FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

January 27, 2012

DECISION AND ORDER

Appearances:              Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois for Petitioner

Drew Miroff, Esq., Ice Miller, Indianapolis, Indiana for Respondent

Before:                        Judge McCarthy

I. Statement of the Case

            This case is before me on a petition for assessment of civil penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against Black Panther Mining, LLC (“Black Panther” or “Respondent”), pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). In my view, as expressed in pre-hearing conference calls, this case should not have been tried, but MSHA refused to back off the unwarrantable failure designation. Accordingly, unnecessary time and resources were devoted to this litigation.

            A single section 104(d)(1) Order dated August 17, 2010 remains at issue. The condition or practice alleged to be a significant and substantial (S&S) and an unwarrantable failure violation of 30 C.F.R. § 75.1725(c) is as follows:

Repairs or maintenance were being performed on the 2 Main South belt at crosscut number 2 without power removed from the drive motors and blocked against motion. The maintenance chief was observed with a chain hoist on two separate sections of belt frame ratcheting them together. Drive motors number 1 and number 2 were observed plugged into the power center at crosscut number 1 with the emergency stop switch for motor number 2 engaged. This violation is an unwarrantable failure to comply with a mandatory safety standard, and the maintenance chief has engaged in aggravated conduct constituting more than ordinary negligence.

Pet. Ex. 1. The gravity is alleged to be reasonably likely to result in an injury or illness that could be reasonably be expected to result in lost workdays or restricted duty, with one person affected. Negligence is alleged to be high. The proposed penalty is $2,000, the statutory minimum under section 110(a)(3)(A). The Order was terminated when the work on the conveyor belt was completed before the situation could be addressed.

            Respondent admits operator, mine, authorized representative, and interstate commerce status, but denies the violation and concomitant gravity, negligence, S&S, and unwarrantable failure findings and the validity of the civil penalty.

            An evidentiary hearing was held in Indianapolis, Indiana on November 7, 2011, after repeated conference calls failed to settle this matter. The parties introduced testimony and documentary evidence, and witnesses were sequestered. At the conclusion of the hearing, based on the credible testimony from each of the Respondent’s witnesses and the inability of MSHA Inspector, Anthony DiLorenzo, to testify from firsthand knowledge as to how the power system worked, I granted a “directed verdict” vacating the citation. I found that the power was turned off and the machinery was blocked against motion when Respondent’s maintenance chief, John Vennard, made the repairs at issue. Tr. 212.

            On the entire record, including my observation of the demeanor of the witnesses, and after considering the post-hearing briefs, I make the following:

                                                II.       Factual Background

            A.        Stipulated Facts

            The parties stipulated to the following facts.

            1. The Federal Mine Safety and Health Review Commission has jurisdiction over this proceeding.

            2. At all times relevant to these proceedings, Black Panther Mining, LLC's operations affected interstate commerce.

            3. At all times relevant to these proceedings, Black Panther Mining, LLC is owned and operated by the Oaktown Fuels Mine No. 1, which is located in Knox County, Indiana.

            4. The Oaktown Fuels Mine No. 1 is an underground mine for the extraction of bituminous coal.

            5. Black Panther Mining, LLC began underground mining at the Oaktown Fuels Mine No. 1 in April of 2007.

            6. If the citation and penalty proposed in this case are upheld, Black Panther Mining, LLC's ability to continue operations would not be threatened.

            7. Citation No. 8426631, which is the order at issue, was issued to Black Panther Mining, LLC on August 17, 2010, pursuant to section 104(d) of the Federal Mine Safety and Health Act of 1977.

            8. The subject citation was properly served upon an agent of Black Panther Mining, LLC.

            9. Maintenance chief, John Vennard, was performing maintenance on the 2 main south belt assembly at crosscut number 2 on August 17, 2010.

            10. At the time Mr. Vennard was performing maintenance on the 2 main south belt assembly, the belt's drive motors number 1 and number 2 were plugged into the power center at crosscut number 1.

            11. The emergency stop switch at the power center for drive motor number 2 was engaged.

            12. The emergency stop switch at the power center for drive motor number 1 was not engaged.

              B.        The Inspection

                        1.         MSHA’s Witness

            On August 17, 2010, MSHA’s certified mine inspector, Anthony DiLorenzo, visited Respondent’s mine with a trainee (T. Blair) to conduct an EO2 spot ventilation inspection. Tr. 37, 41, 44; P. Ex. 2, p. 2. DiLorenzo and Blair were accompanied underground by Respondent’s safety director, Matt Dowell. DiLorenzo made contemporaneous notes during the inspection, but otherwise I find that DiLorenzo’s testimony and recollection was not very reliable. Tr. 43, 47, 194; P. Ex. 2.

            DiLorenzo spent the majority of the inspection at the active section (MMU-003-004) of 2 Main South in an area where the roof had recently fallen near cross cut 16. Thereafter, DiLorenzo, Blair, and Respondent’s safety technician trainee, Bobby Cox, walked the 2 Main South belt from the tail piece out-by the belt drive, checking ventilation stoppings and air flow, and looking for coal dust or rock dust on surfaces. Tr. 42-43, 194; P. Ex. 2, pp. 1 and 3. DiLorenzo’s notes reflect the belt was down at that time. P. Ex. 2, p. 7.

             DiLorenzo initially testified that while walking the belt he saw Respondent’s maintenance chief, John Vennard, shift maintenance foreman, Jason York, and unit mechanic, Greg Simmons, ratcheting two pieces of the belt frame back together, with a standard chain hoist or come-along, in order to slide a cotter pin back into the structure. According to DiLorenzo, they were working both sides of the belt. Tr. 44-46, 96. DiLorenzo’s notes indicate that Vennard was performing the work and York and Simmons were standing in the area watching. P. Ex. 2, p. 9; but see id. at 11 noting “men working on belt.” Dowell was apparently still in the travel way entry when DiLorenzo made this observation. Tr. 46-47. I do not credit this testimony from DiLorenzo since he distanced himself from this testimony in subsequent testimony and the preponderance of the credible evidence indicates that Vennard and Simmons were performing the work and York was stationed at the belt master, as explained below.

            DiLorenzo testified with uncertainty that he probably walked within a yard of where Vennard was performing the work and probably asked how are you doing, what’s going on, but could not recall whether he had any conversation with or made eye contact with Vennard before heading towards the power center, as described below. Tr. 91-92. DiLorenzo observed that the chain hoist was attached to two separate sections of the belt stretcher (rail) and Vennard had his arm on the inside of the stretcher between the structure and the belt and was ratcheting the two sections of the rail together from outside the structure in order to insert a cotter pin that was missing. Tr. 55-56, 93-94, 95; see R. Ex. 7.

            DiLorenzo never saw anyone in contact with the belt. Tr. 96. According to DiLorenzo, York and Simmons were just observing, standing there waiting. Tr. 55-56. Based on his experience performing similar maintenance, DiLorenzo testified that it would take less than 30 minutes to ratchet two frames back together. Tr. 57.

            Subsequently, DiLorenzo testified that York and Simmons were just in the area and he did not see them perform any actual work. Tr. 57. On subsequent questioning from the Court during cross examination as to which side of the belt he saw York on, DiLorenzo testified that at one point in time York was on the off side of the belt (i.e., opposite the belt master), but “they were not just all standing in one location, they were moving around to different forms.” Tr. 88-89. I do not credit this testimony about York’s location. Rather, I find consistent with the credible testimony of each of Respondent’s witnesses, as set forth below, that Vennard posted York at the belt master and York did not leave that area. Thereafter, on further cross, DiLorenzo conceded that he never saw York or Simmons perform any work on the structure. Tr. 112.

            DiLorenzo testified that he observed Vennard for about one minute, more or less, and recalled that Vennard’s arm was inside the belt frame (over the structure) for about 10-15 seconds. Tr. 60, 92, 103. DiLorenzo testified that if the belt started while Vennard’s arm was inside the frame, the chain hoist possibly could have unlatched and whipped around striking Vennard, or Vennard could have been hit by the chain structure or the belt itself, likely causing cuts or lacerations to his arm. Tr. 59.

            DiLorenzo then continued walking out-by toward the belt drive and then walked toward the power center in cross cut 1. Tr. 48. He could not recall whether anyone was at the belt master when he walked to the power center. Tr. 58. He testified that the belt master in 2 Main South belt was about 120-150 feet away from the power center, which was located in cross cut 1 on the opposite side of the secondary escapeway. Tr. 58; see R. Ex. 8. DiLorenzo further testified that as he walked down the 2 Main South belt, he should have seen anyone who was posted at the belt master and would have annotated that in his notes. Tr. 58-59. His notes do not reflect that anyone was stationed at the belt master. P. Ex. 2. I give little weight to this testimony from DiLorenzo because his recollection was not impressive, particularly concerning where York was located, and the Secretary adduced no testimony concerning DiLorenzo’s practice, customary or otherwise, with regard to taking notes.

            Dowell rejoined DiLorenzo at the power center. Tr. 49, 110. At that location, DiLorenzo observed that the power cable for drive motor no. 1 and 2 were coupled into the power center, and the emergency stop (e-stop) for drive motor no. 2 was engaged, i.e., physically depressed to open the circuit, but the e-stop for drive motor no. 1 was not engaged. The belt was not running. Tr. 48, 80-81; see R. Ex. 1 and 2. Dowell confirmed that the power center circuit was open as one of the e-stops was engaged, and the manual off switch and e-stop at the belt master were also engaged. Tr. 203-05. Consistent with his training and experience, DiLorenzo testified that “power off” meant that the circuit breaker is open and the power couplings are removed from the power source. Tr. 49, 57, 65, 116.

            DiLorenzo rhetorically asked Dowell, “Am I seeing this correctly” or “Is this really what it appears to be?” DiLorenzo testified that it was obvious that the power cables were still coupled into the power center that was supplying power to the drive motors and only one circuit breaker was open. Tr. 50, 65. He could not recall what Dowell said, if anything, in response, but opined that Dowell’s facial expressions conveyed displeasure. Tr. 50. Dowell could not recall indicating any displeasure and does not recall arguing with DiLorenzo at this point. Tr. 206. When repeatedly asked by the Court what specific facial expressions he observed, DiLorenzo could offer nothing more than the opinion that Dowell was tight lipped. Tr. 51-53. DiLorenzo testified that he remained at the power center about 10-15 minutes. Tr. 92.

            DiLorenzo and Dowell then traveled from the power center back towards the belt line, which was about 90 feet away, where Vennard, York, and Simmons were stationed along the belt. DiLorenzo testified that he intended to remove all miners from the area until the power to the belt drive motors was turned off according to DiLorenzo’s understanding of MSHA policy. By the time DiLorenzo arrived, however, the work had been completed.

            The whole sequence of events lasted less than 10 minutes, but DiLorenzo testified in response to a leading question that the condition need not last a long period of time for an injury to occur because it would take just several seconds for someone to turn the belt back on. Tr. 55, 66. DiLorenzo testified that Vennard was not in a position to prevent anyone from starting the drive motor no. 1 at the belt master. Tr. 59.

            DiLorenzo testified that he spoke with Dowell and Vennard about the alleged violative practice and the potential action that he would be taking after checking his references. P. Ex. 2, p. 12; Tr. at 67-69, 97. DiLorenzo further testified that as he was leaving to return to the surface, the operator restarted the 2 Main South belt, but DiLorenzo did not see how this was done. Tr. 73.

            Once DiLorenzo returned to the surface, he reviewed the CFR and any PIBs, PILs or PPLs applicable to the standard, including P. Exs. 3 and 5. Tr. 69-70; P. Ex. 2, p. 12. P. Ex. 3 is Program Policy Letter No. PO8-V-01, effective March 18, 2008 through March 31, 2010. That PPL had expired at the time the instant Order was written on August 17, 2010. P. Ex. 4 is Program Policy Letter No. P11-V-01, effective February 8, 2011 through March 31, 2013, which post-dated the Order and clarified PPL PO8-V-01 in a manner not material here.

            PPL PO8-V-01, MSHA’s interpretation of the cited regulation (Tr. 76), provides in relevant part, as follows:

Purpose

This Program Policy Letter covers the MSHA policy concerning the requirements of Section 75.1725(c), Title 30 of the Code of Federal Regulations (CFR), in order to prevent injuries while machinery repairs or maintenance are performed. This policy letter addresses the meaning of 30 C.F.R. § 75.1725(c), and identifies a number of methods for complying with the standard.

Policy

      Section 75.1725(c) provides that "[r]epairs or maintenance shall not be performed on machinery until the power is off and the machinery is blocked against motion, except where machinery motion is necessary to make adjustments."

"Machinery" includes hydraulic jacks or cylinders, belt conveyors, longwall conveyors, and other machinery used in coal mines. "Repair" means to fix, mend, or restore to good working order. "Maintenance" means the labor of keeping machinery in good working order and includes clean-up, clearing jammed material or conducting examinations on or in close proximity to machinery.

Methods to comply with this standard to prevent inadvertent or unexpected motion include:

      1.         Opening the circuit breaker for the affected machinery, provided no energized parts or conductors are exposed, and placing the run selector switch for startup of the machinery in the "off" position. . . .

      2.         Opening the circuit breaker at the power center that supplies power for the affected machinery (30 C.F.R. § 75.900) and disengaging the power cable coupler that supplies power to the machinery (30 C.F.R. § 75.903).

      3.         Opening a manual visible disconnect switch, either within the circuit or onboard the machinery, (30 C.F.R. § 75.903) and securing the switch against re-energization. A control circuit start-stop switch does not constitute a manual disconnect.

      4.         In cases such as steeply inclined belt conveyors and suspended loads, when removing the power alone will not ensure against unintentional or inadvertent movement, the machinery shall be physically blocked, in addition to removing the power by one of the three methods described above. Physical blocking may be achieved by the use of such devices as bars, chocks, or clamps.

Other methods may be appropriate in particular situations to prevent unintentional or inadvertent movement. What method(s) is appropriate depends upon the circumstances and type of machinery. The critical determination is whether the method(s) used would effectively prevent motion. . . .

In addition, it is important to emphasize that restoring power prematurely while repairs or maintenance are ongoing places a miner performing that work in harm's way. Operators must prevent inattentive restarting and assure that repairs or maintenance have ceased before power is restored to the machinery. Preventive measures operators can take include locking and tagging out, clearance checks, or visible or audible alarms with built-in time delays before restart to warn the miner(s) performing the work so power will not be restored without the miner's knowledge.

See P. Ex. 3, pp. 1-2.

            DiLorenzo conceded that the standard does not require lock out and tag out and there were other methods to comply. Tr. 98, 111. On the other hand, DiLorenzo testified that the belt was electrically powered equipment because it receives power from two electric drive motors at the power center, which turns gears and pulleys to move the conveyor belt. However, he did not write a violation under 30 C.F.R. 75.511 because mechanical work was being performed on the belt, not electrical work on the belt drive motors. Tr. 120-21. In response to another leading question on direct, DiLorenzo testified that Respondent was working on a belt frame that contained a belt that actually could be moved by drive motors. Tr. 122. He further testified that if someone turned the power switch at the belt master to the “on” position, that would cause the motor on the closed circuit to run. Tr. 123.

             After reviewing his references, DiLorenzo wrote the instant Order and gave it to Dowell and Respondent’s operations manager, Brad Rigsby, while explaining why he had written the Order. Tr. 7-71; P. Ex. 2, p. 12. Di Lorenzo conceded that he did not know or inquire about what Black Panther’s training was concerning the restarting of belts that had stopped. Tr. 99, 100. DiLorenzo testified that even if he knew that Black Panther miners were trained not to restart a belt until they knew why it was stopped, he still would have written the unwarrantable failure order. In his view, Vennard, York, and Simmons just happened to be close to the belt master, but there could be other situations where work was performed farther away from the belt master where somebody could walk over and turn the untagged belt master switches on, despite training not to do so in situations when they did not know why the belt was down. DiLorenzo explained that not everyone does what they are trained to do. Tr. 100-01.

            DiLorenzo testified that he designated the violation as S&S because an injury was reasonably likely to occur. DiLorenzo arrived at this conclusion based on the fact that Vennard’s arm was inside the frame between the belt structure and the belt when power was not turned off, and nothing prevented the 2 Main South belt from being turned on, such as by a miner turning the switch at the belt master from “off” to “manual” or to “auto” (automatic) at the belt master. Tr. 60-61, 72.

            In designating the violation as an unwarrantable failure, DiLorenzo at first described Vennard’s conduct as intentional and “extensive” because he was the maintenance chief and an agent of the operator, who had performed maintenance on equipment without the power being shut off and in front of subordinates. DiLorenzo also considered the fact that Vennard had previously given DiLorenzo the impression that he knew or should have known the regulations, including the fact that one could not perform maintenance on equipment without the power being off. Tr. 61, 64-65, 108-09. In this regard, DiLorenzo testified that around June or July of 2010, he sat in on a safety talk that Vennard gave to third-shift personnel about turning power off and locking and tagging out machinery or equipment during maintenance or repair work. DiLorenzo described this talk as one of the best references to lock out/tag out that he had ever heard. Tr. 62-63, 104. DiLorenzo testified that during the talk, he recalled Vennard describing “power off” as being removed from the power source and locked out, although he did not recall Vennard speaking about belts, just equipment generally. Tr. 63, 104. DiLorenzo was not aware of any prior violations of 30 C.F.R. 75.1725(c) at this mine, nor was he aware of any notification by MSHA that Respondent needed to make greater efforts to comply with the standard. Tr. 66-67, 109-10.

            On cross examination, DiLorenzo testified that in his opinion, paragraph no. 2 of the expired PPL was not complied with because only one of two circuit breakers was open and it was his understanding that if one of the two drive motors was engaged, the belt could still move. Tr. 77, 102. DiLorenzo testified that when leaving for the surface, he observed the Respondent attempt to restart the 2 Main South belt after the repairs were made without closing the circuit breaker that was already open, and the “belt did attempt to start and move, shut down.” Tr. 77-78, 102. DiLorenzo did not explain what attempt to start or move meant. I give no weight to this testimony as it was little more than assumption given DiLorenzo’s previous testimony that he did not see the belt or how the belt was restarted when he left the power center, and he did not inquire as to how the belt master or power center worked. Tr. 73, 116-17. In this regard, there is no evidence that DiLorenzo ever asked anyone from Respondent how the power center or belt master or any switches or drive motors at those locations actually operated. In fact, DiLorenzo conceded that he never investigated how the belt master worked, but agreed that if the belt master switch was off and the e-stop was engaged, the e-stop would have to be disengaged and the master switch turned on before the belt could start moving. Tr. 101-02. Thereafter, he testified that engaging the e-stop on the belt master opens the circuit and guards against movement, but does not assure that movement cannot be resumed. Tr. 105. DiLorenzo never tested his theory that unless the power cables were unplugged, the belt could start up because the cables were still energized.

            With regard to paragraph no. 1 of the expired PPL, DiLorenzo testified that such method was not complied with because the affected machinery was the 2 Main South belt, which had two different motors, but only one of those motors had the circuit breaker open. DiLorenzo disputed Respondent’s position that both motors needed to be engaged for the belt to move. Tr. 84. As noted above, DiLorenzo testified that Respondent attempted to start the 2 Main South belt with only one of the circuit breakers closed while he was present and the belt did move, “attempted to start,” but did not have enough power or torque to turn the belt with only one drive motor running. I have declined to credit this testimony. I note that DiLorenzo did not see who attempted to start the belt from the belt master with only one circuit breaker open at the power source while he purportedly stood at the power center with Dowell where the catheads were engaged. Tr. 85, 112 . DiLorenzo testified, without detail as to personal observation, that the second time Black Panther attempted to start the belt, they closed both circuits to drive motor 1 and 2 and the belt ran normally. Tr. 113-14. In short, I find DiLorenzo’s testimony too vague and imprecise to establish that belt actually moved when Respondent “attempted” to restart it as DiLorenzo was headed for the surface. On redirect, DiLorenzo answered affirmatively in response to the following leading question from counsel for the Secretary: “My question was basically getting to the point that while you were at the power center, one of the circuits to belt number 2, belt drive motor number 2, was still open, and the circuit for belt drive number 1 was closed when you were at the power center and you saw the belt move?” Tr. 115. In addition, DiLorenzo testified that to the best of his recollection, he believed that Vennard closed the circuit at the power center by resetting the circuit breaker on that drive motor (Tr. 115), but York contradicted DiLorenzo. 179-180. I credit York, who credibly testified on questioning from the Court that once he was cleared by Vennard to start the belt, he went to the power center and released the e-stop for the no. 2 drive motor and then went back to the belt master, released the e-stop, turned the power on, and started the belt. See Tr. 179-80.

            I also note that DiLorenzo never went to the belt master and did not know whether the belt master was in the “on” or “off” position or whether the e-stop was engaged, which would open the circuit for the belt master and guard against belt movement. DiLorenzo insisted that someone could reset the e-stop and turn the belt back on. Tr. 86-88, 105. He conceded, however, that the belt master controls whether the belt moves or not, and if the e-stop is on and the belt master control switch is off, the belt will not move, unless someone turns on the switch. Tr. 88, 90.

                        2.         Respondent’s Witnesses

            Respondent’s witnesses conveyed a slightly different version of events surrounding the inspection. John Vennard has been Respondent’s maintenance chief since June 2006 after working in several maintenance positions since 2001, including a two-year stint as maintenance foreman. Tr. 133-34. Vennard maintains all electrical and mechanical aspects of underground coal mine equipment. Three shift foreman, including York, and 35 electricians, report to Vennard. Vennard teaches an 8-hour refresher training course for all mechanics, holds an electrical card, and performs on-the-job training, whenever necessary. Tr. 135.

            Vennard testified that on August 17, 2010, he was leaving a continuous miner unit that was performing room and pillar mining when a belt examiner flagged him down because a belt was spilling coal. Tr. 137. Vennard examined the spillage area, walked to the belt master, turned the power switch from “auto” to “off”, engaged the e-stop button, and then went to the power center and hit the e-stop for one of the drive motors, but did not remember which one. Tr. 138-39, 140. On his way back to the spillage area, Vennard encountered section foreman York and unit mechanic Simmons. Vennard instructed York to go to the belt master until Vennard flagged him to turn the belt back on. Tr. 138-39, 143.