SECRETARY OF LABOR,
Complainant,

v.

PACE CONSTRUCTION CORPORATION,
Respondent.

OSHRC DOCKET NO. 85-1362

_DECISION_

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The Secretary of Labor alleges that Pace Construction Corporation
committed a serious violation of an OSHA safety standard governing
personnel hoists used in construction work. According to the Secretary,
Pace violated 29 C.F.R. § 1926.552(c)(4) by failing to erect 6˝ foot
high doors at the hoistway entrances on the roof level of a building
under construction. We conclude that Pace violated the standard but that
the violation should be classified as nonserious.

Pace was the general contractor for the construction of an 18-story
building in Atlanta. The company erected a personnel hoist adjacent to
the building's perimeter to carry workers to the building's upper
levels. Until about two weeks before the alleged violation occurred, the
hoist extended only to the level of the highest floor, but not to the
roof level. However, reacting to subcontractor complaints that it was
dangerous for workers carrying tools and materials to climb ladders to
reach the roof, Pace extended the hoist to the roof level for the use of
those workers.

Pace allegedly violated 29 C.F.R. § 1926.552(c)(4), which provides:

*§ 1926.552 Material hoists, personnel hoists, and elevators.*
*             *              *
(c) _Personnel hoists_.
*             *              *
(4) Hoistway doors or gates shall be not less than 6 feet 6 inches high
and shall be provided with mechanical locks which cannot be operated
from the landing side, and shall be accessible only to persons on the car.

On the floors below the roof, Pace had erected sturdy plywood doors, 6˝
feet high, at each location where a hoist car met the floor, that is, at
each "entrance" to the "hoistway" or "hoistway shaft." However, on the
roof level, Pace did not erect such doors. Instead, Pace erected gates
consisting of single lengths of 2 x 4 Lumber set in notches about 3˝
feet high. These gates were located at gaps in fencing that Pace had
erected around the roof perimeter to provide fall protection to the
workers on the roof. The OSHA compliance officer who inspected the
worksite testified that the gates did not provide adequate fall
protection for workers on the roof.

Before the administrative law judge, Pace contended that the standard
did not apply because the hoist was not used as a personnel hoist at the
roof level. The judge, noting that the hoist was regularly used to carry
workers carrying tools and materials to the roof, rejected this
argument. We agree with the judge's reasoning. Pace also argued that
erection of 6˝foot doors on the roof would be infeasible because the
high winds that existed on the worksite could blow the doors off the
roof and endanger workers below. In rejecting this argument, the judge
observed that doors containing large areas of fencing would alleviate
the problem that concerned Pace. We agree, and note that the standard
specifically permits doors of that construction.[[1/]] We therefore
affirm the judge's finding that Pace violated the cited standard.

Pace argues that a 6˝ foot high door on the roof of a building would be
an "unnecessary, superfluous appendage." We cannot decline to enforce a
standard because we believe it imposes an unnecessary requirement. We
note, however, that the record demonstrates confusion over the purpose
of the standard that is at issue here. Our examination of the standard's
history reveals that the confusion arises from an apparent mistake that
occurred when the standard was promulgated.

The OSHA compliance officer who inspected Pace's worksite was concerned
that the 2 x 4's Pace was using as hoistway gates did not provide
adequate fall protection to employees on the roof. The compliance
officer noted that the gates were about the height of the top rail of a
standard railing, but believed the fall protection was inadequate
because the gates lacked the midrails required of standard
railings.[[2/]] Thus, the compliance officer did not state that a 6˝
foot high barrier was necessary to provide fall protection; the only
concern he expressed was based on the absence of midrails.

The compliance officer's testimony suggests that a 6˝foot high barrier
on the roof is not needed for fall protection. In seeking to determine
what purpose it would serve, we have examined the history of the
standard. Our examination reveals that the doors were originally meant
to be openings in a full-height barrier separating the hoistway from the
building. When closed, the doors would be part of the barrier; when
open, they would provide access to and from the hoist. The 6˝ foot
height requirement was to provide adequate clearance for employees
entering and leaving the hoist cars, not to provide a 6˝ foot high
barrier for fall protection.

The standards for personnel hoists were first promulgated by the
Secretary under the Construction Safety Act, 40 U.S.C. § 333. They were
adopted as OSHA standards under 29 U.S.C. § 655(a), which gave the
Secretary the authority to summarily adopt established federal standards
as OSHA standards within two years of the Occupational Safety and Health
Act's effective date.

The Secretary, in drafting the standard for promulgation under the
Construction Safety Act, used as a model a voluntary standard adopted in
1963 by the American National Standards Institute ("ANSI"). The ANSI
standard, A10.4-1963, "Safety Requirements for Workmen's Hoists,"[[3/]]
contained the following provision:

*4-4. Hoistway Door and Door Locking Devices*

*4-4.1 Height, Material, and Installation.* Hoistway doors shall be not
less than 6 ft. 6 in. high . . . .

*4-4.2 Door Locking Devices.* Landing doors shall be provided with any
of the locking devices specified in Part I, Section 111 of American
National Standard

A17.1-1960, or they may be provided with any means that will lock the
doors mechanically so that they cannot be opened from the landing side.
Locking devices shall be so located as to be inaccessible from outside
the hoistway. . . .

This section obviously served as the model for section 1926.552(c)(4),
the standard Pace allegedly violated. The ANSI standard also contained a
requirement for hoistway enclosures.

4-3.2 Hoistway Enclosures. Hoistways shall. be enclosed throughout their
height.

EXCEPTION. For towers located outside a building, the enclosures, except
those at the landing, may be omitted on the sides where there is no
floor or scaffold adjacent to the hoistway. Enclosures on the entrance
and exit side of the hoistway shall be full height. Other enclosures,
where required, shall be not less than 10 ft. high.

The 1963 ANSI standard did not define "hoistway" or "hoistway
enclosure," but definitions can be found in a later version of the
standard, ANSI A10.4-1975, "Safety Requirements for Personnel Hoists."

3.15 Hoistway. A temporary shaftway; the space traveled by the car.

3.15.1 Hoistway Enclosure. The structure which isolates the hoistway
from all other parts of the building and on which the hoistway doors or
gates, and door or gate assemblies are installed. (Emphasis added.)

Thus, as envisioned by the ANSI standard, a personnel hoist located
outside a building would have a barrier at the perimeter of the building
to isolate the hoistway from the building. This barrier would contain 6˝
foot high doors to permit access to and from the cars.

When drafting the Construction Safety Act standards, the Secretary kept
the requirement for 6˝ foot doors but omitted the requirement for the
hoistway enclosures the doors were supposed to be installed in. This was
evidently inadvertent. The Secretary included the following provision:

§ 1926.552 Material hoists, personnel hoists, and elevators.

(C) Personnel hoists.

(1) Hoist towers outside the structure shall be enclosed for the full
height on the side or sides used for entrance and exit to the structure.
At the lowest landing, the enclosure on the sides not used for exit or
entrance to the structure shall be enclosed to a height of at least 10
feet . . . .

This provision, which requires the enclosure of hoist towers is similar
to the ANSI provision requiring enclosure of hoistways,and was
apparently intended to accomplish the same purpose as the ANSI
requirement for hoistway enclosures. However, a hoist tower is not a
hoistway. The 1975 version of the ANSI standard, which contained the
definitions of "hoistway" and "hoistway enclosure" quoted earlier,
contains the following definition of "tower."

3.35 Tower. A vertical structure which supports and guides the car (and
the counterweight and overhead when used) within the tower structure.

Thus, the ANSI standard required hoistway enclosures, with doors in the
enclosures to permit access to and from the hoist cars. The OSHA
standard requires tower enclosures, but no hoistway enclosures. It does,
however, retain the ANSI requirement for hoistway doors even though it
does not require the hoistway enclosures ANSI intended for the doors to
be installed in.[[4/]]

The hoistway enclosures with installed doors or gates, as envisioned by
the ANSI standard, serve two important safety purposes. First, they
prevent people working or walking on the floor where the hoistway
entrance is located from falling into the opening to the bottom of the
shaft. This is the hazard that concerned the compliance officer in this
case. However, if that were the only hazard presented at the entrance to
the hoistway, it is not evident why the gates Pace had erected would not
have been sufficient to eliminate the hazard. Those gates substantially
complied with OSHA's requirements for material hoist gates,[[5/]] and
there is no apparent reason why the hazard of falling through the
entranceway to a personnel hoist is different than the hazard of falling
through the entranceway to a material hoist.

The second purpose the hoistway enclosure serves is to protect the
employees who ride the hoist by preventing tools, materials, and debris
from falling into the hoistway shaft and striking employees while they
are entering, leaving, or riding the hoist at lower levels.[[6/]] Even
if the hoistway is not totally enclosed, doors or gates at the hoistway
entrances will prevent objects from falling into the shaft and
endangering employees below. Exhibit C-3 in this case is a photograph
showing the sturdy plywood doors Pace erected at the hoistway entrances
on all of the floors except the roof, and those doors would protect
against objects falling into the hoistway shaft almost as well as a full
enclosure.[[7/]]They would also, of course, provide fall protection to
employees working on the floors where the doors are located.

Thus, the requirement for 6˝ foot high doors or gates at each hoistway
entrance serves the same safety purposes, albeit not to the same extent,
as the full hoistway enclosures that the ANSI standard required but that
the OSHA standard does not require. Pace violated section 1926.552(c)(4)
by failing to erect such doors or gates at the hoistway entrances on the
roof. We conclude, however, that the violation was not proven to be
serious as alleged. The only hazard discussed at the hearing was the
hazard of falling off of the roof edge into the hoistway shaft. As we
have noted, Pace's bar gates substantially conformed to the standard for
material hoist gates and would apparently have been adequate to protect
against that hazard. We also note that Pace provided perimeter
protection around the entire roof even though there is no general
requirement for such protection.[[8/]] The absence of 6˝ foot high doors
did present a potential hazard to employees riding the personnel hoist,
but the compliance officer did not discuss this hazard, and there is no
evidence in the record that would allow us to independently assess the
scope or degree of this hazard.[[9/]] Since the Secretary failed to
establish the gravity of the violation, we classify the violation as
nonserious and assess no penalty.

The violation we have just affirmed was alleged as item 1a of the
serious citation. Item 1b alleged violation of another standard, 29
C.F.R. § 1926.500(d)(2).

The judge affirmed both items as serious and assessed a combined penalty
of $200. Pace has not taken exception to the judge's affirmance of item
1b. We therefore affirm item 1b as a serious violation, and assess a
penalty of $100, half of the combined penalty assessed by the judge. We
affirm item 1a, the section 1926.552(c)(4) item, as a nonserious
violation and assess no penalty for that item.

FOR THE COMMISSION
DATED: April 27, 1989

------------------------------------------------------------------------
SECRETARY OF LABOR Complainant, v. PACE CONSTRUCTION CORPORATION,
Respondent.

OSHRC Docket No. 85-1362

APPEARANCES: Larry A. Auerbach, Esquire, Office of the Solicitor, U. S.
Department of Labor, Atlanta, Georgia, on behalf of complainant.
R. Daniel Douglass, Esquire, and J. D. Humphries, III, Esquire, Varner,
Stephens, Wingfield, McIntyre and Humphries, Atlanta, Georgia, on behalf
of respondent.

DECISION AND ORDER

SPARKS, Judge: An inspection was conducted of the construction site of a
19-story[[1/]] building where respondent was the general contractor to
determine compliance with the Occupational Safety and Health Act.
Respondent contested a serious citation charging it with violating 29
C.F.R. § 1926.552(c)(4)[[2/]] and 29 C.F.R. § 1926.500(d)(2).[[3/]] The
citation alleges that the personnel hoist had an inadequate gate at the
roof level and the hoist runway lacked standard railings at the same
Respondent has raised several defenses to the charges. At the conclusion
of the hearing, the parties were invited to submit briefs, and proposed
findings of fact and conclusions of law.

I

FINDINGS OF FACT

During the period October 15 through October 18, 1985, compliance
officer Jonathan Worrell conducted an inspection of the construction
project at 1000 Abernathy Road, Atlanta, Georgia, known as the North
Park Project (Ex. C- 4; Tr. 8, 44-45).

2. Respondent was the general contractor on the project at the time of
the inspection.

3. During the course of the inspection, the compliance officer inspected
each level of a building being constructed at the site, consisting of 19
floor levels and a roof level, and was accompanied by respondent's job
superintendent. and safety director (Tr. 23-25).

4. During the inspection of the above building, the compliance officer
used a hoist on the outside of the building to gain access to the roof
level of the building. At the roof level, the hoist was approximately 15
to 18 inches from the edge of the building, and at lower floor levels
the hoist was approximately 2 feet from the edge of the building (Tr.
26, 48, 72).

5. A three-foot let-down ramp extended from the hoist and overlapped the
edge of the building at the roof level. The ramp did not have standard
railings or other similar fall protection. A hoistway gate was
constructed in the perimeter protection around the roof (Tr. 97-28,
47-50, 71).

6. The gate in the perimeter protection at the roof level consisted of a
single 2-x-4-inch lumber bar with bracing, and notch-type bracing on
either end of the gate to hold it in place. The bar was sturdily
constructed and capable of withstanding the weight of a 200-pound
person. The gate had to be lifted out of the notch-type bracing to be
opened. But, as the gate did not have a midrail or other interior
protection such as safety fence, a person could fall through the gate
(Ex. C-1, C-2; Tr. 50, 74).

7. Perimeter protection consisting of three to three and a half foot
high safety fence surrounded the perimeter of the roof, recessed from
the edge of the roof (Ex. C-1, C-2; Tr. 50, 72).

8. The hoist was used only for the lower 19 floor levels of the building
until two weeks prior to the inspection, at which time the hoist was
extended to the roof level of the building at the request of certain
subcontractors to provide a means of carrying materials and tools to the
roof level. The gate in the roof level perimeter protection was
constructed after the hoist was extended to the roof, and prior to that
time, there existed standard perimeter protection (Tr. 17, 53-56, 73-74).

9. The regular access to the roof of the building by employees was by
ladder access from the lower floor level, both before and after the
hoist was extended to the roof. Hoist operators were instructed to let
off employees at the floor level below the roof, and only the hoistman
and persons carrying hand tools and small materials were permitted to
ride the hoist, to the roof level (Tr. 17, 55, 58, 64-65, 75).

10. Workers carrying hand tools or small materials to the roof were
required to use the hoist as it was a violation of company policy to use
the ladder while carrying objects (Tr. 55-56, 57, 58, 64).

11. At. the time of the inspection, no employees were performing work on
the roof within six feet of the perimeter protection or the hoist gate.
The workers on the roof were approximately 30 feet from the edge of the
building Tr. 30, 51, 71).

12. The hoist was used as a personnel hoist on the lower floor levels of
the building, and every hoist entrance on every lower floor level
complied with the cited OSHA standards (Ex. C-3; Tr. 25-26, 52-53, 70-71).

13. Following the inspection of the roof level and prior to the
compliance officer leaving the site, respondent erected a
six-and-a-half-foot plywood door and guardrails at the roof level
hoistway entrance as an abatement measure for the alleged violation (Tr.
60-61, 75-76).

14. The roof of the building has experienced winds strong enough to halt
work on occasion and strong enough so that plywood doors could be blown
down (Tr. 59-60, 78).

15. Respondent and its safety director were aware of the change to
permit the hoist to go to the roof and visited the roof twice between
the time the change was made and the inspection (Tr. 62-63, 65, 66).

16. A fall from the roof would result in death or serious injury.

II

The burden of proof is upon the Secretary of Labor, Astra Pharmaceutical
Products, Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126, 1981 CCH OSHD ¶ 25,578
(No. 78-6247, 1979).

The first issue is whether the hoist was a personnel or material hoist
because, if it was the latter as contended by respondent, there were no
violations.

Although the normal means of entrance to the roof for employees was by a
ladder, employees carrying small tools and small materials were required
to use the hoist. In fact, it was a violation of Pace's rule for a
person carrying such items to use the ladder. In addition, the hoist
operator regularly rode the hoist and at times delivered materials.

The Policy of permitting or requiring employees carrying tools or
materials to ride the hoist from the 19th floor to the roof is in direct
conflict with OSHA standards for the operation of material hoists.
Section 1926.552(b)(1)(i) requires posting of a notice on the hoist car
that "No Riders Allowed." Section 1926.552(b)(1)(ii) provides as follows:

No person shall be allowed to ride on material hoists except for the
purposes of inspection and maintenance.

It is clear that respondent's hoist was not a material hoist as
envisioned in OSHA standards. Because the hoistman and employees were
permitted to ride to the roof level, respondent was required to meet the
standard relating to personnel hoists at that level.

Respondent contends that the erection of a hoistway door or gate six
feet, six inches, high would create a greater hazard because the door
would be subject to being blown off the building by high winds which
have buffeted the building at times. The affirmative defense of greater
hazard requires respondent to establish the following elements:

In order to establish a greater hazard defense, the employer must prove
that (1) the hazards created by compliance with the requirements of the
cited standard are greater than those resulting from noncompliance, (2)
alternative means of protecting employees are unavailable, and (3) a
variance application under section 6(d) of the Act would be inappropriate.

M. J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1144, 1979
CCH OSHD ¶ 23,330 at p. 28,227 (No. 15094, 1979); Marion Power Shovel
Co., 80 OSAHRC 110/A2, 8 BNA OSHC 2244, 1980 CCH OSHD ¶ 24,915 at p.
30,730 (No. 76-4114, 1980).

Respondent's contention is bottomed on the premise that the standard
requires the erection of plywood doors with a large flat surface, as on
the floors below, which cannot be adequately anchored on the upper side
at the roof level (Ex. C-3). Respondent chose to erect a large plywood
door, but the standard does not require such a door. No reason is
advanced why a gate or door containing large areas of fencing would fail
to meet the requirements of the standard. A gate of that design would
not be subject to the force of the high wind and the hazard described by
respondent would not be present. Accordingly, respondent's claimed
defense that compliance with the standard would create a greater hazard
was not established.

Respondent suggests the Secretary did not prove that it had knowledge of
the conditions. The Secretary must prove that Pace knew or could have
known with the exercise of reasonable diligence of the noncomplying
condition. General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1981
CCH OSHD ¶ 25,345 (No. 13732, 1981); Dunlop v. Rockwell International,
540 F.2d 1283 (6th Cir. 1976); Brennan v. OSHRC (Alsea Lumber Co.), 511
F.2d 1139 (9th Cir. 1975); Prestressed Systems, Inc., 81 OSAHRC, 43/D5,
9 BNA OSHC 1864, 1981 CCH OSHD ¶ 25,358 (No. 16147, 1981); Scheel
Construction Co., 76 OSAHRC 138/86, 4 BNA OSHC 1825, 1976-77 CCH OSHD ¶
21,263 (No. 8687, 1976). It is not necessary that respondent realize
that the conditions are in violation of a standard but only that it know
of the operative circumstances. The evidence shows that Pace's
management called in the rigging subcontractor to make the change in the
hoist so that it could take employees with small tools and materials to
the roof level. The change in the perimeter guarding, by removing the
regular fencing and installing a gate, was performed by Pace employees.
Respondent's safety director was on the roof twice during the two-week
period between the time the hoist limit was changed and the inspection
(Tr. 62-63). It is clear that respondent's management was aware of the
conditions and indeed had created them.

Lastly, respondent contends that employees were not exposed to a direct
and immediate risk of death or serious bodily injury. Respondent
contends that there was no evidence to show that the hoist was ever used
as a personnel hoist. The evidence is irrefutable that employees
carrying tools and materials used the hoist and was the reason the hoist
was extended to the roof level (Tr. 62-65). The fact that employees were
carrying tools or materials does not make the hoist a material rather
than a personnel hoist. Pace further contends that the gate and rampway
present at the time were adequate protection and prevented exposure of
employees to any significant risk of death or serious bodily injury. A
fall from the roof would almost certainly result in death or serious
bodily injury, and, if no protection were present, the hazard would be
obvious. Respondent contends the gate on the roof was substantial and
could withstand the force of a 200-pound man. Although lacking a lock of
the type specified for personnel doors, the gate was recessed into a
grove which required intentional action to move. However, as shown in
exhibits C-1 and C-2, there was no "gate" at the roof other than the
single 2-x-4-inch piece of lumber. A person could easily fall under the
railing as there was no fencing or midrail to prevent such falls. A
person is clearly subject to a fall hazard at the gate. Pace also notes
that, although the three-foot runway which bridged the distance between
the hoist car and the roof was not equipped with a side rail, the
distance between the car and edge of the roof was only 15 to 18 inches
which would be easily crossed in one step. However, there was no
protection to prevent a fall from the side of the runway as would be
afforded by the standard railings.

Having concluded that the hoist was for personnel, respondent clearly
had not complied with the requirements at 29 C.F.R. § 1926.552(c)(4) and
29 C.F.R. § 1926-550(d)(2). The measures taken by respondent by erecting
the single 2-x-4-inch board and the runway (without standard railings)
do provide some measure of protection and are better than nothing, they
do not comply with the standards nor provide protection equivalent to
that required by the standards.
Employees were exposed to hazards of death or serious injury and,
therefore, the violations were serious. The gate consisting of the
single piece of 2-x-4-inch lumber would allow a person to fall through
the opening below the 2-x-4 as it had neither fencing material or a
midrail to prevent such a fall.

Although the runway between the hoist and roof floor covered an opening
of 15 to 18 inches, no protection of any type was afforded for the sides
of the runway which would also permit a fall. If such an accident
occurred, death or serious injury would result. Accordingly, respondent
was in serious violation of the standards as alleged.

The record is convincing that the violations were not the result of
intentional actions or unconcern. Pace has a good safety program and is
a safety-conscious employer (Tr. 19-20, 22). In this instance, it erred
by considering the hoist a material rather than a personnel hoist and
erecting protection accordingly.

Considering the gravity of the violations and giving particular weight
to the good faith and history of the respondent, a penalty of $200 is
reasonable and appropriate.

CONCLUSIONS OF LAW

1. Respondent is an employer subject to the Act and this proceeding.

2. Respondent violated 29 C.F.R. § 1926.552(c)(4) and 29 C.F.R. §
1926.500(d)(2) under conditions constituting serious violations.

ORDER It is ORDERED:

1. Items 1a and 1b of the serious citation are affirmed.

2. Penalties of $200 are assessed.

Dated this 21st day of July, 1986.
JOE D. SPARKS Judge


FOOTNOTES:

[[1/]] Section 1926.552(c)(16) provides that materials and components
for personnel hoists must meet the specifications of American National
Standard A10.4-1963, "Safety Requirements for Workmen's Hoists."
Sections 4-3.2.1 and 4-4.1 of A10.4-1963 provide that hoistway doors may
be constructed of openwork material meeting certain specifications.

[[2/]]The specifications for standard railings are found at 29 C.F.R. §
1926.500(f). A standard railings consists of a toprail about 42 inches
high, a midrail, and a toeboard. The railings must meet certain
specifications for materials and strength.

[[3/]] The Secretary's brief states that this ANSI standard was the
source of the present OSHA standards.

[[4/]] We note that both the Secretary and Pace apparently agree that
the OSHA standards for personnel hoists do not require construction of a
hoistway enclosure. Pace did not enclose the hoistway along the side of
the building, and the Secretary did not cite Pace for failing to enclose
the hoistway.

[[5/]] Section 1926.552 is captioned "Material hoists, personnel hoists,
and elevators." Subsection (b) of this section governs "material hoists"
while subsection (c) governs "personnel hoists." The standard cited in
this case is contained in section 1926.552(c). Its counterpart in
subsection (b) provides as follows:

(b) _Material hoists_.
*             *              *
(2) All entrances of the hoistways shall be protected by substantial
gates or bars which shall guard the full width of the landing entrance.
All hoistway entrance bars and gates shall be painted with diagonal
contrasting colors, such as black and yellow stripes.

(1) Bars shall not be less than 2- by 4-inch wooden bars or the
equivalent located 2 feet from the hoistway line. Bars shall be located
not less than 36 inches nor more than 42 inches above the floor.

Pace contends that its hoistway gates complied with the requirements for
material hoists. The testimony and photographic evidence suggests that
this is substantially true, except that the photographs indicate that
the bars were not painted with diagonal contrasting colors.

[[6/]] Material hoists do not require similar protection. Section
1926.552(b)(1)(ii) provides: "No person shall be allowed to ride on
material hoists except for the purposes of inspection and maintenance."
Thus, instances in which employees ride material hoists are rare.

[[7/]] Similarly, a door or gate containing large areas of fencing, as
discussed in the judge's decision, would prevent objects from falling
into the hoistway shaft.

[[8/]] The standard requiring perimeter guardrails for open-sided floors
and platforms, 29 C.F.R. § 1926.500(d)(1), does not apply to flat roofs.
_Central City Roofing Co._, 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77
CCH OSHD ¶ 20,761 (No. 8173, 1976). Perimeter protection during built-up
roofing work is required by 29 C.F.R. § 1926.500(g), but there is no
indication that such work was being performed at Pace's worksite.

[[9/]] For example, there is no evidence on the size or extent of tools,
materials or debris that were in use or present on the roof. Thus, we
cannot find that such objects were close enough to the hoistway to fall
into the shafts.

[[1/]] There was some confusion regarding the number of floors in the
building. There were 18 floor levels plus the roof; but as there was no
13th floor, they are numbered 1 through 19 (Tr. 70).

[[2/]] Section 1926.552(c)(4) of 29 C.F.R. states as follows:

Hoistway doors or gates shall be not less than 6 feet 6 inches high and
shall be provided with mechanical locks which cannot be operated from
the landing side, and shall be accessible only to persons on the car.

[[3/]] Section 1926.500(d)(2) of 29 C.F.R. provides as follows:

Runways shall be guarded by a standard railing, or the equivalent, as
specified in Paragraph (f) of this section, on all open sides, 4 feet or
more above floor or ground level. Wherever tools machine parts, or
materials are likely to be used on the runway, a toeboard shall also be
provided on each exposed side.