“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 fiveitems in a citation issued to Paschen\/Morrison- Knudsen\/Kenny, a jointventure, engaged in a tunneling operation, and assessed a combinedpenalty of $3,300, the amount recommended by the Secretary. The judgefound that the employer’s violations of standards requiring testing forflammable gases and oxygen deficiency were \”serious\”, but not\”willful.\” The Secretary petitioned for review solely on whether thejudge should have characterized these two violations as \”willful.\” Review was directed solely on that issue. The Secretary has notsuggested that a higher penalty should be assessed if the violations arefound to be \”willful\”; on the contrary, he asks that the $3,300 penaltyassessed by the judge be affirmed. Furthermore, inasmuch as neitherparty has taken issue with the abatement requirements of the citationitems affirmed by the judge, abatement is not in controversy here. Inlight of these circumstances, we conclude that the issue of willfulnessdoes not warrant Commission review. _See_ _P & Z Company, Inc_., 82OSAHRC 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 longerprovident).Accordingly, the direction for review is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 24 1986———————————————————————— The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office By e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).”