Proof Of High-Degree Of Risk

Proof of high degree of risk:

The loose material, trees, including the overhanging trees on the highwall were susceptible to failure because of continual blasting in the area, rain, frequent freezes, and thaws that would have further loosened and caused the material to fall creating a high degree of risk of crushing if not fatal injuries to miners working below.

Failure to record the hazardous conditions in the pre-shift and on-shift record book created a high degree of risk to the miners of unknown hazards. Also failing to record and note the conditions in the record book subjected additional crews to a high degree of danger of the hazards as well.

Proof the agent authorized, ordered, or carried out violation:

Mine Manager Mike Fugate
In addition, no drop bench or other evidence of highwall maintenance is apparent in the photos (Ex. 1 p. 15-20).

Position of defense:

Shepard said when they were working under the highwall, stripping, or moving the rock to get to the coal, the equipment operators were always about 20 feet away from the wall. Shepard also said when they made the drill bench above the highwall in Pit 12; an excavator sloped the highwall and pulled the trees down from the edge. He said that the highwall was on a slope where it had sloughed off because it had rained about 3 inches the previous day (Ex. 7).

Conclusion:

The clear preponderance of evidence does not support that Foremen Albert Grimmitt George Helton, and David Church agents of the operator knowingly authorized, ordered, or carried out the violations as
7, p. 1 & 2). In addition, Shepard knew the trees, and loose material on the edge of the highwall created a hazardous condition because he bermed one side of the highwall off to prevent entrance, but not the whole area due to the drill bench (Ex. 5, p. 2). The evidence supports that the S-5 Ailey Branch was procuring coal in the Lower Banner, Pit 12 when Inspector Crouse arrived on the mine property (Ex. 5, p. 2 Ex. 8, p. 2 & 3, & Ex. 11, p. 2). In addition, the photographs lead the objective "reasonably prudent person" to conclude that the condition of the highwall hall was obvious, that a fall-of-material hazard existed in this location (Ex. 1, p. 15-20). The evidence also established that at the beginning and throughout the shift Shepard and Fugate were at all times aware of the fact that trees and overhanging trees with exposed roots existed along the edge of the highwall in Pit 12. Both Shepard and Fugate are presumed to know the law and had supervisory authority to shut the Lower Banner, Pit 12 down and eliminate the hazardous conditions that existed on the highwall. However, they took no action to remove the trees from the edge of the highwall prior to the issuance of the violation; but due to the pressure to produce more coal, they decided to take a chance and