“SECRETARY OF LABOR,Complainant,v.KASPAR WIRE WORKS, INC.,Respondent.Docket No. 85-1060_ORDER OF REMAND_The administrative law judge affirmed two citation items issued by theSecretary of Labor to Kasper Wire Works, Inc. We remand this case to thejudge for further consideration.Item 1 of citation 1 alleged a violation of 29 C.F.R. {sec}1910.217(c)(1)(i), which requires point-of- operation guards or deviceson mechanical power presses. Two of the principal questions litigated bythe parties were whether compliance with the standard was infeasible andwhether compliance would create a greater hazard than the hazard ofnoncompliance. These questions were pleaded in Kaspar’s answer to thecomplaint. Testimony on them was adduced at the hearing and the partiesdiscussed them in their post-hearing briefs. The judge’s decision,however, contains neither findings of fact nor discussions of theissues. Kaspar’s petition for discretionary review argues that thisomission was error, and that the decision was erroneous in otherrespects. We do not reach these other arguments. We remand for the judgeto reconsider this item in light of the evidence and arguments on theinfeasibility and greater hazard issues and to prepare a new decisionwith findings of facts, conclusions of law, and a statement of reasonsfor any disposition he may make of the two issues. See generallyStripe-A Zone, Inc., 85 OSAHRC 3\/B7, 12 BNA OSHC 1192, 1984-85 CCH OSHD(p) 27,184 (No. 79-2380, 1985); Syntron, Inc., 82 OSAHRC 39\/E9, 10 BNAOSHC 1848, 1982 CCH OSHD (p) 26,145 (No. 81-1491, 1982). The judge mayalso reconsider his decision in light of any other arguments the partiesmay raise.We also remand for the judge to reconsider his disposition of item 2 ofcitation 2. That item alleged a violation of the duty imposed by section1910.217 to report within 30 days point-of-operation injuries caused bymechanical power presses. The judge rejected Kaspar’s defense that theissuance of the citation item more than two years after the expirationof the thirty-day reporting period violated the six-month limitationperiod in section 9(c) of the Act, 29 U.S.C. {sec} 658(c). Kasparmaintains that its reflected the unreported injuries and had beeninspected by OSHA during the two-year period. In Sun Ship, Inc., 85OSAHRC 2\/C13, 12 BNA OSHC 1185, 1186, 1984-85 CCH OSHD (p) 27,175, p.35,078 (No. 80-3192, 1985), we stated, citing Commission precedent, that\”the statute of limitations does not begin to run until OSHA discoversor reasonably should have discovered a violation.\” The judge shouldtherefore reconsider his decision in light of Sun Ship. He shoulddetermine specifically whether OSHA was or reasonably could have becomeaware of the alleged reporting violation during earlier inspections ofKaspar, and whether the statute of limitations had therefore already run.Accordingly, the judge’s decision is vacated. The case is remanded forfurther proceedings consistent with this opinion.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: April 14, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.KASPAR WIRE WORKS, INC.,Respondent.OSHRC Docket No. 85-1060APPEARANCES:Allen Reid Tilson, Esquire, Office of the Solicitor, U.S. Department ofLabor, Dallas, Texas, for the Complainant.Vic Houston Henry, Esquire, of Dallas, for the Respondent._DECISION AND ORDER_Louis G. LaVecchia, JudgeThis proceeding arises under Section 10 of the Occupational Safety andHealth Act of 1970 (29 U.S.C. sec. 651 et seq.), also referred to as the\”Act.\”_Background_The respondent seeks review of two citations issued by the OccupationalSafety and Health Administration (\”OSHA\”) after an inspection of itsplant conducted between June 18 and 20, 1985. A total civil penalty of$720 was proposed for the alleged violation of certain safety and healthstandard promulgated under the Act.A hearing was held in San Antanio, Texas on April 24, 1986. Briefsand\/or replies have been submitted by the parties.It was stipulated that the respondent is an employer engaged in abusiness which affects commerce; that the Review Commission hasjurisdiction of this proceeding; and that the respondent has no historyof previous violations of the Act._Motion to Suppress_The respondent has moved to suppress the evidence respecting Items 1 and2 of Citation No. 1, as well as Items 2, 3, and 4 of Citations No. 2, onthe grounds that it had consented only to a hygiene inspection and notto an inspection for violations of any safety standards. OSHA’ssupervisory industrial hygienist, Raymond Skinner, had stated that theinspection would be for industrial hygiene purposes, when he conferredwith David Little, the respondent’s representative before the complianceofficer entered the plant. (Tr. 268-9). He stated, however, that nolimitations were discussed. The compliance officer, in accordance withnormal operating procedures, would be expected not to focus on safetyitems, but to address any safety hazards which are open and obviousduring a hygiene inspection. (Tr. 269).The compliance officer, Robert Hudgens, testified that the respondent’srepresentatives placed no limitations on his inspection, and did notobject to the items inspected or the areas of the plant involved. (Tr.9, 182, 247-248).On brief, the complainant asserts that in administrative investigationsthere is a natural presumption of consent in the absence of protest byrepresentatives, of the respondent at the time of the inspection,citing, among other cases, Lake Butler Apparel Co., v. Secretary ofLabor,519 F.2d 84 (5th Cir. 1975). The Secretary further argues thateven though there might nave been a valid limitation of consent, theevidence should not be suppressed because the compliance officerbelieved in good faith that he could conduct an inspection of safety aswell as items concerned only with industrial hygiene. See United Statesv. Leon, 468 U.S. 897 (1984).In a recent decision the Fifth Circuit Court of Appeals affirmed theReview Commission’s application of the good faith exception to theexclusionary rule. Smith Steel Casting Co. v. Secretary of Labor, F.2d(No. 75-4346) (September 19, 1986), (OSHRC Docket No. 80-2069). Theevidence showing that the compliance officer acted pursuant to areasonable good faith belief that the respondent had consented to aninspection without limitation, and the alleged safety violations havingbeen observed while open and obvious, the motion to suppress must be denied._Item 1 of Citation No. 1_This item alleges a violation of the safety standard at 29 CFR1910.217(c)(1)(i) in that point of operation guards or devices were notbeing used on a 60-ton mechanical press observed by the complianceofficer during his inspection. (Tr. 12, 152) (Exs. C-1a and 1b).Although the press is equipped with a point of operation guard (two handtrips or starter buttons) it was not being used when observed by thecompliance officer. Instead, the employee (Gerald Goldsmith) wasactuating the press by the use of the foot pedal. (Tr. 14, 18). He wasengaged in punching holes in the end of some square metal tubing. (Tr.12, 152). The opening between the ram and die measured about 4 inches,and the employee’s hands came within 9 inches of the opening during theoperations. (Tr. 17, 20-23). The press is used infrequently, and on mostoccasions the two-hand trips are used.The respondent argues, on brief, that no hazard was demonstrated in theuse of the press with the two-hand trips disengaged, but it is obviousthat, considering the ingenious ways employees find of accidentallyplacing their fingers, hands or other parts of their bodies into thepoint of operation of punch presses, there is a hazard present when thefoot pedal is used instead of the two-had trips for actuating the press.The presence of the two hand trips on the press is in itself anindication that the potential hazard presented to the operator has beenrecognized. Although no accident may yet have occurred when the presswas used without recourse to the two-hand trips that circumstance is noguarantee that in accident can never happen. That any such accidentwould be serious in nature is also evident.In view of the findings expressed in the foregoing discussion I can onlyconclude that the respondent violated the safety standard as alleged.However, it is my opinion that consideration of the applicable criteriawarrants reduction of the proposed penalty from $320 to $160._Item 2 of Citation No. I_This item alleges a violation of the safety standard at 29 CFR1910.252(c)(2)(iv)in that the point of operation on resistance presswelding machine(s) were not guarded. An employee was observed welding dfrench-fry basket without a guard to prevent a possible injury to hisfinger or- fingers. (Tr. 34,37). The press ram was one inch deep, twoinches wide, with a gap of 1\/4 inch or less when being used. (Tr.147-148). The respondent argues that it would be impossible for anemployee to insert his finger into the gap, given the minimum spaceinvolved when the welding is in process. Giving credence to theargument, there would be no hazard it, the operation, barringintentional injury, A variety of product, require use of the weldingpress, with millions of welds made during a normal year. No injurieshave been reported with respect to this press operation. (Tr. 145, 229).It is reasonably clear that the operating employee would have to comevery close to an intentional placing of his finger or part of his handinto the aperture between the ram and the die in order to sustain aninjury. I conclude that no hazard within the meaning of the Act has beenshown by the complainant.This item will be vacated._Item 1 of Citation No. 2_Under sub-parts (a), (b), and (c) this item alleges violations of therespiratory protection program required to be established under 29 CFR1910.134(a)(2): (a) that respirators were not selected on the basis ofhazards to which the worker was exposed; (b) that users of respiratorswere not instructed and trained in the proper use of such equipment andtheir limitations; and (c) that respirators used routinely were notinspected during cleaning, and worn or deteriorated parts replaced.Two locations are involved in the allegations: the acid cleaning area ofthe wire department; and the sheet metal cleaning department. (Tr. 45).In the wire department the employee stated that he was using arespirator for protection against acid fumes or vapors. In the sheetmetal department the employee stated that he was using a respirator forprotection against dust emanating from the use of a dry-powder cleaningmaterial in a vibrating vat. (Tr. 46).The compliance officer did not check the contents of the containers inthe acid-cleaning department, nor did he obtain a material safety datasheet applicable to the acid being used. (Tr. 55,104). He detected noacid gas in the room. (Tr. 54). He did not measure the concentration ofthe acid, nor could he recall whether acid gas inhibitors were installedon any of the tanks. (Tr. 101, 104, 199-200). The only potential hazardseen by the compliance officer was acid fumes in the event of spill whenacid was added to a cleaning tank. (Tr. 55,104). Two employees were usedwhen acid was added to the tanks, and no such injuries had ever beenexperienced by the respondent. (Tr. 198,201-202, 233-234). No samples orreadings of air in the acid-cleaning room were taken by the complianceofficer. In these circumstances I am constrained to find that no hazardhas been proved by the complainant with respect to the acid-cleaningoperation.A similar situation prevails with respect to the sheet-metal cleaningdepartment. No measurement of the concentration of any substance used inthat operation was made; the room was not measured; air samples were nottaken; length of exposure of employees was not determined. (Tr. 47,101-109). The material safety data sheet (Ex. C-4) considered thecleaner non-hazardous, with zero percent volatility. No recognizedeffects of overexposure were known and local exhaust was said to besuitable ventilation. No evidence of any injury to an employee wasintroduced.Accordingly, I conclude that no hazard has been shown by the complainantin this operation.The allegation with respect to the failure to instruct employees in theproper use of respirators was denied by the respondent, and evidence ofits written respirator program was received. (Tr. 241). (Exs. R-6, 6A,and 6B). The compliance officer admitted that he had not asked therespondent’s employees whether they had been trained or instructed inthe use of respirators. (Tr. 105). This allegation cannot be sustained.Nor can the allegation respecting the failure to inspect respirators,since the complainant did not establish the length of time since thelast cleaning and inspection of respirators.Item1 of Citation No. 2 will be vacated._Item 2 of Citation No. 2_This items alleges that the respondent failed to comply with theinjury-reporting requirements of the standard at 29 CFR 1910.217(g), inthat a 12\/31\/84 power press injury was not reported; nor was a 12\/01\/83power press injury reported. The respondent argues that priorinspections by OSHA personnel had not resulted in citations for notreporting these injuries. It is also argued that citation is barred bySection 658(c) of the Act which states that no citation may be issuedafter the expiration of six months following the occurrence of any violationThe failure to cite or the part of OSHA personnel during priorinspections is not binding on OSHA during future inspections. Nor iscitation barred under Section 658(c) of the Act.Section 658(a) of the Act provides: If, upon inspection orinvestigation, the Secretary or his authorized representative believesthat an employer has violated a requirement of section 5 of this Act, ofany standard, rule or order prescribed pursuant to section 6 of thisAct, or of any regulations prescribed pursuant to this Act, he shallwith reasonable promptness issue a citation to the employer.(c) No citation may be issued under this section after the expiration ofsix months following the occurrence of any violation.A reasonable interpretation of the latter subpart of the section canonly lead to the conclusion that subpart (c) is meant to be construed asreferring to the time when the violation was discovered by theSecretary’s inspectors, and not to the date of the alleged violation.Any other- interpretation would be contradictory of the main purpose ofthe section, and leave it without substantial meaning. Furthermore,there has been no showing of prejudice on the part of the respondentbecause of the delay in being cited for the violations. 0 .Stripe-A-Zone, (No. 79-2380). CCH OSHD para. 26,069 (1982),Item 2 of Citation No. 2 must be affirmed. Zero penalty._Item 3 of Citation No. 2_This item alleges a violation of the standard at 29 CFR 1910.252(e)(2)(i)(c) in that operators of resistance welding or brazingequipment were not using transparent face shields or goggles to protecttheir faces or eyes. Specifically, the charge relates to wire weldingoperations on french-fry baskets (flying sparks or pieces of metal wires).The evidence failed to disclose any injuries from flying sparks or wirefragments while employees operated the basket spot welders. (Tr.110,149-150). Each of the machines makes over 15 million welds a year.(Tr.227-229) A guard protects against flying pieces of wire. (Tr. 148,149, 230). Flying sparks are diverted downward and away from theoperator’s face and eyes by fans positioned near the spot welders. (Tr.150, 235-236)No hazard having been demonstrated by the complainant, this item must bevacated._Item 4 of Citation No. 2_This item alleges a violation of 29 CFR 1910.303(f) in that thedisconnecting means for a forklift battery charger was not located andarranged so that its purpose was evident, nor legibly marked to indicateits purpose. Company representatives were not able to find thedisconnect switch for about two hours. (Tr. 61-63, 112). The charger wasnot being operated on the day of the inspection. (Tr. 111). The label onthe front of the charger shows where the machine could be disconnected.(Ex. R-4). ‘The plant manager testified that he was certain that theoperators of the charger would have knowledge of the charger’sdisconnect switch because of their instructions(Tr. 238). He statedfurther that the switch has an automatic cut-off feature in the event ofa malfunction. (Tr. 238).The state of the evidence relevant to this item dictates that this itembe vacated._Item 5 of Citation No. 2_This item charges respondent with a violation of the health standard at29 CFR 1910.1025(d)(2) in that an initial determination allegedly wasnot made to determine if any employee May have been exposed to lead ator above the action level. The compliance officer was not permitted bythe respondent to monitor the lead level in the sheet metal departmentwhere three employees were observed in the spray painting shop. (Tr.79,82-83). The paint being used contained 10 percent lead. (Tr. 68)(Ex.C-3). The employees were using respirators, but the compliance officerdid not check them to see if they were lead approved because he did notwant to interrupt the production process. There was ventilation providedin the spray booth in the form of a fan or fans. The compliance officerdid not consider the fan or fans capable of providing adequateventilation, but the company insists that the system is adequate.Although the respondent was unable at the time of the inspection toproduce a monitoring record, it did provide one at the hearing. The dateof the monitoring by the respondent was not shown on the exhibit. (Tr.116-117, 208, 213-218).There is an essential element missing in the complainant’s case–testresults showing the extent to which the employees might have beenexposed to impermissible lead levels. Even though the respondent wouldnot permit the monitoring, by the compliance officer, legal meansexisted fur obtaining access to the information desired.This item must be vacated._Item 6 of Citation No. 2_This item alleges that employees working in an area where there was apotential exposure to airborne lead at any level were not informed ofthe content of Appendices A and B of the regulation at 29 CFR1910.1025(1)(1)(i).The compliance officer ascertained that the employees working in thespray booth heretofore mentioned had not been given copies of theappendices, but he was not able to state that the employees had not beeninformed of the content of the appendices. (Tr. 266). He was under theimpression that the standard called for actual delivery of copies of theappendices to employees. (Tr. 121-122). The respondent had providedmaterial safety data sheets for lead-containing paints to the employeesworking with such paints. (Tr. 214,215,241). It appears to haveconsidered the providing of the sheets, along with instructions fromsupervisors and the placing of copies of the sheets on bulletin boardsas tantamount to compliance with this provision of the standard. Thismay not have been the best means for informing the employees of thecontent of the appendices, but the state of the evidence will, on theother hand, not sustain a finding of violation.This item will be vacated._Conclusions of Law_1. The Review Commission has jurisdiction of this proceeding.2. The respondent is engaged in a business affecting commerce and iscovered by the provisions of the Act.3. The respondent violated the standard set forth in Item Iof Citation No. 1. The violation was serious and warrants the impositionof a civil penalty of $160.4. The respondent violated the standard set forth in Item 2 of CitationNo. 2. This was an other-than-serious violation and no civil penalty isassessed.5. The respondent did not violate the standards set forth in theremaining items included in the citations._Order _Upon the basis of the foregoing findings, express or implied, theconclusions of law, and the entire record, it is ordered that:1. Item I of Citation No. I is affirmed, with a civil penalty of $160.2. Item 2 of Citation No. 2 is affirmed, with no penalty.3. The remaining items in the citations are vacated.So ORDERED.Louis G. LaVechhiaJudge, OSHRC’Dated: December 10, 1986DALLAS”