SECRETARY OF LABOR,
Complainant,

v.

PASCHEN/MORRISON-KNUDSEN/KENNY,
A JOINT VENTURE,
Respondent.

OSHRC Docket No. 80-6448

ORDER

Former Administrative Law Judge Ralph B. Maxwell affirmed four of five items in a citation issued to Paschen/Morrison- Knudsen/Kenny, a joint venture, engaged in a tunneling operation, and assessed a combined penalty of $3,300, the amount recommended by the Secretary.  The judge found that the employer's violations of standards requiring testing for flammable gases and oxygen deficiency were "serious", but not "willful."  The Secretary petitioned for review solely on whether the judge should have characterized these two violations as "willful."  Review was directed solely on that issue.  The Secretary has not suggested that a higher penalty should be assessed if the violations are found to be "willful"; on the contrary, he asks that the $3,300 penalty assessed by the judge be affirmed.  Furthermore, inasmuch as neither party has taken issue with the abatement requirements of the citation items affirmed by the judge, abatement is not in controversy here.  In light of these circumstances, we conclude that the issue of willfulness does not warrant Commission review.  See P & Z Company, Inc., 82 OSAHRC 8/C8, 10 BNA OSHC 1427, 1428, 1982 CCH OSHD ¶ 25,937, p. 32,490 (No. 76-431, 1982)(direction for review vacated because review no longer provident).

Accordingly, the direction for review is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  APR 24 1986

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