“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-1844 FOREST PARK ROOFINING COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 31, 1980DECISIONBEFORE CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge J. Paul Brenton is before the Commissionfor review under section 12(j)[1] of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ??\u00a0651?678 (?the Act?). The issue iswhether the judge erred in vacating a citation for a serious violation issuedto the Respondent, Forest Park Roofing Co. (?Forest Park?). The citationalleged that Forest Park failed to comply with the standard at 29 C.F.R. ?1926.28(a),[2]or, in the alternative, the standard at 29 C.F.R. ? 1926.105(a),[3] by failing to provided fallprotection for its employees, who were engaged in roof construction.[4]I??????????? Thecitation was issued as a result of the Secretary?s inspection of theRespondent?s worksite on November 4 and 5, 1975. Respondent was installing tarroofing on the flat roof of a three-story office building under construction inStone Mountain, Georgia. The roof was 27 feet above the ground. At the time ofthe inspection, according to the compliance officer, the employees ?wereactually packing up to go home.? At times, three to four of its employees wereworking within one foot of the edge of the roof. There were no guardrails,safety nets, or other means of fall protection around the perimeter of theroof, and the employees were not wearing or provided any personal protective equipment.The Respondent knew of these conditions.??????????? Atthe hearing, the compliance officer testified as to the feasibility of safetybelts, lifelines, and safety nets. He testified that in his opinion[5] upright steel memberscould be welded to the steel structural beams on the periphery of the roof;that lifelines could be attached to and strung between the welded uprightmembers above the point of operation; and that the roofers could work withtheir safety belts connected to the lifelines by six-foot lanyards. Thecompliance officer testified that the welding of the structural steel beamscould be done from ladders properly secured in compliance with OSHA standards.??????????? WilliamHigdon, Forest Park?s president, was its sole witness. He testified that he wasnot aware of any method of using safety belts and lifelines or other means offall protection on the roof in question. He also testified that lifelines couldcause employees to trip into buggies of asphalt, which might fatally burn them.Mr. Hidgon said, with regard to the roof welding, ?a contractor is not going toallow it, the owners are not going to allow it, and you just plain not going tobe able to do it.? He testified that approximately four roofers quit a previousjob when he required lifelines. According to Higdon, they said they would notrisk tripping over the lines and perhaps landing in hot asphalt. Higdontestified that if an employee transporting asphalt fell over the edge whileattached to a lifeline, the asphalt might pour over him and kill him beforehelp arrived. The compliance officer testified, however, that tripping hazardscould be averted by having employees unhook their lanyards from the lifelinewhen they have to change position.??????????? Regardingthe feasibility of safety nets, the compliance officer testified that theycould be installed by attaching brackets to the existing structure andsupporting the safety nets from the brackets and cables secured to thestructure. Mr. Higdon argued that greater hazards might be caused by the use ofsafety nets because employees would have to spend substantial amounts of timeputting them up and taking them down while being exposed to the very hazardsnets are designed to prevent. He testified that he believed other trades wouldnot permit his company to erect nets that would get in their way.??????????? Regardingother methods of protection, Mr. Higdon testified that catch platforms couldnot be erected because they would interfere with the work of other trades andbecause they would be prohibitively expensive. He argued that guardrails couldnot be attached to the roof?s edge. Mr. Higdon, however, never talked to anysafety experts, his general contractor, or anyone else specifically aboutavailable methods of fall protection.??????????? JudgeBrenton vacated the citation and the $600 proposed penalty on two grounds.[6] First, he held thatneither standard used as the basis for the Secretary?s citation applies to flatroofs. Second, he held that the evidence does not demonstrate a violation, evenif the standards are applicable.??????????? Thejudge found that the use of lifelines and safety belts would involve greaterhazards than the Respondent?s present method of operating and that they wereneither feasible nor practical in the circumstances. He concluded that workerson flat roofs are not required to wear safety belts, lanyards, and lifelinesunless there is an ?appropriate pre-existing anchorage lifeline system? forthat purpose.??????????? Withrespect to safety nets, the judge found that they also could not be installedwithout subjecting employees to greater hazards. He found that the roofingindustry custom and practice is not to use safety belts or the other suggestedsafety devices in similar circumstances. The judge also found that the variousalternative safety devices listed in section 1926.105(a) were impractical. Heconcluded that catch platforms are exempted from use on flat roofs by section1926.451(u)(3) and that they also would subject employees to greater fallinghazards during installation. The judge found that ladders and temporary floorsalso would be impractical and would create greater hazards. As to scaffolding,he stated that he did not know how it could be used without creating greaterhazards.??????????? TheSecretary petitioned for review of the judge?s decision on a number of grounds.In the petition he argues that both of the cited standards apply to the workingconditions on the flat roof in question. He also argues that an industry doesnot ?exempt itself from the application of a standard solely on the basis of?industry practice.? The Secretary contends that it is not his burden to provethat a practicable means of compliance exists under either of the citedstandards. He specifically disagrees with the Commission?s assignment of thatburden to him in Frank Briscoe Co., 76 OSAHRC 129\/A2, 4 BNA OSHC 1729,1976?77 CCH OSHD ? 21,162 (No. 7792, 1976), for cases involving section1926.28(a). He contends that it is the Respondent?s burden to show as an affirmativedefense that compliance with the standards is impossible. Notwithstanding thatcontention, the Secretary excepts to the judge?s finding that the use of safetynets, safety belts, safety lines, or the alternative protective devicesmentioned in section 1926.105(a) was impractical. Finally, he argues thatForest Park did not show that compliance with either of the cited standardswould involve greater hazards than its existing practices, that alternativemeans of protection were unavailable, or that a variance application would beinappropriate. Thus, the Secretary contends that the judge erred in dismissingthe citation and proposed penalty. Forest Park has made no submissions onreview.II??????????? Subsequentto the judge?s decision, the Commission has determined that both section1926.28(a) and section 1926.105(a) are applicable to working conditions on flatroofs. John?s Roofing & Sheet Metal Co., 78 OSAHRC 57\/E8, 6 BNA OSHC1792, 1978 CCH OSHD ?\u00a022,857 (No. 76?1140, 1978) (applicability of section1926.28(a)); Hamilton Roofing Co., 78 OSAHRC 57\/C1, 6 BNA OSHC 1771,1978 CCH OSHD ? 22,856 (No. 14968, 1978) (applicability of section1926.105(a)). Thus, we turn to the merits of the citation.??????????? TheCommission recently has held that in determining whether a hazardous conditionexists within the meaning of section 1926.28(a), the question to be answered iswhether a reasonable person familiar with the factual circumstances surroundingthe allegedly hazardous condition, including any facts unique to the Respondent?sindustry, would recognize a hazard warranting the use of personal protectiveequipment. Although industry custom and practice are useful points of referencewith respect to whether a reasonable person familiar with the circumstanceswould recognize a hazard requiring the use of personal protective equipment,they are not controlling. S & H Riggers & Erectors, Inc., 79OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ? 23,480 (No. 15855, 1979), appealdocketed, No. 79?2358 (5th Cir., June 7, 1979.)[7] In S & H Riggers,the Commission held that where the Secretary alleges noncompliance with section1926.28(a), he has the burden of (1) establishing employee exposure to ahazardous condition requiring the use of personal protective equipment and (2)identifying the appropriate form of equipment to eliminate the hazard.??????????? Here,the evidence shows that Forest Park?s employees were working within one foot ofthe edge of the flat roof, 27 feet above the ground, without any fallprotection. The Secretary?s compliance officer identified safety belts andlifelines as an appropriate form of protection against the hazards. Hetestified that his suggested means of protection, welding upright steel piecesalong the roof?s edge with attachments of lifelines, could be accomplished fromladders in compliance with OSHA regulations and would abate the fall hazards.The Secretary thus has made a sufficient initial showing that a reasonableperson knowing the pertinent facts would have recognized a hazard warrantingthe use of personal protective equipment. He has shown that the Respondent?semployees were exposed to an obvious fall hazard and has identified anappropriate means of personal protective equipment to abate the hazards.III??????????? Atthe hearing before Judge Brenton, Forest Park submitted evidence relevant tocertain affirmative defenses with respect to the alleged noncompliance withsection 1926.28(a). Specifically, the evidence submitted goes to theaffirmative defenses of greater hazard and impossibility of compliance. Respondentalso asserted, as a defense, that it generally did not have the necessarycontrol over the violative condition.??????????? Toestablish a greater hazard defense, a respondent must prove that (1) compliancewith the standard would have diminished rather than enhanced employee safety,(2) alternative means of protecting the employees were unavailable, and (3) avariance application would have been inappropriate. S & H Riggers,supra. To establish the defense of impossibility, whether of compliance orperformance, an employer must prove that (1) compliance with the requirementsof the cited standard was either (a) functionally impossible or (b) would haveprecluded performance of required work, and (2) that alternative means ofemployee protection were unavailable. M. J. Lee Construction Co., 79OSAHRC 12\/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ? 23,330 (No. 15094, 1979).??????????? Turningto the greater hazards defense, we note Forest Park?s argument that safetybelts and safety lines would create a greater hazard because they would causeemployees to trip into hot asphalt and be seriously or fatally burned. Also,there was testimony that a person falling over the edge while attached to alifeline could be fatally injured if hot asphalt spilled on him. The judgestated that hooking and unhooking safety lines at the roof?s edge as necessaryduring the work would expose employees to falling hazards, and that the initialwelding of the stanchions to which the safety belts would be attached wouldcreate greater falling hazards than Respondent?s present method of operating.??????????? Wefind that the evidence is insufficient to establish the existence of a greaterhazard. The compliance officer stated that tripping hazards such as thosementioned by Forest Park could be averted by having the employees unhook whennecessary to change position at the roof?s edge.[8] Such maneuvers might becumbersome, but there is no indication that they could not be accomplishedsafely. Also, the possibility that a person might fall over the edge whileattached to a lifeline and be killed or injured by having hot asphalt spill onhim must be considered minimal.??????????? Regardingthe fall hazards associated with hooking and unhooking safety lines at theroof?s edge, we find that the brief, conscious moments of exposure while hookingand unhooking would be less hazardous than performing roofing work near theedge with no protection, and there is no evidence to the contrary. Finally, asto the hazards associated with initial welding of the stanchions, we note thatthe compliance officer testified that the welding of the stanchions could bedone from ladders in compliance with OSHA standards. The evidence does notindicate that the hazards of welding stanchions and then tying off to themduring roofing work are greater than those of working without any personalprotective equipment. We conclude that the evidence does not support thevarious arguments that the use of safety belts and safety lines would creategreater hazards than respondent?s practices.??????????? Althoughthe Respondent argued vigorously that safety belts and lifelines would not befeasible during the roofing work, there is no evidence that the use of a safetybelt system such as that described by the compliance officer would befunctionally impossible or would preclude performance of required work.Therefore, Forest Park?s assertions do not meet the initial test of theaffirmative defense of impossibility.??????????? ForestPark also argues that it generally did not have sufficient control over theviolative condition to install a safety belt and lifeline system because thegeneral contractor and the other trades would not permit it to install such asystem. In a case involving a multi-employer construction site, the employerhas the opportunity to demonstrate that it did not create the hazard, nor didit control the hazard such that it realistically had the means to rectify thecondition in the manner contemplated by the cited standard. Once the employerestablishes that it neither created nor controlled the hazardous condition, itmay affirmatively defend by showing either (a) that its employees who hadaccess to the hazards were protected by means of realistic measures taken as analternative to literal compliance with the cited standard, or (b) that it didnot have, nor with the exercise of reasonable diligence could have had, noticethat the conditions were hazardous. Anning-Johnson Co., 76 OSAHRC 54\/A2,4 BNA OSHC 1193, 1975?76 CCH OSHD ? 20, 690 (Nos. 3694 & 4409, 1976); GrossmanSteel & Aluminum Corp., 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975?76 CCHOSHD ? 20,691 (No. 12775, 1976).??????????? WhileRespondent has argued generally that the general contractor and other trades onthe worksite would not permit it to install a safety belt and lifeline system,the record does not establish this general claim as a fact. Even assumingarguendo that Forest Park did not have sufficient control over the worksite toinstall a safety belt and lifeline system, the evidence still is insufficientto support the Anning-Johnson, Grossman Steel affirmativedefense. Forest Park?s president admitted that performing roofing work near aroof?s edge is hazardous. Thus, it may not defend on the basis that it did nothave notice of the hazards. Also, the record is devoid of any evidence thatForest Park took realistic alternative steps to protect its employees or thatsuch alternatives were unavailable. Forest Park?s president testified thatcatch platforms and guardrails could not be used, and that safety nets wouldnot be permitted by the other trades. He also testified, however, that he hadnever talked to anyone, including the general contractor, about availablemethods of fall protection. For the most part, his testimony regarding whatcould be done and could not be done was based on his own assumptions.[9]??????????? At aminimum the Respondent should have asked the general contractor to provide thenecessary protection. Bill C. Carroll Co., 7 BNA OSHC 1806, 1979 CCHOSHD ? 23,940 (No. 76?2748, 1979); J. H. Mackay Electric Co., et al., 78OSAHRC 77\/B10, 6 BNA OSHC 1947, 1978 CCH OSHD ? 23,026 (Nos. 16110 & 16111,1978).[10] Since Forest Park wasaware of the hazards involved in performing roofing work near the roof?s edge,and since it failed to take realistic measures as an alternative to literalcompliance in order to protect its employees, it would have been unable to sustainthe Anning-Johnson, Grossman Steel defense in any event. SeeBill C. Carroll Co., supra; J. H. Mackay Electric Co., supra. Thus,the evidence is insufficient to sustain any affirmative defenses to the section1926.28(a) item, and a violation of the Act has been made out with respect tothat charge.??????????? TheSecretary alleged in the alternative that Forest Park failed to comply withsection 1926.105(a), because it did not provide safety nets or the other formsof fall protection referred to in that standard.[11] That charge was based onthe same conditions as the section 1926.28(a) charge. Since the Secretarypleaded noncompliance with the two sections, sections 1926.28(a) and 1926.105(a), in the alternative, and since we have sustained the allegation of noncompliancewith section 1926.28(a), we will dismiss the item alleging noncompliance withsection 1926.105(a) in circumstances of this case. This action is properbecause the Commission has held that section 1926.105(a) is not morespecifically applicable to the situation presented here than is section1926.28(a). Diamond Roofing Co., February 29, 1980 (No. 76?3653).IV??????????? Regardingthe appropriate penalty for the section 1926.28(a) item, a number of ForestPark?s employees worked close to the roof?s edge and a 27-foot fall to theground, which was cluttered with construction debris, would likely haveresulted in serious injury or death. The chance of a fall from this roof wasrelatively small, however, based on the compliance officer?s testimony. Also,given the possible difficulties indicated by the record in employing a safetybelt system or other fall protection system on this roof, we find nosubstantial reason to question the respondent?s good faith, even though it tookno steps to provide fall protection. The compliance officer testified that thiswas Forest Park?s first OSHA inspection and that Forest Park is a smallemployer, with less than 20 employees. We conclude that in the circumstances apenalty of $200 is appropriate.??????????? Accordingly,we affirm a violation of the Act for failure to comply with section 1926.28(a)and assess a $200 penalty for the violation. The item alleging, in thealternative, noncompliance with section 1926.105(a) is dismissed for thereasons given herein.?It is so ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: MAR 31, 1980?BARNAKO, Commissioner, Concurring:??????????? Iagree with my colleagues in finding that Forest Park Roofing Company violated29 C.F.R. ? 1926.28(a)[12] by failing to require itsemployees to wear appropriate personal protective equipment. However, myanalysis differs concerning interpretation of ? 1926.28(a) and applicability ofthe impossibility, greater hazard, and Anning-Johnson\/Grossman Steeldefenses to an alleged violation of that standard.??????????? Myviews concerning establishment of a violation of 29 C.F.R. ? 1926.28(a) are setforth in my concurring opinion in S & H Riggers & Erectors, Inc.,79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ? 23,480 (No. 15855, 1979), appealdocketed, No. 79?2358 (5th Cir. June 7, 1979). As I noted there, I wouldfind that a hazard within the meaning of ? 1926.28(a) exists if a reasonableperson familiar with the cited employer?s industry would recognize the citedcondition as constituting a hazard. Here, Forest Park?s employees, who wereconstructing a flat roof of a building, worked at times at the edge of the rooftwenty-seven feet above the adjacent ground. No fall protection of any type wasprovided. I find that these circumstances present an obvious fall hazard withinthe meaning of ? 1926.28(a). Martin-Tomlinson Roofing Co., 7 BNA OSHC2122, 2126, 1979 CCH OSHD ? 24,167 (No. 76?2339, 1980) (concurring opinion); HurlockRoofing Co., 79 OSAHRC 93\/A2, 7 BNA OSHC 1867, 1873, 1979 CCH OSHD ? 24,006(No. 14907, 1979) (concurring opinion); J. W. Conway, Inc., 79 OSAHRC75\/E1, 7 BNA OSHC 1718, 1721, 1979 CCH OSHD ? 23, 869 (No. 15942, 1979)(concurring opinion); Voegele Co., 79 OSAHRC 76\/A2, 7 BNA OSHC 1713,1717, 1979 CCH OSHD ?\u00a023,860 (No. 76?2199, 1979) (concurring opinion).??????????? As Ialso noted in S & H Riggers, supra, an additional element inestablishing a violation of ? 1926.28(a) is demonstrating that another standardcontained in 29 C.F.R. Part 1926 indicates the need for using the protectiveequipment which the Secretary asserts should have been used by Respondent?semployees. In this case, 29 C.F.R. ? 1926.104 establishes specifications forsafety belts, lanyards, and lifelines and thereby places employers on noticethat use of such equipment constitutes an appropriate means of protectingagainst fall hazards. Thus, fall hazards for which such equipment providesappropriate protection may be cited under ? 1926.28(a).??????????? Finally,unlike my colleagues, I believe that to establish a violation of ? 1926.28(a),the Secretary must demonstrate that there is a feasible means of protectingagainst the cited hazard through the use of personal protective equipment. Indetermining whether the use of personal protective equipment is feasible, Iwould consider evidence which normally bears on the affirmative defenses ofgreater hazard or impossibility as relating to the issue of feasibility. S& H Riggers, supra; cf., Royal Logging Co., 79 OSAHRC 84\/A2, 7BNA OSHC 1744, 1751, 1979 CCH OSHD ? 23,914 (No. 15169, 1979) (asserted defenseof greater hazard regarded as bearing on issue of feasibility in case broughtunder ? 5(a)(1) of Act).[13] Likewise, while mycolleagues regard Forest Park?s contention that it lacked control over thealleged violative condition as an assertion of the multi-employer constructionworksite defense articulated in Grossman Steel and Aluminum Corp., 76OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975?76 CCH OSHD ? 20,691 (No. 12775, 1976) and Anning-JohnsonCo., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975?76 CCH OSHD ? 20, 690 (No.4409, 1976), I would view it instead as bearing on the issue of feasibility.Forest Park?s contention that it lacked control over the means necessary toeffectuate abatement of the alleged violation clearly relates to thefeasibility of the method urged by the Secretary to protect against the citedhazard.??????????? However,once the Secretary shows that the means of abatement he favors can be used onRespondent?s worksite and that its use would provide protection against thehazard in issue, I would place the burden on the employer to rebut this showingby demonstrating that use of the recommended personal protective equipment willcause consequences so adverse as to render the method of abatement infeasibleor that it lacks control to implement the Secretary?s recommendation. Underthis allocation of the burden of proof, the employer need not show that avariance application would be inappropriate or that alternative methods ofabatement could not be used, as it would otherwise be required to do in a caseinvolving the impossibility and greater hazards defenses. S & H Riggers,supra; cf. Royal Logging Co., supra. Nor must the employer show that itsemployees were protected by realistic measures taken as an alternative to theabatement method recommended by the Secretary, as would be required toestablish the Anning-Johnson and Grossman Steel defense.??????????? TheSecretary demonstrated a feasible means of protection here through thecompliance officer?s testimony showing that a safety belt system could beinstalled and utilized to provide fall protection to Forest Park?s employees.The compliance officer testified that steel uprights could be welded to theroof edge and a lifeline strung between the uprights. Roofers could wear safetybelts and hook the lanyards of their belts to the lifeline when working withinsix feet of the roof edge.??????????? AlthoughForest Park objected to this system on several grounds, it failed to show thatthe system would be infeasible. Forest Park argued that greater danger would bepresented by use of safety belts than by providing no fall protection at all.Forest Park?s president testified that safety lines posed a tripping hazard toroofers and might cause them to fall into containers of hot tar on the roof. Healso asserted that a roofer who fell from the edge while wearing a safety beltmight have hot tar spilled on him while suspended from the safety line.Additionally, he argued that the task of erecting uprights for the lifelinesand the necessity of walking to the roof edge to hook the lanyard to thelifeline would subject employees to greater exposure to fall hazards than wouldpermitting the roofers to work on a roof without protection.??????????? However,contrary to Forest Park?s contentions, it is clear that the safety belt systemwould not create a significant tripping hazard because the steel uprights couldbe made high enough that roofers wearing safety belts would be tied off abovethe point of operation. Thus, their lanyards would not be close enough to theroof surface to present a tripping hazard. Moreover, employees who unhookedtheir lanyards in order to work in the interior area of the roof need not allowtheir lanyards to drag on the ground and thereby present a tripping hazard;rather, they could simply tuck the loose end of the lanyards into their belts.The compliance officer testified that this was a common practice amongemployees who regularly wore safety belts. Moreover, the likelihood that anemployee would fall from the roof edge and have hot tar spilled on him isremote.??????????? As toexposure to a fall hazard while constructing the lifeline supports, the recordestablishes that an employee erecting the steel uprights could perform thistask while standing on a ladder at the level of the roof edge. Working in thismanner would comply with OSHA standards as long as the ladder was secured tothe building structure or held by an employee at its base. Moreover, the amountof additional exposure to the roof edge required of employees in order toattach their lanyards to the lifeline does not appear to be substantial.[14]??????????? ForestPark also contended that the general contractor and building owner would notpermit it to weld steel uprights to the roof perimeter. However, Forest Park?spresident admitted that this was merely an assumption on his part, and he hadnot asked anyone for permission to erect steel uprights.??????????? Thus,despite its numerous objections to the safety belt system proposed by theSecretary, Forest Park failed to rebut the Secretary?s showing that this systemwould provide a feasible method of protecting Forest Park?s employees. Itherefore concur in affirming the citation against Forest Park for violation of29 C.F.R. ? 1926.28(a).\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-1844 FOREST PARK ROOFINING COMPANY,??????????????????????????????????? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 11, 1977DECISION AND ORDERAPPEARANCESStephen J. Simko, Jr., Esquire, Office ofthe Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf ofcomplainant\u00a0William H. Higdon, Pro se\u00a0J. Paul Brenton, Judge:STATEMENT OF CASE??????????? Complainantwithdrew [date not revealed on the record] his citation issued to respondentfor allegedly violating on November 4?5, 1975, the guardrail standard, 29C.F.R. 1926.500(d)(1), at its flat roofing construction site, the erection of athree-story office building, in Stone Mountain, Georgia. Five months thereafterhe issued a second citation alleging a serious violation of the personalprotective equipment standard, 29 C.F.R. 1926.28(a), and\/or, in the alternativethe safety net standard, 29 C.F.R. 1926.105(a), at the same location and on thesame dates. A $600.00 penalty was proposed by complainant for these allegedviolations which respondent contested together with the citation.??????????? Thisaction and conduct by the parties was pursuant to the Occupational Safety andHealth Act of 1970 (hereinafter referred to as the ?Act?).??????????? Aftera complaint, an answer, and a stipulation were filed by the parties, the casecame on for hearing in Atlanta, Georgia, on July 26, 1976.REASONABLE PROMPTNESS ISSUE??????????? Althoughrespondent did not affirmatively plead this issue as a defense, it did raisethe issue on the record without any objection from complainant. Respondentmaintains that a five month lag from the inspection to citation is unfair aswell as unreasonable. Complainant?s response consisted merely of asserting thathe was bound by the Act and what he sees in his administrative techniques.??????????? Thatkind of response is nugatory. If he is bound by the Act, he certainly failed toissue the citation with reasonable promptness. Moreover, being bound byadministrative techniques was not by the evidence related in any way toexceptional circumstances causing the delay.??????????? TheReview Commission?s position on this issue has shifted with each case it hasdecided. Presently, it appears that a respondent must show prejudice because ofthe delay. It is obvious from the record that complainant made no showing ofexceptional circumstances which could or did cause the delay. On the other hand,it is also obvious that respondent is prejudiced because the withdrawal of thefirst citation took away his defense of the inapplicability of the standardalleged to its detriment and disadvantage by complainant thrusting upon it thetask of making a defense against the inapplicability of two other separate anddistinct standards. But this kind of prejudice, in all common probability isnot within the contemplation of the Review Commission. Apparently respondentmust show actual prejudice to his detriment in defending because of the delay,such as, the loss of some substantial or favorable right affecting the defense.??????????? Theenforcement action and conduct of the complainant is probably unfair, ascharacterized by respondent. Complainant is having difficulty ascertaining themethod or process, if any there be, which should be utilized by the flatroofing contractor which affords utility and at the same time is feasible withrespect to the guarding of roofers from a fall off the roof?s edge. It isofficially noticed that complainant has and is trying to enforce the personalprotective equipment standard, the life saving safety net standard where theheight of the roof is more than 25 feet, and the general duty clause, section5(a)(1) of the Act, after the Fifth Circuit Court of Appeals eliminated theguardrail standard. Complainant is painting with a broad brush because there isa chance of a fall, however slight, thus imposing upon the employer the duty totake some means of guarding against it. Complainant is unconcerned with themeans and holds that in order for the flat roofing contractor to avoid acitation he must under any and all conditions provide appropriate protection,regardless of the feasibility and likely utility of the means he chooses toimpose.??????????? Thus,it is understandable that respondent feels it has been treated unfairly. Butunfairness in administrative proceedings must be characterized by the evidenceas irregular or unethical practice tantamount to capriciousness to justify avacation of the citation on that basis standing alone.??????????? Anunexplained five month delay in issuing the citation is unconscionable andunreasonable. And, it is unfair to abandon the first charge and imposesanctions on different charges five months later. But, without a showing ofdetrimental prejudice, complainant, according to the latest Review Commissiondecisions, is entitled to his day in court.THE CHARGE??????????? Thecitation citing regulations under ? 1926.28(a) and ? 1926.105(a), describes thealleged violation as follows:\u00a0Failed to require the use of protectiveequipment as specified in 1926.104, in all operations where there is anexposure to hazardous conditions in that no fall protection of any kind wasprovided the employees working near the edge of the roof exposing them to thehazard of a 27 foot fall.? (or in the alternative)?Failed to provide safety net when the workplace was more than 25 feet above the ground and where the use of ladders,scaffold, catch platforms, safety lines or safety belts was impractical, inthat no fall protection of any kind was provided the employees working near theedge of the roof, exposing them to the hazard of a 27 foot fall.\u00a0??????????? Thestandards alleged to have been violated provide:? 29 C.F.R. 1926.28(a)The employer is responsible for requiringthe wearing of appropriate personal protective equipment in all operationswhere there is an exposure to hazardous conditions or where this part indicatesthe need for using such equipment to reduce the hazards to the employees.??29 C.F.R. 1926.105(a)?Safety nets shall be provided whenworkplaces are more than 25 feet above the ground or water surface, or othersurfaces where the use of ladders, scaffolds, catch platforms, temporaryfloors, safety lines, or safety belts is impractical.?FACTS??????????? Theundisputed facts are:??????????? 1.Respondent conceded that it is engaged in a business affecting commerce.??????????? 2.Three to four roofers periodically engaged in roofing operations, not to exceeda total of four hours over a four-day period, during which no one of them wascloser than one foot to the roof?s edge.??????????? 3.The roof top was flat and 27 feet above the earth which was covered with somedebris.??????????? 4.There was no structural system provided around the perimeter of the roof toprevent a fall or an injury if a fall occurred.??????????? 5.Safety belts, lanyards, and lifelines were not required to be worn by theroofers.??????????? 6.Respondent knew the existing conditions under which its employees worked uponthe flat roof.??????????? 7.Various items protruded through the roof top at irregular locations. Workmaterials and equipment were in place upon the roof.??????????? 8.Other trades were engaged in the performance of their work on the roof as wellas on all other parts of the building.ISSUES??????????? WhetherBrennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974),stands for the proposition that a flat roofing contractor who fails to utilizea safety net in lieu of one of the safety devices enumerated in 29 C.F.R.1926.105(a) is amenable to sanctions.??????????? Whetherthe preponderance of the evidence and propositions of law and authoritiesestablishes the application of the personal safety equipment standard to flatroofs requiring the wearing of safety belts, lanyards, and lifelines.??????????? Ifthe regulations have application to flat roofs, was either or both regulationsviolated???????????? Ifthere is a violation, what penalty, if any, is appropriate?LAW AND OPINION??????????? Thecitation should be vacated because neither alleged standard is applicable tothe flat roof depicted by the evidence in this case. Moreover, even if one orboth could or should be so adjudged the evidence of record will not sustain aviolation of either regulation.??????????? Complainanttends to rest his case for affirmance of the citation upon the stipulation ofthe parties and his evidence in chief. In effect complainant claims respondentstipulated itself right out of court. The admission of failure to utilize anymethod of protection to reduce injury from a fall off the edge of a flat roofdoes not in and of itself prove a violation of either standard alleged.Respondent denied that it was in violation of either standard alleged and theissues were raised and tried on the record without objection.??????????? 29C.F.R. 1928(a)??????????? Thisstandard has been interpreted by the Review Commission to mean that safetybelts tied off to lifelines are only required where this is shown to be apractical and feasible means of fall protection. Secretary v. Frank BriscoeCo., OSHRC Docket No. 7792 (10\/4\/76); Secretary v. Crawford SteelConstruction Co., OSHRC Docket No. 9622 (12\/7\/76).??????????? TheCommission has held in those cases that complainant is duty bound to show thatthe use of safety belts is an appropriate means of fall protection.Specifically, that complainant must allege the specific measures the citedemployer should have taken to avoid a citation and prove the feasibility andutility of those measures.??????????? Herecomplainant under this regulation charged respondent with failure to use safetybelts, lanyards, and lifelines which by stipulation was admitted. But not untilcross-examination and redirect examination of complainant?s sole witness, Mr.Stephen A. Kramer, the inspection and compliance officer in this case, wasthere any attempt to show how this kind of personal protective equipment couldhave been utilized. Kramer proposed that each perpendicular steel beam aroundthe entire perimeter of the building be extended, by welding on a piece ofsteel, to which a cable could be circumscribed upon which each employee couldtie his lifeline. This system would require the cable to be above the point ofoperation and perpendicular to the extreme edge of the roof thereby bringingthe employee closer to the roof?s edge each time he was required to hook up orunhook his lifeline than in the performance of installing roofing materials onefoot from its edge. Moreover, it appears self-evident from the evidence thatthe erection and installation of such a system would expose the three to fouremployees of respondent to a greater hazard of falling for a much longer periodof time than a total of four man-hours. In such a situation they wouldnecessarily have to work at the extreme edge in erecting and welding the beamsand stringing and attaching the cable. Mr. Kramer had no idea the period oftime that any one of the roofers was within the danger zone of the roof?s edgeduring the progress of their work. Thus, it is undisputed that it was a totalof four man-hours. This would indicate that not to exceed 3?1\/4 percent of thetotal man-hours [92 to 128 inferred] was required of the roofers within thedanger zone. There was no other anchorage or structural member to which alifeline could be secured.??????????? Therewas just no feasible or practical means by which this respondent could utilizethe personal protective equipment which complainant claims it should have used.Further, to have employed the suggested means would have exposed the employeesto greater and increased risks of falling. Therefore, that equipment isinappropriate and impractical under the facts and circumstances of this case.??????????? TheReview Commission has not addressed itself to the issue of whether the standardrequiring the wearing of personal protective equipment in the nature of safetybelts, lanyards, and lifelines is applicable to flat roofs. It is observed, however,that the Commission has recently granted a roofer?s petition for review on thatissue among others. Secretary v. Hurlock Roofing Co., OSHRC Docket No.14907 (11\/20\/75). Nevertheless, the confrontation here is immediate and shouldbe decided. Therefore, this tribunal holds that roofers engaged in theirordinary work practices upon a flat roof are not required to wear safety belts,lanyards, and lifelines unless there is on that roof an appropriatepre-existing anchorage lifeline system, which the roofers can utilize withoutbeing subjected to greater or increased hazards than otherwise exist withoutthem, with respect to the risk involved while engaged in working within thedanger zone of the edge of the roof.??????????? 29C.F.R. 1926.105(a)??????????? Complainantis on a collision course with the roofing contractors whenever and wherever hefinds one engaged in roofing operations on a flat roof.??????????? Followingthe demise of 29 C.F.R. 1926.500(d)(1) for a flat roof violation he has triedto enforce the personal protective equipment standard upon them when foundworking on a flat roof. In this case, apparently being somewhat tremulous as tohis success with 29 C.F.R. 1926.28(a), he has advanced another step and wouldrequire respondent to erect a system of safety nets around the perimeter of thebuilding in the event safety lines and safety belts prove to be impractical.This kind of situation presents an enigmatic anomaly. One minute complainantrequires the wearing of safety belts and lifelines and the next minute he in effectsays they are impractical thus he requires the erection and installation ofsafety nets under the same facts and circumstances. That kind of action is, atthe very least, perplexing and contradictory.??????????? Infact and in truth complainant unequivocally alleged and charged in his citationthat the use of safety lines and safety belts was practical and in the nextbreath that it was impractical. This is so because inherent in the charge under29 C.F.R. 1926.28(a) is the proposition that they are practical because theyare appropriate in the sense that the use is feasible. His language in thecharge under 29 C.F.R. 1926.105(a) is explicit.??????????? Thecitation should be vacated on the grounds of incongruity, however, thisconstraint is suppressed.??????????? SouthernContractors, supra, would appear to mandate under 29 C.F.R. 1926.105(a)either a safety net or one of the other safety devices listed in the regulationif there is a possibility of a fall from a workplace more than 25 feet inheight. Surely that court would not enforce that construction in a situationwhere the evidence would show each listed device impractical together with ashowing that safety nets are either impossible to use or that the use thereofis infeasible with no likely utility afforded. It would be absurd to believethat its decision was so conceived.??????????? In SouthernContractors, supra, the risk of a fall was from beams of one of the membersof a structural steel launching tower during dismantling operations. Theworkmen were engaged in working in open space. Similar conditions existed in CrawfordSteel Construction Co., supra. Steel erection or dismantling is normally anatural setting for the use of safety nets and is the kind of situation andcondition that the fashioners of ? 1926.105(a) must have had in mind. The pointis, why exempt the other listed safety devices which are mandated in otherstandards. For example, catch platforms in 29 C.F.R. 1926.451(u)(3) arerequired on a roof used as a work area if its slope is greater than 4 inches in12 inches without a parapet.??????????? Itthis case complainant strove to show how a system of safety nets could beinstalled but without effect. Kramer, the compliance officer, testifiedconcerning this situation as follows:Q Okay. Well, you also, in the alternativeshow that you could have used catch platforms. And they have the same problemin attaching catch platforms as they would in standing these steel beams up.That?s this particular Respondent.?A In on[c]e sense it would requirecoordination with the engineers and architects as to where to attach them.There was scaffolding on the site. A catch platform could have been built fromthe ground up, possibly, now.?Q You mean a mobile scaffolding or whatwould it be attached to on the building??A It?s a welded frame scaffold. Not moldedin the sense it didn?t have wheels on it.?Q I see. How would you employ[ee] that inthis kind of situation??A Let?s see. There?s the various netsystems.?Q To employ[ee] a net they?d have to builda frame work around the periphery of the building. That?s where the man goingto fall isn?t it? If he falls??A Yes sir.?Q The only way you could get a net outthere would be to build something to hold the net, then you?re going to have toattach it to something under the building. Isn?t that right??A There?s a system, Your Honor, where youattach a bracket at this level here (Pointing to an exhibit.) and there?sanother holding point and you stretch a cable down, the nets swing out from thesecond level here, and then there?s again attached down to another point at thebase of this column in the picture, that still would prevent a fall to theground.???????????? Thisexplanation may be characterized as ignoble. The witness switched from a catchplatform from the ground up to scaffolding to various net systems. Just howthese could be built and utilized by respondent without subjecting hisemployees to greater hazards is beyond comprehension.??????????? Itappears obvious that catch platforms are exempt by ? 1926.451(u)(3) withrespect to flat roofs. Moreover, the testimony of the respondent coupled withplain common sense demonstrates the futility of catch platforms because of thegreater and increased risks of falls over many hours from the top of the roofin the erection and installation of that device.??????????? Theuse of ladders was impracticable because the roof materials and equipment couldnot be handled from positions on the ladder. Moreover, working at that heightfrom a ladder would expose the roofers to longer period and a greater hazard offalling than working back from the roof?s edge on top.??????????? Installationof temporary floors, another exemption to safety nets, while not mentioned byeither party, would undoubtedly run into the same problems encountered with theother devices. That is, the increased exposure and greater risk involved inworking at the roof?s edge to install and anchor such a device. Moreover, thatkind of construction off the edge of a flat roof could not conceivably betermed a floor. All the more reason to believe that the safety net standardapplies to fall protection within a structure rather than on its periphery.??????????? Withrespect to the use of safety nets by this respondent in this kind of operationthe greater weight of the evidence shows conclusively that any suitable systemof safety nets that would safely snare an errant roofer, if he went over theroof?s edge, would require substantial more man-hours at heights up to and over25 feet and at the edge of the roof to erect and secure than the four man-hoursspent in normal roofing operations. Thus, subjecting the employees to greaterand increased risks of falling.??????????? Theevidence in this case fails to show that the use of safety nets, by thisrespondent under the facts and circumstances in evidence, would reduce the riskincident to the danger zone at the roof?s perimeter. In fact, the incident tothe same risk would be greater because of the longer period of exposure andworking on and at the extreme edge in hanging and securing the net system.Also, erecting a framework so the nets would be supported and extended at leasteight feet beyond the edge would require working in open space in assemblingthe framework and attaching the nets.??????????? Theevidence establishes that it is not flat roofing industry custom to utilizesafety nets or any other alleged safety device under the existing conditions.Also, that their use is neither practical nor feasible. This tribunalofficially notices that this negative custom is prevalent in the roofingindustry.??????????? Accordingly,it is concluded that ? 1926.105(a) does not have application to flat roofsunless the evidence shows that safety nets or any one of the other safetydevices listed in that regulation can be utilized without subjecting theroofers to greater and increased hazards.??????????? Finally,this tribunal would observe, in light of the foregoing discussion, that therationale of the decision in Langer Roofing & Sheet Metal Co., Inc. v.Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975), makes sense with respectto the application of regulations to roofing operations on flat roofs outsidethe scope of 29 C.F.R. 1926.451(u)(3). With due respect to the observation bythe court in Diamond Roofing v. Occupational Safety and Health Review Commission,528 F.2d 645 (5th Cir. 1976), the probative effect of Langer, supra,should emerge to greater heights as an authoritative source in resolving thecontradictory positions now occupied by the complainant. The point is, theSecretary of Labor having published in the Federal Register, 37 Fed. Reg. 233(Dec. 2, 1972), the fact that roofs with lesser slopes than 4 inches in 12inches were not covered by 29 C.F.R. 1926.451(u)(3) because such slopes did notpresent a substantial danger of falls, should not be permitted to chase afterthe flat roofer with other regulations which are suspect in their application.The view of the Secretary as published is undoubtedly an expression of the longstanding consensus of the fashioners of the regulations and the roofing industry.??????????? Thoseconclusions are supported by the proposition announced by the court in DiamondRoofing, supra, that because of the Secretary?s flexible regulationpromulgation authority structured in the Act, 29 U.S.C. ? 655(b) & (e); 29C.F.R. Part 1911, there is no need for the Secretary to press the limits of theregulations by judicial construction in an industrial area [roofing industry]presenting infinite operational situations.??????????? Concludingthere is no violation, penalty consideration is moot.CONCLUSIONS OF LAW??????????? 1.The Review Commission has jurisdiction to hear and decide this case.??????????? 2.Respondent neither violated 29 C.F.R. 1926.28(a) nor, in the alternative, 29C.F.R. 1926.105(a) as charged by the citation and complaint and as tried uponthe record as a whole.??????????? 3. 29C.F.R. 1926.28(a) and 29 C.F.R. 1926.105(a) are each inapplicable to a flatroof unless there is a preexisting system on or about that roof which permitsthe utilization of any one of the safety devices listed or referred to in thoseregulations without subjecting the employees, roofers, to greater or increasedhazards.ORDER??????????? It isOrdered that:??????????? Thecitation and notification of proposed penalty to be assessed be and each herebyis, vacated.?So ordered.?J. PAUL BRENTONJudgeDate: January 11, 1977?Atlanta, Georgia[1] 29 U.S.C. ?661(i).[2] Section 1926.28Personal protective equipment.(a)The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.[3] Section 1926.105Safety nets.(a)Safety nets shall be provided when workplaces are more than 25 feet above theground or water surface, or other surfaces where the use of ladders, scaffolds,catch platforms, temporary floors, safety lines, or safety belts isimpractical.[4] The direction forreview in this case was issued by former Commissioner Moran for the statedpurpose of determining whether the judge?s rulings on the cited standards werejustified by the law and the evidence. Neither party has indicated an interestin Commission review of any aspects of the judge?s decision except thosediscussed herein. Also, there is no compelling public interest warrantingfurther review of other aspects of the judge?s decision. Therefore, those otheraspects of the judge?s decision will not be considered on review. WaterWorks Installation Corp., 76 OSAHRC 61\/B8, 4 BNA OSHC 1339, 1976?77 CCHOSHD ? 20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21\/a2, 3BNA OSHC 2032, 1975?76 CCH OSHD ? 20,428 (No. 9507, 1976). Those portions ofthe decision are accorded the significance of an unreviewed judge?s decision. LeoneConstruction Co., 76 OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975?76 CCH OSHD ?20,387 (No.4090, 1976).[5] The complianceofficer was not tendered as an expert witness, but he is nonetheless anexperienced inspector.[6] In his decisionthe judge rejected Forest Park?s claim that the current citation was not issuedwith reasonable promptness as required under section 9(a) of the Act, 29 U.S.C.? 658(a), finding there was no actual prejudice to Forest Park?s case. Thatissue is not before us and will not be considered on review. See note 4, supra.[7] The judge foundthat it is roofing industry custom and practice not to use safety belts or anyof the other forms of protection suggested in ? 1926.105(a) in circumstancessuch as these. He also stated he was taking official notice of this custom. Anadministrative agency may take official notice not just of commonly knownfacts, but of technical or scientific facts that are within the agency?s areaof expertise. The scope of official notice extends in theory to those matterswithin the specialized knowledge of the agency. See NLRB v. Seven-UpBottling Co., 344 U.S. 344, 349 (1953); Cable Car Advertisers, ?17,019 (Nos. 354 & 480, 1973); See also 4 Mezines, et al., AdministrativeLaw, ? 25.01, pp. 25?2 to 25?5 (1979).Here, however, there was no supportgiven for the judge?s conclusion. The judge cited no evidence or authoritytending to establish a clear, consistent roofing industry custom and practicenever to wear safety belts or other means of personal protective equipmentwhile exposed to possibly fatal falls. Although we are aware that many roofingemployers in the past have failed to provide fall protection such as safetybelts and lifelines, we are not aware of any such uniform custom and practicein that industry, either now or in 1975. Therefore, we do not accept thejudge?s use of official notice regarding roofing industry custom and practice.Of course, industry custom and practice is not controlling in the analysis ofwhether ? 1926.28(a) is applicable in any event. S & H Riggers,supra.[8] As noted above,the compliance officer testified that the lifeline could be attached above thepoint of operation.[9] Mr. Hidgon talkedto the general contractor about standup walls, and was told he did not knowwhen they would be put up. There was no testimony, however, that Forest Parkmade any inquiry specifically about providing fall protection during theroofing work.[10] Merely speakingwith the general contractor is not in itself adequate to establish theaffirmative defense when there are other alternative means of protectionavailable, except in the case of minor violations, which is not the case here.It is incumbent on an employer at a multi-employer worksite, however, to atleast request abatement if there are no means available to it to physicallyprotect its employees from the violative conditions. McLean-Behm SteelErectors, Inc., 78 OSAHRC 54\/A2, 6 BNA OSHC 1712, 1978 CCH OSHD ? 22, 812(No. 76?2390, 1978); See J. H. Mackay Electric Co., supra.[11] Alternativepleading is permitted in our proceedings. Environmental Utilities Corp.,77 OSAHRC 40\/A2, 5 BNA OSHC 1195, 1977?78 CCH OSHD ? 21, 709 (No. 5324, 1977).[12] 29 C.F.R. ?1926.28(a) states the following:Personalprotective equipment.(a)The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.[13] OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651?678.[14] Forest Park alsoasserted that there was no feasible way to provide fall protection for theroofers in question without incurring great cost. However, Forest Park adducedno evidence of the cost of constructing a safety belt system and thus failed toshow the system was infeasible on this basis.”