“Docket No. 78-6060 78-6061 SECRETARY OF LABOR,Complainant,v.BRABHAM-PARKER LUMBER COMPANY, Respondent.OSHRC Docket Nos. 78-6060 and 78-6061ORDER OF REMANDBefore:\u00a0 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).\u00a0 Inaccordance with the decision of the U.S. Supreme Court in American Textile ManufacturersInstitute, Inc. v. Donovan, 101 S.Ct. 2478 (1981) (\”ATMI\”), the Commission heldthat \”feasible\” under the occupational noise standard means achievable. \u00a0The Commission overruled the cost-benefit test of feasibility previously set forth inContinental Can Co., 76 OSAHRC 109\/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD ? 21,009 (No.3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977), and substituted atest consistent with ATMI.In view of this intervening change in law, the judge’s decision in Docket No.78-6060[[1\/]] with respect to the alleged violation of section 1910.95(b)(1) is vacated.\u00a0 Accordingly, the case is remanded for further proceedings, including evidentiarysubmissions, so that the interrelated issues of technological and economic feasibility canbe reconsidered in light of the test of feasibility established by Sun Ship, Inc.The judge’s decision in Docket No. 78-6060 is also vacated with respect tocitation subitem 1c, alleging that the Respondent failed to administer a \”continuingeffective hearing conservation program,\” contrary to the requirements of 29 C.F.R. ?1910.95(b)(3).[[2\/]] Because the citation did not specify how the company’s program wasdeficient, the judge vacated the citation item for lack of particularity.\u00a0 The judgeconcluded that he could not rely on the testimony at the hearing to cure the lack ofparticularity in the citation.The Commission has held consistently that the purpose of the particularity requirement insection 9(a) of the Act is to put the employer on notice as to the nature of the allegedviolation so that an informed decision regarding whether to contest the citation can bemade.\u00a0 Gold Kist, Inc. 79 OSAHRC 93\/C8, 7 BNA OSHC 1855, 1862, 1979 CCH OSHD ?23,998 (No. 76-2049, 1979), citing Gannett Corp., 81 OSAHRC 35\/A2, 4 BNA OSHC 1383,1976-77 CCH OSHD ? 20,915 (No. 6352, 1976).\u00a0 In addition to the language of thecitation, the Commission looks to other factors, including circumstances of the inspectionand the employer’s familiarity with its own work practices, as well as the pleading,discovery, hearing and decisional stages of the case, to determine whether the employerhad adequate notice.\u00a0 Id. As we held in Gold Kist, Inc., supra, \”[w]here thecitation is contested, a deficiency, if any, in a complaint or citation can be cured byfurther pleadings or discovery, thus avoiding the extreme sanction of dismissal.\” 7BNA OSHC at 1862; see Pabst Brewing Co., OSHRC Docket No. 77-1985 (\u00a0\u00a0 ,1983);cf. Cement Asbestos Products Co., 80 OSAHRC 26\/C7, 8 BNA OSHC 1151, 1980 CCH OSHD ?24,343 (No. 78-1054, 1980).In this case, the affirmative defense was not timely, because it was raisedfor the first time in the Respondent’s post-hearing brief to the judge.\u00a0 The defenseof lack of particularity is an affirmative defense that must be raised pre-hearing, in apleading or by motion, or tried by the consent of the parties.\u00a0 Wheeling-PittsburghSteel Corp., 79 OSAHRC 66\/A2, 7 BNA OSHC 1581, 1979 CCH OSHC ? 23,783 (No. 14702, 1979),citing Gannett Corp., supra.\u00a0 Even if timely raised, the Respondent’s defense lacksmerit.\u00a0 The record does not indicate that the company lacked notice of the nature ofthe alleged violation, nor does the Respondent claim either that it lacked sufficientinformation to decide whether to contest the citation or that it was prejudiced inpreparing its case.\u00a0 See Del Monte Corp., 81 OSAHRC 78\/A2, 9 BNA OSHC 2136, 1981 CCHOSHD ? 25,586 (No. 11865, 1981); Gold Kist, Inc., 79 OSAHRC 93\/C8, 7 BNA OSHC 1855, 1979CCH OSHD ? 23,998 (No. 76-2049, 1979).\u00a0 Furthermore, any perceived deficiencies inthe citation could be, and were in this case, cured at the hearing.\u00a0 See WhirlpoolCorp., 79 OSAHRC 32\/A14, 7 BNA OSHC 1356, 1979 CCH OSHD ? 23,552 (No. 9224, 1979),vacated and remanded on other grounds, 645 F.2d 1096 (D.C. Cir. 1981).Accordingly, the judge’s decision upholding the defense is vacated and thecase is remanded with respect to this citation item for further proceedings, includingfactual findings and legal conclusions on the merits.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 JAN 31 1983The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-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 in thecaption of the direction for review but, because no issue involved in Docket No. 78-6061was directed for review, the judge’s severance of the case and his disposition are notbefore us and are affirmed without review.[[2\/]] The dissent concludes that this subitem duplicates subitem 1a, whichalleges that employees were not required to wear personal protective equipment.\u00a0 Wedisagree with the dissent in light of the Secretary’s evidence.The judge vacated subitem 1c because he concluded that the citation wasinsufficiently particular.\u00a0 He did not enter any factual findings or legalconclusions as to the merits.\u00a0 Thus, the judge has not yet evaluated and weighed theevidence bearing on Respondent’s hearing conservation program.The dissent concludes that there were duplicate charges because of theSecretary’s evidence that employees were not required to wear personal protectiveequipment.\u00a0 However, this was only a part of the Secretary’s evidence in support ofthe hearing conservation program charge.\u00a0 The Secretary also presented evidenceindicating that Respondent did not instruct and train its employees in the proper use ofpersonal protective equipment.\u00a0 The industrial hygienist who conducted the inspectiontestified that a written program \”concerning the use of the ear protection as well astraining employees on how to use the ear protection\” was a requisite of an effectivehearing conservation program.\u00a0 He also stated, on the basis of his inspection and hisdiscussions of Respondent’s hearing conservation program with Mr. Brabham, that Respondentdid not have a written program for this purpose. Additionally, although Mr. Brabhamtestified extensively about his policies toward hearing protection, he did not indicatethat the company had a program to train employees in the proper use of personal protectiveequipment.\u00a0 We conclude therefore that subitems 1a and 1c allege two distinctviolations.”