SPRING AIR MATTRESS COMPANY OF COLORADO
OSHRC Docket No. 1422
Occupational Safety and Health Review Commission
December 19, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision rendered by Judge John J. Morris. Judge Morris vacated Complainant's citation for serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). According to the citation Respondent's employee had been exposed to raw cotton dust in excess of the limit set by 29 C.F.R. 1910.93. The standard proscribes a time weighted limit value (based on an 8 hour work shift in a 40 hour work week) of one milligram per cubic meter of air.
We have reviewed the record and affirm the Judge's disposition for the reasons stated herein.
The relevant facts are as follows:
Respondent manufactures cotton mattresses. On August 9, 1972, Complainant's industrial hygicnist, Fehringer, visited Respondent's plant for the purpose of sampling the air in Respondent's garnetting room. Two employees work in this room. One employee removes burlap sacks from bales of cotton, n1 pulls the bales apart and places the cotton on a conveyor. The cotton [*2] is them moved through a garnetting machine. The machine cleans and layers the cotton into batting. The second employee removes the batting from the conveyor.
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n1 We note that although Fehringer believed the bales to be of cotton they were in fact bales of cotton linters. The facts herein are that linters and cotton are different materials. In Buckeye Cellulose Corp., His decision became final pursuant to section 12(j) of the Act, and Complainant did not seek appellate court review. Also see Judge Brenton's decision in Trader Oil Mill Company, Because our disposition herein is predicated on the other grounds we need not dispose of this case on the grounds stated in Buckeye.
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Upon entering the garnetting room, Fehringer observed dust and raw cotton floating in the air; it was settling on the employees and on the machinery. [*3] She examined the bales and noticed that they were comprised of a mixture of cotton fibers, dirt, stems, and leaves.
Fehringer attached a MSA Model G personal sampling pump to each employee. She then attached the pump to a cassette placed approximately three inches from the employees' breathing zones. Each cassette contained a pre-weighed piece of filter paper. The filter paper was uncontaminated. The pumps were activated, and each drew room air through its filter. The sampling lasted approximately 3-1/2 hours during which time neither the employees nor Fehringer left the room.
After sampling, Fehringer sealed the cassettes so that additional dust could not collect on the filters. She returned to her office and re-weighed the filters using acceptable procedures. She then subtracted the post sampling weights from those determined before sampling and by using equations concluded that one employee had been exposed to 3.15 milligrams of dust and the other to 2.90 milligrams. Fehringer did not at any time throughout the entire process attempt to distinguish the types of dust components collected on the filters. She merely assumed that they were cotton. She did admit that other [*4] kinds of dust, such as dirt, would have been present in the room air if there was "other dirt besides the raw cotton."
The cited standard proscribes employee exposure over an 8 hour work day to an excess of 1 milligram raw cotton dust percubic meter of air. The record establishes that the air the two employees were breathing contained more than 1 milligram of dust per cubic meter of air. It is also established that the dust included dirt as well as cotton. At the hearing Complainant theorized that ordinary dirt associated with cotton bales is raw cotton dust for the purposes of the standard. Fehringer proceeded on that assumption. No evidence was adduced to support the theory. In the circumstances, we cannot say that they are the same. Since the sampled air contained ordinary dirt as well as cotton and since no attempt was made to distinguish them we can only speculate as to the amount of raw cotton dust that was in the air. Complainant has not sustained his burden of proof. armor Elevator Co., 5 OSAHRC 260, BNA 1 O.S.H.C. 1409, CCH Employ. S. & H. Guide para. 16,958 (Rev. Com'n., 1973).
Accordingly, the decision of the Judge is affirmed for the reasons stated [*5] herein. It is so ORDERED.
CONCURBY: MORAN
CONCUR:
MORAN, CHAIRMAN, concurring: I am in agreement with the foregoing opinion. It is a perfectly valid reason for sustaining the disposition ordered by the Judge below. The Judge's reasoning was equally valid. Since both Commissioner Van Namee and Judge Morris reach the same disposition by different (but not inconsistent) routes and since both of them are correct, in my opinion, I wish to associate myself with both.
DISSENTBY: CLEARY
DISSENT:
CLEARY, COMMISSIONER, dissenting: The Secretary has sustained his burden of proving employee exposure to cotton dust in amounts exceeding those allowed by the standard. Respondent, with the exercise of reasonable diligence, could have known of the presence of the violation. Accordingly, I dissent from both grounds for vacating the citation.
As described by my colleague, respondent's garnetting room, where bales of cotton and cotton linters are processed into cotton batting, n2 was observed to have raw cotton floating in the air and settling in a heavy covering on machinery and employees. According to the Secretary's Compliance Officer the dusty condition caused nasal congestion, coughing, sneezing, [*6] spitting up and a congested feeling.
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n2 Cotton batting is defined as thin, pressed layers of fluffy, absorbent cotton. Webster's New World Dictionary 322, 2d ed.
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The cited standard proscribes exposure to cotton dust in excess of one milligram per cubic meter of air. The concentrations of dust to which respondent's employees Cepeda and Swazo were exposed were, respectively, 3.15 and 2.90 milligrams per cubic meter, approximately three times greater than the maximum levels considered safe to human respiration. On the basis of the obvious existence of cotton dust in the garnetting room, readily detectable by human senses, along with test results showing dust levels far beyond permissible levels, Judge Morris found it reasonable to infer that the standard was violated. He states,
From the facts enumerated above this Judge infers that the dust sampling obtained was raw cotton dust. Respondent offered no evidence to rebut such inference.
The obvious presence of cotton dust in the room combined with the heavy concentrations [*7] of dust that were measured constitute strong circumstantial evidence that the level of cotton dust exposure was excessive. While closer measurement might be necessary in a marginal case, the circumstances of this case do not require such exactitude. I therefore agree with the presiding Judge that the Secretary has sustained the burden of proving excessive cotton dust.
I disagree, however, with his conclusion regarding respondent's lack of knowledge of the violation. I would take official notice that the Department of Labor included exposure to cotton dust within its "Target Health Hazard Program," noting that cotton dust can produce byssinosis, a disabling lung disease. Cotton dust was characterized as a major health hazard. Release by George C. Guenther, Assistant Secretary of Labor for Occupational Safety and Health, (January 4, 1972). Knowledge of byssinosis is not essential to establishing a violation. It is the excessive cotton dust that constitutes a violation.
With reasonable diligence respondent could have known of the excessive cotton dust. It was fully aware of the presence of cotton dust in some quantity in its operation. Additionally, respondent is [*8] charged with knowledge of the requirements of section 1910.93 wherein a threshold limit value is prescribed for cotton dust. In these circumstances the exercise of reasonable diligence required that respondent test its plant atmosphere to determine whether the levels of dust exceeded legal limits. n3
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n3 Chief Judge Mehaffy, speaking for the U.S. Court of Appeals for the Eighth Circuit in a case involving the general duty clause [section 5(a)(1)] of the Act, states, "A violation occurs whenever an employer fails to take reasonable precautionary steps to protect his employees from reasonably foreseeable 'recognized hazards' . . ." Brennan v. O.S.H.R.C. & Vy Lactos Laboratories, Inc., 494 F.2d 460, 463 (8th Cir. 1974).
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Accordingly, I disagree with the majority and would find that respondent violated the Act by its failure to comply with the requirements of 29 CFR 1910.93 and that the violation was "serious" within the meaning of section 17(k) of the Act.
[The Judge's decision referred to herein follows] [*9]
MORRIS, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act contesting an amended Citation issued by Complainant against Respondent under the authority vested in Complainant by Section 9(a) of that Act.
The amended Citation for serious violation alleges that Complainant inspected a workplace under the ownership, operation or control of Respondent located at 1055 South Jason Street, Denver, Colorado, and described as follows: manufacturer of mattresses.
It is further alleged that Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standard promulgated by Complainant, pursuant to Section 6 thereof. A final abatement date of December 28, 1972 was proposed.
In addition to the final abatement date, the Area Director proposed that three days after receipt of the amended Citation, the two employees operating the garnet machine must be provided with suitable respirators; instructions and reasons for their use are to be given and enforced until engineering controls are effective in reducing exposure to cotton dust to [*10] permissible limits.
The contested amended Citation was issued on August 22, 1972 as the result of an inspection on August 9, 1972 (Tr. 14, 16), and it is alleged that the standard violated was duly published in the Federal Register and subsequently recodified in the Code of Federal Regulations at 29 CFR 1910.93, Table G-1.
The description of the violation alleged in amended Citation No. 2 for serious violation states as follows:
Raw cotton dust in atmosphere breathing area of an employee in the garnet room was found to be in excess of eight hour time weighted average threshold limit values.
The amended Citation alleges that the standard violated is codified at 29 CFR 1910.93, Table G-1.
The pertinent portions of the aforesaid standard as promulgated by the Secretary are as follows:
§ 1910.93 Air contaminants.
An employee's exposure to any material listed in table G-1, G-2, or G-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.
(a) Table G-1:
(1) Materials with names preceded by "C" -- Ceiling Values. An employee's exposure to any material in table G-1, the name of which is preceded by a "C" (e.g., C Boron [*11] trifluoride), shall at no time exceed the ceiling value given for that material in the table.
(2) Other materials -- 8 hour time weighted averages. An employee's exposure to any material in table G-1, the name of which is not preceded by "C," 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.
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Table G-1 |
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Substance |
p.p.m. a |
mg./M<3> b |
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Cotton dust (raw) |
|
1 |
Pursuant to the enforcement procedure as set forth in Section 10(a) of the Act; the Respondent was notified by letter dated August 22, 1973 from the U.S. Department of Labor, by J. J. Williams, Area Director for the Occupational Safety and Health Administration; said Area Director proposed to assess a penalty for the amended violation alleged in this paragraph in the amount of $550.
After Respondent contested this enforcement action, and a Complaint and an Answer having been filed by the parties, the case came on for hearing in Denver, Colorado on February 8, 1973. No parties desired to intervene in the proceedings; the notice of hearing was duly posted (Tr. 5, 8).
STATEMENT OF JURISDICTION
Respondent corporation, [*12] in its answer to the Complaint, admits the Review Commission has jurisdiction. Respondent is in a business affecting commerce, purchasing materials from other states and selling its finished products in various states (Complaint, Answer, Tr. 4, 5)
It follows that the Review Commission has jurisdiction of the parties and the subject matter of this litigation.
EVIDENCE
There is a conflict in the transcript of this case as to the date of the inspection of Respondent's worksite. At one place in the record it is recited that the inspection took place on April 9, 1972 (Tr. 11); however, in other places it is indicated that the inspection took place August 9, 1972 (Tr. 14, 16). This Judge finds that the evidence of the latter date in its context in the transcript is more convincing and finds that the date of the actual inspection of Respondent's worksite was August 9, 1972. The amended citation for serious violation was issued on August 22, 1972. Renee' Gehringer, an industrial hygienist with the U.S. Department of Labor, Occupational Safety and Health Administration qualified with a Bachelor's Degree in Chemistry and a Master's Degree in Chemistry and Physics (Tr. 9). [*13] She attended the Occupational Safety and Health Administration school and studied raw cotton dust in the Target Health Hazard Program (Tr. 10).
She inspected the garnetting room at Respondent's worksite (Tr. 10-11). In this room were tightly packed bales of cotton which were being opened (Tr. 61). She could see dust floating freely in the air (Tr. 11, 26) which settled on clothing, machinery, and in the hair (Tr. 11); it caused nasal congestion, coughing and sneezing (Tr. 27). The room was noticeably dusty (Tr. 26), and the witness could see particles of raw cotton; there were heavy deposits of cotton dust on machinery, cases and chairs (Tr. 26, Complainant's Exhibits 1, 2 and 3).
The garnetting room is a separate room (Tr. 19-20) approximately 50 feet by 20 feet (Tr. 58) garnetting machine receives raw cotton from the cotton bales. A cotton bale is opened by one man and pulled apart, the material is laid on the conveyor belt and then sent through a machine to remove the dirt, stems, leaves and related fibers (Tr. 20). One man puts the cotton into the machine, and the other takes the batting as it comes out (Tr. 20, 24). The final product then goes into mattresses (Tr. 20). [*14] Complainant's witness concluded from her observations in the garnetting room that it was raw cotton dust in the air (Tr. 11).
In the garnetting room Complainant's witness attached sampling pumps to two employees. Attached to the pump was a cassette with a preweighed filter (Tr. 12, 17). The cassette and the method of preweighing the filter were described (Tr. 13-14). The particular sampling pump was a MSA model G (Tr. 17). The pump draws 1.5 liters of air per minute through the filter (Tr. 17-18). The rate of air was corrected for the Denver altitude (Tr. 19). The filter was placed in the breathing zone of each man (Tr. 25, 41) about three inches from the mouth of each worker (Tr. 41). The witness had recorded the exact time the sampling was commenced and concluded (Tr. 25, 29), and the sampling was for approximately 3 1/2 hours (Tr. 25). While the pumps were operating the witness remained in the garnetting room observing the operators (Tr. 25), checking the equipment at half-hour intervals (Tr. 25-26) and to observe whether any cotton was thrown into the cassette on purpose or bumped (Tr. 25).
During the time the witness was there the floor was swept three times [*15] (Tr. 26-27), and any material on the floor was put into the machine (Tr. 27). At the Respondent's worksite the Compliance Officer learned that the men involved continued the same operation day after day and they did not have other jobs in the plant (Tr. 28, 46).
After completing her sampling the witness reweighed the filter at her office (Tr. 28) describing in detail the reweighing process as well as the differential in weight (Tr. 29-30). Complainant's witness made no examination of the material lodged on the filter (Tr. 45).
Complainant's witness then made certain mathematical calculations one of which was to change the actual weight of raw cotton into weight per cubic meter of air pull through the pump (Tr. 30-31). A second mathematical calculation was made employing the formula at 29 CFR 1910.93(d)(1)(i) to arrive at the cumulative exposure for an eight-hour work shift. This formula was described and calculated (Tr. 32-33). The witness's calculations were initially put on a blackboard (Tr. 62). At the Judge's request the witness transposed these figures onto a sheet of paper marked Judge's Exhibit 2 (Tr. 62). There were 3.15 milligrams of raw cotton dust per cubic meter [*16] of air for employee Cepeda (Tr. 33, 34). The eight-hour time weighted average for employee Swazo was 2.90 milligrams (Tr. 34). The threshold limit value is 1 milligram per cubic meter of air in an eight-hour period (Tr. 34). Respondent's employee Cepeda was subjected to a concentration three times what is considered to be a health hazard (Tr. 34-35).
Employee Swazo's exposure was slightly less than three times (Tr. 35). The witness computed that on a nine-hour day employee Cepeda would breathe 8.9 cubic milligrams per cubic meter of air and employee Swazo 7.4 milligrams (Tr. 36-37).
In the opinion of the Compliance Officer this was a serious violation because the concentration was three times the threshold limit value (Tr. 35). Persons exposed to raw cotton dust are capable of contracting a disease called "byssinosis" sometimes called "brown lung" disease (Tr. 38). Not all exposed workers are necessarily affected (Tr. 38), but such exposure can develop into a chronic disabling lung disease (Tr. 39). This disease is often diagnosed as "emphysema" to which it bears a resemblance. After it becomes a chronic lung disease it is irreversible (Tr. 39). Complainant's [*17] witness first became acquainted with byssinosis at the Target Health Hazard program in April, 1972 (Tr. 42), although she did not know anyone who has had byssinosis and the actual material causing the disease is relatively unknown (Tr. 43). Experts in the field do not know the cause but it is believed to be a substance that clings to the cotton from a material called "bracks" which is a small stem underneath the ball of cotton (Tr. 43-44). The Complainant's witnesses could not determine if any such harmful particles were clinging to the cotton as they would be sub-microscopic (Tr. 45). Although the cause of byssinosis cannot be exactly determined, it is known to exist in raw cotton dust (Tr. 52). In the South it is a prevalent occupational disease (Tr. 57).
There was an initial proposed penalty for a serious violation in the amount of $1,000.00 (Tr. 40). Respondent was given 20% credit for good faith (Tr. 40); 5% for size; maximum credit for prior history (Tr. 40); and a total credit of 45% (Tr. 40-41).
There is only one OSHA directive for sampling raw cotton dust (Tr. 66). The OSHA directive provides in part as follows:
"Our experience is that at least a 4 and preferably [*18] a 6-hour sample (at 1.5 1/m) is required in a textile plant opening or carding area to obtain reliable results." (Tr. 46, 67-68) (Judge's Ex. 1)
The witness explained that the purpose of the extended period of test time is to be sure that you have a sample taken while an employee is doing particular work. In other words, if an employee goes to another area of the plant where the exposure is less, then his exposure would be reduced (Tr. 65-66). The witness had been assured that the men stayed in the room and did the same work everyday (Tr. 46, 55, 66, 68). The sample was taken for 3 hours, 35 minutes (Tr. 69).
The Complainant's witness did not know of any cases of byssinosis in connection with mattress manufacturers (Tr. 49). and she had read a number of authorities on the subject as these problems relate to cotton dust (Tr. 49).
Complainant's witness participated in a determination of the abatement period; there was a final proposed abatement date of December 28, 1972 (Tr. 70). [Respondent immediately complied by using respirators (Tr. 79).]
RESPONDENT'S EVIDENCE
Dallas Yeargain of Littleton, Colorado, President of Respondent, (Tr. 76) indicated that Respondent's [*19] Company is a member of the Spring Air Mattress franchise, and he is directly interested in two other companies (Tr. 77). In their trade association of 35 mattress manufacturers (in the Spring Air franchise chain), they meet at least twice a year (Tr. 77). Witness Yeargain had never heard of any problem relating to respiratory diseases (Tr. 38) in connection with cotton dust and in negotiations with his unions the respiratory disease problem had never been mentioned (Tr. 78). Employee Swazo had been some years in the garnett room and never complained of respiratory diseases (Tr. 78). The witness was not aware of any danger in connection with the garnett room (Tr. 78) though there are times when they do have a dust problem (Tr. 81); nor had he ever experienced any respiratory disease in any employee (Tr. 77); nor did he know of a claim for compensation due to respiratory illness (Tr. 79).
At this time of the year the stock being processed was the driest and dustiest because it was the end of the crop, known as "linters" (Tr. 81).
After receiving the amended citation Respondent arranged for a $30,000 load from the Small Business Administration, and his company now was [*20] in the process of installing an all new dust filtering system which should be completed next week. (Tr. 79) After the amended citation was received they used respirators (Tr. 79). Respondent's Exhibit 3 was a proposal to install certain electrical work for the price of $950.00. Respondent's Exhibit 4 was the cost of installing new piping work at a cost of $19,430.00 (Respondent's Exhibit 5). A test was done by an outside consulting engineering firm (Respondent's Exhibit 6).
Witness Yeargain indicated that the complete filtering system would be installed by the day following the trial of the case (Tr. 83) as it was being installed at the time of trial (Tr. 82). Respondent immediately after receiving the amended citation took the necessary steps to borrow the money and order the equipment. Installation takes time as the equipment is custom-made (Tr. 82).
ISSUES PRESENTED
1. Whether the 13-day delay between the inspection and the issuance of the amended citation herein was in compliance with the reasonable promptness requirement of Section 9(a) of the Act.
2. Whether there is substantial evidence in the record that the material sampled was raw cotton dust.
3. Whether sampling [*21] data in this case was taken for an insufficient amount of time and was therefore not reliable.
4. Whether there was substantial evidence that there was a serious violation under Section 17(k) of the Act, and whether the burden of proof is upon the Complainant or upon the Respondent to establish that the employer did not and could not with the exercise of reasonable diligence know of the presence of an alleged violation.
5. Whether certain photographic evidence should be excluded because Respondent was not furnished with a copy thereof prior to trial in accordance with a Review Commission pretrial directive.
DISCUSSION
In the instant case the inspection of Respondent's worksite took place August 9, 1972 (Tr. 14, 16). The amended citation issued August 22, 1972. Section 9(a) of the Act requires that the Secretary shall issue a citation with "reasonable promptness." On the basis of the authority in Secretary of Labor v. Silver Skillet Food Products, [*22]
The second issue is whether there is substantial evidence of record that the material sampled was raw dust. Complainant's witness did not examine the material lodged on the filter (Tr. 45) but preweighed the filter (Tr. 12, 17), and reweighed after use to establish the differential (Tr. 29-30). While the Complainant has the burden of proof under Review Commission Rule 2200.73 the facts in evidence show that there were tightly packed bales of cotton in the garnetting room which were being opened in the work (Tr. 61). Dust could be seen floating freely in the air (Tr. 11, 26). The dust caused nasal congrestion, coughing and sneezing (Tr. 27). One employee worked pulling apart bales of cotton, laying the cotton on a conveyor belt and sending it through a machine (Tr. 20). The other employee was taking the batting as it came out of the machine (Tr. 20, 24). From this operation dust settled on clothing, machinery and in the hair (Tr. 11). Material swept up from the floor was placed in the garnetting machine (Tr. 27).
The pumps were properly placed in the breathing zone of the workers (Tr. 25), about three inches from the mouth of each employee (Tr. 41). McCormack [*23] on Evidence, Section 338 discusses methods of satisfying the burden of proof and states in part:
1.c. 791 Other tests and other phrasings of the tests discussed here are myriad, but irrespective of the test articulated, in the last analysis, the judge's ruling must necessarily rest on his individual opinion, formed in the light of his own common sense and experience, as to the limits of reasonable inference from the facts proven.
From the facts enumerated above this Judge infers that the dust sampling obtained was raw cotton dust. Respondent offered no evidence to rebut such inference.
The third issue to be considered is whether the raw cotton dust sampling was taken for a sufficient length of time to be reliable. The only OSHA directive as to raw cotton dust sampling data suggested a 4, and preferably a 6 hour, sample to obtain a reliable result (Tr. 46, 67-68, Judge's Ex. 1). On this issue the only evidence of record is that the employees stayed in the room and did the same work (Tr. 46, 66, 68). On the basis of this evidence, and with no evidence to the contrary, a sampling taken for 3 hours, 35 minutes is reliable and persuasive. As explained by the Compliance Officer, [*24] the purpose of an extended test period is to be sure the sample reflects the continuing work of the employee (Tr. 47, 53-55). Under the evidence in this case, a 3 hour, 35 minute test sampling correctly reflects the work environment.
The next issue to be determined is whether this is a serious violation which exists under the terms of Section 17(k) of the Act. Section 17(k) of the Act provides, in part:
For the purposes of this section, a serious violation shall be deemed to exist if there is a substantial probability that death or serious physical harm could result . . . unless the employer did not and could not with the exercise of reasonable diligence, know of the presence of the violation. (Emphasis added)
The evidence of record indicates that the Respondent had never heard of any problems relating to cotton dust (Tr. 38, 77), nor had there ever been a claim for compensation (Tr. 79), nor was he aware of any danger in connection with the garnett room (Tr. 78). Respondent's evidence is substantiated by Complainant's witness who only became acquainted with the problem in April, 1972 at the Target Health Hazard Program (Tr. 42). In an alleged serious violation [*25] proof is required that an employer did not, or could not, with the exercise of reasonable diligence, know of the presence of the violation; Secretary of Labor v. Republic Creosoting Co., Secretary of Labor v. Eller Bros., It is Complainant's position that the "knowledge" requirement of an employer is an affirmative defense that Ressondent must prove (Tr. 91); further, that by seeing the cotton dust on the floor, he should have known of the danger (Tr. 84).
As to the first contention: this is ruled against Complainant on the basis of Chairman Moran's decision (issued February 9, 1973) in re Secretary of Labor v. Republic Creosoting Co., etc.,
However, the Secretary's original citation was for a "serious violation" pursuant to Section 17(b) and (k) of the Act. To sustain his charge, the Secretary must prove that the employer knew, or could with the exercise of reasonable diligence, know of the presence of the violation (Emphasis added).
From the foregoing case it appears that knowledge on the part of an employer is not an affirmative defense of the employer but that Complainant must [*26] adduce such proof to establish a serious violation.
Complainant's second contention is denied. Seeing cotton dust on the floor of a room, and taking into consideration the other evidence, does not establish that the Respondent employer knew, or could have known of the presence of the violation. Respondent's evidence is directly contrary; further, his testimony is convincing in view of portions of Complainant's evidence that this expert first became acquainted with byssinosis in April 1972 (Tr. 42); she did not know anyone who had the disease (Tr. 43) and the actual causative agent is relatively unknown (Tr. 43). Experts in the field only have a "belief" as to the cause (Tr. 43-44, 52). A finding that Respondent knew, or could with the exercise of reasonable diligence, know of the presence of the violation is not justified on the basis of the record.
Having alleged a serious violation and his proof having failed it follows that the citation issued herein should be vacated and the proposed civil penalty of $550 likewise vacated.
The final issue requires a ruling on Respondent's timely objection to the introduction of Complainant's photographic exhibits 1, 2, and 3. [*27] Respondent's objection was that Complainant had failed to forward a copy of the photographs to Respondent in violation of a Review Commission directive dated November 30, 1972. (Tr. 20) The directive stated that the parties were required to exchange the certain material including:
A complete list of the documents which it proposes to offer in evidence together with a copy of each such documents.
Had the Commission directive required and exchange of photographic exhibits the ruling would be otherwise, but photographic exhibits are not with the perview of the foregoing directive. Accordingly, Respondent's objection is overruled.
FINDINGS OF FACT
1. Respondent is now and was at all times mentioned a Colorado Corporation engaged in a business affecting commerce. Respondent is an employer purchasing materials from other states and selling its finished products in other states (Tr. 4, 5).
2. Two employees of Respondent were in a garnetting room at Respondent's worksite where they performed the same work operation from day to day in this particular room (Tr. 28, 46, 55).
3. The mode of operation of the employers in the garnetting room was to open and pull apart bales of cotton [*28] and send the contents through a machine to remove the dirt, stems, leaves and related fibers (Tr. 20).
4. In the garnetting room dust was floating freely in the air. The dust caused nasal congestion, coughing and sneezing. The room was dusty and raw cotton could be seen with heavy deposits of cotton dust on the machinery, cases and chairs (Tr. 11, 26, 27, Complainant's Exhibits 1, 2 and 3).
5. An MSA Model G sampling pump was placed in the breathing zone of each man and an air sampling taken for 3 1/2 hours (Tr. 17, 25).
6. No examination was made of the material lodged on the filter used in the cassette of the sampling pump (Tr. 45).
7. The filter in the cassette of the sampling pump had been preweighed and after use the differential in weight was established (Tr. 13-14, 29-30; Judge's Exhibit 2).
8. The actual weight of the cotton dust was mathematically calculated into weight per cubic meter of air and a second formula as contained in 29 CFR 1910.93(d)(1)(i) was used to arrive at a cumulative eight hour work shift exposure (Tr. 30-31, 32-33; Judge's Exhibit 2).
9. Two employees of Respondent were exposed to raw cotton dust on an 8 hour time weighted average [*29] of 2.90 milligrams (Tr. 34) and 3.15 milligrams (Tr. 33, 34).
10. The threshold limit value of raw cotton dust is 1 milligram per cubic meter of air in an eight hour period (Tr. 34).
11. Respondent did not know of the presence of the alleged violation (Tr. 38, 77, 78, 79).
12. Respondent could not, with the exercise of reasonable diligence, know of the presence of the violation (Tr. 38, 42, 43, 43-44, 49, 52, 77, 78, 79).
CONCLUSIONS OF LAW
1. Respondent is, and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of Section 3(3) of the Occupational Safety and Health Act of 1970 (Facts, para. 1).
2. Respondent is, and was at all times herein mentioned, an employer within the meaning of Section 3(5) of the Act and subject to the provisions under Section 4(a) and 5(a) of the Act and the standards authorized by Section 6 (Facts, para. 1).
3. Respondent violated Section 29 CFR 1910.93 (Facts, para. 2, 3, 4, 5, 7, 8, 9 and 10).
4. Complainant alleged a serious violation but failed to prove that Respondent knew or could with reasonable diligence, know of the presence of the violation; (Amended citation; Complaint; [*30] Act, Sec. 17(j); Facts, para. 11, 12).
5. In an alleged serious violation the burden of proof is upon Complainant to prove that Respondent employer knew, or could, with the exercise of reasonable diligence, know of the presence of the violation and accordingly such proof is not an affirmative defense resting with the employer.
ORDER
Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED:
1. Amended Citation number 2 for alleged serious violation of 29 CFR 1910.93 Table G-1 is vacated.
2. The proposed civil penalty of $550 contained in the amended notification of proposed penalty is vacated.
So Ordered.