ED JACKMAN PONTIAC-OLDS, INC.  

OSHRC Docket No. 76-20

Occupational Safety and Health Review Commission

March 31, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Terry A. Bethel, for the employer

OPINION:

DECISION

BY THE COMMISSION:

On December 7, 1976, Administrative Law Judge Erwin L. Stuller issued his decision in this case affirming certain items of a citation alleging violations of section 5(a)(2) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act"), for failure to comply with certain occupational safety and health standards promulgated by the Secretary of Labor ("the Secretary").   Respondent, Ed Jackman Pontiac-Olds, Inc., petitioned the Commission for review of the judge's decision and three directions for review were entered pursuant to section 12(j) of the Act. n2

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n1 29 U.S.C. §   654(a)(2).

n2 29 U.S.C. §   661(i).

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Chairman Cleary granted Respondent's petition and specified the issue, "Did the Administrative Law Judge err by holding that respondent operated a 'spray room'   [*2]   as defined by 29 C.F.R. §   1910.94(c)(1)(iii) n3 and a 'spraying area' within the meaning of 29 C.F.R. §     In Bethlehem Fabricators, we had held that the Secretary must prove that a spray finishing operation produced dangerous quantities of emissions in order to prove noncompliance with the standard at section 1910.94(c).   That interpretation of the standard was rejected in Westinghouse. [*3]   No such burden is incumbent upon the Secretary.   Accordingly, we need not examine whether the burden has been carried in this case.

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n3 Section 1910.94(c)(1)(iii) provides:

Spray room. A spray room is a room in which sprayfinishing operations not conducted in a spray booth are performed separately from other areas.

n4 Section 1910.107(a)(2) provides:

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.

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We affirm the judge's decision in part and reverse it in part.

I

The Respondent is an automobile dealership in Ashland, Ohio.   As part of its operation, it has a body shop in which it makes repairs.   On November 11, 1975, an authorized representative of the Secretary conducted an inspection of Respondent's premises.   As a result of the inspection, the Secretary issued a citation alleging twenty nonserious violations.   The citation was received by Respondent on December 4, 1975,   [*4]   and Respondent timely contested items 10, 11, 12, 13, and 18. n5

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n5 Item 16 of the citation was not contested at that time.   See note 8.

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Subsequently, Respondent had an informal conference with the Secretary's area director, following which the Secretary attempted to amend the citation by deleting item 13, by changing the standard cited in items 10 and 12, and by changing the descriptions of the alleged violations in items 11 and 12.   Because Respondent had already filed its notice of contest, n6 however, the area director no longer had the authority to amend the citation without leave of the Commission.   Cf. P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979), appeal filed No. 79-1398 (10th Cir. May 7, 1979) (The provisions relating to amendment of citations in the Secretary's Field Operations Manual do not deal with amendments after a notice of contest has been filed, presumably in recognition that such amendments are governed by the Commission's Rules and   [*5]   cannot be accomplished unilaterally by the Secretary).   Because jurisdiction over this case vested in the Commission when the notice of contest was filed, and the area director lacked authority to amend the citation without leave of the Commission, the amendments were void. n7

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n6 Respondent argues that all of the citations should be vacated because the Secretary failed to comply with Rule 32 of the Commission's Rules of Procedure, 29 C.F.R. §   2200.32.   That rule requires that a notice of contest be forwarded to the Commission within 7 days of its receipt by the Secretary.   Absent a showing of prejudice by Respondent, the Secretary's failure to comply with a procedural rule does not warrant vacation of the citations.   Rollins Outdoor Advertising Corp., 76 OSAHRC    , 4 BNA OSHC 1861, 1976-77 CCH OSHD P21,311 (No. 6954, 1976).

n7 For this reason, item 13 was not properly deleted.   We vacate item 13, however, for failure by the Secretary to introduce any evidence on that item.

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The changes in the allegations with regard [*6]   to items 10, 11, and 12 that were attempted by amendments to the citation were incorporated in the complaint.   Where, as here, a respondent has fair notice and there has been no assertion of prejudice in the preparation or presentation of respondent's defense, prehearing amendments have consistently been allowed.   P.A.F. Equipment Co., supra. The amendments to items 10, 11, and 12 are therefore permitted, and items 10, 11, 12, as amended, and item 18, as originally cited, are before us on review. n8

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n8 Respondent filed a notice of contest to the "amended" citation on December 29, 1975, the sixteenth working day after the original citation was received.   This was therefore not a timely contest of the original citation.   In this later contest, Respondent contested items 10, 11, 12, 16 and 18.   All but item 16 had been contested in the December 11 notice.   Because item 16 was not included in the Secretary's attempted amendment, the fifteen-working day period would not have begun anew as to that item, even if the amendment were valid.   Keppel's, Inc., 79 OSAHRC 43/A2, 7 BNA OSHC 1442, 1979 CCH OSHD P23,622 (No. 77-3020, 1979), appeal dismissed No. 79-2045 (3d Cir. Jan. 8, 1980).   Therefore, item 16 was not timely contested and the citation and proposed penalty for that item became final by operation of law under section 10(a) of the Act, 29 U.S.C. §   659(a).   The judge vacated that item, but he had no jurisdiction to do so.   Josten-Wilbert Vault Co., 76 OSAHRC 98/G5, 4 BNA OSHC 1577, 1976-77 CCH OSHD P20,967 (No. 12549, 1976).   Accordingly, we vacate the judge's order as to item 16.

  [*7]  

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II

As part of the body work performed in Respondent's body shop, the repaired portions of the automobiles are spray-painted.   It is this spray-painting operation that gave rise to the citations before us.

The body shop in which the spraying was being performed is located in an addition to the building that originally housed the dealership.   The original part of the building now houses Respondent's business offices, showroom, and a service area.   The building addition is approximately 110 feet long and 40 feet wide, with a concrete floor and a metal roof about 20 feet high.   From the testimony, it appears that one long side of the addition is the old exterior wall of the original building.   The body shop occupies about half of the addition.   Its dimensions are about 39 feet by 58 feet. There are windows in the wall separating the body shop from the original structure.   These windows do not have noncombustible shutters, but they have been covered on the other side with masonite particle board.   The wall between the body shop and the old building and the two exterior walls of the body shop are masonry.   [*8]   Respondent's parts department occupies part of the other end of the addition and is divided from the body shop by an interior wall about eight feet high and 20 feet long.   This wall is partly brick and partly particle board.   There is about 12 feet of airspace above the ceiling of the parts room.   The wall separating the body shop from the parts room does not extend the width of the addition.   Between the end of that wall and the exterior wall is a sliding overhead door permitting automobiles access to the body shop via a passageway behind the parts room.   In the overhead door, which is made of wood, is a door for pedestrian traffic.

There is an exhaust fan in a window in the wall of the body shop located at the end of the building.   The fan is framed with wood so that it will fit securely into the window. Fluorescent light fixtures hang from the ceiling to a height of about twelve feet from the floor of the body shop. The bulbs are not enclosed to prevent breakage or falling.   The electrical wiring is in rigid conduits and the switches are not sealed where they join the conduits. In addition, the switches are not explosion-proof.

During the inspection, the compliance officer [*9]   observed one of Respondent's employees spraying an automobile with a mixture of lacquer and lacquer thinner.   The compliance officer testified that both are highly flammable. He observed fumes in the area where the spraying was being done.   He testified that the concentration of vapors was so heavy that he was afraid to take a flash picture with his camera for fear that it would cause an explosion.   He testified that he found deposits of paint overspray on the wiring and fixtures and that the deposits were combustible.

Item 10 of the citation, as amended, alleges a violation of the Act for failure to comply with the standard at 29 C.F.R. §   1910.94(c)(4)(i). n9 The description of the alleged violation contained in the citation reads as follows: "The construction of the spray room included [sic] walls and window frames, were of combustible materials."

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n9 The standard at 29 C.F.R. §   1910.94(c)(4)(i) provides in pertinent part:

(i) Spray rooms, including floors, shall be constructed of masonry, concrete, or other noncombustible material.

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Item 11 of the citation, as amended, alleges noncompliance with the standard at 29 C.F.R. §   1910.94(c)(4)(ii). n10 The citation described the alleged violations as follows: "The fire door for the spray room was constructed of combustible material and there were no shutters on the east wall windows."

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n10 The standard at 29 C.F.R. §   1910.94(c)(4)(ii) provides in pertinent part:

(ii) Spray rooms shall have noncombustible fire doors and shutters.

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Item 12 of the citation, as amended, alleges noncompliance with section 1910.94(c)(7)(i), n11 in that "makeup air was not supplied in quantities equal to that being exhausted in the spray room." Item 18 alleges: "Electrical wiring, boxes, fittings, and non-rigid conduit with deposits of ignitable residue and not of the approved type, and unprotected light fixtures are located in spray room," constituting a failure to comply with section 1910.107(c)(4). n12

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n11 The standard at 29 C.F.R. §   1910.94(c)(7)(i) provides in pertinent part:

(i) Clean fresh air, free of contamination from adjacent industrial exhaust systems, chimneys, stacks, or vents, shall be supplied to a spray booth or room in quantities equal to the volume of air exhausted through the spray booth.

n12 The standard at 29 C.F.R. §   1910.107(c)(4) provides in pertinent part:

(4) Wiring conformance. Electrical wiring and equipment shall conform to the provisions of this paragraph and shall otherwise be in accordance with Subpart S of this part.

  [*11]  

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III

Before the judge, Respondent argued that it does not operate a spray room and that, if it does, its operations fall within the exception set out in 29 C.F.R. §   1910.94(c)(8) n13 because the spray-painting was done with a small, portable, spraying apparatus not used repeatedly in the same location.   The Secretary argued that spray finishing operations were being performed separately from other areas, that the spraying was not confined to a spray booth, and that the spraying was done repeatedly in the same location.   The judge found that the evidence supported the Secretary's position.   He expressly rejected Respondent's argument that the exception in 29 C.F.R. §   1910.94(c)(8) applies to its operation because that exception applies only if the spraying is not performed "repeatedly in the same location."

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n13 The standard at 29 C.F.R. §   1910.94(c)(8) provides in pertinent part:

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.

  [*12]  

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The judge found that the preponderance of the evidence supported the Secretary's allegations that the spray room had a window frame made of wood, a wooden sliding overhead door, and a fiberboard wall.   He found that the spray room did not have non-combustible shutters.   The judge also found that the electrical fixtures and wiring in the spray room were not the type approved for use where spray finishing is performed using combustible materials, that the fluorescent light bulbs in the overhead light fixtures were not protected, and that the electrical wiring conduit and fittings were covered with combustible residue from paint over-spray.   The judge further found that there was no flow of clean, fresh air in the breathing zone of the employee who was spraying. He found that the paint being sprayed was highly flammable and that there was a heavy concentration of vapors.

On these facts, the judge affirmed items 10, 11, 12, and 18.   He assessed penalties of $25 for item 10, $35 for item 12, and $80 for item 18.   He assessed no penalty for item 11.   Respondent petitioned the Commission to review the judge's [*13]   decision, and review was directed.

IV

The essence of Respondent's argument on review is that the cited standards do not apply to Respondent's operations because it does not operate a "spray room" or a "spraying area" within the meaning of the standards.   With respect to items 10, 11, and 12, Respondent also argues that its body shop is not a spray room.   Respondent further argues that, even if the body shop is a spray room, it qualifies for the exemption for spraying operations performed with a portable sprayer and not performed repeatedly in the same place.   In support of its argument that the body shop is not a spray room, Respondent points to evidence that the spraying is incidental to the body work and that a small percentage of its employees' time is spent spray painting.   With respect to item 12, Respondent also argues that the judge erred in finding that makeup air was not being supplied in quantities equal to that being exhausted from the body shop. Regarding item 18, Respondent argues that the spray room was not proven to be a spraying area because "dangerous quantities of flammable vapors or mists, or combustible residues, dusts, or deposits" were not shown to be present.   [*14]  

The Secretary, on the other hand, argues that the body shop is both a "spray room" and a "spraying area" within the definition of the standards and that the judge correctly found that the Secretary had carried his burden of proof as to the violative conditions.

We have reviewed the entire record and affirm the judge's disposition of items 10, 11, and 18.   We reverse his disposition of item 12, however, and vacate that item.

We hold that, on the facts of this case, the arrangement of Respondent's spray-painting operation made the body shop a spray room within the definition of section 1910.94(c)(1)(iii).   Moreover, Respondent's operation does not fall within the exception in section 1910.94(c)(8) for spraying performed with a portable sprayer and not done repeatedly in the same location.   We agree with the judge that the exception does not apply because the painting in the body shop was performed repeatedly in the same location.   We add that the spraying apparatus was not shown to be portable because it was connected to a central source of compressed air that was built in and could not be moved.

We find that Respondent's body work is performed in a separate room, away from the   [*15]   showroom, mechanical service area, parts department, and offices.   The fact that other work is performed in the room does not change its classification as a spray room in this case.   Spray finishing is an integral part of the automotive body repairs performed in the room and constitutes a significant and necessary portion of the body work.   Moreover, the division of time between preparing the automobile for the spraying and actual spraying does not affect the classification of the room.   Many of the other activities performed in the body shop are preliminary operations to ready the car for the final step, spraying.

Accordingly, the body shop is a spray room within the meaning of the standard.   Because Respondent has not disputed that the body shop has wooden doors and a combustible wall, that the exhaust fan was framed with wood, or that the windows lacked noncombustible shutters, items 10 and 11 are affirmed.

Item 12 alleges that makeup air in the spray room is not supplied in quantities equal to that being exhausted. The judge found a violation on the basis that there was no air flow in the breathing zone of the employees performing the spraying at the time of the inspection.   [*16]   Although the compliance officer's testimony supports the judge's factual conclusion that there was no air flow in the painters' breathing zones, that is not what the language of the standard requires.   The judge's rationale goes beyond the allegations in the citation and complaint and the requirements of the standard.

Upon review of the entire record in this case, we find that the evidence does not support the allegation that the makeup air flowing into the body shop was of lesser volume than the air being exhausted. Respondent presented a witness who testified that, if the volume of air exhausted is greater than the inflow, a vacuum will be created and the exhaust fan will vibrate and flutter.   The compliance officer testified that he did not observe the fan laboring, so there is no evidence that there was a vacuum in the body shop. We therefore vacate item 12 and the proposed penalty of $35.

Item 18 alleges that electrical wiring, boxes, fittings, and non-rigid conduits are not of the type approved for use in a spraying area and that the light fixtures in the body shop are not protected.   These conditions are alleged to constitute noncompliance with section 1910.107(c)(4), which [*17]   requires that electrical wiring and equipment in spraying areas comply with the other specific provisions in that paragraph, which include sections 1910.107(c)(5), n14 and (c)(7). n15 The testimony of the compliance officer that electrical wiring and equipment did not comply with sections 1910.107(c)(5) and (c)(7) is unrebutted.   If Respondent's body shop is a "spraying area" within the meaning of section 1910.107(a)(2), these conditions constitute a violation of the Act.

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n14 29 C.F.R. §   1910.107(c)(5) provides in pertinent part:

(5) Combustible residues, areas. Unless specifically approved for locations containing both deposits of readily ignitable residue and explosive vapors, there shall be no electrical equipment in any spraying area, whereon deposits of combustible residues may readily accumulate, except wiring in rigid conduit or in boxes or fittings containing no taps, splices, or terminal connections.

n15 29 C.F.R. §   1910.107(c)(7) provides in pertinent part:

(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.

  [*18]  

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For the following reasons, we find that Respondent's body shop is a spraying area within the meaning of the standard.   Both section 1910.107(c)(5) and 1910.107(c)(7) refer to a spraying area.   That term is defined in section 1910.107(a)(2) as: "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." We interpret that definition as meaning that a violation is proved if either dangerous quantities of flammable vapors or mists are present or if combustible residues, dusts, or deposits are found.   The testimony establishes the existence of both combustible residues and dangerous quantities of flammable vapors. Either would be sufficient to sustain a violation.

The compliance officer testified as to the heavy concentration of flammable vapors in the body shop and to the deposits of overspray on the wiring and fixtures. Respondent argues that the compliance officer's testimony is insufficient by itself to sustain a violation in the absence of scientific tests to determine the explosive [*19]   limit of the vapors and to verify that the overspray residues were in fact combustible. We disagree.   Although no tests were performed to determine the composition of the paint or the explosive limit of the spray vapors, the compliance officer's conclusions based on what he observed are probative testimony and are admissible even though he did not testify as an expert.   Fed. R. Evid. 701; Harrington Construction Corp., 76 OSAHRC    , 4 BNA OSHC 1471, 1976-77 CCH OSHD P20,913 (No. 9809, 1976).

The judge found that the body shop was shown to be a spraying area within the meaning of the standard and that Respondent violated the Act by failing to comply with the standard at 29 C.F.R. §   1910.107(c)(4).   We agree with the judge and affirm item 18.

We have reviewed the penalties assessed by the judge in light of the factors set forth in section 17(j) of the Act, 29 U.S.C. §   666(i), and we find them appropriate.

Accordingly, we modify the administrative law judge's decision in this case to hold that items 10, 11, and 18 and the penalties assessed for those items are affirmed and that items 12 and 13 and the penalties proposed for those items are vacated.   We also vacate the judge's [*20]   order with regard to item 16, as that item became a final order by operation of law for failure of Respondent to timely contest it.   So ORDERED.  

CONCURBY: BARNAKO (In Part)

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner, Concurring in Part and Dissenting in Part:

I join in Part I of the lead opinion except that, for the reasons given below, I would find item 16 to have been timely contested as well as items 10, 11, 12, and 18, and I would not review the judge's decision to vacate item 16.   With respect to the remaining items, discussed in Part IV of the lead opinion, I join in my colleagues' opinion insofar as they conclude that the judge acted properly in affirming items 10 and 11 but erred in affirming item 12.   I dissent from their decision with respect to item 18 and would vacate that item for failure of proof by the Secretary.

Item 16

The majority concludes that because Respondent did not file a written notice of contest to item 16 until the sixteenth working day after receipt of the initial citation Respondent's contest of that item is untimely.   I agree that because item 16 was not encompassed within the amended citation the period for contesting that item expired on December 26, 1975,   [*21]   the fifteenth working day after receipt by Respondent of the initial citation.   Keppel's, Inc., 79 OSAHRC 43/A2, 7 BNA OSHC 1442, 1979 CCH OSHD P23,622 (No. 77-3020, 1979).   However, unlike my colleagues I would hold that Respondent contested item 16 within the time period prescribed by the Act for the reason that Respondent's written notice of contest, one day untimely, was preceded by a timely oral notice of contest.

The record indicates that during the course of the informal conference to which my colleagues refer the area director decided that it would be necessary to contact the Secretary's Technical Support Unit in Chicago to obtain information to answer an inquiry by Respondent's president and owner, Ed Jackman, regarding the applicability provision at 29 C.F.R. §   1910.94(c)(8).   As the conference adjourned, the area director informed Jackman that he would be contacted again and given an answer to his inquiry prior to the expiration of the contest period, so that Jackman would have the opportunity to decide whether to contest based on the answer he was to be given.   Subsequently, on the final day of the contest period, December 26, the compliance officer telephoned Jackman [*22]   and informed him that his operation was not considered exempt under the provisions of §   1910.94(c)(8).   Jackman then told the compliance officer that it was his intent to contest the citation.   On the next working day, December 29 (a Monday) he filed Respondent's written notice of contest specifically contesting item 16.

In my separate opinion in Keppel's, Inc., supra, I stated that I would adhere to the rule, established in prior decisions of the Commisission, that a contest will be allowed when an oral notice of contest is timely given and is followed by a written notice of contest filed beyond the 15 working day period but without significant delay under circumstances that demonstrate that the employer has not acted in bad faith or in a dilatory manner.   See Florida Power and Light Co., 77 OSAHRC 45/B9, 5 BNA OSHC 1277, 1977-78 CCH OSHD P21,715 (No. 76-2177, 1977); Wood Products Co., 78 OSAHRC 9/C12, 4 BNA OSHC 1688, 1976-77 CCH OSHD P21,067 (No. 9206, 1976).

In the case now before us Respondent's written notice of contest including item 16 was filed on the very next working day after its oral notice of contest and was untimely by only one day.   Moreover,   [*23]   the circumstances surrounding the filing demonstrate that Respondent was acting with diligence and in good faith since its president was awaiting a response to his inquiry from the area director's office and acted quickly after receiving the response.   Accordingly, I would find that Respondent timely contested item 16.   Since neither party excepts to the judge's decision to vacate this item and there is no compelling public interest, I would not review that disposition.   See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).

Items 10, 11, and 12

I agree with the majority that the Secretary does not have to establish that a spray finishing operation produces dangerous quantities of emissions in order to prove noncompliance with the provisions set forth in 29 C.F.R. §   1910.94(c).   However, as I explained in my dissenting opinion in Westinghouse Electric Corp., 79 OSAHRC 28/B8, 7 BNA OSHC 1318, 1979 CCH OSHD P23,542 (No. 13955, 1979), petition for review filed, No. 79-1556 (7th Cir. May 24, 1979), the Secretary does have the burden to establish that a spray finishing operation within the scope of the standard [*24]   is performed in a manner which fails to comply with a specific requirement of §   1910.94(c).

The majority correctly concludes that Respondent's spray finishing operation does not come within the terms of the exemption from the standard set forth in §   1910.94(c)(8) because its equipment is used repeatedly in the same location. n1 Therefore, Respondent must comply with the requirements set forth in §   1910.94(c).

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n1 The record, however, will not support the majority's further statement that the spraying apparatus was not shown to be portable because it was powered by a source of compressed air fixed in location.   The record, on the contrary, shows that Respondent used small spray guns of one-quart capacity which can be easily moved and attached to any air compressor.   In my opinion such spray guns constitute "small portable spraying apparatus" within the meaning of the exemptory provision.

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The standard at §   1910.94(c) requires that every spray finishing operation which does not come within the exemption be enclosed or [*25]   confined in either a spray booth or spray room. n2 The requirements with which a spray finishing operation governed by the standard must comply are set forth both in the definitions of a spray booth and spray room n3 and in the detailed design and mechanical specifications for such structures contained in § §   1910.94(c) and 1910.107.

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n2 See note 13 of the lead opinion and §   1910.94(c)(2), which requires that "[s]pray booths or spray rooms are to be used to enclose or confine all operations."

n3 29 C.F.R. §   1910.107(a)(3), which is incorporated by reference in §   1910.94(c)(1)(ii), sets forth the definition of a "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." A "spray room" is defined at 29 C.F.R. §   1910.94(c)(1)(iii) as "a room in which spray-finishing operations not conducted in a spray booth are performed separately from other areas."

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Respondent [*26]   in its brief before us concedes that it does not operate a spray booth. Respondent's facility does come within the definition of a "spray room" at §   1910.94(c)(1)(iii) because operations not performed in a spray booth were conducted in a room where they were physically separated from other areas of Respondent's building.   Respondent, however, has not complied with the additional design requirements for a spray room set forth in the standards alleged to have been violated in items 10 and 11. n4 I therefore agree with the majority that those items are properly affirmed. n5

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n4 See notes 9 and 10 of the lead opinion.

n5 I agree with the majority for the reasons they state that the judge erred in concluding that Respondent failed to comply with the ventilation requirement at issue in item 12.

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Item 18

I dissent, however, from the majority's affirmance of item 18.   Whereas the provisions of §   1910.94(c) alleged to have been violated in items 10 and 11 apply to all spray finishing operations not otherwise exempted,   [*27]   the violation at issue in item 18 is alleged under a different standard, §   1910.107, and under a specific provision which by its terms applies only if a "spraying area" as defined at §   1910.107(a)(2) exists.   The majority concludes that a spraying area within the meaning of the definition exists if either combustible residues or dangerous quantities of flammable gases are present, and that the Secretary, therefore, does not have to establish that combustible residues are present in dangerous quantities. The majority also concludes that the Secretary established the existence of a "spraying area" because the compliance officer testified to the presence of both dangerous quantities of flammable vapors and combustible residues. Although I agree with my colleagues conclusion regarding the evidence necessary to satisfy the definition if a "spraying area," I do not agree that in this case the Secretary established the existence of such an area.

The compliance officer testified that at the time of the inspection Respondent was using a lacquer-based paint and lacquer thinner in its operations.   He further testified, and there is no dispute, that these substances are flammable such   [*28]   that they can be ignited if vapors are present in sufficient concentration. However, he did not testify, and there is no other evidence, as to what level of concentration would be hazardous.   Moreover, even assuming the record shows how much concentration of vapor would have to exist to produce a hazard of ignition, the compliance officer stated only that he observed "quite a large amount of fumes." He did not have an explosive meter, which, according to his testimony, is the only device by which he could have determined whether the existing concentration would be sufficient to present a hazard.   There is no evidence that he took any samples of the vapor or otherwise measured its concentration. Therefore, the Secretary failed to demonstrate that Respondent's spray finishing operation produced dangerous quantities of flammable vapors.

Similarly, although the compliance officer stated that he observed paint residue, at no time during his testimony did he state that the residue itself was combustible. Rather, he admitted that he did not take samples of the residue for laboratory analysis although he easily could have done so.   The entirety of his testimony reveals that he did not   [*29]   know whether or not the residue was combustible. n6

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n6 My colleagues completely misconstrue the record evidence concerning the compliance officer's testimony with respect to item 18.   Contrary to the finding by the majority, as noted above, the compliance officer never stated that the paint deposits were combustible. Moreover in setting forth the facts, the majority notes that the compliance officer testified that he did not take a flash picture because of the heavy concentration of vapors. However, the majority fails to note that the compliance officer further indicated that his failure to take a flash picture was a precautionary measure because he did not know, without an explosive meter, whether or not the level of vapors present in the atmosphere was hazardous.   The compliance officer's testimony therefore does not establish that dangerous quantities of flammable vapors were in fact present.   Thus my colleagues' reliance upon "a heavy concentration of flammable vapors" in concluding that a violation exists is misplaced.   Such evidence does not equate with the presence of a dangerous quantity of flammable vapors.

  [*30]  

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Accordingly, I would vacate item 18 because the Secretary did not prove that Respondent's facility constituted a spraying area and therefore failed to establish that § §   1910.107(c)(5) and 1910.107(c)(7) are applicable.   Because I would vacate on the ground of inapplicability, I express no opinion on the question whether Respondent failed to comply with the requirements of § §   1910.107(c)(5) and 1910.107(c)(7).