Hoffman Construction Co., a subcontractor on the Trojan nuclear power plant at Rainier, Oregon, petitions for the review of an order of the Occupational Safety and Health Review Commission affirming a citation and assessing a penalty for a "serious violation" of the safety standards set forth in the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.

The facts are as follows: While en route to the worksite of another subcontractor, an O.S.H.A. compliance officer noticed ten of Hoffman's men working on an intake structure. One of these men had climbed onto a horizontal beam (called a "whaler"), approximately 40 inches above a scaffold which itself was some 40 feet from the ground. Two other workers were standing on the frame of the structure, and another was kneeling on a 2 X 10 plank. The remaining workmen occupied various places along the structure. All were at least 40 feet above the ground. All wore safety belts to which lanyards were connected, but none of these lanyards was attached ("tied-off") to the structure. This omission was the cause of the inspector's concern, and of the citation.

Pursuant to 29 U.S.C. § 658(a) and § 666(j),1 the Secretary issued a citation to Hoffman for a "serious violation" of 29 C.F.R. § 1926.28(a) (1972), and levied an $850 fine. The duties imposed upon an employer under the Act are derived from 29 U.S.C. § 654:

"(a) Each employer

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this chapter.

"(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions * * *."

Hoffman's first contention is that this inspection was illegal under § 8(a) and 8(e) of the Occupational Safety and Health Act, 29 U.S.C. § 657(a) and (e),2 because the inspector did not present his credentials to Hoffman's agent in charge before he observed the alleged safety violations. Therefore, Hoffman argues, the evidence discovered in the course of that inspection should have been barred.

This issue is controlled by Hartwell Excavation Co. v. Dunlop, Secretary of Labor, 537 F.2d 1071 (9th Cir. 1976). In Hartwell, we held that nonprejudicial failures by inspectors to comply with § 8(a) and § 8(e) of the Act do not automatically give rise to an exclusionary rule barring the government's evidence of hazardous violations witnessed by the inspector.

Hoffman has given us no cogent reason for holding otherwise in the case at bar. Although Congress clearly intended to have the safety officers present their credentials to employers before beginning their inspection, Congress did not express an intent to immunize violations discovered before the presentation could be accomplished. We adhere to the reasoning set forth in the Hartwell decision and hold that this evidence was properly admitted.

The appellant's next point is more troublesome. Hoffman argues that the section of the regulation which it was accused of violating is void because it is so vague that no employer can reasonably be advised of the kind of conduct that will or will not result in liability.

The specific regulation Hoffman is accused of violating, and the focus of the challenge for vagueness, reads as follows:

"The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees."

29 C.F.R. § 1926.28(a) (1972) (emphasis supplied).

Three separate opinions by the Commission grapple with the correct interpretation of this regulation as it might apply to the use of safety lanyards. The bottom line seems to be that the need to tie off safety lanyards arises when the need arises. No criteria are offered to evaluate this need. Hoffman contends that this kind of regulation, whatever it may be worth for other safety purposes, is not sufficiently definite and certain to create punitive liability as represented by the fine in this case. We agree.

Liability under 29 C.F.R. § 1926 as then written required proof of three elements: (1) that the employer did not require the wearing of protective equipment; (2) that there was exposure to hazardous conditions; and (3) that Part 1926 of the regulations indicated a need for protective equipment.

The record supports the Commission's finding against Hoffman on the first two elements, but the lead opinion's decision that the tying off of the lanyards was affirmatively required by language elsewhere in Part 1926 sends the reader on a fruitless search.3

As an abstract proposition, workmen situated 40 to 50 feet above the ground are probably "exposed to a hazardous condition" absent other safety devices such as guard rails or scaffolding. But nothing in the many subsections of Part 1926 adds to the reader's general intuition that workmen exposed to a height hazard need some protection.4 The Commission's interpretation of the regulations instructs an employer that a workman should be required to tie off his lanyard when the conditions indicate the need to do so. We agree with the dissenting opinion of Commissioner Moran that the regulation as it then read5 created no specific standard, a violation of which would give rise to liability. Accordingly, it is not necessary to reach the other points raised by Hoffman.

The Commission's order imposing the fine is reversed.