Stanbest, Inc.
“SECRETARY OF LABOR,Complainant,v.STANBEST, INCORPORATED,Respondent.OSHRC Docket No. 76-4355_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:A decision of Administrative Law Judge Paul L. Brady is before theCommission for review under 29 U.S.C. ? 661(i), section 12(j) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”theAct\”). Judge Brady affirmed several items of a citation alleging afailure by StanBest, Inc. (\”StanBest\”) to comply with variousoccupational safety and health standards in 29 C.F.R. Part 1910. Commissioner Cleary directed review of all the issues raised inStanBest’s petition for review. We vacate the direction for review inpart; with respect to the items remaining on review, we affirm thejudge’s decision in part and reverse in part._StanBest’s Motion to Suppress Evidence_At its Fairburn, Georgia plant, StanBest manufactures fiberglass tub andshower units. On September 21, 1976, two compliance officersrepresenting the Secretary of Labor (\”the Secretary\”) arrived at theplant to conduct an inspection. At the time of their arrival,Stavrolakis, the company’s president, was not present. They were met byStanBest’s plant manager, Dupree. According to compliance officerBlack, he informed Dupree that they were going to conduct an OSHAinspection, that they might take photographs, and that he couldaccompany them. Black testified that Dupree stated \”[t]hat’s fine,\”that for about 30 minutes he obtained information about the chemicals inuse in StanBest’s manufacturing process, and then began the inspection. Compliance officer Cassell testified that Dupree gave permission toinspect the plant. The two compliance officers and Dupree inspected theplant together. Stavrolakis arrived at the plant during the closingconference following the inspection. Black and compliance officerCassell then went back through the plant with Stavrolakis and conducteda second closing conference with him.At the hearing, StanBest, represented by Stavrolakis, moved to vacatethe citation, arguing that the evidence to support it had been obtainedillegally. In support of this motion, it offered an affidavit by Dupreepurportedly demonstrating that the compliance officers enteredStanBest’s plant without Dupree’s consent. The affidavit reads as follows:On the afternoon of Sept. 21, 1976, two men walked into the plant officelocated at 348 Bay St., Fairburn, Georgia and announced that they werefrom OSHA. They said that they were there to inspect the plant. Itold them that the owner, a Mr. James A. Stavrolakis, was out picking upsupplies, and that he should be back shortly. They sat down to wait,and to describe to me the purposes of OSHA. I told them that I knew allabout OSHA, since I had a small fiberglass plant in South Georgia. As aresult of their inspection of my plant, I had to close down theoperation and put eight (8) people on welfare. The visitors gotimpatient and said they were going through the plant. I told them thatI would urgently try to contact J. Stavrolakis. I did locate him bytelephone, and he said he would rush back right away. The visitors wereunwilling to wait and went through the plant even though over theentrance to the plant area is a sign stating \”Authorized PersonnelOnly.\” Messrs. L. Black and P. Cassell made notations and tookunauthorized photographs. Mr. J. Stavrolakis arrived at the plant justas the visitors were about to leave, and he sat down to listen to thealleged citations. He asked them if both were on assignment. Mr. Blacksaid only he was on assignment and that Mr. Cassell was onlyaccompanying him.The judge refused to accept the affidavit on the ground that Dupree wasnot present for cross-examination. At the close of the hearing, thejudge denied the motion to suppress and reiterated his exclusion ofDupree’s affidavit. Judge Brady stated at the hearing that there was\”nothing shown to be irregular [about the] inspection.\”On review, StanBest argues that the evidence obtained as a result of theinspection should be suppressed because the inspection was conductedwithout a warrant and without its consent, and therefore in violation ofthe Fourth Amendment and 29 C.F.R. ? 1903.4, one of the Secretary’srules governing inspections. As evidence of its lack of consent,StanBest points to the affidavit of its plant manager, which it contendswas improperly excluded by the judge. In a supplemental brief filedfollowing the Supreme Court’s decision in Marshall v. Barlow’s, Inc. 436U.S. 307 (1978), StanBest argues that under Linkletter v. Walker, 381U.S. 618 (1965), Barlow’s should be applied here because interveningdecisions apply to cases pending on appeal when those decisions are issued.The Secretary argues that the judge’s conclusion that there was \”nothingshown to be irregular [about the] inspection\” indicates that there wasconsent to the inspection. He maintains that the judge properlyexcluded the affidavit because Dupree was not present forcross-examination, StanBest made no effort to show that Dupree wasunavailable, and StanBest did not request that the record remain openfor his testimony. The Secretary also contends that even if Dupree’saffidavit were admitted, nothing in the affidavit indicates that Dupreedenied the compliance officers permission to enter or conditioned theirentry on Stavrolakis’ presence. Citing to United States v. Peltier, 422U.S. 531 (1975), the Secretary contends that even if the search did lackconsent, Barlow’s should not be applied retroactively because thecompliance officers reasonably believed that a warrant was not required.StanBest claim that the inspection took place without its consent restsentirely on the facts set out in the affidavit. Dupree’s affidavitdescribed the events surrounding the inspection of StanBest’s plant, butin light of the consistent, contrary testimony of the two complianceofficers, it is too unclear and lacking in specifics to provide a basisfor us to conclude that the compliance officers entered StanBest’s plantwithout consent. In fact, the affidavit does not state that thecompliance officers were denied entry by Dupree or that Stavrolakisobjected to the inspection when he arrived at the plant. Thus, even ifwe were to conclude that despite Commission Rule 69, 29 C.F.R. ? 2200.69, [[1\/]] the judge erred in excluding the affidavit–a question we donot reach–the affidavit fails to rebut the testimony of the complianceofficers.[[2\/]] Accordingly, we conclude that the inspection waslawful, [[3\/]] and we turn to the merits of the alleged violations.[[4\/]]_Item 3: 29 C.F.R. ? 1910.106(e)(2)(ii)(b)(2).[[5\/]]_Item 3 alleges that StanBest failed to comply with section1910.106(e)(2)(ii)(b)(2) by storing \”[m]ore than 120 gallons of Class1B, 1C, II, or III flammable or combustible liquids outside of insidestorage room(s) or storage cabinet(s).\” The item alleged that five fulldrums of resin and two of acetone were stored in the shop. According toits scope provision, coverage of section 1910.106(e) is limited to\”industrial plants.\” Section 1910.106(e)(1). The compliance officertestified that because StanBest’s plant was not covered by any of theother subparts of section 1910.106(e), it was an industrial plant. Thejudge affirmed item 3 of the citation but did not specifically find thatStanBest operated an \”industrial plant.\” Although polymerizationoccurred in StanBest’s plant, the judge found that the storage offlammables and the process of polymerization were separate functions,and that StanBest had failed to delineate their relationshipsufficiently to establish an exception under section 1910.106(e)(2).StanBest argues that section 1910.106(e) was not shown to apply to itsplant because the compliance officer’s testimony does not establish thatthe plant was an \”industrial plant.\” It also contends that even if itsoperation was an \”industrial plant\” covered by section 1910.106(e), itwould be excluded from coverage by the exception for polymerization andother chemical processes in section 1910.106(e)(1)(ii).The Secretary maintains that because StanBest is involved in themanufacture of fiberglass tub and shower units, its operation involvesan \”industrial plant\” as does the assembly of automobiles and themanufacture of furniture listed as examples in section 1910.106(e). TheSecretary also contends that StanBest has not made out an exceptionunder section 1910.106(e)(1)(ii). The Secretary points out thatalthough there is an exception in the regulations for those parts ofindustrial plants where polymerization occurs, StanBest’s allegedinfractions of section 1910.106 did not take place in areas of its plantwhere that process took place.We conclude that section 1910.106(e) has been shown to apply here. StanBest’s plant involves the manufacture of tub and shower units. Itis an \”industrial plant\” within the plain meaning of the term. It iscertainly not one of the specialized plants that transfer, disburse andrefine flammable and combustible liquids and are governed by othersubdivisions of section 1910.106.StanBest has also failed to demonstrate that the polymerization thattakes place at its plant excepts it from the coverage of section1910.106(e). According to section 1910.106(e)(1)(ii), if any portion ofa plant involves a chemical reaction such as polymerization, thatportion must meet the requirements of section 1910.106(h), rather thansection 1910.106(e). StanBest claims that polymerization takes place inits plant, but it has not identified the areas of the plant in which thealleged violations of section 1910.106(e) occurred as areas wherepolymerization was conducted. Because the party claiming the benefit ofan exception has the burden of proving that its claim comes within theexception, see United States v. First City National Bank of Houston, 386U.S. 361, 366 (1967); Durant Elevator, A Division of Scoular-BishopGrain Elevator, 80 OSAHRC 103\/D5, 8 BNA OSHC 2187, 2189, 1980 CCH OSHD ?24,873, p. 30,673 (No. 77-1518, 1980), StanBest’s claim of an exceptionmust fail.[[6\/]]We now turn to the question of noncompliance. Black, the complianceofficer, testified that there were five, full 55-gallon drums of resinand two full drums of acetone in an area near the spray booths. Blackidentified the substances in the barrels as resin and acetone on thebasis of discussions he had with Dupree, StanBest’s plant manager. Hestated that Dupree told him that the resin drums were lying on the floorfor lack of better storage space and the acetone drums were presentbecause that was \”where they stored their material.\” Black stated thatall of the barrels had red, Department of Transportation (\”DOT\”)flammability labels on them. [[7\/]] He estimated that the sevenbarrels contained approximately 400 gallons of liquid. Black alsotestified that he observed three of StanBest’s employees near thebarrels and that the plant had no inside storage room. Black statedthat he knew acetone and resin were classified as 1B flammables from hisexperience as a safety director for a chemical company. [[8\/]] Blacktestified that in that capacity he had handled bulk acetone and\”assisted in the handling, shipping, packaging and storage offlammables, caustics, and acids.\”The judge affirmed item 3. He apparently relied on the complianceofficer’s testimony that the drums contained acetone and resin and foundthat the drums contained \”[f]lammable or combustible liquids in excessof 120 gallons.\” He did not specifically find that acetone or resinwere class 1B, 1C, II, or III flammables.StanBest argues that because the identity and character of thesubstances in the drums cannot be determined unless samples are takenand tests made, the evidence introduced by the Secretary is insufficientto establish a violation. It contends that the Secretary failed to showthat resin and acetone were class 1B flammables, and relied instead onwhat it characterizes as the compliance officer’s \”undetermined\”experience for that proof. StanBest also argues that the Secretary’scounsel asserted that the compliance officer was incompetent to testifyto the flashpoint of acetone or resin.Compliance officer Black testified without contradiction that StanBest’sown plant manager indicated to him that the barrels contained acetoneand resin. We therefore do not think it was necessary for thecompliance officers to have taken samples or conducted tests toascertain the contents of the drums. We find that the cited drumscontained acetone and resin.We also find that class 1B substances were present. By reason of hisexperience in handling, packaging, and storing acetone, resin and otherchemicals and his conversations with StanBest’s plant manager, Blacktestified credibly to the classification of acetone and resin.[[9\/]]This testimony was unrebutted. In any event, we take official noticethat the boiling point of acetone is 56.48?C or 134?F, and that theflashpoint of acetone is -18?C or 0?F. See, e.g., N.I. Sax, DangerousProperties of Industrial Materials 334 (5th ed. 1979); see also 2CPatty’s Industrial Hygiene and Toxicology 4722-23 (3d. ed. 1982) (56.2?Cboiling point). This would bring acetone within the class of 1Bflammables. That the resin and acetone drums had DOT flammability tagson them also supportsthis. See note 7 supra. These facts are \”not subject to reasonabledispute . . . [and are] capable of accurate and ready determination byresort to sources whose accuracy cannot reasonably be questioned,\” Fed.R. Evid. 201(b). Official notice may be taken of them even for thefirst time on review. See Fed. R. Evid. 201(f); Pratt & WhitneyAircraft, Division of United Technologies Corp., 80 OSAHRC 38\/A2, 8 BNAOSHC 1329, 1331 n.4, 1980 CCH OSHD ? 24,447, p. 29,821 n.4 (No. 13591,1980), aff’d in part and rev’d in part without consideration of thepoint, 649 F.2d 96 (2d Cir. 1981); Attorney General’s Manual on theAdministrative Procedure Act, 80 (1947). Accordingly, we conditionallyaffirm item 3 of the citation. [[10\/]]_Item 4: 29 C.F.R. ? 1910.106(e)(2)(iv)(a)_Item 4 alleged that StanBest failed to comply with 29 C.F.R. ? 1910.106(e)(2)(iv)(a) by failing to keep \”flammable liquids . . . in coveredcontainer(s) when not actually in use.\” The citation alleged fourseparate violations of the standard. The standard states that\”[f]lammable liquids shall be kept in covered containers when notactually in use.\”The judge found violations as to all four sub-items. He rejectedStanBest’s contention that evidence of flammability was insufficient. He relied instead on the testimony of the compliance officer, whichrelied on statements made to him by Dupree and Ashford, a StanBestemployee. StanBest characterizes Black’s testimony regarding statementsmade by Dupree and Ashford as inadmissible hearsay.This argument lacks merit. Dupree’s and Ashford’s statements are clearlyadmissions by a party opponent through his agent and servant and thusare not hearsay. Fed. R. Evid. 801(d)(2); see Prestressed Systems,Inc., 81 OSAHRC 43\/D5, 9 BNA OSHC 1864, 1870, 1981 CCH OSHD ? 25,358, p.31,501 (No. 16147, 1981). In any event, hearsay is generally admissiblein administrative proceedings and may be used as probative evidence. See Power Systems Division, United Technologies Corp., 81 OSAHRC 40\/C13,9 BNA OSHC 1813, 1981 CCH OSHD ? 25,350 (No. 79-1552, 1981), and casescited therein.Item 4(a) alleged that acetone was in an uncovered plastic jug. Thecompliance officer observed the jug in the polishing area of the shop. Black, the compliance officer, testified that Dupree identified thesubstance in the jug as acetone and that Black recognized it as acetoneby its odor. He identified acetone as a 1B flammable. The reliabilityof Black’s testimony that Dupree identified the substance as acetone isgreatly enhanced by his independent recognition of the acetone by itssmell. We have previously found that acetone is a 1B flammable. Accordingly, we conditionally affirm sub-item 4(a) of the citation. Seenote 10 supra.As to sub-item 4(b), Black testified that three partially-open,five-gallon cans of gel coat, a pigmented resin, were present in theshop. Black characterized gel coat as \”a 1B flammable liquid\”; hetestified that he also recognized gel coat containers.Commissioner Cottine finds that the testimony of the compliance officer,given his extensive experience handling chemicals, establishes that thecans contained a flammable liquid in violation of section1910.106(e)(2)(iv)(a). The compliance officer’s testimony wasunrebutted and the judge specifically found the compliance officer to bea credible witness on the subject. Commissioner Cleary, however,believes that the testimony of the compliance officer does not provide asufficient basis on which to find a violation. In his view, theevidence does not establish that the containers contained gel coat, butonly that Black, from his experience, recognized similar containers inthe shop as ones that generally contained gel coat. This evidence, inCommissioner Cleary’s view, is too uncertain.Because Chairman Rowland would remand and does not reach the merits ofthe citation, the Commission members are divided on the disposition ofthis item. They therefore agree to vacate the direction for review asto sub-item 4(b). Texaco, Inc., 80 OSAHRC 74\/B1, 8 BNA OSHC 1758, 1980CCH OSHD ? 24,634 (No. 77-3040, 1980). [[11\/]]Sub-item 4(c) involved three unlabeled containers of contaminatedacetone that the compliance officer observed in front of one of thespray booths. He stated that Dupree, StanBest’s plant manager and asecond employee, Ashford, told him that the cans contained acetone withsome impurities, specifically gel coat. The compliance officertestified that the acetone would retain its flammability even down toone per cent concentrations. Inasmuch as the admission by Dupreeestablishes the presence of acetone and we have previously found thatacetone is a flammable liquid, item 4(c) is conditionally affirmed. Seenote 10 supra.Item 4(d) alleged that two open drums of acetone were located near anair compressor. Because the Secretary failed to introduce any evidenceto support this item, it is vacated._Item 2: 29 C.F.R. ? 1910.106(d)(2)(i) [[12\/]]_Item 2 involves the plastic jug cited in item 4(a). The standard statesin part that \”[o]nly approved containers . . . shall be used.\” Thecompliance officer testified that the plastic jug was not an approvedcontainer because glass or plastic are permissible containers only ifthe flammable liquid would damage the safety can and the amount of theliquid is small. The compliance officer testified that acetone wouldnot damage a safety can, and that if acetone ignited, it would melt aplastic container.The judge found a violation of the standard because the Secretaryestablished that acetone, a combustible liquid, was not in an approvedcontainer. In its brief on review, StanBest argued that the Secretarydid not establish that the plastic container used to store the acetonewas not approved by organizations listed in section 1910.106(a)(35).Commissioner Cottine would affirm this item because the jug, which hasbeen found to have contained acetone, was not an approved container fora class 1B flammable liquid. Section 1910.106(d)(2)(i) states thegeneral requirements of section 1910.106(d)(2) that only approvedcontainers be used; the remainder of the standard sheds further light onwhat containers are approved for class 1B flammables. Read as a wholeand construed together, see Hughes Brothers, Inc., 78 OSAHRC 65\/A2, 6BNA OSHC 1830, 1833, 1978 CCH OSHD 22,907, p. 27,717 (No. 12523, 1979),the provisions of section 1910.106(d)(2) indicate that a one-gallonplastic jug could not have been approved for acetone. Section1910.106(d)(2)(iii) requires that containers for flammable liquids be inaccord with Table H-12, which prohibits the use of one-gallon plasticcontainers for class 1B flammable liquids. StanBest’s use of aone-gallon plastic jug to hold acetone would also not fall within theexception in section 1910.106(d)(2)(iii), approving the domestic use of\”plastic containers of no more than 1-gallon capacity . . . for a class. . . 1B flammable liquid\” if the liquid would be rendered unfit bycontact with metal or would excessively corrode a metal container.StanBest’s storage of acetone in metal drums and the complianceofficer’s unrebutted testimony that acetone would not damage a metalsafety can demonstrate that StanBest’s one-gallon plastic jug would notfall within this exception.Commissioner Cleary would affirm the item as de minimis. The standardpermits class 1B flammables to be held in quart-size plasticcontainers. It also permits the use of one-gallon containers in somecircumstances, but for reasons stated by Commissioner Cottine, thisexception is inapplicable. However, no evidence was educed showing theamount of the liquid in the container, and it could have been less thanone quart. Thus, the only violation shown relates to the size of thecontainer, not the amount of liquid stored.Inasmuch as the Commissioners are divided on the disposition of theitem, the direction for review as to item 2 is vacated._Items 5-8, 10, 11 and 12: 29 C.F.R. ? 1910.107_Items 5-8, 10, 11 and 12 alleged violations of various provisions ofsection 1910.107, the spray finishing standard. As a threshold matter,StanBest claims that its operations do not include spray finishing andthat section 1910.107 therefore does not apply. The disputed procedureinvolves the application, by air-driven spray gun, of a mixture of gelcoat and methyl ethyl ketone peroxide (MEKP), an organic peroxide, to amold. After the mixture hardens, a similar coating–one includingstrands of cut fiberglass–is applied. The procedure takes place in twospray booths, the gel coat booth, and the chopper spray booth. In hisdecision, Judge Brady touched on the applicability issue very briefly. He concluded that StanBest’s \”plant operations come within the purviewof the standard cited,\” and that \”[s]pray booths [were] used forspraying with flammable or combustible liquids . . . .\”On review, StanBest argues that in order to prove that section 1910.107is applicable to its plant, the Secretary must demonstrate that (1) itconducted spray finishing in its plant, and that (2) dangerousquantities of flammable vapors were present. StanBest argues that theSecretary failed to prove either element. StanBest contends that readtogether, section 1910.94(c)(1)[[13\/]] and section 1910.107(a)[[14\/]]define the type of operation that constitutes spray finishing. Itclaims that the two processes it uses, the \”impacting\” of gel onto amold and the application of fiberglass to the mold, are not within thisdefinition. StanBest also claims that the compliance officer did nottestify that dangerous quantities of flammable or combustible substanceswere present, or conduct any tests to determine the presence ofdangerous vapors. In StanBest’s view, the compliance officer merelyasserted that he observed chemicals and concluded that they presentedhazards to employees.StanBest has overlooked that section 1910.107 has a controlling scopeprovision. Section 1910.107(n) states that the section applies to alloperations that involve \”flammable and combustible finishing materialswhen applied as a spray by compressed air, ‘airless’ or ‘hydraulicatomization,’ steam, electrostatic methods, or by any other means incontinuous or intermittent processes.\” [[15\/]] There is little doubtthat the finishing materials StanBest uses are applied \”as a spray.\” That StanBest’s process may be correctly termed \”impact placement\” doesnot mean that it is not also spray finishing within the meaning ofsection 1910.107. StanBest’s \”impact placement\” argument is thereforewithout merit. Moreover, section 1910.107(m).[[16\/]] is directedspecifically at spraying operations where \”organic peroxides [such asMEKP] and other dual component coatings\” are used. That it requiresthat such operations \”be conducted in approved sprinklered spray boothsmeeting the requirements of [section 1910.107]\” strongly suggests thatStanBest’s operation is covered by section 1910.107. [[17\/]]StanBest also claims that section 1910.107 does not apply to itsoperations unless \”dangerous quantities of flammable vapors or mists, orcombustible residues, dusts, or deposits are present due to theoperation of spraying processes\” within the meaning of section1910.107(a)(2). This argument is without merit. Section 1910.107(a)(2)is not a scope provision for all of section 1910.107. It is instead adefinition of a single term, \”spraying area,\” that is used in only someprovisions of section 1910.107. The Secretary is therefore not requiredto demonstrate the presence of \”dangerous quantities of flammable vaporsor mists, or combustible residues, dust, or deposits\” if the citedstandard does not specifically address \”spraying areas\”. See FusiblesWestinghouse de Puerto Rico v. OSHRC, 658 F.2d 21, 24 (1st Cir. 1981)Of the standards cited here only sections 1910.107(c)(2) and1910.107(g)(2) speak of \”spraying areas.\” [[18\/]] Inasmuch ascompliance officer Black testified that \”combustible residues,\”specifically resin, acetone and MEKP residues, had accumulated on thewalls and floor of both spray booths, the areas cited under thosestandards (the interior and vicinity of spray booths) were shown to bespraying areas under Ed Jackman Pontiac-Olds, Inc., 80 OSAHRC 26\/D14, 8BNA OSHC 1211, 1215, 1980 CCH OSHD ? 24,351, p. 29,681 (No. 76-20, 1980).The other items that cite section 1910.107 involve standards directed atspray booths. As we have said, it is not necessary to adduce evidencethat these booths are also spraying areas. Moreover, section1910.107(m)(1) specifically requires that \”[a]ll spraying operationsinvolving the organic peroxides and other dual component coatings . . .be conducted in approved sprinklered spray booths meeting therequirements of this section [1910.107].\” This leaves no room fordoubt. Because StanBest uses MEKP, an organic peroxide, its spraybooths must comply with section 1910.107._Economic Feasibility_StanBest also contends that at least the items cited under section1910.107 should be vacated because the Secretary did not demonstratethat compliance with section 1910.107 is both economically andtechnologically feasible. Citing to Industrial Union Department,AFL-CIO v. Hodgson, 499 F.2d 467, 478 (D.C. Cir. 1974), StanBestmaintains that standards are not designed to protect employees byputting their employers out of business. Moreover, StanBest claims thatcompliance with the cited standards would force it out of business. Itcontends that compliance would require an investment of over $30,000,which would exceed the capitalization of the company.StanBest’s contentions are without merit. Except in cases wherefeasibility is specifically encompassed by the terms of the standard,see Sun Ship, Inc., 82 OSAHRC ___, 11 BNA OSHC 1028, 1983 CCH OSHD ?26,353 (No. 16118, 1982), the Secretary does not have the burden ofproving the feasibility of abatement measures. See Hughes Brothers,Inc., 78 OSAHRC 65\/A2, 6 BNA OSHC 1830, 1835, 1978 CCH OSHD ? 22,909, p.27,719 (No. 12523, 1978). An employer may affirmatively defend againsta citation by demonstrating that compliance with a standard isimpossible. M.J. Lee Construction Co., 79 OSAHRC 12\/A2, 7 BNA OSHC1140, 1979 CCH OSHD ? 23,330 (No. 15094, 1979). However, a claim by anemployer that compliance with a standard would be expensive oreconomically burdensome is not relevant to an employer’s obligation tocomply. Research Cottrell, Inc., 81 OSAHRC 26\/B13, 9 BNA OSHC 1489,1498, 1981 CCH OSHD ? 25,284, p. 31,266 (No. 11756, 1981). Moreover,apart from its assertions, StanBest introduced no evidence to supportits contention that the costs of abatement would drive it out ofbusiness. In fact, the issue was only raised for the first time in itspost-hearing brief to the judge._Item 5: 29 C.F.R. ? 1910.107(b)(1) [[19\/]]_Item 5 alleged that StanBest’s \”chopper [s]pray booth was notsubstantially constructed of steel, concrete, or masonry,\” but ofcelotex, which the compliance officer characterized as a combustiblematerial. He testified that a fire hazard existed in the booth becauseacetone and MEKP were running out of the impact placement gun onto thefloor while the operator adjusted it. The compliance officer statedthat a mixture of acetone and MEKP would detonate if the temperature wasraised \”substantially.\”In affirming this item, the judge credited the compliance officer’sunrefuted testimony. He found that although StanBest claimed thatacetone was not present, MEKP, which is flammable, was present.StanBest again maintains that the compliance officer was incompetent totestify about explosions. It characterized his conclusions about thehazard associated with the booth’s construction as unsubstantiated opinion.Item 5 is affirmed. The Secretary need not demonstrate the existence ofa hazard in order to show noncompliance with the cited standard. As wehave said, a showing under section 1910.107(a)(2) need not be made underthis \”spray booth\” standard, and section 1910.107(m)(1) specificallyrequires that the spray booth requirements be followed. If thestandards do not incorporate a requirement that a hazard be shown toexist, such a showing is not part of the Secretary’s prima facie case. See Austin Bridge Co., 79 OSAHRC 81\/A2, 7 BNA OSHC 1761, 1765-66, 1979CCH OSHD ? 23,935, p. 29,021 (No. 76-93, 1979); see also Modern DropForge Co. v. Secretary of Labor, 638 F.2d 1105, 1114 (7th Cir. 1982);Grey-hound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir. 1978). It is therefore enough here to find that the evidence demonstrates thatthe spray booth was not constructed of steel, concrete, masonry oraluminum but was constructed of a combustible material._Item 6: 29 C.F.R. ? 1910.107(b)(5)(i) [[20\/]]_Item 6 alleges that the gel coat spray booth was not equipped with\”[v]isible gauge(s),\” \”audible alarms,\” or \”pressure activateddevice(s).\” The compliance officer testified that he found no device toindicate the difference in air velocity on either side of the filter. He testified that in the absence of such a device, it would be difficultto determine if the air flow had been reduced by a clogged filter. Hestated that the filter itself could also become clogged with combustiblematerial, which could increase the possibility of fire.The judge held that the compliance officer’s uncontroverted testimonyestablished that the standard was violated.StanBest argues that the proof of a violation is \”nonprobative andincomplete\” because no tests were taken by the compliance officer. Suchtests are unnecessary. The evidence establishes that StanBest’s boothlacked the required devices. Accordingly, the item is affirmed._Item 7: 29 C.F.R. ? 1910.107(b)(5)(iv)[[21\/]]_Item 7 alleges that the gel coat spray booth was not equipped with anautomatic fire extinguishing system on its downstream and upstreamsides. According to the compliance officer, there was no automaticextinguishing system of any kind in the entire building. The complianceofficer stated that deposits could form and fires occur on thedownstream side of the filters.The judge relied on the compliance officer’s uncontroverted testimony inaffirming this item. StanBest contended that the proof for this item\”share[s] the lack of scientific fact and abundance of guesswork whichcharacterizes so much of the evidence in this case.\”Item 7 is affirmed. The compliance officer’s testimony establishes theabsence of the automatic sprinklers required by section 1910.107(b)(5)(iv)._Item 8: 29 C.F.R. ? 1910.107(b)(6)[[22\/]]_Item 8 alleges that StanBest did not have the required \”metal deflectoror curtain. . . . installed at the upper outer edge of the [chopperspray] booth over the opening.\” The compliance officer stated that thebooth, which had a frontal area of 300 square feet, had no deflector ofany type and a zero air flow. The compliance officer stated that thedeflector \”deflects what air flow you have down to the floor . . . .[to] sweep away any flammable vapors . . . . \” He testified that withouta deflector, flammable vapors could accumulate inside the booth andpossibly explode.Item 8 is affirmed. StanBest’s general exception to the \”lack ofscientific fact and abundance of guesswork\” is without merit. The judgecorrectly relied on the compliance officer’s uncontroverted testimonythat StanBest had not installed deflectors or curtains at the opening ofthe booth. StanBest therefore failed to comply with section 1910.107(b)(6)._Item 10: 29 C.F.R. ? 1910.107(c)(2) [[23\/]]_Item 10 alleged the presence of a bare fluorescent light bulb within 28inches of the chopper spray booth. The standards states in part that\”[t]here shall be no . . . spark producing equipment . . . within 20feet [of any spraying area], unless separated by a partition.\” Thecompliance officer testified that the starter inside the fluorescentfixture \”has a static discharge occasionally.\” Again relying on theuncontroverted testimony of the compliance officer, the judge affirmedthe item.Item 10 is affirmed. The compliance officer’s testimony that thestarter in a fluorescent light tube occasionally has a static dischargeis unrebutted. We also note that the compliance officer’s testimony isconsistent with section 1910.107(c)(7). [[24\/]]_Items 11 and 12: 29 C.F.R. ? 1910.107(g)(2) and (n)(1)_In its brief on review, StanBest argues only that these standards do notapply. Inasmuch as we have found previously that the 1910.107 standardsdo apply, and StanBest does not otherwise object, we affirm the judge’sdisposition without further discussion._Item 13: 29 C.F.R. ? 1910.134(b)(6) [[25\/]]_Item 13 alleged that the respirator used by \”[t]he employee in thechopper spray booth was hung on a nail on a post at the face of thespray booth.\” StanBest did not object to the judge’s affirmance of thisitem in its petition for discretionary review. We therefore concludethat it is not before us on review. See Commission Rule 92(c), 29C.F.R. ? 2200.92(c). In any event, the judge’s affirmance of the itemis supported by the evidence._Penalty_The Secretary proposed and the judge assessed a penalty of $25 for item4. The careless use of the flammable liquids by StanBest might call fora larger penalty. However, in view of StanBest’s small size, lack ofhistory of previous violations, and its claims that it will be put infinancial jeopardy by compliance, we conclude that $25 is an appropriatepenalty.Accordingly, the direction for review is vacated as to item 2 andsub-item 4(b). Items 5, 6, 7, 8, 10, 11, 12, and 13 are affirmed. Item3 and sub-items 4(a) and 4(c) are affirmed unless StanBest requests anopportunity to introduce evidence contrary to officially noticed factswithin ten days of this decision’s date of issuance. Sub-item 4(d) isvacated. A penalty of $25 is assessed.SO ORDERED.FOR THE COMMISSIONRay H Darling, Jr.Executive SecretaryDATED: FEB 28 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] The rule states that \”[a]n affidavit may be admitted as evidencein lieu of oral testimony if the matters therein contained are otherwiseadmissible and the parties agree to its admission.\”[[2\/]] Commissioner Cottine notes that, according to the record, at notime has StanBest sought to introduce the testimony of Dupree intoevidence, having relied instead solely on the affidavit that theCommission has now considered.[[3\/]] In view of the Commission’s conclusion that the inspection inthis case was lawful, Commissioner Cottine notes that it is notnecessary to reconsider the Commission’s holding in Meadow’s Industries,Inc., 79 OSAHRC 74\/F2, 7 BNA OSHC 1709, 1979 CCH OSHD ? 23,847 (No.76-1463, 1979). In that case we held that an inspection conducted inviolation of the principles set forth in Marshall v. Barlow’s, Inc.,supra, and occurring prior to the decision in Barlow’s, was notretroactively remediable. See note 4 of dissenting opinion infra. TheCommission held unanimously in Carl M. Geupel Constr. Co., 82 OSAHRC60\/B5, 10 BNA OSHC 2097, 1982 CCH OSHD ? 26,309 (Nos. 81-55 & 81-56,1982), that retroactive effect would be given to the Commission decisionin Sarasota Concrete Co., 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1981 CCHOSHD ? 25,360 (No. 78-5264, 1981), aff’d, 693 F.2d 1061 (11th Cir.1982). However, Geupel involved a post-Barlow’s inspection and theMeadows issue was not addressed in the differing rationales of the Members.The conclusion of the majority in Geupel that the application of thecivil retroactivity test of Chevron Oil Co. v. Huson, 404 U.S. 97(1971), would not yield a different result than would application of thetest of United States v. Johnson, 102 S.Ct. 2579 (1982), see note 1 ofdissenting opinion infra, was directed to the retroactive application ofthe Sarasota holding regarding the scope of warrants, not theconstitutional principles of Barlow’s. Although Commissioner Cottineobjected to the majority’s reliance on the criminal retroactivity testof Johnson, he concurred in the retroactivity holding of Geupel becauseSarasota did not constitute a \”clear break\” with past precedent as thattest has been applied in the civil context. The Commission’s Sarasotaholding on the permissible scope of warrants was premised on controllingSupreme Court precedent. However, the considerations that led to theretroactivity holding of Geupel do not necessarily yield the same resultwhen the retroactivity holding of Chevron Oil. Although the SupremeCourt concluded in Barlow’s that nonconsensual, warrantless OSHAinspections were not constitutionally authorized, inspections conductedprior to Barlow’s were authorized by an express act of Congress and werearguably controlled by either of two separate lines of Supreme Courtprecedent. Compare G.M. Leasing Corp. v. United States, 429 U.S. 338(1977), United States v. Biswell, 406 U.S. 311 (1972), and ColonnadeCatering Corp. v. United States, 397 U.S. 72 (1970) with See v. City ofSeattle, 387 U.S. 541 (1967) and Camara v. Municipal Court, 387 U.S. 523(1967). Indeed, subsequent to its decision in Barlow’s, the Courtapplied the Colonnade-Biswell line of authority to permit warrantlessinspections under a regulatory statute involving mine safety and health. Donovan v. Dewey, 101 S.Ct. 2534 (1981). Accordingly, CommissionerCottine considers his dissenting colleague’s suggestion that theapplications of the civil and criminal retroactivity tests would yieldthe same result in all Fourth Amendment cases to be without legalfoundation.[[4\/]] In its petition for review, StanBest argued that it is notengaged in business affecting interstate commerce because it doesbusiness only in Georgia. Citing Anchorage Plastering Co., 75 OSAHRC65\/A2, 3 BNA OSHC 1284, 1974-75 CCH OSHD ? 19,720 (No. 3322, 1975),rev’d, 570 F.2d 351 (9th Cir. 1978), it contends that the complianceofficer’s testimony regarding the origins of materials used atStanBest’s plant does not constitute credible evidence of an effect oninterstate commerce. StanBest does not address this issue in its briefon review, which was submitted after counsel had been retained. Thisindicates that it has abandoned the issue. S&S Diving Co., 80 OSAHRC85\/D3, 8 BNA OSHC 2041, 2042, 1980 CCH OSHD ? 24,742, p. 30,464 (No.77-4234, 1980). We also note that its argument lacks merit. First,Anchorage Plastering is a split decision with no precedential value. Second, there is sufficient evidence in the record to support thejudge’s conclusion. StanBest’s president testified that he traveled outof state to promote the company’s products; the compliance officer’stestimony that some of the components of StanBest’s products were fromout of state was not rebutted.Both before the judge and in its petition for review, StanBest alsoargued that one of the compliance officers was not a credible witnessbecause of his interest in starting a business similar to that ofStanBest. StanBest did not address the issue in its brief on review andwe again conclude that it has been abandoned. Moreover, we remainunconvinced of any merit in StanBest’s claim.[[5\/]] ? 1910.106 Flammable and combustible liquids.* * *(e) Industrial plants–(1) Scope–(i) Application. This paragraph [(e)] shall apply to those industrialplants where:(a) the use of flammable or combustible liquids is incidental to theprincipal business, or(b) Where flammable or combustible liquids are handled or used only inunit physical operations such as mixing, drying, evaporating, filtering,distillation, and similar operations which do not involve chemicalreaction. This paragraph shall not apply to chemical plants,refineries, or distilleries.(ii) Exceptions. Where portions of such plants involve chemicalreactions such as oxidation, reduction, halogenation, hydrogenation,alkylation, polymerization, and other chemical processes, those portionsof the plant shall be in accordance with paragraph (h) of this section.(2) Incidental storage or use of flammable and combustible liquids–(i) Application. This subparagraph shall be applicable to thoseportions of an industrial plant where the use and handling of flammableor combustible liquids is only incidental to the principal business,such as automobile assembly, construction of electronic equipment,furniture manufacturing, or other similar activities.(ii) Containers. Flammable or combustible liquids shall be stored intanks or closed containers.(a) Except as provided in subdivisions (b) and (c) of this subdivision,all storage shall comply with paragraph (d)(3) or (4) of this section.(b) The quantity of liquid that may be located outside of an insidestorage room or storage cabinet in a building or in any one fire area ofa building shall not exceed:(2) 120 gallons of Class IB, IC, II, or III liquids in containers.[[6\/]] On review, StanBest argues for the first time that the judgeimproperly restricted its cross-examination of compliance officer Blackregarding polymerization. StanBest acknowledges the general rule inFederal Rule of Evidence 611(b) that cross-examination \”should belimited to the subject matter of the direct examination and mattersaffecting the credibility of the witness.\” It argues that itscross-examination of Black was appropriate because it dealt with mattersraised on direct examination and with Black’s credibility.Inasmuch as StanBest did not raise this issue in its petition for reviewor before the judge, it would ordinarily not be on review. CommissionRules 92(c)and (d). Moreover, StanBest’s argument lacks merit. Black’s testimony did not at all concern polymerization. As toStanBest’s claim that the questions posed to Black were intended toattack his credibility, we note that StanBest’s president did not thenmake clear to the judge his intent to attack the compliance officer’scredibility. The judge inquired into the purpose of thecross-examination and upon being told it was to establish that StanBestwas excepted from the requirements of the cited standard, he carefullyexplained that StanBest could fully raise that issue in its own case. StanBest has not explained why it could not have proven its exception onits own. Although Federal Rule 611(b) allows, in the exercise ofdiscretion, \”inquiry into additional matters as if on directexamination,\” we cannot say that the judge abused his discretion here.[[7\/]] DOT tags indicate that the liquids within containers are\”flammable liquids\” and have flashpoints below 100? F. See 49 C.F.R. ??172.419, 171.8 and 173.115(a)(1). We may take official notice of thesignificance of the DOT tags. See 44 U.S.C. ? 1507 (\”[t]he contents ofthe Federal Register shall be judicially noticed . . . .\”) (The Code ofFederal Regulations is a special edition of the Federal Register. 44U.S.C. ? 1510.)[[8\/]] ? 1910.106 Flammable and combustible liquids.(a) Definitions.(18) \”Combustible liquid\” means any liquid having a flashpoint at orabove 100?F . . . . Combustible liquids shall be divided into twoclasses . . . :(i) \”Class II liquids: shall include those with flashpoints at or above100?F. . . and below 140?F. . . . [exception omitted].(ii) \”Class III liquids\” shall include those with flashpoints at orabove 140?F. . . .***(19) \”Flammable liquid\” means any liquid having a flashpoint below100?F. . . . [exception omitted]. Flammable liquids shall be known asClass I liquids. Class I liquids are divided into three classes as follows:(i) Class IA shall include liquids having flashpoints below 73?F . . . .and having a boiling point below 100?F. . . .(ii) Class IB shall include liquids having flashpoints below 73?F . . .and having a boiling point at or above 100?F . . . .(iii) Class IC shall include liquids having flashpoints at or above 73?F. . . and below 100?F. . . .[[9\/]] The statement by the Secretary’s counsel that Black wasincompetent to testify to the degree of flammability, when read incontext, merely indicates that, although Black knew that acetone andresin were 1B flammables, he did not know their exact flashpointswithout referring to a chart.[[10\/]] Under section 7(d) of the Administrative Procedure Act, 5 U.S.C.? 556(e), an agency taking official notice of a material fact not in therecord is required to allow a party the opportunity to show thecontrary. We affirm those items of this decision that rely onofficially noticed facts unless StanBest requests an opportunity withinten days to show contrary evidence.[[11\/]] Commissioner Cottine agrees to vacate the direction for reviewas to this item because the directing member joins in this dispositionand all other criteria for this action have been satisfied. See LoneStar Steel Co., 81 OSAHRC 105\/E7, 10 BNA 1228, 1231, 1982 CCH OSHD ?25,825, p. 32,286 (Nos. 77-3893 & 77-3894, 1981)(Cottine, Commissioner,concurring); Keco Indus. Inc., 79 OSAHRC 105\/D9, 7 BNA OSHC 2048, 2052,1979 CCH OSHD ? 24,117, p. 29,310 (No. 78-661, 1979)(Cottine,Commissioner, dissenting). Compare Shaw Constr., Inc. v. OSHRC, 534F.2d 1183, 1185-86 (5th Cir. 1976), with Marshall v. Sun Petroleum Prod.Co., 622 F.2d 1176, 1179-80 (3d Cir. 1980).[[12\/]] Section 1910.106(d)(2)(i) states:(d) Container and Portable Tank Storage–(1) Scope-(i) General. Thisparagraph shall apply only to the storage of flammable or combustibleliquids in drums or other containers (including flammable aerosols) notexceeding 60 gallons individual capacity and those portable tanks notexceeding 660 gallons individual capacity.***(2) Design, construction, and capacity of containers–(i) General. Only approved containers and portable tanks shall be used. Metal containers and portable tanks meeting the requirements of andcontaining products authorized by Chapter 1, title 49 of the Code ofFederal Regulations (regulations issued by the Hazardous MaterialsRegulations Board, Department of Transportation), shall be deemed to beacceptable.***(iii) Size. Flammable and combustible liquid containers shall be inaccordance with Table H-12, except that glass or plastic [emphasisadded] containers of no more than 1-gallon capacity may be used for aClass 1A or 1B flammable liquid if:(a)(1) Such liquid either would be rendered unfit for its intended useby contact with metal or would excessively corrode a metal container soas to create a leakage hazard; and(2) The user’s process either would require more than 1 pint of a Class1A liquid or more than 1 quart of a Class 1B liquid of a single assaylot to be used at one time, or would require the maintenance of ananalytical standard liquid of a quality which is not met by thespecified standards of liquids available, and the quantity of theanalytical standard liquid required to be used in any one controlprocess exceeds one-sixteenth the capacity of the container allowedunder Table H-12 for the class of liquid; or(b) The containers are intended for direct export outside the UnitedStates.Table H-12 Maximum Allowable Size of Containers and Portable TanksFlammableClass IAContainer type \tliquidsClass IB \tClass IC \tCombustibleClass II \tliquidsClass IIIGlass or approvedplastic \t1 pt. \t1 qt. \t1 gal. \t1 gal. \t1 gal.Metal (other thanDOT drums) \t1 gal. \t5 gal. \t5 gal. \t5 gal. \t5 gal.Safety cans \t2 gal. \t5 gal. \t5 gal. \t5 gal. \t5 gal.Metal Drums (DOTspecifications) \t60 gal. \t60 gal. \t60 gal. \t60 gal. \t60 gal.Approved portabletanks \t660 gal. \t660 gal. \t660 gal. \t660 gal. \t660 gal.(Note in table omitted.) Section 1910.106(a)(35) states:Approved unless otherwise indicated, [means] approved, or listed by atleast one of the following nationally recognized testing laboratories: Underwriters Laboratories, Inc.; Factory Mutual Engineering Corp.[[13\/]] Section 1910.94(c)(1) reads as follows:? 1910.94 Ventilation.* * *(c) Spray finishing operations–(1) Definitions applicable to thisparagraph [(c)]–(i) Spray-finishing operations. Spray-finishingoperations are employment of methods wherein organic or inorganicmaterials are utilized in dispersed form for deposit on surfaces to becoated, treated, or cleaned. Such methods of deposit may involve eitherautomatic, manual, or electrostatic deposition but do not include metalspraying or metallizing, dipping, flow coating, roller coating,tumbling, centrifuging, or spray washing and degreasing as conducted inself-contained washing and degreasing machines or systems.[[14\/]] Section 1910.107(a)(2) states:(a) Definitions applicable to this section–* * *(2) Spraying area. Any area in which dangerous quantities of flammablevapors or mists, or combustible residues, dust, or deposits are presentdue to this operation of spraying processes.[[15\/]] Section 1910.107(n), reads in full as follows:? 1910.107 Spray Finishing using flammable and combustible materials.(n) Scope. This section applies to flammable and combustible finishingmaterials when applied as a spray by compressed air, \”airless\” or\”hydraulic atomization,\” steam, electrostatic methods, or by any othermeans in continuous or intermittent processes. The section also coversthe application of combustible powders by powder spray guns,electrostatic power spray guns, fluidized beds, or electrostaticfluidized beds. This section does not apply to cut-door sprayapplication of buildings, tanks or other similar structures, nor tosmall portable spraying apparatus not used repeatedly in the same location.[[16\/]] Section 1910.107(m) states:(m) Organic peroxides and dual component coating–(1) Conformance. Allspraying operations involving the use of organic peroxides and otherdual component coatings shall be conducted in approved sprinklered spraybooths meeting the requirements of this section.[[17\/]] The reasons for the special treatment of organic peroxides areexplained in the appendix to the source standard for section 1910.107. See paragraph A.900, of the Appendix to National Fire ProtectionAssociation (NFPA) No. 33–1969, Standard for Spray Finishing UsingFlammable and Combustible Materials, reprinted in 3 NFPA, Guide to OSHAFire Protection Regulations, at pp. 33-47 – 33-50 (2d ed. 1972).[[18\/]] Sections 1910.107(c)(2) and (g)(2) read as follows:(c) Electrical and other sources of ignition–(2) Minimum separation. There shall be no open flame or spark producingequipment in any spraying area nor within 20 feet thereof, unlessseparated by a partition.(g) Operations and maintenance–(2) Cleaning. All spraying areas shall be kept as free from theaccumulation of deposits of combustible residues as practical, withcleaning conducted daily if necessary. Scrapers, spuds, or other suchtools used for cleaning purposes shall be of nonsparking materials.[[19\/]] Section 1910.107(b)(1) states:(b) Spray booths–(1) Construction. Spray booths shall be substantiallyconstructed of steel, securely and rigidly supported, or of concrete ormasonry except that aluminum or other substantial noncombustiblematerial may be used for intermittent or low volume spraying. Spraybooths shall be designed to sweep air currents toward the exhaust outlet.[[20\/]] Section 29 C.F.R. ? 1910.107(b)(5)(i) states in pertinent part:(5) Dry type overspray collectors–(exhaust air filters). In conventional dry type spray booths, overspray dry filters or filterrolls, if installed, shall conform to the following:(i) The spraying operations except electrostatic spraying operationsshall be so designed, installed and maintained that the average airvelocity over the open face of the booth (or booth cross section duringspraying operations) shall be not less than 100 linear feet per minute.. . . Visible gauges or audible alarm or pressure activated devicesshall be installed to indicate or insure that the required air velocityis maintained.[[21\/]] Section 1910.107(b)(5)(iv) states:(5) Dry type overspray collectors–(exhaust air filter). Inconventional dry type spray booths, overspray dry filters or filterrolls, if installed, shall conform to the following:***(iv) Space within the spray booth on the downstream and upstream sidesof filters shall be protected with approved automatic sprinklers.[[22\/]] Section 1910.107(b)(6) states:(6) Frontal area. Each spray booth having a frontal area larger than 9square feet shall have a metal deflector or curtain not less than 2 1\/2inches deep installed at the upper outer edge of the booth over the opening.[[23\/]] See note 18 supra.[[24\/]] Section 1910.107(c)(7) states:(7) Lamps. Electric lamps outside of, but within twenty (20) feet ofany spraying area, and not separated therefrom by a partition, shall betotally enclosed to prevent the falling of hot particles and shall beprotected from mechanical injury by suitable guards or by location.[[25\/]] Section 1910.134(b)(6) states:? 1910.134 Respiratory protection.* * *(b) Requirements for a minimal acceptable program.(6) Respirators shall be stored in a convenient, clean and sanitarylocation.”