Milliken & Company

Plain-English summary

OSHA sampling at Milliken's Georgia textile plant showed second-shift cotton-dust exposure above the permissible limit in 29 C.F.R. § 1910.1043(c)(1). The Commission accepted the ALJ's finding that OSHA's vertical-elutriator sampling was substantially accurate. It nevertheless vacated the exposure item because the Secretary did not prove Milliken knew or should have known of the excessive level. Milliken had monitored the area three months earlier, obtained a second-shift average at the permissible limit, required respirators for shifts that tested above the limit, planned and installed engineering controls, and was not required to remonitor for six months. For the same lack-of-knowledge reason, the Commission vacated the related respirator-use item under 29 C.F.R. § 1910.1043(f)(1)(iii). It reversed the ALJ and vacated the proposed $300 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1043(c)(1); 29 C.F.R. § 1910.1043(f)(1)(iii)
• Outcome: Both cotton-dust items and the $300 penalty vacated.
• Key point: Accurate OSHA exposure measurements do not establish a violation without employer knowledge, especially when recent compliant monitoring and the standard's monitoring schedule gave no reason to expect the later excessive level.

Full text (OSHRC public release)

Docket No. 84-0767

SECRETARY OF LABOR,

Complainant,

v.

MILLIKEN & COMPANY,

Respondent.

OSHRC Docket No. 84-0767

DECISION

BEFORE: MONTOYA and WISEMAN, Commissioners.[[1/]]

BY THE COMMISSION:

The Secretary of Labor ("Secretary") issued a serious
citation to Milliken & Company ("Milliken") following an inspection of its
New Holland plant in Gainesville, Georgia. The citation alleges that Milliken violated two
provisions of the cotton dust standard, 29 C.F.R. � 1920.1043. Former Review Commission
Administrative Law Judge Joe D. Sparks affirmed both items of the citation and assessed a
total penalty of $300. We reverse the judge and vacate both items.

I. Item 1(a): 29 C.F.R. � 1910.1043(c)(1)

In June of 1984, a team of Occupational Safety and Health Administration
("OSHA") industrial hygienists inspected Milliken's New Holland plant. Samples
taken in the second floor drawing room during the second work shift, from 8:00 am to 2:30
pm, registered employee exposure levels--in micrograms of respirable cotton dust per cubic
meter of air (ug/m 3 )--of 448 ug/m 3 , 450 ug/m 3 , 455 ug/m 3
and 470 ug/m 3 . The Secretary subsequently issued a citation alleging that
Milliken had failed to comply with 29 C.F.R. � 1910.1043(c)(1), by exposing its employees
to levels of respirable cotton dust in excess of the permissible exposure limit
("PEL") of 200 ug/m3. At the time of the alleged violation, the standard
provided[[2/]]:

� 1910.1043 Cotton dust.

(c) Permissible exposure limits. (1) The employer shall assure that no employee who
is exposed to cotton dust in yarn manufacturing is exposed to airborne concentrations of
lint-free respirable cotton dust greater than 200 ug/m 3 mean concentration,
averaged over an eight-hour period, as measured by a vertical elutriator or a method of
equivalent accuracy and precision.

To prove a violation of a standard, the Secretary must
establish: (1) the applicability of the standard, (2) the existence of noncomplying
conditions, (3) employee exposure or access, and (4) that the employer knew or with the
exercise of reasonable diligence could have known of the allegedly violative conditions. Dun-Par
Engineered Form Co., 12 BNA OSHC 1962, 1965, 1986-87 CCH OSHD � 27,651, p. 36,033
(No. 82- 928, 1986).

The party does not dispute the applicability of the standard.
Milliken was manufacturing a blend of polyester and cotton yarn in its second floor
drawing room on the days of the inspection.  The standard applies to cotton dust
exposure during "yarn manufacturing". 29 C.F.R. � 1910.1043(a)(1).

There is also no dispute that employees were exposed to the
cotton dust. Employee Olden Blackwell was present in the drawing room for most of the work
day, and two other employees were in the room for a part of the day.

The existence of noncomplying conditions and Milliken's
knowledge of them are in dispute. We first consider whether the Secretary established the
existence of noncomplying conditions.

A. Background and Evidence

During their inspection of the drawing room, the Secretary's
industrial hygienists used vertical elutriators, the sampling devices referred to in the
standard, to measure the level of respirable cotton dust in the room. Four elutriators
were positioned in different parts of the room.

Cylindrical in shape, a vertical elutriator is divided into
three interconnected sections. Pumps draw air upward through the bottom section of the
elutriator. The air flows upward until it reaches the cassette portion of the elutriator,
where a cassette filter absorbs dust particles fifteen microns and smaller in size;
heavier particles fall to the bottom of the elutriator. (To ensure the accuracy of
samples, elutriators are calibrated both before and after sampling.)

Once sampling is completed, the cassette filters are
"desiccated". i.e., any accumulated water is removed from the filters. The
samples are weighed on an electron balance. The net weight of the sample is determined by
subtracting the weight of the cassette before sampling from the weight of the cassette
after sampling. This net weight is then adjusted by subtracting the weight gain of a
"control" filter, which is contained throughout the sampling period in a
cassette that is not connected to an elutriator and which is used to measure larger,
non-respirable dust particles in the air outside the elutriator.

Harmon Evans, formerly a micro-biologist with the Center for
Disease Control and an industrial hygienist for OSHA for eleven years, testified in detail
about the sampling procedures he employed during the inspection of Milliken's New Holland
plant. Evans testified that he followed proper procedures in desiccating and weighing the
filters and then reweighing each filter three times for accuracy the next day. Evans also
testified that the accuracy of the sampling results was confirmed by the use of a control
cassette and by the uniformity of the results of the samples from each of the four
vertical elutriators-- 448 ug/m 3 , 450 ug/m3, 455 ug/m 3 and 470 ug/m 3 .
The closely-bunched results suggested to Evans that there were "no unusual
circumstances that could have increased the weight of those filters." He was not
aware of any problems with his handling of the cassettes.

The Secretary's other industrial hygienist who appeared as a
witness at the hearing, Cynthia Wolfe, had worked with OSHA for five years. Wolfe
testified that she had been in the drawing room for the entire sampling day (with the
exception of an hour for lunch, during which she was relieved by another industrial
hygienist). Throughout the day, Wolfe observed the vertical elutriators and the employees
working in the drawing room to make sure no one tampered with the sampling devices. She
also checked the pumps periodically. She did not observe any problems with either the
elutriators or the pumps.

Milliken's training manager, Loren Strickland, was also
responsible for supervising Milliken's own sampling of cotton dust exposure at the plant.
Although he had not personally conducted the cotton dust monitoring, he had supervised the
taking of 120-150 cotton dust samples. Strickland had no formal training as an industrial
hygienist. He testified that, during the OSHA inspection, he had observed the Secretary's
industrial hygienists while they were sampling the drawing room exposures. Strickland
alleged that the hygienists used a number of procedures that might have caused sampling
errors: (1) an unspecified number of sampling cassettes were briefly exposed to unfiltered
room dust outside the elutriators, both while the cassettes were still attached to working
pumps and while they were being handled separately; (2) tape intended to seal one cassette
onto an elutriator did not form a complete seal and therefore could have allowed
unfiltered air to get through to the cassette; and (3) the tops of cassettes were kept in
the pockets of the Secretary's hygienists, where they could acquire lint that could be
transferred to cassette filters when the tops were put onto the filters.

B. The Decision of Judge Sparks

The judge found that the sampling results obtained by the
Secretary were substantially accurate:

OSHA personnel carefully set up the equipment, and handled,
processed and weighed the cotton dust samples so that the results obtained were
substantially accurate and reliable [transcript citations omitted].

The judge accorded greater weight to testimony given by OSHA's
industrial hygienists establishing the accuracy of those results, than to testimony given
by Milliken training manager Strickland alleging that the sampling had been tainted. The
judge described OSHA's industrial hygienists as "well trained professionals,"
while noting that training manager Strickland had received no training as an industrial
hygienist. He concluded that Milliken had failed to produce "firm evidence" that
careless handling of the samples by the industrial hygienists had produced test results
that were significantly higher than the actual cotton dust levels in the sampled work
areas.

C. The Arguments of the Parties

Milliken argues that the Secretary's cotton dust samples were
not properly taken and, therefore, did not yield accurate results [[3/]]. It argues that
training manager Strickland had more experience in cotton dust sampling with vertical
elutriators than did the Secretary's industrial hygienists. Accordingly, it continues,
Strickland's testimony demonstrates that the Secretary's results were inaccurate because
the samples were mishandled. Milliken also argues that it was unlikely that the cassette
filters used by the Secretary during sampling were weighed properly because the weight of
each filter came out exactly the same each of the three times it was weighed.

The Secretary contends that the judge properly gave greater
weight to the testimony of her well-trained industrial hygienist than to the testimony of
Milliken's training manager, who had received no training as an industrial hygienist. We
agree. We see no reason to disturb the judge's finding that the testimony of the
Secretary's professional industrial hygienists should be given greater weight that the
testimony of Milliken's training manager, who had not been trained as an industrial
hygienist. See Kelly Springfield Tire Co., 10 BNA OSHC 1970, 1973, 1982 CCH OSHD �
26,223, p. 33,113 (No.78-4555, 1982)(safety experts familiar with general workplace
condition recognized explosion hazard, although respondent's plant personnel did not). The
industrial hygienists testified that there were no problems with the sampling cassettes or
the elutriators. They employed a control cassette that helped ensure reliable results, and
the results obtained from the secretary's sampling with four different vertical
elutriators were very closely bunched together at 448 ug/m 3 , 450 ug,/m 3 ,
455 ug/m 3 and 470 ug/m 3 . Taken together, this evidence is sufficient
to establish that the sampling results were substantially accurate; the results falling
within such a narrow range is the strongest proof of their accuracy. We therefore accept
the judge's finding that Milliken employee Blackwell was exposed to impermissible levels
of cotton dust in the second floor drawing room.

D. Did Milliken Know of the High Cotton Dust Levels?

In order to find an employer in violation of a standard, it is
not enough to find that a condition contravening that standard existed at the employer's
workplace. The Secretary must also prove that the employer either knew or, with the
exercise of reasonable diligence, could have known of the noncomplying condition. See
Dun-Par, Engineered Form Co., supra . For the reasons that follow, we conclude
that the Secretary failed to meet that burden in this case.

The evidence establishes that Milliken had monitored the second floor drawing room for
cotton dust levels with three vertical elutriators in March of 1984, about three months
before OSHA conducted its sampling. At the time, the plant was operating three shifts, 24
hours a day. Milliken took three samples during each of the three work shifts. It obtained
the following results:

Work shift 1 (12:00 a.m.- 8:00 a.m.):

249 ug/m 3 , 265 ug/m 3 , 115 ug/m 3 (Average: 210 ug/m 3 );

Work shift 2 (8:00 a.m.- 4:00 p.m.):

179 ug/m 3 , 300 ug/m 3 , 122 ug/m 3 (Average 200 ug/m 3 );

Work shift 3 (4:00 p.m.- 12:00 p.m.):

635 ug/m 3 , 273 ug/m 3 , 112 ug/m 3 (Average: 340 ug/m 3 ).

After obtaining these results, Milliken required its first and third shift drawing room
employees, who were exposed to an average level of cotton dust in excess of the 200 ug/m 3
PEL, to wear respirators for the period of time necessary to reduce their exposure to a
level below the PEL, as required by 29 C.F.R. � 1910.1043(f). First shift employees
(12:00 a.m.- 8:00 a.m.) were required to wear respirators for 30 minutes during each
shift. Third shift employees (4:00 p.m.- 12:00 p.m.) were required to wear respirators for
four hours during each shift. Milliken, as required by 29 C.F.R. � 1910.1043(f)(1)(i)),
mandated the respirator use as a temporary protective measure until employee exposure
levels could be lowered by engineering controls. Milliken subsequently installed these
engineering controls in accordance with the requirement at 29 C.F.R. � 1910.1043(e)(1).
See note 4, infra.

Second shift employees (8:00 a.m.- 4:00 p.m.) were not required to wear respirators
because the average results for that shift were at the permitted limit of 200 ug/m 3
(The violation alleged by the Secretary in this case occurred during the second shift.).
Milliken notified its employees that it would be "remonitoring [the third shift] to
determine whether ... the unusually high reading [of 635 ug/m3) was the result of
monitoring error."

Milliken also prepared the "Cotton Dust Engineering
Compliance Plan", as required by 29 C.F.R. � 1910.1043(e)(3)(ii). According to this
document:

Recent cotton dust monitoring results indicate that the second
floor drawing area may be over the permissible exposure limit (PEL) for cotton dust....
Retesting will be performed to determine whether the possible "increase" in dust
level in this area is the result of sampling error.

Milliken's training manager Strickland testified that he planned to conduct further
testing in the second floor drawing room sometime after the March 1984 sampling. However,
the retesting had not yet taken place when the secretary sampled the room three months
later.[[4/]]

Judge Sparks found that Milliken's failure to undertake additional testing, after
discovering borderline violations and noting the necessity of such retesting, negates its
claim that it acted with reasonable diligence. The judge found that reasonable diligence
would have required that resampling be performed.

Milliken, citing 29 C.F.R. � 1910.1043(d) (3) (i) and (ii),
argues that it complied with the requirements of the cotton dust standard that were in
effect at the time. See note 2, supra . It contends that the standard only required
an employer to monitor employee cotton dust exposure either every six months or whenever
there was a production, process, or control change that might result in new or additional
exposure to cotton dust. Milliken notes that its March 1984 sampling result of 200 ug/m3
for the second work shift was within the standard's PEL. Because no production, process or
control changes had occurred between its March 1984 sampling and OSHA's June 1984
inspection, Milliken argues that it had no reason to believe that the dust levels would be
higher in June than its most recent monitoring had indicated.

Since the Secretary does not dispute the accuracy of Milliken's
March 1984 testing, Milliken argues that she has failed to prove that it either knew or
could have known that dust levels exceeded the PEL on the day of inspection. Milliken
relies on General Electric Co., 9 BNA OSHC 1722, 1728, 1981 CCH OSHD � 25,345, p.
31,455 (No. 13732, 1981), in which the Commission found that the Secretary failed to
establish employer knowledge of excessive levels of asbestos because the employer had
monitored the involved area prior to the OSHA inspection and had found that the levels of
asbestos present were within permissible limits.

The Secretary responds by arguing that Milliken's duty to
anticipate hazards to which its employees may be exposed obligated it to retest the
drawing room after its March 1984 testing showed cotton dust levels above permissible
limits.

We are persuaded that this case is essentially similar to General
Electric. In that case, the Commission held that if an employer knows that a regulated
air contaminant is present in its facility, reasonable diligence requires it to measure
the amount of the contaminant to determine whether it is present in excessive amounts. 9
BNA OSHC at 1728, 1981 CCH OSHD at p. 31,455. When the Secretary alleges that the
contaminant is present in impermissible levels, but the employer shows that it had made
measurements and determined that the concentration was not excessive, the burden is on the
Secretary to show that the employer's failure to discover the excessive concentrations
resulted from a failure to exercise reasonable diligence. Id.

In this case, Milliken tested in March of 1984 and learned that
cotton dust levels were at the PEL during work shift 2, slightly above the limit in work
shift 1, and well above the limit in work shift 3. After obtaining those results, Milliken
required drawing room employees exposed to cotton dust in excess of the PEL to wear
respirators to reduce their exposure, as required by section 1910.1043(f). This respirator
use was required until employee exposure levels were lowered to permissible limits by
engineering controls. As previously stated, Milliken installed engineering controls a few
weeks after the Secretary's inspection, and it also prepared the cotton dust engineering
plan required by section 1910.1043(e)(3)(ii).

Having conducted employee monitoring in March of 1984, Milliken
was obliged--by sections 1910.1043(d)(2) and (3)(i)[[5/]]--to re-monitor "at least
every six months." Therefore, Milliken was not required to re-monitor until September
of 1984, three months after the Secretary's inspection.

The Secretary had the burden of showing that Milliken's failure to re-monitor to discover
and discover the excessive concentrations found during the Secretary's June inspection
constituted a failure to exercise reasonable diligence.  See General Electric,
Id. She has failed to meet that burden here. The evidence shows that after
obtaining the results of its initial monitoring, Milliken took the steps required by the
cotton dust standard to reduce employee exposures. The cotton dust standard did not
require it to remonitor for six months after its March monitoring. The Secretary has
failed to suggest any plausible basis for holding Milliken to a higher standard than this.
We therefore find that reasonable diligence did not require Milliken to retest during the
three-month period between its initial testing and the date of the Secretary's inspection.
Accordingly, we find that the Secretary has failed to prove that Milliken could have known
of the impermissible exposure levels during the second shift with the exercise of
reasonable diligence. Item 1(a) of the citation must be vacated.

II. Item 1(c): 29 C.F.R. � 1910.1043(f)(1)(iii)

The Secretary also alleges, in item 1(c) of her citation, that Milliken violated 29 C.F.R.
� 1910.1043(f)(l)(iii) [[6/]] by failing to require drawing room operator Blackwell to
wear a respirator for the length of time needed to reduce his exposure to respirable
cotton dust to the permissible limit.  We vacate this item of the citation for the
same reason we vacated item 1(a). The Secretary failed to prove that Milliken knew or,
with the exercise of reasonable diligence, could have known of the presence of
impermissible levels of cotton dust that would have required Blackwell to wear a
respirator.

III. ORDER

Accordingly, the judge's decision is reversed. Items 1(a) and
1(c) of the citation, and the proposed penalty of $300, are vacated.

Velma Montoya

Commissioner

Donald G.Wiseman

Commissioner

Dated: February 27, 1991

SECRETARY OF LABOR,

Complainant,

v.

MILLIKEN & COMPANY,

Respondent.

OSHRC Docket No. 84-0767

APPEARANCES:

Ken S. Welsch, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta,
Georgia, on behalf of complainant.

CarI B. Carruth, Esquire, Thompson, Mann and Hutson,

Greenville, South Carolina, on behalf of respondent.

DECISION AND ORDER

SPARKS, Judge: This is a proceeding under section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter
referred to as the "Act"), to review a citation issued by the Secretary of Labor
pursuant to section 9(a) of the Act.

Following an inspection by the Occupational Safety and Health
Administration, a serious citation was issued charging respondent with violations of the
cotton dust standard. The evidence establishes that an employee was exposed to levels of
cotton dust in excess of the maximum permitted by the standard and respirators were not
worn for an appropriate length of time. Respondent contends it exercised reasonable
diligence in monitoring air quality and did not know nor should have known of the hazard.

In June 1994, industrial hygienists of OSHA collected cotton
dust samples in the carding, warping and drawing areas of respondent's New Holland Plant
located at Gainesville, Georgia. Samples from the carding and the warping areas resulted
in findings of cotton dust within permissible limits, but the samples from the second
floor drawing room averaged 455.5 ug/m3. The results were 2.275 times the 200 ug/m3
maximum permitted by 29 C.F.R. � 1910.1043 (c)(l). [[1/]] Cotton dust levels of that
volume would require the use of a respirator from 5 to 5 1/2 hours during the work shift
in order to bring employee exposure within permissible limits as required by 29 C.F.R.
  � 1910.1043(f)(1)(iii).

Operator Olden Blackwell worked in the area for his entire shift except for a 30- minute
lunch break and wore a respirator only nine minutes (Ex. C-7; Tr. 109-110). These facts
led to the issuance of a serious citation charging respondent with violations of the two
sections for which a penalty of $300 was proposed. [[3/]]

I

Respondent questions the accuracy of the sampling results by
suggesting that the OSHA industrial hygienists were careless in the manner they handled
the sample cassettes before they were placed into the vertical elutriators (Tr. 141). Mr.
Loren Strickland, respondent's training manager, testified that the hygienists "did
not seem to have a sense of time urgency getting the cassette in the elutriator,"
after the top had been removed and on one occasion the seal made with tape was not tight
so that air could possibly get into the cassette (Tr. 142-143, 167).  Strickland
further stated that cassette tops were kept in the pockets of the hygienists subjecting
them to possible contamination and the pumps remained running at the conclusion of the
sampling period thereby pulling in more air when the top of the elutriator was removed
(Tr. 143-144). He further testified that a sample cassette with the top off was exhibited
to a group of persons after it was removed from the elutriator (Tr. 191-192).

Mr. Harmon Evans, OSHA's supervising industrial hygienist,
explained in detail the procedures for calibrating and setting up the equipment, obtaining
the samples, handling the sample cassettes, weighing the samples, and computing the
results (Tr. 23-41, 54-62, 88-97, 180-185). He testified that he saw no problems with
procedures whereby the samples were obtained and none were brought to his attention (Tr.
180-181). He stated that the validity of the sampling results was verified by the use of a
blank or control cassette (Tr. 181-185), and he further testified that the accuracy of the
sampling results was confirmed by the uniformity of the results of samples from each of
the four elutriators which weighed 448 ug/m 3 , 450 ug/m 3 , 455 ug/m 3
and 470 ug/m 3 (Tr. 187).

Ms. Cynthia Wolfe, an OSHA industrial hygienist, observed the
sampling process in the second floor drawing room the entire day except for a lunch hour
when she was relieved by another hygienist. She periodically checked the pumps to insure
that they were operating properly. She detected no problems (Ex. C-7; Tr. 104-105,
111-112).

The weight of the evidence shows the results were substantially
accurate. The OSHA industrial hygienists are well trained professionals (Tr. 11-12,
102-103). Their testimony that there were no problems with the results of the samples is
given greater weight than that of Mr. Strickland who is not an industrial hygienist and
has received no training as an industrial hygienist (Tr. 150).

Significantly, respondent produced no firm evidence that the
alleged "careless handling" produced significantly higher sampling results. It
is concluded that the samples were reliable and within the 25 percent margin for sampling
error and accurately reflected the cotton dust levels on June 19, 1984 (Ex. R-4; Tr.
84-85).

II

Respondent contends it did not know of the violative conditions
although it had been reasonably diligent in ascertaining cotton dust levels.

In General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC
172, 1981 CCH OSHD � 25,345 (No. 13732, 1981), the Review Commission stated the
Secretary's burden of proof as follows (9 BNA OSHC at p. 1727-1728):

[I]n order to find an employer in violation of a standard, it
is not enough to find that a condition contravening that standard existed in the
employer's workplace. The Secretary must also prove that the employer either knew or could
have known with the exercise of reasonable diligence of the noncomplying condition. Dunlop
v. Rockwell International, 540 F2.d 1283 [4 OSHC 1606] (6th Cir. 1976); Brennan v.
OSHRC (Alsea Lumber Co. ), 511 F.2d 1139 [2 OSHC 1649] (9th Cir. 1975) ; Prestressed
Systems Inc, OSHRC Docket No. 16147 [9 OSHC 1864] (April 27, 1981); Scheel
Construction Co., 76 OSAHRC 138/B6, 4 BNA OSHC 1825, 1976-77 CCH OSHD � 21,263 (No.
8687, 1976).

As in General Electric, Milliken periodically took air
samples to determine the level of air contamination. Respondent tested 17 or 18 areas
every six months to determine the level of cotton dust. Sampling of the second floor
drawing room was last performed prior to the OSHA inspection on March 13 and 14, 1984,
about three months before the OSHA sampling. Respondent sampled the three work shifts
operating at that time. The samples average 210 ug/m 3 on the first shift
period, 200 ug/m 3 on the second work period and 340 ug/m3 on the third work
period (Ex. C-1; Tr. 132-133). The overall average for the three work periods was 250 ug/m 3
(Tr. 132). The facts in General Electric differ substantially from those in this
case; because, in General Electric, company sampling uniformly showed asbestos
levels below the maximum permitted level. At Milliken the results were above the
maximum permitted level. Milliken officials thought that the results had been distorted by
an unusually high sample from one elutriator of 635 ug/m 3, and noted the necessity for
retesting (Ex. C-2, C-3, R-5; Tr. 163-164). Based upon the results, respirators were
required to be worn by employees on each shift for the times indicated as necessary to
reduce the cotton dust exposure to permitted levels (Ex. R-5). Respirators were not
required for the second shift. Although the necessity for retesting was noted in reports,
the drawing room was not retested for cotton dust (Ex. C-2, C-3, R-5). Mr. Strickland
explained the failure to remonitor the drawing room as follows (Tr. 137):

Due to business conditions, we went to a six-day shift
schedule, and when we went to a six day shift schedule, we no longer had that work period
[the third] in effect.

The business decision led to bringing in additional drawing
frames, two of which were being erected at the time of the OSHA inspection (Tr. 138).

Mr. Strickland testified he knew of no reason to account for
the much higher levels of cotton dust found by OSHA than by his own sampling. The same
fibers were being processed, the machines were running at the same speed and the air
conditioning and ventilation systems were unchanged [[4/]] (Tr. 139-140). It is noted,
however, that OSHA and Milliken placed their elutriators at different locations in the
room as respondent's equipment had to be located near electrical outlets (Ex. C-7; Tr.
152-157).

Respondent's testing established that levels of cotton dust
were above the permitted maximum level and it had knowledge of the violative conditions.
The failure to undertake additional testing when their own testing at the least showed
borderline violations and after their own records noted the necessity of such retesting
negates respondent's claim that it acted with reasonable diligence. Reasonable diligence
would require, under the circumstances, that resampling be performed. Respondent failed to
do so.

It is concluded that respondent was in violation of 29 C.F.R.
� 1910.1043(c)(1) and 29 C.F.R. � 1910.1043(f)(1)(iii).

III

Cotton dust can cause serious bodily injury or death and a citation for serious violation
is warranted. The Secretary proposed a penalty of $300 after giving full credit for past
history and good faith. No reduction for size is warranted. Considering the gravity of the
violation and the size, history and good faith respondent, a penalty of $300 is reasonable
and appropriate.

FINDINGS OF FACT

1. Respondent is engaged in the operation of a textile mill
   known as the New Holland Plant, Spring Street, Gainesville, Georgia. At that location, it
   employed approximately 400 employees. Goods produced at the facility were shipped to
   places outside the State of Georgia (Tr. 9, 13).

2. Cotton is regularly used and worked on at various locations
   within the New Holland Plant. Cotton dust samples are taken each six months at 17 or 18
   locations (Ex. C-3; Tr. 175).

3. On March 13 and 14, 1984, respondent sampled for cotton dust
   at the Second Floor Drawing Room during shift periods one, two and three. The samples
   revealed average findings of cotton dust of 210 ug/m 3 for the first period, 200
   ug/m 3 for the second period and 340 ug/m 3 for the third period. The
   accuracy of the samples is questionable because of one sample of 635 ug/m 3
   which was far out of line with the results of all other samples (Ex. C-1; Tr. 133-134).

4. As a result of the findings shown in paragraph three above,
   respondent noted in an engineering plan "that the second floor drawing area may be
   over the permissible exposure limit (PEL) for cotton dust...", cited the need for
   retesting to determine whether the increase in dust was due to sampling error, required
   the use of respirators and set forth plans for engineering controls to insure that dust
   within the area was brought within the PEL (Ex. C-2).

5. Respondent did not remonitor the second floor drawing room
   because of a change of work schedule which abolished the third work period (Tr. 137).

6. In June 1984, industrial hygienists from OSHA conducted cotton dust sampling of the
   second floor drawing room, carding and warping areas. The carding and warping areas showed
   cotton dust levels within permissible limits (Ex . R-2, R-3; Tr . 72-78) .

7. Sampling in the drawing room obtained average cotton dust
   levels of 455.5 ug/m 3 The vertical elutriators gave samples as follows (Ex.
   C-5; Tr. 41, 62):

1 470 ug/m 3 #3 450 ug/m 3

2 455 ug/m 3 #4 448 ug/m 3

8. Studies by industry and university researchers have shown
   variations in findings of cotton dust samples using vertical elutriators. No sampling and
   analytical error (SAE) factor has been established by OSHA, but OSHA generally authorized
   a citation for violation if the sampling results exceed the PEL by 25 percent (Ex. R-4;
   Tr. 84-85, 95).

9. OSHA personnel carefully set up the equipment, and handled,
   processed and weighed the cotton dust samples so that the results obtained were
   substantially accurate and reliable (Tr. 24-41, 54-62, 88-92, 103-105, 107, 111, 180-182,
   187).

10. Olden Blackwell, the drawing operator, was exposed to
    cotton dust approximately 2.275 times the 200 ug/m3 permitted by standards at � 1910.1043
    (c) (1).

11. Employee Olden Blackwell took a 30-minute lunch break and
    wore a respirator for approximately 9 minutes. Considering the level of cotton dust in the
    room, an employee would have to wear a respirator between 5 and 5 1/2 hours to be exposed
    to dust levels within permissible limits (Ex. C-7 p. 40-41; Tr. 50, 109-110).

CONCLUSIONS OF LAW

1. Respondent is subject to the Act and this proceeding.

2. Respondent knew or with the exercise of reasonable diligence
   could have known of the hazardous conditions.

3. Respondent violated 29 C.F.R. � 1910.1043(c)(1) and 29
   C.F.R. � 1910.1043(f)(1)(iii) under circumstances constituting a serious violation of the
   Act.

4. A penalty of $300 is appropriate.

ORDER

1. Items 1a and 1c of the serious citation are affirmed.

2. Item 1b is vacated.

3. A penalty of $300 is assessed.

Dated this 16th day of July, 1985.

JOE D. SPARKS

Judge

FOOTNOTES:

[[1/]] Chairman Foulke did not participate in this decision.

[[2/]] Since the citation in this case was issued, the
Secretary has extensively revised the cotton dust standard. See 29 C.F.R. � 1910.1043,
effective February 11, 1986; 50 Fed. Reg. 51120, 51173 (1985); 51 Fed. Reg. 24325 (1986);
54 Fed. Reg. 24334 (1989).

[[3/]] Milliken argued, in its review brief, that the Secretary
failed to prove noncompliance with the cited standard because the vertical elutriator is
an instrument of unproven reliability. Milliken contended that there is no sampling and
analytical error ("SAE") factor that is recognized as being reliable for
vertical elutriators. It claimed that the Secretary's decision to assign a 25% SAE factor
to her sampling with vertical elutriators was arbitrary. Because the vertical elutriator
is the only device specifically mentioned by the cited standard as appropriate for
measuring cotton dust concentrations, Milliken's arguments appeared to be challenging the
validity of the cotton dust standard.

In response to this argument, the Secretary moved for the
admission of certain documents in an effort to establish that Milliken was barred from
attacking both the reliability of the vertical elutriator and the validity of the cotton
dust standard. However, in its reply brief, Milliken stated that it "does not
challenge the validity of the cotton dust standard." Instead, it "only demands
that the Secretary honestly and accurately measure cotton dust concentrations .... "
It further argues that to "meet its burden of proof ... the Secretary must
demonstrate that the vertical elutriator has been accurately calibrated and cotton dust
samples have been properly taken." Because Milliken in its reply brief has abandoned
its challenge to the validity of the cotton dust standard, we conclude that this issue is
no longer before us, and the Secretary's motion to admit documents seeking to bar
Milliken's challenge to the validity of the standard is accordingly denied.

[[4/]] In a matter of weeks after the Secretary completed her inspection, Milliken had
installed engineering controls in its second floor drawing room. By August of 1984, when
Milliken next monitored for cotton dust levels in the room, the results averaged a
permissible 96 ug/m 3 .

[[5/]] At the time of the alleged violation, see note 2 supra, sections 1910.1043(d)(2)
and (3)(i) provided:

� 1910.1043 Cotton dust.

(d) Exposure monitoring and measurement--

(2) Initial monitoring, Each employer who has a place of employment in which cotton
dust is present, shall conduct monitoring by obtaining measurements which are
representative of the exposure of all employees to airborne concentrations of lint-free
respirable cotton dust over an eight-hour period. The sampling program shall include at
least one determination during each shift for each work area.

(3) Periodic monitoring. (i) The employer shall repeat
the measurements required by paragraph (d)(2) of this section at least every six months.

[[6/]] At the time of the inspection, this standard provided:

� 1910.1043 Cotton dust.

(f) Use of respirators --(1) General. Where the use of respirators is
required under this section, the employer shall provide, at no cost to the employee, and
assure the use of respirators which comply with the requirements of this paragraph (f).
Respirators shall be used in the following circumstances:

(iii) In work situations where feasible engineering and work practice controls are not yet
sufficient to reduce exposure to or below the permissible exposure limit[.]

[[1/]] Section 1910.1043(c)(1) of 29 C.F.R. states as follows:

(c) Permissible exposure limits. (1) The employer shall
assure that no employee who is exposed to cotton dust in yarn manufacturing is exposed to
airborne concentrations of lint-free respirable cotton dust greater than 200 ug/m 3
mean concentration, averaged over an eight-hour period, as measured by a vertical
elutriator or a method of equivalent accuracy and precision.

[[2/]] Section 1910.1043(f)(1)(iii) of 29 C.F.R. states as
follows:

(f) Use of respirators --(1) General. Where the
use of

respirators is required under this section, the employer shall provide, at no cost to the
employee, and assure the use of respirators which comply with the requirements of this
paragraph (f). Respirators shall be used in the following circumstances:

(iii) In work situations where feasible engineering and work
practice controls are not yet sufficient to reduce exposure to or below the permissible
exposure limit; and

[[3/]] The two alleged violations of the cited standards were combined into a single item
for which one penalty was proposed. A third subitem alleging a violation of 29 C.F.R. �
1910.1043(e)(1) was dismissed at the hearing (Tr. 7). Respondent moved to dismiss subitem
1c which alleged a failure to wear a respirator pursuant to 29 C.F.R. �
1910.1043(f)(1)(iii) as redundant and a duplication of the charge of violating 29 C.F.R.
� 1910.1043(c)(1) alleged in subitem 1a. It is noted, however, that the standard places a
separate obligation upon respondent and in any event respondent is not prejudiced by the
citation as the two subitems were combined into a single alleged violation. The motion to
dismiss is denied.

[[4/]] Following its own testing, Milliken contracted with an
outside firm to make engineering changes; but there is no indication that the work
actually began in the drawing room prior to the inspection by OSHA (Tr. 137 155). After
the installation of engineering controls, the drawing room was retested in August 1984 and
showed average cotton dust levels of 96 ug/m 3 (Tr. 176)