“SECRETARY OF LABOR,Complainant,v.BRABHAM-PARKER LUMBER COMPANY,Respondent.OSHRC Docket Nos. 78-6060 and 78-6061_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 inAmerican Textile Manufacturers Institute, Inc. v. Donovan, 101 S.Ct.2478 (1981) (\”ATMI\”), the Commission held that \”feasible\” under theoccupational noise standard means achievable. The Commission overruledthe cost-benefit test of feasibility previously set forth in ContinentalCan Co., 76 OSAHRC 109\/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD ? 21,009(No. 3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26,1977), and substituted a test consistent with ATMI.In view of this intervening change in law, the judge’s decision inDocket No. 78-6060[[1\/]] with respect to the alleged violation ofsection 1910.95(b)(1) is vacated. Accordingly, the case is remandedfor further proceedings, including evidentiary submissions, so that theinterrelated issues of technological and economic feasibility can bereconsidered in light of the test of feasibility established by SunShip, Inc.The judge’s decision in Docket No. 78-6060 is also vacated with respectto citation subitem 1c, alleging that the Respondent failed toadminister a \”continuing effective hearing conservation program,\”contrary to the requirements of 29 C.F.R. ? 1910.95(b)(3).[[2\/]] Becausethe citation did not specify how the company’s program was deficient,the judge vacated the citation item for lack of particularity. Thejudge concluded that he could not rely on the testimony at the hearingto cure the lack of particularity in the citation.The Commission has held consistently that the purpose of theparticularity requirement in section 9(a) of the Act is to put theemployer on notice as to the nature of the alleged violation so that aninformed decision regarding whether to contest the citation can bemade. Gold Kist, Inc. 79 OSAHRC 93\/C8, 7 BNA OSHC 1855, 1862, 1979 CCHOSHD ? 23,998 (No. 76-2049, 1979), citing Gannett Corp., 81 OSAHRC35\/A2, 4 BNA OSHC 1383, 1976-77 CCH OSHD ? 20,915 (No. 6352, 1976). Inaddition to the language of the citation, the Commission looks to otherfactors, including circumstances of the inspection and the employer’sfamiliarity with its own work practices, as well as the pleading,discovery, hearing and decisional stages of the case, to determinewhether the employer had adequate notice. Id. As we held in Gold Kist,Inc., supra, \”[w]here the citation is contested, a deficiency, if any,in a complaint or citation can be cured by further pleadings ordiscovery, thus avoiding the extreme sanction of dismissal.\” 7 BNA OSHCat 1862; see Pabst Brewing Co., OSHRC Docket No. 77-1985 ( ,1983); cf.Cement Asbestos Products Co., 80 OSAHRC 26\/C7, 8 BNA OSHC 1151, 1980 CCHOSHD ? 24,343 (No. 78-1054, 1980).In this case, the affirmative defense was not timely, because it wasraised for the first time in the Respondent’s post-hearing brief to thejudge. The defense of lack of particularity is an affirmative defensethat must be raised pre-hearing, in a pleading or by motion, or tried bythe consent of the parties. Wheeling-Pittsburgh Steel Corp., 79 OSAHRC66\/A2, 7 BNA OSHC 1581, 1979 CCH OSHC ? 23,783 (No. 14702, 1979), citingGannett Corp., supra. Even if timely raised, the Respondent’s defenselacks merit. The record does not indicate that the company lackednotice of the nature of the alleged violation, nor does the Respondentclaim either that it lacked sufficient information to decide whether tocontest the citation or that it was prejudiced in preparing its case. See Del Monte Corp., 81 OSAHRC 78\/A2, 9 BNA OSHC 2136, 1981 CCH OSHD ?25,586 (No. 11865, 1981); Gold Kist, Inc., 79 OSAHRC 93\/C8, 7 BNA OSHC1855, 1979 CCH OSHD ? 23,998 (No. 76-2049, 1979). Furthermore, anyperceived deficiencies in the citation could be, and were in this case,cured at the hearing. See Whirlpool Corp., 79 OSAHRC 32\/A14, 7 BNA OSHC1356, 1979 CCH OSHD ? 23,552 (No. 9224, 1979), vacated and remanded onother grounds, 645 F.2d 1096 (D.C. Cir. 1981).Accordingly, the judge’s decision upholding the defense is vacated andthe case is remanded with respect to this citation item for furtherproceedings, including factual findings and legal conclusions on the merits.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JAN 31 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] Docket No. 78-6061 was included along with Docket No. 78-6060 inthe caption of the direction for review but, because no issue involvedin Docket No. 78-6061 was directed for review, the judge’s severance ofthe case and his disposition are not before us and are affirmed withoutreview.[[2\/]] The dissent concludes that this subitem duplicates subitem 1a,which alleges that employees were not required to wear personalprotective equipment. We disagree with the dissent in light of theSecretary’s evidence.The judge vacated subitem 1c because he concluded that the citation wasinsufficiently particular. He did not enter any factual findings orlegal conclusions as to the merits. Thus, the judge has not yetevaluated and weighed the evidence bearing on Respondent’s hearingconservation program.The dissent concludes that there were duplicate charges because of theSecretary’s evidence that employees were not required to wear personalprotective equipment. However, this was only a part of the Secretary’sevidence in support of the hearing conservation program charge. TheSecretary also presented evidence indicating that Respondent did notinstruct and train its employees in the proper use of personalprotective equipment. The industrial hygienist who conducted theinspection testified that a written program \”concerning the use of theear protection as well as training employees on how to use the earprotection\” was a requisite of an effective hearing conservationprogram. He also stated, on the basis of his inspection and hisdiscussions of Respondent’s hearing conservation program with Mr.Brabham, that Respondent did not have a written program for thispurpose. Additionally, although Mr. Brabham testified extensively abouthis policies toward hearing protection, he did not indicate that thecompany had a program to train employees in the proper use of personalprotective equipment. We conclude therefore that subitems 1a and 1callege two distinct violations.”