HURLOCK ROOFING COMPANY

OSHRC Docket No. 14907

Occupational Safety and Health Review Commission

October 31, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor , U.S. Department of Labor

Thomas Herlihy, III, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge David H. Harris is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678. The issue is whether Respondent (Hurlock) violated 29 C.F.R. 1926.28(a) n1 by failing to use lifelines and safety belts to protect its employees working on a flat roof against falling to the ground below. Judge Harris concluded that Hurlock violated the standard as alleged, rejecting Hurlock's arguments that compliance would be impossible or would expose its employees to a greater hazard. He assessed a $55 penalty. We affirm the judge's decision.

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n1 This standard provides:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

Hurlock was originally cited for allegedly violating 29 C.F.R. 1926.500(d)(1) by failing to protect the perimeter of the roof with a standard railing. The judge permitted the Secretary, over Hurlock's objection, to amend his citation to add the 1926.28(a) charge. Hurlock does not continue to press its objection to the amendment on review.

The judge concluded that Hurlock did not violate 1926.500(d)(1), relying on Commission precedent holding that standard inapplicable to flat roofs. See, e.g., Central City Roofing Co., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD P20,761 (No. 8173, 1976). The Secretary does not take exception to this holding.

The judge also affirmed a citation for violation of 29 C.F.R. 1926.450(a)(10) and vacated a citation alleging violation of 1926.450(a)(9). Neither party has taken exception to his disposition of these items, and, in the absence of a compelling public interest, the Commission will not review these items. Water Works Installation Corp., 76 OSHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).

[*2]

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Hurlock was installing the roof of a one-story masonry building in Wilmington, Delaware. The roof was essentially flat, was 75 feet wide by 106 feet long, and was 16 feet above the ground in the rear and 20 feet high in the front. Some scaffolding was located along the front and part of one side of the building, and might have prevented an employee from falling to the ground in those locations. However, no means of fall protection was employed along the remainder of the roof's perimeter.

The building structure consisted of outside masonry walls and an interior bearing wall running along the length of the building, with two spans of steel joists running between the interior wall and the exterior walls. Steel decking welded to the joists formed the base of the roof. Hurlock's task was to install roofing material over the steel decking.

The roofers first used mops to sprinkle the deck with hot asphalt, then set an insulation board over the asphalt. They next placed a base sheet upon another layer of hot asphalt. Above the base sheet they placed another layer of hot asphalt, a layer of ply felt, [*3] and still another layer of hot asphalt. The roofers would perform these operations on sections of about 8 to 10 feet in size, going through the entire process of installing insulation board, base sheet, and ply felt for each section in turn. The roofers also installed flashing along the edges of the roof. In doing so, a roofer would trowel a layer of plastic cement on top of the wall, apply one ply of 15 pound asbestos, trowel another layer of cement, and apply two layers of flashing material.

Five roofers spent seven working days completing the project. During 15 to 20% of that time, employees worked within one foot of the edge, installing both the roofing material and the flashing. At no time did they use safety belts. There was no lifeline or structural object on the roof to which a safety belt could have been tied.

Much of the testimony was directed at whether it would have been possible to install a lifeline to which the roofers could have tied safety belts, and whether such a lifeline would have created other problems. Tackett, the OSHA compliance officer who inspected Hurlock's worksite, said that a lifeline could have been rigged to an eyebolt either welded or bolted [*4] to the trusses under the roof decking. In his opinion, such an eyebolt could withstand a minimum dead weight of 5400 n2 pounds if properly installed. He based this opinion on the fact that the roof had to be able to support 125 pounds per square foot in order to comply with local light industry building codes.

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n2 The 5400 pound requirement is derived from 29 C.F.R. 1926.104(b), which provides:

Lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5400 pounds.

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Hurlock, the company's vice-president, testified that burns from hot asphalt were the most common injury in the roofing industry. He thought that a lifeline arrangement such as Tackett suggested would create a tripping hazard and increase the risk of roofers getting burned. Hurlock was also concerned that the lifelines of five roofers would get in each other's way, as well as becoming "globbed up with the hot asphalt."

Hurlock's foreman, Lee, also thought that a lifeline [*5] attached to an eyebolt, as Tackett suggested, would present a tripping hazard and therefore increase the danger that an employee could become burned. He also stated, however, that a lifeline attached above the head of the workers would not create any additional hazard.

Another roofing contractor, Bafundo, testified for Hurlock. He agreed that lifelines would create a tripping hazard, and thought that the increased danger from burns outweighed the possibility of falling. He was also concerned that lifelines would stick to the hot asphalt. In order to prevent this, the lifeline would have to be kept taut and tied to an anchorage above the roofline. He said that this could be accomplished by using a double line connected with a taut line hitch to the lifeline anchorage.

Hurlock, Lee, and Bafundo all testified that it was not the practice in the roofing industry to use lifelines and safety belts on roofs such as the one in issue. Both Bafundo and Hurlock, however, considered that roofers working within one foot of the edge were exposed to a fall hazard. Compliance officer Tackett was of the opinion that the zone of danger extended six feet in from the edge of the building.

Hurlock's [*6] final witness was Orr, a structural engineer. During Orr's testimony, Hurlock sought to introduce into evidence and question Orr about a report entitled Protection of Roofers from Falling Risks, (hereinafter, "the report"), prepared by the engineering firm of Simpson, Gumpertz & Heger, Inc., under the sponsorship of the National Roofing Contractors Association. The report was prepared in connection with a proposed standard requiring fall protection for workers on roofs in general industry. It examined various types of fall protection, including safety belts and lifelines, and described in detail several possible lifeline arrangements which roofers could conceivably use. The overall thrust of the report's analysis of such systems was that many roofs could not support the 5400 pound requirement for lifelines established by 29 C.F.R. 1926.104(b). (See n. 2, supra).

The report determined the feasibility of various fall protection devices for a prototype building consisting of four outside non-bearing masonry walls, with a roof of 22 gage corrugated steel decking welded to steel joists. It was assumed that the roof would be able to withstand a live load of [*7] 20 pounds per square foot (psf) and a dead load of 16 psf. n3 The devices considered were structures which would be located on the roof to enable employees to tie off to lifelines anchored above their heads. The structures would either be attached to the roof decking or supported by counterweights. The report calculated that the size of the counterweights necessary to enable a structure to support a weight of 5400 pounds would be so great as to cause the roof to collapse. Similarly, if a structure were attached to the roof, a 5400 pound force on the lifeline would overstress the joists, causing them to fail.

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n3 The dead load is the weight of the roof itself along with equipment located on the roof. The live load is any extra weight that might be superimposed on the roof, such as the weight of workmen, snow, or a protective device.

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Although he agreed with the conclusions of the report, Orr could not vouch for the reliability of its authors. Since the authors' reliability could not be established, the judge refused [*8] to admit the report into evidence.

Orr then testified that he had examined the building on which Hurlock's employees were working and concluded that the deck and joists, which he said were designed for a 50 psf total load, could not support the force necessary for an adequate lifeline system. The interior bearing wall could, however, sustain this additional load. Orr concluded that a lifeline system capable of supporting 5400 pounds could be installed by erecting a seven-foot high mast on the center interior wall, stabilized by four guy-wires running from the mast to the steel joists. The mast could be attached to the wall by expansion bolts, and the entire installation could be made in about half a day. At least four employees could be safely tied off to lifelines attached to the mast.

Except for the use of the mast, Orr did not think there was any other feasible way to attach lifelines to the roof. Orr opined that the guy-wires securing the mast, which would run from the top of the mast to the roof deck at an angle of 45 degrees, would create an additional tripping hazard. He also thought that the mast he described would not be able to withstand the weight of two employees [*9] falling off the same side of the roof simultaneously.

In concluding that Hurlock violated 1926.28(a) as alleged, Judge Harris rejected Hurlock's arguments that the standard does not apply to flat roofs, that its employees were not exposed to a hazard cognizable under the standard, that the use of safety belts and lifelines would not have been possible, and that the use of safety belts and lifelines would have resulted in greater hazards to its employees. n4 Hurlock raises essentially these same arguments on review. We deal with each of the arguments in turn.

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n4 The judge rejected Hurlock's last two arguments because he found that utilization of a mast, as suggested by Orr, was neither impossible nor created greater hazards. He did not rule upon Hurlock's defenses in the context of Tackett's suggestion that a lifeline could have been rigged to an eyebolt.

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Hurlock's argument that 1926.28(a) does not apply to flat roofs is based on the decision in Langer Roofing and Sheet Metal, Inc. v. Secretary of Labor, 524 [*10] F.2d 1337 (7th Cir. 1975). In that case the court concluded that an OSHA fall protection standard requiring protection on roofs with a slope greater than 4 in 12, 29 C.F.R. 1926.451(u)(3), evidenced the Secretary's intent not to require fall protection on roofs of lesser slope. We have disagreed with the court's reasoning and have held that other fall protection standards, including 1926.28(a), can be applied to eliminate the hazard that arises whenever employees work near the perimeter of a roof of any slope. John's Roofing & Sheet Metal Co., 78 OSAHRC 57/E8, 6 BNA OSHC 1792, 1978 CCH OSHD P22,857 (No. 76-1140, 1978); Hamilton Roofing Co., 78 OSAHRC 57/C1, 6 BNA OSHC 1771, 1978 CCH OSHD P22,856 (No. 14968, 1978). Accordingly, we reject the argument that the standard does not apply.

In arguing that there was no hazard cognizable under 1926.28(a), Hurlock contends that the Commission should apply a reasonable person test to determine whether or not a hazard existed. Hurlock points out that this test is applied under a general industry standard similar to 1926.28(a), citing Cape and Vineyard Division v. OSHRC, 512 F.2d 1148 (1st Cir. 1975), and urges that the Commission [*11] apply a similar test under 1926.28(a). In Hurlock's view, the evidence establishing that safety belts and lifelines are not used in the roofing industry on roofs of the type Hurlock was installing here negates a conclusion that a reasonable person would have recognized a hazard under the facts present in this case.

We have recently decided that the question of whether there is a hazard within the meaning of 1926.28(a) should be determined by application of a reasonable person test. S & H Riggers and Erectors, Inc., 79 OSAHRC, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979). We stated, however, that while industry custom and practice is relevant under that test, it is not conclusive. The ultimate inquiry is "whether a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment." 7 BNA OSHC at 1263, 1979 CCH OSHD at 28,436. We rejected a test based solely on industry custom and practice because we concluded that an industry's failure [*12] to deal adequately with preventable hazards should not excuse an individual employer's failure to provide the protection required by a specific standard.

We conclude that a reasonable person would recognize a hazard warranting the use of personal protective equipment under the facts of this case. The employees here worked at the very edge of the roof, and were obviously exposed to the hazard of falling off the edge. Indeed, in S & H Riggers and Erectors, supra, we concluded that employees working within four feet of the edge of a floor were exposed to a similar hazard.

We also held in S & H Riggers and Erectors that the Secretary must specify the appropriate form of personal protective equipment to eliminate the hazard. The Secretary satisfied that burden here by stating, in his amendment to the citation, that safety belts and lifelines should have been used.

Hurlock, however, raises two affirmative defenses: it claims that compliance is impossible and would result in increased hazards to its employees. Both defenses are recognized by Commission precedent. S & H Riggers and Erectors, Inc., supra. We conclude, however, that Hurlock has established neither defense. [*13] n5

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n5 Hurlock's arguments are directed toward utilization of a mast, and we address Hurlock's defenses in that context. We make no finding regarding Tackett's suggestion of a lifeline attached to an eyebolt. Although Hurlock's witnesses asserted that Tackett's suggestion would create greater hazards, the judge did not address the dispute. Since we find Hurlock could have used a mast, we need not decide whether Tackett's suggestion would create greater hazards.

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In arguing impossibility of compliance, Hurlock does not contend that the mast arrangement suggested by Orr could not have been erected or would not have supported the 5400 pound required by 29 C.F.R. 1926.104(b). Instead, Hurlock argues that the mast could only have protected four employees at one time, whereas five of Hurlock's employees worked on the roof, and that the mast might not have been able to support two employees falling off the same side of the roof at the same time. Regarding the former argument, the fact that Hurlock might not have been [*14] able to protect all five workers simultaneously does not excuse its complete failure to provide any protection at all. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979); Cornell & Co., 76 OSAHRC 122/C11, 4 BNA OSHC 1715, 1976-77 CCH OSHD P21,118 (No. 9054, 1976), rev'd on other grounds, 573 F.2d 820 (3rd Cir. 1978). Moreover, in order to successfully establish the defense of impossibility of compliance, an employer must show that it took alternative steps to protect its employees or that such alternatives were unavailable. Hurlock has not shown that it was necessary for all five employees to have been near the edge of the roof at the same time. Thus, one possible alternative to protect the employee who could not have tied off would have been to arrange the work schedule to render unnecessary the presence of all five employees near the edge of the roof simultaneously, and to instruct employees not to go near the edge unless it was possible to tie off. Hurlock did not demonstrate that this could not be done.

The argument that compliance was impossible because the mast might not protect two employees who fell off the [*15] roof at the same time borders on the frivolous. That a protective device might not provide adequate protection against an extreme and unlikely eventuality cannot excuse an employer from providing the protection required by a standard.

Hurlock's greater hazard defense is largely based on the supposed tripping and entanglement hazard that lifelines would present and on the increased danger of burns that a tripping hazard would involve in view of the use of hot asphalt in fabricating the roof. In order to establish a greater hazard defense, an employer must show that the hazards of compliance are greater than those of noncompliance, that alternative means of protection were used or were unavailable, and that an application for a variance would have been inappropriate. S & H Riggers and Erectors, Inc., supra. Hurlock has not demonstrated any of these elements.

Hurlock's foreman, Lee, testified that lifelines attached to an eyebolt at roof level would create a tripping hazard. Lee also testified, however, that no additional hazard would result if lifelines could be attached above the heads of the employees. Since Orr's testimony demonstrates that lifelines could be rigged in [*16] this manner, then Lee's testimony read as a whole suggests that properly rigged lifelines would not create an additional tripping hazard.

Another witness, Bafundo, offered the opinion that lifelines would create a tripping hazard, and his opinion was not dependent on whether the lines were lying on the roof or were tied to an overhead structure. Bafundo testified that employees would trip over the lines because "they have got enough things up there to worry about to trip over without having to worry about tripping over lines."

Bafundo's testimony is inherently contradictory. He recognizes that roofing employees must already be alert to tripping hazards, but then assumes that those same employees will not be able to avoid tripping over safety lines. We think it is more reasonable to infer that employees who must already be sensitive to possible tripping hazards will be able to adjust to the use of lifelines without creating any significant additional tripping hazard. Accordingly, we are more persuaded by Lee's opinion that lifelines attached above the heads of employees will not create an additional hazard than we are by Bafundo's contrary opinion. We also note that, in two [*17]

Accordingly, Hurlock has not shown that the use of safety belts tied off to lifelines would necessarily create a tripping hazard. n6 Moreover, Hurlock has not shown that even if lifelines would create a tripping hazard, n7 any increased risk of burns exceeds the hazard of falling from the roof to the ground below. And in any event, Hurlock has not demonstrated that other means of protection could not have been used or that a variance application would have been inappropriate. See S & H Riggers and Erectors, Inc., supra.

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N6 Hurlock also raises several peripheral arguments in support of its greater hazard defense. It points to Orr's statement that the guy-wires to the mast would create a tripping hazard, and it asserts that employees would have to spend additional time near the edge of the roof to bring onto the roof the equipment and material necessary to install the mast and lifelines. It is sufficient to observe that neither of these additional "hazards" exceeds the fall hazard presented by the necessity for Hurlock's employees to spend several man-days working at and near the edge of the roof.

n7 As noted above, one of the elements of a greater hazard defense is that the hazards of compliance must be greater than the hazards of noncompliance. Tripping alone is not a greater hazard than falling off the edge, and hence to the extent Hurlock relies upon tripping alone to establish its defense, the defense must fail. See Russ Kaller, Inc., t/a Surfa-Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD P21,152 (No. 11171, 1976).

[*18]

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Hurlock's final argument is that the judge erred in excluding the report from evidence. Hurlock relies on Rule 703 of the Federal Rules of Evidence, which provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Hurlock's reliance on this rule is misplaced. Rule 703 is not a rule concerning admissibility of documents; it involves the type of data on which an expert may base an opinion. Indeed, by its very terms it contemplates that the facts on which an expert bases an opinion may not be admissible into evidence. Thus, Rule 703 provides no basis for concluding that the report is admissible. n8

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n8 Hurlock also asserts that the judge erred in precluding Orr from testifying as to his own findings and conclusions. This assertion is incorrect. The judge not only permitted Orr to state his own findings and conclusions, he permitted him to testify that he adopted the findings and conclusions in the report as his own. Indeed, the judge stated, "if this is overturned on the appeal and the report is received, then you have this testimony in that he has adopted the conclusions in the report."

[*19]

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Nevertheless, the judge erred in excluding the report from evidence. In referring to Orr's inability to vouch for the reliability of its preparers, n9 the judge was obviously concerned with the hearsay nature of the report, that is, he was concerned that admitting the report would place in evidence statements by persons made outside the hearing, offered to prove the truth of the matters asserted, with no opportunity for such persons to be cross-examined on the accuracy of those statements.

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n9 We note that Orr testified the report was commissioned by the National Roofing Contractors Association, and that this evidence was not rebutted. Accordingly, the authenticity of the report was sufficiently established. Fed. R. Evid. 901(b)(1).

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It is well established that hearsay is admissible in administrative proceedings and may be used as probative evidence. Richardson v. Perales, 402 U.S. 389 (1971); B & K Paving Co., 74 OSAHRC 64/A2, [*20] 2 BNA OSHC 1173, 1974-75 CCH OSHD P18,570 (No. 59, 1974). This is consistent with the Administrative Procedure Act which provides that "[a]ny oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence." 5 U.S.C. 556(d). This rule recognizes that an agency should not be bound by technical rules as to admissibility of evidence. Davis, Administrative Law Treatise, 14.08 (1958). Indeed the application of technical rules of evidence may well prevent the parties from obtaining the hearing they seek and the Commission from rendering an informed opinion on all relevant information. Therefore, as a matter of policy, the Commission's administrative law judges should not exclude evidence on the basis it is hearsay. Naturally, the weight to be assigned hearsay evidence will depend on its apparent reliability, and must take into account any possible bias or interest on the part of the person or persons who made the statements sought to be introduced. McCormick, Handbook of the Law of Evidence, 350 (2nd ed. 1972). But the fact that certain evidence may ultimately [*21] be accorded little or no weight should not cause the judge to exclude the evidence from the record.

Although we conclude that the judge erred in ruling the report inadmissible on hearsay grounds, the error was harmless. As noted above, Hurlock's objection to the judge's ruling is based on its belief that the judge refused to permit Orr to testify to his own findings and conclusions, and that belief is erroneous. (See n. 8, supra). Accordingly, Hurlock's objection provides no basis for reversing the judge's decision.

Finally, Hurlock raises a number of constitutional issues. It raises several objections to the constitutionality of various provisions of the Act itself, a subject on which the Commission has no authority to rule. Buckeye Industries, Inc., v. Secretary of Labor, 587 F.2d 231 (5th Cir. 1979); Chromalloy American Corp., 79 OSAHRC, 7 BNA OSHC 1547, 1979 CCH OSHD P23,707 (No. 77-2788, 1979). Hurlock's contention that the Act unconstitutionally deprives it of trial by jury has, however, been rejected by the Supreme Court. Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977). Moreover, Hurlock's argument that the civil penalty enforcement mechanism established [*22] by Congress violates due process has been rejected by the courts. Mohawk Excavating, Inc. v. OSHRC, 549 F.2d 859 (2d Cir. 1977); Dan J. Sheehan Co. v. OSHRC, 520 F.2d 1036 (5th Cir. 1975), cert. denied, 96 S.Ct. 1458 (1976).

Hurlock also argues that it has been subjected to a warrantless inspection in violation of the fourth amendment. Although the Supreme Court, in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), has held that the Act is unconstitutional insofar as it purports to authorize inspections without a warrant or its equivalent, the inspection here was conducted before that case was decided. The Commission has held that any remedy which might otherwise be appropriate if an inspection violates the fourth amendment will not be applied retroactively to inspections that occurred before the decision in Barlow's was announced. Accordingly, even if the inspection failed to conform to the fourth amendment tests set forth in Barlow's, Hurlock would not be entitled to exclusion of the evidence. n10

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n10 We also note that Hurlock consented to the inspection of its workplace. Thus, there was no violation of Hurlock's fourth amendment rights. Stephenson Enterprises, Inc. v. Marshall, 578 F.2d 1021, 1024 (5th Cir. 1978).

[*23]

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Lastly, we reject Hurlock's argument that 1926.28(a) is unconstitutionally vague. S & H Riggers and Erectors, Inc., supra.

The judge's decision is affirmed.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, Concurring:

I agree with my colleagues that Hurlock violated 29 C.F.R. 1926.28(a) in this case. My views on the proper interpretation of 29 C.F.R. 1926.28(a), however, differ from those employed by the majority and are set forth in my concurring opinion in S & H Riggers & Erectors, Inc., 79 OSAHRC    , 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979) (concurring opinion) appeal filed, No. 79-2358 (5th Cir. June 7, 1979).

I would find that a hazard within the meaning of 29 C.F.R. 1926.28(a) exists when a reasonable person familiar with the circumstances of the cited employer's industry would recognize that a hazard exists. In this case, two of Hurlock's own witnesses, both of whom were familiar with the roofing industry, testified that Hurlock's employees were exposed to a fall hazard while working within one foot of the edge of the roof. This is sufficient to establish that a reasonable [*24] person familiar with the industry would have recognized a hazard during at least part of the time the employees worked on the roof. Moreover, as my colleagues note, employees who are working at the very edge of a roof are obviously exposed to the hazard of falling off the edge. Hurlock would have us hold that there is no hazard within the meaning of the standard if the practice in the industry is not to take any precautions under particular factual circumstances. I disagree. As long as the hazard is an obvious one, an abatement order under the standard may require that feasible safety precautions above those considered customary in the industry be employed. See Morton Buildings, Inc., 79 OSAHRC 7 BNA OSHC 1702, 1979 CCH OSHD     (No. 15565, 1979) (dissenting opinion) (when a fall hazard is not obvious, it is appropriate to look to the standard of care in the industry and hence place heavy reliance on industry custom and practice).

Unlike the majority, I would place the burden of proving the feasibility and likely utility of a particular type of personal protective equipment on the Secretary in all cases where the Secretary has cited an employer for a violation of 29 C.F.R. [*25] 1926.28(a). Moreover, in determining whether the use of personal protective equipment is feasible, I would consider evidence that normally concerns the issue of greater hazards and impossibility as relating to the question of feasibility, rather than as bearing on separate defenses. I would, however, place the burden on the employer in rebuttal to show that the use of the personal protective equipment recommended by the Secretary will cause consequences so adverse as to render its use infeasible. S & H Riggers & Erectors, Inc., supra.

In this case I would find that feasibility has been established. Orr's testimony establishes that a lifeline system capable of protecting four workers at any one time could have been readily installed, and would have provided substantial protection to Hurlock's employees during the period the employees had to work at the edge of the roof. Thus, safety belts and lifelines would have been a feasible and useful means of protecting Hurlock's employees. Moreover, the mast system envisioned by Orr would not have increased the employees' exposure to burn hazards, as the record indicates that the lifelines would have created a tripping hazard only [*26] if they were laid on the roof. Thus, Hurlock's evidence that lifelines lying on the roof would lead to an increased danger of burns does not tend to rebut the feasibility of using lifelines rigged to a mast above the employees' heads. n1

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n1 I also stated in S & H Riggers & Erectors, Inc., supra, that reference to other standards in Part 1926 must indicate the need for using the personal protective equipment which the Secretary asserts Respondent's employees should have used. 29 C.F.R. 1926.104 satisfies this criteria here.

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Finally, while I agree that hearsay is admissible in our proceedings, I do so with the caveat that a finding should not be based solely on uncorroborated hearsay. Paramount Plumbing & Heating Co., 77 OSAHRC 79/D14, 5 BNA OSHC 1459, 1977-78 CCH OSHD P21,820 (No. 12652, 1977), pet. for review filed, No. 77-4133 (2d Cir. July 8, 1977).