.
UNIQUE ELECTRIC
April 23, 1997
WEST 95-333-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                         April 23, 1997

SECRETARY OF LABOR,             :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :    Docket No. WEST 95-333-M
               Petitioner       :    A.C. No. 04-03425-05503 TIR
                                :
          v.                    :
                                :    Washington Mine
UNIQUE ELECTRIC,                :
               Respondent       :


                            DECISION

Appearances:  Jan M. Coplick, Esq., Office of the
              Solicitor, U.S. Department of Labor, San
              Francisco, California, for Petitioner;
              Kim Warnock, Owner, Unique Electric, Shasta Lake
              City, California,
              for Respondent.

Before:  Judge Manning

     This case is before me on a petition for assessment of a
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Unique
Electric, pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  815 and 820.  The
petition alleges one violation of the Secretary's safety
standards.

     A hearing was held in Redding, California.  The parties
presented testimony and documentary evidence, and the Secretary
filed a post-hearing brief.  Unique Electric relies upon the
hearing record.

                         I.  BACKGROUND

     At about 6:30 p.m. on September 5, 1994, Henry E. Feutrier,
General Manager of the Washington Mine, went into the mine to
check a pump on sub-level 2.  He entered the mine alone and no
one else was in the mine at that time.  The following morning,
miners traveled underground to commence work.  Two miners
discovered Mr. Feutrier face-up under the water.  His body was
removed from the mine and the appropriate authorities were
notified of his death including the California Division of
Occupational Safety and Health ("Cal/OSHA") and MSHA.

     At the time of the accident, the Washington Mine was a
small, underground gold mine in Shasta County, California, that
employed about six people.  It was operated by the
Washington/Niagara Limited Partnership ("Washington/Niagara").
MSHA conducted an investigation of the accident with Cal/OSHA and
concluded that Mr. Feutrier sustained an electrical shock and
subsequently drowned.  (Ex. S-1 at 74).  MSHA's accident
investigation report stated:

          The accident occurred because the neutral bar inside the
          breaker panel enclosure was not bonded to the grounded
          enclosure.  There was no equipment ground path between the
          grounded enclosure and the transformer neutral for the fault
          current so that the circuit breaker could trip.

Id. at 77.

     Washington/Niagara was issued a section 104(d)(1) citation
for a violation of 30 C.F.R.  57.18025 because Mr. Feutrier
entered the mine alone.  (Ex. S-1 at 78).  This citation was
subsequently vacated by MSHA.  (Washington/Niagara, WEST 95-310-
M, January 11, 1996 (unpublished order of dismissal)).  On
September 9, 1994, MSHA Inspector Arnold E. Pederson issued a
section 104(d)(1) citation to Unique Electric alleging a
violation of 30 C.F.R.  57.12025, as follows:

               The 1 HP submersible pump motor, located on sub-level
               2 drift was electrically energized from a secondary
               of a 230/120-volt single phase transformer that was protected
               by a double pole 20-amp circuit breaker.  The circuit breaker
               was located at a distribution panel at the track level wye.
               The neutral bar inside the breaker panel enclosure was not bonded
               to the grounded enclosure therefore there was no equipment ground
               path between the grounded enclosure and the transformer neutral
               for fault current so that the circuit breaker could trip.

               A fatal accident occurred at the underground Washington Mine
               on September 5, 1994, at approximately 8:00 p.m., when the
               general mine manager received an electrical shock while moving
               an energized 1 HP submersible pump and subsequently drowned in
               a flooded drift on sub-level 2.  This is an unwarrantable
               failure.

Inspector Pederson determined that the violation was of a
significant and substantial nature, and that Unique Electric's
negligence was high.  The cited safety standard provides, in
pertinent part, that all "metal enclosing or encasing electrical
circuits shall be grounded or provided with equivalent
protection."  MSHA proposes a penalty of $8,500 for the alleged
violation.

   II. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

     This case does not present any legal issues; both parties
agree that if the neutral conductor was not bonded to the ground
circuit, ground fault protection was not provided for the pump in
violation of the safety standard.  The parties, however,
vehemently dispute the facts.

     A.  Summary of Uncontested Evidence

     Some of the underlying facts were stipulated to by the
     parties through the Secretary's request for admissions, as
     set forth below. (Ex. S-1 at 4-11, 125-130).  Other facts
     were not contested at the hearing.  Unique Electric was a
     small, electrical contractor operated by Kim Warnock.
     Unique Electric was a sole proprietorship without any
     employees or assets.  Unique Electric was simply the name
     that Mr. Warnock used when he provided services to his
     customers; it was not a separate legal entity.  Mr. Warnock
     is a licensed electrician.  He was a mine "operator," as
     that term is used in section 3(d) of the Mine Act because he
     was an "independent contractor performing services ... at
     [a] mine."  30 U.S.C.  802(d).  Unique Electric performed
     electrical work for the mine between 1992 and 1994.

     Sub-level 2 of the mine contained water in the drift which
     necessitated continuous pumping.  Two pumps were used to
     remove the water.  The pump in question in this case was an
     ABS one-horsepower submersible pump (the "pump") that was
     used to pump water at the face area of the drift.  The pump
     was energized at 230-volts, single phase AC.  Power to the
     pump was supplied by a 480-volt AC single phase circuit from
     a 3 KVA transformer, with a secondary voltage of 230/120-
     volts AC, single phase.  The primary side of the transformer
     was wired directly to a 30-amp, 600-volt fused safety
     switch.  The secondary circuit of the transformer was
     connected to a metal-enclosed panel board which contained a
     double pole 20-amp thermal magnetic circuit breaker (the
     "circuit breaker").  The pump was electrically energized
     from the secondary side of the transformer that was
     protected by the circuit breaker.  The purpose of the
     circuit breaker was to protect the pump circuit from
     overcurrent, short circuits, and ground faults.  A three-
     conductor cable was connected to the circuit breaker and the
     green equipment grounding conductor, which was bonded to the
     metal enclosure.  A three-prong plug was attached to the end
     of the cord for the pump.

     After the accident, MSHA's investigation revealed that there
     were two ground faults in the circuit that supplied power to
     the pump (the "pump circuit").  One ground fault was in the
     pump.  This ground fault was caused by the pinching of the
     black conductor between the inside casing of the pump and
     the capacitor clamp.  A second ground fault was in the cable
     between the circuit breaker and the pump where the cable was
     damaged.  (Tr. 235-36).[1]  The second fault created a
     phase-to-phase fault.  (Tr. 259).
     Sub-level 2 of the mine was opened in 1994.  Unique Electric
     performed the electrical work that was needed to open sub-
     level 2, including installing the transformer and the
     electrical panel board that contained the circuit breaker.
     (Tr. 24-25).  Mr. Warnock worked alone in performing these
     tasks, made all the electrical connections, and conducted
     any tests to ensure that the connections were properly made.
     Mr. Warnock first installed the pump on a 110-volt circuit
     that was protected by a ground fault circuit interrupter ("
     GFCI").  (Tr. 26, 110-11).  That circuit would not work
     because the pump overloaded the circuit thereby tripping the
     GFCI.  Id.  The pump was also designed to function at 230-
     volts, so Warnock rewired the pump for that voltage and
     installed it in the 230-volt circuit about one month prior
     to the accident.  (Tr. 26, 101).

     MSHA's investigation into the accident was conducted in two
     phases.  Inspector Pederson investigated the accident at the
     Washington Mine.  After his site inspection was completed,
     the pump and pump cable were sent to MSHA's Denver Safety
     and Health Technology Center, where it was examined by
     Terrance Dinkel, an electrical engineer.

     The pump was an industrial, submersible pump, but it was
     designed to be suspended in a bore hole or well casing, not
     moved from place to place.  (Tr. 264-66, 427-28).  The pump
     was purchased by Washington/Niagara without consulting Mr.
     Warnock.  It was the practice of Washington/Niagara to move
     the pump around in the water as needed.  The pump was not
     equipped with an on/off switch and Washington/Niagara
     personnel would move the pump in the water while it was
     energized.  Employees would wade into the water while
     holding the energized pump.  (Tr. 113, 115).  Sometimes the
     water was chest deep.  Id.  It is presumed that Mr. Feutrier
     sustained an electrical shock while moving the pump and
     subsequently died as a result of drowning.  The cable to the
     pump was badly damaged.  Washington/Niagara personnel
     apparently pulled the cable over the rocks when moving the
     pump.  The pump was moved prior to blasting and when it
     needed to be repositioned in the water.

     B.  Arguments of the Parties

     The Secretary contends that when Mr. Warnock installed the
     transformer and the panel board, he neglected to properly
     ground the system.  As a consequence, when the pump was
     installed, the metal casing for the pump was not grounded.
     As evidence, she points to the fact that the neutral link
     was not connected to the neutral bar in the panel board.
     She also relies on the fact that when Inspector Pederson
     tested the circuits at the panel board, his ohmmeter
     indicated that the neutral circuit was an open circuit.  The
     Secretary also contends that when Mr. Warnock rewired the
     pump for 230-volts, a black current carrying wire was
     inadvertently crushed against the casing of the pump when it
     was put back together.  The bare conductor contacted the
     casing of the pump creating a ground fault.  She argues that
     the ground fault was not detected at that time because the
     circuit was not grounded at the panel board.  The Secretary
     maintains that when Mr. Feutrier moved the pump on the
     evening of September 5, a second ground fault occurred in
     the cable to the pump.  Because the circuit was not properly
     grounded, the circuit breaker did not trip.

     Mr. Warnock disputes the Secretary's contentions.  He
     testified that when he installed the transformer he grounded
     the center tap of the secondary side of the transformer to
     the frame of the transformer and connected the frame of the
     transformer to the grounding bar in the panel board.  (Tr.
     35-40, 65, 84-89, 350-52).  He stated that he did not
     connect the neutral link in the panel board with the neutral
     bar because the system was grounded in the transformer.  He
     stated that he tested the transformer before it was put into
     service and determined that it was grounded.  (Tr. 40, 402-
     03).  Mr. Warnock also testified that after he converted the
     pump from 110-volts to 230-volts, he tested the pump with an
     ohmmeter.  (Tr. 27).

     Mr. Warnock testified that the test Inspector Pederson
     performed to determine if the circuit was grounded was
     invalid.  He contends that Inspector Pederson fumbled around
     with his ohmmeter and kept pushing buttons until he got the
     result he wanted.  (Tr. 57, 104, 358-60).  He believes that
     at the time he installed the pump, the circuit was grounded
     and the pump did not contain a ground fault.

     Mr. Warnock maintains that when he was called to install the
     pump, he advised Feutrier that the pump was not designed to
     be moved around.  (Tr. 74-75, 100, 372).  He states that he
     told Mr. Feutrier that a compressed air pump would be more
     appropriate because air lines were already installed in sub-
     level 2.  Id.  He also stated that he recommended that an
     on/off switch be installed for the pump.  (Tr. 74-75, 100,
     277-79).  Further, he testified that the cable used to power
     the pump was not strong enough to withstand being pulled
     over rocks when the pump was moved.  Id.

     Mr. Warnock states that when he converted the pump to 230-
     volts, there was no ground fault in the pump.  He contends
     that he tested the pump after the work was completed and no
     ground faults were present.  (Tr. 357).  In addition, he
     states that miners holding the pump in the water would have
     been able to feel electric current if there had been a
     ground fault, even if they did not receive a strong electric
     shock.  (Tr. 370, 374).  He believes that the ground fault
     in the pump developed over time as the pump was moved about.
     Warnock maintains that the cable to the pump was seriously
     damaged by Washington/Niagara employees as they pulled it
     over the rocks.  (Tr. 75-76, 79, 356, 375, 412).  He
     believes that the grounding wire in the cable was severed at
     some point during this period.  (Tr. 375-76).  He thinks
     that the ground fault in the pump and the ground fault in
     the cable developed after he installed them.  Thus, he
     believes that Mr. Feutrier received an electric shock
     because the ground wire in the cable had been severed
     preventing the circuit breaker from functioning.

     C.  Analysis of the Issues.

          1.  Violation of Section 57.12025

          Mr. Warnock testified that he performed electrical work at
          the mine on an as needed basis.  (Tr. 41).  He did not
          have a contract with Washington/Niagara, but would come
          to the mine to perform a specific task when called by
          mine personnel.  (Tr. 99-102).  Thus, he did not have
          overall responsibility for or authority over the mine's
          electrical system.  Ms. Mary Lou George, the office
          manager for the mine, testified that Mr. Warnock had
          broad authority with respect to the mine's electrical
          system.  (Tr. 304).  I agree with Ms. George that when
          Mr. Warnock was called to do electrical work at the
          mine, Washington/Niagara relied upon his expertise to
          perform the task in a workman-like manner.
          Nevertheless, I find that he only had authority over
          the specific tasks that he was called upon to perform.
          In this instance, he was instructed to install the
          transformer and pump in Sub-level 2, along with the
          associated wiring.  Mr. Warnock did not purchase the
          pump nor does it appear that anyone from
          Washington/Niagara asked for his advice with respect to
          the type of electric pump that should be purchased.  He
          was simply given the pump and told to install it.
          Accordingly, Mr. Warnock can be held liable for any
          violations of the safety standards that occurred at the
          time he installed the transformer and pump, but he
          cannot he held liable for any violative conditions that
          developed after their installation.

          As stated above, the Secretary relies on three facts to
          establish a violation.  First, she relies on the fact
          that the neutral link was not connected to the neutral
          bar in the panel board.  By itself, this fact does not
          establish a violation.  Mr. Warnock testified that he
          bonded the center tap on the secondary side of the of
          the transformer to the frame of the transformer and the
          frame of the transformer to the ground bar on the panel
          board.  There is no dispute that if this bonding had
          been completed, the pump circuit would have been
          grounded in accordance with the requirements of the
          safety standard.  (Tr. 156-57, 187-88, 218-19, 257).
          Inspector Pederson did not look inside the transformer
          to see if the circuit was grounded at that location.
          (Tr. 157, 204).  Accordingly, the fact that the circuit
          was not grounded at the panel board does not establish
          a violation.

          The Secretary also relies on the fact that the circuit
          breaker did not trip when the pump was first energized
          and placed in the water.  She believes that Mr. Warnock
          created a ground fault when he replaced the casing on
          the pump after converting it to 230-volts.  The
          Secretary reasons that if the circuit had been
          grounded, the circuit breaker would have tripped soon
          after the pump was installed.  (Tr. 180).  Because the
          circuit was not grounded, the fault current was not
          able to get back to its source (the transformer) and
          the breaker did not trip.  Mr. Warnock argues that if
          that were the case, persons handling the pump would
          have been able to feel the fault current.  For example,
          a person holding the energized pump while entering the
          water would feel at least a trickle of power if not an
          electric shock.  The Secretary's witnesses did not
          agree with this statement and took the position that it
          is possible that employees would not know that there
          was a ground fault in the pump.  (Tr. 182, 201-02,
          239).

          I find that it is highly likely that employees handling the
          pump in the water would have felt the current under the
          circumstances set forth by the Secretary.  Fault
          current seeks the path of least resistance to its
          source, in this case the transformer.  A person
          standing in water with some mineral content holding the
          metal casing of an ungrounded pump that has a ground
          fault in the casing will act as a conduit for at least
          some current trying to reach the transformer.  I
          believe that he would feel at least a trickle of
          current.  Many employees had been in the water with the
          pump, including Mr. Kevin Baldwin.  (Tr. 27).  Mr
          Baldwin testified that he walked chest high into the
          water while holding the energized pump soon after it
          was installed and that he did not receive any
          electrical shocks.  (Tr. 112-15, 119).  I credit the
          testimony of Mr. Warnock and Mr. Baldwin in this
          regard.  Accordingly, I find that the fact that the
          circuit breaker did not trip soon after the pump was
          installed does not establish that it was not grounded.
          The circuit breaker may not have tripped after the pump
          was installed because the ground fault in the pump
          developed later.  Although a wire was pinched when Mr.
          Warnock reassembled the pump, it is not clear when the
          fault occurred.  The conductor may have come into
          contact with the metal casing at a later time.

          The third factor that the Secretary relies upon to establish
          a violation is the ohmmeter tests conducted by
          Inspector Pederson.  He tested the pump circuit twice
          with an ohmmeter and determined that it was an open
          circuit, meaning that it was not grounded.  Mr. Warnock
          disputes Inspector Pederson's findings.  He believes
          that the inspector did not conduct a proper test and
          the fact that Inspector Pederson "fumbled" with the
          meter indicates that he did not know how to use it or
          that he set the controls on the meter so that it would
          show that the circuit was not grounded.  (Tr. 57-60).
          He further stated:

          My reason for contesting this [citation] is because I know
          this system was bonded.  If Mr.  Pederson would
          have taken the time to take that cover off that transformer,
          follow those wires down, he would have seen that the thing was bonded.

          But he saw that the strap was not connected to that neutral bar.
          And right there, boy, they think they got the whole case solved....

(Tr. 368).  Thus, Mr. Warnock believes that when the inspector
saw that the neutral link (the strap) was not connected to the
neutral bar, he concluded that the pump circuit was not grounded
and conducted the remainder of the inspection in a manner to
support this conclusion.

     Inspector Pederson is an experienced MSHA inspector, who
specializes in electrical inspections.  (Tr. 131).  When he
opened the door to the panel board, he observed that the neutral
link was not connected to the neutral bar.  Inspector Pederson
then used his meter to take a continuity test between the neutral
bar and the frame of the panel board, the neutral link.  (Tr.
157-58).  The test show on open circuit, which indicates that the
pump circuit was not grounded.  Id.  He performed this test at
the panel board and at the transformer, which were adjacent to
each other.  (Tr. 157-58, 177).  The first time he conducted
these tests he was accompanied by MSHA Inspector Eugene Lopez,
Cal/OSHA Associate Safety Engineer Gordon Taylor, and Mike
Burgess, the acting general manager of the mine.  (Tr. 158).
Inspector Pederson testified that his meter was functioning
properly and that the meter's two probes had good contact with
the circuit.  (Tr. 161, 172).  He testified that his tests showed
that the neutral was not connected to the ground.  (Tr. 174).
If the circuit was bonded in the transformer, the test would have
indicated that the circuit was grounded.

     He tested the circuit at the panel box again in the presence
of Mr. Warnock.  (Tr. 159, 174-75).  The test results showed that
the pump circuit was not grounded.  Id.  He does not recall any
conversation with Mr. Warnock.  (Tr. 175, 183).  Inspector
Pederson used a multi-meter tester.  This tester can be used for
many purposes, including measuring resistance, voltage, and
testing electronic devices.  When conducting continuity tests,
the meter has a number of scales.  Inspector Pederson denies that
he fumbled with his multi-meter, but admits that he adjusted the
scale several times when he conducted the continuity test for Mr.
Warnock.  (Tr. 164-68, 173, 204-209).  A continuity test with the
multi-meter is only meaningful when it is set at the appropriate
scale.  (Tr. 170-71, 249).  He has been using this tester for
about 18 years.  (Tr. 203).  I find that Inspector Pederson knew
how to properly use his multi-meter when testing for continuity
in circuits.

     Mr. Warnock testified that when he questioned Inspector
Pederson about his test of the circuit, Inspector Pederson cut
him off by stating "it wouldn't make any difference in this case
anyway."  (Tr. 51, 53, 92).  Mr. Warnock testified that he was
about to explain to Inspector Pederson that the circuit was
grounded in the transformer when the inspector cut him off.  Id.
Mr. Warnock interpreted the inspector's statement to mean that
grounding of the circuit did not have anything to do with the
case, so Warnock kept quiet.  (Tr. 65-67).  Mr. Warnock believes
that the circuit breaker would not have tripped in any event
because the pump was in a large body of water, which would have
dissipated the current.  (Tr. 67, 97).  I credit the testimony of
Mr. Dinkel that the circuit breaker would have tripped if the
pump were properly grounded, even though the pump was in a large
body of water.  (Tr. 237-39, 242).  As stated above, fault
current will seek the most efficient route back to the
transformer, which would be the copper ground wire if it is not
broken.  Although Warnock apparently interpreted Inspector
Pederson's statement as an attempt to cut him off, I believe that
their conversation was simply a miscommunication.

     Based on the tests that Inspector Pederson made with his
multi-tester, I find that the pump circuit was not properly
grounded at the time of the accident in violation of 30 C.F.R. 
57.12025.  As stated above, Unique Electric was only responsible
for the work that it performed at the mine.  Thus, if Mr. Warnock
properly grounded the pump circuit when he installed the pump, he
can not be charged with a violation.  Washington/Niagara was
responsible for the conditions in the mine and if the grounding
system was damaged in the interim, Mr. Warnock can not be held
responsible.  Based on the evidence presented in this case, I
find that it is highly unlikely that a grounding system in the
transformer would have been damaged.  Mr. Warnock testified that
he grounded the pump circuit by bonding the neutral to the frame
of the transformer at the time the transformer was installed.
The transformer is a stationary piece of equipment that is not in
an area that would be subject to damage.  It was a few feet from
the panel board.  The photographs introduced in this case do not
show any damage.  (Ex. R-1).  While it is possible that the wire
bonding the transformer came loose, such an event is extremely
unlikely in this case and there is no evidence that it had.  Mr.
Warnock's test of the transformer following its installation must
not have revealed the problem.  Accordingly, I find that the pump
circuit was not properly grounded at the time Warnock installed
the pump at 230-volts about a month prior to the accident.
Therefore, Unique Electric violated the safety standard.

     In theory, the Secretary did not bring this case against
Unique Electric to establish responsibility for the fatality.
(Tr. 28, 414).  Statements in MSHA's accident investigation
report and the amount of the proposed penalty, however, indicate
that the Secretary believes that Mr. Warnock was responsible for
the accident.  Many events led up to this tragic accident, in
addition to the events discussed above.  As stated above,
Washington/Niagara received one citation as a result of the
accident, which was subsequently vacated by the Secretary.

     First, Mr. Feutrier was alone at the time he received the
electric shock.  Even if the circuit breaker tripped, he could
have received a serious electrical shock and, with no one to pull
him out of the water, he may have drowned in any event.  Second,
the cable to the pump was seriously damaged because it had been
pulled over the rocks by Washington/ Niagara employees. (Tr. 197-
200, 217, 224-25, 255, 269; Ex. S-1 at 56-63).  It is possible
that the ground wire in the circuit was sufficiently severed that
the circuit breaker would not have tripped even if the circuit
was grounded at the panel board.  (Tr. 209-12, 375).  Third,
Washington/Niagara employees were holding the energized pump
while standing in deep water when it was moved.  In moving the
pump, the cable was often pulled over rocks, which seriously
damaged it.  One does not need to be an expert in mine safety or
electricity to recognize that this practice was inherently
dangerous.

     Finally, Ms. George called Mr. Warnock sometime in July 1994
to ask him to perform the annual continuity tests for the
grounding systems at the mine, as required by 30 C.F.R. 
57.12028.  (Tr. 289).  She left messages for him on a number of
occasions.  (Tr. 289).  At one point in mid-August, Mr. Warnock
told Ms. George that he would perform the tests before the Labor
Day weekend.  (Tr. 295).  This test on the pump circuit would
have revealed that the circuit was not grounded.  Mr. Warnock
arrived at the mine the day after Labor Day to perform the test.
(Tr. 48, 296-97).  Mr. Warnock testified that he could not get
out to the mine to perform the test any earlier because he was
"very busy" with other work.  (Tr. 44).  The accident occurred on
Labor Day.

          2.  Significant and Substantial

          I find that the Secretary established that the violation was
          of a significant and substantial nature.  The failure
          to ground the metal parts enclosing electrical circuits
          creates a discrete safety hazard.  There is a
          reasonable likelihood that this hazard will result in
          an injury of a reasonably serious nature.  The parties
          do not dispute that a serious hazard is created when a
          circuit is not grounded.  (Tr. 81).

          3.  Unwarrantable Failure

          The Secretary did not present any evidence with respect to
          the unwarrantable failure allegation contained in the
          citation.  The Secretary's brief does not mention the
          unwarrantable failure allegation.  The Secretary bears
          the burden of proof on this issue.  Accordingly, the
          unwarrantable failure allegation is vacated and the
          citation is modified to a section 104(a) citation.

     D.  Appropriate Civil Penalty

     Section 110(i) of the Mine Act sets forth six criteria to be
     considered in assessing an appropriate civil penalty:  "the
     operator's history of previous violations, the
     appropriateness of such penalty to the size of the business
     of the operator charged, whether the operator was negligent,
     the effect on the operator's ability to continue in
     business, the gravity of the violation, and the demonstrated
     good faith of the person charged in attempting to achieve
     rapid compliance after notification of the violation."  30
     U.S.C.  820(i).

     Unique Electric has no history of previous violations of the
     Secretary's safety standards.  Unique Electric was very
     small.  Mr. Warnock is now employed by an electrical
     contractor that works exclusively at state and federal
     installations, so Unique Electric no longer exists.  Mr.
     Warnock will have to pay any penalty assessed.

     In Basin Resources, Inc., 19 FMSHRC 211 (January 1997), I
     held that if a mine operator is no longer in business and
     does not intend to return to the mining business, this fact
     should be taken into consideration in considering the
     ability to continue in business criterion.  I held that
     civil penalties are remedial, not punitive, and are designed
     to "induce those officials responsible for the operation of
     a mine to comply with the Act and its standards."  Id. at
     212 (citation omitted).  There is no question that Mr.
     Warnock is no longer performing electrical work at the
     Washington Mine or any other mine.

     I find that the violation was serious and that Unique
     Electric was negligent in failing to ground the pump
     circuit.  Mr. Warnock must have neglected to effectively
     bond the pump circuit in accordance with his normal
     practice.  The violation was abated in good faith.  Mr.
     Warnock connected the neutral link to the neutral bar in the
     panel board as soon as the mine was released from the
     section 103(k) order.  Based on the penalty criteria, I find
     that a civil penalty of $400.00 is appropriate for this
     violation.

                           III.  ORDER

     Accordingly, Citation No. 3910427 is MODIFIED to a section
     104(a) citation, the citation is AFFIRMED, as modified, and
     Unique Electric is ORDERED TO PAY the Secretary of Labor the
     sum of $400.00 within 40 days of the date of this decision.
     Upon payment of the penalty, this proceeding is DISMISSED.









                              Richard W. Manning
                              Administrative Law Judge

Distribution:


Jan M. Coplick, Esq., Office of the
Solicitor, U.S. Department of
Labor, 71 Stevenson St., Suite
1110, San Francisco, CA 94105-2999
(Certified Mail)

Kim Warnock, Owner, UNIQUE
ELECTRIC, 1136 Cedar Street, Shasta
Lake City, CA 96019 (Certified
Mail)

                              RWM


**FOOTNOTES**

[1]:    The   transcript   citations  in  this  decision  do  not
necessarily  reference  all  testimony   given  on  a  particular
subject.