“Docket No. 84-0767 SECRETARY OF LABOR, Complainant,v.MILLIKEN & COMPANY,Respondent.OSHRC Docket No. 84-0767DECISION BEFORE: MONTOYA and WISEMAN, Commissioners.[[1\/]]BY THE COMMISSION:The Secretary of Labor (\”Secretary\”) issued a seriouscitation to Milliken & Company (\”Milliken\”) following an inspection of itsNew Holland plant in Gainesville, Georgia. The citation alleges that Milliken violated twoprovisions of the cotton dust standard, 29 C.F.R. ? 1920.1043. Former Review CommissionAdministrative Law Judge Joe D. Sparks affirmed both items of the citation and assessed atotal penalty of $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. Samplestaken in the second floor drawing room during the second work shift, from 8:00 am to 2:30pm, registered employee exposure levels–in micrograms of respirable cotton dust per cubicmeter of air (ug\/m3)–of 448 ug\/m3, 450 ug\/m3, 455 ug\/m3and 470 ug\/m3. The Secretary subsequently issued a citation alleging thatMilliken had failed to comply with 29 C.F.R. ? 1910.1043(c)(1), by exposing its employeesto levels of respirable cotton dust in excess of the permissible exposure limit(\”PEL\”) of 200 ug\/m3. At the time of the alleged violation, the standardprovided[[2\/]]:? 1910.1043 Cotton dust.* * *(c) Permissible exposure limits. (1) The employer shall assure that no employee whois exposed to cotton dust in yarn manufacturing is exposed to airborne concentrations oflint-free respirable cotton dust greater than 200 ug\/m3 mean concentration,averaged over an eight-hour period, as measured by a vertical elutriator or a method ofequivalent accuracy and precision.To prove a violation of a standard, the Secretary mustestablish: (1) the applicability of the standard, (2) the existence of noncomplyingconditions, (3) employee exposure or access, and (4) that the employer knew or with theexercise of reasonable diligence could have known of the allegedly violative conditions. Dun-ParEngineered Form Co., 12 BNA 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.Milliken was manufacturing a blend of polyester and cotton yarn in its second floordrawing room on the days of the inspection.\u00a0 The standard applies to cotton dustexposure during \”yarn manufacturing\”. 29 C.F.R. ? 1910.1043(a)(1).There is also no dispute that employees were exposed to thecotton dust. Employee Olden Blackwell was present in the drawing room for most of the workday, and two other employees were in the room for a part of the day.The existence of noncomplying conditions and Milliken’sknowledge of them are in dispute. We first consider whether the Secretary established theexistence of noncomplying conditions.A. Background and EvidenceDuring their inspection of the drawing room, the Secretary’sindustrial hygienists used vertical elutriators, the sampling devices referred to in thestandard, to measure the level of respirable cotton dust in the room. Four elutriatorswere positioned in different parts of the room.Cylindrical in shape, a vertical elutriator is divided intothree interconnected sections. Pumps draw air upward through the bottom section of theelutriator. The air flows upward until it reaches the cassette portion of the elutriator,where a cassette filter absorbs dust particles fifteen microns and smaller in size;heavier particles fall to the bottom of the elutriator. (To ensure the accuracy ofsamples, 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. Thesamples are weighed on an electron balance. The net weight of the sample is determined bysubtracting the weight of the cassette before sampling from the weight of the cassetteafter sampling. This net weight is then adjusted by subtracting the weight gain of a\”control\” filter, which is contained throughout the sampling period in acassette that is not connected 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 forDisease Control and an industrial hygienist for OSHA for eleven years, testified in detailabout the sampling procedures he employed during the inspection of Milliken’s New Hollandplant. Evans testified that he followed proper procedures in desiccating and weighing thefilters and then reweighing each filter three times for accuracy the next day. Evans alsotestified that the accuracy of the sampling results was confirmed by the use of a controlcassette and by the uniformity of the results of the samples from each of the fourvertical elutriators– 448 ug\/m3, 450 ug\/m3, 455 ug\/m3 and 470 ug\/m3.The closely-bunched results suggested to Evans that there were \”no unusualcircumstances that could have increased the weight of those filters.\” He was notaware of any problems with his handling of the cassettes.The Secretary’s other industrial hygienist who appeared as awitness at the hearing, Cynthia Wolfe, had worked with OSHA for five years. Wolfetestified that she had been in the drawing room for the entire sampling day (with theexception of an hour for lunch, during which she was relieved by another industrialhygienist). Throughout the day, Wolfe observed the vertical elutriators and the employeesworking in the drawing room to make sure no one tampered with the sampling devices. Shealso checked the pumps periodically. She did not observe any problems with either theelutriators or the pumps.Milliken’s training manager, Loren Strickland, was alsoresponsible for supervising Milliken’s own sampling of cotton dust exposure at the plant.Although he had not personally conducted the cotton dust monitoring, he had supervised thetaking of 120-150 cotton dust samples. Strickland had no formal training as an industrialhygienist. He testified that, during the OSHA inspection, he had observed the Secretary’sindustrial hygienists while they were sampling the drawing room exposures. Stricklandalleged that the hygienists used a number of procedures that might have caused samplingerrors: (1) an unspecified number of sampling cassettes were briefly exposed to unfilteredroom dust outside the elutriators, both while the cassettes were still attached to workingpumps and while they were being handled separately; (2) tape intended to seal one cassetteonto an elutriator did not form a complete seal and therefore could have allowedunfiltered air to get through to the cassette; and (3) the tops of cassettes were kept inthe pockets of the Secretary’s hygienists, where they could acquire lint that could betransferred to cassette filters when the tops were put onto the filters.B. The Decision of Judge SparksThe judge found that the sampling results obtained by theSecretary were substantially accurate:OSHA personnel carefully set up the equipment, and handled,processed and 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, than to testimony givenby Milliken training manager Strickland alleging that the sampling had been tainted. Thejudge described OSHA’s industrial hygienists as \”well trained professionals,\”while noting that training manager Strickland had received no training as an industrialhygienist. He concluded that Milliken had failed to produce \”firm evidence\” thatcareless handling of the samples by the industrial hygienists had produced test resultsthat were significantly higher than the actual cotton dust levels in the sampled workareas.C. The Arguments of the PartiesMilliken argues that the Secretary’s cotton dust samples werenot properly taken and, therefore, did not yield accurate results [[3\/]]. It argues thattraining manager Strickland had more experience in cotton dust sampling with verticalelutriators than did the Secretary’s industrial hygienists. Accordingly, it continues,Strickland’s testimony demonstrates that the Secretary’s results were inaccurate becausethe samples were mishandled. Milliken also argues that it was unlikely that the cassettefilters used by the Secretary during sampling were weighed properly because the weight ofeach filter came out exactly the same each of the three times it was weighed.The Secretary contends that the judge properly gave greaterweight to the testimony of her well-trained industrial hygienist than to the testimony ofMilliken’s training manager, who had received no training as an industrial hygienist. Weagree. We see no reason to disturb the judge’s finding that the testimony of theSecretary’s professional industrial hygienists should be given greater weight that thetestimony of Milliken’s training manager, who had not been trained as an industrialhygienist. See Kelly Springfield Tire Co., 10 BNA OSHC 1970, 1973, 1982 CCH OSHD ?26,223, p. 33,113 (No.78-4555, 1982)(safety experts familiar with general workplacecondition recognized explosion hazard, although respondent’s plant personnel did not). Theindustrial hygienists testified that there were no problems with the sampling cassettes orthe elutriators. They employed a control cassette that helped ensure reliable results, andthe results obtained from the secretary’s sampling with four different verticalelutriators were very closely bunched together at 448 ug\/m3, 450 ug,\/m3,455 ug\/m3 and 470 ug\/m3. Taken together, this evidence is sufficientto establish that the sampling results were substantially accurate; the results fallingwithin such a narrow range is the strongest proof of their accuracy. We therefore acceptthe judge’s finding that Milliken employee Blackwell was exposed to impermissible levelsof cotton dust in the second 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 isnot enough to find that a condition contravening that standard existed at the employer’sworkplace. The Secretary must also prove that the employer either knew or, with theexercise of reasonable diligence, could have known of the noncomplying condition. SeeDun-Par, Engineered Form Co., supra. For the reasons that follow, we concludethat the Secretary failed to meet that burden in this case.The evidence establishes that Milliken had monitored the second floor drawing room forcotton dust levels with three vertical elutriators in March of 1984, about three monthsbefore OSHA conducted its sampling. At the time, the plant was operating three shifts, 24hours a day. Milliken took three samples during each of the three work shifts. It obtainedthe following results:Work shift 1 (12:00 a.m.- 8:00 a.m.):249 ug\/m3, 265 ug\/m3, 115 ug\/m3 (Average: 210 ug\/m3);Work shift 2 (8:00 a.m.- 4:00 p.m.):179 ug\/m3, 300 ug\/m3, 122 ug\/m3 (Average 200 ug\/m3);Work shift 3 (4:00 p.m.- 12:00 p.m.):635 ug\/m3, 273 ug\/m3, 112 ug\/m3 (Average: 340 ug\/m3).After obtaining these results, Milliken required its first and third shift drawing roomemployees, who were exposed to an average level of cotton dust in excess of the 200 ug\/m3PEL, to wear respirators for the period of time necessary to reduce their exposure to alevel below the PEL, 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 minutes during eachshift. Third shift employees (4:00 p.m.- 12:00 p.m.) were required to wear respirators forfour hours during each shift. Milliken, as required by 29 C.F.R. ? 1910.1043(f)(1)(i)),mandated the respirator use as a temporary protective measure until employee exposurelevels could be lowered by engineering controls. Milliken subsequently installed theseengineering controls in accordance with the requirement at 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 wear respiratorsbecause the average results for that shift were at the permitted limit of 200 ug\/m3(The violation alleged by the Secretary in this case occurred during the second shift.).Milliken notified its employees that it would be \”remonitoring [the third shift] todetermine whether … the unusually high reading [of 635 ug\/m3) was the result ofmonitoring error.\”Milliken also prepared the \”Cotton Dust EngineeringCompliance Plan\”, as required by 29 C.F.R. ? 1910.1043(e)(3)(ii). According to thisdocument:Recent cotton dust monitoring results indicate that the secondfloor drawing area may be over the permissible exposure limit (PEL) for cotton dust….Retesting will be performed to determine whether the possible \”increase\” in dustlevel in this area is the result of sampling error.Milliken’s training manager Strickland testified that he planned to conduct furthertesting in the second floor drawing room sometime after the March 1984 sampling. However,the retesting had not yet taken place when the secretary sampled the room three monthslater.[[4\/]]Judge Sparks found that Milliken’s failure to undertake additional testing, afterdiscovering borderline violations and noting the necessity of such retesting, negates itsclaim that it acted with reasonable diligence. The judge found that reasonable diligencewould have required that resampling be performed.Milliken, citing 29 C.F.R. ? 1910.1043(d) (3) (i) and (ii),argues that it complied with the requirements of the cotton dust standard that were ineffect at the time. See note 2, supra. It contends that the standard only requiredan employer to monitor employee cotton dust exposure either every six months or wheneverthere was a production, process, or control change that might result in new or additionalexposure to cotton dust. Milliken notes that its March 1984 sampling result of 200 ug\/m3for the second work shift was within the standard’s PEL. Because no production, process orcontrol changes had occurred between its March 1984 sampling and OSHA’s June 1984inspection, Milliken argues that it had no reason to believe that the dust levels would behigher in June than its most recent monitoring had indicated.Since the Secretary does not dispute the accuracy of Milliken’sMarch 1984 testing, Milliken argues that she has failed to prove that it either knew orcould have known that dust levels exceeded the PEL on the day of inspection. Millikenrelies on General Electric Co., 9 BNA OSHC 1722, 1728, 1981 CCH OSHD ? 25,345, p.31,455 (No. 13732, 1981), in which the Commission found that the Secretary failed toestablish employer knowledge of excessive levels of asbestos because the employer hadmonitored the involved area prior to the OSHA inspection and had found that the levels ofasbestos present were within permissible limits.The Secretary responds by arguing that Milliken’s duty toanticipate hazards to which its employees may be exposed obligated it to retest thedrawing room after its March 1984 testing showed cotton dust levels above permissiblelimits.We are persuaded that this case is essentially similar to GeneralElectric. In that case, the Commission held that if an employer knows that a regulatedair contaminant is present in its facility, reasonable diligence requires it to measurethe amount of the contaminant to determine whether it is present in excessive amounts. 9BNA OSHC at 1728, 1981 CCH OSHD at p. 31,455. When the Secretary alleges that thecontaminant is present in impermissible levels, but the employer shows that it had mademeasurements and determined that the concentration was not excessive, the burden is on theSecretary to show that the employer’s failure to discover the excessive concentrationsresulted from a failure to exercise reasonable diligence. Id.In this case, Milliken tested in March of 1984 and learned thatcotton dust levels were at the PEL during work shift 2, slightly above the limit in workshift 1, and well above the limit in work shift 3. After obtaining those results, Millikenrequired drawing room employees exposed to cotton dust in excess of the PEL to wearrespirators to reduce their exposure, as required by section 1910.1043(f). This respiratoruse was required until employee exposure levels were lowered to permissible limits byengineering controls. As previously stated, Milliken installed engineering controls a fewweeks after the Secretary’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, Millikenwas obliged–by sections 1910.1043(d)(2) and (3)(i)[[5\/]]–to re-monitor \”at leastevery six months.\” Therefore, Milliken was not required to re-monitor until Septemberof 1984, three months after the Secretary’s inspection.The Secretary had the burden of showing that Milliken’s failure to re-monitor to discoverand discover the excessive concentrations found during the Secretary’s June inspectionconstituted a failure to exercise reasonable diligence.\u00a0 See General Electric,Id. She has failed to meet that burden here. The evidence shows that afterobtaining the results of its initial monitoring, Milliken took the steps required by thecotton dust standard to reduce employee exposures. The cotton dust standard did notrequire it to remonitor for six months after its March monitoring. The Secretary hasfailed to suggest any plausible basis for holding Milliken to a higher standard than this.We therefore find that reasonable diligence did not require Milliken to retest during thethree-month period between its initial testing and the date of the Secretary’s inspection.Accordingly, we find that the Secretary has failed to prove that Milliken could have knownof the impermissible exposure levels during the second shift with the exercise ofreasonable diligence. 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 Milliken violated 29 C.F.R.? 1910.1043(f)(l)(iii) [[6\/]] by failing to require drawing room operator Blackwell towear a respirator for the length of time needed to reduce his exposure to respirablecotton dust to the permissible limit.\u00a0 We vacate this item of the citation for thesame reason we vacated item 1(a). The Secretary failed to prove that Milliken knew or,with the exercise of reasonable diligence, could have known of the presence ofimpermissible levels of cotton dust that would have required Blackwell to wear arespirator.III. ORDERAccordingly, the judge’s decision is reversed. Items 1(a) and1(c) of the citation, and the proposed penalty of $300, are vacated.Velma MontoyaCommissionerDonald G.WisemanCommissionerDated: February 27, 1991SECRETARY OF LABOR,Complainant,v.MILLIKEN & COMPANY,Respondent.OSHRC Docket No. 84-0767APPEARANCES: Ken S. Welsch, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta,Georgia, on behalf of complainant.CarI B. Carruth, Esquire, Thompson, Mann and Hutson, Greenville, South Carolina, on behalf of respondent.DECISION AND ORDERSPARKS, Judge: This is a proceeding under section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafterreferred to as the \”Act\”), to review a citation issued by the Secretary of Laborpursuant to section 9(a) of the Act.Following an inspection by the Occupational Safety and HealthAdministration, a serious citation was issued charging respondent with violations of thecotton dust standard. The evidence establishes that an employee was exposed to levels ofcotton dust in excess of the maximum permitted by the standard and respirators were notworn for an appropriate length of time. Respondent contends it exercised reasonablediligence in monitoring air quality and did not know nor should have known of the hazard.In June 1994, industrial hygienists of OSHA collected cottondust samples in the carding, warping and drawing areas of respondent’s New Holland Plantlocated at Gainesville, Georgia. Samples from the carding and the warping areas resultedin findings of cotton dust within permissible limits, but the samples from the secondfloor drawing room averaged 455.5 ug\/m3. The results were 2.275 times the 200 ug\/m3maximum permitted by 29 C.F.R. ? 1910.1043 (c)(l). [[1\/]] Cotton dust levels of thatvolume would require the use of a respirator from 5 to 5 1\/2 hours during the work shiftin order to bring employee exposure within permissible limits as required by 29 C.F.R.\u00a0 ? 1910.1043(f)(1)(iii). Operator Olden Blackwell worked in the area for his entire shift except for a 30- minutelunch break and wore a respirator only nine minutes (Ex. C-7; Tr. 109-110). These factsled to the issuance of a serious citation charging respondent with violations of the twosections for which a penalty of $300 was proposed. [[3\/]]IRespondent questions the accuracy of the sampling results bysuggesting that the OSHA industrial hygienists were careless in the manner they handledthe sample cassettes before they were placed into the vertical elutriators (Tr. 141). Mr.Loren Strickland, respondent’s training manager, testified that the hygienists \”didnot seem to have a sense of time urgency getting the cassette in the elutriator,\”after the top had been 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).\u00a0 Stricklandfurther stated that cassette tops were kept in the pockets of the hygienists subjectingthem to possible contamination and the pumps remained running at the conclusion of thesampling period thereby pulling in more air when the top of the elutriator was removed(Tr. 143-144). He further testified that a sample cassette with the top off was exhibitedto a group of persons after it was removed from the elutriator (Tr. 191-192).Mr. Harmon Evans, OSHA’s supervising industrial hygienist,explained in detail the procedures for calibrating and setting up the equipment, obtainingthe samples, handling the sample cassettes, weighing the samples, and computing theresults (Tr. 23-41, 54-62, 88-97, 180-185). He testified that he saw no problems withprocedures whereby the samples were obtained and none were brought to his attention (Tr.180-181). He stated that the validity of the sampling results was verified by the use of ablank or control cassette (Tr. 181-185), and he further testified that the accuracy of thesampling results was confirmed by the uniformity of the results of samples from each ofthe four elutriators which weighed 448 ug\/m3, 450 ug\/m3, 455 ug\/m3and 470 ug\/m3 (Tr. 187).Ms. Cynthia Wolfe, an OSHA industrial hygienist, observed thesampling process in the second floor drawing room the entire day except for a lunch hourwhen she was relieved by another hygienist. She periodically checked the pumps to insurethat they were operating properly. She detected 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 with the results of the samples isgiven greater weight than that of Mr. Strickland who is not an industrial hygienist andhas received no training as an industrial hygienist (Tr. 150).Significantly, respondent produced no firm evidence that thealleged \”careless handling\” produced significantly higher sampling results. Itis concluded that the samples were reliable and within the 25 percent margin for samplingerror and accurately reflected the cotton dust levels on June 19, 1984 (Ex. R-4; Tr.84-85).IIRespondent contends it did not know of the violative conditionsalthough it had been reasonably diligent in ascertaining cotton dust levels.In General Electric Co., 81 OSAHRC 42\/A2, 9 BNA OSHC172, 1981 CCH OSHD ? 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, itis not enough to find that a condition contravening that standard existed in theemployer’s workplace. The Secretary must also prove that the employer either knew or couldhave known with the exercise of reasonable diligence of the noncomplying condition. Dunlopv. Rockwell International, 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) ; PrestressedSystems Inc, OSHRC Docket No. 16147 [9 OSHC 1864] (April 27, 1981); ScheelConstruction 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 airsamples to determine the level of air contamination. Respondent tested 17 or 18 areasevery six months to determine the level of cotton dust. Sampling of the second floordrawing room was last performed prior to the OSHA inspection on March 13 and 14, 1984,about three months before the OSHA sampling. Respondent sampled the three work shiftsoperating at that time. The samples average 210 ug\/m3 on the first shiftperiod, 200 ug\/m3 on the second work period and 340 ug\/m3 on the third workperiod (Ex. C-1; Tr. 132-133). The overall average for the three work periods was 250 ug\/m3(Tr. 132). The facts in General Electric differ substantially from those in thiscase; because, in General Electric, company sampling uniformly showed asbestoslevels below the maximum permitted level. At Milliken the results were above themaximum permitted level. Milliken officials thought that the results had been distorted byan unusually high sample from one elutriator of 635 ug\/m 3, and noted the necessity forretesting (Ex. C-2, C-3, R-5; Tr. 163-164). Based upon the results, respirators wererequired to be worn by employees on each shift for the times indicated as necessary toreduce the cotton dust exposure to permitted levels (Ex. R-5). Respirators were notrequired for the second shift. Although the necessity for retesting was noted in reports,the drawing room was not retested for cotton dust (Ex. C-2, C-3, R-5). Mr. Stricklandexplained the failure to remonitor the drawing room as follows (Tr. 137):Due to business conditions, we went to a six-day shiftschedule, and when we went to a six day shift schedule, we no longer had that work period[the third] in effect.The business decision led to bringing in additional drawingframes, two of which were being erected at the time of the OSHA inspection (Tr. 138).Mr. Strickland testified he knew of no reason to account forthe much higher levels of cotton dust found by OSHA than by his own sampling. The samefibers were being processed, the machines were running at the same speed and the airconditioning and ventilation systems were unchanged [[4\/]] (Tr. 139-140). It is noted,however, that OSHA and Milliken placed their elutriators at different locations in theroom as respondent’s equipment had to be located near electrical outlets (Ex. C-7; Tr.152-157).Respondent’s testing established that levels of cotton dustwere above the permitted maximum level and it had knowledge of the violative conditions.The failure to undertake additional testing when their own testing at the least showedborderline violations and after their own records noted the necessity of such retestingnegates respondent’s claim that it acted with reasonable diligence. Reasonable diligencewould require, under the circumstances, that resampling be performed. Respondent failed todo 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 for serious violationis warranted. The Secretary proposed a penalty of $300 after giving full credit for pasthistory and good faith. No reduction for size is warranted. Considering the gravity of theviolation and the size, history and good faith respondent, a penalty of $300 is reasonableand appropriate. FINDINGS OF FACT1. Respondent is engaged in the operation of a textile millknown as the New Holland Plant, Spring Street, Gainesville, Georgia. At that location, itemployed approximately 400 employees. Goods produced at the facility were shipped toplaces outside the State of Georgia (Tr. 9, 13).2. Cotton is regularly used and worked on at various locationswithin the New Holland Plant. Cotton dust samples are taken each six months at 17 or 18locations (Ex. C-3; Tr. 175).3. On March 13 and 14, 1984, respondent sampled for cotton dustat the Second Floor Drawing Room during shift periods one, two and three. The samplesrevealed average findings of cotton dust of 210 ug\/m3 for the first period, 200ug\/m3 for the second period and 340 ug\/m3 for the third period. Theaccuracy of the samples is questionable because of one sample of 635 ug\/m3which was far out of line with the results of all other 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 drawing area may beover the permissible exposure limit (PEL) for cotton dust…\”, cited the need forretesting to determine whether the increase in dust was due to sampling error, requiredthe use of respirators and set forth plans for engineering controls to insure that dustwithin the area was brought within the PEL (Ex. C-2).5. Respondent did not remonitor the second floor drawing roombecause of a change of work schedule which abolished the third work period (Tr. 137).6. In June 1984, industrial hygienists from OSHA conducted cotton dust sampling of thesecond floor drawing room, carding and warping areas. The carding and warping areas showedcotton dust levels within permissible limits (Ex . R-2, R-3; Tr . 72-78) .7. Sampling in the drawing room obtained average cotton dustlevels of 455.5 ug\/m3 The vertical elutriators gave samples as follows (Ex.C-5; Tr. 41, 62):#1 470 ug\/m3 #3 450 ug\/m3 #2 455 ug\/m3 #4 448 ug\/m38. Studies by industry and university researchers have shownvariations in findings of cotton dust samples using vertical elutriators. No sampling andanalytical error (SAE) factor has been established by OSHA, but OSHA generally authorizeda citation for violation if the sampling results exceed the PEL by 25 percent (Ex. R-4;Tr. 84-85, 95).9. OSHA personnel carefully set up the equipment, and handled,processed and 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 tocotton dust approximately 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 andwore a respirator for approximately 9 minutes. Considering the level of cotton dust in theroom, an employee would have to wear a respirator between 5 and 5 1\/2 hours to be exposedto dust levels within permissible limits (Ex. C-7 p. 40-41; Tr. 50, 109-110).CONCLUSIONS OF LAW1. Respondent is subject to the Act and this proceeding.2. Respondent knew or with the exercise of reasonable diligencecould have known of the hazardous conditions. 3. Respondent violated 29 C.F.R. ? 1910.1043(c)(1) and 29C.F.R. ? 1910.1043(f)(1)(iii) under circumstances constituting a serious violation of theAct.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. SPARKSJudge FOOTNOTES: [[1\/]] Chairman Foulke did not participate in this decision.[[2\/]] Since the citation in this case was issued, theSecretary has extensively 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 Secretaryfailed to prove noncompliance with the cited standard because the vertical elutriator isan instrument of unproven reliability. Milliken contended that there is no sampling andanalytical error (\”SAE\”) factor that is recognized as being reliable forvertical elutriators. It claimed that the Secretary’s decision to assign a 25% SAE factorto her sampling with vertical elutriators was arbitrary. Because the vertical elutriatoris the only device specifically mentioned by the cited standard as appropriate formeasuring cotton dust concentrations, Milliken’s arguments appeared to be challenging thevalidity of the cotton dust standard.In response to this argument, the Secretary moved for theadmission of certain documents in an effort to establish that Milliken was barred fromattacking both the reliability of the vertical elutriator and the validity of the cottondust standard. However, in its reply brief, Milliken stated that it \”does notchallenge the validity of the cotton dust standard.\” Instead, it \”only demandsthat the Secretary honestly and accurately measure cotton dust concentrations …. \”It further argues that to \”meet its burden of proof … the Secretary mustdemonstrate that the vertical elutriator has been accurately calibrated and cotton dustsamples have been properly taken.\” Because Milliken in its reply brief has abandonedits challenge to the validity of the cotton dust standard, we conclude that this issue isno longer before us, 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 her inspection, Milliken hadinstalled engineering controls in its second floor drawing room. By August of 1984, whenMilliken next monitored for cotton dust levels in the room, the results averaged apermissible 96 ug\/m3.[[5\/]] At the time of the alleged violation, see note 2 supra, sections 1910.1043(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 in which cottondust is present, shall conduct monitoring by obtaining measurements which arerepresentative of the exposure of all employees to airborne concentrations of lint-freerespirable cotton dust over an eight-hour period. The sampling program shall include atleast one determination during each shift for each work area.(3) Periodic monitoring. (i) The employer shall repeatthe measurements required by paragraph (d)(2) of this section at least every six 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 to the employee, andassure the use of respirators which comply with the requirements of this paragraph (f).Respirators shall be used in the following circumstances:* * * (iii) In work situations where feasible engineering and work practice controls are not yetsufficient to reduce exposure to or below the permissible exposure limit[.][[1\/]] Section 1910.1043(c)(1) of 29 C.F.R. states as follows:(c) Permissible exposure limits. (1) The employer shallassure that no employee who is exposed to cotton dust in yarn manufacturing is exposed toairborne concentrations of lint-free respirable cotton dust greater than 200 ug\/m3mean concentration, averaged over an eight-hour period, as measured by a verticalelutriator or a method of equivalent accuracy and precision.[[2\/]] Section 1910.1043(f)(1)(iii) of 29 C.F.R. states asfollows:(f) Use of respirators–(1) General. Where theuse ofrespirators is required under this section, the employer shall provide, at no cost to theemployee, and assure the use of respirators which comply with the requirements of thisparagraph (f). Respirators shall be used in the following circumstances:(iii) In work situations where feasible engineering and workpractice controls are not yet sufficient to reduce exposure to or below the permissibleexposure limit; and[[3\/]] The two alleged violations of the cited standards were combined into a single itemfor which one penalty was proposed. A third subitem alleging a violation of 29 C.F.R. ?1910.1043(e)(1) was dismissed at the hearing (Tr. 7). Respondent moved to dismiss subitem1c which alleged a failure to wear a respirator pursuant to 29 C.F.R. ?1910.1043(f)(1)(iii) as redundant and a duplication of the charge of violating 29 C.F.R.? 1910.1043(c)(1) alleged in subitem 1a. It is noted, however, that the standard places aseparate obligation upon respondent and in any event respondent is not prejudiced by thecitation as the two subitems were combined into a single alleged violation. The motion todismiss is denied.[[4\/]] Following its own testing, Milliken contracted with anoutside firm to make engineering changes; but there is no indication that the workactually began in the drawing room prior to the inspection by OSHA (Tr. 137 155). Afterthe installation of engineering controls, the drawing room was retested in August 1984 andshowed average cotton dust levels of 96 ug\/m3 (Tr. 176)”