Docket Nos. 76-5162; 77-773; 78-4478

AMERICAN CAN COMPANY

OSHRC Docket Nos. 76-5162; 77-773; 78-4478

Occupational Safety and Health Review Commission

January 29, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor,U.S. Department of Labor

Albert H. Ross, Regional Solicitor, U.S. Department of Labor

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Michael Robilotto, American Can Company, for the employer

Jerome Ackerman and Terry Coleman, Covington & Burling, for the employer

W. L. McCarthy, President, United States Steelworkers of America, Local 1478-Sub. Dist. 4- AFL-CIO, for the employees

OPINION:

DECISION

BY THE COMMISSION:

The primary question for decision is whether the occupational noise standard at 29 C.F.R. § 1910.95(b)(1) is invalid. American Can Company claims that the standard is invalid because: (1) scope and application provisions that accompanied the established federal standard from which it was derived were not adopted with it; and (2) the established federal standard was itself invalid. We hold that the first argument lacks merit and that the second argument may not now be considered.

The Secretary of Labor ("the Secretary") issued to American Can Company ("American Can") citations alleging that, contrary to paragraph (b)(1) [*2] of the occupational noise standard at 29 C.F.R. § 1910.95 ("the OSHA noise standard"), American Can's employees were exposed to sound levels above those in Table G-16, and that feasible administrative or engineering controls were not used. n1 American Can contested the citations and the Secretary filed complaints; one of the complaints added the allegation that American Can violated the hearing conservation program provision in section 1910.95(b)(3). The United Steelworkers of America and its Local 1478 elected party status.

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n1 Section 1910.95 then stated in part:

§ 1910.95 Occupational noise exposure.

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(b)(1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

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(3) In all cases where the sound levels exceed the values shown herein, a continuing effective hearing conservation program shall be administered.

TABLE G-16 -- PERMISSIBLE NOISE EXPOSURES
	Sound level dBA slow
Duration per day, hours	response
8	90
6	92
4	95
3	97
2	100
1 1/2	102
1	105
1/2	110
1/4 or less	115

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Exposure to impulsive or impact noise should not exceed 140 dB peak sound pressure level.

(Footnote to table omitted.)

[*3]

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In all three cases, American Can filed motions to dismiss the complaints and vacate the citations on the grounds that the noise standard is invalid and that the allegations violation are "wholly conclusory." American Can also requested, in the alternative, that the Secretary be required to furnish a more definite statement. American Can then requested that the judge certify his ruling for interlocutory appeal under former Commission Rule 75. n2 The judge granted the request, certifying that "there is a substantial difference of opinion regarding the validity of the standard," and that an immediate appeal would obviate litigation concerning the development of the noise standard. In No. 78-4478, Judge Tenney denied the motion to dismiss and ordered American Can to file an answer. He then granted American Can's motion for a certification for interlocutory appeal. He characterized the controlling question of law as the "power of the Commission to review the rulemaking [*4] by the Secretary of Labor . . . and . . . whether the OSHA noise standard was validly adopted under OSHA." In No. 77-773, Judge Knight took under advisement the argument that the standard is invalid, but ordered the Secretary to file a more definite statement. Judge Knight then granted a motion by the Secretary to certify his ruling to the Commission. Judge Knight heard from the parties and was evidently informed by them that the interlocutory appeal certified by Judge Goldstein in No. 76-5162 raised a question substantially similar to that raised by his order requiring a more definite statement. He therefore certified to the Commission his order for a more definite statement.

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n2 Former Commission Rule 75, 29 C.F.R. § 2200.75 (1977), stated in part:

§ 2200.75 Interlocutory appeals; special; as of right.

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(c) Interlocutory appeal from a ruling of the judge shall be allowed as of right where the judge certifies that: (1) The ruling involves an important question of law concerning which there is substantial ground for difference of opinion; and (2) an immediate appeal from the ruling will materially expedite the proceedings.

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[*5]

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We first clarify what issues are properly before us for review. The only issues before us in Docket Nos. 76-5162 and 78-4478 concern the validity of the standard; Judges Tenney's and Goldstein's certifications identified only issues pertaining to the validity of the standards as warranting interlocutory review. The only issue raised by the certification in No. 77-773 is whether Judge Knight erred in ordering the Secretary to furnish a more definite statement; the judge did not certify the validity of the noise standard but rather took it under advisement.

II.

A review of the regulatory background is important to an understanding of this controversy. In 1936, Congress passed the Walsh-Healey Public Contracts Act, 41 U.S.C. § § 35-45 ("the Walsh-Healey Act"). Section 1(e) of the Walsh-Healey Act, 41 U.S.C. § 35(e), requires contracts with the federal government for materials in amounts over $10,000 to provide that "no part of such contract will be performed . . . under working conditions which are unsanitary or hazardous or dangerous to the health and safety of the employees engaged in the performance [*6] of said contract." That subsection also provides, however, that "Compliance with the safety, sanitary, and factory inspection laws of the State in which the work or part thereof is to be performed shall be prima-facie evidence of compliance with this subsection." Section 4 of the Walsh-Healey Act, 41 U.S.C. § 38, authorizes the Secretary of Labor to adopt rules and regulations to carry out the statute; the Administrative Procedure Act, 5 U.S.C. § § 551-706 ("the APA"), is applicable to the making of these rules. Section 10 of the Walsh-Healey Act as amended in 1952, 41 U.S.C. § 43a.

Section 4(a) of the APA, 5 U.S.C. § 553(b), requires that a general notice of proposed rulemaking be published describing the terms or substance of a proposed rule or the subjects and issues involved; "interpretative rules" are exempted from this requirement unless a specific statute provides otherwise. After the notice is published, interested persons are to be given an opportunity to submit written data, views or arguments. Section 4(b) of the APA, 5 U.S.C. § 553(c). "After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement [*7] of their basis and purpose." Id.

On January 17, 1969, the Secretary published a revision of 41 C.F.R. Part 50-204, Safety and Health Standards for Federal Supply Contracts. 34 Fed. Reg. 788 (1969). The revision came after a proposed revision of Part 50-204 had been published and public comment invited. 33 Fed. Reg. 14258 (1968). A new Walsh-Healey noise standard was adopted at 41 C.F.R. § 50-204.10. 34 Fed. Reg. at 790-791. n3 The Secretary stated that the new standards in the revised Part 50-204 were adopted "[a]fter consideration of all . . . relevant matter as was presented by interested persons" during a three-day period in November 1969. Id. at 788. The revision of Part 50-204 was to have been effective 30 days after its publication.

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n3 The previous Walsh-Healey noise standard, section 50-204.293, stated that "Noise shall be reasonably reduced or eliminated as a means of preventing fatigue or accidents." 25 Fed. Reg. 13809 (1960). The new standard imposed a maximum exposure level of 90 decibels for 8 hours. It also required that feasible engineering methods be used to control noise levels, that personal protective equipment be used where feasible controls could not reduce noise to permissible levels, that employees be given audiometric tests in some circumstances and that the test results be made available to them. Administrative controls were not mentioned.

[*8]

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On February 14, 1969, the effective date of the revision was postponed until May 17, 1969, "to permit a careful review" of the new standards by the new Secretary of Labor. 34 Fed. Reg. 7946 (1969) (preamble); 34 Fed. Reg. 2207 (1969). On May 20, 1969, the Secretary amended the Walsh-Healey noise standard by adding a requirement that feasible administrative controls be used to reduce noise, and by substituting a provision that a "continuing effective hearing conservation program shall be administered" for an audiometric testing provision. 34 Fed. Reg. at 7946, 7948-9. The Secretary explained that he had given consideration to public comments received earlier and to the recommendations of an advisory committee composed of representatives of labor, management and public groups interested in occupational safety and health. On January 24, 1970, the Secretary also made some "minor amendments" to paragraphs (c) and (d) of the Walsh-Healey noise standard. 35 Fed. Reg. 1015 (1970).

The revised Part 50-204 also contained a general, introductory provision, section 50-204.1, entitled "Scope and Application." [*9] 34 Fed. Reg. at 788; 34 Fed. Reg. 7946. Section 50-204.1(a) explained the coverage of the Walsh-Healey Act and quoted the health and safety provision in section 1(e) of the Walsh-Healey Act, as well as the sentence that "Compliance with the safety, sanitary, and factory inspection laws of the State in which the work . . . is to be performed shall be prima-facie evidence of compliance with [subsection 1(e) of the Walsh-Healey Act]." Section 50-204.1(a) also stated that Part 50-204 "expresses the Secretary of Labor's interpretation and application of [subsection 1(e) of the Walsh-Healey Act] with regard to particular working conditions." Section 50-204.1(c) provided that "[w]henever any applicable standard in this Part 50-204 is relied upon by the Department of Labor in a formal enforcement proceeding . . . to support a finding of violation of the safety and health provisions of the Act and of a contract subject thereto, any respondent . . . shall have the right . . . to challenge the legality, fairness or propriety of any such reliance."

The Occupational Safety and Health Act was passed on December 29, 1970, and became effective on April 28, 1971. Section 6(a) of the Act, 29 [*10] U.S.C. § 655(a), required that the Secretary, within two years, adopt as occupational safety and health standards under the Act "established Federal standards" and "national consensus standards" without following the rulemaking requirements of the APA or of other subsections of section 6 of the Act. The Secretary was to do so unless he found that the adoption of a standard would not improve safety or health for specifically designated employees; in the event of a conflict among standards, the Secretary was required to adopt the most protective one. n4 Section 3(10) of the Act, 29 U.S.C. § 652(10), defines "established Federal standard" as "an operative occupational safety and health standard established by any [federal] agency . . . and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act."

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n4 Section 6(a) states:

Without regard to chapter 5 of title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.

[*11]

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On May 29, 1971, the Secretary, acting under section 6(a), adopted many Walsh-Healey standards as occupational safety and health standards. 36 Fed. Reg. 10466 (1971). The Walsh-Healey noise standard was adopted and was codified as an occupational safety and health standard at 29 C.F.R. § 1910.95. Id. at 10466, 10518; 29 C.F.R. § 1910.99. The Secretary did not adopt any part of 41 C.F.R. § 50-204.1, the scope and application provision of 41 C.F.R. Part 50-204.

On that same day, the Secretary also amended 41 C.F.R. Part 50-204. 36 Fed. Reg. 9868 (1971). Among other things, the Secretary revoked 41 C.F.R. § 50-204.1(c). The Secretary's explanation for the amendments relied on the last sentence of section 4(b)(2) of the Act, 29 U.S.C. § 653(b)(2), which states that "Standards issued under the [Walsh-Healey Act] . . . and in effect on or after the effective date of the this Act shall be deemed to be occupational safety and health standards issued under this Act, as well as under such other Acts." n5 The Secretary explained that an occupational safety and health standard is "a substantive rule, [*12] i.e., a rule having the force and effect of law." He reasoned that because the last sentence of section 4(b)(2) made the Walsh-Healey standards substantive rules, they ought to be revised to reflect their new nature.

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n5 Section 4(b)(2) states:

The safety and health standards promulgated under the Act of June 30, 1936, commonly known as the Walsh-Healey Act (41 U.S.C. 35 et seq.), the Service Contract Act of 1965 (41 U.S.C. 351 et seq.), [the Contract Work Hours and Safety Standards Act, usually known as the Construction Safety Act,] Public Law 91-54, Act of August 9, 1969 (40 U.S.C. 333), [the Longshoremen's and Harbor Workers' Compensation Act,] Public Law 85-742, Act of August 23, 1958 (33 U.S.C. 941), and the National Foundation on Arts and Humanities Act (20 U.S.C. 951 et seq.) are superseded on the effective date of corresponding standards, promulgated under this Act, which are determined by the Secretary to be more effective. Standards issued under the laws listed in this paragraph and in effect on or after the effective date of this Act shall be deemed to be occupational safety and health standards issued under this Act, as well as under such other Acts.

[*13]

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III.

American Can has argued beofre the Commission and its judges that the OSHA noise standard is invalid for two reasons.

First, American Can argues that the OSHA noise standard was invalidly adopted under section 6(a) of the Occupational Safety and Health Act. It maintains that the Secretary's failure to adopt the scope and application provision that had accompanied the Walsh-Healey noise standard made the OSHA noise standard impermissibly different in substance. American Can reasons that under the Walsh-Healey scope and application provision, a government contractor could have challenged the "legality, fairness or propriety" of the Labor Department's reliance upon the standard. "Thus, the Walsh-Healey Act noise standard did not purport to impose any rigid requirements. . . . [It] was drafted to allow for flexibility in its application to particular circumstances." American Can maintains that by contrast the OSHA noise standard has "drastically altered [the Walsh-Healey noise standard] by omitting this crucial language." American Can also points to the Secretary's failure "to incorporate [*14] the Walsh-Healey Act provision that compliance with state law 'shall be prima-facie evidence of compliance' with the [Walsh-Healey Act]." It argues that these omissions amounted to an alternation of the duties imposed by the Walsh-Healey noise standard and therefore violated the principle that in adopting an established federal standard under section 6(a), the Secretary was not permitted to alter its substance.

Second, American Can argues that the OSHA noise standard is invalid because the ancestor Walsh-Healey noise standard is invalid. It maintains that the Secretary was required by section 4(b) of the APA, 5 U.S.C. § 553(c), to incorporate into the Walsh-Healey regulations "a concise general statement of their basis and purpose" and that the Secretary failed to do so. It reasons that the derivative OSHA noise standard is therefore also invalid.

The Secretary argues that American Can's invalidity argument are not properly before the Commission. He argues that section 6(f) of the Act, 29 U.S.C. § 655(f), n6 provides the exclusive means for challenging the validity of an occupational safety and health standard, and urges that we overrule Commission decisions to the contrary. [*15] The Secretary and the United Steelworkers argue in addition that the Commission should not overturn an OSHA standard on the ground that the Walsh-Healey standard from which it was derived was invalidly adopted.

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n6 Section 6(f) states:

Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for judicial review of such standard. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay okf the standard. The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.

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Both the Secretary and the United Steelworkers argue that the OSHA noise [*16] standard is valid in any event. They maintain that the application and scope provisions in 41 C.F.R. § 50-204.1 that were not adopted under the Act were not substantive provisions that the Secretary was required to adopt. They maintain that the application and scope provisions were not "occupational safety and health standards" as defined in section 3(8) of the Act, 29 U.S.C. § 652(8), because they did not "require" conditions or practices "reasonably necessary or appropriate to provide safe or healthful employment . . . ." n7 Therefore, they reason, the Secretary was not even permitted to adopt them. The Secretary also argues that Congress desired that the Secretary adopt uniform national standards under the Act and that it could not have desired that the Secretary adopt a provision giving great weight to various state laws.

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n7 Section 3(8) states:

The term "occupational safety and health standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

[*17]

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The Secretary and the United Steelworkers also maintain that the basis and purpose of the Walsh-Healey noise standard are obvious from its rulemaking history, particularly the course of changes it underwent. The United Steelworkers point to "the obvious administrative intent to eliminate 'working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees [under section 1(e) of the Walsh-Healey Act.]'"

In No. 78-4478, Judge Tenney held first that inasmuch as American Can's "collateral" attack upon the OSHA noise standard is based on "essentially procedural" arguments, it cannot now be entertained. The judge cited National Industrial Constructors, Inc. v. OSHRC, 583 F.2d 1048, 1052 (8th Cir. 1978). Judge Tenney found that the attacks upon the standard lack merit in any event. He stated that although the OSHA noise standard is "substantively different" from the Walsh-Healey noise standard, "this is precisely what Congress intended." The judge noted that when the Secretary amended 41 C.F.R. Part 50-204 on May 29, 1971, the Secretary interpreted the last sentence [*18] of section 4(b)(2) as having changed "by operation of law" the nature of the Walsh-Healey standards from interpretative rules to substantive rules, and having in effect rendered 41 C.F.R. § 50-204.1 inoperative under the Walsh-Healey Act. Judge Tenney gave weight to the Secretary's view. Finally, Judge Tenney reasoned that for the Secretary to have adopted the state law and the "legality, fairness or propriety" provisions of 41 C.F.R. § 50-204.1(a) and (c) "would . . . have been difficult to reconcile . . . [with] the treatment of Federal-State regulations prescribed under section 18 of the [the Act], 29 U.S.C. § 667, and the express provision for variances (waivers) from safety rules in section 6(d) [of the Act], 29 U.S.C. § 655(d)."

Judge Tenney also concluded that any failure to comply with the basis and purpose requirement of the APA did not invalidate the Walsh-Healey standard. He was of the view that the Walsh-Healey standard was merely an interpretative rather than a substantive rule because it interpreted the health and safety clause of section 1(e) of the Walsh-Healey Act. Judge Tenney held that the APA's requirement of a statement of basis and purpose does not apply [*19] to interpretative rules.

Judge Goldstein held in No. 76-5162 that the case is controlled by Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1976-77 CCH OSHD P21,023 (No. 3635, 1976), rev'd on other grounds, 561 F.2d 82 (7th Cir. 1977).

IV.

Some of these issues have recently been settled. In Rockwell International Corp., 80 OSAHRC 118/A2, 9 BNA OSHC 1092, 1094-7, 1980 CCH OSHD P24,979, pp. 30,843-5 (No. 12470, 1980), the Commission held that it is generally authorized to consider the validity of occupational safety and health standards. Although we examined the employer's argument that the standard cited there is invalid because it is different in substance from the established federal standard from which it was derived, we reserved decision on whether a challenge to the procedural regularity of the adoption of the ancestor standard itself would be considered.

Shortly thereafter we considered the issue that Rockwell left open. In General Motors Corp., 81 OSAHRC 13/C10, 9 BNA OSHC 1331, 1981 CCH OSHD P25,202 (No. 79-4478, 1981), the Commission thoroughly examined all aspects of the matter, and held that the validity of the procedures by which Walsh-Healey [*20] standards were adopted under the Walsh-Healey Act may not now be challenged. General Motors disposes of American Can's argument that the OSHA noise standard is invalid because the Walsh-Healey noise standard lacked a statement of basis and purpose when it was adopted under the Walsh-Healey Act. We therefore turn to a question of first impression: Is the OSHA noise standard impermissibly different in substance from the Walsh-Healey noise standard?

First, we find it difficult to say what, if any, change occurred when the Secretary did not adopt the "legality, fairness or propriety" provision in 41 C.F.R. § 50-204.1(c). American Can argues that the omission "drastically altered" the noise standard because it was no longer "flexibl[e] in its application to particular circumstances" but was instead rendered "absolute." This considerably overstates the matter. The application of all OSHA standards derived from Walsh-Healey standards is qualified under the Occupational Safety and Health Act in ways that afford flexibility to employers.

Section 6(d) of the Act, 29 U.S.C. § 655(d), requires the Secretary to grant a variance from a standard if a different means of protection will [*21] provide workplace conditions as safe and healthful as those that would prevail if the standard were strictly followed; the Secretary has used this power to afford substantial flexibility in the application of standards. n8 Even where a variance application would be inappropriate, employers need not comply strictly with a standard if to do so would be more hazardous than noncompliance and if available alternative protective measures are taken. n9 Similarly, where strict compliance with a standard is physically impossible or would prevent performance of the work, employers may instead take alternative protective measures. n10 Employers also need not abate violative conditions if the hazards are de minimis, i.e., too trifling to warrant an abatement order or penalty, n11 nor are employers held liable for violations caused by unpreventable acts of their employees. n12 The Commission also considers the difficulties of compliance caused by the possible constructions of a standard when it chooses one construction over another. n13 And finally, the most important duty imposed by the OSHA noise standard itself -- the duty to provide engineering or administrative controls of excessive [*22] noise -- is expressly qualified by the word "feasible."

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n8 See e.g., Grant of Variance to General Motors Corp., 45 Fed. Reg. 46922, 1 BNA OSHR Reference File 35:1311, 1979-80 CCH Emp. S. & H. Guide Developments P12,032 (1980) (variance from lead and arsenic standards).

n9 See, e.g., General Electric Co., 77 OSAHRC 37/A2, 5 BNA OSHC 1186, 1977-78 CCH OSHD P21,658 (No. 12063, 1977), aff'd, 576 F.2d 558 (3d Cir. 1978).

n10 See, e.g., M.J. Lee Constr. Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1146-7, 1979 CCH OSHD P23,330, p. 28,230 (No. 15094, 1979).

n11 See, e.g., Southwestern Electric Power Co., 80 OSAHRC 81/C7, 8 BNA OSHC 1974, 1980 CCH OSHD P24,730 (Nos. 77-3890 & 77-3391, 1980). The last sentence of § 9(a) of the Act, 29 U.S.C. § 658(a), defines a de minimis violation as one that has "no direct or immediate relationship to safety or health."

n12 See, e.g., Texland Drilling Corp., 80 OSAHRC 106/C13, 9 BNA OSHC 1023, 1980 CCH OSHD P24,954 (No. 76-5307, 1980).

n13 See Ormet Corp., 81 OSAHRC 35/C3, 9 BNA OSHC 1828, 1831 (No. 76-4398, 1981).

[*23]

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We are therefore unconvinced that the omission of the phrase "legality, fairness or propriety" in 41 C.F.R. § 50-204.1(c) "drastically altered" the application of the Walsh-Healey standards. Indeed, we cannot be sure what, if any, change has occurred. American Can speculates that government contractors need not have complied with the Walsh-Healey standards "if compliance . . . would have interfered with plant operations, been unduly expensive, or simply unwarranted under the circumstances." But this is only speculation. Given the flexibility of application of standards under the Occupational Safety and Health Act, American Can's speculation is not sufficient ground for invalidating the OSHA noise standard.

There is a more fundamental reason for our rejection of American Can's argument, however. It is possible that the application of the noise standard under the Occupational Safety ans Health Act differs in some respects from its application under the Walsh-Healey Act. We are nevertheless of the view that, to whatever extent its application does differ, the substance of the noise standard was not [*24] impermissibly changed.

Although it is true as a general principal that a standard adopted under section 6(a) may not be different in substance from the stablished federal or national consensus standard from which it was derived, this is only a general principle. Some changes are permissible. For example, in Bechtel Power Corp., 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1008, 1975-76 CCH OSHD P20,503, p. 24,500 (No. 5064, 1976), aff'd, 548 F.2d 248 (8th Cir. 1977), we examined the legislative history of section 6(a) of the Act and concluded that Congress authorized the Secretary to summarily expand the scope of established federal standards to employers not originally covered by them. We therefore held that the Secretary was not required to adopt scope and application provisions of standards originally adopted under the Construction Safety Act. n14 We have also held that the Secretary was not required to adopt under the Act effective date provisions of established federal standards, but could instead establish new ones. See Underhill Construction Corp., 75 OSAHRC 32/B8, 2 BNA OSHC 1556, 1974-75 CCH OSHD P19,276 (No. 1307, 1975), aff'd, 526 F.2d 53 (2d Cir. 1975).

[*25]

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n14 See also Brown & Root, Inc., 81 OSAHRC 17/D14, 9 BNA OSHC 1407, 1981 CCH OSHD P25,226 (No. 77-805, 1981) (Longshoremen's and Harbor Workers' Compensation Act standards not limited to persons originally subject to them); Lee Way Motor Freight, Inc., 74 OSAHRC 22/D12, 1 BNA OSHC 1689, 1691, 1973-74 CCH OSHD P17,693, p. 22,088 (No. 1105, 1974), aff'd, 511 F.2d 864, 869 (10th Cir. 1975) (same as to Walsh-Healey standards).

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American Can argues that the above causes are not dispositive here because the modifications at issue in those cases "did not change the requirements imposed on employers; they simply enlarged the class of employers subject to the preexisting standard." Regardless of American Can's interpretation of those cases, it nevertheless remains that changes in a source standard are permissible if they are the sort of changes that Congress allowed the Secretary to make. The changes American Can points to here are of that sort.

We observed in General Motors that "[t]he drafters of the [*26] Act were aware that the then recently-adopted Walsh-Healey standards would be the primary source of established federal standards for industrial working conditions covered by the Act." n15 However, there is no express evidence in the Act or its legislative history that Congress formed a specific intent on whether the Secretary also had to adopt provisions like those in 41 C.F.R. § 50-204.1(a) and (c). One section of the Act does suggest that Congtess was thinking of rather conventional safety and health regulations. Section 3(8) defines "occupational safety and health standard" as a standard that "requires" conditions or practices -- a description that does not easily fit the scope and application provisions of 41 C.F.R. § 50-204.1. Nevertheless, section 3(8) does not demonstrate congressional intent so clearly that our inquiry can end there. As American Can points out, too narrow a reading of section 3(8) would mean that an exemptory provision within a standard could have been deleted by the Secretary. We must therefore go on to ascertain the legislative intent by starting from the areas where the legislative intent is discernible, and project to fair and reasonable corollaries [*27] of that intent for the issue before us. See Montana Power Co. v. F.P.C., 445 F.2d 739, 746 (D.C. Cir. 1970) (en banc), cert. denied, 400 U.S. 1013 (1971).

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n15 9 BNA OSHC at 1335-6 & n.13, 1981 CCH OSHD at p. 31,122 & n.13.

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We first examine the role that the phrase "legality, fairness or propriety" in 41 C.F.R. § 50-204.1(c) played under the Walsh-Healey Act. The Department of Labor evidently did not treat a violation of a Walsh-Healey standard as necessarily amounting to a breach of the contractor's duty under section 1(e) to provide working conditions that are not "unsanitary or hazardous or dangerous." Although Labor Department employees were instructed by section 50-204.1(b) to "treat a failure to comply with . . . any of the safety and health measures contained in this Part 50-204 as resulting in working conditions which are 'unsanitary or hazardous or dangerous . . .' within the meaning of section 1(e) of the [Walsh-Healey] Act," an exception was provided "in the conduct of formal enforcement proceedings." [*28] Subsection (c) provided the rule for formal enforcement proceedings: The standard allegedly violated would be "relied upon by the Department of Labor . . . to support a finding of violation of the safety and health provisions of the [Walsh-Healey] Act," i.e., the requirement of section 1(e) that working conditions not be "unsanitary or hazardous or dangerous." The charged contractor would then have the opportunity to challenge the "legality, fairness or propriety of any such reliance." In short, a contractor was permitted to challenge the reliance upon a standard to show that a working condition was "unsanitary or hazardous or dangerous." The phrase "legality, fairness or propriety" in section 50-204.1(c) specially reflected and implemented the general criterion of section 1(e) of the Walsh-Healey Act.

It may also be that the phrase "legality, fairness or propriety" served another purpose: to permit the Secretary to judge whether the enforcement of a standard in a particular case would be unduly detrimental to the Government's contractual relationship. The purpose of the Walsh-Healey Act was to "eliminate the practice under which the Government is compelled to deal with sweat [*29] shops." n16 Although the Labor Department set safety and health standards for Government contractors, enforcement was problematic. The only remedies available for safety and health violations were cancellation of the contract and contract debarment for three years (blacklisting). n17 By providing for hearings on the fairness and propriety of relying upon the standards to judge the contractor's actions, the Secretary may have attempted to alleviate in adjudication some of the rigidity of the Walsh-Healey enforcement scheme. In short, section 50-204.1(c) may have helped the Secretary assure that the Government's contractual relationships would not be terminated lightly.

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n16 H.R. Rep. No. 2946, 74th Cong., 2d Sess. 4 (1936), quoted in Perkins v. Lukens Steel Co., 310 U.S. 113, 128 (1940). The Court stated that the Walsh-Healey Act's purpose was "to obviate the possibility that any part of our tremendous national expenditures would go to forces tending to depress wages . . . and offending fair social standards of employment." Id.

n17 Sections 2 and 3 of the Walsh-Healey Act, 41 U.S.C. § § 36 and 37. See 2 Fed. Reg. of Job S. & H. 9:3 (1981) (blacklisting only remedy, rerely used). See also N.Y. Times, Jan. 2, 1970, § 1, at 17, cols. 1, 4:

Many observers have attributed the Labor Department's rare use of the sanction [blacklisting] to the feeling that it is too inflexible to impose in some instances, too drastic in others, and hence impractical in any.

"It sure would help if we had some less serious penalties," one official said recently. "I'm not saying that we ought to do away with the blacklist, but we ought to have a fine or a court injunction or something more."

[*30]

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Although Congress expected the Secretary to adopt the Walsh-Healey standards under section 6(a), it provided him with an enforcement scheme very different from that of the Walsh-Healey Act. Instead of providing merely a general criterion like that in section 1(e) of the Walsh-Healey Act, Congress made the standards themselves the primary focus of an employer's duty. n18 Instead of an inflexible enforcement scheme based upon the Government's contractual relationships, Congress provided a flexible scheme based upon its commerce power. n19 Section 50-204.1(c), which reflects the different approaches of the Walsh-Healey Act, would therefore have been more than anomalous under the Act. Its adoption would have introduced elements of an enforcement scheme that Congress found unsuitable for broadly regulating worker safety and health. We are therefore unconvinced that the Secretary was required, when he adopted the Walsh-Healey standards under section 6(a), to have specifically adopted 41 C.F.R. § 50-204.1(c).

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n18 See Brisk Waterproofing Co., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD P16,345 (No. 1046, 1973) (discussion of role of standards and the general duty clause). Congress viewed section 1(e) of the Walsh-Healey Act as akin to the Act's general duty clause. See S. Rep. No. 91-1282, 91st Cong., 2d Sess., at 10 (1970), and H. Rep. No. 91-1291, 91st Cong., 2d Sess., at 21 (1970), reprinted in Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 150, 851 (1971).

n19 See the remarks of Representative Perkins explaining the conference bill to the House of Representatives, reprinted in Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety Health Act of 1970, 1204 (1971). Under the Act, the Secretary may issue citations, propose penalties, and seek injunctions against imminent dangers. Sections 9, 10 and 13, 29 U.S.C. § § 658, 659 and 662.

[*31]

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We take a similar view of American Can's argument that by omitting the state law provision of section 1(e) of the Walsh-Healey Act quoted in 41 C.F.R. § 50-204.1(a), the Secretary made an impermissible change. The implication of American Can's argument is that the Secretary could not have adopted established federal standards without also adopting the statutes under which the federal standards were established. We think it highly unlikely that Congress intended to require such an odd state of affairs. As a practical matter, Congress' purpose was to supersede rather than perpetuate statutory schemes such as the Walsh-Healey Act's. Yet, the state law provision of section 1(e) reflects the peculiar features of the Walsh-Healey Act. It manifests not only the deference given to state law by the Walsh-Healey Act, but tied the effect of state law to the Walsh-Healey Act's generalized requirement that employees work in conditions that are not "unsanitary or hazardous or dangerous." By contrast, the Occupational Safety and Health Act made standards the primary focus of its enforcement scheme, and in section [*32] 18, 29 U.S.C. § 667, the state plan provision, allowed only state standards adopted under federally-approved state plans to supersede federal standards. For the Secretary to have adopted the state law provision of the Walsh-Healey Act would have circumvented for many industrial hazards the state plan provision of the Occupational Safety and Health Act. We cannot say that the Secretary was required, when he adopted the Walsh-Healey standards under section 6(a), to have specifically adopted the state law provision of the Walsh-Healey Act.

Accordingly, we have not been convinced by American Can that the Secretary's omission of 41 C.F.R. § 50-204.1(a) and (c) was impermissible and that the OSHA noise standard is invalid.

The only matter remaining is Judge Knight's certification of his order in No. 77-773 requiring the Secretary to file a more definite statement.

The Secretary's complaint alleged that at various locations within an American Can plant, "feasible administrative or engineering controls" were not in use. Judge Knight granted American Can's motion to require a more definite statement under Federal Rule of Civil Procedure 12(e). The judge required the Secretary to [*33] specify the feasible controls that American Can failed to use at each location. Judge Knight explained that he granted American Can's motion

in an effort to force the parties -- who, in light of the motion to dismiss and reply and the prior proceedings in similar matters probably know well what is in question -- to identify from the beginning the issues of fact to be resolved so that problems of relevancy and materiality of proof as they arise during the period for discovery and at trial may be quickly disposed. This is especially true in complicated "noise" cases. For the judge, it is the essential purpose of the pleadings[;] and whatever discovery procedures the parties may employ to cure any deficiency in an otherwise legally sufficient pleading do not help him at all.

In this case, the complaint which alleges that no controls were utilized becomes vague when the Secretary's reply to the motion to dismiss, etc., appears to indicate that some efforts to comply perhaps have been made. Hence, the factual situation is not clear and [American Can], if this is the case, cannot respond to the complaint in any meaningful manner. The proceeding is necessarily delayed and discovery [*34] must now be used to clarify the pleadings and identify the issue to be tried which should have been set out initially.

The issue here is whether the judge abused his discretion in ordering a more definite statement. n20 We conclude that because the judge's reasons for ordering the more definite statement are inconsistent with the purpose of Federal Rule 12(e), he abused the discretion granted by the rule.

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n20 Cf. Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 130 (5th Cir. 1959) (federal district court).

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The purpose of a more definite statement is narrow. Federal Rule 12(e) permits a motion for a more definite statement if a pleading "is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Contrary to the judge's view, Rule 12(e) is not designed to assist in trial preparation; that is the function of discovery. It was for this reason that Rule 12(e) was amended in 1940 to eliminate the phrase "or to prepare for trial." n21 Similarly, it is not the purpose of [*35] Rule 12(e) to impose greater bounds on discovery than the liberal notice pleading scheme of the federal rules imposes. n22 And contrary to American Can's argument, it is not necessary on a motion for a more definite statement to determine whether the complaint satisfies minimal pleading requirements; that may be determined by a motion to dismiss for failure to state a claim under Rule 12(b)(6). n23

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n21 See 2A Moore's Federal Practice P12.17 at 2369-2376 (1981); Wright & Miller, Federal Practice & Procedure: Civil § 1375 at 729-730 (1969); see, e.g., Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959). See also Cement Asbestos Products Co., 80 OSAHRC 26/C7, 8 BNA OSHC 1151, 1155, 1980 CCH OSHD P24,343, p. 29,667 (No. 78-1054, 1980) (test is unintelligibility, not trial preparation).

n22 Cf. United States v. Georgia Power Co., 301 F. Supp. 538, 544 (N.D. Ga. 1969) ("Rule 12(e) is not designed to frustrate the concept of notice pleading.").

n23 See Wright & Miller, supra note 21, § 1376 at 732-3; Juneau Square Corp. v. First Wisconsin Nat. Bank, 60 F.R.D. 46 (E.D. Wisc. 1973).

[*36]

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Finally, the judge erroneously found that the complaint became too vague to answer when the Secretary's reply to American Can's motion indicated that American Can had made some efforts at noise control. Our rules require American Can to answer the complaint that the Secretary filed, not allegations or representations outside it. The judge should have therefore focused upon the test stated in Rule 12(e): Can an answer to the complaint reasonably be required to be framed? When the issue is so stated, the answer is clear.

American Can can reasonably be required to frame an answer. American Can understands that the Secretary alleges that it failed to use feasible controls to reduce noise. All it need do to answer this allegation is to ask itself whether this is so. If it believes that the allegation is true or false, it need only so state. If American Can lacks knowledge or information sufficient to form a belief as to the truth of the Secretary's allegation, it need only so state, and its statement will be treated as a denial. Fed. R. Civ. P. 8(b). Inasmuch as it could not be said that American [*37] Can cannot respond, even with a simple denial in good faith or without prejudice to itself, n24 the motion for a more definite statement should not have been granted. n25

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n24 Wright & Miller, supra note 21, § 1376 at 733.

n25 Chairman Rowland would not reach the question of whether Judge Knight abused his discretion, nor would he find whether American Can can reasonably be required to answer this complaint. It is sufficient to hold, for the reasons stated above, that the judge's approach was inconsistent with Rule 12(e). Because the disposition of American Can's motion is a matter committed to the judge's discretion, Chairman Rowland would vacate the judge's order but leave Judge Knight free on remand to reconsider the matter and to enter a new finding in light of the Commission's opinion.

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Accordingly, the judge's rulings in Nos. 76-5162 and 78-4478 are affirmed. In No. 77-773, the judge's order is vacated; American Can shall answer the complaint within twenty days of this decision. The cases are remanded [*38] for further proceedings consistent with this opinion.

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring,

I concur in my colleagues' determination that the occupational noise standard was not shown to have been invalidly promulgated and that the judge's order granting American Can's Motion for More Definite Statement was in error. However, I conclude that no substantive change occurred in the promulgation of the earlier noise standard as an established federal standard under section 6(a) of the Act, 29 U.S.C. § 655(a), because there was no change in the standard of care required by the standard.

The purpose of the Walsh-Healey Act is to ensure that federal contract monies do not go to "forces . . . offending fair social standards of employment," Perkins v. Lukens Steel Co., 310 U.S. 113, 128 (1940), and "that the Federal Government . . . procure and use only goods produced under safe and fair working conditions." George v. Mitchell, 282 F.2d 486, 493 (D.C. Cir. 1960). To this end, section 1(e) of the Walsh-Healey Act, provides with respect to federal procurement contracts as follows:

(e) That no part of such contract will be performed nor will any of the materials, supplies, [*39] articles, or equipment to be manufactured or furnished under said contract be manufactured or fabricated in any plants, factories, buildings, or surroundings or under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of said contract. Compliance with the safety, sanitary, and factory inspection laws of the State in which the work or part thereof is to be performed shall be prima-facie evidence of compliance with this subsection.

41 U.S.C. § 35(e).

American Can claims that the Secretary's failure to adopt the following provisions from the scope and application section covering all Walsh-Healey standards rendered the adoption of the occupational noise standard, 29 C.F.R. § 1910.95, invalid:

Compliance with the safety, sanitary, and factory inspection laws of the State in which the work or part thereof is to be performed shall be prima-facie evidence of compliance. [41 C.F.R. § 50-204.1(a)]

* * *

Whenever any applicable standard in this Part 50-204 is relied upon by the Department of Labor in a formal enforcement proceeding under section 5 of the Walsh-Healey Public Contracts Act to support a [*40] finding of violation of the safety and health provisions of the Act and of a contract subject thereto, any respondent in the proceeding shall have the right and shall be afforded the opportunity to challenge the legality, fairness or propriety of any such reliance. [41 C.F.R. § 50-204.1(c)]

Respondent does not suggest that the Secretary altered the provisions of the noise standard itself when the source standard was adopted. Rather, it claims that the failure to also adopt the above cited provisions resulted in impermissible substantive changes in the cited standard, rendering its promulgation invalid under section 6(a) of the Act, 29 U.S.C. § 655(a).

The portion of 41 C.F.R. § 50-204.1(a) cited above that is referred to by American Can is taken out of context. The full text of the provision is as follows:

§ 50-204.1 Scope and Application.

(a) The Walsh-Healey Public Contracts Act requires that contracts entered into by any agency of the United States for the manufacture or furnishing of materials, supplies, articles, and equipment in any amount exceeding $10,000 must contain, among other provisions, a stipulation that "no part of such contract will be performed nor will any [*41] of the materials, supplies, articles, or equipment to be manufactured or furnished under said contract be manufactured or fabricated in any plants, factories, buildings, or surroundings or under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the erformance of said contract. Compliance with the safety, sanitary, and factory inspection laws of the State in which the work or part thereof is to be performed shall be primafacie evidence of compliance with this subsection." (sec. 1(e), 49 Stat. 2036, 41 U.S.C. 35(e)). This Part 50-204 expresses the Secretary of Labor's interpretation and application of this provision with regard to certain particular working conditions. In addition, § § 50-204.27, 50-204.30, 50-204.31, 50-204.32, 50-204.33, and 50-204,36 contain requirements concerning the instruction of personnel, notification of incidents, reports of exposures, and maintenance and disclosure of records.

The portion cited by American Can is a quotation from the Walsh-Healey Act and the provisions that follow interpret and apply that statute. There is nothing in subsequent provisions of the Walsh-Healey regulations [*42] published by the Secretary of Labor to suggest that a government contractor would be permitted to comply with a state standard as an alternative to compliance with an applicable federal standard. The relevant portion of 41 U.S.C. § 35(e) that is quoted in § 50-204.1(a) merely provides that compliance with state laws "shall be prima facie evidence of compliance" with the requirement that federal contracts not be performed under "unsanitary or hazardous or dangerous" working conditions.

Decisions of the Department of Labor indicate that compliance with state requirements was not viewed as an acceptable substitute for compliance with federal standards promulgated under the Walsh-Healey Act. In finding the employer in violation of 41 U.S.C. § 35(e) in Rushton Cotton Mills, it was concluded:

Compliance with State standards constitutes but prima facie evidence of compliance with the health and safety stipulations of the Act. The conditions described . . . were below the basic safety and health standards set by the Administrator for establishments subject to the Act.

8 Wage & Hour Cases U.S. Labor Dep't 470, 479 (1948) (footnote omitted). Similarly, in Casey-Jones, Inc., 6 [*43] Wage & Hour Cases U.S. Labor Dep't 1137 (1946) the Wage and Hour Administrator stated:

All that can be said for respondent's contention in this respect is that employers take a step in the right direction if they comply strictly with State health and safety requirements, but it cannot be said Congress intended such compliance would work an estoppel of the Federal Government's efforts to set a higher standard in factories engaged in performing its contracts. If Congress had so intended it could have so provided with equal facilities.

6 Wage & Hour Cases U.S. Labor Dep't at 1140. n1 Accordingly, American Can's assertion that the Secretary's failure to adopt § 50-204.1(a) amounted to a substantive modification of the noise standard because it altered an employer's compliance duties is without support.

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n1 Section 50-204.1(b)(1), as revised on May 29, 1971, at 36 Fed.Reg. 9868, has incorporated these interpretations, stating, in pertinent part, the following:

Evidence of compliance with the safety, sanitary, and factory inspection laws of a State in which the work, or part thereof, is performed will be considered prima facie evidence of compliance with the safety and health requirements of the Act, and of any contract subject thereto; and it shall be sufficient unless rebutted or overcome by a preponderance of evidence of a failure to comply with any applicable safety and health rules contained in this report.

[*44]

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The legislative history of the Occupational Safety and Health Act clearly indicates that the drafters intended a comprehensive national, occupational safety and health policy for all employees that would supersede what was considered to be an inadequate state-by-state approach to a serious national problem. n2 Congress indicated its intent to ensure a minimum federal level of employee protection by requiring in the Act's state plan provision, 29 U.S.C. § 667, that state standards be at least as effective as the federal standards they were to supersede. n3 29 U.S.C. § 667(c)(2). Clearly a regulation purporting to permit compliance with various state standards as an alternative to compliance with federal standards, regardless of the basic level of protection afforded by the state standards and without the scrutiny required by the Act's state plan provision, would be inconsistent with the purposes and provisions of the Act. n4 Accordingly, such a regulation could not be adopted under the Act.

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n2 S.REP. No. 91-1281, 91st Cong., 2d Sess. 4 (1970), reprinted in SEN. COMM. ON LABOR & PUBLIC WELFARE, 92d CONG, 1st SESS., LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, at 144 (1971) ("LEGIS. HISTORY"); H.REP. No. 91-1291, 91st Cong., 2d Sess. 15 (1970), reprinted in LEGIS. HISTORY, at 845.

n3 See S.REP. No. 91-1281, supra at 18, reprinted in LEGIS. HISTORY, at 158; H.REP. No. 91-1291, supra at 32, reprinted in LEGIS. HISTORY, at 862. This provision is not unique in comprehensive safety regulation. See 49 U.S.C. § 1673(a), section 3(a) of the Natural Gas Pipeline and Safety Act. 49 U.S.C. § 1671 et seq.; see Enserch Corp., d/b/a Lone Star Gas Co., OSAHRC , 10 BNA OSHC 1285, 1982 CCH OSHD P25,838 (No. 77-2289, 1981).

n4 Such a provision arguably could be nullified on that basis alone. See Manhattan Gen. Equip. Co. v. Commissioner of Internal Revenue, 297 U.S. 129 (1936).

[*45]

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As noted by the majority, if working conditions were found to be "unsanitary or hazardous or dangerous," under the Walsh-Healty Act, the federal contractor would be in violation of section 1(e) of that statute. The available remedies were contract cancellation and/or blacklisting. 41 U.S.C. § § 36 & 37. Under the Secretary's regulations, noncompliance with any safety and health measure contained in 41 C.F.R. Part 50-204 was treated as resulting in working conditions that were "unsanitary or hazardous or dangerous" within the meaning of section 1(e). 41 C.F.R. § 50-204.1(b). Section 50-204.1(c) of the Walsh-Healey regulations permitted a challenge to this finding to avoid harsh results. The regulation provides that whenever the Secretary relies on an applicable standard in Part 50-204 to support a violation of section 1(e) "any respondent in the proceeding shall have the right and shall be afforded the opportunity to challenge the legality, fairness or propriety of any such reliance."

American Can claims that under this regulation a contractor could challenge not only the legality of the standard [*46] but also its fairness and propriety. However, the provision clearly permits a challenge to the "legality, fairness or propriety" of the Secretary's reliance on a standard to find a violation and thereby impose sanctions, not a challenge to the standard. The flexibility afforded by the regulation applied to enforcement sanctions, not to the application of mandatory standards. The Secretary's failure to adopt section 50-204.1(c) as part of the OSHA regulations in no way affected the requirements of the noise standard. The regulation related to the unique enforcement scheme of the Walsh-Healey Act and simply had no relevance to enforcement of the Occupational Safety and Health Act with its less severe remedial measures n5 and specific defenses relating to the particular cited conditions. n6

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n5 See lead opinion, note 17 supra.

n6 See lead opinion, notes 8-13 and accompanying text supra.

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For these reasons I would reject American Can's assertion that the Secretary's failure to adopt Section 50-204.1(a) [*47] & (c) of the Walsh-Healey regulations as part of the OSHA regulations resulted in substantive modifications of the cited standard.

The majority concludes that the judge erred in granting American Can's Motion for More Definite Statement because his basis for granting the motion is inconsistent with Rule 12(e) and the notice-pleading theory of the Federal Rules of Civil Procedure. n7 However, the Commission noted in Cement Asbestos Products Co., 80 OSAHRC 26/C7, 8 BNA OSHC 1151, 1980 CCH OSHD P24,343 (No. 78-1054, 1980), that in federal court proceedings Rule 12(e) must be read in conjunction with the federal rule on complaints, Fed.R.Civ.P. 8. Similarly, in Commission proceedings Rule 12(e) must be read with the Commission rule on complaints, 29 C.F.R. § 2200.33(a)(2). n8 Id.

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n7 See lead opinion, quoted material preceding note 20 supra.

n8 Under 29 U.S.C. § 661(f) and Commission Rule 2, 29 C.F.R. § 2200.2, the Federal Rules of Civil Procedure apply only in the absence of an applicable Commission rule. Commission Rule 33(a)(2) provides:

(2) The complaint shall set forth all alleged violations and proposed penalties which are contested, stating with particularity:

(i) The basis for jurisdiction;

(ii) The time, location, place, and circumstances of each such alleged violation; and

(iii) The considerations upon which the period for abatement and the proposed penalty on each such alleged violation is based.

[*48]

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In granting the Motion for More Definite Statement the judge abused the discretion granted him by Commission Rule 66, 29 C.F.R. § 2200.66. A motion for more definite statement seeks to cure unintelligibility in a pleading and is not a substitute for discovery. Cement Asbestos Products Co., supra. It is appropriate only where a complaint is so lacking in its description of the claim that an answer cannot be framed. The complaint in this case satisfies the requirements of Commission Rule 33(a)(2) and gives sufficient notice of the claim that an answer can be framed. See Id. Any additional information necessary to prepare its defense can be obtained by American Can during the course of discovery. Similarly, a pretrial conference is available to the judge to identify and narrow relevant issues. See Commission Rule 66(g), 29 C.F.R. § 2200.66(g).

The judge's order granting the motion for more definite statement is properly vacated.