.
BHP COPPER, INC.
August 25, 1999
WEST 98-189-RM

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                         August 25, 1999

BHP COPPER, INC.,              : CONTEST PROCEEDING
               Contestant      :
                               : Docket No. WEST 98-189-RM
          v.                   : Citation No. 7922328; 3/13/98
                               :
SECRETARY OF LABOR,            : San Manuel Mine
  MINE SAFETY AND HEALTH       : ID No. 02-00151
  ADMINISTRATION (MSHA),       :
               Respondent      :
                               :
                               :
SECRETARY OF LABOR,            : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       : Docket No. WEST 98-415-M
               Petitioner      : A.C. No. 02-00151-05646
                               :
          v.                   : San Manuel Mine
                               :
BHP COPPER, INC.,              :
               Respondent      :

                        DECISION ON REMAND

Before: Judge Manning

     By decision dated June 23, 1998, I granted BHP Copper's
motion  for  summary  decision in WEST 98-189-RM and vacated
Citation No. 7922328.  20 FMSHRC 634. The Commission, on its 
own motion, directed review of my decision. On July 30, 1999,
the Commission reversed my decision and remanded that case to  
me to impose  an  appropriate penalty.  In its decision, the 
Commission determined that BHP Copper violated section 103(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 
 813(a) (the "Act"), as alleged in the citation.

     I was assigned the civil penalty case that contains the
contested citation on October  23,  1998,  Docket  No.  WEST 
98-415-M. In that case, the Secretary  proposed a penalty of 
$60 for  Citation  No.  7922328.   The  civil  penalty  case  
also contains Citation No. 7922329.  On  March  22,  1999, I 
approved the parties' proposed settlement  of  Citation  No. 
7922329  in  WEST 98-415-M. In the  settlement,  BHP  Copper 
agreed to pay a civil penalty of $29,000 for  that  citation 
and to comply with the terms of an agreement executed by the 
parties that was attached to  the  motion  for  approval  of 
settlement. Consequently, the only issue before me on remand 
in these cases is the assessment  of  an  appropriate  civil 
penalty for Citation No. 7922328.

     By order dated August 3, 1999, I consolidated the above
proceedings  and  stated that I would assess the $60 penalty
proposed by the Secretary unless BHP Copper provided reasons, 
on or before  August 20, 1999, why  the  penalty  should  be 
different, taking into consideration the penalty criteria in 
section  110(i) of the Act. BHP Copper responded to my order 
by stating that its anticipates  appealing  the Commission's
ruling to the U.S. Court of  Appeals  and, to  preserve  its  
right to appeal, it objects to the assessment  of a  penalty 
for Citation No. 7922328.

     Under the Act, a penalty must be assessed  for any 
violation of the Act or the Secretary's  safety  and health 
standards. Consequently, I assess a penalty  based  on the  
information contained in the citation  and  the Secretary's 
petition for assessment of penalty filed with the Commission. 
The Secretary specially assessed the citation under 30 C.F.R. 
 100.5.

     1.  History of Previous Violations

     The Secretary's petition for penalty states that the San
     Manuel Mine was issued 158 citations during the 24 months
     preceding March 13, 1998, during 377 inspection days.

     2.  Size of the Mine Operator

     Both  BHP  Copper  and  the  San  Manuel Mine are large
     operations.

     3.  Negligence of the Mine Operator

     Inspector Richard Laufenberg determined that BHP Copper's
     negligence was high.

     4.  Effect of Penalty to Continue in Business

     The penalty proposed by the Secretary will not have any
     effect on BHP Copper's ability to continue in business.

     5.  Gravity of the Violation

     Inspector Laufenberg determined that the violation was not
     serious because there was no likelihood of an illness or
     injury as a result of the violation; the violation would 
     not be  expected  to  result  in  any lost  workdays; and 
     the violation was not of a significant and substantial 
     nature.

     6.  Good Faith Abatement

     The citation shows that BHP Copper abated the citation 
     by providing the address and phone number of Mr. Ronald 
     Byrd within 30 minutes after the citation  was issued.
     The Secretary's  narrative  findings  for  a special  
     assessment states that the violation was abated within a 
     reasonable period of time.

     7.  Assessment of an Appropriate Penalty

     In assessing a penalty, I take into consideration the
     information of record for the penalty criteria as set 
     forth above.  I find  that  the  Secretary's  proposed  
     penalty is appropriate  under  the  penalty  criteria.  
     Accordingly, I assess  a  penalty  of  $60  for BHP 
     Copper's  violation  of section  103(a)  of the Act as 
     set  forth  in  Citation  No. 7922328.

      ORDER

     Citation No. 7922328 is AFFIRMED  and BHP Copper, Inc., 
is ORDERED TO PAY the Secretary of Labor the sum of $60.00
within 40 days of the date of this decision.

                               Richard W. Manning
                               Administrative Law Judge
                               

Distribution:

Mark M. Savit, Esq., 
Patton Boggs,
2550 M  Street, NW, 
Washington,  DC 20037-1350  
(Certified Mail)

Mark R. Malecki, Esq., 
Office of the Solicitor,  
U.S. Department of Labor,   
4015 Wilson Boulevard,
Arlington, VA 22203-1954
(Certified Mail)

RWM