“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3701 \u00a0 FRANKLIN R. LACY, (AQUA VIEW APARTMENTS) \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 OSHRC DOCKET NO. 3701January 30, 1981DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Thiscase has been remanded to the Commission by the United States Court of Appealsfor the Ninth Circuit. Usery v. FranklinR. Lacy, 628 F.2d 1226 (9th Cir. 1980).??????????? Respondent,Franklin R. Lacy (?Lacy?), was issued a citation alleging that he had violatedthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651?678, (?theAct?) by failing to comply with eight construction safety and health standardswhile he was constructing a building in Kirkland, Washington. Lacy filed atimely notice of contest and a hearing on the merits of the alleged violationswas conducted before Administrative Law Judge Garl Watkins. The judge dismissedthe citation holding that the Secretary of Labor (?the Secretary?) had failedto meet his burden of proving that Lacy was ?engaged in a business affectingcommerce? within the meaning of section 3(5)[1] of the Act. On review, adivided Commission affirmed the judge?s decision. 76 OSAHRC 44\/E10, 4 BNA OSHC1115, 1975?76 CCH OSHD ?20,617 (No. 3701, 1976). The Court of Appeals reversedthe Commission?s decision and remanded the case for further proceedings.??????????? Inasmuchas both the judge?s decision and the prior Commission decision found athreshold issue to be dispositive, the merits of the alleged violations werenot reached. The parties, however, had an opportunity to make a complete recordon the merits at the hearing before the judge. The Commission has the ultimateauthority to make findings of fact, Accu-Namics,Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976), and where, as here, the recordis sufficiently detailed and credibility is not an issue, see Asplundh TreeExpert Co., 78 OSAHRC 77\/E12, 6 BNA OSHC 1951, 1978 CCH OSHD ?23,033 (No.16162, 1978), the Commission can make the necessary findings of fact.I??????????? Lacy,the owner of Aqua View Apartments, was in the process of constructing a 13 unit?L? shaped apartment building consisting of three ?living levels? above one?parking level.? As a result of an inspection conducted by an OSHA complianceofficer, Lacy was issued one citation which alleged eight other than seriousviolations. Lacy denied all of the violations.??????????? Item1 of the citation alleged that Lacy failed to comply with the standard at 29C.F.R. ?\u00a01926.25(a)[2] in that a passageway on thesecond level of the building under construction had not been cleared of scraplumber and other debris. The compliance officer testified that the passagewaycontained piles of lumber as well as ?nails and other debris.? Lacy testifiedthat an extension cord in the passageway was owned and used by a swimming poolcontractor working on the site. He did not, however, deny the existence of thecondition as otherwise described by the compliance officer. Accordingly, wefind that the cited passageway had not been cleared of lumber and other debrisduring the course of construction and conclude, therefore, that Lacy failed tocomply with 29 C.F.R. ? 1926.25(a).??????????? Item2 of the citation alleged that Lacy failed to comply with the standard at 29C.F.R. ?\u00a01926.51(c)(3)[3] in that toilet facilitiesfor employees were not provided at the jobsite. It is undisputed that the onlytoilet facilities available for use by Lacy?s employees were those in Lacy?sown apartment or in vacant apartments located in nearby occupied existingapartment buildings.??????????? Underthe cited standard, toilet facilities must be provided at the ?jobsite.?Existing and occupied apartment buildings are not part of a construction?jobsite? even where, as here, they are in proximity to the area under construction.Accordingly, we find that the jobsite lacked toilet facilities and concludethat Lacy failed to comply with the cited standard. Because toilet facilitieswhich were not on the ?jobsite? were readily accessible to employees, thehazard presented by this violation does not warrant the issuance of anabatement order. See SouthwesternElectric Power Co., 80 OSAHRC ??, 8 BNA OSHC 1974, 1980 CCH OSHD ? 24,732(Nos. 77?3890 and 77?3391, 1980). Under these circumstances, we conclude thatthe violation of section 1926.51(c)(3) was de minimis.??????????? Item3 of the citation alleged that Lacy failed to comply with the standard at 29C.F.R. ?\u00a01926.100(a)[4] in that Lacy?s employeeswere not required to wear protective helmets while working in areas where otherLacy employees were working on floors above. The essential facts areundisputed. The compliance officer testified that Lacy?s employees were workingwithout hard hats in an area over which other work was progressing and that oneemployee had told the compliance officer that hard hats had not been provided.Although about eight employees were working at the site, Lacy owned only onehard hat which was available ?on loan? to employees. Lacy?s testimony that he?didn?t think? there were unprotected employees working below other employeesis insufficient to refute the officer?s testimony as to his observations. Wefind that employees working in an area below other on-going construction werenot provided with protective helmets as required by 29 C.F.R. ? 1926.100(a).Accordingly, we conclude that Lacy violated the cited standard.??????????? Item4 of the citation alleged noncompliance with the standard at 29 C.F.R. ?\u00a01926.150(c)(1)[5] in that Lacy did notprovide fire protection at the construction site. The compliance officertestified that he observed no fire extinguishers on the building underconstruction. He testified further that in response to his inquiry regardingfire protection, Lacy directed his attention to two ?garden? hoses; oneconnected to an outside faucet 50\u2032 to 70\u2032 away, and another which?may have been? connected to a faucet in the basement of the building underconstruction. The compliance officer described the outside hose as not coiledin any way and simply laying on the ground along with the debris in the area.He depicted the ?basement? hose as being ?stuffed? into a 4\u2033 diametersewer pipe. The compliance officer also testified that he did not look for fireextinguishers on the existing occupied apartment building nearby. Lacy statedthat he had six 50-foot lengths and two 25-foot lengths of hose in thevicinity, that three of the 50-foot hoses were connected together, equippedwith a nozzle, and connected to an operative faucet approximately 50? from thearea under construction. Lacy also testified as to the presence of a number offire extinguishers (three rated 2A and two rated BC) in the nearby occupiedbuilding.??????????? Readas a whole, the cited standard is intended to assure that fire extinguishingequipment at construction sites be adequate in both capacity and location.Under subsection 15(c)(1)(i) at least one 2A rated extinguisher must be presentfor ?each, 3,000 square feet of protected building area or major fractionthereof.? Subsection 150(c)(1)(iv) requires a minimum of one 2A ratedextinguisher on each floor. Subsections 150(c)(1)(ii) and (iii) permit thesubstitution of either a 55-gallon open drum or a garden-type hose line foreach required fire extinguisher. See Cornell& Co., 77 OSAHRC 164\/F5, G3 n.11, 5 BNA OSHC 1736, 1739, n.11, 1977?78CCH OSHD ?22,095, p. 26,609, n.11 (No. 8721, 1977).??????????? Therequirement to provide at least one fire extinguisher ?on each floor? containedin subsection 150(c)(1)(iv) clearly refers to locations within the buildingunder construction. Fire extinguishers placed in other buildings, even thosenearby, cannot fulfill the requirements of the standard. Similarly, becausesubsection 150(c)(1)(iii) of the standard allows the substitution ofgarden-type hoses meeting certain specifications for 2A rated fireextinguishers on a one for one basis, the building under construction in thiscase required, as a minimum, one hose on each of the four levels. The evidencedemonstrates that there were two connected hoses in the general area and nohoses at all on the upper levels.??????????? Moreover,the evidence does not demonstrate that the hoses in the general area met thespecifications of subsection 150(c)(1)(iii). It is undisputed that the hoseswere neither ?mounted on conventional racks or reels? nor were they shown to becapable of discharging at least 5 gallons per minute with a minimum hose streamrange of 30 feet horizontally. We find that neither a 2A rated fireextinguisher nor an acceptable garden-type hose substitute was provided foreach floor under construction. We thus conclude that Lacy failed to comply withthe requirements of 29 C.F.R. ? 1926.150(c)(1).??????????? Item5 of the citation alleged that Lacy failed to comply with the standard at 29C.F.R. ?\u00a01926.450(a)(9)[6] in that ladders used foraccess to the third level and to the roof of the stairwell did not extend atleast 36\u2033 above the landings. The compliance officer testified as to thelocation and use of two ladders, neither of which extended 36\u2033 abovetheir respective landings. The two cited ladders were the only means of accessfrom the second to the third level and from the third level to the roof of astairwell. Lacy did not deny the existence of the conditions but did argue thatthe top of the ladder from the second to the third level was within one foot ofa doorway enabling an employee using that ladder to ?grab hold? of the doorframe and have safe access to the third level. The existence of the allegednoncomplying condition at the roof of the stairwell was not denied. Moreover,the evidence does not demonstrate that it was not practical to extend the topof the second to third floor ladder at least 36\u2033 above the third floorladder at least 36\u2033 above the third floor landing. We thus conclude thatLacy failed to comply with 29 C.F.R. ?\u00a01926.450(a)(9) as alleged.??????????? Item6 of the citation alleged that Lacy failed to comply with the standard at 29C.F.R. ?\u00a01926.500(b)(7)[7] in that two floor openingson each of two balcony levels were unguarded. The compliance officer describedone particular floor opening on the second floor west balcony as 25\u2033 to30\u2033 by 6\u2032. He also stated that the other floor openings he observedwere all greater than 12\u2033in the least dimension. Two floor openings onthe east side of the building were used as ladder openings. Those on the westside of the building consisted of sections of balconies that had not yet beencompletely floored. Lacy did not deny the existence of the violativeconditions.??????????? Atthe hearing, the judge questioned the compliance officer as to the methods anemployer could use to guard or cover floor openings in a deck or balcony whileit is under construction. The judge indicated that it would be completelyinfeasible or inefficient to properly guard such floor openings while the restof the deck is being installed. In his post-hearing brief the Secretary arguesthat the judge improperly attempted to raise the affirmative defense ofimpossibility of performance, and even if the affirmative defense had beenproperly raised, Lacy did not carry his burden of proving it.??????????? Therecord before us demonstrates that two unguarded floor openings were present onthe east side of the building where the decking had been completed. No questionas to the impossibility of performance has been raised as to the two flooropenings which were used for ladder openings. Moreover, as to the west sideopenings, although the Commission recognizes the affirmative defense ofimpossibility of performance, in order to established the defense an employermust show that (1) compliance with the standard would preclude performance ofrequired work and (2) alternative means of employee protection are unavailable.M.J. Lee Construction Co., 79 OSAHRC12\/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ?23,330 (No. 15094, 1979). On this recordLacy has proven neither element of the affirmative defense. Accordingly, wefind that four unguarded floor openings existed at the time of inspection andconclude that Lacy failed to comply with 29 C.F.R. ? 1926.500(b)(7) as alleged.??????????? Items7 and 8 of the citation alleged that Lacy failed to comply with the standardsat 29 C.F.R. ? 1926.500(d)(1) and ? 1926.500(d)(2), respectively.[8] Item 7 alleged that theopensided balconies on the west side of the building were unguarded while item8 alleged that opensided runways on the east side were unguarded.??????????? Ateach apartment level on the east and west sides of the building a ?balcony? or?balcony runway? was being constructed. The east side ?runways? were 5\u2032in width and provided access to the interior of the building. On the west sidethe ?balconies? were 6\u2032 in width and did not provide access to theinterior. In sum, a total of approximately 400 linear feet of balcony waseither completed or under construction. The compliance officer testified thatno guardrails were in place. He stated that he considered the lack of guardrailsto be two separate noncomplying conditions by distinguishing the ?runways? onthe east side from the ?balconies? on the west side. While Lacy argued that thepresence of guardrails would ?definitely obstruct if not prevent, the efficientinstallation of . . . decking,? he also conceded that portions of the balconiesremained unguarded for as long as 16 days after completion of the decking.??????????? Thedifference between a platform covered by section 1926.500(d)(1) and a runwaycovered by section 1926.500(d)(2) is based upon whether the area in question isa ?working space? or a ?passageway.?[9] In this case thedimensions, method of construction, and use during construction of the?balconies? and ?runways? were virtually identical. Similarly, the hazard offalling from either an unguarded ?balcony? or ?runway? was the same. Theunguarded perimeters on both the east and west sides of the building are thuswithin the ambit of section 1926.500(d)(1). Based upon the unrefuted evidencewe find that the alleged condition existed at the time of inspection and weconclude that Lacy failed to comply with the standard at 29 C.F.R. ?1926.500(d)(1).??????????? Lacy,acting as his own general contractor, personally supervised all of theconstruction work. The record demonstrates that he was almost always at theconstruction site while work was in progress. Indeed, Lacy?s residence waswithin sight of the construction work. Under these circumstances we find thatLacy knew or, with the exercise of reasonable diligence, should have known ofthe existence of the noncomplying conditions.??????????? Thecompliance officer observed approximately eight employees working and movingabout the construction site. He specifically testified that at various times hesaw one or more employees on the roof, the east side of the second floor, thesecond and third floor balconies, climbing a ladder, and on the ground belowother employees working above. He also testified that employees used a door atthe end of the passageway cited in item 1 of the citation. In addition, Mr.Lacy testified that on the day of the inspection employees were supposed to beworking on the decking on all the floors. Mr. Lacy also stated to thecompliance officer that employees passed items through the floor holes. Basedupon this evidence we find that one or more employees were exposed to thehazard posed by each violative condition. See Otis Elevator Co., 78 OSAHRC 88\/E5, 6 BNA OSHC 2048, 1978 BNA OSHD?23,135 (No. 16057, 1978).[10]II??????????? Undersection 17(j) of the Act, 29 U.S.C. ? 666(i), in determining appropriate civilpenalties for violations of the Act, the Commission must consider ?the size ofthe business of the employer being charged, the gravity of the violation, thegood faith of the employer, and the history of previous violations.? Lacy wasessentially an owner and operator of rental apartments. He was not engagedregularly in the business of construction, and there is no evidence that heintended or planned to engage in further construction activities. Moreover, asa construction enterprise his business was extremely small. He had no historyof prior violations. Based upon these factors, we conclude that the assessmentof no penalty is appropriate.??????????? Accordingly,items 1, 3, 4, 5, 6 and 7 of the citation alleging a failure by Lacy to complywith the standards at 29 C.F.R. ?? 1926.25(a), 1926.100(a), 1926.150(c)(1),1926.450(a)(9), 1926.500(b)(7), and 1926.500(d)(1) are affirmed. Item 8, of thecitation alleging a failure to comply with the standard at 29 C.F.R. ?1926.500(d)(2), being redundant, is vacated. Item 2 of the citation alleging afailure to comply with the standard at 29 C.F.R. ? 1926.51(c)(3) is found to bede minimis. No penalty is assessed.?SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.,EXECUTIVE SECRETARYDATED: JAN 30, 1981\u00a0\u00a0[1] 29 U.S.C. ?652(5).[2] The standardstates:? 1926.25 Housekeeping.(a) During the course of construction . .. form and scrap lumber with protruding nails, and all other debris, shall bekept cleared from work areas, passageways, and stairs, in and around buildingsor other structures.[3] The standardstates:? 1926.51 Sanitation.(c) Toilets at construction jobsites.(3) Jobsites, not provided with a sanitarysewer, shall be provided with one of the following toilet facilities . . .[4] The standard readsas follows:? 1926.100 Head protection.(a) Employees working in areas where thereis a possible danger of head injury from impact, or from falling or flying objects,or from electrical shock and burns, shall be protected by protective helmets.[5] 29 C.F.R. ?1926.150(c)(1) provides, in part:(c) Portable firefighting equipment?(1)Fire extinguishers and small hose lines. (i) A fire extinguisher, rated notless than 2A, shall be provided for each 3,000 square feet of the protectedbuilding area, or major fraction thereof. Travel distance from any point of theprotected area to the nearest fire extinguisher shall not exceed 100 feet.(ii) One 55-gallon open drum of water withtwo fire pails may be substituted for a fire extinguisher having a 2A rating.(iii) A ?-inch diameter garden-type hoseline, not to exceed 100 feet in length and equipped with a nozzle, may besubstituted for a 2A-rated fire extinguisher, providing it is capable ofdischarging a minimum of 5 gallons per minute with a minimum hose stream rangeof 30 feet horizontally. The garden-type hose lines shall be mounted onconventional racks or reels. The number and location of hose racks or reelsshall be such that at least one hose stream can be applied to all points in thearea.(iv) One or more fire extinguishers, ratednot less than 2A, shall be provided on each floor. In multistory buildings, atleast one fire extinguisher shall be located adjacent to stairway.[6] The standard readsas follows:? 1926.450 Ladders.(a) General Requirements.(9) The side rails shall extend not lessthan 36 inches above the landing. When this is not practical, grab rails, whichprovide a secure grip for an employee moving to or from the point of access,shall be installed.[7] The standardstates:? 1926.500 Guardrails, handrails, andcovers.(b) Guarding of floor openings and floorholes.(7) Temporary floor openings shall havestandard railings.[8] The standardsstate:? 1926.500 Guardrails, handrails, andcovers.(d) Guarding of open-sided floors,platforms, and runways.(1) Every open-sided floor or platform 6feet or more above adjacent floor or ground level shall be guarded by astandard railing, or the equivalent . . ..(2) Runways shall be guarded by a standardrailing, or the equivalent . . ..[9] ? 1926.502(e)defines ?platform? as:A working space for persons, elevatedabove the surrounding floor or ground, such as a balcony or platform for theoperation of machinery and equipment.? 1926.502(f) defines ?runway? as:A passageway for persons, elevated abovethe surrounding floor or ground level, such as a footwalk along shafting or awalkway between buildings.[10] CommissionerBarnako adheres to his test for employee exposure as expressed in Gilles & Cotting, Inc., 76 OSAHRC30\/D9, 3 BNA OSHC 2002, 1975?76 CCH OSHD ?20,448 (No. 504, 1976), vac?d and reman?d in part, 504 F.2d 1255(4th Cir. 1974). He finds that Lacy?s employees were exposed to the hazardscreated by the violative conditions during the course of their assigned duties,movement to and from work stations, or personal comfort activities. ThereforeCommissioner Barnako concludes that the Secretary has proven employee exposureto the cited conditions.”