Petition for Review of an Order of the Occupational Safety and Health Review Commission.
Before Tone, Wood and Cudahy, Circuit Judges.
The issue in this case is the interpretation to be given two related standards regulating spray-finishing operations promulgated under the Occupational Safety and Health Act of 1970.*fn1 The two standards are 29 C.F.R. § 1910.94(c) and 29 C.F.R. § 1910.107.*fn2
Westinghouse Electric Corporation was cited by the Occupational Safety and Health Administration for an alleged non-serious violation of 29 C.F.R. § 1910.94(c)(2) as a result of an inspection on June 6, 1975 of its Muncie, Indiana, large transformer plant.*fn3
There is no substantial dispute about the facts. Just prior to shipment the large transformers manufactured at Muncie are painted by four painters on three shifts using electrostatic paint spray equipment.*fn4 In 1975, 134 transformers were painted and shipped. The painting of each transformer entails approximately 44 minutes. Following an employee complaint, an OSHA Compliance Officer inspected the Westinghouse premises and upon concluding that the painting was not confined to a spray booth or spray room the citation was issued,*fn5 but without an actual observation of the painting operation, or sampling the air for contaminates or inquiry as to the nature of the paint material being used.
The issue was joined before the administrative law judge. The position taken by the Secretary of Labor was that no proof of harmful or hazardous conditions was necessary to show a violation as the spraying operation in any event was required under 29 C.F.R. § 1910.94(c)(2) to be conducted either in a spray booth or a spray room, and it was not. At that point Westinghouse did not argue that the painting was not done in a spray room or spray booth, but did dispute that either type room was necessary unless it was first established that the spraying caused dangerous or hazardous conditions under 29 C.F.R. § 1910.107(a)(2).
Since the circumstances closely paralleled the situation in Secretary of Labor v. Bethlehem Fabricators, Inc., OSHRC Docket No. 7176, (1976-1977) O.S.H. Dec. (CCH) P 20,782 (June 11, 1976), published after the Westinghouse citation was issued, the administrative law judge relied on Bethlehem. He held that Section 1910.94(c) should not be considered in isolation but should be examined in relation to other standards on the same subject and in particular Section 1910.107(a)(2). It was incumbent, he held, on the Secretary when combustible materials were used, as in this case, to satisfy the requirements of Section 1910.107(a)(2). That section defines a spraying area as any area in which dangerous quantities of flammable vapors or mist, or combustible residues, dusts, or deposits are present due to the operation of the spraying process. Since the Secretary's evidence had not shown that there were hazards or dangers to the employees, the administrative law judge found that the company was not in violation of 29 C.F.R. § 1910.94(c)(2) requiring a spray booth or a spray room.
When the decision of the administrative law judge was reviewed by the full Commission, Bethlehem was overruled.*fn6 This time the Commission held that in spite of many cross references between Section 1910.94 and Section 1910.107, the standards need not be read in conjunction. The Commission relied upon what it perceived to be the plain reading of Section 1910.94(c)(2) which by its terms requires that all spray-finishing operations be enclosed or confined in a spray room or spray booth regardless of whether hazards exist or not, with an exception not applicable here. That view of the relationship of the two standards is sought to be justified by a discussion of the origin and adoption of the two sections derived from different sources. The Commission majority concludes that the drafters intended that all spray-finishing operations be enclosed or confined.*fn7 It is the Commission's conclusion that 1910.94(c) (2) and 1910.107 are addressed to different hazards and working conditions. Therefore it finds that Section 1910.94(c)(2) regulates the use of spray booths or spray rooms for all spray-finishing operations, whereas 1910.107 provides ventilation requirements for those operations otherwise governed by 1910.94(c) which employ flammable or combustible materials.
In dissent, Commissioner Baranko argues that the two standards cannot be so neatly divided, as he finds it obvious that the two standards are not only directed toward different hazards but also to similar aspects of the same hazard. He further argues that it cannot be shown that 1910.107 is directed only to fire hazards, as 1910.94(c) also has provisions directed toward fire hazards. Commissioner Baranko departed from his majority view in Bethlehem as he now agrees that the Secretary need not establish that dangerous quantities of emissions are produced by spray paint operations before a spray booth or spray room is required under 1910.94(c)(2). However, Commissioner Baranko does not agree that 1910.94(c) and 1910.107 are directed to entirely different hazards and working conditions and that the existence of hazards is totally irrelevant in determining whether 1910.94(c)(2) has been violated. Therefore, he argues that in order to establish a violation of 1910.94(c)(2) the Secretary must show precisely in what respect the spray painting operation was deficient.
Further, Commissioner Baranko disputes that the evidence showed that Westinghouse was not using a spray room as distinguished from a spray booth. A spray room "is a room in which spray-finishing operations not conducted in a spray booth are performed separately from other areas"*fn8 (emphasis supplied). The standard does not specify what "separately" means in terms of distance or other conditions. Therefore, Commissioner Baranko argues that the Secretary failed to establish that the spraying was not performed separately from other areas in the room because if sufficiently separated it would qualify as a spray room. He then concludes that since Westinghouse was not shown to be in violation of the definitional requirement of a spray room, a violation could result only from a violation of a design or mechanical specification for a spray room, which he finds not to exist in the record.
In coming to our own conclusion in this case, we shall not endeavor to pursue all the arguments on both sides. It is obvious that the two standards are not easily intelligible to those subject to them, to those who administer them, or to those of us who try to determine what they mean. It is not our task to rewrite the standards. We do regret, however, that the thought of rewriting the standards apparently has not occurred to the Secretary. Recognizing that the purpose of the standards is to protect the health and safety of employees, although confusingly attempted, we attempt a rational resolution of the problem.
As in Diebold, Inc. v. Marshall, 585 F.2d 1327, 1334 (6th Cir. 1978), given the "inartful drafting" of the two sections "neither interpretation can be branded as particularly unreasonable." Since some of the ambiguities resulting from deficient drafting will remain in spite of our decision, rewriting by the Secretary will remain worthy of consideration. Rewriting would be expected to avoid the Commission's own shifting interpretation as well as likely divergent views arising in the various circuits. We are mindful of the great deference we owe to the Commission's reasonable interpretation of the Secretary's regulations, at least under ordinary circumstances. That deference is dubiously bestowed, however, when the Commission's view taken of the tangle between the two sections is reversed within a short period of time seemingly with the change of a single commissioner, and each of the Commission's decisions has prompted a dissent.
No one claims that Westinghouse had even an inadequate "spray booth." The definition of a spray booth is set forth at 29 C.F.R. § 1910.107(a)(3) and is incorporated by reference at 29 C.F.R. § 1910.94(c)(ii), and provides:
Spray booth. A power-ventilated structure provided to enclose or accommodate a spraying operation to confine and limit the escape of spray, vapor, and residue, and to safely ...