Asarco, Incorporated

Plain-English summary

Asarco operated the Leadville Unit underground metal mine in Colorado. A miner was injured when loose rock fell from a stope face after the miner began drilling, and MSHA cited Asarco under the ground-control standard requiring miners and supervisors to examine and secure loose ground. The Commission majority held that the Mine Act makes an operator liable for a violation committed by an employee even when the operator was not negligent, while negligence remains relevant to the penalty. The Commission affirmed the violation and the ALJ's $25 penalty, while Chairman Ford dissented and would have accepted an unforeseeable employee-misconduct defense.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.3-22
• Outcome: The Commission affirmed the violation and the $25 civil penalty.
• Key point: Under the Mine Act, an operator may be liable without fault for an employee's violation of a mandatory safety standard.

Full text (FMSHRC public release)

CCASE:
MSHA V. ASARCO
DDATE:
19861110
TTEXT:

             FMSHRC-WDC
           November 10, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

 v.              Docket No. WEST 84-48-M

ASARCO, INCORPORATED-NORTHWESTERN
MINING DEPARTMENT

BEFORE Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

             DECISION

BY: Backley, Doyle, Lastowka and Nelson, Commissioners

This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)
(the "Mine Act"). The issue is whether a miner's violation of
30 C.F.R. $ 57.3-22 (1983), a metal-nonmetal underground safety
standard regulating ground control, was properly attributed to
the mine operator, Asarco, Inc. ("Asarco"). 1/ The administrative
law judge found that Asarco violated the standard and assessed a
civil penalty of $25. 7 FMSHRC 1714 (October 1985)(ALJ). For the
reasons that follow, we affirm.

1/ 30 C.F.R. $ 57.3-22 (1983) provides:

         Mandatory. Miners shall examine and test the
back, face, and rib of their working places at the
beginning of each shift and frequently thereafter.
Supervisors shall examine the ground conditions during
daily visits to insure that proper testing and ground
control practices are being followed. Loose ground shall
be taken down or adequately supported before any other work

Page 2

is done. Ground conditions along haulageways and travelways
shall be examined periodically and scaled or supported as
necessary.

Following the Secretary of Labor's revision of the metal-nonmetal
standards in January 1985, this standard is now found unchanged at
30 C.F.R. $ 57.3022 (1985).

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Asarco's Leadville Unit Mine, an underground metal mine located
in Lake County, Colorado, produces lead and zinc concentrates. On
September 28, 1983, an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") began a two-day inspection
of the mine. The inspector, who was accompanied by Asarco's safety
engineer, observed miners Alan Lysne and George Naranjo working in
stope 15-25-300. (Stopes are excavated areas from which ore is mined
in a series of steps.) The inspector determined that the ribs and back
of the stope were loose and dangerous. The inspector suggested to the
safety engineer that the stope be made safe by barring down 2/ the
loose rock and by matting 3/ the area, prior to any further work at
the face. The safety engineer instructed the miners to bar down the
loose rock and to make the area safe. Neither the inspector nor the
safety engineer specifically mentioned barring down loose rock at the
face of the stope because at that time the face was covered by muck
(i.e., stone and dirt) and consequently was not visible.

After Lysne and Naranjo received their instructions they
proceeded to institute ground control measures. They barred down
some loose rock and installed mats in areas of the stope away from
the face.

Continuing his inspection on the following day, the inspector

saw Lysne being carried from the mine on a stretcher. Lysne had been
drilling in stope 15-25-300 when rock at the face fell, breaking his
foot. The inspector, along with the safety director and the shift
foreman. went immediately to the accident scene.

Upon arriving at the stope, the inspector found that although
the back of the stope had been secured properly, the face area was
unsafe because of the amount of loose rock present. In order to
secure the area, the shift foreman proceeded to bar down the stope.
The barring-down procedure took approximately thirty minutes and
yielded over one ton of loose rock.

The inspector concluded that vibrations from Lysne's drill
caused the loose rock to fall from the face. The inspector believed
that the accident would not have occurred if the loose rock in the
stope had been barred down as ordered the previous day. Consequently,
the inspector issued a citation to Asarco alleging a violation of
30 C.F.R. $ 57.3-22.

Following an evidentiary hearing the judge concluded that the
standard was violated and that Asarco was liable for the violation.
The judge held that the face where Lysne was working was plainly

Page 4

unstable,

2/ "Barring down" is defined as: "removing, with a bar, loose rock
from the sides and roof of mine workings ... prying off loose rock
after blasting, to prevent danger of fall." Bureau of Mines,
U.S. Department of Interior, A Dictionary of Mining, Mineral, and
Related Terms 83 (1968).

3/ A "mat" is a piece of sheet steel that is used to hold loose
ground or to keep ground from getting loose.

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that Lysne did not "examine and test" the face "frequently" as
required by the standard, and that Lysne ignored the standard's
command that "loose rock shall be taken down or adequately supported
before any other work is done." 7 FMSHRC at 1716. Stating that "an
operator is liable without fault for violations committed by its
employees," the judge concluded that Lysne's "omissions must be
imputed to Asarco under the strict liability doctrine inherent in the
[Mine] Act." 7 FMSHRC at 1716, 1717 (footnote omitted).

In assessing a civil penalty for the violation, the judge made

findings regarding all of the statutory penalty criteria in section
110(i) of the Mine Act, 30 U.S.C. $ 820(i), but focused his attention
primarily upon the criterion of negligence. In his brief to the
judge, the Secretary of Labor ("Secretary") stated that "the
effectiveness of Asarco's supervision and training is not in issue"
and the judge agreed. 7 FMSHRC at 1719. The judge found that barring
down loose ground was "an ordinary and almost inevitable phase of the
mining cycle" at the mine, and that in this regard Asarco's training
and supervision of its miners, particularly of Lysne, were "adequate
under all the circumstances." 7 FMSHRC at 1717. The judge noted that
Lysne's supervisors had been at the stope on the day prior to the
accident and had instructed Lysne specifically to "give his first
attention to ground control the next day." 7 FMSHRC at 1718. The
judge found Lysne's decision to begin drilling the unstable face
"unforeseeable and idiosyncratic." The judge found no evidence of
"supervisory dereliction" on Asarco's part and concluded that Asarco
was not negligent. 7 FMSHRC at 1718. The judge stated that the other
penalty assessment criteria were "overshadowed by the negligence
factor" and he assessed a civil penalty of only $25.

On review there is no dispute that Lysne's conduct violated
the standard. Asarco contends, however, that under the Mine Act it
cannot be held liable for a violation of a mandatory standard when
the standard places responsibility for compliance upon the miner.
Asarco also contends that it cannot be held liable for a violation
because it has taken all practicable measures to prevent the miner
from violating the standard. In effect, Asarco is asking the
Commission to re-examine the principle that under the Mine Act an
operator is liable, without regard to fault, for violations of the
Act committed by its employees. See Southern Ohio Coal Co., 4 FMSHRC
1459, 1462 (August 1982).

We have examined the principle of liability without fault in the

light of Asarco's arguments, the language and legislative history of
the Mine Act, and relevant Commission and court precedent. For the

Page 6

reasons set forth below, we reaffirm that under the Mine Act an
operator may be held liable for a violation without regard to fault
and, accordingly, we conclude that the judge did not err in holding
Asarco liable for the violation of 30 C.F.R. $ 57.3-22.

The general principle that an operator is liable for the
violations of the Act committed by its employees has been stated
frequently. Sewell Coal Co. v. FMSHRC 686 F.2d 1066, 1071 (4th Cir.
1982); Allied

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Products Co. v. FMSHRC, 666 F.2d 890, 893 (5th Cir. 1982); Southern
Ohio Coal Co., 4 FMSHRC 1459, 1462 (August 1982); American Materials
Corp., 4 FMSHRC 415, 419 n. 8 (March 1982); Kerr-McGee Corp., 3 FMSHRC
2496, 2799 (November 1981); El Paso Rock Quarries, Inc., 3 FMSHRC 35,
38-39 (January 1981). Cf. Ace Drilling Coal Co., Inc., 2 FMSHRC
790-91 (April 1980), aff'd without opinion, 642 F.2d 440 (3rd Cir.
1981)(construing 1969 Coal Act).

 Asarco argues, however, that each of these cases can be

distinguished because of the peculiar facts in this case and the
fact that the mandatory standard at issue here expressly requires
compliance by the miner himself. Citing section 104(a) of the Mine
Act, 30 U.S.C. $ 814(a), Asarco asserts that an operator can be cited
for a violation only when an MSHA inspector believes that "an operator
has violated [the] Act or any mandatory health or safety standard."
(Emphasis added). Asarco notes that section 104(a) is patterned after
section 104(b) of the Federal Coal Mine Health 'and Safety Act of
1969, 30 U.S.C. $ 801.et seq. (1976)(amended 1977)(the 'Coal Act"),
and that section 104(b) read as follows: "[I]f, upon any inspection
of a coal mine, an authorized representative of the Secretary finds
there has been a violation of any mandatory health or safety standard
... he shall issue a notice of violation to the operator." 30 U.S.C.
$ 814(b) (1976). Asarco contends that by changing section 104 to
require the inspector to issue a citation upon belief that the
operator has violated the Act or a mandatory health or safety
standard, Congress intended that operators and miners each be
responsible for compliance and that an operator be cited only for
its own violations. We do not find this argument persuasive.

Section 104(a) sets forth the duties of mine inspectors in

enforcing the Act. It does not define the scope of the operator's
liability. The liability of an operator is governed by section
110(a), 30 U.S.C. $ 820(a), which states: "The operator of a ...
mine in which a violation occurs of a mandatory health or safety
standard ... shall be assessed a civil penalty...." (Emphasis added).
The occurrence of the violation is the predicate for the operator's
liability.

Further, section 110(a) of the Mine Act is comparable to
section 109(a)(1) of the Coal Act, 30 U.S.C. $ 119(a)(1) (1976).
("The operator of a coal mine in which a violation occurs of a
mandatory health or safety standard or who violates any other
provision of this Act ... shall be assessed a civil penalty....")
The legislative history of the Coal Act indicates that section
109(a)(1) imposed on the operator liability without fault for

Page 8

violations of the standards or the statute. In relevant part, the
legislative history states:

         The Senate bill provided that, in determining
 the amount of the civil penalty only, the Secretary
 should consider, among other things, whether the
 operator was at fault. The House amendment did

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not contain this provision. Since the conference
agreement provides liability for violation of the
standards against the operator without regard to
fault, the conference substitute also provides that
the Secretary shall apply the more appropriate
negligence test, in determining the amount of the
penalty, recognizing that the operator has a high
degree of care to insure the health and safety of
persons in the mine.

Conf. Rep. No. 761, 91st Cong., 1st Sess. 81 (1969), reprinted in
Senate Subcommittee on Labor, Committee on Labor and Public Welfare,
94th Cong., 1st Sess., Legislative History of the Federal Coal Mine
Health and Safety Act of 1969, Part I at 1515 (1975). See also Sewell
Coal Co., 686 F.2d 1066, 1071 (4th Cir. 1982); Ace Drilling Coal Co.,
Inc., 2 FMSHRC at 791; United States Steel Corp., 1 FMSHRC 1306, 1307
(September 1979); Peabody Coal Co., l FMSHRC 1494, 1495 (October
1979); Valley Camp Coal Co., 1 IBMA 196, 200-01 (1972). Neither the
Mine Act nor its legislative history reveals any indication that
Congress sought to disturb the scheme of operator liability without
fault as it existed under the Coal Act. S. Rep. 181, 95th Cong.
1st Sess. at 18 (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 606
(1978). This Commission and several courts of appeal have interpreted
the Mine Act as being consistent with the Coal Act on this issue of
operator liability without fault. See Sewell Coal Co., 686 F.2d at
1071; Allied Products Co., 666 F.2d at 893; A.H. Smith Stone Co.,
5 FMSHRC 13, 15 (January 1977); Southern Ohio Coal Co , 4 FMSHRC
at 1462; American Materials Corp., 4 FMSHRC at 419 n. 8; Kerr-McGee
Corp., 3 FMSHRC at 2499; El Paso Rock Quarries, Inc., 3 FMSHRC at
38-39. We find no basis for distinguishing the present case. As the
court in Allied Products stated: "If the Act or its regulations are
violated, it is irrelevant whose act precipitated the violation ...;
the operator is liable." 666 F.2d at 894.

As the judge recognized, the operator's fault or lack thereof,

rather than being a determinant of liability, is a factor to be
considered in assessing a civil penalty. Sewell Coal Co., 686 F.2d
at 1071; Southern Ohio Coal Co., 4 FMSHRC at 1464; Kerr-McGee Corp.,
3 FMSHRC at 2499; El Paso Rock Quarries, 3 FMSHRC at 38-39. Here,
when fixing the penalty the judge gave appropriate weight to Asarco's
lack of fault in considering the negligence criterion. 4/

4/ Asarco also argues that imputing the negligence of Lysne to it

Page 10

for purposes of the liability violates the equal protection clause of
the Fifth Amendment to the United States Constitution. Asarco raises
this argument for the first time in its brief on review. Commission
Procedural Rule 70(f) states: "If a petition is granted, review
shall be limited to the questions raised by the petition." 29 C.F.R.
$ 2700.70(f). See also section 113(d)(2)(A)(iii) of the Act,
30 U.S.C. $ 823(d)(2)(A)(iii). Because the constitutional question
was raised improperly, we decline to address it.

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Accordingly, the decision of the administrative law judge
is affirmed.

              Richard V. Backley, Commissioner


              Joyce A. Doyle, Commissioner


              James A. Lastowka, Commissioner


              L. Clair Nelson, Commissioner

Chairman Ford dissenting:

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Since the primary purpose of the Mine Act is to prevent
fatalities, disabling injuries, and other injuries and illnesses
among the Nation's miners, 1/ it is appropriate to weigh the
disposition of every contested citation in light of this fundamental
public policy.

From its inception the Commission has properly focused upon

this statutory policy. Here, this policy is better served by a
broader consideration of operator safety practices which effectuate
this policy than by the majority's reliance on the statutory language
of section 110(a) of the 1977 Mine Act and a single legislative
reference to the 1969 Coal Act as precluding such consideration.
Therefore, I would respectfully suggest that perhaps the Act and case
law may not be as constrained as found by the majority with regard to
Asarco's defense of "unforeseeable and idiosyncratic employee
misconduct."

The defense raised by Asarco has been uniformly recognized as
legitimate by OSHRC 2/ and by OSHA appeals bodies under state plans 3/
and has been variously described as "unforeseen employee misconduct,

1/ Section 2(c) entitled "Findings and Purpose" provides:

         There is an urgent need to provide more effective
 means and measures for improving the working conditions
 and practices in the Nation's coal or other mines in order
 to prevent death and serious physical harm, and in order to
 prevent occupational diseases originating in such mines;

2/ Standard Glass Co., 1 OSHC 1045 (1972); Jensen Constr. Co., 7 OSHC
1477 (1979). The OSHA Act of 1970, 29 U.S.C. section 651 et seq.,
does not expressly authorize the unforeseeable employee misconduct
defense. The federal circuit courts have, however, uniformly adopted
the defense on sound policy and legal grounds. As the Ninth Circuit
observed in Brennan v. OSHRC, 511 F.2d 1139, 1145 (1975):

Fundamental fairness would require that one charged with and
penalized for violation be shown to have caused, or at least to
have knowingly acquiesced in, that violation. Under our legal
system, to date at least, no man is held accountable, or subject to
fine, for the totally independent act of another.

Accord: Penn Power & Light Co. v. OSHRC 737 F.2d 350 (3d Cir. 1984);
Daniel Int'l Corp. v. OSHRC 683 F.2d 361 (11th Cir. 1982); National
Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Cf.

Page 13

United States v. Park. -21 U.S. 658 (1975)(analogous defense to
criminal indictment implied under Federal Food, Drug and Cosmetic
Act).

3/ E.g., Davey Tree Surgery Co. v. Occupat. S&H App. Bd., 167 Cal.
App. 3d 1232, 213 Cal. Rptr. 806 (1985).

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"employee independent act," "employee negligence," and the like. 4/
In finding for or against the employer when such defense is raised,
the administrative law judges and appeals bodies have held the
employer's evidence to a strict test. This test concentrates on the
adequacy of the employer's general safety training program, the
adequacy of the subject employee's specific job assignment safety
training, the adequacy of the level of supervisory control, the
employer's system of discipline and sanctions imposed on employees
who contravene the employer's safety rules, the consistency in
applying those sanctions, and the employee's knowledge that he or
she has deliberately and knowingly contravened the employer's safety
requirements. 5/ Where the employee has been

4/ The Fifth Circuit's conclusionary rejection of this operator
defense in Allied Products v. FMSHRC, 666 F.2d 890 (1982) fails
to adequately consider the identity of enforcement and policy
similarities between OSHA and the Mine Act. Both statutes require
literal employer compliance with mandatory safety and health
standards. Both statutes place primary emphasis upon pre-inspection
compliance rather than upon post-accident sanctions as the means of
achieving hazard free working conditions. Significant!y, both
statutes impose compliance responsibilities upon employees. Compare
section 5(b) of OSHA with section 2(e) of the Mine Act. In light of
these parallelisms, no persuasive legal or policy reason exists for
denying mine operators the same defense uniformly recognized under
OSHA which regulates excavation and flammable liquid processing work
sites as hazardous as some mining activities, particularly, where
adoption serves to promote the Mine Act's identical emphasis upon safe
work practices by miners as the touchstone for reducing the risk of
mine accidents. See S. Rep. No. 181 95th Cong. 1st Sess. at 18 (1977)
("It is the intention of the Committee that [the miner's duty to
comply with the Act] will foster the necessary cooperation between
miner and operators ... if the nation's mines are to be made truly
safe").

5/ Here, Asarco has more than met any burden of showing the
adequacy of its safety program. The majority agrees that Asarco's
written safety rules, safety procedures with specific emphasis upon
ground control, and the training and supervision of its miners were
"adequate under all the circumstances." 7 FMSHRC at 1726. The
administrative law judge specifically rejected the Secretary's
"suggestion that the accident resulted from a supervisory failure."
7 FMSHRC at 1726. Indeed, the administrative law judge found that
supervisory dereliction on this record would require a mine operator
to provide one to one supervision of all miners at all times.

Page 15

"Nowhere does the Act or the standard in question suggest such a
draconian requirement." 7 FMSHRC at 1726. Asarco comprehensively
distributed its safety rules to all miners, including Lysne, who
signed them acknowledging receipt, and these rules were reviewed in
monthly safety meetings attended by all miners and supervisors
including Lysne who began working for Asarco in 1972. Moreover, the
administrative law judge also found and the majority agrees that
Asarco "was not negligent" and that "Lysne's decision to begin
drilling on an obviously unstable face must be regarded as
unforeseeable and idiosyncratic." 7 FMSHRC at 1726. Neither acts
of omission or commission by Asarco contributed in any way to Lysne's
accident.

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incapacitated by the alleged misconduct, the cases have also
turned on other evidence to satisfy this element.

Since the advent of the "unforeseeable employee misconduct
defense" there has been a salutary impact on the degree of excellence
of employer s safety training programs within the jurisdiction of
OSHA. As a result, safety and health compliance in the workplace
has benefitted directly by entertaining this defense. An additional
benefit has occurred - that is, the credibility factor throughout
the employer community with concomitant heightened respect for the law
which directly fosters voluntary pre-inspection compliance focused
upon the detection and elimination of preventable hazards. 6/ This is
because the employer knows that due consideration will be given to his
defense under circumstances where he has done everything reasonably
possible to insure a safe workplace, yet the act of an employee
subjected him to a citation and that act could not be anticipated.

To conclude, as does the majority, that the 1977 Mine Act and

emerging case law preclude the raising of Asarco's defense would
seem to detract from the fundamental purpose of the Act as noted
above. Such preclusion miscasts the Act in a punitive rather than
in its intended preventive role. Certainly, it is incumbent upon all
operators to comply fully with the training requirements of the Act
and MSHA training regulations. But when the operator knows that its
training and safety program will come under the strict microscope of
administrative and judicial forums if an "employee negligence" defense
to an alleged violation is to be entertained, pure logic and history
under OSHA, dictates that the operator's safety training program and
its worksite application will be vigorously honed to pass muster,
thereby directly benefitting the overall safety and health of all
miners. It would indeed be a surprise if, notwithstanding these
benefits, Congress still intended to find the conscientious operator
guilty of any infraction on the mine property entirely outside that
operator's control. 7/

6/ Anderson, Buchholz, and Allan, "Regulation of Worker Safety
Through Standard- Setting: Effectiveness Insights, and Alternatives,"
37 Lab. L.J. 731 (1986) (creation of self-enforcement incentives
better advance work place safety than detailed safety standards).

7/ No provision of the 1977 Act expressly precludes application of
the unforeseeable employee conduct defense which had been adopted by
the federal courts under OSHA prior to passage of the Mine Act. Here,
the plain language of the Mine Act does not bar adoption of the
defense. To be sure Congress in section 110(a) eliminated

Page 17

administrative discretion in assessing civil penalties for operator
violations. But this is not equivalent to legislating that
unforeseeable employee conduct can never be a factor in the violation
determination.
The Commission decisions cited by the majority purporting to
foreclose the unforeseeable employee misconduct defense on the basis
of per se operator liability all involved degrees of operator
negligence or
(footnote 7 continued)

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With this observation in mind, buttressed by the 1977
legislative changes to the 1969 Coal Act in sections 2(e) and (g)
emphasizing the "primary", in place of the "sole", responsibility of
the operator to prevent unsafe and unhealthy conditions "with the
assistance of the miners ...", coupled with the change in section
104(a) mandating a citation upon the inspector's "belief" rather than
a "finding" that the operator has violated the Act or regulations
adopted pursuant to the Act, I respectfully feel the statutory
latitude exists to entertain and sustain the "unforeseeable employee
misconduct" defense advanced by Asarco in this case. On the record
here, which exhibits not a trace of negligence by Asarco, as found by
the majority, I would find no violation of 30 C.F.R. $ 57.3-22, and
absent a violation within the scope of section 104(a), section 110(a)
imposing mandatory civil penalties cannot be reached and therefore no
civil penalty can be assessed.

This analysis is consistent with the statutory framework of

the 1977 Mine Act. Under sections 104(a) and 105(a), no citation
is issued or civil penalty proposed unless the Secretary "believes"
a violation has occurred. In making this determination the "belief"
standard of section 104(a) contains well within its parameters
latitude for reasonable belief and thus for consideration of the
"unforeseeable employee misconduct defense." As in any contested
case, the Secretary's belief of a violation is not always upheld.
And in such cases, the mandatory penalty provision of section 110(a)
is inapplicable because no violation has been found. Thus, it
follows that the procedural priority accorded sections 104(a) and
105(a) over section 110(a) precludes reliance upon section 110(a)
as per se foreclosing a defense raised in response to the Secretary's
initial belief that a violation exists, particularly where, as here,
such defense is not ruled out by specific statutory language.

In the mining industry there are varying degrees of excellence

in mine safety and health training. There are operators who have
successfully avoided any disabling miner injuries over literally
millions of man hours worked. Yet, when an operator showing far less
attention to health and safety matters suffers a tragic accident,
the whole industry suffers. Similarly, the United Mine Workers of
America, the Steelworkers, and other labor organizations, including
independent company unions and employee groups who have earned respect
for their excellent safety and health training and miner compliance
programs, all strive to ensure that their coworkers do not, through
any aberrant act, reflect adversely on these continuing efforts to
maintain a safe and healthy workplace.

Page 19

Footnote 7 end.

acts of omission within the operators control either creating or
perpetuating the hazard subject to the citation. In each of these
cases that defense, even if entertained, could not be sustained
because the operator failed to meet the strict requirement of an
adequate safety program. Compare H.B. Zachry Co. v. OSHRC, 638 F.2d
812 (5th Cir. 1981)(defense fails because employee skipped scheduled
safety meetings and was given inadequate work supervision).

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Permitting the defense of "unforeseeable employee misconduct,"
measured against the stringent standards required herein, will
advance significantly the cause of health and safety in the Nation's
mines, and will complement and encourage the legitimate extra efforts
of the majority of operators and employee organizations to work
towards a hazard free mine environment to the greatest extent
possible. In contrast, the lack of recognition of these cooperative
efforts integral to the defense put forward here will act to preclude
the realization of the additional benefits to mine health and safety
noted herein. I would allow and sustain Asarco's defense and,
therefore, dismiss the citation. 8/

                Ford B. Ford, Chairman

8/ Accordingly, I find it unnecessary to reach Asarco's claim of
denial of constitutional equal protection.

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Distribution

Earl K. Madsen, Esq.
Bradley, Campbell & Carney
1717 Washington Avenue
Golden, Colorado 80401

Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203