“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR, Complainant, v. OSHRC DOCKET NO. 78-2307KRAUSE MILLING COMPANY, Respondent. ORDER\tOn April 22, 1986, the Commission issued a conditional order affirming thejudge’s dismissal order unless the Secretary requested a remand within 30 days. TheSecretary filed a response to the Commission’s conditional order dated May 12, 1986.In the Secretary’s response, the Secretary indicated that he did not want to proceedfurther with this case. Therefore,this case is now a final order as of the date ofthis order. FOR THE COMMISSION\/s\/\t\t\t\t\tEXECUTIVE SECRETARY\t\t\tDated: MAY 2 3 1986————————————————————————SECRETARY OF LABOR,Complainant,v.KRAUSE MILLING COMPANY,Respondent.OSHRC Docket No. 78-2307_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).This case is a companion case to _Bunge Corp_., OSHRC Docket Nos.77-1622, 78-0838 & 78-2213, issued this date. As in _Bunge_, theprincipal issues on review involve the interpretation and application ofthe inert or nuisance dust provision of the mineral dust standard.[[1]] Also involved in this case is a motion by the Secretary to amend hiscomplaint. We affirm the judge’s disposition of the inert or nuisancedust allegations, but grant the Secretary an opportunity to request aremand for a ruling on his motion to amend.Krause Milling Company has a workplace in Milwaukee, Wisconsin, where itis engaged in corn and grain milling and related activities. Followingan inspection of that workplace on April 12-14, 1978, OSHA issued acitation alleging that Krause Milling had failed to implementadministrative or engineering controls to reduce the exposure ofemployees to \”airborne levels of total particulate\” in excess of thelevels permitted by the inert or nuisance dust provision of the mineraldust standard. The employer contested the citation and the case wasscheduled for a hearing before former Commission Judge Vernon Riehl. Before the hearing, however, Krause Milling filed a motion to dismiss,under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for\”failure to state a claim upon which relief can be granted.\” KrauseMilling presented three arguments in support of its motion. First, itargued that \”corn dust, as an organic, non-inert substance, does notfall within the coverage of the materials listed in ‘Table Z-3–MineralDusts’. . . .\”[[2]] Second, it argued that the standard as interpretedby the Secretary is unconstitutionally vague. Finally, it asserted thatthe Secretary had failed to follow proper legal procedures, therebydepriving it of due process, in reversing an earlier policy positionthat limited enforcement of the inert or nuisance dust provision tomineral nuisance dusts.[[3]]The scheduled hearing in the case accordingly was devoted to an oralargument on Krause Milling’s motion to dismiss. At the end of thehearing, Judge Riehl took the motion under advisement, giving theparties a sixty-day period to file any further submissions in connectionwith the motion. Ten weeks after the oral argument, the Secretary fileda motion to amend his complaint. The motion sought three changes in thepleadings. First, the Secretary set forth an alternative legal theory,that is, if the cited conditions are not regulated by the mineral duststandard, they are governed by section 5(a)(1) of the Act, 29 U.S.C. ?654(a)(1), and Krause Milling was in violation of section 5(a)(1). Second, the Secretary attempted to change the classification of thealleged violation from nonserious to serious. Finally, although theSecretary previously had not requested any penalty, he now proposed thata penalty of $210 be assessed. Krause Milling opposed the Secretary’smotion.In his decision, Judge Riehl granted Krause Milling’s motion to dismiss,agreeing with all three of the arguments presented by the employer insupport of its motion. The judge did not rule on the Secretary’s motionto amend. In fact, he made no reference to it. The Secretarysubsequently sought and obtained review on two issues: (1) whether thejudge erred in granting Krause Milling’s motion to dismiss for failureto state a claim upon which relief can be granted and (2) whether thejudge erred in failing to rule upon the Secretary’s motion to amend hiscomplaint.In _Bunge Corp._, we concluded that the inert or nuisance dust provisiondoes not apply to grain dust because it is part of a standard thatapplies only to mineral dusts. We further concluded that adoption ofthe Secretary’s contrary interpretation of the standard would depriveemployers of their due process right to fair notice of the standard’srequirements. Judge Riehl reached these same conclusions here. Accordingly, we affirm the judge’s granting of the motion to dismiss onthese grounds. We therefore need not reach the third argument raised byKrause Milling in support of its motion, that is, that the Secretaryfailed to follow proper legal procedures in issuing Program Directive#300-11, thereby depriving Krause Milling of due process.We agree with the Secretary that the judge erred in dismissing the casewithout ruling on his motion to amend. However, considering the age ofthe case and the fact that no evidence has yet been heard, it may bethat the Secretary no longer wishes to proceed on his alternate theory. Accordingly, we enter a conditional order affirming the judge’sdismissal order in this case unless, within 30 days, the Secretary filesa request that the case be remanded. Upon request, the case will beremanded for a ruling on the Secretary’s motion to amend, and for anyfurther proceedings that may be necessary as a result of that ruling.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 22, 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] The term \”mineral dust standard\” refers to various relatedprovisions of 29 C.F.R. ? 1910.1000 that, taken together, requireemployers to implement protective measures when their employees areexposed to mineral dust levels that exceed any of the exposure limitslisted in Table Z-3 of ? 1910.1000. \”Inert or nuisance dust\” is one ofthe listed substances that is regulated under the mineral duststandard. The pertinent provisions are the following:? 1910.1000 _Air contaminants._An employee’s exposure to any material listed in table Z-1, Z-2, or Z-3of this section shall be limited in accordance with the requirements ofthe following paragraphs of this section.(c) Table Z-3: An employee’s exposure to any material listed in tableZ-3, in any 8-hour work shift of a 40-hour work week, shall not exceedthe 8-hour time weighted average limit given for that material in the table.TABLE Z-3 — MINERAL DUSTSSubstance \t\tMg\/M3* \t* \t*Inert or Nuisance Dust: \t\tRespirable fraction …… \t* \t5 mg\/M3Total dust …………… \t* \t15mg\/M3(e) To achieve compliance with paragraph (a) through (d) of thissection, administrative or engineering controls must first be determinedand implemented whenever feasible. When such controls are not feasibleto achieve full compliance, protective equipment or any other protectivemeasures shall be used to keep the exposure of employees to aircontaminants within the limits prescribed in this section. . . .[[2]] In response to a request for admissions filed by Krause Milling,the Secretary admitted that the \”total particulate\” referred to in hiscitation and complaint had been corn dust. The Secretary also admittedthat corn dust is an organic material, that it is not inert, and that itis not a mineral.[[3]] This claim was also based on the Secretary’s responses to therequest for admissions. The Secretary admitted that two memoranda and aprogram directive had been written by OSHA personnel concerning thescope of the inert or nuisance dust provision. On June 30, 1977, C.R.Holder, Assistant Regional Administrator for Technical Support, statedin a memorandum that the provision could only be applied to mineralnuisance dusts because Table Z-3 is captioned Mineral Dusts.\” On July13, 1977, Richard P. Wilson, Deputy Director, Federal Compliance andState Programs, wrote in a memorandum that the position taken by C.R.Holder was correct. On February 2, 1978, Wilson issued OSHA ProgramDirective #300-11 in which he cancelled his July 13 memorandum anddeclared that organic non-mineral dusts are included within the coverageof the inert or nuisance dust provision of the mineral dust standard.”