“SECRETARY OF LABOR,Complainant,v.DANIEL MARR & SON COMPANY,Respondent.OSHRC Docket No. 82-0612_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651- 678 (\”the Act\”). The Commissionis an adjudicatory agency, independent of the Department of Labor andthe Occupational Safety and Health Administration. It was establishedto resolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).Daniel Marr & Son Company (\”Daniel Marr\”) is a steel erection firm thatwas engaged in the construction of the Turbine #2 Building at theSeabrook Nuclear Power Plant in Seabrook, New Hampshire. Following anOSHA inspection of the Seabrook site, Daniel Marr was cited for aserious violation of two safety standards, 29 C.F.R. ?1926.750(b)(1)(ii) [[1\/]] and 29 C.F.R. ? 1926.105(a).[[2\/]]The turbine building under construction contained a steel frame 325 feetlong and about 115 feet high and had two floors at heights of 50 and 75feet. Daniel Marr had contracted to build this steel frame. At thetime of the OSHA inspection, Daniel Marr’s employees were observedworking at the top of the steel frame, 40 feet above the floor and 115feet above the ground. As a matter of general procedure, Daniel Marrinstalled safety nets after the extension columns and cross bracing hadbeen set. No nets were in place at the time of the inspection. TheSecretary of Labor issued a two-part citation on the theory that DanielMarr failed to provide interior fall protection required under section1926.750(b)(1)(ii) and failed to provide exterior fall protectionrequired under section 1926.105(a).Daniel Marr does not contest the judge’s finding that it violated thesafety net requirement of section 1926.750(b)(1)(ii) and that portion ofthe judge’s decision is not on review. Instead Daniel Marr, citing 29C.F.R. ? 1910.5(c)(1),[[3\/]] contends that the steel erection standardat section 1926.750(b)(1)(ii) is specifically applicable to the citedconditions and precludes application of the general constructionstandard at section 1926.105(a). On this basis, Daniel Marr conteststhe judge’s ruling that it could be in violation of both section1926.105(a) and section 1926.750(b)(1)(ii).We agree that Daniel Marr cannot be found in violation of both standardsand vacate that portion of the citation alleging a violation of section1926.105(a). In _Adams Steel Erection_, OSHRC Docket No. 77-4238 (July20, 1984), we held that section 1926.750(b) is specifically applicableto the hazard of falling in the steel erection industry and that section1926.105(a) may not be applied to require methods of fall protectiondifferent from that specified in section 1926.750(b). It follows thenthat Daniel Marr cannot be found to have violated both standards. Accordingly, that portion of the citation alleging a violation ofsection 1926.105(a) is vacated.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUL 20 1984CLEARY, Commissioner, dissenting:For reasons set forth in my dissenting opinion in _Adams SteelErection_, OSHRC Docket No. 77-4238 (July 20, 1984), I dissent from theconclusion that, in the steel erection industry, section 1926.105(a) maynot be applied to require methods of fall protection different from thatspecified in section 1926.750(b).Again, the potential for a tragic accident is evident from the facts ofthis case. Employees exposed to falls of 115 feet to the ground are toremain unprotected because there is an industry standard requiring fallprotection from falls to the interior of the building. Application ofsection 1926.105(a) would require that protection and is properlyapplied to fall hazards not covered by fall protection standardsspecifically applicable to the steel erection industry. Moreover, sucha result is not only inconsistent with Commission precedent, but alsoignores the Secretary’s official policy of supplementing the fallprotection standards of Subpart R with the general fall protectionstandards at 29 C.F.R. ? 1926.28(a) and ? 1926.105(a). [[1]]The record establishes that Respondent failed to comply with section1926.105(a). At the time of the inspection, four employees, calledconnectors, were installing cross-bracing and connecting horizontalsteel beams to vertical steel members. The steel frame was 325 feetlong and about 115 feet high. There were two floors, one at 50 feet,the other at 75 feet above ground level. Respondent’s procedures did notcall for the installation of exterior safety nets. The connectorsworked at the top of the structurewithout any form of fall protection, and thus were exposed to the hazardof falling 115 feet to the exterior ground level. Respondent’s failureto provide any of the fall protection devices listed in the citedstandard constituted a failure to comply with section 1926.105(a). _National Industrial Constructors, Inc_., 81 OSAHRC 46\/C2, 9 BNA OSHC1871, 1981 CCH OSHD ? 25,404 (No. 76-891, 1981). Accordingly, the itemshould be affirmed.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] Section 1926.750(b)(1)(ii) is contained in subpart R of theSafety and Health Regulations and is specifically applicable to thesteel erection industry.It provides:On buildings or structures not adaptable to temporary floors, and wherescaffolds are not used, safety nets shall be installed and maintainedwhenever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contactswith the surface of structures below.[[2\/]] Section 1926.105(a) is contained in subpart E — PersonalProtective and Life Saving Equipment, of 29 C.F.R. Part 1926 — Safetyand Health Regulations for Construction. It 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.[[3\/]] 29 C.F.R. ? 1910.5(c)(1) reads, in relevant part, as follows:If a particular standard is specifically applicable to a condition,practice, means, method, operation, or process, it shall prevail overany different general standard which might otherwise be applicable tothe same condition, practice, means, method, operation, or process . . . .[[1]] _Falling Hazards to the Exterior of Buildings_. For all types ofconstruction, including steel erection, exterior falling hazards shallbe cited under 1926.28(a) when the potential falling distance is 10through 25 feet and under 1926.105(a) when the potential fallingdistance is greater than 25 feet.OSHA Instruction STD 3-3.1 (July 18, 1983), paragraph 6.3.b, reported atCCH ESHG, 1982-1983 Developments, ? 12,855 at p. 17,166.”