“SECRETARY OF LABOR,Complainant,v.MILLIKEN & COMPANY,Respondent.OSHRC Docket No. 84-0767_DECISION _BEFORE: MONTOYA and WISEMAN, Commissioners.[[1\/]]BY THE COMMISSION:The Secretary of Labor (\”Secretary\”) issued a serious citation toMilliken & Company (\”Milliken\”) following an inspection of its NewHolland plant in Gainesville, Georgia. The citation alleges thatMilliken violated two provisions of the cotton dust standard, 29 C.F.R.? 1920.1043. Former Review Commission Administrative Law Judge Joe D.Sparks affirmed both items of the citation and assessed a total penaltyof $300. We reverse the judge and vacate both items._I. Item 1(a): 29 C.F.R. ? 1910.1043(c)(1)_In June of 1984, a team of Occupational Safety and Health Administration(\”OSHA\”) industrial hygienists inspected Milliken’s New Holland plant.Samples taken in the second floor drawing room during the second workshift, from 8:00 am to 2:30 pm, registered employee exposure levels–inmicrograms of respirable cotton dust per cubic meter of air (ug\/m^3)–of 448 ug\/m^3 , 450 ug\/m^3 , 455 ug\/m^3 and 470 ug\/m^3 . TheSecretary subsequently issued a citation alleging that Milliken hadfailed to comply with 29 C.F.R. ? 1910.1043(c)(1), by exposing itsemployees to levels of respirable cotton dust in excess of thepermissible exposure limit (\”PEL\”) of 200 ug\/m3. At the time of thealleged violation, the standard provided[[2\/]]:? 1910.1043 _Cotton dust._* * *(c) _Permissible exposure limits._ (1) The employer shall assure that noemployee who is exposed to cotton dust in yarn manufacturing is exposedto airborne concentrations of lint-free respirable cotton dust greaterthan 200 ug\/m^3 mean concentration, averaged over an eight-hour period,as measured by a vertical elutriator or a method of equivalent accuracyand precision.To prove a violation of a standard, the Secretary must establish: (1)the applicability of the standard, (2) the existence of noncomplyingconditions, (3) employee exposure or access, and (4) that the employerknew or with the exercise of reasonable diligence could have known ofthe allegedly violative conditions. _Dun-Par Engineered Form Co.,_ 12BNA OSHC 1962, 1965, 1986-87 CCH OSHD ? 27,651, p. 36,033 (No. 82- 928,1986).The party does not dispute the applicability of the standard. Millikenwas manufacturing a blend of polyester and cotton yarn in its secondfloor drawing room on the days of the inspection. The standard appliesto cotton dust exposure during \”yarn manufacturing\”. 29 C.F.R. ?1910.1043(a)(1).There is also no dispute that employees were exposed to the cotton dust.Employee Olden Blackwell was present in the drawing room for most of thework day, and two other employees were in the room for a part of the day.The existence of noncomplying conditions and Milliken’s knowledge ofthem are in dispute. We first consider whether the Secretary establishedthe existence of noncomplying conditions.A._Background and Evidence_During their inspection of the drawing room, the Secretary’s industrialhygienists used vertical elutriators, the sampling devices referred toin the standard, to measure the level of respirable cotton dust in theroom. Four elutriators were positioned in different parts of the room.Cylindrical in shape, a vertical elutriator is divided into threeinterconnected sections. Pumps draw air upward through the bottomsection of the elutriator. The air flows upward until it reaches thecassette portion of the elutriator, where a cassette filter absorbs dustparticles fifteen microns and smaller in size; heavier particles fall tothe bottom of the elutriator. (To ensure the accuracy of samples,elutriators are calibrated both before and after sampling.)Once sampling is completed, the cassette filters are \”desiccated\”. i.e.,any accumulated water is removed from the filters. The samples areweighed on an electron balance. The net weight of the sample isdetermined by subtracting the weight of the cassette before samplingfrom the weight of the cassette after sampling. This net weight is thenadjusted by subtracting the weight gain of a \”control\” filter, which iscontained throughout the sampling period in a cassette that is notconnected to an elutriator and which is used to measure larger,non-respirable dust particles in the air outside the elutriator.Harmon Evans, formerly a micro-biologist with the Center for DiseaseControl and an industrial hygienist for OSHA for eleven years, testifiedin detail about the sampling procedures he employed during theinspection of Milliken’s New Holland plant. Evans testified that hefollowed proper procedures in desiccating and weighing the filters andthen reweighing each filter three times for accuracy the next day. Evansalso testified that the accuracy of the sampling results was confirmedby the use of a control cassette and by the uniformity of the results ofthe samples from each of the four vertical elutriators– 448 ug\/m^3 ,450 ug\/m3, 455 ug\/m^3 and 470 ug\/m^3 . The closely-bunched resultssuggested to Evans that there were \”no unusual circumstances that couldhave increased the weight of those filters.\” He was not aware of anyproblems with his handling of the cassettes.The Secretary’s other industrial hygienist who appeared as a witness atthe hearing, Cynthia Wolfe, had worked with OSHA for five years. Wolfetestified that she had been in the drawing room for the entire samplingday (with the exception of an hour for lunch, during which she wasrelieved by another industrial hygienist). Throughout the day, Wolfeobserved the vertical elutriators and the employees working in thedrawing room to make sure no one tampered with the sampling devices. Shealso checked the pumps periodically. She did not observe any problemswith either the elutriators or the pumps.Milliken’s training manager, Loren Strickland, was also responsible forsupervising Milliken’s own sampling of cotton dust exposure at theplant. Although he had not personally conducted the cotton dustmonitoring, he had supervised the taking of 120-150 cotton dust samples.Strickland had no formal training as an industrial hygienist. Hetestified that, during the OSHA inspection, he had observed theSecretary’s industrial hygienists while they were sampling the drawingroom exposures. Strickland alleged that the hygienists used a number ofprocedures that might have caused sampling errors: (1) an unspecifiednumber of sampling cassettes were briefly exposed to unfiltered roomdust outside the elutriators, both while the cassettes were stillattached to working pumps and while they were being handled separately;(2) tape intended to seal one cassette onto an elutriator did not form acomplete seal and therefore could have allowed unfiltered air to getthrough to the cassette; and (3) the tops of cassettes were kept in thepockets of the Secretary’s hygienists, where they could acquire lintthat could be transferred to cassette filters when the tops were putonto the filters.B. _The Decision of Judge Sparks_The judge found that the sampling results obtained by the Secretary weresubstantially accurate:OSHA personnel carefully set up the equipment, and handled, processedand weighed the cotton dust samples so that the results obtained weresubstantially accurate and reliable [transcript citations omitted].The judge accorded greater weight to testimony given by OSHA’sindustrial hygienists establishing the accuracy of those results, thanto testimony given by Milliken training manager Strickland alleging thatthe sampling had been tainted. The judge described OSHA’s industrialhygienists as \”well trained professionals,\” while noting that trainingmanager Strickland had received no training as an industrial hygienist.He concluded that Milliken had failed to produce \”firm evidence\” thatcareless handling of the samples by the industrial hygienists hadproduced test results that were significantly higher than the actualcotton dust levels in the sampled work areas.C. _The Arguments of the Parties_Milliken argues that the Secretary’s cotton dust samples were notproperly taken and, therefore, did not yield accurate results [[3\/]]. Itargues that training manager Strickland had more experience in cottondust sampling with vertical elutriators than did the Secretary’sindustrial hygienists. Accordingly, it continues, Strickland’s testimonydemonstrates that the Secretary’s results were inaccurate because thesamples were mishandled. Milliken also argues that it was unlikely thatthe cassette filters used by the Secretary during sampling were weighedproperly because the weight of each filter came out exactly the sameeach of the three times it was weighed.The Secretary contends that the judge properly gave greater weight tothe testimony of her well-trained industrial hygienist than to thetestimony of Milliken’s training manager, who had received no trainingas an industrial hygienist. We agree. We see no reason to disturb thejudge’s finding that the testimony of the Secretary’s professionalindustrial hygienists should be given greater weight that the testimonyof Milliken’s training manager, who had not been trained as anindustrial hygienist. _See Kelly Springfield Tire Co., _10 BNA OSHC1970, 1973, 1982 CCH OSHD ? 26,223, p. 33,113 (No.78-4555, 1982)(safetyexperts familiar with general workplace condition recognized explosionhazard, although respondent’s plant personnel did not). The industrialhygienists testified that there were no problems with the samplingcassettes or the elutriators. They employed a control cassette thathelped ensure reliable results, and the results obtained from thesecretary’s sampling with four different vertical elutriators were veryclosely bunched together at 448 ug\/m^3 , 450 ug,\/m^3 , 455 ug\/m^3 and470 ug\/m^3 . Taken together, this evidence is sufficient to establishthat the sampling results were substantially accurate; the resultsfalling within such a narrow range is the strongest proof of theiraccuracy. We therefore accept the judge’s finding that Milliken employeeBlackwell was exposed to impermissible levels of cotton dust in thesecond floor drawing room.D. _Did Milliken Know of the High Cotton Dust Levels?_In order to find an employer in violation of a standard, it is notenough to find that a condition contravening that standard existed atthe employer’s workplace. The Secretary must also prove that theemployer either knew or, with the exercise of reasonable diligence,could have known of the noncomplying condition. _See Dun-Par, EngineeredForm Co.,_ _supra_. For the reasons that follow, we conclude that theSecretary failed to meet that burden in this case.The evidence establishes that Milliken had monitored the second floordrawing room for cotton dust levels with three vertical elutriators inMarch of 1984, about three months before OSHA conducted its sampling. Atthe time, the plant was operating three shifts, 24 hours a day. Millikentook three samples during each of the three work shifts. It obtained thefollowing results:Work shift 1 (12:00 a.m.- 8:00 a.m.):249 ug\/m^3 , 265 ug\/m^3 , 115 ug\/m^3 (Average: 210 ug\/m^3 );Work shift 2 (8:00 a.m.- 4:00 p.m.):179 ug\/m^3 , 300 ug\/m^3 , 122 ug\/m^3 (Average 200 ug\/m^3 );Work shift 3 (4:00 p.m.- 12:00 p.m.):635 ug\/m^3 , 273 ug\/m^3 , 112 ug\/m^3 (Average: 340 ug\/m^3 ).After obtaining these results, Milliken required its first and thirdshift drawing room employees, who were exposed to an average level ofcotton dust in excess of the 200 ug\/m^3 PEL, to wear respirators for theperiod of time necessary to reduce their exposure to a level below thePEL, as required by 29 C.F.R. ? 1910.1043(f). First shift employees(12:00 a.m.- 8:00 a.m.) were required to wear respirators for 30 minutesduring each shift. Third shift employees (4:00 p.m.- 12:00 p.m.) wererequired to wear respirators for four hours during each shift. Milliken,as required by 29 C.F.R. ? 1910.1043(f)(1)(i)), mandated the respiratoruse as a temporary protective measure until employee exposure levelscould be lowered by engineering controls. Milliken subsequentlyinstalled these engineering controls in accordance with the requirementat 29 C.F.R. ? 1910.1043(e)(1). See note 4, _infra. _Second shift employees (8:00 a.m.- 4:00 p.m.) were not required to wearrespirators because the average results for that shift were at thepermitted limit of 200 ug\/m^3 (The violation alleged by the Secretary inthis case occurred during the second shift.). Milliken notified itsemployees that it would be \”remonitoring [the third shift] to determinewhether … the unusually high reading [of 635 ug\/m3) was the result ofmonitoring error.\”Milliken also prepared the \”Cotton Dust Engineering Compliance Plan\”, asrequired by 29 C.F.R. ? 1910.1043(e)(3)(ii). According to this document:Recent cotton dust monitoring results indicate that the second floordrawing area may be over the permissible exposure limit (PEL) for cottondust…. Retesting will be performed to determine whether the possible\”increase\” in dust level in this area is the result of sampling error.Milliken’s training manager Strickland testified that he planned toconduct further testing in the second floor drawing room sometime afterthe March 1984 sampling. However, the retesting had not yet taken placewhen the secretary sampled the room three months later.[[4\/]]Judge Sparks found that Milliken’s failure to undertake additionaltesting, after discovering borderline violations and noting thenecessity of such retesting, negates its claim that it acted withreasonable diligence. The judge found that reasonable diligence wouldhave required that resampling be performed.Milliken, citing 29 C.F.R. ? 1910.1043(d) (3) (i) and (ii), argues thatit complied with the requirements of the cotton dust standard that werein effect at the time. See note 2, _supra_. It contends that thestandard only required an employer to monitor employee cotton dustexposure either every six months or whenever there was a production,process, or control change that might result in new or additionalexposure to cotton dust. Milliken notes that its March 1984 samplingresult of 200 ug\/m3 for the second work shift was within the standard’sPEL. Because no production, process or control changes had occurredbetween its March 1984 sampling and OSHA’s June 1984 inspection,Milliken argues that it had no reason to believe that the dust levelswould be higher in June than its most recent monitoring had indicated.Since the Secretary does not dispute the accuracy of Milliken’s March1984 testing, Milliken argues that she has failed to prove that iteither knew or could have known that dust levels exceeded the PEL on theday of inspection. Milliken relies on _General Electric Co., _9 BNA OSHC1722, 1728, 1981 CCH OSHD ? 25,345, p. 31,455 (No. 13732, 1981), inwhich the Commission found that the Secretary failed to establishemployer knowledge of excessive levels of asbestos because the employerhad monitored the involved area prior to the OSHA inspection and hadfound that the levels of asbestos present were within permissible limits.The Secretary responds by arguing that Milliken’s duty to anticipatehazards to which its employees may be exposed obligated it to retest thedrawing room after its March 1984 testing showed cotton dust levelsabove permissible limits.We are persuaded that this case is essentially similar to _GeneralElectric._ In that case, the Commission held that if an employer knowsthat a regulated air contaminant is present in its facility, reasonablediligence requires it to measure the amount of the contaminant todetermine whether it is present in excessive amounts. 9 BNA OSHC at1728, 1981 CCH OSHD at p. 31,455. When the Secretary alleges that thecontaminant is present in impermissible levels, but the employer showsthat it had made measurements and determined that the concentration wasnot excessive, the burden is on the Secretary to show that theemployer’s failure to discover the excessive concentrations resultedfrom a failure to exercise reasonable diligence. _Id._In this case, Milliken tested in March of 1984 and learned that cottondust levels were at the PEL during work shift 2, slightly above thelimit in work shift 1, and well above the limit in work shift 3. Afterobtaining those results, Milliken required drawing room employeesexposed to cotton dust in excess of the PEL to wear respirators toreduce their exposure, as required by section 1910.1043(f). Thisrespirator use was required until employee exposure levels were loweredto permissible limits by engineering controls. As previously stated,Milliken installed engineering controls a few weeks after theSecretary’s inspection, and it also prepared the cotton dust engineeringplan required by section 1910.1043(e)(3)(ii).Having conducted employee monitoring in March of 1984, Milliken wasobliged–by sections 1910.1043(d)(2) and (3)(i)[[5\/]]–to re-monitor \”atleast every six months.\” Therefore, Milliken was not required tore-monitor until September of 1984, three months after the Secretary’sinspection.The Secretary had the burden of showing that Milliken’s failure tore-monitor to discover and discover the excessive concentrations foundduring the Secretary’s June inspection constituted a failure to exercisereasonable diligence. _See General Electric,_ _Id._ She has failed tomeet that burden here. The evidence shows that after obtaining theresults of its initial monitoring, Milliken took the steps required bythe cotton dust standard to reduce employee exposures. The cotton duststandard did not require it to remonitor for six months after its Marchmonitoring. The Secretary has failed to suggest any plausible basis forholding Milliken to a higher standard than this. We therefore find thatreasonable diligence did not require Milliken to retest during thethree-month period between its initial testing and the date of theSecretary’s inspection. Accordingly, we find that the Secretary hasfailed to prove that Milliken could have known of the impermissibleexposure levels during the second shift with the exercise of reasonablediligence. Item 1(a) of the citation must be vacated._II. Item 1(c): 29 C.F.R. ? 1910.1043(f)(1)(iii)_The Secretary also alleges, in item 1(c) of her citation, that Millikenviolated 29 C.F.R. ? 1910.1043(f)(l)(iii) [[6\/]] by failing to requiredrawing room operator Blackwell to wear a respirator for the length oftime needed to reduce his exposure to respirable cotton dust to thepermissible limit. We vacate this item of the citation for the samereason we vacated item 1(a). The Secretary failed to prove that Millikenknew or, with the exercise of reasonable diligence, could have known ofthe presence of impermissible levels of cotton dust that would haverequired Blackwell to wear a respirator._III. ORDER_Accordingly, the judge’s decision is reversed. Items 1(a) and 1(c) ofthe citation, and the proposed penalty of $300, are vacated.Velma MontoyaCommissionerDonald G.WisemanCommissionerDated: February 27, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.MILLIKEN & COMPANY,Respondent.OSHRC Docket No. 84-0767APPEARANCES:Ken S. Welsch, Esquire, Office of the Solicitor, U. S. Department ofLabor, Atlanta, Georgia, on behalf of complainant.CarI B. Carruth, Esquire, Thompson, Mann and Hutson,Greenville, South Carolina, on behalf of respondent._DECISION AND ORDER_SPARKS, Judge: This is a proceeding under section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. 651, _et seq._(hereinafter referred to as the \”Act\”), to review a citation issued bythe Secretary of Labor pursuant to section 9(a) of the Act.Following an inspection by the Occupational Safety and HealthAdministration, a serious citation was issued charging respondent withviolations of the cotton dust standard. The evidence establishes that anemployee was exposed to levels of cotton dust in excess of the maximumpermitted by the standard and respirators were not worn for anappropriate length of time. Respondent contends it exercised reasonablediligence in monitoring air quality and did not know nor should haveknown of the hazard.In June 1994, industrial hygienists of OSHA collected cotton dustsamples in the carding, warping and drawing areas of respondent’s NewHolland Plant located at Gainesville, Georgia. Samples from the cardingand the warping areas resulted in findings of cotton dust withinpermissible limits, but the samples from the second floor drawing roomaveraged 455.5 ug\/m3. The results were 2.275 times the 200 ug\/m3 maximumpermitted by 29 C.F.R. ? 1910.1043 (c)(l). [[1\/]] Cotton dust levels ofthat volume would require the use of a respirator from 5 to 5 1\/2 hoursduring the work shift in order to bring employee exposure withinpermissible limits as required by 29 C.F.R. ? 1910.1043(f)(1)(iii).Operator Olden Blackwell worked in the area for his entire shift exceptfor a 30- minute lunch break and wore a respirator only nine minutes(Ex. C-7; Tr. 109-110). These facts led to the issuance of a seriouscitation charging respondent with violations of the two sections forwhich a penalty of $300 was proposed. [[3\/]]IRespondent questions the accuracy of the sampling results by suggestingthat the OSHA industrial hygienists were careless in the manner theyhandled the sample cassettes before they were placed into the verticalelutriators (Tr. 141). Mr. Loren Strickland, respondent’s trainingmanager, testified that the hygienists \”did not seem to have a sense oftime urgency getting the cassette in the elutriator,\” after the top hadbeen removed and on one occasion the seal made with tape was not tightso that air could possibly get into the cassette (Tr. 142-143, 167). Strickland further stated that cassette tops were kept in the pockets ofthe hygienists subjecting them to possible contamination and the pumpsremained running at the conclusion of the sampling period therebypulling in more air when the top of the elutriator was removed (Tr.143-144). He further testified that a sample cassette with the top offwas exhibited to a group of persons after it was removed from theelutriator (Tr. 191-192).Mr. Harmon Evans, OSHA’s supervising industrial hygienist, explained indetail the procedures for calibrating and setting up the equipment,obtaining the samples, handling the sample cassettes, weighing thesamples, and computing the results (Tr. 23-41, 54-62, 88-97, 180-185).He testified that he saw no problems with procedures whereby the sampleswere obtained and none were brought to his attention (Tr. 180-181). Hestated that the validity of the sampling results was verified by the useof a blank or control cassette (Tr. 181-185), and he further testifiedthat the accuracy of the sampling results was confirmed by theuniformity of the results of samples from each of the four elutriatorswhich weighed 448 ug\/m^3 , 450 ug\/m^3 , 455 ug\/m^3 and 470 ug\/m^3 (Tr. 187).Ms. Cynthia Wolfe, an OSHA industrial hygienist, observed the samplingprocess in the second floor drawing room the entire day except for alunch hour when she was relieved by another hygienist. She periodicallychecked the pumps to insure that they were operating properly. Shedetected no problems (Ex. C-7; Tr. 104-105, 111-112).The weight of the evidence shows the results were substantiallyaccurate. The OSHA industrial hygienists are well trained professionals(Tr. 11-12, 102-103). Their testimony that there were no problems withthe results of the samples is given greater weight than that of Mr.Strickland who is not an industrial hygienist and has received notraining as an industrial hygienist (Tr. 150).Significantly, respondent produced no firm evidence that the alleged\”careless handling\” produced significantly higher sampling results. Itis concluded that the samples were reliable and within the 25 percentmargin for sampling error and accurately reflected the cotton dustlevels on June 19, 1984 (Ex. R-4; Tr. 84-85).IIRespondent contends it did not know of the violative conditions althoughit had been reasonably diligent in ascertaining cotton dust levels.In _General Electric Co.,_ 81 OSAHRC 42\/A2, 9 BNA OSHC 172, 1981 CCHOSHD ? 25,345 (No. 13732, 1981), the Review Commission stated theSecretary’s burden of proof as follows (9 BNA OSHC at p. 1727-1728):[I]n order to find an employer in violation of a standard, it is notenough to find that a condition contravening that standard existed inthe employer’s workplace. The Secretary must also prove that theemployer either knew or could have known with the exercise of reasonablediligence of the noncomplying condition. _Dunlop v. RockwellInternational,_ 540 F2.d 1283 [4 OSHC 1606] (6th Cir. 1976); _Brennan v.OSHRC (Alsea Lumber Co._), 511 F.2d 1139 [2 OSHC 1649] (9th Cir. 1975) ;_Prestressed Systems Inc,_ OSHRC Docket No. 16147 [9 OSHC 1864] (April27, 1981); _Scheel Construction Co.,_ 76 OSAHRC 138\/B6, 4 BNA OSHC 1825,1976-77 CCH OSHD ? 21,263 (No. 8687, 1976).As in _General Electric,_ Milliken periodically took air samples todetermine the level of air contamination. Respondent tested 17 or 18areas every six months to determine the level of cotton dust. Samplingof the second floor drawing room was last performed prior to the OSHAinspection on March 13 and 14, 1984, about three months before the OSHAsampling. Respondent sampled the three work shifts operating at thattime. The samples average 210 ug\/m^3 on the first shift period, 200ug\/m^3 on the second work period and 340 ug\/m3 on the third work period(Ex. C-1; Tr. 132-133). The overall average for the three work periodswas 250 ug\/m^3 (Tr. 132). The facts in _General Electric_ differsubstantially from those in this case; because, in _General Electric,_company sampling uniformly showed asbestos levels _below_ the maximumpermitted level. At Milliken the results were _above _the maximumpermitted level. Milliken officials thought that the results had beendistorted by an unusually high sample from one elutriator of 635 ug\/m 3,and noted the necessity for retesting (Ex. C-2, C-3, R-5; Tr. 163-164).Based upon the results, respirators were required to be worn byemployees on each shift for the times indicated as necessary to reducethe cotton dust exposure to permitted levels (Ex. R-5). Respirators werenot required for the second shift. Although the necessity for retestingwas noted in reports, the drawing room was not retested for cotton dust(Ex. C-2, C-3, R-5). Mr. Strickland explained the failure to remonitorthe drawing room as follows (Tr. 137):Due to business conditions, we went to a six-day shift schedule, andwhen we went to a six day shift schedule, we no longer had that workperiod [the third] in effect.The business decision led to bringing in additional drawing frames, twoof which were being erected at the time of the OSHA inspection (Tr. 138).Mr. Strickland testified he knew of no reason to account for the muchhigher levels of cotton dust found by OSHA than by his own sampling. Thesame fibers were being processed, the machines were running at the samespeed and the air conditioning and ventilation systems were unchanged[[4\/]] (Tr. 139-140). It is noted, however, that OSHA and Millikenplaced their elutriators at different locations in the room asrespondent’s equipment had to be located near electrical outlets (Ex.C-7; Tr. 152-157).Respondent’s testing established that levels of cotton dust were abovethe permitted maximum level and it had knowledge of the violativeconditions. The failure to undertake additional testing when their owntesting at the least showed borderline violations and after their ownrecords noted the necessity of such retesting negates respondent’s claimthat it acted with reasonable diligence. Reasonable diligence wouldrequire, under the circumstances, that resampling be performed.Respondent failed to do so.It is concluded that respondent was in violation of 29 C.F.R. ?1910.1043(c)(1) and 29 C.F.R. ? 1910.1043(f)(1)(iii).IIICotton dust can cause serious bodily injury or death and a citation forserious violation is warranted. The Secretary proposed a penalty of $300after giving full credit for past history and good faith. No reductionfor size is warranted. Considering the gravity of the violation and thesize, history and good faith respondent, a penalty of $300 is reasonableand appropriate._FINDINGS OF FACT_1. Respondent is engaged in the operation of a textile mill known as theNew Holland Plant, Spring Street, Gainesville, Georgia. At thatlocation, it employed approximately 400 employees. Goods produced at thefacility were shipped to places outside the State of Georgia (Tr. 9, 13).2. Cotton is regularly used and worked on at various locations withinthe New Holland Plant. Cotton dust samples are taken each six months at17 or 18 locations (Ex. C-3; Tr. 175).3. On March 13 and 14, 1984, respondent sampled for cotton dust at theSecond Floor Drawing Room during shift periods one, two and three. Thesamples revealed average findings of cotton dust of 210 ug\/m^3 for thefirst period, 200 ug\/m^3 for the second period and 340 ug\/m^3 for thethird period. The accuracy of the samples is questionable because of onesample of 635 ug\/m^3 which was far out of line with the results of allother samples (Ex. C-1; Tr. 133-134).4. As a result of the findings shown in paragraph three above,respondent noted in an engineering plan \”that the second floor drawingarea may be over the permissible exposure limit (PEL) for cottondust…\”, cited the need for retesting to determine whether the increasein dust was due to sampling error, required the use of respirators andset forth plans for engineering controls to insure that dust within thearea was brought within the PEL (Ex. C-2).5. Respondent did not remonitor the second floor drawing room because ofa change of work schedule which abolished the third work period (Tr. 137).6. In June 1984, industrial hygienists from OSHA conducted cotton dustsampling of the second floor drawing room, carding and warping areas.The carding and warping areas showed cotton dust levels withinpermissible limits (Ex . R-2, R-3; Tr . 72-78) .7. Sampling in the drawing room obtained average cotton dust levels of455.5 ug\/m^3 The vertical elutriators gave samples as follows (Ex. C-5;Tr. 41, 62):#1 470 ug\/m^3 #3 450 ug\/m^3#2 455 ug\/m^3 #4 448 ug\/m^38. Studies by industry and university researchers have shown variationsin findings of cotton dust samples using vertical elutriators. Nosampling and analytical error (SAE) factor has been established by OSHA,but OSHA generally authorized a citation for violation if the samplingresults exceed the PEL by 25 percent (Ex. R-4; Tr. 84-85, 95).9. OSHA personnel carefully set up the equipment, and handled, processedand weighed the cotton dust samples so that the results obtained weresubstantially accurate and reliable (Tr. 24-41, 54-62, 88-92, 103-105,107, 111, 180-182, 187).10. Olden Blackwell, the drawing operator, was exposed to cotton dustapproximately 2.275 times the 200 ug\/m3 permitted by standards at ?1910.1043 (c) (1).11. Employee Olden Blackwell took a 30-minute lunch break and wore arespirator for approximately 9 minutes. Considering the level of cottondust in the room, an employee would have to wear a respirator between 5and 5 1\/2 hours to be exposed to dust levels within permissible limits(Ex. C-7 p. 40-41; Tr. 50, 109-110)._CONCLUSIONS OF LAW_1. Respondent is subject to the Act and this proceeding.2. Respondent knew or with the exercise of reasonable diligence couldhave known of the hazardous conditions.3. Respondent violated 29 C.F.R. ? 1910.1043(c)(1) and 29 C.F.R. ?1910.1043(f)(1)(iii) under circumstances constituting a seriousviolation of the Act.4. A penalty of $300 is appropriate._ORDER _1. Items 1a and 1c of the serious citation are affirmed.2. Item 1b is vacated.3. A penalty of $300 is assessed.Dated this 16th day of July, 1985.JOE D. SPARKSJudgeFOOTNOTES:[[1\/]] Chairman Foulke did not participate in this decision.[[2\/]] Since the citation in this case was issued, the Secretary hasextensively revised the cotton dust standard. See 29 C.F.R. ? 1910.1043,effective February 11, 1986; 50 Fed. Reg. 51120, 51173 (1985); 51 Fed.Reg. 24325 (1986); 54 Fed. Reg. 24334 (1989).[[3\/]] Milliken argued, in its review brief, that the Secretary failedto prove noncompliance with the cited standard because the verticalelutriator is an instrument of unproven reliability. Milliken contendedthat there is no sampling and analytical error (\”SAE\”) factor that isrecognized as being reliable for vertical elutriators. It claimed thatthe Secretary’s decision to assign a 25% SAE factor to her sampling withvertical elutriators was arbitrary. Because the vertical elutriator isthe only device specifically mentioned by the cited standard asappropriate for measuring cotton dust concentrations, Milliken’sarguments appeared to be challenging the validity of the cotton duststandard.In response to this argument, the Secretary moved for the admission ofcertain documents in an effort to establish that Milliken was barredfrom attacking both the reliability of the vertical elutriator and thevalidity of the cotton dust standard. However, in its reply brief,Milliken stated that it \”does not challenge the validity of the cottondust standard.\” Instead, it \”only demands that the Secretary honestlyand accurately measure cotton dust concentrations …. \” It furtherargues that to \”meet its burden of proof … the Secretary mustdemonstrate that the vertical elutriator has been accurately calibratedand cotton dust samples have been properly taken.\” Because Milliken inits reply brief has abandoned its challenge to the validity of thecotton dust standard, we conclude that this issue is no longer beforeus, and the Secretary’s motion to admit documents seeking to barMilliken’s challenge to the validity of the standard is accordingly denied.[[4\/]] In a matter of weeks after the Secretary completed herinspection, Milliken had installed engineering controls in its secondfloor drawing room. By August of 1984, when Milliken next monitored forcotton dust levels in the room, the results averaged a permissible 96ug\/m^3 .[[5\/]] At the time of the alleged violation, see note 2 supra, sections1910.1043(d)(2) and (3)(i) provided:? 1910.1043 _Cotton dust._* * *(d) _Exposure monitoring and measurement–_* * *(2) _Initial monitoring,_ Each employer who has a place of employment inwhich cotton dust is present, shall conduct monitoring by obtainingmeasurements which are representative of the exposure of all employeesto airborne concentrations of lint-free respirable cotton dust over aneight-hour period. The sampling program shall include at least onedetermination during each shift for each work area.(3) _Periodic monitoring._ (i) The employer shall repeat themeasurements required by paragraph (d)(2) of this section at least everysix months.[[6\/]] At the time of the inspection, this standard provided:? 1910.1043 _Cotton dust._* * *(f) _Use of respirators_–(1) _General._ Where the use of respirators isrequired under this section, the employer shall provide, at no cost tothe employee, and assure the use of respirators which comply with therequirements of this paragraph (f). Respirators shall be used in thefollowing circumstances:* * *(iii) In work situations where feasible engineering and work practicecontrols are not yet sufficient to reduce exposure to or below thepermissible exposure limit[.][[1\/]] Section 1910.1043(c)(1) of 29 C.F.R. states as follows:(c) _Permissible exposure limits._ (1) The employer shall assure that noemployee who is exposed to cotton dust in yarn manufacturing is exposedto airborne concentrations of lint-free respirable cotton dust greaterthan 200 ug\/m^3 mean concentration, averaged over an eight-hour period,as measured by a vertical elutriator or a method of equivalent accuracyand precision.[[2\/]] Section 1910.1043(f)(1)(iii) of 29 C.F.R. states as follows:(f) _Use of respirators_–(1) _General._ Where the use ofrespirators is required under this section, the employer shall provide,at no cost to the employee, and assure the use of respirators whichcomply with the requirements of this paragraph (f). Respirators shall beused in the following circumstances:(iii) In work situations where feasible engineering and work practicecontrols are not yet sufficient to reduce exposure to or below thepermissible exposure limit; and[[3\/]] The two alleged violations of the cited standards were combinedinto a single item for which one penalty was proposed. A third subitemalleging a violation of 29 C.F.R. ? 1910.1043(e)(1) was dismissed at thehearing (Tr. 7). Respondent moved to dismiss subitem 1c which alleged afailure to wear a respirator pursuant to 29 C.F.R. ?1910.1043(f)(1)(iii) as redundant and a duplication of the charge ofviolating 29 C.F.R. ? 1910.1043(c)(1) alleged in subitem 1a. It isnoted, however, that the standard places a separate obligation uponrespondent and in any event respondent is not prejudiced by the citationas the two subitems were combined into a single alleged violation. Themotion to dismiss is denied.[[4\/]] Following its own testing, Milliken contracted with an outsidefirm to make engineering changes; but there is no indication that thework actually began in the drawing room prior to the inspection by OSHA(Tr. 137 155). After the installation of engineering controls, thedrawing room was retested in August 1984 and showed average cotton dustlevels of 96 ug\/m^3 (Tr. 176)”