United States of America OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1120 20th Street, N.W., Ninth Floor Washington, DC 20036-3457 SECRETARY OF LABOR,Complainant, v.OSHRC Docket No. 08-0088ACME ENERGY SERVICES d/b/a BIG DOG DRILLING, and its successors, Respondent. BRIEFING NOTICE The issues that follow have been identified by the Review Commission as of particular interest on review.  The parties, however, are free to brief issues that are presented in the Petition for Discretionary Review in addition to the ones enumerated below. (1) Did the judge err in concluding that neither Respondent nor its industry recognized the hazard alleged under § 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(1)? a. Commissioner Thompson asks the parties to address the following:  In concluding that there was no industry recognition, did the judge articulate with reasonable specificity sufficient for review a reliability or relevance determination regarding expert testimony within the scope of Fed. R. Evid. 702?  If so, must the Review Commission apply an abuse of discretion standard to review the judge’s decision to exclude or disregard expert testimony covered by Fed. R. Evid. 702?  If so, did the judge abuse his discretion? (2) Did the judge err in concluding that the Secretary failed to establish there was a feasible means of abatement that would eliminate or materially reduce the hazard? The parties are advised that when the merits or characterization of an item are before the Commission for review, the appropriateness of the penalty is also subject to review. Accordingly, the parties may address the amount of the penalty if they so choose. All briefs are to be filed in accordance with Commission Rule 93.1 The first brief is to be filed within 40 days of this notice. A party who does not intend to file a brief must notify the Commission in writing setting forth the reason therefore within the applicable time for filing briefs, and shall serve a copy on all other parties. The time for filing briefs (or similar notices of intent) of opposing parties shall commence on the date of service. BY DIRECTION OF THE COMMISSION Dated: January 26, 2010 /s/ Ray H. Darling, Jr. Executive Secretary 08-0088 Notice is given to the following: Lee Grabel, Attorney Office of the Solicitor, U.S. DOL 200 Constitution Ave., N.W. Washington, D.C. 20210 Steven R. McCown, Esq. Littler Mendelson, P.C. 2001 Ross Avenue, Suite 1500 Lock Box 116 Dallas, TX 75201-2931 1 The Commission requests that all briefs include an alphabetical table of authorities with references to the pages on which they are cited, and that an asterisk be placed in the left-hand margin of the table to indicate those authorities on which the brief principally relies. The Commission also requests that copies of cited authority, other than statutes, case law, law journal articles and legal treatises, be provided to the Commission and to the opposing party. Parties should be cautioned that these materials will be considered only if appropriate. ?? ?? ?? ?? 3