Blue Diamond Coal Company

Read the official release (fmshrc.gov)

Plain-English summary

Blue Diamond Coal Company operated an underground coal mine in Kentucky where electrician Gary Caudill was electrocuted while working on a belt starter box. MSHA charged six violations involving deenergizing electrical equipment, electrical grounding and labeling, weekly examinations, and preservation of the accident site. Judge Michael E. Zielinski affirmed the violations, but found that several were not unwarrantable failures and reduced the related penalties. The judge affirmed one order in all respects, affirmed the other orders and citations as modified, and assessed a total civil penalty of $90,500.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.509, 75.511, 75.512, 75.701, 75.904, 50.12
• Outcome: All six charges were affirmed, several negligence or unwarrantable-failure findings were modified, and a $90,500 civil penalty was assessed.
• Key point: The decision distinguishes serious electrical violations from unwarrantable failure and imputes an agent’s negligence only when the employee was acting as the operator’s agent.

Full text (FMSHRC public release)

BLUE DIAMOND COAL COMPANY -- July 19, 2004

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

           OFFICE OF ADMINISTRATIVE LAW JUDGES

          601 New Jersey Avenue, NW, Suite 9500

                  Washington, DC   20001

                      July 19, 2004

BLUE DIAMOND COAL COMPANY, : CONTEST PROCEEDINGS
Contestant :
: Docket No. KENT 2002-99-R
: Citation No. 7476996; 12/3//2001
:
: Docket No. KENT 2002-100-R
: Order No. 7476997; 12/3/2001
:
: Docket No. KENT 2002-101-R
: Order No. 7476998; 12/3/2001
v. :
: Docket No. KENT 2002-102-R
: Order No. 7476999; 12/3/2001
:
: Docket No. KENT 2002-103-R
: Citation No. 7477000; 12/3/2001
:
SECRETARY OF LABOR, : Docket No. KENT 2002-104-R
MINE SAFETY AND HEALTH : Order No. 7478001; 12/3/2001
ADMINISTRATION, (MSHA), :
Respondent : Mine No. 77
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2002-255
Petitioner : A. C. No. 15-09636-03687
:
v. :
:
BLUE DIAMOND COAL COMPANY, :
Respondent : Mine No. 77

DECISION

Appearances: MaryBeth Zamer Bernui, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, on behalf of the Secretary of Labor;
Melanie J. Kilpatrick, Esq., Wyatt, Tarrant & Combs, LLP, Lexington, Kentucky, on behalf of Blue Diamond Coal Company.

Before: Judge Zielinski

 These cases are before me on Notices of Contest filed by Blue Diamond Coal Company

("Respondent"), and a Petition for Assessment of Civil Penalties filed by the Secretary of Labor
("Secretary"), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. � 815 ("Act"). The petition alleges that Blue Diamond is liable for six violations of the
Secretary's regulations applicable to underground coal mines, and proposes the imposition of
civil penalties totaling $315,000.00. A hearing was held in Hazard, Kentucky, and the parties
filed briefs after receipt of the transcript. For the reasons set forth below, I find that Blue
Diamond committed the violations and impose civil penalties totaling $90,500.00.

          Findings of Fact - Conclusions of Law

 On July 20, 2001, Gary Caudill was electrocuted while working in Blue Diamond's

No. 77 mine, located in Perry County, Kentucky. Caudill, who had been a certified electrician
for about 14 months, was assigned to the 010 section on the third shift. He and Toy Coots, who
was listed on Blue Diamond's time sheets as "shift chief electrician 3," were assigned to
disconnect wiring to the 010 section's head drive, so that the equipment could be moved. They
went underground about 2:00 a.m., after waiting for a fellow employee who was late.

 When they arrived at the end of the track, Coots proceeded toward the area of the head

drive, passed through a "man door," and surveyed the area to ascertain what had to be done. He
then went back out the man door and around to the 300 kilovolt ("KV") power center that
supplied electrical power to the two pieces of equipment in that area, the #9 head drive (the 010
section's head drive) and a 20 horsepower ("HP") booster pump. The power center, head drive
and booster pump are depicted in exhibit P-3. While the equipment and the power center were
located in close proximity, they were separated by a concrete block brattice wall, and getting
from the equipment to the power center involved traversing over 1,000 feet and passing through
three man doors. As Coots left the area, he passed Caudill, who was proceeding to the head
drive. Coots opened a man door in the brattice that enclosed the power center and observed that
the connector for the head drive's power cable, referred to as a "cat head," had been pulled and
was laying on the floor. No lock had been placed on it, to prevent insertion into the power
center's circuit breaker. He placed his lock on the connector, and proceeded back to the area of
the head drive. The circuit breaker for the head drive's power cable was located very close to the
man door. Coots did not actually enter the power center enclosure and did not check the breaker
for the booster pump, which was located on the far side of the power center.

 When Coots arrived at the head drive, he saw Caudill working on the head drive's starter

box ("belt starter box" or "belt box"), a three-sectioned metal box housing switches that
transmitted electric power from the power center to the drive's motor. Coots assisted in pulling
the motor leads from the belt box after Caudill had disconnected them. He then began to remove
guards from the head drive, located approximately 25 feet away, while Caudill continued to work
on the belt starter box.

 Coots heard Caudill say something to the effect that he thought there might be power on

the belt box. He replied that there shouldn't have been power on the box because the cat head
had been pulled and locked.1 A very short time later, no more than a few seconds, Coots heard
Caudill scream and saw that he had fallen to the floor. At first, Coots thought that Caudill was
joking, because he had acted in such a manner about a week earlier. He shouted at Caudill, but
got no response, and then proceeded over to where he was laying. It was apparent that Caudill
was not faking distress. His arm was resting against the belt box, and the sleeve of his shirt was
caught on the latch on one of the box's doors. Coots grabbed Caudill's suspenders and tried to
pull him away, but felt electrical power. He then turned and used his foot to move Caudill away
from the box. Coots attempted to revive Caudill, but was unable to do so. He then ran to the
man-door to the section and called out to the 010 section crew that was working about
150 feet away.2

 Sam Combs, the foreman, and the rest of the crew ran to where Caudill was located.

Combs sent for an Emergency Medical Technician ("EMT") and a Mine Emergency Technician
("MET"). He and Tommy Rice performed CPR on Caudill for about 10 minutes. Rice
mentioned that he felt power on the box. Combs then sent Gary Hubbard to check and make sure
there were no power cables plugged into the power center.3 Tr. 177, 186-87. Robert Begley was
an EMT and foreman on the 010 section's second shift, which was working overtime to assist in
moving the equipment.4 He and his electrician, Jeffrey Begley, an MET, ran some 33 breaks
from where they were working to the accident scene. As they arrived, Sam Combs was exiting
the man door to the head drive area to look for them. Robert Begley asked him if all power was
off. He reported that it was, and there were no lights in the area. Tr. 215, 254-55. Coots also
said that all power was off. Tr. 218. The Begleys performed CPR on Caudill, but had great
difficulty establishing and maintaining an airway. Caudill's jaw was locked and he felt cold.
Tr. 259. After about 30 minutes, they abandoned their effort.

 When Robert Begley learned that Combs had had difficulty notifying surface officials, he

sent a man down to the end of the track line, where another phone was located. After
abandoning the CPR effort, Begley went to that phone and called John Boylen, Blue Diamond's
director of operations, who directed that Caudill be evacuated, and that all employees be removed
from the area. He also instructed Begley that nothing involved in the accident was to be
disturbed and that the site was to be preserved for investigations. Combs testified that Rice
knocked a hole in the concrete block brattice between the accident scene and the power center, in
an attempt to create a shorter passage for the evacuation, but Combs told him to leave it alone.
Tr. 192. The Secretary's Mine Safety and Health Administration ("MSHA") was notified of the
accident and an investigation was begun immediately by MSHA and State officials.

 When investigators arrived at the scene of the accident, they found no power source on

the belt box that could have produced a fatal injury. Its power cable had been disconnected and
locked out at the power center. The power cable to the nearby booster pump had also been
pulled, but not locked out. The cut data/phone line carried only 20 volts, and there were no other
wires connected to the box. Their most significant discovery was a 118-foot length of 16/3 wire
that had been cut at one end.5 A piece of identical wire, about seven inches long, was found
immediately adjacent to the starter box of the booster pump. The cut ends of those wires mated-
up, as depicted in exhibit P-9. The investigators eventually determined that the wire had been
used as a control circuit between the booster pump and the belt starter box, so that the pump
would operate whenever the head drive belts were running.6 One end had been connected to the
start/stop switch contacts in the pump's starter box, which carried 480 volts. The other end had
been inserted into the belt starter box and attached to interlock contacts that closed when the head
drive was energized. This substituted the contacts in the belt starter box for the manual start/stop
switch in the pump's starter box.

 The primary ground connection for equipment is supplied through its main power cables.

When they are plugged into the power center, those pieces of equipment are properly grounded.
Ground leads in wires connecting various elements of the equipment, e.g., disconnect switches,
starter boxes, and motors, assure that all such elements are grounded through the power center.
The ground conductors in the 16/3 wire had been cut off at both ends at the point that outer
insulation had been stripped back to, i.e., the ground wire had not been connected to either the
belt box or the pump starter box. Consequently, the control circuit had not been grounded. As
wired prior to the accident, when the head drive power cable was disconnected, the belt starter
box was no longer grounded yet power was being delivered to the box by the ungrounded 480-
volt control circuit connected to the pump's starter box.

 In the early morning hours of July 20, 2001, MSHA and the State of Kentucky

commenced a thorough investigation of the fatal accident. Their efforts were frustrated by the
changes that had been made to the accident scene, the absence of records, and a lack of candor on
the part of Blue Diamond employees. The identity of the electrician who installed the pump's
control circuit was never ascertained. Nor was it determined exactly how Caudill came into
contact with the energy source. After eliminating other potential sources of power, including
other nearby equipment, stray current from surface overhead electrical lines, and even lightning,
the investigation team determined that Caudill most likely encountered at least one phase of the
480-volt control circuit, either by touching one of its leads or by touching the frame of the belt
box when the lead was in contact with it.7 The ultimate conclusion reflected in the Report of
Investigation was that Caudill came "into contact with energized electrical components [as a
result of work] being performed on energized electrical equipment prior to the mine operator's
ensuring that all electrical power sources to the equipment were properly locked and tagged out."
Ex. P-1, at 11.

 Based upon the findings and conclusions of the investigative team, on December 3, 2001,

MSHA issued one citation and four orders to Blue Diamond, charging violations of mandatory
safety standards for underground coal mines and one citation charging a violation of a regulation
mandating preservation of accident sites. The five charges based upon safety standards were
issued pursuant to section 104(d) of the Act, and alleged that the violations "could significantly
and substantially contribute to the cause and effect of a coal . . . mine safety . . . hazard, . . . [and
were] caused by an unwarrantable failure of [the] operator to comply with [the] mandatory safety
standard." 30 U.S.C. � 814(d). It was also alleged that each of the violations was a cause of the
fatal accident. The Secretary proposed civil penalties of $55,000.00, then the statutory
maximum, for each of those violations, and a civil penalty of $40,000.00 for the site alteration
charge. Blue Diamond timely contested the issuance of the charges and the proposed penalties.
Proceedings were stayed pending completion of investigations into potential criminal charges
and additional civil penalty assessments against individual agents of the operator. At the
conclusion of those investigations, no additional charges were brought. Additional delay was
prompted by the initiation of bankruptcy proceedings by Blue Diamond's parent company, the
James River Coal Company.

 The alleged violations are discussed below.

Citation No. 7476996

 Citation No. 7476996, alleges a violation of 30 C.F.R. � 75.509, which requires that, "All

power circuits and electrical equipment shall be deenergized before work is done on such circuits
and equipment, except when necessary for trouble shooting or testing." The "Condition or
Practice" section of the citation reads:

      Work was performed on electrical circuits and equipment without all
 power first being deenergized, while under the direct supervision of the chief
 electrician.

      The electrical circuit (277 volts) entering the #9 belt starting box and
 supplying power to the 20 HP booster pump was not deenergized prior to work
 being preformed on the energized circuit.  This resulted in a mine electrician
 contacting energized components and receiving fatal injuries on July 20, 2001.

Ex. Jt.-1.

The Violation

 In an enforcement proceeding under the Act, the Secretary has the burden of proving an

alleged violation by a preponderance of the evidence. In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff'd, Sec'y of Labor v. Keystone
Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998); ASARCO Mining Co., 15 FMSHRC 1303,
1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989); Jim
Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987).

 It is not disputed that Caudill worked on electrical circuits and equipment that had not

been deenergized. The testimony of the Secretary's witnesses paralleled the findings in the
Report of Investigation, exhibit P-1. All sources of power, other than the 480-volt control
circuit, were eliminated as causes of Caudill's electrocution. While the belt drive's power cable
connector had been pulled and locked out, the power cable connecter to the booster pump had not
been pulled and the power supplied to the booster pump's control circuit caused the
electrocution. It is also clear that the violation was significant and substantial.8 The issue is
whether the violation was the result of the operator's unwarrantable failure.

Unwarrantable Failure

 In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated

the law applicable to determining whether a violation was the result of an unwarrantable failure:

      The unwarrantable failure terminology is taken from section 104(d) of the
 Act, 30 U.S.C. � 814(d), and refers to more serious conduct by an operator in
 connection with a violation.  In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
 1987), the Commission determined that unwarrantable failure is aggravated
 conduct constituting more than ordinary negligence.  Id. at 2001.  Unwarrantable
 failure is characterized by such conduct as "reckless disregard," "intentional
 misconduct," "indifference," or a "serious lack of reasonable care."  Id. at
 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991)
 ("R&P"); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir.
 1995)] (approving Commission's unwarrantable failure test).

      Whether conduct is "aggravated" in the context of unwarrantable failure is
 determined by looking at all the facts and circumstances of each case to see if any
 aggravating factors exist, such as the length of time that the violation has existed,
 the extent of the violative condition, whether the operator has been placed on
 notice that greater efforts are necessary for compliance, the operator's efforts in
 abating the violative condition, whether the violation is obvious or poses a high
 degree of danger, and the operator's knowledge of the existence of the violation.
 See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) . . . ; Cyprus
 Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998),  rev'd on other grounds,
 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan.
 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody
 Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc.,
 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC
 705, 709 (June 1988).  All of the relevant facts and circumstances of each case
 must be examined to determine if an actor's conduct is aggravated, or whether
 mitigating circumstances exist.  Consol, 22 FMSHRC at 353.  Because
 supervisors are held to a high standard of care, another important factor
 supporting an unwarrantable failure determination is the involvement of a
 supervisor in the violation.  REB Entrs., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

 Involvement of an operator's agent, typically a supervisor, is particularly significant

because the negligence of an agent can be imputed to the operator for purposes of unwarrantable
failure and civil penalty assessment. E.g., Capital Cement Corp., 21 FMSHRC 883, 893 (Aug.
1999) (citing R&P, 13 FMSHRC at 194-97). "Managers and supervisors in high positions must
set an example for all supervisory and non-supervisory miners working under their direction.
Such responsibility not only affirms management's commitment to safety but also, because of the
authority of the manager, discourages other personnel from exercising less than reasonable care."
Id. at 892-93 (quoting from Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987)).

 Section 3(e) of the Act defines "agent" as "[a]ny person charged with responsibility for

the operation of all or a part of a coal or other mine or the supervisor of the miners in a coal or
other mine." 30 U.S.C. � 802(e). In considering whether an employee is an operator's agent, the
Commission has relied, not upon the job title or the qualifications of the miner, but upon his
function, and whether it is crucial to the mine's operation and involves a level of responsibility
normally delegated to management personnel. Martin Marietta Aggregates, 22 FMSHRC 633,
637-38 (May 2000); REB Enterprises. Inc., 20 FMSHRC at 211; Ambrosia Coal & Constr. Co.,
18 FMSHRC 1552, 1560 (Sept. 1996); U.S. Coal Inc., 17 FMSHRC 1684, 1688 (Oct. 1995).

 The Commission has relied upon precedent developed under the National Labor

Relations Act, 29 U.S.C. � 141, et seq., to the effect that the authority to assign tasks and make
schedules is not sufficient to afford an individual supervisory status. Martin Marietta,
22 FMSHRC at 638. In Ambrosia it was held that a "person in charge" was an agent because he
performed functions that were crucial to the mine's operation and exercised responsibility
normally delegated to management personnel. Those functions were: accompanying MSHA
inspectors and attending close-out conferences as the operator's representative, conducting daily
examinations and recording findings as a certified mine examiner, and issuing work orders to
abate citations. There was also evidence that the agent held himself out as the employee in
charge, signed documents as mine foreman and was viewed by other miners as a person with
authority.

 In Whayne Supply Co., 19 FMSHRC 447, 451 (Mar. 1997), the Commission held that a

"highly experienced repairperson who needed little supervision and helped less experienced
employees [was not] a supervisor, much less a manger [because there was] no evidence that [he]
exercised any of the traditional indicia of supervisory responsibility such as the power to hire,
discipline, transfer, or evaluate employees [or that he] 'controlled' the mine or a portion thereof."
Similarly, in Martin Marietta, it was held that an employee who had the authority to tell other
miners how he wanted a job done and to stop them if he did not like what they were doing was
not an agent or supervisor. His control was tightly circumscribed and he could not hire, fire,
evaluate or discipline miners and could not take any action to abate citations, or change a miner's
job or the equipment on a job, was paid at an hourly rate, and did not hold himself out as a
supervisor or person in charge.

 An employee's functions, and status as agent, are considered as of the time of his

allegedly negligent conduct. Martin Marietta at 638; REB at 194; Whayne Supply at 452; U.S.
Coal at 1688. Consequently, even a rank-and-file miner can be found to be an agent while
performing critical, management-related functions such as required safety examinations. R&P
(rank-and-file miner who was a certified mine examiner was agent of operator when assigned to
perform such inspections); compare Mettiki Coal Corp., 13 FMSHRC 760 (May 1991) (certified
electrician acts as an agent when performing monthly electrical inspections), with U.S. Coal,
17 FMSHRC at 1688 (certified electrician does not act as an agent when performing routine
repairs).

 As stated in the citation and argued in the Secretary's brief, the unwarrantable failure

allegation is principally based upon the contention that Coots was a supervisor and agent of Blue
Diamond, and that his actions in responding to Caudill's concern that there might be power on
the box amounted to reckless disregard. In reaching the conclusion that Coots was Blue
Diamond's agent, Conley, the lead investigator, relied solely upon Coots' job title, which was
reflected on time sheets as "shift chief electrician 3." 9 Tr. 25, 41; ex. P-4. Patrick A. Stanfield,
an MSHA electrical inspector, confirmed that Coots' actions were the basis of the unwarrantable
failure charge, and also related his belief that Coots had been directing the work force, although
he was unable to specify the grounds for that belief. Tr. 310, 315-16, 395-97. He later conceded
that the determination was based upon Coots' title, and that he worked on the electrical portion
of the investigation and left the determination regarding agency to Conley. Tr. 414-15, 422-26.

 Coots was assigned to maintenance, and worked under Willie Collins, Blue Diamond's

chief of maintenance. He was referred to as the "floater," and was the only electrician that was
assigned to maintenance for the entire third shift. There were two other certified electricians that
worked on the third shift: Caudill, who was assigned to the 010 section for the first part of the
shift, and Roger Cornett, who was assigned to the 09 section for the first part of the shift.
Tr. 444. The working sections were supervised by a foreman, and usually produced coal for the
first 3-4 hours of the shift. When coal was being produced, Caudill and Cornett performed a
variety of mining tasks, reported to, and were supervised by, the section foremen. Tr. 168,
200-01. Sam Combs was the foreman for the 010 section, and Troy Combs, Jr., was the foreman
for the 09 section.

 The last part of the third shift was usually devoted to maintenance.  During that time, the

section electricians joined Coots and worked on electrical maintenance tasks. They ceased being
part of the section crews and were no longer supervised by the section foremen. Coots, Caudill
and Cornett, as certified electricians, were qualified to work independently, and did so. Tr. 443.
They did not review or inspect each other's work. Coots had approximately 3 years more
experience as an electrician and was paid a little more than Caudill.10 Coots, who had left Blue
Diamond's employment in October 2001, testified that he was a floater, or troubleshooter, on the
third shift. He helped the section electricians and was not Caudill's boss, but was more his
helper. Tr. 78, 120-23. Collins described Coots' duties in similar terms. He was a floater, who
handled the outby equipment, e.g., "rail runners, man trips and scoops." Tr. 442-43.

 Collins and the second shift foremen identified maintenance tasks to be performed on the

third shift. Tr. 445. Those tasks were usually transmitted from Collins in the form of work
orders or a "to do" list. An electrician responsible for a certain task would perform the work
required, sign-off on the work order, and turn it in at the end of the shift. Tr. 445-46. While
Coots, who was typically the only electrician present at the beginning of the shift, may have
distributed, or facilitated the distribution of the work orders, the actual assignment of tasks
appears to have been more of an informal, ad hoc, process. Collins testified that Coots did not
assign jobs to other electricians. Tr. 478.

 Coots was generally responsible for obtaining in-stock parts needed for electrical repairs

being done on the third shift, usually by physically walking out and getting them. Tr. 84, 443-44.
Collins had to approve requests for parts that had to be ordered. Tr. 444. While it is not clear
that other electricians could not also obtain parts, it appears that Coots was the primary person
that performed that function.

 Coots performed weekly electrical inspections on a regular basis.11  Tr. 81.  Other

electricians also performed such inspections. Tr. 83. MSHA inspectors reviewed the electrical
books and saw that Coots had signed-off in several places. There was no evidence that Caudill
had signed the electrical books. Coots did not recall what areas he had inspected, and
specifically could not recall whether he had inspected the booster pump, which had been installed
approximately six weeks prior to the accident.12 Tr. 141. He testified that he was not aware of
the 480-volt control circuit running from the booster pump to the belt starter box.13 Tr. 140.
MSHA's witnesses did not specify the location of the equipment that Coots had certified that he
had inspected on the electrical books. Nor did they state that Coots had signed-off on an
inspection of the 010 section's head drive during the six weeks that it had been at that location.

 On the day of the fatal accident, the 010 section second shift had been held over to help

the third shift move the longwall equipment, and no production had occurred. Consequently,
from the beginning of the shift, all three electricians worked on maintenance tasks associated
with the move. Work orders were not issued for such tasks, in part, because it was difficult to
predict exactly when the equipment move would be required. The "to do" list for that date
directed that the electrical connections to the 010 section's head drive be removed. Coots and
Caudill intended to jointly perform that task. According to Coots, Caudill liked to hurry and get
started on any job. "He was the first one there." Tr. 154. When he and Coots arrived
underground, Caudill apparently went directly to the power center and removed the power cable
connector for the head drive. Coots first went to survey the work area. While he proceeded to
the power center, where he placed his lock on the cable connector, Caudill began disconnecting
the power cables and other wires at the belt starter box. Tr. 121. Caudill was not acting at the
direction of Coots. He independently chose to begin disconnecting wires from the belt box.

 Coots was paid on an hourly basis and did not have authority to hire, fire, or discipline

other employees. These factors are of little significance, however, because foremen also were
paid hourly and the power to hire and fire resided considerably farther up the chain of command.
However, unlike Coots, foremen had the authority to recommend discipline and participate in
disciplinary proceedings.

 The Secretary argues that the testimony of two of Blue Diamond's supervisors, Sam

Combs and Robert Begley, supports her allegation that Coots was a supervisor. However, while
both witnesses made statements relied upon by the Secretary, other portions of their testimony
substantially undercut the portions that the Secretary relies upon. There was also extremely
limited foundation for their testimony on the supervisory structure for the electricians working
maintenance and, at least as to Begley, an admitted lack of personal knowledge.

 Sam Combs testified that floaters usually "were mostly in charge," and that "your float

was usually considered one of the bosses." Tr. 164, 167. He also stated that he understood that
the responsibility to make electrical examinations was Collins' and Coots'. Tr. 199-200.
However, Combs specifically declined to state that Coots was in charge of telling Caudill what to
do. Tr. 166. He later stated that when Caudill was working maintenance, Collins was his
supervisor. Tr. 168. He added that Coots would not usually check on work being performed by
Caudill. Tr. 167-68. Combs also believed that it was Collins' responsibility to assure that
weekly electrical examinations were conducted and recorded in the books, although he added that
the responsibility was Collins' and Coots', "I guess." Tr. 200. As to work assignments, Combs'
understanding was that the electricians' maintenance tasks were "already laid out for them [on
cards] before we ever arrived at the mines." Tr. 166.

 Robert Begley, who was called in to be the second shift foreman on the 010 section on

July 20, 2001, testified that "as far as [he] knew, [Coots] was like . . . the electrical boss on the
third shift. He'd give . . . the to do list to the repairmen. Make sure, I guess, that they got . . .
their stuff done." Tr. 253. However, he later testified that he did not work directly with the third
shift electricians and "Collins made all the calls as far as electrical at the mine," and might have
told Coots what the maintenance work assignments would be. Tr. 270.

 I find that the functions performed by Coots were comparable to those of a "lead man," as

described in Whayne Supply and Martin Marietta. He did not supervise Caudill's work or the
work of other electricians. He did not decide what maintenance tasks would be performed. At
best, he facilitated the distribution of work assignments to other third shift electricians. He was
primarily responsible for physically obtaining parts needed for work on the third shift. While the
Secretary makes much of this responsibility, she offers little support for the contention that this is
a level of responsibility normally delegated to management personnel. Aside from conducting
safety inspections, there is no evidence that Coots performed any of the functions identified in
Commission cases as those of an agent. Coots did not control a portion of the mine, and his
functions were not those typically assigned to management. Consequently, when performing his
routine duties, he was not Respondent's agent.14

 R&P and Mettiki make clear that Coots acted as Blue Diamond's agent when performing

weekly electrical examinations. However, the accident here, and the allegedly negligent conduct
cited by the Secretary, did not occur when he was performing such an examination.
Consequently, his alleged negligence cannot be imputed to Respondent.15

 That does not end the inquiry, however, because the Secretary contends that, even if

Coots were not Blue Diamond's agent, the company is chargeable with unwarrantable failure
because of the overall dangerousness of the situation created, and its failure to assure that Caudill
was aware that the booster pump's control circuit provided a source of power in the belt starter
box. I find that Blue Diamond was negligent with respect to this violation, by failing to take
steps to assure that an electrician working on the belt starter box would know that there was a
second source of power to the box, but that the negligence was moderate.

 Since Caudill and Coots were not agents of Respondent's, any negligence by them cannot

be imputed to Respondent. Whayne Supply, 19 FMSHRC at 451-53; Southern Ohio Coal Co.,
4 FMSHRC 1459, 1463-64 (Aug. 1982). Blue Diamond's negligence, if any, must be
ascertained by examining the supervision, training and discipline of its employees. Id.

 Blue Diamond had a clear written policy that all electrical equipment was to be

deenergized and locked out and tagged out prior to being worked on. Tr. 505-06; ex. R-7 at
pp. 9-2 to 9-3. That policy was provided to its employees. Blue Diamond furnished appropriate
equipment to its electricians: locks, voltmeters and voltage sensing wands. Tr. 509, 561.
It provided training on proper lock/tag out procedures. In fact, it provided training on those
procedures to Caudill and Coots only two days prior to the accident. Tr. 142-46; ex. R-1, R-2.
It also had an enforcement program, which consisted of spot-checking electricians to assure that
they complied with the deenergize, lock and tag out policy. Tr. 144, 240, 507, 510, 556-57.

 There is considerable evidence that Blue Diamond had a clear policy, thorough training

and an effective enforcement system, to assure that electrical equipment was deenergized, and
locked and tagged out, prior to being worked on. However, running a second source of power,
particularly a 480-volt circuit, to another piece of equipment, and failing to clearly identify that
source of power either on the equipment itself, or at the power center, created a potentially
dangerous situation. Although Collins testified that such control circuits were not uncommon at
the mine, he described no training program or other mechanism whereby electricians were
informed of such wiring schemes. Stanfield testified that no one in mine management told
MSHA that Coots or Caudill had been trained on how the box was wired. Tr. 325. Neither
Caudill, nor Coots, was aware of the presence of the 480-volt control circuit in the belt box.
Coots testified that there were no schematic, or other drawings of circuits for equipment such as
the belt-box, that an electrician could consult to learn the presence of a second power source in
the box.16 Tr. 153.

 Blue Diamond argues that it was entitled to rely upon the expertise of its certified

electricians, and that Caudill should have identified the control circuit as a second source of
power and deenergized it. Caudill was clearly negligent in failing to deenergize the starter box.
He failed to effectively use his voltmeter, and especially his power sensing wand, to make sure
there was no power on the box. He also failed to ascertain the presence and/or purpose of the
16/3 wire carrying 480 volts that entered the box. Nevertheless, failing to inform electricians
about a second power source to a piece of equipment they were assigned to work on, leaving
them to find it on their own, created a risk that was not consistent with the high standard of care
to which supervisory officials are held.

 Based upon consideration of the above factors, I find that Blue Diamond's negligence

with respect to this violation was moderate. There was no direct involvement by any supervisor
in Caudill's failure to deenergize the equipment, and many of the other factors typically
considered in the unwarrantable failure analysis do not implicate Blue Diamond. The violation
was isolated and of very short duration. There was no notice that greater efforts were necessary
for compliance and no supervisor or agent of Blue Diamond was aware of the violation prior to
the accident. The violation was promptly abated.

Order No. 7476998

 Order No. 7476998, alleges a violation of 30 C.F.R. � 75.511, which requires, inter alia,

that, "Disconnecting devices shall be locked out and suitably tagged by the persons who perform
such work, . . . [and] shall be removed only by the persons who installed them." The basis for
the violation was that the power cable connector for the booster pump was not locked out and
suitably tagged while electrical work was being performed. Ex. Jt.-3.

The Violation S&S Unwarrantable Failure

 There is no dispute that the power cable connector for the booster pump, and its control

circuit routed through the belt box, was not disconnected from the power center and was not
locked out and suitably tagged. Blue Diamond disputes the alleged violation, contending that it
is duplicative of the failure to deenergize violation charged in Citation No. 7476996. It also
contends that if this order is found to be a proper separate charge, it was not a cause of Caudill's
death, was not properly designated S&S, and was not due to its unwarrantable failure.

 Citations and orders alleging violations of different standards arising out of the same, or

related, conduct are not duplicative, as long as the standards involved impose separate and
distinct legal duties on an operator. Western Fuels-Utah, Inc., 19 FMSHRC 994, 1003-05 (June
1997) (citing Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378 (Mar. 1993); Southern Ohio
Coal Co., 4 FMSHRC 1459, 1462-63 (Aug. 1982); and El Paso Rock Quarries, Inc., 3 FMSHRC
35, 40 (Jan. 1981)). In Western Fuels-Utah, the Commission held that a charge of violating a
specific standard was duplicative of a charge of violating a more general standard. However, the
Commission made clear that its decision was not based solely upon the premise that every
violation of the more specific standard would also be a violation of the more general one.
Rather, it looked to whether the operator had been cited for more than one specific act or
omission. Had there been evidence of additional deficiencies that violated the general regulation,
such that that allegation would not have been based upon the identical evidence used to support
the violation of the more specific standard, the charges would not have been found duplicative.
Id. at 1004 n.12.

 Here, Blue Diamond argues that every failure to deenergize will always involve a failure

to lock out and suitably tag, because locking and tagging cannot be accomplished unless the
device has been unplugged, i.e., deenergized. Accepting that as a correct statement, I find that
the alleged violations are not duplicative because the standards impose separate and distinct
duties, and the alleged violations are based upon two separate and specific omissions. The two
standards are designed to address related, but different, duties. The first, section 75.509, requires
that electrical power be disconnected prior to work being performed. The second, section
75.511, requires additional actions to assure that reenergizing does not occur accidentally when
individuals are performing electrical testing or working on equipment. See U.S. Coal Inc.,
17 FMSHRC at 1684 n.1; Badger Coal Co., 6 FMSHRC 874, 902 (Apr. 1984) (ALJ). The
specific omission that supported the violation of section 75.509 was the failure to disconnect the
booster pump's power cable. The specific omission that supported the violation of section
75.511 was the failure to lock and tag the disconnecting device. While it is true that every
violation of section 75.509 will also entail a violation of section 75.511, the two standards
impose separate and distinct duties and, consequently, charges that each were violated are not
duplicative.

 While the two charges are not legally duplicative, the unique facts of this case

dramatically alter the causation and S&S analyses. There is no evidence that Caudill was killed
because the booster pump was reenergized, after having been disconnected. It was the failure to
deenergize the pump that resulted in the fatality. The failure to lock and tag violation did not
result in a fatality and, on the facts of this case, the failure to lock and tag an energized circuit
did not incrementally increase the risk of injury already present. Consequently, I find that this
violation was unlikely to result in an injury and was not S&S.

 The violation was not the result of Blue Diamond's unwarrantable failure.  Much of the

analysis of unwarrantable failure with respect to Citation No. 7476996 applies fully to this
violation, with the exception of the finding that Respondent was moderately negligent.
Respondent's negligence with respect to the failure to deenergize citation was based upon its
failure to impart knowledge of the control circuit to electricians who were assigned to work on
the belt box. The lock and tag violation, at least legally, stands on its own footing, and the
negligence found with respect to the citation has no application here. As noted previously,
Caudill and Coots received specific training on lock and tag procedures only two days prior to
the accident. Blue Diamond had a perfectly adequate written policy to lock and tag equipment
and provided the equipment to facilitate that procedure. It also had an effective program of spot
checking electricians to assure that they were complying with the required procedure. I find that
Respondent was not negligent with respect to this violation.

Order No. 7476999

 Order No. 7476999 alleges a violation of 30 C.F.R. � 75.512, which requires that, "All

electric equipment shall be frequently examined, tested, and properly maintained by a qualified
person to assure safe operating conditions. . . . A record of such examinations shall be kept and
made available to an authorized representative of the Secretary and to the miners in such mine."
The basis for the violation was described in the Conditions and Practice section of the order as:

     Electric equipment (20 HP booster pump and the #9 belt drive's starting box)
 had not been properly examined and maintained to assure safe operating
 conditions: 1) a separate circuit originating from the booster pump's start box had
 been wired to the #9 belt box; 2) the start/stop switch located on the booster pump
 had been defeated (by-passed), allowing the booster pump to start when the #9
 conveyor belt was started; 3) the ground wires were found to have been cut at the
 booster pump and the belt drive starting box; and 4) the 20 HP booster pump was
 not listed in the records of the examination of the electrical equipment.  The
 failure of the mine operator to insure proper examination and maintenance of
 electrical equipment contributed to the death of a mine electrician on July 20,
 2001.

Ex. Jt.-4.

The Violation S&S

 Inspector Stanfield reviewed Blue Diamond's electrical books from the date of the

accident back to year 2000. Although the booster pump should have been listed separately, and
examined weekly, there was no record of the booster pump in the books. Tr. 337. There is no
evidence that the booster pump and its control circuit had been examined by a qualified
individual during the approximate six weeks that the pump had been installed. Respondent does
not dispute that the pump should have been listed, but was not. It alleges that this order is
duplicative of a citation issued on July 25, 2001, alleging a violation of the same regulation with
respect to several pumps for which examination records were deficient. Alternatively,
Respondent contends that the causal relationship between this violation and the electrical
grounding violation alleged in Order No. 7476997 is the same, and that the two should not both
be unwarrantable failure violations assessed at $55,000.00.

 Blue Diamond's duplication argument is based upon Citation No. 7477177, issued by

Stanfield on July 25, 2001. It alleged a violation of 30 C.F.R. � 75.512-2, based upon
observations that the records of electrical examinations of "pumps, at the mine" did not show
that they had been examined weekly, noting that the "last date of examination of the pumps was
recorded on 4/19/2001." Ex. P-14. Blue Diamond contends that the booster pump on the 010
section was included in this citation, which had been paid, and that it cannot be subjected to
another charge, i.e., Order No. 7476999, for the same violation. While the notes and back-up
documentation prepared by Stanfield from his field notes contain references to the 010 booster
pump, I accept his explanation that the booster pump was not included in the pumps for which
the citation was issued. As he explained, the citation was issued for seven pumps listed on page
3 of his notes (Ex. P-14, p.3), for which there were records of examinations, but the examinations
had not been done weekly. Tr. 367-70. There was no record of any examinations for the booster
pumps for the 09 and 010 sections, which were the subject of separate citations for violations of
30 C.F.R. � 75.512. Tr. 368. I find that the 010 section booster pump, referred to in Order
No. 7476999, was not included in Citation No. 7477177.

 The absence of any record of examinations of the booster pump, and the absence of any

evidence that the pump and related control circuit had been inspected establish the violation.
I also find that the violation was S&S. The failure to perform required weekly safety inspections
of electrical equipment, particularly for extended periods of time, can result in serious hazards
going undetected, exposing miners to risk of serious injury. There was no record of the 010
section booster pump having been examined for at least several months. Hazardous conditions
can occur and become exacerbated quickly in the mining environment. That is why frequent
inspections are required, with appropriate testing and maintenance. The failure to perform such
examinations, and to keep records of them, created a reasonable likelihood that a reasonably
serious injury would result.

Unwarrantable Failure

 It is not clear why the first two items listed in the body of the order were included.

Nothing in the record establishes that wiring a control circuit from the pump's starter box to the
belt starter box, in itself, was improper or violative of any safety standard. The only witnesses to
testify on the issue stated that it was permissible. Tr. 232, 403, 479-80, 541. Nor does the fact
that the start/stop switch on the pump starter box was "by-passed" appear to be of significance.
Substitution of the control circuit contacts for the start/stop switch would appear to be required
for such a control circuit to operate properly and, as Stanfield admitted, there was a manual
disconnect switch box for the pump located virtually in the same location as its starter box.
Tr. 329-30, 404. Consequently, there was a readily available on/off switch for the pump.
Respondent was not cited for installation of the control circuit itself, or for by-passing the
start/stop switch.

 The third item listed, the unconnected ground leads in the control circuit wire, was clearly

of significance. The primary ground connection for electrical equipment is provided by the
power cables connected to the power center. Consequently, no ground is provided when the
cable is disconnected, which was the case when Caudill began work on the belt starter box. The
power cable to the booster pump was plugged into the power center, and that piece of equipment
was effectively grounded. Had the ground leads in the control circuit wire leading from the
pump to the belt starter box been properly connected, the belt box would also have been
grounded. However, the leads for the ground wire in the 16/3 control circuit had been cut off,
rather than connected, at the time the circuit was installed. Consequently, when the power cable
for the belt drive starter box was disconnected, the box was no longer grounded. Yet it could,
and possibly did, become "alive" through contact with the energized control circuit.

 If the ground leads on the control circuit had been properly connected, Caudill may not

have been killed. Ground circuits serve two purposes. They make the metal equipment frames
part of the circuit, providing a path to ground for electrical energy that might come into contact
with the frame. They also have devices that limit to 25 amps the amount of current that can flow
through the ground default circuit. Tr. 321-22. If an energized lead of the control circuit
contacted the belt box frame, the circuit breaker to the booster pump would have tripped,
deenergizing the pump. Tr. 322. If Caudill had contacted an energized lead of the control
circuit and the belt box frame, the current that passed through him would have been limited to
25 amps. Although he still may have been electrocuted, he may have received only a shock.
Tr. 534-35.

 The Secretary argues that the failure to perform weekly electrical examinations of the

booster pump for the six weeks it had been installed resulted in a failure to discover and correct
the absence of ground connections in the control circuit, and that the absence of any system of
assuring that the examinations were being conducted amounted to an unwarrantable failure that
resulted in Caudill's death. Blue Diamond counters that the Secretary did not establish that the
missing ground connections would have been discovered during an examination and that it was
guilty only of "mass confusion" over the responsibility for conducting the examinations, which
did not rise to the level of reckless disregard. I reject both of Respondent's arguments.

 The fact that the ground leads had been cut off rather than connected could have been

observed by opening the belt starter box and/or the pump starter box and performing an
examination of the connections for the various leads. A thorough and carefully performed
weekly electrical examination would most likely have resulted in discovery of the improper
connections. Tr. 135-36, 233, 338-43, 461, 617-18. While the focus of such examinations is to
detect adverse conditions that occurred since the last inspection, such as malfunctioning breakers
and abrasions to cables, boxes might well be opened to check for dust or other conditions
indicating lack of permissibility, which MSHA inspectors may do when performing normal
inspections.17 135-36, 617-18. If there were signs that stress or tension may have been placed on
a wire or cable, or a bushing was damaged or missing, close examination of wire connections
might also be required. There was no bushing where the control cable entered the pump starter
box. Tr. 342.

 As noted above, the pump was not listed in the electrical books, and there is no evidence

that it was examined by a qualified electrician during the six weeks that it had been installed
prior to the accident. It is also apparent that Respondent did not, at the time, have an effective
system of assuring that weekly electrical examinations were being conducted of all of the
involved electrical equipment. Coots testified that the second shift floater had been responsible
for performing the examinations, but he had been laid off at some point. Tr. 86. Collins, who
was also referred to as the chief electrician, testified that he started working at the mine only four
weeks prior to the accident and was not sure whether the prior chief of maintenance had
designated someone as responsible for performing the examinations, but he believed that it
would have been the responsibility of the face electrician, Caudill at the time. Tr. 455, 459-60.
In its brief, Respondent notes this testimony, and further cites the testimony of other witnesses
which it claims "revealed mass confusion as to whose responsibility examination of the booster
pump was." Resp. Br. at 30. It then argues that any violation was not the result of intentional
misconduct, and that its negligence must be classified as no more than moderate.

 There are few, if any, responsibilities of mine management more critical than assuring

that required safety inspections are performed. As noted in the discussion of agency above,
preshift examinations, weekly electrical examinations, and similar functions are of such
importance that they are classified as management functions, regardless of who performs them.
Mine managers and supervisors are also held to a high standard of care. Mass confusion that
leads to important safety inspections not being performed is a gross deviation from the high
standard of care that supervisors are held to. While it is, perhaps, understandable that multiple
changes in personnel might result in some confusion over such responsibilities for a short time,
when the result is that important safety examinations are not conducted for six weeks, or longer,
that confusion rises to the level of gross negligence or reckless disregard.

 Respondent argues that a finding of unwarrantable failure would amount to application of

a "knew or should have known" test and that in the absence of actual knowledge by a supervisor,
its negligence could be no more than moderate. I reject that contention. The cases cited by
Respondent do not substitute an "actual knowledge" litmus test for the multi-factored approach
to determining unwarrantable failure. In fact, the seminal case, Emery Mining, makes clear that
an operator's failure to abate a violation he "knew or should have known" existed can form the
basis of an unwarrantable failure finding. 9 FMSHRC at 2002, 2003. Collins and Hershell
Asher, the mine superintendent, may have had no actual knowledge that the ground wires in the
control circuit had not been connected, or that the booster pump had not been examined.
However, they are chargeable with knowledge that, over an extended period of time, they had
taken no steps to ascertain whether weekly examinations were being conducted. Moreover, the
violation was obvious. Even a cursory review of the readily available electrical books would
have revealed the absence of any listing for the pump. Collins certainly knew about the pump
and was also aware of the control circuit. The violation existed for months, including during the
critical six week period that the pump had been installed in the configuration it was in on the day
of the accident. The failure of mine management over an extended period of time to assure that
the booster pump was being examined, as required by the standard, can only be characterized as
indifference a "total or nearly total lack of interest" and easily rises to the level of reckless
disregard. Emery Mining, 9 FMSHRC at 2003.

Order No. 7476997

 Order No. 7476997 alleges a violation of 30 C.F.R. � 75.701, which requires that,

"Metallic frames, casings, and other enclosures of electric equipment that can become "alive"
through failure of insulation or by contact with energized parts shall be grounded by methods
approved by an authorized representative of the Secretary." The basis for the violation was that
the ground leads in the 16/3 control circuit wire had been cut off, rather than connected. As a
consequence, when the power cable to the belt starter box was disconnected, the box was no
longer grounded, even though the 480 volt power source remained in the box. Ex. Jt.-2.

The Violation S&S

 As noted in the discussion of Order No. 7476999, the leads for the ground wire in the

16/3 control circuit had been cut off, rather than connected, at the time the circuit was installed.
The result was that when the power cable for the belt drive starter box was disconnected, the box
was no longer grounded. Yet it could, and possibly did, become "alive" through contact with the
energized control circuit. The failure to establish and maintain a ground for the starter box,
which could become "alive" because of the presence of an energized circuit, created a substantial
possibility that a serious injury would result, and was a causative factor in Caudill's death.
Respondent does not dispute those elements of the charge. Its challenge is to the unwarrantable
failure designation.

Unwarrantable Failure

 The Secretary's primary argument is that the improperly installed control circuit had

existed for nearly six weeks and that it should have been discovered during weekly electrical
examinations, but that Respondent had no system of assuring that the examinations were being
conducted and, in fact, the booster pump and control circuit had not been inspected.18 Blue
Diamond counters that the improperly wired circuit presented a danger only when the head drive
power source was disconnected, that the defect was not obvious and may not have been
discovered during a weekly electrical examination, and that it was not unreasonable for Blue
Diamond to have relied upon its certified electricians to have properly installed the cable.19

 Respondent correctly points out that it was only when the belt drive's power cable was

disconnected, shortly before the accident, that the belt starter box ceased to be grounded.
Technically, therefore, the failure to ground violation existed only for a few minutes prior to the
accident, even though the control circuit wire had been improperly installed for six weeks.
However, on the facts of this case, it is the length of time that the wiring defect existed that
should be considered in evaluating Respondent's negligence. The fact that the defect did not
result in an actual grounding violation until later should not be considered a mitigating factor,
especially since the defect could have been corrected at any time during the six weeks preceding
the accident. As noted above, I have found that the unconnected ground leads would most likely
have been discovered during a reasonably thorough weekly examination. That is true even
though Respondent may have been entitled to rely upon its certified electricians to have properly
installed the control circuit. Respondent was not obligated to double-check the installation to
assure that it had been done properly. Tr. 626. Certified electricians are not trainees. They are
expected to work independently. Tr. 578-79. However, reasonable reliance on an electrician's
expertise does not justify or excuse Respondent's indifference to the conduct of weekly electrical
examinations.

 Respondent's argument that the conduct that the Secretary seeks to sanction through this

violation is, in essence, the same as that cited in Order No. 7476999, bears more weight. It was
the grounding defect that was a major factor in elevating the seriousness of that violation and
establishing the causal connection between it and the fatality. Premising an unwarrantable failure
finding for this violation on the very same failure to inspect, discover and correct the grounding
violation, would, in essence, penalize Respondent twice for exactly the same conduct. While the
violations are not legally duplicative, they are largely duplicative in practical terms, and I decline
to find an unwarrantable failure with respect to this violation. Rather, I hold that Respondent's
negligence was moderate.20

Order No. 7478001

 Order No. 7478001 alleges a violation of 30 C.F.R. � 75.904, which requires that,

"Circuit breakers shall be marked for identification." The basis for the violation was that the
circuit breaker on the power center controlling the booster pump, where the pump's power cable
was connected, specified only that it controlled the pump, and did not reflect the fact that it also
supplied power to a set of contacts in the belt starter box. Ex. Jt.-4.

The Violation S&S

 It is undisputed that the pump's circuit breaker was labeled "pump."  Tr. 346, ex. R-5.

The cable connector for the belt drive, the #9 head drive, was plugged into a circuit breaker
labeled "#9 head drive," which Stanfield agreed was proper. Tr. 430. He explained that the
violation was issued because the pump's circuit breaker should have been labeled "pump and #9
head drive" to disclose that it supplied power to both pieces of equipment. Tr. 346-49. The
violation was determined to have been a causative factor in the fatality because it was determined
that proper labeling of the pump's circuit breaker would have "alerted" electricians performing
weekly exams or working on the equipment that there was a second power source to the belt
starter box. Tr. 349. It was classified as an unwarrantable failure because Collins knew about
the control circuit and should have assured that the pump circuit breaker was properly labeled.

 Blue Diamond contends that the circuit was properly labeled and that there was no

violation. Alternatively, it contends that it did not have fair notice of the Secretary's
interpretation of the regulation. It also challenges the assertion that the violation was a causative
factor of the fatality and the unwarrantable failure designation. Respondent relies upon the
testimony of James W. Oakley, Sr., MSHA's electrical supervisor for District 7, who described
the use of pump control circuits wired to a "smoke roller" or similar device that would close a
switch energizing the pump when a belt started.21 He testified that such arrangements were quite
common, and that in such instances the pump circuit breaker was simply labeled "pump" or
"pump circuit," and it was not necessary to add "and smoke roller" to the label. Tr. 580-83. In
those situations, however, the control circuit was not wired into another piece of equipment with
its own power source. It was simply a start/stop switch that was located a distance from the
equipment. Tr. 588-89. He had never seen a situation where the control circuit was wired to
contacts in a belt starter box, a piece of equipment that had its own power source. Tr. 580. It
was his opinion that, because the control circuit supplied 480 volts of power to both the booster
pump and the belt starter box, it should have been labeled as supplying both pieces of equipment.
Tr. 585. He also testified that he had encountered situations where a circuit was supplying power
in the range of 480 volts to two different locations, and that he had required both pieces of
equipment to be identified on the circuit breaker, as well as on the cable connector and the
female receptacle. Tr. 584.

 On balance, I find that the Secretary has carried her burden of proof with respect to this

violation. The plain wording of the regulation requires that circuits be marked for identification,
i.e., that the piece or pieces of equipment to which they deliver power must be identified. There
is no dispute that the booster pump circuit supplied power to both the pump and to the #9 head
drive's starter box. I can conceive of no reasonable interpretation of the regulation that would
allow an operator to omit either piece of equipment from the label. I also find that the plain
wording of the regulation provides adequate notice that labels for circuits that supply power to
two pieces of equipment, as opposed to a remotely located switch, should identify both pieces of
equipment. "[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." Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). While the Secretary does
not rely upon any published interpretations of the standard addressing similar situations, it
appears that the standard has been consistently enforced, at least from the limited evidence in the
record.22

 Respondent does not argue that the violation, if proven, was not S&S.  In a general sense,

failure to properly label a circuit would create a reasonable possibility that a serious injury would
result. Here, however, the deficient label was located on the side of the power center opposite
the man door through which its enclosure was accessed. Moreover, while the power center was
relatively close to the booster pump and head drive, it was separated from that area by a concrete
block brattice wall. Ex. P-3. To view the pump's circuit breaker, someone in the area of the
equipment would have had to travel through a man door, down about 10 breaks (approximately
900 feet), pass through another man door, travel back to the power center, through a man door
into its enclosure, and walk around to the opposite side of the power center. Tr. 65-67, 573.
Stanfield accurately described it as a "remote location." Tr. 430-32.

 The hazard, to which the violation contributed, was described by the Secretary as a miner

working on the belt starter box while it was still energized by the control circuit, just as Caudill
did. She further asserts that had "the circuit breaker been correctly marked, Caudill would have
known that the two pieces of equipment were interconnected." Sec'y Br. at 52. The latter
assertion must be rejected. There is no evidence that Caudill had performed any electrical
examinations or worked on the pump prior to July 20, 2001. While it appears that he entered the
power center's man door and removed the head drive's power cable from its properly labeled
circuit, it is highly unlikely that he would have walked around to the opposite side of the power
center to look at the pump's circuit breaker. He was unaware of the connection between the two
pieces of equipment and there would have been no reason for him to have done so. Moreover, in
light of the haste with which he approached the job, it is a virtual certainty that he did not take
the extra step of looking at the pump's circuit breaker. Had weekly electrical examinations been
performed as required, that electrician would have seen a proper label, and might have mentioned
it to Caudill, or others that may have passed it on to him. However, that is an extremely remote
possibility.

 On the facts of this case, I find that the violation was S&S, but that it was not a cause of

the fatality. Rather, it was reasonably likely to result in a fatality.

Unwarrantable Failure

 The Secretary's argument that the violation was a result of Blue Diamond's

unwarrantable failure is based upon the involvement of Collins, Blue Diamond's agent, who
failed to assure that the circuit breaker was properly labeled, and the fact that it had existed for
six weeks prior to the accident. I find that Collins was negligent in not taking steps to assure
that the pump's circuit breaker was properly labeled. However, while I have found that adding
the belt starter box to the pump's circuit breaker was required by the plain language of the
regulation, that conclusion is not so strongly compelled that his failure to do so can be equated to
reckless disregard. The use of control circuits employing smoke rollers, which is admittedly
treated differently under the regulation, is somewhat similar to the control circuit used here.
While the violation existed for some six weeks, it was not in an obvious location, and there was
nothing that should have prompted Collins to reconsider whether the circuit's label should have
been changed after the control circuit had been installed. I find that Respondent's negligence
was moderate.

Citation No. 7477000

 Citation No. 7477000 alleges a violation of 30 C.F.R. � 50.12, which requires that, "no

operator may alter an accident site or an accident related area until completion of all
investigations pertaining to the accident except to the extent necessary to rescue or recover an
individual, prevent or eliminate an imminent danger, or prevent destruction of mining
equipment." The basis for the violation was described in the Condition or Practice section of the
citation as:

      The site of an accident that resulted in the death of a mine electrician on
 July 20, 2001, was found to have been altered prior to the completion of all
 investigations and without MSHA approval.  It was determined that the site was
 altered due to the following: 1) the disconnect device (cat-head) which supplied
 power to the 20 HP booster pump had been disconnected at the 300 KVA power
 center and was lying on the mine floor, 2) the 16/3 cable extending from the
 booster pump to the #9 belt drive starting box had been cut at the pump start box
 location, 3) the 16/3 cable extending from the booster pump to the #9 belt drive
 starting box had been disconnected from the interlock on the vacuum breaker and
 had been pulled completely out of the belt box.  None of these conditions could
 have existed at the time of the fatal accident.  Mine management failed to preserve
 and secure the accident site.

Ex. Jt.-6.

 The violation was determined to be "Unlikely" to result in an injury, was not S&S, and

was the result of the operator's "Reckless Disregard" of the standard. The Secretary proposes a
civil penalty of $40,000.00 for this violation.

The Violation

 The accident scene was certainly altered after Caudill was electrocuted.  As configured at

the time of the investigation, there was no source of power to the belt starter box that could have
caused the accident. The cable connector for the booster pump had been pulled from the power
center, apparently after a hole had been knocked in the brattice. More significantly, the 16/3
control wire had been pulled from the belt starter box, and its end at the pump starter box had
been cut. The cut end had then been removed from the pump's box and the start/stop switch
wires had been twisted together so that the pump would run whenever its power cable was
plugged in and its disconnect switch was in the "on" position.

 Respondent does not dispute that these changes were made to the accident scene.

However, it argues that disconnecting the pump's power cable, which appears to have been
accomplished at Sam Combs' direction, was justified as a safety measure to eliminate an
imminent danger. Similarly, it argues that pulling the 16/3 cable from the belt starter box could
have been justified as eliminating an imminent danger. It does not attempt to account for the fact
that the cable was cut near its connection with the booster pump starter box, and argues that the
re-wiring of the pump switch is not included in the narrative of the citation. It also points to
testimony that the mine's manager of production, John Boylen, ordered that the scene be
preserved when he was advised of the accident.

 I find that the Secretary has carried her burden of proof with respect to this violation.

While the booster pump's power cable may have been disconnected in a reasonable effort to
make the scene safe, the elimination of the pump control circuit was done in such a manner that
it must have been a deliberate attempt to conceal the existence of the circuit. There is no direct
evidence in the record as to the identity of the person who pulled the 16/3 cable from the belt
starter box, cut the other end and re-wired the pump switch. Conley understood from statements
made during the investigation, that Coots pulled the 16/3 cable from the box, thereby
deenergizing it. Tr. 59. However, at the hearing, Coots testified that the cable he was talking
about was the data/phone cable, not the 16/3 control cable. Tr. 104. There is no evidence that
the 16/3 cable was pulled from the box in an attempt to eliminate an imminent danger, and there
is no evidence or plausible explanation that the other alterations were justifiable under the
regulation.

Negligence

 The Secretary's argument that the violation was the result of Blue Diamond's reckless

disregard is based upon her contention that both Coots and Sam Combs were supervisors, i.e.,
Respondent's agents, and that they altered the scene, directed that the scene be altered, or
permitted the scene to be altered. However, as explained in the discussion of Order
No. 7476996, Coots was not a supervisor or agent of Respondent. Consequently, any actions that
he took in altering the scene cannot be imputed to Blue Diamond. I agree with the Secretary's
argument that whoever pulled and cut the 16/3 cable and re-wired the pump switch most likely
was comfortable working with electrical equipment and clearly understood the wiring of the
control circuit. There may also have been some time that passed after the accident happened
before others were summoned to the scene. These factors tend to implicate Coots more than
Combs. Coots was alone at the scene until he summoned Combs. He was an electrician, who
would have been comfortable working with electrical equipment and, possibly, may have been
familiar with the control circuit. There is no evidence that Combs had any electrical expertise.

 Combs, a foreman, was Respondent's supervisor/agent.  However, aside from his

presence at the scene at various times, the evidence establishes only that he directed that any
power cables in the power center be disconnected. Tr. 177, 186-87. His intention was to assure
that all power sources in the area be eliminated, which Stanfield agreed would have been
legitimate under the regulation. Tr. 434. It is not clear whether his instruction resulted in the
booster pump's cable connector being pulled from the power center. Tr. 186-89.

 While I appreciate the Secretary's frustration in her inability to identify who altered the

scene, I cannot find that Respondent acted with reckless disregard. When advised of the
accident, Blue Diamond's higher level managers appropriately directed on-site personnel to
preserve the scene. While Combs might have exercised more control over the scene, the
significant alterations may already have been made by the time he arrived. In the highly charged
atmosphere that he was thrust into, Combs' focus was appropriately on Caudill and the attempts
to revive him. Respondent cannot be charged with reckless disregard for Combs' failing to
prevent alterations that he justifiably did not observe being made, even if they had been made
while he was on the scene. I find that Respondent's negligence was low.

The Appropriate Civil Penalties

 The parties stipulated that Blue Diamond is a large operator.  Its controlling entity, James

River Coal Company, is very large. Exhibit P-16 is a printout from an MSHA computer database
showing that Blue Diamond had paid 983 violations, five of which were specially assessed, over
the period December 3, 1999, to December 2, 2001. Blue Diamond presented some evidence of
limitations on its ability to make payments to vendors. Tr. 559-60. However, it makes no
argument in its brief that imposition of the proposed penalties would affect its ability to remain in
business. The gravity and negligence associated with the alleged violations are discussed above.

 Citation No. 7476996 was affirmed as a S&S violation and a cause of the fatal accident.

However, it was not the result of the operator's unwarrantable failure. Blue Diamond's
negligence was moderate. A civil penalty of $55,000.00 was proposed by the Secretary.
I impose a penalty in the amount of $10,000.00, upon consideration of the above and the factors
enumerated in section 110(i) of the Act.

 Order No. 7476998 was affirmed.  However, the violation was found not to be S&S, or to

have caused the fatality. It was also not the result of Blue Diamond's unwarrantable failure.
It was not negligent with respect to this violation. A civil penalty of $55,000.00 was proposed by
the Secretary. I impose a penalty in the amount of $500.00, upon consideration of the above and
the factors enumerated in section 110(i) of the Act.

 Order No. 7476999 was affirmed as an S&S violation that was the result of Blue

Diamond's unwarrantable failure. The Secretary proposed a civil penalty of $55,000.00 for this
violation. I impose a penalty in the amount of $55,000.00, upon consideration of the above and
the factors enumerated in section 110(i) of the Act.

 Order No. 7476997 was affirmed as a S&S violation and a cause of the fatal accident.

However, it was not the result of the operator's unwarrantable failure. Blue Diamond's
negligence was moderate. A civil penalty of $55,000.00 was proposed by the Secretary.
I impose a penalty in the amount of $10,000.00, upon consideration of the above and the factors
enumerated in section 110(i) of the Act.

 Order No. 7478001 was affirmed as an S&S violation.  However, it was not found to

have caused the fatality, and was not the result of Blue Diamond's unwarrantable failure.
Its negligence was moderate. A civil penalty of $55,000.00 was proposed by the Secretary.
I impose a penalty in the amount of $5,000.00, upon consideration of the above and the factors
enumerated in section 110(i) of the Act.

 Citation No. 7477000 was affirmed.  However, the operator's negligence was found to be

low, rather than reckless disregard. A civil penalty of $40,000.00 was proposed by the Secretary.
I impose a penalty in the amount of $10,000.00, upon consideration of the above and the factors
enumerated in section 110(i) of the Act.

                          ORDER

 Order No. 7476999 is AFFIRMED in all respects.  Order Nos. 7476998, 7476997 and

7478001, and Citation Nos. 7476996 and 7477000 are AFFIRMED, as modified, and
Respondent is directed to pay a civil penalty of $90,500.00 within 45 days.

Michael E. Zielinski

Administrative Law Judge

Distribution: (Certified Mail)

Melanie J. Kilpatrick, Esq., Wyatt, Tarrant & Combs, LLP, 1700 Lexington Financial Center,
250 West Main St., Lexington, KY 40507

MaryBeth Zamer Bernui., Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard
Jones Rd., Suite B-201, Nashville, TN 37215

/mh

FOOTNOTES:

1 The exact wording of Coots� reply is disputed.

2 There was a mine phone on the belt box, but the 20-volt data line to the box, including the phone line, had been cut.

3 Combs did not mention that he had ordered that any power be disconnected during the investigation. He testified that he recalled doing so only after receiving a subpoena to testify at the hearing. Tr. 187. He did not recall whether Hubbard reported back that he had disconnected any power cables. Tr. 189.

4 Robert Begley was called in that day because the second shift foreman had quit.

5 The "16" refers to the size of the conductors, and the "3" refers to the number of conductors. The three conductors in the wire are separately insulated by color-coded material. The conductors that carry current are colored white and black, respectively. The third conductor is a ground wire, which appears to have had a green insulating covering. Ex. P-9.

6 The pump increased water pressure to spray nozzles used for dust control. The water lines were somewhat fragile and tended to rupture if the pump was operated for lengthy periods. Since the high-pressure sprays were needed only when coal was actually being mined, the pump was wired so that it would operate with the head drive.

7 The 480-volt power was supplied in two phases. The potential from one phase to ground was 277 volts. Spanning both phases yielded a potential of 480 volts.

8 A significant and substantial ("S&S") violation is described in section 104(d)(1) of the Act as a violation "of such nature as could significantly and substantially contribute to the cause and effect of a coal or other 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." Cement Div., Nat�l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981); see also U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985); Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984); Austin Power, Inc. v. Sec�y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

9 Coots was identified in the Report of Investigation as one of Blue Diamond�s "principal officers." Ex. P-1, p.4. The title ascribed to Coots on the time sheet was apparently the sole basis for that determination.

10 Collins testified that Coots was given the title of chief electrician in order to justify a slightly higher rate of pay, because experienced electricians were difficult to retain. Tr. 490-91.

11 Electrical equipment is required to be examined weekly by a qualified person. 30 C.F.R. �� 75.512 - 75.512-2.

12 The parties stipulated that the booster pump had been installed on or about June 5, 2001.

13 Coots knew that booster pumps were typically wired so that they would run when the belts ran. However, in his experience, that was accomplished by use of a "smoke roller," a roller with a mercury switch that closed when the moving belt caused the roller to spin. Tr. 87-88, 11418.

14 Coots testified that he left Blue Diamond in October of 2001, for a "better job." Tr. 78. At the time of the hearing, he was working as an electrician, apparently in a non-supervisory position. Tr. 76. Had he been a supervisor, as the Secretary contends, it would be more likely that he would have remained in supervisory positions.

15 The degree of Coots� negligence is a contested issue rendered moot by the finding that he was not acting as Blue Diamond�s agent at the time. The Secretary argues that Coots was not aware of the control circuit. He knew that the power cable to the belt box had been disconnected and had reason to believe that there was no power on the box. Only a week earlier, Caudill had pretended to encounter power. Coots� reaction to Caudill�s comment, under the circumstances presented here, would appear to be a tenuous foundation for her reckless disregard argument.

16 In fact, there was a mine wiring map that should have depicted the control circuit. However, it had not been kept up-to-date, and did not reflect the presence of the control circuit at issue, a violation for which Respondent was separately cited.

17 Respondent cited MSHA�s Program Policy Manual ("PPM") to support its assertion that weekly examinations are intended to detect deterioration of equipment through neglect, abuse or normal use. Resp. Br. at 21. The Secretary moved to strike references to the PPM because it was not admitted as evidence at the hearing. I will not consider references to the PPM in this decision. However, Respondent�s witness, Kenneth P. Katen, a safey consulting expert, testified that the PPM stated that "the examination is to insure that there are no hazards that would have accrued due to abuse, neglect, or for that matter, even normal use of the equipment." Tr. 618. That would also be a logical purpose of repeated weekly examinations.

Respondent also asserted that MSHA had performed a regular inspection in July of 2001, and had not cited the missing ground connections. However, there is no evidence that MSHA inspected the booster pump during the six weeks that it had been installed. While an inspection may have been conducted in July 2001, as Andy Fields, Blue Diamond�s safety director, indicated, due to Respondent�s large size, such inspections were "basically continuous." Tr. 555.

18 The Secretary initially argues that Blue Diamond acted in a highly negligent manner when it allowed an employee to install the control circuit without a ground. However, the identity of the electrician who installed the control circuit was never determined, and the negligence of an employee, as opposed to an agent, cannot be imputed to Respondent.

19 Blue Diamond also attacks certain wording in the body of the order to the effect that the booster pump was not grounded and its on/off switch had been bypassed. Both points have merit. However, the order makes clear that the violation is based upon a failure to ground the belt starter box while the 480 volt control circuit supplied power to it. There was no confusion on the bases for the violation at the hearing.

20 If this violation could properly be categorized as an unwarrantable failure, then a substantial reduction in the proposed penalty would be in order, for the same reason.

21 Collins testified about a situation where kill switches on a continuous miner and a carrier were interlocked, but not so-labeled. Tr. 478. However, that wiring arrangement was not explained in any detail, and that testimony has virtually no probative value with respect to this violation.

22 In Oakley�s experience, situations where one circuit supplies power to two pieces of equipment are uncommon, but, when encountered, he has required double labeling. Collins testified that the wiring of the booster pump�s control circuit to the belt starter box was common at Blue Diamond, and had been employed at other mines. Tr. 449. However, Coots testified that control circuits for booster pumps at Blue Diamond were usually wired through a smoke roller or other device. Tr. 114. Jeffrey Begley testified that he knew about the control circuit and that he had seen pumps wired that way in other mines. Tr. 220, 232. I find that the wiring of pump control circuits to belt starter boxes was not a common practice, as Collins claimed.