BETHLEHEM FABRICATORS, INC.

OSHRC Docket No. 7176

Occupational Safety and Health Review Commission

June 11, 1976

[*1]

Before BARNAKO, Chairman: MORAN and CLEARY, Commissioners.

COUNSEL:

Marshall H. Harris, Regional Solicitor, USDOL

William W. Lanigan, for the employer

Michael T. Martucci, President, USWA, Local No. 1371, for the employees

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

This case presents the question of whether Administrative Law Judge Henry K. Osterman erred in recommending vacation of an item alleging noncompliance with the occupational safety and health standard at 29 C.F.R. 1910.94(c)(2). n1 We agree with his recommendation and adopt his report to the extent that it is consistent with the following.

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n1 That standard provides in pertinent part that:

"Spray booths or spray rooms are to be used to enclose or confine all operations."

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Respondent operates a steel fabrication plant several city blocks in length. At one end of the plant, Respondent spray paints steel girders. Some of the girders are 100 feet or more in length. When a representative of Complainant inspected the plant on February 13, 1974, the painting area was [*2] not enclosed by booths or confined to a spray room. The employee who was painting was not wearing a respirator. The inspector did not test the paint or its fumes to determine whether the operation was creating a hazardous atmosphere. The label on the paint cans said, "combustible" and "non-edible."

On the basis of the inspection, Complainant issued a citation to Respondent alleging that the failure to confine or enclose the spray painting operation was a nonserious violation of 29 C.F.R. 1910.94(c)(2). Respondent contested the citation and the matter went to hearing before Judge Osterman.

During the hearing, Respondent presented evidence that after the inspection it employed an industrial hygienist to measure the level of lead and solvent vapors in the atmosphere of the painting area. The hygienist testified that his tests indicated that the vapors in the atmosphere did not present a hazard to the health of Respondent's employees.

In his report, Judge Osterman found that the cited standard requires the use of spray booths only where employees are exposed to airborne contaminants in amounts sufficient to cause injury. Since he concluded that Complainant had failed to establish [*3] that the contaminants involved in this case presented a hazard to the health of Respondent's employees, he granted Respondent's motion to dismiss the citation.

Thereafter, Complainant filed a petition for review, in which he contended that it is not necessary to prove that dangerous quantities of emissions are produced by a spay painting operation in order to establish the applicability of 29 C.F.R. 1910.94(c)(2). Commissioner Cleary granted the petition.

The standard at issue is in 1910.94(c). That paragraph is entitled, "Spray-finishing operations." 1910.94(c)(1)(i) defines "spray-finishing operations" in the following terms:

Spray-finishing operations are employment of methods wherein organic or inorganic materials are utilized in dispersed form 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.

It is apparent, therefore, that 1910.94(c) encompasses a wide [*4] variety of spray-finishing operations and many types of spray-finishing materials.

The record indicates that Respondent used combustible lead primer paints in its spray-finishing operations. In this regard, we note that 1910.94(c) contains numerous cross references to section 1910.107, which is entitled "Spray Finishing Using Flammable and Combustible Materials." For example the specific standard at issue, 1910.94(c)(2), permits the option of using spray booths. It does not, however, define "spray booths." 1910.94(c)(1)(ii) states, "Spray booths are defined and described in 1910.107(a). . ." Furthermore, 1910.94(c)(3)(i) states, "Spray booths shall be designed and constructed in accordance with 1910.107(b)(1)-(4) and (6)-(10). . ." In view of the foregoing, we find that 1910.94(c) and 1910.107 must be construed together when spray finishing operations involve the use of combustible materials.

When the violation in this case allegedly occurred, 1910.107(d)(2) contained a qualifying phrase which provided that mechanical ventilation was required "so that life or property is not endangered." This is consistent with 1910.107(a)(2), which defines a spraying area [*5] as:

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

Therefore, considering sections 1910.94 and 1910.107 together, we conclude that the Judge correctly held that it was incumbent on Complainant to prove that dangerous quantities of emissions were produced by Respondent's spray painting activities in order to establish a violation of 1910.94(c)(2) and that he failed to carry his burden of proof.

Accordingly, to the extent that the Judge's report is consistent with this decision, it is affirmed.

So ORDERED.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I agree with the affirmance of Judge Osterman's decision and with Chairman Barnako's conclusion that 29 C.F.R. 1910.94 and 1910.107 must be construed together. I consider it necessary, however, to add a few complementary remarks.

Section 1910.94 is entitled "Ventilation" and paragraph (c) thereunder deals with spray-finishing operations. Section 1910.94(c)(5)(1), which bears the subtitle of "Ventilation," refers to 29 C.F.R. 1910.107(d) to point out the requirements for ventilation when [*6] spray-finishing operations involve the use of flammable and combustible materials. Respondent's use of various types of lead primer paints which are combustible materials therefore establishes another reason why the two sections must be construed together, including the definitions under each section, to ascertain the extent of the duties imposed upon respondent.

Requiring complainant to establish that dangerous quantities of emissions were produced by respondent's spray painting activities is consistent with prior Commission decisions n2 and with 29 U.S.C. 652(8) which defines an occupational safety and health standards as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." (Emphasis added.)

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n2 Secretary v. Mesa Fiberglass Products Company, 3 OSAHRC 784, 796-797 (1973); see Secretary v. Eagle-Picher Industries, Inc., 11 OSAHRC 408, 416 (1974).

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Finally, I do not believe that the Act encompasses the complainant's interpretation of 29 C.F.R. 1910.94(c)(2) which would require an enormous financial expenditure by the respondent to "abate" a condition which the complainant has not proved to be hazardous, and which respondent has proved not to be hazardous.

Judge Osterman's decision is attached hereto as Appendix A in order that the law and facts of the case may be known.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I dissent from the opinions of my colleagues for two basic reasons. First, the majority's restrictive reading of the standard in issue is contrary to its clear import. Second, I believe that the majority has failed to consider the effect of section 6(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter cited as "the Act"] in reaching their conjunctive reading of 29 CFR 1910.94(c)(2) and 1910.107 [hereinafter 1910.94(c)(2) and 1910.107].

As noted in the lead opinion, one section of respondent's steel fabrication plant contains an area where steel girders are spray painted. Consequently, in this section of its plant respondent is [*8] engaged in a "spray-finishing operation" as that term is defined at 29 CFR 1910.94(c)(1)(i). n3 On this point my colleagues and I seem to agree.

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n3 This definition is set out in full in the lead opinion.

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Respondent was cited for failing to enclose or confine its spray-finishing operation in contravention of 29 CFR 1910.94(c)(2). This standard, in pertinent part, provides as follows:

1910.94 Ventilation.

* * *

(c) Spray-finishing operations.

* * *

(2) Location and operation. Spray booths or spray rooms are to be used to enclose or confine all operations (emphasis added).

By its terms this standard requires that all spray-finishing operations be enclosed or confined. Inasmuch as respondent does not contest the fact that it has not confined or enclosed its spray painting operation, a violation of the cited standard was shown.

Despite the clear import of 1910.94(c)(2), however, my colleagues affirm the vacating of the citation by requiring additional proof ". . . that dangerous [*9] quantities of emissions were produced by respondent's spray painting activities. . . ." n4 This additional evidentiary burden is placed on the Secretary by holding that 1910.94(c)(2) must be construed in conjunction with 29 CFR 1910.107 when spray-finishing operations involve the use of combustible materials. I disagree with my colleagues' reading of 1910.94(c)(2).

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n4 The Judge held that respondent had shown that the cited spray area did not contain sufficient lead and solvent vapors so as to pose a hazard to the health of respondent's employees. I would note, however, that in addition to respondent's evidence, there was also testimony from several affected employees and the union safety officer that employees in the areas adjacent to the open spraying area had on occasion experienced choking reactions and nausea from the unconfined fumes.

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The lead opinion, after noting "numerous cross-references" to 1910.107 in 1910.94(c), concludes that such references evince a requirement that the two standards be read [*10] together under the facts of this case. Scrutiny of the cross-references set out in the lead opinion, however, reveals the fallacy of the conclusion. The first cross-reference noted is 1910.94(c)(1)(ii)'s mere incorporation of the definition of a spray booth appearing at 1910.107(a)(3). n5 Similarly, the other reference noted is 1910.107's mechanical specifications for the design and construction of a spray booth. I submit that, contrary to the lead opinion's conclusion, these two references do not require that 1910.94(c) and 1910.107 be read together in their entirety under the facts of this case. The two cross-references that are noted should be regarded only in the manner that they were intended; viz., simple incorporations of a definition of and mechanical specifications for a spray booth. n6

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n5 This definition reads as follows:

1910.107 Spray finishing using flammable and combustible materials.

(a) Definitions applicable to this section -

* * *

(3) Spray booth. A power-ventilated structure provided to enclose or accommodate 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.

n6 The concurring opinion notes 1910.94(c)(5)(i)'s incorporation of 1910.107(d)'s mechanical specifications for ventilation systems in support of the majority's conclusion. As with the cross-references relied upon in the lead opinion, I submit that this reference is nothing more than a time-saving incorporation that does not mandate the majority's application of 1910.107 to the facts of this case.

[*11]

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Thus, in my opinion the majority errs when, after concluding that 1910.94(c) must be read together with 1910.107 under the instant facts, they seize upon 1910.107(a)(2)'s use of the term "dangerous quantities of flammable vapors or mists" and conclude that complainant must show the existence of such dangerous quantities in this case. Nowhere in 1910.94(c)(2) is there a cross-reference to 1910.107(a)(2). In any event, on this record it is obvious that respondent contravened 1910.94(c)(2)'s clear requirement that all spray-finishing operations, regardless of the substance being applied, must be enclosed or confined. The fact that respondent used combustible paint does, of course, suggest the applicability of 1910.107. Nevertheless, I submit that the definitions in 1910.107 insofar as they define the adequacy of spray booths and spray rooms in terms of a human hazard should only be applied once it is shown that spray booths or spray rooms are being used. If, however, a spray finishing operation is not enclosed or confined at all, one need go no farther than 1910.94(c)(2) since [*12] this standard requires that all spray-finishing operations be enclosed or confined. n7

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n7 Respondent argues that application of such a requirement to its operations would produce an unreasonable result. If this is in fact true I suggest that respondent can seek a variance from the standard under section 6(d) of the Act., i.e., a waiver of its application so long as an equal degree of protection to employees is afforded.

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The majority fails to note that two standards they read together were adopted from different sources. The cited standard, 1910.94(c)(2), is a standard drafted by the American National Standards Institute. n8 On the other hand, 1910.107 is a standard drafted by the National Fire Protection Association. n9

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n8 See 29 CFR 1910.99.

n9 See 29 CFR 1910.115.

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I submit that the fact that the two standards were derived from [*13] different sources, when considered in conjunction with section 6(a) of the Act, indicates the error of my colleagues' restrictive reading of 1910.94(c)(2). In essence my colleagues find a conflict between the clear terminology employed in 1910.94(c)(2) and 1910.107's references to "dangerous quantities of flammable vapors or mists." This conflict is resolved by a conjunctive reading of 1910.94(c) and 1910.107 which limits 1910.94(c)(2)'s reference to "all operations" thereby rendering it meaningless.

Section 6(a) itself suggests the method of resolving any conflict between national consensus standards promulgated by the Secretary. Section 6(a) provides as follows:

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 [*14] 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 (emphasis added).

From the above it is clear that conflicts among standards derived from different sources were to be resolved by the Secretary of Labor at the time of their adoption. The Secretary must adopt the standard "which assures the greatest protection of the safety or health of the affected employees."

I submit that if the majority's conjunctive reading of 1910.94(c)(2) and 1910.107 is correct under the facts of this case, then the Secretary would not have adopted 1910.94(c)(2) in its present form. But the Secretary did adopt 1910.94(c)(2) so as to require that all spray-finishing operations be enclosed or confined. I would, therefore, presume the regularity of the Secretary's action and conclude that in adopting 1910.94(c)(2) in its present form he was following the mandate of section 6(a) of the Act. I would hold therefore that either the Secretary found no conflict, or if there were a conflict between 1910.94(c)(2) and 1910.107 the Secretary [*15] chose to adopt 1910.94(c)(2) insofar as it required that all spray-finishing operations be enclosed or confined. Thus, contrary to the majority, I would not disturb the Secretary's section 6(a) determination that to require confinement or enclosure of all operations would assure "the greatest protection of the safety or health of the affected employees."

I would, therefore, affirm the citation alleging a violation of 1910.94(c)(2).

APPENDIX A

DECISION AND ORDER

Louis Weiner, Regional Solicitor, U.S. Department of Labor and Alan Davis, for the Complainant

William Lanigan and Richard Ragsdale, for the Respondent

Michael T. Martucci, President, Local 1371, United Steelworkers of America

John Posivak, Health and Safety Coordinator, United Steelworkers of America, District No. 9

OSTERMAN, Judge

This is a proceeding initiated by the Respondent pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c) (hereafter called the Act) to contest a Citation and Notice of Proposed Penalty issued to Respondent on March 13, 1974.

The documentary record discloses that as a consequence of an inspection of Respondent's worksite on February 13, 1974, [*16] a Citation was issued charging Respondent with a non-serious violation of 29 CFR 1910.93(a)(2) and a non-serious violation of 29 CFR 1910.94(c)(2). Penalties of $70.00 and $60.00 respectively were proposed for the said violations. A Notice of Contest, a Complaint, and an Answer were timely filed. A hearing was held in Allentown, Pensylvania.

At the hearing it was stipulated that Respondent withdraws its contest to Item 1 of the Citation [29 CFR 1910.93(a)(2)] and agrees to pay the proposed penalty. The Secretary agreed to extend the abatement date for this item as follows: a short-term abatement period until September 12, 1974, during which a detailed plan for long-term abatement shall be submitted by Respondent, complete abatement to be accomplished by February 12, 1975, (Tr-2). No objection to this stipulation was made by the union representatives present. Thus, the Citation as it relates to Item 1, and the corresponding proposed penalty became the final order of this Commission.

It was further stipulated that Respondent is a Pennsylvania corporation; that it was engaged in Commerce at the time of the alleged violation; that there is no evidence of employee injuries; that [*17] Respondent owns all of the machinery referred to in the Citation; that through April of 1974 Respondent handled 1,135 tons of steel; and that Respondent has an average of 543 employees (Tr 3-6). Subsequently, during the course of the trial Respondent withdrew its challenge to the $60.00 penalty proposed for Item 2 (Tr. 31). Respondent's challenge is directed only to the validity of the violation charged in Item 2 of the Citation which states that:

"A spray booth or spray room was not used to confine the spraying operations in the following location:

a) Industrial department (fitting structural steel) spray painting of industrial steel." n1

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n1 29 CFR 1910.94(c)(2) reads as follows:

(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 the Standard for Spray Finishing Using Flamable and Combustible Materials, NFPA No. 33-1969

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The pertinent testimony is as follows:

The [*18] compliance officer testified to the effect that on the day of inspection he observed one of Respondent's employees manually spray painting a piece of structural steel in a building several blocks in length the ceiling of which was 40 or more feet in height and contained a number of fans. The spraying was not being done in a spray booth or spray room. There were other employees in the building - 100 or more - but none in the immediate vicinity of the spraying. A few of the employees were sprayers (Tr-6). This witness also stated that those employees who were not spraying were not wearing respirators. The paint being used was orange in color (Tr-9). The individual doing the painting was not wearing a respirator although he did have a respirator "on the side" (Tr-10).

On cross-examination this witness stated that he made no tests with respect to the painting, that he did not know what kind of paint was being used or whether it was a toxic paint or whether it was combustible (Tr. 10-11). He made no tests of the paint being used or the atmosphere (Tr-10, 11, 38). He also stated in response to a question that he "thought" the operation presented a hazard and that his "thought" [*19] was based upon what he saw. He did not express his thoughts to Respondent's representative who was on the scene (Tr-12).

One of Respondent's employees, testifying for the Complainant, stated that he is a spray painter, that on the day of inspection he was so employed and that he was using a paint labeled "combustible" and "non-edible". The witness also stated that painters did wear respirators when spraying; that other employees in the same general vicinity of the painting operation did not do so; but that respirators were available. This witness also stated that the fumes from the paint were detectable when he did not wear a respirator (Tr 18-20). On cross-examination the witness indicated that the steel beams sprayed varied in size up to about 100 feet in length and that the spraying area does have exhaust fans in the walls (Tr 21-24).

Respondent's witnesses testified that the spray area involved was located at one end of the fabrication facility and distinguished from the rest of the facility by its floor which is unpaved (Tr 52, 62); that there are six exhaust fans; and that respirators are available for employees in that area (Tr 53). Some of the products painted are 100 [*20] feet or more in length and could not be enclosed in a booth since these large pieces of steel are moved along by means of overhead cranes (Tr 54, 61).

An industrial hygienist employed by the Pennsylvania Manufacturers Insurance Company testified that at Respondent's request he had on April 16, 1974, tested the atmosphere in Respondent's spray area using approved methods of measurement in order to determine the exposure levels of lead and solvent vapors (Tr-70). His tests indicated that the atmosphere in the spray area presented no hazard to the health of Respondent's employees even without the use of respirators (Tr 75).

Admittedly, Respondent has not confined its spray painting to a booth or compartmented spray area. Respondent's urges that it need not do so unless the atmosphere in the area is so contaminated as to constitute a hazard to the health of its employees. The Secretary, however, takes the position that proof of a hazardous condition is not required under the regulation involved, and that mere absence of a spray booth is, in effect, conclusive evidence of a violation. In support of his position the Secretary relies upon ANSI-Z 9.3-1964 (Exh. C-1; Cpl. Br. 5). The [*21] Area Director in his testimony supported his position by reading into the record Section 1.2 of the ANSI Standard entitled "Purpose". (Tr. 25-26). That sections reads as follows:

"This standard is intended to prevent the emission into the workroom atmosphere of gases, vapors, mists, or dusts from spray finishing operations in quantities tending to:

(1) Injure health through inhalation.

(2) Cause injury due to contact with the skin.

(3) Condense or collect upon floors, ceilings, or walls of any workroom to produce an unsanitary or unsafe condition." (Italics mine)

It appears to me that the operative language of this section is found in the initial paragraph. The words "in quantities tending to" imply that the requirements which follow are applicable only where it is first shown that the quantity of the contaminants in the atmosphere is sufficient to result in an injury to the employee either through inhalation, contact, or because of a resultant unsafe condition from condensation, or collection on some part of the workroom. I believe that any other interpretation would be arbitrary and unreasonable. Since the Secretary relies entirely upon this Standard to support his [*22] position he is, in the words of the Immortal Bard, "hoist with his own petard". He has made no showing with respect to the level of contaminants in the atmosphere of Respondent's workplace or the inadequacy of the ventilation of either of the other two conditions mentioned in Section 1.2 of the ANSI standard. Although several witnesses for the Secretary testified that they could detect the odor of paint when spraying occurred (Tr 19, 41, 44) the only substantial evidence on these points were offered by Respondent and was uncontradicted by the Secretary (Tr 53, 70-78).

I find that the Secretary has failed to establish an essential element in his case and that Respondent's motion to dismiss, made at the close of the Secretary's case should be granted.

FINDINGS OF FACT

1. Respondent is a corporation organized and existing under the laws of the State of Pennsylvania. It is engaged in the fabrcation of steel products.

2. Respondent was at all material times an "employer" engaged in "commerce" as those terms are defined by Section 3 of the Act.

3. Respondent's employs an average of 543 workers. In the first 4 months of 1974 Respondent handled 1,135 tons of steel.

4. As [*23] a result of an inspection of Respondent's worksite conducted on February 13, 1974, the Secretary of Labor on March 13, 1974, issued a Citation charging Respondent with two non-serious violations and a Notice of Proposed Penalty. The alleged violations, abatement dates and proposed penalties are as follows:

Violations

Abatement Date

Proposed Penalty

29 CFR 1910.93(a)(2)

April 12, 1974

(Short term)

$70.00

September 12, 1974

(complete abatement)

29 CFR 1910.94(c)(2)

April 12, 1974

$60.00

5. At the hearing Respondent withdrew its Notice of Contest with respect to the alleged violation of 29 CFR 1910.93(a)(2) and agreed to pay the penalty of $70.00 proposed for this violation. In return the Secretary has agreed to extend the abatement period for this violation as follows: A short-term abatement period to end September 12, 1974, during which time Respondent must submit a detailed plan for long-term abatement. Complete abatement to be accomplished by February 12, 1975.

6. Also during the course of the hearing Respondent waived its rights to contest the penalty proposed for the alleged violation of 29 CFR 1910.94(c)(2) agreeing to pay this penalty if the violation [*24] is established.

7. Respondent's worksite used for the construction of structural steel products is several city blocks in length and at one end of its plant steel girder often 100 feet in length are spray-painted by personnel who wear respirators.

8. The painting is not done in an enclosed area or booth as required by 29 CFR 1910.94(c)(2) or in a location with is otherwise separated from the rest of Respondent's plant by a wall or partition.

9. Structural steel products are moved from the production areas in Respondent's plant to the painting area by means of a system of overhead cranes, a procedure which makes the use of a spray booth or other compartmented area impracticable in the operation of Respondent's plant.

10. The Secretary failed to establish that on February 13, 1974, air-born contaminants in the spraying area in Respondent's plant represented a hazard to the health of Respondent's employees.

CONCLUSIONS OF LAW

1. Respondent, a Pennsylvania corporation, is subject to the jurisdiction of the Secretary of Labor and this Commission.

2. The Respondent on February 13, 1974, was not in violation of 29 CFR 1910.94(c)(2) because it was not established, as a precondition [*25] to the requirement that spray-painting must be performed in a spray-booth, that the atmosphere in the area where Respondent's employees were engaged in spray-painting contained air-borne contaminants in quantities which tended to injure the health of said employees through inhalation, contact, or as a result of condensation or collection in the worksite which produced an unsafe or unsanitary condition.

3. The Respondent having stipulated to withdraw its contest with respect to Item 1 of the Citation, and the penalty proposed for this violation, the violation and the penalty are deemed to be the final order of this Commission.

ORDER

Pursuant to Section 10 of the Act and Rule 66 of this Commission's Rules of Procedure it is ORDERED:

1. That Item 1 of the Citation issued to Respondent on March 13, 1974, the penalty proposed for this item, and the abatement dates as amended by stipulation be, and the same hereby are, AFFIRMED.

2. That Item 2 of the said Citation charging a violation of 29 CFR 1910.94(c)(2) be, and the same hereby is, DISMISSED and the penalty proposed for this alleged violation is VACATED.

HENRY K. OSTERMAN, Judge, OSHRC

Dated: September 19, 1974

Washington, [*26] D.C.