“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11340 AMERICAN BECHTEL, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 19, 1977DECISIONBEFORE CLEARY, Chairman;and BARNAKO, Commissioner.BARNAKO, Commissioner:??????????? A December 4, 1975 decision of Administrative Law JudgeJohn J. Morris is before this Commission pursuant to section 12(j) of theOccupational Safety and Health Act of 1970.[1] The issue is whether theJudge properly found that the Respondent violated the standard at 29 C.F.R.1926.28(a).[2]We affirm the Judge?s decision.??????????? Respondent was the prime contractor for the constructionof a sodaash processing plant. The exposure tohazardous conditions allegedly occurred when two of Respondent?s employeesclimbed from the inside wall of certain forming, where there was a scaffold, tothe outside where no scaffold was provided in order to tighten the bolts on theoutside walers. This operation took approximatelyfive minutes. The compliance officer who inspected Respondent?s worksitetestified that the employees were working at an estimated elevation oftwenty-five feet without an attached lifeline safety belt. He conceded,however, that he had not actually measured the height. On the other hand,several of Respondent?s employees testified that the elevation wasapproximately ten feet.[3] Respondent?s carpenter-foremanand Respondent?s safety coordinator testified that the men were working abovesoft backfilled dirt. The employees obtained safety belts immediately afterquestioning by the compliance officer, and they used them throughout completionof the operation.??????????? The Judge made a finding of fact that the employees wereworking at a height of twenty-five feet. Rejecting Respondent?s argument thatthe employees were not exposed to hazardous work conditions, he concluded thatRespondent had violated the standard. The Judge viewed the brevity of thefive-minute exposure as a factor to be weighed in assessing a penalty but notas a defense to the violation.??????????? On review, Respondent continues to argue that itsemployees were not exposed to hazardous work conditions. It contends that theSecretary failed to establish exposure to a hazard because, (1) the total timefor completion of the work was only a few minutes, (2) the surface above whichthe employees were working was soft fill dirt, and (3) the work was performedat a height of approximately ten feet rather than the twenty-five foot heightalleged in the complaint.??????????? As to the Judge?s finding with respect to the disputedheight, we see no reason to reevaluate such a finding where, as here, it has afirm basis in the record. See CTM, Inc., 77 OSAHRC 136\/C12, 5 BNA OSHC1578, 1977 78 CCH OSHD para. 21,957 (No. 13008, 1977).Further, we conclude that a fall of twenty-five feet is hazardous regardless ofthe type of surface beneath the workers. The nature of the surface would affectthe type of injury which would likely result from a fall, but here theviolation is alleged as nonserious. Compare Schiavone Construction Co.,77 OSAHRC 78\/A2, 5 BNA OSHC 1385, 1977 78 CCH OSHD para.21,815 (No. 12767, 1977). While both the brevity of the exposure and the natureof the underlying surface affect the gravity of the violation and hence thepenalty assessment under Section 17(j) of the Act, neither of these factors issufficient to negate the existence of the violation.??????????? Respondent also argues that its policy of providingsafety belts but leaving their use to the discretion of its employees issufficient to comply with the standard. This Commission has previously rejecteda similar argument. The decision of whether fall protection is necessary cannotbe left to the unbridled discretion of the foreman or employees on the jobsite.Rather, such a decision is controlled by the standard of conduct of areasonably prudent employer in the circumstances. See B & B Insulation,Inc., 77 OSAHRC 49\/A2, 5 BNA OSHC 1265, 1977 78 CCH OSHD para.21,747 (No. 9985, 1977). We note that Respondent itself recognized that safetybelts should be used at heights of 25 feet and above.??????????? Finally, Respondent argues that a statement made byopposing counsel during closing argument describing the elevation as ten feetconstitutes a binding admission of the height now in dispute. We disagree. Anattorney?s statement during the course of trial does not conclusively bind hisclient unless the statement can be properly characterized as a judicialadmission. Formal judicial admissions are to be distinguished from mereevidential admissions. See Taylor v. Allis-Chalmers Manufacturing Co.,320 F. Supp. 1381 (E.D. Pa. 1969), aff?d per curiam 436 F.2d 416 (3rdCir. 1970); See also McCormick, Evidence 8267, at 643 644 (2d ed. 1972). In RhoadesInc. v. United Airlines Inc., 340 F.2d 481 (3rd Cir. 1965), the Court notedthat a formal judicial admission exists only where there is no doubt orambiguity regarding counsel?s statement.[4] In our case, however, thestatement which Respondent characterizes as an admission was an apparentmisstatement contained in a hasty recapitulation of the evidence. Moreover, thestatement was directly contradicted by the testimony of the Secretary?s ownwitness with regard to the disputed height. On these facts, we conclude thatthe statement falls short of the formality and conclusiveness necessary toconstitute a binding judicial admission.??????????? Accordingly, the Judge?s decision is hereby affirmed.?FOR THE COMMISSION:?Ray H. Darling, Jr.Acting Executive Secretary\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11340 AMERICAN BECHTEL, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 4, 1975APPEARANCES:Ronald G. Whiting,Esquire, Office of Henry C. Mahlman, AssociateRegional Solicitor, U.S. Department of Labor,15019 FederalBuilding, 1961 Stout Street, Denver,Colorado, for theComplainant,\u00a0James O. Ball,Esquire, and Jeff Lee, Esquire, Counsel, Legal Department, Fifty Beale Street,San Francisco, California, for the Respondent.?DECISIONAND ORDERMorris, Judge, OSAHRC.??????????? Citations against respondent allege violations of theOccupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter calledthe Act). Complainant alleges that while constructing a plant respondentviolated Section 654(a)(2) of the Act in failing to comply with occupationalsafety and health standards. Without conceding the existence of a hazard or thevalidity of any standard, respondent stipulated that if a violation occurredits employees were exposed (Tr. 48).??????????? Citation 3 alleges a serious violation of 29 CFR1926.750(b)(1)(ii) and proposes a civil penalty of $800. During the trial theJudge amended citation 3, in accordance with Rule 15(b), F.R.C.P., to allege aviolation of 29 CFR 1926.28(a). The parties did not object to the amendment(Tr. 212?214).??????????? The citation reads:On November 6,1974 while welding on the bottom structure section of the coahopper, employee was permitted to work at a height which could have resulted ina potential fall distance in excess of 25 feet. Scaffolds were not used norwere safety nets installed and maintained.???????????? The standards read:? 1926.750Flooring requirements.(b) Temporaryflooring-skeleton steel construction in tiered buildings. (1)(ii) On buildingsor structures not adaptable to temporary floors, and where scaffolds are notused, safety nets shall be installed and maintained whenever the potential falldistance exceeds two stories or 25 feet. The nets shall be hung with sufficientclearance to prevent contacts with the surface of structures below.?? 1926.28 Personalprotective equipment.(a) The employeris responsible for requiring the wearing of appropriate personal protectiveequipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for using such equipment to reduce the hazardsto the employees.???????????? Complainant?s evidence: A worker did not tie off hislanyard and no other safety devices could prevent a potential fall of 25 feeton this steel erection project. (Tr. 21?24, 27, 31; compl?s.ex. 1).??????????? Respondent?s evidence: The exposed worker had onlymomentarily arrived at the work station carrying an oxyacetylene torch (Tr.113?115). A co-worker, the first to arrive at the work station, had alreadytied off. and was taking the torch from the exposed worker (Tr. 116?117, compl?s. ex. 1). There was no opportunity for the exposedworker to tie off his six foot line (Tr. 115?116, 119?120, 124?125). A workercannot tie off while moving across the iron or while holding a torch in onehand (Tr. 125?126).??????????? Iron bracking interlacedbeneath the workers rendered safety nets impractical (Tr. 133, 139, 192; compl?s ex. 1; resp?s. ex. A & B).??????????? The facts establish the defense of impossibility ofperformance. The exposed employee moved 90 feet across an iron beam (Tr. 225),momentarily arrived at the work station, and was passing equipment to hisco-worker. He could not tie off without causing a greater danger to himself. Heis not required to do so in this circumstance. Secretary v. American Bridgeand Iron 12 OSAHRC 22 (1974). ??????????? Complainant?s evidence advocating safety nets lackspersuasiveness and fails in view of contradictory evidence (Tr. 28, 133, 139,192; compl?s. ex. 1; resp?s. ex. A & B).??????????? Citation 4 alleges a serious violation of 29 CFR1926.752(k) and proposes a civil penalty of $800. The citation reads:??????????? On November 6, 1974, while welding in the Boiler #5 area,employee was permitted to work from a float scaffold approximately 12 feet fromthe floor level, and he was not provided a safety belt in accordance with 29CFR 1926.104.??????????? The standard reads:? 1926.752Bolting, riveting fitting up, and plumbing-up.(a) Generalrequirements.(k) Employeesshall be proved with safety belts in accordance with ? 1926.104 when they areworking on float scaffolds.\u00a0??????????? Complainant?s evidence: A worker did not wear a safetybelt while welding on a twelve foot high float scaffold (Tr. 32, 33, 37, 145; compl?s. ex. 2).??????????? Respondent?s evidence: The worker ascended to hisworkplace to remove his tools and let the scaffold down; while there he decidedto make ?one or two additional passes? on his work. This effort took 2 or 3minutes: his safety belt remained in his tool box (Tr. 35?36, 144?145, 147,149).??????????? Under 29 U.S.C. 666(j) a serious violation is deemed toexist unless the employer did not, and could not with exercise of reasonablediligence know of the presence of the violation. The facts here do notestablish actual or constructive knowledge by respondent of the violation. Secretaryv. North American Rockwell Corporation, 16 OSAHRC 444 (1975).??????????? Citation 5, item 1 alleges a nonserious violation of 29CFR 1910.22(d)(1) and proposes no civil penalty. The citation reads:Maintenance shopand general warehouse: Overhead area used for storage was not capacity ratednor placarded as to clearly identify their capacity.???????????? The standard reads:? 1910.22 Generalrequirements.(d) Floor loadingprotection. (1) In every building or other structure, or part thereof, used formercantile, business, industrial, or storage purposes, the loads approved bythe building official shall be marked on plates of approved design which shallbe supplied and securely affixed by the owner of the building, or his dulyauthorized agent, in a conspicuous place in each space to which they relate.Such plates shall not be removed or defaced but, if lost, removed, or defaced,shall be replaced by the owner or his agent. ???????????? The evidence: In a storage area above an office and toolcrib, respondent stored various light-weight items (Tr. 39, 40?42, 46). Thestorage area did not have a placard showing rating capacity (Tr. 39).??????????? In Secretary v. Deering Milliken 18 OSAHRC ????Docket Number 8960 (final order May 21, 1975) Judge John J. Larkin vacated acitation based on 29 CFR 1910.22(d)(1) for the reason thatthe standard lacks ascertainable criteria. It nowhere defines the key term of?building official? or ?plates of approved design?. In Secretary v. DeeringMilliken, Inc. (Gainsville Plant) 18 OSAHRC ????,Docket Number 11109 (final order June 4, 1975) Judge John S. Patton reachedessentially the same conclusion. The foregoing cases succinctly point out thedefects in the cited standard.??????????? Citation 5, item 2 alleges a violation of 29 CFR1910.25(d)(2)(x)(1) and proposes a civil penalty of $65.??????????? The citation reads:New change housearea: A painter was using two step ladders as legs for a scaffold, with a2\u2033 x 12\u2033 plank suspended between them. This practice is contrary tothe step ladders? intended purpose.???????????? The standard reads:? 1910.25 Portablewood ladders.(d) Care and useof ladders?(2) Use. Thefollowing safety precautions shall be observed in connection with the use ofladders:(xi) Ladders shallnot be used as guys, braces, or shids, or for otherthan their intended purposes.???????????? Complainant?s evidence: Two 7 foot ?A? type step ladders,6 to 10 feet apart, formed the base for a 2 x 12 plank suspended between them(Tr. 49051, 57, 58). This use was not customary in the industry (Tr. 57). Thehazard of a 56 inch fall exists if one falls or steps off the plank (Tr. 50).At less than 48 inches (as respondent contended) two sawhorses could beutilized (Tr. 52?53). In the opinion of the compliance officer any use notconsisting of work directly off of the step ladder was not an ?intended use?(Tr. 57).??????????? Respondent?s evidence: The positioning of the 36 inchhigh plank was proper, safer than a ladder, and used by most painters (Tr. 73,75, 108, 172, 203?204).??????????? Respondent challenges the standard as unconstitutionallyvague; further, it asserts complainant did not carry his burden of proof.??????????? Leading cases construing a safety standard are: RyderTruck Lines, Inc. v. Brennan 497 F.2d 230 (5th Cir.1974) and McLeanTrucking Company v. OSAHRC and Secretary of Labor, 503 F.2d 8 (4thCir.1974). The respective appellate courts outline the factors to be consideredin determining the validity of a standard challenged for vagueness; these are:??????????? ?that the standard implements remedial civil legislationin contradistinction to criminal legislation;??????????? ?that the standard should be considered in the light ofits application rather than on its face since the rights guaranteed by theFirst Amendment are not even remotely involved;??????????? ?that the standard will be approved if drafted with asmuch exactitude as possible in light of the myriad of conceivable situationswhich could arise and which would be capable of causing injury;??????????? ?that inherent in the regulatory standard is an externaland objective test, namely whether or not a reasonable person would be affordeda reasonable warning of the proscribed conduct in light of commonunderstandings and practices.??????????? In this case the constitutional issue of vagueness neednot be decided. Complainant failed to sustain his burden of proof. Thecompliance officer asserted that any use of the ladder except directly workingtherefrom was improper. On the other hand, respondent?s painters enshrined thisusage over many years.??????????? Citation 5, items 3 and 15 allege violations of 29 CFR1910.106(e)(2)(iv)(a) and 29 CFR 1926.350(a)(9) and propose no civil penalty.After commencement of the trial complainant moved to vacate these items. Thenotice of hearing was posted and no person objected to the motions (Tr. 6?7).??????????? Citation5, items 4 through 12 all involve the spray paint area and allege as follows: Item Number \u00a0 \u00a0 Standard Allegedly Violated \u00a0 \u00a0 Description of Alleged Violation \u00a0 \u00a0 4 \u00a0 \u00a0 29 CFR 1910.106(e)(6)(ii) \u00a0 \u00a0 Paint spray area: 55 gallon drums of flammable paint thinner were not bonded and grounded when transferring solution to safety cans. (No proposed penalty). \u00a0 \u00a0 5 \u00a0 \u00a0 29 CFR 1910.107(b)(1) \u00a0 \u00a0 The paint spray area was not constructed of a substantial noncombustible material and had no exhaust system which would sweep air currents towards the exhaust outlet. ($65 proposed penalty.) \u00a0 \u00a0 6 \u00a0 \u00a0 29 CFR 1910.107(b)(2) \u00a0 \u00a0 Spray paint area: The interior surfaces were not smooth and continuous without edges and otherwise not designed to prevent pocketing of residues and to facilitate cleaning. (No proposed penalty). \u00a0 \u00a0 7 \u00a0 \u00a0 29 CFR 1910.107(c)(2) \u00a0 \u00a0 Spray paint area: An open flame forced air heater was located to the left of the entrance to spray paint area and within 20 feet of the exposure of flammable vapors and mists. ($45 proposed penalty). \u00a0 \u00a0 8 \u00a0 \u00a0 29 CFR 1910.107(c)(6) \u00a0 \u00a0 Spray paint area: Electrical wiring and electrical paint mixer located in spraying area was not explosion-proof type approved for Class 1, Group D locations and did not conform to the provisions for Class 1, Division 1 hazardous locations. ($45 proposed penalty). \u00a0 \u00a0 9 \u00a0 \u00a0 29 CFR 1910.107(d)(2) \u00a0 \u00a0 Spray paint area: This area did not have mechanical ventilation which would remove flammable vapors and mists to a safe location and confine and control combustible residues. ($45 proposed penalty) \u00a0 \u00a0 10 \u00a0 \u00a0 29 CFR 1910.107(e)(2) \u00a0 \u00a0 The quantity of flammable or combustible liquids kept in the vicinity of the spraying operation exceeded supply need for a one day or one shift operation. (No penalty) \u00a0 \u00a0 11 \u00a0 \u00a0 29 CFR 1910.107(g)(2) \u00a0 \u00a0 Spray paint area: Walls were not kept free from excessive accumulation of residues. (No peanlty) \u00a0 \u00a0 12 \u00a0 \u00a0 29 CFR 1910.107(g)(7) \u00a0 \u00a0 The required ?NO SMOKING? signs in large letters on contrasting colors background was not posted at the paint spray area and paint storage area. (No penalty) \u00a0 \u00a0 \u00a0??????????? The standards read:? 1910.106Flammable and combustible liquids.(e) Industrial plants?(6)Sources of ignition.(ii) Grounding.Class I liquids shall not be dispensed into containers unless the nozzle andcontainer are electrically interconnected. Where the metallic floorplate onwhich the container stands while filling is electrically connected to the fillstem or where the fill stem is bonded to the container during fillingoperations by means of a bond wire, the provisions of this section shall bedeemed to have been compiled with.\u00a0? 1910.107 Sprayfinishing using flammable and combustible materials.(b) Spraybooths?(1) Construction. Spray booths shall be substantially constructed ofsteel, securely and rigidly supported, or of concrete or masonry except thataluminum or other substantial noncombustible material may be used for intermittentor low volume spraying. Spray booths shall be designed to sweep air currentstoward the exhaust outlet.?(2) Interiors. Theinterior surfaces of spray booths shall be smooth and continuous without edgesand otherwise designed to prevent pocketing of residues and facilitate cleaningand washing without injury.?(c) Electrical andother sources of ignition?(1) Conformance. All electrical equipment, openflames and other.?(2) Minimumseparation. There shall be no open flame or spark producing equipment in anyspraying area nor within 20 feet thereof, unless separated by a partition.?(6) Wiring typeapproved. Electrical wiring and equipment not subject to deposits ofcombustible residues but located in a spraying area as herein defined shall beof explosion-proof type approved for Class I, group D locations and shallotherwise conform to the provisions of subpart S of this part, for Class I,Division 1, Hazardous locations. Electrical wiring, motors, and other equipmentoutside of but within twenty (20) feet of any spraying area, and not separatedtherefrom by partitions, shall not produce sparks under normal operatingconditions and shall otherwise conform to the provisions of subpart S of thispart for Class I, Division 2 Hazardous Locations.?(d)Ventilation?(1) Conformance.(2) General. Allspraying areas shall be provided with mechanical ventilation adequate to removeflammable vapors, mists, or powders to a safe location and to confine andcontrol combustible residues so that life is not endangered. Mechanical ventialation shall be kept in operation at all times whilespraying operations are being conducted and for a sufficient time thereafter toallow vapors from drying coated articles and drying finishing material residueto be exhausted.?(e) Flammable andcombustible liquids-storage and handling.?(2) Quantity. Thequantity of flammable or combustible liquids kept in the vicinity of sprayingoperations shall be the minimum required for operations and should ordinarilynot exceed a supply for 1 day or one shift, bulk storage of portable containersof flammable or combustible liquids shall be in a separate constructed buildingdetached from other important buildings or cut off in a standard manner.?(g) Operations andmaintenance??(2) Cleaning. Allspraying areas shall be kept as free from the accumulation of deposits ofcombustible residues as practical, with cleaning conducted daily if necessary.Scrapers, spuds, or other such tools used for cleaning purposes shall be of nonsparking material.?(7) ?No Smoking?signs. ?No smoking? signs in large letters on contrasting color backgroundshall be conspicuously posted at all spraying areas and paint storage rooms.???????????? The evidence: Iron beams are spray painted withcombustible enamel paint. Any overspray could not be cleaned from the visque plastic sidewalls. Such walls would tear (Tr. 60?62,64?65, 86?87). An open flame heater inside the entrance warmed the structure(Tr. 65, 66, 82?83). Vapors could enter the heater. No mechanical system removedany flammable vapors (Tr. 62?63, 68).??????????? A worker mixed the contents of a five gallon can with a non class rated, non explosionproof, electric drill (Tr. 66, 83). The mixer plugged into a non-explosionproof outlet just two and one half inches from the spray area (Tr. 67?68, 90).Fifty gallons of paint stored in a cubicle two feet from the spray areaexceeded normal usage estimated by the parties at 5 to 25 gallons (Tr. 70).??????????? The compliance officer did not see any ?No Smoking? signsbut respondent?s evidence indicates such signs aboundthe area (Tr. 87, 110, 169, 202).??????????? Respondent tested the painting area with an explosionmeter; the highest reading was in the satisfactory range (Tr. 201?202).??????????? Citation 5 consisting of those items relating to thespraying area fails; Complainant did not prove the enclosed building was aspraying area as defined by 29 CFR 1910.107(a)(2). The definition reads:Spraying area: Anyarea in which dangerous quantities of flammable vapors or mists, or combustibleresidues, dusts, or deposits are present due to the operation of the sprayingprocess.???????????? This paint spray structure falls far short of being anarchitectural triumph, but complainant with the burden of proof must establishit to be a spraying area as defined by his own standards.??????????? Citation 5, item 14 alleges a nonserious violation of 29CFR 1926.28(a) and proposes a civil penalty of $110.??????????? The citation reads:Two carpentersworking on the coal unloading pit, were over 25 feet from the ground or othersurfaces while tightening whaler bolts which had become loosened during aconcrete pouring operation. They were without safety life lines and safetybelts in a situation calling for\/or requiring the use of such personalprotective equipment.???????????? The standard is set forth in citation 3, supra.??????????? The evidence: When a whaler bolt came loose during aconcrete pour one of the workers attempted to tighten it. The worker had nosafety line working twenty five feet above ground level (Tr. 34, 94?95, 98).The foreman directed the employee to undertake this five minute project (Tr.177, 183).??????????? Respondent challenges that an exposure to a hazardoccurred because the work was performed in a few minutes at a height of tenfeet (as respondent claims) over soft backfilled dirt. These contentions arewithout merit: A height of ten feet is sufficient to invoke the use of personalprotective equipment. A bulldozer was then moving the soft dirt into thebackfill; its steel components hardly provide a soft landing place. Theexposure of five minutes relates to the penalty and not to the fact of aviolation. In determining a civil penalty gravity should generally be affordedthe greatest consideration. Secretary v. Baltz Brothers Packing Company,2 OSAHRC 384 (1973). Considering all of the statutory criteria the proposedcivil penalty of $110 is appropriate.FINDINGSOF FACT??????????? 1. Respondent?s answer did not plead to the allegationsof coverage contained in the complaint hence such allegations are deemedadmitted under Commission Rule 33(b)(2). (Complaint, Answer)??????????? 2. The exposed worker 25 feet above ground level had noopportunity to tie off his lanyard.??????????? 3. Safety nets were not practical.??????????? 4. The welder on the float scaffold was not observed bysupervisory personell in the two or three minutes heworked without an attached safety belt.??????????? 5. Complainant failed to carry his burden of proof toestablish the intended use of ladders.??????????? 6. Complainant moved to vacate citation 5, items 3 and15.??????????? 7. Complainant failed to prove the area where paintspraying was conducted was a spraying area as defined by 29 CFR 1910.107(a)(2).??????????? 8. An employee without an attached life line tightened awhaler bolt working 25 feet above ground level.CONCLUSIONS??????????? 1. Respondent is subject to the Act (Facts 1).??????????? 2. Respondent did not violate 29 CFR 1926.750(b)(1)(ii)or 29 CFR 1926.28(a) and citation 3 and the proposed penalty of $800 should bevacated (Facts 2, 3).??????????? 3. Respondent did not violate 29 CFR 1926.752(k) andcitation 4 and the proposed penalty of $800 should be vacated (Facts 4).??????????? 4. Respondent did not violate 29 CFR 1910.22(d)(1) as thestandard lacks ascertainable criteria; citation 5, item 1 and the proposedcivil penalty of ?None? should be vacated.??????????? 5. Respondent did not violate 29 CFR 1910.25(d)(2)(x)(1)and citation 5, item 2 and the proposed civil penalty of $65 should be vacated(Facts 5).??????????? 6. Citation 5, items 3 and 15 and the civil penalties?none? on the motions of complainant should be vacated (Facts 6).??????????? 7. Complainant failed to prove a violation of the varioussubparts of 1910.106 and 1910.107 and citation 5, items 4 through 12 should bevacated together with all proposed civil penalties therefor (Facts 7).??????????? 8. Respondent violated 29 CFR 1926.28(a) and citation 5,item 14 and the proposed civil penalty of $110 should be affirmed (Facts 8).ORDER??????????? Based on the foregoing findings of fact and conclusionsof law it is hereby ORDERED and ADJUDGED:??????????? 1. Citation 3 and the proposed civil penalty of $800 arevacated.??????????? 2. Citation 4 and the proposed civil penalty of $800 arevacated.??????????? 3. Citation 5 items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,12, and 15 are vacated together with all proposed civil penalties therefor.??????????? 4. Citation 5 item 14 and the proposed civil penalty of$110 are affirmed.?Soordered in the City and County of Denver, Colorado.?John J. MorrisJudge, OSAHRC\u00a0[1] 29 U.S.C. 651 et seq.[2] The standard provides:The employer is responsible forrequiring the wearing of appropriate personal protective equipment in alloperations where there is an exposure to hazardous conditions or where thispart indicates the need for using such equipment to reduce the hazards to theemployees.Initially,Respondent received two serious citations and one non-serious citationcontaining thirteen items. The Judge vacated all of the allegations except forthe nonserious personal protective equipment violation. Neither partypetitioned for review of the Judge?s decision. Former Commissioner Morandirected that the Judge?s decision reviewed, but did not state specificissue(s) for adjudication. Respondent filed a brief on review in which it takesexception to the Judge?s affirmance of the 28(a) violation. The Secretary hastaken no exception to the Judge?s decision. Consistent with our PolicyStatement at 41 Fed. Reg. 53015 (Dec. 3, 1976), only the Judge?s disposition ofthe 1926.28(a) allegation is currently before us.[3] Respondent?s foreman testified that eachemployee is provided with safety belts, but that their use is not mandatory atelevations below twenty-five feet.[4] Accord Berner v. British CommonwealthPacific Airlines, Ltd.,346 F.2d 532 (2d Cir. 1965) cert. den. 382 U.S. 983, in which the Courtrejected plaintiff?s argument that the defendant should have been bound by thestatement of defendant?s counsel during opening argument. Although the Courtagreed that defendant?s counsel had ?virtually conceded that the burden ofproof on complete immunity had not been met,? a jury verdict awarding nodamages was allowed to stand since counsel?s statement lacked sufficientformality or conclusiveness to constitute a judicial admission. Id. at542. “