Black Panther Mining, LLC

Plain-English summary

MSHA alleged that Black Panther's maintenance chief repaired a conveyor belt without removing power and blocking the machinery against motion, an S&S and unwarrantable-failure violation of section 75.1725(c). Judge Thomas P. McCarthy credited the operator's witnesses that three circuits had been opened, the belt-master switch was off, a foreman remained at the controls, and the loaded belt on level ground could not move. He vacated the contested order, approved a partial settlement modifying two other orders, and directed payment of $2,460. The amended February 29 release preserved those results but corrected a stipulation to state that Black Panther operated the mine and that Oaktown Fuels Mine No. 1, LLC owned it.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1725(c) and 75.361(a)
• Outcome: The contested belt-maintenance order was vacated, two other orders were modified by settlement, and the total penalty was $2,460.
• Amendment: The later release corrected the mine ownership and operator description without changing the dispositions.
• Key point: Use lake-2011-34-alj as the operative amended decision.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

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

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner

v.

BLACK PANTHER MINING, LLC,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. LAKE 2011-34

A.C. No. 12-02394-233729

Mine: Oaktown Fuels Mine No. 1

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.

After taking said precautions, Vennard then went to the spillage area to put the pin back in
the belt structure. Vennard could not perform the task alone because the belt was loaded with
coal and Vennard could not pick the structure up himself and replace the pin. Tr. 143. So
Simmons went to the man-trip to retrieve a come-along (ratchet hoist). Vennard and Simmons
then put the come-along on the belt structure, pulled the structure back together, and put the pin in
it. There was no electrical work involved and Vennard testified that it was not possible to come in
contact with the belt during the task, which was completed about 10-15 minutes after Vennard left
the power center.

Vennard testified that York did not assist with the repair task and never left the belt
master. Tr. 145. Dowell testified that he never saw York leave the belt master where they
conversed. Tr. 201-02. York confirmed that Vennard explained to him that he had shut the belt
down to re-pin the belt structure, that Vennard instructed York to stay at the belt until Vennard
completed his work so no one could try to turn the belt on, that the whole job lasted about 5-10
minutes, and that York never left the belt master until he was cleared to start the belt. Tr. 178,
181-82, 188.

After completing the repair, Vennard proceeded down the belt line toward the belt master
and told York to start the belt master, and then he turned right at crosscut one (towards the power
center) and saw Inspector DiLorenzo with Dowell in the entry at the power center. Tr. 146-49,
161-62.

Vennard did not instruct DiLorenzo or Dowell to disengage the e-stop at the power
center and does not recall when the belt started back up or where he was when the belt started
back up, although he testified that he would not have left the area if the belt did not start back up.
Tr. 162-63. Vennard could not recall who released the e-stop at the power center, which was
necessary to start the belt back up. Tr. 161. On redirect, Vennard again could not recall whether
he disengaged the e-stop at the power center. Tr. 170 On further questioning from the Court, he
could not recall any details about the belt being started back up. Tr. 172.

York testified 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. Tr. 179-80. York did not have any
conversations with inspector DiLorenzo and does not recall seeing him, although York spoke with
Dowell to ask what was going at some point when DiLorenzo was not with Dowell. Tr. 180, 188.

Vennard testified that the belts shuts off if the power is turned off or the e-stop button is
engaged, and with either action, the belt does not move. Tr. 140. Vennard further testified that he
was familiar with 30 C.F.R. 75.1725(c) and believed that his actions complied with the standard
by turning the power off and blocking the belt from motion. Moreover, there were no moving
parts and Vennard did not come in contact with the belt or enter any pinch point area. Tr. 151-52.

In response to questioning from the Court, Vennard testified that it was not necessary to
engage both e-stops at the power center because they feed through a series circuit and pushing one
e-stop will shut down the circuit, which is monitored at the belt master and prevents the belt from
moving. Tr. 142, 155.

Vennard conceded that the power system was designed to run on one
motor, and in such case, the e-stop for that motor was controlling, but when both motors were
being used, as in this case, one e-stop controls both motors. Tr. 155. When asked on cross why
he stationed York at the belt master if engagement of one e-stop at the power center would ensure
that the belt would not move, Vennard testified, “I think I positioned him there as much as not to
turn it on as when I flagged him to turn it on. So we could get the belt back up and running.” Tr.

160. “He was positioned there as much as not to let the belt start, as to get the belt started as fast
     as we could.” Tr. 165-66. Thereafter on cross, Vennard testified that he did not need to position
     York anywhere, but it was a hectic, moment and he was in a hurry to get the belt back up and
     running. Tr. 166, 169-170.

On further aggressive cross examination concerning whether he
was in a hurry and positioned someone there to protect him, but did not follow the standard,
Vennard held tough and testified that he complied with the standard, which he acknowledged on
redirect was designed to prevent motion or movement of equipment (Tr. 170), by turning the
power off at the power center and removing power from the belt. Tr. 166-67.

On further questioning from the Court, Vennard testified that the belt was blocked against
motion during his repairs because the power was off and the belt could not move. Tr. 172. He
testified that if the power had been on, the belt still would have been running. Tr. 173. He further
acknowledged a difference between “power off” and “blocking against motion” and volunteered
that one could actually put a belt block or tie on a belt to keep it from rolling, but such precaution
was unnecessary in the circumstances of this case based on the type of machinery since the belt
was loaded and was located on a flat surface without incline, and was not going to move with
power off. Tr. 171-72, 174. The Secretary offered no probative evidence or persuasive argument
to the contrary.

Vennard also testified that it was not necessary to decouple the power cables for the two
drive motors at the power source because there were three open circuits, the power was off, and
the belt could not start. Tr. 157. Vennard testified and Dowell confirmed that in order for the
belt to start moving again, one would have to release the e-stop at the power center, release the e-stop at the belt master, and then turn the switch back to the “on” position at the belt master. Tr.
152, 208. He further testified that all three of these things needed to happen for the belt to move
in any fashion or start back up. In fact, Vennard testified that he had tested this before and
confirmed that such was the case. Tr. 153.   Dowell also testified that in the past he had tried to
start the belt when the e-stop to one motor at the power center was engaged and the belt would not
move or even attempt to start up. Tr. 207. On cross, Dowell further opined that Vennard went
above and beyond what 30 C.F.R. 75.1725(c) required by opening the circuits at the power center
and belt master, turning the power off at the belt master, and stationing York at the belt master.
Tr. 208.

On questioning from the Court, Dowell opined that Vennard complied with the first
paragraph of PPL PO8-V-01 concerning methods to comply with the standard to prevent
inadvertent or unexpected motion, by opening three different circuits. Tr. 209. Dowell further
opined that Vennard also complied with the second paragraph of PPL PO8-V-01 because when
he hit the e-stop at the power center, he essentially disengaged the power cable couplers that
supplied power to the drive motors for the belt because they could not function after the e-stop
was engaged. Tr. 211.

York also confirmed on cross that Respondent took three steps to ensure that power was
off for the belt line, i.e. engaging the e-stop at the power center and the e-stop and power off
switch at the belt master. Tr. 183. On cross, York also acknowledged that the belt master
controls the starter on the motors, but if the power center circuit is open, which it was, one cannot
start the motors. Tr. 182-83.

York further testified that 30 C.F.R. 1725(c) requires equipment to be powered off and
blocked from motion, and Respondent’s practice under Vennard’s leadership was to turn the
power switch off and trip the circuit at the power center. Tr. 186. On questioning from the
Court, York opined that “power off” meant turning the key on the belt master to “off “(switch off
at the belt master) to separate the circuit between the belt master and the starter box at the power
center for the motors. York further noted that Vennard took the initiative to engage the e-stop on
the belt master as well as the e-stop on one of the two motors that were tied together in a series at
the power center. Tr. 189-90. York also opined that “blocked against motion” typically
concerned maintenance on mobile equipment or rubber-tired vehicles that have been parked or left
idle. He confirmed that the belt on which Vennard was performing repairs could not move if the
power was off and the circuit was open at the power center, and that even if the belt master was
turned back on, the belt would not move with the e-stops engaged. Tr. 190-91.

Respondent’s final witness was Matt Dowell, Respondent’s representative throughout the
hearing. As noted, Dowell drove the man-trip from the active working section to the end of the
belt flight line, while DiLorenzo walked the belt line. Tr. 44. Dowell testified that DiLorenzo
asked Dowell to pick him up at the end of the belt flight. Tr. 194. Dowell apparently arrived first
(Tr. 200) and parked in the secondary escapeway at cross cut 1 near the power center. Dowell
then walked over to the 2 main south belt line, which was down, and then out-by to the belt
master, where he spoke to York. York explained to Dowell that guys were working in-by the belt
line, where lights were visible, and they were fixing a problem with the belt. Tr. 194-95, 197,
200.

Dowell then heard DiLorenzo holler for him from around the corner at the power center
about 90 feet away. When Dowell arrived back at the power center, DiLorenzo asked Dowell
how come the belt was not locked and tagged out. Tr. 195, 200.

Dowell testified that he did
not respond to DiLorenzo’s inquiry, but noticed that the motor was engaged for one drive. Then
DiLorenzo headed back over through cross cut 1 toward the belt area where Vennard and
Simmons were completing their work. Tr. 195-97; see also R. Ex. 8.

Dowell testified that he saw York again when DiLorenzo was questioning Dowell about
why the catheads were not locked and tagged out. Tr. 202. I infer this is when York was headed
toward the power center to open the circuit after Vennard flagged him following completion of the
repair work. Dowell testified that DiLorenzo made some notes and then they proceeded outside.
Tr. 202.

Dowell further testified that in the man trip on the way out, DiLorenzo was reading
through his references and indicated that he had to check some sources once on the surface. Tr.

202. Thereafter, DiLorenzo returned to Dowell’s office and indicated that he was issuing a
     104(d)(1) Order based on the PPL. Tr. 202. Dowell testified that operations manager Rigsby
     was present, but Rigsby did not testify. Tr. 203. Dowell testified that he questioned DiLorenzo
     about the Order, noting that the power was off. According to Dowell, DiLorenzo said that power
     off meant “locked out and tagged out in this instance.” I credit this testimony from Dowell.
     DiLorenzo’s contemporaneous notes confirm that he was viewing the alleged violation as a
     contravention of lock out and tag out requirements (P. Ex. 2, pp. 10 and 11), although DiLorenzo
     abandoned this theory at trial. Tr. 98, 111.

3.         The “Directed Verdict”

At the close of Respondent’s case, I granted Respondent’s motion to dismiss (styled by
Respondent as a motion for a directed verdict, see Tr. 124 and 212) and vacated the citation. I
found, based on the credible testimony from each of Respondent’s witnesses and the inability of
inspector DiLorenzo to testify from firsthand knowledge as to how the power system worked, that
the requirements of 30 CFR 75.1725(c) were complied with because the power was turned off and
the belt effectively was blocked against motion under the circumstances. Tr. 212-13. I reaffirm
that decision in this written opinion.

As Judge Gill noted when granting a contestant’s motion to dismiss at the close of the
Secretary’s case in a slightly different context in Clintwood Elkhorn Mining Co., 32 FMSHRC
1880, 1881 (Dec. 2010)(ALJ Gill), Fed. R. Civ. P. 52(c) allows the dismissal of a matter at the
judge’s discretion when a party fails to prove a key element of their case. Fed. R. Civ. P. 52(c)
provides:

If a party has been fully heard on an issue during a nonjury trial and the
court finds against the party on that issue, the court may enter judgment
against the party on a claim or defense that, under the controlling law,
can be maintained or defeated only with a favorable finding on that
issue. The court may, however, decline to render any judgment until the
close of the evidence. A judgment on partial findings must be supported
by findings of fact and conclusions of law as required by Rule 52(a).

Thus, during a non-jury trial, Rule 52(c) authorizes the court to enter judgment at any
time that it is appropriate to make a dispositive finding of fact on the evidence. In Clifford Meek
v. Essroc Corporation, the Commission found that a ruling on a motion for involuntary dismissal
under Rule 52(c) was at the judge’s discretion and found “no error by the judge and affirm[ed] his
procedural determinations.” Clifford Meek v. Essroc Corporation, 15 FMSHRC 606, 614 (April
1993). In Sec’y of Labor v. Martin County Coal Corporation and GEO /Environmental, the
Commission found that a judgment on a partial finding was appropriate because the judge had
heard the Secretary’s entire case. Sec’y of Labor v. Martin County Coal Corporation and
GEO/Environmental, 28 FMSHRC 247 (May 2006). In addition, the Commission found in
Martin County Coal that the judge does not need to address every point of evidence. Id. The
judge must only include findings and conclusions on “material issues of fact [and] law.” Id., citing
Fed. R. Civ. P. 52(c).

In this case, I heard all the evidence from both parties before finding at the close of the
Respondent’s case that the Secretary failed to establish a violation of the cited standard by a
preponderance of the evidence. As discussed below, the Secretary failed to prove the key factual
elements for her case by a preponderance of the evidence. Specifically, the Secretary failed to
establish that a repair was made on the belt structure when the power was on or when the belt was
not blocked against motion. All credible evidence is to the contrary.

I credit the testimony of Respondent’s witnesses that 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.
Although Vennard did not decouple the power cables or catheads at the power center, such
method of compliance was unnecessary per the PPL since Vennard had already opened all circuit
breakers for the affected machinery and turned the power switch off. In addition, Vennard
instructed foreman York to go to the belt master until Vennard flagged him to turn the belt back
on. Tr. 138-39, 143. I credit the testimony of Respondent’s witnesses that York never left the
belt master until he disengaged the e-stop at the power center after being flagged by Vennard to
restart the belt once the minor repair was completed. The Secretary made no specific argument as
to how the belt was not blocked against motion and her sole witness conceded that a log out and
tag out procedure was not required. Further, I credit Vennard’s testimony that the belt was
effectively blocked against motion because the belt was loaded on a flat surface without incline
and could not move with the circuits open and the power off.

In short, I find that Respondent complied with 30 C.F.R. § 75.1725(c). Cf. Island Creek
Coal Company, 22 FMSHRC 822 (2000). Accordingly, Order No. 8426631 is vacated.

ORDER

For the reasons set forth in note 1 above, the joint motion to approve partial settlement in
Docket No. Lake 2011-34 is APPROVED under the criteria set forth in Section 110(i) of the Act.
Accordingly, Order No. 8429032 alleging a section 104(d)(1) unwarrantable failure to comply
with 30 C.F.R. 75.361(a) is modified to a section 104(a) citation, with moderate negligence and a
reduced penalty of $460, and Order No. 8429035 is modified to a section 104(d)(1) citation with a
statutory minimum penalty of $2,000.

Order No. 8426631 is VACATED.

If it has not already done so, within 40 days of the date of this decision, Black Panther
Mining, LLC is ORDERED to pay a total civil penalty of $2460 for the alleged violations that
have been settled. Upon payment of that penalty, this proceeding is DISMISSED.

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution: (E-Mail and Certified Mail)

Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn
Street, Room 844, Chicago, Illinois 60604

Drew Miroff, Esq., Ice Miller, 1 American Square, Suite 2900, Indianapolis, Indiana 46282