“Docket No. 88-2484_88-2567 SECRETARY OF LABOR,Complainant,v.ARCO CHEMICAL CO.,Respondent.OSHRC Docket No. 88-2484SECRETARY OF LABOR,Complainant,v.LYONDELL PETROCHEMICAL CO.,Respondent. OIL, CHEMICAL & ATOMICWORKERS INTERNATIONALUNION, LOCAL 4-227Intervenor.OSHRC Docket No. 88-2567ORDER OF REMANDBefore: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:For the reasons set forth below, the Commission hereby vacatesthe Direction for Review in Lyondell Petrochemical Co., OSHRC Docket No. 88-2567,and remands that case, along with Arco Chemical Co., OSHRC Docket No. 88-2484, to theDeputy Chief Administrative Law Judge for assignment and further proceedings consistentwith the recent decision of the Third Circuit in Dole v. Arco Chemical 921 F.2d 484 (3dCir. 1990).Both of these cases arose from a fatality inspection ofLyondell Petrochemical Company’s facility in Houston, Texas, by the Occupational Safetyand Health Administration (\”OSHA\”) of the United States Department of Labor. Afire extinguisher had exploded at Lyondell’s facility while an Arco employee wasattempting to charge it during a fire control training exercise. The employee was killedas a result of the explosion.Following the OSHA inspection, the Secretary issued a citationto Arco. The citation, as amended by the Complaint, alleged that Arco had failed toproperly inspect the fire extinguisher, in violation of 29 C.F.R. ? 1910.157(e)(1), andhad failed to perform hydrostatic testing upon the fire extinguisher, in violation of ?1910.157(f)(4). Arco contested those allegations and moved for summary judgment before thejudge on the ground, among others, that it did not own or control the equipment. TheSecretary then moved to amend the Complaint to delete the ? 1910.157(f)(4) item and toallege instead a violation of ? 1910.156 (d). The latter provision covers fire brigades,and states in part that [f]ire fighting equipment that is in damaged or unserviceablecondition shall be removed from service and replaced.\”The judge denied the motion to amend and granted summaryjudgment to Arco, without articulating the reasoning for his rulings. He merely statedthat Arco’s arguments were \”well taken.\” The case was not directed for review.(There were no members of the Commission then serving.) On appeal, the Third Circuitconcluded that the judge abused his discretion in failing to allow the Secretary to amendher Complaint. It remanded the case to the Commission for further proceedings. 921 F.2d at484-85.Lyondell was cited for noncompliance with, among otherprovisions, the fire extinguisher testing requirement at 29 C.F.R. ? 1910.157(e)(2), andthe hydrostatic testing requirement at ? 1910.157(f)(4). Lyondell contested the citationand moved for summary judgment on the ground that it was not responsible because, amongother reasons, the fire extinguisher was not provided for use by its own employees. Italso argued that the ? 1910.157(f)(4) charge could not be sustained because the Secretaryhad not offered \”new evidence of corrosion or mechanical injury,\” which isrequired to prove a violation of that subsection. The secretary argued in opposition tothe motion for summary judgment. Without entering any findings or conclusions in supportof his ruling, the judge granted summary judgment to Lyondell. Following the Secretary’spetition, Chairman Foulke directed the case for review.Normally, when a judge fails to state the reasons for hisdecision, the appropriate course for the Commission to take is to remand the case for anadequate statement of reasons. See, e.g., Stripe-A-Zone, Inc., 12 BNA OSHC 1192,1193, 1984-85 CCH OSHD ? 27,184, p. 35,090 (No. 79-2380, 1985). A remand also isappropriate when there exist material factual issues which require a hearing forresolution. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106S. Ct. 2505, 2510 (1986); Chen v. Metropolitan Ins. and Annuity Co., 907 F.2d 566,567-68, 570 (5th Cir. 1990); Todaro v. Bowman, 872 F.2d 43, 46, 50 (3d Cir. 1989).Summary judgment may be granted only where \”there is no genuine issue as to anymaterial fact and . . . the moving party is entitled to a judgment as a matter oflaw.\” Fed. R. Civ. P. 56 (c) . See also, e.g., LTV Steel Co., 13 BNA OSHC1090, 1986-87 CCH OSHD ? 27,826 (No. 86-449A, 1987) (Commission remanded to judge portionof case on which judge had issued partial summary judgment, and noted strong Federalpolicy against confusion, overlapping decisions, and wasted effort that often result frompiecemeal adjudication of cases). See generally, 10A C. Wright, A. Miller M. Kane, FederalPractice and Procedure, ? 2725 (1983).The Secretary has asserted that there are genuine issues ofmaterial fact in Arco as to whether that company controlled the hazards. Arco has arguedthat the Secretary failed to provide sufficient evidence of control to avoid summaryjudgment. It is appropriate for a judge to expressly resolve this controversy, stating thereasons upon which he relies. 5 U.S.C. ? 557(c). There also may be factual issues in Lyondell which require ahearing for resolution. The Third Circuit noted that Arco and Lyondell both weresubsidiaries of Atlantic Richfield Co. at the time of the fatality, and that they occupiedadjacent plants. Arco, 921 F.2d at 485 n.1. The facts, regarding the corporaterelationship between Arco and Lyondell may be relevant to the decision.Furthermore, as noted above, the parties dispute whether the Secretary has offered\”new evidence of corrosion or mechanical injury,\” regarding the ?1910.157(f)(4) item. It is appropriate for a judge to expressly resolve these matters,stating the reasons upon which he relies.Accordingly, the direction for Review in Lyondell isvacated, and both Arco and Lyondell are remanded to the Deputy ChiefAdministrative Law Judge for assignment and further proceedings consistent with thisdecision and with the Third Circuit’s decision in Arco.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: April 26, 1991″