August 12, 2004

Mr. Paul R. Thomson, Jr.
P.O. Box 14125
Roanoake, Virginia 24038-4125

Dear Mr. Thomson:

This is in response to your correspondence dated December 1, 2003 to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs. This letter constitutes OSHA's interpretation of only the requirements discussed and may not be applicable to any questions not delineated within your original correspondence. You had specific questions regarding standards related to spray booths. You included two photos, posed three scenarios and asked several questions related to each scenario. Your paraphrased scenarios and inquiries follow.

Scenario 1: The photo in Figure 1 shows pictures of a typical small-capacity power-ventilated structure used to capture paint overspray and safely conduct it to the outside. Assume the booth is to be used 1-2 times per week and less than 1 gallon of flammable liquid paint is sprayed in an 8-hour period. Assume that the materials to be spray-painted consist of individual parts that have been removed from construction machinery and repaired. Assume the booth is located inside the room of a building. Assume the paint supply is stored in a separate enclosed room that is adjacent to the booth and which shares a common concrete block wall with the booth and which is inside the same building as the booth. Assume the paint is conveyed to the booth through a fixed pressurized delivery system. Please answer the following questions related to Scenario 1.

Question 1: Does this booth meet the definition of a spray booth as defined by 29 CFR 1910.107(a)?

Response: Yes. Based on the information you provided, the structure in your scenario meets the definition of a spray booth in 29 CFR 1910.107.

Question 2: Are this booth and ductwork required to be protected with automatic sprinklers in accordance with 1910.107(b)(5)(iv)?

Response: Yes. If a structure meets the definition of a spray booth, then it is required to be equipped with approved automatic sprinklers on the upstream and downstream sides of the filters. Please see 1910.107(b)(5)(iv).

Question 3: If the answer to question 2 is "yes," do the regulations allow for a dry chemical fire protection system, in lieu of water sprinklers, that gives an equivalent level of protection?

Response: Yes. A dry chemical extinguishing system or a carbon dioxide system installed so as to meet OSHA requirements may be used in place of an automatic sprinkler system. The requirements for dry chemical extinguishing systems are found in 1910.161 and those for gaseous agent extinguishing systems in 1910.162.

Question 4: What requirements under 29 CFR 1910 must the paint storage room meet?

Response: The storage of flammable materials must meet the provisions of the flammable and combustible liquids standard, 1910.106. Specific standards related to the design and construction of inside storage rooms can be found at 1910.106(d)(4). These requirements address things such as, but not limited to, the maximum size of the room, ventilation, fire protection systems, and electrical wiring and equipment inside the room.

Question 5: Is National Fire Protection Association (NFPA) 33 Standard for Spray Application Using Flammable or Combustible Materials (2000 edition) considered a consensus standard by OSHA that applies to Scenario 1?

Response: The OSHA standards 1910.106 and 1910.107 apply to the scenario. NFPA 33 was revised in 2003, and that edition is the most current. As a matter of general information, we would point out that standards adopted by national standards-setting organizations do not automatically become OSHA standards. According to 29 U.S.C. §655(b), at the current time OSHA may adopt a standard only through notice-and-comment rulemaking. OSHA has adopted neither the NFPA 33-2000 nor the NFPA 33-2003 standards.

Question 6: Does the booth have to satisfy the NFPA 33 requirements for electrical, ventilation, and fire protection to fully comply with State requirements where those NFPA 33 standards are more restrictive than the 1910 standards? If NFPA 33 is not complied with, is this considered a violation by OSHA? If this were a violation, would OSHA issue citations for failure to comply with NFPA 33 (2000 edition)?

Response: If a state or local public safety agency or official, such as a fire marshal, enforces the NFPA 33 requirements for electrical safety, ventilation, and fire protection, your client would have to comply with them if they were equivalent to, or more protective than 1910.107. Furthermore, if your client is in Virginia, the company would be required to follow the occupational safety and health standards of the Virginia Department of Labor and Industry, which has an OSHA-approved state plan. Its standard on spray booths is the same as the federal standard, see 16 VAC 25-90-1910. For further information, you should contact the Virginia Department of Labor and Industry at:

C. Ray Davenport, Commissioner
Virginia Department of Labor and Industry
VOSH Program, Office of Enforcement Policy
13 South Thirteenth Street
Richmond, VA 23219
(804) 786-2384

If your client is in another state with an OSHA-approved state plan, you should contact the state occupational safety and health agency. Information on OSHA-approved state plans can be found in 29 CFR Part 1952.

Neither Federal OSHA nor state agencies with OSHA-approved state plans enforce NFPA 33. Federal OSHA enforces 1910.107 with respect to spray booths, and the state agencies enforce state standards which are the same as, or more effective than, the federal standard.

Question 7: Are applicable 1910 requirements for Scenario 1 retroactive to all spray booths?

Response: The requirements found at 1910.107 are applicable to all spray booths in which spray finishing is conducted using flammable and combustible materials, as definedin 1910.106(a)(18) and 1910.106(a)(19). The standards were first promulgated in 1971 and are applicable to all spray booths, regardless of the date of their manufacture.

Question 8: If OSHA considers that the NFPA 33 (2000 edition) standards apply and that they are enforceable standards for spray booths, are they retroactive to all spray booths?

Response: As stated earlier, OSHA does not enforce consensus standards. Because OSHA has a standard that addresses a particular situation, in this case 1910.107, that standard is what the Agency enforces.

Question 9: Does the paint storage room have to meet the requirements stipulated for "mixing rooms" in NFPA 33 (2000 edition), Section 6.3?

Response: An employer would be required to meet OSHA's requirements for mixing rooms which are found at 1910.107(e)(3).

Scenario 2: Refer to same Figures above. Assume the booth is to be used 3-4 times per week and 1+ gallons of flammable liquid paint are sprayed in an 8-hour period. Assume that the materials to be spray-painted consist of individual parts that have been removed from construction machinery and repaired. Assume the booth is located inside the room of a building. Assume the paint supply is stored in a separate enclosed room that is adjacent to the booth and which shares a common concrete block wall with the booth and which is inside the same building as the booth. Assume the paint is conveyed from the storage room to the booth through a fixed pressurized delivery system.

Question 10: What are the answers to questions 1-9 given Scenario 2?

Response: The answers to questions 1 through 9 are the same as those for Scenario 1. The compliance of spray booths with 1910.107 is not dependent on the frequency of use, nor the quantity of, flammable or combustible liquid used.

Question 11: Given Scenario 1 and Scenario 2, is there a cutoff point for frequency and/or quantity sprayed and/or size of the booth where some of the requirements of 1910.107 would not otherwise apply? If so, what are those cutoff points, and what are the reduced requirements?

Response: As mentioned previously, there are no cutoff points for the amount of flammable or combustible liquid used or for the frequency of use that would eliminate the need for total compliance of spray booths with 1910.107.

Scenario 3: Refer to the same Figures as above and also to Figure 3. Assume the booth is to be used 3-4 times per week and less than 12 ounces of flammable liquid paint is sprayed in an 8-hour period. Assume that the materials to be spray-painted consist of individual parts that have been removed from construction machinery and repaired. Assume the booth is located inside a machine shop and is adjacent to, but separated by distance from, other machines and work processes that share the same room. Assume the paint supply is stored in a flammable storage cabinet that is adjacent to the booth. There is no wall separating the booth from the other machining operations other than the metal sidewall of the booth itself. Assume the painting is done using hand-held 12-ounce cans of flammable paint.

Question 12: What are the answers to questions 1-9 given Scenario 3 and Figures 1, 2, and 3?

Response: The answers to questions 1-8 are the same as those for Scenario 1. Based on the scenario you posed, all requirements of 1910.107 must be met. The use of hand-held portable spraying devices is covered by 1910.107 if they are used repeatedly ("repeatedly" has been interpreted to mean once a week or more) in the same location, in this case your spray booth. Question 9 is not applicable because you specifically stated that the paint is stored in a flammable storage cabinet rather than a room. However, the requirements in 1910.106 for the storage of flammable and combustible liquids would still apply.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

Sincerely,


Richard E. Fairfax, Director
Directorate of Enforcement Programs

Cc: C. Ray Davenport, Commissioner
Richard Soltan, Regional Administrator -- Region III