“Docket No. 84-0710 SECRETARY OF LABOR,Complainant,v.MIDWEST STEEL ERECTION, INC., Respondent.OSHRC Docket No. 84-0710ORDER The Commission approves the parties’ settlementagreement.\u00a0 The judge’s decision becomes the final order of the Commission as tothose citation items not resolved by the settlement agreement.FOR THE COMMISSIONRay H. Darling, Jr. Executive Secretary DATED:\u00a0 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 of Labor, Birmingham, Alabama, on behalf of complainant. George A. Harper, Esquire, McCarty, Wilson, Rader andMash, P.C., Ennis, Texas, on behalf of respondent.DECISION AND ORDERSALYERS, Judge:\u00a0 During the period in question,the respondent, Midwest Steel Erectors Company, Inc., was engaged in the erection ofstructural steel at a multi-tiered building under construction for Alabama Power inBirmingham, Alabama.\u00a0 As a result of employee complaints, respondent’s operations atthe project were inspected on three separate occasions during a five-month period by fourdifferent compliance officers of the Occupational Safety and Health Administration.\u00a0Each of these inspections culminated in the issuance of citations charging respondent withviolations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.)and the assessment of penalties.The first of these inspections was conducted during the early stages of construction byCompliance Officer Suzanne Nash in December 1983.\u00a0 At the time, Ms. Nash had beenemployed by the agency for more than nine years and had conducted in excess of 800inspections (Tr. 10-11).\u00a0 During this inspection, Ms. Nash observed loose deckingaround an elevator shaft and an unguarded opening on the second floor of the buildingunder construction which she deemed to be violative of 29 C.F.R. ? 1926.752.\u00a0 Theseconditions, together with the need to protect employees from fall hazards, were discussedby Ms. Nash with respondent’s jobsite superintendent, Lynn R. Davis, Jr., at theconclusion of the inspection (Tr. 20- 23).\u00a0 Mr. Davis agreed to take action tocorrect the conditions brought to his attention and was \”very\” cooperative (Tr.29).\u00a0 However, a serious citation was issued and went uncontested by respondent (Ex.C-1).Compliance Officer Terry Bailey, with eight years ofagency experience, conducted a second inspection of respondent during the period March22–27, 1984, and found certain floor openings on the fifth floor of the structure werenot guarded by standard railings, toeboards or covers.\u00a0 He considered this conditionto be in serious violation of 29 C.F.R. ? 1926.500(b)(1) and proposed a citation to thateffect which citation, apparently, went uncontested by respondent (Tr. 35-36).\u00a0 It issignificant to note that Mr. Bailey’s inspection extended over a five-day period duringwhich time he considered a long list of possible fall hazards (Tr. 37-38). Despite thisrather extensive inspection, he found only one condition which required attention andassessed respondent’s program as \”one of the safest\” he had seen (Tr. 39).The third inspection was conducted by Compliance Officer Loyd Black in the company ofCompliance Officer William Powers during the period April 9–12, 1984.\u00a0 During thisinspection, Compliance Officer Black observed, and in many instances photographed,conditions which he considered to be flagrant safety violations.\u00a0 As a result of thisinspection, the Secretary of Labor issued a series of citations charging respondent withwillful, repeat, serious and other violations of the Act and proposed aggregate penaltiesof $23,200.\u00a0 Respondent contested all charges and a hearing was conducted inBirmingham, Alabama.\u00a0 Both parties have submitted briefs in the case and the matteris now ready for decision.The broad issues are:(1) Did respondent violate the standards as allegedin the citations?(2) If violations occurred, did the Secretary properly characterize the violations asserious, willful, repeat and other? (3) Are the proposed penalties reasonable?Before considering the substantive evidence relative to the charges leveled againstrespondent, it is necessary to deal with a collateral issue which permeates respondent’sentire defense.\u00a0 Throughout the hearing, respondent alluded to improper andinappropriate conduct by Compliance Officer Black during the course of his inspection andwhat respondent perceived to be gross inconsistencies in his testimony.\u00a0 Respondent’sbrief reiterates the contention that Compliance Officer Black’s \”conduct before,during and after the inspection, clearly demonstrates that he was biased againstMidwest\” (Resp. brief p. 5).\u00a0 Respondent does not specify what relief should beafforded by the Review Commission given such circumstances except to urge that Black’stestimony should be afforded \”little, if any weight.\”This aspect of the case has been considered inreaching a decision.\u00a0 It is noted that compliance officers in the two previousinspections, with experience comparable to that of Compliance Officer Black, consideredrespondent to be \”knowledgeable\” in safety and to have a safety program whichwas working well, whereas Compliance Officer Black concluded to the contrary.\u00a0 It isalso noted that Compliance Officer Black may have made certain statements during thecourse of his investigation indicating an overzealous attitude (Tr. 332-333, 337) whichconceivably could overshadow his objectivity in conducting an appropriate inspection.\u00a0 However, an employer cannot expose employees to obvious hazards simply because theSecretary has failed to cite these hazards during the course of previous inspections.\u00a0 See Cedar Construction Co. v. OSHRC, 587 F.2d 1303 (D. C. Cir. 1978).Likewise, unseemly conduct by a compliance officer, while not to be condoned, does notoverride objective evidence of hazardous conditions (e.g., photographs) which isfully supported in the record.Taking into consideration the circumstances justdescribed, an effort has been made to analyze the evidence with due regard to thepositions advanced by both parties.\u00a0 The very nature of steel erection is a dangerousundertaking recognized to be such by the Secretary and Review Commission (see AdamsSteel Erection, Inc., __ OSAHRC __, 11 BNA OSHC 2077, 1984 CCH OSHD ? 26,976 (No.77-4238, 1984), rev’d F.2d___ (3d Cir., July 5, 1985, No. 80-3586).\u00a0 Not all hazardscan be foreseen and rectified even by the most conscientious employer.\u00a0 In this casewhere the documentary evidence (photographs) clearly reveals a contravention of thestandards, the violations will be affirmed.\u00a0 In those instances where the evidencerequires the exercise of judgment in addition to the documentary evidence, considerationhas been given to the evidence and the arguments advanced by both parties and resolutionof the issue has been based on reason and recognition that the standards cannot be appliedin a fashion which is unrealistic.On the basis of the total record, certain conclusionshave been reached.\u00a0 It is concluded that safety belts and lanyards were a primarysafety device generally utilized by respondent whenever and wherever feasible. \u00a0Respondent made these devices available to each of its employees and required their usewith two notable exceptions.\u00a0 These exceptions support a finding that the policy wasnot always effectively enforced.\u00a0 It is also concluded, based on the record, thatrespondent employed certain progressive procedures to guard against fall hazards. \u00a0These included the installation of periphery guardrails and the installation of permanentand temporary floors as soon as these devices were realistically possible (Tr.561-562).\u00a0 It is further concluded that respondent failed to take the necessaryintermediate steps to cover or otherwise guard large floor openings which constituted fallhazards to employees while working around these areas and that this practice continueddespite the fact it was called to respondent’s attention during prior inspections. \u00a0Finally, it is concluded that respondent’s overall attention to safety was basicallyadequate with the exceptions just noted.\u00a0 Respondent’s conduct did not demonstratesufficient indifference to or disregard of the Act’s requirements to constitute willfulviolations.SERIOUS CITATION NO. 1This citation charges respondent with serious violations of standards relating to personalprotective equipment, guardrails, ladders and floor openings.\u00a0 It consists of fiveitems and their subparts.A serious violation is defined as an act or failureto act which may cause serious injury or death to an employee.Item 1, a through cDuring the course of his inspection and while accompanied by Mr. Lynn Davis, respondent’sproject superintendent, Compliance Officer Black observed one of respondent’s employeeswearing a leather field-manufactured safety belt.\u00a0 Upon examination of the belt,Black determined it bore no ANSI approval tag and was of unsafe construction[[1\/]] anddesign.\u00a0 He also determined from the employee that the belt had been subject to two\”in-service loadings\” when the employee felt while working on other jobs. \u00a0He further concluded that respondent had no program to inspect belts to assure they wereadequate to protect employees. The employee was instructed by Superintendent Davis toremove the belt and replace it with an approved belt furnished by the respondent. On thefollowing day, this same employee was again observed wearing the same leather belt (Ex.C-7, C-10; Tr. 84-90). On the basis of this information, Black cited violations of 29C.F.R. ? 1910.132(b) and (c)[[2\/]] and 29 C.F.R. ? 1926.104(a).[[3\/]]Despite respondent’s protestations that belts wereregularly inspected for adequacy by foremen and that it was common for steelworkers to usetheir own leather belts, the foregoing incident is sufficient to sustain items 1a, 1b and1c of the Secretary’s allegations as serious violations.\u00a0 If respondent did, in fact,have a program to insure the adequacy of belts, this incident establishes it wasineffective in operation.Items 1d and e allege violations of 29 C.F.R. ? 1926.104(b) and (d)[[4\/]] for permittingan employee to tie off below the point of operation while using a lanyard which wouldallow a fall of more than six feet.\u00a0 This allegation is backed on Black’s observationof the employee depicted in exhibits C-4, C-9 and C-10.\u00a0 Black’s testimony indicateshe saw this employee tie off on a beam at knee level and then climb to a work area abovethe beam (Tr. 94, 350).\u00a0 Black’s testimony was conflicting concerning the length ofthe lanyard.\u00a0 At one point, he indicated the lanyard was ten feet in length, theneight feet, and finally 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).\u00a0 Theevidence is insufficient to sustain the burden of proof with regard to items 1d and e.\u00a0 These items will be vacated.Item 2Items 2a and 2b relate to alleged violations of 29 C.F.R. ? 1926.450(a)(9)[[5\/]] and 29C.F.R. ? 1926.500(b)(2)[[6\/]] with regard to temporary ladders in use on the sixth,seventh and eighth floors and unguarded floor openings around ladderways. The evidence is uncontradicted that the side rails ofladders used by respondent’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).\u00a0 This is a clear violation, Scherr Construction Co., 82 OSAHRC21\/A2, 10 BNA OSHC 1541, 1982 CCH OSHD ? 26,021 (No. 80-1383, 1982); Stephen Coates,81 OSAHRC 87\/F10, 10 BNA OSHC 1040, 1981 CCH OSHD ? 25,679 (No. 80-3462, 1981); AustinBridge Co., 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 3This item relates to a wire rope guardrail on the sixth floor of the project whichdeflected approximately 14 inches when pressure was applied thereto by Compliance OfficerBlack (Ex. C-14; Tr. 115-117).\u00a0 This condition breached the standard found at 29C.F.R. ? 1926.500(f)(vi)(b) which requires \”a strength to withstand . . . 200 pounds. . . pressure with a minimum of deflection.\” However, this appears to be an isolatedoccurrence with limited, if any, employee exposure (Tr. 537-538) and will be considered a deminimis violation.Item 4This item cites a violation of 29 C.F.R. ? 1926.750(b)(1)(i)[[7\/]] for failure to solidlyplank or deck over floors on the seventh and ninth floors of the structure.\u00a0 Thischarge is supported by photographs (Ex. C-15, C- 16, C-17) which show small openingsrunning parallel to beams.\u00a0 Respondent urges these openings were \”accessopenings\” as provided for in the standard which would afford respondent’s employeesspace to bolt and weld the exposed beams before the decking was completed (Tr. 538-539).\u00a0 This explanation is both plausible and in harmony with the specific language of thestandard excepting such openings.\u00a0 Accordingly, this item will be vacated.Item 5This item charges respondent with a failure to provide wire rope guarding around theperiphery of temporary floors on the fifth, sixth and seventh level, as required by 29C.F.R. ? 1926.750(b)(1)(iii).[[8\/]]\u00a0 The photographic evidence to support thischarge is contained in exhibits C-20 through C-25, which reflect wire rope guardingattached to columns on the periphery, but open space between the floor edge and theperiphery beams.\u00a0 This situation was explained in the testimony of respondent’ssuperintendent (Tr. 543-546).\u00a0 Briefly summarized, the flooring had initially beencompleted to the periphery at the time the wire rope guarding was installed. \u00a0Sections of this floor were then removed to permit the bolting and welding operations onthe beams.\u00a0 Once this work was completed, the removed flooring was thenreplaced.\u00a0 Employees were exposed only during the time required to bolt and weld thebeams.\u00a0 This explanation is feasible and this item will be vacated. WILLFUL CITATION NO. 2Citation number two charges violations of three separate standards, all of which areconsidered by the Secretary to be willful in nature.\u00a0 A willful violation is an actdone by an employer which shows an intentional disregard of or plain indifference to therequirements of the Act.\u00a0 Georgia Electric Co. v. Marshall, 595 F.2d 309 (5thCir. 1979).Item 1aThis item charges violations of 29 C.F.R. ? 1926.28(a)[[9\/]] for failure to require theuse of safety belts and lanyards when appropriate.\u00a0 While the record indicatesrespondent furnished safety belts and lanyards to his employees, it appears the decisionto tie off was left largely to the discretion of each individual.\u00a0 As a usualpractice, steelworkers tied off at each work site but did not tie off when travelling thesteel from one work site to another.\u00a0 The acquiescence of the Secretary in thisindustry practice was conceded by Compliance Officer Black who admitted during histestimony that tying off when travelling was impractical (Tr. 548).\u00a0 It also appearsto be common and accepted practice for steelworkers not to tie off when crossing overguardrails because this creates a tripping hazard.\u00a0 Witness testimony confirmed thepoint (Tr. 313, 517, 550).\u00a0 Accordingly, it is determined that industry practice andcustom is to tie off while at the work site but not while travelling or crossing overguardrails.\u00a0 Subitems (a), (b) and (e) relate to charges that employees failed to tieoff while travelling or while crossing over guardrails.\u00a0 Since these practices appearto be in accord with accepted industry practice, these items will be vacated.Subitem (c) relates to an employee bolting up steelon the ninth floor who did not tie off because his lanyard was too short to reach around the beam (Ex. C-31; Tr. 174).\u00a0 Respondent does not seriously dispute thischarge but alleges the employee had tried to tie off by snapping the end of the lanyard tothe flange of a beam (Tr. 551).\u00a0 This method did not provide fall protection but doesindicate an effort by the employee to follow respondent’s policy of tying off whenworking.\u00a0 The charge will be reduced from willful and affirmed as a seriousviolation.The evidence with respect to subitem (d) is indispute.\u00a0 Compliance Officer Black first asserted he observed Ray Brasher, a leadman, climb through the guardrails on the seventh floor and perform work on the horizontalsteel without wearing a safety belt or lanyard (Tr. 181).\u00a0 After looking at exhibitsC-33, C-34, and C-35, he recanted this testimony to the extent that Brasher was wearing abelt and lanyard (which the photographs clearly show) but insisted that Brasher was nottied off (Tr. 183-184).\u00a0 Brasher testified he \”snapped into\” the topperimeter cable as shown in exhibit C-35 and was adequately secured (Tr. 512-513). \u00a0On balance, Brasher’s testimony is more credible and this subitem will be vacated.Item 1bThis portion of the willful citation relates to respondent’s failure to install safetynets under the eighth and ninth floors of the bridge area during the erection period andcharges a violation of 29 C.F.R. ? 1926.750(b)(1)(ii).[[10\/]]\u00a0 To establish a primafacie violation of this standard, the Secretary relied upon the testimony of ComplianceOfficer Black who testified the bridge area was not adaptable to temporary floors or theuse of scaffolds and was positioned some 140 feet above ground level with no nets in use(Ex. C-41–C-48).\u00a0 However, as Compliance Officer Black’s testimony developed, itbecame clear that the erection of the bridges had occurred during the period encompassedby Compliance Officer Bailey’s inspection and that this work had been completed by thetime of Black’s inspection.\u00a0 This point is significant because, once the bridges wereup and connected, employees could tie off to a stable structure and nets would no longerbe necessary (Tr. 217).\u00a0 Black did not observe anyone working in the area of thealleged hazard during his inspection (Tr. 220-222).\u00a0 While Black attempted toindicate a method by which nets could have been used at the time of hisinspection, he was in no position to offer similar testimony with respect tocircumstances in existence at the time the bridges were installed.\u00a0 Respondent’ssuperintendent, Mr. Davis, testified it was impossible to hang nets during the bridgeerection (Tr. 553) and this testimony went unrefuted by a competent, witness.[[11\/]]Accordingly, this item will be vacated.Item 1cThis item alleges willful violations of 29 C.F.R. ? 1926.750(b)(2)(i)[[12\/]] for failureto maintain tightly planked floors within two stories (or 30 feet) below work areas.\u00a0 The instances cited in this item are the same as those recited in willful citation,subitems (a), (d) and (e) which related to personal fall protection on the southwest andnorthwest corners of the structure (Tr. 227).\u00a0 Each of these conditions involvedlocations on the exterior[[13\/]] corners of the structure (Tr. 556) where there was\”nothing to support\” the decking (Ex. C-27; Tr. 557).\u00a0 These areas also hadto remain open for access until the bolting and welding had occurred at which time a curbbarrier was installed to protect employees from exterior falls (Tr. 557-558).\u00a0 Duringthe interim period, employees were required to tie off.\u00a0 Under these circumstances,it does not appear possible to install temporary flooring as urged by the Secretary andthis item will be vacated.REPEATED CITATION NO. 3This 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).\u00a0 To establish this type ofviolation, the Secretary must show respondent was previously cited for a violationsubstantially similar to that now charged and the prior citation had become final beforethe occurrence of the repeated violation.Item 1a relates to unguarded or uncovered flooropenings on the sixth, seventh, eighth and ninth floors which provided openings forelevator shafts, stairways and ductwork (Ex. C-49–C-52).\u00a0 The exhibits clearly showthese large openings which were neither covered nor guarded.\u00a0 This same condition hadbeen observed and cited by Compliance Officer Nash in December 1983 (Ex. C-1). Thecitation became a final order of the Review Commission when it went uncontested. \u00a0Respondent argues that these were \”access openings\” of the type excluded in thestandard and, in any event, \”each opening was guarded as soon as it was physicallypossible to guard them\” (Resp. brief p. 55).\u00a0 Unlike the openings found to be\”access openings\” in item four of the serious citation, these openings werelarge enough to accommodate elevators and stairways (Ex. C-49–C-52) and should have beeneither covered or guarded.Item 1b of this citation charges respondent with failure to install tightly planked andsubstantial floors over elevator shafts, ductwork and stairway openings on the eighth andninth floors of the tower in contravention of 29 C.F.R. ? 1926.750(b)(2)(i). \u00a0Respondent had previously become aware this general requirement as a result of theinspection conducted in December 1983.\u00a0 This item is supported in the record (Ex.C-49– C-56; Tr. 241-242), and will be affirmed.OTHER CITATION NO. 4This citation charges respondent with two nonserious violations of standards.\u00a0 Nopenalties are proposed.Item one relates to a Wassel air receiver tanklocated on the sixth floor at column J which did not have a gauge or safety valve asrequired by 29 C.F.R. ? 1910.169(b)(3)(i). [[15\/]] This tank is depicted in exhibit C-57which shows no gauge or valve.\u00a0 Such a condition is a clear violation of thestandard.Item two relates to the exposure of employee’s tovertically protruding reinforcing steel bars located on the north and south sides of thetower building.\u00a0 This condition is depicted in exhibit C-58 which shows theprotruding bars to be unprotected to prevent the hazard of impalement as required by 29C.F.R. ? 1926.700(b)(2).[[16\/]]\u00a0 This item will be affirmed.PENALTIESThe Secretary proposes aggregate penalties in thiscase of $23,200, which amount, in view of the findings made, is excessive.\u00a0 Aspreviously observed, respondent did not operate in such a fashion to reflect anindifference to or disregard of the Act’s requirements.\u00a0 It is noted that respondentfostered regular safety meetings wherein fall hazards were discussed with employeestogether with respondent’s policies and practices to abate these hazards.\u00a0 Respondentundertook reasonable steps to install periphery guarding and flooring as the workprogressed and generally followed a pattern of compliance with the steel erectionstandards (Subpart R).Serious citation number one consists of five itemswith a proposed penalty of $3,200.\u00a0 Item one of this citation was affirmed in partand vacated in part.\u00a0 Item two was affirmed in its entirety.\u00a0 Item three wasreduced from serious to de minimis.\u00a0 Items four and five werevacated.\u00a0 A penalty of $1,000 is considered appropriate for this citation.Willful Citation number two consists of three items with various subitems and proposes a$10,000 penalty.\u00a0 Only one subitem of this citation [1(c)] has been affirmed with areduction in characterization from willful to serious.\u00a0 A penalty of $1,000 isconsidered appropriate for this violation.Repeat citation number three consists of two itemswith a proposed penalty of $10,000.\u00a0 It is in this area that respondent hasdemonstrated culpable failure to meet its obligations and a $5,000 penalty will beassessed.FINDINGS OF FACT 1.\u00a0 Midwest Steel Erectors Company, Inc., is acorporation engaged in the construction engaged in the construction industry. \u00a0During the period in question, this respondent was engaged in the erection of structuralsteel for a multitiered building in Birmingham, Alabama.\u00a0 Respondent has employeeswho receive or otherwise work on goods that have been shipped in commerce. 2.\u00a0 During a five-month period commencing in December 1983, respondent wasinspected on three separate occasions by compliance officers of the Occupational Safetyand Health Administration.\u00a0 The inspection conducted in December 1983 disclosedserious violations of 29 C.F.R. ? 1926.752 relating to respondent’s failure to cover orguard large openings in elevated floors.\u00a0 The citation issued as a result of thisinspection was uncontested and became a final order of the Commission through the processof law.3.\u00a0 A second inspection of respondent was conducted in March 1984.\u00a0 Thisinspection disclosed unguarded floor openings.4.\u00a0 The third inspection was conducted by Compliance Officer Black, during theperiod April 9 through April 12, 1984, and resulted in the issuance of citations chargingrespondent with willful, repeated, serious and other violations of the Act and proposingpenalties of $23,200.\u00a0 These citations were contested by respondent and form thebasis for the findings to follow.5.\u00a0 During the course of the inspection, Compliance Officer Black observed oneof respondent’s employees wearing a leather field-manufactured safety belt which bore noANSI approval tag.\u00a0 This belt was of unsafe design and had been subjected to\”in-service loadings\” while used on other jobs.\u00a0 Respondent did not have aneffective program to assure that safety belts used by employees were adequate or thatbelts subjected to \”in-service loading\” were removed from service.6.\u00a0 Temporary ladders in use on the sixth, seventh and eighth floors had siderails which extended less than 36 inches above the openings.\u00a0 The openings around theladderways were unprotected by guardrails or toeboards.7.\u00a0 A wire rope guardrail in use on the sixth floor of the project was not drawntaut and deflected approximately 14 inches when pressure was applied thereto by ComplianceOfficer Black.\u00a0 However, this condition was located in an area of limited employeeaccess.8.\u00a0 On the seventh and ninth floors of the structure, small openings existed inthe floor or deck which openings ran parallel to beams.\u00a0 These were \”accessopenings\” which afforded employees space to bolt and weld the beams, before thedecking was completed.9.\u00a0 On the fifth, sixth and seventh floors, open spaces existed between thefloor edge and periphery guarding.\u00a0 The flooring had initially been completed to theperiphery at which time the wire rope guard was installed.\u00a0 Sections of this floorhad been removed to permit bolting and welding operations on the beams and this flooringwas replaced upon completion of the operations.10.\u00a0 Respondent had available and furnished safety belts and lanyards toemployees. \u00a0 As a usual practice, steelworkers used the belts and lanyards and tiedoff at the work site but did not tie off when travelling the steel from one work site toanother. \u00a0 Likewise, steelworkers did not tie off when crossing over guardrails sincethis practice created a tripping hazard.\u00a0 The foregoing is in accord with industrypractice and custom and is conceded by the Secretary.11.\u00a0 During the course of the inspection, Compliance Officer Black observed oneemployee bolting up steel on the ninth floor who was not adequately tied off to preventfalls.12.\u00a0 The Secretary did not establish that the use of safety nets was possibleduring the period bridges were being erected on the eighth and ninth floors of thestructure.13.\u00a0 It was not possible to install tightly planked floors on the southwest andnorthwest exterior corners of the structure since there was nothing to support such floorsin these areas.14.\u00a0 Respondent failed to guard or cover large floor openings to be used forelevator shafts, stairways and ductwork on the sixth, seventh, eighth and ninth floors.15.\u00a0 A Wassel air receiver tank located on the sixth floor at column J was notprovided with a gauge or safety relief valve.16.\u00a0 Vertically protruding reinforcing steel bars located on the north and southsides of the tower building were not protected to prevent the hazard of impalement.CONCLUSIONS OF LAW1.\u00a0 Respondent is an employer engaged in anindustry affecting commerce and the Review Commission has jurisdiction of the parties andsubject matter in this case.2.\u00a0 The respondent has seriously violated thefollowing 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.\u00a0 The respondent has not violated thefollowing 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.\u00a0 The alleged serious violation of 29 C.F.R.? 1926.500(f)(vi)(b) is modified to reduce the characterization from serious to deminimis. 5.\u00a0 The evidence does not reflect thatrespondent willfully violated 29 C.F.R. ? 1926.28(a), 29 C.F.R. ? 1926.750(b)(1)(ii) and29 C.F.R. ? 1926.750(b)(2)(i).\u00a0 However, it is concluded that respondent seriouslyviolated 29 C.F.R. ? 1926.28(a) on one occasion.6.\u00a0 Respondent has repeatedly violated 29 C.F.R.? 1926.752(j) and 29 C.F.R. ? 1926.750(b)(2)(i).7.\u00a0 Respondent has committed other than seriousviolations of 29 C.F.R. ? 1910.169(b)(3)(i) and 29 C.F.R. ? 1926.700(b)(2).ORDERIt is hereby ORDERED:1.\u00a0 Serious Citation No. 1, Items 1a, 1b and 1c,are affirmed.2.\u00a0 Serious Citation No. 1, Items 1d and 1e, are vacated.3.\u00a0 Serious Citation No. 1, Item 2, is affirmed.4.\u00a0 Serious Citation No. 1, Item 3, is reduced from serious and affirmed as a deminimis violation.5.\u00a0 Serious Citation No. 1, Items 4 and 5, are vacated.6.\u00a0 Willful Citation No. 2 is vacated except with respect to Item 1a, Subpart c,which is affirmed as a serious violation.7.\u00a0 Repeat Citation No. 3 is affirmed in its entirety.8.\u00a0 Other than Serious Citation No. 4 is affirmed in its entirety It 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 belt construction (Ex.C-6).[[2\/]] Sections 1910.132(b) and (c) of 29 C.F.R. state:(b) Employee-owned equipment.\u00a0 Where employees provide their own protectiveequipment, the employer shall be responsible to assure its adequacy, including propermaintenance, and sanitation of such equipment.(c) Design.\u00a0 All personal protective equipment shall be of safe design andconstruction for the work to be performed.[[3\/]] Section 1926.104(a) of 29 C.F.R. provides:(a) Lifelines, safety belts, and lanyards shall beused only for employee safeguarding.\u00a0 Any lifeline, safety belt, or lanyard actuallysubjected to in-service loading, as distinguished from static load testing, shall beimmediately removed from service and shall not be used again for employee safeguarding.[[4\/]] Sections 1926.104(b) and (d) of 29 C.F.R. provide:(b) Lifelines shall be secured above the point ofoperation to an anchorage or structural member capable of supporting a minimum dead weightof 5,400 pounds.(d) Safety belt lanyard shall be a minimum of 1\/2-inch nylon, or equivalent, with amaximum length to provide for a fall of no greater than 6 feet.\u00a0 The rope shall havea nominal breaking strength of 5,400 pounds.[[5\/]] Section 1926.450(a)(9) of 29 C.F.R. provides:(9) The side rails shall extend not less than 36inches above the landing.\u00a0 When this is not practical, grab rails, which provide asecure grip for an employee moving to or from the point of access, shall be installed.[[6\/]] Section 1926.500(b)(2) of 29 C.F.R. states:(2) Ladderway floor openings or platforms shall beguarded by standard railings with standard toe boards on all exposed sides, except atentrance to opening with the passage through the railing either provided with a swinginggate or so offset that a person cannot walk directly into the opening.[[7\/]] Section 1926.750(b)(1)(i) of 29 C.F.R. provides as follows:(b) Temporary flooring–skeleton steelconstruction in tiered buildings.\u00a0 (1)(i) The derrick or erection floor shall besolidly planked or decked over its entire surface except for access openings. \u00a0Planking or decking of equivalent strength, shall be of proper thickness to carry theworking load.\u00a0 Planking shall be not less than 2 inches thick full size undressed,and shall be laid tight and secured to prevent movement.[[8\/]] Section 1926.750(b)(1)(iii) of 29 C.F.R.states as follows: (iii) Floor periphery–safety railing.\u00a0 A safety railing of 1\/2-inch wire rope orequal shall be installed, approximately 42 inches high, around the periphery of alltemporary-planked or temporary metal-decked floors of tier buildings and othermultifloored structures during structural steel assembly.[[9\/]] Section 1926.28(a) of 29 C.F.R. reads as follows:(a) The employer is responsible for requiring thewearing of appropriate personal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the need for using suchequipment 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 totemporary floors, and where scaffolds are not used, safety nets shall be installed andmaintained whenever the potential fall distance exceeds two stories or 25 feet.\u00a0 Thenets shall be hung with sufficient clearance to prevent contacts with the surface ofstructures below.[[11\/]] Compliance Officer Bailey was at the siteduring the erection period 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, atightly planked and substantial floor shall be maintained within two stories or 30 feet,whichever is less, below and directly under that portion of each tier of beams on whichany work is being performed, except when gathering and stacking temporary floor planks ona lower floor, in preparation for transferring such planks for use on an upperfloor.\u00a0 Where such a floor is not practicable, paragraph (b)(1)(ii) of this sectionapplies.[[13\/]] Respondent cites Adams Steel Erection, Inc.,supra, in support of the proposition that subpart R of the regulation relates onlyto interior falls.\u00a0 This case was recently overturned by the third circuit.\u00a0 Donovanv. 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 orpermanent, shall be completely planked over or guarded in accordance with Subpart M ofthis part.[[15\/]] Section 1910.169(b)(3)(i) of 29 C.F.R. reads as follows:(3) Gages and valves.\u00a0 (1) Every airreceiver shall be equipped with an indicating pressure gage (so located as to be readilyvisible) and with one or more spring-loaded safety valves.\u00a0 The total relievingcapacity of such safety valves shall be such as to prevent pressure in the receiver fromexceeding the maximum allowable working pressure of the 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 abovevertically protruding reinforced steel unless it has been protected to eliminate thehazard of impalement.”