“Docket No. 76-4355 SECRETARY OF LABOR, Complainant, v.STANBEST, INCORPORATED, Respondent.OSHRC Docket No. 76-4355DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners. BY THE COMMISSION:A decision of Administrative Law Judge Paul L. Brady is before the Commissionfor review under 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 Judge Brady affirmedseveral items of a citation alleging a failure by StanBest, Inc. (\”StanBest\”) tocomply with various occupational safety and health standards in 29 C.F.R. Part 1910.\u00a0Commissioner Cleary directed review of all the issues raised in StanBest’s petitionfor review.\u00a0 We vacate the direction for review in part; with respect to the itemsremaining on review, we affirm the judge’s decision in part and reverse in part.StanBest’s Motion to Suppress EvidenceAt its Fairburn, Georgia plant, StanBest manufactures fiberglass tub andshower units.\u00a0 On September 21, 1976, two compliance officers representing theSecretary of Labor (\”the Secretary\”) arrived at the plant to conduct aninspection.\u00a0 At the time of their arrival, Stavrolakis, the company’s president, wasnot present.\u00a0 They were met by StanBest’s plant manager, Dupree.\u00a0 According tocompliance officer Black, he informed Dupree that they were going to conduct an OSHAinspection, that they might take photographs, and that he could accompany them.\u00a0 Black testified that Dupree stated \”[t]hat’s fine,\” that for about 30minutes he obtained information about the chemicals in use in StanBest’s manufacturingprocess, and then began the inspection.\u00a0 Compliance officer Cassell testified thatDupree gave permission to inspect the plant.\u00a0 The two compliance officers and Dupreeinspected the plant together.\u00a0 Stavrolakis arrived at the plant during the closingconference following the inspection.\u00a0 Black and compliance officer Cassell then wentback through the plant with Stavrolakis and conducted a second closing conference withhim.At the hearing, StanBest, represented by Stavrolakis, moved to vacate thecitation, arguing that the evidence to support it had been obtained illegally.\u00a0 Insupport of this motion, it offered an affidavit by Dupree purportedly demonstrating thatthe compliance officers entered StanBest’s plant without Dupree’s consent.\u00a0 Theaffidavit reads as follows:On the afternoon of Sept. 21, 1976, two men walked into the plant officelocated at 348 Bay St., Fairburn, Georgia and announced that they were from OSHA.\u00a0 They said that they were there to inspect the plant.\u00a0 I told them that theowner, a Mr. James A. Stavrolakis, was out picking up supplies, and that he should be backshortly.\u00a0 They sat down to wait, and to describe to me the purposes of OSHA.\u00a0 Itold them that I knew all about OSHA, since I had a small fiberglass plant in SouthGeorgia.\u00a0 As a result of their inspection of my plant, I had to close down theoperation and put eight (8) people on welfare.\u00a0 The visitors got impatient and saidthey were going through the plant.\u00a0 I told them that I would urgently try to contactJ. Stavrolakis.\u00a0 I did locate him by telephone, and he said he would rush back rightaway.\u00a0 The visitors were unwilling to wait and went through the plant even thoughover the entrance to the plant area is a sign stating \”Authorized PersonnelOnly.\”\u00a0 Messrs. L. Black and P. Cassell made notations and took unauthorizedphotographs.\u00a0 Mr. J. Stavrolakis arrived at the plant just as the visitors were aboutto leave, and he sat down to listen to the alleged citations.\u00a0 He asked them if bothwere on assignment.\u00a0 Mr. Black said only he was on assignment and that Mr. Cassellwas only accompanying him.The judge refused to accept the affidavit on the ground that Dupree was notpresent for cross-examination.\u00a0 At the close of the hearing, the judge denied themotion to suppress and reiterated his exclusion of Dupree’s affidavit.\u00a0 Judge Bradystated at the hearing that there was \”nothing shown to be irregular [about the]inspection.\”On review, StanBest argues that the evidence obtained as a result of theinspection should be suppressed because the inspection was conducted without a warrant andwithout its consent, and therefore in violation of the Fourth Amendment and 29 C.F.R. ?1903.4, one of the Secretary’s rules governing inspections.\u00a0 As evidence of its lackof consent, StanBest points to the affidavit of its plant manager, which it contends wasimproperly excluded by the judge.\u00a0 In a supplemental brief filed following theSupreme Court’s decision in Marshall v. Barlow’s, Inc. 436 U.S. 307 (1978), StanBestargues that under Linkletter v. Walker, 381 U.S. 618 (1965), Barlow’s should be appliedhere because intervening decisions apply to cases pending on appeal when those decisionsare issued.The Secretary argues that the judge’s conclusion that there was \”nothingshown to be irregular [about the] inspection\” indicates that there was consent to theinspection.\u00a0 He maintains that the judge properly excluded the affidavit becauseDupree was not present for cross-examination, StanBest made no effort to show that Dupreewas unavailable, and StanBest did not request that the record remain open for histestimony.\u00a0 The Secretary also contends that even if Dupree’s affidavit wereadmitted, nothing in the affidavit indicates that Dupree denied the compliance officerspermission to enter or conditioned their entry on Stavrolakis’ presence.\u00a0 Citing toUnited States v. Peltier, 422 U.S. 531 (1975), the Secretary contends that even if thesearch did lack consent, Barlow’s should not be applied retroactively because thecompliance officers reasonably believed that a warrant was not required.StanBest claim that the inspection took place without its consent restsentirely on the facts set out in the affidavit.\u00a0 Dupree’s affidavit described theevents surrounding the inspection of StanBest’s plant, but in light of the consistent,contrary testimony of the two compliance officers, it is too unclear and lacking inspecifics to provide a basis for us to conclude that the compliance officers enteredStanBest’s plant without consent.\u00a0 In fact, the affidavit does not state that thecompliance officers were denied entry by Dupree or that Stavrolakis objected to theinspection when he arrived at the plant.\u00a0 Thus, even if we were to conclude thatdespite Commission Rule 69, 29 C.F.R. ? 2200. 69, [[1\/]] the judge erred in excluding theaffidavit–a question we do not reach–the affidavit fails to rebut the testimony of thecompliance officers.[[2\/]]\u00a0 Accordingly, we conclude that the inspection was lawful,[[3\/]] and we turn to the merits of the alleged violations.[[4\/]]Item 3: 29 C.F.R. ? 1910.106(e)(2)(ii)(b)(2).[[5\/]]Item 3 alleges that StanBest failed to comply with section 1910.106(e)(2)(ii)(b)(2) bystoring \”[m]ore than 120 gallons of Class 1B, 1C, II, or III flammable or combustibleliquids outside of inside storage room(s) or storage cabinet(s).\”\u00a0 The itemalleged that five full drums of resin and two of acetone were stored in the shop.\u00a0According to its scope provision, coverage of section 1910.106(e) is limited to\”industrial plants.\”\u00a0 Section 1910.106(e)(1).\u00a0 The compliance officertestified that because StanBest’s plant was not covered by any of the other subparts ofsection 1910.106(e), it was an industrial plant.\u00a0 The judge affirmed item 3 of thecitation but did not specifically find that StanBest operated an \”industrialplant.\”\u00a0 Although polymerization occurred in StanBest’s plant, the judge foundthat the storage of flammables and the process of polymerization were separate functions,and that StanBest had failed to delineate their relationship sufficiently to establish anexception under section 1910.106(e)(2).StanBest argues that section 1910.106(e) was not shown to apply to its plantbecause the compliance officer’s testimony does not establish that the plant was an\”industrial plant.\”\u00a0 It also contends that even if its operation was an\”industrial plant\” covered by section 1910.106(e), it would be excluded fromcoverage by the exception for polymerization and other chemical processes in section1910.106(e)(1)(ii). The Secretary maintains that because StanBest is involved in the manufactureof fiberglass tub and shower units, its operation involves an \”industrial plant\”as does the assembly of automobiles and the manufacture of furniture listed as examples insection 1910.106(e).\u00a0 The Secretary also contends that StanBest has not made out anexception under section 1910.106(e)(1)(ii).\u00a0 The Secretary points out that althoughthere is an exception in the regulations for those parts of industrial plants wherepolymerization occurs, StanBest’s alleged infractions of section 1910.106 did not takeplace in areas of its plant where that process took place.We conclude that section 1910.106(e) has been shown to apply here.\u00a0 StanBest’s plant involves the manufacture of tub and shower units.\u00a0 It is an\”industrial plant\” within the plain meaning of the term.\u00a0 It is certainlynot one of the specialized plants that transfer, disburse and refine flammable andcombustible liquids and are governed by other subdivisions of section 1910.106.StanBest has also failed to demonstrate that the polymerization that takesplace at its plant excepts it from the coverage of section 1910.106(e).\u00a0 According tosection 1910.106(e)(1)(ii), if any portion of a plant involves a chemical reaction such aspolymerization, that portion must meet the requirements of section 1910.106(h), ratherthan section 1910.106(e).\u00a0 StanBest claims that polymerization takes place in itsplant, but it has not identified the areas of the plant in which the alleged violations ofsection 1910.106(e) occurred as areas where polymerization was conducted.\u00a0 Becausethe party claiming the benefit of an exception has the burden of proving that its claimcomes within the exception, see United States v. First City National Bank of Houston, 386U.S. 361, 366 (1967); Durant Elevator, A Division of Scoular-Bishop Grain Elevator, 80OSAHRC 103\/D5, 8 BNA OSHC 2187, 2189, 1980 CCH OSHD ? 24,873, p. 30,673 (No. 77-1518,1980), StanBest’s claim of an exception must fail.[[6\/]]We now turn to the question of noncompliance.\u00a0 Black, the complianceofficer, testified that there were five, full 55-gallon drums of resin and two full drumsof acetone in an area near the spray booths.\u00a0 Black identified the substances in thebarrels as resin and acetone on the basis of discussions he had with Dupree, StanBest’splant manager.\u00a0 He stated that Dupree told him that the resin drums were lying on thefloor for lack of better storage space and the acetone drums were present because that was\”where they stored their material.\” Black stated that all of the barrels hadred, Department of Transportation (\”DOT\”) flammability labels on them. [[7\/]]\u00a0 He estimated that the seven barrels contained approximately 400 gallons of liquid.Black also testified that he observed three of StanBest’s employees near the barrels andthat the plant had no inside storage room.\u00a0 Black stated that he knew acetone andresin were classified as 1B flammables from his experience as a safety director for achemical company. [[8\/]]\u00a0 Black testified that in that capacity he had handled bulkacetone and \”assisted in the handling, shipping, packaging and storage of flammables,caustics, and acids.\”The judge affirmed item 3.\u00a0 He apparently relied on the complianceofficer’s testimony that the drums contained acetone and resin and found that the drumscontained \”[f]lammable or combustible liquids in excess of 120 gallons.\”\u00a0 He did not specifically find that acetone or resin were class 1B, 1C, II, or IIIflammables. StanBest argues that because the identity and character of the substances inthe drums cannot be determined unless samples are taken and tests made, the evidenceintroduced by the Secretary is insufficient to establish a violation.\u00a0 It contendsthat the Secretary failed to show that resin and acetone were class 1B flammables, andrelied instead on what it characterizes as the compliance officer’s\”undetermined\” experience for that proof.\u00a0 StanBest also argues that theSecretary’s counsel asserted that the compliance officer was incompetent to testify to theflashpoint of acetone or resin.Compliance officer Black testified without contradiction that StanBest’s ownplant manager indicated to him that the barrels contained acetone and resin.\u00a0 Wetherefore do not think it was necessary for the compliance officers to have taken samplesor conducted tests to ascertain the contents of the drums.\u00a0 We find that the citeddrums contained acetone and resin.We also find that class 1B substances were present.\u00a0 By reason of hisexperience in handling, packaging, and storing acetone, resin and other chemicals and hisconversations with StanBest’s plant manager, Black testified credibly to theclassification of acetone and resin.[[9\/]] This testimony was unrebutted. In any event, wetake official notice that the boiling point of acetone is 56.48?C or 134?F, and that theflashpoint of acetone is -18?C or 0?F.\u00a0 See, e.g., N.I. Sax, Dangerous Propertiesof Industrial Materials 334 (5th ed. 1979); see also 2C Patty’s Industrial Hygiene andToxicology 4722-23 (3d. ed. 1982) (56.2?C boiling point).\u00a0 This would bring acetonewithin the class of 1B flammables.\u00a0 That the resin and acetone drums had DOTflammability tags on them also supportsthis.\u00a0 See note 7 supra.\u00a0 These facts are \”not subject to reasonabledispute . . . [and are] capable of accurate and ready determination by resort to sourceswhose accuracy cannot reasonably be questioned,\” Fed. R. Evid. 201(b).\u00a0 Officialnotice may be taken of them even for the first time on review.\u00a0 See Fed. R. Evid.201(f); Pratt & Whitney Aircraft, Division of United Technologies Corp., 80 OSAHRC38\/A2, 8 BNA OSHC 1329, 1331 n.4, 1980 CCH OSHD ? 24,447, p. 29,821 n.4 (No. 13591,1980), aff’d in part and rev’d in part without consideration of the point, 649 F.2d 96 (2dCir. 1981); Attorney General’s Manual on the Administrative Procedure Act, 80 (1947).\u00a0 Accordingly, we conditionally affirm item 3 of the citation. [[10\/]]Item 4: 29 C.F.R. ? 1910.106(e)(2)(iv)(a)Item 4 alleged that StanBest failed to comply with 29 C.F.R. ? 1910.106 (e)(2)(iv)(a) byfailing to keep \”flammable liquids . . . in covered container(s) when not actually inuse.\”\u00a0 The citation alleged four separate violations of the standard.\u00a0 Thestandard states that \”[f]lammable liquids shall be kept in covered containers whennot actually in use.\”The judge found violations as to all four sub-items.\u00a0 He rejectedStanBest’s contention that evidence of flammability was insufficient.\u00a0 He reliedinstead on the testimony of the compliance officer, which relied on statements made to himby Dupree and Ashford, a StanBest employee.\u00a0 StanBest characterizes Black’s testimonyregarding statements made by Dupree and Ashford as inadmissible hearsay.This argument lacks merit. Dupree’s and Ashford’s statements are clearlyadmissions by a party opponent through his agent and servant and thus are not hearsay.\u00a0 Fed. R. Evid. 801(d)(2); see Prestressed Systems, Inc., 81 OSAHRC 43\/D5, 9 BNA OSHC1864, 1870, 1981 CCH OSHD ? 25,358, p. 31,501 (No. 16147, 1981). In any event, hearsay isgenerally admissible in administrative proceedings and may be used as probative evidence.\u00a0 See Power Systems Division, United Technologies Corp., 81 OSAHRC 40\/C13, 9 BNA OSHC1813, 1981 CCH OSHD ? 25,350 (No. 79-1552, 1981), and cases cited therein.Item 4(a) alleged that acetone was in an uncovered plastic jug.\u00a0 Thecompliance officer observed the jug in the polishing area of the shop.\u00a0 Black, thecompliance officer, testified that Dupree identified the substance in the jug as acetoneand that Black recognized it as acetone by its odor.\u00a0 He identified acetone as a 1Bflammable.\u00a0 The reliability of Black’s testimony that Dupree identified the substanceas acetone is greatly enhanced by his independent recognition of the acetone by its smell.\u00a0 We have previously found that acetone is a 1B flammable.\u00a0 Accordingly, weconditionally affirm sub-item 4(a) of the citation.\u00a0 See note 10 supra.As to sub-item 4(b), Black testified that three partially-open, five-galloncans of gel coat, a pigmented resin, were present in the shop.\u00a0 Black characterizedgel coat as \”a 1B flammable liquid\”; he testified that he also recognized gelcoat containers.Commissioner Cottine finds that the testimony of the compliance officer,given his extensive experience handling chemicals, establishes that the cans contained aflammable liquid in violation of section 1910.106(e)(2)(iv)(a).\u00a0 The complianceofficer’s testimony was unrebutted and the judge specifically found the compliance officerto be a credible witness on the subject. Commissioner Cleary, however, believes that thetestimony of the compliance officer does not provide a sufficient basis on which to find aviolation.\u00a0 In his view, the evidence does not establish that the containerscontained gel coat, but only that Black, from his experience, recognized similarcontainers in the shop as ones that generally contained gel coat.\u00a0 This evidence, inCommissioner Cleary’s view, is too uncertain.Because Chairman Rowland would remand and does not reach the merits of the citation, theCommission members are divided on the disposition of this item.\u00a0 They therefore agreeto vacate the direction for review as to sub-item 4(b).\u00a0 Texaco, Inc., 80 OSAHRC74\/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ? 24,634 (No. 77-3040, 1980). [[11\/]]Sub-item 4(c) involved three unlabeled containers of contaminated acetonethat the compliance officer observed in front of one of the spray booths.\u00a0 He statedthat Dupree, StanBest’s plant manager and a second employee, Ashford, told him that thecans contained acetone with some impurities, specifically gel coat.\u00a0 The complianceofficer testified that the acetone would retain its flammability even down to one per centconcentrations.\u00a0 Inasmuch as the admission by Dupree establishes the presence ofacetone and we have previously found that acetone is a flammable liquid, item 4(c) isconditionally affirmed.\u00a0 See note 10 supra.Item 4(d) alleged that two open drums of acetone were located near an aircompressor.\u00a0 Because the Secretary failed to introduce any evidence to support thisitem, it is vacated.Item 2:\u00a0 29 C.F.R. ? 1910.106(d)(2)(i) [[12\/]]Item 2 involves the plastic jug cited in item 4(a).\u00a0 The standard states in part that\”[o]nly approved containers . . . shall be used.\” The compliance officertestified that the plastic jug was not an approved container because glass or plastic arepermissible containers only if the flammable liquid would damage the safety can and theamount of the liquid is small.\u00a0 The compliance officer testified that acetone wouldnot damage a safety can, and that if acetone ignited, it would melt a plastic container.The judge found a violation of the standard because the Secretary established thatacetone, a combustible liquid, was not in an approved container. In its brief on review,StanBest argued that the Secretary did not establish that the plastic container used tostore the acetone was not approved by organizations listed in section 1910.106(a)(35).Commissioner Cottine would affirm this item because the jug, which has beenfound to have contained acetone, was not an approved container for a class 1B flammableliquid. Section 1910.106(d)(2)(i) states the general requirements of section1910.106(d)(2) that only approved containers be used; the remainder of the standard shedsfurther light on what containers are approved for class 1B flammables. Read as a whole andconstrued together, see Hughes Brothers, Inc., 78 OSAHRC 65\/A2, 6 BNA OSHC 1830, 1833,1978 CCH OSHD 22,907, p. 27,717 (No. 12523, 1979), the provisions of section1910.106(d)(2) indicate that a one-gallon plastic jug could not have been approved foracetone.\u00a0 Section 1910.106(d)(2)(iii) requires that containers for flammable liquidsbe in accord with Table H-12, which prohibits the use of one-gallon plastic containers forclass 1B flammable liquids.\u00a0 StanBest’s use of a one-gallon plastic jug to holdacetone would also not fall within the exception in section 1910.106(d)(2)(iii), approvingthe domestic use of \”plastic containers of no more than 1-gallon capacity . . . for aclass . . . 1B flammable liquid\” if the liquid would be rendered unfit by contactwith metal or would excessively corrode a metal container. StanBest’s storage of acetonein metal drums and the compliance officer’s unrebutted testimony that acetone would notdamage a metal safety can demonstrate that StanBest’s one-gallon plastic jug would notfall within this exception.Commissioner Cleary would affirm the item as de minimis.\u00a0 The standardpermits class 1B flammables to be held in quart-size plastic containers.\u00a0 It alsopermits the use of one-gallon containers in some circumstances, but for reasons stated byCommissioner Cottine, this exception is inapplicable.\u00a0 However, no evidence waseduced showing the amount of the liquid in the container, and it could have been less thanone quart.\u00a0 Thus, the only violation shown relates to the size of the container, notthe amount of liquid stored.Inasmuch as the Commissioners are divided on the disposition of the item, thedirection for review as to item 2 is vacated.Items 5-8, 10, 11 and 12:\u00a0 29 C.F.R. ? 1910.107Items 5-8, 10, 11 and 12 alleged violations of various provisions of section1910.107, the spray finishing standard.\u00a0 As a threshold matter, StanBest claims thatits operations do not include spray finishing and that section 1910.107 therefore does notapply.\u00a0 The disputed procedure involves the application, by air-driven spray gun, ofa mixture of gel coat and methyl ethyl ketone peroxide (MEKP), an organic peroxide, to amold.\u00a0 After the mixture hardens, a similar coating–one including strands of cutfiberglass–is applied.\u00a0 The procedure takes place in two spray booths, the gel coatbooth, and the chopper spray booth.\u00a0 In his decision, Judge Brady touched on theapplicability issue very briefly.\u00a0 He concluded that StanBest’s \”plantoperations come within the purview of the standard cited,\” and that \”[s]praybooths [were] used for spraying with flammable or combustible liquids . . . .\”On review, StanBest argues that in order to prove that section 1910.107 isapplicable to its plant, the Secretary must demonstrate that (1) it conducted sprayfinishing in its plant, and that (2) dangerous quantities of flammable vapors werepresent.\u00a0 StanBest argues that the Secretary failed to prove either element.\u00a0StanBest contends that read together, section 1910.94(c)(1)[[13\/]] and section1910.107(a)[[14\/]] define the type of operation that constitutes spray finishing.\u00a0 Itclaims that the two processes it uses, the \”impacting\” of gel onto a mold andthe application of fiberglass to the mold, are not within this definition.\u00a0 StanBestalso claims that the compliance officer did not testify that dangerous quantities offlammable or combustible substances were present, or conduct any tests to determine thepresence of dangerous vapors.\u00a0 In StanBest’s view, the compliance officer merelyasserted that he observed chemicals and concluded that they presented hazards toemployees.StanBest has overlooked that section 1910.107 has a controlling scopeprovision.\u00a0 Section 1910.107(n) states that the section applies to all operationsthat involve \”flammable and combustible finishing materials when applied as a sprayby compressed air, ‘airless’ or ‘hydraulic atomization,’ steam, electrostatic methods, orby any other means in continuous or intermittent processes.\” [[15\/]]\u00a0 There islittle doubt that the finishing materials StanBest uses are applied \”as aspray.\”\u00a0 That StanBest’s process may be correctly termed \”impactplacement\” does not mean that it is not also spray finishing within the meaning ofsection 1910.107. StanBest’s \”impact placement\” argument is therefore withoutmerit.\u00a0 Moreover, section 1910.107(m).[[16\/]] is directed specifically at sprayingoperations where \”organic peroxides [such as MEKP] and other dual componentcoatings\” are used.\u00a0 That it requires that such operations \”be conducted inapproved sprinklered spray booths meeting the requirements of [section 1910.107]\”strongly suggests that StanBest’s operation is covered by section 1910.107. [[17\/]]StanBest also claims that section 1910.107 does not apply to its operationsunless \”dangerous quantities of flammable vapors or mists, or combustible residues,dusts, or deposits are present due to the operation of spraying processes\” within themeaning of section 1910.107(a)(2). This argument is without merit.\u00a0 Section1910.107(a)(2) is not a scope provision for all of section 1910.107. It is instead adefinition of a single term, \”spraying area,\” that is used in only someprovisions of section 1910.107.\u00a0 The Secretary is therefore not required todemonstrate the presence of \”dangerous quantities of flammable vapors or mists, orcombustible residues, dust, or deposits\” if the cited standard does not specificallyaddress \”spraying areas\”.\u00a0 See Fusibles Westinghouse de Puerto Rico v.OSHRC, 658 F.2d 21, 24 (1st Cir. 1981)Of the standards cited here only sections 1910.107(c)(2) and 1910.107(g)(2)speak of \”spraying areas.\” [[18\/]]\u00a0 Inasmuch as compliance officer Blacktestified that \”combustible residues,\” specifically resin, acetone and MEKPresidues, had accumulated on the walls and floor of both spray booths, the areas citedunder those standards (the interior and vicinity of spray booths) were shown to bespraying areas under Ed Jackman Pontiac-Olds, Inc., 80 OSAHRC 26\/D14, 8 BNA OSHC 1211,1215, 1980 CCH OSHD ? 24,351, p. 29,681 (No. 76-20, 1980).The other items that cite section 1910.107 involve standards directed atspray booths.\u00a0 As we have said, it is not necessary to adduce evidence that thesebooths are also spraying areas.\u00a0 Moreover, section 1910.107(m)(1) specificallyrequires that \”[a]ll spraying operations involving the organic peroxides and otherdual component coatings . . . be conducted in approved sprinklered spray booths meetingthe requirements of this section [1910.107].\”\u00a0 This leaves no room for doubt.\u00a0 Because StanBest uses MEKP, an organic peroxide, its spray booths must comply withsection 1910.107.Economic FeasibilityStanBest also contends that at least the items cited under section 1910.107should be vacated because the Secretary did not demonstrate that compliance with section1910.107 is both economically and technologically feasible.\u00a0 Citing to IndustrialUnion Department, AFL-CIO v. Hodgson, 499 F.2d 467, 478 (D.C. Cir. 1974), StanBestmaintains that standards are not designed to protect employees by putting their employersout of business.\u00a0 Moreover, StanBest claims that compliance with the cited standardswould force it out of business.\u00a0 It contends that compliance would require aninvestment of over $30,000, which would exceed the capitalization of the company.StanBest’s contentions are without merit.\u00a0 Except in cases wherefeasibility is specifically encompassed by the terms of the standard, see Sun Ship, Inc.,82 OSAHRC ___, 11 BNA OSHC 1028, 1983 CCH OSHD ? 26,353 (No. 16118, 1982), the Secretarydoes not have the burden of proving the feasibility of abatement measures.\u00a0 SeeHughes Brothers, Inc., 78 OSAHRC 65\/A2, 6 BNA OSHC 1830, 1835, 1978 CCH OSHD ? 22,909, p.27,719 (No. 12523, 1978).\u00a0 An employer may affirmatively defend against a citation bydemonstrating that compliance with a standard is impossible.\u00a0 M.J. Lee ConstructionCo., 79 OSAHRC 12\/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ? 23,330 (No. 15094, 1979). \u00a0However, a claim by an employer that compliance with a standard would be expensive oreconomically burdensome is not relevant to an employer’s obligation to comply.\u00a0 Research Cottrell, Inc., 81 OSAHRC 26\/B13, 9 BNA OSHC 1489, 1498, 1981 CCH OSHD ?25,284, p. 31,266 (No. 11756, 1981).\u00a0 Moreover, apart from its assertions, StanBestintroduced no evidence to support its contention that the costs of abatement would driveit out of business. In fact, the issue was only raised for the first time in itspost-hearing brief to the judge.Item 5:\u00a0 29 C.F.R. ? 1910.107(b)(1) [[19\/]]Item 5 alleged that StanBest’s \”chopper [s]pray booth was notsubstantially constructed of steel, concrete, or masonry,\” but of celotex, which thecompliance officer characterized as a combustible material.\u00a0 He testified that a firehazard existed in the booth because acetone and MEKP were running out of the impactplacement gun onto the floor while the operator adjusted it.\u00a0 The compliance officerstated that a mixture of acetone and MEKP would detonate if the temperature was raised\”substantially.\”In affirming this item, the judge credited the compliance officer’s unrefutedtestimony.\u00a0 He found that although StanBest claimed that acetone was not present,MEKP, which is flammable, was present.StanBest again maintains that the compliance officer was incompetent totestify about explosions.\u00a0 It characterized his conclusions about the hazardassociated with the booth’s construction as unsubstantiated opinion.Item 5 is affirmed.\u00a0 The Secretary need not demonstrate the existence of a hazard inorder to show noncompliance with the cited standard.\u00a0 As we have said, a showingunder section 1910.107(a)(2) need not be made under this \”spray booth\” standard,and section 1910.107(m)(1) specifically requires that the spray booth requirements befollowed.\u00a0 If the standards do not incorporate a requirement that a hazard be shownto exist, such a showing is not part of the Secretary’s prima facie case.\u00a0 See AustinBridge Co., 79 OSAHRC 81\/A2, 7 BNA OSHC 1761, 1765-66, 1979 CCH OSHD ? 23,935, p. 29,021(No. 76-93, 1979); see also Modern Drop Forge Co. v. Secretary of Labor, 638 F.2d 1105,1114 (7th Cir. 1982); Grey-hound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir.1978).\u00a0 It is therefore enough here to find that the evidence demonstrates that thespray booth was not constructed of steel, concrete, masonry or aluminum but wasconstructed of a combustible material.Item 6:\u00a0 29 C.F.R. ? 1910.107(b)(5)(i) [[20\/]]Item 6 alleges that the gel coat spray booth was not equipped with\”[v]isible gauge(s),\” \”audible alarms,\” or \”pressure activateddevice(s).\”\u00a0 The compliance officer testified that he found no device toindicate the difference in air velocity on either side of the filter.\u00a0 He testifiedthat in the absence of such a device, it would be difficult to determine if the air flowhad been reduced by a clogged filter.\u00a0 He stated that the filter itself could alsobecome clogged with combustible material, which could increase the possibility of fire.The judge held that the compliance officer’s uncontroverted testimonyestablished that the standard was violated.StanBest argues that the proof of a violation is \”nonprobative and incomplete\”because no tests were taken by the compliance officer.\u00a0 Such tests areunnecessary.\u00a0 The evidence establishes that StanBest’s booth lacked the requireddevices. \u00a0 Accordingly, the item is affirmed.Item 7:\u00a0 29 C.F.R. ? 1910.107(b)(5)(iv)[[21\/]]Item 7 alleges that the gel coat spray booth was not equipped with anautomatic fire extinguishing system on its downstream and upstream sides.\u00a0 Accordingto the compliance officer, there was no automatic extinguishing system of any kind in theentire building.\u00a0 The compliance officer stated that deposits could form and firesoccur on the downstream side of the filters.The judge relied on the compliance officer’s uncontroverted testimony inaffirming this item.\u00a0 StanBest contended that the proof for this item \”share[s]the lack of scientific fact and abundance of guesswork which characterizes so much of theevidence in this case.\”Item 7 is affirmed.\u00a0 The compliance officer’s testimony establishes theabsence of the automatic sprinklers required by section 1910.107(b)(5)(iv).Item 8:\u00a0 29 C.F.R. ? 1910.107(b)(6)[[22\/]]Item 8 alleges that StanBest did not have the required \”metal deflectoror curtain. . . . installed at the upper outer edge of the [chopper spray] booth over theopening.\”\u00a0 The compliance officer stated that the booth, which had a frontalarea of 300 square feet, had no deflector of any type and a zero air flow.\u00a0 Thecompliance officer stated that the deflector \”deflects what air flow you have down tothe floor . . . . [to] sweep away any flammable vapors . . . . \” He testified thatwithout a deflector, flammable vapors could accumulate inside the booth and possiblyexplode.Item 8 is affirmed.\u00a0 StanBest’s general exception to the \”lack ofscientific fact and abundance of guesswork\” is without merit.\u00a0 The judgecorrectly relied on the compliance officer’s uncontroverted testimony that StanBest hadnot installed deflectors or curtains at the opening of the booth.\u00a0 StanBest thereforefailed to comply with section 1910.107(b)(6).Item 10:\u00a0 29 C.F.R. ? 1910.107(c)(2) [[23\/]]Item 10 alleged the presence of a bare fluorescent light bulb within 28inches of the chopper spray booth.\u00a0 The standards states in part that \”[t]hereshall be no . . . spark producing equipment . . . within 20 feet [of any spraying area],unless separated by a partition.\”\u00a0 The compliance officer testified that thestarter inside the fluorescent fixture \”has a static discharge occasionally.\”\u00a0 Again relying on the uncontroverted testimony of the compliance officer, the judgeaffirmed the item.Item 10 is affirmed.\u00a0 The compliance officer’s testimony that thestarter in a fluorescent light tube occasionally has a static discharge is unrebutted. Wealso note that the compliance officer’s testimony is consistent with section1910.107(c)(7). [[24\/]]Items 11 and 12:\u00a0 29 C.F.R. ? 1910.107(g)(2) and (n)(1)In its brief on review, StanBest argues only that these standards do notapply.\u00a0 Inasmuch as we have found previously that the 1910.107 standards do apply,and StanBest does not otherwise object, we affirm the judge’s disposition without furtherdiscussion.Item 13:\u00a0 29 C.F.R. ? 1910.134(b)(6) [[25\/]]Item 13 alleged that the respirator used by \”[t]he employee in thechopper spray booth was hung on a nail on a post at the face of the spray booth.\”\u00a0StanBest did not object to the judge’s affirmance of this item in its petition fordiscretionary review.\u00a0 We therefore conclude that it is not before us on review.\u00a0 See Commission Rule 92(c), 29 C.F.R. ? 2200.92(c).\u00a0 In any event, the judge’saffirmance of the item is supported by the evidence.PenaltyThe Secretary proposed and the judge assessed a penalty of $25 for item 4.\u00a0 Thecareless use of the flammable liquids by StanBest might call for a larger penalty.\u00a0 However, in view of StanBest’s small size, lack of history of previous violations,and its claims that it will be put in financial jeopardy by compliance, we conclude that$25 is an appropriate penalty.Accordingly, the direction for review is vacated as to item 2 and sub-item4(b).\u00a0 Items 5, 6, 7, 8, 10, 11, 12, and 13 are affirmed. Item 3 and sub-items 4(a)and 4(c) are affirmed unless StanBest requests an opportunity to introduce evidencecontrary to officially noticed facts within ten days of this decision’s date of issuance.\u00a0 Sub-item 4(d) is vacated.\u00a0 A penalty of $25 is assessed.SO ORDERED.FOR THE COMMISSIONRay H Darling, Jr. Executive SecretaryDATED:\u00a0 FEB 28 1983The Administrative Law Judge decision in this matter is unavailable in this format.\u00a0To obtain a copy of this document, please request one from our Public InformationOffice by e-mail ( [email protected] ),telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1\/]] The rule states that \”[a]n affidavit may be admitted as evidence in lieu oforal testimony if the matters therein contained are otherwise admissible and the partiesagree to its admission.\”[[2\/]] Commissioner Cottine notes that, according to the record, at no timehas StanBest sought to introduce the testimony of Dupree into evidence, having reliedinstead solely on the affidavit that the Commission has now considered.[[3\/]] In view of the Commission’s conclusion that the inspection in thiscase was lawful, Commissioner Cottine notes that it is not necessary to reconsider theCommission’s holding in Meadow’s Industries, Inc., 79 OSAHRC 74\/F2, 7 BNA OSHC 1709, 1979CCH OSHD ? 23,847 (No. 76-1463, 1979).\u00a0 In that case we held that an inspectionconducted in violation of the principles set forth in Marshall v. Barlow’s, Inc., supra,and occurring prior to the decision in Barlow’s, was not retroactively remediable. \u00a0See note 4 of dissenting opinion infra.\u00a0 The Commission held unanimously in Carl M.Geupel Constr. Co., 82 OSAHRC 60\/B5, 10 BNA OSHC 2097, 1982 CCH OSHD ? 26,309 (Nos. 81-55& 81-56, 1982), that retroactive effect would be given to the Commission decision inSarasota Concrete Co., 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ? 25,360 (No.78-5264, 1981), aff’d, 693 F.2d 1061 (11th Cir. 1982).\u00a0 However, Geupel involved apost-Barlow’s inspection and the Meadows issue was not addressed in the differingrationales of the Members.The conclusion of the majority in Geupel that the application of the civilretroactivity test of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), would not yield adifferent result than would application of the test of United States v. Johnson, 102 S.Ct.2579 (1982), see note 1 of dissenting opinion infra, was directed to the retroactiveapplication of the Sarasota holding regarding the scope of warrants, not theconstitutional principles of Barlow’s.\u00a0 Although Commissioner Cottine objected to themajority’s reliance on the criminal retroactivity test of Johnson, he concurred in theretroactivity holding of Geupel because Sarasota did not constitute a \”clearbreak\” with past precedent as that test has been applied in the civil context.\u00a0 The Commission’s Sarasota holding on the permissible scope of warrants was premisedon controlling Supreme Court precedent.\u00a0 However, the considerations that led to theretroactivity holding of Geupel do not necessarily yield the same result when theretroactivity holding of Chevron Oil.\u00a0 Although the Supreme Court concluded inBarlow’s that nonconsensual, warrantless OSHA inspections were not constitutionallyauthorized, inspections conducted prior to Barlow’s were authorized by an express act ofCongress and were arguably controlled by either of two separate lines of Supreme Courtprecedent.\u00a0 Compare G.M.\u00a0\u00a0 Leasing Corp. v. United States, 429 U.S. 338(1977), United States v. Biswell, 406 U.S. 311 (1972), and Colonnade Catering Corp. v.United States, 397 U.S. 72 (1970) with See v. City of Seattle, 387 U.S. 541 (1967) andCamara v. Municipal Court, 387 U.S. 523 (1967).\u00a0 Indeed, subsequent to its decisionin Barlow’s, the Court applied the Colonnade-Biswell line of authority to permitwarrantless inspections under a regulatory statute involving mine safety and health.\u00a0 Donovan v. Dewey, 101 S.Ct. 2534 (1981).\u00a0 Accordingly, Commissioner Cottineconsiders his dissenting colleague’s suggestion that the applications of the civil andcriminal retroactivity tests would yield the same result in all Fourth Amendment cases tobe without legal foundation.[[4\/]] In its petition for review, StanBest argued that it is not engaged inbusiness affecting interstate commerce because it does business only in Georgia.\u00a0 Citing Anchorage Plastering Co., 75 OSAHRC 65\/A2, 3 BNA OSHC 1284, 1974-75 CCH OSHD? 19,720 (No. 3322, 1975), rev’d, 570 F.2d 351 (9th Cir. 1978), it contends that thecompliance officer’s testimony regarding the origins of materials used at StanBest’s plantdoes not constitute credible evidence of an effect on interstate commerce.\u00a0 StanBestdoes not address this issue in its brief on review, which was submitted after counsel hadbeen retained.\u00a0 This indicates that it has abandoned the issue.\u00a0 S&S DivingCo., 80 OSAHRC 85\/D3, 8 BNA OSHC 2041, 2042, 1980 CCH OSHD ? 24,742, p. 30,464 (No.77-4234, 1980). We also note that its argument lacks merit. First, Anchorage Plastering isa split decision with no precedential value.\u00a0 Second, there is sufficient evidence inthe record to support the judge’s conclusion.\u00a0 StanBest’s president testified that hetraveled out of state to promote the company’s products; the compliance officer’stestimony that some of the components of StanBest’s products were from out of state wasnot rebutted.Both before the judge and in its petition for review, StanBest also arguedthat one of the compliance officers was not a credible witness because of his interest instarting a business similar to that of StanBest.\u00a0 StanBest did not address the issuein its brief on review and we again conclude that it has been abandoned.\u00a0 Moreover,we remain unconvinced of any merit in StanBest’s claim.[[5\/]] ? 1910.106 Flammable and combustible liquids.* * *(e) Industrial plants–(1) Scope–(i) Application.\u00a0 This paragraph [(e)] shall apply to those industrialplants where:(a) the use of flammable or combustible liquids is incidental to theprincipal business, or(b) Where flammable or combustible liquids are handled or used only in unit physicaloperations such as mixing, drying, evaporating, filtering, distillation, and similaroperations which do not involve chemical reaction.\u00a0 This paragraph shall not apply tochemical plants, refineries, or distilleries.(ii) Exceptions.\u00a0 Where portions of such plants involve chemical reactions such asoxidation, reduction, halogenation, hydrogenation, alkylation, polymerization, and otherchemical processes, those portions of the plant shall be in accordance with paragraph (h)of this section.(2) Incidental storage or use of flammable and combustible liquids–(i) Application.\u00a0 This subparagraph shall be applicable to those portions of anindustrial plant where the use and handling of flammable or combustible liquids is onlyincidental to the principal business, such as automobile assembly, construction ofelectronic equipment, furniture manufacturing, or other similar activities.(ii) Containers.\u00a0 Flammable or combustible liquids shall be stored in tanks or closedcontainers.(a) Except as provided in subdivisions (b) and (c) of this subdivision, allstorage shall comply with paragraph (d)(3) or (4) of this section.(b) The quantity of liquid that may be located outside of an inside storage room orstorage cabinet in a building or in any one fire area of a building shall not exceed:(2) 120 gallons of Class IB, IC, II, or III liquids in containers.[[6\/]] On review, StanBest argues for the first time that the judgeimproperly restricted its cross-examination of compliance officer Black regardingpolymerization.\u00a0 StanBest acknowledges the general rule in Federal Rule of Evidence611(b) that cross-examination \”should be limited to the subject matter of the directexamination and matters affecting the credibility of the witness.\”\u00a0 It arguesthat its cross-examination of Black was appropriate because it dealt with matters raisedon direct examination and with Black’s credibility.Inasmuch as StanBest did not raise this issue in its petition for review orbefore the judge, it would ordinarily not be on review. Commission Rules 92(c)and (d).\u00a0 Moreover, StanBest’s argument lacks merit.\u00a0 Black’s testimony did not at allconcern polymerization. As to StanBest’s claim that the questions posed to Black wereintended to attack his credibility, we note that StanBest’s president did not then makeclear to the judge his intent to attack the compliance officer’s credibility.\u00a0 Thejudge inquired into the purpose of the cross-examination and upon being told it was toestablish that StanBest was excepted from the requirements of the cited standard, hecarefully explained that StanBest could fully raise that issue in its own case.\u00a0 StanBest has not explained why it could not have proven its exception on its own.\u00a0 Although Federal Rule 611(b) allows, in the exercise of discretion, \”inquiryinto additional matters as if on direct examination,\” we cannot say that the judgeabused his discretion here.[[7\/]] DOT tags indicate that the liquids within containers are\”flammable liquids\” and have flashpoints below 100? F.\u00a0 See 49 C.F.R. ??172.419, 171.8 and 173.115(a)(1).\u00a0 We may take official notice of the significance ofthe DOT tags.\u00a0 See 44 U.S.C. ? 1507 (\”[t]he contents of the Federal Registershall be judicially noticed . . . .\”) (The Code of Federal Regulations is a specialedition of the Federal Register.\u00a0 44 U.S.C. ? 1510.)[[8\/]] ? 1910.106 Flammable and combustible liquids.(a) Definitions.(18) \”Combustible liquid\” means any liquid having a flashpoint at or above100?F . . . . Combustible liquids shall be divided into two classes . . . :(i) \”Class II liquids:\u00a0 shall include those with flashpoints at or above 100?F.. . and below 140?F. . . . [exception omitted].(ii) \”Class III liquids\” shall include those with flashpoints at or above140?F. . . .***(19) \”Flammable liquid\” means any liquid having a flashpoint below100?F. . . . [exception omitted].\u00a0 Flammable liquids shall be known as Class Iliquids.\u00a0 Class I liquids are divided into three classes as follows:(i) Class IA shall include liquids having flashpoints below 73?F . . . . andhaving a boiling point below 100?F. . . .(ii) Class IB shall include liquids having flashpoints below 73?F . . . and having aboiling point at or above 100?F . . . .(iii) Class IC shall include liquids having flashpoints at or above 73?F . . . and below100?F. . . .[[9\/]] The statement by the Secretary’s counsel that Black was incompetent totestify to the degree of flammability, when read in context, merely indicates that,although Black knew that acetone and resin were 1B flammables, he did not know their exactflashpoints without referring to a chart.[[10\/]] Under section 7(d) of the Administrative Procedure Act, 5 U.S.C. ?556(e), an agency taking official notice of a material fact not in the record is requiredto allow a party the opportunity to show the contrary.\u00a0 We affirm those items of thisdecision that rely on officially noticed facts unless StanBest requests an opportunitywithin ten days to show contrary evidence.[[11\/]] Commissioner Cottine agrees to vacate the direction for review as tothis item because the directing member joins in this disposition and all other criteriafor this action have been satisfied.\u00a0 See Lone Star Steel Co., 81 OSAHRC 105\/E7, 10BNA 1228, 1231, 1982 CCH OSHD ? 25,825, p. 32,286 (Nos. 77-3893 & 77-3894,1981)(Cottine, Commissioner, concurring); Keco Indus. Inc., 79 OSAHRC 105\/D9, 7 BNA OSHC2048, 2052, 1979 CCH OSHD ? 24,117, p. 29,310 (No. 78-661, 1979)(Cottine, Commissioner,dissenting).\u00a0 Compare Shaw Constr., Inc. v. OSHRC, 534 F.2d 1183, 1185-86 (5th Cir.1976), with Marshall v. Sun Petroleum Prod. Co., 622 F.2d 1176, 1179-80 (3d Cir. 1980).[[12\/]] Section 1910.106(d)(2)(i) states:(d) Container and Portable Tank Storage–(1) Scope-(i) General.\u00a0 Thisparagraph shall apply only to the storage of\u00a0 flammable or combustible liquids indrums or other containers (including flammable aerosols) not exceeding 60 gallonsindividual capacity and those portable tanks not exceeding 660 gallons individualcapacity.***(2) Design, construction, and capacity of containers–(i) General.\u00a0 Only approved containers and portable tanks shall be used.\u00a0 Metal containers and portable tanks meeting the requirements of and containingproducts authorized by Chapter 1, title 49 of the Code of Federal Regulations (regulationsissued by the Hazardous Materials Regulations Board, Department of Transportation), shallbe deemed to be acceptable.***(iii) Size.\u00a0 Flammable and combustible liquid containers shall be inaccordance with Table H-12, except that glass or plastic [emphasis added] containers of nomore than 1-gallon capacity may be used for a Class 1A or 1B flammable liquid if:(a)(1) Such liquid either would be rendered unfit for its intended use bycontact with metal or would excessively corrode a metal container so as to create aleakage hazard; and (2) The user’s process either would require more than 1 pint of a Class 1A liquid or morethan 1 quart of a Class 1B liquid of a single assay lot to be used at one time, or wouldrequire the maintenance of an analytical standard liquid of a quality which is not met bythe specified standards of liquids available, and the quantity of the analytical standardliquid required to be used in any one control process exceeds one-sixteenth the capacityof the container allowed under Table H-12 for the class of liquid; or (b) The containers are intended for direct export outside the United States. Table H-12 Maximum Allowable Size of Containers and Portable Tanks Flammable Class IA Container type liquids Class IB Class IC Combustible Class II liquids Class III Glass or approved plastic 1 pt. 1 qt. 1 gal. 1 gal. 1 gal. Metal (other than DOT drums) 1 gal. 5 gal. 5 gal. 5 gal. 5 gal. Safety cans 2 gal. 5 gal. 5 gal. 5 gal. 5 gal. Metal Drums (DOT specifications) 60 gal. 60 gal. 60 gal. 60 gal. 60 gal. Approved portable tanks 660 gal. 660 gal. 660 gal. 660 gal. 660 gal. (Note in table omitted.)\u00a0 Section 1910.106(a)(35) states:Approved unless otherwise indicated, [means] approved, or listed by at leastone of the following nationally recognized testing laboratories:\u00a0 UnderwritersLaboratories, Inc.; Factory Mutual Engineering Corp.[[13\/]] Section 1910.94(c)(1) reads as follows:? 1910.94 Ventilation.* * *(c) Spray finishing operations–(1) Definitions applicable to this paragraph [(c)]–(i)Spray-finishing operations.\u00a0 Spray-finishing operations are employment of methodswherein organic or inorganic materials are utilized in dispersed form for deposit onsurfaces to be coated, treated, or cleaned.\u00a0 Such methods of deposit may involveeither automatic, manual, or electrostatic deposition but do not include metal spraying ormetallizing, dipping, flow coating, roller coating, tumbling, centrifuging, or spraywashing and degreasing as conducted in self-contained washing and degreasing machines orsystems.[[14\/]] Section 1910.107(a)(2) states:(a) Definitions applicable to this section–* * *(2) Spraying area.\u00a0 Any area in which dangerous quantities of flammable vapors ormists, or combustible residues, dust, or deposits are present due to this operation ofspraying processes.[[15\/]] Section 1910.107(n), reads in full as follows:? 1910.107 Spray Finishing using flammable and combustible materials.(n) Scope.\u00a0 This section applies to flammable and combustible finishing materialswhen applied as a spray by compressed air, \”airless\” or \”hydraulicatomization,\” steam, electrostatic methods, or by any other means in continuous orintermittent processes. The section also covers the application of combustible powders bypowder spray guns, electrostatic power spray guns, fluidized beds, or electrostaticfluidized beds.\u00a0 This section does not apply to cut-door spray application ofbuildings, tanks or other similar structures, nor to small portable spraying apparatus notused repeatedly in the same location.[[16\/]] Section 1910.107(m) states:(m) Organic peroxides and dual component coating–(1) Conformance.\u00a0 Allspraying operations involving the use of organic peroxides and other dual componentcoatings shall be conducted in approved sprinklered spray booths meeting the requirementsof this section.[[17\/]] The reasons for the special treatment of organic peroxides areexplained in the appendix to the source standard for section 1910.107.\u00a0 See paragraphA.900, of the Appendix to National Fire Protection Association (NFPA) No. 33–1969,Standard for Spray Finishing Using Flammable and Combustible Materials, reprinted in 3NFPA, Guide to OSHA Fire Protection Regulations, at pp. 33-47 – 33-50 (2d ed. 1972).[[18\/]] Sections 1910.107(c)(2) and (g)(2) read as follows: (c) Electrical and other sources of ignition–(2) Minimum separation.\u00a0 There shall be no open flame or spark producing equipment inany spraying area nor within 20 feet thereof, unless separated by a partition. (g) Operations and maintenance–(2) Cleaning.\u00a0 All spraying areas shall be kept as free from the accumulation ofdeposits of combustible residues as practical, with cleaning conducted daily if necessary.\u00a0 Scrapers, spuds, or other such tools used for cleaning purposes shall be ofnonsparking materials.[[19\/]] Section 1910.107(b)(1) states:(b) Spray booths–(1) Construction.\u00a0 Spray booths shall be substantiallyconstructed of steel, securely and rigidly supported, or of concrete or masonry exceptthat aluminum or other substantial noncombustible material may be used for intermittent orlow volume spraying.\u00a0 Spray booths shall be designed to sweep air currents toward theexhaust outlet.[[20\/]] Section 29 C.F.R. ? 1910.107(b)(5)(i) states in pertinent part: (5) Dry type overspray collectors–(exhaust air filters).\u00a0 In conventional dry type spray booths, overspray dry filters or filter rolls, ifinstalled, 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 (orbooth cross section during spraying operations) shall be not less than 100 linear feet perminute. . . . Visible gauges or audible alarm or pressure activated devices shall beinstalled to indicate or insure that the required air velocity is maintained.[[21\/]] Section 1910.107(b)(5)(iv) states:(5) Dry type overspray collectors–(exhaust air filter).\u00a0 In conventional dry typespray booths, overspray dry filters or filter rolls, if installed, shall conform to thefollowing:***(iv) Space within the spray booth on the downstream and upstream sides offilters shall be protected with approved automatic sprinklers.[[22\/]] Section 1910.107(b)(6) states:(6) Frontal area.\u00a0 Each spray booth having a frontal area larger than 9square feet shall have a metal deflector or curtain not less than 2 1\/2 inches deepinstalled at the upper outer edge of the booth over the opening.[[23\/]] See note 18 supra.[[24\/]] Section 1910.107(c)(7) states:(7) Lamps.\u00a0 Electric lamps outside of, but within twenty (20) feet ofany spraying area, and not separated therefrom by a partition, shall be totally enclosedto prevent the falling of hot particles and shall be protected from mechanical injury bysuitable guards or by location.[[25\/]] Section 1910.134(b)(6) states:? 1910.134 Respiratory protection.* * *(b) Requirements for a minimal acceptable program.(6) Respirators shall be stored in a convenient, clean and sanitary location.”