SECRETARY OF LABOR,
PABST BREWING COMPANY,
OSHRC Docket No. 77-1985
ORDER OF REMAND
Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:
On December 17, 1982, the Commission issued its decision in Sun Ship, Inc., 82 OSAHRC , 11 BNA OSHC 1028, 1983 CCH OSHD ¶ 26,353 (No. 16118, 1982). In accordance with the decision of the U.S. Supreme Court in American Textile Manufacturers Institute, Inc. v. Donovan, 101 S.Ct. 2478 (1981) ("ATMI"), the Commission held that "feasible" under the occupational noise standard means achievable. The Commission overruled the cost-benefit test of feasibility previously set forth in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD ¶ 21,009 (No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977), and substituted a test consistent with ATMI.
In view of this intervening change in law, the judge's decision with respect to the alleged violation of section 1910.95(b)(1) is vacated. The case is remanded for further proceedings, including evidentiary submissions, so that the interrelated issues of technological and economic feasibility can be reconsidered in light of the test of feasibility established by Sun Ship, Inc. [[1/]]
Pabst Brewing Company argues that the citation lacked sufficient particularity because it did not identify at least one noise control method which the Secretary of Labor believed was feasible. In Pabst's view, this was necessary to guard against an unfounded citation, to promote prompt abatement, and to provide fair notice of the alleged violation. The judge rejected Pabst's defense on the basis of Commission precedent that upheld similar noise citations. See Gannett Corp., 81 OSAHRC 35/A2, 4 BNA OSHC 1383, 1976-77 CCH OSHD ¶ 20,915 (No. 6352, 1976); see also Del Monte Corp., 77 OSAHRC 17/D12, 4 BNA OSHC 2035, 1976-77 CCH OSHD ¶ 21,536 (No. 11865, 1977).
The purpose of the particularity requirement in section 9(a) of the Act is to put the employer on notice as to the nature of the alleged violation. The Secretary is not required to state with particularity how the employer is to abate the cited violation. Del Monte Corp., supra; Gannett Corp., supra. When the language of a citation lacks sufficient particularity the requirements of section 9(a) may be fulfilled in later stages of the proceeding. Del Monte Corp., supra; cf. Cement Asbestos Products Co., 80 OSAHRC 26/C7, 8 BNA OSHC 1151, 1980 CCH OSHD ¶ 24,343 (No. 78-1054, 1980).
Pabst does not argue that it lacked sufficient information in this case to decide whether to contest the citation or that it was prejudiced in preparing its defense. The Commission has held that the ultimate sanction of vacating a citation should be taken only when this showing has been made. Id.; Gold Kist, Inc., 79 OSAHRC 93/C8, 7 BNA OSHC 1855, 1979 CCH OSHD ¶ 23,998 (No. 76-2049, 1979). Accordingly, the judge's ruling on particularity is affirmed.
FOR THE COMMISSION
Ray H. Darling, Jr.
DATED: JAN 31 1983
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[[1/]] Chairman Rowland would not remand the case for further proceedings. Consistent with his dissenting opinion in Sun Ship, he concludes that the requirement in section 1910.95(b)(1) that feasible administrative or engineering controls be utilized is invalid. Because of this conclusion, Chairman Rowland does not reach Pabst's particularity argument which the majority discuss in the succeeding paragraphs of their opinion.