SECRETARY OF LABOR,
Complainant,

v.

OHIO-SEALY MATTRESS MANUFACTURING Co.,
Respondent.

OSHRC DOCKET NO. 79-5600

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

The Secretary of Labor issued a citation alleging that between August 22 and September 7, 1979, Ohio-Sealy Mattress Manufacturing Company violated the air contaminant standard at 29 C.E.R. § 1910-1000. The standard requires that feasible engineering or administrative controls be implemented and that personal protective equipment be used when average airborne concentrations of raw cotton dust reach a certain level. Ohio-Sealy argues that the citation should be vacated on the grounds that: (1) the standard was no longer in effect when the alleged violation occurred; or (2) Ohio-Sealy lacked fair notice that the standard was in effect. Administrative Law Judge Patton rejected Ohio-Sealy's argument. The Commission granted a petition for interlocutory appeal. It is concluded that the standard was in effect and that Ohio- Sealy had fair notice that it was in effect. Accordingly, the judge's ruling is affirmed and the case is remanded for a hearing on the merits.

I

A

The Secretary alleged that Ohio-Sealy had exceeded the exposure limit for raw cotton dust in Table Z-1 of section 1910.1000 and had violated 29 C.F.R. § 1910.1000(a)(2) and (e). These provisions, which shall be referred to as "the old cotton dust standard," were first adopted under the Walsh-Healey Public Contracts Act, 41 U.S.C. §§ 35-45; they were adopted in 1971 as an occupational safety and health standard under 29 U.S.C. § 655(a), section 6(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").[[1/]] The old standard states in part:

§ 1910.1000 Air contaminants.

An employee's exposure to any materials listed in table Z-1 . . . of this section shall be limited in accordance with the requirements of the following paragraphs of this section.

(a) Table Z-1:

* * *

(2) Other materials--8-hour time weighted averages. An employee's exposure to any material in table Z-1 . . . in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table.

* * *

(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....

The 8-hour time weighted average given by Table Z-1 for "cotton dust (raw)" is one milligram per cubic meter of air (1 mg./m3), which is equivalent to 1000 micrograms per cubic meter (ug./m3). Item 1B of the citation alleged a violation of section 1910.1000(a)(2) in that employees were exposed to average airborne concentrations of raw cotton dust greater than the level permitted by Table Z-1. Item 1C of the citation alleged a violation of section 1910.1000(e) for failure to determine and implement feasible administrative or engineering controls. Item 1A alleged that Ohio-Sealy did not establish and maintain a respiratory protection program, contrary to tie requirements of 29 C.F.R. § 1910.134(a)(2). Raw cotton dust levels were alleged to have been measured at 4646, 1873 and 1155 ug./m3.

B

The arguments of Ohio-Sealy and the amici[[2/]] turn on events surrounding the Secretary's adoption of the new cotton dust standard. On June 23, 1978, the Secretary published a new cotton dust standard, section 1910.1043, and announced an effective date of September 4, 1978. 43 Fed..Reg. 27,350 (1978). The new standard required employers to take various measures such as monitoring, engineering and work practice controls, respiratory protection, medical surveillance and employee education and training. Within four years, employers were required to meet the applicable permissible exposure limit ("PEL") by implementing feasible engineering and work practice controls. Sections 1910.1043(e), (m)(2)(ii), as published at 43 Fed.,Reg. 27,395 and 27,398. The new standard prescribed three permissible exposure levels: 200 ug./m3 for yarn manufacturing (which includes all textile operations except slashing and weaving); 750 ug./m3 for slashing and weaving; and 500 ug./m3 for all other operations, including non-textile operations such as mattress manufacturing. Section 1910.1043(c). The Secretary did not consider the difference between the new standard's PEL for non-textile operations (500 ug./m3 ) and the old standard's PEL (1000 ug./m3) to represent an upgrading of protection for non-textile employees. The new standard regulates only the "lint-free respirable" portion of all workplace dust[[3/]] and the old standard regulated all workplace dust.[[4/]] Accordingly, the Secretary concluded that the new standard's PEL would be "roughly equivalent" in non-textile workplaces to the limit set by the old standard. 43 Fed. Reg. at 27,361.

The Secretary also announced the addition of the following footnote to the entry for "cotton dust (raw)" in Table Z-1 of the old standard:

This standard applies in cotton yarn manufacturing until compliance with § 1910.1043(c) and (e) is achieved.

Id. at 27,394. (Subsection (c) of the new standard contains the PELs; subsection (e) requires that engineering and work practice controls be used to reach the applicable PEL).

The Secretary set September 4, 1978 as the effective date for the new standard. Id. at 27,350. Had the new standard gone into effect on September 4, 1978, a non-textile employer would have been required to: initially monitor employee exposure to cotton dust "as soon as possible but no later than March 4, 1979," section 1910.1043(m)(2)(i); complete initial employee education and training "as soon as possible but no later than December 4, 1978," section 1910.1043(m)(2)(vii); provide and assure the use of respirators no later than October 4, 1978, section 1910.1043(m)(2)(iv); employ work practices required by 1910.1043(g) no later than December 4, 1978, section 1910.1043(m)(2)(v); complete medical surveillance of employees no later than September 4, 1979, section 1910.1043(m)(2)(vi); prepare a compliance program for implementing engineering and work practices controls required by section 1910.1043(e) no later than September 4, 1979, section 1910.1043(m)(2)(iii); and implement those engineering and work practice controls by September 4, 1982. Section 1910.1043(m)(2)(ii).

After the new standard was published, the Secretary received a request for an administrative stay of the new standard from two of the amici curiae before us, the National Cotton Batting Institute and the Textile Fibers and By-Products Association. The two trade associations brought to the Secretary's attention a draft report of a recent study on the magnitude of the dangers posed by cotton dust in mattress plants. On September 1, 1978, three days before the new standard was to go into effect, the Secretary suspended the effective date of the new standard as to certain non-textile industries, including mattress manufacturing, until the study was reviewed. 43 Fed. Reg. 39,087 (1978).

Several national trade associations, including one of the amici before us, the National Association of Bedding Manufacturers ("NABM"), of which Ohio-Sealy is a member, as well as representatives of affected employees, petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the new standard. On October 20, 1978, the court granted a motion to stay the "entire" new standard until the court issued a decision on the merits. On November 1, 1978, the court severed all petitioners affected by the Secretary's suspension of the new standard as a result of the administrative stay. The five severed petitions, including NABM's petition, were reconsolidated under the name NABM v. Marshall, No. 78-1784.

The court's subsequent decision upholding the new standard as to other petitioners did not dispose of the NABM case. See AFL-CIO v. Marshall, 617 F.2d 636, 634 n. 1 (D.C. Cir. 1979), aff'd in part and rev'd in part sub nom. American Textile Manufacturers Institute v. Donovan, 452 U.S. 490 (1981). On March 30, 1982, at the request of the Secretary, the District of Columbia Circuit remanded the record in the NABM case to the Secretary and ordered that he report on his reconsideration of the record at 120--day intervals. Thus, there has not been a decision by the court on the merits and the court's stay of the new standard remains in effect as to non-textile employers.

On January 26, 1979, the Secretary lifted the administrative suspension and announced that the new standard would become effective on March 4, 1979. 44 Fed..Reg. 5,438-5,440 (1979). The Secretary also noted that although his "notice reinstates the application of the [new] cotton dust standard the District of Columbia Circuit had stayed the effective date of the new standard pending a decision on the merits. He therefore stated that the lifting of the administrative stay would not affect certain non-textile industries, including mattress manufacturing, while the judicial stay is in force.
On September 13, 1979, the Secretary issued this citation to Ohio Sealy, alleging that violations of the old standard occurred between August 22, 1979, and September 7, 1979.

II

Dismissal of this citation is sought on the grounds that the new cotton dust standard amended and superseded the earlier standard originally promulgated in 1971 and that citation for a violation of the old standard is unauthorized. Ohio-Sealy asserts that the Secretary, as part of the promulgation of the new standard, revoked the old standard as to nontextile industries by limiting its applicability to the varn manufacturing industry. Ohio-Sealy also maintains that any enforcement of the old standard in the non-textile industries must be preceded by notice of the standard's applicability to these industries because the new standard had become enforceable in the textile industry until it was Judicially stayed on October 20, 1978. Furthermore, Ohio-Sealy argues that any decision to reconstitute the old standard and apply it to non-textile employers requires formal action by the Secretary.

A

Under section 6(b) of the Act "[t]he Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard . . . ." 29 U.S.C. § 655(b). See generally Industrial Union Dep't, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980) (benzene standard); American Textile Manufacturers Institute v. Donovan, 452 U.S. 490 (1981) (cotton dust standard). In order to revoke a standard the Secretary must publish a proposed rule in the Federal Register, allow 30 days for written comments and a public hearing if requested, and then decide within 60 days whether the proposed revocation should take effect. 29 U.S.C. §§ 665(b)(2), (3). (4); Synthetic Organic Chemical Manufacturers Ass'n v. Brennan, 506 F.2d 385, 388-89 (3d Cir. 1974), cert. denied, 420 U.S. 973, 423 U.S. 830, reh'g denied, 423 U.S. 886 (1975); see Industrial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467, 470-71 (D.C. Cir. 1974); Florida Peach Growers Ass'n v. U.S. Dep't of Labor, 489 F.2d 120, 124 (5th Cir. 1974). Moreover, the Commission has made it clear that the same rulemaking proceedings required for adoption of a standard are also required for its modification. See United States Steel Corp., 77 OSAHRC 12/C3, 2 BNA OSHC 1343, 1974-75 CCH OSHD ¶19,047 (Nos. 2975 & 4349, 1974) (alternate holding); Koppers Co., Inc., 77 OSAHRC 44/A4, 2 BNA OSHC 1354, 1974-75 CCH OSHD ¶19,063 (No. 3449, 1974).

Neither the preamble nor the ordering clause of the new cotton dust standard contains any language expressly revoking the old cotton dust standard.[[5/]] In fact, Table Z-1 of section 1910.1000 retains the permissible exposure level for cotton dust originally promulgated in 1971. This contrasts with the deletion of permissible exposure levels from the tables of 29 C.F.R § 1910.1000 when the Secretary has promulgated a new standard for a specific toxic substance and intends the new standard to have universal application. Eg., Occupational Exposure to Inorganic Arsenic, 43 Fed. Reg. 19,584, 19,624 (1978) (deletion of entries for inorganic arsenic from Table Z-1); Occupational Exposure to Acrylonitrile, 43 Fed. Reg. 45,762, 46,809 (1978) (deletion of acrylonitrile entry from Table Z-1); Occupational Exposure to Lead, 43 Fed. Reg. 52,952, 53,007 (1978) (deletion of permissible exposure levels for lead and its inorganic compounds from Table Z-2); Emergency Temporary Standard for Exposure to Vinyl Chloride, 39 Fed. Reg. 12,342, 12,343 (1974) (deletion of vinyl chloride entry from Table G-1);[[6/]] Standard for Exposure to Asbestos Dust, 37 Fed. Reg. 11,318, 11,319-20 (1972) (deletion of asbestos entry from Table G-3: Mineral Dusts).

B

Despite the absence of any express revocation in the newly promulgated standard, Ohio-Sealy argues that the preamble to the new standard indicates that the Secretary intended to revoke the old standard as to its industry regardless of whether the new standard actually became effective. Therefore the issue is whether, in the absence of an express revocation, there was an implied revocation conditioned on the effectiveness of the new standard or an implied revocation not conditioned on the effectiveness of the new standard.

Well-settled rules of interpretation provide the basis for analyzing this interpretive issue. In the exercise of the Commission's adjudicatory authority, the same rules of interpretation are applicable to administrative regulations and statutes. See Rucker v. Wabash Railroad Co., 418 F.2d 146, 149 (7th Cir. 1969). See generally 1A Sutherland, Statutes and Statutory Construction § 31.06 (4th ed. 1972) (C. Sands, ed.). In this case, both the old and new standards literally apply to cotton dust exposure in the non-textile industries.

In confronting a similar problem involving two statutes governing wildlife refuges, the Supreme Court recently stated:

[W]e decline to read the statutes as being in irreconcilable conflict without seeking to ascertain the actual intent of Congress. Our examination of the legislative history is guided by another maxim: "repeals by implication are not favored," Morton v. Mancari, 417 U.S. 535, 549 (1974) quoting Posadas v. National City Bank, 296 U.S. 497, 503 (1936).

Watt v. Alaska, 101 S.Ct. 1673, 1678 (1981). The Court continued:

"The intention of the legislature to repeal must be 'clear and manifest.'" United States v. Borden Co., 308 U.S. 188,198 . . . (1939) quoting Red Rock v. Henry, 106 U.S. 596, 602 . . . (1882). We must read the statutes to give effect to each if we can do so while preserving their sense and purpose. Mancari, supra, 417 U.S., at 551; see Haggar Co. v. Helvering, 308 U.S. 389, 394 . . . (1940).

101 S.Ct. at 1678; see also St. Martin Evangelical Lutheran Church v. South Dakota, 101 S.Ct. 2142, 2152 (1981). An irreconcilable conflict between earlier and later legislation is never presumed. Instead, a consistent and harmonious interpretation is preferred, particularly when the effect of the later action on the earlier legislation is doubtful. Accordingly, the presumption against implied repeal must be overcome by a "clear and manifest" showing by the party claiming the revocation. Watt v. Alaska supra; see generally 1A Sutherland, supra, at § 23.10. Application of this presumption is not dependent on whether the revocation is conditional or unconditional. This presumption is reinforced when no express revocatory action has been taken under statutory authority expressly providing for it. See 29 U.S.C. § 655(b); Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1111 (7th Cir. 1982).

Under the facts of this case, this presumption has not been overcome. Obviously, an orderly and harmonious transition between the old and new standards was intended by the Secretary. In the opening paragraph of the new cotton dust standard, the Secretary declared: "To provide continued protection for employees until the provisions of the new standard become effective, the requirements pertaining to cotton dust currently contained in § 1910.1000 Table Z-1 remain in full force and effect until § 1910.1043 becomes effective." 43 Fed. Reg. 27,350 (Emphasis added). The new standard specifically applies to both the textile and non-textile industries. See 43.Fed. Reg. 27,360-66 (1978).

The preamble contains other expressions of the Secretary's intent to provide continued protection for employees in the non-textile industry as well as the textile industry. For example:

OSHA has reason to believe that 500 ug/m3 is roughly equivalent to 1.0 mg/m3 measured by an OSHA personal sampler or high volume sampler in the spectrum of non-textile workplaces. Thus, the new standard is about as protective of health as the old standard, and OSHA would require much more definitive data than has been presented to justify a relaxation of protection.

OSHA also notes that Dr. Merchant testified that in his opinion a 500 ug/m3 level was an appropriate one for the non-textile industry . . . and that other witnesses stated that a low level was needed in non textile operations.

Id. at 27,361 (citations omitted). In discussing the requirements of respiratory protection during the initial monitoring period under the new standard, OSHA stated, "The agency has concluded that employees should be protected from exposure to cotton dust throughout this period rather than waiting for the results of initial monitoring." Id. at 27,386.

Ohio-Sealy argues that two passages in the Federal Register indicate that the Secretary contemplated unconditional abandonment of the old standard with respect to non-textile workers. One passage is an amendment to the old standard by the addition of the following footnote:

This standard [for cotton dust (raw)] applies in cotton yarn manufacturing until compliance with § 1910.1043(c) and (e) [of the new standard] is achieved. 29 C.F.R. § 1910.1000, Table Z-1. Ohio-Sealy argues that the old standard would not apply to it after September 3, 1978, because it is not engaged in cotton yarn manufacturing. The express language of the footnote simply indicates a transition between the old and new standards for the cotton yarn manufacturing industry. During the 4 year period allowed under the new standard for the development of engineering and work practice controls to achieve compliance with the 200 ug/m3 permissible exposure level, the permissible exposure level of 1000 ug/m3 continues to apply[[7/]] For the cotton yarn manufacturing industry, OSHA has considered the unique problems of this specific industry and exercised its discretion to delay the requirements for engineering and work practice controls specified by the new standard. See United Steelworkers of America v. Marshall, 647 F.2d 1189, 1310 (D.C. Cir. 1980). Although this footnote is specifically addressed to cotton yarn manufacturing, Ohio-Sealy argues that the Commission must infer that the footnote signifies a revocation of the old standard as to non-textile employers without regard to the fate of the new standard. That this inference cannot be drawn is clear from the following passage in the preamble relied on by Ohio-Sealy:

The current [old] standard, however, will not continue in effect . . . in the non-textile segment of the industry after the new cotton dust standard becomes effective. As to non-textiles, case law developed from efforts to enforce the current standard has generally been adverse. OSHA has concluded therefore, that the continued application of the current standard to these employers would serve no useful purpose.

43 Fed. Reg. at 27,381. This text explains the compliance responsibility of the non-textile industry during the four- year period established for the implementation of the technological controls required by the new standard. The phrase "after the new cotton dust standard becomes effective" is central to the interpretation of this paragraph. It makes the operative language-- "will not continue in effect"-- conditional on the "effective" status of the new standard. [[8/]] The suspension of the old standard is predicated on a future contingency.[[9/]]

The Secretary's rationale for the suspension of the old standard described in the first sentence of the paragraph is expressed in the last two sentences of the paragraph describing the conditional revocation. The Secretary announced that he would forego further enforcement efforts under the old standard based on two interrelated considerations -- the Secretary's estimate of the probability of success in enforcing the old standard under the Commission's "adverse" case law coupled with the prospective enforcement of the new standard. As a consequence, the Secretary reasonably concluded that continued enforcement of the old standard during the four year period commencing with the effective date of the new standard would serve "no useful purpose."

However, on the application of amici, the Secretary stayed the effective date of the new standard as to certain non-textile industries, including mattress manufacturers, on September 1, 1978 -- three days before the effective date of the new standard. 43 Fed. Reg. 39,087 (1978).[[10/]] Accordingly, the condition precedent to revocation never occurred.

Certainly, the preamble is not free from ambiguity. However, ambiguity does not equate with implied, unconditional revocation. When the standard and the preamble are treated as an integrated whole and interpreted in the context of the remedial purpose of this statute, no "clear and manifest" intent to unconditionally revoke the old standard on September 4, 1978, can be found.[[11/]]

C

In addition to the administrative stay issued by the Secretary on September 1, 1978, the United States Court of Appeals for the District of Columbia Circuit entered a judicial stay of the entire standard on October 20, 1978 at the request of industry petitioners including the National Association of Bedding Manufacturers, an amicus curiae in this case. That stay was lifted as to the textile industry following judicial review. AFL-CIO v. Marshall, Nos. 78-1562 etc. (D.C. Cir. January 11, 1980) (order lifting judicial stay), enforcing 617 F.2d 636 (1979), aff'd in part and rev'd in part sub nom. American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490 (1981). However, the judicial stay has not been lifted with respect to bedding manufacturers. Thus, the new standard became effective in the textile industry for approximately 6 weeks in 1978 and again in 1980 following the judicial decision in 1979, 45 Fed. Reg. 12,416 (1980). However, the new standard has never become effective for Ohio-Sealy's non-textile industry and the court was presumably aware that the preamble conditioned the revocation of the old standard on the effective date of the new standard.[[12/]]

Ohio-Sealy argues that the judicial stay of the new standard operates only with respect to the regulatory requirements of the new standard and not the implied revocation of the old standard. In other words, the implied revocation was severable from the remainder of the standard and the judicial stay restrained only the enforcement of the new standard, not the implied revocation of the old standard. This analysis overlooks several important considerations. First, the revocation of the old standard was pre-conditioned on the enforceability of the new standard. Thus, the implied revocation is not severable from the effectiveness of the new standard. See American Petroleum Institute v. OSHA, 581, F.2d 493, 496 n.6, 498 (5th Cir. 1978), aff'd on other grounds sub nom.Industrial Union Dep't, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980). Second, a pre-enforcement judicial stay restores the status quo existing before the promulgation of the new standard and operates to "postpone the effective date of an agency action or to preserve status or rights" pending on judicial review. 5 U.S.C. § 705; Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 842 n.1, 844-45 (D.C. Cir. 1977); see American Hospital Ass'n v. Harris, 625 F.2d 1328 (7th Cir. 1980)(suit to enjoin operation of hospital regulations promulgated by U.S. Dep't of HEW); Morgan v. Fletcher, 518 F.2d 236, 239 (5th Cir. 1975)(suit to enjoin dismissal of federal employee). See generally L. Jaffe, Judicial Control of Administrative Action ch. 18 (1965). In this case, the status quo before the new standard would become effective included the continuing statutory obligation to comply with the old standard. Accordingly, the judicial stay of the new standard operates to continue the enforceability of the old standard.

D

Ohio-Sealy attempts to draw a distinction between the new standard's "effective date" and its "effectiveness" in the sense of its "enforceability." It reasons that: (1) the new standard's effective date was never stayed because the term "effective date" signifies the date that the Code of Federal Regulations is amended to reflect a new rule; (2) the CFR was amended; and (3) the only effect of the administrative and judicial stays was to suspend the enforceability of the new standard. To say that this argument elevates form over substance is to risk understatement. The term "effective date" refers to the date when a rule has a legal effect on rights and duties. As to non-textile employers, the new standard and the revocation of the old standard have never become effective.  In addition, the Federal Register Act makes codification in the CFR only prima facie evidence that a regulation is in effect. 44 U.S.C. §1510(e).[[13/]] Thus, the CFR publication does not negate the impact of the administrative and judicial stays on the effective date.

Similarly, Ohio-Sealy argues that because the 1978, 1979, and 1980 editions of the CFR reflect the addition of the footnote to Table Z-1 of the old standard regarding the cotton yarn manufacturing industry, it reasonably concluded that it was not required to comply with the old standard. Ohio-Sealy's argument is unconvincing. Although the new standard also appeared in these editions of the CFR, Ohio-Sealy does not claim that it believed it had to comply with the new standard. Ohio-Sealy obviously knew of the stays of the effective date of the new standard and therefore knew that the CFR did not reflect the new standard's legal status.

III

Ohio-Sealy and NABM also urge dismissal of the citation in this case on the ground that fair notice of the enforceability of the old standard was not provided because the "adverse case law" referenced in the preamble to the new standard precluded the old standard's applicability to the non-textile industry. [[14/]] Several Commission cases are cited in support of the asserted inapplicability of the old standard.

A

Initial reliance is placed on an administrative law judge's decision in Buckeye Cellulose Corp., 73 OSAHRC 36/A2, 1 BNA OSHC 3116, 1971-73 CCH OSHD ¶ 16,313 (No. 1919, 1973). However, this unreviewed judge's decision is without precedential value. Eg., Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD ¶ 20,387 (No. 4090, 1976). Furthermore, in Buckeye Cellulose Judge Patton noted testimony that "cotton linters" [[15/]] are used in the manufacture of mattresses and ruled that cotton linters are not covered by the old standard. 73 OSAHRC at 36/A13-A16. Judge Patton did not rule that all mattress manufacturers process only cotton linters or that their employees are never exposed to substances covered by the old standard. The judge had no occasion to rule on these issues because the employer in that case was a cellulose manufacturer, not a mattress manufacturer. Thus, the facts in Buckeye Cellulose are distinguishable from the facts in this case. Accordingly, the argument that Ohio-Sealy lacked notice of the applicability of the old standard to its mattress manufacturing facility based on the judge's decision in Buckeye Cellulose is without foundation.

The next cited authority is Traders Oil Mill Co., 75 OSAHRC 29/D9, 2 BNA OSHC 1508, 1974-75 CCH OSHD ¶19,216 (No. 2873, 1975). However, purely procedural grounds were the basis for the Commission's decision in that case. The Respondent had attached an affidavit to its motion for summary judgment stating that it was engaged solely in processing cottonseed and not in processing raw cotton in any manner. The Secretary did not file a counter-affidavit or present any contrary evidence at the hearing on the motion. Counsel for the Secretary merely stated that if a trial were held on the citation he would produce evidence in conflict with the affidavit. The Commission majority ruled that the judge properly refused to consider the Secretary's unsupported factual assertion in granting the Respondent's motion for summary judgment. The Commission stated:

Once an affidavit is filed showing that there is no triable issue, the adversary party must respond by counter-affidavit or otherwise present competent evidence to demonstrate that there is a triable issue. Complainant did not do this.

Consequently, we affirm the disposition ordered by the Judge.

2 BNA OSHC at 1509, 1974-75 CCH OSHD at p. 22,970. The Commission neither held nor intimated that the old standard was inapplicable to cottonseed processing. The reference to Buckeye Cellulose is merely a recitation of one of Respondent's bases for its motion for summary judgment. There is no reference to Buckeye Cellulose in the substantive holding or rationale of Traders Oil Mill. Thus, there is no substantive basis in Traders Oil Mill for the contention that the old standard was inapplicable. [[16/]]

In addition, the dissent in Traders Oil Mill makes it clear that the majority's decision is purely procedural. Commissioner Cleary
stated that summary judgment should not have been granted because "[t]here is plainly an issue of fact as to the nature of the dust in respondent's plant" warranting a hearing on the merits and the judge should have granted a continuance to permit the Secretary to file counter-affidavits. According to the dissent, the judge:

.should not have made this important decision turn on what amounts to a technicality. Possible exposure to the debilitating effects of cotton dust contamination requires no less. The Commission's protection of the public interest suggests that this be done. See Brennan v. OSHRC & John J. Gordon, 492 F.2d 1027, 1032 (2d Cir. 1974).

2 BNA OSHC at 1510, 1974-75 CCH OSHD at p. 22,971. Thus, Commissioner Cleary recognized that Traders Oil Mill turned on "what amounts to a technicality" -- the lack of sworn evidence by the Secretary at the motion hearing. If a factual hearing is required to determine the composition of the dust in a non-textile plant as correctly urged by the dissent in Traders Oil Mill, no less is required regarding Ohio-Sealy's non-textile plant. Indeed, it seems particularly implausible that the Secretary intended to immediately and unconditionally surrender an opportunity to prove that at least some non-textile operations generate raw cotton dust. Furthermore, the public interest in employee protection against excessive cotton dust exposure identified by the dissent in Traders Oil Mill is no less important in this case. [[17/]]

The argument regarding the substantive value of Traders Oil Milland Buckeye Cellulose is also inconsistent with the Commission's subsequent decision in Deering Milliken, Inc., 78 OSAHRC 1O1/A2, 6 BNA OSHC 2143, 1978 CCH OSHD ¶23,191 (No. 12597, 1978), aff'd, 630 F.2d 1094 (5th Cir. 1980). In Deering Milliken, issued almost a year before the citation in this case, the Commission relied on the testimony of Dr. Roach, the co-author of the byssinosis study that served as the scientific basis for the old standard.[[18/]] Dr. Roach testified that cotton dust includes cellulose fibers among other things. 6 BNA OSHC at 2146, 1978 CCH OSHD at p. 28,040 [[19/]] The Commission held that the old standard "is based on a measurement of total dust," 6 BNA OSHC at 2147, 1978 CCH OSHD at p. 28,040, and that the standard "is applicable to any work-place where cotton dust is present. Its applicability is not dependent on the materials or processes involved." 6 BNA OSHC at 2144 n.4, 1978 CCH OSHD at p. 28,038 n.4. This case put Ohio-Sealy squarely on notice that enforcement of the old standard was permissible in any workplace where cellulose fibers and the other components of cotton dust were present. Certainly, the Commission would have overruled the Trader's Oil Mill/ Buckeye Cellulose line of cases if they contradicted the substantive ruling in Deering- Milliken.[[20/]]

Moreover, the Fifth Circuit specifically rejected Deering Milliken's claim that it was not on reasonable notice that the old standard was a total dust standard. It pointed out that prior to citing Deering Milliken the Secretary had sought to enforce the old standard as a total dust standard, and that Congress specifically had in mind the hazards of exposure to all the dust generated by cotton processing when it passed the Act. 630 F.2d at 1103-5, citing S. Rep. No. 91-1282, 91st Cong., 2d Sess. 3. reprinted in 1970 U.S. Code Cong. & Ad. News 5177, 5179. "If there ever was any vagueness in the wording of the regulation, its history and the legislative intent behind its implementation as an OSHA mandate, coupled with the endorsement posture of the Secretary, dispelled that vagueness and rendered the meaning of section 1910.1000 clear."630 F-2d at 1105.

On this record, there is inadequate evidence to conclude that Ohio-Sealy lacked fair notice that the old standard was enforceable at its workplace. The due process clause of the fifth amendment requires that one be given fair notice of the requirements of the law. It does not require perfect notice. See Toy Manufacturers of America v. Consumer Products Safety Commission, 633 F.2d 70, 78 (2d Cir. 1980).

IV

In the exercise of rulemaking authority, the Secretary has sought to establish reasonable employer and employee expectations regarding the abatement of hazards resulting from employee exposure to cotton dust.  The standard promulgated in 1978 represents more than a decade of initiative to bring this serious health hazard under control. S. Rep. No. 91-1282, 91st Cong., 2d Sess. 3, reprinted in 1970 U.S. Code Cong. & Ad. News 5177, 5179; 36 Fed. Reg. 10523 (1971)(promulgation of old cotton dust standard); Nat'l Institute for Occupational Safety and Health, U.S. Dep't of Health, Educ. & Welfare, Criteria for a Recommended Standard Occupational Exposure to Cotton Dust (1974); Occupational Exposure to Cotton Dust: Final Standard, 43 Fed. Reg. 27350 (1978). See American Textile Manufacturers Institute v. Donovan, 101 S.Ct. 2478, 2483-88 (1981)(review of regulatory history). The Commission also establishes reasonable expectations through adjudicatory interpretations. In performing this statutory responsibility the Commission interprets standards to achieve the Congressional objectives underlying the Act. Brennan v. OSAHRC (Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974); McLean Trucking Co. v. OSAHRC, 503 F.2d 8 (4th Cir. 1974); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974). Gradual improvement of employee safety and health is anticipated under the statute as new standards build upon the advances of old standards. All earlier regulatory improvements are not risked every time there is a new regulatory advance. Furthermore, the Secretary may properly condition the modification of an old standard on the effectiveness of the gradual improvement to be achieved by a new standard.

This case is remanded for a hearing on the merits of the citation.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: APR 27 1983



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FOOTNOTES:

[[1/]] The history of the old standard is further described in the Commission and court decisions in Deering-Milliken, Inc., 78 OSAHRC 101/A2, 6 BNA OSHC 2143, 1978 CCH OSHD ¶ 23,191 (No. 12597, 1978), aff'd, 630 F.2d 1094 (5th Cir. 1980).

[[2/]] The amici curiae in this case are the National Cotton Batting Institute, the Textile Fibers and By-Products Association, the National Association of Bedding Manufacturers, the National Association of Furniture Manufacturers and the Wolf Corporation.

[[3/]] See the definitions of "cotton dust" and "lint-free respirable cotton dust" in § 1910.1043(b).

[[4/]] The Commission and the Fifth Circuit later adopted this view of the old standard in Deering-Milliken, note 1 supra.

[[5/]] Standards adopted under section 6(a) of the Act, such as the old cotton dust standard, remain enforceable until modified or revoked by a section 6(b) rule. Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1111 (7th Cir. 1982). In past revocations of these original standards, the Secretary has explicitly captioned the rulemaking action as a "revocation" and summarized the action with the following phrase: "[T]his final rule revokes . . . ." Selected General Industry Safety and Health Standards: Revocation, 43 Fed. Reg. 49,726 (1978). In addition, the preamble specifically identifies the standards or paragraph revoked by the promulgated rule, and indicates that "[t]he revocations listed herein shall be effective as of" a specific date. Eg., 43 Fed. Reg. 49,744. Finally, in the ordering clause following the preamble each revocation is numerically identified:
Accordingly, Part 1910 of 29 C.F.R. is amended as follows:
. . .
1. Paragraph (e)(3) of §1910.23 is revoked.
. . .
43 Fed. Reg. at 49,744-31 (general industry standards: 607 separate revocations and amendments) (emphasis added). Also 43 Fed. Reg. 49,764-67 (special industry standards: 321 separate revocations and amendments). See Proposed Revocation of Advisory and Repetitive Standards, 47 Fed. Reg. 23,477 (May 28, 1982).

[[6/]] Tables G-1 to G-3 were recodified as Tables Z-1 to Z-3 when § 1910.93 was recodified as § 1910.1000. 40 Fed. Reg. 23,072 (1975).

[[7/]] Section 1910.1000 prescribes an 8 hour time-weighted permissible exposure limit for raw cotton dust of no more than 1000 ug/m and the use of protective equipment is required if engineering and administrative controls are infeasible or inadequate. 29 C.F.R. § 1910.1000(e) incorporating by reference 29 C.F.R. § 1910.134. Section 1910.1043 contains an 8-hour time-weighted permissible exposure limit of 200 ug/m3 for cotton yarn manufacturing and allows employers 4 years to develop the necessary engineering and work practice controls. 29 C.F.R. § 1910.1043 (c)(1),(e). Compliance with that limit by means of respirators is enforceable thirty days after the effective date. 29 C.F.R. § 1910.1043(f)(2)(vi), (m)(2)(iv).

The amici argue that § 1910.1043 requires no limitations on employee exposure to cotton dust for employers other than cotton yarn manufacturers for four years, that is until the required compliance date for installing engineering and work practice controls under § 1910.1043(e). This assertion is inconsistent with various effective dates established for different requirements of the new standard. 29 C.F.R. § 1910.1043(m)(1), (m)(2)(i)-(vi) See also 29 C.F.R. § 1910.1043(c) ("permissible exposure limits" stated in the present tense), § 1910.1043(f) (continual use of respirators).

[[8/]] A non-conditional revocation could have been accomplished immediately on the promulgation of the new standard on June 23, 1978, because the termination of compliance responsibilities by a new standard requires no delay. In contrast, delayed effectiveness is required when employers must familiarize themselves with new regulatory requirements and implement new controls under the new promulgated standard. See Society of Plastics Ind., Inc. v. OSHA, 509 F.2d 1301, 1311 (2d Cir.), cert. denied, 421 U.S. 992 (1975).

[[9/]] This is consistent with the rules of interpretation governing statutory amendments.- If the amendment is invalid, the original statute sought to be amended remains in effect, even if the amendment contains an express repeal of the original statute. See Frost v. Corporation Commission, 278 U.S. 515 (1929); Conlon v. Admaski, 77 F.2d 397 (D.C. Cir. 1935); Weissinger v. Boswell, 330 F.Supp. 615 (M.D. Ala. 1971). See Generally 1A Sutherland, Statutes and Statutory Construction, § 22.37 (4th ed. 1972).

[[10/]] The validity of a delayed effectiveness provision such as § 1910.1043(e) is dependent on the protection of employees during this interim period by OSHA standards already in effect. See United Steelworkers of America v. Marshall, 647 F.2d 1189, 1310 (D.C. Cir. 1980).

[[11/]] The Respondent and amici also rely on a post-promulgation notice in the Federal Register and argue that the Secretary is required to publish a notice that enforcement of the new standard has been suspended and enforcement of the old standard will continue. However, the Federal Register notice for these other industries was published because the preamble to the new standard may not adequately describe the basis for finding a "significant risk" to employees exposed to cotton dust in these industries. 45 Fed. Reg. 50,328, 50,329 (1980). The argument overlooks the fact that this notice is exclusively directed to two specific industries and states that it "does not affect the enforcement of the new standard in the textile manufacturing industry, as to which a determination has been made that the standard meets the Supreme Court's requirements [regarding significant risk], or in any non--textile industries other than classing and warehousing." Id. at 50,329. Moreover, Ohio-Sealy's argument assumes that if the old standard were revoked by the new standard, a Federal Register notice would be sufficient to reinstate the old rule without regard to the requirements of section 6(b) of the Act. Neither assumption is correct. See United States Steel Corp., 77 OSAHRC 12/C3, 2 BNA OSHC 1343, 1974-75 CCH OSHD ¶19,047 (Nos. 2975 & 4349, 1974) (alternate holding); Koppers Co., Inc., 77 OSAHRC 44/A4, 2 BNA OSHC 1354, 1974-75 CCH OSHD ¶19,063 (No. 3449, 1974). Finally, the Secretary reemphasized in this notice that it is "OSHA's express intent to provide continued protection to workers until the provisions of the new standard are fully effective and enforceable." 45 Fed. Reg. 50,329.

[[12/]] See also American. Petroleum Institute v. Secretary of Labor, 581 F.2d 493, 496 n.6, 498 (5th Cir. 1978), aff'd on other grounds sub nom. Industrial Union Dep't, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980).

[[13/]] 44 U.S.C. § 1510(e) states:

§1510 Code of Federal Regulations.

(e) The codified documents of the several agencies published in the supplemental edition of the Federal Register under this section [i.e., the CFR], as amended by documents subsequently filed with the Office and published in the daily issues of the Federal Register, shall be prima facie evidence of the text of the documents and of the fact that they are in effect on and after the date of publication.

[[14/]] A standard may be unenforceable because of its invalidity, e.g., Rockwell International Corp., 80 OSAHRC 118/A2, 9 BNA OSHC 1092,
1980 CCH OSHD ¶ 24,979 (No. 12470, 1980), its not yet being effective, American Smelting & Refining Co. v. OSHRC, 501 F.2d 504, 512-14
(8th Cir. 1974), and its inapplicability to the cited conditions, e.g., Stanbest Inc., 83 0SAHRC 10/D6, 11 BNA OSHC 1222, 1983 CCH OSHD ¶ 26,455 (No. 76- 4355, 1983).

[[15/]] Cotton linters are short raw cotton fibers that adhere to cotton seed after ginning. See Buckeye Cellulose Corp., 73 OSAHRC 36/A2, 36/A11-Al2 (No. 1919, 1973); Websters Third New Int'l Dictionary 1317 (1971).

[[16/]] The passing reference to Buckeye Cellulose is also explained by the fact that Traders Oil Mill Company is a subsidiary of Buckeye Cellulose Corporation. 2 BNA OSHC at 1510 n.2, 1974-75 CCH OSHD at p. 22,971 n.2. (Cleary, Commissioner, dissenting).

[[17/]] Spring Air Mattress Co., 74 OSAHRC 90/B12, 2 BNA OSHC 1416, 1974-75 CCH OSHD ¶919,146 (No. 1422, 1974), was decided on evidentiary grounds and the Commission expressly reserved decision on the Buckeye Cellulose issue in that case. Furthermore, the Fifth Circuit has concluded that the constitutionally sufficient notice afforded by the old standard was not vitiated by Spring Air Mattress Co. because the Commission's decision was not on the merits. 630 F.2d 1094, 1103-04 (5th Cir. 1980).

[[18/]] Roach & Schilling, A clinical and environmental study of byssinosis in the Lancashire cotton industry, 17 Br. J. Med. 1 (1960).

[[19/]] In Buckeye Cellulose the judge noted testimony that linter fibers as well as cotton fibers are cellulose. 73 OSAHRC at 36/A6. There was no evidence to the contrary.

[[20/]] We cannot agree with the Chairman that "Traders Oil Mill and Buckeye Cellulose had the apparent effect of exempting mattress manufacturers from the old standard." Neither Traders Oil Mill nor Buckeye Cellulose involved mattress manufacturers. Neither case purported to define the term "cotton dust (raw)" to exclude an entire class of employers without regard to the material actually used in its production process. Moreover, at this stage in the proceedings, no evidentiary record has been developed to show precisely what material is used inmattress manufacturing. In the absence of an authoritative definition of the term "cotton dust (raw)" or a Commission decision in which the term has actually been applied to a mattress manufacturer, Ohio-Sealy could not reasonably have concluded that mattress manufacturing was exempt. It may be that some stages of cotton plant processing do not generate raw cotton dust within the meaning of the old standard, but that is a question that poses legal and factual issues yet to be decided by the Commission.