“Docket No. 85-1060 SECRETARY OF LABOR,Complainant,v.KASPAR WIRE WORKS, INC.,Respondent.Docket No. 85-1060ORDER OF REMANDThe administrative law judge affirmed two citation items issued by the Secretary of Laborto Kasper Wire Works, Inc. We remand this case to the judge for further consideration.Item 1 of citation 1 alleged a violation of 29 C.F.R. {sec} 1910.217(c)(1)(i), whichrequires point-of- operation guards or devices on mechanical power presses. Two of theprincipal questions litigated by the parties were whether compliance with the standard wasinfeasible and whether compliance would create a greater hazard than the hazard ofnoncompliance. These questions were pleaded in Kaspar’s answer to the complaint. Testimonyon them was adduced at the hearing and the parties discussed them in their post-hearingbriefs. The judge’s decision, however, contains neither findings of fact nor discussionsof the issues. Kaspar’s petition for discretionary review argues that this omission waserror, and that the decision was erroneous in other respects. We do not reach these otherarguments. We remand for the judge to reconsider this item in light of the evidence andarguments on the infeasibility and greater hazard issues and to prepare a new decisionwith findings of facts, conclusions of law, and a statement of reasons for any dispositionhe may make of the two issues. See generally Stripe-A Zone, Inc., 85 OSAHRC 3\/B7, 12 BNAOSHC 1192, 1984-85 CCH OSHD (p) 27,184 (No. 79-2380, 1985); Syntron, Inc., 82 OSAHRC39\/E9, 10 BNA OSHC 1848, 1982 CCH OSHD (p) 26,145 (No. 81-1491, 1982). The judge may alsoreconsider his decision in light of any other arguments the parties may raise.We also remand for the judge to reconsider his disposition of item 2 of citation 2. Thatitem alleged a violation of the duty imposed by section 1910.217 to report within 30 dayspoint-of-operation injuries caused by mechanical power presses. The judge rejectedKaspar’s defense that the issuance of the citation item more than two years after theexpiration of the thirty-day reporting period violated the six-month limitation period insection 9(c) of the Act, 29 U.S.C. {sec} 658(c). Kaspar maintains that its reflected theunreported injuries and had been inspected by OSHA during the two-year period. In SunShip, Inc., 85 OSAHRC 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 statuteof limitations does not begin to run until OSHA discovers or reasonably should havediscovered a violation.\” The judge should therefore reconsider his decision in lightof Sun Ship. He should determine specifically whether OSHA was or reasonably could havebecome aware of the alleged reporting violation during earlier inspections of Kaspar, andwhether the statute of limitations had therefore already run.Accordingly, the judge’s decision is vacated. The case is remanded for further proceedingsconsistent with this opinion.FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARYDATED: April 14, 1987SECRETARY 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 of Labor, Dallas,Texas, for the Complainant.Vic Houston Henry, Esquire, of Dallas, for the Respondent.DECISION AND ORDERLouis G. LaVecchia, JudgeThis proceeding arises under Section 10 of the Occupational Safety and Health Act of 1970(29 U.S.C. sec. 651 et seq.), also referred to as the \”Act.\”BackgroundThe respondent seeks review of two citations issued by the Occupational Safety and HealthAdministration (\”OSHA\”) after an inspection of its plant conducted between June18 and 20, 1985. A total civil penalty of $720 was proposed for the alleged violation ofcertain safety and health standard promulgated under the Act.A hearing was held in San Antanio, Texas on April 24, 1986. Briefs and\/or replies havebeen submitted by the parties.It was stipulated that the respondent is an employer engaged in a business which affectscommerce; that the Review Commission has jurisdiction of this proceeding; and that therespondent has no history of previous violations of the Act.Motion to SuppressThe respondent has moved to suppress the evidence respecting Items 1 and 2 of Citation No.1, as well as Items 2, 3, and 4 of Citations No. 2, on the grounds that it had consentedonly to a hygiene inspection and not to an inspection for violations of any safetystandards. OSHA’s supervisory industrial hygienist, Raymond Skinner, had stated that theinspection would be for industrial hygiene purposes, when he conferred with David Little,the respondent’s representative before the compliance officer entered the plant. (Tr.268-9). He stated, however, that no limitations were discussed. The compliance officer, inaccordance with normal operating procedures, would be expected not to focus on safetyitems, but to address any safety hazards which are open and obvious during a hygieneinspection. (Tr. 269).The compliance officer, Robert Hudgens, testified that the respondent’s representativesplaced no limitations on his inspection, and did not object to the items inspected or theareas of the plant involved. (Tr. 9, 182, 247-248).On brief, the complainant asserts that in administrative investigations there is a naturalpresumption of consent in the absence of protest by representatives, of the respondent atthe time of the inspection, citing, among other cases, Lake Butler Apparel Co., v.Secretary of Labor,519 F.2d 84 (5th Cir. 1975). The Secretary further argues that eventhough there might nave been a valid limitation of consent, the evidence should not besuppressed because the compliance officer believed in good faith that he could conduct aninspection of safety as well as items concerned only with industrial hygiene. See UnitedStates v. Leon, 468 U.S. 897 (1984).In a recent decision the Fifth Circuit Court of Appeals affirmed the Review Commission’sapplication of the good faith exception to the exclusionary rule. Smith Steel Casting Co.v. Secretary of Labor, F.2d (No. 75-4346) (September 19, 1986), (OSHRC Docket No.80-2069). The evidence showing that the compliance officer acted pursuant to a reasonablegood faith belief that the respondent had consented to an inspection without limitation,and the alleged safety violations having been observed while open and obvious, the motionto suppress must be denied.Item 1 of Citation No. 1This item alleges a violation of the safety standard at 29 CFR 1910.217(c)(1)(i) in thatpoint of operation guards or devices were not being used on a 60-ton mechanical pressobserved by the compliance officer during his inspection. (Tr. 12, 152) (Exs. C-1a and1b). Although the press is equipped with a point of operation guard (two hand trips orstarter buttons) it was not being used when observed by the compliance officer. Instead,the employee (Gerald Goldsmith) was actuating the press by the use of the foot pedal. (Tr.14, 18). He was engaged 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’shands came within 9 inches of the opening during the operations. (Tr. 17, 20-23). Thepress is used infrequently, and on most occasions the two-hand trips are used.The respondent argues, on brief, that no hazard was demonstrated in the use of the presswith the two-hand trips disengaged, but it is obvious that, considering the ingenious waysemployees find of accidentally placing their fingers, hands or other parts of their bodiesinto the point of operation of punch presses, there is a hazard present when the footpedal 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 an indication that thepotential hazard presented to the operator has been recognized. Although no accident mayyet have occurred when the press was used without recourse to the two-hand trips thatcircumstance is no guarantee 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 only conclude that therespondent violated the safety standard as alleged. However, it is my opinion thatconsideration of the applicable criteria warrants reduction of the proposed penalty from$320 to $160.Item 2 of Citation No. IThis item alleges a violation of the safety standard at 29 CFR 1910.252(c)(2)(iv)in thatthe point of operation on resistance press welding machine(s) were not guarded. Anemployee was observed welding d french-fry basket without a guard to prevent a possibleinjury to his finger or- fingers. (Tr. 34,37). The press ram was one inch deep, two incheswide, with a gap of 1\/4 inch or less when being used. (Tr. 147-148). The respondent arguesthat it would be impossible for an employee to insert his finger into the gap, given theminimum space involved when the welding is in process. Giving credence to the argument,there would be no hazard it, the operation, barring intentional injury, A variety ofproduct, require use of the welding press, with millions of welds made during a normalyear. No injuries have been reported with respect to this press operation. (Tr. 145, 229).It is reasonably clear that the operating employee would have to come very close to anintentional placing of his finger or part of his hand into the aperture between the ramand the die in order to sustain an injury. I conclude that no hazard within the meaning ofthe Act has been shown by the complainant.This item will be vacated.Item 1 of Citation No. 2Under sub-parts (a), (b), and (c) this item alleges violations of the respiratoryprotection program required to be established under 29 CFR 1910.134(a)(2): (a) thatrespirators were not selected on the basis of hazards to which the worker was exposed; (b)that users of respirators were not instructed and trained in the proper use of suchequipment and their 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 of the wiredepartment; and the sheet metal cleaning department. (Tr. 45). In the wire department theemployee stated that he was using a respirator for protection against acid fumes orvapors. In the sheet metal department the employee stated that he was using a respiratorfor protection against dust emanating from the use of a dry-powder cleaning material in avibrating vat. (Tr. 46).The compliance officer did not check the contents of the containers in the acid-cleaningdepartment, nor did he obtain a material safety data sheet applicable to the acid beingused. (Tr. 55,104). He detected no acid gas in the room. (Tr. 54). He did not measure theconcentration of the acid, nor could he recall whether acid gas inhibitors were installedon any of the tanks. (Tr. 101, 104, 199-200). The only potential hazard seen by thecompliance officer was acid fumes in the event of spill when acid was added to a cleaningtank. (Tr. 55,104). Two employees were used when acid was added to the tanks, and no suchinjuries had ever been experienced by the respondent. (Tr. 198,201-202, 233-234). Nosamples or readings of air in the acid-cleaning room were taken by the compliance officer.In these circumstances I am constrained to find that no hazard has been proved by thecomplainant with respect to the acid-cleaning operation.A similar situation prevails with respect to the sheet-metal cleaning department. Nomeasurement of the concentration of any substance used in that operation was made; theroom was not measured; air samples were not taken; length of exposure of employees was notdetermined. (Tr. 47, 101-109). The material safety data sheet (Ex. C-4) considered thecleaner non-hazardous, with zero percent volatility. No recognized effects of overexposurewere known and local exhaust was said to be suitable ventilation. No evidence of anyinjury to an employee was introduced.Accordingly, I conclude that no hazard has been shown by the complainant in thisoperation. The allegation with respect to the failure to instruct employees in the proper use ofrespirators was denied by the respondent, and evidence of its written respirator programwas received. (Tr. 241). (Exs. R-6, 6A, and 6B). The compliance officer admitted that hehad not asked the respondent’s employees whether they had been trained or instructed inthe use of respirators. (Tr. 105). This allegation cannot be sustained. Nor can theallegation respecting the failure to inspect respirators, since the complainant did notestablish the length of time since the last cleaning and inspection of respirators.Item1 of Citation No. 2 will be vacated. Item 2 of Citation No. 2This items alleges that the respondent failed to comply with the injury-reportingrequirements of the standard at 29 CFR 1910.217(g), in that a 12\/31\/84 power press injurywas not reported; nor was a 12\/01\/83 power press injury reported. The respondent arguesthat prior inspections by OSHA personnel had not resulted in citations for not reportingthese injuries. It is also argued that citation is barred by Section 658(c) of the Actwhich states that no citation may be issued after the expiration of six months followingthe occurrence of any violationThe failure to cite or the part of OSHA personnel during prior inspections is not bindingon OSHA during future inspections. Nor is citation barred under Section 658(c) of the Act.Section 658(a) of the Act provides: If, upon inspection or investigation, the Secretary orhis authorized representative believes that an employer has violated a requirement ofsection 5 of this Act, of any standard, rule or order prescribed pursuant to section 6 ofthis Act, or of any regulations prescribed pursuant to this Act, he shall with reasonablepromptness issue a citation to the employer.(c) No citation may be issued under this section after the expiration of six monthsfollowing the occurrence of any violation.A reasonable interpretation of the latter subpart of the section can only lead to theconclusion that subpart (c) is meant to be construed as referring to the time when theviolation was discovered by the Secretary’s inspectors, and not to the date of the allegedviolation. Any other- interpretation would be contradictory of the main purpose of thesection, and leave it without substantial meaning.\u00a0 Furthermore, there has been noshowing of prejudice on the part of the respondent because of the delay in being cited forthe 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. 2This item alleges a violation of the standard at 29 CFR 1910.252 (e)(2)(i)(c) in thatoperators of resistance welding or brazing equipment were not using transparent faceshields or goggles to protect their faces or eyes. Specifically, the charge relates towire welding operations on french-fry baskets (flying sparks or pieces of metal wires).The evidence failed to disclose any injuries from flying sparks or wire fragments whileemployees operated the basket spot welders. (Tr. 110,149-150). Each of the machines makesover 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 the operator’s faceand eyes by fans positioned near the spot welders. (Tr. 150, 235-236)No hazard having been demonstrated by the complainant, this item must be vacated.Item 4 of Citation No. 2This item alleges a violation of 29 CFR 1910.303(f) in that the disconnecting means for aforklift battery charger was not located and arranged so that its purpose was evident, norlegibly marked to indicate its purpose. Company representatives were not able to find thedisconnect switch for about two hours. (Tr. 61-63, 112). The charger was not beingoperated on the day of the inspection. (Tr. 111). The label on the front of the chargershows where the machine could be disconnected. (Ex. R-4). ‘The plant manager testifiedthat he was certain that the operators of the charger would have knowledge of thecharger’s disconnect switch because of their instructions(Tr. 238). He stated further thatthe switch has an automatic cut-off feature in the event of a malfunction. (Tr. 238).The state of the evidence relevant to this item dictates that this item be vacated.Item 5 of Citation No. 2This item charges respondent with a violation of the health standard at 29 CFR1910.1025(d)(2) in that an initial determination allegedly was not made to determine ifany employee May have been exposed to lead at or above the action level. The complianceofficer was not permitted by the respondent to monitor the lead level in the sheet metaldepartment where 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 wereusing respirators, but the compliance officer did not check them to see if they were leadapproved because he did not want to interrupt the production process. There wasventilation provided in the spray booth in the form of a fan or fans. The complianceofficer did not consider the fan or fans capable of providing adequate ventilation, butthe company insists that the system is adequate. Although the respondent was unable at thetime of the inspection to produce a monitoring record, it did provide one at the hearing.The date of 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–test results showing theextent to which the employees might have been exposed to impermissible lead levels. Eventhough the respondent would not permit the monitoring, by the compliance officer, legalmeans existed fur obtaining access to the information desired.This item must be vacated.Item 6 of Citation No. 2This item alleges that employees working in an area where there was a potential exposureto airborne lead at any level were not informed of the content of Appendices A and B ofthe regulation at 29 CFR 1910.1025(1)(1)(i).The compliance officer ascertained that the employees working in the spray boothheretofore mentioned had not been given copies of the appendices, but he was not able tostate that the employees had not been informed of the content of the appendices. (Tr.266). He was under the impression that the standard called for actual delivery of copiesof the appendices to employees. (Tr. 121-122). The respondent had provided material safetydata sheets for lead-containing paints to the employees working with such paints. (Tr.214,215,241). It appears to have considered the providing of the sheets, along withinstructions from supervisors and the placing of copies of the sheets on bulletin boardsas tantamount to compliance with this provision of the standard. This may not have beenthe best means for informing the employees of the content of the appendices, but the stateof the evidence will, on the other hand, not sustain a finding of violation.This item will be vacated.Conclusions of Law1. The Review Commission has jurisdiction of this proceeding. 2. The respondent is engaged in a business affecting commerce and is covered by theprovisions of the Act.3. The respondent violated the standard set forth in Item Iof Citation No. 1. The violation was serious and warrants the imposition of a civilpenalty of $160.4. The respondent violated the standard set forth in Item 2 of Citation No. 2. This was another-than-serious violation and no civil penalty is assessed.5. The respondent did not violate the standards set forth in the remaining items includedin the citations.Order Upon the basis of the foregoing findings, express or implied, the conclusions 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. LaVechhia Judge, OSHRC’Dated: December 10, 1986 DALLAS”