may please the court my name is james mchugh enough represent mark mining in this case most mining operation underground coal mining johnson city illinois using continuous mining sections as well as long sections there are two citations that are on on to another belt and there are accumulations at those locations and what happened in this case is on the twenty ninth of october one mark examiner found accumulation at that location and noted in the book as he's required to do then later in the day at about nine pm another mark examiner was in the area and at nine thirty he was walking past that area and he noted it was clear he was on his way to a transformer to examine a transformer that was david adams dave adams said the area was clear at j didn't credit testimony 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 you're right your honor he found he gave it no weight he didn't say that mr adams was incredulous you know but that you know that's not why he was there he was passing through and they had this other testimony was it in specter law wrong twenty seven years experience and given the amount of accumulation yes your honor will inspect the law had just twenty seven years of experience but inspector examiner adams also had thirty years of experience as a certified exam you're the closest i can come to that was the jim walter case and if the court would remember the jim walter case i believe judge henderson was on that the judge had found that mr maddicks was incredulous the way the court dealt with that they didn't actually get to the credibility finally what they did was they transferred it to a substantial evidence conclusion they basically considered the judge's terminations on mr maddox and they said well we don't have to go there because the substantial evidence does not overturned a credibility determination in this type of contact i'm not i'm not familiar with the counties but but this is not technically a credibility issue because the judge did not find mr some reasons he did he said that mr adams was not in the area specifically for the bell trail he had to walk past it but the same could be said for inspector wall he was not in the area to inspect the gym alter case because the court can decide this case based on the fact that there were mitigating circumstances and the judge did not credit those the law was very clear that if there are mitigating circumstances that there can be no high negligence  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 the factor the confluence of factors came together in all  there because the belt was still in operation u s steel all of the elements of the can of the factors just a hazard were still in place because the defective cable was still in use so this case is different than that because inspector law had turned it off if you go down the road of saying well it could be turned on and any time then virtually any citation could be deemed it s and s because the court could just take that leap of logic and say that normal mining operations the point you're making is exactly why the risk is strong well in this case your over the belt was was turned off and there were several intervening factors that prevented the area from being clean including a roof fall in by difficult position the operator does what it's supposed to do finds the problem correct starts correcting it takes steps as a standard says and then is placed in a position where it doesn't have time to fix it and then the minutes cited and then the secretary says well let's continue  take the time to clear that accumulation well your honor it was a very significant roof fall it crushed out the temporary belt the operator has to start getting its available work force to place creeping into keep the ball from spreading so it's that they know there's no production going on then they do have to at some level as one of the witnesses said it stage the work take care of what's critical and then come back to that they never had a chance to get back to it  y was there such a gap because the roof collapse sounds to me like it's pretty serious and then there's no inspector till seven thirty and no order tell them at least  should allow them to keep the site charging station in their primary escape way and walk it out to terminate a citation and that's a term of art and that happened on october twenty eighth and then on november seventeenth the charging station was still in that location after it had had some work done a partial question but it was still in that location and dave adams discovered that the the general manager and he took direct action as the case as the standard mark was looking at ways to use the charter in that area working with him ship for example the previous citation involve three pieces of equipment and they they fixed it by doing some some airway construction to move the power center over to the entry 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 and that's home think its charging station just approximately the size of that escape way but you know you're on its back in a cross cut so the primary scape ways unobstructed gets moved back across i thought a citation included that where where it was located and then because we were looking at options for using it and then later when anthony webb discovered it on his a and took actions as the wall says to correct the problem  locking it out he didn't have a chance to get it out there out of there before mr cripps came came and cited it but he took action and that's the key point here because the law was very clear on mitigation but he had all not he but m cripps said he wouldn't have terminated the original so i mean it's not clear to me exactly what happened and why mock thought it could lead to charging station in the crossway  the primary escape way well your honor mr crichton terminate the previous citation the inspectors don't always terminate their own side i understand but all i'm getting at is we don't know what size a record is concerned we don't know what happened with that primary escape way we know what your client's witnesses stated and we know what it should read that the previous citation was terminated by being walked out we all everyone agreed on that and and a contractor fire safety lol however holder they perform these these repairs to it or these help little parts pression i thought that was before november seventh it was around or some time in that ten day period between october twenty eighth november seventeenth but now i'm talking about november seventh which was when it was terminated right and was it terminated in october twentieth it was terminated on november seventh you're all right and they let him days later the general manager sees that the padlock or whatever is gone we don't know it could have been that way for ten days that's that's when i was asking well of course there was no evidence of a record on this but but because it was removed at some point in time the only reason the term nation took took from october twenty eighth november seventh is there were three specific pieces of equipment involved in the earlier citation a power center a charging station and another entry in this charging station the charging station of the other  removed from the mine the power center was moved was was was isolated from the farmer's gateway by a wall or a stopping and that solved that and this picture charging station was allowed to stay there by him  specific location much management the contractor that worked on it at moss facility and it got back to the location and then after that anthony webb was driving past it he saw it there he stopped to look at it and he said it's not you charge your own or if you look at this the actual transcript on that and then i was just reading i know but if you if you page back a little bit before that anthony webb said he thought that that met the requirements but then when he was judge violated the wall in that respect because if they were clearly took an action to correct the condition that he found it there when he walked out as far as why i thought the commission had held that you could still nuanced than the inspectors definition of negligence but the the issue here is that the law says that mitigation is actions taken to prevent or correct a hazardous condition and that's exactly what  i'll find the case in the name doesn't come to my mind right now but i thought the commission clearly stated that in the commission does have this different view of negligence but in so far as the  findings are concerned they were consistent with what the commission has well there are not consistent with part one hundred year or one hundred point three d and that is that that where the operator takes action to prevent or correct the problem and that's exactly what i mean the whole standards are not consistent with the standard of care for that matter the the secretary cites the standard of care it has it's a high standard of care that requires the offer to be alert for conditions and hazards in the mine which affect the safety and health of employees by taking steps necessary to correct or prevent such conditions or practices so the standard of as to where this charging station is allowed to be now your honor it's allowed to it's not allowed to be in the primaries cape way or in the crosscuts unless it's isolated by either an airlock door or stopping which would but basically place it in the next entry over and it sounds it can be used to maintain this cave play something i don't know what that means but that was not it is that is true your honor can but mark did not make that argument here it wasn't using it for that purpose ok we'll give you a couple times and th s i could not imagine that this piece of equipment was taken from the mind of when it was first sighted and there's there's this whole unfortunately in our evidence in that no one is sure what happened between when that first citation was issue which meant it was larger and had more fire suppression parts to it the very next day they were at the mine of breathing the piece of equipment so according to the mach company with the service the whatever is happening whenever there is a hazard in the mine it's it's entered into  he was not making develop exam at the time he went into the area because we had a bell transformer i had to make but i observe the belt tail clearly he says that the belt was running the pony belt was dumping on it and the area was wet the tail rotor was clear and that's all i seen so off at two thirty in the morning back to the prior afternoon the judge made an inference there and the inference is not are for an inference to be appropriate it has to be rationally related to the facts it's derived from a recognition in the government pretty case recognition of an inference is largely influenced by by obtaining direct evidence  the secretary not being able to have access to evidence in the pi in this case because this this inspector also wanted to know in further response to why why mark allowed that charger to stay there after the twenty eight citation anthony webb says quite quite clearly question did you believe the charges could be in the primary escape way for it was locked out answer i thought at the time yes because we were trying to figure out a way to utilize that charge or to do it in a way to satisfy the wall 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 so was trying to consider a way to keep that charger there by building airlocks on either side to isolate it from the primaries gave way so that then they could bring the scoops in and charge him without exposing the primary scape way to the charger so it's not like they just left it in there in two to disregard the law and to to commit negligence that you know that's another mitigating factor actually so the judge disregarded that mitigating factor didn't even discuss it failed to discuss