“Docket No. 87-1348 SECRETARY OF LABOR,Complainant,v.CENTURY STEEL ERECTORS, INC.,Respondent.OSHRC Docket No. 87-1348ORDERThis case was remanded to the Commission by the United StatesCourt of Appeals for the D.C. Circuit. Century Steel Erectors, Inc. v. Secretary ofLabor, 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) (unreviewed decision ofAdministrative Law Judge). The court reversed a decision that had found Century SteelErectors in violation of 29 C.F.R. 1926.105(a) [[1]] and remanded the case \”forfurther consideration.\”Century was cited for violating section 1926.105(a) because itdid not require its employees cutting tack welds to use safety belts and tied-off lanyardseven though they were exposed to a 40-foot fall. The judge affirmed a violation of section1926.105(a). He found that, although the use safety nets would have been impractical,Century’s employees could have been protected by securing their safety belt lanyards to asecure object or safety line. The judge held that Century’s claim that it was the customand practice in the industry not to tie off while cutting welds was no defense to aviolation of section 1926.105(a).The court accepted the judge’s finding that the use of safetynets was impractical. Furthermore, the court held that the Secretary has the burden ofestablishing that the use of safety belts is practical. Once the Secretary has presented aprima facia case, the court held, the employer has the opportunity to present evidencethat the use of safety belts is not practical, including evidence of the industry’s customand and practice of not using safety belts during the cited operation. The court held thatjudge should have considered the evidence introduced by Century on the custom and practicein the steel erection industry, and it remanded the case for a determination of thepracticality of using safety belts during the cutting of tack welds.Accordingly, we remand this case to the Administrative Law Judge for him to make thenecessary findings consistent with the court’s order and to issue an order disposing ofthe section 1926.105(a) citation. Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDATED:\u00a0\u00a0\u00a0 May 24, 1990SECRETARY OF LABOR,Complainant,v.CENTURY STEEL ERECTORS, INC.,Respondent.Docket No. 87-1348APPEARANCES:COVETTE ROONEY, Esquire U. S. Department of Labor Office of the Solicitor Philadelphia, PennsylvaniaFor the ComplainantRICHARD R. NELSON II, EsquireAlder Cohen & Grigsby, P. C. Pittsburgh, PennsylvaniaFor the Respondent DECISION AND ORDERSommer, Judge:This is a proceeding under section 10 (c) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651-78 (\”the Act\”), to reviewcitations and 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 were represented bycounsel who filed post-hearing briefs. No jurisdictional issues are in dispute, Respondenthaving admitted the jurisdictional allegations of the complaint. There are two citationitems in issue–items 1a and 2 of citation no. 2.Citation no. 1 alleged that Respondent had committed seriousviolations of 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 the parties agreed to settlethese items by vacating item 1, affirming item 2 and assessing a penalty of $250, andamending item 3 to non-serious and assessing a penalty of $200.Item 1a of citation no. 2 alleged a willful violation ofsection 5 (a) (1) of the Act or, in the alternative, 29 C.F.R. ? 1926.28(a) for failureto protect employees from a fall hazard by the use of safety belts and lanyards or othermeans. The complaint amended this allegation to allege a violation of 29 C.F.R. ?1926.105(a) in lieu of section 5(a)(1) and 29 C.F.R. ? 1926.28(a). Items 1b-1d allegedviolations of 29 C.F.R. ? 1926.20(b)(1)1 1926.20(b)(2), and 1926.21(b)(2). Theseallegations were dismissed with prejudice on Complainant’s pretrial motion, leaving onlythe 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 of29 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 close proximity toenergized high-voltage lines without taking adequate precautions to protect employees fromthe hazard of severe electric shock. Complainant proposed a penalty of $10,000 for thisalleged violation, and a penalty of $9000 was proposed for the willful violations allegedin item 1 of citation 2.BACKGROUND Respondent is a steel erection contractor with offices at 1125Camp Hollow Road, West Mifflin, Pennsylvania. It was a subcontractor to TrumbullCorporation on a construction site at the junction of the Pennsylvania Turnpike and Route28 in Harmarville, Pennsylvania. (T 11, 411, ex. R9). Trumbull was engaged in repairingthe bridge which carried the Turnpike over Route 28 and adjoining railroad tracks. (T423). Pursuant to its contract, Respondent had erected a scaffold to support a catchplatform for protecting the highway, the ramp from the highway to the turnpike, and therailroad tracks from falling debris. (T 58, 376, 437). The catch platform was built in twoseparate sections, one over the roadway and the other over the railroad tracks. Thesection over the railroad tracks was built higher in order to clear some power lines thatran alongside the tracks. (T 443-44). At the time in question, the repair work had beencompleted, the catch platform had been removed, and Respondent was in the process ofdismantling the scaffold.Complainant’s compliance officer inspected Respondent’sworksite on June 17, 1987, in response to a fatal accident the previous day when anemployee of Respondent fell approximately 40 feet from the top of the scaffold.Complainant alleges that Respondent’s employees were not using fall protection and thatthey were working too close to energized power lines.DISCUSSION Alleged violation of 29 C.F.R. ? 1926.105(a) [[1]] –item 1a of willful citation no. 2The scaffold on which Respondent’s employees were workingconsisted of several parallel sections of scaffolding. An H-beam, 14 inches wide, ranacross the top of each section. These beams in turn supported crossbeams, referred to asbar joists, which extended between the scaffold sections, connecting one scaffold sectionto another. The catch platform, 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 theaccident occurred, the bar joists were being detached from the scaffold structure. on thefollowing day, when the inspection was conducted, removal of the bar joists was beingcompleted, and some of Respondent’s employees were preparing to remove the supportingH-beams. (T 521-26, 536-39). The deceased employee, William Spieler, was a member of awork crew that was using cutting torches to remove the tack welds holding the bar joistsin place. Although the record does not show whether Spieler was wearing a safety belt atthe 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 was being performed onscaffold sections \”D\” and \”E,\” the latter being the scaffold fromwhich Spieler had fallen. Two employees were cutting welds away from bar joists onscaffold \”D,\” while two others were sitting straddling an H-beam waiting toconnect it to the sling of the crane that 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 employee had a belt but nolanyard. Draper felt that safety nets could not have been hung and would not have beenappropriate but told foreman Ronald Schagle that the employees should be tied off. [[2]]Schagle then instructed them to do so, except for the one employee who did not even have alanyard. (T 39-41, 51). Although the record is not explicit, it appears that the employeeswho tied off did so by looping their lanyards around one of the beams (T 50; ex. G2(j)).Schagle did not deny that he instructed the employees to tieoff but testified that he did so to placate Draper and because the employees had stoppedworking when Draper appeared. Schagle felt that if employees were simply going to sit onthe beams doing nothing they might as well tie off. He then changed his mind and directedthe workers to come down since they were not working. (T 519).Respondent’s written safety rules require that \”when working in high places or wherethere is a chance of falling, employees must use safety devices\” and that\”workers must be tied off when working in a stationary position such as grinding,welding, torch burning …\” (ex. R1). However, ironworkers are not required to usesafety belts while removing tack welds and customarily do not tie off during such workbecause it is considered 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 high degree of mobility because the welds oneach end of the joists were being 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 lanyard could get snagged.(T 391). Superintendent Weber agreed that tying off would be more hazardous but did notexplain why. (T 476).The record also shows that Respondent has a well-establishedsafety program. Its safety manual is printed in the form of a small booklet that isdistributed to all employees. Regular safety meetings are held at jobsites, and a writtenrecord is made of such meetings. Respondent’s rule that employees must tie off whilestationary is frequently mentioned at these meetings. Foremen and superintendents have theresponsibility for enforcing the safety rules, and foreman Schagle testified that he hasreprimanded employees for not tying off where required. (T 424-26, 542). Jobs are plannedin advance, including on-site visits by superintendent Weber to determine how the work maybe performed safely. Respondent’s safety director also makes field visits, a report ofwhich is given to Weber and the on-site foreman. Exhibit R6 includes a report of thesafety director’s visit to the Harmarville worksite in March 1987, which notes that mostemployees were tied off and the failure of two employees to wear their belts was correctedimmediately. Respondent’s insurance carrier, Liberty Mutual, also conducts inspectionswhich include discussions with foremen and employees. Reports of inspections by LibertyMutual of the Harmarville site in September and October 1986 were admitted as exhibit R8.The first report recommends that \”ironworkers working in a stationary position suchas welding or burning\” should be tied off. This recommendation refers to welding thatrequires a substantial amount of time in one location and does not include tack welding.The second report notes that \”the practice of tying off ironworkers has been stressedat a number of safety talks held on the job.\” Additional safety material maintainedby Respondent consists of safety memos that are distributed to employees to keep themabreast of company safety policy and a daily diary of each major job, in which safetynotations are logged. (T 424-36, 480-81).Respondent is charged with a violation of 29 C.F.R ?1926.105(a), which requires 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 (5th Cir. 1974),both the Commission and the courts have held that the standard is violated if none of thedevices listed, including safety belts, are being used to protect employees from a fall ofover 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 systems Division, 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 other grounds, 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 inthe standard is in fact being used at the worksite in question, the employer will be inviolation only if the device it is using does not provide adequate fall protection. SeeL.E. Myers, supra, 818 F.2d at 1276 n.6 and cases cited therein. In L.R.Willson & Sons. Inc. v. Donovan, 685 F.2d 664 (D.C. Cir. 1982) (\”WillsonI\”), the court concluded that the standard does not require that fall protectionbe 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 used during a\”substantial portion\” of the workday.In the instant case, Respondent contends that item la must bevacated because Complainant failed to prove that safety belts were not used for asubstantial part of the day of the inspection. In fact, Respondent claims that complianceofficer Draper testified that after the employees tied off at his insistence, theyremained tied off during the rest of that day. (Trial brief at 15-16, reply brief at 4). Ifind to the contrary.The violation was alleged to have occurred on June 16 (the day of the fatality) and June17 (the day of the inspection). The work being performed consisted of the removal of barjoists on June 16 and the removal of bar joists and H-beams on June 17. It is undisputedthat Respondent does not require its ironworkers to tie off during either of theseoperations and that they customarily do not tie off when doing such work. The evidencetherefore supports a finding that Respondent’s employees were not using safety belts onJune 16.on the following day, none of the ironworkers were tied offwhen compliance officer Draper first observed them, and they did not tie off until heinsisted that they do so. The record shows that Draper arrived at the site at about 11a.m., that the employees came down for their lunch break after they initially had tiedoff, and that he then saw them tied off for about 15 minutes when they went back to workafter lunch. Draper then left the worksite. (T 12, 29, 102). Contrary to Respondent’sargument, the evidence does not show that the employees remained tied off after Draperleft. However, since I find that Respondent’s employees did not use safety belts duringtheir normal work operations before the inspector arrived, I do not need to speculate onwhat actions the employees may or may not have taken after Draper’s departure. Since theevidence shows that Respondent’s employees were exposed to a fall of more than 25 feet andthat none of the devices listed in the standard were used, Complainant has established aprima facie case. Sierra Construction Corp., 78 OSAHRC 2\/E6, 6 BNA OSHC 1278, 1978CCH OSHD ? 22,506 (No. 136381, 1978).Respondent also contends that it would not have been practical for its employees to tieoff during the work operations at issue here. Respondent emphasizes the need for mobility,the interference that lanyards would cause, and the custom and practice of ironworkers notto tie 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 othergrounds, 843 F.2d 1135 (8th Cir. 1988), Respondent can defend by showing that the useof tied-off safety belts would have been infeasible. However, I find that it failed toestablish its defense.With the exception of foreman Beton’s remark that a lanyardcould get snagged, Respondent’s evidence does not explain why the need for mobility wouldpreclude or render infeasible the use of safety belts. I find Beton’s testimonyunpersuasive. The record does not show that Beton had any knowledge of or experience withlanyards becoming snagged or that he had any other basis on which to conclude thatsnagging was a realistic possibility. In addition, foreman Schagle described the normalprecautions that are taken to prevent a welding torch hose from interfering with the work:the hose is pulled or draped over a joist to reduce slack, the hose is not laid in theimmediate work area, and attempts are made to avoid tangles that could cause a trippinghazard. (T 544-45). The record does not show any reason why similar care could not betaken with respect to a lanyard. Furthermore, Schagle testified that while tying off isnot customary, employees are permitted to tie off if they so choose, and in fact heconceded that safety belts could have been used for a majority of the workday. (T 530-31).Finally, since 29 C.F.R. ? 1926.105(a) is a specific standard, compliance with industrycustom and practice is not a defense. See Willson II, supra, 173 F.2d at1387.However, I do not find the violation willful as alleged. Toestablish that a violation is willful, the Secretary must show that it was committedvoluntarily with either an intentional disregard for the requirements of the Act or plainindifference to employee safety. E.g., Simplex Time Recorder Co., OSAHRC \/12 BNA OSHC 1591, 1984-85 CCH OSHD ? 27,456 (No. 82-12, 1985). The evidence fails toprove that Respondent exhibited disregard for the fall protection requirements of 29C.F.R. ? 1926.105(a) or was indifferent to employee safety.Complainant contends that the violation is willful becauseRespondent allowed its employees to continue to work without using safety belts on the dayafter Spieler fell. However, simple carelessness or lack of diligence in eliminating aviolative condition does not in itself establish willfulness. Asbestos Textile Co., OSAHRC12 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 the employer’s state ofmind:[A]n act may be \”willful\” if the offender shows\”indifference\” to the rules; he need not be consciously aware that the conductis forbidden at the 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 the offender’s knowledge ofconditions even without direct evidence of its subjective attitude toward the law. But,this is not such a case, For experienced workers on a flat roof (surrounded by a lowparapet) to come within 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 required by law toassume a \”willful\” state of mind on the part of the employer.Brock v. Morello Brothers Construction, Inc., 809 F.2d161 (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 walking along and sittingon 14-inch wide beams to be hazardous. Based on conversations with Spieler’s co-workers,Schagle also determined that Spieler 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. Nor can I concludethat experienced ironworkers working off of beams 14 inches wide presents such anegregious hazard that a willful state of mind should be presumed in the absence of anyother evidence.In addition, Respondent has a comprehensive general safetyprogram, including a specific safety belt rule that it implements and enforce in certainwork operations. Precautions Respondent took prior to the inspection at an earlier stageof the scaffold construction further demonstrate that it was not unmindful of the need forfall protection. When the scaffold and catch platform was first erected, Respondentinstalled a cable and placed pieces of metal decking along the perimeter of the catchplatform as fall protection. It also put a handrail along a walkway that connected the twosections of the catch platform. (T 441-43, 474-75). After the perimeter protection wasremoved when Respondent began disassembling the scaffold, it made safety belts andlanyards available to its employees for their use if they so desired. (T 475, 530-31).Belts were in fact used when employees began dismantling larger sections of the scaffoldafter the bar joists and H-beams had been taken down. (T 543). The fact that Respondentfurnished but did not require full use of safety belts is not sufficient to show a willfulviolation; a good faith effort to comply with a standard or eliminate a hazard negateswillfulness even if the employer’s efforts are not entirely effective or complete. MobilOil Corp., 83 OSAHRC 47\/B6, 11 BNA OSHC 1700, 1983-84 CCH OSHD ? 26,699 (No. 79-4802,1983).The record evidence is sufficient, however, to show that theviolation of 29 C.F.R. 1926.105(a) is serious under section 17(k) of the Act. ForemanSchagle knew that the deceased and other employees were not tied off (T 33), and thereclearly was a substantial probability of death or serious injury. Consistent with thecriteria set forth in section 17(j), and all the circumstances herein, a penalty of $1000is assessed.Alleged violation of 29 C.F.R. ? 1926.416(a)(1) [[3]] — item2 of willful citation no. 2Scaffold section \”E,\” one of the sections that hadsupported the catch platform over the railroad tracks, was adjacent and parallel to somepower lines that ran alongside the tracks. (T 16-17; ex. R9). The bar joists betweenscaffold sections \”D\” and \”E\” which were being removed at the time ofthe inspection were perpendicular to, and crossed over, the power lines. (Ex. C1 (a), R9).The lines were supported on poles with two crossarms. The lowercrossarm carried three phases (conductors) of 12kv (12,000 volts) each; there were three25kv lines on the upper crossarm. On the day of the accident only the top lines wereenergized. None of Respondent’s employees, including the deceased, ever actually came intocontact with the energized lines, which were not insulated. (T 159, 267).[[4]]Complainant’s theory is that the employees were working too close to the lines.The power lines were operated by West Penn Power Company (\”West Penn\”). Towardthe end of January 1986, when West Penn’s line foreman reported that Respondent wasbuilding some scaffolding in the area, Campbell, West Penn’s senior engineeringtechnician, went to the worksite to check clearances. He decided to move the 25kvconductors as far from the scaffold as possible and to deenergize sections of two of the12kv lines. One 25kv conductor was relocated from the scaffold side of the crossarm to theother side of the pole, thus freeing space to move the outermost conductor closer to thepole. Two 12kv lines were deenergized between the poles closest to the work area; theremaining 12kv line was left energized to supply power for Respondent’s equipment at thesite. (T 303-13).There is general agreement regarding the distances between thepower lines and the scaffold. For this decision, I will rely on the testimony of WestPenn’s personnel, who took actual measurements of these distances. The 12kv lines wereapproximately 27 feet above the ground and 5 feet, 4 inches below the 25kv lines. The topcrossarm which supported the 25kv lines was 11.8 feet below the level of the bar joists.Laterally, the pole was 5.8 feet from the scaffold and the closest 25kv insulator was 5.6feet to the side of the scaffold. The 12kv line that remained energized was on theopposite side of the pole, 10 feet horizontally from the scaffold and 17 feet below thelevel of the joists. (248-55, 327-28, 356-57; ex. G3).[[5]]Since the top of the scaffold where the employees were working was above and to one sideof the power line, the closest distance between the nearest 25kv conductor and theemployees on the scaffold beams would be a diagonal line extending down from the top ofthe scaffold and over to the conductor. While the record does not indicate the length ofthis imaginary line, I take official notice that it would be approximately 13 feet bymathematical computation.On or about February 11, Respondent was ready to put the firstbar joists in place. Since this work required use of a crane, foreman Beton asked WestPenn to deenergize the 25kv lines. West Penn cut the lines off the next morning, February12. On that day, while measuring for the bar joists, Beton accidentally dropped his metalmeasuring tape onto the one energized 12kv line. This incident did not cause any injuries.(T 268-80, 402-03, 407-08; ex. G6). Shoemaker, West Penn’s claim representative, estimatedthat Beton would have been no closer than 20 feet to the energized line when taking hismeasurements. (T 295, 297). Although this line supplied power to the worksite, it wasdeenergized at the time of the accident for reasons which the record does not indicate. (T106-08).Respondent’s safety rule specifies minimum clearance distancesfrom unprotected or uncovered power lines. Ironworkers may not come within 8 feet of8.7-15kv lines and must keep 10 feet away from 15-35kv lines. This safety rule has beenagreed on with the employees’ union, and it appears in Respondent’s union contract as wellas Respondent’s safety manual. (T 151-52; ex. R1, R3).The cited standard, 29 C.F.R. ? 1926.416(a)(1), does notspecify any minimum clearance distance from unguarded or uninsulated energized circuits.Rather, it limits the \”proximity\” of an employee to such circuits. While theterm \”proximity\” is not vague, the standard does require proof \”byobjective means [that] employees are within reach of, and therefore may contact, anenergized power circuit while they work.\” Cleveland Consolidated, Inc.,OSAHRC\/, 13 BNA OSHC 1114, 1117, 1986-87 CCH OSHD ? 27,829, p. 36,428 (No. 84-696,1987).[[6]]It is clear from the record evidence that Respondent’semployees were in excess of 10 feet from the power lines during the course of their workon top of the scaffolding. The scaffolding itself separated them from the conductors, andtheir work duties did not require that they work or go below the top of the scaffolding.Nor were they using any tools with long handles or other components capable of extendinginto the lines. The evidence fails to show any \”objective facts\” from which onecould reasonably conclude that the employees were within reach of the power lines in theperformance of their work duties.Nevertheless Complainant contends that there are somecircumstances indicating that employees could have come into contact with the power lines.The Secretary refers to the incident when Beton dropped his tape into the lines as well asto the accident itself when Spieler hit some of the lines as he fell. However, Beton’sdropping of his tape was clearly not part of his assigned work duties but an accidentwhich, so far as the record indicates, was totally unanticipated. The Act does not requirean employer to prevent all accidents or to be an insurer of his employees’ safety. E.g,Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977). Similarly,Spieler’s fall was the result of the lack of fall protection at the worksite; the factthat he happened to strike 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 tothe lines when 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 abar joist between sections \”D\” and \”E,\” thus crossing over the powerlines. (T 30). Since the 25kv lines were more than 11 feet below the bar joists, I findthat an employee crossing over the lines on a bar joist would not be \”within reachof\” the lines under the rule of Cleveland Consolidated, supra.There is a conflict in the testimony as to whether employees used scaffold \”E\”as a means of egress from the work area. As previously indicated, the closest 25kv linewas approximately five feet to the side of scaffold \”E.\” According to Draper,the employee who did not have a lanyard came down off the scaffolding by climbing downthrough scaffold \”E.\” Draper took a photograph of the employee inside theframework of scaffold \”E.\” (T 51, 140-41; ex. G2(1)). Schagle insisted that theemployee Draper photographed was a \”ground man\” whose duties included taggingbundles of joists coming off the structure, controlling tag lines, landing material, andpreparing material for loading onto trucks. Schagle was not sure why the employee was inthe scaffold but speculated that he may have jumped up into the scaffold to free a guidecable that had gotten hung up as it was dropped. Schagle said that this employee was onthe scaffold about 5 or 6 feet of f the ground when the photograph was taken. (T 516-20,543, 545-46). Draper estimated that the employee was about 8 feet above the ground whenphotographed. (T 135).I find Schagle’s testimony on this issue to be more credible.Schagle identified by name the employee shown in exhibit G2(1) and positively stated thatthe individual was a groundman (T 517). In addition, the record shows that scaffoldsections other than section \”E\” were routinely 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\” was used 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. The closest energizedconductor was approximately five and one-half feet from the side of the scaffold. If anemployee climbed down through the scaffold framework, his movements presumably would becontrolled and confined within the structural members of the scaffold. He would not besufficiently close to a power line over five feet away to come into contact with that lineas he passed it on his way down.FINDINGS OF FACTAll findings of fact relevant and necessary to a determinationof the contested issues have been found specially and appear above in the decision. SeeFed. R. Civ. P. 52. Any proposed findings of fact or conclusions of law that areinconsistent with this decision are deemed denied.CONCLUSIONS OF LAW1. Century Steel Erectors, Inc. at all times material to thisproceeding was subject to the requirements of the Act and the jurisdiction of theCommission.2. The record establishes by a preponderance of the evidencethat Century 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 thatCentury was in violation of 29 C.F.R. ? 1926.416(a)(1).ORDER Based upon the findings of fact, conclusions of law, and the entire record, it is ORDERED1. Item 2 of citation no. 1 is affirmed item 3 of citation no.1 is amended to a nonserious violation and as amended is affirmed, and item 1a of citationno. 2 as amended in the complaint is affirmed as a serious violation. A total penalty of$1450 is assessed.2. Item 1 of citation no. 1; items 1b, 1c, 1d, and 2 ofcitation no. 2; and item 1 of citation no. 3 are vacated.IRVING SOMMERJudge, OSHRCDATED: JUL 18, 1988 Washington, D.C.ELIZABETH DOLE, SECRETARY OF LABORU. S. DEPARTMENT OF LABORComplainantv.CENTURY STEEL ERECTORS, INC.,and its successors, Respondent Docket No. 87-1348APPEARANCES:COVETTE ROONEY, ESQUIREU. S. Department of Labor 3535 Market StreetPhiladelphia, PA 19104 For the ComplainantRICHARD R. NELSON, II, ESQUIRE Alder, Cohen & Grigsby600 Grant Street, 5th Floor Pittsburgh, PA 15219For the RespondentDECISION AND ORDERSOMMER, JUDGE:This case is before the undersigned on remand from theCommission. In its remand order, the Commission directed that necessary findings be madeconsistent with the order of the United States Court of Appeals for the D. C. Circuit. CenturySteel Erectors, Inc. v. Secretary of Labor, 888 F.2d 1399 (D. C. Cir. 1989), rev’g CenturySteel Erectors, Inc. 13 BNA 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 25feet above the ground or water surface, or other surface where the use of ladders,scaffolds, catch platforms, temporary floors, safety lines, or safety belts isimpractical.Since the Secretary does not allege the violation herein wasthe failure to use safety nets (the Compliance Officer testified they were infeasible andinappropriate), but that alternative measures (tieing on with safety belts and lanyards)could have been used, the burden is on the Secretary to prove that \”its use ispractical\”, and \”must consider, and overcome, the employer’s evidence that suchdevices are ‘impractical’ including its evidence of industry custom and practice.\” CenturySteel, 888 F.2d at 1406Century’s employees were engaged in burning off tack welds,collecting the bar joists, and lowering them to the ground. These activities were part ofthe dismantling of the structural steel supports of the catch platform previously used.The Court of Appeals concluded that the testimony of ComplianceOfficer Draper established that the \”use of safety belts was ‘practical’ within themeaning of .105(a)\”. 888 F.2d at 1403.Century contended that the use of safety belts during the workperiod at issue was impractical and contrary to industry practical and custom in the areaconcerned herein, i.e. the western part of Pennsylvania. To support this contentiontestimony was elicited from the employees of Century who were ironworkers with a combinedtotal of over 70 years experience in the field. Each of them testified they had done tackwielding during their career, and that such work required the welder to be constantlymoving, and therefore the use of safety belts was a hazard. They further testified thatthe steel erection industry custom and practice in the western district of Pennsylvaniawhere the work was being done by Century was not to use safety belts under the facts andcircumstances herein. They testified in a straightforward, frank and convincing manner,and their testimony was not discredited, nor rebutted by the Secretary. Under the facts ofthis case, the Respondent has proven that the use of safety belts was impractical. Thecitation alleging a violation of 29 C.F.R. 1926.105(a) is not supported by a preponderanceof the evidence in the record and is vacated. [[1]]FINDINGS OF FACTAll findings of fact relevant and necessary to a determinationof the contested issue has been specially found and appear above in the decision. See Fed.R. Civ. P. 52. Any proposed findings of fact and conclusions of law that are inconsistentwith this decision are denied.CONCLUSIONS OF LAW1. Century Steel Erectors, Inc. at all times material to thisproceeding was subject to the requirements of the Act and the jurisdiction of theCommission.2. The preponderance of the evidence does not establish thatCentury was in violation of 29 C.F.R. 1926.105(a). ORDERBased upon the findings of fact, conclusions of law, and theentire record, it is ORDERED:Citation No. 2, item 1(a) as amended, alleging a willfulviolation of 29 C.F.R. 1926.105(a) is vacated.IRVING SOMMER Judge, OSHRCDATED: NOV 20, 1990 Washington, D.C.FOOTNOTES:[[1]] Section 1926.105(a) provides: Safety nets shall beprovided when workplaces are more than 25 feet above the ground or water surface, or othersurface where the use of ladders, scaffolds, catch platforms, temporary floors, safetylines, or safety belts is impractical.[[1]] The standard provides:? 1926.105 Safety nets.(a) Safety nets shall be provided when workplaces are more than25 feet above the ground or water surface, or other surfaces where the use of ladders,scaffolds, catch platforms, temporary floors, safety lines, or safety belts isimpractical.[[2]] The complaint alleges that employees were not protectedfrom a fall \”through the use of safety belts or harnesses with lanyards or other suitableprotective means\” (emphasis added). At the hearing the Secretary’s counsel statedthat the citation was not based on the absence of nets and that the Secretary did notintend to show that nets could have been used.[[3]]The standard provides:? 1926,416 General requirements.(a) Protection of employees –(1) No employer shall permit anemployee to work in such proximity to any part of an electric power circuit that theemployee could contact the electric power circuit in the course of work, unless theemployee is protected against electric shock by deenergizing the circuit and grounding itor by guarding it effectively by insulation or other means.[[4]] The deceased hit one of the deenergized 12kv lines as hefell, and he was not electrocuted.[[5]] Because the scaffold was not precisely parallel to thepower lines, but somewhat angled in relation to them, the distance between the scaffoldand the power lines would vary. Campbell, for example, testified that the distance to thenearest conductor at one point was 9.7 feet. (T 331-34, ex. G3). For purposes of thisdecision I will use the shortest distances shown on the record.[[6]] CIeveland Consolidated involved 29 C.F.R. ?1926.400(c)(1), the predecessor to ? 1926.416(a)(1). When the Secretary revised theelectrical standards in Subpart K of Part 1926, ? 1926.400(c)(1) was redesignated 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’the?A. Not on the way down, he wasn’t; but when he wasworking on the beam, he was. (T155-56, emphasis added).[[1]] The cases relied upon by the Secretary do not address the issue at hand and aredistinguishable from the interpretation of Section 1926.105(a) by the D.C. Circuit Courtof Appeals, to which deference is given.”