James Sottile

Railroad Safety Consultant

83 Pinedale Street
Southbridge, Massachusetts 01550
(508)-765-5064
(774)-230-3036

Railroad Safety Analysis

Re: James Deacon v. Metro North Railroad

Supplemental Report Prepared by:

Cahill, Goetsch, & Maurer, PC James Sottile
43 Trumbull Street Railroad Safety Consultant
New Haven CT 06510

February 4, 2009
1.0 Scope of Opinion

I, James Sottile, was asked to offer an expert opinion, to a reasonable degree of certainty within
my extensive expertise in railroad safety, regarding the cause or causes of a serious personal
injury suffered by Metro No rth electrical tester James Deacon on October 30 , 2006.

In this regard, I was to consider the applicability of any Federal Railroad Administration (FRA)
or Occupational Safety & Health Administration (OSHA) safety regulations (including OSHA
regulations codified in 29 CFR §1910.269 applicable to railroad workers performing tasks on
energized components within a 700-volt direct current third rail distribution system) , keeping in
mind that any such OSHA regulations are interpreted and applied to Metro Nor th by the Public
Employee Safety and Health (PESH) division of the New York Department of Labor (NYDOL).

Also, I was to consider whether any failure by Metro North Railroad to comply with its own
standard of care and operating and safety rules caused or c ontributed to the October 30, 2006,
incident.

My investigation did reveal the cause of the incident and established that Metro North Railroad
did not comply with OSHA’s Electrical Safety regulations and with Metro North’s own General
Safety Rules, Electrical Operating Instructions , and standard of care regarding routine preven tive
inspection and maintenance.

2.0 Statement of Qualifications

James Sottile:
I, James Sottile, have over 45 years of combined railroad and federal regulatory experience in the
railroad industry and have substantial railroad safety expertise , including expertise in DC Third
Rail systems, accident investigations, and the application of safety regulations to railroad
operations.

My railroad career began in 1960 and I performed many work classifications from an entrance
position of helper to a supervisor foreman during 18 years in the Signal Department of the Long
Island Rail Road. My duties included working within an electric traction environment on railroad
construction and maintenance projects. My railroad background also includes combined industry
and regulatory experience in railroad signal circuit design, signal system project planning, and
installation. For 22 years I served as an investigator and specialist for the Federa l Railroad
Administration (FRA). I am an expert in all wayside signal, highway /rail grade crossing, Positive
Train Control, Communication based and on board locomotive Automatic Cab Signal/Train
Control (ACS/ATC) applications in both electric and non -electric propulsion systems. I provided
technical guidance for a metropolitan New York City commuter railroad (LIRR) when my
federal safety enforcement and research exposed dangerous anomalies between signal system
and propulsion traction return paths connectin g traction power sub stations. I discovered that
disparate power and signal department design cultures adversely affected fail-safe design of
several train occupancy detection circuits. My conclusions resulted in the railroad formulating a
periodic test regimen designed to monitor new third rail power traction return installations by the
electric traction department .

I completed a two-year Labor studies course at Cornell University’s School of Industrial and
Labor Relations, railroad craft associated techn ical schools, and the United States Department of
Transportation Safety Institute.
James Deacon v. Metro North Commuter Railroad 2
I was one of eight (Signal and Train Control Specialists) who were members of an
industry/government/management/labor working group, that produced the highway/rail grade
crossing regulations codified in 49 CFR § 234. I also produced and implemented a grade
crossing investigation-training course for Massachusetts, Maine, and Connecticut, Local and
State Police. This training provided the attendees an opportunity to improve r esponse to and
produce quality investigation s of highway/rail grade crossing accidents prior to site arrival of
federal authorities. This was conducted in conjunction with the national "Operation Lifesaver"
public awareness safety program. The Supreme Court of New York (trial court) has certified me
as a railroad accident re-constructionist as a result of testimony in McAleavey/Glasser vs. LIRR .
I am presently a signal and grade crossing system consultant for the Commonwealth of
Massachusetts Department of Public Utilities.

A copy of my Curriculum Vitae is provided in Appendix A of this report

3.0 Information Reviewed

Exhibit numbers refer to the Exhibit Notebook used during all the depositions in this case.

1. MAC Products Inc. Operation and Maintenance I nstructions for sectionalizing switch.
2. MAC Products Inc Drawing # C-14541 Wiring Diagrammatic Control circuit and
Schematic diagram of Metro North Sectionalizing Switch.
3. Reliance Electric. Small DC Motors Instruction Manual C -3073-6.
4. Powerswitch Inc. Switch Installation and Maintenance Instructions
5. OSHA Electrical Safety Regulations 29 CFR 1910.269(a),(l),(m),(n)
6. OSHA Electrical Safety Regulations 29 CFR 1910.137 and 147
7. Metro North General Safety Instructions Parts 2000, 400 PPE, 2300 Lockout
8. Metro North Electrical Operating Instructions MN-290 2005 pgs 1-29, A-4
9. Metro North 3 rd Rail Diagram, Mott Haven- Melrose.
10. Metro North Incident Investigation Report.
11. Metro North Power Department Log.
12. Metro North Power Department Report Description of Incident
13. Metro North John Lauria Statement
14. Metro North John Lauria Taped Statement and Summary
15. Metro North Foreman H erbert Taylor Statement.
16. Metro North Torre Notes re interviews of Deacon and Lauria in Hospital
17. Metro North James Deacon Statement regarding incident of 10/30/08
18. Metro North Discipline Charge and Waiver of Foreman Herber t Taylor.
19. Metro North Photographs of interior of 33S SS and overall site.
20. Metro North Daily Attendance Records.
21. Metro North Power Department Training Materials re Hazards of Elec. Arcs.
22. Metro North Records re inspection and maintenance of 33S
23. NY State DOL FOI response re applicability of OSHA regs and discussions re
23A. Metro North Answers to Request to Admit 7/23/08
24. Metro North Incident Investi gation and Reporting Manual
25. Metro North James Deacon Training Record
26. Metro North Lockout/Tagout Training Manual
26A MetroNorth Types of Safety Tags
27. Metro North De-energizing Lines and Equipment for EE Protection
28. Metro North Protective Rubber Gloves
29. Metro North Decimal Chart
30. Metro North Harlem & Hudson Third Rail Description
James Deacon v. Metro North Commuter Railroad 3
 31. Metro North Videotape of inspection by Manager Torre
32. Metro North Hearing Transcript March 2, 2007
33. Metro North Sworn Interrogatory answers
34. Metro North Clearance Forms for 33S Section alizing Switch

Deposition Metro North Manager Martin Wong.

Deposition Metro North Manager Frank Torre.
Deposition Metro North Manager James Pepitone
Deposition Metro North Foreman Fred Hadden
Deposition Metro North Manager James Gillies
Deposition Metro North Manager Patric Marchitto
Deposition James Deacon

4.0 Background:

Metro North's trains run on electricity. In Grand Central Terminal and on the Harlem and
Hudson lines, Metro North transmits and distributes 700 volts DC to a third rail system that
provides the electricity to its trains. Sectionalizing switches are a component part of Metro
North's Third Rail system. They are located in boxes next to the track and third rail , and control
the power supply to sections of the third rail system by isolating or connecting sections of the
third rail.1

All electrical systems are inherently hazardous, presenting a risk of serious injury or death. The
700 volt Third Rail system on Metro North is no different, and in particular presents a risk of arc
explosions, which result from the passage of current through vaporized metal terminal material .
Arc explosions occur due to poor electrical contact or malfunctions, and are up to four t imes
hotter than the surface of the sun. 2 OSHA has safety regulations designed to eliminate the risk of
arc explosions, and Metro North has safety rules intended to eliminate the risk of such explosions
when working on or around the Third Rail system.

On any railroad, routine preventive inspections of electrical equipment are an essential part of
safe operating procedures. The purpose of routine preventive inspections is to confirm that
equipment is in proper working order or to discover any defect or mal function so it can be
corrected before it causes an injury or death. In the case of sectionalizing switches (SS), the
electrical cable connections can loosen and disconnect over time as a result of the movement of
trains on the adjacent tracks , the activities of Track Department personnel or equipment , or the
improper soldering of the ends during installation (see text at footnotes 12-17 below). Regular
preventive inspections of SS will discover any such loosening or disconnection of the electrical
connections so they can be safely repaired by the appropriate personnel prior to any injury or
death.

The Sectionalizing Switch box that concerns us here is known as 33S, and is located on Metro
North’s Harlem line in the Mott Haven area of the New York City B orough of the Bronx. 3 The
33S SS is manufactured by MAC Products, Inc. and uses a Reliance Electric Company DC
motor inside the box to move the switch points. 4 The 33S has two sets of three 500 MCM leads
that run from the third rail to a barrel connector and provide 700 volt positive electricity to the
SS. The two sets of cables perform the same function, providing some redundancy. One set runs
underneath the metal motor housing.
1
Exh. 8 MN-290, pgs. 6, 12, and A-4.
2
Exhibit 21, p. 2-5 “Hazards of Electrical Arcs”
3
Exhibit 19 photos.
4
Exhibits 1 and 3.
James Deacon v. Metro North Commuter Railroad 4
Metro North admits that it should conduct preventive safety inspections of sectionalizing
switches no less than once a year to ensure that all connections are secure and the sectionalizing
switches are in proper working order. 5 Although it is a commonsense standard practice on
railroads to conduct such annual preventive inspections, Metro North admits (and the lack of any
inspection records confirms) that it failed to conduct such preventive inspections of the 33S SS
located at Mott Haven for at least the six years prior to the injury of James Deacon. 6 As a result,
Metro North was unaware of the fact that one set of the 500 MCM leads had worked themselves
loose from the barrel connector and were entirely disconnected. One of the leads was touching
the metal motor housing, thus energizing the entire housing with 700 volt posit ive third rail
electricity. The 33S continued to operate without any fault notice because of the redundancy
provided by the second parallel set of 500 MCM leads that remained connected and functional.

Metro North also confirmed that had it discovered the disconnected 700 volt wires during the
required annual preventive inspections of that 33S SS, then a Metro North Third Rail
Department crew would have repaired the wires by deenergizing the power to the SS box and
reconnecting the wires.7

5.0 Statement of Facts

On Saturday October 28, 2006, t he Metro North Commuter Railroad’s Power

Director received notice of a malfunctioning problem with the third rail voltage
sensor circuit inside third rail sectionalizing switch box 33S. In response to this
notice, the Metro North’s Power Director Log noted that on Monday October
30, 2006, a four-man test department electrical crew would be assigned to
perform troubleshooting repairs inside the 33S third rail sectionalizing switch
box.8 Figure 1 - 33S SS Box

On Monday morning October 30, 2006, Foreman Herbert Taylor’s electrical

testing crew was assigned to troubleshoot the problem within the 33S
sectionalizing switch box. As is standard practice in the Metro North Test
Department, the power was not de-energized to the 33S sectionalizing switch
box.9 The crewmembers opened the cover to the SS box and n oticed the #6
negative wire was pulled loose and disconnected. Foreman Taylor personally
observed and confirmed the problem, and then ordered two of his crew
members (Electrical Testers John Lauria and James Deacon) to go ahead and Figure 2-Voltage Sensing
repair the #6 wire negative circuit inside the box by replacing parts and Wire Terminal Block &
connections. The two electrical testers then proceeded to follow the standard Motor Housing
practice for performing that repair work. Although it was not necessary for the 33S's 700 volt
power to remain energized in order for the crew to perform the repairs on the #6 negative wire
circuit parts (in other words, the repairs on the #6 circuit parts could have been done with the 700
volt power to the SS deenergized), it was standard practice in the Metro North Test Department
not to deenergize the 700 volt power to the SS box when performing that troubleshooting repair .

5
Pepitone Depo. Trs. 89-90; Torre Depo. Trs. 49-50; Gillies Dept. Trs. 37-38.
6
Exhibit 22; Pepitione Depo. Trs. 92; Torre Depo. Trs. 51.
7
Torre, Depo. Trs. 51-53; Pepitone Depo. Trs. 97-98; Gillies Depo. Trs. 38.
8
Exhibit 11 Power Director Daily Log # 2006 -102807
9
Pepitone Depo. Trs. 63-64; Torre Depo. Trs. 53-54; Exhibit 32; Exhibit 34; Deacon Depo. Trs. 58; Marcchitto
Depo. Trs. 24.
James Deacon v. Metro North Commuter Railroad 5
 The testing crew's repair work on the #6 negative wire circuit parts h ad to be
done inside the open SS box in close proximity to the motor
housing inside the box. The crew could not see the disconnected
500 MCM third rail cable leads underneath the motor housing (and
Metro North admitted that the crew would not notice them u nless
they were specifically directed to look for them ).10 As a result, the
Figure 4 Burned crew was unaware the metal motor housing was energized with 700
Motor Housing volts positive power. As the crew performed the usual repairs on the
#6 negative wire circuit parts, the negative #6 wire came into contact
with the 700-volt positively energized motor housing, causing a direct short circuit Figure 3
that produced an electrical arc explosion. T he two-crew members suffered serious Disconnected 3rd
burns and required immediate hospitalization. Rail Cable

6.0 Findings and Opinions:

Metro North has an Incident Investigation and Reporting Manual that sets forth its methodology
for identifying and analyzing the causes of incidents that injure employees. 11 Metro North
acknowledges that typically such incidents have multiple caus es and that a detailed analysis of an
incident will reveal both the direct cause as well as root causes. In conducting such an analysis
Metro North stresses that:

"it is important to look beyond the errors and failures that immediately precipitated the i ncident.
The investigator must identify system deficiencies at the work and management levels to
determine the underlying oversights, omissions, performance errors, and accepted risks that are
the root causes. These causes may lie in the organizational s tructure, safety management
systems, or management oversight processes related to the incident."

Exhibit 24 at p. 21. An application of Metro North's analytical method reveals the direct cause
of the October 30, 2006, incident as well as the root causes of that incident.

Direct Cause
Metro North's Manual states that "the direct cause is the immediate event or condition that
caused the incident. Often this is defined as energy or hazardous material that cannot be safely
absorbed."

Here, it is obvious that the direct cause of the October 30, 2006, arc explosion was the unsafe
condition of a 700 volt wire becoming loose and disconnected such that it contacted the motor
housing inside the 33S box, energizing it with 700 volts that should not have been there. But for
that unsafe condition, the arc explosion could never and would never have happened.

Root Causes
Metro North's Manual states that "Root causes are the absence of or deficiencies in, management
systems that control human actions and equipment per formance. Root cause, if corrected or
eliminated, would prevent recurrence of the incident. Root causes are the most basic causes of an
event that meet the following conditions: they can be reasonably identified and management has

10
Frank Torre Depo. Trs. 61 -63; Exhibit 32 Hearing Testimony of Torre p. 18.
11
Exhibit 24, pages 17-22 entitled "Determining the Causes."
James Deacon v. Metro North Commuter Railroad 6
the ability to fix or influence them. . . Examples of root causes include, but are certainly not
limited to, the following:

For equipment failures:

 Lack of predictive or preventive maintenance

For Human errors:

 Wrong, confusing, or missing procedures
 Wrong, or incomplete training
 Deficient supervision"

The following deficiencies by Metro North are the root causes of the October 30, 2006, arc
explosion. That is to say, if Metro North had corrected these deficiencies, the arc explosion
could not have occurred and James Deac on would not have been injured. 12

Failure to Conduct Annual Prevent ative Inspections

Metro North admits it should perform routine annual inspections of sectionalizing switches in
order to confirm that all parts and components are in safe and proper working condition. Such
preventive inspections will discover any defect or malfunction, thus allowing Metro North to
correct the problem before any injury occurs. For example, if a 700 volt wire connection inside a
SS box becomes loose and disconnected, a preve ntive inspection will discover that and Metro
North's Third Rail Department can tighten or reconnect the wire so the SS will be in a safe
condition.

Here, Metro North admits that it failed to perform any such routine annual preventive safety
inspections of the 33S for the six years prior to the arc explosion on October 30, 2006. Metro
North's records confirm no such preventive inspection was done to the 33S for at least six years.

The loosening and ultimate disconnection of wires within a SS is known to occur over time as
result of the vibrations of passing Metro North trains and the work activities of the Metro North
Track Dept along the tracks and third rail. 13 The Metro North Third Rail Department Foreman in
charge of the area where the 33S is located, Fred Hadden (who has 34 years of experience with
the Railroad’s Third Rail system, the last 15 years as foreman), testified under oath that the 33S
was located in a “mud spot” where the railroad roadbed was too soft to properly support the
weight of trains passing over the adjacent rails. As a result, the rails and cables at that location
bounced up and down whenever trains pass by, over time loosening and disconnecting the 33S
cable connections. 14 Foreman Hadden confirmed that mud spots on Metro North ha ve been
happening for some years, and can only be corrected by the Metro North Track Department
replacing the roadbed with new ties and ballast. 15

Metro North Manager James Gillies personally inspected the ends of the 500 MCM cables that
became loose and disconnected under the motor housing inside the 33S. 16 It appeared to him
that the ends of the cables were not properly terminated when they were installed originally, that
is, when the cables were originally installed in the 33S SS box the metal ends of the cables were

12
Gillies Depo. Trs. 37.
13
Pepitone Depo. Trs. 96, 150-151; Torre Depo. Trs. 81-82; Gillies Depo.Trs. 31.
14
Hadden Depo. Trs. 11-12, 24.
15
Hadden Depo. Trs. 18-19.
16
Gillies Depo. Trs. 26.
James Deacon v. Metro North Commuter Railroad 7
not soldered sufficiently to maintain the connection in side the sleeve of the ferrel. 17 That 33S SS
was originally installed in the mid to late 1980s.18

Third Rail Foreman Hadden confirmed that the loosening and disconnection of the 700 v olt
positive cable at issue here did not stop the 33S from functioning as intended and did not send a
fault notice to the Power Director because of the redundan cy provided by a parallel set of 700
volts cables. 19 So the only way for Metro North to discover that those cables were loosening or
actually disconnected is through preventive safety inspections of the 33S to confirm that all the
connections inside the box are in fact secure.

Had Metro North complied with its own standards and conducted such preven tive inspections,
Metro North would have learned of the loosening and ultimately disconnected 700 volt cables
inside the 33S box. Metro North admitted it then would have directed its Third Rail Dept to
repair that defective condition by first deenergizing the 700 volt power to the 33S box.

As a result of Metro North's failure to conduct any preventive safety inspections of the 33S for at
least six years, Metro North and Foreman Taylor's crew were unaware of the extremely
hazardous defective condition insi de 33S, namely a motor housing electrified at 700 volts that
should not be energized at all. The third rail sensor problem Taylor's crew was ordered to repair
was not caused by the loose and disconnected 700 volt wire, and Metro North Manager Torre
admitted that Taylor and his crew would not have seen that condition unless they were
specifically directed to look for it.

Failure to Comply With OSHA Safety Regulations Requiring Deenergizing

Metro North Railroad admits that there are no FRA regulations appli cable to the troubleshooting
repairs of SS, and further admits that OSHA regulation 29 CFR 1910.269(m) does apply to the
work of employees performing troubleshooting repairs on third rail sectionalizing switches. 20
Metro North also admits it has no varianc e or exemption from the application of 29 CFR
1910.269(m) to troubleshooting repairs on SS, and the OSHA office with jurisdiction over Metro
North confirms that fact. 21

OSHA's electrical worker safety regulation 29 CFR 1910.269(m) requires the deenergizing of
high voltage electrical equipment prior to employees performing troubleshooting repairs. Such
equipment includes the sectionalizing switch boxes that are part of Metro North's 700 volt DC
high voltage third rail electrical system. Metro North’s own Safety Rules also require the
deenergization of live electrical equipment with the use of Lockout/Tagout procedures. 22

When Metro North has prior notice of a problem, defect, or malfunction in a SS that requires a
crew to open the cover of the SS box to per form troubleshooting repairs, Metro North does not
deenergize the power to that SS. This is so even when it is not necessary for the 700 volt power
to remain energized in order to perf orm the troubleshooting repair. That is a violation of
OSHA's 269(m) regulation and contrary to the manufacturer's safety warning directing Metro
North to "Make sure high voltage DC is isolated from switch prior to human access .23 The

17
Gillies Depo. Trs. 34-35.
18
Wong Depo. Trs. 30-33.
19
Hadden Depo. Trs. 11; Torre Depo. Trs. 82.
20
Exhibit 23A; Torre Depo. Trs. 28-29.
21
Id, and Exhibit 23.
22
Exhibit 7 General Safety Rules 2000.9, 2300.1; Exhibit 26 and 26A; Exhibit 27 ; Exhibit 8 at p. 26, Rule 3.105.
23
Exhibit 1, page 5-1.
James Deacon v. Metro North Commuter Railroad 8
Metro North Manager in charge of the Electrical Testing Department, Frank Torre, confirme d
that the manufacturer’s safety warning to de -energize prior to human access would eliminate the
risk of injury, and that although Metro North should comply with that warning, Metro North in
fact does not comply by isolating the power from the switch befo re employees are allowed to
access it. 24

Here, it was not necessary for the 33S's 700 volt power to remain energized in order for the crew
to perform the repairs on the #6 negative wire circuit parts (in other words, the repairs on the #6
circuit parts could have been done with the 700 volt power to the SS deenergized). If Metro
North had complied with OSHA's 269(m) regulation, the power to the 33S box would have been
deenergzied and the arc explosion could not and would not have happened.

Instead of complying with 29 CFR 1910.269(m), Metro North believes that when its employees
are wearing personal protective equipment (PPE) such as protective gloves and fire resistant
clothing pursuant to 29 CFR 1910.269(l), then the deenergizing requirements of 269(m) d o not
have to be followed. That is incorrect. The OSHA regulations do not so state or provide for
such an exemption from 269(m). Metro North's own General Safety Rules state that PPE is a
"last line of defense" not the first line. 25 The first line of defense against injury is to eliminate
the hazard altogether by complying with Metro North's own standard for prevent ative inspection
and by complying with OSHA's safety regulations.

The top Metro North Manager in the Power Department, James Gillies, admi tted that it is
entirely possible for Metro North to de -energize sectionalizing switches prior to tester crews
troubleshooting inside them, and that it is “safer” to do so. 26 The Training Manager for the
Metro North Power Department, Patric Marchitto, admitted that Metro North has rules for de -
energizing electrical equipment before employees work on that equipment, that Metro North can
de-energize sectionalizing switches at any time during the day or night, and that to de -energize
before troubleshooting a sectionalizing switch is “the safest way.” 27 Manager Marchitto
admitted that if the de-energization of a SS box would somehow interfere with the movement of
trains during the day, then the work on the box should be done at night with the box de -
energized. 28 Manager Marchitto confirmed that Metro North is under the jurisdiction of the New
York Department of Labor OSHA office’s interpretation of the OSHA safety regulations, and
that Metro North has never had discussions with that DOL office regarding the de -energizing of
sectionalizing switch equipment prior to employees working on it. 29 And Marchitto admitted he
would have no quarrel if that office interprets the OSHA safety regulations to mean “that Metro
North electrical testers who are troubleshooting secti onalizing switch boxes should only do so
when the boxes are de-energized.” 30

Failure to Ground Motor Housing

OSHA safety regulation 29 CFR 269(m)(3)(vi) requires that high voltage electrical equipment be
grounded pursuant to paragraph 269(n). Metro North has no variance or exemption from the
application of 29 CFR 1910.269(m) or (n). The manufacturer of the DC electric motor inside the
33S SS, the Reliance Electric Company, warned Metro North that its motor should be grounded

24
Torre Depo. Trs. 34-37.
25
Exhibit 7 Metro North General Safety Rule 400.1.
26
Gillies Depo. Trs. 45 and 44.
27
Marchitto Depo. Trs. 20-23, 27, 31.
28
Marchitto Depo. Trs. 27-28.
29
Marchitto Depo. Trs. 48-51.
30
Marchitto Depo. Trs. 43.
James Deacon v. Metro North Commuter Railroad 9
("Ground the machine proper ly to avoid serious injury to personnel."). 31 Moreover, the
manufacturer of the SS itself, MAC Products Inc., provided Metro North with approved wiring
diagrams showing that the motor housing is to be grounded. 32

Metro North Manager Pepitone and Torre confirmed that Metro North does not ground the motor
housings inside sectionalizing switch boxes, but when pressed were forced to admit that Metro
North could indeed ground the motor housing, consistent with the SS manufacturer's approved
wiring diagram and safety instructions.33

Despite OSHA's regulation and the manufacturer's warnings, Metro North failed to ground the
motor housing inside the 33S box. If Metro North had complied with those regulations and
safety warnings, the arc explosion would not have o ccurred because a grounding event would
have happened inside the closed box when the disconnected 700 volt cable contacted the motor
housing, thereby alerting Metro North to the fact the motor housing had become improperly
electrified with 700 volt positiv e.

Thus the root causes of the October 30, 2006, arc explosion are : Metro North's failure to comply
with its own standard for conducting preventive inspections ; Metro North’s failure to deenergize
the 33S contrary to the manufacturer's directions and OSHA safety regulations; and Metro
North’s failure to ground the motor housing inside the 33S , contrary to the manufacturer's
directions and OSHA safety regulations. If Metro North had corrected any of those deficiencies
prior to October 30, 2006, the arc exp losion and resulting injuries would not and indeed could
not have occurred.

7.0 Foreman Taylor's Crew Followed Metro North's Standard Practice Regarding
Wearing of PPE Gloves
Metro North claims that the two crew members of Foreman Taylor's crew who were w orking
inside the open 33S box should have kept their PPE gloves on at all times while repairing the #6
negative wire. Metro North also claimed after the fact that the Employee in Charge should have
deenergized the third rail power to the 33S box before o rdering the crew to work inside it. 34
However, this is contradicted by the standard practice in the field as confirmed by all the
electrical testers and indeed by the conduct of the top manager of the Testing Department, Frank
Torre.

The specific task that Foreman Taylor's two crew members were performing consisted of
replacing lugs on the #6 wire of the third rail sensor circuit inside the box. All of the Metro
North electrical testers confirmed that after the power to that third rail circuit was deenergi zed
and the next step of the repair required them to do the fine finger work of stripping the ends of
the narrow #6 wire and installing lugs at the end, the standard practice is to remove the bulky
PPE gloves. This was confirmed by: Foreman Herbert Taylor, Electrical Tester John Lauria,
Electrical Tester Ralph Funigiello , and Electrical Tester James Deacon .35 James Deacon
confirmed this is how he was taught to do the job by Metro North and that he has done the job
that way in the presence of supervisors for many years. Given that the circuit he was working on
was not live and he was a sufficient distance away from any parts within the box that were
supposed to be live, and given the fine finger work required for the task, it was the standard

31
Exhibit 4, page 4.
32
Exhibit 1, page 2-3, and Exhibit 2 Drawing C -14541, sheet 1 of 2.
33
Pepitione Depo. Trs. 84-85; Torre Depo. Trs. 40-43.
34
Exhibit 12, p. 3.
35
Exhibit 13; Exhibit 14 p. 5; Exhibit 16; Exhibit 32 Metro North Hearing Trs.
James Deacon v. Metro North Commuter Railroad 10
practice in the field to remove PPE gloves in order to complete those final steps of the repair.
And Metro North’s Incident Investigation Report states that Deacon was indeed wearing the
prescribed PPE at the time of his injury. 36

The ultimate proof that this is i ndeed the practice in the Metro North Test Department is found in
the videotape inspection conducted under the direction of Manager Torre. 37 That inspection of
the 33S box was done less than 24 hours after the arc explosion that sent two workers to the
hospital. Manager Torre was in charge of the inspection and was directing his workers what to
do. The purpose of the inspection was to try to determine what had caused the 700 arc
explosion. Even though he did not yet know why the arc explosion had occurre d, Torre did not
deenergize the 700 volt power to the 33S switch box. 38 Instead, he directed a Metro North crew
to open the live switch box so he could videotape the condition inside. During the course of the
videotape, Torre noticed a metal screwdriver r esting inside the box. Torre directed a worker to
reach inside the box and remove that metal tool even though that worker was not wearing any
PPE glove or flame retardant clothing.39 The fact that the Manager in charge of the Test
Department directed a worker to reach inside without PPE gloves or clothing confirms the
practice in the field that Metro North did not require workers to wear such PPE at all times when
working within such live SS boxes and did not deenergize the power to SS boxes before orderin g
employees to perform troubleshooting work inside them.

The fact remains that the arc explosion was not caused by the wearing or non -wearing of PPE.
Even if Foreman Taylor's crew members had continued wearing gloves, the arc explosion would
have occurred because of the root causes listed above. And as Metro North admits, arc
explosions create temperatures up to 35,000 degrees Fahrenheit, four times hotter than the
surface of the sun, so even the wearing of PPE gloves and clothing does not necessarily protect
against any injury. Metro North's own General Safety Rules state that PPE is a "last line of
defense" not the first line. 40 The first line of defense against injury is to eliminate the hazard
altogether by complying with Metro North's own standard f or preventive inspection and by
complying with OSHA's safety regulations and the manufacturer's safety warnings. Had Metro
North done so, there would have been no arc explosion and no injury of any kind to Foreman
Taylor's crew members.

8.0 Identification of Management Level System Deficiencies

As Metro North’s own Incident Investigation Manual states:

"it is important to look beyond the errors and failures that immediately precipitated the incident.
The investigator must identify system deficiencies a t the work and management levels to
determine the underlying oversights, omissions, performance errors, and accepted risks that are
the root causes. These causes may lie in the organizational structure, safety management
systems, or management oversight p rocesses related to the incident." 41

The fact no preventive inspections of the 33S sectionalizing switch were done for at least six
years was the result of a deficiency in the Power Department’s management. Metro North

36
Exhibit 10, p.4.
37
Exhibit 31 Torre Inspection Videotape.
38
Exhibits 11 and 22; Pepitone Depo. Trs. 126-127; Torre Depo. Trs. 63-65.
39
Exhibit 31; Pepitone Depo. Trs. 124 -125.
40
Exhibit 7 Rule 400.1.
41
Exhibit 24 at p. 21
James Deacon v. Metro North Commuter Railroad 11
admits that such preventive ins pections must be done once a year; yet for six years no such
inspections were done on the 33S switch and apparently no one in the Power Department even
was aware of this omission. The records for the 33S confirm no such preventive inspections
were done. The failure to monitor and confirm the performance of preventive inspections was an
underlying deficiency in the Power Department’s safety management that could and should have
been avoided.

The fact that the Power Department management did not comply wit h the deenergizing
requirements of 29 CFR 1910.269(m) is another deficiency in that Department’s safety
management. It is apparent that the managers in the Power Department believed that the use of
PPE such as gloves relieved them of the obligation to dee nergize SS boxes prior to crews
opening them up to troubleshoot problems. Yet th at is not what OSHA’s regulations state or
provide. Moreover, Metro North’s own General Safety Rules mandate that such PPE are the
“last line of defense” with the first line of defense being to eliminate the hazard: “Consider PPE
the last line of defense in protecting against personal injury/illness. Whenever possible, reduce
or eliminate hazards through other means, such as . . . safe work procedures.” 42 Power
Department management turned this commonsense rule on its head, using the use of PPE as an
excuse to avoid deenergizing the power before ordering crews to open up the SS boxes to do
troubleshooting work inside.

Another deficiency in the safety management systems in the Power Department concerns the
lack of follow-up by the Design group within the Power Department regarding the
manufacturers’ grounding requirements for the sectionalizing switch motor housing. Both the
manufacturer of the motor inside the box (Reliance Electric) and the manufacturer of the overall
switch (MAC Products) warned that the motor housing must be grounded in order to avoid injury
to personnel. OSHA safety regulation 29 CFR 1910.269(n) also refer s to grounding for the
protection of personnel. Metro North did not provide any grounding for the motor housing. If
the motor housing had been grounded in compliance with the manufacturer s’ specifications, the
hazardous condition would have been revealed to the Railroad prior to October 30, 2006.

Another deficiency in the safety management systems in the Power Department concerns the
training and field supervision regarding working on SS. Metro North does not have any written
protocol for the safe troubleshooting of SS in the field. 43 The Assistant Chief Engineer admits
that the only document that describes work to be performed by a test crew employee is in the
collective bargaining agreement between the wo rkers’ Union and the Railroad, a document that
does not contain any protocol for the safe trouble shooting of sectionalizing switches .
Employees were left to observe what fellow workers and foreman did and to follow the practices
done in the field. All of this goes to the following management deficiencies highlight ed in Metro
North’s Manual: “confusing or missing procedures . . . lack of or incomplete training . . . lack of
or deficient supervision.” As the Manual notes, these are all deficiencies that “can be reasonably
identified and management has the ability to fix or influence.” 44

All of these management deficiencies were on display during the videotaped inspection by
Power Department Manager Torre done shortly after the arc explosion that had sent two of his
workers to the hospital. 45 Torre did not know why or how the arc explosion had occurre d. This
was the result of the Power Department’s failure to conduct the required preventive inspections.
42
Exhibit 7 Rule 400.1..
43
Pepitone Depo. Trs. 22-23; Torre Depo. Trs. 53-54; Gillies Depo. Trs. 11.
44
Exhibit 24 Metro North Incident Manual p. 21.
45
Exhibit 31 Torre Inspection Videotape.
James Deacon v. Metro North Commuter Railroad 12
Despite not knowing why or how the arc explosion had occurred, Torre did not deenergize the
power to the 33S box but rather ordered his workers to open the cover to the live box. Despite
knowing the box was energized with 700 volts, Torre proceeded to order the workers under his
supervision to reach inside the live box to remove metal tools without any PPE glove or flame
retardant clothing on. Thus, Torre himself failed to deenergize the 33S box and failed to use
PPE gloves or clothing, the very things Torre accused Deacon and Lauria of doing. This
confirms beyond doubt that the standard practice in Metro North’s Test Department was not to
deenergize SS before troubleshooting inside them and not to wear PPE gloves at all times while
reaching inside the box. And in fact Torre, as the Employee in Charge during that videotaped
inspection, was not disciplined in any way for failing to deenergize the SS and failing to use PPE
gloves and clothing.

6.0 Signature

Supplemental Report Submitted on February 4, 2009

By:

Railroad Safety Consultant

83 Pinedale Street
Southbridge, MA 01550-2341

James Deacon v. Metro North Commuter Railroad 13

Appendix A

Curriculum Vitae

James Sottile
83 Pinedale Street
Southbridge, MA 01550-2341
Office: 508-765-5964
jimsott@bellatlantic.net

Mr. Sottile was born and raised in New York City and attended public and parochial schools,
Cornell University School of Industrial and Labor Relations, and The US Department of
Transportation Safety Institute. He is a Marine Corps Veteran and a life member of the Veteran
of Foreign Wars, and the Marine Corps League. His railroad background includes nea rly 42
years combined industry and regulatory experience in railroad signal circuit design, signal
system project planning and installation. He is an expert in all wayside signals, rail/highway
grade crossing, Positive Train Control, Communication based an d on board locomotive
Automatic Cab Signal/Train Control (ACS/ATC) applications in both electric and non -electric
propulsion systems. His Federal service included extensive accident investigation training and
has participated with the National Transportati on Safety board investigating causal factors of
major accidents in New England, New York, and New Jersey. He has received training in high -
speed rail (French TGV), and Magnetic Levitation applications. He supervised federal inspectors
monitoring installation and deployment of the nine aspect Automatic Civil Speed Enforcement
(ACSES) high-speed rail system and four quadrant grade crossing installations on the Northeast
Corridor between New Haven, CT and Boston, MA. He was one of eight (Signal and Train
Control Specialists) who were members of an industry/government/management/labor working
group, that produced the highway/rail grade crossing regulations codified in 49 CFR § 234. He
also produced and implemented an investigation -training course for Massachuset ts, Maine, and
Connecticut, Local and State Police. This training provided the attendees an opportunity to
improve response to and produce quality investigations of highway/rail grade crossing accidents
prior to site arrival of federal authorities. This wa s conducted in conjunction with the national
"Operation Lifesaver" public awareness safety program. He has also supervised federal
inspectors enforcing Signal and Train Control rules to the regulated railroad community since
1978. Mr. Sottile was also a me mber of the Positive Train Control standards working group
promulgating new federal regulations prior to deployment and implementation of this system in
the 21st century. He completed Labor law courses at Cornell University . He has represented
several Boston, Massachusetts metropolitan area municipalities concerning four -quadrant gate
grade crossing design applications for “Quiet Zones” (49 CFR § 222) at government -sponsored
hearings. The Supreme Court of New York has certified Mr. Sottile as a railroad ac cident re-
constructionist as a result of testimony in McAleavey/Glasser vs. LIRR. Mr. Sottile is presently a
signal and grade crossing system consultant for the Massachusetts Department of Public
Utilities.

James Deacon v. Metro North Commuter Railroad 14

 Resume

Education: New York City Public and Parochial Schools.

Delahanty Drafting Technical School, Jamaica, NY (1961)
Cornell University School of Industrial and Labor Relations at
Farmingdale, New York. (1974 – 1976)
George Meany Institute, Washington, DC (1975)
Cleveland Institute of Electronics, Cleveland, OH (1968)
Transportation Safety Institute, Oklahoma City, OK (1983)
University of Virginia (PTC) (2001)

Courses: Railroad Accident Investigation

Signal and Train Control Systems Recurrence Training
Personnel Relations and Supervisory Training
Statistics Management Training
Personnel Management Training
High Speed Rail (Magnetic Levitation and French State of the Art
TGV Signal and Train Control)
Microprocessor Verification/Validation Training

Work Experience: Long Island Railroad 1961 to 1978

Promotions from entry level helper to Signal Foreman.

Chief bargaining unit officer, Local No. 56 Brotherhood of
Railroad Signalmen. (From 1972 to 1978).

Railroad Safety Consultant – 2002 to Present

USDOT/FRA - 1978 to 2002

Appointed Signal and Train Control Inspector GS -12 (2121)

headquartered at Newark, NJ – (1978)

Promoted to Signal and Train Control Specialist GS -13 (2121)

headquartered at Boston, MA – (1981)

Promoted to Signal and Trai n Control Specialist GM-13 (2121)

headquartered at Cambridge, MA – (1990)

Special Skills: Negotiations

Wayside and onboard Locomotive Automatic Cab Signal/Train
Control Signal Systems Applications
Railroad Accident Investigator
Computer Technology and Program Applications
Signal &Train Control Discipline Manager
Program Manager for Rail Systems Assessments
Productivity Program Development
Data Analysis
Blue Print Plan Interpretation, Structural - Electrical - Pipe

James Deacon v. Metro North Commuter Railroad 15

Military: United States Marine Corps
September 25, 1955 to September 25, 1961
Honorable Discharge
Armed Forces Expeditionary Service Medal
Marine Honor Guard Silent Drill Platoon Marine Barracks,
Washington, DC – 1956-1957
Marine Security Guard assigned to security for President
Eisenhower - 1957
2nd Provisional Marine Brigade landing force member - July 1958
at Beirut, Lebanon
Telephone and CW Radio technician/Operator

Community Service: Veterans of Foreign Wars

Post Commander, Post No. 3211 , Hicksville, NY
Adjutant, Nassau County Council, Long Island, NY
Active in substance abuse and youth programs, Hicksville, NY
President of Tri-Community Swimming Team Association,
Southbridge, MA
Marine Corps League Sr. Vice Commandant
Detachment # 1094
Southbridge Massachusetts Liquor License Board Chairman 2003
– 2006

Awards Recipient of the Federal Railroad Administration Positive Train

Control Standards Team award, which was presented on December
5, 2000. The award recognized outstanding teamwork , skill, and
dedication in developing the Federal Railroad Administration’s
proposed rule on Positive Train Control Standards.

Secretary of Transportation Gold Medal Award was presented on

November 18, 1999 for work with the Garrett A. Morgan
Technology and Transportation Futures Program.

James Deacon v. Metro North Commuter Railroad 16

Appendix B
Fee Schedule

Safety Consultant: James Sottile

Fees and Charges:

 Retainer Fee Applied against hourly charges $3,000.00

 Investigation/ Research: $200.00/Hour

Includes site visits,
report writing, consultation

 Deposition Testimony: $200.00/Hour

Includes courtroom and
office preparation and
waiting time

 Trial Testimony: $250.00/Hour

Includes courtroom and
office preparation and
waiting time

 Travel Time: $100.00/Hour

For time spent in actual transit
while away from home office

 Direct Expenses: Actual Expenses

Includes air fares, taxi, lodging and
meals while on travel, document
reproduction, mailing and other
reasonable and necessary expenses

James Deacon v. Metro North Commuter Railroad 17

Appendix C

Prior Testimony

CASE NUMER TYPE DATE

Fry v NS 02-214887 NO Transcription 3/3/04

Bell v CR ----------------- Video/Transcription 3/7/04
Glasser v LIRR ----------------- Transcription 6/10/04
McLeavey v LIRR ----------------- Transcription 6/10/04
Glasser v LIRR ----------------- Trial Testimony 7/15/04
McLeavey v LIRR ----------------- Trial Testimony 7/15/04
Bova v UP 032-09787 Transcription 4/18/06
White v METRA ----------------- Transcription 4/26/06
Graniteville, SC C/A NO. 1:06-MN—600 Transcription 2/20/07

James Deacon v. Metro North Commuter Railroad 18