HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY

OSHRC Docket No. 77-242

Occupational Safety and Health Review Commission

July 30, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

Daniel W. Teehan, Regional Solicitor, USDOL

R. Donald Bistline, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Erwin L. Stuller is before the Commission pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).   Judge Stuller affirmed a citation issued to Respondent, Highway Motor Company, following an inspection of its Pocatello, Idaho worksite by a compliance officer of the Occupational Safety and Health Administration ("OSHA").   The citation alleged that the Respondent violated section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), by failing to comply with the standard at 29 C.F.R. §   1910.107(d)(5). n1 No penalty was proposed or assessed.

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n1 §   1910.107 Spray finishing using flammable and combustible materials.

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(d) Ventilation-

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(5) Electric motors. Electric motors driving exhaust fans shall not be placed inside booths or ducts. See also paragraph (c) of this section.

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The Respondent operates an automobile dealership, which includes a service area.   In the service area there is a spray booth which is used for spray painting automobiles.   Two exhaust fans are located in the exterior wall of the spray booth. Each fan is powered by an explosion proof electric motor which is placed in front of the fan and inside the booth. The fans are used to pull the combustible paint vapors out of the booth during the spray painting operations.   As the paint vapors are being exhausted, they pass over the housing of the motor.   Over a period of time, paint vapors tend to collect and dry on the housing.

At the time of the inspection, the compliance officer found that the housing on one of the fans was heavily coated with deposits of dried paint. He testified that the buildup of paint could cause the motor to overheat.   The excessive heat, he theorized, could trigger the combustible paint vapors as they pass over the housing, causing either a fire or an explosion.   He conceded that he had no knowledge of an explosion proof electric motor having ever caused such an incident.

The Respondent [*3]   contended that the paint buildup on the electric motor posed no hazard. The Respondent pointed out that no fire had ever occurred in the spray booth during the 30 years that the dealership had been in business.   The Respondent also submitted into evidence a letter from the Pocatello fire department.   In the letter, the fire inspector certified that the fan motor was qualified for use in spray booths where hazardous quantities of flammable gases and vapors may exist.   He also wrote that there was no reason to remove the motor from inside the booth.

The Judge affirmed the citation.   He found that the compliance officer's opinion that the paint buildup could trigger a fire outweighed the fact that no fire had yet taken place under such circumstances.   He therefore concluded that the paint buildup was hazardous.

The Respondent filed a petition for discretionary review of the Judge's decision. n2 The Respondent argued that the Judge erred in relying upon the compliance officer's testimony, which the Respondent characterized as "mere, unsubstantiated opinion." Instead, the Respondent urged, the Judge should have found that there was no hazard in view of the facts that no fire had ever [*4]   occurred under such circumstances and the approval of the motor by the Pocatello fire department.

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n2 Commissioner Barnako granted Respondent's petition.   Neither Respondent nor the Secretary filed a brief on review.

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We affirm the Judge's decision, although our reasoning differs from that of Judge Stuller.   The Secretary need not establish that the presence of the electric motor inside the booth was actually hazardous. The standard in issue is one which presumes the existence of a hazard in the event of noncompliance with its requirements.   See W.J. Lazynski, Inc., 79 OSAHRC    , 7 BNA OSHC 2064, 2072, 1980 CCH OSHD P24,145 at 29,336 (No. 13864, 1979); Gene L. Willison, Contractor, 77 OSAHRC 147/E11, 5 BNA OSHC 1680, 1977-78 CCH OSHD P22,026 (No. 13603, 1977); Lee Way Motor Freight, Inc., 74 OSAHRC 22/D12, 1 BNA OSHC 1689, 1973-74 CCH OSHD P17,693 (No. 1105, 1974), aff'd, 511 F.2d 864 (10th Cir. 1975). Specifically, the standard contemplates that it is hazardous for an electric motor to be placed [*5]   inside a spray paint booth. Therefore, as the Respondent has located an electric motor inside its spray booth, a prima facie violation of section 1910.107(d)(5) has been established.

Exceptions to section 1910.107(d)(5) are provided in section 1910.107(c).   However, the Respondent has not argued that its electric motor fit within any of these exceptions. n3 Moreover, we note that section 1910.107(c)(5) permits the use of electrical equipment in areas containing combustible residues only where the equipment has been specifically approved by either Underwriters' Laboratories, Inc., or Factory Mutual Engineering Corp. for use in such areas. n4 The Respondent offered no evidence that the motor in question had received the requisite approval. n5 Accordingly, we affirm the citation.   We agree with the Judge that a penalty should not be assessed.   SO ORDERED.

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n3 The burden of proving that equipment falls within an exception permitted by a standard rests with the party claiming the benefit of the exception.   Finnegan Const. Co., 78 OSAHRC 31/E3, 6 BNA OSHC 1496, 1978 CCH OSHD P22,675 (No. 14536, 1978), and cases cited therein.

n4 §   1910.107 Spray finishing using flammable and combustible materials.

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(a) Definitions applicable to this section-

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(8) Approved. Shall mean approved and listed by the following nationally recognized testing laboratories: Underwriters' Laboratories, Inc.; Factory Mutual Engineering Corp.

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(c) Electrical and other sources of ignition-

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(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.

n5 In his concurring opinion, Commissioner Cottine concludes that there are no exceptions to §   1910.107(d)(5).   He bases this conclusion, in part, on his determination that applying the exceptions provided in §   1910.107(c)(5) to §   1910.107(d)(5) would leave them indistinguishable.   This result, he states, is inconsistent with the basic principle of statutory construction that regulations should be construed so that no part will be rendered superfluous.

We disagree with our colleague's conclusion that there are no exceptions to §   1910.107(d)(5).   First, the last sentence in §   1910.107(d)(5) specifically directs the reader to paragraph 1910.107(c).   To conclude that paragraph 1910.107(c) has no impact on §   1910.107(d)(5) would render this sentence superfluous, thereby violating the very rule of construction relied on by Commissioner Cottine.   Second, Commissioner Cottine's distinction between the use of "spraying area" in §   1910.107(c)(5) and "spray booth" in §   1910.107(d)(5) is without merit.   The likelihood of an explosion occurring in a spraying area, which may lack ventilation equipment, but which, by definition, contains dangerous quantities of flammable vapors or mists or combustible residues, dust or deposits, is at least as great as in a spray booth which, by definition, is ventilated.   Therefore, logic infers that if approved electrical equipment is permissible in a spraying area, as set forth in §   1910.107(c)(5), it is also permissible in a spray booth. Finally, we find unpersuasive Commissioner Cottine's distinction between "electrical equipment" and "electric motors." As he acknowledges a "motor" is a piece of "electrical equipment." Accordingly, we conclude it is included within the terms of §   1910.107(c)(5).

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CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

I concur in affirming a violation of the safety standard published at 29 C.F.R. §   1910.107(d)(5). n1 However, the majority's conclusion is improperly supported by a finding that the Respondent failed to prove that its motor falls within the exception for "specifically approved" equipment contained in §   1910.107(c)(5). n2 Section 1910.107(d)(5) explicitly prohibits the use of electric motors in spray booths without exception and no proof of a specific approval qualifies this prohibition.

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n1 Section 1910.107(d)(5) provides:

§   1910.107 Spray finishing using flammable and combustible materials.

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(d) Ventilation.

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(5) Electric motors. Electric motors driving exhaust fans shall not be placed inside booths or ducts. See also paragraph (c) of this section.

n2 Section 1910.107(d)(5) 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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(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.

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Section 1910.107(c)(5) prohibits the use of "electrical equipment" in any "spraying area" n3 where combustible residue may accumulate, unless the equipment is specifically approved for locations containing both deposits of readily ignitable residue and explosive vapors. However, subparagraph (c)(5) does not mention either "electric motors" or "spray booths." n4 In contrast, subparagraph (d)(5) prohibits the use of "electric motors" in "spray booths." It is a basic principle of statutory construction that where a term has been carefully employed in one place and excluded in another, the term cannot be implied where it has been excluded.   Federal Trade Commission v. Sun Oil Co., 371 U.S. 505, 514-15 (1963); Diamond Roofing Co., Inc. v. OSAHRC, 528 F.2d 645, 648 (5th Cir. 1976); 2A SUTHERLAND STATUTORY CONSTRUCTION §   47.23 at 123 (4th ed. 1973).   There is no indication in the record, the OSHA standards, or the source standards that "spraying areas" and "spray booths" present the same hazards or are intended to be read synonymously. n5 Accordingly, it is erroneous to conclude that the subparagraph [*8]   specifically applicable to spraying areas, §   1910.107(c)(5), applies to spray booths as well when another subparagraph specifically addresses spray booths.

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n3 Section 1910.107(a)(2) defines a "spraying area" as any area in which dangerous quantities of combustible vapors or residues are present due to spraying operations.

n4 Section 1910.107(a)(3) defines a "spray booth" as a power ventilated structure specifically designed to confine combustible vapors and residues and to direct them to an exhaust system.

n5 To the contrary, the source standards and the accompanying explanatory notes suggest that a separate regulatory treatment is intented.   See discussion infra.

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Reading §   1910.107(c)(5) in conjunction with related standards also leads to the conclusion that the term "electric motors" was intentionally excluded from §   1910.107(c)(5).   Although in common usage a "motor" may be considered a piece of electrical equipment, the term "motor" is specifically employed in some provisions of §   1910.107 and excluded in [*9]   others.   Section 1910.107(d)(5) explicitly prohibits "motors" from spray booths. In contrast, §   1910.107(c)(5) specifies that only approved "electrical equipment" may be used in spraying areas.   Moreover, under §   1910.107(c)(6) "[e]lectrical wiring, motors, and other equipment" (emphasis added) must be nonspark producing if they are located outside but within 20 feet of a spraying area.   In light of the specific inclusion of "motors" in §   1910.107(c)(6) and (d)(5), it is apparent that the omission of "motors" from §   1910.107(c)(5) indicates that motors were not intended to fall under the exceptions contained in §   1910.107(c)(5).   This regulatory scheme represents a progression from the prohibition of "motors" in spray booths [(d)(5)] to limitations on other than specifically approved "electrical equipment" in spraying areas [(c)(5)] to a specification requirement for "electrical wiring, motors, and other equipment" in the 20 foot area surrounding a spraying area.

The conclusion that the cited standard is without exception is supported by the source standards for 29 C.F.R. §   1910.107.   Section 1910.107(d)(5) is derived from §   506 of NFPA No. 33-1969: Standard for Spray Finishing [*10]   Using Flammable and Combustible Materials. n6 Section 506 cross-references Chapter 4 of NFPA No. 33-1969 as §   1910.107(d)(5) cross-references §   1910.107(c).   Although §   405 of Chapter 4 permits the presence of "specifically approved" electrical equipment in spraying areas, n7 the notes to Chapter 4 clearly state that electric motors are not permitted in spray booths:

From the above Section 405 it will be noted that in general electrical equipment is not permitted inside any spray booth, in the entrained air of an exhaust system from a spraying operation or in the direct path of spray, unless such equipment is specifically approved for both readily ignitable deposits and flammable vapor. At present no such equipment is approved by a nationally recognized laboratory.   Electric motors driving exhaust fans are specifically prohibited inside spray booths and exhaust ducts under Section 506.

NFPA No. 33-1969: Standard for Spray Finishing Using Flammable and Combustible Materials, ch. 4, n.2 (emphasis added).

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n6 Chapter 5.   VENTILATION.

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§   506.   Electric motors driving exhaust fans shall not be placed inside booths or ducts. (See also Chapter 4).

n7 Chapter 4.   ELECTRICAL AND OTHER SOURCES OF IGNITION.

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§   405.   Unless specifically approved for locations containing both deposits of readily ignitible residue and explosive vapors, there shall be no electrical equipment in any spraying area, as herein defined, 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.

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Moreover, if electric motors and spray booths were subject to the exception contained in §   1910.107(c)(5), the more restrictive standard set forth at §   1910.107(d)(5) would be superfluous. Construed in the manner suggested by the majority opinion, §   1910.107(d)(5) contains no requirement or prohibition different than that contained in §   1910.107(c)(5).   This interpretation is inconsistent with the basic principle that a regulation should be construed to give effect to all of its provisions so that no part will be rendered superfluous. 2A SUTHERLAND STATUTORY CONSTRUCTION §   46.06 at 63 (4th ed. 1973).

Accordingly, the majority errs in ruling that §   1910.107(c) provides exceptions to §   1910.107(d)(5).   Nevertheless, because the evidence establishes that two electric motors driving exhaust fans were located inside the Respondent's spray booth, I join the majority in affirming the citation without a penalty.