WESTINGHOUSE ELECTRIC CORPORATION

OSHRC Docket No. 13955

Occupational Safety and Health Review Commission

May 2, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor

Ronald G. Ingham, for the employer

Mr. W. T. Buboc, General Manager and Mr. Paul W. Browning, Westinghouse Electric Corporation, for the employees

Mr. J. D. Lewis, President IUE, Local 917, for the employees

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

A decision of Administrative Law Judge Sidney J. Goldstein is before the full Commission for review n1 pursuant to section 12(j) of the Occupational Safety and Health Act of 1970. n2 In his decision, Judge Goldstein vacated a citation issued to respondent alleging a nonserious violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1910.94(c)(2).

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n1 I granted the petition for review filed by the affected employees that took exception to the vacation of the 1910.94(c)(2) violation. Former Commissioner Moran also directed review "for error." On review the parties addressed issues related only to the 1910.94(c)(2) violation. The Commission has declined to review issues raised by a Commissioner's sua sponte direction for review when neither party takes issue with the judge's disposition, and in the absence of any compelling public interest. See, e.g. Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976); Water Works Installation Corp., 76 OSAHRC 61 B/8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976). We do not find any issues of compelling public interest, and therefore find only the alleged violation of 1910.94(c)(2) to be before us on review.

n2 29 CFR 651 et seq., hereafter "the Act".

[*2]

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At its plant in Muncie, Indiana, respondent is engaged in the manufacture of large power transformers. As a regular part of this process, the transformers are spray painted before shipment. In calendar year 1975 about 147 transformer units were shipped. The painting is performed with a portable electrostatic spraying unit and it takes approximately one hour to paint each transformer. n3 The parties do not dispute that this spraying operation is not conducted in a spray booth or spray room. Rather, their dispute narrows to the question of whether the spraying operations are required to be so confined.

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n3 In its brief respondent suggests that because a portable electrostatic spraying unit is used its process falls within the exemption provided in 1910.94(c)(8) (see text, infra). The exemption applies only to "small portable spraying apparatus not used repeatedly in the same location". Clearly, this exemption does not apply to respondent's spray painting operations.

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In the Secretary's view, the issue is easily resolved: The cited standard, 29 CFR 1910.94(c)(2), provides that "[s]pray booths or spray rooms are to be used to enclose or confine all [spray finishing] operations". Respondent's spray finishing operation was not confined or enclosed. Therefore, respondent failed to comply with the standard. Respondent submits that the resolution of the issue is not this straightforward. Respondent argues that spraying operations need not be confined or enclosed unless it is first established that dangerous or hazardous quantities of vapors or mists result from the rpraying operation. According to respondent, its interpretation necessarily follows from reading 1910.94(c)(2) in conjunction with the standard at 29 CFR 1910.107.

On the basis of the Commission's decision in Bethlehem Fabricators, Inc., 76 OSAHRC 62/C2, 4 BNA OSHC 1289, 1976-77 CCH OSHD P20,782 (No. 7176, 1976), the judge concluded that respondent's argument is correct. In Bethlehem Fabricators, a divided Commission held that, when spray finishing operations involve the use of combustible materials, 1910.94(c) must be construed [*4] together with 1910.107 and that, as a result, the Secretary is required to prove that dangerous quantities of emissions are produced by the spray painting operation before the duty to enclose or confine the operation arises under 1910.94(c)(2). The judge further concluded that because the record in the present case "discloses that there were no hazards or dangers to the respondent's employees as a consequence of the spray painting process, and since the spraying operation did not result in dangerous quantities of overspraying", the citation must be vacated.

Upon further review of the questions involved, we conclude that the decision in Bethlehem Fabricators erroneously interpreted the requirements of 1910.94(c)(2) and must be overruled. In order to explain fully the basis for our decision it is essential that the relevant standards be set forth in detail.

The standard that the Secretary alleges is applicable, and with which respondent allegedly failed to comply, is 1910.94(c)(2). This standard appears in Subpart G of 29 CFR Part 1910. Subpart G is entitled, "Occupational Health and Environmental Control". Within this subpart, 1910.94 sets forth requirements for [*5] "ventilation". Specifically, 1910.94(c) addresses ventilation requirements for "spray finishing operations". The paragraphs of 1910.94(c) relevant to our discussion are quoted below.

1910.94 Ventilation.

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(c) Spray finishing operations -- (1) Definitions applicable to this paragraph -- (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.

(ii) Spray booth. Spray booths are defined and described in 1910.107(a). (See sections 103, 104, and 105 of the Standard for Spray Finishing Using Flammable and Combustible Materials, NFPA No. 33-1969).

(iii) Spray room. A spray room is a room in which spray-finishing operations not conducted in a spray booth are performed separately from other [*6] areas.

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(2) Location and application. Spray booths or spray rooms are to be used to enclose or confine all operations. Spray-finishing operations shall be located as provided in sections 201 through 206 of . . . NFPA No. 33-1969.

(3) Design and construction of spray booths. (i) Spray booths shall be designed and constructed in accordance with 1910.107(b)(1)-(4) and (6)-(10) (see sections 301-304 and 306-310 of . . . NFPA No. 33-1969), for general construction specifications. For a more detailed discussion of fundamentals relating to this subject, see ANSI Z9.2-1960.

(a) Lights, motors, electrical equipment, and other sources of ignition shall conform to the requirements of 1910.107(b)(10) and (c). (See section 310 and chapter 4 of . . . NEPA No. 33-1969).

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(iii) Baffles, distribution plates, and dry-type overspray collectors shall conform to the requirements of 1910.107(b)(4) and (5). (See sections 304 and 305 of . . . NFPA No. 33-1969).

(a) Overspray filters shall be installed and maintained in accordance with the requirements of 1910.107(b)(5). (See section 305 of . . . NFPA No. 33-1969).

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(5) Ventilation. (i) Ventilation shall be [*7] provided in accordance with provisions of 1910.107(d) (see chapter 5 of . . . NFPA No. 33-1969). . . .

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(8) Scope. Spray booths or spray rooms are to be used to enclose or confine all spray finishing operations covered by this paragraph (c). This paragraph does not apply to the spraying of the exteriors of buildings, fixed tanks, or similar structures, nor to small portable spraying apparatus not used repeatedly in the same location.

As a plain reading of these paragraphs reveals, 1910.94(c)(2) by its terms requires that all spray finishing operations be enclosed or confined by spray rooms or spray booths, with the exception of the specific types of spraying operations specified in 1910.94(c)(8), none of which include the type of spraying operation herein at issue. Apart from the requirement that the materials sprayed be organic or inorganic, 1910.94(c) contains no further limitation regarding the nature or amount of material being sprayed. On its face, 1910.94(c) is not limited in applicability to operations using flammable or combustible material; n4 nor does it provide for permissible levels of vapor or particulate concentrations before the requirement [*8] to enclose or confine the spraying operation arises. In sum, under the literal terms of 1910.94(c)(2), respondent's spray finishing operation is required to be enclosed or confined.

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n4 For this reason, and in view of our decision in this case, respondent's assertion that a finding that the paint used in its operations is combustible can not rest solely on hearsay evidence need not be addressed.

We also reject respondent's argument that the citation is unfair because respondent installed its electrostatic spray painting equipment after being informed by a compliance officer that it would comply with the Act. The Commission is not bound by the opinion of the Secretary or the compliance officer concerning the interpretation of a standard. Del-Cook Lumber Co., 78 OSAHRC 14/A2, 6 BNA OSHC 1362, 1978 CCH OSHD P22,544 (No. 16093, 1978); Holman Erection Co., Inc., 77 OSAHRC 196/A2, 5 BNA OSHC 2078, 1977-78 CCH OSHD P22,318 (No. 13529, 1977).

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Therefore, the inquiry becomes whether another standard in some manner [*9] qualifies the mandatory enclosure requirement of 1910.94(c)(2). Respondent argues, and the Commission held in Bethlehem Fabricators, that 1910.107 serves this purpose. Again, it is essential that the relevant provisions of 1910.107 be set forth.

Section 1910.107 appears in Subpart H of 29 CFR Part 1910 which is entitled "Hazardous Materials". The use, storage, and handling of various materials is addressed in this subpart, including: compressed gases, acetylene, hydrogen, oxygen, nitrous oxide, flammable and combustible liquids, explosives and blasting agents, liquid petroleum gases, and anhydrous ammonia. Section 1910.107 addresses "[s]pray finishing using flammable and combustible materials", and is structured into the following relevant subsections and paragraphs.

1910.107 Spray finishing using flammable and combustible materials.

(a) Definitions applicable to this section --

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(2) Spraying area. Any area in which dangerous quantities of flammable vapors or mists or combustible residues, dusts, or deposits are present due to the operation of spraying processes.

(3) Spray booth. A power-ventilated structure provided to enclose or accommodate [*10] a spraying operation to confine and limit the escape of spray, vapor, and residue, and to safely conduct or direct them to an exhaust system.

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(b) Spray booths -- (1) Construction.

(2) Interiors.

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(3) Floors.

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(4) Distribution or baffle plates.

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(5) Dry type overspray collectors.

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(6) Frontal area.

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(7) Conveyors.

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(8) Separation of operations.

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(9) Cleaning.

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(10) Illumination.

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(c) Electrical and other sources of ignition --

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(d) Ventilation --

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(i) Electrostatic handspraying equipment --

(9) Ventilation. The spraying operation shall take place within a spray area which is adequately ventilated to remove solvent vapors released from the operation.

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(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 does not apply to outdoor spray application of buildings, tanks, or other similar structures, nor to small portable [*11] spraying apparatus not used repeatedly in the same location.

In the lead opinion in Bethlehem Fabricators the "numerous cross-references" to 1910.107 contained in 1910.94(c) were noted. Specifically, the reference in 1910.94(c)(1)(ii) to the definition and description of "spray booths" contained in 1910.107(a), and the reference in 1910.94(c)(3)(i) to the design and construction requirements for spray booths stated in 1910.107(b)(1)-(4) and (6)-(10), were cited as examples of such cross-references. n5 The lead opinion then concluded that "[i]n view of the foregoing [cross-references], we find that 1910.94(c) and 1910.107 must be construed together when spray finishing operations involve the use of combustible materials", and, therefore, that the Secretary must prove that "dangerous quantities" of emissions are produced before a failure to comply with 1910.94(c)(2) is established.

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n5 The cross-references cited in the lead opinion in Bethlehem are not the only cross-references to 1910.107 contained in 1910.94(c). As noted in the concurring opinion in Bethlehem, 1910.94(c)(5)(1) refers to the ventilation requirements stated in 1910.107(c). Further cross-references to 1910.107 are contained in the following paragraphs of 1910.94(c): (3)(i)(a), (3)(iii), and (3)(iii)(a). It should be noted, however, that the number of provisions of 1910.94(c) that make no reference to 1910.107 far outweigh the number of provisions that make such a reference.

[*12]

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As stated in the dissenting opinion in Bethlehem Fabricators, however, close scrutiny of the cross-references contained in 1910.94 reveals the fallacy of the lead opinion's conclusion that the cross-references require that 1910.94(c) and 1910.107 be read together in their entirety. Furthermore, an examination of the complete texts of these standards, and the sources from which they were derived, reveals that they can not be so read.

The first cross-reference appears in 1910.94(c)(1)(ii) which states that "[s]pray booths are defined and described in 1910.107(a)". The cross-references contained in 1910.94(c)(3) provide: "Spray booths shall be designed and constructed in accordance with 1910.107(b)(1)-(4) and (6)-(10)" (.94(c)(3)(i); "[l]ights, motors, electrical equipment, and other sources of ignition shall conform to the requirements of 1910.107(b)(10) and (c)" (.94(c)(3)(i)(a)); "[b]affles, distribution plates, and dry-type overspray collectors shall conform to the requirements of 1910.107(b)(4) and (5)" (.94(c)(3)(iii)); and, "[o]verspray filters shall be installed and maintained [*13] in accordance with the requirements of 1910.107(b)(5)" (.94(c)(3)(iii)(a)). The final cross-reference appears in 1910.94(c)(5) which states: "Ventilation shall be provided in accordance with provisions of 1910.107(d). . . ."

None of these cross-references, whether read together or in isolation, compel the conclusion reached in Bethlehem Fabricators, i.e., that 1910.94(c) and 1910.107 must be read together in their entirety. Rather, the express terms of the cross-references control the manner in which they must be read: they simply are incorporations into 1910.94(c) of the definition of spray booths and certain design and mechanical specifications for spray booths as provided in 1910.107. As such, the cross-references in no way affect other provisions of 1910.94(c) such as the requirement in .94(c)(2) that all spraying operations be enclosed or confined. n6 The validity of this conclusion is affirmed by examining the background of the adoption of 1910.94(c)(2) and 1910.107 as standards under the Act.

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n6 Moreover, the source of the "dangerous quantities" requirement adopted by the Bethlehem majority is 1910.107(a)(2), which is the definition of "spraying area." The cited standard, 1910.94(c)(2), neither refers to 1910.107(a)(2) nor uses the term "spraying area."

[*14]

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Sections 1910.94(c) and 1910.107 were adopted as occupational safety and health standards under section 6(a) of the Act. n7 36 Fed. Reg. 10466 (1971). Although both standards were derived from existing national consensus standards, their sources are different. The source standard for 1910.94(c) is American National Standards Institute (ANSI) Standard Z9.3-1964 (Reaffimed 1971), n8 Design, Construction, and Ventilation of Spray Finishing Operations. The source standard for 1910.107 is National Fire Protection Association (NFPA) Standard No. 33-1969, Spray Finishing Using Flammable and Combustible Liquids. n9

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n7 Section 6(a) of the Act provides:

Without regard to chapter 5 of title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.

n8 29 CFR 1910.99 states that the source standard for 1910.94(c) is ANSI Standard Z9.3-1970. It appears, however, that the date given may be a typographical error. ANSI Standard Z9.3-1964 was reaffirmed by ANSI in 1971. So far as we can determine, Z9.3-1964 was the ANSI standard effective in 1970.

n9 29 CFR 1910.99.

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In drafting ANSI Standard Z9.3, the ANSI subcommittee had before them an earlier version of NFPA Standard No. 33-1969. In fact, NFPA Standard No. 33, May 1963, was attached to ANSI Standard Z9.3 as Appendix A. Where provisions of the NFPA Standard were viewed by the ANSI subcommittee to be consistent with their conclusions regarding an appropriate spray finishing standard, such provisions were incorporated into the ANSI Standard. In this regard, sections 2.2, 4.1, 4.1.1, 4.3, 4.3.2, and 6.1 of ANSI Standard Z9.3 incorporated by reference certain sections of NFPA Standard No. 33, May 1963. These sections of ANSI Standard Z9.3 correspond to the previously noted sections of 1910.94(c) which refer to 1910.107 for the definition of and certain design and mechanical specifications for spray booths.

Except for these specific incorporations by reference, however, the ANSI Standard did not adopt further provisions of the NFPA Standard. Rather, the ANSI Standard specified requirements which ANSI determined would best effectuate the purposes of its standard, regardless of whether comparable provisions [*16] of the NFPA Standard differed. n10 In the present case, one such difference between the standards is of controlling importance.

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n10 See, e.g., ANSI Standard Z9.3-1964, Appendix A, n.1. Differences in the requirements of the ANSI and NFPA standards on spray finishing operations can be attributed to the basic difference between the purposes which they are intended to serve. The scope provision of ANSI Standard Z9.3 provides:

This standard is intended to protect the health of personnel from injurious effects of contact with gases, vapors, mists, dusts, or solvents used in, created, released, or disseminated by spray finishing operations. The NFPA Standard for Spray Finishing Using Flammable Materials, No. 33, May 1963 provides rules relating to the protection of personnel and property from the hazards of fire. . . .

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Section 3 of ANSI Standard Z9.3 provides:

Spray booths or spray rooms are to be used to enclose or confine all spraying operations as covered by this standard (emphasis added).

In comparison, [*17] sections 205 and 206 of NFPA Standard No. 33, May 1963, provided:

Rooms containing spray finishing operations should preferably be separated from other occupancies by tight-fitting partitions. . . . (emphasis added).

Finishing operations within the scope of this Standard should be confined to properly constructed spray booths (emphasis added). n11

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n11 Sections 201 and 205 of NFPA Standard No. 33-1969 retained the advisory language regarding the enclosure or confinement of spraying operations.

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The difference in the ANSI and NFPA Standards regarding enclosure or confinement of spray finishing operations, i.e., mandatory versus advisory, is clear on the face of the above-quoted provisions. Therefore, the unambiguous language of section 3 of ANSI Standard Z9.3 must be deemed to express the intent of its drafters to require that all spray finishing operations be enclosed or confined. n12 Compare United States Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1977-78 CCH OSHD P21,795 (Nos. 10825 [*18] & 10849, 1977). In adopting the language of section 3 of the ANSI Standard in 1910.94(c)(2), the Secretary did not evince an intent to accord a different meaning to the terms of the standard. In fact, the interpretation of the standard proffered by the Secretary is that the standard must be given its clear meaning and that 1910.94(c)(2) requires that all spray finishing operations within its scope be enclosed or confined by spray booths or spray rooms without regard to whether "dangerous quantities" of emissions are present. n13 In view of the foregoing, we must agree with the Secretary. Cf. Borg-Warner Corp., 78 OSAHRC 18/A2, 6 BNA OSHC 1393, 1978 CCH OSHD P22,555 (No. 10757, 1978). The room in which the spray painting was done was approximately 200 feet long X 80 feet wide X 100 feet high, and there was no physical separation of the spray finishing room from other production activities. Such activities took place as close as five feet from the spray finishing. Therefore, since respondent's spray finishing operation was not enclosed or confined by a spray booth or spray room, n14 a failure to comply with 1910.94(c)(2) is established. n15

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n12 In fact, in adopting NFPA Standard No. 33-1969 in 1910.107, the Secretary did not adopt the sections advising the use of spray rooms or spray booths. See n.9, supra. As a result, there is no provision in 1910.107 that requires that the spray booths or spray rooms therein described be used. Rather, the requirement of 1910.107 is that areas in which spraying operations using flammable and combustible materials take place be adequately ventilated. Thus, 1910.94(c)(2)'s requirement that spraying operations be enclosed or confined is not inconsistent with the requirements of 1910.107. To the contrary, as so read, the standards are consistent in requiring that all spray finishing operations be enclosed or confined and adequately ventilated.

In this regard, we also note that the reasoning in Bethlehem Fabricators leads to the anomalous result that spraying operations using flammable or combustible materials must be confined only if dangerous quantities of emissions are present, whereas spraying operations that do not involve the use of flammable or combustible materials, and therefore do not require reference to 1910.107, are required to be confined regardless of the quantities of emissions present. Our construction of the standards in the present case avoids this anomaly.

n13 The purpose of the Act is to prevent illness and injury. In order to achieve this purpose, the Secretary can require that prophylactic measures be taken in order to eliminate the possibility that a potential hazardous condition will arise. See, e.g., Marshall v. Western Electric, Inc., 565 F.2d 240 (2d Cir. 1977). In 1910.94(c)(2), the Secretary has determined that spray finishing operations within its scope pose potential hazards to the health and safety of employees and that the hazards can be prevented by enclosing, confining, and ventilating the spraying operations. Contrary to assertions in respondent's brief, the requirements of the standard are in no way inconsistent with the purposes of the Act. Furthermore, it is not the function of the Commission to review the wisdom of a standard adopted by the Secretary. Budd Co., 74 OSAHRC 12/A2, 1 BNA OSHC 1548, 1973-74 CCH OSHD P17,387 (Nos. 199 & 215, 1974), aff'd, 513 F.2d 201 (3d Cir. 1975).

n14 A spray room is a room where spray painting is conducted with adequate physical separation from other areas. See 1910.94(c)(1)(iii). We note that the requirement of 1910.107(b)(8), that spray booths, which are physically enclosed structures made of steel, concrete, masonry, or the equivalent, be removed at least 3 feet from other operations does not indicate that spray rooms may be separated from other areas by as little as 3 feet.

n15 If respondent believes that other means are available by which its employees can be afforded an equal degree of protection, respondent could seek a variance from the requirements of the standard from the Secretary under section 6(d) of the Act.

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Accordingly, the judge's decision vacating the citation issued to respondent is reversed and the citation is affirmed. The Secretary proposed that no penalty be assessed and we agree that none is appropriate.

It is so Ordered.

DISSENTBY: BARNAKO

DISSENT:

BARNAKO, Commissioner, Dissenting:

I dissent from the majority opinion. In Bethlehem Fabricators, Inc., 76 OSAHRC 62/C2, 4 BNA OSHC 1289, 1976-77 CCH OSHD P20,782 (No. 7176, 1976), I concluded that 29 C.F.R. 1910.94(c) and 1910.107 must be construed together and that Complainant must prove that dangerous quantities of emissions were produced by Respondent's spray painting activities in order to establish a violation of 29 C.F.R. 1910.94(c)(2). Although I agree that the citation was properly vacated in that case, I would not adhere to the rationale set forth in that decision. The Secretary has asked that the Commission reconsider Bethlehem Fabricators, and after careful consideration I agree with the majority that the Secretary need not establish that dangerous quantities of emissions are produced by spray finishing operations before the requirement to [*21] have a spray booth or spray room pursuant to 29 C.F.R. 1910.94(c)(2) arises. However, I do not agree with the majority that 29 C.F.R. 1910.94(c) and 1910.107 are directed to entirely different hazards and different working conditions and that the existence of hazards is totally irrelevant in determining whether 29 C.F.R. 1910.94(c)(2) has been violated. In my view in order to establish a violation of 29 C.F.R. 1910.94(c)(2), the Secretary must show precisely in what respect Respondent's spray-painting operation is deficient.

I

The majority conclude that 1910.94(c) and 1910.107 are addressed entirely to different hazards and different working conditions in that the former standard deals with the use of spray booths or rooms during all spray finishing operations whereas the latter standard addresses ventilation requirements for those operations, otherwise governed by 1910.94(c), which employ flammable or combustible materials. In my view, however, the two standards cannot be so neatly divided.

The fact that 1910.94(c) contains numerous cross references to 1910.107 indicates that the standards are not so neatly divided as the majority conclude. n1 Moreover, it [*22] is obvious that the two standards are not only directed toward different hazards but similar aspects of the same hazards. In this respect, the majority appear to conclude that only 1910.107 is directed toward fire hazards. However, numerous provisions in 1910.94(c) are also directed toward fire hazards. Such provisions appear in 1910.94(c)(3)(i)(b) and 1910.94(c)(4)(i) and (ii), which require noncombustible materials and fire doors and shutters.

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n1 For example, specification, installation, and maintenance requirements for baffles, distribution plates, and overspray collectors, contained in 1910.107(b)(4) and (5), have been incorporated at 1910.94(c)(3)(iii) and (iii)(a). The referenced provisions of 1910.107 deal with such matters as the noncombustibility of distribution or baffle plates and their accessibility for cleaning as well as the air velocity to be maintained when overspray filters are used, when filters are to be discarded and how discarded filters are to be treated, the extent to which filters must be able to resist combustion and prevent spontaneous ignition, the need to provide automatic sprinklers, and circumstances under which filters are not permitted where there is a high probability of spontaneous ignition.

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II

After noting that 1910.94(c)(2) requires that all spray finishing operations within its scope be enclosed or confined by spray booths or spray rooms without regard to whether "dangerous quantities" of emissions are present, the majority conclude that Respondent's spray finishing operation was not enclosed by a spray booth or spray room and therefore affirm the citation. 2 I disagree with their conclusion that a violation of the cited standard has been established.

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n2 In the majority's view, the parties agree that Respondent's operation was not confined to a spray booth or enclosed in a spray room They do not, however, point to any part of the record in support of their conclusion.

Respondent moved for dismissal at the close of the Secretary's case on the ground that proof of a violation of the cited standard requires proof of the existence of a hazard. It relied in part on the judge's decision in Bethlehem Fabricators Inc., supra, which the Commission subsequently affirmed. In its briefs both before the judge and on review Respondent characterized the issue as whether it violated the Act and the cited standard "by conducting spray painting outside a spray booth or room when there was a positive showing that levels of solvent vapor and/or particulate matter extent in the work environment were not hazardous and did not even exceed the allowable limits set forth in 29 C.F.R. 1910.1000." Obviously these statements are counsel's theory of the case rather than stipulations or concessions of fact, and no such stipulations or concessions appear anywhere else in the record. I do not believe therefore that Respondent has stipulated that it was not using a spray booth or spray room.

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To determine whether a spray booth or room was not being used, one must look first to the definition of such structures and then to the design and mechanical specifications for such structures contained in 1910.94(c) and 1910.107. In other words, an employer is not in violation of 1910.94(c)(2) unless the record demonstrates that he has failed to comply with other provisions that set forth the requirements and specifications for a spray booth or spray room.

Since the record shows that Respondent failed to provide power ventilation which is a definitional requirement of a spray booth, n3 I agree with the majority that Respondent was not using a spray booth. I do not agree with my colleagues, however, that Respondent was not using a spray room. The definition of the latter term simply provides that a spray room "is a room in which spray-finishing operations not conducted in a spray booth are performed separately from other areas." 29 C.F.R. 1910.94(c)(iii).

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n3 29 C.F.R. 1910.107(a)(3), incorporated by reference at 29 C.F.R. 1910.94(c)(ii), provides:

Spray booth. A power-ventilated structure provided to enclose or accomodate a spraying operation to confine and limit the escape of spray, vapor, and residue, and to safely conduct them to an exhaust system.

[*25]

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The Secretary presented opinion testimony by the inspector and an employee that the spray finishing operation in issue was not isolated from the areas where other work was being performed. The employee testified that at a minimum employees work 5 feet from the spraying operation and most frequently were within 10 feet of the spraying operation. The definition of a spray room does not state whether or not "separation" requires a certain minimum distance and the Secretary offered no evidence or argument from which it can be concluded that "performed separately from" does or does not contemplate any particular proximity. In such circumstances I would conclude that the Secretary failed to establish that Respondent's operations were not performed separately from other areas. n4

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n4 29 C.F.R. 1910.107(b)(8) requires that spray booths be separated from other operations by not less than 3 feet. If this standard were considered as a guide for spray rooms, Respondent's spraying operations would be a sufficient distance from other activities.

[*26]

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Since Respondent was not in violation of the definitional requirement for a spray room the only other manner in which a violation could be established is if Respondent was in violation of any of the design or mechanical specifications for a spray room.

The Secretary's primary concern was the incidence of overspray and the exposure of employees to vapors. When asked how Respondent could comply with the standard, the inspector testified that an air flow of 100 feet per minute (fpm) across the breathing zone of the operator together with exhaust ventilation would be required. However, the only evidence offered by the Secretary to support the inspector's conclusion was, as characterized by the Secretary' counsel, a "crude" test to determine the amount of overspray. Pursuant to this test, cardboard and metal tags were placed on the floor between 10 and 30 feet from a transformer during painting; visual observation of the amount of discoloration on the tags was intended to indicate the degree of overspray. n5

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n5 Respondent took similar tests but used filter papers weighed both before and after painting to determine by weight the amount of particulate matter deposited during painting in units of milligrams per square meter. Respondent further measured both the concentration of airborne particulate matter and the concentration of vapors of the major components of the paint solvents toluene, ethyl-benzene, and xylene. The measurements which were taken between 10 and 30 feet from the transformer and in a painter's breathing zone, were within the limits prescribed in 29 C.F.R. 1910.1000, which governs employee exposure to air contaminants.

[*27]

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29 C.F.R. 1910.94(c)(4)(ii) governs the ventilation requirements for spray rooms. That section provides that "[s]pray rooms shall be adequately ventilated so that the atmosphere in the breathing zone of the operator shall be maintained in accordance with the requirements of subparagraph [ 1910.94(c)](6)(ii). . . ." The latter in turn provides that in addition to the requirements of 1910.94(c)(6)(i) n6 "the total air volume exhausted through a spray booth shall be such as to dilute solvent vapor to at least 25 percent of the lower explosive limit of the solvent being sprayed." This provision goes on to prescribe a formula for calculating the necessary air volume in relation to the lower explosive limits of solvents, and it also incorporates a table setting forth the lower explosive limits of various solvents commonly used in spray finishing, including toluene and xylene, which are components of the paint used by Respondent. Accordingly, in order to show a violation of these provisions, by their plain terms the Secretary must specifically prove that the levels of solvent vapors in the atmosphere [*28] exceeded 25 percent of their lower explosive limit.

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n6 Section 1910.94(c)(6)(i), entitled "[v]elocity and air flow requirements," specifies certain minimum air velocities, measured in fpm, that must be maintained depending upon the type of spray finishing operation. See p. 24, infra.

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Depite the inspector's opinion as to how Respondent could comply and despite the employee's complaints regarding fumes, the Secretary presented no evidence regarding the levels of concentrations of solvents used in Respondent's operation in relation to their lower explosive limits. Therefore, he failed to show that the air volume was such as to require any additional ventilation beyond whatever natural ventilation may have existed in Respondent's facility.

Nor did the Secretary establish a violation of 1910.94(c)(6)(i). According to that standard, the velocity of air into a spray booth "shall not be less than that specified in Table G-10 for the operating conditions specified." Table G-10, which accompanies the standard, sets [*29] forth only the following operating conditions: "[e]lectrostatic and automatic airless operation contained in booth without operator" and "[a]ir-operated guns, manual or automatic." Because Respondent used electrostatic equipment with an operator, its operation does not come within the conditions to which the standard and table are expressly limited, and therefore 1910.94(c)(6)(i) does not apply.

In any event, even if Respondent's operation is required to comply with the airflow velocities prescribed in Table G-10 for electrostatic painting, the Secretary still did not prove a violation. The only evidence regarding the velocity of the airflow in Respondent's facility is the inspector's passing remark that a velocity of 100 fpm would have complied with the standards. However, the inspector did not measure the existing airflow or otherwise ascertain its actual velocity. That oversight is particularly critical in this case because for electrostatic operations Table G-10 permits an airflow as low as 50 fpm, half the figure the inspector stated was required to achieve compliance.

Finally, the Secretary has not established a violation of any other design or mechanical specification [*30] relating to spray rooms. The reference by the Secretary's witnesses to overspray raises some question as to whether Respondent's facility failed to comply with any specific requirement relating to overspray filters and collectors which are intended to address this condition. n6 However, the Secretary did not show whether Respondent used filters and collectors or if they were used, in what manner they were deficient. And although the inspector made a passing reference to explosion-proof lighting, he did not establish a violation on this ground. n7

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n6 The design and construction specifications for spray rooms do not themselves require overspray filters. However, assuming without deciding that Respondent is engaged in production spray-finishing operations, it must conform to the requirements for spray booths. 29 C.F.R. 1910.94(c)(4)(iv). Although the standards governing spray booths do not require overspray filters, once these filters are installed they must meet certain specifications. 29 C.F.R. 1910.94(c)(3)(iii). See also 29 C.F.R. 1910.94(c)(7)(iii)(a) and (b).

n7 There is no standard expressly governing explosion-proof lighting. However, assuming without deciding that Respondent's operation is one for production spray finishing, then Respondent must comply with 29 C.F.R. 1910.94(c)(3)(i)(a), which references 29 C.F.R. 1910.107(c). (See footnote 6, supra) Section 1910.107(c)(6) requires that electrical wiring and equipment located in a spraying area "be of explosion-proof type approved for Class I, group D locations and . . . otherwise conform to the provisions of subpart S of this part, for Class I, Division 1, Hazardous Locations." Subpart S adopts the National Electrical Code, NFPA No. 70-1971, ANSI CL-1971, Article 500 which prescribes requirements for electrical equipment and associated wiring in hazardous locations. Even assuming this section applies, the Secretary produced no evidence to show in what respect the wiring did not comply with the requirements of the National Electrical Code or to show that a specific type of hazardous location as defined in the Code existed for which the wiring had not been approved within the meaning of Code.

[*31]

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The citation, therefore, should be vacated for failure of the Secretary to prove either the existence of hazards sufficient to require additional ventilation or any other respect in which Respondent's facility failed to comply with the specific requirements for spray booths or rooms.