Did Respondent establish as an affirmative defense that compliance with the cited standard was infeasible?
To establish the affirmative defense of infeasibility, the burden is on the employer to show that “(1) the means of compliance prescribed by the applicable standard would have been infeasible, in that (a) its implementation would have been technologically or economically infeasible or (b) necessary work operations would have been technologically or economically infeasible after its implementation, and (2) there would have been no feasible alternative means of protection.” Southern Pan Services Co., 21 BNA OSHC 1274, 1278 (No. 99-0933, 2005); Star Brite Construction Co., 19 BNA OSHC 1687, 1690 (No. 95-0343, 2001); V.I.P. Structures, Inc., 16 BNA OSHC, 1873, 1874 (No. 91-1167, 1994). If literal compliance is not feasible, the employer must abate or reduce the hazard insofar as possible, even if exact compliance is not possible. Peterson Brothers Steel Erection Co. v. SOL, 26 F.3d 573, 579 (5th Cir. 1994). The burden is on the employer to establish either that an alternative protective me
