“SECRETARY OF LABOR,Complainant,v.CENTURY STEEL ERECTORS, INC.,Respondent.OSHRC Docket No. 87-1348_ORDER_This case was remanded to the Commission by the United States Court ofAppeals for the D.C. Circuit. _Century Steel Erectors, Inc. v. Secretaryof Labor,_ 888 F.2d 1399 (D.C. Cir. 1989), _rev’g_ _Century SteelErectors, Inc., _13 BNA OSHC 1869, 1988 CCH OSHD ? 28,294 (No. 87-1348,1988) (unreviewed decision of Administrative Law Judge). The courtreversed a decision that had found Century Steel Erectors in violationof 29 C.F.R. 1926.105(a) [[1]] and remanded the case \”for furtherconsideration.\”Century was cited for violating section 1926.105(a) because it did notrequire its employees cutting tack welds to use safety belts andtied-off lanyards even though they were exposed to a 40-foot fall. Thejudge affirmed a violation of section 1926.105(a). He found that,although the use safety nets would have been impractical, Century’semployees could have been protected by securing their safety beltlanyards to a secure object or safety line. The judge held thatCentury’s claim that it was the custom and practice in the industry notto tie off while cutting welds was no defense to a violation of section1926.105(a).The court accepted the judge’s finding that the use of safety nets wasimpractical. Furthermore, the court held that the Secretary has theburden of establishing that the use of safety belts is practical. Oncethe Secretary has presented a prima facia case, the court held, theemployer has the opportunity to present evidence that the use of safetybelts is not practical, including evidence of the industry’s custom andand practice of not using safety belts during the cited operation. Thecourt held that judge should have considered the evidence introduced byCentury on the custom and practice in the steel erection industry, andit remanded the case for a determination of the practicality of usingsafety belts during the cutting of tack welds.Accordingly, we remand this case to the Administrative Law Judge for himto make the necessary findings consistent with the court’s order and toissue an order disposing of the section 1926.105(a) citation.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDATED: May 24, 1990————————————————————————SECRETARY OF LABOR,Complainant,v.CENTURY STEEL ERECTORS, INC.,Respondent.Docket No. 87-1348APPEARANCES:COVETTE ROONEY, EsquireU. S. Department of LaborOffice of the SolicitorPhiladelphia, PennsylvaniaFor the ComplainantRICHARD R. NELSON II, EsquireAlder Cohen & Grigsby, P. C.Pittsburgh, PennsylvaniaFor the Respondent_DECISION AND ORDER_Sommer, Judge:This is a proceeding under section 10 (c) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 651-78 (\”the Act\”), to review citationsand a notification of proposed penalty issued by the Secretary of Labor(\”Complainant\”) to Century Steel Erectors (\”Respondent\”) on July 28,1987. A hearing was held in Pittsburgh, Pennsylvania. Both parties wererepresented by counsel who filed post-hearing briefs. No jurisdictionalissues are in dispute, Respondent having admitted the jurisdictionalallegations of the complaint. There are two citation items inissue–items 1a and 2 of citation no. 2.Citation no. 1 alleged that Respondent had committed serious violationsof 29 C.F.R. ? 1926.200(g) (1) (item 1), 29 C.F.R. ? 1926.350(b)(1)(item 2), and 29 C.F.R. ? 1926.450(a)(1) (item 3). At the hearing theparties agreed to settle these items by vacating item 1, affirming item2 and assessing a penalty of $250, and amending item 3 to non-seriousand assessing a penalty of $200.Item 1a of citation no. 2 alleged a willful violation of section 5 (a)(1) of the Act or, in the alternative, 29 C.F.R. ? 1926.28(a) forfailure to protect employees from a fall hazard by the use of safetybelts and lanyards or other means. The complaint amended this allegationto allege a violation of 29 C.F.R. ? 1926.105(a) in lieu of section5(a)(1) and 29 C.F.R. ? 1926.28(a). Items 1b-1d alleged violations of 29C.F.R. ? 1926.20(b)(1)1 1926.20(b)(2), and 1926.21(b)(2). Theseallegations were dismissed with prejudice on Complainant’s pretrialmotion, leaving only the allegation of violation of 29 C.F.R. ?1926.105(a) in issue under citation no. 2, item 1. Another citation item(item 1 of citation 3), alleging a non-serious violation of 29 C.F.R. ?1926.51(c)(2), also was dismissed with prejudice prior to the hearing onComplainant’s motion.Item 2 of citation 2 alleged a willful violation of 29 C.F.R. ?1926.416(a)(1) in that Respondent permitted employees to work in closeproximity to energized high-voltage lines without taking adequateprecautions to protect employees from the hazard of severe electricshock. Complainant proposed a penalty of $10,000 for this allegedviolation, and a penalty of $9000 was proposed for the willfulviolations alleged in item 1 of citation 2._BACKGROUND _Respondent is a steel erection contractor with offices at 1125 CampHollow Road, West Mifflin, Pennsylvania. It was a subcontractor toTrumbull Corporation on a construction site at the junction of thePennsylvania Turnpike and Route 28 in Harmarville, Pennsylvania. (T 11,411, ex. R9). Trumbull was engaged in repairing the bridge which carriedthe Turnpike over Route 28 and adjoining railroad tracks. (T 423).Pursuant to its contract, Respondent had erected a scaffold to support acatch platform for protecting the highway, the ramp from the highway tothe turnpike, and the railroad tracks from falling debris. (T 58, 376,437). The catch platform was built in two separate sections, one overthe roadway and the other over the railroad tracks. The section over therailroad tracks was built higher in order to clear some power lines thatran alongside the tracks. (T 443-44). At the time in question, therepair work had been completed, the catch platform had been removed, andRespondent was in the process of dismantling the scaffold.Complainant’s compliance officer inspected Respondent’s worksite on June17, 1987, in response to a fatal accident the previous day when anemployee of Respondent fell approximately 40 feet from the top of thescaffold. Complainant alleges that Respondent’s employees were not usingfall protection and that they were working too close to energized powerlines._DISCUSSION __Alleged violation of 29 C.F.R. ? 1926.105(a) [[1]] –item __1a of willful citation no. 2_The scaffold on which Respondent’s employees were working consisted ofseveral parallel sections of scaffolding. An H-beam, 14 inches wide, ranacross the top of each section. These beams in turn supportedcrossbeams, referred to as bar joists, which extended between thescaffold sections, connecting one scaffold section to another. The catchplatform, which had previously been removed, had consisted of metaldecking laid across the bar joists. (T 16-17, 442, 5110 ex. G1, G2, R9).On the day the accident occurred, the bar joists were being detachedfrom the scaffold structure. on the following day, when the inspectionwas conducted, removal of the bar joists was being completed, and someof Respondent’s employees were preparing to remove the supportingH-beams. (T 521-26, 536-39). The deceased employee, William Spieler, wasa member of a work crew that was using cutting torches to remove thetack welds holding the bar joists in place. Although the record does notshow whether Spieler was wearing a safety belt at the time he fell,there is no dispute that Spieler was not tied off (T 63-64, 533).When compliance officer William Draper arrived at the site, work wasbeing performed on scaffold sections \”D\” and \”E,\” the latter being thescaffold from which Spieler had fallen. Two employees were cutting weldsaway from bar joists on scaffold \”D,\” while two others were sittingstraddling an H-beam waiting to connect it to the sling of the cranethat was to lower the beam to the ground. (T 28-31, 33, 39, 101-02, 521-24; ex. G2(c)-(k)). Three of the four employees were wearing safetybelts with lanyards that they could use to tie off; the fourth employeehad a belt but no lanyard. Draper felt that safety nets could not havebeen hung and would not have been appropriate but told foreman RonaldSchagle that the employees should be tied off. [[2]] Schagle theninstructed them to do so, except for the one employee who did not evenhave a lanyard. (T 39-41, 51). Although the record is not explicit, itappears that the employees who tied off did so by looping their lanyardsaround one of the beams (T 50; ex. G2(j)).Schagle did not deny that he instructed the employees to tie off buttestified that he did so to placate Draper and because the employees hadstopped working when Draper appeared. Schagle felt that if employeeswere simply going to sit on the beams doing nothing they might as welltie off. He then changed his mind and directed the workers to come downsince they were not working. (T 519).Respondent’s written safety rules require that \”when working in highplaces or where there is a chance of falling, employees must use safetydevices\” and that \”workers must be tied off when working in a stationaryposition such as grinding, welding, torch burning …\” (ex. R1).However, ironworkers are not required to use safety belts while removingtack welds and customarily do not tie off during such work because it isconsidered to be mobile work. A tack weld can be removed in 15 to 40seconds; thus, employees move quickly from one. weld to another (T 173,390-92, 485-86). The Harmarville job in particular required a highdegree of mobility because the welds on each end of the joists werebeing removed simultaneously by two crews. (T 515, 526).Respondent’s foreman Beton also testified that it would be morehazardous to use a safety belt during mobile work because the lanyardcould get snagged. (T 391). Superintendent Weber agreed that tying offwould be more hazardous but did not explain why. (T 476).The record also shows that Respondent has a well-established safetyprogram. Its safety manual is printed in the form of a small bookletthat is distributed to all employees. Regular safety meetings are heldat jobsites, and a written record is made of such meetings. Respondent’srule that employees must tie off while stationary is frequentlymentioned at these meetings. Foremen and superintendents have theresponsibility for enforcing the safety rules, and foreman Schagletestified that he has reprimanded employees for not tying off whererequired. (T 424-26, 542). Jobs are planned in advance, includingon-site visits by superintendent Weber to determine how the work may beperformed safely. Respondent’s safety director also makes field visits,a report of which is given to Weber and the on-site foreman. Exhibit R6includes a report of the safety director’s visit to the Harmarvilleworksite in March 1987, which notes that most employees were tied offand the failure of two employees to wear their belts was correctedimmediately. Respondent’s insurance carrier, Liberty Mutual, alsoconducts inspections which include discussions with foremen andemployees. Reports of inspections by Liberty Mutual of the Harmarvillesite in September and October 1986 were admitted as exhibit R8. Thefirst report recommends that \”ironworkers working in a stationaryposition such as welding or burning\” should be tied off. Thisrecommendation refers to welding that requires a substantial amount oftime in one location and does not include tack welding. The secondreport notes that \”the practice of tying off ironworkers has beenstressed at a number of safety talks held on the job.\” Additional safetymaterial maintained by Respondent consists of safety memos that aredistributed to employees to keep them abreast of company safety policyand a daily diary of each major job, in which safety notations arelogged. (T 424-36, 480-81).Respondent is charged with a violation of 29 C.F.R ? 1926.105(a), whichrequires that safety nets be used where the other protective devicesenumerated are \”impractical.\” While the term \”impractical \” isambiguous, _Brennan v. Southern Contractor Service,_ 492 F.2d 498 (5thCir. 1974), both the Commission and the courts have held that thestandard is violated if none of the devices listed, including safetybelts, are being used to protect employees from a fall of over 25 feet._Brock v. L.R. Willson & Sons, Inc., _773 F.2d 1377, 1383-84 (D.C. Cir.1985) (\”_Willson II_\”); _Southern Colorado Prestress Co. v. OSHRC, _586F.2d 1342 (10th Cir. 1978); _L.E. Myers Co., High Voltage systemsDivision,_ OSAHRC \/ 12 BNA OSHC 1609, 1614 & n.11, 1986-87 CCH OSHD ?27,476, pp. 35,604-05 & n.11 (No. 82-1137, 1986), _rev’d on othergrounds,_ 818 F.2d 1270 (6th Cir. 1987), _cert_. _denied,_ 108 S.Ct. 479(1987); _Morgan & Culpepper, Inc.,_ 81 OSAHRC 26\/A2, 9 BNA OSHC 1533,1538, 1981 CCH OSHD 11 ? 25,293, p. 31,298 (No. 9850, 1981), _aff’d,_676 F.2d 1065 (5th Cir. 1982).On the other hand, if one of the protective devices listed in thestandard is in fact being used at the worksite in question, the employerwill be in violation only if the device it is using does not provideadequate fall protection. _See L.E. Myers,_ _supra,_ 818 F.2d at 1276n.6 and cases cited therein. In _L.R. Willson & Sons. Inc. v. Donovan,_685 F.2d 664 (D.C. Cir. 1982) (_\”Willson I\”_), the court concluded thatthe standard does not require that fall protection be used at _all_times. The court vacated a citation under 29 C.F.R. ? 1926.105(a)because the Secretary failed to prove that safety belts were not usedduring a \”substantial portion\” of the workday.In the instant case, Respondent contends that item la must be vacatedbecause Complainant failed to prove that safety belts were not used fora substantial part of the day of the inspection. In fact, Respondentclaims that compliance officer Draper testified that after the employeestied off at his insistence, they remained tied off during the rest ofthat day. (Trial brief at 15-16, reply brief at 4). I find to the contrary.The violation was alleged to have occurred on June 16 (the day of thefatality) and June 17 (the day of the inspection). The work beingperformed consisted of the removal of bar joists on June 16 and theremoval of bar joists and H-beams on June 17. It is undisputed thatRespondent does not require its ironworkers to tie off during either ofthese operations and that they customarily do not tie off when doingsuch work. The evidence therefore supports a finding that Respondent’semployees were not using safety belts on June 16.on the following day, none of the ironworkers were tied off whencompliance officer Draper first observed them, and they did not tie offuntil he insisted that they do so. The record shows that Draper arrivedat the site at about 11 a.m., that the employees came down for theirlunch break after they initially had tied off, and that he then saw themtied off for about 15 minutes when they went back to work after lunch.Draper then left the worksite. (T 12, 29, 102). Contrary to Respondent’sargument, the evidence does not show that the employees remained tiedoff after Draper left. However, since I find that Respondent’s employeesdid not use safety belts during their normal work operations before theinspector arrived, I do not need to speculate on what actions theemployees may or may not have taken after Draper’s departure. Since theevidence shows that Respondent’s employees were exposed to a fall ofmore than 25 feet and that none of the devices listed in the standardwere used, Complainant has established a prima facie case. _SierraConstruction Corp., _78 OSAHRC 2\/E6, 6 BNA OSHC 1278, 1978 CCH OSHD ?22,506 (No. 136381, 1978).Respondent also contends that it would not have been practical for itsemployees to tie off during the work operations at issue here.Respondent emphasizes the need for mobility, the interference thatlanyards would cause, and the custom and practice of ironworkers not totie off in the circumstances here. Under _Dun-Par Engineered Form Co.,_OSAHRC \/ 12 BNA OSHC 1949, 1986-87 CCH OSHD ? 27,650 (No. 79-2553,1986), _rev’d on other grounds, _843 F.2d 1135 (8th Cir. 1988),Respondent can defend by showing that the use of tied-off safety beltswould have been infeasible. However, I find that it failed to establishits defense.With the exception of foreman Beton’s remark that a lanyard could getsnagged, Respondent’s evidence does not explain why the need formobility would preclude or render infeasible the use of safety belts. Ifind Beton’s testimony unpersuasive. The record does not show that Betonhad any knowledge of or experience with lanyards becoming snagged orthat he had any other basis on which to conclude that snagging was arealistic possibility. In addition, foreman Schagle described the normalprecautions that are taken to prevent a welding torch hose frominterfering with the work: the hose is pulled or draped over a joist toreduce slack, the hose is not laid in the immediate work area, andattempts are made to avoid tangles that could cause a tripping hazard.(T 544-45). The record does not show any reason why similar care couldnot be taken with respect to a lanyard. Furthermore, Schagle testifiedthat while tying off is not customary, employees are permitted to tieoff if they so choose, and in fact he conceded that safety belts couldhave been used for a majority of the workday. (T 530-31). Finally, since29 C.F.R. ? 1926.105(a) is a specific standard, compliance with industrycustom and practice is not a defense. _See Willson II_, _supra,_ 173F.2d at 1387.However, I do not find the violation willful as alleged. To establishthat a violation is willful, the Secretary must show that it wascommitted voluntarily with either an intentional disregard for therequirements of the Act or plain indifference to employee safety._E.g.,_ _Simplex Time Recorder Co.,_ OSAHRC \/ 12 BNA OSHC 1591, 1984-85CCH OSHD ? 27,456 (No. 82-12, 1985). The evidence fails to prove thatRespondent exhibited disregard for the fall protection requirements of29 C.F.R. ? 1926.105(a) or was indifferent to employee safety.Complainant contends that the violation is willful because Respondentallowed its employees to continue to work without using safety belts onthe day after Spieler fell. However, simple carelessness or lack ofdiligence in eliminating a violative condition does not in itselfestablish willfulness. _Asbestos Textile Co., _OSAHRC 12 BNA OSHC 1062,1984-85 CCH OSHD ? 27,101 (No. 79-3831, 1984). In a recent decision theFirst Circuit explained that willfulness requires an inquiry into theemployer’s state of mind:[A]n act may be \”willful\” if the offender shows \”indifference\” to therules; he need not be consciously aware that the conduct is forbidden atthe time he performs it, but his state of mind must be such that, if hewere informed of the rule, he would not care.Of course, there may be instances in which unsafe conduct is soegregious, so life-threatening, that the agency might apply an\”objective\” standard of willfulness, assuming its existence from theoffender’s knowledge of conditions even without direct evidence of itssubjective attitude toward the law. But, this is not such a case, Forexperienced workers on a flat roof (surrounded by a low parapet) to comewithin a foot or two of the edge under the eye of a monitor may beunsafe, but it is not so _obviously_ unsafe that the agency is requiredby law to assume a \”willful\” state of mind on the part of the employer._Brock v. Morello Brothers Construction, Inc.,_ 809 F.2d 161 (1st Cir.1987) (emphasis in original).The only evidence relating to Respondent’s state of mind is thetestimony of foreman Schagle that ironworkers would not consider walkingalong and sitting on 14-inch wide beams to be hazardous. Based onconversations with Spieler’s co-workers, Schagle also determined thatSpieler fell because he had simply \”blacked out.\” (T 522, 525, 534).This evidence fails to show that Respondent’s state of mind was such asto indicate conscious disregard or indifference to employee safety. Norcan I conclude that experienced ironworkers working off of beams 14inches wide presents such an egregious hazard that a willful state ofmind should be presumed in the absence of any other evidence.In addition, Respondent has a comprehensive general safety program,including a specific safety belt rule that it implements and enforce incertain work operations. Precautions Respondent took prior to theinspection at an earlier stage of the scaffold construction furtherdemonstrate that it was not unmindful of the need for fall protection.When the scaffold and catch platform was first erected, Respondentinstalled a cable and placed pieces of metal decking along the perimeterof the catch platform as fall protection. It also put a handrail along awalkway that connected the two sections of the catch platform. (T441-43, 474-75). After the perimeter protection was removed whenRespondent began disassembling the scaffold, it made safety belts andlanyards available to its employees for their use if they so desired. (T475, 530-31). Belts were in fact used when employees began dismantlinglarger sections of the scaffold after the bar joists and H-beams hadbeen taken down. (T 543). The fact that Respondent furnished but did notrequire full use of safety belts is not sufficient to show a willfulviolation; a good faith effort to comply with a standard or eliminate ahazard negates willfulness even if the employer’s efforts are notentirely effective or complete. _Mobil Oil Corp., _83 OSAHRC 47\/B6, 11BNA OSHC 1700, 1983-84 CCH OSHD ? 26,699 (No. 79-4802, 1983).The record evidence is sufficient, however, to show that the violationof 29 C.F.R. 1926.105(a) is serious under section 17(k) of the Act.Foreman Schagle knew that the deceased and other employees were not tiedoff (T 33), and there clearly was a substantial probability of death orserious injury. Consistent with the criteria set forth in section 17(j),and all the circumstances herein, a penalty of $1000 is assessed._Alleged violation of 29 C.F.R. ? 1926.416(a)(1) [[3]] — item__2 of willful citation no. 2_Scaffold section \”E,\” one of the sections that had supported the catchplatform over the railroad tracks, was adjacent and parallel to somepower lines that ran alongside the tracks. (T 16-17; ex. R9). The barjoists between scaffold sections \”D\” and \”E\” which were being removed atthe time of the inspection were perpendicular to, and crossed over, thepower lines. (Ex. C1 (a), R9).The lines were supported on poles with two crossarms. The lower crossarmcarried three phases (conductors) of 12kv (12,000 volts) each; therewere three 25kv lines on the upper crossarm. On the day of the accidentonly the top lines were energized. None of Respondent’s employees,including the deceased, ever actually came into contact with theenergized lines, which were not insulated. (T 159, 267).[[4]]Complainant’s theory is that the employees were working too close to thelines.The power lines were operated by West Penn Power Company (\”West Penn\”).Toward the end of January 1986, when West Penn’s line foreman reportedthat Respondent was building some scaffolding in the area, Campbell,West Penn’s senior engineering technician, went to the worksite to checkclearances. He decided to move the 25kv conductors as far from thescaffold as possible and to deenergize sections of two of the 12kvlines. One 25kv conductor was relocated from the scaffold side of thecrossarm to the other side of the pole, thus freeing space to move theoutermost conductor closer to the pole. Two 12kv lines were deenergizedbetween the poles closest to the work area; the remaining 12kv line wasleft energized to supply power for Respondent’s equipment at the site.(T 303-13).There is general agreement regarding the distances between the powerlines and the scaffold. For this decision, I will rely on the testimonyof West Penn’s personnel, who took actual measurements of thesedistances. The 12kv lines were approximately 27 feet above the groundand 5 feet, 4 inches below the 25kv lines. The top crossarm whichsupported the 25kv lines was 11.8 feet below the level of the barjoists. Laterally, the pole was 5.8 feet from the scaffold and theclosest 25kv insulator was 5.6 feet to the side of the scaffold. The12kv line that remained energized was on the opposite side of the pole,10 feet horizontally from the scaffold and 17 feet below the level ofthe joists. (248-55, 327-28, 356-57; ex. G3).[[5]]Since the top of the scaffold where the employees were working was aboveand to one side of the power line, the closest distance between thenearest 25kv conductor and the employees on the scaffold beams would bea diagonal line extending down from the top of the scaffold and over tothe conductor. While the record does not indicate the length of thisimaginary line, I take official notice that it would be approximately 13feet by mathematical computation.On or about February 11, Respondent was ready to put the first barjoists in place. Since this work required use of a crane, foreman Betonasked West Penn to deenergize the 25kv lines. West Penn cut the linesoff the next morning, February 12. On that day, while measuring for thebar joists, Beton accidentally dropped his metal measuring tape onto theone energized 12kv line. This incident did not cause any injuries. (T268-80, 402-03, 407-08; ex. G6). Shoemaker, West Penn’s claimrepresentative, estimated that Beton would have been no closer than 20feet to the energized line when taking his measurements. (T 295, 297).Although this line supplied power to the worksite, it was deenergized atthe time of the accident for reasons which the record does not indicate.(T 106-08).Respondent’s safety rule specifies minimum clearance distances fromunprotected or uncovered power lines. Ironworkers may not come within 8feet of 8.7-15kv lines and must keep 10 feet away from 15-35kv lines.This safety rule has been agreed on with the employees’ union, and itappears in Respondent’s union contract as well as Respondent’s safetymanual. (T 151-52; ex. R1, R3).The cited standard, 29 C.F.R. ? 1926.416(a)(1), does not specify anyminimum clearance distance from unguarded or uninsulated energizedcircuits. Rather, it limits the \”proximity\” of an employee to suchcircuits. While the term \”proximity\” is not vague, the standard doesrequire proof \”by objective means [that] employees are within reach of,and therefore may contact, an energized power circuit while they work.\”_Cleveland Consolidated, Inc.,_ OSAHRC\/, 13 BNA OSHC 1114, 1117, 1986-87CCH OSHD ? 27,829, p. 36,428 (No. 84-696, 1987).[[6]]It is clear from the record evidence that Respondent’s employees were inexcess of 10 feet from the power lines during the course of their workon top of the scaffolding. The scaffolding itself separated them fromthe conductors, and their work duties did not require that they work orgo below the top of the scaffolding. Nor were they using any tools withlong handles or other components capable of extending into the lines.The evidence fails to show any \”objective facts\” from which one couldreasonably conclude that the employees were within reach of the powerlines in the performance of their work duties.Nevertheless Complainant contends that there are some circumstancesindicating that employees could have come into contact with the powerlines. The Secretary refers to the incident when Beton dropped his tapeinto the lines as well as to the accident itself when Spieler hit someof the lines as he fell. However, Beton’s dropping of his tape wasclearly not part of his assigned work duties but an accident which, sofar as the record indicates, was totally unanticipated. The Act does notrequire an employer to prevent all accidents or to be an insurer of hisemployees’ safety._E.g,_ _Usery v. Kennecott Copper Corp.,_ 577 F.2d1113 (10th Cir. 1977). Similarly, Spieler’s fall was the result of thelack of fall protection at the worksite; the fact that he happened tostrike power lines as he fell does not show that he was working tooclose to them during his assigned duties. [[7]]Complainant also asserts that employees came overly close to the lineswhen they crossed the bar joists from scaffold section \”E\” to section\”D\” and when they left their work area by climbing down scaffold \”E.\”Inspector Draper testified that he observed one employee \”shimmying\”across a bar joist between sections \”D\” and \”E,\” thus crossing over thepower lines. (T 30). Since the 25kv lines were more than 11 feet belowthe bar joists, I find that an employee crossing over the lines on a barjoist would not be \”within reach of\” the lines under the rule of_Cleveland Consolidated, supra._There is a conflict in the testimony as to whether employees usedscaffold \”E\” as a means of egress from the work area. As previouslyindicated, the closest 25kv line was approximately five feet to the sideof scaffold \”E.\” According to Draper, the employee who did not have alanyard came down off the scaffolding by climbing down through scaffold\”E.\” Draper took a photograph of the employee inside the framework ofscaffold \”E.\” (T 51, 140-41; ex. G2(1)). Schagle insisted that theemployee Draper photographed was a \”ground man\” whose duties includedtagging bundles of joists coming off the structure, controlling taglines, landing material, and preparing material for loading onto trucks.Schagle was not sure why the employee was in the scaffold but speculatedthat he may have jumped up into the scaffold to free a guide cable thathad gotten hung up as it was dropped. Schagle said that this employeewas on the scaffold about 5 or 6 feet of f the ground when thephotograph was taken. (T 516-20, 543, 545-46). Draper estimated that theemployee was about 8 feet above the ground when photographed. (T 135).I find Schagle’s testimony on this issue to be more credible. Schagleidentified by name the employee shown in exhibit G2(1) and positivelystated that the individual was a groundman (T 517). In addition, therecord shows that scaffold sections other than section \”E\” wereroutinely used for access to the work area (T 76-77, 93-94, 196, 200,470-71). However, even if I were to find that scaffold section \”E\” wasused as a means of egress from the top of the scaffolding, I would notfind a violation of 29 C.F.R. ? 1926.416(a)(1) on that basis alone. Theclosest energized conductor was approximately five and one-half feetfrom the side of the scaffold. If an employee climbed down through thescaffold framework, his movements presumably would be controlled andconfined within the structural members of the scaffold. He would not besufficiently close to a power line over five feet away to come intocontact with that line as he passed it on his way down._FINDINGS OF FACT_All findings of fact relevant and necessary to a determination of thecontested issues have been found specially and appear above in thedecision. See Fed. R. Civ. P. 52. Any proposed findings of fact orconclusions of law that are inconsistent with this decision are deemeddenied._CONCLUSIONS OF LAW_1. Century Steel Erectors, Inc. at all times material to this proceedingwas subject to the requirements of the Act and the jurisdiction of theCommission.2. The record establishes by a preponderance of the evidence thatCentury committed a serious but not willful violation of 29 C.F.R. ?1926.105(a).3. A penalty of $1000 is appropriate for this violation.4. The preponderance of the evidence does not establish that Century wasin violation of 29 C.F.R. ? 1926.416(a)(1)._ORDER _Based upon the findings of fact, conclusions of law, and the entirerecord, it is ORDERED1. Item 2 of citation no. 1 is affirmed item 3 of citation no. 1 isamended to a nonserious violation and as amended is affirmed, and item1a of citation no. 2 as amended in the complaint is affirmed as aserious violation. A total penalty of $1450 is assessed.2. Item 1 of citation no. 1; items 1b, 1c, 1d, and 2 of citation no. 2;and item 1 of citation no. 3 are vacated.IRVING SOMMERJudge, OSHRCDATED: JUL 18, 1988Washington, D.C.————————————————————————ELIZABETH DOLE, SECRETARY OF LABORU. S. DEPARTMENT OF LABORComplainantv.CENTURY STEEL ERECTORS, INC.,and its successors,RespondentDocket No. 87-1348APPEARANCES:COVETTE ROONEY, ESQUIREU. S. Department of Labor3535 Market StreetPhiladelphia, PA 19104For the ComplainantRICHARD R. NELSON, II, ESQUIREAlder, Cohen & Grigsby600 Grant Street, 5th FloorPittsburgh, PA 15219For the Respondent_DECISION AND ORDER_SOMMER, JUDGE:This case is before the undersigned on remand from the Commission. Inits remand order, the Commission directed that necessary findings bemade consistent with the order of the United States Court of Appeals forthe D. C. Circuit. _Century Steel Erectors, Inc. v. Secretary of Labor,_888 F.2d 1399 (D. C. Cir. 1989), rev’g _Century Steel Erectors, Inc._ 13BNA OSHC 1869, 1988 CCH OSHD ? 28,294 (No. 87-1348, 1988).The standard at issue in this case, 29 C.F.R. 1926.105(a) provides:Safety nets shall be provided when workplaces are more than 25 feetabove the ground or water surface, or other surface where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, orsafety belts is impractical.Since the Secretary does not allege the violation herein was the failureto use safety nets (the Compliance Officer testified they wereinfeasible and inappropriate), but that alternative measures (tieing onwith safety belts and lanyards) could have been used, the burden is onthe Secretary to prove that \”its use is practical\”, and \”must consider,and overcome, the employer’s evidence that such devices are’impractical’ including its evidence of industry custom and practice.\”_Century Steel,_ 888 F.2d at 1406Century’s employees were engaged in burning off tack welds, collectingthe bar joists, and lowering them to the ground. These activities werepart of the dismantling of the structural steel supports of the catchplatform previously used.The Court of Appeals concluded that the testimony of Compliance OfficerDraper established that the \”use of safety belts was ‘practical’ withinthe meaning of .105(a)\”. 888 F.2d at 1403.Century contended that the use of safety belts during the work period atissue was impractical and contrary to industry practical and custom inthe area concerned herein, i.e. the western part of Pennsylvania. Tosupport this contention testimony was elicited from the employees ofCentury who were ironworkers with a combined total of over 70 yearsexperience in the field. Each of them testified they had done tackwielding during their career, and that such work required the welder tobe constantly moving, and therefore the use of safety belts was ahazard. They further testified that the steel erection industry customand practice in the western district of Pennsylvania where the work wasbeing done by Century was not to use safety belts under the facts andcircumstances herein. They testified in a straightforward, frank andconvincing manner, and their testimony was not discredited, nor rebuttedby the Secretary. Under the facts of this case, the Respondent hasproven that the use of safety belts was impractical. The citationalleging a violation of 29 C.F.R. 1926.105(a) is not supported by apreponderance of the evidence in the record and is vacated. [[1]]_FINDINGS OF FACT_All findings of fact relevant and necessary to a determination of thecontested issue has been specially found and appear above in thedecision. See Fed. R. Civ. P. 52. Any proposed findings of fact andconclusions of law that are inconsistent with this decision are denied._CONCLUSIONS OF LAW_1. Century Steel Erectors, Inc. at all times material to this proceedingwas subject to the requirements of the Act and the jurisdiction of theCommission.2. The preponderance of the evidence does not establish that Century wasin violation of 29 C.F.R. 1926.105(a)._ORDER_Based upon the findings of fact, conclusions of law, and the entirerecord, it is ORDERED:Citation No. 2, item 1(a) as amended, alleging a willful violation of 29C.F.R. 1926.105(a) is vacated.IRVING SOMMERJudge, OSHRCDATED: NOV 20, 1990Washington, D.C.————————————————————————FOOTNOTES:[[1]] Section 1926.105(a) provides: Safety nets shall be provided whenworkplaces are more than 25 feet above the ground or water surface, orother surface where the use of ladders, scaffolds, catch platforms,temporary floors, safety lines, or safety belts is impractical.[[1]] The standard provides:? 1926.105 Safety nets.(a) Safety nets shall be provided when workplaces are more than 25 feetabove the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, orsafety belts is impractical.[[2]] The complaint alleges that employees were not protected from afall \”through the use of safety belts or harnesses with lanyards orother _suitable_ protective means\” (emphasis added). At the hearing theSecretary’s counsel stated that the citation was not based on theabsence of nets and that the Secretary did not intend to show that netscould have been used.[[3]]The standard provides:? 1926,416 General requirements.(a) Protection of employees –(1) No employer shall permit an employeeto work in such proximity to any part of an electric power circuit thatthe employee could contact the electric power circuit in the course ofwork, unless the employee is protected against electric shock bydeenergizing the circuit and grounding it or by guarding it effectivelyby insulation or other means.[[4]] The deceased hit one of the deenergized 12kv lines as he fell, andhe was not electrocuted.[[5]] Because the scaffold was not precisely parallel to the powerlines, but somewhat angled in relation to them, the distance between thescaffold and the power lines would vary. Campbell, for example,testified that the distance to the nearest conductor at one point was9.7 feet. (T 331-34, ex. G3). For purposes of this decision I will usethe shortest distances shown on the record.[[6]]_CIeveland Consolidated_ involved 29 C.F.R. ? 1926.400(c)(1), thepredecessor to ? 1926.416(a)(1). When the Secretary revised theelectrical standards in Subpart K of Part 1926, ? 1926.400(c)(1) wasredesignated as ? 1926.416(a)(1). 51 Fed. Reg. 25308 (1986).[[7]] Inspector Draper’s own testimony puts the proper gloss onSpieler’s fall in relation to the alleged violation of 29 C.F.R. ?1926.416(a)(1):Q. [Spieler] was at least ten feet from the power lines, wasn’t he?A. _Not on the way down, he wasn’t;_ but when he was working on thebeam, he was. (T155-56, emphasis added).[[1]] The cases relied upon by the Secretary do not address the issue athand and are distinguishable from the interpretation of Section1926.105(a) by the D.C. Circuit Court of Appeals, to which deference isgiven.”