“SECRETARY OF LABOR,Complainant,v.SIMPLEX TIME RECORDER COMPANY,Respondent.OSHRC Docket No. 82-0012_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.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).Simplex Time Recorder Company manufactures time equipment and buildingmanagement systems at its Gardner, Massachusetts plant. Following afire on August 6, 1981, which resulted in the death of an employee, theSecretary on December 10, 1981 issued several citations to Simplex, oneof which, citation 2, alleged that Simplex had committed willfulviolations within the meaning of section 17(a) of the Act, 29 U.S.C ?666(a). Item 3 of citation 2, as amended, alleged that during theperiod from six months prior to the date of the citation through \”on orabout\” the date of the fire [[1]] Simplex was using a lacquer thinnerwith a flash point of four degrees Fahrenheit to clean the floor of aspray booth, contrary to 29 C.F.R. ? 1910.107(g)(5). The standard states:? 1910.107 _Spray finishing using flammable and combustible materials_.(g) _Operations and maintenance_–(5) _Cleaning solvents_. The use of solvents for cleaning operationsshall be restricted to those having flashpoints not less than 100? F.;however, for cleaning spray nozzles and auxiliary equipment, solventshaving flashpoints not less than those normally used in spray operationsmay be used. Such cleaning shall be conducted inside spray booths andventilating equipment operated during cleaning.Simplex contends that the citation must be vacated because section1910.107(g)(5) was not validly promulgated. Administrative Law JudgeRichard DeBenedetto rejected Simplex’s contention that the Secretary hadnot validly promulgated this standard. He found Simplex in violation ofthe standard and held that the violation was willful. For the reasonsthat follow, we conclude that the judge properly upheld the standard asvalidly promulgated, but we reverse his decision finding the violationwillful._The validity of section 1910.107(g)(5)_29 C.F.R. ? 1910.107(g)(5) was adopted in 1971 when the Secretarypromulgated Part 1910, containing occupational safety and healthstandards issued under section 6(a) of the Act. [[2]] 36 Fed. Reg. 10466(1971). It was derived from section 808 of NFPA No. 33–1969, _Standardfor Spray Finishing Using Flammable and Combustible Materials_, anational consensus standard published by the National Fire ProtectionAssociation (\”NFPA\”). 29 C.F.R. ? 1910.115. Section 808 of the NFPAstandard states in part:Solvents for cleaning purposes should, where practical, preferably be ofa type that will not burn.The use of solvents for cleaning operations shall be restricted to thosehaving flash points not less than 100 degrees F.; however, for cleaningspray nozzles and auxiliary equipment, solvents having flash points notless than those normally used in spray operations may be used.Such cleaning shall be conducted inside spray booths and ventilatingequipment operated during cleaning.When the Secretary adopted section 1910.107(g)(5), he deleted the firstparagraph of section 808, \”[solvents] for cleaning purposes should,where practical, preferably be of a type that will not burn.\”[[3]] Thisdeletion was consistent with the preamble to the new Part 1910, in whichthe Secretary stated that:The national consensus standards are occupational safety and healthstandards adopted and promulgated either by the American NationalStandards Institute (ANSI) or by [NFPA] under procedures where it can bedetermined that persons interested and affected by the scope orprovisions of the standards have reached substantial agreement on theiradoption . . . . The national consensus standards contain only mandatoryprovisions of the standards promulgated by those two organizations. Thestandards of ANSI and NFPA may also contain advisory provisions andrecommendations the adoption of which by employers is encouraged, butthey are not adopted in Part 1910.36 Fed. Reg. 10466.Because section 6(a) authorized the Secretary to adopt nationalconsensus standards without regard to the notice and comment rulemakingprocedures otherwise prescribed by section 6(b) and the AdministrativeProcedure Act, 5 U.S.C. ? 553, national consensus standards adoptedunder section 6(a) could not be substantively modified. _Diebold, Inc.v. OSHRC_, 585 F.2d 1327, 1332 (6th Cir. 1978); _George C. Christopher &Son, Inc_., 82 OSAHRC 9\/A2, 10 BNA OSHC 1436, 1442-43, 1982 CCH OSHD ?25,956, pp. 32,530-31 (No. 76-647, 1982). Simplex claims that thedeletion of the first paragraph of section 808 substantively altered theNFPA source standard and therefore was impermissible under section 6(a)of the Act. Judge DeBenedetto rejected the argument on the ground thatthe change in language had no substantial effect on Simplex’s duty. Weagree.[[4]]The first paragraph of NFPA section 808 generally advises employers thatto the extent \”practical\” for cleaning purposes they should avoid usingsolvents that will burn. Clearly, this provision does not prohibit anemployer from using flammable or combustible solvents. The secondparagraph, moreover, by its plain terms expressly allows employers touse solvents having a flash point [[5]] of less than 100 degreesFahrenheit for cleaning spray nozzles and auxiliary equipment, providedthat the employer also uses solvents of such flash point in itsproduction operations. At the same time, however, the second paragraphspecifically prohibits an employer under any circumstances from usingsolvents with a flash point less than 100 degrees for other cleaningpurposes. In order for the two paragraphs to be read together as aharmonious whole, [[6]] we conclude that both are directed at the sameobjective, namely, the reduction or the hazards presented by the use offlammable or combustible solvents for cleaning purposes. The firstparagraph essentially prescribes this objective. The second paragraphelaborates on and more fully explains how an employer must satisfy thegeneral admonition set forth in the first paragraph by specifying theprecise circumstances under which an employer shall or shall not usesolvents of particular flash points in cleaning operations. Accordingly, the two paragraphs are consistent with each other, [[7]]but the substantive requirements applicable to cleaning operations areimposed by the second paragraph. Clearly, under NFPA section 808 anemployer is required to comply with the specific restrictions on the useof flammable solvents even though the language of the first paragraph isnot mandatory. [[8]] It necessarily follows, then, that the Secretary’sdeletion of the first paragraph of NFPA section 808 had no effect on thesubstantive provisions of the standard. In this case, Simplex’sobligation to ensure that the flammable solvent it was using forcleaning the floors of its spray booths had a flash point of at least100 degrees is the same under both the NFPA source standard and section1910.107(g)(5) as ultimately promulgated by the Secretary. Therefore,by deleting the first paragraph of the NFPA standard, the Secretary didnot impermissibly modify that standard. _Cf_. _Noblecraft Industries,Inc._, 75 OSAHRC 5\/A2, 3 BNA OSHC 1727, 1732, 1975-76 CCH OSHD ? 20,168,p. 24,002 (No. 3367, 1975), _aff’d_, 691 F.2d 199, 203-04 (9th Cir.1980) (Section 6(a) does not require the Secretary to adopt anexplanatory and discretionary \”headnote\” to a national consensus standard)._Alleged willfulness of violation of section 1910.107(g)(5)_This violation is based on Simplex’s practice of using a solvent havinga flash point of four degrees to clean paint deposits on the floor of aspray booth. Simplex’s employees would allow approximately one-halfgallon of solvent to accumulate on the floor of the spray booth in thearea of paint deposits. Once the solvent had softened the paint,employees would scrape off the residue. Use of the solvent in thismanner was discontinued on or about August 6, 1981, when a fire occurredin one of Simplex’s electrostatic spray booths.[[10]] The record doesnot indicate for how long employees had been cleaning spray booth floorswith the solvent prior to this fire. Although another fire had occurredin one of Simplex’s automatic spray booths on March 23, 1981, FactoryMutual, one of Simplex’s insurance carriers, attributed the earlier fireto an electrical short igniting paint overspray deposits. As a result,Factory Mutual recommended that Simplex clean the walls and floors ofits spray booths on a weekly basis. At about the same time, Whitman, anemployee who had been assigned to redesign the spray finishing area toincrease its efficiency and reduce the amount of paint deposits, alsorecommended improved cleaning procedures. Neither Factory Mutual norWhitman specified the type of cleaner to be used. In response, Simplexdid initiate a cleaning program consisting of weekly cleanup of theentire area of the booths and daily cleanup of painting equipment. Supervisors were also required to complete log sheets, which weresubmitted to higher management, indicating that the prescribed cleaninghad been conducted.Tremblay, Simplex’s safety engineer, testified that although he wouldperiodically examine the conditions in the spray booths, and wasgenerally aware that paint thinner having a flash point of four degreeswas used during production operations, he did not know, prior to theAugust 1981 fire, that solvent was being used for cleaning purposes. Meunier, Simplex’s painting supervisor, was aware that equipment and thefloors in spray booths were being cleaned with solvent, but did not knowthe flash point of the solvent used. Tremblay, but not Meunier, wasgenerally aware of the OSHA standards, including section 1910.107.In addition to investigating the fires which had occurred in Simplex’sfacility,[[10]] its two insurance carriers also conduct regular andperiodic inspections of the plant. One carrier makes monthlyinspections. The other inspects two times per year, and each of theseinspections lasts between two and-a-half and three days. Eachproduction area of Simplex’s plant also has an employee safety committeewhich meets monthly and reports in writing its recommendations for thecorrection of hazards. It is Simplex’s policy to implement theappropriate corrective action when recommended by employee committees. Furthermore, prior to the August 1981 fire and the resulting inspectionby the Secretary, Simplex had requested that the state authoritiesconduct a plant-wide health and safety evaluation. Following thisinspection, which was conducted over a four-to-five month period andincluded the painting area, the state inspectors identified somepossible violations of OSHA standards, which Simplex instructed itsmanagers and supervisors to correct. There is no indication that eitherSimplex’s insurance carriers, employee committees or the stateinspectors ever notified Simplex’s management that a flammable solventwas improperly being used for cleaning the floors of spray booths orinformed Simplex that certain solvents could not be used for thispurpose. Indeed, Whitman, Simplex’s employee with approximately 15years experience in painting operations, whom Simplex regarded as one ofits employees most knowledgeable about spray finishing, considered thesolvent safe when used for cleaning. Similarly, Simplex had neverbefore been cited for a violation of 29 C.F.R. ? 1910.107(g)(5) althoughthe Secretary had inspected it on nine prior occasions.To establish that a violation was willful, the Secretary must show thatit was committed voluntarily with either an intentional disregard forthe requirements of the Act or plain indifference to employee safety. _See_, _e.g_., _D.A. & L. Caruso, Inc._, 84 OSAHRC, 11 BNA OSHC 2138,2142, 1984 CCH OSHD ? 26,985, p. 34,694 (No. 79-5676, 1984); _DuquesneLight Co_., 84 OSAHRC 23\/D2 11 BNA OSHC 2033, 2040, 1984 CCH OSHD ?26,959, p. 34,603 (No. 79-1682, 1984); _Mobil Oil Corp_., 83 OSAHRC47\/B6, 11 BNA OSHC 1700, 1983 CCH OSHD ? 26,699 (No. 79-4802, 1983).The Secretary contends that the violation was willful because Simplex’ssupervisors knew that solvent having a flash point of four degrees wasused for cleaning spray booth floors and disregard the \”obvious hazard\”of using a flammable liquid in a spray booth where the possibility ofignition exists. The Secretary also contends that Simplex actually knewof the requirements of 29 C.F.R. ? 1910.107(g)(5), because Tremblay wasaware of the standards pertaining fire prevention in spray booths.We do not believe the record supports the Secretary’s contention thatSimplex was aware that solvent having a flash point of less than 100degrees was being used improperly for cleaning the floors of spraybooths. Meunier stated without contradiction that he was not aware ofthis usage. Insofar as Tremblay’s knowledge is concerned, theSecretary relies, as did the judge, on the testimony of Mace, a statefire investigator, who testified that Tremblay told him he knew of thepractice. As Simplex points out, however, Mace’s testimony does notclearly establish when Tremblay first became aware that solvent wasbeing improperly used for cleaning floors. Therefore, Mace’s testimonydoes not contradict Tremblay’s repeated denial that he knew of thepractice prior to the August 1981 fire. [[11]]There is, of course, no dispute that Tremblay was aware that a solventhaving a flash point of four degrees was used during other sprayfinishing operations. However, we cannot agree with the Secretary thatsuch use constitutes an \”obvious hazard\” to which Tremblay consciouslyallowed employees to be exposed. On the contrary, the standard by itsplain terms permits an employer generally to use solvents having a flashpoint of less than 100 degrees in spraying operations, as Simplex did. Moreover, it permits such solvents to be used for certain cleaningoperations as well, specifically for cleaning painting apparatus. Accordingly, the mere fact that Simplex allowed this solvent to be usedin spray booths with the knowledge of its supervisor is not sufficientin itself to demonstrate that Simplex acted in disregard of the Act orwas indifferent to employee safety. Absent facts showing such disregardor indifference, Simplex’s failure to comply with the standard’srestrictions on the use of solvents for cleaning purposes clearly cannotbe characterized as willful simply because Tremblay was generallyfamiliar with section 1910.107 and may have known of section1910.107(g)(5) in particular. _See_ _Wright & Lopez, Inc._, 80 OSAHRC36\/A2, 8 BNA OSHC 1261, 1265, 1980 CCH OSHD ? 24,419, p. 29,777 (No.76-3743, 1980).Furthermore, the evidence affirmatively demonstrates that Simplex wasnot indifferent to employee safety and that, indeed, it was seriouslyconcerned with developing proper cleaning procedures for its spraybooths. Moreover, despite numerous inspections, Simplex at no time wasever advised by its insurers, its employees, the state authorities, orthe Secretary, of any improper use of solvent in its spray booths or ofthe restrictions on such use. Certainly, an employer is required tocomply with a standard regardless of whether it has previously beeninformed that a violation exists. _Columbian Art Works, Inc_., 81OSAHRC 96\/F5, 10 BNA OSHC 1132, 1981 CCH OSHD ? 25,737 (No. 78-29,1981). However, simple failure to discover or eliminate a violation isnot sufficient to demonstrate that the violation is willful in nature. _Marmon Group, Inc_., 84 OSAHRC _______, 11 BNA OSHC 2090, 1984 CCH OSHD? 26,975 (No. 79-5363, 1984), and cases cited therein. _See_ _TransWorld Airlines, Inc. v. Thurston_, 105 S.Ct 613, 626 (1985). _MositesConstruction Co_., 81 OSAHRC 40\/A2, 9 BNA OSHC 1808, 1981 CCH OSHD ?25,357 (No. 78-50, 1981). Accordingly, in the circumstances here, weconclude that the violation cannot be found willful.[[12]]Since the Secretary alleged the violation was willful in nature butfailed to prove willfulness, we must now determine whether to affirm theviolation as serious or other than serious in nature. _See_ _CrawfordConstruction Co_., 82 OSAHRC 10\/A2, 10 BNA OSHC 1522, 1526, 1982 CCHOSHD ? 25,984, p. 32,607 (No. 79-928, 1982), _rev’d on other grounds_,718 F.2d 1098 (6th Cir. 1983) (unpublished). The Secretary presents noother argument regarding the proper characterization of the violation,and does not contend that the violation should be found serious undersection 17(b) of the Act, 29 U.S.C. ? 666(b), if not found willful.However, due to the evident seriousness of the violation, as shown bythe death of an employee, we will affirm the citation item as seriousunder section 17(b), 29 U.S.C. ? 666(b). In the circumstances, andtaking into account as well Simplex’s good faith as indicated by itsoverall interest in employee safety, we conclude that a penalty of $400is appropriate.Accordingly, that part of the judge’s decision finding the violation of29 C.F.R. ? 1910.107(g)(5) to be willful is reversed. Item 3 ofcitation 2 is affirmed as serious, and a penalty of $400 is assessed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: Dec. 16, 1985————————————————————————FOOTNOTES:[[1]] The citation originally alleged that solvent was used improperly\”on August 6, 1981 and subsequent days.\” As a result of an amendment,the period during which the violation is alleged to have occurred isfrom about June 10, 1981 through about August 6, 1981. This amendmentis consistent with section 9(c) of the Act, 29 U.S.C. 658(c), whichprovides that no citation may be issued \”after the expiration of sixmonths following the occurrence of any violation.\”[[2]] Section 6(a) of the Act, 29 U.S.C. ? 655(a),provides:Without regard to chapter 5 of title 5, United States Code or to theother subsections of this section, the Secretary shall, as soon aspracticable during the period beginning with the effective date of thisAct and ending two years after such date, by rule promulgate as anoccupational safety or health standard any national consensus standard,and any established Federal standard, unless he determines that thepromulgation of such a standard would not result in improved safety orhealth for specifically designated employees. In the event of conflictamong any such standards, the Secretary shall promulgate the standardwhich assures the greatest protection of the safety or health of theaffected employees.[[3]] According to the NFPA’s \”Official Definitions,\” the word \”should\”refers to \”recommendations or that which is advised but not required,\”whereas \”shall\” is \”intended to indicate requirements.\” Had the\”should\” provision been adopted under the Act without change, it wouldnot have been binding. _See_ _Usery v. Kennecott Copper Corp_., 577F.2d 1113 (10th Cir. 1977); _A_. _Prokosch & Sons Sheet Metal, Inc_., 80OSAHRC 96\/A2, 8 BNA OSHC 2077, 1980 CCH OSHD ? 24,840 (Nos. 76-406 and76-576, 1980).[[4]] Simplex also notes a number of other instances in which section1910.107 differs from NFPA No. 33–1969. Simplex contends that becauseNFPA No. 33–1969 represents a consensus of the views of its drafters,it must be adopted verbatim in order to preserve the consensus on whichit is based. However, section 6(a) of the Act does not require theSecretary to promulgate established Federal or national consensusstandards literally word-for-word. _Deering-Milliken, Inc. v. OSHRC,_630 F.2d 1094, 1100 (5th Cir. 1980); _George C. Christopher & Son,Inc_., 82 OSAHRC 9\/A2, 10 BNA OSHC 1436, 1443, 1982 CCH OSHD ? 25,956,p. 32,531 (No. 76-647, 1982). We further note that an appellate courthas rejected an identical argument raised by Simplex in a proceedingarising out of the same inspection at issue here. _Simplex TimeRecorder Co. v. Secretary of Labor_, 766 F.2d 575 (D.C. Cir. 1985).[[5]] \”Flash point\” is elsewhere defined in the NFPA standards as \”theminimum temperature of a liquid at which sufficient vapor is given offto form an ignitable mixture with the air near the surface of the liquidor within the vessel used . . . .\” NFPA No. 321-1969, _Standard on BasicClassification of Flammable and Combustible Liquids_. The NFPAstandards indicate that, generally speaking, the degree of ignitionhazard presented by a liquid declines as its flash point increases. _See_, _e.g_., NFPA No. 326-1951, _Warning Labels for Containers ofFlammable Liquids_.[[6]] It is a fundamental rule of statutory construction that a standardmust be read as a harmonious whole, with meaning given, if possible, toevery word or phrase. _Richards v. United States_, 369 U.S. 1, 11(1962); _United States v. Menasche_, 348 U.S. 528, 538-39 (1955);_United States Steel Corp_., 77 OSAHRC 64\/C8, 5 BNA OSHC 1289, 1296,1977-78 CCH OSHD ? 21,795, p. 26,225 (Nos. 10,825 and 10,849, 1977).[[7]] The decision of the NFPA not to prohibit an employer from usingany flammable or combustible solvent is consistent with the NFPA’sconclusion that it is not possible to establish criteria from which anemployer could absolutely determine that a particular solvent wouldnever be hazardous under any circumstances. Thus, NFPA No. 30-1969,_Flammable and Combustible Liquids_ _Code_, which applies generally tothe storage and use of such liquids, exempts from its requirementsliquids having flash points at or above 200 degrees. However, section11 of the standard expressly notes that this exemption \”should not beconstrued as indicating that liquids with higher flash points arenon-combustible.\” Section 1010 further states:Such liquids, however, [those with flash points above 200 degrees]involve some degree of hazard, which may be controlled by application ofcertain provisions of this Code, with appropriate modifications. Attention is directed to the fact that liquids of flash point higherthan 200? F. may assume the characteristics of lower flash points whenheated, and under such conditions it may be appropriate to apply theprovisions of the Code to liquids with flash points above 200 ? F.[[8]] To put it another way, under NFPA section 808 if an employer usesa solvent for cleaning purposes \”that will not burn\” then the remainingprovisions of section 808 are inoperative. But if the employer does usea flammable solvent for cleaning, the mandatory provisions regarding theflash point of the solvent come into play. Likewise, under OSHAstandard section 1910.107(g)(5) if an employer uses a solvent forcleaning that will not burn, the standard is obviously inapplicable. However, if the employer uses a flammable solvent for cleaning purposesthen the mandatory provisions of ? 107(g)(5) apply to the flash point ofthe solvent. Thus, the employer’s duties under NFPA section 808 andunder OSHA section 1910.107(g)(5) _are_ _exactly_ _the_ _same_.[[9]] This fire resulted in the issuance of the present citations.[[10]] The Secretary also relies, as did the judge, on another fire thatoccurred in Simplex’s facility on November 18, 1980. This fire did notinvolve the spray booths themselves but rather the paint storage anddispensing room from which paint and thinner are piped to the spraybooths. Simplex’s insurance carrier, in its report to Simplex,attributed this fire to static electricity which ignited thinner beingpumped through an ungrounded hose. It recommended improvements to thepumps, including a provision for grounding, and other modifications tothe paint room and procedures for its operation. Because this fire didnot involve the use of solvents for cleaning purposes, we agree withSimplex that it has no bearing on the issues in this case.[[11]] The judge credited Mace’s testimony over that of Tremblay in partbecause Tremblay participated in developing new cleaning proceduresfollowing the March 1981 fire. There is, however, no evidence tosupport the judge’s apparent inference that Tremblay necessarily wouldhave become aware that during cleaning employees were using solvent inan improper manner. On the contrary, Tremblay indicated that he had notobserved solvent being used for cleaning floors despite his periodicinspections of spray booths.The Secretary also contends that Tremblay was shown to be aware ofimproper use of flammable solvents because following the stateinspection he signed a memorandum stating, in part, that \”no flammablesshould be inside the booths\” due to possible fire hazard. The record,however, shows that Tremblay did not sign this memorandum. Rather, thememorandum was prepared by Whitman, who did not give it to Tremblay nordid Tremblay have knowledge of it. Whitman further testified that hiscomment was concerned with storage of open cans of solvents in spraybooths and that Simplex’s supervisors at his request removed such cansfrom the spray booths. We cannot conclude on these facts that Tremblaywas put on notice that solvents were being used in spray booths forcleaning purposes.[[12]] Although Simplex petitioned for discretionary review of thejudge’s decision on a number of citation items and issues, the directionfor review was expressly limited only to the issues of whether section1910.107(g)(5) was properly promulgated and, if so, whether the judgeerred in finding the violation of that standard willful. Wesubsequently issued an order severing these issues from those on whichreview had not been directed, and we entered a final order as to thosecitation item and issues on which review had not been directed. It wasthe Commission’s intent by that severance order to permit the ALJ’saffirmance of a violation of section 1910.107(g)(5) to become a finalorder, ripe for review, leaving before the Commission only those issuesdirected for review, _i.e_., the validity of the promulgation of1910.107(g)(5) and the categorization of the violation of that standardas \”willful.\” On review, however, the Circuit Court of Appeals for theDistrict of Columbia Circuit interpreted the severance order asreserving to the Commission \”the whole question of the facts, validity,and nature of the alleged violation,\” and declined to rule on the ALJ’sfinding. _Simplex Time Recorder Co. v. Secretary of Labor_, 766 F.2d575, 590, n.9 (D.C. Cir. 1985). The circumstances, as they now exist,are that the appeal of the factual existence of the violation remainsundecided, and it is unclear whether the circuit court would review thefactual existence of a violation, should a deal be taken. In order toassure a final disposition and to preserve the rights of the parties toseek review, we assert jurisdiction pursuant to Rule 60(b) of theFederal Rules of Civil Procedure, and reaffirm the ALJ’s finding thatthe violation occurred.”