“Docket No. 88-0462 \u00a0SECRETARY OF LABOR, Complainant, v. TUDOR’S BODY SHOP, Respondent.OSHRC Docket No. 88-0462DECISIONBefore: FOULKE, Chairman; MONTOYA and WISEMAN,Commissioners.BY THE COMMISSION:Tudor’s Body Shop (\”Tudor’s\”) performsauto body repairs.\u00a0 As part of this work, Tudor’s spray paints vehicles in a spraybooth, a small fireproof structure inside the body shop.\u00a0 A compliance officer of theOccupational Safety and Health Administration performed an inspection of Tudor’s premises.\u00a0 As a result of that inspection, the Secretary of Labor issued a citation on August14, 1987, alleging that Tudor’s had violated the standard at 29 C.F.R. ?1910.107(b)(5)(iv) [[1\/]], a safety standard issued by the Secretary pursuant to theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Secretary proposed a penalty of $150.00.The citation described the alleged violation bymerely restating the requirements of subparagraph (iv) of the standard:\u00a0 \”Spacewithin the spray booths on the upstream and downstream sides of the filters was notprotected with approved automatic sprinklers.\” In her Complaint, the Secretaryalleged that \”29 C.F.R. 1910.107(b)(5)(iv) applies to respondent’s operation becauseautomatic sprinklers were not provided inside the spray booth where flammable paints andcoatings are applied.\”\u00a0 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 a decision vacating thecitation because he found that Tudor’s’ employees were not exposed to the hazard ofexplosion and fire.\u00a0 He based this finding on evidence in the record that there wasno source of ignition in the spray booth, so there was no chance that there would be anexplosion.\u00a0 The Secretary petitioned the Commission to review that decision on theground that the standard presumes a hazard, so that the evidence relied on by the judge isimmaterial.\u00a0 The case is before us pursuant to section 12(j) of the Act, 29 U.S.C. ?661(j).We agree with the Secretary that the reasonsgiven by the judge for vacating the citation were not consistent with Commissionprecedent.[[2]]\u00a0 We conclude, however, that the result reached by the judge wascorrect even though his reasons were not.\u00a0 We therefore affirm his disposition forthe reasons that follow.In order to prove that an employer violated astandard, the Secretary must show that:\u00a0 (1) the standard applies to the citedcondition; (2) the terms of the standard were violated; (3) one or more of the employer’semployees had access to the cited conditions; and (4) the employer knew, or with theexercise of reasonable diligence, could have known of the violative conditions.\u00a0 AstraPharmaceutical 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 issue of whether theSecretary had carried her burden of proving the applicability of the standard to Tudor’sspray booth.\u00a0 More specifically, we asked whether the Secretary had proved that thiswas a conventional dry type spray booth and that overspray dry filters or filter rolls hadbeen installed.\u00a0 As we read the standard, if the Secretary has failed to prove eitherof these facts we cannot conclude that the standard applies and therefore cannot find aviolation.In the Complaint, the Secretary did not allegethat the spray booth in question was a conventional dry type spray booth within themeaning of paragraph (5) or that it had overspray dry filters or filter rolls installed,facts which would bring the booth within the coverage of subparagraph (iv).\u00a0 At thehearing, the compliance officer did not state what kind of booth this was or indicate thatoverspray dry filters or filter rolls had been installed.\u00a0 Neither the Secretary’spost-hearing brief to the administrative law judge nor the judge’s decision mentionedparagraph (5) of the standard, although both quoted subparagraph (iv).\u00a0 TheSecretary’s petition for review and brief on review both quoted subparagraph (iv) withoutmentioning paragraph (5), even though paragraph (5) is the section that describes whereand under what circumstances subparagraph (iv) applies.The Secretary asserts in her supplemental briefthat, at all stages of the proceeding, the parties acted on the assumption that Tudor’sBody Shop’s booth was a dry spray booth, even though the Secretary neither alleged norpresented testimony that it was.\u00a0 Tudor’s was not represented by an attorney; itappeared pro se by its president, William Tudor.\u00a0 Mr. Tudor asserted inhis Answer to the Complaint that the standard does not apply to his operation, and herepeated that claim at the hearing, even though he did not specify why.\u00a0 TheSecretary therefore had ample notice that the applicability of the standard was in issue.\u00a0 We are unwilling to find a violation on the basis of an assumption, as theSecretary urges.The Secretary also argues, in effect, that therecord establishes that the standard applies because section 1910.107(b) contemplates onlytwo types of booths, wet booths and dry booths; and the Secretary asserts that Tudor’s’booth does not fit the definition of a wet booth.\u00a0 Therefore, according to theSecretary, it must be a dry booth.\u00a0 We are not persuaded by this argument.\u00a0 Looking at 29 C.F.R. ? 1910.107(a), we find the following definitions:(3) Spray booth.\u00a0 A power-ventilatedstructure provided to enclose or accommodate a spraying operation to confine and limit theescape of spray, vapor, and residue, and to safely conduct or direct them to an exhaustsystem.(4) Waterwash spray booth.\u00a0 A spraybooth equipped with a water washing system designed to minimize dusts or residues enteringexhaust ducts and to permit recovery of overspray finishing material.(5) Dry spray booth.\u00a0 A spray boothnot equipped with a water washing system as described in subparagraph (4) of thisparagraph. A dry spray booth may be equipped with (i) distribution or baffle plates topromote an even flow of air through the booth or cause the deposit of overspray before itenters the exhaust duct; or (ii) overspray dry filters to minimize dusts; or (iii)overspray dry filters to minimize dusts or residues entering exhaust ducts; or (iv)overspray dry filter rolls designed to minimize dusts or residues entering exhaust ducts;or (v) where dry powders are being sprayed, with powder collection systems so arranged inthe exhaust to capture oversprayed material.The definition of \”spray booth\”indicates that wet and dry booths have certain common characteristics: they both havepower ventilation; they both confine the spray, vapor, and residue; and they both exhaustthe spray, vapor, and residue.\u00a0 The difference is that a wet booth has a waterwashing system to wash the overspray residues from the air being exhausted, while a drybooth does not.\u00a0 While we agree with the Secretary that the record does not show thatthis is a wet booth, the record also does not show that it is not.\u00a0 Theevidence does not afford 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 therecord by Mr. Tudor that refers to filters. Describing an exhibit introduced by theSecretary, Mr. Tudor responded to a question from the judge, \”That is the back endthat you don’t see the filters.\”\u00a0 The Secretary claims that this statementproves that the standard applies, because the reference must be to exhaust filters andonly dry booths have them.\u00a0 However, we find little in the record to support thatargument.\u00a0 Nowhere in the record is there any support for the proposition that wetbooths do not have filters.\u00a0 Likewise, we find no evidence that the only filtersfound in dry booths are those subject to the standard.\u00a0 It is possible, for example,that some spray booths may filter incoming replacement air to keep dust and grit from thefinish.\u00a0 Because the Secretary’s assertions are not supported by the record, wereject them.Moreover, we are unable to find that Tudor’sspray booth had overspray dry filters or filter rolls installed.[[3\/]]\u00a0 Mr. Tudor’sresponse to the judge’s question is sufficiently ambiguous that we cannot say with anyconfidence that it proves that there were filters in the booth at all.\u00a0 It ispossible that he was saying that there were filters in the booth that were not shown inthe exhibit he was describing, but we are by no means certain that he meant that.\u00a0 Even if that is what he intended to say, we find no indication in this record as towhat kind of filters he may have been referring to.\u00a0 He may have been referring tooverspray filters, but he may also have been referring to some other kind filters.\u00a0 We simply do not know.Having examined the record, we find that theevidence does not establish that the spray both in Tudor’s Body Shop had overspray dryfilters or filter rolls installed.\u00a0 We therefore conclude that the Secretary failedto prove that 29 C.F.R. ? 1910.107(b)(5)(iv) applies to the cited spray booth.\u00a0 Hence, we cannot find that Tudor’s was in violation of the cited standard.This decision does not constitute a finding thatthe standard does not apply to the spray booth.\u00a0 Perhaps, if the record contained anadequate description of the spray booth in Tudor’s Body Shop, we would find that it doesapply; but, on this record, we cannot know whether it does or not.\u00a0 We therefore donot make any finding as to whether or not section 1910.107(b)(5)(iv) applies to Tudor’sspray booth.\u00a0 We merely find that, on this record, the Secretary has failed to provethat element of the alleged violation.The Secretary has suggested in her brief that,if the Commission does not find that the record supports a finding that the standardapplies, a remand would be appropriate because \”the applicability of the standard wastaken as a given.\”\u00a0 We disagree.\u00a0 The Answer filed by Tudor’s specificallydenied that the standard applies to its spray booth.\u00a0 At the hearing, Mr. Tudorpursued this position, although he may not have articulated it in terms which informed theSecretary of the basis for his assertion.\u00a0 It has long been established by Commissionprecedent that the first element in proving a violation of any standard is proof that thestandard applies to the cited conditions.\u00a0 Given the failure of the Secretary topresent evidence on this element of her prima facie case, it would not be proper torequire Tudor’s to endure the inconvenience and expense of another evidentiary hearing inorder to give the Secretary a second chance to prove a simple violation.We therefore affirm the administrative law judge’s disposition of this case, although notfor the reasons relied on by the judge.\u00a0 We vacate the citation because the Secretaryhas failed to establish the applicability of 29 C.F.R. ? 1910.107(b)(5)(iv) to the citedspray booth.Edwin G.Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G.WisemanCommissionerDated: March 25, 1991ANN MCLAUGHLIN, SECRETARY OF LABOR,U.S. DEPARTMENT OF LABOR Complainant v. TUDORS BODY SHOP RespondentDocket No. 88-0462APPEARANCES:THOMAS A. BROWN, ESQUIRE U.S. Department of Labor Office of the Solicitor MR. WILLIAM TUDOR (Pro Se) Tudor’s Body ShopDECISION AND ORDERTENNEY, JUDGE:1.\u00a0 The Occupational Safety and HealthAdministration conducted an inspection in June 1987 of Tudor’s Body Shop. Severalcitations for violations of the Occupational Safety and Health Act were issued. All havebeen settled except one, an alleged violation of 29 C.F.R. 1910.107(b)(5)(iv). This is nowbefore the undersigned by virtue of a timely contest on August 28, 1987. The case washeard on May 31, 1988. The attorney for the Secretary of Labor has filed a post-hearingbrief. No post-hearing brief has been filed by or on behalf of Tudor’s Body Shop.2.\u00a0 The critical allegation is that on June 8, 1987, the employer violated the citedstandard in that automatic sprinklers were not provided inside the spray painting boothwhere flammable paints and coatings were applied by its employees.\u00a0 There are relatedallegations involving employee exposure to the alleged hazard and the actual orconstructive knowledge by the employer of the alleged hazard.\u00a0 A penalty of $150 wasproposed. See Paragraph VII of the Secretary’s Complaint.3.\u00a0 The employer admits that no automaticsprinklers were provided, but denies that they were required.\u00a0 Further, the employeradmits that flammable paints and coatings were used in the booth, but denies that thesprinklers would reduce the likelihood of any injury.\u00a0 The employer also admits thatit knew that there were no sprinklers in the booth, but again denies that the conditionviolated an OSHA standard.\u00a0 The appropriateness of the proposed penalty is alsodenied.\u00a0 The Answer.4.\u00a0 The cited standard reads as follows:1910.107 Spray finishing using flammable andcombustible materials.(b) Spray booths.5.\u00a0 Dry type overspray collectors (exhaust air filters)(iv) Space within the spray booth on thedownstream and upstream sides of filters shall be protected with approved automaticsprinklers.5.\u00a0 The employer does auto body and fender work as well as auto painting.\u00a0 Thepainting is done in a spray booth that is about 10 to 12 feet wide and 15 to 20 feet long;it has exhaust ventilation at one end.\u00a0 It contained a large bay door through whichan auto to be painted would enter.\u00a0 (Testimony of Mr. Woodburn, Tr. 11, 15-16)\u00a0 Usually, one auto a day is painted in the spray booth.\u00a0 It takes about four tofive hours for an auto to dry in the booth. (Testimony of Mr. Tudor, Tr. 43)6.\u00a0 In his brief, the Secretary notes thatan important element in any violation of a standard under section 5(a)(2) of theOccupational Safety and Health Act of 1970 is the employees being exposed to a hazard as aresult of the cited condition. Here, the inspector testified that flammable paints andcoatings inside the booth were being atomized into the air, and the only thing lacking wasa source of ignition; examples of sources of ignition were given as metal-to-metal contactof any nature, someone walking into the booth with a lighted cigarette, a spark from anauto ignition, or a crack or other imperfection in the explosion – proof lighting.(Testimony of Mr. Woodburn, Tr. 20)\u00a0 This case turns on whether a source of ignitionexists.\u00a0 The credible testimony is that no source of ignition was present.\u00a0 Theemployer has only one painter who does not smoke, and when he goes into the booth it ishis habit to lock the door behind him.\u00a0 When an auto is driven in the booth forpainting, its battery is disconnected; after the paint dries the battery cable is put backand the auto is driven out.\u00a0 The lighting is approved by the insurance underwriter asexplosion and fireproof; and all electric switches and compressors were located outsidethe booth.\u00a0 (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 reduced to speculation.7.\u00a0 If the existence of an ignition sourcewere to be found remote rather than non-existent in light of any frailty of human habit inclosing the door to the spray booth, no abatement order would be considered appropriateunder 29 U.S.C. section 659(c).\u00a0 This is because of the remoteness of the possibilityitself and the fact that even if a sprinkler system were installed, and if a fire orexplosion were to occur, it could not be activated quickly enough to prevent the injury ordeath of the painter.\u00a0 (Testimony of Mr. Tudor, Tr. 42)\u00a0 See Industrial MetalFinishing Corp., 1979 CCH OSHD Par. 23,342 (adm. law judge, 1979) (similar violationfound to be de minimis).8.\u00a0 The contested alleged violation of 29 C.F.R. section 1910.107(b)(5)(iv) is herebydismissed.SO ORDERED.PAUL A. TENNEY Judge, OSHRCDATED: August 23, 1986Washington, D.C.FOOTNOTES:[[1\/]] That standard provides:?1910.107\u00a0 Spray finishing usingflammable and combustible materials.(b) Spray booths-(5) Dry type overspray collectors–(exhaustair filters).\u00a0 In conventional dry type spray booths, overspray dry filters orfilter rolls, if installed, shall conform to the following:(iv) Space within the spray booths on thedownstream and upstream sides of filters shall be protected with approved automaticsprinklers.[[2]] See American Steel Works, 9 BNAOSHC 1549, 1551 n.4, 1981 CCH OSHD ? 25,285, p. 31,270 n.4 (77-553, 1981).[[3\/]] According to the definition, a dry spraybooth may have baffle plates, overspray filters, or filter rolls.\u00a0 It is unclear fromthis definition whether a dry spray booth must have one of these devices or whetherthe definition merely describes permissible options. Section 1910.107(b)(5) does notenlighten us on this point, either, because it says that, if overspray dry filters orfilter rolls are installed, they must meet the requirements set out insubsections (i)-(iv), which also leaves unanswered the question of whether such equipmentis required, so that failure to have it would constitute a violation.\u00a0 We thereforecannot draw any conclusions as to whether or not this spray booth had filters from thefact that it was not cited for failure to have them, since that may not be a violation.”