“Docket No. 78-2307 UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR, Complainant, v. OSHRC DOCKET NO. 78-2307KRAUSE MILLING COMPANY, Respondent. ORDER\tOn April 22, 1986, the Commission issued a conditional order affirming thejudge’s dismissal order unless the Secretary requested a remand within 30 days. TheSecretary filed a response to the Commission’s conditional order dated May 12, 1986.In the Secretary’s response, the Secretary indicated that he did not want to proceedfurther with this case. Therefore,this case is now a final order as of the date ofthis order. FOR THE COMMISSION\/s\/\t\t\t\t\tEXECUTIVE SECRETARY\t\t\tDated: MAY 2 3 1986SECRETARY OF LABOR, Complainant, v. KRAUSE MILLING COMPANY, Respondent.OSHRC Docket No. 78-2307DECISIONBefore:\u00a0 BUCKLEY, Chairman; RADER and WALL,Commissioners.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).This case is a companion case to Bunge Corp.,OSHRC Docket Nos. 77-1622, 78-0838 & 78-2213, issued this date.\u00a0 As in Bunge,the principal issues on review involve the interpretation and application of the inert ornuisance dust provision of the mineral dust standard.[[1]]\u00a0 Also involved in thiscase is a motion by the Secretary to amend his complaint.\u00a0 We affirm the judge’sdisposition of the inert or nuisance dust allegations, but grant the Secretary anopportunity to request a remand for a ruling on his motion to amend.Krause Milling Company has a workplace in Milwaukee, Wisconsin, where it is engaged incorn and grain milling and related activities.\u00a0 Following an inspection of thatworkplace on April 12-14, 1978, OSHA issued a citation alleging that Krause Milling hadfailed to implement administrative or engineering controls to reduce the exposure ofemployees to \”airborne levels of total particulate\” in excess of the levelspermitted by the inert or nuisance dust provision of the mineral dust standard.\u00a0 Theemployer contested the citation and the case was scheduled for a hearing before formerCommission Judge Vernon Riehl.\u00a0 Before the hearing, however, Krause Milling filed amotion to dismiss, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for\”failure to state a claim upon which relief can be granted.\”\u00a0 KrauseMilling presented three arguments in support of its motion.\u00a0 First, it argued that\”corn dust, as an organic, non-inert substance, does not fall within the coverage ofthe materials listed in ‘Table Z-3–Mineral Dusts’. . . .\”[[2]] Second, it arguedthat the standard as interpreted by the Secretary is unconstitutionally vague. Finally, itasserted that the Secretary had failed to follow proper legal procedures, therebydepriving it of due process, in reversing an earlier policy position that limitedenforcement of the inert or nuisance dust provision to mineral nuisance dusts.[[3]]The scheduled hearing in the case accordingly wasdevoted to an oral argument on Krause Milling’s motion to dismiss.\u00a0 At the end of thehearing, Judge Riehl took the motion under advisement, giving the parties a sixty-dayperiod to file any further submissions in connection with the motion.\u00a0 Ten weeksafter the oral argument, the Secretary filed a motion to amend his complaint.\u00a0 Themotion sought three changes in the pleadings.\u00a0 First, the Secretary set forth analternative legal theory, that is, if the cited conditions are not regulated by themineral dust standard, they are governed by section 5(a)(1) of the Act, 29 U.S.C. ?654(a)(1), and Krause Milling was in violation of section 5(a)(1).\u00a0 Second, theSecretary attempted to change the classification of the alleged violation from nonseriousto serious.\u00a0 Finally, although the Secretary previously had not requested anypenalty, he now proposed that a penalty of $210 be assessed.\u00a0 Krause Milling opposedthe Secretary’s motion.In his decision, Judge Riehl granted Krause Milling’smotion to dismiss, agreeing with all three of the arguments presented by the employer insupport of its motion.\u00a0 The judge did not rule on the Secretary’s motion toamend.\u00a0 In fact, he made no reference to it. The Secretary subsequently sought andobtained review on two issues:\u00a0 (1) whether the judge erred in granting KrauseMilling’s motion to dismiss for failure to state a claim upon which relief can be grantedand (2) whether the judge erred in failing to rule upon the Secretary’s motion to amendhis complaint.In Bunge Corp., we concluded that the inert ornuisance dust provision does not apply to grain dust because it is part of a standard thatapplies only to mineral dusts.\u00a0 We further concluded that adoption of the Secretary’scontrary interpretation of the standard would deprive employers of their due process rightto fair notice of the standard’s requirements.\u00a0 Judge Riehl reached these sameconclusions here.\u00a0 Accordingly, we affirm the judge’s granting of the motion todismiss on these grounds.\u00a0 We therefore need not reach the third argument raised byKrause Milling in support of its motion, that is, that the Secretary failed to followproper legal procedures in issuing Program Directive #300-11, thereby depriving KrauseMilling of due process.We agree with the Secretary that the judge erred indismissing the case without ruling on his motion to amend.\u00a0 However, considering theage of the case and the fact that no evidence has yet been heard, it may be that theSecretary no longer wishes to proceed on his alternate theory.\u00a0 Accordingly, we entera conditional order affirming the judge’s dismissal order in this case unless, within 30days, the Secretary files a request that the case be remanded.\u00a0 Upon request, thecase will be remanded for a ruling on the Secretary’s motion to amend, and for any furtherproceedings that may be necessary as a result of that ruling.FOR THE COMMISSIONRay H. Darling, Jr. Executive Secretary DATED:\u00a0 APR 22, 1986The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1]] The term \”mineral dust standard\”refers to various related provisions of 29 C.F.R. ? 1910.1000 that, taken together,require employers to implement protective measures when their employees are exposed tomineral dust levels that exceed any of the exposure limits listed in Table Z-3 of ?1910.1000.\u00a0 \”Inert or nuisance dust\” is one of the listed substances thatis regulated under the mineral dust standard.\u00a0 The pertinent provisions are thefollowing:? 1910.1000 Air contaminants.An employee’s exposure to any material listed in table Z-1, Z-2, or Z-3 of thissection shall be limited in accordance with the requirements of the following paragraphsof this section.(c) Table Z-3:\u00a0 An employee’s exposure to anymaterial listed in table Z-3, in any 8-hour work shift of a 40-hour work week, shall notexceed the 8-hour time weighted average limit given for that material in the table. TABLE Z-3 — MINERAL DUSTS Substance Mg\/M3 * * * Inert or Nuisance Dust: Respirable fraction …… * 5 mg\/M3 Total dust …………… * 15mg\/M3 (e) To achieve compliance with paragraph (a) through (d) of this section, administrativeor engineering controls must first be determined and implemented whenever feasible. \u00a0When such controls are not feasible to achieve full compliance, protective equipment orany other protective measures shall be used to keep the exposure of employees to aircontaminants within the limits prescribed in this section. . . .[[2]] In response to a request for admissions filedby Krause Milling, the Secretary admitted that the \”total particulate\” referredto in his citation and complaint had been corn dust.\u00a0 The Secretary also admittedthat corn dust is an organic material, that it is not inert, and that it is not a mineral.[[3]] This claim was also based on the Secretary’sresponses to the request for admissions.\u00a0 The Secretary admitted that two memorandaand a program directive had been written by OSHA personnel concerning the scope of theinert or nuisance dust provision.\u00a0 On June 30, 1977, C.R. Holder, Assistant RegionalAdministrator for Technical Support, stated in a memorandum that the provision could onlybe applied to mineral nuisance dusts because Table Z-3 is captioned MineralDusts.\”\u00a0 On July 13, 1977, Richard P. Wilson, Deputy Director, FederalCompliance and State Programs, wrote in a memorandum that the position taken by C.R.Holder was correct.\u00a0 On February 2, 1978, Wilson issued OSHA Program Directive#300-11 in which he cancelled his July 13 memorandum and declared that organic non-mineraldusts are included within the coverage of the inert or nuisance dust provision of themineral dust standard.”