Spancrete Northeast, Inc.

Plain-English summary

Spancrete Northeast installed precast concrete planks for a 10-story hotel addition in Uniondale, New York. OSHA cited the company because three employees worked near the seventh-floor perimeter without safety nets or other fall protection while directing a crane and positioning 5,400-pound planks. The ALJ vacated the citation after finding that the much longer time needed to install nets would create a greater fall hazard. The Commission reversed, explaining that net installation could occur behind perimeter guardrails or with tied-off safety belts, while the erection crew's work at the edge was completely unprotected. It found the opinions offered by Spancrete's witnesses insufficient to prove that compliance would be more hazardous, especially because they had not used or observed the proposed perimeter-net systems. The Commission affirmed the citation under 29 C.F.R. § 1926.105(a) and assessed the proposed $700 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a).
• Outcome: Affirmed. The Commission reinstated the safety-net citation and assessed a $700 penalty.
• Key point: A greater-hazard defense requires evidence that compliance itself creates the greater danger; longer work near an edge is not enough when that work can be protected.

Full text (OSHRC public release)

/C?GiSA UNITEDSTATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMhdiSSION
One Lafayette Cents
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

SECRETARY OF LABOR,

              Complainant,
                                                  l
                                                  .




       v.                                         :    OSHR C   Docket No. 904726
                                                  0
                                                  .
SPANCRETE NORTHEAST, INC.,                        00
                                                  l
                                                  0




              Respondent.



                                        DECISION

BEFORE: FOULKE, Chairman, and MONTOYA, Commissioner.
BY THE COMMISSION:
       The Occupational Safety and Health Administration (“OSHA”) inspected the
construction site of a lo-story addition to the Marriott Hotel in Uniondale, New York. A
subcontractor, Spancrete Northeast, Inc. (“Spancrete”), was respon&le for delivery and
erection of the precast concrete planks used to build the addition. On May 31,1990, OSHA
issued a citation alleging a violation of 29 C.F.R. 5 1926.105(a) for Spancrete’s failure to
provide safety nets to protect employees working at the perimeter of the seventh floor. One
of the exposed employees directed the crane while two others positioned concrete planks
weighing 5400 pounds each. Spancrete contested the citation and $700 proposed penalty,
claiming that installing safety nets under these circumstances would pose a greater hazard
than would allowing the employees to work at the perimeter without fall protection.

2
Judge’s Decision
After Ending that the Secretary had proved a prima facie violation of 29 C.F.R.
3 1926.105(a), the judge considered Spancrete’s aflirmative defense, that installing safety
nets -- the compliance required by the standard -- would subject employees to a greater
h-d than would performing erection work at the edge without any fall protection. He
found that Spancrete established the greater hazard defense. Specifically, he reasoned that
“[allthough the installation of . . the proposed safety net systems would be accomplished
l

behind perimeter guarding on the completed floors, the guarding consisted of only wire rope
equivalents to a top rail and a [midrail] and wooden guard rails consisting of a top rail and
a [midrail],” and that “there was no guarding at floor level where holes were drilled, bolts
inserted, anchor plates installed, anchor plates and bolts removed, and holes filled and
patched. Also, workers would have to lower poles, snap on nets and maneuver around the
rails with drills, torches and saws.” The judge found that the 1.5 crew-hours per floor that
the unprotected erection crew spent at the perimeter edge directing the crane and
positioning the concrete planks was “minimal,” whereas the 84 to 112 crew-hours a crew
would have to spend near the edge installing nets would be substantially longer2 From this

1 The cited standard provides in pertinent part:

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

It was undisputed that the fall distance was greater than 25 feet, that no fall protection devices were in use,
and that the enumerated devices were impractical.

*In addition to the grater hazard affirmative defense, Spancrete also raised the affirmative defense of
infeasibility of compliance in its pleadings. The judge found that the evidence did not support a claim of
economic or technological infeasibility. Spancrete did not file a cross-petition for revi- of that determination;
nor was the issue directed for review, and for this reason, the Commission withholds any ruling on the issue.
The judge found that “[w]hile Respondent did introduce evidence that compliance with the standard would
increase its overall costs on this project,”further evidence--total costs, profits, the inability of the employer
to pass on the added expenses--would be required before he could properly assess Spancrete’s claim that
installing nets was infeasible. In considering a similar argument in Dun-Par Engd Form Co., 12 BNA OSHC
1%2,1%6,1986437 CCH OSHD ll27,651, p. 36,033-2 (No. 82~928,1986), the Commission looked to whether
the employer had “demonstrated that the costs were unreasonable in light of the protection afforded and bd]
shown what effect, if any, th[o]se added costs would have on the contract or business as a whole.” &e also
(continued...)
 3
he concluded that installing a safety net system would have substantially increased the hmrd
of a fa from the perimeter edge. Finding that Spancrete had proven its affirmative defense,
he vacated the section 1926.105(a) citation.
The Evidence
Testifying at the hearing were four key witnesses: two Spancrete employees, a union
official, and an OSHA safety specialist. Spancrete relies on the testimony of three witnesses
to support its claim that requiring ,employees to install nets would pose a greater h-d to
them than would permitting them to work unprotected. Ivan Millett had been an Erection
Field Manager with Spancrete for the last 20 of his 28 years with Spancrete. Sam Fresina
was not employed by Spancrete, but for 12 years had been the business manager of the
union with which Spancrete had a collective bargaining agreement. He had worked on
construction sites and had accrued 6 years’ experience in safety training. Morgan Wildey
had been a foreman for the last 15 years of his 24 years as a laborer with Spancrete. None
of Spancrete’s witnesses had used perimeter safety nets themselves nor had they seen them
used by others in their industry. Based on their understanding of the systems proposed in
the manufacturer’s brochure and other diagrams, however, it was their opinion that installing
such nets would present a greater hazard than working without them.
Millett had read the literature the Secretary submitted and was under the impression
that employees would be required to work “at the very edge” of the open-sided floor,
“overhanging” the perimeter edge, to install the net system. When asked how, sing that
employees would be working behind a midrail and top rail, they could be exposed to any
kind of a fall hazard, Millett responded: “If the perimeter protection was totally to the
outside, except to fall between the protections because they are working on the extent of the

*(...continued)
State Sheet Metal Co., 16 BNA OSHC 1155, 1161,1993 CCH OSHD ll30,042, p. 41,227 (No. 90-1620, 1993)
(consolidated cases) (evidence of increased costs alone is insufficient to establish “severe adverse economic
impact”); Petersort&OS. SteeZErec. Co., 16 BNA OSHC ll%, 1203,1993 CCH OSHD ll30,052, p. 41,303 (No.
90-2304, 1993), appeal filed, No. 93-4913 (5th Cir. June 14, 1993) (Commission must look at the effect that
compliance would have on the company’s “financial position as a whole” to determine whether company would
be “adversely afkctW’). Commissioner Montoya notes that these recent,citedCOmmission cases all involved
standards that were not promulgated by notice-and-comment rulemaking pursuant to section 6(b) of the Act
and were therefore adopted by OSHA without the opportunity for interestedparties to challenge the feasibility
of the standards.
 4
buildina, it would be a safer condition.” When Millett again asserted on cross-examination
that &e mchor plates would have to be installed “on the very, very perimeter of the plank”
and the &metary’s attorney suggested that it was “a couple of feet in,” Millett replied, “I
was just going with the documentation that they sent us.”
Fresina, the union official, testified that based on his review of the Secretary’s
materials, he did not “see how you can install safety nets without exposing the . . employees
l

0 0 0 to a greater risk” and that Spancrete’s current practice generated the “least exposure.”
Fresina focused on the hazard to which employees working on ladders3 would be exposed,
since they would not be protected by 42.inch-high perimeter guardrails. Fresina was
concerned that if the ladder were to tip, “the guys on the ladder above the guide wire, the
safe[tlywire . l . [,] would fall off the building.” On cross examination, he admitted that the
employee on the ladder could wear a safety belt and tie off to a secure structure, although
he still had resentations about the potential tripping hazard.
Wildey, the Spancrete foreman directing the crane on the day of the bpection,
testified that he believed he and his crew were never in any danger while erecting the
concrete plank. It was his opinion that installing nets would expose employees to a greater
hazard because they would “spend more time towards the edge.” He mentioned no more
specific hazard.
Tom Marrinan, an OSHA safety specialist for 19 years, had also never installed
exterior, Le., perimeter, safety nets, nor had he seen them used in precast concrete
construction sites. Contrary to Spancrete’s witnesses, however, he testified that “there would
be no exposure to a fall hazard under [a] net system as the installers would be working
behind the perimeter guardrail. . . l At no time do they have to lean over the periphery of
the floor. That’s one of the big selling points with all the manufacturers . . . because they
were aware of the employees’ exposure.”

3According to Millett, ladders would be required to anchor the plates in the floor because one employee would
drill the holes and insert the bolts completely through the precast concretefloor while another employee,
standing on a ladder on the floor below, would put nuts on the ends of the bolts as they emerged from the
ceiling. Similarly, ladders would be required to patch the bolt-holes oncethe nets were removed.
 5
&&&an testified that, except for the possibility of needing to remove a midrail
tempo-, he saw nothing to prevent the installation of a net system while wooden
guardra,& were in place. Marrinan made clear that “a system like this would have to be
planned prior to the commencement of the work” SO it is not certain what kind of perimeter
guarding an employer could install, and would want to install, if it knew in advance that nets
were to be used on a project. Marrinan also testified that employees would not have to drill
all the way through the concrete planks to install the anchor plates. According to the design
engineer and the net company representative he consulted, four 4-inch expansion bolts
would safely secure the plates in &inch hollow core precast concrete planks such as those
Spancrete used in this case.
Discussion
To establish the greater hazard defense, an employer must prove that (1) the hazards
created by complying with the standard are greater than those of nonmmpliana, (2) other
methods of protecting its employees from the hazards are not available, and (3) a variance
is not available or that application for a variance is inappropriate. Waker Towing Cop., 14
BNA OSHC 2072, 2078, 1991 CCH OSHD 129,239, p. 39,161 (No. 87-1359, 1991).
Since nets are installed one or two floors below the levels at which erection is taking
place, the time Spancrete claims its employees would be exposed to a greater hazard is spent
installing nets near the edge of a finished floor. This takes place either behind perimeter
guarding, as the judge found, or, presumably, protected by means of a tied-off safety belt. .
The time employees spend at the edge directing a crane or positioning concrete planks at
the erection level, on the other hand, is totally unprotected. Although the judge found that
the installation of the net system would be performed behind perimeter guarding, he seemed
to doubt that this eliminated the fall hazard associated with installing nets. Rather, he found
it determinative that there would be no guarding “at floor level.” We disagree. Marrinan,
the OSHA safety specialist called as a rebuttal witness to explain the mechanics of the net
systems OSHA was proposing, testified that the work on the 18 x l&inch anchor plate would
be set back 6 to 12 inches away from the edge. At least one witness testified that employees
are trained never to put their back to the perimeter edge. None of the witnesses testified
that the absence of floor-level guarding figured into his opinion of the relative merits of
 6
ins-g a net wtem. Spaete did not argue that this factor contributed to its greater
hmd defense. bbrewer, as the Secretary points out,such “floor-level” guarding, or the
we of toeboards, is usually intended to protect employees below from falling tools or debris,
not to protect an employee from falling under the midrail. See, e.g., Wetem Watepmo@g
co., 7 BNA OSHC 162!5,1979CCH OSHD q 23,785 (No. 1087,1979); Somogyi Constr. Co.,
5 BNA OSHC 2065, 1977 CCH OSHD 122,319 (No. 763020, 1977). The midrail of a
standard wooden guardrail would provide fall protection at a height of 18 inches above the
floor, the lower strand of a double wire-rope guardrail at a height of 21 inches. Whatever
the likelihood of a fall through such an opening may be, we are not persuaded by this record
to question the effectiveness of the guardrail standards.
To the extent that the judge believed that having employees “maneuver around the
rails” posed a safety hazard, the only evidence on point was Marrinan’s contrary testimony:
“At no time do they have to lean over the periphery of the floor. That’s one of the big
selling points with all the manufacturers . . . because they were aware of the emphyecs’
exposure.” Although the judge concluded that “the credible evidence” supported
Spancrete’s greater hazard defense, he made no explicit credibility findings and failed to
explain why he discounted Marrinan’s testimony that the installation of nets would not
expose employees to a fall hazard.
The testimony of Spancrete’s witnesses also fails to establish that installing the nets
posed a greater hazard. Although Millett was concerned that employees would be exposed
to a fall at the ‘%ery edge,” he conceded that “it would be a safer condition” if perimeter
protection were “tot@ to the outside.” Fresina’s concern with posslible falls from a ladder
over the perimeter guarding was addressed by Marrinan’s testimony that employees would
not have to drill all the way through the concrete plank to the ceiling of the level below to
install the anchor plates. This suggests that there would be no need for employees to climb
up ladders to hold nuts or patch bolt-holes in the ceiling. The strongest evidence that, as
a general proposition, the more time employees spend near the edge, the greater the hazard
they are exposed to, is Wildey’s testimony that “more time towards the edge” would create
a greater hazard.
 7

     Nevertheless, we find that neither the concbory opinions of Spancrete’s employees

and union representative nor the judge’s unfounded theory can serve as the “critical factual
pre&&’ underlying a greater hazard defense. See United States Steel COP v. OSHRC, 537
F.2d 780,783 (3d Cir. 1976). We therefore find that the preponderance of the evidence on
this record does not support Spancrete’s claim that requiring its employees to install nets
would pose a greater hazard to them than would permitting them to work unprotected. In
light of this determination, we do not reach the other two elements of the greater hazard
defense.
The proposed penalty for this violation was $700. The compliance officer, who
considered the violation a “high-gravity” violation, testified that he made no adjustment for
size of the company, good faith or history. Spancrete does not argue that this penalty is
unreasonable.
Order
Accordingly, we find that Spancrete did not establish the affirmative defense of
greater hazard and that the judge erred in vacating the citation on that basis. We thus
affirm the citation as issued and the $700 penalty as proposed.

                                                     Edwin G. Foulke, Jr.
                                                     Chairman



                                                     Velma Montoya
                                                     Commissioner           .’/   -

Dated: February 16, 1994
 UNmD STAfES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centm
1120 20th Street, N.W. - 8th FIoor
Washington, DC 2oo38-3419

                                       ..

SECRETARY OF LABOR, ..
..
Complainant,

    v.                                         Docket No. 904726
                                       .
                                       .

SPANCRETE NORTHWEST, ..
INC., ..
..

           Respondent.




                          NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
February 16, 1994. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WlTB TEIE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 5 660.

                                              FOR THE COMMISSION

Februarv 16, 1994
Date
Docket No. 90-1726

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mck, I%+
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014

Harry R. Hayes, III, Esquire
Deily, Testa & Dautel
State Street Centre, Tenth Floor
80 State Street
Albany, New York 12207-2009

Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501
 UNITED
SW-Es
OFAMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTOND.C. 200064246

                                  .                                                FAX:
                                  .                                                c06&-4008

Secretary of Labor,
Complainant, I
.
v. .. Docket No. -1726
.
Spancrete Northeast, Inc.,
Respondent.
.

                               NOTICE OF DOCKETING

The Administrative Law Judge’s Report in the above referenced case was docketed with the
Commission on October 7, 1991. The decision of the Judge will become a fin4 order of lhe
Commissionon November 6,lQQl unless a Commissionmember directs review tithe deWon
on or before that date. ANY PAR’lV DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DlSCREnONARY REVIEW. Any such petltkm
should be received by the Executive Secretq on oc w October 28,1991 in order to permit
sufficienttime for its review. See Commission Rule 91, 29 C.F.R. § 2200.91.

All further pleadings or communications regarding this case shall be addressed to:

                          Executive Secretary
                          Occupational Safety and Health
                           Review Commission
                          1825 K St., N.W., Room 401
                          Washington, 0, C. 2OOOG1246

Petitioning parties shall also mail a copy to:

             .            Daniel J. Mick, Esq.
                          Counsel for Regional Trial Litigation
                          Office of the Solicitor, U.S. DOL
                          Room S4004
                          200 Constitution Avenue, N.W.
                          Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial
Litigation will represent the Department of Labor. Any party having questions about review rights
may contact the Commission’s Executive Secretary or call (292) 634-7950.

October 7.1991
Date
Docket No. 904726

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mid<, m.
Counsel fW Regional Tfial Litigation
omce of the solidtof, U.S. DOL
Fboms4oo4
200 ConstitutionAve., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Vafick St., Room 707
New York, NY 10014

Harry R. Hayes, Esquire
Hayes & Hayes
350 Northern Boulevard
Albany, New York 122044028

Richard Gordon
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 021094501
 OCCUPATIONAL 8lWgTY AND HEALTH RBVIEOI COMMISSION

SECRBTARY OF LABOR,
1
Complainant, 1
1
V. 1 OSERC Docket No. go-1726
1
SPANCRETE NORTHEAST, INC.8 1
1
Respondent. 1

APPEARANCES:

   Alan L. Kammerman, Esquire, Office of the Solicitor,
   U.S. Department of Labor, New York, New York, on behalf of
   Complainant.
   Harry R. Hayes, III, Esquire, Law Offices of Hayes 6iHayes,
   Albany, New York, on behalf of Respondent.

                                  ISION AND ORDER

GORDON, Judge:
This proce'edingarises under 5 10(c) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. § 651, et seq., (rrActV8)
to review citations issued by the Secretary pursuant to 5 9(a)
and a proposed assessment of penalty thereon issued pursuant to
§ 10(a) of the Act.
On May 31, 1990, the Secretary issued two citations to
Respondent, following an inspection of Respondent's work site at
Marriott Hotel in Uniondale, New York during the period May 2 to
4, 1990. The citations contained three items, only one of which
 2
Respondent ~COntests. The contested item is an alleged violation
of the standard at 29 C.F.R. 5 1926.105(a) for failure to install
safety-nets around the perimeter of a ten floor addition to the
Marriott Hotel as a means of fall protection, for which the
Secretary proposed a penalty of $700.
By filing a timely notice of contest, Respondent brought
this proceeding before the Occupational Safety and Health Review
Commission (Commission). A hearing was held in New York, New
York on February 27, 1991. The parties have submitted their
briefs and this matter is now ready for decision.

 Serious citation 1, item 1 states:

29 CFR 1926.105(a): Safety nets were not provided when workplaces
were 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 was impractical:

 (a)   Northwest side of building, 7th floor:
 Employees installing concrete planks were exposed to an
 approximate 70 foot fall hazard; on or about 5/4/90.

The cited standard in effect at the time of the alleged violation
states:
S 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.

 OSHA Compliance Officer John Caldarelli conducted a

scheduled inspection of the subject worksite, a 10 story
extension to a Marriott Hotel in Uniondale, New York, during the
period May 2 to 4, 1990. (Tr. 8, 10, 11). Spancrete was a
 3
subcontractor on the project to Sea Crest Construction to supply
and erect the floor and roof system with precast concrete planks,
which were manufactured at its South Bethlehem, New York plant,
cut to required lengths and delivered to the job site on flatbed
trailers. (Tr. 65-66). Each precast concrete plank was 27 feet
low, 3 feet 4 inches wide, 8 inches thick and weighed 5,400
pounds. (Tr. 71).
At the time of the inspection, Respondent's crew was
installing plank on the seventh floor of the addition. (Tr. 13,

14) 0 The plank was set on poured in-place cement bearing walls
which were under the scope of another subcontractor, Hempstead
Concrete. (Tr. 18). Respondent's erection crew consisted of
three individuals, Mr. Morgan Wildey, Mr. Vespucci and Mr. Barber,
all of whom were classified as foreman and had been Spancrete
employees for, respectively, 24 years (Wildey), 12 to 14 years
(Vespucci), and 6 to 8 years (Barber). (Tr. 67, 68, 131).
The erection process involved hoisting the plank by crane
and then setting the plank on poured concrete walls. (Tr. 36).
The crane used by Respondent to hoist the planks to the building
was furnished by Sea Crest Construction and was already set up
when Respondent started to work. (Tr. 143). Mr. Wildey would
signal the crane operator from the floor below, and planks would
be lifted starting in the center and working out towards the
perimeter. (Tr. 139). Mr. Wildey would go up to the floor being
set once they reached the second plank from the edge. (Tr. 40).
It took Respondent's three man crew of Messrs. Wildey, Vespucci
 4
and Barber fifteen hours to set the plank on one floor level.

(Tr. 77, 138). After the planking was completed, Sea Crest, the
general contractor, would put up perimeter guarding on the
completed floors consisting of wire rope equivalent to a top rail
and a mid rail. (tr. 54).
CO Caldarelli recommended a citation for an alleged
violation of 29 C.F.R. 5 1926.105(a) involving plank installation
and direction on the 7th floor without any fall protection for
the three man crew. He classified the alleged violation as
serious due to the injury and death potential in a 70 foot fall,
and proposed a penalty of $700.00. (Tr. 25).
The Secretary established a prima facie violation of 29 C.F.R
5 1926.105(a). The Spancrete crew working on the 7th floor of the
Marriott Hotel addition was clearly working at a height of more
than 25 feet above the ground. While there is some dispute
as to the exact fall distance potential to which the Spancrete
crew was exposed, it was at least 60 feet, well in excess of the
25 feet specified in the standard. Respondent has asserted that
its crew was experienced and that there had never been an injury
or death of an employee from a fall on a Spancrete project.
While the Secretary has labeled this argument as V@ridiculous*q,
the Commission while acknowledging that the occurrence of an injury
is not a necessary predicate for establishing a violation, has held
that the absence of any injuries may buttress a contention that
employees were not exposed to potential injury.
Rockwell International Corp., 80 OSAHRC 118/A2, 9 BNA OSHC 1092,
 5

1980 CCH OSHD q 24,979 (No. 12470, 1980). However, as the
Secretary correctly points out, the Commission has long held that
access to the danger zone is sufficient to establish exposure to
a violative condition. Gilles and Cottine_Lnc., 3 OSHC 2002
(R.C. 1976). A zone within 2-3 feet of the perimeter is a danger
zone when no fall protection is present. The credible evidence
places three employees in the fall hazard danger zone for at least
30 minutes each while within 2-3 feet of the 7th floor perimeter
edge. Accordingly, a violation of 29 C.F.R Q 1926.105(a) has been
established.
Having determined that the Secretary made a prima facie case
of violation, I now turn to whether Respondent established any
affirmative defense. Respondent asserts that it has proved two
affirmative defenses: the infeasibility defense which I will now
address, and the greater hazard defense, which I will discuss later
in this decision.
In order to establish the defense of infeasibility, Respondent
needs to establish that compliance with the standard
is infeasible and that alternative means of protection were
unavailable. m-Par Engineered Form Co., 12 OSHC 1949
(R.C.1986), 843 F.2d 1135, 13 OSHC 1652 (8th Cir. 1988)(reversing
only on Review Commission holding that it is the Secretary's
burden of proposing alternative means of protection), Seibel Modern
Manufacturincr& Weldina Comoration, OSHRC No. 88-821 (R.C. August
9, 1991)(overruling Dun-Par to the extent that it reallocated the
burden of proof regarding the infeasibility of any alternative
 6
measures). The infeasibility defense encompasses both economic and
technological feasibility. Southern Colorado Prestress, 586 F.2d
1342, 1351 (10th Cir. 1978); Faultless Division, 647 F.2d 1177,
1189 (7th Cir. 1982). However, a successful economic infeasibility
argument requires proof that it is extremely costly to comply, in
the sense that the employer's existence as an entity is financially
imperiled, and that the employer cannot pass on the added expense.
tless Division, supra. p. 1190, cited in Walker Towby Corp.,
14 OSHC 2072, 2077 (R.C. 1991).
While Respondent did introduce evidence that compliance with
the standard would increase its overall costs on this project. The

evidence fell far below the quantum of proof required by the
regulations and case law. Spancrete did not introduce evidence of
its profits on this project nor of its total costs. As the
Secretary correctly points out, Spancrete introduced no evidence to
establish that its existence would be threatened by the
installation of safety nets, or that any added costs could not be
passed onto this job or amortized over many jobs. Similarly,
Respondent did not focus much evidence on any technological
infeasibility arguments. The credible evidence demonstrated that
both types of safety net systems proposed be the Secretary's
experts were technologically feasible to use to protect employees
near the perimeters during installation of planks. Accordingly,
Respondents assertion of the infeasibility affirmative defense
must fail.
In order to establish the greater hazard defense, an employer
 7

must prove each of the following three elements, namely that:(l)
the hazards created by complying with the standard are greater than

  . noncompliance: (2) other methods of protecting its

those of
employees from the hazards are not available: and (3) a variance is

not available or that application for a variance is inappropriate.
Walker Towlna
0 Corg,, 14 BNA OSHC 2072, 2078, 1991 CCH OSHD 1
29,239, p. 39,161 (No. 87-1359. 1991).
During precast plank erection at the project, a substantial
majority of the time of erection per floor was spent away from the
perimeter edge. As to that time period, the only fall exposure was
eight feet, ten inches to the floor below the level where the plank
was being erected. The testimony of Mr. Wildey at the hearing,
which I find to be credible, was that it took approximately 15
hours for the three man crew to set plank for one floor level,
which amounted to 45 man-hours. Out of that time, one-half hour
per man', or 1 l/2 man-hours in total, was spent within three feet
of the perimeter edge, which amounts to 3% of the total man-hours
to set plank for the floor. A fair review of the credible evidence .
establishes that the amount of the time spent by Spancrete's crew
at the perimeter edge was minimal, as most of the plank erection
was away from the perimeter.
The Secretary's witness, Mr. Thomas Marrinan, who heard all of

 1
     Spancrete's crew spent two to three minutes at the

perimeter edge to place the last plank in each bay at an exposed
edge. There were 7 bays, running north-south, which translated to
14 perimeter sections where plank had to be set. Two to three
minutes per man at 14 perimeter edges approximates the half-hour
exposure in total testified to by Mr. Wildey.
 8
the testimony at the hearing, opined that safety nets could have
feasibly been installed to protect Spancrete employees on the
seventh floor while working near the perimeter edge. Mr. Marrinan
proposed two safety net systems: a Wanufactured" system and a
*'fabricated'@
system using timbers, nets, reshores and boards.
The "manufactured" system involved the installation of 18 inch
plates on floors 5 and 6 at 30 foot intervals, the plates being
connected to the floor by 4 expansion bolts (3/4 inch by 4 inches),
The plates would be placed 6-12 inches in from the perimeter edge
and the bolts would be torqued or screwed down. The plates on the
6th floor would be directly above the plates on the 5th floor. The
plates on the 6th floor would have a runner wire going through the
eye on the plate and would be anchored through the plate. Tha,
plates on the 5th floor would hold a 15 foot cantilevered arm, a
metal pole, which would be lowered from the 6th floor and placed in
the sleeve recess on the swivel on the plate. Then the pole would
be tied back vertically to the wire rope running through the plates
on the 6th floor. After all the poles were in the vertical '
position, resting in the swivel below and tied back, the nets,
weighing 27 pounds for a 10 by 30 foot panel would be snapped into
the top of the pole with a snaphook with the other end hooked to
the wire on the 6th floor. The net would also be tied in to the
next panel to keep the strength laterally between the nets. The
fully extended net would be 10 feet beyond the perimeter. Mr.
Marrinan stated that it would take 3 men an 8 hour shift to install
100 linear feet of this safety net system. The bolts anchoring the
 9
plates could be cut when the net system is taken out and some grout
could be put over them.
Mr. Marrinan also testified that a "fabricated" system could
be utilized where the bays would be divided into three equal parts,
with a little more than 8 feet intervals. Sixteen feet 4 by 4
boards, called thrust outs, would be projetted from the edges of
the floor. Nets would be fastened onto these boards by an employee
working behind the guardrail system on the floors below the 7th.
Snap hooks would be used to interlock the nets. The thrust outs
would be secured with two upright boards on top of it and in
contact with the ceiling, with these upright or vertical boards
being shimmed, in a method similar to concrete form work. Hr.
Marrinan testified that the construction and implementation of the
fabricated system would require 4 men 8 hours to install so that it
covered 100 linear feet. Moreover, after erecting the fabricated
system, an employer would have to test its capability, which Mr.
Marrinan recommended be done by dropping a 350 pound sandbag into
the net from a height of 25 feet.
It was Mr. Marrinan's testimony that there would be no
exposure to a fall hazard under either net system as the installers
would be working behind the perimeter guardrail system.
Respondent argues that the compliance officer was not
competent to testify about either precast concrete construction and
the use of safety nets, because he had never inspected a
construction project, prior to the Marriott Hotel, where precast
concrete was being installed and had never observed safety nets
 10
being used by a precast concrete erector as a means of a fall

protection. I reject this argument. The record reveals that Mr.
Caldarelli is a well qualified compliance officer. His lack of
experience in precast concrete construction would only go to the
weight I would give to Mr. Caldarelli's testimony. This, in turn,
would be dependent on whether I find that fall hazards are
different in precast concrete construction than in other types of
construction.
Spancrete's three man crew worked within 3 feet of the
perimeter edge a total of 1 l/2 crew hours t3erfloor. The proposed
Vnanufactured" safety net system would require 94 crew bows t>ey
floor (3 men 3 l/2 days - or 28 hours - to cover 360 feet) and, the
"fabricatedVgsystem would require 112 crew hours Der floor (4 men,
3 l/2 days - 28 hours - to cover 360 feet). Although the
installation of both of the proposed safety net systems would be
accomplished behind perimeter guarding on the completed floors, the
guarding consisted of only wire rope equivalents to a top rail and
a mid rail and wooden guard rails consisting of a top rail and a
mid rail. The Spancrete construction operation resulted in
exposure to the perimeter edge a total of 1 l/2 crew hours per
floor as opposed to 84 crew hours per floor at the perimeter edge
for the 'manufacturedg8
system and 112 crew hours per floor at the
perimeter edge for the ggfabricatedgg
system. While the installation
of the ggmanufactured*
and "fabricated'systems was performed behind

2
    Mr. Marrinan testified that portions of the wooden guard

rails would have to be removed to install the l@manufacturedn
system.
 11
perimeter guarding, there was no guarding at floor level where
holes were drilled, bolts inserted, anchor plates installed, anchor
plates and bolts removed, and holes filled and patched. Also,
workers would have to lower poles, snap on nets and maneuver around
the rails with drills, torches and saws. The credible evidence
supports a conclusion that installing either of the safety net
systems proposed by the Secretary would have substantially
increased the hazard of a fall from the perimeter edge by
Respondent's erection crew.
After a careful review of all of the evidence now of record,
the undersigned has concluded, and so finds, that although the
Secretary has established a prima facie violation of 29 C.F.R. f
1926.105(a), Respondent has established the affirmative defense of
greater hazard? Accordingly, the citation for violating the
standard at 29 C.F.R. 5 1926.105(a) must be vacated.

                             NDINOS OF FACT
 Findings of fact relevant and necessary to a determination

of all issues have been made above.Fed. R. Civ. P. 52(a). All
proposed findings of fact inconsistent with this decision are
hereby denied.
CONCLUSIONS OF LAW
1. Respondent, Spancrete Northeast, Inc., is engaged in a

 3 At the hearing and in the pleadings, the Secretary admitted

that none of the alternative measures listed in 29 C.F.R. 5
1926.105(a) weredpractical at the project. Moreover, Respondent
introduced evidence at the hearing, which was not disputed by the
Secretary, that a variance application would have been
inappropriate.
 12
business affecting commerce and has employees within the meaning
of section 3(5) of the Act.

 2. -Respondent, at all times material to this proceeding,

was subject to the requirements of the Act and the standards
promulgated thereunder.The Commission has jurisdiction of the
parties and of the subject matter of this proceeding.
3 . Respondent was not in serious violation of 29 C.F.R 5

1926.105(a),

 1. Serious citation 1, item 1 alleging a violation of 29 C.F.R

5 1926.105(a) is VACATED.

                                  RICEARDbL GORD&
                                    Judge, OSHRC

Dated: October 2, 1991
Boston, Massachusetts