“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 6415 ISSEKS BROTHERS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 29, 1976?DECISION?BEFORE BARNAKO, Chairman; MORAN andCLEARY, Commissioners.CLEARY, Commissioner:On September 17, 1974, Judge CharlesK. Chaplin rendered his decision affirming a citation for a serious violationof section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C.? 651 et seq. (hereinafter ?the Act?). On October 10, 1974, Commissioner Morandirected review of the Judge?s decision. Submissions were invited on thefollowing issues:(1) Is theoccupational safety and health standard published at 29 CFR ? 1926.28(a) anenforceable regulation?(2) If so, wasthe same properly promulgated in accordance with law?We have considered the entirerecord, and for the reasons that follow we affirm the Judge?s order.[1]Background of the CaseThe hearing held in June 1974concerned a citation issued during January 1974 charging the respondent withserious violation of section 5(a)(2) of the Act for a failure to comply with 29CFR ? 1926.28(a). This standard provides that:? 1926.28 Personal Protective Equipment?(a) The employer is responsible for requiring the wearing ofappropriate personal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the need forusing such equipment to reduce the hazards to the employees (emphasis added).\u00a0The complaint alleged a failure toinsure that employees wore appropriate equipment where there was exposure tothe hazard of falling from fixed ladders. The employees were performingmaintenance on a rooftop water tank about eight floors above the street. Aspart of their job tasks, the workers climbed up and down fixed metal ladders.The ladder leading to the top of the water tank was inclined at a steep angle,and the top of the tank was between 26 and 30 feet above the rooftop. Nopersonal protective equipment was worn by any of the workers to protect againstfalls from these ladders although respondent?s own unenforced safety rule isthat safety belts are to be worn while climbing ladders. Respondent?s industryhas also published manuals indicating the need for such equipment. None of theladders was caged.Testimony at the hearing waslimited to that of the compliance officer who conducted the original inspectionand the President of the respondent employer. Judge Chaplin after consideringthe evidence and the employer?s post hearing brief, affirmed the citation andproposed penalty of $500.Vagueness of 29 CFR ? 1926.28(a)The respondent employer arguesthat the standard at issue is so vague and indefinite as to violateConstitutional due process protections against vagueness. The standardallegedly fails to give fair notice to employers of what conduct is required.The phrases ?appropriate protective equipment? and ?when there is exposure tohazardous conditions? are considered too vague.We disagree. As we have statedbefore, if the employer is uncertain of what personal protective equipment is?appropriate? he may look to the specifications in Subpart E of Part 1926,entitled ?Personal Protective and Lifesaving Equipment.? With specificreference to the hazard of falling, he may comply with the standard byrequiring the use of tied-off safety belts, lanyards and safety lines toprotect employees as required by 29 CFR ? 1926.104(a). See generally, HoffmanConstr. Co., 2 BNA OSHC 1523, CCH 1974?75 OSHD para. 19,275 (No. 664,January 31, 1975). If personal protective equipment for the particular hazardis not listed in Subpart E, and the employer requires guidance in devising orfinding appropriate equipment, he may consult publications such as ANSIA14.3?1974 ?Safety Requirements for Fixed Ladders? ? 6 at 24?25, or trade publicationson safety (such as the ones in this record).[2]Also, the employer may consult with the Secretary pursuant to section 21(c) ofthe Act which requires the Secretary to advise and consult with employers.A condition that is ?hazardous? isone having a direct and immediate adverse effect on safety or health (LeeWay Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 869 (10th Cir.1975)) which is not so remote as to be nearly negligible (General ElectricCo., 3 BNA OSHC 1031, 1044, CCH 1974?75 OSHD para. 19,567 at 23,369 (No.2739, April 21, 1975). The term is not vague. In rejecting respondent?s theoryof the case, the Judge relied upon Ryder Truck Lines, Inc. v. Brennan,497 F.2d 230 (5th Cir. 1974) and inquired whether respondent?s industry recognizedthe requirement for a safety belt where no other form of protection fromfalling, i.e., a cage, was available, and whether such hazards are recognizedby respondent?s industry. The Judge noted that the respondent?s presidentconceded that the fall hazard involved is recognized in the industry and alsothat respondent required generally the use of safety belts whenever hisemployees were climbing ladders. Hence, the Judge concluded that there was noproblem of Constitutional notice. We agree.[3]Validity of 29 CFR ? 1926.28(a)?sAdoption[4]Section 1926.28(a) was initiallyadopted in 1971 as an ?established Federal standard.?[5]Latein December 1971 the standard was numerically redesignated without any changein its substance.[6]About one year later the standard was changed.[7]This change forms the basis for an argument that the amended standard wasinvalidly adopted.The change of section 1926.28(a)was part of a revision of Part 1926 as a whole. Three purposes of the revision werethe following:(1) to publish fully in one place the present occupationalsafety and health standards contained therein in order to reflect many changesmade during the current year and thereby to improve their usefulness andfacilitate their enforcement;?(2) to correct a number of typographical and clerical errorsin the text of the standards; and?(3) to publish indexes with the standards, which areintended to permit quicker access to pertinent standards.?37 Fed. Req. 27503 (1972). No notice oropportunity for public comment was provided, since the Assistant Secretaryexplicitly stated that no substantive changes were made in the standards.The change made to section1926.28(a) in the course of this revision was the substitution of the conjunction?or? for the conjunction ?and? used in the initial standard. Both HoffmanConstr. Co., supra, and Carpenter Rigging & Contracting Corp., supra,considered at length the construction to be given to the use of ?and? in thestandard.Detailed discussion of this issueis unnecessary, for we feel that Eichleay Corp., supra, is dispositive.The Commission in Eichleay took note of the change made in the standardand the Secretary?s statement in the preamble of the revision that nosubstantive changes were made. The Commission then concluded that the word ?or?should receive the same reading as the word ?and? used in the previous versionof the standard.Since 29 CFR ? 1926.28(a)underwent no substantive change in this revision, the standard was validlyadopted. The only change was a minor one. 29 CFR ? 1911.5. Furthermore, thepreamble to the Federal Register revision of ? 1926.28(a) included a finding ofgood cause to this effect, in that the document did not make ?substantivechanges in the standards.? 37 Fed. Reg. 27503 (1972).Objections Raised in the Respondent?sBrief on ReviewIn its brief on review, therespondent raised two main objections to Judge Chaplin?s decision. Respondentfirst argued that ? 1926.28(a) is in effect an application of the ?general duty?clause, and that no recognized hazard existed under the facts of this case. Thesimple answer is that the citation charged a violation of a specific standardadopted under section 5(a)(2) of the Act. At no point in the case was anattempt made to allege a violation under section 5(a)(1). The elements of asection 5(a)(1) violation are thus not relevant to this case. Indeed, theexistence of a specifically applicable standard would preempt the applicationof the general duty clause. 29 CFR ? 1910.5(f); Brisk Waterproofing Co., Inc.,1 BNA OSHC 1263, CCH 1973?74 OSHD para. 16,345 (No. 1046, July 27, 1973);Godwin-Bevers Co., Inc., 2 BNA OSHC 1470, CCH 1974?75 OSHD para. 19,206 (No.1373, January 7, 1975); Brennan v. Butler Lime & Cement Co., 520F.2d 1011, 1017?1018 n.9 (7th Cir. 1975), citing National Realty &Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1261 (D.C. Cir. 1973).Respondent?s argument that section5(a)(1) elements are applicable apparently derives from language used in McLeanTrucking Co. v. O.S.H.R.C., 503 F.2d 8 (4th Cir. 1974). The Court theredrew a parallel between the breadth of the ?general duty? clause, and that ofthe standard at issue. Both furthered the goals of the Act and both weredrafted with as much exactitude as possible. At no point, however, did theCourt hold the requirements for a section 5(a)(1) violation applicable to acited violation of a broad section 5(a)(2) standard.On the merits of the allegation ofnon-compliance, we affirm and adopt the Judge?s findings that respondent didnot require the use of appropriate personal protective equipment, (cf. OtisElevator Co., 3 BNA OSHC ??, CCH 1975?76 OSHD para. 20,159 (No. 1184,November 19, 1975)) and that the hazard of falling from ladders existed. Thatrespondent?s employees had not yet suffered any injuries does not alone negatethe existence of a hazardous condition. Cf. Ryder Truck Lines, Inc., 497F.2d 230 (5th Cir. 1974). We also agree with the Judge?s finding that theviolation was serious.Accordingly, it is ORDERED thatthe decision of Judge Charles K. Chaplin be affirmed.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: JAN 29, 1976?BARNAKO, Chairman, Concurring:I concur but do not join in mycolleague?s discussion of the vagueness and validity issues. The Commission?sdecisions in Hoffman Construction Co., supra, and Eichleay Corp.,supra, are dispositive. In my opinion the administrative law judge?sfindings and conclusions were appropriate for the reasons assigned by him.?MORAN, Commissioner, Dissenting:In a determined effort to payhomage to the opinions of Humpty-Dumpty rather than the U.S. Court of Appeals,the lead opinion continues to insist that the Commission can make words meandifferent things.[8]Undeterred by the failure to make the word ?roof? mean ?floor,? it is nowrevealed that the word ?or? has the same meaning as the word ?and.? I quotedirectly from the lead opinion:?. . . the word ?or? should receive thesame reading as the word ?and? . . ..?For 200 years students of AmericanHistory believed that Patrick Henry was speaking in the alternative when, onMarch 23, 1775, he said:?. . . give me liberty, or give medeath!?But in this bicentennial year theCommission?s guide to word-usage would have that famous declaration read?braceyourself now??. . . give me liberty, and give medeath!?Our forefathers who launched arevolution because they believed they had the ?unalienable right? to ?life, liberty,and the pursuit of happiness?[9]might have reacted differently if one of my colleagues had been there to advisethem that proper word usage requires that this declaration of the rights theycherished could also be interpreted to mean ?life, liberty, or the pursuit ofhappiness.?Logic requires that one ask thisquestion: If there were no difference between the two words, why did theSecretary of Labor go to the trouble of making the change as chronicled innotes 5 through 7, supra, and the accompanying text? The three ?reasons? whichappeared in the Federal Register, and which are listed in the lead opinion,give no clue whatsoever. Certainly replacing ?or? with ?and? has nothing to dowith publishing the standards fully in one place?correcting textual errors?orpublishing indexes.Clearly the requirements of thestandard were altered by the change. Under the ?established Federal standard?which was adopted pursuant to the limited authority contained in 29 U.S.C. ?655(a) an employer?s duty was to see that his employees wear protectiveequipment where there existed both a hazardous exposure and where the regulationso indicated. What my colleague refers to as a ?slight change? mandated atotally different duty for employers: protective equipment is required eitherwhere there is hazardous exposure or where the regulation so indicates.The lead opinion implicitlyconcedes that the Secretary of Labor could not legally change this requirementin the manner he employed?because the Act limits the summary adoption ofstandards to ?established Federal standards? and ?national consensusstandards.? Once the word ?or? was substituted for the word ?and? it was nolonger an established Federal standard so the procedure which the Secretaryemployed to ?adopt? the change?29 U.S.C. ? 655(a)?was improper. Such a changecould only be made by following the public scrutiny provisions which appear in29 U.S.C. ? 655(b).A recent decision of the Court ofAppeals for the Third Circuit, AFL-CIO v. Brennan, ?? F.2d ?? (3d Cir.,No. 75?1105, decided December 31, 1975) considered the authority of theSecretary of Labor to make changes in national consensus standards which, underthe Act, have the exact same status as established Federal standards. Said theCourt:?. . . if his [the Secretary of Labor?s] standard differssubstantially from an existing national consensus standard he must . . .attempt to show . . . what reasons there are for the departure. If the reasonsfor the departure are based in whole or part on factual matters susceptible ofevidentiary development, they must, as in any other case, be supported bysubstantial evidence in the record as a whole.??That, of course, was not evenattempted in this case. The resort of the Commission in this case to the mindblowing nonsense of proclaiming that there is no difference between the twowords at issue is a clear admission that legal procedures were not observed inmaking the change.Because the Secretary had nostatutory authority to make the change in the wording of ?\u00a01926.28(a)without observing the requirements of 29 U.S.C. ? 655(b), the version of thestandard containing the word ?or? is invalid. I have also made this point in Secretaryv. Island Steel & Welding, Ltd., 17 OSAHRC 143, 144 (1975), and Secretaryv. Carpenter Rigging & Contracting Corporation, 15 OSAHRC 400, 409(1975).Where the modified version of astandard is invalid, it does not repeal the original standard. See 1A SutherlandStatutory Construction ? 23.24 (4th ed. C. Sands rev. 1972). Consequently,the original version of 29 C.F.R. ? 1926.28(a) [10]remainsin force and effect.To establish a violation under theoriginal (and only valid) version of the standard, proof of two things isrequired:(1) exposure to a hazardous condition warranting the use ofpersonal protective equipment, and?(2) failure to use this equipment when its use is requiredelsewhere in Part 1926 of the regulation.?Secretary v. Island Steel &Welding, Ltd., supra. Therefore, toestablish a violation of the standard in this case, it must be shown thatanother standard within Part 1926 required respondent?s employees to wearsafety belts.The standard that comes closest torequiring the use of safety belt is 29 C.F.R. ?\u00a01926.105(a) whichprovides:?Safety nets shall be provided when workplaces are more than25 feet above the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines or safetybelts is impractical.??This standard has been interpretedto require the use of safety nets or one of the other enumerated items whenwork is performed at heights of more than 25 feet. Brennan v. SouthernContractors Service, 492 F.2d 498 (5th Cir. 1974). There is nothing thereinto indicate that any of these devices must be used in conjunction with oneanother.In the instant case respondent?semployees were performing emergency repairs upon a roof-top water tank. The menused fixed ladders. Neither ? 1926.105(a) nor any other standard within Part1926 requires that safety belts be used as well. Accordingly, the citationshould be vacated.Regrettably the trial below wasconducted while the Judge and all parties to the case were unaware of thewording change in the regulation. Nevertheless, I believe the facts involvedwere carefully set forth in Judge Chaplin?s decision so I incorporate the sameherein as Appendix A.?APPENDIX A\u00a0\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 6415 ISSEKS BROTHERS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: October 17, 1974APPEARANCES:Theodore Gotsch, Esq. For the complainant andJoseph S. Kaming, Esq. For the respondent\u00a0Charles K. Chaplin, JudgeThe above identified cause aroseat a workplace where respondent?s employees had been summoned to performmaintenance on a rooftop water tank.This is a proceeding pursuant toSection 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 etseq., hereafter the Act) wherein the respondent contested both the violationand the proposed penalty for an alleged serious violation.[11]The violation as cited was allegednoncompliance with the standard at 29 CFR 1926.28(a) and it was described inthe citation as:?Employees are exposed to the hazards of falling due tofailure to utilize personal protective equipment such as ladder safety devices(for five ladders) safety belts and life lines or safety nets for workperformed on January 17, 1974.??The applicable standard provides:?1926.28 Personal Protective Equipment?(a) The employer is responsible for requiring the wearing ofappropriate personal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the need forusing such equipment to reduce the hazard to the employees.?The complaint alleged that on orabout January 17, 1974, at a workplace located at 149 W. 45th Street, New York,New York ?. . . the respondent failed to insure that its employees wore theappropriate personal protective equipment in an operation where there wasexposure to hazardous conditions in that there was no ladder safety devices fora number of ladders utilized at the worksite.?The parties stipulated thatrespondent was engaged in interstate commerce, that respondent is small inrelative size with yearly gross revenue of approximately $700,000, thatrespondent has no history of violations under this act, and daily has between10 and 13 employees. Respondent then advised that it wished to withdraw itscontest to a nonserious violation respecting protective helmets. Respondentstated it had provided helmets but the employees were not wearing them on thedate of inspection, that respondent has again instructed all employees to wearhelmets and will continue to abide by the regulations. Respondent?s motion towithdraw was then granted.At trial complainant moved toamend the complaint to conform to the citation. This motion was denied on thebasis that dropping a portion of the citation was an abandonment of suchelement and to resurrect it on the date of trial would prejudice respondent.The EvidenceThe complainant offered thetestimony of Mr. Theodore Corcoran, a Compliance Safety and Health Officer, whohad conducted an inspection on January 17, 1974 of a worksite whererespondent?s employees were making emergency repairs to a rooftop water tank.[12]The tank was on the roof of a theater building at 149 West 45th Street (Tr.36), about eight floors above the street. The roof was in three levels withvertical fixed metal ladders from the lower to intermediate level and to thetop level (Tr. 37). There was a fixed metal ladder at a 75 degree angle,[13]in excess of 30 feet (35 rungs), from the rooftop to the top of the tank (Tr.38). On arriving at the worksite Mr. Corcoran observed four workmen ofrespondent (Tr. 41), one on the lower roof level, one on the upper roof level,and two at the tank level, with one of these on top of the tank (Tr. 40).During the inspection the men changed locations and went up and down theladders (Tr. 61) and he observed no personal protective equipment being used.He described such protective equipment as a safety belt with ladder climbingattachments (Tr. 43). He discussed with the employees the need for measures toprevent falls from the ladders and observed that in the ?normal? use of fixedladders, falls frequently result without intervening cause (Tr. 47). During thetime he was at the worksite he did not see any safety belts and when he leftthe men were tying off with a manila rope (Tr. 50). He determined the hazardsto which these employees were exposed were serious because of the possibilityof falling from over 30 feet and sustaining serious physical harm or death. Incomputing the penalty respondent was allowed the maximum consideration forsize, good faith and prior history so that the initial penalty was reduced 50%(Tr. 60).On cross examination Mr. Corcoranstated that these ladders should have had wells or cages or, in thealternative, personal protective equipment in conjunction with climbing grabsor a track could have been used. He described a track as sections of polebolted to the ladder and to which the worker could attach his safety belt on asliding device.[14]He described the hand grabs as attachments to the belt which are fitted overthe rungs or sides of the ladder and released and reattached as the wearerclimbs (Tr. 81). If a temporary ladder, as distinguished from a fixed ladder,was properly placed no such device would be required while using the ladder. Hefelt the roof ladders to be more hazardous than the tank ladder. The experienceof the workmen was not a factor in determining the form of device required (Tr.94). He also related that the hazard to which the workman on top of the watertank was exposed was his principal concern and although this was no longer inissue the penalty remained unchanged.??????????? Hefurther stated that at the lower roof level ladder there was a rope alongsidethe ladder, used for hoisting materials, and that a workman could possibly grabthis rope. A rope was also beside the tower ladder (Tr. 190).On redirect testimony Mr. Corcorantestified that he specifically asked the workmen if they had safety belts withthem and was informed they were back in the shop (Tr. 192). His instructionsfrom his office were that a rope is not an acceptable ladder safety device (Tr.206).Respondent?s president, Mr.Marshall Hochhauser, testified that he was actively involved in respondent?sbusiness, has taken safety and engineering courses in construction and isChairman of the Safety Committee of the National Wood Tank Institute. Hisinvolvement with respondent included selling and office, shop and erectionprocedures. The safety committee of which he was chairman, set up policieswhich the members tried ?. . . to live up to and to conform with the OSHAregulations and also where we disagree, to send in what we feel therequirements should be.? (Tr. 132). Respondent offered as an exhibit a reportof the National Wood Tank Institute Safety Committee.[15]This exhibit contained a safety manual, Basic Safety Rules for Field Erectionand Construction by Caldwell Tanks, Inc. setting forth at page 5 that ?Inplaces where no other form of protection from falling is available, a safetybelt and tail line must be used.? Mr. Hochhauser also stated (Tr. 141) that hisemployees were required to wear safety belts when climbing ladders. Thisrequirement was enforced by supervisors, foreman or leaders (Tr. 143). The onlyreason he could advance for his employees not wearing safety belts on the dayof inspection was because the work being performed was an emergency repair andthe employees were expediting it (Tr. 147). He described the safety device heutilized as?. . . they clip right on to the ladder they go up . . .(Tr. 166)?Q. They clip from rung to rung as they go up??A. Yes.??Further he stated the material hoistrope was a safety device (Tr. 170).Findings of Fact1. Respondent had employees working ona building roof for the purpose of repairing a wooden water tank risingapproximately 26 feet to its top.2. The roof top was in three levelswith access to each higher level by way of fixed metal ladders.3. The water tower was reached by wayof a fixed metal ladder.4. The roof ladders were vertical andthe tank ladder was inclined at an indeterminate angle.5. Respondent had four workmen at theworksite and at least three of them traversed the roof ladders and two of themthe tank ladder.6. None of the ladders was caged andnone of the men wore any personal protective devices.7. Injury from falling from one ofthese ladders would have resulted in serious physical harm or death.DiscussionMuch trial time was devoted to adevice that could be attached to a ladder to make working with a safety belteasier. Just as in sports a player must keep his eye on the ball, so too in thelaw lawyers must keep their eye on the point in litigation. Here the issue iswhether respondent?s employees were wearing any personal protective device thatwould assist them in the event of a fall. This issue arose because thebuilding?s owner had not provided any type of ladder safety device so safetywas left solely to the person climbing the ladder. A climber in thesecircumstances can achieve ladder safety only by wearing a safety belt that willcatch him if he falls. Thus ladder safety devices are not part of the issue.Official notice is taken of the fact that people fall off of ladders for avariety of reasons including slipping, vertigo, and physical reasons. Thus arope, as testified to as a safety device, is not a safety device when justhanging alongside the ladder since an unconscious person or one falling awayfrom the rope could not avail himself of it.The proposed penalty covered notonly the failure to wear personal protective gear but also the use of otherdevices to protect the workmen on top of the tank. However in deleting thelatter item from the issues no penalty adjustment was made.Respondent has cited variousdecisions by Commission Judges to the effect that the standard at 1926.28(a) isvague and unenforceable.[16]In general these decisions stand for the proposition that ? 28(a) is vague whenstanding alone. A substantially similar standard at 1910.132(a) requiring ?. .. protective equipment . . . shall be provided, used . . . wherever it isnecessary by reason of hazards . . . encountered in a manner capable of causinginjury . . .? was recently reviewed[17]and the court held that?The regulation appears to have been drafted with as muchexactitude as possible in light of the myriad conceivable situations whichcould arise and which would be capable of causing injury. Moreover, we thinkinherent in that standard is an external and objective test, namely, whether ornot a reasonable person would recognize a hazard of foot injuries to dockmen,in a somewhat confined space, from falling freight and the rapid movement ofheavy mechanical and motorized equipment, which would warrant protectivefootwear. So long as the mandate affords a reasonable warning of the proscribedconduct in light of common understanding and practices, it will passconstitutional muster.?\u00a0There is little to distinguish thestandards at 1910.132(a) and 1926.28(a) insofar as their general applicabilityis concerned. Using the test enunciated in Ryder, supra, it is clearthat respondent?s industry recognized the requirement for a safety belt whereno other form of protection from falling, i.e., a cage, was available. Furtherrespondent?s president required such belts whenever his employees were climbingladders. A hanging rope alongside the ladder does not begin to approximate ?. .. personal protective equipment . . .? Whether respondent?s employees have hadno ladder falls is not determinative of the hazard which respondent?s presidentconcedes is recognized in the industry.Conclusions of Law1. The Occupational Safety and HealthReview Commission has jurisdiction over the respondent and the matter in issue.2. Respondent was in noncompliance withthe standard at 1926.28(a) and thus in violation of 29 USC 654.3. Such violation was a seriousviolation within the meaning of 29 USC 666.OrderThe citation for a seriousviolation of the standard at 1926.28(a) and the proposed penalty of $500 areaffirmed.?It is so ORDERED.?CHARLES K. CHAPLINJudge, OSHRCDated: September 17, 1974Washington, D.C.[1]Formy own part, I would add that in my opinion the Commission lacks authority todecide the Constitutional question of vagueness inherent in the first issue,and to review the validity of rulemaking actions of the Secretary of Labor. Myviews on these matters are expressed fully in Carpenter Rigging &Contracting Corp., 2 BNA OSHC 1544, 1546?47, CCH 1974?75 OSHD para. 19,252at 23,030 (No. 1399, February 4, 1975) (lead opinion), Divesco Roofing &Insulation Co., 1 BNA OSHC 1279, CCH 1973?74 OSHD para. 16,443 (No. 345,August 13, 1973) (concurring opinion), United States Steel Corp., 2 BNAOSHC 1343, 1345, CCH 1974?74 OSHD para. 19,047 at 22,773 (Nos. 2975 & 4349,November 14, 1975) (concurring opinion), and Santa Fe Trail Transport. Co.,1 BNA OSHC 1457, 1460, CCH 1973?74 OSHD para. 17,029 at 21,707 (No. 331,December 18, 1973) (dissenting opinion), rev?d 505 F.2d 869 (10th Cir. 1974).[2]Thisinterpretation is consistent with the purposes of the Act. Society of thePlastics Industry, Inc. v. O.S.H.A., 509 F.2d 1301, 1309 (2d Cir.), cert.denied 95 S.Ct. 1998 (1975).\u00a0[3]Itshould be noted, however, from the application of the terms of the standard inthe text of this decision that the standard does not actually require the useof a ?reasonable man? test in determining the course of conduct required of anemployer. Hoffman Constr. Co., supra, Carpenter Rigging &Contracting Corp., supra at note 1, and Eichleay Corp., 2 BNA OSHC1639, CCH 1973?74 OSHD para. 16, 811 (No. 2610, October 16, 1973)(Administrative Law Judge), aff?d by the Commission, 2 BNA OSHC 1635, CCH1974?75 OSHD para. 19,324 (February 20, 1975) should be read accordingly. Ofcourse, whether a hazardous condition exists can be determined by reference toindustry?s recognition of a hazard, but this is not necessarily controlling. Cf.United States Steel Corp., Am. Bridge Div., CCH 1973?74 OSHD para. 17,243,(No. 3010, January 31, 1974) (Administrative Law Judge), aff?d by an equallydivided Commission, 19 OSAHRC 512, 3 BNA OSHC 1434, CCH 1975?76 OSHD para.19,883 (July 29, 1975). Other probative evidence, such as records of personalinjury may be used as well. See Texports Stevedore Co., Inc. v. Secretary ofLabor, 484 F.2d 465, 467 (5th Cir. 1973) which relies upon thecircumstances of a particular incident without reference to industry practices.\u00a0[4]Thisissue was raised sua sponte in the direction for review, and it is doubtfulwhether it is properly before us. Cf. Puterbatgh Enterprises, Inc., 2BNA OSHC 1030, CCH 1973?74 OSHD para. 18,158 (No. 1097, July 1, 1974)(vagueness raised in direction for review untimely).\u00a0[5]36Fed. Reg. 10469 (1971).\u00a0[6]36Fed. Reg. 25232 (1971).\u00a0[7]36Fed. Reg. 27503 (1972).[8]SeeLanger Roofing and Sheet Metal Inc. v. Secretary of Labor, ?? F.2d ??(7th Cir., Nos. 74?1645 and 75?1203, decided November 20, 1975) where the Courtoverturned the Secretary of Labor?s effort to sustain a Commission decisionholding that a roof is a floor, and stated:?Unlike Humpty-Dumpty, the Secretary may not give a wordwhatever meaning he chooses, and while we would defer to any reasonableinterpretation on his part, we are convinced that the interpretation headvances here is unreasonable.? (Footnote omitted.)[9]Declarationof Independence, July 4, 1776.[10]36Fed. Reg. 7347 (1971) as adopted by 29 C.F.R. ? 1910.12, 36 Fed. Reg. 10469(1971). The standard, originally designated as 29 C.F.R. ? 1518.28(a), wasredesignated as 29 C.F.R. ? 1926.28(a) on December 30, 1971. 36 Fed. Reg. 25232(1971).[11]Duringa pretrial conference the parties had settled the issue raised in the notice ofcontest respecting a nonserious violation of 29 CFR 1926.100(a).[12] The tank was of wooden stave construction (Tr. 184), about10 feet in height sitting on a supporting structure 16 to 18 feet in height(Tr. 155).\u00a0[13]Oncross examination Mr. Corcoran stated the ladder angle of incline was anapproximation and he did not answer when queried specifically if the anglecould have been less (Tr. 88).[14]ExhibitC?1.[15]ExhibitR?1.[16] Edward M. Ream, Inc., OSHRC Docket No. 1504, CCH ?15,569; AmericanBridge, OSHRC Docket No. 2249, CCH ?16,284; Everhart Steel ConstructionCompany, Inc., OSHRC Docket No. 3217, CCH ?17,062, and United Engineersand Constructors, Inc., OSHRC Docket No. 2414, CCH ?17,161.\u00a0[17]RyderTruck Lines, Inc. v. Brennan, (5th Cir.), No. 73?3341, July 18,1974.”