AMERICAN STEEL WORKS

OSHRC Docket No. 77-553

Occupational Safety and Health Review Commission

March 31, 1981

[*1]

Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

W. F. Grindley, Vice Pres., American Steel Works, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Paul E. Dixon is before the Commission for review under section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision Judge Dixon, among other things, vacated a citation alleging that Respondent, American Steel Works, was in repeated violation of the Act for failure to comply with the standard at 29 C.F.R. 1910.107(b)(5)(i). n1 The Secretary of Labor ("the Secretary") petitioned for review of the decision, excepting to the judge's vacating of the citation for repeated violation. Acting Chairman Barnako directed this case for review on the issues raised in the Secretary's petition. For the reasons that follow, we conclude that Respondent was in violation of the Act and the violation was repeated.

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n1 The standard provides:

1910.107 Spray finishing using flammable and combustible materials.

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(b) Spray booths --

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(5) Dry type overspray collectors -- (exhaust air filters). In conventional dry type spray booths, overspray dry filters or filter rolls, if installed, shall conform to the following:

(i) The spraying operations except electrostatic spraying operations shall be so designed, installed and maintained that the average air velocity over the open face of the booth (or booth cross section during spraying operations) shall be not less than 100 linear feet per minute. Electrostatic spraying operations may be conducted with an air velocity over the open face of the booth of not less than 60 linear feet per minute, or more, depending on the volume of the finishing material being applied and its flammability and explosion characteristics. Visible gauges or audible alarm or pressure activated devices shall be installed to indicate or insure that the required air velocity is maintained. Dry spray booths equipped with a filter roll which is automatically advanced when the air velocity is reduced to that specified in this subdivision should be arranged to cause shutdown of spraving operations if the filter roll fails to advance automatically. Maintenance procedures should be established to assure replacing filter pads before excessive restriction to airflow occurs. Filter pads should be inspected after each period of use and clogged filter pads discarded and replaced. Filter rolls shall be inspected to insure proper replacement of filter media. [Emphasis added].

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I

Respondent manufactures steel products at its plant in Kansas City, Missouri. On September 4, 1973, an Occupational Safety and Health Administration ("OSHA") compliance officer inspected this facility. Following that inspection, the Secretary issued Respondent a citation alleging an other than serious violation of the Act based on noncompliance with section 1910.107(b)(5)(i). Specifically, the citation alleged that Respondent's spray paint booth had no "visible gauges, audible alarms, or pressure activated devices to insure that required air velocity is maintained across open face of booth . . . ." The citation was uncontested and became a final order of the Commission. To abate the violative condition, Respondent employed a company that installed an air filtration system and a gauge in the painting booth.

OSHA again inspected Respondent's facility on February 8, 1977. During that inspection, compliance officer Garvin Pyron observed paint residue in the spray painting booth and Respondent's vice president, W. F. Grindley, told him that an employee used the booth an average of one or two hours [*3] each day. When Pyron noticed that the booth had no gauge for measuring air velocity across the filters, Grindley told Pyron that the filtration company had removed the gauge for replacement or repair. According to Grindley's subsequent statements at the hearing, the firm that installed the filtration system was unable to make the gauge work.

As a result of the February 1977 inspection, the Secretary cited Respondent for repeated n2 noncompliance with section 1910.107(b)(5)(i) and proposed a $70 penalty. Respondent timely contested the citation and the proposed penalty. During the inspection, compliance officer Pyron had told Grindley that Respondent could bring the spray booth into compliance by making and installing a simple U-tube manometer capable of indicating air pressure. Subsequently, Respondent informed the Secretary that on February 17, 1977 -- nine days after the inspection -- it had installed a manometer as suggested by Pyron. With this device, Pyron later testified, Respondent corrected the violative condition in the spray booth.

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n2 Section 17(a) of the Act, 29 U.S.C. 666(a), provides that "[a]ny employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation."

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According to compliance officer Pyron's testimony, the purpose of a visible gauge, audible alarm, or pressure activated device in a painting booth is to indicate improper air circulation and clogged air filters. Insufficient airflow, Pyron explained, increases the possibility of fire and operator inhalation of fumes.

At the hearing, Grindley discussed Respondent's efforts to install an air filtration system and the inability of the installer to supply an operable gauge for the booth. Grindley surmised that substances used in the booth such as epoxies, modified phenolics, enamels, lacquers, and digemastics, rendered impractical any instrument for measuring air velocity. In addition, Grindley asserted that Pyron told him that the air velocity measuring device "did not have to work, it just had to be an instrument existing to show that [Respondent] made an effort to measure the differential air pressure [because] the law does not say anything about the thing has [sic] to work." In response, Pyron denied that he had made such a statement. Pyron further denied saying either that the paint made such an [*5] instrument impractical or that, if Respondent had simply kept the inoperable gauge in the booth, it would have sufficed.

In his decision vacating the Secretary's citation, Judge Dixon found that "uncontroverted evidence" established that the filter company employed by Respondent could not install an operable filter system because of materials such as "phonolics [sic], enamels, lacquers, along with digemastics" used in Respondant's spraying operation. He also noted that Respondent, on being informed of a method of compliance, "immediately fabricated and installed" a U-tube manometer as suggested by the compliance officer. The judge concluded "that it would be exceedingly unfair to find respondent in repeat violation under the cited standard, when those persons having expertise in the field are incapable of providing a filter airflow system to satisfy the standard." Furthermore, the judge found that it was "only through the efforts of the compliance officer" that Respondent brought itself into compliance with the standard "immediately upon being appraised of an alternative method of measuring airflow." In view of these findings, the judge further concluded that "this case clearly [*6] falls within the line of cases where, respondent in exercising its best efforts to accomplish abatement was met with lack of feasibility on [the] part of those persons possessing expertise in the field of airflow and filtration," citing Horne Plumbing & Heating Co. v. OSHRC & Dunlop, 528 F.2d 564 (5th Cir. 1976).

II

The Secretary asserts on review that the judge erred in vacating the citation for repeated noncompliance with section 1910.107(b)(5)(i). The Secretary first argues that he established a prima facie case of noncompliance with the standard because (1) Respondent's spray booth did not have the required gauge, alarm, or other device to measure air velocity; (2) Respondent's admission that the booth was used one or two hours each day established employee exposure; and (3) testimony about the increased possibility of fire and of employee inhalation of fumes due to the absence of a device to measure air velocity established the existence of a hazard. In addition, the Secretary alleges that a repected violation is established because Respondent's failure to contest the previous citation for noncompliance with the same standard is uncontroverted.

The Secretary strenuously [*7] asserts that Respondent has failed to raise a cognizable defense to the citation with the argument that it contracted for a suitable device to measure air velocity but the device proved inaccurate and had to be removed. In the Secretary's view, Respondent did not establish the affirmative defense of impossibility of compliance because a means of compliance was shown to exist. Furthermore, the Secretary asserts that, contrary to Commission precedent, the judge improperly tried to "wed" elements of the impossibility of compliance defense with the unpreventable employee misconduct defense. According to the Secretary, the judge incorrectly relied on Horne Plumbing & Heating Co. v. OSHRC & Dunlop, supra, an unpreventable employee misconduct case, as representing a "line of cases" related to an employer's supposed ability to delegate compliance responsibility under the Act to a third party.

The Secretary adds that the record does not support the judge's finding that Respondent made its "best efforts" to correct the violative condition by employing "knowledgeable" persons "possessing expertise in the field of airflow and filtration" because no testimony was offered concerning [*8] the expertise or reputation of the air filtration company. Moreover, the Secretary contends, there is no support in the record for the judge's finding that "it was only through the . . . compliance officer that respondent could [Secretary's emphasis]" achieve abatement because there is no evidence that Respondent contacted other companion or engineers. Thus, the Secretary asks that the Commission reverse the judge's decision and affirm the citation.

In a letter filed in lieu of a brief, n3 Respondent argues that the judge properly vacated the citation because it had established a "cognizable affirmative defense." Respondent reasserts its contention that a gauge was purchased and installed but the device did not work. According to Respondent, it made its "[b]est efforts to accomplish abatement." It also urges that a hazard is not proved merely because an instrument to measure spray booth conditions was unavailable. In addition, Respondent charges that the Secretary, in his brief, indicates that the air measuring device need not operate correctly as long as it is installed.

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n3 Following Respondent's submission of its letter in lieu of a brief, the Secretary filed a motion to strike Respondent's letter. According to the Secretary, the "letter reply is little more than a belated attempt to supplement the evidence of record with out-of-court statements." We denied the Secretary's motion to strike Respondent's letter. We will consider Respondent's arguments in the letter that are based on facts of record. Under Commission Rule 93(a), 29 C.F.R. 2200.93(a), "a party may file a letter setting forth its arguments instead of filing a brief." However, we must ignore any facts alleged in Respondent's letter that are unsupported by the hearing record. To decide otherwise would deprive the Secretary of an opportunity for cross-examination and the presentation of rebuttal evidence. See Schley v. Pullman's Palace Car Co., 120 U.S. 575, 578 (1887); Williams Enterprises, Inc., 79 OSAHRC 4/B4, 7 BNA OSHC 1015, 1979 CCH OSHD P23,279 (No. 14748, 1979). In addition, we find that Respondent had an opportunity to raise its "new" factual allegations in timely fashion at the hearing. For these reasons, we are not considering, for example, the following allegations raised only in Respondent's post-hearing letter: that the U-tube manometer was "worthless"; that Respondent contacted "all local" air filtration companies; that Respondent wrote an air filtration manufacturer several times; and that, given frequent filter changes, any hazard in the booth is "inconceivable".

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III

In this case, it is undisputed that Respondent's spray painting booth was not equipped with a visible gauge, an audible alarm, or a pressure activated device to insure maintenance of proper air velocity as required by section 1910.107(b)(5)(i). In addition, the compliance officer testified that, without such a device, a hazard was created due to an increased possibility of fire and of operator inhalation of fumes. n4 Respondent's admission that the booth was used by an employee one or two hours each day, on the average, and the compliance officer's observation that there was paint residue in the booth establish employee exposure to the cited condition. See Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P 23,135 (No. 16057, 1978) (lead opinion and concurring and dissenting opinion). Accordingly, we conclude that the Secretary established a prima facie violation of the Act based on noncompliance with the cited standard.

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n4 Respondent contends on review that the Secretary failed to prove the existence of a hazard simply by showing that there was no device for measuring air velocity in the spray booth. The compliance officer's testimony, however, established a hazard here. In addition, it is well settled that the Secretary need not prove the existence of a hazard each time a standard is enforced, unless the standard by its terms is operative only when a hazard has been established. Generally, the promulgation of a standard presupposes the existence of a hazard when its terms are not met. See, e.g., Greyhound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir. 1978); Del-Cook Lumber Co., 78 OSAHRC 14/A2, 6 BNA OSHC 1362, 1978 CCH OSHD P22,544 (No. 16093, 1978).

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Respondent's challenge to the Secretary's citation is related to an affirmative defense recognized under Commission precedent: impossibility of compliance. To establish this defense, the employer must prove that (1) compliance with the requirements of the cited standard would be functionally impossible and (2) alternative means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979).

We conclude that an impossibility of compliance defense is not sustained by the record in this case. Indeed, the record establishes that after the citation was issued Respondent complied with the cited standard by installing a simple U-tube manometer in its painting booth. n5 The availability of a method of compliance requires our rejection of the defense of impossibility of compliance. See Masonry Contractors, Inc., 80 OSAHRC 28/A2, 8 BNA OSHC 1155, 1980 CCH OSHD P24,338 (No. 76-2902, 1980); Martin-Tomlinson Roofing Co., 80 OSAHRC 4/B12, 7 BNA OSHC 2122, 1980 CCH OSHD P24,167 (No. 76-2339, 1980). Respondent asserts [*11] that an air-measuring device is impractical in the painting booth because of the enamels, lacquers and other substances used in the booth. Respondent's ability to fabricate and install a conforming manometer belies this assertion. Therefore, we reject this contention. n6

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n5 In its letter to the Commission, Respondent asserts that the U-tube manometer that it installed proved to be "worthless." This contention is not supported by any evidence of record and is therefore not considered. See note 3 supra. The judge found that Respondent brought itself into compliance with the cited standard following the inspection. This finding is supported by the uncontroverted testimony of the compliance officer. Accordingly, we accept the judge's finding.

n6 In vacating the Secretary's citation, the judge stated that Respondent made "its best efforts to accomplish abatement" and "was met with lack of feasibility on [the] part of those persons possessing expertise in the field of airflow and filtration." We interpret this reasoning as a conclusion that Respondent sustained an impossibility of compliance defense and, for the reasons noted above, we reject this determination by the judge. In addition, we find that the judge erred in citing Horne Plumbing Co. v. OSHRC & Dunlop, supra, as representative of a "line of cases" supporting Respondent's defense. The Horne decision dealt with the accountability of an employer for employee misconduct and did not pertain to the impossibility of compliance defense.

[*12]

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The Secretary cited Respondent for a repeated violation under section 17(a) of the Act. Under Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD P23,294 (No. 16183, 1979), a violation is repeated "if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation." 7 BNA OSHC at 1063, 1979 CCH OSHD, at p. 28,171. In this case, it is uncontroverted that Respondent was previously cited for noncompliance with the same standard at the same workplace. Moreover, the prior violation was clearly substantially similar to the violation now before us. In addition, the earlier citation became a final order of the Commission before the issuance of the present citation. Accordingly, we find that the Secretary established a repeated violation. n7

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n7 Acting Chairman Barnako's test for establishing a repeated violation differs from that applied by his colleagues. Potlatch Corp., supra (concurring and dissenting opinion). Applying his own test, he agrees that the Secretary established substantial similarity here because both citations concerned the lack of a visible gauge, audible alarm, or a pressure activated device in the same spray booth and noncompliance with the same standard.

In Acting Chairman Barnako's view, however, an employer should be able to defend against an alleged repeated violation by demonstrating that it made good faith efforts after the entry of a final order to prevent the recurrence of a substantially similar violation. Because this case was tried prior to the issuance of Potlatch Corp., supra, Respondent was not on notice as to the good faith efforts defense. Such a defense has not been established on the record as it currently exists because, more than three years after the initial citation, Respondent still had not provided a suitable device to bring its spray booth into compliance. During this time, Respondent relied primarily, if not solely, on the unsuccessful efforts of a single company, the expertise of which is not established. In Acting Chairman Barnako's view, an employer acting in good faith to eliminate the hazardous condition would have made additional efforts to locate or develop a means of complying with the requirement of the standard. Nevertheless, Respondent's post-hearing letter indicates that it could introduce additional evidence relevant to its efforts, following the initial citation, to prevent recurrent noncompliance with the cited standard. See note 3 supra. Therefore, Acting Chairman Barnako would enter a conditional order, affirming the citation as repeated, but affording Respondent 10 days from the issuance of this decision to move that the case be reopened for the taking of additional evidence as to the steps it took after the first citation became a final order to prevent the occurrence of a substantially similar violation.

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We recognize that Respondent is entitled to credit for good faith in its efforts, albeit unsuccessful, to comply with the cited standard. We have considered Respondent's good faith as well as its size, its history of prior violations and the gravity of the violation at issue, as required under section 17(j) of the Act, 29 U.S.C. 666(i). n8 In view of these considerations, we assess a $70 penalty as proposed by the Secretary. We conclude that this penalty is appropriate under the circumstances of this case.

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n8 Section 17(j) of the Act provides that:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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Accordingly, we set aside the judge's decision, affirm the [*14] Secretary's citation for a repeated violation of the Act, and assess a penalty of $70. SO ORDERED.