“SECRETARY OF LABOR,Complainant,v.GENERAL AMERICAN TRANSPORTATIONCORPORATION,Respondent.OSHRC Docket No. 79-7105_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).Former Commission Judge Erwin L. Stuller affirmed five items of acitation issued to General American Transportation Corporation(\”GATC\”). Review was directed to determine whether the judge erred inaffirming those five items. The two participating Commission membersare divided on whether the judge’s decision should be affirmed orreversed with respect to each item on review. [[1]]Item 1 of the citation alleges that oil-soaked ground and dry grass werelocated within 50 feet of a bulk oxygen storage tank, in violation of 29C.F.R. ? 1910.104(b)(3)(x).[[2]] Commissioner Cleary would affirm thejudge’s finding that the oil-soaked grass at issue was a combustiblesolid that would burn as rapidly as excelsior. The testimony at thehearing was that there was long dry grass, saturated to some extent byoil, and that it was within three feet of the pad on which the oxygenstorage tank was located. Commissioner Cleary notes that there isanother standard, at 29 C.F.R. ? 1910.104(b)(10), that covers the hazardof the proximity of grass to storage tanks. He concedes that thatstandard might also be applicable, but he would conclude that eitherstandard could have been cited. Commissioner Cleary would thereforeaffirm the judge.Chairman Buckley would conclude that the cited standard does not applyto dry grass. _See_ _Clement Food Co_., 84 OSAHRC __, 11 BNA OSHC 2120,1984 CCH OSHD ? 26,972 (No. 80-607, 1984), _pet. for rev. filed_, No.84-2229 (10th Cir. Sept. 11, 1984) (The Secretary must establish theapplicability of the cited standard as part of his _prima_ _facie_case); _Power Plant Division_, _Brown &_ _Root_, _Inc_., 82 OSAHRC40\/A2, 10 BNA OSHC 1837, 1982 CCH OSHD ? 26,159 (No. 77-2553, 1982)(same); _Belger Cartage_ _Service, Inc_., 79 OSAHRC 16\/B14, 7 BNA OSHC1233, 1979 CCH OSHD ? 23,440 (No. 76-1480, 1979) (same). The judgecorrectly concluded that the standard does not apply to oil residuesbecause oil is a liquid rather than a solid. Moreover, because \”longdry grass\” is expressly permitted at a distance of 15 feet from a bulkoxygen storage container by these standards, _see_ 29 C.F.R. ?1910.104(b)(10), it necessarily follows that long dry grass is not amongthe solid materials that must be kept at least 50 feet away from thestorage container under the standard cited by the Secretary. ChairmanBuckley would therefore vacate the item. Because the Secretary has notsought leave to amend under Fed.R.Civ.P. 15(b) and the parties did nottry the issue of a violation of other standards, Chairman Buckley wouldnot reach the question of whether a different standard applies or wasviolated. _See_ _McWilliams Forge Co_., 84 OSAHRC _____, 11 BNA OSHC2128, 1984 CCH OSHD ? 26,979 (No. 80-5868, 1984), _pet. for rev. filed_,No. 84-3587 (3rd Cir. Sept. 14, 1984).Item 2 of the citation alleges that paint spills in GATC’s paint-mixingroom were not cleaned up promptly in accordance with 29 C.F.R. ?1910.106(e)(9)(i). [[3]] Commissioner Cleary would reject GATC’sexceptions to the judge’s disposition of this item. He defers to thejudge’s credibility determination, which discredited the testimony thatpaint spills could not have been cleaned up more frequently. Theevidence is that the paint residues were quite thick and there were ragsembedded within the paint. In any event, even if the testimony reliedon by GATC were to be credited, it would not meet GATC’s burden ofproving that it was impossible to comply with the standard by cleaningup paint spills promptly. Commissioner Cleary would also affirm thejudge’s finding, based on the compliance officer’s testimony, that thecited conditions created a serious fire hazard. GATC raises no issueconcerning the applicability of the cited standard to the citedconditions. Commissioner Cleary would therefore affirm the judgewithout addressing the applicability issues raised by Chairman Buckley.In Chairman Buckley’s view, the Secretary failed to establish that thecited standard applies to the cited conditions. _See_ _Clement_ _FoodCo._, _supra_; _Power Plant Division, Brown & Root_, _supra_; _BelgerCartage Service, Inc., supra_. The standard regulates \”flammable orcombustible liquids\” as those terms are specifically and preciselydefined in the standard. _See_ 29 C.F.R. ?? 1910.106(a)(18) & (19). Whether a liquid is categorized as flammable or combustible depends onthe \”flashpoint\” of the liquid. The means to calculate the flashpoint isset forth in the standard as well. _See_ 29 C.F.R. ? 1910.106(a)(14). Here the Secretary failed to prove that the spilled paints at issue wereflammable or combustible using this calculation and the definitions inthe standard. Although the compliance officer expressed his opinionthat the spilled paints were flammable or combustible, he did notexplain the basis for his conclusory opinion and he did not testify thathe based his opinion on the definitions in the standard. Accordingly,Chairman Buckley would vacate the item.[[4]]Item 3 alleges that deposits of combustible paint residues hadaccumulated on the floors, walls, and catwalks of two paint-sprayingareas in violation of 29 C.F.R. ? 1910.107(g)(2).[[5]] CommissionerCleary concludes that the Secretary met his burden of proving that thetwo paint-spraying booths identified in the citation were \”sprayingareas\” as defined in section 1910.107(a)(2). The standard provides thatthe Secretary must show either dangerous quantities of flammable vaporsor mists _or_ that combustible residues are present due to the operationof spraying processes. The record in the case shows the existence ofconsiderable deposits of combustible residues within the two booths. Infact, it was not contested that these were spraying areas or that theresidues were combustible. In addition, Commissioner Cleary concludesthat the record established GATC’s noncompliance with the cited standardbecause (a) the cleaning schedule followed by GATC was inadequate toprevent hazardous and unnecessary accumulations of combustible residuesand (b) more frequent cleaning of the booths would have been \”practical.\”Chairman Buckley concludes that this item must be vacated because theSecretary failed to prove that the two areas at issue were \”sprayingareas,\” and therefore failed to prove that the cited standard applies tothe cited conditions. _See_ _Clement Foods Co._, _supra_; _Power PlantDivision, Brown & Root, Inc_., _supra_; _Belger Cartage Service, Inc_.,_supra_. The Secretary did not demonstrate that \”dangerous quantitiesof flammable vapors or mists\” were present. _See_ 29 C.F.R. ?1910.107(a)(2). Nor did he sustain his burden of proving, as thestandard requires, that the paint residues or deposits observed by thecompliance officer constituted \”dangerous quantities of . . .combustible residues, dusts or deposits.\” _See_ 29 C.F.R. ?1910.107(a)(2). Moreover, although some paint residues or deposits hadaccumulated in the two areas, there was no proof that the paints used byGATC were \”combustible liquids\” within the meaning of the Secretary’sstandards. Because the standards pertain only to flammable orcombustible liquids, paint residue cannot be classified as combustibleunless the paint itself is combustible as a liquid. _See_ ??1910.106(a)(14), (18) & (19). Therefore, the Secretary failed to meethis burden of demonstrating the applicability of the cited standard tothe two areas at issue and item 3 must be vacated.Item 6 of the citation contains two separate but related allegations. Subitem 6A alleges that GATC failed to immediately remove from servicea crane sling with a badly burned link and that it thereby failed tocomply with 29 C.F.R. ? 1910.184(d). Subitem 6B alleges noncompliancewith 29 C.F.R. ? 1910.184(f)(5)(i) based on GATC’s failure toimmediately remove two wire rope slings from service. These two slingseach had over 10 broken wires in one rope lay.[[6]]Commissioner Cleary would hold that the Secretary established GATC’snoncompliance with the cited standards and its violation of the Act byproving (a) that three defective slings were either in use or availablefor use and therefore not removed from service and (b) that GATC couldhave known of the defects with the exercise of reasonable diligence. With respect to subitem 6A, Commissioner Cleary would adopt the judge’sreasoning in affirming the allegation. With respect to subitem 6B,Commissioner Cleary concludes, contrary to GATC’s arguments, that theSecretary met his burden of proving (a) that the slings were availablefor use in a damaged condition and (b) that they had not been removedfrom service.Chairman Buckley agrees with GATC that the Secretary failed to proveviolations of the two cited standards. The standards require employeesto inspect slings at indicated times and to \”immediately\” remove slingsfrom service when the inspection discloses conditions warrantingremoval. The Secretary does not allege that GATC’s inspections wereinadequate or not timely. Since GATC did inspect these slings asrequired and there is no evidence even suggesting that GATC was aware ofthe defects, the Secretary did not prove that GATC violated its duty toremove the slings from service immediately upon discovery. Accordingly,Chairman Buckley would vacate the two subitems.Finally, item 7 alleges that two areas of a multi-purpose, metal-workingmachine were not guarded so as to prevent employees from having any partof their bodies in the danger zone during angle-shear and bar-shearoperations. The standard allegedly violated is 29 C.F.R. ?1910.212(a)(3)(ii).[[7]] The two Commissioners disagree as to whetherthe Secretary met his burden of proving that the angle-shear andbar-shear operations exposed the machine operator to injury. Commissioner Cleary would hold that the Secretary sustained his burdenof proving that guarding was required under the standard. There wasuncontroverted testimony that the operator of the machine could reachinto the point of operation. Chairman Buckley would vacate the item. The record establishes that theordinary work station of the machine operator is on the side of themachine where the \”feed slots\” and the foot pedal are located. Allopenings into the machine’s points of operation on this side of themachine were guarded at the time of the inspection. The unguardedopenings at issue are the openings next to the off-load tables, whichare on the right-hand side of the machine as seen by the operator fromhis normal working position. Although the openings lead to therespective points of operations, the cutting blades are set back fromthe openings, apparently as much as 41 inches behind the off-load tablesand the openings. The record indicates that it would be difficult ifnot impossible for an operator to come into contact with the cuttingblades while the machine is operating, due to the distance between theopenings and the blades, as well as the location of the openings. Onthis record, Chairman Buckley concludes that the Secretary failed toprove that either of the cited operations exposed the operator to injury.Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action canbe taken by the Commission with the affirmative vote of at least twomembers. To resolve their impasse as to the issues before theCommission on review and to permit the case to proceed to a finalresolution, Chairman Buckley and Commissioner Cleary have agreed tovacate the direction for review. _E.g_., _Texaco, Inc._, 80 OSAHRC74\/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ? 24,634 (Nos. 77-3040 & 77-3542,1980). The Commission members have discretion under the Act and theCommission’s Rules of Procedure to direct review of a judge’s decision. Section 12(j), 29 U.S.C. ? 661(i); 29 C.F.R. ? 2200.92. In the absenceof a direction for review, the judge’s decision becomes a final order ofthe Commission and can be appealed by an aggrieved party to a UnitedStates court of appeals. Sections 10(c), 11(a) and (b) and 12(j), 29U.S.C. ?? 659(c), 660(a) and (b), 661(i). The judge’s decision in thiscase therefore becomes the appealable final order of the Commission, butis accorded the precedential value of an unreviewed judge’s decision.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: OCT 5, 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386)FOOTNOTES:[[1]] As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Presently, the Commissionhas two members as a result of a vacancy.[[2]] The standard provides:? 1910.104 _Oxygen_.(b) _Bulk oxygen systems_—(3) _Distances between systems and exposures_ — (i) _General_. Theminimum distance from any bulk oxygen storage container to exposures . .. shall be as indicated in paragraphs (b)(3)(ii) to (xviii) of thissection inclusive.(x) _Highly combustible materials_. Fifty feet from solid materialswhich burn rapidly, such as excelsior or paper.[[3]] The standard provides:? 1910.106 _Flammable and combustible liquids_.(e) _Industrial plants_–(9) _Housekeeping_ — (i) _General_. Maintenance and operatingpractices shall be in accordance with established procedures which willtend to control leakage and prevent the accidental escape of flammableor combustible liquids. Spills shall be cleaned up promptly.[[4]] Chairman Buckley also notes that the cited standard is limited inits application to \”industrial plants\” where the use of flammables orcombustibles is \”only incidental\” to the business of the company. _See_29 C.F.R. ? 1910.106(e)(1). Assuming the paints are flammable orcombustible, the record does not show whether GATC’s workplace is one inwhich their use is \”only incidental\” to work done in the plant. _See__St. Regis Paper Co._, OSHRC Docket No. 77-1385 (August 28, 1984).[[5]] The standard provides:? 1910.107 _Spray finishing using flammable and combustible materials_.(g) _Operations and Maintenance_–(2) _Cleaning_. All spraying areas shall be kept as free from theaccumulation of deposits of combustible residues as practical, withcleaning conducted daily if necessary. . . .The key term \”spraying area\” is defined at ? 1910.107(a)(2) as \”[a]nyarea in which dangerous quantities of flammable vapors or mists, orcombustible residues, dusts, or deposits are present due to theoperation of spraying processes.\”[[6]] The standards provide:? 1910.184 _Slings_.(d) _Inspections_. Each day before being used, the sling and allfastenings and attachments shall be inspected for damage or defects by acompetent person designated by the employer. Additional inspectionsshall be performed during sling use, where service conditions warrant. Damaged or defective slings shall be immediately removed from service.(f) _Wire rope slings_.(5) _Removal from service_. Wire rope slings shall be immediatelyremoved from service if any of the following conditions are present:(i) Ten randomly distributed broken wires in one rope lay, or fivebroken wires in one strand in one rope lay.[[7]] The standard provides:? 1910.212 _General Requirements for all machines_.(a) _Machine Guarding_–* * *(3) _Point of operation guarding_.(ii) The point of operation of machines whose operation exposes anemployee to injury, shall be guarded. The guarding device shall be inconformity with any appropriate standards therefor, or, in the absenceof applicable specific standards, shall be so designed and constructedas to prevent the operator from having any part of his body in thedanger zone during the operating cycle.”