CLIFFORD B. HANNAY & SON, INC.

OSHRC Docket No. 15983

Occupational Safety and Health Review Commission

February 1, 1978

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Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Thomas M. Whalen, III, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Abraham Gold is before the Commission pursuant to 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. Judge Gold held that respondent was in nonserious violation of 29 C.F.R. 1910.107(c)(6) n1 because electrical switches and receptacles, which had not been approved for Class I, Division 2 hazardous areas, were located within 20 feet of spray paint booths in respondent's plant. n2 No penalty was assessed for the violation.

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n1 Section 1910.107(c)(6) provides:

1910.107 Spray finishing using flammable and combustible materials.

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(c) Electrical and other sources of ignition.

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(6) Wiring type apprcved. Electrical wiring and equipment not subject to deposits of combustible residues but located in a spraying area as herein defined shall be of explosion-proof type approved for Class I, group D locations and shall otherwise conform to the provisions of subpart S of this part, for Class I, Division 1, Hazardous Locations. Electrical wiring, motors, and other equipment outside of but within twenty (20) feet of any spraying area, and not separated therefrom by partitions, shall not produce sparks under normal operating conditions and shall otherwise conform to the provisions of subpart S of this part for Class I, Division 2 Hazardous Locations.

The specifications for electrical devices in Class I, Division 2 Hazardous Locations are contained in Article 501 of the 1971 NEC at 70-293 through 70-302. These requirements are OSHA standards by virtue of the fact that 29 C.F.R. 1910.308(a), a standard contained in subpart S of part 1910, incorporates the 1971 NEC by reference.

n2 The Judge's decision also vacated a portion of the citation that alleged a violation of 1910.107(c)(6) in Building #7 of respondent's facility and a portion of the citation that alleged a violation of 29 C.F.R. 1910.107(c)(7). Inasmuch as neither party has taken issue with these dispositions, the Commission will not review them. Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976). The Judge's decision with respect to these holdings is accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

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Respondent's principal contention on review is that although it is not in compliance with the cited standard, which was drawn from the 1971 edition of the National Flectrical Code, NFPA, 70-1971 (hereinafter 1971 NEC), n3 the citation should be vacated because respondent is in compliance with the applicable requirements of the National Electrical Code, NFPA, 70-1975 (hereinafter 1975 NEC). The pertinent 1975 NEC provisions, which have not been promulgated as OSHA standards, reduce the Class I, Division 2 hazardous area to five feet from the open face of a spray booth when the booth is equipped with an interlocking system that makes spraying equipment inoperable unless a ventilation system is functioning. n4 Respondent's booths are equipped with such an interlocking system.

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n3 The source of 1910.107(c)(6) is 407, NFPA No. 33-1969, Standard for Spray Finishing using Flammable and Combustible Materials. 29 C.F.R. 1910.115. The source refers to Articles 501 and 516 of the NEC. Article 516 of the 1971 NEC, which pertains to areas where flammable finishes are applied, contains provisions that are similar to the requirements of 1910.107(c)(6). Those provisions are:

Article 516-2. Hazardous Areas.

(b) All space within 20 feet horizontally in any direction from the open face of a spray booth . . . shall be considered to be Class I, Division 2 locations unless the authority having jurisdiction judges otherwise.

Article 516-3. Wiring and Equipment in Hazardous Areas.

(a) All electrical wiring and equipment within the hazardous areas . . . defined in Section 516-2 shall conform to applicable provisions of Article 501.

n4 Article 516-2(b)(2)(a) of the 1975 NEC provides that the Class I, Division 2 locations shall extend 5 feet from the open face of the front of a spray booth, "[i]f the ventilation system is interlocked with the spraying equipment so as to make the spraying equipment inoperable when the ventilation system is not in operation."

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The pertinent facts are as follows. Respondent is a manufacturer of reels for industrial hoses. In the spray booths in question, which are located in Buildings #2 and #5 at respondent's facility, employees paint reels with an air spray gun containing lacquer and flammable solvents. At both locations, electrical switches and receptacles, which do not meet the specifications for Class I, Division 2 hazardous areas, are located more than five feet, but less than twenty feet, from the open face of the spray booths. n5 The Class I, Division 2 specifications for electrical equipment are designed, among other things, to prevent fires and explosions that can result from contact between sparks and flammable vapors.

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N5 The compliance officer testified that the electrical devices were located two feet from the entrance to the booth in Building #2 and six to eight feet from the entrance to the booth in Building #5. The Judge referred to the testimony concerning the booth in Building #2, but made no specific finding of fact. Despite the testimony of the compliance officer that the devices were two feet from the entrance of the booth in Building #2, the Commission finds that the devices were more than five feet from the entrance for the following reasons: (1) From the photographic exhibits depicting this booth, it appears that while the devices are only a few feet from the alcove leading to the booth, they are a good deal farther from the open face entrance to the booth. According to the 1975 NEC, the five foot radius is measured from the open face or front of the spray booth. 1975 NEC at 70-388, Figure 2. (2) It can be inferred from the testimony of the Underwriters' inspector that the equipment was more than five feet from the open face of the spray booth since he stated that both booths were in full compliance with the 1975 NFC. (3) The compliance officer's recollection of the distance involved appeared hazy. We note that the Commission, rather than its Administrative Law Judges, is ultimately responsible for making findings of fact. See Accu-Namics, Inc. v. O.S.H.R.C., 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976); K. Davis, Administrative Law Treatise, 10.04 (1958).

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The compliance officer who conducted the inspection testified that because the electrical devices did not meet the specifications for Class I, Division 2 hazardous areas, locating them less than 20 feet from the spray booths posed a danger of fire or explosion. He admitted, however, that he based his determination that a hazard was present solely on the fact that the standard specified that electrical devices should be located more than twenty feet from spray booths, and that he was unaware that the 1975 NEC reduced that distance to five feet when spray booths are equipped with an interlocking system.

However, two other witnesses, the electrical contractor who installed the booths and an inspector for the New York Board of Fire Underwriters, testified that no hazard was posed by the booths. The Underwriters' inspector, who had been an electrical inspector for 17 years, had inspected the booths and his organization had issued certificates of approval for both of them. These certificates indicate that the work that had been performed by the electrical contractor is in compliance with the current National [*5] Electrical Code. The Underwriters' inspector characterized the 1975 NEC as an updated version of the 1971 NEC in which changes had been made to keep pace with technology and current conditions.

The Judge held that inasmuch as the evidence shows that respondent failed to comply with 1910.107(c)(6), a violation has been established. He rejected respondent's arguments concerning the 1975 NEC on the grounds that the Secretary of Labor had made no changes in the standard as of the date of inspection of respondent's premises. The Judge neither discussed nor made findings as to whether a hazard was created by respondent's noncompliance with the standard.

Ordinarily, when a standard prescribes specific means of enhancing employee safety, a hazard is presumed to exist if the terms of the standard are violated. Vecco Concrete Constr., Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD para. 22,247 (No. 15579, 1977). Although the record in this case establishes that conditions in respondent's facility failed to comport with the requirements of the cited standard, evidence also reveals that the safety of respondent's employees had not been diminished. When a violation has [*6] only a negligible relationship to safety and health, the Commission is authorized under 29 U.S.C. 659(c) to classify the violation as de minimis. Alfred S. Austin Constr. Co., 76 OSAHRC 50/A2, 4 BNA OSHC 1166, 1975-76 CCH OSHD para. 20,650 (No. 4809, 1976). No penalty is assessed for a de minimis violation and it is not required that the cited condition be abated. National Rolling Mills Co., 76 OSAHRC 121/D7, 4 BNA OSHC 1719, 1976-77 CCH OSHD para. 21,114 (No. 7987, 1976). We modify the Judge's decision and affirm a de minimis violation.

Although the commission cannot elect to enforce the 1975 NEC provision because it has not been promulgated by the Secretary as an OSHA standard, that provision constitutes an expert opinion that no hazard exists requiring that electrical equipment more than 5 feet from a spray booth equipped with an interlocking system be approved for Class I, Division 2 hazardous locations. Cf. United States Steel Corporation, 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1977-78 CCH OSHD para. 21,795 (Nos. 10825 & 10849, 1977). The revision in the 1975 NEC coupled with the opinion of the inspector for the New York State Board of Underwriters, who had [*7] 17 years of experience as an electrical inspector, is persuasive evidence that no danger was posed by the conditions at respondent's plant. The contrary opinion of the compliance officer is unconvincing because he was unaware of the 1975 NEC revisions and his belief that a hazard was present was based solely on the fact that the requirements of the standard had not been satisfied.

Accordingly, the cited violation of 1910.107(c)(6) is modified to de minimis and is affirmed as modified.

It is so ORDERED.