“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11865 DEL MONTE CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 28, 1977DECISION (incorporating errata)Before BARNAKO, Chairman; MORAN and CLEARY,Commissioners.CLEARY, Commissioner:??????????? OnJune 4, 1975, Administrative Law Judge John J. Larkin granted a motion byrespondent, Del Monte Corporation, to dismiss the Secretary of Labor?scomplaint and vacate his citation. ?Boththe citation and the complaint alleged that respondent had failed to complywith 29 CFR ? 1910.95(b)(1) and had therefore violated section 5(a)(2) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et seq.(hereinafter ?the Act?). On July 3, 1975, the Secretary?s petition fordiscretionary review was granted. ?Theprimary issue before us is whether the Judge correctly applied the requirementof section 9(a) of the Act that a citation describe with particularity thenature of an alleged violation and the part of Commission Rule 33(a)(2)(ii)requiring a complaint to state with particularity the time, location, andcircumstances of the alleged violation. Both parties have filed briefs. We holdthat the Judge Erred in granting the respondent?s motion, and we remand thiscase for further proceedings.??????????? Thecircumstances of this case are not in dispute. On December 17, 1974, acompliance officer inspected respondent?s canning plant at 2900 East 7th Avenuein Tampa, Florida. As a result of the inspection a citation issued alleging aviolation of section 5(a)(2) for respondent?s failure to comply with 29 CFR ?1910.95(b)(1). The citation described the alleged violation as follows:Failure to reduce sound levels below thevalues of Table G 16 by use of feasible administrative or engineering controls,thereby exposing employees to the hazard of excessive noise in the followingareas:A. Cannery1. Cold Sort Area2. Slicer Oscillator Area3. Hot Sort Area4. Filler (Solbern)Area5. Can Closing (Canco)Area?B. Can Manufacturing1. Slitters Area2. Body Maker Area3. Quality Control Area4. Seamer Area5. Palletizer Area?Note 1. Compliance Schedule:Engineering Compliance Program is to besubmitted within 60 days (calendar), from date of receipt of this citation.Also, employer is to submit progress reports every 30 calendar days thereafter.Also, employer is to continue enforced usage of personal protective equipment.???????????? TheSecretary proposed that no penalty be assessed. Respondent filed a timelynotice of contest, and the Secretary thereupon filed his complaint. Thecomplaint essentially reiterated the allegations of the citation,but added allegations that 430 employees were affected by the conditionscited, and that they include general worker, can assembly line maintainers,machine operators, filler operators, attendants, palletizer operators,mechanics and inspectors.??????????? DelMonte thereafter filed a motion to dismiss, a motion for a more definitestatement, and an answer denying the substantive allegations of the complaint and also setting forth twelve affirmative defenses.Respondent contended, among other things, that: the standard citedunconstitutionally deprived it of its property, and is vague and unenforceable;[1] that it has already ?utilizedthe only feasible engineering or administrative controls available to reducenoise levels?; that the Secretary must, but had failed to, specify theadditional controls which should be utilized; and that noise levels in itsplant did not exceed the levels permitted by Table G 16. Inessence, Del Monte denied that it must comply with 1910.95(b)(1), thatit had failed to comply with 1910.95(b)(1), and that it had any legalobligation to do more than what it contended it had already done to comply.??????????? Thereafterthe parties filed various discovery motions. Both Del Monte and the Secretarymoved for the production of various documents, andrequested various admissions of facts. The Secretary moved for an orderrequiring Del Monte to permit an entry onto Del Monte?s premises.[2] So far as we are able to determine none of these discovery motions andrequests had been ruled upon or complied with when Judge Larkin scheduled ahearing on the various motions and requests.??????????? Theprimary ground urged by Del Monte in support of its motion to dismiss is a lackof particularity in the citation and complaint. Judge Larkin granted the motionon that ground. He reasoned that Congress intended that the word?particularity? be interpreted to mean ?the quality of being detailed orminute, as a description; attention to detail; minute exactness? as defined ina Webster?s dictionary. He therefore found that ?[t]he particularity of thealleged violation in the instant case has not been described . . . with ?thequality of being detailed or minute? in either the citation or complaint.? J.D.at 3. The Judge then held that in order to meet the particularity requirementof section 9(a), a citation alleging noncompliance with 1910.95(b)(1) muststate the following: (1) the location of the excessive noise levels within thelisted plant areas; (2) the location of the source of the excessive noise; (3)the specific magnitude and duration of the sound levels; (4) whether theSecretary applied any part of the cumulation formula contained in the note toTable G 16; (5) identification of the exposed employees; and (6) what feasibleengineering or administrative controls are necessary to lower the noise levelswithin the limits specified in Table G 16.The Particularity Requirement of Section9(a)??????????? Section9(a) of the Act does not require that a citation state the elements of a causeof action, J. L. Mabry Grading, Inc., 9 OSAHRC 98, BNA 1 OSHC 1211, CCH1971 73 OSHD para. 15,686 (No. 285, 1973), or that an employer be informed withparticularity of how he must abate a hazardous condition. See Allis-ChalmersCorp., BNA 3 OSHC 1629, 1632, CCH 1975 76 OSHD para. 20,065 (No. 5599,1975), aff?d No. 75 2125 (7th Cir., July 28, 1976). Del Monte concedes that italso does not require that the Secretary state his evidence. Rather, section9(a) states that a citation ?shall describe with particularity the nature of the violation . . .?(emphasis added).??????????? Evena citation facially lacking sufficient particularityto comply with section 9(a) need not, however, be declared void as a matter oflaw if, as Chairman Barnako observed in GannettCorporation, BNA 4 OSHC 1383, 1384, CCH 1976 77 OSHD para. 20,915 (No. 6352,1976), on the facts of the particular case before us, the purposes of theparticularity requirement may be fulfilled in subsequent stages of the case.[3] In this case, Del Montehas already contested the citation, and adequate identification of theconditions which may require abatement may be accomplished during the pleading,discovery, hearing and decisional phases of the litigation. See Gannett Corp.,supra; Ringland-Johnson, Inc., BNA 4 OSHC 1343, 1344 n.1 CCH 1976 77OSHD para. 20,801 (No. 3028, 1976), pet. for review filed, No. 76 1687 (8thCir., August 12, (1976); Allis-Chalmers Corp., supra. See also JamesL. Mills Painting Contractor, Inc., BNA 4 OSHC 1415, CCH 1975 76 OSHD para.20,395 (No. 14425, 1976) (Administrative Law Judge) (evidence of noise levelsnot confined to allegations of citation). Also, it cannot be said here that DelMonte was prevented from making an informed choice on whether to abate orcontest. Del Monte is of the view that it has no legal obligation to complywith the cited standard no matter how particular the citation may be initially.We therefore conclude that at this stage of this case, it does not serve thepurposes of section 9(a) of the Act to consider a motion to vacate the citationon particularity grounds.[4]??????????? TheSecretary contends, however, that even at the conclusion of the litigation, thecitation, as illuminated by the pleadings, by information gained through discovery,or by evidence in the hearing, need not meet the strict tests of particularitywhich the Judge would require. We agree.??????????? We donot consider here the questions of whether the citation states a claim, or whatare the elements of proof necessary to support a finding of a violation, orwhat facts the parties should disclose in preparation for a hearing, on themerits. Answers to those questions are given by rules of pleading, thesubstantive law governing section 5(a)(2) and subparagraph (1) of 1910.95(b),and various rules of discovery?not by section 9(a) of the Act.??????????? Here,section 9(a) requires that the employer be given fair notice of the location ofthe excessive noise levels with enough particularity that he can proceed toabate the violative conditions established by the Secretary. Such fair noticedoes not require minute detail. J. L. Mabry Grading, Inc., supra. See Allis-ChalmersCorp., supra. The divided Commission decision in B. W. Harrison LumberCo., BNA 4 OSHC 1091, CCH 1975 76 OSHD para. 20,623 (No. 2200, 1976), pet.for review filed, No. 76 2619, 5th Cir., June 14, 1976, does not require acontrary result. In that case, the Commissioners considered whether anuncontested citation was sufficiently particular to enable the Commission todetermine whether the employer had failed to comply with its requirements, so as to justify the imposition of additional monetarypenalties. Here, the question is how particular the citation should be when itbecomes a final abatement order, and different considerations control.Commission Rule 33(a)(2)(ii)??????????? JudgeLarkin also held, and Del Monte urges, that the Secretary?s complaint violatesthe particularity requirement of Commission Rule 33(a)(2)(ii). In pertinentpart, the rule states:Rule 33 Employer contests.(a) Complaint(2) The complaint shall set forth allalleged violations . . . which are contested, stating with particularity:(ii) The time, location, place andcircumstances of each such alleged violation;\u00a0(Emphasis added). We do not, however, give this rule astrict Commission construction. Our proceedings are formal adjudicationssubject to 5 U.S.C. 556 and 557. Hence, notice pleading is used.Allis-Chalmers Corp., supra. Rule 33(a)(2)(ii) must be considered in thiscontext. In notice pleading an essential consideration is whether there is fairnotice of the circumstances of the alleged violation that will permit a fairdefense.??????????? Wehold that our rule had not been violated. Respondent knows when its plant was inspected, and has been sufficiently informed of thelocation and circumstances of the alleged violation to be put to its defense.??????????? Evenif the complaint were so lacking in particulars thatthe employer could not prepare his answer, dismissal would not necessarily bean appropriate avenue of relief. The employer may cure the problem by movingfor a more definite statement under Fed. R. Civ. p. 12(e).[5] To prepare for trial,discovery may reveal whatever additional facts may be necessary. Also, theemployer may test the sufficiency of the complaint by moving for dismissalunder Fed. R. Civ. p. 12(b)(6). Because it did not yet appear beyond areasonable doubt that the Secretary can prove no set of facts in support of hisclaim,[6] dismissal of the complaintwas improper. proper. Smith?s Transfer Corp., BNA 3 OSHC 1088, 1974 75OSHD para. 19,544 (No. 5786, 1975).[7]??????????? TheJudge?s order is therefore vacated, and the case is remanded for furtherproceedings. The Administrative Law Judge shall dispose of all pending motionsand requests with expedition. SOORDERED.?FOR THE COMMISSION:?William S. McLaughlinEXECUTIVE SECRETARYBY: Gloria W. White, Acting Executive SecretaryDATED: JAN 28, 1977?BARNAKO, Chairman, Concurring:??????????? Ijoin in the order for remand because our decision in Gannett Corporation, No.6352, BNA 4 OSHC 1383, CCH OSHD para. 20,915 (May 3, 1976) requires thatresult. That is all that need be said, and I therefore do not join in mycolleague?s discussion of the particularity issue.?MORAN, Commissioner, Concurring:??????????? Iagree with Chairman Barnako that this case should beremanded for the reasons set forth in Secretary v. Gannett Corporation,OSAHRC Docket No. 6352, May 3, 1976. As in the Gannett case, the limited recordbefore us prevents us from determining whether the citation adequately informedrespondent of the exact nature of the alleged violation in a manner whichcomplies with the particularity requirements of 29 U.S.C. ? 658(a).??????????? Itmust be emphasized that respondent is free to renew its particularity argumenton remand should the evidence indicate that the citation was not sufficientlyprecise to permit an informed decision on the question of filing a notice ofcontest, achieving required abatement, or preparing an adequate defense. Secretaryv. B. W. Harrison Lumber Company, OSAHRC Docket No. 2200, April 14, 1975.An employer is not required to speculate on the scope of a citation. Brennanv. OSAHRC and Republic Creosoting Company, 501 F.2d 1196, 1201 (7th Cir.1974).??????????? Thelead opinion, despite the use of the collective ?we? several times therein,represents only the views of Commissioner Cleary on the issue of particularity[8] insofar as they are not inconsonance with, or go beyond, the Commission holding in the Gannett case.Respondent?s defense has not been rejected by this decision but has been merelypostponed until a more informed determination as to its validity can be made.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11865 DEL MONTE CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 4, 1975APPEARANCES:Edwin A. Hernandez, Esquire, appearing forthe United States Department of Labor, Atlanta, Georgia.\u00a0Allen M. Blake, Esquire, appearing forrespondent, Tampa, Florida.?ORDER GRANTING MOTION TO DISMISS CITATIONAND COMPLAINTLARKIN, Judge??????????? Respondentis a corporation doing business, among other places, at 2900 East 7th Avenue,Tampa, Florida. Its stock is listed on the New York Stock Exchange. As a resultof an inspection made on December 17, 1974, by a compliance officer of thecomplainant, a citation was issued on December 24, 1974, alleging thatrespondent violated section 5(a)(2) of the Act for failure to conform with 29CFR 1910.95(b)(1). The alleged violation is described in the citation asfollows:Failure to reduce sound levels below thevalues of Table G?16 by use of feasible administrative or engineering controls,thereby exposing employees to the hazard of excessive noise of the followingareas:A. Cannery1. Cold Sort Area2. Slicer Oscillator Area3. Hot Sort Area4. Filler (Solbern)Area5. Can Closing (Canco)Area?B. Can Manufacturing1. Slitters Area2. Body Maker Area3. Quality Control Area4. Seamer Area5. Palletizer Area?NOTE 1. Compliance Schedule:Engineering Compliance Program is to besubmitted within 60 days (calendar), from date of receipt of this citation.Also, employer is to submit progress reports every 30 calendar days thereafter.Also, employer is to continue enforced usage of personal protective equipment.????????????? Section1910.95(b)(1) of 29 CFR states:When employees are subjected to soundexceeding those listed in Table G?16, feasible administrative or engineeringcontrols shall be utilized. If such controls fail to reduce sound levels withinthe levels of Table G?16, personal protective equipment shall be provided andused to reduce sound levels within the levels of the table. Table G-16 Permissible Noise Exposures[9] Duration per day, hours Sound level dba response 8 90 6 92 4 95 3 97 2 100 1 ? 102 1 105 ? 110 \u00a0??????????? OnJanuary 17, 1975, respondent filed its notice of contest. Complainant filed hiscomplaint on January 24, 1975. On March 11, 1975, respondent filed its answerin the form of a general denial together with a motion to dismiss thecomplaint. The parties briefed the motion and a hearing on the motion was heldon April 23, 1975, in Tampa, Florida.??????????? Therespondent argues that the citation fails to meet the requirements of section9(a) of the Act specifying as pertinent that ?each citation shall be in writingand shall describe with particularity the nature of the violation . . .???????????? Respondentargues further that the complainant fails to meet the requirements of 29 CFR2200.33(a)(2) of the Commission?s Rules of Procedure providing as pertinent asfollows:?The complaint shall set forth all allegedviolations and proposed penalties which are contested, stating withparticularity:?(ii) The time, location, place andcircumstances of each such alleged violation; . . .??????????? Thecomplainant argues that under the Federal Rules of Civil Procedure, practiceand case law, its citation and complaint need only state generally the type oflitigation involved and that pleadings before an administrative agency ?. . .may be informal and the sufficiency of the statements therein is not to bemeasured by the requirements of a complaint or initial pleading in a courtproceeding, whether civil or criminal.???????????? Respondent?smotion is granted.??????????? Section9(a) of the Act requires that the citation ?shall describe with particularitythe nature of the violation, . . .? ?Particularity? is defined in Webster?s Dictionaryas ?the state, quality, or fact of being particular; specifically, the qualityof being detailed or minute, as a description; attention to detail, minuteexactness.? 29 CFR 2200.33(2)(ii) of the Commission?s Rules of Procedure requiresthat the complaint state with particularity: ?The time, location, place andcircumstances of each such alleged violation; . . . ?29 CFR 2200.2 of theCommission?s Rules of Procedure incorporates the Federal Rules of CivilProcedure only if a specific rule of the Commission is inapplicable.??????????? Theparticularity of the alleged violation in the instant case has not beendescribed to the respondent with ?the quality of being detailed or minute? ineither the citation or complaint. Respondent has been advised only that thesound levels were excessive in specified areas. Respondent has not beenadvised, much less with any particularity, of the location of excessive noiselevels within the above mentioned areas; the location of the equipment orsource creating the alleged excessive noise; the specific time or duration ofthe sound levels; the dBA slow response; the Secretary?s application if any, ofthe footnote applicable to table G?16; or the employee or employees exposed.Respondent has not been advised of what constitutes ?feasible administrative orengineering controls? or in other words, the nature of the corrective actionnecessary to lower the noise levels to within the limits specified in tableG?16 of the standard.??????????? Thereason the Congress required that the citation ?shall describe withparticularity the nature of violation? is obvious. Upon receipt of thecitation, section 10(a) of the Act gives the employer only fifteen working daysto contest the citation or else it becomes a final order and is not subject toreview or litigation even before the judiciary. If an employer is not givennotice with particularity, he is in a quandary as to whether he is in violationof the Act or even whether the condition may be abated. Hence, he is forced tofile a notice of contest in an attempt to obtain the?particulars? of the alleged violation. The filing of the notice of contest maycreate legal complications not to mention extensive litigation costs otherwiseavoidable if the citation is allowed to become finalunder section 10(a). For example, in the instant case, no penalty was proposed.However, under the Commission?s view, it may assess or increase a penalty eventhough the Secretary has proposed no penalty. Cf. Dale M. MaddenConstruction Inc. v. Hodgson and OSAHRC (CA 9, 1974) 502 F.2d 278. Suchpenalty under section 17 of the Act can be up to $1,000. If the employer allowsthe citation to become final by failing to contest, section 17 provides thepenalty may amount to $10,000 per violation, if the violation is repeated orwillful. The employer may be fined up to $1,000 per day for failure to abatethe condition. If the Secretary prescribes immediate abatement of the allegedviolation, the $1,000 penalty for failure to abate may apply even within the fifteen day working period provided for filing a notice ofcontest. Cf. Secretary of Labor v. OSAHRC and Kesler & Sons ConstructionCo. ?? F.2d ?? No. 74 1518, March 28, 1975. These references are to civilpenalties only and do not include possible criminal sanctions under section 17of the Act. Certainly, under such far reaching provisions, Congress intendedthat an employer is entitled to receive proper initial notification and anotice in strict conformance with the particularity requirements of section9(a) of the Act. As stated by the United States Court of Appeals for theSeventh Circuit in Secretary of Labor v. OSAHRC and Republic CreosotingCompany (1974, 501 F.2d, page 1201):?Employers subject to safety orderscarrying the possibility of substantial penalties should not have to speculateas to the scope of a citation Imprecise orders, of course, run the risk ofbeing set aside but resort to the expenses, delays, and uncertainties oflitigation should not be necessary.????????????? It isconcluded that Congress meant the word ?particularity? to be used in its commonusage and definition to mean as stated in Webster?s ?. . . specifically thequality of being detailed or minute, as a description; attention to detail;minute exactness.???????????? Thecomplainant?s failure to describe the violation with particularity in theinstant case must result in dismissal of the citation and complaint.??????????? Inview of the granting of respondent?s motion to dismiss, the other motions andissues raised need not be reached.Wherefore it is ORDERED:??????????? Thecitation issued on December 24, 1974, and the complaint filed on January 17,1975, are dismissed with prejudice.?Dated this 4th day of June,1975.?JOHN J. LARKINJudge OSAHRC[1] The Commissionrecently rejected this defense in Turner Co., No. 3635 (August 24, 1976).[2] The motionfollowed an unanswered request by the Secretary to enter upon Del Monte?s landfor discovery purposes.[3] We note that DelMonte could have received clarification of the citation at earlier stages ofthis case. Under the procedures prescribed by 29 CFR 1903.19, Del Monte couldhave requested an informal conference with OSHA?s Assistant Regional Directorto discuss ?any issues raised by [a] . . . citation . . ..? The appropriateOSHA officials could then have issued an amended citation (see e.g., AcmeMetal, Inc., BNA 3 OSHC 1932, CCH 1975 76 OSHD para. 20,364 (Nos. 1811& 1931, 1976)), or could have, in accordance with Commission Rule 33(a)(3),amended the citation in the complaint. Henkels & McCoy, Inc., BNA 4OSHC 1502, CCH 1976 77 OSHD para. 20,944 (No. 8842, 1976) (lead and concurringopinions). If no contest of the citation had been filed, the particularityissue could have been raised in a failure to abate proceeding under the dividedCommission decision in B.W. Harrison Lumber Co., BNA 4 OSHC 1091, CCH1975?76 OSHC para. 20,263 (No. 2200, 1976), petition for review filed, No.76?2619, 5th Cir., June 14, 1976.\u00a0[4] In other words,because the filing of Del Monte?s notice of contest tolls any abatement period,it does not detract from the Act?s goal of prompt abatement to postponeconsideration of a particularity objection until threshold questions of legalrights and obligations of the parties giving rise to this dispute are resolved.See 5 U.S.C. 554(e). Cf. American Airlines, Inc., No. 6706 (August 24,1976).[5] That rule statesin pertinent part as follows:(e) Motion for More Definite Statement. Ifa pleading to which a responsive pleading is permitted is so vague or ambiguousthat a party cannot reasonably be required to frame a responsive pleading, hemay move for a more definite statement before interposing his responsivepleading. The motion shall point out the defects complained of and the detailsdesired. . . .\u00a0[6] The Secretary mustshow that employees were or are being subjected to excessive noise levels andthat the employer failed to use feasible engineering or administrativecontrols. See generally the Commission?s divided decision in Continental CanCo., Inc., Nos. 3973, etc. (August 24, 1976). The controls need not reduceemployee exposure to Table G 16 limits. Id.\u00a0[7] I have examinedmy colleagues? concurring opinions, and I respectfully suggest that Gannett doesnot meet all of the contentions made by Del Monte. For example, respondentargues that the Judge?s action here is consistent with Commission Rule33(a)(2)(ii); that the particularity requirement of section 9(a) requires thatall of the elements of a noise violation be described in minute detail; and thatforcing an employer to contest a citation simply to be informed of what he mustabate, and thereafter awaiting the outcome of the litigation before thenecessary facts are stated with particularity, frustrates the Congressionalgoal of prompt abatement. These contentions go far beyond the narrow holdingand analysis of Gannett.[8] Chairman Barnakospecifically disassociates himself from Commissioner Cleary?s discussion onthis issue. So do I. Consequently, the lead opinion of Commissioner Cleary issimply a separate concurrence to the Commission?s majority opinion in this casewhich, for reasons beyond my comprehension, is stated in the ?concurring?opinion of Barnako and Moran.[9] When the dailynoise exposure is composed of two or more periods of noise exposures ofdifferent levels, their combined effect should be considered, rather than theindividual effect of each. If the sum of the following fractions: C1\/T1+,c2\/T2+. . . Ca\/Ta exceeds unity, then, the mixed exposure should be considered toexceed the limit value. Cn indicates the total time of exposure at a specifiednoise level, and In indicates the total time of exposure permitted at thatlevel.Exposureto impulsive or impact noise should not exceed 140 DB peak sound pressure 140dB peak sound pressure.”