[00:00:03] Speaker 00:
Case number 14-1266, Mack Mining, LLC, petitioner, versus Secretary of Labor at L. Mr. McHugh for the petitioner, Ms.

[00:00:12] Speaker 00:
Blair Kujawski for the respondents.

[00:00:56] Speaker 01:
May it please the Court, my name is James McHugh and I represent Mock Mining in this case.

[00:01:01] Speaker 01:
Mock Mining operates an underground coal mine in Johnson City, Illinois, using continuous mining sections as well as longwall sections.

[00:01:09] Speaker 01:
There are two citations that are on appeal here, and the first citation is 667-9603, which mock is appealing the high negligence designation and the SNS designation.

[00:01:22] Speaker 01:
The second citation is 668-3204, and mock is appealing the high negligence designation.

[00:01:28] Speaker 03:
How much of the penalty is related to those enhanced?

[00:01:33] Speaker 01:
Your Honor, the penalty was based on the application of part 100.

[00:01:39] Speaker 03:
Just what's the answer to my question?

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How much was the total penalty?

[00:01:42] Speaker 01:
Total penalty was, I believe, $4,000 and something.

[00:01:45] Speaker 01:
$4,000.

[00:01:45] Speaker 03:
So how much of that was due to the enhancement of your challenge?

[00:01:48] Speaker 01:
It would be a fair amount, Your Honor, probably two-thirds, because the high negligence designation bumps the points up.

[00:01:56] Speaker 03:
So this appeal is all about $3,000?

[00:01:59] Speaker 01:
Well, no, Your Honor.

[00:02:00] Speaker 01:
It's about much more than that.

[00:02:02] Speaker 01:
It's about the definition of high negligence and the fact that the judge disregarded the mitigating circumstances in this case.

[00:02:09] Speaker 03:
But I'm saying the consequence, this is about $3,000, right?

[00:02:13] Speaker 03:
Well, Your Honor, that's... I mean, is there anything else, are there any other consequences?

[00:02:19] Speaker 03:
Is there any other consequence to the company from having it?

[00:02:22] Speaker 01:
The only other consequence to the company, Your Honor, is the precedent when the judge disregards the mitigating circumstances in the law.

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Doesn't your answer have to be that the statute provides for progressively increased penalties, so these points add up?

[00:02:38] Speaker 01:
Yes, Your Honor, it does.

[00:02:40] Speaker 01:
It does provide for increasing penalties and the... In future cases?

[00:02:44] Speaker 01:
In future cases.

[00:02:45] Speaker 03:
So in other words, in a future case, the ALJ could take account of the fact that the company here had a significant substantial or high negligence value in a previous case?

[00:02:56] Speaker 01:
Certainly with respect to the SNS and also high negligence if it's a similar citation, Your Honor.

[00:03:01] Speaker 03:
I see.

[00:03:02] Speaker 03:
So it could be used against the company in a later case?

[00:03:06] Speaker 01:
It could, Your Honor.

[00:03:07] Speaker 04:
I thought it was now mandatory.

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I thought on these withdrawal orders that after so many S&S violations, it's a mandatory withdrawal order, which is huge.

[00:03:20] Speaker 01:
You're talking about the POV regulations, Your Honor.

[00:03:23] Speaker 01:
And yes, once the mine gets on POV, it has to have a clean inspection with no S&S.

[00:03:30] Speaker 03:
You answer my question.

[00:03:31] Speaker 03:
Go ahead.

[00:03:33] Speaker 01:
Okay.

[00:03:33] Speaker 01:
Thank you, Your Honor.

[00:03:34] Speaker 01:
Um, first of all, with regard to citation 6679603, it involves a violation of 75400.

[00:03:41] Speaker 03:
Are you talking about the accumulation one?

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English instead of numbers, so we can follow your argument.

[00:03:50] Speaker 01:
Yes, Your Honor.

[00:03:51] Speaker 01:
The accumulation citation involves a transfer point where one belt was dumping onto another belt, and there are accumulations at those locations.

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And what happened in this case is on the 29th of October, one mock examiner found accumulation at that location and noted it in the book as he's required to do.

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Then later in the day at about 9 p.m.

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another mock examiner was in the area and at 9.30 he was walking past that area and he noted it was clear he was on his way to a transformer to examine a transformer.

[00:04:22] Speaker 01:
That was Dave Adams.

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Dave Adams said that area was clear at 9.30.

[00:04:26] Speaker 05:
The ALJ didn't credit his testimony.

[00:04:29] Speaker 05:
He said he wasn't there for that purpose and he really wasn't looking at it and so he didn't credit that statement about observation.

[00:04:39] Speaker 01:
You're right.

[00:04:39] Speaker 01:
Your honor.

[00:04:40] Speaker 01:
He found he gave it no weight.

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He didn't say that Mr Adams was incredulous.

[00:04:45] Speaker 05:
No, but that you know, that's not why he was there.

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He was passing through and had this other testimony.

[00:04:53] Speaker 05:
Was it Inspector Law?

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Yes, 27 years of experience and given the amount of accumulation in all

[00:05:01] Speaker 01:
Yes, Your Honor.

[00:05:03] Speaker 01:
Well, Inspector Law had his 27 years of experience, but Examiner Adams also had 30 years of experience as a certified examiner.

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And although he may not have been... Do you know of a case where we have upset a credibility finding like this?

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Can you cite any case where we've done that?

[00:05:20] Speaker 01:
Your Honor, the closest I could come to that was the Jim Walter case.

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And if the Court would remember the Jim Walter case, I believe Judge Henderson was on that.

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The judge had found that Mr. Maddux was incredulous.

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The way the court dealt with that, they didn't actually get to the credibility finding.

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What they did was they transferred it to a substantial evidence conclusion.

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They basically considered the judge's determination on Mr. Maddux, and they said, well, we don't have to go there because the substantial evidence does not support the conclusion of the administrative law judge.

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And the administrative law judge did not consider these other factors.

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So that's not a very strong case for you.

[00:06:01] Speaker 05:
Your Honor, Judge Taylor's question was, have we ever overturned a credibility determination in this type of context?

[00:06:10] Speaker 01:
I'm not familiar with the case, but this is not technically a credibility issue because the judge did not find Mr. Adams to be incredulous.

[00:06:20] Speaker 05:
Well, my mistake then, he gave no weight to Mr. Adams.

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statement of observation?

[00:06:27] Speaker 01:
Yes, Your Honor.

[00:06:29] Speaker 01:
For reasons that are not supported by the substantial evidence.

[00:06:32] Speaker 05:
Well, A.L.J.

[00:06:33] Speaker 05:
did give some reasons.

[00:06:36] Speaker 01:
He did.

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He said that Mr. Adams was not in the area specifically for the belt tail.

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He had to walk past it.

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But the same could be said for Inspector Law.

[00:06:46] Speaker 03:
He was not in the area to inspect the... But how can we... You've got a find finder who had

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Two witnesses, one said A, the other said B. And he said the first one was not, A was not murderous and B had more experience.

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I just don't see any basis for a public court to upset that.

[00:07:10] Speaker 01:
Well, your honor, let me handle that two ways.

[00:07:13] Speaker 01:
The first would be it's not even necessary to get to that issue, as in the Jim Walter case, because the court can decide this case based on the fact that there were mitigating circumstances and the judge did not credit those.

[00:07:26] Speaker 01:
The law was very clear that if there are mitigating circumstances, um, that there can be no high negligence turning off the bill, the turning off of the bell.

[00:07:37] Speaker 03:
Your Honor, that gets into the whole issue of continued normal mining operations, which Mock contends that the Secretary and the Judge have misinterpreted.

[00:08:00] Speaker 01:
continued normal mining operations, in the cases that are cited on that, if the court reads the cases, you'll see that all of the elements of the confluence of factors came together in all of the cases where continued normal mining operations came up.

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At the time of the citation, the elements were in place for continued hazard.

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For example,

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The Secretary cites Cypress Cumberland.

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Well, all of the elements of the fire triangle were present there because the belt was still in operation.

[00:08:35] Speaker 01:
U.S.

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steel, all of the elements of the factors to support the hazard were still in place because the defective cable was still in use.

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So this case is different than that because Inspector Law had turned it off.

[00:08:49] Speaker 01:
If you go down the road of saying, well, it could be turned on at any time, then virtually any citation could be deemed SNS because the court could just take that leap of logic and say that under continued normal mining operations, it doesn't matter if the belt's turned off or the condition is locked out.

[00:09:12] Speaker 01:
Because it can always, someone can go back and fix it.

[00:09:14] Speaker 03:
But he says specifically that the evidence suggests that the belt was reasonably likely to be re-energized in the course of normal mining operation.

[00:09:29] Speaker 03:
Yes, Your Honor, but he said that normal mining operations, the point you're making is exactly why there was a risk that this belt would be restarted.

[00:09:36] Speaker 01:
Well, in this case, Your Honor, the belt was turned off and there were several intervening factors that prevented the area from being cleaned, including a roof fall in by this area, as well as an accident where a miner was injured and

[00:09:54] Speaker 01:
In addition, the IMSA issued a 103K order which prevented the – so it places the operator in a very difficult position.

[00:10:01] Speaker 01:
The operator does what it's supposed to do, finds the problem, corrects – starts correcting it, takes steps as the standard says, and then it's placed in a position where it doesn't have time to fix it.

[00:10:12] Speaker 01:
And then it's cited, and then the secretary says, well, let's continue normal mining operation.

[00:10:16] Speaker 04:
But now at 2.30, they saw the accumulation.

[00:10:21] Speaker 04:
And either Webb or Adams said, in his testimony, all it took was a shovel.

[00:10:26] Speaker 04:
And so at least for an hour, until the roof collapsed and the 103K order was hours after that, they had at least an hour to take a shovel and remove that accumulation.

[00:10:38] Speaker 04:
Even if it wasn't there at 9, it was certainly there at 2.30.

[00:10:43] Speaker 01:
I think it took 2 hours to abate, Your Honor, if you look at the citation.

[00:10:47] Speaker 01:
The roof fall happened approximately a half an hour to an hour sometime in there, but it was 2.30 when Mr. Adams saw the accumulations and then

[00:10:58] Speaker 01:
between 3 and 3.30 when the roof fall occurred.

[00:11:02] Speaker 01:
So there wasn't a great deal of time to react.

[00:11:06] Speaker 04:
When the roof collapses, does everybody, I mean that 103k order wasn't in effect yet.

[00:11:12] Speaker 04:
Couldn't the fella with the shovel take the time to clear that accumulation?

[00:11:17] Speaker 01:
Well, Your Honor, it was a very significant roof fall.

[00:11:20] Speaker 01:
It crushed out the temporary belt.

[00:11:22] Speaker 01:
The operator has to start getting its available workforce to place cribbing and to keep the fall from spreading.

[00:11:29] Speaker 01:
So since they know there's no production going on, then they do have to, at some level, as one of the witnesses said, stage the work, take care of what's critical, and then come back to it.

[00:11:42] Speaker 01:
But they never had a chance to get back to it.

[00:11:46] Speaker 04:
Why was there such a gap?

[00:11:49] Speaker 04:
Because a roof collapse sounds to me like it's pretty serious.

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And then there's no inspector till 730 and no order till then, at least then.

[00:12:02] Speaker 01:
I can't answer that, Your Honor.

[00:12:05] Speaker 01:
I did want to briefly mention the other citation, because these go hand in hand as far as the law on mitigation, where they had this charging station in the primary escape way, and they had been cited for it previously.

[00:12:18] Speaker 01:
And the IMSA allowed them to keep the charging station in that primary escape way and lock it out to terminate the citation.

[00:12:25] Speaker 01:
And that's a term of art.

[00:12:26] Speaker 01:
And that happened on October 28th.

[00:12:29] Speaker 01:
On November 17th, the charging station was still in that location after it had had some work done on fire suppression, but it was still in that location.

[00:12:38] Speaker 01:
And Dave Adams discovered that, the general manager, and he took direct action, as the standard says on mitigation, he took steps to correct that problem by locking out that charging station.

[00:12:53] Speaker 03:
It's not fair to Mark to- Didn't the ALJ find it wasn't locked down?

[00:12:58] Speaker 01:
It wasn't locked out when Mr. Webb came on it, Your Honor.

[00:13:05] Speaker 01:
He immediately locked it out.

[00:13:07] Speaker 04:
But that was 10 days after the November 7th abatement.

[00:13:14] Speaker 01:
It was, Your Honor.

[00:13:15] Speaker 01:
To place it in context, Mock was looking at ways to use the charger in that area, working with Emsha.

[00:13:20] Speaker 01:
For example, the previous citation involved three pieces of equipment, and they fixed it by doing some airway construction to move a power center over to the belt entry.

[00:13:32] Speaker 01:
The same could have been done in this case, and they were looking at options to place airlock doors on either side of the charging station.

[00:13:39] Speaker 05:
And that's... How big is this charging station?

[00:13:43] Speaker 05:
Just approximately.

[00:13:44] Speaker 05:
Is it the size of that podium, or is it much smaller?

[00:13:49] Speaker 01:
It was described as being about the size of a conference table or a desk.

[00:13:55] Speaker 01:
Your Honor, I believe is the testimony.

[00:13:56] Speaker 01:
I'd have to look back at it.

[00:13:57] Speaker 05:
So it's a major obstruction in the primary escapeway.

[00:14:03] Speaker 01:
No, Your Honor, it's back in a crosscut.

[00:14:05] Speaker 01:
So the primary escapeway is unobstructed.

[00:14:08] Speaker 01:
It's moved back in a crosscut.

[00:14:10] Speaker 05:
I thought the citation included where

[00:14:13] Speaker 05:
where it was located, namely in the primary escape way.

[00:14:19] Speaker 01:
Only to the extent that it's not isolated from the primary escape way by ventilation controls.

[00:14:24] Speaker 01:
Uh, I don't understand what you're stopping or a airlock door.

[00:14:30] Speaker 01:
In other words, you've got the primary escape way with cross cuts on either side.

[00:14:34] Speaker 03:
And as you go forward, each cross cut would have an area is a cross cut sort of like a right turn or left turn off of the primary like if it's a quarter, yes, cross cuts goes off to the side.

[00:14:46] Speaker 01:
Yes, your honor.

[00:14:47] Speaker 03:
And that's for safety.

[00:14:48] Speaker 03:
Is that what it's for?

[00:14:48] Speaker 01:
It's just how they build the, they develop the entries.

[00:14:53] Speaker 03:
So following up on Judge Rogers' question, where was this conference table type, device, size device?

[00:15:02] Speaker 03:
Was it, I thought, like she did,

[00:15:06] Speaker 03:
No, Your Honor.

[00:15:07] Speaker 01:
It's back in one of the crosscuts in the primary.

[00:15:10] Speaker 01:
And it also has some virus suppression.

[00:15:12] Speaker 03:
But you're not arguing that doesn't mean the regulation doesn't apply, right?

[00:15:16] Speaker 03:
It still applies, doesn't it?

[00:15:19] Speaker 03:
You can't have these in those crosscuts, right?

[00:15:21] Speaker 01:
You cannot have them in the primary escape way and in the crosscuts associated with the primary escape way.

[00:15:28] Speaker 01:
Right.

[00:15:28] Speaker 03:
So this is all irrelevant to your argument.

[00:15:31] Speaker 05:
That's right.

[00:15:31] Speaker ?:
Right.

[00:15:32] Speaker 01:
as far as it being in it.

[00:15:34] Speaker 01:
Yeah.

[00:15:35] Speaker 03:
Well, it was there.

[00:15:35] Speaker 03:
You know, it wasn't there.

[00:15:37] Speaker 01:
No, we didn't contest the actual citation.

[00:15:40] Speaker 01:
What we contested was high negligence in that M should told us we could have it there as long as it was locked out.

[00:15:47] Speaker 01:
And then, um, because we were looking at options for using it and then, um, later when Anthony Webb discovered it on his own,

[00:15:57] Speaker 01:
and took actions, as the law says, to correct the problem by locking it out.

[00:16:03] Speaker 01:
He didn't have a chance to get it out of there before Mr. Cripps came and cited it, but he took action.

[00:16:09] Speaker 01:
And that's the key point here, because the law is very clear on mitigation.

[00:16:14] Speaker 05:
But he had already been cited.

[00:16:19] Speaker 01:
Yes, Your Honor.

[00:16:20] Speaker 05:
All right.

[00:16:21] Speaker 05:
So it's not as though there wasn't time to get this out of the escape

[00:16:25] Speaker 01:
Well, IMSA allowed it to stay there.

[00:16:28] Speaker 01:
They terminated the previous citation by saying, you can leave it there, Mock, as long as you block it out.

[00:16:33] Speaker 05:
Now, Mock didn't put in evidence of this previous citation.

[00:16:37] Speaker 05:
Is that correct?

[00:16:38] Speaker 01:
That's correct, Your Honor, but the parties didn't disagree.

[00:16:41] Speaker 01:
I mean, the Secretary.

[00:16:42] Speaker 05:
Well, I think there was disagreement, because Mr. Cripps, the Inspector Cripps, said he wouldn't have terminated it, the original.

[00:16:51] Speaker 05:
So I mean, it's not clear to me exactly what happened

[00:16:55] Speaker 05:
and why Mock thought it could leave the charging station in the crossway in the primary escape way.

[00:17:03] Speaker 01:
Well, Your Honor, Mr. Cripps didn't terminate the previous citation.

[00:17:06] Speaker 01:
The inspectors don't always terminate their own citation.

[00:17:08] Speaker 05:
I understand, but all I'm getting at is we don't know what, as far as a record is concerned, we don't know what happened with that primary escape way.

[00:17:18] Speaker 05:
We know what your client's witnesses stated.

[00:17:24] Speaker 01:
And we know what issue agreed that the previous citation was terminated by being locked out.

[00:17:29] Speaker 01:
We all, everyone agreed on that.

[00:17:31] Speaker 01:
It wasn't contested at the trial.

[00:17:34] Speaker 04:
But we don't know that it was not locked out for as long as 10 days.

[00:17:40] Speaker 01:
We know that at some point during those 10 days, your honor, Mock had additional fire suppression equipment installed on that.

[00:17:50] Speaker 01:
And by the way, I should note that there's fire suppression equipment on the roof above this too, so it's not just the one unit.

[00:17:58] Speaker 01:
At that point, it was taken out of the mind and a contractor, Fire Safety, Lowell Haller, they performed these repairs to it or these supplemental fire suppression.

[00:18:09] Speaker 04:
I thought that was before November 7th.

[00:18:12] Speaker 01:
It was, Your Honor, sometime in that 10-day period between October 28th and November 17th.

[00:18:17] Speaker 04:
Well, no, I'm talking about November 7th, which was when it was terminated, right?

[00:18:23] Speaker 04:
Or was it terminated on October 28th?

[00:18:25] Speaker 01:
It was terminated on November 7th, Your Honor.

[00:18:27] Speaker 01:
All right.

[00:18:28] Speaker 04:
And then 10 days later, the general manager sees that the padlock or whatever is gone.

[00:18:35] Speaker 04:
And we don't know it could have been that way for 10 days.

[00:18:37] Speaker 04:
That's what I was asking.

[00:18:39] Speaker 01:
Well, of course, there was no evidence of the record on this.

[00:18:42] Speaker 01:
But because it was removed at some point in time, the only reason the termination took from October 28 to November 7 is there were three specific pieces of equipment involved in the earlier citation, a power center, a charging station at another entry, and this charging station.

[00:18:58] Speaker 01:
The charging station at the other entry was removed from the mine.

[00:19:01] Speaker 01:
The power center was moved, was

[00:19:04] Speaker 01:
was isolated from the primary escape way by a wall or a stopping, and that solved that.

[00:19:10] Speaker 01:
And this particular charging station was allowed to stay there by IMCHA as long as it was locked down.

[00:19:16] Speaker 01:
And sometime after that, it was... This wasn't the one that was hauled up to the surface?

[00:19:21] Speaker 04:
This wasn't the one?

[00:19:22] Speaker 04:
Okay, so it did leave the state way to be fixed on.

[00:19:26] Speaker 01:
It did leave, and unbeknownst to Mock, somebody put it back at that specific location, Mock's Management, the contractor had worked on it at Mock's facility, and it got back to the location.

[00:19:39] Speaker 01:
After that, Anthony Webb was driving past it.

[00:19:41] Speaker 01:
He saw it there, and he stopped to look at it, and he said, it's not locked out.

[00:19:45] Speaker 01:
It's got to be locked out, as the prior citation said.

[00:19:50] Speaker 03:
So your argument is that this was a legitimate mitigating factor, because Webb, when he locked out the machine,

[00:20:09] Speaker 03:
is what the law requires, right?

[00:20:11] Speaker 01:
That's one part of our mitigation argument, Your Honor.

[00:20:14] Speaker 03:
That is one part.

[00:20:15] Speaker 03:
Okay.

[00:20:17] Speaker 03:
What do you do with the fact that the ALJ said, you know, that could be a legitimate mitigating factor, even if it was wrong?

[00:20:25] Speaker 03:
That is, even if what the inspector had said was wrong.

[00:20:29] Speaker 03:
But he said, in this case, it doesn't work because

[00:20:37] Speaker 03:
the requirements of the regulation.

[00:20:39] Speaker 03:
And he relied on the statement by Webb that says, we were doing the next best thing until we could get the charger out of it.

[00:20:50] Speaker 01:
Your Honor, if you look at the actual transcript on that.

[00:20:53] Speaker 01:
That's what I was just reading to you.

[00:20:54] Speaker 01:
I know, but if you page back a little bit before that, Anthony Webb said he thought that that met the requirements, but then when he was questioned, over time he said, well, we did the next best thing.

[00:21:06] Speaker 03:
And the ALJ looked at the whole transcript and concluded that that suggested

[00:21:16] Speaker 03:
the judge never.

[00:21:18] Speaker 01:
The judge never caps in terms of the credibility issue your honor.

[00:21:21] Speaker 03:
We require.

[00:21:23] Speaker 03:
That we visit in order for us to defer to a credibility determination to say.

[00:21:29] Speaker 03:
This is based on my assessment of the witness so obviously based on this.

[00:21:34] Speaker 03:
Assessment of the credit.

[00:21:36] Speaker 03:
He he says.

[00:21:38] Speaker 03:
He's interpreting.

[00:21:42] Speaker 03:
It's

[00:21:46] Speaker 03:
I knew that this wouldn't do the job.

[00:21:50] Speaker 03:
Thanks, Beth.

[00:21:51] Speaker 01:
Your Honor, our argument on mitigation, first of all, the law on mitigation is clear.

[00:21:55] Speaker 01:
If there's mitigation, there can be no high negligence.

[00:21:57] Speaker 03:
No, no, no, but the ALJ said there wasn't mitigation because he knew that blocking it out wouldn't satisfy the regulation.

[00:22:04] Speaker 01:
And that's a violation of the clearest definition of mitigation, which includes, it's including but not limited to actions taken to prevent or correct.

[00:22:15] Speaker 01:
So the judge violated the law on that respect because Anthony Webb clearly took an action to correct the condition that he found it in when he locked it out.

[00:22:25] Speaker 05:
As far as... I thought the commission had held that you could still find high negligence.

[00:22:33] Speaker 05:
even if there was mitigation, that it didn't absolutely preclude that determination.

[00:22:46] Speaker 01:
Your Honor, I think you may be referring to the Hidden Splinter case, where they say that the commission's definition of negligence is more nuanced than the inspector's definition of negligence.

[00:22:57] Speaker 01:
But the issue here is that the law says that mitigation is actions taken to prevent or correct a hazardous condition.

[00:23:05] Speaker 01:
That's exactly what Anthony Webb did.

[00:23:08] Speaker 05:
Well, I'll find the case.

[00:23:14] Speaker 05:
The name doesn't come to my mind right now, but I thought the Commission had clearly stated that, and the Commission does have this different view of negligence.

[00:23:23] Speaker 05:
But insofar as the ALJ's findings are concerned, they were consistent with what the Commission has said.

[00:23:33] Speaker 01:
Well, they're not consistent with part 100, Your Honor, 100.3D, and that is that where the operator takes action to prevent or correct the problem, and that's exactly what, I mean, the whole standard, they're not consistent with the standard of care for that matter.

[00:23:49] Speaker 01:
The secretary cites the standard of care as, it's a high standard of care that requires the operator to be alert for conditions and hazards in the mine which affect the safety and health of employees by taking steps necessary to correct

[00:24:04] Speaker 01:
or prevent such conditions or practices.

[00:24:07] Speaker 01:
So the standard of care, Mock complied with the standard of care, but it's strict liability, and there's levels of negligence.

[00:24:16] Speaker 01:
So Mock met the designated standard of care.

[00:24:21] Speaker 05:
So could I just understand, what is Mock's position as to where this charging station is allowed to be now?

[00:24:32] Speaker 01:
Your Honor, it's not allowed to be in the primary escape way or in the cross cuts unless it's isolated by either an airlock door or a stomping, which would basically place it in the next entry over.

[00:24:46] Speaker 04:
All right.

[00:24:46] Speaker 04:
Fine.

[00:24:46] Speaker 04:
And it can be used to maintain the escape way, something.

[00:24:49] Speaker 04:
I don't know what that means, but that was not in this case.

[00:24:52] Speaker 01:
That is true, Your Honor.

[00:24:53] Speaker 01:
It can, but Mock did not make that argument here.

[00:24:56] Speaker 01:
It wasn't using it for that purpose.

[00:24:58] Speaker 04:
OK.

[00:24:59] Speaker 04:
We'll give you a couple of times in response.

[00:25:04] Speaker 04:
Good morning.

[00:25:08] Speaker 06:
Good morning, Your Honours.

[00:25:09] Speaker 06:
I'd just like to clarify something that Boating Council said about the size of this equipment that was in there.

[00:25:18] Speaker 06:
First of all, Your Honours, the size of the charger.

[00:25:23] Speaker 06:
Your Honour, the transcript says it was six feet long.

[00:25:27] Speaker 06:
It was three feet wide and it was three feet high.

[00:25:32] Speaker 06:
This was a pretty sizable piece of equipment in that there were, it was an 800 and, excuse me, 480.

[00:25:39] Speaker 06:
None of this is relevant to the issue of class.

[00:25:42] Speaker 06:
Yeah, but Your Honor, I just wanted to clarify how big it was.

[00:25:45] Speaker 06:
Yes, I asked the question.

[00:25:47] Speaker 04:
Yes.

[00:25:48] Speaker 06:
I'm sorry, yeah.

[00:25:49] Speaker 04:
Thank you.

[00:25:49] Speaker 06:
I just wanted to clarify that it was indeed a very large piece of equipment that had

[00:25:56] Speaker 06:
wires suspended from the ceiling, electric wires.

[00:26:02] Speaker 06:
And Your Honors, I could not imagine that this piece of equipment was taken from the mine when it was first sighted.

[00:26:14] Speaker 06:
And there's this hole, unfortunately, in our evidence in that

[00:26:23] Speaker 06:
No one is sure what happened between when that first

[00:26:30] Speaker 06:
citation was issued on October 28 by Inspector Crip and when it was seen later on, when the second inspector terminated that first citation, the first citation, we don't know why that inspector gave this mine permission

[00:26:55] Speaker 06:
to lock it out.

[00:26:57] Speaker 06:
The language of this is clear.

[00:26:59] Speaker 06:
It says, no charging stations in the escape way.

[00:27:04] Speaker 06:
And both the trial counsel, regrettably, and as well as the inspector who had written, who had terminated the citation,

[00:27:15] Speaker 06:
Neither of them is with the Department of Labor and couldn't be reached.

[00:27:21] Speaker 06:
So that's the whole.

[00:27:22] Speaker 03:
Is it the department's position that because the regulation is clear, it makes no difference at all what the mine operator was told?

[00:27:35] Speaker 06:
No, Your Honor, but there must have been some extenuating circumstances.

[00:27:40] Speaker 03:
Suppose the mine operator were told, yes, the regulation says it can't be there, but locking it out satisfies the regulation.

[00:27:47] Speaker 06:
Well, that's clearly what this mine operator was told on that occasion.

[00:27:53] Speaker 06:
But Your Honor, the very next day, the very next day after the citation was issued, this piece of equipment was on the surface getting worked on.

[00:28:05] Speaker 06:
The fire suppression system, that was the company that upgraded it from a four bottle piece of equipment to a six bottle piece of equipment, which meant it was larger, it had more fire suppression parts to it.

[00:28:25] Speaker 06:
The very next day, they were at the mine upgrading

[00:28:30] Speaker 06:
the piece of equipment.

[00:28:32] Speaker 06:
So for our human sake, we may say that that's probably what happened.

[00:28:38] Speaker 06:
That's why

[00:28:41] Speaker 06:
this mine on that particular day under these particular circumstances was given the go-ahead to put the lock on it.

[00:28:49] Speaker 06:
They may have, for argument's sake, said, you know, this piece of equipment is on its way out right now.

[00:28:55] Speaker 06:
And this inspector may have said, well, let's lock it out until it's above ground, because we're not sure, because the regulations are clear.

[00:29:06] Speaker 06:
And they say, this piece of equipment ought not to be in this escape way.

[00:29:17] Speaker 06:
And Your Honor, this company got one bite of the apple in that.

[00:29:23] Speaker 06:
they were able to sort of, quote unquote, get away with this, but doing the next best thing.

[00:29:31] Speaker 06:
And that's not appropriate.

[00:29:33] Speaker 06:
The language is clear.

[00:29:35] Speaker 06:
It says that it ought not to be there.

[00:29:38] Speaker 06:
And this is an obstruction issue with miners trying to leave a mine in an emergency situation, perhaps claustrophobic, perhaps anxious.

[00:29:51] Speaker 06:
in an emergency and this huge piece of equipment is there.

[00:29:57] Speaker 06:
They knew about it and between one and two days before the second citation was issued, the most senior person at this operation saw this equipment there and

[00:30:13] Speaker 06:
had plenty of time to move it, and he chose not to do so.

[00:30:17] Speaker 06:
He chose to do the best thing, and that's not good enough in the mind.

[00:30:24] Speaker 06:
And regarding the accumulations, citations, Your Honor,

[00:30:32] Speaker 06:
We allege that both the SNS as well as the negligence findings, the high negligence findings are appropriate in this situation.

[00:30:45] Speaker 06:
According to the MAC company witnesses,

[00:30:56] Speaker 06:
whatever is happening, whenever there is a hazard in the mind, it's entered into their examination book, and when the work is done, correctively, it's entered in the examination book, and two consecutive shifts, the afternoon shift on October 28th, and

[00:31:20] Speaker 06:
The shifts are broken down.

[00:31:22] Speaker 06:
It's from 7 to 3, 3 to 11, 11 to 7 in a 24-hour period.

[00:31:26] Speaker 06:
So for that afternoon shift, the examiner noted in their examination book that the permanent belt needed to be cleaned.

[00:31:37] Speaker 06:
And this was noted again in the next shift, the midnight shift, that this area needed to be cleaned.

[00:31:47] Speaker 06:
And so the ALJ and Judge Pius appropriately determined that there was no intention of cleaning this, and credited the inspector rather than Mr. Adams, because Mr. Adams arrived at the mine at 9 o'clock at night.

[00:32:05] Speaker 06:
At 9.30, he went.

[00:32:08] Speaker 06:
in the area, the sighted area, and as was pointed out before, he admitted that he was not concentrating on the accumulations.

[00:32:20] Speaker 06:
He realized that the mine, the operation, production was going on, but didn't pay close attention to it because he was more concerned with this belt transformer that was problematic.

[00:32:32] Speaker 06:
So he sort of bypassed accumulations and went to fix the

[00:32:37] Speaker 06:
the belt, when he returned at 2.30 in the morning, he saw that the whole area was gobbled up, and that's when he shut the belt down.

[00:32:50] Speaker 06:
The opposing consul also mentioned that

[00:33:01] Speaker 06:
for purposes of mitigation, that the other belt was already shut down.

[00:33:06] Speaker 06:
Of course, the other belt was already shut down, but not because of the accumulation.

[00:33:12] Speaker 06:
They were in the process of moving that belt.

[00:33:15] Speaker 06:
Think of, if you will, the permanent belt being the top of a tee.

[00:33:19] Speaker 06:
And the bottom of the tee is the temporary belt, the pony belt.

[00:33:24] Speaker 06:
And the pony belts feed onto the permanent belt as they move along.

[00:33:29] Speaker 06:
And the belt, the temporary belt that was stopped wasn't because of anything except they were moving it to a different location.

[00:33:40] Speaker 06:
So that's not mitigation as far as we could tell.

[00:33:44] Speaker 06:
There's no mitigation here in either case.

[00:33:48] Speaker 06:
And the secretary submits that the commission's and the ALJ's findings should be upheld.

[00:33:57] Speaker 06:
We have no more questions.

[00:34:00] Speaker 06:
Thank you.

[00:34:00] Speaker 03:
I just have one quick question before you hold on.

[00:34:06] Speaker 03:
You say, I was curious, in your brief, you say that we reviewed

[00:34:35] Speaker 03:
Your brief says, I'm sorry to write down the page number, but it says our review of the administrative law and commission decision is de novo.

[00:34:55] Speaker 03:
Is that right?

[00:34:57] Speaker 06:
Yes, sir.

[00:34:58] Speaker 06:
And I think the report has de novo review.

[00:35:05] Speaker ?:
Really?

[00:35:05] Speaker 03:
We've held that our review is for substantial evidence.

[00:35:15] Speaker 03:
The case you cite for this, by the way, is a commission decision.

[00:35:24] Speaker 03:
Maybe the commission reviews it to no vote, but I would have thought the department would understand our standard of review here.

[00:35:36] Speaker 06:
It's based on substantial evidence.

[00:35:41] Speaker 05:
Well, I'm looking at pages 17 through 18 of your brief.

[00:36:09] Speaker 06:
Did you state 17, Your Honor?

[00:36:11] Speaker 05:
17 to 18.

[00:36:13] Speaker 05:
Did you state the standard of review at some other point in your brief?

[00:36:24] Speaker 03:
Where do you cite American Cole?

[00:36:29] Speaker 04:
American Cole.

[00:36:34] Speaker 02:
Page 20.

[00:36:35] Speaker 02:
Page 20.

[00:36:46] Speaker 03:
It doesn't make any sense.

[00:36:47] Speaker 03:
You agree that our review is not the novel here, right?

[00:36:50] Speaker 03:
Our review is a substantial evidence, right?

[00:36:53] Speaker 03:
I just wanted to be sure you agree with that.

[00:36:55] Speaker 03:
That's fine.

[00:36:56] Speaker 03:
That's all I mean.

[00:36:56] Speaker 06:
But Your Honor, if I may, could you use 17 or 18?

[00:37:00] Speaker 06:
It's entitled standard of review.

[00:37:03] Speaker 05:
That's all right.

[00:37:06] Speaker 05:
We'll clear this up later.

[00:37:07] Speaker 03:
Thank you.

[00:37:08] Speaker 03:
You agree with me about the proper state.

[00:37:11] Speaker 05:
Yeah, that's what your brief says.

[00:37:13] Speaker 05:
Thank you.

[00:37:17] Speaker 04:
Okay, why don't you take a minute, Mr. McHugh.

[00:37:21] Speaker 01:
Very briefly, I did want to mention that the reason we're challenging the SNS on the belt is because the confluence of factors was interrupted when the belt was turned off.

[00:37:30] Speaker 01:
And the commission has long held a confluence of factors test on cases involving ignition.

[00:37:37] Speaker 05:
On cases involving what?

[00:37:39] Speaker 01:
Sorry, Your Honor, possible ignition.

[00:37:42] Speaker 05:
Ignition, thank you.

[00:37:43] Speaker 01:
As far as whether or not Mr. Adams was concerned with the belt tail, as counsel said, he was clearly concerned.

[00:37:53] Speaker 01:
He's an experienced examiner.

[00:37:55] Speaker 01:
He's concerned with any hazard.

[00:37:56] Speaker 01:
That's his certified duty, to look for hazards.

[00:38:00] Speaker 01:
And he said that

[00:38:01] Speaker 01:
He was not making the belt exam at the time.

[00:38:03] Speaker 01:
He went into the area because we had a belt transformer I had to make.

[00:38:07] Speaker 01:
But I observed the belt tail.

[00:38:08] Speaker 01:
Clearly he says that.

[00:38:10] Speaker 01:
The belt was running, the pony belt was dumping on it, and the area was wet.

[00:38:13] Speaker 01:
The tail rotor was clear, and that's all I seen.

[00:38:16] Speaker 01:
So he was in the area.

[00:38:18] Speaker 01:
He's a trained examiner.

[00:38:20] Speaker 05:
And the ALJ was focusing on the fact that Adams was talking about the area being wet.

[00:38:26] Speaker 01:
Yes, Your Honor.

[00:38:28] Speaker 05:
That's it.

[00:38:29] Speaker 01:
I don't think, I mean, it's clear from his testimony that he was talking about more than that.

[00:38:34] Speaker 01:
He says the tail rotor was clear.

[00:38:35] Speaker 01:
I think it might have been a mistranscription.

[00:38:38] Speaker 01:
It may have been tail motor.

[00:38:40] Speaker 01:
But as far as leaping back from the time Adams turned it off at 2.30 in the morning back to the prior afternoon, the judge made an inference there.

[00:38:53] Speaker 01:
And the inference is not appropriate.

[00:38:58] Speaker 01:
In order for an inference to be appropriate, it has to be rationally related to the facts.

[00:39:01] Speaker 01:
It's derived from – in the Garden Creek case, recognition of an inference is largely influenced by obtaining direct evidence necessary to establish the fact to be inferred.

[00:39:15] Speaker 01:
Here, the record – in that case, the record did not establish that the secretary was unable to obtain the inference.

[00:39:21] Speaker 01:
the evidence to support the inference.

[00:39:24] Speaker 01:
The secretary cited two cases involving reverse FOIL on inference and said, well, the judge could take an inference because one party doesn't have access to the evidence.

[00:39:34] Speaker 01:
But those cases don't apply in IMSHA because an inspector has unfettered access to these minors to interview them.

[00:39:40] Speaker 01:
So all this idea about the secretary not being able to have access to evidence doesn't apply in this case because this inspector does.

[00:39:50] Speaker 01:
I also wanted to note in further response to why why mock allowed that charger to stay there after the 28th citation.

[00:40:00] Speaker 01:
Anthony Webb says it quite quite clearly question.

[00:40:04] Speaker 01:
Did you believe the charger could be in the primary escape way if it was locked out answer?

[00:40:08] Speaker 01:
I thought at the time, yes, because we were trying to figure out a way to utilize that charger to do it in a way to satisfy the law, because as Mr. Cripps said earlier, if the charger was necessary, we had to figure out a way we could do it and still comply with the regulations.

[00:40:25] Speaker 01:
contextually, Mock was trying to consider a way to keep that charger there by building airlocks on either side to isolate it from the primary escape way so that then they could bring the scoops in and charge them without exposing the primary escape way to the charger.

[00:40:42] Speaker 01:
So it's not like they just left it in there in an

[00:40:45] Speaker 01:
to disregard the law and to commit negligence.

[00:40:50] Speaker 01:
That's another mitigating factor, actually.

[00:40:52] Speaker 01:
So the judge disregarded that mitigating factor.

[00:40:54] Speaker 01:
Didn't even discuss it.

[00:40:56] Speaker 01:
Failed to discuss it.

[00:40:57] Speaker 01:
It's inconsistent with the substantial evidence.

[00:40:59] Speaker 04:
You need to wind up your argument.

[00:41:00] Speaker 04:
You're over your time.

[00:41:01] Speaker 01:
Thank you, your honor.

[00:41:02] Speaker 01:
I'm sorry.

[00:41:03] Speaker 01:
So for the reasons we've stated, because there was mitigation and because the confluence of factors was interrupted, mock requests that the court reversed the judge on his finding of high evidence with respect to the two citations and the SNS.

[00:41:18] Speaker 01:
Thank you.

[00:41:18] Speaker 04:
Thank you.