.
DYNATEC MINING COORPORATION
September 24, 1998
WEST 94-645-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                       September 24, 1998

SECRETARY OF LABOR,           :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :  Docket No. WEST 94-645-M
                Petitioner    :  A.C. No. 02-00152-05503 WJ6
          v.                  :
                              :
DYNATEC MINING CORPORATION,   :  Magma/Superior Mine
                Respondent    :

                            DECISION

Appearances:  Edward H. Fitch, IV, Esq., Office of the
              Solicitor, U.S. Department of Labor, Arlington,
              Virginia, for Petitioner; C. Gregory Ruffennach,
              Esq., Durango, Colorado, for Respondent.

Before:  Judge Manning

     This case is before me on a petition for assessment of
penalty filed by the Secretary of Labor, acting through the Mine
Safety and Health Administration ("MSHA"), against Dynatec Mining
Corporation ("Dynatec") pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.  815 and
820 (the "Mine Act").  The petition alleges 14 violations of the
Secretary's safety standards.  A hearing was held in Denver,
Colorado.  The parties presented testimony and documentary
evidence, and filed post-hearing briefs.

I.  FINDINGS OF FACT

     A.  Background

     The citation and orders contested in this proceeding were
issued by MSHA following a fatal accident at the Magma/Superior
Mine on August 10, 1993.  This mine was an underground copper
mine in Gila County, Arizona.  The mine is no longer in
operation.  The accident occurred when a wooden structure that
had been constructed inside the 865 Raise collapsed killing four
miners who were in the raise.  The mine operator was Magma Copper
Company ("Magma Copper") and Dynatec was the independent
contractor who constructed the raise and the wooden structure
within the raise.  The Secretary issued citations against both
Magma Copper and Dynatec.  This proceeding involves one section
104(d)(1) citation and 13 section 104(d)(1) orders of withdrawal.
The Secretary proposed a civil penalty of $700,000 for the
alleged violations.

     In 1996, an indirect subsidiary of Broken Hill Proprietary
Company Limited merged into Magma Copper.  As a result of this
merger, Magma Copper became BHP Copper, Inc. ("BHP Copper").  On
July 17, 1998, BHP Copper, the United States Attorney for the
District of Arizona, the Secretary of Labor, and the State of
Arizona executed a Global Settlement Agreement (the "Global
Settlement"), which resolved all of the issues between the
parties related to the investigation of the accident by the
United States and the State of Arizona.  Under the Global
Settlement, BHP Copper agreed to plead guilty to two misdemeanor
counts under section 110(d) of the Act and to pay criminal
penalties for these counts.  BHP Copper agreed to pay civil
penalties under section 110(a) of the Act in the amount of
$800,000.  BHP Copper also agreed to pay certain sums to the
State of Arizona.   On July 17, 1998, a United States Magistrate
Judge of the U. S. District Court for the District of Arizona
approved the settlement of the criminal matters.  By order dated
July 23, 1998, I approved the settlement of the civil proceedings
brought against Magma Copper under section 110(a) of the Mine
Act.

     B.  The Raise

     A raise is a vertical or inclined opening driven upward from
a level in a mine to connect with one or more levels above.  A
Dictionary of Mining, Mineral, and Related Terms, 893 (1968).
The 865 Raise (the "raise") was about 364 feet high and connected
the 4000 track level with the 3763, 3700, and 3636 levels.  The
raise was about 10 degrees from the vertical and was angled
towards the footwall.[1]  The excavation for the raise was
constructed to provide an opening of at least 10 feet by 20 feet.
The raise was designed to serve several functions.  First, it was
to be an ore pass through which blasted ore-bearing rock
(generally called "muck") would be dumped.  This muck would be
dumped down the raise to the 4000 track level for transportation
to the mill.  Second, the raise was to serve as a secondary
escapeway.  This escapeway (generally called the "manway") could
be used to evacuate miners in the event of an emergency and could
also be used to gain access to various parts of the raise.  A
drawing of the raise from Joint Exhibit A is attached to this
decision as Illustration No. 1.

     In order for the raise to serve as an ore pass and a manway,
Magma Copper designed a rectangular wooden structure to be
installed in the raise.  This wooden structure contained two
compartments, which were framed with ten by ten inch timber and
were separated by armored cribbing.  The ore pass compartment had
inside dimensions of about six by eight feet.  The manway
compartment was about six by six feet and contained water and air
lines, a ventilation pipe, a timber slide, and a series of
ladders with landings.  Two drawings showing the support timber
of the wooden structure from Joint Exhibit B are attached to this
decision as Illustration Nos. 2 and 3.

     The wooden structure within the raise (the "raise
structure") was designed by engineers employed by Magma Copper.
The timbers used to construct the raise structure were precut by
Magma Copper.  Dynatec drilled and blasted the raise and built
the raise structure in one operation.  That is, as drilling
proceeded upward from the 4000 level, the raise structure was
built to within a few feet of the face to provide a work platform
upon which to drill the next round.

     The raise structure was built in segments.  Each segment is
rectangular in shape and the support structure consists of
side-by-side interconnected sets constructed with ten- by
ten-inch timber cut to Magma's specifications.  The support
structure is shown in Illustrations 2 and 3 attached to this
decision.  In essence, the outside of the structure is framed
with the ten by ten timber and the inside is lined with timber.
The ore pass compartment was lined with 6- by 8-inch armored
cribs.  These cribs were armored with angle iron plates to
contain the broken muck within the ore pass.  The manway
compartment was enclosed with 3-inch wooden lagging nailed
outside the timber framework.

     Nails, screws, and mechanical fasteners were not used to
secure the framework for the raise structure.  Instead, daps and
tenons were present at the joints of the framework.  Magma Copper
relied on gravity and blocking between the framework and the rock
walls of the raise to keep the structure together.  Magma Copper
believed that the host rock in the raise would tend to squeeze
the raise structure thereby keeping it in place.  The lagging
along the outside of the framework for the manway was nailed into
place.  The cribbing used for the ore pass compartment was
installed using a "birdcage" design.  Vertical steel channels
were nailed to the framework on all four sides of the ore pass.
The flanges on these steel channels were one-half inch deep.  As
the raise structure was constructed, 6- by 8-inch armored cribs
were slid into the channels, one on top of another, until that
section was full.  The next horizontal timber frame was then
placed above the last crib.  The process was then repeated as the
next segment was constructed on top of the previous segment.  A
drawing showing the construction of a birdcage from Joint Exhibit
A is attached to this decision as Illustration No. 4.

     As the raise structure was built, blocking was installed at
each segment where the vertical and horizontal members of the
framework were joined.  The raise structure was framed at
intervals of seven feet four inches and each frame is called a
set.  The sets are consecutively numbered from the bottom to the
top. This blocking at each set prevented the raise structure from
moving outward horizontally and kept the vertical posts in line.
Rectangular 12-inch wooden blocks were placed against timber
joints and wedges were used between the host rock and the blocks
to tighten the blocking into place.  The blocking was designed to
help support the walls of the raise and to prevent these walls
from crushing the raise structure in the event of movement.  The
number of blocks used depended upon the space between the
framework and the host rock.

     As each segment of the raise structure was built, the raise
itself was drilled and blasted.  Boards placed on top of the most
recently constructed segment provided a work platform for the
next round of drilling and blasting.  Rock from each blast would
fall between the framework of the raise structure and the host
rock.  This material is generally referred to as backfill.
     The raise structure was not anchored into the rock wall of
the raise at any location between the 4000 track level and the
3763 level, except at the feeder immediately above the track
level.  Such anchors are generally called bearing sets and are
designed to transfer the weight of the raise structure above the
bearing set to the surrounding host rock.  There were no bearing
sets for a distance of about 200 feet.  Approximately 28 segments
of the raise structure were constructed between the feeder and
the 3763 level without bearing sets.

     C.  A Brief History of the Raise

     Magma Copper solicited bids to construct the raise, the
raise structure, and other facilities in December 1992.  Four
independent contractors, including Dynatec, submitted proposals.
The scope of the work was set out in drawings and specifications
developed by personnel at Magma Copper.  Dynatec was awarded the
contract later that month.  The contract stated that Magma Copper
would provide all construction materials and consumable supplies,
utilities, technical and surveying services, and other services
and facilities.  Dynatec was to provide all labor and
supervision, tools and equipment, and a safety and training
program for its employees.  Magma Copper supplied the drawings
and specifications for the project.  Dynatec proposed alternative
methods of constructing the raise structure.  Magma Copper
rejected Dynatec's proposed alternatives and the raise structure
was constructed in accordance with Magma Copper's design
specifications.

     In June 1993, Dynatec completed construction of the raise
from the 4000 level up to the 3763 level.  Starting in late June,
Magma Copper began dumping muck from the 3763 level down the ore
pass.  Dynatec continued to drive the raise from the 3736 level
up to the 3636 and also used the ore pass.  In June and July,
Magma Copper pulled ore from the bottom of the ore pass about
once a shift.  In late June and early July, material would
sometimes become hung up near the feeder chute at the 4000 level.
Explosives were sometimes used to free the hangup.  Between, July
11 and July 28, there were apparently no hangups in the ore pass.
This case involves that portion of the raise between the 4000 and
3763 levels.

     On July 29, 1993, a Magma Copper loader operator dumped 30
to 50 loads of sandfill down the ore pass.  Sandfill is a slurry
consisting of cement and sand.  Ore was not pulled from the ore
pass during that shift.  Starting on July 30, the ore pass was
blasted to clear hangups on a regular basis.  Magma Copper
personnel determined that the sandfill had hardened near set 11
in the ore pass and that this hardened sandfill was responsible
for the continuing hangups the raise was experiencing.

     On August 3, Magma Copper made a concerted effort to blast
the cemented sandfill out of the ore pass.  This area of the ore
pass was blasted about four times on the B shift on August 3.
After the area was blasted, Magma Copper employees discovered
that the ten- inch timber between the ore pass and the manway
(the "divider plate") was broken at set 8.

     Two Dynatec employees, including Project Superintendent Mark
Spaulding, inspected the raise and found two cribs 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.  They
determined that the raise structure had settled about eight to
ten inches from its original installation.  The settlement was
not uniform across the raise structure.  Magma Copper's Team
Leader for the raise project, Matthew Kannegaard, was notified.
He told the Dynatec employees that some settlement was to be
expected.

     As a result of the damage, Magma Copper closed the raise on
August 4.  Magma Copper provided Dynatec with a list of nine
items that needed to be repaired.  These items included: removing
the sandfill from the ore pass, cleaning down the manway,
stabilizing the broken divider plate at set No. 8, repairing all
broken ladders in the manway, spraying shotcrete in sets 20 and
21, and installing spreaders on all short manway wall plates.
(Joint Ex. 115).

     On August 6, at a going away breakfast for Dynatec
supervisor Ronald Spry, Spaulding told Kannegaard that it was
important that Magma Copper stop blasting and overloading the
raise.  (Tr. 728).  Mr. Spaulding suggested that Dynatec install
a sand grout backfill between the raise structure and the country
rock to stabilize the structure.  Spaulding understood that Magma
Copper would no longer blast hangups in the raise except when
absolutely necessary.  Air lances and sledge hammers would be
used to free hangups whenever possible.

     Dynatec employees entered the raise structure from the 3763
level and used explosives to remove the sandfill material that
was blocking the ore pass.  Dynatec then completed most of the
repairs set forth in Mr. Kannegaard's memo.  On the evening shift
of August 9, Magma Copper began using the ore pass for
production.

     On the evening shift on August 10, muck was pulled from the
bottom of the raise.  A hangup was reported at set No. 8.  Magma
Copper employees attempted to use an air lance to free the
hangup.  When that was not successful, Magma Copper employees
prepared to blast the hangup.  The ore pass was blasted, but it
became hung up again a short time later.  Preparations were made
to blast the ore pass a second time.  Bill Wilson, the Dynatec
raise superintendent that replaced Mr. Spry, removed all Dynatec
employees from the raise structure at that point because he did
not believe that such blasting was safe.  (Tr. 739).  Four Magma
Copper miners entered the raise from the 4000 level to set up the
blast and the raise structure failed at about 9:45 p.m.

     D.  The Accident

     The exact sequence of events that occurred on the night of
August 10, 1993, is not known.  It appears that a dividing wall
between the manway and the ore pass in the 865 raise gave way
allowing muck that was in the ore pass to fall down the manway.
Magma Copper employees dumped a considerable amount of muck into
the ore pass on August 10 with the result that it was full of ore
at the time of the accident.  No muck was pulled from the ore
pass during the day shift on August 10.  Muck was pulled during
the evening shift for only a short period because of the presence
of the hangup at about set 8.  Allowing an ore pass to fill up
with muck contributes to the formation of hangups.  The weight of
muck that accumulates in an ore pass puts a significant amount of
stress on the raise structure.
     It is clear that the dividing wall separating the ore pass
and the manway failed.  In all likelihood the armored cribbing
dislodged from the birdcages in one or more sets.  The failure of
the dividing wall allowed muck in the ore pass to spill down the
manway.  The falling muck, cribbing, and other dislodged material
from the raise structure killed the four Magma Copper miners who
were in the manway.

II.  DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS OF LAW

     A.  Summary of the Parties' Positions

          1.  Secretary of Labor

     MSHA's accident investigation team determined that Magma
Copper failed to use prudent engineering practices in the design
of the raise for a number of reasons.  MSHA determined that the
raise structure was inappropriate and inadequate for the ground
in which it was built because Magma Copper failed to conduct a
structural analysis of the design of the raise structure.  Magma
Copper failed to incorporate an adequate number of bearing sets
to support the foreseeable loads on the raise structure.  MSHA
also believes that Magma Copper should have incorporated
mechanical fasteners in the raise structure to prevent joint
separation.  The Secretary contends that these and other design
failures contributed to the collapse of the raise structure.

     MSHA also determined that Magma Copper misused the raise
structure by allowing the ore pass to become completely full of
muck before pulling the muck at the track level.  It believes
that this repetitive loading and unloading loosened the blocking
behind the raise structure, allowing outward movement of the
vertical timbers.  MSHA also believes that the raise structure
was damaged from improper hang-up blasting, which accelerated the
collapse of the settled structure.

     MSHA believes that the raise structure was in a state of
imminent danger from August 3 until its failure on August 10.  On
August 3, various individuals observed that the raise structure
had settled at least eight inches, that timbers had moved, and
that cribbing between the ore pass and the manway had become
dislodged from the birdcages.  MSHA believes that blocking behind
the raise structure was loose and that some blocks had fallen,
which allowed the raise structure to spread outward.  Because the
cribbing was secured solely by the birdcages, outward movement of
the timbers in the raise structure would allow cribbing to become
loose and unable to hold back the weight of the muck in the ore
pass.

     The Secretary contends that Dynatec is also responsible for
the failure of the raise structure.  She argues Dynatec failed to
use prudent engineering practices when it constructed the raise.
She contends that Dynatec failed to determine whether the
blocking and backfilling that it installed was adequate to
control the ground and stabilize the structure.  The Secretary
maintains that, after the raise structure settled, Dynatec failed
to adequately address the problem.  It also failed to adequately
inspect and evaluate the condition of the raise on August 3 and 4
to ensure that all structural problems were addressed.  MSHA
believes that the repairs completed by Dynatec were superficial
and did not address the structural problems.

     The Secretary charged Dynatec with violating four mandatory
safety standards.  She contends that the evidence developed
during MSHA's investigation and presented at the hearing
demonstrates that Dynatec failed to achieve compliance with all
four mandatory standards.  The Secretary argues that Dynatec
continued to direct its employees to work on the raise after
August 3 on cosmetic and inadequate repairs so that the raise
could be put back into production.  She maintains that Dynatec
chose to ignore the substantive structural defects that it knew
existed in the raise.  She states that whenever Dynatec presented
Magma Copper with alternative construction or repair methods, it
demonstrated its awareness of the structural problems with the
raise.  As a consequence, she argues that Dynatec cannot escape
liability on the basis that it merely did what it was told to do
by Magma Copper.  The Secretary maintains that Dynatec had an
independent duty to ensure that the raise was safe and to comply
with the Secretary's safety standards.  The Secretary believes
that Dynatec's on-site supervisors were aware that the raise
structure was on the verge of collapse after August 3, and that
Magma Copper was misusing the raise, yet they continued to direct
Dynatec's employees to work on the raise.

     The Secretary contends that the failure of Magma Copper and
Dynatec to address the settlement of the raise before allowing
the raise to be used for production resulted in the failure of
the raise structure a day after it was put back into use and only
43 days after Magma Copper began to dump muck into the ore pass.
Given the condition of the raise and the way in which it was
used, there was no question that the raise structure would fail;
it was only a matter of time.

          2.  Dynatec Mining Corporation

     Dynatec argues that the raise structure was not on the verge
of collapse after August 3.  It contends that the materials
handling crew of Magma Copper, which cumulatively had less than
four years of mining experience, allowed muck to accumulate in
the ore pass thereby creating hangups.  This same crew then used
explosives in an attempt to remove the hangup.  Dynatec contends
that Magma Copper employees seriously misused the raise in the
month preceding the accident and this misuse caused the failure
of the raise structure.

     Dynatec also points to the conclusions drawn by MSHA's
technical support personnel and MSHA's independent consulting
structural engineer.  The consulting engineer concluded that the
"accident occurred as the result of an improper and incomplete
structural design" of the raise structure.  (Joint Ex. 140 at 3).
Dynatec argues that Magma Copper's design was not strong enough
for the use to which it was actually put.  Magma Copper used the
raise beyond its design capacity.  When Dynatec suggested that
the raise structure be constructed using a different method to
include bearing sets to make it stronger, Magma Copper rejected
all of Dynatec's suggestions.

     When the raise settled in early August, Dynatec states that
it suggested to Magma Copper management that the raise structure
be strengthened and improved.  These suggestions were not
implemented by Magma Copper.  It argues that these suggested
repairs would have improved the raise structure's design
capacity.  When Magma Copper returned the raise to service prior
to the completion of the permanent repairs suggested by Dynatec,
Dynatec recommended limitations on use that, if followed, would
have prevented the raise from being used beyond its design
capacity.   Magma Copper assigned inexperienced miners to work in
the raise and the miners allowed the ore pass to be filled to
capacity.  Dynatec employees advised Magma Copper management on a
number of occasions that in so doing it was misusing the raise.
Dynatec also advised Magma Copper that it should not use
explosives to free the resulting hangups.

     Dynatec contends that the Secretary's attempt to penalize
Dynatec for the four fatalities is unreasonable.  Dynatec
maintains that the Secretary failed to prove that it violated any
of the four cited safety standards.  Dynatec argues that its
evidence establishes that it was not responsible for the accident
and that the Secretary's decision to proceed against it is
unwarranted.

     B.  General Considerations

     Two fundamental concepts must be kept in mind when analyzing
the issues in this case.  First, the Commission and the courts
have uniformly held that the Mine Act is a strict liability
statute.  See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (10th Cir.
1989).  "[W]hen a violation of a mandatory safety standard occurs
in a mine, the operator is automatically assessed a civil
penalty."  Id. at 1197.  The negligence of the operator and the
degree of the hazard created by the violation are taken into
consideration in assessing a civil penalty under section 110(i).
30 U.S.C.  820(i).

     On the other hand, the fact that a fatal accident occurs at
a mine does not establish that the mine operator violated a
safety standard.  Conditions in a mine are dynamic and can
quickly change.  An accident may occur despite the fact that an
operator is taking all reasonable precautions to prevent
accidents and is complying with all of the Secretary's safety and
health standards.  In order to establish a violation of a safety
standard, the Secretary cannot rely solely on the fact that an
accident occurred, but must prove that the operator did not
comply with the requirements of the safety standard.

     C.  General Discussion of the Events Leading up to the
Accident

     At the hearing and in their briefs, the parties devoted much
of their attention to the events that preceded the accident,
likely causes of the accident, and Dynatec's actions during this
period. The parties focused less on the individual citation and
orders than is typical in a civil penalty proceeding.  I have
analyzed these issues and enter findings of fact on these issues
as set forth below.  My focus is on the events that transpired on
and after August 3, 1993, the date that Dynatec discovered that
the raise had settled.  My findings on these issues bear directly
on my findings with respect to the citation and orders.  I
incorporate my findings below into the specific findings I made
for each alleged violation.

     I credit the evidence presented by the Secretary and Dynatec
that the raise structure was not designed to withstand the loads
and pressures to which it was subjected during its operation. The
ore pass was blasted on numerous occasions to remove hangups and
the sandfill, and the ore pass was repeatedly filled and emptied
of muck.  This use of the raise structure precipitated the
settlement and damage that was observed on August 3-4.  If the
ore pass had simply been used to transport muck in such a way
that muck was loaded onto trains immediately after it was dumped
down the ore pass, it is unlikely that the raise structure would
have settled or failed.  But the raise was not used solely as a
transportation device.  Magma Copper frequently used the ore pass
to store the muck until it could be transported out of the mine.
It was not unusual for the production crew to dump muck down the
ore pass at a faster rate than the train crew could load it onto
trains.  The raise structure was not capable of sustaining these
loads, especially when a hangup developed.   Hangups were more
common if fresh muck was dumped on top of muck that was already
in the ore pass.  If muck is subsequently drawn from the bottom,
a suspended load remains in the ore pass that places tremendous
lateral and vertical pressure on the raise structure.  As stated
above, Magma Copper frequently used explosives to remove hangups.
Such blasting, if not properly done, could also place great
pressure on the raise structure.

     It is important to understand that this raise, including the
raise structure, was built based on conceptual drawings.  There
were no engineering studies or calculations performed to assure
that the raise structure was capable of withstanding the loads
and pressures that would be placed upon it.  It is frequently the
practice in the metal mining industry for structures to be built
without the kind of engineering studies that would be required
for a public building or a bridge, for example.  Because this
raise structure was unique in its size and height, I find that a
reasonably prudent mine operator would have put more thought and
effort into determining if the design would hold up to the task.
Based on the evidence presented at the hearing, I find that the
raise structure was not properly designed to be used as an ore
pass and manway as it was actually used by Magma Copper.  I
credit the testimony and report of James Van Liere, a consulting
engineer retained by the Department of Labor, in this regard.  He
concluded that "procedures and methods employing the standards of
care, judgment, expertise, and experience normally associated
with the design of major structures [were not] used in the design
of this structure."  (Joint Ex. 140 p. 3).

     The experts retained by Dynatec reached similar conclusions.
For example, Peter J. Stork, a structural engineer retained by
Dynatec, stated in his report that "the design of the 865 raise
was deficient, in that the design vertical load capacity of the
timber structure was inadequate to support the gravity loads that
would be imposed on the ore compartment walls under hang-up
conditions, muck storage conditions, or even the dead load of the
empty raise alone."  (Joint Ex. D p. 7).

     I find that Dynatec constructed the raise and raise
structure in accordance with the plans submitted by Magma Copper.
I find that Dynatec's method of constructing the raise and the
condition of the raise, including the raise structure, conformed
to Magma Copper's designs in all material respects.  I find that
up until the time that the raise settled in early August,
Dynatec's performance did not violate the safety standards cited
by the Secretary or the spirit of the Mine Act.  I reject the
Secretary's argument that Dynatec failed to use prudent
engineering practices when it constructed the raise.[2]  The
remainder of my decision focuses on the events that occurred
after Dynatec determined that the raise structure had settled
eight to ten inches.

     On August 3 and 4, Dynatec recognized that the raise had
settled and was in need of repair.  Ronald Spry, Dynatec's raise
superintendent, testified that he first saw the settlement on
August 3.  (Tr. 623).  He calculated that the raise had settled
about eight to ten inches based on gaps he saw at various sets.
The ore pass side of the manway had settled relative to the
opposite end.  That is, the ore pass settled and the end wall on
the manway side stayed in approximately the same position.  (Tr.
312, 750).   Mr. Spry has extensive experience building raises
and he testified that he had "never seen a raise take that much
settlement without breaking something."  (Tr. 624).  He also
testified that this raise was the largest that he had ever worked
on in terms of the size of the excavation.  (Tr. 672).  Mr. Spry
knew that the raise was distressed.

     John C. Folinsbee, a consulting mining engineer who
testified on behalf of Dynatec, was experienced in the
construction and use of raises.  He testified that he had never
worked in such a large raise or a raise with the same design.
(Tr. 957).  He had never seen a raise that used birdcages to
secure cribbing around an ore pass, but he believes that it was a
"reasonable concept."  (Tr. 958).  He testified that the raise
was under stress after it settled on or about August 3.  He
further testified that the raise structure was "compromised" by
the settlement and "there was no way that minor repairs would
take it back to the condition that it was used -- as it was
intended from the beginning."  (Tr. 943).  He went on to state
that after this settlement, it was "obvious to everyone and
should have been obvious to everyone right up to the top of
Magma's management that some extraordinary steps should have been
taken at that time."  (Tr. 981) (emphasis added).

     Dynatec inspected the raise several times as did Mr.
Kannegaard on behalf of Magma Copper.  As discussed above, it was
determined that the raise should be closed.  Magma Copper
provided Dynatec with a of list of items that it wanted corrected
before the raise was put back into production.  The items were
described orally and a formal memorandum was drafted.  (Joint Ex.
115).  It is not disputed that these items did not address the
settlement problem.   For example, Mr. Spry testified the repair
items on the list would not fix the problems created by the
settlement and that the settlement problems could only be
addressed by rebuilding the raise structure.  (Tr. 665).  Mr.
Stork testified that the listed repairs did not address the basic
design deficiency of the raise structure.  (Tr. 821; Joint Ex. D
p. 9).  Mr. Folinsbee stated that the repairs were inadequate to
restore the raise to full use.  (Tr. 980).

    The Secretary contends that the raise structure was in the
state of "imminent danger" between August 3 and August 10 as a
result of the settlement and that no miners should have been in
the raise except those specified in section 107(a) of the Mine
Act.  I disagree with the Secretary's analysis.  The imminent
danger provisions of section 107(a) only come into play when an
MSHA inspector issues an imminent danger order.  Neither Magma
Copper nor Dynatec was required to comply with the requirements
of sections 107(a) or 104(c).  In addition, I credit the
testimony of Dynatec's witnesses that it was reasonably safe to
go into the raise from the top to remove the hangup and, once it
was removed, to be in the raise to perform the minor tasks set
forth on Magma Copper's list of repairs.  Many of the items were
necessary prerequisites to rebuilding or refurbishing the raise
structure in any event, such as cleaning down the manway and
repairing the ladders.  Miners working in the raise structure
were placed in danger only after the raise was returned to
production.

     I credit the testimony of Mr. Van Liere that the raise was
"on the verge of failure" after the settlement of August 3.  (Tr.
269).  This concept is different from imminent danger.  Mr. Van
Liere testified that until the settlement, the blocking that had
been installed was probably effective in keeping the raise
structure together.  (Tr. 267).  The blocking should have been
able to withstand some expected settlement, but the settlement
that occurred on or about August 3 was substantial.  Because
lagging was present along the outside walls of the manway, the
blocking could not be observed.  As a consequence, Dynatec did
not know whether the blocking was still intact or whether some of
the blocking had fallen away or was otherwise rendered
ineffective.  (Tr. 268).  If the blocking was loose at the center
posts, the cribbing in the birdcages might also become loose as
the center posts moved outward.  It is important to remember that
the only lateral force keeping the framework of the raise
structure together was provided by the blocking.  If the blocking
failed, the raise structure could reasonably be expected to fail
because the "restraint provided by the birdcages at the hanging
wall" would be decreased.  Id.  I find Mr. Van Liere's testimony
particularly persuasive as to possible events that could have
occurred after the August 3 settlement to cause the raise
structure to fail.

     Mr. Van Liere stated that no one knows how many sets of
blocking were still in contact with the center posts[3] but that
he believes that they were probably still "reasonably intact."
(Tr. 269).  He stated that the raise structure was on the verge
of failure because it would not have taken much to precipitate a
failure.  (Tr. 269-70, 295).  If an event caused the blocking
restraining the center post to fall out at a particular set, the
center post could kick out, the cribbing could come loose from
the birdcages, and any muck in the ore pass would cascade down
the manway.  (Tr. 270).  Reloading the ore pass with muck was an
event that could trigger a failure of the raise structure.  (Tr.
318).  Thus, the raise structure was reasonably stable on the
days following August 3, but a single ordinary event, such as
loading the ore pass, could cause the structure to fail.  Mr.
Folinsbee's testimony is not inconsistent with Mr. Van Liere's
analysis.  (Tr. 988).

     It is Dynatec's position that it was reasonable for it to
perform the minor repairs set forth in Kannegaard's memo and then
release the raise back to Magma Copper for what it terms "limited
service."  It believes that as long as the ore pass was not
loaded with muck and blasting was not performed, it was safe to
return the raise to production after the Kannegaard repairs were
completed.  I disagree.  As stated above, I credit Mr. Van
Liere's testimony that the raise was on the verge of failure and
that the structure could fail as a result of a seemingly ordinary
event once it was returned to production.  More importantly, I
find that it was highly unreasonable for Dynatec management to
believe that the raise could be used in the manner that Dynatec
expected.  It was virtually impossible for anyone to ensure that
the ore pass would not become loaded with muck.  Mr. Folinsbee
testified that it was his understanding that it would take about
two to three hours for the production crew to fill the ore pass
from set 8 to the 3763 intermediate level.  (Tr. 940).  Thus, if
the production crew was working and, for one reason or another,
the crew running the trains at the track level could not keep up
with the production crew, it would not take long for the ore pass
to become full or nearly full again.  Indeed, Mr. Spaulding
stated that this is exactly what happened.  The production crew
was filling the raise with muck and the "trammers weren't keeping
up with the mucker."  (Tr. 741).  "Muck built up in the raise to
where they had another blockage."  Id.  I find that this was a
reasonably foreseeable event.  The Secretary labels Dynatec's
limited service concept a "fantasy."  (S. Br. 23).  I agree.

     Dynatec's concept of limited service is illogical in the
context of a producing mine and is inconsistent with Magma
Copper's previous use of the raise.  Magma Copper officials made
clear their impatience to return the raise to production as soon
as possible.  It was unrealistic to think that they would limit
their use of the raise in the manner argued by Dynatec.  In
addition, even if such an attempt were made, it was likely that
the train crew would get behind and the ore pass would become
full enough to pose a hazard.  To summarize, it was foreseeable
that the raise would be loaded in the near future, that a hangup
would develop and, given the inexperience of the Magma Copper
crew, that attempts would be made to blast in the ore pass.

     Dynatec contends that because the mine and the raise were
owned by Magma Copper, it had no choice but to allow Magma Copper
to use the raise and it had to rely upon Magma Copper's
statements that it would not fill the ore pass or blast in the
ore pass until a more permanent solution to the settlement
problem was completed.[4]   I agree that Magma Copper owned and
controlled the ore pass and it agreed in informal discussions
that it would not, as Mr. Spaulding put it, "misuse" the raise.
(Tr. 728).  Dynatec, however, was an expert in the construction
of raises.  Its local managers knew that the raise had been
damaged and that the repairs mandated by Magma Copper did not
correct the fundamental problems.  It also appears that they did
not hold the skill and ability of Mr. Kannegaard, Magma Copper's
manager for this project, in high regard.[5]  (Tr. 768).  Based
on the record developed in this case, I find that Dynatec's
managers knew or should have known that loading the raise or
blasting in the raise had the potential to result in a failure of
a significant part of the raise structure and that such an event
would be life threatening to workers in the manway.

     Although Dynatec's managers expressed their general concerns
to Magma Copper's managers at a luncheon for Mr. Spry, Dynatec
did not communicate to the mine manager or anyone else that human
life was at risk if the ore pass were loaded again.  Dynatec's
concerns about the raise were cast in terms of the longevity of
the raise.  (Tr. 727).  Thus, it appears that the discussions
between Magma Copper and Dynatec focused on making the raise
structure last longer rather than ensuring that the lives of
miners were not put at risk.  It appears that Kannegaard did not
fully comprehend the risks posed by the raise structure after it
settled. (See for example, Joint Exs. 68 and 115).

     D.  Alleged Violations of 30 C.F.R.  57.3360

     On May 10, 1994, MSHA inspector Tyrone Goodspeed issued
Citation No. 4410466 and Order No. 4410467 alleging violations of
30 C.F.R.  57.3360.  The safety standard provides, in pertinent
part:

          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 used for ground support which creates
          a hazard to persons shall be repaired or replaced prior
          to any work or travel in the affected area.

I find that the raise was a ground support structure.
Because the ground at the mine was generally thought to be
squeezing ground, a support structure was needed to keep the
raise open and available for use.  The timbers of the raise
structure were designed to perform this support function.
Accordingly, the provisions of this safety standard applied
to the raise structure through the application of the first
sentence of section 57.3360.

          1.  Order No. 4410467

     This order alleges, in pertinent part:

          Necessary ground support in the area of the 865 Raise
          was not installed to control the ground in places where
          miners work or travel.  During the period 3/93 - 8/93,
          management failed to determine that support, such as
          backfilling and blocking, was adequate to control the
          ground and ground support structure which contributed
          to the lateral movement of structure members.  Movement
          of these structural members caused armored cribbing
          to be dislodged between the manway and ore pass
          compartment allowing ore and armored cribbing pieces to
          fall into the manway compartment.  This violation
          contributed to the failure of the raise on 8/10/93
          which resulted in the death of four miners.

               a.  Arguments

     The Secretary argues that, by agreeing to construct the
raise, Dynatec assumed responsibility to install the ground
support structure in such a way as to control the ground in the
raise to protect miners in the raise from falling ground and from
the structure itself.  She argues that its duties under this
standard are separate and independent from its contractual
obligations to Magma Copper.  The Secretary believes that it is
not critical that the "ground" that fell was muck inside the ore
pass, as opposed to ground from the host rock.  She states that
the order is based on the fact that the raise structure failed
and, as determined by MSHA during its investigation, that the
installation of this structure was inadequate under the
requirements of section 57.3360.  Specifically, Dynatec failed to
determine, at the time it constructed the raise, whether the
backfill and blocking were adequate to control the ground and
stabilize the raise structure.

     The Secretary contends that the backfill used behind the
raise structure was totally inadequate.  Dynatec used flyrock
from blasting.  She maintains that backfill was missing from
large areas behind the raise structure and was not uniform in its
placement.  The Secretary believes that Dynatec did not take any
precautions to ensure that the flyrock was adequate to serve as
backfill.  The Secretary also contends that blocking was
inadequate and sloppily installed.  The Secretary believes that
the backfill and blocking problems were exacerbated by the
overbreak caused by inadequately planned and executed blasting
performed by Dynatec miners when developing the raise.  Simply
put, the raise was too large for the raise structure with the
result that extensive blocking was required.  The Secretary
believes that the quantity of flyrock was inadequate to fill the
large space between the raise and raise structure.  The Secretary
contends that Dynatec failed to design and use a professional
drill blast plan with the result that the excavation was too
large to accommodate the precut timbers.

     Dynatec contends that the raise structure controlled the
ground.  It points to the fact that there is no evidence that the
ground outside the raise structure failed, fell, or contributed
in any way to the accident.  The ground never breached the
lagging of the raise structure.  Dynatec contends that the
Secretary is attempting to stretch the safety standard beyond its
intended meaning to include the muck in the ore pass.  It argues
that such a construction is contrary to the plain language of the
safety standard.   The standard requires the control of ground.
The material transported through the ore pass was "muck" not
"ground."  Second, it contends that the Secretary's
interpretation in this case is inconsistent with her
interpretation in other cases.  The failure of a ground support
structure is not the same as the failure of the ground.
Moreover, Dynatec contends that MSHA's interpretation of section
57.3360 does not provide mine operators with fair notice of what
is required.

     Dynatec also maintains that the Secretary failed to
establish a violation, even if MSHA's interpretation is adopted.
Dynatec contends that raise structure controlled the muck inside
the ore pass until Magma Copper used the ore pass beyond its
capacity and then further damaged the structure with the improper
use of explosives.  As a consequence, the Secretary's unfounded
allegations concerning construction defects of the raise
structure are irrelevant.  The failure of the raise structure is
directly attributable to the damage caused by Magma Copper's poor
mining practices, not Dynatec's installation.  In addition, the
Secretary's allegations regarding the construction of the raise
are not relevant because, as the Secretary argues, the safety
standard is a "performance-oriented" standard.  That is, the
method of achieving compliance is immaterial.  Finally, the
Secretary failed to prove that the raise was inadequate as
constructed.  Dynatec argues that its evidence established that
the blocking and backfill were consistent with good raise
practice.

               b.  Discussion and Analysis

     This case presents unique issues that have never been
considered before.  In a typical case under this safety standard
there is a fall of ground, usually the roof, or conditions are
present that convince an MSHA inspector that the ground will fall
if it is not supported.  In such cases, the issue is whether the
mine operator had in place a ground control system to control the
ground.  In this case, a nearly vertical raise is involved.
There is no evidence that the rock walls of the raise failed or
were ready to fail, rather it appears that there was an internal
failure within the raise structure itself.  Dynatec contends that
because the ground did not fail and was not ready to fail, there
can be no violation.

     I reject the Secretary's argument that the muck within the
ore pass was "ground" and that Dynatec violated the standard
because the raise structure failed to control such ground.  Muck
is ore-bearing rock that has been mined; muck is not ground as
that term is used in the safety standard.  Muck is "rock or ore
broken in the process of mining."  A Dictionary of Mining,
Mineral, and Related Terms, 732 (1968).  The term "ground" in the
safety standard is directed towards the rock that remains in the
earth after an area has been excavated.  Ground is "any specific
part of a mineral deposit, or the rock in which a mineral deposit
occurs."  Id. at 514.  The standard is designed to protect miners
from rock that has not been mined.  I find that broken rock that
is being transported from one place in the mine to another is not
"ground" and is not covered by the plain language of the
standard.  I credit the testimony presented by Dynatec on this
issue.  (See, for example, Tr. 628, 741-42, 951).

     I also find that the Secretary's interpretation is not
entitled to the deference that is usually accorded to the
Secretary's interpretation of her safety standards.  The
legislative history of the Mine Act states that "the Secretary's
interpretations of the law and regulations shall be given weight
by both the Commission and the courts."  S. Rep. No. 181, 95th
Cong., 1st Sess. 49 (1977), reprinted in Senate Subcommittee on
Labor, Committee on Human Resources, 95th Cong., 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of
1977 at 637 (1978).   The Secretary's interpretation "serves a
permissible regulatory function" in that the Secretary has the
authority to protect miners from the hazards presented by mined
ore.  General Electric Co. V EPA, 53 F.3d 1324, 1327 (D.C. Cir
1995)(citations omitted); Buffalo Crushed Stone, Inc., 19 FMSHRC
231, 234 (February 1997).  The Secretary's interpretation,
however, is not "logically consistent with the language of the
regulation."  Id.

     Finally, I find that the Secretary did not provide mine
operators with sufficient notice of the requirements of the
standard.  Safety standards must afford reasonable notice of what
is required.  In "order to afford adequate notice and pass
constitutional muster, a mandatory safety standard cannot be 'so
incomplete, vague, indefinite, or uncertain that [persons] of
common intelligence must necessarily guess at its meaning and
differ as to its application'" Ideal Cement Co., 12 FMSHRC 2409,
2416 (November 1990)(citation omitted).  A standard must "give a
person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly."  Lanham Coal
Co., 13 FMSHRC 1341, 1343 (September 1991).

          When faced with a challenge that a safety standard
     failed to provide adequate notice of prohibited or required
     conduct, the Commission has applied an objective standard,
     i.e., the reasonably prudent person test.  The Commission
     recently summarized this test as "whether a reasonably
     prudent person familiar with the mining industry and the
     protective purposes of the standard would have recognized
     the specific prohibition or requirement of the standard."

Id. (citations omitted).  "The Secretary, as enforcer of the Act,
has the responsibility to state with ascertainable certainty what
is meant by the standard he has promulgated."  Diamond Roofing
Co. V. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976).  In this
instance, I find that a reasonably prudent person would not have
recognized that section 57.3360 applies to muck contained in an
ore pass within a raise.

     It is important to understand that the raise structure
served several important functions.  First, as stated above, it
acted as ground support for the raise.  Second, it functioned as
a transportation system for the ore-bearing rock.  Third, it was
used by Magma Copper to temporarily hold or store the ore-bearing
rock.  Finally, it functioned as a manway.  As discussed below,
the Secretary established that the raise structure was poorly
designed to serve all four of these functions.  That is, many
of the design components were inadequate given the four
functions it was to serve.  The divider wall between the
manway and ore pass was particularly inadequate given the
fact that the ore pass was often full of muck and blasting
was used to remove hangups.  The differential settlement of
the structure allowed the cribbing between the manway and ore
pass to break loose from the birdcages.  Although it is
possible that some of the blocking fell away as the structure
settled and that some areas between the structure and the rock
walls of the raise were not filled with fly rock, these facts
do not establish that the rock walls of the raise were not
being controlled.  The Secretary did not establish that the
ground, rock walls of the raise, posed a hazard to miners,
either at the time the raise was constructed or after the
raise structure settled on or about August 3.

     Magma Copper anticipated that the raise would be subject
to squeezing ground.  The raise structure was designed to
withstand these forces and elements of its design took these
forces into consideration.  Some witnesses contend that, in
fact, the raise structure was not subjected to squeezing
ground and that this fact played a part in the failure of
the raise.  Whether that is true or not, the Secretary did
not establish that the raise structure as installed by
Dynatec failed to adequately support the rock walls of
the raise.  For the reasons set forth above, Order No.
4410467 is VACATED.

          2.  Citation No. 4410466

     This citation alleges, in pertinent part:

          Ground support in the area of the 865 raise was not
          maintained to control the ground in places where miners
          work or travel.  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.
          This violation contributed to the failure of the
          raise on 8/10/93....

               a.  Arguments

     In this citation, the Secretary charges that Dynatec
violated the maintenance requirements of the safety standard.
The Secretary contends that Dynatec's repeated practice of
working on the raise structure after it settled on August 3 to
make repairs that were not related to the structural integrity of
the raise structure constituted a violation of the maintenance
requirements of section 57.3360.  She contends that the raise
structure was in a state of imminent danger after August 3, 1993,
and repairs not related to eliminating the imminent danger should
not have been made.  Dynatec's Spry and Spaulding measured about
eight inches of settlement in the raise structure and believed
that the timber joints had been crushed.  The fact that Dynatec
managers discussed the safety of the raise structure with Magma
Copper managers and suggested that the structure be rebuilt or
substantially modified demonstrates that Dynatec knew that the
raise structure was in danger of collapse.  The Secretary
contends that Dynatec completed the cosmetic repairs as directed
by Magma Copper because Magma Copper wanted to return the raise
to production as quickly as possible.  The Secretary argues that
the cosmetic repairs performed by Dynatec between August 3 and 9
were insufficient to restore the raise to a suitable condition to
be put back into full operation.

     Dynatec makes many of the same arguments here as it did with
respect to Order No. 4410467, above.  After Dynatec repaired the
ore pass, the ore pass performed without incident until it was
used beyond its as-repaired capacity and was subjected to
blasting by Magma Copper, in contradiction of recommendations
made by Dynatec.  In the alternative, it contends that it did not
violate the third sentence of the standard because its employees
did not work in the raise except to make repairs and it is not
properly charged with the alleged inadequacies of the repairs.
Dynatec further maintains that the cribbing and timber in the
divider wall were not used for ground support but were used to
separate the ore pass from the manway.  Finally, it contends that
the Secretary did not establish that the repairs it made failed
to eliminate hazards to persons.  Dynatec believes that the
citation should be vacated.

               b.  Discussion and Analysis

     Although this citation is similar to Order No. 4410467,
discussed above, a separate analysis is required.  This citation
specifically relates to Dynatec's conduct after the raise
structure settled.  This citation concerns the maintenance of the
raise structure after Magma Copper attempted to remove the
sandfill from the ore pass with explosives as opposed to the
construction and use of the raise up until that time.  In
addition, the citation requires an analysis of the requirements
of the third sentence of the safety standard, as well as the
second sentence.  The third sentence requires that damaged,
loosened, or dislodged timber used for ground support be repaired
or replaced if it creates a hazard to persons.  I conclude that
it is appropriate to read the second and third sentences of the
standard together because the citation concerns maintenance of
the raise structure after the settlement.  When read together,
these sentences make clear that a mine operator is not only
required to provide ground support in areas where it is
necessary, but it must repair or replace ground support timber if
it becomes damaged, loosened, or dislodged so that the ground
support system itself does not present a hazard to miners.

     As I stated above, I find that the muck in the ore pass was
not "ground" as that term is used in the safety standard and a
failure of a mine operator to adequately control the muck in a
raise would not constitute a violation of section 57.3360.  In
addition, I find that the Secretary failed to establish that the
rock walls of the raise were not being controlled by the raise
structure after the raise structure settled.  The Secretary's
witnesses make clear that the failure of the raise structure may
well have been precipitated by the dislocation of blocking at one
location.  The dislocation of blocking at one or two locations in
the raise would not necessarily have any significant impact on
the ability of the raise structure to support the rock walls of
the raise itself.  Thus, it was not proven that the raise
structure failed to support or control the rock walls of the
raise.  Due to the nature of the accident, it is not known
whether blocking was dislocated or the extent of any dislocation
as a result of the settlement.  The same is true of the backfill.
There is simply no way to determine whether there were large
voids behind the raise structure or whether the presence of any
voids undermined the raise structure's ability to control the
rock walls of the raise.  The Secretary bears the burden of proof
on this issue.

     Nevertheless, the standard also requires an operator to
repair or replace ground support timber if it becomes damaged,
loosened, or dislodged so that the ground support structure does
not present a hazard to miners.  I find that the Secretary
established a violation.  As discussed above, after the raise
structure settled on or about August 3, the structure was on the
verge of failure.  Any normal event such as loading the raise
with muck had the potential to cause a massive failure within the
structure.  I find that the Secretary established that the
repairs made by Dynatec did not address the structural problems
in the raise structure.

     I reject Dynatec's argument that the standard does not apply
because its employees were only in the raise to perform the
repairs.  Magma Copper made the determination to complete only
limited repairs in the raise structure before it was returned to
production.  Nevertheless, Dynatec had expertise in raise
construction and its managers knew or should have known that the
repairs that were made did not address the structural problems of
the raise.  Dynatec did not advise Magma Copper that returning
the raise to production before the raise structure was
rehabilitated created a significant hazard to miners working in
the area.  Instead, Dynatec informally discussed the raise
structure with Magma Copper managers at a luncheon and the
discussion was framed in terms of longevity of the raise
structure not the significant hazards presented by the structure.
It is important to note that it was the perception of Dynatec
managers that the lead raise manager at Magma Copper, Mr.
Kannegaard, did not believe that settlement of the raise
structure presented a problem unless it settled seven feet or
more.  When Mr. Spaulding told Steve Lautenschlaeger, the mine
manager for Magma Copper, that the raise structure needed
extensive rehabilitation, Mr. Lautenschlaeger responded that he
had spent enough money on the raise.  (Tr. 727; Joint Ex. 147).
Mr. Spaulding did not suggest to Mr. Lautenschlaeger that the
raise was unsafe to use.  (Tr. 727).

     It was incumbent on Dynatec, the raise construction expert,
to take all reasonable steps to ensure that the raise structure
was safe because Magma Copper's managers did not possess the
skill or knowledge to assess the danger.  It is clear that Magma
Copper perceived Dynatec's concerns in economic terms rather than
in safety terms.  Dynatec knew that "extraordinary steps" were
required but it did not take these steps or advise Magma Copper
that these steps were necessary for the safety of miners.  As
stated above, it was foreseeable that the raise would become
loaded with muck within a relatively short period of time and
Dynatec knew that loading the raise would put the structure at
risk for failure.

     It is also important to understand that there was no real
agreement that the raise structure would be rehabilitated in the
near future.  There had been some preliminary discussions that
Dynatec would be asked to pour a sand grout compound between the
structure and the walls of the raise over several weekends at an
undetermined time in the future.  While this repair would have
stabilized the raise structure, there was no agreement between
Dynatec and Magma Copper that this would be done.  Thus, on
August 9 Dynatec did not know how or when more permanent repairs
would be made.

     I do not accept the argument of Dynatec that I should parse
the various components of the raise structure and determine that
the cribbing and timber in the divider wall between the manway
and ore pass were not part of the ground support structure.  The
entire raise structure served the multiple functions described
above.  The component parts of the divider wall played a part in
the ground support structure.

               c.  Significant and Substantial Allegation

     An S&S violation is described in section 104(d)(1) of the
Mine Act as a violation "of such nature as could significantly
and substantially contribute to the cause and effect of a ...
mine safety or health hazard."  A violation is properly
designated S&S "if based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably serious nature.  National Gypsum Co., 3 FMSHRC 822,
825 (April 1981).  In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984), the Commission set out a four-part test for analyzing S&S
issues.  Evaluation of the criteria is made assuming "continued
normal mining operations."  U.S. Steel Mining Co., 6 FMSHRC 1573,
1574 (July 1984).  The question of whether a particular violation
is S&S must be based on the particular facts surrounding the
violation.  Texasgulf, Inc., 10 FMSHRC 498 (April 1988).

     In order to establish that a violation is S&S, the Secretary
must establish:  (1) the underlying violation of the safety
standard; (2) a discrete safety hazard, 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.

     I find that the Secretary established all four elements of
the Commission's S&S test.  There was a violation of the standard
and the violation contributed to a discrete safety hazard.
Under the third element, the Secretary must establish that it is
reasonably likely that the hazard contributed to by the violation
will result in an injury, but is not required to show that it is
more probable than not that an injury will result from the
violation.  U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June
1996).  I find that an injury was reasonably likely given the
facts described above.  The raise structure was inadequate and it
had been seriously compromised.  It was reasonably likely that
without rehabilitating the raise structure, a substantial failure
of the structure would occur resulting in an injury of a
reasonably serious nature.

               d.  Unwarrantable Failure Allegation

     The Commission held that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence.  Emery Mining
Corp., 9 FMSHRC 1997, 2004 (December 1987).  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, 193-94 (February 1991).  The Commission
stated that "a number of factors are relevant in determining
whether a violation is the result of an operator's unwarrantable
failure, such as the extensiveness of the violation, the length
of time that the violative condition has existed, the operator's
efforts to eliminate the violative condition, and whether an
operator has been placed on notice that greater efforts are
necessary for compliance."  Mullins and Sons Coal Co., Inc., 16
FMSHRC 192, 195 (February 1994)(citation omitted).

     Dynatec argues that this violation was not a result of its
unwarrantable failure to comply with the standard because it was
"reasonable for [it] to rely on its extensive mining experience
in examining the 865 raise after Magma had misused and damaged
it."  (Dyn. Br. 67).  Dynatec maintains that "[a]lthough the
repairs were temporary and stopgap in nature, the repairs were
reasonable in that they eliminated the possibility of divider
wall failure, readied the 865 raise for permanent repair, and
made the 865 raise safe for the transfer of ore."  Id. at 68.

     As stated above, the repairs made by Dynatec did not address
the structural and settlement problems in the raise structure.
It knew that the raise structure presented a serious safety
hazard to miners in the raise if the ore pass was loaded or
blasting occurred in the raise.  It failed to warn Magma Copper
managers of the severity of this hazard.  Magma Copper's managers
apparently did not understand the implications of the events of
August 3 and 4 and allowed the raise to be returned to production
following minor repairs.  Dynatec did not take appropriate
actions to ensure that extraordinary steps were taken to
rehabilitate the raise before it was returned to production and
miners were allowed to work in the raise.  I find that Dynatec's
conduct demonstrates a serious lack of reasonable care.
Dynatec's efforts to eliminate the violative condition were
insufficient and it knew that greater efforts were necessary to
ensure the safety of miners under the standard.  The violation
was the result of Dynatec's unwarrantable failure to comply with
the safety standard.

     E.  Alleged Violation of 30 C.F.R.  57.11001

     On May 10, 1994, MSHA inspector Tyrone Goodspeed issued
Order No. 4410468 alleging violations of 30 C.F.R.  57.11001.
The safety standard provides:

          Safe means of access shall be provided and maintained
          to all working places.

     This order alleges, in pertinent part:

          A safe means of access was not provided and maintained
          to working places between the 3700 and 4000 levels in
          the 865 raise during the period 8/4-10/93.  This
          violation contributed to the severity of the accident
          involving the failure of the raise on 8/10/93 which
          resulted in the death of four miners.

          Management engaged in aggravated conduct constituting
          more than ordinary negligence in that:  (1) structural
          conditions in the raise were hazardous; (2) ladders had
          not been secured; (3) timber, blocking, and cribbing
          had shifted; (4) armored cribbing was dislodged and
          damaged in at least two areas between the ore pass
          and manway compartment; and (5) ore and armored
          cribbing pieces had fallen into the manway compartment.

          Miners regularly traveled the manway compartment
          during this period to perform structural repairs and
          for access to other mine levels.  Management allowed
          these safe access hazards to exist and permitted the
          continued use of the manway during this period.

          1.  Arguments

     The Secretary contends that Dynatec allowed its miners to
work and travel in the manway to complete the repairs authorized
by Magma Copper in violation of the safety standard.  It knew
that the raise structure was badly damaged and yet allowed its
miners to work on matters unrelated to the root causes of the
settlement of the structure.  Dynatec failed to provide safe
access for its employees in the raise between August 3 and August
10.

     Dynatec states that the Secretary did not establish that the
conditions set forth in the order made it unsafe to work or
travel in the manway.  Dynatec's evidence established that the
repairs were performed in a manner that provided safe access.
The manway was cleaned of spilled ore prior to any other work
being performed.  Dynatec reinforced the timber along the divider
wall at set 8.  Although the load that had hung up in the ore
pass presented a hazard, there was no imminent danger.  Timbers
were not moving and the load had been substantially reduced.
Dynatec removed the hazard by removing the hangup over the
sandfill on August 4 and removing the sand fill on August 6.  In
addition, Dynatec contends that the other repairs improved the
integrity of the structure.  It also repaired the ladders that
were damaged during the settlement.  Dynatec further argues that
a reasonably prudent person familiar with the mining industry
and the protective purposes of the standard would not
recognize that the cited safety standard prohibits the
abatement of hazardous conditions.

          2.  Discussion and Analysis

     I agree with Dynatec that the Secretary failed to establish
that an imminent danger existed after the raise structure
settled.  First, the term "imminent danger" is a legal concept
that gives rise to certain obligations when an MSHA inspector
issues an order under section 107(a) of the Mine Act.  Second,
imminent danger is defined as a condition in a mine "which could
reasonably be expected to cause death or serious physical harm
before such condition ... can be abated."  I find that the
Secretary failed to establish that an imminent danger existed on
August 3-8, 1993.  I credit the evidence presented by Dynatec in
this regard.

     As stated above, I find that the raise structure was on the
verge of failure after the settlement because, if the raise was
returned to production, a normal event such as the loading of the
ore pass with muck presented a significant risk of failure.  I
find that Dynatec performed the repairs in a safe manner and a
safe means of access was provided and maintained to the working
places within the manway.  For example, cleaning down the manway,
repairing the ladders, and repairing damaged timber did not
present a hazard to Dynatec employees.  Many of the tasks were a
prerequisite to the rehabilitation of the raise structure.

     Dynatec employees continued to use the manway, however,
after the raise was returned to production.  The manway did not
provide safe access to working places after Magma Copper began
dumping muck into the ore pass.  Dynatec's management was aware
of the hazards but did not warn its employees to keep out of the
ore pass.  As the expert in raise construction, Dynatec failed to
adequately warn Magma Copper that the manway did not provide safe
access after August 9 when the raise was returned to production.
On the evening of August 10, Dynatec supervisor William G. Wilson
ordered all Dynatec employees from the manway because he was
concerned about the hangup blasting that Magma Copper employees
were about to perform.  This act saved the lives of Dynatec
employees.  It also illustrates that Dynatec knew of the hazards.
Dynatec knew that the manway did not provide safe access to the
working places in the raise structure after the ore pass became
hung up with muck, especially if blasting was planned.

     Based on the evidence presented in this case, I find that
the Secretary established a violation of the safety standard
during August 9 and 10.  The manway did not provide safe access
to working places once the raise was returned to production.
Dynatec's failure to remove its employees during this period and
provide sufficient warning to Magma Copper constitutes a
violation.  Much of the language in the order describing the
violation relates to the Secretary's contention that Dynatec
violated the standard when it was making the repairs to the raise
structure between August 4 and August 8.  Nevertheless, the order
also covers Dynatec's conduct in permitting the continued use of
the manway after the repairs were made.

          3.  Significant and Substantial Allegation

     I find that the violation was S&S.  As discussed above, the
Secretary established the first two elements of the Commission's
S&S test.  I find that an injury was reasonably likely given the
facts described above.  The raise structure was on the verge of
failure and once the raise was returned to production it was
reasonably likely that part of the raise would fail thereby
killing or seriously injuring any miners in the manway.  As
stated with respect to the previous citation, it was reasonably
likely that without rehabilitating the raise structure, a
substantial failure of the structure would occur resulting in an
injury of a reasonably serious nature.

          4.  Unwarrantable Failure Allegation

     I find that the violation was the result of Dynatec's
unwarrantable failure.  Dynatec's conduct after the hangup
developed demonstrates a serious lack of reasonable care.
Although Dynatec removed its own employees from the manway after
Magma Copper employees began blasting the ore pass on the evening
of August 10, it had allowed its miners to work in the raise
structure earlier that day after the hangup developed.  It also
failed to suitably warn Magma Copper's inexperienced employees
that they were endangering their lives by continuing to work in
the raise structure below the hangup.

     F.  Alleged Violations of 30 C.F.R.  57.3401

     On May 10, 1994, MSHA inspector Tyrone Goodspeed issued six
orders under section 104(d)(1) of the Mine Act alleging
violations of 30 C.F.R.  57.3401.  The safety standard 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.

     The six orders, Nos. 4410469 through 4410474, allege
identical violations.  Each order covers a different shift
between August 6 and August 10.  For example, Order No. 4410469
alleges, in pertinent part:

          Miners were allowed to work in the 865 raise on the
          "B" shift, 8/6/93, even though management failed to
          adequately examine ground conditions in the area
          prior to work commencing, after blasting and as
          ground conditions warranted.  This violation is part
          of a practice of a failure to conduct adequate
          examinations that contributed to the failure of the
          raise on 8/10/93....

          An adequate examination of the ground conditions and
          the raise support structure would have determined that:
          (1) raise timbers were shifting and progressively
          deteriorating; (2) raise timbers were separating
          from posts, dividers, all plates, and cribbing;
          (3) support blocking was sheared and no longer
          functional; (4) sections of armored cribbing were
          dislodged which allowed ore and armored cribbing
          pieces to fall into the manway compartment; (5)
          the raise support structure had been subjected to
          water infiltration and frequent development and
          hangup blasting; (6) non-uniform placement of
          backfilling around the timber framework was
          contributing to framework separation;  and (7)
          swelling or squeezing ground conditions were
          not encountered during raise construction and use
          preventing the raise support structure from
          developing the proper structural integrity.

          Adequate ground condition examinations of the
          raise were warranted to protect miners regularly
          required to work in the area.  The above noted
          conditions were visibly obvious and established
          that the ground support structure was failing
          to maintain its structural integrity.

          1.  Arguments

     The Secretary argues that Dynatec's obligation under this
examination standard is to ensure that adverse ground
conditions do not exist and that the support structure is
achieving its purpose.  She contends that once the raise
structure settled,  the integrity of the joints
and the dividing wall was dependent on the blocking installed
during construction.  As a consequence, Dynatec had the
obligation under this standard to examine the blocking outside
the immediately visible area.  Dynatec failed to examine the area
around the raise structure to see if the blocking was still
performing its function.  Dynatec employees should have cut holes
in the lagging around the manway at strategic locations so that
the blocking could be examined.  The Secretary states that the
orders cover the period after the Spry luncheon because the
evidence establishes that, from at least that date, Dynatec knew
that the raise structure needed to be rebuilt.  She also argues
that there was a reasonably detectable hazard before the failure
of the raise structure.

     The Secretary contends that Dynatec was required to examine
the ground and the structural integrity, blocking, and backfill
of the ground support structure prior to work commencing and
after blasting.  She argues that a reasonably prudent mine
operator would have cut holes in the side lagging to look at the
blocking and joint integrity.

     Dynatec argues that the safety standard is not applicable
because there were no "ground conditions" in the "areas where
work [was] being performed."  (D. Br. 53).  Dynatec was
performing work inside the manway and the lagging around the
manway isolated its employees from the ground conditions that
existed in the excavation.  There was no threat of a ground fall
and, because there was no exposure to ground conditions, there
was no requirement to examine or test the ground.  In any event,
Dynatec employees performed examinations that were sufficient to
determine that the ground support structure was achieving its
purpose.  There was no indication that the raise structure was
under stress from the ground.  A reasonably prudent person would
not interpret the standard to require the removal of the
protective lagging to examine ground outside the raise structure
under such conditions.

     Dynatec maintains that the Secretary's attempt to extend the
safety standard to require an examination of the ground support
structure is unreasonable.  The Secretary was not concerned about
Dynatec's examination of the rock walls of the raise, but with
its examination of the raise structure.  The safety standard does
not require an examination of ground support structures.  In
addition, Dynatec believes that it extensively examined the raise
structure.  Its examinations of the structure established that
the blocking and backfill were still functioning.  It also
examined some of the blocking through cracks in the manway
lagging.  Cutting into the lagging posed a risk that rock or
backfill would fall into the manway.  It could also compromise
the structural integrity of the raise structure.  Dynatec
contends that it "identified every condition identified in the
orders during its extensive examinations of the support
structure."  (D. Br. 57).  Based on these examinations, Dynatec
"correctly determined that extensive, permanent repairs were
necessary before the 865 raise could withstand another hang-up
and blasting."  Id.

          2.  Discussion and Analysis

     I find that the Secretary established a violation.  As
discussed above, the raise structure served several important
functions at the mine.  Because one of those functions was to
support the ground, the raise structure was a ground support
structure.  As I stated above, I find that the entire structure
was a ground support structure and I decline Dynatec's invitation
to hold that certain parts of the structure did not serve a
ground support function.  The safety standard required mine
operators to examine ground conditions in areas where work is
performed.  I find that an examination under this standard
includes an examination of any structures installed to support
the ground.  For example, in a timbered entry in a mine subject
to this safety standard, the examiner would be required to
examine the support timbers as well as the ground itself.
Examining only the ground in an area where supports have been
installed would not mean much.  An examiner would be required to
note that timber posts and cross beams were falling down in an
area, even if the roof looked stable.  An operator could not
argue that a proper examination had been conducted if the
examiner failed to examine roof support.  The posts and cross
beams had been installed to support the roof and they were no
longer performing their function.  In addition, the posts and
beams themselves would pose a hazard to miners working in the
area.

     In this instance, the support structure had settled up to
ten inches and by August 6, Dynatec knew or should have known
that this structure would be in danger of failing if the ore pass
became loaded with muck.  The purpose of examinations under
section 57.3401 is to ensure that the ground and any ground
support does not pose a hazard to miners.  On August 6, Dynatec
knew that the structure was compromised, but it did not know what
members of the structure had failed.  Without performing an
adequate examination of the ground and support structure, Dynatec
would not know whether the rock walls of the raise were
contributing to the problems or whether the manway was otherwise
unsafe for miners.  It examined the inside of the manway prior to
each shift and was able to draw some conclusions, but its
examinations were not complete.

     Ordinarily, an examiner would not be required to cut holes
in the lagging to look at blocking.  In this instance, Dynatec
recognized that "extraordinary steps" were required and it did
not take these steps.  It peered at the blocking through cracks
in the lagging in a few locations where there happened to be
cracks.  It did not develop a systematic approach.  It knew or
should have known that blocking could have been compromised by
the settlement.  It also knew that adequate blocking of the raise
structure was a key component in the design and construction of
the structure.  A failure of blocking in one or more locations at
a critical location could contribute to a failure of the
structure.  It would not have been difficult to cut small holes
in the lagging to examine the blocking.  I am not holding that
Dynatec was required to cut such holes to examine each set of
blocks, but that it was required to develop and implement a plan
for examining blocking at strategic locations.

     Dynatec believes that its examinations showed that the
blocking was intact.  First, it points to the fact that divider
posts had not kicked out along the manway.  I find that such a
fact does not establish the integrity of the blocking.  Blocking
could have fallen away at a particular set and the timbers could
have remained in place until the lateral force of a hangup pushed
it out.  Second, Dynatec points to the fact that further
settlement was not occurring.  The fact that the raise structure
was not settling at that time establishes that, as a general
matter, the structure was stable and that the blocking was
helping to support the structure.  But it does not establish that
sufficient blocking was present to prevent failure once the raise
was returned to use and the raise structure was subject to normal
operating forces, such as the forces that occur during a hangup.

     A complete examination would have indicated whether all of
the seven problems listed in the orders of withdrawal were
present.  Although it appears that the ground was stable, Dynatec
did not really know this for a fact on August 6 because it did
not attempt to examine the ground.  Dynatec failed to make a
complete examination as required by the safety standard.  The
safety standard requires an examination that is appropriate given
the conditions present at the mine.  Examinations that were
adequate before the raise structure settled were no longer
adequate after the structure settled.  As the expert in raise
construction, Dynatec was in position to know that a more
thorough examination was required under the standard.

     Dynatec admits that it knew that the raise structure was
under great stress and argues that, because it already had that
knowledge, a thorough examination was not required.  I disagree.
If a mine operator knows that a particular entry at its mine has
roof problems, it cannot decide that an examination is
unnecessary because it already knows that the roof is bad.  The
examination is designed to pinpoint the problems so that they can
be fixed before miners are exposed to the hazards.  Because
Dynatec did not perform a complete examination of the raise
structure and the ground, the nature and magnitude of the
problems were not entirely known.  The examinations may have been
able to identify areas where blocking had shifted, for example.
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.

     I do not base my holding on the fact that the raise
structure subsequently failed nor am I holding that the failure
established a prima facie case for the Secretary.  See Asarco,
Inc., 14 FMSHRC 941, 946 (June 1992).  Rather, I am holding that
the examinations performed by Dynatec were not comprehensive
enough under the safety standard given the fact that the raise
structure settled eight to ten inches and Dynatec knew that this
settlement posed a significant safety hazard.  Extensive
examinations were required under section 57.3401 to pinpoint the
safety hazards, to help Dynatec decide whether the raise
structure was safe to return to use,  and, if not, to provide
specific information to Magma Copper so that it would be able to
make an informed decision as to the future use of the raise.

          3.  Significant and Substantial Allegation

     I find that the violations were S&S.  The Secretary
established the first two elements of the Commission's S&S test.
I find that an injury was reasonably likely given the facts
described above.  The raise structure was on the verge of failure
and once the raise was returned to production it was reasonably
likely that part of the raise would fail thereby killing or
seriously injuring any miners in the manway.  As stated with
respect to the previous orders, it was reasonably likely that
without rehabilitating the raise structure, a substantial failure
of the structure would occur resulting in an injury of a
reasonably serious nature.  The examinations would have allowed
Dynatec to more accurately identify problems in the raise
structure so that they could be corrected before miners were
exposed to the hazards.  Dynatec and Magma Copper discussed the
problems created by the settlement in terms of the longevity of
the raise.  A complete examination may have been instrumental in
highlighting the safety hazards.

          4.  Unwarrantable Failure Allegation

     I find that the violations were the result of Dynatec's
unwarrantable failure.  The examinations conducted by Dynatec
after its luncheon discussions with Magma Copper demonstrates a
serious lack of reasonable care.  It knew that extensive,
permanent repairs were necessary before the raise could withstand
another hangup and blasting.  It allowed its miners to work in
the manway despite the fact that it had not conducted
examinations to check the integrity of the blocking.  If it had
conducted such examinations and the examinations showed that
blocking was missing or crushed in a number of locations, the
raise may have been closed before the accident occurred.  As
stated above, Magma Copper's miners assigned to the raise were
inexperienced and Magma Copper's manager responsible for the
raise was not fully aware of hazards presented by the settlement.
A thorough examination required by the standard may have alerted
Magma Copper to the hazards presented.

     G.  Alleged Violations of 30 C.F.R.  57.18002(a)

     On May 10, 1994, MSHA inspector Jimmie Jones issued five
orders under section 104(d)(1) of the Mine Act alleging
violations of 30 C.F.R.  57.18002(a).  The safety standard
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 appropriate
          action to correct such conditions.

     The five orders, Nos. 4410475 through 4410479, allege
identical violations.  Each order covers a different shift
between August 6 and August 9.  For example, Order No. 4410475
alleges, in pertinent part:

          Adequate workplace examinations were not conducted in
          the 865 raise on "B" shift, 8/6/93, in that conditions
          which adversely affected the ... safety of the miners
          were not detected or corrected.  This violation is
          part of a practice of a failure to conduct adequate
          examinations that contributed to the failure of the
          raise on 8/10/93....

          An adequate examination of the 865 raise workplaces
          and support structure would have determined that:  (1)
          structural conditions in the raise were hazardous;  (2)
          ladders had not been secured; (3) timber, blocking,
          and cribbing had shifted; (4) armored cribbing was
          dislodged and damaged in at least two areas between
          the ore pass and manway compartment; and (5) ore
          and armored cribbing pieces had fallen into the
          manway compartment.

          During this period miners were regularly required to
          travel to work places in the manway compartment for
          structural repairs and for access to other levels.

          1.  Arguments

     The Secretary states that the purpose for this safety
standard is to ensure that conditions which may adversely affect
safety of miners are detected by a competent miner and are
corrected promptly.  The Secretary labels the examination
obligation as a fiduciary duty the operator has for the safety of
miners.  She contends that Dynatec violated its obligation to
find and correct the hazardous settlement conditions which
adversely affected the safety of miners assigned to work in the
raise.

     The Secretary maintains that because of the unique nature of
the raise structure, Dynatec's examiners were not competent to
examine the raise without the benefit of a "structural
engineering analysis of the raise."  (S. Br. 66).  She argues
that Dynatec's managers continued to allow and direct its
employees to work in the raise despite their knowledge that the
raise structure was severely damaged and the repairs directed by
Magma Copper were ineffective.  The Secretary states that the
Dynatec examiners were "in over their heads."  Id.  "Without the
benefit of a structural engineering analysis, none of Dynatec's
agents had the ability, knowledge, and experience necessary to be
fully qualified to competently examine the unique work places in
the 865 raise for conditions which adversely affected the health
and safety of the miners...."  (S. Br. 66-67).

     Dynatec argues that its examiners were fully competent to
conduct the required examinations.  They had extensive experience
in raise construction.  Although the raise was unusually large,
it incorporated features that were common to other raises.  For
example, birdcages had been used in other raises at the Magma
Mine.  Dynatec also contends that it adequately examined the
working places and the support structure.  The quality of the
examinations exceeded industry practice.  MSHA's Program Policy
Manual states that the safety standard requires a visual
inspection for hazards that are readily apparent.  Dynatec
contends that its examinations exceeded the standard's
requirements.

     The quality of Dynatec's examinations is demonstrated by the
fact that it identified all of the hazardous conditions that
existed in the 865 workplaces.  The fact that the Secretary
disagrees with the conclusions it drew from its examinations is
irrelevant.  Dynatec's conclusion that it was safe to perform the
repair work until Magma Copper employees began blasting in the
ore pass is supported by the evidence.  Dynatec also contends
that a structural engineering analysis was not required.  First,
the safety standard does not require an engineering analysis.
Second, the standard requires an examination of working places
not support structures.

     Finally, Dynatec contends that it did not violate the second
sentence of the standard.  Dynatec employees were in the raise
for one purpose:  to repair the raise.  Muck had been removed
from the manway and the hangup had been removed before August 6.
The missing cribbing had been replaced so additional muck would
not spill into the manway.  In addition, it argues that Magma
Copper had the obligation to permanently repair the raise
structure because it was the owner of the mine.  Dynatec could
not permanently repair the raise structure without Magma Copper's
consent.

          2.  Discussion and Analysis

     The Secretary's approach in her brief is not consistent with
the allegations contained in the orders.  She stresses her
argument that the Dynatec's examiners were not competent to
conduct the required examinations.  She also argues that the
safety standard required Dynatec to conduct a "structural
engineering analysis of the raise."  The orders at issue,
however, alleged that the examinations were not adequate.  The
competence of the examiners and the need for an engineering
analysis are not mentioned in the orders of withdrawal.

     I find that the Secretary failed to establish that Dynatec's
examiners were not "competent persons" as that term is used in
the safety standard.  The examiners had many years of experience.
I agree with Dynatec that, although the raise structure was
unusually large, its features were not that unusual.  The
testimony of Messrs. Spry and Spaulding establish that Dynatec's
examiners were competent persons under section 57.18002(a).  In
FMC Wyoming Corp., 11 FMSHRC 1622, 1629 (September 1989), the
Commission held that a competent person within the meaning of
sections 57.18002(a) and 57.2 is "a person capable of recognizing
hazards that are known by the operator to be present in a work
area or the presence of which is predictable in view of a
reasonably prudent person familiar with the mining industry."
Dynatec's examiners were capable of recognizing hazards that were
presented by the raise after it had settled.

     I also find that the safety standard did not require Dynatec
to conduct a structural engineering analysis of the raise.  Such
an analysis is not within the scope of the examinations required
by the standard.  That part of the Secretary's Program Policy
Manual that discusses this standard states that the "word
'examine,' as used in the standard, means a visual inspection for
hazards that are readily apparent."  As stated above in my
discussion of the violations of section 57.3401, the requirements
of examination standards are not fixed.  The examinations
required before the raise structure settled would be less
rigorous than examinations required after the settlement.
Nevertheless, the standard does not require a structural
engineering analysis under any circumstance.  The Secretary's
interpretation of section 57.18002(a) to require such an analysis
is beyond the plain meaning of the standard and the Secretary's
own written interpretation.  I find that the Secretary's
interpretation is unreasonable and that it is not entitled to
deference.

     Notwithstanding the above, I find that the Secretary
established that Dynatec failed to conduct adequate examinations
of the raise structure.  Under the facts of this case, adequate
examinations conducted under this standard would have revealed
that the raise structure was in danger of falling if the ore pass
was loaded with muck.  Although Dynatec conducted examinations,
they were not adequate to pinpoint the problems in the raise
structure so that the problems could be corrected before miners
were exposed to the hazards.

     In this particular instance, the examinations under this
standard would have been the same as the examinations required
under section 57.3401.  The five enumerated items contained in
the orders issued under section 57.18002(a) are included in the
seven items listed in the orders issued under section 57.3401.
An adequate examination under either standard would have revealed
the same hazards and the scope of the examinations would have
been the same.  For example, after the raise structure settled,
Dynatec was required to examine blocking for the raise structure
under section 57.18002(a) as well as under section 57.3401 to
determine whether such blocking was intact and performing its
function of keeping the raise structure together.  Missing or
dislodged blocking is a condition which would adversely affect
the safety of miners.  As under section 57.3401, the present
standard required Dynatec to examine at least a representative
sample of the blocking at strategic locations.

     The only enumerated item in the orders issued under section
57.18002(a) that is not specifically mentioned in the previous
orders is item number two concerning the condition of the ladders
in the manway.  I find that Dynatec had noted the condition of
the ladders and was in the process of repairing them at the time
of the accident.  (See for example Joint Exs. 112 and 126).  In
the orders issued under section 57.3401, I found that the entire
raise structure was required to be examined under that section
because it functioned as a ground support structure.  Thus, an
examination of the ladders was required under section 57.3401,
and the orders issued under that standard included allegations
involving the failure to examine the ladders.

     The orders issued under section 57.18002(a) cover the same
shifts as the orders issued under section 57.1403, except that no
section 57.18002(a) order was issued for the "B" shift on August
10.  Given my construction of the requirements of these standards
and the orders issued thereunder, I find that the orders issued
under section 57.18002(a) are duplicative.  Citations are not
duplicative as long as the standards involved impose separate and
distinct duties on an operator.  Cyprus Tonopah Mining Corp., 15
FMSHRC 367, 378 (March 1993).  As applied in this case, I find
that the two standards imposed identical duties on Dynatec.  An
adequate examination under one standard would have revealed the
same unsafe conditions as an adequate examination under the other
standard.  The examination duties were the same.  The Commission
has recognized that standards may be duplicative as applied to
particular facts at a mine.  Western Fuels-Utah, Inc., 19 FMSHRC
994, 1004-04 (June 1997).  I am not holding that these two
standards would always duplicate each other but that under the
facts of this case, the duty to examine was the same.

     Accordingly, the five orders issued under section
57.18002(a) are VACATED.  If I had found that the six orders
issued under section 57.1403 were invalid, I would affirm the
five orders issued under section 57.18002(a) and hold that the
orders were S&S and the result of Dynatec's unwarrantable
failure.  Because the safety hazards were the same and the
required examinations were the same, my analysis would be the
same under either standard.

     H.  Dynatec's Responsibility for Conditions in the Raise

     Dynatec contends that it was inappropriately cited for Magma
Copper's conduct.  Dynatec maintains that it did not own or
control the raise and, as a consequence, it cannot be held
responsible for the failure to maintain and examine the raise
structure.  It argues that only Magma Copper had the authority to
determine what repairs were made and whether the raise would be
returned to service before the raise structure was rehabilitated.
I agree that the final authority rested with Magma Copper, but
Dynatec was the expert in raise construction and it had the
obligation to impress upon Magma Copper the need to address the
structural problems in the raise structure before the ore pass
was returned to production.  Dynatec made suggestions at the
luncheon for Mr. Spry, but it did not advise Magma Copper how
grave the situation was.  As Mr. Folinsbee stated, it was
"obvious" that "extraordinary steps should have been taken at
that time."  (Tr. 981)  Dynatec did not take these extraordinary
steps, which were particularly necessary because Mr. Kannegaard
apparently did not understand the inherent danger.  In settling
its cases, BHP Copper paid civil penalties of $800,000 for 46
citations and orders that were issued by MSHA following the
accident.  The four safety standards cited in the present case
were included in the case against BHP Copper.  I find that the
Secretary did not abuse her discretion when she cited both Magma
Copper and Dynatec.

     III. APPROPRIATE CIVIL PENALTIES

     Section 110(i) of the Mine Act sets forth six criteria to be
considered in determining appropriate civil penalties.  The
parties stipulated that "Dynatec has a favorable history of
previous violations."  (Stip. No. 11 submitted 2/10/98) .  It
appears that in the two years preceding the accident, Dynatec had
a history of 13 violations throughout the country.  (Joint Ex.
150).  Dynatec is a mid-sized independent contractor that worked
about 61,960 man-hours at all mines in the year preceding the
civil penalty assessment.  (Stip. No. 12).   Dynatec exercised
good faith in abating the violative conditions by participating
in the accident investigation and in attempting to determine how
to prevent a re-occurrence of the violations.  (Stip. No. 9).   I
find that the penalties assessed in this decision will have no
effect on Dynatec's ability to continue in business.  (Joint Ex.
150; Stip. No. 12).   Each citation and order that was affirmed
was serious and caused by Dynatec's high negligence.

     Dynatec violated section 57.3360 as set forth in Citation
No. 4410466.  The Secretary proposed a penalty of $50,000 under
30 C.F.R.  100.5.  I assess a penalty of $40,000 for this
violation.  As stated above, I believe that Dynatec was highly
negligent for not taking all reasonable steps to ensure that the
raise structure was safe before it was returned to production.
Nevertheless, I find its negligence was not as great as that
asserted by the Secretary.  Magma Copper was resistant to
Dynatec's suggestions for improving the safety of the raise and
Magma Copper's managers informally stated that hangups would not
be blasted except as a last resort. Dynatec believed that a
permanent rehabilitation of the raise structure would commence
later in August.  As stated above, it was unreasonable for
Dynatec to rely on the informal assurances of Magma Copper
managers because they did not have the knowledge or skill to
assess the danger and it should have been reasonably foreseeable
that Magma Copper would continue to fill the ore pass and blast
hangups.  I have taken these facts into consideration in
assessing the penalty.

     Dynatec violated section 57.1101 as set forth in Order No.
4410468.  The Secretary proposed a penalty of $50,000 under 30
C.F.R.  100.5.  I assess a penalty of $20,000 for this
violation.  I rejected the Secretary's contention that the raise
structure presented an imminent danger after it settled on or
about August 3.  I found that it was safe for Dynatec to make the
repairs set forth in Kannegaard's memorandum of August 5.  (Joint
Ex. 115).  I found that safe access was not provided to the raise
structure after it was returned to production on August 9.
Dynatec removed its employees from the raise structure once it
became clear that Magma Copper was blasting in the ore pass.  As
a consequence, I significantly narrowed the scope of the order.
These factors reduced the gravity of the violation and Dynatec's
negligence.  I have taken these facts into consideration in
assessing the penalty.

     Dynatec violated section 57.3401 as set forth in order Nos.
4410469 through 4410474.  The Secretary proposed a penalty of
$50,000 for each of the six violations under 30 C.F.R.
 100.5.  I assess a penalty of $5,000 for each violation.
Dynatec conducted examinations of the conditions inside the
manway.  Based on these examinations it reached conclusions as to
what needed to be done to rehabilitate the raise structure.  It
did not believe that the rock walls of the raise were
contributing to the stress placed on the raise structure.  As
stated above, these examinations were not adequate to identify
with certainty the specific hazards presented by the raise
structure.  These factors reduce the gravity of the violations
and Dynatec's negligence.

                           IV.  ORDER

     Based on the criteria in section 110(i) of the Mine Act, 30
U.S.C.  820(i), I assess the following civil penalties:

     Citation/Order  No.        30 C.F.R.           Penalty

      4410466                   57.3360           $40,000.00
      4410467                   57.3360              Vacated
      4410468                   57.11001           20,000.00
      4410469                   57.3410             5,000.00
      4410470                   57.3410             5,000.00
      4410471                   57.3410             5,000.00
      4410472                   57.3410             5,000.00
      4410473                   57.3410             5,000.00
      4410474                   57.3410             5,000.00
      4410475                   57.18002(a)          Vacated
      4410476                   57.18002(a)          Vacated
      4410477                   57.18002(a)          Vacated
      4410478                   57.18002(a)          Vacated
      4410479                   57.18002(a)          Vacated

                               Total Penalty      $90,000.00

     Accordingly, the citation and orders listed above are
hereby VACATED or AFFIRMED, as set forth above, and Dynatec
Mining Corporation is ORDERED TO PAY the Secretary of Labor
the sum of $90,000.00 within 40 days of the date of this
decision.

                              Richard W. Manning
                              Administrative Law Judge

Distribution:

Edward H. Fitch, IV, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203-1954 (Certified Mail)

C. Gregory Ruffennach, Esq., 450 East 3rd Avenue, Durango, CO
81301 (Certified Mail)

/RWM

     [1]  A "footwall" is that part of the country rock which is
below the ore deposit.

     [2]  For example, the Secretary presented evidence that
Dynatec should have used hardwood instead of Douglas Fir for
wedges when blocking the raise or that it should have made sure
that there were no open spaces between the lagging of the raise
structure and the walls of the raise.  The Secretary's safety
standards do not contain such requirements and are not standard
practice at western metal mines.  Moreover, such issues are
largely irrelevant to the issues raised by the citations and
orders.

     [3]  The center posts are the vertical posts that
frame the center of the raise structure and are often referred
to as the divider posts.

     [4]  Magma Copper indicated that they would allow Dynatec
to place a sand grout backfill between the raise structure and
the rock walls of the raise to stabilize the structure.  This
work was to be done on the weekends at some undetermined time in
the future and, if completed, would have allowed full use of the
raise without further settlement or failure.

     [5]  Mr. Spaulding testified that Mr. Kannegaard did not
consider the settlement of eight to ten inches to be significant.
Kannegaard apparently told Spaulding that the settlement was not
"too bad" and that the raise structure could settle by a full
set, seven and one-half feet, before any problems would arise.
(Tr. 720, 767; Joint Ex. 112, 8/3).