Daniel Marr & Son Company

Plain-English summary

Daniel Marr employees erected steel at the Seabrook Nuclear Power Plant while working up to 115 feet above the ground without safety nets in place. The judge found violations of both the steel-erection net rule and the general construction safety-net rule. Daniel Marr did not seek review of the steel-erection violation. Applying its Adams Steel decision, the Commission held that the steel-erection standard specifically governed the fall hazard and precluded an additional violation under the general rule. It vacated only the 29 C.F.R. § 1926.105(a) portion of the citation. Commissioner Cleary dissented because the specific rule did not address exterior falls and employees remained exposed to a potential 115-foot fall.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.5(c)(1), 29 C.F.R. § 1926.105(a), and 29 C.F.R. § 1926.750(b)(1)(ii)
• Outcome: General safety-net item vacated; unreviewed steel-erection safety-net violation remained in place.
• Key point: Under the Commission's then-current preemption rule, the steel-erection fall-protection standard displaced an additional charge under the general construction safety-net standard.

Full text (OSHRC public release)

Docket No. 82-0612

SECRETARY OF LABOR,

Complainant,

v.

DANIEL MARR & SON COMPANY,

Respondent.

OSHRC Docket No. 82-0612

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651- 678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration.  It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor under the Act and has no regulatory
functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

Daniel Marr & Son Company ("Daniel Marr") is a steel erection
firm that was engaged in the construction of the Turbine #2 Building at the Seabrook
Nuclear Power Plant in Seabrook, New Hampshire.  Following an OSHA inspection of the
Seabrook site, Daniel Marr was cited for a serious violation of two safety standards, 29
C.F.R. � 1926.750(b)(1)(ii) [[1/]] and 29 C.F.R. � 1926.105(a).[[2/]]

The turbine building under construction contained a steel frame 325 feet long
and about 115 feet high and had two floors at heights of 50 and 75 feet.  Daniel Marr
had contracted to build this steel frame.  At the time of the OSHA inspection, Daniel
Marr's employees were observed working at the top of the steel frame, 40 feet above the
floor and 115 feet above the ground.  As a matter of general procedure, Daniel Marr
installed safety nets after the extension columns and cross bracing had been set.  No
nets were in place at the time of the inspection.  The Secretary of Labor issued a
two-part citation on the theory that Daniel Marr failed to provide interior fall
protection required under section 1926.750(b)(1)(ii) and failed to provide exterior fall
protection required under section 1926.105(a).

Daniel Marr does not contest the judge's finding that it violated the safety net
requirement of section 1926.750(b)(1)(ii) and that portion of the judge's decision is not
on review.  Instead Daniel Marr, citing 29 C.F.R. � 1910.5(c)(1),[[3/]] contends
that the steel erection standard at section 1926.750(b)(1)(ii) is specifically applicable
to the cited conditions and precludes application of the general construction standard at
section 1926.105(a).  On this basis, Daniel Marr contests the judge's ruling that it
could be in violation of both section 1926.105(a) and section 1926.750(b)(1)(ii).

We agree that Daniel Marr cannot be found in violation of both standards and
vacate that portion of the citation alleging a violation of section 1926.105(a).  In Adams
Steel Erection , OSHRC Docket No. 77-4238 (July 20, 1984), we held that section
1926.750(b) is specifically applicable to the hazard of falling in the steel erection
industry and that section 1926.105(a) may not be applied to require methods of fall
protection different from that specified in section 1926.750(b).  It follows then
that Daniel Marr cannot be found to have violated both standards.  Accordingly, that
portion of the citation alleging a violation of section 1926.105(a) is vacated.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  JUL 20 1984

CLEARY, Commissioner, dissenting:

For reasons set forth in my dissenting opinion in Adams Steel Erection ,
OSHRC Docket No. 77-4238 (July 20, 1984), I dissent from the conclusion that, in the steel
erection industry, section 1926.105(a) may not be applied to require methods of fall
protection different from that specified in section 1926.750(b).

Again, the potential for a tragic accident is evident from the facts of this
case.  Employees exposed to falls of 115 feet to the ground are to remain unprotected
because there is an industry standard requiring fall protection from falls to the interior
of the building. Application of section 1926.105(a) would require that protection and is
properly applied to fall hazards not covered by fall protection standards specifically
applicable to the steel erection industry.  Moreover, such a result is not only
inconsistent with Commission precedent, but also ignores the Secretary's official policy
of supplementing the fall protection standards of Subpart R with the general fall
protection standards at 29 C.F.R. � 1926.28(a) and � 1926.105(a). [[1]]

The record establishes that Respondent failed to comply with section
1926.105(a).  At the time of the inspection, four employees, called connectors, were
installing cross-bracing and connecting horizontal steel beams to vertical steel members.
  The steel frame was 325 feet long and about 115 feet high.  There were two
floors, one at 50 feet, the other at 75 feet above ground level. Respondent's procedures
did not call for the installation of exterior safety nets.  The connectors worked at
the top of the structure

without any form of fall protection, and thus were exposed to the hazard of falling 115
feet to the exterior ground level. Respondent's failure to provide any of the fall
protection devices listed in the cited standard constituted a failure to comply with
section 1926.105(a).  National Industrial Constructors, Inc ., 81 OSAHRC 46/C2,
9 BNA OSHC 1871, 1981 CCH OSHD � 25,404 (No. 76-891, 1981).  Accordingly, the item
should be affirmed.

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1/]] Section 1926.750(b)(1)(ii) is contained in subpart R of the Safety and Health
Regulations and is specifically applicable to the steel erection industry.

It provides:

On buildings or structures not adaptable to temporary floors, and where
scaffolds are not used, safety nets shall be installed and maintained whenever the
potential fall distance exceeds two stories or 25 feet.  The nets shall be hung with
sufficient clearance to prevent contacts with the surface of structures below.

[[2/]] Section 1926.105(a) is contained in subpart E -- Personal Protective
and Life Saving Equipment, of 29 C.F.R. Part 1926 -- Safety and Health Regulations for
Construction.  It provides:

� 1926.105 Safety nets .

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground
or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms,
temporary floors, safety lines, or safety belts is impractical.

[[3/]] 29 C.F.R. � 1910.5(c)(1) reads, in relevant part, as follows:

If a particular standard is specifically applicable to a condition, practice,
means, method, operation, or process, it shall prevail over any different general standard
which might otherwise be applicable to the same condition, practice, means, method,
operation, or process . . . .

[[1]] Falling Hazards to the Exterior of Buildings .  For all
types of construction, including steel erection, exterior falling hazards shall be cited
under 1926.28(a) when the potential falling distance is 10 through 25 feet and under
1926.105(a) when the potential falling distance is greater than 25 feet.

OSHA Instruction STD 3-3.1 (July 18, 1983), paragraph 6.3.b, reported at CCH
ESHG, 1982-1983 Developments, � 12,855 at p. 17,166.