Docket No. 77-3285

ALLIS-CHALMERS CORPORATION

OSHRC Docket No. 77-3285

Occupational Safety and Health Review Commission

January 27, 1982

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

COUNSEL:

Office of the Solicitor, USDOL

Herman Grant, Office of the Solicitor, U.S. Department of Labor

Bruce Petterson, Corporate Employee Relations, Allis-Chalmers Corp., for the employer

OPINION:

DECISION

BY THE COMMISSION:

The Secretary of Labor ("the Secretary") issued citations to Respondent, Allis-Chalmers Corporation ("Allis-Chalmers"), under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"), alleging that Allis-Chalmers had violated section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), by failing to comply with various safety and health standards. The question before us here is whether the Secretary has proved that Allis-Chalmers failed to comply with the standard at 29 C.F.R. § 1910.107(c)(2). n1 Administrative Law Judge Frank B. Zinn issued a decision affirming item 33 of citation 2, which alleged noncompliance with that standard. Allis-Chalmers petitioned for review of that portion of the judge's decision, and former Commissioner Barnako directed review of the issues raised by the petition.

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n1 Section 1910.107(c)(2) provides:

§ 1910.107 Spray finishing using flammable and combustible materials.

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(2) Minimum separation. There shall be no open flame or spark producing equipment in any spraying area nor within 20 feet thereof, unless separated by a partition.

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In its brief on review, Allis-Chalmers frames the issues as:

1. Whether [the Secretary] failed to carry [his] burden of proving that [Allis-Chalmers'] paint booth constituted a "spraying area" within the meaning of 29 CFR 1910.107(c)(2).

2. Whether the Judge improperly relied on 29 CFR 1910.178 in finding [Allis-Chalmers] in violation of 29 CFR 1910.107(c)(2).

Allis-Chalmers manufactures generators and engines in its factory in Harvey, Illinois. There is a spray booth in which the engines and generators are spray-painted. The articles to be painted are moved into and out of the spray booth by a gasoline-powered fork lift truck. Item 33 of citation 2 alleged that Allis-Chalmers did not comply with section 1910.107(c)(2) because the fork lift is spark producing machinery and was in or within 20 feet of a "spraying area." n2

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n2 29 C.F.R. § 1910.107(a)(2) defines the term "spraying area." That section provides:

§ 1910.107 Spray finishing using flammable and combustible materials.

(a) Definitions applicable to this section --

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(2) Spraying area. Any 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.

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The spraying is done every day but not constantly. The spray booth is about 15 feet high, 15 feet wide, and 20 to 25 feet deep. It has three sides and a roof. The engines and generators are put in and taken out the open end. The wall at the back end has an exhaust system with filters to control the paint vapors. The fork lift is used for other jobs as well as for moving the articles to be painted, so it does not necessarily stand by to enter the spray booth as soon as the painting stops.

At the hearing before Judge Zinn, two compliance officers of the Occupational Safety and Health Administration ("OSHA") testified about the spray booth. Neither compliance officer testified as an expert on spray finishing. Compliance officer Morgan testified that he tested the flow of air through the spray booth with a velometer and that the readings signified that the filters in the booth "do not adequately withdraw the potentially combustible or flammable vapors out." He did not take any tests to determine the level of paint vapors in the atmosphere. He acknowledged that "it cannot be determined without tests" [*4] whether a dangerous atmosphere exists but stated that the air flow tests indicated the "possibility" that combustible vapors could accumulate.

The other compliance officer, Mr. Scott, testified that both the paint and the thinner being used were flammable, but he did not know the name or composition of either the paint or the thinner being used. He testified that during spray-painting the paint and solvents are atomized into a fine mist that gives off fumes and that unless the fumes are properly exhausted they can reach an explosive concentration and cause a fire or explosion.

Compliance officer Scott did not take any tests to determine the concentration of vapors in the booth. He testified that he agreed with Mr. Morgan's opinion about the need for tests, stating that it is not possible to "be certain" whether dangerous quantities of vapors are present without a test. He stated, however, that the paint residues on the walls and floor of the spray booth can be dangerous because they too give off ignitable fumes.

Mr. Scott further testified that he saw the gasoline-powered fork lift truck taking large generators into the booth to be painted, and removing them when the painting [*5] had been completed. He stated that this fork lift had several potential sources of ignition and was not the kind of truck approved for use in a location where there may be explosive concentrations or ignitable mixtures. He did not see any spray-painting being done while the fork lift was in the spray booth.

Allis-Chalmers' manager of industrial safety and security testified it was not necessary for the concentration of vapors to reach the lower explosive limit in order to be dangerous, that he would not want the concentration to reach one fifth of the lower explosive limit. He testified that it would be necessary either to measure the gases in the atmosphere or to perform certain calculations in order to determine whether dangerous quantities of flammble vapors were present and that it was necessary to know what kinds of paint and solvent were being used.

Judge Zinn affirmed the item. He found that the gasoline-powered fork lift was spark producing equipment and that the fork lift was not approved for use in locations where dangerous concentrations of flammable vapors might accumulate. The judge stated that there were "problems with the ventilating system", and accepted [*6] the compliance officer's opinion that there was a dangerous concentration of vapors, stating that the opinion "makes good sense, even though no quantitative analysis was taken."

Allis-Chalmers petitioned for review on the grounds that the judge erred in finding that the spray booth constituted a spraying area under the definition at section 1910.107(a)(2), that the judge erred in relying on section 1910.178 to find that the fork lift truck was spark-producing equipment, and that portions of his summary of the evidence were incorrect.

In its brief on review, Allis-Chalmers argues that the Secretary has not proved that the booth constituted a spraying area because he did not establish that there were dangerous quantities of flammable vapors. Allis-Chalmers argues that the testimony of the compliance officers cannot establish that dangerous quantities were present because they took no tests to establish the concentration of vapors in the air and did not even know what kind of paint was being used. Allis-Chalmers further argues that the dried paint residues within the booth are not evidence of a hazardous atmosphere.

The Secretary did not file a brief.

III

We find that the Secretary [*7] has not established that Allis-Chalmers' spray-painting booth is a "spraying area" within the meaning of section 1910.107(a)(2). The Commission has held that to prove that a cited area is a "spraying area," the Secretary must show that either dangerous quantities of flammable vapors or mists were present, or that combustible residues, dusts, or deposits were present. Ed Jackman Pontiac-Olds, Inc., 80 OSAHRC 26/D14, 8 BNA OSHC 1211, 1215, 1980 CCH OSHD P24,351, p. 29,681 (No. 76-20, 1980). We find insufficient evidence on both these points.

Even if we assume that dangerous quantities of mists or vapors were present in the booth at some time, there is no evidence that the fork lift was operated within 20 feet of the booth while that alleged condition existed. No spraying was done while the fork lift was in the booth. On the occasion observed by the compliance officer, the truck did not enter the booth for five minutes after the spraying was finished. There is nothing in the record to establish how long the allegedly dangerous quantities of fumes would continue to exist after the spraying stopped, or to indicate that the fork lift ever entered the booth immediately after spraying [*8] was completed.

We also cannot find that there were "combustible residues" in the spray booth within the meaning of section 1910.107(a)(2). When compliance officer Scott was asked how he could have alleged that a spraying area existed where he took no tests to determine the concentration of vapors, he replied that he "could see the excess residue" in the booth. The compliance officer also testified that the residues are "an accumulation of other sprays from the spraying that had been done in the course of time" and that the paint and the solvent being sprayed were both flammable. This does not show, however, that the residues were combustible. Although Mr. Scott also testified that the residues give off flammable fumes, this goes to whether there were dangerous quantities of vapors or mists in the booth rather than to the combustibility of the residues. In sum, we find insufficient evidence that the residues were combustible. n3

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n3 Commissioner Cottine concurs in finding insufficient evidence of "combustible residues" within the meaning of section 1910.107(a)(2). Compliance Officer Scott only testified that the liquid paint residues gave off "flammable fumes". He did not identify the specific contents of the spray paint and never testified that the residues were "combustible" in either their liquid or solid states. The terms flammable and combustible define distinct classes of liquids and are not generally interchangeable. 29 C.F.R. § § 1910.106(a)(18), (a)(19). Moreover, section 1910.107(a)(2) identifies two separate categories for the purpose of defining a spraying area: (1) flammable mists or vapors, and (2) combustible residues, dusts or deposits. With respect to the residues involved in this case there is insufficient evidence to show that they are properly considered "combustible residues" under the definition of a spraying area in section 1910.107(a)(2).

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Accordingly, the judge's decision is reversed as to item 33 of citation 2; the item is vacated.

SO ORDERED.