On April 22, 1986, the Commission issued a conditional order affirming the

judge's dismissal order unless the Secretary requested a remand within 30 days. The

Secretary 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 proceed

further with this case. Therefore,this case is now a final order as of the date of

this order.




Dated: MAY 2 3 1986




OSHRC Docket No. 78-2307


Before:  BUCKLEY, Chairman; RADER and WALL, Commissioners.

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  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, the principal issues on review involve the interpretation and application of the inert or nuisance dust provision of the mineral dust standard.[[1]]  Also involved in this case is a motion by the Secretary to amend his complaint.  We affirm the judge's disposition of the inert or nuisance dust allegations, but grant the Secretary an opportunity to request a remand for a ruling on his motion to amend.

Krause Milling Company has a workplace in Milwaukee, Wisconsin, where it is engaged in corn and grain milling and related activities.  Following an inspection of that workplace on April 12-14, 1978, OSHA issued a citation alleging that Krause Milling had failed to implement administrative or engineering controls to reduce the exposure of employees to "airborne levels of total particulate" in excess of the levels permitted by the inert or nuisance dust provision of the mineral dust standard.  The employer contested the citation and the case was scheduled 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."  Krause Milling presented three arguments in support of its motion.  First, it argued that "corn dust, as an organic, non-inert substance, does not fall within the coverage of the materials listed in 'Table Z-3--Mineral Dusts'. . . ."[[2]] Second, it argued that the standard as interpreted by the Secretary is unconstitutionally vague. Finally, it asserted that the Secretary had failed to follow proper legal procedures, thereby depriving it of due process, in reversing an earlier policy position that limited enforcement of the inert or nuisance dust provision to mineral nuisance dusts.[[3]]

The scheduled hearing in the case accordingly was devoted to an oral argument on Krause Milling's motion to dismiss.  At the end of the hearing, Judge Riehl took the motion under advisement, giving the parties a sixty-day period to file any further submissions in connection with the motion.  Ten weeks after the oral argument, the Secretary filed a motion to amend his complaint.  The motion sought three changes in the pleadings.  First, the Secretary set forth an alternative legal theory, that is, if the cited conditions are not regulated by the mineral dust standard, 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 the alleged violation from nonserious to serious.  Finally, although the Secretary previously had not requested any penalty, he now proposed that a penalty of $210 be assessed.  Krause Milling opposed the Secretary's motion.

In his decision, Judge Riehl granted Krause Milling's motion to dismiss, agreeing with all three of the arguments presented by the employer in support of its motion.  The judge did not rule on the Secretary's motion to amend.  In fact, he made no reference to it. The Secretary subsequently sought and obtained review on two issues:  (1) whether the judge erred in granting Krause Milling's motion to dismiss for failure to state a claim upon which relief can be granted and (2) whether the judge erred in failing to rule upon the Secretary's motion to amend his complaint.

In Bunge Corp., we concluded that the inert or nuisance dust provision does not apply to grain dust because it is part of a standard that applies only to mineral dusts.  We further concluded that adoption of the Secretary's contrary interpretation of the standard would deprive employers of their due process right to fair notice of the standard's requirements.  Judge Riehl reached these same conclusions here.  Accordingly, we affirm the judge's granting of the motion to dismiss on these grounds.  We therefore need not reach the third argument raised by Krause Milling in support of its motion, that is, that the Secretary failed 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 case without ruling on his motion to amend.  However, considering the age of the case and the fact that no evidence has yet been heard, it may be that the Secretary no longer wishes to proceed on his alternate theory.  Accordingly, we enter a conditional order affirming the judge's dismissal order in this case unless, within 30 days, the Secretary files a request that the case be remanded.  Upon request, the case will be remanded for a ruling on the Secretary's motion to amend, and for any further proceedings that may be necessary as a result of that ruling.


Ray H. Darling, Jr.
Executive Secretary

DATED:  APR 22, 1986

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).


[[1]] The term "mineral dust standard" refers to various related provisions of 29 C.F.R. 1910.1000 that, taken together, require employers to implement protective measures when their employees are exposed to mineral dust levels that exceed any of the exposure limits listed in Table Z-3 of 1910.1000.  "Inert or nuisance dust" is one of the listed substances that is regulated under the mineral dust standard.  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-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.

(c) Table Z-3:  An employee's exposure to any material listed in table Z-3, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limit given for that material in the table.

Substance Mg/M3
* * *
Inert or Nuisance Dust:
Respirable fraction ...... * 5 mg/M3

Total dust ............... * 15mg/M3

(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible.   When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants 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 his citation and complaint had been corn dust.  The Secretary also admitted that corn dust is an organic material, that it is not inert, and that it is not a mineral.

[[3]] This claim was also based on the Secretary's responses to the request for admissions.  The Secretary admitted that two memoranda and a program directive had been written by OSHA personnel concerning the scope of the inert or nuisance dust provision.  On June 30, 1977, C.R. Holder, Assistant Regional Administrator for Technical Support, stated in a memorandum that the provision could only be applied to mineral nuisance dusts because Table Z-3 is captioned Mineral Dusts."  On July 13, 1977, Richard P. Wilson, Deputy Director, Federal Compliance and State Programs, wrote in a memorandum that the position taken by C.R. Holder was correct.  On February 2, 1978, Wilson issued OSHA Program Directive #300-11 in which he cancelled his July 13 memorandum and declared that organic non-mineral dusts are included within the coverage of the inert or nuisance dust provision of the mineral dust standard.