“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13955 WESTINGHOUSE ELECTRIC CORPORATION, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 11, 1980ORDERBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Inour prior decision in this case, a divided Commission concluded that Respondentfailed to comply with the standard at 29 C.F.R. ? 1910.94(c)(2), which requiresthat spray booths or spray rooms be used to enclose or confine all sprayfinishing operations. Westinghouse Electric Corp., 79 OSAHRC 28\/B8, 7BNA OSHC 1318, 1979 CCH OSHD ? 23,542 (No. 13955, 1979). The majority based itsconclusion that Respondent?s spray finishing operation was not adequatelyconfined on its finding that there was no spatial or physical separation of thespray finishing room from other production activities. Id., 7 BNA OSHCat 1323, 1979 CCH OSHD at 28,521.[*] In dissent, CommissionerBarnako stated:The definition of a spray room does notstate whether or not ?separation? requires a certain minimum distance and theSecretary offered no evidence or argument from which it can be concluded that?performed separately from? does or does not contemplate any particularproximity. In such circumstances I would conclude that the Secretary failed toestablish that Respondent?s operations were not performed separately from otherareas. (Footnote omitted).?Id., 7 BNA OSHC at 1324?25,1979 CCH OSHD at 28,522.??????????? Onappeal, the United States Court of Appeals for the Seventh Circuit concludedthat section 1910.94(c)(2) does not necessarily require spray-finishingoperations to be conducted in a room in which no other activities take placebut might be satisfied by a sufficient spatial or physical separation betweenthe spray finishing operation and other activities. Westinghouse ElectricCorp. v. OSHRC, 617 F.2d 497 (7th Cir. 1980). The court noted that theCommission?s majority and dissenting opinions possibly could be reconciledunder the court?s interpretation. The court further concluded that ?[t]herecord was not developed for the purpose and is not sufficient to support adetermination of whether or not the location of the Westinghouse spray paintingis sufficiently separated from other activities in the particular circumstancesso as to qualify as being conducted in a spray room.? Id. at 503.Accordingly, the court vacated our prior decision and remanded to us ?forfurther proceedings consistent with this opinion to determine whether or notthe spray painting is being conducted in a spray room.? Id. at 503.??????????? Thecourt?s decision requires that the parties be afforded an opportunity topresent further evidence relevant to the separation of Respondent?sspray-finishing operation from other activities in its facility. Accordingly,the case is remanded to Administrative Law Judge Sidney J. Goldstein, who heardthe case in the first instance, to afford the parties the opportunity topresent additional evidence and argument on this point and to determine whetherRespondent?s spray painting operation was performed in a spray room within themeaning of 29 C.F.R. ?\u00a01910.94(c)(1)(iii).?SO ORDERD.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYBY: Gloria W. WhiteActing Executive SecretaryDATED:DEC 11, 1980[*]The recordestablishes that Respondent?s spray finishing operation was not performed in aspray booth. The dispute in this case centers over whether the operation wasperformed in a spray room, which is defined as ?a room in which spray-finishingoperations not conducted in a spray booth are performed separately from otherareas.? 29 C.F.R. ? 1910.94(c)(1)(iii).”