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SECRETARY OF LABOR,
	Complainant,
								OSHRC Docket No. 97-0152

BEAVER PLANT OPERATIONS, INC.,
	Respondent.

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*/ORDER/*

Before: ROGERS, Chairman; and WEISBERG, Commissioner.

BY THE COMMISSION:

On September 30, 1999, the Commission affirmed a citation issued to
Beaver Plant Operations, Inc. ("Beaver") by the Secretary of Labor
("Secretary") under the Occupational Safety and Health Act of 1970, 29
U.S.C. §§ 651-78. /Beaver Plant Operations,/ 18 BNA OSHC 1972, 1999 CCH
OSHD ¶ 31,948 (No. 97-0152, 1999).^(1) <#N_1_> On appeal, the First
Circuit reversed the Commission's decision, holding that because "Beaver
lacked adequate notice" of the Commission's interpretation of the
standard at issue, the citation must be vacated. /Beaver Plant
Operations v. Secretary,/ 223 F.3d 25, 32 (1st Cir. 2000). The Court
noted that "proof of Beaver's 'actual knowledge' of a hazardous
condition could negate the question of fair notice," but "[w]ithout
factual findings from the Commission or the ALJ," it "decline[d] to
conclude, based on this record, that Beaver had knowledge of a hazardous
condition." The court remanded the case to the Commission "for
proceedings consistent with [its] opinion." /Id./ at 32.

Pursuant to the remand order, we have reviewed the record for further
evidence of "Beaver's awareness of a hazardous condition" and have found
no evidence, other than that already found insufficient by the Court, to
establish such knowledge on Beaver's part. Accordingly, we vacate the
citation and penalty.

_/s/ _


Thomasina V. Rogers

Chairman

_/s/ _


Stuart E. Weisberg

Commissioner



Date: _November 30, 2000 _





































1. Commissioner Weisberg did not participate in that decision.