Docket No. 76-2049

GOLD KIST, INC.

OSHRC Docket No. 76-2049

Occupational Safety and Health Review Commission

October 31, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Franklin R. Nix, for the employer

OPINION:

DECISION

BY THE COMMISSION:

An order by Administrative Law Judge Paul L. Brady dated October 21, 1976, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ["the Act"]. In that pre-hearing order, the judge concluded that the citation failed to describe the nature of the violation with particularity, as required by section 9(a) of the Act, n1 and he therefore granted the motion of Gold Kist, Inc., the respondent, to dismiss the complaint and vacate the citation.

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n1 Section 9(a) of the Act, 29 U.S.C. § 658(a), states in pertinent part:

Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.

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Pursuant to Chairman Cleary's granting of the petition for discretionary review filed by the Secretary of Labor ["the Secretary"], the primary issue before us is whether the judge erred in holding that the citation does not satisfy the particularity requirements of section 9(a) of the Act because it merely recited the terms of 29 CFR § 1910.36(b)(3), n2 which Judge Brady found to be vague on its face. n3

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n2 The standard provides:

Subpart E - Means of Egress

* * *

§ 1910.36 General requirements.

* * *

(b) Fundamental requirements.

* * *

(3) Every building or structure shall be provided with exits of kinds, numbers, location, and capacity appropriate to the individual building or structure, with due regard to the character of the occupancy, the number of persons exposed, the fire protection available, and the height and type of construction of the building or structure, to afford all occupants convenient facilities for escape.

n3 Former Commissioner Moran directed review of this case "for error." In the pertinent part of the policy statement accompanying the amendment to 29 CFR Part 2200, the Commission declared:

2. When one or more parties has filed a petition for review, a brief on review, or otherwise responded to a "no issue" or "for error" direction for review and does seek modification or reversal of the judge's decision, the Commission will review the issues raised by such petition, or response.

41 Fed. Reg. 53,015 (1976).

We therefore also consider the respondent's contentions in its brief on review that the standard cited is void for vagueness and that the Secretary's interpretation of the standard at issue affords national consensus standards not yet formally promulgated in accordance with the Act the status of standards that have been so validly adopted by using them to cure the otherwise fatal vagueness of 29 CFR § 1910.36(b)(3).

[*3]

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For the reasons discussed below, we hold that the judge erred in granting the respondent's motion to dismiss. We consider the citation to be sufficiently particular and based on a standard that is not unenforceably vague.

As a result of an inspection of the respondent's animal feed production, distribution, and storage facility in Flowery Branch, Georgia, conducted by authorized representatives of the Secretary on March 31, 1976, the respondent was issued two citations on April 9, 1976. Only the second citation is in question here. In alleging that a serious violation of section 5(a)(2) of the Act due to noncompliance with 29 CFR § 1910.36(b)(3) occurred on or about the date of the inspection, the citation stated that the respondent:

[f]ailed to provide building exits of kinds, numbers, and location appropriate to the building, with due regard to the character of the occupancy and the height of the building, that would afford all occupants convenient facilities for escape, exposing employees to hazards of fire and/or explosion in the Main Mill Building.

Abatement was ordered, and a penalty of $550 [*4] was proposed.

According to an affidavit of Robert Owens, n4 a Safety Specialist employed by the Occupational Safety and Health Administration ["OSHA"] who accompanied the compliance officer in his inspection of Gold Kist's facility on March 31, 1976, the respondent's worksite consists of the Main Mill Building, a warehouse, and two sets of grain elevators used for storing and disbursing material. The Main Mill Building is approximately 30 feet by 40 feet and 95 feet high, not including 12 feet below grade level. The major exit from the building consists of a spiral staircase with open sides located inside the Main Mill Building and adjacent to an elevator with a capacity of one person. Owens averred that additional existing exits consist of three windows marked as "fire escapes" and situated at varying levels of the Main Mill Building.

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n4 The affidavit constitutes Exhibit "A" of the Complainant's Response to Respondent's Supplemental Brief in Support of Gold Kist's Motion to Dismiss.

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The respondent filed a notice [*5] of contest to the citation. On May 21, 1976, the Secretary filed his complaint in which he alleged that Gold Kist

failed to provide building exits of kinds, numbers and location appropriate to the "Main Mill Building", with due regard to the character of the occupancy and the height of the building, that would afford all occupants convenient facilities for escape, in violation of Standard 29 CFR § 1910.36(b)(3) (reference § 1910.39).

29 CFR § 1910.39 provides:

Subpart E - Means of Egress

* * *

§ 1910.39 Sources of standards.

The entire subpart is promulgated from NFPA [National Fire Protection Association] 101-1970, Life Safety Code.

In its answer, the respondent generally denied the Secretary's allegations and asserted that the standard allegedly violated is void for vagueness and "invalid by reason of the Secretary's failure to promulgate, adopt, and reference the subject standard in conformity with the Secretary's rulemaking authority under the . . . Act." The respondent also asserted that the complaint and standard upon which it is based are so vague or ambiguous that the respondent needed more information about how it failed to comply with the standard in order [*6] to develop a responsive pleading. Concurrent with its answer, the respondent filed its Motion for More Definite Statement. n5

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n5 In his Memorandum in Opposition to Respondent's Motion to Dismiss at 13, the Secretary argued that, in accordance with Rule 12(e) of the Federal Rules of Civil Procedure, the sole purpose of such a motion is to allow a party to file a responsive pleading. Rule 12(e) reads in pertinent part as follows:

MOTION FOR MORE DEFINITE STATEMENT. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleadings. The motion shall point out the defects complained of and the details desired.

The Secretary submitted that "(a)ny such 'purpose' was eliminated in the instant case at the time of respondent's filing of its Answer, which was filed simultaneously with its Motion for More Definite Statement." The judge did not specifically dispose of this motion.

Rule 12(e) is aimed at eliminating unintelligibility rather than lack of detail, and a motion for a more definite statement should not be granted for the purpose of obtaining the detailed evidence that is available through discovery. 2A J. Moore, Federal Practice, P12.18 at 2389, 2395-2396 (2d ed. 1975). A motion for a more definite statement must be made before service of a responsive pleading. Id. P12.19 at 2414.

Since we find the citation in this case to be sufficiently particular, we need not further consider the merits of the respondent's motion under Rule 12(e).

[*7]

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On July 21, 1976, the respondent filed a motion to dismiss the complaint and vacate the citation on three grounds: (1) the standard is both statutorily and constitutionally void and unenforceable due to vagueness, (2) the citation is unenforceably vague because it fails to state with particularity the violative conduct or conditions, and it is too indefinite to enable Gold Kist to abate, and (3) the imposition of a civil penalty in a case such as this violates due process. n6

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n6 Gold Kist also submitted a brief in support of its motion. The Secretary subsequently submitted a memorandum in opposition to the respondent's motion to dismiss and vacate. The respondent then filed a brief replying to the Secretary's memorandum. The American Feed Manufacturers Association, Inc. then filed a Motion to Intervene as Amicus Curiae in Support of Respondent Gold Kist and an accompanying Brief as Amicus Curiae in Support of Respondent Gold Kist's Motion to Dismiss and Vacate Citation. The Secretary submitted a Response in Opposition to Motion of American Feed Manufacturers Association to Intervene as a Party as set forth in the Association's aforementioned motion. Judge Brady did not act on the Association's motion. The respondent subsequently submitted a supplemental brief in support of its motion to dismiss. The Secretary then filed his response to the supplemental brief.

[*8]

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Without holding a hearing, the judge granted Gold Kist's motion and dismissed the complaint and vacated the citation and proposed penalty on the ground that the citation lacked the particularity required by section 9(a) of the Act. The judge relied on B.W. Harrison Lumber Co., 76 OSAHRC 49/A2, 4 BNA OSHC 1091, 1975-76 CCH OSHD P20,623 (No. 2200, 1976), aff'd sub nom. Marshall v. B.W. Harrison Lumber Co., 569 F.2d 1303 (5th Cir. 1978), for the proposition that, for a citation to be sufficiently particular and thus provide fair notice of the nature of the violation, it must be precise enough to enable the employer to make an informed decision as to whether to contest and to determine how to abate the violation. The judge acknowledged that liberal construction of pleadings in administrative proceedings is allowed, but he concluded that a citation is not a pleading and that the complaint in this case did not cure the deficiencies of the citation. The judge stated:

A reading of the standard reveals that on its face it is vague and subject to varying interpretations in its application. [*9] The use of essentially the same indefinite language in the citation fails to "describe with particularity the nature of the violation" as required by section 9(a) of the Act, and deprives the employer in this case of fair notice.

He also noted that due process requires that an employer be given sufficient notice of what conduct the law requires before being penalized for committing a violation.

In his petition for discretionary review, which was subsequently granted, the Secretary takes exception to that portion of the judge's order quoted immediately above. The Secretary notes that, in Pratt & Whitney Aircraft, 75 OSAHRC 42/A2, 2 BNA OSHC 1713, 1974-75 CCH OSHD P19,443 (No. 510, 1975), the Commission rejected the employer's contention that another standard concerning means of egress, 29 CFR § 1910.36(b)(8), was unconstitutionally vague. The Commission held that the standard is enforceable because the language of the standard is as exact as possible given the large number of conceivable situations likely to cause injury which could arise, citing Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974), and because an external and objective "reasonable person" [*10] test is inherent in the standard.

The Secretary further challenges other parts of the judge's order that supported the judge's conclusion that the citation lacked particularity. The Secretary asserts that the original citation and the citation as amended by the complaint are sufficiently particular to give Gold Kist fair notice of the nature of the alleged violation since they stated the location of the alleged violation, designated the standard allegedly not complied with, described the violation in terms taken from the cited standard, and indicated what hazard the violative conduct poses.

The Secretary also takes exception to the implication in Judge Brady's order that that order was mandated by the Commission decision in B.W. Harrison Lumber Co., supra. The Secretary argues that the judge failed to apply that portion of the Commission's decision in B.W. Harrison Lumber Co. that provides:

In determining whether fair notice has been afforded, consideration may be given to factors external to the citation, such as the nature of the alleged violation, the circumstances of the inspection, and the employer's knowledge of his own business. REA Express v. Brennan, [*11] 495 F.2d 822, 826 (2d Cir. 1974).

76 OSAHRC at 49/A2, 4 BNA OSHC at 1093, 1975-76 CCH OSHD at p. 24,683.

The Secretary's final objection is to the judge's ultimate granting of Gold Kist's motion in that he dismissed the complaint and vacated the citation and proposed penalty.

Gold Kist sets forth arguments in its Statement in Opposition to Secretary's Petition for Discretionary Review against each of the points to which the Secretary takes exception. The respondent contends that Judge Brady's order relied entirely on the citation's lack of particularity and that the judge's statement that the standard at issue is vague is merely dicta. Gold Kist notes that the Secretary's citation did not notify the respondent of any specific conditions involving egress allegedly present in the respondent's facility that subjected its employees to the hazards of fire or explosion. The respondent asserts that the judge did not consider the Commission's decision in B.W. Harrison Lumber Co., supra, as mandating how he should decide this case. Gold Kist further argues that, in the portion of B.W. Harrison Lumber Co. quoted above, by saying that "consideration may be given [*12] to factors external to the citation" (emphasis added), the Commission permits but does not require consideration of such external factors.

In his brief on review, the Secretary expresses his continued reliance on the arguments made in his petition for discretionary review and raises additional contentions. He asserts that the judge erred in considering the standard, a regulation involving remedial civil legislation, only on its face rather than as it applies to the facts of the case, citing United States v. National Dairy Products Corp., 372 U.S. 29, 36 (1963); Brennan v. OSHRC and Santa Fe Trail Transport Co., 505 F.2d 869, 872 (10th Cir. 1974); and Ryder Truck Lines, Inc. v. Brennan, supra.

The Secretary further contends that Gold Kist had fair notice of the cited violation since the fire and explosion hazards in feed mills are well-known in the industry. Moreover, members of the industry participated in the formulation of NFPA No. 61C-1971, entitled "Standard for the Prevention of Dust Explosions in Flour and Feed Mills," as well as NFPA No. 61C-1952, entitled "Code for the Prevention of Dust Explosions in Flour and Feed Mills and Allied Grain Storage Elevators." [*13] n7

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n7 The pertinent section in both NFPA Code No. 61C-1971 and No. 61C-1952 provides:

108. Stairs and Exits.

1081. There shall be at least one stair tower from basement to first floor and from first floor to the top floor of working house enclosed in dust-tight non-combustible shafts, preferably built of concrete.

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In its brief on review, the respondent urges that 29 CFR § 1910.36(b)(3) be declared void for vagueness in that it deprives the employer of reasonable notice. The respondent notes that, despite all the papers filed by the parties in this case, the Secretary has never set forth the meaning of the standard at issue as it applies to the facts of this case. Instead he has rejected the respondent's reliance on the Secretary's pre-hearing interpretation of the standard in another case involving a feed mill n8 for the reason that the standard must be applied on a case-by-case basis since the requisite means of egress for a facility can be determined only after considering factors particular to that facility. [*14]

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n8 Ralston Purina Co., 77 OSAHRC 128/A2, 5 BNA OSHC 1834, 1977-78 CCH OSHD P21,925 (No. 76-261, 1977) (ALJ).

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Alternatively, Gold Kist notes that the Secretary did finally urge, after considering material beyond the standard's own language, that the standard requires that the respondent have a dust-tight, self-enclosed stair tower within its Main Mill Building. The respondent considers this argument to be an attempt to adopt by implication a national consensus standard not formally adopted under section 6(a) of the Act, 29 U.S.C. § 655(a). n9 Gold Kist notes that the Secretary has consistently contended that reference to the source of the standards, NFPA No. 101-1970, may give meaning to the standard. The respondent points out that the Secretary's "stair tower" interpretation is based on P15-4111 of the Life Safety Code n10 and contends that the Secretary should not be permitted to rely on the Life Safety Code as an aid in interpreting the cited standard. The respondent's arguments are summarized as follows: [*15]

(1) It is inappropriate to rely upon the Life Safety Code because it consists of national consensus standards not validly promulgated as occupational safety or health standards under section 6(a) of the Act.

(2) The section of the Life Safety Code relied upon by the Secretary is a "specific means of egress requirement by occupancy." However, the Secretary has "reserved" 29 CFR § 1910.38 n11 for the future promulgation of such standards.

(3) The Life Safety Code contains a specific stair tower provision only for "grain elevators." Paragraph 15-4111 refers in its note to NFPA No. 61B, which sets forth guidelines for grain elevators and bulk grain handling facilities. However, the cited worksite is a "feed mill," a type of facility not mentioned in the Life Safety Code. Feed mills are covered by NFPA No. 61C, a national consensus standard not validly promulgated as an occupational safety or health standard under section 6(a) of the Act.

With regard to the Life Safety Code and NFPA No. 61C, the respondent argues in its brief on review at 9 that "(t)he Secretary's attempt to graft the meaning of these national consensus standards never adopted by the Secretary on to the Standard [*16] at issue is . . . nothing less than an attempt to circumvent the notice and hearing requirements for the promulgation of new standards under the Act."

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n9 The section reads in pertinent part as follows:

(T)he 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 . . . unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees.

n10 The provision states:

Section 15-4. Special Provisions for Grain Elevators

15-4111. * In grain elevators, there shall be at least 1 stair tower from stories below the floor of exit discharge to the floor of exit discharge and from the floor of exit discharge to the top floor of the working house enclosed in a dust-tight non-combustible shaft.

* * *

* A-15-4111. For further information, see NFPA Standard No. 61B, Grain Elevators and Bulk Grain Handling Facilities.

n11 The standard reads as follows:

Subpart E - Means of Egress

* * *

§ 1910.38 Specific means of egress requirements by occupancy. [Reserved]

[*17]

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Gold Kist also declares in its brief on review that the judge correctly disregarded Pratt & Whitney Aircraft, supra, since the standard in that case, which requires two means of egress remote from each other, has many less subjective variables than the standard at issue here.

Gold Kist generally concludes that the formal procedures available under the Act for promulgating national consensus standards as standards under the Act are meaningless if the citation and complaint in this case are deemed to be sufficiently particular due to the interpretive aid of P15-4111 of the Life Safety Code and NFPA No. 61C-1971 and No. 61C-1952. The respondent asserts that the Secretary has failed to carry out what the court in Diamond Roofing Co., Inc. v. OSHRC, 528 F.2d 645 (5th Cir. 1976), calls his "responsibility to state with ascertainable certainty what is meant by the standards he has promulgated."

Vagueness of the Standard

Judge Brady stated in the beginning of his order: "It is alleged that the standard at 29 CFR § 1910.36(b)(3), is constitutionally void and unenforceable because of vagueness." [*18] He noted that Gold Kist's motion to dismiss is based on the failure of the standard and the citation to provide notice adequate to afford the respondent due process. In the portion of his decision quoted in our summary of the judge's decision, supra, the judge concluded that the standard at issue is vague on its face and that, therefore, the citation which contains language essentially identical to that in the standard fails to "describe with particularity the nature of the violation." The judge's statement concerning the vagueness of the standard is thus not mere dicta as Gold Kist alleges, but rather it is the first and pivotal step in the two-step analysis followed by the judge in order to determine whether the citation lacked the requisite particularity.

As the Secretary notes in his brief on review, a standard should not be evaluated for vagueness solely by its own terms, but instead the standard should be considered as it applies to the facts of the case. United States v. National Dairy Products Corp., supra; Brennan v. OSHRC and Santa Fe Trail Transport Co., supra. The Commission has determined that broad terms in standards can acquire meaning when read [*19] together with other standards or codes and industry custom. Modern Automotive Service, Inc., 74 OSAHRC 9/A11, 1 BNA OSHC 1544, 1973-74 CCH OSHD P17,369 (No. 1541, 1974).

In its discussion of the asserted vagueness of 29 CFR § 1910.132(a), n12 another standard written in general terms, the United States Court of Appeals for the Fifth Circuit in Ryder Truck Lines, Inc. v. Brennan, supra, declared, "So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster. United States v. Petrillo, 332 U.S. 1, 4, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947)." The court also said:

The regulation appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury. Moreover, we think inherent in that standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard of foot injuries to dockmen, in a somewhat confined space, from falling freight and the rapid movement of heavy mechanical and motorized equipment, which would warrant protective footwear. [*20]

497 F.2d at 233.

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n12 The standard reads:

Subpart I - Personal Protective Equipment (a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

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In Pratt & Whitney Aircraft, supra, the Commission applied the court's language quoted above in determining whether 29 CFR § 1910.36(b)(8), n13 another standard involving means of egress, is unenforceably vague. After determining that the external and objective test of whether "a reasonable person responsible for the safety of employees, after considering [*21] the standard . . . and the factual situation, would be able to apply the language of the standard to the situation in order to identify the hazard and eliminate it" had been met in that case, we concluded that 29 CFR § 1910.36(b)(8) was not unenforceably vague. 75 OSAHRC at 42/A5, 2 BNA OSHC at 1715, 1974-75 CCH OSHD at p. 23,216.

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n13 The standard provides:

Subpart E - Means of Egress

* * *

§ 1910.36 General requirements.

* * *

(b) Fundamental requirements

* * *

(8) Every building or structure, section, or area thereof of such size, occupancy, and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, shall have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions.

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After applying the standard cited to the facts of this case and considering the standard in the light of other industry codes, we [*22] reject the respondent's argument that the standard is void for vagueness.

The Main Mill Building is described above as having a spiral staircase with open sides. The respondent admitted that during its normal operations the Main Mill Building contains combustible "feed dust," which constitutes "high-hazard contents" as defined by 29 CFR § 1910.35(f). n14 In his affidavit, supra at n. 4, Robert Owens, the OSHA Safety Specialist, stated that on or about April 29, 1976, which was prior to the respondent's submission of its notice of contest, he informed Gold Kist that the Life Safety Code, NFPA 101-1970 and particularly section 15-4, n15 which describes the stair tower requirement for grain elevators, should be used for guidance in effectuating abatement.

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n14 Gold Kist's Response to Secretary's Request for Admissions at 3.

The standard referred to provides:

Subpart E - Means of Egress

§ 1910.35 Definitions.

* * *

(f) High-hazard contents. High-hazard contents shall be classified as those which are liable to burn with extreme rapidity or from which poisonous fumes or explosions are to be feared in the event of fire.

n15 See n. 10, supra.

[*23]

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Having considered the cases discussed above, particularly Pratt & Whitney Aircraft, supra, and Ryder Truck Lines, Inc. v. Brennan, supra, we hold that 29 CFR § 1910. 36(b)(3) is not unenforceably vague as applied in this case because a reasonable person entrusted with the safety of Gold Kist's employees who has considered the language of 29 CFR § 1910.36(b)(3) in light of the factual circumstances would recognize whether the exits were adequate in the Main Mill Building. Even though, as the respondent notes in its brief on review, the standard at issue in Pratt & Whitney Aircraft, supra, may have fewer undefined words than 29 CFR § 1910.36(b)(3), the rationale expressed in Ryder Truck Lines, Inc. v. Brennan, supra, applies to all standards containing necessarily broad terms.

We reject Gold Kist's contention that in his reference to the Life Safety Code as an aid in interpreting the cited standard, the Secretary is impliedly trying to adopt a national consensus standard not adopted in accordance with section 6(a) of the Act. We dispose of each of Gold Kist's three supporting [*24] contentions, supra, as follows:

(1) Merely because the Secretary has not promulgated the Life Safety Code as an OSHA standard under section 6(a) of the Act does not mean that the Code cannot be used as an aid in interpreting the standards in Subpart E for which it is cited as the source. The Life Safety Code should be considered in determining the interpretation and application of the standard just as the legislative history of the Act is consulted in interpreting the Act's provisions.

(2) The "reservation" of 29 CFR § 1910.38 does not constitute a decision on the Secretary's part not to regulate conditions involving means of egress determined to be insufficient based upon the occupancy of a building or structure. Rather, such a setting aside for future use merely keeps that provision available for more specific standards that the Secretary may wish to promulgate in the future. n16

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n16 We note that in 43 Fed. Reg. 60,052, 60,063 (1978), OSHA proposed that the heading for the existing 29 CFR § 1910.38 be deleted and that a new 29 CFR § 1910.38 entitled "Employee emergency plans" and having a number of provisions thereunder be added.

[*25]

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By its own terms, 29 CFR § 1910.36(b)(3) applies to all buildings or structures, regardless of their occupancy. Furthermore, the title of 29 CFR § 1910.38 does not control the applicability of other standards in Subpart E. "Titles and headings are '. . . tools available for the resolution of a doubt. But they cannot undo or limit that which the text makes plain.' Brotherhood of Railroad Trainmen v. Baltimore & Ohio Railroad, 331 U.S. 519, 529 (1947)." Wray Electric Contracting, Inc., 78 OSAHRC 78/A2 at 78/A12, 6 BNA OSHC 1981, 1984, 1978 CCH OSHD P23,031 at p. 27,835 (No. 76-119, 1978).

(3) There has yet to be a determination by the judge whether the respondent's facility is a "grain elevator" or a "feed mill" Nevertheless, even if shown to be a "feed mill," as the respondent notes, the National Fire Protection Association has promulgated advisory standards for feed mills (NFPA No. 61C). Since the cited OSHA standard applies to all buildings while specific provisions within the NFPA advisory standards take cognizance of hazards particular to the activity in which the respondent is engaged, [*26] we conclude that appropriate NFPA provisions may be used to define and interpret the cited OSHA standard. See Modern Automotive Service, Inc., supra.

Particularity of the Citation

In that case, the respondent was issued a citation for violating 29 CFR § 1910.95(b)(1) by not using feasible engineering and administrative controls to protect its employees from exposure to excessive noise levels in the primary and secondary twisting areas of its yarn twisting plant. We held that the judge erred in granting the motion to dismiss the complaint and vacate the citation made by the respondent at the hearing since we found the citation to be sufficiently particular on its face.

As we noted in Gannett Corp., OSAHRC / , 4 BNA OSHC 1383, 1976-77 CCH OSHD P20,915 (No. 6352, 1976), the particularity requirement's purpose is to put the employer on notice regarding [*27] the nature of the alleged violation so that it can make an informed decision whether to contest the citation. The extreme sanction of vacating a citation should be taken only where the respondent has shown that it was prejudiced in its ability to determine whether to contest or in its ability to defend on the merits. See Louisiana-Pacific Corp., 77 OSAHRC 187/A2, 5 BNA OSHC 1994, 1977-78 CCH OSHD P22,261 (No. 10639, 1977). In Gannett Corp., supra, we stated further that factors other than the mere language of the citation, such as the circumstances surrounding the inspection and the employer's familiarity with his own business, should be considered in determining whether fair notice has been given. See REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974).

In determining whether a respondent has received fair notice of the nature of the violation, we can consider the pleading, discovery, hearing, and decisional stages of the case since the purpose of the particularity requirement may then be fulfilled. Del Monte Corp., 77 OSAHRC 17/D12, 4 BNA OSHC 2035, 1976-77 CCH OSHD P21,536 (No. 11865, 1977) (Cleary, Commissioner); see Gannett Corp., [*28] supra; Ringland-Johnson, Inc., 76 OSAHRC 63/A2, 4 BNA OSHC 1343, 1976-77 CCH OSHD P20,801 (No. 3028, 1976), aff'd sub nom. Ringland-Johnson, Inc. v. Dunlop, 551 F.2d 1117 (8th Cir. 1977); Allis-Chalmers Corp., 75 OSAHRC 86/F5, 3 BNA OSHC 1629, 1975-76 CCH OSHD P20,065 (No. 5599, 1975), aff'd sub nom. Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27 (7th Cir. 1976). The consideration of such factors comports with the rule that administrative pleadings, especially citations, should be construed liberally and amended easily. National Realty and Constr. Co., Inc. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).

In B.W. Harrison Lumber Co., supra, it was specifically noted that that decision concerned only the issue of whether a prior uncontested citation was particular enough to be enforceable in a subsequent action for failure to abate the violation, not whether the citation should be vacated due to lack of particularity. 76 OSAHRC 49/A9 n.8 and 49/A11 n.10, 4 BNA OSHC at 1092 n.8 and 1093 n.10, 1975-76 CCH OSHD at 24,682 n.8 and 24,683 n.10.

The question in the instant case is whether the contested citation was properly vacated. [*29] Our decision in B.W. Harrison Lumber Co., which is limited to the question of whether an earlier citation was sufficiently particular so as to provide the basis for a subsequent failure to abate action, is thus not controlling. That case speaks to those situations, of which the instant case is not one, in which the employer does not contest the original alleged violation. Where the citation is contested, a deficiency, if any, in a complaint or citation can be cured by further pleadings or discovery, thus avoiding the extreme sanction of dismissal.

We conclude that Judge Brady failed to consider factors external to the citation as discussed in Gannett Corp., supra. As a result of our evaluation of the factors discussed below, we find the citation in the instant case to be sufficiently particular under section 9(a) of the Act.

As in Meadows Industries, Inc., supra, the citation in the instant case notified Gold Kist of the nature of its alleged violation -- failure to provide exits adequate for convenient escape in the case of fire or explosion -- and the general location of the alleged violation -- the Main Mill Building.

An examination of the pleadings, motions, [*30] and inquiries for discovery purposes, all of which abound in this case, reveals that Gold Kist was prejudiced neither in its ability to choose wnether it should contest nor in its efforts to defend itself against the allegations in the citation. As noted above, the respondent admitted that its Main Mill Building normally contains "high-hazard contents" consisting of combustible "feed dust." The Secretary apprised the respondent in writing that, according to 29 CFR § 1910.39, the source of the standards in Subpart E of 29 CFR § 1910 is NFPA 101-1970, Life Safety Code. In his Memorandum in Opposition to Respondent's Motion to Dismiss Complaint and Vacate Citation at 8, the Secretary stated that that source should be regarded as standing in relationship to the standards in Subpart E in the same way that the legislative history of the Act relates to its statutory provisions. As noted above, Robert Owens, the OSHA Safety Specialist, particularly pointed out to the respondent that section 15-4 of the Life Safety Code would be a helpful reference for abatement purposes.

Accordingly, it is ORDERED that the judge's order granting the respondent's motion to dismiss the complaint and vacate [*31] the citation is reversed. We remand this case for further proceedings consistent with this decision.

DISSENTBY: BARNAKO

DISSENT:

BARNAKO, Commissioner, Dissenting:

I agree with my colleagues that the judge erred in granting Respondent's motion to dismiss. Unlike my colleagues, however, I would not on the record now before us conclude either that the cited standard, 29 C.F.R. § 1910.36(b)(3), or the citation alleging violation of that standard give Respondent adequate notice of the conduct required of it. Rather, in my view the present record, which consists of the pleadings, briefs, and one single affidavit, fails to provide sufficient information to permit the Commission to decide whether, in the circumstances of the case, the standard and citation provide fair notice. Therefore, while I join in the order of remand, for the reasons that follow I would reserve decision on the vagueness and particularity issues pending development of a full evidentiary record.

Enforceability of the Standard

As my colleagues acknowledge, the cited standard, 29 C.F.R. § 1910.36(b)(3), is a broadly worded standard. n1 By its plain terms it is directed to four general attributes of exits: their type, number, [*32] location, and capacity. It provides that every building or structure must have the proper exits in terms of these qualities, but it gives only limited guidance for the achievement of this objective. It provides that the exits have the qualities "appropriate" to the building or structure and that all occupants be afforded "convenient facilities for escape." Moreover, it specifies four criteria that are to be considered in determining the adequacy of the exits provided in a building or structure: the character of the occupancy, the number of persons exposed, the fire protection available, and the height and type of construction.

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n1 See note 2 of the majority opinion for the complete text of the standard.

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In discussing whether this standard is unenforceably vague my colleagues appropriately quote the language appearing in Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974). Obviously, there are a myriad of diverse circumstances that might constitute a violation of this standard. Existing exits might [*33] be deficient in any one or more of the four basic qualities to which the standard is directed. Each such deficiency may be attributable to any one or combination of the criteria which the standard requires to be considered, and these criteria might be accorded different weight. For example, in a particular case the type of exits provided might be inadequate in view of the nature of the occupancy whereas their quantity might be deemed insufficient for an entirely different reason, such as the number of persons exposed. My colleagues properly conclude that the standard is so broad in scope that it should not be evaluated for vagueness solely by its own terms but instead should be considered as it applies to the facts of the case. They further correctly note that the standard can acquire meaning by reference to other standards or safety codes and industry customs. However while I agree with the tests my colleagues apply for determining whether a broadly-worded standard is overly vague, I do not agree with their conclusion in this case.

In order to view a standard in light of the particular fact situation presented, the proscribed conduct must be apparent and an evidentiary record [*34] must be developed demonstrating the circumstances of the case. This is necessary so that it can be determined whether Respondent should have recognized that the standard prohibits the cited conduct. n2 Indeed reference to other standards, safety codes, and industry custom as a means of elucidating the meaning of a standard in a particular factual situation is totally meaningless unless the proscribed conduct which those external sources are meant to define has been identified. See Lehr Construction Co., 78 OSAHRC 12/B4, 6 BNA OSHC 1352, 1978 CCH OSHD P22,542 (No. 7240, 1978). In the present case, as discussed in greater detail infra, neither the proscribed conduct has been identified nor an evidentiary record established. Accordingly, on the basis of the present record I cannot determine whether the standard is unenforceably vague and would therefore remand for development of a full evidentiary record on this and the other issues in the case.

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n2 In Ryder Truck Lines, Inc. v. Brennan, supra, which my colleagues quote, the court found 29 C.F.R. § 1910.132(a) enforceable on the basis that a reasonable person would recognize that the circumstances of the case presented a specific type of hazard -- foot injuries from falling freight and mechanical equipment. Similarly, the Commission in considering whether that standard is vague has consistently looked to the circumstances surrounding the operation in question or to the employer's own understanding of the standard's requirements. E.g., Wilson Freight Co., 77 OSAHRC 150/C10, 5 BNA OSHC 1692, 1977-78 CCH OSHD P22,041 (No. 13030, 1977); Lee Way Motor Freight, Inc., 75 OSAHRC 20/E12, 3 BNA OSHC 1843, 1975-76 CCH OSHD P20,250 (No. 7674, 1975); and cases cited therein. In Modern Automotive Service, Inc., 74 OSAHRC 9/A11, 1 BNA OSHC 1544, 1973-74 CCH OSHD P17,369 (No. 1541, 1974), on which my colleagues also rely, the Commission indicated that other standards dealing with personal protective equipment for specific types of hazards, such as eye, respiratory, head, toe, and electrical shock protection, are a guide to defining the requirements of the general protection equipment standard at 29 C.F.R. § 1910.132(a). That case likewise involved facts showing the existence of a hazard of toe injuries, so that the Commission could identify both a specific hazard and a specific protective measure from among those which the general standard could be said to include. All these cases are distinguishable from the case now before us because each had a factual record demonstrating the existence of a specific hazard and a particular measure that could have been taken to protect against that hazard.

Our prior decision regarding another exit standard, Pratt & Whitney Aircraft, 75 OSAHRC 42/A2, 2 BNA OSHC 1713, 1974-75 CCH OSHD P19,443 (No. 510, 1975), is also distinguishable in that it had a much more complete record. There the factual record showed the dimensions of the area in question, the number of exits available for use at any given time, and the nature of the occupancy and possible hazards, including the use of flammable liquids, sources of ignition, the number of employees, and their work duties.

[*35]

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II.

Particularity of the Citation

The purpose of the statutory requirement that a citation be particular is to insure that the employer receives fair notice of the nature of the alleged violation so that it may make an informed decision whether or not to contest the allegations and may determine the means to abate the violation in the event it elects not to contest. Since the purpose of the particularity requirement is to enable an employer to make an informed judgment at the time the citation is issued, I would require that the citation be sufficiently particular at that time. n3 Factors external to the language of the citation itself, such as the circumstances surrounding the inspection and the employer's own knowledge of its business, may be considered in determining whether the employer was given fair notice. Wheeling-Pittsburgh Steel Corp., 79 OSAHRC , 7 BNA OSHC 1581, 1587, 1979 CCH OSHD P23,784 at 28,857 (No. 14702, 1978) (concurring opinion); Gannett Corp., 4 BNA OSHC 1383, 1976-77 CCH OSHD P20,815 (No. 6352, 1976).

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n3 I therefore disagree with my colleagues that a citation may be cured by information obtained by the employer during adjudication, through discovery or other means.

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My colleagues presumably conclude that the citation in this case on its face is not sufficiently particular, since they hold that the judge erred in vacating the citation for lack of particularity without considering the aforementioned external factors. n4 Because the citation simply repeats the language of the standard itself, providing no further information with respect to the particular manner in which Respondent's exits are alleged to be inadequate, I agree that on its face the citation does not give notice of the nature of the alleged violation. Moreover I would conclude that the pleadings, motions, discovery inquiries, and Owens' affidavit, which comprise the record before us, are not sufficient to establish that at the time the citation was issued, Respondent had adequate notice from external factors as to the nature of the alleged violative conduct. I would also conclude that the record as it [*37] currently exists does not even now inform Respondent of the proscribed conduct.

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n4 The language of the citation is set forth in the majority opinion, supra.

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There has been no hearing in this case n5 and therefore the record contains little, if any, information regarding the operation and physical characteristics of the Main Mill Building. The only evidence with respect to the operation performed at the Main Mill Building is contained in Respondent's response to the Secretary's request for admissions. In that document, Respondent admitted that in the course of producing animal feed, grain is mixed with other ingredients in the Main Mill Building and that combustible feed dust which constitutes "high-hazard contents" is present in the Main Mill Building. The record does not establish the physical characteristics of the Main Mill Building, the number of persons exposed, and the type, number, location, and capacity of the existing exits from which it could be concluded that Respondent would or would not understand [*38] in what respect those exits are deficient with regard to the cited standard. Furthermore, the only evidence with respect to what Respondent knew approximate to the time of the issuance of the citation is contained in the affidavit of Robert Owens, the Secretary's safety specialist. Even assuming that this affidavit is relevant n6 and establishes the existence of the facts contained therein, n7 it does no more than establish that Respondent's safety director was referred to the Life Safety Code, NFPA 101-1970, (hereinafter Life Safety Code) and section 15-4 of that code, which contains special provisions for grain elevators. n8

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n5 The judge vacated the citation following his ruling on Respondent's motion to dismiss for lack of particularity of the citation and unenforceability of the cited standard.

n6 This affidavit relates to what Mr. Owens allegedly told Respondent's safety director twenty days after the issuance of the citation. Therefore it does not address what Respondent knew when the citation was issued.

n7 I would not accept as fact any of the statements made in the Owens' affidavit without affording Respondent an opportunity to reply thereto. The Owens' affidavit was submitted by the Secretary following the Secretary's initial brief in response to Respondent's motion to dismiss. It was also submitted after Respondent had filed an initial brief and both a reply and supplemental brief. In view of the Secretary's late filing of the affidavit, Respondent may well have believed it was justified in relying upon its previous submissions in the case and therefore did not respond.

n8 Mr. Owens stated that he also informed Respondent's safety director that "abatement action for the Flowery Branch Gold Kist facility would have to be in conformance with the regulations contained in Subpart E of the 1910 standards."

[*39]

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My colleagues nevertheless rely on the assertion in Owens' affidavit that he advised Respondent of the provisions of the Life Safety Code and specifically section 15-4 of that code in concluding that Respondent has been informed with particularity of the nature of the alleged violative condition. They also rely on Respondent's admission as to high-hazard contents at its facility. However, they do not explain how these put Respondent on notice of the nature of the alleged violative conduct. Apparently the majority believes that by reading the Life Safety Code, Respondent, particularly in view of its admission as to high-hazard contents, should have known with what it was charged. However, they neither specify what provision of the Life Safety Code identifies the alleged violative conduct nor explain why Respondent should have been able to identify the alleged violative conduct after reading the Life Safety Code. n9

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n9 It may well be that an employer upon referring to the Life Safety Code together with its own understanding of the nature of its facility would perceive what conduct the standard requires of it. However, the record now before us does not contain sufficient information to permit us to make that determination with respect to Respondent herein.

[*40]

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The Life Safety Code contains literally hundreds of specific requirements as to exits and the criteria for evaluating those qualities. Chapter 5 of the Life Safety Code, entitled "Means of Egress," imposes general requirements, among others, for the capacity of exits and their arrangement and travel distance. There are further detailed requirements for the types of stairs and their load capacity; for the type and capacity of ramps; for the use of escalators and moving walks as means of egress; for the type, capacity, and arrangement of fire escape stairs; and for the locations where the fire escape ladders are permitted. These provisions are in addition to the specific exit provisions for particular occupancies, including among others industrial occupancies, "special purpose" industrial occupancies, "high hazard" industrial occupancies, storage occupancies, and grain elevators. n10 In view of the sheer volume as well as the variety of subjects in the Life Safety Code, reference to that code alone clearly does not resolve whether Respondent had adequate notice of the alleged violative conduct. See [*41] note 9, supra.

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n10 The record does not establish the nature of the occupancy in the Main Mill Building where the allegedly violative conduct occurred, nor Respondent's understanding of its occupancy. While in reply to the Secretary's request for admissions Respondent admitted that it produces, distributes, and stores animal feed, there is no evidence regarding the specific activities which are performed in the Main Mill Building, except that grain is mixed therein. Accordingly, it is not known whether Respondent should have considered any of the provisions relating to particular occupancies.

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Nor do my colleagues' references to the high-hazard content of Gold Kist's facility and section 15-4 of the Life Safety Code provide a sufficient basis on which to conclude that the alleged violative conduct has been described with particularity. Although section 15-4 is limited in its requirements, it nevertheless refers to four distinct violative conditions and notes the applicability of NFPA Standard No. 61B. n11 Not [*42] only do my colleagues fail to identify which one of these provisions is relevant to the present case or why Respondent should have understood the relevancy of this section in defining the alleged violative conduct but in effect they concede that section 15-4 may not even apply. Thus they conclude that it cannot be determined on the present record whether Respondent's facility is a grain elevator to which section 15-4 applies. n12

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n11 Section 15-4 reads as follows:

Section 15-4. Special provisions for grain elevators.

15-4112. Noncombustible doors of the self-closing type shall be provided at each floor landing.

15-4113. An exterior stair or basket ladder type fire escape shall be provided from the roof of the working house to ground level or to the roof of an adjoining annex with access from all floors above the floor of exit discharge.

15-4114. An exterior stair or basket ladder type fire escape shall be provided from the roof of each storage annex to ground level.

* A-15-4111. For further information, see NFPA Standard No. 61B, Grain Elevators and Bulk Grain Handling Facilities. The exit requirements for elevators are based upon the possibility of grain dust explosions.

n12 Apparently the Secretary now believes Respondent's facility is a feed mill since in his brief on review he refers to the standards governing feed mills, NFPA No. 61C-1971 and NFPA No. 61C-1952.

[*43]

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Moreover, my colleagues fail to explain how Respondent's knowledge that its facility contains high-hazard material relates to the particularity issue. Clearly this reference does not explain the manner in which Respondent failed to comply with the cited standard. I would assume that the majority intends that in identifying the alleged violative conduct Respondent should consider those portions of the Life Safety Code that specifically relate to high hazard occupancies, sections 4-2 and 14-4. n13 The former section is broadly worded and provides no further guidance as to the nature of the instant charge than the citation. The latter section relates to industrial occupancies, and although that term is defined in the code the majority has not deemed it necessary to address whether Respondent's facility is in fact an industrial occupancy. n14 Moreover, the provisions relating to high hazard industrial occupancy differ significantly from those contained in section 15-4 of the code. n15 Accordingly, my colleagues have relied upon two factors in concluding that the alleged violative conduct has been described [*44] with particularity without even knowing whether those factors are relevant to the cited condition and without resolving any differences in the Life Safety Code as it relates to those two factors.

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n13 Section 4-213 provides as follows:

4-213. Special Provisions for High Hazard Contents.

4-2131. In all cases where the contents are classified as high hazard, exits shall be provided of such types and numbers and so arranged as to permit all occupants to escape from the building or structure, or from the hazardous area thereof, to the outside or to a place of safety with a travel distance of not over 75 feet, measured as specified in 5-119.

4-2132. Capacity of exits provided in accordance with 4-2131 shall be as specified in the applicable section of Chapters 8 through 16, but not less than such as to provide 1 unit for each 30 persons where exit is by outside stairs, or 1 unit for each 50 persons where exit is by doors at grade level, by horizontal exits or by Class A ramps.

Section 14-4 provides as follows:

14-4. High Hazard Industrial Occupancy.

14-4111. High hazard industrial occupancy as defined in 14-1111c shall comply with the provisions for General Industrial Occupancy, except as modified by the following paragraphs.

14-42. Exit Details.

14-421. Types of Exits.

14-4211. In addition to the types of exits for upper floors specified for General Industrial Occupancy, approved slide escapes may be used as required exits for both new and existing buildings. Slide excapes shall only be counted as exits when regularly used in drills, or for normal exit, so that occupants are, through practice, familiar with their use.

14-422. Number of Exits.

14-4221. From every point in every floor area there shall be at least 2 exits accessible in different directions. Where floor areas are divided into rooms, there shall be at least 2 ways of escape from every room, however small, except for toilet rooms so located that the points of access thereto are out of or suitably shielded from areas of high hazard.

14-423 Travel Distance to Exits.

14-4231. Exits shall be so located that it will not be necessary to travel more than 75 feet from any point to reach the nearest exit.

14-43. Protection.

14-431 Protection of Vertical Openings.

14-4311. Every vertical openin in a new or existing building of high hazard occupancy shall be enclosed or protected in accordance with Section 6-1, except that where unprotected openings are necessary to a manufacturing operation they may be permitted by the authority having jurisdiction subject to such restrictions as to occupancy, exits, and other features as the authority having jurisdiction may specify to offset the hazard of the unprotected vertical openings.

14-432. Automatic Sprinklers, Explosion Venting.

14-4321. Every high hazard occupancy shall have automatic sprinkler protection or such other protection as may be appropriate to the particular hazard, including explosion venting for any area subject to an explosion hazard, designed to minimize danger to occupants in case of fire or other emergency before they have time to utilize exits to escape.

n14 Industrial occupancies are defined at section 4-118 of the Life Safety Code as those which include

. . . factories making products of all kinds and properties devoted to operations such as processing, assembling, mixing, packaging, finishing or decorating, repairing, and similar operations. . . .

n15 For example, section 15-4 unlike section 14-4 contains no requirement for the travel distance to exits nor does it require two exits accessible in different directions from every point in every floor area. On the other hand, section 14-4 permits the use of slide escapes under certain circumstances whereas section 15-4 does not. Thus, these sections differ in their requirements as to the particular qualities of exits to which the cited standard is addressed -- the type, number, and location of exits.

[*45]

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Since my colleagues have referred to the only pleadings and documents which indicate what Respondent knew approximate to the time of the issuance of the citation, it is clear that the record does not establish that Respondent had knowledge of the alleged violative condition with particularity at the time of the issuance of the citation. Moreover, there are no other pleadings or evidence which would indicate that even at this stage of the proceedings Respondent has been informed of the alleged violative condition with particularity. Indeed not even the Secretary knows the actual basis for the allegations made in the citation.

The Secretary's uncertainty as to the actual basis for his charge is underscored first by the fact that he sought discovery in the form of an entry upon Respondent's premises for the stated purposes of "inspecting, measuring, surveying, photographing and testing all existing room spaces, doorways, hallways, corridors, passageways, balconies, ramps, stairways, enclosures, ladders and all ways of exit travel pertinent to:

(1) The main 'Mill Building' in its entirety; and,

(2) [*46] All adjacent structures or portions of structures leading or connected to said main 'Mill Building' which may be contended to represent a 'means of egress' from or to said main 'Mill Building.'

The Secretary's request stated that entry for such purposes was necessary because the Secretary "has no alternative means of securing . . . information" regarding the "kinds, numbers, location, and capacity" of exits "appropriate" to the mill building "with due regard to the character of the occupancy and the height" of the building. By his own admission, therefore, the Secretary at the time the citation was issued had no idea whatsoever of the basis for his allegation that Respondent's exits were inadequate.

Subsequently, the Secretary's counsel wrote to Judge Brady informing him that in another pending case, Ralston Purina Co., No. 76-0621, Commission Judge J. Paul Brenton concluded that 29 C.F.R. § 1910.36(b)(3) was not vague and denied the employer's motion for summary judgment. Thereafter, Respondent submitted a supplemental brief to the judge in support of a previously filed motion to dismiss. In the brief Respondent asserted that the Secretary's acting Regional Solicitor had [*47] informed counsel for Ralston Purina that the Secretary had concluded that compliance with § 1910.36(b)(3) required among other things an enclosed stair tower. Stating that both its and Ralston Purina's facilities were feed mills, Respondent argued, "Gold Kist can only assume that the Secretary takes the same position with respect to Gold Kist's feed mill." In response, the Secretary filed a brief to which he attached the Owens' affidavit, and noted that the stair tower requirement is included in section 15-4 of the Life Safety Code to which Owens' affidavit refers. Nevertheless, the Secretary refused to concede that he intended that Respondent comply in the same manner as Ralston Purina. Rather, the Secretary himself insisted that each case would have to be judged on its own facts. n16 In the same brief the Secretary went on to cite other provisions of the Life Safety Code dealing not only with the use of an enclosed stairway but also with the minimum number of exits required of whatever type. n17 In other words, even at the time he filed his response to Respondent's supplemental brief, six months after the citation was issued, the Secretary himself did not know whether he was concerned [*48] with the type or the number of Respondent's exits.

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n16 Specifically, counsel for the Secretary stated:

With regard to this reference to Ralston Purina Company, it should be noted that although Gold Kist and Ralston Purina facilities are similar to the extent that they both produce animal feed, the application of the Standard to both Respondents has obviously been applied on a case-by-case basis. Hence, fundamental requirements for means of egress for each respective facility depends upon the variables of the nature of each respective respondent's operation and the nature of each respondent's Mill Building and the character of the occupancy of each facility.

n17 Counsel stated:

For example, a review of Volume 4 of the National Fire Codes, 1972-73 Edition, reveals the following: NFPA 101-1970, Section 6-112 (eliminates the use of an open stairwell as a means of egress); NFPA 101-1970, Section 14-2114 (eliminates use of open stairwell as a means of egress, except for each floor; no verticle [sic] egress allowed); NFPA 101-1970, Section 14-2151 (establishes number of exits required in general industrial occupancies for each floor or section); NFPA 101-1970, Section 14-221 (requires all verticle [sic] openings (stairwells) to be enclosed or protected). . . .

[*49]

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In all documents filed with the Commission on review the Secretary has also failed to demonstrate that he understands the nature of the charge. In his petition for discretionary review, the Secretary asserted that the citation was on its face particular since it, inter alia, "described the violation in terms taken from the standard and indicated the hazard presented." In the same document the Secretary described the "violative omission" as the failure to provide "adequate and appropriate exits," but he did not explain what he meant and whether that phrase related to both the number and type of exits. Nor did the Secretary further explain the alleged violative condition in his brief. Moreover, although the Secretary noted in his brief that the National Fire Protection Association Sectional Committee on Grain and Food Processing Dusts of the Committee on Dust Explosion Hazards has specific provisions concerning stairs and exits in feed mills, he did not state whether any of those provisions were relevant to the present proceeding. n18

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n18 The Secretary's reference to NFPA Code No. 61C-1971 and No. 61C-1952 appears to indicate that he now believes Respondent's facility is a feed mill. This however is contraty to the Secretary's apparent initial determination on the subject as indicated by Mr. Owens' affidavit, to wit, that Respondent's facility is a grain elevator.

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In conclusion, it is clear that although Respondent knows that the Secretary believes a fire hazard exists at its facility, the conditions at its facility which have allegedly created that hazard are not known. Accordingly, even now Respondent does not have sufficient information which would have enabled it to decide whether to contest or to determine the means of abatement. Furthermore, under my test which requires that the employer possess sufficient information to make meaningful decisions at the time the citation is issued, a full evidentiary record must be developed before I am able to determine whether Respondent was given notice of the alleged violative condition with particularity. Accordingly, I would remand for development of the record. [*51] I therefore join only in the order of remand; I wholly disassociate myself from my colleagues' reasoning and disposition on the particularity and vagueness issues.