Lone Mountain Processing, Inc.

Plain-English summary

Lone Mountain Processing operated a large underground coal mine where MSHA cited the company after finding that roadway posts required during pillar recovery were missing or improperly placed. Judge T. Todd Hodgdon found no violation in the No. 2 heading, but found that the No. 3 heading condition violated the roof-control standard and was significant and substantial. He found the violation was not an unwarrantable failure because the miner who failed to install the posts was not a supervisor and the Secretary did not show deficient company supervision, training, or discipline. The judge modified the citation, reduced the negligence from high to moderate, changed it to a section 104(a) citation, and assessed a $1,000 penalty instead of the proposed $655.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.207(c)(2)
• Outcome: The citation was modified, affirmed as modified, and assessed a $1,000 civil penalty.
• Key point: A serious roof-control violation was established, but the rank-and-file miner's conduct was not imputable as an unwarrantable failure.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                          2 Skyline, Suite 1000
                           5203 Leesburg Pike
                      Falls Church, Virginia 22041


                                     February 9, 2000

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 99-90
Petitioner : A. C. No. 15-02263-03551
v. :
: Darby Fork No. 1
LONE MOUNTAIN PROCESSING INC., :
Respondent :

                                       DECISION

Appearances: J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, Lexington, Kentucky,
and Anne Wathen O’Donnell, Esq., Arch Coal, Inc., St. Louis, Missouri, for
Respondent.

Before: Judge Hodgdon

    This case is before me on a Petition for Assessment of Civil Penalty filed by the

Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against
Lone Mountain Processing, Inc., pursuant to section 105 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815. The petition alleges a violation of the Secretary’s mandatory
health and safety standards and seeks a penalty of $655.00. A hearing was held in Gate City,
Virginia. For the reasons set forth below, I modify the citation and assess a penalty of $1,000.00.

                                       Background

     The Darby Fork No. 1 Mine is a large, underground coal mine operated by Lone

Mountain, a subsidiary of Arch Coal, Inc., in Harlan County, Kentucky. On October 10, 1998, a
fatal roof fall accident occurred at the mine. Among the many inspectors who went to the mine in
the late night on October 10 and the early morning of October 11, was MSHA Coal Mine
Inspector William R. Johnson. Johnson’s assignment was not to investigate the accident, but to
conduct a "spot" inspection of the rest of the .002 unit where the accident occurred. Since the
accident happened in the No. 4 heading, he inspected the Nos. 1, 2 and 3 headings.

    As a result of his inspection, Inspector Johnson issued Citation No. 7456174, alleging a

violation of section 75.207(c)(2) of the Secretary’s regulations, 30 C.F.R. § 75.207(c)(2), in that:

                                            202

            The approved pillar plan was not being followed on the .002 unit
            inby the pillar line because the roadway leading from the solid
            pillar to the final stump in the No. 2 and No. 3 headings, had not
            been narrowed down to sixteen feet. The timbers set for the
            roadway in the No. 2 heading were twenty feet apart. The right
            side timbers needed to establish the sixteen foot roadway in the
            No. 3 heading had not been installed.1

(Jt. Ex. 2.)

                          Findings of Fact and Conclusions of Law

    Section 75.207(c)(2) provides, in pertinent part, that:

                   Pillar recovery shall be conducted in the following manner,
            unless otherwise specified in the roof control plan:

                   ....

                    (c) Before mining is started on a final stump--

                   ....

                   (2) Only one open roadway, which shall not exceed 16 feet
            wide, shall lead from solid pillars to the final stump of a pillar.

Concerning this citation, the company argues that, with regard to the No. 2 heading, there was no
violation at all, and with regard to the No. 3, the violation was neither "significant and
substantial" nor an "unwarrantable failure." I find that the Secretary has failed to prove that there
was a violation of the regulation in the No. 2 heading and that the violation in the No. 3 was not
the result of an "unwarrantable failure" on the part of the operator.

    It should be noted at the outset, that there is no dispute that the Respondent was

conducting pillar recovery or that the roadways in question led from a solid pillar to the final
stump. Likewise, the parties agree that the company’s roof control plan did not specify a
different method of conducting pillar recovery from the regulation.

No. 2 Heading

    Inspector Johnson testified that he determined that the roadway in the No. 2 heading was

20 feet wide by standing against the outby corner of the intersection of the No. 2 heading and the

    1
     This is an edited version of the text of the citation. It originally included findings

concerning the No. 1 heading which were removed by a subsequent modification. (Jt. Ex. 3.)

                                            203

crosscut, and running his tape measure along the ground, diagonally across the intersection, until
it touched what he believed to be the middle roadway post (the No. 3 timber). He stated that
Brad Sears, the mine superintendent, was with him and observed the measurement. He further
claimed that "I just told him what I measured and what I found," and that Sears made no
response. (Tr. 57.)

    On the other hand, Sears maintained that when Johnson took the measurement, "I saw 16

feet and two inches is what I saw." (Tr. 342.) He further declared that: "The only thing that I
remember him saying that it looked like it may widen out. No, he didn’t say anything about us
having a citation or anything of that nature." (Tr. 344.)

   Gaither Frazier, the mine manager, testified that when he was informed by the mine’s

safety manager that the company was receiving a citation for the wide roadways, he went to the
No. 2 heading to measure the roadway. He stated that: "I lined myself up best I could outby the
corner and measured over to the timbers on the left with a metal tape. And I measured 16 feet
two inches . . . ." (Tr. 375.)

   After taking this measurement, he went and got some other people and went back to the

heading two or three times to have them witness his measurement. Among the people that he had
go with him were Sears, Dale Jackson (a fire-boss at the mine), Dennis Cotton (the MSHA
inspector conducting the fatality investigation), Gary Harris (another MSHA inspector) and
George Johnson (a Kentucky mine inspector). He asserted that every time he measured the
roadway, it was sixteen feet, 2 inches. He stated that after showing the measurement to Inspector
Cotton, "I came away from the thing feeling that he didn’t think there was a violation there."
(Tr. 379.)

     Sears corroborated Frazier’s testimony. He said that when the company learned that the

Nos. 1 and 2 headings were included in the violation, he went back to the headings with Frazier,
Cotton and, possibly, Jackson because "we couldn’t really see how there was anything wrong
with it, you know, that it should be included." (Tr. 347.) He related that when they measured the
roadway in the No. 2 heading, it measured "16 feet or close to 16 feet." (Tr. 348.)

   Inspector Cotton, who apparently could have resolved the issue one way or another, gave

testimony that can only be described as evasive. He admitted accompanying the others to
witness the measurement of the roadway in the No. 2 heading and he admitted that he observed a
measurement of 16 feet, but claimed that he did not know what the measurement represented
because:

                    I wasn’t sure what they wanted me to observe, but I had my
           mind on the accident scene. As to the lead investigator, I have a
           lot of responsibility on me, and I wanted to do that job to the best of
           my ability. I had a lot of people that --- my primary concern
           was this accident scene, the area over there.


                                           204

He even admitted that in observing the 16 feet measurement he actually observed the
numbers on the tape measure, but he never was specific as to exactly what he observed being
measured.2

   I find Inspector Cotton’s testimony distressing. While his reluctance to contradict his

colleague is understandable, such reluctance should not, and cannot, override his obligation to
provide the hearing with the facts, as he observed them, in a clear and concise manner.

    Operators are frequently reproached in decisions for not having brought a fact or

disagreement to the attention of the inspector at the time of the inspection, and then bringing it
up for the first time at the hearing. Here the company questioned the citation, made its own
measurements and then attempted to bring the discrepancy to MSHA’s attention as soon as
possible. While the best course would have been to bring it to Inspector Johnson’s attention,
contacting Inspector Cotton was not unreasonable. Now the Respondent, instead of having taken
care of the matter appropriately, finds that its inspector witness’ testimony has become more
imprecise the nearer the hearing gets.3

    If Inspector Cotton really was so involved in the accident investigation that he could not

pay attention to anything else, he should have informed the company’s representatives that he
could not go with them. Once he agreed to accompany them, it was his duty as an inspector to
give the matter his complete and undivided attention, to ascertain exactly what he was being
asked to do, and to report the facts as he observed them, "letting the chips fall where they may."

     I find that the Secretary has failed to prove that the roadway in the No. 2 heading was

more than 16 feet wide. In making this finding, I accept the testimony of the company over that
of Inspector Johnson. I can think of no explanation for the inspector’s mistaken measurement,
nor do I believe that he has been deliberately misleading. However, the weight of the evidence
supports the testimony of Frazier and Sears. In this regard, I note that Sears, although when he
testified about the width of the roadway was testifying on cross examination, was the Secretary’s
witness. Further, while Frazier was the company’s witness, he ceased working for Lone
Mountain or any of its related companies on June 7, 1999, and, thus, would not have been under
any apparent pressure to testify in the company’s favor. Finally, vague as Inspector Cotton’s
testimony was, it tends to corroborate the testimony of Frazier and Sears, more than refute it, and
certainly adds nothing to Inspector Johnson’s testimony.

    Consequently, I conclude that the company did not violate its approved pillar plan, or

section 75.207(c)(2), when it set its roadway posts in the No. 2 heading. The citation will be
modified accordingly.

   2
      Cotton’s colloquy with the judge, set out in the Appendix, demonstrates the elusive

nature of his testimony on this issue.
3
He evidently was more specific when he gave his deposition. (Tr. 304-05.)

                                           205

No. 3 Heading

    As noted above, the Respondent agrees that none of the required roadway posts had been

installed on the right side of the roadway leading to the final stump in the No. 3 heading. The
company argues, however, that this violation was neither "significant and substantial" nor an
"unwarrantable failure." I find that the violation was S&S, but not an "unwarrantable failure."

   Significant and Substantial

    A "significant and substantial" (S&S) violation is described in Section 104(d)(1) of the

Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." A violation is properly designated S&S
"if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out four

criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-
04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms of "continued normal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is significant and substantial must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007 (December 1987).

     In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying

violation of a safety standard; (2) a distinct safety hazard, a measure of danger to safety,
contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious
nature. Mathies, 6 FMSHRC at 3-4.

     Everyone agrees that the hazard created by failing to narrow the roadway to 16 feet with

timbers is an increased danger of roof falls. Nevertheless, the Respondent argues that in this case
there was no hazard created in the No. 3 heading because the company was not going to mine the
final stump. If the final stump had not, in fact, been mined, this might be a valid argument. The
evidence indicates, however, that not only was this a dangerous area even if no mining were
performed, but also that the company did mine at least part of the final stump.

     Ricky Clark, the continuous miner operator, testified that he unilaterally decided not to

set the roadway timbers on the right side of the No. 26 pillar (final stump) because he was not
going to mine the pillar. He said that the bottom was bad and he was afraid he would get the
miner stuck. He admitted, however, that he did mine two cars worth of coal, which he estimated
to be about two feet of the pillar, in the hopes that it would cause the roof to fall.

                                             206

    Frazier testified that when he observed the No. 26 cut, after the citation was issued, that:

"It looked short. It looked like maybe from the corner that probably ten feet may have been
taken out of it." (Tr. 383.) Conversely, Inspector Johnson testified that in his opinion the entire
cut had been taken. He based this on the fact that when he looked into the cut he could not see
the back of it with his cap light and the fact that if all, or almost all, of the cut had not been taken,
he would not have been able to see into the No. 24 cut. I credit his testimony for the following
reasons.

    Since the company’s defense is that the violation was not S&S because the cut was not

mined, its witnesses would not want to admit that it had been. However, both Clark and Frazier
acknowledged some of it had been mined. Therefore, the next best defense is to minimize the
extent of the cut. Since Clark decided not to place the roadway posts on his own, without
consulting or informing the foreman, it was clearly in his interest to claim that only a few feet
were mined. But his testimony is contradicted by Frazier, who admitted that at least ten feet had
been cut. Thus, the Respondent’s own evidence supports a finding that a minimum of ten feet of
the No. 26 pillar had been mined.

   Inspector Johnson’s reasons for concluding that the No. 26 cut had been entirely made

were logical. Obviously, no one could go in and accurately determine the exact depth of the cut.
When comparing the inspector’s testimony with the company’s obvious interest in minimizing
the amount of coal taken, I find the Inspector’s testimony to be more credible.

    Turning to whether there was a reasonable likelihood of injury, I note that pillar recovery

is inherently dangerous under the best of circumstances. When the final pillar is removed, the
roof is supposed to fall. Thus, mining the final stump is one of the more dangerous, if not the
most dangerous, activities performed in underground coal mining.4 Moreover, in this case, the
best of circumstances did not exist. The floor was "heaving" so badly that Clark wanted to get
his continuous miner out of there.5 Yet, instead of installing the roadway posts, he attempted to
mine coal from the No. 26 stump, which, without the roadway posts, made an unstable situation
even worse.6

     I have little difficulty in concluding that a serious, probably fatal, injury was reasonably

likely to occur in these circumstances. The company was fortunate that it did not. But the fact
that it did not, does not mean that a serious injury was not reasonably likely. As the Commission

    4
       The Secretary offered into evidence accident reports involving two fatal roof falls at

mines that occurred during mining of the final stump. Both reports concluded that failure to
install the required roadway posts contributed to the accident. (Govt. Ex. 2 & 3.)
5
Inspector Johnson testified that pressure from the roof comes down through the pillars
and causes the bottom to “heave up.” (Tr. 79.)
6
In fact, Clark testified that the reason he mined in the No. 26 pillar was to try “to get
that intersection to fall where it wouldn’t hurt us later on.” (Tr. 196.)

                                              207

has long held: "The question of whether a violation is S&S must be resolved on the basis of
conditions as they existed at the time of the violation and as they might have existed under
continued normal mining operations. Eastern Associated Coal Corp., 13 FMSHRC 178, 183
(February 1991); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985)." Manalapan
Mining Co., Inc., 18 FMSHRC 1375, 1382 (August 1996). Accordingly, I conclude that the
violation was "significant and substantial."

   Unwarrantable Failure

   The Commission has held that unwarrantable failure is aggravated conduct constituting

more than ordinary negligence by a mine operator in relation to a violation of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007, 2010 (December 1987). "Unwarrantable failure is characterized by such
conduct as ‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference’ or a ‘serious lack of
reasonable care.’ [Emery] at 2003-04; Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189,
193-94 (February 1991)." Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994); see also
Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s
unwarrantable failure test).

    The Secretary’s argument that this violation involved an unwarrantable failure is based on

the theory that Ricky Clark, the continuous miner operator, was a de facto supervisor. If Clark
were a supervisor, the violation would clearly be an unwarrantable failure, since he intentionally
decided not to install the roadway posts and then went ahead and mined coal anyway. However,
he was not a supervisor, de facto or otherwise.

   The Commission has long held that the negligence of a "rank-and-file" miner cannot be

imputed to the operator for penalty assessment purposes. Fort Scot Fertilizer-Cullor, Inc., 17
FMSHRC 1112, 1116 (July 1995); Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (March
1988); Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (August 1982) (SOCCO). To determine
whether such a miner was an agent of the operator, whose negligence can be imputed to the
operator, "the Commission examines whether the miner was exercising managerial or
supervisory responsibilities at the time the negligent conduct occurred. U.S. Coal, Inc., 17
FMSHRC 1684, 1688 (October 1995)." Whayne Supply Co., 19 FMSHRC 447, 451 (March
1997).

    It is the Secretary’s position that the following factors made Clark a supervisor: (1) He

was certified as a foreman in the state of Kentucky; (2) In his prior employment he had worked
as a foreman for six years; (3) On occasion he had filled in as a foreman for the Respondent; (4)
He had authority to shut down the mine if methane was encountered; (5) He had the authority to
make decisions that affected the safety of miners; (6) He could determine how much of a cut
should be made when operating his continuous miner; and (7) The foreman and he worked
together and the foreman relied on him to make safety tests.

                                           208

     In Whayne Supply the Commission rejected a similar argument by the Secretary as

"lacking legal and evidentiary support" because "[a]lthough the record evidence indicates that
. . . was a highly experienced repairperson who needed little supervision and helped less
experienced employees, this does not convert him into a supervisor, much less a manager." Id.
The Commission further found that there was no evidence that he "exercised any of the
traditional indicia of supervisory responsibility such as the power to hire, discipline, transfer, or
evaluate employees. Nor was there any evidence that . . . ‘controlled’ the mine or a portion
thereof; rather he merely carried out routine duties involving the repair of Caterpillar machinery."
Id.

    Likewise, in this case there is no evidence that Clark exercised any of the traditional

indicia of supervisory responsibility. While the record demonstrates that he was an experienced
continuous miner operator who needed little supervision, he did not "control" the mine or any
part of it, but merely carried out routine duties involving the operation of a continuous mining
machine. Among those routine duties were being alert for methane and shutting down the miner
when it was encountered and determining how much of a cut to make, or not make, based on the
conditions encountered. There is no evidence to support the Secretary’s claim that he had the
authority to make decisions affecting the safety of other miners, or that he had any more
authority than any miner has when encountering hazardous conditions.7

    Consequently, I conclude that Clark was not a supervisor whose aggravated conduct can

be imputed to the operator. However, that does not end the inquiry because the Commission has
further held that: "[W]here a rank-and-file employee has violated the Act, the operator’s
supervision, training and disciplining of its employees must be examined to determine if the
operator has taken reasonable steps to prevent the rank-and-file miner’s violative conduct."
SOCCO at 1464. While this standard is normally applied in determining the operator’s
negligence for penalty purposes, the Commission has also confirmed that it applies in
determining whether an operator can be held responsible for an unwarrantable failure. Whayne
Supply at 452-53.

    Nonetheless, the Secretary did not present any evidence concerning Lone Mountain’s

supervision, training and disciplining of its employees. Nor is there sufficient evidence in the
record to make such a determination. Since the Secretary has failed to show that the
Respondent’s supervision, training and discipline of its employees was deficient, it must be
concluded that the company had taken reasonable steps to prevent the violative conduct.

   7
         This claim is apparently based on the following question and answer:

             Q. Does the company intrust you with the authority to make
             decisions which effect [sic] the safety of miners?

             A. I would think so.

(Tr. 194.)

                                             209

    Finally, it is uncontroverted that no supervisor was present when the violation was

committed. Cf. Midwest Material Co., 19 FMSHRC 30, 35 (January 1997). Accordingly,
inasmuch as Clark’s negligence cannot be imputed to Lone Mountain and there is no evidence
that the company engaged in aggravated conduct, I conclude that the violation was not the result
of an "unwarrantable failure." I will modify the citation appropriately.

                                Civil Penalty Assessment

   The Secretary has proposed a penalty of $655.00 for this violation. However, it is the

judge’s independent responsibility to determine the appropriate amount of penalty in accordance
with the six penalty criteria set out in section 110(i) of the Act, 30 U.S.C. § 820(i). Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18
FMSHRC 481, 483-84 (April 1996).

    With regard to the penalty criteria, the parties have stipulated, and I so find, that the

penalty will not adversely affect the company’s ability to continue in business and that the Darby
Fork No. 1 Mine is a large-sized coal mine. (Tr. 20-21.) I also find that Lone Mountain is a
large company. (Jt. Ex. 6.) Based on the company’s Assessed Violation History Report, I find
that the company has a relatively good history of previous violations. (Jt. Exs. 1 and 6.) I further
find that the Respondent demonstrated good faith in attempting to achieve rapid compliance after
notification of the violation.

    Turning to the question of gravity, I find this to be a serious violation. As previously

noted, pillaring is dangerous under the best of circumstances and mining the final stump is the
most dangerous aspect of pillaring. Mining the final stump without putting in the required
roadway posts is a situation fraught with the gravest consequences.

    Notwithstanding the fact that the miner operator’s negligence cannot be imputed to the

Respondent and that there is no evidence that the operator engaged in aggravated conduct, I find
that the operator was moderately negligent. The inspectors testified that while there is no
requirement in the regulations that the foreman be present when the final stump is being mined, it
is good mining practice for him to be present to monitor the mining and the roof conditions.
Indeed, they maintained that in their experience the foreman had always been present in such a
situation. In this case, the foreman was not present, but was off on another matter. It may be that
the miner operator got to the final stump sooner than anticipated, but I find that the company was
not blameless in not having someone in authority present.

    Taking all of the penalty criteria into consideration, I conclude that a penalty of $1,000.00

is appropriate for this violation.

                                           Order

   Citation No. 7456174 is MODIFIED by deleting the words "No. 2" and the words "the

timbers set for the roadway in the No. 2 heading were also twenty feet apart" from section 8, by
reducing the level of negligence from "high" to "moderate," by deleting the "unwarrantable
failure" designation and by making it a 104(a) citation, 30 U.S.C. § 814(a), instead of a 104(d)(1)
citation, 30 U.S.C. § 814(d)(1). The citation is AFFIRMED as modified.

   Lone Mountain Processing, Inc., is ORDERED TO PAY a civil penalty of $1,000.00

within 30 days of the date of this decision.

                                         T. Todd Hodgdon
                                         Administrative Law Judge




                                           211

                                   Appendix

Q. Mr. Cotton, when you went up to review this measurement, did they tell you
what they were measuring?

....

A. They said they were lined up with the timbers.

Q. Okay.

A. That’s what I --- .

Q. And then what were they measuring?

A. They said they were going to measure over to the next row of timbers over
here, sir.

Q. And did they measure over to the next row of timbers?

A. I don’t know for --- I mean, I didn’t do it, I was just standing there.

Q. You watched them do it?

A. As far as I know that’s what --- they said they did that.

Q. Could you tell whether they were or not?

A. I didn’t --- I didn’t check it myself[.] I just watched them do it.

Q. Yes. But when I see somebody measuring something I could see where the
end of the tape measure is and where it’s going to?

A. Well, like I said if it gets into this, to me, since I didn’t evaluate this area, this
plan calls for timbers up in here.

Q. I want to know what they were measuring.

A. From what I understood that’s what they said they were measuring and I
believe I even told them which I didn’t get to say on the record that was according
to Mr. Johnson and the company because I was very concerned about coming
back here.

Q. You did see the tape measure that said 16 feet; right?

                                       212

A. It was some point down --- back in --- .

Q. Wherever it was down there --- was it 16 feet from the timbers across the
intersection to that?

A. To these over here?

Q. Yes. Was it the red one?

A. Their 16 foot was in this area right here.

Q. But it wasn’t to the timbers?

A. Like I said I didn’t come over here and make sure that it was those timbers. I
just assume they did what they were saying they were doing. And like I said I
didn’t know, I just --- .

(Tr. 318-22.)

Distribution:

                                           213

J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215 (Certified Mail)

Anne Walthen O’Donnell, Esq., Arch Coal, Inc., City Place One, Suite 300, St, Louis, MO
63141 (Certified Mail)

Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, 250 West Main Street, Suite 1700,
Lexington, KY 40507 (Certified Mail)

/nj

                                          214