Pabst Brewing Company

Plain-English summary

The Commission vacated the judge's ruling on Pabst Brewing Company's alleged failure to use feasible noise controls because an intervening decision replaced the prior cost-benefit test with an achievable-controls test. It remanded for additional evidence and reconsideration of technological and economic feasibility. The Commission rejected Pabst's argument that the citation had to identify a specific feasible control method. It held that a citation must give notice of the alleged violation, not prescribe abatement, and that Pabst had shown neither inadequate notice nor prejudice.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.95(b)(1).
• Outcome: Noise-control ruling vacated and case remanded under the new feasibility test; particularity defense rejected.
• Key point: A citation need not specify the employer's abatement method when it otherwise provides adequate notice of the alleged violation and the employer is not prejudiced.

Full text (OSHRC public release)

Docket No. 77-1985

SECRETARY OF LABOR,

Complainant,

v.

PABST BREWING COMPANY,

Respondent.

OSHRC Docket No. 77-1985

ORDER OF REMAND

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

On December 17, 1982, the Commission issued its decision in Sun Ship, Inc.,
82 OSAHRC , 11 BNA OSHC 1028, 1983 CCH OSHD � 26,353 (No. 16118, 1982).  In
accordance with the decision of the U.S. Supreme Court in American Textile Manufacturers
Institute, Inc. v. Donovan, 101 S.Ct. 2478 (1981) ("ATMI"), the Commission held
that "feasible" under the occupational noise standard means achievable.
  The Commission overruled the cost-benefit test of feasibility previously set forth
in Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD � 21,009 (No.
3973, 1976), appeal withdrawn, No. 76-3229 (9th Cir. Apr. 26, 1977), and substituted a
test consistent with ATMI.

In view of this intervening change in law, the judge's decision with respect
to the alleged violation of section 1910.95(b)(1) is vacated.  The case is remanded
for further proceedings, including evidentiary submissions, so that the interrelated
issues of technological and economic feasibility can be reconsidered in light of the test
of feasibility established by Sun Ship, Inc. [[1/]]

Pabst Brewing Company argues that the citation lacked sufficient
particularity because it did not identify at least one noise control method which the
Secretary of Labor believed was feasible.  In Pabst's view, this was necessary to
guard against an unfounded citation, to promote prompt abatement, and to provide fair
notice of the alleged violation.  The judge rejected Pabst's defense on the basis of
Commission precedent that upheld similar noise citations.  See Gannett Corp., 81
OSAHRC 35/A2, 4 BNA OSHC 1383, 1976-77 CCH OSHD � 20,915 (No. 6352, 1976); see also Del
Monte Corp., 77 OSAHRC 17/D12, 4 BNA OSHC 2035, 1976-77 CCH OSHD � 21,536 (No. 11865,
1977).

The purpose of the particularity requirement in section 9(a) of the Act is to
put the employer on notice as to the nature of the alleged violation.  The Secretary
is not required to state with particularity how the employer is to abate the cited
violation.  Del Monte Corp., supra; Gannett Corp., supra.  When the language of
a citation lacks sufficient particularity the requirements of section 9(a) may be
fulfilled in later stages of the proceeding.  Del Monte Corp., supra; cf. Cement
Asbestos Products Co., 80 OSAHRC 26/C7, 8 BNA OSHC 1151, 1980 CCH OSHD � 24,343 (No.
78-1054, 1980).

Pabst does not argue that it lacked sufficient information in this case to
decide whether to contest the citation or that it was prejudiced in preparing its defense.
  The Commission has held that the ultimate sanction of vacating a citation should be
taken only when this showing has been made.  Id.; Gold Kist, Inc., 79 OSAHRC 93/C8, 7
BNA OSHC 1855, 1979 CCH OSHD � 23,998 (No. 76-2049, 1979).  Accordingly, the judge's
ruling on particularity is affirmed. 

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  JAN 31 1983

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1/]] Chairman Rowland would not remand the case for further proceedings.
  Consistent with his dissenting opinion in Sun Ship, he concludes that the
requirement in section 1910.95(b)(1) that feasible administrative or engineering controls
be utilized is invalid. Because of this conclusion, Chairman Rowland does not reach
Pabst's particularity argument which the majority discuss in the succeeding paragraphs of
their opinion.