” SECRETARY OF LABOR,Complainant,v.TUDOR’S BODY SHOP,Respondent.OSHRC Docket No. 88-0462_DECISION_Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:Tudor’s Body Shop (\”Tudor’s\”) performs auto body repairs. As part ofthis work, Tudor’s spray paints vehicles in a spray booth, a smallfireproof structure inside the body shop. A compliance officer of theOccupational Safety and Health Administration performed an inspection ofTudor’s premises. As a result of that inspection, the Secretary ofLabor issued a citation on August 14, 1987, alleging that Tudor’s hadviolated the standard at 29 C.F.R. ? 1910.107(b)(5)(iv) [[1\/]], a safetystandard issued by the Secretary pursuant to the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Secretaryproposed a penalty of $150.00.The citation described the alleged violation by merely restating therequirements of subparagraph (iv) of the standard: \”Space within thespray booths on the upstream and downstream sides of the filters was notprotected with approved automatic sprinklers.\” In her Complaint, theSecretary alleged that \”29 C.F.R. 1910.107(b)(5)(iv) applies torespondent’s operation because automatic sprinklers were not providedinside the spray booth where flammable paints and coatings areapplied.\” In its Answer to the Complaint, Tudor’s denied that thestandard applies but did not set out any reasons for this assertion.A hearing was held before an administrative law judge, who issued adecision vacating the citation because he found that Tudor’s’ employeeswere not exposed to the hazard of explosion and fire. He based thisfinding on evidence in the record that there was no source of ignitionin the spray booth, so there was no chance that there would be anexplosion. The Secretary petitioned the Commission to review thatdecision on the ground that the standard presumes a hazard, so that theevidence relied on by the judge is immaterial. The case is before uspursuant to section 12(j) of the Act, 29 U.S.C. ? 661(j).We agree with the Secretary that the reasons given by the judge forvacating the citation were not consistent with Commissionprecedent.[[2]] We conclude, however, that the result reached by thejudge was correct even though his reasons were not. We therefore affirmhis disposition for the reasons that follow.In order to prove that an employer violated a standard, the Secretarymust show that: (1) the standard applies to the cited condition; (2)the terms of the standard were violated; (3) one or more of theemployer’s employees had access to the cited conditions; and (4) theemployer knew, or with the exercise of reasonable diligence, could haveknown of the violative conditions. _Astra_ _Pharmaceutical Products,Inc._, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ? 25,578, p. 31,899-900 (No.78-6247, 1981).We invited the parties to file supplemental briefs addressing the issueof whether the Secretary had carried her burden of proving theapplicability of the standard to Tudor’s spray booth. Morespecifically, we asked whether the Secretary had proved that this was aconventional dry type spray booth and that overspray dry filters orfilter rolls had been installed. As we read the standard, if theSecretary has failed to prove either of these facts we cannot concludethat the standard applies and therefore cannot find a violation.In the Complaint, the Secretary did not allege that the spray booth inquestion was a conventional dry type spray booth within the meaning ofparagraph (5) or that it had overspray dry filters or filter rollsinstalled, facts which would bring the booth within the coverage ofsubparagraph (iv). At the hearing, the compliance officer did not statewhat kind of booth this was or indicate that overspray dry filters orfilter rolls had been installed. Neither the Secretary’s post-hearingbrief to the administrative law judge nor the judge’s decision mentionedparagraph (5) of the standard, although both quoted subparagraph (iv). The Secretary’s petition for review and brief on review both quotedsubparagraph (iv) without mentioning paragraph (5), even thoughparagraph (5) is the section that describes where and under whatcircumstances subparagraph (iv) applies.The Secretary asserts in her supplemental brief that, at all stages ofthe proceeding, the parties acted on the assumption that Tudor’s BodyShop’s booth was a dry spray booth, even though the Secretary neitheralleged nor presented testimony that it was. Tudor’s was notrepresented by an attorney; it appeared _pro_ _se_ by its president,William Tudor. Mr. Tudor asserted in his Answer to the Complaint thatthe standard does not apply to his operation, and he repeated that claimat the hearing, even though he did not specify why. The Secretarytherefore had ample notice that the applicability of the standard was inissue. We are unwilling to find a violation on the basis of anassumption, as the Secretary urges.The Secretary also argues, in effect, that the record establishes thatthe standard applies because section 1910.107(b) contemplates only twotypes of booths, wet booths and dry booths; and the Secretary assertsthat Tudor’s’ booth does not fit the definition of a wet booth. Therefore, according to the Secretary, it must be a dry booth. We arenot persuaded by this argument. Looking at 29 C.F.R. ? 1910.107(a), wefind the following definitions:(3) _Spray booth_. A power-ventilated structure provided to enclose oraccommodate a spraying operation to confine and limit the escape ofspray, vapor, and residue, and to safely conduct or direct them to anexhaust system.(4) _Waterwash spray booth_. A spray booth equipped with a waterwashing system designed to minimize dusts or residues entering exhaustducts and to permit recovery of overspray finishing material.(5) _Dry spray booth_. A spray booth not equipped with a water washingsystem as described in subparagraph (4) of this paragraph. A dry spraybooth may be equipped with (i) distribution or baffle plates to promotean even flow of air through the booth or cause the deposit of overspraybefore it enters the exhaust duct; or (ii) overspray dry filters tominimize dusts; or (iii) overspray dry filters to minimize dusts orresidues entering exhaust ducts; or (iv) overspray dry filter rollsdesigned to minimize dusts or residues entering exhaust ducts; or (v)where dry powders are being sprayed, with powder collection systems soarranged in the exhaust to capture oversprayed material.The definition of \”spray booth\” indicates that wet and dry booths havecertain common characteristics: they both have power ventilation; theyboth confine the spray, vapor, and residue; and they both exhaust thespray, vapor, and residue. The difference is that a wet booth has awater washing system to wash the overspray residues from the air beingexhausted, while a dry booth does not. While we agree with theSecretary that the record does not show that this is a wet booth, therecord also does not show that it is _not_. The evidence does notafford us a basis for finding that the standard applies to the spraybooth in question, because we cannot ascertain what kind of booth it is.The Secretary points to a statement in the record by Mr. Tudor thatrefers to filters. Describing an exhibit introduced by the Secretary,Mr. Tudor responded to a question from the judge, \”That is the back endthat you don’t see the filters.\” The Secretary claims that thisstatement proves that the standard applies, because the reference mustbe to exhaust filters and only dry booths have them. However, we findlittle in the record to support that argument. Nowhere in the record isthere any support for the proposition that wet booths do not havefilters. Likewise, we find no evidence that the only filters found indry booths are those subject to the standard. It is possible, forexample, that some spray booths may filter incoming replacement air tokeep dust and grit from the finish. Because the Secretary’s assertionsare not supported by the record, we reject them.Moreover, we are unable to find that Tudor’s spray booth had overspraydry filters or filter rolls installed.[[3\/]] Mr. Tudor’s response tothe judge’s question is sufficiently ambiguous that we cannot say withany confidence that it proves that there were filters in the booth atall. It is possible that he was saying that there were filters in thebooth that were not shown in the exhibit he was describing, but we areby no means certain that he meant that. Even if that is what heintended to say, we find no indication in this record as to what kind offilters he may have been referring to. He may have been referring tooverspray filters, but he may also have been referring to some otherkind filters. We simply do not know.Having examined the record, we find that the evidence does not establishthat the spray both in Tudor’s Body Shop had overspray dry filters orfilter rolls installed. We therefore conclude that the Secretary failedto prove that 29 C.F.R. ? 1910.107(b)(5)(iv) applies to the cited spraybooth. Hence, we cannot find that Tudor’s was in violation of thecited standard.This decision does not constitute a finding that the standard does notapply to the spray booth. Perhaps, if the record contained an adequatedescription of the spray booth in Tudor’s Body Shop, we would find thatit does apply; but, on this record, we cannot know whether it does ornot. We therefore do not make any finding as to whether or not section1910.107(b)(5)(iv) applies to Tudor’s spray booth. We merely find that,on this record, the Secretary has failed to prove that element of thealleged violation.The Secretary has suggested in her brief that, if the Commission doesnot find that the record supports a finding that the standard applies, aremand would be appropriate because \”the applicability of the standardwas taken as a given.\” We disagree. The Answer filed by Tudor’sspecifically denied that the standard applies to its spray booth. Atthe hearing, Mr. Tudor pursued this position, although he may not havearticulated it in terms which informed the Secretary of the basis forhis assertion. It has long been established by Commission precedentthat the first element in proving a violation of any standard is proofthat the standard applies to the cited conditions. Given the failure ofthe Secretary to present evidence on this element of her prima faciecase, it would not be proper to require Tudor’s to endure theinconvenience and expense of another evidentiary hearing in order togive the Secretary a second chance to prove a simple violation.We therefore affirm the administrative law judge’s disposition of thiscase, although not for the reasons relied on by the judge. We vacatethe citation because the Secretary has failed to establish theapplicability of 29 C.F.R. ? 1910.107(b)(5)(iv) to the cited spray booth.Edwin G.Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G.WisemanCommissionerDated: March 25, 1991————————————————————————ANN MCLAUGHLIN, SECRETARY OF LABOR,U.S. DEPARTMENT OF LABORComplainantv.TUDORS BODY SHOPRespondentDocket No. 88-0462APPEARANCES:THOMAS A. BROWN, ESQUIREU.S. Department of LaborOffice of the SolicitorMR. WILLIAM TUDOR (Pro Se)Tudor’s Body Shop_DECISION AND ORDER_TENNEY, JUDGE:1. The Occupational Safety and Health Administration conducted aninspection in June 1987 of Tudor’s Body Shop. Several citations forviolations of the Occupational Safety and Health Act were issued. Allhave been settled except one, an alleged violation of 29 C.F.R.1910.107(b)(5)(iv). This is now before the undersigned by virtue of atimely contest on August 28, 1987. The case was heard on May 31, 1988.The attorney for the Secretary of Labor has filed a post-hearing brief.No post-hearing brief has been filed by or on behalf of Tudor’s Body Shop.2. The critical allegation is that on June 8, 1987, the employerviolated the cited standard in that automatic sprinklers were notprovided inside the spray painting booth where flammable paints andcoatings were applied by its employees. There are related allegationsinvolving employee exposure to the alleged hazard and the actual orconstructive knowledge by the employer of the alleged hazard. A penaltyof $150 was proposed. See Paragraph VII of the Secretary’s Complaint.3. The employer admits that no automatic sprinklers were provided, butdenies that they were required. Further, the employer admits thatflammable paints and coatings were used in the booth, but denies thatthe sprinklers would reduce the likelihood of any injury. The employeralso admits that it knew that there were no sprinklers in the booth, butagain denies that the condition violated an OSHA standard. Theappropriateness of the proposed penalty is also denied. The Answer.4. The cited standard reads as follows:1910.107 _Spray finishing using flammable and combustible materials_.(b) _Spray booths_.5. _Dry type overspray collectors (exhaust air filters_)(iv) Space within the spray booth on the downstream and upstream sidesof filters shall be protected with approved automatic sprinklers.5. The employer does auto body and fender work as well as autopainting. The painting is done in a spray booth that is about 10 to 12feet wide and 15 to 20 feet long; it has exhaust ventilation at oneend. It contained a large bay door through which an auto to be paintedwould enter. (Testimony of Mr. Woodburn, Tr. 11, 15-16) Usually, oneauto a day is painted in the spray booth. It takes about four to fivehours for an auto to dry in the booth. (Testimony of Mr. Tudor, Tr. 43)6. In his brief, the Secretary notes that an important element in anyviolation of a standard under section 5(a)(2) of the Occupational Safetyand Health Act of 1970 is the employees being exposed to a hazard as aresult of the cited condition. Here, the inspector testified thatflammable paints and coatings inside the booth were being atomized intothe air, and the only thing lacking was a source of ignition; examplesof sources of ignition were given as metal-to-metal contact of anynature, someone walking into the booth with a lighted cigarette, a sparkfrom an auto ignition, or a crack or other imperfection in the explosion- proof lighting. (Testimony of Mr. Woodburn, Tr. 20) This case turnson whether a source of ignition exists. The credible testimony is thatno source of ignition was present. The employer has only one painterwho does not smoke, and when he goes into the booth it is his habit tolock the door behind him. When an auto is driven in the booth forpainting, its battery is disconnected; after the paint dries the batterycable is put back and the auto is driven out. The lighting is approvedby the insurance underwriter as explosion and fireproof; and allelectric switches and compressors were located outside the booth. (Testimony of Mr. Tudor, Tr. 36-46) There being no source of ignition,the inspector’s opinion as to a hazard, and exposure thereto, is reducedto speculation.7. If the existence of an ignition source were to be found remoterather than non-existent in light of any frailty of human habit inclosing the door to the spray booth, no abatement order would beconsidered appropriate under 29 U.S.C. section 659(c). This is becauseof the remoteness of the possibility itself and the fact that even if asprinkler system were installed, and if a fire or explosion were tooccur, it could not be activated quickly enough to prevent the injury ordeath of the painter. (Testimony of Mr. Tudor, Tr. 42) See _IndustrialMetal Finishing Corp._, 1979 CCH OSHD Par. 23,342 (adm. law judge, 1979)(similar violation found to be de minimis).8. The contested alleged violation of 29 C.F.R. section1910.107(b)(5)(iv) is hereby dismissed.SO ORDERED.PAUL A. TENNEYJudge, OSHRCDATED: August 23, 1986Washington, D.C.FOOTNOTES:[[1\/]] That standard provides:?1910.107 *Spray finishing using flammable and combustible materials.*(b) _Spray booths_-(5) _Dry type overspray collectors–(exhaust air filters_). Inconventional dry type spray booths, overspray dry filters or filterrolls, if installed, shall conform to the following:(iv) Space within the spray booths on the downstream and upstream sidesof filters shall be protected with approved automatic sprinklers.[[2]] _See American Steel Works_, 9 BNA OSHC 1549, 1551 n.4, 1981 CCHOSHD ? 25,285, p. 31,270 n.4 (77-553, 1981).[[3\/]] According to the definition, a dry spray booth may have baffleplates, overspray filters, or filter rolls. It is unclear from thisdefinition whether a dry spray booth _must_ have one of these devices orwhether the definition merely describes permissible options. Section1910.107(b)(5) does not enlighten us on this point, either, because itsays that, _if overspray dry filters or filter rolls are_ _installed_,they must meet the requirements set out in subsections (i)-(iv), whichalso leaves unanswered the question of whether such equipment isrequired, so that failure to have it would constitute a violation. Wetherefore cannot draw any conclusions as to whether or not this spraybooth had filters from the fact that it was not cited for failure tohave them, since that may not be a violation.”