DEERING MILLIKEN, INC.

OSHRC Docket No. 12597

Occupational Safety and Health Review Commission

November 29, 1978

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Reg. Sol., USDOL

John P. Campbell, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

A December 13, 1976 decision of Judge James D. Burroughs is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). In his decision, the Judge found the respondent to be in violation of 29 C.F.R. 1910.1000(e) n1 and 1910.134. For the reasons set forth below, we affirm the Judge's decision.

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n1 The citation alleged a violation of this standard under its prior codification as 1910.93.

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Following an inspection of its Unity Plant in La Grange, Georgia, the respondent was charged with having failed to implement feasible engineering controls in the opening rooms and the waste house where employees were exposed to cotton dust levels in excess of the 1 mg/m3 permitted under Table Z-1 of 1910.1000(e). [*2] n2 The respondent was also alleged to have failed to provide and to require the wearing of personal respiratory protective equipment for the workers in the opening rooms as mandated by 1910.134 n3 and 1910.1000(e).

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n2 The standard provides in relevant part:

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.

(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. Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with 1910.134.

n3 1910.134 provides in pertinent part:

Respirators shall be provided by the employer when such equipment is necessary to protect the health of the employee.

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The bulk of the respondent's case was devoted to showing that the air sampling procedures used by the Secretary to measure the level of cotton dust were scientifically unreliable, and that the proposed engineering controls were not feasible. Before us, the respondent makes the same arguments it made before the Judge, and also contends that the Judge improperly resolved the conflicting evidentiary questions. In a lengthy, well-reasoned opinion Judge Burroughs analyzed and disposed of respondent's contentions. n4 In almost all respects the Judge's decision was comprehensive and thorough, and little purpose would be served by our restating the findings, conclusions and reasoning which he has already set forth so well. Additionally, where the evidence was conflicting, the Judge considered the entire record and gave specific reasons for making any credibility findings. Generally, the Commission will accept a Judge's evaluation of the credibility of witnesses. C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD para. 22,481 (No. 14249, 1978). The respondent's arguments do not persuade [*4] us that we should depart from this policy and accordingly we will accept the Judge's resolution of the conflicting evidentiary questions.

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n4 Judge Burroughs was confronted with the question of whether the TLV for cotton dust is applicable to mills processing blends of cotton and synthetic fibers. Deering-Milliken was processing a blend of 85 percent cotton and 15 percent synthetic fibers in two of its opening rooms, and 100 percent polyester in a third. Relying on the research done by Dr. Roach involving blend mills, Judge Burroughs held that "[t]he cotton dust standard is deemed applicable to the blends being processed at the Unity Plant at the time of inspection." We emphasize that the cotton dust standard is applicable to any workplace where cotton dust is present. Its applicability is not dependent on the materials or processes involved. Compare 29 C.F.R. 1910.1000 with 29 C.F.R. 1910.1043(a) (cotton dust); 29 C.F.R. 1910.1046a(a) (cotton dust in cotton gins); 29 C.F.R. 1910.1029(a) (coke oven emissions).

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Respondent has raised two issues however on which we deem further discussion to be appropriate.

The respondent contends that the 1910.93 standard, under which it was cited, n5 was invalidly promulgated and accordingly the 1910.1000(e) violations cannot stand. n6 The 1910.93 standard was promulgated twice. The original version of 1910.93 was adopted by the Secretary pursuant to section 6(a) of the Act on May 29, 1971, 36 Fed. Reg. 10466. It was later repromulgated on August 13, 1971, 36 Fed. Reg. 15101, with the accompanying statement:

"Section 1910.93 (air contaminants) has been revised in its entirety, in the interest of greater intelligibility and accuracy."

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n5 29 C.F.R. 1910.93 through 1910.93(q) were subsequently redesignated 29 C.F.R. 1910.1000 through 1910.1017. 40 Fed. Reg. 23072 (May 28, 1975).

n6 In Chairman Cleary's opinion the Commission is not empowered to declare any standard invalidly adopted. See United States Steel Corp., 77 OSAHRC 12/C3, 2 BNA OSHC 1343, 1974-75 CCH OSHD para. 19,047 (Nos. 2975 & 4349, 1974) (concurring opinion), appeal dismissed, 517 F.2d 1400 (3rd Cir. 1975). In the absence of dispositive judicial guidance on the matter, however, he fully joins in this discussion upholding the standard.

[*6]

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Section 6(a) of the Act authorized the Secretary of Labor to promulgate as occupational safety or health standards any national consensus standards and established federal standards without regard to the rulemaking procedures of section 6(b) of the Act or the Administrative Procedure Act. n7 When promulgating a standard pursuant to section 6(a), the Secretary may not make any significant substantive alteration from the source document. Usery v. Kennecott Copper Corp., No. 76-1735 (10th Cir., Dec. 23, 1977). Further, in those instances where the Secretary modifies a source document or an existing OSHA standard by making a significant substantive change, he must follow the rule-making procedures prescribed in Section 6(b) of the Act. The respondent argues that the cotton dust standard as revised on August 13, 1971, had been modified within the meaning of Section 6(b) of the Act, and therefore its repromulgation under Section 6(a) was invalid. Respondent also contends that the original and revised cotton dust standards were substantially altered from the source document.

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n7 5 U.S.C. section 553.

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Specifically, respondent contends there were 3 major changes. First, it argues that the original 1910.93 standard required that respirators need only be approved by a competent industrial hygienist. Under the standard as repromulgated, respirators also had to meet the requirements of 1910.134. Second, the respondent claims that the original 1910.93(a) gave employers the choice of using either engineering controls or personal protective equipment to protect employees from excessive levels of air contaminants. As revised, engineering controls were made the primary protection, with personal respiratory equipment permitted only where engineering controls were not feasible to achieve full compliance. Finally, it asserts that while both the original and the revised versions of the standard incorporate the threshold limit value (TLV) established by American Conference of Governmental Industrial Hygienists (ACGIH), they both omit a crucial limiting headnote contained in the source document. The headnote states that: [*8]

"(TLVs) should be used as guides in the control of health hazards and should not be used as fine lines between safe and dangerous concentrations".

The Judge summarily disposed of respondent's contentions in an order responding to a motion by respondent for partial summary judgment, citing fieldcrest Mills,    OSAHRC   , 2 BNA OSHC 1143, 1974-75 CCH OSHD para. 18,471 (No. 5625, 1974), petition for review dismissed, 545 F.2d 1384 (4th Cir. 1976). In that case the Commission held that the cotton dust standard under 1910.93 had been validly promulgated and was enforceable. We agree with the Judge's disposition of the issue and we reaffirm our holding in Fieldcrest Mills, supra. However, we believe that a more thorough analysis of the respondent's contentions is in order.

Respondent's first contention that 1910.93 as repromulgated was substantively altered from the original standard because the repromulgated standard requires personal respirators to be in compliance with 1910.134 is without merit. The 1910.134 standard was promulgated simultaneously with the original 1910.93 on May 29, 1971. 36 Fed. Reg. 10466. Therefore, the revision in section 1910.93 requiring compliance [*9] with section 1910.134 did not place any additional burden on the respondent because the employer's duty to comply with 1910.134 was independent of its incorporation into 1910.93.

As to the claim that 1910.93(a) initially gave employers the choice of either engineering controls or personal protective equipment to protect employees, respondent's argument lacks merit. Whatever ambiguity there may have been in the original 1910.93(a) was resolved by the original 1910.93(b). That part specifically directed that "feasible administrative or engineering controls must first be determined and implemented in all cases". As such, the language of the original version effectively parallels that of the revised, which states: "administrative or engineering controls must first be determined and implemented whenever feasible". Therefore respondent misreads the original 1910.93(a); when properly read in its entirety, the original 1910.93 imposes the same duty on employers with respect to utilization of engineering controls as does the revision.

Finally, we reject the contention that the failure to incorporate the limiting ACGIH headnote in 1910.93 constituted a substantive alteration. The cotton [*10] dust standard adopted by the Secretary was an established federal standard, promulgated under the Walsh-Healey Public Contracts Act, 41 U.S.C. 35 et seq., and published at 41 C.F.R. 50-240.50. The standard as promulgated under Walsh-Healey, and as adopted by OSHA under section 6(a) of the Act, referred only to the TLV contained in the ACGIH regulation. Hence, as the Walsh-Healey standard did not include the limiting headnote, the Secretary properly omitted the ACGIH headnote when he promulgated the cotton dust standard. In any event, the headnote was not part of the ACGIH regulation itself, but was an explanatory note from that source document. As such, its omission from 1910.93 did not constitute a material change. See Noblecraft Industries, Inc., 75 OSAHRC 5/A2, 3 BNA OSHC 1727, 1975-76 CCH OSHD para. 20,168 (No. 3367, review docketed, No. 76-1106 (9th Cir. January 19, 1976); Diamond International Corp., 76 OSAHRC 136/A2, 4 BNA OSHC 1321, 1976-77 CCH OSHD para. 21,242 (No. 3460, 1976), petition for review docketed, No. 76-3714 (9th Cir. December 23, 1976). Therefore, we conclude that the Secretary's failure to incorporate the headnote did not render [*11] the standard's promulgation or repromulgation invalid.

The other issue raised by respondent which we deem appropriate for comment involves the interpretation of the standard. Specifically, the respondent excepts to the Judge's conclusion that the standard, which reads "cotton dust (raw)", was intended to be enforced as a total dust standard, measuring both cotton and non-cotton particles. n8 The respondent contends that the Judge's conclusion upholding OSHA's interpretation of the standard is not scientifically valid and ignores acceptable methods for separating a total dust sample into its cotton and non-cotton dust components. In addition, respondent argues that such an interpretation fails to give an employer adequate notice of what is to be measured to ascertain a violation of the standard for "cotton dust (raw)." For support, the respondent relies on Spring Air Mattress Co., 74 OSAHRC 90/B12, 2 BNA OSHC 1416, 1974-75 CCH OSHD para. 19,146 (No. 1422, 1974), (Chairman Cleary dissenting), where the Commission did not accept the Secretary's interpretation that the standard was a total dust standard because no evidence was adduced to support his theory.

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n8 The air samplings collected during the inspection contained ordinary dirt as well as cotton dust and the industrial hygienist made no attempt to distinguish them.

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The Judge rejected the respondent's position. In doing so, he relied on the evidence of record, particularly the testimony of the Secretary's expert, Dr. Roach. Dr. Roach testified that the TLV for cotton dust is based on a sampling of the total dust that is present in a cotton mill. He defined cotton dust to include, among other things, cellulose fibers, plant debris, dried leaves, pieces of twig, soil and air pollution. The Judge concluded that the evidentiary record distinguished this case from Spring Air Mattress, supra. He noted that the Commission had not specifically ruled in that case that enforcing the cotton dust standard as a total dust standard was invalid. Rather the Commission had merely held that the Secretary had failed to introduce evidence to support the theory that the standard was a total dust standard. Here, the Judge found that the Secretary [*13] had introduced such evidence and that the evidence was persuasive.

We agree with the Judge's disposition of this issue. The testimony of Dr. Roach and the findings and conclusions of the study which he co-authored, justify the conclusion that the TLV is a total dust measurement. We also note that Respondent's expert witness, Dr. Hatcher, also understood the cotton dust standard to be a total dust standard.

The Roach-Schilling study n9 served as the scientific basis for the present cotton dust standard, and was the first to establish the link between byssinosis and cotton dust. Byssinosis is a respiratory disease of occupational origin which occurs among workers processing cotton. As Dr. Roach testified, the study was unable to identify the specific agent which causes byssinosis. However, the study did determine that the prevalence of the disease was very closely related to the concentration of total dust. The mills with the highest concentration of total dust n10 had the highest prevalence of disease. n11

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n9 S.A. Roach & R.S.F. Schilling, A clinical and environmental study of byssinosis in the Lancashire cotton industry, 17 BR J IND MED 1 (1960).

n10 After cotton dust was first placed on its tentative list of threshold limit values, the ACGIH adopted a TLV of 1 mg/m3, based on the research done by Roach and Schilling. The researchers made the following suggestions concerning total dust exposure:

1. Less than 1 mg/m3: safe, with medical supervision of workers;

2. Between 1.0 and 2.5 mg/m3: dust control desirable and medical supervision essential;

3. More than 2.5 mg/m3: dust control and medical supervision essential.

We note that, inasmuch as the ACGIH based its TLV on the Roach-Schilling study, it is inaccurate to state, as did Judge Burroughs, that the ACGIH concluded that 1 mg/m3 is the threshold below which no normal worker will be affected. The above summary of the researchers' findings suggests a somewhat different conclusion, indicating that continued surveillance is desirable.

n11 In the Roach-Schilling Study, the correlation coefficient between byssinosis and the concentration of dust was 0.93. Dr. Roach testified that this correlation coefficient "was highly significant by statistical tests and highly positive."

[*14]

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Accordingly, in conducting this study, the authors used total dust measurement. As Dr. Roach explained, total dust sampling presented the simplest sampling procedure with the most reliability and accuracy. Therefore, we conclude that the TLV for cotton dust is based on a measurement of total dust, and that the Secretary did not need to separate the air samples collected into their cotton and non-cotton components. n12 To the extent that Spring Air Mattress, supra, indicates otherwise, we expressly overrule that decision.

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n12 We note that the recently revised cotton dust standard, issued on June 23, 1978, 43 Fed. Reg. 27354, specifically defines cotton dust as including non-cotton components. 29 CFR 1910.1043(b).

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The Judge's decision is affirmed.