyl chloride);
� 1910.1029(f)(1)(i) (coke oven emissions); 1910.1043(e)(1) (cotton dust); �
1910.1044(g)(1) (1, 2 dibromo-3-chloropropane); � 1910.1045(g)(1)(i) (acrylonitrile); and
� 1910.1047(f)(1)(i) (ethylene oxide).

[[14]] See also note 4 supra .  In exploring the basis for the
infeasibility defense its predecessor, the impossibility defense, we have considered
whether the availability of procedures for seeking permanent and temporary variances from
the Secretary under sections 6(d) and 6(b)(6)(A) of the Act, 29 U.S.C. � 655(d) and
(b)(6)(A), should lead the Commission to hold that no defense is available at all.  
Like our predecessors, we conclude that availability of a variance procedure is of no
consequence.  It bears emphasis that infeasibility or even difficulty of compliance
is irrelevant in a permanent variance proceeding.  According to section 6(d), the
sole criterion is whether the means used by the employer "will provide
employment...as safe and healthful as those which would prevail if he complied with the
standard."  The unstated premise if the permanent variance procedure is that the
standard was intended to apply and operate literally and that some means of providing a
safe and healthful workplace do exist.  The entire point of the infeasibility defense
is, however, that sometimes this premise does not obtain--that the standard was not
intended to literally apply or that means of compliance do not exist.  As we have
said, however, the nature of the standards and the structure of the Act require that some
means be available for addressing those concerns.  Finally, the temporary variance is
not available once the effective date of the standard has passed.  See section
6(b)(6)(A)(i).  As the D.C. Circuit stated when it recognized the infeasibility
defense for a section 6(b) standard, "[t]hese variances are therefore useless to the
employer who claims that he can find no practical way of meeting the health and safety
demands of an OSHA standard...."  United Steelworkers v. Marshall , 647
F.2d 1189, 1268 (D.C. Cir. 1980).

[[15]] Courts have allowed administrative agencies considerable discretion in
placing burdens of persuasion.  See N.L.R.B. v. Transportation Management Corp. ,
462 U.S. 393 (1983); Zurn Industries v. N.L.R.B. , 680 F.2d 683 (9th Cir. 1982) cert .
denied , 459 U.S. 1198 (1983); N.R.L.B. v. Fixtures Manufacturing Corp. , 669
F.2d 547 (8th Cir. 1982).

[[16]] Cf . National Realty & Construction Co. v. OSHRC , 489 F.2d
1257, 1266 (D.C. Cir. 1973).

[[17]] While the Fifth Circuit has expressed concern in this area, it has upheld
general standards against challenges that hey were unconstitutionally vague for failure to
provide employees with reasonable notice of what is required.  See Ryder Truck
Lines, Inc. v. Brennan , 497 F.2d 230 (5th Cir. 1974), upholding 29 C.F.R. �
1910.132(a), and B & B Insulation, Inc. v. OSHRC , 583 F.2d 1364 (5th Cir.
1978), upholding 29 C.F.R. � 1926.28(a) ("We conclude...that its requirements are
not unforeseeable if the standard is read to require only those protective measures which
the knowledge and experience of the employer's industry, which the employer is presumed to
share, would clearly deem appropriate under the circumstances.")

[[18]] Several circuits of the Courts of Appeals have held that in order to
satisfy due process the Secretary must prove that there is a feasible method of complying
with the standard, if the standard does not specify a means compliance.  See L.R.
Willson & Sons, Inc. v. OSHRC , 698 F.2d 507 (D.C. Cir. 1983); Modern Drop Forge
Co. v. Secretary of Labor , 683 F.2d 1105 (7th Cir. 1982); Voegle Co. v. OSHRC ,
625 F.2d 1075 (3d Cir. 1980); Ray Evers Welding v. OSHRC , 625 F.2d 726 (6th Cir.
1980); Bristol Steel & Iron Works, Inc. v. OSHRC , 601 F.2d 717 (4th Cir. 1979);
General Electric Co. v. OSHRC , 540 F.2d 67 (2d Cir. 1976).