“Docket No. 82-0612 SECRETARY OF LABOR,Complainant, v.DANIEL MARR & SON COMPANY, Respondent.OSHRC Docket No. 82-0612DECISIONBefore:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651- 678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).Daniel Marr & Son Company (\”Daniel Marr\”) is a steel erectionfirm that was engaged in the construction of the Turbine #2 Building at the SeabrookNuclear Power Plant in Seabrook, New Hampshire.\u00a0 Following an OSHA inspection of theSeabrook site, Daniel Marr was cited for a serious violation of two safety standards, 29C.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 feet longand about 115 feet high and had two floors at heights of 50 and 75 feet.\u00a0 Daniel Marrhad contracted to build this steel frame.\u00a0 At the time of the OSHA inspection, DanielMarr’s employees were observed working at the top of the steel frame, 40 feet above thefloor and 115 feet above the ground.\u00a0 As a matter of general procedure, Daniel Marrinstalled safety nets after the extension columns and cross bracing had been set.\u00a0 Nonets were in place at the time of the inspection.\u00a0 The Secretary of Labor issued atwo-part citation on the theory that Daniel Marr failed to provide interior fallprotection required under section 1926.750(b)(1)(ii) and failed to provide exterior fallprotection required under section 1926.105(a).Daniel Marr does not contest the judge’s finding that it violated the safety netrequirement of section 1926.750(b)(1)(ii) and that portion of the judge’s decision is noton review.\u00a0 Instead Daniel Marr, citing 29 C.F.R. ? 1910.5(c)(1),[[3\/]] contendsthat the steel erection standard at section 1926.750(b)(1)(ii) is specifically applicableto the cited conditions and precludes application of the general construction standard atsection 1926.105(a).\u00a0 On this basis, Daniel Marr contests the judge’s ruling that itcould be in violation of both section 1926.105(a) and section 1926.750(b)(1)(ii).We agree that Daniel Marr cannot be found in violation of both standards andvacate that portion of the citation alleging a violation of section 1926.105(a).\u00a0 In AdamsSteel Erection, OSHRC Docket No. 77-4238 (July 20, 1984), we held that section1926.750(b) is specifically applicable to the hazard of falling in the steel erectionindustry and that section 1926.105(a) may not be applied to require methods of fallprotection different from that specified in section 1926.750(b).\u00a0 It follows thenthat Daniel Marr cannot be found to have violated both standards.\u00a0 Accordingly, thatportion of the citation alleging a violation of section 1926.105(a) is vacated.FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARY DATED:\u00a0 JUL 20 1984CLEARY, Commissioner, dissenting:For reasons set forth in my dissenting opinion in Adams Steel Erection,OSHRC Docket No. 77-4238 (July 20, 1984), I dissent from the conclusion that, in the steelerection industry, section 1926.105(a) may not be applied to require methods of fallprotection different from that specified in section 1926.750(b).Again, the potential for a tragic accident is evident from the facts of thiscase.\u00a0 Employees exposed to falls of 115 feet to the ground are to remain unprotectedbecause there is an industry standard requiring fall protection from falls to the interiorof the building. Application of section 1926.105(a) would require that protection and isproperly applied to fall hazards not covered by fall protection standards specificallyapplicable to the steel erection industry.\u00a0 Moreover, such a result is not onlyinconsistent with Commission precedent, but also ignores the Secretary’s official policyof supplementing the fall protection standards of Subpart R with the general fallprotection standards 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).\u00a0 At the time of the inspection, four employees, called connectors, wereinstalling cross-bracing and connecting horizontal steel beams to vertical steel members.\u00a0 The steel frame was 325 feet long and about 115 feet high.\u00a0 There were twofloors, one at 50 feet, the other at 75 feet above ground level. Respondent’s proceduresdid not call for the installation of exterior safety nets.\u00a0 The connectors worked atthe top of the structurewithout any form of fall protection, and thus were exposed to the hazard of falling 115feet to the exterior ground level. Respondent’s failure to provide any of the fallprotection devices listed in the cited standard constituted a failure to comply withsection 1926.105(a).\u00a0 National Industrial Constructors, Inc., 81 OSAHRC 46\/C2,9 BNA OSHC 1871, 1981 CCH OSHD ? 25,404 (No. 76-891, 1981).\u00a0 Accordingly, the itemshould be affirmed.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 the Safety and HealthRegulations and is specifically applicable to the steel erection industry.It provides:On buildings or structures not adaptable to temporary floors, and wherescaffolds are not used, safety nets shall be installed and maintained whenever thepotential fall distance exceeds two stories or 25 feet.\u00a0 The nets shall be hung withsufficient clearance to prevent contacts with the surface of structures below.[[2\/]] Section 1926.105(a) is contained in subpart E — Personal Protectiveand Life Saving Equipment, of 29 C.F.R. Part 1926 — Safety and Health Regulations forConstruction.\u00a0 It provides:? 1926.105 Safety nets.(a) Safety nets shall be provided when workplaces are more than 25 feet above the groundor water surface, or other surfaces where the use of ladders, scaffolds, catch platforms,temporary floors, safety lines, or safety 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 over any different general standardwhich might otherwise be applicable to the same condition, practice, means, method,operation, or process . . . .[[1]] Falling Hazards to the Exterior of Buildings.\u00a0 For alltypes of construction, including steel erection, exterior falling hazards shall be citedunder 1926.28(a) when the potential falling distance is 10 through 25 feet and under1926.105(a) when the potential falling distance is greater than 25 feet.OSHA Instruction STD 3-3.1 (July 18, 1983), paragraph 6.3.b, reported at CCHESHG, 1982-1983 Developments, ? 12,855 at p. 17,166.”