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 the Commission for review under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  Judge Brady affirmed several items of a citation alleging a failure by StanBest, Inc. ("StanBest") to comply with various occupational safety and health standards in 29 C.F.R. Part 1910.  Commissioner Cleary directed review of all the issues raised in StanBest's petition for review.  We vacate the direction for review in part; with respect to the items remaining on review, we affirm the judge's decision in part and reverse in part.

StanBest's Motion to Suppress Evidence

At its Fairburn, Georgia plant, StanBest manufactures fiberglass tub and shower units.  On September 21, 1976, two compliance officers representing the Secretary of Labor ("the Secretary") arrived at the plant to conduct an inspection.  At the time of their arrival, Stavrolakis, the company's president, was not present.  They were met by StanBest's plant manager, Dupree.  According to compliance officer Black, he informed Dupree that they were going to conduct an OSHA inspection, that they might take photographs, and that he could accompany them.   Black testified that Dupree stated "[t]hat's fine," that for about 30 minutes he obtained information about the chemicals in use in StanBest's manufacturing process, and then began the inspection.  Compliance officer Cassell testified that Dupree gave permission to inspect the plant.  The two compliance officers and Dupree inspected the plant together.  Stavrolakis arrived at the plant during the closing conference following the inspection.  Black and compliance officer Cassell then went back through the plant with Stavrolakis and conducted a second closing conference with him.

At the hearing, StanBest, represented by Stavrolakis, moved to vacate the citation, arguing that the evidence to support it had been obtained illegally.  In support of this motion, it offered an affidavit by Dupree purportedly demonstrating that the compliance officers entered StanBest's plant without Dupree's consent.  The affidavit reads as follows:

On the afternoon of Sept. 21, 1976, two men walked into the plant office located at 348 Bay St., Fairburn, Georgia and announced that they were from OSHA.   They said that they were there to inspect the plant.  I told them that the owner, a Mr. James A. Stavrolakis, was out picking up supplies, 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 all about OSHA, since I had a small fiberglass plant in South Georgia.  As a result of their inspection of my plant, I had to close down the operation and put eight (8) people on welfare.  The visitors got impatient and said they were going through the plant.  I told them that I would urgently try to contact J. Stavrolakis.  I did locate him by telephone, and he said he would rush back right away.  The visitors were unwilling to wait and went through the plant even though over the entrance to the plant area is a sign stating "Authorized Personnel Only."  Messrs. L. Black and P. Cassell made notations and took unauthorized photographs.  Mr. J. Stavrolakis arrived at the plant just as the visitors were about to leave, and he sat down to listen to the alleged citations.  He asked them if both were on assignment.  Mr. Black said only he was on assignment and that Mr. Cassell was only accompanying him.

The judge refused to accept the affidavit on the ground that Dupree was not present for cross-examination.  At the close of the hearing, the judge denied the motion to suppress and reiterated his exclusion of Dupree'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 the inspection should be suppressed because the inspection was conducted without a warrant and without its consent, and therefore in violation of the Fourth Amendment and 29 C.F.R. § 1903.4, one of the Secretary's rules governing inspections.  As evidence of its lack of consent, StanBest points to the affidavit of its plant manager, which it contends was improperly excluded by the judge.  In a supplemental brief filed following the Supreme Court's decision in Marshall v. Barlow's, Inc. 436 U.S. 307 (1978), StanBest argues that under Linkletter v. Walker, 381 U.S. 618 (1965), Barlow's should be applied here because intervening decisions apply to cases pending on appeal when those decisions are issued.

The Secretary argues that the judge's conclusion that there was "nothing shown to be irregular [about the] inspection" indicates that there was consent to the inspection.  He maintains that the judge properly excluded the affidavit because Dupree was not present for cross-examination, StanBest made no effort to show that Dupree was unavailable, and StanBest did not request that the record remain open for his testimony.  The Secretary also contends that even if Dupree's affidavit were admitted, nothing in the affidavit indicates that Dupree denied the compliance officers permission to enter or conditioned their entry on Stavrolakis' presence.  Citing to United States v. Peltier, 422 U.S. 531 (1975), the Secretary contends that even if the search did lack consent, Barlow's should not be applied retroactively because the compliance officers reasonably believed that a warrant was not required.

StanBest claim that the inspection took place without its consent rests entirely on the facts set out in the affidavit.  Dupree's affidavit described the events surrounding the inspection of StanBest's plant, but in light of the consistent, contrary testimony of the two compliance officers, it is too unclear and lacking in specifics to provide a basis for us to conclude that the compliance officers entered StanBest's plant without consent.  In fact, the affidavit does not state that the compliance officers were denied entry by Dupree or that Stavrolakis objected to the inspection when he arrived at the plant.  Thus, even if we 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 do not reach--the affidavit fails to rebut the testimony of the compliance officers.[[2/]]  Accordingly, we conclude that the inspection was lawful, [[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 section 1910.106(e)(2)(ii)(b)(2) by storing "[m]ore than 120 gallons of Class 1B, 1C, II, or III flammable or combustible liquids outside of inside storage room(s) or storage cabinet(s)."  The item alleged that five full drums of resin and two of acetone were stored in the shop.  According to its scope provision, coverage of section 1910.106(e) is limited to "industrial plants."  Section 1910.106(e)(1).  The compliance officer testified that because StanBest's plant was not covered by any of the other subparts of section 1910.106(e), it was an industrial plant.  The judge affirmed item 3 of the citation but did not specifically find that StanBest operated an "industrial plant."  Although polymerization occurred in StanBest's plant, the judge found that the storage of flammables and the process of polymerization were separate functions, and that StanBest had failed to delineate their relationship sufficiently to establish an exception under section 1910.106(e)(2).

StanBest argues that section 1910.106(e) was not shown to apply to its plant because the compliance officer's testimony does not establish that the plant was an "industrial plant."  It also contends that even if its operation was an "industrial plant" covered by section 1910.106(e), it would be excluded from coverage by the exception for polymerization and other chemical processes in section 1910.106(e)(1)(ii).

The Secretary maintains that because StanBest is involved in the manufacture of fiberglass tub and shower units, its operation involves an "industrial plant" as does the assembly of automobiles and the manufacture of furniture listed as examples in section 1910.106(e).  The Secretary also contends that StanBest has not made out an exception under section 1910.106(e)(1)(ii).  The Secretary points out that although there is an exception in the regulations for those parts of industrial plants where polymerization occurs, StanBest's alleged infractions of section 1910.106 did not take place in areas of its plant where 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.  It is an "industrial plant" within the plain meaning of the term.  It is certainly not one of the specialized plants that transfer, disburse and refine flammable and combustible liquids and are governed by other subdivisions of section 1910.106.

StanBest has also failed to demonstrate that the polymerization that takes place at its plant excepts it from the coverage of section 1910.106(e).  According to section 1910.106(e)(1)(ii), if any portion of a plant involves a chemical reaction such as polymerization, that portion must meet the requirements of section 1910.106(h), rather than section 1910.106(e).  StanBest claims that polymerization takes place in its plant, but it has not identified the areas of the plant in which the alleged violations of section 1910.106(e) occurred as areas where polymerization was conducted.  Because the party claiming the benefit of an exception has the burden of proving that its claim comes within the exception, see United States v. First City National Bank of Houston, 386 U.S. 361, 366 (1967); Durant Elevator, A Division of Scoular-Bishop Grain 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 exception must fail.[[6/]]

We now turn to the question of noncompliance.  Black, the compliance officer, testified that there were five, full 55-gallon drums of resin and two full drums of acetone in an area near the spray booths.  Black identified the substances in the barrels as resin and acetone on the basis of discussions he had with Dupree, StanBest's plant manager.  He stated that Dupree told him that the resin drums were lying on the floor for lack of better storage space and the acetone drums were present because that was "where they stored their material." Black stated that all of the barrels had red, Department of Transportation ("DOT") flammability labels on them. [[7/]]   He estimated that the seven barrels contained approximately 400 gallons of liquid. Black also testified that he observed three of StanBest's employees near the barrels and that the plant had no inside storage room.  Black stated that he knew acetone and resin were classified as 1B flammables from his experience as a safety director for a chemical company. [[8/]]  Black testified that in that capacity he had handled bulk acetone and "assisted in the handling, shipping, packaging and storage of flammables, caustics, and acids."

The judge affirmed item 3.  He apparently relied on the compliance officer's testimony that the drums contained acetone and resin and found that the drums contained "[f]lammable or combustible liquids in excess of 120 gallons."   He did not specifically find that acetone or resin were class 1B, 1C, II, or III flammables.

StanBest argues that because the identity and character of the substances in the drums cannot be determined unless samples are taken and tests made, the evidence introduced by the Secretary is insufficient to establish a violation.  It contends that the Secretary failed to show that resin and acetone were class 1B flammables, and relied instead on what it characterizes as the compliance officer's "undetermined" experience for that proof.  StanBest also argues that the Secretary's counsel asserted that the compliance officer was incompetent to testify to the flashpoint of acetone or resin.

Compliance officer Black testified without contradiction that StanBest's own plant manager indicated to him that the barrels contained acetone and resin.  We therefore do not think it was necessary for the compliance officers to have taken samples or conducted tests to ascertain the contents of the drums.  We find that the cited drums contained acetone and resin.

We also find that class 1B substances were present.  By reason of his experience in handling, packaging, and storing acetone, resin and other chemicals and his conversations with StanBest's plant manager, Black testified credibly to the classification of acetone and resin.[[9/]] This testimony was unrebutted. In any event, we take official notice that the boiling point of acetone is 56.48ºC or 134ºF, and that the flashpoint of acetone is -18ºC or 0ºF.  See, e.g., N.I. Sax, Dangerous Properties of Industrial Materials 334 (5th ed. 1979); see also 2C Patty's Industrial Hygiene and Toxicology 4722-23 (3d. ed. 1982) (56.2ºC boiling point).  This would bring acetone within the class of 1B flammables.  That the resin and acetone drums had DOT flammability tags on them also supports
this.  See note 7 supra.  These facts are "not subject to reasonable dispute . . . [and are] capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned," Fed. R. Evid. 201(b).  Official notice may be taken of them even for the first time on review.  See Fed. R. Evid. 201(f); Pratt & Whitney Aircraft, Division of United Technologies Corp., 80 OSAHRC 38/A2, 8 BNA OSHC 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 the point, 649 F.2d 96 (2d Cir. 1981); Attorney General's Manual on the Administrative Procedure Act, 80 (1947).   Accordingly, we conditionally affirm 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 covered container(s) when not actually in use."  The citation alleged four separate violations of the standard.  The standard states that "[f]lammable liquids shall be kept in covered containers when not actually in use."

The judge found violations as to all four sub-items.  He rejected StanBest's contention that evidence of flammability was insufficient.  He relied instead on the testimony of the compliance officer, which relied on statements made to him by Dupree and Ashford, a StanBest employee.  StanBest characterizes Black's testimony regarding statements made by Dupree and Ashford as inadmissible hearsay.

This argument lacks merit. Dupree's and Ashford's statements are clearly admissions by a party opponent through his agent and servant and thus are 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 admissible in 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 cases cited therein.

Item 4(a) alleged that acetone was in an uncovered plastic jug.  The compliance officer observed the jug in the polishing area of the shop.  Black, the compliance officer, testified that Dupree identified the substance in the jug as acetone and that Black recognized it as acetone by its odor.  He identified acetone as a 1B flammable.  The reliability of Black's testimony that Dupree identified the substance as acetone is greatly enhanced by his independent recognition of the acetone by its smell.   We have previously found that acetone is a 1B flammable.  Accordingly, we conditionally affirm sub-item 4(a) of the citation.  See note 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 the shop.  Black characterized gel coat as "a 1B flammable liquid"; he testified 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 the cans contained a flammable liquid in violation of section 1910.106(e)(2)(iv)(a).  The compliance officer's testimony was unrebutted and the judge specifically found the compliance officer to be a credible witness on the subject. Commissioner Cleary, however, believes that the testimony of the compliance officer does not provide a sufficient basis on which to find a violation.  In his view, the evidence does not establish that the containers contained gel coat, but only that Black, from his experience, recognized similar containers in the shop as ones that generally contained gel coat.  This evidence, in Commissioner Cleary's view, is too uncertain.

Because Chairman Rowland would remand and does not reach the merits of the citation, the Commission members are divided on the disposition of this item.  They therefore agree to vacate the direction for review as to sub-item 4(b).  Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ¶ 24,634 (No. 77-3040, 1980). [[11/]]

Sub-item 4(c) involved three unlabeled containers of contaminated acetone that the compliance officer observed in front of one of the spray booths.  He stated that Dupree, StanBest's plant manager and a second employee, Ashford, told him that the cans contained acetone with some impurities, specifically gel coat.  The compliance officer testified that the acetone would retain its flammability even down to one per cent concentrations.  Inasmuch as the admission by Dupree establishes the presence of acetone and we have previously found that acetone is a flammable liquid, item 4(c) is conditionally affirmed.  See note 10 supra.

Item 4(d) alleged that two open drums of acetone were located near an air compressor.  Because the Secretary failed to introduce any evidence to 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 states in part that "[o]nly approved containers . . . shall be used." The compliance officer testified that the plastic jug was not an approved container because glass or plastic are permissible containers only if the flammable liquid would damage the safety can and the amount of the liquid is small.  The compliance officer testified that acetone would not damage a safety can, and that if acetone ignited, it would melt a plastic container.

The judge found a violation of the standard because the Secretary established that acetone, a combustible liquid, was not in an approved container. In its brief on review, StanBest argued that the Secretary did not establish that the plastic container used to store the acetone was not approved by organizations listed in section 1910.106(a)(35).

Commissioner Cottine would affirm this item because the jug, which has been found to have contained acetone, was not an approved container for a class 1B flammable liquid. Section 1910.106(d)(2)(i) states the general requirements of section 1910.106(d)(2) that only approved containers be used; the remainder of the standard sheds further light on what containers are approved for class 1B flammables. Read as a whole and construed together, see Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA 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-gallon plastic jug could not have been approved for acetone.  Section 1910.106(d)(2)(iii) requires that containers for flammable liquids be in accord with Table H-12, which prohibits the use of one-gallon plastic containers for class 1B flammable liquids.  StanBest's use of a one-gallon plastic jug to hold acetone would also not fall within the exception 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 by contact with metal or would excessively corrode a metal container. StanBest's storage of acetone in metal drums and the compliance officer's unrebutted testimony that acetone would not damage a metal safety can demonstrate that StanBest's one-gallon plastic jug would not fall within this exception.

Commissioner Cleary would affirm the item as de minimis.  The standard permits class 1B flammables to be held in quart-size plastic containers.  It also permits the use of one-gallon containers in some circumstances, but for reasons stated by Commissioner Cottine, this exception is inapplicable.  However, no evidence was educed showing the amount of the liquid in the container, and it could have been less than one quart.  Thus, the only violation shown relates to the size of the container, not the amount of liquid stored.

Inasmuch as the Commissioners are divided on the disposition of the item, 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 of section 1910.107, the spray finishing standard.  As a threshold matter, StanBest claims that its operations do not include spray finishing and that section 1910.107 therefore does not apply.  The disputed procedure involves the application, by air-driven spray gun, of a mixture of gel coat and methyl ethyl ketone peroxide (MEKP), an organic peroxide, to a mold.  After the mixture hardens, a similar coating--one including strands of cut fiberglass--is applied.  The procedure takes place in two spray booths, the gel coat booth, and the chopper spray booth.  In his decision, Judge Brady touched on the applicability issue very briefly.  He concluded that StanBest's "plant operations come within the purview of the standard cited," and that "[s]pray booths [were] used for spraying with flammable or combustible liquids . . . ."

On review, StanBest argues that in order to prove that section 1910.107 is applicable to its plant, the Secretary must demonstrate that (1) it conducted spray finishing in its plant, and that (2) dangerous quantities of flammable vapors were present.  StanBest argues that the Secretary failed to prove either element.  StanBest contends that read together, section 1910.94(c)(1)[[13/]] and section 1910.107(a)[[14/]] define the type of operation that constitutes spray finishing.  It claims that the two processes it uses, the "impacting" of gel onto a mold and the application of fiberglass to the mold, are not within this definition.  StanBest also claims that the compliance officer did not testify that dangerous quantities of flammable or combustible substances were present, or conduct any tests to determine the presence of dangerous vapors.  In StanBest's view, the compliance officer merely asserted that he observed chemicals and concluded that they presented hazards to employees.

StanBest has overlooked that section 1910.107 has a controlling scope provision.  Section 1910.107(n) states that the section applies to all operations that involve "flammable and combustible finishing materials when applied as a spray by compressed air, 'airless' or 'hydraulic atomization,' steam, electrostatic methods, or by any other means in continuous or intermittent processes." [[15/]]  There is little doubt that the finishing materials StanBest uses are applied "as a spray."  That StanBest's process may be correctly termed "impact placement" does not mean that it is not also spray finishing within the meaning of section 1910.107. StanBest's "impact placement" argument is therefore without merit.  Moreover, section 1910.107(m).[[16/]] is directed specifically at spraying operations where "organic peroxides [such as MEKP] and other dual component coatings" are used.  That it requires that such operations "be conducted in approved sprinklered spray booths meeting the requirements of [section 1910.107]" strongly suggests that StanBest's operation is covered by section 1910.107. [[17/]]

StanBest also claims that section 1910.107 does not apply to its operations unless "dangerous quantities of flammable vapors or mists, or combustible residues, dusts, or deposits are present due to the operation of spraying processes" within the meaning of section 1910.107(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 a definition of a single term, "spraying area," that is used in only some provisions of section 1910.107.  The Secretary is therefore not required to demonstrate the presence of "dangerous quantities of flammable vapors or mists, or combustible residues, dust, or deposits" if the cited standard does not specifically address "spraying areas".  See Fusibles Westinghouse de Puerto Rico v. OSHRC, 658 F.2d 21, 24 (1st Cir. 1981)

Of the standards cited here only sections 1910.107(c)(2) and 1910.107(g)(2) speak of "spraying areas." [[18/]]  Inasmuch as compliance officer Black testified that "combustible residues," specifically resin, acetone and MEKP residues, had accumulated on the walls and floor of both spray booths, the areas cited under those standards (the interior and vicinity of spray booths) were shown to be spraying areas under Ed Jackman Pontiac-Olds, Inc., 80 OSAHRC 26/D14, 8 BNA 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 at spray booths.  As we have said, it is not necessary to adduce evidence that these booths are also spraying areas.  Moreover, section 1910.107(m)(1) specifically requires that "[a]ll spraying operations involving the organic peroxides and other dual component coatings . . . be conducted in approved sprinklered spray booths meeting the requirements of this section [1910.107]."  This leaves no room for doubt.   Because StanBest uses MEKP, an organic peroxide, its spray booths must comply with section 1910.107.

Economic Feasibility

StanBest also contends that at least the items cited under section 1910.107 should be vacated because the Secretary did not demonstrate that compliance with section 1910.107 is both economically and technologically feasible.  Citing to Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 478 (D.C. Cir. 1974), StanBest maintains that standards are not designed to protect employees by putting their employers out of business.  Moreover, StanBest claims that compliance with the cited standards would force it out of business.  It contends 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 where feasibility 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 of proving 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 against a citation by demonstrating that compliance with a standard is impossible.  M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ¶ 23,330 (No. 15094, 1979).   However, a claim by an employer that compliance with a standard would be expensive or economically burdensome is not relevant to an employer's obligation to comply.   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 support its contention that the costs of abatement would drive it out of business. In fact, the issue was only raised for the first time in its post-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 not substantially constructed of steel, concrete, or masonry," but of celotex, which the compliance officer characterized as a combustible material.  He testified that a fire hazard existed in the booth because acetone and MEKP were running out of the impact placement gun onto the floor while the operator adjusted it.  The compliance officer stated that a mixture of acetone and MEKP would detonate if the temperature was raised "substantially."

In affirming this item, the judge credited the compliance officer's unrefuted testimony.  He found that although StanBest claimed that acetone was not present, MEKP, which is flammable, was present.

StanBest again maintains that the compliance officer was incompetent to testify about explosions.  It characterized his conclusions about the hazard associated with the booth's construction as unsubstantiated opinion.

Item 5 is affirmed.  The Secretary need not demonstrate the existence of a hazard in order to show noncompliance with the cited standard.  As we have said, a showing under section 1910.107(a)(2) need not be made under this "spray booth" standard, and section 1910.107(m)(1) specifically requires that the spray booth requirements be followed.  If the standards do not incorporate a requirement that a hazard be shown to exist, 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, 1979 CCH OSHD ¶ 23,935, p. 29,021 (No. 76-93, 1979); see also Modern Drop Forge 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 that the spray booth was not constructed of steel, concrete, masonry or aluminum 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 activated device(s)."  The compliance officer testified that he found no device to indicate the difference in air velocity on either side of the filter.  He testified that in the absence of such a device, it would be difficult to determine if the air flow had been reduced by a clogged filter.  He stated that the filter itself could also become clogged with combustible material, which could increase the possibility of fire.

The judge held that the compliance officer's uncontroverted testimony established that the standard was violated.

StanBest argues that the proof of a violation is "nonprobative and incomplete" because no tests were taken by the compliance officer.  Such tests are unnecessary.  The evidence establishes that StanBest's booth lacked 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 an automatic fire extinguishing system on its downstream and upstream sides.  According to the compliance officer, there was no automatic extinguishing system of any kind in the entire building.  The compliance officer stated that deposits could form and fires occur on the downstream side of the filters.

The judge relied on the compliance officer's uncontroverted testimony in affirming this item.  StanBest contended that the proof for this item "share[s] the lack of scientific fact and abundance of guesswork which characterizes so much of the evidence in this case."

Item 7 is affirmed.  The compliance officer's testimony establishes the absence 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 deflector or curtain. . . . installed at the upper outer edge of the [chopper spray] booth over the opening."  The compliance officer stated that the booth, which had a frontal area of 300 square feet, had no deflector of any type and a zero air flow.  The compliance officer stated that the deflector "deflects what air flow you have down to the floor . . . . [to] sweep away any flammable vapors . . . . " He testified that without a deflector, flammable vapors could accumulate inside the booth and possibly explode.

Item 8 is affirmed.  StanBest's general exception to the "lack of scientific fact and abundance of guesswork" is without merit.  The judge correctly relied on the compliance officer's uncontroverted testimony that StanBest had not installed deflectors or curtains at the opening of the 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 28 inches of the chopper spray booth.  The standards states in part that "[t]here shall be no . . . spark producing equipment . . . within 20 feet [of any spraying area], unless separated by a partition."  The compliance officer testified that the starter inside the fluorescent fixture "has a static discharge occasionally."   Again relying on the uncontroverted testimony of the compliance officer, the judge affirmed the item.

Item 10 is affirmed.  The compliance officer's testimony that the starter in a fluorescent light tube occasionally has a static discharge is unrebutted. We also note that the compliance officer's testimony is consistent 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 not apply.  Inasmuch as we have found previously that the 1910.107 standards do apply, and StanBest does not otherwise object, we affirm the judge's disposition 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 the chopper spray booth was hung on a nail on a post at the face of the spray booth."  StanBest did not object to the judge's affirmance of this item in its petition for discretionary review.  We therefore conclude that it is not before us on review.   See Commission Rule 92(c), 29 C.F.R. § 2200.92(c).  In any event, the judge's affirmance of the item is supported by the evidence.

Penalty

The Secretary proposed and the judge assessed a penalty of $25 for item 4.  The careless use of the flammable liquids by StanBest might call for a larger penalty.   However, in view of StanBest's small size, lack of history of previous violations, and its claims that it will be put in financial jeopardy by compliance, we conclude that $25 is an appropriate penalty.

Accordingly, the direction for review is vacated as to item 2 and sub-item 4(b).  Items 5, 6, 7, 8, 10, 11, 12, and 13 are affirmed. Item 3 and sub-items 4(a) and 4(c) are affirmed unless StanBest requests an opportunity to introduce evidence contrary to officially noticed facts within ten days of this decision's date of issuance.   Sub-item 4(d) is vacated.  A penalty of $25 is assessed.

SO ORDERED.

FOR THE COMMISSION

Ray H Darling, Jr.
Executive Secretary

DATED:  FEB 28 1983

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), 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 evidence in lieu of oral testimony if the matters therein contained are otherwise admissible and the parties agree to its admission."

[[2/]] Commissioner Cottine notes that, according to the record, at no time has StanBest sought to introduce the testimony of Dupree into evidence, having relied instead solely on the affidavit that the Commission has now considered.

[[3/]] In view of the Commission's conclusion that the inspection in this case was lawful, Commissioner Cottine notes that it is not necessary 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 in violation of the principles set forth in Marshall v. Barlow's, Inc., supra, and occurring prior to the decision in Barlow's, was not retroactively remediable.   See note 4 of dissenting opinion infra.  The Commission held unanimously in Carl M. Geupel Constr. Co., 82 OSAHRC 60/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 decision in Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360 (No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982).  However, Geupel involved a post-Barlow's inspection and the Meadows issue was not addressed in the differing rationales of the Members.

The conclusion of the majority in Geupel that the application of the civil retroactivity test of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), would not yield a different result than would application of the test of United States v. Johnson, 102 S.Ct. 2579 (1982), see note 1 of dissenting opinion infra, was directed to the retroactive application of the Sarasota holding regarding the scope of warrants, not the constitutional principles of Barlow's.  Although Commissioner Cottine objected to the majority's reliance on the criminal retroactivity test of Johnson, he concurred in the retroactivity holding of Geupel because Sarasota did not constitute a "clear break" with past precedent as that test has been applied in the civil context.   The Commission's Sarasota holding on the permissible scope of warrants was premised on controlling Supreme Court precedent.  However, the considerations that led to the retroactivity holding of Geupel do not necessarily yield the same result when the retroactivity holding of Chevron Oil.  Although the Supreme Court concluded in Barlow's that nonconsensual, warrantless OSHA inspections were not constitutionally authorized, inspections conducted prior to Barlow's were authorized by an express act of Congress and were arguably controlled by either of two separate lines of Supreme Court precedent.  Compare G.M.   Leasing Corp. v. United States, 429 U.S. 338 (1977), United States v. Biswell, 406 U.S. 311 (1972), and Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) with See v. City of Seattle, 387 U.S. 541 (1967) and Camara v. Municipal Court, 387 U.S. 523 (1967).  Indeed, subsequent to its decision in Barlow's, the Court applied the Colonnade-Biswell line of authority to permit warrantless inspections under a regulatory statute involving mine safety and health.   Donovan v. Dewey, 101 S.Ct. 2534 (1981).  Accordingly, Commissioner Cottine considers his dissenting colleague's suggestion that the applications of the civil and criminal retroactivity tests would yield the same result in all Fourth Amendment cases to be without legal foundation.

[[4/]] In its petition for review, StanBest argued that it is not engaged in business affecting interstate commerce because it does business only in Georgia.   Citing Anchorage Plastering Co., 75 OSAHRC 65/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 compliance officer's testimony regarding the origins of materials used at StanBest's plant does not constitute credible evidence of an effect on interstate commerce.  StanBest does not address this issue in its brief on review, which was submitted after counsel had been retained.  This indicates that it has abandoned the issue.  S&S Diving Co., 80 OSAHRC 85/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 the judge's conclusion.  StanBest's president testified that he traveled out of state to promote the company's products; the compliance officer's testimony that some of the components of StanBest's products were from out of state was not rebutted.

Both before the judge and in its petition for review, StanBest also argued that one of the compliance officers was not a credible witness because of his interest in starting a business similar to that of StanBest.  StanBest did not address the issue in its brief on review and we again conclude that it has been abandoned.  Moreover, we remain unconvinced 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 industrial plants where:

(a) the use of flammable or combustible liquids is incidental to the principal business, or
(b) Where flammable or combustible liquids are handled or used only in unit physical operations such as mixing, drying, evaporating, filtering, distillation, and similar operations which do not involve chemical reaction.  This paragraph shall not apply to chemical plants, refineries, or distilleries.
(ii) Exceptions.  Where portions of such plants involve chemical reactions such as oxidation, reduction, halogenation, hydrogenation, alkylation, polymerization, and other chemical processes, those portions of 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 those portions of an industrial plant where the use and handling of flammable or 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 in tanks 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 inside storage room or storage cabinet in a building or in any one fire area of a 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 judge improperly restricted its cross-examination of compliance officer Black regarding polymerization.  StanBest acknowledges the general rule in Federal Rule of Evidence 611(b) that cross-examination "should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness."  It argues that its cross-examination of Black was appropriate because it dealt with matters raised on direct examination and with Black's credibility.

Inasmuch as StanBest did not raise this issue in its petition for review or before the judge, it would ordinarily not be on review. Commission Rules 92(c)and (d).   Moreover, StanBest's argument lacks merit.  Black's testimony did not at all concern polymerization. As to StanBest's claim that the questions posed to Black were intended to attack his credibility, we note that StanBest's president did not then make clear to the judge his intent to attack the compliance officer's credibility.  The judge inquired into the purpose of the cross-examination and upon being told it was to establish that StanBest was excepted from the requirements of the cited standard, he carefully explained that StanBest could fully raise that issue in its own case.   StanBest has not explained why it could not have proven its exception on its own.   Although Federal Rule 611(b) allows, in the exercise of discretion, "inquiry into additional matters as if on direct examination," 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 100º F.  See 49 C.F.R. §§ 172.419, 171.8 and 173.115(a)(1).  We may take official notice of the significance of the DOT tags.  See 44 U.S.C. § 1507 ("[t]he contents of the Federal Register shall be judicially noticed . . . .") (The Code of Federal Regulations is a special edition of the Federal Register.  44 U.S.C. § 1510.)

[[8/]] § 1910.106 Flammable and combustible liquids.
(a) Definitions.
(18) "Combustible liquid" means any liquid having a flashpoint at or above 100ºF . . . . Combustible liquids shall be divided into two classes . . . :
(i) "Class II liquids:  shall include those with flashpoints at or above 100ºF. . . and below 140ºF. . . . [exception omitted].
(ii) "Class III liquids" shall include those with flashpoints at or above 140ºF. . . .
***
(19) "Flammable liquid" means any liquid having a flashpoint below 100ºF. . . . [exception omitted].  Flammable liquids shall be known as Class I liquids.  Class I liquids are divided into three classes as follows:

(i) Class IA shall include liquids having flashpoints below 73ºF . . . . and having a boiling point below 100ºF. . . .
(ii) Class IB shall include liquids having flashpoints below 73ºF . . . and having a boiling point at or above 100ºF . . . .
(iii) Class IC shall include liquids having flashpoints at or above 73ºF . . . and below 100ºF. . . .

[[9/]] The statement by the Secretary's counsel that Black was incompetent to testify to the degree of flammability, when read in context, merely indicates that, although Black knew that acetone and resin were 1B flammables, he did not know their exact flashpoints without 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 the record is required to allow a party the opportunity to show the contrary.  We affirm those items of this decision that rely on officially noticed facts unless StanBest requests an opportunity within ten days to show contrary evidence.

[[11/]] Commissioner Cottine agrees to vacate the direction for review as to this item because the directing member joins in this disposition and all other criteria for this action have been satisfied.  See Lone Star 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, 534 F.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.  This paragraph shall apply only to the storage of  flammable or combustible liquids in drums or other containers (including flammable aerosols) not exceeding 60 gallons individual capacity and those portable tanks not exceeding 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 and containing products authorized by Chapter 1, title 49 of the Code of Federal Regulations (regulations issued by the Hazardous Materials Regulations Board, Department of Transportation), shall be deemed to be acceptable.
***
(iii) Size.  Flammable and combustible liquid containers shall be in accordance with Table H-12, except that glass or plastic [emphasis added] containers of no more than 1-gallon capacity may be used for a Class 1A or 1B flammable liquid if:

(a)(1) Such liquid either would be rendered unfit for its intended use by contact with metal or would excessively corrode a metal container so as to create a leakage hazard; and
(2) The user's process either would require more than 1 pint of a Class 1A liquid or more than 1 quart of a Class 1B liquid of a single assay lot to be used at one time, or would require the maintenance of an analytical standard liquid of a quality which is not met by the specified standards of liquids available, and the quantity of the analytical standard liquid required to be used in any one control process exceeds one-sixteenth the capacity of the container allowed under Table H-12 for the class of liquid; or

(b) The containers are intended for direct export outside the United States.

Table H-12 Maximum Allowable Size of Containers and Portable Tanks

(Note in table omitted.)  Section 1910.106(a)(35) states:

Approved unless otherwise indicated, [means] approved, or listed by at least 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 this paragraph [(c)]--(i) Spray-finishing operations.  Spray-finishing operations are employment of methods wherein organic or inorganic materials are utilized in dispersed form for deposit on surfaces to be coated, treated, or cleaned.  Such methods of deposit may involve either automatic, manual, or electrostatic deposition but do not include metal spraying or metallizing, dipping, flow coating, roller coating, tumbling, centrifuging, or spray washing and degreasing as conducted in self-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 flammable vapors or mists, or combustible residues, dust, or deposits are present due 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 finishing materials when applied as a spray by compressed air, "airless" or "hydraulic atomization," steam, electrostatic methods, or by any other means in continuous or intermittent processes. The section also covers the application of combustible powders by powder spray guns, electrostatic power spray guns, fluidized beds, or electrostatic fluidized beds.  This section does not apply to cut-door spray application of buildings, tanks or other similar structures, nor to small 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.  All spraying operations involving the use of organic peroxides and other dual component coatings shall be conducted in approved sprinklered spray booths meeting the requirements of this section.

[[17/]] The reasons for the special treatment of organic peroxides are explained in the appendix to the source standard for section 1910.107.  See paragraph A.900, of the Appendix to National Fire Protection Association (NFPA) No. 33--1969, Standard for Spray Finishing Using Flammable and Combustible Materials, reprinted in 3 NFPA, Guide to OSHA Fire 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 producing equipment in any spraying area nor within 20 feet thereof, unless separated by a partition.

(g) Operations and maintenance--
(2) Cleaning.  All spraying areas shall be kept as free from the accumulation of deposits of combustible residues as practical, with cleaning conducted daily if necessary.   Scrapers, spuds, or other such tools 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 substantially constructed of steel, securely and rigidly supported, or of concrete or masonry except that aluminum or other substantial noncombustible material may be used for intermittent or low volume spraying.  Spray booths 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 filter rolls, if installed, shall conform to the following:
(i) The spraying operations except electrostatic spraying operations shall be so designed, installed and maintained that the average air velocity over the open face of the booth (or booth cross section during spraying operations) shall be not less than 100 linear feet per minute. . . . Visible gauges or audible alarm or pressure activated devices shall be installed to indicate or insure that the required air velocity is maintained.

[[21/]] Section 1910.107(b)(5)(iv) states:
(5) Dry type overspray collectors--(exhaust air filter).  In conventional dry type spray booths, overspray dry filters or filter rolls, if installed, shall conform to the following:
***
(iv) Space within the spray booth on the downstream and upstream sides of 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 9 square feet shall have a metal deflector or curtain not less than 2 1/2 inches 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 of any spraying area, and not separated therefrom by a partition, shall be totally enclosed to prevent the falling of hot particles and shall be protected 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 sanitary location.