Docket No. 77-1133

AIR-KARE CORPORATION

OSHRC Docket No. 77-1133

Occupational Safety and Health Review Commission

October 30, 1981

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Richard L. Barnes, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case results from a citation issued by the Secretary of Labor ("the Secretary") to Air-Kare Corporation ("Air-Kare") under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). The citation alleged that Air-Kare violated section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), by failing to comply with, among others, the standards found at 29 C.F.R. § 1910. 94(c)(4)(i) n1 and 29 C.F.R. § 1910.107(c)(6). n2 After a hearing, Administrative Law Judge Harold O. Bullis affirmed those two items. Air-Kare petitioned for review of the judge's decision with respect to those items, and former Commissioner Barnako directed review on the issues raised in Air-Kare's petition. n3

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n1 Section 1910.94(c)(4)(i) provides:

§ 1910.94 Ventilation.

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(4) Design and construction of spray rooms. (i) Spray rooms, including floors, shall be constructed of masonry, concrete, or other noncombustible material.

n2 Section 1910.107(c)(6) provides:

§ 1910.107 Spray finishing using flammable and combustible materials.

* * *

(6) Wiring type approved. Electrical wiring and equipment not subject to deposits of combustible residues but located in a spraying area as herein defined shall be of explosion-proof type approved for Class I, group D locations and shall otherwise conform to the provisions of Subpart S of this part, for Class I, Division 1, Hazardous Locations. Electrical wiring, motors, and other equipment outside of but within twenty (20) feet of any spraying area, and not separated therefrom by partitions, shall not produce sparks under normal operating conditions and shall otherwise conform to the provisions of Subpart S of this part for Class I, Division 2 Hazardous Locations.

n3 The Secretary petitioned for review of an item the judge vacated. The Secretary's petition was not granted.

[*2]

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Air-Kare performs structural repair of aircraft in Tulsa, Oklahoma, during which Air-Kare frequently spray-paints the aircraft being repaired. The items before us arose out of that spray-painting operation.

Air-Kare rents space in a hangar that was built in the late 1930's. The hangar is approximately 100 feet wide and 300 feet long. Air-Kare does its structural repair work and spray-painting in an area approximately 50 feet wide and 100 feet long that is located in the northeast corner of the hangar and is separated from the rest of the hangar by a curtain from the ceiling to the floor. This part of the hangar has been used as an aircraft paint shop since the hangar was built, except for a period from 1970-1972. The remainder of the hangar is occupied by one or more other businesses.

The compliance officer who conducted the inspection testified that he holds a B.S. degree in physics, an M.S. in physics, and an M.S. in nuclear engineering. He testified that he observed employees spray-painting an aircraft for approximately 45 minutes. The spraying was done in the northeast corner of Air-Kare's [*3] area. The paint being used was DuPont Imron, which contains Xylene, toluene, and petroleum ether, all of which are flammable. The compliance officer took photographs showing the spray in the air. He testified that, in his opinion, there was a dangerous concentration of paint vapors in Air-Kare's workplace. He also stated that there were deposits of paint on the air compressor and on some of the electrical fixtures, and he presented photographs taken during the inspection to illustrate this condition.

The compliance officer testified that the lower explosive limit of these paint vapors is 1.1% of the air by volume and that the concentration of vapors need not reach the lower explosive limit throughout the entire area in order for an explosion to occur. If there is an explosive concentration anywhere in the area, it can ignite and spread throughout the area to consume any flammable vapors in the atmosphere. In order for an explosion to occur, there must be an explosive concentration of vapors, a source of ignition, and oxygen. Oxygen is available in the air. The compliance officer testified that, because a dangerous concentration of vapors cannot be avoided in a spray-painting [*4] operation, the only way to eliminate the hazard of an explosion is to eliminate all potential sources of ignition from the area. He testified that sources of ignition should be at least 20 feet from the spraying operation.

The compliance officer testified that he observed a number of potential sources of ignition near Air-Kare's spraying operation: unguarded light fixtures, unsealed conduits for wiring, circuit breakers, and an air compressor used in the spraying. This equipment was not approved for use in areas where there are dangerous amounts of vapors. The conduits for the wires were not threaded or sealed at the connections. The light fixtures had unguarded bulbs, and neither the light fixtures nor the circuit breakers were approved for use in a spraying area of this kind. The compliance officer testified that an Air-Kare employee was spraying within ten feet of the noncomplying electrical equipment. He testified that the spray area could be brought into compliance either by replacing the fixtures with electrical equipment approved for use in such areas or by relocating the compressor and the circuit breakers and other electrical fixtures further away from the spraying. [*5]

The compliance officer also testified that part of the wood frame of the ceiling was exposed where ceiling tiles were missing. In the event of an explosion, the wood could catch fire, the compliance officer testified. He stated that the wood should be covered with a noncombustible material.

A former employee of Air-Kare testified that "the overspray was so concentrated that it was difficult to see." He further testified that he had come within five feet of the air compressor and the light fixtures when he was spray painting.

Air-Kare's president is a retired U.S. Air Force Chief Master Sergeant in maintenance. When he was in the Air Force, he was responsible for the safety program of his unit. He testified that it was difficult to get an airplane within five feet of the compressor and that an airplane would not normally be parked that close. He stated that the overspray on the compressor was dried paint but did not consider dried paint to be a hazard. He also testified that he did not believe that an explosive concentration of vapors would have accumulated in Air-Kare's operation because the spray gun held only one quart of paint. He explained that when the gun was empty, [*6] the employee had to stop spraying and refill it, so the paint suspended in the air had a chance to settle. He doubted whether any of the lights or electrical components in that end of the hangar were in compliance with OSHA standards. He also stated that the landlord did not want to rewire and put in new fixtures.

The compliance officer testified in rebuttal that it does not require a large amount of spraying to be done in order to have an explosive concentration of vapors. An explosive concentration can occur "shortly after they start" spraying.

Judge Bullis affirmed both the items before us. He found that the compliance officer's testimony was sufficient to establish the existence of dangerous quantities of flammable vapors, that the electrical equipment did not comply with the requirements of the standard, and that spraying occurred within 5 to 10 feet of the noncomplying electrical equipment. He determined that these facts established noncompliance with section 1910.107(c)(6).

The judge also found that the exposed wood frame in the ceiling constituted noncompliance with 29 C.F.R. § 1910.94(c)(4)(i) and found a violation.

III

In its petition for review, Air-Kare argues [*7] that the judge made a fundamental error when he concluded that the Secretary had proved the extent of the "spray area" within Air-Kare's "huge hanger [sic] facility." Air-Kare argues that the judge erroneously found that the spray gun with a one-quart capacity created an explosive hazard throughout Air-Kare's 100,000 cubic-foot workplace, citing Bethlehem Fabricators, Inc., 76 OSAHRC 62/C2, 4 BNA OSHC 1289, 1976-77 CCH OSHD P20,782 (No. 7176, 1976) and a number of unreviewed administrative law judge decisions. Air-Kare contends that the Secretary failed to prove that an explosive concentration of vapors existed anywhere in the hangar. Air-Kare also argues that the judge erred in failing to consider that the hangar had been used for painting for over forty years without an accident. Finally, Air-Kare argues that the judge erred by failing to consider the Secretary's "inconsistent position" in not citing Air-Kare for excessive levels of air contaminants under 29 C.F.R. § 1910.1000. n4 Air-Kare asserts that the levels of chemical in the paint necessary to constitute an explosive concentration are greater than those permitted by section 1910.1000, so that standard must [*8] have been violated too, if an explosive concentration existed.

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n4 Section 1910.1000 requires that employee exposure to various toxic air contaminants be limited in accordance with the specific requirements set forth in various paragraphs of the section.

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The Secretary argues in his brief on review that it is not necessary to show that dangerous quantities of flammable vapors existed throughout the entire Air-Kare work area. He takes the position that he need only show that they occurred in the area of an ignition source. The Secretary also argues that dangerous quantities of flammable vapors need not be proved by scientific tests and that the testimony of the compliance officer "raised a compelling inference that dangerous quantities of flammable vapors were present in Air-Kare's spraying operation." The Secretary further argues that Air-Kare's spraying operation qualified as a "spray room" within the meaning of 29 C.F.R. § 1910.94(c)(1)(iii).

We agree with the judge's findings and conclusions. We affirm his [*9] decision as to both items on review.

We find that a preponderance of the evidence supports the judge's determination that Air-Kare did not comply with the standard at 29 C.F.R. § 1910.107(c)(6). At the outset, we reject Air-Kare's argument that dangerous quantities of flammable vapors or mists or combustible residues, dusts or deposits must be found throughout an area in order to establish the existence of a spraying area. The term "spraying area" is defined at 29 C.F.R. § 1910.107(a)(2) as "[a]ny area in which dangerous quantities of flammable vapors or mists or combustible residues, dusts or deposits are present due to the operation of spraying processes." (Emphasis added).

A spraying area is established if the evidence shows either the presence of combustible residues, dusts, or deposits, or the presence of dangerous quantities of flammable vapors or mists. Ed Jackman Pontiac-Olds, Inc., 80 OSAHRC 26/D14, 8 BNA OSHC 1211, 1980 CCH OSHD P24,349 (No. 7620, 1980). Here, a preponderance of the evidence shows the presence of dangerous quantities of flammable vapors. It is therefore established that Air-Kare was operating a "spraying area" and was required to comply with [*10] the cited standard.

We find that the testimony of the compliance officer establishes the presence of dangerous quantities of flammable vapors. Opinion evidence, even from a layman, is admissible and is probative. Ed Jackman Pontiac-Olds, Inc., supra. Although he did not take any scientific tests, the compliance officer made observations, determined the nature of substances being sprayed, and formed an opinion as to the levels of flammable vapors present. We also note the testimony of a former employee regarding the concentration of mists or vapors which he referred to as "overspray." Although Air-Kare's president opined that an explosive concentration of paint vapors could not build up throughout the work area because a small amount of paint was sprayed at one time, his testimony does not contradict the compliance officer's testimony that a dangerous level was found in the immediate vicinity of the spraying. Furthermore, the compliance officer's testimony is offset by neither the absence of past accidents nor by the Secretary's failure to issue a citation for excessive levels of toxic air contaminants.

Air-Kare argues that the judge neglected to consider the fact that [*11] spray-painting has been done in that part of the hangar for over forty years without an accident. While we agree that this fact may be weighed against the compliance officer's opinion testimony in determining whether the vapors in the air had reached a dangerous concentration, the mere absence of past accidents does not prove that there is no danger. See Winn-Dixie Stores, Inc., 78 OSAHRC 35/B11, 6 BNA OSHC 1598, 1978 CCH OSHD P22,712 (No. 76-1733, 1978); Arkansas-Best Freight Systems, Inc., 75 OSAHRC 35/D6, 2 BNA OSHD 1620, 1974-75 CCH OSHD P19,326 (No. 2375, 1975), aff'd, 529 F.2d 649 (8th Cir. 1976).

Air-Kare also argues that we should give less weight to the compliance officer's opinion that there were dangerous levels of flammables in the hangar because no citation was issued for noncompliance with the standard at 29 C.F.R. § 1910.1000. Air-Kare asserts that the concentration of paint necessary to reach the lower explosive level is much greater than the levels of Xylene or toluene (both of which are found in the paint Air-Kare was spraying) permitted under section 1910.1000. If there were dangerous levels of paint in the air, Air-Kare reasons, there were [*12] also violative levels of air contaminants and an additional citation would have been issued.

We reject this argument. To find a § 1910.1000 violation the Secretary must show (1) an excessive amount of air contaminants in the atmosphere and either (2) a failure to use feasible engineering and administrative controls or (3) a failure to use protective equipment such as respirators or other protective measures to keep actual employee exposure within the required limits. Section 1910.1000(e). The photographs in evidence show that at least some of Air-Kare's employees wore respirators. Air-Kare has not shown that there was either an atmospheric concentration or employee exposure in excess of the levels permitted under § 1910.1000. Under these circumstances, we will not speculate on the reasons why no citation under § 1910.1000 was issued. See Fleming Foods of Nebraska, Inc., 77 OSAHRC 196/C12, 6 BNA OSHC 1233, 1978 CCH OSHD P22,889 (No. 14484, 1977).

For the above reasons we find that a preponderance of the evidence demonstrates that dangerous quantities of flammable vapors were present within the meaning of section 1910.107(a)(2) and thus conclude that Air-Kare's operation [*13] constituted a spraying area within the meaning of the standard. Inasmuch as it is conceded that the electrical fixtures did not comply with the requirements of the standard cited, and there is unrebutted evidence that spraying was done within five to ten feet of the fixtures, we find noncompliance with section 1910.107(c)(6).

We also find that the evidence proves noncompliance with the standard at 1910.94(c)(4)(i), which requires that spray rooms be constructed of noncombustible materials. Since it is uncontroverted that part of the wood frame of the ceiling was exposed, the only question is whether the hangar was shown to be a spray room. We find that it was.

That term is defined at 29 C.F.R. § 1910.94(c)(1)(iii) as "a room in which spray-finishing operations not conducted in a spray booth are performed separately from other areas." This definition does not require any showing of dangerous quantities of flammable vapors or mists. Westinghouse Electric Corp., 79 OSAHRC 28/B8, 7 BNA OSHC 1318, 1979 CCH OSHD P23,542 (No. 13955, 1979), rev'd on other grounds and remanded, 617 F.2d 497 (7th Cir. 1980).

Air-Kare's area is separated by a curtain from the rest of the hangar [*14] and the activities conducted there. The work done by Air-Kare, structural repairs on airplanes, repairs to the skin, and painting the repaired areas, is analogous to that performed in an automobile body shop. The facts in this case are similar to those in Ed Jackman Pontiac-Olds, Inc., supra, where we found that an automobile dealer's body shop was a spray room. There, the spray-painting was regularly done in the same area, which was separated from all other activities except body repair work. The spray-painting constituted an integral part of that body work, and the fact that the body work was performed in the same room as the spraying was held not to affect the room's classification as a spray room. The reasoning of that case controls here. Applying the Ed Jackman rationale to the facts of this case, we conclude that Air-Kare's operation constituted a "spray room" and that a violation has been proved.

Accordingly, the judge's decision finding Air-Kare in violation of the Act for failure to comply with the standards at 29 C.F.R. § 1910.94(c)(4)(i) and 29 C.F.R. § 1910.107(e)(6) is affirmed and penalties of $0 and $150 respectively, are assessed.

SO ORDERED.

DISSENTBY: ROWLAND

DISSENT:

[*15]

ROWLAND, Chairman, Dissenting:

I dissent from the majority decision. For the reasons that follow, I conclude that the Secretary has not established that Respondent failed to comply with the standards at 29 C.F.R. § § 1910.107(c)(6) and 1910.94(c)(4)(i).

Alleged Violation of 29 C.F.R. § 1910.107(c)(6)

As the majority correctly states, in order to prove a violation of this standard, the Secretary must demonstrate the existence of a "spraying area" as defined at § 1910.107(a)(2), specifically that either "dangerous quantities" of flammable vapors or mists, or "combustible" residues, dusts, or deposits were present in Respondent's spray-painting operation. However, in holding that the Secretary proved the existence of "dangerous quantities" of flammable vapors through the opinion testimony of the compliance officer, n5 the majority relies on an overly broad generalization that opinion testimony by lay witnesses is both admissible and probative. Under Federal Rule of Evidence 701, which governs opinion testimony by lay witnesses, and the federal case law regarding opinion testimony, the admissibility of such testimony and, if admitted, the weight to which it is entitled, depend [*16] upon the circumstances of the particular case. In this case, assuming that the testimony of the compliance officer was properly admitted, it is not sufficient to establish that "dangerous quantities" of flammable vapors were present in Respondent's workplace.

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n5 Although the majority decision notes the testimony of Respondent's former employee that the vapors appeared heavily concentrated, it does not clearly indicate whether it considers this statement corroborative of the compliance officer's testimony. Since the former employee testified only with respect to the appearance of the vapors, his testimony is on its face inadequate to show that the concentrations existing were in fact hazardous.

Similarly, although the majority decision notes testimony regarding deposits of paint on various surfaces, it does not conclude that the Secretary proved the second part of the definition of a "spraying area," that is, the presence of combustible residues, dusts, or deposits. There is no evidence that any residue or deposits were in fact combustible, and the Secretary does not contend that a violation should be found based on the nature of the paint deposits.

[*17]

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Federal Rule of Evidence 701 provides as follows:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.

This rule is read together with Federal Rule of Evidence 602, which provides that no witness may testify to a matter "unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." Thus, in order for lay opinion testimony to be admissible, the witness must testify from personal knowledge and his testimony must satisfy the two requirements set forth in Rule 701. First, his opinion or inference must be one which the average person would form on the basis of the perceived facts. 3 Louisell and Mueller, Federal Evidence § 376 at 618-20 (1979); 3 Weinstein and Berger, Weinstein's Evidence P701[02] at 701-10 to -11 (1978); Cokley v. Colorado, 310 F. Supp. 1403 (D. Colo. 1969). Second, the opinion [*18] itself must be sufficiently specific to be meaningful to the trier of fact. As the Advisory Committee's note to Rule 701 explains,

The rule assumes that the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage . . . . If, despite these considerations, attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule.

In the case now before us, Respondent did not object to the compliance officer's opinion testimony and does not argue before us on review that his testimony should not be considered as part of the record. Rather, Respondent contends that the compliance officer's testimony is not sufficient to establish the existence of a "spraying area" within the meaning of the standard. That is, Respondent challenges the weight the judge assigned to the testimony. Absent objection by Respondent, I would not conclude that the judge erred in admitting the compliance officer's testimony. n6 I [*19] agree with Respondent that the judge erred in finding the compliance officer's testimony sufficient to show the existence of dangerous quantities of flammable vapors.

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n6 Whether the witness's opinion is admissible normally is determined by the foundation laid for the opinion by the party offering the witness, Teen-Ed, Inc. v. Kimball Intern, Inc., 620 F.2d 399 (3d Cir. 1980); SEC v. Texas Gulf Sulphur Co., 446 F.2d 1301 (2d Cir. 1971), cert. denied, 404 U.S. 1005 (1971).

In my view the preferred practice is that the party against whom opinion testimony is offered timely object to the testimony and insist that the offering party lay a foundation for the testimony, so that the judge will be able to make an initial determination whether to admit the testimony.

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The weight accorded opinion testimony depends upon a number of factors, including the knowledge and experience of the witness in the subject matter of his testimony, the self-interest of the witness, and the reasoning with which his opinion is supported. [*20] Teen-Ed, Inc. v. Kimball Intern, Inc., 620 F.2d 399 (3d. Cir. 1980); Fiedler v. McKee Corp., 605 F.2d 542 (10th Cir. 1979); Mannesman-Meer, Inc. v. United States, 433 F.2d 829 (C.C.P.A. 1970); Mitchell v. City Ice Co., 273 F.2d 560 (5th Cir. 1960). In this case, as the majority notes, the compliance officer's educational background is in the fields of physics and nuclear engineering. Although he testified that he has conducted a number of inspections of spraying operations, the record does not indicate his experience, if any, with spray painting operations of the type performed by Respondent. n7 On the other hand, the compliance officer demonstrated that he has some familiarity with the principles governing the creation of an explosive mixture. As the majority notes, he stated that the lower explosive limit of the paint used by Respondent was 1.1 percent of air by volume, which he described as the minimum concentration of vapor in air necessary for self-sustained combustion, such as an explosion. He also testified that the flash point of the paint is between 20 and 73 degrees Fahrenheit, explaining that 20 degrees is the minimum temperature at which sufficient [*21] vapors could be released to form an explosive mixture.

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n7 Cf. Randolph v. Collectramatic, Inc., 590 F.2d 844 (10th Cir. 1979) (restaurant owner with five years experience using pressure cookers of various types not qualified to give an opinion regarding the feasibility of improving the safety of pressure cookers in terms of the engineering aspects of the design).

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It is apparent from this testimony that the determination whether flammable vapors exist in a dangerous concentration is based on an exact and quantifiable concentration of flammable vapor in the ambient air. Yet the compliance officer's opinion that a dangerous concentration existed in Respondent's facility, which the majority accept as dispositive of the issue, is premised not on the results of tests or any other analysis of the ratio of flammable vapor to air produced in Respondent's operation but rather merely on his supposition that as a spraying operation continues an explosive mixture will necessarily be produced. n8 Since the compliance officer [*22] did not test or otherwise measure the actual concentration of vapor in the air, there is no evidence from which one could conclude that his assumption is justified in the circumstances existing in Respondent's operation. The compliance officer's unsupported opinion is not sufficient to establish the existence of a dangerous quantity of flammable vapors at Respondent's worksite. As the court observed in American Smelting & Refining Co. v. OSHRC, 501 F.2d 504, 511 (8th Cir. 1974), "[w]here hazards are recognized but not detectable by the senses, common sense and prudence demand that instrumentation be utilized." Cf. North American Rockwell Corp., 75 OSAHRC 43/A6, 2 BNA OSHC 1710, 1974-75 CCH OSHD P19,464 (Nos. 2692 & 2875, 1975), aff'd sub. nom. Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976) (citation alleging exposure of employees to excessive concentrations of airborne asbestos fibers based on measurements taken by the Secretary vacated since prior tests conducted by the employer indicated that exposure levels were not excessive).

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n8 The majority's characterization of the compliance officer as testifying that he found a "dangerous level" in the immediate vicinity of the spraying operation is misleading. The compliance officer did not testify that an ignitable mixture in terms of the explosive limits of the paint existed at the time of his inspection. Rather, he conceded on cross-examination that he considered the existing concentration hazardous because the lower explosive limit could be reached as the operation continued. The entirety of his testimony indicates that he considered Respondent's operation to present a possible or potential hazard that the paint could ignite.

In this respect, the majority opinion accepts as sufficient the compliance officer's opinion while dismissing as inadequate the contrary opinion of Respondent's president. The majority states no justification for this disparate treatment of the two witnesses' opinions.

[*23]

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The compliance officer's opinion also cannot be considered dispositive because it is not directed to the requirements of the standard in issue. The definition of a "spraying area," quoted in the majority opinion, states that such an area is one in which dangerous quantities of flammable vapors "are present . . . ." (emphasis supplied). Under this definition, the question before us is whether the concentration was in excess of the lower explosive limit at the time of the alleged violation -- not at some unspecified future time. Since the compliance officer's opinion is predicated only on his belief as to what could result in Respondent's operation, n9 it is of little value to the Commission in deciding the issue before us.

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n9 See note 8 supra.

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Therefore, contrary to the majority decision, a preponderance of the evidence does not support the judge's finding that Respondent failed to comply with 29 C.F.R. § 1910.107(c)(6), [*24] and the judge erred in affirming this item of the citation.

Alleged Violation of 29 C.F.R. § 1910.94(c)(4)(i)

Unlike the provisions of § 1910.107 which refer to "spraying area," this standard uses the terminology "spray room" which, as the majority notes, is defined as a room in which spray-finishing operations not conducted in a booth "are performed separately from other areas." As the majority also observes, under the Commission precedent in Westinghouse Electric Corp., 79 OSAHRC 28/B8, 7 BNA OSHC 1318, 1979 CCH OSHD P23,542 (No. 13955, 1979), this definition does not require the Secretary to prove the existence of "dangerous quantities" of flammable vapors.

I need not at this time consider whether Westinghouse Electric, supra, was correctly decided, n10 nor need I determine whether Respondent's facility was shown to be a spray room under the definition at § 1910.94(c)(1)(iii). In my view, assuming the cited standard is applicable, the Secretary failed to prove that Respondent was not in compliance with the terms of the standard.

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n10 In Westinghouse Electric, supra, the Commission overruled a prior precedent, Bethlehem Fabricators, Inc., 76 OSAHRC 62/C2, 4 BNA OSHC 1289, 1976-77 CCH OSHD P20,782 (No. 7176, 1976), which held that § 1910.94(c) must be read together with § 1910.107 so that to prove a violation of either standard the Secretary must prove that the spray finishing operation in question produced dangerous quantities of emissions. I was not a member of the Commission when either case was decided.

[*25]

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The standard, which is entitled "Design and construction of spray rooms," requires that such rooms be constructed of noncombustible material. The compliance officer's testimony is that this standard was violated because some of the existing ceiling tiles were missing, exposing combustible, wooden framing. A photograph introduced into evidence plainly shows tiles missing, and framing exposed, in only a very small area of the ceiling. The compliance officer did not testify that the condition of the ceiling was hazardous in any other respect, and a fair inference from his testimony is that he did not consider the ceiling tiles themselves to be combustible.

I would conclude on this evidence that the ceiling was in fact designed and constructed of noncombustible materials through the installation of the ceiling tiles. The compliance officer's testimony does not show that the ceiling was designed or constructed in an unsafe manner but rather that it was not maintained in a safe condition because not all of the tiles were in place. The cited standard, however, does not impose a maintenance requirement. [*26] Therefore, Respondent has not failed to comply with the terms of the standard and this item of the citation should be vacated. Cf. United States Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1977-78 CCH OSHD P21,795 (Nos. 10825 & 10849, 1977) (standard imposing design requirements on overhead crane does not apply to the performance of maintenance work on such cranes).