<DOC>
[DOCID: f:wst94645d.wais]

 
DYNATEC MINING CORPORATION
January 19, 2001
WEST 94-645-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                    WASHINGTON,  D.C.   20006

                        January 19, 2001

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    :       Docket No. WEST 94-645-M
                                :
DYNATEC MINING CORPORATION      :

BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty,
        Commissioners

                             DECISION

BY THE COMMISSION:

     This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  801 et seq. (1994)
("Mine Act" or "Act").  Following an investigation into a fatal
accident that occurred at the Magma/Superior mine, inspectors
from the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued one citation and 13 orders,
pursuant to section 104(d)(1) of the Mine Act, 30 U.S.C. 
 814(d)(1), to Dynatec Mining Corporation ("Dynatec"), an
independent contractor at the mine.  Administrative Law Judge
Richard Manning affirmed the citation and seven of the orders,
and their associated special findings, and vacated the remaining
six orders.  20 FMSHRC 1058, 1091 (Sept. 1998) (ALJ).  The
Commission granted Dynatec's petition for discretionary review
challenging the judge's determinations.  For the reasons that
follow, we affirm in part and reverse in part.

                                I.

                Factual and Procedural Background

     During relevant times in 1992 and 1993, Magma Copper Company
("Magma") operated the Magma/Superior Mine, an underground copper
mine in Gila County, Arizona.  20 FMSHRC at 1058.  In December
1992, Magma awarded a contract to Dynatec to construct a 364-foot
raise, raise structure, and other facilities at the mine.  Id. at
1061.  The raise was a nearly vertical opening (approximately 80
degrees from horizontal) which was driven through surrounding
rock upward from the track level (the 4000 level) to connect with
higher levels (the 3763, 3700, and 3636 levels).  The raise
contained a wooden structure with two side-by-side compartments
separated by a dividing wall:  an ore pass and a manway.  Id. at
1059; Jt. Ex. A at 9.  The inside dimensions of the ore pass were
approximately six-by-eight feet, while the dimensions of the
manway were approximately six-by-six feet.  20 FMSHRC at 1059.
Ore-bearing rock (referred to as "muck") was dumped into the ore
pass at the intermediate levels and fell to a feeder at the 4000
level.  Id.; Jt. Ex. A at 11.  There the ore was moved to cars
and transferred by track to the mill.  20 FMSHRC at 1059.  The
manway served as a secondary escapeway for miners in the event of
an emergency and a means to gain access to various parts of the
raise.  Id.

     Magma designed the raise structure.[1]  Id. at 1061.  The
outside of the structure was constructed with ten-by-ten foot
timber, and the inside was also lined with timber.  Id. at 1060.
The manway was enclosed with wooden lagging, or 3-inch thick
horizontal boards, nailed outside the timber framework.  Id.; Jt.
Ex. A at 10; Tr. 533.  The ore pass was lined with 6-by-8 inch
armored cribs, using a "birdcage" design.  20 FMSHRC at 1060.
The raise structure was vertically framed at intervals of seven-
feet, four-inches, and each frame was referred to as a "set."
Id.  The succession of sets, one on top of the other, were
consecutively numbered from the bottom.  Id.; Jt. Ex. A at 10.
The sets were interconnected at joints where the timber was
notched with projections to fit together.  Jt. Ex. A at 10.

     As the raise structure was built, blocking was installed
against the surrounding rock at each segment where the vertical
and horizontal members of the framework were joined.  20 FMSHRC
at 1060; Jt. Ex. A at 12-13.  The blocking at each set prevented
the raise structure from moving outward horizontally and kept the
vertical posts in line.  20 FMSHRC at 1060.  A single bearing set
was located just above the feeder at the base of the first
set.[2]  Id. at 1061; Jt. Ex. A at 15.  The base of the first set
was hitched into surrounding rock with the entire set enclosed in
concrete.  Jt. Ex. A at 15.  As each set was drilled and blasted,
rock from the blast (referred to as "backfill") would fall
between the framework of the raise structure and the host rock.
20 FMSHRC at 1060.

     In June 1993, Dynatec completed construction of the raise
from the 4000 level to the 3763 level.  Id. at 1061.  In late
June, Magma began dumping muck from the 3763 level, while Dynatec
continued to build the raise structure above the 3763 level to
the 3636 level.  Id.  Between June 28 and July 11, boulders and
timber were sometimes hung-up in the feeder chute, and explosives
were used at the feeder to free the hang-ups.  Id.; Jt. Ex. A at
19.

     On July 29, 1993, a Magma loader operator dumped 30 to 50
loads of sandfill, a slurry consisting of cement and sand, into
the raise at the 3763 dump site.  20 FMSHRC at 1061; Jt. Ex. A at
20.  Muck was not pulled from the ore pass during that shift.  20
FMSHRC at 1061.  Starting on July 30, the ore pass was blasted to
clear hang-ups on a regular basis.  Id.  Magma discovered that
the sandfill had hardened near set 11 in the ore pass and that
the hardened sandfill was responsible for the continuing hang-ups
in the ore pass.  Id.

     On August 3, Magma made a concerted effort to blast a hang-
up in the ore pass caused by the hardened sandfill.  Id.  The ore
pass was blasted approximately four times on the B shift.  Id.
After hearing that the raise had been damaged, Dynatec Lead Miner
Douglas Massey inspected the raise and later called Dynatec
Project Superintendent Mark Spaulding at home to describe the
damage he observed.  Jt. Ex. A at 22.

     On August 4, Spaulding and another Dynatec miner inspected
the raise.  20 FMSHRC at 1061; Jt. Ex. A at 23.  They discovered
two pieces of armored cribbing missing between the ore pass and
the manway at set 20, muck in the manway at that location, and a
cracked divider at set 8.  20 FMSHRC at 1062.  In addition, they
determined that the raise structure had settled cumulatively
eight to ten inches below the 3763 level.  Id.; Stip. Doc. 113;
Jt. Ex. A at 23.  Magma's team leader for the raise project,
Matthew Kannegaard, was notified of the damage.  Jt. Ex. A. at
23.  Kannegaard and Spaulding then inspected the raise together.
Id.

     As a result of the damage, the raise was closed on August 4.
20 FMSHRC at 1062.  Magma provided Dynatec with a memorandum
listing nine items to repair.  Id.  These items included:
removing the sandfill from the ore pass; installing short
spreaders under all short manway wallplates; stabilizing the
broken divider at set 8; repairing broken ladders; securing
ladders to wallplates; and spraying shotcrete in sets 20 and 21.
Id.; Stip. Doc. 115.  In addition, the memorandum provided that
the raise was to be returned to service on the C shift on Monday,
August 8, 1993.  Stip. Doc. 115.

     On August 6, Dynatec Raise Superintendent Ronald Spry,
Spaulding, Kannegaard, and Magma Chief Engineer Tom Fudge went to
a restaurant to have lunch and bid farewell to Spry, who was
moving to another job.  Statement No. 42, at 31; Statement No.
44, at 33-34.[3]  Spaulding told Kannegaard that it was important
that Magma stop blasting and overloading the raise.  20 FMSHRC at
1062.  In addition, Spaulding suggested pouring a sand grout
backfill between the raise and the surrounding rock.  Id.
Spaulding understood that Magma would blast hang-ups in the raise
only as a last resort.  Id.

     From approximately August 4 through 9, Dynatec employees
repaired the raise in accordance with the memorandum. Jt. Ex. A
at 24-27.  Dynatec employees blasted the raise to remove the
hang-up, and completed most of the items set forth in the
memorandum.  20 FMSHRC at 1062.  On the B shift of August 9,
Magma resumed using the raise for production.  Id.

     On August 10,  Magma employees Jeff Christiansen and
Nicholas Truett, who were assigned to pull muck from the bottom
of the raise, began the B shift by attending a safety meeting
from approximately 3:00 until 5:00 p.m.  Jt. Ex. A at 28; Tr.
741.  Christiansen and Truett then went to the 4000 level of the
raise and began to pull muck.  Jt. Ex. A at 28.  Dynatec miner
Ernest Villaverde was working on the feeder while two other
Dynatec miners, Nathan Spry and Joe Castaneda, were inside the
raise completing repairs, including installing spreaders and
repairing ladders.  Id.; Statement No. 6, at 23; Statement No.
40, at 5.  A hang-up was reported at set 8.  20 FMSHRC at 1062.
Christiansen unsuccessfully tried to use an air lance to free the
hang-up.  Id.; Jt. Ex. A at 28.  Christiansen and Truett later
returned to the raise with explosives.  Jt. Ex. A at 28.  As they
were preparing to blast the raise, Villaverde reminded them that
Spry and Castaneda were working inside the raise.  Id.; Statement
No. 48, at 8.  Christiansen informed Spry and Castaneda about the
impending blast, and they came down from the raise.  Jt. Ex. A at
28; Statement No. 5, at 3-4.  After the blast, Spry and Castaneda
assisted Villaverde at the feeder and did not reenter the raise.
Jt. Ex. A at 29; Statement No. 5, at 5-6.  The ore pass hung up
again.  20 FMSHRC at 1062.  Before it was blasted a second time,
the Dynatec miners completed their work at the feeder, and went
to the 3600 level, as directed by Bill Wilson, the Dynatec raise
superintendent who replaced Spry.  Id.; Jt. Ex. A at 29;
Statement No. 50, at 5-6, 20-21.

     Magma Team Leader Alfred Edwards and Group Leader John
Dalton separately traveled to the 4000 level to assist
Christiansen and Truett with the hang-up.  Jt. Ex. A at 1, 30-31.
The four miners entered the raise from the 4000 level to set up
the blast, and the raise failed at around 9:45 p.m.  20 FMSHRC at
1062.  It appears that the dividing wall separating the ore pass
and the manway failed, and muck moved from the ore pass into the
manway and buried the four Magma employees, fatally injuring
them.  Id. at 1062-63.

     Following an investigation into the accident, MSHA issued to
Dynatec a section 104(d)(1) citation and an order alleging
violations of 30 C.F.R.  57.3360; an order alleging a violation
of 30 C.F.R.  57.11001; six orders alleging violations of 30
C.F.R.  57.3401; and five orders alleging violations of 30
C.F.R.  57.18002(a).  Stip. Docs. 1-14.  Magma also was cited
for multiple violations of explosives and training standards in
addition to receiving one 104(d)(1) citation and three orders
alleging violations of section 57.3360; one 104(d)(1) citation
and six orders alleging violations of section 57.3410; and four
orders alleging a violation of section 57.18002(a).  20 FMSHRC 
at 1059; Jt. Ex. A at 53-113; Tr. 65.  The Secretary of Labor
proposed civil penalties totaling $700,000 against Dynatec. 20
FMSHRC at 1059.

     In 1996, an indirect subsidiary of Broken Hill Proprietary
Company Limited merged with Magma Copper.  Id.  As a result of
this merger, Magma became BHP Copper.  Id. at 1058.  The
enforcement actions against Magma were settled after the merger.
Id. at 1059.  As part of the settlement agreement, BHP Copper
agreed to pay civil penalties of $800,000; to plead guilty to two
misdemeanor counts under section 110(d) of the Mine Act, 30
U.S.C.  820(d); and to pay associated criminal penalties.  Id.
BHP Copper also agreed to pay certain sums to the State of
Arizona.  Id.  In July 1998, a United States Magistrate Judge of
the U.S. District Court for the District of Arizona approved the
settlement of the criminal matters, and Judge Manning approved
the settlement of the civil proceedings.  Id.

     Dynatec challenged the citation and orders, and the matter
proceeded to hearing before Judge Manning.  The judge affirmed
the citation and orders alleging violations of section 57.3360,
57.11001 and 57.3401, and vacated one order alleging a violation
of section 57.3360 and the five orders alleging violations of
section 57.18002(a).  20 FMSHRC at 1091.  In addition, the judge
affirmed the significant and substantial ("S&S") and
unwarrantable failure findings associated with the violations of
sections 57.3360, 57.11001, and 57.3401.  Id. at 1077, 1080,
1085.  The judge assessed civil penalties totaling $90,000
against Dynatec.  Id. at 1090-91.

                               II.

                           Disposition

     A.   Alleged violation of 30 C.F.R.  57.3360:[4]  Citation
          No. 4410466

          1.   Violation

     The judge affirmed the citation alleging a violation of
section 57.3360, reading the second and third sentences of
section 57.3360 together to require that damaged, loosened, or
dislodged timber of the raise structure must be replaced so that
the ground support system (that is, the raise structure itself)
does not present a hazard to miners.  20 FMSHRC at 1075-76.
Noting that the citation related to Dynatec's maintenance
responsibilities after the raise structure had already settled,
the judge found that the raise structure was on the verge of
failure and that any normal event such as loading the raise with
muck had the potential to cause a massive failure of the
structure.  Id. at 1076.  He concluded that it was foreseeable
that the raise would become loaded with muck within a relatively
short period of time and Dynatec knew that loading would put the
structure at risk for failure.  Id.  The judge determined that
the Secretary established a violation because Dynatec failed to
make repairs that addressed the structural problems in the raise
structure.  Id.

     Dynatec argues that the Secretary failed to prove that a
"hazard to persons" existed in the raise structure in violation
of section 57.3360.  PDR at 23-25; D. Reply Br. at 14-18.
Preliminarily, it contends that the judge erred in considering
the third sentence of the standard because the Secretary never
argued that Dynatec violated it.  PDR at 23-24.  It next asserts
that the raise was safe to use as a transfer facility, as
evidenced by the lack of incident on August 9.  Id. at 24.  It
maintains that its initial repairs eliminated any hazards to
persons, in conformance with section 57.3360, and that Magma
created a hazard to persons through its misuse of the raise.  D.
Reply Br. at 9 n.14.  Dynatec also asserts that the Secretary did
not prove a "hazard to persons" existed at the time that
Dynatec's employees were withdrawn on August 10.  PDR at 24.  It
contends that the Secretary merely proved that a hang-up of three
to four sets might present a danger to miners, but that the
Secretary failed to prove that such a hang-up existed at the time
that Dynatec employees were withdrawn from the raise on August
10.  D. Reply Br. at 15-16.  Dynatec further contends that it was
not foreseeable that the raise would be loaded and that Magma
would act contrary to its assurances that the raise would not be
misused.  PDR at 11; D. Reply Br. at 11 & n.22.

     The Secretary responds that the judge properly found that
Dynatec violated section 57.3360.  S. Br. at 11.  She asserts
that evidence is undisputed that a "hazard to persons" existed
after the raise settled.  Id. at 11-12.  The Secretary submits
that Dynatec's repairs did not address the structural problems
caused by settlement, and that the raise structure was on the
verge of failure.  Id. at 12.  She suggests that the judge
correctly rejected Dynatec's claim that there was no "hazard to
persons" because the raise structure was safe to use to transfer
ore.  Id. at 12-13.  The Secretary submits that Dynatec's claim
is belied by expert testimony and evidence it was foreseeable
that the structure would become loaded.  Id. at 14-15.

     We affirm the judge's conclusion that Dynatec's failure to
repair or replace ground support timbers so that the raise
structure would not create a hazard to persons working there
violated section 57.3360.  In particular, substantial evidence[5]
supports the judge's determination that after the raise settled,
the raise structure presented a hazard to persons in that an
event such as loading the raise had the potential to cause a
massive failure within the structure.[6]  20 FMSHRC at 1076.  The
judge credited the testimony of James Van Liere, a consulting
engineer retained by the Secretary, who testified that after the
raise was put back into use, it could fail because use would
apply load, or outward pressure, to the ore pass walls.  20
FMSHRC at 1066, 1068, 1076; Tr. 321, 357.   Van Liere stated that
it was unknown how many sets of blocking (wooden wedges) were
still in contact with the center posts, although they were
probably reasonably intact.  Tr. 269.  He noted that when the ore
pass was empty, there may have been no danger, even if blocking
were missing, because there was no load against the ore pass
walls.  Tr. 321, 323-24.  Van Liere testified, however, that when
the raise was returned to use, a precipitating event such as
loading or blasting could cause cribbing to come free of its
restraint in the bird cage, resulting in failure of the raise
structure.  Tr. 318, 356-57.  He explained that the failure that
occurred on August 10 could have been precipitated "simply by
having a loose set of blocking fall away."  Tr. 269-70.

     We reject Dynatec's assertion that the judge abused his
discretion by crediting Van Liere's testimony.  PDR at 13-16; D.
Reply Br. at 15 n.31.  A judge's credibility determinations are
entitled to great weight and may not be overturned lightly.
Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept.
1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981).
Testimony by Dynatec's own witnesses supports Van Liere's
testimony that loading the raise would diminish safety.
Dynatec's consulting engineer, Peter Stork, testified that, as
repaired, it was safe for a miner to use the manway on August 10
only if no more than 30 tons of muck accumulated in the ore pass.
Tr. 889, 895; R. Ex. 9.  He explained that "thirty tons is based
on a small accumulation of muck within the concreted set at the
bottom of the raise."  Tr. 889.  Stork testified that safety was
progressively diminished as the accumulated load exceeded 30
tons.  Tr. 889-90; R. Ex. 9.  In addition, Stork's report stated
that the repaired raise was susceptible to damage under hung load
conditions.  See Jt. Ex. D. at 19.  John Folinsbee, a consulting
mining engineer retained by Dynatec, also testified the raise was
compromised after it had settled and that it could not be used as
it was intended (that is, to store material) without major
repairs.  Tr. 943.  Folinsbee stated that if the raise were put
into service, another hang-up would increase the possibility of
divider wall breach and further settlement.  Tr. 991.  Thus, we
do not find the extraordinary circumstances requiring that we
overturn the judge's credibility determination.

     Furthermore, substantial evidence supports the judge's
determination that it was foreseeable that the raise would be
loaded with muck in a relatively short period of time, and that
it was unreasonable for Dynatec to believe that the raise
structure would only be used to transfer ore.  20 FMSHRC at 1069,
1076.  The record reveals that on August 9 and 10, a high volume
of ore was being dumped into the raise structure as soon as it
was released for production.  On August 9, 12 cars of ore were
loaded from the raise during the remainder of the B shift, and 81
cars were pulled during the C shift.  Jt. Ex. A at 26-27.  A
Dynatec miner who helped repair the raise stated that while
Dynatec was completing its repairs, Magma was mining and stacking
muck in muck bays at all three levels of the raise, waiting for
the ore pass to be released for production.  Statement No. 29, at
13-15, 31, 36-37.  He testified further that when the raise was
released on August 9, there were two loaders with two-and-half
yard buckets dumping at all three levels.  Id. at 37; see also
Statement No. 33, at 6-7; Statement No. 12, at 44-45
(establishing that ore was being dumped at all three levels); see
also Stip. Doc. 62, at 4 (Magma accident report) (stating that,
"with the exception of the time periods during which . . .
blasting [occurred,] muck from several stopes was being dumped
into the 865 Raise" on August 10).  It further appears that the
potential to dump ore was greater than it had been previously
because the highest level in the raise, the 3636 level, was made
available for dumping for the first time on approximately August
9 or 10.  See Statement No. 17, at 19; Jt. Ex. B at II-3, II-4.

     It appears that dumping ore into the ore pass was not
synchronized with muck being pulled from the bottom in order to
avoid muck accumulation.  One of two loader operators at the 3763
dump site stated that, before he was told to shut down on the
night of August 10, he had dumped 40 to 45 loads, and that he
would get a load and dump it about every two minutes.  Statement
No. 33, at 4-5, 8.  Folinsbee testified that a two-and-a-half
yard scoop dumping a load every two minutes would fill up the ore
pass from the bottom to approximately sets 8 to 10 in two-and-a-
half hours.  Tr. 940.  A Dynatec miner who helped repair the
raise testified that, while two loaders each were dumping at all
three levels, there were only two miners at the bottom to load
the muck onto the track.  Statement No. 29, at 13-15, 36-37.  He
stated that the two miners at the bottom had to walk 300 to 400
yards to dump the material, while the loaders on the "37 level"
had to travel only 30 feet from the muck bay to dump.  Id. at 48-
49.  He stated that by the time the muckers at the bottom got
back from dumping their load, muck would be piling up in the ore
pass.  Id. at 48-49.  In addition, on August 10, the miners
assigned to pull muck from the bottom of the raise participated
in a team meeting for approximately two hours at the beginning of
the shift and did not load ore into cars during that time.  Jt.
Ex. A at 28; Tr. 741.  Furthermore, miners at the bottom
sometimes had difficulty ascertaining whether the ore pass was
empty or hung-up, which would appear to further hinder
synchronization between dumping into the ore pass and pulling
muck from the bottom.  See Statement No. 27, at 11; Statement No.
48, at 4; Stip. Doc. 102.  Thus, substantial evidence supports
the judge's determination that if the miners pulling muck from
the bottom of the ore pass could not keep up with the ore being
dumped, it would not take long for the ore pass to become full or
nearly full again.  20 FMSHRC at 1069.

     Moreover, we disagree with Dynatec that its repairs to the
raise structure eliminated any "hazards to persons," and that
only subsequent misuse by Magma created a new hazard.  PDR at 24;
D. Reply Br. at 9 n.14.  As the judge found (20 FMSHRC at 1067),
evidence was undisputed that the repairs made by Dynatec did not
address the settlement of the raise.  Kannegaard, who drafted the
repair memorandum with Fudge, acknowledged that the list of
repair items did not address the raise's settlement.  Statement
No. 22, at 67, 79; see also Tr. 665; Statement No. 37, at 47-49;
Statement No. 38, at 152.  John  Marrington, Dynatec's vice
president and general manager, also acknowledged that Dynatec
turned over the raise "before all the repairs were effected that
were necessary to make a stable structure were done."  Statement
No. 23, at 53, 155-56.

     Rather, the settlement of the raise was going to be
addressed by the pouring of sand grout backfill around the raise
structure during subsequent weekends, after the raise had already
been returned to production.  20 FMSHRC at 1069 n.4, 1076.
Kannegaard stated that during the August 6 lunch, no formal plan
had been decided upon to address the settlement problem, and that
discussions were ongoing.  Statement No. 22, at 67.  He explained
that he had further discussions with Fudge about pouring sand
grout backfill at various locations behind the raise structure
during weekends after the raise had been returned to production.
Id. at 102-04.  Other Dynatec witnesses testified that the
settlement of the raise would be addressed by pouring sand grout
backfill after the raise had been returned to production.
Statement No. 36, at 19, 25-26; Statement No. 37, at 47-49;
Statement No. 38, at 139, 152; see also Statement No. 26, at 73;
Statement No. 49, at 30-31, 77.  Nonetheless, Dynatec's plans to
address the raise's settlement after it had been returned to
production do not negate a finding of violation in view of the
standard's requirement that structural timbers creating a hazard
to persons shall be repaired or replaced "prior to any work or
travel in the affected area."  30 C.F.R.  57.3360 (emphasis
added).

     Dynatec acknowledges that, at most, the repairs it made were
sufficient to return the ore pass to production only if it were
used to transfer ore.  D. Reply Br. at 9-10.  Dynatec's engineer
Stork testified that, although the repairs were sufficient to
allow the raise to be used to transfer material, the repairs did
not address the inability of the raise to resist vertical loads
from accumulated muck, particularly under a hang-up condition,
without sustaining permanent settlement.  Tr. 872-73, 893.  John
Marrington, Dynatec's Vice President, agreed that once the raise
was turned over to Magma after the repairs had been made, another
hang-up in the ore pass could have resulted in failure of the
dividing wall.  Statement No. 23, at 53, 155-56.  Given evidence
that loading was foreseeable, the repairs made by Dynatec did not
eliminate a hazard to persons within the meaning of the standard.

     In addition, contrary to Dynatec's assertion (PDR at 24),
the fact that no incident occurred on August 9 does not establish
that the raise structure did not present a "hazard to persons."
Even in the context of considering whether a hazard contributed
to by a violation is reasonably likely to result in an injury
(for purposes of deciding whether a violation is significant and
substantial, see n.7, infra), the Commission does not require the
Secretary to prove the actual occurrence of an accident or
injury.  Arch of Kentucky, 20 FMSHRC 1321, 1330 (Dec. 1998);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 678 (Apr. 1987).
Rather, in view of the limited repairs made by Dynatec, evidence
regarding the potential for loading and hang-ups amounted to
substantial evidence supporting the judge's determination that a
"hazard to persons" existed in the raise structure.

**FOOTNOTES**

     [1]:    During   the  bid  process,  Dynatec  had  submitted
proposals for alternate  methods of building the raise structure,
which Magma rejected.  20 FMSHRC at 1061.

     [2]:  A bearing set is  designed  to  transfer the weight of
the  raise  structure  above the bearing set to  the  surrounding
rock.  20 FMSHRC at 1061.

     [3]:   The  parties  stipulated   to  the  admissibility  of
deposition and interview transcripts for  31  individuals.  These
depositions and interviews are listed in Stipulation  No.  3, and
are referred to in this decision as "Statement No.," followed  by
the number they are given in that list.

     [4]:    Section  57.3360,  entitled  "Ground  support  use,"
provides:

               Ground   support  shall  be  used  where
          ground conditions,  or  mining  experience in
          similar   ground  conditions  in  the   mine,
          indicate that  it  is necessary.  When ground
          support  is  necessary,  the  support  system
          shall be designed,  installed, and maintained
          to control the ground in places where persons
          work or travel in performing  their  assigned
          tasks.    Damaged,   loosened,  or  dislodged
          timber  use[d]  for  ground   support   which
          creates a hazard to persons shall be repaired
          or  replaced  prior  to any work or travel in
          the affected area.

     [5]:  When reviewing an administrative law judge's factual  
determinations,  the  Commission  is bound by the  terms of the 
Mine Act to apply the substantial evidence test.  30 U.S.C.
 823(d)(2)(A)(ii)(I). "Substantial evidence" means "`such 
relevant evidence as a reasonable  mind might accept as adequate 
to support [the judge's] conclusion.'" Rochester & Pittsburgh  
Coal Co., 11 FMSHRC 2159,  2163 (Nov. 1989) (quoting Consolidated
Edison  Co. v. NLRB, 305 U.S.  197,  229
(1938)).

     [6]:   We reject Dynatec's preliminary  argument that, 
because the Secretary never argued that Dynatec violated the third
sentence of section  57.3360,  the  judge  erred  in considering  
that  portion of  the  standard. PDR at 23-24.  The subject  
citation provided Dynatec with adequate notice that it included
allegations  that Dynatec allegedly  violated the  third  sentence.
See Stip. Doc. 1 (Citation  No. 4410466) (providing  in  part,
"Management  failed  to  properly repair or replace the cribbing 
and timber in the raise which was progressively damaged, loosened,
or dislodged as  a result of poor mining practices.").  Further,  
Dynatec cannot claim lack  of notice of the judge's consideration
in view of its argument before the judge that it did not violate 
the third sentence. D. Post-Hr'g Br. at 26-30.

     Similarly, we reject Dynatec's argument that it did not
violate the standard on August 10 because no "hazard to persons"
existed until after its miners left the raise.  This argument
finds no support in the record.  Dynatec maintains that the
hazardous condition developed after its withdrawal from the
raise, when Magma continued to dump muck on top of the hang-up
and continued to use explosives inside the raise.  D. Reply Br.
at 14 & n.29.  In fact, a hazardous condition existed while
Dynatec miners were in the raise because there existed a
foreseeable potential for loading, and, in fact, a hang-up
actually developed. Statement No. 6, at 24-25; Statement No. 40,
at 5; Statement No. 48, at 8.

     In any event, even if we were to assume that Dynatec
employees left the raise before a hazardous condition developed,
Magma employees were still in the raise and exposed to a
hazardous condition resulting from Dynatec's failure to
adequately repair or replace ground support timbers.  If
Dynatec's violative actions in failing to repair or replace
timbers resulted in a "hazard to persons," Dynatec is liable for
the violation regardless of which operator employed the miners
placed at risk.  As the Commission has previously recognized,
"Employer-employee is not the test.  The duty of an operator,
whether owner or contractor, extends to all miners."  Republic
Steel Corp., 1 FMSHRC 5, 11 (Apr. 1979).  Furthermore, Dynatec
cannot avoid liability for the violation by claiming that Magma's
actions in "misusing" the raise created the "hazard to persons."
While Magma's actions may have contributed to the "hazard to
persons" in the raise, Dynatec remained responsible for its own
actions in failing to repair or replace ground support timbers
that present a hazard to persons before miners worked or traveled
in the area.  In sum, we conclude that substantial evidence
supports the judge's determination that Dynatec violated section
57.3360 by failing to repair or replace ground support timbers so
that the raise structure did not create a hazard to persons
working in the structure.  20 FMSHRC at 1075-76.

          2.   S&S

     The judge concluded that Dynatec's violation of section
57.3360 was S&S.[7]  20 FMSHRC at 1077.  He determined that the
violation contributed to a discrete safety hazard and that,
without rehabilitating the raise structure, it was reasonably
likely that a substantial failure of the structure would occur,
resulting in an injury of a reasonably serious nature.  Id.

     Dynatec argues that the judge erred in concluding that its
violation of section 57.3360 was S&S.  PDR at 24-25.  In support
of its argument, Dynatec states only that "the Secretary did not
prove that a `hazard to persons' existed at the time that
Dynatec's employees were
withdrawn . . . on August 10, 1993.  Thus, the Secretary did not
establish a violation of [section] 57.3360, let alone a
significant and substantial one."  Id.  The Secretary responds
that the judge's determination is supported by substantial
evidence.  S. Br. at 28-30.

     We have concluded that substantial evidence supports the
judge's determination that the Secretary proved that a "hazard to
persons" existed in violation of section 57.3360.  Moreover,
substantial evidence supports the judge's determination that
there was a reasonable likelihood that the hazard contributed to
by Dynatec's violation of section 57.3360 would result in a
reasonably serious injury.  20 FMSHRC at 1077.  The judge's
conclusion is supported by Van Liere's testimony that, once the
raise was returned to production, a precipitating event such as
loading could cause failure of the raise structure. Tr. 356-57.
Van Liere's testimony was supported by Stork's testimony that the
safety of the raise would be diminished by the accumulation of
muck exceeding 30 tons, and that the raise was not repaired in
order to be used to hold material, particularly when a hang-up
existed. Tr. 818-19, 867-68, 821, 823.  Finally, MSHA Inspector
Tyrone Goodspeed testified that he believed that the violation of
section 57.3360 was S&S because the inadequate maintenance of the
raise structure could result in a reasonably serious injury, such
as death.  Tr. 440, 449.  In fact, on August 10, the raise
structure, as repaired, failed, resulting in the deaths of four
miners.  Jt. Ex. A at 2, 30-33.  Accordingly, we affirm the
judge's S&S determination.

          3.   Unwarrantable Failure

     The judge held that Dynatec's violation of section 57.3360
resulted from its unwarrantable failure.  20 FMSHRC at 1078.  He
determined that Dynatec did not address the structural and
settlement problems in the raise structure, and that Dynatec knew
that the raise structure presented a serious safety hazard to
miners if the ore pass was loaded, or if blasting occurred in the
raise.  Id.  In addition, he reasoned that Dynatec failed to
adequately warn Magma of the severity of the hazard.  Id.  Thus,
the judge concluded that Dynatec's failure to take appropriate
actions to ensure that the raise was rehabilitated before it was
returned to production demonstrated a serious lack of reasonable
care.  Id.

**FOOTNOTES**

     [7]:  A violation is S&S if,  based  on the particular facts
surrounding  the violation, there exists a reasonable  likelihood
that the hazard  contributed  to  will  result  in  an  injury or
illness  of a reasonably serious nature.  See Cement Div.,  Nat'l
Gypsum Co.,  3 FMSHRC 822, 825 (Apr. 1981).  In Mathies Coal Co.,
6 FMSHRC 1 (Jan. 1984), the Commission further explained:

               In  order  to establish that a violation
          of a mandatory safety standard is significant
          and substantial under  National  Gypsum,  the
          Secretary  of  Labor  must  prove:   (1)  the
          underlying  violation  of  a mandatory safety
          standard; (2) a discrete safety hazard - that
          is,   a   measure  of  danger  to  safety   -
          contributed   to  by  the  violation;  (3)  a
          reasonable   likelihood   that   the   hazard
          contributed to  will result in an injury; and
          (4) a reasonable  likelihood  that the injury
          in  question will be of a reasonably  serious
          nature.

Id. at 3-4 (footnote  omitted);  accord  Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995);  Austin  Power, Inc. v.
Secretary  of Labor, 861 F.2d 99, 103 (5th Cir. 1988)  (approving
Mathies criteria).

     Dynatec maintains that the judge erred in concluding that
its violation of section 57.3360 was caused by its unwarrantable
failure.  It explains that it merely performed the limited
repairs that Magma had decided were necessary, and that it only
undertook such repairs after it received assurances that Magma
would not misuse the raise and would later allow Dynatec to pour
in sandfill during subsequent weekends.  PDR at 25-26.  The
Secretary responds that the judge's determination is supported by
substantial evidence.  S. Br. at 31-36.

     The unwarrantable failure terminology is taken from section
104(d) of the Act, 30 U.S.C.  814(d), and refers to more serious
conduct by an operator in connection with a violation.  In Emery
Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission
determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence.  Id. at 2001.
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care."  Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991);
see also Buck Creek, 52 F.3d at 136 (approving Commission's
unwarrantable failure test).

     We conclude that substantial evidence supports the judge's
determination that Dynatec's violation of section 57.3360 was
caused by its unwarrantable failure.  As the judge found, Dynatec
managers knew that the repairs were temporary and did not address
the fundamental problems of the raise.  20 FMSHRC at 1069; Tr.
665; Statement No. 37, at 47-49; Statement No. 38, at 152;
Statement No. 42, at 30; Statement No. 43, at 64.  Dynatec
conceded that the settlement problem was to be addressed during
weekends after the raise had been returned to production.
Statement No. 36, at 19, 25-26; Statement No. 37, at 47-49;
Statement No. 38, at 139.  As Marrington stated, installation of
the backfill, which would have made the raise safe, was to occur
after the raise had been returned to production.  Statement No.
23, at 155-56.

     Moreover, substantial evidence supports the judge's
determination that Dynatec knew that the raise structure, as
repaired, posed a serious safety hazard to miners if the ore pass
were loaded.  20 FMSHRC at 1070, 1078.  In explaining that the
raise should not have been loaded after Dynatec repaired it, Spry
testified that if miners "dumped two cars [of muck] in it, they
[needed to] pull two cars out [of] the bottom."  Statement No.
43, at 129.  He agreed that any other practice would have been
unsafe.  Id.  Further, as discussed above (slip op. at 7-8),
substantial evidence supports the judge's determination that it
was foreseeable that the raise would become loaded, and it was
unreasonable for Dynatec to conclude that no loading would occur.

     In addition, substantial evidence supports the judge's
determination that Dynatec managers knew that the raise
structure, as repaired, posed a serious safety hazard to miners
if the ore pass was blasted.  20 FMSHRC at 1070, 1078.  Spaulding
and Spry acknowledged that the raise could "completely fall
apart" or fail if blasted.  Statement No. 37, at 50; Statement
No. 39, at 51-52, 61; Statement No. 42, at 32.

     Given this knowledge, before undertaking the repairs,
Dynatec should have sought assurances from Magma that there would
be no blasting.  Instead, on August 6, after Dynatec had already
started repairs, Dynatec only warned against blasting as part of
idle conversation during Spry's good-bye luncheon.[8]  Statement
No. 43, at 130-31.  Dynatec could not reasonably have concluded
that there would be no blasting.  Spaulding testified that during
the August 6 lunch, he had been informed that Magma would blast
in the raise, albeit as a last resort.  Tr. 729; Statement No.
39, at 40-41, 85-86; Statement No. 36, at 26; Stip. Doc. 112
(entry by Spaulding dated 8-6-94); Statement No. 38, at 142.
Spaulding also stated that Kannegaard had informed him that he
had met with team leaders and had circulated a memorandum stating
that the raise could be blasted only as a last resort until it
had been backfilled with concrete.  Tr. 729; Statement No. 36, at
26; Stip. Doc. 112 (entry by Spaulding dated 8-6-94); Statement
No. 38, at 142; Statement No. 39, at 40-41, 85-86.  Consistent
with Spaulding's testimony, Kannegaard stated that he had spoken
with Dalton, who was responsible for the Magma crews working in
the raise, and told him that blasting in the raise should be a
last resort.  Statement No. 22, at 94, 107.  Thus, as the judge
found, Spaulding understood that Dynatec would blast as a last
resort.  20 FMSHRC at 1062.

     In light of its knowledge that the raise would pose a
serious hazard to miners if loading or blasting occurred until
after permanent repairs were made, substantial evidence supports
the judge's determination that Dynatec exhibited a serious lack
of reasonable care by agreeing to a plan whereby it would
immediately perform limited repairs and make permanent repairs
after the raise had been returned to production.  20 FMSHRC at
1069-70, 1078.  As the judge noted, Dynatec did not control the
raise.  Id. at 1069.  Nonetheless, Dynatec had control over the
decision of whether to undertake the limited repairs.  It was
unreasonable for Dynatec to rely upon assurances that it would be
able to rehabilitate the raise by pouring sand grout backfill
during subsequent weekends.  Instead, Dynatec was required to
adequately repair the raise structure before miners returned to
work.  Dynatec knew or should have known that making the
temporary repairs would likely result in miners' exposure to
serious risk of harm, and it exhibited aggravated conduct in
making such repairs.[9]  Accordingly, we affirm the judge's
determination that Dynatec's violation of section 57.3360 was
caused by its unwarrantable failure.

          4.   Civil Penalty

     Dynatec argues that the penalty assessed for its violation
of section 57.3360 is excessive.  PDR at 38-39.  It asserts that
the penalty criteria reflect congressional intent to treat small,
generally compliant operators differently than large, non-
compliant ones, and that the fine assessed against Dynatec is
only $10,000 less that the one for Magma for the same violation.
Id.

     We conclude that substantial evidence supports the judge's
penalty of $40,000 for Dynatec's violation of section 57.3360.
The judge made findings with respect to all six penalty criteria,
and specifically relied in part on Dynatec's favorable history of
previous violations, and on the fact that it was a mid-sized
independent contractor.  20 FMSHRC at 1089.  Moreover, we decline
Dynatec's invitation to compare its penalty with the penalty paid
by Magma as part of a settlement agreement.  See Northern
California Power Agency v. FERC, 37 F.3d 1517, 1522 (D.C. Cir.
1994) ("It would be nonsensical for an agency to adjust every
judgment it rendered in order to conform to the results of
related . . . settlements.").  The assessment of a civil penalty
is a matter of discretion involving the application of the
statutory criteria to the facts of each particular case.[10]  
See Pyro Mining Co., 6 FMSHRC 2089, 2091-92 (Sept. 1984).

     Finally, because we would affirm the judge's S&S and
unwarrantable failure findings, we conclude that the judge's
findings that the violation was serious and caused by high
negligence are supported by substantial evidence.  See Quinland
Coals, Inc., 9 FMSHRC 1614, 1622 & n.11 (Sept. 1987) (noting that
the penalty criteria of gravity and negligence are based
frequently upon the same or similar factual circumstances as
findings of S&S and unwarrantable failure, respectively).  The
judge appropriately considered that Magma had decided which
repairs were necessary, and that Dynatec had received assurances
that Magma would not misuse the raise and would later allow
Dynatec to pour sandfill, in his reduction of the proposed
penalty of $50,000 to the assessed penalty of $40,000.[11] 20
FMSHRC at 1090.

     B.   Alleged violation of 30 C.F.R.  57.11001:[12]  Order
          No. 4410468

          1.   Violation

     The judge determined that a safe means of access was
provided and maintained to working places within the manway
during the time that Dynatec performed repairs, but that safe
access was not provided after the raise was returned to
production on August 9.  20 FMSHRC at 1079-80.  Based on that
finding, he reduced the scope of the order alleging a violation
of section 57.11001 from August 4 through August 10, to August 9
and 10.  Id.  The judge concluded that Dynatec violated the
standard on August 9 and 10 by failing to remove its employees
from the manway and by failing to provide sufficient warning to
Magma that the manway did not provide a safe means of access.
Id. at 1080.

     Dynatec argues the judge erred in finding a violation of
section 57.11001 because the Secretary failed to prove that a
hazardous condition existed when Dynatec employees gained access
to working places on August 9 and 10.  PDR at 20-22.   As to
August 9, it contends that there was no violation because there
was no evidence that Dynatec worked inside the raise after it was
returned to service on the B or C shifts, and that there were no
incidents during those shifts.  Id. at 20; D. Reply Br. at 9-10.
It maintains that the Secretary failed to prove a violation on
August 10 because there is no evidence that the raise was loaded
when it gained access "to" working places on that date.  PDR at
20; D. Reply Br. at 10, 16-17.  It maintains that even if the
standard is read to require safe access "from" working places, in
addition to "to" working places, the Secretary did not prove a
violation because the Secretary did not prove that the raise was
full enough to pose a hazard at the time of Dynatec's withdrawal.
PDR at 21; D. Reply Br. at 10 n.18, 16-17.  Dynatec also argues
that the judge erred in considering Dynatec's failure to warn
Magma because section 57.11001 does not impose a duty to notify.
PDR at 33.  The Secretary responds that substantial evidence
supports the judge's finding that Dynatec violated section
57.11001 because the raise structure was unsafe, and there is no
dispute that, on August 9 and 10, Dynatec permitted employees to
gain access to working places using the raise structure.  S. Br.
at 17.

     To prove a violation of section 57.11001, the Secretary must
establish that a safe means of access to working places was not
provided to and maintained for miners gaining access.  The
Secretary, however, need not prove that safety is diminished to
the degree that an accident or injury actually will occur while
the miners are using the route.  Cf. Arch of Kentucky, 20 FMSHRC
at 1330 (holding that the Secretary does not have to show that a
violation caused an accident in order to prove that the violation
is S&S.).  In considering whether the Secretary proved a
violation, the appropriate focus is on the standard's requirement
that safe access be "provided and maintained," rather than on
whether access is "to" or "from" working places.  See Homestake
Mining Co., 4 FMSHRC 146, 151 (Feb. 1982) (considering means of
access for reaching and leaving workplace in identically worded
predecessor to section 57.11001); Hanna Mining Co., 3 FMSHRC
2045, 2046-47 (Sept. 1981) (considering means of access for
reaching and leaving workplace in identically worded standard).
Thus, we find irrelevant Dynatec's arguments regarding the
distinction between access "to" and "from" working places, and
the conditions that existed when Dynatec's miners initially
arrived in the manway, or eventually departed.  PDR at 20-21; D.
Reply Br. at 10, 16-17.  In addition, we reject Dynatec's
assertion that the judge erred in finding a violation on August 9
because no accident occurred on that date.  PDR at 20-22.

     We conclude that substantial evidence supports the judge's
determination that Dynatec violated section 57.11001.  As
discussed above (slip op. at 7-8), on August 10, a high volume of
muck was being dumped into the ore pass, and it was foreseeable
that the ore pass would become loaded, potentially resulting in
the failure of the divider wall between the ore pass and the
manway.  As acknowledged by Dynatec witnesses, the raise
structure had not been repaired to withstand loading, but was
safe only to transfer ore.  Tr. 889-90; R. Ex. 9; Jt. Ex. D at
19; Statement No. 43, at 129.  During the B shift, the ore pass
was loaded, and became hung up.  Statement No. 6, at 23;
Statement No. 40, at 5.  A hang-up within the ore pass applied
load to the ore pass walls and could have resulted in failure of
the divider wall between the ore pass and manway.  20 FMSHRC at
1066; Tr. 321, 357, 991; Jt. Ex. D at 19.  Thus, on August 10, a
safe means of access was not provided and maintained in the
manway.

     It is undisputed that Dynatec permitted its employees to
gain access to the manway on August 10 while the manway was
unsafe.  Dynatec employees were in the manway on August 10 when
the ore pass was being loaded, and while it was hung up.[13]
Statement No. 50, at 5; Statement No. 36, at 15-16; Statement No.
6, at 24-26; Statement No. 40, at 5.  Dynatec employees were
withdrawn from the ore pass only when the hang-up was going to be
blasted.  Statement No. 6, at 24-25; Statement No. 40, at 5;
Statement No. 48, at 8.  Accordingly, we affirm the judge's
determination that Dynatec violated section 57.11001.[14]

          2.   S&S

     The judge determined that Dynatec's violation of section
57.11001 was S&S.  20 FMSHRC at 1080.  He reasoned that once the
raise was returned to production as repaired, it was reasonably
likely that the raise would fail thereby killing or seriously
injuring miners in the manway.  Id.

     Dynatec argues that the judge erred in concluding that its
violation of section 57.11001 was S&S because the Secretary
failed to prove the third Mathies factor.  PDR at 22.  It submits
that Van Liere testified that there was only a possibility that
the raise might fail, while Stork testified that it was very
unlikely that the raise would fail under the conditions that
probably existed at the time of Dynatec's withdrawal.  Id.

     Substantial evidence supports the judge's determination that
the repaired raise structure was reasonably likely to fail,
resulting in injury to miners who gained access to the manway
during production on August 10.  20 FMSHRC at 1080.  As discussed
above (slip op. at 6-10), substantial evidence supports the
judge's determination that, as repaired, the raise structure
presented a hazard to persons after the raise was returned to
production in that a precipitating event, such as loading the
raise, could cause the dividing wall to fail.  Stork's testimony
supports the judge's S&S conclusion in that Stork testified that
the repairs to the raise structure were adequate only if the
raise was used to transfer ore and did not become loaded.  Stork
acknowledged that safety would be progressively diminished if
muck accumulated beyond the concreted set at the bottom of the
raise, and that the raise was vulnerable to further distortion
under another hang-up.  Spry also acknowledged that the ore pass
would not be safe unless muck was removed from the ore pass as
soon as it was dumped.  On August 10, while Dynatec miners were
in the manway, the ore pass became loaded and hung-up.  Thus,
there was a reasonable likelihood of injury resulting from
Dynatec's actions in permitting its employees to gain access to
the manway on August 10, while safe access was not provided or
maintained.  Accordingly, we affirm the judge's S&S
determination.

          3.   Unwarrantable Failure

     The judge determined that Dynatec's violation of section
57.11001 was caused by its unwarrantable failure.  20 FMSHRC at
1080.  He reasoned that Dynatec demonstrated a serious lack of
reasonable care by allowing its miners to work in the structure
after the hangup developed, and by failing to suitably warn Magma
employees that they were endangering their lives by continuing to
work in the raise structure below the hangup.  Id. at 1080-81.

     Dynatec argues that the judge erred in finding that its
violation of section 57.11001 was unwarrantable because the judge
failed to evaluate the reasonableness of Dynatec's decision to
allow its employees to work in the raise on August 9 and 10.  PDR
at 22-23.  It asserts that it was highly unlikely that a
hazardous condition would arise while its employees were in the
raise; that it had received assurances from Magma that the raise
would not be misused; and that Dynatec withdrew its employees
when blasting was to occur.  Id. at 23.

     Substantial evidence supports the judge's unwarrantable
failure determination.  As discussed above (slip op. at 12),
Dynatec knew that the repairs it performed were inadequate to
make the raise structure safe if the raise became loaded, or was
blasted.  In addition, substantial evidence supports the judge's
determination that it was foreseeable that the raise would become
loaded.  Although Dynatec claims that it received assurances that
the raise would not be misused, Spaulding understood that Magma
considered blasting in the raise as an option, albeit one of last
resort.  Tr. 729; Statement No. 39, at 40-41, 85-86; Statement
No. 36, at 26.  Given the inadequacy of the repairs, the
conditions that existed during production, and Dynatec's
knowledge that the raise structure posed a serious hazard to
miners if it became loaded or was blasted, Dynatec engaged in
aggravated conduct by permitting its employees to gain access to
the manway during production on August 10.  Contrary to Dynatec's
assertions, its conduct in withdrawing its miners before the
raise was blasted does not demonstrate that its conduct was not
aggravated.  While its actions ultimately saved Dynatec miners'
lives, its actions in permitting its employees to gain access in
the first instance nonetheless demonstrated a serious lack of
reasonable care.[15]  Accordingly, we affirm the judge's finding
that Dynatec's violation of section 57.11001 was caused by its
unwarrantable failure.

**FOOTNOTES**

     [8]:  Substantial  evidence  supports  the  judge's  related
finding  that  Dynatec  failed  to  take  appropriate  action  to
establish  that  Magma  appreciated the hazard posed to miners by
returning the raise to production  before  permanent repairs were
made.   20  FMSHRC  at  1070,  1076, 1078.  As the  judge  found,
Dynatec's verbal warnings to Magma  were  framed more in terms of
longevity of the raise, rather than ensuring  that  miners' lives
were  not placed at risk.  Id. at 1070, 1076.  Kannegaard  stated
that when he examined the damaged raise with Spaulding, Spaulding
stated  that continual blasting of the raise would hurt the raise
beyond repairability.  Statement No. 22, at 106-07.  In addition,
on August  4,  when  Spaulding  spoke  with  Magma's  manager for
underground  mines,  Steve  Lautenschlaeger,  Spaulding testified
that he did not inform Lautenschlaeger that it would be unsafe to
use the raise if it were not rebuilt.  Tr. 545,  727.   Spaulding
stated that his concern when he spoke to Lautenschlaeger  was the
longevity  of the raise.  Tr. 727; see also Stip. Doc. 84.   Spry
testified that  at  the  August  6  lunch, he told Kannegaard and
Fudge  that  he  thought  the repairs were  "good  .  .  .  [for]
straighten[ing] out [or] fix[ing]  up"  the  raise,  but that the
repairs  were only a temporary rather than a permanent  solution.
Tr. 632-33.

     [9]:  Commissioners Riley and Verheggen would emphasize that
they do not  consider  Dynatec  to  be  a  guarantor  of  Magma's
conduct,   particularly  given  Dynatec's  inability  to  control
Magma's actions  or  the raise.  Nonetheless, they conclude that,
given Dynatec's knowledge,  the  lack  of  formality of Dynatec's
warnings is a factor demonstrating Dynatec's disregard of a known
hazard, and supports the judge's unwarrantable failure finding.

     [10]:   We  reject  Dynatec's  argument that  the  penalties
assessed  against Dynatec impermissibly  exceeded  the  statutory
maximum of  $50,000 per violation because Magma had been assessed
penalties  of   $50,000  for  the  same  standards  that  Dynatec
allegedly violated.   PDR  at  39-40.  Section 110(a) of the Mine
Act expressly recognizes that there may be multiple violations of
one  standard,  that each violation  may  constitute  a  separate
offense, and that each violation by an operator shall be assessed
a civil penalty up to $50,000.  30 U.S.C.
 820(a).  Dynatec and Magma were separately cited for violations
that they each allegedly committed.  Thus, each may be assessed a
civil penalty of  up  to  the  maximum  statutory amount for each
violation.

     [11]:  We reject Dynatec's assertion that Magma's negligence
was  imputed  to Dynatec for unwarrantable  failure  and  penalty
assessment purposes.   PDR  at  36-37.   The judge did not impute
Magma's  negligence  to  Dynatec but, rather,  reduced  penalties
assessed against Dynatec based  in  part  on Magma's actions.  20
FMSHRC at 1090.

     [12]:  Section 57.11001 provides that  a  "[s]afe  means  of
access shall be provided and maintained to all working places."

     [13]:  Because evidence of Dynatec's employees in the manway
on  August  10  amounts  to  substantial  evidence supporting the
judge's determination that Dynatec violated  section 57.11001, we
need not reach Dynatec's remaining arguments that the judge erred
in finding a violation due to Dynatec's presence in the manway on
August 9, and Dynatec's failure to adequately warn Magma that the
manway did not provide a safe means of access.

     [14]:    Dynatec's   asserts   that  the  judge  erroneously
penalized Dynatec twice for allegedly  exposing  its employees to
hazardous  conditions in the raise on the B shift on  August  10,
and that  the  citation  alleging  a violation of section 57.3360
and  the  order  alleging  a violation of  section  57.11001  are
duplicative.  PDR at 35-36.   We  disagree.   The  Commission has
recognized that citations are not duplicative when the  standards
involved  impose  separate  and  distinct  duties on an operator.
Western Fuels-Utah, Inc., 19 FMSHRC 994, 1003 (June 1997); Cyprus
Tonopah Mining Corp., 15 FMSHRC 367, 378 (Mar.  1993).  While the
citation  and order alleging violations of sections  57.3360  and
57.11001 are  related  in  that  the failure to repair or replace
ground support timber also contributed to making access to a work
place unsafe, section 57.3360 requires  repair  or replacement of
damaged  ground support timbers, while section 57.11001  requires
that safe  access be provided and maintained.  In effect, Dynatec
violated section  57.3360  by  an  act  of omission by failing to
repair or replace ground support timbers,  and  violated  section
57.11001  by an act of commission by allowing its miners to  gain
access to an  area in which safe access to working places had not
been provided and  maintained.   See  Southern  Ohio  Coal Co., 4
FMSHRC  1459,  1463  (Aug.  1982)  (holding  that  violations  of
omission and commission were not duplicative).

     [15]:  The judge appropriately considered Dynatec's  actions
in withdrawing its miners by reducing the penalty from $50,000 to
$20,000,   although   concluding,   nonetheless,  that  Dynatec's
violation was unwarrantable.  20 FMSHRC at 1080-81, 1090.

     C.   Alleged violation of 30 C.F.R.  57.3401:[16]  Order
          Nos. 4410469 through 4410474

     The judge noted that the purpose of section 57.3401 is to
ensure that ground and ground support do not pose a hazard to
miners.  20 FMSHRC at 1083.  He found that on August 6, Dynatec
knew that the raise structure was compromised, but did not know
what portions of the structure had failed.  Id.  The judge noted
that while Dynatec examined the manway prior to the beginning of
each shift, the examinations were not comprehensive enough to
pinpoint hazards given that the raise had settled eight to ten
inches, and that Dynatec knew that the settlement posed a
significant safety hazard.  Id. at 1083-84.  In addition, he
concluded that Dynatec failed to examine the ground surrounding
the raise structure.  Id. at 1084.  Accordingly, the judge
concluded that Dynatec violated section 57.3401, and affirmed the
six orders alleging violations of the standard.  Id. at 1083-84.

     Dynatec argues that, by reading "ground support structures"
into the meaning of "ground conditions," the judge interpreted
the standard contrary to its plain meaning.  PDR at 27.  Dynatec
also asserts that it was deprived of fair notice because a
reasonably prudent person would not have recognized that the
standard required examination of ground support structures.  Id.
at 28.  It maintains that, even if the standard is applicable,
Dynatec met its requirements by examining, measuring and
monitoring the timber, and that it did pinpoint hazards.  Id. at
29-30.  Dynatec contends that, from its examinations, it
determined that blocking had been compromised, and recommended to
Magma that it completely rebuild the raise.  D. Reply Br. at 6.
Dynatec also asserts that a reasonably prudent person would not
have removed timber to examine ground conditions absent some
indicia that ground conditions were problematic.  Id. at 4 n.3.

     The Secretary argues that the judge's finding that Dynatec
failed to perform adequate examinations is supported by
substantial evidence.  S. Br. at 20.  She maintains that the
judge correctly accepted the Secretary's interpretation that an
examination under the standard requires an examination of the
support structure, which she submits is apparent from the plain
meaning of the standard.  Id. at 22-23.  She contends that
Dynatec failed to make complete examinations of the raise
structure.  Id. at 24-25.  In addition, the Secretary asserts
that, even though surrounding rock appeared stable, Dynatec did
not know that because it did not attempt to examine the ground.
Id. at 20-21.

     The judge faulted Dynatec for failing to implement a plan
for examining blocking and for not determining whether the rock
walls surrounding the raise structure were contributing to the
damage of the raise structure.  20 FMSHRC at 1084.  The judge
explained that if Dynatec had conducted a more extensive
examination, Dynatec "may have been able to use a written report
of such an examination to convince Magma Copper to shut down the
raise until permanent repairs were completed."  Id.  Whether an
examination of the blocking or the surrounding rock might have
persuaded Magma to shut down the raise pending Dynatec's
completion of permanent repairs is too speculative a basis for us
to uphold the violations of section 57.3401.

     Rather, the adequacy of Dynatec's examinations must be
judged in light of the purpose of the standard, which means that
the examinations should be, as the judge stated, "designed to
pinpoint the problems so that they can be fixed before miners are
exposed to the hazards."  20 FMSHRC at 1084 (emphasis omitted).
It is undisputed that Dynatec examined the inside of the manway
prior to each shift.  20 FMSHRC at 1083.  Both parties agree
that:

          Dynatec inspections revealed that the
          structure had settled eight to ten inches
          from its original installation; that there
          was separation between the joints; that a
          divider plate was broken; that blocking was
          sheared; that ladders were loose and broken;
          that landings and the divider wall were
          displaced; and that divider cribbing and ore
          was present in the manway.

S. Br. at 3; D. Reply Br. at 3.  Moreover, Dynatec contends that,
from its examinations, it determined that blocking was
compromised, and that it had slipped, shifted, or sheared.  D.
Reply Br. at 5.  Based upon its examinations, Dynatec recommended
to Magma that either the entire raise had to be rebuilt or a
metal liner had to be inserted into the ore pass.  Tr. 630-32,
726-27.  In addition, Dynatec discussed with Magma pouring sand
grout backfill at various locations behind the raise structure.
20 FMSHRC at 1069 n.4, 1076; Tr. 728.  Had Dynatec's
recommendations been implemented before production resumed, it is
undisputed that those repairs would have restored the stability
of the raise structure.  20 FMSHRC at 1069 n.4, 1076.  Thus,
Dynatec's examinations of the raise structure pinpointed the
problems that needed to be fixed to insure that miners would not
be exposed to hazards.[17]

     As for the surrounding rock, Dynatec asserts that a
reasonably prudent person would not have removed timber in the
raise structure to examine ground conditions absent some indicia
that ground conditions were problematic.  D. Reply Br. at 4 n.3.
Damage to the raise structure was discovered on August 3 directly
following shifts when Magma had made a concerted effort to blast
the hang-up.  20 FMSHRC at 1061; Tr. 622-23, 716-17.
Overwhelming evidence in the record reveals that Dynatec
witnesses believed that the raise structure had settled and been
damaged as a result of the hang-up and blasting between July 30
and August 3.  See Tr. 804, 935-36, 941, 977; Statement No. 9, at
10-11; Statement No. 11, at 9, 22; Statement No. 22, at 49;
Statement No. 26, at 46-48; Statement No. 38, at 109; Statement
No. 49, at 15-16; Statement No. 50, at 8-10; Statement No. 42, at
18-25; Statement No. 23, at 154.  Given the correlation in time
between the blasting, hang-up, and observed damage, we agree with
Dynatec that a reasonably prudent person would not have
recognized that he or she was required to examine the ground
conditions of the surrounding rock to determine whether they
contributed to the damaged raise structure, when it appeared that
damage to the raise structure had been caused by the blasting and
hang-up.  Moreover, the record is devoid of any evidence that
hazards might have remained unaddressed as a result of Dynatec's
failure to examine the rock surrounding the raise structure.
Even assuming that the initial damage suffered by that structure
had resulted in part from the surrounding rock wall, if Dynatec's
suggestions had been carried out before production began again,
the stability of the raise structure would have been
reestablished.  Thus, substantial evidence does not support the
judge's determination that Dynatec violated section 57.3401 by
failing to examine the ground surrounding the raise structure.
Accordingly, we reverse the judge's determination that Dynatec
violated section 57.3401 and vacate the associated civil
penalties assessed by the judge.

     D.   Alleged Violation of 30 C.F.R.  57.18002(a):[18]
          Order Nos. 4410475 through 4410479

     The judge vacated the five orders alleging violations of
section 57.18002(a) as duplicative, based on his determination
that the examinations required by 57.18002(a) were the same as
those required under section 57.3401.  20 FMSHRC at 1088, 1091.
He also concluded, however, that if he had found that the
violations issued under section 57.3401 had been invalid, he
would alternatively affirm the violations issued under section
57.18002(a), and their associated special findings, and that his
analysis would be the same under either standard.  Id. at 1089.

     Dynatec argues that the judge correctly vacated the orders
alleging violations of section 57.18002(a).  PDR at 31.  It
contends that, if the Commission finds it necessary to consider
the orders alleging violations of section 57.18002(a), it should
find that the judge erred in concluding that Dynatec violated
section 57.18002(a).  PDR at 31-32.  The Secretary responds that
the judge properly found in the alternative that Dynatec violated
section 57.18002(a).  S. Br. at 26.  In its reply brief, Dynatec
argues that the alleged violations of section 57.18002(a) are not
before the Commission because the Secretary failed to preserve
them by filing a cross-petition for discretionary review.  D.
Reply Br. at 8 n.13.

     Chairman Jordan and Commissioner Beatty would vacate that
portion of the judge's decision holding that the orders alleging
violations of section 57.3401 and 57.18002(a) are duplicative,
and vacating the orders alleging violations of section
57.18002(a), and remand for further consideration by the judge.
Commissioner Riley and Commissioner Verheggen conclude that the
orders alleging violations of section 57.18002(a), and the
judge's determination of duplication, are not before the
Commission.  The effect of the split decision is to leave
standing the judge's vacation of the orders alleging violations
of section 57.18002(a).  See Pennsylvania Electric Co., 12 FMSHRC
1562, 1563-65 (Aug. 1990), aff'd on other grounds, 969 F.2d 1501
(3d Cir. 1992).

     The separate opinions of Commissioners follow.

**FOOTNOTES**

     [16]:  Section 57.3401 provides:

          Persons experienced in examining  and testing
          for loose ground shall be designated  by  the
          mine  operator.   Appropriate  supervisors or
          other  designated persons shall examine  and,
          where applicable,  test  ground conditions in
          areas where work is to be performed, prior to
          work  commencing,  after  blasting,   and  as
          ground  conditions  warrant  during  the work
          shift.      Underground    haulageways    and
          travelways .  . . shall be examined weekly or
          more  often  if  changing  ground  conditions
          warrant.

     [17]:  We also note that, contrary to the judge's findings,
Dynatec's development and implementation of a specific plan for
examining blocking at strategic locations would not necessarily 
have allowed Dynatec to better  identify  hazards in  the raise
structure. 20 FMSHRC at 1083-84. While drilling  holes in  the  
lagging  would  have allowed  for some  examination of blocking
behind the  manwa  and at the center posts (Tr. 95-96, 111-12, 
460, 639), it would not have  allowed examination of blocking  
behind portions  of  the  ore  pass, because the ore pass was 
enclosed with armored cribbing. Tr. 196, 639; Statement No. 42,
at 40-41; Statement No. 43, at 132; Statement No. 49, at 61-63.

     [18]:  Section 57.18002(a) provides:

          A competent person designated by the operator
          shall examine  each  working  place  at least
          once  each  shift  for  conditions  which may
          adversely   affect  safety  or  health.   The
          operator   shall    promptly    initiate   an
          appropriate    action    to    correct   such
          conditions.

                               III.

             Separate Opinions of the Commissioners

Chairman Jordan and Commissioner Beatty, in favor of vacating and
remanding:

     We would vacate that portion of the judge's decision
vacating the orders alleging violations of section 57.18002(a),
and would remand for further consideration by the judge.

     Preliminarily, we conclude that the issue of whether the
judge properly vacated the orders alleging violations of section
57.18002(a) is within the scope of the Commission's review.
Under the Mine Act and the Commission's procedural rules, review
is limited to the questions raised in the petition and by the
Commission sua sponte. 30 U.S.C.  823(d)(2)(A)(iii) and (B); 29
C.F.R.  2700.70.  Dynatec argues that the Secretary did not file
a cross-petition for review of the judge's ruling vacating those
orders.  D. Reply Br. at 8 n.13.

     However, our review of the question of whether section
57.18002(a) was violated is a "direct and logical outgrowth" of
our reversal of the judge's determination that Dynatec violated
section 57.3401 and is therefore properly before us.  See Black
Mesa Pipeline Inc., 22 FMSHRC 708, 716 & n.8 (June 2000).  As a
result of our reversal of the judge's ruling on that violation,
Dynatec is now no longer subject to a penalty for violating
section 57.3401.  Consequently, the judge's rationale for
vacating the orders alleging violations of section 57.18002(a) -
the inequities of penalizing Dynatec for violations of both
section 57.3401 and section 57.18002(a), which he found to be
duplicative, 20 FMSHRC at 1088-89 -  no longer exists, as the
alleged violations of section 57.3401 are now vacated. The
Secretary was not obligated to file a cross-petition in
anticipation of this procedural scenario.  See 15A Wright, Miller
& Cooper, Federal Practice and Procedure: Jurisdiction 2d  3904
at 203-04 (2d ed. 1992) ("Cross-appeal also is not required to
preserve the right to orderly disposition of issues that become
relevant only because of reversal.").

     This position is consistent with the Commission's decision
in Black Mesa.  In that case, the Commission reversed a judge's
finding of a violation of a regulation that the Secretary claimed
was due to the operator's failure to provide a person qualified
to conduct a high voltage electrical examination.  22 FMSHRC at
713.  In reversing this violation, the Commission invalidated
part of the Secretary's program for qualifying electricians,
which had more stringent standards for high voltage work.  Id.
It then went on to reverse the judge's finding of a violation of
a record-keeping requirement, which the inspector had alleged was
violated because the records were not kept by a high-voltage
qualified electrician.  Id. at 716.  Although the operator had
not included this issue in its petition for discretionary review,
the Commission stated that it could review it because it was a
"direct and logical outgrowth" of the disposition of the related
first violation.  Id. at 716 & n.8.  Similarly, we may review the
issue of whether Dynatec violated section 57.18002(a), because
that question is naturally resuscitated by our reversal of the
violation of section 57.3401.[1]

     When the judge concluded that sections 57.3401 and
57.18002(a) had duplicative examination requirements with respect
to the violations alleged herein, he confined his consideration
to the first sentence of section 57.18002(a).  20 FMSHRC at 1087-
89.  He did not discuss whether Dynatec could have violated the
second sentence of the regulation by failing to promptly initiate
appropriate action to correct conditions affecting safety.
Moreover, the parties have not fully briefed that question.
Under these circumstances, we deem it appropriate to vacate that
portion of the judge's decision vacating the orders alleging
violations of section 57.18002(a), and remand for further
consideration consistent with our opinion.  On remand, we would
instruct the judge that he may give the parties an opportunity to
submit additional briefs regarding whether Dynatec violated the
provisions of section 57.18002(a).
                                

                                   Mary Lu Jordan, Chairman

                                   Robert H. Beatty, Jr., 
                                     Commissioner

**FOOTNOTES**

     [1]:   We also note that some courts and  commentators  have
concluded that  an  appellee's  failure  to file a cross-petition
does not amount to a jurisdictional defect  precluding  the court
from enlarging a judgment in favor of the appellee.  See  Coe  v.
County  of Cook, 162 F.3d 491, 497 (7th Cir. 1998), cert den. 526
U.S. 1040  (1999);  15  James  Wm  Moore  et al., Moore's Federal
Practice  205.04[2] at 205-46 through 205-47  (3d ed. 2000); 15A
Charles  Alan  Wright, et al., Federal Practice and  Procedure  
3904 at 211-18 (2d  ed.  1992).   In  Coe,  the  Seventh  Circuit
explained  that because the purpose of requiring a cross-petition
is "to notify  the appellant that the appellee wants to alter and
not merely defend  the  judgment  .  . . , there is no compelling
reason  to  enforce  it when the appellant  has  been  adequately
notified  of  the  appellee's  intentions."   162  F.3d  at  497.
Dynatec cannot claim  lack  of  notice of this since it raised in
its own petition for discretionary review the question of whether
the judge erred in his alternative  finding that Dynatec violated
section 57.18002(a).  PDR at 31-32.

Commissioners Riley and Verheggen, in favor of not reaching the
issue of whether the judge properly vacated the five orders
alleging violations of section 57.18002(a) as duplicative:

     We do not reach the issue of whether the judge properly
vacated the five orders alleging violations of section
57.18002(a) as duplicative because this issue is not before the
Commission.  Under the Mine Act, review is limited to the
questions raised sua sponte by the Commission, or in a petition
for discretionary review filed by "[a]ny person adversely
affected or aggrieved by a decision of an administrative law
judge."  30 U.S.C.  823(d)(2).  Here, the Secretary did not
appeal that portion of the judge's opinion in which he vacated
the orders alleging violations of section 57.18002(a).  Nor did
the Commission order sua sponte review of that portion of the
judge's decision.  The issue is thus not before the
Commission.[1]

     We do not agree with our colleagues when they state that
"the question of whether section 57.18002(a) was violated is a
`direct and logical outgrowth' of our reversal of the judge's
determination that Dynatec violated section 57.3401 and is
therefore properly before us."  Slip op. at 23.  First, the
relevant question is not "whether section 57.18002(a) was
violated."[2]  Instead, had the issue been brought before us by
the Secretary, she would necessarily have had to argue that the
judge erred in finding the section 57.18002(a) orders as
duplicative of the section 57.3401 orders, and she would have had
to offer reasons why the two sets of orders were not duplicative.

     Nor do we view the question posed by our colleagues as "a
`direct and logical outgrowth' of our reversal of the judge's
determination that Dynatec violated section 57.3401."  Slip op.
at 23.  To the contrary, the full Commission's reversal of the
judge's holding on the section 57.3401 violations has no impact
on the independent and separate allegations made by the Secretary
with respect to section 57.18002(a).  In the Black Mesa Pipeline
Inc. case cited by our colleagues, the Commission invalidated a
policy of the Secretary that was at odds with the regulation the
policy sought to implement.  22 FMSHRC 708, 713 (June 2000).  In
light of this holding, the Commission went on to reverse the
judge's determination that Black Mesa violated an intrinsically
related record-keeping requirement.  Id. at 716 & n.8.  The
alleged record-keeping violation in Black Mesa was effectively no
longer a violation because the Commission invalidated the policy
on which the violation was ultimately based.  In Black Mesa, the
record-keeping violation was "a direct and logical outgrowth" of
the Commission's holding on the policy in the same way, for
example, the failure to enter an accumulation on a record of a
pre-shift examination would be directly affected by a finding
that the alleged accumulation did not exist.

     Accordingly, we thus disagree with our colleague's decision
to reach this issue, which, for the foregoing reasons, we do not
reach.

                                   James C. Riley, Commissioner

                                   Theodore F. Verheggen,
                                     Commissioner

Distribution

C. Gregory Ruffenach, Esq.
Ruffenach Law Offices
450 East 3rd Avenue
Durango, CO 81301

Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

**FOOTNOTES**

     [1]:  Our colleagues state that  "[t]he  Secretary  was  not
obligated  to  file  a  cross-petition  in  anticipation  of" the
Commission's decision to reverse the judge's finding that Dynatec
violated section 57.3401.  Slip op. at 23.  Neither the Mine  Act
nor   the   Commission's  Procedural  Rules,  however,  make  any
provision for filing cross petitions similar to the provision for
filing cross  appeals  contained  in  Rule 4(a)(3) of the Federal
Rules of Appellate Procedure.

     [2]:  The judge's "alternative finding"  that  he would have
affirmed  the  section 57.18002(a) violations had he vacated  the
section 57.3401 violations is dicta on which we offer no opinion.