“SECRETARY OF LABOR,Complainant,v.MIDWEST STEEL ERECTION, INC.,Respondent.OSHRC Docket No. 84-0710_ORDER_The Commission approves the parties’ settlement agreement. The judge’sdecision becomes the final order of the Commission as to those citationitems not resolved by the settlement agreement.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 24, 1987————————————————————————SECRETARY OF LABOR,CompIainant,v.MIDWEST STEEL ERECTORS CO., INC.,Respondent.OSHRC Docket No. 84-0710APPEARANCES:Debra K. Goldstein, Esquire, and Cynthia D. Welch,Esquire, Office of the Solicitor, U. S. Department ofLabor, Birmingham, Alabama, on behalf of complainant.George A. Harper, Esquire, McCarty, Wilson, Rader andMash, P.C., Ennis, Texas, on behalf of respondent._DECISION AND ORDER_SALYERS, Judge: During the period in question, the respondent, MidwestSteel Erectors Company, Inc., was engaged in the erection of structuralsteel at a multi-tiered building under construction for Alabama Power inBirmingham, Alabama. As a result of employee complaints, respondent’soperations at the project were inspected on three separate occasionsduring a five-month period by four different compliance officers of theOccupational Safety and Health Administration. Each of theseinspections culminated in the issuance of citations charging respondentwith violations of the Occupational Safety and Health Act of 1970 (29U.S.C. 651, _et_ _seq_.) and the assessment of penalties.The first of these inspections was conducted during the early stages ofconstruction by Compliance Officer Suzanne Nash in December 1983. Atthe time, Ms. Nash had been employed by the agency for more than nineyears and had conducted in excess of 800 inspections (Tr. 10-11). During this inspection, Ms. Nash observed loose decking around anelevator shaft and an unguarded opening on the second floor of thebuilding under construction which she deemed to be violative of 29C.F.R. ? 1926.752. These conditions, together with the need to protectemployees from fall hazards, were discussed by Ms. Nash withrespondent’s jobsite superintendent, Lynn R. Davis, Jr., at theconclusion of the inspection (Tr. 20- 23). Mr. Davis agreed to takeaction to correct the conditions brought to his attention and was \”very\”cooperative (Tr. 29). However, a serious citation was issued and wentuncontested by respondent (Ex. C-1).Compliance Officer Terry Bailey, with eight years of agency experience,conducted a second inspection of respondent during the period March22–27, 1984, and found certain floor openings on the fifth floor of thestructure were not guarded by standard railings, toeboards or covers. He considered this condition to be in serious violation of 29 C.F.R. ?1926.500(b)(1) and proposed a citation to that effect which citation,apparently, went uncontested by respondent (Tr. 35-36). It issignificant to note that Mr. Bailey’s inspection extended over afive-day period during which time he considered a long list of possiblefall hazards (Tr. 37-38). Despite this rather extensive inspection, hefound only one condition which required attention and assessedrespondent’s program as \”one of the safest\” he had seen (Tr. 39).The third inspection was conducted by Compliance Officer Loyd Black inthe company of Compliance Officer William Powers during the period April9–12, 1984. During this inspection, Compliance Officer Black observed,and in many instances photographed, conditions which he considered to beflagrant safety violations. As a result of this inspection, theSecretary of Labor issued a series of citations charging respondent withwillful, repeat, serious and other violations of the Act and proposedaggregate penalties of $23,200. Respondent contested all charges and ahearing was conducted in Birmingham, Alabama. Both parties havesubmitted briefs in the case and the matter is now ready for decision.The broad issues are:(1) Did respondent violate the standards as alleged in the citations?(2) If violations occurred, did the Secretary properly characterize theviolations as serious, willful, repeat and other?(3) Are the proposed penalties reasonable?Before considering the substantive evidence relative to the chargesleveled against respondent, it is necessary to deal with a collateralissue which permeates respondent’s entire defense. Throughout thehearing, respondent alluded to improper and inappropriate conduct byCompliance Officer Black during the course of his inspection and whatrespondent perceived to be gross inconsistencies in his testimony. Respondent’s brief reiterates the contention that Compliance OfficerBlack’s \”conduct before, during and after the inspection, clearlydemonstrates that he was biased against Midwest\” (Resp. brief p. 5). Respondent does not specify what relief should be afforded by the ReviewCommission given such circumstances except to urge that Black’stestimony should be afforded \”little, if any weight.\”This aspect of the case has been considered in reaching a decision. Itis noted that compliance officers in the two previous inspections, withexperience comparable to that of Compliance Officer Black, consideredrespondent to be \”knowledgeable\” in safety and to have a safety programwhich was working well, whereas Compliance Officer Black concluded tothe contrary. It is also noted that Compliance Officer Black may havemade certain statements during the course of his investigationindicating an overzealous attitude (Tr. 332-333, 337) which conceivablycould overshadow his objectivity in conducting an appropriateinspection. However, an employer cannot expose employees to obvioushazards simply because the Secretary has failed to cite these hazardsduring the course of previous inspections. _See_ _Cedar ConstructionCo. v. OSHRC_, 587 F.2d 1303 (D. C. Cir. 1978). Likewise, unseemlyconduct by a compliance officer, while not to be condoned, does notoverride objective evidence of hazardous conditions (_e.g._,photographs) which is fully supported in the record.Taking into consideration the circumstances just described, an efforthas been made to analyze the evidence with due regard to the positionsadvanced by both parties. The very nature of steel erection is adangerous undertaking recognized to be such by the Secretary and ReviewCommission (_see_ _Adams Steel Erection, Inc_., __ OSAHRC __, 11 BNAOSHC 2077, 1984 CCH OSHD ? 26,976 (No. 77-4238, 1984), rev’d F.2d___ (3dCir., July 5, 1985, No. 80-3586). Not all hazards can be foreseen andrectified even by the most conscientious employer. In this case wherethe documentary evidence (photographs) clearly reveals a contraventionof the standards, the violations will be affirmed. In those instanceswhere the evidence requires the exercise of judgment in addition to thedocumentary evidence, consideration has been given to the evidence andthe arguments advanced by both parties and resolution of the issue hasbeen based on reason and recognition that the standards cannot beapplied in a fashion which is unrealistic.On the basis of the total record, certain conclusions have beenreached. It is concluded that safety belts and lanyards were a primarysafety device generally utilized by respondent whenever and whereverfeasible. Respondent made these devices available to each of itsemployees and required their use with two notable exceptions. Theseexceptions support a finding that the policy was not always effectivelyenforced. It is also concluded, based on the record, that respondentemployed certain progressive procedures to guard against fall hazards. These included the installation of periphery guardrails and theinstallation of permanent and temporary floors as soon as these deviceswere realistically possible (Tr. 561-562). It is further concluded thatrespondent failed to take the necessary intermediate steps to cover orotherwise guard large floor openings which constituted fall hazards toemployees while working around these areas and that this practicecontinued despite the fact it was called to respondent’s attentionduring prior inspections. Finally, it is concluded that respondent’soverall attention to safety was basically adequate with the exceptionsjust noted. Respondent’s conduct did not demonstrate sufficientindifference to or disregard of the Act’s requirements to constitutewillful violations._SERIOUS CITATION NO. 1_This citation charges respondent with serious violations of standardsrelating to personal protective equipment, guardrails, ladders and flooropenings. It consists of five items and their subparts.A serious violation is defined as an act or failure to act which maycause serious injury or death to an employee._Item 1, a through c_During the course of his inspection and while accompanied by Mr. LynnDavis, respondent’s project superintendent, Compliance Officer Blackobserved one of respondent’s employees wearing a leatherfield-manufactured safety belt. Upon examination of the belt, Blackdetermined it bore no ANSI approval tag and was of unsafeconstruction[[1\/]] and design. He also determined from the employeethat the belt had been subject to two \”in-service loadings\” when theemployee felt while working on other jobs. He further concluded thatrespondent had no program to inspect belts to assure they were adequateto protect employees. The employee was instructed by SuperintendentDavis to remove the belt and replace it with an approved belt furnishedby the respondent. On the following day, this same employee was againobserved wearing the same leather belt (Ex. C-7, C-10; Tr. 84-90). Onthe basis of this information, Black cited violations of 29 C.F.R. ?1910.132(b) and (c)[[2\/]] and 29 C.F.R. ? 1926.104(a).[[3\/]]Despite respondent’s protestations that belts were regularly inspectedfor adequacy by foremen and that it was common for steelworkers to usetheir own leather belts, the foregoing incident is sufficient to sustainitems 1a, 1b and 1c of the Secretary’s allegations as seriousviolations. If respondent did, in fact, have a program to insure theadequacy of belts, this incident establishes it was ineffective inoperation.Items 1d and e allege violations of 29 C.F.R. ? 1926.104(b) and(d)[[4\/]] for permitting an employee to tie off below the point ofoperation while using a lanyard which would allow a fall of more thansix feet. This allegation is backed on Black’s observation of theemployee depicted in exhibits C-4, C-9 and C-10. Black’s testimonyindicates he saw this employee tie off on a beam at knee level and thenclimb to a work area above the beam (Tr. 94, 350). Black’s testimonywas conflicting concerning the length of the lanyard. At one point, heindicated the lanyard was ten feet in length, then eight feet, andfinally under cross-examination he was unable to state what length thelanyard would be after it was looped around the beam to tie off (Tr.355). The evidence is insufficient to sustain the burden of proof withregard to items 1d and e. These items will be vacated._Item 2_Items 2a and 2b relate to alleged violations of 29 C.F.R. ?1926.450(a)(9)[[5\/]] and 29 C.F.R. ? 1926.500(b)(2)[[6\/]] with regard totemporary ladders in use on the sixth, seventh and eighth floors andunguarded floor openings around ladderways.The evidence is uncontradicted that the side rails of ladders used byrespondent’s employees extended less than the 36 inches required by thestandard and the ladderway openings were unguarded (Ex. C-11, C-12; Tr.105-107, 264, 297, 495, 556). This is a clear violation, _ScherrConstruction Co_., 82 OSAHRC 21\/A2, 10 BNA OSHC 1541, 1982 CCH OSHD ?26,021 (No. 80-1383, 1982); _Stephen Coates_, 81 OSAHRC 87\/F10, 10 BNAOSHC 1040, 1981 CCH OSHD ? 25,679 (No. 80-3462, 1981); _Austin_ _BridgeCo_., 81 OSAHRC 86\/E7, 10 BNA OSHC 1013, 1981 CCH OSHD ? 25,666 (No.80-6003, 1981); and will be affirmed as a serious violation._Item 3_This item relates to a wire rope guardrail on the sixth floor of theproject which deflected approximately 14 inches when pressure wasapplied thereto by Compliance Officer Black (Ex. C-14; Tr. 115-117). This condition breached the standard found at 29 C.F.R. ?1926.500(f)(vi)(b) which requires \”a strength to withstand . . . 200pounds . . . pressure with a minimum of deflection.\” However, thisappears to be an isolated occurrence with limited, if any, employeeexposure (Tr. 537-538) and will be considered a _de_ _minimis_ violation._Item 4_This item cites a violation of 29 C.F.R. ? 1926.750(b)(1)(i)[[7\/]] forfailure to solidly plank or deck over floors on the seventh and ninthfloors of the structure. This charge is supported by photographs (Ex.C-15, C- 16, C-17) which show small openings running parallel to beams. Respondent urges these openings were \”access openings\” as provided forin the standard which would afford respondent’s employees space to boltand weld the exposed beams before the decking was completed (Tr.538-539). This explanation is both plausible and in harmony with thespecific language of the standard excepting such openings. Accordingly,this item will be vacated._Item 5_This item charges respondent with a failure to provide wire ropeguarding around the periphery of temporary floors on the fifth, sixthand seventh level, as required by 29 C.F.R. ?1926.750(b)(1)(iii).[[8\/]] The photographic evidence to support thischarge is contained in exhibits C-20 through C-25, which reflect wirerope guarding attached to columns on the periphery, but open spacebetween the floor edge and the periphery beams. This situation wasexplained in the testimony of respondent’s superintendent (Tr.543-546). Briefly summarized, the flooring had initially been completedto the periphery at the time the wire rope guarding was installed. Sections of this floor were then removed to permit the bolting andwelding operations on the beams. Once this work was completed, theremoved flooring was then replaced. Employees were exposed only duringthe time required to bolt and weld the beams. This explanation isfeasible and this item will be vacated._WILLFUL CITATION NO. 2_Citation number two charges violations of three separate standards, allof which are considered by the Secretary to be willful in nature. Awillful violation is an act done by an employer which shows anintentional disregard of or plain indifference to the requirements ofthe Act. _Georgia Electric Co. v. Marshall_, 595 F.2d 309 (5th Cir. 1979)._Item 1a_This item charges violations of 29 C.F.R. ? 1926.28(a)[[9\/]] for failureto require the use of safety belts and lanyards when appropriate. Whilethe record indicates respondent furnished safety belts and lanyards tohis employees, it appears the decision to tie off was left largely tothe discretion of each individual. As a usual practice, steelworkerstied off at each work site but did not tie off when travelling the steelfrom one work site to another. The acquiescence of the Secretary inthis industry practice was conceded by Compliance Officer Black whoadmitted during his testimony that tying off when travelling wasimpractical (Tr. 548). It also appears to be common and acceptedpractice for steelworkers not to tie off when crossing over guardrailsbecause this creates a tripping hazard. Witness testimony confirmed thepoint (Tr. 313, 517, 550). Accordingly, it is determined that industrypractice and custom is to tie off while at the work site but not whiletravelling or crossing over guardrails. Subitems (a), (b) and (e)relate to charges that employees failed to tie off while travelling orwhile crossing over guardrails. Since these practices appear to be inaccord with accepted industry practice, these items will be vacated.Subitem (c) relates to an employee bolting up steel on the ninth floorwho did not tie off because his lanyard was too short to reacharound the beam (Ex. C-31; Tr. 174). Respondent does not seriouslydispute this charge but alleges the employee had tried to tie off bysnapping the end of the lanyard to the flange of a beam (Tr. 551). Thismethod did not provide fall protection but does indicate an effort bythe employee to follow respondent’s policy of tying off when working. The charge will be reduced from willful and affirmed as a serious violation.The evidence with respect to subitem (d) is in dispute. ComplianceOfficer Black first asserted he observed Ray Brasher, a lead man, climbthrough the guardrails on the seventh floor and perform work on thehorizontal steel without wearing a safety belt or lanyard (Tr. 181). After looking at exhibits C-33, C-34, and C-35, he recanted thistestimony to the extent that Brasher was wearing a belt and lanyard(which the photographs clearly show) but insisted that Brasher was nottied off (Tr. 183-184). Brasher testified he \”snapped into\” the topperimeter cable as shown in exhibit C-35 and was adequately secured (Tr.512-513). On balance, Brasher’s testimony is more credible and thissubitem will be vacated._Item 1b_This portion of the willful citation relates to respondent’s failure toinstall safety nets under the eighth and ninth floors of the bridge areaduring the erection period and charges a violation of 29 C.F.R. ?1926.750(b)(1)(ii).[[10\/]] To establish a prima facie violation of thisstandard, the Secretary relied upon the testimony of Compliance OfficerBlack who testified the bridge area was not adaptable to temporaryfloors or the use of scaffolds and was positioned some 140 feet aboveground level with no nets in use (Ex. C-41–C-48). However, asCompliance Officer Black’s testimony developed, it became clear that theerection of the bridges had occurred during the period encompassed byCompliance Officer Bailey’s inspection and that this work had beencompleted by the time of Black’s inspection. This point is significantbecause, once the bridges were up and connected, employees could tie offto a stable structure and nets would no longer be necessary (Tr. 217). Black did not observe anyone working in the area of the alleged hazardduring his inspection (Tr. 220-222). While Black attempted to indicatea method by which nets could have been used _at the_ _time of hisinspection_, he was in no position to offer similar testimony withrespect to circumstances in existence at the time the bridges wereinstalled. Respondent’s superintendent, Mr. Davis, testified it wasimpossible to hang nets during the bridge erection (Tr. 553) and thistestimony went unrefuted by a competent, witness.[[11\/]] Accordingly,this item will be vacated._Item 1c_This item alleges willful violations of 29 C.F.R. ?1926.750(b)(2)(i)[[12\/]] for failure to maintain tightly planked floorswithin two stories (or 30 feet) below work areas. The instances citedin this item are the same as those recited in willful citation, subitems(a), (d) and (e) which related to personal fall protection on thesouthwest and northwest corners of the structure (Tr. 227). Each ofthese conditions involved locations on the exterior[[13\/]] corners ofthe structure (Tr. 556) where there was \”nothing to support\” the decking(Ex. C-27; Tr. 557). These areas also had to remain open for accessuntil the bolting and welding had occurred at which time a curb barrierwas installed to protect employees from exterior falls (Tr. 557-558). During the interim period, employees were required to tie off. Underthese circumstances, it does not appear possible to install temporaryflooring as urged by the Secretary and this item will be vacated._REPEATED CITATION NO. 3_This citation charges respondent with repeated violations of 29 C.F.R. ?1926.752(j)[[14\/]] and 29 C.F.R. ? 1926.750(b)(2)(i). To establish thistype of violation, the Secretary must show respondent was previouslycited for a violation substantially similar to that now charged and theprior citation had become final before the occurrence of the repeatedviolation.Item 1a relates to unguarded or uncovered floor openings on the sixth,seventh, eighth and ninth floors which provided openings for elevatorshafts, stairways and ductwork (Ex. C-49–C-52). The exhibits clearlyshow these large openings which were neither covered nor guarded. Thissame condition had been observed and cited by Compliance Officer Nash inDecember 1983 (Ex. C-1). The citation became a final order of the ReviewCommission when it went uncontested. Respondent argues that these were\”access openings\” of the type excluded in the standard and, in anyevent, \”each opening was guarded as soon as it was physically possibleto guard them\” (Resp. brief p. 55). Unlike the openings found to be\”access openings\” in item four of the serious citation, these openingswere large enough to accommodate elevators and stairways (Ex.C-49–C-52) and should have been either covered or guarded.Item 1b of this citation charges respondent with failure to installtightly planked and substantial floors over elevator shafts, ductworkand stairway openings on the eighth and ninth floors of the tower incontravention of 29 C.F.R. ? 1926.750(b)(2)(i). Respondent hadpreviously become aware this general requirement as a result of theinspection conducted in December 1983. This item is supported in therecord (Ex. C-49– C-56; Tr. 241-242), and will be affirmed._OTHER CITATION NO. 4_This citation charges respondent with two nonserious violations ofstandards. No penalties are proposed.Item one relates to a Wassel air receiver tank located on the sixthfloor at column J which did not have a gauge or safety valve as requiredby 29 C.F.R. ? 1910.169(b)(3)(i). [[15\/]] This tank is depicted inexhibit C-57 which shows no gauge or valve. Such a condition is a clearviolation of the standard.Item two relates to the exposure of employee’s to vertically protrudingreinforcing steel bars located on the north and south sides of the towerbuilding. This condition is depicted in exhibit C-58 which shows theprotruding bars to be unprotected to prevent the hazard of impalement asrequired by 29 C.F.R. ? 1926.700(b)(2).[[16\/]] This item will be affirmed._PENALTIES_The Secretary proposes aggregate penalties in this case of $23,200,which amount, in view of the findings made, is excessive. As previouslyobserved, respondent did not operate in such a fashion to reflect anindifference to or disregard of the Act’s requirements. It is notedthat respondent fostered regular safety meetings wherein fall hazardswere discussed with employees together with respondent’s policies andpractices to abate these hazards. Respondent undertook reasonable stepsto install periphery guarding and flooring as the work progressed andgenerally followed a pattern of compliance with the steel erectionstandards (Subpart R).Serious citation number one consists of five items with a proposedpenalty of $3,200. Item one of this citation was affirmed in part andvacated in part. Item two was affirmed in its entirety. Item three wasreduced from serious to _de_ _minimis_. Items four and five werevacated. A penalty of $1,000 is considered appropriate for this citation.Willful Citation number two consists of three items with varioussubitems and proposes a $10,000 penalty. Only one subitem of thiscitation [1(c)] has been affirmed with a reduction in characterizationfrom willful to serious. A penalty of $1,000 is considered appropriatefor this violation.Repeat citation number three consists of two items with a proposedpenalty of $10,000. It is in this area that respondent has demonstratedculpable failure to meet its obligations and a $5,000 penalty will beassessed._FINDINGS OF FACT _1. Midwest Steel Erectors Company, Inc., is a corporation engaged inthe construction engaged in the construction industry. During theperiod in question, this respondent was engaged in the erection ofstructural steel for a multitiered building in Birmingham, Alabama. Respondent has employees who receive or otherwise work on goods thathave been shipped in commerce.2. During a five-month period commencing in December 1983, respondentwas inspected on three separate occasions by compliance officers of theOccupational Safety and Health Administration. The inspection conductedin December 1983 disclosed serious violations of 29 C.F.R. ? 1926.752relating to respondent’s failure to cover or guard large openings inelevated floors. The citation issued as a result of this inspection wasuncontested and became a final order of the Commission through theprocess of law.3. A second inspection of respondent was conducted in March 1984. Thisinspection disclosed unguarded floor openings.4. The third inspection was conducted by Compliance Officer Black,during the period April 9 through April 12, 1984, and resulted in theissuance of citations charging respondent with willful, repeated,serious and other violations of the Act and proposing penalties of$23,200. These citations were contested by respondent and form thebasis for the findings to follow.5. During the course of the inspection, Compliance Officer Blackobserved one of respondent’s employees wearing a leatherfield-manufactured safety belt which bore no ANSI approval tag. Thisbelt was of unsafe design and had been subjected to \”in-serviceloadings\” while used on other jobs. Respondent did not have aneffective program to assure that safety belts used by employees wereadequate or that belts subjected to \”in-service loading\” were removedfrom service.6. Temporary ladders in use on the sixth, seventh and eighth floors hadside rails which extended less than 36 inches above the openings. Theopenings around the ladderways were unprotected by guardrails or toeboards.7. A wire rope guardrail in use on the sixth floor of the project wasnot drawn taut and deflected approximately 14 inches when pressure wasapplied thereto by Compliance Officer Black. However, this conditionwas located in an area of limited employee access.8. On the seventh and ninth floors of the structure, small openingsexisted in the floor or deck which openings ran parallel to beams. These were \”access openings\” which afforded employees space to bolt andweld the beams, before the decking was completed.9. On the fifth, sixth and seventh floors, open spaces existed betweenthe floor edge and periphery guarding. The flooring had initially beencompleted to the periphery at which time the wire rope guard wasinstalled. Sections of this floor had been removed to permit boltingand welding operations on the beams and this flooring was replaced uponcompletion of the operations.10. Respondent had available and furnished safety belts and lanyards toemployees. As a usual practice, steelworkers used the belts andlanyards and tied off at the work site but did not tie off whentravelling the steel from one work site to another. Likewise,steelworkers did not tie off when crossing over guardrails since thispractice created a tripping hazard. The foregoing is in accord withindustry practice and custom and is conceded by the Secretary.11. During the course of the inspection, Compliance Officer Blackobserved one employee bolting up steel on the ninth floor who was notadequately tied off to prevent falls.12. The Secretary did not establish that the use of safety nets waspossible during the period bridges were being erected on the eighth andninth floors of the structure.13. It was not possible to install tightly planked floors on thesouthwest and northwest exterior corners of the structure since therewas nothing to support such floors in these areas.14. Respondent failed to guard or cover large floor openings to be usedfor elevator shafts, stairways and ductwork on the sixth, seventh,eighth and ninth floors.15. A Wassel air receiver tank located on the sixth floor at column Jwas not provided with a gauge or safety relief valve.16. Vertically protruding reinforcing steel bars located on the northand south sides of the tower building were not protected to prevent thehazard of impalement._CONCLUSIONS OF LAW_1. Respondent is an employer engaged in an industry affecting commerceand the Review Commission has jurisdiction of the parties and subjectmatter in this case.2. The respondent has seriously violated the following standards:29 C.F.R. ? 1910.132(b)29 C.F.R. ? 1910.132(c)29 C.F.R. ? 1926.104(a)29 C.F.R. ? 1926.450(a)(9)29 C.F.R. ? 1926.500(b)(2)3. The respondent has not violated the following standards:29 C.F.R. ? 1926.104(b)29 C.F.R. ? 1926.104(d)29 C.F.R. ? 1926.750(b)(1)(i)29 C.F.R. ? 1926.750(b)(1)(iii)4. The alleged serious violation of 29 C.F.R. ? 1926.500(f)(vi)(b) ismodified to reduce the characterization from serious to _de_ _minimis_.5. The evidence does not reflect that respondent willfully violated 29C.F.R. ? 1926.28(a), 29 C.F.R. ? 1926.750(b)(1)(ii) and 29 C.F.R. ?1926.750(b)(2)(i). However, it is concluded that respondent seriouslyviolated 29 C.F.R. ? 1926.28(a) on one occasion.6. Respondent has repeatedly violated 29 C.F.R. ? 1926.752(j) and 29C.F.R. ? 1926.750(b)(2)(i).7. Respondent has committed other than serious violations of 29 C.F.R.? 1910.169(b)(3)(i) and 29 C.F.R. ? 1926.700(b)(2)._ORDER_It is hereby ORDERED:1. Serious Citation No. 1, Items 1a, 1b and 1c, are affirmed.2. Serious Citation No. 1, Items 1d and 1e, are vacated.3. Serious Citation No. 1, Item 2, is affirmed.4. Serious Citation No. 1, Item 3, is reduced from serious and affirmedas a _de_ _minimis_ violation.5. Serious Citation No. 1, Items 4 and 5, are vacated.6. Willful Citation No. 2 is vacated except with respect to Item 1a,Subpart c, which is affirmed as a serious violation.7. Repeat Citation No. 3 is affirmed in its entirety.8. Other than Serious Citation No. 4 is affirmed in its entiretyIt is further ORDERED:A total penalty of $7,000 is assessed.Dated this 19th day of August 1985.EDWIN G. SALYERS,JudgeFOOTNOTES:[[1\/]] ANSI standard A10.14-1975 excepts leather as a material for beltconstruction (Ex. C-6).[[2\/]] Sections 1910.132(b) and (c) of 29 C.F.R. state:(b) _Employee-owned equipment_. Where employees provide their ownprotective equipment, the employer shall be responsible to assure itsadequacy, including proper maintenance, and sanitation of such equipment.(c) _Design_. All personal protective equipment shall be of safe designand construction for the work to be performed.[[3\/]] Section 1926.104(a) of 29 C.F.R. provides:(a) Lifelines, safety belts, and lanyards shall be used only foremployee safeguarding. Any lifeline, safety belt, or lanyard actuallysubjected to in-service loading, as distinguished from static loadtesting, shall be immediately removed from service and shall not be usedagain for employee safeguarding.[[4\/]] Sections 1926.104(b) and (d) of 29 C.F.R. provide:(b) Lifelines shall be secured above the point of operation to ananchorage or structural member capable of supporting a minimum deadweight of 5,400 pounds.(d) Safety belt lanyard shall be a minimum of 1\/2-inch nylon, orequivalent, with a maximum length to provide for a fall of no greaterthan 6 feet. The rope shall have a nominal breaking strength of 5,400pounds.[[5\/]] Section 1926.450(a)(9) of 29 C.F.R. provides:(9) The side rails shall extend not less than 36 inches above thelanding. When this is not practical, grab rails, which provide a securegrip for an employee moving to or from the point of access, shall beinstalled.[[6\/]] Section 1926.500(b)(2) of 29 C.F.R. states:(2) Ladderway floor openings or platforms shall be guarded by standardrailings with standard toe boards on all exposed sides, except atentrance to opening with the passage through the railing either providedwith a swinging gate or so offset that a person cannot walk directlyinto the opening.[[7\/]] Section 1926.750(b)(1)(i) of 29 C.F.R. provides as follows:(b) _Temporary flooring–skeleton steel construction in tieredbuildings_. (1)(i) The derrick or erection floor shall be solidlyplanked or decked over its entire surface except for access openings. Planking or decking of equivalent strength, shall be of proper thicknessto carry the working load. Planking shall be not less than 2 inchesthick full size undressed, and shall be laid tight and secured toprevent movement.[[8\/]] Section 1926.750(b)(1)(iii) of 29 C.F.R. states as follows:(iii) Floor periphery–safety railing. A safety railing of 1\/2-inchwire rope or equal shall be installed, approximately 42 inches high,around the periphery of all temporary-planked or temporary metal-deckedfloors of tier buildings and other multifloored structures duringstructural steel assembly.[[9\/]] Section 1926.28(a) of 29 C.F.R. reads as follows:(a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.[[10\/]] Section 1926.750(b)(1)(ii) of 29 C.F.R. states:(ii) On buildings or structures not adaptable to temporary floors, andwhere scaffolds are not used, safety nets shall be installed andmaintained whenever the potential fall distance exceeds two stories or25 feet. The nets shall be hung with sufficient clearance to preventcontacts with the surface of structures below.[[11\/]] Compliance Officer Bailey was at the site during the erectionperiod and at one point Secretary’s counsel indicated an intention torecall Bailey to clarify the Secretary’s position, but this was not done(Tr. 217).[[12\/]] Section 1926.750(b)(2)(i) of 29 C.F.R. states:(2)(i) Where skeleton steel erection is being done, a tightly plankedand substantial floor shall be maintained within two stories or 30 feet,whichever is less, below and directly under that portion of each tier ofbeams on which any work is being performed, except when gathering andstacking temporary floor planks on a lower floor, in preparation fortransferring such planks for use on an upper floor. Where such a flooris not practicable, paragraph (b)(1)(ii) of this section applies.[[13\/]] Respondent cites _Adams Steel Erection, Inc_., _supra_, insupport of the proposition that subpart R of the regulation relates onlyto interior falls. This case was recently overturned by the thirdcircuit. _Donovan v. Adams Steel Erection Inc_., opinion filed July 5,1985.[[14\/]] Section 1926.752(j) of 29 C.F.R. provides:(j) All unused openings in floors, temporary or permanent, shall becompletely planked over or guarded in accordance with Subpart M of thispart.[[15\/]] Section 1910.169(b)(3)(i) of 29 C.F.R. reads as follows:(3) _Gages and valves_. (1) Every air receiver shall be equipped withan indicating pressure gage (so located as to be readily visible) andwith one or more spring-loaded safety valves. The total relievingcapacity of such safety valves shall be such as to prevent pressure inthe receiver from exceeding the maximum allowable working pressure ofthe receiver by more than 10 percent.[[16\/]] Section 1926.700(b)(2) of 29 C.F.R. provides:(2) Employees shall not be permitted to work above vertically protrudingreinforced steel unless it has been protected to eliminate the hazard ofimpalement.”